G.R. No.

152040             March 31, 2006

MARIKINA AUTO LINE TRANSPORT CORPORATION and FREDDIE L. SUELTO, Petitioners,

vs.
PEOPLE OF THE PHILIPPINES and ERLINDA V. VALDELLON, Respondents.

DECISION

CALLEJO, SR., J.:

Before the Court is a Petition for Review on Certiorari of the Decision 1 of the Court of Appeals (CA) in CA-G.R. CR No.
16739 affirming the Joint Decision of the Regional Trial Court (RTC) in Criminal Case No. Q-93-42629 and Civil Case No.
Q-93-16051, where Freddie Suelto was convicted of reckless imprudence resulting in damages to property.

Erlinda V. Valdellon is the owner of a two-door commercial apartment located at No. 31 Kamias Road, Quezon City. The
Marikina Auto Line Transport Corporation (MALTC) is the owner-operator of a passenger bus with Plate Number NCV-
849. Suelto, its employee, was assigned as the regular driver of the bus. 2

At around 2:00 p.m. on October 3, 1992, Suelto was driving the aforementioned passenger bus along Kamias Road,
Kamuning, Quezon City, going towards Epifanio de los Santos Avenue (EDSA). The bus suddenly swerved to the right and
struck the terrace of the commercial apartment owned by Valdellon located along Kamuning Road. 3 Upon Valdellon’s
request, the court ordered Sergio Pontiveros, the Senior Building Inspection Officer of the City Engineer’s Office, to
inspect the damaged terrace. Pontiveros submitted a report enumerating and describing the damages:

(1) The front exterior and the right side concrete columns of the covered terrace were vertically displaced from
its original position causing exposure of the vertical reinforcement.

(2) The beams supporting the roof and parapet walls are found with cracks on top of the displaced columns.

(3) The 6″ CHB walls at [the] right side of the covered terrace were found with cracks caused by this accident.

(4) The front iron grills and concrete balusters were found totally damaged and the later [sic] beyond repair. 4

He recommended that since the structural members made of concrete had been displaced, the terrace would have to be
demolished "to keep its monolithicness, and to insure the safety and stability of the building." 5

Photographs6 of the damaged terrace were taken. Valdellon commissioned Engr. Jesus R. Regal, Jr. to estimate the cost
of repairs, inclusive of labor and painting, and the latter pegged the cost at P171,088.46.7

In a letter dated October 19, 1992 addressed to the bus company and Suelto, Valdellon demanded payment
of P148,440.00, within 10 days from receipt thereof, to cover the cost of the damage to the terrace. 8 The bus company
and Suelto offered a P30,000.00 settlement which Valdellon refused. 9

Valdellon filed a criminal complaint for reckless imprudence resulting in damage to property against Suelto. After the
requisite preliminary investigation, an Information was filed with the RTC of Quezon City. The accusatory portion of the
Information reads:

That on or about the 3rd day of October 1992, in Quezon City, Philippines, the said accused, being then the driver and/or
person in charge of a Marikina Auto Line bus bearing Plate No. NVC-849, did then and there unlawfully, and feloniously
drive, manage, and operate the same along Kamias Road, in said City, in a careless, reckless, negligent, and imprudent
manner, by then and there making the said vehicle run at a speed greater than was reasonable and proper without
taking the necessary precaution to avoid accident to person/s and damage to property, and considering the condition of
the traffic at said place at the time, causing as a consequence of his said carelessness, negligence, imprudence and lack
of precaution, the said vehicle so driven, managed and operated by him to hit and bump, as in fact it hit and bump a
commercial apartment belonging to ERLINDA V. VALDELLON located at No. 31 Kamias Road, this City, thereby causing
damages to said apartment in the total amount of P171,088.46, Philippine Currency, to her damage and prejudice in the
total amount aforementioned.

CONTRARY TO LAW.10

Valdellon also filed a separate civil complaint against Suelto and the bus company for damages. She prayed that after
due proceedings, judgment be rendered in her favor, thus:
WHEREFORE, it is respectfully prayed of this Honorable Court to issue a writ of preliminary attachment against the
defendants upon approval of plaintiff’s bond, and after trial on the merits, to render a decision in favor of the plaintiff,
ordering the defendants, jointly and severally, to pay –

a) the total sum of P171,088.46 constituting the expenses for the repair of the damaged apartment of plaintiff,
with interests to be charged thereon at the legal rate from the date of the formal demand until the whole
obligation is fully paid;

b) the sum of not less than P20,000.00 each as compensatory and exemplary damages;

c) the sum of P20,000.00 as attorney’s fees and the sum of P1,000.00 for each appearance of plaintiff’s counsel;
and costs of suit;

PLAINTIFF further prays for such other reliefs as may be just and equitable in the premises. 11

A joint trial of the two cases was ordered by the trial court. 12

The trial court conducted an ocular inspection of the damaged terrace, where defendants offered to have it repaired and
restored to its original state. Valdellon, however, disagreed because she wanted the building demolished to give way for
the construction of a new one.13

During the trial, Valdellon testified on the damage caused to the terrace of her apartment, and, in support thereof,
adduced in evidence a receipt for P35,000.00, dated October 20, 1993, issued by the BB Construction and Steel
Fabricator for "carpentry, masonry, welding job and electrical [work]." 14

Pontiveros of the Office of the City Engineer testified that there was a need to change the column of the terrace, but
that the building should also be demolished because "if concrete is destroyed, [one] cannot have it restored to its
original position."15

Engr. Jesus Regal, Jr., the proprietor of the SSP Construction, declared that he inspected the terrace and estimated the
cost of repairs, including labor, at P171,088.46.

Suelto testified that at 2:00 p.m. on October 3, 1992, he was driving the bus on its way to Ayala Avenue, Makati, Metro
Manila. When he reached the corner of K-H Street at Kamias Road, Quezon City, a passenger jeepney suddenly crossed
from EDSA going to V. Luna and swerved to the lane occupied by the bus. Suelto had to swerve the bus to the right upon
which it hit the side front of the terrace of Valdellon’s two-door apartment. 16 Based on his estimate, the cost to the
damage on the terrace of the apartment amounted to P40,000.00.17 On cross-examination, Suelto declared that he saw
the passenger jeepney when it was a meter away from the bus. Before then, he had seen some passenger jeepneys on
the right trying to overtake one another. 18

Architect Arnulfo Galapate testified that the cost of the repair of the damaged terrace amounted to P55,000.00.19

On April 28, 1994, the trial court rendered judgment finding Suelto guilty beyond reasonable doubt of reckless
imprudence resulting in damage to property, and ordered MALTC and Suelto to pay, jointly and severally, P150,000.00
to Valdellon, by way of actual and compensatory damages, as well as attorney’s fees and costs of suit. The fallo of the
decision reads:

WHEREFORE, finding the accused FREDDIE SUELTO Y LIWAG guilty beyond reasonable doubt of the crime of Reckless
Imprudence Resulting in Damage to Property, said accused is hereby sentenced to suffer imprisonment of ONE (1) YEAR.

With respect to the civil liability, judgment is hereby rendered in favor of plaintiff Erlinda Valdellon and against
defendant Marikina Auto Line Transport Corporation and accused Freddie Suelto, where both are ordered, jointly and
severally, to pay plaintiff:

a. the sum of P150,000.00, as reasonable compensation sustained by plaintiff for her damaged apartment;

b. the sum of P20,000.00, as compensatory and exemplary damages;

c. the sum of P20,000.00, as attorney’s fees; and,

d. the costs of suit.

SO ORDERED.20
MALTC and Suelto, now appellants, appealed the decision to the CA, alleging that the prosecution failed to prove
Suelto’s guilt beyond reasonable doubt. They averred that the prosecution merely relied on Valdellon, who testified only
on the damage caused to the terrace of her apartment which appellants also alleged was excessive. Appellant Suelto
further alleged that he should be acquitted in the criminal case for the prosecution’s failure to prove his guilt beyond
reasonable doubt. He maintained that, in an emergency case, he was not, in law, negligent. Even if the appellate court
affirmed his conviction, the penalty of imprisonment imposed on him by the trial court is contrary to law.

In its Brief for the People of the Philippines, the Office of the Solicitor General (OSG) submitted that the appealed
decision should be affirmed with modification. On Suelto’s claim that the prosecution failed to prove his guilt for the
crime of reckless imprudence resulting in damage to property, the OSG contended that, applying the principle of res ipsa
loquitur, the prosecution was able to prove that he drove the bus with negligence and recklessness. The OSG averred
that the prosecution was able to prove that Suelto’s act of swerving the bus to the right was the cause of damage to the
terrace of Valdellon’s apartment, and in the absence of an explanation to the contrary, the accident was evidently due
to appellant’s want of care. Consequently, the OSG posited, the burden was on the appellant to prove that, in swerving
the bus to the right, he acted on an emergency, and failed to discharge this burden. However, the OSG averred that the
trial court erred in sentencing appellant to a straight penalty of one year, and recommended a penalty of fine.

On June 20, 2000, the CA rendered judgment affirming the decision of the trial court, but the award for actual damages
was reduced to P100,000.00. The fallo of the decision reads:

WHEREFORE, premises considered, the decision dated April 28, 1994, rendered by the court a quo is AFFIRMED with the
modification that the sum of P150,000.00 as compensation sustained by the plaintiff-appellee for her damaged
apartment be reduced to P100,000.00 without pronouncement as to costs.

SO ORDERED.21

Appellants filed a Motion for Reconsideration, but the CA denied the same. 22

MALTC and Suelto, now petitioners, filed the instant petition reiterating its submissions in the CA: (a) the prosecution
failed to prove the crime charged against petitioner Suelto; (b) the prosecution failed to adduce evidence to prove that
respondent suffered actual damages in the amount of P100,000.00; and (c) the trial court erred in sentencing petitioner
Suelto to one (1) year prison term.

On the first issue, petitioners aver that the prosecution was mandated to prove that petitioner Suelto acted with
recklessness in swerving the bus to the right thereby hitting the terrace of private respondent’s apartment. However,
the prosecution failed to discharge its burden. On the other hand, petitioner Suelto was able to prove that he acted in an
emergency when a passenger jeepney coming from EDSA towards the direction of the bus overtook another vehicle and,
in the process, intruded into the lane of the bus.

On the second issue, petitioners insist that private respondent was able to prove only the amount of P35,000.00 by way
of actual damages; hence, the award of P100,000.00 is barren of factual basis.

On the third issue, petitioner Suelto posits that the straight penalty of imprisonment recommended by the trial court,
and affirmed by the CA, is contrary to Article 365 of the Revised Penal Code.

The petition is partially granted.

On the first issue, we find and so resolve that respondent People of the Philippines was able to prove beyond reasonable
doubt that petitioner Suelto swerved the bus to the right with recklessness, thereby causing damage to the terrace of
private respondent’s apartment. Although she did not testify to seeing the incident as it happened, petitioner Suelto
himself admitted this in his answer to the complaint in Civil Case No. Q-93-16051, and when he testified in the trial
court.

Suelto narrated that he suddenly swerved the bus to the right of the road causing it to hit the column of the terrace of
private respondent. Petitioners were burdened to prove that the damage to the terrace of private respondent was not
the fault of petitioner Suelto.

We have reviewed the evidence on record and find that, as ruled by the trial court and the appellate court, petitioners
failed to prove that petitioner acted on an emergency caused by the sudden intrusion of a passenger jeepney into the
lane of the bus he was driving.

It was the burden of petitioners herein to prove petitioner Suelto’s defense that he acted on an emergency, that is, he
had to swerve the bus to the right to avoid colliding with a passenger jeep coming from EDSA that had overtaken
another vehicle and intruded into the lane of the bus. The sudden emergency rule was enunciated by this Court in Gan v.
Court of Appeals,23 thus:

[O]ne who suddenly finds himself in a place of danger, and is required to act without time to consider the best means
that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to adopt what subsequently
and upon reflection may appear to have been a better method unless the emergency in which he finds himself is
brought about by his own negligence.

Under Section 37 of Republic Act No. 4136, as amended, otherwise known as the Land Transportation and Traffic Code,
motorists are mandated to drive and operate vehicles on the right side of the road or highway:

SEC. 37. Driving on right side of highway. – Unless a different course of action is required in the interest of the safety and
the security of life, person or property, or because of unreasonable difficulty of operation in compliance herewith, every
person operating a motor vehicle or an animal-drawn vehicle on a highway shall pass to the right when meeting persons
or vehicles coming toward him, and to the left when overtaking persons or vehicles going the same direction, and when
turning to the left in going from one highway to another, every vehicle shall be conducted to the right of the center of
the intersection of the highway.

Section 35 of the law provides, thus:

Sec. 35. Restriction as to speed.—(a) Any person driving a motor vehicle on a highway shall drive the same at a careful
and prudent speed, not greater nor less than is reasonable and proper, having due regard for the traffic, the width of the
highway, and of any other condition then and there existing; and no person shall drive any motor vehicle upon a
highway at such a speed as to endanger the life, limb and property of any person, nor at a speed greater than will permit
him to bring the vehicle to a stop within the assured clear distance ahead (emphasis supplied).

In relation thereto, Article 2185 of the New Civil Code provides that "unless there is proof to the contrary, it is presumed
that a person driving a motor vehicle has been negligent, if at the time of mishap, he was violating any traffic
regulation." By his own admission, petitioner Suelto violated the Land Transportation and Traffic Code when he suddenly
swerved the bus to the right, thereby causing damage to the property of private respondent.

However, the trial court correctly rejected petitioner Suelto’s defense, in light of his contradictory testimony vis-à-vis his
Counter-Affidavit submitted during the preliminary investigation:

It is clear from the photographs submitted by the prosecution (Exhs. C, D, G, H & I) that the commercial apartment of Dr.
Valdellon sustained heavy damage caused by the bus being driven by Suelto. "It seems highly improbable that the said
damages were not caused by a strong impact. And, it is quite reasonable to conclude that, at the time of the impact, the
bus was traveling at a high speed when Suelto tried to avoid the passenger jeepney." Such a conclusion finds support in
the decision of the Supreme Court in People vs. Ison, 173 SCRA 118, where the Court stated that "physical evidence is of
the highest order. It speaks more eloquently than a hundred witnesses." The pictures submitted do not lie, having been
taken immediately after the incident. The damages could not have been caused except by a speeding bus. Had the
accused not been speeding, he could have easily reduced his speed and come to a full stop when he noticed the jeep.
Were he more prudent in driving, he could have avoided the incident or even if he could not avoid the incident, the
damages would have been less severe.

In addition to this, the accused has made conflicting statements in his counter-affidavit and his testimony in court. In the
former, he stated that the reason why he swerved to the right was because he wanted to avoid the passenger jeepney in
front of him that made a sudden stop. But, in his testimony in court, he said that it was to avoid a passenger jeepney
coming from EDSA that was overtaking by occupying his lane. Such glaring inconsistencies on material points render the
testimony of the witness doubtful and shatter his credibility. Furthermore, the variance between testimony and prior
statements renders the witness unreliable. Such inconsistency results in the loss in the credibility of the witness and his
testimony as to his prudence and diligence.

As already maintained and concluded, the severe damages sustained could not have resulted had the accused acted as a
reasonable and prudent man would. The accused was not diligent as he claims to be. What is more probable is that the
accused had to swerve to the right and hit the commercial apartment of the plaintiff because he could not make a full
stop as he was driving too fast in a usually crowded street. 24

Moreover, if the claim of petitioners were true, they should have filed a third-party complaint against the driver of the
offending passenger jeepney and the owner/operator thereof.

Petitioner Suelto’s reliance on the sudden emergency rule to escape conviction for the crime charged and his civil
liabilities based thereon is, thus, futile.
On the second issue, we agree with the contention of petitioners that respondents failed to prove that the damages to
the terrace caused by the incident amounted to P100,000.00. The only evidence adduced by respondents to prove
actual damages claimed by private respondent were the summary computation of damage made by Engr. Jesus R. Regal,
Jr. amounting to P171,088.46 and the receipt issued by the BB Construction and Steel Fabricator to private respondent
for P35,000.00 representing cost for carpentry works, masonry, welding, and electrical works. Respondents failed to
present Regal to testify on his estimation. In its five-page decision, the trial court awarded P150,000.00 as actual
damages to private respondent but failed to state the factual basis for such award. Indeed, the trial court merely
declared in the decretal portion of its decision that the "sum of P150,000.00 as reasonable compensation sustained by
plaintiff for her damaged apartment." The appellate court, for its part, failed to explain how it arrived at the amount
of P100,000.00 in its three-page decision. Thus, the appellate court merely declared:

With respect to the civil liability of the appellants, they contend that there was no urgent necessity to completely
demolish the apartment in question considering the nature of the damages sustained as a result of the accident.
Consequently, appellants continue, the award of P150,000.00 as compensation sustained by the plaintiff-appellee for
her damaged apartment is an unconscionable amount.

The damaged portions of the apartment in question are not disputed.

Considering the aforesaid damages which are the direct result of the accident, the reasonable, and adequate
compensation due is hereby fixed at P100,000.00.25

Under Article 2199 of the New Civil Code, actual damages include all the natural and probable consequences of the act
or omission complained of, classified as one for the loss of what a person already possesses (daño emergente) and the
other, for the failure to receive, as a benefit, that which would have pertained to him (lucro cesante). As expostulated by
the Court in PNOC Shipping and Transport Corporation v. Court of Appeals: 26

Under Article 2199 of the Civil Code, actual or compensatory damages are those awarded in satisfaction of, or in
recompense for, loss or injury sustained. They proceed from a sense of natural justice and are designed to repair the
wrong that has been done, to compensate for the injury inflicted and not to impose a penalty. In actions based on torts
or quasi-delicts, actual damages include all the natural and probable consequences of the act or omission complained of.
There are two kinds of actual or compensatory damages: one is the loss of what a person already possesses (daño
emergente), and the other is the failure to receive as a benefit that which would have pertained to him (lucro cesante). 27

The burden of proof is on the party who would be defeated if no evidence would be presented on either side. The
burden is to establish one’s case by a preponderance of evidence which means that the evidence, as a whole, adduced
by one side, is superior to that of the other. Actual damages are not presumed. The claimant must prove the actual
amount of loss with a reasonable degree of certainty premised upon competent proof and on the best evidence
obtainable. Specific facts that could afford a basis for measuring whatever compensatory or actual damages are borne
must be pointed out. Actual damages cannot be anchored on mere surmises, speculations or conjectures. As the Court
declared:

As stated at the outset, to enable an injured party to recover actual or compensatory damages, he is required to prove
the actual amount of loss with reasonable degree of certainty premised upon competent proof and on the best evidence
available. The burden of proof is on the party who would be defeated if no evidence would be presented on either side.
He must establish his case by a preponderance of evidence which means that the evidence, as a whole, adduced by one
side is superior to that of the other. In other words, damages cannot be presumed and courts, in making an award, must
point out specific facts that could afford a basis for measuring whatever compensatory or actual damages are borne. 28

The Court further declared that "where goods are destroyed by the wrongful act of defendant, the plaintiff is entitled to
their value at the time of the destruction, that is, normally, the sum of money which he would have to pay in the market
for identical or essentially similar goods, plus in a proper case, damages for the loss of the use during the period before
replacement.29

While claimants’ bare testimonial assertions in support of their claims for damages should not be discarded altogether,
however, the same should be admitted with extreme caution. Their testimonies should be viewed in light of claimants’
self-interest, hence, should not be taken as gospel truth. Such assertion should be buttressed by independent evidence.
In the language of the Court:

For this reason, Del Rosario’s claim that private respondent incurred losses in the total amount of P6,438,048.00 should
be admitted with extreme caution considering that, because it was a bare assertion, it should be supported by
independent evidence. Moreover, because he was the owner of private respondent corporation whatever testimony he
would give with regard to the value of the lost vessel, its equipment and cargoes should be viewed in the light of his self-
interest therein. We agree with the Court of Appeals that his testimony as to the equipment installed and the cargoes
loaded on the vessel should be given credence considering his familiarity thereto. However, we do not subscribe to the
conclusion that his valuation of such equipment, cargo, and the vessel itself should be accepted as gospel truth. We
must, therefore, examine the documentary evidence presented to support Del Rosario’s claim as regards the amount of
losses.30

An estimate of the damage cost will not suffice:

Private respondents failed to adduce adequate and competent proof of the pecuniary loss they actually incurred. It is
not enough that the damage be capable of proof but must be actually proved with a reasonable degree of certainty,
pointing out specific facts that afford a basis for measuring whatever compensatory damages are borne. Private
respondents merely sustained an estimated amount needed for the repair of the roof of their subject building. What is
more, whether the necessary repairs were caused only by petitioner’s alleged negligence in the maintenance of its
school building, or included the ordinary wear and tear of the house itself, is an essential question that remains
indeterminable.31

We note, however, that petitioners adduced evidence that, in their view, the cost of the damage to the terrace of
private respondent would amount to P55,000.00.32 Accordingly, private respondent is entitled to P55,000.00 actual
damages.

We also agree with petitioner Suelto’s contention that the trial court erred in sentencing him to suffer a straight penalty
of one (1) year. This is so because under the third paragraph of Article 365 of the Revised Penal Code, the offender must
be sentenced to pay a fine when the execution of the act shall have only resulted in damage to property. The said
provision reads in full:

ART. 365. Imprudence and negligence. – Any person who, by reckless imprudence, shall commit any act which, had it
been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period, to
prision correccional in its medium period; if it would have constituted a less grave felony, the penalty of arresto mayor in
its minimum and medium periods shall be imposed; if it would have constituted a light felony, the penalty of arresto
menor in its maximum period shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would, otherwise, constitute a grave
felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have constituted a less
serious felony, the penalty of arresto mayor in its minimum period shall be imposed.

When the execution of the act covered by this article shall have only resulted in damage to the property of another, the
offender shall be punished by a fine ranging from an amount equal to the value of said damages to three times such
value, but which shall in no case be less than 25 pesos.

A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by simple imprudence or
negligence, shall cause some wrong which, if done maliciously, would have constituted a light felony.

In the imposition of these penalties, the courts shall exercise their sound discretion, without regard to the rules
prescribed in Article 64 (Emphasis supplied).

In the present case, the only damage caused by petitioner Suelto’s act was to the terrace of private respondent’s
apartment, costing P55,000.00. Consequently, petitioner’s contention that the CA erred in awarding P100,000.00 by way
of actual damages to private respondent is correct. We agree that private respondent is entitled to exemplary damages,
and find that the award given by the trial court, as affirmed by the CA, is reasonable. Considering the attendant
circumstances, we rule that private respondent Valdellon is entitled to only P20,000.00 by way of exemplary damages.

IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The joint decision of the Regional Trial Court of
Quezon City is AFFIRMED WITH THE MODIFICATION that petitioner Suelto is sentenced to pay a fine of P55,000.00 with
subsidiary imprisonment in case of insolvency. Petitioners are ORDERED to pay to Erlinda V. Valdellon, jointly and
severally, the total amount of P55,000.00 by way of actual damages, and P20,000.00 by way of exemplary damages.

No pronouncement as to costs.

SO ORDERED.
G.R. No. 139542      June 21, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
INOCENCIO GONZALEZ, JR., accused-appellant.

DISSENTING OPINION

GONZAGA-REYES, J.:

Many unfortunate tragedies would not have happened if the improvident use of a firearm did not exacerbate a simple
altercation over traffic. This is one of them.

On a day intended to pay homage to the dead, a pregnant woman was shot to death in the course of her husband’s
altercation with the accused-appellant and his son along the Garden of Remembrance within the Loyola Memorial Park
in Marikina. The trial court found the accused guilty of the complex crime of murder and two counts of frustrated
murder and accordingly sentenced him to death. This case is before us on automatic review.

The details of what actually transpired in the few seconds immediately preceding the shooting are controverted by both
parties but the events leading to this tragedy are not disputed.

In the afternoon of October 31, 1998 at about 2:30 p.m. both the families of the private complainant Noel Andres and
that of the accused-appellant Inocencio Gonzalez were on their way to the exit of the Loyola Memorial Park. The
appellant was driving a white Isuzu Esteem with his grandson and three housemaids, while the private complainant was
driving a maroon Toyota FX with his pregnant wife Feliber Andres, his two year old son, Kenneth, his nephew Kevin and
his sister-in-law, Francar Valdez. At the intersection near the Garden of Remembrance, while the accused-appellant
Gonzalez was turning left towards the exit and the complainant Noel Andres was headed straight along the road to the
exit their two vehicles almost collided. Noel Andres was able to timely step on the brakes. The appellant continued
driving along his way while Noel Andres drove behind the appellant’s vehicle for some time and cut him off when he
found the opportunity to do so.1 Noel Andres then got out of his vehicle and knocked on the appellant’s car
window.2 This is as far as their versions of the incident coincide.

The prosecution’s version of the incident is that Noel Andres calmly told the appellant to be careful with his driving and
informed the latter that he, Andres, is with his family and to this Gonzalez allegedly replied, "Accidents are accidents,
what’s your problem." Andres stated that he saw the appellant turning red in anger so he decided to go back to his
vehicle when he was blocked by the appellant’s son who said, "Anong problema mo sa erpat ko." Andres testified that
he felt threatened and so he immediately boarded his vehicle, sat at the driver’s seat, closed the door, and partially
opened the car window just wide enough to talk back to appellant’s son, Dino. Suddenly, one of his passengers said
"Binaril kami". He turned to his wife Feliber Andres and saw her bloodied and unconscious. He turned around and saw
his son Kenneth and nephew Kevin were also wounded. Andres admitted in court that he and Dino were shouting at
each other so that he did not hear the shot. Andres then got out of his vehicle to warn the appellant not to flee. He then
took the wounded members of his family to the exit where there was an ambulance standing by. The three were then
taken to the Sta. Monica Hospital and were later transferred to the Quezon City Medical Center.

The defense’s version of the incident is that Andres cut the appellant’s path by positioning his FX obliquely along the
appellant’s lane from the latter’s left side. Andres then got out of his vehicle, stood beside the appellant’s car window,
and repeatedly cursed the appellant, "Putang ina mo, ang tanda-tanda mo na hindi ka pa marunong magmaneho. Ang
bobo-bobo mo."3 The appellant stayed inside his car and allegedly replied, "Pasensiya ka na hindi kita nakita, nasilaw
ako. Aksidente lang." The appellant Gonzalez and another witness for the defense, Quidic, testified that Noel Andres
went back to his vehicle to move it in such a way that it is straight in front of the appellant’s car. Andres allegedly got out
of his vehicle again and continued shouting and cursing at the appellant. 4 Dino, the appellant’s son, who rode in another
vehicle decided to go back when he did not see his father’s car behind him. When Dino arrived at the scene he
confronted Andres and the two had an altercation. Both Dino and the appellant stated that Andres remained outside his
vehicle during the altercation with Dino. When Andres suddenly reached for something inside his vehicle, Dino froze on
the spot where he stood. This prompted the appellant to get his gun from the glove compartment and feeling that his
son was threatened he got out of his car ready to shoot. When he saw that Andres did not have a weapon he put down
his hand holding the gun. This is when the appellant’s daughter Trisha who was riding in Dino’s car arrived at the scene,
walked past Dino and Andres, and pushed the appellant away. She hugged her father and in the process held his hand
holding the gun. The appellant tried to free his hand and with Trisha’s substantial body weight pushing against him the
appellant lost his balance and the gun accidentally fired. The accused stated that he did not know he shot somebody
until the private complainant’s sister-in-law, Francar Valdez, got out of the vehicle carrying a bloodied small boy. The
defense claims that the appellant did not try to flee and even told the complainant’s sister-in-law to take the wounded
to the hospital.

On November 4, 1998 an Information for the complex crime of Murder, Double Frustrated Murder and Attempted
Murder was filed against herein accused-appellant:

"That on or about the 31st day of October 1998, in the city of Marikina, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously with
intent to kill, attack, assault and employ personal violence by means of treachery and abuse of superior strength
upon the person of Noel Andres y Tomas, by then and there shooting him with a Glock cal. 9mm pistol but
instead hitting one Feliber Andres y Ordoño, on the left back portion of her head, thereby inflicting upon her
serious and mortal wound which directly caused her death, as well as hitting John Kenneth Andres y Ordoño and
Kevin Valdez y Ordoño physical injuries which ordinarily would have caused their death, thus performing all the
acts of execution which would have produced the crime of murder as a consequence, but nevertheless did not
produce it by reason of some cause or causes, independent of their will, that is, the timely and able medical
assistance rendered to John Kenneth Andres y Ordoño and Kevin Valdez y Ordoño to their damage and prejudice
as well as to the damage and prejudice of the heirs of Feliber Andres y Ordoño."

On arraignment the accused-appellant pleaded "not guilty" to the crimes charged.

The case records show that Feliber Andres, the wife of Noel Andres did not die instantaneously. She lived to give birth to
a baby girl5 by caesarian section and died the following morning on November 1, 1998. The Autopsy Report 6 states:

"FINDINGS: Fairly nourished, fairly developed female cadaver, with post mortem lividity. Conjunctivae are pale.
Lips and nail beds are cyanotic. Surgical incisions were noted at left tempero-parietal region. Surgical incisions is
also noted at the abdominal region secondary to a caesarian section.

HEAD: (1) gunshot wound, point of entry, left fronto-temporal region, measuring 1 by 0.9 cm, 9 cm from the
anterior midline, with a uniform abraided collar measuring 0.2 cm., directed posteriorwards, slightly
downwards, and medialwards, fracturing the frontal, and left temporal bones, lacerating the left cerebral
hemisphere, with a deformed slug fragment embedded and recovered at the posterior lobe of the left cerebral
hemisphere. (2) hematoma, left orbital region, measuring 4.5 by 2 cm, 4 cm from the anterior midline. There are
subdural and subarachnoidal hemorrages. Stomach contains 1 ½ glassful of partially digested food particles
mostly rice and meaty material.

CONCLUSION: Cause of death is gunshot wound on the head."

Kenneth and Kevin were treated for extraction of metallic fragments on their faces. They were discharged from the
hospital six days later or on November 6, 1998.

On June 25, 1999 the trial court rendered judgement finding that the shooting was attended by the qualifying
circumstance of treachery and held the appellant guilty of the complex crime of murder for the death of Feliber Andres
and for two counts of frustrated murder for the injuries sustained by Kenneth Andres and Kevin Valdez and sentenced
the appellant to the maximum of the imposable penalty which is death. The trial court held:

"Beforehand, the Court takes note of the judicial admissions on the verbal declarations of the accused that the
court ‘a quo’ has jurisdiction over the case; that he owns the black Gluck 9 mm. automatic pistol; that the said
gun will never fire even if he drops it; that only one bullet was fired from his gun; and that the victim Feliber
Andres is already dead. With this exegesis and the declarations in open court of the eyewitness of both the
prosecution and some of the defense, there is no real dispute on the antecedent facts showing that the accused
fired on Noel Andres but instead hit and caused the fatal injuries to the victims John Kenneth Andres, Kevin
Valdez and Feliber Andres resulting to the ultimate death of the latter. The court takes further judicial
admissions of the accused made in their memorandum demonstrating the existence of five (5) sequences of
events leading to the death of Feliber Andres and the wounding of John Kenneth Andres and Kevin Valdez which
are as follows: First is when Noel Andres overtook the car driven of the accused and cut cross his path; Second is
when Noel Andres alighted from his vehicle and confronted Inocencio; Third is when Noel had an argument with
Dino Gonzalez, the son of the accused; Forth is when, Inocencio seeing his son having confrontation with Noel,
got his gun to protect Dino; and Fifth is when Inocencio had a struggle with his daughter. Trisha Gonzalez, who
tried to reach for the gun and as a result of which Inocencio lost his balance and as he was falling backward to
his side, his right arm holding the gun hit the rear window of the Tamaraw FX van and the gun accidentally went
off hitting the victim, who were all then inside the van.
The court likewise take judicial notice on the feature of the automatic pistol used in this case which is capable of
unquestionable demonstration or ought to be known to judges because of their judicial functions. Practically,
the stages before an automatic firearm would be capable of firing are as follows: 1) the loading of a bullet into
the chamber of the gun; 2) the cocking of the hammer, if uncocked; 3) the releasing of the safety pin; 4) the
pressing of the trigger to unleash the hammer so that the firing pin will hit the cartridge to propel the bullet out
to hit the target. Realistically, it demonstrates that a gun will not fire even if the bullet is loaded in its chamber if
the hammer is uncocked; or even if cocked if the safety pin is engaged; or even if the safety pin is disengaged if
the trigger will not be pressed. However, even if the gun is fired if it is not aimed and leveled to the target, the
purpose of firing it shall not be achieved. Contrarily, once a gun is drawn against a person, the means methods
and forms employed for its execution is already conceived. And once it is tended directly and specifically to
insure its execution, it consequently produces the conscious and deliberate intention. Finally if all the acts of
execution had been effectively done without risk on the part of the offender arising from any defense coming
from the offended party, treachery results. In brief, there is treachery when the offender commits any crime
against persons, employing means, methods and forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from any defense which the offended party might
make (People vs. Mesa 276 SCRA 407; People vs. Carlos Patrolla, Jr. G. R. No. 112445, March 7, 1996). To
appreciate treachery two (2) conditions must be present, to wit: 1) the employment of means of execution that
give the person attacked no opportunity to defend himself or retaliate; and 2) the means of execution were
deliberately or consciously adopted. (People vs. Azugue, 268 SCRA 711; People vs. Peña, G. R. No. 116022, July 1,
1998, p. 1)

In the case at bar and guided with the above-quoted doctrinal cases, logically, the accused is positive of the
crime charged against him. When he alighted with a drawn gun to protect his son and released all the safety
measures of his gun as he fired and missed at Noel who was then unarmed, but instead hit Kevin Valdez, John
Kenneth Andres and Feliber Andres which resulted to the death of the latter, demonstrate that the accused has
executed the two (2) conditions to generate treachery enough to qualify the crime committed to murder."

XXXX      XXXXX      XXXX

"WHEREFORE, foregoing premises considered, the accused Inocencio Gonzalez, Jr., y Esquivel is hereby found
guilty beyond reasonable doubt of the complex crime of Murder with Double Frustrated Murder and Attempted
Murder penalized under Art. 248, as amended by Republic Act No. 7659 in relation to Article 48 of the Revised
Penal Code and is sentenced to suffer the maximum penalty of Death by lethal injection.

The accused is further ordered to pay the following civil liabilities:

1. To the private complainant Noel Andres:

a) the amount of P50,000.00 as indemnity for the death of Feliber Andres;

b) the amount of P3,363,663.60 as indemnity for the loss of earning capacity of the deceased Feliber
Andres;

c) the amount of P98,384.19 as funeral expenses;

d) the amount of P271,800.56 for the hospitalization expenses incurred for the injuries sustained by the
deceased Feliber Andres and the amount of P23,622.58 representing the expenses for the untimely
delivery of the child Ma. Clarisse Andres;

e) the amount of P51,566.00 representing the hospitalization expenses for the injuries sustained by the
victim John Kenneth Andres;

f) the amount of P150,000.00 as moral damages suffered for the untimely death of his wife Feliber
Andres and for the injuries caused to his son John Kenneth Andres;

g) the amount of P50,000.00 as and by way of attorney’s fees and a fee of P2,000.00 per appearance;
and

h) the costs of the suit.

2. To the private complainant Nicasio Valdez:

a) the amount of P73,824.75 as actual damages for the injuries sustained by the victim Kevin Valdez; and
 b) the amount of P75,000.00 as and by way of moral damages.

SO ORDERED."

In his appeal, Gonzalez submits the following assignments of error:

"1. The trial court committed reversible error when it found that treachery was present.

2. The trial court committed reversible error when it presumed that there was treachery by taking judicial notice
of the feature of the automatic pistol involved in this case.

3. The trial court committed reversible error when it violated the constitutional right of the accused-appellant to
due process when it took judicial notice of the feature of the automatic pistol involved in this case without
notice.

4. The trial court committed reversible error when it found Accused-Appellant guilty beyond reasonable doubt
of the complex crime of Murder with Double Frustrated Murder.

5. The trial court committed reversible error when it failed to appreciate the mitigating circumstances of passion
or obfuscation, lack of intention to commit so grave a wrong, provocation or threat on the part of the offended
party immediately preceded the act, incomplete defense of relative, and voluntary surrender.

6. The trial court committed reversible error when it failed to find that the shooting incident was accidental.

7. The trial court committed reversible error when it gave credence to the testimonies of prosecution witnesses
Elmer Ramos and Moises Castro.

8. The trial court committed reversible error when it disregarded the basic principle that the accused is
presumed innocent and his guilt must be proven beyond reasonable doubt.

9. The trial court committed reversible error when it ordered Accused-Appellant to pay for the civil liabilities."

The appellant seeks a reversal and prays that judgment be rendered exempting him from criminal and civil liabilities.
Appellant declared that he had no intention to shoot Noel Andres much less his wife nor the children. He lost his balance
when his daughter Trisha approached and pushed him backwards to stop him from joining Dino and Noel Andres but the
appellant tried to free his right hand holding the gun and it accidentally fired. The single bullet fired hit the last window
on the left side of the Tamaraw FX. The appellant claims that he did not see the passengers inside the vehicle at the time
of the shooting. This is corroborated by the testimony of two witnesses for the prosecution who testified that the
windows of Andres’ vehicle are heavily tinted so that a person outside the vehicle would not be able to see if there are
people inside. It is also argued that had the appellant intended to shoot Noel Andres he could have simply done so by
shooting at him directly. The defense asserts that the evidence for the prosecution failed to establish the attendance of
treachery and without the attendance of the said qualifying circumstance the crime committed is homicide, not murder.

The appellant also points out that the trial court made the factual finding that the shooting happened in a matter of
seconds and that it was preceded by a heated argument between the parties. Such being the case, it is argued that the
shooting could not have been attended by treachery. There was no time for the appellant to consciously and
deliberately employ the mode of attack against Noel Andres, nor against any one of the actual victims, to insure its
execution and at the same time to eliminate any form of retaliation from the alleged intended victim. And yet, the trial
court, contrary to the evidence on record, held that the loading of the bullet into the chamber of the gun, the cocking of
the hammer, the release of the safety pin and the pulling of the trigger by the appellant of his automatic pistol
constitute conscious and deliberate effort to employ the gun as a means of committing the crime and resultantly,
qualified its commission by treachery. Such a finding presupposes that the appellant loaded the gun to shoot Noel
Andres only that very moment when his son Dino and Noel Andres were arguing. This conclusion has no basis on record.
The appellant testified that his gun was loaded before he left the house and two witnesses for prosecution stated in
court that a few seconds after Noel Andres and Dino started shouting at each other, the appellant got out of his car and
shot at the last window on the left side of the complainant’s vehicle. Further, the appellant assigns as error the
procedure adopted by the trial court in taking judicial notice that the gun used by the appellant is an automatic pistol
and as such, it will not fire unless aimed at the intended target. The procedure taken by the trial court is contrary to
Section 3, Rule 129 of the Rules of Court. 7 The trial court should have given both parties the opportunity to present
evidence, expert evidence, if necessary, to inform the court on the subject matter. The appellant argues that the factual
finding borne by such erroneous procedure is equally erroneous. The gun used by the appellant is a semi-automatic and
not an automatic pistol which means that the pistol used has no external safety pin to be released and that the hammer
need not be cocked. The pulling of the trigger, intentional or not, will fire the gun. The use of a semi-automatic pistol
does not necessarily imply treachery.

Appellant also argues that the testimonies of prosecution witnesses Castro and Ramos were improperly given credence
by the trial court. The appellant contends that a reading of their testimonies would show that their narration of the
incident is rather absurd and would show that they did not witness the actual shooting. Defense witnesses, Gonzalez
and his daughter, Trisha, on the other hand, testified that Castro and Ramos arrived at the scene only after the shooting.

As regards the injuries sustained by Kevin and Kenneth, it is argued that considering that there was no intent to kill and
that they stayed in the hospital only for six days, the crime committed is physical injuries. It is argued that the trial court
erred in awarding damages. The bunch of receipts allegedly representing the medical expenses incurred for the injuries
sustained by the victims was erroneously admitted in evidence, without first requiring the prosecution to establish the
authenticity of the receipts. The appellant also points out that the award for loss of earning capacity has no basis as the
deceased was unemployed at the time of the incident.

Finally, the appellant assigns as error the trial court’s rejection of the mitigating circumstances pleaded by the defense
which allegedly attended the commission of the crime, i.e., lack of intent to commit so grave a wrong, passion and
obfuscation, incomplete defense of a relative and voluntary surrender. The appellant asserts that these mitigating
circumstances were duly proven during the trial and are supported by the evidence on record. The private complainant
Noel Andres testified that he saw the appellant getting red in anger after they, Andres and the appellant, had a heated
argument immediately prior to the shooting. These admitted circumstances show that the appellant was not in his
proper state of mind at the time of the shooting. First, he was angered by Andres’ abusive language and later he got out
of his car with a loaded gun to protect his son from a perceived danger. The appellant clams that his willingness to help
the injured and his voluntary surrender to the police should likewise be considered as mitigating circumstances in the
imposition of penalties.

The Solicitor-General agrees with the appellant that the crime was not attended by the qualifying circumstance of
treachery and hence the crime committed by the appellant for the death of Feliber Andres is homicide, not murder. The
appellee takes into consideration that the shooting was preceded by a heated argument and that the supposed victim
was placed on guard that attack was imminent. It also appears that the shooting was done impulsively. There is no
evidence that the appellant deliberately employed the means of attack to insure execution of the crime and at the same
time eliminate the risk of retaliation from the private complainant. The appellee also agrees with the appellant that the
trial court erred in equating the use of an automatic pistol with treachery. The trial court made the factual finding that
the appellant’s automatic pistol would not fire unless aimed and the trigger is deliberately pulled and hence treachery
attended the shooting. The appellee submits that if we follow the reasoning of the trial court it would appear that the
appellant intended to shoot at the complainant’s vehicle only as the shot was fired at the last window on the left side of
the FX away from where Andres was allegedly seated. The fact that the gun was drawn and fired does not mean that the
mode of attack was consciously and deliberately employed.

However, with respect to the injuries sustained by Kevin and Kenneth, the appellee disagrees with the contention that
the appellant is liable only for slight physical injuries. The injuries sustained by both children are head injuries and could
have caused their death if not for the immediate medical attention given them. The number of days spent in the hospital
is not determinative of the severity of the wounds. Their nature and location should instead be considered. The
appellant cannot escape liability for frustrated homicide for the injuries of the two children on the ground that he fired a
single shot at the vehicle of Noel Andres. He is liable for all the consequences of his unlawful act even if the crime
committed is different from that intended.

As regards the pleaded mitigating circumstances, appellee asserts that none can be considered in favor of the appellant.
There is evidence on record that the appellant did not voluntarily surrender to the police and it appears from the
testimonies of witnesses that he entertained the possibility of flight but his car was stuck in traffic along the exit of the
memorial park. His pretense of incomplete defense of a relative is belied by his own admission that when he saw that
Noel Andres did not have a gun he lowered his hand holding the gun. There was allegedly no threat on the life of his son
at the time of the shooting, no uncontrollable fear nor irresistible force that would mitigate the commission of the
offense.

The Solicitor-General also seeks to uphold the pecuniary awards granted by the trial court. The appellee alleges that it is
not denied by the appellant that Feliber Andres was a 38 year old registered nurse at the time of the shooting. Although
she was then unemployed on account of her pregnancy, she still had earning capacity and the trial court properly
applied the salary of a government nurse under the salary standardization scheme in the computation of damages for
the loss of earning capacity. The receipts presented in evidence by the prosecution to establish hospitalization and other
medical expenses incurred by the private complainants by reason of the injuries suffered by the victims were duly
authenticated by the prosecution witnesses and there is no dispute that they are exact copies of the original receipts
presented in court. The objections raised by the appellant in this regard were duly met by the evidence presented by the
private complainants.

In sum, the appellee asserts that considering that the appellant fired a single shot and in the process committed four
offenses the appellant should be held liable for the complex crime of homicide for the death of Feliber Andres, double
frustrated homicide against Kevin and Kenneth and attempted homicide against Noel Andres. Under the rules on
complex crimes the penalty for the gravest offense, i.e., reclusion temporal for homicide, should be imposed in its
maximum period.

The appeal has merit.

Treachery under par.16 of Article 14 of the Revised Penal Code is defined as the deliberate employment of means,
methods or forms in the execution of a crime against persons which tend directly and specially to insure its execution,
without risk to the offender arising from the defense which the intended victim might raise. For treachery to be
appreciated two elements must concur: 1) the employment of means of execution that would insure the safety of the
accused from retaliatory acts of the intended victim and leaving the latter without an opportunity to defend himself and
2) the means employed were deliberately or consciously adopted by the offender. 8 The suddenness of the attack, the
infliction of the wound from behind the victim, the vulnerable position of the victim at the time the attack was made or
the fact that the victim was unarmed do not by themselves render the attack as treacherous. 9 This is of particular
significance in a case of an instantaneous attack made by the accused whereby he gained an advantageous position over
the victim when the latter accidentally fell and was rendered defenseless. 10 The means employed for the commission of
the crime or the mode of attack must be shown to have been consciously or deliberately adopted by the accused to
insure the consummation of the crime and at the same time eliminate or reduce the risk of retaliation from the intended
victim.11 Accordingly, it has been consistently held by this court that chance encounters, impulse killing or crimes
committed at the spur of the moment or that were preceded by heated altercations are generally not attended by
treachery for lack of opportunity of the accused to deliberately employ a treacherous mode of attack. 12 Thus, the sudden
attack made by the accused due to his infuriation by reason of the victim’s provocation was held to be without
treachery. Sudden attacks made by the accused preceded by curses and insults by the victim or acts taunting the
accused to retaliate or the rebellious or aggressive behavior of the victim were held to be without treachery as the
victim was sufficiently forewarned of reprisal. 13 For the rules on treachery to apply the sudden attack must have been
preconceived by the accused, unexpected by the victim and without provocation on the part of the latter. 14

This Court has also had occasion to state that whether or not the attack succeeds against its intended victim or injures
another or whether the crime committed is graver than that intended is immaterial, as long as it is shown that the attack
is attended by treachery, the said qualifying circumstance may still be considered by the court. 15 Thus, the determining
factor on whether or not the commission of a crime is attended by treachery is not the resulting crime committed but
the mode of attack employed in its execution. 16

Treachery is never presumed. It is required that the manner of attack must be shown to have been attended by
treachery as conclusively as the crime itself. 17

We affirm the recommendation of the Solicitor-General that the shooting was not attended by treachery and
accordingly the crime committed for the death of Feliber Andres is homicide and not murder.

The encounter between Noel Andres and the appellant was a chance encounter. They were total strangers before their
vehicles almost collided at an intersection inside the memorial park. Unfortunately, heated exchange of remarks that
followed the near collision was fanned by a short temper, which in the case of the appellant, was augmented by the
improvident use of a firearm.

From a reading of the transcript of the testimonies of the witnesses, it would appear that Noel Andres, who had his
pregnant wife and child with him, among others, on board the Tamaraw FX provoked the altercation. After the near
collision of his vehicle with that of the appellant, he tailed behind the latter’s car towards the exit until he had the
chance to cut him off to scold him for his failure to observe traffic rules. 18 Andres stated in court that he calmly told the
appellant to be careful with his driving and denied that he was angry when he alighted from his vehicle to confront the
appellant.19 His statement is belied by the witnesses, two prosecution witnesses included, who uniformly testified that
Andres quarreled with or shouted and cursed at the appellant for the latter’s recklessness at the intersection. 20 The
appellant narrated in court that Andres repeatedly shouted at him, "Putang ina mo, ang tanda-tanda mo na gago ka
pa".21 Andres’ hostile behavior towards the appellant is evident from his statement in court that he noticed the
appellant turning red in anger.22 It is highly improbable for Gonzalez to have turned red in anger had Andres been polite,
as he claims he was, in scolding Gonzalez. Andres could have simply communicated to the appellant his disgust for the
latter’s bad driving when he overtook the appellant’s car near the scene of the shooting but instead he chose to block
the appellant’s path, insult and virtually provoke the appellant to retaliate.
Andres stated in court that when he noticed Gonzalez’ infuriation he immediately walked towards his vehicle, because
according to him the altercation was over. On his way to his FX he met another man, whom he later found out to be the
appellant’s son, Dino. It appears that the altercation was far from over because again Andres had a shouting match this
time with Dino.23 In a matter of seconds, the appellant alighted from his car and fired a single shot at the last window on
the left side of Andres’ vehicle at an angle away from Noel Andres. The single bullet fired hit Feliber Andres on the
forehead near the temporal region above the left eye and the two children with metallic fragments of the bullet on their
faces, one at the cheek and the other below his left eye.

The prosecution did not present evidence as to the exact seating arrangement of the victims inside the vehicle; suffice it
to say, that an examination of the pictures of the vehicle 24 one of which shows a mass of blood stains on the left side
(towards the driver’s seat) of the white seat cover below the head rest 25, would show that the deceased Feliber must
have been seated at the front passenger’s seat and the children at the middle row behind the driver’s seat. 26 Another
picture shows a bullet hole on the last window on the left side of the vehicle 27 and another shows that the front
windshield appears undamaged.28 A ballistics expert appeared in court for the prosecution and testified that the bullet
fired at the FX came from the appellant’s gun, which fact was admitted by the defense. The prosecution did not inquire
from the ballistics expert regarding the trajectory of the bullet or the approximate distance of the appellant from the FX
when he fired his gun to establish whether or not the appellant aimed for Noel or Feliber or simply fired indiscriminately
at the latter’s vehicle.29

At first blush it would seem that the shooting of Feliber Andres was attended by treachery as she was inside the FX
witnessing her husband’s altercation, first, with the appellant then with the appellant’s son, totally defenseless from the
shot that came suddenly from her left side. Public outrage over the death of Feliber was heightened by the fact that she
was then pregnant with her second child and her death left a new born baby girl and a two year old boy motherless.

However, a meticulous review of the evidence prevents a conclusive finding of treachery and any doubt must be
resolved, like the fact of the commission of an offense, in favor of the accused. The pictures indicate that Gonzalez fired
at the FX at an angle away from Noel Andres and that Gonzalez was not aiming at anybody in particular. It is not
disputed that the appellant’s car was directly behind the complainant’s FX and that Gonzalez who was then seated at
the driver’s seat alighted from his car, took a few steps then fired at the left side of the FX. Whether Noel Andres was
seated at the driver’s seat inside his vehicle when Gonzalez fired at the FX, as the prosecution asserts, or was standing
by the door of the driver’s seat outside his vehicle, as the defense submits, it is clear that the shot was fired away from
Noel Andres. The bullet hit Feliber near her temple above the left eye indicating that she was facing left towards her
husband when the shot was fired.30 The direct hit on Feliber’s head shows that the angle of the shot was indeed away
from Noel Andres. Even the eyewitness for the prosecution testified that had the appellant intended to kill Noel Andres
he could have shot directly at him, considering that Noel Andres was just a few steps away from him 31 and that Noel
Andres was visible from the outside because his window was partially open. 32 The pictures show that the bullet hole was
on the third window on the left side of the Tamaraw FX 33 belying any attempt to shoot Noel Andres. Two prosecution
witnesses Ramos and Castro unequivocally declared that "nothing or no one" prevented Gonzalez from shooting directly
at Noel Andres and that Gonzalez could have simply done so if he wanted to. But after alighting from his car, Gonzalez
took a few steps and shot at the left side window of the FX. 34

The fact that the appellant fired his gun from behind the victim does not by itself amount to treachery. There is no
evidence on record that the appellant deliberately positioned himself behind the victim to gain advantage over him
when he fired the shot. On the contrary, the evidence before us reveals that the position of the appellant’s car was not
of his own doing but it became so when Noel Andres overtook his car and cut off his path.

We note further, that the appellant did not act belligerently towards Noel Andres even after the latter cut off the
appellant’s path. Andres stated in court that the appellant did not alight from his car nor opened his window until he,
Andres, tapped on it.35 For his part Gonzalez categorically stated in court that he did not point his gun nor threatened
Andres during their short spat.36 Gonzalez, although he had his gun in his car, did not react to Andres’ cursing until the
latter was having an altercation with the appellant’s son, Dino. Gonzalez claimed that he perceived that his son was in
imminent danger.37 Whether he overreacted or he shot at Andres’ vehicle out of rage over Andres’ aggressive behavior,
one thing appears clear to us, that the shooting was not done in cold blood. It is undisputed that the windows of the FX
are heavily or darkly tinted so that a person outside would not see if anybody was inside. 38 The pictures of the FX39 on
record confirm the testimonies of both prosecution and defense witnesses that the other passengers of the FX were not
visible from the outside. Gonzalez admitted in court that Noel Andres mentioned that he has passengers with him while
he was shouting and cursing at Gonzalez but there is no indication that Gonzalez had any opportunity to see the
passengers when he fired the shot. The totality of the evidence on record fails to support a conclusion that Gonzalez
deliberately employed the mode of attack to gain undue advantage over the intended nor the actual victim. Without any
decisive evidence to the contrary, treachery cannot be considered; thus the crime committed is homicide. 40

The trial court’s finding that the loading of the gun, the cocking of the hammer and finally the pulling of the trigger
constitute a deliberate effort on the part of appellant to use the gun as a means of a treacherous attack is patently
erroneous. A single and continuous attack cannot be divided into stages to make it appear that treachery was
involved.41 The entire incident happened in a matter of minutes, as testified to by witnesses, and as noted by the trial
court.42 It was error to our mind for the trial court to divide the assault in stages to arrive at the conclusion that the
mode of attack was consciously employed by the appellant. Contrary to the finding of the trial court that the appellant
prepared the gun before getting out of his car, the appellant testified that he loaded his gun before he left the house and
that it was ready to fire when he alighted his car. There was no time for him to reflect on the mode of attack since he
just picked up his gun and alighted from his car and shot at the FX a few seconds after Dino and Noel Andres started
shouting at each other.43 We note further that the trial court pointed out that from the fact that the appellant prepared
his gun to shoot, this was an indication of the deliberate employment of the gun as a means to kill; i.e. that the use of an
automatic pistol shows that the shooting was attended by treachery.

We do not agree that the weapon used, by itself, is determinative of treachery, unless it is shown, and it is not herein
shown, that the appellant deliberately used the gun to insure the commission of the crime and to render the unarmed
victim defenseless. As discussed above, the encounter between the appellant and the Andresses was a chance
encounter and the appellant’s gun was in the glove compartment of his car even before he left his house. The shooting
was clearly a spur of the moment or impulsive decision made by the appellant preceded by a heated altercation at the
instance of the private complainant. Jurisprudence teaches us that under the circumstances, treachery is not obtaining.
In the case of People vs. Valles,44 the accused, a security guard, fired his Armalite and mortally wounded the victim when
the latter approached the accused four times insisting on entering the workplace wearing improper uniform, then
cursed and insulted and challenged the accused to a fight. We held that the shooting was not attended by treachery as
the shooting was preceded by a heated altercation at the instance of the victim. It is to be noted that the kind of weapon
used against an unarmed victim was not taken into consideration in determining the attendance of treachery; it is the
mode of attack employed by the accused under the particular circumstances of a case that determines its attendance in
the commission of a crime. We find that the prosecution has not discharged its burden to show that the shooting was
attended by treachery and we are convinced that the crime committed for the death of Feliber Andres is homicide.

As regards the injuries sustained by the two children we find that the crime committed are two counts of slight physical
injuries. The intent to kill determines whether the crime committed is physical injuries or homicide and such intent is
made manifest by the acts of the accused which are undoubtedly intended to kill the victim. 45 In a case wherein the
accused did not know that a person was hiding behind a table who was hit by a stray bullet causing superficial injuries
requiring treatment for three days, the crime committed is slight physical injuries. 46 In case of doubt as to the homicidal
intent of the accused, he should be convicted of the lesser offense of physical injuries. 47 We have earlier pointed out that
the intent to kill is absent in this case. It was also found that one small metallic fragment was extracted from Kenneth
below his left eye while another fragment was extracted from Kevin "immediately below the level of his skin before the
cheek bone".48 An examination of the testimonies of the attending physicians, showed that the wounds sustained by the
two children from the metallic fragments are not in themselves fatal but may cause death if left untreated. One of the
attending physician testified in court that the fragments themselves "will not cause complication, it is the entry of the
fragment" or the open wound that is susceptible to infection. 49 Two small fragments were no longer extracted from the
face of Kevin Valdez, as the doctor deemed it to be without danger of complication. 50 We note that the various sizes of
the metallic fragments were not established, at least to give an indication of the severity of the wounds sustained. Both
children were discharged after six days of treatment and there is no showing that they required subsequent treatment
or that they were immobilized for a greater number of days by reason of the injuries sustained. Considering the nature
and location of their injuries and the number of days required for their treatment, we find that the crime committed for
the injuries sustained by the children are two counts of slight physical injuries under Art. 266 of the Revised Penal Code
which imposes a penalty of arresto menor or imprisonment for 1 to 30 days for injuries sustained that has incapacitated
the victim for one to nine days or required medical attendance for the same period. For evident lack of criminal intent to
kill the complainant, Noel Andres, as above stated, the information for attempted homicide must fail.

The mitigating circumstances of voluntary surrender, passion and obfuscation, incomplete defense of a relative and lack
of intent to commit so grave a wrong, pleaded by the defense, were not convincingly proved and none can be
considered in the imposition of penalties. The testimony of prosecution witness contradicts the appellant’s pretense of
voluntary surrender. Witness Ramos testified that the appellant drove away towards the gate of the memorial park
while he was questioning him after the shooting and had not Noel Andres and onlookers blocked his path the appellant
could have fled the scene of the crime. 51

The mitigating circumstance of passion and obfuscation is also not obtaining. For this mitigating circumstance to be
considered, it must be shown that (1) an unlawful act sufficient to produce passion and obfuscation was committed by
the intended victim; (2) that the crime was committed within a reasonable length of time from the commission of the
unlawful act that produced the obfuscation in the accused’s mind; and that (3) "the passion and obfuscation arose from
lawful sentiments and not from a spirit of lawlessness or revenge". 52 Noel Andres’ act of shouting at the appellant’s son,
who was then a nurse and of legal age, is not sufficient to produce passion and obfuscation as it is claimed by the
accused. Besides, the appellant’s son, Dino was shouting back at Noel Andres. It was not a case wherein the appellant’s
son appeared helpless and oppressed that the appellant lost his reason and shot at the FX of Noel Andres. The same
holds true for the appellant’s claim of provocation on the part of Noel Andres. Provocation must be sufficient to excite a
person to commit the wrong committed and that the provocation must be commensurate to the crime committed. The
sufficiency of provocation varies according to the circumstances of the case. 53 The aggressive behavior of Noel Andres
towards the appellant and his son may be demeaning or humiliating but it is not sufficient provocation to shoot at the
complainant’s vehicle.

The plea for the appreciation of the mitigating circumstance of incomplete defense of a relative is also unmeritorious
since the act of Andres in cursing and shouting at the appellant and his son do not amount to an unlawful aggression
against them, Dino Gonzalez. Finally, the plea for the appreciation of the mitigating circumstance of lack of intent to
commit so grave a wrong is likewise devoid of merit. This mitigating circumstance is obtaining when there is a notable
disparity between the means employed by the accused to commit a wrong and the resulting crime committed. The
intention of the accused at the time of the commission of the crime is manifested from the weapon used, the mode of
attack employed and the injury sustained by the victim. 54 The appellant’s use of a gun, although not deliberately sought
nor employed in the shooting, should have reasonably placed the appellant on guard of the possible consequences of his
act. The use of a gun is sufficient to produce the resulting crimes committed.

For the death of Feliber Andres, and in the absence of any mitigating circumstance, the appellant is hereby sentenced to
an indeterminate sentence of 8 years and 1 day of prision mayor, in its medium period, as minimum to 14 years 8
months and 1 day of reclusion temporal in its medium period, as maximum. For each count of the slight physical injuries
committed against Kenneth Andres and Kevin Valdez, the appellant is hereby sentenced to 20 days of arresto menor in
its medium period.

The rules on the imposition of penalties for complex crimes under Art. 48 of the Revised Penal Code are not applicable in
this case. Art. 48 applies if a single act constitutes two or more grave and less grave felonies or when an offense is a
necessary means of committing another; in such a case, the penalty for the most serious offense shall be imposed in its
maximum period. Art. 9 of the Revised Penal Code in relation to Art. 25 defines grave felonies as those to which the law
attaches the capital punishment or afflictive penalties from reclusion perpetua to prision mayor; less grave felonies are
those to which the law attaches a penalty which in its maximum period falls under correctional penalties; and light
felonies are those punishable by arresto menor or fine not exceeding two hundred pesos. Considering that the offenses
committed by the act of the appellant of firing a single shot are one count of homicide, a grave felony, and two counts of
slight physical injuries, a light felony, the rules on the imposition of penalties for complex crimes, which requires two or
more grave and/or less grave felonies, will not apply.

The pecuniary award granted by the trial court for actual damages was duly established by the testimonies of the
prosecution witnesses as supported by the original receipts for hospitalization and other medical expenses presented in
evidence by the prosecution. The award for loss of earning capacity is likewise sustained for the reason that while
Feliber Andres was pregnant and was unemployed at the time of death, it is not disputed that she was a registered
nurse and had earning capacity. Noel Andres also testified that he and his wife had plans to go back to Saudi Arabia to
work after Feliber had given birth to their second baby. While there is no evidence as to Feliber’s actual income at the
time of her death, in view of her temporary separation from work because of her pregnancy, we do not consider it
reversible error for the trial court to peg her earning capacity to that of the salary of a government nurse under the
salary standardization law, as a fair estimate or reasonable assessment of her earning capacity at the time of her death.
It would be grossly inequitous to deny her spouse and her minor children damages for the support that they would have
received, considering clear evidence on record that she did have earning capacity at the time of her death.

The awards for moral damages for the death of Feliber Andres and for the injuries sustained by the two children, which
under the circumstances are reasonable, are likewise sustained.

WHEREFORE, the decision of the trial court is hereby MODIFIED. The appellant is hereby found guilty of homicide for the
death of Feliber Andres and is sentenced to an indeterminate sentence of 8 years and 1 day of prision mayor in its
medium period, as minimum, to 14 years 8 months and 1 day of reclusion temporal in its medium period, as maximum.
For each count of the slight physical injuries committed against Kenneth Andres and Kevin Valdez, the appellant is
hereby sentenced to 20 days of arresto menor.

The pecuniary awards granted by the trial court are hereby sustained.

SO ORDERED.
G.R. Nos. 121039-45            October 18, 2001

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MAYOR ANTONIO L. SANCHEZ, GEORGE MEDIALDEA, ZOILO AMA, BALDWIN BRION, LUIS CORCOLON, ROGELIO
CORCOLON, and PEPITO KAWIT, accused-appellants.

RESOLUTION

MELO, J.:

Before us is a motion for reconsideration of our January 25, 1999 decision, penned by Justice Antonio M. Martinez,
affirming in toto the judgment of conviction rendered by Branch 70 of the Pasig City Regional Trial Court finding accused-
appellants Mayor Antonio Sanchez, George Medialdea, Zoilo Ama, Baldwin Brion, Luis Corcolon, Rogelio Corcolon and
Pepito Kawit guilty beyond reasonable doubt of the crime of rape with homicide, and additionally, ordering each of
them to pay the amount of Seven Hundred Thousand Pesos (P700,000.00) to the heirs of the two victims as additional
indemnity. While accused-appellants Antonio Sanchez, Zoilo Ama, Baldwin Brion and Pepito Kawit seasonably filed their
respective motions for reconsideration, it was only on December 6, 1999 that the Office of the Solicitor General filed its
Comment thereto. And since Justice Martinez had retired earlier on February 2, 1999, in accordance with A.M. No. 99-8-
09 promulgated by the Court on February 15, 2000, the motions for reconsideration filed by accused-appellants was
assigned by raffle only on September 18, 2001 to herein ponente for study and preparation of the appropriate action.

In his motion for reconsideration, Mayor Antonio Sanchez avers that he is a victim of trial and conviction by publicity and
that the principal witnesses Aurelio Centeno and Vicencio Malabanan presented by the prosecution are lacking in
credibility. He likewise contends that the testimony of his 13-year old daughter vis-à-vis his whereabouts on the night of
the felony should have been given full faith and credit as against the testimony of Centeno and Malabanan. Lastly,
Mayor Sanchez seeks the reconsideration of the amount of the "gargantuan" damages awarded on the ground that the
same have no factual and legal bases.

In the same vein, accused-appellants Zoilo Ama, Baldwin Brion, and Pepito Kawit, in their motion for reconsideration,
maintain that prosecution witnesses Centeno and Malabanan have been sufficiently impeached by prior inconsistent
statements allegedly pertaining to material and crucial points of the events at issue. Not only that, they assert that
independent and disinterested witnesses have destroyed the prosecution’s version of events.

Preliminarily, it may be observed that, except for the issue of civil damages raised by Mayor Sanchez, accused-appellants
have not presented any issue new or different from that which they had previously raised before the trial court and this
Court. Moreover, the issues they have raised have been discussed at length and passed upon by both the court a
quo and by this Court. Thus, on the charge that accused-appellant Sanchez is a victim of trial and conviction by publicity,
in our January 25, 1999 decision, citing People vs. Teehankee, Jr. (249 SCRA 54), we declared:

We cannot sustain appellant’s claim that he was denied the right to impartial trial due to prejudicial publicity. It
is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and
high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to
a free press. To be sure, responsible reporting enhances an accused’s right to a fair trial for, as well pointed out,
"a responsible press has always been regarded as the handmaiden of effective judicial administration, especially
in the criminal field… The press does not simply publish information about trials but guards against the
miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny
and criticism."

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of
appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that publicity so permeated
the mind of the trial judge and impaired his impartiality… Our judges are learned in the law and trained to
disregard off-court evidence and on-camera performances of parties to a litigation. Their mere exposure to
publications and publicity stunts does not per se fatally infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of
publicity that characterized the investigation and trial of the case. In Martelino et al. vs. Alejandro et al., we
rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to
warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage of publicity. In the case at bar, the records do not show
that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of
the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge
 acquired a fixed position as a result of prejudicial publicity which is incapable of change even by evidence
presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the
burden.

This failure to present proof of actual bias continues to hound accused-appellant Sanchez, having failed, in his motion for
reconsideration, to substantiate his claims of actual bias on the part of the trial judge. Not only that, accused-appellant’s
case has been exhaustively and painstakingly reviewed by the Court itself. Accused-appellant Sanchez has not shown by
an iota of proof that the Court, in the examination of his appeal, was unduly swayed by publicity in affirming the
sentence of conviction imposed by the trial court. The charge of conviction by publicity leveled by accused-appellant has
thus no ground to stand on.

As to the claim that witnesses Centeno and Malabanan lack credibility and that they were sufficiently impeached by
prior inconsistent statements, the same is old hat, to say the least. It is hornbook doctrine in criminal jurisprudence that
when the issue is one of credibility of witnesses, appellate courts will not disturb the findings of the trial court and the
appellate courts will respect these findings considering that trial courts are in a better position to decide the question,
having heard the witnesses themselves and observed their deportment and manner of testifying during the trial (People
vs. Mendoza, 332 SCRA 485 [2000]). In the instant case, then Judge Harriet Demetriou found both Centeno and
Malabanan to have testified in a frank, spontaneous, and straightforward manner; and that despite gruelling cross-
examination by a battery of defense lawyers, their testimony never wavered on the substantial matters in issue.

As to the alleged inconsistencies in the testimony of Centeno and Malabanan, suffice it to say that the points raised have
all been carefully and assiduously examined, not only by the trial court but also by the Court itself, and that the
inconsistencies were found to refer to minor and collateral matters. It is well-settled that so long as the witnesses’
declarations agree on substantial matters, the inconsequential inconsistencies and contradictions dilute neither the
witnesses’ credibility nor the verity of their testimony (People vs. Agomo-o, 334 SCRA 279 [2000]). Accused-appellants
have not shown in their motions for reconsideration new evidence to warrant disregard for the above-rule, nor have
they shown that the Court has overlooked, misunderstood, or misapplied some fact of weight and circumstance that
would have materially affected the outcome of the case.

Accused-appellant Sanchez’s argument that the testimony of his 13-year old daughter, Ave Marie Sanchez, as to his
whereabouts on the night of the crime should be given full faith and credence is likewise unavailing. While it is true that
statements of children are accorded great probative value, it is likewise true that alibi is the weakest defense an accused
can concoct. Where nothing supports the alibi except the testimony of a relative, it deserves but scant consideration
(People vs. Waggay, 218 SCRA 742 [1993]). Moreover, accused-appellant Sanchez’s alibi cannot prevail over the positive
declarations of the prosecution that he was at Erais Farm that fateful night. The alibis of accused-appellants Zoilo Ama,
Baldwin Brion, and Pepito Kawit are even worse, not having been corroborated by any other evidence. The assertions of
these accused-appellants as to their innocence are thus entitled short shrift from this Court.

Accused-appellant Sanchez’s asseverations as to the amount of damages awarded is, however, meritorious. The trial
court awarded the Sarmenta family P50,000.00 as civil liability for the wrongful death of Eileen Sarmenta, P106,650.00
for the funeral expenses they incurred, and P3,276,000.00 for the loss of Eileen Sarmenta’s earning capacity; or a total of
P3,432,650.00 as actual damages. On the other hand, the Gomez family was awarded by the trial court a total of
P3,484,000.00 as actual damages, broken down as follows: P50,000.00 for the wrongful death of Allan Gomez,
P74,000.00 for the latter’s funeral, and P3,360,000.00 for the loss of the latter’s earning capacity.

Similarly, the trial court ordered accused-appellants to pay the sum of P2,000,000.00 to the Sarmenta family and
another P2,000,000.00 to the Gomez family as moral damages. Lastly, the trial court ordered accused-appellants to pay
the Sarmenta and Gomez families the sum of P164,250.00 and 191,000.00, respectively, for litigation expenses incurred.

The Court, in its decision dated January 25, 1999, affirmed in toto the decision of the lower court. However, we also
ordered each accused-appellant to pay the respective heirs of Eileen Sarmenta and Allan Gomez an additional indemnity
of P350,000.00 each, stating that since each accused-appellant had been found guilty of seven counts of rape with
homicide, jurisprudence dictated that for each count, each accused-appellant is liable for civil indemnity of P50,000.00,
or a total of P350,000.00.

Since the trial court’s award of actual damages to the Gomez and Sarmenta families already included civil indemnity in
the amount of P50,000.00, to order each accused-appellant to pay an additional P350,000.00 as civil indemnity would be
"double recovery" of damages on the part of the Gomez and Sarmenta families for the same act or omission. Thus, the
amount of P50,000.00 awarded by the trial court must each be deducted from the amount of actual damages due to the
Gomez and Sarmenta families.

As for funeral expenses, the Court had occasion to declare in People vs. Timon (281 SCRA 577 [1997]) that "burial
expenses, which are by nature actual expenses must be proved. Since no proof of burial expenses was ever presented in
the instant case, its award will not be allowed." It is a settled rule that there must be proof that actual or compensatory
damages have been suffered and evidence of its actual amount (People vs. Nablo, 319 SCRA 784 [1999]). While the
funeral expenses incurred by the Sarmenta family were supported by the appropriate receipts, the same is not true for
the funeral expenses incurred by the Gomez family. Not having been duly receipted, the amount of P74,000.00 awarded
to the Gomez family as funeral expenses must, perforce, be deleted. However, as the heirs of Allan Gomez clearly
incurred funeral expenses, P10,000.00 by way of nominal damages should be awarded. This award is adjudicated so that
a right which has been violated may be recognized or vindicated, and not for the purpose of indemnification (see People
vs. Candare, 333 SCRA 338 [2000]).

The award of P3,276,000.00 and P3,360,000.00, representing the alleged loss of earning capacity of Sarmenta and
Gomez, respectively, also merit review. Eileen Sarmenta, at the time of her death, was a graduating student of the
College of Agriculture of the University of the Philippines at Los Baños (UPLB), majoring in Food and Nutrition for Large
Animals. Allan Gomez was likewise a senior student of the College of Agriculture of UPLB, majoring in Beef Production.
The trial court, using the American Expectancy Table of Mortality, pegged the life expectancy of Sarmenta, 21 years old
at the time of her death, and Gomez, 19 years old at the time of his death, at 39.1 and 40.6 years, respectively. Believing
that the victims would have earned a monthly salary of P15,000.00 and incurred living expenses of P8,000.00 per month,
the trial court awarded P3,276,000.00 and P3,360,000.00 as the amount recoverable by the Sarmenta and Gomez
families, respectively, for the loss of the earning capacity of Eileen and Allan.

While accused-appellant Sanchez contends that the awards of P3,276,000.00 and P3,360,000.00 are baseless in fact and
law, no evidence having been adduced to prove that the victims had any actual income at the time of their demise, it is
well-settled that to be compensated for loss of earning capacity, it is not necessary that the victim, at the time of injury
or death, be gainfully employed. Compensation of this nature is awarded not for loss of earnings but for loss of capacity
to earn money (People vs. Teehankee, supra). Likewise, the fact that the prosecution did not present documentary
evidence to support its claim for damages for loss of earning capacity of the deceased does not preclude recovery of the
same (People vs. Quilang, 312 SCRA 314 [1999]; People vs. Verde, 302 SCRA 690 [1999]). On the part of Eileen Sarmenta,
her mother testified that Eileen had an offer for employment from Monterey Farms. On the other hand, Allan Gomez’s
mother testified that her deceased son planned to work on a private farm after graduation.

Moreover, in Cariaga et al. vs. LTB and Manila Railroad Co. (110 Phil. 346 [1960]), the Court awarded compensatory
damages for the loss of earning capacity to Edgardo Cariaga, a 4th year medical student at UST, stating that while his
scholastic record may not have been first rate, it was, nevertheless, sufficient to justify the assumption that he could
have finished the course, would have passed the board in due time, and that he could have possibly earned as a medical
practitioner the minimum monthly income of P300.00.

Both Sarmenta and Gomez were senior agriculture students at UPLB, the country’s leading educational institution in
agriculture. As reasonably assumed by the trial court, both victims would have graduated in due course. Undeniably,
their untimely death deprived them of their future time and earning capacity. For these deprivation, their heirs are
entitled to compensation. Difficulty, however, arises in measuring the value of Sarmenta’s and Gomez’s lost time and
capacity to earn money in the future, both having been unemployed at the time of death. While the law is clear that the
deceased has a right to his own time — which right cannot be taken from him by a tortfeasor without compensation —
the law is also clear that damages cannot be awarded on the speculation, passion, or guess of the judge or the
witnesses. In this case, Eileen Sarmenta’s mother testified that for a new graduate of UPLB, the basic salary was more or
less P15,000.00 per month. Allan Gomez’s mother, on the other hand, testified that her son could have easily gotten
P10,000.00 to P15,000.00 per month. Clearly, the testimony of said witnesses are speculative, insufficient to prove that
in 1993, Sarmenta and Gomez would have indeed earned P15,000.00 a month had they managed to graduate. However,
considering that Sarmenta and Gomez would have graduated in due time from a reputable university, it would not be
unreasonable to assume that in 1993 they would have earned more than the minimum wage. All factors considered, the
Court believes that it is fair and reasonable to fix the monthly income that the two would have earned in 1993 at
P8,000.00 per month (or P96,000.00/year) and their deductible living and other incidental expenses at P3,000.00 per
month (or P36,000.00/year). Hence, in accordance with the formula adopted by the Court in Villa Rey Transit, Inc. vs.
CA (31 SCRA 511 [1970]), and using the American Expectancy Table of Mortality, the loss of Sarmenta and Gomez’s
earning capacity is to be computed as follows:

Net earning capacity = Life expectancy x (Gross Annual Income

– Living Expenses)
where: Life expectancy = 2/3 (80 – the
age of the deceased)
Heirs of Eileen Sarmenta:
= 2/3 (80-21) x (96,000 – 36,000)
= 39.353 x 60,000
= P2,361,180.00
 Heirs of Allan Gomez:
= 2/3 (80-19) x (96,000 – 36,000)
= 40.687 x 60,000
= P2,441,220.00

As to the award of P2,000,000.00 each as moral damages to the Sarmenta and Gomez families, these must also be
reduced, the same being excessive. While the assessment of moral damages is left to the discretion of the court
according to the circumstances of each case (Article 2216, Civil Code), the purpose of moral damages is essentially
indemnity or reparation, not punishment or correction. Moral damages are emphatically not intended to enrich a
complainant at the expense of a defendant; they are awarded only to enable the injured party to obtain means,
diversions or amusements that will serve to alleviate the moral suffering he has undergone by reason of the defendant’s
culpable action. In other words, the award of moral damages is aimed at a restoration, within the limits of the possible,
of the spiritual status quo ante; and therefore, it must be proportionate to the suffering inflicted (Dela Serna vs. CA, 233
SCRA 325 [1994]). The intensity of the pain experienced by the relatives of the victim is proportionate to the intensity of
affection for him and bears no relation whatever with the wealth or the means of the offender. The death caused by a
beggar is felt by the parents of the victim as intensely as that caused by the action of a wealthy family. The Court, in the
exercise of its discretion, thus reduces the amount of moral damages awarded to the heirs of Eileen Gomez and Allan
Sarmenta to P1,000,000.00 each. As to the award of attorney’s fees and litigation expenses, the same is reasonable and
justified, this case having dragged on for over eight years.

WHEREFORE, premises considered, we AFFIRM the conviction of accused-appellants for seven counts of rape with
homicide and the sentence of reclusion perpetua imposed upon them for each of said counts, with MODIFICATION that
the accused be ordered to pay the heirs of the victims as follows:

To the heirs of Eileen Sarmenta:

1. Death indemnity P 350,000.00
2. Moral damages 1,000,000.00
3. Funeral expenses 106,650.00
4. Loss of earning capacity 2,361,180.00
5. Attorney’s fees & litigation     164,250.00
expenses
            Total P 3,982,080.00
To the heirs of Allan Gomez:
1. Death indemnity P 350,000.00
2. Moral damages 1,000,000.00
3. Nominal damages 10,000.00
4. Loss of earning capacity 2,441,220.00
5. Attorney’s fees & litigation     191,000.00
expenses
            Total P 3,992,220.00

SO ORDERED.