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 credibility that 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.

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

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. 5. WON witness testimonies were valid? WON alibi warranted? Yes. Inconsistencies mean and even strengthen. It was not rehearsed 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 witness or 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.

DECISION 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 of reclusion perpetua, and ordering them 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 Robert Pagayon 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 their respective names: Michael Pagayon (Michael), a cousin of the victim, testified that on November 20, 1996, at about 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 was about 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] Michael then 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 Barangay Agtambo 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 the victim, 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 about 7 p.m. on November 20, 1996, appellant Pabiona and his brother Popoy went to her house at

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 house and 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 the lifeless 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 her sons 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 the jeepney, 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 victims body 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 victim died. 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 shoulder all 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 of appellant 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 on the 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 of appellant Pabionas instructions. She later agreed upon Emmas prodding.

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 unidentified woman.[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 victim on 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) 2) Hematoma, left periorbital area, measuring 4 x 4 cm, 5 cm from its anterior midline. 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 its anterior 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 3rd of the right thigh, measuring 9 x 3 cm, 7 cm medial to its anterior midline. 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.

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 multiple traumatic 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 would resume 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 appellant Pabionas 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 at about 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 a nipa 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 who were 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 accused de los Reyes was inside the well cradling the victim. Appellant Pabiona then instructed appellants 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 his armpits, pulling the rope (by appellant Pabiona) as appellant Metano and accused de los Reyes helped appellant Silarca climb the bamboo ladder inside the well.

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 bring Robert 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. Appellant Pabiona 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 Barangay Agtambo 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 one of 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. Accused de 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 the victims 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 6:30 a.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 at appellant 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 likewise testified 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. The dispositive portion reads, quoted verbatim: WHEREFORE, premises considered and in the light of the facts obtaining and the jurisprudence aforecited, 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 of RECLUSION

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 following as errors of the trial court: I THE HONORABLE TRIAL COURT ERRED IN GIVEN (sic) CREDENCE TO THE UNCORROBORATED TESTIMONY OF THE LONE WITNESS OF THE PROSECUTION MICHAEL PAGAYON II THE PROSECUTION EVIDENCE IS PURELY CIRCUMSTANTIAL AND DOES NOT SATISFY 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 MICHAEL PAGAYON II THE HONORABLE TRIAL COURT ERRED IN HOLDING THAT, IN THE ALTERNATIVE, THERE IS CIRCUMSTANTIAL EVIDENCE SUFFICIENT TO WARRANT CONVICTION OF THE ACCUSED

III THE HONORABLE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY OF THE CRIME OF MURDER BEYOND REASONABLE DOUBT[38] Per certification[39] dated April 9, 2003 issued by Assistant Director Joselito A. Fajardo of the 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 transpired and 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 and immediately 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 any casket 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 mother naked with his clothes nowhere to be found except for a stripe (sic) short pants on not belonging to 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? At around 9:00 oclock I went to a store to buy cigarettes but the store was already closed.

A:

Q: A: Q: A:

Because the store was already closed at 9:00 oclock when you intended to buy cigarettes, what happened next? I walked home because there was no cigarettes. 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? About 300 meters. xxx

Q:

When you were walking from the store where you intended to buy cigarettes back to your house, to the house of your aunt Rosalina Padernal, did you notice of (sic) any unusual incident? Yes, sir. What was that about? I heard a shout asking for help. When you heard a shout asking for help, what did you do? I went near. From where [did] that shout of help came (sic) from? From the river. From where you were standing at that time towards the place in the river where the shout came from, how far from (sic) you? 10 meters. Were you able to reach the river where the shout for help came from? No, sir. 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? 10 meters. xxx

A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A:

Q: A:

You said you saw them mauling and kicking a person, why were you able to see those people mauling and kicking a person? Because I went there. xxx

Q: A: Q:

How many people were mauling that person? Five. How many persons were being mauled and kicked?

A: Q: A: Q: A: Q: A: Q: A: Q: Q: A: Q: Q: Q: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A:

One. Do you know these persons who mauled the person? Yes, sir. Can you mention their names? Yes, sir. Please tell the Court? Benjie Pabiona, Antonio Silarcan (sic), Roberto Metano (Witness pointing to persons seated on the accused bench), Roselo Basalatan, Christopher delos Reyes. This Benjie Pabiona that you mentioned, is he inside the Courtroom? Yes, sir. Please point to him? (Witness pointing to a person inside the Courtroom who when asked answered to the name of Benjie Pabiona. How about Antonio Silarca, is he inside the Courtroom? Yes, sir. Please point to the accused. (Witness pointing to a person when asked answered to the name of Antonio Silarca). How about Roselo Basalatan? (Witness pointing to a person when asked answered to the name of Roselo Basalatan). How about Roberto Metano? (Witness pointing to a person who answered to the name of Roberto Metano). How about Christopher delos Reyes, is he inside the Courtroom? No, sir. You said that these people were mauling aperson (sic), what was Benjie Pabiona particularly doing at that time you saw (sic)? Holding a bamboo. What was he doing with the bamboo? Striking. While he was striking the person with the bamboo, was he saying anything? Yes, sir. What did he say? What I have heard, What did you tell, ha? How about this Antonio Silarca, what was he doing actually? Also holding a bamboo.

Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A:

What was he doing with the bamboo? Striking with the bamboo. How about Roselo Basalatan, what was he doing at that time? Also holding a bamboo. What was he doing? Also hitting. How about Roberto Metano, what was he doing at that time? Also the same. How about Christopher delos Reyes, what was he doing at that time? Also the same. Have you seen how big is the bamboo being held by Benjie Pabiona? Yes, sir. Will you please show? As big as my wrist which is about 2 inches in diameter. xxx At thattime (sic), at about 9:00 oclock in the evening that you saw these people mauling the person, do you know the person being mauled at that time? No, sir. Because that night you did not know who the person being mauled (sic), what did you do? I went home. You went home to whose house? Antie (sic) Saling. The following morning what time did you wake up? 6:00 oclock. When you woke up where did you go? I went back to Iloilo to my work. xxx

Q: A: Q: A: Q: A: Q: A: Q: A:

Q: A: Q:

Were you present when Robert Pagayon died? No, sir. So you do not personally know at what time did Robert Pagayon die?

A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A:

No, sir. Also you do not know on what date Robert Pagayon died because you were not there? I do not know the time, place on November 21 and November 20 when he died. Also you do not know the actual circumstances and how Robert Pagayon died because you were not there? I know. You were there when Robert Pagayon died? No, sir. So how did you know how Robert Pagayon died because you said you do (sic) were not there? When he was mauled he is not yet dead. Did you see Robert Pagayon being mauled? Yes, sir. You are very positive that you saw Robert Pagayon being mauled? Yes, sir. You said that because you saw the person being mauled? The one being mauled I do not know him when he was being mauled. And you are saying that you are merely making a conclusion and your opinion that the person mauled was Robert Pagayon? Yes, sir. That is your own belief? 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 beyond reasonable 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 proven facts 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 one circumstance; (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

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 hypothesis except 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 the guilt 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 the victims head which, in turn, could have caused his death soon thereafter. As testified to by Dr. Lebaquin: Q: A: Of these injuries mentioned, what could have been considered as the fatal injury which caused the death? Fracture of the skull. xxx Q: A: Q: A: Q: A: In terms of minutes, how many minutes or hours will death occur after these injuries were sustained? There was a blood clot. I think immediately, it is possible the victim could have died minutes after. 5 minutes? Possible. 10 minutes? 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 body are 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 his slipping from the 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: A: Q: A: 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? Left jaw. In the laymans language, please kindly explain to the Court this injury? In our dialect this is called gasgas, caused by rubbing in a rough surface.

Q: A:

Please explain what could have caused this? 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 which commenced long before November 20, 1996. While the motive of the accused in a criminal case is generally held to be immaterial, not being 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 in allegedly 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 here in Court? No, sir, he has no enemy.[53]

A:

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 was even 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 he was 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 was an 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 categorically declared 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? xxx A: Q: A: I saw the two but I do not know them. But during the direct examination you said there were five (5) persons who mauled (sic)? Yes, sir.[57]

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 not unnatural 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 barangay officials be considered as an indication of their guilt, as the records show that they, through their relatives,[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. In People v. Capili,[59] this Court similarly ruled that the circumstantial evidence adduced by the prosecution was utterly inadequate to justify a judgment of conviction: In fact, there is even some possibility that Baduas identification of accused-appellant as the perpetrator 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 the victim by the riverside on October 7, 1994. The foregoing considerations taken together cast reasonable doubt on the culpability of accused-appellant as killer of Alberto Capili. The evidence 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 and shoulders 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 accusedappellant 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 does not 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 evidence presented. 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 create suspicion that appellants probably perpetrated the crime charged. However, it is not sufficient for 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 reasonable doubt 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

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 strength of 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 of reasonable doubt. Their immediate release from custody is hereby ordered unless they are being held 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 prayover 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.

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.

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

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. plaintiff-appellee, vs. GUILLERMO NEPOMUCENO, JR, accused-appellant . DECISION MELO, J.: Accused-appellant Guillermo Nepomuceno, Jr. has interposed the instant appeal in regard to the decision dated November 20, 1996 of the 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 hereby sentences 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 costs against him. Pursuant to Article 921, paragraph (1) of the Civil Code, the court declares the accused ineligible to 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:

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 personal violence upon the person of one GRACE NEPOMUCENO 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 was necessarily fatal and which was the direct and immediate cause ofher death thereafter. (p. 5, Rollo) Upon arraignment, accused-appellant, entered a plea of not guilty and trial ensued in due course. Thereafter, the trial court rendered the judgment of conviction now on 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, she was the housemaid of the spouses Guillermo Nepomuceno, Jr. and Grace Nepomuceno, having started as such since May 31, 1993. At around 11 o'clock on the 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 of the couple, were sleeping. She was awakened by the loud voices of the spouses who were arguing. She saw accused-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 so scared 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 up Monserrat 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 accusedappellant's right hand positive thereof. She gave the opinion that in view of the absence of nitrates on the hands of the victim, it is probable that she did not fire a gun and that accusedappellant, 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 secondpost mortem examination of the victim on May 7, 1994 at the Capitol Memorial Chapels, found that 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 or lying 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 less that one foot from the victim. He opined that

grappling for possession of the gun was impossiblebecause the trajectory of the bullet was going upwards and there were no smudges or signs of close firing. 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 confide to her that accused-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 on Grace especially when he was drunk. Her sister had two miscarriages after their first child and it was during one of these 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 its lone witness. 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 the checks. 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 to produce 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 you room (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 his wife 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 gun was pointed towards the floor of their 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 you treat me like this.'

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's way 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, AND THAT THE DECEASED WAS EXEMPT FROM CRIMINAL LIABILITY. II ASSUMING THE ACCUSED IS CRIMINALLY LIABLE, THE TRIAL COURT ERRED IN NOT FINDING THE KILLING WAS RESULT OF SIMPLE NEGLIGENCE. III THE TRIAL COURT ERRED IN FINDING THAT THE GUILT OF THE ACCUSED WAS PROVEN BEYOND REASONABLE DOUBT. (p. 5, Appellant's Brief.) In support of the first assigned error, accused-appellant contends that he did not have the least 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 intention of 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, "Masakit Papa", she did not curse nor mouth evil and harsh language against accused-appellant to show hatred 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 incident was not accidental?

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 of the gun. After a painstaking review of the evidence and record of this case, the Court finds itself unable to reach conclusions identical to those put forward by accused-appellant. First, accused-appellant cannot invoke the benevolent provisions of Paragraph 4, Article 12 of the Revised Penal Code in order to be exempted from criminal liability arising from the death of his wife, Grace Nepomuceno. Said provision pertinently states: Art. 12. Circumstances which exempt from criminal liability. The following are exempt from criminal liability: xxx xxx xxx 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 of a quarrel, the same not 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 his child's drawer was not even licensed or registered in his name as shown by the Certification of the Firearms and Explosives Office of the Philippine National Police, hence, he could have been charged with illegal possession of a 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 of the gun is belied by the 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 mean the victim and the assailant were grappling for the possession of said gun and it went off accidentally, is that possible, Mr. Witness? A. Well, I have 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, the muzzle 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 the gun. (tsn, July 23, 1996, pp. 19~20).

Thirdly, accused-appellant, testifying on the relative positions of the 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 of the 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 being held 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 accusedappellant when the gun fired, then at least the hand of Grace that held the upper forearm of appellant 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 of Investigation on Grace Nepomuceno's both hands, no traces of nitrates were found- while accused-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 of the gun. It also proves 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 not negate 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 subcutaneous tissue, then taking an intramascular route into the pelvic cavity thru the left obturator foramen, partially transecting the left internal iliac artery 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 physical injury 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 harsh language 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 Ontog to 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 from criminal liability. The law does not find unusual the voluntary surrender of criminal offenders; it merely considers such act as a mitigating circumstance. Non-flight is not proof of innocence (People vs. Quijada, 259 SCRA 191 [1996]).

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 its possession. 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 intent to 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 simple negligence or imprudence is the lack of malice or criminal intent in the execution thereof (United States vs. 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 carelessness or 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 been nitrates 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 its possession his hand holding the gun was pushed down so that its butt hit the upper leg of Grace 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 the left thigh of Grace 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 lack of 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 accusedappellant's claim of simple negligence. Physical evidence is mute but an eloquent manifestation of 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 bereft of 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 of the 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 July 5, 1990; x x x

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 on the operating table." (PreTrial 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 to the highest degree of respect and will not be disturbed on appeal, as the trial court was in a better position to examine real evidence as well as to observe the demeanor of the witnesses (People vs. Dominguez, 217 SCRA 170 [1993]; People vs. Camaddo, 217 SCRA 162 [1993]; People vs. Vallena (244 SCRA 685 [1995]). The Court agrees with the conclusions of the trial court as they are founded on the dictum that evidence to be believed must not only proceed from the mouth of a credible witness, but must be credible in itself - such as the common experience of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony, except in conformity with our knowledge, observation, and experience. Whatever is repugnant to these belongs to the miraculous and is outside of judicial cognizance (People vs. Escalante, 238 SCRA 554 [1994]). Further, accused-appellant having admitted that he shot his wife, he has the burden of proof of establishing the presence of any circumstance which may relieve him of responsibility, and to prove justification he must rely on the strength of his own evidence and not on the weakness of that of the prosecution, for even if this be weak, it can not be disbelieved after the accused has admitted the killing(People vs. Bautista, 254 SCRA 621 [1996). Unfortunately for accusedappellant, he has miserably failed to discharge this task. The trial court correctly appreciated the voluntary surrender of accused-appellant as a mitigating circumstance, this fact having been stipulated by the parties at the pre-trial stage of this case (Pre~Trial Order, Stipulation No. 10 Record, p. 17) The penalty for the crime of parricide is reclusion perpetua to death; however, there being one mitigating circumstance but no aggravating circumstance, the lower of the two indivisible penalties should be imposed. The penalty cannot be further reduced by one degree as the Indeterminate Sentence Law does not find application, the penalties involved being indivisible. WHEREFORE, the assailed decision convicting accused-appellant GUILLERMO NEPOMUCENO, JR. of the crime of Parricide is hereby AFFIRMED with the slight modification that his sentence shall be simply reclusion perpetua not "imprisonment of Forty (40) Years of reclusion perpetua" as stated by the trial court. SO ORDERED. Puno and Mendoza, JJ., concur. Martinez, J., no part, on official leave. Pp vs Ah chong

Facts: Ah Chong was a cook in Ft. McKinley. He was afraid of bad elements. One evening, before going to bed, he locked himself in his room by placing a chair against the door. After having gone to bed, he was awakened by someone trying to open the door. He called out twice, Who is there, but received no answer. Fearing that the intruder was a robber, he leaped from his bed & called out again, If you enter the room I will kill you. But at that precise moment, he was struck by the chair that had been placed against the door, & believing that he was being attacked he seized a kitchen knife & struck & fatally wounded the intruder who turned out to be his roommate.

Held: Ah Chong must be acquitted because of mistake of fact. Ratio: Had the facts been as Ah Chong believed them to be, he would have been justified in killing the intruder under A11, par. 1, of the RPC, which requires, to justify the act, that there be: ? ? ? unlawful aggression on the part of the person killed, reasonable necessity of the means employed to prevent or repel it, & lack of sufficient provocation on the part of the person defending himself

If the intruder was really a robber, forcing his way into the room of Ah Chong, there would have been unlawful aggression on the part of the intruder. There would have been a necessity on the part of Ah Chong to defend himself and/or his home. The knife would have been a reasonable means to prevent or repel such aggression. And Ah Chong gave no provocation at all. Under A11 of the RPC, there is nothing unlawful in the intention as well as in the act of the person making the defense.

People vs oanis

Facts: Chief of Police Oanis and his co-accused Corporal Galanta were under instructions to arrest one Balagtas, a notorious criminal and escaped convict, and if overpowered, to get hi dead or alive. Proceeding to the suspected house, they went into a room and on seeing a man sleeping with his back toward the door, simultaneously fired at him with their revolvers, without first making any reasonable inquiry as to his identity. The victim turned out to be an innocent man, Tecson, and not the wanted criminal.. Held: Both accused are guilty of murder Ratio: Even if it were true that the victim was the notorious criminal, the accused would not be justified in killing him while the latter was sleeping. In apprehending even the most notorious criminal, the law does not permit the captor to kill him. It is only when the fugitive from justice is determined to fight the officers of law who are trying to capture him that killing him would be justified.