Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-5272             March 19, 1910

THE UNITED STATES, plaintiff-appellee, vs.AH CHONG, defendant-appellant.

Gibb & Gale, for appellant. Attorney-General Villamor, for appellee.

CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused himself, because from the very nature of these facts and from the circumstances surrounding the incident upon which these proceedings rest, no other evidence as to these facts was available either to the prosecution or to the defense. We think, however, that, giving the accused the benefit of the doubt as to the weight of the evidence touching those details of the incident as to which there can be said to be any doubt, the following statement of the material facts disclose by the record may be taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy or muchacho. "Officers' quarters No. 27" as a detached house situates some 40 meters from the nearest building, and in August, 19087, was occupied solely as an officers' mess or club. No one slept in the house except the two servants, who jointly occupied a small room toward the rear of the building, the door of which opened upon a narrow porch running along the side of the building, by which communication was had with the other part of the house. This porch was covered by a heavy growth of vines for its entire length and height. The door of the room was not furnished with a permanent bolt or lock, and occupants, as a measure of security, had attached a small hook or catch on the inside of the door, and were in the habit of reinforcing this somewhat insecure means of fastening the door by placing against it a chair. In the room there was but one small window, which, like the door, opened on the porch. Aside from the door and window, there were no other openings of any kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night, was suddenly awakened by some trying to force open the door of the room. He sat up in bed and called out twice, "Who is there?" He heard no answer and was convinced by the noise at the door that it was being pushed open by someone bent upon forcing his way into the room. Due to the heavy growth of vines along the front of the porch, the room was very dark, and the defendant, fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the room, I will kill you." At that moment he was struck just above the knee by the edge of the chair which had been placed against the door. In the darkness and confusion the defendant thought that the blow had been inflicted by the person who had forced the door open, whom he supposed to be a burglar, though in the light of after events, it is probable that the chair was merely thrown back into the room by the sudden opening of the door against which it rested. Seizing a common kitchen knife which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps in a desperately wounded condition, followed by the defendant, who immediately recognized him in the moonlight. Seeing that Pascual was wounded, he called to his employers who slept in the next house, No. 28, and ran back to his room to secure bandages to bind up Pascual's wounds.

There had been several robberies in Fort McKinley not long prior to the date of the incident just described, one of which took place in a house in which the defendant was employed as cook; and as defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his personal protection.

The deceased and the accused, who roomed together and who appear to have on friendly and amicable terms prior to the fatal incident, had an understanding that when either returned at night, he should knock at the door and acquiant his companion with his identity. Pascual had left the house early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibañez, servants employed at officers' quarters No. 28, the nearest house to the mess hall. The three returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No. 28, Pascual going on to his room at No. 27. A few moments after the party separated, Celestino and Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man.

The defendant then and there admitted that he had stabbed his roommate, but said that he did it under the impression that Pascual was "a ladron"

because he forced open the door of their sleeping room, despite defendant's warnings.

No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frightened him by forcing his way into the room, refusing to give his name or say who he was, in order to make Ah Chong believe that he was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he died from the effects of the wound on the following day.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple homicide, with extenuating circumstances, and sentenced to six years and one day presidio mayor, the minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto, but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his lawful right of self-defense.

Article 8 of the Penal Code provides that —

The following are not delinquent and are therefore exempt from criminal liability:

xxx             xxx             xxx

4 He who acts in defense of his person or rights, provided there are the following attendant circumstances:

(1) Illegal aggression.

(2) Reasonable necessity of the means employed to prevent or repel it.

(3) Lack of sufficient provocation on the part of the person defending himself.

Under these provisions we think that there can be no doubt that defendant would be entitle to complete exception from criminal liability for the death of the victim of his fatal blow, if the intruder who forced open the door of his

room had been in fact a dangerous thief or "ladron," as the defendant believed him to be. No one, under such circumstances, would doubt the right of the defendant to resist and repel such an intrusion, and the thief having forced open the door notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would kill the intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a small room, with no means of escape, with the thief advancing upon him despite his warnings defendant would have been wholly justified in using any available weapon to defend himself from such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts and deliver the first blow.

But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the defendant nor his property nor any of the property under his charge was in real danger at the time when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or "ladron" as defendant believed he was repelling and resisting, and that there was no real "necessity" for the use of the knife to defend his person or his property or the property under his charge.

The question then squarely presents it self, whether in this jurisdiction one can be held criminally responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt from criminal liability if the facts were as he supposed them to be, but which would constitute the crime of homicide or assassination if the actor had known the true state of the facts at the time when he committed the act. To this question we think there can be but one answer, and we hold that under such circumstances there is no criminal liability, provided always that the alleged ignorance or mistake or fact was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a particular intent which under the law is a necessary ingredient of the offense charged (e.g., in larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the presumption of intent," and works an acquittal; except in those cases where the circumstances demand a conviction under the penal provisions touching criminal negligence; and in cases where, under the provisions of article 1 of the Penal Code one voluntarily committing a crime or misdeamor incurs criminal liability for any wrongful act committed by him, even though it be different from that which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)

The general proposition thus stated hardly admits of discussion, and the only question worthy of consideration is whether malice or criminal intent is an essential element or ingredient of the crimes of homicide and assassination as defined and penalized in the Penal Code. It has been said that since the definitions there given of these as well as most other crimes and offense therein defined, do not specifically and expressly declare that the acts constituting the crime or offense must be committed with malice or with criminal intent in order that the actor may be held criminally liable, the commission of the acts set out in the various definitions subjects the actor to the penalties described therein, unless it appears that he is exempted from liability under one or other of the express provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the general rule of legislative enactment in the United States, the definitions of crimes and offenses as set out in the Penal Code rarely contain provisions expressly declaring that malice or criminal intent is an essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code clearly indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and offense therein defined, in the absence of express provisions modifying the general rule, such as are those touching liability resulting from acts negligently or imprudently committed, and acts done by one voluntarily committing a crime or misdemeanor, where the act committed is different from that which he intended to commit. And it is to be observed that even these exceptions are more apparent than real, for "There is little distinction, except in degree, between a will to do a wrongful thing and indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again, "There is so little difference between a disposition to do a great harm and a disposition to do harm that one of them may very well be looked upon as the measure of the other. Since, therefore, the guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and since this disposition is greater or less in proportion to the harm which is done by the crime, the consequence is that the guilt of the crime follows the same proportion; it is greater or less according as the crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done, having proceeded from a corrupt mid, is to be viewed the same whether the corruption was of one particular form or another.

Article 1 of the Penal Code is as follows:

Crimes or misdemeanors are voluntary acts and ommissions punished by law.

Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall appear.

An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though the wrongful act committed be different from that which he had intended to commit.

The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this article, say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that without intention (intention to do wrong or criminal intention) there can be no crime; and that the word "voluntary" implies and includes the words "con malicia," which were expressly set out in the definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as Pacheco insists, their use in the former code was redundant, being implied and included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from criminal responsibility when the act which was actually intended to be done was in itself a lawful one, and in the absence of negligence or imprudence, nevertheless admits and recognizes in his discussion of the provisions of this article of the code that in general without intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by Viada are more apparent than real.

Silvela, in discussing the doctrine herein laid down, says:

In fact, it is sufficient to remember the first article, which declared that where there is no intention there is no crime . . . in order to affirm, without fear of mistake, that under our code there can be no crime if there is no act, an act which must fall within the sphere of ethics if there is no moral injury. (Vol. 2, the Criminal Law, folio 169.)

And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence of May 31, 1882, in which it made use of the following language:

It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from the operation of the will and an intent to cause the injury which may be the object of the crime.

And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in the parochial church, there can be no crime because of the lack of the necessary element or criminal intention, which characterizes every action or ommission punished by law; nor is he guilty of criminal negligence."

And to the same effect in its sentence of December 30, 1896, it made use of the following language:

. . . Considering that the moral element of the crime, that is, intent or malice or their absence in the commission of an act defined and punished by law as criminal, is not a necessary question of fact submitted to the exclusive judgment and decision of the trial court.

That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various crimes and misdemeanors therein defined becomes clear also from an examination of the provisions of article 568, which are as follows:

He who shall execute through reckless negligence an act that, if done with malice, would constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum degree, to prision correccional in its minimum degrees if it shall constitute a less grave crime.

He who in violation of the regulations shall commit a crime through simple imprudence or negligence shall incur the penalty of arresto mayor in its medium and maximum degrees.

In the application of these penalties the courts shall proceed according to their discretion, without being subject to the rules prescribed in article 81.

The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to or less than those contained in the first paragraph thereof, in which case the courts shall apply the next one thereto in the degree which they may consider proper.

The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent," and the direct inference from its provisions is that the commission of the acts contemplated therein, in the absence of malice (criminal intent), negligence, and imprudence, does not impose any criminal liability on the actor.

The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word "willful" as used in English and American statute to designate a form of criminal intent. It has been said that while the word "willful" sometimes means little more than intentionally or designedly, yet it is more frequently understood to extent a little further and approximate the idea of the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case it was said to mean, as employed in a

statute in contemplation, "wantonly" or "causelessly;" in another, "without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other words, corruptly." In English and the American statutes defining crimes "malice," "malicious," "maliciously," and "malice aforethought" are words indicating intent, more purely technical than "willful" or willfully," but "the difference between them is not great;" the word "malice" not often being understood to require general malevolence toward a particular individual, and signifying rather the intent from our legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)

But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of the various modes generally construed to imply a criminal intent, we think that reasoning from general principles it will always be found that with the rare exceptions hereinafter mentioned, to constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with numerous citations from the decided cases, thus forcely present this doctrine:

In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In controversies between private parties the quo animo with which a thing was done is sometimes important, not always; but crime proceeds only from a criminal mind. So that —

There can be no crime, large or small, without an evil mind. In other words, punishment is the sentence of wickedness, without which it can not be. And neither in philosophical speculation nor in religious or mortal sentiment would any people in any age allow that a man should be deemed guilty unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it can not exists. We find this doctrine confirmed by —

Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea, "the act itself does not make man guilty unless his intention were so;" Actus me incito factus non est meus actus, "an act done by me against my will is not my act;" and others of the like sort. In this, as just said, criminal jurisprudence differs from civil. So also —

Moral science and moral sentiment teach the same thing. "By reference to the intention, we inculpate or exculpate others or ourselves without any respect to the happiness or misery actually

produced. Let the result of an action be what it may, we hold a man guilty simply on the ground of intention; or, on the dame ground, we hold him innocent." The calm judgment of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance takes the place of justice, every guard around the innocent is cast down. But with the return of reason comes the public voice that where the mind is pure, he who differs in act from his neighbors does not offend. And —

In the spontaneous judgment which springs from the nature given by God to man, no one deems another to deserve punishment for what he did from an upright mind, destitute of every form of evil. And whenever a person is made to suffer a punishment which the community deems not his due, so far from its placing an evil mark upon him, it elevates him to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in justification of what has the appearance of wrong, with the utmost confidence that the plea, if its truth is credited, will be accepted as good. Now these facts are only the voice of nature uttering one of her immutable truths. It is, then, the doctrine of the law, superior to all other doctrines, because first in nature from which the law itself proceeds, that no man is to be punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law excuses no man"), without which justice could not be administered in our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make their commission criminal without regard to the intent of the doer. Without discussing these exceptional cases at length, it is sufficient here to say that the courts have always held that unless the intention of the lawmaker to make the commission of certain acts criminal without regard to the intent of the doer is clear and beyond question the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has been said not to be a real departure from the law's fundamental principle that crime exists only where the mind is at fault, because "the evil purpose need not be to break the law, and if suffices if it is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.)

But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring mistake in fact to be dealt with otherwise that in strict accord with the principles of abstract justice. On the contrary, the maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact

is, in all cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability provided always there is no fault or negligence on his part; and as laid down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs.Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be determined by the circumstances as they appeared to him at the time when the mistake was made, and the effect which the surrounding circumstances might reasonably be expected to have on his mind, in forming the intent, criminal or other wise, upon which he acted.

If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts which will justify a killing — or, in terms more nicely in accord with the principles on which the rule is founded, if without fault or carelessness he does believe them — he is legally guiltless of the homicide; though he mistook the facts, and so the life of an innocent person is unfortunately extinguished. In other words, and with reference to the right of self-defense and the not quite harmonious authorities, it is the doctrine of reason and sufficiently sustained in adjudication, that notwithstanding some decisions apparently adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as they appear to him. If, without fault or carelessness, he is misled concerning them, and defends himself correctly according to what he thus supposes the facts to be the law will not punish him though they are in truth otherwise, and he was really no occassion for the extreme measures. (Bishop's New Criminal Law, sec. 305, and large array of cases there cited.)

The common illustration in the American and English textbooks of the application of this rule is the case where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his friends in a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by his friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one will doubt that if the facts were such as the slayer believed them to be he would be innocent of the commission of any crime and wholly exempt from criminal liability,

although if he knew the real state of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of homicide or assassination. Under such circumstances, proof of his innocent mistake of the facts overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes at the same time the presumption established in article 1 of the code, that the "act punished by law" was committed "voluntarily."

Parson, C.J., in the Massachusetts court, once said:

If the party killing had reasonable grounds for believing that the person slain had a felonious design against him, and under that supposition killed him, although it should afterwards appear that there was no such design, it will not be murder, but it will be either manslaughter or excusable homicide, according to the degree of caution used and the probable grounds of such belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)

In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:

A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched arms and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A, who has a club in his hand, strikes B over the head before or at the instant the pistol is discharged; and of the wound B dies. It turns out the pistol was loaded with powder only, and that the real design of B was only to terrify A. Will any reasonable man say that A is more criminal that he would have been if there had been a bullet in the pistol? Those who hold such doctrine must require that a man so attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded — a doctrine which would entirely take away the essential right of self-defense. And when it is considered that the jury who try the cause, and not the party killing, are to judge of the reasonable grounds of his apprehension, no danger can be supposed to flow from this principle. (Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here set out in full because the facts are somewhat analogous to those in the case at bar.

QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of his wife, without other light than reflected from the fire, and that the man with his back to the door was attending to the fire, there suddenly entered a person whom he did not see or know, who struck him one or two blows, producing a contusion on the shoulder, because of which he turned, seized the person and took from his the stick with which he had undoubtedly been struck, and gave the unknown person a blow, knocking him to the floor, and afterwards striking him another blow on the head, leaving the unknown lying on the floor, and left the house. It turned out the unknown person was his father-in-law, to whom he rendered assistance as soon as he learned his identity, and who died in about six days in consequence of cerebral congestion resulting from the blow. The accused, who confessed the facts, had always sustained pleasant relations with his father-in-law, whom he visited during his sickness, demonstrating great grief over the occurrence. Shall he be considered free from criminal responsibility, as having acted in self-defense, with all the circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch of the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient provocation, and that there did not exists rational necessity for the employment of the force used, and in accordance with articles 419 and 87 of the Penal Code condemned him to twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the accused, he was acquitted by the supreme court, under the following sentence: "Considering, from the facts found by the sentence to have been proven, that the accused was surprised from behind, at night, in his house beside his wife who was nursing her child, was attacked, struck, and beaten, without being able to distinguish with which they might have executed their criminal intent, because of the there was no other than fire light in the room, and considering that in such a situation and when the acts executed demonstrated that they might endanger his existence, and possibly that of his wife and child, more especially because his assailant was unknown, he should have defended himself, and in doing so with the same stick with which he was attacked, he did not exceed the limits of self-defense, nor did he use means which were not rationally necessary, particularly because the instrument with which he killed was the one which he took from his assailant, and was capable of producing death, and in the darkness of the house and the consteration which naturally resulted from such strong aggression, it was not given him to known or distinguish whether there was one or more assailants, nor the arms which they might bear, not that which they might accomplish, and considering that the lower court did not find from the accepted facts that there existed rational necessity for the means employed, and that it did not apply paragraph 4 of article 8 of the Penal Code, it

erred, etc." (Sentence of supreme court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .

QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the city, upon arriving at a point where there was no light, heard the voice of a man, at a distance of some 8 paces, saying: "Face down, hand over you money!" because of which, and almost at the same money, he fired two shots from his pistol, distinguishing immediately the voice of one of his friends (who had before simulated a different voice) saying, "Oh! they have killed me," and hastening to his assistance, finding the body lying upon the ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been the victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he retired from the place. Shall he be declared exempt in toto from responsibility as the author of this homicide, as having acted in just self-defense under the circumstances defined in paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not so find, but only found in favor of the accused two of the requisites of said article, but not that of the reasonableness of the means employed to repel the attack, and, therefore, condemned the accused to eight years and one day of prison mayor, etc. The supreme court acquitted the accused on his appeal from this sentence, holding that the accused was acting under a justifiable and excusable mistake of fact as to the identity of the person calling to him, and that under the circumstances, the darkness and remoteness, etc., the means employed were rational and the shooting justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone thrown against his window — at this, he puts his head out of the window and inquires what is wanted, and is answered "the delivery of all of his money, otherwise his house would be burned" — because of which, and observing in an alley adjacent to the mill four individuals, one of whom addressed him with blasphemy, he fired his pistol at one the men, who, on the next morning was found dead on the same spot. Shall this man be declared exempt from criminal responsibility as having acted in just self-defense with all of the requisites of law? The criminal branch of the requisites of law? The criminal branch of the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the requisites to exempt him from criminal responsibility, but not that of reasonable necessity for the means, employed, and condemned the accused to twelve months of prision correctional for the homicide committed. Upon appeal, the supreme court acquitted

the condemned, finding that the accused, in firing at the malefactors, who attack his mill at night in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of his person, property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.)

A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman struck the fatal blow alleged in the information in the firm belief that the intruder who forced open the door of his sleeping room was a thief, from whose assault he was in imminent peril, both of his life and of his property and of the property committed to his charge; that in view of all the circumstances, as they must have presented themselves to the defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising his legitimate right of self-defense; that had the facts been as he believed them to be he would have been wholly exempt from criminal liability on account of his act; and that he can not be said to have been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the facts, or in the means adopted by him to defend himself from the imminent danger which he believe threatened his person and his property and the property under his charge.

The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant acquitted of the crime with which he is charged and his bail bond exonerated, with the costs of both instance de oficio. So ordered.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-1477             January 18, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.JULIO GUILLEN, defendant-appellant.

Mariano A. Albert for appellant.Office of the Solicitor General Felix Bautista Angelo and Solicitor Francisco A. Carreon for appellee.

PER CURIAM, J.:

This case is before us for review of, and by virtue of appeal from, the judgment rendered by the Court of First Instance of Manila in case No. 2746, whereby Julio Guillen y Corpus, or Julio C. Guillen, is found guilty beyond reasonable doubt of the crime of murder and multiple frustrated murder, as charged in the information, and is sentenced to the penalty of death, to indemnify the of the deceased Simeon Valera (or Barrela) in the sum of P2,000 and to pay the costs.

Upon arraignment the accused entered a plea of not guilty to the charges contained in the information.

Then the case was tried in one of the branches of the Court of First Instance of Manila presided over by the honorable Buenaventura Ocampo who, after the submission of the evidence of the prosecution and the defense, rendered judgment as above stated.

In this connection it should be stated that, at the beginning of the trial and before arraignment, counsel de oficiofor the accused moved that the mental condition of Guillen be examined. The court, notwithstanding that it had found out from the answers of the accused to questions propounded to him in order to test the soundness of his mind, that he was not suffering from any mental derangement, ordered that Julio Guillen be confined for Hospital, there to be examined by medical experts who should report their findings accordingly. This was done, and, according to the report of the board of medical experts, presided over by Dr. Fernandez of the National Psychopathic Hospital, Julio Guillen was not insane. Said report (Exhibit L), under the heading "Formulation and Diagnosis," at pages 13 and 14, reads:

FORMULATION AND DIAGNOSIS

Julio C. Guillen was placed under constant observation since admission. There was not a single moment during his whole 24 hours daily, that he was not under observation.

The motive behind the commission of the crime is stated above. The veracity of this motivation was determined in the Narcosynthesis. That the narco-synthesis was successful was checked up the day after the test. The narco-synthesis proved not only reveal any conflict or complex that may explain a delusional or hallucinatory motive behind the act.

Our observation and examination failed to elicit any sign or symptom of insanity in Mr. Julio C. Guillen. He was found to be intelligent, always able to differentiate right from wrong, fully aware of the nature of the crime he committed and is equally decided to suffer for it in any manner or form.

His version of the circumstances of the crime, his conduct and conversation relative thereto, the motives, temptations and provocations that preceded the act, were all those of an individual with a sound mind.

On the other hand he is an man of strong will and conviction and once arriving at a decision he executes, irrespective of consequences and as in this case, the commission of the act at Plaza Miranda.

What is of some interest in the personality of Julio C. Guillen is his commission of some overt acts. This is seen not only in the present instance, but sometime when an employee in la Clementina Cigar Factory he engaged in a boxing bout Mr. Manzano, a Span-wanted to abuse the women cigar makers, and felt it his duty to defend them. One time he ran after a policeman with a knife in hand after being provoked to a fight several times. He even challenged Congressman Nueno to a fight sometime before when Mr. Nueno was running for a seat in the Municipal Board of the City of Manila, after hearing him deliver one of his apparently outspoken speeches.

All these mean a defect in his personality characterized by a weakness of censorship especially in relation to rationalization about the consequences of his acts.

In view of the above findings it is our considered opinion that Julio C. Guillen is not insane but is an individual with a personality defect which in Psychiatry is termed, Constitutional Psychopathic Inferiority.

Final Diagnosis

Not insane: Constitutional Psychopathic Inferiority, without psychosis.

In view of the above-quoted findings of the medical board, and notwithstanding the contrary opinion of one Dr. Alvarez, who was asked by the defense to give his opinion on the matter, the court ruled that Guillen, not being insane, could be tired, as he was tired, for the offenses he committed on the date in question.

THE FACTS

Upon careful perusal of the evidence and the briefs submitted by counsel for the accused, the Solicitor General and their respective memoranda, we find that there is no disagreement between the prosecution and the defense, as to the essential facts which caused the filing of the present criminal case against this accused. Those facts may be stated as follows:

On the dates mentioned in this decision, Julio Guillen y Corpus, although not affirmed with any particular political group, has voted for the defeated candidate in the presidential elections held in 1946. Manuel A. Roxas, the successful candidate, assumed the office of President of the Commonwealth and subsequently President of the President of the Philippine Republic. According to Guillen, he became disappointed in President Roxas for his alleged failure to redeem the pledges and fulfill the promises made by him during the presidential election campaign; and his disappointment was aggravated when, according to him, President Roxas, instead of looking after the interest of his country, sponsored and campaigned for the approval of the so-called "parity" measure. Hence he determined to assassinate the President.

After he had pondered for some time over the ways and means of assassinating President Roxas, the opportunity presented itself on the night of March 10, 1947, when at a popular meeting held by the Liberal Party at Plaza de Miranda, Quiapo, Manila attended by a big crowd, President Roxas, accompanied by his wife and daughter and surrounded by a number of ladies and gentlemen prominent in government and politics, stood on a platform erected for that purpose and delivered his speech expounding and trying to convince his thousand of listeners of the advantages to be gained by the Philippines, should the constitutional amendment granting American citizens the same rights granted to Filipino nationals be adopted.

Guillen had first intended to use a revolver for the accomplishment of his purpose, but having lost said firearm, which was duly licensed, he thought of two hand grenades which were given him by an American soldier in the early days of the liberation of Manila in exchange for two bottles of whisky. He had likewise been weighing the chances of killing President Roxas, either by going to Malacañan, or following his intended victim in the latter's trips to provinces, for instance, to Tayabas (now Quezon) where the President was scheduled to speak, but having encountered many difficulties, he decided to carry out his plan at the pro-parity meeting held at Plaza de Miranda on the night of March 10, 1947.

On the morning of that he went to the house of Amando Hernandez whom he requested to prepare for him a document (Exhibit B), in accordance with their pervious understanding in the preceding afternoon, when they met at the premises of the Manila Jockey Club on the occasion of an "anti-parity" meeting held there. On account of its materially in this case, we deem it proper to quote hereunder the contents of said document. An English translation (Exhibit B-2) from its original Tagalog reads:

FOR THE SAKE OF A FREE PHILIPPINES

I am the only one responsible for what happened. I conceived it, I planned it, and I carried it out all by myself alone. It took me many days and nights pondering over this act, talking to my own conscience, to my God, until I reached my conclusion. It was my duty.

I did not expected to live long; I only had on life to spare. And had I expected to lives to spare, I would not have hesitated either ton sacrifice it for the sake of a principle which was the welfare of the people.

Thousands have died in Bataan; many more have mourned the loss of their husbands, of their sons, and there are millions now suffering. Their deeds bore no fruits; their hopes were frustrated.

I was told by my conscience and by my God that there was a man to be blamed for all this: he had deceived the people, he had astounded them with no other purpose than to entice them; he even went to the extent of risking the heritage of our future generations. For these reasons he should not continue any longer. His life would mean nothing as compared with the welfare of eighteen million souls. And why should I not give up my life too if only the good of those eighteen million souls.

These are the reasons which impelled me to do what I did and I am willing to bear up the consequences of my act. I t matters not if others will curse me. Time and history will show, I am sure, that I have only displayed a high degree of patriotism in my performance of my said act.

Hurrah for a free Philippines.

Cheers for the happiness of every Filipino home.

May God pity on me.

Amen.

JULIO C. GUILLEN

A copy (Exhibit B-1) of the original in Tagalog (Exhibit B), made at the request of Guillen by his nephew, was handed to him only at about 6 o'clock in the afternoon of March 10, 1947, for which reason said Exhibit B-1 appears unsigned, because he was in a hurry for that meeting at Plaza de Miranda.

When he reached Plaza de Miranda, Guillen was carrying two hand grenades concealed in a paper bag which also contained peanuts. He buried one of the hand grenades (Exhibit D), in a plant pot located close to the platform, and when he decided to carry out his evil purpose he stood on the chair on which he had been sitting and, from a distance of about seven meters, he hurled the grenade at the President when the latter had just closed his speech, was being congratulated by Ambassador Romulo and was about to leave the platform.

General Castañeda, who was on the platform, saw the smoking, hissing, grenade and without losing his presence of mind, kicked it away from the platform, along the stairway, and towards an open space where the general thought the grenade was likely to do the least harm; and, covering the President with his body, shouted to the crowd that everybody should lie down. The grenade fell to the ground and exploded in the middle of a group of persons who were standing close to the platform. Confusion ensued, and the crowd dispersed in a panic. It was found that the fragments of the grenade had seriously injured Simeon Varela (or Barrela ) — who died on the following day as the result of mortal wounds caused by the fragments of the grenade (Exhibits F and F-1) — Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang.

Guillen was arrested by members of the Police Department about two hours after the occurrence. It appears that one Angel Garcia, who was one spectators at that meeting, saw how a person who was standing next to him hurled an object at the platform and, after the explosion, ran away towards a barber shop located near the platform at Plaza de Miranda. Suspecting that person was the thrower of the object that exploded, Garcia went after him and had almost succeeded in holding him, but Guillen offered stiff resistance, got loose from Garcia and managed to escape. Garcia pursued him, but some detectives, mistaking the former for the real criminal and the author of the explosion, placed him under arrest. In the meantime, while the City Mayor and some agents of the Manila Police Department were investigating the affair, one Manuel Robles volunteered the information that the person with whom Angel Garcia was wrestling was Julio Guillen; that he (Manuel Robles) was acquainted with Julio Guillen for the previous ten years and had seen each other in the plaza a few moments previous to the explosion.

The police operatives interrogated Garcia and Robles, and Julio Guillen was, within two hours after the occurrence, found in his home at 1724 Juan Luna Street, Manila, brought to the police headquarters and identified by Angel Garcia, as the same person who hurled towards the platform the object which exploded and whom Garcia tried to hold when he was running away.

During the investigation conducted by the police he readily admitted his responsibility, although at the same time he tried to justify his action in throwing the bomb at President Roxas. He also indicated to his captors the place where he had hidden his so called last will quoted above and marked Exhibit B, which was then unsigned by him and subsequently signed at the police headquarters.

Re-enacting the crime (Exhibit C), he pointed out to the police where he had buried (Exhibit C-1) the other hand grenade (Exhibit D), and, in the presence of witnesses he signed a statement which contained his answers to question propounded to him by Major A. Quintos of the Manila Police, who investigated him soon after his arrest (Exhibit E). From a perusal of his voluntary statement, we are satisfied that it tallies exactly with the declarations and made by him on the witness stand during the trial of this case.

THE ISSUES

In the brief submitted by counsel de oficio for this appellant, several errors are assigned allegedly committed by the trial court, namely: first, "in finding the appellant guilty of murder for the death of Simeon Varela"; second, "in declaring the appellant guilty of the complex crime of murder and multiple frustrated murder"; third, "in applying sub-section 1 of article 49 of the

Revised Penal Code in determining the penalty to be imposed upon the accused"; and fourth, "in considering the concurrence of the aggravating circumstances of nocturnity and of contempt of public authorities in the commission of crime."

The evidence for the prosecution, supported by the brazen statements made by the accused, shows beyond any shadow of doubt that, when Guillen attended that meeting, carrying with him two hand grenades, to put into execution his preconceived plan to assassinate President Roxas, he knew fully well that, by throwing one of those two hand grenades in his possession at President Roxas, and causing it to explode, he could not prevent the persons who were around his main and intended victim from being killed or at least injured, due to the highly explosive nature of the bomb employed by him to carry out his evil purpose.

Guillen, testifying in his own behalf, in answer to questions propounded by the trial judge (page 96 of transcript) supports our conclusion. He stated that he performed the act voluntarily; that his purpose was to kill the President, but that it did not make any difference to him if there were some people around the President when he hurled that bomb, because the killing of those who surrounded the President was tantamount to killing the President, in view of the fact that those persons, being loyal to the President being loyal to the President, were identified with the latter. In other word, although it was not his main intention to kill the persons surrounding the President, he felt no conjunction in killing them also in order to attain his main purpose of killing the President.

The facts do not support the contention of counsel for appellant that the latter is guilty only of homicide through reckless imprudence in regard to the death of Simeon Varela and of less serious physical injuries in regard to Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang, and that he should be sentenced to the corresponding penalties for the different felonies committed, the sum total of which shall not exceed three times the penalty to be imposed for the most serious crime in accordance with article 70 in relation to article 74 of the Revised Penal Code.

In throwing hand grenade at the President with the intention of killing him, the appellant acted with malice. He is therefore liable for all the consequences of his wrongful act; for in accordance with article 4 of the Revised Penal Code, criminal liability is incurred by any person committing felony (delito) although the wrongful act done be different from that which he intended. In criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939.) In the words of Viada, "in order that an act may be qualified as imprudence it is necessary that either malice nor intention to cause injury should intervene; where such intention exists, the act should

qualified by the felony it has produced even though it may not have been the intention of the actor to cause an evil of such gravity as that produced.' (Viada's Comments on the Penal Code, vol. 7, 5th ed., p.7.) And, as held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence. (People vs. Nanquil, 43 Phil., 232.) Where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless imprudence. (People vs. Gona, 54 Phil., 605)

Squarely on the point by counsel is the following decision of the Supreme Court of Spain:

Cuestion 62. Se presenta A, a las ocho de la noche, en el estanco de B a comprar tabaco, y habiendose negado este a darselo al fiado, se retira a quel sin mediar entre ambos disputa alguna; pero; trnscurrido un cuarto de hora, hallandose el estanquero despachando a C, se oye la detonacion de un arma de fuego disparada por A desde la calle, quedando muertos en el acto C y el estanquero; supuesta la no intencion en A de matar a C y si solo al estanquero, cabe calificar la muerte de este de homicidio y la de c de imprudencia temeraria? — La Sala de lo Criminal de la Auudiencia de Granada lo estimo asi, y condeno al procesado a catorse anos de reclusion por el homivcidio y a un año de prision correctional por la imprudencia. Aparte de que la muerte del estanquero debio calificarse de assesinato y no de homicidio, por haberse ejecutado con aleviosa. es evidente que la muerte de C, suponiendo que no se propusiera ejecutaria el procesado, no pudo calificarse de imprudencia teme raria, sino que tambien debio declararsele responsable de la misma, a tenor de lo puesto en este apartado ultimo del articulo; y que siendo ambas muertes producidas por un solo hecho, o sea por un solo disparo, debio imponerse al reo la pena del delito de asesinato en el grado maximo, a tenor de lo dispuesto en el art. 90 del Codigo, o sea la pena de muerte. Se ve, pues, claramente que en el antedicha sentencia, aparte de otros articulos del Codigo, se infringio por la Sala la disposicion de este apartado ultimo del articulo muy principalmente, y asi lo declaro el Tribunal Supremo en S. de 18 junio de 1872. (Gaceta de 1,0 de agosto.) (I Viada, 5th Ed., p. 42.)

Article 48 of the Revised Penal Code provides as follows:

Art. 48. Penalty for Complex Crimes. — When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period.

We think it is the above-quoted article and not paragraph 1 of article 49 that is applicable. The case before us is clearly governed by the first clause of article 48 because by a single act, that a throwing highly explosive hand grenade at President Roxas, the accused committed two grave felonies, namely: (1) murder, of which Simeon Varela was the victim; and (2) multiple attempted murder, of which President Roxas, Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang were the injured parties.

The killing of Simeon Varela was attended by the qualifying circumstance of treachery. In the case of People vs. Mabug-at, supra, this court held that the qualifying circumstance of treachery may be properly considered, even when the victim of the attack was not the one whom the defendant intended to kill, if it appears from the evidence that neither of the two persons could in any manner put up defense against the attack, or become aware of it. In the same case it was held that the qualifying circumstance of premeditation may not be properly taken into the account when the person whom the defendant proposed to kill was different from the one who became his victim.

There can be no question that the accused attempted to kill President Roxas by throwing a hand grenade at him with the intention to kill him, thereby commencing the commission of a felony by over acts, but he did not succeed in assassinating him "by reason of some cause or accident other than his own spontaneous desistance." For the same reason we qualify the injuries caused on the four other persons already named as merely attempted and not frustrated murder.

In this connection, it should be stated that , although there is abundant proof that , in violation of the provisions of article 148 of the Revised Penal Code, the accused Guillen has committed among others the offense of assault upon a person in authority, for in fact his efforts were directed towards the execution of his main purpose of eliminating President Roxas for his failure to redeem his electoral campaign promises, by throwing at him in his official capacity as the Chief Executive of the nation the hand grenade in question, yet, in view of the appropriate allegation charging Guillen with the commission of said offense, we shall refrain making a finding to that effect.

The complex crimes of murder and multiple attempted murder committed by the accused with the single act of throwing a hand grenade at the President, was attended by the various aggravating circumstances alleged in the information, without any mitigating circumstance. But we do not deem it necessary to consider said aggravating circumstances because in any event article 48 of the Revised Penal Code above-quoted requires that the penalty for the most serious of said crimes be applied in its maximum period. The penalty for murder is reclusion temporalin its maximum period to death. (Art. 248.)

It is our painful duty to apply the law and mete out to the accused the extreme penalty provided by it upon the facts and circumstances hereinabove narrated.

The sentence of the trial court being correct, we have no alternative but to affirm it, and we hereby do so by a unanimous vote. The death sentence shall be executed in accordance with article 81 of the Revised Penal Code, under authority of the Director of Prisons, on such working day as the trial court may fix within 30 days from the date the record shall have been remanded. It is so ordered.

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

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

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y MAGDALENA, accused-appellants.

The Solicitor General for plaintiff-appellee.

Citizens Legal Assistance Office for accused-appellants.

 

MEDIALDEA, J.:

For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA and BENJAMIN SAMSON y MAGDALENA were charged with the crime of MURDER in Criminal Case No. L-175-82 of the Court of First Instance (now Regional Trial Court) of Cavite, under an information which reads as follows:

That on or about May 19, 1982 at the town plaza of the Municipality of Rosario, Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping and assisting one another, with treachery and evident premeditation, taking advantage of their superior strength, and with the decided purpose to kill, poured gasoline, a combustible liquid to the body of Bayani Miranda and with the use of fire did then and there, wilfully, unlawfully and feloniously, burn the whole body of said Bayani Miranda which caused his subsequent death, to the damage and prejudice of the heirs of the aforenamed Bayani Miranda.

That the crime was committed with the qualifying circumstance of treachery and the aggravating circumstances of evident premeditation and superior strength, and the means employed was to weaken the

defense; that the wrong done in the commission of the crime was deliberately augmented by causing another wrong, that is the burning of the body of Bayani Miranda.

CONTRARY TO LAW (p. 1, Records).

Upon being arraigned, both accused pleaded not guilty to the offense charged. After trial, the trial court rendered a decision finding both accused guilty on the crime of murder but crediting in favor of the accused Pugay the mitigating circumstance of lack of intention to commit so grave a wrong, the dispositive portion of which reads as follows:

WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin Samson y Magdalena are pronounced guilty beyond reasonable doubt as principals by direct participation of the crime of murder for the death of Bayani Miranda, and appreciating the aforestated mitigating circumstance in favor of Pugay, he is sentenced to a prison term ranging from twelve (12) years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum, and Samson to suffer the penalty of reclusion perpetua together with the accessories of the law for both of them. The accused are solidarily held liable to indemnify the heirs of the victim in the amount of P13,940.00 plus moral damages of P10,000.00 and exemplary damages of P5,000.00.

Let the preventive imprisonment of Pugay be deducted from the principal penalty.

Cost against both accused.

SO ORDERED (p. 248, Records).

Not satisfied with the decision, both accused interposed the present appeal and assigned the following errors committed by the court a quo:

1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF ACCUSED-APPELLANTS IN ITS APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT THE ACCUSED-APPELLANTS WERE NOT ASSISTED BY A COUNSEL DURING THE CUSTODIAL INVESTIGATION.

2. THE COURT A QUO ERRED IN NOT FINDING THAT THE SUPPRESSION BY THE PROSECUTION OF SOME EVIDENCE IS FATAL TO ITS CASE.

3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE INCREDIBLE TESTIMONY OF EDUARDO GABION WHO WAS ONE OF THE MANY SUSPECTS ARRESTED BY THE POLICE (Accused-appellants' Brief, p. 48, Rollo).

The antecedent facts are as follows:

The deceased Miranda, a 25-year old retardate, and the accused Pugay were friends. Miranda used to run errands for Pugay and at times they slept together. On the evening of May 19, 1982, a town fiesta fair was held in the public plaza of Rosario, Cavite. There were different kinds of ride and one was a ferris wheel.

Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris wheel and reading a comic book with his friend Henry. Later, the accused Pugay and Samson with several companions arrived. These persons appeared to be drunk as they were all happy and noisy. As the group saw the deceased walking nearby, they started making fun of him. They made the deceased dance by tickling him with a piece of wood.

Not content with what they were doing with the deceased, the accused Pugay suddenly took a can of gasoline from under the engine of the ferns wheel and poured its contents on the body of the former. Gabion told Pugay not to do so while the latter was already in the process of pouring the gasoline. Then, the accused Samson set Miranda on fire making a human torch out of him.

The ferris wheel operator later arrived and doused with water the burning body of the deceased. Some people around also poured sand on the burning body and others wrapped the same with rags to extinguish the flame.

The body of the deceased was still aflame when police officer Rolando Silangcruz and other police officers of the Rosario Police Force arrived at the scene of the incident. Upon inquiring as to who were responsible for the dastardly act, the persons around spontaneously pointed to Pugay and Samson as the authors thereof.

The deceased was later rushed to the Grace Hospital for treatment. In the meantime, the police officers brought Gabion, the two accused and five other persons to the Rosario municipal building for interrogation. Police officer

Reynaldo Canlas took the written statements of Gabion and the two accused, after which Gabion was released. The two accused remained in custody.

After a careful review of the records, We find the grounds relied upon by the accused-appellants for the reversal of the decision of the court a quo to be without merit.

It bears emphasis that barely a few hours after the incident, accused-appellants gave their written statements to the police. The accused Pugay admitted in his statement, Exhibit F, that he poured a can of gasoline on the deceased believing that the contents thereof was water and then the accused Samson set the deceased on fire. The accused Samson, on the other hand, alleged in his statement that he saw Pugay pour gasoline on Miranda but did not see the person who set him on fire. Worthy of note is the fact that both statements did not impute any participation of eyewitness Gabion in the commission of the offense.

While testifying on their defense, the accused-appellants repudiated their written statements alleging that they were extracted by force. They claimed that the police maltreated them into admitting authorship of the crime. They also engaged in a concerted effort to lay the blame on Gabion for the commission of the offense.

Thus, while it is true that the written statements of the accused-appellants were mentioned and discussed in the decision of the court a quo, the contents thereof were not utilized as the sole basis for the findings of facts in the decision rendered. The said court categorically stated that "even without Exhibits 'F' and 'G', there is still Gabion's straightforward, positive and convincing testimony which remains unaffected by the uncorroborated, self-serving and unrealiable testimonies of Pugay and Samson" (p. 247, Records).

Accused-appellants next assert that the prosecution suppressed the testimonies of other eyewitnesses to the incident. They claim that despite the fact that there were other persons investigated by the police, only Gabion was presented as an eyewitness during the trial of the case. They argue that the deliberate non- presentation of these persons raises the presumption that their testimonies would be adverse to the prosecution.

There is no dispute that there were other persons who witnessed the commission of the crime. In fact there appears on record (pp. 16-17, Records) the written statements of one Abelardo Reyes and one Monico Alimorong alleging the same facts and imputing the respective acts of pouring of gasoline and setting the deceased on fire to the accused-appellants as testified to by Gabion in open court. They were listed as

prosecution witnesses in the information filed. Considering that their testimonies would be merely corroborative, their non-presentation does not give rise to the presumption that evidence wilfully suppressed would be adverse if produced. This presumption does not apply to the suppression of merely corroborative evidence (U.S. vs. Dinola, 37 Phil. 797).<äre||anº•1àw> Besides, the matter as to whom to utilize as witness is for the prosecution to decide.

Accused-appellants also attack the credibility of the eyewitness Gabion alleging that not only was the latter requested by the mother of the deceased to testify for the prosecution in exchange for his absolution from liability but also because his testimony that he was reading a comic book during an unusual event is contrary to human behavior and experience.

Gabion testified that it was his uncle and not the mother of the deceased who asked him to testify and state the truth about the incident. The mother of the deceased likewise testified that she never talked to Gabion and that she saw the latter for the first time when the instant case was tried. Besides, the accused Pugay admitted that Gabion was his friend and both Pugay and the other accused Samson testified that they had no previous misunderstanding with Gabion. Clearly, Gabion had no reason to testify falsely against them.

In support of their claim that the testimony of Gabion to the effect that he saw Pugay pour gasoline on the deceased and then Samson set him on fire is incredible, the accused-appellants quote Gabion's testimony on cross-examination that, after telling Pugay not to pour gasoline on the deceased, he (Gabion) resumed reading comics; and that it was only when the victim's body was on fire that he noticed a commotion.

However, explaining this testimony on re-direct examination, Gabion stated:

Q. Mr. Gabion, you told the Court on cross-examination that you were reading comics when you saw Pugay poured gasoline unto Bayani Miranda and lighted by Samson. How could you possibly see that incident while you were reading comics?

A. I put down the comics which I am reading and I saw what they were doing.

Q. According to you also before Bayani was poured with gasoline and lighted and burned later you had a talk with Pugay, is that correct?

A. When he was pouring gasoline on Bayani Miranda I was trying to prevent him from doing so.

Q. We want to clarify. According to you a while ago you had a talk with Pugay and as a matter of fact, you told him not to pour gasoline. That is what I want to know from you, if that is true?

A. Yes, sir.

Q. Aside from Bayani being tickled with a stick on his ass, do you mean to say you come to know that Pugay will pour gasoline unto him?

A. I do not know that would be that incident.

Q. Why did you as(k) Pugay in the first place not to pour gasoline before he did that actually?

A. Because I pity Bayani, sir.

Q. When you saw Pugay tickling Bayani with a stick on his ass you tried according to you to ask him not to and then later you said you asked not to pour gasoline. Did Pugay tell you he was going to pour gasoline on Bayani?

A. I was not told, sir.

Q. Did you come to know..... how did you come to know he was going to pour gasoline that is why you prevent him?

A. Because he was holding on a container of gasoline. I thought it was water but it was gasoline.

Q. It is clear that while Pugay was tickling Bayani with a stick on his ass, he later got hold of a can of gasoline, is that correct?

A. Yes, sir.

Q. And when he pick up the can of gasoline, was that the time you told him not to pour gasoline when he merely pick up the can of gasoline.

A. I saw him pouring the gasoline on the body of Joe.

Q. So, it is clear when you told Pugay not to pour gasoline he was already in the process of pouring gasoline on the body of Bayani?

A. Yes, sir (Tsn, July 30, 1983, pp. 32-33).

It is thus clear that prior to the incident in question, Gabion was reading a comic book; that Gabion stopped reading when the group of Pugay started to make fun of the deceased; that Gabion saw Pugay get the can of gasoline from under the engine of the ferris wheel; that it was while Pugay was in the process of pouring the gasoline on the body of the deceased when Gabion warned him not to do so; and that Gabion later saw Samson set the deceased on fire.

However, there is nothing in the records showing that there was previous conspiracy or unity of criminal purpose and intention between the two accused-appellants immediately before the commission of the crime. There was no animosity between the deceased and the accused Pugay or Samson. Their meeting at the scene of the incident was accidental. It is also clear that the accused Pugay and his group merely wanted to make fun of the deceased. Hence, the respective criminal responsibility of Pugay and Samson arising from different acts directed against the deceased is individual and not collective, and each of them is liable only for the act committed by him (U.S. vs. Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371).

The next question to be determined is the criminal responsibility of the accused Pugay. Having taken the can from under the engine of the ferris wheel and holding it before pouring its contents on the body of the deceased, this accused knew that the can contained gasoline. The stinging smell of this flammable liquid could not have escaped his notice even before pouring the

same. Clearly, he failed to exercise all the diligence necessary to avoid every undesirable consequence arising from any act that may be committed by his companions who at the time were making fun of the deceased. We agree with the Solicitor General that the accused is only guilty of homicide through reckless imprudence defined in Article 365 of the Revised Penal Code, as amended. In U.S. vs. Maleza, et. al. 14 Phil. 468, 470, this Court ruled as follows:

A man must use common sense and exercise due reflection in all his acts; it is his duty to be cautious, careful, and prudent, if not from instinct, then through fear of incurring punishment. He is responsible for such results as anyone might foresee and for acts which no one would have performed except through culpable abandon. Otherwise his own person, rights and property, all those of his fellow-beings, would ever be exposed to all manner of danger and injury.

The proper penalty that the accused Pugay must suffer is an indeterminate one ranging from four (4) months ofarresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. With respect to the accused Samson, the Solicitor General in his brief contends that "his conviction of murder, is proper considering that his act in setting the deceased on fire knowing that gasoline had just been poured on him is characterized by treachery as the victim was left completely helpless to defend and protect himself against such an outrage" (p. 57, Rollo). We do not agree.

There is entire absence of proof in the record that the accused Samson had some reason to kill the deceased before the incident. On the contrary, there is adequate evidence showing that his act was merely a part of their fun-making that evening. For the circumstance of treachery to exist, the attack must be deliberate and the culprit employed means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from any defense which the offended party might make.

There can be no doubt that the accused Samson knew very well that the liquid poured on the body of the deceased was gasoline and a flammable substance for he would not have committed the act of setting the latter on fire if it were otherwise. Giving him the benefit of doubt, it call be conceded that as part of their fun-making he merely intended to set the deceased's clothes on fire. His act, however, does not relieve him of criminal responsibility. Burning the clothes of the victim would cause at the very least some kind of physical injuries on his person, a felony defined in the Revised Penal Code. If his act resulted into a graver offense, as what took place in the instant case,

he must be held responsible therefor. Article 4 of the aforesaid code provides, inter alia, that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended.

As no sufficient evidence appears in the record establishing any qualifying circumstances, the accused Samson is only guilty of the crime of homicide defined and penalized in Article 249 of the Revised Penal Code, as amended. We are disposed to credit in his favor the ordinary mitigating circumstance of no intention to commit so grave a wrong as that committed as there is evidence of a fact from which such conclusion can be drawn. The eyewitness Gabion testified that the accused Pugay and Samson were stunned when they noticed the deceased burning (Tsn, June 1, 1983, pp. 16-17).<äre||anº•1àw>

The proper penalty that the accused Samson must suffer is an indeterminate one ranging from eight (8) years ofprision mayor, as minimum, to fourteen (14) years of reclusion temporal, as maximum.

The lower court held the accused solidarily liable for P13,940.00, the amount spent by Miranda's parents for his hospitalization, wake and interment. The indemnity for death is P30,000.00. Hence, the indemnity to the heirs of the deceased Miranda is increased to P43,940.00.

Both accused shall be jointly and severally liable for the aforesaid amount plus the P10,000.00 as moral damages and P5,000.00 as exemplary damages as found by the court a quo.

Accordingly, the judgment is affirmed with the modifications above-indicated. Costs against the accused-appellants.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-38511             October 6, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs.FRANCISCO CAGOCO Y RAMONES (alias FRANCISCO CAGURO, alias FRANCISCO ADMONES, aliasBUCOY, alias FRISCO GUY), defendant-appellant.

W.A. Caldwell and Sotto and Astilla for appellant.Office of the Solicitor-General Bengzon for appellee.

 

VICKERS, J.:

The accused was charged in the Court of First Instance of Manila with the crime of asesinato, committed as follows:

That on or about the 24th day of July, 1932, in the City of Manila, Philippine Islands, the said accused did then and there willfully, unlawfully and feloniously, without any just cause therefor and with intent to kill and treachery, assault and attack one Yu Lon by suddenly giving him a fist blow on the back part of the head, under conditions which intended directly and especially to insure, the accomplishment of his purpose without risk to himself arising from any defense the victim Yu Lon might make, thus causing him to fall on the ground as a consequence of which he suffered a lacerated wound on the scalp and a fissured fracture on the left occipital region, which were necessarily mortal and which caused the immediate death of the said Yu Lon.

After hearing the evidence, Judge Luis P. Torres found the defendant guilty as charged, and sentenced him to suffer reclusion perpetua, with the accessory penalties of the law, to indemnify the heirs of the deceased Yu Lon in the sum of P1,000, without subsidiary imprisonment in case of insolvency, and to pay the costs.

Appellant's attorney de oficio makes the following assignments of error:

1. The trial court erred in finding that the appellant the person who committed the assault on Yu Lon, the victim to the crime charged in the information.

2. Assuming that the appellant is the person who committed the assault on Yu Lon (a fact which we specifically deny), the trial court erred in finding that the appellant struck his supposed victim.

3. Assuming that the appellant is the person who committed the assault on Yu Lon, and that the appellant did strike his supposed victim (facts which we specifically deny) the trial court erred in finding that the blow was dealt from the victim's rear.

4. The trial court erred in finding that the identity of the appellant was fully established.

5. Assuming that the four preceding errors assigned are without merit, the trial court erred in convicting the appellant of the crime of murder, under article 248 of the Revised Penal Code, instead of convicting him of the crime of maltreatment, under article 266 of the said Code.

It appears from the evidence that about 8:30 on the night of July 24, 1932 Yu Lon and Yu Yee, father and son, stopped to talk on the sidewalk at the corner of Mestizos and San Fernando Streets in the District of San Nicolas Yu Lon was standing near the outer edge of the sidewalk, with his back to the street. While they were talking, a man passed back and forth behind Yu Lon once or twice, and when Yu Yee was about to take leave of his father, the man that had been passing back the forth behind Yu Lon approached him from behind and suddenly and without warning struck him with his fist on the back part of the head. Yu Lon tottered and fell backwards. His head struck the asphalt pavement; the lower part of his body fell on the sidewalk. His assailants immediately ran away. Yu Yee pursued him through San Fernando, Camba, and Jaboneros Streets, and then lost sight of him. Two other Chinese, Chin Sam and Yee Fung, who were walking along Calle Mestizos, saw the incident and joined him in the pursuit of Yu Lon's assailant. The wounded man was taken to the Philippine General Hospital, were he died about midnight. A post-mortem examination was made the next day by Dr. Anastacia Villegas, who found that the deceased had sustained a lacerated wound and fracture of the skull in the occipital region, and that he had died from cerebral hemorrhage; that he had tuberculosis, though not in an advanced stage, and a tumor in the left kidney.

Yu Yee promptly reported the incident to the police, and about 3 o'clock the next morning Sergeant Sol Cruz and other detectives, accompanied by Yu

Yee, went to the scene of the crime and found blood stains in the street. Yu Yee said that he could recognize his father's assailant, and described him as being about five feet in height, 25 or 30 years old, with long hair and wearing a suit of dark clothes. After Sergeant Sol Cruz had been working on the case for three or four days he received information that the accused might be the person that had assaulted Yu Lon, and on August 4th the accused was arrested by detectives Manrique and Bustamante. He was wearing a dark wool suit. Yu Yee was immediately called to the police station. The accused was placed near the middle of a line of some eleven persons that had been detained for investigation. They were wearing different kinds of clothes. Yu Yee without hesitation pointed out the defendant as the person that had assaulted Yu Lon. He identified him not only by his long hair combed towards the back and worn long on the sides in the form of side-whiskers (patillas), but also by his high cheek-bones and the fact that his ears have no lobes. The defendant was identified at the trial not only by Yu Yee, but also by Chin Sam and Yee Fung.

With respect to the first four assignment of error, which raise questions of fact as to the identification of the accused, and whether or not be struck the deceased, and if he did assault the deceased, whether he did so in a treacherous manner, we see no sufficient reason, after considering the evidence and arguments of counsel, to doubt the correctness of the findings of the trial judge. The accused was identified by Yu Yee and two other Chinese, and although Yu Yee may have overstated at the trial some of the facial peculiarities in the defendant that he claimed to have observed at the time of the incident, it must be remembered that Yu Yee without hesitation picked the defendant out of a group of eleven persons as his father's assailant, and that he had exceptional opportunities for observing his father's assailant, because while that person was walking back and forth behind Yu Lon, Yu Yee was facing the assailant.

We find the testimony of the defendant and his witnesses as to the whereabouts of the defendant on the night in question unworthy of credit.1awphil.net

The testimony of the three Chinese that a man struck the deceased and then ran away is corroborated by the testimony of a 15-year old boy, Dominador Sales.

As to the contention that the deceased would have fallen on his face if he had been struck on the back of the head, the expert testimony shows that in such a case a person instinctively makes an effort to preserve or regain his balance, and that as result thereof the deceased may have fallen backwards. Another consideration is that sidewalks almost invariably slope towards the pavement, and this being true, when the deceased straightened up, he naturally tended to fall backwards. The evidence leaves no room for doubt

that the accused struck the deceased on the back of the head, because when the deceased was assaulted he and Yu Yee were standing on the sidewalk, facing each other, and if the accused had not struck the deceased on the back of the head, it would have been necessary for him to go between the deceased and Yu Yee. Since the accused struck the deceased from behind and without warning, he acted with treachery. "There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and especially to insure its execution, without risk to himself arising from the defense which the offended party might make." (Article 14, No. 16, of the Revised Penal Code.)

The fourth assignment of error is a repetition of the first.

In the fifth assignment of error it is contended that the appellant if guilty at all, should be punished in accordance with article 266 of the Revised Penal Code, or for slight physical injuries instead of murder.

Paragraph No. 1 of article 4 of the Revised Penal Code provide 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; but in order that a person may be criminally liable for a felony different from that which he proposed to commit, it is indispensable that the two following requisites be present, to wit: (a) That a felony was committed; and (b) that the wrong done to the aggrieved person be the direct consequence of the crime committed by the offender. U.S. vs. Brobst, 14 Phil., 310; U.S. vs. Mallari, 29 Phil., 14 U.S. vs. Diana, 32 Phil., 344.)

In the Brobst case, supra, it was held that death may result from a blow over or near the heart or in the abdominal region, notwithstanding the fact that the blow leaves no outward mark of violence; that where death result as the direct consequence of the use of illegal violence, the mere fact that the diseased or weakened condition of the injured person contributed to his death, does not relieve the illegal aggressor of criminal responsibility; that one is not relieved, under the law in these Islands, from criminal liability for the natural consequences of one's illegal acts, merely because one does not intend to produce such consequences; but that in such cases, the lack of intention, while it does not exempt from criminal liability, is taken into consideration as an extenuating circumstance. (U.S. vs. Luciano, 2 Phil., 96.)

The reasoning of the decisions cited is applicable to the case at bar. There can be no reasonable doubt as to the cause of the death of Yu Lon. There is nothing to indicate that it was due to some extraneous case. It was clearly the direct consequence of defendants felonious act, and the fact that the defendant did not intend to cause so great an injury does not relieve him

from the consequence of his unlawful act, but is merely a mitigating circumstance (U.S. vs. Rodriguez, 23 Phil., 22).

The next question is whether the crime committed by the defendant should be classified as homicide or murder. Can the defendant be convicted of murder when he did not intend to kill the deceased?

We have seen that under the circumstances of this case the defendant is liable for the killing of Yu Lon, because his death was the direct consequence of defendant's felonious act of striking him on the head. If the defendant had not committed the assault in a treacherous manner. he would nevertheless have been guilty of homicide, although he did not intend to kill the deceased; and since the defendant did commit the crime with treachery, he is guilty of murder, because of the presence of the qualifying circumstance of treachery.

The Supreme Court of Spain has held that there is no incompatibility, moral or legal, between alevosia and the mitigating circumstance of not having intended to cause so great an injury:

Considering that there is no moral or legal incompatibility between treachery and the mitigating circumstance No. 3 of article 9 of the Penal Code, because the former depends upon the manner of execution of the crime and the latter upon the tendency of the will towards a definite purpose, and therefore there is no obstacle, in case treacherous means, modes or forms are employed, to the appreciation of the first of said circumstances and simultaneously of the second if the injury produced exceeds the limits intended by the accused; and for that reason it cannot be held in the instant case that this mitigating circumstances excludes treachery, or that the accused, being chargeable with the death of the offended party, should not be liable due to the voluntary presence of treachery in the act perpetrated, although with mitigation corresponding to the disparity between the act intended and the act consummated, etc. (Decision of May 10, 1905, Gazette of April 20, 906; Viada: 5th edition, Vol. 2, p. 156.)

In the case of the United States vs. Candelaria (2 Phil., 104), this court speaking through Chief Justice Arellano said:

In trying Jacinto to a tree the three defendants acted treacherously (alevosamente). Whether it was to prevent him from making resistance, whether it was to torture him for the purpose of making him give information, or whether it was for the purpose of inflicting further punishment, the fact is that by this means the defendants secured themselves against any risk which might have arisen from

an attempt at self-defense on the part of the victim. We are of opinion that they had no intention to cause so great an evil as that which resulted, but this does not neutralize that other qualifying circumstance of the resulting death, because if there was no alevosia for the purpose of killing there was alevosia for the purpose of the illtreating. The means employed were not made use of for the precise purpose of making certain the death of Jacinto de Jesus but as a safe means of illtreating him without risk to the persons who were doing so. If by this means the ill treatment was aggravated, it follows that it is a qualifying circumstances in the death which resulted. It was not a condition of the purpose, but it was a condition of the criminal act itself, in whatever sense this be taken.

The penalty of murder (article 248 of the Revised Penal Code) is reclusion temporal in its maximum period to death, and there being present in this case one mitigating and no aggravating circumstance the prison sentence of the appellant is reduced to seventeen years, four months, and one day of reclusion temporal. As thus modified, the decision appealed from is affirmed, with the costs against the appellant.

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

G.R. No. 152133             February 9, 2006

ROLLIE CALIMUTAN, Petitioner, vs.PEOPLE OF THE PHILIPPINES, ET AL., Respondents.

D E C I S I O N

CHICO-NAZARIO, J.:

In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, petitioner Rollie Calimutan prays for the reversal of the Decision of the Court of Appeals in CA-G.R. CR No. 23306, dated 29 August 2001,1affirming the Decision of the Regional Trial Court (RTC), Branch 46, of Masbate, Masbate, in Criminal Case No. 8184, dated 19 November 1998,2 finding petitioner Calimutan guilty beyond reasonable doubt of the crime of homicide under Article 249 of the Revised Penal Code.

The Information3 filed with the RTC charged petitioner Calimutan with the crime of homicide, allegedly committed as follows –

That on or about February 4, 1996, in the morning thereof, at sitio Capsay, Barangay Panique, Municipality of Aroroy, Province of Masbate, Philippines within the jurisdiction of this Honorable Court, the above-named accused with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and throw a stone at PHILIP CANTRE, hitting him at the back left portion of his body, resulting in laceration of spleen due to impact which caused his death a day after.

CONTRARY TO LAW.

Masbate, Masbate, September 11, 1996.

Accordingly, the RTC issued, on 02 December 1996, a warrant4 for the arrest of petitioner Calimutan. On 09 January 1997, however, he was provisionally released5 after posting sufficient bailbond.6 During the arraignment on 21 May 1997, petitioner Calimutan pleaded not guilty to the crime of homicide charged against him.7

In the course of the trial, the prosecution presented three witnesses, namely: (1) Dr. Ronaldo B. Mendez, a Senior Medico-Legal Officer of the National Bureau of Investigation (NBI); (2) Belen B. Cantre, mother of the victim, Philip Cantre; and (3) Rene L. Sañano, companion of the victim Cantre when the alleged crime took place. Their testimonies are collectively summarized below.

On 04 February 1996, at around 10:00 a.m., the victim Cantre and witness Sañano, together with two other companions, had a drinking spree at a videoke bar in Crossing Capsay, Panique, Aroroy, Masbate. From the videoke bar, the victim Cantre and witness Sañano proceeded to go home to their respective houses, but along the way, they crossed paths with petitioner Calimutan and a certain Michael Bulalacao. Victim Cantre was harboring a grudge against Bulalacao, suspecting the latter as the culprit responsible for throwing stones at the Cantre’s house on a previous night. Thus, upon seeing Bulalacao, victim Cantre suddenly punched him. While Bulalacao ran away, petitioner Calimutan dashed towards the backs of victim Cantre and witness Sañano. Petitioner Calimutan then picked up a stone, as big as a man’s fist, which he threw at victim Cantre, hitting him at the left side of his back. When hit by the stone, victim Cantre stopped for a moment and held his back. Witness Sañano put himself between the victim Cantre and petitioner Calimutan, and attempted to pacify the two, even convincing petitioner Calimutan to put down another stone he was already holding. He also urged victim Cantre and petitioner Calimutan to just go home. Witness Sañano accompanied victim Cantre to the latter’s house, and on the way, victim Cantre complained of the pain in the left side of his back hit by the stone. They arrived at the Cantre’s house at around 12:00 noon, and witness Sañano left victim Cantre to the care of the latter’s mother, Belen.8

Victim Cantre immediately told his mother, Belen, of the stoning incident involving petitioner Calimutan. He again complained of backache and also of stomachache, and was unable to eat. By nighttime, victim Cantre was alternately feeling cold and then warm. He was sweating profusely and his entire body felt numb. His family would have wanted to bring him to a doctor but they had no vehicle. At around 3:00 a.m. of the following day, 05 February 1996, Belen was wiping his son with a piece of cloth, when victim Cantre asked for some food. He was able to eat a little, but he also later vomited whatever he ate. For the last time, he complained of backache and stomachache, and shortly thereafter, he died.9

Right after his death, victim Cantre was examined by Dr. Conchita S. Ulanday, the Municipal Health Officer of Aroroy, Masbate. The Post-Mortem Examination Report10 and Certification of Death,11 issued and signed by Dr. Ulanday, stated that the cause of death of victim Cantre was cardio-respiratory arrest due to suspected food poisoning. The body of victim Cantre was subsequently embalmed and buried on 13 February 1996.

Unsatisfied with the findings of Dr. Ulanday, the Cantre family, with the help of the Lingkod Bayan-Circulo de Abogadas of the ABS-CBN Foundation, requested for an exhumation and autopsy of the body of the victim Cantre by the NBI. The exhumation and autopsy of the body of the victim Cantre was conducted by Dr. Ronaldo B. Mendez on 15 April 1996,12 after which, he reported the following findings –

Body; fairly well-preserved with sign of partial autopsy; clad in white Barong Tagalog and blue pants placed inside a wooden golden-brown coffin and buried in a concrete niche.

Contused-abrasion, 2.3 x 1.0 cms., posterior chest wall, left side.

Hematoma, 16.0 x 8.0 cms., abdomen, along mid-line.

Hemoperitoneum, massive, clotte [sic].

Laceration, spleen.

Other visceral organ, pale and embalmed.

Stomach contains small amount of whitish fluid and other partially digested food particles.

x x x x

CAUSE OF DEATH: TRAUMATIC INJURY OF THE ABDOMEN.

In his testimony before the RTC, Dr. Mendez affirmed the contents of his exhumation and autopsy report. He explained that the victim Cantre suffered from an internal hemorrhage and there was massive accumulation of blood in his abdominal cavity due to his lacerated spleen. The laceration of the spleen can be caused by any blunt instrument, such as a stone. Hence, Dr. Mendez confirmed the possibility that the victim Cantre was stoned to death by petitioner Calimutan.13

To counter the evidence of the prosecution, the defense presented the sole testimony of the accused, herein petitioner, Calimutan.

According to petitioner Calimutan, at about 1:00 p.m. on 04 February 1996, he was walking with his house helper, Michael Bulalacao, on their way to Crossing Capsay, Panique, Aroroy, Masbate, when they met with the victim Cantre and witness Sañano. The victim Cantre took hold of Bulalacao and punched him several times. Petitioner Calimutan attempted to pacify the

victim Cantre but the latter refused to calm down, pulling out from his waist an eight-inch Batangas knife and uttering that he was looking for trouble, either "to kill or be killed." At this point, petitioner Calimutan was about ten meters away from the victim Cantre and was too frightened to move any closer for fear that the enraged man would turn on him; he still had a family to take care of. When he saw that the victim Cantre was about to stab Bulalacao, petitioner Calimutan picked up a stone, which he described as approximately one-inch in diameter, and threw it at the victim Cantre. He was able to hit the victim Cantre on his right buttock. Petitioner Calimutan and Bulalacao then started to run away, and victim Cantre chased after them, but witness Sañano was able to pacify the victim Cantre. Petitioner Calimutan allegedly reported the incident to a kagawad of Barangay Panique and to the police authorities and sought their help in settling the dispute between Bulalacao and the victim Cantre. Bulalacao, meanwhile, refused to seek medical help despite the advice of petitioner Calimutan and, instead, chose to go back to his hometown.14

Petitioner Calimutan was totally unaware of what had happened to the victim Cantre after the stoning incident on 04 February 1996. Some of his friends told him that they still saw the victim Cantre drinking at a videoke bar on the night of 04 February 1996. As far as he knew, the victim Cantre died the following day, on 05 February 1996, because of food poisoning. Petitioner Calimutan maintained that he had no personal grudge against the victim Cantre previous to the stoning incident.15

On 19 November 1998, the RTC rendered its Decision,16 essentially adopting the prosecution’s account of the incident on 04 February 1996, and pronouncing that –

It cannot be legally contended that the throwing of the stone by the accused was in defense of his companion, a stranger, because after the boxing Michael was able to run. While it appears that the victim was the unlawful aggressor at the beginning, but the aggression already ceased after Michael was able to run and there was no more need for throwing a stone. The throwing of the stone to the victim which was a retaliatory act can be considered unlawful, hence the accused can be held criminally liable under paragraph 1 of Art. 4 of the Revised Penal Code.

The act of throwing a stone from behind which hit the victim at his back on the left side was a treacherous one and the accused committed a felony causing physical injuries to the victim. The physical injury of hematoma as a result of the impact of the stone resulted in the laceration of the spleen causing the death of the victim. The accused is criminally liable for all the direct and natural consequences of this unlawful act even if the ultimate result had not been intended. (Art. 4, Par. 1, Revised Penal Code; People vs. Narciso, CA-G.R. No. 03532-CR, Jan. 13, 1964)

One is not relieved from criminal liability for the natural consequences of one’s illegal acts merely because one does not intend to produce such consequences (U.S. vs. Brobst, 14 Phil. 310).

The crime committed is Homicide as defined and penalized under Art. 249 of the Revised Penal Code.

WHEREFORE, the Court finds and so holds that accused ROLLIE CALIMUTAN is GUILTY beyond reasonable doubt of the crime of Homicide defined and penalized under Art. 249 of the Revised Penal Code with no mitigating or aggravating circumstance and applying the Indeterminate Sentence Law hereby imposes the penalty of imprisonment from EIGHT (8) YEARS of Prision Mayor as minimum, to TWELVE (12) YEARS and ONE (1) DAY of Reclusion Temporal as maximum, and to indemnify the heirs of Philip Cantre the sum of Fifty Thousand (P50,000.00) Pesos as compensatory damages and the sum of Fifty Thousand (P50,000.00) Pesos as moral damages, without subsidiary imprisonment in case of insolvency.

Petitioner Calimutan appealed the Decision of the RTC to the Court of Appeals. The Court of Appeals, in its Decision, dated 29 August 2001,17 sustained the conviction of homicide rendered by the RTC against petitioner Calimutan, ratiocinating thus –

The prosecution has sufficiently established that the serious internal injury sustained by the victim was caused by the stone thrown at the victim by the accused which, the accused-appellant does not deny. It was likewise shown that the internal injury sustained by the victim was the result of the impact of the stone that hit the victim. It resulted to a traumatic injury of the abdomen causing the laceration of the victim’s spleen.

This is clearly shown by the autopsy report prepared by Dr. Ronaldo Mendez, a Senior Medico Legal Officer of the NBI after the exhumation of the victim’s cadaver…

The Court cannot give credence to the post mortem report prepared by Municipal Health Officer Dr. Conchita Ulanday stating that the cause of the victim’s death was food poisoning. Dr. Ulanday was not even presented to testify in court hence she was not even able to identify and/or affirm the contents of her report. She was not made available for cross-examination on the accuracy and correctness of her findings.

Dr. Conchita Ulanday’s post mortem report cannot prevail over the autopsy report (Exh. "C") of the Medico-Legal Officer of the NBI who testified and was cross-examined by the defense.

Besides, if accused-appellant was convinced that the victim indeed died of food poisoning, as reported by Dr. Conchita Ulanday, why did they not present her as their witness to belie the report of the Medico-Legal Officer of the NBI.

The trial court’s evaluation of the testimony of Dr. Mendez is accorded the highest respect because it had the opportunity to observe the conduct and demeanor of said witness.

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Masbate, Branch 46, finding accused-appellant guilty beyond reasonable doubt of the crime of homicide is hereby AFFIRMED.

The Court of Appeals, in its Resolution, dated 15 January 2002,18 denied the Motion for Reconsideration filed by petitioner Calimutan for lack of merit since the issues raised therein had already been passed and ruled upon in its Decision, dated 29 August 2001.

Comes now petitioner Calimutan, by way of the present Petition for Review on Certiorari, seeking (1) the reversal of the Decisions of the RTC, dated 19 November 1998, and of the Court of Appeals, dated 29 August 2001, convicting him of the crime of homicide; and, (2) consequently, his acquittal of the said crime based on reasonable doubt.

Petitioner Calimutan contended that the existence of the two autopsy reports, with dissimilar findings on the cause of death of the victim Cantre, constituted reasonable doubt as to the liability of petitioner Calimutan for the said death, arguing that –

x x x [I]t was Dra. Conchita Ulanday, Municipal Health Officer of Aroroy, Masbate was the first physician of the government who conducted an examination on the cadaver of the victim Philip Cantre whose findings was that the cause of his death was due to food poisoning while the second government physician NBI Medico Legal Officer Dr. Ronaldo Mendez whose findings was that the cause of the death was due to a traumatic injury of the abdomen caused by a lacerated spleen and with these findings of two (2) government physicians whose findings are at variance with each other materially, it is humbly contended that the same issue raised a reasonable doubt on the culpability of the petitioner.

As there are improbabilities and uncertainties of the evidence for the prosecution in the case at bar, it suffices to reaise [sic] reasonable doubt as to the petitioner’s guilt and therefore, he is entitled to acquittal (People vs. Delmendo, G.R. No. 32146, November 23, 1981).19

In this jurisdiction, an accused in a criminal case may only be convicted if his or her guilt is established by proof beyond reasonable doubt. Proof beyond reasonable doubt requires only a moral certainty or that degree of proof which produces conviction in an unprejudiced mind; it does not demand absolute certainty and the exclusion of all possibility of error.20

In the Petition at bar, this Court finds that there is proof beyond reasonable doubt to hold petitioner Calimutan liable for the death of the victim Cantre.

Undoubtedly, the exhumation and autopsy report and the personal testimony before the RTC of prosecution witness, NBI Senior Medico-Legal Officer Dr. Mendez, are vital pieces of evidence against petitioner Calimutan. Dr. Mendez determined that the victim Cantre died of internal hemorrhage or bleeding due to the laceration of his spleen. In his testimony, Dr. Mendez clearly and consistently explained that the spleen could be lacerated or ruptured when the abdominal area was hit with a blunt object, such as the stone thrown by petitioner Calimutan at the victim Cantre.

It bears to emphasize that Dr. Mendez was presented by the prosecution as an expert witness, whose "competency and academic qualification and background" was admitted by the defense itself.21 As a Senior Medico-Legal Officer of the NBI, Dr. Mendez is presumed to possess sufficient knowledge of pathology, surgery, gynecology, toxicology, and such other branches of medicine germane to the issues involved in a case.22

Dr. Mendez’s testimony as an expert witness is evidence,23 and although it does not necessarily bind the courts, both the RTC and the Court of Appeals had properly accorded it great weight and probative value. Having testified as to matters undeniably within his area of expertise, and having performed a thorough autopsy on the body of the victim Cantre, his findings as to the cause of death of the victim Cantre are more than just the mere speculations of an ordinary person. They may sufficiently establish the causal relationship between the stone thrown by the petitioner Calimutan and the lacerated spleen of the victim Cantre which, subsequently, resulted in the latter’s death. With no apparent mistake or irregularity, whether in the manner by which Dr. Mendez performed the autopsy on the body of the victim Cantre or in his findings, then his report and testimony must be seriously considered by this Court.

Moreover, reference to other resource materials on abdominal injuries would also support the conclusion of Dr. Mendez that the stone thrown by petitioner Calimutan caused the death of the victim Cantre.

One source explains the nature of abdominal injuries24 in the following manner –

The skin may remain unmarked inspite of extensive internal injuries with bleeding and disruption of the internal organs. The areas most vulnerable are the point of attachment of internal organs, especially at the source of its blood supply and at the point where blood vessels change direction.

The area in the middle superior half of the abdomen, forming a triangle bounded by the ribs on the two sides and a line drawn horizontally through the umbilicus forming its base is vulnerable to trauma applied from any direction. In this triangle are found several blood vessels changing direction, particularly the celiac trunk, its branches (the hepatic, splenic and gastric arteries) as well as the accompanying veins. The loop of the duodenum, the ligament of Treitz and the pancreas are in the retroperitoneal space, and the stomach and transverse colon are in the triangle, located in the peritoneal cavity. Compression or blow on the area may cause detachment, laceration, stretch-stress, contusion of the organs (Legal Medicine 1980, Cyril H. Wecht et., p. 41).

As to injuries to the spleen, in particular,25 the same source expounds that –

The spleen usually suffers traumatic rupture resulting from the impact of a fall or blow from the crushing and grinding effects of wheels of motor vehicles. Although the organ is protected at its upper portion by the ribs and also by the air-containing visceral organs, yet on account of its superficiality and fragility, it is usually affected by trauma. x x x.

Certainly, there are some terms in the above-quoted paragraphs difficult to comprehend for people without medical backgrounds. Nevertheless, there are some points that can be plainly derived therefrom: (1) Contrary to common perception, the abdominal area is more than just the waist area. The entire abdominal area is divided into different triangles, and the spleen is located in the upper triangle, bounded by the rib cage; (2) The spleen and all internal organs in the same triangle are vulnerable to trauma from all directions. Therefore, the stone need not hit the victim Cantre from the front. Even impact from a stone hitting the back of the victim Cantre, in the area of the afore-mentioned triangle, could rupture the spleen; and (3) Although the spleen had already been ruptured or lacerated, there may not always be a perceptible external injury to the victim. Injury to the spleen cannot, at all times, be attributed to an obvious, external injury such as a cut or bruise. The laceration of the victim Cantre’s spleen can be caused by a stone thrown hard enough, which qualifies as a nonpenetrating trauma26 –

Nonpenetrating Trauma. The spleen, alone or in combination with other viscera, is the most frequently injured organ following blunt trauma to the abdomen or the lower thoracic cage. Automobile accidents provide the

predominating cause, while falls, sledding and bicycle injuries, and blows incurred during contact sports are frequently implicated in children. x x x

The sheer impact of the stone thrown by petitioner Calimutan at the back of the victim Cantre could rupture or lacerate the spleen – an organ described as vulnerable, superficial, and fragile – even without causing any other external physical injury. Accordingly, the findings of Dr. Mendez that the victim Cantre died of internal hemorrhage from his lacerated spleen, and the cause of the laceration of the spleen was the stone thrown by petitioner Calimutan at the back of the victim Cantre, does not necessarily contradict his testimony before the RTC that none of the external injuries of the victim Cantre were fatal.

Based on the foregoing discussion, the prosecution was able to establish that the proximate cause of the death of the victim Cantre was the stone thrown at him by petitioner Calimutan. Proximate cause has been defined as "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred."27

The two other witnesses presented by the prosecution, namely Sañano and Belen Cantre, had adequately recounted the events that transpired on 04 February 1996 to 05 February 1996. Between the two of them, the said witnesses accounted for the whereabouts, actions, and physical condition of the victim Cantre during the said period. Before the encounter with petitioner Calimutan and Bulalacao, the victim Cantre seemed to be physically fine. However, after being hit at the back by the stone thrown at him by petitioner Calimutan, the victim Cantre had continuously complained of backache. Subsequently, his physical condition rapidly deteriorated, until finally, he died. Other than being stoned by petitioner Calimutan, there was no other instance when the victim Cantre may have been hit by another blunt instrument which could have caused the laceration of his spleen.

Hence, this Court is morally persuaded that the victim Cantre died from a lacerated spleen, an injury sustained after being hit by a stone thrown at him by petitioner Calimutan. Not even the post-mortem report of Dr. Ulanday, the Municipal Health Officer who first examined the body of the victim Cantre, can raise reasonable doubt as to the cause of death of the victim Cantre. Invoking Dr. Ulanday’s post-mortem report, the defense insisted on the possibility that the victim Cantre died of food poisoning. The post-mortem report, though, cannot be given much weight and probative value for the following reasons –

First, a closer scrutiny of the words used by Dr. Ulanday in her post-mortem report, as well as in the death certificate of the victim Cantre, reveals that

although she suspected food poisoning as the cause of death, she held back from making a categorical statement that it was so. In the post-mortem report, 28 she found that "x x x the provable (sic) cause of death was due to cardio-respiratory arrest. Food poisoning must be confirm (sic) by laboratory e(x)am." In the death certificate of the victim Cantre, 29 she wrote that the immediate cause of death was "Cardio-Respiratory Arrest" and the antecedent cause was "Food Poisoning Suspect." There was no showing that further laboratory tests were indeed conducted to confirm Dr. Ulanday’s suspicion that the victim Cantre suffered from food poisoning, and without such confirmation, her suspicion as to the cause of death remains just that – a suspicion.

Second, Dr. Ulanday executed before the NBI a sworn statement30 in which she had explained her findings in the post-mortem report, to wit –

05. Q: Did you conduct an autopsy on his cadaver?

A: I did sir, but not as exhaustive as that done by the NBI Medico-legal.

06. Q: Now, what do you want to state regarding your certification on the death of PHILIP B. CANTRE?

A: I stated in the certification and even in the Death Certificate about "Food Poisoning". What I stated in the Death Certificate was that CANTRE was a SUSPECTED victim of food poisoning. I didn’t state that he was a case of food poisoning. And in the Certification, I even recommended that an examination be done to confirm that suspicion.

07. Q: What gave you that suspicion of poisoning?

A: As there were no external signs of fatal injuries except that of the contusion or abrasion, measuring as that size of a 25 centavo coin, I based my suspicion from the history of the victim and from the police investigation.

08. Q: You also mentioned in your Certification that there was no internal hemorrhage in the cadaver. Did you open the body of the cadaver?

A: As I have already stated sir, I did not conduct an exhaustive autopsy. I made an incision on the abdomen and I explored the internal organs of the cadaver with my hand in search for any clotting inside. But I found none. I did not open the body of the cadaver.

09. Q: You mentioned about a contusion you have observed on the cadaver. Where was it located?

A: On the left portion of his back, sir.

10. Q: Now, is it possible that if somebody be hit by a hard object on that part of his body, his SPLEEN could be injured?

A: Yes, sir. But that would depend on how strong or forceful the impact was.

In contrast, Dr. Mendez described in his testimony before the RTC31 how he conducted the autopsy of the body of the victim Cantre, as follows –

Q What specific procedure did you do in connection with the exhumation of the body of the victim in this case?

A We opened the head, chest and the abdomen.

Q That was part of the autopsy you have conducted?

A Yes, sir.

Q Aside from opening the head as well as the body of the victim Philip Cantre, what other matters did you do in connection therewith?

A We examined the internal organs.

Q What in particular internal organs you have examined?

A The brain, the heart, the lungs, the liver, the kidneys, the pancreas plus the intestines.

x x x x

Q The cause of death as you have listed here in your findings is listed as traumatic injury of the abdomen, will you kindly tell us Doctor what is the significance of this medical term traumatic injury of the abdomen?

A We, medico-legal officers of the NBI don’t do what other doctors do as they make causes of death as internal hemorrhage we particularly point to the injury of the body like this particular case the injury was at the abdomen of the victim.

Q Will you tell as Doctor what particular portion of the abdomen of the victim this traumatic injury is located?

A Along the midline but the damaged organ was at the left.

Q What particular organ are you referring to?

A The spleen, sir.

The difference in the extent of the examinations conducted by the two doctors of the body of the victim Cantre provides an adequate explanation for their apparent inconsistent findings as to the cause of death. Comparing the limited autopsy conducted by Dr. Ulanday and her unconfirmed suspicion of food poisoning of the victim Cantre, as opposed to the exhaustive autopsy performed by Dr. Mendez and his definitive finding of a ruptured spleen as the cause of death of the victim Cantre, then the latter, without doubt, deserves to be given credence by the courts.

Third, that the prosecution no longer presented Dr. Ulanday before the RTC despite being included in its list of witnesses did not amount to a willful suppression of evidence that would give rise to the presumption that her testimony would be adverse to the prosecution if produced.32 As this Court already expounded in the case ofPeople v. Jumamoy33 –

The prosecution's failure to present the other witnesses listed in the information did not constitute, contrary to the contention of the accused, suppression of evidence. The prosecutor has the exclusive prerogative to determine the witnesses to be presented for the prosecution. If the prosecution has several eyewitnesses, as in the instant case, the prosecutor need not present all of them but only as many as may be needed to meet the quantum of proof necessary to establish the guilt of the accused beyond reasonable doubt. The testimonies of the other witnesses may, therefore, be dispensed with for being merely corroborative in nature. This Court has ruled that the non-presentation of corroborative witnesses would not constitute suppression of evidence and would not be fatal to the prosecution's case. Besides, there is no showing that the eyewitnesses who were not presented in court as witnesses were not available to the accused. We reiterate the rule that the adverse presumption from a suppression of evidence is not applicable when (1) the suppression is not willful; (2) the evidence suppressed or withheld is merely corroborative or cumulative; (3) the evidence is at the disposal of both parties; and (4) the suppression is an exercise of a privilege. Moreover, if the accused believed that the failure to present the other witnesses was because their testimonies would be unfavorable to the prosecution, he should have compelled their appearance, by compulsory process, to testify as his own witnesses or even as hostile witnesses.

It was a judgment call for the prosecution to no longer present Dr. Ulanday before the RTC, perhaps believing that it had already presented sufficient evidence to merit the conviction of petitioner Calimutan even without her testimony. There was nothing, however, preventing the defense from calling on, or even compelling, with the appropriate court processes, Dr. Ulanday to testify in court as its witness if it truly believed that her testimony would be adverse to the case presented by the prosecution.

While this Court is in accord with the factual findings of the RTC and the Court of Appeals and affirms that there is ample evidence proving that the death of the victim Cantre was caused by his lacerated spleen, an injury which resulted from being hit by the stone thrown at him by petitioner Calimutan, this Court, nonetheless, is at variance with the RTC and the Court of Appeals as to the determination of the appropriate crime or offense for which the petitioner should have been convicted for.

Article 3 of the Revised Penal Code classifies felonies according to the means by which they are committed, in particular: (1) intentional felonies, and (2) culpable felonies. These two types of felonies are distinguished from each other by the existence or absence of malicious intent of the offender –

In intentional felonies, the act or omission of the offender is malicious. In the language of Art. 3, the act is performed with deliberate intent (with malice). The offender, in performing the act or in incurring the omission, has the intention to cause an injury to another. In culpable felonies, the act or omission of the offender is not malicious. The injury caused by the offender to another person is "unintentional, it being simply the incident of another act performed without malice." (People vs. Sara, 55 Phil. 939). As stated in Art. 3, the wrongful act results from imprudence, negligence, lack of foresight or lack of skill.34

In the Petition at bar, this Court cannot, in good conscience, attribute to petitioner Calimutan any malicious intent to injure, much less to kill, the victim Cantre; and in the absence of such intent, this Court cannot sustain the conviction of petitioner Calimutan for the intentional crime of homicide, as rendered by the RTC and affirmed by the Court of Appeals. Instead, this Court finds petitioner Calimutan guilty beyond reasonable doubt of the culpable felony of reckless imprudence resulting in homicide under Article 365 of the Revised Penal Code.

Article 365 of the Revised Penal Code expressly provides for the definition of reckless imprudence –

Reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of

inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place.

There are several circumstances, discussed in the succeeding paragraphs, that demonstrate petitioner Calimutan’s lack of intent to kill the victim Cantre, and conversely, that substantiate the view of this Court that the death of victim Cantre was a result of petitioner Calimutan’s reckless imprudence. The RTC and the Court of Appeals may have failed to appreciate, or had completely overlooked, the significance of such circumstances.

It should be remembered that the meeting of the victim Cantre and witness Sañano, on the one hand, and petitioner Calimutan and his helper Bulalacao, on the other, was a chance encounter as the two parties were on their way to different destinations. The victim Cantre and witness Sañano were on their way home from a drinking spree in Crossing Capsay, while petitioner Calimutan and his helper Bulalacao were walking from the market to Crossing Capsay. While the evidence on record suggests that a running grudge existed between the victim Cantre and Bulalacao, it did not establish that there was likewise an existing animosity between the victim Cantre and petitioner Calimutan.1avvphil.net

In both versions of the events of 04 February 1996 submitted by the prosecution and the defense, it was the victim Cantre who was the initial aggressor. He suddenly punched Bulalacao, the helper and companion of petitioner Calimutan, when they met on the road. The attack of the victim Cantre was swift and unprovoked, which spurred petitioner Calimutan into responsive action. Given that this Court dismisses the claim of petitioner Calimutan that the victim Cantre was holding a knife, it does take into account that the victim Cantre was considerably older and bigger, at 26 years of age and with a height of five feet and nine inches, compared to Bulalacao, the boy he attacked, who was only 15 years old and stood at about five feet. Even with his bare hands, the victim Cantre could have hurt Bulalacao. Petitioner Calimutan sought only to protect Bulalacao and to stop the assault of the victim Cantre against the latter when he picked up a stone and threw it at the victim Cantre. The stone was readily available as a weapon to petitioner Calimutan since the incident took place on a road. That he threw the stone at the back of the victim Cantre does not automatically imply treachery on the part of petitioner Calimutan as it is highly probable that in the midst of the fray, he threw the stone rashly and impulsively, with no regard as to the position of the victim Cantre. When the victim Cantre stopped his aggression after being hit by the stone thrown by petitioner Calimutan, the latter also desisted from any other act of violence against the victim Cantre.

The above-described incident could not have taken more than just a few minutes. It was a very brief scuffle, in which the parties involved would hardly have the time to ponder upon the most appropriate course of action to take. With this in mind, this Court cannot concur in the declaration made by the Court of Appeals that petitioner Calimutan threw the stone at the victim Cantre as a retaliatory act. It was evidently a swift and spontaneous reaction to an unexpected and unprovoked attack by the victim Cantre on Bulalacao. That Bulalacao was already able to run away from the victim Cantre may have escaped the notice of the petitioner Calimutan who, under the pressure of the circumstances, was forced to act as quickly as possible.

The prosecution did not establish that petitioner Calimutan threw the stone at the victim Cantre with the specific intent of killing, or at the very least, of harming the victim Cantre. What is obvious to this Court was petitioner Calimutan’s intention to drive away the attacker who was, at that point, the victim Cantre, and to protect his helper Bulalacao who was, as earlier described, much younger and smaller in built than the victim Cantre.35

Granting that petitioner Calimutan was impelled by a lawful objective when he threw the stone at the victim Cantre, his act was committed with inexcusable lack of precaution. He failed to consider that a stone the size of a man’s fist could inflict substantial injury on someone. He also miscalculated his own strength, perhaps unaware, or even completely disbelieving, that he could throw a stone with such force as to seriously injure, or worse, kill someone, at a quite lengthy distance of ten meters.

Since it is irrefragable that the stone thrown by petitioner Calimutan at the victim Cantre was the proximate cause of the latter’s death, despite being done with reckless imprudence rather than with malicious intent, petitioner Calimutan remains civilly liable for such death. This Court, therefore, retains the reward made by the RTC and the Court of Appeals to the heirs of the victim Cantre of the amount of P50,000.00 as civil indemnity for his death and another P50,000.00 as moral damages.

WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CR No. 23306, dated 29 August 2001, affirming the Decision of the RTC in Criminal Case No. 8184, dated 19 November 1998, is hereby MODIFIED. Petitioner Calimutan is found GUILTY beyond reasonable doubt of reckless imprudence resulting in homicide, under Article 365 of the Revised Penal Code, and is accordingly sentenced to imprisonment for a minimum period of 4 months of arresto mayor to a maximum period of two years and one day of prision correccional. Petitioner Calimutan is further ORDERED to pay the heirs of the victim Cantre the amount of P50,000.00 as civil indemnity for the latter’s death and P50,000.00 as moral damages.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

 

G.R. No. 128286 July 20, 1999

PEOPLE OF THE PHILIPPINES, plaintiff, vs.GILBERT BASAO y MACA and PEPE ILIGAN y SALAHAY, accused, PEPE ILIGAN y SALAHAY, accused-appellant.

 

GONZAGA-REYES, J.:

Accused Gilbert Basao y Maca and accused-appellant Pepe Iligan y Salahay were charged before the Regional Trial Court of Tandag, Surigao del Sur, Branch 27 with one (1) count of Robbery and two (2) counts of murder in three separate Informations, viz:

Criminal Case No. C-14:

That on the [14th] day of April 1994 at about 12:10 o'clock in the afternoon, more or less, at the National Highway, barangay (sic) Pag-antayan, municipality (sic) of Cantilan, Province of Surigao Del Sur, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and mutually helping each other, with intent to gain, did, then and there, willfully, unlawfully and feloniously take, steal and carry away from the dead body of P/Insp. Joerlick Faburada and Dra. Arlyn Faburada, the following items, to wit:

One (1) Caliber .45 pistol valued at P20,000.00

One (1) ICOM handset Radio — 9,000.00

One (1) PNPA gold ring — 8,000.00

With a total value of P37,000.00 to the damage and prejudice of the heirs of the victims in the aforestated amount.

CONTRARY TO LAW (In violation of Article 294 of the Revised Penal Code)

Criminal Case No. C-15:

That on the 14th day of April 1994, at 12:10 o'clock in the afternoon, more or less, at the National Highway, barangay (sic) Pag-antayan, municipality (sic) of Cantilan, province of Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court. The above-named accused, conspiring, confederating and mutually helping each other, armed with high-powered firearm, with intent to kill, treachery and evident premeditation, did, then and there, willfully and unlawfully and feloniously assault, attack and shoot Dra. Arlyn Faburada who is four (4) to five (5) months pregnant hitting and inflicting upon the latter, multiple gunshot wounds on her body, which wounds or injuries have caused the instantaneous death of said Dra. Arlyn Faburada, to the damage and prejudice of her heirs in the following amounts:

P50,000.00 — as life indemnity of the victim

10,000. 00 — as moral damages

10,000.00 — as exemplary damages

CONTRARY TO LAW (In violation of Article 248 of the Revised Penal Code), with the presence of the following aggravating circumstances:

1. That the crime was committed with insult or in disregard of the respect due to the offended party on account of her sex and rank being a doctor;

2. There is abuse of superior strength, treachery and evident premeditation;

3. With cruelty by deliberately and inhumanly augmenting the suffering of the victim, outraging or scoffing at her person or corpse.

Criminal Case No. C-16:

That on 14th day of April 1994 at 12:10 o'clock in the afternoon, more or less, at the National Highway, barangay (sic) Pag-antayan, municipality (sic) of Cantilan, province of Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, armed with a high-powered firearm, with intent to kill, treachery and evident premeditation, did, then and there, willfully, unlawfully and feloniously assault and shoot P/Insp. Joerlick Faburada, Chief of Police, Cantilan Police Station, thereby hitting and inflicting upon the latter multiple wounds on his body, which wounds have caused the instantaneous death of said P/Insp. Joerlick Faburada, to the damage and prejudice of his heirs in the following amounts:

P50,000.00 — as life indemnity of the victim

10,000.00 — as moral damages

10,000.00 — as exemplary damages

CONTRARY TO LAW (In violation of Article 248 of the Revised Penal Code), with the presence of the following aggravating circumstances:

1. That the crime was committed with insult or in disregard of the respect due to the offended party on account of his rank being the Chief of Police of the place.

2. There is abuse of superior strength, treachery and evident premeditation.

When Branch 41 of the Regional Trial Court of Cantilan, Surigao del Sur was created and duly organized all of the above-mentioned cases were transferred to it.

On January 13, 1995, Gilbert Basao was arrested while the accused-appellant remained at large. Upon his arraignment on August 3, 1995, accused Gilbert Basao, duly assisted by his counsel entered a plea of "Not Guilty." Thereafter, a separate trial was conducted only as against accused Gilbert Basao of Criminal Cases Nos. C-14, C-15, and C-16.

On August 15, 1996 herein accused-appellant was arrested by the elements of the PNP at the Post Office of Pasay City.

On October 14, 1996, Gilbert Basao y Maca was acquitted 1 by the trial court in all the three charges for robbery and two (2) separate crimes of murder for failure of the prosecution to prove his guilt beyond reasonable doubt. The trial court found that the evidence of the prosecution has miserably failed to establish the identity of the accused in all these three aforementioned cases. The prosecution had also failed to present Reynaldo Angeles and Pastor Ampo, Sr., the letter sender who informed SPO4 Manuel L. Azarcon that Reynaldo Angeles was the person who pawned the ring of the late Lt. Joerlick Faburada. These persons could have shed light as to the identity of the culprit. The affidavit executed by Gilbert Basao during his custodial investigation was likewise found by the trial court to be inadmissible due to certain constitutional infirmities with respect to his right to counsel, to be informed of such rights and the safeguards enshrined under the Constitution whenever an accused is under custodial investigation.

On October 17, 1996, the accused-appellant Pepe Iligan y Salahay, duly assisted by his counsel, entered a plea of "Not Guilty" to the aforementioned charges upon his arraignment before same court which tried these cases against Gilbert Basao.1âwphi1.nêt

The evidence for the prosecution was derived mainly from the testimonies of accused-appellant's co-accused, Gilbert Basao, and Reynaldo Angeles. The testimonies of SPO4 Manuel Azarcon 2 and SPO2 Dominador Plaza 3 at the separate trial of these same cases against Gilbert Basao were reproduced to buttress the evidence for the prosecution against appellant Iligan. Dr. Luciano Ortega, the physician from Cantilan Polymedic Hospital, issued medical certificates 4regarding the post-mortem examinations on the bodies of the victims, the Faburada spouses.

Gilbert Basao testified 5 that from 1993 to 1994, herein accused-appellant used to stay in the house of his uncle, Gabino Maca, at Panday, Sibagat, Agusan del Sur. He knows that the accused-appellant is a member of the Citizens Armed Forces Geographical Unit (CAFGU) assigned at Gacub, Carmen, Surigao del Sur.

Basao recalls that on April 14, 1994 at 9:00 o'clock in the morning, the accused-appellant arrived at the house of his uncle in full CAFGU uniform with an M-16 armalite. The accused-appellant asked him if he could go with him (accused-appellant) to Carrascal for them to "make money". When he (Basao) agreed they both took a jeep from Hinapoyan to Madrid, then from Madrid to Cantilan, Surigao del Sur. They alighted at the Caltex Station Crossing at Cantilan, Surigao del Sur where they proceeded to a waiting shed and herein accused-appellant instructed him to wait for a motorcycle bound for Carrascal. After awhile, the accused-appellant went towards a store just opposite the waiting shed, about 15 meters in distance, to buy some cigarettes. When he hailed an approaching motorcycle, the accused-appellant told him that he still wanted to smoke a cigarette. A few minutes later another motorcycle passed by and he was surprised why the accused-appellant looked at it. When the accused-appellant was about six (6) to eight (8) meter away from the motorcycle, he (accused-appellant) strafed its passengers with his armalite, with more or less 20 bullets, hitting Joerlick Faburada and his wife, Dra. Arlyn Faburada. Dra. Arlyn Faburada, who rode at the back, was thrown on the street while Joerlick Faburada was dragged by the motorcycle until it fell flat on the ground. Joerlick Faburada was then wearing a type "A" Polo shirt police uniform while his wife was wearing a white blouse. After shooting the victims, accused-appellant took one .45 caliber pistol, one ICOM Radio Handset and one PNPA gold ring from the body of Joerlick Faburada. Basao further narrated that herein accused-appellant instructed him to get the motorcycle for their ride but when he was not able to re-start the vehicle, the accused-appellant shouted at him that they will just walk through the coconut plantation and ricefield. Both of them proceeded on foot towards the house of Pastor Pigneo Ampo, accused-appellant's brother-in-law, in Madrid, Surigao del Sur. There, the accused-appellant stayed behind while he (Basao) went to the house of his uncle at Hinapoyan, Carmen, Surigao del Sur before proceeding towards his boarding house in Guingona Subdivision, Butuan City.

Witness Basao also declared in court that on April 19, 1994, the accused-appellant went to his boarding house together with Reynaldo Angeles and asked him (Basao) to pawn the class ring of the victim, which request he refused. Accused-appellant then retorted that Reynaldo Angeles will just be the one to pawn the ring. Reynaldo Angeles pawned the ring at M-Lhuillier Pawnshop for P2,100.00 for which a receipt was issued. Afterwards all three of them proceeded to the Red Apple Bar for a drinking spree. While at the said place, the herein accused-appellant admitted to him (Basao) that he (the

accused-appellant) shot Lt. Faburada and his wife because "he (Lt. Faburada) committed a wrong or "atraso" against me" and as to the victim's wife the accused-appellant said that "what can I do, she rode on the motorcycle with Lt. Joerlick Faburada." However, accused-appellant did not tell him what the wrong or "atraso" was about. He further narrated that Reynaldo Angeles was beside him when the accused-appellant told the story about the death of the Faburada spouses. After they were through with their drinking spree, he (Basao) and Angeles proceeded to their respective homes while the accused-appellant planned to go to Cagayan the following day. He further said that although he is not related to either of the two victims, the reason why he now testified against the accused-appellant is because the death of the Faburada spouses bothered his conscience.

SPO4 Manuel L. Azarcon, the Deputy Chief of Police of Cantilan, Surigao del Sur, testified 6 that on April 14, 1994, a certain Rodrigo Eleazar reported that a policeman and a woman was shot at about 30 to 40 meters from Cantilan Polymedic Hospital and about 1 km. away from Barangay Magasang, where he was conducting a pulong-pulong regarding the forthcoming elections. When he and his men reached the scene of the crime they identified the two dead bodies to be that of Lt. Joerlick Faburada, Chief of Police of Cantilan, and his wife Dra. Arlyn Faburada. In the course of his investigation, he found out that Lt. Faburada's .45 caliber pistol valued at P36,000-40,000, Radio ICOM 02N Handset valued at P9,000 and class ring were all missing. After taking some photographs of the bodies of the victims and finishing the customary police investigation, they brought the bodies of the victims to the Cantilan Polymedic Hospital where the two victims were declared dead on arrival.

Several days later, on April 27, 1994, while Azarcon was at his residence in Lininti-an, Cantilan Surigao del Sur, PO2 Warlito Cale brought to him an envelope containing two (2) handwritten letters of Pastor Martin Ampo, Sr., whom he knew very well for the latter frequently visited Cantilan, Surigao del Sur. There letters revealed that the class ring of Lt. Faburada was pawned by Reynaldo Angeles of Cabadbaran, Agusan del Norte at the M-Lhuillier Pawnshop in Butuan City. He presented the letters to the CIS team headed by S/Insp. Buenaventura A. Mendoza for evaluation. On April 29, 1994, as per instruction in the letter, he (SPO4 Azarcon) and the CIS team of S/Insp. Mendoza proceeded directly to the 7th day Adventist Church in Cabadbaran where they met Martin Ampo, Sr. The latter told them that Reynaldo Angeles also stayed in the same compound. Martin Ampo, Sr. called Reynaldo Angeles, who confirmed that the accused-appellant and Gilbert Basao were the ones who told him to pawn the class ring of the victim in Butuan City. They then proceeded to the M-Lhuillier Pawnshop together with Angeles and redeemed the class ring for P2,000 for which a receipt was issued (Exhibit G).

Witness Reynaldo Angeles, whose wife is the first cousin of the wife of the accused-appellant, identified Gilbert Basao as his classmate since his elementary grades. He testified 7 that for two (2) years from 1992, accused-appellant has been engaged in logging activities at their place at Padiay, Sibagat, Agusan del Sur. On April 19, 1994 at about 3:00 o'clock in the afternoon, Basao and accused-appellant went to his apartment at Montegrande Km. 3, Baan, Butuan City; accused-appellant asked him to accompany them (Basao and herein accused-appellant) to downtown Butuan City. When they (Angeles, Basao and herein accused-appellant) had reached the place, the accused-appellant asked him "brod I have a ring you will pawn this and you will be the one to sign the receipt," and he acceded to the request. He pawned the ring at the M-Lhuillier Pawnshop for P2,100.00 for which a corresponding receipt was issued. After receiving the said amount, all of them proceeded to the Red Apple in Butuan City to drink beer. There, he said, the accused-appellant admitted to him that he (accused-appellant) shot Lt. Joerlick Faburada, the owner of the ring he pawned, with his M-16 rifle because Lt. Faburada is very strict in enforcing the laws against illegal logging. The accused-appellant also admitted shooting Dra. Arlyn Faburada, the wife of Lt. Faburada, because after the motorcycle turned turtle Dra. Faburada tried to crawl to get the .45 caliber of her husband.

Witness Angeles confirmed the testimony of Azarcon that on April 29, 1994, while he was at Quarry 7th Day Adventist Church, Cabadbaran, Agusan del Norte, Boy Azarcon, together with Captain Mendoza and his men asked him if he was really the one who pawned the ring of Lt. Faburada and he replied that he was merely requested by two persons to pawn the ring at the M-Lhuillier Pawnshop. Afterwards, all of them went to Butuan City and redeemed the ring from the pawnshop. He also admitted having executed a sworn statement 8 on April 29, 1994 taken by a police officer of Cantilan in connection with this case.

On cross-examination, Angeles testified, 9 among others, that when Basao and the accused-appellant went to his apartment at Montegrande Km. 3 Baan, Butuan City, he did not know the main purpose of their visit; that it was the accused-appellant who invited him to go to Butuan City; that he noticed that the letters "PNPA" were engraved in the outer portion of the ring; that he was requested by Basao and the accused-appellant to pawned the ring; and that when he pawned the ring at the M-Lhuillier Pawnshop "he thought that the gold ring came from a good source."

On re-direct examination, Angeles declared that when he redeemed the ring at the M-Lhuillier Pawnshop together with the CIS team, he saw that the ring had an inner marking of "Joerlick Faburada." He also stated that even if the accused-appellant is related to his wife, being first cousins, he is not afraid to give a statement against the accused-appellant because nobody forced him to testify against the latter and it was his own decision to do so.

SPO2 Dominador Plaza, the Police Community Relations Officer and Investigator of Cantilan Police Station, testified 10 that Lt. Joerlick Faburada is their Chief of Police in Cantilan; that there were many people who got mad at the latter because of his strict implementation of the law especially in illegal logging, illegal possession of firearms and others;11 and that the latter did not assent to any negotiations with respect thereto. In fact an anonymous letter sent to the office of the mayor, petitioned for the ouster of Lt. Joerlick Faburada because the latter allegedly caused the spread of pest or cholera in their town.

Accused-appellant Pepe Iligan put up the defense of denial and alibi.

The accused-appellant controverted the evidences against him by denying the same. He denied the following, to wit: 12 that he knows the two victims, Joerlick Faburada and Dra. Faburada; 13 that he knows Gilbert Basao and that he has seen the latter on April 14, 1994; 14 that he is related to Reynaldo Angeles; he also denied that he saw Angeles during the month of April 1994; 15 that he was in the house of Angeles at Baan, Agusan del Sur on April 19, 1994; 16 that he requested Angeles to pawn a ring for him; 17 that he was with Basao when Angeles pawned the ring of Lt. Faburada at the Lhuillier Pawnshop, and that he had a drinking spree with them afterwards; 18 that he told a story to Angeles that he personally shot Lt. Joerlick Faburada with an armalite rifle; 19 and that he has ever been in possession of an armalite rifle not in M16, M14 or an ever rifle. 20

Accused-appellant's defense or alibi hinges on his claim that on April 14, 1994 he was on duty as a CAFGU in a detachment in Gacub the whole day. Before he was arrested on August 16, 1996 at a Post Office in Pasay City, he went to Canlubang, Palao Village to work so that he can help his brothers and sisters. At the time of his arrest, he was informed by the arresting officer that a case was filed against him. He only learned about the case when the arresting officer brought him to the police station where he denied that he committed it.

On cross-examination, 21 accused-appellant testified that he was a CAFGU member assigned at the 67th Infantry Battalion; that although there were M-16 armalite rifles in said infantry battalion he was only issued a garand rifle; that from the time he became a CAFGU member in 1993 to the time he was dropped from the rolls he never went to the 67th Infantry Battalion; that he was dropped from the rolls as a CAFGU in the year 1994 due to the pendency of these cases against him, and that he did not surrender to the authorities because he was afraid that he might be shot; that he met Reynaldo Angeles in Kolambugan, Agusan del Sur when he stayed there for 6 months; and stated that he knows the wife of Angeles because the wife of Angeles is the first cousin of his (accused-appellant) wife; that he does not know why Angeles testified against him for there was no instance when he

filed a case against the latter nor that the latter filed a case against him; contrary to his earlier denial he admitted that he knew Gilbert Basao when he was at Padiay, Agusan del Sur in 1992 and that the latter resides in Butuan City because Basao studies in that place.

To corroborate the accused-appellant's alibi, the defense presented the testimony of Alfredo Yagao, who for three years was the Barangay Captain of Hinapoyan, Carmen, Surigao del Sur. Yagao testified 22 that he knew the accused-appellant to be a resident of Sitio Gacub, Hinapoyan, Carmen, Surigao del Sur. On April 14, 1994, he was in Gacub hauling bananas from morning to afternoon where other people, some of whom were CAFGU's, were also present. He saw accused-appellant at the waiting shed, the place where bananas were stocked. The accused-appellant was with five (5) companions and when he asked them where they were going they answered that they were just roaming. He also testified that accused-appellant was still at the waiting shed when he left in the afternoon.

On cross-examination, 23 Yagao testified that the accused-appellant is a CAFGU member of the 67th Infantry Battalion; that on April 14, 1994 he saw herein accused-appellant carrying a long firearm, and was then accompanied by several CAFGU members; that he arrived at the waiting shed at 8:00 o'clock in the morning to haul bananas and left the place at 4:00 o'clock in the afternoon.

The trial court found the accused-appellant guilty reasonable doubt of two counts of Murder and one (1) count of Robbery. It opined that the accused-appellant really intended to kill Lt. Faburada and not to go to Carrascal, Surigao del Sur contrary to what he originally told Gilbert Basao. The court, taking note of the fact that Angeles and the accused-appellant are in-laws whose wives are first cousins and that the accused-appellant has influence over Angeles by reason of his being a CAFGU member, relied on the testimony of Reynaldo Angeles that it was the accused-appellant who requested him (Angeles) to pawn the ring of Lt. Joerlick Faburada. It also found that the motive of accused-appellant in killing Lt. Faburada was due to the latter's very strict enforcement of the laws particularly on illegal logging and took judicial notice of the fact that the municipalities of Cantilan, Carrascal, Madrid, Carmen and Lanuza fall within the territorial jurisdiction of RTC, Branch 41 and are gifted with abundant virgin forest. The trial court rejected the defense of denial and alibi and did not give probative value to the testimony of Alfredo Yagao, the defense witness, considering that during the preliminary investigation against Gilbert Basao and herein accused-appellant, Yagao claimed in his affidavit that on April 14, 1994 he was at Gacub at 12:00 o'clock up to 1:00 o'clock p.m. while during his direct testimony, Yagao testified that he was at Gacub, Hinapoyan, Carmen Surigao del Sur from 8:00 o'clock a.m. up to 4:00 o'clock p.m. and saw

accused-appellant and his five (5) companions without mentioning Gilbert Basao.

The dispositive portion of the judgment reads:

WHEREFORE, in view of all the foregoing considerations, this Court finds:

a) In Criminal Case No. C-14, accused Pepe Iligan y Salahay, guilty beyond reasonable doubt of the crime of Robbery as defined and penalized under paragraph 5 of Article 294 of the Revised Penal Code, there being no aggravating nor mitigating circumstances and applying the indeterminate sentence law, he is hereby sentenced to suffer an imprisonment ranging from four (4) years two (2) months and one (1) day of Prision Correccional as minimum to eight (8) years and One day of Prision Mayor as maximum. to pay the victim through the heirs of Lt. Joerlick Faburada the sum of P37,000.00 without subsidiary imprisonment in case of insolvency and to pay the cost. Being detained, he is credited in the service of his sentence with the full term of his preventive imprisonment, if he agreed in writing to abide by the disciplinary rules imposed upon convicted prisoners, otherwise 4/5 hereof.

b) In Criminal Case No. C-15, accused Pepe Iligan y Salahay, guilty beyond reasonable doubt of the crime of Murder qualified by treachery as defined and penalized under Article 248 of the Revised Penal Code as amended and amended by Section 6 of the Republic Act No. 7659, is hereby sentenced to the maximum penalty of death. To pay the heirs of the heirs of the victim Dra. Arlyn Faburada, the sum of P50,000.00 as life indemnity of the victim; P100,000.00 for burial and actual expenses; P500,000.00 for moral damages and P10,000.00 for exemplary damages and to pay the cost.

c) In Criminal Case No. C-16, accused Pepe Iligan y Salahay, guilty beyond reasonable doubt of the crime of Murder qualified by treachery defined and penalized under Article 248 of the Revised Penal Code as amended and amended by Section 6 of Republic Act No. 7659, is hereby sentenced to the maximum penalty of death. To pay the heirs of the victim Lt. Joerlick Faburada the sum of P50,000.00 as life indemnity of the victim; P100,000.00 for

burial and actual expenses; P500,000.00 for moral damages and P10,000.00 for exemplary damages and to pay the cost.

Pursuant to Section 22 of Republic Act No. 7659, let the criminal records in criminal cases nos. C-15 and C-16 be forwarded to the Supreme Court of the Philippines for automatic review within twenty (20) days but not earlier that fifteen days after the promulgation of these judgments.

The Director of Prisons, New Bilibid Prisons, Muntinlupa City through the Provincial Warden of Surigao del Sur is ordered to take immediate custody of the convicted prisoner.

SO ORDERED. 24

The accused-appellant raises the following assignment of errors in his brief:

I

THE TRIAL COURT COMMITTED GRAVE ERROR IN ADMITTING IN EVIDENCE THE TESTIMONY OF GILBERT BASAO AS A WITNESS FOR THE PROSECUTION.

II

THE TRIAL COURT COMMITTED GRAVE ERROR IN RELYING ON THE TESTIMONY OF REYNALDO ANGELES.

We find this appeal unmeritorious.

Our examination of the evidence convinces us that the trial court correctly relied on the testimony of Gilbert Basao which positively established that herein accused-appellant shot the Faburada spouses with an armalite rifle as they were riding tandem on a motorcycle in the afternoon of April 14, 1994; Lt. Faburada sustained 18 gunshot wounds 25 on his face and several parts of his body, and he was dragged by the motorcycle as it turned turtle. His wife Dra. Arlyn Faburada, then four (4) months pregnant, was thrown off the motorcycle and also sustained nine (9) gunshots wounds,26 and when she attempted to reach her husband's firearm the latter was again shot by herein accused-appellant 27. Afterwards the accused-appellant took away Lt. Joerlick Faburada's "PNPA" gold ring, one .45 caliber pistol and the latter's radio handset.

It has been a time tested doctrine that a trial court's assessment of the credibility of a witness is entitled to great weight — even conclusive and binding if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence as in this case. 28 For the determination of credibility is the domain of the trial court, and the matter of assigning values to the testimonies of witnesses is best performed by it 29 which had the opportunity to observe the demeanor of the witnesses and is in a better position to evaluate their testimonies. 30 Thus, 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. 31 In the case at bar, we find no cogent justification to depart from long standing jurisprudence.1âwphi1.nêt

In support of his first assigned error, the accused-appellant imputes inconsistencies to the testimony of Gilbert Basao. He avers that Gilbert Basao's testimony was a complete turn-around from his previous testimonies in the trial of the cases against him; and when Gilbert Basao was on the witness stand during his own trial for these same offenses of murder and robbery, he vehemently denied having had something to do with the ambush-slaying of Joerlick Faburada and his wife on April 14, 1994.

We are not convinced that there are such contradictions. Accused-appellant failed to point out specific contradictory statements to support his contention. The records show that the defense counsel had the opportunity, in the course of Basao's cross-examination, to confront said witness with his alleged inconsistent statements and utilize the same to discredit his testimony. During the cross-examination of witness Basao, the counsel for the defense only argued with the witness as regards the reason for the latter's acquittal. Thereafter, the defense counsel voluntarily waive his right to further cross-examine the said witness with respect to particular points of his testimony 32 which herein accused-appellant now points to this Court as a complete turn-around from said witness' previous testimony before the same court.

Where an allegedly inconsistent statement was not related to the witness during cross-examination and was never asked to explain the same, it cannot later be used to discredit his entire testimony. 33 For failure to raise the same when the time was ripe to do so, the defense has defaulted and waived its right to discredit the testimony of Basao. We have examined carefully the transcripts but we fail to find any material inconsistency in the testimony of Gilbert Basao that would impair his credibility and render his testimony unworthy of credence.

Notwithstanding the defense counsel's voluntary waiver to further cross-examine Basao, the trial court conducted its own searching questions of the latter. Despite the questions posed, Basao remained steadfast in relating his

eyewitness account of the events that transpired before, during and after the incident when accused-appellant successfully carried out his criminal design to kill Lt. Faburada. Thus:

COURT TO THE WITNESS:

Q After that .45 caliber pistol was taken from the body of Lt. Faburada, one ICOM Radio Handset and a class ring, who carried those items?

A Pepe Iligan.

Q When you arrived at Madrid was Pepe Iligan still holding these articles?

A Yes, sir.

Q When you parted ways according to you, you went home at 9:00 o'clock in the morning, where were these articles, 1 .45 caliber pistol, 1 ICOM Radio Handset and a class ring?

A Pepe Iligan.

Q Considering that you were two (2) at the time when these articles were taken, did you not asked (sic) for your share?

A No, sir because I did not know the purpose when that was taken.

Q The next time when you saw him at Guingona Subdivision at Butuan City did you see that caliber .45 pistol, ICOM Radio Handset, and the class ring?

A No, sir.

Q What did you find?

A Only a ring.

Q Do you have any knowledge if the caliber .45 pistol was also pawned by Pepe Iligan?

A No, sir.

Q Did he not tell you about the ICOM Radio Handset and the caliber .45 pistol?

A No, sir.

Q Tell the court frankly, how did you know that the gun which was taken from Lt. Faburada is caliber .45?

A I saw it when we were walking.

Q Where did he placed (sic) that .45 caliber pistol?

A At his waist.

Q How about the ICOM Radio Handset?

A At his waist also.

Q You testified that Lt. Faburada was shot 6 to 8 meters away from Pepe Iligan, what was the position of Pepe Iligan when he shot Lt. Faburada?

A He was facing and pointing his gun to Lt. Faburada.

Q What position, please demonstrate?

A (Witness was pointing his firearm in horizontal position the barrel directing towards the victim.)

Q When Pepe Iligan visited you at Guingona Subdivision Butuan City did you have an

agreement that you will proceed to Butuan City and he will follow?

A No, sir. I was even surprised why he arrived there.

Q In that morning on April 14, 1994 when he came to your house and invited you to go to Carrascal, did he tell you the purpose in going to Carrascal?

A He told me that maybe we can make money in Carrascal.

Q From what source if you can remember, tell the Court?

A He told me he is a former worker at Ventura Timber Company he might me[e]t (sic) his friends working at Ventura.

Q Tell the Court at the time when you left your place, did you plan to kill Dra. Arlyn Faburada and Lt. Joerlick Faburada?

A No, sir.

Q The Court observed you the way you talk, and testified I am convinced that you are a friend of Pepe Iligan, is that correct?

A Yes, sir.

Q Did Pepe Iligan confided (sic) to you that he will kill somebody that is why you accompany him?

A No, sir because if he told me I will not accompany him.

Q When you arrived at Cantilan and stop at Caltex, did you not notice his unusual doing?

A No, sir.

Q Were you not surprised why he was fully armed?

A No, sir because I know he was a CAFGU.

Q Was it the first time he was in uniform?

A Yes, sir.

Q What prompted you to testify against him considering that he is your friend?

A I was bothered by my conscience that Lt. Joerlick Faburada and Dra. Arlyn Faburada will not be given justice.

Q That amount which was the proceeds of pawned ring, how much is your share?

A He did not give me because I did not asked for it.

Q Did not your friend told you that the reason he shot Faburada and his wife as a consequence because he was hired by somebody to kill Faburada?

A No, sir.

I have no more questions. 34

Even though Basao may have deliberately failed to immediately reveal or disclose accused-appellant's identify when these cases were tried against him, it is settled that such delay does not, by itself, render such testimony less worthy of credence 35 especially where possible retaliation from the accused could not be dismissed as merely fanciful, since at that time accused-appellant was still at large. If the Law and the rules of procedure do not prohibit an accused who has been found guilty of a crime from qualifying as a witness, there is no reason why Basao should be disqualified from testifying against his co-accused because of his acquittal. We find no reason to doubt the narration of Basao, who was present when the shooting

occurred identifying herein accused-appellant as the one responsible for the death of the Faburada spouses.

Reynaldo Angeles corroborated Basao's testimony; Angeles pawned the ring of Lt. Faburada upon the request of the accused-appellant, who subsequently admitted to him that he fired at the Faburada spouses.

Under the second assignment of error, accused-appellant contends that the signature of Reynaldo Angeles in the pawn ticket and in the redemption receipt discredits the prosecution's claim that accused-appellant is the possessor of the ring and that he asked Angeles to pawn the same.

We are not persuaded. In light of the testimony of witness Angeles satisfactorily explaining his possession of the pawned ring, as corroborated by the testimony of witness Basao, the contention of herein accused-appellant cannot be believed. Other than accused-appellant's bare denials, no satisfactory explanation or evidence was offered to controvert the positive testimonies of witnesses Basao and Angeles before the trial court. As between the categorical testimony which has a ring of truth on one hand and a bare denial on the other, the former is generally held to prevail. 36 Accordingly, the positive testimony of Angeles that the ring came from herein accused-appellant; and that Angeles was just asked by the latter to pawn the ring must be upheld. At the witness stand, Angeles was resolute in pointing to herein accused-appellant as the source of the ring he pawned at the M-Lhuillier Pawnshop, viz.:

DIRECT EXAMINATION

ATTY. CAÑEDO:

xxx xxx xxx

Q You said that you were requested by who?

A Pepe Iligan.

Q Now, please tell this Honorable Court what was then the reason why you were merely requested by Pepe Iligan to go with them to Butuan City?

A When I was still in the apartment I do not know what was their purpose.

COURT

Q You said you personally know Pepe Iligan, how were you introduced with them when they arrived at Padiay, Sibagat, Agusan del Sur?

A I was introduced by my wife.

Q Why, is your wife related to Pepe Iligan?

A Yes, sir.

Q Does Pepe Iligan usually go to your house at Padiay, Sibagat, Agusan del Sur?

A He always go there in the year 1992.

Q What is the relationship of your wife and Pepe Iligan, if you know?

A Maybe they were first cousins or third cousins because they have the same family name.

Proceed

ATTY. CAÑEDO

xxx xxx xxx

Q When you arrived in Butuan City at about 3:30 o'clock in the afternoon, what happened?

A We arrived at Butuan City, Pepe Iligan gave me a ring and asked me "brod I have a ring you will pawn this and you will be the one to sign the receipt".

Q Did you agree with the request of Pepe Iligan to pawn the ring?

A Yes, sir.

Q In what pawnshop did you pawn the ring?

A M-Lhuillier Pawnshop.

Q Showing to you that particular ring can you still identify it?

A Yes, sir.

ATTY. CAÑEDO

I would request your honor that aside from this ring there will be other ring shown to this Witness so that to avoid further objection from the Defense.

xxx xxx xxx

ATTY. CAÑEDO

Q We are now showing to you Mr. Angeles a ring will you please try to examine this and tell this Honorable Court what relation has this ring to the ring you mentioned earlier that was pawn[ed] at M-Lhuillier Pawnshop in Butuan City?

(Witness is trying to examine the ring by looking at the front side and the inner side of the ring).

A This is the ring.

COURT

Q Why did you know that, that is the said ring that you pawn in M-Lhuillier Pawnshop, Butuan City?

A there is a marking inside and the outside.

Q What is the marking inside?

A Joerlick Faburada.

Proceed.

ATTY. CAÑEDO

Q How about the markings outside?

A PNP Academy.

xxx xxx xxx 37

CROSS EXAMINATION

COURT

Q Who invited you to go to Butuan City?

A Pepe Iligan.

Proceed.

ATTY. ARREZA

Q When Pepe Iligan invited you to Butuan City, Gilbert Basao did not say anything?

A No, sir.

Q Did Gilbert Basao followed (sic) you and Pepe Iligan to Butuan City?

A Yes, sir.

Q And when you reached Butuan City you went to M-Lhuillier Pawnshop, am I right?

A Yes, sir.

xxx xxx xxx

Q Up to the last minute when you were already in the pawnshop Gilbert Basao did not say anything?

A No, sir.

Q Because only as a matter of fact it was only Pepe Iligan [who] talked to you?

A Yes, sir.

Q And he did not say any word about the ring?

A Yes, sir.

Q And it was you who did the talking about the pawning?

A Yes, sir.

Q So you controlled the whole transactions?

A No, sir, when it comes to the pawning I was the one who pawn[ed] the ring.

COURT

Q And where did that ring come from?

A Pepe Iligan.

Proceed.

ATTY. ARREZA

Q And Pepe Iligan did not say anything when you told him that who is the owner?

A No, sir.

Q And you did not try to see the inner inscription of the ring?

A No, sir.

Q And you did not also notice that in the outer portion of the ring there is a PNPA engrave[d] in that ring?

A Of course I read it.

COURT

Q When you say of course "I read [it"] what have you have seen"

A PNP Academy.

Q How about inside the ring?

A I did not see the inscription of the engrave where I pawn the ring.

Proceed. 38

RE-DIRECT EXAMINATION

ATTY. CAÑEDO

Q Mr. Reynaldo Angeles a while a go you said that when you were asked by the counsel of the Defense you said you were able to see and read the markings outside in this ring and identified by you as the ring pawned by you at M-Lhuillier Pawnshop, now please tell the Court at what point of time you were able to see and read the inner markings of this ring.

ATTY. ARREZA

Objection, your honor that is misleading?

COURT

Objection overruled, Witness may answer.

WITNESS

A At the time when we already redeemed the ring together with the CIS team.

ATTY. CAÑEDO

Q What have you read in the inner marking.

A Joerlick Faburada. 39

Angeles thus positively identified the accused-appellant as the person who gave the ring to him and who asked him to pawn the same ring of the late Lt. Joerlick Faburada.

The accused-appellant failed to convincingly ascribe any ill-motive on the part of Angeles, well enough to truly make him fabricate such a serious imputation as that recited in his testimony. The defense counsel, even the accused-appellant himself, could not impute any improper motive to the said witness during the trial which might have impelled him to testify falsely, thus:

Q And in fact you were also testif[y]ing Mr. witness for the passed (sic) 6 months you never had a quarrel with Reynaldo Angeles, is that correct?

A No sir.

Q And in fact Mr. Pepe Iligan up to the very time that Reynaldo Angeles testified here in open Court that you were the one who requested to pawn the ring to the pawnshop, the ring of Joerlick Faburada and you never have an alter[c]ation with Reynaldo Angeles, is that correct?

A No sir.

Q Do you know the wife of Reynaldo Angeles?

A Yes sir.

Q What is the name of the wife of Reynaldo Angeles?

A I forgot the name.

Q And in fact Mr. Witness you will agree with me that the wife of Reynaldo Angeles is related to your wife?

A Yes sir.

Q What is the relation of your wife to the wife of Reynaldo Angeles?

A The mother of the wife of Reynaldo Angeles is the brother of the father of my wife.

Q In short your wife and the wife of Reynaldo Angeles is first degree cousin?

A Yes sir.

Q From the very time you were with Reynaldo Angeles at brgy. Kolambugan, Agusan del Sur up to the very time when Reynaldo Angeles pinpointed (to) you as the person who requested to pawn the ring to the pawnshop is it not the wife of Reynaldo Angeles has a good relation to your wife?

A Yes sir.

Q In fact Mr. Pepe Iligan you cannot remember of any incident that your wife and the wife of Reynaldo Angeles quarreled?

A No sir.

Q How about your family and the family of Reynaldo Angeles, like the parents of your wife and the parents of the wife of Reynaldo Angeles, do you know if they quarreled?

A No sir.

Q So that when Reynaldo Angeles testified here, you will agree that there was no alter(c)ation why he pointed (to) you as the person who requested him to pawn the ring, is that correct?

A I did not know why he pointed (to) me because I have not done wrong.

Q Was there any incident that you filed a case against Reynaldo Angeles?

A No sir.

Q There was an incident that Reynaldo Angeles filed a case against you?

A No sir. 40

Angeles' testimony is entitled to credence.

The trial court also correctly held that the defense of denial and alibi failed to pass the test of credibility. Accused-appellant failed to prove that his presence at the place of the crime at the time it was committed was physically impossible. 41 Alibi was not convincingly established.

First, accused-appellant's testimony that on April 14, 1994, the date when the crime took place, he was on duty the whole day in a detachment in Gacub, Carmen, Surigao del Sur was not sufficient. Although alibi, like denial, is inherently weak and can be easily fabricated, 42 it could also serve as basis for an acquittal if it could really be shown by clear and convincing evidence that it was indeed physically impossible for him to be at the crime scene at that time. 43 In this case, the accused-appellant did not even reveal whether or not he had companions when he was on duty, who could support his claim. There was no corroborative evidence (i.e., assignment order, log book showing time report and discharge, testimony of a superior or other persons also assigned in said place, etc.) to substantiate his claim that he was indeed in Gacub the whole day. Accused-appellant's failure to present witnesses who could have supported his claim tends to show that they would not have corroborated his allegations had they testified. 44

Moreover, accused-appellant failed to prove that the distance between Gacub and the crime scene made it physically impossible for him to be locus criminis at the time of its commission. For alibi to offset the evidence of the prosecution demonstrating the guilt of an accused-appellant, the latter must establish not only that he was somewhere else when the crime was committed but also that it was physically impossible for him to have been scene of the crime at the time it was committed. 45 It is not enough that the appellant allege that he was somewhere else when the offense was committed for the requisites of time and place must be strictly met. 46 Accordingly, accused-appellant's bare assertions cannot prevail over the positive testimony of the prosecution's principal witness, Gilbert Basao. For as between the self-serving testimony of the accused and the positive identification by the prosecution witness, the latter deserves greater credence. 47

The testimony of Alfredo Yagao fails to impress us. As observed by the trial court, Alfredo Yagao offered conflicting statements before the court. In his affidavit submitted during preliminary investigation against Gilbert Basao and the herein accused-appellant, he claimed that he was at Gacub, Hinapoyan, Carmen Surigao Del Sur from 12:00 o'clock up to 1:00 o'clock in the afternoon while in his direct testimony given in open court he testified that he was in Gacub from 8:00 o'clock a.m. up to 4:00 o'clock p.m. where he still saw herein accused-appellant and his five companions. 48 Such omission in the affidavit referred to a material point in accused-appellant's defense of alibi that one relating as an eyewitness would not be expected to fail to mention. In such a case, both sworn statements, before the court and in the affidavit, being contradictory statements impeaches Yagao's own credibility. 49

Finally, the Court notes that on direct examination, the accused-appellant claimed that he only learned about these cases when he was arrested in 1996. 50 However, upon his cross-examination, he said that he was asked to surrender his firearm by the Cadreman at the 67th Infantry Battalion and was dropped from the rolls of the CAFGU's in 1994 due to the pendency of these cases against him; that when he went to Canlubang, Manila he was already aware of these cases against him and he did not surrender to the authorities for fear of being shot by them. 51 It would appear that after he was charged for these offenses on August 30, 1994, he became a "fugitive from justice," i.e. one who after being charged, flees to avoid prosecution. 52 It is well-entrenched doctrine that an accused's flight from the scene of the crime and his act of hiding himself until he was arrested are circumstances highly indicative of his guilt, for as has been wisely said, the wicked flee even when no man pursueth but the righteous are as bold as a lion. 53 For a truly innocent person would normally grasp the first opportunity to defend himself and to assert his innocence over a crime imputed against him. 54

For the death of Lt. Joerlick Faburada, subject of Criminal Case No. C-16, and Dra. Arlyn Faburada, subject of Criminal Case No. C-15, the crime committed was murder qualified by treachery or alevosia.

Treachery exists "when the offender commits any of the crimes against 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 any defense which the offended party might make." 55 Settled is the rule that an unexpected and sudden attack under circumstances which render the victim unable and unprepared to defend himself by reason of the suddenness and severity of the attack, constitutes alevosia. 56 Alevosia is taken into account, even if the deceased was face to face with his assailant(s), when the attack was so sudden and unexpected that the victim was not in a position to offer an effective defense. 57 In the instant case, the accused-appellant attacked Lt. Faburada while the latter was manning his motorcycle which he (Lt. Faburada) and his wife was riding. When the accused-appellant was only about "six (6) to eight (8) meters away" 58 from the speeding motorcycle he suddenly strafed them with his armalite rifle, attacking the Faburada spouses while they were not in any position to offer an effective defense against their aggressor. Both of these victims were completely oblivious of any possible harm the accused-appellant would inflict upon them.

The aggravating circumstance of treachery, in Criminal Case No. C-15, was also properly appreciated by the trial court in the death of Dra. Arlyn Faburada, the wife of Lt. Joerlick Faburada. For even assuming that accused-appellant only intended to kill Lt. Joerlick Faburada, the treacherous nature of the attack was made in continuous aggression that cannot be broken up to constitute a separate, distinct and independent attack. The settled rule is that in order to appreciate treachery in continuous aggression, the same must be shown present at the inception of the attack, as in this case. 59 Assuming that the real object of the assault is Lt. Faburada and that the death of Arlyn was purely accidental as a result of the accused-appellant's firing of his M-16 rifle, it does not modify the nature of the crime nor lessen accused-appellant's criminal liability under Article 4 paragraph 1 of the Revised Penal Code, to wit:

Art. 4. Criminal Liability. — Criminal Liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended.

Our ruling in People v. Guevarra, 60 is instructive:

The crime committed by the appellant is murder qualified by treachery. When he shot the victim, appellant was well hidden behind a tree that the victim, who was unarmed and unaware, had no way of defending himself. Thus, appellant employed means, methods or forms to insure the execution of the crime, without risk to himself.

As the appellant committed the act with intent to kill and with treachery, the purely accidental circumstance that as a result of the shots a person other than the one intended was killed, does not modify the nature of the crime nor lessen his criminal responsibility, and he is responsible for the consequences of his acts. 61

The qualifying circumstance of treachery may be properly considered, even when the victim of the attack was not the one whom the defendant intended to kill, if it appears from the evidence that neither of the two persons could in any manner put up defense against the attack or become aware of it. 62

Also in People vs. Trinidad, 63 we have held that treachery attended the commission of the felony even though the victim of the attack was not the person whom accused-appellant intended to kill, thus:

That another person, and not the victim, was the intended victim is not incompatible with the existence of treachery. Treachery may be taken into account even if the victim of the attack was not the person whom the accused intended to kill.

We, however, disagree with the finding of the trial court that the aggravating circumstance of evident premeditation attended the killing of the Faburada spouses. Despite the established fact that the victims were suddenly attacked, while riding a motorcycle without the victims having an opportunity to defend themselves from such sudden attack, the prosecution was not able to prove with clear and convincing evidence that the aggravating circumstance of evident premeditation also attended the commission of the crime in both Criminal Cases Nos. C-15 and C-16. This aggravating circumstance cannot be used to increase the penalty as the prosecution failed to show when accused-appellant meditate and reflected upon his decision to kill the victim and the intervening time that elapsed before this plan was carried out. The records and the transcripts of stenographic notes are barren of positive evidence of any prior reflection on, followed after some time by persistence in, the criminal resolution of the herein accused-

appellant. Evident premeditation exists when the following requisites are present:

1. The time when the offender determined to commit the crime;

2. An act manifestly indicating that the culprit has clung to his determination;

3. A sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act. 64

While the motive for the commission of the crime may be duly established it does not constitute sufficient ground to consider the existence of evident premeditation. 65 Motive may be used to indicate the time when the offender determined to commit the crime and the outward act manifestly indicating that the culprit has clung to such determination. However, the fact of motive alone is not sufficient to prove the most important element, the third element proof that sufficient lapse of time between the determination and the execution intervened to allow the offender to reflect on the consequences of his act.

To warrant a finding of evident premeditation, it must appear not only that the accused decided to commit the crime prior to the moment of its execution but also that this decision was the result of meditation, calculation, reflection, or persistent attempt. 66 In the case at bar, no evidence was presented regarding the time when the accused-appellant planned to kill the victim, and to show that he clung to his determination to kill the deceased, and that sufficient time had elapsed between the determination and execution of the crime to allow his conscience to overcome the resolution of his will. Settled is the rule that when it is not shown as to how and when the plan to kill was hatched or what time had elapsed before it was carried out, evident premeditation cannot be considered. 67

The aggravating circumstance of abuse of superior strength alleged in the aforementioned two Informations for the death of the spouses Faburada is already absorbed in the qualifying circumstance of alevosia or treachery so the same need not be appreciated separately. 68

The aggravating circumstance of "cruelty by deliberately and inhumanly augmenting the suffering of the victim, outraging or scoffing at his/her person," cannot be appreciated, in both Criminal Cases Nos. C-15 and C-16, for lack of sufficient basis in the evidence. Cruelty as an aggravating circumstance cannot be appreciated in the absence of any showing that

herein accused-appellant, for his pleasure and satisfaction, caused the victim to suffer slowly and painfully and inflicted on him unnecessary physical and moral pain. 69 The test in appreciating cruelty as an aggravating circumstance is whether the accused-appellant deliberately and sadistically augmented the wrong by causing another wrong not necessary for its commission or inhumanly increased the victim's suffering or outraged or scoffed at his person or corpse. 70

The specific aggravating circumstance of "with insult or in disregard of the rank of the offended party" alleged in Criminal Cases Nos. C-15 and C-16 is, likewise, unavailing in both cases. The prosecution failed to establish proof of the specific facts demonstrating that the accused-appellant's act of killing Lt. Joerlick Faburada and Dra. Arlyn Faburada was deliberately intended to disregard or insult the respect due them on account of their rank, age, or sex. Although the trial court found that herein accused-appellant's act of killing the deceased Lt. Joerlick Faburada was motivated by his resentment at the latter's strict enforcement of the laws nonetheless, motive alone is not sufficient to show that herein accused-appellant deliberately intended to offend or insult the rank of the victim. It is essential that the deliberate intent to offend or insult the rank of the victim must be shown. 71 The aggravating circumstance of with insult or in disregard due to rank is appreciated against an accused only when there is proof of fact of disregard and deliberate intent to insult the rank of the victim. 72 For the circumstances aggravating the penalty of an offense must be proved as conclusively as the act itself, mere suppositions or presumptions being insufficient to established their presence. 73

Likewise in Criminal Case No. C-15, for the death of Dra. Arlyn Faburada, the same aggravating circumstance cannot be appreciated since no intent was established to demonstrate that the accused-appellant inflicted such harm by reason of her being a physician or her relative position in civil or social life as a physician. For the aggravating circumstance of "with insult or in disregard of the respect due the offended party on account of his rank, age, or sex" to be appreciated, intent to deliberately cause injury by reason of the rank, age, or sex of the victim must be indubitably established. 74

We, therefore, find reason to reduce the death sentences imposed by the trial court in Criminal Cases Nos. C-15, for the death of Dra. Arlyn Faburada, and C-16, for the death of Lt. Joerlick Faburada. Murder is punishable under Article 248(1) of the Revised Penal Code, as amended by R.A. 7659, which provides:

Art. 248. Murder. — Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua to death

if committed with any of the following attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or means of persons to insure or afford impunity.

2. . . . .

3. . . . .

4. . . . .

5. . . . .

6. . . . .

In consonance with Article 63 of the Revised Penal Code, the absence of any aggravating or mitigating circumstance justifies the application of a lesser penalty, thus:

Art. 63. Rules for the application of indivisible penalties.

xxx xxx xxx

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof:

1. . . . .

2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied.

3. . . . .

4. . . . .

Accordingly, the penalty of reclusion perpetua, not death, should be meted upon herein accused-appellant in both Criminal Cases Nos. C-15 and C-16.

We come now to the award of damages in both Criminal Cases Nos. C-15 and C-16 which was just stipulated by both counsels for the heirs of the two deceased and the counsel for herein accused-appellant.

With respect to Criminal Case C-15, for the death of Dra. Arlyn Faburada, the amount of P100,000.00 for the burial and other expenses incurred in connection therewith was stipulated upon and may be deemed reasonable; the award of P50,000.00 as death indemnity is in accord with established jurisprudence. 75

However, the award of P500,000.00 as moral damages is excessive and should be correspondingly reduced, bearing in mind that the purpose for making such award is not to enrich the heirs of the victim but to compensate them for injuries to their feelings. 76 Accordingly, an award of P50,000.00 would be adequate and reasonable pursuant to established jurisprudence. 77

The award of P10,000.00 for exemplary damages cannot be sustained pursuant to Article 2230 of the New Civil Code which provides that exemplary damages may be imposed only when the crime is committed with one or more aggravating circumstances. 78

As regards Criminal Case No. C-16, pertaining to the death of Lt. Joerlick Faburada, there is also a need to modify the award of damages made by the trial court.

As in Civil Criminal Case No. C-15, the P500,000.00 award for moral damages must be reduced to P50,000.00 only and the award of P10,000.00 as exemplary damages should be deleted.

Likewise, the amount of P100,000.00 reimbursement for the burial and incidental expenses was agreed upon by the prosecution and the heirs of the deceased; the indemnity of P50,000.00 by reason of the death of Lt. Joerlick Faburada is in order.

As regards Criminal Case No. C-14, the trial court held that herein accused-appellant's primary criminal intent was to kill the late Lt. Joerlick Faburada because of his very strict enforcement of the laws in Cantilan, Surigao del Sur and not to deprive the latter of his personal belongings. 79 It concluded that herein accused-appellant was guilty of robbery under Article 293 of the Revised Penal Code which provides:

Art. 293. Who are guilty of robbery. — Any person who, with intent to gain, shall take any personal property belonging to another, by means of violence against or intimidation of any

person, or using force upon anything, shall be guilty of robbery.

There are only two ways in which the crime of robbery can be committed: 1) by means of violence against or intimidation of any person, or 2) by means of force upon anything. 80 The evidence on record in this case is devoid of basis to support the conclusion reached by the trial court that the crime committed is robbery.

Our ruling in People v. Salazar 81 is doctrinal:

if the original criminal design does not clearly comprehend robbery, but robbery follows the homicide as an afterthought or as a minor incident of the homicide, the criminal act should be viewed as constitutive of two offenses and not of a single complex crime. Robbery with homicide arises only when there is a direct relation, an intimate connection, between the robbery and the killing, even if the killing is prior to, concurrent with, or subsequent to the robbery.

In the instant case, it is apparent that the taking of the personal properties from the victim was an afterthought. The personal properties were taken after accused-appellant has already successfully carried out his primary criminal intent to killing Lt. Faburada and the taking did not necessitate the use of violence or force upon the person of Lt. Faburada nor force upon anything. Thus, the crime is theft under Article 308 of the same Code which provides, viz.:

Art. 308. Who are liable for theft. — Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latter's consent. . . . .

Although the crimes of robbery and theft under the Revised Penal Code have in common the elements of (a) unlawful taking; (b) with intent to gain; (c) taking of personal property; and (d) the property taken belongs to another, they differ in the manner in which they are asported. Considering that the victim was already heavily wounded when his personal properties were taken, there was no need to employ violence against or intimidation upon his person. Thus, in Criminal Case No. C-14, accused-appellant can only be held guilty of the separate offense of theft under Article 308, penalized under Article 309 of the Revised Penal Code.

During the trial, the value of the stolen personal effects was the subject of the testimony 82 of SPO4 Manuel L. Azarcon, Deputy Chief of Cantilan, Surigao del Sur; who declared that his .45 caliber pistol was valued at P36,000.00 to P40,000.00; the ICOM radio at P9,000.00 and the PNPA gold ring at P8,000. Under the rule on opinions of ordinary witnesses, it is a standing doctrine that the opinion of a witness is admissible in evidence on ordinary matters known to all men of common perception. 83 Here, the witness is not just an ordinary witness, but virtually an expert, since his work as a Deputy Chief of Police has given him the exposure to and experience in fixing the value of such ordinary police paraphernalia. It is noted that during the trial, the defense never cross-examined SPO4 Azarcon on these points. Such opportunity to cross-examine takes the testimony of said witness out of the hearsay rule. The lack of objection by the counsel for the defense to the value placed by the aforesaid witness gives credence to Azarcon's testimony.

Art. 309, of the Revised Penal Code provides:

Penalties. — Any person guilty of theft shall be punished by:

1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the value of the thing stolen exceed the latter amount, the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years. In such cases, and for purposes of the other provisions of this Code, the penalty shall be termed prison mayor or reclusion temporal, as the case may be.

Since the total value of the stolen property is P53,000.00 the accused-appellant should be meted the penalty of the maximum period of the penalty prescribed by Article 309 which is the maximum of prision mayor in its minimum and medium period plus one year for each additional ten thousand pesos in excess of P22,000.00. 84 Applying the Indeterminate Sentence Law, the penalty for this particular offense of theft that may thus be imposed is anywhere from two (2) years, four (4) months and one (1) day of prision correccional minimum period to six (6) years of prision correccionalmaximum period, as minimum, to anywhere from eight (8) years, eight (8) months and one (1) day to ten (10) years of prision mayor medium period, plus three (3) years for the additional P30,000.00 in excess of P22,000.00 value of the property taken, or eleven (11) years of prision mayor maximum period, as maximum.1âwphi1.nêt

WHEREFORE, the decision, dated December 10, 1996, of the Regional Trial Court of Cantilan, Surigao del Sur (Branch 41) is AFFIRMED with the MODIFICATION that:

1. In Criminal Case No. C-14, accused-appellant is found guilty beyond reasonable doubt of theft and is hereby sentenced to a prison term of two (2) years, four (4) months and one (1) day of prision correccional minimum period, as minimum, to eight (8) years, eight (8) months and one (1) day of prision mayor plus (3) years for the additional P30,000.00 in excess of P22,000.00 value of the property taken, or a total of eleven (11) years, eight (8) months and one (1) day, as maximum period and to pay the amount of P45,000.00 85 as reparation for the unrecovered stolen articles;

2. In Criminal Case No. C-15, accused-appellant is found guilty beyond reasonable doubt of the crime of murder qualified by treachery and is hereby sentenced to suffer the penalty of reclusion perpetua; he is also ordered to pay the heirs of the victim:

a) Death indemnity — P50,000.00

b) Moral damages — P50,000.00

c) Actual damages — P100,000.00

3. In Criminal Case No. C-16, accused-appellant is found guilty beyond reasonable doubt of the crime of murder qualified by treachery and is hereby sentenced to suffer the penalty of reclusion perpetua; he is also ordered to pay the heirs of the victim:

a) Death indemnity — P50,000.00

b) Moral damages — P50,000.00

c) Actual damages — P100,000.00

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

G.R. No. 72964 January 7, 1988

FILOMENO URBANO, petitioner, vs.HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE PHILIPPINES, respondents.

 

GUTIERREZ, JR., J.:

This is a petition to review the decision of the then Intermediate Appellate Court which affirmed the decision of the then Circuit Criminal Court of Dagupan City finding petitioner Filomeno Urban guilty beyond reasonable doubt of the crime of homicide.

The records disclose the following facts of the case.

At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno Urbano went to his ricefield at Barangay Anonang, San Fabian, Pangasinan located at about 100 meters from the tobacco seedbed of Marcelo Javier. He found the place where he stored his palay flooded with water coming from the irrigation canal nearby which had overflowed. Urbano went to the elevated portion of the canal to see what happened and there he saw Marcelo Javier and Emilio Erfe cutting grass. He asked them who was responsible for the opening of the irrigation canal and Javier admitted that he was the one. Urbano then got angry and demanded that Javier pay for his soaked palay. A quarrel between them ensued. Urbano unsheathed his bolo (about 2 feet long, including the handle, by 2 inches wide) and hacked Javier hitting him on the right palm of his hand, which was used in parrying the bolo hack. Javier who was then unarmed ran away from Urbano but was overtaken by Urbano who hacked him again hitting Javier on the left leg with the back portion of said bolo, causing a swelling on said leg. When Urbano tried to hack and inflict further injury, his daughter embraced and prevented him from hacking Javier.

Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house about 50 meters away from where the incident happened. Emilio then went to the house of Barangay Captain Menardo Soliven but not

finding him there, Emilio looked for barrio councilman Felipe Solis instead. Upon the advice of Solis, the Erfes together with Javier went to the police station of San Fabian to report the incident. As suggested by Corporal Torio, Javier was brought to a physician. The group went to Dr. Guillermo Padilla, rural health physician of San Fabian, who did not attend to Javier but instead suggested that they go to Dr. Mario Meneses because Padilla had no available medicine.

After Javier was treated by Dr. Meneses, he and his companions returned to Dr. Guillermo Padilla who conducted a medico-legal examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C" dated September 28, 1981) which reads:

TO WHOM IT MAY CONCERN:

This is to certify that I have examined the wound of Marcelo Javier, 20 years of age, married, residing at Barangay Anonang, San Fabian, Pangasinan on October 23, 1980 and found the following:

1 -Incised wound 2 inches in length at the upper portion of the lesser palmar prominence, right.

As to my observation the incapacitation is from (7-9) days period. This wound was presented to me only for medico-legal examination, as it was already treated by the other doctor. (p. 88, Original Records)

Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their differences. Urbano promised to pay P700.00 for the medical expenses of Javier. Hence, on October 27, 1980, the two accompanied by Solis appeared before the San Fabian Police to formalize their amicable settlement. Patrolman Torio recorded the event in the police blotter (Exhibit A), to wit:

xxx xxx xxx

Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both parties appeared before this Station accompanied by brgy. councilman Felipe Solis and settled their case amicably, for they are neighbors and close relatives to each other. Marcelo Javier accepted and granted forgiveness to Filomeno Urbano who shoulder (sic) all the expenses in his medical treatment, and promising to him and to this Office

that this will never be repeated anymore and not to harbour any grudge against each other. (p. 87, Original Records.)

Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the additional P300.00 was given to Javier at Urbano's house in the presence of barangay captain Soliven.

At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General Hospital in a very serious condition. When admitted to the hospital, Javier had lockjaw and was having convulsions. Dr. Edmundo Exconde who personally attended to Javier found that the latter's serious condition was caused by tetanus toxin. He noticed the presence of a healing wound in Javier's palm which could have been infected by tetanus.

On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings of Dr. Exconde are as follows:

Date Diagnosis

11-14-80 ADMITTED due to trismus

adm. at DX TETANUS

1:30 AM Still having frequent muscle spasm. With diffi-

#35, 421 culty opening his mouth. Restless at times. Febrile

11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessa-

tion of respiration and HR after muscular spasm.

02 inhalation administered. Ambo bag resuscita-

tion and cardiac massage done but to no avail.

Pronounced dead by Dra. Cabugao at 4:18 P.M.

PMC done and cadaver brought home by rela-

tives. (p. 100, Original Records)

In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of homicide before the then Circuit Criminal Court of Dagupan City, Third Judicial District.

Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found Urbano guilty as charged. He was sentenced to suffer an indeterminate prison term of from TWELVE (12) YEARS of prision mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as maximum, together with the accessories of the law, to indemnify the heirs of the victim, Marcelo Javier, in the amount of P12,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs. He was ordered confined at the New Bilibid Prison, in Muntinlupa, Rizal upon finality of the decision, in view of the nature of his penalty.

The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but raised the award of indemnity to the heirs of the deceased to P30,000.00 with costs against the appellant.

The appellant filed a motion for reconsideration and/or new trial. The motion for new trial was based on an affidavit of Barangay Captain Menardo Soliven (Annex "A") which states:

That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan, and up to the present having been re-elected to such position in the last barangay elections on May 17, 1982;

That sometime in the first week of November, 1980, there was a typhoon that swept Pangasinan and other places of Central Luzon including San Fabian, a town of said province;

That during the typhoon, the sluice or control gates of the Bued irrigation dam which irrigates the ricefields of San Fabian were closed and/or controlled so much so that water and its flow to the canals and ditches were regulated and reduced;

That due to the locking of the sluice or control gates of the dam leading to the canals and ditches which will bring water to the ricefields, the water in said canals and ditches became shallow which was suitable for catching mudfishes;

That after the storm, I conducted a personal survey in the area affected, with my secretary Perfecto Jaravata;

That on November 5, 1980, while I was conducting survey, I saw the late Marcelo Javier catching fish in the shallow irrigation canals with some companions;

That few days there after,or on November l5, l980, I came to know that said Marcelo Javier died of tetanus. (p. 33, Rollo)

The motion was denied. Hence, this petition.

In a resolution dated July 16, 1986, we gave due course to the petition.

The case involves the application of Article 4 of the Revised Penal Code which provides that "Criminal liability shall be incurred: (1) By any person committing a felony (delito) although the wrongful act done be different from that which he intended ..." Pursuant to this provision "an accused is criminally responsible for acts committed by him in violation of law and for all the natural and logical consequences resulting therefrom." (People v. Cardenas, 56 SCRA 631).

The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a result of which Javier suffered a 2-inch incised wound on his right palm; that on November 14, 1981 which was the 22nd day after the incident, Javier was rushed to the hospital in a very serious condition and that on the following day, November 15, 1981, he died from tetanus.

Under these circumstances, the lower courts ruled that Javier's death was the natural and logical consequence of Urbano's unlawful act. Hence, he was declared responsible for Javier's death. Thus, the appellate court said:

The claim of appellant that there was an efficient cause which supervened from the time the deceased was wounded to the time of his death, which covers a period of 23 days does not deserve serious consideration. True, that the deceased did not die right away from his wound, but the cause of his death was due to said wound which was inflicted by the appellant. Said wound which was in the process of healing got infected with tetanus which ultimately caused his death.

Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim suffered lockjaw because of the infection of the wound with tetanus. And there is no other way by which he could be infected with tetanus except through the wound in his palm (tsn., p. 78, Oct. 5, 1981). Consequently, the proximate cause of the victim's death was

the wound which got infected with tetanus. And the settled rule in this jurisdiction is that an accused is liable for all the consequences of his unlawful act. (Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072; People v. Cornel 78 Phil. 418).

Appellant's allegation that the proximate cause of the victim's death was due to his own negligence in going back to work without his wound being properly healed, and lately, that he went to catch fish in dirty irrigation canals in the first week of November, 1980, is an afterthought, and a desperate attempt by appellant to wiggle out of the predicament he found himself in. If the wound had not yet healed, it is impossible to conceive that the deceased would be reckless enough to work with a disabled hand. (pp. 20-21, Rollo)

The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier was due to his own negligence, that Dr. Mario Meneses found no tetanus in the injury, and that Javier got infected with tetanus when after two weeks he returned to his farm and tended his tobacco plants with his bare hands exposing the wound to harmful elements like tetanus germs.

The evidence on record does not clearly show that the wound inflicted by Urbano was infected with tetanus at the time of the infliction of the wound. The evidence merely confirms that the wound, which was already healing at the time Javier suffered the symptoms of the fatal ailment, somehow got infected with tetanus However, as to when the wound was infected is not clear from the record.

In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the following definition of proximate cause:

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... A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American Jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows:

... "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred."And more comprehensively, "the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each

having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom." (at pp. 185-186)

The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time Javier was wounded until his death which would exculpate Urbano from any liability for Javier's death.

We look into the nature of tetanus-

The incubation period of tetanus, i.e., the time between injury and the appearance of unmistakable symptoms, ranges from 2 to 56 days. However, over 80 percent of patients become symptomatic within 14 days. A short incubation period indicates severe disease, and when symptoms occur within 2 or 3 days of injury the mortality rate approaches 100 percent.

Non-specific premonitory symptoms such as restlessness, irritability, and headache are encountered occasionally, but the commonest presenting complaints are pain and stiffness in the jaw, abdomen, or back and difficulty swallowing. As the progresses, stiffness gives way to rigidity, and patients often complain of difficulty opening their mouths. In fact, trismus in the commonest manifestation of tetanus and is responsible for the familiar descriptive name of lockjaw. As more muscles are involved, rigidity becomes generalized, and sustained contractions called risus sardonicus. The intensity and sequence of muscle involvement is quite variable. In a small proportion of patients, only local signs and symptoms develop in the region of the injury. In the vast majority, however, most muscles are involved to some degree, and the signs and symptoms encountered depend upon the major muscle groups affected.

Reflex spasm usually occur within 24 to 72 hours of the first symptom, an interval referred to as the onset time. As in the case of the incubation period, a short onset time is associated with a poor prognosis. Spasms are caused by

sudden intensification of afferent stimuli arising in the periphery, which increases rigidity and causes simultaneous and excessive contraction of muscles and their antagonists. Spasms may be both painful and dangerous. As the disease progresses, minimal or inapparent stimuli produce more intense and longer lasting spasms with increasing frequency. Respiration may be impaired by laryngospasm or tonic contraction of respiratory muscles which prevent adequate ventilation. Hypoxia may then lead to irreversible central nervous system damage and death.

Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of more than 6 days. Trismus is usually present, but dysphagia is absent and generalized spasms are brief and mild. Moderately severe tetanus has a somewhat shorter incubation period and onset time; trismus is marked, dysphagia and generalized rigidity are present, but ventilation remains adequate even during spasms. The criteria for severe tetanus include a short incubation time, and an onset time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent prolonged, generalized convulsive spasms. (Harrison's Principle of Internal Medicine, 1983 Edition, pp. 1004-1005; Emphasis supplied)

Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the incubation period of the disease.

In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo which Urbano used in hacking him. This incident took place on October 23, 1980. After 22 days, or on November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle spasms. The following day, November 15, 1980, he died.

If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at the time, it is more medically probable that Javier should have been infected with only a mild cause of tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking incident or more than 14 days after the infliction of the wound. Therefore, the onset time should have been more than six days. Javier, however, died on the second day from the onset time. The more credible conclusion is that at the time Javier's wound was inflicted by the appellant, the severe form of tetanus that killed him was not yet present. Consequently, Javier's wound could have been infected with tetanus after the hacking incident. Considering the circumstance surrounding Javier's death, his wound could have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.

The rule is that the death of the victim must be the direct, natural, and logical consequence of the wounds inflicted upon him by the accused. (People v. Cardenas, supra) And since we are dealing with a criminal conviction, the proof that the accused caused the victim's death must convince a rational mind beyond reasonable doubt. The medical findings, however, lead us to a distinct possibility that the infection of the wound by tetanus was an efficient intervening cause later or between the time Javier was wounded to the time of his death. The infection was, therefore, distinct and foreign to the crime. (People v. Rellin, 77 Phil. 1038).

Doubts are present. There is a likelihood that the wound was but the remote cause and its subsequent infection, for failure to take necessary precautions, with tetanus may have been the proximate cause of Javier's death with which the petitioner had nothing to do. As we ruled in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118).

"A prior and remote cause cannot be made the be of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause. And if an independent negligent act or defective condition sets into operation the instances which result in injury because of the prior defective condition, such subsequent act or condition is the proximate cause." (45 C.J. pp. 931-932). (at p. 125)

It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the very least, the records show he is guilty of inflicting slight physical injuries. However, the petitioner's criminal liability in this respect was wiped out by the victim's own act. After the hacking incident, Urbano and Javier used the facilities of barangay mediators to effect a compromise agreement where Javier forgave Urbano while Urbano defrayed the medical expenses of Javier. This settlement of minor offenses is allowed under the express provisions of Presidential Decree G.R. No. 1508, Section 2(3). (See also People v. Caruncho, 127 SCRA 16).

We must stress, however, that our discussion of proximate cause and remote cause is limited to the criminal aspects of this rather unusual case. It does not necessarily follow that the petitioner is also free of civil liability. The well-settled doctrine is that a person, while not criminally liable, may still be civilly

liable. Thus, in the recent case ofPeople v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29, 1987), we said:

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... While the guilt of the accused in a criminal prosecution must be established beyond reasonable doubt, only a preponderance of evidence is required in a civil action for damages. (Article 29, Civil Code). The judgment of acquittal extinguishes the civil liability of the accused only when it includes a declaration that the facts from which the civil liability might arise did not exist. (Padilla v. Court of Appeals, 129 SCRA 559).

The reason for the provisions of article 29 of the Civil Code, which provides that the acquittal of the accused on the ground that his guilt has not been proved beyond reasonable doubt does not necessarily exempt him from civil liability for the same act or omission, has been explained by the Code Commission as follows:

The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is one of the most serious flaws in the Philippine legal system. It has given use to numberless instances of miscarriage of justice, where the acquittal was due to a reasonable doubt in the mind of the court as to the guilt of the accused. The reasoning followed is that inasmuch as the civil responsibility is derived from the criminal offense, when the latter is not proved, civil liability cannot be demanded.

This is one of those causes where confused thinking leads to unfortunate and deplorable consequences. Such reasoning fails to draw a clear line of demarcation between criminal liability and civil responsibility, and to determine the logical result of the distinction. The two liabilities are separate and distinct from each other. One affects the social order and the other, private rights. One is for the punishment or correction of the offender while the other is for reparation of damages

suffered by the aggrieved party. The two responsibilities are so different from each other that article 1813 of the present (Spanish) Civil Code reads thus: "There may be a compromise upon the civil action arising from a crime; but the public action for the imposition of the legal penalty shall not thereby be extinguished." It is just and proper that, for the purposes of the imprisonment of or fine upon the accused, the offense should be proved beyond reasonable doubt. But for the purpose of indemnity the complaining party, why should the offense also be proved beyond reasonable doubt? Is not the invasion or violation of every private right to be proved only by a preponderance of evidence? Is the right of the aggrieved person any less private because the wrongful act is also punishable by the criminal law?

"For these reasons, the Commission recommends the adoption of the reform under discussion. It will correct a serious defect in our law. It will close up an inexhaustible source of injustice-a cause for disillusionment on the part of the innumerable persons injured or wronged."

The respondent court increased the P12,000.00 indemnification imposed by the trial court to P30,000.00. However, since the indemnification was based solely on the finding of guilt beyond reasonable doubt in the homicide case, the civil liability of the petitioner was not thoroughly examined. This aspect of the case calls for fuller development if the heirs of the victim are so minded.

WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the then Intermediate Appellate Court, now Court of Appeals, is REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of homicide. Costs de oficio.

SO ORDERED.