G.R. No. L-37374THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,vs.FELICIANO EMBALIDO, defendant-appellant.

Angel Soncuya for appellant.Attorney-General Jaranilla for appellee.

Abad Santos (Jose), J.:

The appellant in this case was charged with the crime of the murder. He admits having Felix Cabiguin, but claims that he surprised his wife and the deceased while they were engaged in criminal conversation. The lower court found him guilty of the crime of murder and, appreciating in his favor of mitigating circumstances of illiteracy and voluntary surrender to the authorities, sentenced him to seventeen years, four months and one day of the cadena temporal, with the accessory penalties provided by law, to indemnify the heirs of the deceased in the sum of P500, and to pay the costs. From this judgment the accused appealed to this court and now contends that he should have been sentenced in accordance with article 247 of the Revised Penal Code, which reads as follows:

Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro.

We have carefully considered the evidence presented in this case, and we are of the opinion that the lower court erred in finding the appellant guilty of the crime of murder. The mere fact that the deceased had wounds in the back, does not necessarily show that the appellant attacked him from behind, giving the deceased no chance to defend himself, so as to bring the offense within the definition of the crime of murder. The case is one of homicide.

In cases of homicide, the prosecution is required to proved two facts, namely: (1) That death of the deceased; and (2) that he was killed by the accused. Once this facts are established beyond a reasonable doubt, conviction is warranted. Matters of defense, mitigation, excuse, or justification must appear by a preponderance of evidence. An examination of the evidence of record does not justify the conclusion that the appellant surprised his wife and the deceased while they were engaged in criminal conversation. The case, therefore, does not come within the purview of article 247 of the Revised Penal Code.

The appellant is adjudged guilty of the crime of homicide, and appreciating in his favor the mitigating circumstances of illiteracy and of voluntary surrender to the authorities, he is hereby sentenced to six years and one day of prision mayor, with the understanding that the service of this sentence shall begin after the appellant will have served the sentence imposed upon him for the crime of parricide in case G.R. No. 37379, People vs. Embalido.1 Appellant is also sentenced to indemnify the heirs of the deceased in the sum of P500, and to pay the costs.

Modified as above indicated, the judgment appealed from is affirmed. So ordered.

People vs Berang

Facts:

The appellant was charged in three different cases with parricide. He was acquitted in one of them and found guilty in the other two.

In the morning of November 4, 1938, Beling, the wife of the accused, and his children, four-year-old X and six-month-old Y, were boloed to death in the appellant's house. The first Government agents who arrived at the house were Constabulary Sergeant Ignacio Bersamina and the health inspector of Tugboc, Agustin Candia. The accused told the sergeant that he killed his wife and children because he was made with rage. In the afternoon of the same day the accused, who showed some wounds, was taken to the Davao Public Hospital, and on the following day, November 5th, answering the questions of the fiscal in the presence of Lieutenant Villares, deputy clerk of court Mr. Frias, and Sergeant Bersamina, he admitted killed his wife and children and having wounded himself on the neck and head.

Issue:

Whether accused-appellant is deemed guilty of both parricide and homicide? 

Held:

Yes. Finding the accused guilty beyond reasonable doubt of killing his daughter X and wife Beling, with whom he lived maritally, in the absence of clear evidence of the marriage, the court considered the crime committed by Berang in killing Mora Beling as homicide only, and acquitted the accused in one of the three cases, sentencing him in the other, for the crime of homicide, to an indeterminate penalty ranging from six (6) months and one (1) day of prision mayor to twelve (12) years and (1) day of reclusion temporal, to indemnify the heirs of Beling in the amount of P2,000, and in the third case, for the crime of parricide for the death of his daughter X, it sentenced the accused to reclusion perpetua, and to pay the costs in both cases, without pronouncement as to the indemnity for the death of said X, considering that the accused, as the father, is the presumptive heir of the deceased.In the present appeal the accused contends that his guilt has not been established beyond a reasonable doubt; that the testimony of Bayna, his mother, is contradictory; that he could not read well his declaration before the Fiscal when it was read to him, and that he had not spoken to Sergeant Bersamina. He testified that on November 4, 1938, while he was sleeping, he was wounded by Beling, and when he woke up he saw his daughter X dead by his side, and upon noting that Beling was holding a bolo, he grabbed it from her and gave her bolo blows, because according to him he took pity on his children. Wherefore, the court affirms the appealed judgment, with the costs to the appellant. So ordered.

G.R. No. L-17773PEOPLE OF THE PHILIPPINES, plaintiff and appellee,vs.EMETERIO ORZAME, ET AL., defendants. EMETERIO ORZAME, defendant and appellant.

Francisco Mat. Riodigue for defendant and appellant.Assistant Solicitor General E. Umali and Solicitor E. M. Reyes for plaintiff and appellee.

, J.:

Emeterio Orzame, Dominador Magno and Arturo Gallarde were charged with murder before the Court of First Instance of Nueva Ecija, for the death of Juan Dulay. On motion of the Provincial Fiscal, Dominador Magno was discharged from the information and used as state witness. Trial proceeded against Arturo Gallarde and Emeterio Orzame, but after the prosecution rested its case due to insufficiency of evidence, Arturo Gallarde was acquitted.

Emeterio Orzame, found guilty beyond reasonable doubt of the crime of murder qualified by evident premeditation together with the aggravating circumstances of treachery and unnecessary cruelty or outraging or scoffing the person of the deceased, was sentenced to death, to indemnify the family of Juan Dulay in the amount of P6,000.00, and to pay one-third of the costs. Hence this appeal.

The facts are shown by the evidence are as follows: In the evening of February 17, 1958, Dominador Magno, a barriomate of the accused Emeterio Orzame, was called by Arturo Gallarde, his nephew, and son-in-law of Orzame, to the house of the latter, where together they hatched up the plan of killing the deceased Juan Dulay who was then insured for P3,000.00, with Orzame as the sole beneficiary, with the purpose of sharing the proceeds thereof among themselves. After setting all the wicked plan, they agreed to meet again on February 23, 1958, on the occasion of the town fiesta at a bowling place at Guimba, Nueva Ecija. On the agreed date, at about 9:00 o'clock in the evening, Magno and Gallarde went to the bowling place where they met Orzame who was already with the unsuspecting victim, the deceased Juan Dulay. From there, they proceeded to the outskirts of Guimba. On their way, Orzame picked up a bag (bay-ong) from the nearby field and when asked what the content was, he deliberately lied by saying that it contained bread. After walking for some time, they hit upon a railroad track at barrio Balingog, Guimba, Nueva Ecija, where they sat supposedly to get some rest. Thereupon, Orzame, taking advantage of the situation, pulled out a Thompson sub-machine gun from the bag and with its handle he immediately began hitting Juan Dulay several times on the right ear, face and back of the head while the said Juan Dulay was still sitting down, causing his instant death. Upon instruction of Orzame, the body of the deceased was carried to barrio Calibungan Victoria, Tarlac, where, although already dead, it was still subjected to further beatings with the Thompson sub-machine gun causing the brain to scatter, and was also stabbed on the face with a knife several times by Orzame. Then the deceased was lain across the railroad track to simulate a train accident as the cause of death. The following day, February 24, 1958, the body of the deceased Juan Dulay was found lying near the railroad tracks and among those who saw it was Jeremias Damo who identified the deceased as Juan Dulay.

The important defense of the accused is alibi. According to him he fell sick and was kept in a bed a week before February 23, 1958. On the said date, his son Lorenzo went to the poblacion of Guimba to call for a physician, Dr. Felipe Batangan, the municipal health officer. But due to the town fiesta, Dr. Batangan was unable to go so Lorenzo went to Dr. Benjamin Castañeda who consented to treat Orzame.

Dr. Castañeda, in corroborating the alibi of Orzame, alleged that he arrived in Orzame's house at 4:00 o'clock p.m. on February 23, 1958; that after examining Orzame he diagnosed the illness as lobar pneumonia with high fever, headache, and in a state of delirium; that he gave some antibiotics, plus supportive medicines as caffein, sodium benzoate to support the heart, and other drugs.

Orzame alleged further that Juan Dulay lived with his family during the Japanese occupation and was like a brother to him and, therefore, cannot kill him and that Dominador Magno testified against him because they quarreled and almost boloed each other oyAB4S6yUq.

The version of the appellant was doubted by the lower court on the following reasons:

(1) According to Dr. Castañeda when he was called to treat Orzame on February 23, 1958 the sickness of Orzame was lobar pneumonia with high fever, headache. shivering or trembling, and the patient was in a state of delirium and that, in his opinion, his said patient would be cured in two or three weeks. However, the next time he visited Orzame on February 25, 1958, two days after the first visit of said Castañeda, his patient was already cured, although weak and that was the last time he visited his patient. The lower court, in doubting this defense, said that it is easy for anybody to pretend to be sick and that headache cannot be seen or felt except by one who claims to have it.

(2) It was proven that Orzame was the one who paid the premiums of the life insurance of Juan Dulay up to May 15, 1958. And there is no doubt that the motive of the accused in killing Juan Dulay was to collect the P3,000.00 value of the victim's insurance policy.

(3) The alleged quarrel between Orzame and Magno was not sufficient or strong enough for Magno to impute falsely a very grave crime against Orzame. Besides, nothing happened in the alleged quarrel between them.

(4) The lower court considered the fact that the Thompson sub-machine gun, Exhibit 1, used by Emeterio Orzame in killing Juan Dulay on the night of February 23, 1958 was confiscated from him, for which reason he was charged and convicted with illegal possession of firearm.

As a rule, this Court desists from disturbing the conclusion of the trial court concerning the credibility of witnesses, for the latter is in a better position to appreciate the same, having seen and heard the witnesses themselves and observed their behavior and manner of testifying (People v. Lumayag, L-19142, March 31, 1965; People v. Dayday, et al., L-20806-7, August 14, 1965). In this particular case, the lower court doubted seriously the testimony of accused Orzame because when the said accused was on the witness stand he was restless and somewhat trembling, to which the said court called his attention twice.

Alibi, moreover, is generally a weak defense since it is easy to concoct. For this reason, the courts view it with caution and accept it only when proved by positive, clear and satisfactory evidence (People v. Pasiona, L- 18295, February 28, 1966; People v. Bautista, L-17772, Oct. 31, 1962; People vs. Dayday, et al., supra). Indeed, the positive identification of Orzame as perpetrator of the crime dwindles the defense of alibi (People vs. Argana, L-19448, February 28, 1964).

Appellant contends that the testimony of Dominador Magno is uncorroborated and comes from a polluted source, the witness being a former co-accused who was discharged from the complaint to become a state witness. But as the Solicitor General observes in his brief "that although Magno was discharged from the

information and used as a state witness, said circumstances should not be considered against his credibility. This is so because his testimony at the trial incriminating the herein appellant was but a reiteration of his affidavit and his testimony during the preliminary investigation both of which were subscribed by him long prior to his discharged (People v. Riparip, L-2408, May 31, 1950). Besides, "an uncorroborated testimony of a witness is sufficient to convict a co-accused, if and when the court gives it full faith. In the determination of the values and credibility of evidence, witnesses are to be weighed and not numbered (People v. Marasigan, L-2235, January 31, 1950). The testimony of only one witness, if credible and positive ... if it satisfies the court beyond reasonable doubt, is sufficient to convict" (People v. Argana, supra). The post mortem examinations on the body of the victim made on February 24, 1959, at 12:30 p.m., to wit:

x x x x x x x x x

4. Plenty of clotted blood in front, neck and back of his polo shirt and few spotted blood in front of his trousers corresponding to the thighs w62yjFzu.

5. The skull of his head at the vertex was badly battered and opened crosswise and most of the brain substance was missing and the remaining brain substance appeared like mash potatoes with small amount of blood mixed with it.

6. Punctured wound of the middle of his chin in front, punctured wound just below the left nostril, punctured wound 1 cm. lateral to the left bridge of his nose, punctured wound between the eyebrows and clotted blood at the surface of each wound.

7. The face was greatly deformed and swollen with clotted blood all around, with depression of the lower forehead the bridge of his nose and the upper jaw at the front including the skull sockets of the eyes.

8. No findings of external violence at the other parts of his body LMAfO.

9. The cadaver was already at the state of rigor mortis so that he might have been killed 10 hours before autopsy and probably the assailants only dumped him in one of the rails of the railroad to disguise that he had been run over by the train Km0CvOW8L.

AUTOPSY FINDINGS:

1. Head and Neck

(a) The skull of his head at the vertex was badly battered and opened crosswise as a result of the bumper of the train striking it, part of the skull missing so that most of the brain substance appeared like mash potatoes with small amount of blood mixed with it.

(b) The skull of the lower portion of the forehead was fractured crosswise including the skull sockets of both eyes injuring both optic nerves including the upper jaw in front was fractured causing the removal of the first two incisors teeth.

x x x x x x x x x

Impression of the case is that the cause of death was due to severe traumatic shock as a result of the blows inflicted upon him causing the fracture of the skull of the lower portion of the forehead at the middle

including the skull sockets of both eyes injuring both optic nerves, fracture of the bridge of his nose, crosswise, fracture of the upper jaw in front resulting in the removal of the first two incisors teeth.

confirm Magno's testimony that the victim was struck with the handle of the sub-machine gun and stabbed with a knife by the accused several times.

Premises considered, the decision appealed from being in conformity with the law and the evidence, the same is hereby affirmed in all respects.

G.R. No. L-52798 February 19, 1986

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MANUEL Y. TAYO, accused whose death sentence is under review.

 

AQUINO, C.J.: chanrobles virtual law library

This is an automatic review of the decision of the Circuit Criminal Court at Cebu City, convicting Manuel Y. Tayo of the complex crime of murder and multiple frustrated murder, sentencing him to death and ordering him to pay P32,000 as indemnity to the heirs of Jimmy (Jessie) Pongos, P10,000 as compensatory damages to Mr. and Mrs. Manuel Toledo and P 700 as compensatory damages to Mauro Ahid (Ahig).chanroblesvirtualawlibrary chanrobles virtual law library

The prosecution's evidence shows that between ten and eleven o'clock in the evening of July 31, 1978 Mauro Ahid, the watchman, saw Manuel Y. Tayo, 23, a former army draftee, throwing a hand grenade into the second floor of the Super Chicks Nightclub located at the South Superhighway, Cebu City. The owner, Manuel Toledo, his wife Rose Toledo, who was also the cashier, and his employees were wounded. Jimmy Pongos, the organist, was mortally wounded. He died because of his shrapnel wounds (Exh. A).chanroblesvirtualawlibrary chanrobles virtual law library

After throwing the grenade, Tayo left and, on reaching the landing, fired his handgun four times in the direction of the compound of the Cebu Autobus Company, as if to scare pursuers, then fled to V. Rama Avenue.chanroblesvirtualawlibrary chanrobles virtual law library

Manuel Toledo underwent surgery. He was confined in the hospital for nine days. His hospitalization expenses amounted to P10,000 to P12,000. Ahid was hospitalized for seven days. His feet were injured by shrapnel.chanroblesvirtualawlibrary chanrobles virtual law library

Tayo, who used to be a janitor at the Visayan Electric Company, testified that in the evening in question he was at his home in Sitio Tisa, Labangon, Cebu City. He had fever and stomachache. He took some medicines. At eleven-thirty he went by jeepney to the house of his friend, Rollie Cuizon, on Calamba (now V. Rama) Street, Labangon, Cebu City to attend a baptismal party. He arrived at Cuizon's place at midnight. He denied having thrown the grenade.chanroblesvirtualawlibrary chanrobles virtual law library

He admitted that when he was an army trainee in 1975 he was investigated for throwing a grenade at the dance in Yati, Liloan, Cebu (15 tsn Dec. 28, 1979). The trial court did not believe Tayo's alibi.chanroblesvirtualawlibrary chanrobles virtual law library

His counsel de oficio contends that the trial court erred in not finding that Tayo's Identity was not satisfactorily established, that his guilt was not proven beyond reasonable doubt and that the award of damages was not justified.chanroblesvirtualawlibrary chanrobles virtual law library

We hold that Tayo's guilt was proven to a moral certainty. Two days after the throwing of the hand grenade, Tayo was arrested in the house of the victim, Pongos, allegedly his friend. He was among those keeping vigil over the remains of Pongos. He was Identified by Ahid and by Romeo Fernandez, the floor manager of the nightclub. Pongos' residence was located at V. Rama Avenue (p. 5, Record).chanroblesvirtualawlibrary chanrobles virtual law library

The accused was charged with having committed murder and multiple frustrated murder by throwing a hand grenade which exploded and hit the victims. It was alleged that he acted with treachery and premeditation. The trial court assumed that the qualifying circumstance was treachery.chanroblesvirtualawlibrary chanrobles virtual law library

The correct view is that this is a case of killing by explosion. (People vs. Guillen, 85 Phil. 307; People vs. Ganego and Soriano, 82 Phil. 335; People vs. Agcaoili, 86 Phil. 549; People vs. Francisco, 94 Phil. 975.) chanrobles virtual law library

The single act of throwing the grenade resulted in murder as to Pongos, frustrated murder as to Toledo and attempted murder as to Ahid. As the crime is complex, the death penalty was properly imposed (Arts. 48 and 248, Revised Penal Code).chanroblesvirtualawlibrary chanrobles virtual law library

However, for lack of the necessary ten votes, the next lower penalty, reclusion perpetual should be imposed.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the judgment of the trial court is affirmed with the modification that in lieu of the death penalty, reclusion perpetua is imposed on the accused. Costs de oficio.

G.R. No. L-15635THE UNITED STATES, plaintiff-appellee,vs.FULGENCIO TANDOC, ET AL., defendants. FULGENCIO TANDOC, JOSE CORPUS and BERNARDINO RUIZ, appellants.

On or about the 7th of January, 1917, Melecio de Vera, the man in charge of Victorino Navarro's land in the barrio of San Jose, municipality of Urdaneta, Pangasinan, was gathering tobacco on said land assisted by his laborers, Lorenzo de Vera, Luis Moyalde, Celestino Para-an and Fernando Ferrer. While engaged in this work, they heard the sound of a horn, which was repeated a few moments afterwards, and then towards the eastern side of the land they discerned many men, more than thirteen in number, coming towards them, and when these persons came the latter surrounded and attacked them. During the fight Louis Moyalde and Fernando Ferrer were wounded; and when the aggressors saw them fallen on the ground covered with blood, Jose Corpus, one of the aggressors, sounded the horn and his companions withdrew.

The land where the incident took place was claimed as his property by Jose Bengzon, who in October, 1916, obtained from the Court of First Instance of Pangasinan a preliminary injunction against Melecio de Vera enjoining the latter, his agents and other persons working under him from disturbing Jose Bengzon or his tenants in the harvest of the palay growing on said land. Later, however, Melecio de Vera, having

given an obligation with sureties to answer for the damages which Jose Bengzon might suffer, that injunction was dissolved. But, although this injunction was dissolved and Jose Bengzon and his tenants were notified thereof, the latter did not allow Melecio de Vera and his workmen to enter upon said land. Melecio de Vera accused Jose Bengzon and his tenants of contempt, and the court issued an order requiring Jose Bengzon, Fulgencio Tandoc, Jose Corpus and Alberto Campanero to appear in court on April 17, 1917, and show cause why they should not be punished for contempt. Things stood thus when, as has already been said, on the 7th of January, 1917, Melecio de Vera and his workmen were attacked on the same land. The aggressors were Jose Bengzon's men, among whom were identified the fourteen accused in this cause, led by Fulgencio Tandoc. Luis de Vera, Jose Corpus and Bernardino Ruiz were identified as among those who wounded Luis Moyalde. Fulgencio Tandoc struck Luis Moyalde's head with a bamboo stick, the latter falling to the ground; and while in this position, Luis de Vera, Jose Corpus and Bernardino Ruiz also gave him blows with clubs and canes. On the evening of the same day Luis Moyalde died as a result of the blows received by him, the most serious of which was the one dealt on his head by Fulgencio Tandoc. The information filed in this cause has to do only with the death of Luis Moyalde.

The fourteen men above-mentioned were charged in the information. The accused Domingo Galvez having died before the trial, the prosecution was dismissed as to him. After hearing the evidence, the court found Fulgencio Tandoc, Luis de Vera and Bernardino Ruiz guilty and sentenced them to be imprisoned for four years, to suffer the accessory penalties provided for by law, to indemnify, jointly and severally, Luis Moyalde's heirs in the sum of P1,000, and to pay each one-fourteenth part of the costs. The rest of the accused were acquitted, with the remaining part of the costs de officio. From this judgment Fulgencio Tandoc, Luis de Vera, Jose Corpus and Bernardino Ruiz appealed.

The lower court classified the facts proven in this case as constituting the crime of homicide caused in a tumultuous affray. We are of the opinion that this classification is erroneous. A tumultuous affray takes place when a quarrel occurs between several persons and they engage in a confused and tumultuous affray, in the course of which some person is killed or wounded and the author thereof cannot be ascertained. (Arts. 405 and 420 of the Penal Code.) Such were not the facts in this case. The quarrel here was between two well-known groups of men. The party formed by the deceased and his companions was the one attacked and that formed by the appellants was the aggressor. There was no confusion in the aggression as well as in the defense. The appellants and their companions were united in their common purpose to attack, as is shown by the circumstance that they have rallied together under the signal of two sounds of the horn, in order to commence said aggression and they withdrew from the field also under the signal of one sound of the horn. As is apparent, united they also put into execution this common purpose by cooperating with each other in inflicting upon the deceased the blows which caused his death. This unity of purpose determines the aggressors' common responsibility for the consequences of the aggression, for which reason the act cannot be considered as a tumultuous affray for the responsible authors are known. The act, therefore, constitutes the crime of homicide.

In view of the numerical superiority of the appellants and their companions in relation to the number of the party of deceased and his companions and the fact that former were all armed and three of them carried deadly weapons, the aggression must be considered as attended with the aggravating circumstance of abuse of superior strength, which raises the penalty to be imposed upon the accused to the maximum degree.

The judgment appealed from is modified, and the appellants are sentenced, in accordance with article 404 of the Penal Code, to seventeen years, four months and one day of reclusion temporal. Said judgment is in all other respects affirmed. So ordered S9QRv2W8E.

Case of People of the R.P. vs. GenosaG.R.No. 135981 15January2004

FACTS OF THE CASE:

That Marivic Genosa, the Appellant on the 15November1995, attacked and wounded his husband, which ultimately led to his death. According to the appellant she did not provoke her husband when she got home that night it was her husband who began the provocation. The Appellant said she was frightened that her husband would hurt her and she wanted to make sure she would deliver her baby safely. In fact, The Appelant 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.

The Appellant 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. The Apellant said that the reason why Ben was violent and abusive towards her that night was because 'he was crazy about his recent girlfriend, Lulu Rubillos.

The Appellant after being interviewed by specialists, has been shown to be suffering from Battered Woman Syndrome.The appellant with a plea of self defense admitted the killing of her husband, she was then found guilty of Parricide, with the aggravating circumstance of treachery, for the husband was attacked while asleep.

ISSUES OF THE CASE:

Can Marivic Genosa be granted the Justifying circumstance of Self-defense, and can she be held liable for the aggravating circumstance of treachery?

No, Since self- defense since the existence of Battered woman syndrome, which the appellant has been shown to be suffering in the 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.In the present case, however, according to the testimony of the appellant there was a sufficient time interval between the unlawful aggression of the husband 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. 

Without continuous aggression there can be no self-defense. And absence of aggression does not warrant complete or incomplete self-defense. 

No, 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.

The circumstances must be shown as indubitably as the killing itself; they cannot be deduced from mere inferences, or conjectures, which have no place in the appreciation of evidence. 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. 

In the present case, however it was not conclusively shown, that the 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 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, the doubt should be resolved in her favor.

HELD:

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.

ADDENDUM:

When can BWS (Battered Woman Syndrome) as self defense be appreciated?

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.' 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. Considering such circumstances and the existence of BWS, self-defense may be appreciated.

G.R. No. L-12141PEOPLE OF THE PHILIPPINES, plaintiff-appellant,vs.MIGUEL LASALA, defendant-appellee.

Office of the Solicitor General for plaintiff-appellant.Senen C. Peñaranda for defendant-appellee.

, J.:

Miguel Lasala was accused of the crime of serious slander by deed with less serious physical injuries and damages committed, according to the amended information dated December 10, 1956, as follows:

That on or about the 11th day of September 1956, in the municipality and province of Surigao, Philippines, and within the jurisdiction of this Honorable Court the said accused with the deliberate intent to expose to public ridicule, cast dishonor and public contempt on one Wenceslao Andanar incumbent municipal mayor of Sapao, Surigao, did then and there willfully, unlawfully and feloniously in a public place use personal violence by attacking, assaulting and using fistic blows on said Wenceslao Andanar thereby exposing the latter to public ridicule, contempt and dishonor and inflicting injuries in the different

parts of his body which required 14 days medical treatment and incapacitated him from the performance of his customary labors for 12 days, thereby exposing the said Wenceslao Andanar to public contempt, dishonor and special humiliation, purposely committed in the cockpit where there were many people present.

That on the same date, place and on the same occasion, the herein accused did then and there willfully, unlawfully and feloniously attack and assault the said Wenceslao Andanar with fistic blows, causing bruises and contusions in the different parts of his body which required 14 days medical treatment and incapacitated him from the performance of his customary labors for 12 days.

That by reason of all these acts alleged and described in the preceding paragraphs the offended party suffered mental anguish, wounded feelings, besmirched reputation, physical and mental torture and social humiliation causing him great damage and prejudice in the total sum of P30,000 as actual exemplary, and moral damages.

Before his arraignment, the accused filed a motion to quash on the ground that the act he has committed, if any, is not the complex crime of serious slander by deed defined in Article 359 of the Revised Penal Code and of less serious physical injuries but the single offense defined in paragraph 2 of Article 265 for the reason that said act has happened in the same place, on the same occasion, and had been impelled by the same intent. So he prayed that the information be quashed or amended by eliminating the charge of serious slander by deed. Notwithstanding the opposition interposed thereto by the prosecution, the trial court sustained the motion granting the fiscal 5 days within which to amend the information charging therein the proper offense in line with its suggestion. His motion for reconsideration having been denied, the prosecution instituted the present appeal.

The grounds on which the lower court predicated its order requiring the prosecution to amend the information by setting forth therein only the single offense of less serious physical injuries as prescribed in paragraph 2 of Article 265 of the Revised Penal Code, are as follows: .

The accused in this case filed a motion to quash the information, dated February 8, 1957, on the ground that two crimes have been charged in the information which constitute, according to the accused, only one single crime, and that the offense allegedly committed by said accused is the one defined and penalized under the second paragraph of Article 265, of the Revised Penal Code. The prosecution objected to said motion contending that the crime committed is a complex crime of slander by deed with less serious physical injuries defined and penalized under Art. 48 of the Revised Penal Code.

The Court, after considering the matter and hearing the arguments both sides, holds and declares that this is the crime specifically defined and penalized under the second paragraph of Art. 265 of the Revised Penal Code. The Court is of the opinion that the crime committed is less serious physical injuries with the manifest intent to insult and offend the complaining witness and the same acts cannot constitute the complex crime of slander by deed with less serious physical injuries because such complex crime only exists in cases where the Code has no specific provision penalizing the same with definite specific penalty." .

Article 265, paragraph 2, of the Revised Penal Code provides:.

Whenever less serious physical injuries shall have been inflicted with the manifest intent to insult or offend the injured person, or under circumstances adding ignominy to the offense, in addition to the penalty of arresto mayor, a fine not exceeding 500 pesos shall be imposed kkUVbD.

An analysis of the provisions of the article above-quoted reveals that whenever an act has been committed which inflicts upon a person less serious physical injuries with the manifest intent to insult or offend him or under circumstances adding to the offense, the offender should be prosecuted under that article and, if convicted, should be sentenced to the penalty therein prescribed. This specific provision should be considered as an exception to the rule contained in Article 48 of the Revised Penal Code relative to complex crimes. Of course, we cannot deny that Article 359 considers as slander by deed any act "which shall cast dishonor, discredit, or contempt upon another person", and if said act results in the infliction of physical injuries it may also be covered by any of the articles compromised in Chapter Two, Title Eight, of the Revised Penal Code, relative to physical injuries, but if such eventuality happens the act cannot come under Article 48 of the Revised Penal Code which considers as complex a single act that constitutes two or more grave or less grave felonies for the simple reason that in this particular case that act is specifically covered by paragraph 2 of Article 265 already abovementioned. In this respect, we agree with the following comment of the lower court: "The Court is of the opinion that the crime committed is less serious physical injuries with the manifest intent to insult and offend the complaining witness and the same acts cannot constitute the complex crime of slander by deed with less serious physical injuries, because such complex crime only exists in cases where the Code has no specific provision penalizing the same with specific penalty." .

The acts alleged in the information as constituting the crime of slander by deed with the infliction of physical injuries on the body of the offended party fit well into Article 265, paragraph 2, of the Revised Penal Code, for it is there alleged that the assault upon said offended party was committed in the cockpit where at the time there were many people present. In other words, it may be said that the act was committed with the manifest intent to insult or offend the offended party, or under circumstances adding ignominy to the offense, it appearing that said offended party was then the incumbent municipal mayor of the place. The lower court, therefore, was justified in ordering the amendment of the information..

WHEREFORE, the order appealed from is affirmed, without pronouncement as to costs.

G.R. No. L-13943PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.MARCELIANO ARRANCHADO, ET AL., defendants-appellants.

REYES, J.B.L., J.:

, J.:

Appeal from the judgment of the Court of First Instance of Cebu in Criminal Case No. V-6076, finding accused-appellants Sergio Arranchado, Jose Tuico and Miguel Arriesgado, guilty of murder for the killing of Revilioso Ygot, and sentencing each and every one of them to reclusion perpetua and to indemnify the heirs of the deceased victim, jointly and severally, in the sum of P5,000.00, and to pay 3/4 of the costs.

On July 11, 1957, herein accuse-appellants and Marceliano Arranchado were charged with the crime of homicide before the Justice of the Peace of Daanbatayan, Cebu, in connection with the death of Revilioso Ygot. The accused having waived their right to a preliminary investigation, the case was remanded to the Court of First Instance. On August 30, 1957, the information was amended to one of murder, with an allegation that the commission of the crime was qualified by evident premeditation and treachery. Upon

arraignment, Marceliano Arranchado alone pleaded guilty to the offense hanged and was, accordingly, sentenced ahead of the others to from five (5) years, five (5) months and eleven (11) days of prision correcional to twelve (12) years, five (5) months and eleven (11) days of prision mayor; to indemnify the heirs of the victim in the sum of P5,000.00; and to pay of the costs. The court then ordered the case tried as to the remaining accused, appellants therein.

The evidence is clear to the effect that about 5:00 o'clock in the afternoon of July 10, 1957, Leon Buangjug and Revilioso Ygot were together in the latter's house located in barrio Talisay, Daanbantayan. At about 5;30 p.m., the two friends left the place and proceeded in the direction of barrio Suba, Daanbantayan. They parted ways after Buangjug reached home, and Revilioso proceeded to the house of one Bonifacia Pepito. Less than half an hour later and while Buangjug was about ready to eat his supper, he heard Revilioso shout, " Leon, I was beaten by Iyok, Jose and Miguel (referring to three appellants) and then I was stabbed by Marsing (Marceliano Arranchado)."

Thereupon, Buangjug hurriedly came down from his house and followed Revilioso, who was the running to get home. Revilioso, however, was only able to run the distance up to Pablo Pepito's place, where he fell; whereupon, Tiburcio Arranchado and Abdon Petalita carried him to the Ygots' residence. When his father, Sergio Ygot, inquired about what happened, Revilioso declared that he was beaten up by Jose, Iyok and Miguel and stabbed by Marsing, adding, "Father, I Think I will die."

Later, Revilioso was taken to the town proper (Daanbantayan) for medical treatment, where the municipal health officer, Dr. 37 3 Augusto M. Lucero, administered first-aid to stop the bleeding from the stab wound; but seeing that the patient was about to die, the doctor urged his folks to bring him to the city. Upon arrival there, however, Revilioso expired.

Doctor Lucero issued a medical certificate as follows:

This is to certify that Revilioso Ygot, of Barrio Talisay, Daanbantayan, Cebu, was treated by the undersigned at 8:00 p.m. July 10, 1957, for the following injuries:

1. Stab wound, about one inch in width and penetrating the whole thickness of the left dorsolateral thorasic wall at the level of the 9th rib. The wound was clean cut and with sharp edges and directed downwards and centrally into adjoining left lung tissues producing a condition of "sucking pneumothorax".

2. Contusions were also found over the following parts of the body:

a) Behind the right ear

b) Upper portion of the right back

c) Left scapular region

d) Part of the back immediately below the left scapular region

e) Left shoulder around the acromial region.

3. The victim on arrival was dying and bleeding profusely both from the wound and from the mouth.

4. Death was, therefore, caused by the severe blood loss.

The only eyewitness to the attack was Pablo Petaleta. He testified that while on his way home after fetching water from a well located at the boundary of barrios Suba and Talisay, Daanbatayan, he saw Sergio Arranchado, Miguel Arriesgado and Jose Tuico delivering blows to Revilioso with pieces of wood until the latter crumpled down on his knees. While Revilioso was still in that position, Marceliano Arranchado suddenly appeared, "I don't know where he came from", and stabbed the victim with a dagger zLqzEvDS.

The medical certificate issued by Dr. Lucero, indicating the nature and location of the wounds inflicted upon Revilioso, corroborates in significant details the statements of Pablo Petaleta on how the crime was perpetrated by the attackers.

In the face of the deceased victim's dying declaration, testified to by Leon Buangjug and Sergio Ygot, and of the attestations of the eyewitness Pablo Petaleta, all of whom were found to be worthy of credit by the trial court, the evidence for the defense, that consists of mere denials, can not prevail (see People vs. Villanueva, 104 Phil. 450; 56 O.G. [5] 923).

There remains the issue regarding appellants' liability. It is evident that the prosecution failed to prove conspiracy between the three accused-appellants and Marceliano Arranchado. Even the 3n 3 State's evidence tends to establish that it was only after the deceased was assaulted by the appellants that Marceliano Arranchado appeared and stabbed the victim; and thereafter, it does not appear that the appellants continued their attack on the deceased. Additionally, both the ante mortem statement of the deceased and the testimony of the sole eyewitness clearly indicate that the intervention of Marceliano was distinct and separate. The medical certificate issued by the attending physician, on the other hand, gave as the sole cause of death the severe loss of blood on account of the stab wound. That the contusions inflicted upon the victim were not fatal was testified to by the same doctor. Under the circumstances, appellants may not be held guilty as co-principals, since they did not take part in the killing itself, nor did they induce Marceliano to commit the same, nor did they cooperate in the commission of the offense by another act without which it would not have been accomplished. (Art. 17, Revised Penal Code).

Neither may appellants be held guilty as accomplices to the murder under Article 18 of the Revised Penal Code for the reason that it was not proved that they knew of the criminal design of the principal culprit (Marceliano) at the time they were inflicting blows upon the deceased (see People vs. Tamayo, 44 Phil. 38and authorities cited therein). The suddenness of the attack by Marceliano in fact excludes any question of their cooperating in his homicidal attack (see U.S. vs. Reyes and Javier, 14 Phil. 27, 30).

It is an essential condition to the existence of complicity, not only that there should be a relation between the acts done by the principal and those attributed to the person charged as accomplice, but is furthermore necessary that the latter, with knowledge of the criminal intent, should cooperate with the intention of supplying material or moral aid in the execution of the crime in an efficacious way. (TS, May 23, 1905; Viada, 5 Supp., 169; TS, June 28, 1901 Viada, 4 Supp., 196, qouted in Peo. vs. Tamayo, supra, p. 49). Emphasis supplied)

The crime, therefore, committed by the appellants is only that of slight physical injures punishable under paragraph 2 of Article 266 of the Revised Penal Code, since there is no proof as to the period of the offended party's incapacity for labor or of the required medical attendance (People vs. Peñesa, 46 O.G. Supp. 1, pp. 180, et seq.). The offense was aggravated by abuse of superior strength; the trial court, however, correctly disregarded the attendance of evident premeditation.

Accordingly, this Court finds all three appellants guilty of slight physical injuries penalized by the second paragraph of Article 266 of the Revised Penal Code, committed with the aggravating circumstances of having taken advantage of superior strength, without any mitigating circumstance. We, therefore, modify the sentence imposed by the Court below appellants, reducing it to 30 days imprisonment plus the accessory penalties prescribed by law; and appellants to indemnify the heirs of the deceased Revilioso Ygot, jointly and severally, for the injuries caused by them, in the sum of P1,000.00. No costs in this instance.