Criminal Law Cases ( Justifying Circumstances) 92r3q

CRIMINAL LAW CASES : )) ARTICLE 11- JUSTIFYING CIRCUMSTANCES 1. DELA CRUZ vs. PEOPLE G.R. No. 189405 ,November 19, 2014 This is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to annul and set aside the May 7, 2009 Decision 1 of the Court of Appeals, in CA-G.R. CV No. 89257, finding petitioner Sherwin Dela Cruz guilty beyond reasonable doubt of the crime of Homicide, and its August 19, 2009 Resolution2 denying his motion for reconsideration. Petitioner was charged with the crime of Homicide in an Information 3 dated March 2, 2005, which alleged: That on or about the 1st day of January 2005, in the City of Makati, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to kill and with the use of an unlicensed firearm, did then and there wilfully, unlawfully and feloniously attack, assault and shoot one JEFFREY WERNHER GONZALES Y LIM on the head, thereby inflicting upon the latter serious and moral gunshot wound which directly caused his death. CONTRARY TO LAW.4 According to the prosecution, on January 1, 2005, at around 2:30 in the afternoon, petitioner went to the office of Sykes Asia Inc. located at the 25th Floor of Robinson’s Summit Center,Ayala Avenue, Makati City. When petitioner was already inside the building, he went to the work station of the deceased victim, Jeffrey Wernher L. Gonzales (Jeffrey), who, by the configuration of the eye witness Antonette Managbanag’s sketch, was seated fronting his computer terminal, with his back towards the aisle. As petitioner approached Jeffrey from the back, petitioner was already holding a gun pointed at the back of Jeffrey’s head. At the last second, Jeffrey managed to deflect the hand of petitioner holding the gun, and a short struggle for the possession of the gun ensued thereafter. Petitioner won the struggle and remained in possession of the said gun. Petitioner then pointed the gun at Jeffrey’s face, pulled the trigger four (4) times, the fourth shot finally discharging the bullet that hit Jeffrey in the forehead, eventually killing him. Finally, after shooting Jeffrey, petitioner fled the office. The defense recounted a different version of the facts. Petitioner claimed that on January1, 2005, at around 2:30 in the afternoon, more or less, petitioner, together with his children, went to Sykes Asia, the workplace of his wife, Darlene Dela Cruz (Darlene), located at the 25th Floor of Robinson’s Summit Building in Makati City, to fetch the latter so that their family could spend time and celebrate together the New Year’s Day. Before entering the Robinson’s Summit Building, petitioner underwent the regular security checkup/procedures. He was frisked by the guards-on-duty manning the main entrance of said building and no firearm was found in his possession. He ed his name at the security logbook and surrendered a valid I.D. Upon reaching the 25th Floor of the same building, a security guard manning the entrance once again frisked petitioner and, likewise, found no gun in his possession; hence, he was allowed to enter the premises of Sykes Asia. The security guard also pointed to him the direction towards his wife’s table.

However, as Darlene was then not on her table, petitioner approached a certain man and asked the latter as to the possible whereabouts of Darlene. The person whom petitioner had talked towas the deceased-victim, Jeffrey. After casually introducing himself as the husband of Darlene, Jeffrey curtly told him, "Bakit mo hinahanap si Darlene?"to which he answered, "Nagpapasundo kasi sa akin."The response given by Jeffrey shocked and appalled petitioner: "Ayaw na nga ng asawa mo sayo sinusundo mo pa!" Shocked by the words and reaction of Jeffrey, petitioner tried to inquire from Jeffrey who he was. But Jeffrey suddenly cursed petitioner. Then, Jeffrey suddenly picked up something in his chair which happened to be a gun and pointed the same at petitioner’s face followed by a clicking sound. The gun, however, did not fire. Seeing imminent danger to his life,petitioner grappled with Jeffrey for the possession of the gun.While grappling, the gunclicked for two (2) to three (3) more times. Again, the gun did not fire. Petitioner was able to wrest away the gun from Jeffrey and tried to run away to avoid any further confrontation with the latter.However, Jeffrey immediately blocked petitioner’s path and shouted, "Guard! Guard!" Immediately then, Jeffrey took hold ofa big fire extinguisher, aimed and was about to smash the same on petitioner’s head. Acting instinctively, petitioner parried the attack while still holding the gun. While in the act of parrying, the gun accidentally fired due to the reasonable force and that his parrying hand had made with the fire extinguisher and the single bullet discharged hit the forehead of Jeffrey, which caused the latter to fall on the floor and die. Petitioner left the gun and went out ofthe premises of Sykes Asia and proceeded towards the elevator. On his way to the elevator, he heard Darlene shout, "Sherwin anong nangyari?", but he was not able to answer. After said incident, Darlene abandoned petitioner and brought with her their two (2) young children. Petitioner later learned that Darlene and Jeffrey had an illicit relationship when he received a copy of the blog of Darlene, dated January 30, 2005, sent by his friend. During his arraignment, on August 22, 2005, petitioner, with the assistance of counsel, pleaded "Not Guilty" to the charge. Thereafter, pretrial conference was conducted on even date and trial on the merits ensued thereafter. During the trial of the case, the prosecution presented the oral testimonies of Marie Antonette Managbanag (Managbanag), Maria Angelina Pelaez (Pelaez) and Carlos Alberto Lim Gonzales (Gonzales), respectively. The prosecution likewise formally offered several pieces of documentary evidence to its claim. For its part, the defense presented aswitnesses, petitioner himself; his brother, Simeon Sander Dela Cruz III (Cruz), Greg Lasmarias Elbanvuena (Elbanvuena) and Managbanag, who was recalled to the witness stand as witness for the defense. Page 2 of 141

On February 26, 2007, the Regional Trial Court (RTC)of Makati City, Branch 147, rendered a Decision5 finding petitioner guilty beyond reasonable doubt of the crime of Homicide, as defined and penalized under Article 249 of the Revised Penal Code (RPC), the fallo thereof reads: WHEREFORE, Judgment is rendered finding herein accused Sherwin Dela Cruz y Gloria Guilty beyond reasonable doubt of the crime of Homicide as defined and penalized under Art. 249 of the Revised Penal Code, and sentencing him to suffer the indeterminate penalty of Eight (8) years and One (1) day of prision mayor medium as Minimum to Fourteen (14) years eight (8) months and one (1) day of reclusion temporal medium as Maximum; to indemnify the Heirs of Jeffrey Wernher Gonzales y Lim in the amount of P50,000.00 plus moral damages in the amount of P1 Million, and to pay the costs. SO ORDERED.6 On March 28, 2007, petitioner filed a Notice of Appeal, while private respondent, through the private prosecutor, filed a Notice of Appeal on April 11, 2007 insofar as the sentence rendered against petitioner is concerned and the civil damages awarded. After the denial of their motion for reconsideration, petitioner elevated the case to the Court of Appeals (CA). However, the latter denied their appeal and affirmed the RTC decision with modification on the civil liability of petitioner. The decretal portion of the Decision 7 reads: WHEREFORE, we hereby AFFIRM the Decision of the Regional Trial Court of Makati, Branch 147 dated 26 February 2007 finding accused-appellant Sherwin Dela Cruz y Gloria GUILTY beyond reasonable doubt of the crime ofHomicide with the following MODIFICATIONS: (1) to pay the heirs of the victim the amount of P50,000.00 as civil indemnity; (2) the amount of P50,000.00 as moral damages; (3) the amount of P25,000.00 as temperate damages; (4) the amount of P3,022,641.71 as damages for loss of earning capacity. (5) to pay the costs of the litigation. SO ORDERED.8 Petitioner's motion for reconsideration was denied. Hence, the present petition. Raised are the following issues for resolution: 1. WHETHER ALL THE REQUISITES OF THE JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE, AS PROVIDED FOR BY LAW AND SETTLED JURISPRUDENCE, ARE PRESENT IN THIS CASE. 2. WHETHER THE FIRING OF THE GUN WHEREIN ONLY A SINGLE BULLET WAS DISCHARGED THEREFROM WAS MERELY ACCIDENTAL WHICH OCCURRED DURING THE TIME THAT THE

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PETITIONER-APPELLANT WAS STILL IN THE ACT OF DEFENDING HIMSELF FROM THE CONTINUOUS UNLAWFUL AGGRESSION OF THE DECEASED VICTIM. 3. WHETHER THE PROSECUTION WAS ABLE TO PROVE ALL THE ESSENTIAL ELEMENTS CONSTITUTING THE CRIME OF HOMICIDE. 4. WHETHER THE PRIVILEGED APPLICABLE IN THIS CASE.

MITIGATING

CIRCUMSTANCE

OF

SELF-DEFENSE

IS

5. WHETHER PETITIONER-APPELLANT MAY BE HELD CIVILLY LIABLE FOR THE DEATH OF THE VICTIM ARISING FROM THE ACCIDENT THAT TRANSPIRED.9 There is no question that petitioner authored the death of the deceased-victim, Jeffrey. What is leftfor determination by this Court is whether the elements of self-defenseexist to exculpate petitioner from the criminal liability for Homicide. The essential requisites of self-defense are the following: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel such aggression; and (3) lackof sufficient provocation on the part of the person resorting to self-defense. 10 In other words, there must have been an unlawful and unprovoked attack that endangered the life of the accused, who was then forced to inflict severe wounds upon the assailant by employing reasonable means to resist the attack.11 Considering that self-defense totally exonerates the accused from any criminal liability, it is well settled thatwhen he invokes the same, it becomes incumbent upon him to prove by clear and convincing evidence that he indeed acted in defense of himself. 12 The burden of proving that the killing was justified and that he incurred no criminal liability therefor shifts upon him. 13 As such, he must rely on the strength of his own evidence and not on the weakness of the prosecution for, even if the prosecution evidence is weak, it cannot be disbelieved after the accused himself has itted the killing.14 Measured against this criteria, wefind that petitioner's defense is sorely wanting. Hence, his petition must be denied. First. The evidence on record does not petitioner's contention that unlawful aggression was employed by the deceased-victim, Jeffrey, against him. Unlawful aggression is the most essential element of self-defense. It presupposes actual, sudden, unexpected or imminent danger — not merely threatening and intimidating action. 15 There is aggression, only when the one attacked faces real and immediate threat to his life. 16 The peril sought to be avoided must be imminent and actual, not merely speculative. 17 In the case at bar, other than petitioner’s testimony, the defense did not adduce evidence to show that Jeffrey condescendingly responded to petitioner’s questions or initiated the confrontation before the shooting incident; that Jeffrey pulled a gun from his chair and tried to shoot petitioner but failed — an assault which may have caused petitioner to fear for his life.

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Even assuming arguendothat the gun originated from Jeffrey and an altercation transpired, and therefore, danger may have in fact existed, the imminence of that danger had already ceased the moment petitioner disarmed Jeffrey by wresting the gun from the latter. After petitioner had successfully seized it, there was no longer any unlawful aggression to speak of that would have necessitated the need to kill Jeffrey. As aptly observed by the RTC, petitioner had every opportunity to run away from the scene and seek help but refused to do so, thus: In this case, accused and the victim grappled for possession of the gun.1avvphi1 Accused itted that he wrested the gun from the victim. From that point in time until the victim shouted "guard, guard", then took the fire extinguisher, there was no unlawful aggression coming from the victim. Accused had the opportunity to run away. Therefore, even assuming that the aggression with use of the gun initially came from the victim, the fact remains that it ceased when the gun was wrested away by the accused from the victim. It is settled that when unlawful aggression ceases, the defender no longer has any right to kill or wound the former aggressor, otherwise, retaliation and not self-defense is committed (Peo Vs. Tagana, 424 SCRA 620). A person making a defense has no more right to attack an aggressor when the unlawful aggression has ceased (PeoVs. Pateo, 430 SCRA 609). Accused alleged that the victimwas about to smash the fire extinguisher on his (accused’s) headbut he parried it with his hand holding the gun. This is doubtful as nothing in the records is or would be corroborative of it.In contrast, the two (2) Prosecution witnesses whose credibility was not impeached, both gave the impression that the victim got the fire extinguisher to shieldhimself from the accused who was then already in possession of the gun. 18 Thus, when an unlawful aggression that has begun no longer exists, the one who resorts to selfdefense has no right to kill or even wound the former aggressor. 19 To be sure, when the present victim no longer persisted in his purpose or action to the extent that the object of his attack was no longer in peril, there was no more unlawful aggression that would warrant legal self-defense on the part of the offender.20 Undoubtedly, petitioner went beyond the call of self-preservation when he proceeded to inflict excessive, atrocious and fatal injuries on Jeffrey, even when the allegedly unlawful aggression had already ceased. More, a review of the testimony of the prosecution witness, Pelaez, will show that if there was unlawful aggression in the instant case, the same rather emanated from petitioner, thus: DIRECT EXAMINATION Atty. Mariano: Q: Can you relate to the Court, Ms. Witness, how did this incident happen? A: We were still at work, we were expecting calls but there were no calls at the moment and I was standing at my work station and then Sherwin approached Jeff and he pointed a gun at the back of the head of Jeff. Q: And then what happened? A: And then Jeff parried the gun and they started struggling for the possession of the gun. Page 5 of 141

Q: How far were you from this struggle when you witnessed it? A: Probably 10 to 12 feet. Q: Going back to your story, Ms. Witness, you mentioned that after Jeffrey warded off the gun, they started to struggle, what happened after that, if any? A: After they struggled, the gun clicked three times and then after that Jeff tried to get hold of the fire extinguisher and the fourth shot went off and then Jeffrey fell down. Q: And who was holding the gun? A: Sherwin was holding the gun. (TSN, Oct. 17, 2005, pp. 12-14) CROSS-EXAMINATION: Atty. Agoot: Q: So you did not see when Sherwin approached Jeffrey because he came from the other side? Atty. Mariano: Objection, your Honor, witness already answered that. Atty. Agoot: I am on cross examination, your Honor. COURT You didn’t not see when he approached Jeffrey? A: No, as I said, I saw him point the gun at the back of Jeff and he did not come from my side so that means… COURT No, the question is, You did not actually see Sherwin approached Jeffrey? A: I saw him already at the back of Jeffrey. Atty. Agoot He was already at the back of Jeffrey when you saw him? A: Yes, Sir. (TSN, Oct. 17, 2005, pp. 26-27)21 Clearly, petitioner's allegation that when he approached Jeffrey, the latter pulled a gun from his chair and tried to shoot him, is not corroborated by separate competent evidence. Pitted against the testimony of prosecution witnesses, Managbanag and Pelaez, it pales incomparison and loses probative value. We have, on more thanone occasion, ruled that the plea of self-defense cannot Page 6 of 141

be justifiably entertained where it is not only uncorroborated by any separate competent evidence but also extremely doubtful in itself. 22 In addition, other than petitioner’s testimony, there is dearth of evidence showing that the alleged unlawful aggression on the part of Jeffrey continued when he blocked the path of petitioner while the latter tried to run away to avoid further confrontation with Jeffrey. We also agree with the findings of the RTC that there was no proof evincing that Jeffrey aimed and intended to smash the big fire extinguisher on petitioner’s head. Alternatively, the prosecution witnesses maintained an impression that Jeffrey used the same to shield himself from petitioner who was then in possession of the gun, a deadly weapon. An excerpt of the testimony of Managbanag bares just that, to wit: Atty. Agoot Q: And then after pulling the fire extinguisher from the wall Jeffrey again faced the person who was holding the gun already? Witness: A: He was holding the fire extinguisher like this. COURT For the record. Atty. Mariano: Witness demonstrating how the victim Jeffrey Gonzales was holding the fire extinguisher upright with his right hand above the fire extinguisher and his left hand below the fire extinguisher. Witness: The left hand would the weight basically. Atty. Agoot Q: And then he used that fire extinguisher to protect himself from the slapping of that person who was in possession of the gun? Witness A: Yes, sir. Atty. Agoot Q: And then after that there was again a grappling? Witness Page 7 of 141

A: No more grappling for possession. Because Jeffrey was still holding the fire extinguisher at thattime. And then he fell holding on to the fire extinguisher. Atty. Agoot Q: You said here which I quote "binaril siya ng lalaki ng sunod-sunod pero hindi pumutok" Do you affirmand confirm this statement? Witness A: Yes, sir. They were pushing each other. The other person was trying to point the gun at Jeffrey and Jeffrey was trying to cover himself with the fire extinguisher so nagkakatulakan sila at the same time. Atty. Agoot Q: You said that the gun clicked, how many times did the gun click without firing? Witness A: Three (3) times, sir. Atty. Agoot Q: And what did the late Jeffrey do when the gun clicked but did not fire? Witness A: They were still pushing each other at that time. Atty. Agoot Q: Using the fire extinguisher, heused that to push against the person… Witness A: Basically trying to cover himself and trying to push away the person who was pointing the gun at him. Atty. Agoot Q: And why do you know that Jeffrey was trying hard to push the fire extinguisher? Witness A: Because I was seated roughly about 5 to 6 feet away from them. So I clearly saw what was going on at that time. Page 8 of 141

(Direct Examination of Marie Antonette Managbanag for the Defense, TSN dated 04 September 2006, pp. 12-17, emphasis supplied)23 Petitioner’s contention that Jeffrey’s unlawful aggression was continuous and imminent is, therefore, devoid of merit. Given that the criteria of unlawful aggression is indubitably absent in the instant case, the severe wounds inflicted by petitioner upon Jeffrey was unwarranted and, therefore, cannot be considered a justifying circumstance under pertinent laws and jurisprudence. Second. Even assuming that the unlawful aggression emanated from the deceased victim, Jeffrey, the means employed by petitioner was not reasonably commensurate to the nature and extent of the alleged attack, which he sought to avert. As held by the Court in People v. Obordo: 24 Even assuming arguendo that there was unlawful aggression on the part of the victim, accusedappellant likewise failed to prove that the means he employed to repel Homer's punch was reasonable. The means employed by the person invoking self-defense contemplates a rational equivalence between the means of attack and the defense. Accused appellant claimed that the victim punched him and was trying to get something from his waist, so he (accused-appellant) stabbed the victim with his hunting knife. His act of immediately stabbing Homer and inflicting a wound on a vital part ofthe victim's body was unreasonable and unnecessary considering that, as alleged by accused-appellant himself, the victim used his bare fist in throwing a punch at him. 25 Indeed, the means employed by a person resorting to self-defense must be rationally necessary to prevent or repel an unlawful aggression. The opposite was, however, employed by petitioner, as correctly pointed out by the RTC, thus: The victim was holding the fire extinguisher while the second was holding the gun. The gun and the discharge thereof was unnecessary and disproportionate to repel the alleged aggression with the use of fire extinguisher. The rule is that the means employed by the person invoking selfdefense contemplates a rational equivalence between the means of attack and the defense (Peo vs. Obordo, 382 SCRA 98). It was the accused who was in a vantage position as he was armed with a gun, as against the victim who was armed, so to speak, with a fire extinguisher, which is not a deadly weapon. Under the circumstances, accused’s alleged fear was unfounded. The Supreme Court has ruled that neither an imagined impending attack nor an impending or threatening attitude is sufficient to constitute unlawful aggression (Catalina Security Agency Vs. Gonzales-Decano, 429 SCRA 628). It is a settled rule that to constitute aggression, the person attacked must be confronted by a real threat on his lifeand limb; and the peril sought to be avoided is imminent and actual, not merely imaginary (Senoja v. Peo., 440 SCRA 695).26 If petitioner had honestly believed that Jeffrey was trying to kill him, he should have just run, despite any obstruction, considering that he was already in possession of the gun. He could have also immediately sought help from the people around him, specifically the guard stationed at the floor where the shooting incident happened. In fact, he could have reported the incident to the Page 9 of 141

authorities as soon as he had opportunity to do so, if it was indeed an accident or a cry of selfpreservation. Yet, petitioner never did any of that. We find it highly specious for petitioner to go through the process of tussling and hassling with Jeffrey, and inthe end, shooting the latter on the forehead, not only once, but four times, the last shot finally killing him, if he had no intention to hurt Jeffrey. Thus: Moreover, the Prosecution’s eyewitnesses were consistent in declaring that while there was prior struggle for the possession of the gun, it was nevertheless accused who was holding the gun at the time of the actual firing thereof (TSN, p. 30, October 10, 2005; TSN, p. 14, October 17, 2005). Witness Managbanag even alleged that while the victim (Jeffrey), who was in possession of the fire extinguisher, and the accused were pushing each other, accused pointed the gun at the victim. She heard three (3) clicks and on the 4th , the gun fired (TSN, p. 12, October 10, 2005). Under the circumstances, it cannot be safely said that the gun was or could have been fired accidentally. The discharge of the gun which led to the victim’s death was no longer made in the course of the grapple and/or struggle for the possession of the gun. 27 The observation of the RTC dispels any doubt that the gun may have been shot accidentally to the detriment of Jeffrey. The fire was neither a disaster nor a misfortune of sorts. While petitioner may nothave intended to kill Jeffrey at the onset, at the time he clicked the trigger thrice consecutively, his intent to hurt (or even kill) Jeffrey was too plain to be disregarded. We have held in the pastthat the nature and number of wounds are constantly and unremittingly considered important indicia which disprove a plea of self-defense. 28 Thus, petitioner’s contention that an accident simultaneously occurred while hewas in the act of self-defense is simply absurd and preposterous at best. There could nothave been an accident because the victim herein suffered a gunshot wound on his head, a vital part of the body and, thus, demonstrates a criminal mind resolved to end the life of the victim. Besides, petitioner’s failure to inform the police of the unlawful aggression on the part of Jeffrey and to surrender the gun that he used to kill the victim militates against his claim of selfdefense.29 In view of the foregoing, we find it illogical to discuss further the third element of self-defense since it is recognized that unlawful aggression is a conditio sine qua nonfor upholding the justifying circumstance of self-defense.30 If there is nothing to prevent or repel, the other two requisites of self-defense will have no basis. 31 Hence, there is no basis to entertain petitioner’s argument that a privileged mitigating circumstance of selfdefense is applicable in this case, because unless the victim has committed unlawful aggression against the other, there can be no self-defense, complete or incomplete, on the part of the latter. 32 Anent petitioner’s argument thatthe RTC erred when it failed to consider as suppression of evidence the prosecution’s alleged deliberate omission to present the testimonies of the security guards-on-duty at the time of the shooting incident, the same fails to persuade. We concur with the decision of the CA on this point, to wit: Having itted the killing of the victim, the burden of evidence that he acted in self-defense, shifted to accused-appellant Dela Cruz. He must rely on the strength of his own evidence and not Page 10 of 141

on the weakness of the prosecution’s evidence, for, even if the latter were weak, it could not be disbelieved after his open ission of responsibility for the killing. The security guards on duty at the time of the subject incident were at the disposal of both the prosecution and the defense. The defense did not proffer proof that the prosecution prevented the security guards from testifying. There is therefore no basis for it to conclude that the prosecution is guilty of suppression of evidence. The defense could have easily presented the security guards if it is of the opinion that their [the security guards] testimonies were vital and material to the case of the defense. It could have compelled the security guards on duty to appear before the court. xxx. 33 It is worthy to note that the question of whether petitioner acted in self-defense is essentially a question of fact.34 It is the peculiar province of the trial court to determine the credibility of witnesses and related questions of fact because of its superior advantage in observing the conduct and demeanor of witnesses while testifying. 35 This being so and in the absence of a showing that the CA and the RTC failed to appreciate facts or circumstances of such weight and substance that would have merited petitioner's acquittal, this Court finds no compelling reason to disturb the ruling of the CA that petitioner did not act in self-defense. 36 In this regard, we do not subscribe to petitioner’s contention that since the incident transpired in Jeffrey’s office, and the witnesses presented by the prosecution are known officemates of Jeffrey, the witnesses are expected to testify in favor of Jeffrey and against petitioner. Ascorrectly pointed out by respondent, there appears no motive on the part of the prosecution witnesses to falsely testify against petitioner.37 The fact that they are officemates of Jeffrey does not justify a conclusion that Managbanag and Pelaez would concoct or fabricate stories in favorof Jeffrey for the mere purpose of implicating petitioner with such a serious crime, especially since they are testifying under oath. All told, we find no basis to doubt ordispute, much less overturn, the findings of the RTC and the CA that the elements of homicide are present in the instant case as amply shown by the testimonies of the prosecution eyewitnesses, and they constitute sufficient proof of the guilt of petitioner beyond cavil or doubt. Nevertheless, with regard to the appreciation of the aggravating circumstance of use of an unlicensed firearm, we deviate from the findings of the CA. A perusal of the Information will show that the use of unlicensed firearm was expressly alleged in the killing of Jeffrey. This allegation was further proved during trial by the presentation of the Certification from the PNP Firearms and Explosives Division, dated November 11, 2005, certifying that petitioner is not a licensed/ed firearm holder of any kind and calibre, per verification from the records of the said Division. Accordingly, under Paragraph 3 of Section 1 of Republic Act (R.A.) No. 8294, amending Section 1 of Presidential Decree (P.D.) No. 1866, such use of an unlicensed firearm shall be considered as an aggravating circumstance, to wit: xxxx

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If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. x x x x. Under Article 249 of the RPC, the penalty for homicide is reclusion temporal. There being an aggravating circumstance of use of unlicensed firearm, the penalty imposable on petitioner should be in its maximum period. 38Applying the Indeterminate Sentence Law, the petitioner shall be sentenced to an indeterminate penalty of from ten (10) years and one (1) day of prision mayor maximum, as the minimum penalty, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal maximum, as the maximum penalty. As to the award of civil indemnity, moral damages, and damages for loss of earning capacity in favor ofprivate respondent, we sustain the findings of the CA in so far as they are in accordance with prevailing jurisprudence. In addition, we find the grant of exemplary damages in the present case in order, since the presence of special aggravating circumstance of use of unlicensed firearm has been established.39 Based on current jurisprudence, the award of exemplary damages for homicide is P30,000.00.40 Finally, pursuant to this Court’s ruling in Nacar v. Gallery Frames, 41 an interest of six percent (6%) per annum on the aggregate amount awarded for civil indemnity and damages for loss of earning capacity shall be imposed, computed from the time of finality of this Decision until full payment thereof. WHEREFORE, the petition is DENIED. The May 7, 2009 Decision and August 19, 2009 Resolution of the Court of Appeals in CA-G.R. CV No. 89257, finding petitioner Sherwin Dela Cruz guilty beyond reasonable doubt of the crime of Homicide, are hereby AFFIRMED with MODIFICATIONS, to wit: (1) Petitioner shall be sentenced to an indeterminate penalty of from ten (10) years and one (1) day of prision mayor maximum, as the minimum penalty, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal maximum, as the maximum penalty; (2) Petitioner is likewise ORDERED to pay the heirs of the victim the following: a. the amount of P50,000.00 as civil indemnity; b. the amount of P50,000.00 as moral damages; c. the amount of P25,000.00 as temperate damages; d. the amount of P30,000.00 as exemplary damages; e. the amount of P3,022,641.71 as damages for loss of earning capacity;

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f. for the civil indemnity and the damages for loss of earning capacity, an interest of six percent (6%) per annum, computed from the time of finality of this Decision until full payment thereof; and g. the costs of the litigation. 2. CRUZ vs. PEOPLE G.R. No. 166441, October 8, 2014 BERSAMIN, J.: The intent of the offender to lie with the female defines the distinction between attempted rape and acts of lasciviousness. The felony of attempted rape requires such intent; the felony of acts of lasciviousness does not. Only the direct overt acts of the offender establish the intent to lie with the female. However, merely climbing on top of a naked female does not constitute attempted rape without proof of his erectile penis being in a position to penetrate the female's vagina. The Case This appeal examines the decision promulgated on July 26, 2004, 1 whereby the Court of Appeals (CA) affirmed the conviction for attempted rape of the petitioner by the Regional Trial Court, Branch 34, in Balaoan, La Union (RTC), and imposing on him the indeterminate penalty of imprisonment of four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum, and ordering him to pay moral damages of P20,000.00 to AAA,2 the victim. Antecedents The petitioner was charged in the RTC with attempted rape and acts of lasciviousness involving different victims. At arraignment, he pleaded not guiltyto the respective informations, to wit: Criminal Case No. 2388 Attempted Rape That on or about the 21st day of December 1993, at about 2:00 o'clock in the morning, along the Bangar-Luna Road, Barangay Central West No. 2, Municipality of Bangar,Province of La Union, Philippines and within the jurisdiction of this Honorable Court, said accused, did then and there willfully, unlawfully and feloniously and by means of force and intimidation commenced the commission ofrape directly byovert acts, to wit: While private complainant AAA, an unmarried woman, fifteen (15) yearsold, was sleeping inside the tentalong Bangar-Luna Road, the said accused remove her panty and underwear and lay on top of said AAA embracing and touching her vagina and breast with intent of having carnal knowledge of her by means of force, and if the accused did not accomplish his purpose that is to have carnal knowledge of the said AAA it was not because of his voluntary desistance but because the said offended party succeeded in resisting the criminal attempt of said accused to the damage and prejudice of said offended party. Page 13 of 141

CONTRARY TO LAW.3 Criminal Acts of Lasciviousness

Case

No.

2389

That on or about the 21st day of December 1993, at about 3:00 o’clock in the morning, along the Bangar-Luna Road, Barangay Central West No. 2, Municipality of Bangar, Province of La Union, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with lewd design, did then and there willfully, unlawfully and feloniously touch the vagina of [BBB]4 against the latter’s will and with no other purpose but to satisfy his lascivious desire to the damage and prejudice of said offended party. CONTRARY TO LAW.5 Version of the Prosecution The CA summarized the version of the Prosecution as follows: 6 x x x [Petitioner] Norberto Bartolome and [his wife] Belinda Cruz were engaged in the selling of plastic wares and glass wares in different municipalities around the country. On December 20, 1993, Norberto and Belinda employed AAA and BBB to help them in selling their wares in Bangar, La Union which was then celebrating its fiesta. From Libsong East, Lingayen, Pangasinan to Bangar, La Union, AAA and BBB boarded a enger jeepney owned by Norberto. The young girls were accompanied by Norberto, Belinda, Ruben Rodriguez (driver) and a sales boy by the name of "Jess". Upon reaching Bangar, La Union, at around 8:00 in the evening of December 20, 1993, they parked in front of Maroon enterprises. They brought out all the goods and wares for display. Two tents were fixed in order that they will have a place to sleep. Belinda and the driver proceeded to Manila in order to get more goods to be sold. On December 21, 1993, at around 1:00 o’clock in the morning, AAA and BBB went to sleep. Less thanan hour later, AAA was awakened when she felt that somebody was on top of her. Norberto was mashing her breast and touching her private part. AAA realized that she was divested of her clothing and that she was totally naked. Norberto ordered her not to scream or she’ll be killed. AAA tried to push Norberto away and pleaded to have pity on her but her pleas fell on deaf ears. She fought back and kicked Norberto twice. Norberto was not able to pursue his lustful desires. Norberto offered her money and told her not totell the incident to her mother otherwise, she will be killed. AAA went out of the tent to seek help from Jess (the house boy) but she failed to wake him up. Thirty minutes later, when AAA returned to their tent, she saw Norberto touching the private parts of BBB. AAA saw her companion awake but her hands wereshaking. When she finally entered the tent, Norberto left and went outside.

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Later that day, AAA and BBB narrated to Jess the incident that took place that early morning. Later still, while they were on their way to fetch water, AAA and BBB asked the people around where they can find the municipal building. An old woman pointed to them the place. In the evening of December 21, 1993, AAA and BBB went straight to the municipal hall where they met a policeman by the name of "Sabas". They told Sabas the sexual advances made to them by Norberto. Norberto was summoned to the police station where he personally confronted his accs. When Norberto’s wife, Belinda, arrived at the police station, an argument ensued between them. On December 22, 1993, at around 2:20 o’clock in the morning, the police investigator ordered the complainants to return at6:00 o’clock in the morning. Norberto and Belinda were still able to bring AAA and BBB home with them and worked for them until December 30, 1994, after which they were sent back to Lingayen, Pangasinan. On January 10, 1994, AAA and BBB went back to La Union and executed their respective sworn statements against Norberto. Version of the Defense The petitioner denied the criminal acts imputed to him. His version was presented in the assailed decision of the CA,7 as follows: In a bid to exculpate himself, accused-appellant presents a totally different version of the story. The accused maintains that it was not possible for him to commit the crimes hurled against him. On the date of the alleged incident, there were many people around who were preparing for the "simbang gabi". Considering the location of the tents, which were near the road and the municipal hall, he could not possibly do the dastardly acts out in the open, not to mention the fact that once AAA and BBB would scream, the policemen in the municipal hall could hear them. He believes that the reason why the complainants filed these cases against him was solely for the purpose of extorting money from him. Judgment of the RTC After the t trial of the two criminal cases, the RTC rendered its judgment on April 6, 2000 finding the petitioner guilty beyond reasonable doubt of attempted rape in Criminal Case No. 2388 and acts of lasciviousness in Criminal Case No. 2389, 8 to wit: WHEREFORE, in the light of the foregoing, the Court hereby renders judgment declaring the accused NORBERTO CRUZ Y BARTOLOME guilty beyond reasonable doubt of the crimes of ATTEMPTED RAPE and ACTS OF LASCIVIOUSNESS as defined and penalized in Article 335 in relation with (sic) Article 6, par. 3 and Article 336 of the Revised Penal Code respectively. With respect to the crime of ATTEMPTED RAPE, the Court hereby sentences the accused to suffer an indeterminate penalty of imprisonment from FOUR (4) YEARS and TWO (2) MONTHS PRISION CORRECCIONAL as Minimum to TEN (10) YEARS PRISION MAYOR as Maximum and the accessory Page 15 of 141

penalties provided for by law and to pay the victim AAA the amount of P20,000.00 as moral damages. With regard to the crime ofACTS OF LASCIVIOUSNESS, the Court hereby sentences the accused to suffer an indeterminate penalty of imprisonment from FOUR (4) MONTHS ARRESTO MAYOR as Minimum to FOUR (4) YEARS and TWO (2) MONTHS PRISION CORRECCIONAL as Maximum and the accessory penalties provided for by law, and to pay the victim BBBthe amount of P10,000.00 as moral damages. The preventive imprisonment suffered by the accused by reason of the two cases is counted in his favor. SO ORDERED.9 Decision of the CA On appeal, the petitioner contended that the RTC gravely erred in convicting him of attempted rape despite the dubious credibility of AAA, and of acts of lasciviousness despite the fact that BBB did not testify. On July 26, 2004, the CA promulgated its decision affirming the conviction of the petitioner for attempted rape in Criminal Case No. 2388, but acquitting him of the acts of lasciviousness charged in Criminal Case No. 2389 due to the insufficiency of the evidence, 10 holding thusly: In sum, the arguments of the accused-appellant are too puerile and inconsequential as to dent, even slightly, the overall integrity and probative value of the prosecution's evidence insofar as AAA is concerned. Under Article 51 of the Revised Penal Code, the penalty for an attempted felony is the "penalty lower by two (2) degrees" prescribed by law for the consummated felony. In this case, the penalty for rape if it had been consummated would have been reclusion perpetuapursuant to Article 335 of the Revised Penalty Code, as amended by Republic Act No. 7659. The penalty two degrees lower than reclusion perpetuais prision mayor. Applying the Indeterminate Sentence Law, the maximum term of the penalty shall be the medium period of prision mayorin the absence of any mitigating or aggravating circumstance and the minimum shall be within the range of the penalty nextlower to that prescribed for the offense which in this case is prision correccionalin any of its periods. We also find that the trial court correctly assessed the amount of P20,000.00 by way of moral damages against the accused-appellant. In a rape case, moral damages may be awarded without the need of proof or pleading since it is assumed that the private complainant suffered moral injuries, more so, when the victim is aged 13 to 19. Insofar as the crime of acts of lasciviousness committed against BBB, the accused argues that there is not enough evidence to such accusation. BBB did not testify and neither her Page 16 of 141

sworn statement was formally offered in evidence to the charge for acts of lasciviousness. In this case, the evidence adducedby the prosecution is insufficient to substantiate the charge of acts of lasciviousness against the accusedappellant. The basis of the complaint for acts of lasciviousness is the sworn statement of BBB to the effectthat the accused-appellant likewise molested her by mashing her breast and touching her private part. However, she was not presented to testify. While AAA claims that she personally saw the accused touching the private parts of BBB, there was no testimony to the effect that suchlascivious acts were without the consent or against the will of BBB. 11 Issues In this appeal, the petitioner posits that the CA’s decision was not in accord with law or with jurisprudence, particularly: I. In giving credence to the incredulous and unbelievable testimony of the alleged victim; and II. In convicting the accused notwithstanding the failure of the prosecution to prove the guilt of the petitioner beyond reasonable doubt. Anent the first issue, the petitioner assails the behavior and credibility of AAA. He argues that AAA still continued working for him and his wife until December 30, 1994 despite the alleged attempted rape in the early morning of December 21, 1994, thereby belying his commission of the crime against her; that he could not have undressed her without rousing her if she had gone to sleep only an hour before, because her bra was locked at her back; that her testimony about his having been on top of her for nearly an hour while they struggled was also inconceivable unless she either consented to his act and yielded to his lust, or the incident did not happen at all, being the product only of her fertileimagination; that the record does not indicate if he himself was also naked, or that his penis was poised to penetrate her; and that she and her mother demanded from him P80,000.00 as settlement, under threat that she would file a case against him.12 On the second issue, the petitioner assails the glaring inconsistencies in the testimony of AAA that cast doubt on her veracity. Ruling of the Court The appeal is partly meritorious. In an appeal under Rule 45 of the Rules of Court, 13 the Court reviews only questions of law. No review of the findings of fact by the CA is involved. As a consequence of thisrule, the Court accords the highest respect for the factual findings of the trial court, its assessment of the credibility of witnesses and the probative weight of their testimonies and the conclusions drawn from its factual findings, particularly when they are affirmed by the CA. Judicial experience has shown, indeed, that the trial courts are in the best position to decideissues of credibility of Page 17 of 141

witnesses, having themselves heard and seen the witnesses and observed firsthand their demeanor and deportment and the manner of testifying under exacting examination. As such, the contentionsof the petitioner on the credibility of AAA as a witness for the State cannot beentertained. He thereby raises questions of fact that are outside the scope of this appeal. Moreover, he thereby proposes to have the Court, which is not a trier of facts, review the entire evidence adduced by the Prosecution and the Defense. Conformably with this limitation, our review focuses only on determining the question of law of whether or not the petitioner’s climbing on top of the undressed AAA such thatthey faced each other, with him mashing her breasts and touching her genitalia with his hands, constituted attempted rape, the crime for which the RTC and the CA convicted and punished him. Based on the information, supra, he committed such acts "with intent of having carnal knowledge ofher by means of force, and if the accused did not accomplish his purpose that is to have carnal knowledge of the said AAA it was not because of his voluntary desistance but because the said offended party succeeded in resisting the criminal attempt of said accused to the damage and prejudice of said offended party." There is an attempt, according to Article 6 of the Revised Penal Code, when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than this own spontaneous desistance. In People v. Lamahang, 14 the Court, speaking through the eminent Justice Claro M.Recto, eruditely expounded on what overt acts would constitute anattempted felony, to wit: It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical relation to a particular, concrete offense; that, which is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its realization and consummation. The attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal Code. xxxx But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like the logical and natural relation of the cause and its effect, with the deed which, upon its consummation, will develop into one of the offenses defined and punished by the Code; it is necessary to prove that said beginning of execution, if carried to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. x x x x. "It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage iswanting, the nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be inferred from the nature of the acts of execution (accion medio). Hence, the necessity that these acts be such that by their very nature, by the facts to which they are related, by the circumstances of the persons performing the same, and by the things connected therewith, they must show without any doubt, that they are aimed at the consummation of a crime. Acts susceptible of double interpretation, that is, in favor as well as against the culprit, and which show an innocent aswell as a punishable act, must not and cannot furnish grounds by themselves for attempted or frustrated crimes. The relation existing between the facts submitted for appreciation and the offense of which said facts are supposed to produce must be direct; the Page 18 of 141

intention must be ascertainedfrom the facts and therefore it is necessary, in order to avoid regrettable instance of injustice, that the mind be able to directly infer from them the intention of the perpetrator to cause a particular injury. This must have been the intention of the legislator in requiring that in order for an attempt to exist, the offender must commence the commission of the felony directly by overt acts, that is to say, that the acts performed must be such that, withoutthe intent to commit an offense, they would be meaningless." 15 To ascertain whether the acts performed by the petitioner constituted attempted rape, we have to determine the law on rape in effect on December 21, 1993, when the petitioner committed the crime he was convicted of. That law was Article 335 of the Revised Penal Code, which pertinently provided as follows: Article335. When and how rape is committed. — Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived ofreason or otherwise unconscious; and 3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present. xxxx The basic element of rape then and now is carnal knowledge of a female. Carnal knowledge isdefined simply as "theact of a man having sexual bodily connections with a woman," 16 which explains why the slightest penetration of the female genitalia consummates the rape. In other words, rape is consummated once the peniscapable of consummating the sexual act touches the external genitalia of the female.17 In People v. Campuhan,18 the Court has defined the extent of "touching" by the penis in rape in the following : [T]ouching when applied to rape cases does not simply mean mere epidermal , stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim’s vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis indeedtouched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. As the labias, which are required to be "touched" bythe penis, are by their natural situsor location beneath the mons pubisor the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape. The pudendumor vulvais the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubisis the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majoraor the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin Page 19 of 141

skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majorais the labia minora. Jurisprudence dictates that the labia majoramust be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ. xxxx Thus, a grazing of the surface of the female organ or touching the mons pubisof the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendumby the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. [Bold emphasis supplied] It is noteworthy that in People v. Orita, 19 the Court clarified that the ruling in People v. Eriñia20 whereby the offender was declared guilty of frustrated rapebecause of lack of conclusive evidence of penetration of the genital organ of the offended party, was a stray decisionfor not having been reiterated in subsequent cases. As the evolving case law on rape stands, therefore, rape in its frustrated stage is a physical impossibility, considering that the requisites of a frustrated felony under Article 6 of the Revised Penal Codeare that: (1) the offender has performed all the acts of execution which would produce the felony; and (2) that the felony is not produced due to causes independent of the perpetrator’s will. Obviously, the offender attains his purpose from the moment he has carnal knowledge of his victim, because from that moment all the essential elements of the offense have been accomplished, leaving nothing more to be done by him.21 Nonetheless, rape its of an attempted stage. In this connection, the character of the overt actsfor purposes of the attempted stage has been explained in People v. Lizada: 22 An overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. The raison d’etrefor the law requiring a direct overtact is that, in a majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must be lacking before the act becomes one which may be said to be a commencement of the commission of the crime, or an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that so long as the equivocal quality remains, no one can say with certainty what the intent of the accused is.It is necessary that the overt act should have been the ultimate step towards the consummation of the design. It is sufficient if it was the "first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made." The act done need not constitute the last proximate one for completion. It is necessary, however, that the attempt must have a causal relation to the intended crime. In the words of Viada, the overt acts must have an immediate and necessary relation to the offense. (Bold emphasis supplied) In attempted rape, therefore, the concrete felony is rape, but the offender does not perform all the acts of execution of having carnal knowledge. If the slightest penetration of the female genitalia consummates rape, and rape in its attempted stage requires the commencement of the commission of the felony directly by overt actswithout the offender performing all the acts of execution that should produce the felony, the only means by which the overt acts performed by Page 20 of 141

the accused can be shown to have a causal relation to rape as the intended crime is to make a clear showing of his intent to lie with the female. Accepting that intent, being a mental act, is beyond the sphere of criminal law, 23 that showing must be through his overt acts directly connected with rape. He cannot be held liable for attempted rape withoutsuch overt acts demonstrating the intent to lie with the female. In short, the State, to establish attempted rape, must show that his overt acts, should his criminalintent be carried to its complete termination without being thwarted by extraneous matters, would ripen into rape, 24 for, as succinctly put in People v. Dominguez, Jr.:25 "The gauge in determining whether the crime of attempted rape had been committed is the commencement of the act of sexual intercourse, i.e., penetration of the penis into the vagina, before the interruption." The petitioner climbed on top of the naked victim, and was already touching her genitalia with his hands and mashing her breasts when she freed herself from his clutches and effectively ended his designs on her. Yet, inferring from such circumstances thatrape, and no other,was his intended felony would be highly unwarranted. This was so, despite his lust for and lewd designs towards her being fully manifest. Such circumstances remained equivocal, or "susceptible of double interpretation," as Justice Recto put in People v. Lamahang, supra, such that it was not permissible to directly infer from them the intention to cause rape as the particular injury. Verily, his felony would not exclusively be rapehad he been allowed by her to continue, and to have sexual congress with her, for some other felony like simple seduction (if he should employ deceit to have her yield to him)26 could also be ultimate felony. We clarify that the direct overt acts of the petitioner that would have produced attempted rape did not include equivocal preparatory acts. The former would have related to his acts directly connected to rape as the intended crime, but the latter, whether external or internal, had no connection with rape as the intended crime. Perforce, his perpetration of the preparatory acts would not render him guilty of an attempt to commit such felony. 27 His preparatory acts could include his putting up of the separate tents, with one being for the use of AAA and BBB, and the other for himself and his assistant, and his allowing his wife to leave for Manila earlier that evening to buy more wares. Such acts, being equivocal, had no direct connection to rape. As a rule, preparatory acts are not punishable under the Revised Penal Codefor as long as they remained equivocal or of uncertain significance, because by their equivocality no one could determine with certainty what the perpetrator’s intent really was. 28 If the acts of the petitioner did not constitute attempted rape, did they constitute acts of lasciviousness? It is obvious that the fundamental difference between attempted rape and acts of lasciviousness is the offender’sintent to lie with the female. In rape, intent to lie with the female is indispensable, but this element is not required in acts of lasciviousness. 29 Attempted rape is committed, therefore, when the "touching" of the vagina by the penis is coupled with the intent to penetrate. The intent to penetrate is manifest only through the showing of the penis capable of consummating the sexual act touching the external genitalia of the female. 30 Without such showing, only the felony of acts of lasciviousness is committed. 31 Based on Article 336 of the Revised Penal Code, the felony of acts of lasciviousness is consummated whenthe following essential elements concur, namely: (a) the offender commits Page 21 of 141

any act of lasciviousness or lewdness upon another person of either sex; and (b) the act of lasciviousness or lewdness is committed either (i) by using force or intimidation; or (ii) when the offended party is deprived ofreason or is otherwise unconscious; or (iii) when the offended party is under 12 years of age. 32 In that regard, lewdis defined as obscene, lustful, indecent, lecherous; it signifies that form of immorality that has relation to moral impurity; or that which is carried on a wanton manner.33 The information charged that the petitioner "remove[d] her panty and underwear and la[id] on top of said AAA embracing and touching her vagina and breast." With such allegation of the information being competently and satisfactorily proven beyond a reasonable doubt, he was guilty only of acts of lasciviousness, not attempted rape. His embracing her and touching her vagina and breasts did not directly manifest his intent to lie with her. The lack of evidence showing his erectile penis being in the position to penetrate her when he was on top of her deterred any inference about his intent to lie with her. At most, his acts reflected lewdness and lust for her. The intent to commit rape should not easily be inferred against the petitioner, even from his own declaration of it, if any, unless he committed overt acts directly leading to rape. A good illustration of this can be seen in People v. Bugarin, 34 where the accused was charged with attempted rape through an information alleging that he, by means of force and intimidation, "did then and there willfully, unlawfully and feloniously commence the commission of the crime of Rape directly by overt acts, by then and there kissing the nipples and the vagina of the undersigned [complainant], a minor, and about to lay on top of her, all against her will, however, [he] did not perform all the acts of execution which would have produced the crime of Rape by reason of some causes other than his own spontaneous desistance, that is, undersigned complainant push[ed] him away." The accused was held liable only for acts of lasciviousness because the intent to commit rape "is not apparent from the actdescribed," and the intent to have sexual intercourse with her was not inferable from the act of licking her genitalia. The Court also pointed out that the "act imputed to him cannot be considered a preparatory act to sexual intercourse."35 Pursuant to Article 336 of the Revised Penal Code, the petitioner, being guilty of acts of lasciviousness, is punished with prision correccional. In the absence of modifying circumstances, prision correccional is imposed in its medium period, which ranges from two (2) years, four (4) months and one day to four (4) years and two (2) months. Applying the Indeterminate Sentence Law, the minimum of the penalty should come from arresto mayor, the penalty next lower than prision correccionalwhich ranges from one (1) month to six (6) months. Accordingly, the Court fixes the indeterminate sentence of three (3) months of arresto mayor, as the minimum, to two (2) years, four (4) months and one day of prision correccional, as the maximum. In acts of lasciviousness, the victim suffers moral injuries because the offender violates her chastity by his lewdness.1âwphi1 "Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act for omission." 36 Indeed, Article 2219, (3), of the Civil Code expressly recognizes the right of the victim in acts of lasciviousness to recover moral damages. 37 Towards that end, the Court, upon its appreciation of Page 22 of 141

the record, decrees that P30,000.00 is a reasonable award of moral damages. 38 In addition, AAA was entitled to recover civil indemnity of P20,000.00.39 Under Article 2211 of the Civil Code, the courts are vested with the discretion to impose interest as a part of the damages in crimes and quasidelicts. In that regard, the moral damages of P20,000.00 shall earn interest of 6% per annum reckoned from the finality of this decision until full payment.40 WHEREFORE, the Court FINDS and PRONOUNCES petitioner NORBERTO CRUZ y BARTOLOME guilty of ACTS OF LASCIVIOUSNESS, and, ACCORDINGLY, PENALIZES him with the indeterminate sentence of three (3) months of arresto mayor, as the minimum, to two (2) years, four (4) months and one day of prision correccional, as the maximum; ORDERS him to pay moral damages of P30,000.00 and civil indemnity of P20,000.00 to the complainant, with interest of 6% per annum on such awards reckoned from the finality of this decision until full payment; and DIRECTS him to pay the costs of suit. SO ORDERED. 3. GUEVARRA vs. PEOPLE G.R. No. 170462 ,February 5, 2014 BRION, J.: We review in this petition for review on certiorari 1 the decision2 dated October 24, 2005 of the Court of Appeals (CA) in CA-G.R. CR No. 28899. The CA affirmed, with modification on the amount of damages, the t decision 3dated April 16, 2004 of the Regional Trial Court (RTC), Branch 20, Cauayan City, Isabela, finding Rodolfo Guevarra and Joey Guevarra (petitioners) guilty beyond reasonable doubt of the crimes of frustrated homicide and homicide. Factual Antecedents Rodolfo and his son, Joey, were charged with the crimes of frustrated homicide and homicide under two Informations which read: In Criminal Case No. Br. 20-1560 for Frustrated Homicide: That on or about the 8th day of January, 2000, in the municipality of Alicia, province of Isabela, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conspiring, confederating together and helping one another, with intent to kill and without any just motive, did then and there, willfully, unlawfully and feloniously, assault, attack, hack and stab for several times with a sharp pointed bolo one Erwin Ordonez, who as a result thereof, suffered multiple hack and stab wounds on the different parts of his body, which injuries would ordinarily cause the death of the said Erwin Ordonez, thus, performing all the acts of execution which should have produced the crime of homicide as a consequence, but nevertheless, did not produce it by reason of causes independent of their will, that is, by the timely and able medical assistance rendered to the said Erwin Ordonez, which prevented his death. 4 In Criminal Case No. Br. 20-1561 for Homicide: Page 23 of 141

That on or about the 8th day of January, 2000, in the municipality of Alicia, province of Isabela, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conspiring, confederating together and helping one another, with intent to kill and without any just motive, did then and there, willfully, unlawfully and feloniously, assault, attack, hack and stab for several times with a sharp pointed bolo one David Ordonez, who as a result thereof, suffered multiple hack and stab wounds on the different parts of his body which directly caused his death. 5 Although the informations stated that the crimes were committed on January 8, 2000, the true date of their commission is November 8, 2000, as confirmed by the CA through the records. 6 The parties failed to raise any objection to the discrepancy. 7 On arraignment, the petitioners pleaded not guilty to both charges. 8 The cases were tly tried with the conformity of the prosecution and the defense. At the pre-trial, the petitioners interposed self-defense, which prompted the RTC to conduct a reverse trial of the case. 9 During the trial, the parties presented different versions of the events that transpired on November 8, 2000. Version of the Defense To prove the petitioners' claim of self-defense, the defense presented the testimonies of Rodolfo, Joey, and the petitioners' neighbor, Balbino Agustin. Testimony of Rodolfo Rodolfo, who was then fifty-five (55) years old, narrated that, at around 11 :00 p.m., on November 8, 2000, brothers Erwin Ordonez and David Ordonez, together with their companion, Philip Vingua, forced their way into his compound and threw stones at his house and tricycle. Through the back door of his house, Rodolfo went down to the basement or "silung' and shouted at the three men to stop. David saw him, threatened to kill him, and struck him with a ''panabas," hitting him on the palm of his left hand. Rodolfo responded by reaching for the bolo tucked in the "so/era" of his house, and hacked and stabbed Erwin and David until the two brothers fell to the ground. Upon seeing Erwin and David lying on the ground, Rodolfo called on someone to bring the brothers to the hospital. He stayed in his house until the policemen arrived. Testimony of Joey Joey, who was then thirty-one (31) years old, narrated that, at around 11:00 p.m., on November 8, 2000, he was awakened by the sound of stones being thrown at their house in Bliss, Paddad, Alicia, Isabela. Through the window, he saw Erwin, David and Philip breaking into their gate, which was made of wood and interlink wire and located five ( 5) to six ( 6) meters away from their house. He then heard his father Rodolfo say to the three men, "kung ano man ang problema bukas na natin pag-usapan," 10 and David retorted in their dialect, "Okininam nga lakay adda ka gayam dita, patayin taka."11 Testimony of Balbino Page 24 of 141

Balbino narrated that, from inside his house in Bliss, Paddad, Alicia, Isabela, at around 10:00 p.m., on November 8, 2000, he heard a person from the outside saying "Sige banatan ninyo na."12 He opened his door and saw David, Erwin and Philip throwing stones at the house of his neighbor Crisanto Briones. Briones got mad and scolded the three men, "Why are you hitting my house? Why don't you hit the house of your enemy, mga tarantado kayo!" 13 David, Erwin and Philip then aimed their stones at the petitioners' house. Balbino heard David calling out to Joey, "Joey, kung tunay kang lalaki lumabas ka diyan sa kalsada at dito tayo magpatayan," 14 but no one came out of Rodolfo's house. The stoning lasted for about thirty (30) minutes. Afterwards, Balbino saw David, Erwin and Philip destroy Rodolfo's gate and pull the gate towards the road. He heard David say to his companions, "koberan ninyo ako at papasok kami." 15 David, Erwin and Philip entered the petitioners' compound and damaged Rodolfo's tricycle with stones and their ''panabas." Also, he heard Rodolfo say to David in Filipino that they could just talk about their problems with him the following day. But David approached Rodolfo and hacked him with a ''panabas." Rodolfo parried the blow with the back of his hand, and David and Rodolfo struggled for the possession of the ''panabas." Balbino also saw Erwin hit Rodolfo on the face with a stone and Joey was hit on his right foot, causing Rodolfo and Joey to retreat to the "silung" of their house from where Rodolfo got "something shiny," and with it stabbed David and Erwin. He saw the two brothers fall to the ground. Version of the Prosecution As its rebuttal witness, the prosecution presented the sole testimony of Erwin who survived the hacking. Erwin narrated that, at around 10:00 to 11 :00 p.m., on November 8, 2000, he, his brother David and Philip went to a birthday party and ed in front of the petitioners' compound. He was walking twenty (20) meters ahead of his companions when, suddenly, Philip ran up to him saying that David was being stabbed by Joey with a bolo. While approaching the scene of the stabbing, which was three (3) meters away from where his brother David was, Erwin was met by Rodolfo who then hacked him, hitting his arm and back. Thereafter, Rodolfo and Joey dragged Erwin inside the petitioners' compound and kept on hacking him. He was hacked and stabbed thirteen (13) times. He became weak and ultimately fell to the ground. Erwin denied that he and David threw stones at the petitioners' house and damaged Rodolfo's tricycle.1âwphi1 They did not likewise destroy the petitioners' gate, which was only damaged when his brother David clung on to it while he was being pulled by Rodolfo and Erwin into their compound. While they were being hacked and stabbed by Rodolfo and Erwin, stones actually rained on them and people outside the petitioners' gate were saying, "Do not kill the brothers. Allow them to come out."16 After the incident, Erwin and David, both unconscious, were brought to the hospital. David died in the hospital while being treated for his wounds. The RTC's Ruling Page 25 of 141

In a decision dated April 16, 2004, the RTC gave credence to the prosecution's version of the incident and found the petitioners guilty beyond reasonable doubt of the crimes of frustrated homicide and homicide. It disbelieved the defense's version of the events due to material inconsistencies in the testimonies of the defense witnesses. It denied the petitioners' claim of self-defense for lack of clear, convincing and satisfactory ing evidence. The RTC explained in its decision that "[w]hen an accused invokes the justifying circumstance of self-defense, he loses the constitutional presumption of innocence and assumes the burden of proving, with clear and convincing evidence, the justification for his act"; 17 that self-defense is an affirmative allegation which must be proven with certainty by sufficient, satisfactory and convincing evidence that excludes any vestige of criminal aggression on the part of the person invoking it.18 The RTC held that the petitioners miserably failed to prove that there was unlawful aggression on the part of the victims, Erwin and David. Accordingly, the RTC disposed of the case as follows: WHEREFORE, finding the accused Rodolfo Guevarra and Joey Guevarra guilty beyond reasonable doubt of the crimes for which they are charged, and absent any mitigating or aggravating circumstance/s that attended the commission of the crimes, the Court hereby sentences each of the accused to suffer -In Criminal Case No. Br. 20-1560 for Frustrated Homicide - an indeterminate penalty ranging from Three (3) years and one day of prision correccional as minimum to Nine (9) years of prision mayor as maximum and to indemnify the victim Erwin Ordonez moral damages in the amount of Twenty Thousand (P20,000.00) Pesos, without any subsidiary imprisonment in case of insolvency. Cost against the accused. In Criminal Case No. Br. 20-1561 for Homicide - an indeterminate penalty ranging from Eight (8) years and one day of prision mayor as minimum to Fifteen (15) years of Reclusion Temporal as maximum and to indemnify the heirs of the deceased David Ordonez Sixty Thousand (P60,000.00) Pesos plus Thirty Thousand (P30,000.00) Pesos as moral damages without subsidiary imprisonment in case of insolvency. Costs against the accused. The bail bonds of the accused are CANCELLED. 19 The CA's Ruling On appeal, the CA affirmed the RTC's judgment and convicted the petitioners of the crimes charged. As the RTC did, the CA found that Erwin and David committed no unlawful aggression sufficient to provoke the actions of the petitioners; that "aggression, to be unlawful, must be actual and imminent, such that there is a real threat of bodily harm to the person resorting to self-defense or to others whom that person is seeking to defend." 20 Even assuming the truth of the petitioners' claims that David challenged Joey to a fight and threatened to kill Rodolfo on the night of November 8, 2000, the CA held that these acts do not constitute unlawful aggression to justify the petitioners' actions as no real or actual danger existed as the petitioners were then inside the safety of their own home. The CA further held that the petitioners' plea of self-defense was belied by the nature and number of wounds inflicted on Erwin, who sustained thirteen (13) stab wounds on his arm and Page 26 of 141

back, and David, who suffered around ten (10) stab wounds on his back and stomach causing his death. These wounds logically indicated that the assault was no longer an act of self-defense but a determined homicidal aggression on the part of the petitioners. 21 The CA, however, found error in the amounts of civil indemnity and moral damages awarded by the RTC. Thus, the CA modified the RTC's decision in this wise: WHEREFORE, the appealed Decision is AFFIRMED with MODIFICATION. In Crim. Case No. Br. 201561, appellants RODOLFO GUEVARRA and JOEY GUEVARRA are each ordered to pay the heirs of the deceased David Ordonez the sum of Fifty Thousand Pesos (P.50,000.00) as civil indemnity and another Fifty Thousand Pesos (P50,000.00) as moral damages.22 The Petition In the present petition, the petitioners raise the following issues: A. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN FAILING TO APPRECIATE THE PRESENCE OF THE JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE DESPITE CLEAR AND CONVINCING EVIDENCE SHOWING THE ELEMENTS OF SELF-DEFENSE. B. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN GIVING FULL CREDENCE TO THE TESTIMONY OF THE LONE WITNESS OF THE PROSECUTION. C. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT ACQUITTING PETITIONER JOEY GUEVARRA WHO HAS NO PARTICIPATION IN THE SAID INCIDENT. 23 Our Ruling We deny the present petition as we find no reversible error in the CA decision of October 24, 2005. At the outset, we emphasize that the Court's review of the present case is via a petition for review under Rule 45, which generally bars any question pertaining to the factual issues raised. The well-settled rule is that questions of fact are not reviewable in petitions for review under Rule 45, subject only to certain exceptions, among them, the lack of sufficient in evidence of the trial court's judgment or the appellate court's misapprehension of the adduced facts. 24 The petitioners fail to convince us that we should review the findings of fact in this case. Factual findings of the RTC, when affirmed by the CA, are entitled to great weight and respect by this Court and are deemed final and conclusive when ed by the evidence on record. 25 We find that both the RTC and the CA fully considered the evidence presented by the prosecution and the Page 27 of 141

defense, and they have adequately explained the legal and evidentiary reasons in concluding that the petitioners are guilty of the crimes of frustrated homicide and homicide. In the absence of any showing that the trial and appellate courts overlooked certain facts and circumstances that could substantially affect the outcome of the present case, we uphold the rulings of the RTC and the CA which found the elements of these crimes fully established during the trial. The crime of frustrated homicide is committed when: (1) an "accused intended to kill his victim, as manifested by his use of a deadly weapon in his assault; (2) the victim sustained fatal or mortal wound/s but did not die because of timely medical assistance; and (3) none of the qualifying circumstance for murder under Article 248 of the Revised Penal Code is present." 26 On the other hand, the crime of homicide is committed when: (1) a person is killed; (2) the accused killed that person without any justifying circumstance; (3) the accused had the intention to kill, which is presumed; and ( 4) the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide. 27 The petitioners' intent to kill was clearly established by the nature and number of wounds sustained by their victims. Evidence to prove intent to kill in crimes against persons may consist, among other things, of the means used by the malefactors; the conduct of the malefactors before, at the time of, or immediately after the killing of the victim; and the nature, location and number of wounds sustained by the victim. 28 The CA aptly observed that the ten (10) hack/stab wounds David suffered and which eventually caused his death, and the thirteen (13) hack/stab wounds Erwin sustained, confirmed the prosecution's theory that the petitioners purposely and vigorously attacked David and Erwin.29 In fact, the petitioners itted at the pre-trial that "the wounds inflicted on the victim Erwin Ordonez would have caused his death were it not for immediate medical attendance." 30 By invoking self-defense, the petitioners, in effect, itted to the commission of the acts for which they were charged, albeit under circumstances that, if proven, would have exculpated them. With this ission, the burden of proof shifted to the petitioners to show that the killing and frustrated killing of David and Erwin, respectively, were attended by the following circumstances: (1) unlawful aggression on the part of the victims; (2) reasonable necessity of the means employed to prevent or repel such aggression; and (3) lack of sufficient provocation on the part of the persons resorting to self-defense. 31 Of all the burdens the petitioners carried, the most important of all is the element of unlawful aggression. Unlawful aggression is an actual physical assault, or at least a threat to inflict real imminent injury, upon a person. 32 The element of unlawful aggression must be proven first in order for self-defense to be successfully pleaded. There can be no self-defense, whether complete or incomplete, unless the victim had committed unlawful aggression against the person who resorted to self-defense.33 As the RTC and the CA did, we find the absence of the element of unlawful aggression on the part of the victims. As the prosecution fully established, Erwin and David were just ing by the Page 28 of 141

petitioners' compound on the night of November 8, 2000 when David was suddenly attacked by Joey while Erwin was attacked by Rodolfo. The attack actually took place outside, not inside, the petitioners' compound, as evidenced by the way the petitioners' gate was destroyed. The manner by which the wooden gate post was broken coincided with Erwin's testimony that his brother David, who was then clinging onto the gate, was dragged into the petitioners' compound. These circumstances, coupled with the nature and number of wounds sustained by the victims, clearly show that the petitioners did not act in self-defense in killing David and wounding Erwin. The petitioners were, in fact, the real aggressors. As to the penalties and damages awarded We affirm the penalties imposed upon the petitioners, as they are well within the ranges provided by law, but modify the damages awarded by the CA. In addition to the P50,000.00 civil indemnity and P50,000.00 moral damages awarded by the CA, we awardP25,000.00 to each of the victims as temperate damages, in lieu of the actual damages they sustained by reason of the crimes. Article 2224 of the Civil Code states that temperate or moderate damages may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot be proved with certainty. Also, we impose on all the monetary awards for damages interest at the legal rate of six percent ( 6%) per annum from date of finality of the decision until fully paid. 34 WHEREFORE, the petition is DENIED. The decision dated October 24, 2005 of the Court of Appeals is hereby AFFIRMED with MODIFICATION in that the petitioners are also ordered to pay Erwin Ordonez and the heirs of David Ordonez the amount of P25,000.00 as temperate damages. The petitioners shall pay interest at the rate of six percent (6%) per annum on the civil indemnity, moral and temperate damages from the finality of this decision until fully paid. 4. PEOPLE vs OBORDO [G.R. No. 139528. May 9, 2002] KAPUNAN, J.: Before the Court is an appeal from the Decision of the Regional Trial Court of Sindangan, Zamboanga del Norte, Branch 11, dated July 2, 1999 in Criminal Case No. 7659 finding accusedappellant Norman Obordo y Bulalakaw guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty of reclusion perpetua. On January 28, 1997, accused-appellant was charged with murder in an information which alleged: That at dawn, on or about January 23, 1997 in Barangay Antipolo, City of Dapitan, within the jurisdiction of this Honorable Court, the above-named accused, armed with a hunting knife, with intent to kill by means of treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and stab with the use of said hunting knife one, HOMER JAMAROLIN, thereby resulting to his instantaneous death.

Page 29 of 141

That as a result of the criminal acts of the accused heirs of the deceased suffered the following damages to wit: 1. Moral damages - - - - P 30,000.00 2. Exemplary damages - - 30,000.00 3. Death Indemnity - - - - 40,000.00 Total - - - P100,000.00 CONTRARY TO LAW. (Viol. of Art. 248 of the Revised Penal Code, amended by R.A. 7659) [1] Upon arraignment, accused-appellant entered a plea of not guilty. Thereafter, trial ensued. The prosecution presented as its witnesses Edgar Bendillo, Rolando Jamarolin, Dr. Bernardo Palma and Renelio Jamarolin. Edgar Bendillo testified that at about 7:30 in the evening of January 22, 1997, he, the victim Homer Jamarolin and their companions Roy Adrias, Rene Adrias, and Inting Jamlod went to Antipolo, Dapitan City to attend a benefit dance. On their way to the dance, they stopped by the store of Mimie Valladares and engaged in a drinking spree. [2] At about 1:00 a.m. of the following day, January 23, 1997, Rolando Jamarolin, Homers brother, arrived at Valladares store and asked the victim for some money to buy a bottle of softdrinks. Rolando persuaded Homer and his companions to proceed to the benefit dance and the group acceded.[3] While Homer and his companions were on their way to the benefit dance, they met the group of Ronald Alap-ap, which included accused-appellant Norman Obordo. [4] When Bendillo saw Alap-ap, with whom he previously had a fist fight, he approached Alap-ap and boxed the latter. Alap-ap staggered from the blow then pulled out a hunting knife from his waist, prompting Bendillo to retreat towards Homer and the rest of their group. [5] In the meantime, accused-appellant called Homer, who was then holding a lighted cigarette, and asked him if he could light accused-appellants cigarette. Homer obliged and extended his lighted cigarette to accused-appellant.[6] At this time, Bendillo was walking back towards his companions and was about one fathom[7] A fathom is defined as a full stretch of the arms in a straight line; also, grasp, reach, or a unit of length equal to 6 feet based on the distance between fingertips of a mans outstretched arms and used especially for measuring the depth of water (Websters Third New International Dictionary, p. 828 [1976]).7 away from Homer when he saw accused-appellant approach the latter to reach for the lighted cigarette. Accused-appellants right hand was at the right side of his hip as if concealing something. Accused-appellant took Homers cigarette with his left hand and with his right hand suddenly stabbed Homer on the left side of the abdomen near the navel with what seemed to be a small bolo. After he was stabbed, Homer retaliated by punching accused-appellant in the face. Accused-appellant fell to the ground, then got up on his feet and ran away. Bendillo said that although Homer and accused-appellant were facing each other then, Homer had no chance to defend himself because he was busy lighting accused-appellants cigarette. Bendillo further stated that he was able to see the stabbing because the place was well-lighted because there was a fluorescent lamp from the electric post and the moon was shining brightly.[8] Rolando Jamarolin (Rolando), the brother of the victim, corroborated Bendillos statements. Rolando testified he left the house on January 22, 1997 at around 8:00 p.m. to attend a benefit dance in a disco house in Antipolo, Dapitan City. At about 1:00 a.m. of January 23, 1997, he went outside the disco house to look for his brother Homer. Rolando eventually found Homer with Bendillo, Rene Adrias and Roy Adrias at Valladeres store. He asked Homer for money to buy a bottle of cola. After finishing his drink, Rolando suggested to Homer and his Page 30 of 141

group that they proceed to the benefit dance before going home. However, they were not able to attend the dance because they met the group of accused-appellant, Alap-ap and their other companions along the way.[9] Rolando explained that when Bendillo saw Alap-ap, Bendillo approached the latter and boxed him. Rolando heard accused-appellant call Homer and say Pagdakota ko, Bay. Accused-appellant was asking Homer to light his cigarette. Rolando then saw Homer go near accused-appellant to light the unlighted cigarette with Homers cigarette which was already lighted. While Homer was lighting accused-appellants cigarette, the latter suddenly thrust his hunting knife towards the left side of Homers abdomen. Homer was unable to prevent himself from being stabbed because the act took place all of a sudden.[10] After Homer was stabbed, he retaliated by punching accused-appellant. The latter fell out but he stood up at once, and then he and his companions ran away from the scene.Thereafter, Rolando Jamarolin and their other companions rushed Homer to the hospital, but the victim died before they could reach the same.[11] Rolando was able to ascertain that it was accused-appellant who stabbed his brother because the place was illuminated by a fluorescent bulb. [12] Dr. Bernardo Palma, the City Health Officer who examined Homers body at about 9:10 a.m. on January 23, 1997, found that the victim sustained a wound on the left side of the navel and that his stomach and liver were also injured. [13] His postmortem report indicated the following: FINDINGS: STABBED WOUND 1 inch left hypochondriac region with injuries to stomach liver. CAUSE OF DEATH: Acute anemia secondary to stabbed wound with injuries to stomach and liver. [14] Dr. Palma opined that the a sharp-edged pointed blade instrument which could be a small bolo or a hunting knife must have been used by the assailant in stabbing the victim. [15] The prosecutions last witness was the victims father, Renelio Jamarolin (Renelio). He testified that at the time of his death, Homer was physically fit and gainfully employed by a certain Atty. Cainta as a fishpond watcher. Homer was earning Two Thousand Pesos (P2,000.00) a month, excluding his commission from the bangus and the lukon. Renelio said that he suffered great pain and anguish as a result of Homers death. He claimed Thirty Thousand Pesos (P30,000.00) as moral damages, Thirty Thousand Pesos (P30,000.00) as exemplary damages and Forty Thousand Pesos (P40,000.00) as indemnity for his sons death. [16] The defense presented the testimonies of Vidal Calalang and the accused-appellant. Vidal Calalang, a Barangay Tanod of Antipolo, Dapitan City at the time of Homers killing, testified that on January 23, 1997 from about 1:00 to 2:00 a.m., he was patrolling the area near the disco where the benefit dance was being held. While patrolling near the bridge, he saw Homer punch accused-appellant. Accused-appellant thereafter stabbed Homer and ran away. Calalang said that he saw what happened because the incident occurred in a well-lighted place. He stated further that he only saw Homer and the accused-appellant and that he did not see their companions.[17] Accused-appellant itted before the trial knife, but interposed self-defense. He stated that Dapitan City on January 22, 1997. He and his Walter Alajos and Ricky Esmade left the affair at

court that he stabbed Homer with a hunting he attended the benefit dance held in Antipolo, companions Ronald Alap-ap, Richard Alap-ap, about 2:00 a.m. the following day, January 23, Page 31 of 141

1997. On their way home to Tamion, Dapitan City, Ronald Alap-ap was boxed by Edgar Bendillo. Accused-appellant claimed that he was subsequently punched by Homer and he fell to the ground. He saw Homer trying to get something from his waist, so accused-appellant pulled out his hunting knife and stabbed Homer before the latter could harm him further. [18] On July 2, 1999, the trial court promulgated its Decision finding accused-appellant guilty beyond reasonable doubt for having killed Homer. The dispositive portion thereof states: WHEREFORE, the Court finds the accused NORMAN OBORDO, GUILTY beyond reasonable doubt of the crime of MURDER as defined and penalized under the Revised Penal Code, as amended under Section 6 of Republic Act No. 7659, and is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs of the deceased Homer Jamarolin in the amount of P50,000.00 and to pay P15,000.00 by way of moral damages. COST DE OFICIO. SO ORDERED.[19] Accused-appellant filed the instant appeal, asg the following errors: I THE COURT A QUO ERRED IN NOT CONSIDERING SELF-DEFENSE IN THE CASE AT BAR. II THE COURT A QUO ERRED IN APPRECIATING TREACHERY IN THE CASE AT BAR. [20] Accused-appellant contends that the trial court erred in disregarding his claim of self-defense on the ground that he was not able to establish the existence of all the elements thereof. He insists that it was the victims group which started the trouble, as in fact Edgar Bendillo, a friend of Homer, punched Ronald Alap-ap who was with accused-appellant on the day of the killing. Accused-appellant maintains that he was only defending himself when he stabbed Homer. He reiterated witness Vicente Calalangs statement that Homer punched him before he stabbed the victim. This he says was clearly an act of unlawful aggression on Homers part. Moreover, he asserts that the means by which he defended himself was reasonable since Homer was about to get something from his waist and accused-appellant believed at that time that the victim was about to pull out a weapon and use it to harm him. [21] Accused-appellant argues further that the trial court erred in holding that Homers killing was attended by treachery, since it was Homers group which initiated the attack on accusedappellants group. This shows that Homers group was really looking for and expecting trouble. Hence, it can not be said that the victim was not expecting an attack from accusedappellants group.[22] The Court is not convinced by accused-appellants arguments. When an accused invokes self-defense, the burden of evidence is shifted to him to prove by clear and convincing evidence the elements of his defense. [23]3 In effect, he its that he committed the killing and the burden is shifted to him to prove that the killing was justified. He must therefore establish the presence of the following requisites of self-defense: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel such unlawful aggression; and (3) lack of sufficient provocation on the part of the person defending himself.[24] Page 32 of 141

Accused-appellant failed to prove by clear and convincing evidence that there was unlawful aggression on the part of the victim, a condition sine qua non for the successful invocation of self-defense.[25] He failed to show that his life was threatened and that the threat was imminent and actual, not imaginary.[26] It was established during trial that prior to the stabbing, the victim merely extended his lighted cigarette to accused-appellant. This cannot by any stretch of imagination be construed as an unlawful aggression on the part of Homer. Accused-appellants claim that Homer punched him first before he stabbed the victim was not given credence by the trial court, which found the testimonies of Bendillo and Rolando Jamarolin to be more credible. Bendillo narrated in detail the incidents that led to the killing of Homer in the early morning of January 23, 1997 as follows: xxx Q: Then what did you see when you see when you were there already at the place where Homer Jamarolin was situated? [A]: I immediately saw Homer Jamarolin at that time that Norman Obordo was about to light a cigarette and I saw him stabbed Homer Jamarolin. Q: How far were you when you saw Norman Obordo stabbed Homer Jamarolin? A: One (1) fathom. Q: Did you see what weapon did Norman Obordo use in stabbing Homer Jamarolin? A: Yes, sir. Q: What was that? A: A small bolo. Q: Could you you show to the Honorable Court by way of measuring with your hand what is the height of that bolo? INTERPRETER: Witness demonstrated the length of the bolo which is approximately 1 foot. PROSECUTOR LIGORIO: Q: Was Homer Jamarolin hit when he was stabbed by Norman Obordo? A: Yes sir, he was hit. Q: By the way, when you saw Norma[n] Obordo stabbed Homer Jamarolin where, was he situated at that time. Was he at the side or in front of Homer Jamarolin or where? A: He was facing Jomer (sic). Q: But not so frontal, I mean it was somewhat side view on the part of Homer Jamarolin? A: Yes sir. Q: And did you see what part of the body was Homer Jamarolin hit when he was stabbed? A: I saw. Q: Where? Can you point what part of the body? A: At the left rib at the side. Q: Are you sure that Norman Obordo stabbed Homer Jamarolin at that time? Page 33 of 141

A: Yes sir. Q: It was night time, how could you tell us that you saw Norman Obordo stabbed Homer Jamarolin? A: Because there was a light nearby. Q: What kind of lamp? A: Fluorescent lamp. Q: Electric lamp? A: Yes sir. Q: When Homer Jamarolin was hit with that instrument a small bolo directed to him by Norman Obordo, what happened to Homer Jamarolin? A: He retaliated by boxing? Q: You mean he was able to box Norman Obordo despite the fact that he was hit? A: Yes sir. Q: Was Norman Obordo hit? A: Yes, sir. Q: Where? A: In his face. Q: And what happened to Norman Obordo when he was hit? A: He fall (sic) down. Q: And what did he do when he fall (sic) down? A: He ran away. Q: By the way, when he stabbed Homer Jamarolin and according to you you saw that he was hit with a small bolo, was he able to pull back the bolo or the bolo was (sic) just remain in the body of Homer Jamarolin? A: The bolo was being pulled. Q: You said that after he was hit with the fist of Homer Jamarolin he fall (sic) down and you said further that after he stood up and ran away, did Norman Obordo bring the bolo? A: He was bringing the bolo. xxx[27] His testimony during cross-examination, quoted hereunder, shows the consistency of his statements regarding the pertinent circumstances of the stabbing incident: Q: And after that boxing incident, you immediately go (sic) home together with your companions? A: After I boxed Alap-ap, I went back to the place of Homer Jamarolin. Q: And after that you went home together with your companions? A: When I went back I saw Norman Obordo called upon to lit his cigarette. Page 34 of 141

Q: Who called Homer Jamarolin? A: Norman Obordo. Q: How was Homer Jamarolin being called by Norman Obordo? A: Norman Obordo make (sic) a sign of calling to someone to go near him because he wanted to light his cigarette. Q: So, it was Homer Jamarolin who approached Norman Obordo? A: Yes, Sir because there was a sign making a signal of calling Homer Jamarolin because he wanted to lit his cigarette. Q: Is it not a fact that you testified during the last meeting that it was Norman Obordo who approached Homer Jamarolin? A: No, Sir. xxx Q: Since you said that it was Homer Jamarolin who approached Norman Obordo, did you not try to advise him not to approach Norman Obordo considering that Norman Obordo is the companion of Rolando Alap-ap of whom you have boxed just a moment ago? A: No Sir, because I know for a fact that the purpose of approaching is to light the cigarette. Q: How far [was] your position from Norman Obordo? A: About one fathom. Q: Was he together with some other companions, this Norman Obordo? A: He was at a distance with the group. Q: Is it not a fact that this Norman Obordo was being boxed by Homer Jamarolin right after you boxed Rolando Alap-ap? A: That is not true. xxx COURT: (Clarificatory questions) Q: In other words you were present when Norman Obordo stabbed to death Homer Jamarolin? A: Yes Sir. I was nearby. Q: So, you were able to positively identify the person who stabbed Homer Jamarolin? A: Yes, Sir. Q: Because at that time it was a moon light (sic) and the place where the stabbing incident took place was well illuminated from the electric light from the dancing, am I right? A: Yes, Your Honor. Q: And considering that Homer Jamarolin is your companion, you are very aware that at that time during the stabbing incident he was unarmed? A: Yes, Sir. Page 35 of 141

Q: As a result of the stabbing incident Homer Jamarolin died? A: Yes, Your Honor. xxx[28] The trial court also gave credence to the testimony of Rolando Jamarolin, which corroborated Bendillos statements. Rolando testified on direct examination in this manner: xxx Q: Do you mean to say after Edgar Bendillo boxed without any reason Ronald Alap-ap, this Norman Obordo called your elder brother Homer Jamarolin? A: Yes, Sir. Q: You witnessed then you heard Norman Obordo called your brother Homer Jamarolin? A: Yes, Sir. Q: How far were you from your brother Homer and Norman Obordo that time? A: Only 1 fathom. Q: And at that distance of one fathom you heard what then the words uttered by Norman Obordo which called the attention of your brother Homer? A: Yes, Sir. Q: Will you please narrate or give the exact words uttered by Norman Obordo which called the attention of your brother Homer Jamarolin? A: Norman Obordo stated that Bay let me light my cigarette. Q: You mean to say your brother is smoking? A: Yes, Sir. Q: Is he at that time bringing a cigarette lighter or match? A: Cigarette. Q: So, at that time your brother Homer Jamarolin was smoking? A: Yes, Sir. Q: How do you know that he is smoking? A: Because we were together in going to the disco place. Q: At that time he is holding [a] cigarette stick or placed it between his lip? A: In his hand. Q: What is the distance of Homer Jamarolin to Norman Obordo at that time? A: Very near. INTERPRETER: The witness demonstrated the distance from the witness stand up to the Interpreter of this Court approximately a meter. Q: When Norman Obordo told your brother pagdakota ko Bay, what was the reaction of your brother? A: He handed his cigarette to him. Page 36 of 141

Q: In that position he tried to extend his hand with lighted cigarette, what have you noticed the action of Norman Obordo? A: He received the cigarette and simultaneously stabbed my brother. Q: You mean to say when your brother extended his lighted cigarette to Norman Obordo, Norman Obordo reached for the cigarette? Was he able to receive the cigarette of your brother to light his cigarette? A: He was able to reach the cigarette. Q: Was Norman Obordo then able to light his cigarette? A: He was able to light his cigarette but simultaneously stabbed my brother. Q: Do you mean to say, what hand of Norman Obordo was holding the cigarette? A: Left hand. Q: How about the right hand of Norman Obordo at that time? A: His right hand was at his side. Q: What have you noticed when his right hand was placed at the hip? A: I do not know what he was holding because he is concealing. Q: Do you mean to say that you noticed the right hand of Obordo was concealing something at that time? A: I saw he was hiding his hand. Q: While in the act of lighting cigarette, what have you notice[d]? A: I saw that the hunting knife was already embedded at the side of my brother. Q: You mean to say at that time your brother was not on guard of what will happen to him? A: Yes, Your Honor. Q: So, in a lightning speed you noticed that something stocked (sic) to the left portion of the abdomen of your brother? A: Thats the time when the hunting knife was already embedded at the left side. Q: On that action, there was no time your brother could defend himself? A: Yes, Your Honor he has no time to defend himself at that time because he was handling his cigarette. Q: When you noticed that something stock (sic) at the vital part of the body of your brother, what happened next? A: After that Norman Obordo pulled his hunting knife and my brother was able to box and hit Norman Obordo and Norman Obordo fell down and also my brother fell down. Q: When both of them feel (sic) down, what happen (sic) next? A: Norman Obordo immediately ran away and I extended help to my brother. xxx

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Q: And as you said a while ago in spite of the fact that it happened about dawn of January 23, 1997 you were able to positively identify Norman Obordo as the person who stabbed your brother because as you said there was light, am I right? A: Yes, Sir. Q: The place was illuminated by moon light night and electric bulb? A: Moon and electric light. xxx[29] Rolandos narration of the events surrounding the killing of Homer on cross-examination affirms his earlier testimony: Q: After Edgar Bendillo boxed Ronald Alap-ap, what happened next? A: Homer was called by Norman Obordo. Q: Aside from Norman Obordo and Ronald Alap-ap, who are the other companions of Ronald Alap-ap and Norman Obordo if you know? A: I do not know the identity of the other companions of Norman Obordo because the place is not very clear to me. Q: In other words you could not see or identify the faces of the companions of Norman Obordo? A: I can identify. Q: You said that after boxing, after Edgar Bendillo boxed Ronald Alap-ap your brother approached Norman Obordo, is that correct? A: It was Norman Obordo who called him. Q: Why? What was the purpose of Norman Obordo in calling your brother? A: For the purpose of lighting his cigarette. Q: So in other words your brother is smoking? A: Yes, Sir. While Norman Obordo was holding/carrying cigarette. Q: And according to your testimony in the direct examination when your brother Homer Jamarolin approached Norman Obordo, Norman Obordo allegedly stabbed your brother, is that correct? A: At that time that he handed his cigarette to Norman Obordo he was was immediately stabbed. Q: How far were you from them? A: About 1 fathom. Q: Aside from you, who was the other person near to the place of them? A: Edgar Bendillo. xxx Q: When you said that Norman Obordo allegedly stabbed your brother what happened to your brother? A: He felt pain. Page 38 of 141

Q: But according to you in your direct testimony Mr. Witness, your brother was able to box Norman Obordo? A: Yes, Sir. Q: What about you, what did you do at that time? A: I aided my brother so that he will be brought to the hospital. Q: How about your other companions, what did they do? A: We were helping one another in order that he will be brought to the hospital. Q: How about the companions of Norman Obordo, what did they do? A: They ran away. xxx COURT: (Clarificatory questions) Q: So, during the stabbing incident you were actually present, am I right? A: Yes, Your Honor. Q: The stabbing incident occurred on January 23, 1997 at about 1:00 oclock dawn, am I right? A: Yes, Your Honor. Q: Considering that it was 1:00 oclock dawn, may I know whether the place where the incident happened was well lighted? A: It was lighted. Q: Why can you say that it was lighted, what kind of light which illuminated the place? A: Fluorescent. Q: So there was a fluorescent lamp? A: Yes, Your Honor. Q: Coming from what place? A: At the back where we were standing. xxx Q: So, at the time of the stabbing incident, you were actually present? A: Yes, Your Honor. Q: Were you able to identify positively the person of Norman Obordo who stab your brother Homer Jamarolin? A: Yes, Your Honor. Q: Please look around. Is Norman Obordo present in this Court? A: Yes, Your Honor. Q: Will you please come down and touch the shoulder of the person of Norman Obordo? INTERPRETER:

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As approached and pointed to by the witness, this person when ask[ed] his name answered that he is Norman Obordo. COURT: Q: You want to impress this Court that before the stabbing incident, you were very near to Norman Obordo, am I right? A: At a distance of one fathom. Q: What was the relative position of Homer Jamarolin when you said Norman Obordo suddenly thrust his hunting knife considering that they were facing each other? A: He was extending his hand with a cigarette on it. Q: In other words when Norman Obordo called your brother Homer Jamarolin, your brother went nearer to Norman Obordo. He extended his hand with cigarette? A: He extended his hand with cigarette. Q: To light the cigarette of Norman Obordo? A: Yes, Sir. Q: While in that position extending his hand holding a lighted cigarette in order that Norman Obordo would light the cigarette, you mean to say without any warning this Norman Obordo thrust his hunting knife to Homer Jamarolin? A: He was unaware. Q: At that time may I know whether Homer Jamarolin was armed with a deadly weapon? A: No, Sir. xxx[30] After a circumspect examination of the records, the Court finds no reason to disturb the lower courts finding and to depart from the rule that factual findings of the trial court regarding the credibility of witnesses considering that it is in a better position to determine the same, having heard the witnesses themselves and having observed their deportment and manner of testifying during trial.[31] The incident between Bendillo and Alap-ap cannot be considered as an unlawful aggression on the part of the victim since that incident was apparently just between the two of them and did not involve either Homer or accused-appellant. In fact, none of Bendillos friends or Alap-aps companions that early morning ed in the fight involving the two.Hence, accused-appellants attempts at justifying his act of stabbing Homer as having been made in defense of an attack from the victims group must fail. Even assuming arguendo that there was unlawful aggression on the part of the victim, accused-appellant likewise failed to prove that the means he employed to repel Homers punch was reasonable. The means employed by the person invoking self-defense contemplates a rational equivalence between the means of attack and the defense. [32] Accused-appellant claimed that the victim punched him and was trying to get something from his waist, so he (accusedappellant) stabbed the victim with his hunting knife. [33] His act of immediately stabbing Homer and inflicting a wound on a vital part of the victims body was unreasonable and unnecessary considering that, as alleged by accused-appellant himself, the victim used his bare fist in throwing a punch at him. There was thus no error on the part of the trial court in rejecting accused-appellants claim of self-defense. Page 40 of 141

The trial court was also correct in ruling that the killing of Homer was attended by the qualifying circumstance of treachery. Treachery is present when the offender employs means, methods or forms in the execution of an offense which tend directly and specially to insure its execution without risk to himself arising from the challenge that the offended party might make. [34] It has two elements, to wit: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2) the deliberate or conscious adoption of the means of execution.[35] The essence of treachery is the sudden and unexpected attack by the aggressor against the unsuspecting victim without the slightest provocation on the latters part, depriving the latter of any real chance of defending himself. [36] The Court agrees with the finding of the lower court that xxx [Homer] Jamarolin was completely unaware of the murderous design of accused Norman Obordo. Jamarolin was in the act of lighting the cigarette of Norman Obordo, when he was suddenly, without warning stabbed by Norman Obordo. While it may be true that a sudden and unexpected attack is not always treacherous, in the case at bar, however, there was treachery because this type of assault was deliberately adopted by Norman Obordo. Jamarolin was afforded no opportunity to put up any defense whatsoever, while Obordo was exposed to no risk at all, and that form of attack, evidently, was consciously adopted by him. xxx [37] That the killing of Homer by accused-appellant was attended by treachery is not negated by the fact that they were face-to-face when accused stabbed the victim, for there can be treachery even if the attack is frontal, so long as the same was sudden and unexpected, leaving the victim without any opportunity to defend himself or to retaliate. [38] In view of the existence of the qualifying circumstance of treachery in the case at bar, accused-appellant was correctly convicted of the crime of murder, as defined under Article 248 of the Revised Penal Code for the killing of Homer Jamarolin. [39] There being no aggravating circumstance, the imposition of the penalty of reclusion perpetua is proper. However, it is necessary to increase the award of damages granted by the trial court to the heirs of the victim. Although the trial court was correct in granting civil indemnity in the amount of Fifty Thousand Pesos (P50,000.00), its award of moral damages in the amount of Fifteen Thousand Pesos (P15,000.00) to compensate the victims heirs for injuries to their feelings must be increased to Fifty Thousand Pesos (P50,000.00) in accordance with prevailing jurisprudence. [40] WHEREFORE, the Decision of the Regional Trial Court of Sindangan, Zamboanga del Norte, Branch 11 in Criminal Case No. 7659, finding accused-appellant Norman Obordo y Bulalakaw guilty of murder and impoon him the penalty of reclusion perpetua, is AFFIRMED with the MODIFICATION that accused-appellant is ordered to pay the heirs of Homer Jamarolin the amounts of Fifty Thousand Pesos (P50,000.00) as civil indemnity for the death of Homer Jamarolin and Fifty Thousand Pesos (P50,000.00) as moral damages.

5. PEOPLE v. SEVILLANO (G.R. No. 200800, February 9, 2015) PEREZ, J.: For this Court's resolution is the appeal filed by Oscar Sevillano y Retanal (appellant) assailing the 17 August 2011 Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 04257 which affirmed the Regional Trial Court's (RTC) 4 December 2009 Judgment 2 finding the appellant guilty beyond reasonable doubt of the crime of murder. Factual Antecedents Page 41 of 141

Appellant was charged before the RTC, Branch 1 7, Manila with murder in an information that reads: That on or about March 11, 2007, in the City of Manila, Philippines, the said accused, with intent to kill and with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and use personal violence upon the person of PABLO MADDAUIN y TAMANG by then and there suddenly and unexpectedly stabbing him several times with a deadly bladed weapon hitting upon the said Pablo T. Maddauin fatal stab wounds which are the direct cause of his death immediately thereafter. 3 During arraignment, appellant, assisted by his counsel, pleaded not guilty to the crime charged. Trial thereafter ensued. Statement of Facts The version of the prosecution was summarized by the CA thus wise: Prosecution witnesses Jose Palavorin and Carmelita Cardona, 67 and 46 years old, respectively, testified that at around 3:00 p.m. of 11 March 2007, they, together with Victim Pablo Maddauin, were seated on a long bench having their usual chit-chat at the vacant lot situated at 4th Street Guadal Canal, St., Sta. Mesa, Manila. Witness Jose was the watchman of this property. While conversing, they saw appellant coming towards their direction. Appellant could not walk straight and appeared to be drunk. Without warning, appellant pulled out a knife from his waist and stabbed the victim on the chest. Jose and Carmelita tried to restrain the appellant from attacking the victim, but Jose experienced leg cramps and lost his hold on appellant. Appellant turned again on the victim and continued to stab him several times more. The victim was heard asking appellant, "Bakit?". Carmelita shouted for help. The victim’s wife came to the scene and embraced appellant as she wrestled for the knife. Thereafter, [the] victim was brought to the University of the East Ramon Magsaysay Memorial Medical center; but unfortunately, he died that same day.4 Appellant, for his part, denied the accusations against him. He interposed self-defense to absolve himself from criminal liability. He averred that on that fateful afternoon, he went to the vacant lot where the victim and his friends usually hang-out to feed his chicken. While thereat, the victim, whom he described to have bloodshot eyes, walk towards him and stepped on his injured foot. While he was on his knees because of the pain, he saw the victim draw a knife. The latter thereafter stabbed at him while uttering: "Ikaw pa, putang ina mo," but missed his target. As he and the victim grappled for the knife, the latter was accidentally stabbed. When he saw blood oozing out of the victim, he became apprehensive of the victim’s relative to such extent that he fled the scene and hid to as far as Bulacan where he was eventually apprehended. Ruling of the RTC In a Judgment5 dated 4 December 2009, the trial court found appellant guilty of murder for the death of Pablo Maddauin (Pablo) and sentenced him to suffer the penalty of reclusion perpetua without eligibility of parole and to pay the heirs of the deceased P50,000.00 as civil indemnity; P50,000.00 as moral damages; and P25,000.00 as exemplary damages. Page 42 of 141

The trial court gave credence to the testimony of the prosecution witnesses that appellant, who appeared to be intoxicated, unexpectedly arrived and stabbed Pablo seven times with a knife. The trial court disregarded appellant’s denial as his testimony was outweighed by the positive statements of the prosecution witnesses. It likewise ruled that treachery attended the commission of the crime, as demonstrated by the fact that the victim was seated and engaged in a conversation when suddenly attacked by the appellant. The trial court ruled that such situation foreclosed any opportunity on the part of the victim to ward off the impending harm. The Ruling of the Court of Appeals In his appeal before the CA, appellant contended that: I. THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE ACCUSED-APPELLANT’S GUILT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYONDREASONABLE DOUBT. II ON THE ASSUMPTION THAT THE ACCUSED-APPELLANT IS LIABLE, THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF MURDER INSTEAD OF HOMICIDE. III THE TRIAL COURT ERRED INNOT FINDING THAT THE ACCUSED-APPELLANT ACTED IN SELFDEFENSE.6 The CA found no reason to disturb the findings of the RTC and upheld its ruling but with modification on the amount of damages awarded. The CA ordered appellant to indemnify the heirs of Pablo in the amounts ofP75,000.00 as civil indemnity; P75,000.00 as moral damages; and P30,000.00 as exemplary damages. The appellate court held that the eyewitness s of prosecution witnesses Jose Palavorin and Carmelita Cardona, and their positive identification of appellant as the perpetrator, aptly complemented by the findings of the postmortem examination, are more plausible than the appellant’s claim of self-defense. 7 The CA likewise sustained the trial court’s findings that the qualifying circumstance of treachery was present in the case. It held that although the attack on the victim was frontal, it was deliberate, sudden and unexpected, affording the hapless, unarmed and unsuspecting victim no opportunity to resist or to defend himself.8 Issues Undaunted, appellant is now before this Court continuing to insist that his guilt was not proven beyond reasonable doubt, and that the lower courts erred in rejecting his claim of self-defense and convicting him of murder instead of homicide. Our Ruling Page 43 of 141

We find the appeal bereft of merit. Well entrenched in our jurisprudence is the rule that findings of the trial court on the credibility of witnesses deserve great weight, as the trial judge is in the best position to assess the credibility of the witnesses, and has the unique opportunity to observe the witness first hand and note his demeanor, conduct and attitude under gruelling examination. 9 Absent any showing that the trial court’s calibration of credibility was flawed, the appellate court is bound by its assessment. In the prosecution of the crime of murder as defined in Article 248 of the Revised Penal Code (RPC), the following elements must be established by the prosecution: (1) that a person was killed; (2) that the accused killed that person; (3) that the killing was attended by treachery; and (4) that the killing is not infanticide or parricide.10 After a careful evaluation of the records, we find that these elements were clearly met. The prosecution witnesses positively identified the appellant as the person who stabbed Pablo several times on the chest which eventually caused the latter’s death. They testified that they even tried to stop appellant’s attack but unfortunately, were unsuccessful. We find no reason to disbelieve the testimonies of these witnesses considering that their narration of facts were straightforward and replete with details that coincide with the medical examination conducted on the body of the victim. We are not persuaded by the appellant’s defense of denial as this cannot prevail over the eyewitnesses’ positive identification of him as the perpetrator of the crime. Denial, like alibi, if not substantiated by clear and convincing evidence, is negative and selfserving evidence undeserving of weight in law. 11 Anent the presence of the element of treachery as a qualifying circumstance, the prosecution was able to establish that the attack on the unsuspecting victim, who was merely seated on a bench and talking with his friends, was very sudden. In fact, the victim was able to utter only "Bakit?". We note that the essence of treachery is the sudden and unexpected attack on the unsuspecting victim by the perpetrator of the crime, depriving the former of any chance to defend himself or to repel the aggression, thus insuring its commission without risk to the aggressor and without any provocation on the part of the victim. By invoking self-defense, appellant in effect, its to having inflicted the stab wounds which killed the victim.1âwphi1The burden was, therefore, shifted on him to prove that the killing was done in self-defense. In Razon v. People, 12this Court held that where an accused its the killing, he assumes the burden to establish his plea by credible, clear and convincing evidence; otherwise, conviction would follow from his ission that he killed the victim. Self-defense cannot be justifiably appreciated when corroborated by independent and competent evidence or when it is extremely doubtful by itself. Under Article 11, paragraph 1 of the RPC, the following elements must be present in order that a plea of self-defense may be validly considered in absolving a person from criminal liability: First. Unlawful Aggression; Second. Reasonable necessity of the means employed to prevent or repel it; Third. Lack of sufficient provocation on the part of the person defending himself. Page 44 of 141

Appellant’s version that it was the victim who was armed with a knife and threatened to stab him was found by the lower court to be untenable. We agree with the lower court’s conclusion. Assuming arguendo that there was indeed unlawful aggression on the part of the victim, the imminence of that danger had already ceased the moment appellant was able to wrestle the knife from him. Thus, there was no longer any unlawful aggression to speak of that would justify the need for him to kill the victim or the former aggressor. This Court has ruled that if an accused still persists in attacking his adversary, he can no longer invoke the justifying circumstance of self-defense.13 The fact that the victim suffered many stab wounds in the body that caused his demise, and the nature and location of the wound also belies and negates the claim of selfdefense. It demonstrates a criminal mind resolved to end the life of the victim. 14 As to the penalties and damages We affirm the penalty imposed upon appellant. Under Article 248 of the RPC, as amended, the crime of murder qualified by treachery is penalized with reclusion perpetua to death. The lower courts were correct in sentencing appellant to suffer the penalty of reclusion perpetua, upon consideration of the absence of any aggravating and mitigating circumstances that attended the commission of the offense. We likewise affirm the CA’s award of P75,000.00 as civil indemnity; P75,000.00 as moral damages; andP30,000.00 as exemplary damages to the victim’s heirs, as these amounts are consistent with current jurisprudence. 15 In addition, we impose on all the monetary awards for damages interest at the legal rate of six percent (6%) per annum from date of finality of the resolution until fully paid.16 WHEREFORE, the petition is DENIED. The Decision dated 17 August 2011 of the Court of Appeals in CA-G.R. CR No. 04257 finding Oscar Sevillano y Retanal guilty beyond reasonable doubt of murder, sentencing him to suffer the penalty of reclusion perpetua without eligibility of parole, and ordering him to indemnify the heirs of Pablo Maddauin in the amounts of P75,000.00 as civil indemnity; P75,000.00 as moral damages; and P30,000.00 as exemplary damages is hereby AFFIRMED with MODIFICATION that he shall pay interest at the rate of six percent ( 6%) per annum on the civil indemnity, moral and exemplary damages awarded from finality of this resolution until fully paid. 6. NACNAC v. PEOPLE ( G.R. No. 191913- March 21, 2012) VELASCO, JR., J.: Every circumstance favoring the accuseds innocence must be duly taken into . The proof against the accused must survive the test of reason. Strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the accused could be laid the responsibility for the offense charged. If the prosecution fails to discharge the burden, then it is not only the accuseds right to be freed; it is, even more, the courts constitutional duty to acquit him.[1]

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This treats of the Motion for Reconsideration of Our Resolution dated August 25, 2010, affirming the July 20, 2009 Decision [2] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 30907 entitled People of the Philippines v. SPO2 Lolito T. Nacnac. The CA affirmed the May 23, 2007 Judgment[3] in Criminal Case No. 10750-14 of the Regional Trial Court (RTC), Branch 14 in Laoag City, which convicted petitioner of homicide. The Facts An Information charged the accused as follows: That on or about February 20, 2003, in Dingras, Ilocos Norte, and within the jurisdiction of this Honorable Court, accused SPO2 Lolito I. Nacnac, a public officer, being then a member of the Philippine National Police, assigned with the Dingras Police Station, Dingras, Ilocos Norte, did then and there willfully, unlawfully and feloniously, with intent to kill, shoot one SPO1 Doddie Espejo with a gun resulting into the latters death.[4]

A reverse trial ensued upon the claim of self-defense by the accused. As summarized by CA,

[5]

the shooting incident happened as follows: The victim, SPO1 Doddie Espejo[,] had a history of violent aggression and drunkenness. He once attacked a former superior, P/Insp. Laurel Gayya, for no apparent reason. On the day of his death, he visited a cock house for merriment. He was shot by accused-appellant [petitioner] on February 20, 2003 at around 10:00 p.m. at the Dingras Police Station, Dingras, Ilocos Norte. On that fateful night of February 20, 2003, accused-appellant, the victim and a number of other police officers were on duty. Their shift started at 8:00 in the morning of the same day, to end at 8:00 the next morning. Accused-appellant, being the highest ranking officer during the shift, was designated the officer-of-theday. Shortly before 10:00 in the evening, the victim, together with then SPO1 Eduardo Basilio, took the patrol tricycle from the station grounds. When accusedappellant saw this, he stopped the victim and his colleague from using the tricycle. The victim told accused-appellant that he (the victim) needed it to go to Laoag City to settle a previous disagreement with a security of a local bar. Accused-appellant still refused. He told the victim that he is needed at the station and, at any rate, he should stay at the station because he was drunk. This was not received well by the victim. He told accused-appellant in Ilocano: Iyot ni inam kapi (Coitus of your mother, cousin!). The victim alighted from the tricycle. SPO1 Eduardo Basilio did the same, went inside the office, and left the accused-appellant and the victim alone. The victim took a few steps and drew his .45 caliber gun which was tucked in a holster on the right side of his chest. Accused-appellant then fired his M-16 armalite upward as a warning shot. Undaunted, the victim still drew his gun. Accused-appellant then shot the victim on the head, which caused the latters instantaneous death. Accused-appellant later surrendered to the stations Chief of Police. Page 46 of 141

The RTC Ruling The RTC found the accused guilty of the crime charged. The RTC held that the claim of selfdefense by the accused was unavailing due to the absence of unlawful aggression on the part of the victim. The dispositive portion of the RTC Judgment reads: WHEREFORE, the accused SPO2 Lolito Nacnac is found GUILTY beyond reasonable doubt of the crime of homicide. Taking into the mitigating circumstance of voluntary surrender, the Court hereby sentences him to an indeterminate penalty ranging from EIGHT YEARS of prision mayor as minimum to FOURTEEN YEARS of reclusion temporal as maximum. He is also ordered to pay the heirs of the deceased (1) P50,000.00 as indemnity for his death, (2) P100,000.00 as actual damages, (3) P50,000.00 as moral damages, and (4) P20,000.00 as attorneys fees. Costs against the accused.[6]

The CA Ruling On appeal, the CA affirmed the findings of the RTC. It held that the essential and primary element of unlawful aggression was lacking. It gave credence to the finding of the trial court that no one else saw the victim drawing his weapon and pointing it at accused Senior Police Officer 2 (SPO2) Lolito T. Nacnac. The fallo of the CA Decision reads: WHEREFORE, the instant appeal is DISMISSED for lack of merit and the challenged Judgment dated May 23, 2007 in Criminal Case No. 10750-14 is AFFIRMED IN TOTO. [7]

On August 25, 2010, this Court issued a Resolution, denying Nacnacs petition for review for failure to sufficiently show that the CA committed any reversible error in the challenged decision and resolution as to warrant the exercise of this Courts appellate jurisdiction. On October 11, 2010, petitioner filed a Motion for Reconsideration of this Courts Resolution dated August 25, 2010. On March 21, 2012, this Court granted the Motion and reinstated the petition. Petitioner raises the following issues: 1. [Whether the CA erroneously held that] the victims drawing of his handgun or pointing it at the petitioner is not sufficient to constitute unlawful aggression based on existing jurisprudence. 2. [Whether the CA incorrectly appreciated the photo] showing the victim holding his handgun in a peculiar manner despite the fact that no expert witness was presented to testify thereto x x x. Page 47 of 141

3. [Whether petitioner] has met the second and third requisites of self-defense x x x. [8]

Petitioner argues that he did not receive a just and fair judgment based on the following: (1) the trial court did not resort to expert testimony and wrongly interpreted a photograph; (2) the trial court ignored the evidence proving unlawful aggression by the victim; (3) the trial court ignored the two gun reports and two empty shells found at the crime scene which the claim that petitioner fired a warning shot; and (4) the trial court failed to appreciate petitioners act of selfdefense. Petitioner also claims that the CA gravely erred in not giving proper weight and due consideration to the Comment of the Office of the Solicitor General (OSG). In its Comment[9] dated April 27, 2011, the OSG avers that petitioner is entitled to an acquittal, or at the very least, not one but two mitigating circumstances. Our Ruling We revisit Our ruling in the instant case. The Revised Penal Code provides the requisites for a valid self-defense claim: ART. 11. Justifying circumstances.The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur: First. Unlawful aggression; Second. Reasonable necessity of the means employed to prevent or repel it; Third. Lack of sufficient provocation on the part of the person defending himself.

Unlawful Aggression Unlawful aggression is an indispensable element of self-defense. We explained, Without unlawful aggression, self-defense will not have a leg to stand on and this justifying circumstance cannot and will not be appreciated, even if the other elements are present. [10] It would presuppose an actual, sudden and unexpected attack or imminent danger on the life and limb of a personnot a mere threatening or intimidating attitudebut most importantly, at the time the defensive action was taken against the aggressor. x x x There is aggression in contemplation of the law only when the one attacked faces real and immediate threat to ones life. The peril sought to be avoided must be imminent and actual, not just speculative. [11] Page 48 of 141

As We held: Even the cocking of a rifle without aiming the firearm at any particular target is not sufficient to conclude that ones life was in imminent danger. Hence, a threat, even if made with a weapon, or the belief that a person was about to be attacked, is not sufficient. It is necessary that the intent be ostensibly revealed by an act of aggression or by some external acts showing the commencement of actual and material unlawful aggression.[12] The following exchange showing actual and material unlawful aggression transpired during the examination of petitioner:[13] Atty. Lazo: At any rate, when you again prevented them from getting the tricycle telling them again that they should not get the tricycle, what happened next? Accused: When police officer Basilio alighted from the tricycle SPO1 Espejo also alighted sir. Q What did Doddie Espejo do when he alighted from the tricycle? A I saw him hold his firearm tucked on his right waist. (witness demonstrating by placing his right hand at his right sideways). And he was left handed, sir. Q And what happened next? A When I saw him holding his firearm that was the time I fired a warning shot, sir. Q And when you fired [a] warning shot, what happened next? A He drew his firearm, sir. Q When he drew his firearm, what did you do? A When he drew his firearm I shot him [on] his head once, sir. xxxx Atty. Cajigal: Q By the way, what kind of firearm did the victim draw from his waist? A Cal. 45, sir. Q What firearm did you use in defending yourself? A M-16 armalite, sir. xxxx Q Alright, you mean to tell the Honorable Court then that at the time that you pointed or squeezed the trigger of your gun the cal. 45 was already pointed at you? A Yes, sir. Page 49 of 141

Q Did you ever observe if he squeezed the trigger but the gun [was] already pointed at you? A He just pointed his firearm at me, sir. Q Who first pointed his firearm, the victim pointed his firearm at you before you pointed your firearm at him? A The victim, sir. Q In short, it was the victim whose gun was first pointed at you? A Yes, sir. Q And that was the time when you raised your armalite and also pointed the same at him is that right? A Yes, that was the time that I shot him, sir. (Emphasis supplied.)

According to the trial court, petitioners claim that the victim pointed his gun at petitioner was a mere afterthought. It ruled that petitioners sworn statement and direct testimony as well as the testimonies of SPO1 Eduardo Basilio and SPO2 Roosevelt Ballesteros only established that the victim drew his gun. The trial court went on to differentiate the act of drawing a gun and pointing it at a target. It held that the mere act of drawing a gun cannot be considered unlawful aggression. In denying petitioners motion for reconsideration, the CA affirmed the trial courts findings and further held that petitioner had fuller control of his physical and mental faculties in view of the victims drunken state. It concluded that the likelihood of the victim committing unlawful aggression in his inebriated state was very slim. [14] We disagree. The characterization as a mere afterthought of petitioners testimony on the presence of unlawful aggression is not ed by the records. The following circumstances negate a conviction for the killing of the victim: (1)

The drunken state of the victim;

(2)

The victim was also a police officer who was professionally trained at shooting;

(3)

The warning shot fired by petitioner was ignored by the victim;

(4)

A lawful order by petitioner was ignored by the victim; and

(5)

The victim was known for his combative and drunken behavior.

As testified by the victims companion, SPO1 Basilio, petitioner ordered him and the victim not to leave because they were on duty. SPO1 Basilio also confirmed that the victim was inebriated and had uttered invectives in response to petitioners lawful order. [15] Page 50 of 141

Ordinarily, as pointed out by the lower court, there is a difference between the act of drawing ones gun and the act of pointing ones gun at a target. The former cannot be said to be unlawful aggression on the part of the victim. In People v. Borreros,[16] We ruled that for unlawful aggression to be attendant, there must be a real danger to life or personal safety. Unlawful aggression requires an actual, sudden and unexpected attack, or imminent danger thereof, and not merely a threatening or intimidating attitude x x x. Here, the act of the [deceased] of allegedly drawing a gun from his waist cannot be categorized as unlawful aggression. Such act did not put in real peril the life or personal safety of appellant. The facts surrounding the instant case must, however, be differentiated from current jurisprudence on unlawful aggression. The victim here was a trained police officer. He was inebriated and had disobeyed a lawful order in order to settle a score with someone using a police vehicle. A warning shot fired by a fellow police officer, his superior, was left unheeded as he reached for his own firearm and pointed it at petitioner. Petitioner was, therefore, justified in defending himself from an inebriated and disobedient colleague. Even if We were to disbelieve the claim that the victim pointed his firearm at petitioner, there would still be a finding of unlawful aggression on the part of the victim. We quote with approval the OSGs argument [17] on this point: A police officer is trained to shoot quickly and accurately. A police officer cannot earn his badge unless he can prove to his trainors that he can shoot out of the holster quickly and accurately x x x. Given this factual backdrop, there is reasonable basis to presume that the appellant indeed felt his life was actually threatened. Facing an armed police officer like himself, who at that time, was standing a mere five meters from the appellant, the [latter] knew that he has to be quick on the draw. It is worth emphasizing that the victim, being a policeman himself, is presumed to be quick in firing. Hence, it now becomes reasonably certain that in this specific case, it would have been fatal for the appellant to have waited for SPO1 Espejo to point his gun before the appellant fires back.

Reasonable Means Employed To successfully invoke self-defense, another requisite is that the means employed by the accused must be reasonably commensurate to the nature and the extent of the attack sought to be averted.[18] ing petitioners claim of self-defense is the lone gunshot wound suffered by the victim. The nature and number of wounds inflicted by the accused are constantly and unremittingly considered as important indicia.[19] In People v. Catbagan,[20] We aptly held: Page 51 of 141

The means employed by the person invoking self-defense is reasonable if equivalent to the means of attack used by the original aggressor. Whether or not the means of self-defense is reasonable depends upon the nature or quality of the weapon, the physical condition, the character, the size and other circumstances of the aggressor; as well as those of the person who invokes self-defense; and also the place and the occasion of the assault.

In the instant case, the lone wound inflicted on the victim s the argument that petitioner feared for his life and only shot the victim to defend himself. The lone gunshot was a reasonable means chosen by petitioner in defending himself in view of the proximity of the armed victim, his drunken state, disobedience of an unlawful order, and failure to stand down despite a warning shot.

Lack of Sufficient Provocation The last requisite for self-defense to be appreciated is lack of sufficient provocation on the part of the person defending himself or herself. As gleaned from the findings of the trial court, petitioner gave the victim a lawful order and fired a warning shot before shooting the armed and drunk victim. Absent from the shooting incident was any evidence on petitioner sufficiently provoking the victim prior to the shooting. All told, We are convinced that petitioner was only defending himself on the night he shot his fellow police officer. The rule is that factual findings of the trial court and its evaluation of the credibility of witnesses and their testimonies are entitled to great respect and will not be disturbed on appeal.[21] This rule is binding except where the trial court has overlooked, misapprehended, or misapplied any fact or circumstance of weight and substance. [22] As earlier pointed out, the trial court did not consider certain facts and circumstances that materially affect the outcome of the instant case. We must, therefore, acquit petitioner. Given the peculiar circumstances of this case, We find that the prosecution was unable to establish beyond reasonable doubt the guilt of petitioner. Even the OSG shares this view in its Comment appealing for his acquittal. WHEREFORE, petitioners Motion for Reconsideration is GRANTED. The CA Decision dated July 20, 2009 in CA-G.R. CR-H.C. No. 30907 is REVERSED and SET ASIDE. Petitioner SPO2 Lolito T. Nacnac is ACQUITTED of homicide on reasonable doubt.

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The Director of the Bureau of Prisons is ordered to immediately RELEASE petitioner from custody, unless he is being held for some other lawful cause, and to INFORM this Court within five (5) days from receipt of this Decision of the date petitioner was actually released from confinement. 7. PEOPLE v. MELANIO MAPAIT : ) (G.R. No. 172606- November 23, 2011) BERSAMIN, J.: Self-defense is often readily claimed by an accused even if false. It is time, then, to remind the Defense about the requisites of the justifying circumstance and about the duty of the Defense to establish the requisites by credible, clear and convincing evidence. Melanio Nugas y Mapait appeals the decision promulgated on March 8, 2006, [1] whereby the Court of Appeals (CA) affirmed his conviction for murder under the decision rendered on August 17, 2000 by the Regional Trial Court, Branch 73, in Antipolo City (RTC). Antecedents On June 25, 1997, the Office of Provincial Prosecutor in Antipolo City charged Jonie Araneta y Nugas (Araneta) with murder committed as follows: That on or about the 26 th day of March 1997, in the Municipality of Antipolo, Province of Rizal Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, armed with a bladed weapon, conspiring and confederating with an unidentified male person, whose true identity and present whereabout is still unknown, with treachery and taking advantage of their superior strength, did, then and there wilfully, unlawfully and feloniously attack, assault and stab with the said bladed weapon one Glen Remigio y Santos hitting the latter on the left neck, thereby inflicting upon him mortal stab wound which directly caused his death. CONTRARY TO LAW.[2] On April 7, 1998, the Office of the Provincial Prosecutor, learning of the identity of the unidentified male co-conspirator of Araneta as Melanio Nugas y Mapait (Nugas), amended the information to include Nugas as a co-principal, to wit: That on or about the 26th day of March, 1997, in the Municipality of Antipolo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping and aiding one another, armed with a bladed weapon, with intent to kill, evident premeditation, treachery, and taking advantage of superior strength, did then and there wilfully, unlawfully and feloniously attack, assault and stab with the said Page 53 of 141

bladed weapon one Glen Remegio y Santos hitting the latter on the left neck, thereby inflicting upon him mortal stab wound which directly caused his death. CONTRARY TO LAW.[3] Upon arraignment on June 9, 1998, Araneta and Nugas, both assisted by counsel de officio, voluntarily and spontaneously pleaded not guilty to the offense charged.[4] In the course of the presentation of evidence for the Defense, Araneta manifested his willingness to change his plea, and to enter a plea of guilty as an accomplice in homicide. On July 19, 1999, the RTC approved his offer to change plea. The plea bargaining was with the conformity of the State Prosecutor and the heirs of the victim. Thus, after ensuring that Araneta had understood the consequences of his new plea of guilty, the RTC allowed him to enter a new plea. He was subsequently duly convicted as an accomplice in homicide and sentenced to suffer an indeterminate penalty of two years, four months, and one day of prision correccional, as minimum, to eight years and one day of prision mayor, as maximum.[5] The trial proceeded against Nugas. Evidence of the Prosecution On March 26, 1997, at about 9:00 in the evening, Glen Remigio (Glen), his wife, Nila Remigio (Nila), and their two children, Raymond and Genevieve, then 11-and 6-years old, respectively, were traveling on board their family vehicle, a Tamaraw FX, along Marcos Highway in COGEO, Antipolo, Rizal. Glen was driving, while Nila sat to his extreme right because their children sat between them. While they were ing along Carolina Village, two men waved at them signalling their request to hitch a ride. Glen accommodated the two men, one of whom was carrying a maroon plastic bag, allowing them to board the vehicle at the rear. When the vehicle neared Masinag Market, the two men suddenly brandished knives that each pointed at Glens and Nilas necks, warning them not to make any wrong move if they did not want to be harmed. Considering that the two men demanded to be brought to Sta. Lucia Mall, Glen continued driving the vehicle. Upon the vehicle reaching Kingsville Village, the man behind Glen suddenly stabbed Glen on the neck. Thereafter, the two men alighted and fled. Glen pulled the knife from his neck and handed it to Nila. He drove to the nearest hospital, but he collapsed on the way and lost control of the vehicle, causing it to run over two pedestrians, one of whom died and the other suffered a broken arm. Once the vehicle hit the railings of a gas station, Nila cried for help. Concerned citizens immediately rushed Glen to the nearest hospital, which was about 50 to 60 meters away. Nila stayed behind to look after their children. When she checked the vehicle, she found the knife, its scabbard, and the maroon plastic bag left by the assailants at the rear of the vehicle. She gathered the articles and later turned them over to the police officer in charge of the Page 54 of 141

investigation. The maroon plastic bag was found to contain the following items: a National Bureau of Investigation clearance, [6] a police clearance,[7] Social Security System papers, [8] and official receipts,[9] all issued in the name of Araneta, a stainless fork knuckle, and a bunch of keys. Despite undergoing treatment, Glen succumbed, [10] and his body was brought for autopsy to the Philippine National Police Crime Laboratory. The autopsy revealed that Glen had sustained a fatal stab wound on the left side of his neck originating from the front and going towards the back and downwards towards the center of his body, piercing the apex of the left lung and transecting the left common carotid artery; that the stab wound had been inflicted by a single bladed weapon; and that the immediate cause of his death was the hemorrhage resulting from the stab wound. [11]

It was opined that the position of the stab wound would suggest that had the assailant used

his left hand, he was probably directly behind the victim; but had he used his right hand, he had to be somewhere to the extreme left of the victim. During trial, Nila identified Nugas as the person who had sat behind her husband and who had stabbed her husband in the neck, and Araneta as the person who had sat behind her and who had carried the maroon plastic bag that she had later recovered from the backseat. Other witnesses presented were the investigating police officer, the medico-legal officer who had performed the autopsy, and Atty. Jose S. Diloy, the lawyer who had assisted Araneta in executing a sworn statement pointing to Nugas, his own uncle, as the person who had stabbed the driver of the vehicle they were riding on March 26, 1997. The State adduced object and documentary evidence, including the knife, the maroon plastic bag and all its contents, Medico Legal Report No. M-0406-97, [12] and the sworn statement of Araneta.[13] Evidence of Nugas Albeit itting having stabbed Glen, Nugas maintained that he did so in self-defense. He claimed that the Tamaraw FX driven by Glen was a enger taxi, not a family vehicle; that when he and Araneta boarded the vehicle at Gate 1 in COGEO, Antipolo, about four other engers were already on board; that he argued with Glen about the fare, because Glen was overcharging; that when he was about to alight in front of Rempson Supermarket, Glen punched him and leaned forward as if to get something from his clutch bag that was on the dashboard; that thinking that Glen was reaching for a gun inside the clutch bag, he stabbed Glen with his left hand from where he was seated in order to protect himself (Inunahan ko na sya); and that when Page 55 of 141

asked why he carried a knife, he replied that he needed the knife for protection because he was living in a squatters area.

Ruling of the RTC On August 17, 2000, the RTC convicted Nugas of murder, ruling that his guilt had been established beyond reasonable doubt. The RTC accorded greater credence to the testimony of Nila because she had consistently narrated the incident. It observed that although Nila had initially made a mistake in identifying who, as between Nugas and Araneta, had stabbed her husband, she had rectified her error upon seeing the two accused together in person; that despite the resemblance of Nugas and Araneta to each other, she had firmly pointed to Nugas as the person who had stabbed Glen; that even granting to be true Nugas version that Glen had pushed and punched him, his stabbing of Glen could not be a reasonable and necessary means to repel the attack, for, by all standards, fists were no match to knives; that treachery had been duly proved beyond reasonable doubt, because Nugas position inside the vehicle in relation to Glen, who had sat on the drivers seat, and Nugas manner of inflicting the fatal blow from behind warranted the inference that Nugas had taken advantage of his position to specially ensure the execution of the felony, without risk to himself arising from any defense that Glen might make. The RTC disposed thusly: WHEREFORE, premises considered, accused MELANIO NUGAS is hereby found guilty beyond reasonable doubt and is hereby sentenced to suffer the penalty of Reclusion Perpetua. Nugas is hereby further ordered to pay to heirs of Glen Remigio the amount of P80,000.00 for actual damages, P50,000.00 for funeral expenses and P50,000 as death indemnity. SO ORDERED.[14] Ruling of the CA Upon review,[15] the CA affirmed the factual and legal conclusions of the RTC, and declared that Nugas invoking of self-defense shifted the burden to him to prove the attendance of the elements of self-defense, but he failed to discharge such burden. Issue Page 56 of 141

Nugas has now come to the Court to reverse his conviction, and begs us to delve into whether the affirmance by the CA was proper, and whether the attendant circumstance of treachery was duly proven. Ruling The appeal has no merit. By pleading self-defense, an accused its the killing, [16] and thereby assumes the burden to establish his plea of self-defense by credible, clear and convincing evidence; otherwise, his conviction will follow from his ission of killing the victim. Self-defense cannot be justifiably appreciated when it is uncorroborated by independent and competent evidence or when it is extremely doubtful by itself. Indeed, the accused must discharge the burden of proof by relying on the strength of his own evidence, not on the weakness of the States evidence, [17] because the existence of self-defense is a separate issue from the existence of the crime, and establishing self-defense does not require or involve the negation of any of the elements of the offense itself. [18]

To escape liability, the accused must show by sufficient, satisfactory and convincing evidence that: (a) the victim committed unlawful aggression amounting to an actual or imminent threat to the life and limb of the accused claiming self-defense; (b) there was reasonable necessity in the means employed to prevent or repel the unlawful aggression; and ( c) there was lack of sufficient provocation on the part of the accused claiming self-defense or at least any provocation executed by the accused claiming self-defense was not the proximate and immediate cause of the victims aggression.[19] The RTC found that Nugas did not establish the requisites of self-defense. The CA concurred. The Court upholds both lower courts. Unlawful aggression on the part of the victim is the primordial element of the justifying circumstance of self-defense. Without unlawful aggression, there can be no justified killing in defense of oneself. [20] The test for the presence of unlawful aggression under the circumstances is whether the aggression from the victim put in real peril the life or personal safety of the person defending himself; the peril must not be an imagined or imaginary threat. [21] Accordingly, the accused must establish the concurrence of three elements of unlawful aggression, namely: Page 57 of 141

(a) there must be a physical or material attack or assault; (b) the attack or assault must be actual, or, at least, imminent; and (c) the attack or assault must be unlawful.[22] Unlawful aggression is of two kinds: (a) actual or material unlawful aggression; and (b) imminent unlawful aggression. Actual or material unlawful aggression means an attack with physical force or with a weapon, an offensive act that positively determines the intent of the aggressor to cause the injury. Imminent unlawful aggression means an attack that is impending or at the point of happening; it must not consist in a mere threatening attitude, nor must it be merely imaginary, but must be offensive and positively strong (like aiming a revolver at another with intent to shoot or opening a knife and making a motion as if to attack). Imminent unlawful aggression must not be a mere threatening attitude of the victim, such as pressing his right hand to his hip where a revolver was holstered, accompanied by an angry countenance, or like aiming to throw a pot.[23] Nugas did not credibly establish that Glen had first punched him and then reached for his clutch bag on the dashboard, making Nugas believe that he had a gun there. For one, as the CA pointed out, Nugas itted not actually seeing if Glen had a gun in his clutch bag. [24] And, secondly, the CA correctly found and declared Nugas testimony about Glen punching him to be improbable, viz:[25] It is also highly improbable that the victim, in relation to accused-appellant Nugas position, can launch an attack against the latter. First, the victim was at the drivers seat and seated between him were his wife and two children. Second, the victim was driving the FX vehicle. Third, accused-appellant Nugas was seated directly behind the victim. All things considered, it is highly improbable, nay risky for the victims family, for him to launch an attack.

Consequently, Nugas had absolutely no basis for pleading self-defense because he had not been subjected to either actual or imminent threat to his life. He had nothing to prevent or to repel considering that Glen committed no unlawful aggression towards him. With unlawful aggression, the indispensable foundation of self-defense, not having been established by Nugas, it is superfluous to still determine whether the remaining requisites of selfdefense were attendant. As the Court made clear in People v. Carrero:[26] Unlawful aggression is the main and most essential element to the theory of self-defense and the complete or incomplete exemption from criminal liability; without such primal requisite it is not possible to maintain that a person acted in self-defense within the under which unlawful aggression is subordinate to the other two conditions named in article 8, No. 4, of the Penal Code.[27] When an act of Page 58 of 141

aggression is in response to an insult, affront, or threat, it cannot be considered as a defense but as the punishment which the injured party inflicts on the author of the provocation, and in such a case the courts can at most consider it as a mitigating circumstance, but never as a reason for exemption, except in violation of the provisions of the Penal Code. (emphasis supplied) Treachery is present when two conditions concur, namely: (a) that the means, methods and forms of execution employed gave the person attacked no opportunity to defend himself or to retaliate; and (b) that such means, methods and forms of execution were deliberately and consciously adopted by the accused without danger to his person. [28] The essence of treachery lies in the attack that comes without warning, and the attack is swift, deliberate and unexpected, and affords the hapless, unarmed and unsuspecting victim no chance to resist or escape, thereby ensuring its accomplishment without the risk to the aggressor, without the slightest provocation on the part of the victim. What is decisive is that the execution of the attack made it impossible for the victim to defend himself or to retaliate. Treachery may also be appreciated when the victim, although warned of the danger to his life, is defenseless and unable to flee at the time of the infliction of the coup de grace.[29] The CA exhaustively discussed and rightly determined the presence of treachery as a circumstance attendant in the killing of Glen and the improbability of Glen launching an attack against or defending himself from Nugas by reason of their relative positions. We affirm the CA, because there was nothing adduced by Nugas that refuted how the relative positions of Glen and Nugas had left the former defenseless and unable to parry or to avoid the fatal blow of the latter. Verily, Nugas stabbed Glen from behind with suddenness, thereby deliberately ensuring the execution of the killing without any risk to himself from any defense that Glen might make. WHEREFORE, we AFFIRM the decision promulgated on March 8, 2006 finding MELANIO NUGAS y MAPAIT guilty beyond reasonable doubt of the crime of murder.

8. PEOPLE v. CREDO (G.R. No. 197360- July 3, 2013) PEREZ, J.: This is an appeal from the Decision 1 of the Court of Appeals in CA-G.R. CR-HC No. 04113 promulgated on 28 February 2011. The decision of the Court of Appeals affirmed, with modifications, the Decision2 dated 14 July 2009 of the Regional Trial C6urt, Branch 31, Pili, Camarines Sur, in Criminal Case No. P-3819 finding accused-appellants Ronald Credo a.k.a. "Ontog," Randy Credo and Rolando Credo y San Buenaventura guilty beyond reasonable doubt of murder for the death of Joseph Nicolas.

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Factual Antecedents The amended Information3 filed against appellants reads: That on June 22, 2005 at around 10:30 in the evening at Zone 4 Barangay San JOSE, Municipality of Pili, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did then and there, with intent to take the life of JOSEPH NICOLAS Y arroyo (sic), willfully, unlawfully and feloniously attack and hack the latter with a bolo, wounding him in the different parts of the body, per autopsy report marked as Annex "A" hereof, thereby causing the direct and immediate death of said JOSEPH NICOLAS y ARROYO. Abuse of superior strength being attendant in the commission of the crime, the same will qualify the offense committed to murder. ACTS CONTRARY TO LAW. Based on the respective testimonies of the witnesses for the prosecution, the following sequence of events was gathered: On 22 June 2005, at around 10:30 in the evening, the victim, Joseph Nicolas (Joseph), was at a "bingohan" in Zone 3 of Brgy. San Nicolas, Pili, Camarines Sur, together with his wife Maria and friends Manuel Chica (Manuel) and Ramon Tirao. Randy Credo (Randy) arrived at the "bingohan," approached Joseph and suddenly punched the latter on the chest, causing him to fall down. Randy then immediately ran away towards the direction of their house located at Zone 4. Joseph, on the other hand, stood up, gathered his things consisting of a lemon and an egg, and gave Randy a chase. The people at the "bingohan" all scampered away as a result of the commotion.4Joseph’s friend Manuel proceeded towards Zone 3. There, he met Randy, who was already accompanied by his co-appellants: his brother Ronald Credo (Ronald) and their father Rolando Credo (Rolando). The three were each armed with a bolo. 5 Meanwhile, when Joseph’s children, Russel, Ramon, Roldan and Rea, heard that their father was in trouble, they decided to look for him in Zone 3. On their way, they met appellants, who suddenly started throwing stones at them, causing them to run away. Russel got separated from his siblings but he continued to look for his father. He came across appellants again in Zone 2 where he saw them hacking somebody with their bolos. That person later turned out to be their father. Russel saw that when all three appellants were done hacking their victim, Randy and Rolando went back to where the victim was lying and gave him another blow, saying in the Bicolano dialect, "pang-dulce" (for dessert). 6 The scene was witnessed by another person, Francis Nicolas Credo (Francis), a resident of Zone 2.7 According to Francis, at the time of the incident, he was in his bedroom preparing to go to sleep when he heard a commotion outside his house. He heard Roger Credo, the brother of Randy and Ronald, shout: "Tama na Manoy, gadan na!" (Enough brother, he is already dead!) Upon hearing these words, Francis went out of the bedroom, proceeded to their sala and peeped through the jalousies of the sala window. He saw appellants, all armed with a bolo, repeatedly hacking Joseph to death.8 He saw the hacking incident very clearly because the place was lighted Page 60 of 141

by a lamppost and the moon was shining brightly. Moreover, the distance between the crime scene and the window from where he was watching is only about 3 to 4 meters. 9 Francis was able to note that Joseph was unarmed and was, in fact, holding a lemon in his right hand and an egg in his left hand.10 Joseph died on the same day of the incident. He obtained six (6) hack wounds: one on the right ear, two on the left scapular area, one on the lumbar area, one on the right forearm and another one on the left lateral neck area which, according to the doctor who conducted the autopsy on the body of Joseph, was the most fatal wound. 11 Rolando and Randy denied any participation in the hacking incident, claiming that it was Ronald alone who killed Joseph. They also claimed that the killing was done in defense of Ronald and Randy’s mother whom Joseph was, at the time of the incident, about to hack. 12 Based on appellants’ testimony, when Ronald heard of what happened between Randy and Joseph, Ronald left the house with a bolo in search of Joseph. When their parents learned that Ronald left to confront Joseph, they followed Ronald to the "bingohan." 13 Rina Credo Hernandez, sister of Ronald and Randy, testified that while their parents and Ronald were walking back towards their house from the "bingohan," Joseph suddenly emerged from the back of their house with a bolo. She saw that Joseph was brandishing the bolo and was about to attack their mother so she shouted a warning to their mother. Ronald came to her rescue and attacked Joseph, 14 resulting in the latter’s death. Ruling of the Regional Trial Court The trial court found that appellants conspired in the commission of the crime and that the killing of Joseph was attended by abuse of superior strength. Hence, on 14 July 2009, the trial court rendered its decision finding appellants guilty beyond reasonable doubt of the crime of murder, sentencing them to suffer the penalty of reclusion perpetua, and ordering them to pay the widow of Joseph the amounts of P14,000.00 as actual damages, P50,000.00 as civil 15 indemnity, P50,000.00 as moral damages, and P50,000.00 as exemplary damages. Ruling of the Court of Appeals On appeal, the Court of Appeals affirmed the judgment of conviction but modified the award of damages in the following manner: (1) civil indemnity was increased from P50,000.00 to P75,000.00; (2) the award of moral damages was likewise increased from P50,000.00 to P75,000.00; (3) the amount of exemplary damages was reduced from P50,000.00 to P30,000.00; and (4) temperate damages in the amount of P25,000.00 was imposed in place of actual damages.16 The Issues In their Brief17 filed before the Court of Appeals, appellants prayed or their acquittal, pleading the following grounds: I Page 61 of 141

THE TRIAL COURT GRAVELY ERRED IN NOT GIVING EXCULPATORY WEIGHT TO THE DEFENSE OF RELATIVES INTERPOSED BY ACCUSED-APPELLANT RONALD CREDO. II THE TRIAL COURT GRAVELY ERRED IN FINDING THAT ACCUSED-APPELLANTS ROLANDO CREDO AND RANDY CREDO ARE GUILTY OF THE CRIME CHARGED. III THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT THE TESTIMONIES OF THE PROSECUTION WITNESSES ARE FLAWED AND INCONSISTENT. IV THE TRIAL COURT GRAVELY ERRED IN APPRECIATING ABUSE OF SUPERIOR STRENGTH AS QUALIFYING CIRCUMSTANCE DESPITE THE PROSECUTION’S FAILURE TO PROVE ITS ATTENDANCE. Appellants subsequently filed a Supplemental Brief 18 before this Court, alleging the following as additional assignment of errors: V THE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE ACCUSED-APPELLANTS CONSPIRED WITH EACH OTHER IN THE COMMISSION OF THE CRIME CHARGED. VI THE COURT OF APPEALS GRAVELY ERRED IN INCREASING THE AWARD OF CIVIL INDEMNITY FROM FIFTY THOUSAND PESOS (PHP50,000.00) TO SEVENTY-FIVE THOUSAND PESOS (PHP75,000.00). Pending resolution of this appeal, the Court received a letter, 19 dated 13 September 2011, from P/Supt. Richard W. Schwarzkopf, Jr., Officer-in-Charge, Office of the Superintendent, New Bilibid Prison, informing the Court that Rolando had died at the New Bilibid Prison Hospital on 23 June 2011. Attached to his letter was a certified true copy of the certificate of death 20 of Rolando listing "Cardio respiratory Arrest" as the immediate cause of death. As a consequence of Rolando’s death while this case is pending appeal, both his criminal and civil liability ex delicto were extinguished pursuant to Article 89 of the Revised Penal Code. The said provision of law states that criminal liability is totally extinguished by "the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability therefor is extinguished only when the death of the offender occurs before final judgment." This appeal shall, as a result, be decided as against Randy and Ronald only. Our Ruling The appeal has no merit. Page 62 of 141

At the outset, it bears repeating that factual findings of the trial court, when affirmed by the Court of Appeals, are generally binding and conclusive upon the Supreme Court. 21 Except for compelling or exceptional reasons, such as when they were sufficiently shown to be contrary to the evidence on record, the findings of fact of the Regional Trial Court will not be disturbed by this Court.22 Thus, once a guilty verdict has been rendered, the appellant has the burden of clearly proving on appeal that the lower court committed errors in the appreciation of the evidence presented.23 Here, there is no showing that the trial court or the Court of Appeals overlooked some material facts or committed any reversible error in their factual findings. Trial court’s assessment of a witness accorded great weight

of

the

credibility

Appellants claim that the respective testimonies of Russel and Francis were marked with several inconsistencies that cast doubt on their veracity, especially considering that they are the son and the nephew, respectively, of the victim. They noted that Francis narrated that after Ronald hacked Joseph, Rolando left with his wife followed by Ronald and Randy. Russel, on the other hand, testified that after the three appellants hacked the victim, Randy and Rolando went back to where the victim was lying down and gave him another blow, saying, "pang-dulce." Moreover, Francis initially stated that after the hacking incident, the victim was left lying on the ground on his side. However, when again questioned by the court as to what he saw, Francis gave a different answer, saying that the victim was lying flat on the ground. 24 This Court is not persuaded. Corollary to the principle that appellate courts generally will not interfere with the factual findings of the trial court is the rule that when the credibility of an eyewitness is at issue, due deference and respect is given by the appellate courts to the assessment made by the trial courts, absent any showing that the trial courts overlooked facts and circumstances of substance that would have affected the final outcome of the case. 25 "As consistently adhered to by this Court, the matter of asg values to declarations on the witness stand is best and most competently performed by the trial judge, who had the unmatched opportunity to observe the witnesses and to assess their credibility by the various indicia available but not reflected on the record."26 We agree with the findings of both the trial court and the Court of Appeals which gave weight to the s of the two eyewitnesses, Russel and Francis. Their respective testimonies positively and categorically identified appellants as the perpetrators of the crime. Their statements on the witness stand also corroborate each other on material aspects. Both Russel and Francis testified that they saw the appellants hacking a man. Although Francis was able to immediately recognize the victim as Joseph, Russel was to learn only later on that the appellants’ victim was his own father. It is also worth noting that the statement of Russel and Francis claiming that all three of the appellants were holding a bolo at the time of the incident is corroborated by another witness: Manuel Chica. Manuel testified that after Randy and Joseph left the "bingohan," he also left to follow the two. On his way, he met the three appellants all armed with a bolo. 27 The pertinent portions of the respective testimonies of Francis and Russel on the matter are as follows: Page 63 of 141

PROS. FAJARDO: xxxx Q Now, let’s clarify, Mr. witness. If you could demonstrate actually the distance from where you are seated to anywhere of this courtroom, the place as you said the distance of that hacking incident happened [sic], can you do that? xxxx PROS. FAJARDO: Three (3) meters. ATTY. PREVOSA counsel for the defense: Three (3) to four (4) meters, your Honor. PROS. FAJARDO: xxxx Q You mentioned the person being hacked by three (3) persons, right? [FRANCIS N. CREDO] A Yes, your Honor. Q Who were these three (3) persons hacking this other person as you said? A Rolando Credo, Ronald Credo, Randy Credo. Q Why were you able to identify Rolando, Ronald, Randy Credo? A I was able to identify the accused because other than the light there is a moonlight so I clearly identified the three (3) persons. 28 (Emphases supplied) xxxx PROS. FAJARDO: Q Now, after you were stoned, what did you and your group do? xxxx [RUSSEL NICOLAS]

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A We went on our separate way [sic] one of my brother Ramon went directly to our grandmother’s house x x x and then I saw something. Q What was that you saw? A Then I saw the three (3) Randy, Ontog, and Rolando [sic]. Q Now, what did you observe when you saw this Randy, Rolando and Ontog? A I saw them hacking someone but I was not able to eye that someone because I was not yet near them x x x.29(Emphases supplied) xxxx It is worth mentioning as well that the following testimony of Russel confirms the statement of Francis that the hacking incident occurred just in front of their house, 30 giving him (Francis) a clear view of what transpired: PROS. FAJARDO: Q Now, in what particular place did you see Randy and Rolando and Ontog hacked [sic] this person? [RUSSEL NICOLAS] A In front of the house of Lolita Credo. Q How is this Lolita Credo related to Francisco Credo? A Lolita is the mother of Francisco. 31 Both Francis and Russel likewise each other’s statement on the act of at least one of the appellants of going back to where Joseph was lying on the ground to give him another blow with a bolo. Thus: PROS. FAJARDO: xxxx Q When you peeped to [sic] your window, jalousie window, what was Rolando Credo doing? [FRANCIS N. CREDO] A The three (3) of them hacked the man and the man fell on the ground, while on the ground he was again hacked on the head by Ronald Credo. 32 (Emphasis supplied) xxxx Page 65 of 141

PROS. FAJARDO: xxxx Q Now, what did you observe when you saw this Randy, Rolando and Ontog? [RUSSEL NICOLAS] A I saw them hacking someone but I was not able to eye that someone because I was not yet near them however, these Randy and Rolando returned back and said "pang dulce" then hacked again.33 (Emphasis supplied) xxxx The inconsistency in the respective statements of Francis and Russel with respect to who among the three appellants actually dealt the final blow on the victim is understandable considering that they witnessed the scene from different vantage points. Francis definitely had a clearer view as he was nearer the scene of the crime (3-4 meters) whereas Russel was much farther as evidenced by the fact that from where he was watching, he was unable to recognize the victim as his father. All the same, both were one in saying that at least one of the appellants returned to where the victim was prostrate to give him another blow. The aforementioned inconsistency is, moreover, a minor detail that does not affect the credibility of Russel and Francis as eyewitnesses. Likewise, the other inconsistencies pointed out by appellants pertain "only to collateral or trivial matters and has no substantial effect on the nature of the offense."34 The primordial consideration is that both Russel and Francis were present at the scene of the crime and that they positively identified appellants as the perpetrators of the crime charged.35 This Court has been consistent in ruling that "although there may be inconsistencies in the testimonies of witnesses on minor details, they do not impair their credibility where there is consistency in relating the principal occurrence and positive identification of the assailant." 36 Finally, the attack of appellants on the credibility of Francis as a witness for the prosecution on the ground that the victim is the brother of Francis’ mother – making Francis the nephew of the victim – loses significance when the relationship of Francis with the appellants is considered: appellant Rolando is his uncle, being the brother of his father, thereby making appellants Randy and Ronald his first cousins. As held by the Court of Appeals: Considering that appellants are also his close relatives, it is difficult to believe that Francis would point to appellants as the killers, if such were not true. Moreover, the lack of proof of ill-motive on the part of Francis, indicate that he testified, not to favor any of the parties in this case, but solely for the purpose of telling the truth and narrating what he actually witnessed. His testimony deserves full faith and credit.37 Requisites of a relative not present

for

valid

defense

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Randy contends that the trial court misconstrued the facts of this case when it held that the defense he interposed was self-defense. According to him, in view of the consistent and corroborating testimonies of the defense witnesses that he merely stepped-in to protect his mother from being hacked by the victim, the proper defense that should have been appreciated by the lower court is defense of relatives. This argument is untenable. The following excerpts from the Transcripts of Stenographic Notes (TSNs) of this case categorically show that appellant Ronald interposed not just defense of relatives but self-defense as well: 1. TSN of 12 August 2008: ATTY. PREVOSA [counsel for the defense]: x x x. This witness [Flora O. Credo, mother of Randy and Ronald] will testify on the theory of selfdefense of the accused, x x x.38 2. TSN of 27 August 2008: ATTY. PREVOSA: The Witness [accused Rolando Credo] is being presented to testify that in order to safe [sic] himself and her [sic] mother, Ronald Nicolas [sic] was able to cause injury to Joseph Nicolas x x x.39 3. TSN of 14 January 2009: ATTY. PREVOSA: We are offering the testimony of this witness [accused Ronald Credo] to prove the following; That he was able to harm to death the private complainant [sic] Joseph Nicolasin [sic] order to defend himself, relatives and his own family, x x x. 40 Further, the following portions of the testimony of Flora Credo likewise clearly demonstrate that Ronald pleaded self-defense before the trial court: THE COURT: By the way, your son hacked for self-defense did you report that to the Police when you surrendered your son? A No, your Honor, please. xxxx Page 67 of 141

Q You even surrendered your son to the Police so why did you not immediately tell the Police that your son killed Joseph Nicolas for self-defense? A I said that, your Honor I directed that statement, your Honor. xxxx Q When did you right then and there that you surrendered you [sic] son to tell the Police he hacked for self-defense? A Yes, your Honor. xxxx Q Do you have proof to show that indeed you informed the Police that your son the (sic) hacking is self-defense? A Yes, your Honor.41 xxxx Thus, appellant Ronald cannot now claim that the defense he pleaded is defense of relatives only and does not include self-defense and that the trial court misappreciated the facts of this case when it considered self-defense instead of defense of relatives. In any case, even if the claim of defense of a relative is taken into consideration, the same would still not be valid. Article 11 of the Revised Penal Code provides, in part, as follows: ART. 11. Justifying circumstances. – The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur: First. Unlawful aggression; Second. Reasonable necessity of the means employed to prevent or repel it; Third. Lack of sufficient provocation on the part of the person defending himself. 2. Anyone who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate, natural or adopted brothers or sisters, or of his relatives by affinity in the same degrees, and those by consanguinity within the fourth civil degree, provided that the first and second requisites prescribed in the next preceding circumstance are present, and the further requisite, in case the provocation was given by the person attacked, that the one making defense had no part therein. Page 68 of 141

xxxx Based on the afore-quoted provision, both self-defense and defense of relatives require that unlawful aggression be present in order to be held valid. "For the accused to be entitled to exoneration based on self-defense or defense of relatives, complete or incomplete, it is essential that there be unlawful aggression on the part of the victim, for if there is no unlawful aggression, there would be nothing to prevent or repel. For unlawful aggression to be appreciated, there must be an actual, sudden and unexpected attack or imminent danger thereof, not merely a threatening or intimidating attitude."42 As found by the trial court, there can be no unlawful aggression on the part of Joseph because at the time of the incident, he was only holding a lemon and an egg. According to the trial court, the fact that Joseph was unarmed effectively belied the allegation of Ronald that he was prompted to retaliate in self-defense when Joseph first hacked and hit him on his neck. The trial court further pointed out that if Joseph indeed hacked Ronald on the neck, "it is surprising that the latter did not suffer any injury when according to them (Ronald, Rolando and Flora Credo), Joseph was running fast and made a hard thrust on Ronald, hitting the latter’s neck." 43 Since the criterion for determining whether there is a valid self-defense and a valid defense of relatives require that there be unlawful aggression perpetrated by the victim on the one making the defense or on his relative, it is safe to conclude that when the trial court held that there can be no valid self-defense because there was no unlawful aggression on the part of the victim, it was, in effect, likewise saying that there can be no valid defense of a relative for lack of an essential requisite. In other words, when the trial court made a ruling on the claim of selfdefense, it, at the same time, also necessarily ed upon the issue of defense of a relative. Appellants acted another in the execution of the crime

in

conspiracy

with

one

"Conspiracy is said to exist where two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Direct proof is not essential to prove conspiracy for it may be deduced from the acts of the accused before, during and after the commission of the crime charged, from which it may be indicated that there is a common purpose to commit the crime."44 In the present case, the prosecution witnesses were one in saying that prior to the hacking incident, they saw all three appellants walking together towards the direction of the "bingohan" and that all three were each carrying a bolo. Appellants, therefore, deliberately sought Joseph out to confront him about the altercation incident between him and Randy. Likewise, the two eyewitnesses confirm each other’s respective statements that all three appellants were armed with a bolo with which they repeatedly hacked the victim, who fell to the ground; after which, appellants left the scene of the crime. While no evidence was presented to show that appellants met beforehand and came to an agreement to harm Joseph, their concerted acts before, during and after the incident all point to a unity of purpose and design. Indeed, "proof of a previous agreement and decision to commit the crime is not essential but the fact that the malefactors acted in unison pursuant to the same Page 69 of 141

objective suffices."45 Such proof "may be shown through circumstantial evidence, deduced from the mode and manner in which the offense was perpetrated, or inferred from the acts of the accused themselves when such lead to a t purpose and design, concerted action and community of interest."46 Abuse of the commission of the crime

superior

strength

attended

There is abuse of superior strength when the perpetrators of a crime deliberately used excessive force, thereby rendering the victim incapable of defending himself. 47 "The notorious inequality of forces creates an unfair advantage for the aggressor." 48 Here, there can be no denying that appellants took advantage of their superior strength to ensure the successful execution of their crime. This is evident from the fact that there were three of them against the victim who was alone. More importantly, their victim was unarmed while the three of them were each armed with a bolo. Award of damages In People v. Anticamara,49 this Court laid down the standards in the proper award of damages in criminal cases, as follows: x x x the award of civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the commission of the crime. In People v. Quiachon, the Court held that even if the penalty of death is not to be imposed because of the prohibition in R.A. 9346, the civil indemnity of P75,000.00 is proper, because it is not dependent on the actual imposition of the death penalty but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense. As explained in People v. Salome, while R.A. No. 9346 prohibits the imposition of the death penalty, the fact remains that the penalty provided for by law for a heinous offense is still death, and the offense is still heinous. Accordingly, the award of civil indemnity in the amount of P75,000.00 is proper.1âwphi1 Anent moral damages, the same are mandatory in cases of murder, without need of allegation and proof other than the death of the victim. However, consistent with recent jurisprudence on heinous crimes where the imposable penalty is death but reduced to reclusion perpetua pursuant to R.A. No. 9346, the award of moral damages should be increased from P50,000.00 to P75,000.00. Accordingly, the Court of Appeals was correct in increasing the lower court’s award of civil indemnity fromP50,000.00 to P75,000.00. Regardless of the penalty imposed by the trial court, the correct amount of civil indemnity is P75,000.00, pursuant to the ratiocination of the Court in the above-cited case of People v. Anticamara. The Court of Appeals, however, erred when it increased the amount of moral damages from P50,000.00 toP75,000.00. In accordance with the pronouncement of the Court in the Anticamara Case, the correct sum should be P50,000.00. Page 70 of 141

In connection with the award of exemplary damages, the Court of Appeals correctly reduced the amount fromP50,000.00 to P30,000.00 in line with current jurisprudence. 50 Finally, pursuant to the ruling of the Court in People v. Villanueva, 51 "when actual damages proven by receipts during the trial amount to less than P25,000, as in this case, the award of temperate damages for P25,000 is justified in lieu of actual damages of a lesser amount. Conversely, if the amount of actual damages proven exceeds P25,000, then temperate damages may no longer be awarded; actual damages based on the receipts presented during trial should instead be granted." As a result, the Court of Appeals likewise correctly held that, since the receipted expenses of Joseph's family amounted to only P14,300.00, temperate damages in the amount of P25,000.00 in lieu of actual damages should be awarded. WHEREFORE, the appeal is hereby DENIED. The Decision of the Court of Appeals dated 28 February 2011 in CA-G.R. CR-HC No. 04113, finding appellants Ronald, Randy and Rolando, all surnamed Credo, guilty beyond reasonable doubt of murder is AFFIRMED with the MODIFICATION that the award of moral damages is reduced from P75,000.00 to P50,000.00. The appeal with respect to the deceased appellant Rolando Credo is DISMISSED. SO ORDERED.

9. PEOPLE v. Gonzales ( G.R. No. 195534, June 13, 2012) We review the judgment of conviction for murder of Eduardo Gonzales (appellant) in the decision dated July 28, 2010 of the Court of Appeals [1] (CA) in CA-G.R. CR-H.C. No. 03840. The CA affirmed the decision[2] dated January 5, 2009 of the Regional Trial Court (RTC), Branch 57, San Carlos City, Pangasinan, in Criminal Case No. 2814 whose decretal portion reads: WHEREFORE, in light of all the foregoing, this Court finds accused EDUARDO GONZALES, having failed to prove by clear and convincing evidence that his act was justified, GUILTY of the crime of Murder and hereby sentences him to suffer the penalty of reclusion perpetua. Accused Eduardo Gonzales is directed to pay the heirs of the victim Eligio Donato the sum of P20,000.00 as actual damages; P50,000.00 as civil indemnity and P50,000.00 as moral damages. [3] (italics ours)

The Facts The appellant and his brother, co-accused Edmundo Gonzales, [4] were charged with murder under a criminal information which alleged conspiracy, evident premeditation and treachery in the killing of Eligio Donato (victim).

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The records[5] show that the victim went to the house of the appellant at the invitation of Edmundo. When the victim arrived, he was met by the appellant who was armed with a .22 caliber firearm. The appellant and Edmundo immediately fired at the victim six (6) times, hitting him three (3) times - in the arm, in his left thigh and in his left chest. [6] The victim expired before he could receive medical treatment. The appellant denied the charge and claimed that he had acted in self-defense. He narrated that he was at his house watching television when the victim suddenly arrived, armed with a short firearm. The victim shouted invectives at the appellant and threatened to kill him. When efforts by the appellant to pacify the victim proved to be futile, the appellant retrieved his own firearm inside his house. A struggle for the possession of the appellants firearm then ensued between the appellant and the victim which caused the appellants gun to discharge three times; thus, hitting the victim. The RTC found the prosecutions version more consistent with the physical findings that the victim was not shot at close range, in the absence of powder burns on his skin. [7] The RTC rejected the appellants self-defense theory in the absence of evidence of unlawful aggression. The RTC ruled that the appellant was guilty of murder, qualified by treachery and evident premeditation, given the manner and the means employed in attacking the unsuspecting victim, leaving him no time or opportunity to resist.[8] In due course, the appellant appealed his judgment of conviction with the CA, contending that the RTC committed reversible errors in the appreciation of the evidence, namely: (1) in giving weight and credence to the highly inconsistent and questionable testimony of the prosecution eyewitness; (2) in disregarding the justifying circumstance of self-defense; and (3) in finding that the qualifying circumstances of treachery and evident premeditation attended the killing. The CA rejected the appellants arguments and affirmed the RTCs decision holding that the prosecution eyewitness of the shooting was straightforward, categorical and without any established ill-motive. The CA also held that the eyewitness testimony was compatible with the physical evidence showing that the appellant, not the victim, started the attack. The CA agreed with the RTC that the killing was qualified by treachery since the attack was executed in a manner that rendered the victim defenseless and unable to retaliate. [9] The CA did not rule on whether evident premeditation was present in the victims killing.

The Issue Page 72 of 141

On the basis of the same arguments raised before the CA, the appellant questions the sufficiency of the evidence proving his guilt beyond reasonable doubt. The Courts Ruling We find no reversible error in the CAs decision and affirm the appellants conviction for murder. The Claim of Self-Defense Self-defense as a justifying circumstance under Article 11 of the Revised Penal Code, as amended, implies the ission by the accused that he committed the acts which would have been criminal in character had it not been for the presence of circumstances whose legal consequences negate the commission of a crime. By invoking self-defense in this case, the appellant itted that he shot the victim. With this ission, the burden of evidence shifted to the appellant to prove that he acted in accordance with the law. The appellant, in this regard, must satisfactorily prove the concurrence of the following requisites under the second paragraph of Article 11 of the Revised Penal Code, as amended, to relieve him of any criminal liability: First, unlawful aggression; Second, reasonable necessity of the means employed to prevent or repel it; Third, lack of sufficient provocation on the part of the person defending. We find that the appellant failed to discharge this burden. (a) Unlawful aggression The existence of unlawful aggression is the basic requirement in a plea of self-defense. [10] In other words, no self-defense can exist without unlawful aggression since there is no attack that the accused will have to prevent or repel.[11] In People v. Dolorido,[12] we held that unlawful aggression presupposes actual, sudden, unexpected or imminent danger not merely threatening and intimidating action. It is present only when the one attacked faces real and immediate threat to ones life. The unlawful aggression may constitute an actual physical assault, or at least a threat to inflict real imminent injury upon the accused.[13] In case of a threat, it must be offensive and strong, positively showing the x x x intent to cause injury. [14] In this case, the requisite of unlawful aggression on the part of the victim is patently absent. The records fail to disclose any circumstance showing that the appellants life was in danger when he met the victim. What the evidence shows is that the victim was unarmed when he went to the Page 73 of 141

house of the appellant. Likewise, there was also no evidence proving the gravity of the utterances and the actuations allegedly made by the victim that would have indicated his wrongful intent to injure the appellant. We note that the appellants claim of self-defense was even disproved by the narration of his own witness, Teofilo Posadas, who came into the scene to witness the ongoing attack by the appellant on the victim. As Posadas testified: Q Mr. Witness, how did you know Mr. Witness that it was Eligio Donato shouting at Eduardo Gonzales Anggapo lay Balam [You have no more bullet]? A When Eduardo fired his gun in the air twice, maam. Q Which came first Mr. Witness, Eduardo Gonzales firing his gun in the air twice or Eligio Donato shouting at Eduardo Gonzales Anggapo lay Balam? A The firing in the air, maam. xxxx Q By the way Mr. Witness, you mentioned a while ago that Eduardo Gonzales fired his gun in the air twice, did you notice what kind of gun did (sic) Eduardo Gonzales used [in] firing two gunshot or two shots in the air? A [.]22 caliber long barrel, maam. Q And how did you know that Eduardo Gonzales fired a [.]22 caliber gun or a long barrel gun? A I saw that gun before while he was using it in targeting fish and birds, maam. Q So Mr. Witness did Eligio Donato and Eduardo Gonzales get near each other? A Yes, maam. Q What did they do when they got close [to] each other, Mr. Witness? A They scuffled over the possession of the gun, maam. xxxx Q When they were scuffling over the possession of the gun, what happened Mr. Witness? A The gun fired, maam. xxxx Q How many gun burst did you hear Mr. Witness? A Two (2) or more, maam. Q After you heard two (2) or more gun burst Mr. Witness, what happened to Eligio [Donato], if any? A He fell down, maam.[15]

Page 74 of 141

The testimony of Posadas reveals that: first, the appellant who was armed met the victim; second, while at a distance, the appellant fired twice at the victims direction;and third, the appellant fired at the victim when the latter tried to take away his firearm. Posadas testimony, taken together with the testimony of prosecution eyewitness Eduardo Rodriguez,[16] provides a clear picture on how the unlawful aggression was initiated by the appellant, not by the victim. The unlawful aggression started when the appellant immediately fired at the victim as the latter alighted from a tricycle and continued when the appellant fired at the victim six (6) times. The assault ended when the appellant fired at the victim when the latter tried to take away his firearm. More importantly, Posadas testimony was even corroborated by the physical evidence that should clearly defeat the claim of unlawful aggression on the part of the victim, in that: first, it was only the victim who was wounded in the assault; and second, the physical evidence showed that the victim had three (3) gunshot wounds thereby indicating that he had already been shot by the appellant when he tried to gain possession of the appellants firearm. (b) Reasonable necessity of the means employed to prevent or repel the victims attack The second requisite of self-defense could not have been present in the absence of any unlawful aggression on the part of the victim. However, even granting that it was the unarmed victim who first acted as the aggressor, we find that the means employed by the appellant in repelling the attack - the use of a firearm, the number of times he fired at the victim and the number of gunshot wounds sustained by the victim - were not reasonably necessary. On the contrary, we find that the number of gunshot wounds reveals a clear intent to kill, not merely to repel the attack of the unarmed victim. (c) Lack of sufficient provocation on the part of the appellant The records disclose that the struggle between the victim and the appellant occurred after the appellant fired at the victim. In other words, the third requisite was not established given the sufficient provocation by the appellant in placing the victims life in actual danger. Thus, any aggression made by the victim cannot be considered unlawful as it was made as an act of selfpreservation to defend his life. In addition to the above considerations, the appellants claim of self-defense was also belied by his own conduct after the shooting. The records show that the appellant went into hiding after he was criminally charged.[17] He also stayed in hiding for four (4) years and could have continued Page 75 of 141

doing so had it not been for his arrest. [18] Self-defense loses its credibility given the appellants flight from the crime scene and his failure to inform the authorities about the incident. [19]

Credible Eyewitness Testimony As the appellant failed to prove that he had acted in self-defense, he effectively itted to the unlawful shooting and the unlawful killing of the victim. Accordingly, we no longer need to examine the issue relating to the credibility of the prosecution witness testimony. We reiterate, however, that the findings of the trial court on matters relating to the credibility of the witnesses and their testimonies will not be disturbed on appeal unless some weight and serious facts or circumstances have been overlooked, misapprehended or misinterpreted so as to materially affect the disposition of the case.[20] Under the circumstances, we find no compelling reason to deviate from this rule. The Nature of the Killing Article 248 of the Revised Penal Code, as amended, provides that [a]ny person who, not falling within the provisions of Article 246, shall kill another, shall be guilty ofmurder and shall be punished by reclusion perpetua, to death if committed with x x x treachery. Both the RTC and the CA ruled that the crime committed was murder, taking into the presence of the qualifying circumstance of treachery. The CA held: As established on record and as found by the trial court, the victim lost that opportunity to defend himself because of x x x appellants unexpected attack. [The victim], who was then unarmed, was alighting a tricycle when x x x appellant suddenly shot him. Such swiftness of the attack even made it physically impossible for [the victim] to run for his safety. Clearly, the killing of [the victim] was attended by treachery which qualifies the crime to murder.[21] (emphases supplied)

We agree with the CAs findings. There is treachery (alevosia) when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to ensure its execution, without risk to himself arising from the defense which the offended party might make. [22]The two elements that must be proven to establish treachery are: (a) the employment of means of execution which would ensure the safety of the offender from defensive and retaliatory acts of the victim, giving the victim no opportunity to defend himself; and (b) the means, method and manner of execution were

Page 76 of 141

deliberately and consciously adopted by the offender. [23] The two elements are present in this case. The first element was established by the prosecution eyewitness testimony showing the sudden attack by the appellant on the unsuspecting victim who had just alighted from a tricycle. The victim was then unarmed and had no opportunity to defend himself. The second element was established by the prosecution eyewitness testimony showing that the appellant deliberately and consciously adopted a pre-conceived plan on how to kill the victim. The evidence showed that the unsuspecting victim was first lured in going to the house of the appellant by Edmundo. The appellant who was armed waited for the arrival of the victim. Afterwards, the appellant immediately fired at the victim.

The Penalty and the Civil Liability The CA correctly imposed the penalty of reclusion perpetua there being no mitigating or aggravating circumstances established.[24] We find that the prosecution failed to establish that the aggravating circumstance of evident premeditation was present in the case. The prosecution failed to prove the concurrence of the following requisites to establish evident premeditation: (1) the time when the offender was determined to commit the crime; (2) an act manifestly indicating that the offender clung to his determination; and (3) a sufficient interval of time between the determination and the execution of the crime to allow him to reflect upon the consequences of his act. The prosecution failed to prove how and when the plan to kill the victim was planned and determined.[25] With respect to damages, the CA correctly awarded the amounts of P50,000.00 as civil indemnity and P50,000.00 as moral damages, they being consistent with prevailing jurisprudence. [26]

In People of the Philippines v. David Maningding, [27] we ruled that when the circumstances

surrounding the crime call for the imposition of reclusion perpetua only, the proper amounts should be P 50,000.00 as civil indemnity and P 50,000.00 as moral damages. However, we modify the CAs decision on the other awards of damages. In accordance with current jurisprudence, we delete the award of P20,000 as actual damages and, in its stead, award P30,000.00 as temperate damages. [28] We also award the heirs of the victim compensatory damages for the loss of the victims earning capacity, there being testimonial and documentary evidence on record to the award. [29] The wife of the victim Page 77 of 141

testified that the victim was 36 years old and was a soldier receiving a monthly salary of more than P9,000.00. The victims pay slip was also presented, showing his earnings of P9,576.00 a month.[30] The award of compensatory damages for loss of earning capacity is computed using the following formula: Net earning capacity (x)

= life expectancy x gross annual income -living expenses (50% of gross annual income) [31]

Under this formula, we award to the heirs of the victim the amount of P1,685,184.48 as compensatory damages for the victims loss of earning capacity, calculated as follows: x

=

2(80-36) x [P 114,912.00 57,456.00] 3

=

29.33 x P 57,456.00

=

P 1,685,184.48

Finally, we also award P30,000.00 as exemplary damages, in accordance with prevailing jurisprudence, since the killing was attended by treachery. [32] WHEREFORE,

premises

considered,

we DISMISS the

appeal

and AFFIRM

with

MODIFICATION the decision dated July 28, 2010 of the Court of Appeals in CA-G.R. CR-H.C. No. 03840. Appellant Eduardo Gonzales is found guilty of murder, penalized under Article 248 of the Revised Penal Code, as amended. He is hereby ordered to pay the heirs of Eligio Donato the following sums: 1)

P50,000.00 as civil indemnity;

2)

P1,685,184.48 as compensatory damages for loss of earning capacity;

3)

P30,000.00 as temperate damages in lieu of actual damages;

4)

P50,000.00 as moral damages; and

5)

P30,000.00 as exemplary damages.

10.TY v. PEOPLE[G.R. No. 149275. September 27, 2004] TINGA, J.: Petitioner Vicky C. Ty (Ty) filed the instant Petition for Review under Rule 45, seeking to set aside the Decision[1] of the Court of Appeals Eighth Division in CA-G.R. CR No. 20995, promulgated on 31 July 2001. The Decision affirmed with modification the judgment of the Page 78 of 141

Regional Trial Court (RTC) of Manila, Branch 19, dated 21 April 1997, finding her guilty of seven (7) counts of violation of Batas Pambansa Blg. 22[2] (B.P. 22), otherwise known as the Bouncing Checks Law. This case stemmed from the filing of seven (7) Informations for violation of B.P. 22 against Ty before the RTC of Manila. The Informations were docketed as Criminal Cases No. 93-130459 to No. 93-130465. The accusatory portion of the Information in Criminal Case No. 93-130465 reads as follows: That on or about May 30, 1993, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously make or draw and issue to Manila Doctors Hospital to apply on or for value to Editha L. Vecino Check No. Metrobank 487712 dated May 30, 1993 payable to Manila Doctors Hospital in the amount of P30,000.00, said accused well knowing that at the time of issue she did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check when presented for payment within ninety (90) days from the date hereof, was subsequently dishonored by the drawee bank for Closed and despite receipt of notice of such dishonor, said accused failed to pay said Manila Doctors Hospital the amount of the check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. Contrary to law.[3] The other Informations are similarly worded except for the number of the checks and dates of issue. The data are hereunder itemized as follows: Criminal Case No. Check No. Postdated Amount 93-130459 487710 30 March 1993 30,000.00 93-130460 487711 30 April 1993 P30,000.00 93-130461 487709 01 March 1993 P30,000.00 93-130462 487707 30 December 1992 P30,000.00 93-130463 487706 30 November 1992 P30,000.00 93-130464 487708 30 January 1993 P30,000.00 93-130465 487712 30 May 1993 P30,000.00[4] The cases were consolidated and tly tried. At her arraignment, Ty pleaded not guilty. [5] The evidence for the prosecution shows that Tys mother Chua Lao So Un was confined at the Manila Doctors Hospital (hospital) from 30 October 1990 until 4 June 1992.Being the patients daughter, Ty signed the Acknowledgment of Responsibility for Payment in the Contract of ission dated 30 October 1990.[6] As of 4 June 1992, the Statement of [7] shows the Page 79 of 141

total liability of the mother in the amount of P657,182.40. Tys sister, Judy Chua, was also confined at the hospital from 13 May 1991 until 2 May 1992, incurring hospital bills in the amount of P418,410.55.[8] The total hospital bills of the two patients amounted to P1,075,592.95. On 5 June 1992, Ty executed a promissory note wherein she assumed payment of the obligation in installments.[9] To assure payment of the obligation, she drew several postdated checks against Metrobank payable to the hospital. The seven (7) checks, each covering the amount of P30,000.00, were all deposited on their due dates. But they were all dishonored by the drawee bank and returned unpaid to the hospital due to insufficiency of funds, with the Closed advice. Soon thereafter, the complainant hospital sent demand letters to Ty by ed mail. As the demand letters were not heeded, complainant filed the seven (7) Informations subject of the instant case.[10] For her defense, Ty claimed that she issued the checks because of an uncontrollable fear of a greater injury. She averred that she was forced to issue the checks to obtain release for her mother whom the hospital inhumanely and harshly treated and would not discharge unless the hospital bills are paid. She alleged that her mother was deprived of room facilities, such as the air-condition unit, refrigerator and television set, and subject to inconveniences such as the cutting off of the telephone line, late delivery of her mothers food and refusal to change the latters gown and bedsheets. She also bewailed the hospitals suspending medical treatment of her mother. The debasing treatment, she pointed out, so affected her mothers mental, psychological and physical health that the latter contemplated suicide if she would not be discharged from the hospital. Fearing the worst for her mother, and to comply with the demands of the hospital, Ty was compelled to sign a promissory note, open an with Metrobank and issue the checks to effect her mothers immediate discharge. [11] Giving full faith and credence to the evidence offered by the prosecution, the trial court found that Ty issued the checks subject of the case in payment of the hospital bills of her mother and rejected the theory of the defense. [12] Thus, on 21 April 1997, the trial court rendered a Decision finding Ty guilty of seven (7) counts of violation of B.P. 22 and sentencing her to a prison term. The dispositive part of the Decision reads: CONSEQUENTLY, the accused Vicky C. Ty, for her acts of issuing seven (7) checks in payment of a valid obligation, which turned unfounded on their respective dates of maturity, is found guilty of seven (7) counts of violations of Batas Pambansa Blg. 22, and is hereby sentenced to suffer the penalty of imprisonment of SIX MONTHS per count or a total of forty-two (42) months. SO ORDERED.[13] Ty interposed an appeal from the Decision of the trial court. Before the Court of Appeals, Ty reiterated her defense that she issued the checks under the impulse of an uncontrollable fear of a greater injury or in avoidance of a greater evil or injury. She also argued that the trial court erred in finding her guilty when evidence showed there was absence of valuable consideration for the issuance of the checks and the payee had knowledge of the insufficiency of funds in the . She protested that the trial court should not have applied the law mechanically, without due regard to the principles of justice and equity. [14]

Page 80 of 141

In its Decision dated 31 July 2001, the appellate court affirmed the judgment of the trial court with modification. It set aside the penalty of imprisonment and instead sentenced Ty to pay a fine of sixty thousand pesos (P60,000.00) equivalent to double the amount of the check, in each case.[15] In its assailed Decision, the Court of Appeals rejected Tys defenses of involuntariness in the issuance of the checks and the hospitals knowledge of her checking s lack of funds. It held that B.P. 22 makes the mere act of issuing a worthless check punishable as a special offense, it being a malum prohibitum. What the law punishes is the issuance of a bouncing check and not the purpose for which it was issued nor the and conditions relating to its issuance. [16]

Neither was the Court of Appeals convinced that there was no valuable consideration for the issuance of the checks as they were issued in payment of the hospital bills of Tys mother. [17] In sentencing Ty to pay a fine instead of a prison term, the appellate court applied the case of Vaca v. Court of Appeals[18] wherein this Court declared that in determining the penalty imposed for violation of B.P. 22, the philosophy underlying the Indeterminate Sentence Law should be observed, i.e., redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness, with due regard to the protection of the social order.[19] Petitioner now comes to this Court basically alleging the same issues raised before the Court of Appeals. More specifically, she ascribed errors to the appellate court based on the following grounds: A. THERE IS CLEAR AND CONVINCING EVIDENCE THAT PETITIONER WAS FORCED TO OR COMPELLED IN THE OPENING OF THE AND THE ISSUANCE OF THE SUBJECT CHECKS. B. THE CHECKS WERE ISSUED UNDER THE IMPULSE OF AN UNCONTROLLABLE FEAR OF A GREATER INJURY OR IN AVOIDANCE OF A GREATER EVIL OR INJURY. C. THE EVIDENCE ON RECORD PATENTLY SHOW[S] ABSENCE CONSIDERATION IN THE ISSUANCE OFTHE SUBJECT CHECKS.

OF

VALUABLE

D. IT IS AN UNDISPUTED FACT THAT THE PAYEE OF THE CHECKS WAS FULLY AWARE OF THE LACK OF FUNDS IN THE . E. THE HONORABLE COURT OF APPEALS, AS WELL AS THE HONORABLE TRIAL COURT [,] SHOULD NOT HAVE APPLIED CRIMINAL LAW MECHANICALLY, WITHOUT DUE REGARD TO THE PRINCIPLES OF JUSTICE AND EQUITY. In its Memorandum,[20] the Office of the Solicitor General (OSG), citing jurisprudence, contends that a check issued as an evidence of debt, though not intended to be presented for payment, has the same effect as an ordinary check; hence, it falls within the ambit of B.P. 22. And when a check is presented for payment, the drawee bank will generally accept the same, Page 81 of 141

regardless of whether it was issued in payment of an obligation or merely to guarantee said obligation. What the law punishes is the issuance of a bouncing check, not the purpose for which it was issued nor the and conditions relating to its issuance. The mere act of issuing a worthless check is malum prohibitum.[21] We find the petition to be without merit and accordingly sustain Tys conviction. Well-settled is the rule that the factual findings and conclusions of the trial court and the Court of Appeals are entitled to great weight and respect, and will not be disturbed on appeal in the absence of any clear showing that the trial court overlooked certain facts or circumstances which would substantially affect the disposition of the case. [22] Jurisdiction of this Court over cases elevated from the Court of Appeals is limited to reviewing or revising errors of law ascribed to the Court of Appeals whose factual findings are conclusive, and carry even more weight when said court affirms the findings of the trial court, absent any showing that the findings are totally devoid of in the record or that they are so glaringly erroneous as to constitute serious abuse of discretion.[23] In the instant case, the Court discerns no compelling reason to reverse the factual findings arrived at by the trial court and affirmed by the Court of Appeals. Ty does not deny having issued the seven (7) checks subject of this case. She, however, claims that the issuance of the checks was under the impulse of an uncontrollable fear of a greater injury or in avoidance of a greater evil or injury. She would also have the Court believe that there was no valuable consideration in the issuance of the checks. However, except for the defenses claim of uncontrollable fear of a greater injury or avoidance of a greater evil or injury, all the grounds raised involve factual issues which are best determined by the trial court. And, as previously intimated, the trial court had in fact discarded the theory of the defense and rendered judgment accordingly. Moreover, these arguments are a mere rehash of arguments unsuccessfully raised before the trial court and the Court of Appeals. They likewise put to issue factual questions already ed upon twice below, rather than questions of law appropriate for review under a Rule 45 petition. The only question of law raisedwhether the defense of uncontrollable fear is tenable to warrant her exemption from criminal liabilityhas to be resolved in the negative. For this exempting circumstance to be invoked successfully, the following requisites must concur: (1) existence of an uncontrollable fear; (2) the fear must be real and imminent; and (3) the fear of an injury is greater than or at least equal to that committed. [24] It must appear that the threat that caused the uncontrollable fear is of such gravity and imminence that the ordinary man would have succumbed to it. [25] It should be based on a real, imminent or reasonable fear for ones life or limb. [26] A mere threat of a future injury is not enough. It should not be speculative, fanciful, or remote. [27] A person invoking uncontrollable fear must show therefore that the compulsion was such that it reduced him to a mere instrument acting not only without will but against his will as well. [28] It must be of such character as to leave no opportunity to the accused for escape.[29] Page 82 of 141

In this case, far from it, the fear, if any, harbored by Ty was not real and imminent. Ty claims that she was compelled to issue the checksa condition the hospital allegedly demanded of her before her mother could be dischargedfor fear that her mothers health might deteriorate further due to the inhumane treatment of the hospital or worse, her mother might commit suicide. This is speculative fear; it is not the uncontrollable fear contemplated by law. To begin with, there was no showing that the mothers illness was so life-threatening such that her continued stay in the hospital suffering all its alleged unethical treatment would induce a well-grounded apprehension of her death. Secondly, it is not the laws intent to say that any fear exempts one from criminal liability much less petitioners flimsy fear that her mother might commit suicide. In other words, the fear she invokes was not impending or insuperable as to deprive her of all volition and to make her a mere instrument without will, moved exclusively by the hospitals threats or demands. Ty has also failed to convince the Court that she was left with no choice but to commit a crime. She did not take advantage of the many opportunities available to her to avoid committing one. By her very own words, she itted that the collateral or security the hospital required prior to the discharge of her mother may be in the form of postdated checks or jewelry. [30] And if indeed she was coerced to open an with the bank and issue the checks, she had all the opportunity to leave the scene to avoid involvement. Moreover, petitioner had sufficient knowledge that the issuance of checks without funds may result in a violation of B.P. 22. She even testified that her counsel advised her not to open a current nor issue postdated checks because the moment I will not have funds it will be a big problem.[31] Besides, apart from petitioners bare assertion, the record is bereft of any evidence to corroborate and bolster her claim that she was compelled or coerced to cooperate with and give in to the hospitals demands. Ty likewise suggests in the prefatory statement of her Petition and Memorandum that the justifying circumstance of state of necessity under par. 4, Art. 11 of the Revised Penal Code may find application in this case. We do not agree. The law prescribes the presence of three requisites to exempt the actor from liability under this paragraph: (1) that the evil sought to be avoided actually exists; (2) that the injury feared be greater than the one done to avoid it; (3) that there be no other practical and less harmful means of preventing it.[32] In the instant case, the evil sought to be avoided is merely expected or anticipated. If the evil sought to be avoided is merely expected or anticipated or may happen in the future, this defense is not applicable.[33] Ty could have taken advantage of an available option to avoid committing a crime. By her own ission, she had the choice to give jewelry or other forms of security instead of postdated checks to secure her obligation. Moreover, for the defense of state of necessity to be availing, the greater injury feared should not have been brought about by the negligence or imprudence, more so, the willful inaction of the actor.[34] In this case, the issuance of the bounced checks was brought about by Tys own failure to pay her mothers hospital bills. Page 83 of 141

The Court also thinks it rather odd that Ty has chosen the exempting circumstance of uncontrollable fear and the justifying circumstance of state of necessity to absolve her of liability. It would not have been half as bizarre had Ty been able to prove that the issuance of the bounced checks was done without her full volition. Under the circumstances, however, it is quite clear that neither uncontrollable fear nor avoidance of a greater evil or injury prompted the issuance of the bounced checks. Parenthetically, the findings of fact in the Decision of the trial court in the Civil Case[35] for damages filed by Tys mother against the hospital is wholly irrelevant for purposes of disposing the case at bench. While the findings therein may establish a claim for damages which, we may add, need only be ed by a preponderance of evidence, it does not necessarily engender reasonable doubt as to free Ty from liability. As to the issue of consideration, it is presumed, upon issuance of the checks, in the absence of evidence to the contrary, that the same was issued for valuable consideration. [36] Section 24[37] of the Negotiable Instruments Law creates a presumption that every party to an instrument acquired the same for a consideration [38] or for value.[39] In alleging otherwise, Ty has the onus to prove that the checks were issued without consideration. She must present convincing evidence to overthrow the presumption. A scrutiny of the records reveals that petitioner failed to discharge her burden of proof. Valuable consideration may in general , be said to consist either in some right, interest, profit, or benefit accruing to the party who makes the contract, or some forbearance, detriment, loss or some responsibility, to act, or labor, or service given, suffered or undertaken by the other aide. Simply defined, valuable consideration means an obligation to give, to do, or not to do in favor of the party who makes the contract, such as the maker or indorser. [40] In this case, Tys mother and sister availed of the services and the facilities of the hospital. For the care given to her kin, Ty had a legitimate obligation to pay the hospital by virtue of her relationship with them and by force of her signature on her mothers Contract of ission acknowledging responsibility for payment, and on the promissory note she executed in favor of the hospital. Anent Tys claim that the obligation to pay the hospital bills was not her personal obligation because she was not the patient, and therefore there was no consideration for the checks, the case of Bridges v. Vann, et al.[41] tells us that it is no defense to an action on a promissory note for the maker to say that there was no consideration which was beneficial to him personally; it is sufficient if the consideration was a benefit conferred upon a third person, or a detriment suffered by the promisee, at the instance of the promissor.It is enough if the obligee foregoes some right or privilege or suffers some detriment and the release and extinguishment of the original obligation of George Vann, Sr., for that of appellants meets the requirement. Appellee accepted one debtor in place of another and gave up a valid, subsisting obligation for the note executed by the appellants. This, of itself, is sufficient consideration for the new notes. At any rate, the law punishes the mere act of issuing a bouncing check, not the purpose for which it was issued nor the and conditions relating to its issuance. [42] B.P. 22 does not make any distinction as to whether the checks within its contemplation are issued in payment of an Page 84 of 141

obligation or to merely guarantee the obligation. [43] The thrust of the law is to prohibit the making of worthless checks and putting them into circulation. [44] As this Court held in Lim v. People of the Philippines,[45] what is primordial is that such issued checks were worthless and the fact of its worthlessness is known to the appellant at the time of their issuance, a required element under B.P. Blg. 22. The law itself creates a prima facie presumption funds. Section 2 of B.P. 22 provides:

of knowledge

of

insufficiency of

Section 2. Evidence of knowledge of insufficient funds. - The making, drawing and issuance of a check payment of which is refused by the drawee bank because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. Such knowledge is legally presumed from the dishonor of the checks for insufficiency of funds.[46] If not rebutted, it suffices to sustain a conviction. [47] Petitioner likewise opines that the payee was aware of the fact that she did not have sufficient funds with the drawee bank and such knowledge necessarily exonerates her liability. The knowledge of the payee of the insufficiency or lack of funds of the drawer with the drawee bank is immaterial as deceit is not an essential element of an offense penalized by B.P. 22. The gravamen of the offense is the issuance of a bad check, hence, malice and intent in the issuance thereof is inconsequential.[48] In addition, Ty invokes our ruling in Magno v. Court of Appeals[49] wherein this Court inquired into the true nature of transaction between the drawer and the payee and finally acquitted the accused, to persuade the Court that the circumstances surrounding her case deserve special attention and do not warrant a strict and mechanical application of the law. Petitioners reliance on the case is misplaced. The material operative facts therein obtaining are different from those established in the instant petition. In the 1992 case, the bounced checks were issued to cover a warranty deposit in a lease contract, where the lessor-supplier was also the financier of the deposit. It was a modus operandi whereby the supplier was able to sell or lease the goods while privately financing those in desperate need so they may be accommodated. The maker of the check thus became an unwilling victim of a lease agreement under the guise of a lease-purchase agreement. The maker did not benefit at all from the deposit, since the checks were used as collateral for an accommodation and not to cover the receipt of an actual or credit for value. In the case at bar, the checks were issued to cover the receipt of an actual or for value. Substantial evidence, as found by the trial court and Court of Appeals, has established that the checks were issued in payment of the hospital bills of Tys mother. Page 85 of 141

Finally, we agree with the Court of Appeals in deleting the penalty of imprisonment, absent any proof that petitioner was not a first-time offender nor that she acted in bad faith.istrative Circular 12-2000,[50] adopting the rulings in Vaca v. Court of Appeals[51] and Lim v. People,[52] authorizes the non-imposition of the penalty of imprisonment in B.P. 22 cases subject to certain conditions. However, the Court resolves to modify the penalty in view of istrative Circular 13-2001[53] which clarified istrative 12-2000. It is stated therein: The clear tenor and intention of istrative Circular No. 12-2000 is not to remove imprisonment as an alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in B.P. Blg. 22. Thus, istrative Circular 12-2000 establishes a rule of preference in the application of the penal provisions of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. Needless to say, the determination of whether circumstances warrant the imposition of a fine alone rests solely upon the Judge. Should the judge decide that imprisonment is the more appropriate penalty, istrative Circular No. 12-2000 ought not be deemed a hindrance. It is therefore understood that: (1) istrative Circular 12-2000 does not remove imprisonment as an alternative penalty for violations of B.P. 22; (2) the judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice, or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice; (3) should only a fine be imposed and the accused unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment. [54] WHEREFORE, the instant Petition is DENIED and the assailed Decision of the Court of Appeals, dated 31 July 2001, finding petitioner Vicky C. Ty GUILTY of violating Batas Pambansa Bilang 22 is AFFIRMED with MODIFICATIONS. Petitioner Vicky C. Ty is ORDERED to pay a FINE equivalent to double the amount of each dishonored check subject of the seven cases at bar with subsidiary imprisonment in case of insolvency in accordance with Article 39 of the Revised Penal Code. She is also ordered to pay private complainant, Manila Doctors Hospital, the amount of Two Hundred Ten Thousand Pesos (P210,000.00) representing the total amount of the dishonored checks. Costs against the petitioner. SO ORDERED.

11.

TABUENA vs. PEOPLE [G.R. No. 103501-03. February 17, 1997]

LUIS A. TABUENA, petitioner, vs. HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, respondents. [G.R. No. 103507. February 17, 1997] Page 86 of 141

ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF THE SPECIAL PROSECUTOR, respondents. DECISION FRANCISCO, J.: Through their separate petitions for review, [1] Luis A. Tabuena and Adolfo M. Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan decision dated October 12, 1990, [2] as well as the Resolution dated December 20, 1991 [3] denying reconsideration, convicting them of malversation under Article 217 of the Revised Penal Code. Tabuena and Peralta were found guilty beyond reasonable doubt of having malversed the total amount of P55 Million of the Manila International Airport Authority (MIAA) funds during their incumbency as General Manager and Acting Finance Services Manager, respectively, of MIAA, and were thus meted the following sentence: (1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum to twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00). In addition, he shall suffer the penalty of perpetual special disqualification from public office. (2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum, and twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00). In addition, he shall suffer the penalty of perpetual special disqualification from public office. (3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum and twenty (20) years of reclusion temporal as maximum and for each of them to pay separately a fine of FIVE MILLION PESOS (P5,000,000.00) the amount malversed.They shall also reimburse tly and severally the Manila International Airport Authority the sum of FIVE MILLION PESOS (P5,000,000.00). In addition, they shall both suffer the penalty of perpetual special disqualification from public office. A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager of MIAA, has remained at large. There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of P55 Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the principal accused - he being charged in all three (3) cases. The amended informations in criminal case nos. 11758, 11759 and 11760 respectively read: That on or about the 10th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Page 87 of 141

Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and able for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash s of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a managers check for said amount in the name of accused Luis A. Tabuena chargeable against MIAAs Savings No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW. xxx That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and able for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash s of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a managers check for said amount in the name of accused Luis A. Tabuena chargeable against MIAAs Savings No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW. xxx That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being then the General Manager and Acting Manager, Financial Services Department, respectively, of the Manila International Airport Authority (MIAA), and able for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash s of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA funds by applying for the issuance of a managers check for said amount in the name of accused Luis A. Tabuena Page 88 of 141

chargeable against MIAAs Savings No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW. Gathered from the documentary and testimonial evidence are the following essential antecedents: Then President Marcos instructed Tabuena over the phone to pay directly to the presidents office and in cash what the MIAA owes the Philippine National Construction Corporation (PNCC), to which Tabuena replied, Yes, sir, I will do it. About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, then private secretary of Marcos, a Presidential Memorandum dated January 8, 1986 (hereinafter referred to as MARCOS Memorandum) reiterating in black and white such verbal instruction, to wit: Office of the President of the Philippines Malacaang January 8, 1986 MEMO TO: The General Manager Manila International Airport Authority You are hereby directed to pay immediately the Philippine National Construction Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAAs with said Company mentioned in a Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985 and duly approved by this Office on February 4, 1985. Your immediate compliance is appreciated. (Sgd.) FERDINAND MARCOS.[4] The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin referred to in the MARCOS Memorandum, reads in full: MEMORANDUM F o r : The President F r o m : Minister Roberto V. Ongpin Page 89 of 141

D a t e : 7 January 1985 Subject : Approval of Supplemental Contracts and Request for Partial Deferment of Repayment of PNCCs Advances for MIA Development Project May I request your approval of the attached recommendations of Minister Jesus S. Hipolito for eight (8) supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National Construction Corporation (PNCC), formerly CD, as follows: 1. Supplemental Contract No. 12 Package Contract No. 2

P11,106,600.95

2. Supplemental Contract No. 13

5,758,961.52

3. Supplemental Contract No. 14 Package Contract No. 2

4,586,610.80

4. Supplemental Contract No. 15

1,699,862.69

5. Supplemental Contract No. 16 Package Contract No. 2

233,561.22

6. Supplemental Contract No. 17 Package Contract No. 2

8,821,731.08

7. Supplemental Contract No. 18 Package Contract No. 2

6,110,115.75

8. Supplemental Contract No. 3 Package Contract No. II

16,617,655.49

(xerox copies only; original memo was submitted to the Office of the President on May 28, 1984) In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly CD, has accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive of accomplishments for the aforecited contracts. In accordance with contract provisions, outstanding advances totalling P93.9 million are to be deducted from said billings which will leave a net amount due to PNCC of only P4.5 million. At the same time, PNCC has potential escalation claims amounting to P99 million in the following stages of approval/evaluation:

Approved by Price Escalation Committee (PEC) but pended for lack of funds

P 1.9 million

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Endorsed by project consultants and currently being evaluated by PEC

30.7 million

Submitted by PNCC directly to PEC and currently under evaluation

66.5 million

Total

P99.1 million

There has been no funding allocation for any of the above escalation claims due to budgetary constraints. The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of money to service its obligations for this contract. To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellencys approval for a deferment of the repayment of PNCCs advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding. Korte Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million. (Sgd.) ROBERTO V. ONGPIN Minister[5] In obedience to President Marcos verbal instruction and memorandum, Tabuena, with the help of Dabao and Peralta, caused the release of P55 Million of MIAA funds by means of three (3) withdrawals. The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date signed by Tabuena and Dabao requesting the PNB extension office at the MIAA - the depository branch of MIAA funds, to issue a managers check for said amount payable to Tabuena. The check was encashed, however, at the PNB Villamor Branch.Dabao and the cashier of the PNB Villamor branch counted the money after which, Tabuena took delivery thereof. The P25 Million in cash were then placed in peerless boxes and duffle bags, loaded on a PNB armored car and delivered on the same day to the office of Mrs. Gimenez located at Aguado Street fronting Malacaang. Mrs. Gimenez did not issue any receipt for the money received. Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25 Million, made on January 16, 1986. The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuenas co-signatory to the letter- request for a managers check for this amount.Peralta accompanied Tabuena to the PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million. After the counting, the money was placed in two (2) peerless boxes which were loaded in the trunk of Tabuenas car. Peralta did not go with Tabuena to deliver the money to Mrs. Page 91 of 141

Gimenez office at Aguado Street. It was only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all the amounts she received from Tabuena. The receipt, dated January 30, 1986, reads: Malacaang Manila January 30, 1986 RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS (P55,000,000.00) as of the following dates: Jan. 10 - P25,000,000.00 Jan. 16 - 25,000,000.00 Jan. 30 - 5,000,000.00 (Sgd.) Fe Roa-Gimenez The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, out of the ordinary and not based on the normal procedure. Not only were there no vouchers prepared to the disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for the P55 Million was presented. Defense witness Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC by MIAA for the months of January to June of 1986. The position of the prosecution was that there were no outstanding obligations in favor of PNCC at the time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena and Peralta, in short, was that they acted in good faith. Tabuena claimed that he was merely complying with the MARCOS Memorandum which ordered him to forward immediately to the Office of the President P55 Million in cash as partial payment of MIAAs obligations to PNCC, and that he (Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared the same belief and so he heeded the request of Tabuena, his superior, for him (Peralta) to help in the release of P5 Million. With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their conviction, Tabuena and Peralta now set forth a total of ten (10) errors [6]committed by the Sandiganbayan for this Courts consideration. It appears, however, that at the core of their plea that we acquit them are the following: 1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and 2) they acted in good faith. Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional malversation, as the amended informations commonly allege that: x x x accused x x x conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriated the amount of x x x. Page 92 of 141

But it would appear that they were convicted of malversation by negligence. In this connection, the Courts attention is directed to p. 17 of the December 20, 1991 Resolution (denying Tabuenas and Peraltas motion for reconsideration) wherein the Sandiganbayan said: xxxxxxxxx On the contrary, what the evidence shows is that accused Tabuena delivered the P55 Million to people who were not entitled thereto, either as representatives of MIAA or of the PNCC. Sclaw It proves that Tabuena had deliberately consented or permitted through negligence or abandonment, some other person to take such public funds. Having done so, Tabuena, by his own narration, has categorically demonstrated that he is guilty of the misappropriation or malversation of P55 Million of public funds. (Underscoring supplied.) To their theory that such variance is a reversible flaw, Tabuena and Peralta argue that: 1) While malversation may be committed intentionally or by negligence, both modes cannot be committed at the same time. 2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where the amended informations charged them with intentional malversation. [7] 3) Their conviction of a crime different from that charged violated their constitutional right to be informed of the accusation.[8] We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is Cabello v. Sandiganbayan[9] where the Court ed upon similar protestations raised by therein accused-petitioner Cabello whose conviction for the same crime of malversation was affirmed, in this wise: x x x even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof is proper. x x x. In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or intentional falsification can validly be convicted of falsification through negligence, thus: While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs. Justice of the Peace of Bacolor, G.R. No. L-6641, July 28, 1995, but a distinct crime in our Penal Code, designated as a quasi offense in our Penal Code, it may however be said that a conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the situation that obtains in the present case. Appellant was charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the information alleges acts which charge willful falsification but which turned out to be not willful but negligent. This is a Page 93 of 141

case covered by the rule when there is a variance between the allegation and proof, and is similar to some of the cases decided by this Tribunal. xxx Moreover, Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of the offense charged in the information be proved, it being sufficient that some of said essential elements or ingredients thereof be established to constitute the crime proved. x x x. The fact that the information does not allege that the falsification was committed with imprudence is of no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it would be incongruous to allege at the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept of negligence. Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale and arguments also apply to the felony of malversation, that is, that an accused charged with willful malversation, in an information containing allegations similar to those involved in the present case, can be validly convicted of the same offense of malversation through negligence where the evidence sustains the latter mode of perpetrating the offense. Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for malversation for it would negate criminal intent on the part of the accused.Thus, in the two (2) vintage, but significant malversation cases of US v. Catolico[10] and US v. Elvia, [11] the Court stressed that: To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences as, in law, is equivalent to criminal intent. The maxim is actus non facit reum, nisi mens sit rea - a crime is not committed if the mind of the person performing the act complained of is innocent. The rule was reiterated in People v. Pacana,[12] although this case involved falsification of public documents and estafa: Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting. American jurisprudence echoes the same principle. It adheres to the view that criminal intent in embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is no wrongful purpose. [13] The accused may thus always introduce evidence to show he acted in good faith and that he had no intention to convert. [14] And this, to our mind, Tabuena and Peralta had meritoriously shown. In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum, we are swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by reason of such memorandum. From this premise flows the following reasons and/or considerations that would buttress his innocence of the crime of malversation. First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS Memorandum required him to do. He could not be faulted if he had to obey and strictly Page 94 of 141

comply with the presidential directive, and to argue otherwise is something easier said than done. Marcos was undeniably Tabuenas superior the former being then the President of the Republic who unquestionably exercised control over government agencies such as the MIAA and PNCC.[15] In other words, Marcos had a say in matters involving inter-government agency affairs and transactions, such as for instance, directing payment of liability of one entity to another and the manner in which it should be carried out. And as a recipient of such kind of a directive coming from the highest official of the land no less, good faith should be read on Tabuenas compliance, without hesitation nor any question, with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying circumstance of Any person who acts in obedience to an order issued by a superior for some lawful purpose. [16] The subordinate-superior relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government agency (MIAA) to another (PNCC). However, the unlawfulness of the MARCOS Memorandum was being argued, on the observation, for instance, that the Ongpin Memo referred to in the presidential directive reveals a liability of only about P34.5 Million. The Sandiganbayan in this connection said: Exhibits 2 and 2-a (pages 1 and 2 of the memorandum of Min. Ongpin to the President dated January 7, 1985) were mainly: a.) for the approval of eight Supplemental Contracts; and b.) a request for partial deferment of payment by PNCC for advances made for the MIAA Development Project, while at the same time recognizing some of the PNCCs escalation billings which would result in making payable to PNCC the amount of P34.5 million out of existing MIAA Project funds. Thus: xxx To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellencys approval for a deferment of repayment of PNCCs advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.6 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding. Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million. While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion thereof was still in the stages of evaluation and approval, with only P32.6 million having been officially recognized by the MIADP consultants. If any payments were, therefore, due under this memo for Min. Ongpin (upon which President Marcos Memo was based) they would only be for a sum of up to P34.5 million.[17] xxxxxxxxx V. Pres. Marcos order to Tabuena dated January 8, 1986 baseless. Page 95 of 141

Not only was Pres. Marcos Memo (Exhibit 1) for Tabuena to pay P55 million irrelevant, but it was actually baseless. This is easy to see. Exhibit 1 purports to refer itself to the Ongpin Memorandum (Exhibit 2, 2-a); Exhibit 1, however, speaks of P55 million to be paid to the PNCC while Exhibit 2 authorized only P34.5 million. The order to withdraw the amount of P55 million exceeded the approved payment of P34.5 million by P20.5 million. Min. Ongpins Memo of January 7, 1985 could not therefore serve as a basis for the Presidents order to withdraw P55 million.[18] Granting this to be true, it will not nevertheless affect Tabuenas good faith so as to make him criminally liable. What is more significant to consider is that the MARCOS Memorandum is patently legal (for on its face it directs payment of an outstanding liability) and that Tabuena acted under the honest belief that the P55 million was a due and demandable debt and that it was just a portion of a bigger liability to PNCC. This belief is ed by defense witness Francis Monera who, on direct examination, testified that: ATTY ANDRES Q Can you please show us in this Exhibit 7 and 7-a where it is indicated the receivables from MIA as of December 31, 1985? A As of December 31, 1985, the receivables from MIA is shown on page 2, marked as Exhibit 7-a, sir, P102,475,392.35. x x x x x x x x x.[19] ATTY. ANDRES Q Can you tell us, Mr. Witness, what these obligations represent? WITNESS A These obligations represent receivables on the basis of our billings to MIA as contractowner of the project that the Philippine National Construction Corporation constructed. These are billings for escalation mostly, sir. Q What do you mean by escalation? A Escalation is the component of our revenue billings to the contract-owner that are supposed to take care of price increases, sir. x x x x x x x x x.[20] ATTY ANDRES Q When you said these are s receivable, do I understand from you that these are due and demandable? A Yes, sir.[21] Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in good faith.[22] Such is the ruling in Nassif v. People[23] the facts of which, in brief, are as follows: Accused was charged with falsification of commercial document. A mere employee of R.J. Campos, he inserted in the commercial document alleged to have been falsified the word sold by order of his principal. Had he known or suspected that his principal was committing an improper act of falsification, he would be liable either as a co-principal or as an accomplice. However, Page 96 of 141

there being no malice on his part, he was exempted from criminal liability as he was a mere employee following the orders of his principal. [24] Second. There is no denying that the disbursement, which Tabuena itted as out of the ordinary, did not comply with certain auditing rules and regulations such as those pointed out by the Sandiganbayan, to wit: a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00 should be made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by COA) b) payment of all claims against the government had to be ed with complete documentation (Sec. 4, P.D. 1445, State Auditing Code of the Philippines). In this connection, the Sandiganbayan observed that: There were no vouchers to authorize the disbursements in question. There were no bills to the disbursement. There were no certifications as to the availability of funds for an unquestionably staggering sum of P55 Million.[25] c) failure to protest (Sec. 106, P.D. 1445) But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury of time to observe all auditing procedures of disbursement considering the fact that the MARCOS Memorandum ened his immediate compliance with the directive that he forward to the Presidents Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape responsibility for such omission. But since he was acting in good faith, his liability should only be istrative or civil in nature, and not criminal.This follows the decision in Villacorta v. People[26] where the Court, in acquitting therein accused municipal treasurer of Pandan, Catanduanes of malversation after finding that he incurred a shortage in his cash ability by reason of his payment in good faith to certain government personnel of their legitimate wages, leave allowances, etc., held that: Nor can negligence approximating malice or fraud be attributed to petitioner. If he made wrong payments, they were in good faith mainly to government personnel, some of them working at the provincial auditors and the provincial treasurers offices. And if those payments ran counter to auditing rules and regulations, they did not amount to a criminal offense and he should only be held istratively or civilly liable. Likewise controlling is US v. Elvia[27] where it was held that payments in good faith do not amount to criminal appropriation, although they were made with insufficient vouchers or improper evidence. In fact, the Dissenting Opinions reference to certain provisions in the revised Manual on Certificate of Settlement and Balances - apparently made to underscore Tabuenas personal ability, as agency head, for MIAA funds - would all the more the view that Tabuena is vulnerable to civil sanctions only. Sections 29.2 and 29.5 expressly and solely speak of civilly liable to describe the kind of sanction imposable on a superior officer who performs his duties with bad faith, malice or gross negligence and on a subordinate officer or employee who commits willful or negligent acts x x x which are contrary to law, morals, public policy and good customs even if he acted under order or instructions of his superiors. Third. The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC, proceeding from the following definitions/concepts of conversion: Page 97 of 141

Conversion, as necessary element of offense of embezzlement, being the fraudulent appropriation to ones own use of anothers property which does not necessarily mean to ones personal advantage but every attempt by one person to dispose of the goods of another without right as if they were his own is conversion to his own use. (Terry v. Water Improvement Dist. No. 5 of Tulsa County, 64 p. 2d 904, 906, 179 Okl. 106) - At p. 207, Words and Phrases, Permanent Edition 9A. Conversion is any interference subversive of the right of the owner of personal property to enjoy and control it. The gist of conversion is the usurpation of the owners right of property, and not the actual damages inflicted. Honesty of purpose is not a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141) - At page 168, id. xxxxxxxxx The words convert and misappropriate connote an act of using or disposing of anothers property as if it were ones own. They presuppose that the thing has been devoted to a purpose or use different from that agreed upon. To appropriate to ones own use includes not only conversion to ones personal advantage but every attempt to dispose of the property of another without right. People vs. Webber, 57 O.G. p. 2933, 2937 By placing them at the disposal of private persons without due authorization or legal justification, he became as guilty of malversation as if he had personally taken them and converted them to his own use. People vs. Luntao, 50 O.G. p. 1182, 1183[28] We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena to pay immediately the Philippine National Construction Corporation, thru this office, the sum of FIFTY FIVE MILLION...., and that was what Tabuena precisely did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the President inasmuch as Mrs. Gimenez was Marcos secretary then. Furthermore, Tabuena had reasonable ground to believe that the President was entitled to receive the P55 Million since he was certainly aware that Marcos, as Chief Executive, exercised supervision and control over government agencies. And the good faith of Tabuena in having delivered the money to the Presidents office (thru Mrs. Gimenez), in strict compliance with the MARCOS Memorandum, was not at all affected even if it later turned out that PNCC never received the money. Thus, it has been said that: Good faith in the payment of public funds relieves a public officer from the crime of malversation. xxxxxxxxx

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Not every unauthorized payment of public funds is malversation. There is malversation only if the public officer who has custody of public funds should appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence shall permit any other person to take such public funds. Where the payment of public funds has been made in good faith, and there is reasonable ground to believe that the public officer to whom the fund had been paid was entitled thereto, he is deemed to have acted in good faith, there is no criminal intent, and the payment, if it turns out that it is unauthorized, renders him only civilly but not criminally liable.[29] Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-out public money for the personal benefit of those then in power, still, no criminal liability can be imputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious scheme. In short, no conspiracy was established between Tabuena and the real embezzler/s of the P55 Million. In the cases of US v. Acebedo[30] and Ang v. Sandiganbayan, [31] both also involving the crime of malversation, the accused therein were acquitted after the Court arrived at a similar finding of non-proof of conspiracy. In Acebedo, therein accused, as municipal president of Palo, Leyte, was prosecuted for and found guilty by the lower court of malversation after being unable to turn over certain amounts to the then justice of the peace. It appeared, however, that said amounts were actually collected by his secretary Crisanto Urbina. The Court reversed Acebedos conviction after finding that the sums were converted by his secretary Urbina without the knowledge and participation of Acebedo. The Court said, which we herein adopt: No conspiracy between the appellant and his secretary has been shown in this case, nor did such conspiracy appear in the case against Urbina. No guilty knowledge of the theft committed by the secretary was shown on the part of the appellant in this case, nor does it appear that he in any way participated in the fruits of the crime. If the secretary stole the money in question without the knowledge or consent of the appellant and without negligence on his part, then certainly the latter can not be convicted of embezzling the same money or any part thereof. [32] In Ang, accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted into checks drawn in the name of one Marshall Lu, a non-customer of MWSS, but the checks were subsequently dishonored. Ang was acquitted by this Court after giving credence to his assertion that the conversion of his collections into checks were thru the machinations of one Lazaro Guinto, another MWSS collector more senior to him. And we also adopt the Courts observation therein, that: The petitioners alleged negligence in allowing the senior collector to convert cash collections into checks may be proof of poor judgment or too trusting a nature insofar as a superior officer is concerned but there must be stronger evidence to show fraud, malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall Lu. The prosecution failed to show that the petitioner was privy to the conspirational scheme. Much less is there any proof that he profited from the questioned acts. Any suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS, must be converted into evidence before conviction beyond reasonable doubt may be imposed.[33] The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta in relation to the P5 Million for which he is being held able, i.e., he acted in good faith when he, upon the directive of Tabuena, helped facilitate the withdrawal of P5 Million of the P55 Million of the MIAA funds. This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly executed order. Indeed, compliance to a patently lawful order is rectitude far better than Page 99 of 141

contumacious disobedience. In the case at bench, the order emanated from the Office of the President and bears the signature of the President himself, the highest official of the land. It carries with it the presumption that it was regularly issued. And on its face, the memorandum is patently lawful for no law makes the payment of an obligation illegal. This fact, coupled with the urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis essentia. Besides, the case could not be detached from the realities then prevailing. As aptly observed by Mr. Justice Cruz in his dissenting opinion: We reject history in arbitrarily assuming that the people were free during the era and that the judiciary was independent and fearless. We know it was not; even the Supreme Court at that time was not free. This is an undeniable fact that we can not just blink away. Insisting on the contrary would only make our sincerity suspect and even provoke scorn for what can only be described as our incredible credulity. [34] But what appears to be a more compelling reason for their acquittal is the violation of the accuseds basic constitutional right to due process. Respect for the Constitution, to borrow once again Mr. Justice Cruzs words, is more important than securing a conviction based on a violation of the rights of the accused.[35] While going over the records, we were struck by the way the Sandiganbayan actively took part in the questioning of a defense witness and of the accused themselves. Tabuena and Peralta may not have raised this as an error, there is nevertheless no impediment for us to consider such matter as additional basis for a reversal since the settled doctrine is that an appeal throws the whole case open to review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from whether they are made the subject of assignments of error or not. [36] Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the testimony of Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, Atty. Andres asked sixteen (16) questions on direct examination. Prosecutor Viernes only asked six (6) questions on cross-examination in the course of which the court interjected a total of twenty-seven (27) questions (more than four times Prosecutor Viernes questions and even more than the combined total of direct and cross-examination questions asked by the counsels). After the defense opted not to conduct any re-direct examination, the court further asked a total of ten (10) questions.[37] The trend intensified during Tabuenas turn on the witness stand. Questions from the court after Tabuenas cross-examination totalled sixty-seven (67). [38] This is more than five times Prosecutor Viernes questions on cross-examination (14), and more than double the total of direct examination and cross-examination questions which is thirtyone (31) [17 direct examination questions by Atty. Andres plus 14 cross-examination questions by Prosecutor Viernes]. In Peraltas case, the Justices, after his cross-examination, propounded a total of forty-one (41) questions.[39] But more importantly, we note that the questions of the court were in the nature of cross examinations characteristic of confrontation, probing and insinuation. [40] (The insinuating type was best exemplified in one question addressed to Peralta, which will be underscored.) Thus we beg to quote in length from the transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions from the Court are marked with asterisks and italicized for emphasis.)

(MONERA) (As a background, what was elicited from his direct examination is that the PNCC had receivables from MIAA totalling P102,475,392.35, and although such receivables were largely billings for escalation, they were nonetheless all due and demandable. What follows are the cross-examination of Prosecutor Viernes and the court questions). Page 100 of 141

CROSS-EXAMINATION BY PROS. VIERNES Q You it that as shown by these Exhibits 7 and 7-a, the items here represent mostly escalation billings. Were those escalation billings properly transmitted to MIA authorities? A I dont have the documents right now to show that they were transmitted, but I have a letter by our President, Mr. Olaguer, dated July 6, 1988, following up for payment of the balance of our receivables from MIA, sir. *AJ AMORES *Q This matter of escalation costs, is it not a matter for a conference between the MIA and the PNCC for the determination as to the correct amount? A I agree, your Honor. As far as we are concerned, our billings are what we deemed are valid receivables. And, in fact, we have been following up for payment. *Q This determination of the escalation costs was it accepted as the correct figure by MIA? A I dont have any document as to the acceptance by MIA, your Honor, but our company was able to get a document or a letter by Minister Ongpin to President Marcos, dated January 7, 1985, with a marginal note or approval by former President Marcos. *PJ GARCHITORENA *Q Basically, the letter of Mr. Ongpin is to what effect? A The subject matter is approval of the supplementary contract and request for partial deferment of payment for MIA Development Project, your Honor. *Q It has nothing to do with the implementation of the escalation costs? A The details show that most of the s refer to our escalations, your Honor. *Q Does that indicate the computation for escalations were already billed or you do not have any proof of that? A Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin appears to have confirmed our billings to MIA, your Honor. *AJ AMORES *Q Were there partial payments made by MIA on these escalation billings? A Based on records available as of today, the P102 million was reduced to about P56.7 million, if my recollection is correct, your Honor. *PJ GARCHITORENA *Q Were the payments made before or after February 1986, since Mr. Olaguer is a new entrant to your company? WITNESS A The payments were made after December 31, 1985 but I think the payments were made before the entry of our President, your Honor. Actually, the payment was in the form of:assignments to State Investment of about P23 million; and then there was P17.8 million application against advances made or formerly given; and there were payments to PNCC of aboutP2.6 million and there was a payment for application on withholding and contractual stock of about P1 million; that summed up to P44.4 Page 101 of 141

million all in all. And you deduct that from theP102 million, the remaining balance would be about P57 million. *PJ GARCHITORENA *Q What you are saying is that, for all the payments made on this P102 million, only P2 million had been payments in cash? A Yes, your Honor. *Q The rest had been adjustments of s, assignments of s, or offsetting of s? A Yes, your Honor. *Q This is as of December 31, 1985? A The P102 million was as of December 31, 1985, your Honor, but the balances is as of August 1987. *Q We are talking now about the P44 million, more or less, by which the basic has been reduced. These reductions, whether by adjustment or assignment or actual delivery of cash, were made after December 31, 1985? WITNESS A Yes, your Honor. *Q And your records indicate when these adjustments and payments were made? A Yes, your Honor. *AJ AMORES *Q You said there were partial payments before of these escalation billings. Do we get it from you that there was an ission of these escalation costs as computed by you by MIA, since there was already partial payments? A Yes, your Honor. *Q How were these payments made before February 1986, in case or check, if there were payments made? A The P44 million payments was in the form of assignments, your Honor. *PJ GARCHITORENA *Q The question of the Court is, before December 31, 1985, were there any liquidations made by MIA against these escalation billings? A I have not reviewed the details of the record, your Honor. But the ledger card indicates that there were collections on page 2 of the Exhibit earlier presented. It will indicate that there were collections shown by credits indicated on the credit side of the ledger. *AJ AMORES *Q Your ledger does not indicate the manner of giving credit to the MIA with respect to the escalation billings. Was the payment in cash or just credit of some sort before December 31, 1985? A Before December 31, 1985, the reference of the ledger are official receipts and I suppose these were payments in cash, your Honor. Page 102 of 141

*Q Do you know how the manner of this payment in cash was made by MIA? A I do not know, your Honor. *PJ GARCHITORENA *Q But your records will indicate that? A The records will indicate that, your Honor. *Q Except that you were not asked to bring them? A Yes, your Honor. *Q At all events, we are talking of settlement or partial liquidation prior to December 31, 1985? A Yes, your Honor. *PJ GARCHITORENA *Q Subsequent thereto, we are talking merely of about P44 million? A Yes, your Honor, as subsequent settlements. *Q After December 31, 1985? A Yes, your Honor. *Q And they have liquidated that, as you described it, by way of assignments, adjustments, by offsets and by P2 million of cash payment? A Yes, your Honor. *AJ AMORES *Q Your standard operating procedure before December 31, 1985 in connection with or in case of cash payment, was the payment in cash or check? A I would venture to say it was by check, your Honor. *Q Which is the safest way to do it? A Yes, your Honor. *PJ GARCHITORENA *Q And the business way? A Yes, your Honor. PJ GARCHITORENA Continue. PROS VIERNES Q You mentioned earlier about the letter of former Minister Ongpin to the former President Marcos, did you say that that letter concurs with the escalation billings reflected in Exhibits 7 and 7-a? WITNESS A The Company or the management is of the opinion that this letter, a copy of which we were able to get, is a confirmation of the acceptance of our billings, sir. Page 103 of 141

Q This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of escalation billings as appearing in Exhibit 7 are dated June 30, 1985, would you still insist that the letter of January 1985 confirms the escalation billings as of June 1985? A The entries started June 30 in the ledger card. And as of December 31, 1985, it stood at P102 million after payments were made as shown on the credit side of the ledger. I suppose hat the earlier amount, before the payment was made, was bigger and therefore I would venture to say that the letter of January 7, 1985 contains an amount that is part of the original contract . What are indicated in the ledger are escalation billings. *PJ GARCHITORENA *Q We are talking about the letter of Minister Ongpin? A The letter of Minister Ongpin refers to escalation billings, sir. *Q As of what date? A The letter is dated January 7, 1985, your Honor. PJ GARCHITORENA Continue. PROS. VIERNES Q In accordance with this letter marked Exhibit 7 and 7-a, there were credits made in favor of MIA in July and November until December 1985. These were properly credited to the of MIA? WITNESS A Yes, sir. Q In 1986, from your records as appearing in Exhibit 7-a, there were no payments made to PNCC by MIA for the months of January to June 1986? A Yes, sir. Q And neither was the amount of P22 million remitted to PNCC by MIA? A Yes, sir. PROS VIERNES That will be all, your Honor. PJ GARCHITORENA Redirect? ATTY ANDRES No redirect, your Honor. *PJ GARCHITORENA Questions from the Court. *AJ AMORES *Q From your records, for the month of January 1986, there was no payment of this escalation by MIA? Page 104 of 141

WITNESS A Yes, your Honor. But on page 2 of Exhibit 7 there appears an assignment of P23 million, that was on September 25, 1986. *Q But that is already under the present istration? A After February 1986, your Honor. *Q But before February, in January 1986, there was no payment whatsoever by MIA to PNCC? A Per record there is none appearing, your Honor. *PJ GARCHITORENA *Q The earliest payment, whether by delivery of cash equivalent or of adjustment of , or by assignment, or by offsets, when did these payments begin? A Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor. *Q After December 31, 1985? A There appears also P23 million as credit, that is a form of settlement, your Honor. *Q This is as of September 25? A Yes, your Honor. There were subsequent settlements. P23 million is just part of the P44 million. *Q And what you are saying is that, PNCC ed the to State Investment. In other words, State Investment bought the credit of MIA? A Yes, your Honor. *Q And the amount of credit or receivables sold by PNCC to State Investment is P23 million? A Yes, your Honor. *Q Is there a payback agreement? A I have a copy of the assignment to State Investment but I have not yet reviewed the same, your Honor. *AJ AMORES *Q As of now, is this obligation of MIA, now NAIA, paid to PNCC? A There is still a balance of receivables from MIA as evidenced by a collection letter by our President dated July 6, 1988, your Honor. The amount indicated in the letter is P55 million. PJ GARCHITORENA Any clarifications you would like to make Mr. Estebal? ATTY ESTEBAL None, your Honor. PJ GARCHITORENA Mr. Viernes? Page 105 of 141

PROS VIERNES No more, your Honor. PJ GARCHITORENA The witness is excused. Thank you very much Mr. Monera. x x x.[41]

(TABUENA) (In his direct examination, he testified that he caused the preparation of the checks totalling P55 Million pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash on the three (3) dates as alleged in the information to Marcos private secretary Mrs. Jimenez at her office at Aguado Street, who thereafter issued a receipt. Tabuena also denied having used the money for his own personal use.) CROSS-EXAMINATION BY PROS. VIERNES Q The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were delivered on how many occasions? A Three times, sir. Q And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez? A Yes, sir. Q It was only on January 30, 1986 that this receipt Exhibit 3 was issued by Mrs. Gimenez? A Yes, sir. *PJ GARCHITORENA *Q So January 30 is the date of the last delivery? A I it was on the 31st of January, your Honor. What happened is that, I did not notice the date placed by Mrs. Gimenez. *Q Are you telling us that this Exhibit 3 was incorrectly dated? A Yes, your Honor. *Q Because the third delivery was on January 31st and yet the receipt was dated January 30? A Yes, your Honor. *Q When was Exhibit 3 delivered actually by Mrs. Gimenez? A January 31st, your Honor. PJ GARCHITORENA Continue. PROS VIERNES Q You did not go to Malacaang on January 30, 1986? A Yes, sir, I did not. Q Do you know at whose instance this Exhibit 3 was prepared? Page 106 of 141

A I asked for it, sir. Q You asked for it on January 31, 1986 when you made the last delivery? A Yes, sir. Q Did you see this Exhibit 3 prepared in the Office of Mrs. Gimenez? A Yes, sir. Q This receipt was typewritten in Malacaang stationery. Did you see who typed this receipt? A No, sir. What happened is that, she went to her room and when she came out she gave me that receipt. *PJ GARCHITORENA *Q What you are saying is, you do not know who typed that receipt? WITNESS A Yes, your Honor. *Q Are you making an assumption that she typed that receipt? A Yes, your Honor, because she knows how to type. *Q Your assumption is that she typed it herself? A Yes, your Honor. PJ GARCHITORENA Proceed. PROS. VIERNES Q This receipt was prepared on January 31, although it is dated January 30? A Yes, sir, because I was there on January 31st. Q In what particular place did Mrs. Gimenez sign this Exhibit 3? A In her office at Aguado, sir. Q Did you actually see Mrs. Gimenez g this receipt Exhibit 3? A No, sir, I did not. She was inside her room. Q So, she was in her room and when she came out of the room, she handed this receipt to you already typed and signed? A Yes, sir. *AJ HERMOSISIMA *Q So, how did you know this was the signature of Mrs. Gimenez? WITNESS A Because I know her signature, your Honor. I have been receiving letters from her also and when she requests for something from me. Her writing is familiar to me. *Q So, when the Presiding Justice asked you as to how you knew that this was the signature of Mrs. Gimenez and you answered that you saw Mrs. Gimenez signed it, you were not exactly truthful? Page 107 of 141

A What I mean is, I did not see her sign because she went to her room and when she came out, she gave me that receipt, your Honor. PJ GARCHITORENA That is why you have to wait for the question to be finished and listen to it carefully. Because when I asked you, you said you saw her signed it. Be careful Mr. Tabuena. WITNESS Yes, your Honor. PJ GARCHITORENA Continue. PROS VIERNES Q Was there another person inside the office of Mrs. Gimenez when she gave you this receipt Exhibit 3? A Nobody, sir. Q I noticed in this receipt that the last delivery of the sum of P55 million was made on January 30. Do we understand from you that this date January 30 is erroneous? A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be January 31st, sir. PROS VIERNES That will be all, your Honor. PJ GARCHITORENA Redirect? ATTY. ANDRES No redirect, your Honor. *PJ GARCHITORENA Questions from the Court. *AJ HERMOSISIMA *Q Why did you not ask for a receipt on the first and second deliveries? A Because I know that the delivery was not complete yet, your Honor. *PJ GARCHITORENA *Q So you know that the total amount to be delivered was P55 million? A Yes, your Honor. PJ GARCHITORENA Response by Mr. Peralta to the testimony of Mr. Tabuena. ATTY. ESTEBAL We are adopting the testimony of Mr. Tabuena and we will also present the accused, your Honor. Page 108 of 141

*AJ DEL ROSARIO *Q From whom did you receive the Presidents memorandum marked Exhibit 1? Or more precisely, who handed you this memorandum? A Mrs. Fe Roa Gimenez, your Honor. *Q Did you ask Mrs. Fe Gimenez for what purpose the money was being asked? A The money was in payment for the debt of the MIA Authority to PNCC, your Honor. *Q If it was for the payment of such obligation why was there no voucher prepared to cover such payment? In other words, why was the delivery of the money not covered by any voucher?Calrky A The instruction to me was to give it to the Office of the President, your Honor. *PJ GARCHITORENA *Q Be that as it may, why was there no voucher to cover this particular disbursement? A I was just told to bring it to the Office of the President, your Honor. *AJ DEL ROSARIO *Q Was that normal procedure for you to pay in cash to the Office of the President for obligations of the MIAA in payment of its obligation to another entity? WITNESS A No, your Honor, I was just following the Order to me of the President. *PJ GARCHITORENA *Q So the Order was out of the ordinary? A Yes, your Honor. *AJ DEL ROSARIO *Q Did you file any written protest with the manner with which such payment was being ordered? A No, your Honor. *Q Why not? A Because with that instruction of the President to me, I followed, your Honor. *Q Before receiving this memorandum Exhibit 1, did the former President Marcos discuss this matter with you? A Yes, your Honor. *Q When was that? A He called me up earlier, a week before that, that he wants to me pay what I owe the PNCC directly to his office in cash, your Honor. *PJ GARCHITORENA *Q By I OWE, you mean the MIAA? WITNESS A Yes, your Honor. Page 109 of 141

*AJ DEL ROSARIO *Q And what did you say in this discussion you had with him? A I just said, Yes, sir, I will do it/ *Q Were you the one who asked for a memorandum to be signed by him? A No, your Honor. *Q After receiving that verbal instruction for you to pay MIAAs obligation with PNCC, did you not on your own accord already prepare the necessary papers and documents for the payment of that obligation? A He told me verbally in the telephone that the Order for the payment of that obligation is forthcoming, your Honor. I will receive it. *Q Is this the first time you received such a memorandum from the President? A Yes, your Honor. *Q And was that the last time also that you received such a memorandum? A Yes, your Honor. *Q Did you not inquire, if not from the President, at least from Mrs. Gimenez why this procedure has to be followed instead of the regular procedure? A: No, sir. *AJ DEL ROSARIO *Q Why did you not ask? A I was just ordered to do this thing, your Honor. *AJ HERMOSISIMA *Q You said there was an I OWE YOU? A Yes, your Honor. *Q Where is that I OWE YOU now? A All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes PNCC that amount. *Q Was this payment covered by receipt from the PNCC? A It was not covered, your Honor. *Q So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that payment? A Based on the order to me by the former President Marcos ordering me to pay that amount to his office and then the mechanics will come after, your Honor. *Q Is the PNCC a private corporation or government entity? A I think it is partly government, your Honor. *PJ GARCHITORENA *Q That is the former CD? A Yes, your Honor. Page 110 of 141

*AJ HERMOSISIMA *Q Why were you not made to pay directly to the PNCC considering that you are the Manager of MIA at that time and the PNCC is a separate corporation, not an adjunct of Malacaang? WITNESS A I was just basing it from the Order of Malacaang to pay PNCC through the Office of the President, your Honor. *Q Do you know the President or Chairman of the Board of PNCC? A Yes, your Honor. *Q How was the obligation of MIAA to PNCC incurred. Was it through the President or Chairman of the Board? A PNCC was the one that constructed the MIA, your Honor. *Q Was the obligation incurred through the President or Chairman of the Board or President of the PNCC? In other words, who signed the contract between PNCC and MIAA? A Actually, we inherited this obligation, your Honor. The one who signed for this was the former Director of BAT which is General Singzon. Then when the MIA Authority was formed, all the obligations of BAT were transferred to MIAA. So the abilities of BAT were transferred to MIAA and we are the ones that are going to pay, your Honor. *Q Why did you agree to pay to Malacaang when your obligation was with the PNCC? A I was ordered by the President to do that, your Honor. *Q You agreed to the order of the President notwithstanding the fact that this was not the regular course or Malacaang was not the creditor? A I saw nothing wrong with that because that is coming from the President, your Honor. *Q The amount was not a joke, amounting to P55 million, and you agreed to deliver money in this amount through a mere receipt from the private secretary? A I was ordered by the President, your Honor. *PJ GARCHITORENA *Q There is no question and it can be a matter of judicial knowledge that you have been with the MIA for sometime? A Yes, your Honor. *Q Prior to 1986? A Yes, your Honor. *Q Can you tell us when you became the Manager of MIA? A I became Manager of MIA way back, late 1968, your Honor. *Q Long before the MIA was constituted as an independent authority? A Yes, your Honor. *PJ GARCHITORENA *Q And by 1986, you have been running the MIA for 18 years? Page 111 of 141

WITNESS A Yes, your Honor. *Q And prior to your ing the MIA, did you ever work for the government? A No, your Honor. *Q So, is it correct for us to say that your ing the MIA in 1968 as its Manager was your first employment with the government? A Yes, your Honor. *Q While you were Manager of MIA, did you have other subsequent concurrent positions in the government also? A I was also the Chairman of the Games and Amusement Board, your Honor. *Q But you were not the executive or operating officer of the Games and Amusement Board? A I was, your Honor. *Q As Chairman you were running the Games and Amusement Board? A Yes, your Honor. *Q What else, what other government positions did you occupy that time? A I was also Commissioner of the Game Fowl Commission, your Honor. *PJ GARCHITORENA *Q That is the cockfighting? WITNESS A Yes, your Honor. *Q Here, you were just a member of the Board? A Yes, your Honor. *Q So you were not running the commission? A Yes, your Honor. *Q Any other entity? A No more, your Honor. *Q As far as you can recall, besides being the Manager of the MIA and later the MIAA for approximately 18 years, you also ran the Games and Amusement Board as its executive officer? A Yes, your Honor. *Q And you were a commissioner only of the Game Fowl Commission? A Yes, your Honor. *Q Who was running the commission at that time? A I forgot his name, but he retired already, your Honor. *Q All of us who ed the government, sooner or later, meet with our Resident COA representative? Page 112 of 141

A Yes, your Honor. *PJ GARCHITORENA *Q And one of our unfortunate experience (sic) is when the COA Representative comes to us and says: Chairman or Manager, this cannot be. And we learn later on that COA has reasons for its procedure and we learn to adopt to them? WITNESS A Yes, your Honor. *Q As a matter of fact, sometimes we consider it inefficient, sometimes we consider it foolish, but we know there is reason in this apparent madness of the COA and so we comply? A Yes, your Honor. *Q And more than anything else the COA is ever anxious for proper documentation and proper ing papers? A Yes, your Honor. *Q Sometimes, regardless of the amount? A Yes, your Honor. *Q Now, you have P55 million which you were ordered to deliver in cash, not to the creditor of the particular credit, and to be delivered in armored cars to be acknowledged only by a receipt of a personal secretary. After almost 18 years in the government service and having had that much time in dealing with COA people, did it not occur to you to call a COA representative and say, What will I do here? A I did not, your Honor. *PJ GARCHITORENA *Q Did you not think that at least out of prudence, you should have asked the COA for some guidance on this matter so that you will do it properly? WITNESS A What I was going to do is, after those things I was going to tell that delivery ordered by the President to the COA, your Honor. *Q That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta signed requests for issuance of Managers checks and you were accommodated by the PNB Office at Nichols without any internal documentation to justify your request for Managers checks? A Yes, your Honor. *Q Of course we had no intimation at that time that Mr. Marcos will win the elections but even then, the Daily Express, which was considered to be a newspaper friendly to the Marcoses at that time, would occasionally come with so-called expose, is that not so? A Yes, your Honor. *Q And worst, you had the so-called mosquito press that would always come out with the real or imagined scandal in the government and place it in the headline, do you recall that? A Yes, your Honor. Page 113 of 141

*PJ GARCHITORENA *Q Under these circumstances, did you not entertain some apprehension that some disloyal employees might leak you out and banner headline it in some mosquito publications like the Malaya at that time? WITNESS A No, your Honor. *PJ GARCHITORENA I bring this up because we are trying to find out different areas of fear. We are in the government and we in the government fear the COA and we also fear the press. We might get dragged into press releases on the most innocent thing. You believe that? A Yes, your Honor. *Q And usually our best defense is that these activities are properly documented? A Yes, your Honor. *Q In this particular instance, your witnesses have told us about three (3) different trips from Nichols to Aguado usually late in the day almost in movie style fashion. I mean, the money being loaded in the trunk of your official car and then you had a back-up truck following your car? A Yes, your Honor. *Q Is that not quite a fearful experience to you? A I did not think of that at that time, your Honor. *PJ GARCHITORENA *Q You did not think it fearful to be driving along Roxas Boulevard with P25 million in the trunk of your car? WITNESS A We have security at that time your Honor. ATTY. ANDRES Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of his car. *PJ GARCHITORENA Thank you for the correction. Even P1 million only. How much more with P5 million inside the trunk of your car, was that not a nervous experience? A As I have said, your Honor, I never thought of that. PJ GARCHITORENA Thank you very much, Mr. Tabuena. You are excused. x x x.[42]

(PERALTA) (He testified on direct examination that he co-signed with Tabuena a memorandum request for the issuance of the Managers Check for P5 Million upon order of Tabuena and that he [Peralta] Page 114 of 141

was aware that MIAA had an existing obligation with PNCC in the amount of around P27 Million. He affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but denied having misappropriated for his own benefit said amount or any portion thereof.) CROSS-EXAMINATION BY PROS VIERNES Q Will you please tell the Honorable Court why was it necessary for you to co-sign with Mr. Tabuena the request for issuance of Managers check in the amount of P5 million? A At that time I was the Acting Financial Services Manager of MIAA, sir, and all withdrawals of funds should have my signature because I was one of the signatories at that time. Q As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in similar requests for the issuance of Managers checks by the PNB? A That is the only occasion I signed, sir. Q Did you say you were ordered by Mr. Tabuena to sign the request? A Yes, sir, and I think the order is part of the exhibits. And based on that order, I cosigned in the request for the issuance of Managers check in favor of Mr. Luis Tabuena. PROS VIERNES Q Was there a separate written order for you to co-sign with Mr. Tabuena? WITNESS A Yes, sir, an order was given to me by Mr. Tabuena. *PJ GARCHITORENA Was that marked in evidence? WITNESS Yes, your Honor. *PJ GARCHITORENA What exhibit? WITNESS I have here a copy, your Honor. This was the order and it was marked as exhibit N. PROS VIERNES It was marked as Exhibit M, your Honor. Q How did you know there was an existing liability of MIAA in favor of PNCC at that time? A Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement of MIAA as of December 31, 1985 and it came to my attention that there was an existing liability of around P27,999,000.00, your Honor. Q When was that Financial Statement prepared? A I prepared it around January 22 or 24, something like that, of 1986, sir.

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Q Is it your usual practice to prepare the Financial Statement after the end of the year within three (3) weeks after the end of the year? A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or before the 4th Friday of the month because there will be a Board of Directors Meeting and the Financial Statement of the prior month will be presented and discussed during the meeting. *PJ GARCHITORENA *Q This matter of preparing Financial Statement was not an annual activity but a monthly activity? A Yes, your Honor. *Q This Financial Statement you prepared in January of 1986 recapitulated the financial condition as of the end of the year? A Yes, your Honor. PJ GARCHITORENA Continue. PROS VIERNES Q You made mention of a request for Escalation Clause by former Minister Ongpin. Did you personally see that request? A When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I have no file because I just read it. Q It was Mr. Tabuena who showed you the letter of Minister Ongpin? A Yes, sir. *PJ GARCHITORENA And that will be Exhibit? ATTY. ANDRES Exhibit 2 and 2-A, your Honor. PROS VIERNES Q You also stated that you were with Mr. Tabuena when you withdrew the amount of P5 million from the PNB Extension Office at Villamor? A Yes, sir. Q Why was it necessary for you to go with him on that occasion? A Mr. Tabuena requested me to do the counting by million, sir. So what I did was to bundle count the P5 million and it was placed in two (2) peerless boxes. Q Did you actually participate in the counting of the money by bundles? A Yes, sir. Q Bundles of how much per bundle? A If I right, the bundles consisted of P100s and P50s, sir. Q No P20s and P10s? Page 116 of 141

A Yes, sir, I think it was only P100s and P50s. *PJ GARCHITORENA *Q If there were other denominations, you can not recall? A Yes, your Honor. PROS VIERNES Q In how many boxes were those bills placed? A The P5 million were placed in two (2) peerless boxes, sir. Q And you also went with Mr. Tabuena to Aguado? A No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr. Tabuena, I was left behind and I went back to my office at MIA. Q But the fact is that, this P5 million was withdrawn at ed 5:00 oclock in the afternoon? A I started counting it I think at around 4:30, sir. It was after office hours. But then I was there at around 4:00 oclock and we started counting at around 4:30 p.m. because they have to place it in a room, which is the office of the Manager at that time. Q And Mr. Tabuena left for Malacaang after 5:00 oclock in the afternoon of that date? A Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr. Tabuena left for Malacaang. PROS VIERNES Q And you yourself, returned to your office at MIA? WITNESS A Yes, sir. Q Until what time do you hold office at the MIA? A Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in the office, sir. Q So, even if it was already after 5:00 oclock in the afternoon, you still went back to your office at MIA? A Yes, sir. PROS VIERNES That will be all, your Honor. PJ GARCHITORENA Redirect? ATTY. ESTEBAL No redirect, your Honor. *PJ GARCHITORENA Questions from the Court. *AJ DEL ROSARIO Page 117 of 141

*Q Did you not consider it as odd that your obligation with the PNCC had to be paid in cash? WITNESS A Based on the order of President Marcos that we should pay in cash, it was not based on the normal procedure, your Honor. *Q And, as Acting Financial Services Manager, you were aware that all disbursements should be covered by vouchers? A Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as what we did was to prepare a request to the PNB, then this can be covered by Journal Voucher also. *Q Was such payment of P5 million covered by a Journal Voucher? A Yes, your Honor. *Q Did you present that Journal Voucher here in Court? A We have a copy, your Honor. *Q Do you have a copy or an excerpt of that Journal Voucher presented in Court to show that payment? A We have a copy of the Journal Voucher, your Honor. *Q Was this payment of P5 million ever recorded in a cashbook or other ing books of MIAA? A The payment of P5 million was recorded in a Journal Voucher, your Honor. *PJ GARCHITORENA *Q In other words, the recording was made directly to the Journal? WITNESS A Yes, your Honor. *Q There are no other separate documents as part of the application for Managers Check? A Yes, your Honor, there was none. *AJ DEL ROSARIO *Q After the payment was made, did your office receive any receipt from PNCC? A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your Honor. Inasmuch as the payment should be made through the Office of the president, I accepted the receipt given by Mrs. Fe Gimenez to Mr. Tabuena. *Q After receiving that receipt, did you prepare the necessary ing documents, vouchers, and use that receipt as a ing document to the voucher? A Your Honor, a Journal Voucher was prepared for that. *Q How about a disbursement voucher? A Inasmuch as this was a request for Managers check, no disbursement voucher was prepared, your Honor. *AJ DEL ROSARIO Page 118 of 141

*Q Since the payment was made on January 31, 1986, and that was very close to the election held in that year, did you not entertain any doubt that the amounts were being used for some other purpose? ATTY. ESTEBAL With due respect to the Honorable Justice, we are objecting to the question on the ground that it is improper. *AJ DEL ROSARIO I will withdraw the question. *PJ GARCHITORENA What is the ground for impropriety? ATTY. ESTEBAL This is not covered in the direct examination, and secondly, I dont think there was any basis, your Honor. *PJ GARCHITORENA Considering the withdrawal of the question, just make the objection on record. *AJ HERMOSISIMA *Q As a Certified Public ant and Financial Manager of the MIAA, did you not consider it proper that a check be issued only after it is covered by a disbursement voucher duly approved by the proper authorities? A Your Honor, what we did was to send a request for a Managers check to the PNB based on the request of Mr. Tabuena and the order of Mr. Tabuena was based on the Order of President Marcos. *PJ GARCHITORENA *Q In your capacity as Financial Services Manager of the MIAA, did you not think it proper to have this transaction covered by a disbursement voucher? WITNESS A Based on my experience, payments out of cash can be made through cash vouchers, or even though Journal Vouchers, or even through credit memo, your Honor. *AJ HERMOSISIMA *Q This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement by means of check in favor of Mr. Luis Tabuena, your own manager? A We based the payment on the order of Mr. Tabuena because that was the order of President Marcos to pay PNCC through the Office of the President and it should be paid in cash, your Honor. *Q You are supposed to pay only on legal orders. Did you consider that legal? ATTY. ESTEBAL With due respect to the Honorable Justice, the question calls for a conclusion of the witness. *PJ GARCHITORENA Considering that the witness is an expert, witness may answer. Page 119 of 141

WITNESS A The order of president Marcos was legal at that time because the order was to pay PNCC the amount of P5 million through the Office of the President and it should be paid in cash, your Honor. And at that time, I know for a fact also that there was an existing P.D. wherein the President of the Republic of the Philippines can transfer funds from one office to another and the PNCC is a quasi government entity at that time. *AJ HERMOSISIMA *Q Are you saying that this transaction was made on the basis of that P.D. which you referred to? A I am not aware of the motive of the President, but then since he is the President of the Philippines, his order was to pay the PNCC through the Office of the President, your Honor. *Q As Financial Manager, why did you allow a payment in cash when ordinarily payment of an obligation of MIAA is supposed to be paid in check? A I caused the payment through the name of Mr. Tabuena because that was the order of Mr. Tabuena and also he received an order coming from the President of the Philippines at that time, your Honor. *PJ GARCHITORENA *Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of s earlier made in the same journal? In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded. WITNESS A Yes, your Honor. *Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature of the transactions? A Yes, your Honor. *Q In other words, as an ant, you would not normally authorize such a movement of money unless it is properly documented? ATTY. ESTEBAL With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is... *PJ GARCHITORENA Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him. ATTY. ESTEBAL No, your Honor. I am also an ant that is why I could say that... *PJ GARCHITORENA Please be simple in your objection. ATTY. ESTEBAL Page 120 of 141

The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was ed, your Honor. *PJ GARCHITORENA Overruled, may answer. WITNESS A The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor. *Q Are you saying the Order of the General Manager is an adequate basis for the movement of money? A Yes, your Honor, because at that time we have also a recorded liability of P27 million. *Q We are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself adequate with no other ing papers, to justify the movement of funds? A Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability of P27,931,000.00, inasmuch as we have that liability and I was shown the order of President Marcos to pay P5 million through the Office of the President, I considered the order of Mr. Luis Tabuena, the order of President Marcos and also the existing liability of P27 million sufficient to pay the amount of P5 million. Inasmuch as there is also an escalation clause of P99.1 million, the payment of P5 million is fully covered by those existing documents. *PJ GARCHITORENA You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds? WITNESS When we pay, your Honor, we always look for the necessary documents and at that time I know for a fact that there was this existing liability. *PJ GARCHITORENA When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that there are all of these memoranda. *Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate? WITNESS A As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown the Order of President Marcos to pay PNCC through his office, I feel that the order of the General Manager, the order of President Marcos, and also the memorandum of Minister Ongpin are sufficient to cause the payment of P5 million. *PJ GARCHITORENA *Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned? Page 121 of 141

WITNESS A Because at that time, your Honor, I have knowledge that the President is authorized through a Presidential Decree to transfer government funds from one office to another. *PJ GARCHITORENA *Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act? A I think the liability was duly recorded and appropriations to pay the amount is..... (interrupted) *PJ GARCHITORENA *Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what the question is? A No, your Honor. *Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as you did not read the Decree? A I was aware of that Decree, your Honor. *PJ GARCHITORENA Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds? ATTY. ESTEBAL Yes, your Honor. *PJ GARCHITORENA *Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he? A No, your Honor. *Q In fact, for purposes of internal control, you have different officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not? A Yes, your Honor. *Q So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will restrain him? A Yes, your Honor. *Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes? A Yes, your Honor. *Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose? A Yes, your Honor. Page 122 of 141

*PJ GARCHITORENA *Q In other words, the co-signatories counter check each other? WITNESS A Yes, your Honor. *Q In your case, you would be the counter check for Mr. Tabuena? A Yes, your Honor. *Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it., if in your opinion the disbursement is not proper? A Yes, your Honor. *Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular transaction? A Yes, your Honor. *Q And this is something you know by the nature of your position and because you are a Certified Public ant? A Yes, your Honor. *AJ DEL ROSARIO *Q You it that the payment of P5 million and P50 million were unusual in the manner with which they were disposed? A Yes, your Honor. *Q Did you submit a written protest to the manner in which such amount was being disposed of? A A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that since this payment was upon the order of President Marcos, then I think as President he can do things which are not ordinary. *Q If you did not prepare a written protest, did you at least prepare a memorandum for the record that this was an extra-ordinary transaction? A I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and no written note, your Honor. PJ GARCHITORENA Thank you very much Mr. Peralta, you are excused. x x x. [43] This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon any material point which presents itself during the trial of a case over which he presides.[44] But not only should his examination be limited to asking clarificatory questions,[45] the right should be sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct of the trial.[46] Here, these limitations were not observed. Hardly in fact can one avoid the impression that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the case against Tabuena and Peralta when the Justices cross-examined the witnesses, their cross-examinations supplementing those made by Prosecutor Viernes and far exceeding the latters questions in length. The cold neutrality of an Page 123 of 141

impartial judge requirement of due process was certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual role of magistrate and advocate. In this connection, the observation made in the Dissenting Opinion to the effect that the majority of this Court was unduly disturbed with the number of court questions alone, is quite inaccurate. A substantial portion of the TSN was incorporated in the majority opinion not to focus on numbers alone, but more importantly to show that the court questions were in the interest of the prosecution and which thus depart from that common standard of fairness and impartiality. In fact, it is very difficult to be, upon review of the records, confronted with numbers without necessarily realizing the partiality of the Court. In US v. De Sisto (2 Cir., 1961, 289 F 2d 833), for example, a new trial was required because the trial judge, as in this case, indulged in extensive questioning of defendant and his witnesses, and the reviewing court also had to amplify on numbers to bolster this. It was pointed out in the De Sisto case that the judge asked 3,115 questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judges questions to the defendant De Sisto totalled 306, the prosecutors 347, and the defense counsels, 201. After referring to these figures, the court stated: . . . It is indeed an impressive proportion, but no such mathematical computation is of itself determinative. However, taking all this in conjunction with the long and vigorous examination of the defendant himself by the judge, and the repeated belittling by the judge of defendants efforts to establish the time that Fine left the pier, we fear that in its zeal for arriving at the facts the court here conveyed to the jury too strong an impression of the courts belief in the defendants probable guilt to permit the jury freely to perform its own function of independent determination of the facts. x x x The majority believes that the interference by the Sandiganbayan Justices was just too excessive that it cannot be justified under the norm applied to a jury trial, or even under the standard employed in a non-jury trial where the judge is ittedly given more leeway in propounding questions to clarify points and to elicit additional relevant evidence. At the risk of being repetitious, we will amplify on this via some specific examples. Based on the evidence on record, and on the ission of Tabuena himself, the P55 million was delivered to the Presidents Office thru Mrs. Gimenez, in obedience to the Presidential directive. One Sandiganbayan Justice, however, hurled the following questions to Peralta: AJ DEL ROSARIO Q: Since the payment was made on January 31, 1986, and that was very close to the election held in that year, did you not entertain any doubt that the amounts were being used for some other purposes? ATTY. ESTEBAL With due respect to the Honorable Justice, We are objecting to the question on the groun d that it is improper. AJ DEL ROSARIO I will withdraw the question. PJ GARCHITORENA What is the ground for impropriety? ATTY. ESTEBAL This is not covered in the direct examination, any basis, Your Honor.

and secondly, I

dont

think

there was

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PJ GARCHITORENA Considering the withdrawal of the question, just make the objection on record. Nothing from the preceding questions of counsels or of the court would serve as basis for this question. How then, can this be considered even relevant? What is the connection between the payment made to the Presidents office and the then forthcoming presidential snap election? In another instance, consider the following questions of Presiding Justice Garchitorena: *PJ GARCHITORENA *Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of s earlier made in the same journal? xxx *Q In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded. xxx *Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature of the transactions? xxx *Q In other words, as an ant, you would not normally authorize such a movement of money unless it is properly documented? ATTY. ESTEBAL With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is... *PJ GARCHITORENA Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him. ATTY. ESTEBAL No, your Honor. I am also an ant that is why I could say that... *PJ GARCHITORENA Please be simple in your objection. ATTY. ESTEBAL The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was ed, your Honor. *PJ GARCHITORENA Overruled, may answer. WITNESS Page 125 of 141

A The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor. *Q Are you saying the Order of the General Manager is an adequate basis for the movement of money? *Q We are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself adequate with no other ing papers, to justify the movement of funds? *PJ GARCHITORENA You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds? *PJ GARCHITORENA When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that there are all of these memoranda. *Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate? *PJ GARCHITORENA *Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned? *PJ GARCHITORENA *Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act? *PJ GARCHITORENA *Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what the question is? xxx *Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as you did not read the Decree? *PJ GARCHITORENA Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds? ATTY. ESTEBAL Yes, your Honor. *PJ GARCHITORENA *Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?

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*Q In fact, for purposes of internal control, you have different officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not? *Q So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will restrain him? *Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes? *Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose? *PJ GARCHITORENA *Q In other words, the co-signatories counter check each other? *Q In your case, you would be the counter check for Mr. Tabuena? *Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it., if in your opinion the disbursement is not proper? *Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular transaction? *Q And this is something you know by the nature of your position and because you are a Certified Public ant?[47] How can these questions be considered clarificatory when they clearly border more on crossexamination questions? Thus, the Dissenting Opinions focus on the distinction between the two kinds of trial to justify the Sandiganbayans active participation in the examination of petitioners Tabuena and Peralta and witness Monera, with due respect, appears insignificant to this case. Let it, therefore, be emphasized anew that: A trial judge should not participate in the examination of witnesses as to create the impression that he is allied with the prosecution.[48] We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but it is never proper for a judge to discharge the duties of a prosecuting attorney. However anxious a judge may be for the enforcement of the law, he should always that he is as much judge in behalf of the defendant accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of safeguarding the interests of society.[49] Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length. The circumstances may be such in a given case as to justify the court in so doing....This court, however, has more than once said that the examination of witnesses is the more appropriate function of counsel, and the instances are rare and the conditions exceptional which will justify the presiding judge in conducting an extensive examination. It is always embarrassing for counsel to object to what he may deem improper questions by the court. Then, in conducting a lengthy examination, it would be almost impossible for the judge to preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial, and it is his duty to see that justice is done, he will usually not find it necessary to conduct such examinations. The extent to which this shall be done must largely be a matter of discretion, to be determined by the circumstances of each particular case, but in so doing he must not forget the function of the judge and assume that of an advocate.... [50] Page 127 of 141

While it is true that the manner in which a witness shall be examined is largely in the discretion of the trial judge, it must be understood that we have not adopted in this country the practice of making the presiding judge the chief inquisitor. It is better to observe our time-honored custom of orderly judicial procedure, even at the expense of occasional delays....The judge is an important figure in the trial of a cause, and while he has the right, and it is often his duty, to question witnesses to the end that justice shall prevail, we can conceive of no other reason, for him to take the trial of the cause out of the hands of counsel. [51] The examination of witnesses is the more appropriate function of counsel, and it is believed the instances are rare and the conditions exceptional in a high degree which will justify the presiding judge in entering upon and conducting an extended examination of a witness, and that the exercise of a sound discretion will seldom deem such action necessary or advisable. [52] He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto. [53] The impartiality of the judge his avoidance of the appearance of becoming the advocate of either one side or the other of the pending controversy is a fundamental and essential rule of special importance in criminal cases....[54] Our courts, while never unmindful of their primary duty to ister justice, without fear or favor, and to dispose of these cases speedily and in as inexpensive a manner as is possible for the court and the parties, should refrain from showing any semblance of one-sided or more or less partial attitude in order not to create any false impression in the minds of the litigants. For obvious reasons, it is the bounden duty of all to strive for the preservation of the peoples faith in our courts.[55] Time and again this Court has declared that due process requires no less than the cold neutrality of an impartial judge. Bolstering this requirement, we have added that the judge must not only be impartial but must also appear to be impartial, to give added assurance to the parties that his decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due process.[56] We are well aware of the fear entertained by some that this decision may set a dangerous precedent in that those guilty of enriching themselves at the expense of the public would be able to escape criminal liability by the mere expedient of invoking good faith. It must never be forgotten, however, that we render justice on a case to case basis, always in consideration of the evidence that is presented. Thus, where the evidence warrants an acquittal, as in this case, we are mandated not only by the dictates of law but likewise of conscience to grant the same. On the other hand, it does not follow that all those similarly accused will necessarily be acquitted upon reliance on this case as a precedent. For the decision in this case to be a precedent, the peculiar circumstances and the evidence that led to the petitioners acquittal must also be present in subsequent cases. Furthermore, as between a mere apprehension of a dangerous precedent and an actual violation of constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For the most dangerous precedent arises when we allow ourselves to be carried away by such fears so that it becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to justice the malefactors of the Marcos regime, we must not succumb to Page 128 of 141

the temptation to commit the greatest injustice of visiting the sins of the wrongdoers upon an innocent. WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are hereby ACQUITTED of the crime of malversation as defined and penalized under Article 217 of the Revised Penal Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution dated December 20, 1991 are REVERSED and SET ASIDE.

12. CABANLIG v. SANDIGANBAYAN, G.R. No. 148431, JULY 28, 2005 CARPIO, J.: The Case

This petition for review[1] seeks to reverse the Decision [2] of the Fifth Division of the Sandiganbayan dated 11 May 1999 and Resolution [3] dated 2 May 2001 affirming the conviction of SPO2 Ruperto Cabanlig (Cabanlig) in Criminal Case No. 19436 for homicide. The Sandiganbayan sentenced Cabanlig to suffer the indeterminate penalty of four months of arresto mayor as minimum to two years and four months of prision correctional as maximum and to pay P50,000 to the heirs of Jimmy Valino (Valino). Cabanlig shot Valino after Valino grabbed the M16 Armalite of another policeman and tried to escape from the custody of the police. The Sandiganbayan acquitted Cabanligs co-accused, SPO1 Carlos Padilla (Padilla), PO2 Meinhart Abesamis (Abesamis), SPO2 Lucio Mercado (Mercado) and SPO1 Rady Esteban (Esteban). The Charge Cabanlig, Padilla, Abesamis, Mercado and Esteban were charged with murder in an amended information that reads as follows: That on or about September 28, 1992, in the Municipality of Penaranda, Province of Nueva Ecija, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, SPO[2] Ruperto C. Cabanlig, SPO1 Carlos E. Padilla, PO2 Meinhart C. Abesamis, SPO2 Lucio L. Mercado and SPO1 Rady S. Esteban, all public officers being of the Philippine National Police, conspiring and confederating and mutually helping one another, with intent to kill, with treachery and evident premeditation, taking advantage of nighttime and uninhabited place to facilitate the execution of the crime, with use of firearms and without justifiable cause, did then and there, wilfully, unlawfully and feloniously attack, assault and shoot one Jimmy Valino, hitting him several times at the vital parts of his body, thereby inflicting upon the latter, serious and mortal wounds which were the direct and immediate cause of his death, which crime was committed by the accused in relation to their office as of the Philippine National Police of Penaranda, Nueva Ecija, the deceased, who was then detained for robbery and under the custody of the accused, having been killed while being taken to the place where he allegedly concealed the effects of the crime, to the damage and prejudice of the heirs of said victim, in such amount as may be awarded under the provisions of the New Civil Code. CONTRARY TO LAW.[4] Page 129 of 141

Arraignment and Plea

On 15 December 1993, the accused police officers Cabanlig, Padilla, Abesamis, Mercado and Esteban pleaded not guilty.

Version of the Prosecution

On 24 September 1992 a robbery occurred in the Municipality of Penaranda, Nueva Ecija. Four days later or on 28 September 1992, the investigating authorities apprehended three suspects: Jordan Magat (Magat), Randy Reyes (Reyes) and Valino. The police recovered most of the stolen items. However, a flower vase and a small radio were still missing. Cabanlig asked the three suspects where these two items were. Reyes replied that the items were at his house. Cabanlig asked his colleagues, Padilla, Mercado, Abesamis and Esteban, to accompany him in retrieving the flower vase and radio. Cabanlig then brought out Reyes and Magat from their cell, intending to bring the two during the retrieval operation. It was at this point that Valino informed Cabanlig that he had moved the vase and radio to another location without the knowledge of his two cohorts. Cabanlig decided instead to bring along Valino, leaving behind Magat and Reyes. Around 6:30 p.m., five fully armed policemen in uniform Cabanlig, Padilla, Mercado, Abesamis and Esteban escorted Valino to Barangay Sinasahan, Nueva Ecija to recover the missing flower vase and radio. The policemen and Valino were aboard a police vehicle, an Isuzu pick-up jeep. The jeep was built like an ordinary jeepney. The rear end of the jeep had no enclosure. A metal covering separated the drivers compartment and main body of the jeep. There was no opening or door between the two compartments of the jeep. Inside the main body of the jeep, were two long benches, each of which was located at the left and right side of the jeep. Cabanlig, Mercado and Esteban were seated with Valino inside the main body of the jeep. Esteban was right behind Abesamis at the left bench. Valino, who was not handcuffed, was between Cabanlig and Mercado at the right bench. Valino was seated at Cabanligs left and at Mercados right. Mercado was seated nearest to the opening of the rear of the jeep. Just after the jeep had crossed the Philippine National Railway bridge and while the jeep was slowly negotiating a bumpy and potholed road, Valino suddenly grabbed Mercados M16 Armalite and jumped out of the jeep. Valino was able to grab Mercados M16 Armalite when Mercado scratched his head and tried to reach his back because some flying insects were pestering Mercado. Mercado shouted hoy! when Valino suddenly took the M16 Armalite. Cabanlig, who was then facing the rear of the vehicle, saw Valinos act of taking away the M16 Armalite. Cabanlig acted immediately. Without issuing any warning of any sort, and with still Page 130 of 141

one foot on the running board, Cabanlig fired one shot at Valino, and after two to three seconds, Cabanlig fired four more successive shots. Valino did not fire any shot. The shooting happened around 7:00 p.m., at dusk or nag-aagaw ang dilim at liwanag. Cabanlig approached Valinos body to check its pulse. Finding none, Cabanlig declared Valino dead. Valino sustained three mortal wounds one at the back of the head, one at the left side of the chest, and one at the left lower back. Padilla and Esteban remained with the body. The other three policemen, including Cabanlig, went to a funeral parlor. The following morning, 29 September 1992, a certain SPO4 Segismundo Lacanilao (Lacanilao) of the Cabanatuan Police went to Barangay Sinasahan, Nueva Ecija to investigate a case. Lacanilao met Mercado who gave him instructions on how to settle the case that he was handling. During their conversation, Mercado related that he and his fellow policemen salvaged (summarily executed) a person the night before. Lacanilao asked who was salvaged. Mercado answered that it was Jimmy Valino. Mercado then asked Lacanilao why he was interested in the identity of the person who was salvaged. Lacanilao then answered that Jimmy Valino was his cousin. Mercado immediately turned around and left.

Version of the Defense

Cabanlig itted shooting Valino. However, Cabanlig justified the shooting as an act of self-defense and performance of duty. Mercado denied that he told Lacanilao that he and his coaccused salvaged Valino. Cabanlig, Mercado, Abesamis, Padilla, and Esteban denied that they conspired to kill Valino. The Sandiganbayans Ruling The Sandiganbayan acquitted Padilla, Abesamis, Mercado and Esteban as the court found no evidence that the policemen conspired to kill or summarily execute Valino. Since Cabanlig itted shooting Valino, the burden is on Cabanlig to establish the presence of any circumstance that would relieve him of responsibility or mitigate the offense committed. The Sandiganbayan held that Cabanlig could not invoke self-defense or defense of a stranger. The only defense that Cabanlig could properly invoke in this case is fulfillment of duty. Cabanlig, however, failed to show that the shooting of Valino was the necessary consequence of the due performance of duty. The Sandiganbayan pointed out that while it was the duty of the policemen to stop the escaping detainee, Cabanlig exceeded the proper bounds of performing this duty when he shot Valino without warning. The Sandiganbayan found no circumstance that would qualify the crime to murder. Thus, the Sandiganbayan convicted Cabanlig only of homicide. The dispositive portion of the decision reads:

WHEREFORE, premises considered, accused CARLOS ESTOQUE PADILLA, MEINHART CRUZ ABESAMIS, LUCIO LADIGNON MERCADO and RADY SALAZAR ESTEBAN are hereby ACQUITTED of the crime charged. Accused RUPERTO CONCEPCION CABANLIG is found GUILTY beyond reasonable doubt of the crime of Page 131 of 141

Homicide and is hereby sentenced to suffer the indeterminate sentence of FOUR (4) MONTHS of arresto mayor, as minimum, to TWO (2) YEARS and FOUR (4) MONTHS of prision correccional, as maximum. He is further ordered to pay the heirs of Jimmy Valino the amount of FIFTY THOUSAND (P50,000.00) PESOS, and the costs. SO ORDERED.[5] On motion for reconsideration, Associate Justice Anacleto D. Badoy Jr. (Associate Justice Badoy) dissented from the decision. Associate Justice Badoy pointed out that there was imminent danger on the lives of the policemen when Valino grabbed the infallible Armalite [6] from Mercado and jumped out from the rear of the jeep. At a distance of only three feet from Cabanlig, Valino could have sprayed the policemen with bullets. The firing of a warning shot from Cabanlig was no longer necessary. Associate Justice Badoy thus argued for Cabanligs acquittal.

In a vote of four to one, the Sandiganbayan affirmed the decision. [7] The dispositive portion of the Resolution reads:

WHEREFORE, for lack of merit, the motion for reconsideration is hereby DENIED.[8]

The Issues

Cabanlig raises the following issues in his Memorandum:

WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT THE DEFENSE OF FULFILLMENT OF DUTY PUT UP BY CABANLIG WAS INCOMPLETE WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT CABANLIG COULD NOT INVOKE SELF-DEFENSE/DEFENSE OF STRANGER TO JUSTIFY HIS ACTIONS WHETHER THE SANDIGANBAYAN ERRED IN SENTENCING CABANLIG TO SUFFER IMPRISONMENT AND IN ORDERING HIM TO PAY THE AMOUNT OF P 50,000 TO THE HEIRS OF VALINO[9]

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The Courts Ruling

The petition has merit. We rule for Cabanligs acquittal.

Applicable Defense is Fulfillment of Duty

We first upon the issue of whether Cabanlig can invoke two or more justifying circumstances. While there is nothing in the law that prevents an accused from invoking the justifying circumstances or defenses in his favor, it is still up to the court to determine which justifying circumstance is applicable to the circumstances of a particular case.

Self-defense and fulfillment of duty operate on different principles. [10] Self-defense is based on the principle of self-preservation from mortal harm, while fulfillment of duty is premised on the due performance of duty. The difference between the two justifying circumstances is clear, as the requisites of self-defense and fulfillment of duty are different.

The elements of self-defense are as follows:

a)

Unlawful Aggression;

b)

Reasonable necessity of the means employed to prevent or repel it;

c)

Lack of sufficient provocation on the part of the person defending himself. [11]

On the other hand, the requisites of fulfillment of duty are:

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1.

The accused acted in the performance of a duty or in the lawful exercise of a right or office;

2.

The injury caused or the offense committed be the necessary consequence of the due performance of duty or the lawful exercise of such right or office. [12]

A policeman in the performance of duty is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm. [13] In case injury or death results from the policemans exercise of such force, the policeman could be justified in inflicting the injury or causing the death of the offender if the policeman had used necessary force. Since a policemans duty requires him to overcome the offender, the force exerted by the policeman may therefore differ from that which ordinarily may be offered in self-defense. [14] However, a policeman is never justified in using unnecessary force or in treating the offender with wanton violence, or in resorting to dangerous means when the arrest could be affected otherwise. [15]

Unlike in self-defense where unlawful aggression is an element, in performance of duty, unlawful aggression from the victim is not a requisite. In People v. Delima,[16] a policeman was looking for a fugitive who had several days earlier escaped from prison. When the policeman found the fugitive, the fugitive was armed with a pointed piece of bamboo in the shape of a lance. The policeman demanded the surrender of the fugitive. The fugitive lunged at the policeman with his bamboo lance. The policeman dodged the lance and fired his revolver at the fugitive. The policeman missed. The fugitive ran away still holding the bamboo lance. The policeman pursued the fugitive and again fired his revolver, hitting and killing the fugitive. The Court acquitted the policeman on the ground that the killing was done in the fulfillment of duty.

The fugitives unlawful aggression in People v. Delima had already ceased when the policeman killed him. The fugitive was running away from the policeman when he was shot. If the policeman were a private person, not in the performance of duty, there would be no self-defense because there would be no unlawful aggression on the part of the deceased. [17] It may even appear that the public officer acting in the fulfillment of duty is the aggressor, but his aggression is not unlawful, it being necessary to fulfill his duty. [18]

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While self-defense and performance of duty are two distinct justifying circumstances, selfdefense or defense of a stranger may still be relevant even if the proper justifying circumstance in a given case is fulfillment of duty. For example, a policemans use of what appears to be excessive force could be justified if there was imminent danger to the policemans life or to that of a stranger. If the policeman used force to protect his life or that of a stranger, then the defense of fulfillment of duty would be complete, the second requisite being present.

In People v. Lagata,[19] a jail guard shot to death a prisoner whom he thought was attempting to escape. The Court convicted the jail guard of homicide because the facts showed that the prisoner was not at all trying to escape. The Court declared that the jail guard could only fire at the prisoner in self-defense or if absolutely necessary to avoid the prisoners escape.

In this case, Cabanlig, Padilla, Abesamis, Mercado and Esteban were in the performance of duty as policemen when they escorted Valino, an arrested robber, to retrieve some stolen items. We uphold the finding of the Sandiganbayan that there is no evidence that the policemen conspired to kill or summarily execute Valino. In fact, it was not Valino who was supposed to go with the policemen in the retrieval operations but his two other cohorts, Magat and Reyes. Had the policemen staged the escape to justify the killing of Valino, the M16 Armalite taken by Valino would not have been loaded with bullets. [20] Moreover, the alleged summary execution of Valino must be based on evidence and not on hearsay.

Undoubtedly, the policemen were in the legitimate performance of their duty when Cabanlig shot Valino. Thus, fulfillment of duty is the justifying circumstance that is applicable to this case. To determine if this defense is complete, we have to examine if Cabanlig used necessary force to prevent Valino from escaping and in protecting himself and his co-accused policemen from imminent danger.

Fulfillment of Duty was Complete, Killing was Justified

The Sandiganbayan convicted Cabanlig because his defense of fulfillment of duty was found to be incomplete. The Sandiganbayan believed that Cabanlig exceeded the fulfillment of his duty when he immediately shot Valino without issuing a warning so that the latter would stop. [21]

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We disagree with the Sandiganbayan.

Certainly, an M16 Armalite is a far more powerful and deadly weapon than the bamboo lance that the fugitive had run away with in People v. Delima. The policeman in People v. Delima was held to have been justified in shooting to death the escaping fugitive because the policeman was merely performing his duty.

In this case, Valino was committing an offense in the presence of the policemen when Valino grabbed the M16 Armalite from Mercado and jumped from the jeep to escape. The policemen would have been justified in shooting Valino if the use of force was absolutely necessary to prevent his escape.[22] But Valino was not only an escaping detainee. Valino had also stolen the M16 Armalite of a policeman. The policemen had the duty not only to recapture Valino but also to recover the loose firearm. By grabbing Mercados M16 Armalite, which is a formidable firearm, Valino had placed the lives of the policemen in grave danger.

Had Cabanlig failed to shoot Valino immediately, the policemen would have been sitting ducks. All of the policemen were still inside the jeep when Valino suddenly grabbed the M16 Armalite. Cabanlig, Mercado and Esteban were hemmed in inside the main body of the jeep, in the direct line of fire had Valino used the M16 Armalite. There would have been no way for Cabanlig, Mercado and Esteban to secure their safety, as there were no doors on the sides of the jeep. The only way out of the jeep was from its rear from which Valino had jumped. Abesamis and Padilla who were in the drivers compartment were not aware that Valino had grabbed Mercados M16 Armalite. Abesamis and Padilla would have been unprepared for Valinos attack.

By suddenly grabbing the M16 Armalite from his unsuspecting police guard, Valino certainly did not intend merely to escape and run away as far and fast as possible from the policemen. Valino did not have to grab the M16 Armalite if his sole intention was only to flee from the policemen. If he had no intention to engage the policemen in a firefight, Valino could simply have jumped from the jeep without grabbing the M16 Armalite. Valinos chances of escaping unhurt would have been far better had he not grabbed the M16 Armalite which only provoked the policemen to recapture him and recover the M16 Armalite with greater vigor. Valinos act of grabbing the M16 Armalite clearly showed a hostile intention and even constituted unlawful aggression.

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Facing imminent danger, the policemen had to act swiftly. Time was of the essence. It would have been foolhardy for the policemen to assume that Valino grabbed the M16 Armalite merely as a souvenir of a successful escape. As we have pointed out in Pomoy v. People[23]:

Again, it was in the lawful performance of his duty as a law enforcer that petitioner tried to defend his possession of the weapon when the victim suddenly tried to remove it from his holster. As an enforcer of the law, petitioner was dutybound to prevent the snatching of his service weapon by anyone, especially by a detained person in his custody. Such weapon was likely to be used to facilitate escape and to kill or maim persons in the vicinity, including petitioner himself.

The Sandiganbayan, however, ruled that despite Valinos possession of a deadly firearm, Cabanlig had no right to shoot Valino without giving Valino the opportunity to surrender. The Sandiganbayan pointed out that under the General Rules of Engagement, the use of force should be applied only as a last resort when all other peaceful and non-violent means have been exhausted. The Sandiganbayan held that only such necessary and reasonable force should be applied as would be sufficient to conduct self-defense of a stranger, to subdue the clear and imminent danger posed, or to overcome resistance put up by an offender. The Sandiganbayan had very good reasons in steadfastly adhering to the policy that a law enforcer must first issue a warning before he could use force against an offender. A law enforcers overzealous performance of his duty could violate the rights of a citizen and worse cost the citizens life. We have always maintained that the judgment and discretion of public officers, in the performance of their duties, must be exercised neither capriciously nor oppressively, but within the limits of the law.[24]The issuance of a warning before a law enforcer could use force would prevent unnecessary bloodshed. Thus, whenever possible, a law enforcer should employ force only as a last resort and only after issuing a warning.

However, the duty to issue a warning is not absolutely mandated at all times and at all cost, to the detriment of the life of law enforcers. The directive to issue a warning contemplates a situation where several options are still available to the law enforcers. In exceptional circumstances such as this case, where the threat to the life of a law enforcer is already imminent, and there is no other option but to use force to subdue the offender, the law enforcers failure to issue a warning is excusable.

In this case, the embattled policemen did not have the luxury of time. Neither did they have much choice. Cabanligs shooting of Valino was an immediate and spontaneous reaction to Page 137 of 141

imminent danger. The weapon grabbed by Valino was not just any firearm. It was an M16 Armalite.

The M16 Armalite is an assault rifle adopted by the United Sates (US) Army as a standard weapon in 1967 during the Vietnam War. [25] The M16 Armalite is still a general-issue rifle with the US Armed Forces and US law enforcement agencies. [26] The M16 Armalite has both semiautomatic and automatic capabilities.[27] It is 39 inches long, has a 30-round magazine and fires high-velocity .223-inch (5.56-mm) bullets. [28] The M16 Armalite is most effective at a range of 200 meters[29] but its maximum effective range could extend as far as 400 meters. [30] As a high velocity firearm, the M16 Armalite could be fired at close range rapidly or with much volume of fire.[31] These features make the M16 Armalite and its variants well suited for urban and jungle warfare.[32] The M16 Armalite whether on automatic or semiautomatic setting is a lethal weapon. This high-powered firearm was in the hands of an escaping detainee, who had sprung a surprise on his police escorts bottled inside the jeep. A warning from the policemen would have been pointless and would have cost them their lives. For what is the purpose of a warning? A warning is issued when policemen have to identify themselves as such and to give opportunity to an offender to surrender. A warning in this case was dispensable. Valino knew that he was in the custody of policemen. Valino was also very well aware that even the mere act of escaping could injure or kill him. The policemen were fully armed and they could use force to recapture him. By grabbing the M16 Armalite of his police escort, Valino assumed the consequences of his brazen and determined act. Surrendering was clearly far from Valinos mind.

At any rate, Valino was amply warned. Mercado shouted hoy when Valino grabbed the M16 Armalite. Although Cabanlig itted that he did not hear Mercado shout hoy, Mercados shout should have served as a warning to Valino. The verbal warning need not come from Cabanlig himself.

The records also show that Cabanlig first fired one shot. After a few seconds, Cabanlig fired four more shots. Cabanlig had to shoot Valino because Valino at one point was facing the police officers. The exigency of the situation warranted a quick response from the policemen. According to the Sandiganbayan, Valino was not turning around to shoot because two of the three gunshot wounds were on Valinos back. Indeed, two of the three gunshot wounds were on Valinos back: one at the back of the head and the other at the left lower back. The Sandiganbayan, however, overlooked the location of the third gunshot wound. It was three Page 138 of 141

inches below the left clavicle or on the left top most part of the chest area based on the Medico Legal Sketch showing the entrances and exits of the three gunshot wounds. [33]

The Autopsy Report[34] confirms the location of the gunshot wounds, as follows:

GUNSHOT WOUNDS modified by embalming. 1. ENTRANCE ovaloid, 1.6 x 1.5 cms; with area of tattooing around the entrance, 4.0 x 3.0 cms.; located at the right postauricular region, 5.5 cms. behind and 1.5 cms. above the right external auditory meatus, directed forward downward fracturing the occipital bone, lacerating the right occipital portion of the brain and fracturing the right cheek bone and making an EXIT wound, 1.5 x 2.0 cms. located on right cheek, 4.0 cms. below and 3.0 cms.. in front of right external auditory meatus. 2. ENTRANCE ovaloid, 0.7 x 0.5 cms., located at the left chest; 6.5 cms. from the anterior median line, 136.5 cms. from the left heel directed backward, downward and to the right, involving soft tissues, fracturing the 3 rd rib, left, lacerating the left upper lobe and the right lower lobe and finally making an EXIT wound at the back, right side, 1.4 x 0.8 cms., 19.0 cms. from the posterior median line and 132.0 cms. from the right heel and grazing the medial aspect of the right arm.

3. ENTRANCE ovaloid, 0.6 x 0.5 located at the back, left side, 9.0 cms. from the posterior median line; 119.5 cms. from the left heel; directed forward, downward involving the soft tissues, lacerating the liver; and bullet was recovered on the right anterior chest wall, 9.0 cms. form the anterior median line, 112.0 cms. from the right heel.

The Necropsy Report[35] also reveals the following:

1. Gunshot Wound, entrance, 0.5 cm X 1.5 cms in size, located at the left side of the back of the head. The left parietal bone is fractured. The left temporal bone is also fractured. A wound of exit measuring 2 cms X 3 cms in size is located at the left temporal aspect of the head. 2. Gunshot [W]ound, entrance, 0.5 cm in diameter, located at the left side of the chest about three inches below the left clavicle. The wound is directed medially and made an exit wound at the right axilla measuring 2 X 2 cms in size. 3. Gunshot Wound, entrance, 0.5 cm in diameter located at the left lower back above the left lumbar. The left lung is collapsed and the liver is lacerated. Particles of lead [were] recovered in the liver tissues. No wound of exit. Page 139 of 141

Cause of Death: Cerebral Hemorrhage Secondary To Gunshot Wound In The Head

The doctors who testified on the Autopsy [36] and Necropsy[37] Reports itted that they could not determine which of the three gunshot wounds was first inflicted. However, we cannot disregard the significance of the gunshot wound on Valinos chest. Valino could not have been hit on the chest if he were not at one point facing the policemen.

If the first shot were on the back of Valinos head, Valino would have immediately fallen to the ground as the bullet from Cabanligs M16 Armalite almost shattered Valinos skull. It would have been impossible for Valino to still turn and face the policemen in such a way that Cabanlig could still shoot Valino on the chest if the first shot was on the back of Valinos head.

The most probable and logical scenario: Valino was somewhat facing the policemen when he was shot, hence, the entry wound on Valinos chest. On being hit, Valino could have turned to his left almost falling, when two more bullets felled Valino. The two bullets then hit Valino on his lower left back and on the left side of the back of his head, in what sequence, we could not speculate on. At the very least, the gunshot wound on Valinos chest should have raised doubt in Cabanligs favor.

Cabanlig is thus not guilty of homicide. At most, Cabanlig, Padilla, Abesamis, Mercado and Esteban are guilty only of gross negligence. The policemen transported Valino, an arrested robber, to a retrieval operation without handcuffing Valino. That no handcuffs were available in the police precinct is a very flimsy excuse. The policemen should have tightly bound Valinos hands with rope or some other sturdy material. Valinos cooperative demeanor should not have lulled the policemen to complacency. As it turned out, Valino was merely keeping up the appearance of good behavior as a prelude to a planned escape. We therefore recommend the filing of an istrative case against Cabanlig, Padilla, Abesamis, Mercado and Esteban for gross negligence.

WHEREFORE, we REVERSE the decision of the Sandiganbayan in Criminal Case No. 19436 convicting accused RUPERTO CONCEPCION CABANLIG of the crime of homicide. We ACQUIT RUPERTO CONCEPCION CABANLIG of the crime of homicide and ORDER his Page 140 of 141

immediate release from prison, unless there are other lawful grounds to hold him. We DIRECT the Director of Prisons to report to this Court compliance within five (5) days from receipt of this Decision. No costs.

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