Crim Law Cases 2

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THIRD DIVISION

[G.R. No. 141749. April 17, 2001]

FLORENCIO DEL ROSARIO, peti tioner, vs., PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O N

GONZAGA-REYES, J.:

This is a petition for review on certiorari of the decision[1]of the Court of Appeals, dated September 29, 1999, which affirmed in

toto the judgment[2]of the Regional Trial Court, Branch 24, Cabugao, Ilocos Sur, finding petitioner Florencio Del Rosario guilty

beyond reasonable doubt of homicide and sentencing him to an indeterminate penalty of six (6) years and one (1) day ofprision

mayor, as minimum, up to twelve (12) years and one (1) day ofreclusion temporal, as maximum, and ordering him to pay the heirs of

Remy Sinco, the amount of P50,000.00 as death indemnity.

Petitioner Florencio together with Edilberto, Alejandro, Emilio, Antonio (all surnamed Del Rosario) and Tomas Abolero were

charged with murder in an information,[3]filed on November 8, 1993 by the provincial prosecutor, which alleged

That on or about the 7th day of August, 1993, in the municipality of Cabugao, province of Ilocos Sur, Philippines, and within the

jurisdiction of the Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one

another, with treachery and evident premeditation and with intent to kill, did then and there willfully, unlawfully and feloniously

assault, attack and shoot with the use of illegally possessed firearms one Remy Sinco, thereby inflicting upon the latter mortal wounds

on his body, which wounds necessarily produced the death of said Remy Sinco.

CONTRARY TO LAW.

Upon arraignment on May 18, 1994, all the above-named accused, assisted by their counsel, entered a plea of not guilty to the

crime charged.[4]Thereafter, trial ensued with the prosecution presenting Lorna Sinco, the victims spouse; Oliver, his son; Edgar, his

nephew; Dr. Rudy Singson, Rural Health Physician; and Rodolfo Somera, Chief Investigator of the Cabugao Police Station, as its

witnesses. Their testimonies as summarized by the trial court and adopted by the appellate court are as follows:

On the night of August 7, 1993, at about 9:00 oclock, the late Remy Sinco, together with his common -law wife, Lorna Sinco, their

child Oliver Sinco and their nephew Edgar Sinco, went to the seashore at Brgy. Pug-os, Cabugao, Ilocos Sur, to buy fish; that theypassed by the house and yard of accused Emilio del Rosario where all the six (6) accused were drinking liquor; that Remy Sinco made

the usual greeting addressed to accused Florencio del Rosario, saying: We will pass by, cousin, to which Florencio del Rosario

replied: Yes, cousin; that Remys group proceeded on their way to buy fish at the seashore; that after buying fish, they took the

same route on their way home; that upon reaching the place where the accused were drinking liquor, all of a sudden, accused Emilio

del Rosario, Alejandro del Rosario, Antonio del Rosario and Tomas Albolero held Remys arms and shoulders, after which accused

Florencio del Rosario and Edilberto del Rosario shot Remy Sinco at point-blank range; that Remy slumped, while his common-law

wife, son and nephew ran towards the national highway to call for help; that while running away, they still heard three (3) successive

shots; that eventually, policemen from Cabugao, Ilocos Sur, arrived to retrieve the body of Remy Sinco at a place about thirty (30)

meters south of the place where the accused were drinking liquor and where Remy Sinco was allegedly accosted and shot to death.[5]

On the other hand, the defense interposed a different version of the incident. Petitioner Florencio Del Rosario admitted killing

the victim but disclaimed liability by invoking self-defense. According to him, he had been shot at first, before he shot the victim. Al

the other accused, namely, Edilberto, Emilio, Alejandro, Antonio (all surnamed Del Rosario) and Tomas Albolero denied any

participation in the killing of Remy Sinco. The version of the defense was synthesized by the trial court as follows:Accused Florencio del Rosario claimed that he, alone, killed the deceased in an act of self-defense. He testified that the deceased and

his companions, namely: Nelson Sayo, Oliver Sinco and Edgar Sinco, but without the victims common-law wife, Lorna Sinco, were

on their way to the seashore when Remy Sinco stopped at the place where they were drinking liquor and hurled invectives at him; that

his companions, notably Alejandro del Rosario, pacified them when they had a heated exchange of words; that thereafter, the deceased

and his companions proceeded on their way towards the seashore; that when they returned, Remy Sinco dropped by the same place

and let his companions go ahead; that he had conversation with the accused for about thirty (30) minutes, after which the deceased

requested Florencio del Rosario to conduct him home; that Florencio del Rosario obliged and while they were on their way towards

the south, Florencio observed that Remys companions were waiting at a distance of about eight (8) meters; that as a precauti onary

measure, Florencio del Rosario stepped back and moved away from Remy Sinco; that it was at this juncture that Remy Sinco turned

around and fired his gun at Florencio del Rosario three (3) times, but only one (1) shot found its mark; that when Florencio felt that he

was hit on his right leg, he dropped to, and rolled on the ground, drew his gun and fired at Remy Sinco who, it turned out, was fatally

hit.[6]

On the basis of the testimonial and documentary evidence on record, the trial court rendered judgment convicting petitioner

Florencio Del Rosario of homicide not murder, and acquitting all his other co-accused on the ground that conspiracy amongst them in

perpetuating the killing of Remy Sinco was not proven beyond reasonable doubt. As mentioned earlier, the Court of Appeals affirmed

the findings of the trial court that the evidence for the defense failed to establish the justifying circumstance of self-defense

particularly, the defense failed to prove unlawful aggression on the part of the victim and the reasonable necessity of the means

employed to prevent or repel the unlawful aggression.

Hence, the instant petition, on the ground that the Court of Appeals gravely abused its discretion in:

a. HOLDING THAT PETITIONER FAILED TO PROVE SELF-DEFENSE;

b. SUSTAINING THE FINDING OF THE TRIAL COURT WHICH OVERLOOKED, MISUNDERSTOOD AND

MISAPPLIED SOME FACT OR CIRCUMSTANCE OF WEIGHT AND SUBSTANCE THAT COULD HAVE AFFECTED THE

RESULT OF THE CASE.[7]
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Petitioner argues that he acted justifiably and reasonably in defending himself against an assailant who had already wounded

him; he insists that he was first shot in the leg by the deceased; that after being wounded, he cannot be expected to act calmly and just

think of maiming the deceased.

After a careful examination of the evidence and study of the records on hand, the Court finds no merit in the petition.

Both the trial and appellate courts found petitioner Florencio Del Rosarios self-defense theory unbelievable. To begin with

petitioner failed to consider that where an accused invokes self-defense to prove that he killed the victim to save his life, the burden of

proof is shifted to him.[8]He must rely on his own evidence and not on the weakness of the prosecution.[9]Having admitted the killing

it became his inescapable burden to prove clearly and convincingly the elements of unlawful aggression on the part of the victim,

reasonable necessity of the means employed to prevent or repel the aggression, and lack of sufficient provocation on the part of the

person defending himself.[10]This, petitioner failed to do.

First of all, on the witness stand, petitioner narrated that there existed between him and the victim, Remy Sinco, ill-feelings way

back in 1992, because the former refused to give protection to the latters plan to set up illegal gambling in Manila. On the day the

victim met his untimely death, the two of them had a heated altercation because the victim insulted him. Despite the rancor which

existed between them, petitioner testified that Remy asked to be taken home that very same day. On the way home, Remy allegedly

shot at his foot and he retaliated, killing him. The said version runs counter to human experience and behavior. It was very unlikely

that Remy would ask petitioner to take him home when they were not in good terms and just had a heated altercation; added to this

was the fact that Remy knew that petitioner was a member of the Philippine National Police and was licensed to carry a firearm.

Secondly, petitioners testimony on the alleged initial assault by the victim was not corroborated by any of the defense

witnesses. The entire incident was established solely by petitioners testimony. Finding that petitioner failed to prove unlawfu

aggression on the part of the victim, the trial court aptly observed thus:

In the present case, the accused endeavored to show that the deceased was the unlawful aggressor when he turned around, drew his

gun and fired at the accused three (3) times, hitting his right leg. But, curiously enough, no gun was recovered from the deceased and

there must be truth to the allegation of the three (3) prosecution witnesses that the deceased was not armed with a gun on that fateful

night. Otherwise, the accused should have exerted effort to retrieve the gun allegedly wielded by the deceased and preserve it forevidentiary purposes. But in order to dispel any doubt, reference may be made to the entry in the police blotter (Exh. J -1) showing

that the police investigators recovered two (2) empty shells fired from a .45 caliber handgun and one (1) misfired ammunition for the

same caliber. What was issued to accused Florencio Del Rosario as his service firearm was a .45 caliber Ithaca pistol with Serial No.

1961874 (Exh. 6-c). No other empty shell was recovered at the scene of the crime.

Indeed, all the witnesses for the defense, excluding herein petitioner, numbering thirteen (13) testified as to matters which took

place before or after the shooting. True, petitioner had a gunshot wound which he claimed resulted from the initial assault by the

victim. However, the assertion that the victim had a gun fails in light of the testimony of the three prosecution witnesses that Remy

was unarmed which was corroborated by SPO4 Rodolfo Somera, Chief Investigator of the Cabugao Police Station, who went to the

scene of the crime to investigate and did not see nor recover any gun from the victim. Added to this is the fact that shells recovered

from the crime scene were found to have been fired from a .45 caliber firearm matching the firearm issued to petitioner. It has been

held that the plea of self-defense cannot be justifiably entertained where it is not only uncorroborated by any separate competent

evidence but is also extremely doubtful in itself.[11]

Thirdly, the lower court did not err in rejecting petitioners theory of self-defense considering the nature and number of gunshotwounds on the victim. The victim Remy Sinco suffered eight (8) gunshot wounds on the head, neck, chest, stomach, right arm

and right leg. Verily, the nature, location and number of the wounds sustained by the victim made petitioners theory of self-defense

implausible.[12]Dr. Rudy M. Singson who conducted the post-mortem examination on the victim revealed that four (4) out of the eight

(8) gunshot wounds sustained by the victim could have caused his instantaneous death.[13]If petitioner shot the victim just to defend

himself, it defies reason why he had to pump several bullets on the head, chest and stomach of the victim which clearly manifest a

deliberate and wanton intention to kill the latter. In fine, unlawful aggression and reasonable necessity of the means employed to repe

the same which are elements of self-defense were not established.

We agree with the trial court that the crime committed by the petitioner is homicide, not murder, because the qualifying

circumstances of treachery and evident premeditation were not proven. Treachery could not be appreciated against petitioner

considering that no evidence was presented to show that the accused consciously and deliberately adopted a mode of attack intended

to ensure the killing without risk to the accused .[14]The evidence does not show that the accused made some preparation to kill the

victim in such manner as to insure the execution of the crime or to make it impossible or hard for the person attacked to defend

himself.[15]Neither could evident premeditation be appreciated considering there is no evidence as to when and how petitioner planned

and prepared for the killing of the victim.[16]

In the absence of any qualifying circumstance, the crime committed was homicide, the penalty for which under Art. 249 of the

Revised Penal Code is reclusion temporal. As there was one mitigating circumstance of voluntary surrender as found by the lower

courts, and no aggravating circumstance, the penalty should be fixed in its minimum period.[17]Applying the Indeterminate Sentence

Law, petitioner Florencio Del Rosario should be sentenced to an indeterminate penalty, the minimum of which is within the range o

the penalty next lower in degree, i.e. prision mayor, and the maximum of which is that properly imposable under the Revised Penal

Code, i.e. reclusion temporalin its medium period.[18]The penalty imposed by the trial court is within said range, hence, we sustain it.

Finally, in accordance with current jurisprudence, we sustain the death indemnity in the amount of P50,000.00.[19]

WHEREFORE, the questioned decision of the Court of Appeals sustaining that of the trial court, is AFFIRMED.

SO ORDERED.

Melo, (Chairman), Vitug, Panganiban, and Sandoval-Gutierrez, JJ.,concur.
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EN BANC

[G.R. No. 129051. July 28, 1999]

PEOPLE OF THE PHILIPPINES, Plain tif f-Appellee, vs. ROMEO MOLINA y FLORES, Accused-Appellant.D E C I S I O N

ROMERO, J.The present case is one for murder brought before us on automatic review, the capital punishment of death having been imposed by

the trial court. Accused-appellant, Romeo Molina, was indicted for the crime of murder allegedly committed as follows:

That on or about the 14th day of July, 1995 at barangay D Alarcio, municipality of Laoac, province of Pangasinan and within the

jurisdiction of this Honorable Court, the said accused, with intent to kill and with treachery, did then and there wilfully, unlawfully

and feloniously attack, hit and stab DOMINGO FLORES with the use of a stone and knife, inflicting to said victim the following

injuries:

EXTERNAL FINDINGS:

- Contusion + lacerated wound 0.5 cm. over the left eyebrow

- Contusion + lacerated wound V-shape over the right parieto temporal area

- Contusion + lacerated wound over the occipital area

- Deep lacerated wound 2 cm. over the ant. neck area

- (+) Subcuteous emphysema base cervinal area

INTERNAL FINDINGS:

- Depressed Fracture over the occipital bone with minimal bleeding

- Linear fracture over the right parieto tempral bone

which injuries being mortal caused the death of said Domingo Flores to the damage and prejudice of his heirs.

CONTRARY to Article 248, Revised Penal Code.1

On arraignment, accused-appellant with the assistance of counsel entered a plea of not guilty and after trial, Judge Joven F. Costales of

Branch 45 Regional Trial Court of Urdaneta, Pangasinan rendered the decision2now under review, the decretal portion of which

reads:

WHEREFORE, in view of all the foregoing, this Court finds the accused ROMEO MOLINA y Flores GUILTY beyond reasonable

doubt of the crime of MURDER defined and penalized under Republic Act No. 7659 otherwise known as the Heinous Crime Law, the

offense having been committed with the attendant aggravating circumstance of dwelling and hereby sentences him with the ultimum

supplicium of DEATH to be executed pursuant to Repbulic Act No. 8177 known as the Lethal Injection Law and to pay the heirs of

the victim DOMINGO FLORES in the amount of P50,000.00 as indemnity; P40,000.00 as actual damages; P200,000.00 as moraldamages; and to pay the costs.

Finally, it is said:

Dura lex, sed lex, translated as The law is harsh, but that is the law!

SO ORDERED.3

The facts, as culled from the evidence of the prosecution are as follows:

On July 14, 1995, at around 10:00 oclock in the evening, Domingo Flores was asleep in his house in DAlarcio, Laoac, Pangasinan. His

daughter, Melanie, who was then listening to the radio, was the only one in the household still awake at that time. Hearing a sound,

she saw accused-appellant, her fathers cousin, barging in through the kitchen door and going straight to her fathers room. She peeped

through a curtain and saw accused-appellant hitting her sleeping father on the head with a stone the size of a fist and afterwards

stabbing him in the neck and eyebrow with a knife. She was able to recognize her uncle as her fathers assailant because there was a

lamp near her fathers head at the time of the attack. Afraid that she too would be harmed, Melanie did not immediately come to her

fathers aid and instead watched as accused-appellant made good his escape. It was only after Molina had left that she hastened to call

her grandfather, Eufrosinio Flores, who lived nearby.4

Responding to Melanies cries, Eufrosinio found his son on the bed soaked in hisown blood. As Eufrosinio lifted his son onto his lap, Domingo, fatally wounded and bleeding, told his father that it was his insan

Romy who stabbed him. Hours later, Domingo died from his injuries while being transferred to another hospital .5Post-mortem

findings revealed that the cause of his death was severe intracranial bleeding secondary to skull fracture and blood loss due to a stab

wound on the neck.6crlwvirtualibrry

On his part, Molina interposed the defense of alibi to exculpate himself from liability. According to him, on July 14, 1995, he left his

house in Cabilaoan, Laoac, Pangasinan at around three oclock in the afternoon to borrow the plow of his uncle, Martin Molina, who

lived in Manaoag, Pangasinan. When he was returning home after getting the plow, he met the victim Domingo Flores and Orlando

Fernandez. Suddenly and without any provocation, the two who appeared drunk at the time, took turns mauling him. Thereafter, he

hailed a tricycle and told the driver to take him to the Don Amadeo Perez, Sr. Memorial Hospital in Urdaneta, Pangasinan where his

injuries were cleaned and treated. The attending physician, Dr. Noel Obedoza, recommended that Molina be confined but the latter

refused, saying he had no money.
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According to the accused-appellant, he stayed in the hospital waiting area up to eleven oclock in the evening of July 14, 1995 until a

nursing attendant in the said hospital, Alejandro Duyag, took pity on him and brought him to the latters house where he spent the

night. Molina claimed that he has since stayed with Duyag for about a month as he did not want to go home for fear that his attackers

would harm him again. During his stay with Duyag, he worked for the latter as farm helper. Accused-appellant further denied having

had anything to do with the death of Domingo Flores, claiming that he only learned of the killing more than a month later. He likewise

said that prior to July 14, 1995, there was no bad blood between him and the victim. In fact, he said, Domingo was like a father to him

and he saw no reason why the victims family would make any false accusations against him.7crlwvirtualibrry

To corroborate the foregoing testimony of the accused-appellant, the defense presented Dr. Noel Obedoza8and Alejandro Duyag,

Sr.9Moreover, the policeman who prepared the investigation report based on the police blotter entry regarding the killing of Domingo

Flores and the investigating officer assigned to the case were likewise called as witnesses to establish certain inconsistencies in the

initial statements of Melanie and Eufresinio.10crlwvirtualibrry

Article 248 of the Revised Penal Code as amended by Republic Act No. 7659 states that:

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.

xxx.

In the case at bar, the identity of Domingo Flores killer is not unknown. The records show that accused-appellant was positively

identified as the assailant, not only by Domingos daughter Melanie, who witnesses the stabbling, but also by the victim himself while

the latter was in the throes of death.

The requisites for the admissibility of dying declaration have already been established in a long line of cases. Thus, in the case at bar,

the victims ante-mortem statement is entitled to much probative weight since it has been proven that: (1) at the time the declaration

was made, death was imminent and the declarant was conscious of that fact; (2) the declaration refers to the cause and surrounding

circumstances of such death; (3) the declaration relates to facts which the victim was competent to testify to; (4) the declarantthereafter died; and (5) the declaration is offered in a criminal case wherein the declarants death is the subject of the inquiry.

Indeed, a dying declaration is entitled to the highest credence because no person who knows of his impending death would make a

careless and false accusation. Thus, it has been held that when a person is at the point of death, every motive of falsehood is silenced

and the mind is induced by the most powerful consideration to speak the truth.11crlwvirtualibrry

Accused-appellant attempted to exculpate himself from liability by pointing out certain inconsistencies between the sworn statements

and the testimonies of Melanie and Eufrosinio. In Melanies sworn statement, she said that she saw accused-appellant stab her father

that fateful night of July 14, 1995. However, she testified in court that she saw Molina hit her father twice in the head with a stone

before stabbing him on the left eyebrow and neck. Eufresinio, on the other hand, averred in his sworn statement that Domingo, making

his dying declaration, pointed to Molina as his assailant, in the jeepney while the victim was being brought to the hospital; in his

testimony, however, Eufresinio clarified that the dying declaration was made while they were still in Domingos house right after the

latter was stabbed.

To our mind, these inconsistencies do not affect the credibility of the said witnesses. For one, accused-appellant himself admitted in

open court that prior to July 14, 1995, there was never any bad blood between him and Domingo and that he saw no reason why thelatters family would make false accusations against him. Moreover, the alleged discrepancies may well be due to the fact that at the

time the sworn statements of the witnesses were taken, they were still in a state of grief and shock, which explains why they were not

able to relate accurately the events that transpired on the night of the killing. Likewise, it should be noted that the sworn statements of

the said witnesses were prepared by police investigators and misapprehension by the latter of the facts related by the witnesses cannot

be discounted. In any case, the records bear out the fact that during the trial, both Melanie and Eufresinio were able to clarify their

averments in their respective sworn statements and despite the gruelling cross-examination, they managed to consistently and credibly

maintain their version of what actually happened.

It should be reiterated that discrepancies between the affidavit of a witness and his testimony in court do not necessarily discredit him

because it is a matter of judicial experience that affidavits, being taken ex-parte, are almost always incomplete and often

inaccurate.12Besides, as the lower court cited, the testimonial discrepancies could have been caused by the natural fickleness of

memory which tends to strengthen, rather than weaken credibility as they erase any suspicion of rehearse testimony.13Furthermore, as

this Court has time and again observed, it is when the testimony appears totally flawless that a court may entertain misgivings on its

veracity. In fact, certain minor variances in the details of a witness account, more frequently than not, can be badges of truth rather

than indicia of falsehood, and they often bolster the probative value of the testimony.14crlwvirtualibrry

Moreover, well entrenched is the rule that inconsistencies and discrepancies in the testimony of witnesses, when referring only to

minor details and collateral matters, do not affect either the substance of their declaration, their veracity, or the weight of their

testimony. Although there may be inconsistencies on minor details, the same do not impair the credibility of the witness where there is

consistency in relating the principal occurrence and positive identification of the assailant, as in the case at bar.15crlwvirtualibrry

With respect to the accused-appellants defense of alibi, suffice it to say that denials and alibis, unsubstantiated by clear and convincing

evidence, are negative and self-serving and deserve no probative weight especially in light of the testimonies of credible witnesses

who have positively identified the accused as the assailant. In addition, it has been held that for an alibi to prevail, the defense must

establish by positive, clear and satisfactory proof that it was physically impossible for the accused to have been at the scene of the

crime at the time of its commission, and not merely that the accused was somewhere else,16as Molina claimed in this case. Accused-

appellant himself admitted on the witness stand that from the hospital where he was treated for his injuries, he could have easily taken

a tricycle ride to get to the victim's house.17crlwvirtualibrry
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This Court has had occasion to rule that alibi is one of the weakest defenses an accused can invoke, and the courts have always

received it with caution, if not suspicion, not only because it is inherently unreliable but likewise because it is rather easy to

fabricate.18crlwvirtualibrry

As to the manner in which Molina killed the victim, the same was undoubtedly attended by treachery since the accused attacked

Domingo while the latter was asleep and unable to defend himself. There is alevosia where the attack was sudden and unexpected,

rendering the victim defenseless and ensuring the accomplishment of the assailants evil purpose without risk to

himself.19crlwvirtualibrry

Likewise, the generic aggravating circumstance of dwelling was properly appreciated by the trial court, considering that Molina

purposely entered the victims abode with the intention to kill him. Article 14 (5) of the Revised Penal Code provides that where the

crime was committed in the dwelling of the offended party and the latter has not given any provocation, the same is considered an

aggravating circumstance. As Viada puts it, The home is a sort of sacred place for its owner. He who goes to anothers house to slander

him, hurt him or do him wrong, is more guilty than he who offends him elsewhere .20crlwvirtualibrry

It should be emphasized that for dwelling to be appreciated as an aggravating circumstance, there must have been no provocation on

the part of the victim. The provocation contemplated here is one that is sufficient and immediate to the commission of the crime. In

other words, the invasion of the privacy of the offended partys house must have been the direct and immediate consequence of the

provocation given by the latter as where, for example, the accused and the victim quarelled in front of the latters house and the

accused, in a fit of rage entered the victims house and proceeded to stab him.21Such is not the situation in the case at bar because the

killing in the victims house occurred at least six hours after the accuseds mauling.

There is, however, the mitigating circumstance of vindication of a grave offense to offset the generic aggravating circumstance of

dwelling. As the records show, accused-appellant was treated for injuries he sustained when he was mauled in the afternoon of July

14, 1995 and the prosecution did not offer anny rebuttal evidence to deny the allegation that Domingo was one of the men who beat up

Molina. Indeed, that accused-appellant was mauled for no apparent reason by someone who looked up to as a father understandably

engendered a strong feeling of vengeance on his part. Sadly, however, he chose to take the law into his own hands to sate his thirst for

revenge.WHEREFORE, in view of the foregoing, the judgment of the trial court convicting the accused for murder is hereby AFFIRMED

with the MODIFICATION that the penalty is reduced from death to reclusion perpetua, the generic aggravating circumstance of

dwelling having been offset by the mitigating circumstance of vindication of a grave offense.

No costs.

SO ORDERED.
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EN BANC

[G.R. No. 130010. May 26, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICENTE RABANILLO y MAGALONG, accused-appellant.

D E C I S I O N

DAVIDE, JR., C.J.,

Accused-appellant Vicente Rabanillo (hereafter RABANILLO) was charged before the Regional Trial Court of Dagupan City,

Branch 43, with the crime of murder in an information [1]whose accusatory portion reads:

That on or about August 9, 1996, at 5:00 oclock in the afternoon at barangay Amansabina, municipality of Mangaldan, province of

Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bladed samurai,

with intent to kill, with treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously hack RAUL

MORALES y Visperas, thereby causing his death thereafter due to:

INTRA THORA-ABDOMINAL HEMORRHAGE, sec. to open wound of the back

THORA HEPATIC HEMORRHAGE, sec. to incised wounds

as per Medico-Legal Report issued by Dr. Reynaldo C. Gabriel, M.D., RHU of Mapandan [sic], Pangasinan, to the damage and

prejudice of the heirs of Raul Morales y Visperas.

CONTRARY to Art 248 of the Revised Penal Code, as amended by R.A. [No.] 7659.

Later, RABANILLO filed a motion denominated Plea Bargaining Offer[2]stating his willingness to enter a plea of guilty to

the crime of homicide. This motion was met with vehement objection[3]from the prosecution and was eventually denied[4]by the tria

court. Upon arraignment, the appellate entered a plea of not guilty[5]to the charge of murder.

The undisputed facts[6]are as follows:

In the afternoon of 9 August 1996, appellant RABANILLO; the victim Raul Morales (hereafter MORALES); prosecution

witnesses Perfecto Suarez, Samuel Magalong, and Ramil Morales; and several other persons were having a drinking spree at the store

of Narcisa Morales, mother of MORALES, at Barangay Amansabina, Mangaldan, Pangasinan. At about 5:00 p.m., a certain Willy

Vito, one of the participants in the drinking session, took a bath at the artesian well nearby and jokingly doused Suarez withwater. The latter tied to retaliate but failed; he thus ran after the others and splashed them with water.

RABANILLO joined the game. He filled with water and tried to pour its content at someone, but drenched MORALES

instead. The latter reprimanded the former because water got into his ear. A heated argument between the two ensued and culminated

into a fistfight. The two were eventually pacified by cooler heads and were ushered to their respective houses, which were just abou

15 meters apart. The others milled around by the road.

As to what transpired next, the prosecution and the defense had different versions.

The evidence for the prosecution reveals that half an hour after the fisticuff while MORALES, Suarez, and one Mauro Pascua

were having a conversion in the terrace of the house of MORALES, RABANILLO went out of his house wielding a one-meter

samurai. RABANILLO went straight to MORALES and hacked him. Instinctively, the latter parried the blow, but he was hit on his

right hand. When he attempted to run away, he tripped and fell down to the ground. At this point, RABANILLO hacked him two

times more, hitting at his back and left shoulder. That same day, MORALES drew his last breath.[7]

On the other hand, the defense presented the following version:

A while later appellant heard Raul Morales, then in the terrace of their house that is beside appellants house, shouting and challenginghim to come out. Forthwith, appellant, irked by the challenged, emerged from his house with a bolo on hand and attacked Raul

Morales and killed him in the process. Thereafter, accompanied by the barangay captain, he went to the Town hall of Mangaldan,

Pangasinan, and surrendered.[8]

In its decision[9]of 14 July 1997, the trial Court noted that when RABANILLO took the witness stand, he offered his testimony

to prove the mitigating circumstances of passion and obfuscation, drunkenness, and voluntary surrender and that he was not, therefore,

denying having killed MORALES. It then limited the issues to the presence of such mitigating circumstances, as well as of the

aggravating circumstances of treachery, evident premeditation, and abuse of superior strength.

The trial court ruled out treachery, reasoning that the victim had been forewarned of the evil intention of RABANILLO when the

latter went out of his house armed with a samurai bolo; besides, the initial attack was frontal. It, however, appreciated evident

premeditation as a qualifying circumstance because the period of 45 minutes which elapsed between the time the fight was brok en up

and the time RABANILLO decided to kill MORALES was sufficient period of time to ponder with cold neutrality on what to do in

the premises, whether to do a righteous act or to pursue a criminal overt act despite knowledge of its evil consequences. After the

lapse of that period, RABANILLO still clung to his evil intention and hacked MORALES to death. The trial court also appreciated

the aggravating circumstance of abuse of superior strength because, aside from the fact that RABANILLO had a bulkier and

strong[er] body physique as compared to victims slimmer/thinner body, he still armed himself with a samurai bolo to insure the

preparation of his evil intention.

RABANILLOs claim of the attenuating circumstance of passion and obfuscation was not considered. The trial court was not

convinced that MORALES had inflicted bodily injury against RABANILLO; if ever the latter sustained injuries, they were incurred

when MORALES and RABANILLO were engaged in a fisticuff. It noted that the fight was ignited by RABANILLO when he poured

water into the ear of MORALES. The trial court also debunked RABANILLOs claim of intoxication for lack of evidence. I

likewise refused to give the benefit of the mitigating circumstance of voluntary surrender, holding that RABANILLOs own test imony

that it was the barangay captain who went to RABANILLOs house and brought him to the police station belied his claim that he

voluntarily surrendered.

Accordingly, the trial court convicted RABANILLO for the crime of murder and decreed as follows:
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WHEREFORE, the Court finds accused Vicente Rabanillo y Magalong GUILTY beyond reasonable doubt of the felony of MURDER

defined and penalized under Article 248 of the Revised Penal Code as amended by R.A. 7659, attended by the qualifying aggravating

circumstance of evident premeditation and generic aggravating circumstance of taking advantage of superior strength and

conformably to law, the Court sentences him to suffer the capital penalty of reclusion perpetua to DEATH.

Further, the COURT orders the accused to pay Narcisa Morales (mother of Raul Morales) the following, to wit:

1) P50,000.00 as indemnity;

2) P30,000.00 as moral damages;

3) P20,000.00 as exemplary damages;

4) P41,024.70 representing actual and compensatory damages;

5) P10,000.00 as attorneys fees;

6) And costs.

The Provincial Warden of Pangasinan is ordered to commit the person of accused VICENTE M. RABANILLO to the National

Penitentiary in Muntinlupa, Metro Manila, immediately without any unnecessary delay.

SO ORDERED.

Hence, RABANILLO appealed the decision to this Court contending that the trial court erred (1) in finding that the killing of

MORALES was qualified by evident premeditation; and (2) in not finding that he is entitled to the mitigating circumstance of passion

and obfuscation, intoxication, and voluntary surrender.

Anent the first assigned error, RABANILLO maintains that it was only when MORALES and his friends started taunting him

You come out, Tanod Commander, that he, in a fit of anger, emerged from his house and attacked MORALES. The killing was no

planned, and there was no sufficient time for meditation and reflection on the nature and consequence of his act.

As to the second assigned error, RABANILLO asseverates that he should be given the benefit of the mitigating circumstances of

passion and obfuscation, drunkenness, and voluntary surrender. The words You come out, Tanod Commander are enough to make

one, especially a barangay folk who is characteristically sensitive, blinded by passion. Moreover, having imbibed liqour from 2:00 to

5:00 p.m., he must have been surely drunk to be so sensitive to accept the victims challenge. After killing the victim, he voluntarilywent with the Barangay Captain to the police station to surrender and willingly obliged to be committed in jail even without a warran

of arrest or an information against him.

In its Brief, the Office of the Solicitor General (OSG) recommends that RABANILLO be convicted to homicide only, not

murder, in that the qualifying circumstance of evident premeditation was not present and that the aggravating circumstance of abuse of

superior strength, which was correctly appreciated by the trial court, was not alleged in the information. It agrees with the trial cour

in all other respects.

We agree with the trial court in ruling out treachery. The evidence shows that MORALES was facing towards the direction

where RABANILLO came from.[10]He must then have caught sight of the latter, who was approaching him with a samurai in his

hands. Considering that a fight between them had just taken place. MORALES knew or must have known that he would be the targe

of RABANILLOs attack. Since he was still about 10 meters[11]away from RABANILLO, he had an opportunity to escape or avoid

the assault. Hence, it cannot be said that treachery attended the commission of the crime.

However, we are of one mind with the OSG and RABANILLO that evident premeditation was wanting in the commission of the

crime. For evident premeditation to be considered, the following elements must be established: (1) the time when the offenderdetermined to commit the crime; (2) an act manifestly indicating that the offender has clung to his determination; and (3) sufficien

lapse of time between the determination to commit the crime and the execution thereof of allow the offender time to reflect upon the

consequences of his act.[12]The essence of evident premeditation is that the execution of the criminal act is preceded by cool thought

and reflection upon the resolution to carry out the criminal intent within a span of time sufficient to arrive a calm judgment .[13]

In the present case, there is no showing as to the time RABANILLO decided to commit the crime. Even assuming that it was

right after he was escorted to his house that he conceived the idea of killing the victim, evident premeditation cannot be

appreciated. Only 30 minutes[14]intervened between that time and the time he went out of his house to attack MORALES. It has been

held that the lapse of 30 minutes between the determination to commit a crime and the execution thereof is insufficient for full

meditation on the consequences of the act.[15]Additionally, as aptly observed by the OSG, the attending circumstances of the killing

and the external acts of the appellant negate the existence of evident premeditation; thus:

When accused-appellant rushed out from his house, it was just 5:30 in the afternoon. (TSN, April 11, 1997, p. 10) Following

Philippine norm, it would still be daylight or at least there would still be sufficient light to easily see people or happenings. The

persons who were previously drinking were just milling around by the road. (TSN, November 7, 1996, p. 21) Accused-appellant did

not even wait until Raul Morales was alone; he came out of his house with the samurai parallel to his head and directly went straight

to the victim at the time when the latter was conversing with two of his friends. Also, accused-appellant did not even attempt to

disguise his intention by camouflaging his weapon. He raised it high for all to see. Cool thought and calm judgment, there was none

in this case.[16]

Since the qualifying circumstances of treachery and evident premeditation are not present in this case, RABANILLO can be

convicted of homicide only.

We do not agree with the trial court on its finding of the aggravating circumstance of abuse of superior strength. It appreciated

such circumstance because RABANILLO had a bulkier and strong[er] body physique as compared to victims slimmer/thinner

body, and despite thereof he armed himself with a samurai bolo.

There is abuse of superior strength if, as expressly provided by law, the assailant take advantage of his superior strength. It mus

then be established that not only did the assailant enjoy superior strength over the victim, but that he took advantage thereof in the

commission of the crime. That MORALES was slimmer/thinner while Rabanillo was bulkier and strong[er] was not enough proof
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that the letter superior strength. There should have been proof that, indeed, RABANILLOs bulkier physique provided him physical

strength to that of MORALES. It may further be stressed that a man of slimmer/thinner body need not necessarily be physically

weak; he could even be physically stronger than a bulkier person. Moreover, even granting for the sake of argument that

RABANILLO was physically stronger than MORALES, the circumstances in this case fail to convince us that RABANILLO took

advantage of his superior strength.

Now on the mitigating circumstances invoked by RABANILLO.

To prove passion and obfuscation, RABANILLO testified that the group of MORALES shouted at him: You come out, Tanod

Commander. Thereupon, one Meljhones Soriano approached him and held his hands. At this point, MORALES boxed him on

different parts of his body and threw bottles at him. Not contented, the group resumed shouting at him. He was so blinded by their

shoutings that he did not know anymore what happened next.[17]

In his Brief, however, RABANILLO abandoned these allegations that MORALES boxed him and threw bottles at him. He

merely stated that the obfuscation on his part was generated by the victims words, You come out, Tanod Commander, which he

considered a challenge against his person and honor as the chieftanodof the Barangay.

We are not persuaded. Prosecution witnesses Perfecto Suarez and Samuel Magalong were one in saying that MORALES was

just having a conversation with his friends when RABANILLO came out of his house ready to attack. It is significant to note tha

RABANILLO himself testified that Samuel Magalong is the son of RABANILLOs first cousin,[18]and he did not deny Suarez's

testimony that he, RABANILLO, is Suarezs grandfather.[19]Since Magalona and Suarez are RABANILLOs nephew and grandson,

respectively, they would unlikely omit anything in their testimony that would mitigate the liability of RABANILLO. But,

despite their relationship with RABANILLO, they agreed to tell nothing but the truth and helped in giving justice to MORALES, who

was merely a friend and a barriomate.

Suarez and Magalong testified that before the hacking incident, MORALES reprimanded RABANILLO in front of their drinking

mates for dousing him with water, which entered into his ear. RABANILLO resented it and felt humiliated. Hence, a fistfight ensued

but was eventually broken up. The event must have continued to dominate RABANILLOs thought that he decided to strike back at

the victim by hacking him to death. Clearly, the assault was made in a fit of anger.For passion and obfuscation to be mitigating, the same must originate from lawful feelings .[20]The turmoil and unreason tha

naturally result from a quarrel or fight should not be confused with the sentiment or excitement in the mind of a person injured or

offended to such a degree as to deprive him of his sanity and self-control[21]. The excitement which is inherent in all persons who

quarrel and come to blows does not constitute obfuscation.[22]

Moreover, the act producing obfuscation must not be far removed from the commission of the crime by a considerable length of

time, during which the accused might have regained his normal equanimity.[23]Thus, it has been held that where at least half an hour

elapsed between the previous fight and the killing, the accused cannot be given the benefit of the attenuating circumstance of

obfuscation.[24]

In this case, 30 minutes intervened between the fistfight and the killing of MORALES by RABANILLO. The attack cannot

therefore, be said to be the result of a sudden impulse of natural and uncontrollable fury. Having been actuated more by the spirit of

revenge or by anger and resentment for having been publicly berated by MORALES, RABANILLO cannot be credited with the

extenuating circumstance of passion and obfuscation.

Neither can be appreciate in favor of RABANILLO the alternative circumstances of intoxication. To be mitigating, theaccuseds state of intoxication should be proved or established by sufficient evidence.[25]It should be such an intoxication that would

diminish or impair the exercise of his willpower or the capacity to know the injustice of his act .[26]The accused must then show tha

(1) at the time of the commission of the criminal act, he has taken such quantity of alcoholic drinks as to blur his reason and deprive

him of a certain degree of self-control; and (2) such intoxication is not habitual or subsequent to the plan to commit the felony .[27]

It is worthy to note that while RABANILLO was presented to prove drunkenness among other extenuating circumstances, he

merely stated in his testimony that he joined his friends Domingo de Guzman and Elde Soriano in a drinking session, but only for a

short time. His friends started their drinking spree at about 11:00 a.m. of that fateful day, and he was the one serving

theirpulutan. It was about 12:00 noon that he joined them. At past 12:00 noon, he helped his daughter-in-law in selling cooked

foods. From 3:00 to 5:00 p.m., he was cleaning his house.[28]The fact that he was able to resume his routine work belies his claim that

he was heavily drunk at the time he attacked the victim.

The testimony of his daughter-in-law that RABANILLO had been drinking 4 x 4 Ginebra San Miguel from 10:30 a.m. to 5:00

p.m.[29]is not sufficient to establish drunkenness. The remains no proof that RABANILLO had taken such quantity of liquor as to

impair his mental faculties. His own witness testified that he would drink liquor twice a week.[30]As pointed out by the OSG, this

regularity of RABANILLOs intake must have increased his tolerance for alcohol to such an extent that he could not easily get drunk.

As to his claim of voluntary surrender, RABANILLO testified that a few minutes after the hacking incident, the barangay captain

came to his house and told him that they would go to the Municipal Hall. He agreed. At the time, he had mental blackout, which was

why he failed to tell the barangay captain that he was the one who killed MORALES. At the Municipal Hall, he reported that there

was trouble in Amansabina.[31]

For voluntary surrender to be considered, the following requisites must concur: (1) the offender was not actually arrested; (2) he

surrendered to a person in authority or to an agent of a person in authority; and (3) his surrender was voluntary. [32]A surrender to be

voluntary must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities either because

(a) he acknowledges his guilt or (b) he wishes to save them the trouble and expense necessarily incurred in his search and capture.[33]

That RABANILLO submitted himself to the custody of law even though there was yet no warrant of arrest or information

against him is of no moment. The barangay captain had to go to the house of RABANILLO to take the latter to the police

station. The latter did not present himself voluntarily to the former, who is a person in authority pursuant to Article 152 of the Revised
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Penal Code, as amended; neither did he ask the former to fetch him at his house so he could surrender.[34]The fact alone that he did

not resist but went peacefully with the barangay captain does not mean that he voluntarily surrendered.[35]Besides, voluntary surrender

presupposes repentance[36]; this condition could not have existed because at the moment he was brought to the police station, he had

mental blackout. Moreover, he merely reported to the police that there was trouble in Amansabina. Hence, the mitigating

circumstance of voluntary surrender cannot be appreciated in favor of RABANILLO.

There being neither mitigating nor aggravating circumstance established in this case, the penalty that may be meted out to

RABANILLO is the medium period of that prescribed by law for the offense.[37]The penalty for homicide under Article 249 of the

Revised Penal Code is reclusion temporal. Applying the Indeterminate Sentence Law, an indeterminate penalty whose minimum

should be within the range of the penalty next lower in degree, i.e., prision mayor, and whose maximum should be that ofreclusion

temporalin its medium period, may be imposed on RABANILLO. Concretely, such indeterminate penalty should be TEN (10) years

ofprision mayor, in its medium period as minimum to SEVENTEEN (17) years and FOUR (4) months ofreclusion temporalin its

medium period as maximum.

Before we close this case, two matters deserve a few words. First, the trial court imposed the penalty ofreclusion perpetua to

DEATH. This is clearly erroneous, even if it be conceded arguendo that the crime committed was murder. While Article 248 of the

Revised Penal Code punishes murder with reclusion perpetua to death, it does not follow that courts should impose these two

indivisible penalties. What should be imposed is one or the other depending on the presence of modifying circumstances. Article 63

of the Revised Penal Code expressly provides that 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, to wit:

1. When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be

applied.

2. When there are nether mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall

be applied.

3. When the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance,

the lesser penalty shall be applied.4. When both mitigating and aggravating circumstances attended the commission of the act, the courts shall reasonably

allow them to offset one another in consideration of their number and importance, for the purpose of applying the

penalty in accordance with the preceding rules, according to the result of such compensation.

Second, in the body of the decision there is no specific finding on the issue of damages, yet, in the dispositive portion, there are

awards of damages. RABANILLO, however, did not question these awards. Nonetheless, since an appeal in a criminal case throws

the whole case open for review, we shall determine whether the awards are warranted.

As to actual damages, the sister of MORALES testified that as a result of the death of MORALES, her family

spent P41,024.70[38]for the funeral services, food served during the wake, coffin, tomb, masses and novena. However, on cross

examination, she admitted the existence of contributions in the amount of P15,000.00.[39]The award of P41,024.70 should, therefore

be reduced to P26,024.70.

We sustain the award of moral damages in favor of Narcisa Morales, mother of MORALES, who testified on her suffering

brought about by the untimely death of her son. In view, however, of our finding that no aggravating circumstance attended the

commission of the crime, no exemplary damages may be awarded.[40]

The award of attorneys fees may be allowed undercircumstance (11) of Article 2208 of the Civil Code. However, the awards of civil indemnity, actual damages, and attorneys fees

should be payable not only to the mother but also to the other heirs of MORALES.

WHEREFORE, the appealed decision is AFFIRMED with the following modifications: Accused-appellant VICENTE

RABANILLO is found guilty beyond reasonable doubt, as principal, of the crime of homicide, and not murder; and, applying the

Indeterminate Sentence Law, he is hereby sentenced to suffer an indeterminate penalty ranging from TEN (10) years ofprision

mayoras minimum to SEVENTEEN (17) years and FOUR (4) months of reclusion temporalas maximum with all the accessories

thereof, and to pay (a) the heirs of the victim Raul Morales the sums of P50,000 as indemnity for the death of said victim: P26,024.70

as actual damages; and P10,000.00 as attorneys fees, and (b) Narcisa Morales, mother of the victim, P30,000.00 as moral damages.

Costs de oficio.

SO ORDERED.
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epublic of the Philippines

SUPREME COURTManila

EN BANC

G.R. No. 130654 July 28, 1999

PEOPLE OF THE PHILIPPINES,plaintiff-appellee,

vs.

EDUARDO BASIN JAVIER, accused-appellant.

ROMERO, J.:

Before us on automatic review is the Decision 1dated April 15, 1997 of the Regional Trial Court of Agoo, La Union, Branch 32,2in

Criminal Case No. A-3155, convicting accused-appellant Eduardo Javier of the crime of parricide and sentencing him to suffer the

penalty of death and to indemnify the heirs of the victim in the amount of P50,000.00 as moral damages and P21,730.00 as actual

expenses.1wphi1.nt

The Information filed before the trial court which charged accused-appellant with the crime of parricide reads as follows:

That on or about the 15th day of June 1996, in the Municipality of Santo Tomas, Province of La Union, Philippines,

and within the jurisdiction of this Honorable Court, the above-named accused with the intent to and being then

armed with a bolo, did then and there willfully, unlawfully and feloniously attack, assault and use of personal

violence, by hacking with the said weapon one FLORENTINA JAVIER Y LACESTE, his legitimate spouse, and as

a result of which his said wife suffered fatal injuries which directly caused her death immediately thereafter, to the

damage and prejudice of the heirs of the victim.

Contrary to law. 3

Upon arraignment, the accused-appellant pleaded not guilty and trial ensued.The prosecution evidence, consisting of the testimonies of Consolacion Javier Panit and Alma Javier, daughters of the victim and

accused-appellant, and SPO1 Rotelio Pacho are detailed as follows:

Accused-appellant Eduardo Javier and the victim Florentina Laceste Javier were legally married on December 18, 1954. 4 In their

forty-one years of marriage, they begot ten children. Accused-appellant and Florentina lived at Tubod, Sto. Tomas, La Union with one

of their daughters, Alma Javier. 5

On June 15, 1996 between two o'clock and three o'clock in the morning, Consolacion Javier Panit, who lives near her parent's house

about ten to fifteen meters away, heard her mother, Florentina shouting "Arayatan dac ta papatayen nac ni Tatangyo" (Your father is

going to kill me). After she heard her mother scream for help, Consolacion rushed out of her house and met her sister, Alma who,

weeping, told her that their parents were quarrelling. Alma, at the time of the incident was living in her parents' house. Consolacion

and Alma then proceeded to their brother Manuel's house, which is located about seventy to eighty meters away from their parents'

house. The three then proceeded to their parents' house. Manuel, who entered first, found the lifeless body of his mother and his father,

accused-appellant, wounded in the abdomen. Manuel then ordered Consolacion to get a tricycle to bring their father to the hospital. At

this point, Manuel informed her sisters that their mother was dead and that their father confessed to him that he killed his wife andthere after allegedly stabbed himself. Florentina was found dead in their bedroom, drenched in her own blood. 6

Accused-appellant was brought to the hospital by Consolacion's husband, and her son, Jefferson, while Manuel went out to get help. 7

SPO1 Rotelio Pacho, assigned as desk investigator at the Sto. Tomas Police Station in La Union, testified in the investigation he

conducted with SP04 Manuel Zarate and SPO1 Agaton Laroza regarding the incident of June 15, 1996. He stated that he received a

call for assistance from the barangay captain of Tugod, Sto. Tomas because accused-appellant allegedly killed his wife. The police

authorities then proceeded to accused-appellant's house in Brgy. Tugod, Sto.Tomas, where they saw Florentina lying in the bedroom

floor covered with blood. Upon interviewing the victim's children, Pacho testified that Manuel told him that his father confessed to

killing his wife. Manuel then surrendered to him the bolo covered with blood which was found in the bedroom. The bolo was

allegedly used by accused-appellant in assaulting his wife. 8 The medical findings indicated that the victim suffered from multiple

injuries and her neck was almost cut off from her body. 9

Accused-appellant Eduardo Javier, in his testimony, admitted killing his wife in their bedroom with the use of a sharp bolo. He

identified the bolo as the same one presented by the prosecution as Exhibit "A" and which he used in wounding himself. Accused-

appellant told the court that he killed his wife because he could not sleep for almost a month. He claimed that when the killing took

place, his mind went totally blank and he did not know what he was doing. 10 He claims that he was insane at the time of the incident.

The trial court rejected accused-appellant's defense of insanity and on April 15, 1997 rendered a decision finding him guilty of

parricide and sentenced him to suffer the penalty of death. The dispositive portion of the decision reads as follows:

WHEREFORE, in view of all the foregoing consideration, the accused, Eduardo Javier y Basin is hereby sentenced

to suffer the penalty of death; to pay the heirs of the victims the amount of P50,000.00 as moral damages for the

death of the victim and P21,730.00 as actual expenses; and to pay the cost of the proceedings.

SO ORDERED. 11

In this appeal, accused-appellant alleged that the trial court erred in imposing the death penalty, considering the presence of two

mitigating circumstances of illness of the offender and passion and obfuscation. 12 While accused-appellant does not question the

decision of the trial court in rejecting his defense of insanity, he argues that he should be meted a lower penalty because at the time of

the incident, he was suffering from loss of sleep for a prolonged period of time, which would have caused him to commit the crime.


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He further contends that his suspicion that his wife was having an illicit relationship with another man, aggravated by his illness,

goaded him to commit the crime.

The Office of the Solicitor General, on the other hand, argues that accused-appellant cannot claim the mitigating circumstance of

illness in the absence of a medical finding to support his claim. Accused-appellant cannot likewise be entitled to the mitigating

circumstance of passion and obfuscation in the absence of sufficient evidence.

We find the appeal bereft of merit.

Accused-appellant, during trial, admitted killing his wife, but interposed as defense the exempting circumstance of insanity. However,

the trial court rejected this defense of insanity for failure of the defense to prove that accused-appellant was indeed insane at the time

of the incident. The defense never presented any medical record of the accused-appellant, nor was a psychiatrist ever presented to

validate the defense of insanity. Equally important, the defense, during trial, never alleged the above-claimed mitigating circumstances

of illness and passion and obfuscation, thus weakening the case of accused-appellant.

In this appeal, accused-appellant alleged that prior to the incident, he had been suffering from insomnia for around a month, thus

leading him to commit an act beyond his control, the killing of his wife, Florentina. The defense went on to cite medical literature on

the effects of total and partial sleep loss to support his contentions.13

For the mitigating circumstance of illness of the offender to be appreciated, the law requires the presence of the following requisites:

(1) illness must diminish the exercise of the will-power of the offender; and (2) such illness should not deprive the offender of

consciousness of his acts. 14

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 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.

On the other hand, it is clear that accused-appellant was aware of the acts he committed. First, he remembered killing his wife in their

bedroom with the use of a bolo, where he mangled her neck twice; he remembered trying to commit suicide, by wounding himselfwith the same bolo he used in killing his wife; and he remembered being brought to the hospital. Since he remembered the vital

circumstances surrounding the ghastly incident, from the time of the killing up to the time he was brought to the hospital, it shows that

he was in full control of his mental faculties. This negates his claim that he was suffering from an illness that diminished the exercise

of his will-power. On the basis of the foregoing, we cannot appreciate the mitigating circumstance alleged by accused-appellant.

Neither can we appreciate the circumstance of passion and obfuscation to mitigate his criminal liability.

In order to be entitled to the mitigating circumstance of passion and to obfuscation, the following elements should concur: (1) there

should be an act both unlawful and sufficient to produce such condition of mind; and (2) said act which produced the obfuscation was

not far removed from the commission of the crime by a considerable length of time, during

Crim Law Cases 2

Documents

Transcript of Crim Law Cases 2