II. Persons Responsible and Conduct Punished

7/28/2019 II. Persons Responsible and Conduct Punished

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Pp vs temblor

Nature: Appeal from the judgment of the CFI of Agusan del Norte and Butuan City.

Facts: On 30 December 1980, 7:30 PM, Vicente Temblor alias Ronald (accused-appellant)

went to Julius Cagampangs house in Agusan del Norte, to buy cigarettes. Cagampang, while

opening a pack of cigarettes, was shot! The accused (and another person, Anecito Ellevera)

demanded Victorina Cagampang (Julius wife) that she brings out her husbands firearms. The

accused fired two more shots at the fallen victim. Victorina gave a suitcase to Temblor, who then

took the .38 caliber which was inside, and fled.

In August 1981, Temblor, an NPA, surrendered (it was actually a mass surrender of NPAs) after

hiding in the mountains. In 26 November 1981, he was arrested by Buenavista police at the

public market and then detained at municipal jail. Regarding the murder of Cagampang,

Temblors alibi was that day until the next, he was with his father for drinking and pulutan. On 8

June 1982, the accused was convicted and sentenced to suffer reclusion perpertua, and to

indemnify the heirs of the victim P12,000. He appealed.

*** In this appeal, the appellant alleges that the court a quo erred: (1) in finding that he was

positively identified by the prosecution witness as the killer, and (2) in rejecting his defense of

alibi.

Issue: WON the accused is guilty of murder.

Held: Yes, the accused is guilty of murder. Judgment appealed from is

AFFIRMED in all respects and civil indemnity increased to P30K. It was proven that he had

motive in killing Cagampang: he had knowledge that Cagampang possessed a firearm; this was

motive enough to kill him, as part of NPAs agaw armas campaign or killings perpetrated by

NPA for the purpose of acquiring more firearms. Moreover, proof of motive is not essential

when the culprit has been positively identified. Also, his flight implies guilt.

The prosecution witness, Victorina Cagampang, may have minor inconsistencies in her

testimony but this does not diminish her credibilitythat is part of being human?. What is

important is that she had positively identified the accused as the assailant and that her testimony

is corroborated by other witnesses.

Furthermore, the accuseds alibi was unacceptable because it was self-serving and

uncorroborated. It cannot overrule positive identification, it was merely 15-20 minutes away

from crime scene and Perol was at work.


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pp. vs Hassam

Facts: Usman Hassan, 15 yrs. Old of Samal Tribe in Zambo City was convicted of murder of

Pichel. Pichel was stabbed to death at fruit paradise while sitting at his red honda motorcycle,

waiting for friend Jose Samson who was buying fruits.

Issue: WON conviction is valid

Held: No. Conviction reversed. Acquitted. The Medico Legal found two stab wounds from front

but the Samson claimed that Pichel was stabbed once from behind. Procedure followed was also

improper. The accused was presented to the witness alone and in confrontation, not police line

up. He was also denied right to counsel, particularly when identification took placethis

qualifies for uncounselled confession. The witness was also questioned 2 days after incident and

sworn 4 days after. The fruit vendor as well as the companion of the accused was not

investigated. In fact, they did not pursue other suspect. Also, the knife was not tested. Further

notable are the facts that the age of the accused was observed without medical basis, that the

accused did not run away and that he had no motive, which, in People vs. Verzo was considered

important when there is doubt in the identity of culprit and reiterated in People vs. Pervelo which

stated that identification is tenuous.

PEOPLE v. DELIM [January 29, 2003]

Facts: Marlon, Leon & Ronald Delim were convicted for murder of Modesto Delim, resident of

Bila, Sison, Pangasinan. Modesto is the adopted child of Marlons Dad. Marlon, Manuel &

Robert are brothers & Leon & Ronald are their nephews. Around 6:30 pm, January 23, 1999,

Modesto and family were preparing to eat dinner when Marlon, Robert and Ronald arrived.

Marlon poked gun, other two grabbed, hog tied and gagged Modesto. They herded him out of the

hose and went to the direction of Paldit. Leon and Manual guarded Rita & Randy until 7 am and

told them to stay put. They searched for him for 3 days and reported to police three days after the

incident. Randy with relatives found Modesto in the housing project in Paldit under bushes. He

was dead due to gun shot wound on head.

Issues:

1. WON case is murder or kidnapping?

Murder: when primary purpose is to kill, deprivation is incidental and doesnt constitute

kidnapping (US v. Ancheta). Specific intent: active desire to do certain criminal acts or particular


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purpose (example, murder and kidnappingkill and deprive victim of liberty) motive: reason

which prompts accused to engage in particular criminal activity (ex. Kidnap for ransom-rasnom)

essential for kidnapping. Information: described murder and kidnapping not specified.

2. WON prosecution had sufficient evidence?

Yes. Prosecution proved intent to kill with their knives and handguns, 5 gun shot wounds and 4

stab wounds (defensive). Furthermore, the pieces of circumstancial evidence were convincing:

Rita and Randy testified events. Rita claimed she heard 3 gunshots and accordingly,

decomposing body was found with gunshot wounds and stabs.

3. WON there was conspiracy?

Yes. Conspiracy is when two or more persons agree and decide to commit a felony. This is

proven by acts of criminal. Before during and after crime committed and that accused had same

purpose and united in execution; act of one act of all. Wharton criminal lawactual presence not

necessary if theres direct connection bet actor and crime

4. WON witness testimonies were valid?

Yes. Inconsistencies mean and even strengthen. It was not rehearsed

5. WON alibi warranted?

No. Positive identification over alibi. Unable to prove that they were in another place and

impossible to go to crime scene

6. WON there was treachery and other aggravting circumstances?

No. Treachery and taking advantage of superior strength was not proven as there was no witnessor evidence. The unlicensed firearm and dwelling was further not included in information.

Held: Conviction affirmed with modification

Erap Sandigan Bayan

THIRD DIVISION

[G.R. No. 145803. June 30, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. BENJIE PABIONA, ROSELO

BASALATAN, ANTONIO SILARCA, ROBERTO METANO, and

CHRISTOPHER DELOS REYES (at large), accused,

BENJIE PABIONA, ROSELO BASALATAN, ROBERTO METANO and ANTONIO

SILARCA, appellants.


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D E C I S I O N

CARPIO MORALES, J.:

On appeal is the May 30, 2000 Decision[1]

of the Regional Trial Court of Iloilo City, Branch

23 convicting appellants Benjie Pabiona, Roselo Basalatan, Roberto Metano and Antonio Silarca

of the crime of murder, sentencing them to suffer the penalty ofreclusion perpetua, and orderingthem to pay the heirs of the victim, Robert Pagayon, the amounts ofP232,100.00 as actual

damages and P50,000.00 as civil indemnity.

The Information[2]

dated May 31, 1997 charging the appellants and accused Christopher de

los Reyes with murder reads as follows:

That on or about the 20th

day of November, 1996, in the Municipality of Passi, Province of Iloilo,

Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,

conspiring, confederating and mutually helping each other, with treachery and deliberate intent

to kill, did then and there willfully, unlawfully and feloniously, attack and assault ROBERT

PAGAYON with fist and kick blows and bamboo poles, as a result of which the said RobertPagayon suffered multiple physical injuries on his body which caused his death thereafter.

CONTRARY TO LAW.

Upon arraignment[3]

on June 30, 1997, appellants pleaded not guilty to the offense

charged. Trial thereafter ensued. Their co-accused, Christopher de los Reyes, has remained at

large.

The prosecution presented the following witnesses whose testimonies follow after theirrespective names:

Michael Pagayon (Michael), a cousin of the victim, testified that on November 20, 1996, atabout 9 p.m. at Barangay Agtambo, Passi, Iloilo, while he was on his way to the house of his

aunt, Rosalina Padernal, he heard a cry for help emanating from a nearby river.[4]

When he wasabout ten (10) meters from the river, he saw appellants, including accused Christopher de los

Reyes, wielding bamboo poles. All of the accused were striking and kicking an unidentified man

who was crawling. He then heard appellant Pabiona say, What did you tell, ha?[5]

Michaelthen proceeded to his aunts house and spent the night there.

The following morning, at about 6 a.m., Michael left his aunts house. On his way to work

at Villa, Iloilo, he passed by the place where he saw appellants beating up the unidentified

man. He saw two men at the area but he kept on walking and was not able to identify them.[6]

Two weeks later, he heard a radio news report that his cousin Robert died at BarangayAgtambo after falling into a well on the date he witnessed appellants mauling an unknown

victim.[7]

He then narrated what he saw on the night of November 20, 1996 to his wife. Two

months after hearing the radio report, he recounted what he witnessed to the mother of thevictim, Marina Pagayon.

[8]

Marina Pagayon (Marina) who, like the rest of the accused, was a member of appellant

Pabionas religious group, Catholic Movement of Jesus and Mary (CMJM), testified that at about7 p.m. on November 20, 1996, appellant Pabiona and his brother Popoy went to her house at
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Gines Viejo, Passi, Iloilo and asked her to spend the night at his house in Dorillo Street, Passi,

Iloilo and that Robert go along with them and resume work at his well. She acquiesced. Later

that evening, appellant Basalatan, his wife Teresita and two others arrived at the Pagayon houseand they all boarded appellant Basalatans jeepney and headed for appellant Pabionas house at

Dorillo where she and Popoy Pabiona alighted. Appellant Basalatan and the rest of the

passengers then proceeded to the well at Barangay Agtambo.The morning after, Marina went back to her house to attend to her grandson. At about 11

a.m., Popoy Pabiona and Annie Ardales arrived at her house and told her to go to Barangay

Agtambo.[9]

Upon arriving thereat, she saw appellants Pabiona, Metano, Silarca, appellant

Pabionas mother Avelina, and a certain Cheryl Pampag at Pabionas nipa hut. She then saw thelifeless body of her son-the victim on the floor of the hut. She cried and asked appellant Pabiona

what had happened. Appellant Pabiona told her that her son died after falling into the well at

about 9 a.m. She then asked why they did not bring him to a hospital to which appellant Pabiona

replied that the victim was already dead when they found him. Marina then noticed that hersons body was clean and he was wearing a pair of shorts which did not belong to him,

prompting her to ask appellant Pabiona, If he fell why is it there is no mud on the body and he is

already clean. Appellant Pabiona replied that they already bathed Robert before she arrived.[10]

A jeepney from Funeraria Pamplona later arrived to take the victims body. While on thejeepney, appellant Pabiona instructed Marina to keep quiet and not cry loudly as other people

might hear her. He likewise instructed her to cover the victim with a blanket and made to sit

beside the driver so that other people would not know that he was dead. Because the victimsbody had already hardened, however, he was laid down on the jeepney. His body was then taken

to Funeraria Pamplona.

As Marina had misgivings about the cause of her sons death, she went to appellant

Pabionas house to talk to him and ask him again about what really transpired before the victimdied. Appellant Pabiona told her to accept that what happened was an accident and suggested

that there be no autopsy conducted on the victims body as it might cause trouble. Avelina,appellant Pabionas mother, then told her that she should not be saddened as they would shoulderall the funeral expenses.

[11]As she still could not think clearly, she agreed to everything that

appellant Pabiona and his mother had told her.

Emma Pagayon (Emma), the victims sister-in-law, testified that at about 6:30

a.m. on November 22, 1996, she was informed by Tessie Basalatan (Tessie), the wife ofappellant Basalatan, and Gina Panerio (Gina), a member of CMJM, that the victim died after

falling from the roof of appellant Pabionas nipa hut in Barangay Agtambo.[12]

Emma thus woke

up her husband Renato Pagayon and they interrogated Tessie and Gina about the circumstances

surrounding the victims alleged fall from the roof. They were told that Robert fell face down onthe ground and hit a hard object,

[13]and that he was no longer brought to a hospital as he died

immediately. Upon further questioning by the Pagayons, Tessie and Gina told them that nobody

reported the incident to the police as all of them were demoralized by the victims death.[14]

Emma thereupon repaired to Funeraria Pamplona and had photographs of her brother-in-law

taken as she planned to request for an autopsy of his body. When she broached the idea of

subjecting the victims body to an autopsy to Marina, the latter initially refused because ofappellant Pabionas instructions. She later agreed upon Emmas prodding.
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Emma then went to Dr. Leonardo Deza, the municipal health officer of Passi, Iloilo, and

requested for an autopsy of the victims body. Dr. Deza was astonished and told Emma that he

had already released the victims death certificate[15]

upon processing by an unidentifiedwoman.

[16]He then immediately caused the cancellation

[17]of the death certificate at the Office

of the Civil Registrar. Upon examination of the cancelled death certificate, Emma noticed that

her mother-in-laws signature therein was forged.

[18]

On November 25, 1996, Emma went to Dr. Owen Jaen Lebaquin, medico-legal officer of

the Philippine National Police Crime Laboratory Service in Camp Delgado, Iloilo City, and

requested for an autopsy of the victims body.

Gathered from the postmortem examination conducted on the body of the victimon December 2, 1996 by Dr. Lebaquin are the following:

FINDINGS:

Fairly nourished, fairly developed previously embalmed male cadaver. Embalming incision sites

are noted at the right lateral of the neck and at the umbilical area.

HEAD, TRUNK AND EXTREMITIES:

1) Hematoma, left periorbital area, measuring 4 x 4 cm, 5 cm from its anterior midline.

2) Abrasion, left mandibular area, measuring 2 x 0.5 cm, 9 cm from its anterior midline.

3) Area of multiple abrasion, right infraclavicular area, measuring 11 x 6 cm, 5 cm from itsanterior midline.

4) Area of multiple abrasion, sternal notch area extending to the left supraclavicular area,measuring 8 x 6 cm, 5 cm from its anterior midline.

5) Area of multiple abrasion, left parasternal area extending to the left clavicular area,measuring 24 x 6 cm, 13 cm from its anterior midline.

6) Area of multiple abrasion, right costal margin extending to the epigastric area,

measuring 29 x 11 cm, 9 cm from its anterior midline.

7) Abrasion, left iliac area, measuring 6 x 5 cm, 11 cm from its anterior midline.

8) Abrasion, distal 3

rd

of the right thigh, measuring 9 x 3 cm, 7 cm medial to its anteriormidline.

9) Abrasion, umbilical area, measuring 7 x 5 cm, 3 cm from its anterior midline.

10) Area of Multiple Abrasion, nape area along the paravertebral area extending to the

lumbar area, measuring 30 x 13 cm bisected by its posterior midline.
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A linear fracture is noted at the left sphenoid.

A blood clot measuring 2 x 1 cm at the parietal lobe of the brain left side is noted.

Scalp hematoma is noted at the occipital area of the head.

Hemorrhagic areas are likewise noted at the underlying tissue of the left clavicular area.

Stomach is full of partially digested food consisting mostly of rice.

CONCLUSION:

Cause of death is Cardiorespiratory arrest due to shock and hemorrhage as a result of multipletraumatic injuries to the body.

[19]

Upon the other hand, the defense presented appellants and Rosalina Padernal whose

testimonies follow after their respective names:Appellant Pabiona testified that at about 7 p.m. on November 20, 1996, he was told by his

mother that Marina went to their house earlier to inform him that her son-the victim wouldresume work at his well.

[20]He thereupon asked his brother to accompany him in fetching the

victim. On arrival at the Pagayon house at about 7:30 p.m., Marina told them to wait while she

prepared Roberts belongings. In the meantime, appellant Basalatan, together with his wife

Teresita, arrived. The six of them, on board appellant Basalatans jeepney, then left for appellantPabionas house where Marina and appellant Pabionas brother alighted as they were to spend

the night there. The rest of them proceeded to appellant Pabionas farm in Barangay Agtambo atabout 9 p.m. as they planned to continue digging at the well the following day.

[21]

Appellant Pabiona and company arrived at the farm at about 9:30 p.m. and proceeded to anipa hut, ten (10) meters away from the well, where they met appellants Metano, Silarca and

accused de los Reyes.[22]

They took supper after which appellant Basalatan and his wife Teresita

left for home. The five remaining men then slept at the nipa hut.

Appellant Pabiona woke up the next day at about 5:45 a.m. and joined his companions whowere drinking coffee. At around 7 a.m., he told them to stay at the nipa hut while he walked

around the farm. His companions then told him that they would start digging shortly after he

leaves.

At around 11:00 a.m., when appellant Pabiona was about 500 meters from the nipa hut, he

was startled to find appellant Silarca running towards him, shouting that the victim fell down the

well.

[23]

Both of them thus repaired to the well and found appellant Metano crying while accusedde los Reyes was inside the well cradling the victim. Appellant Pabiona then instructedappellants Metano and Silarca to help the victim. After much difficulty, the victim being heavy,

they were finally able to lift him from the 15 meter deep well by spreading his legs, placing him

astride appellant Silarcas shoulders, tying a blanket which was connected to a rope around hisarmpits, pulling the rope (by appellant Pabiona) as appellant Metano and accused de los Reyes

helped appellant Silarca climb the bamboo ladder inside the well.
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After lifting the victim from the well, appellant Silarca performed mouth to mouth

resuscitation in order to revive Robert, but to no avail.[24]

They thereupon brought him to the nipa

hut. Appellant Pabiona instructed accused de los Reyes to look for a vehicle so they could bringRobert to a doctor. He likewise ordered him to inform Marina that her son was involved in an

accident.[25]

At about 12 noon, Marina, together with Annie Ardales, arrived at the nipa hut. AppellantPabiona left for home at about 2:30 p.m.

[26]while appellants Metano and Silarca remained in the

hut with Marina and Annie.

Appellant Silarca testified that at about 9:30 p.m. on November 20, 1996, he, together with

appellant Metano and accused de los Reyes, was at appellant Pabionas nipa hut at BarangayAgtambo to work on the nearby well when appellants Pabiona and Basalatan, Teresita Basalatan

and the victim arrived.[27]

He then substantially corroborated appellant Pabionas testimony

regarding the events that transpired that night.

The following morning, with appellant Metano, accused de los Reyes and the victim,

appellant Silarca prepared to work on the well. An iron bar, two bamboo poles and a shovel

were inside the well.[28]While the victim was going down the bamboo ladder, he slipped on oneof the rungs and let out a cry.

[29]Appellants Silarca and accused de los Reyes were about seven

meters away while appellant Metano was about a meter away when the victim slipped. Accusedde los Reyes and appellant Metano went down the well to help the victim who fell on the objects

earlier placed therein while he ran to find appellant Pabiona. He then corroborated appellant

Pabionas version of the events that transpired thereafter, adding only that they washed thevictims body after lifting him from the well in order to check his injuries, his body being

covered by mud from the well.[30]

Appellant Basalatan corroborated his co-appellants version of what happened on the night

of November 20, 1996 and added that he and his wife Teresita left the nipa hut at Barangay

Agtambo at about 11:30 p.m. and proceeded to their home.

[31]

The following day, at about 6:30a.m., he traveled to Iloilo City for some business and went home to Passi,Iloilo at about 4

p.m. He was then informed by his wife that the victim died after falling from the well atappellant Pabionas farm.

[32]

Appellant Metano corroborated his co-appellants testimonies.

Rosalina Padernal, the aunt of Michael Pagayon, testified that, contrary to her nephews

testimony, Michael did not spend the night at her house on November 20, 1996.[33]

She likewisetestified that sometime in April 1997, Michael, together with a companion, went to her house and

told her that if anyone asks whether he spent the night at her place onNovember 20, 1996, she

should answer in the affirmative.[34]

By Decision of May 30, 2000, the trial court found appellants guilty of murder. Thedispositive portion reads, quoted verbatim:

WHEREFORE, premises considered and in the light of the facts obtaining and the jurisprudenceaforecited, judgment is hereby rendered finding the accused Benjie Pabiona, Roselo Basalatan,

Antonio Silarca and Roberto Metano GUILTY beyond reasonable doubt of the crime of

MURDER hereby sentencing the aforenamed accused to a penalty ofRECLUSION
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PERPETUA and further condemning all of the said accused to indemnify the heirs of the victim

actual damages in the amount of P232,100.00 and death compensation in the sum of P50,000.00

The bail bond posted by the accused are ordered cancelled and their subsequent arrest and

confinement is ordered. The Jail Warden, Iloilo Rehabilitation Center, is ordered to remit (sic)

National Penitentiary, New Bilibid Prison, Muntinlupa City at the earliest opportunity.

Let there be issued an alias order of arrest to the accused Christopher de los Reyes who remained

(sic) at-large up to the present time.

SO ORDERED.[35]

Dissatisfied with the decision, the four appellants filed their Notice of Appeal[36]

on July 20,

2000.

In their joint brief of February 4, 2002, appellants Basalatan and Silarca assign the followingas errors of the trial court:

I

THE HONORABLE TRIAL COURT ERRED IN GIVEN (sic) CREDENCE TO THEUNCORROBORATED TESTIMONY OF THE LONE WITNESS OF THE PROSECUTION

MICHAEL PAGAYON

II

THE PROSECUTION EVIDENCE IS PURELY CIRCUMSTANTIAL AND DOES NOTSATISFY THE REQUIREMENTS FOR SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE

TO CONVICT THE ACCUSED

III

THE PROSECUTION HAS NOT OVERCOME THE BURDEN OF PROVING THE GUILT

OF THE ACCUSED BEYOND REASONABLE DOUBT[37]

In his brief of March 9, 2002, appellant Pabiona imputes the following errors:

I

THE HONORABLE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO

THE UNCORROBORATED TESTIMONY OF LONE EYE-WITNESS MICHAELPAGAYON

II

THE HONORABLE TRIAL COURT ERRED IN HOLDING THAT, IN THE ALTERNATIVE,THERE IS CIRCUMSTANTIAL EVIDENCE SUFFICIENT TO WARRANT CONVICTIONOF THE ACCUSED
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III

THE HONORABLE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY OFTHE CRIME OF MURDER BEYOND REASONABLE DOUBT

[38]

Per certification

[39]

dated April 9, 2003 issued by Assistant Director Joselito A. Fajardo ofthe Bureau of Corrections, Muntinlupa City, this Court was informed of the death of appellant

Metano on August 30, 2002.[40]

In rendering its decision, the trial court disregarded appellants version of what transpiredand relied on circumstantial evidence culled from the testimonies of the prosecution witnesses,

which it enumerated as follows:

a) the accused Benjie Pabiona and Roselo Basalatan personally brought the victim Robert

Pagayon to the crime scene in the evening of November 20, 1996 situated on the property of the

Pabiona family;

b) the presence of all the accused in the scene of the crime immediately before, during andimmediately after the incident;

c) no one reported the death of the victim to the police authorities nor to any barangay

officials;

d) the victim was not brought by the accused to the hospital immediately after the incident;

e) the driver and a laborer of Pamplona Funeral Homes were instructed not to bring anycasket when they got the cadaver of the victim from the crime scene;

f) the cadaver of the victim was washed by the accused and seen by the victims mothernaked with his clothes nowhere to be found except for a stripe (sic) short pants on not belongingto the victim;

g) the well where the victim accidentally fell as claimed by the accused is only five (5)meters deep with sandy soil and one (1) foot deep water at the bottom thereof; and

h) no other person/persons were present before, during and after the incident except the five(5) accused.

[41]

The trial court likewise relied upon the testimony of Michael Pagayon, the pertinent portions

of which read:

Q: Because you said you slept in the house of your aunt Rosalina Padernal because

you were not able to catch up (sic) a ride at 6:00 oclock, at 9:00 oclock in the

evening, where were you specifically at Brgy. Agtambo?

A: At around 9:00 oclockI went to a store to buy cigarettes but the store was already

closed.
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Q: Because the store was already closed at 9:00 oclockwhen you intended to buy

cigarettes, what happened next?

A: I walked home because there was no cigarettes.

Q: From the store where you intended to buy cigarettes from the house of your aunt

Rosalina Padernal, how far is that in terms of meters, more or less?A: About 300 meters.

x x x

Q: When you were walking from the store where you intended to buy cigarettes backto your house, to the house of your aunt Rosalina Padernal, did you notice of (sic)

any unusual incident?

A: Yes, sir.

Q: What was that about?

A: I heard a shout asking for help.Q: When you heard a shout asking for help, what did you do?

A: I went near.

Q: From where [did] that shout of help came (sic) from?

A: From the river.

Q: From where you were standing at that time towards the place in the river where

the shout came from, how far from (sic) you?

A: 10 meters.

Q: Were you able to reach the river where the shout for help came from?

A: No, sir.

Q: You said you were not able to reach the river where the shout came from, how

many meters more or less were you from the place where the shout came from?

A: 10 meters.

x x x

Q: You said you saw them mauling and kicking a person, why were you able to see

those people mauling and kicking a person?

A: Because I went there.

x x x

Q: How many people were mauling that person?

A: Five.

Q: How many persons were being mauled and kicked?


12/30


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Q: What was he doing with the bamboo?

A: Striking with the bamboo.

Q: How about Roselo Basalatan, what was he doing at that time?

A: Also holding a bamboo.

Q: What was he doing?

A: Also hitting.

Q: How about Roberto Metano, what was he doing at that time?

A: Also the same.

Q: How about Christopher delos Reyes, what was he doing at that time?

A: Also the same.

Q: Have you seen how big is the bamboo being held by Benjie Pabiona?

A: Yes, sir.

Q: Will you please show?

A: As big as my wrist which is about 2 inches in diameter.

x x x

Q: At thattime (sic), at about 9:00 oclockin the evening that you saw these people

mauling the person, do you know the person being mauled at that time?

A: No, sir.

Q: Because that night you did not know who the person being mauled (sic), what did

you do?

A: I went home.

Q: You went home to whose house?

A: Antie (sic) Saling.

Q: The following morning what time did you wake up?

A: 6:00 oclock.

Q: When you woke up where did you go?

A: I went back to Iloilo to my work.

x x x

Q: Were you present when Robert Pagayon died?

A: No, sir.

Q: So you do not personally know at what time did Robert Pagayon die?


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A: No, sir.

Q: Also you do not know on what date Robert Pagayon died because you were not

there?

A: I do not know the time, place on November 21 and November 20 when he died.

Q: Also you do not know the actual circumstances and how Robert Pagayon diedbecause you were not there?

A: I know.

Q: You were there when Robert Pagayon died?

A: No, sir.

Q: So how did you know how Robert Pagayon died because you said you do (sic)

were not there?

A: When he was mauled he is not yet dead.

Q: Did you see Robert Pagayon being mauled?

A: Yes, sir.

Q: You are very positive that you saw Robert Pagayon being mauled?

A: Yes, sir.

Q: You said that because you saw the person being mauled?

A: The one being mauled I do not know him when he was being mauled.

Q: And you are saying that you are merely making a conclusion and your opinion

that the person mauled was Robert Pagayon?

A: Yes, sir.

Q: That is your own belief?

A: Yes, sir.[42]

The fundamental issue in the instant appeal is whether or not there is sufficient

circumstantial evidence to sustain the trial courts judgment finding appellants guilty beyondreasonable doubt.

Circumstantial evidence is that evidence which proves a fact or series of facts from which

the facts in issue may be established by inference.[43]

Such evidence is founded on experience

and observed facts and coincidences establishing a connection between the known and provenfacts and the facts sought to be proved.

[44]

Section 4 of Rule 133 of the Rules on Evidence provides that circumstantial evidence is

sufficient for conviction if the following requisites are complied with: (1) there is more than onecircumstance; (2) the facts from which the inferences are derived are proven; and (3) the

combination of all the circumstances is such as to produce a conviction beyond reasonable

doubt. With respect to the third requisite, the circumstantial evidence presented must constitute

an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to
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the exclusion of others, as the guilty person.[45]

All the circumstances must be consistent with

each other, consistent with the hypothesis that the accused is guilty, and at the same time

inconsistent with the hypothesis that he is innocent and with every other rational hypothesisexcept that of guilt.

[46]

From a considered scrutiny of the evidence in the case at bar in light of the standards set

forth above, this Court holds that the evidence adduced by the prosecution does not prove theguilt beyond reasonable doubt of appellants.

The evidence does not rule out the possibility that there had only been an accidental

death. Hitting ones head on a hard object such as an iron bar or shovel after accidentally

slipping could account for the fracture, blood clot and scalp hematoma found on the back of thevictims head which, in turn, could have caused his death soon thereafter. As testified to by Dr.

Lebaquin:

Q: Of these injuries mentioned, what could have been considered as the fatal injury

which caused the death?

A: Fracture of the skull.x x x

Q: In terms of minutes, how many minutes or hours will death occur after these

injuries were sustained?

A: There was a blood clot. I think immediately, it is possible the victim could havedied minutes after.

Q: 5 minutes?

A: Possible.

Q: 10 minutes?A: Possible.

[47]

The victims injuries, contrary to the trial courts evaluation, are more consistent with

appellants version of the events that transpired on November 21, 1996. While the victim

sustained a fracture, a hematoma and a blood clot on his head, the rest of the injuries on his bodyare mere abrasions.

[48]Abrasions are injuries characterized by the removal of the superficial

epithelial layer of the skin caused by rubbing or friction against a hard rough surface.[49]

Such

abrasions found on the victims body are more likely to have been caused by h is slipping fromthe bamboo ladder and falling into the well rather than by force applied by five able-bodied men

striking him with bamboo poles and kicking him as claimed by the prosecution. As testified to

by Dr. Lebaquin:Q: Next item, Injury No. 2. Abrasion, left mandibular area, measuring 2 x 0.5 cm. 9

cm. from its anterior midline. Please point to the Court where is this situated?

A: Left jaw.

Q: In the laymans language, please kindly explain to the Court this injury?

A: In ourdialect this is called gasgas, caused by rubbing in a rough surface.
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Q: Please explain what could have caused this?

A: Rubbing of the skin at hard object.[50]

The mere presence of appellants at an alleged locus criminis does not suffice to implicate

them in a crime,[51]

more so as in the case at bar where appellants presence was sufficiently

explained to have been due to their digging of the well on appellant Pabionas property whichcommenced long before November 20, 1996.

While the motive of the accused in a criminal case is generally held to be immaterial, notbeing an element of the crime, motive becomes important when, as in this case, the evidence of

the commission of the crime is purely circumstantial or inconclusive and there is some doubt on

whether a crime has been committed or whether the accused has committed it.[52]

In the case at bar, the prosecution was unable to establish motive of the appellants inallegedly perpetrating the offense charged. In fact, prosecution eyewitness Michael Pagayon

testified:

Q: Before November 20, 1996, do you know if there was any misunderstanding or

quarrel between Robert Pagayon on the one hand and any or all of the accused herein Court?

A: No, sir, he has no enemy.[53]

The records reveal, on the other hand, that the Pagayons enjoyed close relations with

appellants, Marina being, as reflected above, a co-member of the appellants in CMJM. It waseven shown that she was accustomed to sleeping over at the Pabiona residence at every

opportunity.[54]

This Court likewise notes prosecution eyewitness Michael Pagayons inordinate delay in

reporting what he allegedly saw on the night of November 20, 1996. Even after hearing the

radio news report on his cousin-the victims death on December 1, 1996 and deducing that hewas the victim of the mauling that he claimed to have witnessed, he only reported such incident

to his aunt Marina and the authorities two months later. It is but logical for a relative who wasan eyewitness to a crime to promptly and audaciously take the necessary steps to bring the culprit

into the hands of the law and seek justice for the poor victim.[55]

It may be relevant to note too that while in his direct examination, Michael categoricallydeclared that he saw only five persons mauling an unidentified man,

[56]in his cross examination,

he testified that there were actually seven men:

Q: In this affidavit of yours you stated that aside from the five accused here, there

were 2 other persons because you said there were seven (7) persons mauling

another, do you remember that?x x x

A: I saw the two but I do not know them.

Q: But during the direct examination you said there were five (5) persons whomauled (sic)?

A: Yes, sir.[57]
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That appellants were the malefactors cannot be simply inferred from the mere fact that

appellant Pabiona and his family offered to shoulder the expenses for the burial of Robert. As the

victim was in appellant Pabionas employ and died while working at his well, it was notunnatural for him to make an offer to bear the expenses that Marina would incur attendant to the

burial of her son.

Nor can appellants failure to report the victims death to police authorities and barangayofficials be considered as an indication of their guilt, as the records show that they, through theirrelatives,

[58]immediately informed the victims mother and brother that he died.

The other circumstances enumerated by the trial court are too equivocal to establish

appellants guilt beyond reasonable doubt.

InPeople v. Capili,[59]

this Court similarly ruled that the circumstantial evidence adduced bythe prosecution was utterly inadequate to justify a judgment of conviction:

In fact, there is even some possibility that Baduas identification of accused-appellant as theperpetrator was a mere afterthought, there being no definite lead as to the identity of the author

of the crime even after the lapse of several days following the finding of the cadaver of thevictim by the riverside on October 7, 1994. The foregoing considerations taken together castreasonable doubt on the culpability of accused-appellant as killer of Alberto Capili. Theevidence which stands on record does not eliminate the possibility of absence of foul-play, i.e.,

that there had been only an accidental death by drowning. Striking a rock after accidentally

slipping could cause contusions similar to those found at the back of the victims head andshoulders and result in the loss of consciousness leading to drowning. Only by proof beyond

reasonable doubt, which requires moral certainty, may the presumption of innocence be

overcome. Moral certainty has been defined as a certainty that convinces and satisfies the

reason and conscience of those who are to act upon it. Absent the moral certainty that accused-appellant caused the death of the victim, acquittal perforce follows.

[60]

It is a basic principle in criminal law that where the evidence is capable of two or more

inferences, one of which is consistent with the presumption of innocence and the other

compatible with a finding of guilt, the court must acquit the accused because the evidence doesnot fulfill the test of moral certainty and therefore is insufficient to support a judgment of

conviction.[61]

Where the evidence on an issue of fact is in equipoise or there is doubt on which

side the evidence preponderates, the party having the burden of proof loses.[62]

In the case at bar, two antithetical interpretations may be inferred from the evidencepresented. The pieces of circumstantial evidence do not inexorably lead to the conclusion that

appellants are guilty of the crime charged.

The circumstances proffered by the prosecution and relied upon by the trial court only createsuspicion that appellants probably perpetrated the crime charged. However, it is not sufficientfor a conviction that the evidence establishes a strong suspicion or probability of guilt.

[63]

The basis of acquittal in this case is reasonable doubt, the evidence for the prosecution not

being sufficient to sustain and prove the guilt of appellants with moral certainty. By reasonabledoubt is not meant that which of possibility may arise but it is that doubt engendered by an

investigation of the whole proof and an inability, after such an investigation, to let the mind rest
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easy upon the certainty of guilt.[64]

An acquittal based on reasonable doubt will prosper even

though the appellants innocence may be doubted, for a criminal conviction rests on the strengthof the evidence of the prosecution and not on the weakness of the evidence of the defense.

[65]

WHEREFORE, the May 30, 2000 decision of the Regional Trial Court of Iloilo City,Branch 23 is hereby REVERSED and SET ASIDE. Appellants Benjie Pabiona, Roselo

Basalatan, and Antonio Silarca are ACQUITTED of the charge of murder on the ground ofreasonable doubt. Their immediate release from custody is hereby ordered unless they are beingheld for other lawful causes.

SO ORDERED.

Sandoval-Gutierrez, and Corona, JJ., concur.

Vitug, J., (Chairman), on official leave.

pp. Vs Carmen

Facts: The trial court rendered a decision and the accused-appellants were all found guilty

beyond reasonable doubt of the crime of Murder after having performed a cultic healing pray-

over which resulted to the death of Randy Luntayao. They were sentenced to suffer the penalty

of RECLUSION PERPETUA.

Issue: WON accused-appellants can be held liable for reckless imprudence resulting in homicide,

considering that the information charges them with murder.

Held: Yes. Conviction modified to reckless imprudence resulting in homicide. Killing a person

w/ treachery is murder even if there is no intent to kill. When death occurs, its presumed to be

the natural consequence of physical injuries inflicted. In murder qualified by treachery, its

required only that there is treachery in the attack, & this is true even if the offender has no intent

to kill the person assaulted

One who commits an intentional felony is responsible for all the consequences which may

naturally and logically result therefrom, whether foreseen or intended or not.
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Intent is presumed from the commission of an unlawful act. The presumption of criminal intent

may arise from the proof of the criminal act.

Hence, they are liable for all the direct and natural consequences of their unlawful act, even if the

ultimate result had not been intended.

The strange procedure resulted in the death of the boy. Thus, accused-appellants had no criminal

intent to kill the boy. Their liability arises from their reckless imprudence because they ought

that to know their actions would not bring about the cure. They are, therefore, guilty of reckless

imprudence resulting in homicide and not of murder.

RPC A365, as amended, states that reckless imprudence consists in voluntarily, but w/o malice,

doing or failing to do an act from which material damage results by reason of inexcusable lack of

precaution on the part of the person performing such act. Compared to intentional felonies, such

as homicide or murder, what takes the place of the element of malice or intention to commit a

wrong or evil is the failure of the offender to take precautions due to lack of skill taking into

account his employment, or occupation, degree of intelligence, physical condition, & other

circumstances regarding persons, time, & place.

The elements of reckless imprudence are apparent in the acts done by accused-appellants which,

because of their lack of medical skill in treating the victim of his alleged ailment, resulted in the

latters death.

The accused had no intention to cause an evil but rather to remedy the victims ailment.

TCs reliance on the rule that criminal intent is presumed from the commission of an unlawful

act is untenable because such presumption only holds in the absence of proof to the contrary.

Consequently, treachery cannot be appreciated for in the absence of intent to kill, theres no

treachery or the deliberate employment of means, methods, & manner of execution to ensure the

safety of the accused from the defensive or retaliatory attacks coming from the victim.

On the other hand, there is no merit in accused-appellants contention that the testimony of

prosecution eyewitness Honey Fe Abella is not credible.


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Second. Yes. Rule 120 (Section 4 and 5) of the Revised Rules of Criminal Procedure provides.

Rule: WHEREFORE, the decision of the RTC, Br. 14, Cebu City, is AFFIRMED with the

MODIFICATION that accused-appellants are hereby declared guilty of reckless imprudence

resulting in homicide & are each sentenced to suffer an indeterminate prison term of 4 mos. of

arresto mayor, as minimum, to 4 years & 2 mos. of prision correccional, as maximum. In

addition, accused-appellants are ORDERED jointly & severally to pay the heirs of Randy

Luntayao indemnity in the amount of P50K, moral damages in the amount of P50,000.00, and

exemplary damages in the amount of P30K.

Pp vs. Buan

Nature: Appeal from an order of the Bulacan CFI

Facts: Charges moved to quash on the ground that he had already been acquitted of the same

offense by the Justice of the Peace Court

Issue: WON second case placed the appellant twice in jeopardy for the same offense, and is

barred by the previous acquittal.

Held: Yes. Order appealed from is reversed and the CFI of Bulacan is directed to quash &

dismiss the charge in its Criminal Case No. 5243, no costs. Once convicted or acquitted of a

specific act of reckless imprudence, the accused may not be prosecuted again for that same act.

The essence of the quasi-offense of criminal negligence under RPC A365 lies in the execution of

an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The

law penalizes the negligent or careless act, not the result thereof. The gravity of the consequence

is only taken into account to determine the penalty; it does not qualify the substance of the

offense. As the carelessness of the act is single, whether the injurious result should affect one


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person or several persons, the offense remains one and the same. It cannot be split into different

crimes and prosecutions.

The exoneration of appellant by the Municipal Court of the charged of slight physical injuries

through reckless imprudence, prevents his being prosecuted for serious physical injuries through

reckless imprudence in the CFI of the province where both charges are derived from the

consequence of one and the same vehicular accident. The second accusation places the appellant

in the second jeopardy for the same offense.

SECOND DIVISION

[G.R. No. 127818. November 11, 1998]

PEOPLE OF THE PHILIPPINES. plainti f f-appell ee, vs. GUILLERMO NEPOMUCENO,

JR, accused-appel lant .

D E C I S I O N

MELO, J.:

Accused-appellant Guillermo Nepomuceno, Jr. has interposed the instant appeal in regard tothe decision dated November 20, 1996 ofthe Regional Trial Court of the National Capital

Judicial Region (Manila, Branch 46) which decreed:

Wherefore, the court hereby renders judgment finding the accused guilty beyond reasonable

doubt of the crime of parricide as defined and penalized under Article 246 of the Revised Penal

Code as amended by Republic Act No. 7659 for the death of Grace Nepomuceno and herebysentences him to suffer imprisonment of Forty (40) years of reclusion perpetua and to pay the

heirs of the deceased the sum ofP50,000.00 with costsagainst him.

Pursuant to Article 921, paragraph (1) of the Civil Code, the court declares the accused ineligibleto inherit from his wife. The entire estate should go to his son, Giordan Benitez Nepomuceno.

(pp. 20-21, Rollo)

The Information against accused-appellant charged:


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That on or about May 2, 1994, in the City of Manila, Philippines, the said accused, did then and

there willfully, unlawfully and feloniously, with intent to kill and with treachery and evident

premeditation, attack, assault and use personalviolence upon the person ofone GRACENEPOMUCENO Y BENITEZ, his wife, with whom he was married in lawful wedlock, by then

and there shooting her with a gun of unknown caliber hitting her on the left hip, thereby

inflicting upon the said GRACE NEPOMUCENO Y BENITEZ gunshot wound which wasnecessarilyfatal and which was the direct and immediate cause ofher death thereafter.

(p. 5, Rollo)

Upon arraignment, accused-appellant, entered a plea ofnotguilty and trial ensued in due

course. Thereafter, the trial court rendered the judgment of conviction nowon appeal.

The prosecution presented seven witnesses, namely, Eden Ontog, SPO2 Rodolfo Rival,Forensic Chemist Mary Ann Aranas, Medico-Legal Examiner Floresto Arizala, Monserrat De

Leon, Ballistic Expert Isabelo Silvestre, Jr. and Romeo Pabalan.

Eden Ontog declared that on May 2, 1994, shewas the housemaid of the spousesGuillermoNepomuceno, Jr. and Grace Nepomuceno, having started as such since May 31, 1993. At around11 o'clockonthe evening of May 2, 1994, accused-appellant, who was drunk, arrived and went

to their bedroom where Eden and her ward Giordan the one-year old son ofthe couple, were

sleeping. She was awakened by the loud voices of thespouses who were arguing. She sawaccused-appellant get a gun from a drawer, so she went out of the room because of fear. After a

few moments and while she was outside the room, she heard Grace Nepomuceno say: "Sige

patayin mo ako, patayin mo na kami ng anak ko." Then Eden heard a gunshot. She was soscared that she went out of the house, reaching the door of the house of Barangay Chairman

Congen Leonardo which is 5 meters away. After ten minutes, she saw accused-appellant coming

out of the room. He told her to get a taxi so he could bring the wounded Grace to the

hospital. She was left behind in their room to take care of baby Giordan. She tried to call upMonserrat de Leon, the sister of Grace in Pasig to inform her of the incident, but she could not

get any connection (tsn, July 27, 1994, pp. 4-17; 24-42).

Mary Ann T. Aranas, a chemist of the National Bureau of Investigation Chemistry Division,declared that she conducted paraffin examination on both hands of the victim and those of

accused-appellant. She found the victim's hands negative of nitrates, but found accused-

appellant's right hand positive thereof. She gave the opinion that in view of the absence

ofnitrates on the hands of the victim, it is probable that she did not fire a gun and that accused-appellant, being positive of nitrates, did really fire a gun (tsn, August 31, 1994, pp. 17, 22; tsn,

July 8, 1996, p. 6).

Dr. Floresto Arizala, Jr., the Medico~Legal Officer of the NBI who conducted a second-postmortem examination of the victim on May 7, 1994 at the Capitol Memorial Chapels, foundthat the victim died due to a gunshot wound, with the slug hitting the left internal iliac artery and

the small intestines and thereafter resting between the uterus and the sacrum of the victim. He

testified that taking into consideration the location of the wound, if the victim were in a sitting orlying position, the trajectory of the slug was upward coming from right to left; and if the victim

were in a standing position, the muzzle of the gun should have pointed up. The witness declared

that the muzzle of the gun could not have been lessthat one foot from the victim. He opined that


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grappling for possession of the gun was impossiblebecause the trajectory of the bullet was going

upwards and there were no smudges or signs of closefiring. He believed that the victim could

have survived if the surgeons had operated immediately (tsn, July 23, 1996, pp. 15-30).

Monserrat de Leon, sister of the victim, declared that Grace would confideto her thataccused-appellant was jobless and that Grace had problems with the low income of the store she

owned at Zurbaran Mart as compared to her expenses. Accused-appellant would force sex onGrace especially when he was drunk. Her sister had two miscarriages after their first child and itwas during one ofthese miscarriages that she saw accused-appellant carrying a gun in the Mary

Chiles Hospital where her sister was confined (tsn, August 12, 1996, pp. 3-28).

Upon the other hand, the defense presented accused~appellant himself as itslonewitness. His story was quoted by the trial court thus:

Two days before the incident on May 2, 1994, Grace, the deceased was very much worried about

the check (sic) she issued which was post dated May 2, 1994. She would have no funds for thechecks. She had been nagging him, displaying her tantrums (nagdadabog) pestering him to do

something to be able to fund the checks.

In the noon time of May 2, 1994, he left her spouse in their store and went to his mother's house

in San Andres Bukid, Manila. This day was the day after the accused-appellant and his wife, and

in-laws arrived from Batangas to attend a town fiesta.

He left the store to avoid further nagging, tantrums and pestering of his wife about his inability toproduce money to be able to fund the postdated checks (sic).

At about 11:00 P.M. after dropping at a friend's house, he decided to go home, thinking his wife

has already cooled off.

When his wife opened the door, she greeted the husband: 'You left in the store and youroom(roam) around, where you able to find money.' He replied, 'where would I get money, do

you expect me to hold up people?' (tsn, October 5, 1994,p. 18)

They had some arguments and Eden Ontog went out of their bedroom, and the arguments

continued. There was a point in the argument when the wife told the accused thus: 'Wala akong

silbi, bakit pa ako nag-asawa sa kanya.'

Because of these continued pestering and nagging of hiswife he thought of separation. Perhaps

it would be better if he should end his life. He then took a gun from their child's drawer. He sat

on the bed holding that gun, engrossed in his thinking what to do. The gunwas pointed towardsthe floor oftheir room.

In that situation, his wife continued with his nagging and pestering. He just remained silent.

And then Guillermo asked her wife: 'How come you do not treat me as a husband, why do youtreat me like this.'


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It was at this point that Guillermo decided to end his life. Perhaps seriously, perhaps just to scare

his wife to stop all the pestering and tantrums. Surely not only a few husbands would thought

(sic) as what that Guillermo was thinking then, he felt desperate. He wanted to finish his life. (p.24,TSN, October 5, 1994)

It was during that time that their son, Jordan woke up, walked to the space between them(husband and wife) and Nepomuceno block his son'sway with his right knee. In the process, he

wanted to totally force Grace from taking possession and control of the gun. He raised his arm

holding the gun passing over the left leg of Grace.

The gun went off.

(pp. 16-17, Rollo)

Aggrieved by the decision of the trial court, accused-appellant assigns the following errors:

I

THE TRIAL COURT ERRED IN NOT FINDING THE KILLING WAS ACCIDENTAL, ANDTHAT THE DECEASED WAS EXEMPT FROM CRIMINAL LIABILITY.

II

ASSUMING THE ACCUSED ISCRIMINALLY LIABLE, THE TRIAL COURT ERRED INNOT FINDING THE KILLING WAS RESULT OF SIMPLE NEGLIGENCE.

III

THE TRIAL COURT ERRED IN FINDINGTHAT THE GUILT OF THE ACCUSED WASPROVEN BEYOND REASONABLE DOUBT.

(p. 5, Appellant's Brief.)

In support of the first assigned error, accused-appellant contends that he did not have theleast intention of killing his wife. He urges the Court to consider the circumstances attendant to

the killing, which, according to him negate all inferences and deductions, that he would kill his

wife. First, the deceased was hit in the upper leg, not in any vital organ. If he had the intentionof killing the deceased, he would have shot her at the most vital part of her body.

Secondly, the reaction of the deceased after she was hit was contrary to ordinary and usual

human behavior, if her husband really intended to kill her. The deceased just uttered, "MasakitPapa", she did not curse nor mouth evil and harsh language against accused-appellant to showhatred and anger.

Thirdly, if accused-appellant really intended to kill his wife, why did he call a taxi and bring

her to the hospital for immediate medical attention?

Fourthly, why should accused-appellant voluntarily surrender to the police, if the incidentwas not accidental?


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Accused-appellant claims exemption from criminal liability under Paragraph 4, Article 12 of

the Revised Penal Code because, according to him, the incident occurred when he tried to

prevent his wife from killing herself, and he and his wife grappled for possession ofthe gun.

After a painstaking review of the evidence and record of this case, the Court finds itselfunable to reach conclusions identical to those put forward by accused-appellant.

First, accused-appellant cannot invoke the benevolent provisions ofParagraph 4, Article 12

of the Revised Penal Code in order to be exempted from criminal liability arising from the deathof his wife, Grace Nepomuceno. Said provision pertinently states:

Art. 12. Circumstances which exempt from criminal liability. The following are exempt fromcriminal liability:

x x x

x x x

x x x

4. Any person who, while performing a lawful act with due care, causes an injury by mere

accident without fault or intention of causing it.

At all events, accident to be exempting, presupposes that the act done is lawful. Here,

however, the act of accused-appellant of drawing a weapon in the course ofa quarrel, the samenot being in self-defense, is unlawful -- it at least constitutes light threats (Article 285, par.1, Revised Penal Code). There is thus no room for the invocation of accident as a ground for

exemption (People vs. Reyta, Jr., 13 CAR (25) 1190; 1195 [1968]).

The gun which accused-appellant took from hischild's drawer was not even licensed or

registered in his name as shown by the Certification of the Firearms and Explosives Office of thePhilippine National Police, hence, he could have been charged with illegal possession ofa

firearm.

Secondly, accused~appellant's claim that the shooting happened when he tried to prevent his

wife from killing herself and he and his wife grappled for the possession ofthe gun is belied bythe expert testimony of Dr. Floresto Arizala, Jr. of the NBI who conducted a second post mortem

examination on the cadaver of Grace Nepomuceno. He declared:

Q. Now, is it possible Doctor, considering the location of the wound, the entrance wound

and the trajectory of the bullet upwards, would you say Doctor, that both parties, I meanthe victim and the assailant were grappling for the possession of said gun and it went off

accidentally, is that possible, Mr. Witness?

A. Well, Ihave to be convinced as to the grappling between the victim and the assailant,

because if we were to be re-construct of the scenario that the gun have been fired, themuzzle of the gun could not have been closer than twelve (12) inches and considering

that the gun was held by a hand, it farther places the assailant farther from the victim and

farther the victim is, from the assailant, then the more impossible for the grappling for thegun. (tsn, July 23, 1996, pp. 19~20).


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Thirdly, accused-appellant, testifying on the relative positions ofthe victim and himself

when the gun discharged, stated:

Q. Please tell the court your relative position and the victim when the gun actually went off?

A. When I was in the act of trying to dispossess Grace with that gun and I was trying to let

my right hand pass through my right side but because Grace was struggling, the butt ofthe gun hit a part of her upper leg and it exploded.

Q. So when the gun actually fired, you were holding that gun, what part of your arm beingheld by Grace?

A. Witness pointing the upper forearm and the lower portion of her upper arm."

(tsn, Oct. 5, 1994, p. 28.)

If Grace were holding the upper forearm and lower portion of the upper arm of accused-

appellant when the gun fired, then at least the hand of Grace that held the upper forearm ofappellant would have traces of nitrate considering its nearness to the exploding gun. However,

in the paraffin test conducted by the Forensic Chemistry Division of the National Bureau ofInvestigation on Grace Nepomuceno's both hands, no traces of nitrates were found- whileaccused-appellant's right hand was positive of nitrates. The absence of nitrates on the victim's

hands is convincing proof that she did not grapple with accused-appellant for the possession

ofthe gun. It alsoproves that she was shot at a distance.

The fact that the victim was not shot in the head, or in any vital part of her body does notnegate intent to kill. The Post Mortem findings on the cadaver of Grace Nepomuceno by Dr.

Arizala shows that the bullet entered "the left thigh, lateral aspect, upper third . . . directed slight

forwards, slightly upwards and from left to right initially involving the skin and subcutaneoustissue, then taking an intramascular route into the pelvic cavity thru the left obturator foramen,

partially transecting the left internal iliacartery and the small intestines with the slug lodging just

underneath the uterus in front of the sacrum where it was recovered." The extent of the physicalinjury inflicted on Grace, as above proved, manifests intention to extinguish life (People vs.Dawandawan, 184 SCRA 264 [1994]). Moreover, Dr. Arizala likewise declared that the bullet

injured a vital organ of the victim (tsn, July 23, 1996, p. 9).

The fact that Grace, upon being shot, uttered, "Masakit, Papa" and did not use harshlanguage against accused-appellant does not, in any way, negate intent to kill. The utterance of a

victim made immediately after sustaining serious injuries may be considered as pure emanations

of the incident or the incident speaking through the victim (People vs. Morin, 241 SCRA 709;710 [1995]). Thus, by the word "Papa", Grace was in effect, saying that it was accused-appellant

who shot her.

We agree with the Solicitor General that the act of accused-appellant ordering Eden Ontogto call a taxi in which he brought the wounded Grace to the hospital is "merely an indication or

act of repentance or contrition on the part of appellant" (Appellee's Brief, p. 71, Rollo).

Accused-appellant's voluntary surrender is not sufficient ground to exculpate him

fromcriminal liability. The law does not findunusual the voluntary surrender of criminal

offenders; it merely considers such act as a mitigating circumstance. Non-flight isnot proof ofinnocence (People vs. Quijada, 259 SCRA 191 [1996]).


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Under the second assigned error, accused-appellant claims that even assuming that the

killing was not totally accidental, his acts would constitute only simple negligence. He asserts

that he had established that the gun went off while he was grappling with his wife for itspossession. He was preventing his wife from taking her own life. He might not have exercised

the necessary due care in wrestling for the gun that resulted in the injury of his wife, but he could

be charged only with parricide through simple negligence. So he says.It has been held that a deliberate intentto do an unlawful act is essentially inconsistent with

the idea of reckless imprudence (People vs. Oanis, et al., 74 Phil 257 (1943);People

vs. Nanquil, 43 Phil 232 [1922]). What qualifies an act of reckless or simplenegligence or

imprudence is the lack ofmalice or criminal intent in the execution thereof(United Statesvs. Maleza, 14 Phil 468, 471[1909]). Otherwise stated, in criminal negligence, the injury caused

to another should be unintentional, it being simply the incident of another act done without

malice but with lack of foresight, or with carelessnessor negligence, and which has harmed

society or an individual (People vs. Castillo, Jr., (275 SCRA 752 [1997]).

The argument of accused-appellant finds no support in the physical evidence. As already

discussed, if the version of grappling for the gun were to be believed, there should have beennitrates on both hands of Grace. And if it was when accused-appellant placed the barrel of the

gun at the base of his head that Grace grabbed his hand holding the gun and in the struggle for itspossession his hand holding the gun was pushed down so that its butt hit the upper leg ofGrace

causing it to fire, then the trajectory of the slug should be downwards, through the upper thigh of

Grace where it entered. Yet, the autopsy report of Dr. Arizala, Jr. showed the bullet entered theleft thigh ofGrace directed slightly upwards and from left to right, taking an intramascular route

into the pelvic cavity, instead of a downward direction if accused-appellant's version were to be

believed.

Thus, over and above the testimony of accused-appellant, these physical evidence, the lackof powder burns or nitrates on the hands of Grace and the trajectory of the bullet that entered her

left thigh being slightly upwards and from left to right instead of downwards, repudiate accused-appellant's claim of simple negligence. Physical evidence is mute but an eloquent manifestationof truth and rates high in our hierarchy of trustworthy evidence (People vs. Uycoqua, 246 SCRA

769 [1995]).

Lastly, accused-appellant, perhaps in desperation, resorts to the shotgun type of argument

that his guilt has not been proved beyond reasonable doubt. The argument is bereftof merit.

The prosecution has sufficiently established the elements of parricide by its evidence. These

elements are: (1) the death of the deceased; (2) that she was killed by the accused; and (3) that

the deceased was a legitimate ascendant or descendant, or the legitimate spouse ofthe accused

(Article 246, Revised Penal Code; People vs. Embalido, 58 Phil 154 (1933)].

The first and third elements were stipulated during the pre~trial stage of the case, thus:

1. that the victim and the accused are legally married. Said civil marriage took place on July5, 1990;

x x x


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5. that immediately after the shooting, the accused voluntarily and bodily carried the victim

into a taxicab and proceeded to UERM Hospital where she died onthe operating table." (Pre-

Trial Order of July 11, 1994, Record, p. 6)

The only issue then is whether accused-appellant intentionally killed Grace Nepomuceno,

his legally wedded wife.In convicting accused-appellant, the trial court relied heavily on the testimony of the

prosecution witnesses. This Court finds no reason to do otherwise. It is a fundamental and

settled rule that the trial court's assessment in regard to the credibility of witnesses is entitled tothe highest degree of respect and will not be disturbed on appeal, as the t

II. Persons Responsible and Conduct Punished

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