mitigating cases

CrimLaw1_casesfinals_1

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G.R. No. L-30801 March 27, 1974

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

DOMINGO URAL, accused-appellant.

Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Antonio A. Torres and Solicitor Vicente P. Evangelista for plaintiff-appellee.

Vicente Cerilles and Emeliano Deleverio for accused-appellant.

AQUINO, J.:p

This is an appeal of defendant Domingo Ural from the decision of Judge Vicente G. Ericta of the Court of First Instance of Zamboanga del Sur, convicting him of murder, sentencing him to reclusion perpetua, and ordering him to indemnify the heirs of Felix Napola in the sum of twelve thousand pesos and to pay the costs (Criminal Case No. 3280).

The judgment of conviction was based on the testimony of Brigido Alberto, a twenty-six year old former detention prisoner in Buug, Zamboanga del Sur. He had been accused of murder and then set at liberty on June 9, 1966 after posting bail. He went to Barrio Camongo, Dumalinao where his father resided. On July 31, 1966, he intended to go to his residence at Barrio Upper Lamari, Buug but night overtook him in the town. He decided to sleep in the Buug municipal building where there would be more security.

Upon arrival in the municipal building at around eight o'clock, he witnessed an extraordinary occurrence. He saw Policeman Ural (with whom he was already acquainted) inside the jail. Ural was boxing the detention prisoner, Felix Napola. As a consequence of the fistic blows, Napola collapsed on the floor. Ural, the tormentor, stepped on his prostrate body.

Ural went out of the cell. After a short interval, he returned with a bottle. He poured its contents on Napola's recumbent body. Then, he ignited it with a match and left the cell. Napola screamed in agony. He shouted for help. Nobody came to succor him.

Much perturbed by the barbarity which he had just seen, Alberto left the municipal building. Before his departure, Ural cautioned him: "You better keep quiet of what I have done" (sic). Alberto did not sleep anymore that night. From the municipal building, he went to the crossing, where the cargo trucks passed. He hitchhiked in a truck hauling iron ore and went home.

Doctor Luzonia R. Bakil, the municipal health officer, certified that the thirty-year old victim, whom she treated twice, sustained second-degree burns on the arms, neck, left side of the face and one-half of the body including the back (Exh. A). She testified that his dermis and epidermis were burned. If the burns were not properly treated, death would unsue from toxemia and tetanus infection. "Without any medical intervention", the burns would cause death", she said. She explained that, because there was water in the burnt area, secondary infection would set in, or there would be complications.

Napola died on August 25, 1966. The sanitary inspector issued a certificate of death indicating "burn" as the cause of death (Exh. B).


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The trial court fittingly deplored the half-hearted manner in which the prosecution (represented by Fiscal Roque and the private prosecutor, Delfin Agbu) handled the case. It bewailed the prosecution's failure to present as witnesses Juanito de la Serna and Ernesto Ogoc, the detention prisoners who saw the burning of Napola. They had executed a joint affidavit which was one of the bases of the information for murder. 1

It noted that Rufina Paler, the victim's widow, who was present in court, was a vital witness who should have been presented as a witness to prove the victim's dying declaration or his statements which were part of the res gestae. 2

In this appeal appellant's three assignment of error may be condensed into the issue of credibility or the sufficiency of the prosecution's evidence to prove his guilt beyond reasonable doubt.

His story is that at around nine o'clock in the evening of July 31, 1966 he was in the municipal jail on guard duty. He heard a scream for help from Napola. He entered the cell and found Napola's shirt in flames. With the assistance of Ernesto Ogoc and Anecio Siton, Ural removed Napola's shirt. Ural did not summon a doctor because, according to Napola, the burns were not serious. Besides, he (Ural) was alone in the municipal building.

Felicisima Escareal, Ogoc's common-law wife, whom the trial court branded "as a complete liar", testified that she heard Napola's scream for help. She saw that Napola's shirt was burning but she did not know how it happened to be burned. She said that Ural and Siton removed the shirt of Napola and put out the fire.

Teofilo Matugas, a policeman, declared that he was relieved as guard by Ural at eight-thirty in the evening of July 31st. Matugas denied that Alberto was in the municipal building at eight o'clock.

The trial court held that Ural's denials cannot prevail over the positive testimony of Alberio. It observed that Ural's alleged act of removing Napola's burning shirt was at most an indication that he was "belatedly alarmed by the consequence of his evil act" but would not mean that he was not the incendiary.

Appellant Ural (he was thirty-four years old in March, 1969), in assailing the credibility of Alberio, pointed out that he was not listed as a prosecution witness and that he was convicted of murder.

Those circumstances would not preclude Alberio from being a credible witness. It should be noted that the accused was a policeman. Ordinarily, a crime should be investigated by the police. In this case, there was no police investigation. The crime was investigated by a special counsel of the fiscal's office. That might explain why it was not immediately discovered that Alberio was an eyewitness of the atrocity perpetrated by Ural.

The testimonies of Felicisima Escareal, Ogoc's common-law wife, and Policeman Matugas are compatible with the prosecution's theory that Ural burned Napola's shirt. Ultimately, the factual issue is: who should be given credence, Alberio or Ural? As already stated, the trial court which had the advantage of seeing their demeanor and behavior on the witness stand, chose to believe Alberio. This Court, after a searching scrutiny of the whole record, does not find any justification for disbelieving Alberio.


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This case is covered by article 4 of the Revised Penal code which provides 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". The presumption is "that a person intends the ordinary consequences of his voluntary act" (Sec. 5[c], Rule 131, Rules of Court).

The rationale of the rule in article 4 is found in the doctrine that "el que es causa de la causa es causa del mal causado" (he who is the cause of the cause is the cause of the evil caused)."Conforme a dicha doctrina no alteran la relacion de causalidad las condiciones preexistentes (como las condiciones patologicasdel lesionado, la predisposicion del ofendido, la constitucion fisica del herido, etc.); ni las condiciones sobrevenidas (como el tetanos, la pulmonia, o la gangrena sobrevenidos a consequencia de la herida)" (1 Cuello Calon, Codigo Penal, 12th Ed., 1968, p. 335-336).

The similar rule in American jurisprudence is that "if the act of the accused was the cause of the cause of death, no more is required" (40 C.J.S. 854). So, where during a quarrel, the accused struck the victim with a lighted lamp, which broke and fell to the floor, causing the oil to ignite and set fire to the rug, and, in the course of the scuffle, which ensued on the floor, the victim's clothes caught fire, resulting in burns from which he died, there was a sufficient causal relation between the death and the acts of the accused to warrant a conviction of homicide (Williams vs. U.S., 20 Fed. 2nd 269, 40 C.J.S. 854, note 90).

There is a rule that "an individual who unlawfully inflicts wounds upon another person, which result in the death of the latter, is guilty of the crime of homicide, and the fact that the injured person did not receive proper medical attendance does not affect the criminal responsibility" (U.S. vs. Escalona, 12 Phil. 54). In the Escalona case, the victim was wounded on the wrist. It would not have caused death had it been properly treated. The victim died sixty days after the infliction of the wound. It was held that lack of medical care could not be attributed to the wounded man. The person who inflicted the wound was responsible for the result thereof.

The crime committed by appellant Ural was murder by means of fire (incendio) (Par. 3, Art. 248, Revised Penal Code; People vs. Masin, 64 Phil. 757; U.S. vs. Burns, 41 Phil. 418, 432, 440). 3

The trial court correctly held that the accused took advantage of his public position (Par. 1, Art. 14, Revised Penal Code). He could not have maltreated Napola if he was not a policeman on guard duty. Because of his position, he had access to the cell where Napola was confined. The prisoner was under his custody. "The policeman, who taking advantage of his public position maltreats a private citizen, merits no judicial leniency. The methods sanctioned by medieval practice are surely not appropriate for an enlightened democratic civilization. While the law protects the police officer in the proper discharge of his duties, it must at the same time just as effectively protect the individual from the abuse of the police." U.S. vs. Pabalan, 37 Phil. 352).

But the trial court failed to appreciate the mitigating circumstance "that the offender had no intention to commit so grave a wrong as that committed" (Par. 3, Art. 13, Revised Penal Code). It is manifest from the proven facts that appellant Ural had no intent to kill Napola. His design was only to maltreat him may be because in his drunken condition he was making a nuisance of himself inside the detention cell. When Ural realized the fearful consequences of his felonious act, he allowed Napola to secure medical treatment at the municipal dispensary.


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Lack of intent to commit so grave a wrong offsets the generic aggravating, circumstance of abuse of his official position. The trial court properly imposed the penalty of reclusion perpetua which is the medium period of the penalty for murder (Arts. 64[4] and 248, Revised Penal Code).

Finding no error in the trial court's judgment, the same is affirmed with costs against the appellant. So ordered.


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[G.R. No. 135701. May 9, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELBERT CALLET y SABANAL, accused-appellant.

D E C I S I O N

PUNO, J.:

The accused, ELBERT CALLET y SABANAL was charged with Murder before the Regional Trial Court of Negros Oriental, Dumaguete City, Branch 30. The crime was allegedly committed as follows:[1]

“That on or about 5:00 o’clock in the afternoon of September 15, 1996, at Barangay Tambulan, Tayasan, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill, evident premeditation and treachery, did then and there willfully, unlawfully and feloniously attack, assault and stab one ALFREDO SENADOR with the use of a knife with which the said accused was then armed and provided, thereby inflicting upon said victim the following injury, to wit:

A stab wound measuring two (2) cm. in length, 0.3 cm. in width and eleven (11) cm. in deepness located at the left side of the trunk, about two (2) cm. above the left clavicular bone. The wound was directed downward and slightly to the right.

which injury or wound caused the death of said ALFREDO SENADOR shortly thereafter.

Contrary to Article 248 of the Revised Penal Code.”

When arraigned on June 11, 1997, the accused pled “not guilty.” [2]

The prosecution presented the testimonies of Dr. Rogelio Kho, Lecpoy Senador, Eduardo Perater, Manuel Gabonales and Francisca Senador. For the defense, the accused, Elbert Callet, PO3 Roy Balasabas,Barangay Captain Dominador Calijan and Nilo Callet testified.

The evidence for the prosecution shows that on September 15, 1996, at 5:00 p.m., the victim, Alfredo Senador, his 12-year old son, Lecpoy Senador, and Eduardo Perater were at the flea market of barangayTambulan, Tayasan, Negros Oriental. There were many people in the vicinity. Some were playing cara y cruz while others were playing volleyball.

Alfredo, Lecpoy and Eduardo were beside each other as they watched a cara y cruz game. Alfredo sat close to the ground, with his buttocks resting on his right foot. Lecpoy and Eduardo sat on a piece of wood and on a stone, respectively.

Out of nowhere, the accused, Elbert Callet, appeared behind Alfredo and stabbed the latter on the left shoulder near the base of the neck with a 9-inch hunting knife. Instinctively, Alfredo stood up and managed to walk a few meters. When he fell on the ground, Lecpoy and Eduardo rushed to help him but to no avail. Alfredo died shortly thereafter.

Manuel Gabonales was also at the flea market at that time. At 5:00 p.m., he saw people running away from the place where there was a cara y cruz game. Next, he saw Alfredo and the accused. Alfredo was soaked in blood while the accused was running towards the basketball court. He asked Alfredo what happened to him. Alfredo replied that the accused stabbed him. The accused was then standing at the basketball court. Manuel helped Lecpoy

http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/135701.htm#_edn1



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and Eduardo carry Alfredo under a mango tree. He thought of bringing Alfredo to the hospital when he saw blood oozing from his mouth. After a moment, Alfredo died.

Dr. Rogelio Kho, Municipal Health Officer at Tayasan, autopsied the body of Alfredo on September 16, 1996. The doctor found a stab wound on the left shoulder of Alfredo, near the base of the neck. He opined that the victim died due to “severe hemorrhage and irreversible shock due to stab wound.”[3]

The defense gave a different account of the stabbing incident.

Allegedly, at 3:00 p.m., the accused, Elbert Callet, played volleyball near the flea market. After two (2) games, he stopped playing. It was past 4:00 p.m. He stayed at the flea market and watched as others played volleyball. While watching the game, he was hit on the left side of the body by Alfredo’s elbow. He asked Alfredo why he hit him. Alfredo retorted, “Are you angry?” Next, Alfredo grabbed his left arm and tried to twist it. He pleaded with Alfredo to let go of his arm, but Alfredo warned that he would be his third victim if he would get angry with him. As Alfredo was pulling out a hunting knife from his waist, he (the accused) managed to stab him first. Thereafter, he ran towards the municipal hall to surrender.

Dominador Calijan, the Barangay Captain of Tayasan, happened to be at the basketball court near the scene of the crime. He encountered Alfredo along the road after the stabbing incident. Alfredo had a stab wound on the lower nape. Calijan asked Alfredo who stabbed him and the latter gave the name of the accused. He directed his barangay tanods to arrest the accused.

Barangay tanods Nilo Callet and Jesus Dagodog were able to catch up with the accused three (3) kilometers away from the scene of the crime. He was still holding the hunting knife and refused to surrender it for fear that the relatives of Alfredo would retaliate. The barangay tanods escorted him to the municipal hall. Along the way, they asked him why he stabbed Alfredo. The accused replied that he could not help it and that everything happened too fast. Upon reaching the municipal hall, the accused surrendered the hunting knife. He was turned over to PO3 Roy Balasbas for investigation.

After the trial, the accused was found guilty of murder. The fallo of the trial court’s decision[4] states:

“WHEREFORE, finding the accused ELBERT CALLET Y SABANAL guilty beyond a scintilla of doubt for the crime of MURDER penalized under Article 248 of the Revised Penal Code, taking into account the mitigating circumstance of voluntary surrender without any aggravating circumstance, the accused is hereby sentenced to RECLUSION PERPETUA with all the accessory penalties provided under Article 41 of the Revised Penal Code.

Accused is ordered to pay the legal heirs of Alfredo Senador the sum of Fifty Thousand Pesos (P50,000.00) as indemnity for his death.

Costs against the accused.”

Hence, the appeal. The accused contends that:[5]

“1. THE HONORABLE REGIONAL TRIAL COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE IN FINDING THAT THE ACCUSED KILLED THE VICTIM WITH TREACHERY;





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2. THE HONORABLE REGIONAL TRIAL COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE IN FINDING THAT THE ACCUSED FAILED TO PROVE THE ELEMENTS OF SELF-DEFENSE;

3. THE HONORABLE REGIONAL TRIAL COURT GRAVELY ERRED IN FAILING TO CONSIDER THE MITIGATING CIRCUMSTANCE THAT THE ACCUSED DID NOT INTEND TO COMMIT SO GRAVE A WRONG.”

We affirm. The conviction of the accused is clearly supported by the evidence.

Two (2) eyewitnesses positively identified the accused, Elbert Callet, as the one who fatally stabbed the victim, Alfredo Senador. Eyewitness Lecpoy Senador testified as follows:[6]

“(PROS. HERMOSA):

Q: About that time 5:00 ‘clock in the afternoon on September 15, 1996, where were you and your companions situated or stationed since you said you were particularly at the flea market?

x x x x x x x x x

A: We were in Tambulan.

Q: In what particular place were you at the flea market?

A: In the place where there was a “cara y cruz”.

x x x x x x x x x

Q: What were you and your father as well as Eduardo Perater doing at that moment at 5:00 o’clock on September 15 at the place where there was a game of “cara y cruz”?

A: We were looking at the “cara y cruz”.

Q: While you were looking at the “cara y cruz” game, do you recall if there was an unusual incident that happened?

A: Yes, there was.

Q: What was this unusual incident that happened?

A: My father was stabbed.

Q: Who stabbed your father?

A: Elbert Callet.

Q: Elbert Callet whom you just identified a while ago?

A: Yes.

x x x x x x x x x

Q: Where was Elbert Callet in relation to your father when he stabbed your father?

A: At the back of my father.

Q: What was the position of your father when he was stabbed by the accused?

A: He was sitting.



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Q: Where was your father hit if you know?

A: Left shoulder.

Q: What happened after Elbert Callet stabbed your father?

A: My father walked.

Q: Towards what place?

A: Towards the area where there was a volleyball game.

Q: And what eventually happened to him?

A: He fell down.

Q: And then, what happened after he fell down?

A: We carried him to a place where there was a mango tree.

x x x x x x x x x

Q: What happened or what transpired after you brought your father towards the mango tree?

A: My father died.

Q: After stabbing your father, what did Elbert Callet do if he did anything?

A: He ran away.

Q: What did he use in stabbing your father?

A: Hunting knife.”

(emphases ours)

Another eyewitness, Eduardo Perater, testified as follows:[7]

“(PROS. HERMOSA):

Q: All right, at about 5:00 o’clock in the afternoon of that day, can you recall if there was an unusual incident that happened?

A: Yes, there was.

Q: What was that unusual incident?

A: There was a stabbing incident.

Q: Who was stabbed?

A: Alfredo Senador.

Q: Who stabbed Alfredo Senador?

A: Elbert Callet.

Q: The same Elbert Callet whom you just identified a while ago in the courtroom?

A: Yes.

Q: What was the position of Alfredo Senador when he was stabbed by Elbert Callet?



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A: He was sitting down.

Q: Will you please demonstrate to us the manner how Alfredo Senador was sitting down at the time when he was stabbed by the accused in this case?

A: (Witness in squatting position, he was sitting with his buttock on his right foot).

x x x x x x x x x

Q: Where was Elbert Callet situated when he stabbed Alfredo Senador?

A: At the back of Alfredo Senador.

Q: Was there any argument between Alfredo Senador and Elbert Callet before Alfredo Senador was stabbed?

A: There was none.

x x x x x x x x x

Q: How many times did Elbert Callet stab Alfredo Senador?

A: Only one (1).

Q: Was Alfredo hit when he was stabbed by Elbert Callet?

A: Yes.

Q: In what part of the body of Alfredo Senador was hit?

A: In the left shoulder.

x x x x x x x x x

Q: What happened after Alfredo Senador was hit by the stabbing of Elbert Callet?

A: He stood up.

Q: What did Elbert Callet use in stabbing Alfredo Senador?

A: A hunting knife.

x x x x x x x x x

Q: What about Elbert Callet, what did he do after stabbing Alfredo Senador?

A: He ran away.

Q: What did he do with his knife which he used in stabbing Alfredo senador?

A: He carried it with him.”

(emphases ours)

We give full faith and credit to the testimonies of Lecpoy and Eduardo. Their testimonies were vivid with details. They were clear and consistent with each other.

The accused laments that Lecpoy Senador is a biased witness, being a son of the victim. We are not convinced.

The fact that Lecpoy is a son of the victim would not necessarily make him untrustworthy. This Court has ruled that “(b)lood relationship between a witness and the victim does not by itself impair the credibility of witnesses. On the contrary, relationship may


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strengthen credibility, for it is unnatural for an aggrieved relative to falsely accuse someone other than the real culprit. The earnest desire to seek justice for a dead kin is not served should the witness abandon his conscience and prudence and blame one who is innocent of the crime.”[8] Significantly, there is no showing that this young eyewitness has any ill motive to testify falsely against the accused.

To be sure, even without the testimony of Lecpoy, the testimonies of Eduardo Perater and Manuel Gabonales would suffice to convict the accused. They are disinterested witnesses.[9] Their identification of the accused as the assailant is beyond question.

Still assailing the credibility of the eyewitnesses, the accused points out that in the joint affidavit[10] f Lecpoy and Eduardo, it was stated that the victim was “standing with his back facing Elbert Callet.” However, they contradicted their affidavit when they testified at the trial that the victim was “sitting, with his buttocks resting on his right foot.”

The cited inconsistency will not exculpate the accused. We quote with approval the following observations of the trial court:[11]

“…In the instant case, the direct and candid testimonies of eyewitnesses Lecpoy Senador and Eduardo Perater clearly showed that the killing of Alfredo Senador was attended by treachery. Alfredo Senador was sitting with his buttocks on his right foot watching the game of “cara y cruz” when Elbert Callet who was at the back of the victim stabbed him using a nine (9) inch hunting knife hitting him near the base of his neck. The victim … was not in a position to defend himself from the accused who deliberately and consciously positioned himself at the back of the unsuspecting victim to ensure the accomplishment of his evil desire without risk to himself. The location of the stab wound at the left side of the trunk about two (2) centimeters from the base of the neck and four (4) centimeters above the left clavicular bone with a deepness of eleven (11) centimeters directed downward and slightly to the right also suggests that the accused deliberately and consciously selected that part of the human body to ensure the instantaneous death of the victim. Although the counsel of the accused tried to discredit the testimonies of the prosecution witnesses by pointing that in their joint affidavit dated 20 September 1996 Lecpoy Senador and Eduardo Perater stated that Alfredo Senador was “standing” when he was stabbed, the said discrepancy could not in any way affect the categorical, candid, consistent and straightforward declaration of the said eyewitnesses made in open court that Alfredo Senador was sitting when he was stabbed by the accused. Discrepancies between sworn statements or affidavits and testimonies made at the witness stand do no necessarily discredit the witnesses (People vs. Ferrer, 255 SCRA 19). This is because it is a matter of judicial experience that an affidavit being taken ex parte is almost always incomplete and often inaccurate (People vs. Castillo, 261 SCRA 493). Moreover, as noted by this Court the word “standing” was superimposed after the original typewritten word was erased using a snopic (sic) or white substance.” (emphases ours)

In addition, we note that Lecpoy and Eduardo did not countersign the superimposition in the subject affidavit. In the absence of clear proof that they confirmed the change, they should not be bound by it.

The accused invokes self-defense for his acquittal. In self-defense, the burden of proof rests upon the accused. Thus, he must present clear and convincing evidence that the following elements are present, to wit: (1) unlawful aggression; (2) reasonable necessity of the






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means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself.[12] The accused failed to discharge this task.

The accused alleged that he and the victim had hunting knives during their encounter. After the victim’s elbow hit the left side of his body, the victim grabbed his left arm and tried to twist it with his right arm. A verbal exchange ensued between them and then the victim, using the left arm tried to unsheathe the knife that was tucked at his left side. However, the victim was not able to pull out the knife because it got entangled with his shirt tucked in his pants. In defense, the accused allegedly pulled out his own knife that was tucked in the right side of his waist using his left arm and stabbed the victim on the left shoulder. He then retreated and left as the victim was still trying to approach him.[13]

The version of the accused does not inspire belief. The incident happened in plain view of many witnesses at the flea market. He even claimed he was with a certain Guale and one Sonny Boy at that time.[14] Yet, nobody corroborated his story. Indeed, his narration on how the victim “attacked” him is improbable. In the witness chair, he admitted that the victim was bigger than him and that his left hand was restrained by the victim.[15] It is thus incredible how he could pull out his knife from his right side, with the use of his left hand,[16] raise that knife high enough to hit the shoulder of the victim and inflict an 11-cm. deep wound upon him. It is more probable that the victim was sitting down when the accused attacked him from behind as the prosecution witnesses testified. Equally incredulous is the claim that after being injured, the victim still tried to approach and attack him, hence, he had to retreat. The accused’s uncorroborated plea of self-defense cannot be entertained, especially when it is, in itself, extremely doubtful.[17]

The Information charged that evident premeditation and treachery attended the commission of the crime. The evidence failed to prove evident premeditation. Evident premeditation requires proof of: (1) the time when the accused decided to commit the crime; (2) an overt act manifestly indicating that he has clung to his determination; and (3) sufficient lapse of time between the decision and the execution to allow the accused to reflect upon the consequences of his act.[18] The records show that the prosecution did not adduce any evidence to prove these elements.

Treachery or alevosia exists when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.[19]

The trial court correctly held that treachery qualified the killing of the victim to murder. The stabbing was from behind, done in a sudden and unexpected manner while the victim was sitting close to the ground, with his buttocks resting on his right foot, and while his attention was focused on the on-going cara y cruz game.[20] Clearly, the victim was not able to defend himself from the mode of attack.

The trial court also correctly credited the accused with voluntary surrender to mitigate his liability. Voluntary surrender requires that the offender had not been actually arrested; that he surrendered himself to a person in authority or to the latter’s agent; and that the surrender was voluntary.

The records reveal that the accused ran toward the municipal building after the stabbing incident. On his way to the municipal building, he admitted to Barangay Tanods Nilo Callet and Jesus Dagodog that he stabbed the victim. Although he did not immediately turn over his weapon to them for fear of retaliation from the victim’s relatives, he did so as soon as they reached the municipal building. Undoubtedly, the conduct he displayed was spontaneous as it











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shows his interest to give himself up unconditionally to the authorities, thus saving the State the trouble and expenses necessarily incurred in his search and capture.[21]

The accused also claims that his liability should be mitigated by the fact that he had no intention to commit so grave a wrong. We are not persuaded.

The lack of “intent” to commit a wrong so grave is an internal state. It is weighed based on the weapon used, the part of the body injured, the injury inflicted and the manner it is inflicted. The fact that the accused used a 9-inch hunting knife in attacking the victim from behind, without giving him an opportunity to defend himself, clearly shows that he intended to do what he actually did, and he must be held responsible therefor, without the benefit of this mitigating circumstance.[22]

As the killing was attended by treachery, the accused is liable for the crime of murder. The prescribed penalty therefor is reclusion perpetua to death.[23] In view of the presence of the mitigating circumstance of voluntary surrender, the trial court correctly meted the penalty of reclusion perpetua against the accused.

The civil indemnity awarded in favor of the legal heirs of the victim, Alfredo Senador, in the amount of P50,000.00 is in accord with the Court’s current policy.

IN VIEW WHEREOF, the decision appealed from, finding the accused, ELBERT CALLET, guilty beyond reasonable doubt of Murder in Criminal Case No. 12995, and sentencing him to suffer reclusion perpetua and to pay the legal heirs of the victim, ALFREDO SENADOR, the amount of P50,000.00 as civil indemnity, and to pay the costs, is AFFIRMED.

Costs against accused-appellant.

SO ORDERED.





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EN BANC

G.R. No. 46252 September 30, 1939

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. LEONOR DE MOLL,defendant. FRANCISCO ANCHUELO, complainant-appellant.

Francisco Anchuelo in his own behalf. Marcelo Y. Garchitorena for defendant.

Office of the Solicitor-General Tuason for appellee.

DIAZ, J.:

There are two questions to be decided in this case, by virtue of the appeal taken by the person claiming to be the offended party, Francisco Anchuelo, to wit: (1) whether or not the order of the Court of First Instance of Camarines Sur, dated March 28, 1938, dismissing said case while it was pending therein, at the instance of the provincial fiscal who filed a motion to that effect on account of insufficiency of evidence and for the reason that the proper action is a civil and not a criminal action, is in accordance with law, and (2) whether or not said offended party could appeal from said order.chanroblesvirtualawlibrary chanrobles virtual law library

The appellant contends that said order is not in accordance with law and supports his opinion by the reasons stated by him in his brief.chanroblesvirtualawlibrary chanrobles virtual law library

The case in question was filed by the appellant in the court of origin to charge Leonor de Moll with the crime of estafa. The complaint filed by him alleged as follows:

That during the month of October, 1936, in the Municipality of Tigaon, Camarines Sur, and within the jurisdiction of this court, said accused, alleging herself to be the owner of shares of stock completely released by the San Rafael Mambulao Mining, Inc., for the purpose of defrauding the complainant and his predecessors in interest, sold 5,000 shares to Natividad Mateo, 5,000 shares to Emilia Tiongson and 1,000 shares to the undersigned, having received from the above-named two persons and from the undersigned, respectively, the sum of P240, as advance payment thereof.chanroblesvirtualawlibrary chanrobles virtual law library

That said Emiliana Tiongson and Natividad Mateo endorsed their shares bought of Leonor de Moll to the complainant, but the latter afterwards found out that the shares in question had not been paid for by Mrs. Moll to the aforesaid company and are not duly released by the latter in favor of said Leonor de Moll, to the prejudice of the undersigned in the sum of P240.chanroblesvirtualawlibrary chanrobles virtual law library

Contrary to law.chanroblesvirtualawlibrary chanrobles virtual law library

Naga, Camarines Sur, February 14, 1938.

(Sgd.) FRANCISCO ANCHUELO Complainant


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As soon as the court received the above-quoted complaint, it endorsed the same to the fiscal for the latter to conduct the necessary investigation, and said official, after having done so, later filed his motion for dismissal on March 26, 1938, couched in the following terms:

The undersigned Acting Provincial Fiscal has investigated this case. The complainant presented the following documents, to wit:chanrobles virtual law library

"Received from Mrs. Emiliana T. de Austria the sum of one hundred pesos (P100) Philippine currency on account of the sum of two hundred pesos (P200) representing the value of five thousand (5,000) completely released shares of the San Rafael Mambulao Mining, Inc., sold by me to said lady at P0.40 per share, which form part of the shares purchased by me from said Corporation, as evidenced by Receipt No. 202 issued to me by said San Rafael Mambulao Mining, Inc. The balance will be paid by the purchaser within the period of 30 days from this date, after which I shall execute the corresponding document for the transfer of the shares sold to the purchaser. - Tigaon, Camarines Sur, October 10, 1936. - (Sgd.) LEONOR DE MOLL."chanrobles virtual law library

"Received from Mrs. Natividad Mateo, the sum of one hundred peso (P100) on account of the sum of two hundred pesos (P200) representing the value of five thousand (5,000) completely released shares of the San Rafael Mambulao Mining, Inc. sold by me to said lady at P0.40 per share, which form part of the shares purchased by me from said Corporation, as evidenced by Receipt No. 202 issued to me by said San Rafael Mambulao Mining, Inc. The balance will be paid by the purchaser within the period of 30 days from this date, after I shall execute the corresponding document for the transfer of the shares sold to the purchaser. - Tigaon, Camarines Sur, October 10, 1936. - (Sgd.) LEONOR DE MOLL."chanrobles virtual law library

"Know All Men By These Presents: That I, Leonor de Moll, Filipino citizen, married to Mr. Sebastian Moll, of age, native, resident of and with post-office address in the municipality of Tigaon, Province of Camarines Sur, Philippine Islands, with ample powers, by marital authority, to enter into contracts, hereby state: that in consideration of sum of forty pesos (P40) Philippine currency received by me to my complete satisfaction from Mr. Francisco Anchuelo, married to Marcela Reyes, Filipino citizen, of age, native, resident of and with post-office address in Naga, Camarines Sur, Philippine Islands, hereby SELL, ASSIGN and CONVEY to said Mr. Francisco Anchuelo, his heirs, assignees and successors in interest, one thousand (1,000) completely released shares of the San Rafael Mambulao Mining, Inc., which form part of the shares purchased by me from said corporation, as evidenced by Receipt No. 202 issued to me by said San Rafael Mambulao Mining, Inc. - I hereby confer upon the corresponding official of the San Rafael Mambulao Mining, Inc. ample powers required by law to make the necessary transfer of said one thousand (1,000) shares in his books in the name of the purchaser Mr. Francisco Anchuelo. - And in witness whereof, I hereunto affix my signature in the municipality of Tigaon, Camarines Sur, P.I., this 5th day of October, 1936. - (Sgd.) LEONOR DE MOLL. - Signed in the presence of : (Sgd.) PABLO (Illegible). - (Sgd.) MARCELO Y. GARCHITORENA. - UNITED STATES OF AMERICA. - PHILIPPINE ISLANDS. - In the municipality of Tigaon, Camarines Sur, P.I., on this 5th day of October, 1936, personally appeared before me Doña Leonor de Moll, whom I certify to be known to me as the same person who executed the foregoing deed of sale of one thousand shares of the San Rafael Mambulao Mining, Inc., composed of only one page, and acknowledged this same document to be her own free and voluntary act and deed. She is exempt from cedula certificate by reason of her sex. - Before me. - (Sgd.) MARCELO Y. GARCHITORENA. - Notary public. - Until December 31, 1936. - Book 5. - Document No. 53. - Page 85. - Series of 1936."chanrobles virtual law library


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"COMMONWEALTH OF THE PHILIPPINES. - DEPARTMENT OF JUSTICE. - SECURITIES AND EXCHANGE COMMISSION. - MANILA COMMISSIONER. -September 27, 1937. - Mr. F. ANCHUELO. - Naga, Camarines Sur. - SIR: - For your information and in reply to your communication of September 1, 1937, I am quoting hereunder the following pertinent explanations given by the San Rafael Mambulao Mining Co. in connection with the subscriptions of Mrs. Leonor de Moll: - Our records shows that Mrs. Moll has subscription to the capital stock of this corporation amounting to P7,300 as per Provisional Receipt No. 202. On this subscription only 25 per cent or P1,825 has been paid. Such being the case, any transfer made by Mrs. Moll to a third party cannot be recognized by us inasmuch as, so long as the full par value of her subscription is not fully paid up, no valid transfer can be effected in our books. The pertinent provision of law regarding this point reads as follows: - "No share of stock against which the corporation holds any unpaid claim shall be transferable on the books of the corporation." (Par. 2, sec. 35, Act No. 1459, as amended.) - At the same time, please be informed that there is a pending garnishment against, the subscription of Mrs. Moll by a third party, for which the reason even if the balance of her subscription is fully paid up, no transfer can be made by this Company, until garnishment is lifted. - In view of the foregoing, this Office regrets its inability to intervene in this case. - Very respectfully, For the Commissioner: - (Sgd.) N. ROXAS, Technical Assistant."chanrobles virtual law library

"SEBASTIAN MOLL. - TIGAON, CAMARINES SUR. - July 2, 1937. - Mr. FRANCISCO ANCHUELO. - Naga. - MY DEAR SIR: I received your only letter just yesterday and I assure you that upon my return from Manila I shall bring you your certificate corresponding to the one thousand shares of San Rafael Mambulao. Your attentive (illegible). - (Sgd.) LEONOR DE MOLL.chanroblesvirtualawlibrary chanrobles virtual law library

"We, Emiliana Tiongson and Natividad Mateo, hereby state: That the ten thousand (10,000) San Rafael Mambulao shares sold to us by Mrs Moll, for which we have been advanced the sum of two hundred pesos (P200), have been endorsed by us to Mr. Francisco Anchuelo from the month of September, 1936, and for the consequent legal effects, we subscribe this document at Naga, Camarines Sur, this 18th day of February, 1938. - (Sgd.) EMILIANA TIONGSON. - (Sgd.) NATIVIDAD MATEO."

The facts stated in the above-quoted motion of the provincial fiscal of Camarines Sur, which are unreservedly admitted by the appellant himself in his brief, clearly show that the dismissal of the case in the court of its origin was justified. With such evidence as that mentioned in the aforesaid motion of the fiscal, it is not only doubtful but certain that the outcome of the proceeding, had it been continued, would have been adverse to the prosecution, the accused would have been acquitted, and the fiscal would have lost the case, since, in every criminal proceeding, the criminal liability of the accused must be established by conclusive evidence beyond reasonable doubt.chanroblesvirtualawlibrary chanrobles virtual law library

The second question is: Was the disputed order of the lower court appealable as to Francisco Anchuelo? This question has already been decided by this court in the case ofGonzalez vs. Court of First Instance of Bulacan (G.R. No. 45233, 36 Off. Gaz., 2059), and there is no reason to decide it again, much less, to decide it differently, because the law on the matter continues to be the sale as before.chanroblesvirtualawlibrary chanrobles virtual law library

In said case we stated and held, and we again do see now in the present case, that the offended party in a criminal action is not entitled to appeal from an order of dismissal rendered or issued by the court in a preliminary investigation, upon motion of the fiscal based on the


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insufficiency of evidence. If the offended party appeals under the said circumstances, he does so undoubtedly not for the main purpose of seeking the punishment of the accused, but to enforce his alleged right to an indemnity for damages. This action, to which he is entitled for the purpose of seeking indemnity, is subordinate to that of the fiscal, which is to ask for the punishment of the accused, and the said officer is the one charged with the prosecution and punishment of said accused, and, of course, with the direction and control of said action or proceeding. After all, the offended party has the remedy of bringing a civil action independently of the criminal action, as this is in perfect accord with the provisions of article 111, in connection with article 117, of the Spanish Code of Criminal Procedure of September 14, 1882, which must be understood to be still in force as a supplement to the Code of Criminal Procedure, as expressly provided by article 1 of said Code, the same not being in conflict with any of its provisions.chanroblesvirtualawlibrary chanrobles virtual law library

The fiscal should be the only judge to determine whether the prosecution of a case should go forward after a preliminary investigation, or another one conducted by the fiscal himself, taking into consideration the evidence he has at his disposal in support of his information. It is of no avail to insist that instead of this practice, the one indicated in the case of Baes vs. Court of First Instance of Laguna, (G.R. No. 45780), decided on December 29, 1937), should be followed, because there is no parity between the facts proved in said case and those proved in the Gonzalez case. In the Baes case, the question raised was whether or not the facts alleged in the information were sufficient to constitute an offense, while the question raised herein, as the one raised in the Gonzalez case, supra, is whether or not the evidence in the possession of the fiscal was sufficient to secure the conviction of the accused.chanroblesvirtualawlibrary chanrobles virtual law library

It is not prudent or even permissible for a court to compel the fiscal to prosecute to its termination a proceeding initiated by him by means of an information, or by another, by means of a complaint, if after the preliminary investigation said official finds that the evidence relied upon by him to justify such step is insufficient. To compel the fiscal to do so, ignoring his opinion relative to the insufficiency of his evidence and his recommendation to dismiss the case in the meantime, would be tantamount to urging the acquittal of the accused. Instead of the appeal that may be interposed by the offended party from the dismissal of the criminal proceeding sought by the fiscal for insufficiency of the evidence, there is open to him the course provided by the law itself for the purpose of enforcing his rights (arts. 111 and 117 of the Spanish Code of Criminal Procedure, supra), without impairing the action of the fiscal, and that is to bring the necessary civil action separately, because an adverse judgment or an absolution in a civil action does not imply or later constitute a defense of res judicata, nor can it be a bar to a subsequent prosecution of the accused, if after the civil action, said fiscal succeeds in completing his evidence to assure the conviction of the accused in a criminal proceeding.chanroblesvirtualawlibrary chanrobles virtual law library

Section 107 of General Orders No. 58, contains this provision, which is pertinent to this case:

The privileges now secured by law to the person claiming to be injured by the commission of an offense to take part in the prosecution of the offense and to recover damages for the injury sustained by reason of the same shall not be held to be abridged by the provisions of this order; but such person may appear and shall be heard either individually or by attorney at all stages of the case, and the court upon conviction of the accused may enter judgment against him for the damages occasioned by his wrongful act. It shall, however, be the duty of the promotor fiscal to


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direct the prosecution, subject to the right of the person injured to appeal from any decision of the court denying him a legal right.

The part purposely italicized by us should be noted because it is of special significance to the question under consideration.chanroblesvirtualawlibrary chanrobles virtual law library

With the dismissal of the case ordered by the lower court, no right was denied the appellant. He is still entitled to demand enforcement of the civil liability of the accused in a separate case, and this is the proper thing for him to do, because were he to insist in the prosecution of the case and should the accused be acquitted therein, his efforts would have been completely in vain, since acquittal of a crime necessarily implies exemption from all liability, including the civil one, if the latter is a necessary consequence of or arises from the former.chanroblesvirtualawlibrary chanrobles virtual law library

For all the foregoing considerations, it is held that the order in question is in accordance with law and was not appealable by Francisco Anchuelo, either as offended party or as a complaint.chanroblesvirtualawlibrary chanrobles virtual law library

Wherefore, it is hereby affirmed, with the costs to the appellant. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library

Avanceña, C.J., Villa-Real, Laurel, and Moran, JJ., concur.


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Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. L-45100 October 26, 1936

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs.

EPIFANIO DIOKNO and ROMAN DIOKNO, defendants-appellants.

Ramon Diokno and Gabriel N. Trinidad for appellants. Office of the Solicitor-General Hilado for appellee.

VILLA-REAL, J.:

Epifanio Diokno and Roman Diokno appeal to this court from the judgment of the Court of First Instance of Laguna, the dispositive part of which reads as follows:

In view of the foregoing considerations, the court finds the accused Epifanio Diokno and Roman Diokno guilty of the crime of murder, beyond a reasonable doubt, and sentences each of them to reclusion perpetua, to indemnify jointly and severally the heirs of the deceased in the sum of P1,000 and to pay the costs of the suit. It is so ordered.

In support of their appeal, the appellants assign the following alleged errors as committed by the court a quo in its judgment in question, to wit:

1. The lower court erred in accepting Exhibit E as evidence.

2. The lower court erred in admitting Exhibit K as evidence.

3. The lower court erred in not acquitting the appellant Roman.

4. The lower court erred in sentencing the appellant Epifanio to reclusion perpetua.

The following facts have been proven beyond a reasonable doubt during the trial:

The deceased Yu Hiong was a vendor of sundry goods in Lucena, Tayabas. At about 7 o'clock in the morning of January 4, 1935, Salome Diokno, to whom Yu Hiong was engaged for about a year, invited the latter to go with her. Yu Hiong accepted the invitation but he told Salome that her father was angry with him. Salome answered him: "No matter, I will be responsible." At about 6 o'clock in the afternoon of said day, Yu Hiong and Salome Diokno took an automobile and went to the house of Vicente Verina, Salome's cousin, in Pagbilao. As they found nobody in the house, they went on their way up to San Pablo, Laguna. On January 5th or 6th of said year, Roman Diokno telegraphed his father Epifanio Diokno, who was in Manila, informing him that Salome had eloped with the Chinese Yu Hiong. On the morning of January 7, 1935, Epifanio Diokno and Roman Diokno went to San Pablo, Laguna, in search of the elopers. Having been informed that the latter were stopping at the house of Antonio Layco, they went there. Upon arriving near the house, they saw Yu Hiong


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coming down the stairs. When Yu Hiong saw them, he ran upstairs and they pursued him. As the Chinese found the door of the house locked, he shouted that it be opened for him. At that moment, he was overtaken by the accused who carried knives locally known as balisong, of different sizes. Yu Hiong fell on his knees and implored pardon. In that situation Roman Diokno stabbed him with the knife in the back and later in the left side. Epifanio Diokno also stabbed him once. Yu Hiong fell on the landing of the stairs in the balcony, and there he was again stabbed repeatedly. Then Roman Diokno said: "Enough, father." Yu Hiong lost consciousness. Juan Alcantara, who lived on the same street, Hermanos Belen, in front of Antonio Layco's house, saw the accused pursue Yu Hiong and fired shots for the police to come. Upon hearing the shots, municipal policeman Francisco Curabo appeared and found Yu Hiong pale and lying on the landing of the stairs. He then asked who had wounded the Chinese and the accused Epifanio Diokno answered that it was he. The policeman took the knife (Exhibit C) which Epifanio Diokno carried in his right hand and brought him to police headquarters. Roman Diokno had left before the policeman arrived and he was not located until after three days. The municipal president of San Pablo, Laguna, also went to the scene of the crime, found the Chinese almost unconscious and questioned him, putting down his answers in Exhibit E. The Chinese was brought to the provincial hospital of San Pablo where he was examined by Drs. David Evangelista and Manuel Quisumbing, who found that he had five incised wounds in different parts of the body, one of them at the back and about three and a half inches long, piercing the pleura and penetrating the lower lobe of the right lung about an inch, which wound was necessarily mortal and which caused the death of the victim. On January 8, 1935, while the said Chinese was in a serious condition in the hospital, he made a statement telling how he was attacked by the accused (Exhibit K).

The accused, testifying as witnesses in their own behalf, stated that they had not gone to San Pablo together on the day in question; that when Roman Diokno arrived, his father Epifanio Diokno was coming down the stairs of Antonio Layco's house with a knife in his hand; that Epifanio Diokno told his son Roman to go home and tell their relatives what had happened; that when Epifanio Diokno overtook Yu Hiong on the landing of the stairs of Antonio Layco's house, he asked Yu Hiong whether he was willing to marry his daughter; that the Chinese answered him in the negative and at the same time tried to take something from his pocket; that as Epifanio knew that Yu Hiong carried a revolver, he feared the Chinese might harm him; he became obfuscated, drew his knife and knew not what happened afterwards.

The first question to be decided in the present appeal is whether or not the court a quo erred in admitting as evidence Exhibit E, consisting in the investigation conducted by the municipal president of San Pablo in the same place where Yu Hiong had fallen a few minutes before, at about 1.30 p. m. on January 7, 1935, and wherein Yu Hiong, answering the questions asked by said municipal president, stated that it was Ramon Diokno and Epifanio Diokno who had wounded him.

It is argued by the defense that said document Exhibit E should not be admitted on the ground that some words had been altered and because it has not been proven that declarant had a sense of impending death.

It does not appear that said document was altered after it had been signed, but on the contrary, municipal president Jacinto Peñaflor, upon being cross-examined by the defense, declared that he neither erased any word nor put another in its place after said document had been finished.

The fact that Yu Hiong failed to state that he had given up all hope of life, in answering the municipal president's questions, does not make his declaration inadmissible. It is enough if, from the circumstances of the case, it can be inferred with certainty that such must have been his state of mind (People vs. Chan Lin Wat, 50 Phil., 182). In the present case, Yu Hiong was semiconscious as a result of the wounds received by him and, consequently, he could not have the hope to live when


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he made his declaration immediately after he was mortally wounded. But even if the document Exhibit E were not admissible as an ante mortem declaration, it is admissible as a part of theres gestæ because it was made under circumstances so proximate to the incident that it may be considered as a part thereof. (People vs. Portento and Portento, 48 Phil., 971; People vs. Palamos, 49 Phil., 601.)

The first assignment of alleged error is, therefore, untenable.

With respect to the second assignment of alleged error consisting in that the court a quo erred in admitting Exhibit K as an ante mortem declaration of Yu Hiong, because it does not appear that when the declarant made it he was aware of impending death and that he did not die until three days after making it, all that has been said relative to Exhibit E, which is the subject matter of the first assignment of alleged error, may be repeated in connection with said Exhibit K, in the sense that it is admissible as an ante mortem declaration. Furthermore, when the deceased made the declaration Exhibit K, he complained of great difficulty in breathing and of being very ill. The fact that he did not die until three days later neither implies that he had no sense of impending death when he made his declaration because he did not improve thereafter but became worse until he died; nor detracts from its character of an ante mortem declaration because what gives the declaration such character is the declarant's conviction, upon making it, that he is not going to live (U. S. vs. Mallari, 29 Phil., 14).

The third assignment of alleged error consists in the failure of the court a quo to acquit the appellant, Roman Diokno.

The testimony of the eyewitnesses Juan Alcantara and Antonio Layco corroborated by the different dimensions of the wounds which, according to Dr. Manuel Quisumbing, were caused by two instruments of different sizes, and the ante mortem declarations (Exhibits E and K) of the deceased, leave no room for doubt that Roman Diokno cooperated with his father and stabbed the deceased Yu Hiong with a knife in different parts of the body. Furthermore, the deceased stated in his ante mortem declaration (Exhibit K) that it was Roman Diokno who inflicted the necessarily mortal wound in his back, which caused his death.

We find the fourth assignment of alleged error well founded. The circumstance of abuse of superior strength, qualifying the crime of murder, which the trial court found to have been proven, has not been established beyond a reasonable doubt. In the case of United States vs. Devela (3 Phil., 625), this court said that "the mere fact that the number of the assailants is superior to that of those attacked by them is not sufficient to constitute the aggravating circumstance of abuse of superiority." In this case we have the photographs of the body of the deceased (Exhibits D and D-1) showing that he had a strong constitution: but there is no evidence of the physical constitution of the accused Epifanio Diokno and Roman Diokno. Therefore, we cannot determine whether or not said accused were physically stronger than the deceased and whether or not they abused such superiority.

Neither does this court find the existence of the other circumstance qualifying murder, that is, evident premeditation, proven beyond a reasonable doubt because, even assuming that both the accused went to San Pablo, Laguna, each carrying the knife used by him in attacking Yu Hiong, it being customary for the people of said province to carry it, it cannot be inferred with certainty from the mere fact that they carried knives that their intention in going to San Pablo was to look for the deceased in order to kill him. In order that premeditation may be considered either as an aggravating circumstance or as a qualifying circumstance, it must be evident, that is, the intention to kill must be manifest and it must have been planned in the mind of the offender and carefully meditated. It is not enough that it arose at the moment of the aggression.


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Therefore, there having been neither abuse of superior strength nor evident premeditation, the crime committed by the accused is simple homicide.lâwphi1.nêt

The presence of the fifth mitigating circumstance of article 13 of the Revised Penal Code, that is, immediate vindication of a grave offense to said accused, may be taken into consideration in favor of the two accused, because although the elopement took place on January 4, 1935, and the aggression on the 7th of said month and year, the offense did not cease while Salome's whereabouts remained unknown and her marriage to the deceased unlegalized. Therefore, there was no interruption from the time the offense was committed to the vindication thereof. Our opinion on this point is based on the fact that the herein accused belong to a family of old customs to whom the elopement of a daughter with a man constitutes a grave offense to their honor and causes disturbance of the peace and tranquility of the home and at the same time spreads uneasiness and anxiety in the minds of the members thereof.

The presence of the sixth mitigating circumstance of said article 13, consisting in having acted upon an impulse so powerful as naturally to have produced passion or ofuscation, may also be taken into consideration in favor of the accused. The fact that the accused saw the deceased run upstairs when he became aware of their presence, as if he refused to deal with them after having gravely offended them, was certainly a stimulus strong enough to produce in their mind a fit of passion which blinded them and led them to commit the crime with which they are charged, as held by the Supreme Court of Spain in similar cases in its decisions of February 3, 1888, July 9, 1898, February 8, 1908, May 25, 1910, July 3, 1909, and in other more recent ones.

The seventh circumstance of article 13 of the Revised Penal Code, consisting in having surrendered himself immediately to the agents of persons in authority, should also be taken into consideration in favor of the accused Epifanio Diokno.

In view of the foregoing considerations, this court concludes that the accused are guilty beyond a reasonable doubt of the crime of homicide defined and punished in article 249 of the Revised Penal Code, the penalty prescribed therein being reclusion temporal in its full extent. Three mitigating circumstances must be taken into consideration in favor of the accused Epifanio Diokno and two in favor of the accused Roman Diokno, with no aggravating circumstance, thus authorizing the imposition of the penalty next lower to that prescribed by law (reclusion temporal in its full extent), or prision mayor in its full extent, in the period that this court deems applicable, which is the medium period in this case, in accordance with the provisions of article 64, rule 5, that is eight years and one day of prision mayor.

Both accused should be granted the benefits of the indeterminate sentence provided in Act No. 4103, as amended by Act No. 4225, which prescribes a penalty the minimum of which shall be taken from that next lower to prision mayor, or prision correccional of from six months and one day to six years. Taking into account the circumstances of the case, the indeterminate penalty to which each of said accused must be sentenced is fixed at from two years and one day of prision correccional to eight years and one day of prision mayor, crediting each with one-half of the time during which they have undergone preventive imprisonment (art. 29, Revised Penal Code).

Wherefore, this court declares the accused Epifanio Diokno and Roman Diokno guilty of the crime of homicide and sentences each of them to an indeterminate penalty from two years and one day of prision correccional to eight years and one day of prision mayor, crediting them with one-half of the time during which they have undergone preventive imprisonment, and to indemnify the heirs of the deceased in the sum of P1,000, with the costs of both instances. So ordered.


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Manila

SECOND DIVISION

G.R. No. 96444 June 23, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

LEANDRO PAJARES y FLORENTINO, accused-appellant.

PARAS, J.:

This is an appeal from the decision * of the Regional Trial Court, NCJR, Branch VIII, Manila dated October 25, 1990 in Criminal Case No. 85-40579 entitled "People of the Philippines v. Leandro Pajares y Florentino" convicting herein appellant Pajares of the crime of Murder.

Herein appellant was charged with the aforementioned crime in an Information which reads as follows:

That on or about the 11th day of October, 1985, at night time, purposely sought to insure and better accomplish his criminal design, in the City of Manila. Philippines, the said accused, conspiring and confederating together with five (5) others whose true names, real Identities, and present whereabouts are still unknown and helping one another, did then and there willfully, unlawfully and feloniously, with intent to kill, evident premeditation, and treachery, attack, assault. and use personal violence upon one DIOSDADO VIOJAN Y SABAYAN, by then and there mauling him and hitting him with a baseball bat at the back of the head, a vital part of the body, thereby inflicting upon the said DIOSDADO VIOJAN Y SABAYAN a club wound on the head which was the direct and immediate cause of his death.

Contrary to law. (Original Records of Criminal Case No, 85-40579, p. 1)

He was likewise charged with the crime of Frustrated Homicide in an Information which reads as follows:

That on or about the 11th day of October, 1985, at night time, purposely sought to insure and better accomplish his criminal design, in the City of Manila, Philippines, the said accused, conspiring and confederating together with five (5) others whose true names, real identities, and present whereabouts are still unknown, and helping one another, with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and use personal violence upon one RENATO PEREZ Y RUIDERA, by mauling and hitting him with a baseball bat at


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the back, a vital part of the body, thereby inflicting upon him a club wound at the back which is necessarily mortal and fatal, thus performing all the acts of execution which would have produced the crime of homicide, as a consequence, but nevertheless did not produce it by reason of causes independent of the will of the accused, that is, because of the timely and able medical attendance rendered upon the said RENATO PEREZ RUIDERA which prevented his death.

Contrary to law (Original Records of Criminal Case No. 85-40580, p. 1)

Appellant Pajares pleaded not guilty to both charges (Original Records of Criminal Case No. 85-40579, p. 5; Original Records of Criminal Case No. 85-40580, p. 8). Upon the petition of herein appellant that the two (2) cases be consolidated, a joint trial ensued.

The prosecution presented Renato R. Perez, Cpl. Benigno Dong, Salud Manguba, Pat. Conrado Bustillos, Dr. Norman Torres, Dr. Prospero Cabanayan, Rosita Viojan and Arlene Viojan as witnesses while only appellant Leandro Pajares took the witness stand for the defense.

Renato R. Perez, a resident of 1386-K Burgos St., Paco, Manila, is the same Renato Perez who is the victim in Criminal Case No. 85-40580 for Frustrated Homicide. He testified that at about 11:30 p.m. on October 11, 1985, he and the deceased Diosdado Viojan were on their way to a store located at Gomez St., Paco, Manila to buy something. They were walking abreast with each other, the deceased was at his right side and was a bit ahead of him, when appellant Pajares suddenly appeared from behind and hit Viojan with a baseball bat at the back of his head. The latter ran a short distance and fell down near the store of one Alex Blas. When Perez tried to help Viojan. he, too, was attacked by Pajares with the baseball bat hitting him at the back below the left shoulder. He then grappled with the appellant for the possession of the baseball bat but the latter's companions, namely: Rudy Dokling, Popoy, Inggo and Lauro Duado mauled him until he lost consciousness. He was brought to the Philippine General Hospital by Eugene Panibit and Joselito Perez where he was treated for the injuries he sustained (TSN, Hearing of January 7, 1986, pp. 4-23). He identified in court the baseball bat used by Pajares (TSN, Hearing of September 16, 1986, p. 36).

On cross examination, he averred that he has known appellant Pajares for less than a year and that although they both live in Zone 89, he and the deceased belonged to a group which is an adversary of the group of the accused (Ibid., pp. 39-41).

Cpl. Benigno Dong, of the Zamora Police Department Station No. 6, WPD, testified that he was on duty on October 12, 1985 when one Napoleon Gabawa sought their assistance regarding a killing incident that happened in Gomez Street, Paco, Manila. They went to the house of appellant Leandro Pajares at 1453 Gomez St., Paco, Manila and invited the latter and his brother to the station for questioning regarding the aforementioned incident. Pajares verbally admitted his participation in the incident (TSN, Hearing of March 11, 1986, p. 26). The incident was registered in the Police Blotter Entry (Exhibits "A" to "A-3", Original Records of Criminal Case No. 85-40579. pp. 30-33)

On cross examination, he admitted that he placed appellant Pajares under arrest after he verbally admitted that he was responsible for the death of Diosdado Viojan, but the booking sheet and arrest report has not been accomplished yet (TSN, Hearing of March 11, 1986, p 27).


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Salud Manguba, Forensic Chemist of the National, Bureau of Investigation, testified that she examined a baseball bat for the presence of blood upon the written request of Pat. Conrado Bustillos (Exhibit "C-1", Original Records of Criminal Case No. 85-40579, p. 69). In connection with the study she made, she submitted Biology Report No. B-85-1342 (Exhibit "C". Original Records of Criminal Case No. 85-40579, p. 68) that shows the absence of blood on the baseball bat (TSN, Hearing of June 23, 1986, pp. 30-32).

Pat. Conrado G. Bustillos, testified that relative to a telephone call he received from the Philippine General Hospital on October 12 1985 he went to the morgue of the said hospital to investigate a dead on arrival case of one Diosdado Viojan. A close examination of the body of the latter showed that he suffered a fracture at the back of the skull. Thereafter, he proceeded to the scene of the crime to make an ocular inspection where he was informed that there was another victim by the name Renato Perez. Pat. Bustillos further testified that Renato Perez was investigated at the Homicide Section and that the latter executed a sworn statement (Exhibit "F" Original Records of Criminal Case No, 85-40579, p 208) in relation to the incident. In the same manner, Roberto Pajares. brother of herein appellant was also investigated and who also executed a sworn statement (Exhibit "G", Ibid., p. 219) The alleged murder weapon, a baseball bat, was turned over to him by Cpl. Ben Macalindog (TSN, November 18, 1986, p. 46).

Dr. Norman Torres, a resident physician at the Philippine General Hospital, testified that on October 12, 1985, a certain Diosdado Viojan was brought to the emergency room of the Philippine General Hospital for head injury, left occipital region. The victim was in critical condition necessitating immediate surgery. He did not personally attend the operation but learned that the victim died while undergoing the surgery. Witness further averred that the injury could have been caused by a blunt instrument like a baseball bat (TSN, Hearing of December 2, 1986, p. 46).

Dr. Prospero Cabanayan, Legal Officer of the National Bureau of Investigation, testified that he conducted an autopsy on the body of Diosdado Viojan and in connection therewith submitted Autopsy Report No. N-85-2161 (Exhibit "L", Original Records on Criminal Case No. 85-40579, p. 224) indicating that the cause of death was "Hemorrhage, meningeal, severe, traumatic". He further testified that a single forceful blow against the head using a blunt instrument like a baseball bat could have caused the injury (TSN, Hearing of June 15, 1987, pp. 58-60).

Rosita S. Viojan, mother of the deceased Diosdado Viojan, testified that when her son died, she hired the services of Tree Amigos Funeral Parlor for P12,000.00 as evidenced by Official Receipt No. 10511 (Exhibits "P" and "Q", Original Records of Criminal Case No. 85-40579, pp. 228-229) (TSN, Hearing of February 23. 1988, p. 66).

Arlene Viojan, widow of Diosdado Viojan. testified that prior to the incident her husband was working with PEMCO earning about P500.00 a week. At the time of the incident, she was three (3) months on the family way. She gave birth to a baby girl and it was her parents-in-law who paid for the expenses during her delivery. At the moment, she is living with her parents (TSN, Hearing of April 4, 1988, p. 67).

Appellant Leandro Pajares y Florentino denied the allegations of the prosecution. He asserts that he knew the deceased Diosdado Viojan by the name Dado, having met him once at the store, and Renato Perez by the name Balat. At the time of the incident, he was inside the store of Alex Blas with about eight (8) other People watching television. Hence, he did not see who hit Diosdado Viojan and Renato Perez. After the commotion, upon the advise of Alex Blas, he went


Page | 25

home and slept. At about 3:30 in the morning of October 12, 1985, he was arrested inside their house. Without asking any question, he went with the arresting officers to the police station (TSN, Hearing of August 1, 1988, pp. 72-76).

At the police detachment, he was coerced to admit his participation in the crime since a gun was poked at him. He identified his signature at the Booking Sheet and Arrest Report (Exhibit "J", Original Records of Criminal Case No 85-40579, p. 222) but alleged that he signed the same without being allowed to read the contents thereof without the assistance of counsel and while being held at the collar at the back of his shirt. He likewise averred that during investigation the investigating policemen molested him like "pinipitik-pitik" his ears with rubber band or chopping his neck with karate chops (Ibid., pp. .77-78). He, however, admitted that even after several days he did not complain about what were done to him (Ibid., p. 128).

On cross examination, he testified that his house is about five (5) houses away from the store of Alex Blas, the scene of the crime (TSN, Hearing of August 22, 1983, pp. 90-91). He likewise denied any knowledge about any quarrel between his brother, Roberto Pajares and the deceased Diosdado Viojan (TSN, Hearing of September 19, 1988, p. 108).

As aforementioned, the trial court rendered a decision on October 25, 1990, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing considerations, judgment is hereby rendered finding herein accused LEANDRO PAJARES y FLORENTINO of 1433-B, Gomez St., Paco, Manila, GUILTY beyond reasonable doubt of the charges against him, as follows:

CRIM. CASE NO. 85-40579:

The Court finds accused GUILTY beyond reasonable doubt of the crime of Murder as defined and penalized by Art. 248, par, 1, Rev. Penal Code, and there being no modifying circumstance to consider, hereby sentences him to suffer imprisonment of RECLUSION PERPETUA with the accessory penalties of the law; to pay Arlene Viojan and her child the sum of: P30,000,00; P12,000.00 as funeral expenses; P15,000.00 as moral damages; and P10,000.00 as litigation expenses and attorney's fees; and finally the costs of the suit.

CRIM. CASE NO. 85-40580:

The Court finds accused GUILTY beyond reasonable doubt of the crime of Slight Physical Injuries as defined in par. 1, Art. 266 and penalized by Art. 27, both of the Rev. Penal Code, hereby sentencing him to an imprisonment of ONE (1) MONTH; and to pay the cost of suit.

Done in Manila, this 25th day of October, 1990.

SO ORDERED. (RTC Decision, Rollo, p. 38)

Hence this appeal.


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Appellant Pajares asserts that the trial court gravely erred in imposing the penalty of reclusion perpetua upon him. He avers that such a penalty is tantamount to a cruel, degrading or inhuman punishment which is prohibited by the Constitution. Appellant points out that hours before the clubbing incident, Roberto Pajares, appellant's younger brother, was mauled by the group of Diosdado Viojan as cited by the lower court referring to the entry in the Police Blotter and the sworn statement of Roberto Pajares. The mauling of the latter is a big insult and truly offending to the appellant and his family. Hence, the clubbing of Diosdado Viojan by herein appellant was a vindication of the grave offense committed against his family. a mitigating circumstance under paragraph 5 of Article 13 of the Revised Penal Code. Considering further that the appellant was just nineteen (19) years old at the time he committed the offense the penalty imposed by the court a quo should have been seventeen (17) years, four (4) months and one (1) day (Brief for the Appellant, Rollo, pp. 52-58).

The appeal is devoid of merit.

In convicting herein appellant of the crime of murder, qualified by treachery, the trial court relied heavily on the testimony of prosecution witness Renato Perez which it found to be credible. According to the lower court, the latter "gave his account on what was done to them by the accused and his companions in a simple, candid, straightforward manner" (RTC Decision. Rollo, p. 36).

It is doctrinally entrenched that the evaluation of the testimony of witnesses by the trial court is received on appeal with the highest respect because it is the trial court that has the opportunity to observe them on the stand and detect if they are telling the truth or lying in their teeth (People v. Santito, Jr., G.R. No. 91628, August 22, 1991 [201 SCRA 87]). The appellate court can only read in cold print the testimony of the witnesses which commonly is translated from the local dialect into English. In the process of converting into written form the statement of living human beings, not only fine nuances but a world of meaning apparent to the judge present, watching and listening, may escape the reader of the written translated words (People v. Arroyo, G.R. No. 99258, September 13, 1991 [201 SCRA 616]).

Appellant's sole defense is alibi. According to him, he was inside the store of Alex Blas, watching television, when the incident occurred, Alex Blas even advised him to go home so as not to be involved in the incident. However, the latter was not presented to corroborate appellant's testimony. Alibi is the weakest defense an accused can concoct. In order to prosper, it must be so convincing as to preclude any doubt that the accused could have been physically present at the place of the crime or its vicinity at the time of the commission (People v. Lacao, Sr., G.R. No. 94320, September 4. 1991 (201 SCRA 317]). In the case at bar, appellant was within the vicinity of the scene of the crime at the time of its commission.

Furthermore, appellant was positively identified by Renato Perez as the perpetrator of the crime. In the face of the clear and positive testimony of the prosecution witness regarding the participation of the accused in the crime, the accused's alibi dwindles into nothingness. The Positive identification of the accused by the witness as the perpetrator of the crime cannot be overcome by the mere denial of the accused. Such positive identification of the accused that he killed the victim establishes the guilt of the accused beyond moral certainty (People v Arroyo,supra).

The trial court correctly ruled that the crime was attended by treachery. There is treachery, the law says, when the offender adopts means, methods or forms in the execution of the felony


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which ensure its commission without risk to himself arising from the defense which the offended party might make (People v. Cuyo, G.R. No. 76211, April 30, 1991 [196 SCRA 447]). As found by the trial court, appellant Pajares hit Diosdado Viojan with a baseball bat from behind without any warning thereby precluding any possible retaliation from the victim.

Having established the guilt of herein appellant. the next question is whether or not the mitigating circumstance of immediate vindication of a grave offense can be appreciated in his favor. While it may be true that appellant's brother Roberto Pajares was mauled by the companions of the deceased at about 11:30 a.m. of October 11, 1985 as show in the entry in the Police Blotter (Exhibits "A" to "A-3", Original Records of Criminal Case No. 85-40579. pp. 30-33) and by appellant's brother himself (Exhibits "G", "Q" and "A" Nos. 7-9, Ibid., p. 219), it must be emphasized that there is a lapse of about ten (10) hours between said incident and the killing of Diosdado Viojan. Such interval of time was more than sufficient to enable appellant to recover his serenity (People v. Benito, G.R. No. L-32042, December 17, 1976 [74 SCRA 271]). Hence, the mitigating circumstance of immediate vindication of a grave offense cannot be appreciated in his favor.

IN VIEW OF THE FOREGOING, the decision appealed from is AFFIRMED with modification that the indemnity is increased to P50,000.00 in accordance with the policy of this Court on the matter.

SO ORDERED.


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Manila

FIRST DIVISION

G.R. No. 131839 January 30, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

ARANDE COLINA ADLAWAN @ RANDIE, accused-appellant.

YNARES-SANTIAGO, J.:

This is an appeal from the June 23, 1997 Decision1 of the Regional Trial Court of Mandaue City, Branch 28, in Criminal Case No. DU-3463, convicting accused-appellant of the crime of Murder and sentencing him to suffer the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years and one (1) day of reclusion temporal, as maximum; and to pay the heirs of the deceased the sum of P50,000.00 as death indemnity, P18,850.00 as actual damages and the costs.

The Information against accused-appellant reads:

That on or about the 15th day of November, 1992, in the City of Mandaue, Philippines, and within the jurisdiction of this Honorable Court, the aforenamed accused, with deliberate intent to kill, treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, and shot Nequito Ortizano with a revolver, thereby inflicting upon the latter mortal wound at his vital portion which caused his death soon thereafter.

CONTRARY TO LAW.2

Upon arraignment on March 31, 1997, accused-appellant pleaded not guilty.3 Thereafter, trial ensued.

The prosecution’s account of the antecedent facts are as follows: At dawn of November 15, 1992, the deceased, together with prosecution witnesses Benjamin Basubas and Quirino Cinco, and a certain Oliver Bonayan, were inside a fenced disco area in Sitio Oril, Mandaue City. At 2:00 a.m., Benjamin Basubas and Quirino Cinco were alerted by a commotion outside. When they rushed out, they saw the deceased raising his hands in front of accused-appellant, who was then in the company of Barangay Tanod Jerry Diaz and Jet Bonita. Likewise present was accused-appellant's father, Barangay Tanod Crispulo Adlawan, who was lying on the ground unconscious. Prosecution witnesses Benjamin Basubas and Quirino Cinco stood approximately one meter away from the deceased. All of a sudden, accused-appellant drew a gun from his waist, pointed it at the deceased, saying, "this is the one."4 He immediately fired the gun, hitting the deceased on the chest. The latter staggered toward the direction of Benjamin Basubas. He was able to hold on to a deaf-mute bystander, but fell on a shallow canal and landed on his belly with his head resting on the bank of the canal. Accused-appellant followed the deceased, turned the latter’s head and delivered a fatal shot hitting him above the right ear. Thereafter, accused-appellant surrendered the gun to a group of Barangay Tanod.5

http://www.lawphil.net/judjuris/juri2002/jan2002/gr_131839_2002.html#fnt1






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The Necropsy Report shows the postmortem findings and the cause of death of the victim, thus:

II. Pertinent Findings:

1. Gunshot Wound, Entrance, 0.5 cm. x 0.5 cm., located at the left parietal region 4 cm. above the right ear. The entrance wound has an inverted periphery. The bullet slug went thru the brain tissues and pierced thru the right parietal bone, where the slug was embedded and extracted at the scalp of the right parietal region.

2. Gunshot Wound, Entrance, 0.5 cm., located at the left supraclavicular at the medial part, with inverted periphery and contusion, collar. The bullet slug went downward and backwards hitting the upper lobes of the left and right lungs and exited thru the inferior border of the right scapula. The exit wound measures 1 cm. x 1 cm. with irregular everted edges.

Gunshot Wounds Number 1 and 2 resulted to a massive hemorrhage of the brain, the left and right lungs.

III. Cause of Death:

SHOCK, IRREVERSIBLE. Secondary to Massive Hemorrhage due to Multiple Gun Shot Wounds.6

On the other hand, the defense averred that at around 2:00 in the morning of November 15, 1992, while accused-appellant was inside a fenced disco area in Sitio Oril, Mandaue City, he heard somebody shouting and when he turned to the source of the disturbance, he saw his father, lying on the ground unconscious and with a bloodied face. Accused-appellant dashed to his father whom he thought was already dead. As he tried to lift him, he saw the deceased about 2 1/2 arm’s length away, holding a gun and told him, "Do you want to follow your father?"7Thereafter, accused-appellant lunged at the deceased, twisted his hand, forcing the muzzle of the gun to be pointed at the deceased’s chest. Suddenly, the gun went off, causing the deceased to fall in a canal. Accused-appellant was able to get hold of the gun and again fired at the deceased. Thereafter, he fled and hid in Manila8until January 23, 1997, when he finally decided to surrender to Mayor Alfredo M. Ouano and P/Supt. Rolando Borres.9

After trial, the court a quo rendered the assailed decision, the dispositive portion of which reads:

WHEREFORE, finding the herein accused ARANDE COLINA ADLAWAN @ RANDIE guilty beyond reasonable doubt for the crime of Murder, the said accused is hereby sentenced to undergo the indeterminate penalty by imprisonment of TEN (10) YEARS and ONE (1) DAY of prision mayor as minimum to SEVENTEEN (17) YEARS and ONE (1) DAY of reclusion temporal as maximum, with the accessories of the law, to indemnify the legal heirs of Nequito Ortizano the amount of Fifty Thousand (P50,000.00) Pesos by reason of his death, P18,850.00 as actual damages, and to pay the costs.

The accused, being a detention prisoner, shall be credited in the service of his sentence full time during which he has undergone preventive imprisonment.

SO ORDERED.10







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Hence, the instant appeal. Accused-appellant contends that:

I.

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF MURDER CONSIDERING THAT THE PROSECUTION FAILED TO ESTABLISH BEYOND REASONABLE DOUBT THE ATTENDANCE OF TREACHERY AND EVIDENT PREMEDITATION, AND THE RECORDS WILL SHOW THAT THE ACCUSED-APPELLANT ONLY OFFERED TO PLEAD GUILTY TO THE LESSER OFFENSE OF HOMICIDE.

II.

ANENT HERETO, THE COURT A QUO ERRED TO APPRECIATE (sic) THE ACCUSED-APPELLANT'S WILLINGNESS TO ENTER A PLEA OF GUILTY TO THE LESSER OFFENSE OF HOMICIDE AS A MITIGATING CIRCUMSTANCE.

III.

FURTHER TO THIS, ASSUMING THAT THE ACCUSED-APPELLANT IS INDEED GUILTY, THE COURT A QUO FAILED TO LIKEWISE APPRECIATE THE PRIVILEGED MITIGATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE/DEFENSE OF RELATIVE WHICH WAS SUFFICIENTLY ESTABLISHED.

IV.

IN APPRECIATING THE EVIDENCE ON RECORD, THE COURT A QUO ERRED IN ACCORDING GREATER WEIGHT AND CREDENCE TO THE TESTIMONIES OF THE PROSECUTION WITNESSES DESPITE THE FACT THAT THE SAME LACK CREDIBILITY AND CANNOT SUSTAIN A CONVICTION OF THE ACCUSED-APPELLANT.

V.

THE COURT A QUO ERRED IN AWARDING ACTUAL DAMAGES OF P18,850.00 TO THE HEIRS OF THE VICTIM NOTWITHSTANDING THAT THE SAME WERE NEVER DULY PROVEN.11

The appeal has no merit.

The task of assessing the conflicting versions of the defense and the prosecution is a matter best determined by the trial court who had the untrammeled opportunity to observe the witnesses’ demeanor and deportment on the witness stand, and therefore could better discern if such witnesses were telling the truth or not. Hence, unless the trial judge plainly overlooked certain facts of substance and value which, if considered, might affect the result of the case, his assessment on credibility of witnesses must be respected.12

After a careful and thorough review of the testimony of prosecution witnesses Benjamin Basubas and Quirino Cinco, we are convinced that the trial court did not err in giving credence




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to their declarations which were given in a direct, positive and straightforward manner. Moreover, the defense failed to show that the prosecution witnesses had improper motive to give a false narration of the circumstances surrounding the death of the deceased.

Likewise, the trial court correctly appreciated the qualifying circumstance of treachery. The essence of treachery is the sudden and unexpected attack, depriving the victim of any real chance to defend himself, thereby ensuring its commission without risk to the aggressor.13 At the time accused-appellant fired the first shot, the deceased was unarmed and had his hands raised. The deceased was therefore in no position to put up any defense such as would present a risk to accused-appellant. Moreover, the second shot fired by accused-appellant clearly foreclosed any doubt as to the attendance of treachery. When he turned the head of the deceased before he fired the second shot, accused-appellant was manifestly determined to have a better shot at the head of the deceased who was already lying helpless on the ground.

The privileged mitigating circumstance of incomplete self-defense cannot be appreciated in favor of accused-appellant. Unlawful aggression is a condition sine qua non for self-defense, whether complete or incomplete.14From the version of the prosecution, which the Court finds credible, the deceased did not commit any unlawful aggression towards accused-appellant. On the contrary, it was accused-appellant who was the aggressor when he shot the deceased who was unarmed and raising his hands.

In the same vein, the circumstance of incomplete defense of a relative is unavailing. It is settled that a person making a defense has no more right to attack an aggressor when the unlawful aggression has ceased.15 In the instant case, accused-appellant was not justified in attacking the deceased as the latter had his hands raised and was no longer poised to attack accused-appellant's father at the time he was shot.

Furthermore, the acts of the deceased immediately prior to the shooting did not constitute unlawful aggression. Unlawful aggression requires an actual, sudden and unexpected attack, or imminent danger thereof, and not merely a threatening or intimidating attitude. It must be such as to put in real peril the life of the person defending himself and not a mere imagined threat.16 In his direct testimony, accused-appellant did not categorically declare that the deceased was aiming the gun at him, or about to shoot him. Right after he allegedly heard the deceased’s remark, "Do you want to follow your father," he immediately lunged at him, twisted the gun toward his chest and fired. Clearly, therefore, there was no real peril to the life of accused-appellant. In People v. Escoto,17 we held that the mere apprehension that the supposed aggressor would shoot the person invoking self-defense is not justified. Failing to discharge the burden of proving unlawful aggression, accused-appellant's claim of incomplete self-defense cannot prosper.

The trial court, however, erred in appreciating the mitigating circumstance of voluntary surrender in favor of accused-appellant. To be considered a mitigating circumstance, voluntary surrender must be spontaneous. The conduct of the accused, and not his intention alone, after the commission of the offense, determines the spontaneity of the surrender. In People v. Mabuyo,18 we held that the surrender is not spontaneous where it took the accused almost nine months from the issuance of the warrant of arrest against him before he presented himself to the police authorities. With more reason then that we should not appreciate the mitigating circumstance of voluntary surrender in the case at bar since it took accused-appellant more than three years from the issuance of the warrant of arrest on September 23, 1993 before he finally decided to surrender on January 23, 1997.








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Nevertheless, the mitigating circumstance of passion or obfuscation should be appreciated to mitigate accused-appellant's criminal liability. The requisites of this mitigating circumstance are: (1) that there be an act, both unlawful and sufficient to produce such a condition of mind; and (2) said act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity.19

In the case at bar, accused-appellant thought his father whose face was bloodied and lying unconscious on the ground was dead. Surely, such a scenario is sufficient to trigger an uncontrollable burst of legitimate passion. His act, therefore, of shooting the deceased, right after learning that the latter was the one who harmed his father, satisfies the requisite of the mitigating circumstance of passion or obfuscation under Paragraph 6, Article 13 of the Revised Penal Code.

The penalty for Murder at the time of the commission of the offense is Reclusion Temporal in its maximum period to Death. There being one mitigating circumstance of passion or obfuscation, and no aggravating circumstance to offset it, the penalty shall be imposed in its minimum period, i.e., Reclusion Temporal maximum. Applying the Indeterminate Sentence Law, the maximum sentence shall be reclusion temporal in its maximum period and the minimum shall be taken from the next lower penalty, which is prision mayor maximum to reclusion temporalmedium. Hence, accused-appellant should be meted the penalty of ten (10) years and one (1) day of prision mayor as minimum to seventeen (17) years, four (4) months, and one (1) day of reclusion temporal as maximum.

As to accused-appellant's civil liability, we agree with the accused-appellant that the award of P18,850.00 as actual damages to the heirs of the deceased lacks basis. In lieu of actual damages, the heirs of the deceased are entitled to temperate damages in the amount of P10,000.00. Temperate damages are awarded where pecuniary loss is proved but not the amount thereof.20

Moral Damages in the amount of P50,000.00 should likewise be awarded for the emotional suffering of the deceased's heirs.21

The wife of the deceased testified that her husband, a 29-year old driver and spray man at the time of his death, was earning P100.00 daily.22 Using the American Expectancy Table of Mortality,23 the loss of his earning capacity should be computed as follows:

Net Earning Capacity

= Life expectancy [2/3 (80-age at death)]

x Gross Annual Income (GAI) (daily wage) x 261 (No. of working days in a yr.)]

- Living expenses (50% of GAI)

= 2/3 [(80-29)] x [(P100.00 x 261)] – 50%

= 2/3 (51) x P26,100.00 – 13,050.00

= 34 (P13,050.00

= P443,700.00

Hence accused-appellant should be ordered to pay the amount of P443,700.00 for the loss of earning capacity of the deceased.







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WHEREFORE, in view of all the foregoing, the Decision of the Regional Trial Court of Mandaue City, Branch 28, in Criminal Case No. DU-3463, convicting accused-appellant of the crime of Murder, is AFFIRMED with the MODIFICATION that accused-appellant is sentenced to suffer the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, and to pay in addition to the P50,000.00 death indemnity and the costs, the amount of P50,000.00 as moral damages; P10,000.00 as temperate damages and the amount of P443,700.00 for the loss of earning capacity of the deceased.

SO ORDERED.


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Manila

FIRST DIVISION

G.R. No. L-32243 April 15, 1988

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

EUGENIO CRISOSTOMO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Jose Ma. Abola for accused- appellant.

GANCAYCO, J.:

On Christmas day, December 25, 1967, between 6:00 and 7:00 o' clock in the evening at Sto. Rosario, Hagonoy, Bulacan, while Eugenio Crisostomo was passing near the house of Romeo Geronimo, he met the latter and invited him to have a drink in the place of a friend. Romeo declined the offer. Suddenly Eugenio rushed towards Romeo who was then standing near a store facing the street with his back towards Eugenio and shot him with a .22 caliber revolver at a distance of one (1) meter. The bullet entered about two (2) inches below the axilla (armpit) and came out on the right side of the chest about one (1) inch to the sternum. Romeo fell to the ground mortally wounded while Eugenio ran away. By-standers who were near the place such as Delfin Lopez, Ernesto Trillana Apolonio Santos and Manuel Tamayo and others who were all friends of both the victim and assailant came to the aid of the fallen victim and brought him to the Reyes Hospital at the Poblacion of Hagonoy where the doctor pronounced the victim dead upon arrival. Thus, they brought the victim's body to his home.

An information for murder was filed by the provincial fiscal in the Court of First Instance (CFI) of Bulacan against Eugenio Crisostomo charging him of the crime of murder as follows:

That on or about the 25th day of December, 1967, in the municipality of Hagonoy, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Eugenio Crisostomo, armed with a firearm and with intent to kill one Romeo Felipe Geronimo, did then and there unlawfully and feloniously, with evident premeditation and treachery, attack, assault and shoot the said Romeo Felipe Geronimo with the firearms he was then provided, hitting the latter on the chest, causing serious physical injuries thereon, which directly caused the death of the said Romeo Felipe Geronimo.

After the arraignment wherein accused entered a plea of not guilty and again during the trial, the accused signified his intention to withdraw his plea of not guilty to the charge of murder and to substitute it with a plea of guilty to a lesser charge of homicide and prayed that he be allowed to


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prove the mitigating circumstances. The same plea was made by the accused after the prosecution had rested its case but the fiscal did not agree. Thus the court denied the petition.

A decision was rendered on March 28, 1969 convicting the accused of the offense charged, the dispositive portion of which reads as follows:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the court finds the accused EUGENIO CRISOSTOMO guilty beyond reasonable doubt of the crime of MURDER, punished under Art. 248 of the Revised Penal Code, without any modifying circumstance and hereby sentences him to Reclusion Perpetua, with the accessories of the law: to indemnify the heirs of the deceased in the sum of TWELVE THOUSAND PESOS (P12,000.00); and to pay the costs.

Not satisfied therewith the accused now interposed this appeal alleging that the trial court committed the following assigned errors:

I

THE LOWER COURT ERRED IN FINDING THAT DEFENDANT- APPELLANT HAS ADMITTED HAVING KILLED ROMEO GERONIMO, INSTEAD OF LIMITING ITS FINDING TO THE TRUE EXTENT OF HIS ADMISSION.

II

THE LOWER COURT ERRED IN FINDING THAT THERE IS EVIDENCE BEYOND REASONABLE DOUBT THAT DEFENDANT-APPELLANT KILLED ROMEO GERONIMO, INSTEAD OF FINDING THAT NO EVIDENCE HAD BEEN PRESENTED AS TO THE ACTUAL CAUSE OF DEATH, THERE HAVING BEEN NO AUTOPSY PERFORMED ON THE BODY OF ROMEO GERONIMO.

III

THE LOWER COURT ERRED IN FINDING THAT DEFENDANT- APPELLANT HAD ACTED WITH TREACHERY.

IV

THE LOWER COURT ERRED IN NOT FINDING THAT DEFENDANT- APPELLANT IS ENTITLED TO THE MITIGATING CIRCUMSTANCE OF DRUNKENNESS.

V

THE LOWER COURT ERRED IN NOT APPRECIATING IN FAVOR OF APPELLANT THE MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER.

VI


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THE LOWER COURT ERRED IN NOT APPRECIATING DEFENDANT-APPELLANT'S OFFER TO PLEAD GUILTY TO THE CHARGE OF HOMICIDE (THE TRUE CRIME COMMITTED IF ONE HAD IN FACT BEEN COMMITTED AS A MITIGATING CIRCUMSTANCE.

VII

THE LOWER COURT ERRED IN NOT CREDITING DEFENDANT-APPELLANT WITH THE PRIVILEGED MITIGATING CIRCUMSTANCE OF PRESENCE OF TWO ORDINARY MITIGATING CIRCUMSTANCES WITHOUT THE PRESENCE OF ANY AGGRAVATING CIRCUMSTANCE.

Under the first assigned error appellant claims that the trial court erred in finding that he admitted having killed the victim.

Testifying in his defense the appellant claims that at the time of the incident when he saw the victim he played a joke on him by drawing his gun from his waist and pointing the same to the victim but the gun suddenly went off, its bullet hitting the victim. Taken by surprise he fled.

No doubt from the said version of the appellant he effectively admitted having shot the victim Romeo Geronimo. In fact he fled from the scene of the crime upon realizing the gravity of what he had committed. It is clear that it was that single shot that felled the victim which was the immediate cause of his death.

Indeed, during the trial and as late as after the prosecution had rested its case, the appellant offered to withdraw his plea of not guilty and substitute it with a plea of guilty of the lessor offense of homicide but the prosecution refused to agree with his proposal.

Under the second assigned error the appellant claims that as no autopsy was performed on the body of the victim the prosecution has not established the actual cause of death of the victim. He contends that the death certificate of the victim (Exhibit A) to which he offered no objection is admissible only to establish the fact of death not the cause of the death of the victim. He further avers that the testimony of Dr. Juan Santos who examined the body of the victim but did not perform an autopsy shows that he did not qualify as an expert witness; and even if he were an expert witness there was no basis for him to render an opinion as to the cause of death of the victim. Further, appellant alleges that Dr. Santos mentioned two (2) wounds of different sizes but otherwise with exactly identical characteristics from which the possibility may be deduced that the victim may have been shot twice, the second time by a person other than the appellant.

These arguments are devoid of merit.

Dr. Santos, who was then the municipal health officer of Hagonoy, Bulacan, categorically testified that the cause of death of the deceased was a through and through gunshot wound which was caused by a bullet. 1 Although he may not be an expert witness, as a physician and health officer he is certainly qualified to give an opinion as to the cause of death of the victim. He externally examined the body of the deceased on the same night of the incident, and found no other sign of external violence except the shot wound. 2 Under such circumstances, one need not be an expert to render an opinion that the said gunshot wound was the cause of death of the victim.


Page | 37

Contrary to the contention of the appellant, Dr. Santos pointed out the difference between the two (2) wounds on the body of the victim in that the left axilla wound was only 2.5 milimeters, while the right chest wound was 8 milimeters in diameter; that the former was round while the latter was oval; and that the former was deep while the latter was shallower He denied that the wounds were of identical appearance. 3 Dr. Santos emphasized that the left axilla wound is the point of entry of the bullet while the right chest wound is its point of exit and that the said wounds were caused by one bullet. The trajectory of the bullet was from the left axilla to the right chest. 4 The speculation of the appellant that the victim may have been shot twice is thus totally without basis.

The death certificate and the notes issued by Dr. Santos after his external examination of the body of the victim establish the cause of death of the deceased contrary to the contention of the appellant. 5 In this jurisdiction such death certificate and notes issued by said municipal health officer in the regular performance of his duty are prima facie evidence of the cause of death of the victim. 6

Moreover, the said death certificate is not only confirmed by the testimony of Dr. Santos and by two (2) eyewitnesses Manuel Tamayo and Delfin Lopez who stated that they saw the appellant rush at the victim and suddenly shoot him; that the victim fell down after he was hit; and that they brought him to the hospital but the doctor pronounced him dead on arrival. These two witnesses are mutual friends of both the deceased and the appellant so that their testimonies are free from any suspicion of bias or prejudice.

The appellant assails the findings of the court a quo that he acted with treachery in the commission of the offense as a third assigned error. He contends that while it may be true that he suddenly attacked the victim, it does not appear that he had consciously adopted the mode of attack intended to facilitate the perpetuation of the offense without risk to himself. In fact appellant claims that he was drunk and as such he could not have reflected on the special means of the execution of the act.

There is treachery when the offender commits any of the crimes against the person, employing means, method 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. 7

The suddenness of the attack does not, of itself, suffice to support the findings of alevosia. 8 There must be evidence that the mode of attack was consciously adopted by the appellant to make it impossible or hard for the person attacked to defend himself or retaliate. 9

In the present case, the appellant admitted that he had a previous altercation with the victim wherein he was hit by the deceased with a bottle because of certain differences they had in a billiard hall although he claimed to have resumed friendly relations with the victim thereafter. 10 Nevertheless, at the time of the incident, the appellant went through the motion of inviting the victim to join him in a drinking spree which the victim declined and then suddenly, without any ceremony, he shot the victim while his (the victim's) back was turned. The appellant used a gun, a lethal weapon to insure his design to kill the victim. He fired at him at a short distance aiming at a vital spot of his body. The victim was unarmed. From the environmental circumstances of the case, alevosia has been fully established. 11


Page | 38

Under the fourth assigned error appellant alleges that he is entitled to the mitigating circumstance of drunkenness. He asserts that he had been drinking from one o'clock in the afternoon on that Christmas day and that he had been drunk five (5) times in his entire life so that it is not habitual.

Under Article 15 of the Revised Penal Code, intoxication of the offender shall be taken into consideration as a mitigating circumstance when the offender committed a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to commit said felony. Otherwise when habitual or intentional, it shall be considered as an aggravating circumstance.

The allegation of the appellant that he was drunk when he committed the offense is self-serving and uncorroborated. Besides, appellant admitted that at that time he was only dizzy, 12 and that he was on the way to another drinking spree. Obviously he had not drunk enough. He remembers the details of the shooting, the time it started and ended, how much wine he imbibed and the persons who were with him. He realized the gravity of the offense he committed so he fled and hid from the authorities. He sought sanctuary in the chapel of Sto. Rosario, boarded a tricycle going to the poblacion and took a La Mallorca bus to Manila. All these are acts of a man whose mental capacity has not been impaired.

As the fifth assigned error appellant argues that he should be credited with the mitigating circumstance of voluntary surrender stating that although he hid himself from the authorities for ten (10) days, he voluntarily surrendered to the authorities thereafter upon the advice of his parents.

The requisites of voluntary surrender are: (a) that the offender had not actually been arrested; (b) that the offender surrendered himself to a person in authority or the latter's agent; and (c) that the surrender was voluntary. 13

The testimony of the appellant is not disputed by the prosecution that while in hiding, upon the advise of his parents, he voluntarily surrendered on January 4, 1968, so he was detained in the municipal jail of Hagonoy. 14The Court agrees that the appellant is entitled to this mitigating circumstance.

However, he cannot be credited with the mitigating circumstance of a plea of guilty to a lesser offense of the charge of homicide as invoked under the sixth assigned error. The requisites of the mitigating circumstance of voluntary plea of guilty are: (1) that the offender spontaneously confessed his guilt; (2) that the confession of guilt was made in open court, that is, before the competent court that is to try the case; and (3) that the confession of guilt was made prior to the presentation of evidence for the prosecution. 15

In the present case the appellant offered to enter a plea of guilty to the lesser offense of homicide only after some evidence of the prosecution had been presented. He reiterated his offer after the prosecution rested its case. This is certainly not mitigating. 16

In the light of the foregoing discussion, the seventh assigned error where the appellant claims that he should be entitled to the privileged mitigating circumstance is consequently without merit.

The offense committed is the crime of murder as the killing was qualified by treachery. 17 Considering that the commission of the offense is attended by the mitigating


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circumstance of voluntary surrender, applying the Indeterminate Sentence Law, the appellant is hereby imposed the indeterminate penalty of imprisonment of Ten (10) Years and One (1) Day of prision mayor as minimum to Seventeen (17) Years, Four (4) Months, and One (1) Day of reclusion temporal as maximum. The indemnity for the death of the victim is increased to P30,000.00.

WHEREFORE, with the above modification as to the penalty and indemnity, the decision appealed from is AFFIRMED in all other respects, with costs against accused-appellant.

SO ORDERED.


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[G.R. No. 140937. February 28, 2001]

EXUPERANCIO CANTA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O N

MENDOZA, J.:

This is a petition for review on certiorari of the decision, dated August 31, 1999, and

resolution, dated November 22, 1999, of the Court of Appeals,[1]

which affirmed the decision of

the Regional Trial Court, Branch 25, Maasin, Southern Leyte,[2]

finding petitioner Exuperancio

Canta guilty of violation of P.D. No. 533, otherwise known as the Anti-Cattle Rustling Law of

1974, and sentencing him to ten (10) years and one (1) day of prision mayor, as minimum, to

twelve (12) years, five (5) months, and eleven (11) days of reclusion temporal medium, as

maximum, and to pay the costs.

The information against petitioner alleged:

That on or about March 14, 1986, in the municipality of Malitbog, province of Southern Leyte,

Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with

intent to gain, did then and there, willfully, unlawfully and feloniously, take, steal and carry

away one (1) black female cow belonging to Narciso Gabriel valued at Three Thousand Pesos

(P3,000.00) without the knowledge and consent of the aforesaid owner, to his damage and

prejudice in the amount aforestated.

CONTRARY TO LAW.[3]

The prosecution established the following facts:

Narciso Gabriel acquired from his half-sister Erlinda Monter a cow, subject of the case,

upon its birth on March 10, 1984. The cow remained under the care of Erlinda Monter for

sometime. Subsequently, Narciso gave the care and custody of the animal, first, to Generoso

Cabonce, from October 24, 1984 to March 17, 1985; then to Maria Tura, from May 17, 1985 to

March 2, 1986; and lastly, to Gardenio Agapay, from March 3, 1986 until March 14, 1986 when

it was lost.[4]

It appears that at 5 o’clock in the afternoon of March 13, 1986, Agapay took the

cow to graze in the mountain of Pilipogan in Barangay Candatag, about 40 meters from his

hut. However, when he came back for it at past 9 o’clock in the morning of March 14, 1986,

Agapay found the cow gone. He found hoof prints which led to the house of Filomeno

Vallejos. He was told that petitioner Exuperancio Canta had taken the animal.[5]

Upon instructions of the owner, Gardenio and Maria Tura went to recover the animal from

petitioner’s wife, but they were informed that petitioner had delivered the cow to his father,

Florentino Canta, who was at that time barangay captain of Laca, Padre Burgos, Southern

Leyte. Accordingly, the two went to Florentino’s house. On their way, they met petitioner who

told them that if Narciso was the owner, he should claim the cow

himself. Nevertheless, petitioner accompanied the two to his father’s house, where Maria

http://sc.judiciary.gov.ph/jurisprudence/2001/feb2001/140937.htm#_edn1






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recognized the cow. As petitioner’s father was not in the house, petitioner told Gardenio and

Maria he would call them the next day so that they could talk the matter over with his father.

However, petitioner never called them. Hence, Narciso Gabriel reported the matter to the

police of Malitbog, Southern Leyte.[6]

As a result, Narciso and petitioner Exuperancio were

called to an investigation. Petitioner admitted taking the cow but claimed that it was his and that

it was lost on December 3, 1985. He presented two certificates of ownership, one dated March

17, 1986 and another dated February 27, 1985, to support his claim (Exh. B).[7]

Narciso presented a certificate of ownership issued on March 9, 1986, signed by the

municipal treasurer, in which the cow was described as two years old and female. On the reverse

side of the certificate is the drawing of a cow with cowlicks in the middle of the forehead,

between the ears, on the right and left back, and at the base of the forelegs and hindlegs (Exhs. C,

C-1 to 4).[8]

All four caretakers of the cow identified the cow as the same one they had taken care

of, based on the location of its cowlicks, its sex, and its color. Gardenio described the cow as

black in color, with a small portion of its abdomen containing a brownish cowlick, a cowlick in

the middle of the forehead, another at the back portion between the two ears, and four cowlicks

located near the base of its forelegs and the hindlegs.[9]

On the other hand, petitioner claimed he acquired the animal under an agreement which he

had with Pat. Diosdado Villanueva, that petitioner take care of a female cow of Pat. Villanueva

in consideration for which petitioner would get a calf if the cow produced two

offsprings. Petitioner claimed that the cow in question was his share and that it was born on

December 5, 1984. This cow, however, was lost on December 2, 1985. Petitioner said he

reported the loss to the police of Macrohon, Padre Burgos, and Malitbog, on December 3, 1985

(Exh. A and Exh. 1).[10]

Petitioner said that on March 14, 1986, his uncle Meno told him that he had seen the cow at

Pilipogan, under the care of Gardenio Agapay. He, therefore, went to Pilipogan with the mother

cow on March 14, 1986 to see whether the cow would suckle the mother cow. As the cow did,

petitioner took it with him and brought it, together with the mother cow, to his father Florentino

Canta.[11]

Maria Tura tried to get the cow, but Florentino refused to give it to her and instead told

her to call Narciso so that they could determine the ownership of the cow.[12]

As Narciso did not

come the following day, although Maria did, Florentino said he told his son to take the cow to

the Municipal Hall of Padre Burgos. Petitioner did as he was told. Three days later, Florentino

and Exuperancio were called to the police station for investigation.[13]

Petitioner presented a Certificate of Ownership of Large Cattle dated February 27,

1985[14]

and a statement executed by Franklin Telen, janitor at the treasurer’s office of the

municipality of Padre Burgos, to the effect that he issued a Certificate of Ownership of Large

Cattle in the name of petitioner Exuperancio Canta on February 27, 1985 (Exh. 5).[15]

The

statement was executed at the preliminary investigation of the complaint filed by petitioner

against Narciso.[16]

Petitioner’s Certificate of Ownership was, however, denied by the municipal treasurer, who

stated that petitioner Exuperancio Canta had no Certificate of Ownership of Large Cattle in the

municipality of Padre Burgos (Exhs. E, E-1 and 2).[17]

On the other hand, Telen testified that he

issued the Certificate of Ownership of Large Cattle to petitioner on March 24, 1986 but, at the

instance of petitioner, he (Telen) antedated it to February 27, 1985.[18]















Page | 42

On January 24, 1997, the trial court rendered its decision finding petitioner guilty of the

offense charged. In giving credence to the evidence for the prosecution, the trial court stated:

From the affidavits and testimonies of the complainant and his witnesses, it is indubitable that it

was accused Exuperancio Canta who actually took the cow away without the knowledge and

consent of either the owner/raiser/caretaker Gardenio Agapay.

That the taking of the cow by the accused was done with strategy and stealth considering that it

was made at the time when Gardenio Agapay was at his shelter-hut forty (40) meters away

tethered to a coconut tree but separated by a hill.

The accused in his defense tried to justify his taking away of the cow by claiming

ownership. He, however, failed to prove such ownership. Accused alleged that on February 27,

1985 he was issued a Certificate of Ownership of Large Cattle (Exh. 2-A) for his cow by

Franklin Telen, a janitor at the Office of the Municipal Treasurer of Padre Burgos, a neighboring

town. On rebuttal Franklin Telen denied in Court the testimony of the accused and even

categorically declared that it was only on March 24, 1986 that the accused brought the cow to the

Municipal Hall of Padre Burgos, when he issued a Certificate of Ownership of Large Cattle for

the cow, and not on February 27, 1985. Franklin Telen testified thus:

“Q. According to the defense, this Certificate of Ownership of Large Cattle was issued

by you on February 27, 1985. Is that correct?

A. Based on the request of Exuperancio, I antedated this.

(TSN, June 3, 1992, p. 7)”

The testimony of Franklin Telen was confirmed in open court by no less than the Municipal

Treasurer of Padre Burgos, Mr. Feliciano Salva. (TSN, September 29, 1992, pp. 5-8).

If accused Exuperancio Canta were the owner of the cow in question, why would he lie on its

registration? And why would he have to ask Mr. Franklin Telen to antedate its registry? It is

clear that accused secured a Certificate of Ownership of Large Cattle (Exh. 2-A) by feigning and

manipulation (Exhs. A & B) only after the act complained of in the instant case was committed

on March 14, 1986. His claim of ownership upon which he justifies his taking away of the cow

has no leg to stand on. Upon the other hand, the complainant has shown all the regular and

necessary proofs of ownership of the cow in question.[19]

The Court of Appeals affirmed the trial court’s decision and denied petitioner’s motion for

reconsideration. Hence, this petition. It is contended that the prosecution failed to prove beyond

reasonable doubt his criminal intent in taking the disputed cow.

First. Petitioner claims good faith and honest belief in taking the cow. He cites the

following circumstances to prove his claim:

1. He brought the mother cow to Pilipogan to see if the cow in question would suckle

to the mother cow, thus proving his ownership of it;



Page | 43

2. He compared the cowlicks of the subject cow to that indicated in the Certificate of

Ownership of Large Cattle issued on February 27, 1985 in his name, and found that

they tally;

3. He immediately turned over the cow to the barangay captain, after taking it, and later

to the police authorities, after a dispute arose as to its ownership; and

4. He filed a criminal complaint against Narciso Gabriel for violation of P. D. No. 533.

These contentions are without merit.

P.D. No. 533, §2(c) defines cattle-rustling as

. . . the taking away by any means, methods or scheme, without the consent of the owner/raiser,

of any of the abovementioned animals whether or not for profit or gain, or whether committed

with or without violence against or intimidation of any person or force upon things.

The crime is committed if the following elements concur: (1) a large cattle is

taken; (2) it belongs to another; (3) the taking is done without the consent of the owner; (4)

the taking is done by any means, methods or scheme; (5) the taking is with or without

intent to gain; and (6) the taking is accomplished with or without violence or intimidation

against person or force upon things.[20]

These requisites are present in this case. First, there is no question that the cow belongs to

Narciso Gabriel. Petitioner’s only defense is that in taking the animal he acted in good faith and

in the honest belief that it was the cow which he had lost. Second, petitioner, without the

consent of the owner, took the cow from the custody of the caretaker, Gardenio Agapay, despite

the fact that he knew all along that the latter was holding the animal for the owner,

Narciso. Third, petitioner falsified his Certificate of Ownership of Large Cattle by asking Telen

to antedate it prior to the taking to make it appear that he owned the cow in question. Fourth,

petitioner adopted “means, methods, or schemes” to deprive Narciso of his possession of his

cow, thus manifesting his intent to gain. Fifth, no violence or intimidation against persons or

force upon things attended the commission of the crime.

Indeed, the evidence shows that the Certificate of Ownership of Large Cattle which

petitioner presented to prove his ownership was falsified. Franklin Telen, the janitor in the

municipal treasurer’s office, admitted that he issued the certificate to petitioner 10 days after

Narciso’s cow had been stolen. Although Telen has previously executed a sworn statement

claiming that he issued the certificate on February 27, 1985, he later admitted that he antedated it

at the instance of petitioner Exuperancio Canta, his friend, who assured him that the cow was

his.[21]

Telen’s testimony was corroborated by the certification of the municipal treasurer of Padre

Burgos that no registration in the name of petitioner was recorded in the municipal

records. Thus, petitioner’s claim that the cowlicks found on the cow tally with that indicated on

the Certificate of Ownership of Large Cattle has no value, as this same certificate was issued

after the cow had been taken by petitioner from Gardenio Agapay. Obviously, he had every

opportunity to make sure that the drawings on the certificate would tally with that existing on the

cow in question.




Page | 44

The fact that petitioner took the cow to the barangay captain and later to the police

authorities does not prove his good faith. He had already committed the crime, and the barangay

captain to whom he delivered the cow after taking it from its owner is his own father. While the

records show that he filed on April 30, 1986 a criminal complaint against Narciso Gabriel, the

complaint was dismissed after it was shown that it was filed as a countercharge to a complaint

earlier filed on April 16, 1986 against him by Narciso Gabriel.

Petitioner says that he brought a mother cow to see if the cow in question would suckle to

the mother cow. But cows frequently attempt to suckle to alien cows.[22]

Hence, the fact that the

cow suckled to the mother cow brought by petitioner is not conclusive proof that it was the

offspring of the mother cow.

Second. Petitioner contends that even assuming that his Certificate of Ownership is “not in

order,” it does not necessarily follow that he did not believe in good faith that the cow was

his. If it turned out later that he was mistaken, he argues that he committed only a mistake of

fact but he is not criminally liable.

Petitioner’s Certificate of Ownership is not only “not in order.” It is fraudulent, having been

antedated to make it appear it had been issued to him before he allegedly took the cow in

question. That he obtained such fraudulent certificate and made use of it negates his claim of

good faith and honest mistake. That he took the cow despite the fact that he knew it was in the

custody of its caretaker cannot save him from the consequences of his act.[23]

As the Solicitor

General states in his Comment:

If petitioner had been responsible and careful he would have first verified the identity and/or

ownership of the cow from either Narciso Gabriel or Gardenio Agapay, who is petitioner’s

cousin (TSN, 9/12/91, p. 26). Petitioner, however, did not do so despite the opportunity and

instead rushed to take the cow. Thus, even if petitioner had committed a mistake of fact he is not

exempted from criminal liability due to his negligence.[24]

In any event, petitioner was not justified in taking the cow without the knowledge and

permission of its owner. If he thought it was the cow he had allegedly lost, he should have

resorted to the court for the settlement of his claim. Art. 433 of the Civil Code provides that

“The true owner must resort to judicial process for the recovery of the property.” What petitioner

did in this case was to take the law in his own hands.[25]

He surreptitiously took the cow from the

custody of the caretaker, Gardenio Agapay, which act belies his claim of good faith.

For the foregoing reasons, we hold that the evidence fully supports the finding of both the

trial court and the Court of Appeals that accused-appellant is guilty as charged. There is

therefore no reason to disturb their findings.

However, the decision of the Court of Appeals should be modified in two respects.

First, accused-appellant should be given the benefit of the mitigating circumstance

analogous to voluntary surrender. The circumstance of voluntary surrender has the following

elements: (1) the offender has not actually been arrested; (2) the offender surrenders to a person

in authority or to the latter’s agent; and (3) the surrender is voluntary.[26]

In the present case,

petitioner Exuperancio Canta had not actually been arrested. In fact, no complaint had yet been

filed against him when he surrendered the cow to the authorities. It has been repeatedly held that







Page | 45

for surrender to be voluntary, there must be an intent to submit oneself unconditionally to the

authorities, showing an intention to save the authorities the trouble and expense that his search

and capture would require.[27]

In petitioner’s case, he voluntarily took the cow to the municipal

hall of Padre Burgos to place it unconditionally in the custody of the authorities and thus saved

them the trouble of having to recover the cow from him. This circumstance can be considered

analogous to voluntary surrender and should be considered in favor of petitioner.

Second, the trial court correctly found petitioner guilty of violation of §2(c) of P. D. No.

533, otherwise known as the Anti-Cattle Rustling Law of 1974. However, it erred in imposing

the penalty of 10 years and 1 day of prision mayor, as minimum, to 12 years, 5 months and 11

days of reclusion temporal medium, as maximum. The trial court apparently considered P. D.

No. 533 as a special law and applied §1 of the Indeterminate Sentence Law, which provides that

“if the offense is punished by any other law, the court shall sentence the accused to an

indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said

law and the minimum shall not be less than the minimum term prescribed by the same.”

However, as held in People v. Macatanda,[28]

P. D. No. 533 is not a special law. The penalty

for its violation is in terms of the classification and duration of penalties prescribed in the

Revised Penal Code, thus indicating that the intent of the lawmaker was to amend the Revised

Penal Code with respect to the offense of theft of large cattle. In fact, §10 of the law provides:

The provisions of Articles 309 and 310 of Act No. 3815, otherwise known as the Revised Penal

Code, as amended, pertinent provisions of the Revised Administrative Code, as amended, all

laws, decrees, orders, instructions, rules and regulations which are inconsistent with this Decree

are hereby repealed or modified accordingly.

There being one mitigating circumstance and no aggravating circumstance in the

commission of the crime, the penalty to be imposed in this case should be fixed in its minimum

period. Applying the Indeterminate Sentence Law, in relation to Art. 64 of the Revised Penal

Code, petitioner should be sentenced to an indeterminate penalty, the minimum of which is

within the range of the penalty next lower in degree, i. e., prision correccional maximum

to prision mayor medium, and the maximum of which is prision mayor in its maximum period.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED, with the modification

that petitioner Exuperancio Canta is hereby SENTENCED to suffer a prison term of four (4)

years and two (2) months ofprision correccional maximum, as minimum, to ten (10) years and

one (1) day of prision mayor maximum, as maximum.

SO ORDERED.



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