Criminal Law Set 4

7/24/2019 Criminal Law Set 4

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S4ce it to say that #hether it #as ects

on the #itnesses$ honesty"278esides, there #as clearly a mere imprecision o langage since

Pe&oro obviosly meant that he did not ta*e part in thephysical ta*ing o the drg rom the

person o appellant, bt he participated in the legalseizre or confscation thereo as the

investigator o their nit"

5e-t, appellant addces the argment that the t#entypeso bills allegedly confscated rom

him #ere not po#dered or fngerprinting prposes contrary to the normal procedre in by

bst operations"28his omission has been satisactorily e-plained by Pc"


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remar*s #as a4-ed appellant$s signatre" n the same manner, the receipt or the seized

property, hereinbeore mentioned, #as signed by appellant #herein he ac*no#ledged the

confscation o the mar*ed bills rom him"33

Bo#ever, #e fnd and hereby declare the aorementioned e-hibits inadmissible in evidence"

!ppellant$s conormance to these docments are declarations against interest and tacit

admissions o the crime charged" hey #ere obtained in violation o his right as a person ndercstodial investigation or the commission o an o%ense, there being nothing in the records to

sho# that he #as assisted by consel"34!lthogh appellant maniested dring the cstodial

investigation that he #aived his right to consel, the #aiver #as not made in #riting and in the

presence o consel,35hence #hatever incriminatory admission or conession may be

e-tracted rom him, either verbally or in #riting, is not allo#able in evidence" 368esides, the

arrest report is selserving and hearsay and can easily be concocted to implicate a sspect"

5ot#ithstanding the ob&ectionability o the aoresaid e-hibits, appellant cannot thereby be

e-tricated rom his predicament since his criminal participation in the illegal sale o mari&ana

has been s4ciently proven" he commission o the o%ense o illegal sale o prohibited drgs

re'ires merely the consmmation o the selling transaction37#hich happens the moment the

byer receives the drg rom the seller" 38n the present case, and in light o the preceding

discssion, this sale has been ascertained beyond any peradventre o dobt"

!ppellant then asseverates that it is improbable that he #old sell mari&ana to a total

stranger"39e ta*e this opportnity to once again reiterate the doctrinal rle that drg

pshing, #hen done on a small scale as in this case, belongs to that class o crimes that may

be committed at any time and in any place"40t is not contrary to hman e-perience or a drg

psher to sell to a total stranger,41or #hat matters is not an e-isting amiliarity bet#een the

byer and seller bt their agreement and the acts constitting the sale and delivery o the

mari&ana leaves"42hile there may be instances #here sch sale cold be improbable, ta*ing

into consideration the diverse circmstances o person, time and place, as #ell as the

incredibility o ho# the accsed spposedly acted on that occasion, #e can saely say that

those e-ceptional particlars are not present in this case"

:inally, appellant contends that he #as sb&ected to physical and mental tortre by the

arresting o4cers #hich cased him to escape rom Camp .livas the night he #as placed nder

cstody"43his he asserts to spport his e-planation as to ho# his signatres on the

docments earlier discssed #ere spposedly obtained by orce and coercion"

he doctrine is no# too #ell embedded in or &risprdence that or evidence to be believed, it

mst not only proceed rom the moth o a credible #itness bt mst be credible in itsel sch

as the common e-perience and observation o man*ind can approve as probable nder the

circmstances"44he evidence on record is beret o any spport or appellant$s allegation o

maltreatment" #o doctors, one or the prosection 45and the other or the deense,46testifed

on the absence o any telltale sign or indication o bodily in&ry, abrasions or contsions on the

person o appellant" hat is evident is that the case o his abdominal pain #as his peptic lcer

rom #hich he had been s%ering even beore his arrest"47Bis o#n brother even corroborated

that act, saying that appellant has had a history o bleeding peptic lcer"48

:rthermore, i it is tre that appellant #as maltreated at Camp .livas, he had no reason

#hatsoever or not divlging the same to his brother #ho #ent to see him at the camp ater his

arrest and dring his detention there"49Signifcantly, he also did not even report the matter to

the athorities nor fle appropriate charges against the alleged maleactors despite the

opportnity to do so50and #ith the legal services o consel being available to him" Sch

omissions nnel do#n to the conclsion that appellant$s story is a pre abrication"


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hese, and the events earlier discssed, sondly rete his allegations that his arrest #as

baseless and premeditated or the 5!7C.6 agents #ere determined to arrest him at all costs"

51Premeditated or not, appellant$s arrest #as only the clmination, the fnal act needed or his

isolation rom society and it #as providential that it came abot ater he #as caght in the very

act o illicit trade o prohibited drgs" !ccordingly, this opinion cold have conclded on a note

o a4rmance o the &dgment o the trial cort" Bo#ever, 7epblic !ct 5o" 9, as amended,

#as rther amended by 7epblic !ct 5o" E1 e%ective December 30, 0113,52#hich

spervenience necessarily a%ects the original disposition o this case and entails additional

'estions o la# #hich #e shall no# resolve"

he provisions o the aoresaid amendatory la#, pertinent to the ad&dication o the case at

bar, are to this e%ect?

Sec" 03" Sections 3, 9, , E, 2 and 1 o !rt" o 7epblic !ct 5o" 9, as

amended, *no#n as the Dangeros Drgs !ct o 01E, are hereby amended to

read as ollo#s?

--- --- ---

Sec" 9" Sale, Administration, Delivery, Distribution and

Transportation of Prohibited Drugs" F he penalty o reclusion

perpetuato death and a fne ranging rom fve hndred thosand

pesos to ten million pesos shall be imposed pon any person #ho,

nless athorized by la#, shall sell, administer, deliver, give a#ay

to another, distribte, dispatch in transit or transport any

prohibited drg, or shall act as a bro*er in any o sch

transactions"

--- --- ---

Sec" 0E" Section G, !rticle < o 7epblic !ct 5o" 9, as amended, *no#n as

the Dangeros Drgs !ct o 01E, is hereby amended to read as ollo#s?

Sec" G"Application of Penalties, Conscation and orfeiture of the

Proceeds or !nstrument of the Crime" F he penalties or o%enses

nder Sections 3, 9, E, 2 and 1 o !rticle and Sections 09, 09!,

0 and 0 o !rticle o this !ct shall be applied i the dangeros

drgs involved is in any o the ollo#ing 'antities?

--- --- ---

" EG grams or more o indian hemp or mari&ana

--- --- ---

.ther#ise, i the 'antity involved is less than the oregoing

'antities, the penalty shall range romprision correccional to

reclusion perpetua depending pon the 'antity"

0" Considering that herein appellant is being prosected or the sale o or tea bags o

mari&ana #ith a total #eight o only 3"2 grams and, in act, stands to be convicted or the sale

o only t#o o those tea bags, the initial in'iry #old be #hether the patently avorable


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provisions o 7epblic !ct

5o" E1 shold be given retroactive e%ect to entitle him to the lesser penalty provided

therender, prsant to !rticle o the 7evised Penal Code"

!lthogh 7epblic !ct 5o" 9 #as enacted as a special la#, albeit originally amendatory and

in sbstittion o the previos !rticles 01G to 019 o the 7evised Penal Code,53it has long been

settled that by orce o !rticle 0G o said Code the benefcient provisions o !rticle thereoapplies to and shall be given retrospective e%ect to crimes pnished by special la#s" 54he

e-ection in said article #old not apply to those convicted o drg o%enses since habital

delin'ency reers to convictions or the third time or more o the crimes o serios or less

serios physical in"uries, robo, hurto, estafa or alsifcation"55

Since, obviosly, the avorable provisions o 7epblic !ct 5o" E1 cold neither have then

been involved nor invo*ed in the present case, a corollary 'estion #old be #hether this

cort, at the present stage, can

sua sponte apply the provisions o said !rticle to redce the penalty to be imposed on

appellant" hat isse has li*e#ise been resolved in the cited case o People vs"#oran, et al",

ante",ths?

" " " " he plain precept contained in article o the Penal Code, declaring the

retroactivity o penal la#s in so ar as they are avorable to persons accsed o a

elony, #old be seless and ngatory i the corts o &stice #ere not nder

obligation to lfll sch dty, irrespective o #hether or not the accsed has

applied or it, &st as #old also all provisions relating to the prescription o the

crime and the penalty"

the &dgment #hich cold be a%ected and modifed by the redced penalties provided in

7epblic !ct 5o" E1 has already become fnal and e-ectory or the accsed is serving

sentence therender, then practice, procedre and pragmatic considerations #old #arrant

and necessitate the matter being broght to the &dicial athorities or relie nder a #rit o

habeas corpus"56

" Probably throgh oversight, an error on the matter o imposable penalties appears to have

been committed in the drating o the aoresaid la#H thereby calling or and necessitating

&dicial reconciliation and cratsmanship"

!s applied to the present case, Section 9 o 7epblic !ct 5o" 9, as no# rther amended,

imposes the penalty o reclusion perpetua to death and a fne ranging rom PGG,GGG"GG to

P0G,GGG,GGG"GG pon any person #ho shall nla#lly sell, administer, deliver, give a#ay,

distribte, dispatch in transit or transport any prohibited drg" hat penalty, according to the

amendment to Section G o the la#, shall be applied i #hat is involved is EG grams or more

o indian hemp or mari&anaH other#ise, i the 'antity involved is less, the penalty shall range

romprision correccional to reclusion perpetua depending pon the 'antity"

n other #ords, there is here an overlapping error in the provisions on the penalty o reclusion

perpetuaby reason o its dal imposition, that is, as the ma-imm o the penalty #here the

mari&ana is less than EG grams, and also as the minimm o the penalty #here the mari&ana

involved is EG grams or more" he same error has been committed #ith respect to the other

prohibited and reglated drgs provided in said Section G" o harmonize sch con>icting

provisions in order to give e%ect to the #hole la#,57#e hereby hold that the penalty to be

imposed #here the 'antity o the drgs involved is less than the 'antities stated in the frst

paragraph shall range romprision correccionalto reclusion temporal, and not reclusion

perpetua" his is also concordant #ith the ndamental rle in criminal la# that all dobts

shold be constred in a manner avorable to the accsed"


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3" here, as in this case, the 'antity o the dangeros drg is only 3"2 grams, hence covered

by the imposable range o penalties nder the second paragraph o Section G, as no#

modifed, the la# provides that the penalty shall be ta*en rom said range ;depending upon

the $uantity;o the drg involved in the case" he penalty in said second paragraph

constittes a comple- one composed o three distinct penalties, that is,prision correccional,

prision mayor, and reclusion temporal" n sch a sitation, the Code provides that each one

shall orm a period, #ith the lightest o them being the minimm, the ne-t as the medim, and

the most severe as the ma-imm period"58

.rdinarily, and prsant to !rticle 9 o the Code, the mitigating and aggravating

circmstances determine #hich period o sch comple- penalty

shall be imposed on the accsed" he pecliarity o the second paragraph of Section %&,

ho#ever, is its specifc mandate, above 'oted, that the penalty shall instead depend upon the

$uantity o the drg sb&ect o the criminal transaction"59!ccordingly, by #ay o e-ception to

!rticle EE o the Code and to sbserve the prpose o Section G o 7epblic !ct 5o" E1,

each o the aoresaid component penalties shall be considered as a principal imposable penalty

depending on the 'antity o the drg involved" hereby, the modiying circmstances #ill not

altogether be disregarded" Since each component penalty o the total comple- penalty #ill

have to be imposed separately as determined by the 'antity o the drg involved, then the

modiying circmstances can be sed to f- the proper period o that component penalty, as

shall hereater be e-plained"

t #old, thereore, be in line #ith the provisions o Section G in the conte-t o or aoresaid

disposition thereon that, nless there are compelling reasons or a deviation, the 'antities o

the drgs enmerated in its second paragraph be divided into three, #ith the reslting

'otient, and doble or treble the same, to be respectively the bases or allocating the penalty

proportionately among the three aoresaid periods according to the severity thereo" hs, i

the mari&ana involved is belo# G grams, the penalty to be imposed shall beprision

correccionalH rom G to 911 grams,prision mayorH and GG to

E91 grams, reclusion temporal" Parenthetically, fne is imposed as a con&nctive penalty only i

the penalty is reclsion perpeta to death" 60

5o#, considering the minimal 'antity o the mari&ana sb&ect o the case at bar, the penalty

oprision correccional is conse'ently indicated bt, again, another preliminary and cognate

isse has frst to be resolved"

9" Prision correccional has a dration o months and 0 day to years and, as a divisible

penalty, it consists o three periods as provided in the te-t o and illstrated in the table

provided by !rticle E o the Code" he 'estion is #hether or not in determining the penalty to

be imposed, #hich is here to be ta*en rom the penalty oprision correccional,the presence or

absence o mitigating, aggravating or other circmstances modiying criminal liability shold be

ta*en into accont"

e are not na#are o cases in the past #herein it #as held that, in imposing the penalty or

o%enses nder special la#s, the rles on mitigating or aggravating circmstances nder the

7evised Penal Code cannot and shold not be applied" ! revie# o sch doctrines as applied in

said cases, ho#ever, reveals that the reason thereor #as becase the special la#s involved

provided their o#n specifc penalties or the o%enses pnished therender, and #hich penalties

#ere not ta*en rom or #ith reerence to those in the 7evised Penal Code" Since the penalties

then provided by the special la#s concerned did not provide or the minimm, medim or

ma-imm periods, it #old conse'ently be impossible to consider the aorestated modiying

circmstances #hose main nction is to determine the period o the penalty in accordance

#ith the rles in !rticle 9 o the Code"


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his is also the rationale or the holding in previos cases that the provisions o the Code on the

gradation o penalties by degrees cold not be given spplementary application to special

la#s, since the penalties in the latter #ere not components o or contemplated in the scale o

penalties provided by !rticle E0 o the ormer" he sppletory e%ect o the 7evised Penal Code

to special la#s, as provided in !rticle 0G o the ormer, cannot be invo*ed #here there is a legal

or physical impossibility o, or a prohibition in the special la# against, sch spplementary

application"

he sitation, ho#ever, is di%erent #here althogh the o%ense is defned in and ostensibly

pnished nder a special la#, the penalty thereor is actally ta*en rom the 7evised Penal

Code in its technical nomenclatre and, necessarily, #ith its dration, correlation and legal

e%ects nder the system o penalties native to said Code" hen, as in this case, the la#

involved spea*s oprision correccional,in its technical sense nder the Code, it #old

conse'ently be both illogical and absrd to posit other#ise" 6ore on this later"

:or the nonce, #e hold that in the instant case the imposable penalty nder 7epblic !ct 5o"

9, as amended by 7epblic !ct 5o" E1, isprision correccional,to be ta*en rom the

medim period thereo prsant to !rticle 9 o the 7evised Penal Code, there being no

attendant mitigating or aggravating circmstance"

" !t this &nctre, a clarifcatory discssion o the developmental changes in the penalties

imposed or o%enses nder special la#s #old be necessary"

.riginally, those special la#s, &st as #as the conventional practice in the Inited States bt

di%erently rom the penalties provided in or 7evised Penal Code and its Spanish origins,

provided or one specifc penalty or a range o penalties #ith defnitive drations, sch as

imprisonment or one year or or one to fve years bt #ithot division into periods or any

technical stattory cognomen" his is the special la# contemplated in and reerred to at the

time la#s li*e the ndeterminate Sentence +a#61#ere passed dring the !merican regime"

Sbse'ently, a di%erent pattern emerged #hereby a special la# #old direct that an o%ense

therender shall be pnished nder the 7evised Penal Code and in the same manner provided

therein" nceptively, or instance, Common#ealth !ct 5o" 3G362penalizing nonpayment o

salaries and #ages #ith the periodicity prescribed therein, provided?

Sec" 9" :ailre o the employer to pay his employee or laborer as re'ired by

section one o this !ct, shallprima faciebe considered a rad committed by

sch employer against his employee or laborer by means o alse pretenses

similar to those mentioned in article three hndred and fteen, paragraph or,

sbparagraph t#o (a) o the 7evised Penal Code and shall bepunished in the

same manner as therein provided"63

hereater, special la#s #ere enacted #here the o%enses defned therein #ere specifcally

pnished by the penalties as technically named and nderstood in the 7evised Penal Code"

hese are e-emplifed by 7epblic !ct 5o" 0EGG (!ntiSbversion !ct) #here the penalties

ranged rom arresto mayor to

deathH64Presidential Decree 5o" 00 (!nti:encing Decree) #here the penalties rn rom

arresto mayor toprision mayorH and Presidential Decree

5o" 02 (illegal possession and other prohibited acts involving frearms), the penalties

#hereor may involveprision mayor, reclusion temporal, reclusion perpetuaor death"

!nother variant #orth mentioning is 7epblic !ct 5o" 31

(!ntiCarnapping !ct o 01E) #here the penalty is imprisonment or not less than 09 years and

2 months and not more than 0E years and 9 months, #hen committed #ithot violence or


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intimidation o persons or orce pon thingsH not less than 0E years and 9 months and not more

than 3G years, #hen committed #ith violence against or intimidation o any person, or orce

pon thingsH and lie imprisonment to death, #hen the o#ner, driver or occpant o the

carnapped vehicle is *illed"

ith respect to the frst e-ample, #here the penalties nder the special la# are di%erent rom

and are #ithot reerence or relation to those nder the 7evised Penal Code, there can be nosppletory e%ect o the rles or the application o penalties nder said Code or by other

relevant stattory provisions based on or applicable only to said rles or elonies nder the

Code" n this type o special la#, the legislative intendment is clear"

he same e-clsionary rle #old apply to the last given e-ample, 7epblic !ct 5o" 31"

hile it is tre that the penalty o 09 years and

2 months to 0E years and 9 months is virtally e'ivalent to the dration o the medim period

o reclusion temporal,sch technical term nder the 7evised Penal Code is not given to that

penalty or carnapping" 8esides, the other penalties or carnapping attended by the 'aliying

circmstances stated in the la# do not correspond to those in the Code" he rles on penalties

in the Code, thereore, cannot sppletorily apply to 7epblic !ct 5o" 31 and special la#s o

the same ormlation"

.n the other hand, the rles or the application o penalties and the correlative e%ects thereo

nder the 7evised Penal Code, as #ell as other stattory enactments onded pon and

applicable to sch provisions o the Code, have sppletory e%ect to the penalties nder the

ormer 7epblic !ct

5o" 0EGG and those no# provided nder Presidential Decrees 5os" 00 and 02" hile these

are special la#s, the act that the penalties or o%enses therender are those provided or in

the 7evised Penal code lcidly reveals the stattory intent to give the related provisions on

penalties or elonies nder the Code the corresponding application to said special la#s, in the

absence o any e-press or implicit proscription in these special la#s" o hold other#ise #old

be to sanction an indeensible &dicial trncation o an integrated system o penalties nder the

Code and its allied legislation, #hich cold never have been the intendment o Congress"

n People vs"#acatanda,65a prosection nder a special la# (Presidential Decree 5o" 33,

other#ise *no#n as the !ntiCattle 7stling +a# o 01E9), it #as contended by the prosection

that !rticle 9, paragraph , o the 7evised Penal Code shold not apply to said special la#" e

said therein that F

e do not agree #ith the Solicitor Jeneral that P"D" 33 is a special la# entirely

distinct from and unrelated to the 'evised Penal Code" :rom the natre o the

penalty imposed which is in terms of the classication and duration of penalties

as prescribed in the 'evised Penal Code,#hich is not or penalties as are

ordinarily imposed in special la#s, the intent seems clear that P"D" 33 shall be

deemed as an amendment o the 7evised Penal Code, #ith respect to the o%ense

o thet o large cattle (!rt" 30G) or otherwise to be sub"ect to applicable

provisions thereof such as !rticle 0G9 o the 7evised Penal Code " " " " !rticle 9

o the same Code shold, li*e#ise, be applicable, " " " " (=mphasis spplied")

6ore particlarly #ith regard to the sppletory e%ect o the rles on penalties in the 7evised

Penal Code to 7epblic !ct 5o" 9, in this case involving !rticle 3() o the Code, #e have

this more recent prononcement?

" " " Pointing ot that as provided in !rticle 0G the provisions o the 7evised Penal

Code shall be ;spplementary; to special la#s, this Cort held that #here the

special la# e-pressly grants to the cort discretion in applying the penalty


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prescribed or the o%ense, there is no room or the application o the provisions

o the Code " " " "

he Dangeros Drgs !ct o 01E, as amended by P"D" 5o" 03, contains no

e-plicit grant o discretion to the Cort in the application o the penalty

prescribed by the la#" !n such case, the court must be guided by the rules

prescribed by the 'evised Penal Code concerning the application of penalties#hich distill the ;deep legal thoght and centries o e-perience in the

administration o criminal la#s"; (=mphasis ors")66

Inder the aorestated considerations, in the case o the Dangeros Drgs !ct as no# amended

by 7epblic !ct 5o" E1 by the incorporation and prescription therein o the technical

penalties defned in and constitting integral parts o the three scales o penalties in the Code,

E #ith mch more reason shold the provisions o said Code on the appreciation and e%ects o

all attendant modiying circmstances apply in f-ing the penalty" +i*e#ise, the di%erent *inds

or classifcations o penalties and the rles or gradating

sch penalties by degrees shold have spplementary e%ect on 7epblic !ct 5o" 9, e-cept

i they #old reslt in absrdities as #ill no# be e-plained"

hile not s'arely in isse in this case, bt becase this aspect is involved in the discssion on

the role o modiying circmstances, #e have perorce to lay do#n the caveat that mitigating

circmstances shold be considered and applied only i they a%ect theperiodsand the degrees

o the penalties within rational limits"

Preatorily, #hat ordinarily are involved in the gradation and conse'ently determine the

degree o the penalty, in accordance #ith the rles in !rticle 0 o the Code as applied to the

scale o penalties in !rticle E0, are the stage o e-ection o the crime and the natre o the

participation o the accsed" Bo#ever, nder paragraph o !rticle 9, #hen there are t#o or

more ordinary mitigating circmstances and no aggravating circmstance, the penalty shall be

redced by one degree" !lso, the presence o privileged mitigating circmstances, as provided

in !rticles E and 2, can redce the penalty by one or t#o degrees, or even more" hese

provisions o !rticles 9(), E and 2 shold not apply in totoin the determination o the

proper penalty nder the aorestated second paragraph o section G o 7epblic !ct 5o" 9,

to avoid anomalos reslts #hich cold not have been contemplated by the legislatre"

hs, paragraph o !rticle 0 provides that #hen the la# prescribes a penalty in some

manner not specially provided or in the or preceding paragraphs thereo, the corts shall

proceed by analogy there#ith" Bence, #hen the penalty prescribed or the crime consists o

one or t#o penalties to be imposed in their ll e-tent, the penalty ne-t lo#er in degree shall

li*e#ise consist o as many penalties #hich ollo# the ormer in the scale in !rticle E0" this

rle #ere to be applied, and since the comple- penalty in this

case consists o three discrete penalties in their ll e-tent, that is,

prision correccional, prision mayor and reclusion temporal,then one degree lo#er #old be

arresto menor,destierro and arresto mayor" here cold, ho#ever, be no rther redction by

still one or t#o degrees, #hich mst each li*e#ise consist o three penalties, since only the

penalties o fne and pblic censre remain in the scale"

he Cort rles, thereore, that #hile modiying circmstances may be appreciated to

determine theperiodso the corresponding penalties, or even redce the penalty by degrees,

in no case shold sch gradation o penalties redce the imposable penalty beyond or lo#er

thanprision correccional" t is or this reason that the three component penalties in the second

paragraph o Section G shall each be considered as an independent principal penalty, and that

the lo#est penalty shold in any event beprision correccional in order not to depreciate the

seriosness o drg o%enses" !nterpretatio enda est ut res magis valeat $uam pereat" Sch


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interpretation is to be adopted so that the la# may contine to have e4cacy rather than ail" !

perect &dicial soltion cannot be orged rom an imperect la#, #hich impasse shold no# be

the concern o and is accordingly addressed to Congress"

" he fnal 'ery is #hether or not the ndeterminate Sentence +a# is applicable to the case

no# beore s" !pparently it does, since drg o%enses are not inclded in nor has appellant

committed any act #hich #old pt him #ithin the e-ceptions to said la# and the penalty to beimposed does not involve reclusion perpetua or death, provided, o corse, that the penalty as

ltimately resolved #ill e-ceed one year o imprisonment"68he more important aspect,

ho#ever, is ho# the indeterminate sentence shall be ascertained"

t is tre that Section 0 o said la#, ater providing or indeterminate sentence or an o%ense

nder the 7evised Penal Code, states that ;i the o%ense is pnished by any other la#, the

cort shall sentence the accsed to an indeterminate sentence, the ma-imm term o #hich

shall not e-ceed the ma-imm f-ed by said la# and the minimm shall not be less than the

minimm term prescribed by the same"; e hold that this 'oted portion o the section

indbitably reers to an o%ense nder a special la# #herein the penalty imposed #as not ta*en

rom and is #ithot reerence to the 7evised Penal Code, as discssed in the preceding

illstrations, sch that it may be said that the ;o%ense is pnished; nder that la#"

here can be no sensible debate that the aore'oted rle on indeterminate sentence or

o%enses nder special la#s #as necessary becase o the natre o the ormer type o

penalties nder said la#s #hich #ere not inclded or contemplated in the scale o penalties in

!rticle E0 o the Code, hence there cold be no minimm ;#ithin the range o the penalty ne-t

lo#er to that prescribed by the Code or the o%ense,; as is the rle or elonies therein" n the

illstrative e-amples o penalties in special la#s hereinbeore provided, this rle applied, and

#old still apply, only to the frst and last e-amples" :rthermore, considering the vintage o

!ct 5o" 90G3 as earlier noted, this holding is bt an application and is &stifed nder the rle o

contemporanea e(positio"69

e repeat, 7epblic !ct 5o" 9, as no# amended by 7epblic !ct 5o" E1, has n'alifedly

adopted the penalties nder the 7evised Penal Code in their technical terms, hence #ith their

technical signifcation and e%ects" n act, or prposes o determining the ma(imum o said

sentence, #e

have applied the provisions o the amended Section G o said la# to arrive atprision

correccional and !rticle 9 o the Code to impose the same in the medim period" Sch

o%ense, althogh provided or in a special la#, is no# in e%ectpunished by and under the

'evised Penal Code" Correlatively, to determine the minimm, #e mst apply the frst part o

the aoresaid Section 0 #hich directs that ;in imposing a prison sentence or an o%ense

pnished by the 7evised Penal Code, or its amendments, the cort shall sentence the accsed

to an indeterminate sentence the ma(imumterm o #hich shall be that #hich, in vie# o the

attending circmstances, cold be properly imposedunder the rules of said Code,and the

minimum#hich shall be #ithin the range o thepenalty ne(t lower to that prescribed by the

Codeor the o%ense"; (=mphasis ors")

! divergent pedantic application #old not only be ot o conte-t bt also an admission o the

hornboo* ma-im that $ui haeret inlitera haeret in cortice" :ortnately, this Cort has never

gone only s*indeep in its constrction o !ct" 5o" 90G3 by a mere literal appreciation o its

provisions" hs, #ith regard to the phrase in Section thereo e-cepting rom its coverage

;persons convicted o o%ensespunished#ith death penalty or life imprisonment,; #e have

held that #hat is considered is the penalty actally imposedand not the penalty imposable

nder the la#,70and that reclusion perpetuais li*e#ise embraced therein althogh #hat the

la# states is ;lie imprisonment;"


11/34

hat irresistibly emerges rom the preceding dis'isition, thereore, is that nder the

concrrence o the principles o literal interpretation, #hich have been rationalized by

comparative decisions o this CortH o historical interpretation, as e-plicated by the

antecedents o the la# and related contemporaneos legislationH and o strctral

interpretation, considering the interrelation o the penalties in the Code as spplemented by

!ct 5o" 90G3 in an integrated scheme o penalties, it ollo#s that the minimm o the

indeterminate sentence in this case shall be thepenalty ne(t lowerto that prescribed or the

o%ense" hereby #e shall have interpreted the seeming ambigity in Section 0 o !ct 5o" 90G3

in sch a #ay as to harmonize la#s #ith la#s, #hich is the best mode o interpretation"71

he indeterminate Sentence +a# is a legal and social measre o compassion, and shold be

liberally interpreted in avor o the accsed"72he ;minimm; sentence is merely a period at

#hich, and not beore, as a matter o grace and not o right, the prisoner may merely be

allo#ed to serve the balance o his sentence otside o his confnement"73t does not

constitte the totality o the penalty since thereater he still has to contine serving the rest o

his sentence nder set conditions" hat minimm is only the period #hen the convict$s

eligibility or parole may be considered" n act, his release on parole may readily be denied i

he is ond n#orthy thereo, or his reincarceration may be ordered on legal gronds, even i

he has served the minimm sentence"

t is ths both amsing and bemsing i, in the case at bar, appellant shold be begrdged the

beneft o a minimm sentence #ithin the range o arresto mayor,the penalty ne-t lo#er to

prision correccional#hich is the ma-imm range #e have f-ed throgh the application o

!rticles 0 and E0 o the 7evised Penal Code" :or, #ith ealty to the la#, the cort may set the

minimm sentence at months o arresto mayor,instead o months and 0 day oprision

correccional" he di%erence, #hich cold thereby even involve only one day, is hardly #orth

the creation o an overrated tempest in the &dicial teapot"

!CC.7D5J+K, nder all the oregoing premises, the &dgment o conviction rendered by the

cort a 'o against accsedappellant 6artin Simon y Snga is !::76=D, bt #ith the

6.D:C!.5 that he shold be, as he hereby is, sentenced to serve an indeterminate penalty

o si- () months o arresto mayor,as the minimm, to si- () years oprision correccional,as

the ma-imm thereo"

S. .7D=7=D"

)arvasa, C*+*, Cru, Padilla, -idin, 'omero, #elo, Puno, .itug, /apunan and #endoa, ++*,

concur*

-ellosillo, +*, is on leave*

Separate Opinions

DAVIDE, JR.,J., concrring and dissenting?


12/34

am still nable to agree #ith the vie# that (a) in appropriate cases #here the penalty to be

imposed #old beprision correccionalprsant to the second paragraph o Section G o 7"!"

5o" 9, as amended by Section 0E o 7"!" 5o" E1, the sentence to be meted ot, applying

the ndeterminate Sentence +a# (!ct 5o" 90G3, as amended), shold be that #hose minimm

is #ithin the range o the penalty ne-t lo#er, i"e", arresto mayorH and (b) the presence o t#o or

more mitigating circmstances not o%set by any mitigating circmstances or o a privileged

mitigating circmstance shall not redce the penalty by one or t#o degrees i the penalty to be

imposed, ta*ing into accont the 'antity o the dangeros drgs involved, #old beprision

correccional"

he frst vie# is based on the proposition that since 7"!" 5o" E1 had n'alifedly adopted

the penalties nder the 7evised Penal Code in their technical terms, hence also their technical

signifcation and e%ects, then #hat shold govern is the frst part o Section 0 o the

ndeterminate Sentence +a# #hich directs that?

in imposing a prison sentence or an o%ense pnished by the 7evised Penal

Code, or its amendments, the cort shall sentence the accsed to an

indeterminate sentence the ma-imm term o #hich shall be that #hich, in vie#

o the attending circmstances, cold be properly imposed nder the rles o the

said Code, and the minimm #hich shall be #ithin the range o the penalty ne-t

lo#er to that prescribed by the Code or the o%ense"

=lse#ise stated, by the adoption o the penalties provided or in the 7evised Penal Code or the

o%enses penalized nder the Dangeros Drgs !ct (7"!" 5o" 9), as amended, the latter

o%enses #old no# be considered as pnished nder the 7evised Penal Code or prposes o

the ndeterminate Sentence +a#"

Section 0 o the ndeterminate Sentence +a# (!ct" 5o" 90G3, as amended by !ct" 5o" 9 and

7"!" 5o" 9G3) also provides that?

if the o0ense is punished by any other law, the court shall sentence the accused

to an indeterminate sentence, the ma(imum term of which shall not e(ceed the

ma(imum (ed by said law and the minimum shall not be less than the

minimum prescribed by the same (=mphasis spplied)"

here are, thereore, t#o categories o o%enses #hich shold be ta*en into accont in the

application o the ndeterminate Sentence +a#? (0) o%enses pnished by the 7evised Penal

Code, and () o%enses pnished by other la#s (or special la#s)"

he o%ensespunished by the 'evised Penal Code are those defned and penalized in 8oo*

thereo, #hich is ths appropriately titled C76=S !5D P=5!+=S" o simpliy rther, a crime is

deemedpunished under the 'evised Penal Code i it is defned by it, and none other, as a

crime and is pnished by a penalty #hich is inclded in the classifcation o Penalties in Chapter

, itle o 8oo* thereo"

.n the other hand, an o%ense is considered pnished nder any other law(or special la#) i it

is not defned and penalized by the 7evised Penal Code bt by sch other la#"

t is ths clear that an o%ense ispunished by the 'evised Penal Codei both its defnition and

the penalty thereor are ond in the said Code, and it is deemed pnished by a special la# i

its defnition and the penalty thereor are ond in the special la#" hat the latter imports or

borro#s rom the 7evised Penal Code its nomenclatre o penalties does not ma*e an o%ense in


13/34

the special la#punished byorpunishable underthe 7evised Penal Code" he reason is 'ite

simple" t is still the special la# that defnes the o%ense and imposes a penalty thereor,

althogh it adopts the Code$s nomenclatre o penalties" n short, the mere se by a special

la# o a penalty ond in the 7evised Penal Code can by no means ma*e an o%ense therender

an o%ense ;pnished or pnishable; by the 7evised Penal Code"

hs, cannot sbscribe to the vie# that since 7"!" 5o" E1 had adopted the penaltiesprescribed by the 7evised Penal Code in drg cases, o%enses related to drgs shold no# be

considered aspunished under the 'evised Penal Code" that #ere so, then #e are also bond,

inelctably, to declare that sch o%enses are mala in se and to apply the !rticles o the 7evised

Penal Code regarding the stages o a elony (!rticle ), the natre o participation (!rticle 0),

accessory penalties (!rticles 9G9), application o penalties to principals, accomplices, and

accessories (!rticle 9 et se$"), comple- crimes (!rticle 92), and gradation o penalties

(!rticle 0), among others" e cannot do other#ise #ithot being dra#n to an inconsistent

postre #hich is e-tremely hard to &stiy"

respectlly sbmit then that the adoption by the Dangeros Drgs !ct o the penalties in the

7evised Penal Code does not ma*e an o%ense nder the Dangeros Drgs !ct an o%ense

punished by the 7evised Penal Code" Conse'ently, #here the proper penalty to be imposed

nder Section G o the Dangeros Drgs !ct isprisioncorreccional, then, applying the

ndeterminate Sentence +a#, the indeterminate sentence to be meted on the accsed shold

be that #hose minimumshold not be less than the minimm prescribed by the special la#

(the Dangeros Drgs !ct), i"e", not lo#er than si- () months and one (0) day oprision

correccional"

he ma&ority opinion holds the vie# that #hile the penalty provided or in Section G o the

Dangeros Drgs !ct is a comple- one composed o three distinct penalties, vi", prision

correccional, prision mayor,and reclusion temporal,and that prsant to !rticle EE o the

7evised Penal Code, each shold orm a period, #ith the lightest o them being the minimm,

the ne-t as the medim, and the most severe as the ma-imm, yet, considering that nder the

said second paragraph o Section G the penalty depends on the $uantityo the drg sb&ect o

the criminal transaction, then by #ay o e-ception to !rticle EE o the 7evised Penal Code and

to sbserve the prpose o Section G, as amended, each o the aoresaid component penalties

shall be considered as a principal penalty depending on the 'antity o the drg involved"

hereater, applying the modiying circmstances prsant to !rticle 9 o the 7evised Penal

Code, the proper period o the component penalty shall then be f-ed"

o illstrate, i the 'antity o the drgs involved (e"g", mari&ana belo# G grams) the proper

principal penalty shold beprisioncorreccional, bt there is one mitigating and no aggravating

circmstance, then the penalty to be imposed shold beprisioncorreccional in its minimum

period" Ket, the ma&ority opinion pts a limit to sch a rle" t declares?

he Cort rles, thereore, that #hile modiying circmstances may be

appreciated to determine the periods o the corresponding penalties, or even

redce the penalty by degrees, in no case shold sch gradation o penalties

redce the imposable penalty beyond or lo#er than

prision correccional" t is or this reason that the three component penalties in

the second paragraph o Section G shall each be considered as an independent

principal penalty, and that the lo#est penalty shold in any event beprision

correccional in order to depreciate the seriosness o drg o%enses"


14/34

Simply pt, this rle #old allo# the redction rom reclusion

temporalF i it is the penalty to be imposed on the basis o the 'antity o the drgs involved

F by t#o degrees, or toprision correccional,i there are t#o or more mitigating circmstances

and no aggravating circmstance is present (paragraph , !rticle 9, 7evised Penal Code) or i

there is a privileged mitigating circmstances o, say, minority (!rticle 2, 7evised Penal Code),

or nder circmstances covered by !rticle 1 o the 7evised Penal Code" Ket, i the proper

penalty to be imposed isprision mayor,regardless o the act that a redction by t#o degrees

is proper, it shold only be redced by one degree becase the rle does not allo# a redction

beyondprision correccional" :inally, i the proper penalty to be imposed isprision correccional,

no redction at all #old be allo#ed"

fnd the &stifcation or the rle to be arbitrary and nair" t is arbitrary becase #ithin the

same second paragraph involving the same range o penalty, #e both allowand disallowthe

application o !rticle 9(), !rticle 2, and !rticle 1 o the 7evised Penal Code" he reason or

the disallo#ance, vi", in order not to depreciate the seriosness o drg o%enses, is

nconvincing becase Section G o the Dangeros Drgs !ct, as amended by 7"!"

5o" E1, has in act ;depreciated; the seriosness o drg o%enses by providing 'antity as

basis or the determination o the proper penalty and limitingneonly to cases pnishable by

reclusion perpetuato death" t is nair becase an accsed #ho is ond gilty o possessing

6.7= dangeros

drgs F say GG to E91 grams o mari&ana, in #hich case the penalty to be imposed #old be

reclusion temporalF may only be sentenced to si- () months and one (0) day oprision

correccionalminimm becase o privileged mitigating circmstances" Ket, an accsed #ho is

ond gilty o possession o only one (0) gram o mari&ana F in #hich case the penalty to be

imposed isprision correccionalF #old not be entitled to a redction thereo even i he has

the same nmber o privileged mitigating circmstances as the ormer has"

!lso, i the privileged mitigating circmstance happens to be the minority o the accsed, then

he is entitled to the redction o the penalty as a matter o right prsant to !rticle 2 o the

7evised Penal Code, #hich reads?

!rt" 2" Penalty to be imposed upon a person under eighteen years of age" F

hen the o%ender is a minor nder eighteen years and his case is one coming

nder the provisions o the paragraph ne-t to the last o !rticle 2G o this Code,

the ollo#ing rles shall be observed?

0" Ipon a person nder fteen bt over nine years o age, #ho is

not e-empted rom liability by reason o the cort having declared

that he acted #ith discernment, a discretionary penalty shall be

imposed, bt al#ays lo#er by t#o degrees at least than that

prescribed by la# or the crime #hich he committed"

" Ipon a person over fteen and nder eighteen years o age the

penalty ne-t lover than that prescribed by la# shall be imposed,

bt al#ays in the proper period"

do not thin* that as to the second paragraph o Section G o the Dangeros Drgs !ct, as

amended by Section 0E o 7"!" 5o" E1, #e can be at liberty to apply the 7evised Penal Code

in one aspect and not to apply it in another"

eliciano and 1uiason, ++*, concur*


15/34

Separate Opinions

DAVIDE, JR.,J., concrring and dissenting?

am still nable to agree #ith the vie# that (a) in appropriate cases #here the penalty to be

imposed #old beprision correccionalprsant to the second paragraph o Section G o 7"!"

5o" 9, as amended by Section 0E o 7"!" 5o" E1, the sentence to be meted ot, applyingthe ndeterminate Sentence +a# (!ct 5o" 90G3, as amended), shold be that #hose minimm

is #ithin the range o the penalty ne-t lo#er, i"e", arresto mayorH and (b) the presence o t#o or

more mitigating circmstances not o%set by any mitigating circmstances or o a privileged

mitigating circmstance shall not redce the penalty by one or t#o degrees i the penalty to be

imposed, ta*ing into accont the 'antity o the dangeros drgs involved, #old beprision

correccional"

he frst vie# is based on the proposition that since 7"!" 5o" E1 had n'alifedly adopted

the penalties nder the 7evised Penal Code in their technical terms, hence also their technicalsignifcation and e%ects, then #hat shold govern is the frst part o Section 0 o the

ndeterminate Sentence +a# #hich directs that?

in imposing a prison sentence or an o%ense pnished by the 7evised Penal

Code, or its amendments, the cort shall sentence the accsed to an

indeterminate sentence the ma-imm term o #hich shall be that #hich, in vie#

o the attending circmstances, cold be properly imposed nder the rles o the

said Code, and the minimm #hich shall be #ithin the range o the penalty ne-t

lo#er to that prescribed by the Code or the o%ense"

=lse#ise stated, by the adoption o the penalties provided or in the 7evised Penal Code or theo%enses penalized nder the Dangeros Drgs !ct (7"!" 5o" 9), as amended, the latter

o%enses #old no# be considered as pnished nder the 7evised Penal Code or prposes o

the ndeterminate Sentence +a#"

Section 0 o the ndeterminate Sentence +a# (!ct" 5o" 90G3, as amended by !ct" 5o" 9 and

7"!" 5o" 9G3) also provides that?

if the o0ense is punished by any other law, the court shall sentence the accused

to an indeterminate sentence, the ma(imum term of which shall not e(ceed the

ma(imum (ed by said law and the minimum shall not be less than the

minimum prescribed by the same (=mphasis spplied)"

here are, thereore, t#o categories o o%enses #hich shold be ta*en into accont in the

application o the ndeterminate Sentence +a#? (0) o%enses pnished by the 7evised Penal

Code, and () o%enses pnished by other la#s (or special la#s)"

he o%ensespunished by the 'evised Penal Code are those defned and penalized in 8oo*

thereo, #hich is ths appropriately titled C76=S !5D P=5!+=S" o simpliy rther, a crime is

deemedpunished under the 'evised Penal Code i it is defned by it, and none other, as a

crime and is pnished by a penalty #hich is inclded in the classifcation o Penalties in Chapter

, itle o 8oo* thereo"

.n the other hand, an o%ense is considered pnished nder any other law(or special la#) i it

is not defned and penalized by the 7evised Penal Code bt by sch other la#"


16/34

t is ths clear that an o%ense ispunished by the 'evised Penal Codei both its defnition and

the penalty thereor are ond in the said Code, and it is deemed pnished by a special la# i

its defnition and the penalty thereor are ond in the special la#" hat the latter imports or

borro#s rom the 7evised Penal Code its nomenclatre o penalties does not ma*e an o%ense in

the special la#punished byorpunishable underthe 7evised Penal Code" he reason is 'ite

simple" t is still the special la# that defnes the o%ense and imposes a penalty thereor,

althogh it adopts the Code$s nomenclatre o penalties" n short, the mere se by a special

la# o a penalty ond in the 7evised Penal Code can by no means ma*e an o%ense therender

an o%ense ;pnished or pnishable; by the 7evised Penal Code"

hs, cannot sbscribe to the vie# that since 7"!" 5o" E1 had adopted the penalties

prescribed by the 7evised Penal Code in drg cases, o%enses related to drgs shold no# be

considered aspunished under the 'evised Penal Code" that #ere so, then #e are also bond,

inelctably, to declare that sch o%enses are mala in se and to apply the !rticles o the 7evised

Penal Code regarding the stages o a elony (!rticle ), the natre o participation (!rticle 0),

accessory penalties (!rticles 9G9), application o penalties to principals, accomplices, and

accessories (!rticle 9 et se$"), comple- crimes (!rticle 92), and gradation o penalties

(!rticle 0), among others" e cannot do other#ise #ithot being dra#n to an inconsistent

postre #hich is e-tremely hard to &stiy"

respectlly sbmit then that the adoption by the Dangeros Drgs !ct o the penalties in the

7evised Penal Code does not ma*e an o%ense nder the Dangeros Drgs !ct an o%ense

punished by the 7evised Penal Code" Conse'ently, #here the proper penalty to be imposed

nder Section G o the Dangeros Drgs !ct isprisioncorreccional, then, applying the

ndeterminate Sentence +a#, the indeterminate sentence to be meted on the accsed shold

be that #hose minimumshold not be less than the minimm prescribed by the special la#

(the Dangeros Drgs !ct), i"e", not lo#er than si- () months and one (0) day oprision

correccional"

he ma&ority opinion holds the vie# that #hile the penalty provided or in Section G o the

Dangeros Drgs !ct is a comple- one composed o three distinct penalties, vi", prision

correccional, prision mayor,and reclusion temporal,and that prsant to !rticle EE o the

7evised Penal Code, each shold orm a period, #ith the lightest o them being the minimm,

the ne-t as the medim, and the most severe as the ma-imm, yet, considering that nder the

said second paragraph o Section G the penalty depends on the $uantityo the drg sb&ect o

the criminal transaction, then by #ay o e-ception to !rticle EE o the 7evised Penal Code and

to sbserve the prpose o Section G, as amended, each o the aoresaid component penalties

shall be considered as a principal penalty depending on the 'antity o the drg involved"

hereater, applying the modiying circmstances prsant to !rticle 9 o the 7evised Penal

Code, the proper period o the component penalty shall then be f-ed"

o illstrate, i the 'antity o the drgs involved (e"g", mari&ana belo# G grams) the proper

principal penalty shold beprisioncorreccional, bt there is one mitigating and no aggravating

circmstance, then the penalty to be imposed shold beprisioncorreccional in its minimum

period" Ket, the ma&ority opinion pts a limit to sch a rle" t declares?

he Cort rles, thereore, that #hile modiying circmstances may be

appreciated to determine the periods o the corresponding penalties, or even

redce the penalty by degrees, in no case shold sch gradation o penalties

redce the imposable penalty beyond or lo#er than

prision correccional" t is or this reason that the three component penalties in

the second paragraph o Section G shall each be considered as an independent


17/34

principal penalty, and that the lo#est penalty shold in any event beprision

correccional in order to depreciate the seriosness o drg o%enses"

Simply pt, this rle #old allo# the redction rom reclusion

temporalF i it is the penalty to be imposed on the basis o the 'antity o the drgs involved

F by t#o degrees, or toprision correccional,i there are t#o or more mitigating circmstances

and no aggravating circmstance is present (paragraph , !rticle 9, 7evised Penal Code) or ithere is a privileged mitigating circmstances o, say, minority (!rticle 2, 7evised Penal Code),

or nder circmstances covered by !rticle 1 o the 7evised Penal Code" Ket, i the proper

penalty to be imposed isprision mayor,regardless o the act that a redction by t#o degrees

is proper, it shold only be redced by one degree becase the rle does not allo# a redction

beyondprision correccional" :inally, i the proper penalty to be imposed isprision correccional,

no redction at all #old be allo#ed"

fnd the &stifcation or the rle to be arbitrary and nair" t is arbitrary becase #ithin the

same second paragraph involving the same range o penalty, #e both allowand disallowthe

application o !rticle 9(), !rticle 2, and !rticle 1 o the 7evised Penal Code" he reason or

the disallo#ance, vi", in order not to depreciate the seriosness o drg o%enses, is

nconvincing becase Section G o the Dangeros Drgs !ct, as amended by 7"!"

5o" E1, has in act ;depreciated; the seriosness o drg o%enses by providing 'antity as

basis or the determination o the proper penalty and limitingneonly to cases pnishable by

reclusion perpetuato death" t is nair becase an accsed #ho is ond gilty o possessing

6.7= dangeros

drgs F say GG to E91 grams o mari&ana, in #hich case the penalty to be imposed #old be

reclusion temporalF may only be sentenced to si- () months and one (0) day oprision

correccionalminimm becase o privileged mitigating circmstances" Ket, an accsed #ho is

ond gilty o possession o only one (0) gram o mari&ana F in #hich case the penalty to be

imposed isprision correccionalF #old not be entitled to a redction thereo even i he has

the same nmber o privileged mitigating circmstances as the ormer has"

!lso, i the privileged mitigating circmstance happens to be the minority o the accsed, then

he is entitled to the redction o the penalty as a matter o right prsant to !rticle 2 o the

7evised Penal Code, #hich reads?

!rt" 2" Penalty to be imposed upon a person under eighteen years of age" F

hen the o%ender is a minor nder eighteen years and his case is one coming

nder the provisions o the paragraph ne-t to the last o !rticle 2G o this Code,

the ollo#ing rles shall be observed?

0" Ipon a person nder fteen bt over nine years o age, #ho is

not e-empted rom liability by reason o the cort having declared

that he acted #ith discernment, a discretionary penalty shall be

imposed, bt al#ays lo#er by t#o degrees at least than that

prescribed by la# or the crime #hich he committed"

" Ipon a person over fteen and nder eighteen years o age the

penalty ne-t lover than that prescribed by la# shall be imposed,

bt al#ays in the proper period"

do not thin* that as to the second paragraph o Section G o the Dangeros Drgs !ct, as

amended by Section 0E o 7"!" 5o" E1, #e can be at liberty to apply the 7evised Penal Code

in one aspect and not to apply it in another"

eliciano and 1uiason, ++*, concur*


18/34

Philippine+a#"inoLMrisprdenceL 019EL !prilLPhilippine+a#"inoLMrisprdenceL Phil" 7ep"L


19/34

P" NDonde ha encontrado sted las heridas, en 'e parte del cerpoA F 7" =n la cabeza, en ssbrazos, en ss manos, en la mandibla inerior, en la parte rente de s cello, en s pechoderecho, y tambien en el pecho iz'ierdo, y s dedo meOi'e habia volado, se habia cortado, yotras per'eOas heridas mas"P" N=n la cabeza, vio sted heridasA F 7" Si, seOor"P" NCantas heridasA F 7" Ina herida en la region parietal derecha y na contsion en lacorona de la cabeza"

P" N


20/34

by appellant dring their handtohand fght ater both had gotten p" he learned trial &dgesaid?he evidence addced by the prosection and the deense in spport o their respectivetheories o the case vary materially on certain points" Some o these acts have to be admittedand some have to be re&ected #ith the end in vie# o arriving at the trth" o the mind o theCort, #hat really happened in the case at bar, as can de disclosed by the records, #hich leadto the *illing o the deceased on that atal morning o 6ay 1, 019 (shold be 0193), is as

ollo#s? - - - - - - - - -n the morning o 6ay 1, 0193, #hile Dioscoro !lconga #as alone in the gardhoseperorming his dties as gard or ;ronda; in 8arrio Santol, the deceased Silverio 8arion passedby #ith a ;pingahan;" hat #as the frst time the deceased and the accsed !lconga had metsince that eventl night o 6ay Eth in the gambling hose o Jepes" Ipon seeing the accsed!lconga, #ho #as then seated in the gardhose, the deceased cried? ;Coroy, this is no# thebrea*ast; hese #ords o #arning #ere immediately ollo#ed by t#o ormidable s#ings o the;pingahan; directed at the accsed !lconga #hich ailed to hit him" !lconga #as able to avoidthe blo#s by alling to the grond and cra#ling on his abdomen ntil he #as otside thegardhose" he deceased ollo#ed him and #hile in the act o delivering the third blo#,Dioscoro !lconga fred at him #ith his revolver thereby stopping the blo# in midair" hedeceased ell to the grond momentarily and pon rising to his eet, he dre# orth a dagger"

he accsed !lconga resorted to his bolo and both persons being armed, a handtohand fghtollo#ed" he deceased having sstained several #onds rom the hands o !lconga, ran a#ay#ith the latter close to his heels"he oregoing statement o the pertinent acts by the learned trial &dge is in sbstantialagreement #ith those ond by s and narrated in the frst paragraphs o this decision" Iponthose acts the 'estion arises #hether #hen the deceased started to rn and >ee, orthereater ntil he died, there #as any provocation given by him rom appellant to prse andrther to attac* him" t #ill be recalled, to be given #ith, that the frst stage o the fght #asprovo*ed #hen the deceased said to appellant ;Cory, this is no# the brea*ast,; or ;his is yorbrea*ast,; ollo#ed orth#ith by a s#ing or t#o o his ;pingahan"; hese #ords #ithot theimmediately ollo#ing attac* #ith the ;pingahan; #old not have been ttered, #e can saelyassme, since sch an tterance alone #old have been entirely meaningless" t #as theattac4,thereore, that e%ectively constitted the provocation, the tterance being, at best,

merely a preclde to the attac*" !t any rate, the 'oted #ords by themselves, #ithot thedeceased$s act immediately ollo#ing them, #old certainly not have been considered as4cient provocation to mitigate appellant$s liability in *illing or in&ring the deceased" :orprovocation in order to be a mitigating circmstance mst besu5cient and immediatelypreceding the act" (7evised Penal Code, article 03, 5o" 9")Inder the doctrine in Inited Statesvs*ed #ithothaving in>icted so mch as a scratch pon appellant, bt ater, pon the other hand, havingbeen #onded #ith one revolver shot and several bolo slashes, as aoresaid, the right oappellant to in>ict in&ry pon him, ceased absolutelyF appellant ;had no right to prse, noright to *ill or in&re; said deceased F or the reason that ;a >eeing man is not dangeros tothe one rom #hom he >ees"; the la#, as interpreted and applied by this Cort in the


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o that contry, #hich #as the sorce o or o#n e-isting 7evised Penal Code, that ;adecada;meansproportionateto the damage cased by the act"


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believe, be n&stifably e-tending the doctrine o the 7ivera case to an e-treme not thereincontemplated"Inder article 91, in relation #ith article 9, 5o" , o the 7evised Penal Code, the crimecommitted by appellant is pnishable by reclusion temporalin its minimm period, #hich#old be rom 0 years and 0 day to 09 years and 2 months" Bo#ever, in imposing thepenalty, #e ta*e into consideration the provisions o section 0 o the ndeterminate Sentence+a# (!ct 5o" 90G3), as amended by !ct 5o" 9" !ccordingly, #e fnd appellant gilty o the

aoresaid crime o homicide and sentence him to an indeterminate penalty o rom years and0 day oprision mayorto 09 years and 2 months o reclusion temporal, to indemniy the heirso the deceased in the sm o P,GGG, and to pay the costs"!s ths modifed, the &dgment appealed rom is hereby a4rmed" So ordered"Pablo, -engon, -riones, 6ontiveros, Padilla, and Tuason, ++*,concr"/ORA", C.J. certiy that 6r" Mstice :eria concrs in this decision"

Separate Opinions%ARAS,J., dissenting ? agree to the statement o acts in so ar as it concern #hat is called by the ma&ority the frststage o the fght" he ollo#ing narration dealing #ith the second stage is not ho#ever, inaccordance #ith the record? ;Baving sstained several #onds, the deceased ran a#ay bt #asollo#ed by the accsed (t"s"n" p" )" !ter rnning a distance o abot GG meters (t"s"n" pp"

0, 0G2), the deceased #as overta*en, and another fght too* place, dring #hich the mortalbolo blo# F the one #hich slashed the cranim F #as delivered, casing the deceased to allto the grond, ace do#n#ard besides many other blo#s delivered right and let (t"s"n" pp" ,2)";t shold be noted that the testimony o #itness +is 8allaran or the prosection has beencompletely discarded by the lo#er cort and #e can do no better in this appeal" Bad saidtestimony been given credit, the accsedappellant #old appear to have been the aggressorrom the beginning, and the acts constitte o the frst stage o the fght, as testifed to by saidaccsed, shold not have been accepted by the lo#er cort" 5o#, contining his testimony, theaccsed stated? ;Cando yo paraba las pOaladas el se avalanzaba hacia mi y yo daba pasosatras hasta llegar al terreno palayero (t"s"n", p" 0G)" K mientras el segia avalanzandomedandome pOaladas y yo segia dando pasos atras, y al fnal, cando el ya 'iso darme napOalada certera con erza el se cayo al selo por s inercia (t"s"n", p" 0G)" Si, seOor, yo daba

pasos atras y tratando de parar la pOalada (t"s"n", p" 0G2)";t ths sho#n that the accsed never prsed the deceased" .n the contrary, the deceasedtried to contine his assalt started dring the frst stage o the fght, and the accsed hadbeen avoiding the blo#s by stepping bac*#ard"here may be error as to the e-act distance bet#een the gardhose and the place #here thedeceased ell" hat is very clear is that it #as dring the frst stage o the fght that thedeceased received a #ond &st belo# the right chest, cased by a bllet that penetrated andremained in said part o the body" !ccording to the #itness or the prosection, that #ond #asalso atal"Since the lo#er cort by its decision has considered the testimony o the #itnesses or theprosection to be n#orthy o credit, and, as #e also believe that said #itnesses #ere reallynot present at the place and time o the occrrence, this Cort is bond by the testimony o the#itnesses or the deense as to #hat in act happened, nder and by #hich the appellant issho#n to have acted in seldeense"hereore, he shold be ac'itted"%EREO,J., dissenting?:or #itnesses testifed or the prosection" n synthesis their testimonies are as ollo#s? +is8allaran" F .n 6ay 1, 0193, at abot 1 o$cloc* a"m", #hile the t#o accsed Dioscoro !lcongaand 7odolo 8racamonte #ere in search or home gards, Silverio 8arion passed by" !lcongainvited him or brea*ast" 8t 8arion ran and !lconga ollo#ed him" hen 8arion loo*ed bac*,8racamonte hit him #ith a stic* at the let temple" he stic* #as o bahi" 8arion ell do#n"!lconga stabbed him #ith his bolo" hen he fred #ith hispalti4" !ter having been fred at #iththepalti4, 8arion rose p and ran to#ards his hose" he t#o accsed prsed him" !lcongastabbed him right and let and 8racamonte hit him #ith his bahi" hen 8arion breathed nomore, the t#o accsed #ent to the mnicipal bilding o San Dionisio" he #itness #ent home

#ithot approaching 8arion" Dring the #hole fght, the #itness remained standing in the homegard shed" !t the time there #ere no other people in the place" he #itness is an ncle o thedeceased 8arion" he shed #as abot hal a *ilometer rom the arm in #hich the #itness #as#or*ing" he place #here 8arion ell #as abot the middle bet#een the t#o places" he
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#itness did not intervene in the incident nor shoted or help" Be did not tell anybody o theincident, neither the chie o police, the fscal, nor the &stice o the peace"Jil J" =staniel, Police Sergeant o San Dionisio" F Be #ent in the company o the &stice o thepeace to the place o the incident" Be sa# the body o the deceased 8arion and e-amined his#onds" he deceased had #onds in the head, arms, hands, lo#er &a#, nec*, chest" he smallfnger o his right hand #as severed" here #ere other #onds" he cranim #as bro*en" !t theright side o the chest there #as a gnshot #ond" !ter the inspection, the body o the

deceased #as delivered to the #ido#" he accsed #ere arrested, bt resed to testiy"7perto +" +ibres, acting cler* o cort since 6ay 0, 0193" F Be received onepalti4#ith blan*cartridge, one bolo, one cane o bahiand one dagger, #hich #eapons he cold not prodcesave thepalti4" he other e%ects #ere missing de to transers cased by re'ent enemypenetration in Dingle" he bolo#as a rsty #or*ing bolo" he dagger #as inches long, madeo iron" he bolo#as 0 0/ eet long" he bahi#as a cane o average length, abot inches#ide and 3/9 o an inch thic*"6aria de 7aposo" F .n 6ay 1, 0193, the #itness #as #al*ing ollo#ing Silverio 8arion" henthe latter passed in ront o the home gard shed, 8racamonte prsed him and hit him #iththe bahi" 8arion ell do#nH !lconga approached him and stabbed him #ith his bolo, ater #hichhe shot him #ith hispalti4" hen 8arion sa# that the accsed #ere loo*ing at +is 8allaran herose p and ran to#ards a ricefeld #here he ell do#n" he accsed prsed him and stabbedhim right and let" hen 8arion died, the accsed #ent a#ay" 8racamonte shoted that he #as

ready to ace the relatives o the deceased #ho might eel aggrieved" he #itness #as abott#enty meters rom the place o the incident" he deceased #as her cosin" he #itness alsopassed in ront o the shed, bt does not *no# #hether +is 8allaran #ho #as in the shed #asable to see her" She passed at abot three meters rom +is 8allaran" 8eore 8racamontedelivered the frst blo# to 8arion, the #itness did not hear any e-change o #ords" hen 8arionell, the #itness remained standing at the canal o the road abot t#enty meters rom 8allaran".n hrsday night, 6ay E, there #as gambling going on in the hose o 6aricio Jepes" he#itness played blac* &ac* #ith Dioscoro !lconga against Silverio 8arion"he t#o accsed and three #itnesses testifed or the deense, and their testimonies aresynthesized as ollo#s?Man Collado" F he #itness is a soldier #ho too* part in the arrest o Dioscoro !lconga, #homhe delivered to 8arredo #ith a revolver, a boloand a dagger":eli- Dichosa" F n the morning o 6ay 1, 0193, the #itness #as in the home gard shed"

hen 8ioy (Silverio 8arion) #as abot to arrive at the place, the #itness as*ed him i he hadfsh" Be ans#ered no and then #ent on his #ay" he #itness #ent to the road and he heard8ioy saying? ;So yo are here, lightning Kor hor has come"; he #itness sa# 8ioy stri*ingDioscoro !lconga #ith the lever he sed or carrying fsh" !lconga #as not hit" 8ioy tried tostri*e him again, bt !lconga soght cover nder the bench o the shed" he bench #as hit"hen 8ioy prsed him and gave him a blo# #ith a bolo, the #itness heard a gnshot and hesa# 8ioy alling do#n" Ipon alling in a sitting position, 8ioy too* a dagger #ith the prpose ostabbing !lconga" Ipon seeing this, !lconga stabbed 8arion right and let, #hile 8arion #ascoming against !lconga" hen 8arion ell into the canal, the #itness shoted or help" 7odolo8racamonte and Dalmacio 6endoza came" hen the #itness came ot rom the shed and #asat a distance o ten brazas, he sa# 8allaran, and re'ested him to intervene in the fght,becase the #itness elt that 8ioy #as abot to *ill !lconga" 8allaran #ent to their shed andthe #itness #ent to his hose" !t noon, 8allaran #ent to the hose o the #itness to as* him totestiy and gave him instrctions to testiy di%erently rom #hat actally had happened" he#itness told him that it #old be better i 8allaran himsel shold testiy and 8allaranans#ered? ; cannot becase #as not present" Ko can testiy better becase yo #erepresent" #ill go do#n to loo* or another #itness";Dalmacio 6endoza" F .n the morning o 6ay 1, 0193, he #ent to the hose o 7odolo8racamonte to borro# a small sa# and one ager" hile the #itness #as conversing #ith8racamonte, a gnshot #as fred" 8racamonte annonced that he #as going to the home gardshed and stated? ;hat Coroy is a ool, becase he fred a revolver #hich has bt one bllet";he #itness ollo#ed" Ipon reaching the shed they sa# :eli- Dichosa, #ho said that8racamonte and the #itness shold hrry becase Coroy #as to be *illed by 8ioy" he #itnesssa# 8ioy alling" n ront o him #as !lconga #ho too* a dagger rom the grond" he dagger#as in 8arion$s hand beore he ell" 8racamonte as*ed !lconga? ;Coroy, #hat did yo do to

SilverioA; !lconga ans#ered? ; *illed 8ioy, becase i did not he #old have *illed me" 6yshirt #as pierced by the dagger, and i did not evade #old have been hit"; 8racamontesaid? ;Jo to to#n, to the athority, #ill accompany yo"; !ter leaving the place, !lconga,8racamonte and the #itness met +is 8allaran #ho as*ed? ;7odolo, #hat happened to the


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boysA; 7odolo ans#ered? ;Jo and help 8ioy becase am going to bring Coroy to the to#no4cer"; 8allaran #ent to the place #here 8arion #as lying, #hile !lconga and 8racamonte#ent to to#n"!dolo 8racamonte" F Bis tre name is !dolo and not 7odolo as stated in the inormation,#hich #as amended accordingly" Be belies the testimonies o +is 8allaran and 6aria de7aposo" !t abot E o$cloc* a"m" on 6ay 1, 0193, he #ent to the home gard shed, he beingthe leader" hen he ond it #ithot gards, he called !lconga to mont gard and delivered

to him thepalti4=-hibit !" he #itness retrned home to ta*e brea*ast" Dalmacio 6endozacame to borro# a small sa# and ager, becase the #itness is also a carpenter" Be heard agnshot, and he #ent to the shed, ollo#ed by Dalmacio" hen they #ere approaching theshed, :eli- Dichosa shoted? ;Come in a hrry, becase 8ioy is going to *ill Dioscoro !lconga";he #itness as*ed? ;here are theyA; Dichosa sho#ed the place" he #itness #ent to#ards theplace and he sa# t#o persons fghting" .ne ell do#n" Ipon seeing 8arion alling, the #itnessshoted to !lconga? ;hat happened to yoA; !lconga ans#ered? ;6anoy, stabbed 8ioy,becase i did not he #as to *ill me,; sho#ing his shirt" hen 8arion ell do#n the #itness sa#him #ith a dagger" Ipon meeting him coming rom the opposite direction, 8allaran addressed8racamonte? ;7odolo, #hat happenedA; ;8ioy is in the rice land" Belp him becase am goingto bring Dioscoro to the to#n and #ill retrn immediately"; 8allaran #ent to the place #here8arion ell" .n the #ay, !lconga #as ta*en by soldier Man Collado #ho later broght him to theto#n o San Dionisio" he #itness did not carry at the time o the incident any cane o bahinor

did he carry one on other occasions" he occpation o the deceased #as selling fsh and hesed to ta*e mch tba" Be #as o aggressive character and strdier than !lconga" .nce,8arion gave a fst blo# to the #itness and on another occasion stabbed him #ith a bolo,#onding him in the head" :or sch stabbing, 8arion #as held in prison or one month"Dioscoro !lconga" F .n 6ay E, hrsday, at night, he #ent to gamble in the hose o6aricio Jepes" 6ah&ong, po*er, monte and blac* &ac* #ere being played in the hose" 6ariade 7aposo invited !lconga to be her partner in blac* &ac* against 8arion #ho #as then theban*er" =ach pt a share o P" hen !lconga placed himsel behind 8arion, the latter sa#6aria #in*ing to !lconga" 8arion loo*ed bac* at !lconga saying? ;Coroy it seems that yo arecheating" Son o a #hore"; !lconga ans#ered? ;8ioy yo are also son o a #hore"; 8arion stoodp to give a fst blo# to !lconga #ho pinned him to his sit and attempted to give him a fstblo#" he o#ner o the hose separated them" 8arion strc* 6aria de 7aposo, becase he #aslosing in the game, thre# a#ay the cards, too* the money rom the table, and rose to leave the

place" hile he #as #al*ing he addressed !lconga? ;Coroy yo are son o a #hore" omorro# #ill give yo a brea*ast" Ko ailed to ta*e lesson by the act that boloed the head o yorbrother,; reerring to 8racamonte" hen !lconga sa# 6aria leaving the place, he prsed heras*ing or his share o the #innings" 6aria ans#ered? ;hat #innings are yo as*ing orA;!lconga said? ;Ko are li*e yor cosin" 8oth o yo are cheaters"; 6aria #ent a#ay insltingthe accsed" .n he morning o the 1th, !lconga #ent to one o his hoses carrying an old#or*ing boloto do some repairing" Be let his long combat boloin one o his hose" .n the #ayhe met 8racamonte #ho instrcted him to mont gard in the home gard shed, becase noone #as there" 8racamonte gave him apalti4" !ter staying abot t#o hors in the shed, 8ioycame and pon seeing him, thre# a#ay his bas*ets and #ith his carrying lever gave a blo# to!lconga, saying ;his is yor brea*ast"; !lconga #as not hit becase he dodged the blo#, byallo#ing himsel to all do#n" Be soght cover nder a bench #ith the prpose o going a#ay"8arion gave him another blo#, bt his lever hit the bench instead" hen !lconga #as able tocome ot rom the bench, 8arion #ent to the other side o the shed #ith the intention ostri*ing him" !lconga too* thepalti4and fred" 8arion ell do#n losing hold o the lever" 8othstood p at the same timeH 8arion too* his dagger and stabbed !lconga #ith it saying? ;Ko areson o #hore" Coroy, #ill *ill yo"; !lconga too* his boloto stop the dagger thrst" 8arioncontined attac*ing !lconga #ith dagger thrsts, #hile !lconga *ept stepping bac* in thedirection o the rice lands" n one o his dagger thrsts, 8arion ell do#n by his o#n #eight"!lconga too* the dagger rom his hand, and at the same time !lconga heard his brother8racamonte as*ing? ;Coroy, Coroy, #hat is thatA; !lconga ans#ered? ;6anoy, *illed 8ioy,becase i did not he #old have *illed me"; 8racamonte too* thepalti4, the boloand thedagger and pshing !lconga said? ;Jo to to#n"; !lconga added? ;+oo*, 8ioy gave me daggerthrsts, i did not escape he #old have *illed me,; sho#ing his torn shirt" 8racamonte said?;Jo to to#n, #ill bring yo to the to#n o4cer"; .n the #ay, they met +is 8allaran #ho as*ed?

;7odolo, #hat happened to the boysA; 8racamonte ans#ered? ;Incle +is, go to help Silverioat the rice land becase am going to bring my brother to to#n and #ill retrn soon";:or all the oregoing #e are convinced?


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0" hat the testimonies o +is 8allaran and 6aria de 7aposo are n#orthy o credit" 8oth havebeen contradicted by the #itnesses or the deense, and the act that the lo#er cort ac'itted!dolo 8racamonte, sho#s that it believed the theory o the deense to the e%ect that it is nottre, as testifed to by +is 8allaran and 6aria de 7aposo, that 8racamonte too* active part inthe fght and it #as he #ho gave the frst blo# to the deceased #ith his bahicane, casing himto all" 8allaran$s declaration to the e%ect that aside rom the t#o accsed, the deceased andhimsel, no other people #ere in the place, is directly contradicted by 6aria de 7aposo #ho

said that she even passed in ront o 8allaran, #ithin a e# meters rom him" here being no#ay o reconciling the contradicting testimonies o 8allaran and 6aria and o determining #ho,among the t#o, declared the trth, #e cannot bt re&ect both testimonies as nreliable" :eli-Dichosa testifed that 8allaran #ent to his hose to re'est him to testiy #ith instrctions togive acts di%erent rom those #hich actally happened" Ipon Dichosa$s sggestion that8allaran himsel testiy, 8allaran had to coness that he did not see #hat happened and he #asgoing to loo* or another #itness" he prosection did not dare to recall 8allaran to belieDichosa"" hat !dolo 8racamonte did not ta*e part in the fght #hich reslted in 8arion$s death" hen8racamonte arrived at the place o the strggle, he ond 8arion already a cadaver"3" !ter re&ecting the incredible version o +is 8allaran and 6aria de 7aposo, the only versionavailable o #hat happened is the one given in the testimony o !lconga, #ellspported andcorroborated by all the other #itnesses or the deense"

9" hat according to the testimony o !lconga, there shold not be any 'estion on theollo#ing?(a) hat 8arion had a grdge against !lconga in vie# o the gambling incident on the night o6ay E, in #hich he promised to give !lconga a brea*ast, #hich pon #hat sbse'entlyhappened, #as in act a menace to *ill him"(b) hat #hile !lconga #as alone in the home gard shed, 8arion, pon seeing him, sddenlyattac*ed him #ith blo#s #ith his carrying lever"(c) hat !lconga, to deend himsel, at frst fred the only bllet available in thepalti4given tohim by 8racamonte"(d) hat althogh 8arion had allen and lost hold o his carrying lever, he #as able to stand pimmediately and #ith a dagger contined attac*ing !lconga"(e) hat !lconga too* his old rsty boloto deend himsel, against the dagger thrsts o 8arion,#hile at the same time stepping bac*#ards ntil both reached the rice land, #here 8arion ell

dead"() hat the #onds received by 8arion, #ho #as strdier and o aggressive character, #erein>icted on him by !lconga #hile deending himsel against the illegal aggression o 8arion"(g) hat in vie# o the nmber o #onds received by 8arion, it is most probable that !lcongacontined giving blo#s #ith his boloeven ater 8arion #as already nable to fght bac*"(h) he theory o dividing the fght #hich too* place in t#o stages, in the frst one, 8arion beingthe aggressor, and in the second one, as the victim, fnds no spport in the evidence" t seemsclear to s that the fght, rom the beginning to end, #as a continos and ninterrptedoccrrence" here is no evidence pon #hich to base the proposition that there #ere t#ostages or periods in the incident, in sch a #ay that #e might be allo#ed to conclde that inact there #ere t#o fghts"he act that 8arion died #ith many #onds might be ta*en against appellant and may #ea*enthe theory that he acted only in legitimate seldeense" o &dge, ho#ever, the condct oappellant dring the #hole incident, it is necessary to consider the psychology o a personengaged in a lie or death strggle, acting nder the irresistible implses o selpreservationand blinded by anger and indignation or the illegal aggression o #hich he #as the victim" !person placed in sch a crcial sitation mst have to smmon all his physiological resorcesand physical orces to rally to the one and indivisible aim o srvival and, to that end, placedhis energies on the level o highest pitch" n that moment o physical and spiritalhypertension, to as* that a man shold measre his acts as an architect #old ma*emeasrements to achieve proportion and symmetry in a proposed bilding or a scientist #oldma*e a calibration, so that his acts o seldeense shold stop precisely at the ndeterminableborder line #hen the aggressor ceases to be dangeros, is to as* the impossible" !ppellant$scondct mst be &dged not by the standards #hich may be e-acted rom the spermen o thetre, i progressive evoltion may happen to develop them" !ppellant$s condct can only be

tested by the average standards o hman natre as #e ond it, #hich has many limitationsand deects" in trying to eliminate an actal danger menacing his o#n e-istence, appellant#as not able to moderate his e%orts to destroy that menace, to the e-tent o actally *illing hisaggressor, he is certainly not accontable" Be is not an angel" e mst &dge him as man, #ith


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its average baggage o alts and imperections" !ter all, the aggressor oght to *no# that heacted at his ris*, and that by trying to *ill a hman being he defed ate, he gambled his o#nlie" :ate is al#ays stronger than all its challengers" Be #ho gambles #ith lie, li*e all gamblers,in the end becomes the loser"Peace cannot remain ndistrbed and &stice cannot remain nchallenged nless all aggressionis stopped, individal or collective" ! great nmber o hman miseries are the natral rits oaggression" .ne o the means o crbing it is to give a conclsive notice to all aggressors, that

not only are they to pay very dearly or their acts, bt that the victims o their aggression areentitled, in seldeense, to avail themselves o even the most devastating #eapons" hose #hoallo# themselves to rn amc* in an aggression spree cannot complain becase the means odeense o the victims happen to be destrctive" here may be some narro#minded persons#ho #old hold illegal the se by the !mericans o the atomic bomb to compel Mapan tosrrender" hey mst be ollo#ers o the philosophy o the sheep" e preer to ollo# theprinciple o dynamic seldeense or the innocent" hose #ho are bent on destroying hmanbeings, mst, beore they are able to achieve their diabolical ob&ective, be frst destroyed"hose #ho #ere *illed at Biroshima and 5agasa*i may appeal to or pity, bt the millions#hose lives #ere spared by the prompt and spectaclar ending o the #ar #ith the help o theatomic energy, are entitled to &stice, a &stice #hich #old have been denied them i the!mericans, s#ayed by nreasonable eminine compnctions, shold have abstained rom singthe #eapon pon #hich #ere pinned the hopes and salvation o those millions o innocent

hman beings" hile those #ho cannot o%end and the deenseless may merit all or sympathyand *indness, those #ho constittes an actal menace to hman lie are liable to berelentlessly crshed, ntil the last residm o menace has been #iped ot"e vote to ac'it appellant"

the costs"

S. .7D=7=D"Q

he sses

n his brie, the appellant charges that the trial cort erredQ

R n considering the entry in the (barangay) peace and order chairmans blotter nder entryno" GG1E, page 2 (logboo*) as a basis in holding the commission o the o%ense #ith evidentpremeditation"

" n not a%ording the accsedappellant the mitigating circmstances o volntary srrenderand his physical condition"

" n not considering appellants claim o seldeense"


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premeditation is not presmed rom the mere lapse o time"iT1U t mst be RevidentQ rom hisovert act"

Considering the evidence on record, and the events leading p to the *illing, #e cannot agree#ith appellants contention that the lo#er cort based its fnding o evident premeditation onthe victims report to the barangay captain that the accsedappellant had threatened to *illhim" e hold that the record contains s4cient basis or the fnding o evident premeditation"

he frst and third elements #ere proven by the testimony o the barangay captain, !lonso7eyes, as to the report made by the deceased abot the threat on his lie, ta*en together #iththe record o the report in the barangay logboo*, iiT0GU all o #hich established the time #henappellant decided to commit the crime" he period o time bet#een the said report and the*illing (Manary 0G, 0110) constitted a s4cient lapse o time bet#een the determination tocommit the crime and the e-ection o the same, to enable the accsed to coolly consider andre>ect pon his resoltion to do a#ay #ith the victim" :inally, the second element #as provenby the eye#itness testimony o 7enato 6olina, riend o the victim since childhood, #ho #aspresent rom the inception to the clmination o the assalt lanched by the appellant againstthe victim" e 'ote #ith approval the trial corts ratiocination, to #it?

Rhat at arond 1?GG ocloc* in the evening o Manary 0G, 0110, he (7enato 6olina) and DanteDeopante #ere conversing at !l*alde Mose St", Pasig, 6etro 6anila #hen the accsed 7ogelio

Deopante arrived" Be told Dante Deopante to rn a#ay" 8oth o them ran bt in di%erentdirections"

hat he told Dante Deopante to rn a#ay becase the latter and the accsed had a pervios(sic) misnderstanding and the accsed al#ays threatened Dante Deopante ater the lattertestifed against the accsed or shooting a certain 6aning !ngeles"

hat he also told Dante Deopante to rn a#ay becase he sa# the accsed carrying a an *niein his bac* poc*et" Be sa# it becase the place #as lighted as there #as a lamp post"

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his #itness (6olina) testifed that #hen he sa# the accsed more than si- eet a#ay and #asapproaching them, he immediately #arned his childhood riend and victim Dante Deopante torn a#ay #hich the latter did" !t the time, the accsed #as seen by this #itness abot to dra#a *nie rom his bac* pants poc*etH and that he, too, ran a#ay bt too* the opposite direction"Baving traversed a short distance, he stopped and loo*ed bac* and sa# the accsed chasinghis victim and nephe# ntil the ormer caght p #ith the latter, too* hold o him and theyboth ell to the grond"

he accsed cold have desisted rom carrying his plan to *ill into e%ect had he stopped #henhis nephe# too* o% and ran a#ay rom him" he latter did so becase he *ne# in his heart

that his ncle #as abot to *ill him and this #as also elt by eye#itness 6olina becase o theimmediate #arning given by him to his riend"

8t then, althogh he sa# his nephe# sprinting a#ay, he nevertheless did chase him or adistance and all the #hile he cold have stopped and go home to his residence sitated only ae# maters a#ay"

!gain he cold have let go the victim #hen he caght p and too* hold o him" Be did not, bton the contrary, #hen they both ell and rolled on the grond, he grappled #ith his victim andat the very frst opportne moment, mercilessly stabbed his nephe#, not only once bt t#ice,in>icting, very serios blo#s, one o #hich #as most atal and cold have cased instantaneosdeath on his prey"

So it is that rom this very actation o the accsed at the time, it is obviosly clear that heclng to this determination to *ill Dante Deopante #hen he cold have stopped at anytimebet#een the moment that his nephe# ran a#ay ntil the time that he dealt the atal blo#s that


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ltimately cased the death o Dante Deopante"QiiiT00U (nderscoring ors)he three elementshaving been dly proven, the presence o evident premeditation in the case at bar is thereoreconclsive"

Second sse? .oluntary Surrender and Physical Defect as #itigating Circumstances8

Contrary to appellants protestations, the trial cort #as correct in fnding no volntary

srrender in this case" n order to appreciate volntary srrender by an accsed, the samemst be sho#n to have been Rspontaneos and made in sch a manner that it sho#s the intento the a

Criminal Law Set 4

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Transcript of Criminal Law Set 4