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Reclusion TemporalArticle 27

Reclusion perpetua. - The penalty of reclusion perpetua shall be from twenty years

and one day to forty years.

Reclusion temporal. - The penalty of reclusion temporal shall be from twelve years and one day

to twenty years.

Prision mayor and temporary disqualification. - The duration of the penalties of prision mayor

and temporary disqualification shall be from six years and one day to twelve years, except when

the penalty of disqualification is imposed as an accessory penalty, in which case, its duration

shall be that of the principal penalty.

Prision correccional, suspension, and destierro. - The duration of the penalties of prision

correccional, suspension and destierro shall be from six months and one day to six years, except

when suspension is imposed as an accessory penalty, in which case, its duration shall be that of

the principal penalty.

Arresto mayor. - The duration of the penalty or arresto mayor shall be from one month and one

day to six months.

Arresto menor. - The duration of the penalty of arresto menor shall be from one day to thirty

days.

Bond to keep the peace. - The bond to keep the peace shall be required to cover such period of

time as the court may determine. (As amended by Section 21, Republic Act No. 7659.)

Perpetual or Temporary Absolute DisqualificationArticle 30

Article 30. Effects of the penalties of perpetual or temporary absolute disqualification. - The

penalties of perpetual or temporary absolute disqualification for public office shall produce the

following effects:

1. The deprivation of the public offices and employments which the offender may have

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to twenty years.










day to six months.


days.



Article 42.Prision mayor - Its accessory penalties. - The penalty of prision mayor shall carry

with it that of temporary absolute disqualification and that of perpetual special disqualification

from the right of suffrage which the offender shall suffer although pardoned as to the principal

penalty, unless the same shall have been expressly remitted in the pardon.

Correctional PenaltiesArticles 27, 39, 43, and 44

Article 27. Reclusion perpetua. - The penalty of reclusion perpetua shall be from twenty years



to twenty years.


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day to six months.


days.



Article 39. Subsidiary penalty. - If the convict has no property with which to meet the fine

mentioned in paragraph 3 of the next preceding article, he shall be subject to a subsidiarypersonal liability at the rate of one day for each eight pesos, subject to the following rules:

1. If the principal penalty imposed be prision correccional or arresto and fine, he shall

remain under confinement until his fine referred in the preceding paragraph is satisfied,but his subsidiary imprisonment shall not exceed one-third of the term of the sentence,

and in no case shall it continue for more than one year, and no fraction or part of a day

shall be counted against the prisoner.2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall

not exceed six months, if the culprit shall have been prosecuted for a grave or less grave

felony, and shall not exceed fifteen days, if for a light felony.

3. When the principal penalty imposed is higher than prision correccional no subsidiaryimprisonment shall be imposed upon the culprit.

4. If the principal penalty imposed is not to be executed by confinement in a penal

institution, but such penalty is of fixed duration, the convict, during the period of time

established in the preceding rules, shall continue to suffer the same deprivation as thoseof which the principal penalty consists.

5. The subsidiary personal liability which the convict may have suffered by reason of his

insolvency shall not relieve him from the fine in case his financial circumstances should

improve. (As amended by Republic Act No. 5465, April 21, 1969.)

Article 43.Prision correccional - Its accessory penalties. - The penalty of prision correccional

shall carry with it that of suspension from public office, from the right to follow a profession or

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calling, and that of perpetual special disqualification from the right of suffrage, if the duration of

said imprisonment shall exceed eighteen months. The offender shall suffer the disqualification

provided in this article although pardoned as to the principal penalty, unless the same shall havebeen expressly remitted in the pardon.

Article 44.Arresto - Its accessory penalties. - The penalty of arresto shall carry with it that of

suspension of the right to hold office and the right of suffrage during the term of the sentence.

Prision Correccional

Article 43.Prision correccional - Its accessory penalties. - The penalty of prision correccional

shall carry with it that of suspension from public office, from the right to follow a profession or

calling, and that of perpetual special disqualification from the right of suffrage, if the duration ofsaid imprisonment shall exceed eighteen months. The offender shall suffer the disqualification

provided in this article although pardoned as to the principal penalty, unless the same shall have

been expressly remitted in the pardon.

Arresto Mayor

Article 44.Arresto - Its accessory penalties. - The penalty of arresto shall carry with it that of

suspension of the right to hold office and the right of suffrage during the term of the sentence.

Suspesion

Destierro

REPUBLIC ACT No. 6127

AN ACT AMENDING ARTICLE TWENTY-NINE OF THE REVISED PENAL CODE TO GIVE FULLTIME CREDIT UNDER CERTAIN CONDITIONS TO OFFENDERS WHO HAVE UNDERGONE

PREVENTIVE IMPRISONMENT (DETENTION PRISONERS) IN THE SERVICE OF THEIRSENTENCES.

Section 1. Article 29 of the Revised Penal Code is hereby amended to read as follows:

"Art. 29. Period of preventive imprisonment deducted from term of imprisonment. Offenders whohave undergone preventive imprisonment shall be credited in the service of their sentence consistingof deprivation of liberty, with the full time during which they have undergone preventiveimprisonment, if the detention prisoner agrees voluntarily in writing to abide by the same disciplinaryrules imposed upon convicted prisoners, except in the following cases:

1. When they are recidivists, or have been convicted previously twice or more times of anycrime; and

2. When upon being summoned for the execution of their sentence they have failed tosurrender voluntarily;

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"If the detention prisoner does not agree to abide by the same disciplinary rules imposed uponconvicted prisoners, he shall be credited in the service of his sentence with four-fifths of the timeduring which he has undergone preventive imprisonment."

Section 2. This Act shall take effect upon its approval.

Approved: June 17, 1970

MALACAANG PALACE

Manila

BY THE PRESIDENT OF THE PHILIPPINES

EXECUTIVE ORDER NO. 214

IMPOSITION OF APPLICABLE COMMON EFFECTIVE PREFERENTIAL TARIFF RATES ON QUALIFIED IMPORTS

FROM ECOZONE LOCATORS

WHEREAS, under Article 3 of the Common Effective Preferential Tariff (CEPT) Agreement and its

Interpretative Notes, the Agreement shall apply to all manufactured products, including capital goods,

processed agricultural products, and those products falling under the definition of agricultural products

as set out in the Agreement;

WHEREAS, under the Agreement, the ASEAN CEPT rates shall be accorded to imports coming from

ASEAN Member States applying CEPT concession on the same product;

WHEREAS, under the Agreement, a product is deemed originating from an ASEAN Member State, if

at least 40% of its content originates from any Member State;

WHEREAS, Republic Act Nos. 7227, 7916, 7903 and 7922 vest the Subic Bay Free Port, Clark Special

Economic Zone and other ecozones with the status of a separate customs territory, and therefore

manufactured or processed products bought from ecozone locators are considered as originating from

abroad;

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WHEREAS, all products sold by ecozone locators to the domestic customs territory are imposed the

MFN rates;

WHEREAS, the National Economic Development Authority (NEDA) Board on 3 September 2002

confirmed the recommendation of the Committee on Tariff and Related Matters to impose CEPT rates

on qualified imports from ecozone locators;

WHEREAS, Section 402 of the Tariff and Customs Code of 1978 (Presidential Decree No. 1464, as

amended), empowers the President, upon the recommendation of the NEDA, to increase, reduce or

remove existing protective rates of import duty, as well as to modify the form of import duty.

NOW, THEREFORE, I, GLORIA MACAPAGAL ARROYO, President of the Philippines, by virtue of the

powers vested in me by law, do hereby order:

SECTION 1. Products manufactured in ecozones with at least 40% of its product content originating

from any Member State and sold in the Philippine customs territory shall be imposed the applicable

CEPT rates subject to qualification under the Rules of Origin as provided for in the Agreement on the

CEPT Scheme for the AFTA signed on 26 January 1992.

SECTION 2. In the event that Philippine MFN rates of duty on any of the manufactured articles covered

under the CEPT scheme are reduced to a rate lower than the prescribed CEPT rate, such article shall

automatically be accorded the corresponding lower duty.

SECTION 3. Within thirty (30) days following the complete publication of this Order, the Department of

Finance, the Philippine Economic Zone Authority, the Subic Bay Metropolitan Authority and Clark Special

Economic Zone Authority, in coordination with the Board of Investments, and other relevant agencies

shall promulgate and issue the appropriate guidelines for the implementation of this Executive Order.

SECTION 4. All Presidential issuances, administrative rules and regulations or parts thereof, which are

contrary or inconsistent with this this Executive Order are hereby repealed or modified accordingly.

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SECTION 5. This Executive Order shall take effect immediately following its complete publication

in two (2) newspapers of general circulation in the Philippines.

Done in the City of Manila, this 31st day of Mayl in the year of our Lord, Two Thousand and Three.

By the President:

Signature of the President

(signed)

ALBERTO G. ROMULO

Executive Secretary

Light PenaltiesArticles 27, 39, and 44

Arresto Menor

Public Censure

Article 27.Reclusion perpetua. - The penalty of reclusion perpetua shall be from twenty years



to twenty years.

Prision mayor and temporary disqualification. - The duration of the penalties of prision mayorand temporary disqualification shall be from six years and one day to twelve years, except when

the penalty of disqualification is imposed as an accessory penalty, in which case, its durationshall be that of the principal penalty.



when suspension is imposed as an accessory penalty, in which case, its duration shall be that ofthe principal penalty.

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day to six months.

Arresto menor. - The duration of the penalty of arresto menor shall be from one day to thirtydays.




mentioned in paragraph 3 of the next preceding article, he shall be subject to a subsidiarypersonal liability at the rate of one day for each eight pesos, subject to the following rules:1. If the principal penalty imposed be prision correccional or arresto and fine, he shall



shall be counted against the prisoner.

2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shallnot exceed six months, if the culprit shall have been prosecuted for a grave or less grave


3. When the principal penalty imposed is higher than prision correccional no subsidiary

imprisonment shall be imposed upon the culprit.4. If the principal penalty imposed is not to be executed by confinement in a penal






Article 44.Arresto - Its accessory penalties. - The penalty of arresto shall carry with it that ofsuspension of the right to hold office and the right of suffrage during the term of the sentence.

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Penalties Common to Afflictive, Correctional, and Light Penalties

Fines

Article 26.Fine - When afflictive, correctional, or light penalty. - A fine, whether imposed as asingle or as an alternative penalty, shall be considered an afflictive penalty, if it exceeds 6,000

pesos; a correctional penalty, if it does not exceed 6,000 pesos but is not less than 200 pesos; and

a light penalty if it be less than 200 pesos.

Article 39. Subsidiary penalty. - If the convict has no property with which to meet the finementioned in paragraph 3 of the next preceding article, he shall be subject to a subsidiary

personal liability at the rate of one day for each eight pesos, subject to the following rules:




shall be counted against the prisoner.

2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shallnot exceed six months, if the culprit shall have been prosecuted for a grave or less grave

felony, and shall not exceed fifteen days, if for a light felony.3. When the principal penalty imposed is higher than prision correccional no subsidiary

imprisonment shall be imposed upon the culprit.


institution, but such penalty is of fixed duration, the convict, during the period of timeestablished in the preceding rules, shall continue to suffer the same deprivation as those

of which the principal penalty consists.




Article 66.Imposition of fines. - In imposing fines the courts may fix any amount within the

limits established by law; in fixing the amount in each case attention shall be given, not only to

the mitigating and aggravating circumstances, but more particularly to the wealth or means of the

culprit.

Bond to keep the peace

Bond to keep the peace. - The bond to keep the peace shall be required to cover such period oftime as the court may determine. (As amended by Section 21, Republic Act No. 7659.)

Article 35.Effects of bond to keep the peace. - It shall be the duty of any person sentenced togive bond to keep the peace, to present two sufficient sureties who shall undertake that such

person will not commit the offense sought to be prevented, and that in case such offense be

committed they will pay the amount determined by the court in its judgment, or otherwise todeposit such amount in the office of the clerk of the court to guarantee said undertaking.

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The court shall determine, according to its discretion, the period of duration of the bond. (Read

also Art. 284)

EN BANC

[G.R. No. 142870. November 14, 2001]

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

PAJOTAL y FETALCORIN; RANDY GABAY (at large) and LINDO

GABAY (at large), accused.

DINDO PAJOTAL y FETALCORIN, accused-appellant.

D E C I S I O N

PER CURIAM:

This case is here on automatic review of the decision,[1]dated February 7, 2000, of the

Regional Trial Court of Oriental Mindoro, Branch 43, finding accused-appellant Dindo Pajotalguilty of the special complex crime of robbery with homicide and sentencing him to suffer the

penalty of death.

The Information[2]against accused-appellant and two others charged the following:

"That on or about the 21st day of October, 1996, at about 2:45 in the afternoon, at

Sitio Mabaho, Barangay Cabalwa, municipality of Mansasalay, province of Oriental

Mindoro, Philippines, and within the jurisdiction of this Honorable Court, the above-

named accused Randy Gabay alias Randy Montessa, Lindo Gabay and Dindo Pajotal,

conspiring, and confederating together and helping each other, with intent to kill and

to gain, did, then and there willfully, unlawfully and feloniously rode a jeep owned

and driven by Winefred Espina and by means of force and violence upon their victim,

take and carry away FIFTEEN THOUSAND (P15,000.00) PESOS, Philippine

Currency, and accused, pursuant to their conspiracy during the commission of the

robbery and on the such occasion thereof and for the purpose of enabling them to take,steal and carry away with them the said amount of P15,000.00, did, then and there

willfully, unlawfully and feloniously attack, assault and stab one Winefred Espina

with a bladed instrument, inflicting upon the latter [stab] wounds on the different parts

of his body thereby causing direct and immediate death of said Winefred Espina.
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"That in the commission of the crime the qualifying circumstances of treachery and

evident premeditation and the aggravating circumstance - of abuse of superior

strength were present.

"CONTRARY TO LAW."

The facts are as follows:

On October 21, 1996, at around 2:45 p.m., Winefred Espina was driving a passenger

jeepney, accompanied by his nephew, Arnold Bugayon, who was also seated in front beside the

former. They had just come from Bulalacao where they delivered some merchandise. Justbefore they reached Sitio Mabaho, Mansalay, Oriental Mindoro, three men stopped them on the

road. The three men boarded the vehicle, with one of them clinging to the left front side near

Espina, while the other man sat beside Bugayon. The third man hung at the rear of the jeepney

with his feet standing on the platform or"parilla." Bugayon identified the man who sat to hisright side on the front seat as Dindo Pajotal.[3]

In Sitio Mabaho, one of the three men ordered Espina to stop the vehicle, to which the latterreplied, "Pare walang ganyanan."(Pal, don't do this.) The three men then asked for money, butEspina refused to give it to them. Accused-appellant thus poked a knife at Bugayon and

threatened to kill him if Espina did not hand over the money. As Bugayon frantically asked his

uncle to do as the men asked, Espina handed his money to the person on his left. Although he

got the money, the man stabbed Espina on the left thigh, apparently to prevent any attempt byEspina to get the money back. Espina decided to fight back and alighted from the jeepney.[4]

At this point, accused-appellant also alighted from the vehicle and attempted to stab

Bugayon. He missed as Bugayon got out of the vehicle by passing through the driver's

side. Bugayon saw accused-appellant and his companions ganging up on Espina. Accused-

appellant stabbed Espina. Bugayon tried to help his uncle, but one of the men, who was alsoholding a knife, stopped him and said "Oano, lalaban ka?" (What? Do you want to fight?)

Espina told Bugayon to run away. Upon hearing this, Bugayon, very much afraid, retreated anddid what his uncle told him.[5]

Bugayon asked for help from persons he met, but no one was willing to come to the aid of

Espina. Finally, a passenger bus bound for Roxas passed by, and Bugayon boarded it. He

alighted at the PNP station in Mansalay and reported the incident to the police.[6]

At 6:30 p.m. of the same day, Dr. Domingo Asis, Rural Health Physician of Mansalay,

Oriental Mindoro, conducted an autopsy on the body of Winefred Espina. Dr. Asis' postmortem

report (Exh. C), which revealed that the victim suffered fifteen (15) stab wounds, contained the

following findings:

"(1) Wound, incised, 4.0 cm long, edges clean cut, 1.5 cm gape, 0.5 cm depth,

middle forehead, showing the bone;

"(2) Wound, incised, 4.0 cm long, edges clean cut, 1.0 cm gape, 0.5 cm depth,

forehead, right, above the eyebrow;
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"(3) Wound, lacerated, triangular in shape, 1 cm. depth, above the eyebrow left;

"(4) Fracture, depressed, localized, frontal bone, base of the nose;

"(5) Wound, lacerated, 2 cm long, 1 cm depth, with fractured bone, lateral

eyebrow, right;

"(6) Wound, lacerated, 1 cm. long, 0.5 cm depth, cheek, right;

"(7) Wound, stabbed, 1.5 cm long, 1.5 cm depth, posterior chest, at the level of the

scapula;

"(8) Wound, incised, edges clean cut, 4.0 cm long, 5 cm depth, 1.5 cm gape,

lateral distal third, forearm, left;

"(9) Wound, incised, edges clean cut, 2 cm long, 0.5 cm gape, 0.3 cm depth, radialarea, wrist, left;

"(10) Wound, stabbed, 2.0 cm long. 8 cm depth, at the level of 6th ICS, left of the

sternum, directing posteriorly, penetrating perforating the thoracic cavity;

"(11) Wound, stabbed, opening is D shape, 2 cm long, 8 cm depth, at the level of

4th ICS, midclavicular line, anterior chest, left directing laterally and posteriorly,

penetrating perforating the cardiac cavity;

"(12) Wound, stabbed, 2 cm long, 1.5 cm depth, right of the sternum, at the levelof 2nd ICS, non-penetrating;

"(13) Wound, lacerated, 4.0 cm long, 2.0 gape, 0.5 cm depth, distal third, dorsal,

medial area, arm, right;

"(14) Wound, lacerated, 4.0 cm long, 2 cm gape, 0.5 depth, distal third, dorsal,

lateral area, arm, right;

"(15) Wound, stabbed, 3 cm long, 1.5 cm gape, 8 cm depth, middle third, anterior,

thigh, left directing upward and posteriorly.

[7]

Of the fifteen wounds, the fatal ones were wounds no. 10 and 11. Dr. Asis testified that

based on the location of the wounds, it was possible that the assailant or assailants were in front

of or beside the victim. Dr. Asis stated that it was likewise possible that the wounds have beencaused by only one instrument. He could not, however, state with certainty how many persons

attacked the victim.[8]Dr. Asis issued a death certificate (Exh. D) on October 28, 1996, which
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stated that Winefred Espina died on October 21, 1996 from hemorrhagic shock caused by

multiple wounds.

Accused-appellant's defense was alibi. He claimed that on October 21, 1996, at about 2:45

p.m., he was in their house located along the shore of Barangay Manaul, Mansalay. With him inthe house were his two brothers, his mother, and his two nephews. At that time, accused-

appellant was busy repairing a fishing device known as"tora tora,"which was used by fishermenin catching bangus fries. Apart from the members of his family, Nemie Espiritu, a barriomate,saw accused-appellant at around 3:00 p.m. of that day. Accused-appellant claimed that he

undertook the repair of the "tora tora"from 7:00 a.m. until 4:30 p.m. of that day. He insisted

that he did not know his co-accused in this case, Randy and Lindo Gabay. He also denied that heknew the victim, Winefred Espina, or the latter's nephew, Arnold Bugayon.[9]

Accused-appellant further testified that their house at Barangay Manaul, Mansalay was

located along the shore about half a kilometer from the national highway. There were no motor

vehicles which regularly plied the route from the highway to their place. He admitted, however,that the distance of their house to the highway could be covered in fifteen minutes by foot.[10]

Nemie Espiritu, a barriomate of accused-appellant, claimed that at around 3:00 p.m. ofOctober 21, 1996, he was looking for fish to serve to his visitors. On his way to the house of a

certain Tammy Seloria, he saw accused-appellant near his house and they nodded at eachother.[11]

On the basis of the evidence presented by the parties, the trial court rendered a decision, the

dispositive portion of which states:

"WHEREFORE, judgment is hereby rendered as follows:

"(a) The court finds accused Dindo Pajotal y Fetalcorin GUILTY, beyond reasonable

doubt of the special complex crime of Robbery with Homicide punishable underArticle 294 paragraph 1 of the Revised Penal Code as amended by RA 7659 with the

aggravating circumstance of abuse of superior strength and he is hereby sentenced to

suffer the supreme penalty of DEATH to be executed in accordance with existing

law. In accordance with the provisions of Section 10, Rule 122 of the 1985 Rules of

Criminal Procedure, the Branch Clerk of Court, Atty. Mariano S. Familara III is

hereby directed to forward within twenty (20) days but not earlier than fifteen (15)

days after promulgation of judgment or notice of denial of any motion for new trial or

reconsideration the complete records of the case to the Honorable Supreme Court for

review;

"(b) Accused Dindo Pajotal is also ordered to pay the heirs of the deceased Winefred

Espina the sum of P50,000.00 as compensatory damages for the loss of life of the

victim, the sum of P26,000.00 as actual damages and P500,000.00 as lost earnings;
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"(c) With respect to accused Randy Gabay alias Randy Montesa and Lindo Gabay

who are still at large, let an alias warrant of arrest be issued against them in order that

they could be brought to court for trial."[12]

Hence this appeal.

Accused-appellant contends that:

"I. THE LOWER COURT ERRED IN CONVICTING ACCUSED-APPELLANTS OF THECRIME CHARGED DESPITE THE FACT THAT THEIR GUILT WAS NOT PROVEN

BEYOND REASONABLE DOUBT.

"II. GRANTING THAT THE ACCUSED-APPELLANT ARE (SIC) GUILTY, THE LOWERCOURT ERRED IN CONVICTING THEM FOR ROBBERY WITH HOMICIDE SINCE

THE CRIMES COMMITTED ARE ONLY THE TWO SEPARATE CRIMES OF SIMPLEROBBERY AND HOMICIDE WHICH WILL ENTITLE THEM TO THE IMPOSITION

OF A LESSER PENALTY FOR EACH OF THE TWO FELONIESCORRESPONDINGLY."[13]

We find the appeal to be without merit.

First. Accused-appellant contends that the State failed to prove his guilt by strong and

overwhelming evidence. While admitting that alibi per se is a weak defense, accused-appellantnevertheless contends that alibi can constitute a valid and plausible defense if, in the commission

of the crime, there are no other witnesses except the parties involved. In this case, accused-

appellant insists no other witness was presented to corroborate Arnold Bugayon's testimony.[14]

Accused-appellant's contention is untenable. Accused-appellant does not explain why the

testimony of the lone eyewitness Arnold Bugayon is insufficient to establish his guilt beyond

reasonable doubt. Nor does he give specific instances from the records of this case to bolster his

claim of innocence.

Contrary to accused-appellant's claim, the prosecution has proved the guilt of accused-

appellant beyond reasonable doubt. The fact that Arnold Bugayon was the only eyewitness does

not diminish the force and weight of his testimony. A doctrine of long standing in this

jurisdiction is that the testimony of a lone eyewitness, if credible and positive, is sufficient toconvict an accused.[15]Hence the trial court, which heard Bugayon's testimony and had the

opportunity to observe his demeanor while on the witness stand, said:

"The robbery subject of the instant case occurred in broad daylight. The lone

eyewitness to the crime, Arnold Bugayon, categorically declared that it was accused

Dindo Pajotal who clung to the right side of their passenger jeepney then being

utilized as a delivery vehicle just next to him, to his right side and that while there wasan on-going scuffle between his uncle and the two other- conspirators of Pajotal the

latter even delivered with his knife a thrusting blow on him. To the mind of the court,

Arnold Bugayon could not have failed to recognize Pajotal as he himself was

assaulted by him. The natural reaction of a person in his predicament is to exert

efforts to identify the culprits. As ruled by the Supreme Court in the cases of People

vs. Melendres, 106 SCRA 575 and People vs. Amiscua, 37 SCRA 813, a truism
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founded on the ordinary course of things is that victims of criminal violence often

strive hard to recognize and identify their assailants."[16]

We see no reason to disturb the trial court's evaluation and assessment of Bugayon's

credibility, the same not being tainted by any arbitrariness or palpable error. The findings of the

trial court judge who tried the case and heard the witnesses are not to be disturbed on appealunless there are substantial facts and circumstances which have been overlooked and which, if

properly considered, might affect the result of the case. The trial judge's evaluation of thewitnesses' credibility deserves the utmost respect in the absence of arbitrariness. Conclusions

and findings of the trial court are entitled to great weight on appeal and should not be disturbed

unless for strong and valid reasons because the trial court is in a better position to examine the

demeanor of the witnesses while testifying on the case.[17]

Arnold Bugayon's testimony is strengthened by the findings of Dr. Domingo Asis, themedico-legal examiner who performed the autopsy on the victim's body. Bugayon testified that

after the victim, Espina, handed the money to the person on his left side, the latter, apparently

aroused by Espina's uncooperative behavior, stabbed Espina on the left thigh. Espina got out ofthe jeepney to confront the robbers and a scuffle ensued, with the three men ganging up on

Espina. Bugayon's testimony is consistent with the medical findings of Dr. Asis that the victim

suffered fifteen wounds, among which was a 3 cm. stab wound on the left thigh, directed upwardand posteriorly. Bugayon also testified that the men who were hanging on the jeepney beside

him and his uncle were both carrying balisongknives. When the three men ganged up on Espina,

they stabbed him with their knives and hit him with a stone.[18]Again, this testimony coincides

with Dr. Asis's findings that among the wounds suffered by the victim were incisions andlacerations, as well as a fracture of the frontal bone on the base of the nose. As the trial court

observed, the incisions and lacerations could very well have been caused by the knives wielded

by two of the robbers, while the fracture could have been caused by the stone carried by the thirdrobber.[19]

Despite compelling evidence against him, accused-appellant could only put up alibi in his

defense. He claimed that on the date and at the time of the incident in question, he was in his

house in Barangay Manaul, Mansalay, Oriental Mindoro repairing a fishing implement.

This defense is unavailing. For alibi to offset the evidence of the prosecution demonstrating

his guilt, the accused 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 at the scene of thecrime at the time it was committed.[20]Accused-appellant failed to prove that it was physically

impossible for him to be at the scene at the time of the commission of the crime. To the

contrary, he testified that their house was just about half a kilometer from the national highway,

where the crime took place. Although there were no motor vehicles which regularly plied the

route from the highway to their place, the distance could be covered in fifteen minutes byfoot. Accused-appellant was an athletic person. He was in fact one of the stars of their local

basketball team.[21]It would thus have been easy for him to make the fifteen-minute walk to the

highway, commit the crime with his co-accused, and return to his house thereafter. Defensewitness Nemie Espiritu, who lived in the same sitio, testified that he saw accused-appellant

working in his house after 3:00 p.m. He did not categorically state what time he saw accused-

appellant, but only said that it was at 3:00 p.m., more or less .[22]
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Alibi is an inherently weak defense which, unless supported by clear and convincing

evidence, cannot prevail over the positive identification of accused-appellant by an eyewitness,

Arnold Bugayon, who had no improper motive to testify falsely against him.[23]

For these reasons, we hold that the guilt of accused-appellant for the crime charged has beenproven by the prosecution beyond reasonable doubt.

Second. Accused-appellant contends that, even if he is guilty of killing Winefred Espina,

the trial court nonetheless erred in finding him liable for the crime of robbery with homicidebecause two separate crimes of simple robbery and homicide were actually committed, and a

lesser penalty for each should have been imposed. Accused-appellant claims that, according to

Bugayon's testimony, the injuries which caused Espina's death were inflicted after therobbery. He thus argues that the homicide was not committed on the occasion or by reason of

the robbery within the contemplation of Art. 294, paragraph 1 of the Revised Penal Code, which

provides the penalty ofreclusion perpetua to death for the special complex crime of robbery with

the use of violence against or intimidation of persons.

This contention has no merit. In order to determine the existence of the crime of robbery

with homicide, it is enough that death results by reason or on the occasion of the robberyinasmuch as it is only the result obtained, without reference or distinction as to the

circumstances, causes, modes, or persons intervening in the commission of the crime, that has tobe taken into consideration.[24]In other words, in the crime of robbery with homicide, it does not

matter if the homicide preceded or occurred after the robbery. For what is essential is that there

is a direct relation or intimate connection between the robbery and the killing, whether the latterbe prior or subsequent to the former or whether both crimes be committed at the same

time.[25]The original criminal design of the culprit must be robbery and the homicide is

perpetrated with a view to the consummation of the robbery, by reason or on the occasion of the

robbery.[26]Thus, inPeople v.Guiapar,[27]it was held that the death of a guard resulting from theinjury he sustained during the robbery qualified the offense to robbery with homicide. As long

as homicide resulted during, or because of, the robbery, even if the killing is by mere accident,robbery with homicide is committed.[28]

In the case at bar, Arnold Bugayon testified that the victim Espina was initially stabbed in

the thigh by one of the robbers because it appeared that he would fight to get back his money. In

fact, after he was stabbed, Espina got off the jeepney to run after the hold-up men to recover his

money. At that point, accused-appellant and his co-accused then stabbed Espina several timesand struck him with a stone. In view of the foregoing circumstances, we agree with the trial

court when it found that the homicide in the case at bar was committed by reason or on the

occasion of the robbery.

The information in this case alleged that in the commission of the crime, the qualifying

circumstances of treachery and evident premeditation and the aggravating circumstance of abuseof superior strength attended the commission of the crime. The trial court was correct in not

appreciating evident premeditation as a qualifying circumstance since this is inherent in thecrime of robbery.[29]The trial court was likewise correct in not appreciating the qualifying

circumstance of treachery. Although the victim was caught by surprise when he received the

first stab on his left thigh, the evidence shows that the victim was not caught completely offguard. For the fact is that the victim, accused-appellant, and the latter's co-accused engaged in

combat for several minutes before the former received the fatal stab wounds. This negates the
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existence of the first element of treachery, i.e., a sudden attack giving the victim no opportunity

to defend himself or retaliate. The existence of a struggle before the fatal blows were dealt on

the victim shows he was forewarned of the impending attack and that he was afforded theopportunity to put up a defense.[30]However, despite the absence of treachery, the factual

circumstances of the crime show that the killing of the victim was qualified by abuse of superior

strength, which is expressly alleged in the Information. Accused-appellant and his co-accuseddid not only enjoy superiority in number but they also used knives and a stone while their victimwas unarmed. Thus, there was physical disparity between the protagonists and abuse of superior

strength was obvious. The force used by the aggressors was out of proportion to the means of

defense available to the victim.[31]

Under Art. 294, par. 1 of the Revised Penal Code, as amended by R.A. No. 7659, any person

guilty of robbery with the use of violence against or intimidation of any person shall suffer the

penalty ofreclusion perpetua to death when, by reason or on occasion of the robbery, the crime

of homicide shall have been committed. In this case, it has been proven beyond reasonabledoubt that homicide was committed by accused-appellant and his co-accused by reason or on

occasion of the robbery committed against the victim. Under Article 63 of the Revised Penal

Code, in all cases in which the law prescribes a penalty composed of two indivisible penalties,and the crime was committed with the presence of one aggravating circumstance, the greater

penalty shall be applied. Considering the presence in this case of the aggravating circumstance of

abuse of superior strength, the penalty of death imposed by the trial court is proper and should

thus be sustained.

Four (4) members of the Court, although maintaining their adherence to the separate

opinions expressed inPeople v.Echagaray[32]that R.A. No. 7659, insofar as it prescribes the

penalty of death, is unconstitutional, nevertheless submit to the ruling of the majority that the law

is constitutional and that the death penalty should accordingly be imposed.

The civil indemnity in the amount of P50,000.00 awarded by the trial court is sustained, the

same being in line with current case law.[33]The award of P26,000.00 as actual damages is alsosustained as the amount duly proved and supported by receipts presented during the course of thetrial. However, the trial court should have ordered accused-appellant to indemnify the heirs of

the victim in the amount of P15,000.00, representing the amount the victim was carrying at the

time of the crime and taken by accused-appellant and his co-accused. It was never established

by any admissible evidence that any portion of this amount had been recovered.[34]

But the award for loss of earning capacity should be disallowed. As a rule, documentary

evidence should be presented to substantiate the claim for damages for loss of earning

capacity. By way of exception, damages for loss of earning capacity may be awarded despite the

absence of documentary evidence, provided that there is testimony either that the victim wasself-employed earning less than the minimum wage under current labor laws and judicial notice

may be taken of the fact that in the victim's line of work, no documentary evidence is available;

or that the victim was employed as a daily wage worker earning less than the minimum wageunder current labor laws.[35]In the case at bar, the testimony of Lea Espina, Winefred Espina's

widow, was the sole basis for the award of damages for loss of earning capacity. As it is not

supported by other documentary evidence, her bare testimony cannot be made the basis for anaward of damages for loss of earning capacity. Nor do the exceptions apply so as to justify an

award of damages for loss of earning capacity despite the absence of documentary
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evidence. The victim was not employed as a daily wage worker earning less than the minimum

wage at the time of his death. He was in fact, as claimed by his widow, earning substantially

more than the minimum wage. For these reasons, damages for loss of earnings cannot beawarded in the absence of evidence sufficiently showing his income.

The trial court should have awarded moral damages in the amount of P50,000.00 pursuant to

Art. 2219 par. (1) in relation to Art. 2006 par. (3) of the Civil Code. This is in consonance withour recent rulings.[36]We also agree with the Solicitor General that the trial court should haveawarded exemplary damages pursuant to Art. 2230 of the Civil Code. Said article allows the

imposition of exemplary damages when the crime is committed with one or more aggravating

circumstances. As discussed, abuse of superior strength aggravated the commission of the crimein the case at bar. Therefore, an award of P20,000.00 to the heirs of the victim is in order.[37]

WHEREFORE, the decision of the trial court is AFFIRMED with the MODIFICATION

that accused-appellant is ordered to pay the legal heirs of Winefred EspinaP41,000.00 as actual

damages, P50,000.00 as moral damages, P20,000.00 as exemplary damages, and the costs.

In accordance with Section 25 of R.A. 7659, amending Art. 83 of the Revised Penal Code,

upon the finality of this decision, let the records of this case be forthwith forwarded to thePresident of the Philippines for the possible exercise of the pardoning power.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,

Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio,

JJ., concur.
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Accessory Penalties

Perpetual or Temporary Absolute DisqualificationArticle 32

Article 32.Effects of the penalties of perpetual or temporary special disqualification for the

exercise of the right of suffrage. - The perpetual or temporary special disqualification for the

exercise of the right of suffrage shall deprive the offender perpetually or during the term of thesentence, according to the nature of said penalty, of the right to vote in any popular election for

any public office or to be elected to such office. Moreover, the offender shall not be permitted to

hold any public office during the period of his disqualification.

Perpetual or Temporary Special DisqualificationArticle 32

Article 33.Effects of the penalties of suspension from any public office, profession or calling, orthe right of suffrage. - The suspension from public office, profession or calling, and the exercise

of the right of suffrage shall disqualify the offender from holding such office or exercising such

profession or calling or right of suffrage during the term of the sentence.

Suspension from Public Office, the Right to Vote and Be Voted for, The Profession or Calling

Article 34. Civil interdiction. - Civil interdiction shall deprive the offender during the time of his

sentence of the rights of parental authority, or guardianship, either as to the person or property ofany ward, of marital authority, of the right to manage his property and of the right to dispose of

such property by any act or any conveyance inter vivos.

Civil Interdiction

Indemnification

Bond-Article 35

Article 35.Effects of bond to keep the peace. - It shall be the duty of any person sentenced to

give bond to keep the peace, to present two sufficient sureties who shall undertake that suchperson will not commit the offense sought to be prevented, and that in case such offense becommitted they will pay the amount determined by the court in its judgment, or otherwise to

deposit such amount in the office of the clerk of the court to guarantee said undertaking.

The court shall determine, according to its discretion, the period of duration of the bond. (Read

also Art. 284)

Should the person sentenced fail to give the bond as required he shall be detained for a periodwhich shall in no case exceed six months, if he shall have prosecuted for a grave or less grave

felony, and shall not exceed thirty days, if for a light felony.

Forfeiture of Confiscation of the instruments and Proceeds of the Offense

Article 45. Confiscation and forfeiture of the proceeds or instruments of the crime. - Every

penalty imposed for the commission of a felony shall carry with it the forfeiture of the proceeds

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of the crime and the instruments or tools with which it was committed.

Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the

Government, unless they be the property of a third person not liable for the offense, but those

articles which are not subject of lawful commerce shall be destroyed.

Payment of CostsArticle 37, 38

Article 37. Cost. - What are included. - Costs shall include fees and indemnities in the course ofthe judicial proceedings, whether they be fixed or unalterable amounts previously determined by

law or regulations in force, or amounts not subject to schedule.

Article 38.Pecuniary liabilities. - Order of payment. - In case the property of the offender

should not be sufficient for the payment of all his pecuniary liabilities, the same shall be met inthe following order:

1. The reparation of the damage caused.

2. Indemnification of consequential damages.

3. The fine.4. The costs of the proceedings.

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Subsidiary PenaltyArticle 39, RA 5465


mentioned in paragraph 3 of the next preceding article, he shall be subject to a subsidiarypersonal liability at the rate of one day for each eight pesos, subject to the following rules:




shall be counted against the prisoner.2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall

not exceed six months, if the culprit shall have been prosecuted for a grave or less grave


3. When the principal penalty imposed is higher than prision correccional no subsidiaryimprisonment shall be imposed upon the culprit.







REPUBLIC ACT No. 5465

AN ACT AMENDING ARTICLE 39 OF ACT NO. 3815 (REVISED PENAL CODE) INCREASINGTHE RATE PER DAY OF SUBSIDIARY PENALTY FROM TWO PESOS AND FIFTY CENTAVOS

TO EIGHT PESOS.

Section 1. Article 39 of Act 3815, otherwise known as the Revised Penal Code, is hereby amendedto read as follows:

"Art. 39. Subsidiary penalty. If the convict has no property with which to meet the fine mentioned inparagraph 3 of the next preceding article, he shall be subject to a subsidiary personal liability at therate of one day for each eight pesos, subject to the following rules:

"1. If the principal penalty imposed be prision correccional or arresto and fine, he shallremain under confinement until his fine referred in the preceding paragraph is satisfied, buthis subsidiary imprisonment shall not exceed one-third of the term of the sentence, and in nocase shall it continue for more than one year, and no fraction or part of a day shall be

counted against the prisoner.

"2. When the principal penalty imposed by only a fine, the subsidiary imprisonment shall notexceed six months, if the culprit shall have been prosecuted for a grave or less grave felony,and shall not exceed fifteen days, if for a light felony.

"3. When the principal penalty imposed is higher than prision correccional no subsidiaryimprisonment shall be imposed upon the culprit.

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"4. If the principal penalty imposed is not to be executed by confinement in a penalinstitution, but such penalty is of fixed duration, the convict, during the period of timeestablished in the preceding rules, shall continue to suffer the same deprivations as those ofwhich the principal penalty consists.

"5. The subsidiary personal liability which the convict may have suffered by reason of his

insolvency shall not relieve him from the fine in case his financial circumstances shouldimprove."

Section 2. This Act shall take effect upon its approval.

Enacted into law without executive signature on April 21, 1969.

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Gradiation of Felonies

Article 9. Grave felonies, less grave felonies and light felonies. - Grave felonies are those to

which the law attaches the capital punishment or penalties which in any of their periods areafflictive, in accordance with article 25 of this Code.

Less grave felonies are those which the law punishes with penalties which in their maximum

period are correctional, in accordance with the above-mentioned article.Light felonies are those infractions of law for the commission of which the penalty of arresto

menor or a fine not exceeding 200 pesos or both, is provided.

Article 7. When light felonies are punishable. - Light felonies are punishable only when they

have been consummated, with the exception of those committed against person or property.

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-3246 November 29, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.ABELARDO FORMIGONES, defendant-appellant.

Luis Contreras for appellant.Office of the Solicitor General Felix Bautista Angelo and Solicitor Felix V. Makasiar for appellee.

MONTEMAYOR, J .:

This is an appeal from the decision of the Court of First Instance of Camarines Sur finding the

appellant guilty of parricide and sentencing him to reclusion perpetua, to indemnify the heirs of thedeceased in the amount of P2,000, and to pay the costs. The following facts are not disputed.

In the month of November, 1946, the defendant Abelardo Formigones was living on his farm inBahao, Libmanan, municipality of Sipocot, Camarines Sur, with his wife, Julia Agricola, and his fivechildren. From there they went to live in the house of his half-brother, Zacarias Formigones, in thebarrio of Binahian of the same municipality of Sipocot, to find employment as harvesters of palay.

After about a month's stay or rather on December 28, 1946, late in the afternoon, Julia was sitting atthe head of the stairs of the house. The accused, without any previous quarrel or provocationwhatsoever, took his bolo from the wall of the house and stabbed his wife, Julia, in the back, theblade penetrating the right lung and causing a severe hemorrhage resulting in her death not longthereafter. The blow sent Julia toppling down the stairs to the ground, immediately followed by her

husband Abelardo who, taking her up in his arms, carried her up the house, laid her on the floor ofthe living room and then lay down beside her. In this position he was found by the people who camein response to the shouts for help made by his eldest daughter, Irene Formigones, who witnessedand testified to the stabbing of her mother by her father.

Investigated by the Constabulary, defendant Abelardo signed a written statement, Exhibit D, whereinhe admitted that he killed The motive was admittedly of jealousy because according to his statementhe used to have quarrels with his wife for the reason that he often saw her in the company of hisbrother Zacarias; that he suspected that the two were maintaining illicit relations because he noticedthat his had become indifferent to him (defendant).

During the preliminary investigation conducted by the justice of the peace of Sipocot, the accusedpleaded guilty, as shown by Exhibit E. At the trial of the case in the Court of First Instance, the

defendant entered a plea of not guilty, but did not testify. His counsel presented the testimony of twoguards of the provincial jail where Abelardo was confined to the effect that his conduct there wasrather strange and that he behaved like an insane person; that sometimes he would remove hisclothes and go stark naked in the presence of his fellow prisoners; that at times he would remainsilent and indifferent to his surroundings; that he would refused to take a bath and wash his clothesuntil forced by the prison authorities; and that sometimes he would sing in chorus with his fellowprisoners, or even alone by himself without being asked; and that once when the door of his cell wasopened, he suddenly darted from inside into the prison compound apparently in an attempt to regainhis liberty.

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The appeal is based merely on the theory that the appellant is an imbecile and therefore exemptfrom criminal liability under article 12 of the Revised Penal Code. The trial court rejected this sametheory and we are inclined to agree with the lower court. According to the very witness of thedefendant, Dr. Francisco Gomez, who examined him, it was his opinion that Abelardo was sufferingonly from feeblemindedness and not imbecility and that he could distinguish right from wrong.

In order that a person could be regarded as an imbecile within the meaning of article 12 of theRevised Penal Code so as to be exempt from criminal liability, he must be deprived completely ofreason or discernment and freedom of the will at the time of committing the crime. The provisions ofarticle 12 of the Revised Penal Code are copied from and based on paragraph 1, article 8, of the oldPenal Code of Spain. Consequently, the decisions of the Supreme Court of Spain interpreting andapplying said provisions are pertinent and applicable. We quote Judge Guillermo Guevara on hisCommentaries on the Revised Penal Code, 4th Edition, pages 42 to 43:

The Supreme Court of Spain held that in order that this exempting circumstances may betaken into account, it is necessary that there be a complete deprivation of intelligence incommitting the act, that is, that the accused be deprived of reason; that there be noresponsibility for his own acts; that he acts without the least discernment; 1 that there be acomplete absence of the power to discern, or that there be a total deprivation of freedom ofthe will. For this reason, it was held that the imbecility or insanity at the time of thecommission of the act should absolutely deprive a person of intelligence or freedom of will,because mere abnormality of his mental faculties does not exclude imputability.2

The Supreme Court of Spain likewise held that deaf-muteness cannot be equaled toimbecility or insanity.

The allegation of insanity or imbecility must be clearly proved. Without positive evidence thatthe defendant had previously lost his reason or was demented, a few moments prior to orduring the perpetration of the crime, it will be presumed that he was in a normal condition.

Acts penalized by law are always reputed to be voluntary, and it is improper to conclude thata person acted unconsciously, in order to relieve him from liability, on the basis of his mental

condition, unless his insanity and absence of will are proved.

As to the strange behaviour of the accused during his confinement, assuming that it was not feignedto stimulate insanity, it may be attributed either to his being feebleminded or eccentric, or to a morbidmental condition produced by remorse at having killed his wife. From the case of UnitedStates vs. Vaquilar (27 Phil. 88), we quote the following syllabus:

Testimony of eye-witnesses to a parricide, which goes no further than to indicate that theaccused was moved by a wayward or hysterical burst of anger or passion, and othertestimony to the effect that, while in confinement awaiting trial, defendant actedabsentmindedly at times, is not sufficient to establish the defense of insanity. The conduct ofthe defendant while in confinement appears to have been due to a morbid mental condition

produced by remorse.

After a careful study of the record, we are convinced that the appellant is not an imbecile. Accordingto the evidence, during his marriage of about 16 years, he has not done anything or conductedhimself in anyway so as to warrant an opinion that he was or is an imbecile. He regularly anddutifully cultivated his farm, raised five children, and supported his family and even maintained inschool his children of school age, with the fruits of his work. Occasionally, as a side line he madecopra. And a man who could feel the pangs of jealousy to take violent measure to the extent ofkilling his wife whom he suspected of being unfaithful to him, in the belief that in doing so he was

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vindicating his honor, could hardly be regarded as an imbecile. Whether or not his suspicions werejustified, is of little or no import. The fact is that he believed her faithless.

But to show that his feeling of jealousy had some color of justification and was not a mere product ofhallucination and aberrations of a disordered mind as that an imbecile or a lunatic, there is evidenceto the following effect. In addition to the observations made by appellant in his written statement

Exhibit D, it is said that when he and his wife first went to live in the house of his half brother,Zacarias Formigones, the latter was living with his grandmother, and his house was vacant.However, after the family of Abelardo was settled in the house, Zacarias not only frequented saidhouse but also used to sleep there nights. All this may have aroused and even partly confirmed thesuspicions of Abelardo, at least to his way of thinking.

The appellant has all the sympathies of the Court. He seems to be one of those unfortunate beings,simple, and even feebleminded, whose faculties have not been fully developed. His action in pickingup the body of his wife after she fell down to the ground, dead, taking her upstairs, laying her on thefloor, and lying beside her for hours, shows his feeling of remorse at having killed his loved onethough he thought that she has betrayed him. Although he did not exactly surrender to theauthorities, still he made no effort to flee and compel the police to hunt him down and arrest him. Inhis written statement he readily admitted that he killed his wife, and at the trial he made no effort todeny or repudiate said written statement, thus saving the government all the trouble and expense ofcatching him, and insuring his conviction.

Although the deceased was struck in the back, we are not prepared to find that the aggravatingcircumstance of treachery attended the commission of the crime. It seems that the prosecution wasnot intent or proving it. At least said aggravating circumstance was not alleged in the complainteither in the justice of the peace court or in the Court of First Instance. We are inclined to give himthe benefit of the doubt and we therefore declined to find the existence of this aggravatingcircumstance. On the other hand, the fact that the accused is feebleminded warrants the finding inhis favor of the mitigating circumstance provided for in either paragraph 8 or paragraph 9 of article13 of the Revised Penal Code, namely that the accused is "suffering some physical defect whichthus restricts his means of action, defense, or communication with his fellow beings," or such illness

"as would diminish the exercise of his will power." To this we may add the mitigating circumstance inparagraph 6 of the same article, that of having acted upon an impulse so powerful as naturally tohave produced passion or obfuscation. The accused evidently killed his wife in a fit of jealousy.

With the presence of two mitigating circumstances without any aggravating circumstance to offsetthem, at first we thought of the possible applicability of the provisions of article 64, paragraph 5 ofthe Revised Penal Code for the purpose of imposing the penalty next lower to that prescribed byarticle 246 for parricide, which is reclusion perpetua to death. It will be observed however, that article64 refers to the application of penalties which contain three periods whether it be a single divisiblepenalty or composed of three different penalties, each one of which forms a period in accordancewith the provisions of articles 76 and 77, which is not true in the present case where the penaltyapplicable for parricide is composed only of two indivisible penalties. On the other hand, article 63 ofthe same Code refers to the application of indivisible penalties whether it be a single divisiblepenalty, or two indivisible penalties like that ofreclusion perpetua to death. It is therefore clear thatarticle 63 is the one applicable in the present case.

Paragraph 2, rule 3 of said article 63 provides that when the commission of the act is attended bysome mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall beapplied. Interpreting a similar legal provision the Supreme Court in the case ofUnited States vs.Guevara (10 Phil. 37), involving the crime of parricide, in applying article 80, paragraph 2 (rule 3 of

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the old Penal Code) which corresponds to article 63, paragraph 2 (rule 3 of the present RevisedPenal Code), thru Chief Justice Arellano said the following:

And even though the court should take into consideration the presence of two mitigatingcircumstances of a qualifying nature, which it can not afford to overlook, without anyaggravating one, the penalty could not be reduced to the next lower to that imposed by law,

because, according to a ruling of the court of Spain, article 80 above-mentioned does notcontain a precept similar to that contained in Rule 5 of article 81 (now Rule 5, art. 64 of theRev. Penal Code.) (Decision of September 30, 1879.)

Yet, in view of the excessive penalty imposed, the strict application of which is inevitable andwhich, under the law, must be sustained, this court now resorts to the discretional powerconferred by paragraph 2 of article 2 of the Penal Code; and.

Therefore, we affirm the judgment appealed from with costs, and hereby order that a properpetition be filed with the executive branch of the Government in order that the latter, if it bedeemed proper in the exercise of the prerogative vested in it by the sovereign power, mayreduce the penalty to that of the next lower.

Then, in the case ofPeople vs. Castaeda (60 Phil. 604), another parricide case, the Supreme Courtin affirming the judgment of conviction sentencing defendant to reclusion perpetua, said thatnotwithstanding the numerous mitigating circumstances found to exist, inasmuch as the penalty forparricide as fixed by article 246 of the Revised Penal Code is composed of two indivisible penalties,namely, reclusion perpetua to death, paragraph 3 of article 63 of the said Code must be applied. TheCourt further observed:

We are likewise convinced that appellant did not have that malice nor has exhibited suchmoral turpitude as requires life imprisonment, and therefore under the provisions of article 5of the Revised Penal Code, we respectfully invite the attention of the Chief Executive to thecase with a view to executive clemency after appellant has served an appreciable amount ofconfinement.

In conclusion, we find the appellant guilty of parricide and we hereby affirm the judgment of the lowercourt with the modification that the appellant will be credited with one-half of any preventiveimprisonment he has undergone. Appellant will pay costs.

Following the attitude adopted and the action taken by this same court in the two cases above cited,and believing that the appellant is entitled to a lighter penalty, this case should be brought to theattention of the Chief Executive who, in his discretion may reduce the penalty to that next lowerto reclusion perpetua to death or otherwise apply executive clemency in the manner he sees fit.

Moran, Bengzon, C. J., Paras, Feria, Pablo, Tuason, Reyes, and Jugo, JJ., concur.

PADILLA, J .:

I concur in the result.

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