Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No.

162540 July 13, 2009

to make check payments to Mega Foam payable to CASH. Around that time, Ricablanca also received a phone call from an employee of Land Bank, Valenzuela Branch, who was looking for Generoso Capitle. The reason for the call was to inform Capitle that the subject BDO check deposited in his account had been dishonored. Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega Foam, asking the latter to inform Jacqueline Capitle about the phone call from Land Bank regarding the bounced check. Ricablanca explained that she had to call and relay the message through Valencia, because the Capitles did not have a phone; but they could be reached through Valencia, a neighbor and former co-employee of Jacqueline Capitle at Mega Foam. Valencia then told Ricablanca that the check came from Baby Aquino, and instructed Ricablanca to ask Baby Aquino to replace the check with cash. Valencia also told Ricablanca of a plan to take the cash and divide it equally into four: for herself, Ricablanca, petitioner Jacinto and Jacqueline Capitle. Ricablanca, upon the advise of Mega Foam's accountant, reported the matter to the owner of Mega Foam, Joseph Dyhengco. Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter indeed handed petitioner a BDO check for P10,000.00 sometime in June 1997 as payment for her purchases from Mega Foam.4 Baby Aquino further testified that, sometime in July 1997, petitioner also called her on the phone to tell her that the BDO check bounced.5 Verification from company records showed that petitioner never remitted the subject check to Mega Foam. However, Baby Aquino said that she had already paid Mega Foam P10,000.00 cash in August 1997 as replacement for the dishonored check.6 Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO check in his bank account, but explained that the check came into his possession when some unknown woman arrived at his house around the first week of July 1997 to have the check rediscounted. He parted with his cash in exchange for the check without even bothering to inquire into the identity of the woman or her address. When he was informed by the bank that the check bounced, he merely disregarded it as he didnt know where to find the woman who rediscounted the check. Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation (NBI) and worked out an entrapment operation with its agents. Ten pieces of P1,000.00 bills provided by Dyhengco were marked and dusted with fluorescent powder by the NBI. Thereafter, the bills were given to Ricablanca, who was tasked to pretend that she was going along with Valencia's plan. On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who was then holding the bounced BDO check, handed over said check to Ricablanca. They originally intended to proceed to Baby Aquino's place to have the check replaced with cash, but the plan did not push through. However, they agreed to meet again on August 21, 2007. On the agreed date, Ricablanca again went to petitioners house, where she met petitioner and Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to the house of Anita Valencia; Jacqueline Capitle decided not to go with the group because she decided to go shopping. It was only petitioner, her husband, Ricablanca and Valencia who then boarded petitioner's jeep and went on to Baby Aquino's factory. Only Ricablanca alighted from the jeep and entered the premises of Baby Aquino, pretending that she was getting cash from Baby Aquino. However, the cash she actually brought out from the premises was the P10,000.00 marked money previously given to her

GEMMA T. JACINTO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION PERALTA, J.: Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto seeking the reversal of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 23761 dated December 16, 2003, affirming petitioner's conviction of the crime of Qualified Theft, and its Resolution2 dated March 5, 2004 denying petitioner's motion for reconsideration. Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera and Jacqueline Capitle, was charged before the Regional Trial Court (RTC) of Caloocan City, Branch 131, with the crime of Qualified Theft, allegedly committed as follows: That on or about and sometime in the month of July 1997, in Kalookan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping one another, being then all employees of MEGA FOAM INTERNATIONAL INC., herein represented by JOSEPH DYHENGCO Y CO, and as such had free access inside the aforesaid establishment, with grave abuse of trust and confidence reposed upon them with intent to gain and without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal and deposited in their own account, Banco De Oro Check No. 0132649 dated July 14, 1997 in the sum of P10,000.00, representing payment made by customer Baby Aquino to the Mega Foam Int'l. Inc. to the damage and prejudice of the latter in the aforesaid stated amount of P10,000.00. CONTRARY TO LAW.3 The prosecution's evidence, which both the RTC and the CA found to be more credible, reveals the events that transpired to be as follows. In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed petitioner Banco De Oro (BDO) Check Number 0132649 postdated July 14, 1997 in the amount of P10,000.00. The check was payment for Baby Aquino's purchases from Mega Foam Int'l., Inc., and petitioner was then the collector of Mega Foam. Somehow, the check was deposited in the Land Bank account of Generoso Capitle, the husband of Jacqueline Capitle; the latter is the sister of petitioner and the former pricing, merchandising and inventory clerk of Mega Foam. Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call sometime in the middle of July from one of their customers, Jennifer Sanalila. The customer wanted to know if she could issue checks payable to the account of Mega Foam, instead of issuing the checks payable to CASH. Said customer had apparently been instructed by Jacqueline Capitle

by Dyhengco. Ricablanca divided the money and upon returning to the jeep, gave P5,000.00 each to Valencia and petitioner. Thereafter, petitioner and Valencia were arrested by NBI agents, who had been watching the whole time. Petitioner and Valencia were brought to the NBI office where the Forensic Chemist found fluorescent powder on the palmar and dorsal aspects of both of their hands. This showed that petitioner and Valencia handled the marked money. The NBI filed a criminal case for qualified theft against the two and one Jane Doe who was later identified as Jacqueline Capitle, the wife of Generoso Capitle. The defense, on the other hand, denied having taken the subject check and presented the following scenario. Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30, 1997, but claimed that she had stopped collecting payments from Baby Aquino for quite some time before her resignation from the company. She further testified that, on the day of the arrest, Ricablanca came to her mothers house, where she was staying at that time, and asked that she accompany her (Ricablanca) to Baby Aquino's house. Since petitioner was going for a pre-natal check-up at the Chinese General Hospital, Ricablanca decided to hitch a ride with the former and her husband in their jeep going to Baby Aquino's place in Caloocan City. She allegedly had no idea why Ricablanca asked them to wait in their jeep, which they parked outside the house of Baby Aquino, and was very surprised when Ricablanca placed the money on her lap and the NBI agents arrested them. Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned on June 30, 1997. It was never part of her job to collect payments from customers. According to her, on the morning of August 21, 1997, Ricablanca called her up on the phone, asking if she (Valencia) could accompany her (Ricablanca) to the house of Baby Aquino. Valencia claims that she agreed to do so, despite her admission during cross-examination that she did not know where Baby Aquino resided, as she had never been to said house. They then met at the house of petitioner's mother, rode the jeep of petitioner and her husband, and proceeded to Baby Aquino's place. When they arrived at said place, Ricablanca alighted, but requested them to wait for her in the jeep. After ten minutes, Ricablanca came out and, to her surprise, Ricablanca gave her money and so she even asked, "What is this?" Then, the NBI agents arrested them. The trial of the three accused went its usual course and, on October 4, 1999, the RTC rendered its Decision, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale De Jacinto y Latosa, Anita Busog De Valencia y Rivera and Jacqueline Capitle GUILTY beyond reasonable doubt of the crime of QUALIFIED THEFT and each of them is hereby sentenced to suffer imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND ELEVEN (11) DAYS, as minimum, to SIX (6) YEARS, EIGHT (8) MONTHS AND TWENTY (20) DAYS, as maximum. SO ORDERED.7 The three appealed to the CA and, on December 16, 2003, a Decision was promulgated, the dispositive portion of which reads, thus:

IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that: (a) the sentence against accused Gemma Jacinto stands; (b) the sentence against accused Anita Valencia is reduced to 4 months arresto mayor medium. (c) The accused Jacqueline Capitle is acquitted. SO ORDERED. A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for petitioner Gemma Tubale Jacinto, but the same was denied per Resolution dated March 5, 2004. Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing the Decision and Resolution of the CA. The issues raised in the petition are as follows: 1. Whether or not petitioner can be convicted of a crime not charged in the information; 2. Whether or not a worthless check can be the object of theft; and 3. Whether or not the prosecution has proved petitioner's guilt beyond reasonable doubt.8 The petition deserves considerable thought. The prosecution tried to establish the following pieces of evidence to constitute the elements of the crime of qualified theft defined under Article 308, in relation to Article 310, both of the Revised Penal Code: (1) the taking of personal property - as shown by the fact that petitioner, as collector for Mega Foam, did not remit the customer's check payment to her employer and, instead, appropriated it for herself; (2) said property belonged to another the check belonged to Baby Aquino, as it was her payment for purchases she made; (3) the taking was done with intent to gain this is presumed from the act of unlawful taking and further shown by the fact that the check was deposited to the bank account of petitioner's brother-in-law; (4) it was done without the owners consent petitioner hid the fact that she had received the check payment from her employer's customer by not remitting the check to the company; (5) it was accomplished without the use of violence or intimidation against persons, nor of force upon things the check was voluntarily handed to petitioner by the customer, as she was known to be a collector for the company; and (6) it was done with grave abuse of confidence petitioner is admittedly entrusted with the collection of payments from customers. However, as may be gleaned from the aforementioned Articles of the Revised Penal Code, the personal property subject of the theft must have some value, as the intention of the accused is to gain from the thing stolen. This is further bolstered by Article 309, where the law provides that the penalty to be imposed on the accused is dependent on the value of the thing stolen. In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same was apparently without value, as it was subsequently dishonored. Thus, the question arises on whether the crime of qualified theft was actually produced. The Court must resolve the issue in the negative. Intod v. Court of Appeals9 is highly instructive and applicable to the present case. In Intod, the accused, intending to kill a person, peppered the latters bedroom with bullets, but since the intended victim was not home at the time, no harm came to him. The trial court and the CA held Intod guilty of attempted murder. But upon review by this Court, he was adjudged guilty only of an

impossible crime as defined and penalized in paragraph 2, Article 4, in relation to Article 59, both of the Revised Penal Code, because of the factual impossibility of producing the crime. Pertinent portions of said provisions read as follows: Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred: xxxx 2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate to ineffectual means. (emphasis supplied) Article 59. Penalty to be imposed in case of failure to commit the crime because the means employed or the aims sought are impossible. - When the person intending to commit an offense has already performed the acts for the execution of the same but nevertheless the crime was not produced by reason of the fact that the act intended was by its nature one of impossible accomplishment or because the means employed by such person are essentially inadequate to produce the result desired by him, the court, having in mind the social danger and the degree of criminality shown by the offender, shall impose upon him the penalty of arresto mayor or a fine ranging from 200 to 500 pesos. Thus, the requisites of an impossible crime are: (1) that the act performed would be an offense against persons or property; (2) that the act was done with evil intent; and (3) that its accomplishment was inherently impossible, or the means employed was either inadequate or ineffectual. The aspect of the inherent impossibility of accomplishing the intended crime under Article 4(2) of the Revised Penal Code was further explained by the Court in Intod10 in this wise: Under this article, the act performed by the offender cannot produce an offense against persons or property because: (1) the commission of the offense is inherently impossible of accomplishment; or (2) the means employed is either (a) inadequate or (b) ineffectual. That the offense cannot be produced because the commission of the offense is inherently impossible of accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the offender must be by its nature one impossible of accomplishment. There must be either (1) legal impossibility, or (2) physical impossibility of accomplishing the intended act in order to qualify the act as an impossible crime. Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime. xxxx The impossibility of killing a person already dead falls in this category. On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his control prevent the consummation of the intended crime. x x x 11

In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e., a man puts his hand in the coat pocket of another with the intention to steal the latter's wallet, but gets nothing since the pocket is empty. Herein petitioner's case is closely akin to the above example of factual impossibility given in Intod. In this case, petitioner performed all the acts to consummate the crime of qualified theft, which is a crime against property. Petitioner's evil intent cannot be denied, as the mere act of unlawfully taking the check meant for Mega Foam showed her intent to gain or be unjustly enriched. Were it not for the fact that the check bounced, she would have received the face value thereof, which was not rightfully hers. Therefore, it was only due to the extraneous circumstance of the check being unfunded, a fact unknown to petitioner at the time, that prevented the crime from being produced. The thing unlawfully taken by petitioner turned out to be absolutely worthless, because the check was eventually dishonored, and Mega Foam had received the cash to replace the value of said dishonored check.1avvphi1 The fact that petitioner was later entrapped receiving the P5,000.00 marked money, which she thought was the cash replacement for the dishonored check, is of no moment. The Court held in Valenzuela v. People12 that under the definition of theft in Article 308 of the Revised Penal Code, "there is only one operative act of execution by the actor involved in theft the taking of personal property of another." Elucidating further, the Court held, thus: x x x Parsing through the statutory definition of theft under Article 308, there is one apparent answer provided in the language of the law that theft is already "produced" upon the "tak[ing of] personal property of another without the latters consent." xxxx x x x when is the crime of theft produced? There would be all but certain unanimity in the position that theft is produced when there is deprivation of personal property due to its taking by one with intent to gain. Viewed from that perspective, it is immaterial to the product of the felony that the offender, once having committed all the acts of execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner alone has already ensued from such acts of execution. x x x xxxx x x x we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. x x x x x x Unlawful taking, which is the deprivation of ones personal property, is the element which produces the felony in its consummated stage. x x x 13 From the above discussion, there can be no question that as of the time that petitioner took possession of the check meant for Mega Foam, she had performed all the acts to consummate the crime of theft, had it not been impossible of accomplishment in this case. The circumstance of petitioner receiving the P5,000.00 cash as supposed replacement for the dishonored check was no longer necessary for the consummation of the crime of qualified theft. Obviously, the plan to convince Baby Aquino to give cash as replacement for the check was hatched only after the check

had been dishonored by the drawee bank. Since the crime of theft is not a continuing offense, petitioner's act of receiving the cash replacement should not be considered as a continuation of the theft. At most, the fact that petitioner was caught receiving the marked money was merely corroborating evidence to strengthen proof of her intent to gain. Moreover, the fact that petitioner further planned to have the dishonored check replaced with cash by its issuer is a different and separate fraudulent scheme. Unfortunately, since said scheme was not included or covered by the allegations in the Information, the Court cannot pronounce judgment on the accused; otherwise, it would violate the due process clause of the Constitution. If at all, that fraudulent scheme could have been another possible source of criminal liability. IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals, dated December 16, 2003, and its Resolution dated March 5, 2004, are MODIFIED. Petitioner Gemma T. Jacinto is found GUILTY of an IMPOSSIBLE CRIME as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Petitioner is sentenced to suffer the penalty of six (6) months of arrresto mayor, and to pay the costs. SO ORDERED. DIOSDADO M. PERALTA Associate Justice WE CONCUR: CONSUELO YNARES-SANTIAGO Associate Justice Chairperson MINITA V. CHICO-NAZARIO, PRESBITERO J. VELASCO, JR., ANTONIO EDUARDO B. NACHURA ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. CONSUELO YNARES-SANTIAGO Associate Justice Third Division, Chairperson CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice

EN BANC ARISTOTEL VALENZUELA y NATIVIDAD, Petitioner, G. R. No. 160188

treatment of the question was followed in 1929, in People v. Sobrevilla,[4] and in 1984, in Empelis v. IAC.[5] This petition now gives occasion for us to finally and fully measure if or how frustrated theft is susceptible to commission under the Revised Penal Code. I. Present: PUNO, C.J., QUISUMBING, SANTIAGO, GUTIERREZ, MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, VELASCO, and NACHURA, JJ. Promulgated: June 21, 2007 The basic facts are no longer disputed before us. The case stems from an Information[6] charging petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the Super Sale Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his post at the open parking area of the supermarket. Lago saw petitioner, who was wearing an identification card with the mark Receiving Dispatching Unit (RDU), hauling a push cart with cases of detergent of the well-known Tide brand. Petitioner unloaded these cases in an open parking space, where Calderon was waiting. Petitioner then returned inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide Ultramatic and again unloaded these boxes to the same area in the open parking space.[7]

versus CARPIO,

PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS, Respondents.

x----------------------------------------------------------------------------x DECISION TINGA, J.: This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively concedes having performed the felonious acts imputed against him, but instead insists that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its consummated stage of which he was convicted. The proposition rests on a common theory expounded in two well-known decisions[1] rendered decades ago by the Court of Appeals, upholding the existence of frustrated theft of which the accused in both cases were found guilty. However, the rationale behind the rulings has never been affirmed by this Court. As far as can be told,[2] the last time this Court extensively considered whether an accused was guilty of frustrated or consummated theft was in 1918, in People v. Adiao.[3] A more cursory

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the parking space where Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were apprehended at the scene, and the stolen merchandise recovered.[8] The filched items seized from the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of detergent, the goods with an aggregate value of P12,090.00.[9] Petitioner and Calderon were first brought to the SM security office before they were transferred on the same day to the Baler Station II of the Philippine National Police, Quezon City, for investigation. It appears from the police investigation records that apart from petitioner and Calderon, four (4) other persons were apprehended by the security guards at the scene and delivered to police custody at the Baler PNP Station in connection with the incident. However, after the matter was referred to the Office of the Quezon City Prosecutor, only petitioner and Calderon were charged with theft by the Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after the incident.[10] After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they were haled by Lago and his fellow security guards after a commotion and brought to the Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was at the Super Sale Club to withdraw from his ATM account, accompanied by his neighbor, Leoncio Rosulada.[11] As the queue for the ATM was long, Calderon and Rosulada decided to buy snacks inside the supermarket. It was while they were eating that they heard the gunshot fired by Lago, leading them to head out of the building to check what was

transpiring. As they were outside, they were suddenly grabbed by a security guard, thus commencing their detention.[12] Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio Valenzuela,[13] had been at the parking lot, walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The gunshot caused him and the other people at the scene to start running, at which point he was apprehended by Lago and brought to the security office. Petitioner claimed he was detained at the security office until around 9:00 p.m., at which time he and the others were brought to the Baler Police Station. At the station, petitioner denied having stolen the cartons of detergent, but he was detained overnight, and eventually brought to the prosecutors office where he was charged with theft.[14] During petitioners cross-examination, he admitted that he had been employed as a bundler of GMS Marketing, assigned at the supermarket though not at SM.[15] In a Decision[16] promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90, convicted both petitioner and Calderon of the crime of consummated theft. They were sentenced to an indeterminate prison term of two (2) years of prision correccional as minimum to seven (7) years of prision mayor as maximum.[17] The RTC found credible the testimonies of the prosecution witnesses and established the convictions on the positive identification of the accused as perpetrators of the crime. Both accused filed their respective Notices of Appeal,[18] but only petitioner filed a brief[19] with the Court of Appeals, causing the appellate court to deem Calderons appeal as abandoned and consequently dismissed. Before the Court of Appeals, petitioner argued that he should only be convicted of frustrated theft since at the time he was apprehended, he was never placed in a position to freely dispose of the articles stolen.[20] However, in its Decision dated 19 June 2003,[21] the Court of Appeals rejected this contention and affirmed petitioners conviction.[22] Hence the present Petition for Review,[23] which expressly seeks that petitioners conviction be modified to only of Frustrated Theft.[24] Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his actual participation in the theft of several cases of detergent with a total value of P12,090.00 of which he was charged.[25] As such, there is no cause for the Court to consider a factual scenario other than that presented by the prosecution, as affirmed by the RTC and the Court of Appeals. The only question to consider is whether under the given facts, the theft should be deemed as consummated or merely frustrated. II. In arguing that he should only be convicted of frustrated theft, petitioner cites[26] two decisions rendered many years ago by the Court of Appeals: People v. Dio[27] and People v. Flores.[28] Both decisions elicit the interest of this Court, as they modified trial court convictions from consummated to frustrated theft and involve a factual milieu that bears similarity to the present case. Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet the appellate court did not expressly consider the import of the rulings when it affirmed the conviction. It is not necessary to fault the Court of Appeals for giving short shrift to the Dio and Flores rulings since they have not yet been expressly adopted as precedents by this Court. For whatever reasons,

the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet despite the silence on our part, Dio and Flores have attained a level of renown reached by very few other appellate court rulings. They are comprehensively discussed in the most popular of our criminal law annotations,[29] and studied in criminal law classes as textbook examples of frustrated crimes or even as definitive of frustrated theft. More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate criminal law exams more than they actually occur in real life. Indeed, if we finally say that Dio and Flores are doctrinal, such conclusion could profoundly influence a multitude of routine theft prosecutions, including commonplace shoplifting. Any scenario that involves the thief having to exit with the stolen property through a supervised egress, such as a supermarket checkout counter or a parking area pay booth, may easily call for the application of Dio and Flores. The fact that lower courts have not hesitated to lay down convictions for frustrated theft further validates that Dio and Flores and the theories offered therein on frustrated theft have borne some weight in our jurisprudential system. The time is thus ripe for us to examine whether those theories are correct and should continue to influence prosecutors and judges in the future.

III. To delve into any extended analysis of Dio and Flores, as well as the specific issues relative to frustrated theft, it is necessary to first refer to the basic rules on the three stages of crimes under our Revised Penal Code.[30] Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is consummated when all the elements necessary for its execution and accomplishment are present. It is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. Finally, it is attempted when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. Each felony under the Revised Penal Code has a subjective phase, or that portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender which, with prior acts, should result in the consummated crime.[31] After that point has been breached, the subjective phase ends and the objective phase begins.[32] It has been held that if the offender never passes the subjective phase of the offense, the crime is merely attempted.[33] On the other hand, the subjective phase is completely passed in case of frustrated crimes, for in such instances, [s]ubjectively the crime is complete.[34] Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted felonies on the other. So long as the offender fails to complete all the acts of execution despite commencing the commission of a felony, the crime is undoubtedly in the attempted stage. Since the specific acts of execution that define each crime under the Revised Penal Code are generally enumerated in the code itself, the task of ascertaining whether a crime is attempted only

would need to compare the acts actually performed by the accused as against the acts that constitute the felony under the Revised Penal Code. In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession that all of the acts of execution have been performed by the offender. The critical distinction instead is whether the felony itself was actually produced by the acts of execution. The determination of whether the felony was produced after all the acts of execution had been performed hinges on the particular statutory definition of the felony. It is the statutory definition that generally furnishes the elements of each crime under the Revised Penal Code, while the elements in turn unravel the particular requisite acts of execution and accompanying criminal intent. The long-standing Latin maxim actus non facit reum, nisi mens sit rea supplies an important characteristic of a crime, that ordinarily, evil intent must unite with an unlawful act for there to be a crime, and accordingly, there can be no crime when the criminal mind is wanting.[35] Accepted in this jurisdiction as material in crimes mala in se,[36] mens rea has been defined before as a guilty mind, a guilty or wrongful purpose or criminal intent,[37] and essential for criminal liability.[38] It follows that the statutory definition of our mala in se crimes must be able to supply what the mens rea of the crime is, and indeed the U.S. Supreme Court has comfortably held that a criminal law that contains no mens rea requirement infringes on constitutionally protected rights.[39] The criminal statute must also provide for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not enough that mens rea be shown; there must also be an actus reus.[40]

3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm products. Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by which theft may be committed.[41] In the present discussion, we need to concern ourselves only with the general definition since it was under it that the prosecution of the accused was undertaken and sustained. On the face of the definition, there is only one operative act of execution by the actor involved in theft the taking of personal property of another. It is also clear from the provision that in order that such taking may be qualified as theft, there must further be present the descriptive circumstances that the taking was with intent to gain; without force upon things or violence against or intimidation of persons; and it was without the consent of the owner of the property. Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised Penal Code, namely: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things.[42] In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early Roman law as defined by Gaius, was so broad enough as to encompass any kind of physical handling of property belonging to another against the will of the owner,[43] a definition similar to that by Paulus that a thief handles (touches, moves) the property of another.[44] However, with the Institutes of Justinian, the idea had taken hold that more than mere physical handling, there must further be an intent of acquiring gain from the object, thus: [f]urtum est contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve.[45] This requirement of animo lucrandi, or intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it has since been abandoned in Great Britain.[46]

It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is produced. As a postulate in the craftsmanship of constitutionally sound laws, it is extremely preferable that the language of the law expressly provide when the felony is produced. Without such provision, disputes would inevitably ensue on the elemental question whether or not a crime was committed, thereby presaging the undesirable and legally dubious set-up under which the judiciary is assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code does not suffer from such infirmity. From the statutory definition of any felony, a decisive passage or term is embedded which attests when the felony is produced by the acts of execution. For example, the statutory definition of murder or homicide expressly uses the phrase shall kill another, thus making it clear that the felony is produced by the death of the victim, and conversely, it is not produced if the victim survives. We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements are spelled out as follows: Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latters consent. Theft is likewise committed by: 1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner; 2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage caused by him; and

In Spanish law, animo lucrandi was compounded with apoderamiento, or unlawful taking, to characterize theft. Justice Regalado notes that the concept of apoderamiento once had a controversial interpretation and application. Spanish law had already discounted the belief that mere physical taking was constitutive of apoderamiento, finding that it had to be coupled with the intent to appropriate the object in order to constitute apoderamiento; and to appropriate means to deprive the lawful owner of the thing.[47] However, a conflicting line of cases decided by the Court of Appeals ruled, alternatively, that there must be permanency in the taking[48] or an intent to permanently deprive the owner of the stolen property;[49] or that there was no need for permanency in the taking or in its intent, as the mere temporary possession by the offender or disturbance of the proprietary rights of the owner already constituted apoderamiento.[50] Ultimately, as Justice Regalado notes, the Court adopted the latter thought that there was no need of an intent to permanently deprive the owner of his property to constitute an unlawful taking.[51]

So long as the descriptive circumstances that qualify the taking are present, including animo lucrandi and apoderamiento, the completion of the operative act that is the taking of personal property of another establishes, at least, that the transgression went beyond the attempted stage. As applied to the present case, the moment petitioner obtained physical possession of the cases of detergent and loaded them in the pushcart, such seizure motivated by intent to gain, completed without need to inflict violence or intimidation against persons nor force upon things, and accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating benefit a conviction for only attempted theft would have afforded him. On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the theft would have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient to produce theft as a consequence, do not produce [such theft] by reason of causes independent of the will of the perpetrator. There are clearly two determinative factors to consider: that the felony is not produced, and that such failure is due to causes independent of the will of the perpetrator. The second factor ultimately depends on the evidence at hand in each particular case. The first, however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised Penal Code[52] as to when a particular felony is not produced, despite the commission of all the acts of execution. So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how exactly is the felony of theft produced. Parsing through the statutory definition of theft under Article 308, there is one apparent answer provided in the language of the law that theft is already produced upon the tak[ing of] personal property of another without the latters consent. U.S. v. Adiao[53] apparently supports that notion. Therein, a customs inspector was charged with theft after he abstracted a leather belt from the baggage of a foreign national and secreted the item in his desk at the Custom House. At no time was the accused able to get the merchandise out of the Custom House, and it appears that he was under observation during the entire transaction.[54] Based apparently on those two circumstances, the trial court had found him guilty, instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and holding instead that the accused was guilty of consummated theft, finding that all the elements of the completed crime of theft are present.[55] In support of its conclusion that the theft was consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the discussion of which we replicate below: The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment caught by the policeman but sometime later. The court said: "[x x x] The trial court did not err [x x x ] in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing that the policemen who saw the accused take the fruit from the adjoining land arrested him in the act and thus prevented him from taking full possession of the thing stolen and even its utilization by him for an interval of time." (Decision of the Supreme Court of Spain, October 14, 1898.) Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on account of the solemnity of the act, although noticing the theft, did not do anything to

prevent it. Subsequently, however, while the defendant was still inside the church, the offended party got back the money from the defendant. The court said that the defendant had performed all the acts of execution and considered the theft as consummated. (Decision of the Supreme Court of Spain, December 1, 1897.) The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from the case took a small box, which was also opened with a key, from which in turn he took a purse containing 461 reales and 20 centimos, and then he placed the money over the cover of the case; just at this moment he was caught by two guards who were stationed in another room nearby. The court considered this as consummated robbery, and said: "[x x x] The accused [x x x] having materially taken possession of the money from the moment he took it from the place where it had been, and having taken it with his hands with intent to appropriate the same, he executed all the acts necessary to constitute the crime which was thereby produced; only the act of making use of the thing having been frustrated, which, however, does not go to make the elements of the consummated crime." (Decision of the Supreme Court of Spain, June 13, 1882.)[56] It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal actors in all these cases had been able to obtain full possession of the personal property prior to their apprehension. The interval between the commission of the acts of theft and the apprehension of the thieves did vary, from sometime later in the 1898 decision; to the very moment the thief had just extracted the money in a purse which had been stored as it was in the 1882 decision; and before the thief had been able to spirit the item stolen from the building where the theft took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no consequence in those cases, as it was ruled that the thefts in each of those cases was consummated by the actual possession of the property belonging to another. In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than consummated theft. The case is People v. Sobrevilla,[57] where the accused, while in the midst of a crowd in a public market, was already able to abstract a pocketbook from the trousers of the victim when the latter, perceiving the theft, caught hold of the [accused]s shirt-front, at the same time shouting for a policeman; after a struggle, he recovered his pocket-book and let go of the defendant, who was afterwards caught by a policeman.[58] In rejecting the contention that only frustrated theft was established, the Court simply said, without further comment or elaboration: We believe that such a contention is groundless. The [accused] succeeded in taking the pocketbook, and that determines the crime of theft. If the pocket-book was afterwards recovered, such recovery does not affect the [accuseds] criminal liability, which arose from the [accused] having succeeded in taking the pocket-book.[59] If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the fact that the offender was able to succeed in obtaining physical possession of the stolen item, no matter how momentary, was able to consummate the theft. Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in this case. Yet to simply affirm without further comment would be disingenuous, as there is another school of thought on when theft is consummated, as reflected in the Dio and Flores decisions.

Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The accused therein, a driver employed by the United States Army, had driven his truck into the port area of the South Harbor, to unload a truckload of materials to waiting U.S. Army personnel. After he had finished unloading, accused drove away his truck from the Port, but as he was approaching a checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck and found therein three boxes of army rifles. The accused later contended that he had been stopped by four men who had loaded the boxes with the agreement that they were to meet him and retrieve the rifles after he had passed the checkpoint. The trial court convicted accused of consummated theft, but the Court of Appeals modified the conviction, holding instead that only frustrated theft had been committed. In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles pass through the checkpoint, perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it would be allowed to pass through the check point without further investigation or checking.[60] This point was deemed material and indicative that the theft had not been fully produced, for the Court of Appeals pronounced that the fact determinative of consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more or less momentary.[61] Support for this proposition was drawn from a decision of the Supreme Court of Spain dated 24 January 1888 (1888 decision), which was quoted as follows: Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la consumacion del delito de hurto es preciso que so haga en circunstancias tales que permitan al sustractor la libre disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no puede decirse en realidad que se haya producido en toda su extension, sin materializar demasiado el acto de tomar la cosa ajena.[62] Integrating these considerations, the Court of Appeals then concluded:

merchandise as well.[65] The accused was prosecuted for theft qualified by abuse of confidence, and found himself convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative that he was guilty only of attempted theft, but the appellate court pointed out that there was no intervening act of spontaneous desistance on the part of the accused that literally frustrated the theft. However, the Court of Appeals, explicitly relying on Dio, did find that the accused was guilty only of frustrated, and not consummated, theft. As noted earlier, the appellate court admitted it found no substantial variance between Dio and Flores then before it. The prosecution in Flores had sought to distinguish that case from Dio, citing a traditional ruling which unfortunately was not identified in the decision itself. However, the Court of Appeals pointed out that the said traditional ruling was qualified by the words is placed in a situation where [the actor] could dispose of its contents at once.[66] Pouncing on this qualification, the appellate court noted that [o]bviously, while the truck and the van were still within the compound, the petitioner could not have disposed of the goods at once. At the same time, the Court of Appeals conceded that [t]his is entirely different from the case where a much less bulk and more common thing as money was the object of the crime, where freedom to dispose of or make use of it is palpably less restricted,[67] though no further qualification was offered what the effect would have been had that alternative circumstance been present instead.

This court is of the opinion that in the case at bar, in order to make the booty subject to the control and disposal of the culprits, the articles stolen must first be passed through the M.P. check point, but since the offense was opportunely discovered and the articles seized after all the acts of execution had been performed, but before the loot came under the final control and disposal of the looters, the offense can not be said to have been fully consummated, as it was frustrated by the timely intervention of the guard. The offense committed, therefore, is that of frustrated theft.[63] Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of apprehension is determinative as to whether the theft is consummated or frustrated. This theory was applied again by the Court of Appeals some 15 years later, in Flores, a case which according to the division of the court that decided it, bore no substantial variance between the circumstances [herein] and in [Dio].[64] Such conclusion is borne out by the facts in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery receipt for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his truck at the terminal of the stevedoring company. The truck driver proceeded to show the delivery receipt to the guard on duty at the gate of the terminal. However, the guards insisted on inspecting the van, and discovered that the empty sea van had actually contained other

Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to whether the crime of theft was produced is the ability of the actor to freely dispose of the articles stolen, even if it were only momentary. Such conclusion was drawn from an 1888 decision of the Supreme Court of Spain which had pronounced that in determining whether theft had been consummated, es preciso que so haga en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas o menos momentaneamente. The qualifier siquiera sea mas o menos momentaneamente proves another important consideration, as it implies that if the actor was in a capacity to freely dispose of the stolen items before apprehension, then the theft could be deemed consummated. Such circumstance was not present in either Dio or Flores, as the stolen items in both cases were retrieved from the actor before they could be physically extracted from the guarded compounds from which the items were filched. However, as implied in Flores, the character of the item stolen could lead to a different conclusion as to whether there could have been free disposition, as in the case where the chattel involved was of much less bulk and more common x x x, [such] as money x x x.[68] In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of the Dio ruling:

There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely dispose of the stolen articles even if it were more or less momentary. Or as stated in another case[[69]], theft is consummated upon the voluntary and malicious taking of property belonging to another which is realized by the material occupation of the thing whereby the thief places it under his control and in such a situation that he could dispose of it at once. This ruling seems to have

been based on Viadas opinion that in order the theft may be consummated, es preciso que se haga en circumstancias x x x [[70]][71] In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also states that [i]n theft or robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the same, although his act of making use of the thing was frustrated.[72] There are at least two other Court of Appeals rulings that are at seeming variance with the Dio and Flores rulings. People v. Batoon[73] involved an accused who filled a container with gasoline from a petrol pump within view of a police detective, who followed the accused onto a passenger truck where the arrest was made. While the trial court found the accused guilty of frustrated qualified theft, the Court of Appeals held that the accused was guilty of consummated qualified theft, finding that [t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual taking with intent to gain is enough to consummate the crime of theft.[74] In People v. Espiritu,[75] the accused had removed nine pieces of hospital linen from a supply depot and loaded them onto a truck. However, as the truck passed through the checkpoint, the stolen items were discovered by the Military Police running the checkpoint. Even though those facts clearly admit to similarity with those in Dio, the Court of Appeals held that the accused were guilty of consummated theft, as the accused were able to take or get hold of the hospital linen and that the only thing that was frustrated, which does not constitute any element of theft, is the use or benefit that the thieves expected from the commission of the offense.[76] In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that [w]hen the meaning of an element of a felony is controversial, there is bound to arise different rulings as to the stage of execution of that felony.[77] Indeed, we can discern from this survey of jurisprudence that the state of the law insofar as frustrated theft is concerned is muddled. It fact, given the disputed foundational basis of the concept of frustrated theft itself, the question can even be asked whether there is really such a crime in the first place. IV. The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. As we undertake this inquiry, we have to reckon with the import of this Courts 1984 decision in Empelis v. IAC.[78] As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his plantation, in the act of gathering and tying some coconuts. The accused were surprised by the owner within the plantation as they were carrying with them the coconuts they had gathered. The accused fled the scene, dropping the coconuts they had seized, and were subsequently arrested after the owner reported the incident to the police. After trial, the accused were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised Penal Code,[79] but further held that the accused were guilty only of frustrated qualified theft. It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated was raised by any of the parties. What does appear, though, is that the disposition of that issue was contained in only two sentences, which we reproduce in full:

However, the crime committed is only frustrated qualified theft because petitioners were not able to perform all the acts of execution which should have produced the felony as a consequence. They were not able to carry the coconuts away from the plantation due to the timely arrival of the owner.[80] No legal reference or citation was offered for this averment, whether Dio, Flores or the Spanish authorities who may have bolstered the conclusion. There are indeed evident problems with this formulation in Empelis. Empelis held that the crime was only frustrated because the actors were not able to perform all the acts of execution which should have produced the felon as a consequence.[81] However, per Article 6 of the Revised Penal Code, the crime is frustrated when the offender performs all the acts of execution, though not producing the felony as a result. If the offender was not able to perform all the acts of execution, the crime is attempted, provided that the non-performance was by reason of some cause or accident other than spontaneous desistance. Empelis concludes that the crime was

frustrated because not all of the acts of execution were performed due to the timely arrival of the owner. However, following Article 6 of the Revised Penal Code, these facts should elicit the conclusion that the crime was only attempted, especially given that the acts were not performed because of the timely arrival of the owner, and not because of spontaneous desistance by the offenders. For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two sentences we had cited actually aligned with the definitions provided in Article 6 of the Revised Penal Code, such passage bears no reflection that it is the product of the considered evaluation of the relevant legal or jurisprudential thought. Instead, the passage is offered as if it were sourced from an indubitable legal premise so settled it required no further explication. Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we cannot see how Empelis can contribute to our present debate, except for the bare fact that it proves that the Court had once deliberately found an accused guilty of frustrated theft. Even if Empelis were considered as a precedent for frustrated theft, its doctrinal value is extremely compromised by the erroneous legal premises that inform it, and also by the fact that it has not been entrenched by subsequent reliance.

Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot present any efficacious argument to persuade us in this case. Insofar as Empelis may imply that convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to reassessment. V.

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de Espaa was then in place. The definition of the crime of theft, as provided then, read as follows: Son reos de hurto: 1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad de su dueo. 2. Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la apropriaren co intencin de lucro. 3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado, salvo los casos previstos en los art culos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo del 617 y 618. It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were handed down. However, the said code would be revised again in 1932, and several times thereafter. In fact, under the Codigo Penal Espaol de 1995, the crime of theft is now simply defined as [e]l que, con nimo de lucro, tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado[82] Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, la libre disposicion of the property is not an element or a statutory characteristic of the crime. It does appear that the principle originated and perhaps was fostered in the realm of Spanish jurisprudence. The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the 1870 Codigo Penal de Espaa. Therein, he raised at least three questions for the reader whether the crime of frustrated or consummated theft had occurred. The passage cited in Dio was actually utilized by Viada to answer the question whether frustrated or consummated theft was committed [e]l que en el momento mismo de apoderarse de la cosa ajena, vindose sorprendido, la arroja al suelo.[83] Even as the answer was as stated in Dio, and was indeed derived from the 1888 decision of the Supreme Court of Spain, that decisions factual predicate occasioning the statement was apparently very different from Dio, for it appears that the 1888 decision involved an accused who was surprised by the employees of a haberdashery as he was abstracting a layer of clothing off a mannequin, and who then proceeded to throw away the garment as he fled.[84] Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of the Supreme Court of Spain that have held to that effect.[85] A few decades later, the esteemed Eugenio Cuello Caln pointed out the inconsistent application by the Spanish Supreme Court with respect to frustrated theft. Hay frustracin cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de harino del carro que los conducia a otro que ten an preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la intervencin de la policia situada en el local donde se realiz la sustraccin que impidi pudieran los reos disponer de lo sustra do, 30 de octubre 1950. Hay "por lo menos" frustracin, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril

1930; hay frustracin "muy prxima" cuando el culpable es detenido por el perjudicado acto seguido de cometer la sustraccin, 28 febrero 1931. Algunos fallos han considerado la existencia de frustracin cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, stos, conforme a lo antes expuesto, son hurtos consumados.[86] Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually possible: La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda de hecho a la disposicin del agente. Con este criterio coincide la doctrina sentada ltimamente porla jurisprudencia espaola que generalmente considera consumado el hurto cuando el culpable coge o aprehende la cosa y sta quede por tiempo ms o menos duradero bajo su poder. El hecho de que ste pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carcter de consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe la frustracin, pues es muy dificil que el que hace cuanto es necesario para la consumacin del hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos delitos consumados.[87] (Emphasis supplied) Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the Spanish Supreme Court decisions on the matter, Cuello Caln actually set forth his own thought that questioned whether theft could truly be frustrated, since pues es muy dificil que el que hace cuanto es necesario para la consumacin del hurto no lo consume efectivamente. Otherwise put, it would be difficult to foresee how the execution of all the acts necessary for the completion of the crime would not produce the effect of theft. This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that obliges us to accept frustrated theft, as proposed in Dio and Flores. A final ruling by the Court that there is no crime of frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a submission is hardly heretical in light of Cuello Calns position. Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a fresh perspective, as we are not bound by the opinions of the respected Spanish commentators, conflicting as they are, to accept that theft is capable of commission in its frustrated stage. Further, if we ask the question whether there is a mandate of statute or precedent that must compel us to adopt the Dio and Flores doctrines, the answer has to be in the negative. If we did so, it would arise not out of obeisance to an inexorably higher command, but from the exercise of the function of statutory interpretation that comes as part and parcel of judicial review, and a function that allows breathing room for a variety of theorems in competition until one is ultimately adopted by this Court. V. The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature, through statute, to define what constitutes a particular crime in this jurisdiction. It is the legislature, as representatives of the sovereign people, which determines which acts or combination of acts are criminal in nature. Judicial interpretation of penal laws should be aligned with what was the evident legislative intent, as expressed primarily in the language of the law as it defines the crime. It is Congress, not the courts, which is to define a crime, and ordain its

punishment.[88] The courts cannot arrogate the power to introduce a new element of a crime which was unintended by the legislature, or redefine a crime in a manner that does not hew to the statutory language. Due respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain from a broad interpretation of penal laws where a narrow interpretation is appropriate. The Court must take heed of language, legislative history and purpose, in order to strictly determine the wrath and breath of the conduct the law forbids.[89] With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability of the offender to freely dispose of the property stolen is not a constitutive element of the crime of theft. It finds no support or extension in Article 308, whether as a descriptive or operative element of theft or as the mens rea or actus reus of the felony. To restate what this Court has repeatedly held: the elements of the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things.[90] Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal property of another without the latters consent. While the Dio/Flores dictum is considerate to the mindset of the offender, the statutory definition of theft considers only the perspective of intent to gain on the part of the offender, compounded by the deprivation of property on the part of the victim. For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the question is again, when is the crime of theft produced? There would be all but certain unanimity in the position that theft is produced when there is deprivation of personal property due to its taking by one with intent to gain. Viewed from that perspective, it is immaterial to the product of the felony that the offender, once having committed all the acts of execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner alone has already ensued from such acts of execution. This conclusion is reflected in Chief Justice Aquinos commentaries, as earlier cited, that [i]n theft or robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the same, although his act of making use of the thing was frustrated.[91] It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of taking itself, in that there could be no true taking until the actor obtains such degree of control over the stolen item. But even if this were correct, the effect would be to downgrade the crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution have not been completed, the taking not having been accomplished. Perhaps this point could serve as fertile ground for future discussion, but our concern now is whether there is indeed a crime of frustrated theft, and such consideration proves ultimately immaterial to that question. Moreover, such issue will not apply to the facts of this particular case. We are satisfied beyond reasonable doubt that the taking by the petitioner was completed in this case. With intent to gain, he acquired physical possession of the stolen cases of detergent for a considerable period of time that he was able to drop these off at a spot in the parking lot, and long enough to load these onto a taxicab.

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same.[92] And long ago, we asserted in People v. Avila:[93] x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated into the physical power of the thief, which idea is qualified by other conditions, such as that the taking must be effected animo lucrandi and without the consent of the owner; and it will be here noted that the definition does not require that the taking should be effected against the will of the owner but merely that it should be without his consent, a distinction of no slight importance.[94] Insofar as we consider the present question, unlawful taking is most material in this respect. Unlawful taking, which is the deprivation of ones personal property, is the element which produces the felony in its consummated stage. At the same time, without unlawful taking as an act of execution, the offense could only be attempted theft, if at all. With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft cannot have a frustrated stage. Theft can only be attempted or consummated. Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained possession over the stolen items, the effect of the felony has been produced as there has been deprivation of property. The presumed inability of the offenders to freely dispose of the stolen property does not negate the fact that the owners have already been deprived of their right to possession upon the completion of the taking. Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to freely dispose of the stolen property frustrates the theft would introduce a convenient defense for the accused which does not reflect any legislated intent,[95] since the Court would have carved a viable means for offenders to seek a mitigated penalty under applied circumstances that do not admit of easy classification. It is difficult to formulate definite standards as to when a stolen item is susceptible to free disposal by the thief. Would this depend on the psychological belief of the offender at the time of the commission of the crime, as implied in Dio?

Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the property, the location of the property, the number and identity of people present at the scene of the crime, the number and identity of people whom the offender is expected to encounter upon fleeing with the stolen property, the manner in which the stolen item had been housed or stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item would come into account, relevant as that would be on whether such property is capable of free disposal at any stage, even after the taking has been consummated. All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was indeed deprived of property by one who intended to produce such deprivation for reasons of gain. For such will remain the presumed fact if frustrated theft were recognized, for therein, all of the acts of execution, including the taking, have been completed. If the facts establish the non-completion of the taking due to these peculiar circumstances, the effect could be to downgrade the crime to the attempted stage, as not all of the acts of execution have been

performed. But once all these acts have been executed, the taking has been completed, causing the unlawful deprivation of property, and ultimately the consummation of the theft. Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the legislated framework of the crime of theft. The Revised Penal Code provisions on theft have not been designed in such fashion as to accommodate said rulings. Again, there is no language in Article 308 that expressly or impliedly allows that the free disposition of the items stolen is in any way determinative of whether the crime of theft has been produced. Dio itself did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was ultimately content in relying on Dio alone for legal support. These cases do not enjoy the weight of stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not since found favor from this Court. We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has latched the success of his appeal on our acceptance of the Dio and Flores rulings, his petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has taken all these years for us to recognize that there can be no frustrated theft under the Revised Penal Code does not detract from the correctness of this conclusion. It will take considerable amendments to our Revised Penal Code in order that frustrated theft may be recognized. Our deference to Viada yields to the higher reverence for legislative intent. WHEREFORE, the petition is DENIED. Costs against petitioner. SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice RENATO C. CORONA Associate Justice CONCHITA CARPIO MORALES Associate Justice ADOLFO S. AZCUNA Associate Justice MINITA V. CHICO-NAZARIO Associate Justice CANCIO C. GARCIA Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice CERTIFICATION Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO Chief Justice

DANTE O. TINGA Associate Justice WE CONCUR:

REYNATO S. PUNO Chief Justice

LEONARDO A. QUISUMBING Associate Justice CONSUELO YNARES-SANTIAGO Associate Justice ANGELINA SANDOVAL-GUTIERREZ Associate Justice ANTONIO T. CARPIO Associate Justice

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

Contrary to Article 248 in relation to Article 14 of the Revised Penal Code. Arraigned on January 22, 1990, 8 both appellants entered a plea of not guilty. Trial ensued. Thereafter, the lower court rendered its assailed Decision, 9 the dispositive part of which we quote thus: WHEREFORE, premises considered, this Court finds all the three accused in conspiracy with each other, GUILTY beyon[d] reasonable doubt of the crime of MURDER, qualified by treachery as principal by direct participation as punished under the Revised Penal Code. This Court hereby sentences the two accused, Vincent Dejoras and Ignacio Copino, the third accused being at large, to individually suffer the penalty of RECLUSION PERPETUA without the attendance of any mitigating circumstance and to jointly and severally pay indemnity to the heirs of the victim the sum of P50,000.00 for the death of Gromyko Valliente, P40,000.00 as actual damages and burial expenses, P20,000.00 moral damages, and to pay the costs. 10 In view of the penalty imposed, the appeal was filed directly with this Court. 11 The Facts Version of the Prosecution In its Brief, 12 the Office of the Solicitor General presents the facts in this wise: At around 9:45 in the evening of August 16, 1989, during the celebration of the town fiesta of Patag, Cagayan de Oro City, accused Ramon Galos and Gromyko Valiente (herein victim) were having a heated argument in front of Dod's Store, which was owned by a certain Piloton, located at the crossing of Patag (Testimony of Silverio Bahian, TSN, September 6, 1990, pp. 4-5; Testimony of Ferdinand Bangayan, TSN, July 2, 1990, pp. 5-6). Then, appellants Ignacio Cupino and Vincent Dejoras arrived, and a fistfight erupted. Cupino, Dejoras and Galos ganged up on Valiente who also fought back (Testimony of Silverio Bahian at pp. 6-7, supra; Testimony of Ferdinand Bangayan at p. 7, supra.). Beaten and outnumbered, Valiente ran away towards the direction of a small pathway leading to the store of a certain Major Grio, which was beside Dod's Store. The trio chased . . . him (Testimony of Ferdinand Bangayan at p. 10, id.). Galos caught up with Valiente and then stabbed him twice in the stomach with a small bolo (Testimony of Silverio Bahian at pp. 9-10, supra.). With the bolo still embedded on his stomach, Valiente crawled along the pathway. Cupino also caught up with Valiente (pp. 11-12, id.). Then Cupino pulled the bolo from the victim's body and was about to stab the victim again when Dejoras tried to grab Cupino's hands, but instead Dejoras got hold of the blade of the bolo and was

G.R. No. 125688 April 3, 2000 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. IGNACIO CUPINO, 1 VINCENT DEJORAS and RAMON GALOS a.k.a. Jun, accused, IGNACIO CUPINO and VINCENT DEJORAS, accused-appellants.

PANGANIBAN, J.: Conspiracy must be established by proof beyond reasonable doubt. In the present appeal, the prosecution eyewitness testified that one of the appellants had joined the other accused in approaching the victim, but subsequently tried to prevent them from stabbing this same victim. Such dubious participation is insufficient to prove beyond reasonable doubt that the said appellant conspired with the others in committing the offense. Accordingly, the constitutional presumption of innocence must be upheld. He must be acquitted. The Case Vincent Dejoras and Ignacio Cupino 2 appeal the March 6, 1995 Decision 3 of the Regional Trial Court (RTC) of Cagayan de Oro City (Branch 25). Dejoras and Cupino, together with one Ramon Galos, 4 were convicted of robbery with murder and sentenced to reclusion perpetua. On October 19, 1989, an Information 5 was filed by Fourth Assistant City Fiscal Petronio P. Pilien, charging the three as follows: That on or about August 16, 1989, at more or less 9:45 in the evening . . ., at Patag Crossing, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, with intent to kill[;] armed with a knife [with] which one of them was then conveniently provided[;] with treachery, evident premeditation, superior strength, did then and ther[e] wilfully, unlawfully and feloniously [through] accused (Ramon Galos alias Jun), . . . [stab] one Gromyco 6 Valliente 7 [hitting him] at the left/right portion of his arm and abdomen, thus inflicting mortal wounds upon [the] offended party's person which directly caused his instantaneous death.

injured in the process. Dejoras left, coming out of the pathway with his wounded right hand (pp. 12-13, id.). Meanwhile, Cupino proceeded to stab the victim twice in the stomach. Afterward, Cupino and Galos fled from the scene of the crime (p. 14, id.). Valiente, who was seriously wounded and soaked in his own blood, cried for help. He was brought to a hospital but later died (p. 19, id.; Testimony of Ferdinand Bangayan at pp. 12-13, supra.). The autopsy conducted on the victim's body revealed that he sustained four (4) stab wounds: one on the left subpostal margin, another wound on the right subpostal margin, and two (2) sutured wounds on the left cocital area. The wound that was inflicted on the pancreas of the victim was considered fatal since it caused the massive hemorrhage. The cause of death was attributed to massive intra-abdominal hemorrhage due to multiple stab wounds (Testimony of Dr. Apolinar Vacalares, TSN, February 13, 1991, pp. 6-7). 13 Version of the Defense

away. Upon the realization that his right hand was bloodied, and fearing that more harm would fall upon them, Copino and Dejoras too ran away. Dejoras went to City Hospital to have his wound treated and then they went home. At midnight of the same day, a policeman went to his house and brought him to the OKK Police Station where he was booked into the police blotter. The following day, Copino and Dejoras learned that Gromyko Valiente had died. Together with their parents the[y] went to the Tourism Hall to have their statements taken by the police. 14 Ruling of the Trial Court The trial court ruled that (1) appellants were guilty of murder, as the killing was qualified by treachery; (2) conspiracy was proven by the chain of circumstantial evidence submitted; and (3) the aggravating circumstance of superior strength was absorbed by treachery and may no longer be used to increase the penalty to its maximum period. The Issues

For their part, appellants submit the following as the facts of the case: Appellants aver that the court a quo committed the following errors: On August 16, 1999, Ignacio Copino celebrated the town fiesta of Patag, Cagayan de Oro City at home with his family and friends, one of whom was Vincent Dejoras. After eating dinner at around 7:00 p.m., Dejoras, together with his co-workers, headed for home. Copino decided to accompany the group and at the Patag crossing, he was able to convince Dejoras to go to the "perya" and gamble, as he had P30 with him. The pair lost all of the P30 in the "pula-puti" game and decided to call it quits. On their way home, they saw Ramon Galos "alias Panit" and Grom[yk]o Valiente "alyas Bobong", two of their acquaintances, apparently having an altercation. They were about two meters from Galos and Valiente when Galos suddenly said: "Nasi is here (referring to Copino), you hit him." (Transcript of Stenographic Notes, VINCENT DEJORAS, Hearing April 4, 1991, page 7). Galos then kicked Valiente and the latter fell down. Valiente was able to get up and run towards an alley at the back of Dod's store with Galos in close pursuit. Copino and Dejoras ran after the two with the intention to pacify the fighters. Galos was able to corner Valiente and once again, the two traded blows. When Copino and Dejoras were finally able to catch up with the two, they noticed that Valiente was already bleeding. Eyewitness Silverio Bahian later recounted that he saw Panit pull out a bolo and stab Bobong.1wphi1.nt Dejoras, on his part, tried to stop Galos from inflicting more wounds and he too was wounded in the process. What happened was that instead of holding Galos' hand, he was able to hold the blade of the knife, thereby injuring himself. Galos then ran I. In failing to appreciate the testimony of accused-appellants and in giving full weight and credit to the version of prosecution witnesses. II. In holding that there was conspiracy between accused-appellants.

III. In holding that accused-appellants herein [were] guilty as charged. 15 We shall discuss the foregoing issues in the following sequence: (1) credibility of the prosecution evidence, (2) conspiracy and (3) proper penalty. The Court's Ruling This appeal is partly meritorious. We affirm the challenged Decision in regard to Ignacio Cupino, but reverse it in regard to Vincent Dejoras. First Issue Credibility of Prosecution Witnesses Appellants challenge the trial court's assessment of the credibility of the prosecution witnesses. They argue that there are contradictions patent in their testimonies. We disagree. As we have repeatedly said, the trial court's assessment of the credibility of witnesses is generally binding upon us. 16 Alter a thorough review of the records

before us, we find no reason to disagree with the trial court in finding no material inconsistency in the prosecution witnesses' testimonies. Neither are we impressed with appellants' assertion that the evidence for the prosecution is weak. The claims of the defense are belied by the clear, credible and straightforward testimony of Prosecution Eyewitness Silverio Bahian, which we quote: Q At this time, August 16, 1989, at more or less 9:45 p.m., what particular place in the store of Piloton? A xxx Q A xxx Q any? A xxx Q place? A [In front] of the store. xxx xxx

Q A Q A Q A Q A

What about the other person [with] whom he had an altercation? Going to the crossing. What happened after they had an altercation? After their altercation, this Nasi 19 and Beni 20 were walking from the road. Who is this Nasi? Nasi Copino. Who is this Beni? Dejoras.

What where you doing there? I was reading komiks. xxx xxx

Q When these two came, Beni and Nasi, where were the two who were having an argument? A Mr. Bahian approached the two who were having an altercation.

While you were there at Piloton store, reading komiks, what happened if Q What about the person [with] whom he had an altercation? Where was he at that time? There was an argument between Bobong Valiente 17 and Panit. 18 A xxx xxx Q Panit? A [In front] of me. Q When you said they ganged up on Bobong, to whom are you referring . . .? Panit, Nasi and Beni. A So, what happened after Bobong went to Nasi and Beni and the other person They ganged up [on] Bobong. Now, you said that there was an argument, where did this altercation [take] He followed him.

Q How far away from you? From where you are sitting, point to any object within the court room to indicate what you [meant by "in front"] of you? A Q Less than a meter. From where you are sitting, point to any object[.]

Q From your place in relation to the place where they ganged up on Bobong, how far away was that? A About three meters. xxx xxx

A This chair. This table or this chair I am sitting on. [In front] of me. Just very near me. Q A From what direction was this Bobong coming . . .? Going to the checkpoint.

xxx

Q Where [was] this place in relation to you whe[n] they ganged up on Bobong?

In the middle of the road. Q What was used in the stabbing of Bobong by Panit? A small bolo. A

Q And what was the condition of the road on that night of August 16, 1989 at 9:45 p.m.? A Q A Q A It was bright. Why do you say that it [was] "hayag"?

Q Will you please describe the small bolo or what appears to be a bolo to you? How long was this? A About 12 inches including the handle. What about the blade? Was this double bladed or not? Single bladed.

Because there was a lamppost. Q Where [was] this lamppost located in relation to you? A [In front] of me. ACP CABALLERO, JR.: (resuming). Q Now, what happened after Bobong was held up by this Panit and stabbed twice as you said? What happened to Bobong? A Bobong crawled going to a small alley.

Q So, what happened after they ganged up . . . this Nasi, Beni and Panit, as you said, they ganged up on Bobong? What happened? A Since Bobong [could] not keep up a fight with the three, Bobong ran towards me. Q A Q What happened after Bobong ran towards you as you said? He was being held by Panit.

Q You mentioned this alley. Now, from where you are situated then while reading komiks [on] this alley, how far was this from you? A Just here.

Will you demonstrate how he was h[e]ld by Panit? (Witness stretching his left arm going to his left side) Q What happened to the small bolo which was used in the stabbing? Do you know where was it at the time Bobong crawled? A The small bolo was still embedded on the left portion just below the breast, solar plexus. Q So, what happened after Bobong crawled[;] who was going to the area which you testified was just near you? A Q A Q A Nasi caught up with him. You mentioned, of course, . . . Nasi. Nasi who? Copino. What happened after he was overtaken by Nasi Copino? Nasi pulled the small bolo.

A (Witness demonstrating by stretching his left arm and closing hi[s] fist and twisting it to his left side). Q A So, what happened after that? After he was held up and as you said twisted? Panit stabbed Bobong.

Q Will you please demonstrate again how Panit stabbed Bobong after he held him and[;] pulling him[,] he thrust the knife forward? A Q A Q A (Witness demonstrating his right arm forward). How many times was he stabbed by Panit? This Bobong? I think twice. And where was this Bobong hit if he was hit? In the stomach.

What happened next after Nasi pulled the small bolo?

Q A Q

So, what happened to Bobong after he parried the stab of Nasi? Bobong fell down. What happened after that? Nasi again stabbed Bobong. And where was Bobong hit at this particular time? In the stomach. So, what happened after that? Nasi ran away. 21

A When he was about to thrust the small bolo to the body of Bobong, his friend held his hand. Q hand? A Q A Q A Q A Q A Q A Q A Q A Q A Q A Who [was] this companion of Nasi that you are referring to who held up his

A Beni. Do you know the real name of Beni? It is only his nickname that I know. Beni what? Dejoras. What happened after the hand of Nasi was held up by Beni? It was the small bolo which was held by Beni. Which part of the knife was held by Beni Dejoras? The blade. So, what happened after he held the blade? Nasi pulled the small bolo, and that [was] why Beni was wounded. What happened after Beni was injured? Beni went out. And where was Nasi then at this time when Beni, as you said, went out? Q A Q A

The above testimony clearly demonstrates the conspiracy between Ramon Galos and Appellant Ignacio Cupino. Both of them showed their common intent to kill Valliente. On the part of Galos, conspiracy was shown by his act of grabbing the fleeing victim, simultaneously drawing his small bolo or pisaw, and stabbing the latter twice. By running after the wounded victim, Cupino showed unity of purpose with Galos. When he eventually caught up with the victim, Cupino pulled out the bolo that was embedded in the body of the latter and used it to stab him again. Clearly, by the consonance of their deeds, both assailants conspired to kill Valliente. 22 We agree with the court a quo that treachery qualified the slaying to murder. By diverting the attention of Valliente to the approaching Dejoras and Cupino, Galos was obviously making sure that the victim could not defend himself. When Valliente turned his back, Galos began his attack, which eventually led to the stabbing of the former. Treachery was not necessarily precluded by either the occurrence of a tussle before the victim was killed 23 or by the frontal nature of the attack. 24 We also agree with the lower court that the aggravating circumstance of abuse of superior strength was absorbed by alevosia. 25 Second Issue

Nasi was still [in front] of Bobong. Conspiracy: Dejoras' Liability Was he motionless [in front] of Bobong or what? He continued to stab Bobong. Where was Bobong hit when he was stabbed by Nasi? At first, he was able to parry the thrust of Nasi. Though we uphold the findings of the trial court with regard to Appellant Cupino, we differ with its conclusion that Appellant Dejoras was guilty. It is axiomatic that the prosecution must establish conspiracy beyond reasonable doubt. 26 Conspiracy is not a harmless innuendo to be taken lightly or accepted at every turn. It is a legal concept that imputes culpability under specific circumstances.

27 As such, it must be established as clearly as any element of the crime. The quantum of evidence to be satisfied is, we repeat, beyond reasonable doubt. 28 In People v. Elijorde, 29 a case with similar facts, we said: Indeed, with respect to accused Reynaldo Punzalan, the Court cannot assert with moral certainty that he is guilty of murder. Conspiracy must be proved as indubitably as the crime itself through clear and convincing evidence, not merely by conjecture. To hold an accused guilty as a co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the complicity. Hence, conspiracy, exists in a situation where at the time the malefactors were committing the crime, their actions impliedly showed unity of purpose among them, a concerted effort to bring about the death of the victim. In a great majority of cases, complicity was established by proof of acts done in concert, i.e., acts which yielded the reasonable inference that the doers thereof were acting with a common intent or design. Therefore, the task in every case is determining whether the particular acts established by the requisite quantum of proof do reasonably yield that inference. (Footnotes omitted) Thus, in Elijorde we found one of the accused, a certain Punzalan, innocent under the circumstances. 30 Similarly, in the present case, we find Appellant Vincent Dejoras not guilty. Unlike the trial court, we are quite mindful of the testimony of Prosecution Eyewitness Bahian regarding Appellant Dejoras' participation in that bloody incident on the eve of the fiesta. His answers to the propounded questions merely established that Dejoras joined Galos and Cupino when they approached the victim. The prosecution filled, however, to show, what Dejoras specifically did that proved his participation in the conspiracy. Rather, what the said eyewitness said was that Dejoras tried to prevent Cupino from stabbing the victim, clearly showing that he did not support the criminal intent and conspiracy of the other two accused. 31 These incontrovertible data lead to one conclusion: there is reasonable doubt on whether Dejoras conspired with Galos and Cupino in killing Valliente. We are therefore constrained to exonerate him. Indeed, guilt must be proven beyond reasonable doubt. In this case, there is reasonable doubt on the culpability of Appellant Dejoras as a principal. Dejoras cannot be held liable as an accomplice, either. 32 In Elijorde, 33 we said: The cooperation that the law punishes is the assistance knowingly or intentionally rendered which cannot exist without previous cognizance of the criminal act intended to be executed. It is therefore required in order to be liable either as a principal by indispensable cooperation or as an accomplice that the accused must unite with the criminal design of the principal by direct participation.

The acts of Appellant Dejoras showed that he was not aware of his companions' intent to kill Valliente; at the very least, there is reasonable doubt as to his knowledge thereof. In any event, community of design, the first of the requisite elements that must be present before a person may be held liable as an accomplice, is lacking. 34 On the prosecution's theory that Dejoras may have inflicted injury on the victim when he joined in the fray, we have combed the records and found no basis for this speculation. We note that the eyewitness could not recount the details of the brawl, but merely provided a general picture, saying that everything happened so fast. 35 Hence, we find no basis for Appellant Dejoras' liability even for physical injuries. 36 Additional Questions Penalty and Damages When the crime was committed, the penalty for murder was reclusion temporal (maximum) to death. 37 Since no generic modifying circumstance was proven, the trial court correctly sentenced Cupino to reclusion perpetua. 38 We increase to P50,000 the award for moral damages, in consonance with current jurisprudence. 39 The facts showing moral damages were proven during the trial. However, the established actual damages amount to only P30,000, not P40,000 as found by the lower court. 40 The award of P50,000 civil indemnity for the death of Gromyko Valliente is affirmed. 41 WHEREFORE, we AFFIRM the appealed Decision insofar as it found Appellant Ignacio Cupino GUILTY of MURDER and sentenced him to reclusion perpetua. Appellant Cupino is solely responsible for paying the heirs of the victim, Gromyko Valliente, the amounts of P50,000 as indemnity ex delicto, P30,000 as actual damages and P50,000 as moral damages. Appellant Vincent Dejoras is ACQUITTED and ordered RELEASED from custody IMMEDIATELY, unless he is being legally held for another cause. In this regard, the Director of the Bureau of Corrections is directed to report his compliance, within five (5) days from receipt hereof. Costs against Appellant Cupino. SO ORDERED.1wphi1.nt Melo, Vitug, Purisima and Gonzaga-Reyes, JJ., concur.

EN BANC RESOLUTION PEOPLE OF THE PHILIPPINES, Appellee, PER CURIAM: Most jurisdictions recognize age as a barrier to having full responsibility over ones action.[1] Our legal system, for instance, does not punish a youth as it would an adult, and it sees youthful misconduct as evidence of unreasoned or impaired judgment. Thus, in a myriad of cases, we have applied the privileged mitigating circumstance of minority embodied in Article 68 of the Revised Penal Code -- the rationale of which is to show mercy and some extent of leniency in favor of an accused who, by reason of his age, is presumed to have acted with less discernment. The case at bar is another instance when the privileged mitigating circumstance of minority must apply. For our resolution is the motion for reconsideration[2] filed by brothers James Anthony and James Andrew, both surnamed Uy, praying for the reduction of the penalties we imposed upon the latter on the ground that he was a minor at the time the crimes were committed. A brief review of the pertinent facts is imperative. Present: PANGANIBAN, C.J. PUNO, QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, NAZARIO, and GARCIA, JJ. Promulgated: January 31, 2006 x--------------------------------------------------x On February 3, 2004, we rendered a Decision[3] convicting the Uy brothers, together with Francisco Juan Larraaga, Josman Aznar, Rowen Adlawan, Alberto Cao and Ariel Balansag of the crimes of (a) special complex crime of kidnapping and serious illegal detention with homicide and rape; and (b) simple kidnapping and serious illegal detention. The dispositive portion of the Decision reads: WHEREFORE, the Decision of the Regional Trial Court, Branch 7, Cebu City in Criminal Cases Nos. CBU 45303 and 45304 is AFFIRMED with the following MODIFICATIONS: (1) In Criminal Case No. CBU-45303, appellants FRANCISCO JUAN LARRAAGA alias PACO; JOSMAN AZNAR; ROWEN ADLAWAN alias WESLEY; ALBERTO CAO alias ALLAN PAHAK; ARIEL BALANSAG; and JAMES ANDREW UY alias MM, are found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape and are sentenced to suffer the penalty of DEATH by lethal injection; (2) In Criminal Case No. CBU-45304, appellants FRANCISCO JUAN LARRAAGA alias PACO; JOSMAN AZNAR; ROWEN ADLAWAN alias WESLEY; ALBERTO CAO alias ALLAN PAHAK; ARIEL BALANSAG; and JAMES ANDREW UY alias MM, are found guilty beyond reasonable doubt of

- versus -

FRANCISCO JUAN LARRAAGA alias PACO; JOSMAN AZNAR; ROWEN ADLAWAN alias WESLEY; ALBERT CAO alias ALLAN PAHAK; ARIEL BALANSAG; DAVIDSON VALIENTE RUSIA alias TISOY TAGALOG; JAMES ANTHONY UY alias WANGWANG; and JAMES ANDREW UY alias MM, Appellants. G.R. Nos. 138874-75

simple kidnapping and serious illegal detention and are sentenced to suffer the penalty of RECLUSION PERPETUA; (3) In Criminal Case No. CBU-45303, appellant JAMES ANTHONY UY who was a minor at the time the crime was committed, is likewise found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA; in Criminal Case No. CBU-45304, he is declared guilty of simple kidnapping and serious illegal detention and is sentenced to suffer the penalty of TWELVE (12) years of prision mayor in its maximum period, as MINIMUM, to seventeen (17) years of reclusion temporal in its medium period, as MAXIMUM; (4) Appellants are ordered to pay jointly and severally the heirs of Marijoy and Jacqueline, in each case, the amounts of (a) P100,000.00 as civil indemnity; (b) P25,000.00 as temperate damages; (c) P150,000.00 as moral damages; and (d) P100,000.00 as exemplary damages. Three (3) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional and the death penalty can be lawfully imposed in the case at bar. In accordance with Article 83 of The Revised Penal Code, as amended by Section 25 of RA No. 7659, upon the finality of this Decision let the records of this case be forthwith forwarded to the Office of the President for the possible exercise of Her Excellencys pardoning power. SO ORDERED. On March 23, 2004, the Uy brothers filed a motion for reconsideration anchored on the following grounds: I ACCUSED JAMES ANDREW S. UY WAS, LIKE HIS YOUNGER BROTHER JAMES ANTHONY S. UY, A MINOR AT THE TIME THE OFFENSES AT BAR ALLEGEDLY HAPPENED LAST JULY 16, 1997; II THE IDENTITY OF THE DEAD BODY OF THE WOMAN FOUND IN TANAWAN, CARCAR, CEBU LAST JULY 18, 1997 WAS NEVER CONCLUSIVELY ESTABLISHED THUS THE NEED FOR ITS EXHUMATION FOR DNA TESTING.[4]

The issues raised in the above motion being intertwined with those raised by Larraaga, Aznar, Adlawan, Cao and Balansag in their separate motions for reconsideration, we deemed it appropriate to consolidate the motions. After a painstaking evaluation of every piece and specie of evidence presented before the trial court in response to the movants plea for the reversal of their conviction, still we are convinced that the movants guilt has been proved beyond reasonable doubt. Thus, in our Resolution dated July 21, 2005, we denied all the motions. However, left unresolved is the issue of James Andrews minority. Hence, this disquisition. In their motion, the Uy brothers claim that James Andrew was only seventeen (17) years and two hundred sixty two (262) days old at the time the crimes were committed. To substantiate such claim, he begs leave and pleads that we admit at this stage of the proceedings his (1) Certificate of Live Birth issued by the National Statistics Office, and (2) Baptismal Certificate. In the ultimate, he prays that his penalty be reduced, as in the case of his brother James Anthony. Considering that the entry of James Andrews birth in the proffered Certificate of Live Birth is not legible, we required the Solicitor General (a) to secure from the City Civil Registrar of Cotobato, as well as the National Statistics Office, a clear and legible copy of James Certificate of Live Birth, and thereafter, (b) to file an extensive comment on the Uy brothers motion, solely on the issue of James Andrews minority. On November 17, 2005, the Solicitor General submitted his comment. Attached therewith are clear and legible copies of James Certificate of Live Birth duly certified by the Office of the City Civil Registrar of Cotobato and the National Statistics Office. Both documents bear the entry October 27, 1979 as the date of his birth, thus, showing that he was indeed only 17 years and 262 days old when the crimes were committed on July 16, 1997. Consequently, the Solicitor General recommended that the penalty imposed on James Andrew be modified as follows: In Criminal Case No. CBU-45303 for the special complex crime of kidnapping and serious illegal detention with homicide and rape, the death penalty should be reduced to reclusion perpetua. In Criminal Case No. CBU-45304, for the crime of simple kidnapping and serious illegal detention, the penalty of reclusion perpetua should be reduced to twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum, similar to the penalty imposed on his brother James Anthony in Criminal Case No. CBU-45303.

The motion is meritorious. Article 68 of the Revised Penal Code provides: ART. 68. Penalty to be imposed upon a person under eighteen years of age. When the offender is a minor under eighteen years and his case is one coming under the provisions of the paragraph next to the last of article 80 of this Code, the following rules shall be observed: xxx 2. Upon a person over fifteen and under eighteen years of age the penalty next lower than that prescribed by law shall be imposed, but always in the proper period. Thus, the imposable penalty on James Andrew, by reason of his minority, is one degree lower than the statutory penalty. The penalty for the special complex crime of kidnapping and serious illegal detention with homicide and rape, being death, one degree lower therefrom is reclusion perpetua.[5] On the other hand, the penalty for simple kidnapping and serious illegal detention is reclusion perpetua to death. One degree lower therefrom is reclusion temporal.[6] There being no aggravating and mitigating circumstance, the penalty to be imposed on James Andrew is reclusion temporal in its medium period. Applying the Indeterminate Sentence Law, he should be sentenced to suffer the penalty of twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum.[7] Accordingly, in Criminal Case No. CBU-45303, the penalty of reclusion perpetua should be imposed upon James Andrew; while in Criminal Case No. CBU-45304, the imposable penalty upon him is twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum. WHEREFORE, the motion for reconsideration is hereby GRANTED. Our Decision dated February 3, 2004 is AFFIRMED with the MODIFICATION that in Criminal Case No. CBU-45303, James Andrew Uy is sentenced to suffer the penalty of reclusion perpetua; while in Criminal Case No. CBU-45304, the penalty of twelve (12) years of prision mayor in its maximum period, as MINIMUM, to seventeen (17) years of reclusion temporal in its medium period, as maximum. SO ORDERED.

Chief Justice REYNATO S. PUNO Associate Justice CONSUELO YNARES-SANTIAGO Associate Justice MA. ALICIA AUSTRIA-MARTINEZ Associate Justice CONCHITA CARPIO MORALES Associate Justice ADOLFO S. AZCUNA Associate Justice MINITA CHICO-NAZARIO Associate Justice LEONARDO A. QUISUMBING Associate Justice ANGELINA SANDOVAL-GUTIERREZ Associate Justice ANTONIO T. CARPIO Associate Justice RENATO C. CORONA Associate Justice ROMEO J. CALLEJO, SR. Associate Justice DANTE O. TINGA Associate Justice CANCIO C. GARCIA Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Resolution were reached in consultation before the case was assigned to the writer of the opinion of the Court. ARTEMIO V. PANGANIBAN Chief Justice

ARTEMIO V. PANGANIBAN

Republic of the Philippines SUPREME COURT Manila EN BANC

Appellants Gerry Sumalpong and Melchor Fernando pleaded not guilty. 4 Accused Joseph Lumunggo and Billy Laksinto could not be arraigned, since they were at large. After due trial, the Regional Trial Court of Cotabato City, Branch 14 5 convicted both appellants of the crime charged in its Decision 6 dated December 27, 1995, the dispositive portion of which reads: WHEREFORE, in the light of all the foregoing, the Court finds the guilt of Accused Gerry Sumalpong and Melchor Fernando established beyond reasonable doubt and therefore guilty of the offense charged in the information and hereby sentences each of them for the death of Arola Dilangalen to suffer the penalty of DEATH and to indemnify the heirs of Arola Dilangalen jointly and severally, in the amount of [o]ne hundred thousand pesos (P100,000.00) as and for exemplary damages. For the wounding of Mohammad Managuili, the accused are each sentenced to suffer the penalty of 17 years, 4 months and one day to twenty years of Reclusion Temporal in its maximum period, with the accessories of the law and to pay the said victim, jointly and Severally, the amount of [f]ifty thousand pesos (P50,000.00), as and for actual and moral damages. Let the entire records of this case together with the transcript of stenographic notes be forwarded to the Supreme Court immediately for review. No costs. 7 The Facts Version of the Prosecution

G.R. No. 124705 January 20, 1998 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERRY SUMALPONG, JOSEPH LUMUNGGO, MELCHOR FERNANDO and BILLY LAKSINTO, accused, GERRY SUMALPONG and MELCHOR FERNANDO, accused-appellants.

PANGANIBAN, J.: The Court finds occasion to reiterate the time-settled rule that the attendant circumstances in the commission of a crime must be proved as solidly as the offense itself, and any doubt as to their presence must be resolved in favor of the accused. In the clear absence of any generic aggravating circumstance attending the murder, appellants may be sentenced only to reclusion perpetua, not death as imposed by the trial court. The Case In an Information 1 dated January 17, 1994, Cotabato City Prosecutor Ortillano D. Tan charged Gerry Sumalpong, Joseph Lumunggo, Melchor Fernando and Billy Laksinto with the crimes of murder and frustrated murder 2 allegedly committed as follows: That on or about January 12, 1994, in the City of Cotabato, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, armed with sharp-pointed instruments, with treachery and evident premeditation and with intent to kill, did then and there wilfully, unlawfully and feloniously attack, assault and stab with said weapons Arola Dilangalen and Mohammad Managili, 3 thereby inflicting upon Arola Dilangalen mortal wounds which caused his death, and inflicting upon Mohammad Managili mortal wounds which could have caused his death, thus the accused have performed all the acts of execution which would have produced the crime of murder as a consequence but which, nevertheless, did not produce it by reason of the timely medical assistance rendered to Mohammad Managili which prevented his death. After a thorough perusal of the evidence proffered by both the prosecution and the defense, we find the facts as narrated by the trial court to be fairly reflective of the evidence for the prosecution. The relevant portions are hereinbelow reproduced: . . . [On] January 12, 1994 at about 8:00 o'clock in the evening, Arola Dilangalen and Mohammad Managuili escorted home their friend, Jukaris Buan at Nayon Shariff Kabunsuan, Cotabato City taking a service owned by a certain Nong Fred. Only Jukaris Buan alighted upon reaching home and thereafter, the owner of the service vehicle together with Arola Dilangalen and Mohammad Managuili returned way back home. Arola Dilangalen and Mohammad Managuili alighted at 4J Pizza House along Notre Dame Avenue to take merienda. After both took merienda, they went out of the pizza parlor to go home. While waiting for a tricycle to take them home, they saw four (4) men near an electric post around five (5) meters away at the other side fronting the 4J pizza parlor, who suddenly and simultaneously stabbed them. Arola Dilangalen died of hemorrhage and antecedent multiple wounds as shown in the Death Certificate marked as "Exhibit A". Mohammad Managuili sustained stab wounds on the right ant[erior]-axillary line as shown in the Medical Certificate which was marked as "Exhibit B". 8

Managuili was initially brought to an emergency hospital, then transferred to the Cotabato Regional Hospital where his wound was sutured by Dr. Pearlie Sibud. 9 He was confined there until January 14, 1994, 10 the same day on which Police Officer Bernard Tayong brought before him five persons, including Appellant Gerry Sumalpong, for identification purposes. Sumalpong was positively identified by Managuili as one of the assailants. 11 Bai Farida Dilangalen, mother of Victim Arola, testified that, upon learning that her son was stabbed to death, she collapsed and felt grief, while her husband suffered hypertension. She estimated that they spent P70,000 12 for the burial of her son and for other ceremonies for the dead under the Muslim tradition. Version of the Defense Both appellants denied participation in the crime. Each gave his respective alibi. According to Melchor Fernando, 13 he worked continuously at his employer's shop, making balusters, from 7:00 a.m. to 10:00 p.m. on January 12, 1994, with only tenminute breaks for his lunch and supper. He denied previously knowing his coaccused and claims that the first time he saw the latter was in the city jail. 14 Appellant Fernando's statement was corroborated by his father. The latter testified that, from the porch of their house, he saw Melchor working at the shop, which was only a few meters away, about 8:30 p.m. until almost 11:00 p.m. on January 12, 1994. 15 Melchor's employer, Mr. Lauro Navarro, also confirmed 16 that said accused worked with him from 7:00 a.m. to past 10:00 p.m. that day. Most significant was his explanation of their work procedure. He said that, in making balusters, they had to wait for four (4) hours from the time they poured mixed cement into the molding until it hardened. Melchor would usually go home to eat and sleep during the waiting time, and Navarro would just wake him up when his services were needed again. The other accused, Gerry Sumalpong, claimed that he was at home reading in the evening of January 12, 1994. 17 This was confirmed by his father 18 and another witness, Arnel Hinaut, who allegedly saw Sumalpong between seven and eight o'clock that evening reading a book at the balcony of their house. 19 Sumalpong and his father added that when the police presented them in a lineup for identification purposes at the hospital on January 14, 1994, Managuili, before whom they were presented, failed to identify Sumalpong as one of the assailants. 20 Ruling of the Trial Court In refusing to give credence to the defenses of Appellants Sumalpong and Fernando, the court a quo ratiocinated: . . . The Court cannot consider the alibi of Gerry Sumalpong seriously. First, 8:00 o'clock is still early in the evening and it[']s unusual for a college student to sleep at

said time; Second, the testimony of Arnel Hinaut cannot be given credence for as jeepney conductor, he does not even know Notre Dame Avenue and 4J pizza house but knows Notre Dame University, when in truth and in fact, Notre Dame University is along Notre Dame Avenue and it is impossible for a jeepney plying Awang to Super, vice versa not passing the intersection of Notre Dame Avenue and Quezon Avenue (Parang road); Third, in the penultimate part of the affidavit of PO1 Bernard Tayong which was earlier quoted and affirmed by the latter, Gerry Sumalpong claimed that he was allegedly buying a pack of sliced mango when he saw Joseph Lumunggo, Melchor Fernando and Billy Laksinto, helping or conspiring [with] one another in assaulting the two victims with their respective knife [sic] which means that Gerry Sumalpong was at the scene of the crime and in fact one of the perpetrators. This was affirmed by PO1 Tayong when he conducted another investigation at the crime scene and where the couple Rolando and Mona Dumaldal confided to him that on the evening of the stabbing incident, they saw four (4) male persons namely Gerry Sumalpong, Joseph Lumunggo, a ceratin [sic] Peryong and one male person unknown to them running to the interior portion near Sto. Nio Chapel and that he saw Joseph Lumunggo inserting a knife in his waistline but that these [sic] couple refused to testify for reasons known only to them. Fourth, that he is a student of Dela Vida College, which is about 20 meters from the 4J Pizza house, and a resident of Fatima II which is around 150 meters away from Dela Vida College, thus, their house is walking distance to their school and to the crime scene; Lastly, Gerry Sumalpong was positively identified by Mohammad Managuili as the one who stabbed him. xxx xxx xxx

The Court cannot give credence to said alibi of Melchor Fernando. First, he testified that he worked continuosly [sic] from 7:00 o'clock in the morning to 10:00 o'clock in the evening except for meal breaks which was [sic] about 20 minutes but his neighbor-employer testified that while waiting for the ballusters [sic] to harden which is about four (4) hours, they did not have work thus his neighborworker/helper Melchor Fernando went home, slept and woke him up if his services was [sic] needed; Second, his neighbor-employer testified that they had (3) three pourings on said date but Melchor Fernando, testified that they had four (4) pourings; Third, it is hard to believe that his father, Elpidio Fernando, after a hectic day's work being a mason watched him working from 8:30 to almost 11:00 o'clock in the evening; Fourth, the residence of Accused Melchor Fernando is just a few minutes ride from the scene of the crime; Fifth, in the testimony of PO1 Bernard Tayong, Melchor Fernando is one of the three persons named by Accused Gerry Sumalpong, who helped or conspired one another in assaulting the two victims which means that accused Gerry Sumalpong knows Melchor Fernando and other perpetrators of the crime; Lastly, Melchor Fernando was positively identified by victim Mohammad Managuili as one of the four persons who attacked them. 21 The trial court also found the presence of treachery in the sudden and simultaneous attack against the victims "who were unarmed and unsuspecting." It also believed

that there was conspiracy among the accused. But, without any explanation, it found that evident premeditation aggravated the crime. Thus, it imposed upon both accused-appellants the penalty of death for the fatal stabbing of Arola Dilangalen and reclusion temporal maximum for the wounding of Mohammad Managuili, with damages. Hence, this appeal. 22 Assignment of Errors In the appellants' brief 23 dated January 3, 1997 and prepared jointly by their respective counsels, 24 the following alleged errors in the assailed Decision were assigned: I. The lower court erred in totally crediting the identification made by the prosecution witness of the appellants as the perpetrators of the crime charged. II. The lower court erred in totally discrediting the defense of very strong alibi interposed by the appellants. III. The lower court erred in finding the appellants guilty of conspiracy; affidavit of prosecution witness PO1 Tayong is purely hearsay. IV. The lower court erred in not acquitting appellants on the ground that his guilt was not proved beyond reasonable doubt. V. The lower court erred in not finding that Appellant Melchor Fernando is entitled to mitigating circumstance of voluntary surrender. VI. The lower court erred in totally admitting in evidence the medical certificates issued by the physicians. Simply stated, the issues raised by the appellants are the following: 1. 2. 3. 4. Sufficiency and credibility of prosecution evidence Strength of appellants' defense of alibi Presence of conspiracy Appreciation of voluntary surrender in favor of Appellant Fernando

This Court's Ruling The appeal is partly meritorious. After a thorough review of the evidence and the applicable law, we find that evident premeditation and voluntary surrender were wrongly appreciated by the trial court. While affirming the criminal culpability of both appellants, we remind trial judges to be more circumspect in justifying their conclusions particularly in offenses punishable by death. The judicial taking of life cannot be lightly treated. The duty of the courts is to discover the truth based on facts and solid evidence adduced by the parties; not on surmises, conjectures and dialectics. Conclusions must always be supported by the quantum of proof required by criminal by law proof beyond reasonable doubt in criminal offenses. First Issue: Sufficiency and Credibility of Prosecution Evidence In the matter of examining real evidence and assessing the credibility of witnesses, the well-entrenched rule is that the findings of the trial courts deserve great weight and high respect, since they are in a better position than appellate tribunals in appreciating the same. 25 In People vs. Cayabyab, 26 this Court elaborated: . . . [T]he issue on which witness is to be believed is one best addressed by a trial court rather than by an appellate tribunal. Having the advantage of directly observing witnesses, "the trial judge is able to detect that sometimes thin line between fact and prevarication that will determine the guilt or innocence of the accused. That line may not be discernible from a mere reading of the impersonal record by the reviewing court. That record will not reveal those tell-tale signs that will affirm the truth or expose the contrivance, like the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply. The record will not show if the eyes have darted in evasion or looked down in confession or gazed steadily with a serenity that has nothing to distort or conceal. The record will not show if tears were shed in anger, or in shame, or in remembered pain, or in feigned innocence. Only the judge trying the case can see all these and on the basis of his observations arrive at an informed and reasoned verdict." Thus, his factual findings are accorded high respect and are generally not disturbed by the appellate court unless found to be clearly arbitrary or unfounded. . . . 27 In any event, because death was imposed by the trial court, we waded through the entire records only to conclude that it correctly appreciated the main evidence (but not, we stress, that involving evident premeditation and voluntary surrender). Appellants primarily assail the credence given by the court a quo to their identification by the surviving victim, Mohammad Managuili. They aver instead that on the night in question, it was dark and Managuili supposedly saw the assailants

Inasmuch as a review of decisions imposing death opens the whole record, we exercise judicial discretion in reevaluating the trial court's finding that evident premeditation aggravated the felony, upon which it based its imposition of the capital penalty.

only for the first time during said incident. They posit that in order to positively recognize any of the aggressors under limited visibility, the witness should be familiar with the latter's facial features. 28 We find no merit in these contentions. The surviving victim positively and unequivocally pointed to Appellant Sumalpong as his assailant and to Appellant Fernando as one of those who attacked the deceased, Arola Dilangalen. We find no reason to doubt Managuili's testimony, since there was only a five-meter distance between him and Sumalpong who, with his group, was beside an illuminated mercury lamppost. We quote relevant portions of the surviving victim's testimony: Q At what point of Notre Dame Avenue did you wait for a tricycle to bring you home? A Q A At the front of the 4J Pizza House. For how long did it take you to wait for a tricycle? About a minute, sir. One minute.

Q You said there were four (4) men who approached you about 5 meters away in front of the 4J Pizza House, if these four men would be shown to you, would you be able to re-identify them? A Yes, sir.

Q Now right inside the courtroom, please inform the Honorable Court whether you could recognize any or all of the four men who approached you on that evening of January 12, 1994 if they are inside the courtroom? A Yes, sir.

Q Please point with your finger any or all of the four men if they are inside the courtroom. A The two of them, sir.

MR. ARUMPAC: Witness pointing to the accused who when asked their names answered Gerry Sumalpong and Melchor Fernando. xxx xxx xxx

Q After waiting for tricycle to ride in going home for about one minute, what happened? A Someone approached us, sir.

Q Who approached you while waiting for tricycle in going home in front of 4J Pizza House? A Q A Q A Four (4) persons, sir.

ATTY. DILANGALEN: What about the other two, can you see them inside the courtroom? A They are not here, sir.

What are these four persons who approaced [sic] you, male or female? Male, sir. Where did they come from? At the other side of the 4J Pizza House. Q You said that you were approached by these four men, what did they do when these four men which included these two accused when they approached you? A Q A Q They stabbed us. Who stabbed you? That one, sir. You are referring to Gerry Sumalpong? Yes, sir. xxx xxx

Q Before these four men approached you, how far were they from you when you saw them? A Q A About five (5) meters, sir.

A Now, when these 4 men approached you, what did they do? xxx They stabbed us, sir.

Q Now, you said Gerry Sumalpong was with the three other men or boys, what did these three other men do on that evening to you and Arola Dilangalen? A xxx They stabbed Arola Dilangalen. xxx xxx

[Q] Are you sure that Melchor Fernando was holding a knife or only his companions? A I am sure, sir.

Q How did you recognize Gerry Sumalpong and the other accused on that evening when they stabbed you? A Q A Because there was a light, sir. What kind of light was there at the time the accused stabbed you? A mercury post, sir. 29

Q Is it not true that the other two companions of Melchor Fernando were the ones who attacked Arola Dilangalen and not Melchor because Melchor was right behind on the other side? A No, sir. The three of them attacked Arola. 30

Neither did he falter when the trial court itself asked clarificatory questions. Rather, his additional declarations served to strengthen the credibility of his version of the incident: COURT:

During his cross-examination, Managuili stood firm on his declarations: ATTY. CEDEO: Mohammad Managuili, you did not see of course who stabbed really Arola Dilangalen at that evening? A I saw, sir. A COURT: Q Who are those you saw who stabbed him? A One of them is that one, Fernando. A In front of the 4J Pizza House. On the other side of the road fronting the 4J Pizza House. Q Now, what were they doing at the time you saw them in front of the opposite side of the 4J Pizza House? A Proceed. xxx ATTY. CEDEO: Q Is it not[,] Mohammad Managuili[,] that Melchor Fernando was only there as a companion but without holding a knife or without a weapon? A xxx He had a knife, sir. xxx xxx A Q A The four of them approached you and Arola Dilangalen? Yes, Your Honor. Did they attack you simultaneously? Yes, Your Honor. xxx xxx They were standing near the electric post, Your Honor. Where were those four persons at that time you saw them? Because there was a light. At the time of the incident, did you see the face of Fernando and the other three companions? A Q Yes, Your Honor. How did you see them?

COURT: Witness pointing to the accused.

Q A Q A Q A

Who approached first among the group of Gerry Sumalpong? The three persons, Your Honor. They attacked Arola Dilangalen? Yes, Your Honor. And you are sure that Gerry Sumalpong was the one who attacked you? Yes, Your Honor. 31 Appellants further impugns as hearsay the statements made by SPO1 Tayong in his affidavit. A certain Rolando Dumaldal supposedly informed SPO1. Tayong that he saw Joseph Lumunggo, Gerry Sumalpong, a certain Peryong and an unidentified person leaving the scene of the crime shortly after the stabbing incident, with Lumunggo hiding a knife in his waistline. Tayong also claimed that during the investigation of Appellant Sumalpong, the latter declared that he was buying sliced mango when he saw Joseph Lumunggo, Billy Laksinto and Melchor Fernando stabbing the two victims. Indeed, such declarations by the investigating police officer cannot be admitted in evidence against the appellants, for they are purely hearsay. Dumaldal should have been presented in court to testify on what he actually saw, and the defense given an opportunity to cross-examine him. As regards the alleged statement of Sumalpong imputing the crime to his three co-accused, it cannot be taken as an extrajudicial admission or confession, since he was under investigation when he supposedly made such statement, and it does not appear that he was assisted by counsel or that he waived the presence of one at the time. 37 Nonetheless, the conviction of both appellants does not rest on the testimony of SPO1 Tayong alone. Even without such evidence, appellants' culpability is sufficiently proven by the clear and unequivocal testimony of the surviving victim, who was not shown to have been actuated by any ill motive. The appellants also assail the admission of the death certificate issued by Dr. Zacarias Pabiona, municipal health officer, as evidence of the cause of death of Arola Dilangalen. According to Dr. Pabiona, he based his entry on Arola's cause of death (hemorrhage and antecedent multiple stab wounds) merely on the police report without seeing the victim's body. 38 The death certificate, however, was offered by the prosecution only to prove the fact of Arola's death, and not the cause thereof. As regards the latter, it was sufficiently established by the prosecution that three of the accused, among them Appellant Fernando, simultaneously stabbed Arola who was thereafter brought to the emergency hospital but was declared dead on arrival. This unbroken chain of events leads us to no other conclusion than that Arola's death resulted from his stab wounds. 39 Lastly, appellants, in their Reply Brief, belatedly cite an initial flash report of the police who made a spot investigation a few minutes after the incident took place. They allege that a correct appreciation of this report would further cloud the testimony of the prosecution's sole eyewitness because of the discrepancies between the two. The report 40 adverted to, which has been part of the records of the trial court, was however not properly identified and offered as evidence. It is elementary that this Court, as a reviewing body, cannot rightly appreciate firsthand the genuineness of an unverified and unidentified document; much less, accord it evidentiary value.

Manifest in the attack employed by the offenders was treachery. There is treachery when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution without risk to himself arising from the defense which the offended party might make. 32 Two conditions must concur: (1) the means, method and form of execution employed gave the person attacked no opportunity to defend himself or to retaliate; and (2) such means, method or form of execution was deliberately and consciously adopted by the accused. 33 From the testimony of Managuili who himself was one of the victims, he and his companion were waiting for a tricycle ride when the four accused, who were only five meters across the street, approached them. Without any warning or provocation whatsoever, Sumalpong suddenly stabbed Managuili in the chest, while the three others ganged up on Arola who immediately fell to the ground. 34 All the four accused were armed, while the two victims were not. Both victims, with nary an inkling of danger, had absolutely no chance to defend themselves, much less to retaliate. The attack was undisputably sudden and unexpected. The essence of treachery is the suddenness and unexpectedness of the assault without the slightest provocation on the part of the person attacked. 35 Clearly, in this case the onslaught was treacherous. Appellants also allege that SPO1 Tayong's testimony was evasive, "wanting in candor and alacrity," and "replete with I cannot recall answers when asked about certain materials details of the incident." Again, appellants' contentions are without merit. A police officer is not expected to remember all details of every incident he investigates. The "material" details that the defense tried to elicit from SPO1 Tayong referred to the identities of (1) the duty desk sergeant who informed him of the stabbing incident on the night of January 12, 1994; (2) the other investigators who proceeded to the scene of the crime upon receipt of the information; and (3) the waitresses at the 4J Pizza House from whom he learned the identities of the victims and their having been brought to the hospital. Obviously, these are not material to what actually transpired, who the culprits were, and the involvements of the suspects. 36

On the other hand, we find one contention of the appellants to be meritorious: they could not be convicted of frustrated murder for the injuries inflicted upon the surviving victim, because the prosecution failed to prove that his injuries would have accused his death if no timely medical assistance were rendered to him. Dr. Sibud, the attending physician, simply conducted a "restoration and suturing of the wound," and the medical certificate showed that Managuili was confined at the hospital on January 12-14, 1994. No evidence was offered to establish that his stab wound ("Right Ant. Axillary Line Non Penetrating") 41 was so serious as to have caused his death were it not for the timely medical assistance given him. Where the wound inflicted on the victim is not as severe as to cause his death, the offender not having performed all the acts of execution that would have brought it about, the crime is only attempted murder. 42 Second Issue: Defense of Alibi

As regards Appellant Sumalpong, his claim that he was only studying in their house when the incident took place was not sufficiently corroborated by independent and credible persons. His father testified on direct examination that they went to sleep at ten o'clock in the evening of January 12, 1994, but during cross-examination he said that he slept at eight o'clock. Such fickle testimony is definitely not worthy of credence. If he did sleep at the latter time, he is still not competent to testify on his son's activities thereafter, considering that the stabbing incident reportedly occurred after 8 p.m. We therefore find Appellant Sumalpong's alibi undeserving of belief. Third Issue: Conspiracy

Contending that the prosecution failed to prove their guilt beyond reasonable doubt and to overcome the constitutional presumption of innocence in their favor, appellants insist on their common defense of alibi. In the face of the clear and positive identification of the appellants by the surviving victim himself, alibi becomes unworthy of credence. No jurisprudence in criminal cases is more settled than that alibi is the weakest of all defenses, for which reason it should be rejected when the identity of the accused is sufficiently and positively established by credible eyewitnesses to the crime. 43 Time and again, we have also held that the defense of alibi can prosper only if the accused satisfactorily demonstrates the physical impossibility of his presence at the scene of the crime or within its immediate vicinity when the incident happened. 44 For clarity, we will demonstrate why the aforesaid doctrines militate against both appellants. Inevitably inviting suspicion, to begin with, is Appellant Fernando's claim that he worked continuously from 7:00 a.m. until 10:00 p.m. on January 12, 1994 with only ten-minute breaks for meals. No ordinary human being can sustain any nonstop work; much less, mixing cement and cleaning molders continuously for fifteen hours in one day. Twenty-one-year-old Fernando did not exhibit superhuman stamina that would convince us of the truth of his claim. Besides, he was contradicted by his own employer who testified that, in making balusters, workers had to wait about four hours for the cement to dry up, during which interval Fernando would usually go home to sleep. Moreover, the shop was only a few minutes' ride to the locus criminis. In addition, during the cross-examination of the surviving victim (Managuili), Fernando's counsel 45 tried to elicit from him the admission that Accused Fernando was merely in the company of the assailants but did not participate in the attack. 46 This line of defense runs counter to the alibi interposed by the appellant himself. And even if the appellant's testimony was corroborated by his father, it does not become more plausible since it is supported merely by an immediate relative and not by disinterested, credible persons. 47

Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. 48 Evidence need not establish the actual agreement among the conspirators showing a preconceived plan or motive for the commission of the crime. 49 Proof of concerted action before, during and after the crime, which demonstrates their unity of design and objective, is sufficient. 50 When conspiracy is established, the act of one is the act of all regardless of the degree of participation of each. 51 A conclusion on conspiracy therefore depends greatly on factual findings. It is a legal aphorism that the findings of facts of a trial judge are entitled to great weight and generally should not be disturbed on appeal unless certain facts of substance and value were overlooked or misappreciated which, if considered, may affect the outcome of the case. 52 In the case at bar, we find no compelling reason to reverse the findings and conclusions of the trial court on the presence of conspiracy. From the acts of appellants, it appears that they had a single criminal design to kill or injure both Managuili and Dilangalen. Their overt acts point to the mutuality of their unlawful intent. Fourth Issue: Voluntary Surrender

For voluntary surrender to be appreciated as a mitigating circumstance, the following requisites must concur: (1) the offender had not been actually arrested; (2) the offender surrendered himself to a person in authority; and (3) the surrender was voluntary. 53 The claim of Appellant Fernando that he voluntarily surrendered to the barangay captain who turned him over to the police is belied by the testimonies of his own father and the barangay captain himself. Elpidio Fernando stated 54 in court that in the evening of February 1, 1994, about seven to eight armed persons came to their house to arrest his son Melchor. Although the latter was inside their house, Elpidio refused to present him even when the barangay captain arrived. On the other hand, Barangay Captain Vicente Catacata testified 55 that he first persuaded Appellant Melchor's father prior to persuading Melchor himself on the morning of February 3, 1994 to surrender to his custody. He also guaranteed said accused's safety if he surrendered to the police authorities.

The above circumstances cannot be equated with spontaneous and voluntary surrender to a person in authority. The police had priorly tried to arrest Fernando, but he did not yield himself to them; instead, he implicitly allowed his father to conceal his presence. Then, the barangay captain came, and only with the assurance of safety did he submit himself to the former. His "surrender," therefore, was not of his own knowing and unconditional accord as required by law. It has been held that if the only reason for the accused's supposed surrender is to ensure his safety, his arrest being inevitable, the surrender is not spontaneous and, hence, not voluntary. 56 It is also settled that voluntary surrender cannot be appreciated where the evidence adduced shows that it was the authorities who came looking for the accused. 57 Fifth Issue: Evident Premeditation

The trial court ordered the accused-appellants "to indemnify the heirs of Arola Dilangalen jointly and severally, in the amount of [o]ne hundred thousand pesos (P100,000.00) as and for exemplary damages" and "to pay . . . victim [Mohammad Managuili], jointly and severally, the amount of [f]ifty thousand pesos (P50,000.00) as actual and moral damages." Time and again, we have reminded lower courts that indemnity is different from other damages. Civil indemnity is automatically granted to the offended party or his/her heirs in case of the former's death, without need of further evidence other than the fact of the commission of the crime and the appellant's culpability therefor. 63 Actual or moral damages may be additionally granted upon sufficient proof that the private complainant is legally entitled thereto. Exemplary damages may also be awarded if the crime was committed with one or more aggravating circumstances duly proven. 64 In accordance with prevailing jurisprudence, civil indemnity in the amount of P50,000 should be awarded to the heirs of Arola Dilangalen. Said victim's mother also satisfactorily established the family's moral sufferings due to the violent death of her son. We find the grant of P25,000 as and for moral damages justified. Her claim for actual damages in the amount of P70,000 is, however, not backed by evidence like official receipts. The other victim, Mohammad Managuili, lengthily testified on the incidents before, during and after the assault on him and Arola, but he failed to offer any proof of the actual damages and/or moral sufferings he may have incurred as a result thereof. There being no evidence to serve as our basis, we cannot determine whether he is entitled to any damages and, if so, how much. Thus, we cannot award him any. WHEREFORE, premises considered, the assailed Decision is hereby MODIFIED. Appellants Gerry Sumalpong and Melchor Fernando are found GUILTY of: 1. murder for which they are each SENTENCED to reclusion perpetua and ORDERED to pay jointly and severally the heirs of Arola Dilangalen civil indemnity in the amount of P50,000 and moral damages of P25,000; and 2. attempted murder for which they are each SENTENCED to four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum. Both sentences shall be served successively. Costs against appellants. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and Martinez, JJ., concur.

The court a quo, after discussing the attendance of treachery, merely enumerated the requisites of evident premeditation citing People vs. Muyano, 58 then proceeded to explain its finding of conspiracy. No ratiocination was made on how it came to appreciate premeditacion conocida under the circumstances of the case. An examination of the records indeed reveals the lack of evidence showing its presence. For evident premeditation to aggravate a crime, there must be proof, as clear as the evidence of the crime itself, of the following elements: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that he clung to his determination; and (3) sufficient lapse of time, between determination and execution, to allow himself to reflect upon the consequences of his act. 59 The solicitor general correctly observed that these requisites were not duly established by the prosecution. 60 Absent any clear and convincing evidence establishing the presence of evident premeditation or other aggravating or mitigating circumstances, the penalty imposable for the murder of Arola Dilangalen is reclusion perpetua. As aptly stated by the solicitor general: Article 63, paragraph 2 of the Revised Penal Code provides that when there are neither mitigating nor aggravating circumstances in the commission of the deed the lesser penalty shall be applied. Under Section 6 of R.A. 7659, the penalty for [m]urder is reclusion perpetua to death: Hence, the lesser penalty of Reclusion Perpetua should be applied on appellants for the crime of [m]urder. 61 The penalty for the attempt on the life of Mohammad Managuili, on the other hand, is prision mayor in its medium period. 62 Applying the Indeterminate Sentence Law, the penalty imposable against appellants is four (4) years and two (2) months of prision correccional medium, as minimum, to ten (10) years of prision mayor medium, as maximum. Damages

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 153875 August 16, 2006 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ROLANDO DAGANI y REYES and OTELLO SANTIANO Y LEONIDA, Accused-Appellants. DECISION AUSTRIA-MARTINEZ, J.: For review before the Court is the Decision dated June 20, 20021 of the Court of Appeals (CA) which affirmed the Decision of the Regional Trial Court of the City of Manila, Branch 12 (RTC), dated February 18, 1993, in Criminal Case No. 89-77467, finding the accused-appellants Otello Santiano y Leonida (Santiano) and Rolando Dagani y Reyes (Dagani) guilty of the crime of Murder. The accusatory portion of the Information reads: That on or about September 11, 1989, in the City of Manila, Philippines, the said accused conspiring and confederating together and mutually helping each other did then and there, willfully, unlawfully and feloniously, with intent to kill, evident premeditation and treachery, attack, assault and use of personal violence upon one ERNESTO JAVIER Y FELIX by then and there shooting him with a .38 caliber revolver, thereby inflicting upon the said ERNESTO JAVIER Y FELIX mortal gunshot wounds which were the direct and immediate cause of his death thereafter. CONTRARY TO LAW.2 Upon arraignment, the appellants pleaded not guilty. Trial ensued where the prosecution adduced evidence to establish the following: At about 4:45 in the afternoon of September 11, 1989, a group composed of Ernesto Javier (Javier), Lincoln Miran (Miran), and two other individuals had been drinking at the canteen located inside the compound of the Philippine National Railways (PNR) along C.M. Recto Avenue, Tondo, Manila. All of a sudden, appellants, who were security officers of the PNR and covered by the Civil Service Rules and Regulations, entered the canteen and approached the group. Appellant Dagani shoved Miran, causing the latter to fall from his chair. Dagani then held Javier while Santiano shot Javier twice at his left side, killing the latter. The defense proceeded to prove their version of the facts: Appellants testified that they were ordered by their desk officer to investigate a commotion at the canteen. Upon reaching the place, Santiano ordered his co-accused, Dagani, to enter, while the former waited outside. Dagani approached Javier who had been striking a bottle of beer on the table. Javier then pulled out a .22 caliber revolver and attempted to fire at Dagani, but the gun failed to go off. Then suddenly, while outside the canteen, Santiano heard gunfire and, from his vantage point, he saw Javier and Dagani grappling for a .22 caliber gun which belonged to Javier. During the course of the struggle, the gun went off, forcing Santiano to fire a warning shot. He heard Javiers gun fire again, so he decided to

rush into the canteen. Santiano then shot Javier from a distance of less than four meters. Appellants invoked the justifying circumstances of self-defense and lawful performance of official duty as PNR security officers. They also argued that the prosecution failed to establish treachery and conspiracy. The RTC rendered its Decision, the dispositive portion of which reads: WHEREFORE, finding both accused Otello Santiano y Leonida and Rolando Dagani y Reyes guilty beyond reasonable doubt of the crime of Murder defined and punished under Art. 248, RPC, with the presence of the mitigating circumstance of voluntary surrender and granting them the benefit of [the] Indeterminate Sentence Law, both accused are hereby sentenced to each suffer an Indeterminate prison term of TEN (10) YEARS and ONE (1) DAY of prision mayor as minimum, to EIGHTEEN (18) YEARS and ONE (1) DAY of reclusion temporal x x x. Both accused are hereby ordered to indemnify the heirs of the victim the sum of P50,000.00 as death indemnity, the sum of P31,845.00 as funeral and burial expenses, the sum of P30,000.00 as and for [sic] attorneys fees and the further sum of P1,000.00 per appearance of counsel. Both accused shall be credited with the full extent of their preventive imprisonment. Both accused are hereby committed to the Director, National Penitentiary, Muntinlupa, Metro Manila for service of Sentence. SO ORDERED.3 In brief, the RTC held that appellants failed to prove that Javier attempted to squeeze the trigger of the .22 caliber gun when he pointed it at Dagani; that during the course of the struggle for the possession of the .22 caliber gun, the danger to the life of the accused ceased to be imminent; that in grappling for the weapon, Dagani "controlled" the hands of Javier and pushed them away from his body; that the appellants failed to produce the two empty shells as physical evidence of the gunfire allegedly caused by Javier; that no points of entry or bullet markings on the walls of the canteen were shown; that, in light of these findings, no unlawful aggression was present on the part of the victim; that the appellants failed to prove that they were on official duty at the time of the incidence; that, since it was not established that Javier actually fired his gun, the injury inflicted upon him cannot be regarded as a necessary consequence of the due performance of an official duty; that the appellants were acting in conspiracy; that the qualifying circumstance of treachery attended the killing, considering that Javier had been shot while his hands were being held by Dagani and as his body was out of balance and about to fall; and that the mitigating circumstance of voluntary surrender should be appreciated in favor of the appellants. The appellants appealed to the CA and assigned the following errors: I THE LOWER COURT GRAVELY ERRED IN NOT APPRECIATING SELF DEFENSE ON THE PART OF THE ACCUSED. II THE LOWER COURT ERRED WHEN IT FAILED TO CONSIDER THE FACT THAT THE ACCUSED-APPELLANTS WERE IN LAWFUL PERFORMANCE OF AN OFFICIAL DUTY.

III THE LOWER COURT GRAVELY AND SERIOUSLY ERRED IN RULING THAT THERE WAS CONSPIRACY. IV THE LOWER COURT GRAVELY ERRED IN FINDING THAT THE PROSECUTION WAS ABLE TO ESTABLISH BEYOND REASONABLE DOUBT THAT THE ACCUSED ARE GUILTY OF MURDER.4 The CA rendered its Decision, the dispositive portion of which states: WHEREFORE, the appealed judgment of conviction is MODIFIED. Appellants are hereby sentenced to reclusion perpetua. The award for attorneys fees and appearance fees for counsel are hereby deleted. In all the other aspects, the appealed decision is maintained. Let the entire records of the case be elevated to the Supreme Court for the mandated review. SO ORDERED.5 The CA affirmed the findings of fact as well as the salient portions of the RTC Decision, but deleted the award of attorneys fees and the per appearance fees of counsel since, the CA reasoned, the instant case is criminal in nature which is under the control of the public prosecutor, and, additionally, the RTC failed to justify this award in the body of its Decision. And last, the CA found that the RTC erroneously applied the Indeterminate Sentence Law since the penalty for Murder, at the time of the incident, was reclusion perpetua which is an indivisible penalty to be imposed in its entirety, regardless of the attending mitigating circumstance of voluntary surrender. Appellants are now before this Court submitting for resolution the same matters argued before the CA. Through their Manifestation dated February 11, 2003,6 appellants prayed to dispense with the filing of additional briefs. As of date, the records show that despite the efforts exerted by the surety and the responsible law officers to locate the appellants, the latter could not be found and have jumped bail.7 The appeal is partly meritorious. Appellants argue that the courts a quo misappreciated the facts and erred in finding that there was no unlawful aggression on the part of the victim. They insist that the victim, Javier, had been armed with a revolver at the time he was struggling with appellant Dagani; that the former "could have easily killed the latter;" that, given the fact that Javier had been drinking, "it is quite probable for Javier to act harshly and aggressively towards peace officers such as the accused;"8 and that Javier actually fired three shots from his .22 caliber gun.9 We are not convinced. When self-defense is invoked, the burden of evidence shifts to the accused to show that the killing was legally justified. Having owned the killing of the victim, the accused should be able to prove to the satisfaction of the Court the elements of selfdefense in order to avail of this extenuating circumstance. He must discharge this burden by clear and convincing evidence. When successful, an otherwise felonious deed would be excused, mainly predicated on the lack of criminal intent of the accused. Self-defense requires that there be (1) an unlawful aggression by the person

injured or killed by the offender, (2) reasonable necessity of the means employed to prevent or repel that unlawful aggression, and (3) lack of sufficient provocation on the part of the person defending himself. All these conditions must concur.10 Unlawful aggression, a primordial element of self-defense, would presuppose an actual, sudden and unexpected attack or imminent danger on the life and limb of a person not a mere threatening or intimidating attitude11 but most importantly, at the time the defensive action was taken against the aggressor.12 To invoke selfdefense successfully, there must have been an unlawful and unprovoked attack that endangered the life of the accused, who was then forced to inflict severe wounds upon the assailant by employing reasonable means to resist the attack.13 In the instant case, the assertions that it was "quite probable" that Javier, during the course of the struggle for the firearm, "could have easily killed" the appellants are uncertain and speculative. There is aggression in contemplation of the law only when the one attacked faces real and immediate threat to ones life. The peril sought to be avoided must be imminent and actual, not just speculative.14 To sum up the matter, we quote the findings of the CA: The defense was unable to prove that there was unlawful aggression on the part of Javier. They were unable to present evidence that the victim actually fired his gun. No spent shells from the .22 caliber pistol were found and no bullets were recovered from the scene of the incident. Javier also tested negative for gunpowder residue. Moreover, the trial court found appellant Daganis account of the incident to be incredible and self-serving. In sum, the defense presented a bare claim of selfdefense without any proof of the existence of its requisites.15 Even if it were established that Javier fired his gun as the appellants so insist, the imminence of the danger to their lives had already ceased the moment Dagani held down the victim and grappled for the gun with the latter. After the victim had been thrown off-balance, there was no longer any unlawful aggression that would have necessitated the act of killing.16 When an unlawful aggression that has begun no longer exists, the one who resorts to self-defense has no right to kill or even to wound the former aggressor.17 When Javier had been caught in the struggle for the possession of the gun with appellant Dagani, the grave peril envisaged by appellant Santiano, which impelled him to fire at the victim, had then ceased to a reasonable extent,18 and undoubtedly, Santiano went beyond the call of selfpreservation when he proceeded to inflict the excessive and fatal injuries on Javier, even when the alleged unlawful aggression had already ceased.19 The second element of self-defense demands that the means employed to neutralize the unlawful aggression are reasonable and necessary. It is settled that reasonable necessity of the means employed does not imply material commensurability between the means of attack and defense. What the law requires is rational equivalence.20 The circumstances in their entirety which surround the grappling of the firearm by Dagani and Javier, such as the nature and number of gunshot wounds sustained by the victim21 which amounted to two fatal wounds,22 that Dagani was able to restrain the hands of Javier and push them away from his body,23 that Dagani was larger than Javier and had finished Special Weapons and Tactics (SWAT) hand-to-hand combat training,24 and Javier,

as admitted by the appellants, was inebriated at the time of the incident,25 do not justify appellant Santianos act of fatally shooting the victim twice.26 All things considered, the appellants plea of self-defense is not corroborated by competent evidence. The plea of self-defense cannot be justifiably entertained where it is not only uncorroborated by any separate competent evidence but is in itself extremely doubtful.27 Whether the accused acted in self-defense is a question of fact. Like alibi, the affirmative defense of self-defense is inherently weak because, as experience has demonstrated, it is easy to fabricate and difficult to disprove.28 This Court, therefore, finds no reversible error on the part of the courts a quo in rejecting the claim of self-defense. Appellants set up the defense that they were in the lawful performance of their official duties. They specifically aver that they had been ordered by their desk officer to proceed to the canteen in response to a telephone call stating that there was a group "creating trouble;" that they were in the call of duty and exercising their functions and responsibilities as members of the PNR Civil Security Office to preserve peace and order and protect the lives and property in the PNR Compound;29 and that, invoking jurisprudence, as security officers in the performance of duty, like the police, they must stand their ground and overcome the opponent, and the force that may be exerted must differ from that which ordinarily may be offered in self-defense.30 Article 11 of the Revised Penal Code provides that a person who acts in the fulfillment of a duty or in the lawful exercise of a right or office does not incur any criminal liability. Two requisites must concur before this defense can prosper: 1) the accused must have acted in the performance of a duty or in the lawful exercise of a right or office; and 2) the injury caused or the offense committed should have been the necessary consequence of such lawful exercise.31 These requisites are absent in the instant case. As found by the CA: The defense failed to prove that the security officers were in fact on duty at the time they were at the canteen. The trial court gave weight to the fact that the appellants were unable to submit their daily time records to show that they were on duty at the time. Appellants assertion that they were ordered to go on 24-hour duty was belied by PNR Security Investigator Rolando Marinays testimony that PNR security officers work in two 12-hour shifts, from 7:00 a.m. to 7:00 p.m. and from 7:00 p.m. to 7:00 a.m. Moreover, since it was not established that Javier fired his gun, the injury inflicted upon him cannot be regarded as a necessary consequence of appellants due performance of an official duty.32 As stated, considering that the imminent or actual danger to the life of the appellants had been neutralized when Dagani grappled with Javier and restrained his hands; that Javier had been thrown off-balance; that Dagani had been specially trained for these purposes; and that Javier had been drinking immediately prior to the scuffle, this Court holds that the fatal injuries that appellant Santiano inflicted on the victim cannot be deemed to be necessary consequences of the performance of his duty as a PNR security officer.33 While it is recognized that police officers if indeed the

appellants can be likened to them must stand their ground and overwhelm their opponents, in People v. Ulep,34 this Court counseled: The right to kill an offender is not absolute, and may be used only as a last resort, and under circumstances indicating that the offender cannot otherwise be taken without bloodshed. The law does not clothe police officers with authority to arbitrarily judge the necessity to kill. It may be true that police officers sometimes find themselves in a dilemma when pressured by a situation where an immediate and decisive, but legal, action is needed. However, it must be stressed that the judgment and discretion of police officers in the performance of their duties must be exercised neither capriciously nor oppressively, but within reasonable limits. In the absence of a clear and legal provision to the contrary, they must act in conformity with the dictates of a sound discretion, and within the spirit and purpose of the law. We cannot countenance trigger-happy law enforcement officers who indiscriminately employ force and violence upon the persons they are apprehending. They must always bear in mind that although they are dealing with criminal elements against whom society must be protected, these criminals are also human beings with human rights.35 But this Court cannot agree with the findings of the courts a quo that the appellants were in conspiracy. The RTC simply held: The Information cited conspiracy of the accused. Since it can also be committed thru simultaneous/concerted action and considering that Javier was shot by Santiano while being held by Dagani, under jurisprudence, conspiracy is present.36 The tenor of the factual findings of the CA is equally unsatisfactory: Moreover, the facts show that Javier was shot by appellant Santiano as he was being subdued by appellant Dagani. The trial court held that the manner of the attack was indicative of a joint purpose and design by the appellants.37 Courts must judge the guilt or innocence of the accused based on facts and not on mere conjectures, presumptions, or suspicions.38 Other than the plain fact that the victim had been shot by one of the accused while being held by a co-accused, there is no other evidence that the appellants were animated by the same purpose or were moved by a previous common accord. It follows that the liability of the accused must be determined on an individual basis. While no formal agreement is necessary to establish conspiracy because conspiracy may be inferred from the circumstances attending the commission of the crime, yet, conspiracy must be established by clear and convincing evidence.39 This Court has held that even if all the malefactors joined in the killing, such circumstance alone does not satisfy the requirement of conspiracy because the rule is that neither joint nor simultaneous action is per se sufficient proof of conspiracy. Conspiracy must be shown to exist as clearly and convincingly as the commission of the offense itself.40 Thus, even assuming that Javier was simultaneously attacked, this does not prove conspiracy. No evidence was presented to show that the appellants planned to kill Javier or that Daganis overt acts facilitated that alleged plan. The prosecution did not establish that the act of Dagani in trying to wrestle the gun from Javier and in the process, held the latters hands, was for the purpose of enabling Santiano to shoot at Javier. The prosecution had the burden to show Daganis intentional participation to the

furtherance of a common design and purpose41 or that his action was all part of a scheme to kill Javier. That Dagani did not expect Santiano to shoot the victim is established when Santiano testified that Dagani "seem[ed] to be shocked, he was standing and looking at the victim" as Javier gradually fell to the ground.42 And since Daganis conviction can only be sustained if the crime had been carried out through a conspiracy duly proven, in view of the failure of the prosecution to discharge that burden, this Court is constrained to acquit him. And this Court cannot say that treachery attended the attack. The RTC declared: [T]he Court believes that Javier was shot while his body was out-balanced and about to fall to the right side and while his hands were being held by Dagani. Javier, therefore, was shot at when he has no means to defend himself, hence, the killing was attended by the qualifying circumstance of treachery. which the CA affirmed as follows: The findings of the court a quo clearly showed that Javier was being held down and could not effectively use his weapon. As such, the trial court held that Javier could not be considered to be an armed man as he was being held down and was virtually helpless. It has been held that when an assault is made with a deadly weapon upon an unarmed and unsuspecting victim who [was] given no immediate provocation for the attack and under conditions which made it impossible for him to evade the attack, flee or make [a] defense, the act is properly qualified as treachery, and the homicide resulting therefrom is classified as murder.44 x x x 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. Treachery is present when two conditions concur, namely: (1) that the means, methods and forms of execution employed gave the person attacked no opportunity to defend himself or to retaliate; and (2) that such means, methods and forms of execution were deliberately and consciously adopted by the accused without danger to his person.45 This Court has held that 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.46 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.47 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.48 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.49 Treachery is never presumed. Like the rules on conspiracy, it is required that the manner of attack must be shown to have been attended by treachery as conclusively as the crime itself.50

The prosecution failed to convincingly prove that the assault by the appellants had been deliberately adopted as a mode of attack intended to insure the killing of Javier and without the latter having the opportunity to defend himself. Other than the bare fact that Santiano shot Javier while the latter had been struggling with Dagani over the possession of the .22 caliber gun, no other fact had been adduced to show that the appellants consciously planned or predetermined the methods to insure the commission of the crime, nor had the risk of the victim to retaliate been eliminated during the course of the struggle over the weapon, as the latter, though struggling, had not been completely subdued. As already stated, this Court must emphasize that the mere suddenness of the attack, or the vulnerable position of the victim at the time of the attack, or yet even the fact that the victim was unarmed, do not by themselves make the attack treacherous.51 It must be shown beyond reasonable doubt that the means employed gave the victim no opportunity to defend himself or retaliate, and that such means had been deliberately or consciously adopted without danger to the life of the accused.52 For these reasons, the Court is inclined to look upon the helpless position of Javier as merely incidental to the attack, and that the decision to shoot Javier was made in an instant.53 Considering the rule that treachery cannot be inferred but must be proved as fully and convincingly as the crime itself, any doubt as to its existence must be resolved in favor of Santiano. Accordingly, for failure of the prosecution to prove treachery to qualify the killing to Murder, appellant Santiano may only be convicted of Homicide.54 The penalty, therefore, under Article 249 of the Revised Penal Code, as amended, is reclusion temporal. The Office of the Solicitor General is correct in that the courts a quo failed to consider the aggravating circumstance of taking advantage of official position under Article 14 (1) of the Revised Penal Code, since the accused, a PNR security officer covered by the Civil Service, committed the crime with the aid of a gun he had been authorized to carry as such.55 Considering that the mitigating circumstance of voluntary surrender, as duly appreciated by the courts a quo, shall be offset against the aggravating circumstance of taking advantage of official position, the penalty should be imposed in its medium period, pursuant to Article 64 (4) of the aforesaid Code. Applying the Indeterminate Sentence Law, the sentence of appellant Santiano will consist of a minimum that is anywhere within the full range of prision mayor, and a maximum which is anywhere within reclusion temporal in its medium period. This Court hereby fixes it to be from eight (8) years and one (1) day of prision mayor as minimum, to fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal, as maximum. As to the award of damages, prevailing jurisprudence entitles the heirs of the deceased to the amount of P50,000.00 as civil indemnity for the death of the victim without need of any evidence or proof of damages.56 The CA erred in deleting the attorneys fees and per appearance fees for lack of factual basis. Although the CA is correct in noting that the RTC failed to justify these awards in the body of its Decision, this appeal opens the entire case for review and,

accordingly, the records show that the foregoing amounts had been stipulated by the parties,57 thereby dispensing with the need to prove the same.58 As to moral damages, however, the widow of the victim, Erlinda Javier, is not entitled to the same. She did not testify on any mental anguish or emotional distress which she suffered as a result of her husbands death. No other heirs of Javier testified in the same manner.59 Inasmuch as the aggravating circumstance of taking advantage of official position attended the killing, the Court awards exemplary damages in the amount of P25,000.00 in accordance with Articles 2230 and 2234 of the Civil Code and prevailing jurisprudence.60 WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 15304 dated June 20, 2002 is MODIFIED. Appellant Otello Santiano y Leonida is found GUILTY beyond reasonable doubt of Homicide and is sentenced to suffer the penalty of an indeterminate sentence from eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal as maximum. Appellant Santiano is further ordered to pay the heirs of the victim the amounts of P50,000.00 as death indemnity, P31,845.00 as funeral and burial expenses, P25,000.00 as exemplary damages, P30,000.00 as attorneys fees and P1,000.00 per appearance of counsel. Appellant Santiano shall be credited with the full extent of his preventive imprisonment. Appellant Rolando Dagani y Reyes is hereby ACQUITTED. SO ORDERED. MA. ALICIA AUSTRIA-MARTINEZ Associate Justice WE CONCUR: ARTEMIO V. PANGANIBAN Chief Justice Chairperson CONSUELO YNARES-SANTIAGO ROMEO J. CALLEJO, SR. Associate Justice Associate Justice MINITA V. CHICO-NAZARIO Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ARTEMIO V. PANGANIBAN Chief Justice

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. 134823-25 January 14, 2003 PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO HAMTON a.k.a. "BOY NEGRO," ANTONIO RAMIREZ alias "TONG" or "CHITO," accused, ARTHUR PANGILINAN y DE GUZMAN a.k.a. "TORING," ARNOLD LOPEZ y SERRANO a.k.a. "ADAN MANALO," REYNALDO YAMBOT y MASAGAYA, and JUN NOTARTE (at large), accused, ARTHUR PANGILINAN y DE GUZMAN a.k.a. "TORING," ARNOLD LOPEZ y SERRANO a.k.a. "ADAN MANALO" and REYNALDO YAMBOT y MASAGAYA, appellants. PER CURIAM: Before this Court for automatic review is the Joint Decision of the Regional Trial Court of Pasig City, Branch 70, penned by Judge Pablito M. Rojas in Criminal Cases Nos. 105326, 106115 and 106116, finding Arthur Pangilinan, Arnold Lopez and Reynaldo Yambot guilty beyond reasonable doubt of the crimes of kidnapping for ransom and illegal possession of firearms and imposing upon each of them the supreme penalty of death and a prison term of six (6) years and one (1) day to eight (8) years. Antonio Hamton, who was found guilty of robbery and sentenced to an "indeterminate penalty of from four (4) years of prision correccional to eight (8) years of prision mayor" in Criminal Case No. 105326, filed an appeal with this Court, but later withdrew the same. 1 The Solicitor General narrates the antecedent facts of the case as follows: "Teofilo Garcia, and his wife, Leonida, were the sole distributors of the Singer Sewing Machines under the business name 'Garmer Industrial Sewing Machines'. On March 8, 1994, around eleven o'clock in the morning, two armed men, later identified as Jun Notarte and Reynaldo Yambot, entered the Garcias' office and showroom at 322 Shaw Boulevard, Mandaluyong City and announced a hold-up. After emptying Teofilo's drawer of Two Thousand Pesos (P2,000.00) in cash, they took him with them outside to a waiting light gray Mitsubishi Lancer. Inside the car were two other men, later identified as herein appellant Arnold Lopez and Arthur Pangilinan. Teofilo was shoved into the backseat of the car and blindfolded with black sunglasses covered with adhesive tapes. One of the men told him, 'Pera lang ang kailangan namin sa iyo'. His abductors then divested him of his gold ring worth Two Hundred Thousand Pesos (P200,000.00), his gold bracelet worth Fifty Thousand Pesos (P50,000.00), his gold necklace worth Fifty Thousand Pesos (P50,000.00), and his wallet containing, among others, Two Thousand Three Hundred Pesos (P2,300.00) in cash. "About the time Teofilo was being led out of the office, Leonida arrived. Seeing her husband's plight, she immediately approached the Mitsubishi Lancer and asked the men inside why they were taking her husband. In response, appellant hit her on the nose with a gun and pushed her away. The Mitsubishi Lancer then sped away. "After traveling for about two hours, the Mitsubishi Lancer stopped. Teofilo's abductors transferred him to a trimobile where, accompanied by appellant, he traveled for thirty minutes more before finally stopping. Teofilo was brought to a house where he was confined in a room with no windows. To prevent him from escaping, his left wrist was chained to an iron grill. Three or four persons guarded him.

"On March 10, 1994, around eleven o'clock in the morning, appellant, who identified himself as 'Adan Manalo,' called up Leonida, telling her to prepare the amount of Ten Million Pesos (P10,000,000.00) as ransom money for her husband's release. When Leonida pleaded for the amount to be lowered since she could not afford it, appellant put the phone down. "On March 12, 1994, appellant called up Leonida to inquire if she had already raised the ransom amount. Leonida replied that she had raised only Six Hundred Thousand Pesos (P600,000.00) and would be needing more time to raise the rest of the amount. "Appellant called again around twelve noon of March 14, 1994. Asked how much money she had already raised, Leonida answered that she was still trying to raise the needed amount. She also requested appellant to get for her the key to their office vault from her husband, so that she could get the money inside and add it to the money to be paid as ransom. "Accordingly, appellant, on March 15, 1994, told Teofilo to give him the key to their office vault and to write a note for his family so that they would know that he was still alive. Teofilo did as he was instructed. "Around eight o'clock in the morning of March 16, 1994, appellant called up Leonida to inform her that the key to their office vault as well as a note from her husband was ready for her pick-up at Andok's Litson located at EDSA corner Estrella Street. By ten o'clock of the same morning, Leonida was in possession of the key and the note. She was able to confirm that the note was in her husband's handwriting. When appellant called her again later that day, Leonida informed him that she had gotten the key and the note, and that she had raised One Million Pesos (P1,000,000.00) already. Unimpressed, appellant told her that this was not enough and that he would call her again the next day. "True to his word, appellant called around noontime the following day. Informed by Leonida that she now had One Million Two Hundred Thousand Pesos (P1,200,000.00), appellant seemed finally satisfied. He then gave Leonida instructions for the pay-off. At a little before four o'clock that afternoon, she should be at the Magallanes flyover and open the hood of her car to make it appear that it developed engine trouble. Appellant would then drive by and stop his car beside hers. After he identifies himself as 'Adan,' Leonida should immediately hand over the ransom money to him. "All this time, Leonida had been coordinating with the Task Force Habagat of the Presidential AntiCrime Commission (PACC). Alerted of these latest developments, Col. Michael Ray Aquino, Chief of Special Operations, PACC, planned for the delivery of the ransom money and Teofilo's rescue. Eight teams were formed to monitor the pay-off and conduct rescue operations. The ransom money was placed in a light blue Dunlop bag (Exhibit G) and Leonida was instructed to wear a green dress for easy identification at the pay-off site. "About 3:45 in the afternoon of the same day, Leonida, accompanied by her driver, arrived at the pay-off site on board her Pajero. Pursuant to appellant's instructions, Leonida's driver opened the hood of the Pajero. A red Toyota Corolla with Plate No. PFW 688 then approached and stopped just beside the Pajero. Leonida saw her husband seated between two men at the back of the red car. Meanwhile, appellant, who was seated in front at the passenger side, got down from the car. After identifying himself as 'Adan,' Leonida gave the Dunlop bag containing the ransom money to him. The Toyota Corolla then sped away. "Inside the Toyota Corolla, appellant gave Teofilo Three Hundred Pesos (P300.00) for taxi, assuring him that they would drop him off a short distance away. Before they could do so, however, they noticed a speeding white Nissan Sentra behind them. Appellant warned his companions, 'Puwesto kayo, delikado tayo mga kasama, alert kayo, puwesto kayo'. Without stopping to release Teofilo anymore, the Toyota Corolla raced along EDSA towards Cubao, with the Nissan Sentra in hot pursuit. The chase continued until the Toyota Corolla stopped near the intersection of Guadix Drive and ADB Avenue. Using an armalite, Jun Notarte, the driver of the Toyota Corolla, opened fire at the Nissan Sentra, shattering its windshield. Col. Raymundo Padua and his team members,

the occupants of the Nissan Sentra, returned fire. During the exchange of gunfire, Jun Notarte managed to escape. However, his companions, namely appellant, Arthur Pangilinan, and Reynaldo Yambot, were not as lucky. After about ten minutes of intermittent firing, they were finally subdued and taken into custody. Teofilo was successfully rescued, shaken but unharmed. "Among the items recovered from Teofilo's kidnappers were the following: the Dunlop bag containing the ransom money in the amount of One Million Two Hundred Thousand Pesos (P1,200,000.00); additional cash in the amount of Thirty Two Thousand Six Hundred Forty Seven Pesos (P32,647.00); an M-16 armalite rifle with Serial No. 164881 (Exhibit CC); and a .45-caliber pistol with Serial No. 1163568 (Exhibit A). Subsequent verification revealed that the M-16 armalite rifle and the .45-caliber pistol were not registered with the Firearms and Explosives Office, Camp Crame, Quezon City, and that no license to possess these firearms had ever been issued in the names of any of Teofilo's kidnappers. "Separately apprehended in connection with his kidnapping incident was Antonio Hamton. Having somehow learned about Teofilo's abduction, Antonio, at the same time that appellant was negotiating with [Leonida] for the ransom money, was also calling up Leonida, pretending to be her husband's kidnapper. Antonio's ruse was eventually discovered, but not before he was already able to extort Fifty Thousand Pesos (P50,000.00) from Leonida." 2 An Information, docketed as Criminal Case No. 106114, was filed on April 14, 1994. It charged appellants in this manner: "That [on] or about March 8, 1994 at about 11:00 o'clock in the morning at Shaw Boulevard, corner Aquino Lane in Mandaluyong City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused being all private persons conspiring, confederating and mutually helping/aiding each other and by means of force, threats or intimidation and with the use of arms and vehicles, for the purpose of demanding money or ransom, did then and there willfully, unlawfully. and feloniously abduct and kidnap TEOFILO M. GARCIA while at his office; and that once in their physical custody and control detain and deprive him of his liberty against his will, and demand TEN (P10,000,000) Million from his wife Leonida Garcia, in exchange for her husband's life, safety and freedom, but which amount through sheer patient appeals/negotiation was later reduced to P1.2 Million, which accused finally agreed and accepted which said Mrs. Leonida Garcia, did in fact give, pay and deliver the said amount or ransom money to accused to her loss, damage and prejudice." 3 A second Information, docketed. as Criminal Case No. 106116, was filed against appellants thus: "That, on or about March 8 & 17, 1994 in the City of Mandaluyong, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in their possession, custody and control, a Caliber 45 Pistol, bearing Serial No. SN-1163568, and one (1) M-16 Rifle with Serial No. RP 164881, without first having secured the necessary license and/or permit, from the corresponding office/agency of government." 4 During their arraignment on May 2, 1994, appellants, assisted by their respective counsels, pleaded not guilty to the twin charges of kidnapping for ransom and illegal possession of firearms. 5 After a joint trial, they were found guilty via the automatically appealed Decision, which reads in part: "WHEREFORE, the Court hereby finds accused Arthur Pangilinan y de Guzman, a.k.a. 'Toring'; Arnold Lopez y Serrano, a.k.a. 'Adan Manalo'; and Reynaldo Yambot y Masagaya, GUILTY beyond reasonable doubt of the offenses of Kidnapping for ransom and serious illegal detention under Article 267 of the Revised Penal Code as charged in Criminal Case No. 106115 and of the offense of Illegal Possession of Firearms as charged in Criminal Case No. 106116. For the offense of kidnapping for ransom and serious illegal detention, said accused are hereby meted out the death penalty. For the offense of Illegal Possession of Firearms, said accused are hereby sentenced to

suffer the penalty of six years and one day to eight years and to pay a fine of THIRTY THOUSAND PESOS (PHP 30,000.00) with subsidiary imprisonment in case of insolvency. "Accused Pangilinan, Lopez and Yambot are further ordered to return to the private complainant, Teofilo Garcia, the sum of FOUR THOUSAND THREE HUNDRED PESOS (PHP 4,300.00) representing the total amount of cash taken from the latter's office and his person during the abduction, as well as to return or restore to said private complainant the gold bracelet and the gold necklace or if the same is no longer possible, to pay the value of the same which is PHP 50,000.00 each. In addition, said accused are hereby ordered to indemnify, in solidum, the private complainant, Teofilo Garcia, the amount of TWO MILLION PESOS (PHP 2,000,000.00) and to the wife of the complainant, Leonida Garcia, the amount of ONE MILLION PESOS (PHP 1,000,000.00), by way of moral damages." 6 Appellants submitted individual appeal briefs assailing the RTC Decision. They aver that the trial court failed to establish clearly that they had all committed conspiracy to commit kidnapping for ransom. The lower court should have imposed individual penalties upon them depending on their degree of participation in the crime. Appellants also question their conviction for illegal possession of firearms, arguing that the prosecution failed to produce sufficient evidence showing their physical or constructive possession of the subject firearms. Further, they contend that their conviction for the said offense cannot be made on the basis of the testimony of a prosecution witness of questionable credibility and competence. Specifically, appellant Reynaldo Yambot assigns the following errors: "I THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT REYNALDO YAMBOT AS CO-CONSPIRATOR IN COMMITTING THE OFFENSE OF KIDNAPPING FOR RANSOM. "II THE TRIAL COURT ERRED IN FINDING THE ACCUSED REYNALDO YAMBOT GUILTY BEYOND REASONABLE DOUBT OF ILLEGAL POSSESSION OF FIREARMS DESPITE THE FACT THAT THE WITNESS FOR THE PROSECUTION WAS NOT CREDIBLE ENOUGH TO TESTIFY." 7 This assignment of errors has been adopted by appellant Arnold Lopez with the following addition: "THE TRIAL COURT ERRED IN FINDING THE ACCUSED ARNOLD LOPEZ GUILTY BEYOND REASONABLE DOUBT OF THE OFFENSE CHARGED DESPITE THE FACT THAT HE WAS NOT SUFFICIENTLY REPRESENTED DURING THE PRESENTATION OF CO-ACCUSED ARTHUR PANGILINAN AS HOSTILE WITNESS." 8 On the other hand, appellant Arthur Pangilinan ascribes the following errors to the trial court: "3.1 THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE APPELLANT AS A CONSPIRATOR IN THE OFFENSE OF KIDNAPPING FOR RANSOM AND SERIOUS ILLEGAL DETENTION. "3.2 THE TRIAL COURT GRAVELY ERRED IN FINDING THE APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ILLEGAL POSSESSION OF FIREARMS DESPITE THE ABSENCE OF EVIDENCE THAT HE WAS IN PHYSICAL OR CONSTRUCTIVE POSSESSION OF ANY OF THE SUBJECT FIREARMS AND THAT HE HAD ANIMUS POSSIDENDI AS REGARDS THESE FIREARMS."9 After a careful review of the records and the arguments of both the prosecution and the defense, this Court agrees with the trial court that all three appellants are guilty of kidnapping for ransom, but not of illegal possession of firearm. Appellants all rely on the defense of denial and alibi. They point to Jun Notarte, who is still at large, as the mastermind of the kidnapping. They maintain that they merely accepted his offer of jobs with higher pay, and that they were not privy to his plans to kidnap Garcia. Plainly, they want this Court

to believe that they were simply in the wrong place at the wrong time with the wrong companion and for the wrong reason. Appellant Arnold Lopez claims that Notarte offered him a job to train as a soldier, with better pay. 10 He says that because of his meager earnings as a construction worker, he was easily enticed by Notarte's promise. 11 He alleges, however, that he was not present during the abduction of the victim, because he was working in Paraaque, installing doors and windows from March 8 to 15, 1994. 12 It was only because of the job offer that he was present during the pay-off. He argues further that his participation in the kidnapping incident was very minimal, if any, so he could not have been a co-conspirator in the crime. 13 On the other hand, Reynaldo Yambot alleges that Notarte promised to help him apply as a driver of the latter's superior officer. 14 Yambot maintains that, because he was driving his jeepney in Caloocan from March 8 to 16, 1994, 15 he was not present during the abduction of the victim. The only reason he was present during the pay-off was that Notarte had actually engaged him as a driver, but without his knowing anything about the abduction that had already taken place. 16 Finally, Arthur Pangilinan claims that he was offered a job to watch Notarte's car at five hundred pesos a day. 17 He maintains that there were no overt acts that would link him to the kidnapping other than his "being merely an ill-fated passenger of the car used by his co-accused in two occasions, i.e., in kidnapping Mr. Garcia and in receiving the ransom from the victim's wife." 18 Further, his wife was presented in court to corroborate his claim that he had not taken part in the plan to commit the kidnapping. At the outset, we emphasize that the identities of all the accused were adequately established by the clear and convincing testimonies of the victim and his wife. Particularly persuasive was the narration by Garcia of the events that led to his abduction, his captivity, the ransom payment and his eventual release and rescue. He never wavered in his story, even when he was subjected to an exhausting cross-examination by the defense counsels. He testified thus: "JUSTICE CONCEPCION: Q On March 8, 1994 at about 11:00 in the morning do you remember where were you? A Yes, sir. I was in my office at about 11:00 in the morning at Shaw Blvd. Q Were you alone in your office? A I was with my three employees, sir. Q What are their names? A They are Grace Munda, Aurora Mckinley and Dado Mercado, sir. COURT: Q How is he related to your wife? A He is the cousin of my wife, Your Honor. JUSTICE CONCEPCION: Q On that occa[s]ion, do you recall having received a visitor in your office? A Yes, sir. Two men arrived. Q What questions, if any, did they ask you upon entering your showroom? ATTY. LEONARDO: No basis, Your Honor. COURT: He said he had two visitors. Witness may answer. WITNESS A When the two men entered in our office, one pretended to be a customer and the other one approach[ed] my three employees, sir. xxx xxx xxx JUSTICE CONCEPCION: Q Why do you say that one of them pretended to be a customer?

A Because he was the one who asked me about the price of the sewing machine, sir. Q Was there anything unusual that happened afterwards? ATTY. LEONARDO: We will object, Your Honor. The question is leading. COURT: How can it be leading? Objection overruled. Witness may answer. WITNESS: A Yes, there was, sir. JUSTICE CONCEPCION: Q What is it? A The one who pretended as a customer pulled out the gun and pointed it at me and said, 'hold-up', sir. Q What kind of firearm did you see? A It's a 45 caliber, sir. xxx xxx xxx COURT: All right. You said that, there were two male visitors who entered your showroom that day, what was the other one doing? A The other one poked a gun on my three employees, sir. JUSTICE CONCEPCION: Q Can you identify the man who pointed the gun at your three employees if you see him again? A Yes, sir. Q Will you please look around the courtroom and point to the man who pointed a gun at your three employees? COURT: Why don't you ask him the guy who poked the gun at him. JUSTICE CONCEPCION: He was the one who got away, Your Honor. There were four kidnappers, one of them escape. He is at large. COURT: All right. Let him identify. Q Yung nagtutok sa iyo [ng] baril nandito ba? A Wala po. Q Yung nagtutok ng baril sa tatlo nandito ba? A Opo. He is here, your Honor. Q Yung nagtutok ng baril sa tatlong empleyado mo, ituro mo, bumababa ka at ituro mo. INTERPRETER: Witness is pointing to a man whom when asked identify himself as Reynaldo Yambot. JUSTICE CONCEPCION: Q You stated that the man [who] pretended to be a customer poked a gun at you, what did he want? COURT: He already said, 'hold-up.' JUSTICE CONCEPCION: Q What did he do afterwards, if he did anything? A After he said, 'hold-up', he opened the drawer of my table and g[o]t some P2,000.00 cash, sir. Q Having taken the money, what did he do afterwards?

A Then he told me, you go with us, sir. After taking the money he said, 'sama ka sa amin.' Q What was your reaction? A I went along with him, sir. Q Why did you go with him? A I went with him because it was a 'hold-up' and I was afraid so I went with him, sir. Q At the time he made those statements, what was he doing to the gun? A He tucked it in his waist, sir. Q Did you go with him willingly? A Yes, sir. Q Why? A 'Baka patayin po ako kaya sumama ako.' Perhaps they would kill me so I went along with him, sir. Q Where did he take you? A They b[r]ought me outside the door and outside was a car waiting, sir. [A] I am showing you pictures of a car . . . (discontinued) COURT: Excuse me. Why don't you ask him first to describe the car. Q Anong itsura ng kotse? A It was a lancer with a color which looks like a silver green with tinted windows and partially tinted front glass, Your Honor. xxx xxx xxx JUSTICE CONCEPCION: Q How did you enter the vehicle that was waiting for you? A The car was opened by accused Jun Notarte and I was pushed inside, sir. FISCAL VILLA-IGNACIO: Your Honor please, actually the witness said tinuhod meaning a person used his knee to shove him inside the vehicle. It's more of a kick, Your Honor. WITNESS: A The car was opened by accused Ju[n] Notarte and he used his knee to shove me inside, sir. ATTY. DE LEON: We adopt the tagalog translation also, Your Honor. WITNESS: A Tinuhod niya ako papasok sa kotse. JUSTICE CONCEPCION: Q Did you enter the front seat or the back seat? A The back seat, sir. Q Once you were inside the vehicle, will you tell the Court what happened? A I was sand[w]iched by two men, sir. COURT: Q Who was the one to your right? A Arthur Pangilinan was on my right, Your Honor. Q And who was on your left? A Yambot was on my left, Your Honor. JUSTICE. CONCEPCION: Q Is the man whom you mentioned, Arthur Pangilinan, can you identify him? A Yes, sir. Q Is he in the courtroom? A Yes, sir. COURT:

Bumaba ka at ituro nyo po. INTERPRETER: Witness pointing to a man inside the courtroom whom when asked identify himself as Arthur Pangilinan. JUSTICE CONCEPCION: Q After you were seated sandwiched between two men, do you recall if there were any persons seated on the front of the vehicle? A Yes, sir. Q In the driver's seat who was seated? A Ju[n] Notarte was in the driver's seat, sir. Q And on the seat beside the driver? A Beside the driver was Arnold Lopez, sir. Q Can you identify the man whom you said as Arnold Lopez? A Yes, sir. Q Please point to him. FISCAL VILLA-IGNACIO: For the record, Your Honor, witness is stepping down from the witness stand and appearing to [point] to a man whom when asked answered by the name of Arnold Lopez. ATTY. MACATANGAY: For the record, Your Honor, Arnold Lopez is [the] man who is walking with c[r]utches. COURT: Make it of record that the man is using c[r]utches. JUSTICE CONCEPCION: Q After you were seated in the car, will you please state what transpired, if any? A Yung sunglass na sinasabing piring, piniringan po ako rito. xxx xxx xxx Q Did you not ask these men what they wanted from you? A I a[sk]ed them what they want from me, sir. ATTY. MACATANGAY: Very leading, Your Honor. COURT: I will allow that. JUSTICE CONCEPCION: Q And what is the answer, if any? A 'Pera lang ang kailangan namin sa iyo', that was what they told me, sir. Q After you were already in the car, what did you try to do in the car? A None, sir. We were on the road." 19 Thereafter, Garcia further recounted his ordeal, replete with details that he could not have simply concocted. He narrated how he had been brought to a house where he was chained to an iron grill 20 and detained for ten days. 21 His testimony included details of how he had been fed, how he had relieved himself during his detention, and how he had been asked by appellant Lopez to write a letter to his family to assure them that he was still alive. 22 The testimony of the victim regarding the ransom payment was likewise credible and convincing. He detailed the events leading to the pay-off, from the time he was awakened to the time of the actual shoot-out that eventually led to the arrest of appellants. 23 His wife, who was also present during the abduction; corroborated his testimony as follows: "FISCAL DAOSOS: Q Will you tell this Honorable Court, Mrs. Garcia, if on March 8, 1994 you reported for work in your office?

A Yes, I reported for work about 11 o'clock. Q Were you able to reach your office that morning of March 8, 1994? A Yes, sir. Q Do you recall of any unusual incident that took place that morning? A I saw my husband being led by the arm by a man and another man was just behind my husband and closely following. COURT: Q Where were they going? A I saw them going to board a blue grey vehicle. FISCAL DAOSOS: Q Would you know the model or make of the car? A I did not notice but I know it was colored blue grey. Q What else happened when you saw that your husband was being led inside the car? A I saw that my husband as if he was shoved inside (tinuhod). Q Who of the two, if you saw, 'tumuhod sa asawa mo'? A He's a tall man with fair complexion. Q The one who shoved, would you kindly look around if he is in the courtroom? A He is not around. Q What about the other one who closely followed your husband? A He is here. Q Will you kindly go down and identify him by lightly tapping his shoulder? INTERPRETER: The witness pointed to a man inside the courtroom who when asked identified himself as Reynaldo Yambot. [FISCAL DAOSOS:] Q After your husband was shoved inside that grey car, what else happened, if you know? A I alighted from my car and opened the front door of the blue grey vehicle. I saw my husband with a blindfold and a gun pointed to him. Q You said when you opened the car, you saw your husband already wearing a black blindfold sunglass. If you are shown that sunglass or black blindfold would you be able to recognize it? A Yes, sir. Q I'm showing to you a plastic sunglass which was previously marked, Your Honor, as exh. 'C'. Will you kindly go over and tell this Honorable Court what is the relation of that black sunglass to the blindfold you were referring to [a] while ago? A Parang ganito po. Q You also said that someone pointed a gun at your husband. What particular part of the head or the face was the gun pointed? A The gun was pointed to my husband's neck. Q Would you be able to recognize the person who was pointing a gun at your husband? A I would not know who was the person who pointed a gun to my husband. Q What kind of gun was pointed, was it a long firearm or a short firearm? ATTY. LEONARDO: We object to that question, Your Honor. He is suggesting to the witness her answer . . . FISCAL DAOSOS: If she knows. COURT: Q What kind of gun was that? A It was a short gun.

FISCAL DAOSOS: Q If you are shown a gun of that description, as you said 'short' [,w]ould you be able to recall whether the gun that we are going to show you will be similar to that pointed to your husband's neck? COURT: Excuse me. Before you show that particular gun to the witness, [d]o you know what sort of hand gun was pointed to your husband? A No, Your Honor. Basta baril. Para pong pagalingan lang yung baril na yan, eh. Ngunit kung pakikitaan ako puwede k[o]ng ituro pero hind ko alam kung anong klaseng baril yon. FISCAL DAOSOS: Q I'm showing to you a [hand]gun. Will you be able to tell this Honorable Court if the gun pointed to the neck of your husband would be similar to this? A Para pong kamukha. FISCAL DAOSOS: This was already marked as Exh. 'A', Your Honor. Q Now, where was your husband seated, madam witness? A Nasa gitna po siya ng dalawang lalake. Q Where? [In f]ront or at the rear? A He was seated at the rear of the car sandwiched by two persons. Q Now, you said that your husband was seated between two persons. Would you be able to tell this Honorable Court which of the two pointed a gun at your husband. Was it the person sitting at the left of your husband or the right side of your husband? A I did not see clearly which of the two men was pointing a gun at my husband. Q You said, Mrs. Garcia, that your husband was seated between two persons at the rear seat of the car, [is] that correct? A Yes, sir. Q Would you be able to recognize any of the two that sandwiched your husband? ATTY. LEONARDO: Your Honor, the witness is incompetent to answer that. COURT: Let her answer if she knows. A Yung pong isa sa kaliwa ng mister ko. FISCAL DAOSOS: Q Will you kindly look around this courtroom and point to the person identified, the person sitting at the left of your husband? A At my husband's left was Reynaldo Yambot. Q We go back to that portion where you said you immediately opened the door of the front seat of the car . . . COURT: You would not know or you would not recall the face of the man who was seated to your husband's right? A I cannot recall, Your Honor. FISCAL DAOSOS: Q You said that you opened the front seat of the car. Which side of the door of the car that you opened? A I opened the right side door of the vehicle. Q Were you able to open the car? A Yes, sir. Q What did you do, if any, when you opened the car?

A I asked them why they are taking my husband. What wrong has he done. Q What was their reply, if any? A I did not hear any answer. . . COURT: Q Bakit wala kang narinig na sagot. Ano ang sinabi mo sa kanila? A Ang sinabi ko po, 'ano ang kasalanan ng mister ko, bakit ninyo siya kinuha.' I did not hear any answer but instead I was whipped with a gun. Q Were you hit by this gun? Where were you hit? A The gun hit my nose and my nose even bled on that day. Q Will you tell this Honorable Court briefly what kind of gun was used to whip you? ATTY. LEONARDO: The witness already answered she does not know what kind of a gun was that. [FISCAL DAOSOS:] Q All right. The next question is, is it a long gun or a short gun? A It was also a short gun. Q Would you be able to say if the gun looks similar to the one that was pointed to the neck of your husband? ATTY. LEONARDO: We interpose objection to that question, Your Honor. For the reason that it is not only leading but the witness is incompetent to testify on what kind of gun was she able to see. FISCAL ASDALA: The testimony refers to the husband not to the gun used in whipping her. FISCAL DAOSOS: Q Would it be similar? ATTY. LEONARDO: She's not in a position to testify. . . COURT: Just ask her to describe it. A Parang pareho duon sa ipinakita sa akin. (it looks like the one I was shown earlier). COURT: Witness referring to a caliber 45 marked as exhibit 'A'. FISCAL DAOSOS: Q You said you asked them, 'why are you taking my husband, what wrong has he done'. Now, did you notice if there were people in the front seat of the car? A Yes, sir. Q Would [you] be able to recognize the person who whipped you with the gun? A Nakilala ko po. Q If he is in this courtroom would [you] be able to identify him? A Yes, sir. Q Will you please step down and identify this person by lightly tapping his shoulder? INTERPRETER: Witness pointed to a man inside the courtroom who identified himself as Arnold Lopez. [FISCAL DAOSOS:] Q Where was this Arnold Lopez seated? A He was seated in [f]ront beside the driver. COURT: Q Where was he at the time when he whipped you with the gun? A He was seated beside the driver's seat. FISCAL DAOSOS:

Q How about the driver's seat[,] was somebody there? A Meron po. Q Would you tell this Honorable Court if that man occupying the driver's seat is inside this courtroom? A He is not present. Q Now, after you were whipped and you received no reply, what happened, if any? A Tinulak niya po ako palabas. Q Who? A Arnold Lopez pushed me out. Q Now, after you were pushed out, what else happened? A They sped away. Q Were you able to observe to what direction they sped away? A They were going towards the direction of Acacia Lane." 24 These testimonies constitute persuasive and unassailable proof that all the appellants committed the crime of kidnapping. Certainly, the positive identification of them by the victim and his wife, who had ample opportunity to see and remember their faces, more than satisfies the judicial mind and conscience. It is natural for victims of crimes to strive to remember the faces of their assailants and the manner in which they committed the crime. 25 Hence, there is usually no reason for us to doubt their testimonies or to suspect their motives. The present witnesses had close contact with the kidnappers when the victim was abducted and his wife was hit with a gun. Further, the victim was held for ten (10) days, which was more than ample time for him to be familiar with them. His wife, on the other hand, was in constant communication with one of the appellants during the ransom payment negotiations. She again saw them during the actual ransom payment. Moreover, the appellants did not even deny their presence during the abduction or the ransom payment. This fact bolsters the credibility of the spouses and confirms that they did not simply make up their narration of the kidnapping. As to the demand for and the actual payment of the ransom money, the victim's wife testified thus: "JUSTICE CONCEPCION: Q On March 17, 1994 you recall having received a telephone call? A Opo. Q At about what time did you receive the call? A Banda pong mag-aalas dose ng umaga po. Q And who was the one who called you? A Si Adan po. Q Was there any conversation? A Ang sabi niya po sa akin 'nadagdagan na ba 'yong pera?' 'Opo, nadagdagan na ng dalawang daan.' COURT: Dalawang daang piso? Dalawang daan? O two hundred thousand? A Two hundred thousand (P200,000.00). JUSTICE CONCEPCION: .Q And what did Adan say? A x x x sabi niya 'ito na dahil ang sabi mo gusto mong makausap ang mister mo, ito na ang mister mo, kausapin mo na siya.' Q Were you able to talk to your husband? A Opo, kinausap niya ako. Ang sabi niya po sa akin 'lumipat ka ng bahay.' Q What else? A Yon po ang sabi niya lumipat ako ng bahay. Pa[g]katapos ko daw pong makipagusap. COURT:

Just quote what he said. You quote what he actually said to you. PROS. DAOSOS: Ano ang sinabi? A Opo. Ang sabi niya lumipat ako ng bahay. COURT: Hindi lumipat. 'Yong mismong sinabi niya. I-quote mo 'yong sinabi niya mismo. A Yon nga lumipat daw ako ng bahay. COURT: Hindi. Kung ano ang sinabi niya mismo. A 'Lumipat ka ng bahay.'' JUSTICE CONCEPCION: Q To what house? A 'Lumipat ka ng bahay. Pumunta ka doon kila nanay.' COURT: 'Yon lang ba ang sinabi sa iyo sa telepono? A Oho. Tapos ang sagot ko 'bakit?' Q And what was the answer? A Wala na po. Ang sumagot si Adan na po. Q And what did Adan say? A Ang sabi niya 'O, iready mo ang pera' tatawag uli ako bago mag-ala una.' JUSTICE CONCEPCION: Q What else did he say? Is that all? A Opo. Binaba na niya ang telepono. Q Do you recall if on that day Adan Manalo called you up? A Opo, tumawag po siya mga ala-una. Q What was your conversation? A Tinanong niya po sa akin kung magkano na ang pera. Ang sabi ko po 1.2 na. Q 1.2 what? A One million two hundred thousand pesos (P1,200,000.00) lang ang naiipon ko. Nagalit po siya sa akin. Ang sabi niya 'bakit 1.2 lang?' Di ba sabi mo 2 million na. Akala ko two million na.' Hindi sabi ko. 1.2. tang ang naipon ko sa ngayon. Baka puwede na iyon kapalit ng mister ko. Q And what did Adan say? A Na cut na naman[. [T]atawag uli ako[,] sabi niya. Q Did he in fact call up again? A Opo. Q At about what time. A Mag-aalas dos na po iyon. Q Ng hapon? A Ng hapon po. Q And what was your conversation with him? A Pumayag na po siya sa 1.2 na ibibigay ko sa kanya kapalit ng mister ko. Q When you said 1.2, what do you mean? A Ransom money. Q 1.2 what is that? A One million two hundred thousand pesos (P1,200,000.00). Q So you said he agreed already to the amount of one million two hundred thousand pesos (P1,200,000.00)? A Opo. Q In exchange [for] your husband?

A Opo. Q And what else did you talk about? A Binigyan niya po ako ng instruction kung saan ko ibibigay 'yong 1.2 million. Q Could you tell us what is the instruction? A Ang sabi niya po sa akin magkikita kami ng bago mag-alas kuwatro ng hapon sa fly-over. Q Fly-over where? A Doon po sa Magallanes papuntang Alabang doon po sa ibabaw tapat po daw ng Mercedes Benz Service. Doon po daw ako tatapat at buksan ko daw iyong hood para po daw sira . . . sira 'yong sasakyan ko at saka buksan ko po daw lahat ang bintana ng sasakyan ko. Q Was there any other instructions? A Ang sabi po niya ipaparada po daw niya sa tabi ng sasakyan ko at saka bubuksan niya sasabihin niya 'ako si Adan.' Doon ko po daw ibibigay ang pera. Pag sinabi niyang siya si Adan doon ko po daw ibibigay ang pera. At saka tinanong din po niya sa akin kung anong sasakyan ang gagamitin ko. Q Did you tell him? A Opo, sinabi ko po Pajero ang gagamitin kong sasakyan. Ibinigay ko po lahat 'yung plate number. Q What plate number did you give? A 'T' as in Task, 'F' as in Force and 'H' as in Habagat. Number 808. Q What else did you talk about? A ['Y]on po. Sabi niya bago mag-alas kuwatro nandon na ako. Binaba na po niya. Q Now what happened after your phone conversation? A I called up PACC. Q Whom did you call? A Si Major Aquino po at saka si Tinyente Mendoza. Nagpunta po sila sa bahay. Q Were you able to talk with them? A Opo. Q What was your conversation with them? A Sinabi ko po sa kanila magbabayaran na kami dito sa lugar na ito bago mag-alas kuwatro magkikita kami sa ibabaw ng fly-over. Q Did you tell them what fly-over? A Opo. 'Yon pong sa Magallanes papuntang Alabang doon po ako pupuwesto. Q What time you should go there? A Bago mag-alas kuwatro nandoon na ako sa ibabaw. Q What did Major Aquino and his companion tell you? A Wala na po. Umalis na po sila. Ako naman po papunta na sa luga[r] na ibibigay ko 'yong pera. COURT: Q Are you saying that Major Aquino did not give you any instruction? A Wala na po. Basta ang sabi niya 'O sige pumunta ka na doon.' Hindi ko na po alam kung ano ang gagawin nila. JUSTICE CONCEPCION: Q Did you in fact go to the fly-over on the corner of Magallanes? A Opo, pumunta po ako. Q In what vehi[cl]e were you riding? A 'Yon pong Pajero. Q Who was driving? COURT: Q At what time did you leave your house?

A Siguro po mga alas 3:15 po. JUSTICE CONCEPCION: Q Who was the driver? A May driver po ako. Q And where were you seated? A Sa tabi po ng driver. Q When you went to the place [w]here you bringing anything with you? A Opo, meron po. Q What were you bringing? A 'Yon pong pera na nakalagay sa bag.' COURT: Q How much? A One million two hundred thousand pesos (P1,200,000.00). Q Place in? A Nakalagay po sa bag na Dunlop na kulay asul. JUSTICE CONCEPCION: Q Did you arrive at the fly-over in Magallanes? COURT: A Were you not going to ask her to identify the bag? JUSTICE CONCEPCION: Later on Your Honor because the money were xeroxed. We will ask her. Nakarating na ba kayo sa Magallanes? A Opo, nakarating po kami. Q And what happened upon your arrival in Magallanes? A 3:45 ng makarating po kami doon. Q Did your driver comply with the instruction to open the hood? A Opo. Bumaba po siya at saka binuksan 'yong hood na kunwari nasiraan 'yong sasakyan. Eh, matagal po kami doon. May lumapit pa pong traffic aide. Ang sabi ko sandali na lang, inaayos pa 'yong sasakyan eh. Ang sabi ko aalis na rin kami dahil ho tumagal kami doon ng mga ten minutes eh. Tinataboy na kami ng traffic aid. Ngayon ho sinara namin 'yong hood. Lumakad ho kami unti-unti eh kasi nga hindi pa ho sila dumarating. Eh ngayon siguro mga alas-kuwatro na ho sila dumating biglang meron pumaradang red toyota sa tabi namin. COURT: Q Where did they park their car? A They parked their car parallel to my car. JUSTICE CONCEPCION: Q You mentioned a red toyota. I am showing you Exhibit 'I' on which attached Exhibits 'I-1' and '1-2', can you identify them? A Para pong kahawig na ganito. Ganitong kulay. Q Ang ano? A Ang sasakyan. Q Kahawig na paano? A Para pong ganyan. Q After this toyota car stopped beside the Pajero, what transpired next? A Bumukas po 'yong dalawang bintana. Bandang kanan nila. Dalawang bintana. Q Nang ano? Nang anong kotse? A Yong red toyota po. Q And where were you at that time? A Nandoon po ako sa tabi ng driver.

Q Nang? A Nang sasakyan ko po, 'yong Pajero. Q When those two (2) windows on the right side of the car, the toyota car open did you see anything? A Nakipag-usap po sa akin . . . Nakita ko po ang mister ko at saka 'yong katabi niya. COURT: Q Where was he seated? Right or left? A Parang nasa gitna po. Parang nandito po siya sa tagiliran. Q When you saw your husband where was he seated? A Dito po sa tabi ng bintana. Q Kaya nga, where was he seated? A Sa likod po. Q Yes, where was he seated, right, middle or left? A Right. Q Extreme right? A Yes. JUSTICE CONCEPCION: Q Was he alone in the back seat? A Hindi ho. Nakita ko ho 'yong sa kaliwa niya. Q Can you identify the man who was seated on his left? A Opo. (Witness pointing to a man inside the court room, who, when asked, answered by the name of Arthur Pangilinan. Q Do I understand from you that there were only two (2) persons seated at the back seat of the toyota? A Apat po sila. Pang lima ang mister ko. Kaya lang hindi ko nakita 'yong isa doon sa bandang hulihan. Q 'Yong upuan lang sa likod 'yong katabi ng asawa mo? Ilang tao ang nakita mong naroroon? Isang tao lang o . . .? A Dalawa lang sila. Kaya lang hindi ko mamukhaan 'yong isa pa dahil 'yong bintana eh, hindi ko na siya makita. Q What about in the front seat, was there anybody in the front seat? A Meron po. 'Yon po si Adan. Q Can you identify them? A Opo, si Arnold Lopez. COURT: Q Saan nakaupo si Arnold Lopez? A Doon po sa harapan na tabi ng driver. JUSTICE CONCEPCION: Q Can you identify him? A Opo. (Witness pointing to a man inside the court room, who, when asked, identified himself as Arnold Lopez as the man seated beside the driver.) Q Was there anyone seated at the driver's seat of the red toyota? A Meron po 'yong driver. Kaya lang hindi ko po siya nakita. May tao doon dahil dalawang bukas na bintana. COURT: Q Nakita mo 'yong driver? A Hindi ko po nakita. 'Yong paa lang ang nakita ko. JUSTICE CONCEPCION:

Q Have you seen your husband in the car? What transpired next? What happened after you saw your husband? A After ho? Nakipag-usap po siya sa akin. Q What did he say? A Ang sabi niya uuwi na daw po ako magtataksi na lang siya. Magtataksi na lang po daw siya pauwi sa amin. Tapos po sinarado na po 'yong bintana. COURT: Will you please quote it. A 'Umuwi ka na, uuwi na lang ako. Magtataksi na lang ako.' JUSTICE CONCEPCION: Q You said . . . You mentioned that you have with you on that day one million two hundred thousand pesos (P1,200,000.00)? A Opo. Q Now, what did you do with that money? A Bumaba po si Adan. COURT: Q Who is Adan? A Si Arnold Lopez. Sabi niya 'ako si Adan, amin na ang pera.' JUSTICE CONCEPCION: Q Where was Adan Manalo at the time he uttered that words? ATTY. LEONARDO: We object to the question of distinguished justice Your Honor. COURT: Why? ATTY. LEONARDO. Because he already stated that Adan went out. COURT: He went out of the car. ATTY. LEONARDO: Yes, [he] went out Your Honor. The question is where was he seated? COURT: Q Where was he if you know in relation to where he was seated? Saan si Adan, ah, si Arnold Lopez? A Doon po sa unahan ng sasakyan. Binuksan niya bumaba siya pagkatapos kinuha niya ang pera sa akin. Q Katabi siya ng driver mo? A Opo. Ito po 'yong driver ko dito niya pinadaan ang pera. Q Kaya nga saan nakatayo si Adan? A Doon po sa labas sa tabi ng driver ko. (He was standing beside my driver when I gave the money to him). JUSTICE CONCEPCION: Q I am showing you this kind of bag which bag has a word 'Dunlop' on it and previously marked as Exhibit 'G', can you identify this bag? A Opo, 'yan po ang pinaglagyan ko ng pera. Q After you deliver the bag containing one million two hundred thousand pesos (P1,200,000.00), what happened next? A Umalis na po kami. Bumalik na po ako sa bahay namin. Q When you say 'kami', to whom do you refer? 'Umalis na kami'. A 'Yong driver ko.

Q 'Yong driver mo at ikaw? A Opo. Q And what about the car what happened to it? A Umalis na rin po siya. Magkaiba kami ng daan. (They left and we went into different directions). Q You said you went in different directions, the Pajero and the toyota car. To what directions did you go? A Going to Manila. Q And what about the toyota car, where was it [heading]? A Hindi ko na po sila alam kung saan sila lumiko." 26 Clearly, the appellants' denial cannot overcome the positive identification by the complaining witness and his wife. As a defense, denial is indeed insipid and weak, being easy to fabricate and difficult to disprove. 27 Mere denial of involvement in a crime cannot take precedence over the positive testimony of the offended party. 28 Strangely, considering their proven participation in the crime, appellants Lopez and Yambot also proffer the defense of alibi. For it to prosper, however, it is not enough for them to prove that they were somewhere else when the crime was committed; they must likewise demonstrate that it was physically impossible for them to have been at the scene of the crime at the time. 29 This, appellants miserably failed to show. Moreover, other than giving self-serving testimonies, they did not present any evidence to corroborate their denial and alibi. It cannot be gainsaid that self-serving declarations are inadmissible as evidence of the facts asserted. 30 As a general rule, the reason for the exclusion of such evidence is not that it might never contribute to the ascertainment of the truth. Rather, the reason is that, if received, it would most likely consist of falsehoods fabricated for the occasion and mislead more than enlighten. 31 Time and time again, this Court has ruled that denial and alibi are the weakest of all defenses, because they are easy to concoct and difficult to disprove. 32 Furthermore, they cannot prevail over the positive and unequivocal identification of appellant by the offended party. 33Absent any showing of ill motive on the part of the eyewitness testifying on the matter, a categorical, consistent and positive identification of the accused prevails over denial and alibi. 34 Unless substantiated by clear and convincing proof, denial and alibi are negative, self-serving and undeserving of any weight in law. 35 In the instant case, there is no showing of any improper motive on the part of the victim or his wife to testify falsely against the accused or to implicate them falsely in the commission of so heinous a crime. The logical conclusion, then, is that no such improper motive exists and that the testimonies are worthy of full faith and credence. 36 Likewise, the fact that the judge who penned the decision was not the same one who had heard the testimonies of all the witnesses is not a compelling reason to jettison the findings of the court a quo. This circumstance does not ipso facto render the judgment erroneous, more so when it appears to be fully supported by the evidence on record. 37 While a judge in such a situation has no way to test the credibility of all the witnesses, since he did not have the unique opportunity of observing their demeanor and behavior under oath, the trial court's factual findings are nonetheless binding on this Court when these are ably supported by the evidence on record. 38 Unless there is a clear showing of grave abuse of discretion, the validity of a decision is not necessarily impaired by the fact that its ponente only took over from a colleague who had earlier presided at the trial. 39 Appellants also question the RTC decision finding all of them in conspiracy to commit kidnapping for ransom. They submit that conspiracy was not established with positive and conclusive evidence. According to them, to be guilty of conspiracy, they must be shown to have participated in

the criminal design and, at the same time, to have committed overt acts necessary or essential to the perpetration of the offense. Such postulations are merely feeble attempts to escape liability. We do not subscribe to the tale of appellants that they associated with Jun Notarte, the alleged mastermind, simply because he had offered them high-paying jobs. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. 40 The agreement need not be proven by direct evidence; 41 it may be inferred from the conduct of the parties before, during and after the commission of the offense, 42 pointing to a joint purpose and design, concerted action, and community of interests. 43 Indeed, jurisprudence consistently tells us that conspiracy may be deduced from the mode and manner in which the offense was perpetrated. 44 In the case at bar, as the trial court correctly held, conspiracy may be deduced from the appellants' acts that show concerted action and community of interest. If it can be proven that two (2) or more persons aimed their acts toward the accomplishment of the same unlawful object so that their acts, though apparently independent, were in fact connected and cooperative, indicating closeness of personal association and concurrence of sentiment then conspiracy may be inferred, even though no actual meeting among them to concert means can be shown. 45 Consequently, the conspirators shall be held equally liable for the crime, because in a conspiracy the act of one is the act of all. 46 Undoubtedly, in perpetrating the kidnapping for ransom, conspiracy existed among herein accusedappellants. Viewed in its totality, the individual participation of each of them pointed to a joint purpose and criminal design. Notarte and Yambot snatched the victim from his office in Mandaluyong, Metro Manila. Pangilinan and Yambot sandwiched him in the car and transported him, together with the others, to a house where he was detained for ten days. Lopez negotiated with the victim's wife for the ransom payment. Further, all three appellants set out to the designated place of ransom payment. These acts were complementary to one another and were geared toward the attainment of a common ultimate objective. That objective was to extort a ransom of P10 million (which was later reduced to P1.2 million through bargaining by the victim's wife) in exchange for the victim's freedom. Moreover, it is difficult to accept the excuse of appellants that they had nothing to do with the kidnapping. We agree with the following observation of the trial court: "Pangilinan's pretenses do not jibe well with reality. From his own version of the incident, there was no need for Notarte to have hired him merely to watch the former[']s car on the day of the abduction. For, it must be emphasized that when Notarte and Yambot left the car and entered the building for the purpose of abducting Garcia, one of Notarte's companions, Arnold Lopez, was left in the car. Evidently, Lopez could very well have assumed the role of watching the car without the need of having to hire an extra hand for the purpose. "Moreover, it is significant to note that as early as March 08, 1994 when Garcia was forcibly taken from his office whom Pangilinan thought, as he was made to understand, was a drug pusher, he already entertained some suspicion that it was not so and that-Notarte and his group were into something illegal when instead of going to Camp Crame to detain the drug-pushing suspect, they bypassed Camp Crame and proceeded to Baliuag, Bulacan. He was even prompted, by reason of said unexpected turn of events, to tell his wife right after he was given PHP 500.00 as his compensation for the day and after he was sent home by Notarte that what he saw was not an arrest of a suspect but a hold-up. Yet, when Notarte again passed by his house on March 17, 1994, Pangilinan again went with Notarte, although Pangilinan claims that he was only forced to do so because of alleged threat by Notarte that something would happen to him and his family if he refuses to go with him. Such threat, assuming it was made, pales into significance in the light of the fact that Pangilinan accepted from Notarte an additional amount of PHP 1,000.00 which, if

anything, clearly demonstrates, coupled with his earlier participation, his complicity or connivance with Notarte in the abduction of Teofilo Garcia." xxx xxx xxx "The accused Pangilinan, Lopez and Yambot uniformly declared that their involvement with Notarte was only on account of the latter's offer to them of better-paying jobs and not because of his plan to kidnap a person of which they were not privy to. Only the naive would fall for such a ruse. If their testimonies are to be believed, the jobs being offered to them were no better than their jobs at the time the offers were made. Besides, all of them profess to barely know Notarte when he approached them about the jobs and yet they appear to have readily accepted the offers. On the part of Notarte, he could not have been stupid enough to have recruited men of dubious loyalty and commitment to a risky and dangerous undertaking." 47 Verily, it is "inconceivable that members of a kidnapping syndicate would entrust the performance of an essential and sensitive phase of their well-planned criminal scheme to people not in cahoots with them, and who had no knowledge whatsoever of the details of their nefarious plan." 48 Appellant Lopez also argues that he cannot be convicted, because he was not sufficiently represented during the presentation of co-appellant Pangilinan as hostile witness. Such an argument would hold if Lopez's conviction were based on Pangilinan's testimony. But as we have held above, Lopez was convicted because of the positive identification made not only by the victim, but also by the victim's wife who also pointed to him as the person who had whipped her with a gun on the day her husband was abducted. 49 When Arthur Pangilinan testified in the absence of Lopez's counsel, the court appointed Atty. Leonardo to represent Lopez for that day. 50However, we find that such an appointment did not provide the appellant with adequate representation to safeguard his rights fully. It was irregular because Pangilinan, whom the lawyer was also representing, gave incriminating statements against Lopez. As the counsel of Pangilinan, Atty. Leonardo could not have objected either to his questions or to his answers to safeguard the rights of his other client, Lopez. However, this notwithstanding, the incriminating evidence provided by the victim and his wife are more than sufficient to convict Lopez even without Pangilinan's testimony. Appellants were charged with and convicted of the crime of kidnapping for ransom and serious illegal detention. Article 267 of the Revised Penal Code reads: "Art. 267. Kidnapping and serious illegal detention. Any private individual who shall kidnap or detain another, or in any other manner deprive him of liberty, shall suffer the penalty of reclusion perpetua to death. 1. If the kidnapping or detention shall have lasted more than three days; 2. If it shall have been committed simulating public authority; 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made; 4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female, or a public officer. The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above mentioned were present in the commission of the offense. When the victim is killed or dies as a consequence of the detention, or is raped or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed." The elements of the crime of kidnapping and serious illegal detention are the following: (a) the accused is a private individual; (b) the accused kidnaps or detains another, or in any manner deprives the latter of his liberty; (c) the act of detention or kidnapping is illegal; and (d) in the commission of the offense, any of the four circumstances mentioned above is present. 51 Moreover, the imposition of the death penalty is mandatory if the kidnapping was

committed for the purpose of extorting ransom. 52 In the instant case, appellants cannot escape the penalty of death, inasmuch as it was sufficiently alleged and indubitably proven that the kidnapping had been committed for the purpose of extorting ransom. As to the conviction of the appellants for illegal possession of firearms, we are constrained to dismiss and set aside this portion of the judgment. They cannot be held liable for such offense, since there was another crime kidnapping for ransom which they were committing at the same time. The law governing illegal possession of firearms provides: "SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition:Provided, That no other crime was committed. "The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. "If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. "If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d'tat, such violation shall be absorbed as an element of the crime of rebellion or insurrection, sedition, or attemptedcoup d'tat. "The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment. "The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor." 53 (Emphasis supplied) Interpreting this law, this Court has consistently ruled that if an unlicensed firearm is used in the commission of any other crime, there can be no separate offense of simple illegal possession of firearms. 54 Explained the Court: "Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 8294's simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. Moreover, since the crime committed was direct assault and not homicide or murder, illegal possession of firearms cannot be deemed an aggravating circumstance x x x x. The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that "no other crime was committed by the person arrested." If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we." 55

In sum, we affirm the conviction of the appellants as principals in the crime of kidnapping for ransom and serious illegal detention. However, we set aside the judgment convicting them of illegal possession of firearms. As regards the articles allegedly taken from the victim during the kidnapping, we find that the prosecution failed to prove with certainty the amount of money or the value of the jewelry taken from him. These cannot be presumed. Moreover, we reduce the award of moral damages to three hundred thousand pesos (P300,000.00) to be paid by the appellants solidarily. The fact that the victim suffered the trauma of mental, physical and psychological ordeal constitutes sufficient basis for an award of moral damages. 56 Meanwhile, an aggravating circumstance, whether ordinary or qualifying, entitles the offended party to exemplary damages within the meaning of Article 2230 of the Civil Code. 57 There being a demand for ransom in this case, and by way of example or correction, the offended party shall receive exemplary damages in the amount of one hundred thousand pesos (P100,000.00). 58 WHEREFORE, the decision of the RTC of Pasig City (Branch 70) in Criminal Case No. 106115 sentencing appellants to death for kidnapping for ransom is AFFIRMED with the MODIFICATION that they shall pay the victim in solidum the amount of three hundred thousand pesos (P300,000.00) as moral damages and an additional amount of one hundred thousand pesos (P100,000.00) as exemplary damages. Costs against appellants. However, the Decision of the court a quo convicting them of illegal possession of firearms in Criminal Case No. 106116 is REVERSED and SET ASIDE. Three Justices of the Court maintain their position that R.A. No. 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional, and that the death penalty can be lawfully imposed in the case at bar. In accordance with Section 25 of R.A. No. 7659 amending Section 83 of the Revised Penal Code, let the records of this case be forthwith forwarded, upon finality of this decision, to the Office of the President for possible exercise of the pardoning power. SO ORDERED. Davide, Jr., C.J ., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ ., concur.

FIRST DIVISION G.R. No. L-74324 November 17, 1988

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y MAGDALENA, accused-appellants. The Solicitor General for plaintiff-appellee. Citizens Legal Assistance Office for accused-appellants.

MEDIALDEA, J.: For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA and BENJAMIN SAMSON y MAGDALENA were charged with the crime of MURDER in Criminal Case No. L-175-82 of the Court of First Instance (now Regional Trial Court) of Cavite, under an information which reads as follows: That on or about May 19, 1982 at the town plaza of the Municipality of Rosario, Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping and assisting one another, with treachery and evident premeditation, taking advantage of their superior strength, and with the decided purpose to kill, poured gasoline, a combustible liquid to the body of Bayani Miranda and with the use of fire did then and there, wilfully, unlawfully and feloniously, burn the whole body of said Bayani Miranda which caused his subsequent death, to the damage and prejudice of the heirs of the aforenamed Bayani Miranda. That the crime was committed with the qualifying circumstance of treachery and the aggravating circumstances of evident premeditation and superior strength, and the means employed was to weaken the defense; that the wrong done in the commission of the crime was deliberately augmented by causing another wrong, that is the burning of the body of Bayani Miranda. CONTRARY TO LAW (p. 1, Records). Upon being arraigned, both accused pleaded not guilty to the offense charged. After trial, the trial court rendered a decision finding both accused guilty on the crime of murder but crediting in favor of the accused Pugay the mitigating circumstance of lack of intention to commit so grave a wrong, the dispositive portion of which reads as follows: WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin Samson y Magdalena are pronounced guilty beyond reasonable doubt as principals by direct participation of the crime of murder for the death of Bayani Miranda, and appreciating the aforestated mitigating circumstance in favor of Pugay, he is sentenced to a prison term ranging from twelve (12) years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum, and Samson to suffer the penalty of reclusion perpetua together with the accessories of the law for both of them. The

Republic of the Philippines SUPREME COURT Manila

accused are solidarily held liable to indemnify the heirs of the victim in the amount of P13,940.00 plus moral damages of P10,000.00 and exemplary damages of P5,000.00. Let the preventive imprisonment of Pugay be deducted from the principal penalty. Cost against both accused. SO ORDERED (p. 248, Records). Not satisfied with the decision, both accused interposed the present appeal and assigned the following errors committed by the court a quo: 1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF ACCUSEDAPPELLANTS IN ITS APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT THE ACCUSED-APPELLANTS WERE NOT ASSISTED BY A COUNSEL DURING THE CUSTODIAL INVESTIGATION. 2. THE COURT A QUO ERRED IN NOT FINDING THAT THE SUPPRESSION BY THE PROSECUTION OF SOME EVIDENCE IS FATAL TO ITS CASE. 3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE INCREDIBLE TESTIMONY OF EDUARDO GABION WHO WAS ONE OF THE MANY SUSPECTS ARRESTED BY THE POLICE (Accused-appellants' Brief, p. 48, Rollo). The antecedent facts are as follows: The deceased Miranda, a 25-year old retardate, and the accused Pugay were friends. Miranda used to run errands for Pugay and at times they slept together. On the evening of May 19, 1982, a town fiesta fair was held in the public plaza of Rosario, Cavite. There were different kinds of ride and one was a ferris wheel. Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris wheel and reading a comic book with his friend Henry. Later, the accused Pugay and Samson with several companions arrived. These persons appeared to be drunk as they were all happy and noisy. As the group saw the deceased walking nearby, they started making fun of him. They made the deceased dance by tickling him with a piece of wood. Not content with what they were doing with the deceased, the accused Pugay suddenly took a can of gasoline from under the engine of the ferns wheel and poured its contents on the body of the former. Gabion told Pugay not to do so while the latter was already in the process of pouring the gasoline. Then, the accused Samson set Miranda on fire making a human torch out of him. The ferris wheel operator later arrived and doused with water the burning body of the deceased. Some people around also poured sand on the burning body and others wrapped the same with rags to extinguish the flame. The body of the deceased was still aflame when police officer Rolando Silangcruz and other police officers of the Rosario Police Force arrived at the scene of the incident. Upon inquiring as to who

were responsible for the dastardly act, the persons around spontaneously pointed to Pugay and Samson as the authors thereof. The deceased was later rushed to the Grace Hospital for treatment. In the meantime, the police officers brought Gabion, the two accused and five other persons to the Rosario municipal building for interrogation. Police officer Reynaldo Canlas took the written statements of Gabion and the two accused, after which Gabion was released. The two accused remained in custody. After a careful review of the records, We find the grounds relied upon by the accused-appellants for the reversal of the decision of the court a quo to be without merit. It bears emphasis that barely a few hours after the incident, accused-appellants gave their written statements to the police. The accused Pugay admitted in his statement, Exhibit F, that he poured a can of gasoline on the deceased believing that the contents thereof was water and then the accused Samson set the deceased on fire. The accused Samson, on the other hand, alleged in his statement that he saw Pugay pour gasoline on Miranda but did not see the person who set him on fire. Worthy of note is the fact that both statements did not impute any participation of eyewitness Gabion in the commission of the offense. While testifying on their defense, the accused-appellants repudiated their written statements alleging that they were extracted by force. They claimed that the police maltreated them into admitting authorship of the crime. They also engaged in a concerted effort to lay the blame on Gabion for the commission of the offense. Thus, while it is true that the written statements of the accused-appellants were mentioned and discussed in the decision of the court a quo, the contents thereof were not utilized as the sole basis for the findings of facts in the decision rendered. The said court categorically stated that "even without Exhibits 'F' and 'G', there is still Gabion's straightforward, positive and convincing testimony which remains unaffected by the uncorroborated, self-serving and unrealiable testimonies of Pugay and Samson" (p. 247, Records). Accused-appellants next assert that the prosecution suppressed the testimonies of other eyewitnesses to the incident. They claim that despite the fact that there were other persons investigated by the police, only Gabion was presented as an eyewitness during the trial of the case. They argue that the deliberate non- presentation of these persons raises the presumption that their testimonies would be adverse to the prosecution. There is no dispute that there were other persons who witnessed the commission of the crime. In fact there appears on record (pp. 16-17, Records) the written statements of one Abelardo Reyes and one Monico Alimorong alleging the same facts and imputing the respective acts of pouring of gasoline and setting the deceased on fire to the accused-appellants as testified to by Gabion in open court. They were listed as prosecution witnesses in the information filed. Considering that their testimonies would be merely corroborative, their non-presentation does not give rise to the presumption that evidence wilfully suppressed would be adverse if produced. This presumption does not apply to the suppression of merely corroborative evidence (U.S. vs. Dinola, 37 Phil. 797).<re||an1w> Besides, the matter as to whom to utilize as witness is for the prosecution to decide.

Accused-appellants also attack the credibility of the eyewitness Gabion alleging that not only was the latter requested by the mother of the deceased to testify for the prosecution in exchange for his absolution from liability but also because his testimony that he was reading a comic book during an unusual event is contrary to human behavior and experience. Gabion testified that it was his uncle and not the mother of the deceased who asked him to testify and state the truth about the incident. The mother of the deceased likewise testified that she never talked to Gabion and that she saw the latter for the first time when the instant case was tried. Besides, the accused Pugay admitted that Gabion was his friend and both Pugay and the other accused Samson testified that they had no previous misunderstanding with Gabion. Clearly, Gabion had no reason to testify falsely against them. In support of their claim that the testimony of Gabion to the effect that he saw Pugay pour gasoline on the deceased and then Samson set him on fire is incredible, the accused-appellants quote Gabion's testimony on cross-examination that, after telling Pugay not to pour gasoline on the deceased, he (Gabion) resumed reading comics; and that it was only when the victim's body was on fire that he noticed a commotion. However, explaining this testimony on re-direct examination, Gabion stated: Q. Mr. Gabion, you told the Court on cross-examination that you were reading comics when you saw Pugay poured gasoline unto Bayani Miranda and lighted by Samson. How could you possibly see that incident while you were reading comics? A. I put down the comics which I am reading and I saw what they were doing. Q. According to you also before Bayani was poured with gasoline and lighted and burned later you had a talk with Pugay, is that correct? A. When he was pouring gasoline on Bayani Miranda I was trying to prevent him from doing so. Q. We want to clarify. According to you a while ago you had a talk with Pugay and as a matter of fact, you told him not to pour gasoline. That is what I want to know from you, if that is true? A. Yes, sir. Q. Aside from Bayani being tickled with a stick on his ass, do you mean to say you come to know that Pugay will pour gasoline unto him? A. I do not know that would be that incident. Q. Why did you as(k) Pugay in the first place not to pour gasoline before he did that actually? A. Because I pity Bayani, sir. Q. When you saw Pugay tickling Bayani with a stick on his ass you tried according to you to ask him not to and then later you said you asked not to pour gasoline. Did Pugay tell you he was going to pour gasoline on Bayani? A. I was not told, sir. Q. Did you come to know..... how did you come to know he was going to pour gasoline that is why you prevent him? A. Because he was holding on a container of gasoline. I thought it was water but it was gasoline. Q. It is clear that while Pugay was tickling Bayani with a stick on his ass, he later got hold of a can of gasoline, is that correct? A. Yes, sir.

Q. And when he pick up the can of gasoline, was that the time you told him not to pour gasoline when he merely pick up the can of gasoline. A. I saw him pouring the gasoline on the body of Joe. Q. So, it is clear when you told Pugay not to pour gasoline he was already in the process of pouring gasoline on the body of Bayani? A. Yes, sir (Tsn, July 30, 1983, pp. 32-33). It is thus clear that prior to the incident in question, Gabion was reading a comic book; that Gabion stopped reading when the group of Pugay started to make fun of the deceased; that Gabion saw Pugay get the can of gasoline from under the engine of the ferris wheel; that it was while Pugay was in the process of pouring the gasoline on the body of the deceased when Gabion warned him not to do so; and that Gabion later saw Samson set the deceased on fire. However, there is nothing in the records showing that there was previous conspiracy or unity of criminal purpose and intention between the two accused-appellants immediately before the commission of the crime. There was no animosity between the deceased and the accused Pugay or Samson. Their meeting at the scene of the incident was accidental. It is also clear that the accused Pugay and his group merely wanted to make fun of the deceased. Hence, the respective criminal responsibility of Pugay and Samson arising from different acts directed against the deceased is individual and not collective, and each of them is liable only for the act committed by him (U.S. vs. Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371). The next question to be determined is the criminal responsibility of the accused Pugay. Having taken the can from under the engine of the ferris wheel and holding it before pouring its contents on the body of the deceased, this accused knew that the can contained gasoline. The stinging smell of this flammable liquid could not have escaped his notice even before pouring the same. Clearly, he failed to exercise all the diligence necessary to avoid every undesirable consequence arising from any act that may be committed by his companions who at the time were making fun of the deceased. We agree with the Solicitor General that the accused is only guilty of homicide through reckless imprudence defined in Article 365 of the Revised Penal Code, as amended. In U.S. vs. Maleza, et. al. 14 Phil. 468, 470, this Court ruled as follows: A man must use common sense and exercise due reflection in all his acts; it is his duty to be cautious, careful, and prudent, if not from instinct, then through fear of incurring punishment. He is responsible for such results as anyone might foresee and for acts which no one would have performed except through culpable abandon. Otherwise his own person, rights and property, all those of his fellow-beings, would ever be exposed to all manner of danger and injury. The proper penalty that the accused Pugay must suffer is an indeterminate one ranging from four (4) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. With respect to the accused Samson, the Solicitor General in his brief contends that "his conviction of murder, is proper considering that his act in setting the deceased on fire knowing that gasoline had just been poured on him is characterized by treachery as the victim was left completely helpless to defend and protect himself against such an outrage" (p. 57, Rollo). We do not agree. There is entire absence of proof in the record that the accused Samson had some reason to kill the deceased before the incident. On the contrary, there is adequate evidence showing that his act was

merely a part of their fun-making that evening. For the circumstance of treachery to exist, the attack must be deliberate and the culprit employed means, methods, or 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. There can be no doubt that the accused Samson knew very well that the liquid poured on the body of the deceased was gasoline and a flammable substance for he would not have committed the act of setting the latter on fire if it were otherwise. Giving him the benefit of doubt, it call be conceded that as part of their fun-making he merely intended to set the deceased's clothes on fire. His act, however, does not relieve him of criminal responsibility. Burning the clothes of the victim would cause at the very least some kind of physical injuries on his person, a felony defined in the Revised Penal Code. If his act resulted into a graver offense, as what took place in the instant case, he must be held responsible therefor. Article 4 of the aforesaid code provides, inter alia, that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended. As no sufficient evidence appears in the record establishing any qualifying circumstances, the accused Samson is only guilty of the crime of homicide defined and penalized in Article 249 of the Revised Penal Code, as amended. We are disposed to credit in his favor the ordinary mitigating circumstance of no intention to commit so grave a wrong as that committed as there is evidence of a fact from which such conclusion can be drawn. The eyewitness Gabion testified that the accused Pugay and Samson were stunned when they noticed the deceased burning (Tsn, June 1, 1983, pp. 16-17).<re||an1w> The proper penalty that the accused Samson must suffer is an indeterminate one ranging from eight (8) years of prision mayor, as minimum, to fourteen (14) years of reclusion temporal, as maximum. The lower court held the accused solidarily liable for P13,940.00, the amount spent by Miranda's parents for his hospitalization, wake and interment. The indemnity for death is P30,000.00. Hence, the indemnity to the heirs of the deceased Miranda is increased to P43,940.00. Both accused shall be jointly and severally liable for the aforesaid amount plus the P10,000.00 as moral damages and P5,000.00 as exemplary damages as found by the court a quo. Accordingly, the judgment is affirmed with the modifications above-indicated. Costs against the accused-appellants. SO ORDERED. Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

EN BANC [G.R. No. 138937. January 20, 2004] PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO ABES y YAMBOT @ TONY (deceased), SALDO YBAEZ y ACEBES, ROBERTO BONTO y MENDOZA @ BERT, RICARTE BUMAGAT y ORDONA, RAUL YBAEZ y ACEBES and SIMEON SILVANO, JR., y GUTIERREZ @ JHUN, appellants. DECISION QUISUMBING, J.: For automatic review is the decision[1] of the Regional Trial Court of Bacoor, Cavite, Branch 89, dated September 30, 1998, in Criminal Case No. B-94-293. Its fallo reads: ACCORDINGLY, finding all the accused (ANTONIO ABES y YAMBOT @ TONY, SALDO YBAEZ y ACEBES, ROBERTO BONTO y MENDOZA @ BERT, RICARTE BUMAGAT y ORDONA, RAUL YBAEZ y ACEBES and SIMEON SILVANO, JR., y GUITERREZ @ JHUN) GUILTY beyond reasonable doubt for (sic) Robbery with Homicide, they are each hereby sentenced to die by lethal injection one year after this decision becomes final. They are hereby ordered, jointly and severally, to indemnify the private complainant the amounts of P320,300.00 as compensatory damages; P240,000.00 as loss of earning capacity of her husband; P50,000.00 as moral damages; P50,000.00 as exemplary damages and P50,000.00 as and for attorneys fees. Let the entire records of this case be transmitted to the Supreme Court for automatic review. SO ORDERED.[2] The appellants in the present case were all long-time residents of the town of General Mariano Alvarez (GMA), Cavite. All had previously been employed in various capacities by the GMA Water District. Their alleged victims, the late Antonio Calaycay and his wife, Catalina Calaycay, were also residents of GMA and owners of a grocery and a retail store. On July 11, 1994, the Office of the Provincial Prosecutor of Cavite charged the appellants with the special complex crime of robbery with homicide (robo con homicidio) allegedly committed as follows: That on or about the 20th day of March 1994 at around 7:30 oclock in the evening at Lot 3, Block 35, Carillo Teachers Village, Municipality of Gen. Mariano Alvarez, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping and aiding one another, with intent to gain, by means of force, violence and intimidation, being then armed with a deadly weapon and an unlicensed firearm, taking advantage of their superior strength, and against the will and consent of the owners thereof,

did, then and there, willfully, unlawfully and feloniously, take, steal, rob and carry away from Spouses Antonio Calaycay and Catalina Calaycay the following, to wit: 1. Cash money amounting to P90,000.00; 2. Wallet containing P1,000.00 cash money, a Far East Bank ATM card and a drivers license; and 3. Check Booklet of the Bank of the Philippine Islands, and during the commission of the crime of Robbery and/or subsequent thereto and by reason or on the occasion thereof, the above-named accused, with intent to kill, being then armed with the aforementioned deadly weapon and unlicensed firearm and again conspiring, confederating and mutually helping and aiding one another, with treachery and evident premeditation and with abuse of superior strength, did then and there, wilfully, unlawfully and feloniously, stab and fire upon the person of Antonio Calaycay causing his subsequent death, and also shoot and fire upon the person of Catalina Calaycay hitting her in the abdomen, the above-named accused, having thus performed all the acts of execution which should have produced the crime of Murder as a consequence thereof but which nevertheless did not produce it by reason of causes independent of the will of the accused, that is, by reason of the timely and able medical attendance rendered to the said victim which prevented her death, to the damage and prejudice of said Catalina Calaycay and to the legal heirs of Antonio Calaycay. CONTRARY TO LAW.[3] When arraigned, all of the appellants pleaded not guilty. Thereafter, trial proceeded. The prosecutions version of the incident established that: The spouses Antonio and Catalina Calaycay owned and operated a grocery store at the public market of GMA, Cavite.[4] They also had a retail store at their residence at Block 3, Lot 35, Teachers Village, GMA, which was directly managed by Antonio.[5] At around 7:30 p.m. of Sunday, March 20, 1994, Antonio and Catalina were on their way home from their grocery store in the market aboard their jeep driven by Antonio. When they reached home and were about to park their jeep, they noticed appellants Antonio Abes, Raul Ybaez, his brother Saldo Ybaez, and Roberto Bonto standing in front of their house, while appellants Simeon Silvano, Jr., and Ricarte Bumagat were at the corner of the street near their house.[6] The faces of the Ybaez brothers, Bumagat, Abes, and Bonto were familiar to Catalina because they were frequent customers of their store. She also knew Silvano, Jr., for he was a former member of the police force of GMA.[7] Before the Calaycay spouses could disembark from their jeep, Abes and Raul Ybaez approached her, while Saldo Ybaez and Bonto approached Antonio. All were carrying short firearms. Suddenly, Abes announced a hold-up and warned Catalina not to move. At the same time, he grabbed Catalinas bag, which contained the P90,000.00 sales for the day from their grocery and her wallet containing P1,000.00, her automated teller machine (ATM) card, a check booklet and her drivers license.[8] Catalina resisted and tried to hold on to her bag. Raul Ybaez pistol-whipped her while Abes fired at her three times at close range, [9] but only succeeded in grazing her.

Antonio tried to come to her assistance, but was stabbed thrice by Saldo Ybaez and shot three times by Bonto.[10] After Abes grabbed possession of Catalinas bag, he passed it to Silvano, who then told his companions, Hali kayo bilis, sunod kayo sa akin, doon tayo sa likod dadaan (come quick, follow me, and lets pass at the back).[11] The incident was witnessed by prosecution witnesses Salvador Arcenal[12] and Catalino Mutya, Jr.[13] Antonio was first brought by Catalina and responding neighbors to the Medicare Community Hospital in GMA, where he was pronounced dead on arrival. Hoping that her husband could still be revived, Catalina brought him to the De La Salle University Medical Center in Dasmarias, Cavite. Efforts were made to revive Antonio, but in vain. The autopsy conducted later by the National Bureau of Investigation (NBI) showed that Antonio died of Wounds, gunshot and stab, multiple.[14] Catalina was treated for hematoma and contusions of the right shoulder. The incident was reported by Catalina to the NBI and, after an investigation, an NBI team composed of some twenty (20) agents and operatives accompanied Catalina to GMA. There all the appellants were apprehended. At the trial, the appellants interposed the defense of denial and alibi. Appellant Abes testified that at the time that the Calaycay spouses were held up, he was at his house at Area D, Lot 2, Block 22, Barangay Malia, GMA, Cavite, conversing with his neighbor, Godofredo Inciong. Abes said he never left his house.[15] This was corroborated by Inciong[16] and Laarni Abes,[17] appellants daughter. For his part, appellant Bonto declared that he was at his house at Lot 39, Block 17, Poblacion H, GMA, attending to the relatives, neighbors, and friends who came for the interment of his daughter, Ma. Lourdes Bonto-Egante, who died on March 14, 1994 and was buried on March 20, 1994.[18] He presented a neighbor, Herminio Vival, to support his alibi.[19] He also presented a written statement executed by at least fifteen (15) of his neighbors for the same purpose. Further, Bonto proferred in evidence a certification from the Barangay Captain of Poblacion, GMA, attesting to his good moral character. Appellant Bumagat testified that at the time of the incident he was at his house in Lot 37, Block 3, Area D, GMA, together with his wife and children cooking food for supper.[20] This was corroborated by Mrs. Virginia Gabriel, a high school teacher, who claimed that she was at the Bumagat residence from 6:00 to 8:30 p.m. of March 20, 1994, conversing with the Bumagats and she saw Ricarte Bumagat at his house the whole time, preparing the familys evening meal.[21] Mrs. Gabriel admitted that she and her husband were close friends of Bumagat.[22] Appellant Simeon Silvano, Jr., and Saldo Ybaez both testified that they attended the burial of their co-appellants deceased daughter, Maria Lourdes Bonto-Egante, who was buried at the GMA cemetery on March 20, 1994. After the interment, they proceeded to the house of Reynaldo Silvano, the brother of Simeon, to attend Reynaldos birthday party. With them was Adelfa Silvano, Simeons wife. They arrived at Reynaldos party at around 6:40 p.m. and stayed until 7:40 p.m., after which they left for home.[23] Their attendance at Reynaldos birthday fete was witnessed by appellant Simeons sister, Zenaida Brion;[24] his neighbor, David Sebastian;[25] and his mother, Mrs. Caridad Silvano.[26]

Appellant Saldo Ybaez further testified that at the time of the alleged incident, he was already at home, having just arrived from Reynaldo Silvanos birthday party, which he attended with appellant Silvano, Jr.[27] Appellant Raul Ybaez stated under oath that at the time of the occurrence complained of, he was at the house of his neighbor, Divina Inciong, at Lot 6, Block 7, Barangay Elises, GMA, watching TV. He was with his common-law wife, Josephine and their child.[28] Afterwards, he said he went home with his family and went to sleep. To buttress his alibi, he presented Divina Inciong to corroborate his statement.[29] The defense presented its eyewitness, one Susan Purihin, who testified that she saw the incident. She said no one among the appellants had a hand in perpetrating the crime. The culprits, according to her, were one Erning Taga and his companions.[30] The trial court disbelieved the defense, but found the prosecutions version credible. Accordingly, it convicted the appellants of robbery with homicide. In view of the imposition of the death penalty upon all the appellants, the records of the case were elevated to this Court for automatic review. During the pendency of this automatic review, we were informed by Assistant Director Joselito A. Fajardo of the Bureau of Corrections that appellant Antonio Abes died at the National Bureau of Prisons Hospital on March 6, 2002.[31] The initial certificate of death presented showed that the death of Abes was due to undetermined causes.[32] But on July 15, 2003, the Court was informed by Assistant Director Reinerio F. Albano of the Bureau of Corrections that Abes died on March 6, 2002 due to myocardial infarction, old and recent[33] as indicated by the postmortem findings in the accompanying certificate of death.[34] In our resolution of August 5, 2003, we dismissed the case as to appellant Antonio Abes y Yambot by reason of his death.[35] Hence this review will focus now only on the remaining five appellants, namely: Saldo Ybaez, Roberto Bonto, Ricarte Bumagat, Raul Ybaez, and Simeon Silvano, Jr. The records show that on August 29, 2000, Atty. Alfredo C. Medina manifested to us his wish to be relieved as counsel for appellant Simeon Silvano, Jr.[36] He was replaced by one Atty. Jose L. Sineneng, Jr., who entered his appearance for Silvano, Jr., on September 20, 2000. Atty. Sineneng also moved for an extension of thirty (30) days to file an appellants brief for Silvano, Jr.[37] In our resolution of October 24, 2000, we granted Atty. Medinas prayer to be allowed to withdraw as counsel for Silvano, Jr., and granted the motion of Atty. Sineneng, Jr., for an extension of thirty (30) days or until October 25, 2000 to file an appellants brief for Silvano, Jr. On October 24, 2000, Atty. Sineneng filed a second motion for extension of time of fifteen (15) days to file appellants brief, which we granted in our resolution of November 14, 2000 with warning that this would definitely be the last extension to be given by the Court. On November 13, 2000, Atty. Sineneng filed a Final Motion for Extension of Time to File Appellants Brief for another thirty (30) days or until December 8, 2000, which we granted with final warning that no more extensions would be granted. It then came to our notice that a copy of our resolution of July 9, 2002 addressed to Atty. Jose L. Saneneng was returned unserved, with the notation moved out. In our resolution of September

24, 2002, we directed Atty. Luzviminda D. Puno, Clerk of Court of the Supreme Court, to verify from the Integrated Bar of the Philippines (IBP) the current address of Atty. Jose L. Saneneng and to resend the resolution of July 9, 2002 at such address. On November 25, 2002, the Court was informed by the IBP, through Atty. Jaime M. Vibar, the IBP National Secretary, that the name Atty. Jose L. Saneneng does not appear in the list of our members. On January 14, 2003, we resolved to direct Atty. Jose L. Sineneng, Jr., to show cause why no disciplinary action should be taken against him for his failure to file an appellants brief for Silvano, Jr., and to comply with the resolution requiring the filing of the brief. We also directed appellant Silvano, Jr., to inform us whether he was interested in securing the services of a new counsel or if he desired us to appoint a counsel for him. We likewise resolved to refer the letter of Atty. Vibar to the Bar Confidant for verification of the Bar membership of Atty. Jose L. Sineneng, Jr. On February 24, 2003, we resolved that the copy of the resolution of 10 December 2002 addressed to Atty. Jose L. Saneneng, counsel for appellant S. Silvano, Jr., Rm. 504 J & T Building, Magsaysay Blvd., Sta. Mesa, Manila be deemed served and to require the Bar Confidant to submit a written report on Atty. Jose L. Sanenengs membership in the Bar. In her report dated March 3, 2003, Atty. Maria Cristina B. Layusa, the Bar Confidant, reported to us as follows: Per verification, the name JOSE L. SANENENG does not appear in the Roll of Attorneys. What appears therein is the name JOSE L. SINENENG, JR. of Sta. Isabel, Malolos, Bulacan who was admitted in the Philippine Bar on April 27, 1989.[38] On May 6, 2003, we again resolved to require Atty. Sineneng to show cause why no disciplinary action should be taken against him for failure to file appellants brief for Silvano, Jr., and to file said brief within ten (10) days from notice. On June 3, 2003, Atty. Vibar informed us that there is an IBP member by the name of Atty. Jose L. Sineneng, Jr., and furnished us with both the office and home addresses of said Atty. Sineneng.[39] On August 5, 2003, we directed the Clerk of Court to send all prior notices to both the residential and office addresses of Atty. Sineneng as furnished by the IBP.[40] To date, however, no appellants brief has been filed by Atty. Sineneng on behalf of his client, Simeon Silvano, Jr., nor has the latter manifested that he wishes to engage the services of another lawyer or that he desires to have the Court appoint a counsel de oficio for him. It has been over three (3) years since counsel for Silvano, Jr., last moved for an extension of time to file the required brief. We have granted every extension of time prayed for, but to no avail. Were this an ordinary appeal, we would not have hesitated to apply Section 8,[41] Rule 124 of the 2000 Rules of Criminal Procedure in relation to Section 1,[42] Rule 125. However, it is settled that Section 8 of Rule 124 has no application to cases where the death penalty has been imposed.[43] In the leading case of US v. Laguna, 17 Phil. 533 (1910), we laid down the rule that the power of this Court to review a decision imposing the death penalty cannot be waived either by the accused or by the court. We are well aware that for several years now, the appellants herein have been languishing in death row, with the possibility of execution by lethal injection dangling over their heads like the sword of Damocles. This anguish has been prolonged by the delay in the filing of the appellants brief for Silvano, Jr., which has caused this case to remain stagnant in the Courts docket. Without prejudice to the imposition of proper disciplinary action on counsel for the accused,

we can no longer permit that this case suffer further delay. Hence, we shall proceed to discharge our task by carefully reviewing the judgment of the trial court, based on its findings of fact and application of the law thereon, and thereby determining the propriety of its imposition of the death penalty[44] which appellants now challenge. In their joint brief, appellants Roberto Bonto and Antonio Abes attribute to the RTC the following errors: I THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANTS ANTONIO ABES AND ROBERTO BONTO GUILTY OF THE CRIME OF ROBBERY WITH HOMICIDE. II THE TRIAL COURT LIKEWISE ERRED IN DISREGARDING THE DEFENSE INTERPOSED BY THE ACCUSED-APPELLANTS ANTONIO ABES AND ROBERTO BONTO. III ASSUMING THAT ACCUSED-APPELLANTS ANTONIO ABES AND ROBERTO BONTO WERE GUILTY OF THE CRIME CHARGED, THE TRIAL COURT ERRED IN IMPOSING THE DEATH PENALTY UPON THEM, SINCE THE AGGRAVATING CIRCUMSTANCE OF BAND WAS NOT ALLEGED IN THE INFORMATION.[45] In his separate brief, appellant Bumagat assigns the following errors: I THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT RICARTE BUMAGAT y ORDOA GUILTY OF THE CRIME OF ROBBERY WITH HOMICIDE DESPITE THE FACT THAT THE EVIDENCE PRESENTED BY THE PROSECUTION AGAINST HIM IS INSUFFICIENT TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. II THE TRIAL COURT ERRED IN FINDING THAT THERE WAS CONSPIRACY IN THE COMMISSION OF THE CRIME CHARGED.[46] In their brief, the brothers Saldo and Raul Ybaez assign as errors the following: I THE TRIAL COURT ERRED IN FINDING THE ACCUSED- APPELLANTS SALDO AND RAUL YBAEZ GUILTY OF THE CRIME OF ROBBERY WITH HOMICIDE NOTWITHSTANDING THE FACT THAT THEIR GUILT HAS NOT BEEN PROVEN BEYOND REASONABLE DOUBT. II

THE TRIAL COURT ERRED IN FINDING THAT ACCUSED-APPELLANT RAUL YBAEZ IS A CO-CONSPIRATOR IN THE CRIME CHARGED.[47] The assigned errors by the appellants present pertinent issues concerning (1) the identification of appellants as the culprits and the sufficiency of the prosecutions evidence to sustain a conviction for the offense charged; (2) the correctness of the trial courts finding that appellants acted in conspiracy and holding them liable as co-conspirators; and (3) the propriety of the penalty imposed on each of the appellants. Appellants question the identification of the malefactors made by Catalina Calaycay and the other prosecution witnesses on the ground that inadequate lighting at the locus criminis made positive identification impossible or, at best, unreliable. Appellants contend that in view of the poor illumination at the crime scene, the trial court should not have accepted the identification of the appellants as the malefactors by the prosecution witnesses hook, line, and sinker. Appellants submit that in view of the possible doubts as to their identification by the prosecution witnesses, the prosecution failed to overcome the presumption of innocence in their favor. For the appellee, the Office of the Solicitor General (OSG) counters that the prosecution duly established that Catalina Calaycay clearly saw the perpetrators whom she identified as the appellants herein by the light of a fluorescent light in front of the Calaycay residence. The OSG argues that the defense likewise failed to controvert the fact that the headlights of the Calaycays jeep were on, prior to and at the time of the incident, adding further illumination to the crime scene, thus making identification even easier. Furthermore, the OSG claims that as duly established by witnesses, the headlights of the many passing vehicles afforded illumination for good visibility thus making Catalinas identification of the appellants as the persons responsible for the crime highly credible. In our view, appellants arguments lack merit. We sustain the OSGs submission. First, in assailing the positive identification made by Catalina Calaycay, the appellants conveniently overlook her testimony that she was familiar with them even before the incident complained of had occurred. Recall that Catalina declared that moments before the incident, she recognized the Ybaez brothers, Bumagat, Abes, and Bonto because they were frequent customers of their store, while she knew Silvano, Jr., as he was a former member of the GMA police force. As against this positive declaration of Catalinas, the most appellants could offer were only denials that they knew her, or that they patronized her store or grocery in the public market. Only Bumagat admitted to knowing her by face and that she had a store in the public market.[48] Catalinas testimony on appellants identification must stand, taking into consideration that most of the parties to this case are long-time residents of the same municipality, residing not too far from each other.[49] Plainly said, the parties are not strangers to one other. Catalina testified that she has been residing in GMA since 1972.[50] Abes admitted on cross-examination that he had been staying in his house in said town for more or less twenty-five (25) years.[51] Bonto testified that he had been working as a plumber in GMA for twenty (20) years.[52] A witness for Bonto testified that Bonto has been his neighbor in GMA since 1975.[53] A witness presented by Silvano, Jr., to corroborate his alibi, declared that he and Silvano, Jr., had been neighbors in GMA since 1975.[54] Only the Ybaez brothers had been residents in said town for less than a year.

Over the span of time that the parties hereto had been living in the same town, they have become acquainted with each others faces. In the rural areas, people tend to be more familiar with their town mates. As a rule, familiarity with the physical features, particularly those of the face, is actually the best way to identify the person.[55] It was precisely this familiarity with the faces of the appellants that led Catalina to positively identify them as the malefactors. Second, as found by the trial court, the robbery took place at a very close range, in front of the Calaycay store, whose immediate frontage was lighted by a fluorescent lamp, as well as by the headlights of the jeep owned by the Calaycays, and the lights of passing vehicles. Thus we agree that Catalina was afforded the opportunity to look fully at the faces of the persons who robbed her and fired a gun at her as well as their companions who shot and stabbed her husband to death. The conditions of visibility that fateful evening were, in our view, sufficient for identification of the malefactors. The illumination from a fluorescent lamp, the headlights of a parked jeep, and the lights of passing vehicles suffice for such identification. Moonlight,[56] starlight,[57] kerosene lamps,[58] a flashlight,[59]and lights of passing vehicles[60] have been declared adequate to provide illumination sufficient for purposes of recognition and identification. The illumination provided by a fluorescent lamp, the headlights of a jeep, and the lights of passing vehicles altogether made identification easier. But even where the circumstances were less favorable, witness Catalinas familiarity with faces of appellants considerably reduced any error in identifying the culprits. Appellants contentions on this score show neither a valid reason nor a sufficient cause why we should reject Catalinas testimony identifying appellants as the culprits. Appellants advance not a single reason why Catalina would falsely accuse them or implicate them in so terrible a wrong. Where there is nothing to indicate that a witness was actuated by improper motives, his or her positive declarations on the witness stand, made under solemn oath, deserve full faith and credence.[61] Positive identification of the accused where categorical and consistent, and without any showing of ill motive on the part of the eyewitness testifying, should prevail over the alibi and denial of appellants whose testimonies are not substantiated by clear and convincing evidence. Such denial and alibi are negative and self-serving evidence undeserving of any weight in law.[62] In this case, we find the evidence proffered by the appellants in support of their respective alibis extremely weak. For alibi to prosper, it is not enough for the accused to prove that he was somewhere else when the crime was committed. He must likewise prove that he could not have been physically present at the scene of the crime or its immediate vicinity at the time of its commission.[63] In this case, we note the following: a) Appellant Abes declared on cross-examination that his house was but two (2) kilometers away from the place where the Calaycay spouses resided.[64] b) Appellant Bonto testified that his house was a mere seven hundred (700) meters away from the crime scene.[65] c) Appellant Bumagat admitted that the distance from his residence to the place of the incident is but four (4) kilometers.[66]

d) Appellant Silvano, Jr., stated that his residence is located but two (2) kilometers away from the situs of the incident, a distance which could be negotiated by jeepney travel in just 15 to 20 minutes.[67] e) Appellant Raul Ybaez candidly stated that he resided in Barangay Elises, GMA, Cavite,[68] and that at the time of the incident, he was at a neighbors house.[69] f) Appellant Saldo Ybaez testified that he lived just across Silvano, Jr.[70] The house of Reynaldo Silvano, where appellants Silvano, Jr., and Ybaez allegedly attended a birthday party at the time of the occurrence of the offense charged is roughly one (1) kilometer away from the residence of Silvano, Jr., as per his own admission.[71] From the foregoing, it is clear that there was no physical impossibility for any and all of the appellants to be at the scene of the crime when it happened. Hence, their defense of alibi must fail. In the special complex crime of robbery with homicide, a crime primarily classified as one against property and not against persons, the prosecution is tasked to establish the following elements: (a) the taking of personal property with the use of violence or intimidation against a person; (b) the property thus taken belongs to another; (c) the taking is characterized by animus lucrandi; and (d) on the occasion of the robbery or by reason thereof, the crime of homicide, which is therein used in a generic sense, was committed.[72] In this case, we find that the prosecution had amply established those elements. But did the prosecution sufficiently establish conspiracy among the appellants? Appellants Bumagat and Raul Ybaez question the finding of the trial court that there was conspiracy among all the appellants to commit the crime. Bumagat reiterates that since he was not positively identified at the crime scene, he cannot be deemed a conspirator. Raul Ybaez points out since all he did, as per the prosecutions own testimony, was to club Catalina on the shoulder with his firearm, there is no definite showing from his acts that he assented to the killing of Antonio. Instead, all that can be inferred from his act, assuming the prosecution witnesses testified correctly, was the intent to take part in the robbery and nothing more. Thus, he argues that only the actual killers of Antonio should be held liable. There is conspiracy when two or more persons agree to commit a felony and decide to commit it.[73] Conspiracy as a mode of committing a crime must be proved separately from and with the same quantum of proof as the offense itself, but from its essential features of secrecy and concealment, it need not be proved by direct evidence. Instead, it is sufficient for conspiracy to be inferred from the conduct of the accused before, during, and after the commission of the felony, showing they had acted with a common purpose and design.[74] Stated differently, the rule is that conviction is proper upon proof that the accused acted in concert, each of them doing his part to fulfill the common unlawful design, each doing a part so that their combined acts, though apparently independent of each other, were, in fact, connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment.[75] In such a case, the act of one becomes the act of all and each of the accused will be deemed equally guilty of the crime committed.[76] In the present case, Catalina saw Abes, Bonto, and the Ybaez brothers standing in front of the Calaycays store just as she and Antonio arrived from the public market on board their jeep. At the

street corner stood Silvano, Jr., and Bumagat. All six were armed with short firearms. Abes and Raul Ybaez approached Catalinas side of the jeep, while Bonto and Saldo Ybaez went over to Antonios side. Abes declared the hold-up and grabbed Catalinas bag. When Catalina resisted, Abes fired at her, while Raul Ybaez struck her with the handgun he was carrying. When Antonio tried to go to her assistance, Bonto shot him, while Saldo Ybaez stabbed him several times in the back. All the while, Silvano, Jr., and Bumagat acted as look-outs in the street corner. After the robbery was accomplished, with Antonio Calaycay lying dying on the ground from his injuries, Silvano, Jr., told Abes to hurry up and follow him and all the appellants left together. Given this factual backdrop, it cannot be said that appellants Bumagat and Raul Ybaez just happened to be at the scene of the crime. It taxes ones credulity to say they did not share the common purpose of their co-accused in the commission of an offense. In striking Catalina with his handgun, while Abes was grabbing her bag, Raul Ybaez clearly cooperated in and labored towards the same purpose as the rest of the appellants, which is to rob their victims of cash and valuables. Appellant Bumagat acted as one of two look-outs before and while the robbery was in progress. He facilitated the gangs getaway. Both Raul Ybaez and Bumagat fled the crime scene together with the other appellants, leaving as they did together. All these prove beyond reasonable doubt the existence of conspiracy among all the appellants. As a rule, whenever homicide has been committed as a consequence of or on the occasion of the robbery, all those who took part as principals in the robbery will also be held guilty as principals of the special complex crime of robbery with homicide although they did not actually take part in the homicide, unless it clearly appears that they endeavored to prevent the homicide.[77] In the case at bar, there is absolutely no showing that either Raul Ybaez or Bumagat tried to prevent the fatal stabbing and shooting of Antonio Calaycay while Catalina Calaycay was being divested of her bag containing money and other valuables. Thus, the trial court did not err in holding that the cooperative acts of the appellants, pursuing their common criminal purpose render them equally liable as conspirators in the offense of robbery with homicide. However, we cannot agree that the death penalty be imposed on appellants. Appellant Bonto contends that it was error for the trial court to sentence them to capital punishment, considering that the generic aggravating circumstance of band was not alleged in the Information. The Solicitor General agrees, and submits that aggravating circumstances not alleged in the charge sheet could not be appreciated so as to raise the imposable penalty to death. We find merit in their contention and submission. The crime of robbery with homicide is punishable by reclusion perpetua to death under Article 294 (1) of the Revised Penal Code. Absent any aggravating or mitigating circumstance, the lower penalty, which is reclusion perpetua, should be imposed.[78] As to damages awarded by the trial court, modification is in order. Civil indemnity ought to be awarded to the heirs of the deceased Antonio Calaycay. For when death occurs as a result of a crime, the heirs of the deceased are entitled to the amount of P50,000.00 as indemnity ex delicto for the death of the victim, without need of further evidence or proof of damages.[79] The amount of P320,300.00 was awarded by the trial court as actual damages, which include: the hospital bill from the De La Salle University Medical Center for P1,300.00, the funeral service for

the victim in the amount of P40,000.00, a memorial lot for the victim at P180,000.00, and expenses for the wake in the sum of P8,000.00. However, the record discloses that only the amount of P40,000.00 for the funeral services of the deceased is supported by a receipt.[80] To be entitled to an award of actual damages, it is necessary to prove the actual amount of the loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable by the injured party,[81] which usually means official or valid receipts. Hence, we agree that the award of actual damages here should be reduced to P131,000.00 only, consisting of the P91,000.00 cash lost during the robbery and the P40,000.00 incurred for funeral services. In addition, however, we find it proper that temperate damages be awarded. Where the Court finds that some pecuniary loss has been incurred but the amount cannot be proved with certainty,[82] such as for medical services and the wake, temperate damages are appropriately given. Thus, in People v. Solamillo,[83] which involved robo con homicidio, the computation in People v. Abrazaldo,[84] fixing temperate damages at P25,000.00, which is half the amount of the indemnity ex delicto, was affirmed. We sustain also the award of P240,000.00 for loss of earning capacity, based on the trial courts computation. The award of P50,000.00 as exemplary damages is likewise justified, to stress the need for deterrence against the use of firearms, particularly unlicensed ones. Finally, it follows that the award of attorneys fees must also be affirmed. WHEREFORE, the decision of the Regional Trial Court of Bacoor, Cavite, Branch 89, dated September 30, 1998, in Criminal Case No. B-94-293 finding appellants Roberto Bonto y Mendoza, Ricarte Bumagat y Ordoa, Simeon Silvano, Jr. y Gutierrez, Raul Ybaez y Acebes, and Saldo Ybaez y Acebes GUILTY beyond reasonable doubt of Robbery with Homicide is AFFIRMED with MODIFICATION. The death penalty imposed on them is hereby REDUCED TO RECLUSION PERPETUA. They are jointly and severally ORDERED to pay private complainant CATALINA CALAYCAY, widow of the late Antonio Calaycay, the sums of P131,000.00 as actual damages, P240,000.00 for loss of earning capacity, P50,000.00 as civil indemnity, P50,000.00 as moral damages, P25,000.00 as temperate damages and P50,000.00 as attorneys fees, as well as the costs. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. 148145-46 July 5, 2004 PEOPLE OF THE PHILIPPINES, appellee, vs. FELIX VENTURA y QUINDOY and ARANTE FLORES y VENTURA, appellants. DECISION PER CURIAM: On automatic appeal1 before this Court is the Decision of the Regional Trial Court of Negros Occidental, Branch 50, finding appellants Felix Ventura (Ventura) and Arante Flores (Flores) guilty beyond reasonable doubt of Murder in Criminal Case No. 00-20692 and Attempted Murder in Criminal Case No. 00-20693. The accusatory portion of the Information for Murder in Criminal Case No. 00-20692 reads as follows: That on or about the 23rd day of February, 2000 in the City of Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, conspiring, confederating and acting in concert, without any justifiable cause or motive, with intent to kill and by means of treachery and evident premeditation, accused Felix Q. Ventura armed with a .38 Caliber Home-made Revolver and Arante V. Flores armed with a bladed weapon, and by taking advantage of their superior strength, did, then and there willfully, unlawfully and feloniously assault, attack and stab with bladed weapon one Aileen Bocateja y Peruelo, thereby inflicting upon the person of the latter the following wounds, to wit: Cardio respiratory arrest Hemothorax stab wounds which wounds were the direct and immediate cause of the death of said victim, to the damage and prejudice of the heirs of the latter. That the crime was committed with the aggravating circumstances of dwelling, night time and with the use of an unlicensed firearm. Act contrary to law.2 (Emphasis supplied) The accusatory portion of the Information for Frustrated Murder in Criminal Case No. 00-20693 reads as follows: That on or about the 23rd day of February, 2000 in the City of Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, conspiring, confederating and mutually helping each other, without any justifiable cause or motive, accused Felix Q. Ventura armed with a .38 Caliber Homemade Revolver and Arante Flores y Ventura armed with a bladed weapon, with intent to kill and by means of treachery and evident premeditation, and abuse of superior strength, did, then and there willfully, unlawfully and feloniously assault, attack and stab with said bladed weapon one Jaime Bocateja, thereby causing upon of the latter the following wounds, to wit: multiple stab wounds #1 Posterior axillary area right #2 Posterior axillary area left with minimal hemothorax lacerated wound right parietal area OPERATION PERFORMED: Exploration of wound right parietal for removal of foreign body

thus performing all the acts of execution which would have produced the crime of murder as a consequence, but which nevertheless, did not produce it by reason of some cause or accident independent of the will of the perpetrator, that is, due to the timely and able medical assistance, which saved the life of the victim and the victim was able to escape. That the crime was committed with the aggravating circumstances of dwelling, night time, and with the use of an unlicensed firearm. Act contrary to law.3 (Emphasis supplied) When arraigned, appellants pleaded not guilty to both charges.4 The two criminal cases were consolidated following which they were jointly tried.5 The spouses Jaime and Aileen Bocateja were, in the early hours of February 23, 2000, fast asleep in their room on the ground floor of their two-storey house at Alunan-Yulo in Bacolod City, Negros Occidental. The room had a glass wall with a glass sliding door which was closed but not locked. The kitchen light was open, as was the light in the adjoining room where the couple's young children, Jummylin and Janine, were sleeping. Their niece, Aireen Bocateja, and Jaime's elder daughter, Rizza Mae, were asleep in their rooms on the second floor.6 At around 2:00 a.m.,7 Jaime was roused from his sleep by appellant Ventura who, together with his nephew appellant Flores, had stealthily entered the couple's room after they gained entry into the house by cutting a hole in the kitchen door. As established by the testimonial and object evidence for the prosecution, the following transpired thereafter: Appellant Ventura pointed a revolver at Jaime's face, announced a hold-up, hit Jaime on the head with the gun and asked him for his keys. 8 When appellant Ventura struck him again, Jaime called out for help and tried to grab the revolver. The two men then struggled for possession of the gun. As Jaime almost succeeded in wresting possession of the gun from him, appellant Flores shouted to appellant Ventura to stab Jaime. Using the knife he was carrying, appellant Flores stabbed Jaime three times. Jaime thereupon released the gun, threw a nearby plastic stool at the jalousy glass window causing it to break and cried out for help.9 In the meantime, Aileen who had been awakened, began shouting for help as she saw her husband in mortal danger. Appellant Flores stabbed her, however, with his knife, and although Aileen tried to defend herself with an electric cord, appellant Flores continued stabbing her.10 Awakened by the commotion, Aireen descended the stairs and saw the knife wielding appellant Flores whom she recognized as a former employee of the butcher shop of the Bocataje spouses. Pleading with appellant Flores not to harm her, Aireen ran back upstairs into Rizza Mae's room, and the two called to their neighbors for help.11 Appellants Ventura and Flores thereupon fled the Bocateja house,12 bringing nothing with them.13 Soon members of the Central Investigation Unit (CIU) of the Philippine National Police (PNP) arrived in response to a flash report.14 Some of the police officers took the spouses to the Western Visayas Regional Hospital,15 while other elements of the CIU team intercepted appellants Ventura and Flores who were being pursued by neighbors of the spouses at the corner of Araneta-Yulo. Recovered from appellant Ventura was a .38 caliber revolver with five (5) live bullets, and from appellant Flores a blood stained knife16 measuring 14 inches from tip to handle with a 10-inch blade.17 Shortly after their arrest, appellants were interviewed by reporters from Bombo Radio to whom they admitted responsibility for stabbing Jaime and Aileen. In response to questions from the reporters, appellant Ventura explained that he suspected his wife was carrying on an affair with Jaime.18 In the ocular inspection of the Bocateja residence, the CIU team found the spouses' room in disarray, with some cabinets opened and blood splattered all over the floor, the bed and the ceiling. 19

Aileen eventually died in the hospital on the same day of the commission of the crime.20 Dr. Luis Gamboa, City Health Officer of Bacolod City who conducted the autopsy of her body, found that she suffered a hack wound on her face and four stab wounds on her body, three at the chest and one at the back of the right shoulder, all caused by a sharp bladed instrument, such as the knife recovered from appellant Flores. One of the stab wounds penetrated Aileen's chest near the left nipple, the intercoastal space and the middle of her right lung causing internal hemorrhage and ultimately resulting in her death.21 Jaime who was hospitalized for a total of six days, was treated by Dr. Jose Jocson,22 who certified that he sustained the following non-lethal injuries: 23 Multiple Stab Wounds #1 Posterior Axillary Area Right #2 Posterior Axillary Area Left with Minimal Hemothorax Lacerated Wound Right Parietal Area24 From the evidence for the defense consisting of the testimonies of appellants Ventura and Flores and Primitiva Empirado, the following version is culled: Four days after February 13, 2000 when appellant Ventura arrived in Negros Occidental from Manila where he had been working as a security guard,25 he noticed that his wife, Johanna, who had previously been employed as a house helper of the Bocateja spouses, was wearing a new ring. When he confronted her, she said that it came from Jaime who was courting her, and that it was because Jaime's wife, Aileen, had discovered their illicit relationship that she had been dismissed from the Bocateja household. Incensed at the revelation, he slapped his wife whereupon she left the conjugal home.26 On February 22, 2000, Johanna returned to the conjugal home in Barangay Alegria, Municipality of Murcia, Negros Occidental to get her things. After a verbal confrontation with her husband, she left to find work in Kabankalan, Negros Occidental. This was the last time that Johanna and appellant Ventura saw each other.27 That same day, appellant Flores visited his uncle-appellant Ventura. The two spoke at length and appellant Flores, who had previously worked for a day at the meat shop of the Bocateja spouses, confirmed that Johanna and Jaime were having an affair.28 Since appellant Flores knew where the Bocateja spouses lived, appellant Ventura asked him to go with him to their residence so he could confront Jaime about his affair with Johanna.29 Appellants, armed with an unlicensed revolver and a knife, thus repaired to the Bocateja residence still on the same day, February 22, 2000, arriving there at around 11:00 p.m. They were not able to immediately enter the premises, however. After boring a hole through the kitchen door with the knife, appellants entered the Bocateja residence at 2:00 a.m. of the next day, February 23, 2000.30 Once inside, appellants entered the room of the Bocateja spouses through the unlocked sliding door. Appellant Ventura woke Jaime up, confronted him and told him to stop his relationship with Johanna. Jaime fought back, and he and appellant Ventura grappled for possession of the latter's gun.31 Soon after, Aileen woke up, screamed for help, and began throwing things at appellant Flores whom she attempted to strangle with an electrical extension cord. Unable to breathe, appellant Ventura stabbed Aileen twice with his knife. And seeing that Jaime had wrested control of the gun from appellant Ventura, appellant Flores also stabbed Jaime.32 Since appellants had not intended to kill Aileen or stab Jaime, they fled in the course of which Jaime began shooting at them with a 9 mm pistol. Appellants were eventually intercepted by policemen who placed them under arrest.33 Interviewed by the media after his arrest, appellant Ventura stressed that he just wanted to confront Jaime about the latter's relationship with appellant's wife, Johanna.34 By the appealed Decision of December 15, 2000, the trial court disposed as follows:

FOR ALL THE FOREGOING, the Court finds the accused FELIX VENTURA y QUINDOY and ARANTE FLORES y VENTURA GUILTY beyond reasonable doubt as Principals by Direct Participation of the crime of ATTEMPTED MURDER as alleged in Criminal Information No. 0020693 with the aggravating circumstances of evident premeditation, dwelling, nighttime and the breaking of door to gain entrance to the house and with no mitigating circumstance. Accordingly, they are sentenced to suffer the penalty of Reclusion Temporal in its maximum period. Applying the Indeterminate Sentence Law, they shall serve a prison term of from Eight (8) years of Prision Mayor as Minimum to Eighteen (18) years of Reclusion Temporal as Maximum. The Court also finds the two (2) above-named accused GUILTY as Principal[s] by Direct participation for the crime of Murder as alleged in Criminal Information No. 00-20692 qualified by abuse of superior strength. The aggravating circumstances of dwelling, nighttime and by the breaking of a door are present in the commission of the crime. There is no mitigating circumstance. The accused, therefore, are meted the Supreme penalty of DEATH. By way of civil liability, the accused are solidarily ordered to pay the heirs of Aileen Bocoteja the sum of P50,000.00 as death indemnity. The accused are likewise held solidarily liable to pay Jaime Bocateja the sum of P100,000.00 as moral damages and the sum of P20,000.00 as exemplary damages.35 (Emphasis supplied) In their Brief,36 appellants contend that the trial court erred (1) in convicting them despite the failure of the prosecution to prove their guilt beyond reasonable doubt; (2) in considering abuse of superior strength as a qualifying circumstance in Criminal Case No. 00-20892; (3) in considering evident premeditation as a qualifying circumstance in Criminal Case No. 00-20893; and (4) in considering the aggravating circumstances of breaking of door and nocturnity in both cases.37 Appellants argue that, at most, they can only be convicted of attempted homicide for the stabbing of Jaime and homicide for the fatal stabbing of Aileen.38 From a considered review of the records and applicable jurisprudence, the instant appeal fails. The essence of evident premeditation is that the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent during a space of time sufficient to arrive at a calm judgment.39 For it to be appreciated, the following must be proven beyond reasonable doubt: (1) the time when the accused determined to commit the crime; (2) an act manifestly indicating that the accused clung to his determination; and (3) sufficient lapse of time between such determination and execution to allow him to reflect upon the circumstances of his act.40 By appellants' argument, even if appellant Ventura became jealous when he learned of the illicit affair between his wife and Jaime, it is not, by itself, sufficient proof that he determined to kill the latter; that with Jaime's testimony that appellant had announced a "hold-up," they, at most, intended to rob, but not kill the spouses; that their only purpose was to confront Jaime regarding his supposed affair with appellant Ventura's wife, Johanna; and that if they had truly intended to kill Jaime, then appellant Ventura would not have bothered to awaken him, but would just have shot him in his sleep. These assertions run counter to the established facts and are debunked by appellants' own admissions. Appellants admittedly arrived at the Bocateja residence at 11:00 p.m. and surreptitiously entered therein at 2:00 a.m. At that time, the surrounding premises were decidedly dark, and all the members of the household were fast asleep. Armed with a gun and a knife, they proceeded directly to the bedroom of the spouses, where appellant Ventura woke up Jaime. These actuations are not of those seeking parley, but instead betray an unmistakable intention to kill, not merely confront, Jaime. Indeed, when pressed during cross-examination to explain why he chose to "confront" Jaime under the foregoing circumstances, appellant Ventura became evasive and did not give a clear answer:

Q Mr. Witness, you said that your purpose in going to the house of Jaime was only to confront him. My question is, why is it that you went there at 11:00 o'clock in the evening and not in the morning so that you will have all the opportunity to confront him? A Because at that time, I was not on my proper frame of mind. Q Why, is it not a fact that as early as February 17, 2000, you were already told by your wife that there was that relationship with Jaime Bocateja and your wife? A Yes, sir. Q Why did you not immediately confront Mr, Bocateja after that day or February 17? WITNESS: A On that day, I don't know Jaime Bocateja. xxx ATTY. ORTIZ: Q On February 22. So that you did not ask your wife where the place of Jaime Bocateja was at that time you were by him on February 22, 2000? A Johanna did not tell me the place of Jaime Bocateja. Q Why did you not ask her where the house is, at that time? A What she told me was that, she is working in Bacolod City. Q Mr. Witness, you had from February 17 to 22, a number of days to confront Mr. Jaime Bocateja. Did you not confront your wife or perhaps ask her about the place or where this Jaime Bocateja was at that time and have the intention to confront him, if that was really your intention to confront him? WITNESS: A No, I did not ask her because we had a confrontation and the next day, February 17, she left. Q Of course, when you arrived at the house of the Bocateja [spouses] at 11:00 o'clock in the evening, you were armed at that time, is that right, you and your companion, Arante Flores? A Yes, sir. Q What was that weapon at that time? A .38 caliber revolver. xxx ATTY. ORTIZ: Q Mr. Witness, if your intention was only to confront Mr. Jaime Bocateja, why is it that you did not wait or you did not come to that place earlier so that at that time, Jaime Bocateja was still awake or perhaps waited until the next day? COURT: Already answered. He said that he was not at the proper frame of his mind.41 (Emphasis supplied) Cross-examined on the same point, appellant Flores was equally evasive, but eventually revealed that the timing and method of entry were purposely chosen to avoid detection by either the Bocateja family or their neighbors: Q You arrived in the house of Bocateja at about 11:00 o'clock is that right? A Yes, sir. Q And your purpose in going to the house of Bocateja was only to confront Jaime Bocateja about his relationship with Johanna is that right? A Yes, sir. ATTY. ORTIZ: Q Why did you wait Mr. Witness why did you and the other accused Felix Ventura wait for three (3) hours for you to confront him in his house? WITNESS: A Because we were not able to enter the door right away because the door could not be opened.

Q My question Mr. Witness, is this you ate your supper at Libertad market at about 8:00 o'clock why did you not go to the house of Jaime Bocateja at 9:00 o'clock immediately after supper? At that time when the members of the family were yet awake?A We stayed at Burgos market and then from Burgos to Libertad we only walk and from Libertad to the house of Bocateja. ATTY. ORTIZ: Q You will admit Mr. Witness at the time you left your place at Brgy. Alegria you were already armed, is that right? WITNESS: A Yes, sir. Q Your uncle Felix Ventura was armed with [a] .38 caliber revolver, is that right? A Yes, sir. Q And you were also armed with a bladed weapon is that correct? A Yes, sir. Q Why do you have to bring this weapon Mr. Witness? A We brought this weapon just to frighten Jaime Bocateja during [the] confrontation. ATTY. ORTIZ: Q Are you saying Mr. Witness if your purpose was only to confront him you have to bring this [sic] weapons? WITNESS: A Yes, sir. Q When you arrived at the house of Jaime Bocateja about 11:00 o'clock. . . by the way when did you arrive at the house of Jaime Bocateja? A 11:00 in the evening. Q Of course you did not anymore knock at the door Mr. Witness? A No, sir. Q Or you did not also call any member of the family to open [the door for] you, is that right? WITNESS: A No, sir. ATTY. ORTIZ: Q As a matter of fact you only broke the gate Mr. Witness in order to enter the compound of the Bocateja family? A We scaled over the gate. Q And why do you have Mr. Witness to go over the fence and open a hole at the kitchen for you to confront Mr. Jaime Bocateja if that was your purpose? A The purpose of my uncle was just to confront Jaime. Q And when you confront, are you saying that you cannot any more knock at the door, perhaps call any member of the family inside the house? WITNESS: A No, sir. ATTY. ORTIZ: Q Why Mr. Witness, Why? A We did not call or knock at the person inside the house because it will make noise or calls and alarm to the neighbors.42 (Emphasis and underscoring supplied) To be sure, all the elements of evident premeditation were clearly established from the lips of appellants themselves. Thus, on clarificatory questioning by the trial court, appellant Ventura testified: COURT: Q I recall that you left Murcia [at] 4:00 o'clock. Is that morning or afternoon? A I left Murcia at 4:00 o'clock in the afternoon.

Q 4:00 o'clock from Alegria then to Alangilan, then to Bacolod, is that correct? A Yes, sir. Q From Alangilan to Bacolod, what mode of transportation did you make? A From Alegria to Alangilan, we only hiked and then from Alangilan to Bacolod we took the passenger jeepney. Q From Alegria to Alangilan, how long did it take you to walk? How many kilometers? A Four (4) kilometers. Q And, I assume that while you were walking, you were talking with Arante Flores, your nephew, about the plans to go to the house of Jaime Bocateja? A Yes, sir. COURT: Q By the way, what did you do at Alangilan? A I went there because my clothes were at my sister's house. Q So, what time did you arrive in [Bacolod]? A We arrived here in [Bacolod] late in the evening. Q I assume that you disembarked at Burgos Market? A Yes, sir. Q And you just walked from Burgos Market to Libertad Baybay to the house of Jaime Bocateja? A Yes, sir. Q It took you about thirty (30) [minutes] to one (1) hour, more or less? A More than one (1) hour. Q And during this time, you were talking again with Arante Flores [about] the course of action that you will take once a confrontation takes place with Jaime Bocateja? WITNESS: A Yes, I asked him the location of 3rd Road since I do not know the house of Jaime Bocateja. COURT: Q I assume that the front main door of the house was close[d] at that time, correct? A Yes, sir. Q You scaled that door, the front main door of the gate? A Yes, sir, we scaled the gate. Q You were not able to open it but you simply scaled, you went over? A Yes, sir. Q And you said yet, you destroyed the main door of the house. Can you tell the Court, how did you destroy the main door of the house? A No, the kitchen door, sir. COURT: Q How were you able to destroy it? WITNESS: A We used the knife in unlocking the door. We made a hole. Q You made a hole and with the use of your hand, you were able to unlock the inside lock because of the hole? A Yes, sir. Q And I assume that it took you twenty (20) thirty (30) minutes to make that hole? A Yes, sir.43 (Emphasis supplied) The immediately foregoing narration was echoed by appellant Flores who gave the following testimony on direct examination: ATTY. JACILDO: Q So from Brgy. Alegria where did you proceed? WITNESS:

A We proceeded to Brgy. Alangilan. Q This Brgy. Alegria how far is it from Brgy. Alangilan? A The distance between Brgy. Alegria to Brgy. Alangilan is about three (3) kilometers. Q So, what means of transportation did you used in going to Alangilan? A We walked in going to Alangilan. Q When you arrived at Brgy. Alangilan what did you do? WITNESS: A We went to our aunt's house. ATTY. JACILDO: Q From Alangilan where did you proceed? A In Alangilan, we stayed at the house of my aunt and then we proceeded to Bacolod. Q So what time did you arrived [sic] in Bacolod? A 8:00 o'clock in the evening. Q When you arrived in Bacolod, what did you do? A We ate our supper at Libertad Market. Q After eating your dinner at Libertad, what did you do? A After eating our supper, we proceeded to the house of Jaime Bocateja. ATTY. JACILDO: Q What time did you arrived [sic] at the house of Jaime? WITNESS: A 11:00 o'clock in the evening. Q When you arrived at the house of Jaime, what did you do? A We enter[ed] the gate of their house. Q Please continue? A Then, we opened the door. Q And then? A We reach[ed] [the Bocateja residence] at around 11:00 o'clock and we tried to open the door but we could not open the door immediately. We made a hole so that we can get in the house. We entered the house at about 2:00 o'clock in the morning the following day.44 (Emphasis supplied) Undoubtedly, the accounts of appellants evince not only their resolve to kill Jaime, but the calm and methodical manner by which they sought to carry out his murder. As pointed out by the Solicitor General, unless shown to be customary,45 appellants' act of arming themselves with a gun and a knife constitutes direct evidence of a careful and deliberate plan to carry out a killing. Consider the following ruling of this Court inPeople v. Samolde:46 As stated earlier, accused-appellant and Armando Andres tried to borrow Cabalin's tear gas gun. This attempt by the accused-appellant and his co-accused to arm themselves prior to the commission of the crime constitutes direct evidence that the killing of Feliciano Nepomuceno had been planned with care and executed with utmost deliberation. From the time the two agreed to commit the crime to the time of the killing itself, sufficient time had lapsed for them to desist from their criminal plan had they wanted to. Instead, they clung to their determination and went ahead with their nefarious plan. x x 47 (Emphasis supplied) From the time appellants left Murcia, Negros Occidental, after they had resolved to go to confront Jaime, to the time they entered the Bocateja residence in Bacolod City, ten hours had elapsed sufficient for appellants to dispassionately reflect on the consequences of their actions and allow for their conscience and better judgment to overcome the resolution of their will and desist from carrying out their evil scheme, if only they had desired to hearken to such warnings. In spite of this, appellants evidently clung to their determination to kill Jaime.

That evident premeditation was established through the testimonies of appellants and not by those of the prosecution witnesses is of no moment. While appellants could not have been compelled to be witnesses against themselves,48 they waived this right by voluntarily taking the witness stand. Consequently, they were subject to cross-examination on matters covered by their direct examination.49 Their admissions before the trial court constitute relevant and competent evidence which the trial court correctly appreciated against them. 50 Although he admitted stabbing Jaime, appellant Flores sought to justify his actions by claiming that he was impelled by the need to prevent Jaime from shooting his uncle, appellant Ventura. This pretense does not impress. To successfully claim that he acted in defense of a relative, the accused must prove the concurrence of the following requisites: (1) unlawful aggression on the part of the person killed or injured; (2) reasonable necessity of the means employed to prevent or repel the unlawful aggression; and (3) the person defending the relative had no part in provoking the assailant, should any provocation have been given by the relative attacked.51 Of these, the requisite of "unlawful aggression" is primary and indispensable without which defense of relative, whether complete or otherwise, cannot be validly invoked.52 Not one of the foregoing requisites of defense of a relative is present. From all accounts, it was appellants who initiated the unlawful aggression, and it was the victim Jaime who acted in self defense. Hence, neither the justifying circumstance of defense of a relative53 nor the special mitigating circumstance of incomplete defense of a relative54 may be appreciated in appellant Flores' favor. While appellant Ventura did not directly participate in the stabbing of Jaime, the trial court correctly held both appellants collectively liable for the attempt on the latter's life since they were shown to have acted in conspiracy with each other. There is a conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.55Where conspiracy has been adequately proven, as in these cases, all the conspirators are liable as co-principals regardless of the extent and character of their participation because, in contemplation of law, the act of one is the act of all.56 By stabbing Jaime Bocateja pursuant to their pre-conceived plot, appellants commenced the commission of murder directly by overt acts. Despite their efforts, however, they failed to inflict a mortal wound on Jaime, hence, their liability only for attempted murder.57 With respect to the death of Aileen, the trial court found both appellants guilty of murder qualified not by evident premeditation but by taking advantage of superior strength, 58 to wit: The killing of Aileen Bocateja is qualified by the aggravating circumstance of abuse of superior strength. The accused Arante Flores who delivered the stabbing blow is big and strong, standing about five feet and six (5'6") inches tall. His weapon was a 14 inch dagger. Aileen Bocateja [stood] only about five (5'0") feet tall. The disparity of their strength is enormous.59(Emphasis supplied) To take advantage of superior strength means to purposely use excessive force out of proportion to the means of defense available to the person attacked.60 The appreciation of this aggravating circumstance depends on the age, size and strength of the parties, and is considered whenever there is a notorious inequality of forces between the victim and the aggressor, assuming a superiority of strength notoriously advantageous to the aggressor, which is selected or taken advantage of by him in the commission of the crime.61 Appellants "agree with the trial court that accused-appellant Arante Flores is taller, and probably stronger than the victim Aileen Bocateja because of their difference in sex as well as the fact that the accused appellant Flores was armed at that time x x x."62 Nevertheless, they argue that Aileen's death was not attended by abuse of superior strength since: (1) though ultimately unsuccessful, she was able to put up a defense against appellant Flores; and (2) the prosecution

failed to show that appellant Flores deliberately took advantage of the disparity in their size and sex in order to facilitate the commission of the crime. Unlike in treachery, where the victim is not given the opportunity to defend himself or repel the aggression,63 taking advantage of superior strength does not mean that the victim was completely defenseless. Abuse of superiority is determined by the excess of the aggressor's natural strength over that of the victim, considering the momentary position of both and the employment of means weakening the defense,although not annulling it.64 Hence, the fact that Aileen attempted to fend off the attack on her and her husband by throwing nearby objects, such as an electric cord, at appellant Flores does not automatically negate the possibility that the latter was able to take advantage of his superior strength. On the contrary, this Court in a very long line of cases has consistently held that an attack made by a man with a deadly weapon upon an unarmed and defenseless woman constitutes the circumstance of abuse of that superiority which his sex and the weapon used in the act afforded him, and from which the woman was unable to defend herself.65 Thus, in People v. Molas,66 where the accused was convicted of murder for stabbing to death two women and an eight year old boy, this Court discoursed: While treachery was not appreciated as a qualifying circumstance against Molas, the killing of the three victims was raised to murder by the presence of the qualifying circumstance of abuse of superior strength. There was abuse of superior strength when Molas inflicted several mortal wounds upon Soledad. Molas, besides being younger and stronger, was armed with a weapon which he used in seriously wounding her. That circumstance was also present when he hacked eight-year old Abelaro and also Dulcesima who, besides being a woman of lesser strength was unarmed.67 (Emphasis supplied) And in the more recent case of People v.Loreto,68 this Court opined: The contention of accused-appellant is barren of merit. Article 14, paragraph 15 of the Revised Penal Code provides that a crime against persons is aggravated by the accused taking advantage of superior strength. There are no fixed and invariable rules regarding abuse of superior strength or employing means to weaken the defense of the victim. Superiority does not always mean numerical superiority. Abuse of superiority depends upon the relative strength of the aggressor vis--vis the victim. There is abuse of superior strength even if there is only one malefactor and one victim. Abuse of superiority is determined by the excess of the aggressor's natural strength over that of the victim, considering the position of both and the employment of means to weaken the defense, although not annulling it. The aggressor must have advantage of his natural strength to insure the commission of the crime. In this case, accused-appellant was armed with a knife and used the same in repeatedly stabbing Leah, a young wisp of a girl, no less than eighteen times after overtaking her in the sala of Dan's house. Irrefragably, then, accused-appellant abused his superior strength in stabbing Leah. In a case of early vintage [People v. Guzman, supra. at 1127], the Court held that: There is nothing to the argument that the accused was erroneously convicted of murder. An attack made by a man with a deadly weapon upon an unarmed and defenseless woman constitutes the circumstance of abuse of that superiority which his sex and the weapon used in the act afforded him, and from which the woman was unable to defend herself (U.S. vs. Camiloy, 36 Phil. 757; U.S. vs. Consuelo, 13 Phil. 612; People vs. Quesada, 62 Phil. 446). The circumstance of abuse of superior strength was, therefore, correctly appreciated by the trial court, as qualifying the offense as murder.69 (Emphasis supplied; citations omitted) By deliberately employing a deadly weapon against Aileen, appellant Flores clearly took advantage of the superiority which his strength, sex and weapon gave him over his unarmed victim. As for appellant Flores' claim of self-defense, it cannot be sustained. As in defense of a relative, one claiming self defense must prove by clear and convincing evidence70 both unlawful aggression

on the part of the person killed or injured and reasonable necessity of the means employed to prevent or repel the unlawful aggression. As a third requisite, he must also prove lack of sufficient provocation on his part.71None of these requisites was shown to be present. As expounded by the trial court: Arante declared that Aileen panicked and screamed and was hitting him with an extension cord so he stabbed her. Arante was suggesting that had Ai[l]een remained cool, composed and friendly, she would not have died. This perverted reasoning need not detain the Court. There was an on-going aggression being committed inside her house and within the confines of her room, hence, Aileen's actuations were perfectly just and legitimate.72 As adverted to earlier, the trial court, citing People v. Dueno,73 did not consider evident premeditation as having aggravated the killing of Aileen since she was not the intended victim of appellants' conspiracy. Upon further scrutiny, however, this Court finds that this aggravating circumstance should have been appreciated in connection with Aileen's murder. Jurisprudence is to the effect that evident premeditation may be considered as present, even if a person other than the intended victim was killed, if it is shown that the conspirators were determined to kill not only the intended victim but also anyone who may help him put a violent resistance.74 Here, it was established that upon seeing her husband being attacked by appellants, Aileen immediately called for help and hurled objects at appellant Flores. And it was because of this passionate defense of her husband that appellant Flores hacked at her face and stabbed her four times. These factual circumstances are analogous to those in People v. Belga,75 where this Court had occasion to state that: While it would seem that the main target of the malefactors were Alberto and Arlene Rose, this does not negative the presence of evident premeditation on the physical assault on the person of Raymundo Roque. We have established jurisprudence to the effect that evident premeditation may be considered as present, even if a person other than the intended victim was killed (or wounded, as in this case), if it is shown that the conspirators were determined to kill not only the intended victim but also anyone who may help him put a violent resistance. Here, Raymundo Roque provided such violent resistance against the conspirators, giving the latter no choice but to eliminate him from their path.76 (Emphasis and underscoring supplied, citations omitted) Thus, while appellants' original objective may have only been the killing of Jaime, the trial court correctly held both of them responsible for the murder of Aileen. Co-conspirators are liable for such other crimes which could be foreseen and are the natural and logical consequences of the conspiracy.77 In Pring, et al. v. Court of Appeals,78 this Court held: While the acts done by the petitioners herein vary from those of their co-accused, there is no question that they were all prompted and linked by a common desire to assault and retaliate against the group of Loreto Navarro. Thus, they must share equal liability for all the acts done by the participants in such a felonious undertaking. While petitioners herein, Rogelio Pring and Alberto (Roberto) Roxas, on their part, had ganged up Jesus Yumol who belonged to the group of their adversaries by hitting the latter with a bench and a piece of wood, and that it was a certain David Ravago who stabbed the deceased Loreto Navarro, nevertheless, it is a rule that conspirators would necessarily be liable also for the acts of the other conspirators unless such acts differ radically or substantially from that which they intended to commit (People vs. Enriquez, 58 Phil. 536; People vs. Rosario, 68 Phil. 720). The pronouncements made by this Court in the aforecited case of People vs. Enriquez, still serve as the governing rule that should be applied to the case at bar. In the said case, this Court stated: "x x x x x x x x x 'We are of the opinion that this contention is not tenable. The accused had undoubtedly conspired to do grave personal injury to the deceased, and now that the injuries actually inflicted have

resulted in death, they cannot escape from the legal effect of their acts on the ground that one of the wounds was inflicted in a different way from that which had been intended. x x x x x x x x x. 'As has been said by the Supreme Court of the United States, 'If a number of persons agree to commit, and enter upon the commission of the crime which will probably endanger human life such as robbery, all of them are responsible for the death of a person that ensues as a consequence.' (Boyd vs. U.S., 142 U.S. 450; 35 Law. ed. 1077). In United States vs. Patten, the court said: 'Conspirators who join in a criminal attack on a defenseless man with dangerous weapons, knock him down, and when he tries to escape, pursue him with increased numbers, and continue the assault, are liable for manslaughter when the victim is killed by a knife wound inflicted by one of the them during the beating, although in the beginning they did not contemplate the use of a knife.' (42 Appeals, D.C., 239)" Although during the incident in question the aggression committed by the petitioners herein was directed against the other members of the group of Loreto Navarro and not on the deceased, this would not relieve them from the consequence of the acts jointly done by another member of the petitioners' group who stabbed the deceased Loreto Navarro.79 (Emphasis supplied, citations omitted) And in the more recent case of People v. Bisda, et al.,80 this Court held: Each conspirator is responsible for everything done by his confederates which follows incidentally in the execution of a common design as one of its probable and natural consequences even though it was not intended as part of the original design. Responsibility of a conspirator is not confined to the accomplishment of a particular purpose of conspiracy but extends to collateral acts and offenses incident to and growing out of the purpose intended. Conspirators are held to have intended the consequences of their acts and by purposely engaging in conspiracy which necessarily and directly produces a prohibited result, they are, in contemplation of law, chargeable with intending that result. Conspirators are necessarily liable for the acts of another conspirator unless such act differs radically and substantively from that which they intended to commit. As Judge Learned Hand put it in United States v. Andolscheck, "when a conspirator embarks upon a criminal venture of indefinite outline, he takes his chances as to its content and membership, so be it that they fall within the common purposes as he understands them." (Emphasis supplied; citations omitted) Indeed, since they deliberately planned to attack Jaime in the sanctity of his bedroom where his wife Aileen was also sleeping, appellants cannot now claim that the latter's violent resistance was an unforeseen circumstance. Hence, neither of them can escape accountability for the tragic consequences of their actions. In determining appellants' criminal liability, the trial court appreciated the generic aggravating circumstances of dwelling,81 nighttime82 and breaking of door83 in connection with both crimes. Dwelling is considered aggravating because of the sanctity of privacy that the law accords to human abode.84 Thus, it has been said that the commission of the crime in another's dwelling shows greater perversity in the accused and produces greater alarm.85 Here, dwelling was correctly appreciated since the crimes were committed in the place of abode of the victims who had not given immediate provocation.86 Upon the other hand, as pointed out by both appellants and the Solicitor General, the breaking of a door was not alleged in either of the two informations. Thus, the same cannot be appreciated against appellants. On this point, this Court's discussion in People v. Legaspi,87 quoted in the Solicitor General's Brief, is instructive: Nonetheless, it is to be noted that the appreciation by the trial court of the aggravating circumstances of dwelling and nighttime, despite the non-allegation thereof in the Information,

resulted in the imposition of the supreme penalty of death upon accused-appellant. In People v. Gallego (G.R. No. 130603, 338 SCRA 21, August 15, 2000), We had occasion to rule thus: "In People v. Albert (251 SCRA 136, 1995), we admonished courts to proceed with more care where the possible punishment is in its severest form death because the execution of such a sentence is irrevocable. Any decision authorizing the State to take life must be as error-free as possible, hence it is the bounden duty of the Court to exercise extreme caution in reviewing the parties' evidence. Safeguards designed to reduce to a minimum, if not eliminate the grain of human fault ought not to be ignored in a case involving the imposition of capital punishment for an erroneous conviction 'will leave a lasting stain in our escutcheon of justice.' The accused must thence be afforded every opportunity to present his defense on an aggravating circumstance that would spell the difference between life and death in order for the Court to properly 'exercise extreme caution in reviewing the parties' evidence.' This, the accused can do only if he is appraised of the aggravating circumstance raising the penalty imposable upon him to death. Such aggravating circumstance must be alleged in the information, otherwise the Court cannot appreciate it. The death sentence being irrevocable, we cannot allow the decision to take away life to hinge on the inadvertence or keenness of the accused in predicting what aggravating circumstance will be appreciated against him. xxx The principle above-enunciated is applicable to the case at bar. Consequently, we hold that due to their non-allegation in the Information for rape filed against accused-appellant, the aggravating circumstances of nighttime and dwelling cannot be considered in raising the penalty imposable upon accused-appellant from reclusion perpetua to death. xxx It is to be noted carefully that the rule on generic aggravating circumstances has now been formalized in the Revised Rules of Criminal procedure, which took effect on December 1, 2000. Section 8 of Rule 110 now provides that: Sec. 8. Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. Likewise, Section 9 of the same Rule provides: Sec. 9. Cause of the accusation. The acts or omission complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.88(Emphasis supplied) Appellants and the Solicitor General also argue that nocturnity should not have been considered since Jaime himself testified that their bedroom was well-lit and there was light coming from the kitchen and the adjoining bedroom of their children.89 In determining nocturnity, two tests are employed in the alternative: (1) the objective test, under which nighttime is aggravating because the darkness facilitated the commission of the offense; and (2) the subjective test, under which nighttime is aggravating because the darkness was purposely sought by the offender.90 Applying these tests to the established factual circumstances, this Court concludes that nocturnity was correctly appreciated in connection with both crimes. While the bedroom where the crimes occurred was well-lit, the evidence shows that, in furtherance of their murderous intent, appellants deliberately took advantage of nighttime, as well as the fact that the household members were asleep, in order to gain entry into the Bocateja residence. Indeed, their own testimony indicates that while they were already outside the Bocateja house at around 11:00 p.m., they purposely waited until 2:00 a.m. before breaking into the residence so as

not to call the attention of the Bocatejas and/or their neighbors. It is thus clear that appellants deliberately took advantage of the darkness of the night, not to mention the fact that the Bocatejas were fast asleep, to conceal their actions and to facilitate and insure that their entry into the victims' home would be undetected. No mitigating circumstances are present to offset the foregoing aggravating circumstances. While the trial Court noted that appellants were apparently motivated by their belief that Johanna and Jaime were carrying on an illicit relationship, to wit: The accused presented evidence to prove that Jaime Bocateja and Johanna Ventura, wife of the accused Felix Ventura, were maintaining an illicit relationship. The evidence on this point is principally hearsay the alleged admissions made by Johanna of the relationship. There is no doubt, however, that the accused Ventura believes that [his] wife and Jaime Bocateja are clandestine lovers. It is fairly reasonable, in the absence of any evidence to the contrary, that it is Ventura's belief of this illicit relationship which prompted him to confront Jaime Bocateja,91 it nevertheless ruled out passion or obfuscation92 or immediate vindication of a grave offense93 as mitigating circumstances. While jealousy may give rise to passion or obfuscation,94 for the appreciation of this mitigating circumstance it is necessary that the act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity.95 In the same vein, while "immediate" vindication should be construed as "proximate" vindication in accordance with the controlling Spanish text96 of the Revised Penal Code, still this mitigating circumstance cannot be considered where sufficient time elapsed for the accused to regain his composure.97 In these cases, appellant Ventura's suspicions were aroused as early as February 17, almost a week before the stabbing incidents on February 23, when he first confronted his wife about her ring. Moreover, as previously noted, ten hours had elapsed from the time appellants left Murcia, Negros Occidental, weapons in hand, to the time they entered the Bocateja residence in Bacolod City. Within that period appellant Ventura had opportunity to change his clothes at a relatives' house in a neighboring barangay and both appellants were able to take their dinner at the Burgos Market in Bacolod City. They even waited three hours outside the Bocateja residence before carrying out their plan. Without question, sufficient time had passed for appellants' emotions to cool and for them to recover their equanimity. In fine, for stabbing Jaime, appellants are guilty beyond reasonable doubt of attempted murder qualified by evident premeditation with the aggravating circumstances of dwelling and nighttime. However, as pointed out by the Solicitor General, the trial court erred in imposing the sentence of Eight (8) Years of prision mayor as minimum to Eighteen (18) Years of reclusion temporal as maximum. Article 51 of the Revised Penal Code provides that a penalty two degrees lower than that prescribed for the consummated penalty shall be imposed upon the principals in an attempted felony. Under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, the penalty for murder is reclusion perpetua to death. The penalty two degrees lower is prision mayor.98 Applying Section 1 of Act No. 4103,99 as amended, otherwise known as the Indeterminate Sentence Law, and considering the presence of two aggravating circumstances, the proper imposable penalty falls within the range of prision mayor in its maximum period (from Ten (10) Years and One (1) Day to Twelve (12) Years) as maximum and prision correccional (from Six (6) Months and One (1) Day to Six (6) Years) as minimum. Accordingly, this Court hereby sentences appellants to an indeterminate penalty of Six (6) Years of prision correccional as minimum to Twelve (12) Years of prision mayor as maximum. For fatally stabbing Aileen, appellants are guilty beyond reasonable doubt of murder qualified by abuse of superior strength with the aggravating circumstances of evident premeditation, dwelling

and nighttime. As already noted, the penalty for murder is reclusion perpetuato death. Article 63 of the Revised Penal Code provides that when the law prescribes two indivisible penalties, the greater penalty shall be imposed when, in the commission of the deed, one aggravating circumstance is present. Consequently, the trial court's imposition of the supreme penalty of death must be sustained. Three members of the Court maintain their adherence to the separate opinions expressed in People vs. Echegaray100 that Republic Act No. 7659, insofar as it prescribes the penalty of death, is unconstitutional; nevertheless they submit to the ruling of the majority that the law is constitutional and that the death penalty should accordingly be imposed. As regards the civil liability of the appellants, the award of the trial court is hereby modified as follows: In Criminal Case No. 00-20692, the award of P50,000.00 to the heirs of Aileen as civil indemnity for her death is sustained, the commission of the crime by appellants having been duly proven.101 The award of moral damages to her heirs is likewise proper considering that the prosecution presented adequate proof that they suffered mental anguish and wounded feelings.102 However, the amount of moral damages awarded by the trial court is hereby reduced from P100,000.00 to P50,000.00 in line with current jurisprudence.103 It should be borne in mind that the purpose for such award is to compensate the heirs of the victim for the injuries to their feelings and not to enrich them.104 The award of exemplary damages should be increased from P20,000.00 to P25,000.00. Such award is proper in view of the presence of aggravating circumstances.105 Furthermore, considering that counsel for appellants admitted that the heirs of Aileen incurred funeral expenses of P100,000.00106 and such admission has not been shown to have been made through palpable mistake, the same should be awarded as actual damages.107 In Criminal Case No. 00-20692, the trial court did not grant Jaime's claim for P20,000.00 in actual damages for hospitalization expenses since he failed to present any receipts to substantiate the same. Nonetheless, in light of the fact that Jaime was actually hospitalized and operated upon, this Court deems it prudent to award P20,000.00 as temperate damages.108 Moreover, Jaime is also entitled to moral damages in accordance with Article 2219, paragraph 2 of the Civil Code, which this Court hereby awards in the amount of P25,000.00.109Finally, exemplary damages of P25,000.00 are also in order considering that the crime was attended by two aggravating circumstances.110 WHEREFORE, the judgment in Criminal Case No. 00-20693 is hereby AFFIRMED with MODIFICATION. Appellants Felix Ventura and Arante Flores are found GUILTY beyond reasonable doubt of the crime of attempted murder qualified by evident premeditation with the aggravating circumstances of dwelling and nighttime and are hereby sentenced to an indeterminate penalty of Six (6) Years of Prision Correccional as minimum to Twelve (12) Years of Prision Mayor as maximum. Appellants are solidarily ORDERED to pay the victim, Jaime Bocateja, the amounts of: (a) Twenty Thousand Pesos (P20,000.00) as temperate damages; (b) Twenty Five Thousand Pesos (P25,000.00) as moral damages; and (c) Twenty Five Thousand Pesos (P25,000.00) as exemplary damages. The judgment in Criminal Case No. 00-20692 is likewise AFFIRMED with MODIFICATION. Appellants Felix Ventura and Arante Flores are found GUILTY beyond reasonable doubt of murder qualified by abuse of superior strength with the aggravating circumstances of evident premeditation, dwelling and nighttime and are SENTENCED to the supreme penalty of DEATH. Appellants are solidarily ORDERED to pay the heirs of Aileen Bocateja the amounts of: (a) Fifty Thousand Pesos (P50,000.00) as civil indemnity; (b) One Hundred Thousand Pesos (P100,000.00)

as actual damages; (c) Fifty Thousand Pesos (P50,000.00) as moral damages; and (d) Twenty Five Thousand Pesos (P25,000.00) as exemplary damages. Upon the finality of this Decision, and pursuant to Art. 83 of the Revised Penal Code, as amended by Sec. 25 of R.A. No. 7659, let the records of the cases be immediately forwarded to the President of the Philippines for the exercise, at her discretion, of her power to pardon appellants Felix Ventura and Arante Flores. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 135619 January 15, 2004 ADONIS ARADILLOS and ALBINO GALABO, petitioners, vs. COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, represented by the Office of the Solicitor General, respondents. DECISION AUSTRIA-MARTINEZ, J.: For review is the decision dated February 12, 1998 of the Court of Appeals in CA-G.R. CR No. 17316,1 affirming the conviction of petitioners Adonis Aradillos and Albino Galabo of the crime of Frustrated Homicide, with modification as to the penalty and the award of actual and moral damages. An Information was filed before the Regional Trial Court (Branch 10) of Davao City, charging petitioners Aradillos and Galabo with the crime of Frustrated Murder, committed as follows: That on or about February 3, 1992, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, armed with an ax and piece of wood, conspiring, confederating together and helping one another, with intent to kill and taking advantage of their superior strength, willfully, unlawfully and feloniously attacked, assaulted and hacked with said ax and struck with said piece of wood, one Gloria Alviola thereby inflicting upon the latter the following injuries, to wit: COMPOUND FRACTURE, (R) AND (L) FRONTAL AREA 2 TO HACKING WOUND GCS 15 RLS 1

which injuries would cause the death of the said Gloria Alviola, thus performing all the acts of execution which should have produced the crime of Murder as a consequence, but, nevertheless did not produce it by reason of causes independent of his will, that is, by the timely arrival and intervention of complainants brother-in-laws and the able medical assistance rendered to the said Gloria Alviola which prevented her death. CONTRARY TO LAW.2 Petitioners pleaded not guilty to the charge3 and thereafter, trial on the merits ensued. The prosecution and the defense differ in their versions of the incident. The gist of the prosecution evidence is as follows: At around 5:45 in the afternoon of February 3, 1992, Gloria rebuked herein petitioners Aradillos and Galabo when she saw them in the act of cutting the bamboo bridge located on the property of her husband. Thereupon, petitioners chased her and they caught up with her near the house. Galabo then hit her several times with a piece of wood and his carpentry bag causing her to fall down. While Gloria was staggering face down, Aradillos hacked her twice with a carpentry ax, hitting her on the right side of the head and on the forehead. She asked for help from the Visto family, her neighbors, who brought her to the clinic of Dr. Alvarez in Matina, Davao. After Dr. Alvarez gave her first aid treatment, Gloria was advised to go to Davao Medical Center where she was confined in the ICU for four days.4 At the time Gloria reproached petitioners, she was within her bamboo-fenced yard, about ten meters away from them. Her house is located five to six meters away from the place where she was standing. Her children, Rosalito5 and Rodilyn, and her sister-in-law, Rosa, were also within the premises. Petitioners cut their way through her closed bamboo gate and they overtook her while she was running towards her house. After she was injured, her children brought her to the Visto familys house which is located 200 meters away. Meanwhile, Rosa ran to the Alsa Masa detachment to report the incident. Glorias four brothers-in-law, namely: Roberto, Modesto, Efren and Nilo, and her sister-in-law, Miguela were also within the premises but were not able to help her because they were nervous.6 On the other hand, petitioners invoke self-defense, contending that the victims injuries on the head were the result of the struggle for the possession of the ax between her and petitioner Aradillos. Petitioners, who are both carpenters, recounted that on their way home from work in the afternoon of February 3, 1992, they stopped by the wooden bridge where they usually pass because of an uprooted "idyok" tree that obstructed their passage. Petitioner Galabo started cutting off the roots of the tree with his carpentry ax. But upon seeing them, Gloria who had been drinking "tuba" with her brothers-in-law, shouted invectives at them and threw stones at Galabo. When Galabo was hit on his left rib, he ran for cover at a nearby coconut tree. Petitioner Aradillos took over the cutting of the tree. Gloria continued throwing stones. Then, she approached Aradillos and grabbed the ax from him. While the two grappled for its possession, Glorias brothers-in-law were throwing stones at Galabo. In the course of the struggle between Aradillos and Gloria, the ax hit the latter. Seeing that Gloria was injured, Aradillos ran away, followed by Galabo. Aradillos passed by his house, left the ax there, then, went directly to the purok leader, Benjamin Autida, to whom he surrendered.7 The trial court believed the prosecutions account, finding that the nature of the injuries sustained by Gloria could not have been caused during the struggle between her and petitioner Aradillos. Thus, the trial court convicted petitioners of the crime of Frustrated Homicide and sentenced them, as follows: WHEREFORE, finding the guilt of the two (2) accused, Adonis Aradillos and Albino Galabo, proven beyond reasonable doubt of Frustrated Homicide and finding in their favor the provisions of Art. 250 of the Revised Penal Code, they are hereby sentenced to an imprisonment of ONE (1) YEAR each and pay the costs.

For the civil liability, they are ordered to pay jointly and severally, the sum of P10,000.00 for medical expenses and moral damages, of the victim. SO ORDERED.8 On appeal, in sustaining the trial courts findings, the Court of Appeals noted that it is "unnatural and contrary to ordinary human experience for a woman, alone and unarmed, to run towards the two male appellants and grapple for the possession of an axe."9 The appellate court modified the penalty imposed on petitioners and the damages awarded in favor of the victim,10 as follows: ACCORDINGLY, the judgment of conviction is hereby AFFIRMED with the following modifications: 1) The accused appellants are sentenced to suffer an imprisonment ranging from two (2) years, four (4) months and one (1) day of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor as maximum; and 2) They are ordered to pay the victim jointly and severally, the sum of P1,664.00 for medical expenses as actual damages, and P6,000.00 as moral damages. SO ORDERED.11 In their petition for review on certiorari, petitioners claim that the Court of Appeals affirmance of their conviction with modification is not in accordance with law, the applicable decisions of this Court and the evidence on record. It is settled that an appeal in a criminal case throws the whole case wide open for review12 and it becomes the duty of the Court to correct such errors as may be found in the judgment appealed from, whether they are assigned as errors or not.13 At the outset, the Court notes that while the memoranda of the parties and their appeal briefs focused on petitioners claim of self-defense, their evidence is actually rooted on the testimony of petitioner Aradillos that the ax accidentally hit Gloria during the struggle for its possession between them, thus: Q Before the wounding incident happened, what were you doing? A I was looking at Albino Galabo who was cutting the roots of the "idyok". Q Where was that "idyok" located at that time while you were watching Albino Galabo cutting it? A The "idyok" was along the bridge where it was fallen and which Albino cut. ... Q And while Galabo was cutting the "idyok", what happened next? A He was stoned by Gloria Alviola. ... Q What else transpired aside from the stoning incident? A She shouted: "Mga baga mo ug nawong. Mga squatter mo. Mga gagmay ra ba mo ug lawas." (You are shameless. You are squatters. you have small bodies.) Q How did you come to know that Gloria Alviola threw stones at Albino Galabo? A Because I saw her. ... Q Let us go back to the stoning incident. You said Gloria threw stones at Galabo while Galabo was cutting the "idyok" and Gloria at the same time uttered those words you just have quoted, what happened to Galabo, if any, in result of the stoning of Gloria? A Galabo was hit at his right rib cage. Q And what happened to Galabo? A He was in pain. Q What else did he do, if any? A I got the axe which Galabo used in cutting the "idyok" to continue cutting the said "idyok", but Gloria continuously threw stones to us and then she grabbed the axe from my hands. ...

Q I will further clarify, Your Honor. How did it happen that Gloria, the one you said threw stones at Galabo was able to wrestle with you for the possession of the axe? A She rushed at me. Q After rushing at you, what did Gloria do? A She grappled with me for the possession of the axe. Q In relation to the wooden bridge, in what particular spot or area were you grappling or possession of the axe? A At the edge of the bridge. Q Can you demonstrate to the Honorable Court how the grappling for possession of the axe happened between you and Gloria? A (Witness demonstrated that he placed his right hand at the lower portion of the handle of the axe; that Glorias right hand was holding the middle portion; and that his left hand was holding the upper portion; and that Glorias other hand was on top of his hand.)14 (Emphasis supplied) On cross-examination, Aradillos further demonstrated how Gloria sustained her injuries: Q Now, with that kind of illustration, Mr. Aradillos, how did Gloria sustain the injuries because you said that it was in the course of grappoing (sic)? Will you please demonstrate to the Court how the injuries of Gloria Alviola was inflicted? A (Witness makes a demonstration) ASST. CITY PROS. CALIZO: We would like to make of record that in his earlier demonstration Gloria was holding the middle portion and the upper portion of the axe. Was that the position of the axe during that time? A Yes. Sometimes it swung like this - the blade sometimes faced me; sometimes it faced her. Q How did she sustain the wound? A She was accidentally injured because of the force of the grappling. Q At that time you pushed the axe, was that the position of your hands? A No maam. Because of the swinging, I was able to push it accidentally towards Gloria.15 (Emphasis Ours) Accident and self-defense are two incompatible defenses. Accident presupposes lack of intention, while self-defense assumes voluntariness, but induced only by necessity.16 In view of the above-quoted assertions of petitioner Aradillos before the trial court, the Court adopts a more liberal stance by disregarding the apparent conflict in the defense raised by petitioners in their pleadings. After all, court litigations are primarily for the search for truth, and a liberal interpretation of the rules by which both parties are given the fullest opportunity to adduce proofs is the best way to ferret out such truth.17 In People vs. Court of Appeals,18 the Court ruled that when, during the trial of the case, an accused claims that the crime was the result of an accident, the burden of proving self-defense will not come into play, to wit: It is noteworthy that during the trial, petitioner Tangan did not invoke self-defense but claimed that Generoso was accidentally shot. As such, the burden of proving self-defense, which normally would have belonged to Tangan, did not come into play. Although Tangan must prove his defense of accidental firing by clear and convincing evidence, the burden of proving the commission of the crime remained in the prosecution.19 (Emphasis supplied) Accordingly, petitioners need not discharge the burden of proving self-defense, although they must prove their defense of accidental infliction of injuries on the victim, by clear and convincing evidence. On the prosecution remains the burden of proving the commission of the crime beyond reasonable doubt.

It is not disputed that Gloria sustained hacking injuries. The prosecution maintains that these injuries were the result of intentional blows, while petitioners stand by their claim that Gloria sustained the injuries while she and Aradillos were grappling for the possession of the ax. Generally, the rule is that an assessment made by the trial judge of the credibility of witnesses will not be disturbed on appeal. Having heard the testimony of the witnesses and observed their demeanor on the witness stand, the judge is in a better position to determine the issue of credibility.20 But when it is shown that some facts or circumstances of weight and substance which would affect the result of the case have been overlooked, misunderstood or misapplied, the Court will not hesitate to make its own evaluation of the evidence. 21 Records show that aside from the testimony of the victim and petitioners, the evidence for both the prosecution and the defense as to the facts and circumstances surrounding the commission of the crime is based substantially on the corroborating testimonies of their respective relatives, who maintained the respective versions of the prosecution and the defense. Each family has its own ax to grind against the other as they are embroiled in a land dispute. Thus, in order to arrive at a judicious conclusion, these circumstances should have been taken into consideration by the lower courts in the assessment of the respective probative weights of the evidence of the parties. A review of the records discloses that the prosecutions evidence failed to support Glorias account on how she sustained the injuries on the head. In fact, her version together with the testimonies of the prosecution witnesses is replete with incredible details that necessarily cast serious doubts on the probative weight of the prosecution evidence which the trial and appellate courts have overlooked. Gloria testified on direct examination that she was inside her yard while petitioners were at the bridge when the latter chased her, but they were able to catch up with her near her house. Her testimony was totally demolished by the cross-examination conducted by the prosecution. Gloria stated that she was inside her yard while petitioners were at the bridge, ten meters away from her.22 She likewise asserted that her house is located five to six meters away from where she was standing.23 If her assertions were true, petitioners had to run ten meters towards her while she had only five to six meters to reach her house. Given the disparity between the distances that petitioners and Gloria had to run, evidently, she had a good head start for her to reach her house before petitioners could be near her. In addition, Gloria testified that petitioners had to destroy the bamboo gate in order to get inside the yard, thus giving her more time within which to reach her house. Yet, Gloria claims, petitioners were able to overtake her. Unless Gloria leisurely walked towards her house or that she had no intention of taking refuge in her house, it would have been physically impossible for petitioners to have caught up with her before she entered her house. As noted by the trial court, "you will not wait for someone to catch you before [you] ran (sic) away."24 If at all, Gloria should have already been in the safety of her house by the time petitioners would have negotiated the distance of ten meters, not to mention the time that petitioners would have spent in destroying the bamboo gate. The prosecution also claims that petitioner Galabo hit Gloria several times on the nape with a carpentry bag and a piece of wood measuring two feet in length and two inches in diameter25 which caused her to fall face down.26 However, aside from the prosecution witnesses testimonies, no other evidence was presented to support such claim. If their testimonies were true, then Gloria should have suffered injuries, or bruises at the very least, as a result of the blows on her nape with a carpentry bag and a piece of wood. But interestingly, no medical evidence was presented to confirm that Gloria sustained even a scratch from said blows. Such lack of evidence renders incredible the prosecutions accusation that Galabo inflicted blows on Gloria. Physical evidence is mute but an eloquent manifestation of truth and rates highly in the hierarchy of trustworthy evidence.27 It enjoys a far more superior probative weight than

corroborative testimonies.28 In this case, the absence of physical injuries and medical findings negate Glorias claim that she was hit by petitioner Galabo. Gloria further testified on direct examination that after sustaining injuries, she sought help from her neighbors, the Visto family, who brought her to the clinic of Dr. Generoso B. Alvarez. On crossexamination, Gloria stated that it was her children, Glodilito and Rodilyn,29 who managed to help her get to the Visto familys house, which is located 200 meters away from her house.30 It would have been easy to believe such testimony if at the time the fracas occurred, there were no other people within the immediate vicinity who could have come to Glorias aid. But, the corroborating testimonies of the prosecution witnesses all declare, that at that time, Glorias four brothers-in-law were in Rosa Alviolas house, which was merely ten meters away from the place where the alleged hacking occured. Roberto Alviola testified that he just watched and went inside his house after the incident while his other brothers ran away when the incident took place.31 It is claimed that they were not able to help Gloria because they were nervous. The Court finds this utterly incredible and totally absurd. No amount of stretch of any ones imagination can it be believed that four ablebodied men will be so unconcerned so as to just watch and let an injured woman, a relative at that, and her two young children, walk 200 meters for help, when they were already close by and could have readily given assistance. They did not even exert any effort to call for their neighbors for assistance or immediately report the incident. In fact, it had to take two women, Rosa and Miguela Alviola, to run to the Alsa Masa detachment and report the incident. It is even highly improbable that petitioners would pursue Gloria into her yard to harm her. In the first place, the prosecution failed to adduce any plausible reason why petitioners would suddenly run after Gloria. Also, at the time of the alleged chase, Gloria was inside her yard, together with her children, Glodilito and Rodilyn, and her sister-in-law, Rosa Alviola.32 It is very unlikely that petitioners will have the audacity to attack Gloria inside her premises and within the sight of her family members who could be witnesses to their alleged malevolent intent to kill Gloria. Most telling of the incredibility of the version of the prosecution, is the testimony of Roberto Alviola, the victims brother-in-law. According to Roberto, he heard Gloria shouting for help.33 He went out of his house and saw petitioners ganging up on her. After seeing this, he went back inside his house, remained there and did nothing.34 Meanwhile, his brothers, Efren, Nilo and Modesto, who were with him earlier, had ran away.35 Such display of apathy or unconcern for a relative goes against ordinary human behavior, especially for Filipinos who are noted for close-knit familial ties and readiness to help family members at the risk of their own lives. Testimonial evidence to be credible should not only come from the mouth of a credible witness but should also be credible, reasonable and in accord with human experience, failing in which, it should be rejected.36 Moreover, the Court cannot concur with the appellate courts observation that it is "unnatural and contrary to ordinary human experience for a woman, alone and unarmed, to run towards the two male appellants and grapple for the possession of an axe."37 Such observation cannot be accepted as absolute. The lower courts failed to consider the established facts and the circumstances of the case. It need not be said that there are women who, when provoked, throw caution to the wind and charge on to fight back. In this case, it is not "unnatural" for Gloria to show aggression against petitioners. It is shown that the petitioners are smaller than Gloria.38 Moreover, unrebutted defense evidence disclose that on February 2, 1992, a day before the incident, Lydia Galabo, wife of petitioner Albino Galabo and Aradillos older sister, filed with their barangay a complaint for "harassment, stoning and slight physical injuries" against Gloria.39 Summons was served on Gloria through Purok Leader Benjamin Autida in the morning of February 3, 1992.40 Gloria manifestly harbors an animosity against petitioners and their family, and this explains her frenzied reaction towards petitioners when the incident occurred.

All these facts and circumstances when taken into account engender the Court to suspect the truthfulness of the prosecutions account. To accuse is one thing, to prove is another. In this case, the prosecutions accusations do not jibe with their proofs. As such, the Court has no other recourse but to disbelieve the tale as presented by the prosecution. In contrast, the defenses account is credible as it is in accord with the natural course of things. As told by petitioner Aradillos, it was Gloria who went near Aradillos who was then cutting the roots of the "idyok" tree, and grabbed the ax, obviously with the intention of stopping Aradillos from cutting the tree. Not wanting to let go of the ax, Aradillos held on to it and the two then struggled for its possession. With both of their hands on the handle, the ax went swaying and swinging, which accidentally hit Gloria.41 The injuries sustained by Gloria, in fact, confirm that it was not intentional. For if it were so, petitioner Aradillos would have exerted such force that Gloria would have suffered more than what she had sustained. Worse, she would not have survived at all. That Gloria and her brothers-in-law were drinking tuba in the afternoon of February 3, 1992; that Gloria stoned Galabo and that Aradillos grappled with Gloria for the gun as testified to by petitioners and other defense witnesses are more credible than the testimonies of the prosecution witnesses. This is strengthened by the fact that it was not refuted by the prosecution that her brothers-in-law did not come to her aid, and that after she was injured, she had to seek her neighbors assistance who were 200 meters away instead of her relatives who were just nearby. As previously discussed, the Court cannot fathom why her brothers-in-law did not help Gloria, unless, as testified by petitioners, Glorias in-laws were drinking tuba prior to the incident and the former were already intoxicated and therefore could not have been of any assistance to Gloria. The Court likewise finds that conspiracy was not established. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.42 Like the offense itself, conspiracy must be proved beyond reasonable doubt.43 Thus, it has been held that neither joint nor simultaneous action is per se sufficient proof of conspiracy.44 In the present case, the defense sufficiently rebutted the accusation that Galabo and Aradillos acted in concert in harming Alviola. As their evidence shows, it was only Aradillos who struggled with the victim, and Galabo was then fending off the stones being thrown by the victims brothersin-law. Galabo had nothing to do with the injuries sustained by Gloria. Galabos only participation in the incident was his presence, but mere presence at the scene of the crime does not imply conspiracy.45 Even assuming that the prosecutions version is true, and Galabo hit Gloria with a carpentry bag and a piece of wood, and thereafter, Aradillos hacked Gloria, still, the seemingly concerted and simultaneous acts of petitioners were more of a spontaneous reaction to what they perceived to be an aggression by Gloria, rather than the result of a common plan to kill the victim. Hence, their liability is individual and not collective.46 More specifically, Aradillos is solely liable for the injuries sustained by Gloria. There is no evidence that Gloria sustained injuries from the acts of Galabo. Lastly, the Court cannot agree with the lower courts finding that the nature of Glorias injuries justifies the conclusion that these were fatal and intentionally inflicted, and cannot be the result of a mere struggle such that petitioners are guilty of Frustrated Homicide. Intent to kill is the principal element of attempted or frustrated homicide, or murder.47 Such intent must be proved in a clear and evident manner to exclude every possible doubt as to the homicidal intent of the aggressor.48 The testimonies of the doctors who treated Gloria did not establish with certainty the nature, extent, depth and severity of the wounds sustained by her. Such medical evidence could have shed light as to the relative position of Aradillos and Gloria at the time the blows were inflicted, whether the wounds sustained by the victim were a result of an intentional infliction or accidental, or whether it was mortal or superficial. In People vs. Matyaong,49 the Court discussed the importance of ascertaining the degree of injury sustained by a victim, viz.:

In considering the extent of injury done, account must be taken of the injury to the function of the various organs, and also the danger to life. A division into mortal and nonmortal wounds, if it could be made, would be very desirable; but the unexpected complications and the various extraneous causes which give gravity to the simplest cases, and, on the other hand, the favorable termination of some injuries apparently the most dangerous, render any such classification impracticable. The general classification into slight, severe, dangerous, and mortal wounds may be used, but the possibility of the slight wound terminating with the loss of the persons life, and the apparently mortal ending with only a slight impairment of some function, must always be kept in mind. . . . The danger to life of any wound is dependent upon a number of factors: the extent of the injury, the form of the wound, the region of the body affected, the blood vessels, nerves, or organs involved, the entrance of disease-producing bacteria or other organisms into the wound, the age and constitution of the person injured, and the opportunities for administering proper surgical treatment. . . .50 Dr. Generoso B. Alvarez who initially attended to Gloria and gave her first aid treatment, opined that if the bleeding was left untreated, the victim could die in six to twelve hours but at the same time, but also stated on the witness stand that Gloria suffered two lacerations on the head which merely required suturing. Dr. Alvarez testified as follows: Q How would you describe the bleeding that you saw? A Profuse, I would say. Q In your medical studies and experience, what appears to be the most heavy bleeding in the part of the body? A Generally, wounds on the head, usually profuse, even small wounds. Q After a patient was on your examining table, and you saw blood on her head and on her body, what did you do? A I have to examine the patient on the vital signs, whether the pulse rate and state of consciousness was stable, and because my clinic was very limited, when you feel that there are other colleagues who can do it much better then you, but at that time I was at a loss knowing that it was a medico-legal case, but at that time I had no other recourse because it was at that time that there was a jeepney strike, so it took time for her to be transported for the moment, so I had to control the bleeding and keep the patient stable until she could be transported to the hospital. ... Q Since you knew that the patient was stable, what did you do next? A After cleaning up the face with blood, I have to inspect the extent of the wound, I put my finger on the wound. Q What did you find out on the head of the patient? A There were 2 wounds, one on the forehead and there was another wound on the right side up on the scalp, about 2.5 inches. Q In that wound in the forehead, what did you do next? A I inserted my finger to find out whether there is brain damage or fracture, because you do not close a wound if you suspect there is a fracture inside because the blood will get inside the brain, and I found out there was a depressed fracture, I suppose it was a sharp injury based on the history, there was a depressed fracture and the same on the other wound. ... ATTY. PALABRICA: Q Are these kind of wounds painful? A Painful, for a while. Q Could that have caused death on the patient?

A If she was unfortunate, she could have died. Fortunately for her, it was in the area of the brain where it is not very important to us, in fact, you could remove that portion of the brain, and still be alived (sic). Q You said that the bleeding was profuse, were you able to stop the bleeding? A Yes. Q If that bleeding was not stop (sic), would the patient have died? A Yes, it was at that time the jeepney was on strike, normally, you do not suture wound on the scalp when you know there is bleeding inside, but under the situation, there was no way to transport her to the hospital, the first thing I did was to stop the bleeding. Q If that wound was left to bleed on its own, how many minutes would it have taken to live or die? A It could depend, 6 to 12 hours. ... Q Multiple laceration, what do you mean? A More than one laceration. Q When you say laceration, what does it mean? A It is a wound. Q Laceration could usually be caused by? A It could be blunt, it could be sharp instrument. Q What do you mean by 2 lacerations? A Forehead and the scalp. Q Scalp is also the laceration of the other wound? A Yes. ... Q There is here exploration and repair done. A As I said earlier, before you touch anything, you have to explore the head. Q How about the repair? A Suture.51 (Emphasis supplied) Taken in its entirety, it appears that the wounds sustained by Gloria were not so grave so as to sustain the claim of the prosecution that petitioners had the intention to kill Gloria when she was hit with the ax by Aradillos on the head. Moreover, another prosecution witness, Dr. Rene Elias Lopez, testified that the fractures on the right and left frontal area of Glorias skull were slight or minimal.52 This weakened the claim of the prosecution that the injuries sustained by Gloria could have been fatal or were inflicted by Aradillos with such force as to establish the intent to kill. On direct examination, Dr. Lopez testified that there was no fracture in the skull and that the fracture chip did not present much of a problem. Further, he was not emphatic on the fatal nature of the injuries sustained by Gloria, thus: Q "Frontal chip", what do you mean "chip"? A It means a small fracture. Q How small was that? A Its quite small, maybe a finger nail. Q What happened to the forehead or frontal bone which was chipped, what happened? A This means that the frontal bone had a chip fracture on the bone, left and right areas. There was a break in the continuity of the bone. Q In other words, the left frontal area of the head was sort of cut and damaged, is that what you want to tell us? A The outer layer of the skull was indeed violated and resulted in the . . . ATTY. DE VERA: Objection, Your Honor, the witness is incompetent, and no basis.

Q Now, as a doctor, what would be the effect of the chip on the left and right frontal area of the head? COURT: Lay the basis first. Q Doctor, are you familiar with the effects of the chip on the frontal area of the head? A Yes, sir. Q Now, what would be the effect since you are familiar with the effects? ... Q In this case you said there was a chip in the left forehead or right frontal bone, what would be the effect doctor of that chip which you identified? A The chip itself does not present much of a surgical problem, however there are several instances wherein the chip fractured presented in the skull there might be other injuries which necessitates further management. Q In this case doctor what did you discover or find in this patient after you examined her? A The patient, as I have said presented with a sutured wound. Further X-ray on the skull showed a fracture on the frontal bone. So, we were entertaining the possibility of an intra-cranial injury inside the skull, and therefore the patient must be admitted and observed for any further consequence of the injury sustained. Q In the same manner the wound on the right, what would have been the effect of that? A The same, sir. Q As far as you know the wound was depressed? A There was no depression in the skull. Q Doctor, what medication did you advise the patient after she arrived in the hospital? A She was under IV, given anti-biotics, anti-tetanus, prophylactic immunization. She was placed in the ICU. Q What do you mean by IV? A Intraveinous fluid. Q Why? A We were entertaining the possibility of an intra-cranial injury. If there is no IV placed something might develop as a result of the injury. We might lost time and will not be able to give her medication on an emergency basis. Q In other words, the patient might die? ATTY. DE VERA: Very leading, Your Honor. COURT: Reform your question. Q What would have been the effect doctor if this has not been done? A The purpose of the IV is more or a precautionary measure of any untowards incident as a result of the injury. Thats why she was admitted to the ICU. Q Doctor, how about anti-tetanus, why do you give anti-tetanus? A Any patient presented with a break in the skin must be administered with anti-tetanus. Q Doctor, what were the others you said? A Anti-biotics, penicillin and chloromphenicol. Q Standard doses? Maximum doses? A These are maximum doses. Q Why? A We have to safeguard the possibility of an intra-cranial injury, therefore maximum dosages are what you call recommended on the patient.

Q In other words, if you do not give the usual medication as you said and administration, what is the danger to the patient, please tell us? A The patient would develop skin infection. Q And what would happen if there is skin infection? A The wound will not heal. Q And what else? A If it does not heal, then the patient might develop fever later on.53 On cross-examination, Dr. Lopez further testified: Q So, as you testified a while ago, you were the one who interpreted the X-ray findings, and according to you, you found compound fractures where? A Both right and left frontal area of the skull. Q Of the forehead? A Yes, sir. Q But the fracture was minimal or slight because you said earlier "something like the equivalent of a chip", so it was minimal or slight? A Yes, sir. Q And there was no other surgical operation performed on the patient with respect to the said fracture that you found? A None, sir. Q In other words, the fracture could heal by itself through natural process without any outside medical intervention? I am referring to the fracture itself.lawphil.net A The fracture could heal by itself, yes.54 (Emphasis supplied) Dr. Lopez likewise stated that Gloria was admitted to the Intensive Care Unit (ICU) for further observation as a matter of standard procedure because they cannot discount the possibility of intracranial injury.55 The victim was then taken out of the ICU after 24 hours of observation and discharged from the hospital on February 6, 1992,56 three days after the alleged hacking incident. In his Medical Certificate, Dr. Lopez made the following diagnosis: Compound fracture, (R) and (L) Frontal area 2 to hacking wound GCS 15 RLS 1 Probable healing time will be Fourteen (14) days barring complication.57 There is therefore, a dearth of medical evidence on record to prove that the nature of injuries inflicted by Aradillos showed any willful intent to kill Gloria. Nonetheless, Aradillos must be answerable for the injuries he inflicted on Gloria. He cannot hide behind the defense of accident to escape the consequences of his act. Under Article 12, paragraph 4 of the Revised Penal Code, a person, who while performing a lawful act with due care, causes an injury by accident without fault or intention of causing it, is exempt from criminal liability.58 It cannot be said that Aradillos was performing a lawful act when he struggled with Gloria for the ax as the latters act of taking hold of the ax was equivocal, and it cannot be deduced therefrom that he was under the threat of an unlawful aggression from her. The defense of accident, therefore, cannot exempt Aradillos from liability. Although the Information charged petitioners with Frustrated Murder, a finding of guilt for the lesser offense of less serious physical injuries may be made considering that the latter offense is necessarily included in the former since the essential ingredients of physical injuries constitute and form part of those constituting the offense of murder.59 Similarly, an accused may be convicted of slight, less serious or serious physical injuries in a prosecution for homicide or murder, inasmuch as the infliction of physical injuries could lead to any of the latter offenses when carried to its utmost degree despite the fact that an essential requisite of the crime of homicide or murder - intent to kill is not required in a prosecution for physical injuries.60

In conclusion, absent competent proof, and there being no conspiracy, Aradillos should be held liable only for less serious physical injuries under Article 265 of the Revised Penal Code, as amended,61 as the wounds sustained by Gloria required medical attendance of fourteen days.62 Galabo must be absolved from any liability as the prosecution failed to conclusively prove that he conspired with Aradillos in the commission of the crime. In imposing the proper penalty, the lower courts failed to take into consideration the mitigating circumstance of voluntary surrender in favor of petitioner Aradillos. Evidence show that Aradillos spontaneously and unconditionally surrendered to the authorities immediately after the incident, placing himself at their disposal, and saving them the time and effort attendant to a search.63 Purok Leader Benjamin Autida testified that Aradillos and Galabo immediately went to him after the incident and surrendered.64 This was corroborated by SP02 Celso Hernandez who attested that by the time Rosa Alviola reported the incident to them, Autida had already endorsed petitioners Aradillos and Galabo to their office.65 Thus, the mitigating circumstance should lighten the penalty to be imposed on petitioner Aradillos. Article 265 of the Revised Penal Code, as amended, penalizes the crime of Less Serious Physical Injuries with arresto mayor, or imprisonment for a period of one month and one day to six months. The Indeterminate Sentence Law is not applicable in this case because the maximum penalty does not exceed one year.66 Appreciating the mitigating circumstance of voluntary surrender and there being no aggravating circumstance, the penalty should be imposed in its minimum period, or anywhere within a period of one month and one day to two months.lawphil.net As regards the damages awarded, the Court finds that the award of P1,664.00 as reimbursement for medical expenses is in order, it being supported by evidence.67 Likewise, the victim having suffered actual injuries, she is entitled to moral damages.68 The award of P5,000.00 is sufficient under the circumstances.69 WHEREFORE, the decision dated February 12, 1998 of the Court of Appeals in CA-G.R. CR No. 17316 is MODIFIED. Petitioner Adonis Aradillos is found GUILTY beyond reasonable doubt of the crime of Less Serious Physical Injuries, and sentenced to suffer two (2) months of imprisonment, and to pay Gloria Alviola the amount of One Thousand Six Hundred and Sixty-Four Pesos (P1,664.000) as actual damages, and Five Thousand Pesos (P5,000.00) as moral damages. Petitioner Albino Galabo is ACQUITTED and the bail bond posted for his provisional liberty is cancelled and released. SO ORDERED. Puno, (Chairman), Quisumbing, Callejo, Sr., and Tinga, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 125966 January 13, 2004 PEOPLE OF THE PHILIPPINES, appellee, vs. JUAN FACTAO alias "BOYET," ALBERT FRANCIS LABRODA alias " ABET," and TIRSO SERVIDAD, appellants. DECISION TINGA, J.: The defense of alibi is by nature weak but it assumes significance and strength where the evidence for the prosecution is also intrinsically weak.1 The contrasting weight of the prosecution evidence against appellants Juan Factao and Albert Francis Labroda, on the one hand, and appellant Tirso Servidad, on the other, accounts for the difference that the Court accords their respective alibis. In the evening of August 23, 1991, Vicente Manolos was in a kamalig near the seashore in Barangay Sirawagan, San Joaquin, Iloilo with Eduardo Sardoma, Rolando Nierves, Noel Serrano and the hut's owner, Fernando Sardoma.2 Sometime past 8:00 p.m., Vicente felt the urge to defecate so he went beside a boat about four or five meters from the hut.3 As Vicente relieved himself, he saw Juan Factao and Albert Francis Labroda approach the hut.4 Factao was armed with a garand rifle.5 As the two men neared the kamalig, Labroda looked around as if to see if there was anyone else about.6 Factao peeped into the hut, which was illuminated by an electric light bulb, aimed his gun at a hole in the hut's bamboo wall and fired.7 Factao and Labroda then sped towards the Sirawagan River.8 In his haste, Factao tripped on the outrigger of the boat beside which Vicente was defecating.9 Fortunately, Factao did not notice Vicente, who tried to hide himself.10 Vicente quickly pulled up his pants and ran towards the hut.11 From about five arms' length away,12 Jose Manuel Sermona also witnessed the shooting. Jose Manuel saw Juan Factao, Albert Francis Labroda and Tirso Servidad pass the hut where he was staying as they walked towards the kamalig of Fernando Sardoma.13 Factao was carrying a garand, although the other two were unarmed.14 Labrado looked on as Factao peeped into the kamalig, aimed and fired.15Factao and Labrado then ran towards the river while Servidad separated from the two.16

Inside the kamalig, Eduardo Sardoma was conversing with Rolando Nierves, Noel Serrano and Fernando Sardoma.17 The latter was on the floor lying on his side.18 Suddenly, Eduardo heard an explosion.19 Immediately, he went outside and saw Tirso Servidad bending his body forward and moving his head sideways.20 Eduardo quickly wrapped his arms around Tirso. Eduardo also espied Juan Factao, who was carrying a garand, and Albert Francis Labroda running from the scene.21 Eduardo then heard Fernando Sardoma pleading for help.22 Fernando said he had been shot and asked to be brought to the hospital.23Eduardo went back inside the hut, where he found Fernando bathing in his own blood.24 The same bloody sight greeted Vicente Manolos when he reached the hut.25 He cuddled Fernando and pushed inside the victim's protruding intestines.26 Vicente, Eduardo, Jose Manuel and Rolando Nierves loaded Fernando into a jeep and rushed him to the hospital.27Their efforts were for naught, however, as Fernando was already dead upon arrival at the Pedro Trono Memorial Hospital in Guimbal, Iloilo.28 The autopsy conducted by Dr. Irene Escanlar, Medical Officer III of said hospital, revealed that the victim sustained a gunshot wound at the eleventh left intercostal space with exit at the right hypochondriac area.29 The bullet perforated the left lower lobe of the lung, the pancreas, the whole lobe of the liver and the right diaphragm.30 The bullet also caused a fracture on the right tenth and eleventh ribs.31 Hypovolemic shock or massive blood loss, secondary to the rupture of the liver, was the victim's immediate cause of death.32 According to Dr. Escanlar, Fernando probably had his side towards the assailant when he was shot.33 Dr. Escanlar reduced her findings in a Post Mortem Report.34 The police investigation resulted in the apprehension of Juan Factao, Albert Francis Labroda and Tirso Servidad. The three were subsequently charged with Murder in an Information reading: That on or about the 23rd day of August, 1991, in the Municipality of San Joaquin, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, conspiring, confederating and mutually helping one another to better realize their purpose, with deliberate intent and decided purpose to kill, armed with Garand, US Rifle Caliber .30 M1, with treachery and evident premeditation and without any justifiable cause or motive, did then and there, willfully, unlawfully and feloniously assault, attack and shoot one FERNANDO SARDOMA with the weapon they were then provided, inflicting upon their said victim gunshot wound on the vital part of his body which caused the immediately (sic) and instantaneous death of said Fernando Sardoma. CONTRARY TO LAW.35 When arraigned, all three accused pleaded not guilty.36 Trial ensued, during which the prosecution offered the testimonies of Jose Manuel Sermona, Eduardo Sardoma, Vicente Manolos and Dr. Irene Escanlar. The prosecution witnesses testified to the foregoing narration. The accused denied any participation in the killing of Fernando Sardoma. They invoked alibi as their defense. Factao and Labrado, both members of the Citizens Armed Forces Geographical Unit (CAFGU), claimed that at the time of the incident they, along with Noel Lupase and Carlos Garcia, were celebrating the birthday of Labroda in the latter's house.37 The party ended at around 10:00 p.m.38 Thereafter, Carlos Garcia repaired to his home while Juan Factao returned to camp.39 Noel Lupase, who corroborated Labroda and Factao's presence at the party,40 spent the night at Labroda's house.41 They learned about the tragedy only the following day.42 Factao and Labrado, suspected that the victim's companions, the principal prosecution witnesses, were sympathizers of the New People's Army (NPA).43 Factao also imputed ill motive on prosecution witness Vicente Manolos with whom he had a quarrel during a basketball game five days before the killing of Fernando Sardoma.44

Accused Servidad, also a CAFGU member,45 presented a different account of his whereabouts. Servidad was on his way home when he met Sirawagan Barangay Captain Faustino Nierves at about 8:30 in the evening of 23 August 1991.46 The two then heard an explosion from the direction of the seashore.47 Barangay Captain Nierves instructed Servidad to investigate the explosion.48 Some ten meters from Fernando's hut, Servidad came upon Rolando Nierves and Vicente Manalos,49 and inquired about the explosion.50Rolando and Vicente replied that Fernando had been shot.51 Servidad asked them to call for other people to help bring Fernando to the hospital.52 Servidad then proceeded to the kamalig and peeped through the door.53 Inside, he saw a bleeding Fernando.54 Servidad asked people to help him lift Fernando to the jeep.55 Thereafter, he headed back home.56 Servidad denied being with Factao and Labroda on that fateful evening or that Eduardo Sardoma grabbed him right after the explosion.57Servidad said he was not in good terms with prosecution witnesses Eduardo Sardoma and Jose Manuel Sermona, whom he suspected were NPA sympathizers.58 He denied harboring a grudge against the victim, who he claimed was a good friend.59 Servidad's alibi was corroborated by Barangay Captain Nierves, who testified having met Servidad right before the explosion, and instructing the latter to investigate the incident.60 Later that evening, Servidad informed him that Fernando Sardoma had been shot61 The defense also presented Juan Roweno Secuban, likewise a CAFGU member, whose testimony was offered to disprove that the killing of Fernando Sardoma was in retaliation for Secuban's hacking.62 According to Secuban, he was hacked by a certain Ronaldo San Miguel over a girl they were both courting.63 Fernando, allegedly a witness to the incident, even executed an affidavit in favor of Secuban.64 On July 14, 1995, the Regional Trial Court (RTC) of Iloilo City, Branch 25, rendered judgment finding all three accused guilty of Murder and sentencing them to suffer the penalty of reclusion perpetua. The dispositive portion of the Decision reads as follows: WHEREFORE, premises considered and finding the accused, Juan Factao alias "Boyet," Albert Francis Labroda alias "Abet" and Tirso Servidad, guilty of murder as charged beyond the shadow of doubt, they are hereby sentenced to suffer the invisible (sic) penalty ofReclusion Perpetua, plus the accessory penalties as provided under Article 41 of the Revised Penal Code, and moreover, they are ordered to indemnify the family of the victim the amount of P50,000.00 to reimburse the family the amount of P10,000.00 for the coffin and another P10,000.00 as expenses for the funeral and wake, and to pay the attorney's fee of P9,000.00 and the cost. At the time the crime was committed the death penalty was not yet restored, hence it cannot be imposed in this case. SO ORDERED.65 From this Decision, the accused have appealed. The Court entertains no doubt that appellants Juan Factao and Albert Francis Labroda are guilty of the slaying of Fernando Sardoma. Prosecution witness Vicente Manolos unerringly pointed to the two as the perpetrators of the crime: Q: At around that time while you were defecating beside the boat can you tell the Court if there was any unusual incident that happened? A: Yes, sir. Q; Will you please tell the Court what was the incident about? A: I saw two men approaching the hut of Fernando Sardoma. Q: Now, can you identify these two persons which you said were approaching the hut of Fernando Sardoma? A: Yes, sir. Q: Please tell the court the names. A: Juan Factao alias Boyet and Albert Francis Labroda.

. Q: At that time that you saw Juan Factao was he carrying something? A: Yes, sir. Q: Can you please tell the court was he was carrying? A: A long firearm. Q: Can you identify that firearm? A: Yes, it was agaran (sic). Q: Now, thereafter, what did Juan Factao and Albert Labroda do? A: They went nearer the hut of Fernando Sardoma. When they were near already I saw Albert Francis Labroda looking around seemingly trying to find out if there are people around. Q: What about Juan Factao, what did he do? A: Looking stilthelly (sic), towards the hut of Fernando Sardoma. . Q: Was Juan Factao able to reach the hut of Fernando Sardoma? A: Yes, sir. Q: When he arrived to the hut of Fernando Sardoma do you know what he did? A: Yes, sir. Q: Please tell the court. A: He first peep (sic) or took a look inside and afterwards aimed the firearm at a hole because the hut is filled with holes, and then fired the shot. Q: After firing the shot, what did Jun Factao do, if any? A: They ran away. . Q: What about Albert Francis Labroda did (sic) know where he went? A: They escaped together.66 Vicente's foregoing testimony was corroborated by Jose Manuel Sermona. Conspiracy between appellants Factao and Labrado was adequately established. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.67 It is not necessary, however, that conspiracy be proved by direct evidence of a prior agreement to commit the crime. Conspiracy may be deduced from the mode and manner in which the offense was perpetrated or inferred from the acts of the accused which show a joint or common purpose and design, a concerted action and a community of interest among the accused.68 While there is no direct evidence to show that Factao and Labroda agreed to commit the crime, the acts of Factao and Labroda immediately before and after the shooting evince a commonality in design sufficient to make them co-principals to the killing. Vicente Manolos testified that as Factao prepared to shoot Fernando, Labrado was looking around to see if anyone else was about.69 Thereafter, the two fled together, running in the same direction, a fact to which Jose Manuel Sermona70 and Eduardo Sardoma71 also testified. The alibi of appellants Factao and Labroda cannot prosper in the face of the positive identification by prosecution witnesses Vicente Manolos and Jose Manuel Sermona, who were both familiar with the two appellants. Alibi, which is easy to concoct, cannot prevail over positive identification.72 Moreover, for their alibi to prosper, the accused must not only prove that they were somewhere else when the offense was committed, but also that they were so far away that they could not have been physically present at the scene of the crime or its immediate vicinity at the time of its commission.73 Appellants Factao and Labroda utterly failed to prove that it was physically impossible for them to be present at the scene of the crime at the time of its commission. Factao and Labroda themselves testified that they were at the house of Labroda to celebrate the latter's birthday on 23 August 1991 at approximately the same time that Fernando Sardoma was

killed.74 Labroda's house was just more than a kilometer away from the place where the crime was committed, or approximately thirty (30) minutes on foot.75 Evidently, the accused-appellants were in a place near the crime scene. On the other hand, the prosecution failed to establish appellant Tirso Servidad's guilt beyond reasonable doubt. Vicente Manolos testified that he saw only Juan Factao and Albert Labroda at the scene of the crime. On direct examination, he did not mention appellant Servidad at all. Q- Now, can you identify these two person[s] which you said were approaching the hut of Fernando Sardoma? A- Yes, sir. Q- Please tell the Court their names? A- Juan Factao alias Boyet and Albert Francis Labroda.76 On cross-examination, the witness adverted to appellant Tirso Servidad but only because the private prosecutor mentioned his name. Moreover, he confirmed the fact that he did not see the appellant Servidad at the same time that he saw the other two appellants. Q- You mean to say that you have not seen or meet (sic) this Tirso Servidad in the evening of August 23, 1991? . A- Yes, sir. Q- Where? A- Outside the hut, I heard his voice. Q- You mean to say that you only heard the voice of this Tirso Servidad, is that what you mean? A- Yes, sir. But when we were carrying Fernando Sardoma, I noticed him. Later, I lost sight of him. . Q- But at the time you were then relieving yourself at the seashore near the fishing boat you have not seen Tirso Servidad with Juan Factao and Francis Albert Labroda, is that correct? A- No. I saw only both of them.77 (Underscoring supplied.) Vicente's testimony contradicts that of Jose Manuel Sermona, who allegedly saw Servidad with Factao and Labroda going to Fernando's hut. Jose Manuel claimed that Servidad allegedly separated from the other two and went to the front door, which was facing the seashore: Q: Have you gone to the hut of Fernando Sardoma before 23 August 1991? A: Yes, sir. . Q: Can you tell this Honorable Court, if you were familiar of (sic) that hut of Hernando (sic) Sardoma where you went inside on August 23, 1991? A: Yes, sir. Q: Can you tell the Honorable Court how many doors this "kamalig" of Hernando (sic) Sardoma has? A: Only one door. Q: And this door of the "kamalig" of Hernando (sic) Sardoma, is it facing the seashore or not? A: Facing the seashore.78 The front of the door where Jose Manuel allegedly saw Servidad, however, was only about four to five meters away from where Vicente Manolos was defecating. Yet Vicente categorically stated that he did not see Servidad as Factao fired the fatal shot.79 These irreconcilable discrepancies in the testimonies of the two prosecution witnesses cast doubt on the culpability of appellant Servidad. Eduardo Sardoma's claim that he caught Servidad peeping into the hut as Factao and Labroda were fleeing defies human nature. If Servidad were at all present at the time of the shooting and conspired with his co-appellants to kill Fernando Sardoma, he would have immediately fled from the scene with his cohorts once the criminal deed was done. But as the defense would have it,

Servidad separated form the other appellants and worst, even linger at the crime scene and risked arrest. Senior Inspector Bonifacio Servano also said that he saw Tirso sometime after the killing, some distance from the crime scene: Q- When you arrived at the place of the incident at around 9:25 in the evening on August 23, 1991 together with two (2) policemen, you saw Tirso Servidad in the place of the incident? A- Yes, sir. . Witness: Correction please, your honor, I saw or met him but outside the place of the incident about 200 meters from the national highway of Brgy. Siwaragan. Q- Was he running or walking? A- He was walking and he stop (sic) when he saw me and saluted me.80 Servidad's behavior in nonchalantly greeting no less than the Chief of Police is unusual for one who had just killed a fellow human being. Again, as correctly pointed out by the defense, it is contrary to human experience for a guilty person, right after the commission of a crime, to roam the streets within the vicinity of the crime scene where police authorities could easily apprehend him.81 Even if Servidad were indeed present at the scene during the shooting, such fact by itself would not render him criminally liable. The mere presence of a person at the scene of the crime does not make him a co-conspirator.82 The prosecution did not offer any evidence that Servidad performed any act from which his conspiracy to the crime may be deduced. In the face of the contradicting and unbelievable testimonies of the prosecution witnesses, the alibi of appellant Servidad assumes strength and significance. According to appellant, he was on his way home when he met Sirawagan Barangay Captain Faustino Nierves at the precise time of the explosion,83 a fact corroborated by the Barangay Captain himself.84 No ill motive has been attributed for this witness, a public officer, to testify falsely. The crime committed by appellants Factao and Labroda is Murder, the killing being qualified by treachery. There is treachery when the offender commits any of the crimes against persons, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution without risk to himself arising from the defense which the offended party might make.85 Treachery attended the killing of the victim Fernando Sardoma, where his assailant Factao first peeped into the bamboo wall, inserted the rifle through the bamboo wall and shot Fernando, who was then lying on his side in the relative security of his hut, utterly defenseless and completely unaware of the impending attack. Evident premeditation, although alleged in the information, was not adequately proven. The essence of evident premeditation is that the execution of the criminal act is preceded by cool thought and reflection upon the resolution to carry out the criminal intent within a space of time sufficient to arrive at a calm judgment.86 The elements of evident premeditation are: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit has clung to his resolve; and (3) a sufficient interval of time between the determination or conception and the execution of the crime to allow him to reflect upon the consequence of his act and to allow his conscience to overcome the resolution of his will if he desired to hearken to its warning.87 Where, as in this case, there is no evidence as to how and when the plan to kill was decided and what time had elapsed before it was carried out, evident premeditation cannot be considered an aggravating circumstance.88 The trial court ruled that the aggravating circumstances of nighttime and dwelling attended the killing. Nighttime, as a rule, is absorbed in treachery, and should not have been appreciated.89 The killing, however, was committed in the dwelling of the victim, who did not give any provocation therefor.90 This aggravating circumstance was, therefore, correctly appreciated.

At the time of the commission of the offense, Murder was punishable by reclusion temporal maximum to death.91 As there is no mitigating circumstance, and one aggravating circumstance, the maximum of the penalty should be imposed,92 but as the death penalty was then suspended. At the time of the commission of the offense, only the penalty of reclusion perpetua may be meted upon appellants.93 In accordance with prevailing jurisprudence,94 appellants Factao and Labrado are each liable to pay the heirs of the victim Fernando Sardoma P50,000.00 as civil indemnity. Exemplary damages in the amount of P25,000.00 should also be awarded to said heirs because of the presence of aggravating circumstances.95 While Fernando Sardoma's widow Virgilia testified that she incurred P30,000.00 in expenses for her late husband's two-week wake,96 apart from the coffin, which cost P10,000.00, including the service,97 such testimony was not supported by a single receipt. Accordingly, the award of P10,000.00 for the coffin and another P10,000.00 for the wake and funeral expenses by the RTC is deleted.98 However, they may be awarded temperate damage of P25,000.00 from each guilty appellant99 The widow Virgilia also said she spent P9,500.00 for a private prosecutor, to whom she still owes another P1,500.00.100 Again, this amount is not borne by any receipt or agreement in evidence. Nevertheless, the Court, in light of the award of exemplary damages, sustains the grant by the RTC of P9,000.00 as attorney's fees.101 WHEREFORE, appellants Juan Factao and Albert Francis Labroda are found GUILTY of the crime of Murder and are sentenced to suffer the penalty of reclusion perpetua. They are each ordered to pay the heirs of the victim Fernando Sardoma the amounts of P50,000.00 as civil indemnity, P25,000.00 as exemplary damages, P25,000.00 as temperate damages and P9,000.00 as attorney's fees. For failure of the prosecution to establish his guilt beyond reasonable doubt, appellant Tirso Servidad is ACQUITTED. The Director of Prisons is ordered to cause his immediate release, unless he is being held for some other lawful cause, and to inform this Court of such action within five days from receipt of this Decision. SO ORDERED. Puno, (Chairman), Quisumbing, Austria-Martinez, and Callejo, Sr., JJ., concur.

In addition, appellant should also be credited with the extenuating circumstance of having acted upon an impulse so powerful as to have naturally produced passion and obfuscation. The acute battering she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she was eight months pregnant with their child, overwhelmed her and put her in the aforesaid emotional and mental state, which overcame her reason and impelled her to vindicate her life and her unborn child's. Considering the presence of these two mitigating circumstances arising from BWS, as well as the benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody on parole, because she has already served the minimum period of her penalty while under detention during the pendency of this case. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 135981 January 15, 2004 The Case For automatic review before this Court is the September 25, 1998 Decision1 of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond reasonable doubt of parricide. The decretal portion of the Decision reads: "WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a generic aggravating circumstance and none of mitigating circumstance, hereby sentences the accused with the penalty of DEATH. "The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine currency as moral damages."2 The Information3 charged appellant with parricide as follows: PANGANIBAN, J.: Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the "battered woman syndrome" (BWS), which allegedly constitutes self-defense. Under the proven facts, however, she is not entitled to complete exoneration because there was no unlawful aggression -- no immediate and unexpected attack on her by her batterer-husband at the time she shot him. Absent unlawful aggression, there can be no self-defense, complete or incomplete. But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of cumulative provocation that broke down her psychological resistance and self-control. This "psychological paralysis" she suffered diminished her will power, thereby entitling her to the mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code. "That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused had provided herself for the purpose, [causing] the following wounds, to wit: 'Cadaveric spasm. 'Body on the 2nd stage of decomposition. 'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its sockets and tongue slightly protrudes out of the mouth.

PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant.

DECISION

'Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in] laceration of the brain, spontaneous rupture of the blood vessels on the posterior surface of the brain, laceration of the dura and meningeal vessels producing severe intracranial hemorrhage. 'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis. 'Abdomen distended w/ gas. Trunk bloated.' which caused his death."4 With the assistance of her counsel,5 appellant pleaded not guilty during her arraignment on March 3, 1997.6 In due course, she was tried for and convicted of parricide. The Facts Version of the Prosecution The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in this wise: "Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City. Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For a time, Ben's younger brother, Alex, and his wife lived with them too. Sometime in 1995, however, appellant and Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived with their two children, namely: John Marben and Earl Pierre. "On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary. They each had two (2) bottles of beer before heading home. Arturo would pass Ben's house before reaching his. When they arrived at the house of Ben, he found out that appellant had gone to Isabel, Leyte to look for him. Ben went inside his house, while Arturo went to a store across it, waiting until 9:00 in the evening for the masiao runner to place a bet. Arturo did not see appellant arrive but on his way home passing the side of the Genosas' rented house, he heard her say 'I won't hesitate to kill you' to which Ben replied 'Why kill me when I am innocent?' That was the last time Arturo saw Ben alive. Arturo also noticed that since then, the Genosas' rented house appeared uninhabited and was always closed. "On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living about fifty (50) meters from her house, to look after her pig because she was going to Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie Dayandayan who unfortunately had no money to buy it.

"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc when he saw appellant going out of their house with her two kids in tow, each one carrying a bag, locking the gate and taking her children to the waiting area where he was. Joseph lived about fifty (50) meters behind the Genosas' rented house. Joseph, appellant and her children rode the same bus to Ormoc. They had no conversation as Joseph noticed that appellant did not want to talk to him. "On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating from his house being rented by Ben and appellant. Steban went there to find out the cause of the stench but the house was locked from the inside. Since he did not have a duplicate key with him, Steban destroyed the gate padlock with a borrowed steel saw. He was able to get inside through the kitchen door but only after destroying a window to reach a hook that locked it. Alone, Steban went inside the unlocked bedroom where the offensive smell was coming from. There, he saw the lifeless body of Ben lying on his side on the bed covered with a blanket. He was only in his briefs with injuries at the back of his head. Seeing this, Steban went out of the house and sent word to the mother of Ben about his son's misfortune. Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as that of [her] son. "Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police station at Isabel, Leyte, received a report regarding the foul smell at the Genosas' rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house and went inside the bedroom where they found the dead body of Ben lying on his side wrapped with a bedsheet. There was blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in one corner at the side of an aparador a metal pipe about two (2) meters from where Ben was, leaning against a wall. The metal pipe measured three (3) feet and six (6) inches long with a diameter of one and half (1 1/2) inches. It had an open end without a stop valve with a red stain at one end. The bedroom was not in disarray. "About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at the back of the house before the postmortem examination was conducted by Dr. Cerillo in the presence of the police. A municipal health officer at Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo found that Ben had been dead for two to three days and his body was already decomposing. The postmortem examination of Dr. Cerillo yielded the findings quoted in the Information for parricide later filed against appellant. She concluded that the cause of Ben's death was 'cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed fracture of the occipital [bone].' "Appellant admitted killing Ben. She testified that going home after work on November 15, 1995, she got worried that her husband who was not home yet might have gone gambling since it was a payday. With her cousin Ecel Arao, appellant went to look for Ben at the marketplace and taverns at Isabel, Leyte but did not find him there. They found Ben drunk upon their return at the Genosas' house. Ecel went home despite appellant's request for her to sleep in their house.

"Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She allegedly ignored him and instead attended to their children who were doing their homework. Apparently disappointed with her reaction, Ben switched off the light and, with the use of a chopping knife, cut the television antenna or wire to keep her from watching television. According to appellant, Ben was about to attack her so she ran to the bedroom, but he got hold of her hands and whirled her around. She fell on the side of the bed and screamed for help. Ben left. At this point, appellant packed his clothes because she wanted him to leave. Seeing his packed clothes upon his return home, Ben allegedly flew into a rage, dragged appellant outside of the bedroom towards a drawer holding her by the neck, and told her 'You might as well be killed so nobody would nag me.' Appellant testified that she was aware that there was a gun inside the drawer but since Ben did not have the key to it, he got a three-inch long blade cutter from his wallet. She however, 'smashed' the arm of Ben with a pipe, causing him to drop the blade and his wallet. Appellant then 'smashed' Ben at his nape with the pipe as he was about to pick up the blade and his wallet. She thereafter ran inside the bedroom. "Appellant, however, insisted that she ended the life of her husband by shooting him. She supposedly 'distorted' the drawer where the gun was and shot Ben. He did not die on the spot, though, but in the bedroom."7 (Citations omitted) Version of the Defense Appellant relates her version of the facts in this manner: "1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor of Science in Business Administration, and was working, at the time of her husband's death, as a Secretary to the Port Managers in Ormoc City. The couple had three (3) children: John Marben, Earl Pierre and Marie Bianca. "2. Marivic and Ben had known each other since elementary school; they were neighbors in Bilwang; they were classmates; and they were third degree cousins. Both sets of parents were against their relationship, but Ben was persistent and tried to stop other suitors from courting her. Their closeness developed as he was her constant partner at fiestas. "3. After their marriage, they lived first in the home of Ben's parents, together with Ben's brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben 'lived happily'. But apparently, soon thereafter, the couple would quarrel often and their fights would become violent. "4. Ben's brother, Alex, testified for the prosecution that he could not remember when Ben and Marivic married. He said that when Ben and Marivic quarreled, generally when Ben would come home drunk, Marivic would inflict injuries on him. He said that in one incident in 1993 he saw Marivic holding a kitchen knife after Ben had shouted for help as his left hand was covered with blood. Marivic left the house but after a week, she returned apparently having asked for Ben's forgiveness. In another incident in May 22,

1994, early morning, Alex and his father apparently rushed to Ben's aid again and saw blood from Ben's forehead and Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently again asked for Ben's forgiveness. "Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and Marivic married in '1986 or 1985 more or less here in Fatima, Ormoc City.' She said as the marriage went along, Marivic became 'already very demanding. Mrs. Iluminada Genosa said that after the birth of Marivic's two sons, there were 'three (3) misunderstandings.' The first was when Marivic stabbed Ben with a table knife through his left arm; the second incident was on November 15, 1994, when Marivic struck Ben on the forehead 'using a sharp instrument until the eye was also affected. It was wounded and also the ear' and her husband went to Ben to help; and the third incident was in 1995 when the couple had already transferred to the house in Bilwang and she saw that Ben's hand was plastered as 'the bone cracked.' "Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention. "5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we collected our salary, we went to the cock-fighting place of ISCO.' They stayed there for three (3) hours, after which they went to 'Uniloks' and drank beer allegedly only two (2) bottles each. After drinking they bought barbeque and went to the Genosa residence. Marivic was not there. He stayed a while talking with Ben, after which he went across the road to wait 'for the runner and the usher of the masiao game because during that time, the hearing on masiao numbers was rampant. I was waiting for the ushers and runners so that I can place my bet.' On his way home at about 9:00 in the evening, he heard the Genosas arguing. They were quarreling loudly. Outside their house was one 'Fredo' who is used by Ben to feed his fighting cocks. Basobas' testimony on the root of the quarrel, conveniently overheard by him was Marivic saying 'I will never hesitate to kill you', whilst Ben replied 'Why kill me when I am innocent.' Basobas thought they were joking. "He did not hear them quarreling while he was across the road from the Genosa residence. Basobas admitted that he and Ben were always at the cockpits every Saturday and Sunday. He claims that he once told Ben 'before when he was stricken with a bottle by Marivic Genosa' that he should leave her and that Ben would always take her back after she would leave him 'so many times'. "Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been quarreling. He said Ben 'even had a wound' on the right forehead. He had known the couple for only one (1) year. "6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a habitual drinker. She said he provoked her, he would slap her, sometimes he would pin her down on the bed, and sometimes beat her.

"These incidents happened several times and she would often run home to her parents, but Ben would follow her and seek her out, promising to change and would ask for her forgiveness. She said after she would be beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries inflicted upon her by Ben into their reports. Marivic said Ben would beat her or quarrel with her every time he was drunk, at least three times a week. "7. In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse and violence she received at the hands of Ben. '7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting for help and through the open jalousies, he saw the spouses 'grappling with each other'. Ben had Marivic in a choke hold. He did not do anything, but had come voluntarily to testify. (Please note this was the same night as that testified to by Arturo Busabos.8) '7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that he heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped through the window of his hut which is located beside the Genosa house and saw 'the spouses grappling with each other then Ben Genosa was holding with his both hands the neck of the accused, Marivic Genosa'. He said after a while, Marivic was able to extricate he[r]self and enter the room of the children. After that, he went back to work as he was to go fishing that evening. He returned at 8:00 the next morning. (Again, please note that this was the same night as that testified to by Arturo Basobas). '7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel, Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece and he knew them to be living together for 13 or 14 years. He said the couple was always quarreling. Marivic confided in him that Ben would pawn items and then would use the money to gamble. One time, he went to their house and they were quarreling. Ben was so angry, but would be pacified 'if somebody would come.' He testified that while Ben was alive 'he used to gamble and when he became drunk, he would go to our house and he will say, 'Teody' because that was what he used to call me, 'mokimas ta,' which means 'let's go and look for a whore.' Mr. Sarabia further testified that Ben 'would box his wife and I would see bruises and one time she ran to me, I noticed a wound (the witness pointed to his right breast) as according to her a knife was stricken to her.' Mr. Sarabia also said that once he saw Ben had been injured too. He said he voluntarily testified only that morning. '7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the afternoon of November 15, 1995, Marivic went to her house and asked her help to look for Ben. They searched in the market place, several taverns and some other places, but could not find him. She accompanied Marivic home. Marivic wanted her to sleep with her in the Genosa house 'because she might be battered by her husband.' When they got to the Genosa house at about 7:00 in the evening, Miss Arano said that 'her husband was already there and was drunk.' Miss Arano knew he was drunk 'because of his staggering walking and I can also detect his face.' Marivic entered the house and she

heard them quarrel noisily. (Again, please note that this is the same night as that testified to by Arturo Basobas) Miss Arano testified that this was not the first time Marivic had asked her to sleep in the house as Marivic would be afraid every time her husband would come home drunk. At one time when she did sleep over, she was awakened at 10:00 in the evening when Ben arrived because the couple 'were very noisy in the sala and I had heard something was broken like a vase.' She said Marivic ran into her room and they locked the door. When Ben couldn't get in he got a chair and a knife and 'showed us the knife through the window grill and he scared us.' She said that Marivic shouted for help, but no one came. On cross-examination, she said that when she left Marivic's house on November 15, 1995, the couple were still quarreling. '7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at PHILPHOS, Isabel, Leyte. Marivic was his patient 'many times' and had also received treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November 9, 1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These injuries were reported in his Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted the qualifications of Dr. Caing and considered him an expert witness.' xxx xxx xxx

'Dr. Caing's clinical history of the tension headache and hypertention of Marivic on twenty-three (23) separate occasions was marked at Exhibits '2' and '2-B.' The OPD Chart of Marivic at the Philphos Clinic which reflected all the consultations made by Marivic and thesix (6) incidents of physical injuries reported was marked as Exhibit '3.' "On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the injuries were directly related to the crime committed. He said it is only a psychiatrist who is qualified to examine the psychological make-up of the patient, 'whether she is capable of committing a crime or not.' '7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that about two (2) months before Ben died, Marivic went to his office past 8:00 in the evening. She sought his help to settle or confront the Genosa couple who were experiencing 'family troubles'. He told Marivic to return in the morning, but he did not hear from her again and assumed 'that they might have settled with each other or they might have forgiven with each other.' xxx xxx xxx

"Marivic said she did not provoke her husband when she got home that night it was her husband who began the provocation. Marivic said she was frightened that her husband would hurt her and she wanted to make sure she would deliver her baby safely. In fact, Marivic had to be admitted later at the Rizal Medical Centre as she was suffering from eclampsia and hypertension, and the baby was born prematurely on December 1, 1995.

"Marivic testified that during her marriage she had tried to leave her husband at least five (5) times, but that Ben would always follow her and they would reconcile. Marivic said that the reason why Ben was violent and abusive towards her that night was because 'he was crazy about his recent girlfriend, Lulu x x x Rubillos.' "On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the bedroom; that their quarrels could be heard by anyone passing their house; that Basobas lied in his testimony; that she left for Manila the next day, November 16, 1995; that she did not bother anyone in Manila, rented herself a room, and got herself a job as a field researcher under the alias 'Marvelous Isidro'; she did not tell anyone that she was leaving Leyte, she just wanted to have a safe delivery of her baby; and that she was arrested in San Pablo, Laguna. 'Answering questions from the Court, Marivic said that she threw the gun away; that she did not know what happened to the pipe she used to 'smash him once'; that she was wounded by Ben on her wrist with the bolo; and that two (2) hours after she was 'whirled' by Ben, he kicked her 'ass' and dragged her towards the drawer when he saw that she had packed his things.' "9. The body of Ben Genosa was found on November 18, 1995 after an investigation was made of the foul odor emitting from the Genosa residence. This fact was testified to by all the prosecution witnesses and some defense witnesses during the trial. "10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the time of the incident, and among her responsibilities as such was to take charge of all medico-legal cases, such as the examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic pathologist. She merely took the medical board exams and passed in 1986. She was called by the police to go to the Genosa residence and when she got there, she saw 'some police officer and neighbor around.' She saw Ben Genosa, covered by a blanket, lying in a semi-prone position with his back to the door. He was wearing only a brief. xxxxxxxxx "Dra. Cerillo said that 'there is only one injury and that is the injury involving the skeletal area of the head' which she described as a 'fracture'. And that based on her examination, Ben had been dead 2 or 3 days. Dra. Cerillo did not testify as to what caused his death. "Dra. Cerillo was not cross-examined by defense counsel. "11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the crime of PARRICIDE committed 'with intent to kill, with treachery and evidence premeditation, x x x wilfully, unlawfully and feloniously attack, assault, hit and wound x x x her legitimate husband, with the use of a hard deadly weapon x x x which caused his death.'

"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998. "13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT finding Marivic guilty 'beyond reasonable doubt' of the crime of parricide, and further found treachery as an aggravating circumstance, thus sentencing her to the ultimate penalty of DEATH. "14. The case was elevated to this Honorable Court upon automatic review and, under date of 24 January 2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellant's Briefs he had prepared for Marivic which, for reasons of her own, were not conformed to by her. "The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of appearance of undersigned counsel. "15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office, wherein she submitted her 'Brief without counsels' to the Court. "This letter was stamp-received by the Honorable Court on 4 February 2000. "16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION praying that the Honorable Court allow the exhumation of Ben Genosa and the re-examination of the cause of his death; allow the examination of Marivic Genosa by qualified psychologists and psychiatrists to determine her state of mind at the time she killed her husband; and finally, to allow a partial re-opening of the case a quo to take the testimony of said psychologists and psychiatrists. "Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only qualified forensic pathologist in the country, who opined that the description of the death wound (as culled from the post-mortem findings, Exhibit 'A') is more akin to a gunshot wound than a beating with a lead pipe. "17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivic's URGENT OMNIBUS MOTION and remanded the case 'to the trial court for the reception of expert psychological and/or psychiatric opinion on the 'battered woman syndrome' plea, within ninety (90) days from notice, and, thereafter to forthwith report to this Court the proceedings taken, together with the copies of the TSN and relevant documentary evidence, if any, submitted.'

"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City. "Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews were done at the Penal Institution in 1999, but that the clinical interviews and psychological assessment were done at her clinic. "Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own private clinic and connected presently to the De La Salle University as a professor. Before this, she was the Head of the Psychology Department of the Assumption College; a member of the faculty of Psychology at the Ateneo de Manila University and St. Joseph's College; and was the counseling psychologist of the National Defense College. She has an AB in Psychology from the University of the Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past president of the Psychological Association of the Philippines and is a member of the American Psychological Association. She is the secretary of the International Council of Psychologists from about 68 countries; a member of the Forensic Psychology Association; and a member of the ASEAN [Counseling] Association. She is actively involved with the Philippine Judicial Academy, recently lecturing on the sociodemographic and psychological profile of families involved in domestic violence and nullity cases. She was with the Davide Commission doing research about Military Psychology. She has written a book entitled 'Energy Global Psychology' (together with Drs. Allan Tan and Allan Bernardo). The Genosa case is the first time she has testified as an expert on battered women as this is the first case of that nature. "Dra. Dayan testified that for the research she conducted, on the socio-demographic and psychological profile of families involved in domestic violence, and nullity cases, she looked at about 500 cases over a period of ten (10) years and discovered that 'there are lots of variables that cause all of this marital conflicts, from domestic violence to infidelity, to psychiatric disorder.' "Dra. Dayan described domestic violence to comprise of 'a lot of incidents of psychological abuse, verbal abuse, and emotional abuse to physical abuse and also sexual abuse.' xxx xxx xxx

"Dra. Dayan said that the batterer, just like the battered woman, 'also has a very low opinion of himself. But then emerges to have superiority complex and it comes out as being very arrogant, very hostile, very aggressive and very angry. They also had (sic) a very low tolerance for frustrations. A lot of times they are involved in vices like gambling, drinking and drugs. And they become violent.' The batterer also usually comes from a dysfunctional family which over-pampers them and makes them feel entitled to do anything. Also, they see often how their parents abused each other so 'there is a lot of modeling of aggression in the family.' "Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her husband: poverty, self-blame and guilt that she provoked the violence, the cycle itself which makes her hope her husband will change, the belief in her obligations to keep the family intact at all costs for the sake of the children. xxx xxx xxx

"Dra. Dayan said that abused wives react differently to the violence: some leave the house, or lock themselves in another room, or sometimes try to fight back triggering 'physical violence on both of them.' She said that in a 'normal marital relationship,' abuses also happen, but these are 'not consistent, not chronic, are not happening day in [and] day out.' In an 'abnormal marital relationship,' the abuse occurs day in and day out, is long lasting and 'even would cause hospitalization on the victim and even death on the victim.' xxx xxx xxx

"Dra. Dayan said that as a result of the battery of psychological tests she administered, it was her opinion that Marivic fits the profile of a battered woman because 'inspite of her feeling of self-confidence which we can see at times there are really feeling (sic) of loss, such feelings of humiliation which she sees herself as damaged and as a broken person. And at the same time she still has the imprint of all the abuses that she had experienced in the past.' xxx xxx xxx

"Dra. Dayan testified that in her studies, 'the battered woman usually has a very low opinion of herself. She has a self-defeating and self-sacrificing characteristics. x x x they usually think very lowly of themselves and so when the violence would happen, they usually think that they provoke it, that they were the one who precipitated the violence, they provoke their spouse to be physically, verbally and even sexually abusive to them.' Dra. Dayan said that usually a battered x x x comes from a dysfunctional family or from 'broken homes.'

"Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for nullity or legal separation inspite of the abuses. It was at the time of the tragedy that Marivic then thought of herself as a victim. xxx xxx xxx

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared and testified before RTC-Branch 35, Ormoc City. "Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association. He

was in the practice of psychiatry for thirty-eight (38) years. Prior to being in private practice, he was connected with the Veterans Memorial Medical Centre where he gained his training on psychiatry and neurology. After that, he was called to active duty in the Armed Forces of the Philippines, assigned to the V. Luna Medical Center for twenty six (26) years. Prior to his retirement from government service, he obtained the rank of Brigadier General. He obtained his medical degree from the University of Santo Tomas. He was also a member of the World Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical Society; and the Philippine Association of Military Surgeons. "He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy from the Period 1954 1978' which was presented twice in international congresses. He also authored 'The Mental Health of the Armed Forces of the Philippines 2000', which was likewise published internationally and locally. He had a medical textbook published on the use of Prasepam on a Parke-Davis grant; was the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he published the use of the drug Zopiclom in 1985-86. "Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology deals with the ailment of the brain and spinal cord enlarged. Psychology, on the other hand, is a bachelor degree and a doctorate degree; while one has to finish medicine to become a specialist in psychiatry. "Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already encountered a suit involving violent family relations, and testified in a case in 1964. In the Armed Forces of the Philippines, violent family disputes abound, and he has seen probably ten to twenty thousand cases. In those days, the primordial intention of therapy was reconciliation. As a result of his experience with domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City under Atty. Nenita Deproza. "As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is physical abuse: such as slapping, pushing, verbal abuse, battering and boxing a woman even to an unconscious state such that the woman is sometimes confined. The affliction of Post-Traumatic Stress Disorder 'depends on the vulnerability of the victim.' Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode of violence may induce the disorder; if the psychological stamina and physiologic constitutional stamina of the victim is stronger, 'it will take more repetitive trauma to precipitate the post-traumatic stress disorder and this x x x is very dangerous.' "In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety neurosis or neurologic anxcietism.' It is produced by 'overwhelming brutality, trauma.' xxx xxx xxx

"Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the beating or trauma as if it were real, although she is not actually being beaten at that time. She thinks 'of nothing but the suffering.' xxx xxx xxx

"A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and she is irritable and restless. She tends to become hard-headed and persistent. She has higher sensitivity and her 'self-world' is damaged. "Dr. Pajarillo said that an abnormal family background relates to an individual's illness, such as the deprivation of the continuous care and love of the parents. As to the batterer, he normally 'internalizes what is around him within the environment.' And it becomes his own personality. He is very competitive; he is aiming high all the time; he is so macho; he shows his strong faade 'but in it there are doubts in himself and prone to act without thinking.' xxx xxx xxx

"Dr. Pajarillo emphasized that 'even though without the presence of the precipator (sic) or the one who administered the battering, that re-experiencing of the trauma occurred (sic) because the individual cannot control it. It will just come up in her mind or in his mind.' xxx xxx xxx

"Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves, and 'primarily with knives. Usually pointed weapons or any weapon that is available in the immediate surrounding or in a hospital x x x because that abound in the household.' He said a victim resorts to weapons when she has 'reached the lowest rock bottom of her life and there is no other recourse left on her but to act decisively.' xxx xxx xxx

"Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for two (2) hours and seventeen (17) minutes. He used the psychological evaluation and social case studies as a help in forming his diagnosis. He came out with a Psychiatric Report, dated 22 January 2001. xxx xxx xxx

"On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed her husband Marivic'c mental condition was that she was 're-experiencing the trauma.' He said 'that we are trying to explain scientifically that the re-experiencing of the trauma is not controlled by Marivic. It will just come in flashes and probably at that point in time that things happened when the re-experiencing of the trauma flashed in her

mind.' At the time he interviewed Marivic 'she was more subdued, she was not super alert anymore x x x she is mentally stress (sic) because of the predicament she is involved.' xxx xxx xxx

"1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting on the evidence adduced as to self-defense. "2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally married and that she was therefore liable for parricide. "3. The trial court gravely erred finding the cause of death to be by beating with a pipe. "4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-beater; and further gravely erred in concluding that Ben Genosa was a battered husband. "5. The trial court gravely erred in not requiring testimony from the children of Marivic Genosa. "6. The trial court gravely erred in concluding that Marivic's flight to Manila and her subsequent apologies were indicia of guilt, instead of a clear attempt to save the life of her unborn child. "7. The trial court gravely erred in concluding that there was an aggravating circumstance of treachery. "8. The trial court gravely erred in refusing to re-evaluate the traditional elements in determining the existence of self-defense and defense of foetus in this case, thereby erroneously convicting Marivic Genosa of the crime of parricide and condemning her to the ultimate penalty of death."13 In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa. The Court's Ruling The appeal is partly meritorious. Collateral Factual Issues The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution of the principal issues. As consistently held by this Court, the findings of the trial court on the credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion or overlooked, misunderstood or misapplied material facts or circumstances of weight and substance that could affect the outcome of the case.14

"20. No rebuttal evidence or testimony was presented by either the private or the public prosecutor. Thus, in accord with the Resolution of this Honorable Court, the records of the partially re-opened trial a quo were elevated."9 Ruling of the Trial Court Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution evidence that appellant had killed the deceased while he was in bed sleeping. Further, the trial court appreciated the generic aggravating circumstance of treachery, because Ben Genosa was supposedly defenseless when he was killed -- lying in bed asleep when Marivic smashed him with a pipe at the back of his head. The capital penalty having been imposed, the case was elevated to this Court for automatic review. Supervening Circumstances On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination of appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she had killed her spouse; and (3) the inclusion of the said experts' reports in the records of the case for purposes of the automatic review or, in the alternative, a partial reopening of the case for the lower court to admit the experts' testimonies. On September 29, 2000, this Court issued a Resolution granting in part appellant's Motion, remanding the case to the trial court for the reception of expert psychological and/or psychiatric opinion on the "battered woman syndrome" plea; and requiring the lower court to report thereafter to this Court the proceedings taken as well as to submit copies of the TSN and additional evidence, if any. Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two clinical psychologists, Drs. Natividad Dayan10and Alfredo Pajarillo,11 supposedly experts on domestic violence. Their testimonies, along with their documentary evidence, were then presented to and admitted by the lower court before finally being submitted to this Court to form part of the records of the case.12 The Issues Appellant assigns the following alleged errors of the trial court for this Court's consideration:

In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or misappreciation of material facts that would reverse or modify the trial court's disposition of the case. In any event, we will now briefly dispose of these alleged errors of the trial court. First, we do not agree that the lower court promulgated "an obviously hasty decision without reflecting on the evidence adduced as to self-defense." We note that in his 17-page Decision, Judge Fortunito L. Madrona summarized the testimonies of both the prosecution and the defense witnesses and -- on the basis of those and of the documentary evidence on record -- made his evaluation, findings and conclusions. He wrote a 3-page discourse assessing the testimony and the self-defense theory of the accused. While she, or even this Court, may not agree with the trial judge's conclusions, we cannot peremptorily conclude, absent substantial evidence, that he failed to reflect on the evidence presented. Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at least 13 hearings were held for over a year. It took the trial judge about two months from the conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case with dispatch should not be taken against him, much less used to condemn him for being unduly hasty. If at all, the dispatch with which he handled the case should be lauded. In any case, we find his actions in substantial compliance with his constitutional obligation.15 Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been legally married, despite the non-presentation of their marriage contract. In People v. Malabago,16 this Court held: "The key element in parricide is the relationship of the offender with the victim. In the case of parricide of a spouse, the best proof of the relationship between the accused and the deceased is the marriage certificate. In the absence of a marriage certificate, however, oral evidence of the fact of marriage may be considered by the trial court if such proof is not objected to." Two of the prosecution witnesses -- namely, the mother and the brother of appellant's deceased spouse -- attested in court that Ben had been married to Marivic.17 The defense raised no objection to these testimonies. Moreover, during her direct examination, appellant herself made a judicial admission of her marriage to Ben.18 Axiomatic is the rule that a judicial admission is conclusive upon the party making it, except only when there is a showing that (1) the admission was made through a palpable mistake, or (2) no admission was in fact made.19Other than merely attacking the non-presentation of the marriage contract, the defense offered no proof that the admission made by appellant in court as to the fact of her marriage to the deceased was made through a palpable mistake. Third, under the circumstances of this case, the specific or direct cause of Ben's death -- whether by a gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its September 29, 2000 Resolution, "[c]onsidering that the appellant has admitted the fact of killing her husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which of

said acts actually caused the victim's death." Determining which of these admitted acts caused the death is not dispositive of the guilt or defense of appellant. Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk, gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant had not raised the novel defense of "battered woman syndrome," for which such evidence may have been relevant. Her theory of self-defense was then the crucial issue before the trial court. As will be discussed shortly, the legal requisites of self-defense under prevailing jurisprudence ostensibly appear inconsistent with the surrounding facts that led to the death of the victim. Hence, his personal character, especially his past behavior, did not constitute vital evidence at the time. Fifth, the trial court surely committed no error in not requiring testimony from appellant's children. As correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction and control of the public prosecutor, in whom lies the discretion to determine which witnesses and evidence are necessary to present.20 As the former further points out, neither the trial court nor the prosecution prevented appellant from presenting her children as witnesses. Thus, she cannot now fault the lower court for not requiring them to testify. Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life of her unborn child. Any reversible error as to the trial court's appreciation of these circumstances has little bearing on the final resolution of the case. First Legal Issue: Self-Defense and Defense of a Fetus Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or defense of her unborn child. When the accused admits killing the victim, it is incumbent upon her to prove any claimed justifying circumstance by clear and convincing evidence.21Well-settled is the rule that in criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the burden of proof from the prosecution to the defense.22 The Battered Woman Syndrome In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of self-defense or, at the least, incomplete self-defense.23 By appreciating evidence that a victim or defendant is afflicted with the syndrome, foreign courts convey their "understanding of the justifiably fearful state of mind of a person who has been cyclically abused and controlled over a period of time."24 A battered woman has been defined as a woman "who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimate relationship with men. Furthermore, in order to be classified as a battered woman, the couple must

go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman."25 Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about the home, the family and the female sex role; emotional dependence upon the dominant male; the tendency to accept responsibility for the batterer's actions; and false hopes that the relationship will improve.26 More graphically, the battered woman syndrome is characterized by the so-called "cycle of violence,"27 which has three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent) phase.28 During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be double-edged, because her "placatory" and passive behavior legitimizes his belief that he has the right to abuse her in the first place. However, the techniques adopted by the woman in her effort to placate him are not usually successful, and the verbal and/or physical abuse worsens. Each partner senses the imminent loss of control and the growing tension and despair. Exhausted from the persistent stress, the battered woman soon withdraws emotionally. But the more she becomes emotionally unavailable, the more the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the violence "spirals out of control" and leads to an acute battering incident.29 The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no control; only the batterer may put an end to the violence. Its nature can be as unpredictable as the time of its explosion, and so are his reasons for ending it. The battered woman usually realizes that she cannot reason with him, and that resistance would only exacerbate her condition. At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later clearly remember every detail. Her apparent passivity in the face of acute violence may be rationalized thus: the batterer is almost always much stronger physically, and she knows from her past painful experience that it is futile to fight back. Acute battering incidents are often very savage and out of control, such that innocent bystanders or intervenors are likely to get hurt.30 The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and tries to make up for it, begging for her forgiveness and promising never to beat her again. On the other hand, the battered woman also tries to convince herself that the battery will never happen

again; that her partner will change for the better; and that this "good, gentle and caring man" is the real person whom she loves. A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth, though, is that the chances of his reforming, or seeking or receiving professional help, are very slim, especially if she remains with him. Generally, only after she leaves him does he seek professional help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most thoroughly tormented psychologically. The illusion of absolute interdependency is well-entrenched in a battered woman's psyche. In this phase, she and her batterer are indeed emotionally dependent on each other -- she for his nurturant behavior, he for her forgiveness. Underneath this miserable cycle of "tension, violence and forgiveness," each partner may believe that it is better to die than to be separated. Neither one may really feel independent, capable of functioning without the other.31 History of Abuse in the Present Case To show the history of violence inflicted upon appellant, the defense presented several witnesses. She herself described her heart-rending experience as follows: "ATTY. TABUCANON Q How did you describe your marriage with Ben Genosa? A In the first year, I lived with him happily but in the subsequent year he was cruel to me and a behavior of habitual drinker. Q You said that in the subsequent year of your marriage, your husband was abusive to you and cruel. In what way was this abusive and cruelty manifested to you? A He always provoke me in everything, he always slap me and sometimes he pinned me down on the bed and sometimes beat me. Q How many times did this happen? A Several times already. Q What did you do when these things happen to you? A I went away to my mother and I ran to my father and we separate each other. Q What was the action of Ben Genosa towards you leaving home?

A He is following me, after that he sought after me. Q What will happen when he follow you? A He said he changed, he asked for forgiveness and I was convinced and after that I go to him and he said 'sorry'. Q During those times that you were the recipient of such cruelty and abusive behavior by your husband, were you able to see a doctor? A Yes, sir. Q Who are these doctors? A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. xxx xxx xxx

Q Is it daily, weekly, monthly or how many times in a month or in a week? A Three times a week. Q Do you mean three times a week he would beat you? A Not necessarily that he would beat me but sometimes he will just quarrel me." 32 Referring to his "Out-Patient Chart"33 on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing bolstered her foregoing testimony on chronic battery in this manner: "Q So, do you have a summary of those six (6) incidents which are found in the chart of your clinic? A Yes, sir. Q Who prepared the list of six (6) incidents, Doctor? A I did. Q Will you please read the physical findings together with the dates for the record. A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness of eye. Attending physician: Dr. Lucero; 2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast. Attending physician: Dr. Canora; 3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

Q You said that you saw a doctor in relation to your injuries? A Yes, sir. Q Who inflicted these injuries? A Of course my husband. Q You mean Ben Genosa? A Yes, sir. xxx xxx xxx

4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending physician: Dr. Caing; 5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and 6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending physician: Dr. Canora. Q Among the findings, there were two (2) incidents wherein you were the attending physician, is that correct? A Yes, sir.

[Court] /to the witness Q How frequent was the alleged cruelty that you said? A Everytime he got drunk. Q No, from the time that you said the cruelty or the infliction of injury inflicted on your occurred, after your marriage, from that time on, how frequent was the occurrence? A Everytime he got drunk.

Q Did you actually physical examine the accused? A Yes, sir. Q Now, going to your finding no. 3 where you were the one who attended the patient. What do you mean by abrasion furuncle left axilla? A Abrasion is a skin wound usually when it comes in contact with something rough substance if force is applied. Q What is meant by furuncle axilla? A It is secondary of the light infection over the abrasion.

A As per record, yes. Q What was the date? A It was on November 6, 1995. Q So, did you actually see the accused physically? A Yes, sir. Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant? A Yes, sir.

Q What is meant by pain mastitis secondary to trauma? Q Being a doctor, can you more engage at what stage of pregnancy was she? A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain] meaning there is tenderness. When your breast is traumatized, there is tenderness pain. Q So, these are objective physical injuries. Doctor? xxx xxx xxx A Eight (8) months pregnant. Q So in other words, it was an advance stage of pregnancy? A Yes, sir. Q What was your November 6, 1995 examination, was it an examination about her pregnancy or for some other findings? A No, she was admitted for hypertension headache which complicates her pregnancy. Q When you said admitted, meaning she was confined? A Yes, sir. Q For how many days? A One day. xxx Q Where? A At PHILPHOS Hospital. xxx xxx xxx

Q Were you able to talk with the patient? A Yes, sir. Q What did she tell you? A As a doctor-patient relationship, we need to know the cause of these injuries. And she told me that it was done to her by her husband. Q You mean, Ben Genosa? A Yes, sir. xxx xxx

ATTY. TABUCANON: Q By the way Doctor, were you able to physical examine the accused sometime in the month of November, 1995 when this incident happened?

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her personally on November 6, 1995 and she was 8 months pregnant. What is this all about? A Because she has this problem of tension headache secondary to hypertension and I think I have a record here, also the same period from 1989 to 1995, she had a consultation for twenty-three (23) times. Q For what? A Tension headache. Q Can we say that specially during the latter consultation, that the patient had hypertension? A The patient definitely had hypertension. It was refractory to our treatment. She does not response when the medication was given to her, because tension headache is more or less stress related and emotional in nature. Q What did you deduce of tension headache when you said is emotional in nature? A From what I deduced as part of our physical examination of the patient is the family history in line of giving the root cause of what is causing this disease. So, from the moment you ask to the patient all comes from the domestic problem. Q You mean problem in her household? A Probably. Q Can family trouble cause elevation of blood pressure, Doctor? A Yes, if it is emotionally related and stressful it can cause increases in hypertension which is unfortunately does not response to the medication. Q In November 6, 1995, the date of the incident, did you take the blood pressure of the accused? A On November 6, 1995 consultation, the blood pressure was 180/120.

Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure? A It was dangerous to the child or to the fetus." 34 Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte, testified that he had seen the couple quarreling several times; and that on some occasions Marivic would run to him with bruises, confiding that the injuries were inflicted upon her by Ben.35 Ecel Arano also testified36 that for a number of times she had been asked by Marivic to sleep at the Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one occasion that Ecel did sleep over, she was awakened about ten o'clock at night, because the couple "were very noisy and I heard something was broken like a vase." Then Marivic came running into Ecel's room and locked the door. Ben showed up by the window grill atop a chair, scaring them with a knife. On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but they were unable to. They returned to the Genosa home, where they found him already drunk. Again afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave. On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or heard the couple quarreling.37 Marivic relates in detail the following backdrop of the fateful night when life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her: "ATTY. TABUCANON: Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening? A Whole morning and in the afternoon, I was in the office working then after office hours, I boarded the service bus and went to Bilwang. When I reached Bilwang, I immediately asked my son, where was his father, then my second child said, 'he was not home yet'. I was worried because that was payday, I was anticipating that he was gambling. So while waiting for him, my eldest son arrived from school, I prepared dinner for my children. Q This is evening of November 15, 1995? A Yes, sir. Q What time did Ben Genosa arrive?

Q Is this considered hypertension? A When he arrived, I was not there, I was in Isabel looking for him. A Yes, sir, severe. Q So when he arrived you were in Isabel looking for him?

A Yes, sir. Q Did you come back to your house? A Yes, sir. Q By the way, where was your conjugal residence situated this time? A Bilwang. Q Is this your house or you are renting? A Renting. Q What time were you able to come back in your residence at Bilwang? A I went back around almost 8:00 o'clock. Q What happened when you arrived in your residence? A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time because I had fears that he was again drunk and I was worried that he would again beat me so I requested my cousin to sleep with me, but she resisted because she had fears that the same thing will happen again last year. Q Who was this cousin of yours who you requested to sleep with you? A Ecel Arao, the one who testified. Q Did Ecel sleep with you in your house on that evening? A No, because she expressed fears, she said her father would not allow her because of Ben. Q During this period November 15, 1995, were you pregnant? A Yes, 8 months. Q How advance was your pregnancy? A Eight (8) months. Q Was the baby subsequently born?

A Yes, sir. Q What's the name of the baby you were carrying at that time? A Marie Bianca. Q What time were you able to meet personally your husband? A Yes, sir. Q What time? A When I arrived home, he was there already in his usual behavior. Q Will you tell this Court what was his disposition? A He was drunk again, he was yelling in his usual unruly behavior. Q What was he yelling all about? A His usual attitude when he got drunk. Q You said that when you arrived, he was drunk and yelling at you? What else did he do if any? A He is nagging at me for following him and he dared me to quarrel him. Q What was the cause of his nagging or quarreling at you if you know? A He was angry at me because I was following x x x him, looking for him. I was just worried he might be overly drunk and he would beat me again. Q You said that he was yelling at you, what else, did he do to you if any? A He was nagging at me at that time and I just ignore him because I want to avoid trouble for fear that he will beat me again. Perhaps he was disappointed because I just ignore him of his provocation and he switch off the light and I said to him, 'why did you switch off the light when the children were there.' At that time I was also attending to my children who were doing their assignments. He was angry with me for not answering his challenge, so he went to the kitchen and [got] a bolo and cut the antenna wire to stop me from watching television. Q What did he do with the bolo?

A He cut the antenna wire to keep me from watching T.V. Q What else happened after he cut the wire? A He switch off the light and the children were shouting because they were scared and he was already holding the bolo. Q How do you described this bolo?

Q During this time, where were your children, what were their reactions? A After a couple of hours, he went back again and he got angry with me for packing his clothes, then he dragged me again of the bedroom holding my neck. Q You said that when Ben came back to your house, he dragged you? How did he drag you? COURT INTERPRETER:

A 1 1/2 feet. Q What was the bolo used for usually? A For chopping meat. Q You said the children were scared, what else happened as Ben was carrying that bolo? A He was about to attack me so I run to the room. Q What do you mean that he was about to attack you? A When I attempt to run he held my hands and he whirled me and I fell to the bedside. Q So when he whirled you, what happened to you? A I screamed for help and then he left. Q You said earlier that he whirled you and you fell on the bedside? A Yes, sir. Q You screamed for help and he left, do you know where he was going? A Outside perhaps to drink more. Q When he left what did you do in that particular time? A I packed all his clothes. Q What was your reason in packing his clothes? A I wanted him to leave us. A Outside the bedroom and he wanted to get something and then he kept on shouting at me that 'you might as well be killed so there will be nobody to nag me.' Q So you said that he dragged you towards the drawer? A Yes, sir. Q What is there in the drawer? A I was aware that it was a gun. COURT INTERPRETER: (At this juncture the witness started crying). ATTY. TABUCANON: Q Were you actually brought to the drawer? A Yes, sir. Q What happened when you were brought to that drawer? A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he pulled his wallet which contained a The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck) A And he dragged me towards the door backward. ATTY. TABUCANON: Q Where did he bring you?

blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very moment everything on my mind was to pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit. COURT INTERPRETER: (The witness at this juncture is crying intensely). xxx xxx xxx

Q How did he do it? A He wanted to cut my throat. Q With the same blade? A Yes, sir, that was the object used when he intimidate me." 38 In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions totaling about seventeen hours. Based on their talks, the former briefly related the latter's ordeal to the court a quo as follows: "Q: What can you say, that you found Marivic as a battered wife? Could you in layman's term describe to this Court what her life was like as said to you? A: What I remember happened then was it was more than ten years, that she was suffering emotional anguish. There were a lot of instances of abuses, to emotional abuse, to verbal abuse and to physical abuse. The husband had a very meager income, she was the one who was practically the bread earner of the family. The husband was involved in a lot of vices, going out with barkadas, drinking, even womanizing being involved in cockfight and going home very angry and which will trigger a lot of physical abuse. She also had the experience a lot of taunting from the husband for the reason that the husband even accused her of infidelity, the husband was saying that the child she was carrying was not his own. So she was very angry, she was at the same time very depressed because she was also aware, almost like living in purgatory or even hell when it was happening day in and day out." 39 In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly put forward, additional supporting evidence as shown below: "Q In your first encounter with the appellant in this case in 1999, where you talked to her about three hours, what was the most relevant information did you gather? A The most relevant information was the tragedy that happened. The most important information were escalating abuses that she had experienced during her marital life. Q Before you met her in 1999 for three hours, we presume that you already knew of the facts of the case or at least you have substantial knowledge of the facts of the case? A I believe I had an idea of the case, but I do not know whether I can consider them as substantial. xxx xxx xxx

ATTY. TABUCANON: Q Talking of drawer, is this drawer outside your room? A Outside. Q In what part of the house? A Dining. Q Where were the children during that time? A My children were already asleep. Q You mean they were inside the room? A Yes, sir. Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like? A Three (3) inches long and 1/2 inch wide. Q Is it a flexible blade? A It's a cutter. Q How do you describe the blade, is it sharp both edges? A Yes, because he once used it to me.

Q Did you gather an information from Marivic that on the side of her husband they were fond of battering their wives? A I also heard that from her? Q You heard that from her? A Yes, sir.

Parenthetically, the credibility of appellant was demonstrated as follows: "Q And you also said that you administered [the] objective personality test, what x x x [is this] all about? A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test is to find out about the lying prone[ne]ss of the person. Q What do you mean by that?

Q Did you ask for a complete example who are the relatives of her husband that were fond of battering their wives? A What I remember that there were brothers of her husband who are also battering their wives. Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her husband followed her and battered [her] several times in that room? A She told me about that. Q Did she inform you in what hotel in Ormoc? A Sir, I could not remember but I was told that she was battered in that room. Q Several times in that room? A Yes, sir. What I remember was that there is no problem about being battered, it really happened. Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think that is the first time that we have this in the Philippines, what is your opinion? A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a self-defense. I also believe that there had been provocation and I also believe that she became a disordered person. She had to suffer anxiety reaction because of all the battering that happened and so she became an abnormal person who had lost she's not during the time and that is why it happened because of all the physical battering, emotional battering, all the psychological abuses that she had experienced from her husband. Q I do believe that she is a battered wife. Was she extremely battered? A Sir, it is an extreme form of battering. Yes.40

A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can exaggerate or x x x [will] tell a lie[?] Q And what did you discover on the basis of this objective personality test? A She was a person who passed the honesty test. Meaning she is a person that I can trust. That the data that I'm gathering from her are the truth."41 The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric Report,42 which was based on his interview and examination of Marivic Genosa. The Report said that during the first three years of her marriage to Ben, everything looked good -- the atmosphere was fine, normal and happy -- until "Ben started to be attracted to other girls and was also enticed in[to] gambling[,] especially cockfighting. x x x. At the same time Ben was often joining his barkada in drinking sprees." The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to his wife. The Report continued: "At first, it was verbal and emotional abuses but as time passed, he became physically abusive. Marivic claimed that the viciousness of her husband was progressive every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected that her husband went for a drinking [spree]. They had been married for twelve years[;] and practically more than eight years, she was battered and maltreated relentlessly and mercilessly by her husband whenever he was drunk." Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the Report, "[s]he also sought the advice and help of close relatives and well-meaning friends in spite of her feeling ashamed of what was happening to her. But incessant battering became more and more frequent and more severe. x x x."43 From the totality of evidence presented, there is indeed no doubt in the Court's mind that Appellant Marivic Genosa was a severely abused person. Effect of Battery on Appellant Because of the recurring cycles of violence experienced by the abused woman, her state of mind metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an ordinary, reasonable person who is evaluating the events immediately surrounding the incident. A

Canadian court has aptly pointed out that expert evidence on the psychological effect of battering on wives and common law partners are both relevant and necessary. "How can the mental state of the appellant be appreciated without it? The average member of the public may ask: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called 'battered wife syndrome.'"44 To understand the syndrome properly, however, one's viewpoint should not be drawn from that of an ordinary, reasonable person. What goes on in the mind of a person who has been subjected to repeated, severe beatings may not be consistent with -- nay, comprehensible to -- those who have not been through a similar experience. Expert opinion is essential to clarify and refute common myths and misconceptions about battered women.45 The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had a significant impact in the United States and the United Kingdom on the treatment and prosecution of cases, in which a battered woman is charged with the killing of her violent partner. The psychologist explains that the cyclical nature of the violence inflicted upon the battered woman immobilizes the latter's "ability to act decisively in her own interests, making her feel trapped in the relationship with no means of escape."46 In her years of research, Dr. Walker found that "the abuse often escalates at the point of separation and battered women are in greater danger of dying then."47 Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a very low opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen the violence would happen, they usually think that they provoke[d] it, that they were the one[s] who precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even sexually abusive to them."48 According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an abusive partner -- poverty, self-blame and guilt arising from the latter's belief that she provoked the violence, that she has an obligation to keep the family intact at all cost for the sake of their children, and that she is the only hope for her spouse to change.49 The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in suits involving violent family relations, having evaluated "probably ten to twenty thousand" violent family disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a result of his experience with domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City. As such, he got involved in about forty (40) cases of severe domestic violence, in which the physical abuse on the woman would sometimes even lead to her loss of consciousness.50 Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress disorder, a form of "anxiety neurosis or neurologic anxietism."51 After being repeatedly and severely abused, battered persons "may believe that they are essentially helpless, lacking power to change their situation. x x x [A]cute battering incidents can have the effect of stimulating the

development of coping responses to the trauma at the expense of the victim's ability to muster an active response to try to escape further trauma. Furthermore, x x x the victim ceases to believe that anything she can do will have a predictable positive effect."52 A study53 conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that "even if a person has control over a situation, but believes that she does not, she will be more likely to respond to that situation with coping responses rather than trying to escape." He said that it was the cognitive aspect -- the individual's thoughts -- that proved all-important. He referred to this phenomenon as "learned helplessness." "[T]he truth or facts of a situation turn out to be less important than the individual's set of beliefs or perceptions concerning the situation. Battered women don't attempt to leave the battering situation, even when it may seem to outsiders that escape is possible, because they cannot predict their own safety; they believe that nothing they or anyone else does will alter their terrible circumstances."54 Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of her partner, she also believes that he is capable of killing her, and that there is no escape.55 Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the relationship.56 Unless a shelter is available, she stays with her husband, not only because she typically lacks a means of self-support, but also because she fears that if she leaves she would be found and hurt even more.57 In the instant case, we meticulously scoured the records for specific evidence establishing that appellant, due to the repeated abuse she had suffered from her spouse over a long period of time, became afflicted with the battered woman syndrome. We, however, failed to find sufficient evidence that would support such a conclusion. More specifically, we failed to find ample evidence that would confirm the presence of the essential characteristics of BWS. The defense fell short of proving all three phases of the "cycle of violence" supposedly characterizing the relationship of Ben and Marivic Genosa. No doubt there were acute battering incidents. In relating to the court a quo how the fatal incident that led to the death of Ben started, Marivic perfectly described the tension-building phase of the cycle. She was able to explain in adequate detail the typical characteristics of this stage. However, that single incident does not prove the existence of the syndrome. In other words, she failed to prove that in at least another battering episode in the past, she had gone through a similar pattern. How did the tension between the partners usually arise or build up prior to acute battering? How did Marivic normally respond to Ben's relatively minor abuses? What means did she employ to try to prevent the situation from developing into the next (more violent) stage? Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply mentioned that she would usually run away to her mother's or father's house;58 that Ben would seek her out, ask for her forgiveness and promise to change; and that believing his words, she would return to their common abode. Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe that she was the only hope for Ben to reform? And that she was the sole support of his emotional stability and well-being? Conversely, how dependent was she on him? Did she feel

helpless and trapped in their relationship? Did both of them regard death as preferable to separation? In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that would clearly and fully demonstrate the essential characteristics of the syndrome. The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they were able to explain fully, albeit merely theoretically and scientifically, how the personality of the battered woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted upon her by her partner or spouse. They corroborated each other's testimonies, which were culled from their numerous studies of hundreds of actual cases. However, they failed to present in court the factual experiences and thoughts that appellant had related to them -- if at all -based on which they concluded that she had BWS. We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven in order to be appreciated. To repeat, the records lack supporting evidence that would establish all the essentials of the battered woman syndrome as manifested specifically in the case of the Genosas. BWS as Self-Defense In any event, the existence of the syndrome in a relationship does not in itself establish the legal right of the woman to kill her abusive partner. Evidence must still be considered in the context of self-defense.59 From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense is the state of mind of the battered woman at the time of the offense60 -- she must have actually feared imminent harm from her batterer and honestly believed in the need to kill him in order to save her life. Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face a real threat on one's life; and the peril sought to be avoided must be imminent and actual, not merely imaginary.61 Thus, the Revised Penal Code provides the following requisites and effect of self-defense:62 "Art. 11. Justifying circumstances. -- The following do not incur any criminal liability: "1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur; First. Unlawful aggression; Second. Reasonable necessity of the means employed to prevent or repel it; Third. Lack of sufficient provocation on the part of the person defending himself."

Unlawful aggression is the most essential element of self-defense.63 It presupposes actual, sudden and unexpected attack -- or an imminent danger thereof -- on the life or safety of a person.64 In the present case, however, according to the testimony of Marivic herself, there was a sufficient time interval between the unlawful aggression of Ben and her fatal attack upon him. She had already been able to withdraw from his violent behavior and escape to their children's bedroom. During that time, he apparently ceased his attack and went to bed. The reality or even the imminence of the danger he posed had ended altogether. He was no longer in a position that presented an actual threat on her life or safety. Had Ben still been awaiting Marivic when she came out of their children's bedroom -- and based on past violent incidents, there was a great probability that he would still have pursued her and inflicted graver harm -- then, the imminence of the real threat upon her life would not have ceased yet. Where the brutalized person is already suffering from BWS, further evidence of actual physical assault at the time of the killing is not required. Incidents of domestic battery usually have a predictable pattern. To require the battered person to await an obvious, deadly attack before she can defend her life "would amount to sentencing her to 'murder by installment.'"65 Still, impending danger (based on the conduct of the victim in previous battering episodes) prior to the defendant's use of deadly force must be shown. Threatening behavior or communication can satisfy the required imminence of danger.66 Considering such circumstances and the existence of BWS, selfdefense may be appreciated. We reiterate the principle that aggression, if not continuous, does not warrant self-defense.67 In the absence of such aggression, there can be no self-defense -- complete or incomplete -- on the part of the victim.68 Thus, Marivic's killing of Ben was not completely justified under the circumstances. Mitigating Circumstances Present In any event, all is not lost for appellant. While she did not raise any other modifying circumstances that would alter her penalty, we deem it proper to evaluate and appreciate in her favor circumstances that mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal case opens it wholly for review on any issue, including that which has not been raised by the parties.69 From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological Evaluation Report dated November 29, 2000, opined as follows: "This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced with her husband constitutes a form of [cumulative] provocation which broke down her psychological resistance and natural self-control. It is very clear that she developed heightened sensitivity to sight of impending danger her husband posed continuously. Marivic truly experienced at the hands of her abuser husband a state of psychological paralysis which can only be ended by an act of violence on her part." 70 Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of "repetitious pain taking, repetitious battering, [and] repetitious maltreatment" as well as the severity and the prolonged administration of the battering is posttraumatic stress disorder.71Expounding thereon, he said:

"Q What causes the trauma, Mr. Witness? A What causes the trauma is probably the repetitious battering. Second, the severity of the battering. Third, the prolonged administration of battering or the prolonged commission of the battering and the psychological and constitutional stamina of the victim and another one is the public and social support available to the victim. If nobody is interceding, the more she will go to that disorder.... xxx xxx xxx

A Yes, your Honor. Q As you were saying[,] it x x x obfuscated her rationality? A Of course obfuscated."73 In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in "cumulative provocation which broke down her psychological resistance and natural self-control," "psychological paralysis," and "difficulty in concentrating or impairment of memory." Based on the explanations of the expert witnesses, such manifestations were analogous to an illness that diminished the exercise by appellant of her will power without, however, depriving her of consciousness of her acts. There was, thus, a resulting diminution of her freedom of action, intelligence or intent. Pursuant to paragraphs 974 and 1075 of Article 13 of the Revised Penal Code, this circumstance should be taken in her favor and considered as a mitigating factor. 76 In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an impulse so powerful as to have naturally produced passion and obfuscation. It has been held that this state of mind is present when a crime is committed as a result of an uncontrollable burst of passion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to overcome reason.77To appreciate this circumstance, the following requisites should concur: (1) there is an act, both unlawful and sufficient to produce such a condition of mind; and (2) this act is not far removed from the commission of the crime by a considerable length of time, during which the accused might recover her normal equanimity.78 Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his being killed by Marivic. He had further threatened to kill her while dragging her by the neck towards a cabinet in which he had kept a gun. It should also be recalled that she was eight months pregnant at the time. The attempt on her life was likewise on that of her fetus.79 His abusive and violent acts, an aggression which was directed at the lives of both Marivic and her unborn child, naturally produced passion and obfuscation overcoming her reason. Even though she was able to retreat to a separate room, her emotional and mental state continued. According to her, she felt her blood pressure rise; she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a fit of indignation, she pried open the cabinet drawer where Ben kept a gun, then she took the weapon and used it to shoot him. The confluence of these events brings us to the conclusion that there was no considerable period of time within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo's testimony80 that with "neurotic anxiety" -- a psychological effect on a victim of "overwhelming brutality [or] trauma" -- the victim relives the beating or trauma as if it were real, although she is not actually being beaten at the time. She cannot control "re-experiencing the whole thing, the most vicious and the trauma that she suffered." She thinks "of nothing but the suffering." Such reliving which is beyond the control of a person under similar circumstances, must have been what Marivic experienced during the brief time interval and prevented her from recovering her normal equanimity. Accordingly, she should further be credited with the mitigating circumstance of passion and obfuscation.

Q You referred a while ago to severity. What are the qualifications in terms of severity of the postraumatic stress disorder, Dr. Pajarillo? A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is injury to the head, banging of the head like that. It is usually the very very severe stimulus that precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like holding a pillow on the face, strangulating the individual, suffocating the individual, and boxing the individual. In this situation therefore, the victim is heightened to painful stimulus, like for example she is pregnant, she is very susceptible because the woman will not only protect herself, she is also to protect the fetus. So the anxiety is heightened to the end [sic] degree. Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify? A We classify the disorder as [acute], or chronic or delayed or [a]typical. Q Can you please describe this pre[-]classification you called delayed or [atypical]? A The acute is the one that usually require only one battering and the individual will manifest now a severe emotional instability, higher irritability remorse, restlessness, and fear and probably in most [acute] cases the first thing will be happened to the individual will be thinking of suicide. Q And in chronic cases, Mr. Witness? A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is longer than six (6) months. The [acute] is only the first day to six (6) months. After this six (6) months you become chronic. It is stated in the book specifically that after six (6) months is chronic. The [a]typical one is the repetitious battering but the individual who is abnormal and then become normal. This is how you get neurosis from neurotic personality of these cases of post[t]raumatic stress disorder." 72 Answering the questions propounded by the trial judge, the expert witness clarified further: "Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x his or her mental capacity?

It should be clarified that these two circumstances -- psychological paralysis as well as passion and obfuscation -- did not arise from the same set of facts. On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a period of time resulted in her psychological paralysis, which was analogous to an illness diminishing the exercise of her will power without depriving her of consciousness of her acts. The second circumstance, on the other hand, resulted from the violent aggression he had inflicted on her prior to the killing. That the incident occurred when she was eight months pregnant with their child was deemed by her as an attempt not only on her life, but likewise on that of their unborn child. Such perception naturally produced passion and obfuscation on her part. Second Legal Issue: Treachery There is treachery when one commits any of the crimes against persons by employing means, methods or forms in the execution thereof without risk to oneself arising from the defense that the offended party might make.81 In order to qualify an act as treacherous, the circumstances invoked must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or conjectures, which have no place in the appreciation of evidence.82 Because of the gravity of the resulting offense, treachery must be proved as conclusively as the killing itself.83 Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of Ben had been found lying in bed with an "open, depressed, circular" fracture located at the back of his head. As to exactly how and when he had been fatally attacked, however, the prosecution failed to establish indubitably. Only the following testimony of appellant leads us to the events surrounding his death: "Q You said that when Ben came back to your house, he dragged you? How did he drag you? COURT: The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck) A And he dragged me towards the door backward. ATTY. TABUCANON: Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me that 'you might as well be killed so there will be nobody to nag me' Q So you said that he dragged you towards the drawer? A Yes, sir. Q What is there in the drawer? A I was aware that it was a gun. COURT INTERPRETER (At this juncture the witness started crying) ATTY. TABUCANON: Q Were you actually brought to the drawer? A Yes, sir. Q What happened when you were brought to that drawer? A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very moment everything on my mind was to pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit. COURT INTERPRETER (The witness at this juncture is crying intensely). xxx xxx xxx

Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like? A Three (3) inches long and inch wide. Q It is a flexible blade?

A It's a cutter. Q How do you describe the blade, is it sharp both edges? A Yes, because he once used it to me. Q How did he do it? A He wanted to cut my throat. Q With the same blade? A Yes, sir, that was the object used when he intimidate me. xxx xxx xxx

A Considering all the physical sufferings that I've been through with him, I took pity on myself and I felt I was about to die also because of my blood pressure and the baby, so I got that gun and I shot him. COURT /to Atty. Tabucanon Q You shot him? A Yes, I distorted the drawer."84 The above testimony is insufficient to establish the presence of treachery. There is no showing of the victim's position relative to appellant's at the time of the shooting. Besides, equally axiomatic is the rule that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as a qualifying circumstance, because the deceased may be said to have been forewarned and to have anticipated aggression from the assailant.85 Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have been consciously and deliberately chosen for the specific purpose of accomplishing the unlawful act without risk from any defense that might be put up by the party attacked.86There is no showing, though, that the present appellant intentionally chose a specific means of successfully attacking her husband without any risk to herself from any retaliatory act that he might make. To the contrary, it appears that the thought of using the gun occurred to her only at about the same moment when she decided to kill her batterer-spouse. In the absence of any convincing proof that she consciously and deliberately employed the method by which she committed the crime in order to ensure its execution, this Court resolves the doubt in her favor.87 Proper Penalty The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to death. Since two mitigating circumstances and no aggravating circumstance have been found to have attended the commission of the offense, the penalty shall be lowered by one (1) degree, pursuant to Article 64 of paragraph 588 of the same Code.89 The penalty of reclusion temporal in its medium period is imposable, considering that two mitigating circumstances are to be taken into account in reducing the penalty by one degree, and no other modifying circumstances were shown to have attended the commission of the offense.90 Under the Indeterminate Sentence Law, the minimum of the penalty shall be within the range of that which is next lower in degree -- prision mayor -- and the maximum shall be within the range of the medium period of reclusion temporal. Considering all the circumstances of the instant case, we deem it just and proper to impose the penalty of prision mayor in its minimum period, or six (6) years and one (1) day in prison as minimum; to reclusion temporal in its medium period, or 14 years 8 months and 1 day as maximum. Noting that appellant has already served the minimum period, she may now apply for and be released from detention on parole.91

ATTY. TABUCANON: Q You said that this blade fell from his grip, is it correct? A Yes, because I smashed him. Q What happened? A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to the other room. Q What else happened? A When I was in the other room, I felt the same thing like what happened before when I was admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I was frightened I was about to die because of my blood pressure. COURT INTERPRETER: (Upon the answer of the witness getting the pipe and smashed him, the witness at the same time pointed at the back of her neck or the nape). ATTY. TABUCANON: Q You said you went to the room, what else happened?

Epilogue Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor simple to analyze and recognize vis--vis the given set of facts in the present case. The Court agonized on how to apply the theory as a modern-day reality. It took great effort beyond the normal manner in which decisions are made -- on the basis of existing law and jurisprudence applicable to the proven facts. To give a just and proper resolution of the case, it endeavored to take a good look at studies conducted here and abroad in order to understand the intricacies of the syndrome and the distinct personality of the chronically abused person. Certainly, the Court has learned much. And definitely, the solicitor general and appellant's counsel, Atty. Katrina Legarda, have helped it in such learning process. While our hearts empathize with recurrently battered persons, we can only work within the limits of law, jurisprudence and given facts. We cannot make or invent them. Neither can we amend the Revised Penal Code. Only Congress, in its wisdom, may do so. The Court, however, is not discounting the possibility of self-defense arising from the battered woman syndrome. We now sum up our main points. First, each of the phases of the cycle of violence must be proven to have characterized at least two battering episodes between the appellant and her intimate partner. Second, the final acute battering episode preceding the killing of the batterer must have produced in the battered person's mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life. Third, at the time of the killing, the batterer must have posed probable -- not necessarily immediate and actual -- grave harm to the accused, based on the history of violence perpetrated by the former against the latter. Taken altogether, these circumstances could satisfy the requisites of selfdefense. Under the existing facts of the present case, however, not all of these elements were duly established. WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However, there being two (2) mitigating circumstances and no aggravating circumstance attending her commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum. Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon her, the director of the Bureau of Corrections may immediately RELEASE her from custody upon due determination that she is eligible for parole, unless she is being held for some other lawful cause. Costs de oficio. SO ORDERED. Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur. Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join Justice Santiago in her dissent. Vitug and Quisumbing JJ., in the result. Ynares-Santiago J., see dissenting opinion.

DISSENTING OPINION YNARES-SANTIAGO, J.: In convicting Marivic Genosa of the crime of parricide, our esteemed colleague Mr. Justice Artemio V. Panganiban found that there was no factual basis to conclude that Marivic was suffering from "Battered Woman Syndrome" (BWS) at the time she took the life of her husband. With due respect, I register my dissent. The novel theory of "Battered Woman Syndrome" is recognized in foreign jurisprudence as a form of self-defense. It operates upon the premise that a woman who has been cyclically abused and controlled over a period of time develops a fearful state of mind. Living in constant danger of harm or death, she knows that future beatings are almost certain to occur and will escalate over time. Her intimate knowledge of the violent nature of her batterer makes her alert to when a particular attack is forthcoming, and when it will seriously threaten her survival. Trapped in a cycle of violence and constant fear, it is not unlikely that she would succumb to her helplessness and fail to perceive possible solutions to the problem other than to injure or kill her batterer. She is seized by fear of an existing or impending lethal aggression and thus would have no opportunity beforehand to deliberate on her acts and to choose a less fatal means of eliminating her sufferings.1 As exhaustively discussed in the ponencia, the "Battered Woman Syndrome" has three phases, to wit: (1) the tension-building phase, where minor batterings in the form of verbal or slight physical abuse occurs. Here, the woman tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way; (2) the acute battering incident phase which is characterized by brutality, destructiveness and sometimes, death. The battered woman usually realizes that she cannot reason with him and that resistance would only exacerbate her condition; and (3) the tranquil period, where the couple experience a compound relief and the batterer may show a tender and nurturing behavior towards his partner. Contrary to the findings in the ponencia, the defense was able to establish the occurrence on more than one occasion of the "tension-building phase" of the cycle. The various testimonies of appellant's witnesses clearly reveal that she knew exactly when she would once again be subjected to acute battery. Her cousin, Ecel Arano, testified that she often asked the latter to sleep in her house as she was afraid every time her husband came home drunk. Clearly, whenever appellant requested for Arano's company, she was experiencing a tension-building phase. The barangay captain, Panfilo Tero, also testified that appellant sought his help two months before she killed her husband, again demonstrating that she was in the tension-building phase and was attempting to prevent another incident of acute battery. Appellant presented evidence to prove that the tensionbuilding phase would occur whenever her husband would go out looking for other women, would lose at cockfights or would come home drunk. She often tried to ignore her husband's attitude or, as testified to by some witnesses for the prosecution, even shouted back, fought off or even injured her husband during the tension-building phase, if only to prevent the onset of acute battery. Appellant was able to perfectly describe the tension-building phase of the cycle immediately prior to the death of her husband, i.e., when she knew or felt that she was going to be killed by the deceased. She could not possibly have testified with clarity as to prior tension-building phases in the cycle as she had never tried to kill her husband before this time.

It was shown by the testimonies of appellant and even witnesses for the prosecution that appellant would seek shelter in her mother's or her father's house after an acute battering incident, after which would begin the process of begging for forgiveness, promises of change in behavior and return to the conjugal home, only for the same cycle to begin all over again. To require appellant to prove the state of mind of the deceased, as seems to be required in the ponencia, would mean that no person would ever be able to prove self-defense in a battered woman case. Appellant could not possibly prove whether the deceased felt provoked into battering by any act or omission of appellant. She cannot possibly prove that she felt herself to be the sole support of the deceased's emotional stability and well-being. Nevertheless, appellant felt trapped and helpless in the relationship as, in the end, she resorted to killing her husband as no one could or did help her, whether out of fear or insensitivity, during the violent marriage she endured. The "acute battering incident stage" was well demonstrated by the severe beatings suffered by Marivic in the hands of the deceased as well as the threats to kill her using a bolo or a cutter.2 The physical abuses occurred at least 3 times a week in the 11 miserable years of their marriage,3 six incidents of which were documented by the 1990-1995 medical records of Marivic. They included, among others, hematoma, contusion, and pain on the breasts; multiple contusions and trauma on the different parts of her body even during her pregnancy in 1995.4The tranquil period underwent by Marivic was shown by the repeated "kiss and make-up" episodes of their relationship. On more than 5 occasions, Marivic ran to her parents' house after violent fights with the deceased only to forgive the latter every time he would fetch her and promise to change.5 All these recurring phases of cycle of violence, repentance and forgiveness developed a trauma in the mind of Marivic making her believe that a forthcoming attack from the deceased would cause her death. This state of mind of Marivic was revealed in her testimony given way back in 1998, before she was examined by experts on BWS. Unaware of the significance of her declarations, she candidly narrated how she felt immediately before she killed the deceased, thus ATTY. TABUCANON Q So you said that he dragged you towards the drawer? A Yes, sir. Q What is there in the drawer? A I was aware that it was a gun. xxx xxx xxx

his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the room, and on that very moment everything on my mind was pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit. xxx xxx xxx6

Q What else happened? A When I was in the room, I felt the same thing like what happened before I was admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure has raised. I was frightened I was about to die because of my blood pressure. xxx xxx xxx

A Considering all the physical sufferings that I've been through him, I took pity on myself and I felt I was about to die also because of my blood pressure and the baby, so I got the gun and shot him.7 It must be stressed that the defense of "Battered Woman Syndrome" was not raised by Marivic before the lower court but only here on automatic review. This makes the foregoing testimony more worthy of great weight and credence considering that the same could not have been cunningly given to suit or conform to the profile of a battered woman. Moreover, there was indeed basis for Marivic to fear death because of her medical history. Dr. Dino Caing testified that he treated Marivic for hypertension due to domestically related emotional stress on 23 separate occasions. The latest one was on November 6, 1995 when she suffered from severe hypertension and had a blood pressure of 180/120 on the 8th month of her pregnancy.8 Furthermore, Dr. Natividad A. Dayan, a clinical psychologist and an expert on BWS who examined Marivic, assessed the effects of the repeated violence on the latter as follows: A What I remember ... was it was more than ten years that she was suffering from emotional anguish. There were a lot of instance of abuses, ... emotional abuse...verbal abuse and... physical abuse. The husband had very meager income, she was the one who was practically the bread earner of the family. The husband was involved in a lot of vices, going out with barkadas, drinking, even womanizing, being involved in cockfighting and in going home very angry which... triggered a lot of physical abuse. She also had the experience of taunting from the husband for the reason that the husband even accused her of infidelity, the husband was saying that the child she was carrying was not his own. So she was very angry, she was at the same time very depressed because she .. .[felt] almost like living in purgatory or even in hell when it was happening day in and day out. xxx xxx xxx

Q What happened when you were brought to the drawer? A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key. [T]hen he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed

Q And what was it that triggered ... that tragedy in your opinion? A I think for several weeks, she was already having all those tensions, all those anxieties, they were not enough, that the husband was even going to cockfighting x x x A She was angry with him, he was angry with her and I think he dragged her and even spun her around. She tried to fight him so there was a lot of fight and when she was able to escape, she went to another room and she locked herself with the children. And when the husband was for a while very angry he calms down then and then (sic). But I remember before that the husband was looking for the gun and I think he was not able to open the cabinet because she had the key. So during that time, I remember, that she was very much afraid of him, so when the husband calmed down and he was asleep, all she was concerned was to end up her misery, to save her child which she was carrying and to save her two children. I believe that somehow she's not rational.9 xxx xxx xxx

Traditionally, in order that self-defense may be appreciated, the unlawful aggression or the attack must be imminent and actually in existence. This interpretation must, however, be re-evaluated visa-vis the recognized inherent characteristic of the psyche of a person afflicted with the "Battered Woman Syndrome." As previously discussed, women afflicted by this syndrome live in constant fear for their life and thus respond in self-defense. Once BWS and an impending danger based on the conduct of the deceased in previous battering episodes are established, actual occurrence of an assault is no longer a condition sine qua non before self defense may be upheld.Threatening behavior or communication can satisfy the required imminence of danger. As stated in the ponencia, to require the battered person to await an obvious deadly attack before she can defend her life would amount to sentencing her to murder by installment. In the case at bar, the cycle of violence perpetrated by the deceased, which culminated in the physical assaults and an attempt to shoot Marivic when she was 8 months pregnant, took the place of unlawful aggression, thus entitling her to a complete self defense even if there was no actual employment of violence by the deceased at the time of the killing. Marivic had every reason to believe that the deceased would kill her that night not only because the latter was verbally threatening to kill her while attempting to get a gun from the drawer, but more importantly because the deceased wounded her on the wrist with a bolo, and because of the deceased's previous conduct of threatening to cut her throat with a cutter which he kept in his wallet. Quoted hereunder are the relevant testimonies of Marivic A When I arrived home, he was already in his usual behavior. xxx xxx xxx

PROS. TRUYA Q Mrs. Witness, being an expert witness, giving more the facts and circumstances on this case that the books you studied in the expertise in line and in the 77 hour contact with appellant Mrs. Genosa, could you say that this is not ordinary self-defense but a survival on her part? A Yes, sir. Q To what she did to her husband (sic)? A Yes, sir this is not an ordinary self-defense, but this [is] a need to survive, a need to survive with her two sons and [the] child she's bringing. Q Had she not able to kill her husband, would she still be in the very short moment with the victim (sic)? A If she did not do that she believes that she will be the one who would be killed.10 There is no doubt therefore that Marivic was afflicted with the "Battered Woman Syndrome" and that it was an apprehension of death and the instinct to defend her and her unborn child's life that drove her to kill her husband. The ponente further refused to sustain the self-defense proffered by Marivic because there was allegedly no aggression or danger posed on her life by the victim at the time she attacked the latter. Again, I beg to disagree.

A He was drunk again, he was yelling in his usual unruly behavior. xxx xxx xxx

A He was nagging ... me at that time and I just ignore[d] him because I want to avoid trouble for fear that he will beat me again. Perhaps he was disappointed because I just ignore[d] hi[s] provocation and he switch off the light and I said to him, "why did you switch off the light when the children were there." At that time I was also attending to my children who were doing their assignments. He was angry with me for not answering his challenge, so he went to the kitchen and g[o]t a bolo and cut the antenna wire to stop me from watching television. xxx xxx xxx

A He switch[ed] off the light and the children were shouting because they were scared and he was already holding a bolo. Q How do you describe this bolo? A 1 1/2 feet.

xxx

xxx

xxx

A Whirled around. Q Just like spinning. xxx xxx xxx

Q You said the children were scared, what else happened as Ben was carrying that bolo? A He was about to attack me so I ran to the room.

Q Where did he whirl you, was it inside the bedroom or outside? Q What do you mean that he was about to attack you? A In our bedroom. A When I attempted] to run he held my hands and he whirled me and I fell [on] the bedside.11 xxx xxx xxx Q Then after the whirling what happened? A He kicked my ass and then I screamed.12 xxx To the witness xxx xxx xxx xxx xxx

COURT

Q You screamed for help and he left, do you know where he was going? A Outside perhaps to drink more. Q When he left what did you do...? A I packed all his clothes. Q What was your reason in packing his clothes? A I wanted him to leave us.13 A I was frightened that my husband would hurt me, so I packed all his things then on the following day I will leave, I was afraid and I want to make sure I would deliver my baby safely.14 xxx xxx xxx

Q The bolo that you said which Ben was holding at that time, [was] it a bolo or a knife? A Bolo. Q Were you wounded or were there inflictions on your body when he was holding and trying to frighten you [with] that bolo? A No, only here. COURT INTERPRETER (The witness pointed to her wrist). COURT To the witness Q You were demonstrating a motion, whirling, did your husband really whirl you? A Yes, your Honor. Q How did he whirl you?

A After a couple of hours, he went back again and got angry with me for packing his clothes, then he dragged me again outside of the bedroom holding my neck. ATTY. TABUCANON Q You said that when Ben came back to your house, he dragged you? How did he drag... you? COURT INTERPRETER

(The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck) A And he dragged me towards the door backwards.

Q How do you describe the blade, is it sharp both edges? A Yes, because he once used it to me. Q How did he do it?

ATTY. TABUCANON A He wanted to cut my throat. Q Where did he bring you? Q With the same blade? A Outside the bedroom and he wanted to get something and then he kept shouting at me that "you might as well be killed so there will be nobody to nag me. Q So you said that he dragged you towards the drawer? A Yes, sir. Q What is there in the drawer? A Yes, sir. A I was aware that it was a gun. Q And the whirling happened in the first incident? xxx xxx xxx A Yes, sir. Q What happened when you were brought to the drawer? Q And the dragging with arms flexed in her neck and on that blade A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key. [T]hen he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the room, and on that very moment everything on my mind was pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit. xxx xxx xxx To the witness Q You said that he dropped the blade, for the record will you please Q Why, what is that blade about? describe this blade about 3 inches long, how does it look like? A A cutter about 3 inches long. A Three (3) inches long and 1/2 inch wide. Q Who used that? Q Is it a flexible blade? A Ben. A It's a cutter. happened on the second incident (sic)? A Ye, sir. xxx xxx xxx A Yes sir, that was the object used when he intimidate me.15 RE-DIRECT BY ATTY. TABUCANON Q In other words, there were two (2) incidents, the first incident and then he left and then two (2) hours after he came back?

COURT

Q He used that on you? A He scared me on that (sic). xxx xxx xxx

Verily, the requirement of threatening behavioral pattern of the batterer in previous violent episodes was sufficiently satisfied in the present case. This, juxtaposed to Marivic's affliction with BWS justified the killing of the deceased. The danger posed or created in her mind by the latter's threats using bladed weapons, bred a state of fear, where under the circumstances, the natural response of the battered woman would be to defend herself even at the cost of taking the life of the batterer. The ponencia's acknowledgement of "Battered Woman Syndrome" as a valid form of self-defense, is a noble recognition of the plight of, and a triumph for battered women who are trapped in a culture of silence, shame, and fear. This would however be an empty victory if we deliberately close our eyes to the antecedents of this case. The facts are simple. Marivic was suffering from the "Battered Woman Syndrome" and was defending herself when she killed her husband. Her acquittal of the charge of parricide is therefore in order. IN VIEW WHEREOF, I vote to ACQUIT Marivic Genosa.

Q But he did not hit you with that? A Yes, because I managed to run every time he scared (sic).16 There are many things which cannot be proved by direct evidence. One of this is state of mind. In the case at bar, there is more than sufficient physical evidence presented by the appellant from which her mental state can be inferred. The prosecution did not object to the presentation of these physical and testimonial pieces of evidence, namely, the medical records of 23 instances of domestic violence-related injuries and the testimonies of neighbors, cousins and even the barangay captain. Indeed, no person would endure 23 reported instances of beatings if she were planning to kill her spouse in the first place. The majority need not worry that women around the country will mastermind the killings of their husbands and then use this Decision to bolster their attempts to employ the BWS defense. Moreover, as found in the ponencia, appellant should be allowed the mitigating circumstance of passion and obfuscation. This, at the very least, supports a finding that the acts of violence and battery committed by the deceased were illegal and unlawful and were committed immediately before appellant could recover her natural equanimity. But what is the natural equanimity of a battered woman? Appellant was not a normal married woman. She can never be in a state of natural equanimity as she was in a constant state of alertness and hypersensitivity to the next phase of acute battery. The esteemed ponente also correctly found that the appellant acted with diminished will-power. However, he failed to go further. In the case of People v. Javier,17 it was held: Since accused-appellant has already admitted to the killing, it is incumbent upon him to prove the claimed mitigating circumstance of illness. In this case, however, aside from the testimony of the accused that his mind went blank when he killed his wife due to loss of sleep, no medical finding was presented regarding his mental condition at the time of the killing. This Court can hardly rely on the bare allegations of accused-appellant, nor on mere presumptions and conjectures. No clear and convincing evidence was shown that accused-appellant was suffering an illness which diminished his exercise of will-power at the time of the killing.18 In the case at bar, appellant was allowed and did in fact present clear and convincing evidence that she was a battered woman for 13-14 years and that she suffered from the "Battered Woman Syndrome". Expert testimony was presented and admitted to this effect, such that theponente ably discussed the causes and effects of the syndrome. To ignore the testimony and the evidence thus presented is to make impossible the proof of mental state. Evidence as to the mental state need not be also "beyond reasonable doubt."