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PEOPLE OF THE PHILIPPINES, Plaintiff-Appelleevs.RESURRECTION JUANILLO MANZANO, JR. and REZOR JUANILLO MANZANO, Accused

REZOR JUANILLO MANZANO, Accused-Appellant. G.R. No. 217974

THIRD DIVISION March 5, 2018

 

 

D E C I S I O N

MARTIRES, J.:

This resolves the appeal of accused-appellant Rezor Juanillo Manzano (accused-appellant) from the 29 October 2014 Decision¹ of the Court of Appeals (CA), Twentieth Division in CA-G.R. CR-HC No. 01473 affirming in toto the 17 April 2012 Decision² of the Regional Trial Court (RTC), Branch 12, San Jose, Antique, finding him guilty beyond reasonable doubt of Murder under Article (Art.) 248 of the Revised Penal Code (RPC).

THE FACTS

The accused-appellant and his elder brother Resurrecion Manzano (Resurrecion) were charged with murder before the RTC of San Jose, Antique, in an Information³ docketed as Crim. Case No. 10-07-8009, the accusatory portion of which reads:

That on or about the 19th day of March 2010, in the Municipality of Hamtic, Province of Antique, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then armed with knives, conspiring, confederating, and mutually helping one another, with intent to kill, did then and there, willfully, unlawfully, and feloniously attack, assault, and stab with said knives one Lucio Silava, thereby inflicting upon the latter wounds on his body which caused his instantaneous death.

With qualifying circumstance of treachery and abuse of superior strength.

Contrary to the provisions of Article 248 of the Revised Penal Code, as amended.

The parties agreed to have an inverted trial after the accused-appellant who, pleading not guilty during the arraignment, raised the justifying circumstance of self-defense. Resurrecion remained at large.

To prove his claim of self-defense, the accused-appellant himself testified. SP02 Roberto Javier (SP02 Javier) of the Hamtic police office took the witness stand to prove that the accused-appellant voluntarily surrendered.

The prosecution tried to prove its case against the accused-appellant by calling to the witness stand Dr. Ma. Eva D. Pacificador (Dr. Pacificador), Victoria N. Silava (Victoria), Atty. Rean S. Sy (Atty. Sy), and Luisa P. Monteclaro (Luisa).

Version of the Defense

At about 9:30 p.m. on 19 March 2010, while the accused-appellant was home sitting by the window, he saw Lucio Silava (Lucio) throwing stones at his house. The electric lamppost was lighted, thus, the accusedappellant, who was then eighteen years old, was sure that it was Lucio.⁴

The accused-appellant immediately went out to inquire from Lucio why he was throwing stones at his house but Lucio threw a stone at him that hit his right knee and caused him to fall down. Lucio rushed towards the accused-appellant to stab him with a knife but was unsuccessful as they grappled for its possession. It was at that instance that the accused-appellant called out to Resurrecion, who was home that time, to run away so that he would not be involved. Because Lucio was very drunk, the accusedappellant was able to take hold of the knife, but blacked out and started stabbing Lucio. Thereafter, the accused-appellant ran away and proceeded to the house of Reno Manzano (Reno), an elder brother, at Barangay San Angel, San Jose, Antique, where he also met Resurrecion. The following day, the accused-appellant surrendered to the police authorities.⁵

The accused-appellant had known Lucio for eight years already since the latter's house was in front of his house and were separated only by the road. Accused-appellant was as tall as Lucio but the latter had a bigger body build. Resurrecion had a dislocated right shoulder and a smaller build than that of Lucio and the accused-appellant.⁶

Version of the Prosecution

At about 9:00 p.m. on 19 March 2010, the spouses Lucio and Victoria were inside their store fronting the accused-appellant's house. Lucio was having his dinner at the kitchen inside the store while Victoria was watching the store when the accused-appellant and Resurrecion called out from the gate saying that they would buy cigarettes. Because the gate leading to the store was already closed, Lucio told the accused-appellant and Resurrecion to come.⁷

Resurrecion stood outside the store and told Victoria that he wanted to buy Fortune white cigarettes and handed her ₱20.00. The accused-appellant entered the store and proceeded to where Lucio was having dinner. After realizing that she had no more stock of the Fortune white cigarette, Victoria told Resurrecion who, in reply, said that he would no longer buy cigarettes and then proceeded towards the kitchen. Thereafter, Victoria heard Lucio ask, "What wrong have I committed?" Victoria rushed to the kitchen and there saw Lucio bloodied and leaning on the door, while the accusedappellant and Resurrecion were stabbing him.⁸

Victoria went out of the store shouting for help and saying that the accused-appellant and Resurrecion were stabbing Lucio. When Victoria went back inside, she saw Lucio run outside the store but still within the fenced premises, and the accused-appellant and Resurrecion were going after him. From where she stood, Victoria saw Resurrecion hold Lucio's hands while the accused-appellant, who was positioned behind Lucio, held Lucio’s body with one arm while with his other hand stabbed Lucio’s back. When Resurrecion released his grip on Lucio, the latter fell face down but the accused-appellant and Resurrecion continued to stab him causing Victoria to utter, "I will let you eat the whole body of my husband alive." The accused-appellant and Resurrecion thereafter ran towards the direction of the farm.⁹

Lucio was brought to the hospital but Victoria had to stay behind to find money for his medical expenses. On her way to the hospital, Victoria was informed that Lucio had died. Luisa, a cousin of Lucio, took pictures of the dead body. Victoria had the pictures¹⁰ developed and secured Lucio's death certificate.¹¹ Victoria incurred a total of ₱15,000.00¹² for the funeral expenses.¹³

On 23 March 2010, Dr. Pacificador conducted a postmortem examination on the body of Lucio, the results of which follow:

Left Anterior Thorax

StabWound # 1 - Horizontal in direction about 3 cm in length located at the left anterior chest below the left clavicle penetrating the upper lobe of the left lung and aorta.

StabWound # 2 - Vertical in direction about 3 cm in length located below wound #1 resulting into fracture of 3^rd rib.

Right Anterior Thorax

StabWound # 3 - Vertical in direction about 2 cm in length on the left shoulder, non-penetrating.

StabWound # 4 - Vertical in direction about 4.5 cm in length located below right clavicle penetrating the upper lobe of the right lung.

StabWound # 5 - Vertical in direction about 4 cm in length below the sternum penetrating the liver.

StabWound # 6 - Vertical in direction about 4.5 cm in length about 3 cm below wound # 5 penetrating the liver.

StabWound # 7 - Vertical in direction about 1.5 cm in length below wound # 6 non-penetrating.

Extremities

StabWound # 8 - Vertical in direction about 3.5 cm in length located on the left upper arm going through the axilla.

StabWound# 9 - Horizontal in direction about 2.5 cm in length on the left lower arm below the left antecubital fossa, nonpenetrating

StabWound# 10 - Horizontal in direction about 3 cm in length just below wound # 9 left lower arm.

StabWound # 11 - Horizontal in direction about 2 cm in length located below left wrist, non-penetrating.

Posterior Thorax

StabWound # 12 - Vertical in direction about 2.5 cm in length just below the neck in between scapula, non-penetrating.

StabWound # 13 - Vertical in direction about 5 cm in length just below wound# 12, non-penetrating.

StabWound # 14 - Vertical in direction about 2 cm in length below wound# 13, non-penetrating.

StabWound # 15 - Horizontal in direction about 1.5 cm in length on the right lumbar area, non-penetrating.

Cause of death:

Hypovolemic Shock secondary to Hemorrhage secondary to Multiple Stab Wounds.¹⁴

It was a week after the stabbing incident that Atty. Sy took pictures¹⁵ of the place where Lucio was attacked. He saw splatters of dried blood inside the store and within the fenced perimeter enclosing the crime scene.¹⁶

The Ruling of the RTC

According to the RTC, a careful and deeper examination of the facts and circumstances tend to contradict the accused-appellant's version of the incident and his claim that he acted in self-defense. In so ruling, the RTC considered the following: that if there was no intention on the part of the accused-appellant and Resurrecion to kill Lucio, they could have easily overpowered him because he was very drunk at that time; it was not convinced that Lucio hit the accused-appellant on his right knee causing him to fall since the latter failed to present a medical certificate notwithstanding his contention that he was brought by a police officer to a doctor for his knee injury; it was not satisfied with the accused-appellant's version that after he fell down, Lucio held his neck and stabbed him because not once was the accused-appellant hit; the number of stab wounds sustained by Lucio negates self-defense; the serious injuries sustained by Lucio demonstrate the accused-appellant's intent to kill; the splattered blood inside the store and on the bamboo slats serving as wall of the kitchen are proofs that the incident started at the kitchen of Lucio’s store and continued outside but still within the fenced perimeter; that when the accused-appellant blacked out, he was still able to shout at Resurrecion to run away so as not to be involved in the incident; the portrayal on how the accused-appellant singlehandedly stabbed Lucio was not worthy of credence; the claim of the accused-appellant that he hit Lucio frontally was denied by the postmortem examination results; the only plausible explanation for Lucio's back injuries was that these were inflicted by either the accused-appellant or Resurrecion or by both of them; and the accused-appellant had not assailed or contradicted, by testimonial or documentary evidence, the truthfulness and trustworthiness of Victoria's testimony.¹⁷

On the one hand, the R TC found that the accused-appellant and Resurrecion conspired as shown by their concerted action of surprising Lucio in the kitchen and, without justifiable reason, helping each other assault their victim. Moreover, the RTC ruled that the commission of the felony was attended by the aggravating circumstance of noctumity which facilitated the assailants' escape. According to the RTC, it was unfortunate that this circumstance was not properly appreciated as this was not alleged in the information.¹⁸

The RTC, however, was not convinced that the accused-appellant voluntarily surrendered considering the following reasons: he fled from the locus criminis and proceeded to Reno's house in San Jose instead of going to the Hamtic police station; he did not surrender to the San Jose police; and it was Reno who informed the Hamtic police station of the accused-appellant's presence in San Jose, thus, the policemen proceeded to Reno's house and took custody of the accused-appellant.

The dispositive portion of the RTC decision reads:

PREMISES CONSIDERED, judgment is hereby rendered convicting accused REZORMANZANOy JUANILLO, beyond reasonable doubt, of Murder under Art. 248 of the Revised Penal Code. Accordingly, he is hereby sentenced to suffer the penalty of reclusionperpetua.

He is also ordered to indemnify the legal heirs of Lucio Silava the amount of ₱75,000.00 for the death of the said victim and to pay the said legal heirs actual expenses in the amount of ₱15,000.00 as well as moral damages amounting to ₱25,000.00 and to pay the costs.

SO ORDERED.¹⁹

Feeling aggrieved with the decision of the RTC, the accused-appellant appealed before the CA.

The Ruling of the CA

The CA noted the absence of unlawful aggression on the part of Lucio which made the claim of self-defense unavailable. According to the CA, the accused-appellant must rely on the strength of his evidence and not on the weakness of the prosecution's evidence since he had admitted that he killed Lucio. The CA held that there was no proof that the RTC failed to appreciate facts and circumstances which would have merited the accused-appellant's acquitta1.²⁰

The CA sustained the ruling of the RTC that treachery and abuse of superior strength attended the killing of Lucio, and that the accused-appellant had not voluntarily surrendered to the police authorities.²¹

In view of its findings, the CA affirmed in toto the decision of the RTC, thus:

WHEREFORE, the appeal is hereby DENIED. The Decision dated March 20, 2012 of the RTC, Branch 12, San Jose, Antique in Criminal Case No. 10-07-8009 is hereby AFFIRMED in toto.

SO ORDERED.²²

ISSUES

I

THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE INCONSISTENT AND IMPROBABLE TESTIMONY OF VICTORIA SILAVA.

II

THE TRIAL COURT ERRED IN NOT APPRECIATING INCOMPLETE SELF-DEFENSE BY ACCUSED-APPELLANT REZOR MANZANO, AS A PRIVILEGED MITIGATING CIRCUMSTANCE.

III

THE TRIAL COURT ERRED IN FINDING THAT THE ACCUSEDAPPELLANT ACTED WITH ABUSE OF SUPERIOR STRENGTH.

IV

THE TRIAL COURT ERRED IN NOT APPRECIATING THE ACCUSED-APPELLANT'S VOLUNTARY SURRENDER AS A MITIGATING CIRCUMSTANCE.²³

OUR RULING

The appeal does not deserve any merit.

The findings of the RTC

as to the credibility of

witnesses should be

respected especially

when these are affirmed

by the CA.

It has been trenchantly maintained in a catena of cases that when the issues involve matters of credibility of witnesses, the findings of the trial court, its calibration of the testimonies, and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings, are accorded high respect, if not conclusive effect.²⁴ The assessment of the credibility of the witnesses and their testimonies is best undertaken by the trial court because of its unique opportunity to observe the witnesses first hand and to note their demeanor, conduct, and attitude under gruelling examination. These factors are the most significant in evaluating the sincerity of witnesses and in unearthing the truth, especially in the face of conflicting testimonies.²⁵ The factual findings of the R TC, therefore, are accorded the highest degree of respect especially if the CA adopted and confirmed these,²⁶ unless some facts or circumstances of weight were overlooked, misapprehended or misinterpreted as to materially affect the disposition of the case.²⁷ In the absence of substantial reason to justify the reversal of the trial court’s assessment and conclusion, as when no significant facts and circumstances are shown to have been overlooked or disregarded, the reviewing court is generally bound by the former’s findings.²⁸

It must be noted that it is a general rule in criminal cases that an examination of the entire records of a case may be explored for the purpose of arriving at a correct conclusion; as an appeal in criminal cases throws the whole case open for review, it being the duty of the appellate court to correct such error as may be found in the judgment appealed from, whether they are made the subject of the assignment of errors or not.²⁹ It is for this reason that the Court has painstakingly reviewed the records of this case; yet, it found no reason to depart from the well-entrenched rule that the findings of the R TC as to the credibility of witnesses should not be disturbed considering the absence of any showing that it had overlooked a material fact that otherwise would change the outcome of the case or had misunderstood a circumstance of consequence in their evaluation of the credibility of the witnesses.³⁰

The testimony of Victoria identifying the accused-appellant and Resurrecion as the ones who assaulted Lucio was positive, convincing, and straightforward, viz:

Q. You said a while ago that your store is lighted with bulb, what is the voltage of the electric bulb?

A. Ten (10) watts.

Q. So, what did you do after you heard your husband said those words?

A. I immediately went towards the door of the store towards the kitchen area and I saw my husband leaning on the wall full of blood and the two accused simultaneously stabbing my husband.

Q. So both of them are holding a knife?

A. Yes, sir.

Q. And you saw both of them stabbing your husband?

A. Yes, sir.

Q. Please tell us how near is your door to the [location] of your husband when he was stabbed?

A. (Witness as this juncture pointed at the distance from the witness stand to the place occupied by Atty. Rivero which is estimated to be about two (2) meters, as agreed upon by the prosecution and the defense, as the distance from the door to the [location] where the husband was stabbed.)

Q. And when you came out of your door that was your distance from your husband after he was being stabbed?

A. Yes, sir.

Q. And please describe to us what did you do immediately after coming out of that door?

A. From the door, I saw my husband leaning on the wall full of blood with the two accused simultaneously stabbing him.

Q. And you saw that there was no structure blocking your side?

A. No, sir.

Q. While they were stabbing your husband, can you tell us if the two accused uttered any words?

A. Nothing, sir.

Q. Can you recall while standing how many times did the two accused stab your husband?

A. I cannot count how many times the two accused stabbed my husband but I saw both of them stabbing my husband.

Q. At that time your husband is facing you?

A. Yes, sir because he was leaning on the wall.

Q. What did you do next?

A. After that I ran out of [the] house and ran towards the fence and shouted that Resurrecion and Rezor are stabbing my husband and I went back inside the house after saying those words.

Q. When you said those words you came back to your house, please tell us when you came back to your house, you entered the main gate or front of the road?

A. Just in front of our store when I shouted for help.

Q. While standing on the road facing your husband, please tell us what did you see?

A. While I was standing on the road, I saw Resurrecion holding my husband and holding [his] hands while Rezor was behind my husband and one hand was holding the body of my husband and the other hand was stabbing at the back of my husband.

Q. At that point did you see on what portion of the body of your husband was Rezor stabbing him?

A. At the back.

Q. How far were you from them?

A. Very near. (x x x two (2) meters, as agreed upon by both counsel)

Q. Please tell us, when the two accused Resurrecion and Rezor were holding your husband and Resurrecion was stabbing on the back, in what portion were they located?

A. In front of our store.

COURT:

Q. Are you telling the court that the two accused were already outside the store?

A. Yes, sir.

ATTY. SY:

Q. Outside the store but within the gate?

A. Yes, sir.

COURT:

Q. From inside the kitchen, can you tell the court where did the three pass by?

A. My husband was able to run outside the house.

Q. So when your husband ran outside the house, the two accused followed him?

A. Yes, sir.

Q. When you saw your husband and the two accused in that position they were directly in front of your store but still within the gate?

A. Yes, sir.

Q. Is this store lighted?

A. Yes, sir, it is lighted with a bulb.

Q. And from your position you can properly see their faces?

A. Yes, sir.

Q. Tell us what happened next?

A. At that particular moment, I saw Resurrecion holding the two hands of my husband while Rezor's [other] hand was holding my husband while the other hand was stabbing my husband. I cannot recall which hand was used by him in stabbing my husband.

x x x x

Q. So, are you telling the court that Rezor was in the grip of your husband?

A. Yes. Sir.

x x x x

Q. Now, do you realize that both injuries of your husband were in [the] front portion of his body?

A. Yes, sir.

Q. About how many times did you see Resurrecion stab your husband while he was at the back of your husband?

A. I saw Rezor stabbed my husband once and that was the time that Resurrecion released my husband from his grip and so my husband fell to the ground facing down.

x x x x

ATTY. SY:

x x x x

Q. So, when your husband fell down, what did you do next?

A. Rezor and Resurrecion helped each other in stabbing him and at that point in time I told Rezor and Resurrecion "I will let you eat the whole body of my husband alive," and then that was the time the two accused ran away."³¹

It was clear from the testimony of Victoria that she was able to personally witness when the accused-appellant and Resurrecion assaulted Lucio; and that she could not be mistaken as to the assailants' identity since the place where the crime happened was well-lighted.

Accused-appellant tried to dent the credibility of Victoria by asserting that she did not actually see the scuffle between him and Lucio as verified by her admission during the cross-examination by the defense.³²

The contention of the accused-appellant is without merit. The records bear out that Victoria admitted that right after she heard Lucio utter "What wrong did I commit," she immediately went to the kitchen and found her husband leaning on the kitchen door, bloodied, while the accused-appellant and Resurrecion were stabbing him. Contrary to the claim of the accused-appellant, a review of the testimony of Victoria would show that what she claimed she did not witness was the scuffle, if there was any, between Lucio and the accused-appellant prior to her hearing her husband utter "What wrong did I commit?" It was also pointed out that Victoria had claimed that she did not hear anything from the accused-appellant and Resurrecion before she heard Lucio utter these words in a soft and pleading manner, hence, accentuating the fact that no such scuffle had taken place.

In the same vein, the position of the accused-appellant that Victoria could not have seen the actions of Lucio and the accused-appellant as she had gone out of the house to ask for help,³³ fails to persuade. Victoria stated that after running out to the street and shouting for help, she went back inside the fenced premises of the store; thus, she was able to see Lucio run outside from the kitchen, and saw the accused-appellant and Resurrecion follow Lucio, get hold of him, and stab him again.³⁴

In stark contrast to the allegation of the accused-appellant that Victoria's statements before the trial court were inconsistent and incredible, a perspicacious review of her testimony sustains a finding that her narration of what happened on that fateful day of 19 March 2010 was plausible, being consistent in all important details. For sure, the records are bereft of any showing that Victoria's testimony was inspired by ill motive or was attended by bad faith. Jurisprudence holds that when there is no evidence to show any improper motive on the part of the witness to testify falsely against the accused or to pervert the truth, the logical conclusion is that no such motive exists, and that the former's testimony is worthy of full faith and credit.³⁵

We underscore that, except for the alleged inconsistencies which to the mind of the Court are inconsequential, the accused-appellant failed to proffer any convincing and material variations in the testimony of Victoria that would warrant the Court to reverse the RTC’s finding as to her credibility. It is settled in this jurisdiction that as long as the testimony of the witness is coherent and intrinsically believable as a whole, discrepancies in minor details and collateral matters do not affect the veracity or detract from the essential credibility of the witnesses' declarations.³⁶ Of utmost meaning to this case is the ruling laid down in Velasquez v. People,³⁷ viz:

Jurisprudence is replete with clarifications that a witness' recollection of [a] crime need not be foolproof: "Witnesses cannot be expected to recollect with exactitude every minute detail of an event. This is especially true when the witnesses testify as to facts which transpired in rapid succession, attended by flurry and excitement." This is especially true of a victim's recollection of his or her own harrowing ordeal. One who has undergone a horrifying and traumatic experience "cannot be expected to mechanically keep and then give an accurate account" of every minutiae.

The accused-appellant

assumes the burden of

establishing his plea of

self-defense by credible,

clear, and convincing

evidence.

Jurisprudence instructs that an accused who pleads a justifying circumstance under Article 11³⁸ of the Revised Penal Code admits to the commission of acts, which would otherwise engender criminal liability.³⁹ Corollary thereto, the rule consistently adhered to in this jurisdiction is that when the accused admit that they are the authors of the death of the victim, and their defense is anchored on self-defense, it becomes incumbent upon them to prove the justifying circumstance to the satisfaction of the court.⁴⁰ With this admission, the burden of evidence is shifted to the appellant to prove that all the essential elements of self-defense are present.⁴¹ Verily, to invoke self-defense effectually, 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.⁴² Self-defense, to be successfully invoked, must be proven by clear and convincing evidence that excludes any vestige of criminal aggression on the part of the person invoking it.⁴³ Conviction follows if the evidence for the accused fails to prove the existence of justifying circumstances.⁴⁴

Accused-appellant contends that he merely repelled the unlawful aggression of Lucio, viz: when Lucio threw a stone at him that hit his knee; and when Lucio rushed towards him to stab him. Additionally, accusedappellant avers that his testimony was credible that he alone inflicted the stab wounds on Lucio.⁴⁵

To successfully invoke self-defense, an accused must establish: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel such aggression; and (3) lack of sufficient provocation on the part of the person resorting to self-defense.⁴⁶

On the first element, the consistent teaching by the Court on unlawful aggression is as follows:

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. 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. Accordingly, the accused must establish the concurrence of three elements of unlawful aggression, namely: (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.

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.⁴⁷

The evidence before the Court palpably lend negative credence to the presence of unlawful aggression. Primarily, when compared to Victoria's testimony which withstood the crucible of intense cross-examination by the defense and the clarificatory questioning by the trial court, accused-appellant’s testimony was not only incongruous with the evidence on record but also improbable.

The version of the defense was that the unlawful aggression began with Lucio who was outside the accused-appellant's house throwing stones at its roof. Allegedly, Lucio likewise threw a stone at the accused-appellant when he came out of the house which hit his knee and caused him to fall down. Lucio was about to stab the accused-appellant with a knife but then a scuffle ensued for its possession. When the accused-appellant got hold of the knife, he "blacked out" and stabbed Lucio several times.

The defense’s version of the events is swiftly denied by the prosecution’s pictures⁴⁸ showing Lucio’s blood splattered in the kitchen of Victoria's store and at the fenced premises. These pictures are silent evidence that confirm the truth of Victoria's testimony and easily weaken the defense's version that when the accused-appellant acted in self-defense to Lucio’s unlawful aggression, they were at the road in front of accused-appellant’s house. Where the physical evidence on record runs counter to the testimonies of witnesses, the primacy of the physical evidence must be upheld.⁴⁹

It is noteworthy that the accused-appellant has neither witness nor evidence to fortify his claim that the unlawful aggression started with Lucio. Self-defense cannot be justifiably appreciated when uncorroborated by independent and competent evidence or when it is extremely doubtful by itself.⁵⁰ The fact that Resurrecion is still in hiding instead of giving his testimony before the trial court to boost the theory proffered by the accused-appellant well confirms the finding that the defense's version of the events was contrived.

To amplify his position that he acted in self-defense, the accusedappellant tried to make issue of his absence of motive to stab Lucio. The accused-appellant basically anchored his position on the ruling laid down by the Court in Borguilla v. Court of Appeals, ⁵¹ that "the absence of motive is important in ascertaining the truth as between two antagonistic theories or versions of the killing. Herein, it was the victim who had reason to harm the accused."⁵²

The quoted ruling in Borguilla does not find meaning in this case considering that the identity of the accused-appellant as the assailant of Lucio has been firmly established by the prosecution. For sure, even the accused-appellant admitted that he stabbed Lucio several times after he blacked out. In Borguilla, because of the contradictory accounts of the event by both parties, the Court resorted to searching for facts or circumstances which could be used as valuable aids in evaluating the probability or improbability of a testimony; thus, the Court had appreciated the presence of motive of the victim to harm the accused in ascertaining which of the versions was true. In the present case, however, both the testimonial and documentary evidence of the prosecution demonstrably disproved the defense's version that unlawful aggression was initiated by Lucio. Also revealing was that, in contrast to the Borguilla ruling, there was conspicuous dearth of evidence to establish that Lucio had motive to kill the accused-appellant.

Notwithstanding the accused-appellant's contention that he has no motive in killing Lucio, we point out that motive is not material in this case. As a general rule, proof of motive for the commission of the offense charged does not show guilt; and the absence of proof of such motive does not establish the innocence of accused for the crime charged such as murder.⁵³ To emphasize, "motive is irrelevant when the accused has been positively identified by an eyewitness. Intent is not synonymous with motive. Motive alone is not a proof and is hardly ever an essential element of a crime."⁵⁴

It is vigorously underscored that the pith and soul of the justifying circumstance of self-defense is the presence of unlawful aggression; thus, the absence of this requisite readily converts the claim of self-defense into nothingness even with the existence of the other elements because the two other essential elements of self-defense would have no factual and legal bases without any unlawful aggression to prevent or repel.⁵⁵ As case law puts it, there can be no self-defense unless the victim committed unlawful aggression against the person who resorted to self-defense.⁵⁶

Accused-appellant's plea of self-defense is controverted by the nature, number, and location of the wounds inflicted on the victim, since the gravity of said wounds is indicative of a determined effort to kill and not just to defend.⁵⁷ The postmortem examination⁵⁸ conducted by Dr. Pacificador on the body of Lucio revealed that he sustained fifteen wounds, four of which were fatal, and that the cause of his death was hypovolemic shock secondary to hemorrhage secondary to multiple stab wounds. The findings of Dr. Pacificador justify a declaration that there was undeniable intent on the part of the accused-appellant to kill Lucio.

The absence of unlawful aggression on the part of Lucio in this case unmistakably belies the accused-appellant’s claim of self-defense, whether complete or incomplete. In view of this, the Court finds no reason to further discuss the other elements of the justifying circumstance of self-defense and will proceed to determine the offense committed by the accused-appellant.

The crime committed by

the accused-appellant

was murder.

The accused-appellant averred that the trial court erred in convicting him of murder; he maintained that he was guilty only of homicide in view of the absence of the qualifying circumstances of treachery and abuse of superior strength .⁵⁹

The crime of murder, under Article (Art.) 248⁶⁰ of the Revised Penal Code (RPC), is committed by any person who, not falling within the provisions of Art. 246⁶¹ of the same Code, shall kill another with treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity.⁶² Jurisprudence provides that to warrant a conviction for the crime of murder, the following essential elements must be present: (a) that a person was killed; (b) that the accused killed him or her; (c) that the killing was attended by any of the qualifying circumstances mentioned in Art. 248 of the RPC; and (d) that the killing is not parricide or infanticide.⁶³

There is no question that the first, second, and fourth elements are present in this case. It is the resolution of the issue on whether the qualifying circumstances of treachery and abuse of superior strength that attended the killing of Lucio can determine whether the accused-appellant should be held liable for murder. The presence of any one of the circumstances enumerated in Article 248 of the Code is sufficient to qualify a killing as murder.⁶⁴ On the one hand, if the qualifying circumstances are not present or cannot be proven beyond reasonable doubt, the accused may only be convicted with homicide under Art. 249⁶⁵ of the RPC.⁶⁶

Both the trial and the appellate courts appreciated treachery and abuse of superior strength in convicting the accused-appellant of murder.

Treachery is present when the offender commits any of the crimes against a person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.⁶⁷ Treachery is not presumed but must be proved as conclusively as the crime itself.⁶⁸ Treachery, whenever alleged in the information and competently and clearly proved, qualifies the killing and raises it to the category of murder.⁶⁹

For the qualifying circumstance of treachery to be appreciated, the following elements must be shown: (1) the employment of means, method, or manner of execution would ensure the safety of the malefactor from the defensive or retaliatory acts of the victim, no opportunity being given to the latter to defend himself or to retaliate; and (2) the means, method, or manner of execution was deliberately or consciously adopted by the offender.⁷⁰

Relative to the first element, the legal teaching consistently upheld by the Court is that the essence of treachery is when the attack comes without a warning and in a swift, deliberate, and unexpected manner, affording the hapless, unarmed, and unsuspecting victim no chance to resist or escape the sudden blow.⁷¹

As to the second element, jurisprudence requires that there must be evidence to show that the accused deliberately or consciously adopted the means of execution to ensure its success⁷² since unexpectedness of the attack does not always equate to treachery.⁷³ The means adopted must have been a result of a determination to ensure success in committing the crime.⁷⁴

Additionally, in murder or homicide, the offender must have the intent to kill; otherwise, the offender is liable only for physical injuries.⁷⁵ The evidence to prove intent to kill may consist of, inter alia, the means used; the nature, location, and number of wounds sustained by the victim; and the conduct of the malefactors before, at the time of or immediately after the killing of the victim.⁷⁶

The prosecution established that the accused-appellant and Resurrecion deliberately made it appear to Victoria and Lucio on the night of 19 March 2010, that their main purpose in coming to the store was to buy cigarettes. They came at night when neighbors were probably asleep which would make it impossible for them to lend assistance to Lucio. Once the accused-appellant and Resurrecion were allowed to enter the premises, the accused-appellant immediately went inside the store and proceeded to the kitchen where Lucio was having dinner. In the meantime, Resurrecion engaged Victoria in a talk by pretending that he was buying cigarettes but he, too, forthwith went to the kitchen upon being told by Victoria that she had run out of the cigarette he was looking for. Thereafter, Victoria heard Lucio uttering softly, "What wrong have I committed"; and then she saw her bloodied husband being stabbed by the accused-appellant and Resurrecion. The absence of scuffle among Lucio, the accused-appellant, and Resurrecion substantiate the finding that the attack was swift and deliberate so that the unarmed and unsuspecting Lucio had no chance to resist or escape the blow from his assailants.

The intent to kill by the accused-appellant and Resurrecion was confirmed by the fact that they were armed with knives when they attacked Lucio who sustained a total of fifteen wounds. Despite the fact that Lucio was already bleeding from his wounds, he was able to run away from his assailants who pursued him. Resurrecion stood in front of Lucio while the accused-appellant held him at the back and both assailants continued to stab him. According to Dr. Pacificador, there were four fatal wounds inflicted on Lucio, i.e., wounds numbered 1, 4, 5, and 6 which penetrated his major organs.⁷⁷

It must be pointed out that since treachery had qualified the crime to murder, the generic aggravating circumstance of abuse of superior strength is necessarily included in the former.⁷⁸

The RTC and the CA

were correct in not

appreciating the

mitigating circumstance

of voluntary surrender.

For voluntary surrender to be appreciated as a mitigating circumstance, the following elements must be present, to wit: (1) the accused has not been actually arrested; (2) the accused surrenders himself to a person in authority or the latter's agent; and (3) the surrender is voluntary.⁷⁹ The essence of voluntary surrender is spontaneity and the intent of the accused to give himself up and submit himself to the authorities, either because he acknowledges his guilt or he wishes to save the authorities the trouble and expense that may be incurred for his search and capture.⁸⁰

Records show that it was Reno who went to the Hamtic police station to request that they take custody of the accused-appellant who was then in his house.⁸¹ Undoubtedly, when the police went to Reno's house at San Angel, San Jose, Antique, it was for the purpose of arresting the accused-appellant and not because he was surrendering to them voluntarily. Simply put, Reno merely facilitated the accused-appellant's arrest. Thus, without the elements of voluntary surrender, and where the clear reasons for the supposed surrender are the inevitability of arrest and the need to ensure his safety, the surrender is not spontaneous and therefore cannot be characterized as "voluntary surrender" to serve as a mitigating circumstance.⁸²

The penalty to be imposed

upon the accused-appellant

Pursuant to Art. 248 of the RPC, the penalty for murder is reclusion perpetua to death. Applying Art. 63(2)⁸³ of the RPC, the lesser of the two indivisible penalties, i.e., reclusion perpetua, shall be imposed upon the accused-appellant in view of the absence of any mitigating or aggravating circumstance that attended the killing of Lucio.

Following the jurisprudence laid down by the Court in People v. Jugueta, ⁸⁴ accused-appellant shall be held liable for civil indemnity, moral damages, and exemplary damages in the amount of ₱75,000.00 each. It was also ruled in Jugueta that when no documentary evidence of burial or funeral expenses is presented in court, the amount of ₱50,000.00 as temperate damages shall be awarded. In this case, Victoria showed that she spent a total of ₱13,000.00 for the funeral expenses of Lucio. In conformity with the jurisprudence in Ocampo v. People,⁸⁵ the temperate damages of ₱50,000.00 shall likewise be awarded instead of the damages substantiated by the receipts. In addition, interest at the rate of six percent (6%) per annum shall be imposed on all monetary awards from date of finality of this decision until fully paid.⁸⁶

On the loss of earning capacity, it is noted that Victoria failed to substantiate her claim that her husband was receiving a monthly income of ₱20,000.00. The Court reiterates its ruling that "for lost income due to death, there must be unbiased proof of the deceased' average income. Self-serving, hence unreliable statement, is not enough. "⁸⁷

WHEREFORE, the appeal is DISMISSED. The assailed Decision of the Court of Appeals in CA-G.R. CR-HC No. 01473 finding the accusedappellant Rezor Juanillo Manzano guilty beyond reasonable doubt of Murder and sentencing him to suffer the penalty of reclusion perpetua is AFFIRMED but with MODIFICATION as to the award of damages to the heirs of Lucio Silava, as follows: civil indemnity of ₱75,000.00; moral damages of ₱75,000.00; exemplary damages of ₱75,000.00; and temperate damages of ₱50,000.00. In addition, interest at the rate of six percent (6%) per annum shall be imposed on all monetary awards from the date of finality of this decision until fully paid.

SO ORDERED.

³⁸ Article 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 his relatives by affinity in the same degrees and those 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 revocation was given by the person attacked, that the one making defense had no part therein.

3. Anyone who acts in defense of the person or rights of a stranger, provided that the first and second requisites mentioned in the first circumstance of this Article are present and that the person defending be not induced by revenge, resentment, or other evil motive.

4. Any person who, in order to avoid an evil or injury, does not act which causes damage to another, provided that the following requisites are present;

First. That the evil sought to be avoided actually exists;

Second. That the injury feared be greater than that done to avoid it;

Third. That there be no other practical and less harmful means of preventing it.

5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office.

6. Any person who acts in obedience to an order issued by a superior for some lawful purpose.

⁶⁰ Art. 248. Murder. - Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua, to death if committed with any of the following attendant circumstances:

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

2. In consideration of a price, reward or promise.

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, or by means of motor vehicles, or with the use of any other means involving great waste and ruin.

4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity.

5. With evident premeditation.

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.1âwphi1 (As amended by R.A. No. 7659 entitled "An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised Penal Laws, as amended, Other Special Penal Laws, and for Other Purposes.")

⁶¹ Art. 246. Parricide. - Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death.

⁶⁵ Article 249. Homicide. - Any person who, not falling within the provisions of Article 246, shall kill another without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and be punished by reclusion temporal.

⁸³ Article 63. Rules for the application of indivisible penalties. - In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed.

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

1.xxxx

2. When there are neither mitigating nor aggravating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied.

x x x x

⁸⁴ Supra note 64.

⁸⁵ Supra note 35 at 435.

⁸⁶ People v. Jugueta, supra note 64 at 388.

⁸⁷ People v. Sanchez, 372 Phil. 129, 148 (1999).

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

 

OPOSA V. FACTORAN,G.R. No. 101083 July 30, 1993

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have a cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth."

The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein, now the principal petitioners, are all minors duly represented and joined by their respective parents. Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action geared for the protection of our environment and natural resources. The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the petitioners.¹ The complaint² was instituted as a taxpayers' class suit³ and alleges that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical forests." The same was filed for themselves and others who are equally concerned about the preservation of said resource but are "so numerous that it is impracticable to bring them all before the Court." The minors further asseverate that they "represent their generation as well as generations yet unborn."⁴ Consequently, it is prayed for that judgment be rendered:

. . . ordering defendant, his agents, representatives and other persons acting in his behalf to —

(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements.

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises."⁵

The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare and unique species of flora and fauna may be found; these rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed, endured and flourished since time immemorial; scientific evidence reveals that in order to maintain a balanced and healthful ecology, the country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this balance as a consequence of deforestation have resulted in a host of environmental tragedies, such as (a) water shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt water, incontrovertible examples of which may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum — approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of the country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities, including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction in marine resource productivity, (g) recurrent spells of drought as is presently experienced by the entire country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and operated for the purpose of supplying water for domestic uses, irrigation and the generation of electric power, and (k) the reduction of the earth's capacity to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as the phenomenon of global warming, otherwise known as the "greenhouse effect."

Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so capable of unquestionable demonstration that the same may be submitted as a matter of judicial notice. This notwithstanding, they expressed their intention to present expert witnesses as well as documentary, photographic and film evidence in the course of the trial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests constituting roughly 53% of the country's land mass.

9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said rainforests or four per cent (4.0%) of the country's land area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of immature and uneconomical secondary growth forests.

11. Public records reveal that the defendant's, predecessors have granted timber license agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for commercial logging purposes.

A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour — nighttime, Saturdays, Sundays and holidays included — the Philippines will be bereft of forest resources after the end of this ensuing decade, if not earlier.

13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this continued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are evident and incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph 6 hereof are already being felt, experienced and suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest stands will work great damage and irreparable injury to plaintiffs — especially plaintiff minors and their successors — who may never see, use, benefit from and enjoy this rare and unique natural resource treasure.

This act of defendant constitutes a misappropriation and/or impairment of the natural resource property he holds in trust for the benefit of plaintiff minors and succeeding generations.

15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to protection by the State in its capacity as the parens patriae.

16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990, plaintiffs served upon defendant a final demand to cancel all logging permits in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious damage and extreme prejudice of plaintiffs.

18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare, barren and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had been abundantly blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of the State —

(a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other;

(b) to fulfill the social, economic and other requirements of present and future generations of Filipinos and;

(c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and well-being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to the Constitutional policy of the State to —

a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV, id.);

d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature." (Section 16, Article II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind — the natural law — and violative of plaintiffs' right to self-preservation and perpetuation.

22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth. ⁶

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the plaintiffs is a political question which properly pertains to the legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the action presents a justiciable question as it involves the defendant's abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss.⁷ In the said order, not only was the defendant's claim — that the complaint states no cause of action against him and that it raises a political question — sustained, the respondent Judge further ruled that the granting of the relief prayed for would result in the impairment of contracts which is prohibited by the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only represent their children, but have also joined the latter in this case.⁸

On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the respondents and the petitioners filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of generational genocide in Criminal Law and the concept of man's inalienable right to self-preservation and self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question.

Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit that even if TLAs may be considered protected by the said clause, it is well settled that they may still be revoked by the State when the public interest so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing in the complaint but vague and nebulous allegations concerning an "environmental right" which supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause of action. They then reiterate the theory that the question of whether logging should be permitted in the country is a political question which should be properly addressed to the executive or legislative branches of Government. They therefore assert that the petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of a bill that would ban logging totally.

As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State without due process of law. Once issued, a TLA remains effective for a certain period of time — usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled unless the holder has been found, after due notice and hearing, to have violated the terms of the agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite hearing would be violative of the requirements of due process.

Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case No. 90-777 as a class suit. The original defendant and the present respondents did not take issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of the complaint is of common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full protection of all concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the latter being but an incident to the former.

This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety.⁹ Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. ¹⁰ Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the petition.

After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and rule against the respondent Judge's challenged order for having been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the Complaint is replete with vague assumptions and vague conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed with political color and involving a matter of public policy, may not be taken cognizance of by this Court without doing violence to the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the Government.

The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the fundamental law. ¹¹

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is replete with vague assumptions and conclusions based on unverified data. A reading of the complaint itself belies these conclusions.

The complaint focuses on one specific fundamental legal right — the right to a balanced and healthful ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:

Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

This right unites with the right to health which is provided for in the preceding section of the same article:

Sec. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation — aptly and fittingly stressed by the petitioners — the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come — generations which stand to inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions against all forms of pollution — air, water and noise pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the correlative duty of not impairing the same and, therefore, sanctions may be provided for impairment of environmental balance. ¹²

The said right implies, among many other things, the judicious management and conservation of the country's forests.

Without such forests, the ecological or environmental balance would be irreversiby disrupted.

Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the other related provisions of the Constitution concerning the conservation, development and utilization of the country's natural resources, ¹³ then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, ¹⁴ Section 4 of which expressly mandates that the Department of Environment and Natural Resources "shall be the primary government agency responsible for the conservation, management, development and proper use of the country's environment and natural resources, specifically forest and grazing lands, mineral, resources, including those in reservation and watershed areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of Filipinos." Section 3 thereof makes the following statement of policy:

Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to ensure the sustainable use, development, management, renewal, and conservation of the country's forest, mineral, land, off-shore areas and other natural resources, including the protection and enhancement of the quality of the environment, and equitable access of the different segments of the population to the development and the use of the country's natural resources, not only for the present generation but for future generations as well. It is also the policy of the state to recognize and apply a true value system including social and environmental cost implications relative to their utilization, development and conservation of our natural resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987,¹⁵ specifically in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the Filipino people, the full exploration and development as well as the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources, consistent with the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment and the objective of making the exploration, development and utilization of such natural resources equitably accessible to the different segments of the present as well as future generations.

(2) The State shall likewise recognize and apply a true value system that takes into account social and environmental cost implications relative to the utilization, development and conservation of our natural resources.

The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically speaks of the mandate of the DENR; however, it makes particular reference to the fact of the agency's being subject to law and higher authority. Said section provides:

Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources shall be primarily responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional mandate to control and supervise the exploration, development, utilization, and conservation of the country's natural resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for policy formulation, and have defined the powers and functions of the DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already paid special attention to the "environmental right" of the present and future generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity and well-being." ¹⁶ As its goal, it speaks of the "responsibilities of each generation as trustee and guardian of the environment for succeeding generations." ¹⁷ The latter statute, on the other hand, gave flesh to the said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the DENR's duty — under its mandate and by virtue of its powers and functions under E.O. No. 192 and the Administrative Code of 1987 — to protect and advance the said right.

A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with grave abuse of discretion, violated their right to a balanced and healthful ecology; hence, the full protection thereof requires that no further TLAs should be renewed or granted.

A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or rights of the other; and its essential elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the defendant in violation of said legal right. ¹⁸

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a cause of action, ¹⁹ the question submitted to the court for resolution involves the sufficiency of the facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth of falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the court render a valid judgment in accordance with the prayer in the complaint? ²⁰ In Militante vs. Edrosolano, ²¹ this Court laid down the rule that the judiciary should "exercise the utmost care and circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of action] lest, by its failure to manifest a correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute."

After careful examination of the petitioners' complaint, We find the statements under the introductory affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or determination by the executive or legislative branches of Government is not squarely put in issue. What is principally involved is the enforcement of a right vis-a-vis policies already formulated and expressed in legislation. It must, nonetheless, be emphasized that the political question doctrine is no longer, the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

Commenting on this provision in his book, Philippine Political Law, ²² Mr. Justice Isagani A. Cruz, a distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial power, involving the settlement of conflicting rights as conferred as law. The second part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before forbidden territory, to wit, the discretion of the political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule upon even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or contract according to the disposition of the judiciary.

In Daza vs. Singson, ²³ Mr. Justice Cruz, now speaking for this Court, noted:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from revolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution clearly provides: . . .

The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts clause found in the Constitution. The court a quo declared that:

The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the fundamental law. ²⁴

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in his motion to dismiss the non-impairment clause. If he had done so, he would have acted with utmost infidelity to the Government by providing undue and unwarranted benefits and advantages to the timber license holders because he would have forever bound the Government to strictly respect the said licenses according to their terms and conditions regardless of changes in policy and the demands of public interest and welfare. He was aware that as correctly pointed out by the petitioners, into every timber license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may amend, modify, replace or rescind any contract, concession, permit, licenses or any other form of privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protested by the due process clause of the Constitution. In Tan vs. Director of Forestry, ²⁵ this Court held:

. . . A timber license is an instrument by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. A timber license is not a contract within the purview of the due process clause; it is only a license or privilege, which can be validly withdrawn whenever dictated by public interest or public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal, state, or municipal, granting it and the person to whom it is granted; neither is it property or a property right, nor does it create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: ²⁶

. . . Timber licenses, permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:

Sec. 10. No law impairing, the obligation of contracts shall be passed. ²⁷

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law or even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose, such as law could have only been passed in the exercise of the police power of the state for the purpose of advancing the right of the people to a balanced and healthful ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. ²⁸ this Court stated:

The freedom of contract, under our system of government, is not meant to be absolute. The same is understood to be subject to reasonable legislative regulation aimed at the promotion of public health, moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations of contract is limited by the exercise of the police power of the State, in the interest of public health, safety, moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York, ²⁹ quoted in Philippine American Life Insurance Co. vs. Auditor General,³⁰ to wit:

Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest.

In short, the non-impairment clause must yield to the police power of the state. ³¹

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing or approving new timber licenses for, save in cases of renewal, no contract would have as of yet existed in the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the questioned timber license agreements.

No pronouncement as to costs.

SO ORDERED.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

OFFICE OF THE OMBUDSMAN, Petitionervs.MAYOR JULIUS CESAR VERGARA, Respondent SECOND DIVISION December 6, 2017 G.R. No. 216871

 

 

D E C I S I O N

PERALTA, J.:

For this Court’s consideration is the Petition for Review on Certiorari under Rule 45 of the Rules of Court dated April 6, 2015 of petitioner Office of the Ombudsman that seeks to reverse and set aside the Decision¹ dated May 28, 2014 of the Court of Appeals (CA) in CA-G.R. SP No. 125841 rendering the penalty imposed in the Decision² dated February 7, 2006 and Review Order³ dated June 29, 2012 of petitioner Office of the Ombudsman against respondent Mayor Julius Cesar Vergara (Mayor Vergara) for violation of Section 5 (a) of Republic Act (R.A.) No. 6713 inapplicable due to the doctrine of condonation.

The facts follow.

A complaint was filed by Bonifacio G. Garcia, on June 21, 2005 before petitioner's Office of the Environmental Ombudsman against respondent Mayor Julius Cesar Vergara and then Vice-Mayor Raul Mendoza (Vice-Mayor Mendoza). Respondent Mayor Vergara was then serving as Mayor of Cabanatuan City for his third term (2004-2007).

According to the complainant, respondent Vergara and then ViceMayor Mendoza maintained for quite a long time an open burning dumpsite located at the boundaries of Barangays San Isidro and Valle Cruz in Cabanatuan City, which has long been overdue for closure and rehabilitation. He claimed that the dumpsite is now a four-storey high mountain of mixed garbage exposing the residents of at least eighty-seven (87) barangays of Cabanatuan City to all toxic solid wastes. He further alleged that respondent Mayor Vergara and then Vice-Mayor Mendoza ordered and permitted the littering and dumping of the solid wastes in the said area causing immeasurable havoc to the health of the residents of Cabanatuan and that despite the enactment of R.A. 9003, respondent Mayor Vergara and then Vice-Mayor Mendoza allowed and permitted the collection of non-segregated and unsorted wastes. It was also alleged that respondent Mayor Vergara and then Vice-Mayor Mendoza ignored the complaints from local residents and the letters from the authorities of the Department of Environment and Natural Resources (DENR) and from the Commissioner of the National Solid Waste Management ordering them to comply with the provisions of the said law.

In their Joint Counter-Affidavit,⁴ both respondent Mayor Vergara and then Vice-Mayor Mendoza denied that they wilfully and grossly neglected the performance of their duties pursuant to R.A. 9003. They claimed that since 1999, they were already aware about the growing problem of garbage collection in Cabanatuan City. They also contended that even before the enactment of RA 9003, they have already prepared a master plan for the transfer of the city dumpsite in Barangay Valle into an agreement with Lacto Asia Pacific Corporation for the establishment of Materials Recovery Facility at the motorpool compound of Cabanatuan City as a permanent solution to the garbage problem.

Respondent Mayor Vergara was found guilty by Graft Investigation and Prosecution Officer II Ismaela B. Boco for violation of Section 5 (a) of R.A. No. 6713, or the Code of Conduct and Ethical Standards for Public Officials and Employees which provides that:

Section 5. Duties of Public Officials and Employees. - In the performance of their duties, all public officials and employees are under obligation to:

(a) Act promptly on letter and requests - All public officials and employees shall, within fifteen (15) working days from receipt thereof, respond to letters, telegrams or other means of communications sent by the public. The reply must contain the action taken on the request.

As such, petitioner imposed a penalty on respondent which reads as follows:

x x x Accordingly, he is meted the penalty of Suspension for six (6) months from the government service pursuant to Section 10, Rule III of the Administrative Order No. 07, this Office, in relation to Section 25 of Republic Act No. 6770.

It is further recommended that both respondents, JULIUS CESAR VERGARA and RAUL P. MENDOZA be administratively liable for NEGLECT OF DUTY for failing to implement RA 9003. Accordingly, each of them is meted the penalty of Suspension for six (6) months from the government service pursuant to Section 10, Rule III of the Administrative Order No. 07, this Office, in relation to Section 25 of Republic Act No. 6770.⁵

Respondent filed a motion for reconsideration contending that the assailed decision that meted him the penalty of suspension for six (6) months from government service cannot be implemented or enforced as the same runs counter to the established doctrine of condonation, since he was reelected as Mayor of Cabanatuan City on May 10, 2010.

The petitioner, in its Review Order dated June 29, 2012, affirmed the Decision dated February 7, 2006 but modified the penalty imposed, thus:

PREMISES CONSIDERED, the Decision dated 7 February 2006 is hereby AFFIRMED with modification. The penalty imposed on respondent-movant Julius Cesar V. Vergara for failure to act promptly on letters and requests is reduced from six-month suspension to reprimand in light of the foregoing disquisition.

SO ORDERED.⁶

Aggrieved, respondent filed a petition for review with the CA.

Respondent then filed a Motion and Manifestation dated May 16, 2013, which the CA noted, alleging that his re-election as Mayor of Cabanatuan City in the May 2010 elections eliminated the break from his service as Mayor and, thus, qualified his case for the application of the doctrine of condonation.

The CA, on May 28, 2014, granted respondent's petition. The CA ruled that there is no reason for it to reverse the findings of the Office of the Ombudsman, however, the appellate court held that respondent may no longer be held administratively liable for misconduct committed during his previous term based on the doctrine of condonation, thus:

x x x x

Contrary to the ratiocination of the Office of the Ombudsman, the application of the doctrine does not require that the official must be reelected to the same position in the immediately succeeding election. The Supreme Court's rulings on the matter do not distinguish the precise timing or period when the misconduct was committed, reckoned from the date of the official's reelection, except that it must be prior to said date. Thus, when the law does not distinguish, the courts must not distinguish.

FOR THESE REASONS, the petition is GRANTED.

SO ORDERED.⁷

Petitioner filed a motion for partial reconsideration contending that the re-election referred to in the doctrine of condonation refers to the immediately succeeding election. The CA, in its Resolution dated February 5, 2015, denied the motion for reconsideration.

Hence, the present petition with the following grounds:

I.

THE COURT OF APPEALS ERRED WHEN IT HELD THAT RESPONDENT MAY NO LONGER BE HELD ADMINISTRATIVELY LIABLE FOR MISCONDUCT COMMITTED DURING HIS PREVIOUS TERM OF OFFICE BASED ON THE DOCTRINE OF CONDON A TION.

II.

ASSUMING ARGUENDO THAT THE DOCTRINE OF CONDON A TI ON IS APPLICABLE TO THE CASE AT BAR, PETITIONER RESPECTFULLY BESEECHES THIS HONORABLE COURT TO REEXAMINE SAID DOCTRINE IN LIGHT OF THE 1987 CONSTITUTION'S MANDATE THAT PUBLIC OFFICE IS A PUBLIC TRUST.⁸

According to petitioner, the term re-election, as applied in the doctrine of condonation, is used to refer to an election immediately preceding a term of office and it is not used to refer to a subsequent re-election following the three-term limit break considering that it is an incumbent official serving the three-term limit break who is said to be seeking re-election. It further argues that the factual circumstances of respondent do not warrant the application of the doctrine of condonation considering that the same doctrine is applied only to cases where the subject public officials were elected to the same position in the immediately succeeding election. Petitioner, likewise, contends that assuming that the doctrine of condonation is applicable in this case, such doctrine contradicts the 1987 Constitution and the present public policy.

In his Comment dated September 23, 2015, respondent insists that he did not violate any law and that if he is indeed guilty of violating R.A. 9003, the doctrine of condonation must be applied by virtue of his re-election.

The petition lacks merit.

Basically, this Court is presented with the single issue of whether or not respondent is entitled to the doctrine of condonation.

In November 10, 2015, this Court, in Conchita Carpio Morales v. CA and Jejomar Binay, Jr., ⁹ extensively discussed the doctrine of condonation and ruled that such doctrine has no legal authority in this jurisdiction. As held in the said the decision:

The foundation of our entire legal system is the Constitution. It is the supreme law of the land; 10 thus, the unbending rule is that every statute should be read in light of the Constitution.¹¹ Likewise, the Constitution is a framework of a workable government; hence, its interpretation must take into account the complexities, realities, and politics attendant to the operation of the political branches of government.¹²

As earlier intimated, Pascual was a decision promulgated in 1959. Therefore, it was decided within the context of the 1935 Constitution which was silent with respect to public accountability, or of the nature of public office being a public trust. The provision in the 1935 Constitution that comes closest in dealing with public office is Section 2, Article II which states that "[t]he defense of the State is a prime duty of government, and in the fulfillment of this duty all citizens may be required by law torender personal military or civil service."¹³ Perhaps owing to the 1935 Constitution's silence on public accountability, and considering the dearth of jurisprudential rulings on the matter, as well as the variance in the policy considerations, there was no glaring objection confronting the Pascual Court in adopting the condonation doctrine that originated from select US cases existing at that time.

With the advent of the 1973 Constitution, the approach in dealing with public officers underwent a significant change. The new charter introduced an entire article on accountability of public officers, found in Article XIII. Section 1 thereof positively recognized, acknowledged, and declared that "[p]ublic office is a public trust." Accordingly, "[p]ublic officers and employees shall serve with the highest degree of responsibility, integrity, loyalty and efficiency, and shall remain accountable to the people."

After the turbulent decades of Martial Law rule, the Filipino People have framed and adopted the 1987 Constitution, which sets forth in the Declaration of Principles and State Policies in Article II that "[t]he State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption."¹⁴ Learning how unbridled power could corrupt public servants under the regime of a dictator, the Framers put primacy on the integrity of the public service by declaring it as a constitutional principle and a State policy. More significantly, the 1987 Constitution strengthened and solidified what has been first proclaimed in the 1973 Constitution by commanding public officers to be accountable to the people at all times:

Section 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency and act with patriotism and justice, and lead modest lives.

In Belgica, it was explained that:

[t]he aphorism forged under Section 1, A1iicle XI of the 1987 Constitution, which states that "public office is a public trust," is an overarching reminder that every instrumentality of government should exercise their official functions only in accordance with the principles of the Constitution which embodies the parameters of the people's trust. The notion of a public trust connotes accountability x x x.¹⁵

The same mandate is found in the Revised Administrative Code under the section of the Civil Service Commission,¹⁶ and also, in the Code of Conduct and Ethical Standards for Public Officials and Employees.¹⁷

For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove an elective local official from office are stated in Section 60 of Republic Act No. 7160,¹⁸ otherwise known as the "Local Government Code of 1991" (LGC), which was approved on October 10 1991, and took effect on January 1, 1992:

Section 60. Grounds for Disciplinary Action. - An elective local official may be disciplined, suspended, or removed from office on any of the r following grounds:

(a) Disloyalty to the Republic of the Philippines;

(b) Culpable violation of the Constitution;

(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;

(d) Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor;

(e) Abuse of authority;

(t) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlunsod, sanggunian bayan, and sangguniang barangay;

(g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and

(h) Such other grounds as may be provided in this Code and other laws.

An elective local official may be removed from office on the grounds enumerated above by order of the proper court.

Related to this provision is Section 40 (b) of the LGC which states that those removed from office as a result of an administrative case shall be disqualified from running for any elective local position:

Section 40. Disqualifications. - The following persons are disqualified from running for any elective local position:

x x x x

(b) Those removed from office as a result of an administrative case;

x x x x

In the same sense, Section 52 (a) of the RRA CCS provides that the penalty of dismissal from service carries the accessory penalty of perpetual disqualification from holding public office:

Section 52. - Administrative Disabilities Inherent m Certain Penalties. -

The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of retirement benefits, perpetual disqualification from holding public office, and bar from taking the civil service examinations.

In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall not exceed the unexpired term of the elective local official nor constitute a bar to his candidacy for as long as he meets the qualifications required for the office. Note, however, that the provision only pertains to the duration of the penalty and its effect on the official’s candidacy. Nothing therein states that the administrative liability therefor is extinguished by the fact of re-election:

Section 66. Form and Notice of Decision. – x x x.

x x x x

(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long as he meets the qualifications required for the office.

Reading the 1987 Constitution together with the above-cited legal provisions now leads this Court to the conclusion that the doctrine of condonation is actually bereft of legal bases.

To begin with, the concept of public office is a public trust and the corollary requirement of accountability to the people at all times, as mandated under the 1987 Constitution, is plainly inconsistent with the idea that an elective local official’s administrative liability for a misconduct committed during a prior term can be wiped off by the fact that he was elected to a second term of office, or even another elective post. Election is not a mode of condoning an administrative offense, and there is simply no constitutional or statutory basis in our jurisdiction to support the notion that an official elected for a different term is folly absolved of any administrative liability arising from an offense done during a prior term. In this jurisdiction, liability arising from administrative offenses may be condoned by the President in light of Section 19, Article VII of the 1987 Constitution which was interpreted in Llamas v. Orbos¹⁹ to apply to administrative offenses:

x x x The Constitution does not distinguish between which cases executive clemency may be exercised by the President, with the sole exclusion of impeachment cases. By the same token, if executive clemency may be exercised only in criminal cases, it would indeed be unnecessary to provide for the exclusion of impeachment cases from the coverage of Article VII, Section 19 of the Constitution. Following petitioner's proposed interpretation, cases of impeachment are automatically excluded inasmuch as the same do not necessarily involve criminal offenses.

In the same vein, We do not clearly see any valid and convincing, reason why the President cannot grant executive clemency in administrative cases. It is Our considered view that if the President can grant reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with much more reason can she grant executive clemency in administrative cases, which are clearly less serious than criminal offenses.

Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline enumerated therein cannot anymore be invoked against an elective local official to hold him administratively liable once he is re-elected to office. In fact, Section 40 (b) of the LGC precludes condonation since in the first place, an elective local official who is meted with the penalty of removal could not be re-elected to an elective local position due to a direct disqualification from running for such post. In similar regard, Section 52 (a) of the RRACCS imposes a penalty of perpetual disqualification from holding public office as an accessory to the penalty of dismissal from service.

To compare, some of the cases adopted in Pascual were decided by US State jurisdictions wherein the doctrine of condonation of administrative liability was supported by either a constitutional or statutory provision stating, in effect, that an officer cannot be removed by a misconduct committed during a previous term,²⁰ or that the disqualification to hold the office does not extend beyond the term inwhich the official's delinquency occurred.²¹ In one case,²² the absence of a provision against the re-election of an officer removed - unlike Section 40 (b) of the LGC-was the justification behind condonation. In another casc,²³ it was deemed that condonation through re-election was a policy under their constitution - which adoption in this jurisdiction runs counter to our present Constitution's requirements on public accountability. There was even one case where the doctrine of condonation was not adjudicated upon but only invoked by a party as a ground;²⁴ while in another case, which was not reported in full in the official series, the crux of the disposition was that the evidence of a prior irregularity in no way pertained to the charge at issue and therefore, was deemed to be incompetent.²⁵ Hence, owing to either their variance or inapplicability, none of these cases can be used as basis for the continued adoption of the condonation doctrine under our existing laws.

At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of suspension beyond the unexpired portion of the elective local official's prior term, and likewise allows said official to still run for reelection This treatment is similar to People ex rel Bagshaw v. Thompson²⁶ and Montgomery v. Novell²⁷ both cited in Pascual, wherein it was ruled that an officer cannot be suspended for a misconduct committed during a prior term. However, as previously stated, nothing in Section 66 (b) states that the elective local official's administrative liability is extinguished by the fact of re-election. Thus, at all events, no legal provision actually supports the theory that the liability is condoned.

Relatedly it should be clarified that there is no truth in Pascual’s postulation that the courts would be depriving the electorate of their right to elect their officers if condonation were not to be sanctioned. In political law, election pertains to the process by which a particular constituency chooses an individual to hold a public office. In this jurisdiction, there is, again, no legal basis to conclude that election automatically implies condonation. Neither is there any legal basis to say that every democratic and republican state has an inherent regime of condonation. If condonation of an elective official’s administrative liability would perhaps, be allowed in this jurisdiction, then the same should have been provided by law under our governing legal mechanisms. May it be at the time of Pascual or at present, by no means has it been shown that such a law, whether in a constitutional or statutory provision, exists. Therefore, inferring from this manifest absence, it cannot be said that the electorate’s will has been abdicated.

Equally infirm is Pascual’s proposition that the electorate, when reelecting a local official, are assumed to have done so with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. Suffice it to state that no such presumption exists in any statute or procedural rule.²⁸ Besides, it is contrary to human experience that the electorate would have full knowledge of a public official's misdeeds. The Ombudsman correctly points out the reality that most corrupt acts by public officers are shrouded in secrecy, and concealed from the public. Misconduct committed by an elective official is easily covered up, and is almost always unknown to the electorate when they cast their votes.²⁹ At a conceptual level, condonation presupposes that the condoner has actual knowledge of what is to be condoned. Thus, there could be no condonation of an act that is unknown. As observed in Walsh v. City Council of Trenton³⁰ decided by the New Jersey Supreme Court:

Many of the cases holding that re-election of a public official prevents his removal for acts done in a preceding term of office are reasoned out on the theory of condonation.1âwphi1 We cannot subscribe to that theory because condonation, implying as it does forgiveness, connotes knowledge and in the absence of knowledge there can be no condonation. One cannot forgive something of which one has no knowledge.

That being said, this Court simply finds no legal authority to sustain the condonation doctrine in this jurisdiction. As can be seen from this discourse, it was a doctrine adopted from one class of US rulings way back in 1959 and thus, out of touch from - and now rendered obsolete by - the current legal regime. In consequence, it is high time for this Court to abandon the condonation doctrine that originated from Pascual, and affirmed in the cases following the same, such as Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr. which were all relied upon by the CA.

The above ruling, however, was explicit in its pronouncement that the abandonment of the doctrine of condonation is prospective in application, hence, the same doctrine is still applicable in cases that transpired prior to the ruling of this Court in Carpio Morales v. CA and Jejomar Binay, Jr. ³¹ Thus:

It should, however, be clarified that this Court's abandonment of the condonation doctrine should be prospective in application for the reason that judicial decisions applying or interpreting the laws or the Constitution, until reversed, shall form part of the legal system of the Philippines.³² Unto this Court devolves the sole authority to interpret what the Constitution means, and all persons are bound to follow its interpretation. As explained in De Castro v. Judicial Bar Council.³³

Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned, necessarily become, to the extent that they are applicable, the criteria that must control the actuations, not only of those called upon to abide by them, but also of those duty-bound to enforce obedience to them.³⁴

Hence, while the future may ultimately uncover a doctrine’s error, it should be, as a general rule, recognized as "good law" prior to its abandonment. Consequently, the people’s reliance thereupon should be respected. The landmark case on this matter is People v. Jabinal,³⁵ wherein it was ruled:

[W]hen a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be applied prospectively, and should not apply to parties who had relied on the old doctrine and acted on the faith thereof.

Later, in Spouses Benzonan v. CA,³⁶ it was further elaborated:

[Pursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines." But while our decisions form part of the law of the land, they are also subject to Article 4 of the Civil Code which provides that "laws shall have no retroactive effect unless the contrary is provided." This is expressed in the familiar legal maxim lex prospicit, non respicit, the law looks forward not backward. The rationale against retroactivity is easy to perceive. The retroactive application of a law usually divests rights that have already become vested or impairs the obligations of contract and hence, is unconstitutional.³⁷

Indeed, the lessons of history teach us that institutions can greatly benefit from hindsight and rectify its ensuing course.1âwphi1 Thus, while it is truly perplexing to think that a doctrine which is barren of legal anchorage was able to endure in our jurisprudence for a considerable length of time, this Court, under a new membership, takes up the cudgels and now abandons the condonation doctrine.

Considering that the present case was instituted prior to the abovecited ruling of this Court, the doctrine of condonation may still be applied.

It is the contention of the petitioner that the doctrine of condonation cannot be applied in this case, since there was a gap in the re-election of the respondent. It must be remembered that the complaint against respondent was filed on June 21, 2005, or during the latter's third term as Mayor (2004- 2007) and was only re-elected as Mayor in 2010. According to petitioner, for the doctrine to apply, the respondent should have been re-elected in the same position in the immediately succeeding election.

This Court finds petitioner's contention unmeritorious.

The application of the doctrine does not require that the official must be re-elected to the same position in the immediately succeeding election. In Giron v. Ochoa,³⁸ the Court recognized that the doctrine can be applied to a public officer who was elected to a different position provided that it is shown that the body politic electing the person to another office is the same. Thus, the Court ruled:

On this issue, considering the ratio decidendi behind the doctrine, the Court agrees with the interpretation of the administrative tribunalsbelow that the condonation doctrine applies to a public official elected to another office. The underlying theory is that each term is separate from other terms. Thus, in Carpio-Morales, the basic considerations are the following: first, the penalty of removal may not be extended beyond the term in which the public officer was elected for each term is separate and distinct; second, an elective official's re-election serves as a condonation of previous misconduct, thereby cutting the right to remove him therefor; and third, courts may not deprive the electorate, who are assumed to have known the life and character of candidates, of their right to elect officers. In this case, it is a given fact that the body politic, who elected him to another office, was the same.

From the above ruling of this Court, it is apparent that the most important consideration in the doctrine of condonation is the fact that the misconduct was done on a prior term and that the subject public official was eventually re-elected by the same body politic. It is inconsequential whether the said re-election be on another public office or on an election year that is not immediately succeeding the last, as long as the electorate that re-elected the public official be the same. In this case, the respondent was re-elected as mayor by the same electorate that voted for him when the violation was committed. As such, the doctrine of condonation is applied and the CA did not err in so ruling.

WHEREFORE, Petition for Review on Certiorari under Rule 45 of the Rules of Court dated April 6, 2015 of petitioner Office of the Ombudsman is DENIED. Consequently, the Decision dated May 28, 2014 of the Court of Appeals in CA-G.R. SP No. 125841 is AFFIRMED.

SO ORDERED.

 

.

¹⁶ Section I. Declaration of Policy. - The State shall insure and promote the Constitutional mandate that appointments in the Civil Service shall be made only according to merit and fitness; that the Civil Service Commission, as the central personnel agency of the Government shall establish a career service, adopt measures to promote morale, efficiency, integrity, responsiveness, and courtesy in the civil service, strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability; that public office is a public trust and public officers and employees must at all times be accountable to the people; and that personnel functions shall be decentralized, delegating the corresponding authority to the departments, offices and agencies where such functions can be effectively performed. (Section 1, Book V, Title 1, subtitle A of the Administrative Code of 1987). (Emphasis supplied)

¹⁷ Section 2. Declaration of Policies. - It is the policy of the State to promote a high standard of ethics in public service. Public officials and employees shall at all times be accountable to the people and shall discharge their duties with utmost responsibility, integrity, competence, and loyalty, act with patriotism and justice, lead modest lives, and uphold public interest over personal interest. See Section 2, RA 6713 (approved on February 20, 1989). (Emphasis supplied)

¹⁸ Entitled "AN ACT PROVIDING FOR A LOCAL GOVERNMENT CODE OF 1991" (approved on October 10 1991).

¹⁹ 279 Phil. 920, 937 (1991)

²⁰ In Fudula’s Petition (297 Pa. 364; 147 A. 67 [1929]), the Supreme Court of Pennsylvania cited(a) 29 Cyc. 1410 which states: "Where removal may be made for cause only, the cause must have occurred during the present term of the officer. Misconduct prior to the present term even during a preceding term will not justify a removal": and (b) "x x x Penal Code [Cal.], paragraph 772, providing for the removal of officers for violation of duty, which states "a sheriff cannot be removed from office, while serving his second term, for offenses committed during his first term." In Board of Commissioners of Kingfisher County v. Shutler (139 Okla. 52; 281 P. 222 [1929)), the Supreme Court of Oklahoma held that "[u]nder section 2405, C. 0. S. 1921, the only judgment a court can render on an officer being convicted of malfeasance or misfeasance in office is removal from office and an officer cannot be removed from office under said section for acts committed by him while holding the same office in a previous term."

²¹ In State v. Blake (I38 Okla. 241; 280 P. 833 [1929]), the Supreme Court of Oklahoma cited Stale ex rel. Hill, County Attorney, v. Henschel, 175 P. 393, wherein it was said: "Under the Ouster Law (section 7603 of the General Statutes of 1915-Code Civ. Proc. 686a-), a public officer who is guilty of willful misconduct in office forfeits his right to hold the office for the term of his election or appointment; but the disqualification to hold the office does not extend beyond the term in which his official delinquency occurred."

²² In Rice v. State (204 Ark. 236; 161 S. W.2d 401 [1942]), the Supreme Court of Arkansas cited (a) Jacobs v. Parham, 175 Ark. 86,298 S.W. 483, which quoted a headnote, that "Under Crawford Moses' Dig., [(i.e., a digest of statutes in the jurisdiction of Arkansas)] 10335, 10336, a public officer is not subject to removal from office because of acts done prior to his present term of office in view of Const., art. 7, 27, containing no provision against re-election of officer removed for any of the reasons named therein." ²³ In State ex rel. Brickell v. Hasty (184 Ala. 121; 63 So. 559 [1913]), the Supreme Court of Alabama held: "x x x If an officer is impeached and removed, there is nothing to prevent his being elected to the identical office from which he was removed for a subsequent term, and, this being true, are election to the office would operate as a condonation under the Constitution of the officer's conduct during the previous term, to the extent of cutting off the right to remove him from subsequent term for said conduct during the previous term. It seems to be the policy of our Constitution to make each term independent of the other, and to disassociate the conduct under one term from the qualification or right to fill another term, at least, so far as the same may apply to impeachment proceedings, and as distinguished from the right to indict and convict an offending official."

²⁴ In State Ex Rel. V Ward (163 Tenn. 265; 43 S.W.2d. 217 [1931]), decided by the Supreme Court of Tennessee, Knoxville, it appears to be erroneously relied upon in Pascual, since the proposition "[t]hat the Acts alleged in paragraph 4 of the petition involved contracts made by defendant prior to his present term for which he cannot now be removed from office" was not a court ruling but an argument raised by the defendant in his demurrer.

²⁵ In Conant v. Grosan (6 N.Y.S.R. 322 [1887]), which was cited in Newman v. Strobel (236 A.O. 371; 259 N.Y.S. 402 [1932]; decided by the Supreme Court of New York, Appellate Division) reads: "Our attention is called to Conant v. Grogan (6 N.Y. St. Repr. 322; 43 Hun, 637) and Matter of King (25 N.Y. St. Repr. 792; 53 Hun, 631), both of which decisions are of the late General Term, and neither of which is reported in full in the official series. While there are expressions in each opinion which at first blush might seem to uphold respondent’s theory, an examination of the cases discloses the fact that the charge against each official related to acts performed during his then term of office, and evidence of some prior irregularity was offered which in no way pertained to the charge in issue. It was properly held that such evidence was incompetent. The respondent was not called upon to answer such charge, but an entirely separate and different one."

²⁶ In People ex rel. Basshaw v. Thompson (55 Cal. App. 2d 147; 130 P.2d.237 [1942]), the Court of Appeal of California, First Appellate District cited Thurston v. Clark, (107 Cal. 285, 40 P. 435), wherein it was ruled: "The Constitution does not authorize the governor to suspend an incumbent of the office of county commissioner for an act of malfeasance or misfeasance in office committed by him prior to the date of the beginning of his current term of office as such country commissioner."

²⁷ Montgomery v. Nowell. (183 Ark. 1116; 40 S. W.2d 418 [1931]; decided by the Supreme Court of Arkansas), the headnote reads as follows: "Crawford & Moses' Dig., 10, 335, providing for suspension of an officer on presentment or indictment for certain causes including malfeasance, in office does not provide for suspension of an officer on being indicted for official misconduct during a prior term of office."

²⁸ See Chief Justice Maria Lourdes P.A. Sereno’s interpellation, TSN of the Oral Arguments, April 14,2015, p.43.

²⁹ See Ombudsman's Memorandum, rollo, Vol. 11, p. 716, citing Silos, Miguel U., A Re-examination of the Doctrine of Condonation of Public Officers, 84, Phil. LJ 22, 69 (2009), p. 67.

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RODOLFO D. LLAMAS, petitioner,vs.EXECUTIVE SECRETARY OSCAR ORBOS and MARIANO UN OCAMPO III, respondents. EN BANC

G.R. No. 99031 October 15, 1991

 

Mauricio Law Office for petitioner.

Ongkiko, Bucoy, Dizon & Associates for private respondent.

 

PARAS, J.:

The case before Us calls for a determination of whether or not the President of the Philippines has the power to grant executive clemency in administrative cases. In connection therewith, two important questions are also put in issue, namely, whether or not the grant of executive clemency and the reason therefore, are political questions beyond judicial review, and whether or not the questioned act was characterized by grave abuse of discretion amounting to lack of jurisdiction.

Petitioner Rodolfo D. Llamas is the incumbent Vice-Governor of the Province of Tarlac and, on March 1, 1991 he assumed, by virtue of a decision of the Office of the President, the governorship (p. 1, Petition). Private respondent Mariano Un Ocampo III is the incumbent Governor of the Province of Tarlac and was suspended from office for a period of 90 days. Public respondent Oscar Orbos was the Executive Secretary at the time of the filing of this petition and is being impleaded herein in that official capacity for having issued, by authority of the President, the assailed Resolution granting executive clemency to respondent governor.

Sometime in 1989, petiotioner, together with Tarlac Board Members Marcelino Aganon, Jr. and Arnaldo P. Dizon, filed on June 13, 1989 a verified complaint dated June 7, 1989 against respondent governor before the then Department of Local Government (DLG, for short), charging him with alleged violation of Section 203(2) (f) 203(2) (p), and 208(w), of Batas Pambansa (B.P.) Blg. 337, otherwise known as the Local Government Code, and other appropriate laws, among them, the Anti-Graft and Corrupt Practices ACt. Prior to that, petitoner filed with the Office of the Omdusman a verified complainant dated November 10, 1988 against respondent governor for the latter's alleged viloation of Section 3-G of Republic Act. (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

The complaint before the DLG, docketed as Administrative Case 10459, was subsequently tried, where both petitioner and respondent govemor presented their respective evidence.

Petitioner maintains that sometime in August, 1988, respondent governor, in his official capacity as Provincial Governor Tarlac, entered into and executed a Loan Agreement with Lingkod Tarlac Foundation, Inc., a non-stock and non-profit organization headed by the governor himself as chairman and controlled by his brother-in-law as executive director, trustee, and secretary; that the said Loan Agreement was never authorized and approved by the Provincial Board, in direct contravention of the provisions of the Local Government Code; that the said Agreement is wholly one-sided in favor of the Foundation and grossly inimical to the interest of the Provincial Government (because it did not provide for interest or for any type security and it did not provide for suretyship and comptrollership or audit to control the safe disbursement of said loan); that a total amount of P20,000,000.00 was disbursed to the aforesaid Foundation; that the transactions constitute a fraudulent scheme to defraud the Provincial Government; and that the said Agreement is wholly unconstitutional, illegal, a immoral. (Annex "A", Petition)

On the other hand, it is the contention of respondent governor that "the funds were intended to generate livelihood project among the residents of Tarlac and the use of the Lingkod Tarlac Foundation, Inc. was authorized by law and considered the best alternative as a matter of judgment." (pp. 12-13, Appeal Memorandom); that he resigned from the said Foundation in order to forestall any suspicion that he would influence it; that it is not true that the Loan Agreement did not provide for continuing audit by the Provincial Government because the Memorandum of Agreement provides otherwise; and that the Agreement is not manifestly and grossly disadvantageous to the Provincial Government and respondent governor did not and would not profit thereby because it provided sufficient safeguards for repayment. (Annex "A", Petition)

After trial, the Secretary of the then Department of Local Government rendered a decision dated September 21, 1990, dispositive portion of which reads:

WHEREFORE, Governor Mariano Un Ocampo III is, as he hereby found guilty of having violated Section 3(g) of Republic Act No.3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which act amounts to serious neglect of duty and/or abuse of authority, for which tilp penalty of suspension from office for a period of ninety (90) days, effective upon the finality of this Decision, is hereby imposed upon him. (p. 3, Petition)

Parenthetically, be it noted that the Resolution imposed not a preventive suspension but a penalty of suspension.

Respondent govemor moved for a reconsideration of the abovequoted decision but the same was denied on October 19, 1990. Aggrieved, he appealed the DLG decision dated September 21, 1990 and the order of denial dated October 19, 1990 to the Office of the President (O.P. Case No. 4480).

On February 26, 1991, herein public respondent Executive Secretary issued a Resolution dismissing respondent governor's appeal and affirming the September 21, 1990 DLG decision.

Subsequently, and pursuant to Sec. 66, Chapter 4 of B.P. Blg. 337, to the effect that the decision of the Office of the President in administrative suspension of local officials shall be immediately executory without prejudice to appeal to appropriate courts, petitioner, on March 1, 1991, took his oath of office as acting governor. Under the administrative suspension order, petitioner had up to May 31, 1991 as acting governor. On the same date (March 1, 1991), respondent govemor moved for a reconsideration of the Executive Secretary's Resolution, to which petitioner filed an opposition. From the allegations of the petitioner in his petition, respondent govemor accepted his suspension and turned over his office to petitioner.

To the surprise of petitioner, however, respondent govemor on March 19, 1991, issued an "administrative order" dated March 8, 1991, in which the latter signified his intention to "(continue, as I am bound to exercise my fimctions as govemor and shall hold office at my residence," in the belief that "the pendency of my Motion for Reconsideration precludes the coming into finality as executory the DLG decision." (Annex "E", Petition; p. 10, Comment). And, as categorically stated in the petition, the reassumption ceremony by respondent governor was held on May 21, 1991 (p. 8, Petition).

Without ruling on respondent governor's Motion for Reconsideration, public respondent issued a Resolution dated May 15, 1991, in O.P. Case No. 4480, which reads:

This refers to the petition of Gov. Mariano Un Ocampo III of Tarlac for executive clemency, interposed in connection with the decision of the Secretary of then Department of Local Governmen (DLG) dated 21 September 1990, as affirmed in a Resolution of this Office dated 26 February 1991, suspending petitioner from office for period of ninety (90) days upon the finality of said decision.

As will be recalled, the DLG Secretary imposed the penalty of suspension upon his finding that petitioner was guilty of serious neglect of duty and/or abuse of authority for entering into a loan contract — with the Lingkod Tarlac Foundation, Inc. (LTFI) — grossly/manifestly disadvantageous to Tarlac Province. In his letter-petition of 10 May 1991, thereby pleading for a thirty (30)-day reduction of his suspension, petitioner invited attention to the DLG Secretary's decision clearing him of having personally benefitted from the questioned transaction. In the same letter, petitioner manifests serving more than sixty (60) days of the ninety-day suspension. Previously, petitioner submitted documents and letters from his constituents tending to show the relative success of his livelihood loan program pursue under the aegis of the LTFI and/or the Foundation's credible loan repayment record. To cite some:

1. Certification of the Chairman,Tarlac Integrated Livelihood Cooperative, Inc., attesting to the full payment of its loan (P15.05 M) plus interest with LTFI;

2. Certification of the Manager, Rural Bank of Geron (Tarlac), Inc., attesting to the gradual liquidation of the loan granted to family-borrowers out of funds provided by LTFI;

3. Letter of Jover's Phil., expressing gratitude for the loan assistance extended for its export activities by LTFI;

4. Letter of the Tarlac Provincial Agricultural Officer i forming that the proceeds of the loan from LTFI have bee utilized in hybrid com production; and

5. Letter of the President of the Federation of Tobacco Leaf Producers of Tarlac, Inc., informing of the payment of 76 of the amount (P203,966.00) loaned to the Federation for tobacco production.

Petitioner's act, vis-a-vis the loan to LTFI, may have been promp by an over eagerness to accelerate the delivery of livelihood services to his provincemates. As the truism goes, however, the end does not always justify the means. Be that as it may, but without belaboring the propriety of the loan agreement aforementioned, some measure of leniency may be accorded petitioner as the purpose of his suspen sion may have made its mark.

WHEREFORE, Governor Mariano Un Ocampo III is hereby granted executive clemency in the sense that his ninety-day suspension is hereby reduced to the period already served.

SO ORDERED.

(Annex "F", Petition; pp. 25-26, Rollo)

By virtue of the aforequoted Resolution, respondent governor reassumed the governorship of the province, allegedly withou any notification made to the petitioner.

Petitioner posits that the issuance by public respondent of the May 15, 1991 Resolution was "whimsical, capricious and despotic, and constituted grave abuse of discretion amounting lack of jurisdiction," (p. 6, petition) basically on the ground th executive clemency could be granted by the President only in criminal cases as there is nothing in the statute books or even in the Constitution which allows the grant thereof in administrative cases. Petitioner also contends that since respondent governor refused to recognize his suspension (having reassumed the governorship in gross defiance of the suspension order), executive clemency cannot apply to him; that his rights to due process were violated because the grant of executive clemency was so sudden that he was not even notified thereof; and that despite a finding by public respondent of impropriety in the loan transaction entered into by respondent governor, the former failed to justify the reduction of the penalty of suspension on the latter. Petitioner further alleges that the exftutive clemency granted by public respondent was "the product of a hocus-pocus strategy" (p. 1, Manifestation with Motion, etc.) because there was allegedly no real petition for the grant of executive clemency filed by respondent govemor.

Batas Pambansa Blg. 337 provides:

Sec. 63. Preventive Suspension. — (1) Preventive suspension may be imposed by the Minister of Local Government if the respondent is a provincial or city official, ...

(2) Preventive suspension may be imposed at any time after the issues are joined, when there is reasonable ground to believe that the respondent has committed the act or acts complained of, when the evidence of culpability is strong, when the gravity of the offense s warrants, or when the continuance in office of the respondent coul influence the witnesses or pose a threat to the safety and integrity the records and other evidence. In all cases, preventive suspension shall not extend beyond sixty days after the start of said suspension.

(3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office without prejudice to the continuation the proceedings against him until its termination. (Emphasis supplied)

It is admitted by petitioner that since March 1, 1991, he has assumed the governorship. A portion of the petition is hereon der quoted as follows:

7. [On February 28, 1991], and in accordance with the provisions of the Local Government Code (Sec. 66, Chapter 4, Batas Pambansa Blg. 337), to the effect that the decision of the Office of the President in an administrative suspension of local officials shall be immediately executory without prejudice to appeal to appropriate courts, Petitioner Llamas took his oath of office as acting govemor. Under the administrative suspension order, Llamas had up to May 31 [sic 29] 1991 as acting governor;

8. A copy of this oath of office is attached and made a part hereof as Annex B;

9. Significantly, this oath of office was sworn to by Petitioner Llamas before Secretary Santos of the newly created Department Interior and Local Government, as shown by the lower portion Annex B, and by a picture of the oathtaking itself, attached and mad a part hereof as Annex B-1;

10. Subsequently, Petitioner Llamas and Respondent Ocampo met, where Ocampo was shown Llamas' oath of office. During meeting, held in the presence of all department heads at the provi cial capitol and in the presence of various local government offici and representatives of the media, Ocampo agreed to turn over reigns of the provincial government to Petitioner;

11. In fact, Ocampo had asked the department heads and all other officials of the provincial government of Tarlac to extend their cooperation to Llamas, during the ninety days that the latter would assume the governorship;

12. And, as if this was not enough, Ocampo even made announcements in the media that he was allowing Petitioner Llamas to perform his functions as acting governor at the Office of the Govern at the Capitol where he (Ocampo) used to hold office (true enough Ocampo has subsequently allowed Llamas to hold office at the of the Governor, with Ocampo even escorting the acting therein last March 4, 1991);

l 3. An account of Ocampo's acceptance of his suspension and of his having turned over his office to Petitioner Llamas was published, front page, in the March 5, 1991 issue of the Manila Bulletin. A copy of this news account is attached and made a part hereof as Annex C);

14. Furthermore, various other officials, President Aquino Rep. Jose Cojuangco included, have extended recognition to Petitions Llamas' assumption of the governorship. Llamas met with President Aquino and Rep. Cojuangco and, during this meeting, the two highest officials of the land have asked Llamas to discharge his duties acting governor;

15. Secretary Santos, for that matter, has issued a designation to Tarlac Senior Board Member Aganon, dated March 18, 1991, a pointing bim as acting vice governor of the province, "in view of the suspension of Gov. Mariano Un Ocampo III, and the assumption Vice Governor Rodolfo Llamas as acting governor." A copy of this designation is attached and made a part hereof as Annex D;

x x x           x x x          x x x

30. ... [T]he reassumption ceremony by [Governor] Ocampo was held [in the] morning of May 21, 1991 ... (pp- 2-4 & 7, Petition; pp. 3-5 & 8, Rollo)

It is prayed in the instant petition dated May 21, 1991 that:

b. In the meantime that this action is pending, and irnmediately upon the filing hereof, a temporary restraining order be issued stopping the Respondents from enforcing, in any manner, the aforesaid contested resolution, and Respondent Ocampo, firom continuing with his reassumption of the governorship. IN THE ALTERNATIVE, that a cease and desist order be issued against Respondent Ocampo stopping him from continuing with hiii reassumption of the governorship.

Let us first deal with the issue on jurisdiction. Respondent govemor avers that since under the Constitution fiffl discretionary authority is granted to the President on the exercise of executive clemency, the same constitutes a political question which is beyond judicial review.

Such a rule does not hold true in the case at bar. While it is true that courts cannot inquire into the manner in which the President's discretionary powers are exercised or into the wisdom for its exercise, it is also a settled rule that when the issue involved concerns the validity of such discretionary powers or whether said powers are within the limits prescribed by the Constitution, We will not decline to exercise our power of judicial review. And such review does not constitute a modification or correction of the act of the President, nor does it constitute interference with the functions of the President. In this connection, the case of Tanada and Macapagal vs. Cuenco, et al., 103 Phil. 1051, is very enlightening, and We quote:

Elsewhere in this treatise the well-known and well-established principle is considered that it is not within the province of the courts to pass judgment upon the policy of legislative or executive action. Where, therefore, discretionary powers are granted by the Consfitution or by statute, the manner in which those powers are exercised is not subject to judicial review. The courts, therefore, concern themselves only with the question as to the existence and extent of these discretionary powers.

As distinguished from the judicial, the legislative and executive departments are spoken of as the political departments of government because in very many cases their action is necessarily dictated by considerations of public or political policy. These considerations of public or political policy of course will not permit the legislature to violate constitutional provisions, or the executive to exercise authority not granted him by the Constitution or by statute, but, within these limits, they do permit the departments, separately or together, to recognize that a certain set of facts exists or that a given status exists, and these determinations, together with the consequences that flow therefrom, may not be traversed in the courts. (Willoughby on the Constitution of the United States, Vol. 3, p. 1326).

x x x           x x x          x x x

What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be exercised by the people in their primary political capacity, or that it has been specifically delegated to some other department or particular officer of the goverrunent, with discretionary power to act. See State vs. Cunningham, 81 Wis. 497, 51 L.R.A. 561; In Re Gunn, 50 Fan. 155; 32 Pac. 470, 948, 19 L. RA. 519; Green vs. Mills, 69 Fed. 852, 16, C. CA 516, 30 L.R.A- 90; Fletcher vs. Tuttle, 151 111, 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus the Legislature may in its discretion determine whether it will pass a law or submit a proposed constitutional amendment to the people. The courts have no judicial control over such matters, not merely because they involve political question, but because they are matters which the people have by the Constitute delegated to the Legislature. The Governor may exercise the powers delegated to him, free from judicial control, so long as he observes the laws and acts within the limits of the power conferred. His discretionary acts cannot be controllable, not primarily because they are of a political nature, but because the Constitution and laws have placed the particular matter under his control. But every officer under a constitutional government must act according to law and subject him to the restraining and controlling power of the people, acting through the courts, as well as through the executive or the Legislature. One department is just as representative as the other, and the judiciary the department which is charged with the special duty of determinining the limitations which the law places upon all official action. The recognition of this principle, unknown except in Great Britain and America, is necessary, to "the end that the government may be one of laws and not men" — words which Webster said were the greatest contained in any written constitutional document.

Besides, under the 1987 Constitution, the Supreme Court has been conferred an "expanded jurisdiction" to review the decisions of the other branches and agencies of the government to determine whether or not they have acted within the bounds of the Constitution (See Art. VIII, Sec. 1, Constitution). "Yet, in the exercise thereof, the Court is to merely check whether or not the govermental branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred or has a different view" (Co vs. Electoral Tribunal of the House of Representatives & Ong, G.R. Nos. 92191-92 and Balanquit vs. Electoral Tribunal of the House of Representatives & Ong, G.R Nos. 92202-03, July 30, 1991).

In the case at bar, the nature of the question for determination is not purely political. Here, we are called upon to decide whether under the Constitution the President may grant executive clemency in administrative cases. We must not overlook the fact that the exercise by the President of her power of executive clemency is subject to constitutional l'um'tations. We will merely check whether the particular measure in question has been in accordance with law. In so doing, We will not concern ourselves with the reasons or motives which actuate the President as such is clearly beyond our power of judicial review.

Petitioner's main argument is that the President may grant executive clemency only in criminal cases, based on Article VII, Section 19 of the Constitution which reads:

Sec. 19. Except in cases of impeachment, or as otherwise pro vided in this Constitution, the President may grant reprieves, commu tations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the members of the Congress. (Emphasis supplied)

According to the petitioner, the qualifying phrase "after conviction by final judgment" applies solely to criminal cases, and no other law allows the grant of executive clemency or pardon to anyone who has been "convicted in an administrative case," allegedly because the word "conviction" refers only to criminal cases (par. 22-b, c, d, Petition). Petitioner, however, describes in his very own words, respondent governor as one who has been "convicted in an administrative case" (par. 22-a, petition). Thus, petitioner concedes that the word "conviction" may be used either in a criminal case or in an administrative case. In Layno, Sr. vs. Sandiganbayan, 136 SCRA 536, We ruled:

For misfeasance or malfeasance ... any [elective official] could ... be proceeded against administratively or ... criminally. In either case, his culpability must be established ...

It is also important to note that respondent govemor's Motion for Reconsideration filed on March 1, 1991 was withdrawn in his petition for the grant of executive clemency, which fact rendered the Resolution dated February 26, 1991 affirming the DLG Decision (which found respondent governor guilty of neglect of duty and/or abuse of authority and which suspended him for ninety (90) days) final.

Moreover, applying the doctrine "Ubi lex non distinguit, nec nos distinguire debemos," We cannot sustain petitioner's view. In other words, if the law does not distinguish, so We must no distinguish. The Constitution does not distinguish between which cases executive clemency may be exercised by the President, with the sole exclusion of impeachment cases. By the same token, if executive clemency may be exercised only in criminal cases, it would indeed be unnecessary to provide for the exclusion of impeachment cases from the coverage of Article VII, Section 19 of the Constitution. Following petitioner's proposed interpretation, cases of impeachment are automatically excluded inasmuch as the same do not necessarily involve criminal offenses.

In the same vein, We do not clearly see any valid and convincing reason why the President cannot grant executive clemency in administrative cases. It is Our considered view that if the President can grant reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with much more reason can she grant executive clemency in administrative cases, which are clearly less serious than criminal offenses.

A number of laws impliedly or expressly recognize or support the exercise of the executive clemency in administrative cases.

Under Sec. 43 of P.D. 807, "In meritorious cases, ..., the President may commute or remove administrative penalties or disabilities issued upon officers and employees, in disciplinary cases, subject to such terms and conditions as he may impose in the interest of the service."

During the deliberations of the Constitutional Commission, a subject of deliberations was the proposed amendment to Art. VII, Sec. 19 which reads as follows: "However, the power to grant executive clemency for violation of corrupt practices laws may be limited by legislation."The Constitutional Commission, however, voted to remove the amendment, since it was in derogation of the powers of the President. As Mr. Natividad stated:

I am also against this provision which will again chip more powers from the President. In case of other criminals convicted in our society we extend probation to them while in this case, they have already been convicted and we offer mercy. The only way we can offer mercy to them is through this executive clemency extended to them by the President. If we still close this avenue to them, they would be prejudiced even worse than the murderers and the more vicious killers in our society ....

The proposal was primarily intended to prevent the President from protecting his cronies. Manifestly, however, the Commission preferred to trust in the discretion of Presidents and refrained from putting additional limitations on his clemency powers. (II RECORD of the Constitutional Commission, 392, 418-419, 524-525)

It is evident from the intent of the Constitutional Commission, therefore, that the President's executive clemency powers may not be limited in terms of coverage, except as already provided in the Constitution, that is, "no pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules and regulations shall be granted by the President without the favorable recommendation of the COMELEC" (Article IX, C, Section 5, Constitution). If those already adjudged guilty criminally in court may be pardoned, those adjudged guilty administratively should likewise be extended the same benefit.

In criminal cases, the quantum of evidence required to convict an individual is proof beyond reasonable doubt, but the Constitution grants to the President the power to pardon the act done by the proved criminal and in the process exempts him from punishment therefor. On the other hand, in administrative cases, the quantum of evidence required is mere substantial evidence to support a decision, not to mention that as to the admissibility of evidence, administrative bodies are not bound by the technical and rigid rules of admissibility prescribed in criminal cases. It will therefore be unjust and unfair for those found guilty administratively of some charge if the same effects of pardon or executive clemency cannot be extended to them, even in the sense of modifying a decision to subserve the interest of the public. (p. 34, Comment of public respondent)

Of equal importance are the following provisions of Executive Order No. 292, otherwise known as the Administrative Code of 1987, Section I, Book III of which provides:

SECTION 1. Power of Control. — The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.

SECTION 38. Definition of Administrative Relationships. — Unless otherwise expressly stated in the Code or in other laws defining the special relationships of particular agencies, administrative relationships shall be categorized and defined as follows:

(1) Supervision and Control. — Supervision and control shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs. Unless a different meaning is explicitly provided in the specific law governing the relationship of particular agencies the word "control" shall encompass supervision and control as defined in this paragraph. ... (emphasis supplied)

The disciplinary authority to investigate, suspend, and remove provincial or city officials devolves at the first instance on the Department of Interior and Local Government (Secs. 61 and 65, B.P. Blg. 337) and ultimately on the President (Sec. 66). Implicit in this authority, however, is the "supervision and control" power of the President to reduce, if circumstances so warrant, the imposable penalty or to modify the suspension or removal order, even "in the sense" of granting executive clemency. "Control," within the meaning of the Constitution, is the power to substitute one's own judgment for that of a subordinate. Under the doctrine of Qualified Political Agency, the different executive departments are mere adjuncts of the President. Their acts are presumptively the acts of the President until countermanded or reprobated by her (Vinena v. Secretary, 67 Phil. 451; Free Telephone Workers Union vs. Minister of Labor and Employment, 108 SCRA 767 [1981]). Replying upon this view, it is urged by the Solicitor General that in the present case, the President, in the exercise of her power of supervision and control over all executive departments, may substitute her decision for that of her subordinate, most especially where the basis therefor would be to serve the greater public interest. It is clearly within the power of the President not only to grant "executive clemency" but also to reverse or modify a ruling issued by a subordinate against an erring public official, where a reconsideration of the facts alleged would support the same. It is in this sense that the alleged executive clemency was granted, after adducing reasons that subserve the public interest. — "the relative success of . . . livelihood loan program." (pp. 39-40, Comment of public respondent)

We wish to stress however that when we say the President can grant executive clemency in administrative cases, We refer only to all administrative cases in the Executive branch, not in the Judicial or Legislative branches of the government.

Noteworthy is the fact that on March 1, 1991, respondent governor filed a motion for reconsideration and the same may be regarded as implicitly resolved, not only because of its withdrawal but also because of the executive clemency which in effect reduced the penalty, conformably with the power of "control."

On petitioner's argument that private respondent's motion for reconsideration has abated the running of the reglementary period for finality of judgment in O.P. Case No. 4480 (that is, there being no final judgment to speak of, the pardon granted was premature and of no effect, We reiterate the doctrine that upon acceptance of a presidential pardon, the grantee is deemed to have waived any appeal which he may have filed. Thus, it was held that:

The commutation of the penalty is impressed with legal significance. That is an exercise of executive clemency embraced in the pardoning power. According to the Constitution: "The President may except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures and, with the concurrence of the Batasang Pambansa, grant amnesty. "Once granted, it is binding and effective. It serves to put an end to this appeal." (Mansanto v. Factoran, Jr., G.R. No. 78239, 170 SCRA 190. 196). (See also Peo v. Crisola, 129 SCRA 13)

Consequently, respondent governor's acceptance of the presidential pardon "serves to put an end" to the motion for reconsideration and renders the subject decision final, that of the period already served.

Finally, petitioner's argument that his constitutional rights to due process were violated is uruneritorious. Pardon has been defined as "the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended and not communicated officially to the court. ..." (Bernas, The Constitution of the Philippines, Vol. II, First Ed. 1988, pp. 239-240, citing U.S. v. Wilson, 7 Pet. 150 [U.S. 1833]). Thus, assuming that petitioner was not notified of the subject pardon, it is only because said notice is unnecessary. Besides, petitioner's claim that respondent governor has not begun serve sentence is belied by his very own factual allegations in his petition, more particularly that he served as Acting Governor of Tarlac effective from the date he took his Oath of Office on February 28, 1991 up to the time respondent govemor reassumed the governorship of Tarlac on May 21, 1991 (par. 30 petition). It is, therefore, error to say that private respondent did not serve any portion of the 90-day suspension meted upon him.

We fail to see any grave abuse of discretion amounting to lack or in excess of jurisdiction committed by public respondent.

WHEREFORE, judgment is hereby rendered: (1) DECLARING that the President did not act arbitrarily or with abuse, much less grave abuse of discretion in issuing the May 15, 1991 Resolution granting on the grounds mentioned therein, executive clemency to respondent governor and that, accordingly, the same is not unconstitutional (without prejudice to criminal proceedings which have been filed or may be filed against respondent governor), and (2) DENYING the rest of the prayers in the petition for being unmeritorious, moot and academic. No costs.

SO ORDERED.

Fernan, C.J., Bidin, Sarmiento, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.
Melencio-Herrera, J., is on leave.

 

 

 

Separate Opinions

 

CRUZ, J., dissenting:

I concur in the result and would s the challenged resolution of May 18, 1991, on the basis only of the Fresident's control power. I think the discussion of the pardoning power is unnecessary and may even be misleading as the ponencia itself says that it was not by virtue thereof that the private respondent's penalty was reduced. The correct approach, if I may spectfully suggest it, is to uphold the resolution solely on strength of the President's power of "control of all the executive departments, bureaus and offices" under Article VII, Sect 17, of the Constitution.

We have held in many cases that a Cabinet member is an alter ego of the President whose acts may be affirmed, modified reversed by the latter in his discretion. (Villena v. Sec. of Interior, 67 Phil. 451; Lacson-Magallanes v. Paño, 21 SC 895; Gascon v. Arroyo, 178 SCRA 582; De Leon v. Carpio, 1 SCRA 457). What happened in this case was that President Aquino saw fit to amend the decision rendered by the Secretary of Local Government on September 21, 1990, by reducing 90-day suspension imposed on Gov. Ocampo. The President had the authority to do this, and she could exercise it through Executive Secretary. His act, not having been "reprobated disauthorized" by her, is presumed to be the act of the Preside herself.

The Court is not concerned with the wisdom of that act, on its legality. I believe the act is legal but reserve judgment on its wisdom.

 

PADILLA, J., dissenting:

I vote to grant the petition which seeks to annul the 15 May 1991 resolution of the Office of the President, for the reason that the respondent Executive Secretary, presumably acting on behalf of the President, had acted in excess of his jurisdiction in granting executive clemency to private respondent Ocampo III by reducing the ninety-day suspension imposed upon him to the period he had already served.

Under the Local Government Code (BP 337), — the law in force at the time material to this case, the authority of the President over local governments is one of general supervision only, to ensure that local affairs are administered according law. General supervision over local governments includes the authority to order an investigation of the conduct of local officials whenever necessary. ¹ The 1987 Constitution as well as the Administrative Code of 1987 also grants to the President the power of general supervision over local governments. ^{2In taking disciplinary action against local elective officials, the President has no inherent power to suspend or remove them unless authorized by law and on grounds set forth by the latter. 3} Section 60 of the Local Government Code ⁴ enumerates the acts for which an elective local official may be suspended or removed. The Secretary of Interior and Local Government is given the authority to try complaints filed against any elective city or provincial official. ⁵ The decision of removal or suspension by the Secretary of Interior and Local Government is appealable to the Office of the President. ⁶ The appellate jurisdiction of the President to review, reverse or modify the decision of the Secretary of Interior and Local Government does not carry with it the power to grant executive clemency. Neither does the Local Government Code expressly vest upon the President the power to commute or lift the administrative sanctions imposed upon erring, local elective officials after the decision has become final.

The suspension of private respondent Ocampo III for ninety (90) days was imposed after investigation and hearing of the complaint against him. The decision of suspension was rendered after a finding by the Secretary of Interior and Local Government that private respondent had committed and which was manifestly and grossly disadvantageous to the Provincial Government of Tarlac. Thus, the suspension meted o to private respondent is entirely distinct and separate from preventive suspension imposed on local elective officials prior the final determination of the complaint filed against them, which is limited to only sixty (60) days under the Local Government Code. A preventive suspension may be imposed after issues have been joined and before the termination of the case when there is reasonable ground to believe that respondent had committed the act complained of and the evidence of culpability is strong, when the gravity of the offense warrants such preventive suspension; or when the continuance in office of the respondent could influence the witnesses or pose a threat to the safe and integrity of the records and other evidence. ⁷

^{In contrast, the administrative sanction of suspension imposed after the case has been heard is subject to the limitation that it must not exceed the unexpired term of the respondent nor bar the respondent from an elective public office for as long as he meets the qualifications required by law. 8} Considering that private respondent's suspension was not a preventive one but a punitive sanction, the limitation of sixty (60) days does not apply.

At the time the questioned grant of executive clemency was issued by respondent Secretary to private respondent, a motion for reconsideration by private respondent Ocampo III was pending. Assuming (without admitting) that the constitutional power of the President to grant executive clemency extends to administrative sanctions imposed in an administrative proceeding such reduction of the period of suspension of private respondent was premature under the circumstances. Had respondent Secretary, acting for the President, really believed that the origin 90-day period of suspension imposed upon private respondent was too harsh, the President could have modified the imposed penalty by reducing the same or entirely lifting such suspension in resolving the pending motion for reconsideration. Furthermore, private respondent had already served eighty one (81) days out of the 90-day suspension when the executive clemency was extended. With only nine (9) days left unserved of the suspension imposed, the reason behind the grant of such executive clemency to private respondent appears dubious, if not entirely whimsical.

It is the contention of private respondent that the reduction of his suspension was granted in accordance with the Constitution. I disagree. It is my opinion that the constitutional grant of power to the President to accord executive clemency, does not extend to administrative sanctions imposed, in an administrative proceeding. Sec. 19, Art. VII of the 1987 Constitution clearly provides that —

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. (Emphasis supplied)

The philosophy behind the grant of power to the President to grant executive clemency is founded on the recognition that human institutions are imperfect and that there are infirmities, deficiencies or flaws in the administration of justice. The power exists as an instrument or means for correcting these infirmities and also for mitigating whatever harshness might be generated by a too strict an application of the law. ^{9 This principle applies to all criminal offenses committed against the state.}

^{Pardon is an act of grace proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is a voluntary act of the sovereign, granting outright remission of guilt and declaring record that a particular individual is to be relieved of the legal consequences of a particular crime. 10 Amnesty commonly d notes a general pardon to rebels for their treason or other high political offenses, or the forgiveness which one sovereign grants to the subjects of another, who have offended by some breach the law of nations. 11}

^{A commutation of sentence is the reduction of penalty imposed 12} while reprieve is defined as the temporary suspension of the execution of a sentence, especially of a sentence of death. ¹³ The object of commutation of sentence is the rehabilitation the criminal offender. ¹⁴ The law of respite or reprieve appeal to apply only to capital sentences.

^{From the foregoing definitions of the different forms by which the President may exercise the power to grant executive clemency, it is plainly evident that the intention of the Constitution is to empower and enable the President to afford relief from enforcement of the criminal law which imposes penalty and which appears unduly harsh. However, the President's pardoning power cannot be used to release or destroy the civil rights or remedies of private individuals, 16} or to relieve against private obligations, civil penalties and forfeitures, or an order or judgment in a civil action or proceeding, or an administrative proceeding. ¹⁷

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

RUPERTO A. AMBIL, JR., Petitioner,vs.SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, FIRST DIVISION

Respondent. G.R. No. 175457               July 6, 2011

 

x - - - - - - - - - - - - - - - - - - - - - - -x

ALEXANDRINO R. APELADO, SR., Petitioner,vs.PEOPLE OF THE PHILIPPINES, Respondent. G.R. No. 175482

 

D E C I S I O N

VILLARAMA, JR., J.:

Before us are two consolidated petitions for review on certiorari filed by petitioner Ruperto A. Ambil, Jr.¹ and petitioner Alexandrino R. Apelado Sr.² assailing the Decision³ promulgated on September 16, 2005 and Resolution⁴ dated November 8, 2006 of the Sandiganbayan in Criminal Case No. 25892.

The present controversy arose from a letter⁵ of Atty. David B. Loste, President of the Eastern Samar Chapter of the Integrated Bar of the Philippines (IBP), to the Office of the Ombudsman, praying for an investigation into the alleged transfer of then Mayor Francisco Adalim, an accused in Criminal Case No. 10963 for murder, from the provincial jail of Eastern Samar to the residence of petitioner, then Governor Ruperto A. Ambil, Jr. In a Report⁶ dated January 4, 1999, the National Bureau of Investigation (NBI) recommended the filing of criminal charges against petitioner Ambil, Jr. for violation of Section 3(e)⁷ of Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, as amended. On September 22, 1999, the new President of the IBP, Eastern Samar Chapter, informed the Ombudsman that the IBP is no longer interested in pursuing the case against petitioners. Thus, he recommended the dismissal of the complaint against petitioners.⁸

Nonetheless, in an Information⁹ dated January 31, 2000, petitioners Ambil, Jr. and Alexandrino R. Apelado, Sr. were charged with violation of Section 3(e) of R.A. No. 3019, together with SPO3 Felipe A. Balano. Upon reinvestigation, the Office of the Ombudsman issued a Memorandum¹⁰ dated August 4, 2000, recommending the dismissal of the complaint as regards Balano and the amendment of the Information to include the charge of Delivering Prisoners from Jail under Article 156¹¹ of the Revised Penal Code, as amended, (RPC) against the remaining accused. The Amended Information¹² reads:

That on or about the 6th day of September 1998, and for sometime prior [or] subsequent thereto, [in] the Municipality of Borongan, Province of Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court, [the] above-named accused, Ruperto A. Ambil, Jr.[,] being then the Provincial Governor of Eastern Samar, and Alexandrino R. Apelado, being then the Provincial Warden of Eastern Samar, both having been public officers, duly elected, appointed and qualified as such, committing the offense in relation to office, conniving and confederating together and mutually helping x x x each other, with deliberate intent, manifest partiality and evident bad faith, did then and there wilfully, unlawfully and criminally order and cause the release from the Provincial Jail of detention prisoner Mayor Francisco Adalim, accused in Criminal Case No. 10963, for Murder, by virtue of a warrant of Arrest issued by Honorable Arnulfo P. Bugtas, Presiding Judge, RTC-Branch 2, Borongan, Eastern Samar, and thereafter placed said detention prisoner (Mayor Francisco Adalim) under accused RUPERTO A. AMBIL, JR.’s custody, by allowing said Mayor Adalim to stay at accused Ambil’s residence for a period of Eighty-Five (85) days, more or less which act was done without any court order, thus accused in the performance of official functions had given unwarranted benefits and advantage to detainee Mayor Francisco Adalim to the prejudice of the government.

CONTRARY TO LAW.

BAIL BOND RECOMMENDED: P30,000.00 each.¹³

On arraignment, petitioners pleaded not guilty and posted bail.

At the pre-trial, petitioners admitted the allegations in the Information. They reason, however, that Adalim’s transfer was justified considering the imminent threats upon his person and the dangers posed by his detention at the provincial jail. According to petitioners, Adalim’s sister, Atty. Juliana A. Adalim-White, had sent numerous prisoners to the same jail where Mayor Adalim was to be held.

Consequently, the prosecution no longer offered testimonial evidence and rested its case after the admission of its documentary exhibits. Petitioners filed a Motion for Leave to File Demurrer to Evidence with Reservation to Present Evidence in Case of Denial¹⁴ but the same was denied.

At the trial, petitioners presented three witnesses: petitioner Ambil, Jr., Atty. Juliana A. Adalim-White and Mayor Francisco C. Adalim.

Petitioner Ambil, Jr. testified that he was the Governor of Eastern Samar from 1998 to 2001. According to him, it was upon the advice of Adalim’s lawyers that he directed the transfer of Adalim’s detention to his home. He cites poor security in the provincial jail as the primary reason for taking personal custody of Adalim considering that the latter would be in the company of inmates who were put away by his sister and guards identified with his political opponents.¹⁵

For her part, Atty. White stated that she is the District Public Attorney of Eastern Samar and the sister of Mayor Adalim. She recounted how Mayor Adalim was arrested while they were attending a wedding in Sulat, Eastern Samar, on September 6, 1998. According to Atty. White, she sought the alternative custody of Gov. Ambil, Jr. after Provincial Warden and herein petitioner Apelado, Sr. failed to guarantee the mayor’s safety.¹⁶

Meanwhile, Francisco Adalim introduced himself as the Mayor of Taft, Eastern Samar. He confirmed his arrest on September 6, 1998 in connection with a murder case filed against him in the Regional Trial Court (RTC) of Borongan, Eastern Samar. Adalim confirmed Atty. White’s account that he spotted inmates who served as bodyguards for, or who are associated with, his political rivals at the provincial jail. He also noticed a prisoner, Roman Akyatan, gesture to him with a raised clenched fist. Sensing danger, he called on his sister for help. Adalim admitted staying at Ambil, Jr.’s residence for almost three months before he posted bail after the charge against him was downgraded to homicide.¹⁷

Petitioner Apelado, Sr. testified that he was the Provincial Jail Warden of Eastern Samar. He recalls that on September 6, 1998, SPO3 Felipe Balano fetched him at home to assist in the arrest of Mayor Adalim. Allegedly, Atty. White was contesting the legality of Mayor Adalim’s arrest and arguing with the jail guards against booking him for detention. At the provincial jail, petitioner was confronted by Atty. White who informed him that he was under the governor, in the latter’s capacity as a provincial jailer. Petitioner claims that it is for this reason that he submitted to the governor’s order to relinquish custody of Adalim.¹⁸

Further, petitioner Apelado, Sr. described the physical condition of the jail to be dilapidated and undermanned. According to him, only two guards were incharge of looking after 50 inmates. There were two cells in the jail, each housing 25 inmates, while an isolation cell of 10 square meters was unserviceable at the time. Also, there were several nipa huts within the perimeter for use during conjugal visits.¹⁹

On September 16, 2005, the Sandiganbayan, First Division, promulgated the assailed Decision²⁰ finding petitioners guilty of violating Section 3(e) of R.A. No. 3019. The court ruled that in moving Adalim to a private residence, petitioners have conspired to accord him unwarranted benefits in the form of more comfortable quarters with access to television and other privileges that other detainees do not enjoy. It stressed that under the Rules, no person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail.²¹

The Sandiganbayan brushed aside petitioners’ defense that Adalim’s transfer was made to ensure his safety. It observed that petitioner Ambil, Jr. did not personally verify any actual threat on Adalim’s life but relied simply on the advice of Adalim’s lawyers. The Sandiganbayan also pointed out the availability of an isolation cell and nipa huts within the 10-meter-high perimeter fence of the jail which could have been used to separate Adalim from other prisoners. Finally, it cited petitioner Ambil, Jr.’s failure to turn over Adalim despite advice from Assistant Secretary Jesus Ingeniero of the Department of Interior and Local Government.

Consequently, the Sandiganbayan sentenced petitioner Ambil, Jr. to an indeterminate penalty of imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months. In favor of petitioner Apelado, Sr., the court appreciated the incomplete justifying circumstance of obedience to a superior order and sentenced him to imprisonment for six (6) years and one (1) month to nine (9) years and eight (8) months.

Hence, the present petitions.

Petitioner Ambil, Jr. advances the following issues for our consideration:

I

WHETHER OR NOT SECTION 3(e) REPUBLIC ACT NO. 3019, AS AMENDED, APPLIES TO PETITIONER’S CASE BEFORE THE SANDIGANBAYAN.

II

WHETHER OR NOT A PUBLIC OFFICER SUCH AS PETITIONER IS A PRIVATE PARTY FOR PURPOSES OF SECTION 3(e), REPUBLIC ACT NO. 3019, AS AMENDED.

III

WHETHER OR NOT PETITIONER ACTED WITH DELIBERATE INTENT, MANIFEST PARTIALITY, EVIDENT BAD FAITH OR GROSS INEXCUSABLE NEGLIGENCE IN THE CONTEXT OF SAID SECTION 3(e).

IV

WHETHER OR NOT PETITIONER AS PROVINCIAL GOVERNOR AND JAILER UNDER SECTIONS 1730 AND 1733, ARTICLE III, CHAPTER 45 OF THE ADMINISTRATIVE CODE OF 1917 AND SECTION 61, CHAPTER V, REPUBLIC ACT 6975 HAS THE AUTHORITY TO TAKE CUSTODY OF A DETENTION PRISONER.

V

WHETHER OR NOT PETITIONER IS ENTITLED TO THE JUSTIFYING CIRCUMSTANCE OF FULFILLMENT OF A DUTY OR THE LAWFUL EXERCISE OF A RIGHT OR OFFICE.

VI

WHETHER OR NOT PETITIONER SHOULD HAVE BEEN ACQUITTED BECAUSE THE PROSECUTION EVIDENCE DID NOT ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.²²

For his part, petitioner Apelado, Sr. imputes the following errors on the Sandiganbayan:

I

THERE WAS MISAPPREHENSION OF FACTS AND/OR MISAPPLICATION OF THE LAW AND JURISPRUDENCE IN CONVICTING ACCUSED APELADO, EITHER AS PRINCIPAL OR IN CONSPIRACY WITH HIS CO-ACCUSED AMBIL.

II

IN THE ABSENCE OF COMPETENT PROOF BEYOND REASONABLE DOUBT OF CONSPIRACY BETWEEN ACCUSED AMBIL AND HEREIN PETITIONER, THE LATTER SHOULD BE ACCORDED FULL CREDIT FOR THE JUSTIFYING CIRCUMSTANCE UNDER PARAGRAPH 6, ARTICLE 11 OF THE REVISED PENAL CODE.

III

THE COURT A QUO’S BASIS IN CONVICTING BOTH ACCUSED AMBIL AND HEREIN PETITIONER OF HAVING GIVEN MAYOR ADALIM "UNWARRANTED BENEFITS AND ADVANTAGE TO THE PREJUDICE x x x OF THE GOVERNMENT IS, AT THE MOST, SPECULATIVE.²³

The issues raised by petitioner Ambil, Jr. can be summed up into three: (1) Whether he is guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019; (2) Whether a provincial governor has authority to take personal custody of a detention prisoner; and (3) Whether he is entitled to the justifying circumstance of fulfillment of duty under Article 11(5)²⁴ of the RPC.

Meanwhile, petitioner Apelado, Sr.’s assignment of errors can be condensed into two: (1) Whether he is guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019; and (2) Whether he is entitled to the justifying circumstance of obedience to an order issued by a superior for some lawful purpose under Article 11(6)²⁵ of the RPC.

Fundamentally, petitioner Ambil, Jr. argues that Section 3(e), R.A. No. 3019 does not apply to his case because the provision contemplates only transactions of a pecuniary nature. Since the law punishes a public officer who extends unwarranted benefits to a private person, petitioner avers that he cannot be held liable for extending a favor to Mayor Adalim, a public officer. Further, he claims good faith in taking custody of the mayor pursuant to his duty as a "Provincial Jailer" under the Administrative Code of 1917. Considering this, petitioner believes himself entitled to the justifying circumstance of fulfillment of duty or lawful exercise of duty.

Petitioner Apelado, Sr., on the other hand, denies allegations of conspiracy between him and petitioner Ambil, Jr. Petitioner Apelado, Sr. defends that he was merely following the orders of a superior when he transferred the detention of Adalim. As well, he invokes immunity from criminal liability.

For the State, the Office of the Special Prosecutor (OSP) points out the absence of jurisprudence that restricts the application of Section 3(e), R.A. No. 3019 to transactions of a pecuniary nature. The OSP explains that it is enough to show that in performing their functions, petitioners have accorded undue preference to Adalim for liability to attach under the provision. Further, the OSP maintains that Adalim is deemed a private party for purposes of applying Section 3(e), R.A. No. 3019 because the unwarranted benefit redounded, not to his person as a mayor, but to his person as a detention prisoner accused of murder. It suggests further that petitioners were motivated by bad faith as evidenced by their refusal to turn over Adalim despite instruction from Asst. Sec. Ingeniero. The OSP also reiterates petitioners’ lack of authority to take custody of a detention prisoner without a court order. Hence, it concludes that petitioners are not entitled to the benefit of any justifying circumstance.

After a careful review of this case, the Court finds the present petitions bereft of merit.

Petitioners were charged with violation of Section 3(e) of R.A. No. 3019 or the Anti-Graft and Corrupt Practices Act which provides:

Section. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

x x x x

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

In order to hold a person liable under this provision, the following elements must concur: (1) the accused must be a public officer discharging administrative, judicial or official functions; (2) he must have acted with manifest partiality, evident bad faith or gross inexcusable negligence; and (3) his action caused any undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions.²⁶

As to the first element, there is no question that petitioners are public officers discharging official functions and that jurisdiction over them lay with the Sandiganbayan. Jurisdiction of the Sandiganbayan over public officers charged with violation of the Anti-Graft Law is provided under Section 4 of Presidential Decree No. 1606,²⁷ as amended by R.A. No. 8249.²⁸ The pertinent portions of Section 4, P.D. No. 1606, as amended, read as follows:

SEC. 4. Jurisdiction.—The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade ‘27’ and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including:

(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan and provincial treasurers, assessors, engineers and other provincial department heads[;]

x x x x

In cases where none of the accused are occupying positions corresponding to Salary Grade ‘27’ or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg. 129, as amended.

x x x x

Thus, the jurisdiction of the Sandiganbayan over petitioner Ambil, Jr. is beyond question. The same is true as regards petitioner Apelado, Sr. As to him, a Certification²⁹ from the Provincial Government Department Head of the HRMO shows that his position as Provincial Warden is classified as Salary Grade 22. Nonetheless, it is only when none of the accused are occupying positions corresponding to salary grade ‘27’ or higher shall exclusive jurisdiction be vested in the lower courts. Here, petitioner Apelado, Sr. was charged as a co-principal with Governor Ambil, Jr., over whose position the Sandiganbayan has jurisdiction. Accordingly, he was correctly tried jointly with said public officer in the proper court which had exclusive original jurisdiction over them – the Sandiganbayan.

The second element, for its part, describes the three ways by which a violation of Section 3(e) of R.A. No. 3019 may be committed, that is, through manifest partiality, evident bad faith or gross inexcusable negligence.

In Sison v. People,³⁰ we defined "partiality," "bad faith" and "gross negligence" as follows:

"Partiality" is synonymous with "bias" which "excites a disposition to see and report matters as they are wished for rather than as they are." "Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud." "Gross negligence has been so defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property." x x x³¹

In this case, we find that petitioners displayed manifest partiality and evident bad faith in transferring the detention of Mayor Adalim to petitioner Ambil, Jr.’s house. There is no merit to petitioner Ambil, Jr.’s contention that he is authorized to transfer the detention of prisoners by virtue of his power as the "Provincial Jailer" of Eastern Samar.

Section 28 of the Local Government Code draws the extent of the power of local chief executives over the units of the Philippine National Police within their jurisdiction:

SEC. 28. Powers of Local Chief Executives over the Units of the Philippine National Police.—The extent of operational supervision and control of local chief executives over the police force, fire protection unit, and jail management personnel assigned in their respective jurisdictions shall be governed by the provisions of Republic Act Numbered Sixty-nine hundred seventy-five (R.A. No. 6975), otherwise known as "The Department of the Interior and Local Government Act of 1990," and the rules and regulations issued pursuant thereto.

In particular, Section 61, Chapter 5 of R.A. No. 6975³² on the Bureau of Jail Management and Penology provides:

Sec. 61. Powers and Functions. - The Jail Bureau shall exercise supervision and control over all city and municipal jails. The provincial jails shall be supervised and controlled by the provincial government within its jurisdiction, whose expenses shall be subsidized by the National Government for not more than three (3) years after the effectivity of this Act.

The power of control is the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.³³ An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself.³⁴

On the other hand, the power of supervision means "overseeing or the authority of an officer to see to it that the subordinate officers perform their duties."³⁵ If the subordinate officers fail or neglect to fulfill their duties, the official may take such action or step as prescribed by law to make them perform their duties. Essentially, the power of supervision means no more than the power of ensuring that laws are faithfully executed, or that subordinate officers act within the law.³⁶ The supervisor or superintendent merely sees to it that the rules are followed, but he does not lay down the rules, nor does he have discretion to modify or replace them.³⁷

Significantly, it is the provincial government and not the governor alone which has authority to exercise control and supervision over provincial jails. In any case, neither of said powers authorizes the doing of acts beyond the parameters set by law. On the contrary, subordinates must be enjoined to act within the bounds of law. In the event that the subordinate performs an act ultra vires, rules may be laid down on how the act should be done, but always in conformity with the law.

In a desperate attempt to stretch the scope of his powers, petitioner Ambil, Jr. cites Section 1731, Article III of the Administrative Code of 1917 on Provincial jails in support. Section 1731 provides:

SEC. 1731. Provincial governor as keeper of jail.—The governor of the province shall be charged with the keeping of the provincial jail, and it shall be his duty to administer the same in accordance with law and the regulations prescribed for the government of provincial prisons. The immediate custody and supervision of the jail may be committed to the care of a jailer to be appointed by the provincial governor. The position of jailer shall be regarded as within the unclassified civil service but may be filled in the manner in which classified positions are filled, and if so filled, the appointee shall be entitled to all the benefits and privileges of classified employees, except that he shall hold office only during the term of office of the appointing governor and until a successor in the office of the jailer is appointed and qualified, unless sooner separated. The provincial governor shall, under the direction of the provincial board and at the expense of the province, supply proper food and clothing for the prisoners; though the provincial board may, in its discretion, let the contract for the feeding of the prisoners to some other person. (Emphasis supplied.)

This provision survived the advent of the Administrative Code of 1987. But again, nowhere did said provision designate the provincial governor as the "provincial jailer," or even slightly suggest that he is empowered to take personal custody of prisoners. What is clear from the cited provision is that the provincial governor’s duty as a jail keeper is confined to the administration of the jail and the procurement of food and clothing for the prisoners. After all, administrative acts pertain only to those acts which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body or such as are devolved upon it³⁸ by the Constitution. Therefore, in the exercise of his administrative powers, the governor can only enforce the law but not supplant it.

Besides, the only reference to a transfer of prisoners in said article is found in Section 1737³⁹ under which prisoners may be turned over to the jail of the neighboring province in case the provincial jail be insecure or insufficient to accommodate all provincial prisoners. However, this provision has been superseded by Section 3, Rule 114 of the Revised Rules of Criminal Procedure, as amended. Section 3, Rule 114 provides:

SEC. 3. No release or transfer except on court order or bail.-No person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail.

Indubitably, the power to order the release or transfer of a person under detention by legal process is vested in the court, not in the provincial government, much less the governor. This was amply clarified by Asst. Sec. Ingeniero in his communication⁴⁰ dated October 6, 1998 addressed to petitioner Ambil, Jr. Asst. Sec. Ingeniero wrote:

06 October 1996

GOVERNOR RUPERTO AMBIL
Provincial Capitol
Borongan, Eastern Samar

Dear Sir:

This has reference to the letter of Atty. Edwin B. Docena, and the reports earlier received by this Department, relative to your alleged action in taking into custody Mayor Francisco "Aising" Adalim of Taft, that province, who has been previously arrested by virtue by a warrant of arrest issued in Criminal Case No. 10963.

If the report is true, it appears that your actuation is not in accord with the provision of Section 3, Rule 113 of the Rules of Court, which mandates that an arrested person be delivered to the nearest police station or jail.

Moreover, invoking Section 61 of RA 6975 as legal basis in taking custody of the accused municipal mayor is misplaced. Said section merely speaks of the power of supervision vested unto the provincial governor over provincial jails. It does not, definitely, include the power to take in custody any person in detention.

In view of the foregoing, you are hereby enjoined to conduct yourself within the bounds of law and to immediately deliver Mayor Adalim to the provincial jail in order to avoid legal complications.

Please be guided accordingly.

Very truly yours,

(SGD.)
JESUS I. INGENIERO
Assistant Secretary

Still, petitioner Ambil, Jr. insisted on his supposed authority as a "provincial jailer." Said petitioner’s usurpation of the court's authority, not to mention his open and willful defiance to official advice in order to accommodate a former political party mate,⁴¹ betray his unmistakable bias and the evident bad faith that attended his actions.

Likewise amply established beyond reasonable doubt is the third element of the crime. As mentioned above, in order to hold a person liable for violation of Section 3(e), R.A. No. 3019, it is required that the act constituting the offense consist of either (1) causing undue injury to any party, including the government, or (2) giving any private party any unwarranted benefits, advantage or preference in the discharge by the accused of his official, administrative or judicial functions.

In the case at hand, the Information specifically accused petitioners of giving unwarranted benefits and advantage to Mayor Adalim, a public officer charged with murder, by causing his release from prison and detaining him instead at the house of petitioner Ambil, Jr. Petitioner Ambil, Jr. negates the applicability of Section 3(e), R.A. No. 3019 in this case on two points. First, Section 3(e) is not applicable to him allegedly because the last sentence thereof provides that the "provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses, permits or other concessions" and he is not such government officer or employee. Second, the purported unwarranted benefit was accorded not to a private party but to a public officer.

However, as regards his first contention, it appears that petitioner Ambil, Jr. has obviously lost sight, if he is not altogether unaware, of our ruling in Mejorada v. Sandiganbayan⁴² where we held that a prosecution for violation of Section 3(e) of the Anti-Graft Law will lie regardless of whether or not the accused public officer is "charged with the grant of licenses or permits or other concessions." Following is an excerpt of what we said in Mejorada,

Section 3 cited above enumerates in eleven subsections the corrupt practices of any public officers (sic) declared unlawful. Its reference to "any public officer" is without distinction or qualification and it specifies the acts declared unlawful. We agree with the view adopted by the Solicitor General that the last sentence of paragraph [Section 3] (e) is intended to make clear the inclusion of officers and employees of officers (sic) or government corporations which, under the ordinary concept of "public officers" may not come within the term. It is a strained construction of the provision to read it as applying exclusively to public officers charged with the duty of granting licenses or permits or other concessions.⁴³ (Italics supplied.)

In the more recent case of Cruz v. Sandiganbayan,⁴⁴ we affirmed that a prosecution for violation of said provision will lie regardless of whether the accused public officer is charged with the grant of licenses or permits or other concessions.⁴⁵

Meanwhile, regarding petitioner Ambil, Jr.’s second contention, Section 2(b) of R.A. No. 3019 defines a "public officer" to include elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal from the government. Evidently, Mayor Adalim is one. But considering that Section 3(e) of R.A. No. 3019 punishes the giving by a public officer of unwarranted benefits to a private party, does the fact that Mayor Adalim was the recipient of such benefits take petitioners’ case beyond the ambit of said law?

We believe not.

In drafting the Anti-Graft Law, the lawmakers opted to use "private party" rather than "private person" to describe the recipient of the unwarranted benefits, advantage or preference for a reason. The term "party" is a technical word having a precise meaning in legal parlance⁴⁶ as distinguished from "person" which, in general usage, refers to a human being.⁴⁷ Thus, a private person simply pertains to one who is not a public officer. While a private party is more comprehensive in scope to mean either a private person or a public officer acting in a private capacity to protect his personal interest.

In the present case, when petitioners transferred Mayor Adalim from the provincial jail and detained him at petitioner Ambil, Jr.’s residence, they accorded such privilege to Adalim, not in his official capacity as a mayor, but as a detainee charged with murder. Thus, for purposes of applying the provisions of Section 3(e), R.A. No. 3019, Adalim was a private party.

Moreover, in order to be found guilty under the second mode, it suffices that the accused has given unjustified favor or benefit to another in the exercise of his official, administrative or judicial functions.⁴⁸ The word "unwarranted" means lacking adequate or official support; unjustified; unauthorized or without justification or adequate reason. "Advantage" means a more favorable or improved position or condition; benefit, profit or gain of any kind; benefit from some course of action. "Preference" signifies priority or higher evaluation or desirability; choice or estimation above another.⁴⁹

Without a court order, petitioners transferred Adalim and detained him in a place other than the provincial jail. The latter was housed in much more comfortable quarters, provided better nourishment, was free to move about the house and watch television. Petitioners readily extended these benefits to Adalim on the mere representation of his lawyers that the mayor’s life would be put in danger inside the provincial jail.

As the Sandiganbayan ruled, however, petitioners were unable to establish the existence of any risk on Adalim’s safety. To be sure, the latter would not be alone in having unfriendly company in lockup. Yet, even if we treat Akyatan’s gesture of raising a closed fist at Adalim as a threat of aggression, the same would still not constitute a special and compelling reason to warrant Adalim’s detention outside the provincial jail. For one, there were nipa huts within the perimeter fence of the jail which could have been used to separate Adalim from the rest of the prisoners while the isolation cell was undergoing repair. Anyhow, such repair could not have exceeded the 85 days that Adalim stayed in petitioner Ambil, Jr.’s house. More importantly, even if Adalim could have proven the presence of an imminent peril on his person to petitioners, a court order was still indispensable for his transfer.

The foregoing, indeed, negates the application of the justifying circumstances claimed by petitioners.

Specifically, petitioner Ambil, Jr. invokes the justifying circumstance of fulfillment of duty or lawful exercise of right or office. Under paragraph 5, Article 11 of the RPC, any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office does not incur any criminal liability. In order for this justifying circumstance to apply, two requisites must be satisfied: (1) the accused acted in the performance of a duty or in the lawful exercise of a right or office; and (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.⁵⁰ Both requisites are lacking in petitioner Ambil, Jr.’s case.

As we have earlier determined, petitioner Ambil, Jr. exceeded his authority when he ordered the transfer and detention of Adalim at his house. Needless to state, the resulting violation of the Anti-Graft Law did not proceed from the due performance of his duty or lawful exercise of his office.

In like manner, petitioner Apelado, Sr. invokes the justifying circumstance of obedience to an order issued for some lawful purpose. Under paragraph 6, Article 11 of the RPC, any person who acts in obedience to an order issued by a superior for some lawful purpose does not incur any criminal liability. For this justifying circumstance to apply, the following requisites must be present: (1) an order has been issued by a superior; (2) such order must be for some lawful purpose; and (3) the means used by the subordinate to carry out said order is lawful.⁵¹ Only the first requisite is present in this case.

While the order for Adalim’s transfer emanated from petitioner Ambil, Jr., who was then Governor, neither said order nor the means employed by petitioner Apelado, Sr. to carry it out was lawful. In his capacity as the Provincial Jail Warden of Eastern Samar, petitioner Apelado, Sr. fetched Mayor Adalim at the provincial jail and, unarmed with a court order, transported him to the house of petitioner Ambil, Jr. This makes him liable as a principal by direct participation under Article 17(1)⁵² of the RPC.

An accepted badge of conspiracy is when the accused by their acts aimed at the same object, one performing one part of and another performing another so as to complete it with a view to the attainment of the same object, and their acts although apparently independent were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments.⁵³

Conspiracy was sufficiently demonstrated by petitioner Apelado, Sr.’s willful cooperation in executing petitioner Ambil, Jr.’s order to move Adalim from jail, despite the absence of a court order. Petitioner Apelado, Sr., a law graduate, cannot hide behind the cloak of ignorance of the law. The Rule requiring a court order to transfer a person under detention by legal process is elementary. Truth be told, even petitioner governor who is unschooled in the intricacies of the law expressed reservations on his power to transfer Adalim. All said, the concerted acts of petitioners Ambil, Jr. and Apelado, Sr. resulting in the violation charged, makes them equally responsible as conspirators.

As regards the penalty imposed upon petitioners, Section 9(a) of R.A. No. 3019 punishes a public officer or a private person who violates Section 3 of R.A. No. 3019 with imprisonment for not less than six (6) years and one (1) month to not more than fifteen (15) years and perpetual disqualification from public office. Under Section 1 of the Indeterminate Sentence Law or Act No. 4103, as amended by Act No. 4225, if the offense is punished by a special law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same.1avvphi1

Thus, the penalty imposed by the Sandiganbayan upon petitioner Ambil, Jr. of imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months is in accord with law. As a co-principal without the benefit of an incomplete justifying circumstance to his credit, petitioner Apelado, Sr. shall suffer the same penalty.

WHEREFORE, the consolidated petitions are DENIED. The Decision of the Sandiganbayan in Criminal Case No. 25892 is AFFIRMED WITH MODIFICATION. We find petitioners Ruperto A. Ambil, Jr. and Alexandrino R. Apelado, Sr. guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019. Petitioner Alexandrino R. Apelado, Sr. is, likewise, sentenced to an indeterminate penalty of imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months.

With costs against the petitioners.

SO ORDERED.

Footnotes

⁷ SEC. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

x x x x

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

¹¹ Art. 156. Delivering prisoners from jail. - The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who shall remove from any jail or penal establishment any person confined therein or shall help the escape of such person, by means of violence, intimidation or bribery. If other means are used, the penalty of arresto mayor shall be imposed.

²⁴ Art. 11. Justifying circumstances. - The following do not incur any criminal liability:

x x x x

5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office.

x x x x

²⁵ Art. 11. Justifying circumstances. - The following do not incur any criminal liability:

x x x x

6. Any person who acts in obedience to an order issued by a superior for some lawful purpose.

²⁶ Ong v. People, G.R. No. 176546, September 25, 2009, 601 SCRA 47, 53-54.

²⁷ Revising Presidential Decree No. 1486 Creating a Special Court to be known as "Sandiganbayan" and for Other Purposes.

²⁸ An Act Further Defining the Jurisdiction of the Sandiganbayan, Amending for the Purpose Presidential Decree No. 1606, as amended, Providing Funds Therefor, and for Other Purposes.

²⁹ Records, Vol. I, p. 43.

³⁰ G.R. Nos. 170339, 170398-403, March 9, 2010, 614 SCRA 670.

³¹ Id. at 680.

³² An Act Establishing the Philippine National Police Under a Reorganized Department of the Interior and Local Government, and for Other Purposes.

³³ Drilon v. Lim, G.R. No. 112497, August 4, 1994, 235 SCRA 135, 140-141.

³⁹ SEC. 1737. Transfer of prisoners to jail of neighboring province.-In case there should be no jail in any province, or in case a provincial jail of any province be insecure or insufficient for the accommodation of all provincial prisoners, it shall be the duty of the provincial board to make arrangements for the safe-keeping of the prisoners of the province with the provincial board of some neighboring province in the jail of such neighboring province, and when such arrangement has been made it shall be the duty of the officer having custody of the prisoner to commit him to the jail of such neighboring province, and he shall be there detained with the same legal effect as though confined in the jail of the province where the offense for which he was arrested was committed.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

 

THIRD DIVISION

G.R. Nos. 120744-46               June 25, 2012

SALVADOR YAPYUCO y ENRIQUEZ, Petitioner,
vs.
HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 122677

MARIO D. REYES, ANDRES S. REYES and VIRGILIO A. MANGUERRA, Petitioners,
vs.
HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 122776

GERVACIO B. CUNANAN, JR. and ERNESTO PUNO, Petitioners,
vs.
HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents.

D E C I S I O N

PERALTA, J.:

Law enforcers thrust their lives in unimaginable zones of peril. Yet resort to wanton violence is never justified when their duty could be performed otherwise. A "shoot first, think later" disposition occupies no decent place in a civilized society. Never has homicide or murder been a function of law enforcement. The public peace is never predicated on the cost of human life.

These are petitions for review on certiorari under Rule 45 of the Rules of Court assailing the June 30, 1995 Decision¹ of the Sandiganbayan in Criminal Case Nos. 16612, 16613 and 16614 – cases for murder, frustrated murder and multiple counts of attempted murder, respectively. The cases are predicated on a shooting incident on April 5, 1988 in Barangay Quebiawan, San Fernando, Pampanga which caused the death of Leodevince Licup (Licup) and injured Noel Villanueva (Villanueva). Accused were petitioners Salvador Yapyuco, Jr. (Yapyuco) and Generoso Cunanan, Jr. (Cunanan) and Ernesto Puno (Puno) who were members of the Integrated National Police (INP)² stationed at the Sindalan Substation in San Fernando, Pampanga; Jose Pamintuan (Pamintuan) and Mario Reyes, who were barangay captains of Quebiawan and Del Carmen, respectively; Ernesto Puno, Andres Reyes and Virgilio Manguerra (Manguerra), Carlos David, Ruben Lugtu, Moises Lacson (Lacson), Renato Yu, Jaime Pabalan (Pabalan) and Carlos David (David), who were either members of the Civil Home Defense Force (CHDF) or civilian volunteer officers in Barangays Quebiawan, Del Carmen and Telebastagan. They were all charged with murder, multiple attempted murder and frustrated murder in three Informations, the inculpatory portions of which read:

Criminal Case No. 16612:

That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando, Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, all public officers, being then policemen, Brgy. Captains, Brgy. Tanod and members of the Civil Home Defense Force (CHDF), respectively, confederating and mutually helping one another, and while responding to information about the presence of armed men in said barangay and conducting surveillance thereof, thus committing the offense in relation to their office, did then and there, with treachery and evident premeditation, willfully, unlawfully and feloniously, and with deliberate intent to take the life of Leodevince S. Licup, attack the latter with automatic weapons by firing directly at the green Toyota Tamaraw jitney ridden by Leodevince S. Licup and inflicting multiple gunshot wounds which are necessarily mortal on the different parts of the body, thereby causing the direct and immediate death of the latter.

CONTRARY TO LAW.³

Criminal Case No. 16613:

That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando, Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, all public officers, being then policemen, Brgy. Captains, Brgy. Tanod and members of the Civil Home Defense Force (CHDF), respectively, confederating and mutually helping one another, and while responding to information about the presence of armed men in said barangay and conducting surveillance thereof, thus committing the offense in relation to their office, did then and there, with treachery and evident premeditation, willfully, unlawfully and feloniously, and with intent to kill, attack Eduardo S. Flores, Alejandro R. de Vera, Restituto G. Calma and Raul V. Panlican with automatic weapons by firing directly at the green Toyota Tamaraw jitney ridden by said Eduardo S. Flores, Alejandro R. de Vera, Restituto G. Calma and Raul V. Panlican, having commenced the commission of murder directly by overt acts of execution which should produce the murder by reason of some cause or accident other than their own spontaneous desistance.

CONTRARY TO LAW.⁴

Criminal Case No. 16614:

That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando, Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, all public officers, being then policemen, Brgy. Captains, Brgy. Tanod and members of the Civil Home Defense Force (CHDF), respectively, confederating and mutually helping one another, and while responding to information about the presence of armed men in said barangay and conducting surveillance thereof, thus committing the offense in relation to their office, did then and there, with treachery and evident premeditation, willfully, unlawfully and feloniously, and with intent of taking the life of Noel C. Villanueva, attack the latter with automatic weapons by firing directly at the green Toyota Tamaraw jitney driven by said Noel C. Villanueva and inflicting multiple gunshot wounds which are necessarily mortal and having performed all the acts which would have produced the crime of murder, but which did not, by reason of causes independent of the defendants’ will, namely, the able and timely medical assistance given to said Noel C. Villanueva, which prevented his death.

CONTRARY TO LAW.⁵

Hailed to court on April 30, 1991 after having voluntarily surrendered to the authorities,⁶ the accused – except Pabalan who died earlier on June 12, 1990,⁷ and Yapyuco who was then allegedly indisposed⁸ – entered individual pleas of not guilty.⁹ A month later, Yapyuco voluntarily surrendered to the authorities, and at his arraignment likewise entered a negative plea.¹⁰ In the meantime, Mario Reyes, Andres Reyes, David, Lugtu, Lacson, Yu and Manguerra jointly filed a Motion for Bail relative to Criminal Case No. 16612.¹¹ Said motion was heard on the premise, as previously agreed upon by both the prosecution and the defense, that these cases would be jointly tried and that the evidence adduced at said hearing would automatically constitute evidence at the trial on the merits.¹² On May 10, 1991, the Sandiganbayan granted bail in Criminal Case No. 16612.¹³ Yapyuco likewise applied for bail on May 15, 1991 and the same was also granted on May 21, 1991.¹⁴ Pamintuan died on November 21, 1992,¹⁵ and accordingly, the charges against him were dismissed.

At the July 4, 1991 pre-trial conference, the remaining accused waived the pre-trial inquest. ¹⁶ Hence, joint trial on the merits ensued and picked up from where the presentation of evidence left off at the hearing on the bail applications.

The prosecution established that in the evening of April 5, 1988, Villanueva, Flores, Calma, De Vera, Panlican and Licup were at the residence of Salangsang as guests at the barrio fiesta celebrations between 5:00 and 7:30 p.m.. The company decided to leave at around 7:30 p.m., shortly after the religious procession had passed. As they were all inebriated, Salangsang reminded Villanueva, who was on the wheel, to drive carefully and watch out for potholes and open canals on the road. With Licup in the passenger seat and the rest of his companions at the back of his Tamaraw jeepney, Villanueva allegedly proceeded at 5-10 kph with headlights dimmed. Suddenly, as they were approaching a curve on the road, they met a burst of gunfire and instantly, Villanueva and Licup were both wounded and bleeding profusely.¹⁷

Both Flores and Villanueva, contrary to what the defense would claim, allegedly did not see any one on the road flag them down.¹⁸ In open court, Flores executed a sketch¹⁹ depicting the relative location of the Tamaraw jeepney on the road, the residence of Salangsang where they had come from and the house situated on the right side of the road right after the curve where the jeepney had taken a left turn; he identified said house to be that of a certain Lenlen Naron where the gunmen allegedly took post and opened fire at him and his companions. He could not tell how many firearms were used. He recounted that after the shooting, he, unaware that Licup and Villanueva were wounded, jumped out of the jeepney when he saw from behind them Pamintuan emerging from the yard of Naron’s house. Frantic and shaken, he instantaneously introduced himself and his companions to be employees of San Miguel Corporation but instead, Pamintuan reproved them for not stopping when flagged. At this point, he was distracted when Villanueva cried out and told him to summon Salangsang for help as he (Villanueva) and Licup were wounded. He dashed back to Salangsang’s house as instructed and, returning to the scene, he observed that petitioner Yu was also there, and Villanueva and Licup were being loaded into a Sarao jeepney to be taken to the hospital.²⁰ This was corroborated by Villanueva who stated that as soon as the firing had ceased, two armed men, together with Pamintuan, approached them and transferred him and Licup to another jeepney and taken to the nearby St. Francis Hospital.²¹

Flores remembered that there were two sudden bursts of gunfire which very rapidly succeeded each other, and that they were given no warning shot at all contrary to what the defense would say.²² He professed that he, together with his co-passengers, were also aboard the Sarao jeepney on its way to the hospital and inside it he observed two men, each holding long firearms, seated beside the driver. He continued that as soon as he and his companions had been dropped off at the hospital, the driver of the Sarao jeepney immediately drove off together with his two armed companions.²³ He further narrated that the day after the shooting, he brought Licup to the Makati Medical Center where the latter expired on April 7, 1988.²⁴ He claimed that all the accused in the case had not been known to him prior to the incident, except for Pamintuan whom he identified to be his wife’s uncle and with whom he denied having had any rift nor with the other accused for that matter, which would have otherwise inspired ill motives. ²⁵ He claimed the bullet holes on the Tamaraw jeepney were on the passenger side and that there were no other bullet holes at the back or in any other portion of the vehicle.²⁶

Salangsang, also an electrician at the San Miguel Corporation plant, affirmed the presence of his companions at his residence on the subject date and time, and corroborated Villanueva’s and Flores’ narration of the events immediately preceding the shooting. He recounted that after seeing off his guests shortly after the procession had passed his house and reminding them to proceed carefully on the pothole-studded roads, he was alarmed when moments later, he heard a volley of gunfire from a distance which was shortly followed by Flores’ frantic call for help. He immediately proceeded to the scene on his bicycle and saw Pamintuan by the lamppost just outside the gate of Naron’s house where, inside, he noticed a congregation of more or less six people whom he could not recognize. ²⁷ At this point, he witnessed Licup and Villanueva being loaded into another jeepney occupied by three men who appeared to be in uniform. He then retrieved the keys of the Tamaraw jeepney from Villanueva and decided to deliver it to his mother’s house, but before driving off, he allegedly caught a glance of Mario Reyes on the wheel of an owner-type jeepney idling in front of the ill-fated Tamaraw; it was the same jeepney which he remembered to be that frequently used by Yapyuco in patrolling the barangay. He claimed he spent the night at his mother’s house and in the morning, a policeman came looking for him with whom, however, he was not able to talk.²⁸

Salangsang observed that the scene of the incident was dark because the electric post in front of Naron’s house was strangely not lit when he arrived, and that none of the neighboring houses was illuminated. He admitted his uncertainty as to whether it was Yapyuco’s group or the group of Pamintuan that brought his injured companions to the hospital, but he could tell with certainty that it was the Sarao jeepney previously identified by Villanueva and Flores that brought his injured companions to the hospital.²⁹

Daisy Dabor, forensic chemist at the Philippine National Police Crime Laboratory in Camp Olivas, affirmed that she had previously examined the firearms suspected to have been used by petitioners in the shooting and found them positive for gunpowder residue. She could not, however, determine exactly when the firearms were discharged; neither could she tell how many firearms were discharged that night nor the relative positions of the gunmen. She admitted having declined to administer paraffin test on petitioners and on the other accused because the opportunity therefor came only 72 hours after the incident. She affirmed having also examined the Tamaraw jeepney and found eleven (11) bullet holes on it, most of which had punctured the door at the passenger side of the vehicle at oblique and perpendicular directions. She explained, rather inconclusively, that the bullets that hit at an angle might have been fired while the jeepney was either at a standstill or moving forward in a straight line, or gradually making a turn at the curve on the road.³⁰ Additionally, Silvestre Lapitan, administrative and supply officer of the INP-Pampanga Provincial Command tasked with the issuance of firearms and ammunitions to members of the local police force and CHDF and CVO members, identified in court the memorandum receipts for the firearms he had issued to Mario Reyes, Andres Reyes, Manguerra, Pabalan and Yapyuco.³¹

Dr. Pedro Solis, Jr., medico-legal consultant at the Makati Medical Center, examined the injuries of Villanueva and Licup on April 6, 1988. He recovered multiple metal shrapnel from the occipital region of Villanueva’s head as well as from the posterior aspect of his chest; he noted nothing serious in these wounds in that the incapacity would last between 10 and 30 days only. He also located a bullet wound on the front lateral portion of the right thigh, and he theorized that this wound would be caused by a firearm discharged in front of the victim, assuming the assailant and the victim were both standing upright on the ground and the firearm was fired from the level of the assailant’s waist; but if the victim was seated, the position of his thigh must be horizontal so that with the shot coming from his front, the trajectory of the bullet would be upward. He hypothesized that if the shot would come behind Villanueva, the bullet would enter the thigh of the seated victim and exit at a lower level.³²

With respect to Licup, Dr. Solis declared he was still alive when examined. On the patient, he noted a lacerated wound at the right temporal region of the head – one consistent with being hit by a hard and blunt object and not a bullet. He noted three (3) gunshot wounds the locations of which suggested that Licup was upright when fired upon from the front: one is a through-and-through wound in the middle lateral aspect of the middle portion of the right leg; another, through-and-through wound at the middle portion of the right forearm; and third one, a wound in the abdomen which critically and fatally involved the stomach and the intestines. He hypothesized that if Licup was seated in the passenger seat as claimed, his right leg must have been exposed and the assailant must have been in front of him holding the gun slightly higher than the level of the bullet entry in the leg. He found that the wound in the abdomen had entered from the left side and crossed over to and exited at the right, which suggested that the gunman must have been positioned at Licup’s left side. He explained that if this wound had been inflicted ahead of that in the forearm, then the former must have been fired after Licup had changed his position as a reaction to the first bullet that hit him. He said that the wound on the leg must have been caused by a bullet fired at the victim’s back and hit the jeepney at a downward angle without hitting any hard surface prior.³³

Dr. Solis believed that the wound on Licup’s right forearm must have been caused by a bullet fired from the front but slightly obliquely to the right of the victim. Hypothesizing, he held the improbability of Licup being hit on the abdomen, considering that he might have changed position following the infliction of the other wounds, unless there was more than one assailant who fired multiple shots from either side of the Tamaraw jeepney; however, he proceeded to rule out the possibility of Licup having changed position especially if the gunfire was delivered very rapidly. He could not tell which of Licup’s three wounds was first inflicted, yet it could be that the bullet to the abdomen was delivered ahead of the others because it would have caused Licup to lean forward and stoop down with his head lying low and steady.³⁴

Finally, Atty. Victor Bartolome, hearing officer at the National Police Commission (NAPOLCOM) affirmed that the accused police officers Yapyuco, Cunanan and Puno had been administratively charged with and tried for gross misconduct as a consequence of the subject shooting incident and that he had in fact conducted investigations thereon sometime in 1989 and 1990 which culminated in their dismissal from service.³⁵ Dolly Porqueriño, stenographer at the NAPOLCOM, testified that at the hearing of the administrative case, Yapyuco authenticated the report on the shooting incident dated April 5, 1988 which he had previously prepared at his office. This, according to her, together with the sketch showing the relative position of the responding law enforcers and the Tamaraw jeepney at the scene of the incident, had been forwarded to the NAPOLCOM Central Office for consideration.³⁶ The Sandiganbayan, in fact, subpoenaed these documents together with the joint counter-affidavits which had been submitted in that case by Yapyuco, Cunanan and Puno.

Of all the accused, only Yapyuco took the stand for the defense. He identified himself as the commander of the Sindalan Police Substation in San Fernando, Pampanga and the superior officer of petitioners Cunanan and Puno and of the accused Yu whose jurisdiction included Barangays Quebiawan and Telebastagan. He narrated that in the afternoon of April 5, 1988, he and his men were investigating a physical injuries case when Yu suddenly received a summon for police assistance from David, who supposedly was instructed by Pamintuan, concerning a reported presence of armed NPA members in Quebiawan. Yapyuco allegedly called on their main station in San Fernando for reinforcement but at the time no additional men could be dispatched. Hence, he decided to respond and instructed his men to put on their uniforms and bring their M-16 rifles with them.³⁷

Yapyuco continued that at the place appointed, he and his group met with Pamintuan who told him that he had earlier spotted four (4) men carrying long firearms. As if sizing up their collective strength, Pamintuan allegedly intimated that he and barangay captain Mario Reyes of nearby Del Carmen had also brought in a number of armed men and that there were likewise Cafgu members convened at the residence of Naron. Moments later, Pamintuan announced the approach of his suspects, hence Yapyuco, Cunanan and Puno took post in the middle of the road at the curve where the Tamaraw jeepney conveying the victims would make an inevitable turn. As the jeepney came much closer, Pamintuan announced that it was the target vehicle, so he, with Cunanan and Puno behind him, allegedly flagged it down and signaled for it to stop. He claimed that instead of stopping, the jeepney accelerated and swerved to its left. This allegedly inspired him, and his fellow police officers Cunanan and Puno,³⁸ to fire warning shots but the jeepney continued pacing forward, hence they were impelled to fire at the tires thereof and instantaneously, gunshots allegedly came bursting from the direction of Naron’s house directly at the subject jeepney.³⁹

Yapyuco recalled that one of the occupants of the jeepney then alighted and exclaimed at Pamintuan that they were San Miguel Corporation employees. Holding their fire, Yapyuco and his men then immediately searched the vehicle but found no firearms but instead, two injured passengers whom they loaded into his jeepney and delivered to nearby St. Francis Hospital. From there he and his men returned to the scene supposedly to investigate and look for the people who fired directly at the jeepney. They found no one; the Tamaraw jeepney was likewise gone.⁴⁰

Yapyuco explained that the peace and order situation in Barangay Quebiawan at the time was in bad shape, as in fact there were several law enforcement officers in the area who had been ambushed supposedly by rebel elements,⁴¹ and that he frequently patrolled the barangay on account of reported sightings of unidentified armed men therein.⁴² That night, he said, his group which responded to the scene were twelve (12) in all, comprised of Cunanan and Puno from the Sindalan Police Substation, ⁴³ the team composed of Pamintuan and his men, as well as the team headed by Captain Mario Reyes. He admitted that all of them, including himself, were armed.⁴⁴ He denied that they had committed an ambuscade because otherwise, all the occupants of the Tamaraw jeepney would have been killed. ⁴⁵ He said that the shots which directly hit the passenger door of the jeepney did not come from him or from his fellow police officers but rather from Cafgu members assembled in the residence of Naron, inasmuch as said shots were fired only when the jeepney had gone past the spot on the road where they were assembled.⁴⁶

Furthermore, Yapyuco professed that he had not communicated with any one of the accused after the incident because he was at the time very confused; yet he did know that his co-accused had already been investigated by the main police station in San Fernando, but the inquiries did not include himself, Cunanan and Puno.⁴⁷ He admitted an administrative case against him, Cunanan and Puno at the close of which they had been ordered dismissed from service; yet on appeal, the decision was reversed and they were exonerated. He likewise alluded to an investigation independently conducted by their station commander, S/Supt. Rolando Cinco. ⁴⁸

S/Supt Rolando Cinco, then Station Commander of the INP in San Fernando, Pampanga acknowledged the volatility of the peace and order situation in his jurisdiction, where members of the police force had fallen victims of ambuscade by lawless elements. He said that he himself has actually conducted investigations on the Pamintuan report that rebel elements had been trying to infiltrate the employment force of San Miguel Corporation plant, and that he has accordingly conducted "clearing operations" in sugarcane plantations in the barangay. He intimated that days prior to the incident, Yapyuco’s team had already been alerted of the presence of NPA members in the area. Corroborating Yapyuco’s declaration, he confessed having investigated the shooting incident and making a report on it in which, curiously, was supposedly attached Pamintuan’s statement referring to Flores as being "married to a resident of Barangay Quebiawan" and found after surveillance to be "frequently visited by NPA members." He affirmed having found that guns were indeed fired that night and that the chief investigator was able to gather bullet shells from the scene. ⁴⁹

Cunanan and Puno did not take the witness stand but adopted the testimony of Yapyuco as well as the latter’s documentary evidence.⁵⁰ Mario Reyes, Andres Reyes, Lugtu, Lacson, Yu and Manguera, waived their right to present evidence and submitted their memorandum as told.⁵¹

The Sandiganbayan reduced the basic issue to whether the accused had acted in the regular and lawful performance of their duties in the maintenance of peace and order either as barangay officials and as members of the police and the CHDF, and hence, could take shelter in the justifying circumstance provided in Article 11 (5) of the Revised Penal Code; or whether they had deliberately ambushed the victims with the intent of killing them.⁵² With the evidence in hand, it found Yapyuco, Cunanan, Puno, Manguera and Mario and Andres Reyes guilty as co-principals in the separate offense of homicide for the eventual death of Licup (instead of murder as charged in Criminal Case No. 16612) and of attempted homicide for the injury sustained by Villanueva (instead of frustrated murder as charged in Criminal Case No. 16614), and acquitted the rest in those cases. It acquitted all of them of attempted murder charged in Criminal Case No. 16613 in respect of Flores, Panlican, De Vera and Calma. The dispositive portion of the June 30, 1995 Joint Decision reads:

WHEREFORE, judgment is hereby rendered as follows:

I. In Crim. Case No. 16612, accused Salvador Yapyuco y Enriquez, Generoso Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y David, Andres Reyes y Salangsang and Virgilio Manguerra y Adona are hereby found GUILTY beyond reasonable doubt as co-principals in the offense of Homicide, as defined and penalized under Article 249 of the Revised Penal Code, and crediting all of them with the mitigating circumstance of voluntary surrender, without any aggravating circumstance present or proven, each of said accused is hereby sentenced to suffer an indeterminate penalty ranging from SIX (6) YEARS and ONE (1) DAY of prision correccional, as the minimum, to TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal, as the maximum; to indemnify, jointly and severally, the heirs of the deceased victim Leodevince Licup in the amounts of ₱77,000.00 as actual damages and ₱600,000.00 as moral/exemplary damages, and to pay their proportionate shares of the costs of said action.

II. In Crim. Case No. 16613, for insufficiency of evidence, all the accused charged in the information, namely, Salvador Yapyuco y Enriquez, Generoso Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y David, Carlos David y Bañez, Ruben Lugtu y Lacson, Moises Lacson y Adona, Renato Yu y Barrera, Andres Reyes y Salangsang and Virgilio Manguerra y Adona are hereby acquitted of the offense of Multiple Attempted Murder charged therein, with costs de oficio.

III. In Crim. Case No. 16614, accused Salvador Yapyuco y Enriquez, Generoso Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y David, Andres Reyes y Salangsang and Virgilio Manguerra y Adona are hereby found GUILTY beyond reasonable doubt as co-principals in the offense Attempted Homicide, as defined and penalized under Article 249, in relation to Article 6, paragraph 3, both of the Revised Penal Code, and crediting them with the mitigating circumstance of voluntary surrender, without any aggravating circumstance present or proven, each of said accused is hereby sentenced to suffer an indeterminate penalty ranging from SIX (6) MONTHS and ONE (1) DAY of prision correccional as the minimum, to SIX (6) YEARS and ONE (1) DAY of prision mayor as the maximum; to indemnify, jointly and severally, the offended party Noel Villanueva in the amount of ₱51,700.00 as actual and compensatory damages, plus ₱120,000.00 as moral/exemplary damages, and to pay their proportionate share of the costs of said action.

SO ORDERED.⁵³

The Sandiganbayan declared that the shootout which caused injuries to Villanueva and which brought the eventual death of Licup has been committed by petitioners herein willfully under the guise of maintaining peace and order;⁵⁴ that the acts performed by them preparatory to the shooting, which ensured the execution of their evil plan without risk to themselves, demonstrate a clear intent to kill the occupants of the subject vehicle; that the fact they had by collective action deliberately and consciously intended to inflict harm and injury and had voluntarily performed those acts negates their defense of lawful performance of official duty;⁵⁵ that the theory of mistaken belief could not likewise benefit petitioners because there was supposedly no showing that they had sufficient basis or probable cause to rely fully on Pamintuan’s report that the victims were armed NPA members, and they have not been able by evidence to preclude ulterior motives or gross inexcusable negligence when they acted as they did;⁵⁶ that there was insufficient or total absence of factual basis to assume that the occupants of the jeepney were members of the NPA or criminals for that matter; and that the shooting incident could not have been the product of a well-planned and well-coordinated police operation but was the result of either a hidden agenda concocted by Barangay Captains Mario Reyes and Pamintuan, or a hasty and amateurish attempt to gain commendation.⁵⁷

These findings obtain context principally from the open court statements of prosecution witnesses Villanueva, Flores and Salangsang, particularly on the circumstances prior to the subject incident. The Sandiganbayan pointed out that the Tamaraw jeepney would have indeed stopped if it had truly been flagged down as claimed by Yapyuco especially since – as it turned out after the search of the vehicle – they had no firearms with them, and hence, they had nothing to be scared of.⁵⁸ It observed that while Salangsang and Flores had been bona fide residents of Barangay Quebiawan, then it would be impossible for Pamintuan, barangay captain no less, not to have known them and the location of their houses which were not far from the scene of the incident; so much so that the presence of the victims and of the Tamaraw jeepney in Salangsang’s house that evening could not have possibly escaped his notice. In this regard, it noted that Pamintuan’s Sworn Statement dated April 11, 1988 did not sufficiently explain his suspicions as to the identities of the victims as well as his apparent certainty on the identity and whereabouts of the subject Tamaraw jeepney. ⁵⁹ It surmised how the defense, especially Yapyuco in his testimony, could have failed to explain why a large group of armed men – which allegedly included Cafgu members from neighboring barangays – were assembled at the house of Naron that night, and how petitioners were able to identify the Tamaraw jeepney to be the target vehicle. From this, it inferred that petitioners had already known that their suspect vehicle would be coming from the direction of Salangsang’s house – such knowledge is supposedly evident first, in the manner by which they advantageously positioned themselves at the scene to afford a direct line of fire at the target vehicle, and second, in the fact that the house of Naron, the neighboring houses and the electric post referred to by prosecution witnesses were deliberately not lit that night.⁶⁰

The Sandiganbayan also drew information from Flores’ sketch depicting the position of the Tamaraw jeepney and the assailants on the road, and concluded that judging by the bullet holes on the right side of the jeepney and by the declarations of Dr. Solis respecting the trajectory of the bullets that hit Villanueva and Licup, the assailants were inside the yard of Naron’s residence and the shots were fired at the jeepney while it was slowly moving past them. It also gave weight to the testimony and the report of Dabor telling that the service firearms of petitioners had been tested and found to be positive of gunpowder residue, therefore indicating that they had indeed been discharged.⁶¹

The Sandiganbayan summed up what it found to be overwhelming circumstantial evidence pointing to the culpability of petitioners: the nature and location of the bullet holes on the jeepney and the gunshot wounds on the victims, as well as the trajectory of the bullets that caused such damage and injuries; particularly, the number, location and trajectory of the bullets that hit the front passenger side of the jeepney; the strategic placement of the accused on the right side of the street and inside the front yard of Naron’s house; the deliberate shutting off of the lights in the nearby houses and the lamp post; and the positive ballistic findings on the firearms of petitioners. ⁶²

This evidentiary resumé, according to the Sandiganbayan, not only fortified petitioners’ admission that they did discharge their firearms, but also provided a predicate to its conclusion that petitioners conspired with one another to achieve a common purpose, design and objective to harm the unarmed and innocent victims. Thus, since there was no conclusive proof of who among the several accused had actually fired the gunshots that injured Villanueva and fatally wounded Licup, the Sandiganbayan imposed collective responsibility on all those who were shown to have discharged their firearms that night – petitioners herein.⁶³ Interestingly, it was speculated that the manner by which the accused collectively and individually acted prior or subsequent to or contemporaneously with the shooting indicated that they were either drunk or that some, if not all of them, had a grudge against the employees of San Miguel Corporation;⁶⁴ and that on the basis of the self-serving evidence adduced by the defense, there could possibly have been a massive cover-up of the incident by Philippine Constabulary and INP authorities in Pampanga as well as by the NAPOLCOM.⁶⁵ It likewise found very consequential the fact that the other accused had chosen not to take the witness stand; this, supposedly because it was incumbent upon them to individually explain their participation in the shooting in view of the weight of the prosecution evidence, their invocation of the justifying circumstance of lawful performance of official duty and the declaration of some of them in their affidavits to the effect that they had been deployed that evening in the front yard of Naron’s residence from which the volley of gunfire was discharged as admitted by Yapyuco himself.⁶⁶

As to the nature of the offenses committed, the Sandiganbayan found that the qualifying circumstance of treachery has not been proved because first, it was supposedly not shown how the aggression commenced and how the acts causing injury to Villanueva and fatally injuring Licup began and developed, and second, this circumstance must be supported by proof of a deliberate and conscious adoption of the mode of attack and cannot be drawn from mere suppositions or from circumstances immediately preceding the aggression. The same finding holds true for evident premeditation because between the time Yapyuco received the summons for assistance from Pamintuan through David and the time he and his men responded at the scene, there was found to be no sufficient time to allow for the materialization of all the elements of that circumstance.⁶⁷

Finally as to damages, Villanueva had testified that his injury required leave from work for 60 days which were all charged against his accumulated leave credits;⁶⁸ that he was earning ₱8,350.00 monthly;⁶⁹ and that he had spent ₱35,000.00 for the repair of his Tamaraw jeepney.⁷⁰ Also, Teodoro Licup had stated that his family had spent ₱18,000.00 for the funeral of his son, ₱28,000.00 during the wake, ₱11,000.00 for the funeral plot and ₱20,000.00 in attorney’s fees for the prosecution of these cases.⁷¹ He also submitted a certification from San Miguel Corporation reflecting the income of his deceased son.⁷² On these bases, the Sandiganbayan ordered petitioners, jointly and severally, to indemnify (a) Villanueva ₱51,700.00 as actual and compensatory damages and ₱120,000.00 as moral/exemplary damages, plus the proportionate costs of the action, and (b) the heirs of deceased Licup in the amount of ₱77,000.00 as actual damages and ₱600,000.00 as moral/exemplary damages, plus the proportionate costs of the action.

Petitioners’ motion for reconsideration was denied; hence, the present recourse.

In G.R. Nos. 120744-46, Yapyuco disputes the Sandiganbayan’s finding of conspiracy and labels the same to be conjectural. He points out that the court a quo has not clearly established that he had by positive acts intended to participate in any criminal object in common with the other accused, and that his participation in a supposed common criminal object has not been proved beyond reasonable doubt. He believes the finding is belied by Flores and Villanueva, who saw him at the scene only after the shooting incident when the wounded passengers were taken to the hospital on his jeepney.⁷³ He also points out the uncertainty in the Sandiganbayan’s declaration that the incident could not have been the product of a well-planned police operation, but rather was the result of either a hidden agenda concocted against the victims by the barangay officials involved or an amateurish attempt on their part to earn commendation. He theorizes that, if it were the latter alternative, then he could hardly be found guilty of homicide or frustrated homicide but rather of reckless imprudence resulting in homicide and frustrated homicide. ⁷⁴ He laments that, assuming arguendo that the injuries sustained by the victims were caused by his warning shots, he must nevertheless be exonerated because he responded to the scene of the incident as a bona fide member of the police force and, hence, his presence at the scene of the incident was in line with the fulfillment of his duty as he was in fact in the lawful performance thereof – a fact which has been affirmed by the NAPOLCOM en banc when it dismissed on appeal the complaint for gross misconduct against him, Cunanan and Puno.⁷⁵ He also invokes the concept of mistake of fact and attributes to Pamintuan the responsibility why he, as well as the other accused in these cases, had entertained the belief that the suspects were armed rebel elements.⁷⁶

In G.R. No. 122677, petitioners Manguerra, Mario Reyes and Andres Reyes claim that the Sandiganbayan has not proved their guilt beyond reasonable doubt, and the assailed decision was based on acts the evidence for which has been adduced at a separate trial but erroneously attributed to them. They explain that there were two sets of accused, in the case: one, the police officers comprised of Yapyuco, Cunanan and Puno and, two, the barangay officials and CHDFs comprised of David, Lugtu, Lacson, Yu and themselves who had waived the presentation of evidence. They question their conviction of the charges vis-a-vis the acquittal of David, Lugtu, Lacson and Yu who, like them, were barangay officials and had waived their right to present evidence in their behalf. They emphasize in this regard that all accused barangay officials and CHDFs did not participate in the presentation of the evidence by the accused police officers and, hence, the finding that they too had fired upon the Tamaraw jeepney is hardly based on an established fact.⁷⁷ Also, they believe that the findings of fact by the Sandiganbayan were based on inadmissible evidence, specifically on evidence rejected by the court itself and those presented in a separate trial. They label the assailed decision to be speculative, conjectural and suspicious and, hence, antithetical to the quantum of evidence required in a criminal prosecution.⁷⁸ Finally, they lament that the finding of conspiracy has no basis in evidence and that the prosecution has not even shown that they were with the other accused at the scene of the incident or that they were among those who fired at the victims, and neither were they identified as among the perpetrators of the crime.⁷⁹

In G.R. No. 122776, Cunanan and Puno likewise dispute the finding of conspiracy. They claim that judging by the uncertainty in the conclusion of the Sandiganbayan as to whether the incident was the result of a legitimate police operation or a careless plot designed by the accused to obtain commendation, conspiracy has not been proved beyond reasonable doubt. This, because they believe the prosecution has not, as far as both of them are concerned, shown that they had ever been part of such malicious design to commit an ambuscade as that alluded to in the assailed decision. They advance that as police officers, they merely followed orders from their commander, Yapyuco, but were not privy to the conversation among the latter, David and Pamintuan, moments before the shooting. They posit they could hardly be assumed to have had community of criminal design with the rest of the accused.⁸⁰ They affirm Yapyuco’s statement that they fired warning shots at the subject jeepney,⁸¹ but only after it had passed the place where they were posted and only after it failed to stop when flagged down as it then became apparent that it was going to speed away – as supposedly shown by bullet holes on the chassis and not on the rear portion of the jeepney. They also harp on the absence of proof of ill motives that would have otherwise urged them to commit the crimes charged, especially since none of the victims had been personally or even remotely known to either of them. That they were not intending to commit a crime is, they believe, shown by the fact that they did not directly aim their rifles at the passengers of the jeepney and that in fact, they immediately held their fire when Flores identified themselves as employees of San Miguel Corporation. They conceded that if killing was their intent, then they could have easily fired at the victims directly.⁸²

Commenting on these petitions, the Office of the Special Prosecutor stands by the finding of conspiracy as established by the fact that all accused, some of them armed, had assembled themselves and awaited the suspect vehicle as though having previously known that it would be coming from Salangsang’s residence. It posits that the manner by which the jeepney was fired upon demonstrates a community of purpose and design to commit the crimes charged.⁸³ It believes that criminal intent is discernible from the posts the accused had chosen to take on the road that would give them a direct line of fire at the target – as shown by the trajectories of the bullets that hit the Tamaraw jeepney.⁸⁴ This intent was supposedly realized when after the volley of gunfire, both Flores and Licup were wounded and the latter died as a supervening consequence.⁸⁵ It refutes the invocation of lawful performance of duty, mainly because there was no factual basis to support the belief of the accused that the occupants were members of the NPA, as indeed they have not shown that they had previously verified the whereabouts of the suspect vehicle. But while it recognizes that the accused had merely responded to the call of duty when summoned by Pamintuan through David, it is convinced that they had exceeded the performance thereof when they fired upon the Tamaraw jeepney occupied, as it turned out, by innocent individuals instead.⁸⁶

As to the contention of Mario Reyes, Andres Reyes and Manguerra that the evidence adduced before the Sandiganbayan as well the findings based thereon should not be binding on them, the OSP explains that said petitioners, together with Pamintuan, David, Lugtu, Lacson and Yu, had previously withdrawn their motion for separate trial and as directed later on submitted the case for decision as to them with the filing of their memorandum. It asserts there was no denial of due process to said petitioners in view of their agreement for the reproduction of the evidence on the motion for bail at the trial proper as well as by their manifestation to forego with the presentation of their own evidence. The right to present witnesses is waivable. Also, where an accused is jointly tried and testifies in court, the testimony binds the other accused, especially where the latter has failed to register his objection thereto.⁸⁷

The decision on review apparently is laden with conclusions and inferences that seem to rest on loose predicates. Yet we have pored over the records of the case and found that evidence nonetheless exists to support the penultimate finding of guilt beyond reasonable doubt.

I.

It is as much undisputed as it is borne by the records that petitioners were at the situs of the incident on the date and time alleged in the Informations. Yapyuco, in his testimony – which was adopted by Cunanan and Puno – as well as Manguerra, Mario Reyes and Andres Reyes in their affidavits which had been offered in evidence by the prosecution,⁸⁸ explained that their presence at the scene was in response to the information relayed by Pamintuan through David that armed rebel elements on board a vehicle described to be that occupied by the victims were reportedly spotted in Barangay Quebiawan. It is on the basis of this suspicion that petitioners now appeal to justification under Article 11 (5) of the Revised Penal Code and under the concept of mistake of fact. Petitioners admit that it was not by accident or mistake but by deliberation that the shooting transpired when it became apparent that the suspect vehicle was attempting to flee, yet contention arises as to whether or not there was intention to harm or even kill the passengers aboard, and who among them had discharged the bullets that caused the eventual death of Licup and injured Villanueva.

The first duty of the prosecution is not to present the crime but to identify the criminal.⁸⁹ To this end, the prosecution in these cases offered in evidence the joint counter-affidavit⁹⁰ of Andres Reyes and Manguerra; the counter-affidavit⁹¹ of Mario Reyes; the joint counter-affidavit⁹² of Cunanan and Puno; the counter-affidavit⁹³ of Yapyuco; and the joint counter-affidavit⁹⁴ of Yapyuco, Cunanan and Puno executed immediately after the incident in question. In brief, Cunanan and Puno stated therein that "[their] team was forced to fire at the said vehicle" when it accelerated after warning shots were fired in air and when it ignored Yapyuco’s signal for it to stop;⁹⁵ in their earlier affidavit they, together with Yapyuco, declared that they were "constrained x x x to fire directly to (sic) the said fleeing vehicle."⁹⁶ Yapyuco’s open court declaration, which was adopted by Cunanan and Puno, is that he twice discharged his firearm: first, to give warning to the subject jeepney after it allegedly failed to stop when flagged down and second, at the tires thereof when it came clear that it was trying to escape.⁹⁷ He suggested – substantiating the implication in his affidavit that it was "the whole team [which fired] at the fleeing vehicle" ⁹⁸ – that the bullets which hit the passenger side of the ill-fated jeepney could have come only from the CHDFs posted inside the yard of Naron where Manguerra, Mario Reyes and Andres Reyes admitted having taken post while awaiting the arrival of the suspect vehicle.⁹⁹

Mario Reyes and Andres Reyes, relying on their affidavits, declared that it was only Manguerra from their group who discharged a firearm but only into the air to give warning shots,¹⁰⁰ and that it was the "policemen [who] directly fired upon" the jeepney.¹⁰¹ Manguerra himself shared this statement.¹⁰² Yet these accounts do not sit well with the physical evidence found in the bullet holes on the passenger door of the jeepney which Dabor, in both her report and testimony, described to have come from bullets sprayed from perpendicular and oblique directions. This evidence in fact supports Yapyuco’s claim that he, Cunanan and Puno did fire directly at the jeepney after it had made a right turn and had already moved past them such that the line of fire to the passengers thereof would be at an oblique angle from behind. It also bolsters his claim that, almost simultaneously, gunshots came bursting after the jeepney has passed the spot where he, Cunanan and Puno had taken post, and when the vehicle was already right in front of the yard of Naron’s house sitting on the right side of the road after the curve and where Manguerra, Mario Reyes and Andres Reyes were positioned, such that the line of fire would be direct and perpendicular to it.¹⁰³

While Dabor’s ballistics findings are open to challenge for being inconclusive as to who among the accused actually discharged their firearms that night, her report pertaining to the examination of the ill-fated Tamaraw jeepney affirms the irreducible fact that the CHDFs posted within the yard of Naron’s house had indeed sprayed bullets at the said vehicle. Manguerra, Mario Reyes and Andres Reyes seek to insulate themselves by arguing that such finding cannot be applied to them as it is evidence adduced in a separate trial. But as the OSP noted, they may not evade the effect of their having withdrawn their motion for separate trial, their agreement to a joint trial of the cases, and the binding effect on them of the testimony of their co-accused, Yapyuco.¹⁰⁴

Indeed, the extrajudicial confession or admission of one accused is admissible only against said accused, but is inadmissible against the other accused. But if the declarant or admitter repeats in court his extrajudicial admission, as Yapyuco did in this case, during the trial and the other accused is accorded the opportunity to cross-examine the admitter, the admission is admissible against both accused because then, it is transposed into a judicial admission.¹⁰⁵ It is thus perplexing why, despite the extrajudicial statements of Cunanan, Puno and Yapyuco, as well as the latter’s testimony implicating them in the incident, they still had chosen to waive their right to present evidence when, in fact, they could have shown detailed proof of their participation or non-participation in the offenses charged. We, therefore, reject their claim that they had been denied due process in this regard, as they opted not to testify and be cross-examined by the prosecution as to the truthfulness in their affidavits and, accordingly, disprove the inculpatory admissions of their co-accused.

II.

The availability of the justifying circumstance of fulfillment of duty or lawful exercise of a right or office under Article 11 (5) of the Revised Penal Code rests on proof that (a) the accused acted in the performance of his duty or in the lawful exercise of his right or office, and (b) the injury caused or the offense committed is the necessary consequence of the due performance of such duty or the lawful exercise of such right or office.¹⁰⁶ The justification is based on the complete absence of intent and negligence on the part of the accused, inasmuch as guilt of a felony connotes that it was committed with criminal intent or with fault or negligence.¹⁰⁷ Where invoked, this ground for non-liability amounts to an acknowledgment that the accused has caused the injury or has committed the offense charged for which, however, he may not be penalized because the resulting injury or offense is a necessary consequence of the due performance of his duty or the lawful exercise of his right or office. Thus, it must be shown that the acts of the accused relative to the crime charged were indeed lawfully or duly performed; the burden necessarily shifts on him to prove such hypothesis.

We find that the requisites for justification under Article 11 (5) of the Revised Penal Code do not obtain in this case.

The undisputed presence of all the accused at the situs of the incident is a legitimate law enforcement operation. No objection is strong enough to defeat the claim that all of them – who were either police and barangay officers or CHDF members tasked with the maintenance of peace and order – were bound to, as they did, respond to information of a suspected rebel infiltration in the locality. Theirs, therefore, is the specific duty to identify the occupants of their suspect vehicle and search for firearms inside it to validate the information they had received; they may even effect a bloodless arrest should they find cause to believe that their suspects had just committed, were committing or were bound to commit a crime. While, it may certainly be argued that rebellion is a continuing offense, it is interesting that nothing in the evidence suggests that the accused were acting under an official order to open fire at or kill the suspects under any and all circumstances. Even more telling is the absence of reference to the victims having launched such aggression as would threaten the safety of any one of the accused, or having exhibited such defiance of authority that would have instigated the accused, particularly those armed, to embark on a violent attack with their firearms in self-defense. In fact, no material evidence was presented at the trial to show that the accused were placed in real mortal danger in the presence of the victims, except maybe their bare suspicion that the suspects were armed and were probably prepared to conduct hostilities.

But whether or not the passengers of the subject jeepney were NPA members and whether or not they were at the time armed, are immaterial in the present inquiry inasmuch as they do not stand as accused in the prosecution at hand. Besides, even assuming that they were as the accused believed them to be, the actuations of these responding law enforcers must inevitably be ranged against reasonable expectations that arise in the legitimate course of performance of policing duties. The rules of engagement, of which every law enforcer must be thoroughly knowledgeable and for which he must always exercise the highest caution, do not require that he should immediately draw or fire his weapon if the person to be accosted does not heed his call. Pursuit without danger should be his next move, and not vengeance for personal feelings or a damaged pride. Police work requires nothing more than the lawful apprehension of suspects, since the completion of the process pertains to other government officers or agencies.¹⁰⁸

A law enforcer 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.¹⁰⁹ United States v. Campo¹¹⁰ has laid down the rule that in the performance of his duty, an agent of the authorities is not authorized to use force, except in an extreme case when he is attacked or is the subject of resistance, and finds no other means to comply with his duty or cause himself to be respected and obeyed by the offender. In case injury or death results from the exercise of such force, the same could be justified in inflicting the injury or causing the death of the offender if the officer had used necessary force.¹¹¹ He is, however, 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 effected otherwise.¹¹² People v. Ulep¹¹³ teaches that –

The right to kill an offender is not absolute, and may be used only as a last resort, and under circumstances indicating that the offender cannot otherwise be taken without bloodshed. The law does not clothe police officers with authority to arbitrarily judge the necessity to kill. It may be true that police officers sometimes find themselves in a dilemma when pressured by a situation where an immediate and decisive, but legal, action is needed. However, it must be stressed that the judgment and discretion of police officers in the performance of their duties must be exercised neither capriciously nor oppressively, but within reasonable limits. In the absence of a clear and legal provision to the contrary, they must act in conformity with the dictates of a sound discretion, and within the spirit and purpose of the law. We cannot countenance trigger-happy law enforcement officers who indiscriminately employ force and violence upon the persons they are apprehending. They must always bear in mind that although they are dealing with criminal elements against whom society must be protected, these criminals are also human beings with human rights.¹¹⁴

Thus, in People v. Tabag,¹¹⁵ where members of the Davao CHDF had killed four members of a family in their home because of suspicions that they were NPA members, and the accused sought exoneration by invoking among others the justifying circumstance in Article 11 (5) of the Revised Penal Code, the Court in dismissing the claim and holding them liable for murder said, thus:

In no way can Sarenas claim the privileges under paragraphs 5 and 6, Article 11 of the Revised Penal Code, for the massacre of the Magdasals can by no means be considered as done in the fulfillment of a duty or in the lawful exercise of an office or in obedience to an order issued by a superior for some lawful purpose. Other than "suspicion," there is no evidence that Welbino Magdasal, Sr., his wife Wendelyn, and their children were members of the NPA. And even if they were members of the NPA, they were entitled to due process of law. On that fateful night, they were peacefully resting in their humble home expecting for the dawn of another uncertain day. Clearly, therefore, nothing justified the sudden and unprovoked attack, at nighttime, on the Magdasals. The massacre was nothing but a merciless vigilante-style execution.¹¹⁶

Petitioners rationalize their election to aim their fire directly at the jeepney by claiming that it failed to heed the first round of warning shots as well as the signal for it to stop and instead tried to flee. While it is possible that the jeepney had been flagged down but because it was pacing the dark road with its headlights dimmed missed petitioners’ signal to stop, and compound to it the admitted fact that the passengers thereof were drunk from the party they had just been to,¹¹⁷ still, we find incomprehensible petitioners’ quick resolve to use their firearms when in fact there was at least one other vehicle at the scene – the Sarao jeepney owned by Yapyuco – which they could actually have used to pursue their suspects whom they supposedly perceived to be in flight.

Lawlessness is to be dealt with according to the law. Only absolute necessity justifies the use of force, and it is incumbent on herein petitioners to prove such necessity. We find, however, that petitioners failed in that respect. Although the employment of powerful firearms does not necessarily connote unnecessary force, petitioners in this case do not seem to have been confronted with the rational necessity to open fire at the moving jeepney occupied by the victims. No explanation is offered why they, in that instant, were inclined for a violent attack at their suspects except perhaps their over-anxiety or impatience or simply their careless disposition to take no chances. Clearly, they exceeded the fulfillment of police duties the moment they actualized such resolve, thereby inflicting Licup with a mortal bullet wound, causing injury to Villanueva and exposing the rest of the passengers of the jeepney to grave danger to life and limb – all of which could not have been the necessary consequence of the fulfillment of their duties.

III.

At this juncture, we find that the invocation of the concept of mistake of fact faces certain failure. In the context of criminal law, a "mistake of fact" is a misapprehension of a fact which, if true, would have justified the act or omission which is the subject of the prosecution.¹¹⁸ Generally, a reasonable mistake of fact is a defense to a charge of crime where it negates the intent component of the crime.¹¹⁹ It may be a defense even if the offense charged requires proof of only general intent.¹²⁰ The inquiry is into the mistaken belief of the defendant,¹²¹ and it does not look at all to the belief or state of mind of any other person.¹²² A proper invocation of this defense requires (a) that the mistake be honest and reasonable;¹²³ (b) that it be a matter of fact;¹²⁴ and (c) that it negate the culpability required to commit the crime¹²⁵ or the existence of the mental state which the statute prescribes with respect to an element of the offense.¹²⁶

The leading authority in mistake of fact as ground for non-liability is found in United States v. Ah Chong,¹²⁷ but in that setting, the principle was treated as a function of self-defense where the physical circumstances of the case had mentally manifested to the accused an aggression which it was his instinct to repel. There, the accused, fearful of bad elements, was woken by the sound of his bedroom door being broken open and, receiving no response from the intruder after having demanded identification, believed that a robber had broken in. He threatened to kill the intruder but at that moment he was struck by a chair which he had placed against the door and, perceiving that he was under attack, seized a knife and fatally stabbed the intruder who turned out to be his roommate. Charged with homicide, he was acquitted because of his honest mistake of fact. Finding that the accused had no evil intent to commit the charge, the Court explained:

x x x The maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient excuse").

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability, provided always there is no fault or negligence on his part and as laid down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear to him." x x x

If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts which will justify a killing — or, in terms more nicely in accord with the principles on which the rule is founded, if without fault or carelessness he does not believe them — he is legally guiltless of homicide; though he mistook the facts, and so the life of an innocent person is unfortunately extinguished. In other words, and with reference to the right of self-defense and the not quite harmonious authorities, it is the doctrine of reason, and sufficiently sustained in adjudication, that notwithstanding some decisions apparently adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as they appear to him. If, without fault or carelessness, he is misled concerning them, and defends himself correctly according to what he thus supposes the facts to be, the law will not punish him though they are in truth otherwise, and he has really no occasion for the extreme measure. x x x ¹²⁸

Besides, as held in People v. Oanis¹²⁹ and Baxinela v. People,¹³⁰ the justification of an act, which is otherwise criminal on the basis of a mistake of fact, must preclude negligence or bad faith on the part of the accused.¹³¹ Thus, Ah Chong further explained that –

The question then squarely presents itself, whether in this jurisdiction one can be held criminally responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt from criminal liability if the facts were as he supposed them to be, but which would constitute the crime of homicide or assassination if the actor had known the true state of the facts at the time when he committed the act. To this question we think there can be but one answer, and we hold that under such circumstances there is no criminal liability, provided always that the alleged ignorance or mistake of fact was not due to negligence or bad faith.¹³²

IV.

This brings us to whether the guilt of petitioners for homicide and frustrated homicide has been established beyond cavil of doubt. The precept in all criminal cases is that the prosecution is bound by the invariable requisite of establishing the guilt of the accused beyond reasonable doubt. The prosecution must rely on the strength of its own evidence and not on the evidence of the accused. The weakness of the defense of the accused does not relieve the prosecution of its responsibility of proving guilt beyond reasonable doubt.¹³³ By reasonable doubt is meant that doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt.¹³⁴ The overriding consideration is not whether the court doubts the innocence of the accused, but whether it entertains reasonable doubt as to his guilt.¹³⁵

The prosecution is burdened to prove corpus delicti beyond reasonable doubt either by direct evidence or by circumstantial or presumptive evidence.¹³⁶ Corpus delicti consists of two things: first, the criminal act and second, defendant's agency in the commission of the act.¹³⁷ In homicide (by dolo) as well as in murder cases, the prosecution must prove: (a) the death of the party alleged to be dead; (b) that the death was produced by the criminal act of some other than the deceased and was not the result of accident, natural cause or suicide; and (c) that defendant committed the criminal act or was in some way criminally responsible for the act which produced the death. In other words, proof of homicide or murder requires incontrovertible evidence, direct or circumstantial, that the victim was deliberately killed (with malice), that is, with intent to kill. Such evidence may consist in the use of weapons by the malefactors, the nature, location and number of wounds sustained by the victim and the words uttered by the malefactors before, at the time or immediately after the killing of the victim. If the victim dies because of a deliberate act of the malefactors, intent to kill is conclusively presumed.¹³⁸ In such case, even if there is no intent to kill, the crime is homicide because with respect to crimes of personal violence, the penal law looks particularly to the material results following the unlawful act and holds the aggressor responsible for all the consequences thereof. ¹³⁹ Evidence of intent to kill is crucial only to a finding of frustrated and attempted homicide, as the same is an essential element of these offenses, and thus must be proved with the same degree of certainty as that required of the other elements of said offenses.¹⁴⁰

The records disclose no ill motives attributed to petitioners by the prosecution. It is interesting that, in negating the allegation that they had by their acts intended to kill the occupants of the jeepney, petitioners turn to their co-accused Pamintuan, whose picture depicted in the defense evidence is certainly an ugly one: petitioners’ affidavits as well as Yapyuco’s testimony are replete with suggestions that it was Pamintuan alone who harbored the motive to ambush the suspects as it was he who their (petitioners’) minds that which they later on conceded to be a mistaken belief as to the identity of the suspects. Cinco, for one, stated in court that Pamintuan had once reported to him that Flores, a relative of his (Pamintuan), was frequently meeting with NPA members and that the San Miguel Corporation plant where the victims were employed was being penetrated by NPA members. He also affirmed Yapyuco’s claim that there had been a number of ambuscades launched against members of law enforcement in Quebiawan and in the neighboring areas supposedly by NPA members at around the time of the incident. But as the Sandiganbayan pointed out, it is unfortunate that Pamintuan had died during the pendency of these cases even before his opportunity to testify in court emerged.¹⁴¹

Yet whether such claims suffice to demonstrate ill motives evades relevance and materiality. Motive is generally held to be immaterial inasmuch as it is not an element of a crime. It gains significance when the commission of a crime is established by evidence purely circumstantial or otherwise inconclusive.¹⁴² The question of motive is important in cases where there is doubt as to whether the defendant is or is not the person who committed the act, but when there is no doubt that the defendant was the one who caused the death of the deceased, it is not so important to know the reason for the deed.¹⁴³

In the instant case, petitioners, without abandoning their claim that they did not intend to kill anyone of the victims, admit having willfully discharged their service firearms; and the manner by which the bullets concentrated on the passenger side of the jeepney permits no other conclusion than that the shots were intended for the persons lying along the line of fire. We do not doubt that instances abound where the discharge of a firearm at another is not in itself sufficient to sustain a finding of intention to kill, and that there are instances where the attendant circumstances conclusively establish that the discharge was not in fact animated by intent to kill. Yet the rule is that in ascertaining the intention with which a specific act is committed, it is always proper and necessary to look not merely to the act itself but to all the attendant circumstances so far as they develop in the evidence.¹⁴⁴

The firearms used by petitioners were either M16 rifle, .30 caliber garand rifle and .30 caliber carbine.¹⁴⁵ While the use of these weapons does not always amount to unnecessary force, they are nevertheless inherently lethal in nature. At the level the bullets were fired and hit the jeepney, it is not difficult to imagine the possibility of the passengers thereof being hit and even killed. It must be stressed that the subject jeepney was fired upon while it was pacing the road and at that moment, it is not as much too difficult to aim and target the tires thereof as it is to imagine the peril to which its passengers would be exposed even assuming that the gunfire was aimed at the tires – especially considering that petitioners do not appear to be mere rookie law enforcers or unskilled neophytes in encounters with lawless elements in the streets.

Thus, judging by the location of the bullet holes on the subject jeepney and the firearms employed, the likelihood of the passenger next to the driver – and in fact even the driver himself – of being hit and injured or even killed is great to say the least, certain to be precise. This, we find to be consistent with the uniform claim of petitioners that the impulse to fire directly at the jeepney came when it occurred to them that it was proceeding to evade their authority. And in instances like this, their natural and logical impulse was to debilitate the vehicle by firing upon the tires thereof, or to debilitate the driver and hence put the vehicle to a halt. The evidence we found on the jeepney suggests that petitioners’ actuations leaned towards the latter.

This demonstrates the clear intent of petitioners to bring forth death on Licup who was seated on the passenger side and to Villanueva who was occupying the wheel, together with all the consequences arising from their deed. The circumstances of the shooting breed no other inference than that the firing was deliberate and not attributable to sheer accident or mere lack of skill. Thus, Cupps v. State¹⁴⁶ tells that:

This rule that every person is presumed to contemplate the ordinary and natural consequences of his own acts, is applied even in capital cases. Because men generally act deliberately and by the determination of their own will, and not from the impulse of blind passion, the law presumes that every man always thus acts, until the contrary appears. Therefore, when one man is found to have killed another, if the circumstances of the homicide do not of themselves show that it was not intended, but was accidental, it is presumed that the death of the deceased was designed by the slayer; and the burden of proof is on him to show that it was otherwise.

V.

Verily, the shooting incident subject of these petitions was actualized with the deliberate intent of killing Licup and Villanueva, hence we dismiss Yapyuco’s alternative claim in G.R. No. 120744 that he and his co-petitioners must be found guilty merely of reckless imprudence resulting in homicide and frustrated homicide. Here is why:

First, the crimes committed in these cases are not merely criminal negligence, the killing being intentional and not accidental. In criminal negligence, the injury caused to another should be unintentional, it being the incident of another act performed without malice.¹⁴⁷ People v. Guillen¹⁴⁸ and People v. Nanquil ¹⁴⁹ declare that a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence. And in People v. Castillo,¹⁵⁰ we held that that there can be no frustrated homicide through reckless negligence inasmuch as reckless negligence implies lack of intent to kill, and without intent to kill the crime of frustrated homicide cannot exist.

Second, that petitioners by their acts exhibited conspiracy, as correctly found by the Sandiganbayan, likewise militates against their claim of reckless imprudence.

Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons agree to commit a felony and decide to commit it. Conspiracy need not be proven by direct evidence. It may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that they had acted with a common purpose and design. Conspiracy may be implied if it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent of each other were, in fact, connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment. Conspiracy once found, continues until the object of it has been accomplished and unless abandoned or broken up. To hold an accused guilty as a co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the complicity. There must be intentional participation in the transaction with a view to the furtherance of the common design and purpose.¹⁵¹

Conspiracy to exist does not require an agreement for an appreciable period prior to the occurrence.1a\^/phi1 From the legal viewpoint, conspiracy exists if, at the time of the commission of the offense, the accused had the same purpose and were united in its execution.¹⁵² The instant case requires no proof of any previous agreement among petitioners that they were really bent on a violent attack upon their suspects. While it is far-fetched to conclude that conspiracy arose from the moment petitioners, or all of the accused for that matter, had converged and strategically posted themselves at the place appointed by Pamintuan, we nevertheless find that petitioners had been ignited by the common impulse not to let their suspect jeepney flee and evade their authority when it suddenly occurred to them that the vehicle was attempting to escape as it supposedly accelerated despite the signal for it to stop and submit to them. As aforesaid, at that point, petitioners were confronted with the convenient yet irrational option to take no chances by preventing the jeepney’s supposed escape even if it meant killing the driver thereof. It appears that such was their common purpose. And by their concerted action of almost simultaneously opening fire at the jeepney from the posts they had deliberately taken around the immediate environment of the suspects, conveniently affording an opportunity to target the driver, they did achieve their object as shown by the concentration of bullet entries on the passenger side of the jeepney at angular and perpendicular trajectories. Indeed, there is no definitive proof that tells which of all the accused had discharged their weapons that night and which directly caused the injuries sustained by Villanueva and fatally wounded Licup, yet we adopt the Sandiganbayan’s conclusion that since only herein petitioners were shown to have been in possession of their service firearms that night and had fired the same, they should be held collectively responsible for the consequences of the subject law enforcement operation which had gone terribly wrong.¹⁵³

VI.

The Sandiganbayan correctly found that petitioners are guilty as co-principals in the crimes of homicide and attempted homicide only, respectively for the death of Licup and for the non-fatal injuries sustained by Villanueva, and that they deserve an acquittal together with the other accused, of the charge of attempted murder with respect to the unharmed victims.¹⁵⁴ The allegation of evident premeditation has not been proved beyond reasonable doubt because the evidence is consistent with the fact that the urge to kill had materialized in the minds of petitioners as instantaneously as they perceived their suspects to be attempting flight and evading arrest. The same is true with treachery, inasmuch as there is no clear and indubitable proof that the mode of attack was consciously and deliberately adopted by petitioners.

Homicide, under Article 249 of the Revised Penal Code, is punished by reclusion temporal whereas an attempt thereof, under Article 250 in relation to Article 51, warrants a penalty lower by two degrees than that prescribed for principals in a consummated homicide. Petitioners in these cases are entitled to the ordinary mitigating circumstance of voluntary surrender, and there being no aggravating circumstance proved and applying the Indeterminate Sentence Law, the Sandiganbayan has properly fixed in Criminal Case No. 16612 the range of the penalty from six (6) years and one (1) day, but should have denominated the same as prision mayor, not prision correccional, to twelve (12) years and one (1) day of reclusion temporal.

However, upon the finding that petitioners in Criminal Case No. 16614 had committed attempted homicide, a modification of the penalty is in order. The penalty of attempted homicide is two (2) degrees lower to that of a consummated homicide, which is prision correccional. Taking into account the mitigating circumstance of voluntary surrender, the maximum of the indeterminate sentence to be meted out on petitioners is within the minimum period of prision correccional, which is six (6) months and one (1) day to two (2) years and four (4) months of prision correccional, whereas the minimum of the sentence, which under the Indeterminate Sentence Law must be within the range of the penalty next lower to that prescribed for the offense, which is one (1) month and one (1) day to six (6) months of arresto mayor.

We likewise modify the award of damages in these cases, in accordance with prevailing jurisprudence, and order herein petitioners, jointly and severally, to indemnify the heirs of Leodevince Licup in the amount of ₱77,000.00 as actual damages and ₱50,000.00 in moral damages. With respect to Noel Villanueva, petitioners are likewise bound to pay, jointly and severally, the amount of ₱51,700.00 as actual and compensatory damages and ₱20,000.00 as moral damages. The award of exemplary damages should be deleted, there being no aggravating circumstance that attended the commission of the crimes.

WHEREFORE, the instant petitions are DENIED. The joint decision of the Sandiganbayan in Criminal Case Nos. 16612, 16613 and 16614, dated June 27, 1995, are hereby AFFIRMED with the following MODIFICATIONS:

(a) In Criminal Case No. 16612, petitioners are sentenced to suffer the indeterminate penalty of six (6) years and one (1) day of prision mayor, as the minimum, to twelve (12) years and one (1) day of reclusion temporal, as the maximum; in Criminal Case No. 16614, the indeterminate sentence is hereby modified to Two (2) years and four (4) months of prision correccional, as the maximum, and Six (6) months of arresto mayor, as the minimum.

(b) Petitioners are DIRECTED to indemnify, jointly and severally, the heirs of Leodevince Licup in the amount of ₱77,000.00 as actual damages, ₱50,000.00 in moral damages, as well as Noel Villanueva, in the amount of ₱51,700.00 as actual and compensatory damages, and ₱20,000.00 as moral damages.

SO ORDERED.

¹²³ Id. at 233, citing U.S. v. Buchannan, 115 F.3d 445; People v. Reed, 53 Cal. App. 4th 389. Generally, ignorance or mistake of fact constitutes a defense to a criminal charge only if it is not superinduced by fault or negligence of party doing the charged act. (Crawford v. State, 267 Ga. 543, 480 S.E.2d 573). For a mistake of fact to negate a mental state required to establish a criminal offense, the mistake must be reasonable, and the act, to be justified, must be taken under a bona fide mistaken belief (Cheser v. Com., 904 S.W.2d 239).

¹²⁴ Id. at 233, citing Potter v. State, 684 N.E.2d 1127. If a mistake arises not from ignorance of law, but from ignorance of an independently determined legal status or condition that is one of the operative facts of a crime, such a mistake is one of fact (U.S. v. Lopez-Lima, 738 F.Supp. 1404).

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

EN BANC

G.R. No. 135306             January 28, 2003

MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA and AGUSTINO G. BINEGAS, JR., petitioners,
vs.
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., ABDULRAHMAN R.T. LINZAG, IBRAHIM F.P. ARCILLA, ABDUL RASHID DE GUZMAN, AL-FARED DA SILVA and IBRAHIM B.A. JUNIO, respondents.

BELLOSILLO, J.:

I may utterly detest what you write, but I shall fight to the death to make it possible for you to continue writing it. —

Voltaire

VOLTAIRE'S PONTIFICAL VERSE bestirs once again the basic liberties to free speech and free press — liberties that belong as well, if not more, to those who question, who do not conform, who differ. For the ultimate good which we all strive to achieve for ourselves and our posterity can better be reached by a free exchange of ideas, where the best test of truth is the power of the thought to get itself accepted in the competition of the free market — not just the ideas we desire, but including those thoughts we despise.¹

ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., a local federation of more than seventy (70) Muslim religious organizations, and individual Muslims ABDULRAHMAN R.T. LINZAG, IBRAHIM F.P. ARCILLA, ABDUL RASHID DE GUZMAN, AL-FARED DA SILVA and IBRAHIM B.A. JUNIO, filed in the Regional Trial Court of Manila a complaint for damages in their own behalf and as a class suit in behalf of the Muslim members nationwide against MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA and AGUSTINO G. BINEGAS, JR., arising from an article published in the 1 August 1992 issue of Bulgar, a daily tabloid. The article reads:

"ALAM BA NINYO?

Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi kinakain ng mga Muslim?

Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang kainin kahit na sila pa ay magutom at mawalan ng ulam sa tuwing sila ay kakain. Ginagawa nila itong Diyos at sinasamba pa nila ito sa tuwing araw ng kanilang pangingilin lalung-lalo na sa araw na tinatawag nilang 'Ramadan'."

The complaint alleged that the libelous statement was insulting and damaging to the Muslims; that these words alluding to the pig as the God of the Muslims was not only published out of sheer ignorance but with intent to hurt the feelings, cast insult and disparage the Muslims and Islam, as a religion in this country, in violation of law, public policy, good morals and human relations; that on account of these libelous words Bulgar insulted not only the Muslims in the Philippines but the entire Muslim world, especially every Muslim individual in non-Muslim countries.

MVRS PUBLICATIONS, INC., and AGUSTINO G. BINEGAS, JR., in their defense, contended that the article did not mention respondents as the object of the article and therefore were not entitled to damages; and, that the article was merely an expression of belief or opinion and was published without malice nor intention to cause damage, prejudice or injury to Muslims.²

On 30 June 1995 the trial court dismissed the complaint holding that the plaintiffs failed to establish their cause of action since the persons allegedly defamed by the article were not specifically identified —

It must be noted that the persons allegedly defamed, the herein plaintiffs, were not identified with specificity. The subject article was directed at the Muslims without mentioning or identifying the herein plaintiffs x x x. It is thus apparent that the alleged libelous article refers to the larger collectivity of Muslims for which the readers of the libel could not readily identify the personalities of the persons defamed. Hence, it is difficult for an individual Muslim member to prove that the defamatory remarks apply to him. The evidence presented in this case failed to convince this court that, indeed, the defamatory remarks really applied to the herein plaintiffs.³

On 27 August 1998 the Court of Appeals reversed the decision of the trial court. It opined that it was "clear from the disputed article that the defamation was directed to all adherents of the Islamic faith. It stated that pigs were sacred and idolized as god by members of the Muslim religion. This libelous imputation undeniably applied to the plaintiff-appellants who are Muslims sharing the same religious beliefs." It added that the suit for damages was a "class suit" and that ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC.'s religious status as a Muslim umbrella organization gave it the requisite personality to sue and protect the interests of all Muslims.⁴

Hence, the instant petition for review assailing the findings of the appellate court (a) on the existence of the elements of libel, (b) the right of respondents to institute the class suit, and, (c) the liability of petitioners for moral damages, exemplary damages, attorney's fees and costs of suit.

Defamation, which includes libel and slander, means the offense of injuring a person's character, fame or reputation through false and malicious statements.⁵ It is that which tends to injure reputation or to diminish the esteem, respect, good will or confidence in the plaintiff or to excite derogatory feelings or opinions about the plaintiff.⁶ It is the publication of anything which is injurious to the good name or reputation of another or tends to bring him into disrepute.⁷ Defamation is an invasion of a relational interest since it involves the opinion which others in the community may have, or tend to have, of the plaintiff.⁸

It must be stressed that words which are merely insulting are not actionable as libel or slander per se, and mere words of general abuse however opprobrious, ill-natured, or vexatious, whether written or spoken, do not constitute a basis for an action for defamation in the absence of an allegation for special damages.⁹ The fact that the language is offensive to the plaintiff does not make it actionable by itself.¹⁰

Declarations made about a large class of people cannot be interpreted to advert to an identified or identifiable individual. Absent circumstances specifically pointing or alluding to a particular member of a class, no member of such class has a right of action¹¹ without at all impairing the equally demanding right of free speech and expression, as well as of the press, under the Bill of Rights.¹² Thus, in Newsweek, Inc. v. Intermediate Appellate Court,¹³ we dismissed a complaint for libel against Newsweek, Inc., on the ground that private respondents failed to state a cause of action since they made no allegation in the complaint that anything contained in the article complained of specifically referred to any of them. Private respondents, incorporated associations of sugarcane planters in Negros Occidental claiming to have 8,500 members and several individual members, filed a class action suit for damages in behalf of all sugarcane planters in Negros Occidental. The complaint filed in the Court of First Instance of Bacolod City alleged that Newsweek, Inc., committed libel against them by the publication of the article "Island of Fear" in its weekly newsmagazine allegedly depicting Negros Province as a place dominated by wealthy landowners and sugar planters who not only exploited the impoverished and underpaid sugarcane workers but also brutalized and killed them with impunity. Private respondents alleged that the article showed a deliberate and malicious use of falsehood, slanted presentation and/or misrepresentation of facts intended to put the sugarcane planters in a bad light, expose them to public ridicule, discredit and humiliation in the Philippines and abroad, and make them the objects of hatred, contempt and hostility of their agricultural workers and of the public in general. We ratiocinated —

x x x where the defamation is alleged to have been directed at a group or class, it is essential that the statement must be so sweeping or all-embracing as to apply to every individual in that group or class, or sufficiently specific so that each individual in the class or group can prove that the defamatory statement specifically pointed to him, so that he can bring the action separately, if need be x x x x The case at bar is not a class suit. It is not a case where one or more may sue for the benefit of all, or where the representation of class interest affected by the judgment or decree is indispensable to make each member of the class an actual party. We have here a case where each of the plaintiffs has a separate and distinct reputation in the community. They do not have a common or general interest in the subject matter of the controversy.

In the present case, there was no fairly identifiable person who was allegedly injured by the Bulgar article. Since the persons allegedly defamed could not be identifiable, private respondents have no individual causes of action; hence, they cannot sue for a class allegedly disparaged. Private respondents must have a cause of action in common with the class to which they belong to in order for the case to prosper.

An individual Muslim has a reputation that is personal, separate and distinct in the community. Each Muslim, as part of the larger Muslim community in the Philippines of over five (5) million people, belongs to a different trade and profession; each has a varying interest and a divergent political and religious view — some may be conservative, others liberal. A Muslim may find the article dishonorable, even blasphemous; others may find it as an opportunity to strengthen their faith and educate the non-believers and the "infidels." There is no injury to the reputation of the individual Muslims who constitute this community that can give rise to an action for group libel. Each reputation is personal in character to every person. Together, the Muslims do not have a single common reputation that will give them a common or general interest in the subject matter of the controversy.

In Arcand v. The Evening Call Publishing Company,¹⁴ the United States Court of Appeals held that one guiding principle of group libel is that defamation of a large group does not give rise to a cause of action on the part of an individual unless it can be shown that he is the target of the defamatory matter.

The rule on libel has been restrictive. In an American case,¹⁵ a person had allegedly committed libel against all persons of the Jewish religion. The Court held that there could be no libel against an extensive community in common law. In an English case, where libel consisted of allegations of immorality in a Catholic nunnery, the Court considered that if the libel were on the whole Roman Catholic Church generally, then the defendant must be absolved.¹⁶ With regard to the largest sectors in society, including religious groups, it may be generally concluded that no criminal action at the behest of the state, or civil action on behalf of the individual, will lie.

In another case, the plaintiffs claimed that all Muslims, numbering more than 600 million, were defamed by the airing of a national television broadcast of a film depicting the public execution of a Saudi Arabian princess accused of adultery, and alleging that such film was "insulting and defamatory" to the Islamic religion.¹⁷ The United States District Court of the Northern District of California concluded that the plaintiffs' prayer for $20 Billion in damages arising from "an international conspiracy to insult, ridicule, discredit and abuse followers of Islam throughout the world, Arabs and the Kingdom of Saudi Arabia" bordered on the "frivolous," ruling that the plaintiffs had failed to demonstrate an actionable claim for defamation. The California Court stressed that the aim of the law on defamation was to protect individuals; a group may be sufficiently large that a statement concerning it could not defame individual group members.¹⁸

Philip Wittenberg, in his book "Dangerous Words: A Guide to the Law of Libel,"¹⁹ discusses the inappropriateness of any action for tortious libel involving large groups, and provides a succinct illustration:

There are groupings which may be finite enough so that a description of the body is a description of the members. Here the problem is merely one of evaluation. Is the description of the member implicit in the description of the body, or is there a possibility that a description of the body may consist of a variety of persons, those included within the charge, and those excluded from it?

A general charge that the lawyers in the city are shysters would obviously not be a charge that all of the lawyers were shysters. A charge that the lawyers in a local point in a great city, such as Times Square in New York City, were shysters would obviously not include all of the lawyers who practiced in that district; but a statement that all of the lawyers who practiced in a particular building in that district were shysters would be a specific charge, so that any lawyer having an office within that building could sue.

If the group is a very large one, then the alleged libelous statement is considered to have no application to anyone in particular, since one might as well defame all mankind. Not only does the group as such have no action; the plaintiff does not establish any personal reference to himself.²⁰ At present, modern societal groups are both numerous and complex. The same principle follows with these groups: as the size of these groups increases, the chances for members of such groups to recover damages on tortious libel become elusive. This principle is said to embrace two (2) important public policies: first, where the group referred to is large, the courts presume that no reasonable reader would take the statements as so literally applying to each individual member; and second, the limitation on liability would satisfactorily safeguard freedom of speech and expression, as well as of the press, effecting a sound compromise between the conflicting fundamental interests involved in libel cases.²¹

In the instant case, the Muslim community is too vast as to readily ascertain who among the Muslims were particularly defamed. The size of the group renders the reference as indeterminate and generic as a similar attack on Catholics, Protestants, Buddhists or Mormons would do. The word "Muslim" is descriptive of those who are believers of Islam, a religion divided into varying sects, such as the Sunnites, the Shiites, the Kharijites, the Sufis and others based upon political and theological distinctions. "Muslim" is a name which describes only a general segment of the Philippine population, comprising a heterogeneous body whose construction is not so well defined as to render it impossible for any representative identification.

The Christian religion in the Philippines is likewise divided into different sects: Catholic, Baptist, Episcopalian, Presbyterian, Lutheran, and other groups the essence of which may lie in an inspired charlatan, whose temple may be a corner house in the fringes of the countryside. As with the Christian religion, so it is with other religions that represent the nation's culturally diverse people and minister to each one's spiritual needs. The Muslim population may be divided into smaller groups with varying agenda, from the prayerful conservative to the passionately radical. These divisions in the Muslim population may still be too large and ambiguous to provide a reasonable inference to any personality who can bring a case in an action for libel.

The foregoing are in essence the same view scholarly expressed by Mr. Justice Reynato S. Puno in the course of the deliberations in this case. We extensively reproduce hereunder his comprehensive and penetrating discussion on group libel —

Defamation is made up of the twin torts of libel and slander — the one being, in general, written, while the other in general is oral. In either form, defamation is an invasion of the interest in reputation and good name. This is a "relational interest" since it involves the opinion others in the community may have, or tend to have of the plaintiff.

The law of defamation protects the interest in reputation — the interest in acquiring, retaining and enjoying one's reputation as good as one's character and conduct warrant. The mere fact that the plaintiff's feelings and sensibilities have been offended is not enough to create a cause of action for defamation. Defamation requires that something be communicated to a third person that may affect the opinion others may have of the plaintiff. The unprivileged communication must be shown of a statement that would tend to hurt plaintiff's reputation, to impair plaintiff's standing in the community.

Although the gist of an action for defamation is an injury to reputation, the focus of a defamation action is upon the allegedly defamatory statement itself and its predictable effect upon third persons. A statement is ordinarily considered defamatory if it "tend[s] to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation or disgracex x x." The Restatement of Torts defines a defamatory statement as one that "tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him."

Consequently as a prerequisite to recovery, it is necessary for the plaintiff to prove as part of his prima facie case that the defendant (1) published a statement that was (2) defamatory (3) of and concerning the plaintiff.

The rule in libel is that the action must be brought by the person against whom the defamatory charge has been made. In the American jurisdiction, no action lies by a third person for damages suffered by reason of defamation of another person, even though the plaintiff suffers some injury therefrom. For recovery in defamation cases, it is necessary that the publication be "of and concerning the plaintiff." Even when a publication may be clearly defamatory as to somebody, if the words have no personal application to the plaintiff, they are not actionable by him. If no one is identified, there can be no libel because no one's reputation has been injured x x x x

In fine, in order for one to maintain an action for an alleged defamatory statement, it must appear that the plaintiff is the person with reference to whom the statement was made. This principle is of vital importance in cases where a group or class is defamed since, usually, the larger the collective, the more difficult it is for an individual member to show that he was the person at whom the defamation was directed.

If the defamatory statements were directed at a small, restricted group of persons, they applied to any member of the group, and an individual member could maintain an action for defamation. When the defamatory language was used toward a small group or class, including every member, it has been held that the defamatory language referred to each member so that each could maintain an action. This small group or class may be a jury, persons engaged in certain businesses, professions or employments, a restricted subdivision of a particular class, a society, a football team, a family, small groups of union officials, a board of public officers, or engineers of a particular company.

In contrast, if defamatory words are used broadly in respect to a large class or group of persons, and there is nothing that points, or by proper colloquium or innuendo can be made to apply, to a particular member of the class or group, no member has a right of action for libel or slander. Where the defamatory matter had no special, personal application and was so general that no individual damages could be presumed, and where the class referred to was so numerous that great vexation and oppression might grow out of the multiplicity of suits, no private action could be maintained. This rule has been applied to defamatory publications concerning groups or classes of persons engaged in a particular business, profession or employment, directed at associations or groups of association officials, and to those directed at miscellaneous groups or classes of persons.

Distinguishing a small group — which if defamed entitles all its members to sue from a large group — which if defamed entitles no one to sue — is not always so simple. Some authorities have noted that in cases permitting recovery, the group generally has twenty five (25) or fewer members. However, there is usually no articulated limit on size. Suits have been permitted by members of fairly large groups when some distinguishing characteristic of the individual or group increases the likelihood that the statement could be interpreted to apply individually. For example, a single player on the 60 to 70 man Oklahoma University football team was permitted to sue when a writer accused the entire team of taking amphetamines to "hop up" its performance; the individual was a fullback, i.e., a significant position on the team and had played in all but two of the team's games.

A prime consideration, therefore, is the public perception of the size of the group and whether a statement will be interpreted to refer to every member. The more organized and cohesive a group, the easier it is to tar all its members with the same brush and the more likely a court will permit a suit from an individual even if the group includes more than twenty five (25) members. At some point, however, increasing size may be seen to dilute the harm to individuals and any resulting injury will fall beneath the threshold for a viable lawsuit.

x x x x There are many other groupings of men than those that are contained within the foregoing group classifications. There are all the religions of the world, there are all the political and ideological beliefs; there are the many colors of the human race. Group defamation has been a fertile and dangerous weapon of attack on various racial, religious and political minorities. Some states, therefore, have passed statutes to prevent concerted efforts to harass minority groups in the United States by making it a crime to circulate insidious rumors against racial and religious groups. Thus far, any civil remedy for such broadside defamation has been lacking.

There have been numerous attempts by individual members to seek redress in the courts for libel on these groups, but very few have succeeded because it felt that the groups are too large and poorly defined to support a finding that the plaintiff was singled out for personal attack x x x x (citations omitted).

Our conclusion therefore is that the statements published by petitioners in the instant case did not specifically identify nor refer to any particular individuals who were purportedly the subject of the alleged libelous publication. Respondents can scarcely claim to having been singled out for social censure pointedly resulting in damages.

A contrary view is expressed that what is involved in the present case is an intentional tortious act causing mental distress and not an action for libel. That opinion invokes Chaplinsky v. New Hampshire²² where the U.S. Supreme Court held that words heaping extreme profanity, intended merely to incite hostility, hatred or violence, have no social value and do not enjoy constitutional protection; and Beauharnais v. Illinois²³ where it was also ruled that hate speech which denigrates a group of persons identified by their religion, race or ethnic origin defames that group and the law may validly prohibit such speech on the same ground as defamation of an individual.

We do not agree to the contrary view articulated in the immediately preceding paragraph. Primarily, an "emotional distress" tort action is personal in nature, i.e., it is a civil action filed by an individual²⁴ to assuage the injuries to his emotional tranquility due to personal attacks on his character. It has no application in the instant case since no particular individual was identified in the disputed article of Bulgar. Also, the purported damage caused by the article, assuming there was any, falls under the principle of relational harm — which includes harm to social relationships in the community in the form of defamation; as distinguished from the principle of reactive harm — which includes injuries to individual emotional tranquility in the form of an infliction of emotional distress. In their complaint, respondents clearly asserted an alleged harm to the standing of Muslims in the community, especially to their activities in propagating their faith in Metro Manila and in other non-Muslim communities in the country.²⁵ It is thus beyond cavil that the present case falls within the application of the relational harm principle of tort actions for defamation, rather than the reactive harm principle on which the concept of emotional distress properly belongs.

Moreover, under the Second Restatement of the Law, to recover for the intentional infliction of emotional distress the plaintiff must show that: (a) The conduct of the defendant was intentional or in reckless disregard of the plaintiff; (b) The conduct was extreme and outrageous; (c) There was a causal connection between the defendant's conduct and the plaintiff's mental distress; and, (d) The plaintiff's mental distress was extreme and severe.²⁶

"Extreme and outrageous conduct" means conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society. The defendant's actions must have been so terrifying as naturally to humiliate, embarrass or frighten the plaintiff.²⁷ Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him or her to exclaim, "Outrageous!" as his or her reaction.²⁸

"Emotional distress" means any highly unpleasant mental reaction such as extreme grief, shame, humiliation, embarrassment, anger, disappointment, worry, nausea, mental suffering and anguish, shock, fright, horror, and chagrin.²⁹ "Severe emotional distress," in some jurisdictions, refers to any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so, including posttraumatic stress disorder, neurosis, psychosis, chronic depression, or phobia.³⁰ The plaintiff is required to show, among other things, that he or she has suffered emotional distress so severe that no reasonable person could be expected to endure it; severity of the distress is an element of the cause of action, not simply a matter of damages.³¹

Any party seeking recovery for mental anguish must prove more than mere worry, anxiety, vexation, embarrassment, or anger. Liability does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities. In determining whether the tort of outrage had been committed, a plaintiff is necessarily expected and required to be hardened to a certain amount of criticism, rough language, and to occasional acts and words that are definitely inconsiderate and unkind; the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough.³²

Hustler Magazine v. Falwell³³ illustrates the test case of a civil action for damages on intentional infliction of emotional distress. A parody appeared in Hustler magazine featuring the American fundamentalist preacher and evangelist Reverend Jerry Falwell depicting him in an inebriated state having an incestuous, sexual liaison with his mother in an outhouse. Falwell sued Hustler and its publisher Larry Flynt for damages. The United States District Court for the Western District of Virginia ruled that the parody was not libelous, because no reasonable reader would have understood it as a factual assertion that Falwell engaged in the act described. The jury, however, awarded $200,000 in damages on a separate count of "intentional infliction of emotional distress," a cause of action that did not require a false statement of fact to be made. The United States Supreme Court in a unanimous decision overturned the jury verdict of the Virginia Court and held that Reverend Falwell may not recover for intentional infliction of emotional distress. It was argued that the material might be deemed outrageous and may have been intended to cause severe emotional distress, but these circumstances were not sufficient to overcome the free speech rights guaranteed under the First Amendment of the United States Constitution. Simply stated, an intentional tort causing emotional distress must necessarily give way to the fundamental right to free speech.

It must be observed that although Falwell was regarded by the U.S. High Court as a "public figure," he was an individual particularly singled out or identified in the parody appearing on Hustler magazine. Also, the emotional distress allegedly suffered by Reverend Falwell involved a reactive interest — an emotional response to the parody which supposedly injured his psychological well-being.

Verily, our position is clear that the conduct of petitioners was not extreme or outrageous. Neither was the emotional distress allegedly suffered by respondents so severe that no reasonable person could be expected to endure it. There is no evidence on record that points to that result.

Professor William Prosser, views tort actions on intentional infliction of emotional distress in this manner³⁴ —

There is virtually unanimous agreement that such ordinary defendants are not liable for mere insult, indignity, annoyance, or even threats, where the case is lacking in other circumstances of aggravation. The reasons are not far to seek. Our manners, and with them our law, have not yet progressed to the point where we are able to afford a remedy in the form of tort damages for all intended mental disturbance. Liability of course cannot be extended to every trivial indignity x x x x The plaintiff must necessarily be expected and required to be hardened to a certain amount of rough language, and to acts that are definitely inconsiderate and unkind x x x The plaintiff cannot recover merely because of hurt feelings.

Professor Calvert Magruder reinforces Prosser with this succinct observation, viz:³⁵

There is no occasion for the law to intervene in every case where someone's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.

Thus, it is evident that even American courts are reluctant to adopt a rule of recovery for emotional harm that would "open up a wide vista of litigation in the field of bad manners," an area in which a "toughening of the mental hide" was thought to be a more appropriate remedy.³⁶ Perhaps of greater concern were the questions of causation, proof, and the ability to accurately assess damages for emotional harm, each of which continues to concern courts today.³⁷

In this connection, the doctrines in Chaplinsky and Beauharnais had largely been superseded by subsequent First Amendment doctrines. Back in simpler times in the history of free expression the Supreme Court appeared to espouse a theory, known as the Two-Class Theory, that treated certain types of expression as taboo forms of speech, beneath the dignity of the First Amendment. The most celebrated statement of this view was expressed in Chaplinsky:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Today, however, the theory is no longer viable; modern First Amendment principles have passed it by. American courts no longer accept the view that speech may be proscribed merely because it is "lewd," "profane," "insulting" or otherwise vulgar or offensive.³⁸ Cohen v. California³⁹ is illustrative: Paul Robert Cohen wore a jacket bearing the words "Fuck the Draft" in a Los Angeles courthouse in April 1968, which caused his eventual arrest. Cohen was convicted for violating a California statute prohibiting any person from "disturb[ing] the peace x x x by offensive conduct." The U.S. Supreme Court conceded that Cohen's expletive contained in his jacket was "vulgar," but it concluded that his speech was nonetheless protected by the right to free speech. It was neither considered an "incitement" to illegal action nor "obscenity." It did not constitute insulting or "fighting" words for it had not been directed at a person who was likely to retaliate or at someone who could not avoid the message. In other words, no one was present in the Los Angeles courthouse who would have regarded Cohen's speech as a direct personal insult, nor was there any danger of reactive violence against him.

No specific individual was targeted in the allegedly defamatory words printed on Cohen's jacket. The conviction could only be justified by California's desire to exercise the broad power in preserving the cleanliness of discourse in the public sphere, which the U.S. Supreme Court refused to grant to the State, holding that no objective distinctions can be made between vulgar and nonvulgar speech, and that the emotive elements of speech are just as essential in the exercise of this right as the purely cognitive. As Mr. Justice Harlan so eloquently wrote: "[O]ne man's vulgarity is another man's lyric x x x words are often chosen as much for their emotive as their cognitive force."⁴⁰ With Cohen, the U.S. Supreme Court finally laid the Constitutional foundation for judicial protection of provocative and potentially offensive speech.

Similarly, libelous speech is no longer outside the First Amendment protection. Only one small piece of the Two-Class Theory in Chaplinsky survives — U.S. courts continue to treat "obscene" speech as not within the protection of the First Amendment at all. With respect to the "fighting words" doctrine, while it remains alive it was modified by the current rigorous clear and present danger test.⁴¹ Thus, in Cohen the U.S. Supreme Court in applying the test held that there was no showing that Cohen's jacket bearing the words "Fuck the Draft" had threatened to provoke imminent violence; and that protecting the sensibilities of onlookers was not sufficiently compelling interest to restrain Cohen's speech.

Beauharnais, which closely followed the Chaplinsky doctrine, suffered the same fate as Chaplinsky. Indeed, when Beauharnais was decided in 1952, the Two-Class Theory was still flourishing. While concededly the U.S. High Tribunal did not formally abandon Beauharnais, the seminal shifts in U.S. constitutional jurisprudence substantially undercut Beauharnais and seriously undermined what is left of its vitality as a precedent. Among the cases that dealt a crushing impact on Beauharnais and rendered it almost certainly a dead letter case law are Brandenburg v. Ohio,⁴² and, again, Cohen v. California.⁴³ These decisions recognize a much narrower set of permissible grounds for restricting speech than did Beauharnais.⁴⁴

In Brandenburg, appellant who was a leader of the Ku Klux Klan was convicted under the Ohio Criminal Syndicalism Statute for advocating the necessity, duty and propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reforms; and for voluntarily assembling with a group formed to teach or advocate the doctrines of criminal syndicalism. Appellant challenged the statute and was sustained by the U.S. Supreme Court, holding that the advocacy of illegal action becomes punishable only if such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.⁴⁵ Except in unusual instances, Brandenburg protects the advocacy of lawlessness as long as such speech is not translated into action.

The importance of the Brandenburg ruling cannot be overemphasized. Prof. Smolla affirmed that "Brandenburg must be understood as overruling Beauharnais and eliminating the possibility of treating group libel under the same First Amendment standards as individual libel."⁴⁶ It may well be considered as one of the lynchpins of the modern doctrine of free speech, which seeks to give special protection to politically relevant speech.

In any case, respondents' lack of cause of action cannot be cured by the filing of a class suit. As correctly pointed out by Mr. Justice Jose C. Vitug during the deliberations, "an element of a class suit is the adequacy of representation. In determining the question of fair and adequate representation of members of a class, the court must consider (a) whether the interest of the named party is coextensive with the interest of the other members of the class; (b) the proportion of those made parties as it so bears to the total membership of the class; and, (c) any other factor bearing on the ability of the named party to speak for the rest of the class.⁴⁷

The rules require that courts must make sure that the persons intervening should be sufficiently numerous to fully protect the interests of all concerned. In the present controversy, Islamic Da'wah Council of the Philippines, Inc., seeks in effect to assert the interests not only of the Muslims in the Philippines but of the whole Muslim world as well. Private respondents obviously lack the sufficiency of numbers to represent such a global group; neither have they been able to demonstrate the identity of their interests with those they seek to represent. Unless it can be shown that there can be a safe guaranty that those absent will be adequately represented by those present, a class suit, given its magnitude in this instance, would be unavailing."⁴⁸

Likewise on the matter of damages, we agree that "moral damages may be recovered only if the plaintiff is able to satisfactorily prove the existence of the factual basis for the damages and its causal connection with the acts complained of,⁴⁹ and so it must be, as moral damages although incapable of pecuniary estimation are designed not to impose a penalty but to compensate for injury sustained and actual damages suffered.⁵⁰ Exemplary damages, on the other hand, may only be awarded if claimant is able to establish his right to moral, temperate, liquidated or compensatory damages.⁵¹ Unfortunately, neither of the requirements to sustain an award for either of these damages would appear to have been adequately established by respondents."

In a pluralistic society like the Philippines where misinformation about another individual's religion is as commonplace as self-appointed critics of government, it would be more appropriate to respect the fair criticism of religious principles, including those which may be outrageously appalling, immensely erroneous, or those couched as fairly informative comments. The greater danger in our society is the possibility that it may encourage the frequency of suits among religious fundamentalists, whether Christian, Muslim, Hindu, Buddhist, Jewish, or others. This would unnecessarily make the civil courts a battleground to assert their spiritual ideas, and advance their respective religious agenda.

It need not be stressed that this Court has no power to determine which is proper religious conduct or belief; neither does it have the authority to rule on the merits of one religion over another, nor declare which belief to uphold or cast asunder, for the validity of religious beliefs or values are outside the sphere of the judiciary. Such matters are better left for the religious authorities to address what is rightfully within their doctrine and realm of influence. Courts must be viewpoint-neutral when it comes to religious matters if only to affirm the neutrality principle of free speech rights under modern jurisprudence where "[a]ll ideas are treated equal in the eyes of the First Amendment — even those ideas that are universally condemned and run counter to constitutional principles."⁵² Under the right to free speech, "there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas."⁵³ Denying certiorari and affirming the appellate court decision would surely create a chilling effect on the constitutional guarantees of freedom of speech, of expression, and of the press.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated 27 August 1998 is REVERSED and SET ASIDE, and the Decision of the RTC-Br. 4, Manila, dismissing the complaint for lack of merit, is REINSTATED and AFFIRMED. No pronouncement as to costs.

SO ORDERED.

Separate Opinions

VITUG, J ., concurring:

The innate right of a person to an unimpaired reputation and good name is no less a constitutional imperative than that which protects his life, liberty or property. Thus, the law imposes upon him who attacks another's reputation, by slanderous words or libelous publication, a liability to make compensation for the injury done and the damages sustained.¹

Private respondent Islamic Da'wah Council of the Philippines, Inc., a federation of more than 70 Muslim religious organizations in the country, and the other named respondents all claim, with understandable indignation, that they have been defamed by an item published by petitioners in Bulgar, a tabloid, circulated in the Metro Manila area. The article reads:

"ALAM BA NINYO?

"Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi kinakain ng mga Muslim?

"Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang kainin kahit na sila pa ay magutom at mawalan ng ulam sa tuwing sila ay kakain. Ginagawa nila itong Diyos at sinasamba pa nila ito sa tuwing araw ng kanilang pangingilin lalung-lalo na sa araw na tinatawag nilang 'Ramadan'."

Private respondents, for themselves and in behalf of all Muslims, filed the complaint before the trial court against petitioners, alleging that the published article was defamatory and an insult to respondents. The trial court dismissed the complaint. On appeal, the Court of Appeals reversed the decision of the lower court and ordered petitioners to pay damages to private respondents.

Aggrieved, petitioners are now before the Court to assail the findings of the Court of Appeals on the existence of the elements of libel, the right of respondents to institute the class suit, and the liability of petitioners for moral damages, exemplary damages, attorney's fees and costs of suit.

The present controversy stems from a civil action for damages and not from a criminal complaint. The Civil Code recognizes the possibility of such a civil action either pursuant to Article 26, paragraph (4), to the effect that although it may not constitute a criminal offense, "vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition," can give rise to a cause of action for damages, or consonantly with Article 33 which provides that in case of defamation, a civil complaint for damages, entirely separate and distinct from the criminal case, may be brought by the injured party. Both civil actions are based on tort liability under common law and require the plaintiff to establish that he has suffered personal damage or injury as a direct consequence of the defendant's wrongful conduct. In fine, it must be shown that the act complained of is vexatious or defamatory of, and as it pertains to, the claimant, thereby humiliating or besmirching the latter's dignity and honor.

Defined in simple terms, vexation is an act of annoyance or irritation that causes distress or agitation.² Early American cases have refused all remedy for mental injury, such as one caused by vexation, because of the difficulty of proof or of measurement of damages.³ In comparatively recent times, however, the infliction of mental distress as a basis for an independent tort action has been recognized. It is said that "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress."⁴ Nevertheless, it has also been often held that petty insult or indignity lacks, from its very nature, any convincing assurance that the asserted emotional or mental distress is genuine, or that if genuine it is serious.⁵ Accordingly, it is generally declared that there can be no recovery for insults,⁶ indignities or threats⁷ which are considered to amount to nothing more than mere annoyances or hurt feelings.⁸ At all events, it would be essential to prove that personal damage is directly suffered by the plaintiff on account of the wrongful act of the defendant.

A kindred concept, albeit of greater degree of perversity, defamation, broadly defined, is an attack on the reputation of another, the unprivileged publication of false statements which naturally and proximately result in injury to another.⁹ It is that which tends to diminish the esteem, respect, goodwill or confidence in which a person is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him.¹⁰ Defamation is an invasion of a "relational interest" since it involves the opinion which others in the community may have, or tend to have, of the plaintiff.¹¹ The Revised Penal Code, although not the primary governing law in this instance, provides an instructive definition of libel as being a form of defamation expressed in writing, print, pictures, or signs,¹² to wit: "A libel is a public and malicious imputation of a crime, or vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead."¹³

While arguably, the article subject of the complaint could be characterized as vexatious or defamatory and as imparting an erroneous interpretation of a Muslim practice that tends to ridicule the Islamic faith, it is, however, impersonal on its face, its language not being directed at any particular person but to a large segment of society. In order that defamatory words can be actionable in court, it is essential that they are personal to the party maligned, an ascertained or ascertainable individual.¹⁴ It is only then that plaintiff's emotions and/or reputation can be said to have been injured; thus, the plaintiff, to recover, must show that he or she is the person to whom the statements are directed.¹⁵ Declarations made about a large class of people cannot be interpreted to advert to an identified or identifiable individual. Absent circumstances specifically pointing or alluding to a particular member of a class, no member of such class has a right of action¹⁶ without at all impairing the equally demanding right of free speech and expression, as well as of the press, under the bill of rights.¹⁷

If an article, for instance, states that "judges in the Philippines are corrupt," such a general condemnation cannot reasonably be interpreted to be pointing to each judge or to a certain judge in the Philippines. Thus, no particular magistrate can claim to have been disgraced or to have sustained an impaired reputation because of that article. If, on the other hand, the article proclaims that "judges in Metro Manila are corrupt," such statement of derogatory conduct now refers to a relatively narrow group that might yet warrant its looking into in an appropriate suit. And if the article accuses the "Justices of the Supreme Court" of corruption, then there is a specific derogatory statement about a definite number of no more than fifteen persons.

Jurisprudence would appear to suggest that in cases permitting recovery, the group generally has 25 or fewer members.¹⁸ When statements concern groups with larger composition, the individual members of that group would be hardput to show that the statements are "of and concerning them."¹⁹ Although no precise limits can be set as to the size of a group or class that would be sufficiently small, increasing size, at some point, would be seen to dilute the harm to individuals and any resulting injury would fall beneath the threshold for a viable lawsuit.²⁰ This principle is said to embrace two important public policies: 1) where the group referred to is large, the courts presume that no reasonable reader would take the statements as so literally applying to each individual member; and 2) the limitation on liability would satisfactorily safeguard freedom of speech and expression, as well as of press, effecting a sound compromise between the conflicting fundamental interests involved in libel cases.²¹

Thus, no recovery was allowed where the remarks complained of had been made about correspondence schools, one school suing;²² or where there was imputation of criminality to a union, one member suing;²³ or where an attack was made on Catholic clergymen, one clergyman suing.²⁴

In Newsweek, Inc., vs. Intermediate Appellate Court,²⁵ this Court dismissed a class suit for scurrilous remarks filed by four incorporated associations of sugar planters in Negros Occidental in behalf of all sugar planters in that province, against Newsweek, Inc., on the ground, among other things, that the plaintiffs were not sufficiently ascribed to in the article published by the defendant. And so also it was in an older case,²⁶ where the Court ratiocinated that an article directed at a class or group of persons in broad language would not be actionable by individuals composing the class or group unless the statements were sweeping but, even then, it would be highly probable, said the Court, that no action could lie "where the body is composed of so large a number of persons that common sense would tell those to whom the publication was made that there was room for persons connected with the body to pursue an upright and law abiding course and that it would be unreasonable and absurd to condemn all because of the actions of a part."

In the present case, the subject article relates to the entire Muslim population and not just to the Islamic Da'wah Council of the Philippines or to any of the individual respondents. There is no direct reference or allusion to the federation or any of its members, or to any of the individual complainants. Respondents scarcely can claim having been singled out for social censure pointedly resulting in damages. Islamic Da'wah Council of the Philippines, Inc., itself, much like any other artificial being or juridical entity, having existence only in legal contemplation, would be devoid of any such real feeling or emotion as ordinarily these terms are understood,²⁷ and it cannot have that kind of reputation that an individual has that could allow it to sue for damages based on impinged personal reputation.²⁸

WHEREFORE, I vote to GRANT the petition and to SET ASIDE the assailed decision of the Court of Appeals, REINSTATING thereby the order of dismissal rendered by the Regional Trial Court.

CARPIO, J ., dissenting:

I dissent not because the newspaper article in question is libelous, but because it constitutes an intentional tortious act causing mental distress to those whom private respondent Islamic Da'wah Council of the Philippines; Inc. represents.

1. Nature of Action: Not a Libel but a Tort Case

Private respondents filed this class suit under Articles 19, 20, 21 and 26 of the Civil Code. Accordingly, private respondents stated their case as follows:

"Statement of Case

The Civil Code of the Philippines provides:

'Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith.' [Art. 19]

'Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same.' [Art. 20]

'Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.' [Art. 21]

'Every person shall respect the dignity, personality, privacy and peace of mind of his neighbor and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

(1) Prying into the privacy of another's residence;

(2) Meddling with or disturbing the private life or family relation of another;

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his religious belief, lowly station in life, place of birth, physical defect, or other personal condition.' [Art. 26]

It is on account of the foregoing provisions of our Civil Code that plaintiffs brought to the court 'a quo' a civil case for damages on account of a published article at the editorial section of the defendant newspaper x x x."¹

Petitioners acknowledge that private respondents' principal cause of action is based on tortious conduct when petitioners state in their Petition that "[p]laintiffs rely heavily on Article 26 of the Civil Code particularly par. 4 thereof." Petitioners, however, assert that the newspaper article in question has not caused mental anguish, wounded feelings, moral shock, social humiliation or similar injury to private respondents.²

Clearly, the instant case is not about libel which requires the identification of the plaintiff in the libelous statement. If this were a libel case under Article 30³ of the Civil Code, which authorizes a separate civil action to recover civil liability arising from a criminal offense, I would agree that the instant case could not prosper for want of identification of the private respondents as the libeled persons. But private respondents do not anchor their action on Article 30 of the Civil Code.

Private respondents insist that this case is principally about tortious conduct under Article 26 of the Civil Code. Unlike the action in Article 30 of the Civil Code which must arise from a "criminal offense," the action under Article 26 "may not constitute a criminal offense." Article 26, adopted from American jurisprudence, covers several kinds of intentional torts. Paragraph 4 of Article 26, which refers to acts humiliating another for his religious beliefs, is embraced in the tort known as intentional infliction of mental or emotional distress. This case must be decided on the issue of whether there was such tortious conduct, and not whether there was defamation that satisfied the elements of the crime of libel.

II. The Tortious Act in Question

The newspaper article in question published by petitioners states as follows:

"ALAM BA NINYO?

Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi kinakain ng mga Muslim? Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang kainin kahit na sila pa ay magutom at mawalan ng ulam sa tuwing sila kakain. Ginagawa nila itong Diyos at sinasamba pa nila ito sa tuwing araw ng kanilang pangingilin lalung-lalo na sa araw na tinatawag nilang 'Ramadan'."

Private respondents claim that the newspaper article, which asserts that Muslims worship the pig as their god, was published with intent to humiliate and disparage Muslims and cast insult on Islam as a religion in this country. The publication is not only grossly false, but is also the complete opposite of what Muslims hold dear in their religion.

The trial court found that the newspaper article clearly imputes a disgraceful act on Muslims. However, the trial court ruled that the article was not libelous because the article did not identify or name the plaintiffs. Declared the trial court:

"There is no doubt that the subject article contains an imputation of a discreditable⁴ act when it portrayed the Muslims to be worshipping the pig as their god. Likewise, there is no doubt that the subject article was published, the newspaper 'Bulgar' containing the same having been circulated in Metro Manila and in other parts of the country.

The defendants did not dispute these facts x x x However, x x x identity of the person is not present.

It must be noted that the persons allegedly defamed, the herein plaintiffs were not identified with specificity. The subject article was directed at the Muslims without mentioning or identifying the herein plaintiffs. x x x x."

In their appeal to the Court of Appeals, private respondents assailed the trial court for "deciding the case as a libel case rather than a case for damages for violation of Articles 19, 20, 21 and 26 of the Civil Code." The Court of Appeals reversed the decision of the trial court not on the basis of Articles 19, 20, 21 and 26, but on the ground that the newspaper article was libelous. Thus, the Court of Appeals held:

"It is clear from the disputed article that the defamation was directed at all adherents of the Islamic faith. It stated that pigs were sacred and idolized as god by members of the Muslim religion. This libelous imputation undeniably applied to the plaintiffs-appellants who are Muslims sharing the same religious beliefs."

Thus, both the trial and appellate courts found the newspaper article in question insulting and humiliating to Muslims, causing wounded feelings and mental anguish to believers of Islam. This is a finding of fact that the Court is duty bound to respect.⁵ This finding of fact establishes that petitioners have inflicted on private respondents an intentional wrongful act — humiliating persons because of their religious beliefs. Like the trial and appellate courts, we find the newspaper article in question dripping with extreme profanity, grossly offensive and manifestly outrageous, and devoid of any social value. The article evidently incites religious hatred, discrimination and hostility against Muslims.

Private respondents have certainly suffered humiliation and mental distress because of their religious beliefs. The only question is whether the wrongful act committed by petitioners, which does not constitute the crime of libel, is a case of damnum absque injuria or an actionable tort under paragraph 4, Article 26 of the Civil Code.

III. Why Article 26 of the Civil Code was Enacted

The Code Commission explained the inclusion of Article 26 in the Civil Code in this wise:

"The present laws, criminal or civil, do not adequately cope with interferences and vexations mentioned in Article 26.

The privacy of one's home is an inviolable right. Yet the laws in force do not squarely and effectively protect this right.

The acts referred to in No. 2 are multifarious, and yet many of them are not within the purview of the law in force. Alienation of the affection of another's wife or husband, unless it constituted adultery or concubinage, is not condemned by the law, much as it may shock society. There are numerous acts, short of criminal unfaithfulness, whereby the husband or the wife breaks the marital vows, thus causing untold moral suffering to the other spouse. Why should not these acts be the subject matter of a civil action for damages? In American law, they are.

Again, there is meddling of so-called friends who poison the mind of one or more members of the family against the other members. In this manner many a happy family is broken up or estranged. Why should not the law try to stop this by creating a civil action for damages?

Of the same nature is that class of acts specified in No. 3: intriguing to cause another to be alienated from his friends.

No less serious are the acts mentioned in No. 4: vexing, or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect or other personal condition. The penal laws against defamation and unjust vexation are glaringly inadequate.

Religious freedom does not authorize anyone to heap obloquy and disrepute upon another by reason of the latter's religion.

Not a few of the rich people treat the poor with contempt because of the latter's lowly station in life. To a certain extent this is inevitable, from the nature of the social make-up, but there ought to be a limit somewhere, even when the penal laws against defamation and unjust vexation are not transgressed. In a democracy, such a limit must be established. The courts will recognize it in each case. Social equality is not sought by the legal provision under consideration, but due regard for decency and propriety.

Place of birth, of physical defect and other personal conditions are too often the pretext of humiliation cast upon other persons. Such tampering with human personality, even though the penal laws are not violated, should be the cause of civil action.

The article under study denounces "similar acts" which could readily be named, for they occur with unpleasant frequency."⁶ (Emphasis supplied)

The intent of the Code Commission is quite clear: Article 26 specifically applies to intentional acts which fall short of being criminal offenses. Article 24 itself expressly refers to tortious conduct which "may not constitute criminal offenses." The purpose is precisely to fill a gap or lacuna in the law where a person who suffers injury because of a wrongful act not constituting a crime is left without any redress. Under Article 26, the person responsible for such act becomes liable for "damages, prevention and other relief." In short, to preserve peace and harmony in the family and in the community, Article 26 seeks to eliminate cases of damnum absque injuria in human relations.

Consequently, the elements that qualify the same acts as criminal offenses do not apply in determining responsibility for tortious conduct under Article 26. Where the tortious act humiliating another because of his religious beliefs is published in a newspaper, the elements of the crime of libel need not be satisfied before the aggrieved person can recover damages under Article 26. In intentional tort under Article 26, the offensive statements may not even be published or broadcasted but merely hurled privately at the offended party.

In intentional infliction of mental distress, the gravamen of the tort is not the injury to plaintiff's reputation, but the harm to plaintiff's mental and emotional state. In libel, the gist of the action is the injury to plaintiff's reputation. Reputation is the community's opinion of what a person is.⁷ In intentional infliction of mental distress, the opinion of the community is immaterial to the existence of the action although the court can consider it in awarding damages. What is material is the disturbance on the-mental or emotional state of the plaintiff who is entitled to peace of mind. The offensive act or statement need not identify specifically the plaintiff as the object of the humiliation. What is important is that the plaintiff actually suffers mental or emotional distress because he saw the act or read the statement and it alludes to an identifiable group to which he clearly belongs.

If one of the petitioners, without specifically naming private respondents, hurled the same statement in private separately to each of the private respondents, the act would be actionable under Article 26 because it would cause mental distress to each private respondent. The fact that the statement was made publicly in fact makes matters worse because the mental or emotional distress caused on private respondents would even be aggravated by the publicity. This merely illustrates that the requirements of libel have no application in intentional torts under Article 26 where the impression of the public is immaterial while the impact on the mind or emotion of the offended party is all-important. That is why in American jurisprudence the tort of intentional infliction of mental or emotional distress is completely separate and distinct⁸ from the twin torts of libel and slander.⁹

The majority opinion, however, cites the U.S. Supreme Court decision in Hustler Magazine v. Falwell¹⁰ as authority that a person "may not recover for intentional infliction of emotional distress arising from a publication unless the publication contained a false statement of fact that was made with actual malice, that is, with a knowledge of falsity or reckless disregard for the truth." The majority opinion's reliance on Hustler is misplaced. The doctrine in Hustler applies only to public figures, and the U.S. Supreme Court found that "respondent Falwell is a 'public figure' for purposes of First Amendment law." The U.S. Supreme Court held in Hustler that —

"We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publication such as the one here at issue without 'a showing in addition that the publication contains a false statement of fact which was made with 'actual malice,' i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. x x x." (Emphasis supplied)

Evidently, Hustler allows recovery for intentional infliction of emotional distress if the aggrieved party is a private person and not a public figure even if there is no showing that the false statement was made with actual malice. In the instant case, private respondents are not public figures or public officials but ordinary private individuals represented by private respondent Islamic Da'wah Council of the Philippines, Inc.

IV. Constitutional Guarantee of 'Full Respect for Human Rights'

The 1987 Constitution provides that "[t]he State values the dignity of every human person and guarantees full respect for human rights."¹¹ The Constitution created a Commission on Human Rights with the function, among others, to "[M]onitor the Philippine Government's compliance with international treaty obligations on human rights."¹² The framers of the Constitution made it clear that the term "human rights" as used in the Constitution referred to the civil and political rights embodied in the International Covenant on Civil and Political Rights¹³ to which the Philippines is a signatory. This is clear from the following exchange in the deliberations of the Constitutional Commission:

"MR. GARCIA: But it does not mean that we will refer to each and every specific article therein, but only to those that pertain to the civil and politically related, as we understand it in this Commission on Human Rights.

MR. GUINGONA: Madam President, I am not clear as to the distinction between social and civil rights.

MR. GARCIA: There are two international covenants: the International Covenant (on) Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The second covenant contains all the different rights — the rights of labor to organize, the right to education, housing, shelter, etcetera.

MR. GUINGONA: So we are just limiting at the moment the sense of the committee to those the Gentleman has specified.

MR. GARCIA: Yes, to civil and political rights.

MR. GUINGONA: Thank you."¹⁴ (Emphasis supplied)

Article 20 (2) of the International Covenant on Civil and Political Rights provides that "[a]ny advocacy of x x xreligious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law." The Human Rights Committee created under the Covenant, in its 1983 Nineteenth Session, reported to member states that:

"1. x x x In view of the nature of article 20, States parties are obliged to adopt the necessary legislative measures prohibiting the actions referred to therein. However, the reports have shown that in some States such actions are neither prohibited by law nor are appropriate efforts intended or made to prohibit them. Further, many reports failed to give sufficient information concerning the relevant national legislation and practice.

2. x x x For article 20 to become fully effective there ought to be a law making it clear that propaganda and advocacy as described therein are contrary to public policy and providing for an appropriate sanction in case of violation. x x x ."¹⁵

The Covenant, being an international treaty to which the Philippines is a signatory, is part of the country's municipal law.¹⁶ The Covenant carries great weight in the interpretation of the scope and meaning of the term "human rights" as used in the Constitution. Unquestionably, the framers of the Constitution intentionally referred to the civil and political rights embraced in the Covenant in describing the term "human rights." The Constitution even mandates the independent Commission on Human Rights to monitor the compliance of the Philippine Government, which includes the judiciary, with its treaty obligations under the Covenant.

Paragraph 4, Article 26 of the Civil Code makes civilly liable any person who humiliates another because of his religious beliefs. This is just a soft prohibition of advocacy of religious hatred that incites discrimination, hostility or violence, the act the Covenant seeks to curb and which the Philippine Government has undertaken to declare unlawful. Other countries that signed the Covenant have criminalized the acts prohibited under the Covenant. Since our ratification of the Covenant in 1986, the Philippines has not enacted any special legislation to enforce the provisions of the Covenant, on the ground that existing laws are adequate to meet the requirements of the Covenant. There is no other law, except paragraph 4, Article 26 of the Civil Code, that can provide a sanction against intentional conduct, falling short of a criminal act, advocating religious hatred that incites hostility between Muslims and Christians in this country.

If we are to comply in good faith with our treaty obligations under the Covenant, as the Constitution expressly mandates the Philippine Government, we must give redress under Article 26 to the outrageous profanity suffered by private respondents. Our Constitution adopts the generally accepted principles of international law as part of the law of the land. Pacta sunt servanda — every treaty in force binds the parties who must comply with the treaty in good faith¹⁷ — is one such principle. Thus, if we refuse to apply Article 26 to the instant case, then we admit that we have no law to enforce the Covenant. In effect, we admit non-compliance with the Covenant.

The Supreme Court of Canada, in interpreting Canada's obligation under the Covenant, explained in R. v. Keegstra:¹⁸

"C.E.R.D. (Convention on the Elimination of All Forms of Racial Discrimination) and I.C.C.P.R. (International Covenant on Civil and Political Rights) demonstrate that the prohibition of hate promoting expression is considered to be not only compatible with a signatory nation's guarantee of human rights, but is as well an obligatory aspect of this guarantee. Decisions under the European Convention for the Protection of Human Rights and Fundamental Freedoms are also of aid in illustrating the tenor of the international community's approach to hate propaganda and free expression. This is not to deny that finding the correct balance between prohibiting hate propaganda and ensuring freedom of expression has been a source of debate internationally (see, e.g., Nathan Lerner, The U.N. Convention on the Elimination of All Forms of Racial Discrimination (1980), at pp. 43-54). But despite debate Canada, along with other members of the international community, has indicated a commitment to prohibiting hate propaganda, and in my opinion this court must have regard to that commitment in investigating the nature of the government objective behind s. 319(2) of the Criminal Code. That the international community has collectively acted to condemn hate propaganda, and to oblige State Parties to C.E.R.D. and I.C.C.P.R. to prohibit such expression, thus emphasizes the importance of the objective behind s. 319(2) and the principles of equality and the inherent dignity of all persons that infuse both international human rights and the Charter."

As a signatory to the Covenant, the Philippines is, like, Canada, obligated under international law and the 1987 Constitution to protect the inherent dignity and human rights of all its citizens.

V. Freedom of Expression and Profane Utterances

The blatant profanity contained in the newspaper article in question is not the speech that is protected by the constitutional guarantee of freedom of expression. Words that heap extreme profanity, intended merely to incite hostility, hatred or violence, have no social value and do not enjoy constitutional protection. As explained by the United States Supreme Court in the landmark case of Chaplinsky v. New Hampshire:¹⁹

"Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument." (Emphasis supplied)

Chaplinsky expressly includes profane utterances as belonging to the narrowly limited classes of speech that are not constitutionally protected. Profane utterances, like asserting that Muslims worship the pig as their God, have no social value meriting constitutional protection. Black's Law Dictionary (6th Ed.) defines the words "profane" and "profanity" as follows:

"Profane. Irreverence toward God or holy things. Writing, speaking, or acting, in manifest or implied contempt of sacred things. Town of Torrington v. Taylor, 59 Wyo. 109, 137 P.2d 621, 624; Duncan v. U.S., C.C.A. Or., 48 F.2d 128, 133. That which has not been consecrated."

"Profanity. Irreverence towards sacred things; particularly, an irreverent and blasphemous use of the name of God. Vulgar, irreverent, or coarse language. It is a federal offense to utter an obscene, indecent, or profane language on radio. 18 U.S.C.A. § 1464. See also Obscenity."

The majority opinion states that the doctrine in Chaplinsky "had largely been superseded by subsequent First Amendment doctrines." The majority opinion then cites the 1971 case of Cohen v. California ²⁰ as an "illustrative" case that "American courts no longer accept the view that speech may be proscribed merely because it is 'lewd,' 'profane,' 'insulting' or otherwise vulgar or offensive." However, Hustler Magazine v. Falwell,²¹ a 1988 case which the majority opinion also cites, clearly explains the state of American law on this matter, thus:

"Admittedly, these oft-repeated First Amendment principles, like other principles, are subject to limitations. We recognized in Pacifica Foundation that speech that is 'vulgar, offensive, and shocking' is 'not entitled to absolute constitutional protection under all circumstances.' In Chaplinsky v. New Hampshire, we held that that a State could lawfully punish an individual for the use of insulting 'fighting words' — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.' These limitations are but recognition of the observation in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. 472 U.S. 749 (1985) that this Court has 'long recognized that not all speech is of equal First Amendment importance.' x x x ." [other citations omitted] x x x."

Indeed, while democratic societies maintain a deep commitment to the principle that debate on public issues should be uninhibited, robust and wide open, this free debate has never been meant to include libelous, obscene or profane utterances against private individuals.²² Clearly, the newspaper article in question, dripping with extreme profanity, does not enjoy the protection of the constitutional guarantee of freedom of speech.

VI. Court's Duty and Power to Enforce Constitutional Rights

The 1987 Constitution has conferred on the Court the power to "[p]romulgate rules concerning the protection and enforcement of constitutional rights." This is an innovation in the 1987 Constitution to insure, in the words of former Chief Justice Roberto R. Concepcion, one of the framers of the Constitution, that "the protection and enforcement of these constitutional rights is something that the courts have to consider in the exercise of their judicial power.²³ This provision stresses that constitutional rights, whether found in the Bill of Rights or in other provisions of the Constitution like in the Declaration of Principles and State Policies, are "not merely declaratory but are also enforceable."²⁴

One such right, the enforcement and protection of which is expressly guaranteed by the State under the Constitution, is the right to "full respect for human rights." The trial and appellate courts have found that private respondents' religious beliefs and practices have been twisted, ridiculed and vilified by petitioners. This is a clear violation of the human rights of private respondents under the Constitution and the International Covenant on Civil and Political Rights. It now becomes the duty of the Court, as the guardian of the fundamental rights of the people, to exercise its power to protect and enforce the constitutional rights of private respondents.

The Court, pursuant to its rule making power, can require that in actions like the instant case, the plaintiffs must bring a class suit. This will avoid multiplicity of suits considering the numerous potential plaintiffs all over the country. A judgment in a class suit, whether favorable or unfavorable to the class, is binding under the res judicata principle on all members of the class whether or not they were before the court.²⁵ This rule will address the fear that cases will swamp the courts all over the country if profanities against religious groups are made actionable under Article 26.

VII. The Special Circumstance of Muslim Secession in the South

Limitations on freedom of expression have always been rooted on special circumstances confronting a society in its historical development. In the 1950s, faced with rising racial tension in American society, the U.S Supreme Court ruled in Beauharnais v. Illinois²⁶ that hate speech which denigrates a group of persons defined by their religion, race or ethnic origin defames that group and the law may validly prohibit such speech on the same ground as defamation of an individual. This was the only time that the U.S. Supreme Court upheld group libel, and since then, there has been a consistent retreat from this doctrine as blacks and other ethnic groups became more assimilated into the mainstream of American society. Beauharnais expressly acknowledged that race riots and massive immigration of unassimilated ethnic groups justified the legislature in "punishing x x x libels directed at designated collectives and flagrantly disseminated."

The majority opinion states also that Beauharnais has been superseded by Brandenburg v. Ohio."²⁷ The majority opinion explains that Brandenburg, a 1969 decision, ruled that "advocacy of illegal action becomes punishable only if such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." While Beauharnais has been apparently weakened by subsequent decisions of the U.S. Supreme Court, it was not overturned in Brandenburg which did not even cite or mention Beauharnais. What Brandenburg overturned was Whitney v. California,²⁸ thus —

"Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled." (Emphasis supplied)

In any event, Brandenburg involved the constitutionality of a criminal statute which sought to punish the mere advocacy of violence as a means to accomplish industrial or political reform. This is distinctly different from the instant case, which involves profane utterances that have long been recognized as devoid of social value and outside the purview of constitutionally protected speech.²⁹

In 1990, the Canadian Supreme Court, in R. v. Keegstra,³⁰ upheld a law criminalizing hate speech toward any section of the public distinguished by color, race, religion or ethnic origin. The Canadian Supreme Court rejected the clear and present danger test of the U.S. Supreme Court, stating that it did not address the psychological trauma hate propaganda causes and the subtle and incremental way hate propaganda works. The Canadian Supreme Court found the U.S. Supreme Court's Beauharnais decision more reflective of Canadian values rather than later U.S. decisions that weakened Beauharnais. The Canadian Supreme Court handed down Keegstra at a time when Canada was becoming a multi-racial society following the influx of immigrants of different color, ethnic origin and religion. The following passages in Keegstra are instructive:

"A myriad of sources — both judicial and academic — offer reviews of First Amendment jurisprudence as it pertains to hate propaganda. Central to most discussions is the 1952 case of Beauharnais v. Illinois, where the Supreme Court of the United States upheld as constitutional a criminal statute forbidding certain types of group defamation. Though never overruled, Beauharnais appears to have been weakened by later pronouncements of the Supreme Court (see, e.g., Garrison v. Louisiana, 379 U.S. 64 (1964); Ashton v. Kentucky, 384 U.S. 195 (1966); New York Times Co. v. Sullivan, 376 U.S. 254 1964); Brandenburg v. Ohio, 395 U.S. 444 (1969); and Cohen v. California, 403 U.S. 15 (1971)). The trend reflected in many of these pronouncements is to protect offensive, public invective as long as the speaker has not knowingly lied and there exists no clear and present danger of violence or insurrection.

xxx           xxx           xxx

The question that concerns us in this appeal is not, of course, what the law is or should be in the United States. But it is important to be explicit as to the reasons why or why not American jurisprudence may be useful in the s. 1 analysis of s. 319(2) of the Criminal Code. In the United States, a collection of fundamental rights has been constitutionally protected for over 200 years. The resulting practical and theoretical experience is immense, and should not be overlooked by Canadian courts. On the other hand, we must examine American constitutional law with a critical eye, and in this respect La Forest J. has noted in R. v. Rahey, (1987) 1 S.C.R. 588 at 639:

'While it is natural and even desirable for Canadian courts to refer to American constitutional jurisprudence in seeking to elucidate the meaning of Charter guarantees that have counterparts in the United States Constitution, they should be wary of drawing too ready a parallel between constitutions born to different countries in different ages and in very different circumstances. . .'

Canada and the United States are not alike in every way, nor have the documents entrenching human rights in our two countries arisen in the same context. It is only common sense to recognize that, just as similarities will justify borrowing from the American experience, differences may require that Canada's constitutional vision depart from that endorsed in the United States." (Other citations omitted)

xxx           xxx           xxx

First, it is not entirely clear that Beauharnais must conflict with existing First Amendment doctrine. Credible arguments have been made that later Supreme Court cases do not necessarily erode its legitimacy (see, e.g., Kenneth Lasson, "Racial Defamation as Free Speech: Abusing the First Amendment" (1985), 17 Colum. Human Rights L. Rev. 11). Indeed, there exists a growing body of academic writing in the United States which evinces a stronger focus upon the way in which hate propaganda can undermine the very values which free speech is said to protect. This body of writing is receptive to the idea that, were the issue addressed from this new perspective, First Amendment doctrine might be able to accommodate statutes prohibiting hate propaganda (see, e.g., Richard Delgado, "Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling" (1982), 17 Harv. C.R.-C.L. Law Rev. 133; Irving Horowitz, "Skokie, the ACLU and the Endurance of Democratic Theory" (1979), 43 Law & Contemp. Prob. 328; Lasson, op. cit., at pp. 20–30; Mari Matsuda, "Public Response to Racist Speech: Considering the Victim's Story," (1989), 87 Mich. L. Rev. 2320, at p. 2348; "Doe v. University of Michigan: First Amendment — Racist and Sexist Expression on Campus — Court Strikes Down University Limits on Hate Speech" (1990), 103 Harv. L. Rev. 1397)."

In deciding Keegstra, the Canadian Supreme Court also relied on Canada's treaty obligations under the United Nations International Covenant on Civil and Political Rights which requires signatory states to prohibit any "advocacy of x x x religious hatred that constitutes incitement to discrimination, hostility or violence." During the negotiations of the Covenant, the United States objected to this provision on free speech grounds. When it finally ratified the Covenant, the United States made a reservation rejecting this provision insofar as it conflicts with U.S. constitutional protections.³¹ The Covenant opened for ratification on December 19, 1966 and entered into force on March 23, 1976. The Philippines ratified the Covenant in 1986 without any reservation, just like Canada. The 1987 Constitution of the Philippines even created a Commission on Human Rights to "[M]onitor the Philippine Government's compliance with international treaty obligations on human rights." Obviously, Canada and the Philippines are alike in their obligations under the Covenant, but the United States is differently situated.³²

In our country, there has been a long festering and bloody Muslim secessionist movement in the South, fueled not only by poverty but also by the palpable feeling among Muslims that the Christian majority is not treating Muslims fairly. Private respondents in the instant case, despite the outrageous profanity hurled at them by petitioners, chose not to join their secessionist brethren in the armed struggle but instead decided to petition our courts for legal redress of their grievance. They could have easily retaliated by flinging their own blasphemous invectives against the Christian religion. They did not, realizing perhaps that answering profanity with more profanity would mean answering hatred with more hatred, further dividing rather than unifying the Filipino nation.

Just last November of 2002, a Christian newspaper in Nigeria where the Miss World contest was being held opined that the Prophet Mohammed would have approved of the beauty contest. The newspaper stated: "What would Mohammed think? In all honesty, he would have probably chosen a wife from one of them." These words provoked bloody rioting in Nigeria among Muslims who felt insulted by the article. Hundreds died in the religious riots. Yet the offensive article in the Nigerian newspaper pales in comparison to the utterly profane newspaper article in the instant case.

Indeed, private respondent Islamic Da'wah Council of the Philippines, a federation of more than 70 Muslim religious organizations in the Philippines, deserves commendation for bringing this case before our courts for a peaceful and legal resolution of the issue. Private respondents have placed their trust and faith in our courts, knowing and insisting that they are entitled to a just remedy under paragraph 4, Article 26 of the Civil Code. It is time to breathe life to this long dormant provision of the Civil Code, to give even just a token redress to religious minorities who suffer mental and emotional distress from mindless profanity committed by irresponsible persons belonging to the religious majority. In the process we will contribute in avoiding a further cleavage in the fabric of our nation, and demonstrate to our Muslim brothers that their grievances can be redressed under the rule of law.

The instant case does not even call for a re-examination of the clear and present danger test which we have adopted in this jurisdiction in determining the constitutionality of legislation that impinges on civil liberties.³³ Even under the clear and present danger test, profane utterances are not constitutionally protected at least with respect to profanities directed against private individuals. The special circumstance involving the Muslim secessionist movement in the South should make us more sensitive to the grievances of our Muslim brothers who continue to have faith in the rule of law in this country.

Since the peace of mind of private respondents has been violated by the publication of the profane article in question, Article 26 of the Civil Code mandates that the tortious conduct "shall produce a cause of action for damages, prevention and other relief." Article 2219 of the same Code provides that "[M]oral damages may be recovered in x x x actions referred to in Articles 21, 26 x x x ." Private respondents are entitled to moral damages because, as duly established by the testimonies of prominent Muslims,³⁴ private respondents suffered emotional distress which was evidently the proximate result of the petitioners' wrongful publication of the article in question.³⁵

VII. Conclusion

Almost thirty years ago, I had occasion to write about Article 26 in this wise:

"At the time Article 26 was lifted by the Code Commission from American jurisprudence, many of the rights embodied therein were not yet widely accepted by American courts, and in fact even now at least one, the right to privacy, is still struggling to gain recognition in some states. While we have been quick to leapfrog American state decisions in recognizing such rights, we have, however, been painfully slow in galvanizing the same in actual cases. To date Article 26 stands almost as a mere decorative provision in our statutes; but it may be harnessed fruitfully anytime."³⁶

Now is the time to apply this provision of law since the instant case falls clearly within paragraph 4 of Article 26. Applying Article 26 will not undermine freedom of speech since the profane publication in question belongs to the class of speech that clearly does not enjoy constitutional protection. Applying Article 26 demonstrates good faith compliance with our treaty obligations under the International Covenant on Civil and Political Rights. Applying Article 26 implements the constitutional policy that the "State values the dignity of every human person and guarantees full respect for human rights." Applying Article 26 constitutes compliance by the Court of its constitutional duty to protect and enforce constitutional rights. Applying Article 26 will help bind the wounds that mindless profanities inflict on religious minorities in violation of their human rights.

Accordingly, I vote to dismiss the petition and affirm the award by the Court of Appeals of P50,000.00 moral damages, P10,000.00 exemplary damages, and P10,000.00 attorney's fees to respondent Islamic Da'wah Council of the Philippines, Inc. based on paragraph 4, Article 26 of the Civil Code.

Dissenting Opinion

AUSTRIA-MARTINEZ, J., dissenting:

I vote to affirm the assailed decision of the Court of Appeals with certain modifications.

For a proper perspective of the issues involved in the present petition, it must be emphasized that the portion of the subject article which alludes to the Muslims as not eating pork because it is dirty is not the bone of contention of respondents, because admittedly, the Muslims may eat pork if driven by necessity, as expressed in the Quran, to wit:

"Allah has forbidden you only what dies of itself and blood and the flesh of swine and that over which any other (name) than (that of) Allah has been invoked. Then, whoever is driven by necessity, not desiring, nor exceeding the limit, no sin is upon him."¹

The focal point of private respondents' claim for damages is the insult heaped upon them because of the malicious publication that the Muslims worship the pig as their God which is absolutely contrary to their basic belief as Muslims that there is only one God they call Allah, and, that the greatest sin in Islam is to worship things or persons other than Allah.²

Petitioners are liable for damages both under Articles 33 and 26(4) of the Civil Code. The instances that can be brought under Article 26 may also be subject to an action for defamation under Article 33. In such a case, the action brought under Article 26 is an alternative remedy, and the plaintiff can proceed upon either theory, or both, although he can have but one recovery for a single instance of publicity.³

Article 33 of the Civil Code provides:

"Article 33. In cases of defamation, fraud and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence." (Emphasis supplied)

Necessarily, Article 353 of the Revised Penal Code comes into play. In the present civil case, it is necessary that respondents are able to establish by preponderance of evidence the following elements of defamation:

"1. That there must be an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance.

"2. That the imputation must be made publicly.

"3. That it must be malicious.

"4. That the imputation must be directed at a natural or juridical person, or one who is dead.

"5. That the imputation must tend to cause the dishonor, discredit or contempt of the person defamed."⁴

An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is dead.⁵

As a general rule, words, written or printed, are libelous per se if they tend to expose a person to public hatred, contempt, ridicule, aversion, or disgrace, induce an evil opinion of him in the minds of right thinking persons, and deprive him of their friendly intercourse in society, regardless of whether they actually produce such results.⁶ Otherwise stated; words published are libelous if they discredit plaintiff in the minds of any considerable and respectable class in the community, taking into consideration the emotions, prejudices, and intolerance of mankind.⁷ It has been held that it is not necessary that the published statements make all or even a majority of those who read them think any less of the person defamed, but it is enough if a noticeable part of those who do read the statements are made to hate, despise, scorn or be contemptuous of the person concerning whom the false statements are published.⁸

Thus, in order to be libelous per se, the defamatory words must be of such a nature that the court can presume as a matter of law that they will tend to disgrace and degrade the person or hold him up to public hatred, contempt, ridicule or cause him to be shunned and avoided; in other words, they must reflect on his integrity, his character, and his good name and standing in the community, and tend to expose him to public hatred, contempt, or disgrace.⁹ The imputation must be one which tends to affect plaintiff in a class of society whose standard of opinion the court can recognize.¹⁰ It is not sufficient, standing alone, that the language is unpleasant and annoys or irks plaintiff, and subjects him to jests or banter, so as to affect his feelings.¹¹

In the present case, it is evident that the subject article attributes a discreditable or dishonorable act or condition to all Muslims in general, a derision of the religious beliefs of the Muslims and of the objectives of respondent Council to herald the truth about Islam, in particular. The portion of the assailed article which declares that the Muslims worship the pigs as God is obnoxiously contrary to the basic belief of the Muslims.

Thus, the article is not only an imputation of irreligious conduct but also a downright misrepresentation of the religious beliefs of Muslims. It has been held that scandalous matter is not necessary to make a libel; it is enough if the defendant induces an ill opinion to be held of the plaintiff, or to make him contemptible or ridiculous; ¹² or that the imputation tends to cause dishonor, discredit or contempt of the offended party.¹³

Petitioners' stance that the article "Alam Ba Ninyo?" is but an expression of belief or opinion does not justify said publication. It cannot be considered as a mere information being disseminated. Petitioners' defense that the article itself was merely a contribution of a reader, or that the writer was soliciting opinion from the readers, does not hold water, since the article did not in any way refer to such circumstance. Verily, the article, read as a whole with the other paragraphs, calls the attention of the readers to a statement of fact, not fiction, and that the writer speaks with authority on the subject matter. Bulgar in fact prides itself as being the "Pahayagan Ng Katotohanan".

Significantly, liability for libel does not depend on the intention of the defamer, but on the fact of the defamation.¹⁴ In matters of libel, the question is not what the writer of an alleged libel means, but what is the meaning of the words he has used.¹⁵ The meaning of the writer is quite immaterial. The question is, not what the writer meant, but what he conveyed to those who heard or read.¹⁶

In other words, it is not the intention of the speaker or writer, or the understanding of the plaintiff or of any particular hearer or reader, by which the actionable quality of the words is to be determined. It is the meaning that the words in fact conveyed, rather than the effect which the language complained of was fairly calculated to produce and would naturally produce on the minds of persons of reasonable understanding, discretion, and candor, taking into consideration accompanying explanations and surrounding circumstances which were known to the hearer or reader. The alleged defamatory statement should be construed not only as to the expression used but also with respect to the whole scope and apparent object of the writer.¹⁷

Want of intention to vilify does not render an objectionable publication any the less a libel and a publication is not excused by the publisher's ignorance that it contains libelous matter.¹⁸ The state of mind of the person who publishes a libel is immaterial in determining liability. The law looks at the tendency and consequences of the publication rather than the motive or intention of the writer or publisher.¹⁹ It does not signify what the motive of the person publishing the libel was, or whether he intended it to have a libelous meaning or not.²⁰ The defendant may not have intended to injure the plaintiff's reputation at all and he may have published the words by mistake or inadvertence,²¹ or in jest, or without intending to refer, or knowing that he was referring, to the plaintiff, or any existing person, or again he may have been actuated by the best motives in publishing the words, but such facts will usually afford the defendant no defense, though they may be urged in mitigation of damages.²²

Tested with the foregoing principles of law, there is no doubt that the article in question is defamatory under Article 33 of the Civil Code. If the imputation is defamatory,²³ the Court has held that malice is presumed and the burden of overcoming the presumption of malice by mere preponderance of evidence rested on the petitioners.

A careful examination of the records of the case does not reveal any cogent reason that would set aside the presumption of malice. In fact, there is convincing evidence that the publication of the assailed article was malicious, as more extensively discussed in the latter portion of herein opinion.

Furthermore, there is no showing that the instant case falls under any of the exceptions provided for in Article 354 of the Revised Penal Code, to wit:

"Art. 354. Requirement of publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

"1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

"2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions."

Consequently, there is no compelling reason to disregard the findings of the Court of Appeals that no evidence was presented to overcome said presumption of malice.

On the matter of publication, there is no dispute that the same is present, as the subject article was admittedly published in the newspaper "Bulgar" which was circulated in Metro Manila and in other parts of the country.

It must be emphasized that not only did both the trial court and the appellate court find that the subject article was published, they also held that the subject article contains an imputation of a discreditable act when it portrayed the Muslims to be worshipping the pig as their god.

But the trial court and the appellate court differed as to the presence of the element of the identity of the persons defamed. While the trial court held that the libelous article does not identify the personalities of the persons defamed and therefore respondents had no cause of action, the Court of Appeals ruled that the Muslims were the defamed persons and respondent IDCP has the requisite personality to sue for damages. The appellate court is right.

Specific identity of the person defamed means that the third person who read or learned about the libelous article must know that it referred to the plaintiff.²⁴ In order to maintain a libel suit, it is essential that the victim is identifiable although it is not necessary that he be named; it is likewise not sufficient that the offended party recognized himself as the person attacked or defamed, but it must be shown that at least a third person could identify him as the object of the libelous publication.²⁵

It cannot be refuted that the obvious victims in the article in question are specifically identified — the Muslims. The principle laid down in Newsweek, Inc. vs. Intermediate Appellate Court,²⁶ that "where the defamation is alleged to have been directed at a group or class, it is essential that the statement must be so sweeping or all-embracing as to apply to every individual in that class or group, or sufficiently specific so that each individual in that class or group can prove that the defamatory statement specifically pointed to him, so that he can bring the action separately, if need be," obviously applies to the present case. Certainly, the defamatory imputation contained in the subject article is a sweeping statement affecting a common or general interest of all Muslims, that is, their religious belief in Allah as the one and only God. The publication was directed against all Muslims without exceptions and it is not necessary to name each one of them as they could only have one cause of action which is the damage suffered by them caused by the insult inflicted on their basic religious tenets.

All premises considered, petitioners are indeed liable for damages under Article 33 of the Civil Code.

Significantly, the respondents brought to the attention of the Court of Appeals the failure of the trial court to appreciate Article 26(4) of the Civil Code, but the appellate court simply delved exclusively on the applicability of libel and the existence of its elements.

Ordinarily, the Court may only pass upon errors assigned.²⁷ However, this rule is not without exceptions. The Court has ruled that an appellate court is accorded a broad discretionary power to consider errors not assigned, involving, among others, (1) matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice; (2) matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored; and (3) matters not assigned as errors on appeal but upon which the determination of a question properly assigned, is dependent.²⁸ Evidently, all three exceptions apply to the present case.

Necessarily, the Court has to dwell on the applicability of Article 26 (4) of the Civil Code in support of respondents' claim for damages.

Before proceeding any further, a distinction must first be made between a cause of action based on libel or defamation, whether in a criminal or civil case, and one based on Article 26. In libel, the gravamen of the claim is reputational harm; whereas, under Article 26, it can be the embarrassment, emotional harm or mental distress caused upon a person.²⁹ In libel cases, its four (4) constitutive elements, to wit: (a) defamatory imputation; (b) malice; (c) publication; and (d) identifiability of the victim,³⁰ must be established, by mere preponderance of evidence in a civil case which herein petitioners have done in the present case. Said elements, however, are not essential in a cause of action based on tort under Article 26, wherein one is liable for personal injury, whether administered intentionally, wantonly or by negligence.³¹ Personal injury herein refers not only to reputation but also encompasses character, conduct, manner, and habits of a person.³²

American Tort Law, on the basis of which, Philippine Tort Law was patterned, has recognized that if the plaintiff is shown to have suffered a wrong, the mere paucity of cases or absence of any precedent does not constitute sufficient reason for refusing relief if a sound principle of law can be found which governs, or which by analogy ought to govern.³³ The fact that a case is novel does not operate to defeat recovery, if it can be brought within the general rules of law applicable to torts.³⁴ Neither is the fact that a tort action does not fit into a nicely defined or established "cubbyhole" of the law has been said not to warrant, in itself, the denial of relief to one who is injured.³⁵ Thus, to ignore the application of the proper provision of law in the instant case would be an abdication of the judiciary's primordial objective, which is, the just resolution of disputes.

Article 26 is an integral part of the Chapter in the Civil Code on human relations, "designed to indicate certain norms that spring from the fountain of good conscience. These guides for human conduct should run as golden threads through society, to the end that law may approach its supreme ideal, which is the sway and dominance of justice."³⁶ Article 26, which enhances and preserves human dignity and personality, provides:

"Article 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief.

"(1) Prying into the privacy of another's residence;

"(2) Meddling with or disturbing the private life or family relations of another;

"(3) Intriguing to cause another to be alienated from his friends;

"(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition." (Emphasis supplied)

The raison d'être for the foregoing statutory provision, as stated by the Code Commission in its Report, is worth setting forth verbatim:

"The sacredness of human personality is a concomitant of every plan for human amelioration. The touchstone of every system of laws, of the culture and civilization of every country, is how far it dignifies man. If in legislation, inadequate regard is observed for human life and safety; if the laws do not sufficiently forestall human suffering, or do not try effectively to curb those factors or influences that wound the noblest sentiments; if the statutes insufficiently protect persons from being unjustly humiliated, in short, if human personality is not properly exalted — then the laws are indeed defective. Sad to say, such is to some "degree the present state of legislation in the Philippines. To remedy this grave fault in the laws is one of the principal aims of the Project of Civil Code. Instances will now be specified.

"The present laws, criminal and civil, do not adequately cope with the interferences and vexations mentioned in Article 26."³⁷ (Emphasis supplied)

Thus, Article 26 provides aggrieved individuals with a legal remedy against violations of human personality, even though such do not amount to violations of penal laws. Social equality is not sought, but simply due regard for decency and propriety.³⁸

Among the rights covered by Article 26 are: (a) personal dignity, (b) personal security; (c) family relations, (d) social intercourse, (e) privacy and (f) peace of mind.³⁹ However, it has been held that the violations mentioned in the Article 26 are not exclusive but are merely examples and do not preclude other similar acts.⁴⁰ Thus, disturbing or offensive utterances, such as threats, false statements, or insulting, humiliating, scandalous, or abusive language,⁴¹ may give rise to an action in tort where such language causes mental or emotional disturbance, as in this case, or bodily injury or illness resulting therefrom.⁴²

Paragraph 4 of Article 26 which makes one liable for vexing or humiliating another on account of his religious beliefs finds proper application in the case at bar. The Code Commission stressed in no uncertain terms that religious freedom does not authorize anyone to heap obloquy and disrepute upon another by reason of the latter's religion.⁴³

In support of respondents' claim for damages, Professor Abdul Rafih Sayedy, Dean of the Institute of Islamic Affairs of the University of the Philippines, testified in this wise:

"WITNESS:

"A:         First, I understood that this tabloid is the voice of katotohanan but regarding this article it is not 'katotohanan'. To the Muslim it is a blasphemy. It is an abuse and desecration and belief of the Muslims and the Muslims are commanded by God to worship no other than Him. So how could the publisher publish that the Muslims are worshipping pigs, that Muslims in his mind do not eat animals while they are also eating slaughtered chicken, cow and carabao and other non-prohibited animals. So to the Muslims this is an insult, not only to the Muslims in Mindanao but to the whole Muslim community. This is a blasphemy to the Muslims.

"Q         As a Muslim, Professor Sayedy, how do you feel about this article?

"A         I feel insulted and I feel that the beliefs of the Muslims are over abused by the publisher and it is a defamation and desecration on the religion of the Islam.

"Q         What is the concept of God insofar as the religion of Islam is concerned?

"A         The concept of God is that God is the only God, He was not begotten and He is to be worshipped and no other to be worshipped aside from him, He has no beginning and has no end, He is the creator of all creatures and He should be honored by all creatures."⁴⁴

Clearly therefrom, the assailed article is vexatious and humiliating to Muslims as they adore only one God, they call Allah. Muslims are called Muslims because they sincerely believe in the Quran and the Hadith (the Saying and the Conduct of the Prophet). It cannot be over-stressed that Muslims do not eat pork because it is forbidden in the Quran for being unclean not because they hold pigs as sacred and worship them; and that to the Muslims, the greatest sin in Islam is to worship persons or things other than Allah.⁴⁵

Petitioner Myla C. Aguja, who testified as Myla Tabora, admitted in open court that she: wrote the subject article; was a graduate of "Mass Com"; based the said article on her interpretation of what she recalled she had read in Reader's Digest while she was still in high school; and did not verify if what she recalled was true⁴⁶ . Such shocking irresponsible attitude on her part who at that time was an Assistant Editor of Bulgar is utterly malicious, in the same degree as the failure of the rest of the petitioners (except Binegas, Jr.)⁴⁷ to verify the truthfulness of the subject article, for which they should be held liable for damages.

The freedom of expression and the right of speech and of the press are, to be sure, among the most zealously protected rights in the Constitution. But the constitutional right of freedom of expression may not be availed of to broadcast lies or half-truths nor may it be used to insult others, for such would be contrary to the plain mandate of the Civil Code for each person "to respect the dignity, personality, privacy and peace of mind of his neighbors and other persons." The freedom of speech does not require a journalist to guarantee the truth of what he says or publishes but it does prohibit publishing or circulating statements in reckless disregard without any bona fide effort to ascertain the truth thereof.⁴⁸

By causing the assailed article to be published in reckless disregard of the truth thereof, petitioners publisher MVRS, Editor-in-Chief Mars C. Laconsay, Assistant Editor and writer Myla C. Aguja (Myla Tabora) exhibited utter irresponsibility and acted contrary to the Code of Ethics adopted by the journalism profession in the Philippines, for which they deserve condemnation. The assailed article has falsely portrayed all Muslims as worshippers of pig or swine and thus, perverted their religious beliefs and demeaned the Muslims as a segment of human society. It belittled the Muslims by inverting the relative importance of their religious beliefs and practice, thereby disgracing the ideals and aspirations of the Muslim people. Such amounts to a violation of their personal dignity and peace of mind, which are the very rights affirmed by Article 26.

Petitioner Binegas should be absolved from liability. It is not refuted that the principal function of petitioner Binegas, Jr., as Circulation Manager of Bulgar, was to supervise the delivery and the distribution of the paper, monitor the accounts of the agents and schedule the circulation personnel. It is likewise unrebutted that petitioner Binegas, Jr. was never consulted on what articles are to be published; that he had no authority to decide whether or not a certain publication of Bulgar shall be circulated; and that his only duty was to distribute the issue after its printing.⁴⁹ As such, his duty being ministerial in character, petitioner Binegas, Jr., should have been exonerated from liability.

Now, do plaintiffs-respondents IDCP and its officers have the requisite personality to institute the suit? The answer is in the affirmative. Respondents IDCP and its officers have the requisite personality to institute the suit inasmuch as the action is properly a class suit.

The concept of a "true" class suit has been elucidated upon in Re: Request of the Heirs of the Passengers of Doña Paz,⁵⁰ thus:

"What makes a situation a proper case for a class suit is the circumstance that there is only one right or cause of action pertaining or belonging in common to many persons, not separately or severally to distinct individuals.

'The 'true' class action, which is the invention of equity, is one which involves the enforcement of a right which is joint, common, or secondary or derivative. x x (It) is a suit wherein, but for the class action device, the joinder of all interested parties would be essential.

'A 'true class action' — as distinguished from the so-called hybrid and the spurious class action in U.S. Federal Practice — 'involves principles of compulsory joinder, since x x (were it not) for the numerosity of the class members all should x x (be) before the court. Included within the true class suit x x (are) the shareholders' derivative suit and a class action by or against an unincorporated association x x. A judgment in a true class suit, whether favorable or unfavorable to the class, is binding under res judicata principles upon all the members of the class, whether or not they were before the court. It is the nondivisible nature of the right sued on which determines both the membership of the class and the res judicata effect of the final determination of the right.'

"The object of the suit is to obtain relief for or against numerous persons as a group or as an integral entity, and not as separate, distinct individuals whose rights or liabilities are separate from and independent of those affecting the others." (Emphasis supplied)

In order that a class suit may prosper, Section 12, Rule 3 of the Rules of Court requires the concurrence of three (3) essential elements, namely: (1) that the subject matter of the controversy is one of common or general interest to many persons; (2) that the parties are so numerous that it is impracticable to bring them all before the court; and (3) that the action be maintained by parties who will fairly and adequately represent the class.

Under the first requisite, the person who sues must have an interest in the controversy, common with those for whom he sues, and there must be that unity of interest between him and all such other persons which would entitle them to maintain the action if suit was brought by them jointly.⁵¹

As to what constitutes common interest in the subject matter of the controversy has been explained in Sulo ng Bayan, Inc. vs. Araneta, Inc.,⁵² thus:

"The interest that will allow parties to join in a bill of complaint, or that will enable the court to dispense with the presence of all the parties, when numerous, except a determinate number, is not only an interest in the question, but one in common in the subject matter of the suit, x x x a community of interest growing out of the nature and condition of the right in dispute; for, although there may not be any privity between the numerous parties, there is a common title out of which the question arises, and which lies at the foundation of the proceedings x x x [here] the only matter in common among the plaintiffs, or between them and the defendants, is an interest in the question involved, which alone cannot lay a foundation for the joinder of parties. There is scarcely a suit at law, or in equity, which settles a principle or applies a principle to a given state of facts or in which a general statute is interpreted, that does not involve a question in which other parties are interested x x x."

It has further been held that in order to maintain a class action there must be an ascertainable class as well as a community of interest among the members of that class in questions of law and fact involved.⁵³ The class must be cognizable and manageable, and must be defined at the outset of the action. There must be a cognizable class beyond the general strains which can be conceived to create a class of any superficially resembling parties, but it is not necessary that the exact number comprising the class be specified or that the members be identified.⁵⁴

The first element is present in this case. The class spoken of in the assailed article that segregates them from the other members of the general populace is the Muslim people, and their common interest, undoubtedly, is their religious belief in adoring Allah as the one and only God and that the greatest sin is to worship persons or things other than Allah. The article is an outrageous misrepresentation, inflicting stark insult on the religious beliefs of the Muslims.

Concerning the second element, i.e., numerosity of parties — one must bear in mind that the purpose. of the rule permitting class actions is to furnish a mode of obtaining a complete determination of the rights of the parties in such cases, when the number is so great as to preclude involvement by actual service. In this class of cases, one is allowed to sue for all as a matter of convenience in the administration of justice. A class action is particularly proper in an action wherein the persons are so multitudinous as vexatiously to prolong and probably altogether prevent a full hearing.⁵⁵

Judicial notice may be taken of the fact that Muslims in this country comprise a lot of the population, thus, it is highly impractical to make them all parties or bring them all before the court. It is beyond contradiction that the Muslims affected by the assailed article are multitudinous, and therefore, the second element is present in the instant case.

With regards to the third element, that the action be maintained by one who fairly and adequately represents the class, it is essential that the relief sought must be beneficial to the class members, the party must represent the entire class asserted, and be a member of the class he claims to represent, in addition to having an interest in the controversy common with those for whom he sues.⁵⁶ For adequate representation, it is sufficient that there are persons before the court who have the same interest as the absent persons and are equally certain to bring forward the entire merits of the question and thus give such interest effective protection.⁵⁷ It has also been held that whether the class members are adequately represented by the named plaintiffs depends on the quality of representation rather than on the number of representative parties as compared with the total membership of the class.⁵⁸ Thus, even one member of a large class can provide the kind of representation for all that is contemplated by the class suit.⁵⁹

Respondent IDCP, as a religious organization, being a federation or umbrella organization of more than seventy (70) Muslim religious organizations in the Philippines, and its officers who are individual respondents as well, carry the requisite personality to file a case for damages in behalf of all Muslims. Unequivocally, they properly represent the Muslims who are similarly situated and affected by the assailed article.

Respondent officers of IDCP namely, Abdulrahman R.T. Linzag, Ibrahim F. P. Arcilla, Abdul Rashid De Guzman, and Ibrahim B. A. Junio, as well as their witness, Professor Abdul Rafih Sayedy, not only testified on how the assailed article emotionally, as well as psychologically, affected each of them, but also as to how the said article received the condemnation and contempt of other Muslims, further evidenced by the letter dated September 21, 1992 from thirty-one (31) students of the Islamic University Madinah Al-Mukarramah, K.S.A.,⁶⁰ and the seething letter of one Abdil T. Arafat of South Cotabato province, dated September 29, 1992.⁶¹

Moreover, an officer may sue in his own behalf if the defamation affects him as well as the corporation⁶² , or where the defamation against the officer has a direct relation to the corporation's trade or business and it causes injury⁶³ .

Thus, without a shred of doubt, respondents IDCP and the individual respondents, and all Muslims they represent, have interest so identical that the motive and inducement to protect and preserve may be assumed to be the same in each.⁶⁴ By instituting the suit, the respondents necessarily represent all Muslims.⁶⁵

Under Article 2217 of the Civil Code, moral damages which include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury, although incapable of pecuniary computation, may be recovered for acts and actions based on Article 26.⁶⁶

Individual Muslim plaintiffs-respondents, Abdulrahman R.T. Linzag, Ibrahim F. P. Arcilla, Abdul Rashid De Guzman, and Ibrahim B. A. Junio, as well as their witness, Professor Abdul Rafih Sayedy, as proper representatives of the class action testified on the despair, mental anguish, social humiliation and inferior feeling experienced by the Muslims as a result of the vexatious article.⁶⁷ Thus, the award of moral damages is justified.

The award of exemplary damages and attorney's fees is likewise warranted and the amount is in accordance with Articles 2229⁶⁸ and 2208⁶⁹ of the Civil Code.

However, damages awarded to individual respondents should be deleted inasmuch as the instant case is considered as a class suit and they merely acted as officers and members of the principal plaintiff-respondent IDCP.

One last point. There should be no room for apprehension on future litigations relating to the assailed article in view of the fact that the instant suit is a class suit. In a class suit, each member of the class for whose benefit the action is brought is a party plaintiff; the persons represented are quasi parties or parties by representation. A suit brought in behalf of others in a class gives the court jurisdiction of the whole subject matter, and of all the parties, such that the judgment will be binding on all persons belonging to the class represented.⁷⁰

In other words, a judgment in a class action concludes upon all members of the class, whether formally joined as parties or not. ⁷¹ The class action has preclusive effect against one who was not named representative of the class, as long as he was a member of the class which was a party to the judgment.⁷²

Thus, in the case at bar, the Muslims, who are parties represented by respondent IDCP and its officers, are thereby precluded from instituting separate or individual suits for damages against MVRS Publications, Inc., et al., as they are bound by the judgment in this class action, which amounts to res judicata.

In the light of all the foregoing, I am constrained to dissent from the majority opinion.

³ Article 30 of the Civil Code provides as follows: "When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be sufficient to prove the act complained of."

⁴ Should be discreditable.

⁵ International Corporate Bank v. Gueco, 351 SCRA 516 (2001); French Oil Mill Machinery Co., Inc. v. Court of Appeals, 295 SCRA 462 (1998); Lagandaon v. Court of Appeals, 290 SCRA 330 (1998); Sandoval v. Court of Appeals, 260 SCRA 283 (1996).

⁶ Report of the Code Commission, pp. 32–33.

⁷ In People v. Silvela, 103 Phil. 773, the Court, citing American jurisprudence, stated: "If the defamatory matter is not seen or heard by anyone except the defamer and the defamed, damages to character reputation can not result since a man's reputation is the estimate in which others hold him, and not what he himself thinks." Black's Law Dictionary (6th Ed.) defines "reputation" thus: "Estimation in which one is held; the character imputed to a person by those acquainted with him. That by which we are known and is the total sum of how we are seen by othersx x x. General opinion, good or bad, held of a person by those of the community in which he resides."

⁸ M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W. 2d 681 (1980); Section 46, Restatement (Second) of Torts.

²² New York Times v. Sullivan, 376 U.S. 254 (1964). Prior to New York Times, the prevailing view in the U.S. was that lewd, obscene and profane speech was not constitutionally protected, whether directed at private individuals or public officials. New York Times imposed, with respect to public officials, a qualified constitutional privilege. The U.S. Supreme Court stated that "the constitutional protections for speech and press require a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice,' that is, with knowledge that it was false or made with reckless disregard of whether it was false or not."

³¹ Hate Speech in the Constitutional Law of the United States, William B. Fisch, American Journal of Comparative Law, Fall 2002.

³² "American constitutional law generally protects hate speech of various kinds, including religious and racial. In this area, the law of the United States is precisely contrary to international human rights norms. Article 20(2) of the International Covenant on Civil and Political Rights states, 'Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."' David M. Smolin, Exporting the First Amendment? Evangelism, Proselytism, and the International Religious Freedom Act, 31 Cumberland Law Review, 2000–2001.

³³ ABS-CBN Broadcasting Corp. v. Commission on Elections, 323 SCRA 811 (2000).

³⁴ Decision of Judge Vetino E. Reyes dated June 31, 1995, pp. 4–6.

³⁵ Article 2217, Civil Code.

³⁶ Antonio T. Carpio, Intentional Torts in Philippine Law, Philippine Law Journal, Vol. 47, No. 5 (December 1972).

AUSTRIA-MARTINEZ, J., dissenting:

¹ Quran, Chapter 16:115. See also Chapter 7:145.

² Michael J. Diamond and Peter G. Gowing, "Islam and Muslim: Some Basic Information". 1981 New Day Publishing, Quezon City, pp. 29–30. (Michael J. Diamond is Vicar General of the Prelature of Marawi, Marawi City, Lanao del Sur; Peter G. Gowing was a Doctor of Theology in Ecumenics and Church History).

³ R. A. Epstein, C. O. Gregory, and H. Kalven, Jr., Cases and Materials on Torts, 1984 Ed., p. 1271 citing Restatement (Second) of the Law of Torts, Section 652E.

⁴ Luis B. Reyes, "The Revised Penal Code", Book II, Fourteenth Edition, Revised 1998, p. 921.

²⁷ Jimenez vs. Patricia, Inc., 340 SCRA 525 (2000); Philippine Basketball Association vs. Court of Appeals, 337 SCRA 358 (2000); Victorias Milling Co., Inc. vs. Court of Appeals, 333 SCRA 663 (2000); Roman Catholic Archbishop of Manila vs. Court of Appeals, 269 SCRA 145, 153 (1997).

²⁸ Catholic Bishop of Balanga vs. Court of Appeals, 264 SCRA 181, 191–192 (1996). See also Sy vs. Court of Appeals, 330 SCRA 550, 555–556 (2000); Logronio vs. Taleseo, 312 SCRA 52, 61–62 (1999); Dando vs. Frazer, 227 SCRA 126, 133 (1993); Espina vs. Court of Appeals, 215 SCRA 484, 488 (1992); Carillo vs. De Paz, 18 SCRA 467, 471 (1966); Hernandez vs. Andal, 78 Phil. 196, 209–210 (1947).

⁶⁸ Article 2229 Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages.

⁶⁹ Article 2208 In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except:

(1) When exemplary damages are awarded;

xxx           xxx           xxx

(11) In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered.

In all cases, the attorney's fees and expenses of litigation must be reasonable.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

PEOPLE OF THE PHILIPPINES, appellee,
vs.JESUS G. RETUBADO alias "JESSIE," appellant. SECOND DIVISION G.R. No. 124058               December 10, 2003

 

 

D E C I S I O N

CALLEJO, SR., J.:

This is an appeal from the Decision¹ of the Regional Trial Court, Toledo City, Branch 29, in Criminal Case No. TCS-2153 convicting the appellant Jesus G. Retubado of murder, sentencing him to reclusion perpetua, and directing him to indemnify the heirs of the victim Emmanuel Cañon the sum of P50,000.00.

The appellant was indicted for murder in an Information, the accusatory portion of which reads:

That on the 5th day of November, 1993 at 9:30 o’clock in the evening, more or less, at Barangay I Poblacion, Municipality of Tuburan, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill, by means of treachery, evident premeditation and taking advantage of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and shoot Emmanuel Cañon with the use of unlicensed revolver of unknown caliber, thereby hitting the latter on his forehead, resulting to the instantaneous death of the said victim.

CONTRARY TO LAW.²

Shortly before November 5, 1993, someone played a joke on Edwin Retubado, the appellant’s younger brother who was mentally ill. Someone inserted a lighted firecracker in a cigarette pack and gave it to Edwin. He brought the cigarette home and placed it on the dining table as he was having dinner with his father. Momentarily, the firecracker exploded. The suspect was Emmanuel Cañon, Jr., The Cañons and the appellant were neighbors. The matter was brought to the attention of the barangay captain who conducted an investigation. It turned out that Emmanuel Cañon, Jr. was not the culprit. The barangay captain considered the matter closed. The appellant, however, was bent on confronting Emmanuel Cañon, Jr.

On November 5, 1993, at about 9:00 p.m., 50-year-old Emmanuel Cañon, Sr., a pedicab driver called it a day and decided to go home after a day’s work. He drove his pedicab and stopped at the junction of Rizal and Gallardo Streets, at the poblacion of Tuburan. The appellant, who was conversing with Marcial Luciño saw him. "Noy, why is [it] your son did something to my brother?" Emmanuel ignored the appellant. The appellant was incensed and ran after Emmanuel. He overtook Emmanuel, grabbed and pushed the pedicab which nearly fell into a canal. Emmanuel again ignored the appellant and pedaled on until he reached his house. His wife, Norberta Cañon was in the balcony of their house, above the porch waiting for him to arrive. Emmanuel, Jr., meanwhile, was already asleep. Undeterred, the appellant continued following Emmanuel.

Shortly after Emmanuel had entered his house, the appellant arrived and tarried at the porch. Emmanuel suddenly opened the door and demanded to know why he was being followed. The appellant told Emmanuel that he just wanted to talk to Emmanuel, Jr., but Emmanuel told the appellant that his son was already asleep. Norberta went down from the balcony and placed her hand on her husband’s shoulder to pacify him.

The appellant forthwith pulled out a handgun from under his T-shirt and shot Emmanuel on the forehead. The latter fell to the floor as the appellant walked away from the scene. Norberta shouted for help. The neighbors, her daughter, and her son-in-law arrived. They brought Emmanuel to the Tuburan District Hospital, but the victim died shortly thereafter. Dr. Ivar G. Arellano, the Municipal Health Officer, performed an autopsy on the cadaver of Emmanuel and prepared a report thereon with the following findings:

Examination in Detail:

On detailed examination, a gunshot wound was found at the left side of the forehead, measuring 1 cm. in diameter. At the skin surrounding this wound was found powder burns which measured 3 cms. in diameter as the skin had been blackened and burned by powder of the bullet. The underlying frontal bone was fractured and depressed. The underlying meninges of the brain as well as the frontal area of the brain was traumatized and injured. Blood and cerebrospinal fluid were leaking from this wound. The edges of this bullet wound was inverted thus this was the gunshot entry wound. The wound was found to be circular in shape. The exit wound was found at the left parietal bone measuring 1.2 cm. in size or diameter for this wound communicated with the entry wound of the left side of the forehead. The connection from the wound of entry to the exit wound measured 8 cms. The parietal bone was fractured and was depressed and the parietal part of the brain and meninges was traumatized. Blood and cerebrospinal fluid as well as brain tissues leaked out from this wound.

Possible cause of death:

1. Gunshot wound at the head (left side) with injury to brain and meninges

2. Hypovolemic shock secondary to loss of blood (Severe loss of blood)

(Sgd.) Ivar G. Arellano
MUN. Health Officer³

Dr. Charity Patalinghug and the victim’s daughter Loreta C. Claro signed Emmanuel’s Certificate of Death.⁴ The appellant surrendered to the police authorities but failed to surrender the firearm he used to kill the victim. Forensic Officer Myrna P. Areola of the PNP Regional Office subjected the appellant to paraffin tests. The Chemical Analysis of the paraffin casts gave the following results:

FINDINGS:

...

1. POSITIVE for the presence of gunpowder residue on his left hand cast.

2. NEGATIVE for the presence of gunpowder residue on his right hand cast.⁵

Norberta also testified on the expenses incurred by her family due to her husband’s death. No documentary evidence was, however, offered to support the same. She declared that she felt sad and lonely as a result of her husband's death.

The Case for the Appellant

The appellant admitted shooting the victim but claimed that he was merely performing a lawful act with due care; hence, cannot be held criminally liable for the victim’s death. He testified that when he insisted that Emmanuel wake up his son, Emmanuel went to his room and emerged therefrom holding a handgun with his right hand. Emmanuel’s trigger finger was outside the trigger guard, and he held the firearm with the muzzle facing downward. Fearing that he would be shot, the appellant took hold of Emmanuel’s right hand with his left, and pulled the gun towards Emmanuel’s stomach. The appellant grabbed Emmanuel’s free hand with his right hand, and the old man almost fell on his knees to the ground. Emmanuel still resisted. The appellant pulled the gun to the level of Emmanuel’s forehead, and the gun suddenly went off. The bullet hit Emmanuel’s forehead. Norberta fled from the house. For his part, the appellant rushed to his house to change clothes. He placed the gun on the dining table before entering his bedroom. When he went back to the dining room to get the gun, his younger sister, Enrica told him that their brother Edwin had taken the gun. He found Edwin outside their house near the church, and the latter told the appellant that he threw the gun into the sea. When the appellant asked his brother to show him where he threw the gun, Edwin refused to do so.

Marcial Luciño corroborated the appellant’s testimony. He testified that he was talking with the appellant at around 9:00 p.m. at the junction of Rizal and Gallardo streets when the victim Emmanuel passed by in his pedicab. When the appellant called the victim, the latter ignored the call, prompting the appellant to chase the victim, and eventually push the pedicab into a canal.

The appellant’s father, Iñigo Retubado, testified that on the evening of November 5, 1993, he was in their house with Edwin, his son who was mentally-ill. It was already late when the appellant arrived. The appellant was disheveled, and laid down the gun he was carrying on the table. The appellant told his father that he would surrender to the police because he had shot somebody.⁶ The appellant thereafter went to his room to change clothes while Iñigo went to the comfort room to answer the call of nature. When he was done, he saw the appellant frantically looking for the gun. As Edwin was also nowhere to be found, Iñigo concluded that Edwin might have taken the gun with him. He also testified on Edwin’s mental imbalance and on the latter’s confinement at the Psychiatric Department of the Don Vicente Sotto Memorial Medical Center in Cebu City sometime in 1991.⁷

On November 6, 1993, the appellant surrendered to the police authorities. Although he was required by the municipal trial court to file his counter-affidavit, the appellant refused to do so.

After due proceedings, the trial court rendered judgment in Criminal Case No. TCS-2153, convicting the appellant of murder, and sentencing him to reclusion perpetua. The decretal portion of the decision reads:

WHEREFORE, in view of the foregoing, this Court finds accused GUILTY beyond reasonable doubt of the crime of Murder under Art. 248 R.P.C. and sentences the accused to the penalty of Reclusion Perpetua and to indemnify the heirs of the deceased the sum of P50,000.00.

However, accused is given full credit of his preventive imprisonment.

SO ORDERED.⁸

On appeal, the appellant assails the decision of the trial court contending that:

I

First Assignment of Error

THE LOWER COURT ERRED IN NOT FINDING THE DEATH OF THE DECEASED AS CAUSED BY MERE ACCIDENT WITHOUT FAULT OR INTENTION OF CAUSING IT WHILE THE ACCUSED WAS PERFORMING A LAWFUL ACT WITH DUE CARE OR, IN THE ALTERNATIVE, IT ERRED IN NOT CONVICTING HIM JUST MERELY OF HOMICIDE INSTEAD OF MURDER.

II

Second Assignment of Error

THE LOWER COURT ERRED IN DISREGARDING THE VERY RELEVANT AND MATERIAL CONTENTS OF EXHIBIT "B" OF THE PROSECUTION --- CHEMISTRY REPORT, PARAFFIN TEST -- WHICH ARE FAVORABLE TO THE ACCUSED.

III

Third Assignment of Error

THE LOWER COURT ERRED IN CONCLUDING THAT THE TESTIMONY OF THE SOLE WITNESS OF THE PROSECUTION IS SATISFACTORY AND SUFFICIENT TO CONVICT THE ACCUSED OF MURDER.

IV

Fourth Assignment of Error

THE LOWER COURT ERRED IN FAILING TO CONSIDER THAT THE ACCUSED HAS EXPLAINED WHY HE FAILED TO SURRENDER THE GUN WHICH HE GOT FROM THE DECEASED.⁹

The appellant asserts that he was merely performing a lawful act of defending himself when he grabbed the victim’s hand which held the gun. The gun accidentally fired and the bullet hit the victim’s forehead. The accident was not the appellant’s fault. The appellant asserts that when he wrestled with the victim for the possession of the gun, he was merely defending himself. He contends that he had no intention of killing the victim, as he merely wanted to talk to his son. If he had wanted to kill the victim, he could have easily done so when he met the latter for the first time that fateful night of November 5, 1993. Moreover, the appellant submits, he did not commit any felony; hence, under paragraph 4 of Article 12 of the Revised Penal Code, he is not criminally liable for the death of the victim.¹⁰ In the alternative, the appellant asserts that he should be convicted only of the crime of homicide under Article 249 of the Revised Penal Code, since the qualifying circumstance of treachery is wanting. He and the victim had a heated exchange of words before they grappled for the possession of the gun. Such heated discussion had already forewarned the victim and placed him on guard; thus, treachery cannot be legally considered.

The contention of the appellant has no merit. Article 11, paragraph 4 of the Revised Penal Code reads:

ART. 11. Justifying circumstances. –

...

4) Any person who, in order to avoid an evil or injury, does an act which causes damage to another provided that the following requisites are present:

First. That the evil sought to be avoided actually exists;

Second. That the injury feared be greater than that done to avoid it;

Third. That there be no other practical and less harmful means of preventing it.

The provision was taken from Article 8, paragraph 7 of the Spanish Penal Code, which reads:

ARTICULO 8.

7. El que para evitar un mal ejecuta un hecho que produzca dañ en la propiedad ajena, siempre que concurran las circumstancias siguientes:

Primera. Realidad del mal que se trata de evitar.

Segunda. Quesea mayor que el causado para evitarlo.

Tercera. Que no haya otro medio practicable y menos
perjudicial para impedirlo.

Article 11, paragraph 4 of the Revised Penal Code is not an accurate translation of the Spanish Penal Code. The phrase "an injury" does not appear in the first paragraph in the Spanish Penal Code. Neither does the word "injury" appear in the second subparagraph of the Spanish Penal Code.

The justification is what is referred to in the Spanish Penal Code as el estado de necessidad:

Es una situacion de peligro, actual o immediato para bienes, juridicamente protegides que solo puede ser evitada mediante, la lesion de bienes, tambien juridicamento protegidos, pertenecientes a otra personas.¹¹

The phrase "state of necessity" is of German origin. Countries which have embraced the classical theory of criminal law, like Italy, do not use the phrase. The justification refers to a situation of grave peril (un mal), actual or imminent (actual o imminente). The word propiedad covers diverse juridical rights (bienes juridicos) such as right to life, honor, the integrity of one’s body, and property (la vida, la integridad corporal, el pudor, el honor, bienes patrimoniales) belonging to another.¹²

It is indispensable that the state of necessity must not be brought about by the intentional provocation of the party invoking the same.¹³

A number of legal scholars in Europe are of the view that the act of the accused in a state of necessity is justifying circumstance; hence, lawful. Under Article 12, paragraph 4 of the Revised Penal Code, a "state of necessity" is a justifying circumstance. The accused does not commit a crime in legal contemplation; hence, is not criminally and civilly liable. Civil liability is borne by the person/persons benefited by the act of the accused. Crimes cannot exist unless the will concurs with the act, and when, says Blackstone, "a man intending to do a lawful act, does that which is unlawful, the deed and the will act separately" and there is no conjunction between them which is necessary to constitute a crime.¹⁴ Others are of the view that such act is a cause for exclusion from being meted a penalty; still others view such act as a case of excluding the accused from culpability.

According to Groizard, rights may be prejudiced by three general classes of acts, namely, (a) malicious and intentional acts; (b) negligent or reckless acts; (c) acts which are neither malicious, imprudent nor negligent but nevertheless cause damages.

Nuestra propiedad puede ser perjudicada, puede sufrir detrimentos por tres clases de hechos.1âwphi1 Por actos maliciosos, intencionales, encaminados directamente a causarnos daño; por actos que, sin llevar ese malicioso fin y por falta de prudencia, por culpa o temeridad del que los ejecuta, den ese mismo resultado, y por actos que, sin concurrir en su ejecucion un proposito doloso, ni culpa, ni negligencia sin embargo produzcan menocabo en nuestros bienes.¹⁵

The defense of a state of necessity is a justifying circumstance under Article 12, paragraph 4 of the Revised Penal Code. It is an affirmative defense that must be proved by the accused with clear and convincing evidence. By admitting causing the injuries and killing the victim, the accused must rely on the strength of his own evidence and not on the weakness of the evidence of the prosecution because if such evidence is weak but the accused fails to prove his defense, the evidence of the prosecution can no longer be disbelieved. Whether the accused acted under a state of necessity is a question of fact, which is addressed to the sound discretion of the trial court. The legal aphorism is that the findings of facts by the trial court, its calibration of the testimony of the witnesses of the parties and of the probative weight thereof as well as its conclusions based on its own findings are accorded by the appellate court high respect, if not conclusive effect, unless the trial court ignored, misconstrued or misapplied cogent facts and circumstances of substance which, if considered, will change the outcome of the case. We have meticulously reviewed the records and find no basis to deviate from the findings of the trial court that the appellant was the provocateur, the unlawful aggressor and the author of a deliberate and malicious act of shooting the victim at close range on the forehead.

First: When Norberta heard her husband and the appellant arguing with each other in the porch of their house, she went down from the balcony towards her husband and placed her hand on the latter’s shoulders. She was shocked when the appellant pulled out his handgun and deliberately shot the victim on the forehead, thus:

Q Now, you said that when your husband was about to go out again in order to see his trisicad and as he opened the door he saw Jesus Retubado near the door. What happened after that?

A He asked Jesus Retubado why Jesus Retubado chased him when he was driving his trisicad.

Q Now, as your husband was asking this question to the accused Jesus Retubado what was the distance to your husband at the time?

A Just very near to him.

Q And you to the accused at that very moment what was more or less your distance?

A About an armslength.

Q When your husband asked Jesus Retubado why the latter chased him while your husband was driving his trisicad what was the answer of Jesus Retubado, if any?

A My husband asked the accused Jesus Retubado what is his grudge to him and Jesus Retubado answered that it is not you who has a grudge to me but it is your son.

Q When Jesus Retubado uttered that statement what transpired after that?

A He immediately pointed his firearm that he was bringing (sic) to my husband Emmanuel Cañon.

Q By the way considering that you were just near to both your husband and the accused where did that firearm that you said was pointed by the accused to your husband come (sic) from?

A While the accused was standing in front of our door his hands were placed inside his T-shirt covered by his T-shirt.

Atty. Pepito:

We move to strike out the answer. It is not responsive, Your Honor. The question was, where did it come from?

COURT:

Let the answer stay in the record but let the witness answer again.

A From the hands of accused Jessie.

Fiscal Pansoy:

Q Now, just a while ago you were making a motion using your hand placed inside your T-shirt. Now, when you saw the firearm for the first time where did you saw (sic) the firearm for the first time where did the firearm come from as you saw it from the hands of the accused?

Atty. Pepito:

Already answered. It came from the hands of the accused.

Fiscal Pansoy:

I will reform.

Q Before you saw the firearm in the hands of the accused where did the firearm come from?

Atty. Pepito:

She is incompetent. We object.

COURT:

Reform the question.

Fiscal Pansoy:

Q Now, Mrs. Witness, before this question was asked to you as to where the firearm came from you were making a motion by placing your hands inside your shirt when you were only asked as to where the firearm came from?

A That was what the position of the accused when he was standing in front of our door and I do not know what was inside his T-shirt. I only know that he was carrying a firearm when it fired.

Q Now, when the accused pointed the firearm to your husband and fired the same more or less what was the distance between the accused and your husband at the very precise time when the firing was made?

A It was just very near because his hand did not bend. (Witness demonstrating by pointing to her forehead).

Q Now, more or less, describe to the Court the approximate distance between the firearm that was pointed to your husband and the forehead of your husband at the time when the firing was done?

A It touched the forehead of my husband.

Q That was the very time that you heard the gunburst?

A Yes.

Q When the accused fired the firearm that was carried by him, what happened to your husband?

A My husband fell down backward to the ground inside the house.

Q By the way, what was the flooring of your house where your husband fell backward to the ground?

A Cemented.

Q By the way considering that you were just very near to where the incident occurred can you describe the length of the firearm that was used by the accused in firing your husband?

A It was a short firearm about 6 inches.

Q Now, as your husband fell down to the floor where did the accused proceed and what did the accused do?

A He was just casually walking away as if nothing had happened.

Q Now, what did you do to your husband, if any, after he fell down to the floor?

A I have done nothing because I was somewhat shocked. I could not move because I was shocked.¹⁶

Second: After shooting the victim, the appellant fled from the situs criminis. He surrendered to the police authorities only on November 6, 1993, but failed to surrender the gun he used to kill the victim. The appellant’s claim that he placed the gun on the dining table before entering his bedroom to change his clothes is incredible. There is no evidence that the appellant informed the police authorities that he killed the victim in a state of necessity and that his brother, Edwin, threw the gun into the sea. The appellant never presented the police officer to whom he confessed that he killed the victim in a state of necessity.

Third: The appellant had the motive to shoot and kill the victim.1avvphi1 The victim ignored the appellant as the latter talked to him at the junction of Rizal and Gallardo streets, in the poblacion of Tuburan. The appellant was incensed at the effrontery of the victim, a mere pedicab driver. The appellant followed the victim to his house where the appellant again confronted him. The appellant insisted on talking with the victim’s son but the victim refused to wake up the latter. The appellant, exasperated at the victim’s intransigence, pulled out a gun from under his shirt and shot the victim on the forehead. It was impossible for the victim to survive. With the appellant’s admission that he shot the victim, the matter on whether he used his right or left hand to shoot the latter is inconsequential.

We agree with the contention of the Solicitor General that there is no treachery in the present case to qualify the crime to murder. To appreciate treachery, two (2) conditions must be present, namely, (a) the employment of the means of execution that give the person attacked no opportunity to defend himself or to retaliate, and (b) the means of execution were deliberately or consciously adopted.¹⁷ The prosecution failed to adduce an iota of evidence to support the confluence of the abovementioned conditions. Thus, the appellant is guilty only of homicide under Article 249 of the Revised Penal Code. Although the Information alleges that the appellant used an unlicensed firearm to shoot the victim, the prosecution failed to prove that the appellant had no license to possess the same. Hence, the aggravating circumstance of the use of an unlicensed firearm to commit homicide should not be appreciated against the appellant.

The appellant is entitled to the mitigating circumstance of voluntary surrender. He turned himself in to the police authorities prior to the issuance of any warrant for his arrest.

The trial court awarded ₱50,000.00 as civil indemnity¹⁸ to the heirs of the deceased. In addition, the heirs are entitled to moral damages in the amount of ₱50,000.00¹⁹ and the temperate damages in the amount of ₱25,000.00 since no sufficient proof of actual damages was offered.²⁰

WHEREFORE, the appealed judgment is AFFIRMED with MODIFICATION. The appellant Jesus G. Retubado alias "Jessie" is found GUILTY beyond reasonable doubt of homicide defined in and penalized by Article 249 of the Revised Penal Code and is hereby sentenced to suffer an indeterminate sentence of ten (10) years of prision mayor, in its medium period, as minimum, to fifteen (15) years of reclusion temporal, in its medium period, as maximum, and to pay the heirs of the victim, Emmanuel Cañon, ₱50,000.00 as civil indemnity; ₱50,000.00 as moral damages; and P25,000.00 as temperate damages.

SO ORDERED.

Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.ARTURO PUNZALAN, JR., Accused-Appellant. G.R. No. 199892 December 10, 2012 FIRST DIVISION

 

 

D E C I S I O N

LEONARDO-DE CASTRO, J.:

This is an appeal from the Decision ¹ dated April 29, 2011 of the Court of Appeals in CA-G.R. CR.-H.C. No. 02816 denying the appeal of appellant Arturo Punzalan, Jr. of the Decision² dated March 21, 2007 of the Regional Trial Court (RTC) of fba, Zambales and affirming his conviction for the complex crime of double murder with multiple attempted murder, with certain modifications on the civil liability imposed on appellant.³

In August 2002, Seaman 1st Class (SN1) Arnulfo Andal, SN1 Antonio Duclayna, SN1 Evelio Bacosa, SN1 Cesar Domingo, SN1 Danilo Cuya, and SN1 Erlinger Bundang were among the members of the Philippine Navy sent for schooling at the Naval Education and Training Command (NETC) at San Miguel, San Antonio, Zambales. On August 10, 2002, at around 5:00 or 6:00 in the afternoon, they went to the "All-in-One" Canteen to have some drink. Later, at around 10:00 in the evening, they transferred to a nearby videoke bar, "Aquarius," where they continued their drinking session. Shortly thereafter, a heated argument between SN1 Bacosa and appellant ensued regarding a flickering light bulb inside "Aquarius."⁴ When SN1 Bacosa suggested that the light be turned off ("Patayin ang ilaw"), appellant who must have misunderstood and misinterpreted SN1 Bacosa’s statement belligerently reacted asking, "Sinong papatayin?," thinking that SN1 Bacosa’s statement was directed at him.⁵ SN1 Cuya tried to pacify SN1 Bacosa and appellant, while SN1 Bundang apologized to appellant in behalf of SN1 Bacosa. However, appellant was still visibly angry, mumbling unintelligible words and pounding his fist on the table.⁶

To avoid further trouble, the navy personnel decided to leave "Aquarius" and return to the NETC camp. They walked in two’s, namely, SN1 Bundang and SN1 Domingo in the first group, followed by the group of SN1 Bacosa and SN1 Cuya, and SN1 Andal and SN1 Duclayna in the last group, with each group at one arm’s length distance from the other.⁷ Along the way, they passed by the NETC sentry gate which was being manned by SN1 Noel de Guzman and F1EN Alejandro Dimaala at that time.⁸ SN1 Andal and SN1 Duclayna even stopped by to give the sentries some barbecue before proceeding to follow their companions.⁹

Soon after the navy personnel passed by the sentry gate, SN1 De Guzman and F1EN Dimaala flagged down a rushing and zigzagging maroon Nissan van with plate number DRW 706. The sentries approached the van and recognized appellant, who was reeking of liquor, as the driver. Appellant angrily uttered, "kasi chief, gago ang mga ‘yan!," while pointing toward the direction of the navy personnel’s group. Even before he was given the go signal to proceed, appellant shifted gears and sped away while uttering, "papatayin ko ang mga ‘yan!"¹⁰ While F1EN Dimaala was writing the van’s plate number and details in the logbook, he suddenly heard a loud thud. Meanwhile, SN1 De Guzman saw how the van sped away towards the camp and suddenly swerved to the right hitting the group of the walking navy personnel prompting him to exclaim to F1EN Dimaala, "chief, binangga ang tropa!" SN1 De Guzman then asked permission to go to the scene of the incident and check on the navy personnel.¹¹

When they were hit by the vehicle from behind, SN1 Cuya and SN1 Bacosa were thrown away towards a grassy spot on the roadside. They momentarily lost consciousness.¹² When they came to, they saw SN1 Duclayna lying motionless on the ground.¹³ SN1 Cuya tried to resuscitate SN1 Duclayna, while SN1 Bacosa tried to chase the van.¹⁴

SN1 Domingo was not hit by the van as he was in the first group and was pushed away from the path of the speeding van. He was able to see the vehicle’s plate number. He also tried to chase the van with SN1 Bacosa but they turned around when the vehicle made a U-turn as they thought that it would come back for them. The vehicle, however, sped away again when other people started to arrive at the scene of the incident.¹⁵

SN1 De Guzman found SN1 Cuya administering cardiopulmonary resuscitation (CPR) on SN1 Duclayna. He also saw the misshapen body of SN1 Andal lying some 50 meters away, apparently dragged there when the speeding van hit SN1 Andal. SN1 Cuya instructed SN1 De Guzman to get an ambulance but the car of the officer on duty at that time arrived and they boarded SN1 Duclayna’s body to the vehicle to be brought to the hospital.¹⁶ The other injured navy personnel, namely, SN1 Cuya, SN1 Bacosa, and SN1 Bundang, were brought to the infirmary for treatment.¹⁷

Members of the local police soon arrived at the scene of the crime. Senior Police Officer (SPO) 1 Roberto Llorico, the police investigator, found the bloodied lifeless body of SN1 Andal lying on the side of the road. SPO1 Llorico was informed that appellant was the suspect. Fortunately, one of the responding officers was appellant’s neighbor and led SPO1 Llorico to appellant’s place where they found appellant standing near his gate. Appellant appeared drunk and was reeking of alcohol. They also saw the van parked inside the premises of appellant’s place. Its front bumper was damaged. When they asked appellant why he ran over the navy personnel, he simply answered that he was drunk. The police officers then invited appellant to the police station and brought the van with them.¹⁸

A post mortem examination was conducted on the bodies of SN1 Andal and SN1 Duclayna by Dr. Jericho Cordero of Camp Crame Medical Division. Dr. Cordero’s findings were that the injuries sustained by SN1 Andal were fatal and caused by a hard blunt object that hit his body. The force of the impact was such that the internal organs like the kidneys, mesentery and spleen were also fatally injured. SN1 Andal died of cardiorespiratory arrest as a result of massive blunt traumatic injuries to the head, thorax and abdomen. On the other hand, SN1 Duclayna sustained fatal injuries to the head and liver. The head and neck injuries were such that a lot of blood vessels were ruptured and the fractures were embedded in the brain. The laceration on the liver, also a mortal injury, was a blunt traumatic injury.¹⁹

As regards the other navy personnel, SN1 Cuya suffered lacerated wounds on the head and different parts of the body for which he was confined at the infirmary for about eighteen (18) days;²⁰ SN1 Bacosa sustained injuries on his knee and left hand and stayed in the infirmary for a day;²¹ and SN1 Bundang suffered injuries to his right foot.²²

Appellant was thereafter charged under an Information²³ which reads as follows:

That on or about the 10th day of August 2002, at about 11:00 o’clock in the evening, in Brgy. West Dirita, Municipality of San Antonio, Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, while driving and in control of a Nissan Van with plate no. DRW 706, did there and then wil[l]fully, unlawfully and feloniously, bump, overrun, smash and hit from behind with the use of the said van, the following persons: Antonio Duclayna, Arnulfo Andal, Evelio Bacosa, Danilo Cuya, Erlinger Bundang and Cesar Domingo, all members of the Philippine [N]avy then assigned at the Naval Education and Training Command in San Antonio, Zambales, thereby inflicting upon them the following physical injuries, to wit:

DANILO CUYA:

"Head Injury, grade 1 (Lacerated wound 5.0 cm, accipitoparietal area, (L) and lacerated wound, Lower lip) 2 to VA"

EVELIO BACOSA:

"Multiple abrasion, wrist, volar surface (L), 2nd digit, abrasion, dorsun, (L) foot"

ERLINGER BUNDANG:

"Abrasion, medial maleolus, (R)"

ARNULFO ANDAL:

"Head Injury, Grade IV; (Depressed Fracture, Frontal: Lacerated wounds, 8.0 cm 3.0 cm. forehead, and 5.0 cm parietal, (R);

Avulsion, medial aspect, upper arm to elbow, hip and enguinal area, (L);

Multiple abrasion, anterior and posterior chest, knees and (R) footsecondary to VA"

ANTONIO DUCLAYNA:

"Head Injury, Grade IV (Lacerated wound, Contusion, Hematoma (R) Parietal) secondary to VA"

which act of said accused directly caused the death of Arnulfo Andal and Antonio Duclayna, and in so far as Danilo Cuya, Evelio Bacosa and Erlinger Bundang were concerned, said accused performed all the acts of execution which would produce the crime of Murder as a consequence, but nevertheless, did not produce said crime by reason of cause/s independent of his will, that is, by the timely and able medical assistance rendered to said Danilo Cuya, Evelio Bacosa and Erlinger Bundang, which prevented their death, and finally as to Cesar Domingo, said accused commenced the commission of the acts constituting Murder directly by overt acts, but was not able to perform all the acts of execution by reason of some cause other than accused’s own desistance, that is due to the timely avoidance of the van driven by accused, and that the commission of the crimes was attended with treachery, evident premeditation, cruelty and use of a motor vehicle, and by deliberately and inhuman[ely] augmenting the suffering of the victim Arnulfo Andal, to the damage and prejudice of Danilo Cuya, Evelio Bacosa, Erlinger Bundang and Cesar Domingo and the family and heirs of the deceased Arnulfo Andang and Antonio Duclayna.

When arraigned, appellant maintained his innocence.²⁴

After pre-trial, trial ensued and the prosecution presented evidence to establish the facts stated above.

In his defense, appellant testified that in the evening of August 10, 2002, he was drinking with Marvin Acebeda and Romeo Eusantos at the "Aquarius" videoke bar. When he sang, the navy personnel who were also inside the bar laughed at him as he was out of tune. He then stood up, paid his bills and went out. After a while, Acebeda followed him and informed him that the navy personnel would like to make peace with him. He went back inside the bar with Acebedo and approached the navy personnel. When SN1 Bacosa appeared to reach out for appellant’s hand, appellant offered his hand but SN1 Bacosa suddenly punched appellant’s right ear. To avoid further altercation, appellant left the bar with Acebeda in tow. Appellant went home driving his van, with the spouses Romeo and Alicia Eusantos who hitched a ride as passengers. When they passed by the sentry, somebody threw stones at the van. When he alighted and inspected the vehicle, he saw that one of the headlights was broken. Thereafter, he saw SN1 Bacosa and another man approaching him so he went back inside the van but the duo boxed him repeatedly on his shoulder through the van’s open window. When he saw the four other navy personnel coming towards him, he accelerated the van. During the whole incident, Romeo was asleep as he was very drunk while Alicia was seated at the back of the van. Upon reaching appellant’s home, the spouses alighted from the van and proceeded to their place. After 20 minutes, police officers arrived at appellant’s house and told him that he bumped some people. Appellant went with the police officers to the police station where he was investigated and detained.²⁵

Appellant’s only other witness was Alicia Eusantos. She testified that she and her husband hitched a ride with appellant in the evening of August 10, 2002. She did not notice any unusual incident from the time they rode the vehicle until they alighted from it. She learned about the incident on the following day only when her statement was taken by the police.²⁶

After the parties have rested their respective cases, the RTC of Iba, Zambales found appellant guilty and rendered a Decision dated March 21, 2007 with the following dispositive portion:

IN VIEW THEREOF, accused ARTURO PUNZALAN, JR. is found GUILTY beyond reasonable doubt of the complex crime of Double Murder qualified by treachery with Attempted Murder attended by the aggravating circumstance of use of motor vehicle and is hereby sentenced to suffer the penalty of Reclusion Perpetua.

For the death of SN1 Antonio Duclayna and SN1 Arnulfo Andal, civil indemnity of ₱50,000.00 each is awarded to their heirs. This is in addition to the amount of moral damages at ₱50,000.00 each for the emotional and mental sufferings, plus ₱12,095.00 to the heirs of Duclayna representing actual damages.

Accused is likewise ordered to pay SN1 Evelio Bacosa, SN1 Cesar Domingo, SN1 Danilo Cuya and SN1 Erlinger Bundang ₱30,000.00 each or an aggregate amount of ₱120,000.00 as indemnity for their attempted murder.²⁷

Appellant filed an appeal with the Court of Appeals. In his brief,²⁸ appellant claimed that the trial court erred in not finding that he may not be held criminally liable as he merely acted in avoidance of greater evil or injury, a justifying circumstance under paragraph 4, Article 11 of the Revised Penal Code. His act of increasing his vehicle’s speed was reasonable and justified as he was being attacked by two men whose four companions were also approaching. He asserted that the attack against him by the two navy personnel constituted actual and imminent danger to his life and limb. The sight of the four approaching companions of his attackers "created in his mind a fear of greater evil," prompting him to speed up his vehicle to avoid a greater evil or injury to himself. According to appellant, if he accidentally hit the approaching navy men in the process, he could not be held criminally liable therefor. The instinct of self-preservation would make one feel that his own safety is of greater importance than that of another.²⁹

Appellant further faulted the trial court in appreciating the qualifying circumstance of treachery. He asserted that nothing in the records would show that he consciously or deliberately adopted the means of execution. More importantly, treachery was not properly alleged in the Information.³⁰

The Office of the Solicitor General (OSG), on behalf of the People of the Philippines, refuted the arguments of appellant and defended the correctness of the RTC Decision. In its brief,³¹ the OSG claimed that the trial court rightly rejected appellant’s defense of avoidance of greater evil or injury. Appellant’s version of the events did not conform to the physical evidence and it was not consistent with the testimony of his own witness.

The OSG also argued that treachery was appropriately appreciated by the trial court. The Information was written in a way that sufficiently described treachery where "the unsuspecting victims were walking towards their barracks and totally unprepared for the unexpected attack from behind."³²

After considering the respective arguments of the parties, the Court of Appeals rendered the assailed Decision dated April 29, 2011 with the following decretal portion:

WHEREFORE, the instant Appeal is Denied. The assailed Decision, dated March 21, 2007, of the Regional Trial Court of Iba, Zambales, Branch 69, in Criminal Case No. RTC-3492-I, is AFFIRMED with MODIFICATION, in that Accused-Appellant is hereby ordered to pay the heirs of SN1 Antonio Duclayna and SN1 Arnulfo Andal civil indemnity of Php75,000, moral damages of Php75,000, temperate damages of Php25,000 and exemplary damages of Php30,000. In addition to the foregoing damages, Accused-Appellant is as well held liable to pay the heirs of SN1 Andal the amount of Php2,172,270.21 to represent the amount of loss of earning capacity of SN1 Andal.

Accused-Appellant is likewise ordered to pay the surviving victims, SN1 Evelio Bacosa, SN1 Cesar Domingo, SN1 Danilo Cuya and SN1 Erlinger Bundang, moral and exemplary damages in the amount of Php40,000 and Php30,000, respectively. Award of temperate damages in the amount of Php25,000 is proper in favor of SN1 Bacosa, SN1 Cuya and SN1 Bundang for the unsubstantiated amount of pecuniary losses they suffered on account of the injuries they sustained. SN1 Cesar Domingo, however, is not entitled to temperate damages.³³

Hence, this appeal.

Both appellant and the OSG adopted the respective briefs they filed in the Court of Appeals.³⁴

Is appellant guilty of the complex crime of murder with frustrated murder?

After a thorough review of the records of this case and the arguments of the parties, this Court affirms appellant’s conviction.

Both the RTC and the Court of Appeals found the evidence presented and offered by the prosecution credible and that the "prosecution witnesses had overwhelmingly proved beyond reasonable doubt the culpability of the Accused-Appellant."³⁵ The Court of Appeals correctly observed that prosecution witnesses F1EN Dimaala and SN1 De Guzman "positively identified accused-appellant as the one who hit and ran over the victims."³⁶ The Court of Appeals further found:

The testimonies of the prosecution witnesses, taken together, inevitably showed the criminal intent of the Accused-Appellant to inflict harm on the victims. They testified on the incident in a clear, concise, corroborative, and straightforward manner. Thus, their testimonies must prevail over the testimony given by the Accused-Appellant which, on the other hand, was neither substantiated nor supported by any evidence.

The prosecution witnesses testified that they actually saw how Accused-Appellant ran over the victims who were walking inside the NETC camp on the night of August 10, 2002. Accused-Appellant, who was driving his van from behind, suddenly bumped and ran over the victims. The victims were thrown away, resulting in the instantaneous death of SN1 Duclayna and SN1 Andal and causing injuries to the other victims.

x x x x

Accused-Appellant’s version of the crime, upon which the justifying circumstance of avoidance of greater evil or injury is invoked, is baseless. This is because his assertions anent the existence of the evil which he sought to be avoided [did] not actually exist as [they] neither conformed to the evidence at hand nor [were] [they] consistent with the testimony of his own witness, Alicia Eusantos x x x.

x x x x

Accused-Appellant’s own witness, Alicia Eusantos, not only failed to corroborate his claim but also belied Accused-Appellant’s claim that he was attacked by the Philippine Navy personnel. Alicia Eusantos categorically stated that she did not witness any unusual incident in the evening of August 10, 2002 while on board the Nissan Urvan Van driven by Accused-Appellant while they were cruising the access road going to the NETC compound. Accused-Appellant’s claim, therefore, is more imaginary than real. The justifying circumstance of Avoidance of Greater Evil or Injury cannot be invoked by the Accused-Appellant as the alleged evil sought to be avoided does not actually exist.³⁷

Moreover, whether or not petitioner acted in avoidance of greater evil or injury is a question of fact. It is an issue which concerns doubt or difference arising as to the truth or the falsehood of alleged facts.³⁸ In this connection, this Court declared in Martinez v. Court of Appeals³⁹ :

[T]he well-entrenched rule is that findings of fact of the trial court in the ascertainment of the credibility of witnesses and the probative weight of the evidence on record affirmed, on appeal, by the CA are accorded high respect, if not conclusive effect, by the Court and in the absence of any justifiable reason to deviate from the said findings.

This Court has combed through the records of this case and found no reason to deviate from the findings of the trial and appellate courts. There is nothing that would indicate that the RTC and the Court of Appeals "ignored, misconstrued, misunderstood or misinterpreted cogent facts and circumstances of substance, which, if considered, will alter the outcome of the case."⁴⁰

Under paragraph 4, Article 11 of the Revised Penal Code, to successfully invoke avoidance of greater evil as a justifying circumstance, ⁴¹ the following requisites should be complied with:

(1) the evil sought to be avoided actually exists;

(2) the injury feared be greater than that done to avoid it; and

(3) there be no other practical and less harmful means of preventing it.

The RTC and the Court of Appeals rejected appellant’s self-serving and uncorroborated claim of avoidance of greater evil. The trial and appellate courts noted that even appellant’s own witness who was in the van with appellant at the time of the incident contradicted appellant’s claim. Thus, the RTC and the Court of Appeals concluded that the evil appellant claimed to avoid did not actually exist. This Court agrees.

Moreover, appellant failed to satisfy the third requisite that there be no other practical and less harmful means of preventing it. Under paragraph 4, Article 11 of the Revised Penal Code, infliction of damage or injury to another so that a greater evil or injury may not befall one’s self may be justified only if it is taken as a last resort and with the least possible prejudice to another. If there is another way to avoid the injury without causing damage or injury to another or, if there is no such other way but the damage to another may be minimized while avoiding an evil or injury to one’s self, then such course should be taken.

In this case, the road where the incident happened was wide, some 6 to 7 meters in width,⁴² and the place was well-lighted.⁴³ Both sides of the road were unobstructed by trees, plants or structures.⁴⁴ Appellant was a driver by occupation.⁴⁵ However, appellant himself testified that when he shifted to the second gear and immediately stepped on the accelerator upon seeing the four navy personnel approaching from in front of him,⁴⁶ he did not make any attempt to avoid hitting the approaching navy personnel even though he had enough space to do so. He simply sped away straight ahead, meeting the approaching navy personnel head on, totally unmindful if he might run them over.⁴⁷ He therefore miserably failed to resort to other practical and less harmful available means of preventing the evil or injury he claimed to be avoiding.

The appreciation of treachery as a circumstance that qualified the killing of SN1 Duclayna and SN1 Andal and the attempted killing of the others is also correct. This Court agrees with the following disquisition of the Court of Appeals:

We find that the RTC correctly appreciated the existence of treachery in the commission of the offense. Treachery qualifies the killing to murder. There is treachery when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and especially to ensure its execution, without risk to himself arising from any defense which the offended party might make. The elements of treachery are: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2) the means of execution was deliberate or consciously adopted.

Accused-Appellant’s act of running over the victims with his van from behind while the victims were walking inside the NETC camp was a clear act of treachery. The victims were not given any warning at all regarding the assault of the Accused-Appellant. The victims were surprised and were not able to prepare and repel the treacherous assault of Accused-Appellant. The prosecution witnesses testified that after they had flagged down Accused-Appellant’s van, the latter accelerated and upon reaching the middle of the road, it suddenly swerved to the right hitting the victims who were startled by the attack.

x x x x

A close review of the information would disclose that the qualifying circumstance of treachery was stated in ordinary and concise language and the said act was described in terms sufficient to enable a layman to know what offense is intended to be charged, and enables the court to pronounce proper judgment.

We quote pertinent portion of the information, which reads:

"x x x the said accused, with intent to kill, while driving and in control of a Nissan Van with plate No. DRW 706, did then and there willfully and feloniously, bump, overrun, smash and hit from behind with the use of said van, x x x."

Applying the Supreme Court’s discussion in People vs. Batin, citing the case of Balitaan v. Court of First Instance of Batangas, to wit:

"The main purpose of requiring the various elements of a crime to be set forth in an Information is to enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense. x x x.

It is often difficult to say what is a matter of evidence, as distinguished from facts necessary to be stated in order to render the information sufficiently certain to identify the offense. As a general rule, matters of evidence, as distinguished from facts essential to the description of the offense, need not be averred. For instance, it is not necessary to show on the face of an information for forgery in what manner a person is to be defrauded, as that is a matter of evidence at the trial.

We hold that the allegation of treachery in the Information is sufficient. Jurisprudence is replete with cases wherein we found the allegation of treachery sufficient without any further explanation as to the circumstances surrounding it."

Clearly, We find that the information is sufficient as it not merely indicated the term treachery therein but also described the act itself constituting treachery. Such statement, without a doubt, provided the supporting facts that constituted the offense, sufficiently alleging the qualifying circumstance of treachery when it pointed out the statement, "smash and hit from behind."⁴⁸ (Emphases supplied; citations omitted.)

The essence of treachery is the sudden and unexpected attack by the aggressor on unsuspecting victims, depriving the latter of any real chance to defend themselves, thereby ensuring its commission without risk to the aggressor, and without the slightest provocation on the part of the victims.⁴⁹ The six navy personnel were walking by the roadside, on their way back to their camp. They felt secure as they have just passed a sentry and were nearing their barracks. They were totally unaware of the threat to their life as their backs were turned against the direction where appellant’s speeding van came. They were therefore defenseless and posed no threat to appellant when appellant mowed them down with his van, killing two of them, injuring three others and one narrowly escaping injury or death. Beyond reasonable doubt, there was treachery in appellant’s act. This was sufficiently alleged in the Information which not only expressly mentioned treachery as one of the circumstances attending the crime but also described it in understandable language:

[T]he said accused, with intent to kill, while driving and in control of a Nissan Van with plate no. DRW 706, did then and there willfully, unlawfully and feloniously, bump, overrun, smash and hit from behind with the use of said van, the following persons: Antonio Duclayna, Arnulfo Andal, Evelio Bacosa, Danilo Cuya, Erlinger Bundang and Cesar Domingo, x x x.⁵⁰ (Emphasis supplied.)

Use of motor vehicle was also properly considered as an aggravating circumstance. Appellant deliberately used the van he was driving to pursue the victims. Upon catching up with them, appellant ran over them and mowed them down with the van, resulting to the death of SN1 Andal and SN1 Duclayna and injuries to the others.⁵¹ Thereafter, he continued to speed away from the scene of the incident. Without doubt, appellant used the van both as a means to commit a crime and to flee the scene of the crime after he committed the felonious act.

The felony committed by appellant as correctly found by the RTC and the Court of Appeals, double murder with multiple attempted murder, is a complex crime contemplated under Article 48 of the Revised Penal Code:

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

Appellant was animated by a single purpose, to kill the navy personnel, and committed a single act of stepping on the accelerator, swerving to the right side of the road ramming through the navy personnel, causing the death of SN1 Andal and SN1 Duclayna and, at the same time, constituting an attempt to kill SN1 Cuya, SN1 Bacosa, SN1 Bundang and SN1 Domingo.⁵² The crimes of murder and attempted murder are both grave felonies⁵³ as the law attaches an afflictive penalty to capital punishment (reclusion perpetua to death) for murder while attempted murder is punished by prision mayor,⁵⁴ an afflictive penalty.⁵⁵

Under Article 248 of the Revised Penal Code, as amended, murder is punishable by reclusion perpetua to death. Article 63⁵⁶ of the same Code provides that if the penalty prescribed is composed of two indivisible penalties, as in the instant case, and there is an aggravating circumstance the higher penalty should be imposed. Since use of vehicle can be considered as an ordinary aggravating circumstance, treachery, by itself, being sufficient to qualify the killing, the proper imposable penalty – the higher sanction – is death. However, in view of the enactment of Republic Act No. 9346,⁵⁷ prohibiting the imposition of the death penalty, the penalty for the killing of each of the two victims is reduced to reclusion perpetua without eligibility for parole.⁵⁸ The penalty of reclusion perpetua thus imposed by the Court of Appeals on appellant for the complex crime that he committed is correct.

The awards of ₱75,000.00 civil indemnity and ₱75,000.00 moral damages to the respective heirs of SN1 Andal and SN1 Duclayna are also proper. These awards, civil indemnity and moral damages, are mandatory without need of allegation and proof other than the death of the victim, owing to the fact of the commission of murder.⁵⁹

Moreover, in view of the presence of aggravating circumstances, namely the qualifying circumstance of treachery and the generic aggravating circumstance of use of motor vehicle, the award of ₱30,000.00 exemplary damages to the respective heirs of the deceased victims is also correct.⁶⁰ In addition, it cannot be denied that the heirs of the deceased victims suffered pecuniary loss although the exact amount was not proved with certainty.1âwphi1 Thus, the award of ₱25,000.00 temperate damages to the heirs of each deceased victim is appropriate.⁶¹

As it was proven that, at the time of his death, SN1 Andal had a monthly income of ₱13,245.55,⁶² the grant of ₱2,172,270.21 for loss of earning capacity is in order.⁶³

As to the surviving victims, SN1 Cuya, SN1 Bacosa, SN1 Bundang and SN1 Domingo, the Court of Appeals correctly granted each of them ₱40,000 moral damages for the physical suffering, fright, serious anxiety, moral shock, and similar injuries caused to them by the incident.⁶⁴ And as the crime was attended by aggravating circumstances, each of them was properly given ₱30,000 exemplary damages.⁶⁵

Finally, those who suffered injuries, namely, SN1 Cuya, SN1 Bacosa and SN1 Bundang, were correctly awarded ₱25,000 temperate damages each for the pecuniary loss they suffered for hospitalization and/or medication, although no receipts were shown to support said loss.⁶⁶

WHEREFORE, the appeal is hereby DENIED. The Decision dated April 29, 2011 of the Court of Appeals in CA-G.R. CR.-H.C. No. 02816 affirming the conviction of appellant Arturo Punzalan, Jr. for the complex crime of double murder with multiple attempted murder, imposing upon him the penalty of reclusion perpetua and ordering him to pay the following:

(a) To the respective heirs of SN1 Arnulfo Andal and SN1 Antonio Duclayna:

(i) ₱75,000.00 civil indemnity;

(ii) ₱75,000.00 moral damages;

(iii) ₱30,000.00 exemplary damages; and

(iv) ₱25,000.00 temperate damages;

(b) To the heirs of SN1 Andal, ₱2,172,270.21 for loss of earning capacity;

(c) To each of the surviving victims, SN1 Danilo Cuya, SN1 Evelio Bacosa, SN1 Erlinger Bundang and SN1 Cesar Domingo:

(i) ₱40,000.00 moral damages; and

(ii) ₱30,000.00 exemplary damages; and

(d) To SN1 Cuya, SN1 Bacosa and SN1 Bundang, ₱25,000.00 temperate damages each is AFFIRMED.

SO ORDERED.

⁴¹ Art. 11. Justifying circumstances. – The following do not incur any criminal liability:

x x x x

4. Any person who, in order to avoid an evil or injury, does an act which causes damage to another, provided that the following requisites are present:

First. That the evil sought to be avoided actually exists;

Second. That the injury feared be greater than that done to avoid it;

Third. That there be no other practical and less harmful means of preventing it.

⁵¹ See People v. Mallari, 452 Phil. 210, 222 (2003). This case has similarity to the case of appellant herein: Mallari deliberately used his truck in pursuing the victim and, upon catching up with the victim, Mallari hit him with the truck, as a result of which the victim died instantly. The Court found that the truck was the means used by Mallari to perpetrate the killing of his victim.

⁵² The crime committed against SN1 Cuya, SN1 Bacosa, SN1 Bundang and SN1 Domingo, is a case of multiple attempted murder because none of them was proven to have suffered a mortal wound from the incident. This Court stated in Palaganas v. People (G.R. No. 165483, September 12, 2006, 533 Phil. 169, 193 [2006]): "when the accused intended to kill his victim, as manifested by his use of a deadly weapon in his assault, and his victim sustained fatal or mortal wound /s but did not die because of timely medical assistance, the crime committed is frustrated murder or frustrated homicide depending on whether or not any of the qualifying circumstances under Article 249 of the Revised Penal Code are present. However, if the wound/s sustained by the victim in such a case were not fatal or mortal, then the crime committed is only attempted murder or attempted homicide. If there was no intent to kill on the part of the accused and the wound/s sustained by the victim were not fatal, the crime committed may be serious, less serious or slight physical injury."

⁵³ Art. 9. Grave felonies, less grave felonies, and light felonies. – Grave felonies are those to which the law attaches the capital punishment or penalties which in any of their periods are afflictive, in accordance with Article 25 of this Code.

⁵⁴ See Art. 248, Revised Penal Code defining and punishing the crime of murder, in relation to Art. 250 of the same Code.

⁵⁵ In fact, in this case, the murders of SN1 Andal and SN1 Duclayna are sufficient to constitute a complex crime as they are two grave felonies resulting from a single act.

⁵⁶ Art. 63. Rules for the application of indivisible penalties. – x x x. In all cases in which the law prescribes a penalty composed of two indivisible penalties the following rules shall be observed in the application thereof: 1. When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied. x x x.

⁵⁷ An Act Prohibiting the Imposition of the Death Penalty, signed into law on June 24, 2006.

⁵⁸ Sec. 3 of Republic Act No. 9346 provides that "persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole x x x."

⁶³ This amount has been computed using the following formula established in jurisprudence: Life Expectancy x (Gross Annual Income [GAI] less Living Expenses [50% GAI]) Where Life Expectancy = 2/3 x (80 – age of the deceased). Thus: Unearned income = (2/3 [80-39]) ([₱13,245.55 x 12] – [1/2 [₱13,245.55 x 12

= (2/3 [41]) (₱158,946.60 - ₱79,473.30)

= (2/3 [41]) (₱79,473.30)

= (27.3333335) (₱79,473.30)

= ₱2,172,270.21.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

NICOLAS VELASQUEZ and VICTOR VELASQUEZ, Petitioners
vsPEOPLE OF THE PHILIPPINES, Respondent SECOND DIVISION

G.R. No. 195021 March 15, 2017

 

 

D E C I S I O N

LEONEN, J.:

An accused who pleads a justifying circumstance under Article 11 of the Revised Penal Code¹ admits to the commission of acts, which would otherwise engender criminal liability. However, he asserts that he is justified in committing the acts. In the process of proving a justifying circumstance, the accused risks admitting the imputed acts, which may justify the existence of an offense were it not for the exculpating facts. Conviction follows if the evidence for the accused fails to prove the existence of justifying circumstances.

Through this Petition for Review on Certiorari² under Rule 45 of the Rules of Court, the accused petitioners pray that the assailed March 17, 2010 Decision³ and December 10, 2010 Resolution⁴ of the Court of Appeals in CA-G.R. CR. No. 31333 be reversed and set aside, and that they be absolved of any criminal liability.

The Court of Appeals' assailed rulings sustained the July 25, 2007 Decision⁵ of the Regional Trial Court, Branch 41, Dagupan City, which found petitioners guilty beyond reasonable doubt of attempted murder.

In an Information, petitioners Nicolas Velasquez (Nicolas) and Victor Velasquez (Victor), along with four (4) others -Felix Caballeda (Felix), Jojo Del Mundo (Jojo), Sonny Boy Velasquez (Sonny), and Ampong Ocumen (Ampong) - were charged with attempted murder under Article 248,⁶ in relation to Article 6,⁷ of the Revised Penal Code, as follows:

That on May 24, 2003 in the evening at Brgy. Palua, Mangaldan, Pangasinan and within the jurisdiction of this Honorable Court, the above named accused while armed with stones and wooden poles, conspiring, confederating and mutually helping one another, with intent to kill, with treachery and abuse of superior strength, did, then and there willfully, unlawfully and feloniously attack, maul and hit JESUS DEL MUNDO inflicting upon him injuries in the vital parts of his body, the said accused having thus commenced a felony directly by overt acts, but did not perform all the acts of execution which could have produced the crime of Murder but nevertheless did not produce it by reason of some causes or accident other than their own spontaneous desistance to his damage and prejudice.

Contrary to Article 248 in relation to Article 6 and 50 of the Revised Penal Code.⁸

All accused, except Ampong, who remained at large, pleaded not guilty upon arraignment.⁹ Trial then ensued.¹⁰

According to the prosecution, on May 24, 2003, at about 10:00 p.m., the spouses Jesus and Ana Del Mundo (Del Mundo Spouses) left their home to sleep in their nipa hut, which was about 100 meters away.¹¹ Arriving at the nipa hut, the Del Mundo Spouses saw Ampong and Nora Castillo (Nora) in the midst of having sex.¹² Aghast at what he perceived to be a defilement of his property, Jesus Del Mundo (Jesus) shouted invectives at Ampong and Nora, who both scampered away.¹³ Jesus decided to pursue Ampong and Nora, while Ana Del Mundo (Ana) left to fetch their son, who was then elsewhere.¹⁴ Jesus went to the house of Ampong's aunt, but neither Ampong nor Nora was there.¹⁵ He began making his way back home when he was blocked by Ampong and his fellow accused.¹⁶

Without provocation, petitioner Nicolas hit the left side of Jesus' forehead with a stone. Petitioner Victor also hit Jesus' left eyebrow with a stone.¹⁷ Accused Felix did the same, hitting Jesus above his left ear.¹⁸ Accused Sonny struck Jesus with a bamboo, hitting him at the back, below his right shoulder.¹⁹ Ampong punched Jesus on his left cheek. The accused then left Jesus on the ground, bloodied. Jesus crawled and hid behind blades of grass, fearing that the accused might return. He then got up and staggered his way back to their house.²⁰

Jesus testified on his own ordeal. In support of his version of the events, the prosecution also presented the testimony of Maria Teresita Viado (Maria Teresita). Maria Teresita was initially approached by Jesus' wife, Ana, when Jesus failed to immediately return home.²¹ She and Ana embarked on a search for Jesus but were separated.²² At the sound of a man being beaten, she hid behind some bamboos.²³ From that vantage point, she saw the accused mauling Jesus.²⁴ The prosecution noted that about four (4) or five (5) meters away was a lamp post, which illuminated the scene.²⁵

At the Del Mundo Spouses' residence, Maria Teresita recounted to them what she had witnessed (Jesus had managed to return home by then).²⁶ Ana and Maria Teresita then brought Jesus to Barangay Captain Pili ta Villanueva, who assisted them in bringing Jesus to the hospital.²⁷

After undergoing an x-ray examination, Jesus was found to have sustained a crack in his skull.²⁸ Dr. Jose D. De Guzman (Dr. De Guzman) issued a medico-legal certificate indicating the following findings:

x.x. Positive Alcoholic Breath

3 ems lacerated wound fronto-parietal area left

1 cm lacerated wound frontal area left

Abrasion back left multi linear approximately 20 cm

Abrasion shoulder left, confluent 4x10 cm

Depressed skull fracture parietal area left.

x.x.²⁹

Dr. De Guzman noted that Jesus' injuries required medical attention for four (4) to six (6) weeks.³⁰ Jesus was also advised to undergo surgery.³¹ He was, however, unable to avail of the required medical procedure due to shortage of funds.³²

The defense offered a different version of events.

According to the accused, in the evening of May 24, 2003, petitioner Nicolas was roused in his sleep by his wife, Mercedes Velasquez (Mercedes), as the nearby house of petitioner Victor was being stoned.³³

Nicolas made his way to Victor's place, where he saw Jesus hacking Victor's door. Several neighbors - the other accused - allegedly tried to pacify Jesus.³⁴ Jesus, who was supposedly inebriated, vented his ire upon Nicolas and the other accused, as well as on Mercedes.³⁵ The accused thus responded and countered Jesus' attacks, leading to his injuries.³⁶

In its July 25, 2007 Decision,³⁷ the Regional Tnal Court, Branch 41, Dagupan City found petitioners and Felix Caballeda guilty beyond reasonable doubt of attempted murder.³⁸ The court also found Sonny Boy Velasquez guilty beyond reasorable doubt of less serious physical injuries.³⁹ He was found to have hit Jesus on the back with a bamboo rod. Jojo Del Mundo was acquitted.⁴⁰ The case was archived with respect to Ampong, as he remained at large.⁴¹

The dispositive portion of its Decision read:

WHEREFORE, premises considered, judgment is hereby rendered finding accused NICOLAS VELASQUEZ, VICTOR VELASQUEZ and FELIX CABALLEDA guilty beyond reasonable doubt of the crime of Attempted Murder defined and penalized under Article 248 in relation to Art.ides 6, paragraph 3 and 51 of the Revised Penal Code, and pursuant to the law, sentences each of them to suffer on (sic) indeterminate penalty of four (4) years and one (1) day of Arrested (sic) Mayor in its maximum period as minimum to eight (8) years of Prison (sic) Correctional (sic) in its maximum period to Prison (sic) Mayor in its medium period as maximum and to pay proportionately to private complainant Jesus del Mundo the amount of Php55,000.00 as exemplary damages, and to pay the cost of suit.

The Court likewise finds the accused SONNY BOY VELASQUEZ [guilty] beyond reasonable doubt of the [crime] of Less Serious Physical Injuries defined and penalized under Article 265 of the Revised Penal Code and pursuant thereto, he is hereby sentenced to suffer the penalty of Arresto Mayor on one (1) month and one (1) day to six (6) months.

Accused JOJO DEL MUNDO is hereby acquitted on the ground of absence of evidence.

With respect to accused AMPONG OCUMEN, the case against him is archived without prejudice to its revival as soon as he is arrested and brought to the jurisdiction of this Court.⁴²

Petitioners and Felix Caballeda filed a motion for reconsideration, which the Regional Trial Court denied.⁴³

On petitioners' and Caballeda's appeal, the Court of Appeals found that petitioners and Caballeda were only liable for serious physical injuries because "first, intent to kill was not attendant inasmuch as the accused-appellants, despite their superiority in numbers and strength, left the victim alive and, second, none of [the] injuries or wounds inflicted upon the victim was fatal."⁴⁴ The Court of Appeals thus modified the sentence imposed on petitioners and Caballeda.

The dispositive portion of its assailed March 1 7, 2010 Decision⁴⁵ read:

WHEREFORE, premises considered, the July 25, 2007 Decision of Branch 41, Regional Trial Court of Dagupan City is hereby MODIFIED. Instead, accused-appellants are found guilty of Serious Physical Injuries and each of them is sentenced to suffer the penalty of imprisonment of six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prisi6n correccional as maximum.

SO ORDERED.⁴⁶ (Emphasis in the original)

Following the denial of their Motion for Reconsideration, petitioners filed the present Petition.⁴⁷ They insist on their version of events, particularly on how they and their co-accused allegedly merely acted in response to Jesus Del Mundo's aggressive behavior.

For resolution is the issue of whether petitioners may be held criminally liable for the physical harm inflicted on Jesus Del Mundo. More specifically, this Court is asked to determine whether there was sufficient evidence: first, to prove that justifying circumstances existed, and second, to convict the petitioners.

I

Petitioners' defense centers on their claim that they acted in defense of themselves, and also in defense of Mercedes, Nicolas' wife and Victor's mother. Thus, they invoke the first and second justifying circumstances under Article 11 of the Revised Penal Code:

ARTICLE 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.

A person invoking self-defense (or defense of a relative) admits to having inflicted harm upon another person - a potential criminal act under Title Eight (Crimes Against Persons) of the Revised Penal Code. However, he or she makes the additional, defensive contention that even as he or she may have inflicted harm, he or she nevertheless incurred no criminal liability as the looming danger upon his or her own person (or that of his or her relative) justified the infliction of protective harm to an erstwhile aggressor.

The accused's admission enables the prosecution to dispense with discharging its burden of proving that the accused performed acts, which would otherwise be the basis of criminal liability. All that remains to be established is whether the accused were justified in acting as he or she did. To this end, the accused's case must rise on its own merits:

It is settled that when an accused admits [harming] the victim but invokes self-defense to escape criminal liability, the accused assumes the burden to establish his plea by credible, clear and convincing evidence; otherwise, conviction would follow from his admission that he [harmed] the victim. Self-defense cannot be justifiably appreciated when uncorroborated by independent and competent evidence or when it is extremely doubtful by itself. Indeed, in invoking self-defense, the burden of evidence is shifted and the accused claiming self-defense must rely on the strength of his own evidence and not on the weakness of the prosecution.⁴⁸

To successfully invoke self-defense, an accused must establish: "(1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel such aggression; and (3) lack of sufficient provocation on the part of the person resorting to self-defense."⁴⁹ Defense of a relative under Article 11 (2) of the Revised Penal Code requires the same first two (2) requisites as self-defense and, in lieu of the third "in case the provocation was given by the person attacked, that the one making the defense had no part therein."⁵⁰

The first requisite - unlawful aggression - is the condition sine qua non of self-defense and defense of a relative:

At the heart of the claim of self-defense is the presence of an unlawful aggression committed against appellant. 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. Unlawful aggression refers to an attack amounting to actual or imminent threat to the life and limb of the person claiming self-defense.⁵¹

The second requisite - reasonable necessity of the means employed to prevent or repel the aggression - requires a reasonable proportionality between the unlawful aggression and the defensive response: "[t]he means employed by the person invoking self-defense contemplates a rational equivalence between the means of attack and the defense."⁵² This is a matter that depends on the circumstances:

Reasonable necessity of the means employed does not imply material commensurability between the means of attack and defense. What the law requires is rational equivalence, in the consideration of which will enter as principal factors the emergency, the imminent danger to which the person attacked is exposed, and the instinct, more than the reason, that moves or impels the defense, and the proportionateness thereof does not depend upon the harm done, but rests upon the imminent danger of such injury ... As WE stated in the case of People vs. Lara, in emergencies of this kind, human nature does not act upon processes of formal reason but in obedience to the instinct of self-preservation; and when it is apparent that a person has reasonably acted upon this instinct, it is the duty of the courts to sanction the act and hold the act irresponsible in law for the consequences.⁵³ (Citations omitted)

The third requisite - lack of sufficient provocation - requires the person mounting a defense to be reasonably blameless. He or she must not have antagonized or incited the attacker into launching an assault. This also requires a consideration of proportionality. As explained in People v. Boholst-Caballero,⁵⁴ "[p]rovocation is sufficient when it is proportionate to the aggression, that is, adequate enough to impel one to attack the person claiming self-defense."⁵⁵

II

We find petitioners' claims of self-defense and defense of their relative, Mercedes, to be sorely wanting.

Petitioners' entire defense rests on proof that it was Jesus who initiated an assault by barging into the premises of petitioners' residences, hacking Victor's door, and threatening physical harm upon petitioners and their companions. That is, that unlawful aggression originated from Jesus.

Contrary to what a successful averment of self-defense or defense of a relative requires, petitioners offered nothing more than a self-serving, uncorroborated claim that Jesus appeared out of nowhere to go berserk in the vicinity of their homes. They failed to present independent and credible proof to back up their assertions. The Regional Trial Court noted that it was highly dubious that Jesus would go all the way to petitioners' residences to initiate an attack for no apparent reason.⁵⁶

The remainder of petitioners' recollection of events strains credulity. They claim that Jesus launched an assault despite the presence of at least seven (7) antagonists: petitioners, Mercedes, and the four (4) other accused. They further assert that Jesus persisted on his assault despite being outnumbered, and also despite their and their co-accused's bodily efforts to restrain Jesus. His persistence was supposedly so likely to harm them that, to neutralize him, they had no other recourse but to hit him on the head with stones for at least three (3) times, and to hit him on the back with a bamboo rod, aside from dealing him with less severe blows.⁵⁷

As the Regional Trial Court noted, however:

The Court takes judicial notice of (the) big difference in the physical built of the private complainant and accused Victor Velasquez, Sonny Boy Velasquez, Felix Caballeda and Jojo del Mundo, private complainant is shorter in height and of smaller built than all the accused.

The said accused could have had easily held the private complainant, who was heavily drunk as they claim, and disarmed him without the need of hitting him.⁵⁸

The injuries which Jesus were reported to have sustained speak volumes:

3 ems lacerated wound fronto-parietal area left

1 cm lacerated wound frontal area left

Abrasion back left multi linear approximately 20 cm

Abrasion shoulder left, confluent 4x 10 cm

Depressed skull fracture parietal area left.⁵⁹

Even if it were to be granted that Jesus was the initial aggressor, the beating dealt to him by petitioners and their co-accused was still glaringly in excess of what would have sufficed to neutralize him. It was far from a reasonably necessary means to repel his supposed aggression. Petitioners thereby fail in satisfying the second requisite of self-defense and of defense of a relative.

III

In addition to their tale of self-defense, petitioners insist that the testimony of Maria Teresita is not worthy of trust because she parted ways with Ana while searching for Jesus.⁶⁰ They characterize Maria Teresita as the prosecution's "lone eyewitness."⁶¹ They make it appear that its entire case hinges on her. Thus, they theorize that with the shattering of her credibility comes the complete and utter ruin of the prosecution's case.⁶² Petitioners claim that Maria Teresita is the prosecution's lone eyewitness at the same time that they acknowledge Jesus' testimony, which they dismissed as laden with inconsistencies.⁶³

These contentions no longer merit consideration.

Petitioners' averment of justifying circumstances was dispensed with the need for even passing upon their assertions against Maria Teresita's and Jesus' testimonies.1âwphi1 Upon their mere invocation of self-defense and defense of a relative, they relieved the prosecution of its burden of proving the acts constitutive of the offense. They took upon themselves the burden of establishing their innocence, and cast their lot on their capacity to prove their own affirmative allegations.1âwphi1 Unfortunately for them, they failed.

Even if we were to extend them a measure of consideration, their contentions fail to impress.

Petitioners' primordial characterization of Maria Teresita as the "lone eyewitness," upon whose testimony the prosecution's case was to rise or fall, is plainly erroneous. Apart from her, Jesus testified about his own experience of being mauled by petitioners and their co-accused. Maria Teresita's testimony was only in support of what Jesus recounted.

Moreover, we fail to see how the mere fact of Maria Teresita's having parted ways with Ana while searching for Jesus diminishes her credibility. No extraordinary explanation is necessary for this. Their having proceeded separately may be accounted for simply by the wisdom of how independent searches enabled them to cover more ground in less time.

Regarding Jesus' recollection of events, petitioners' contention centers on Jesus' supposedly flawed recollection of who among the six (6) accused dealt him, which specific blow, and using which specific weapon.⁶⁴ These contentions are too trivial to even warrant an independent, point by point audit by this Court.

Jurisprudence is replete with clarifications that a witness' recollection of crime need not be foolproof: "Witnesses cannot be expected to recollect with exactitude every minute detail of an event. This is especially true when the witnesses testify as to facts which transpired in rapid succession, attended by flurry and excitement."⁶⁵ This is especially true of a victim's recollection of his or her own harrowing ordeal. One who has undergone a horrifying and traumatic experience "cannot be expected to mechanically keep and then give an accurate account"⁶⁶ of every minutiae.

Certainly, Jesus' supposed inconsistencies on the intricacies of who struck him which specific blow can be forgiven. The merit of Jesus' testimony does not depend on whether he has an extraordinary memory despite being hit on the head multiple times. Rather, it is in his credible narration of his entire ordeal, and how petitioners and their co-accused were its authors. On this, his testimony was unequivocal.

WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CR. No. 31333 is AFFIRMED.

 

Article 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.

3. Anyone who acts in defense of the person or rights of a stranger, provided that the first and second requisites mentioned in the first circumstance of this article are present and that the person defending be not induced by revenge, resentment, or other evil motive.

4. Any person who, in order to avoid an evil or injury, does an act which causes damage to another, provided that the following requisites are present:

First. That the evil sought to be avoided actually exists;

Second. That the injury feared be greater than that done to avoid it;

Third. That there be no other practical and less harmful means of preventing it.

5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office.

6. Any person who acts in obedience to an order issued by a superior for some lawful purpose.

² Rollo, pp. 24-40.

³ Id. at 49-59. The Decision was penned by Associate Justice Arcangelita M. Romilla-Lontok and concurred in by Associate Justices Portia Alino-Hormachuelos and Mario V. Lopez of the Second Division, Court of Appeals, Manila.

⁴ Id. at 60-62. The Resolution was penned by Associate Justice Mario V. Lopez and concurred in by Associate Justices Josefina Guevara-Salonga and Juan Q. Enriquez, Jr. of the Special Former Second Division, Court of Appeals, Manila.

⁵ No copy annexed to any of the parties' submissions.

⁶ REV. PEN. CODE, art. 248 provides:

Article 248. Murder. - Any person who, not falling within the provisions of article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion temporal in its maximum period to death, if committed with any of the following attendant circumstances:

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

2. In consideration of a price, reward or promise.

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive. fall of an airship, by means of motor vehicles, or with the use

of any other means involving great waste and ruin.

4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public calamity.

5. With evident premeditation.

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

⁷ REV. PEN. CODE, art. 6 provides:

Article 6. Consummated, Frustrated, 1md Attempted Felonies. - - Consummated felonies, as well as those which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.

There is an attempt 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 his own spontaneous desistance.

 

⁴⁸ Belbis v. People, 698 Phil. 706, 719 (2012) [Per J. Peralta, Third Division], citing People v. Tagana, 468 Phil. 784, 800 (2004) [Per J. Austria-Martinez, Second Division]; and Marzonia v. People, 525 Phil. 693, 702-703 (2006) [Per J. Quisumbing, Third Division].

⁴⁹ Id. at 719-720, citing People v. Silvano, 403 Phil. 598, 606 (2001) [Per J. De Leon, Jr., Second Division]; People v. Plaza, 403 Phil. 347, 357 (2001) [Per J. Quisumbing, Second Division]; Roca v. Court of Appeals, 403 Phil. 326, 335 (2001) [Per J. Quisumbing, Second Division].

⁵⁰ People v. Eduarte, 265 Phil. 304, 309 (I 990) [Per J. Guttierez, Jr., Third Division].

⁵¹ People v. Caratao, 451 Phil. 588, 602 (2003) [Per J. Azcuna, First Division], citing People v. Saure, 428 Phil. 916, 928 (2002) [Per J. Puno, First Division]; and People v. Enfectana, et al., 431 Phil. 64, 77 (2002) [Per J. Quisumbing, Second Division].

⁵² People v. Obordo, 431 Phil. 691, 712 (2002) [Per J. Kapunan, First Division], citing People vs. Encomienda, 150-B Phil. 419, 433 (I 972) [Per J. Makasiar, First Division].

⁵³ People v. Encomienda, 150-B Phil. 419, 433--434 (1972), citing People vs. Lara, 48 Phil. 153, 159 (1925) [Per J. Street, En Banc]; People vs. Paras, 9 Phil. 367, 370 (1907) [Per J. Makasiar, First Division].

 

 

 

SPO2 RUPERTO CABANLIG, Petitioners,
vs.SANDIGANBAYAN and OFFICE OF THE SPECIAL PROSECUTOR, Respondents. FIRST DIVISION G.R. No. 148431 July 28, 2005

 

 

D E C I S I O N

CARPIO, J.:

The Case

This petition for review¹ seeks to reverse the Decision² of the Fifth Division of the Sandiganbayan dated 11 May 1999 and Resolution³ 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 ₱50,000 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 Cabanlig’s 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 members 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 members 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

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 driver’s 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 Cabanlig’s left and at Mercado’s 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 Mercado’s M16 Armalite and jumped out of the jeep. Valino was able to grab Mercado’s 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 Valino’s act of taking away the M16 Armalite. Cabanlig acted immediately. Without issuing any warning of any sort, and with still 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 Valino’s 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 admitted 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 co-accused "salvaged" Valino. Cabanlig, Mercado, Abesamis, Padilla, and Esteban denied that they conspired to kill Valino.

The Sandiganbayan’s 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 admitted 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 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 (₱50,000.00) 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 Cabanlig’s 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 ₱ 50,000 TO THE HEIRS OF VALINO⁹

The Court’s Ruling

The petition has merit. We rule for Cabanlig’s acquittal.

Applicable Defense is Fulfillment of Duty

We first pass 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:

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 policeman’s 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 policeman’s 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 fugitive’s 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

While self-defense and performance of duty are two distinct justifying circumstances, self-defense 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 policeman’s use of what appears to be excessive force could be justified if there was imminent danger to the policeman’s 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 prisoner’s 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

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 Mercado’s 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 driver’s compartment were not aware that Valino had grabbed Mercado’s M16 Armalite. Abesamis and Padilla would have been unprepared for Valino’s 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. Valino’s 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. Valino’s act of grabbing the M16 Armalite clearly showed a hostile intention and even constituted unlawful aggression.

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. People²³:

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 duty-bound 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 Valino’s 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 enforcer’s overzealous performance of his duty could violate the rights of a citizen and worse cost the citizen’s 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 enforcer’s 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. Cabanlig’s shooting of Valino was an immediate and spontaneous reaction to 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 meters²⁹ 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 Valino’s mind.

At any rate, Valino was amply warned. Mercado shouted "hoy" when Valino grabbed the M16 Armalite. Although Cabanlig admitted that he did not hear Mercado shout "hoy", Mercado’s 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 Valino’s back. Indeed, two of the three gunshot wounds were on Valino’s 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 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 Report³⁴ 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 3rd 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 Report³⁵ 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.

Cause of Death:

Cerebral Hemorrhage Secondary To Gunshot Wound In The Head

The doctors who testified on the Autopsy³⁶ and Necropsy³⁷ Reports admitted 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 Valino’s 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 Valino’s head, Valino would have immediately fallen to the ground as the bullet from Cabanlig’s M16 Armalite almost shattered Valino’s 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 Valino’s head.

The most probable and logical scenario: Valino was somewhat facing the policemen when he was shot, hence, the entry wound on Valino’s 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 Valino’s chest should have raised doubt in Cabanlig’s 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 Valino’s hands with rope or some other sturdy material. Valino’s 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 administrative 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 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.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.

Chief Justice

Chairman

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ADOLFO S. AZCUNA

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

HILARIO G. DAVIDE, JR.

Chief Justice

The Lawphil Project - Arellano Law Foundation

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G.R. No. 148431 - SPO2 Ruperto Cabanlig, Petitioner,
vs.
Sandiganbayan and Office of the Special Prosecutor, Respondents.

DISSENTING OPINION

YNARES-SANTIAGO, J.:

Cabanlig was convicted of homicide based on the findings of the Sandiganbayan that he exceeded his duty when he shot Valino without warning.¹ Since Cabanlig saw Valino grab Mercado’s armalite rifle, the Sandiganbayan ruled that he had no right to shoot Valino without giving him the opportunity to surrender.² Citing the General Rules of Engagement of the PNP, the Sandiganbayan held that force and firearms shall be used as a last resort, and only when necessary and reasonable to subdue or overcome the clear and imminent danger posed, or the resistance being put up by the malefactor.³ It disregarded Cabanlig’s claim that Valino was turning around when shot as it was not in accordance with the wounds suffered by Valino.⁴ It also found that Valino was shot at close range, not more than three feet, because of the tattooing around the entrance of the gunshot wound on the head.⁵

The ponencia however, finds that Cabanlig was justified in killing Valino because he placed the lives of the policemen in grave danger when he grabbed the armalite rifle of Mercado.⁶ It declares that the policemen would have been sitting ducks inside the jeep had Cabanlig not immediately shot Valino.⁷ Cabanlig was reacting to imminent danger⁸ and a warning from him would have been pointless and would have cost their lives.⁹ It points out the Valino was sufficiently warned when Mercado shouted "hoy" when his rifle was grabbed.¹⁰ Also, Cabanlig fired one shot first followed by four more.¹¹ The ponencia declares that at one point Valino was facing the police officers,¹² as shown by the location of his chest wound,¹³ thus warranting a quick response.

With due respect, we cannot subscribe to the conclusion that the policemen would have been "sitting ducks" or easy targets if Cabanlig did not immediately gun down Valino. It is well to note that Valino who was a suspected robber was being escorted by five heavily armed policemen on their way to retrieve the stolen items consisting of a flower vase and a clock. Three of the policemen were armed with M-16 rifles while two were equipped with .38 pistols.¹⁴

The conclusion that warning Valino would cost the lives of the policemen lacks basis and purely speculative. There were five police officers guarding Valino and four of them were armed with high powered guns. The five policemen were up against a lone malefactor who was not even shown to be adept in handling an M-16 armalite rifle. Besides, Cabanlig was aware when Valino grabbed Mercado’s rifle. He was thus prepared to repel or overcome any threat posed by Valino. As the records show, Valino ran away from the vehicle after he grabbed the armalite rifle. There was no evidence that it was aimed at the police officers hence there is no imminent danger to speak of.

We take exception to the claim that Valino faced the police officers during the encounter. Dr. Marcelo Gallardo, Jr. testified that the chest wound did not indicate that Valino faced the police officers during the shooting. On the contrary, he said that the assailant was either at the back or the side of the victim, thus:

PROS. TABANGUIL

Q. Doctor, in your findings there are three (3) gunshots wound, numbered 1, 2 and 3, is that correct?

A. Yes, sir.

Q. Now, we go to gunshot wound no. 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." Now, will you demonstrate to the Honorable court where is this wound located?

A. The wound of entrance is located at the top of the head. In this part of the head.

PJ GARCHITORENA

Witness is indicating a position above his left temple of his forehead.

PROS TABANGUIL

Q: In that wound, will you please tell the Honorable Court the position of the assailant in relation to the victim?

A: The assailant must be at the back of the victim in order to produce the entrance at the back of the head, sir.

Q: Would you consider that wound a fatal wound?

A: Yes, sir.

Q: Now, Gunshot Wound No. 2: 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 2x2 cms in size." Will you demonstrate to the Court the location of this wound, the entrance and the exit?

A: The wound of entrance is located here below the clavicle then made an exit wound on his right side, right axilla.

PROS TABAGUIL

Witness demonstrating using his body as a demonstration, your Honor.

Q: Now, in this wound, what would be the position of the assailant in relation to the victim?

A: The assailant must be on the left side of the victim in order to produce that wound, sir.

PJ GARCHITORENA

Q: Before it exit is that the front part of the armpit or the rare part of the armpit?

A: In the middle, sir.

Q: But the way you are pointing it, it seems to be closer to the chest rather than the shoulder?

A: It is a little bet front of the oxilla, your Honor.

PROS TABANGUIL

Q: So in that case the assailant must be a little bet backward to the victim?

A: No, on the lateral side.

Q: "Gunshot Wound No. 3, 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 was recovered in the liver tissues. No wound of exit." Will you demonstrate to this Honorable Court where is that wound?

...

PROS TABANGUIL

Q: In the case of this wound no. 3, what would be the position of the assailant to the victim?

A: The assailant must have been at the left side but a little bit at the back.

Q. Now, these wounds, 2 and 3, would you consider these wounds a fatal wound?

A: Yes, sir.¹⁵

...

ATTY. JACOBA

Q: You stated also Doctor, that the possible position of the assailant as regards gunshot wound no. 1 was behind the victim a little to the left, is that correct?

A: No, I did not say that it was a little to the left. Its just at the back.¹⁶

We concede that the police officers were in danger after Valino grabbed the rifle although the same was not imminent. It appears that Valino was running away from the jeep and there is no proof that he, even at one point, faced the police officers and aimed his rifle towards them. Even Cabanlig testified that:

Q: When you fired the first shot, what was the position of Jimmy Baleno?

A: He was running away from us, sir and he was in a position of about to rotate "umikot".

JUSTICE SANDOVAL:

Q: What do you mean by "umikot"?

A: He would be turning towards my direction, sir.

Q: But he was not able to face you, is that correct?

A: Yes, sir.

PJ:

Q: Was he able to face you?

A: No, sir.¹⁷

SPO2 Mendoza’s testimony that he warned Valino by shouting "hoy" deserves no consideration. Assuming that it was uttered, there is no proof that it was heard by Valino. It appears that it was more of a reflex reaction from Mendoza when his rifle was grabbed rather than a warning issued to Valino.

The testimony of Mendoza is incredible, if not absurd to pretend to be unaware of what transpired after his gun was allegedly taken by Valino, or that there appears to be no struggle between him and Valino when the latter attempted to grab his weapon. As a police officer, Mendoza offered no resistance when Valino stole his gun. Thus:

Atty. Jacoba:

Q: But when Jimmy Valino grabbed your gun, was it with the left or right hand?

A: I do not know which hand he used, sir.

Q: Do you remember if you were pushed by Jimmy Valino before grabbing your gun?

A: No, sir.

Q: So Jimmy Valino was able to jump out of the vehicle with your gun?

A: Yes, Your Honor.

Q: Did he point the gun towards your direction?

A: I did not notice, sir.

Q: Did you notice if Jimmy Valino was trying to cock the gun?

A: I did not notice, sir.

Q: Did you notice when Ruperto Cabanlig fired the first shot on Jimmy Valino whether Jimmy Valino was facing the vehicle or his back was towards the vehicle?

A: I did not notice whether he was facing us, sir.¹⁸

...

Q: Now, did you notice what was the position of Jimmy Valino when he was first shot by Ruperto Cabanlig, was he running away from the jeep or was he facing the jeep?

A: I do not know what his position, Your Honor.¹⁹

That Cabanlig first fired a shot followed by four more shots could not be considered sufficient warning. The succession of the shots was a mere one or two seconds thus giving no ample time for Valino to surrender. Besides, as testified to by Cabanlig, he was giving no warning at all because the shots were directly aimed at Valino.

ATTY. FAJARDO:

Q: Could you tell more details on that how this incident happened?

A: We had just crossed the PNR bridge, the road was in a very bad way at that time, the driver was driving slowly and that is where he took the gun away from Mercado and jumped out of the vehicle and that is the time I was compelled to shoot him.

Q: How many shots did you fire?

A: Five (5) shots, sir.

Q: What weapon?

A: M-16, sir.

Q: The first five (5) shots that you fired where did you aim?

A: It was toward him, sir.

Q: And you were not sure whether you hit him or not or you do not know where you hit him?

A: I am not sure exactly where I had hit him, sir but I got the impression that he was turning around to shoot me (witness making a gesture as if somebody is holding a firearm) so I fired some more shots at him.

JUSTICE SANDOVAL:

Q: What was the weapon grabbed by Baleno?

A: M-16, Your Honor.

Q: How about your other police companions what kind of weapons were they carrying at that time?

A: Abesamis and Esteban were carrying 38 caliber, Mercado had an M-16 rifle and the rest of us were carrying M-16. Your Honor.

ATTY. FAJARDO:

Q: You said that you fired several shots, how did you fire, did you aim it to the victim?

A: Yes, sir the second shot was aimed at him, sir.

JUSTICE SANDOVAL:

Q: Why did you aim at him?

A: Because he had grabbed the weapon sir, and he could kill anyone of us.²⁰

The sequence of events adverted to by the ponencia is not supported by the records. Since the examining physician could not even determine which of the three wounds was inflicted first, there is no basis to conclude that this is "the most probable and logical scenario" –

"Valino was somewhat facing the policemen when he was shot, hence, the entry wound on Valino’s 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 Valino’s chest should have raised doubt in Cabanlig’s favor."²¹

As Dr. Gallardo had testified:

ATTY. JACOBA

Q: Doctor, you are not in a position to state which of these wounds were inflected first?

A: I am not sure, sir.

Q: In other words you cannot tell which wound was inflected first?

A: No sir.²²

In Escara v. People,²³ we declared that factual questions are not reviewable by the Supreme Court in a petition for review on certiorari under Rule 45 of the Revised Rules of Civil Procedure. There is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. In appeals to this Court from the Sandiganbayan only questions of law may be raised, not issues of fact.

The issues raised by petitioner, to wit: whether or not he issued warnings before shooting Valino and whether the latter was facing him when shot, are issues of fact and not of law.

It is an established doctrine of long standing that factual findings of the trial court on the credibility of witnesses are accorded great weight and respect and will not be disturbed on appeal. The trial court is in a unique position of having observed that elusive and incommunicable evidence of the witnesses’ deportment on the stand while testifying, which opportunity is denied to the appellate courts. Only the trial judge can observe the furtive glance, blush of conscious shame, hesitation, flippant or sneering tone, calmness, sigh or the scant or full realization of an oath – all of which are useful for an accurate determination of a witness’ honesty and sincerity.²⁴

In People v. Lagata,²⁵ we held that:

While custodians of prisoners should take all care to avoid the latter's escape, only absolute necessity would authorize them to fire against them. Theirs is the burden of proof as to such necessity. The summary liquidation of prisoners, under flimsy pretexts of attempts of escape, which has been and is being practiced in dictatorial systems of government, has always been and is shocking to the universal conscience of humanity.

Human life is valuable, albeit, sacred. Cain has been the object of unrelentless curse for centuries and millennia and his name will always be remembered in shame as long as there are human generations able to read the Genesis. Twenty centuries of Cristianity have not been enough to make less imperative the admonition that "Thou shalt not kill," uttered by the greatest pundit and prophet of Israel. Laws, constitutions, world charters have been written to protect human life. Still it is imperative that all men be imbued with the spirit of the Sermon on the Mount that the words of the gospels be translated into reality, and that their meaning fill all horizons with the eternal aroma of encyclic love of mankind. [Emphasis supplied]²⁶

Cabanlig admitting killing Valino. Therefore, the burden of proving that the killing was reasonable and necessary rests on him. To our mind, Cabanlig failed to discharge this burden. He also failed to convincingly show that there was a misapprehension of facts by the Sandiganbayan, hence, its findings must be accorded respect and weight.

ACCORDINGLY, I vote to DISMISS the petition and AFFIRM the decision of the Sandiganbayan finding Cabanlig guilty of homicide.

CONSUELO YNARES-SANTIAGO

Associate Justice

 

PEOPLE OF THE PHILIPPINES, appellee,
vs.MARIVIC GENOSA, appellant. EN BANC

G.R. No. 135981             January 15, 2004

 

D E C I S I O N

PANGANIBAN, J.:

Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the "battered woman syndrome" (BWS), which allegedly constitutes self-defense. Under the proven facts, however, she is not entitled to complete exoneration because there was no unlawful aggression -- no immediate and unexpected attack on her by her batterer-husband at the time she shot him.

Absent unlawful aggression, there can be no self-defense, complete or incomplete.

But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of cumulative provocation that broke down her psychological resistance and self-control. This "psychological paralysis" she suffered diminished her will power, thereby entitling her to the mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.

In addition, appellant should also be credited with the extenuating circumstance of having acted upon an impulse so powerful as to have naturally produced passion and obfuscation. The acute battering she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she was eight months pregnant with their child, overwhelmed her and put her in the aforesaid emotional and mental state, which overcame her reason and impelled her to vindicate her life and her unborn child's.

Considering the presence of these two mitigating circumstances arising from BWS, as well as the benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody on parole, because she has already served the minimum period of her penalty while under detention during the pendency of this case.

The Case

For automatic review before this Court is the September 25, 1998 Decision¹ of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond reasonable doubt of parricide. The decretal portion of the Decision reads:

"WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a generic aggravating circumstance and none of mitigating circumstance, hereby sentences the accused with the penalty of DEATH.

"The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine currency as moral damages."²

The Information³ charged appellant with parricide as follows:

"That on or about the 15^th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused had provided herself for the purpose, [causing] the following wounds, to wit:

'Cadaveric spasm.

'Body on the 2^nd stage of decomposition.

'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its sockets and tongue slightly protrudes out of the mouth.

'Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in] laceration of the brain, spontaneous rupture of the blood vessels on the posterior surface of the brain, laceration of the dura and meningeal vessels producing severe intracranial hemorrhage.

'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis.

'Abdomen distended w/ gas. Trunk bloated.'

which caused his death."⁴

With the assistance of her counsel,⁵ appellant pleaded not guilty during her arraignment on March 3, 1997.⁶ In due course, she was tried for and convicted of parricide.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in this wise:

"Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City. Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For a time, Ben's younger brother, Alex, and his wife lived with them too. Sometime in 1995, however, appellant and Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived with their two children, namely: John Marben and Earl Pierre.

"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary. They each had two (2) bottles of beer before heading home. Arturo would pass Ben's house before reaching his. When they arrived at the house of Ben, he found out that appellant had gone to Isabel, Leyte to look for him. Ben went inside his house, while Arturo went to a store across it, waiting until 9:00 in the evening for the masiao runner to place a bet. Arturo did not see appellant arrive but on his way home passing the side of the Genosas' rented house, he heard her say 'I won't hesitate to kill you' to which Ben replied 'Why kill me when I am innocent?' That was the last time Arturo saw Ben alive. Arturo also noticed that since then, the Genosas' rented house appeared uninhabited and was always closed.

"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living about fifty (50) meters from her house, to look after her pig because she was going to Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie Dayandayan who unfortunately had no money to buy it.

"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc when he saw appellant going out of their house with her two kids in tow, each one carrying a bag, locking the gate and taking her children to the waiting area where he was. Joseph lived about fifty (50) meters behind the Genosas' rented house. Joseph, appellant and her children rode the same bus to Ormoc. They had no conversation as Joseph noticed that appellant did not want to talk to him.

"On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating from his house being rented by Ben and appellant. Steban went there to find out the cause of the stench but the house was locked from the inside. Since he did not have a duplicate key with him, Steban destroyed the gate padlock with a borrowed steel saw. He was able to get inside through the kitchen door but only after destroying a window to reach a hook that locked it. Alone, Steban went inside the unlocked bedroom where the offensive smell was coming from. There, he saw the lifeless body of Ben lying on his side on the bed covered with a blanket. He was only in his briefs with injuries at the back of his head. Seeing this, Steban went out of the house and sent word to the mother of Ben about his son's misfortune. Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as that of [her] son.

"Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police station at Isabel, Leyte, received a report regarding the foul smell at the Genosas' rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house and went inside the bedroom where they found the dead body of Ben lying on his side wrapped with a bedsheet. There was blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in one corner at the side of an aparador a metal pipe about two (2) meters from where Ben was, leaning against a wall. The metal pipe measured three (3) feet and six (6) inches long with a diameter of one and half (1 1/2) inches. It had an open end without a stop valve with a red stain at one end. The bedroom was not in disarray.

"About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at the back of the house before the postmortem examination was conducted by Dr. Cerillo in the presence of the police. A municipal health officer at Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo found that Ben had been dead for two to three days and his body was already decomposing. The postmortem examination of Dr. Cerillo yielded the findings quoted in the Information for parricide later filed against appellant. She concluded that the cause of Ben's death was 'cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed fracture of the occipital [bone].'

"Appellant admitted killing Ben. She testified that going home after work on November 15, 1995, she got worried that her husband who was not home yet might have gone gambling since it was a payday. With her cousin Ecel Araño, appellant went to look for Ben at the marketplace and taverns at Isabel, Leyte but did not find him there. They found Ben drunk upon their return at the Genosas' house. Ecel went home despite appellant's request for her to sleep in their house.

"Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She allegedly ignored him and instead attended to their children who were doing their homework. Apparently disappointed with her reaction, Ben switched off the light and, with the use of a chopping knife, cut the television antenna or wire to keep her from watching television. According to appellant, Ben was about to attack her so she ran to the bedroom, but he got hold of her hands and whirled her around. She fell on the side of the bed and screamed for help. Ben left. At this point, appellant packed his clothes because she wanted him to leave. Seeing his packed clothes upon his return home, Ben allegedly flew into a rage, dragged appellant outside of the bedroom towards a drawer holding her by the neck, and told her 'You might as well be killed so nobody would nag me.' Appellant testified that she was aware that there was a gun inside the drawer but since Ben did not have the key to it, he got a three-inch long blade cutter from his wallet. She however, 'smashed' the arm of Ben with a pipe, causing him to drop the blade and his wallet. Appellant then 'smashed' Ben at his nape with the pipe as he was about to pick up the blade and his wallet. She thereafter ran inside the bedroom.

"Appellant, however, insisted that she ended the life of her husband by shooting him. She supposedly 'distorted' the drawer where the gun was and shot Ben. He did not die on the spot, though, but in the bedroom."⁷ (Citations omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:

"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor of Science in Business Administration, and was working, at the time of her husband's death, as a Secretary to the Port Managers in Ormoc City. The couple had three (3) children: John Marben, Earl Pierre and Marie Bianca.

"2. Marivic and Ben had known each other since elementary school; they were neighbors in Bilwang; they were classmates; and they were third degree cousins. Both sets of parents were against their relationship, but Ben was persistent and tried to stop other suitors from courting her. Their closeness developed as he was her constant partner at fiestas.

"3. After their marriage, they lived first in the home of Ben's parents, together with Ben's brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben 'lived happily'. But apparently, soon thereafter, the couple would quarrel often and their fights would become violent.

"4. Ben's brother, Alex, testified for the prosecution that he could not remember when Ben and Marivic married. He said that when Ben and Marivic quarreled, generally when Ben would come home drunk, Marivic would inflict injuries on him. He said that in one incident in 1993 he saw Marivic holding a kitchen knife after Ben had shouted for help as his left hand was covered with blood. Marivic left the house but after a week, she returned apparently having asked for Ben's forgiveness. In another incident in May 22, 1994, early morning, Alex and his father apparently rushed to Ben's aid again and saw blood from Ben's forehead and Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently again asked for Ben's forgiveness.

"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and Marivic married in '1986 or 1985 more or less here in Fatima, Ormoc City.' She said as the marriage went along, Marivic became 'already very demanding. Mrs. Iluminada Genosa said that after the birth of Marivic's two sons, there were 'three (3) misunderstandings.' The first was when Marivic stabbed Ben with a table knife through his left arm; the second incident was on November 15, 1994, when Marivic struck Ben on the forehead 'using a sharp instrument until the eye was also affected. It was wounded and also the ear' and her husband went to Ben to help; and the third incident was in 1995 when the couple had already transferred to the house in Bilwang and she saw that Ben's hand was plastered as 'the bone cracked.'

"Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.

"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we collected our salary, we went to the cock-fighting place of ISCO.' They stayed there for three (3) hours, after which they went to 'Uniloks' and drank beer – allegedly only two (2) bottles each. After drinking they bought barbeque and went to the Genosa residence. Marivic was not there. He stayed a while talking with Ben, after which he went across the road to wait 'for the runner and the usher of the masiao game because during that time, the hearing on masiao numbers was rampant. I was waiting for the ushers and runners so that I can place my bet.' On his way home at about 9:00 in the evening, he heard the Genosas arguing. They were quarreling loudly. Outside their house was one 'Fredo' who is used by Ben to feed his fighting cocks. Basobas' testimony on the root of the quarrel, conveniently overheard by him was Marivic saying 'I will never hesitate to kill you', whilst Ben replied 'Why kill me when I am innocent.' Basobas thought they were joking.

"He did not hear them quarreling while he was across the road from the Genosa residence. Basobas admitted that he and Ben were always at the cockpits every Saturday and Sunday. He claims that he once told Ben 'before when he was stricken with a bottle by Marivic Genosa' that he should leave her and that Ben would always take her back after she would leave him 'so many times'.

"Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been quarreling. He said Ben 'even had a wound' on the right forehead. He had known the couple for only one (1) year.

"6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a habitual drinker. She said he provoked her, he would slap her, sometimes he would pin her down on the bed, and sometimes beat her.

"These incidents happened several times and she would often run home to her parents, but Ben would follow her and seek her out, promising to change and would ask for her forgiveness. She said after she would be beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries inflicted upon her by Ben into their reports. Marivic said Ben would beat her or quarrel with her every time he was drunk, at least three times a week.

"7. In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse and violence she received at the hands of Ben.

'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting for help and through the open jalousies, he saw the spouses 'grappling with each other'. Ben had Marivic in a choke hold. He did not do anything, but had come voluntarily to testify. (Please note this was the same night as that testified to by Arturo Busabos.⁸ )

'7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that he heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped through the window of his hut which is located beside the Genosa house and saw 'the spouses grappling with each other then Ben Genosa was holding with his both hands the neck of the accused, Marivic Genosa'. He said after a while, Marivic was able to extricate he[r]self and enter the room of the children. After that, he went back to work as he was to go fishing that evening. He returned at 8:00 the next morning. (Again, please note that this was the same night as that testified to by Arturo Basobas).

'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel, Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece and he knew them to be living together for 13 or 14 years. He said the couple was always quarreling. Marivic confided in him that Ben would pawn items and then would use the money to gamble. One time, he went to their house and they were quarreling. Ben was so angry, but would be pacified 'if somebody would come.' He testified that while Ben was alive 'he used to gamble and when he became drunk, he would go to our house and he will say, 'Teody' because that was what he used to call me, 'mokimas ta,' which means 'let's go and look for a whore.' Mr. Sarabia further testified that Ben 'would box his wife and I would see bruises and one time she ran to me, I noticed a wound (the witness pointed to his right breast) as according to her a knife was stricken to her.' Mr. Sarabia also said that once he saw Ben had been injured too. He said he voluntarily testified only that morning.

'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the afternoon of November 15, 1995, Marivic went to her house and asked her help to look for Ben. They searched in the market place, several taverns and some other places, but could not find him. She accompanied Marivic home. Marivic wanted her to sleep with her in the Genosa house 'because she might be battered by her husband.' When they got to the Genosa house at about 7:00 in the evening, Miss Arano said that 'her husband was already there and was drunk.' Miss Arano knew he was drunk 'because of his staggering walking and I can also detect his face.' Marivic entered the house and she heard them quarrel noisily. (Again, please note that this is the same night as that testified to by Arturo Basobas) Miss Arano testified that this was not the first time Marivic had asked her to sleep in the house as Marivic would be afraid every time her husband would come home drunk. At one time when she did sleep over, she was awakened at 10:00 in the evening when Ben arrived because the couple 'were very noisy in the sala and I had heard something was broken like a vase.' She said Marivic ran into her room and they locked the door. When Ben couldn't get in he got a chair and a knife and 'showed us the knife through the window grill and he scared us.' She said that Marivic shouted for help, but no one came. On cross-examination, she said that when she left Marivic's house on November 15, 1995, the couple were still quarreling.

'7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at PHILPHOS, Isabel, Leyte. Marivic was his patient 'many times' and had also received treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November 9, 1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These injuries were reported in his Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted the qualifications of Dr. Caing and considered him an expert witness.'

x x x       x x x       x x x

'Dr. Caing's clinical history of the tension headache and hypertention of Marivic on twenty-three (23) separate occasions was marked at Exhibits '2' and '2-B.' The OPD Chart of Marivic at the Philphos Clinic which reflected all the consultations made by Marivic and the six (6) incidents of physical injuries reported was marked as Exhibit '3.'

"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the injuries were directly related to the crime committed. He said it is only a psychiatrist who is qualified to examine the psychological make-up of the patient, 'whether she is capable of committing a crime or not.'

'7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that about two (2) months before Ben died, Marivic went to his office past 8:00 in the evening. She sought his help to settle or confront the Genosa couple who were experiencing 'family troubles'. He told Marivic to return in the morning, but he did not hear from her again and assumed 'that they might have settled with each other or they might have forgiven with each other.'

x x x       x x x       x x x

"Marivic said she did not provoke her husband when she got home that night it was her husband who began the provocation. Marivic said she was frightened that her husband would hurt her and she wanted to make sure she would deliver her baby safely. In fact, Marivic had to be admitted later at the Rizal Medical Centre as she was suffering from eclampsia and hypertension, and the baby was born prematurely on December 1, 1995.

"Marivic testified that during her marriage she had tried to leave her husband at least five (5) times, but that Ben would always follow her and they would reconcile. Marivic said that the reason why Ben was violent and abusive towards her that night was because 'he was crazy about his recent girlfriend, Lulu x x x Rubillos.'

"On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the bedroom; that their quarrels could be heard by anyone passing their house; that Basobas lied in his testimony; that she left for Manila the next day, November 16, 1995; that she did not bother anyone in Manila, rented herself a room, and got herself a job as a field researcher under the alias 'Marvelous Isidro'; she did not tell anyone that she was leaving Leyte, she just wanted to have a safe delivery of her baby; and that she was arrested in San Pablo, Laguna.

'Answering questions from the Court, Marivic said that she threw the gun away; that she did not know what happened to the pipe she used to 'smash him once'; that she was wounded by Ben on her wrist with the bolo; and that two (2) hours after she was 'whirled' by Ben, he kicked her 'ass' and dragged her towards the drawer when he saw that she had packed his things.'

"9. The body of Ben Genosa was found on November 18, 1995 after an investigation was made of the foul odor emitting from the Genosa residence. This fact was testified to by all the prosecution witnesses and some defense witnesses during the trial.

"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the time of the incident, and among her responsibilities as such was to take charge of all medico-legal cases, such as the examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic pathologist. She merely took the medical board exams and passed in 1986. She was called by the police to go to the Genosa residence and when she got there, she saw 'some police officer and neighbor around.' She saw Ben Genosa, covered by a blanket, lying in a semi-prone position with his back to the door. He was wearing only a brief.

x x x x x x x x x

"Dra. Cerillo said that 'there is only one injury and that is the injury involving the skeletal area of the head' which she described as a 'fracture'. And that based on her examination, Ben had been dead 2 or 3 days. Dra. Cerillo did not testify as to what caused his death.

"Dra. Cerillo was not cross-examined by defense counsel.

"11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the crime of PARRICIDE committed 'with intent to kill, with treachery and evidence premeditation, x x x wilfully, unlawfully and feloniously attack, assault, hit and wound x x x her legitimate husband, with the use of a hard deadly weapon x x x which caused his death.'

"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998.

"13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT finding Marivic guilty 'beyond reasonable doubt' of the crime of parricide, and further found treachery as an aggravating circumstance, thus sentencing her to the ultimate penalty of DEATH.

"14. The case was elevated to this Honorable Court upon automatic review and, under date of 24 January 2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellant's Briefs he had prepared for Marivic which, for reasons of her own, were not conformed to by her.

"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of appearance of undersigned counsel.

"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office, wherein she submitted her 'Brief without counsels' to the Court.

"This letter was stamp-received by the Honorable Court on 4 February 2000.

"16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION praying that the Honorable Court allow the exhumation of Ben Genosa and the re-examination of the cause of his death; allow the examination of Marivic Genosa by qualified psychologists and psychiatrists to determine her state of mind at the time she killed her husband; and finally, to allow a partial re-opening of the case a quo to take the testimony of said psychologists and psychiatrists.

"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only qualified forensic pathologist in the country, who opined that the description of the death wound (as culled from the post-mortem findings, Exhibit 'A') is more akin to a gunshot wound than a beating with a lead pipe.

"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivic's URGENT OMNIBUS MOTION and remanded the case 'to the trial court for the reception of expert psychological and/or psychiatric opinion on the 'battered woman syndrome' plea, within ninety (90) days from notice, and, thereafter to forthwith report to this Court the proceedings taken, together with the copies of the TSN and relevant documentary evidence, if any, submitted.'

"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.

"Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews were done at the Penal Institution in 1999, but that the clinical interviews and psychological assessment were done at her clinic.

"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own private clinic and connected presently to the De La Salle University as a professor. Before this, she was the Head of the Psychology Department of the Assumption College; a member of the faculty of Psychology at the Ateneo de Manila University and St. Joseph's College; and was the counseling psychologist of the National Defense College. She has an AB in Psychology from the University of the Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past president of the Psychological Association of the Philippines and is a member of the American Psychological Association. She is the secretary of the International Council of Psychologists from about 68 countries; a member of the Forensic Psychology Association; and a member of the ASEAN [Counseling] Association. She is actively involved with the Philippine Judicial Academy, recently lecturing on the socio-demographic and psychological profile of families involved in domestic violence and nullity cases. She was with the Davide Commission doing research about Military Psychology. She has written a book entitled 'Energy Global Psychology' (together with Drs. Allan Tan and Allan Bernardo). The Genosa case is the first time she has testified as an expert on battered women as this is the first case of that nature.

"Dra. Dayan testified that for the research she conducted, on the socio-demographic and psychological profile of families involved in domestic violence, and nullity cases, she looked at about 500 cases over a period of ten (10) years and discovered that 'there are lots of variables that cause all of this marital conflicts, from domestic violence to infidelity, to psychiatric disorder.'

"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of psychological abuse, verbal abuse, and emotional abuse to physical abuse and also sexual abuse.'

x x x       x x x       x x x

"Dra. Dayan testified that in her studies, 'the battered woman usually has a very low opinion of herself. She has a self-defeating and self-sacrificing characteristics. x x x they usually think very lowly of themselves and so when the violence would happen, they usually think that they provoke it, that they were the one who precipitated the violence, they provoke their spouse to be physically, verbally and even sexually abusive to them.' Dra. Dayan said that usually a battered x x x comes from a dysfunctional family or from 'broken homes.'

"Dra. Dayan said that the batterer, just like the battered woman, 'also has a very low opinion of himself. But then emerges to have superiority complex and it comes out as being very arrogant, very hostile, very aggressive and very angry. They also had (sic) a very low tolerance for frustrations. A lot of times they are involved in vices like gambling, drinking and drugs. And they become violent.' The batterer also usually comes from a dysfunctional family which over-pampers them and makes them feel entitled to do anything. Also, they see often how their parents abused each other so 'there is a lot of modeling of aggression in the family.'

"Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her husband: poverty, self-blame and guilt that she provoked the violence, the cycle itself which makes her hope her husband will change, the belief in her obligations to keep the family intact at all costs for the sake of the children.

x x x       x x x       x x x

"Dra. Dayan said that abused wives react differently to the violence: some leave the house, or lock themselves in another room, or sometimes try to fight back triggering 'physical violence on both of them.' She said that in a 'normal marital relationship,' abuses also happen, but these are 'not consistent, not chronic, are not happening day in [and] day out.' In an 'abnormal marital relationship,' the abuse occurs day in and day out, is long lasting and 'even would cause hospitalization on the victim and even death on the victim.'

x x x       x x x       x x x

"Dra. Dayan said that as a result of the battery of psychological tests she administered, it was her opinion that Marivic fits the profile of a battered woman because 'inspite of her feeling of self-confidence which we can see at times there are really feeling (sic) of loss, such feelings of humiliation which she sees herself as damaged and as a broken person. And at the same time she still has the imprint of all the abuses that she had experienced in the past.'

x x x       x x x       x x x

"Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for nullity or legal separation inspite of the abuses. It was at the time of the tragedy that Marivic then thought of herself as a victim.

x x x       x x x       x x x

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared and testified before RTC-Branch 35, Ormoc City.

"Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association. He was in the practice of psychiatry for thirty-eight (38) years. Prior to being in private practice, he was connected with the Veterans Memorial Medical Centre where he gained his training on psychiatry and neurology. After that, he was called to active duty in the Armed Forces of the Philippines, assigned to the V. Luna Medical Center for twenty six (26) years. Prior to his retirement from government service, he obtained the rank of Brigadier General. He obtained his medical degree from the University of Santo Tomas. He was also a member of the World Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical Society; and the Philippine Association of Military Surgeons.

"He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy from the Period 1954 – 1978' which was presented twice in international congresses. He also authored 'The Mental Health of the Armed Forces of the Philippines 2000', which was likewise published internationally and locally. He had a medical textbook published on the use of Prasepam on a Parke-Davis grant; was the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he published the use of the drug Zopiclom in 1985-86.

"Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology deals with the ailment of the brain and spinal cord enlarged. Psychology, on the other hand, is a bachelor degree and a doctorate degree; while one has to finish medicine to become a specialist in psychiatry.

"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already encountered a suit involving violent family relations, and testified in a case in 1964. In the Armed Forces of the Philippines, violent family disputes abound, and he has seen probably ten to twenty thousand cases. In those days, the primordial intention of therapy was reconciliation. As a result of his experience with domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City under Atty. Nenita Deproza.

"As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is physical abuse: such as slapping, pushing, verbal abuse, battering and boxing a woman even to an unconscious state such that the woman is sometimes confined. The affliction of Post-Traumatic Stress Disorder 'depends on the vulnerability of the victim.' Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode of violence may induce the disorder; if the psychological stamina and physiologic constitutional stamina of the victim is stronger, 'it will take more repetitive trauma to precipitate the post-traumatic stress disorder and this x x x is very dangerous.'

"In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety neurosis or neurologic anxcietism.' It is produced by 'overwhelming brutality, trauma.'

x x x       x x x       x x x

"Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the beating or trauma as if it were real, although she is not actually being beaten at that time. She thinks 'of nothing but the suffering.'

x x x       x x x       x x x

"A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and she is irritable and restless. She tends to become hard-headed and persistent. She has higher sensitivity and her 'self-world' is damaged.

"Dr. Pajarillo said that an abnormal family background relates to an individual's illness, such as the deprivation of the continuous care and love of the parents. As to the batterer, he normally 'internalizes what is around him within the environment.' And it becomes his own personality. He is very competitive; he is aiming high all the time; he is so macho; he shows his strong façade 'but in it there are doubts in himself and prone to act without thinking.'

x x x       x x x       x x x

"Dr. Pajarillo emphasized that 'even though without the presence of the precipator (sic) or the one who administered the battering, that re-experiencing of the trauma occurred (sic) because the individual cannot control it. It will just come up in her mind or in his mind.'

x x x       x x x       x x x

"Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves, and 'primarily with knives. Usually pointed weapons or any weapon that is available in the immediate surrounding or in a hospital x x x because that abound in the household.' He said a victim resorts to weapons when she has 'reached the lowest rock bottom of her life and there is no other recourse left on her but to act decisively.'

x x x       x x x       x x x

"Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for two (2) hours and seventeen (17) minutes. He used the psychological evaluation and social case studies as a help in forming his diagnosis. He came out with a Psychiatric Report, dated 22 January 2001.

x x x       x x x       x x x

"On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed her husband Marivic'c mental condition was that she was 're-experiencing the trauma.' He said 'that we are trying to explain scientifically that the re-experiencing of the trauma is not controlled by Marivic. It will just come in flashes and probably at that point in time that things happened when the re-experiencing of the trauma flashed in her mind.' At the time he interviewed Marivic 'she was more subdued, she was not super alert anymore x x x she is mentally stress (sic) because of the predicament she is involved.'

x x x       x x x       x x x

"20. No rebuttal evidence or testimony was presented by either the private or the public prosecutor. Thus, in accord with the Resolution of this Honorable Court, the records of the partially re-opened trial a quo were elevated."⁹

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution evidence that appellant had killed the deceased while he was in bed sleeping. Further, the trial court appreciated the generic aggravating circumstance of treachery, because Ben Genosa was supposedly defenseless when he was killed -- lying in bed asleep when Marivic smashed him with a pipe at the back of his head.

The capital penalty having been imposed, the case was elevated to this Court for automatic review.

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination of appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she had killed her spouse; and (3) the inclusion of the said experts' reports in the records of the case for purposes of the automatic review or, in the alternative, a partial reopening of the case for the lower court to admit the experts' testimonies.

On September 29, 2000, this Court issued a Resolution granting in part appellant's Motion, remanding the case to the trial court for the reception of expert psychological and/or psychiatric opinion on the "battered woman syndrome" plea; and requiring the lower court to report thereafter to this Court the proceedings taken as well as to submit copies of the TSN and additional evidence, if any.

Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two clinical psychologists, Drs. Natividad Dayan¹⁰ and Alfredo Pajarillo,¹¹ supposedly experts on domestic violence. Their testimonies, along with their documentary evidence, were then presented to and admitted by the lower court before finally being submitted to this Court to form part of the records of the case.¹²

The Issues

Appellant assigns the following alleged errors of the trial court for this Court's consideration:

"1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting on the evidence adduced as to self-defense.

"2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally married and that she was therefore liable for parricide.

"3. The trial court gravely erred finding the cause of death to be by beating with a pipe.

"4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-beater; and further gravely erred in concluding that Ben Genosa was a battered husband.

"5. The trial court gravely erred in not requiring testimony from the children of Marivic Genosa.

"6. The trial court gravely erred in concluding that Marivic's flight to Manila and her subsequent apologies were indicia of guilt, instead of a clear attempt to save the life of her unborn child.

"7. The trial court gravely erred in concluding that there was an aggravating circumstance of treachery.

"8. The trial court gravely erred in refusing to re-evaluate the traditional elements in determining the existence of self-defense and defense of foetus in this case, thereby erroneously convicting Marivic Genosa of the crime of parricide and condemning her to the ultimate penalty of death."¹³

In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.

The Court's Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution of the principal issues. As consistently held by this Court, the findings of the trial court on the credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion or overlooked, misunderstood or misapplied material facts or circumstances of weight and substance that could affect the outcome of the case.¹⁴

In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or misappreciation of material facts that would reverse or modify the trial court's disposition of the case. In any event, we will now briefly dispose of these alleged errors of the trial court.

First, we do not agree that the lower court promulgated "an obviously hasty decision without reflecting on the evidence adduced as to self-defense." We note that in his 17-page Decision, Judge Fortunito L. Madrona summarized the testimonies of both the prosecution and the defense witnesses and -- on the basis of those and of the documentary evidence on record -- made his evaluation, findings and conclusions. He wrote a 3-page discourse assessing the testimony and the self-defense theory of the accused. While she, or even this Court, may not agree with the trial judge's conclusions, we cannot peremptorily conclude, absent substantial evidence, that he failed to reflect on the evidence presented.

Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at least 13 hearings were held for over a year. It took the trial judge about two months from the conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case with dispatch should not be taken against him, much less used to condemn him for being unduly hasty. If at all, the dispatch with which he handled the case should be lauded. In any case, we find his actions in substantial compliance with his constitutional obligation.¹⁵

Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been legally married, despite the non-presentation of their marriage contract. In People v. Malabago,¹⁶ this Court held:

"The key element in parricide is the relationship of the offender with the victim. In the case of parricide of a spouse, the best proof of the relationship between the accused and the deceased is the marriage certificate. In the absence of a marriage certificate, however, oral evidence of the fact of marriage may be considered by the trial court if such proof is not objected to."

Two of the prosecution witnesses -- namely, the mother and the brother of appellant's deceased spouse -- attested in court that Ben had been married to Marivic.¹⁷ The defense raised no objection to these testimonies. Moreover, during her direct examination, appellant herself made a judicial admission of her marriage to Ben.¹⁸ Axiomatic is the rule that a judicial admission is conclusive upon the party making it, except only when there is a showing that (1) the admission was made through a palpable mistake, or (2) no admission was in fact made.¹⁹ Other than merely attacking the non-presentation of the marriage contract, the defense offered no proof that the admission made by appellant in court as to the fact of her marriage to the deceased was made through a palpable mistake.

Third, under the circumstances of this case, the specific or direct cause of Ben's death -- whether by a gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its September 29, 2000 Resolution, "[c]onsidering that the appellant has admitted the fact of killing her husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which of said acts actually caused the victim's death." Determining which of these admitted acts caused the death is not dispositive of the guilt or defense of appellant.

Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk, gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant had not raised the novel defense of "battered woman syndrome," for which such evidence may have been relevant. Her theory of self-defense was then the crucial issue before the trial court. As will be discussed shortly, the legal requisites of self-defense under prevailing jurisprudence ostensibly appear inconsistent with the surrounding facts that led to the death of the victim. Hence, his personal character, especially his past behavior, did not constitute vital evidence at the time.

Fifth, the trial court surely committed no error in not requiring testimony from appellant's children. As correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction and control of the public prosecutor, in whom lies the discretion to determine which witnesses and evidence are necessary to present.²⁰ As the former further points out, neither the trial court nor the prosecution prevented appellant from presenting her children as witnesses. Thus, she cannot now fault the lower court for not requiring them to testify.

Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life of her unborn child. Any reversible error as to the trial court's appreciation of these circumstances has little bearing on the final resolution of the case.

First Legal Issue:

Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or defense of her unborn child. When the accused admits killing the victim, it is incumbent upon her to prove any claimed justifying circumstance by clear and convincing evidence.²¹ Well-settled is the rule that in criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the burden of proof from the prosecution to the defense.²²

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of self-defense or, at the least, incomplete self-defense.²³ By appreciating evidence that a victim or defendant is afflicted with the syndrome, foreign courts convey their "understanding of the justifiably fearful state of mind of a person who has been cyclically abused and controlled over a period of time."²⁴

A battered woman has been defined as a woman "who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimate relationship with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman."²⁵

Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about the home, the family and the female sex role; emotional dependence upon the dominant male; the tendency to accept responsibility for the batterer's actions; and false hopes that the relationship will improve.²⁶

More graphically, the battered woman syndrome is characterized by the so-called "cycle of violence,"²⁷ which has three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent) phase.²⁸

During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be double-edged, because her "placatory" and passive behavior legitimizes his belief that he has the right to abuse her in the first place.

However, the techniques adopted by the woman in her effort to placate him are not usually successful, and the verbal and/or physical abuse worsens. Each partner senses the imminent loss of control and the growing tension and despair. Exhausted from the persistent stress, the battered woman soon withdraws emotionally. But the more she becomes emotionally unavailable, the more the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the violence "spirals out of control" and leads to an acute battering incident.²⁹

The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no control; only the batterer may put an end to the violence. Its nature can be as unpredictable as the time of its explosion, and so are his reasons for ending it. The battered woman usually realizes that she cannot reason with him, and that resistance would only exacerbate her condition.

At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later clearly remember every detail. Her apparent passivity in the face of acute violence may be rationalized thus: the batterer is almost always much stronger physically, and she knows from her past painful experience that it is futile to fight back. Acute battering incidents are often very savage and out of control, such that innocent bystanders or intervenors are likely to get hurt.³⁰

The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and tries to make up for it, begging for her forgiveness and promising never to beat her again. On the other hand, the battered woman also tries to convince herself that the battery will never happen again; that her partner will change for the better; and that this "good, gentle and caring man" is the real person whom she loves.

A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth, though, is that the chances of his reforming, or seeking or receiving professional help, are very slim, especially if she remains with him. Generally, only after she leaves him does he seek professional help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most thoroughly tormented psychologically.

The illusion of absolute interdependency is well-entrenched in a battered woman's psyche. In this phase, she and her batterer are indeed emotionally dependent on each other -- she for his nurturant behavior, he for her forgiveness. Underneath this miserable cycle of "tension, violence and forgiveness," each partner may believe that it is better to die than to be separated. Neither one may really feel independent, capable of functioning without the other.³¹

History of Abuse
in the Present Case

To show the history of violence inflicted upon appellant, the defense presented several witnesses. She herself described her heart-rending experience as follows:

"ATTY. TABUCANON

Q How did you describe your marriage with Ben Genosa?

A In the first year, I lived with him happily but in the subsequent year he was cruel to me and a behavior of habitual drinker.

Q You said that in the subsequent year of your marriage, your husband was abusive to you and cruel. In what way was this abusive and cruelty manifested to you?

A He always provoke me in everything, he always slap me and sometimes he pinned me down on the bed and sometimes beat me.

Q How many times did this happen?

A Several times already.

Q What did you do when these things happen to you?

A I went away to my mother and I ran to my father and we separate each other.

Q What was the action of Ben Genosa towards you leaving home?

A He is following me, after that he sought after me.

Q What will happen when he follow you?

A He said he changed, he asked for forgiveness and I was convinced and after that I go to him and he said 'sorry'.

Q During those times that you were the recipient of such cruelty and abusive behavior by your husband, were you able to see a doctor?

A Yes, sir.

Q Who are these doctors?

A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.

x x x       x x x       x x x

Q You said that you saw a doctor in relation to your injuries?

A Yes, sir.

Q Who inflicted these injuries?

A Of course my husband.

Q You mean Ben Genosa?

A Yes, sir.

x x x       x x x       x x x

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

Q No, from the time that you said the cruelty or the infliction of injury inflicted on your occurred, after your marriage, from that time on, how frequent was the occurrence?

A Everytime he got drunk.

Q Is it daily, weekly, monthly or how many times in a month or in a week?

A Three times a week.

Q Do you mean three times a week he would beat you?

A Not necessarily that he would beat me but sometimes he will just quarrel me." ³²

Referring to his "Out-Patient Chart"³³ on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing bolstered her foregoing testimony on chronic battery in this manner:

"Q So, do you have a summary of those six (6) incidents which are found in the chart of your clinic?

A Yes, sir.

Q Who prepared the list of six (6) incidents, Doctor?

A I did.

Q Will you please read the physical findings together with the dates for the record.

A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness of eye. Attending physician: Dr. Lucero;

2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast. Attending physician: Dr. Canora;

3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

4. August 1, 1994 - Pain, mastitis (L) breast, 2^o to trauma. Attending physician: Dr. Caing;

5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and

6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending physician: Dr. Canora.

Q Among the findings, there were two (2) incidents wherein you were the attending physician, is that correct?

A Yes, sir.

Q Did you actually physical examine the accused?

A Yes, sir.

Q Now, going to your finding no. 3 where you were the one who attended the patient. What do you mean by abrasion furuncle left axilla?

A Abrasion is a skin wound usually when it comes in contact with something rough substance if force is applied.

Q What is meant by furuncle axilla?

A It is secondary of the light infection over the abrasion.

Q What is meant by pain mastitis secondary to trauma?

A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain] meaning there is tenderness. When your breast is traumatized, there is tenderness pain.

Q So, these are objective physical injuries. Doctor?

x x x       x x x       x x x

Q Were you able to talk with the patient?

A Yes, sir.

Q What did she tell you?

A As a doctor-patient relationship, we need to know the cause of these injuries. And she told me that it was done to her by her husband.

Q You mean, Ben Genosa?

A Yes, sir.

x x x       x x x       x x x

ATTY. TABUCANON:

Q By the way Doctor, were you able to physical examine the accused sometime in the month of November, 1995 when this incident happened?

A As per record, yes.

Q What was the date?

A It was on November 6, 1995.

Q So, did you actually see the accused physically?

A Yes, sir.

Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?

A Yes, sir.

Q Being a doctor, can you more engage at what stage of pregnancy was she?

A Eight (8) months pregnant.

Q So in other words, it was an advance stage of pregnancy?

A Yes, sir.

Q What was your November 6, 1995 examination, was it an examination about her pregnancy or for some other findings?

A No, she was admitted for hypertension headache which complicates her pregnancy.

Q When you said admitted, meaning she was confined?

A Yes, sir.

Q For how many days?

A One day.

Q Where?

A At PHILPHOS Hospital.

x x x       x x x       x x x

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her personally on November 6, 1995 and she was 8 months pregnant.

What is this all about?

A Because she has this problem of tension headache secondary to hypertension and I think I have a record here, also the same period from 1989 to 1995, she had a consultation for twenty-three (23) times.

Q For what?

A Tension headache.

Q Can we say that specially during the latter consultation, that the patient had hypertension?

A The patient definitely had hypertension. It was refractory to our treatment. She does not response when the medication was given to her, because tension headache is more or less stress related and emotional in nature.

Q What did you deduce of tension headache when you said is emotional in nature?

A From what I deduced as part of our physical examination of the patient is the family history in line of giving the root cause of what is causing this disease. So, from the moment you ask to the patient all comes from the domestic problem.

Q You mean problem in her household?

A Probably.

Q Can family trouble cause elevation of blood pressure, Doctor?

A Yes, if it is emotionally related and stressful it can cause increases in hypertension which is unfortunately does not response to the medication.

Q In November 6, 1995, the date of the incident, did you take the blood pressure of the accused?

A On November 6, 1995 consultation, the blood pressure was 180/120.

Q Is this considered hypertension?

A Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure?

A It was dangerous to the child or to the fetus." ³⁴

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte, testified that he had seen the couple quarreling several times; and that on some occasions Marivic would run to him with bruises, confiding that the injuries were inflicted upon her by Ben.³⁵

Ecel Arano also testified³⁶ that for a number of times she had been asked by Marivic to sleep at the Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one occasion that Ecel did sleep over, she was awakened about ten o'clock at night, because the couple "were very noisy … and I heard something was broken like a vase." Then Marivic came running into Ecel's room and locked the door. Ben showed up by the window grill atop a chair, scaring them with a knife.

On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but they were unable to. They returned to the Genosa home, where they found him already drunk. Again afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave.

On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or heard the couple quarreling.³⁷ Marivic relates in detail the following backdrop of the fateful night when life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her:

"ATTY. TABUCANON:

Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?

A Whole morning and in the afternoon, I was in the office working then after office hours, I boarded the service bus and went to Bilwang. When I reached Bilwang, I immediately asked my son, where was his father, then my second child said, 'he was not home yet'. I was worried because that was payday, I was anticipating that he was gambling. So while waiting for him, my eldest son arrived from school, I prepared dinner for my children.

Q This is evening of November 15, 1995?

A Yes, sir.

Q What time did Ben Genosa arrive?

A When he arrived, I was not there, I was in Isabel looking for him.

Q So when he arrived you were in Isabel looking for him?

A Yes, sir.

Q Did you come back to your house?

A Yes, sir.

Q By the way, where was your conjugal residence situated this time?

A Bilwang.

Q Is this your house or you are renting?

A Renting.

Q What time were you able to come back in your residence at Bilwang?

A I went back around almost 8:00 o'clock.

Q What happened when you arrived in your residence?

A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time because I had fears that he was again drunk and I was worried that he would again beat me so I requested my cousin to sleep with me, but she resisted because she had fears that the same thing will happen again last year.

Q Who was this cousin of yours who you requested to sleep with you?

A Ecel Araño, the one who testified.

Q Did Ecel sleep with you in your house on that evening?

A No, because she expressed fears, she said her father would not allow her because of Ben.

Q During this period November 15, 1995, were you pregnant?

A Yes, 8 months.

Q How advance was your pregnancy?

A Eight (8) months.

Q Was the baby subsequently born?

A Yes, sir.

Q What's the name of the baby you were carrying at that time?

A Marie Bianca.

Q What time were you able to meet personally your husband?

A Yes, sir.

Q What time?

A When I arrived home, he was there already in his usual behavior.

Q Will you tell this Court what was his disposition?

A He was drunk again, he was yelling in his usual unruly behavior.

Q What was he yelling all about?

A His usual attitude when he got drunk.

Q You said that when you arrived, he was drunk and yelling at you? What else did he do if any?

A He is nagging at me for following him and he dared me to quarrel him.

Q What was the cause of his nagging or quarreling at you if you know?

A He was angry at me because I was following x x x him, looking for him. I was just worried he might be overly drunk and he would beat me again.

Q You said that he was yelling at you, what else, did he do to you if any?

A He was nagging at me at that time and I just ignore him because I want to avoid trouble for fear that he will beat me again. Perhaps he was disappointed because I just ignore him of his provocation and he switch off the light and I said to him, 'why did you switch off the light when the children were there.' At that time I was also attending to my children who were doing their assignments. He was angry with me for not answering his challenge, so he went to the kitchen and [got] a bolo and cut the antenna wire to stop me from watching television.

Q What did he do with the bolo?

A He cut the antenna wire to keep me from watching T.V.

Q What else happened after he cut the wire?

A He switch off the light and the children were shouting because they were scared and he was already holding the bolo.

Q How do you described this bolo?

A 1 1/2 feet.

Q What was the bolo used for usually?

A For chopping meat.

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I run to the room.

Q What do you mean that he was about to attack you?

A When I attempt to run he held my hands and he whirled me and I fell to the bedside.

Q So when he whirled you, what happened to you?

A I screamed for help and then he left.

Q You said earlier that he whirled you and you fell on the bedside?

A Yes, sir.

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do in that particular time?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.

Q During this time, where were your children, what were their reactions?

A After a couple of hours, he went back again and he got angry with me for packing his clothes, then he dragged me again of the bedroom holding my neck.

Q You said that when Ben came back to your house, he dragged you? How did he drag you?

COURT INTERPRETER:

The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me that 'you might as well be killed so there will be nobody to nag me.'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER:

(At this juncture the witness started crying).

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very moment everything on my mind was to pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER:

(The witness at this juncture is crying intensely).

x x x       x x x       x x x

ATTY. TABUCANON:

Q Talking of drawer, is this drawer outside your room?

A Outside.

Q In what part of the house?

A Dining.

Q Where were the children during that time?

A My children were already asleep.

Q You mean they were inside the room?

A Yes, sir.

Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me." ³⁸

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions totaling about seventeen hours. Based on their talks, the former briefly related the latter's ordeal to the court a quo as follows:

"Q: What can you say, that you found Marivic as a battered wife? Could you in layman's term describe to this Court what her life was like as said to you?

A: What I remember happened then was it was more than ten years, that she was suffering emotional anguish. There were a lot of instances of abuses, to emotional abuse, to verbal abuse and to physical abuse. The husband had a very meager income, she was the one who was practically the bread earner of the family. The husband was involved in a lot of vices, going out with barkadas, drinking, even womanizing being involved in cockfight and going home very angry and which will trigger a lot of physical abuse. She also had the experience a lot of taunting from the husband for the reason that the husband even accused her of infidelity, the husband was saying that the child she was carrying was not his own. So she was very angry, she was at the same time very depressed because she was also aware, almost like living in purgatory or even hell when it was happening day in and day out." ³⁹

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly put forward, additional supporting evidence as shown below:

"Q In your first encounter with the appellant in this case in 1999, where you talked to her about three hours, what was the most relevant information did you gather?

A The most relevant information was the tragedy that happened. The most important information were escalating abuses that she had experienced during her marital life.

Q Before you met her in 1999 for three hours, we presume that you already knew of the facts of the case or at least you have substantial knowledge of the facts of the case?

A I believe I had an idea of the case, but I do not know whether I can consider them as substantial.

x x x       x x x       x x x

Q Did you gather an information from Marivic that on the side of her husband they were fond of battering their wives?

A I also heard that from her?

Q You heard that from her?

A Yes, sir.

Q Did you ask for a complete example who are the relatives of her husband that were fond of battering their wives?

A What I remember that there were brothers of her husband who are also battering their wives.

Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her husband followed her and battered [her] several times in that room?

A She told me about that.

Q Did she inform you in what hotel in Ormoc?

A Sir, I could not remember but I was told that she was battered in that room.

Q Several times in that room?

A Yes, sir. What I remember was that there is no problem about being battered, it really happened.

Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think that is the first time that we have this in the Philippines, what is your opinion?

A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a self-defense. I also believe that there had been provocation and I also believe that she became a disordered person. She had to suffer anxiety reaction because of all the battering that happened and so she became an abnormal person who had lost she's not during the time and that is why it happened because of all the physical battering, emotional battering, all the psychological abuses that she had experienced from her husband.

Q I do believe that she is a battered wife. Was she extremely battered?

A Sir, it is an extreme form of battering. Yes.⁴⁰

Parenthetically, the credibility of appellant was demonstrated as follows:

"Q And you also said that you administered [the] objective personality test, what x x x [is this] all about?

A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test is to find out about the lying prone[ne]ss of the person.

Q What do you mean by that?

A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can exaggerate or x x x [will] tell a lie[?]

Q And what did you discover on the basis of this objective personality test?

A She was a person who passed the honesty test. Meaning she is a person that I can trust. That the data that I'm gathering from her are the truth."⁴¹

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric Report,⁴² which was based on his interview and examination of Marivic Genosa. The Report said that during the first three years of her marriage to Ben, everything looked good -- the atmosphere was fine, normal and happy -- until "Ben started to be attracted to other girls and was also enticed in[to] gambling[,] especially cockfighting. x x x. At the same time Ben was often joining his barkada in drinking sprees."

The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to his wife. The Report continued: "At first, it was verbal and emotional abuses but as time passed, he became physically abusive. Marivic claimed that the viciousness of her husband was progressive every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected that her husband went for a drinking [spree]. They had been married for twelve years[;] and practically more than eight years, she was battered and maltreated relentlessly and mercilessly by her husband whenever he was drunk."

Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the Report, "[s]he also sought the advice and help of close relatives and well-meaning friends in spite of her feeling ashamed of what was happening to her. But incessant battering became more and more frequent and more severe. x x x."⁴³

From the totality of evidence presented, there is indeed no doubt in the Court's mind that Appellant Marivic Genosa was a severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of mind metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an ordinary, reasonable person who is evaluating the events immediately surrounding the incident. A Canadian court has aptly pointed out that expert evidence on the psychological effect of battering on wives and common law partners are both relevant and necessary. "How can the mental state of the appellant be appreciated without it? The average member of the public may ask: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called 'battered wife syndrome.'"⁴⁴

To understand the syndrome properly, however, one's viewpoint should not be drawn from that of an ordinary, reasonable person. What goes on in the mind of a person who has been subjected to repeated, severe beatings may not be consistent with -- nay, comprehensible to -- those who have not been through a similar experience. Expert opinion is essential to clarify and refute common myths and misconceptions about battered women.⁴⁵

The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had a significant impact in the United States and the United Kingdom on the treatment and prosecution of cases, in which a battered woman is charged with the killing of her violent partner. The psychologist explains that the cyclical nature of the violence inflicted upon the battered woman immobilizes the latter's "ability to act decisively in her own interests, making her feel trapped in the relationship with no means of escape."⁴⁶ In her years of research, Dr. Walker found that "the abuse often escalates at the point of separation and battered women are in greater danger of dying then."⁴⁷

Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a very low opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen the violence would happen, they usually think that they provoke[d] it, that they were the one[s] who precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even sexually abusive to them."⁴⁸

According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an abusive partner -- poverty, self-blame and guilt arising from the latter's belief that she provoked the violence, that she has an obligation to keep the family intact at all cost for the sake of their children, and that she is the only hope for her spouse to change.⁴⁹

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in suits involving violent family relations, having evaluated "probably ten to twenty thousand" violent family disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a result of his experience with domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City. As such, he got involved in about forty (40) cases of severe domestic violence, in which the physical abuse on the woman would sometimes even lead to her loss of consciousness.⁵⁰

Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress disorder, a form of "anxiety neurosis or neurologic anxietism."⁵¹ After being repeatedly and severely abused, battered persons "may believe that they are essentially helpless, lacking power to change their situation. x x x [A]cute battering incidents can have the effect of stimulating the development of coping responses to the trauma at the expense of the victim's ability to muster an active response to try to escape further trauma. Furthermore, x x x the victim ceases to believe that anything she can do will have a predictable positive effect."⁵²

A study⁵³ conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that "even if a person has control over a situation, but believes that she does not, she will be more likely to respond to that situation with coping responses rather than trying to escape." He said that it was the cognitive aspect -- the individual's thoughts -- that proved all-important. He referred to this phenomenon as "learned helplessness." "[T]he truth or facts of a situation turn out to be less important than the individual's set of beliefs or perceptions concerning the situation. Battered women don't attempt to leave the battering situation, even when it may seem to outsiders that escape is possible, because they cannot predict their own safety; they believe that nothing they or anyone else does will alter their terrible circumstances."⁵⁴

Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of her partner, she also believes that he is capable of killing her, and that there is no escape.⁵⁵ Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the relationship.⁵⁶ Unless a shelter is available, she stays with her husband, not only because she typically lacks a means of self-support, but also because she fears that if she leaves she would be found and hurt even more.⁵⁷

In the instant case, we meticulously scoured the records for specific evidence establishing that appellant, due to the repeated abuse she had suffered from her spouse over a long period of time, became afflicted with the battered woman syndrome. We, however, failed to find sufficient evidence that would support such a conclusion. More specifically, we failed to find ample evidence that would confirm the presence of the essential characteristics of BWS.

The defense fell short of proving all three phases of the "cycle of violence" supposedly characterizing the relationship of Ben and Marivic Genosa. No doubt there were acute battering incidents. In relating to the court a quo how the fatal incident that led to the death of Ben started, Marivic perfectly described the tension-building phase of the cycle. She was able to explain in adequate detail the typical characteristics of this stage. However, that single incident does not prove the existence of the syndrome. In other words, she failed to prove that in at least another battering episode in the past, she had gone through a similar pattern.

How did the tension between the partners usually arise or build up prior to acute battering? How did Marivic normally respond to Ben's relatively minor abuses? What means did she employ to try to prevent the situation from developing into the next (more violent) stage?

Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply mentioned that she would usually run away to her mother's or father's house;⁵⁸ that Ben would seek her out, ask for her forgiveness and promise to change; and that believing his words, she would return to their common abode.

Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe that she was the only hope for Ben to reform? And that she was the sole support of his emotional stability and well-being? Conversely, how dependent was she on him? Did she feel helpless and trapped in their relationship? Did both of them regard death as preferable to separation?

In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that would clearly and fully demonstrate the essential characteristics of the syndrome.

The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they were able to explain fully, albeit merely theoretically and scientifically, how the personality of the battered woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted upon her by her partner or spouse. They corroborated each other's testimonies, which were culled from their numerous studies of hundreds of actual cases. However, they failed to present in court the factual experiences and thoughts that appellant had related to them -- if at all -- based on which they concluded that she had BWS.

We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven in order to be appreciated. To repeat, the records lack supporting evidence that would establish all the essentials of the battered woman syndrome as manifested specifically in the case of the Genosas.

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in itself establish the legal right of the woman to kill her abusive partner. Evidence must still be considered in the context of self-defense.⁵⁹

From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense is the state of mind of the battered woman at the time of the offense⁶⁰ -- she must have actually feared imminent harm from her batterer and honestly believed in the need to kill him in order to save her life.

Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face a real threat on one's life; and the peril sought to be avoided must be imminent and actual, not merely imaginary.⁶¹ Thus, the Revised Penal Code provides the following requisites and effect of self-defense:⁶²

"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 is the most essential element of self-defense.⁶³ It presupposes actual, sudden and unexpected attack -- or an imminent danger thereof -- on the life or safety of a person.⁶⁴ In the present case, however, according to the testimony of Marivic herself, there was a sufficient time interval between the unlawful aggression of Ben and her fatal attack upon him. She had already been able to withdraw from his violent behavior and escape to their children's bedroom. During that time, he apparently ceased his attack and went to bed. The reality or even the imminence of the danger he posed had ended altogether. He was no longer in a position that presented an actual threat on her life or safety.

Had Ben still been awaiting Marivic when she came out of their children's bedroom -- and based on past violent incidents, there was a great probability that he would still have pursued her and inflicted graver harm -- then, the imminence of the real threat upon her life would not have ceased yet. Where the brutalized person is already suffering from BWS, further evidence of actual physical assault at the time of the killing is not required. Incidents of domestic battery usually have a predictable pattern. To require the battered person to await an obvious, deadly attack before she can defend her life "would amount to sentencing her to 'murder by installment.'"⁶⁵ Still, impending danger (based on the conduct of the victim in previous battering episodes) prior to the defendant's use of deadly force must be shown. Threatening behavior or communication can satisfy the required imminence of danger.⁶⁶ Considering such circumstances and the existence of BWS, self-defense may be appreciated.

We reiterate the principle that aggression, if not continuous, does not warrant self-defense.⁶⁷ In the absence of such aggression, there can be no self-defense -- complete or incomplete -- on the part of the victim.⁶⁸ Thus, Marivic's killing of Ben was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other modifying circumstances that would alter her penalty, we deem it proper to evaluate and appreciate in her favor circumstances that mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal case opens it wholly for review on any issue, including that which has not been raised by the parties.⁶⁹

From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological Evaluation Report dated November 29, 2000, opined as follows:

"This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced with her husband constitutes a form of [cumulative] provocation which broke down her psychological resistance and natural self-control. It is very clear that she developed heightened sensitivity to sight of impending danger her husband posed continuously. Marivic truly experienced at the hands of her abuser husband a state of psychological paralysis which can only be ended by an act of violence on her part." ⁷⁰

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of "repetitious pain taking, repetitious battering, [and] repetitious maltreatment" as well as the severity and the prolonged administration of the battering is posttraumatic stress disorder.⁷¹ Expounding thereon, he said:

"Q What causes the trauma, Mr. Witness?

A What causes the trauma is probably the repetitious battering. Second, the severity of the battering. Third, the prolonged administration of battering or the prolonged commission of the battering and the psychological and constitutional stamina of the victim and another one is the public and social support available to the victim. If nobody is interceding, the more she will go to that disorder....

x x x       x x x       x x x

Q You referred a while ago to severity. What are the qualifications in terms of severity of the postraumatic stress disorder, Dr. Pajarillo?

A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is injury to the head, banging of the head like that. It is usually the very very severe stimulus that precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like holding a pillow on the face, strangulating the individual, suffocating the individual, and boxing the individual. In this situation therefore, the victim is heightened to painful stimulus, like for example she is pregnant, she is very susceptible because the woman will not only protect herself, she is also to protect the fetus. So the anxiety is heightened to the end [sic] degree.

Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?

A We classify the disorder as [acute], or chronic or delayed or [a]typical.

Q Can you please describe this pre[-]classification you called delayed or [atypical]?

A The acute is the one that usually require only one battering and the individual will manifest now a severe emotional instability, higher irritability remorse, restlessness, and fear and probably in most [acute] cases the first thing will be happened to the individual will be thinking of suicide.

Q And in chronic cases, Mr. Witness?

A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is longer than six (6) months. The [acute] is only the first day to six (6) months. After this six (6) months you become chronic. It is stated in the book specifically that after six (6) months is chronic. The [a]typical one is the repetitious battering but the individual who is abnormal and then become normal. This is how you get neurosis from neurotic personality of these cases of post[t]raumatic stress disorder." ⁷²

Answering the questions propounded by the trial judge, the expert witness clarified further:

"Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x his or her mental capacity?

A Yes, your Honor.

Q As you were saying[,] it x x x obfuscated her rationality?

A Of course obfuscated."⁷³

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in "cumulative provocation which broke down her psychological resistance and natural self-control," "psychological paralysis," and "difficulty in concentrating or impairment of memory."

Based on the explanations of the expert witnesses, such manifestations were analogous to an illness that diminished the exercise by appellant of her will power without, however, depriving her of consciousness of her acts. There was, thus, a resulting diminution of her freedom of action, intelligence or intent. Pursuant to paragraphs 9⁷⁴ and 10⁷⁵ of Article 13 of the Revised Penal Code, this circumstance should be taken in her favor and considered as a mitigating factor. ⁷⁶

In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an impulse so powerful as to have naturally produced passion and obfuscation. It has been held that this state of mind is present when a crime is committed as a result of an uncontrollable burst of passion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to overcome reason.⁷⁷ To appreciate this circumstance, the following requisites should concur: (1) there is an act, both unlawful and sufficient to produce such a condition of mind; and (2) this act is not far removed from the commission of the crime by a considerable length of time, during which the accused might recover her normal equanimity.⁷⁸

Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his being killed by Marivic. He had further threatened to kill her while dragging her by the neck towards a cabinet in which he had kept a gun. It should also be recalled that she was eight months pregnant at the time. The attempt on her life was likewise on that of her fetus.⁷⁹ His abusive and violent acts, an aggression which was directed at the lives of both Marivic and her unborn child, naturally produced passion and obfuscation overcoming her reason. Even though she was able to retreat to a separate room, her emotional and mental state continued. According to her, she felt her blood pressure rise; she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a fit of indignation, she pried open the cabinet drawer where Ben kept a gun, then she took the weapon and used it to shoot him.

The confluence of these events brings us to the conclusion that there was no considerable period of time within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo's testimony⁸⁰ that with "neurotic anxiety" -- a psychological effect on a victim of "overwhelming brutality [or] trauma" -- the victim relives the beating or trauma as if it were real, although she is not actually being beaten at the time. She cannot control "re-experiencing the whole thing, the most vicious and the trauma that she suffered." She thinks "of nothing but the suffering." Such reliving which is beyond the control of a person under similar circumstances, must have been what Marivic experienced during the brief time interval and prevented her from recovering her normal equanimity. Accordingly, she should further be credited with the mitigating circumstance of passion and obfuscation.

It should be clarified that these two circumstances -- psychological paralysis as well as passion and obfuscation -- did not arise from the same set of facts.

On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a period of time resulted in her psychological paralysis, which was analogous to an illness diminishing the exercise of her will power without depriving her of consciousness of her acts.

The second circumstance, on the other hand, resulted from the violent aggression he had inflicted on her prior to the killing. That the incident occurred when she was eight months pregnant with their child was deemed by her as an attempt not only on her life, but likewise on that of their unborn child. Such perception naturally produced passion and obfuscation on her part.

Second Legal Issue:

Treachery

There is treachery when one commits any of the crimes against persons by employing means, methods or forms in the execution thereof without risk to oneself arising from the defense that the offended party might make.⁸¹ In order to qualify an act as treacherous, the circumstances invoked must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or conjectures, which have no place in the appreciation of evidence.⁸² Because of the gravity of the resulting offense, treachery must be proved as conclusively as the killing itself.⁸³

Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of Ben had been found lying in bed with an "open, depressed, circular" fracture located at the back of his head. As to exactly how and when he had been fatally attacked, however, the prosecution failed to establish indubitably. Only the following testimony of appellant leads us to the events surrounding his death:

"Q You said that when Ben came back to your house, he dragged you? How did he drag you?

COURT:

The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me that 'you might as well be killed so there will be nobody to nag me'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER

(At this juncture the witness started crying)

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very moment everything on my mind was to pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER

(The witness at this juncture is crying intensely).

x x x       x x x       x x x

Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like?

A Three (3) inches long and ½ inch wide.

Q It is a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me.

x x x       x x x       x x x

ATTY. TABUCANON:

Q You said that this blade fell from his grip, is it correct?

A Yes, because I smashed him.

Q What happened?

A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to the other room.

Q What else happened?

A When I was in the other room, I felt the same thing like what happened before when I was admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I was frightened I was about to die because of my blood pressure.

COURT INTERPRETER:

(Upon the answer of the witness getting the pipe and smashed him, the witness at the same time pointed at the back of her neck or the nape).

ATTY. TABUCANON:

Q You said you went to the room, what else happened?

A Considering all the physical sufferings that I've been through with him, I took pity on myself and I felt I was about to die also because of my blood pressure and the baby, so I got that gun and I shot him.

COURT

/to Atty. Tabucanon

Q You shot him?

A Yes, I distorted the drawer."⁸⁴

The above testimony is insufficient to establish the presence of treachery. There is no showing of the victim's position relative to appellant's at the time of the shooting. Besides, equally axiomatic is the rule that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as a qualifying circumstance, because the deceased may be said to have been forewarned and to have anticipated aggression from the assailant.⁸⁵

Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have been consciously and deliberately chosen for the specific purpose of accomplishing the unlawful act without risk from any defense that might be put up by the party attacked.⁸⁶ There is no showing, though, that the present appellant intentionally chose a specific means of successfully attacking her husband without any risk to herself from any retaliatory act that he might make. To the contrary, it appears that the thought of using the gun occurred to her only at about the same moment when she decided to kill her batterer-spouse. In the absence of any convincing proof that she consciously and deliberately employed the method by which she committed the crime in order to ensure its execution, this Court resolves the doubt in her favor.⁸⁷

Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to death. Since two mitigating circumstances and no aggravating circumstance have been found to have attended the commission of the offense, the penalty shall be lowered by one (1) degree, pursuant to Article 64 of paragraph 5⁸⁸ of the same Code.⁸⁹ The penalty of reclusion temporal in its medium period is imposable, considering that two mitigating circumstances are to be taken into account in reducing the penalty by one degree, and no other modifying circumstances were shown to have attended the commission of the offense.⁹⁰ Under the Indeterminate Sentence Law, the minimum of the penalty shall be within the range of that which is next lower in degree -- prision mayor -- and the maximum shall be within the range of the medium period of reclusion temporal.

Considering all the circumstances of the instant case, we deem it just and proper to impose the penalty of prision mayor in its minimum period, or six (6) years and one (1) day in prison as minimum; to reclusion temporal in its medium period, or 14 years 8 months and 1 day as maximum. Noting that appellant has already served the minimum period, she may now apply for and be released from detention on parole.⁹¹

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor simple to analyze and recognize vis-à-vis the given set of facts in the present case. The Court agonized on how to apply the theory as a modern-day reality. It took great effort beyond the normal manner in which decisions are made -- on the basis of existing law and jurisprudence applicable to the proven facts. To give a just and proper resolution of the case, it endeavored to take a good look at studies conducted here and abroad in order to understand the intricacies of the syndrome and the distinct personality of the chronically abused person. Certainly, the Court has learned much. And definitely, the solicitor general and appellant's counsel, Atty. Katrina Legarda, have helped it in such learning process.

While our hearts empathize with recurrently battered persons, we can only work within the limits of law, jurisprudence and given facts. We cannot make or invent them. Neither can we amend the Revised Penal Code. Only Congress, in its wisdom, may do so.

The Court, however, is not discounting the possibility of self-defense arising from the battered woman syndrome. We now sum up our main points. First, each of the phases of the cycle of violence must be proven to have characterized at least two battering episodes between the appellant and her intimate partner. Second, the final acute battering episode preceding the killing of the batterer must have produced in the battered person's mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life. Third, at the time of the killing, the batterer must have posed probable -- not necessarily immediate and actual -- grave harm to the accused, based on the history of violence perpetrated by the former against the latter. Taken altogether, these circumstances could satisfy the requisites of self-defense. Under the existing facts of the present case, however, not all of these elements were duly established.

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However, there being two (2) mitigating circumstances and no aggravating circumstance attending her commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum.

Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon her, the director of the Bureau of Corrections may immediately RELEASE her from custody upon due determination that she is eligible for parole, unless she is being held for some other lawful cause. Costs de oficio.

SO ORDERED.

Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.
Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join Justice Santiago in her dissent.
Vitug and Quisumbing JJ., in the result.
Ynares-Santiago J., see dissenting opinion.

DISSENTING OPINION

YNARES-SANTIAGO, J.:

In convicting Marivic Genosa of the crime of parricide, our esteemed colleague Mr. Justice Artemio V. Panganiban found that there was no factual basis to conclude that Marivic was suffering from "Battered Woman Syndrome" (BWS) at the time she took the life of her husband. With due respect, I register my dissent.

The novel theory of "Battered Woman Syndrome" is recognized in foreign jurisprudence as a form of self-defense. It operates upon the premise that a woman who has been cyclically abused and controlled over a period of time develops a fearful state of mind. Living in constant danger of harm or death, she knows that future beatings are almost certain to occur and will escalate over time. Her intimate knowledge of the violent nature of her batterer makes her alert to when a particular attack is forthcoming, and when it will seriously threaten her survival. Trapped in a cycle of violence and constant fear, it is not unlikely that she would succumb to her helplessness and fail to perceive possible solutions to the problem other than to injure or kill her batterer. She is seized by fear of an existing or impending lethal aggression and thus would have no opportunity beforehand to deliberate on her acts and to choose a less fatal means of eliminating her sufferings.¹

As exhaustively discussed in the ponencia, the "Battered Woman Syndrome" has three phases, to wit: (1) the tension-building phase, where minor batterings in the form of verbal or slight physical abuse occurs. Here, the woman tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way; (2) the acute battering incident phase which is characterized by brutality, destructiveness and sometimes, death. The battered woman usually realizes that she cannot reason with him and that resistance would only exacerbate her condition; and (3) the tranquil period, where the couple experience a compound relief and the batterer may show a tender and nurturing behavior towards his partner.

Contrary to the findings in the ponencia, the defense was able to establish the occurrence on more than one occasion of the "tension-building phase" of the cycle. The various testimonies of appellant's witnesses clearly reveal that she knew exactly when she would once again be subjected to acute battery. Her cousin, Ecel Arano, testified that she often asked the latter to sleep in her house as she was afraid every time her husband came home drunk. Clearly, whenever appellant requested for Arano's company, she was experiencing a tension-building phase. The barangay captain, Panfilo Tero, also testified that appellant sought his help two months before she killed her husband, again demonstrating that she was in the tension-building phase and was attempting to prevent another incident of acute battery. Appellant presented evidence to prove that the tension-building phase would occur whenever her husband would go out looking for other women, would lose at cockfights or would come home drunk. She often tried to ignore her husband's attitude or, as testified to by some witnesses for the prosecution, even shouted back, fought off or even injured her husband during the tension-building phase, if only to prevent the onset of acute battery.

Appellant was able to perfectly describe the tension-building phase of the cycle immediately prior to the death of her husband, i.e., when she knew or felt that she was going to be killed by the deceased. She could not possibly have testified with clarity as to prior tension-building phases in the cycle as she had never tried to kill her husband before this time.

It was shown by the testimonies of appellant and even witnesses for the prosecution that appellant would seek shelter in her mother's or her father's house after an acute battering incident, after which would begin the process of begging for forgiveness, promises of change in behavior and return to the conjugal home, only for the same cycle to begin all over again.

To require appellant to prove the state of mind of the deceased, as seems to be required in the ponencia, would mean that no person would ever be able to prove self-defense in a battered woman case. Appellant could not possibly prove whether the deceased felt provoked into battering by any act or omission of appellant. She cannot possibly prove that she felt herself to be the sole support of the deceased's emotional stability and well-being. Nevertheless, appellant felt trapped and helpless in the relationship as, in the end, she resorted to killing her husband as no one could or did help her, whether out of fear or insensitivity, during the violent marriage she endured.

The "acute battering incident stage" was well demonstrated by the severe beatings suffered by Marivic in the hands of the deceased as well as the threats to kill her using a bolo or a cutter.² The physical abuses occurred at least 3 times a week in the 11 miserable years of their marriage,³ six incidents of which were documented by the 1990-1995 medical records of Marivic. They included, among others, hematoma, contusion, and pain on the breasts; multiple contusions and trauma on the different parts of her body even during her pregnancy in 1995.⁴ The tranquil period underwent by Marivic was shown by the repeated "kiss and make-up" episodes of their relationship. On more than 5 occasions, Marivic ran to her parents' house after violent fights with the deceased only to forgive the latter every time he would fetch her and promise to change.⁵

All these recurring phases of cycle of violence, repentance and forgiveness developed a trauma in the mind of Marivic making her believe that a forthcoming attack from the deceased would cause her death. This state of mind of Marivic was revealed in her testimony given way back in 1998, before she was examined by experts on BWS. Unaware of the significance of her declarations, she candidly narrated how she felt immediately before she killed the deceased, thus -

ATTY. TABUCANON

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

xxx       xxx       xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key. [T]hen he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the room, and on that very moment everything on my mind was pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

xxx       xxx       xxx⁶

Q What else happened?

A When I was in the room, I felt the same thing like what happened before I was admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure has raised. I was frightened I was about to die because of my blood pressure.

xxx       xxx       xxx

A Considering all the physical sufferings that I've been through him, I took pity on myself and I felt I was about to die also because of my blood pressure and the baby, so I got the gun and shot him.⁷

It must be stressed that the defense of "Battered Woman Syndrome" was not raised by Marivic before the lower court but only here on automatic review. This makes the foregoing testimony more worthy of great weight and credence considering that the same could not have been cunningly given to suit or conform to the profile of a battered woman.

Moreover, there was indeed basis for Marivic to fear death because of her medical history. Dr. Dino Caing testified that he treated Marivic for hypertension due to domestically related emotional stress on 23 separate occasions. The latest one was on November 6, 1995 when she suffered from severe hypertension and had a blood pressure of 180/120 on the 8^th month of her pregnancy.⁸

Furthermore, Dr. Natividad A. Dayan, a clinical psychologist and an expert on BWS who examined Marivic, assessed the effects of the repeated violence on the latter as follows:

A What I remember ... was it was more than ten years that she was suffering from emotional anguish. There were a lot of instance of abuses, ... emotional abuse...verbal abuse and... physical abuse. The husband had very meager income, she was the one who was practically the bread earner of the family. The husband was involved in a lot of vices, going out with barkadas, drinking, even womanizing, being involved in cockfighting and in going home very angry which... triggered a lot of physical abuse. She also had the experience of taunting from the husband for the reason that the husband even accused her of infidelity, the husband was saying that the child she was carrying was not his own. So she was very angry, she was at the same time very depressed because she .. .[felt] almost like living in purgatory or even in hell when it was happening day in and day out.

xxx       xxx       xxx

Q And what was it that triggered ... that tragedy in your opinion?

A I think for several weeks, she was already having all those tensions, all those anxieties, they were not enough, that the husband was even going to cockfighting x x x

A She was angry with him, he was angry with her and I think he dragged her and even spun her around. She tried to fight him so there was a lot of fight and when she was able to escape, she went to another room and she locked herself with the children. And when the husband was for a while very angry he calms down then and then (sic). But I remember before that the husband was looking for the gun and I think he was not able to open the cabinet because she had the key. So during that time, I remember, that she was very much afraid of him, so when the husband calmed down and he was asleep, all she was concerned was to end up her misery, to save her child which she was carrying and to save her two children. I believe that somehow she's not rational.⁹

xxx       xxx       xxx

PROS. TRUYA

Q Mrs. Witness, being an expert witness, giving more the facts and circumstances on this case that the books you studied in the expertise in line and in the 77 hour contact with appellant Mrs. Genosa, could you say that this is not ordinary self-defense but a survival on her part?

A Yes, sir.

Q To what she did to her husband (sic)?

A Yes, sir this is not an ordinary self-defense, but this [is] a need to survive, a need to survive with her two sons and [the] child she's bringing.

Q Had she not able to kill her husband, would she still be in the very short moment with the victim (sic)?

A If she did not do that she believes that she will be the one who would be killed.¹⁰

There is no doubt therefore that Marivic was afflicted with the "Battered Woman Syndrome" and that it was an apprehension of death and the instinct to defend her and her unborn child's life that drove her to kill her husband.

The ponente further refused to sustain the self-defense proffered by Marivic because there was allegedly no aggression or danger posed on her life by the victim at the time she attacked the latter. Again, I beg to disagree.

Traditionally, in order that self-defense may be appreciated, the unlawful aggression or the attack must be imminent and actually in existence. This interpretation must, however, be re-evaluated vis-a-vis the recognized inherent characteristic of the psyche of a person afflicted with the "Battered Woman Syndrome." As previously discussed, women afflicted by this syndrome live in constant fear for their life and thus respond in self-defense. Once BWS and an impending danger based on the conduct of the deceased in previous battering episodes are established, actual occurrence of an assault is no longer a condition sine qua non before self defense may be upheld. Threatening behavior or communication can satisfy the required imminence of danger. As stated in the ponencia, to require the battered person to await an obvious deadly attack before she can defend her life would amount to sentencing her to murder by installment.

In the case at bar, the cycle of violence perpetrated by the deceased, which culminated in the physical assaults and an attempt to shoot Marivic when she was 8 months pregnant, took the place of unlawful aggression, thus entitling her to a complete self defense even if there was no actual employment of violence by the deceased at the time of the killing. Marivic had every reason to believe that the deceased would kill her that night not only because the latter was verbally threatening to kill her while attempting to get a gun from the drawer, but more importantly because the deceased wounded her on the wrist with a bolo, and because of the deceased's previous conduct of threatening to cut her throat with a cutter which he kept in his wallet. Quoted hereunder are the relevant testimonies of Marivic -

A When I arrived home, he was already in his usual behavior.

xxx       xxx       xxx

A He was drunk again, he was yelling in his usual unruly behavior.

xxx       xxx       xxx

A He was nagging ... me at that time and I just ignore[d] him because I want to avoid trouble for fear that he will beat me again. Perhaps he was disappointed because I just ignore[d] hi[s] provocation and he switch off the light and I said to him, "why did you switch off the light when the children were there." At that time I was also attending to my children who were doing their assignments. He was angry with me for not answering his challenge, so he went to the kitchen and g[o]t a bolo and cut the antenna wire to stop me from watching television.

xxx       xxx       xxx

A He switch[ed] off the light and the children were shouting because they were scared and he was already holding a bolo.

Q How do you describe this bolo?

A 1 1/2 feet.

xxx       xxx       xxx

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I ran to the room.

Q What do you mean that he was about to attack you?

A When I attempted] to run he held my hands and he whirled me and I fell [on] the bedside.¹¹

xxx       xxx       xxx

COURT

To the witness

xxx       xxx       xxx

Q The bolo that you said which Ben was holding at that time, [was] it a bolo or a knife?

A Bolo.

Q Were you wounded or were there inflictions on your body when he was holding and trying to frighten you [with] that bolo?

A No, only here.

COURT INTERPRETER

(The witness pointed to her wrist).

COURT

To the witness

Q You were demonstrating a motion, whirling, did your husband really whirl you?

A Yes, your Honor.

Q How did he whirl you?

A Whirled around.

Q Just like spinning.

xxx       xxx       xxx

Q Where did he whirl you, was it inside the bedroom or outside?

A In our bedroom.

Q Then after the whirling what happened?

A He kicked my ass and then I screamed.¹²

xxx       xxx       xxx

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do...?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.¹³

A I was frightened that my husband would hurt me, so I packed all his things then on the following day I will leave, I was afraid and I want to make sure I would deliver my baby safely.¹⁴

xxx       xxx       xxx

A After a couple of hours, he went back again and got angry with me for packing his clothes, then he dragged me again outside of the bedroom holding my neck.

ATTY. TABUCANON

Q You said that when Ben came back to your house, he dragged you? How did he drag... you?

COURT INTERPRETER

(The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)

A And he dragged me towards the door backwards.

ATTY. TABUCANON

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept shouting at me that "you might as well be killed so there will be nobody to nag me.

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

xxx       xxx       xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key. [T]hen he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the room, and on that very moment everything on my mind was pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

xxx       xxx       xxx

Q You said that he dropped the blade, for the record will you please

describe this blade about 3 inches long, how does it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes sir, that was the object used when he intimidate me.¹⁵

RE-DIRECT BY ATTY. TABUCANON

Q In other words, there were two (2) incidents, the first incident and then he left and then two (2) hours after he came back?

A Yes, sir.

Q And the whirling happened in the first incident?

A Yes, sir.

Q And the dragging with arms flexed in her neck and on that blade

happened on the second incident (sic)?

A Ye, sir.

xxx       xxx       xxx

COURT

To the witness

Q Why, what is that blade about?

A A cutter about 3 inches long.

Q Who used that?

A Ben.

Q He used that on you?

A He scared me on that (sic).

xxx       xxx       xxx

Q But he did not hit you with that?

A Yes, because I managed to run every time he scared (sic).¹⁶

There are many things which cannot be proved by direct evidence. One of this is state of mind. In the case at bar, there is more than sufficient physical evidence presented by the appellant from which her mental state can be inferred. The prosecution did not object to the presentation of these physical and testimonial pieces of evidence, namely, the medical records of 23 instances of domestic violence-related injuries and the testimonies of neighbors, cousins and even the barangay captain. Indeed, no person would endure 23 reported instances of beatings if she were planning to kill her spouse in the first place. The majority need not worry that women around the country will mastermind the killings of their husbands and then use this Decision to bolster their attempts to employ the BWS defense.

Moreover, as found in the ponencia, appellant should be allowed the mitigating circumstance of passion and obfuscation. This, at the very least, supports a finding that the acts of violence and battery committed by the deceased were illegal and unlawful and were committed immediately before appellant could recover her natural equanimity. But what is the natural equanimity of a battered woman? Appellant was not a normal married woman. She can never be in a state of natural equanimity as she was in a constant state of alertness and hypersensitivity to the next phase of acute battery. The esteemed ponente also correctly found that the appellant acted with diminished will-power. However, he failed to go further. In the case of People v. Javier,¹⁷ it was held:

Since accused-appellant has already admitted to the killing, it is incumbent upon him to prove the claimed mitigating circumstance of illness. In this case, however, aside from the testimony of the accused that his mind went blank when he killed his wife due to loss of sleep, no medical finding was presented regarding his mental condition at the time of the killing. This Court can hardly rely on the bare allegations of accused-appellant, nor on mere presumptions and conjectures. No clear and convincing evidence was shown that accused-appellant was suffering an illness which diminished his exercise of will-power at the time of the killing.¹⁸

In the case at bar, appellant was allowed and did in fact present clear and convincing evidence that she was a battered woman for 13-14 years and that she suffered from the "Battered Woman Syndrome". Expert testimony was presented and admitted to this effect, such that the ponente ably discussed the causes and effects of the syndrome. To ignore the testimony and the evidence thus presented is to make impossible the proof of mental state. Evidence as to the mental state need not be also "beyond reasonable doubt."

Verily, the requirement of threatening behavioral pattern of the batterer in previous violent episodes was sufficiently satisfied in the present case. This, juxtaposed to Marivic's affliction with BWS justified the killing of the deceased. The danger posed or created in her mind by the latter's threats using bladed weapons, bred a state of fear, where under the circumstances, the natural response of the battered woman would be to defend herself even at the cost of taking the life of the batterer.

The ponencia's acknowledgement of "Battered Woman Syndrome" as a valid form of self-defense, is a noble recognition of the plight of, and a triumph for battered women who are trapped in a culture of silence, shame, and fear. This would however be an empty victory if we deliberately close our eyes to the antecedents of this case. The facts are simple. Marivic was suffering from the "Battered Woman Syndrome" and was defending herself when she killed her husband. Her acquittal of the charge of parricide is therefore in order.

IN VIEW WHEREOF, I vote to ACQUIT Marivic Genosa.

Footnotes

¹ Penned by Judge Fortunito L. Madrona.

² Assailed Decision, p. 17; rollo, p. 43.

³ Signed by Provincial Prosecutor I Rosario D. Beleta.

⁴ Rollo, p. 9.

⁵ Atty. Joventino Isidro. The accused was also represented later by Atty. Gil Marvel P. Tabucanon.

⁶ Records, p. 65.

⁷ Appellee's Brief, pp. 5-13; rollo, pp. 435-443. Signed by Solicitor General Alfredo L. Benipayo, Assistant Solicitor General Karl B. Miranda, and Solicitor Ma. Ana C. Rivera.

⁸ Spelled as "Basobas" in some parts of the record.

⁹ Appellant's Brief, pp. 10-71; rollo, pp. 284-345; signed by Atty. Katrina Legarda. Citations omitted.

¹⁰ Qualifying her expertise, Dra. Dayan stated that she had been a practising clinical psychologist for over twenty (20) years. Currently, she is a professor at the De La Salle University. Prior thereto, she was the head of the Psychology Department of the Assumption College; a member of the faculty of Psychology of the Ateneo de Manila University and St. Joseph's College; and the counseling psychologist of the National Defense College. She obtained her bachelor's degree in psychology from the University of the Philippines (UP), her Master of Arts in Clinical Counseling from Ateneo, and her Ph.D. also from UP. She is the secretary of the International Council of Psychologists, comprised of members from about 68 countries; and was the past president of the Psychological Association of the Philippines. She is a member of the Forensic Psychology Association, the American Psychological Association, and the ASEAN Counseling Association. She authored the book entitled Energy Global Psychology (together with Drs. Allen Tan and Allan Bernardo). Dra. Dayan also lectures at the Philippine Judicial Academy, recently on the socio-demographic and psychological profiles of families involved in domestic violence cases. On the subject, she had conducted, for over a period of ten years, research on the profiles of about 500 families involved in domestic violence.

¹¹ Dr. Pajarillo obtained his medical degree from the University of Santo Tomas and has been in the practice of psychiatry for thirty-eight years. He honed his practice in psychiatry and neurology during his stint with the Veterans Memorial Medical Centre. Thereafter, he was called to active duty in the Armed Forces of the Philippines and was assigned at the V. Luna Medical Center for twenty-six years. He was a diplomate of the Philippine Board of Psychiatry; and a fellow of the Philippine Board of Psychiatry and the Philippine Psychiatry Association. He was also a member of the World Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical Society; and the Philippine Association of Military Surgeons. He authored The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy from the Period 1954-1978, which was presented twice in international congresses. He also authored "The Mental Health of the Armed Forces of the Philippines 2000," which was likewise published internationally and locally. On a Parke-Davis grant, he published a medical textbook on the use of Prasepam; on an ER Squibb grant, he was the first to use Enanthate (siquiline); and he published the use of the drug Zopiclom in 1985-86. Prior to his retirement from government service, he obtained the rank of Brigadier General. (TSN, February 9, 2001, pp. 6-9; Exhibits "F"-"F-9"-Appellant (Bio-Data of Dr. Pajarillo).

¹² This case was deemed submitted for resolution on April 4, 2003, upon receipt by this Court of appellee's Brief. Appellant's Brief was filed on December 2, 2002.

¹³ Appellant's Brief, rollo, pp. 346-347. Original in upper case.

¹⁴ Caca v. Court of Appeals and People, 341 Phil. 114, July 7, 1997; People v. Paragua, 326 Phil. 923, May 24, 1996; People v. Tanoy, 387 Phil. 750, May 12, 2000; People v. Magaro, 353 Phil. 862, July 2, 1998.

¹⁵ §15 of Art. VIII of the Constitution provides:

"Sec. 15. (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within x x x three months for all other lower courts.

"(2) A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the Rules of Court or by the court itself."

¹⁶ 333 Phil. 20, December 2, 1996, per Puno, J.

¹⁷ TSN, September 23, 1997, pp. 11-12 & 14; TSN, November 12, 1997, pp. 29 & 33.

¹⁸ TSN, August 6, 1998, pp. 7-8.

¹⁹ People v. Sarabia, 376 Phil. 32, October 29, 1999.

²⁰ Appellee's Brief, p. 26, citing People v. De los Reyes, 229 SCRA 439, January 21, 1994. See also §5 of Rule 110 of the New Rules of Criminal Procedure and People v. Vergara, 221 SCRA 560, April 28, 1993.

²¹ People v. Rabanal, 349 SCRA 655, January 19, 2001; People v. Cario, 351 Phil. 644, March 31, 1998; People v. Baniel, 341 Phil. 471, July 15, 1997.

²² People v. Peralta, 350 SCRA 198, January 24, 2001.

²³ See Ibn-Tamas v. US, 477 A.2d 626, 1979 DC App. LEXIS 457; McLuckie v. Abbott, 337 F.3d 1193; 2003 US App. LEXIS 15240; DePetris v. Kuykendall, 239 F.3d 1057; 2001 US App. LEXIS 1062; State v. Kelley, 478 A.2d 364 (1984); McMaugh v. State, 612 A.2d 725 (RI 1992); State v. Frost, 577 A.2d 1282 (NJ Super. Ct. App. Div. 1990); State v. Gallegos, 719 P.2d 1268 (NM Ct. App. 1986); R. v. Lavallee (1990) 1 SCR; Reilly v. The Queen, (1984) 2 SCR 396.

²⁴ Symposium on Domestic Violence. Article: "Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law," LEXSEE 21 Hofstra L. Rev. 801 (Summer 1993), 1161.

²⁵ McMaugh v. State, 612 A.2d 725, 731, quoting L. Walker, The Battered Woman, at XV (1979).

²⁶ People v. Torres, 128 Misc2d, 129, 488 NYS2d 358; McMaugh v. State, 612 A.2d 725.

²⁷ Walker, Lenore, The Battered Woman Syndrome (1984), pp. 95-96. Dr. Walker, a clinical psychologist, is an acknowledged expert on BWS in the United States. She is a pioneer researcher in the field. In this book, she reports the results of her study involving 400 battered women. Her research was designed to test empirically the theories expounded in her earlier book, The Battered Woman (1979). In 1989, she also wrote Terrifying Love: Why Battered Women Kill and How Society Responds.

²⁸ Walker, Terrifying Love: Why Battered Women Kill and How Society Responds (Harper Perennial, 1989), p. 42.

²⁹ Ibid. See also R. v. Lavallee, supra; Ibn-Tamas v. US, supra.

³⁰ Ibid.

³¹ Ibid.

³² TSN, August 6, 1998, pp. 12-19.

³³ Exhibits 1 & 1-A; records, p. 44.

³⁴ TSN, August 5, 1998, pp. 14-23, 27-31.

³⁵ TSN, December 16, 1997, pp. 15-17 & 20-21.

³⁶ TSN, May 22, 1998, pp. 2-20.

³⁷ TSN (Arturo Basobas), July 21, 1997, pp. 13, 15 & 21; TSN (Jose Barrientos), December 15, 1997, pp. 17-20; TSN (Junnie Barrientos), December 15, 1997, pp. 35-37; TSN (Ecel Arano), May 22, 1998, pp. 10 & 20.

³⁸ TSN, August 6, 1998, pp. 19-32.

³⁹ TSN, January 15, 2001, pp. 37-38.

⁴⁰ Id., pp. 51-53.

⁴¹ Id., p. 36.

⁴² Exhibits "G"-"G-3" - Appellant.

⁴³ Ibid.

⁴⁴ In R. v. Lavallee, supra.

⁴⁵ Ibid.

⁴⁶ Fiona E. Raitt and M. Suzanne Zeedyk, The Implicit Relation of Psychology and Law: Women and Syndrome Evidence, pp. 66-67 (Exh. D).

⁴⁷ Walker, Terrifying Love, p. 47.

⁴⁸ TSN, January 15, 2001, p. 18.

⁴⁹ Id., p. 20.

⁵⁰ TSN, February 9, 2001, pp. 11-13.

⁵¹ Id., p. 14.

⁵² Walker, Terrifying Love, p. 48.

⁵³ Id., pp. 49-50.

⁵⁴ Ibid.

⁵⁵ Dr. Lenore Walker's testimony before the court in Ibn-Tamas, supra.

⁵⁶ Psychologist Nancy Kaser-Boyd testifying as an expert on the battered woman syndrome in Depetris, supra.

⁵⁷ Dr. Lenore Walker's testimony before the court in Ibn-Tamas, supra.

⁵⁸ Her biological parents lived separately.

⁵⁹ State v. Kelly, 655 P.2d 1202, 1203 (1982).

⁶⁰ "The case would rise or fall on whether . . . [appellant] acted in actual fear of imminent harm from her husband when she shot [or injured] him . . . ." Depetris v. Kuykendall, supra. See also People v. Torres, 128 Misc2d 129, 488 NYS.2d 358.

⁶¹ People v. PO3 Langres, 375 Phil. 240, 258, October 13, 1999.

⁶² See also People v. Plazo, 350 SCRA 433, January 29, 2001; People v. Cario, 351 Phil. 644, March 31, 1998; People v. Timblor, 348 Phil. 847, January 27, 1998.

⁶³ People v. Saul, 372 SCRA 636, December 19, 2001.

⁶⁴ People v. Galapin, 355 Phil. 212, July 31, 1998; People v. Panes, 343 Phil. 878, August 29, 1997.

⁶⁵ State v. Gallegos, 104 NM 247, 719 P.2d 1268, citing Eber, The Battered Wife's Dilemma: To Kill or To Be Killed, 32 Hasting LJ 895, 928 (1981).

⁶⁶ Id., citing State v. Walker, 40 Wash.App. 658, 700 P.2d 1168 (1985).

⁶⁷ People v. Saul, supra.

⁶⁸ People v. Bato, 348 SCRA 253, December 15, 2000.

⁶⁹ People v. Maquiling, 368 Phil. 169, June 21, 1999; People v. Discalsota, GR No. 136892, April 11, 2002.

⁷⁰ Exhibits "B" et seq. - Appellant, p. 10.

⁷¹ TSN, February 9, 2001, p. 19.

⁷² Id., pp. 15-17.

⁷³ Id., p. 54.

⁷⁴ "Art. 13. Mitigating Circumstances. – The following are mitigating circumstances:

x x x       x x x       x x x

"9. Such illness of the offender as would diminish the exercise of the will-power of the offender without however depriving him of the consciousness of his acts."

⁷⁵ "10. And, finally, any other circumstances of a similar nature and analogous to those above mentioned."