CRIM 1 REVIEWER PRELIMS CASES DIGEST by Jonry Mendoza 1-BB

Disclaimer: Use at your own risk. Jonry is not liable for the results of using this reviewer.

PROXIMATE CAUSE

CALIMUTAN V. PEOPLE FEBRUARY 9, 2006

FACTS: Calimutan threw a stone the size of a fist at victim Cantre’s back because the latter punched Calimutan’s friend Michael Bulalacao. Michael already ran away and was free from harm when this happened.

Later, Cantre complained of backache, stomachache, vomited, and soon died. In an autopsy by medico-legal Dr. Mendez, he said the cause of death was internal hemorrage due to lacerated spleen and that this could happen when abdominal area is hit by a blunt object.

ISSUE: Whether or not stoning was proximate cause of Cantre’s death

HELD: Calimutan is guilty beyond reasonable doubt of reckless imprudence resulting in homicide. (Why only reckless imprudence? There was no intent to kill, no grudge, Cantre was initial aggressor, no treachery as it was impulsively done, and it was not a retaliatory act but a swift & spontaneous reaction)

Prosecution was able to establish, with Dr. Mendez’s findings, that the proximate cause of death was the stone thrown at Cantre by Calimutan.

Proximate cause is “that cause, which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, & without which the result would not have occurred.”

Before the encounter, Cantre was healthy. But after being hit, he complained of backache and his physical condition rapidly deteriorated until he died. Other than being stoned by Calimutan, there was no instance when Cantre may have been hit by another blunt instrument which could have caused the spleen’s rupture.

Hence, the Court is morally persuaded that Cantre died from a lacerated spleen after being stoned by Calimutan.

ENTRAPMENT

PEOPLE V. STA. MARIA FEBRUARY 23, 2007

FACTS: On November 27, 2002, police received information of illegal drug activities conducted by Rafael Sta. Maria. On November 29, 2002, a confidential asset found by the team had already negotiated a drug deal for the purchase of P200 (My goodness!) worth of shabu from Sta. Maria. On that same evening, police performed a buy-bust operation and arrested Sta. Maria.

ISSUE: Whether or not entrapment or instigation ensued

HELD: Sta. Maria is guilty beyond reasonable doubt of violating R.A. 9165 or the Dangerous Drugs Act.

Page 1 of 21

His contention that instigation happened and not entrapment is not persuasive.In entrapment, the entrapper resorts to ways and means to trap and capture a

lawbreaker while executing his criminal plan. In instigation, the instigator practically induces the would-be defendant into committing the offense and himself becomes a co-principal.

In entrapment, the ways and means comes from the criminal’s mind. In instigation, the law enforcer conceives the commission of the crime and suggests to the accused who executes it. The legal effects of entrapment do not exempt the criminal from liability. Instigation does.

Here, the agreement between the police asset and Sta. Maria is of no moment. Plus, it was NOT PROVEN that the asset instigated Sta. Maria into committing the offense. The solicitation of drugs merely furnishes evidence of a course of conduct. The police received information. They acted on it by using an asset to effect a drug transaction with appellant. There was NO SHOWING that the asset induced Sta. Maria to sell illegal drugs to him.

Plus, the police officers were not actuated by any ill motive in effecting Sta. Maria’s arrest.

CONSPIRACY

PEOPLE V. MAPALO FEBRUARY 6, 2007

FACTS: Mapalo clubbed Piamonte with a lead pipe on the head. Mapalo was standing with two of his companions. Later, witness Garcia found out that Piamonte died of STAB WOUNDS. RTC found Mapalo guilty of murder by CONSPIRACY among appellant and his co-accused. CA reversed this saying that there was no sufficient proof to show conspiracy. Thus, verdict was reduced to frustrated murder.

ISSUE: Whether or not there was conspiracy

HELD: NO, Mapalo is acquitted of murder but guilty of maltreatment.Conspiracy exists when 2 or more persons come to an agreement concerning

the commission of a felony and decide to commit it. It must be shown to exist as clearly and convincingly as the commission of the offense itself (Neither joint nor simultaneous act PER SE is sufficient proof of conspiracy).

While conspiracy need not be established by direct evidence, it is, nevertheless, required that it be proved by clear and convincing evidence showing a series of acts done by each of the accused in concert and in pursuit of a common unlawful purpose. (Concerted action & Pursuit of common unlawful purpose)

In this case, there is want of evidence to show concerted acts of Mapalo and co-accused in pursuing a common design to kill Piamonte. Garcia did not see Piamonte being stabbed. It was only later that he found out that Piamonte died of stab wounds.

Mapalo’s hitting Piamonte with a lead pipe was not shown to be in furtherance of the common design of killing the victim. The stabbing, which is MATERIAL TO PROVING CONSPIRACY, was left to speculation.

Page 2 of 21

PEOPLE V. GLINO DECEMBER 4, 2007

FACTS: While aboard a jeepney, the accused Glino blocked Virginia’s path while his co-accused Baloes, who died later in prison, stabbed Virginia’s husband Domingo several times which resulted in Domingo’s death. Glino denies knowing Baloes.

ISSUE: Wheter or not there was conspiracy

HELD: Yes, there is conspiracy when Conspiracy exists when 2 or more persons come to an agreement concerning the commission of a felony and decide to commit it. It must be shown to exist as clearly and convincingly as the commission of the offense itself (Neither joint nor simultaneous act PER SE is sufficient proof of conspiracy).

Also, in conspiracy, who actually killed the victim is immaterial. The act of one is the act of all. Hence, it is not necessary that all participants deliver the fatal blow.

In this case, the acts of Baloes and Glino before, during, and after the killing of Domingo indicate joint purpose, concerted action, and concurrence of sentiment. Virginia narrated that while Baloes was stabbing Domingo, Glino blocked her path and prevented her from helping. He later joined Baloes in stabbing Domingo.

Hence, Glino is found guilty beyond reasonable doubt of murder.

INTENT

PILARES SR. V. PEOPLE MARCH 12, 2007

FACTS: Old man Pilares Sr., had a fight with Bantigue, a movie stuntman and much younger than him. Pilares chased the drunk Bantigue, then inflicted facial wounds on the latter with a blunt/dull-edged instrument.

ISSUE: Whether or not there was intent to kill on the part of Pilares

HELD: RTC was right in saying there was no intent to kill. In inflicting the wound on Bantigue’s cheek, Pilares had no intent to kill Bantigue. He could have easily killed Bantigue given that the latter was already drunk and lying on the ground. And then, upon slashing his face, Pilares walked away and went home.

The nature and location of the wounds belie any intent to kill. The medical certificate of Dr. Rodriguez even stated that the facial wounds of Bantigue would be healed after 30 days or more.

Thus, the accused is found guilty ONLY of physical injuries and the CA decision is affirmed. (NOTE: Pilares’s act is not justified because Bantigue was unarmed, drunk, lying on the ground. Also, there was no convincing evidence that the latter threw stones at Pilares during the chase.)

MALA IN SE/MALA PROHIBITA

GARCIA V. CA MARCH 14, 2006

FACTS: Petitioner Garcia was charged with violation of R.A. 6646 Sec. 27(b) for decreasing the votes of Senator Pimentel. She contends that there was no motive on

Page 3 of 21

her part to reduce the votes. Pimentel avers that good faith is not a defense in violation of an election law, which falls under mala prohibita.

ISSUE: Whether or not violation of Sec. 27(b) of R.A. 6646 is classified under mala in se or mala prohibita

HELD: Petition DENIED.Mala in se felonies are defined and penalized in the Revised Penal Code.

When the acts complained are inherently immoral, they are deemed mala in se, even if they are punished by special law. Accordingly, criminal intent must be clearly established with other elements of the crime; otherwise no crime is committed.

But crimes that are mala prohibita are not inherenly immoral but are punishable only because the law forbids them. With these crimes, the sole issue is whether the law was violated. And criminal intent is not necessary where the acts are prohibited for reasons of public policy.

In this case, the acts prohibited by Sec. 27(b) are mala in se. Otherwise, even unintentional errors due to overwork/fatigue would be punishable. Given that the work volume within the limited period, errors are bound to happen. It could not be the law’s intention to punish unintentional canvass errors. BUT, intentional increasing/decreasing of # of votes is inherently immoral, since it’s done with malice and intent to injure another.

CRIMINAL LIABILITY

PEOPLE V. OCO SEPTEMBER 29, 2003

FACTS: The accused Oco was charged with murder and frustrated murder because he was seen by Damauag (whom Oco shot) and by 2 other witnesses who corroborated Damauag’s testimony. Oco’s co-accused were aquitted for lack of evidence (they wore helmets except Oco). Oco avers that he didn’t have any motive.

ISSUE: Whether or not motive is an essential element of a crime

HELD: Judgment AFFIRMED. Oco is found guilty of the charges against him.Motive is NOT an essential element of a crime and hence, need not be proved

for purposes of conviction. The failure of prosecution to show proof of Oco’s motive would not exculpate him especially since he was positively identified by 2 other witnesses.

PEOPLE V. CARRIAGA SEPTEMBER 12, 2003

FACTS: Accused Nestor, Cosme Carriaga, and Ben Palis hacked to death Ernesto De Guzman in his own home. The accused aver that the testimony of the witnesses, wife Lita De Guzman and 12-year-old son Ernesto Jr. were incredible.

ISSUE: Whether or not full credence be given to the testimony of the 2 witnesses

HELD: Judgment AFFIRMED.In People v. Aquino, the Court held that the trial judge’s assessment of the

credibility of witnesses will be disturbed only if he plainly overlooked certain facts of

Page 4 of 21

substance and value that, if considered, might affect the result of the case, or if the trial court acted arbitrarily. None of the said exceptions were present. Thus, there’s no reason to disturb the trial court’s findings of the witnesses’ credibility, the same not being tainted by any arbitrariness or palpable error.

ABARQUEZ V. PEOPLE JANUARY 20, 2006

FACTS: The trial court ruled that Abarquez, in holding and restraining Paz, prevented the latter from helping Quejong and allowed Almojuela to pursue his criminal act without resistance. Thus, he was found guilty as an accomplice in homicide.

ISSUE: Whether or not prosecution was able to establish the guilt of the accused beyond reasonable doubt

HELD: Petition GRANTED. Abarquez is ACQUITTED.In People v. Ambrosio, the Court ruled that mere presence of the accused at

the crime scene can’t be interpreted to mean that he committed the crime charged.In this case, it was not shown that Abarquez was stopping Paz from helping

Almojuela. It is more likely that Abarquez was trying to stop Paz from joining the fight. Abarquez’s act of trying to stop Paz doesn’t translate to assistance to Almojuela.

In People v. Fabros, to be deemed an accomplice, one needs to have both knowledge of and participation in the criminal act. Mere prior knowledge of the principal’s criminal design does not show his concurrence in the principal’s criminal intent.

When there is doubt on the guilt of the accused, doubt should be resolved in his favor.

STAGES

VALENZUELA V. PEOPLE JUNE 21, 2007

FACTS: Petitioner Valenzuela concedes that he performed theft of Tide bars but avers that it is only frustrated because he was never in a position to freely dispose of the Tide bars.

ISSUE: Whether or not theft should be deemed consummated or frustrated

HELD: Petition DENIED. Theft cannot have a frustrated stage. Theft can only be consummated or attempted.

The elements of theft are: 1) taking with intent to gain 2) without force or violence 3) without owner’s consent. Theft is already “produced” upon the taking of personal property of another without the latter’s consent. It is immaterial to the product of the felony that the offender, once having committed all the acts of execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner alone has already ensued from such acts of execution.

The Sobrevilla, Adiao, and other Spanish cases ruled that the fact that the offender was able to succeed in obtaining physical possession of the stolen item, no matter how momentary, was able to consummate theft.

Page 5 of 21

The SC rejected the Diño and Flores (frustrated) doctrines. The defense that “inability of offender to freely dispose” would be a convenient defense which does not reflect any legislative intent.

There is no language in Art. 308 (theft) that expressly/impliedly allows that “free dispostion of items stolen” is in any way determinative of whether theft was consummated.

BOTTOMLINE: Person was deprived of property by another with intent to gain.

PALAGANAS V. PEOPLE SEPTEMBER 12, 2006

FACTS: Palaganas shot Michael Ferrer on the shoulder. Is it frustrated or attempted?

HELD: It is Attempted. In frustrated felony, the offender has performed ALL the acts of execution

which should produce the felony as a consequence; in attempted, the offender merely commences the commission of a felony directly by overt acts and doesn’t perform all the acts of execution.

In frustrated, the reason for the non-accomplishment of the crime is some cause independent of the perpetrator’s will; in attempted, it’s a cause/accident other than the offender’s own spontaneous desistance.

In ADDITION, the SC has ruled in SEVERAL cases that when the accused intended to kill the victim, as manifested by use of a deadly weapon in his assault and his victim sustained a fatal/mortal wound/s but didn’t die because of timely medical assistance, it’s frustrated.

If there was intent to kill but wounds are not fatal, it’s attempted. If there’s no intent and wound is not fatal, it’s serious, less serious, or slight

physical injury.Thus, given that Michael was hit by a single gunshot wound in his right

shoulder, was discharged by the hospital on the same day, and that his wound only needed 6 to 8 days to heal are indications that his wound was not fatal.

Hence, Palaganas is laible only for attempted felony.

PEOPLE V. AVILES DECEMBER 19, 2007

FACTS: Aviles stabbed Contapay on the knee. Is it frustrated or attempted?

HELD: It’s only slight physical injuries. While the prosecution sufficiently established that Aviles stabbed Contapay, it failed to prove intent to kill, which is an element of both frustrated and attempted homicide. On the contrary, the evidence appears to show that Aviles stabbed Contapay on the knee only for the purpose of preventing the latter from helping Arenas (who died of stab wounds by Aviles).

Since there was no proof either as to the extent of the injury, period of incapacity for labor, or of the required medical attendance, Aviles can only be convicted of slight physical injuries.

BALEROS V. PEOPLE FEBRUARY 22, 2006

FACTS: Baleros tried to induce Malou Albano (daughter of Cong. Rodolfo Albano) to sleep using a hankie laced with chloroform. Baleros also pinned her down but

Page 6 of 21

wasn’t able to remove her clothes because Malou was able to break free and cry for help. Is Baleros liable for attempted rape?

HELD: NOT attempted rape but light coercion.Under Art. 365 of the RPC, rape is committed by a man who has carnal

knowledge or intercourse with a woman under any of the following circumstances: 1) by using force/intimidation 2) when the woman is deprived of reason or otherwise unconscious 3) when the woman is under 12 or abducted.

Under Art. 6, in relation to the aforementioned article of the same code, rape is attempted when the offender commences the commission of rape directly by overt acts and does not perform all acts of execution which should produce the crime of rape but does not by reason of some cause or accident other than his own spontaneous desistance.

According to Justice Claro M. Recto: the attempt which the RPC punishes is that which has a logical connection to a particular, concrete offense; that which is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its realization and consummation.

Absent the unavoidable connection, meaning the nature of the act in relation to its objective is ambiguous, then what obtains is an attempt to commit an indeterminate offense, which is not a juridical fact from the standpoint of the RPC.

In this case, carnal knowledge is absent. But does Baleros’s acts constitute an overt act of rape?

An overt act is an external act or bodily movement which has a direct, natural, and logical connection with the felony intended to be committed.

In this case, it would be too strained to construe Baleros’s acts as an overt act that will logically and necessarily ripen into rape. Baleros did not commence at all the performance of any act indicative of any intent/attempt to rape Malou. He was even fully clothed and didn’t attempt to undress her or even touch her private parts.

In Perez v. CA, penetration is an essential act of execution to produce rape. For there to be an attempt, accused must have commenced the act of penetrative his penis to the vagina of the victim but for some cause or accident other than his own spontaneous desistance, the penetration, however slight is not completed.

Foreplay stuff (i.e. fondling and licking) doesn’t constitute attempted rape absent any showing that petitioner actually commenced to force his penis into the vagina.

CIRCUMSTANCES THAT AFFECT CRIMINAL LIABILITY

BAXINELA V. PPL, MARCH 24, 2006

FACTS: Policeman Baxinela, upon seeing Lajo with a gun tucked in the back, approached him, grabbed his shoulder., and asked why he had a gun. Lajo turned around with his hand behind his back. Baxinela shot him on the left arm. Lajo fell down and said, I am MIG (military). Why did you shoot me?”

Lajo later died due to the wound. Baxinela claimed self-defense, fulfillment of a duty or lawful exercise of right of office, and mistake of fact.

HELD: Baxinela guilty of homicide.The requisites for self-defense are: 1) unlawful aggression on the part of the

victim; 2) lack of sufficient provocation on the part of the accused; and 3)

Page 7 of 21

employment of reasonable means to prevent and repel and aggression. By invoking self-defense, Baxinela, in effect, admits killing Lajo, thus shifting upon him the burden of the evidence on these elements.

The first requisite is an indispensable requirement of self-defense. It is a condition sine qua non, without which there can be no self-defense, whether complete or incomplete. On this requisite alone, Baxinela’s defense fails. Unlawful aggression contemplates an actual, sudden and unexpected attack on the life and limb of a person or an imminent danger thereof, and not merely a threatening or intimidating attitude. The attack must be real, or at least imminent. Mere belief by a person of an impending attack would not be sufficient. As the evidence shows, there was no imminent threat that necessitated shooting Lajo at that moment. Just before Baxinela shot Lajo, the former was safely behind the victim and holding his arm. It was Lajo who was at a disadvantage. In fact, it was Baxinela who was the aggressor when he grabbed Lajo’s shoulder and started questioning him. And when Lajo was shot, it appears that he was just turning around to face Baxinela and, quite possibly, reaching for his wallet. None of these acts could conceivably be deemed as unlawful aggression on the part of Lajo.

 Next, we consider the alternative defense of fulfillment of a duty. In order to avail of this justifying circumstance it must be shown that: 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 is the necessary consequence of the due performance of duty or the lawful exercise of a right or office. While the first condition is present, the second is clearly lacking. Baxinela’s duty was to investigate the reason why Lajo had a gun tucked behind his waist in a public place. This was what Baxinela was doing when he confronted Lajo at the entrance, but perhaps through anxiety, edginess or the desire to take no chances, Baxinela exceeded his duty by firing upon Lajo who was not at all resisting. The shooting of Lajo cannot be considered due performance of a duty if at that time Lajo posed no serious threat or harm to Baxinela or to the civilians in the pub.

Essentially, Baxinela is trying to convince the Court that he should be absolved of criminal liability by reason of a mistake of fact, a doctrine first enunciated in United States v. Ah Chong. It was held in that case that a mistake of fact will exempt a person from criminal liability so long as the alleged ignorance or mistake of fact was not due to negligence or bad faith. In examining the circumstances attendant in the present case, the Court finds that there was negligence on the part of Baxinela. Lajo, when he was shot, was simply turning around to see who was accosting him. Moreover, he identified himself saying “I am MIG.” These circumstances alone would not lead a reasonable and prudent person to believe that Baxinela’s life was in peril. Thus, his act of shooting Lajo, to the mind of this Court, constitutes clear negligence. But even if the Court assumes that Lajo’s actions were aggressive enough to appear that he was going for his gun, there were a number of procedures that could have been followed in order to avoid a confrontation and take control of the situation. Baxinela, whom the Court assumes not to be a rookie policeman, could have taken precautionary measures by simply maintaining his hold on to Lajo’s shoulders, keeping Lajo facing away from him, forcing Lajo to raise his hands and then take Lajo’s weapon. There was also Regimen who should have assisted Baxinela in disabling and disarming Lajo. The events inside the disco pub that unnecessarily cost the life of Lajo did not have to happen had Baxinela not been negligent in performing his duty as a police officer.

 The Court will, however, attribute to Baxinela the incomplete defense of fulfillment of a duty as a privileged mitigating circumstance.  In Lacanilao v. Court of

Page 8 of 21

Appeals, it was held that if the first condition is fulfilled but the second is wanting, Article 69 of the Revised Penal Code is applicable so that the penalty lower than one or two degrees than that prescribed by law shall be imposed. Accordingly, the Court grants in favor of Baxinela a privileged mitigating circumstance and lower his penalty by one degree. His entitlement to the ordinary mitigating circumstance of voluntary surrender is also recognized, thereby further reducing his penalty to its minimum.

PEOPLE V. TABUELOG JANUARY 22, 2008

FACTS: On a field trip among criminology students, Tabuelog stabbed Clinton Badinas from behind in an altercation during a drinking session. Tabuelog is accused of murder with treachery but invokes self-defense.

HELD: Guilty of homicide si Tabuelog.Appellant alleges that the justifying circumstance of self-defense was not

properly considered in his favor; that assuming the killing was committed not in self-defense, still the courts below erred in appreciating the qualifying circumstance of treachery.

 The petition is partly meritorious. In invoking self-defense, whether complete or incomplete, the onus

probandi is shifted to the accused to prove by clear and convincing evidence all the elements of justifying circumstance, namely: (a) unlawful aggression on the part of the victim; (b) the reasonable necessity of the means employed to prevent or repel it; and (c) lack of sufficient provocation on the part of the person defending himself.

 The accused, in cases of self-defense, must rely on the strength of his own

evidence and not on the weakness of the prosecution’s evidence since he admits the commission of the alleged criminal act.  One who admits the infliction of injuries which caused the death of another has the burden of proving self-defense with sufficient and convincing evidence, for even if the evidence of the prosecution were weak, it could not be disbelieved after the accused himself had admitted the killing. Self-defense, like alibi, is a defense which can easily be concocted.  If the accused’s evidence is of doubtful veracity, and it is not clear and convincing, the defense must necessarily fail.            We agree with the findings of the trial court as affirmed by the Court of Appeals that the defense miserably failed to establish the elements of self-defense namely: a) unlawful aggression on the part of the victim; b) the reasonable necessity of the means employed to prevent or repel it; and c) lack of sufficient provocation on the part of the person defending himself. 

Unlawful aggression presupposes not merely a threatening or an intimidating attitude, but an actual, sudden and unexpected attack or an imminent danger thereof, which imperils one’s life or limb.  It is the first and primordial element of self-defense.  Without it, the justifying circumstance cannot be invoked.

 In the instant case, appellant failed to establish unlawful aggression on the part of the victim; moreover, his narration of the events was unbelievable.  As correctly observed

Page 9 of 21

by the trial court, considering the alleged disadvantageous position of the appellant and the relentless assault from the victim, it is surprising that appellant remained unscathed.  The presence of a pitcher and a knife conveniently within the reach of appellant was highly suspect and coincidental.  As noted by the trial court, “the presence of a pitcher of water which the accused picked up to repel the attack of the deceased and the knife which the accused was able to grasp and swung it to the (victim) hitting him near the left armpit seems to suggest that pitchers and knives are scattered around Fort Ilocandia.” Moreover, if it were true that the victim was pursuing Roger Domingo with a broken bottle, then it is preposterous for the appellant to shout at and order Domingo, instead of the victim, to stop, thus putting Domingo’s life at risk.  Further, if Domingo stopped as narrated by appellant, then it is inconceivable that he was not harmed by his alleged pursuer.

However, we cannot agree with the findings of the trial court that treachery attended the commission of the crime.  The trial court appreciated the qualifying circumstance of treachery because “the attack by the accused upon the victim was sudden and coming from behind, thus, precluding any possible way for the victim to defend himself.” Nevertheless, mere suddenness of the attack does not amount to treachery.

It bears stressing that treachery cannot be presumed.  It must be proved with the same quantum of evidence as the crime itself.  The fact that the victim might have been unaware or helpless when he was stabbed does not constitute proof of treachery.  The prosecution has the burden to prove that at the time of the attack, the victim was not in a position to defend himself, and that the offender consciously and deliberately adopted the particular means, method and forms of attack employed by him. In the instant case, there was no proof that appellant consciously adopted the mode of attack, hence he may only be held liable for homicide, not murder.

MENDOZA V. PEOPLE OCTOBER 4, 2007

FACTS: Arnaldo Mendoza killed Ernesto Velasquez and was accused of murder with the help of armed men, grave abuse of superior strength, treachery, and evident premeditation. Arnaldo surrendered 4 years later.

HELD: Judgment of CA and RTC affirmed. Under Article 8 of the Revised Penal Code, there is conspiracy when two or more persons agree to commit a felony and decide to commit it.  The presence of conspiracy among the accused can be proven by their conduct before, during or after the commission of the crime showing that they acted in unison with each other, evincing a common purpose or design.  

As can be gleaned from the testimonies and sworn statements of the prosecution witnesses, petitioner was seen together with Glenn, Manolito and Ruperto on board a car and was inquiring on Ernesto’s whereabouts before the incident. Petitioner was also seen shooting Ernesto right after Glenn shot the latter, and subsequently fled with Glenn, Manolito and Ruperto on board a car. Clearly, the foregoing acts of petitioner before, during and after the incident demonstrate that he was a co-conspirator of Glenn, Manolito and Ruperto.

 

Page 10 of 21

Evident premeditation qualifies the killing of a person to murder if the following elements are present: (1) the time when the offender was determined to commit the crime; (2) an act manifestly indicating that the culprit has clung to his resolve; and (3) a sufficient interval of time between the determination or conception and the execution of the crime to allow him to reflect upon the consequence of his act and to allow his conscience to overcome the resolution of his will if he desired to hearken to its warning.

 All of the foregoing elements and requisites of evident premeditation were

satisfactorily established by the prosecution. First, at about 5:00 in the afternoon of 31 August 1998, Ernesto confronted

Glenn and thereafter pushed the latter’s left chin after hearing insulting answers from Glenn. Thereafter, Glenn threatened Ernesto, “Humanda ka, babalikan ka namin, papatayin ka namin!” On the following day, 1 September 1998, at around 9:00 in the morning, petitioner together with Glenn, Manolito and Ruperto went to the house of Ernesto’s parents and sought Ernesto.  This was the time that petitioner and his three cohorts were determined to kill Ernesto.

 Second, after being told by Mrs. Velasquez on that same day that Ernesto

was in the Mataasnakahoy, petitioner together with Glenn, Manolito and Ruperto proceeded to said place.  Upon arriving at 1:30 in the afternoon, petitioner immediately approached Ernesto. Thereafter, petitioner shot Ernesto right after the latter was shot by Glenn.  The act of the petitioner and of his three cohorts in locating and shooting Ernesto indicates that they had clung to their determination to kill the victim.

 Finally, petitioner and his cohorts manifested their determination to kill

Ernesto at the time they went to the house of Ernesto’s parents and asked about his whereabouts at 9:00 in the morning of 1 September 1998. On the other hand, petitioner and his cohorts shot Ernesto at about 1:30 in the afternoon of 1 September 1998. Indeed, a gap of four hours between the determination and the execution to kill Ernesto was sufficient for the petitioner and his cohorts to reflect on the consequences of the acts they were about to commit.

 Taking advantage of superior strength also qualifies the killing to murder if

the offender purposely used excessive force out of proportion to the means of defense available to the person attacked.  The evidence for the prosecution had sufficiently proven the existence of this qualifying circumstance.  Petitioner, Glenn, Manolito and Ruperto were all armed with pistols and armalite and used the same in shooting Ernesto, whereas the latter was unarmed and in a sitting position playing tongits at the time of the shooting.  Verily, petitioner and his cohorts took advantage of their number and weapons against Ernesto.

 We observed that the aggravating circumstances of treachery and use of an unlicensed firearm were also alleged in the information.  We agree with the RTC and the Court of Appeals that treachery cannot be appreciated in the instant case since treachery presupposes a sudden and unexpected attack on the unsuspecting victim. In the case at bar, the attack on Ernesto was not sudden and expected. Prior to the shooting, petitioner repeatedly asked Ernesto why he slapped Glenn. Ernesto even managed to

Page 11 of 21

answer back and replied that he did not slap Glenn.  At this stage, Ernesto was already forewarned of the dangers that such questioning brought as well as the presence of petitioner and his cohorts considering that he had a previous quarrel with Glenn. However, we take exception to the ruling of the RTC and the Court of Appeals that the aggravating circumstance of use of unlicensed firearm cannot be appreciated.  The prosecution presented a certification issued by the Chief of the Firearms and Explosives Division of the Philippine National Police, Camp Crame, verifying, among others, that petitioner was a licensed/registered holder of a Pistol Colt Caliber .38, and that the license was issued on 15 June 1995 and expired in November 1997 and has not been renewed since then. The incident occurred on 1 September 1998.  It also presented one live ammunition of Super Caliber .38, four empty shells of Super Caliber .38, and one deformed slug of Super Caliber .38, all of which matched petitioner’s Super Caliber .38.

For voluntary surrender to be appreciated as a mitigating circumstance, the following requisites must concur: (1) that the offender had not been actually arrested; (2) that the offender surrendered himself to a person in authority; and (3) that the surrender was voluntary.

 In order for a surrender to be considered as voluntary, the same must be

spontaneous in such a manner that it shows the interest of the accused to surrender unconditionally to the authorities, either because he acknowledges his guilt or because he wishes to save them the trouble and expenses necessarily incurred in his search and capture.

 In the case at bar, petitioner went into hiding for almost four years before he submitted himself to the authorities. Upon his surrender, he did not acknowledge liability for the killing of Ernesto.  As such, his surrender cannot be considered spontaneous. Moreover, his flight after the incident is a circumstance from which an inference of guilt may be drawn.

PEOPLE V. MONDIGO JANUARY 31, 2008

FACTS: Mondigo and friends were on a drinking spree. Mondigo had a quarrel with two, one was hacked one to death while the other one was mortally wounded.

HELD: Mondigo is GUILTY of frustrated murder and homicide.

Was there treachery?

Yes, as the Court of Appeals correctly held, the location and nature of the wound inflicted against Anthony and the manner by which appellant carried out his attack show intent to kill and treachery. Contrary to appellant’s claim, treachery attended the attack as the evidence showed that while the group was in the midst of their drinking spree, appellant slipped out, went to his house to get the bolo, and while Anthony was sitting among the group, appellant took out his bolo and hacked Anthony on the left side of the head, causing a 15.25-centimeter long laceration. Treachery is present when the offender commits the crime employing means, methods or forms in its execution which tend directly and specially to insure its execution, without risk to himself arising from the defense that the offended party might  make. Anthony, totally

Page 12 of 21

unprepared for what was to befall him, was completely defenseless. 

Can the alternative circumstance intoxication be used as a mitigating circumstance?

No, the trial court erred in crediting appellant with the circumstance of intoxication as having mitigated his crimes because “the stabbing incident ensued in the course of a drinking spree.” For the alternative circumstance of intoxication to be treated as a mitigating circumstance, the defense must show that the intoxication is not habitual, not subsequent to a plan to commit a felony and the accused’s drunkenness affected his mental faculties. Here, the only proof on record on this matter is appellant’s testimony that before Damaso, Anthony, and  Delfin attacked him, he drank “about 3 to 4 bottles of beer.” The low alcohol content of beer, the quantity of such liquor appellant imbibed, and the absence of any independent proof that appellant’s alcohol intake affected his mental faculties all negate the finding that appellant was intoxicated enough at the time he committed the crimes to mitigate his liability.

NOTE: In the absence of clear and positive proof that the accused’s intoxication was habitual or subsequent to the plan to commit the crime, it is improper to consider the same as an aggravating circumstance, and neither can it be considered mitigating where there is no proof that he was so drunk that his will-power was impaired or that he could not comprehend the wrongfulness of his acts. (People v Bajar, 414 SCRA 494)Intoxication is considered an alternative circumstance—it may either be taken as an aggravating circumstance or a mitigating circumstance. (People v Borbon 425 SCRA 178)

PEOPLE V. MONTINOLA JANUARY 31, 2008

FACTS: Montinola raped his minor daughter. Repeatedly.

HELD: Montinola is guilty beyond reasonable doubt of rape, three counts of attempted rape, and acts of lasciviousness.

Should the alternative circumstance of relationship be considered as an aggravating circumstance?

Yes, In Criminal Case No. 02-725, the alternative circumstance of relationship under Article 15 of the Revised Penal Code should be considered against Montinola.  In People v. Fetalino, the Court held that, “in crimes against chastity, like acts of lasciviousness, relationship is considered aggravating.”  In that case, the Court considered relationship as an aggravating circumstance since the informations mentioned, and the accused admitted, that the complainant was his daughter.  In the instant case, the information expressly states that AAA is Montinola’s daughter, and Montinola openly admitted this fact: 

Q         [D]o you know [AAA]? A         Opo. 

Page 13 of 21

Q         Why do you know her? A         She is my daughter.

PEOPLE V. PASCUAL JANUARY 23, 2007

FACTS: Ferdinand Pascual shot to death Manuel Perlaoan and wounded Adelaida on the shoulder with a gunshot as well.

HELD: Pascual is guilty.

Are the findings of the trial court and the Court of Appeals binding on the SC?

Yes, The Court of Appeals and the trial court accorded full faith and credence to the testimony of Adelaida who described with reasonable certainty the fact of the killing, as well as identified Pascual as the assailant. It is doctrinal that the trial court's evaluation of the credibility of a witness and his testimony is accorded the highest respect because of the latter’s untrammeled opportunity to observe directly the demeanor of a witness and thus, to determine whether he is telling the truth. In this case, Adelaida gave a straightforward, unequivocal and spontaneous testimony that she saw Pascual holding a long shotgun walking away rather hurriedly a few seconds after she heard the gunshots that killed her husband and wounded her.

Was there treachery?

Yes, given the circumstances surrounding the attack on the Perlaoans, we agree with the trial court and the appellate court that treachery attended the attack. Treachery is present when the offender commits any crime against persons employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution without risk to the offender arising from any defense which the offended party might make.

In this case, the trial court correctly appreciated the qualifying circumstance of treachery that attended the killing of Manuel Perlaoan and the wounding of Adelaida. Two conditions must concur for treachery to exist: (1) that at the time of the attack, the victim was not in a position to defend himself, and (2) that the offender consciously adopted the particular means, method or form of attack employed by him.

Adelaida vividly recalled that that night, she and her husband were just about to get off from their passenger jeepney when two gunshots suddenly reverberated in the air. They had absolutely no inkling of the attack. They had no opportunity to anticipate the imminence thereof the attack nor were they in any position to defend themselves or repel the aggression because they were unarmed. Manuel Perlaoan was fatally shot in the head which instantly caused his death. The execution of the attack, without the slightest provocation from the victims who were unarmed, made it impossible for the latter to defend themselves or to retaliate.

Was there evident premeditation?

As regards the qualifying circumstance of evident premeditation, we find that the

Page 14 of 21

prosecution failed to adduce evidence to prove the elements thereof, including: (1) the time when the accused determined to commit the crime; (2) an overt act manifestly indicating that he clung to his determination to commit the crime; and (3) a sufficient lapse of time between the decision to commit the crime and the execution thereof to allow the accused to reflect upon the consequences of his act.

Was the Court correct in finding Pascual guilty of attempted murder of Adelaida (the one who survived)?

Yes, the doctrinal rule is that where the wound inflicted on the victim is not life threatening, the accused not having performed all the acts of execution that would have brought about death, the crime committed is only attempted murder.36 In this case, the wound inflicted on Adelaida was not the kind which could have caused her death as, in fact, she was confined at the Medicare Hospital for only one (1) day. Pascual was thus properly convicted only of Attempted Murder in Criminal Case No. T-2515.

PEOPLE V. NABONG APRIL 3, 2007

FACTS: Four construction workers (drunk again), including Nabong, attempted to rape an accountant in a Makati firm. They failed in their attempt yet they managed to stab and kill the lady.

HELD: Nabong and two others were convicted of attempted rape with homicide.

Was there treachery?

Yes, the essence of treachery is a deliberate and sudden attack, affording the hapless, unarmed and unsuspecting victim no chance to resist or to escape. Thus, this Court has ruled that even frontal attack can be treacherous when it is sudden and unexpected and the victim is unarmed. Treachery can still be appreciated even when the victim was forewarned of the danger to his/her person. What is decisive is that the execution of the attack made it impossible for the victim to defend himself/herself or to retaliate. In the present case, the victim did not even have sufficient warning of the danger that was looming, since the attack against her came from behind and was so sudden and unexpected, thus giving the victim no time to flee or to prepare her defense or enable her to offer the least resistance to the sudden assault.

Can intoxication be considered as a mitigating circumstance?

No, For intoxication to be considered as mitigating circumstance, it must be shown that the intoxication impaired the will power of the accused and that he did not know what he was doing or could not comprehend the wrongfulness of his acts. The person pleading intoxication must prove that he took such quantity of alcoholic beverage, prior to the commission of the crime, as would blur his reason. This, the appellants failed to do. The records are bereft of any evidence that the quantity of liquor they had taken was of such quantity as to affect their mental faculties. On the contrary, the fact that appellants could recall details of what had transpired after their drinking session is the best proof that they knew what they were doing during that occasion. The deception, the device, the place and manner of perpetrating the crime all point to the

Page 15 of 21

fact that appellants had complete control of their minds.

How about Nabong’s alleged lack of instruction (Alternative circumstance)? Mitigating?

No, Neither can appellant Nabong’s alleged lack of instruction be appreciated in his favor. Illiteracy alone will not constitute such circumstance; it must be accompanied by lack of sufficient intelligence and knowledge of the full significance of one’s act. Besides, one does not have to be educated or intelligent to be able to know that it is unlawful to take the life of another person.

MANABAN V. COURT OF APPEALS JULY 11, 2006

FACTS: Security guard Manaban shot Bautista, who got angry when his ATM card was denied by the machine. Manaban avers that Bautista, a member of the UP police force, was about to draw his gun.

HELD: Manaban was found guilty of homicide.

Was Manaban’s contention of self-defense correct?

No, When the accused invokes self-defense, he in effect admits killing the victim and the burden is shifted to him to prove that he killed the victim to save his life.27 The accused must establish by clear and convincing evidence that all the requisites of self-defense are present.28

Under paragraph 1, Article 11 of the Revised Penal Code, the three requisites to prove self-defense as a justifying circumstance which may exempt an accused from criminal liability are: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel the aggression; and (3) lack of sufficient provocation on the part of the accused or the person defending himself. Unlawful aggression is an indispensable requisite of self-defense. Self-defense is founded on the necessity on the part of the person being attacked to prevent or repel the unlawful aggression. Thus, without prior unlawful and unprovoked attack by the victim, there can be no complete or incomplete self-defense.

Unlawful aggression is an actual physical assault or at least a threat to attack or inflict physical injury upon a person. A mere threatening or intimidating attitude is not considered unlawful aggression, unless the threat is offensive and menacing, manifestly showing the wrongful intent to cause injury. There must be an actual, sudden, unexpected attack or imminent danger thereof, which puts the defendant’s life in real peril.

In this case, there was no unlawful aggression on the part of the victim. First, Bautista was shot at the back as evidenced by the point of entry of the bullet. Second, when Bautista was shot, his gun was still inside a locked holster and tucked in his right waist. Third, when Bautista turned his back at Manaban, Manaban was already pointing his service firearm at Bautista. These circumstances clearly belie Manaban’s claim of unlawful aggression on Bautista's part.

Page 16 of 21

The allegation of Manaban that Bautista was about to draw his gun when he turned his back at Manaban is mere speculation. Besides, Manaban was already aiming his loaded firearm at Bautista when the latter turned his back. In that situation, it was Bautista whose life was in danger considering that Manaban, who had already fired a warning shot, was pointing his firearm at Bautista. Bautista, who was a policeman, would have realized this danger to his life and would not have attempted to draw his gun which was still inside a locked holster tucked in his waist. Furthermore, if Manaban really feared that Bautista was about to draw his gun to shoot him, Manaban could have easily disabled Bautista by shooting his arm or leg considering that Manaban’s firearm was already aimed at Bautista.

Aggression presupposes that the person attacked must face a real threat to his life and the peril sought to be avoided is imminent and actual, not imaginary. Absent such actual or imminent peril to one’s life or limb, there is nothing to repel and there is no justification for taking the life or inflicting injuries on another.

Was the trial court correct in crediting Manaban with voluntary surrender and obfuscation?

It is undisputed that Manaban called the police to report the shooting incident. When the police arrived, Manaban surrendered his service firearm and voluntarily went with the police to the police station for investigation. Thus, Manaban is entitled to the benefit of the mitigating circumstance of voluntary surrender.

On obfuscation, we find that the facts of the case do not entitle Manaban to such mitigating circumstance. Under paragraph 6, Article 13 of the Revised Penal Code, the mitigating circumstance of passion and obfuscation is appreciated where the accused acted upon an impulse so powerful as naturally to have produced passion or obfuscation. The requisites of the mitigating circumstance of passion or obfuscation are: (1) that there should be an act both unlawful and sufficient to produce such condition of mind; and (2) that the act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity.

In his testimony, Manaban admitted shooting Bautista because Bautista turned around and was allegedly about to draw his gun to shoot Manaban. The act of Bautista in turning around is not unlawful and sufficient cause for Manaban to lose his reason and shoot Bautista. That Manaban interpreted such act of Bautista as preparatory to drawing his gun to shoot Manaban does not make Bautista’s act unlawful. The threat was only in the mind of Manaban and is mere speculation which is not sufficient to produce obfuscation which is mitigating. Besides, the threat or danger was not grave or serious considering that Manaban had the advantage over Bautista because Manaban was already pointing his firearm at Bautista when the latter turned his back. The defense failed to establish by clear and convincing evidence the cause that allegedly produced obfuscation.

PEOPLE V. SISON JUNE 18, 2008

FACTS: Bernabe dela Cruz came out of the house one night to confront Sison and Sendaydiego who were throwing stones at the roof of their house. Sison shot Bernabe

Page 17 of 21

thrice and fled the scene. Bernabe died.

HELD: Sison and Sendaydiego are found guilty of murder qualified with treachery.

Was there evident premeditation? Was treachery proven?

Yes, Appellant argues that assuming it was he who shot Bernabe, the lower court nevertheless erred in convicting him of murder because the qualifying circumstances of treachery and evident premeditation were not adequately proven. According to him, if ever he is guilty, he should be convicted only of homicide. 

In order that evident premeditation may be appreciated, the following requisites must concur: (1) the time when accused decided to commit the crime; (2) an overt act manifestly indicating that he has clung to his determination; and (3) sufficient lapse of time between decision and execution to allow accused to reflect upon the consequences of the act.            We agree with appellant that there was no evident premeditation.  There is no evidence that appellant and Sendaydiego planned to kill Bernabe.  Even the Solicitor General admits that the lapse of time from the stoning incident until the shooting cannot be considered sufficient for appellant to reflect upon the consequences of his act.  The interval of time was only for several minutes. Evident premeditation should not be appreciated where, as in this case, there is neither evidence of planning or preparation to kill nor of the time when the plot was conceived. 

We, however, find that the qualifying circumstance of treachery attended the killing of the victim.           Article 14(6) of the Revised Penal Code provides that there is treachery (alevosia) “when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.”  

The essence of treachery lies in the attack which comes without warning, and is swift, deliberate and unexpected, and affords the hapless, unarmed and unsuspecting victim no chance to resist or escape, ensuring its commission without risk to the aggressor, without the slightest provocation on the part of the victim.  What is decisive in treachery is that the execution of the attack made it impossible for the victim to defend himself or retaliate. Treachery may also be appreciated even if the victim was warned of the danger to his life where he was defenseless and unable to flee at the time of the infliction of the coup de grace.  Here, Bernabe was suddenly shot without any warning by appellant at a distance of about 3 to 4 meters.  An unexpected and sudden attack, which renders the victim unable and unprepared to defend himself by reason of the suddenness of the attack, constitutes alevosia. Even a frontal attack could be treacherous when unexpected and on an unarmed victim would be in no position to repel the attack or avoid it.

Page 18 of 21

PENALTIES

PEOPLE V. GUZMAN JANUARY 26, 2007

FACTS: Guzman and his two companions were on a drinking spree when victim Michael passed by. The trio ganged up on him and stabbed him to death. A policeman who saw this chased after them but was only able to catch Guzman while the other two got away.

HELD: Guzman is found guilty beyond reasonable doubt of murder and is sentenced to suffer the PENALTY of RECLUSION PERPETUA.

First, was there treachery?

Yes, Treachery is a sudden and unexpected attack under the circumstances that renders the victim unable and unprepared to defend himself by reason of the suddenness and severity of the attack. It is an aggravating circumstance that qualifies the killing of a person to murder. Article 14, paragraph (16) of the Revised Penal Code states the concept and essential elements of treachery as an aggravating circumstance, thus:

ART. 14. The following are aggravating circumstances: 16. That the act be committed with treachery (alevosia).

There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.

As can be gleaned from the foregoing, two essential elements/conditions are required in order that treachery may be appreciated: (1) The employment of means, methods or manner of execution that would ensure the offender’s safety from any retaliatory act on the part of the offended party, who has, thus no opportunity for self-defense or retaliation; (2) deliberate or conscious choice of means, methods or manner of execution. Further, it must always be alleged in the information and proved in trial in order that it may be validly considered.

In the instant case, treachery was alleged in the Information against appellant. Moreover, all the essential elements/conditions of treachery were established and proven during the trial.

After attending a worship service at the Iglesia ni Kristo church in his barangay, Michael proceeded home. While Michael was casually walking along the corner of Sto. Nino Street and Mactan Street, appellant and his two companions, who were drinking nearby, suddenly approached and surrounded Michael. Appellant positioned himself at the back of Michael while his two companions stood in front of Michael. In an instant, they grabbed the shoulders of Michael and overpowered the latter. One of the appellant’s companions, whom the prosecution witnesses described as a male with long hair, drew out a knife and repeatedly stabbed Michael on the stomach. Unsatisfied, the appellant’s other companion, whom the prosecution witnesses

Page 19 of 21

described as a male with flat top hair, took the knife and stabbed Michael on the stomach. As the finale, appellant went in front of Michael, took the knife and also stabbed Michael on the stomach. When Michael fell on the ground, appellant kicked him at the body. Upon noticing that the bloodied Michael was no longer moving, appellant and his two companions fled the scene.

As viewed from the foregoing, the suddenness and unexpectedness of the attack of appellant and his two companions rendered Michael defenseless, vulnerable and without means of escape. It appears that Michael was unarmed and alone at the time of the attack. Further, he was merely seventeen years of age then. In such a helpless situation, it was absolutely impossible for Michael to escape or to defend himself against the assault of appellant and his two companions. Being young and weak, Michael is certainly no match against adult persons like appellant and his two companions. Michael was also outnumbered since he had three assailants, and, was unarmed when he was stabbed to death. Appellant and his two companions took advantage of their size, number, and weapon in killing Michael. They also deliberately adopted means and methods in exacting the cruel death of Michael by first surrounding him, then grabbing his shoulders and overpowering him. Afterwards, each of them repeatedly stabbed Michael with a knife at the stomach until the latter fell lifeless to the ground. The stab wounds sustained by Michael proved to be fatal as they severely damaged the latter’s large intestine.

The fact that the place where the incident occurred was lighted and many people were walking then in different directions does not negate treachery. It should be made clear that the essence of treachery is the sudden and unexpected attack on an unsuspecting victim without the slightest provocation on his part. This is even more true if the assailant is an adult and the victim is a minor. Minor children, who by reason of their tender years, cannot be expected to put up a defense. Thus, when an adult person illegally attacks a minor, treachery exists. As we earlier found, Michael was peacefully walking and not provoking anyone to a fight when he was stabbed to death by appellant and his two companions. Further, Michael was a minor at the time of his death while appellant and his two companions were adult persons.

Treachery here is a qualifying aggravating circumstance. So is there any other aggravating circumstance to be considered?

With regard to the allegation in the Information that the killing of Michael was attended by an aggravating circumstance of evident premeditation, the RTC and the Court of Appeals were correct in disregarding the same against appellant. The essence of evident premeditation as an aggravating circumstance is that the execution of the criminal act was preceded by cool thought and reflection upon the resolution to carry out the criminal intent during a space of time sufficient to arrive at a calm judgment. It implies a deliberate planning of the crime before executing it. It must also be shown how and when the plan to kill was hatched or what time elapsed before it was carried out. Further, there must be proof that the accused meditated and reflected on his intention between the time when the crime was conceived by him and the time it was actually perpetrated. In the case at bar, there is no evidence to show that appellant and his two companions had previously planned and reflected in killing Michael. When appellant and his two companions saw Michael on that fateful night, they immediately pounced on him. The thought of killing Michael came into the minds of appellant and

Page 20 of 21

his two companions only when they saw Michael walking on the road. Indeed, the killing of Michael was sudden and unplanned.

Since evident premeditation was not considered, was the penalty imposed by the CA correct?

On another point, we agree with the penalty imposed by the Court of Appeals. Article 248 of the Revised Penal Code states that murder is punishable by reclusion perpetua to death. Article 63 of the same Code provides that if the penalty is composed of two indivisible penalties, as in the instant case, and there are no aggravating or mitigating circumstances, the lesser penalty shall be applied. Since there is no mitigating or aggravating circumstance in the present case, and, treachery cannot be considered as an aggravating circumstance as it was already taken as a qualifying circumstance, the lesser penalty of reclusion perpetua should be imposed. As regards the damages awarded by the Court of Appeals, we rule that the sum of P35,470.00 as actual damages should be reduced to P25,670.00 since the receipts on record amounts only to P25,670.00. It is well-settled that only expenses supported by receipts will be allowed for actual damages. Furthermore, exemplary damages should also be awarded to the heirs of Michael since the qualifying circumstance of treachery was firmly established by the prosecution. If a crime is committed with an aggravating circumstance, either qualifying or generic, an award of P25,000.00 as exemplary damages is justified under Article 2230 of the New Civil Code. This kind of damage is intended to serve as a deterrent to serious wrongdoings, and as a vindication of undue sufferings and wanton invasion of the rights of an injured person or punishment for those guilty of outrageous conduct.

Page 21 of 21