FIRST DIVISION

[G.R. No. 140634. September 12, 2002.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . ROBERTO

PANSENSOY , accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYNOPSIS

Appellant shot to death the lover of his wife. The trial court found him guilty of
murder. Hence, this appeal.
Appreciating the mitigating circumstance of passion and obfuscation in favor of
appellant, which is inconsistent with the ndings of treachery and evident premeditation,
the Court ruled that he was guilty only of homicide. Appellant alleged that he saw his wife
and the victim lying beside each other, clad only in their underwear. The wife claimed that
they were just resting inside the house at the time appellant arrived. Under any of these
two circumstances, it is easy to see how appellant acted with obfuscation because of
jealousy upon discovering his wife in the company of another man, and the brazen
admission by the man that he loved his wife. The situation was aggravated by the fact that
his wife brought their child along to her trysting place with her lover. Extreme emotional
pain could result from such a situation and produce such passion and anguish in the mind
of a betrayed husband as to deprive him of self-control.

SYLLABUS

1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; SELF-DEFENSE; BURDEN OF

PROOF. — Self-defense as a justifying circumstance may exempt an accused from criminal
liability when the following requisites are met, namely: (1) there has been an unlawful
aggression on the part of the victim; (2) the means employed to prevent or repel such
aggression are reasonably necessary; and (3) the person defending himself has not
provoked the victim into committing the act of aggression. The burden of proving by clear
and convincing evidence that the killing was justi ed is on the accused. In doing so, he
must rely on the strength of his own evidence and not on the weakness of that of the
prosecution. AICDSa

2. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FINDINGS OF

TRIAL COURT, RESPECTED. — The con icting 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 the truthfulness of Analie's testimony and not that of appellant's. We nd no
reason to reverse or alter the evaluation of the trial court. We reiterate the time tested
doctrine "that a trial court's assessment of the credibility of a witness is entitled to great
weight — even conclusive and binding if not tainted with arbitrariness or oversight of some
CD Technologies Asia, Inc. © 2020 cdasiaonline.com
 fact or circumstance of weight and influence."
3. ID.; ID.; ID.; NOT AFFECTED BY INCONSISTENCIES THAT DO NOT PERTAIN TO
THE CRIME. — The alleged aws in the testimony of Analie do not serve to impair her
credibility or diminish the truthfulness of her remarks as to who initiated the aggression
and red the shot. The allegedly incredible statements do not pertain to the act of killing,
but rather to minor or incidental matters which happened before and after the fact of
killing. Analie's testimony that she had been separated from appellant for three years
which, as pointed out by appellant, was belied by the age of their youngest daughter, does
not necessarily impair her credibility. Analie's 3-year separation from appellant does not
preclude Analie's still having a child with appellant.
4. ID.; ID.; ID.; NOT NEGATED BY AN ALLEGEDLY DIFFERENT REACTION ON AN
UNUSUAL INCIDENT. — As to Analie's version that appellant interrogated Hilario before
shooting him, su ce it to say that it is a matter of common observation that the reaction
of a person when confronted with a shocking or unusual incident varies. As admitted by
appellant himself, it was the rst time he saw his wife and Hilario together, veritably
con rming what Bisaya had told him some time in April 1994 that Bisaya always saw his
wife with someone else. It was not at all strange for appellant to have asked Hilario if he
really loved his wife. Were we to agree with the appellant and treat each strange or unusual
event in the occurrence of a crime, such as appellant's interrogation of the victim, as basis
for reasonable doubt, no criminal prosecution would prevail.
5. ID.; ID.; RULES OF ADMISSIBILITY; DISQUALIFICATION BY REASON OF
MARRIAGE; WAIVED WHEN NOT OBJECTED TO. — As the legitimate wife of appellant,
Analie's testimony would have been disregarded had appellant timely objected to her
competency to testify under the marital disquali cation rule . Under this rule, neither the
husband nor the wife may testify for or against the other without the consent of the
affected spouse, except in a civil case by one against the other, or in a criminal case for a
crime committed by one against the other or the latter's direct descendants or
ascendants. However, objections to the competency of a husband and wife to testify in a
criminal prosecution against the other may be waived as in the case of other witnesses
generally. The objection to the competency of the spouse must be made when he or she is
rst offered as a witness. In this case, the incompetency was waived by appellant's failure
to make a timely objection to the admission of Analie's testimony.
6. ID.; ID.; CREDIBILITY OF WITNESSES; POSITIVE TESTIMONY AGAINST AN
UNCORROBORATED AND DOUBTFUL SELF-DEFENSE, UPHELD. — From Analie's testimony,
it is all too apparent that the rst requisite of self-defense is absent. The unlawful
aggression did not come from the victim but from appellant himself. The aggression not
having come from the victim, appellant's claim of self-defense cannot prosper. The trial
court relied on Analie's testimony to convict appellant and we nd that her testimony is
su cient to support appellant's conviction. It is well-settled that the testimony of a lone
eyewitness, if credible and positive, is su cient to convict an accused. On the other hand,
a plea of self-defense cannot be justi ably appreciated, if it is not only uncorroborated by
independent and competent evidence, but also extremely doubtful by itself as in the
instant case.
7. ID.; ID.; PRESUMPTIONS; FLIGHT IS INDICATIVE OF GUILT AND NEGATES
SELF-DEFENSE. — Appellant's behavior after the incident runs contrary to his proclaimed
innocence. Appellant's act of eeing from the scene of the crime instead of reporting the
incident to the police authorities are circumstances highly indicative of guilt and negate his
CD Technologies Asia, Inc. © 2020 cdasiaonline.com
 claim of self-defense
8. CRIMINAL LAW; MITIGATING CIRCUMSTANCES; PASSION AND
OBFUSCATION; ELEMENTS. — In order to be entitled to the mitigating circumstance of
passion and obfuscation, the following elements should concur: (1) there should be an act
both unlawful and sufficient to produce such condition of mind; (2) the 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.
9. ID.; ID.; ID.; APPRECIATED IN CASE AT BAR. — Appellant was on his way home
from his duty as a security guard when he met Bisaya who told him that he saw his wife
and youngest child board a jeepney with the victim, Hilario. Appellant and Bisaya followed
them. Appellant claims that he saw his wife and the victim lying beside each other, clad
only in their underwear. Analie claims that they were just resting inside the house at the
time appellant arrived. Under any of these two circumstances, it is easy to see how
appellant acted with obfuscation because of jealousy upon discovering his legitimate wife
in the company of another man and the brazen admission by this man that he loved his
wife. The situation was aggravated by the fact that Analie brought their child along to her
trysting place with Hilario. Extreme emotional pain could result from such a situation and
produce such passion and anguish in the mind of a betrayed husband as to deprive him of
self-control. To be blinded by passion and obfuscation is to lose self-control. In this case,
there is a clear showing that there were causes naturally tending to produce such powerful
passion as to deprive the accused of reason and self-control. Furthermore, the act
producing the obfuscation was not far removed from the commission of the crime by a
considerable length of time, during which the appellant might have regained his
equanimity. It appears that only a few minutes elapsed between the time appellant
discovered the two in the room and the killing. Thus, appellant can be given the bene t of
this mitigating circumstance. TcCSIa

10. ID.; QUALIFYING CIRCUMSTANCES; TREACHERY AND EVIDENT

PREMEDITATION; NOT APPRECIATED IN THE PRESENCE OF PASSION AND
OBFUSCATION. — In view of our earlier pronouncement crediting in favor of appellant the
mitigating circumstance of passion and obfuscation, we have to rule out treachery and
evident premeditation as qualifying circumstances. Treachery cannot co-exist with passion
and obfuscation. The reason for this is that in passion, the offender loses his control while
in treachery the means employed are consciously adopted. One who loses reason and self-
control cannot deliberately employ a particular means, method or form of attack in the
execution of the crime. Similarly, the aggravating circumstance of evident premeditation
cannot co-exist with the circumstance of passion and obfuscation. The essence of
premeditation is that the execution of the criminal act must be preceded by calm thought
and re ection upon the resolution to carry out the criminal intent during the space of time
sufficient to arrive at a composed judgment.
11. ID.; ID.; EVIDENT PREMEDITATION; ELEMENTS; NOT PRESENT IN CASE AT
BAR. — The elements of evident premeditation as a qualifying circumstance are: (1) the
time when the offender determined to commit the crime; (2) an act manifestly indicating
that the culprit has clung to his determination; and (3) a su cient lapse of time between
the determination and execution, to allow him to re ect upon the consequences of his act
and to allow his conscience to overcome the resolution of his will. Verily, a nding that
there was a preconceived plan to kill would negate passion and obfuscation. However,
nothing in the records shows how and when appellant hatched his plan to kill, or how much
time had elapsed before appellant carried out his plan. On the contrary, appellant was on
CD Technologies Asia, Inc. © 2020 cdasiaonline.com
 his way home from his duty as a security guard when he chanced upon Bisaya who told
him that he saw his wife and child with Hilario. The mere fact that he brought his gun along
or happened to have it in his person does not, by itself, necessarily indicate a preconceived
plan to kill. The carrying of arms, if customary, does not indicate the existence of the
second requisite.
12. ID.; HOMICIDE; PROPER PENALTY CONSIDERING ONE MITIGATING
CIRCUMSTANCE AND APPLYING THE INDETERM INATE SENTENCE LAW. — The crime
proven is homicide with the mitigating circumstance of passion and obfuscation. The
penalty for homicide under Article 249 of the Revised Penal Code is reclusion temporal.
With the mitigating circumstance of passion and obfuscation, the penalty which may be
imposed pursuant to the second paragraph of Article 64 of the Revised Penal Code is
reclusion temporal in its minimum period. Appellant is entitled to the bene t of the
Indeterminate Sentence Law as well, which allows the imposition of an indeterminate
sentence, with the minimum period within the range of the penalty next lower to that
prescribed by law and the maximum period within the range of the latter after appreciating
any modifying circumstances. Appellant can thus be sentenced to an indeterminate
penalty ranging from eight (8) years of prision mayor as minimum to fourteen (14) years
and eight (8) months of reclusion temporal as maximum.
13. CIVIL LAW; DAMAGES; CIVIL INDEMNITY, MORAL DAMAGES AND AWARD
FOR LOSS OF EARNING CAPACITY, AWARDED IN CASE AT BAR. — Consistent with
prevailing jurisprudence, we sustain the award of P50,000.00 as indemnity to the heirs of
Hilario. The amount is awarded without need of proof other than the commission of the
crime and the consequent death of the victim. 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.
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.
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
P20,000.00 to P50,000.00 in line with current jurisprudence for the pain wrought by
Hilario's death as testi ed to by Gregoria, mother of the victim. The trial court overlooked
the award for loss of earning capacity despite the testimony of Gregoria on her son's daily
income. The absence of documentary evidence to substantiate the claim for the loss will
not preclude recovery of such loss. Loss of earning capacity is computed based on the
following formula. Net Earning Capacity equals life expectancy multiplied by Gross Annual
Income (GAI) minus living expenses (50% of GAI).

DECISION

CARPIO , J : p

The Case
Before this Court is an appeal from the Decision 1 dated September 13, 1999 in
Criminal Case No. 94-11527 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 perpetua. The trial court also ordered
CD Technologies Asia, Inc. © 2020 cdasiaonline.com
 appellant to pay the heirs of the victim P50,000.00 as civil indemnity, P40,000.00 as actual
damages and P20,000.00 as moral damages.
The Charge
Asst. Provincial Prosecutor Rolando L. Gonzales led an Information 2 charging
appellant with the crime of murder, committed as follows:
"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 intent to kill and by
means of treachery and evident premeditation, did, then and there willfully,
unlawfully and feloniously attack, assault and shoot one Hilario Reyes y Inovero,
hitting him on his forehead, thereby in icting upon him a mortal gunshot wound,
which directly caused his death.
CONTRARY TO LAW."

Arraignment and Plea

When arraigned on February 20, 1995, the appellant, assisted by his counsel, entered
a plea of not guilty. 3 Thereafter, trial on the merits followed.
The Trial
The prosecution presented the following witnesses: (1) Analie Pansensoy,
eyewitness to the actual shooting of the victim; (2) Dr. Emmanuel Aranas, the medico-legal
o cer who conducted the autopsy on the victim; (3) SPO1 Reynaldo Anclote, the police
o cer who conducted the investigation of the incident; (4) Gregoria Reyes, mother of the
victim; and (5) Rogelio Fullente, neighbor of the victim. For its part, the defense presented
the appellant as its lone witness.
Version of the Prosecution
Analie Pansensoy ("Analie" for brevity), twenty-eight years old, is the legitimate wife
of appellant. She testi ed 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, Rizal. Hilario was lying down inside the house. She
stood up when she heard a knocking on the door. As she 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 asked him if he really loves his wife. Hilario answered in the a rmative.
Appellant next asked Hilario if he was still single. Hilario answered yes. Appellant counted
one to three and at the count of three shot Hilario. Hilario was hit on the forehead and
sprawled on the ground. 4
Dr. Emmanuel Aranas, physician, conducted the autopsy on the victim at the St.
James Funeral Parlor at past midnight on May 9, 1994. He found a single gunshot wound
on the forehead which was the cause of death. He opined that the entry shows the area of
smudging which indicates that Hilario was shot at close range. The distance of the muzzle
of the gun from the forehead could be less than three inches. He also opined that the
person who fired the shot and Hilario were facing each other. 5
SPO1 Reynaldo Anclote, member of the Philippine National Police, conducted the
investigation on the shooting of Hilario. He took the statements of Gregoria Reyes and
CD Technologies Asia, Inc. © 2020 cdasiaonline.com
 Analie in the police station a day after the incident. He did not conduct an ocular inspection
at the scene of the crime. 6
Gregoria Reyes ("Gregoria" for brevity), mother of Hilario, testi ed that she came to
know about the death of her son through a neighbor, Roger. She found out that her son
was dead upon arrival at the hospital and was taken to the funeral parlor. She saw the
gunshot wound on the forehead of her son. On the same night of May 8, 1994, she went to
the police station where she saw Analie give her statement to the police. She also gave her
statement to the police. As a result of the death of her son, she incurred expenses in the
amounts of P10,000.00 and P30,000.00 for the funeral and the burial, respectively. At the
time of his death, her son was managing two passenger jeepneys, one of which he was
also driving. He was earning P800.00 a day. 7
Rogelio Fullente ("Rogelio" for brevity), fty-six years old, is a co-driver of Hilario in
the Antipolo-Marikina route. He was the neighbor referred to by Gregoria in her testimony
as Roger, who reported to her the shooting incident. He has known Hilario for ten to fteen
years. In the evening of May 8, 1994, he was in his home in Lumang Bayan which was about
ten meters away from where Hilario was staying. According to him, their houses were
separated by a driveway which could accommodate one jeep. He heard several knocks
and opened the door of his house. When he opened the door he found out that somebody
was knocking on the door of Hilario and ordering him to come out. The rst time he saw
the man knocking on Hilario's door, the man was not carrying anything. When he heard a
gunshot, he opened the door again and saw the man carrying something before he left.
Rogelio further narrated that when the man asked Hilario to come out, Hilario was standing
by the door. The man asked Hilario if he loved his wife and Hilario answered yes. The man
then red a shot and Hilario's head bent forward before he fell down. He does not know
the caliber of the gun but just heard the gunshot. He went to the parents of Hilario to
report the incident. On cross-examination, Rogelio testi ed that when appellant knocked
on the door, it was Hilario who opened the door. Hilario sat on the bench by the door. When
Hilario answered yes to appellant's question of whether he loved his wife, appellant
immediately red a shot. Rogelio testi ed that he watched appellant re the shot and then
left to report the incident to the parents of Hilario. 8
Version of the Defense
As expected, the defense had a different version as told by the appellant himself.
Appellant, twenty-eight years old and a security guard, invoked self-defense in his
testimony. He testi ed that Analie is his wife and they have three children. According to
him, their relationship as husband and wife was normal.
On May 8, 1994, at about 6:30 p.m., a certain Amadong Bisaya ("Bisaya" for brevity)
told him that he saw his wife with their youngest child and "Tisoy," referring to Hilario,
board a jeep on their way to Lumang Bayan. He had met Bisaya before when the latter told
him some time in April 1994 that he always saw appellant's wife with another man. He
asked Bisaya to accompany him to Lumang Bayan where Bisaya pointed to the room
where his wife and "Tisoy" entered.
The appellant kicked the door of the room and there he found his wife and "Tisoy"
lying beside each other. They were only clad in their underwear. He dragged his wife out of
the room by her hair and while doing so, he saw "Tisoy" pull a gun from the table which was
covered with clothes. He let go of his wife and jumped on "Tisoy" to grab the gun.

CD Technologies Asia, Inc. © 2020 cdasiaonline.com

 While they struggled for possession of the gun he hit the testicles of "Tisoy" with his
knees. "Tisoy" fell on his knees but was still holding the gun. Still grappling for possession
of the gun, appellant held on to the back portion of the gun and part of the trigger, while his
other hand held Hilario's hand which was holding the butt of the gun. When Hilario knelt
down, appellant was able to twist Hilario's hand and to point the barrel of the gun towards
the latter.
The gun suddenly went off. At that moment, "Tisoy" was holding the trigger of the
gun. "Tisoy" was shot on the head and fell down. It was "Tisoy" who was holding the trigger
when the gun red and hit him on the head. "Tisoy" was still holding the gun when he fell to
the floor.
He confronted his wife and pulled her hair and slapped her. His wife was just seated
in the corner of the room. He asked her where their child was. But before she could answer,
their child went inside the room and embraced her mother very tightly. He tried to pull their
daughter away from Analie but the latter did not let go of the child. He told Analie that he
would kill her too if she did not release the child. He started to count "one, two," which
made his wife release their daughter. He left the room with the child and proceeded to
their house. "Tisoy" was still sprawled on the ground face down when he left." 9
The Trial Court's Ruling
The trial court accorded full faith and credence to the testimony of Analie and
rejected the version of the appellant that he acted in self-defense. It found the testimony of
Analie credible and observed that she remained unperturbed during the cross-examination.
The trial court also noted that appellant, who was then a security guard, was charged by
his employer with the crime of quali ed theft for the loss of a .38 caliber revolver.
Appellant allegedly committed the theft on May 8, 1994, the very same day the shooting
incident happened. The gun used in shooting the victim was not found at the scene of the
crime but the slug recovered was that of a .38 caliber revolver. Although appellant was
subsequently acquitted of the charge, the trial court considered this as "evidence of a
circumstance connected with the crime." The trial court further noted that appellant went
into hiding from the time the shooting incident happened until the case was led in court
on August 24, 1994.
The trial court pronounced judgment thus:
"WHEREFORE, premises considered, the accused is hereby found guilty
beyond reasonable doubt with the crime of murder and is hereby sentenced to the
penalty of reclusion perpetua. The accused is hereby further ordered to pay the
heirs of Hilario Reyes y Inovero the amount of P50,000.00 as death indemnity and
P40,000.00 and P20,000.00 as actual or compensatory and moral damages,
respectively.

Costs against the accused.

SO ORDERED." 1 0

Hence, the instant appeal.

The Issues
Appellant is before this Court raising the following assignment of errors:
"I
CD Technologies Asia, Inc. © 2020 cdasiaonline.com
 THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME CHARGED.
II
THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED OF THE
CRIME OF MURDER DESPITE FAILURE OF THE PROSECUTION TO PROVE ANY
OF THE QUALIFYING CIRCUMSTANCES."

The Court's Ruling

The appeal is partly meritorious.
First Issue: Self-Defense
Appellant insists that he acted in self-defense. Self-defense as a justifying
circumstance may exempt an accused from criminal liability when the following requisites
are met, namely: (1) there has been an unlawful aggression on the part of the victim; (2) the
means employed to prevent or repel such aggression are reasonably necessary; and (3)
the person defending himself has not provoked the victim into committing the act of
aggression. 1 1 The burden of proving by clear and convincing evidence that the killing was
justi ed is on the accused. 1 2 In doing so, he must rely on the strength of his own evidence
and not on the weakness of that of the prosecution. 1 3
Appellant asserts that the unlawful aggressor was the victim and his death could be
attributed to himself alone. By his own testimony, appellant tried to prove unlawful
aggression on the part of Hilario. According to him, he kicked the door, and when it opened
he saw his wife and Hilario inside the room clad in their underwear. He pulled the hair of his
wife and dragged her outside while she was embracing him. At this point, Hilario pulled a
gun from the table. He let go of his wife, jumped on Hilario and grappled for possession of
the gun. While trying to wrest the gun from Hilario, he hit Hilario's testicles with his knees.
Hilario fell on the floor but was still holding the gun. When Hilario knelt down, appellant was
able to hold and twist Hilario's hand, pointing the gun towards the latter. The gun suddenly
went off and Hilario was hit on the head.
On the other hand, Analie testi ed that when she opened the door to their room, she
saw appellant holding a gun. She embraced appellant and tried to wrest the gun from him
but failed. Hilario went out and sat on a bench. Appellant approached him and asked him
questions. Appellant counted and, at the count of three, shot Hilario in the head.
The con icting 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 the truthfulness of
Analie's testimony and not that of appellant's.
Undeterred, appellant's rst assignment of error is focused on the su ciency of the
evidence for the prosecution, questioning in particular the trial court's assessment of the
credibility of the prosecution's eyewitness, Analie. According to him, Analie's testimony is
awed as she insisted that she and appellant had been separated for more than three
years but this is belied by the fact that their youngest daughter is barely a year old. He also
points out that appellant's version that he dragged his wife outside by pulling her hair was
more believable and in accord with human behavior rather than Analie's version that
appellant took time to interrogate the victim regarding how much the latter loved his wife
CD Technologies Asia, Inc. © 2020 cdasiaonline.com
 and other personal circumstances before shooting him.
We find no reason to reverse or alter the evaluation of the trial court. We reiterate the
time tested doctrine "that a trial court's assessment of the credibility of a witness is
entitled to great weight — even conclusive and binding if not tainted with arbitrariness or
oversight of some fact or circumstance of weight and in uence." 1 4 The alleged aws in
the testimony of Analie do not serve to impair her credibility or diminish the truthfulness of
her remarks as to who initiated the aggression and fired the shot.
The allegedly incredible statements do not pertain to the act of killing, but rather to
minor or incidental matters which happened before and after the fact of killing. Analie's
testimony that she had been separated from appellant for three years which, as pointed
out by appellant, was belied by the age of their youngest daughter, does not necessarily
impair her credibility. Analie's 3-year separation from appellant does not preclude Analie's
still having a child with appellant. As to Analie's version that appellant interrogated Hilario
before shooting him, su ce it to say that it is a matter of common observation that the
reaction of a person when confronted with a shocking or unusual incident varies. 1 5 As
admitted by appellant himself, it was the rst time he saw his wife and Hilario together,
veritably con rming what Bisaya had told him some time in April 1994 that Bisaya always
saw his wife with someone else. It was not at all strange for appellant to have asked
Hilario if he really loved his wife. Were we to agree with the appellant and treat each
strange or unusual event in the occurrence of a crime, such as appellant's interrogation of
the victim, as basis for reasonable doubt, no criminal prosecution would prevail. 1 6
In any event, a thorough evaluation of the transcript of stenographic notes indicates
that Analie, as observed by the trial court, testi ed in a candid and straightforward manner
as follows:
"Q: Why do you know said Hilario Reyes?
A: He is my live-in partner.

Q: When did you start to be the live-in partner of Hilario Reyes?

A: February 1994.
Q: Up to what time did you become to be the live-in partner of Hilario Reyes?
A: Three months.
Q: What was the reason why your live-in relationship lasted only three
months?
A: Because Roberto killed Hilario Reyes.

Q: When was this Hilario Reyes killed?

A: May 8, 1994.
Q: Where was he killed?
A: At Lumang Bayan.
Q: In what municipality?

A: Lumang Bayan, Antipolo, Rizal.

Q: How did you know that he was killed?
CD Technologies Asia, Inc. © 2020 cdasiaonline.com
 A: He was shot by Roberto Pansensoy.
Q: How did you know that he was shot by Roberto Pansensoy?
A: Because Roberto went there and he was holding a gun.
Q: On May 8, 1994 that you said Hilario Reyes was shot by Roberto
Pansensoy, where were you?
A: Inside the house, sir.

Q: Whose is that house you are referring to?

A: We are renting that house.
Q: With whom?
A: Hilario Reyes.
Q: Before this Hilario Reyes was shot, what was he doing?

A: He was already lying down.

Q: Lying down where?
A: Inside the house, sir.
Q: How long was he lying down?
A: Around fifteen minutes.

Q: After lying down for fifteen minutes, what did you do next?
A: I stood up because Roberto knocked on the door.
Q: What happened next after this Roberto knocked on the door?
A: I opened the door and I saw Roberto holding a gun.

Q: After you opened the door and you saw Roberto holding a gun, what
happened next?

A: I embraced Roberto and tried to wrestle the gun away from him but I did
not succeed.
Q: When you were not able to succeed in taking the gun away from him, what
happened next?
A: Hilario went out, sat on the bench and Roberto approached him.

Q: And after Hilario went out and sat on the bench and Roberto approached
him, what happened next?

A: Roberto asked Hilario; do you really love my wife? And Hilario said, Yes.
Q: Who was this wife Roberto was referring to when he asked Hilario?
A: That's me.
Q: After Hilario answered that he really loved his wife which is you that is
being referred to, what happened next?

CD Technologies Asia, Inc. © 2020 cdasiaonline.com

 A: Roberto asked Hilario; are you still single, are you not married?
Q: What was the response of Hilario if there was any?
A: He answered yes.
Q: What happened next?
A: Roberto counted one to three and at the count of 3 he shot Hilario.

Q: Was Hilario hit by the shot that was made by Roberto?

A: Hilario was hit on the forehead and he sprawled on the ground." 1 7

Analie remained straightforward and consistent all throughout her cross-

examination:
Q: Madam witness, you stated that you are the wife of the accused Roberto
Pansensoy, is that correct?
A: Yes, sir.
Q: Are you legally married to accused Roberto Pansensoy?
A: Yes, sir.

Q: And if you remember, when were you married?

A: 1990.

Q: Where were you married?

A: At Negros Occidental.
Q: You stated that on May 8, 1994, you were at Lumang Bayan, Antipolo,
Rizal, am I correct?

A: Yes, sir.
Q: In what particular place at Lumang Bayan is that?

A: Inside the village.

Q: What were you doing then inside the village?

A: We are renting a house there.

Q: Who is your companion while renting that house?

A: Hilario Reyes.

Q: And who is this Hilario Reyes?

A: The victim.
Q: What is your relation with the victim?

A: Live-in partner.
Q: How long have you been living in together, Madam Witness?

A: Three months.
CD Technologies Asia, Inc. © 2020 cdasiaonline.com
 Q: On that date May 8, 1994 you stated a while ago that you were resting
together with Hilario Reyes, is that correct?

A: Yes, sir.
Q: Inside the room of the house being rented by Hilario Reyes?

A: Yes, sir.
Q: What was Hilario Reyes doing then?

A: He was laying (sic).

Q: Lying where?
A: Inside.

Q: Thereafter, what happened next while Hilario Reyes was resting?

A: I heard Roberto knock on the door.

Q: After which, what happened next, Madam Witness?

A: I opened the door and I saw Roberto.

Q: What did you do upon seeing Roberto on the door?

A: He was holding a gun and I embraced him, because I wanted to take the
gun away from him.
Q: Is it not because you feel that Roberto Pansensoy might inflict harm on
your living in partner, is that correct?

A: Yes, sir, I wanted to avoid trouble." 1 8

From Analie's testimony, it is all too apparent that the rst requisite of self-defense
is absent. The unlawful aggression did not come from the victim but from appellant
himself. The aggression not having come from the victim, appellant's claim of self-defense
cannot prosper. The trial court relied on Analie's testimony to convict appellant and we find
that her testimony is sufficient to support appellant's conviction.
As the legitimate wife of appellant, Analie's testimony would have been disregarded
had appellant timely objected to her competency to testify under the marital
disquali cation rule . Under this rule, neither the husband nor the wife may testify for or
against the other without the consent of the affected spouse, except in a civil case by one
against the other, or in a criminal case for a crime committed by one against the other or
the latter's direct descendants or ascendants. 1 9 However, objections to the competency
of a husband and wife to testify in a criminal prosecution against the other may be waived
as in the case of other witnesses generally. 2 0 The objection to the competency of the
spouse must be made when he or she is rst offered as a witness. 2 1 In this case, the
incompetency was waived by appellant's failure to make a timely objection to the
admission of Analie's testimony.
We note that Rogelio was presented to corroborate Analie's testimony, but he gave
a rather confusing account of what he allegedly saw or heard on the night of the shooting.
During his direct examination, he claimed that he heard a gunshot, but on cross-
examination he claimed that he opened the door of his house and actually saw appellant
shoot Hilario. In any event, it is well-settled that the testimony of a lone eyewitness, if
CD Technologies Asia, Inc. © 2020 cdasiaonline.com
 credible and positive, is su cient to convict an accused. 2 2 On the other hand, a plea of
self-defense cannot be justi ably appreciated, if it is not only uncorroborated by
independent and competent evidence, but also extremely doubtful by itself 2 3 as in the
instant case.
Moreover, appellant's behavior after the incident runs contrary to his proclaimed
innocence. Appellant's act of eeing from the scene of the crime instead of reporting the
incident to the police authorities are circumstances highly indicative of guilt and negate his
claim of self-defense. 2 4
Lastly, we nd it unnecessary to consider as corroborative evidence the charge of
quali ed theft for the loss of a .38 caliber revolver led against appellant by his employer
security agency. The trial court discussed at length that the offense was committed on the
same day the shooting incident happened and that the slug recovered from the scene of
the crime was from a .38 caliber revolver. According to the trial court, while the gun was
not recovered from the scene of the crime, it was "safe to assume that the accused had a
gun when he went to the place of the victim." While SPO1 Anclote testi ed regarding the
nature of the slug, he admitted that he never inspected the scene of the crime and that the
slug was merely handed to him by SPO2 Catanyag who was not presented in court to
testify. Hence, reliance on this as evidence of a circumstance connected with the crime
rests on shaky ground and is superfluous in light of Analie's credible eyewitness account.
Second Issue: Passion and Obfuscation
Appellant argues for the appreciation of the mitigating circumstance of passion and
obfuscation in his favor. According to appellant, when he con rmed with his own two eyes
that his wife was cheating on him, he lost his self-control and that his actuation arose from
a natural instinct that impels a husband to protect his wounded feelings. There is basis for
this claim.
In order to be entitled to the mitigating circumstance of passion and obfuscation,
the following elements should concur: (1) there should be an act both unlawful and
su cient to produce such condition of mind; (2) the 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. 2 5
Appellant was on his way home from his duty as a security guard when he met
Bisaya who told him that he saw his wife and youngest child board a jeepney with the
victim, Hilario. Appellant and Bisaya followed them. Appellant claims that he saw his wife
and the victim lying beside each other, clad only in their underwear. Analie claims that they
were just resting inside the house at the time appellant arrived. Under any of these two
circumstances, it is easy to see how appellant acted with obfuscation because of jealousy
upon discovering his legitimate wife in the company of another man and the brazen
admission by this man that he loved his wife. The situation was aggravated by the fact that
Analie brought their child along to her trysting place with Hilario. Extreme emotional pain
could result from such a situation and produce such passion and anguish in the mind of a
betrayed husband as to deprive him of self-control. To be blinded by passion and
obfuscation is to lose self-control. 2 6 In this case, there is a clear showing that there were
causes naturally tending to produce such powerful passion as to deprive the accused of
reason and self-control. 2 7
Furthermore, the act producing the obfuscation was not far removed from the
commission of the crime by a considerable length of time, during which the appellant
CD Technologies Asia, Inc. © 2020 cdasiaonline.com
 might have regained his equanimity. It appears that only a few minutes elapsed between
the time appellant discovered the two in the room and the killing. Thus, appellant can be
given the benefit of this mitigating circumstance.
Third Issue: Qualifying Circumstances
The Information alleges two qualifying circumstances: treachery and evident
premeditation. If appreciated, any one of these will qualify the killing to murder. However,
the trial court convicted appellant of murder without stating the circumstance which
qualified the killing to murder.
In view of our earlier pronouncement crediting in favor of appellant the mitigating
circumstance of passion and obfuscation, we have to rule out treachery and evident
premeditation as qualifying circumstances. Treachery cannot co-exist with passion and
obfuscation. 2 8 The reason for this is that in passion, the offender loses his control while in
treachery the means employed are consciously adopted. One who loses reason and self-
control cannot deliberately employ a particular means, method or form of attack in the
execution of the crime. 2 9
Similarly, the aggravating circumstance of evident premeditation cannot co-exist
with the circumstance of passion and obfuscation. 3 0 The essence of premeditation is that
the execution of the criminal act must be preceded by calm thought and re ection upon
the resolution to carry out the criminal intent during the space of time su cient to arrive at
a composed judgment. 3 1
In its Brief, the O ce of the Solicitor General ("OSG" for brevity) submits that evident
premeditation is present to qualify the killing to murder. According to the OSG,
premeditation is apparent from the fact that appellant went to the scene of the crime
already carrying the gun which he used to shoot the victim. The OSG argues that while
appellant may have been a security guard, he had no legal justi cation for bringing the gun
to the victim's residence. His act of bringing the gun to the crime scene is a clear indication
of his preconceived plan to kill his wife's lover. The elements of evident premeditation as a
qualifying circumstance are: (1) the time when the offender determined to commit the
crime; (2) an act manifestly indicating that the culprit has clung to his determination; and
(3) a su cient lapse of time between the determination and execution, to allow him to
re ect upon the consequences of his act and to allow his conscience to overcome the
resolution of his will. 3 2
Verily, a nding that there was a preconceived plan to kill would negate passion and
obfuscation.
However, nothing in the records shows how and when appellant hatched his plan to
kill, or how much time had elapsed before appellant carried out his plan. On the contrary,
appellant was on his way home from his duty as a security guard when he chanced upon
Bisaya who told him that he saw his wife and child with Hilario. The mere fact that he
brought his gun along or happened to have it in his person does not, by itself, necessarily
indicate a preconceived plan to kill. The carrying of arms, if customary, does not indicate
the existence of the second requisite. In People vs. Diokno, 3 3 the Court held that the
accused being from the province of Laguna and it being customary on the part of the
people of Laguna to carry knives, it cannot be inferred with certainty that the intention of
the accused who carried knives was to look for the deceased in order to kill him. In like
manner, it cannot be inferred with certainty that appellant already had the intention to kill
Hilario when appellant carried his gun on his way home after his duty as a security guard.
CD Technologies Asia, Inc. © 2020 cdasiaonline.com
 Fourth Issue: Damages and Penalty
In view of the foregoing, the crime proven in this case is not murder, but only
homicide 3 4 with the mitigating circumstance of passion and obfuscation. The penalty for
homicide under Article 249 of the Revised Penal Code is reclusion temporal. With the
mitigating circumstance of passion and obfuscation, the penalty which may be imposed
pursuant to the second paragraph of Article 64 of the Revised Penal Code is reclusion
temporal in its minimum period. Appellant is entitled to the bene t of the Indeterminate
Sentence Law as well, which allows the imposition of an indeterminate sentence, with the
minimum period within the range of the penalty next lower to that prescribed by law and
the maximum period within the range of the latter after appreciating any modifying
circumstances. Appellant can thus be sentenced to an indeterminate penalty ranging from
eight (8) years of prision mayor as minimum to fourteen (14) years and eight (8) months
of reclusion temporal as maximum. 3 5
As for damages, the trial court ordered appellant to pay the heirs of the victim the
following amounts: P50,000.00 as indemnity; P40,000.00 as actual damages; P20,000.00
as moral damages; and to pay the costs.
Consistent with prevailing jurisprudence, we sustain the award of P50,000.00 to the
heirs of Hilario. The amount is awarded without need of proof other than the commission
of the crime 3 6 and the consequent death of the victim.
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. 3 7 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. 3 8 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 P20,000.00 to P50,000.00 in line
with current jurisprudence 3 9 for the pain wrought by Hilario's death as testi ed to by
Gregoria, mother of the victim. 4 0
The trial court overlooked the award for loss of earning capacity despite the
testimony of Gregoria on her son's daily income. The absence of documentary evidence to
substantiate the claim for the loss will not preclude recovery of such loss. 4 1 Gregoria
testi ed that her son had been earning P800.00 daily as manager and driver of two
passenger jeepneys. 4 2 This amounts to P19,200.00 monthly excluding Sundays. The
defense did not object to Gregoria's testimony on her son's 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. 4 3 It was also established that at the time of his death,
Hilario was thirty-six (36) years old. 4 4 Loss of earning capacity is computed based on the
following formula: 4 5

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]

———
CD Technologies Asia, Inc. © 2020 cdasiaonline.com
 3

x 2(44) x P230,400 - P115,200

———
3

x 88 x P115,200
———
3

x 29.33 x P115,200

Net earning capacity = P3,379,200.00

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 de ned 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. AHCaES

SO ORDERED.
Davide, Jr., C.J., Vitug and Ynares-Santiago, JJ., concur.

Footnotes

1. Penned by Judge Mauricio M. Rivera, Rollo, pp. 18-24.

2. Original Records, pp. 1-2.

3. Ibid., p. 17.
4. TSN, January 31, 1996, pp. 3-6.
5. TSN, September 6, 1994, pp. 3-10.

6. TSN, October 20, 1995, pp. 2-12.

7. TSN, December 22, 1995, pp. 3-19.

8. TSN, January 26, 1999, pp. 2-16.

9. TSN, December 9, 1997, pp. 2-18; TSN, March 19, 1998, pp. 2-7.
10. Rollo, p. 24.
11. People vs. Dorado, 303 SCRA 61 (1999).
12. People vs. Tadeje, 310 SCRA 426 (1999).
CD Technologies Asia, Inc. © 2020 cdasiaonline.com
 13. People vs. Mendoza, 284 SCRA 705 (1998).
14. People vs. Reduca, 301 SCRA 516 (1998); People vs. Jimenez, 302 SCRA 607 (1998).
15. People vs. Aranjuez, 285 SCRA 466 (1998).
16. People vs. Calma, 295 SCRA 745 (1998).
17. TSN, January 31, 1996, pp. 3-6.
18. TSN, January 31, 1996, pp. 9-11.

19. Section 22, Rule 130 of the Revised Rules on Evidence provide as follows:
SEC. 22. Disqualification by reason of marriage. — During their marriage, neither the
husband nor the wife may testify for or against the other without the consent of the
affected spouse, except in a civil case by one against the other, or in a criminal case for
a crime committed by one against the other or the latter's direct descendants or
ascendants.
20. Ricardo J. Francisco, BASIC EVIDENCE, 1991 Ed.

21. Ibid.
22. People vs. Ferras, 289 SCRA 94 (1998).
23. People vs. De la Cruz, 291 SCRA 164 (1998).
24. People vs. Macuha, 310 SCRA 14 (1999).
25. People vs. Javier, 311 SCRA 576 (1999).
26. People vs. Leonor, 305 SCRA 285 (1999).
27. Ibid.
28. People vs. Germina, 290 SCRA 146 (1998).
29. Ibid.
30. People vs. Pagal, 79 SCRA 570 (1977).
31. Luis B. Reyes, THE REVISED PENAL CODE CRIMINAL LAW, 378 (1981).

32. People vs. Caisip, 290 SCRA 451 (1998).

33. 63 Phil. 601 (1936).

34. ART. 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.
35. People vs. Peña, 291 SCRA 606 (1998); People vs. Galapin & Beira, Jr., 293 SCRA 474
(1998); People vs. Pepito et al., 310 SCRA 128 (1999).

36. People vs. Adoc, 330 SCRA 626 (2000); People vs. Solis, 291 SCRA 529 (1998).
37. People vs. Juachon, 319 SCRA 761 (1999).
38. People vs. Oliano, 287 SCRA 158 (1998).
CD Technologies Asia, Inc. © 2020 cdasiaonline.com
 39. People vs. Silvestre, 307 SCRA 68 (1999).
40. TSN, December 22, 1995, p. 11.

41. See Note 36.

42. TSN, December 22, 1995, p. 12.

43. People vs. Barellano, 319 SCRA 567 (1999).

44. Original Records, p. 7.
45. Silvestre, supra.

CD Technologies Asia, Inc. © 2020 cdasiaonline.com