Republic of the Philippines SUPREME COURT
Manila EN BANC G.R. No. L-50905 September 23, 1982
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
FRANCISCO JUMAWAN alias "KIKO", CESARIO JUMAWAN alias "SARIO", MANUEL JUMAWAN alias "OWEL" and PRESENTACION JUMAWAN-MAGNAYE alias "ESEN" accused-appellants.
ABAD SANTOS, J.:
On the basis of a written statement made by Vicente Recepeda on July 18, 1976, and an af-fidavit executed by Trinidad Alcantara on July 19, 1976, a complaint for murder was filed in the Municipal Court of Sariaya, Quezon, on July 19, 1976, by Station Commander Sise-nando P. Alcantara, Jr. against Francisco Jumawan, Cesario Jumawan, Manuel Jumawan and Presentacion Jumawan for the death of Rodolfo Magnaye.
The affidavit of Trinidad Alcantara clearly states that her son Rodolfo Magnaye was mar-ried to Presentacion Jumawan albeit they had been living separately from each other. (During the trial Presentacion admitted her marriage to Rodolfo. See t.s.n., pp. 811-812.) The Station Commander can perhaps be excused for not accusing Presentacion of par-ricide but when the case was elevated to the Court of First Instance of Quezon where it was docketed as Criminal Case No. 1408, the Provincial Fiscal perpetuated the mistake by filing an information for murder against all the accused. The information reads:
The undersigned Provincial Fiscal accuses CESARIO JUMAWAN alias 'Sario,' MANUEL JUMAWAN alias 'Owel', FRANCISCO JUMAWAN alias 'Kiko' and PRESENTACION JUMAWAN alias 'ESEN', of the crime of murder, defined and punished under Ar-ticle 248 of the Revised Penal Code, committed as follows:
That on or about the 19th day of June 1976, in the Municipality of Sariaya, Province of Quezon, Philippines, and within the jurisdiction of this Honor-able Court, the above-named accused, armed with a bolo (gulukan), conspiring and confederating together and mutually helping one another, with intent to kill and with evident premeditation and treachery, taking advantage of their superior strength, did then and there wilfully, unlawfully and feloniously attack, assault and stab with the said bolo one Rodolfo Magnaye alias 'Digo', thereby inflicting upon the latter a stab wound on the chest, which directly caused his death.
After a long trial and 1,211 pages of stenographic transcript, the trial court rendered the following judgment:
Wherefore, the Court finds Cesario Jumawan, Presentacion Jumawan-Magnaye, Manuel Jumawan, and Francisco Jumawan guilty as principals beyond reasonable doubt of the crime of Murder as defined and punished under Art. 248 of the Revised Penal Code and hereby sentences each of them to suffer a penalty of life imprisonment and to indemnify jointly and severally the parents of the victim in the amount of Twenty-four Thousand (P24,000.00) Pesos.
The case is now before this Court on appeal. The brief of the appellants gives the following:
STATEMENT OF FACTS The Accused:
Francisco Jumawan is the father of his co-accused, namely, Cesario Jumawan, Manuel Jumawan and Presentacion Jumawan.
Presentacion Jumawan was married to Rodolfo Magnaye. Death of Rodolfo Magnaye:
As described by the lower court, '... when Rodolfo Magnaye did not return home in (that) evening of 19 June 1976, his mother (Trinidad Alcantara) went to the public market to look for him on the following day. She met four (4) children who told her that they saw a man near the water. They accompanied her to the place and she recognized the dead man as her son Rodolfo Magnaye. She then proceeded to the police headquarters to report the matter. ...' (page 5, Judgment).
For the death of Rodolfo Magnaye, the accused stand charged of the crime of MURDER.
The People's brief, on the other hand, merely reproduces the trial court's findings of facts as follows:
It appears from the evidence adduced during the trial that Rodolfo Magnaye was married on 26 January 1974 to Presentacion Jumawan, one of the accused in the above entitled criminal case. Presentacion Jumawan-Magnaye left the con-jugal home and stayed with her sister Sebastiana Jumawan. Rodolfo Magnaye, on the other hand, went and stayed with his mother Trinidad Alcantara.
The mother of Mrs. Presentacion Jumawan-Magnaye made several attempts to se-cure the signature of Rodolfo Magnaye on a document agreeing to a separation from his wife so that both he and his wife will be free to marry again but Rodolfo Magnaye persisted in refusing to sign said document.
On one occasion the mother of Mrs. Presentacion Jumawan-Magnaye even brought Rodolfo Magnaye and his mother to the Provincial Constabulary Command to ask for the assistance of Sgt. Mortilla to assist her daughter in securing a sep-aration from Rodolfo Magnaye but they were told by Sgt. Mortilla that it can-not be legally done.
Between 5:00 and 6:00 o'clock in the afternoon of 19 June 1976 while Trinidad Alcantara was in her house, her son Rodolfo Magnaye was dressing up and told her that he was going to the public market because his wife asked him to fetch her. He asked his mother to prepare food because they are going to talk about their lives. He left home at about 6:00 o'clock in the evening.
At about 9:30 o'clock in the evening of 19 June 1976 one Mr. Vicente Recepeda came from the Aglipayan fiesta in Sariaya, Quezon and after eating at the Sariling Atin eating place he went to the former BLTB station at Sariaya, Quezon. While he was infront of the public market on the way to the former BLTB station he heard the noise of pigs being butchered and being in the business of buying pigs and chicken he went to the direction of [the] slaugh-ter house to inquire about the prices of pigs and chicken.
Before reaching the slaughter house he heard the noise (sic) of a person be-ing attacked by three (3) persons and a woman inside a store which was light-ed. He saw accused Francisco Jumawan holding the hands of Rodolfo Magnaye while accused Manuel Jumawan was behind Rodolfo Magnaye with his arm around the neck of Rodolfo Magnaye while Cesario Jumawan was infront of Rodolfo Mag-naye with his left hand holding the collar of Rodolfo MagMag-naye and in his right hand he was holding a small pointed bolo with which he stabbed Rodolfo Magnaye below the right nipple.
At about 11:00 o'clock in that evening a certain Mr. Policarpio Trinidad who also came from the Aglipayan fiesta in Sariaya, Quezon was waiting infront of a gasoline station across the old station of the BLTB waiting for a ride home when he saw Cesario Jumawan and Manuel Jumawan with Rodolfo Magnaye between them while they were crossing the national highway towards the south to a road opposite the Emil Welding Shop. They went on walking after crossing the highway. At that time the head of Rodolfo Magnaye was bowed infront while his two (2) arms were on the shoulder of Cesario and Manuel Jumawan. Rodolfo Mag-naye was not walking.
At about 11:45 o'clock in the evening of 19 June 1976 Presentacion Jumawan-Magnaye reported to Patrolman Marcial Baera and Patrolman Albufera that the store of Bastiana (Sebastiana) Jumawan where she works is threatened to be robbed by Rodolfo Magnaye. When asked by Patrolman Baera Presentacion Ju-mawan-Magnaye denied being related to Rodolfo Magnaye. He went to investigate
the reported attempt to rob the store of Sebastiana Jumawan and he saw one of the panels used to close the store was destroyed but nothing appears to have been taken from the store.
Presentacion Jumawan-Magnaye and her companions Tita Dañez and Anabelle Ju-mawan told Patrolman Baera that they will file charges against Rodolfo Mag-naye. Patrolman Baera entered the report of Presentacion Jumawan-Magnaye in the police record book.
When Rodolfo Magnaye did not return home in that evening of 19 June 1976, his mother (Trinidad Alcantara) went to the public market to look for him on the following day. She met four (4) children who told her that they saw a man near the water. They accompanied her to the place and she recognized the dead man as her son Rodolfo Magnaye. She then proceeded to the police headquarters to report the matter.
The two Patrolmen Baera and Albufera went to the place and they saw the dead man without a shirt and wearing black pants with white shoes. They noticed a stab wound on the lower portion of the right breast. The dead man was lying face up.
In the afternoon of the same day Patrolman Loreto Galeon went to the store of Sebastiana Jumawan located at the public market of Sariaya to follow up the investigation of the reported attempted robbery case against Magnaye. He asked the storekeeper for permission to look at the wood panels which are used to close the store. He found traces of blood in one of the wooden pan-els. He reported what he saw to Sgt. Labitigan when he returned to the police headquarters.
The following day he was ordered by the chief of police to look again at the wooden panel with traces of blood but he saw that the wooden panels were al-ready planed ('kinatam') and the traces of blood could no longer be seen. On 23 June 1976, Patrolman Rodrigo Cedonio was ordered to look for Tita Dañez in Barrio Mamala Sariaya, Quezon because Tita Dañez was allegedly in the store at the time of the alleged attempted robbery and at the time Rodolfo Magnaye was allegedly killed.
Patrolman Cedonio was informed by the mother of Tita Dañez that she had not gone to her home at barrio Mamala. She accompanied Patrolman Cedonio in try-ing to locate Tita Danez. They first went to the store of Sebastiana Jumawan which turned out to be closed on that day. They then went at Muntingbayan, Tayabas, Quezon where they were able to find Tita Danez together with Fran-cisco Jumawan, Bienvenido Jumawan and Rosita Abratiga.
Mr. Cesario Jumawan, one of the accused in the above entitled criminal case and a brother-in-law of the victim, set up the defense of alibi when he tes-tified that between 3:00 and 4:00 o'clock in the afternoon of 19 June 1976 he was at Barrio Sampaloc, Sariaya, Quezon which is more or less three (3) kilo-meters away from the poblacion of Sariaya, Quezon. He went home to Barrio Pili of the same town early in the afternoon of the following day. He did not go anywhere else since 3:00 to 4:00 o'clock in the afternoon of 19 June 1976 up to and until he returned to Barrio Pili.
Mr. Manuel Jumawan, another accused in the above entitled criminal case who is also a brother-in-law of the victim, likewise set up the defense of alibi when he testified that on 19 June 1976 he was in his house at Barrio Pili, Sariaya, Quezon which is about five (5) kilometers from the poblacion of Sariaya, Quezon. He went to bed at about 7:00 o'clock in the evening of 19 June 1976. He woke up at about 6:30 o'clock in the morning.
He further claims that he suffers from an abnormality of the left arm which he cannot raise in a normal way and that he was suffering from said disabili-ty since childhood when he fell from a cow continuously up to the present. Said accused presented a medical certificate, Exhibit 7, issued by Dr. Con-cepcion dela Merced, a radiologist of the National Orthopedic Hospital certi-fying to the fact that Manuel Jumawan is negative for fracture dislocation and that he suffers from a deformity of the proximal and left humerous
proba-bly from a previous fracture. There is no showing that Manuel Jumawan is in-capable of raising his left arm around the neck of Rodolfo Magnaye whose ac-tual height was not established by the evidence nor was Dr. Concepcion dela Merced presented to testify on her findings.
Presentacion Jumawan-Magnaye claims that in the evening of 19 June 1976 she was in the store of Sebastiana Jumawan together with Anabelle Jumawan and Tita Dañez when she heard a person who wanted to enter the store. She shouted 'thieves' ('magnanakaw'). In response to her shouts several people arrived and chased the person who wanted to enter the store. She then went to the house of Sebastiana Jumawan where hats are being made and where her father Francisco Jumawan was staying that night.
While she was in the house where her father was staying, their adjoining neighbor, a certain Mateo Diamante informed her that the person being chased by several men was Rodolfo Magnaye. She, however, did not talk with any of the person who chased her husband nor does she know any of them. She then went with her father, Francisco Jumawan, to report the matter to the police whom they met at the Filipina Restaurant.
While Presentacion Jumawan-Magnaye gave the name of Rodolfo Magnaye as the suspect in the attempted robbery, she did not reveal to the investigating po-licemen that he was her husband even if she was asked why they knew his name, neither did she inform the police that her husband was chased by several per-sons nor did she give the direction where her husband supposedly ran.
The two policemen, Patrolmen Baera and Albufera, actually went to the store of Sebastiana Jumawan and after looking at the store, these two patrolmen told Presentacion Jumawan-Magnaye that because nothing happened they will continue the investigation on the next day.
None of those who allegedly chased her husband that evening was even present-ed as a witness.
Mr. Francisco Jumawan, who is the father of his three (3) other co-accused, likewise set up the defense of alibi when he testified that in the evening of 19 June 1976 at about 8:00 o'clock more or less he was alone in the house of Sebastiana Jumawan situated near the former garage of the BLTB in Sariaya, Quezon and that he was awakened only when his daughter Presentacion woke him up to ten him that someone was trying to enter the store of Sebastiana Ju-mawan.
In a brief which is more noteworthy for legal rhetoric rather than a critical analysis of the evidence, the appellants claim that the trial court committed the following errors:
THE LOWER COURT ERRED IN NOT FOCUSING OBJECTIVELY AND IMPARTIALLY THE EVI-DENCE FOR THE PROSECUTION EVEN AS IT FOCUSED SUBJECTIVELY AND UNFAIRLY ON SUPPOSED WEAKNESS OF THE EVIDENCE FOR THE DEFENSE.
THE CONSTITUTIONAL GUARANTEE THAT THE ACCUSED ARE PRESUMED INNOCENT OF THE CRIME CHARGED AND ARE ENTITLED TO A RIGHT TO A DAY IN COURT CANNOT BE OVER-TURNED BY THE DOCTRINE THAT APPELLATE COURTS ARE NOT PRONE TO DISTURB THE FINDINGS OF THE TRIAL COURT WITH RESPECT TO THE CREDIBILITY OF WITNESSES. THE LOWER COURT ERRED IN NOT FINDING AND TAKING INTO SERIOUS ACCOUNT THE FA-TAL WEAKNESSES OF THE EVIDENCE FOR THE PROSECUTION IN TERMS OF IMPROBABILI-TIES, GROSS INCONSISTENCIES AND IRRECONCILABLE CONTRADICTIONS.
THE LOWER COURT ERRED IN GIVING CREDIT AND CREDENCE TO THE TESTIMONIES OF THE STAR PROSECUTION WITNESS CONSIDERING THE GLARING WEAKNESS THEREOF, EVEN AS THE LOWER COURT CONVENIENTLY DENIED THE DEFENSE REASONABLE OPPORTUNITY OF THE PROSECUTION WITNESSES.
THE LOWER COURT ERRED IN ITS ERRONEOUS APPROACH TO AND APPLICATION OF THE PRINCIPLES CONCERNING THE DEFENSE OF ALIBI IN THE CASE AT BAR. SPECIALLY IN THE LIGHT OF THE FACT THAT THERE WAS NO POSITIVE IdENTIFICATION OF ACCUSED AND ALSO THAT THE PROSECUTION FAILED TO EFFECTIVELY REBUT THE DEFENSES OF AL-IBI WHICH WOULD HAVE BEEN EASY TO DO IF SUCH DEFENSES WERE REALLY CONCOCTIONS.
The foregoing assignment of errors can be reduced to the simple proposition whether the evidence against the accused, independent of their alibis, has overcome the presumption of innocence in their favor and created a moral certainty as to their guilt.
Except for Vicente Recepeda and Policarpio Trinidad, the appellants do not question the credibility of the witnesses for the prosecution. Hence, the testimony of these witnesses deserves scrutiny.
Vicente Recepeda was 67 years old, jobless and a resident of Lucena City when he first testified on April 29, 1977. He testified that on June 19, 1976, he went to Sariaya, Que-zon, to attend the Aglipayan fiesta; he arrived there at about 5:00 o'clock and there-after did the following: listened to the music and singing, went to the Aglipayan church and the "perya," ate at a restaurant, and walked to the public market where there was a former BLTB station. While he was waiting for a trip to Lucena, he heard the shriek of pigs being killed so he walked toward the butchers for the purpose of asking the price of pigs since he was then engaged in the business of buying and selling pigs. In fact, at one time Rodolfo Magnaye, the deceased, tied the feet of a pig which he had bought. He was not able to talk to the butchers because an unusual event intervened which in his own words was:
Q. At about 9:30 o'clock in the evening of June 19, 1976, do you remember where were you?
A. Yes sir.
Q. Where were you on that particular date and hour? A. I was in the public market of Sariaya, Quezon, sir.
Q. While you were in the market of Sariaya, Quezon, on that par-ticular date and hour, do you remember if there was any unusual incident that you witnessed?
A. There was, sir.
Q. What was that unusual incident that happened on that particu-lar place and hour?
A. I saw a person being attacked by three persons, sir.
Q. What else did you see there on that particular occasion, aside from a person being attacked by three persons?
A. There was a woman who ordered the three persons to stab and kill the person being attacked by these three persons, sir. Q. Where in particular in the public market of Sariaya, Quezon did you see this incident happen?
A. Inside the store within the public market of Sariaya, Quezon, sir.
Q. Did you recognize, or did you come to know these three persons whom you said were inside the store within the public market of Sariaya, Quezon at about 9:30 o'clock in the evening of June 19, 1976?
A. I recognize their faces, sir.
Q. Did you come to know their names later on? A. Yes sir.
Q. What is the name of the woman whom you said was there on that particular occasion?
A. Presentacion Jumawan, sir.
Q. If you will see that Presentacion Jumawan again, will you be able to Identify her?
A. Yes, sir.
Q. Will you please look around the courtroom and point to Pre-sentacion Jumawan if she is here.
A. She is here sir.
Q. Please point her out to this Honorable Court. A. That one sir.
ATTY. ALCALA:
May we respectfully ask if your honor please that the person pointed to by the witness Identify herself.
COURT:
Ask the person to Identify herself. INTERPRETER:
What is your name?
A. Presentacion Jumawan. INTERPRETER:
The person pointed to by the witness your honor, Identified her-self as Presentacion Jumawan.
ATTY. ALCALA:
And what is the name of the person whom you said was being at-tacked by the three men on that particular occasion inside the store?
A. Rodolfo Magnaye, sir.
Q. And what are the names of the three persons attacking Rodolfo Magnaye, will you please state it before this Honorable Court? A. Yes, sir, one is Francisco Jumawan, Manuel Jumawan and the other one is Cesario Jumawan.
Q. That Francisco Jumawan whom you said was one of the persons attacking Rodolfo Magnaye, on that particular occasion, will you be able to recognize him if you will see him again?
A. Yes, sir.
Q. If this Francisco Jumawan is inside the courtroom, will you please point him out before this Honorable Court?
A. Yes, sir. Q. Please do so. A. That one sir. ATTY. ALCALA:
Your honor please may we ask that the person pointed to by the witness Identify himself.
COURT:
Ask the Identity of the person pointed to by the witness. INTERPRETER:
What is your name? A. Francisco Jumawan. INTERPRETER:
The person pointed to by the witness your honor Identify himself as Francisco Jumawan.
Q. And that person whom you said the name as Manuel Jumawan will you be able to recognize him if you will see him again?
A. Yes, sir.
Q. Please look around the courtroom and point out to this Honor-able Court if Manuel Jumawan is here inside the courtroom.
A. Yes, sir, that one. ATTY. ALCALA:
May we ask Your Honor that the person pointed to by the witness be made to Identify himself.
COURT:
Ask the person pointed to by the witness to Identify himself. INTERPRETER:
What is your name? A. Manuel Jumawan. INTERPRETER:
The person pointed to by the witness Your Honor Identified him-self as Manuel Jumawan.
Q. And that person whom you mentioned is named Cesario Jumawan, will you be able to Identify him if you will him again?
A. Yes, sir.
Q. Please look around the courtroom and point to this Honorable Court the person whom you said is Cesario Jumawan.
That one sir. ATTY. ALCALA:
May we request your honor that the person pointed to by the wit-ness Identify himself.
COURT:
Ask the person pointed to by the witness to Identify himself. INTERPRETER:
What is your name? A. Cesario Jumawan. INTERPRETER:
The person pointed to by the witness Identify himself as Cesario Jumawan Your Honor.
Q. On that occasion what was Francisco Jumawan doing at that time you saw him?
A. He was standing besides Rodolfo Magnaye and holding his hands. Q. Who was holding his hands?
A. Francisco Jumawan was holding the hands of Rodolfo Magnaye, sir.
Q. How about Manuel Jumawan, what was he doing?
A. Manuel Jumawan was at the back of Rodolfo Magnaye with his arm around the neck of Rodolfo Magnaye, sir.
Q. How about Cesario Jumawan what was he doing on that particular occasion?
A. He was in front of Rodolfo Magnaye, his left hand is holding the collar of Rodolfo Magnaye and his right hand holding a bolo, sir.
Q. How about Presentacion Jumawan, what was she doing on that particular occasion?
A. She was standing inside the store ordering the three persons to stab and kill Rodolfo Magnaye, sir.
A. Rodolfo Magnaye was stabbed, sir.
Q. Who stabbed Rodolfo Magnaye on that occasion? A. Cesario Jumawan, sir.
Q. At that time that Cesario Jumawan stabbed Rodolfo Magnaye on that particular occasion, what were Francisco Jumawan and Manuel Jumawan doing.?
A. Francisco Jumawan was holding the hands of Rodolfo Magnaye with his arms around the neck of Rodolfo Magnaye, sir.
Q. What happened to Rodolfo Magnaye when he was stabbed by Ce-sario Jumawan on that occasion?
A. He was hit by the stab, sir.
Q. Where was Rodolfo Magnaye hit by the stab of Cesario Jumawan on that occasion?
A. Under the right nipple, sir. Below the right nipple.
Q. What did Rodolfo Magnaye do on that particular occasion after he was hit?
A. He said, why did you stab me. Q. What did you do after that? A. I left, sir.
Q. While you were walking away did you hear anything? .A. Yes, sir.
Q. What did you hear?
A. A voice of a woman shouting, thief, thief.
Q. What did you do when you heard the shout of a woman? A. I hurriedly walked away, sir.
Q. Did you finally came to know what happened to Rodolfo Magnaye as a result of that incident?
A. Yes, sir.
Q. What happened to him?
A. He died, sir. (t.s.n., pp. 494-509.)
Policarpio Trinidad was 28 years old and a laborer at the time he first testified on June 27, 1977. He testified that he knew Manuel Jumawan, Cesario Jumawan and Rodolfo Magnaye; that on June 19, 1976, at about 11:00 p.m., he was in Sariaya, Quezon, near the old sta-tion of the BLTB; and on that occasion he saw the aforesaid persons thus:
Q. Will you please describe before this Honorable Court their po-sition when you saw them?
A. Their hands were on the shoulders of each other. Q. And who was in the middle?
A. Rodolfo Magnaye, sir.
Q. Will you please tell this Honorable Court the appearance of Rodolfo Magnaye when you saw him being in the middle of Cesario Jumawan and Manuel Jumawan on that occasion?
A. His head falls and his two hands were on the shoulder of Ce-sario Jumawan and Manuel Jumawan.
Q. Did you see where these persons were going on that particular occasion when you said you saw them?
ATTY. CUARTOY
Objection Your Honor, that has already been answered, that they are going out of the old BLTB station.
COURT:
Witness may answer.
A. They cross the highway, sir.
Q. In what particular place did they go when they cross the high-way?
A.. They went to the road opposite the Emil Welding Shop, sir. Q. Did you see on that particular occasion whether Rodolfo Mag-naye was walking?
A. He was not walking and he cannot step his feet, sir.
Q. When they went to that place, near the Emil Welding Shop, did they go any further?
A. They proceeded walking, sir.
Q. Where did you go upon seeing them? A. I went directly to my house, sir. (t.s.n., pp. 628-631.)
The testimony of Vicente Recepeda linked to that of Trinidad Alcantara and Policarpio Trinidad shows that the four appellants conspired and cooperated in the assassination of Rodolfo Magnaye.
The victim and his wife had a rendezvous in the evening of June 19, 1976, in order to discuss the fate of their marriage. While it is not known if they actually conversed, the purpose of the rendezvous was in fact accomplished; the marriage was terminated by the murder of the husband.
The report to the police by Presentacion that Rodolfo Magnaye had attempted to rob the store of Sebastiana Jumawan was a crude diversionary tactic to enable Cesario and Manuel to transfer the cadaver to another place.
The alibis of Francisco, Cesario and Manuela are for naught.
Francisco claimed that in the evening of June 19, 1976, he was in the house of Sebastiana Jumawan, not in her store. Cesario said that while his residence was Barrio Pili, Sari-aya, on the night of June 19, 1976, he and his wife were in Barrio Sampaloc, SariSari-aya, visiting his brother Benigno Jumawan and they did not return to Pili until the next day. Manuel said that on the night of June 19, 1976, he was in his house at Barrio Pili.
These alibi cannot prevail for the following reasons: (a) Francisco, Cesario and Manuel were positively Identified to be at the scene of the crime by Vicente Recepeda and Ce-sario and Manuel were similarly Identified by Policarpio Trinidad; and (b) the places where they claimed to be were not far from the scene of the crimeso that it was not im-possible fro them to be there. Sebastiana Jumawan's house where Francisco was supposed to be is within walking distance from the former's store. Barrio Sampaloc, where Cesario claimed he was, is only about three kilometers from the poblacion of Sariaya. Barrio Pili, where Manuel said he slept that night, is about five kilometers from the
same poblacion.
Presentacion should have been accused of parricide but as it is, since her relationship to the deceased is not alleged in the information, she, like the others, can be convicted of murder only qualified by abuse of superior strength.
Although not alleged in the information, relationship as an aggravating circumstance should be assigned against the appellants. True, relationship is inherent in parricide, but Presentacion stands convicted of murder. And as to the others, the relationships of father-in-law and brother-in-law aggravate the crime. (Aquino, Penal Code, Vol. I. p. 406 [1976].)
The penalty for murder with an aggravating circumstances is death. However, for lack of necessary votes, the penalty is reduced to reclusion perpetua.
WHEREFORE, the jugment of the court a quo is hereby affirmed in toto. No costs. SO ORDERED.
Fernando, C.J., Teehankee, Barredo, Makasiar, Aquino, Concepcion, Jr., Guerrero, De Cas-tro, Melencio-Herrera, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.
Republic of the Philippines SUPREME COURT
Manila FIRST DIVISION G.R. No. L-47941 April 30, 1985
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
JAIME TOMOTORGO y ALARCON, defendant-appellant. ALAMPAY, J.:
Jaime Tomotorgo y Alarcon, the accused-appellant in this case, appeals from the decision rendered on December 22, 1977, by the Court of First Instance of Camarines Sur, Branch IV, in Criminal Case No. 403 of said court finding him guilty of the crime of parricide for having killed his wife Magdalena de los Santos. The dispositive portion of said judg-ment reads, as follows:
WHEREFORE, in view of the foregoing considerations, the accused Jaime Tomo-torgo y Alarcon is hereby condemned to suffer the penalty of reclusion per-petua and to indemnify the heirs of the deceased Magdalena delos Santos in the sum of P12,000.00 without subsidiary imprisonment, plus costs. And con-sidering the circumstances under which the offense was committed, the court hereby recommends executive clemency for him, after serving the minimum of the medium penalty of prision mayor.
Let copy of this decision be furnished, his Excellency, the President of the Philippines, and the Chairman of the Board of Pardons and Parole.
SO ORDERED.
Given at Naga City, this 22nd day of December, 1977. SGD. ALFREDO S. REBUENA
Judge (Rollo, pg. 10)
The facts of this case as recited in the decision of the trial court and in the ap-pellee's brief stand uncontroverted and undisputed. From the evidence submitted it is disclosed that the victim, Magdalena de los Santos, was the wife of the herein accused. Several months prior to the occurrence of the fatal incident on June 23, 1977, Magdalena de los Santos had been persistently asking her husband to sell the conjugal home which was then located at Sitio Dinalungan, Barangay Cabugao, Municipality of Siruma, Camarines Sur. She wanted their family to transfer to the house of her husband's in-laws which is in the town of Tinambac, Camarines Sur. (TSN, pp. 6-10, December 13, 1977). Accused Tomo-torgo would not accede to his wife's request. He did not like to abandon the house where-in he and his wife were then livwhere-ing. Furthermore, he had no where-inclwhere-ination to leave because he has many plants and improvements on the land which he was then farming in said munici-pality of Siruma, Camarines Sur, a town very far from the place of his in-laws where his wife desired their family to transfer to.
On June 23, 1977, at about seven o'clock in the morning, the accused left his home to work on his farm Upon his return at about nine o'clock that same morning. He found his wife and his three-month old baby already gone. He proceeded to look for both of them and sometime later on, on a trail about two hundred (200) meters from their home, he finally saw his wife carrying his infant son and bringing a bundle of clothes. He asked and pleaded with his wife that she should return home with their child but she adamantly re-fused to do so. When appellant sought to take the child from his wife, the latter threw the baby on the grassy portion of the trail hereby causing the latter to cry. This con-duct of his wife aroused the ire of the herein accused. Incensed with wrath and his anger beyond control, appellant picked lip a piece of wood nearby and started hitting his wife
with it until she fell to the ground complaining of severe pains on her chest. Realizing what he had done, the accused picked his wife in his arms and brought her to their home. He then returned to the place where the child was thrown and he likewise took this infant home. Soon thereafter, Magdalena de los Santos died despite the efforts of her husband to alleviate her pains.
After the accused changed the dress of his wife, he reported the tragic incident to the Barangay Captain of their place who brought him to Policeman Arellosa to whom the accused surrendered. He also brought with him the piece of wood he used in beating his wife.
Charged with the crime of parricide, the accused at his arraignment on November 24, 1977, with assistance from his counsel de-oficio, pleaded not guilty to the said offense. How-ever, when his case was called for trial on December 13, 1977, his counsel manifested to the court that after his conference with the accused, the latter expressed a desire to change his previous plea of not guilty to that of guilty. Accordingly, and upon motion by the counsel of the accused and without objection on the part of the prosecution, the tri-al court tri-allowed the accused to withdraw his origintri-al plea. Upon being re-arraigned, the accused entered a plea of guilty. He confirmed the manifestations made by his counsel to the court regarding his desire to change his initial plea. He expressed his realization of the gravity of the offense charged against him and the consequences of his plea. His counsel was then permitted by the court to establish the mitigating circumstances which were then invoked in favor of the accused.
After the accused had testified and upon his plea given in open court, the court below found him guilty of the crime of parricide, but with three mitigating circumstances in his favor, namely: voluntary surrender, plea of guilty, and that he acted upon an impulse so powerful as naturally to have produced passion and obfuscation.
With the imposition by the court below of the penalty of reclusion perpetua on the herein accused and the subsequent denial of his motion for reconsideration of the judgment ren-dered against him, the accused through his counsel filed a notice of appeal to this Court. In his appeal, accused argues and contends that the lower court erred:
1. In disregarding its own findings of fact which showed manifest lack of in-tent to kill;
2. In disregarding the provisions of Article 49 of the Revised Penal Code which prescribes the proper applicable penalty where the crime committed is different from that intended;
3. In not following the mandatory sequence of procedures for determining the correct applicable penalty;
4. In denying the appellant the benefits of the Indeterminate Sentence Law. (Appellant's Brief, pg. 1, pars. 1-4)
We find no merit in the appeal of the accused herein which assails only the correctness of the penalty imposed by the trial court on him.
Appellant submits that the penalty for the felony committed by him which is parricide be-ing higher than that for the offense which he intended to commit, and which he avers to be that of physical injuries only, the provisions of Article 49 of the Revised Penal Code which relate to the application of penalties should have been observed and followed by the trial court. The said provision of law which accused invokes provides that:
ART. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended in cases in which the felony committed is different from that which the offender intended to commit, the following rules shag be observed;
1. If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penal-ty corresponding to the latter shall be imposed in its maximum period.
xxx xxx xxx
Continuing, appellant argues in his appeal brief submitted to this Court, that: xxx xxx xxx
The felony actually committed, parricide. has a higher penalty (reclusion perpetua to death) than the felony intended, qualified physical injuries (reclusion temporal medium and maximum). Hence, since the penalty correspond-ing to the felony intended shall be imposed in its maximum period, the pre-scribed penalty is therefore reclusion temporal maximum. This is a divisible penalty.
Under Article 64, sub-par. 5, of the Penal Code,
When there are two or more mitigating circumstances and no aggravating cir-cumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances.
The trial court itself found "that the accused is entitled to three (3) miti-gating circumstances with no aggravating circumstances, namely: voluntary surrender, plea of guilty, and obfuscation. We submit that the plea of guilty, which, as we had shown earlier, was improvidently made, should no longer be considered. This leaves only two mitigating with no aggravating. Sufficient compliance with the law. Hence, an automatic lowering of the penalty by one degree, or to reclusion temporal medium This being a case where a period constitutes the entire range of the penalty prescribed, and therefore, also a degree. (Appellant's Brief, pp. 8-9)
Appellant maintains the belief that he should be punished only for the offense he intend-ed to commit which he avers to be serious physical injuries, qualifiintend-ed by the fact that the offended party is his spouse. Pursuant to the sub-paragraph of paragraph 4 of Art. 263 of the Revised Penal Code and as his wife is among the persons mentioned in Art. 246 of the same code, appellant contends that the penalty imposable should then be reclusion temporal in its medium and maximum periods. On this mistaken premise, appellant therefore claims that the penalty prescribed by law for his offense is divisible and he should thus be entitled to the benefits of the Indeterminate Sentence Law.
These contentions of the accused are manifestly untenable and incorrect. Article 4 of the Revised Penal Code expressly states that criminal liability shall be incurred by any per-son committing a felony (delito) although the wrongful act be different from that which he intended and that the accused is liable for all the consequences of his felonious acts. The reference made by the accused to Article 263 of the Revised Penal Code which pre-scribes graduated penalties for the corresponding physical injuries committed is entirely misplaced and irrelevant considering that in this case the victim died very soon after she was assaulted. It will be, therefore, illogical to consider appellant's acts as fall-ing within the scope of Article 263 of the Revised Penal Code. The crime committed is parricide no less.
We are in complete accord with and we sustain the ruling made by the courts below that the accused is not entitled to the benefits of the Indeterminate Sentence Law. The court sustains the submissions of the appellee that —
... Article 49 of the Revised Penal Code does not apply to cases where more serious consequences not intended by the offender result from his felonious act because, under Article 4, par. I of the same Code, he is liable for all the direct and natural consequences of his unlawful act. His lack of inten-tion to commit so grave a wrong is, at best mitigating (Article 13, par. 3). Article 49 applies only to cases where the crime committed is different from that intended and where the felony committed befalls a different person (Peo-ple vs. Albuquerque, 59 Phil. 150).
Article 246 of the Revised Penal Code punished parricade with the penalty of reclusion perpetua to death, which are two indivisible penalties. As the com-mission of the act was attended by mitigitating circumstances with no aggra-vating circumstances, the lesser penalty, which is reclusion perpetua, should be imposed (People vs. Laureano, et al., 71 Phil. 530; People vs. Francisco, 78 Phil. 697; People vs. Belarmino, 91 Phil. 118) Appellee's Brief, pp. 6-7). (Emphasis supplied)
We hold that the fact that the appellant intended to maltreat the victim only or inflict physical imjuries does not exempt him from liability for the resulting and more serious
crime committed. In the case of People vs. Climaco Demiar, 108 Phil. 651, where the ac-cused therein had choked his mother in a fit of anger because the latter did not prepare any food for him, it was ruled that hte crime committed by Demiar is parricide (Article 246, Revised Penal Code), the deceased victim of his criminal act being his legitimate mother. Said crime was declared as punishable with reclusion perpetua to death. As the mitigating circumstance of alck of intent to commit so grave a wrong. (Article 13 (3 Id.) The penalty imposed on the herein accused is therefore correct in the light of the rele-vant provisions of law and jurisprudence.
The trial court in its consideration of this case had added a recommendation that "execu-tive clemency be extended to the accused-appellant after his service of the minimum of the medium penalty of prison mayor." The Solicitor General likewise concludes and prays in the People's Brief that in view of the circumstances which attended the commission of the offense, a recommendation for the commutation of the penalty would be appropriate. (Appellee's Brief, pg. 7). This Court is constrained to take note that the accused-appel-lant is said to have been in detention since June 23, 1977 or for more than seven years already. This Court can do no less than express its hope that hte accused-appellant can be now extended an absolute or conditional pardon by the President of the Republic of the Philippines or that there be a commutation of his sentence so that he may qualify and be eligible for parole.
WHEREFORE, the appealed judgment is hereby affirmed without any pronouncement as to costs. Considering the circumstances which attended the commission of the offense, the manifest repentant attitude of the accused and his remorse for his act which even the trial court made particular mention of in its decision and the recommendation made by the Office of the Solicitor General as well as number of years that the accused-appellant had been im-prisoned, this Court can do no less than recommend that executive clemency be extended to the accused-appellant, Jaime Tomotorgo y Alarcon, or that his sentence be commuted so that he can now qualify and be considered eligible for parole. This recommendation of the Court should be promptly brought to the attention of the President of the Republic of the Philippines by the proper authorities in whose custody the herein accused has been placed. Aside from this, let copy of this decision be furnished the Office of the President of the Republic of the Philippines and the Chairman of the Board of Pardons and Parole. SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, Gutierrez, Jr. and De la Fuente, JJ., concur.
EN BANC
[G.R. No. 115686. December 2, 1996]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO MALABAGO y VILLAESPIN, accused-appellant.
D E C I S I O N PUNO, J.:
This is an automatic review of the decision of the Regional Trial Court of Dipolog City, Branch 10 which imposed the penalty of death on accused-appellant, Pedro Malabago y Villaespin, in Criminal Case No. 6598, viz:
WHEREFORE, the court finds accused Pedro Malabago guilty beyond reasonable doubt of the crime of PARRICIDE as defined and penalized under Article 246 of the Revised Penal
Code. With reluctance and a heavy heart therefore, inspired by the personal feeling and view of the undersigned with respect to the wisdom of the penalty of death for any crime, the court finds itself with no other alternative but to impose the penalty provided for by the express mandate of the law which is now restored under Republic Act No. 7659. The accused (Pedro Malabago y Villaespin) is hereby sentenced to DEATH for the terrible crime he has committed and, to indemnify the heirs of the victim in the sum of P50,000.00 con-formable to the recent jurisprudence on the matter (People v. Sison, 189 SCRA 643).
Cost de oficio. SO ORDERED
DIPOLOG CITY, Philippines, this 10th day of May 1994. (Sgd.)
WILFREDO C. OCHOTORENA Acting Presiding Judge”1
In an information dated January 7, 1994, accused-appellant was charged with the crime of parricide committed as follows:
“That in the evening, on or about the 5th day of January 1994, at Barangay Gulayon, Dipolog City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and without any justifiable cause, did then and there wilfully, unlawfully and feloniously hack and strike with a bolo one Letecia R. Malabago, his lawfully wedded wife, hitting the latter on her face and neck, which caused the vic-tim’s instantaneous death, to the damage and prejudice of the heirs of the victim, in the amount of P30,000.00 as death indemnity, and also moral and exemplary damages in the amounts to be established during the trial.”2
The following facts were established by the prosecution: On January 5, 1994, at about 7:00 in the evening, Guillerma Romano, appellant’s mother-in-law, was tending her sari-sari store in Barangay Gulayon, Dipolog City. The Store and its premises were lit by a kerosene lamp and the fluorescent light from the adjoining house of Dodong Opulentisi-ma. Guillerma’s daugther. Letecia Romano Malabago, arrived and sat on one of the benches outside the store. She had just come from selling some jackfruit. Allandel, Letecia’s fourteen-year old son, appeared and sat on the bench facing her. He listened to his mother and grandmother who were conversing. A few minutes later, accused-appellant came and interrupted his wife and mother-in-law’s conversation. He and Letecia began argu-ing. Guillerma turned away but heard the couple’s altercation over money and appellant’s jealousy of someone. Suddenly, Guillerma heard a loud sound and she thought that appel-lant slapped Letecia on the face. Letecia cried out “Agay!” Looking out the store win-dow, Guillerma saw Letecia’s face bloodied with a slash along her right ear. Appellant was facing Letecia, and with a bolo in his hand, struck her again, this time hitting the lower left side of her face, from the lips down to the neck. Letecia fell to the
ground. Guillerma rushed towards her daughter and shouted for help.3 She was lifeless. Appellant fled to Dodong Opulentisima’s house. Dodong Opulentisima later called the police. They came, fetched appellant and brought him to their station.4 On investigation, the police found a bloodied bolo in the pineapple plantation near appellant’s house.5
Letecia was found to have died of “cardio-respiratory arrest; shock hemorrhage, mas-sive; hack wounds, multiple.”6
Accused-appellant pled not guilty to the crime. He claimed that on January 5, 1994, he was in the poblacion of Dipolog City. He alleged he did not know who hacked his wife and had no means of finding the culprit because he was placed in jail after her killing.7 He claimed through his son, Allandel, as defense witness, that Guillerma testi-fied against him because she was against their marriage. He was then jobless.8 The proc-cedings show that Guillerma, together with her husband, catalino, and appellant’s and Letecia’s three children namely, Allandel, Aljun and Alex later signed as affidavit of desistance and moved to dismiss the case against him.9
The trial court upheld the prosecution and on May 10, 1994 convicted accused-appellant of parricide and sentenced him to death pursuant to republic Act No. 7659.
Before us appellant assigns the following errors: “I
The sentence of death imposed by the trial court on the appellant is an unconsti-tutional penalty for being violative of fundamental human rights and is, thus, null and void.
The judgment of conviction is null and void for having been rendered by a trial court ousted of jurisdiction because of the grave violations of the appellant’s rights to due process committed by no less that the presiding judge himself as shown by his conduct at trial.
III
Assuming without conceding that the trial court was not ousted of jurisdiction, it nevertheless gravely erred in convicting the appellant of parricide considering that the prosecution failed to prove his guilt beyond reasonable doubt as demon-strated by:
(a) The prosecution’s failure to prove the legitimate marital rela-tion between appellant and the victim;
(b) The prosecution’s failure to prove the fact and cause of death; (c) The prosecution’s failure to establish the chain of custody over
the alleged instrument of death; IV
Assuming without conceding that the trial court was not ousted of jurisdiction, it nevertheless gravely erred in convicting the appellant when it arbitrarily and se-lectively gave full weight and credence only to Guillerma Romano’s inculpatory but inconsistent and inadmissible testimony and disregarded her exculpatory state-ments.
V
Assuming without conceding that the trial court was not ousted of jurisdiction, it nevertheless gravely erred in peremptorily dismissing the appellant’s defense of alibi as inherently weak.
VI
Assuming without conceding that the finding of parricide is correct, the trial court nevertheless gravely erred in appreciating the existence of treachery as an aggravating and qualifying circumstance.
VII
Assuming without conceding that the finding of parricide is correct, the trial court nevertheless gravely erred in refusing to consider the mitigating circum-stance of voluntary surrender in favor of the appellant, despite the prosecution’s failure to contradict and challenge the appellant’s claim of this mitigator.
VIII
Assuming without conceding that it was not ousted of jurisdiction, the trial court nevertheless gravely erred in awarding civil indemnity arising from the death of Letecia Malabago considering that the prosecution failed to prove said death as a fact during trial.”10
We affirm the trial court’s findings with modification
The crime of parricide defined in Article 246 of the Revised Penal Code as amended by Republic Act 765911 states:
“Art. 246. Parricide. -- Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death.”
Parricide is committed when: (1) a person is killed; (2) the deceased is killed by the accused; (3) the deceased is the father, mother, or child, whether legitimate or il-legitimate, or a legitimate other ascendants or other descendants, or the legitimate spouse of the accused.12
The key element in parricide is the relationship of the offender with the victim.13 In the case at parricide of a spouse, the best proof of the relationship between the accused and the deceased is the marriage certificate. In the absence of a marriage
certifi-cate. However, oral evidence of the fact of marriage may be considered by the trial court if such proof is not objected to.14
Guillerma Romano testified on direct examination that: “PROSECUTOR MAH:
Q On January 5, 1994 at about 7:00 in the evening, can you still recall where you were at that particular time?
A I was in my store.
Q While you were in your store at that particular time and date, can you still remember if there was an unusual incident [that] happened?
A Yes, sir.
Q Please tell us what that incident was about? A At that moment, I heard a loud sound (paka).
Q Did you investigate what that loud sound [was] all about? A I did not mind because they are husband and wife.
Q What was that loud sound about?
A I thought it was a slap on the face but she was nit by a bolo. Q What was that incident about?
A There was an altercation between husband and wife.
Q After the altercation between husband and wife, what happened? A I saw the hacking two times and I saw blood.
Q Who was hacked?
A My daugther Letecia was hacked by Pedro Malabago.
x x x x x x x x x.”15
Guillerma Romano’s testimony on direct examination affirmed the narration in her affi-davit taken the day after the incident. The affiaffi-davit was adopted by the prosecution as its Exhibit “A” and it reads in part:
“Q What is your purpose in coming to the Office of the Investigator of the Dipolog City Police?
A To file a complaint against Pedro malabago y Villaespin, 42 years old and a resident of Gulayon, Dipolog City,
Q What is your complaint against said person?
A He hacked to death my daughter who is his wife with the use of a bolo. Q How many times did the suspect hack his wife, Letecia R. Malabago?
A Twice, hitting the victim on the right side of her face and on the neck result-ing in her instanteneous death.
x x x x x x x x x.”16
Appellant did not object to Guillerma’s testimony and sworn statement that he and Letecia were husband and wife.17 Appellant himelf corroborated Guillerma’s testimony, to wit:
“COURT: (to the witness)
Q You are Pedro Malabago, the accused herein? A Yes, sir.
A She was my wife, your honor.
Q You mean to say you were legally married to Letecia Romano Malabago? A Yes, sir.
Q Who solemnized the marriages? A Mayor Barinaga, your honor. Q When?
A In the year 1970, your honor.
Q Who were the witnesses, could you still remember? A I can only remember Sergio Vidal, your honor.
Q But then you were legally married by civil ceremony officiated by Mayor Bari-naga?
A Yes, your honor.
x x x x x x x x x.”18 The testimony of the accused that he was married to the deceased is an admission against his penal interest. It is a confirmation of the semper praesumitur matrimonio and the presumption that a man and a woman deporting themselves as husbands and wife have entered into a lawful contract of marriage.19
Appellant alleges that the prosecution failed to establish the fact and cause of Lete-cia’s death because Dr. Dominador Celemin, the City Health Officer who signed the death certificate, did not personally examine her cadaver.20 It is content that the consent of the death certificate issued by Dr. Celemin is hearsay.21
Letecia’s death certificate is not the only proof of her death. Guillerma, in her af-fidavit, stated that her daughter died as a result of the hack wounds.22 Called also as a hostile witness to the defense, she testified:
“COURT
Q At the time, you actually saw the accused hacked (sic) the bolo to (sic) your daughter?
A Yes, you honor.
Q In fact, you witnessed the blood oozing on the face of your daughter? A Yes, your honor.
Q In other words, you actually saw the accused herein hack the bolo to your daughter, am I right?
A Yes, your honor.
Q And the cause of death of your daughter was hacking of Pedro Malabago? A Yes, your honor.
Q I have observed a while ago while you were testifying, you were crying. Why? A Because of worries that Pedro had done to my daughter.
Q You mean to say, you cried because your daughter was killed by her husband? A Yes, your honor.
x x x x x x x x x.”23
Appellant affirmed on cross examination that his wife died as a result of the hacking, thus:
Q Mr. Witness, you know Letecia Malabago because she was your wife? A Yes, sir.
Q Where is she now?
A She is already buried in the cemetery. Q You mean to say she is already dead? A Yes, sir.
Q What was the cause of her death? A She was hacked, sir.
Q Hacked by whom?
A I do not know who hacked my wife.
x x x x x x x x x.”24
Accused-appellant also claims that the trial court showed partiality to the prosecu-tion by unduly interfering in the presentaprosecu-tion of evidence. By asking quesprosecu-tions, the judge allegedly elicited prejudicial admissions from witnesses without affording appel-lant’s counsel the right to examine them on their answers to the court, in violation of appellant’s constitutional right to due process and right against self-incrimination.25
The records disclosed that the questions the trial judge propounded were made mainly to clarify what the prosecution and defense witnesses had testified on direct and cross examinations. The essential elements of the crime of parricide like appellants’s mar-riage to Letecia, the cause of Letecia’s death and appellant’s participation therein were facts already established by the prosecution in its evidence in chief. Using his discre-tion, the trial judge questioned the witnesses to clear up obscurities in their testi-monies ans sworn statements.26 The wise use of such discretion cannot be assailed as a specie of bias.
A judge is called upon to ascertain the truth of the controversy before him. He may properly intervene in the presentation of evidence to expedite and prevent unnecessary waste of time27 and clarify obscure and incomplete details after the witness had given di-rect testimony.28After all, the judge is the arbiter and he ought to satisfy himself as to the respective merits of the claims of both parties in accord with the stringent demands of due process.29 In the case at bar, the trial judge had strong reasons to question the material witnesses who executed affidavits of desistance contradicting their previous stance. If to the mind of the parties, the trial judge was unduly interfering in their presentation of evidence, they were free to manifest their objection. They were likewise free to ask redirect questions from their witness after interrogation by the trial court. In the instant case, however, they never manifested that the questions of the trial judge had traversed the allowable parameters. Even assuming that some of the ques-tions were incriminating, we cannot hold that the witnesses were compelled to incriminate themselves. The records show they answered the questions of the court freely and volun-tarily and without any objection from their respective counsels.
The prosecution evidence is based solely on the testimony of Guillerma Romano. None-theless, her testimony is clear, spontaneous and straightforward. Her inconsistencies are minor and inconsequential and they are not incongruous with her credibility.30 Her testimony was not eroded even when she was presented by the defense as a hostile wit-ness. She admittedly signed the affidavit of desistance for the sake of her three grand-children and this is understandable in light of the circumstances of the case. Allandel and his brothers pled that she withdraw the complaint because they did not want their fa-ther to be in prison.31 Deep in her heart, however, Guillerma wanted justice for her daughter and thus, she testified for the prosecution.32 The fact that she objected to her daughter’s marriage to appellant is too flimsy a reason to impel her to testify against the father of her grandchildren.
We agree with the trial court that appellant’s defense of alibi is weak and unconvinc-ing. Appellant was positively identified as the one who hacked his wife to death. More-over, it was not physically impossible for him to be at the scene of the crime on that
fateful evening. The poblacion of Dipolog City is merely four kilometers from Barangay Gulayon and this distance may be traversed within a few minutes by motorized vehicle.33
Be that as it may, we find that the trial court erred in appreciating the aggravating circumstance of treachery. For treachery to be present, two conditions must concur: (a) the employment of means of execution which would ensure the safety of the offender from defensive and rataliatory acts of the victim, giving the victim no opportunity to defend himself; and (b) the means, method and manner of execution were deliberately and con-sciously adopted by the offender.34 It is true that appellant hacked his wife who was then unarmed and had no opportunity to defend herself. However, the evidence does not show that appellant deliberately and consciously employed this particular mode of attack to ensure the killing of the victim. The unembroidered facts reveal that appellant hacked his wife in the midst of a sudden, unscripted heated argument. This precludes the idea that appellant priorly planned to kill his wife. Indeed, appellant was not carrying his bolo at that time. The bolo was hanging in its usual place on one of the posts of the sari-sari store.35 Treachery, to be appreciated, must spark an attack that is deliberate, sudden and unexpected not where it is prefaced by an unforeseen heated argument with the victim standing face to face with her assailant.36
The trial court also erred in disregarding the mitigating circumstance of voluntary surrender. In answer to questions by the trial court, appellant declared:
“COURT: (to the witness)
x x x x x x x x x Q Do you have suspects as to the alleged killers of your wife? A I have no suspect, your honor.
Q Because you denied killing your wife, you did not surrender to the police au-thorities?
A I surrendered because I was accused of killing my wife. Q Immediately after the incident?
A Yes, sir.
Q Was it placed in the police blotter that you surrendered? A Yes, sir.
Q Will you give the name of the person or police officer to whom you surrendered? A I forgot the name, your honor.
Q Are you telling the truth? A Yes, sir.
x x x x x x x x x.”37
Appellant testified that he voluntarily surrendered to the police when they fetched him at Dodong Opulentisima’s house. The prosecution did not dispute appellant’s claim of voluntarily surrender. Guillerma herself testified that without any resistance, appel-lant went with the police when they fetched him at Dodong’s house.38 Indeed, appellant did not escape after Dodong Opulentisima called the police. Instead, he voluntarily placed himself at the disposal of the police authorities.
In the absence of an aggravating circumstance39 and the presence of a mitigating cir-cumstance the penalty imposable to appellant is reclusion perpetua.40 Considering the death of the victim, a civil indemnity of P50,000.00 must be awarded to her heirs.
In light of the above disquisitions, the Court need not resolve the alleged unconsti-tutionality of R.A. No. 7659, as amended. Nonetheless, the Court expresses its apprecia-tion to the scholarly arguments of our amici curiae, Senator Arturo M. Tolentino and Fr. Joaquin G. Bernas, S.J., on the constitutional aspects of R.A. No. 7659, as amend-ed. Death not being the lis mota of the instant case, the Court has to await for more appropriate case to pass upon the constitutionality of R.A. No. 7659, as amended.
IN VIEW WHEREOF, the decision appealed from is affirmed with the modification that the penalty of death imposed by the Regional Trial court of Dipolog City, Branch 10 on ac-cused-appellant Pedro Malabago y Villaespin in Criminal Case No. 6598 is reduced to reclusion perpetua.
SO ORDERED
Regalado, Davide, Jr., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur.
Narvasa, C.J., join Justice Padilla in his dissenting opinion.
Padilla J., see Dissenting Opinion.
FIRST DIVISION
[G.R. No. 107801. March 26, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROSARIA V. IGNACIO, accused-appellant. D E C I S I O N
VITUG, J.:
Rosaria V. Ignacio was accused of parricide before the Regional Trial Court of Rizal, Branch 76 (Criminal Case No. 1700),[1] for fatally hitting her husband, Juan Ignacio, with a wooden club (palo-palo). The deceased was Rosaria's fourth husband. Juan died after having lived with Rosaria for two (2) years and seven (7) months.
On 19 February 1992, the following information was filed against accused Rosaria Igna-cio:
"That on or about the 10th day of February 1992 in the Municipality of Rodriguez, Prov-ince of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill and while armed with the wooden club (palo-palo) did then and there willfully, unlawfully and feloniously attack, assault and hit her law-fully wedded husband Juan Ignacio, whereby inflicting upon the latter serious injuries which directly caused his death.
"Contrary to law."[2]
Rosaria pleaded not guilty to the charge.[3]
The prosecution gave the following narration of its version of the incident.
Rosaria Ignacio, then 44 years of age, lived with her husband, Juan Ignacio, 67 years old, in a small two-storey house of sawali and cogon grass in Sampaguita Street, San Jose, Montalban (Rodriguez), Rizal. Residing with them was Rosaria's daughter, Milagros V. Cabanilla, by a previous marriage.
On the night of 09 February 1992, Rosaria and Juan had a heated argument. Milagros, entreated them to stop but the couple were in no mood to heed her. The following night (10 February 1992), at dinner, Juan and Rosaria had another quarrel. Milagros grudgingly went upstairs and tried instead to put her child to sleep. She could hear, after a brief moment, that the fight had become somewhat violent (nagrarambulan). Milagros peeped. She saw by the gas lamp (batutoy), that both were pulling a piece of lawanit and each tried to take possession of it. Juan ultimately released the lawanit and turned to go for his bolo when Rosaria picked up a palo-palo and hit Juan on the nape.[4]
Rosaria left the straggling (kikisay-kisay) Juan and surrendered to the police at the municipal building. Rolando Ignacio, Juan's son by his former wife, was fishing in the San Jose river when he learned of the unfortunate incident. At the municipal hall in Montalban, Rizal, Rosaria voluntarily disclosed before Rolando and Pat. San Diego that she hit Juan with a wooden club.[5] She repeated this statement at the Office of the Prosecutor in Marikina in the presence of Rolando.
Juan died the following day.[6] His body underwent postmortem examination at the Fran-cisco Memorial Homes in Montalban, Rizal, by Dr. Emmanuel Aranas of the PNP Crime Labora-tory Service.[7] Dr. Aranas found a contusion on the left occipital region, a lacerated
wound on the right occipital area and an abrasion on the right elbow. The cause of death, per the autopsy report, was attributed to hemorrhage resulting from the traumatic injuries on the head.[8] Dr. Aranas opined that the contusion and laceration on Juan's head, which fractured the bones of the skull,[9]had badly affected the cranial cavity of the brain.
Testifying in her defense, Rosaria did not deny having inflicted the fatal wounds on her husband. According to her, between seven and eight o'clock in the evening of 10 Feb-ruary 1992, while she was resting on the wooden bed near the kitchen, after having re-turned home from her laundry work, her husband arrived. He was drunk. Armed with a bolo, he went around the wooden bed and then faced her. Exasperated, she finally stood up, pulled his hair, got hold of a palo-palo and hit him once on the head. The assault sent Juan hovering down the floor seriously wounded. Rosaria went to the municipal hall and surrendered to police officer San Diego.
No other witness was presented by the defense.
On 08 September 1992, the trial court rendered judgment convicting the accused and concluded:
"WHEREFORE, premises considered, judgment is hereby rendered finding herein accused Rosaria V. Ignacio guilty beyond reasonable doubt of the crime of Parricide as defined and penalized under Art. 246 of the Revised Penal Code, and sentencing her to suffer the penalty of reclusion perpetua, and to indemnify the heirs of Juan Ignacio in the amount of P30,000.00."[10]
Rosaria has interposed this appeal praying that she be acquitted on the basis of self-defense or, in the alternative, that she be held guilty only of homicide rather than of parricide.
An accused who interposes self-defense admits the commission of the act complained of. The burden of proving self-defense would now be on the accused who must show by strong, clear and convincing evidence that the killing is justified and that, therefore, no criminal liability has attached.[11] The first paragraph of Article 11 of the Revised Penal Code requires, in a plea of self-defense, (1) an unlawful aggression on the part of the victim, (2) a reasonable necessity of the means employed by the accused to prevent or repel it, and (3) the lack of sufficient provocation on the part of the person defending himself.[12]
Unlawful aggression is a condition sine qua non for the justifying circumstance of self-defense. Without it, there can be no self-defense, whether complete or incomplete, that can validly be invoked.[13] The importance of this requisite must remain under-scored. In De Luna vs. Court of Appeals,[14] the Court has explained:
"x x x. We did repeatedly say before that, whether complete or incomplete, self-defense, by its very nature and essence, always would require the attendance of unlawful aggres-sion initiated by the victim which must clearly be shown. When unlawful aggresaggres-sion on the victim's part is alone established, incomplete self-defense is so appreciated merely as an ordinary mitigating circumstance under Article 13, paragraph 1, of the Code. When such unlawful aggression is coupled with still another element of self-defense, incomplete self-defense becomes a privileged mitigating circumstance, referred to in Article 69 of the Revised Penal Code, that entitles the accused to a reduction of the penalty imposed by law for the felony by one or two degrees depending on the conditions and circumstances therein obtaining."[15]
The presence of the requisite of unlawful aggression is pivotal. In the case at bench, appellant has sought to prove unlawful aggression by her testimony; thus
-"Q. Please tell the court what was that unusual incident?
"A. That night, as I was taking a rest, my husband arrived and he was drunk. When I was on top of our wooden bed, I saw him armed with a bolo going around me, I lost my patience (nagdilim ang aking paningin), I got hold of a palo-palo and hit him on his head, sir.
"Q. And what was your relative position as compared to the position of the victim when you hit him with a palo-palo?
"A. He was facing me and I was on top of the wooden bed and as I was on top of it, I hit him, sir.
"x x x x x x x x x.
"Q. You also testified that prior to that incident, before you hit your husband with a palo-palo, he was armed with a bolo, is that correct?
"A. Yes, sir.
"Q. Where did he get that bolo, if you know? "A. At the post, near the wooden bed, sir.
"Q. Are you aware as to the whereabouts of that bolo now? "A. I do not know, sir."[16]
In People vs. Pletado[17] the Court, quoting from People vs. Bausing,[18] has reiter-ated the acceptable test in determining the presence of unlawful aggression; viz:
"x x x. (F)or unlawful aggression to be appreciated, there must be an actual, sudden, unexpected attack or imminent danger thereof, and not merely a threatening or intimidat-ing attitude (People vs. Pasco, Jr., supra; People vs. Rey, 172 SCRA 149 [1989]) and the accused must present proof of positively strong act of real aggression (Pacificar vs. Court of Appeals, 125 SCRA 716 [1983]; People vs. Aquiatan, 123 SCRA 501 [1983]; Peo-ple vs. Aquino, 124 SCRA 835 [1983]). Unlawful aggression must be such as to put in real peril the life or personal safety of the person defending himself or of a relative sought to be defended and not an imagined threat."[19]
By her own admission, appellant only thought that her husband would strike her. An-swering questions from the trial court, she testified:
"COURT:
"Q. Was he really about to strike you? "A. Yes, sir.
"Q. What made you say that?
"A. Because even before, he was doing that to me, sir.
"Q. But at that very precise moment, were you really certain that he was going to hit you?
"A. I am sure that he will hit me, sir.
"Q. Was it necessary to hit him with this palo-palo?
"A. I hit him because I defended myself, sir." (Italics supplied.)[20]
In fact, appellant's claim of self-defense was belied by her own daughter, Milagros, who declared that even before the victim could get his bolo, appellant already picked up her palo-palo and hit him.
"Q. You also made mention in your statement, particularly in question No. 6 to which you answered `nakarinig po ako ng kalabugan' what is that noise all about?
"A. Both of them were pulling the lawanit and as they were pulling the lawanit, Juan Ignacio then freed the lawanit and was about to get his bolo but my mother was able to get at once the palo-palo and hit Juan Ignacio, sir.
"x x x x x x x x x.
"Q. Mrs. Witness, you said during the cross-examination that the deceased tried to get a bolo, is that correct?
"A. Yes, sir.
