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[G.R. No. 127755. April 14, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSELITO DEL ROSARIO FACTS: Accused del Rosario, Marquez, Santos and certain Dodong were charged with special complex crime of Robbery with Homicide for allegedly having robbed Virginia Bernas, a 66year old businesswoman in cash and jewelry and on the occasion thereof shot and killed her. Accused del Rosario pleaded not guilty of the crime, Santos and Dodong remained at large while Marquez was killed in a police encounter. Only del Rosario was tried and interposed the defense that he was not all part of the said robbery much more of the killing of the victim. Accused maintained that his participation in the crime was the used of his tricycle in pursuing the crime and that he only acted under threat and irresistible force as employed upon him by his coaccused through gun pointing at him. However, accused Del Rosario was still held by the court guilty of the crime charged. ISSUE: WHETHER OR NOT ACCUSEDs PARTICIPATION OF THE CRIME WAS UNDER THREAT AND IRRESISTABLE FORCE. RULING: The conviction of del Rosario was set aside. His claim for exemption from criminal liability under Art. 12, par. 5, Revised Penal Code as he acted under the compulsion of an irresistible force must be sustained. He was then unarmed and unable to protect himself when he was prevented at gunpoint by his co-accused from leaving the crime scene during the perpetration of the robbery and killing, and was only forced to help them escape after the commission of the crime. A person who acts under the compulsion of an irresistible force, like one who acts under the impulse of an uncontrollable fear of equal or greater injury, is exempt from criminal liability because he does not act with freedom. Actus me invito factus non est meus actus. An act done by me against my will is not my act. The force contemplated must be so formidable as to reduce the actor to a mere instrument who acts not only without will but against his will. The duress, force, fear or intimidation must be present, imminent and impending, and of such nature as to induce a well-grounded apprehension of death or serious bodily harm if the act be done. A threat of future injury is not enough. The compulsion must be of such a character as to leave no opportunity for the accused for escape or self-defense in equal combat. In the instant case, while del Rosario admits that he was at the locus criminis as he was the driver of the getaway vehicle, he nonetheless rebuts the imputation of guilt against him by asserting that he had no inkling of the malevolent design of his co-accused to rob and kill since he was not given any briefing thereof. He was merely hired by Boy Santos to drive to an agreed destination and he was prevented at gunpoint from leaving the scene of the crime since he was ordered to help them escape.

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[G.R. No. 129051. July 28, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO MOLINA y FLORES, accused-appellant. FACTS: Accused-appellant Molina was treated for injuriessustained when he was mauled without no apparent reason by several assailants, including Domingo, the victim, whom Molina looked up to as a father. At least 6 hours after the attack, Molina went to the house of Domingo and thereafter attacked the latter while sleeping, hitting and stabbing him with a stone and a short knife, resulting in Domingos death. ISSUE: Whether the mitigating circumstance of vindication of a grave offense is present. RULING: The mitigating circumstance of vindication of a grave offense was present. Being mauled by someone whom the accused respected akin to a father understandably engendered a strong feeling of vengeance on the latters part. As to the manner in which Molina killed the victim, the same was undoubtedly attended by treachery since the accused attacked Domingo while the latter was asleep and unable to defend himself. There is alevosiawhere the attack was sudden and unexpected, rendering the victim defenseless and ensuring the accomplishment of the assailants evil purpose without risk to himself. It should be emphasized that for dwelling to be appreciated as an aggravating circumstance, there must have been no provocation on the part of the victim. The provocation contemplated here is one that is sufficient and immediate to the commission of the crime. In other words, the invasion of the privacy of the offended partys house must have been the direct and immediate consequence of the provocation given by the latter as where, for example, the accused and the victim quarelled in front of the latters house and the accused, in a fit of rage entered the victims house and proceeded to stab him.[21] Such is not the situation in the case at bar because the killing in the victims house occurred at least six hours after the accuseds mauling. There is, however, the mitigating circumstance of vindication of a grave offense to offset the generic aggravating circumstance of dwelling. As the records show, accused-appellant was treated for injuries he sustained when he was mauled in the afternoon of July 14, 1995 and the prosecution did not offer anny rebuttal evidence to deny the allegation that Domingo was one of the men who beat up Molina. Indeed, that accused-appellant was mauled for no apparent reason by someone who looked up to as a father understandably engendered a strong feeling of vengeance on his part. Sadly, however, he chose to take the law into his own hands to sate his thirst for revenge.

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[G.R. No. 130010. May 26, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICENTE RABANILLO y MAGALONG, accused-appellant. FACTS: Rabanillo & the deceased Morales were drinking w/ their friends. One friend started a water fight game & Rabanillo joined the fun, accidentally dousing Morales w/ water. Morales reprimanded him because water got into his ear & they argued which led into a fistfight. They were pacified & ushered to their respective houses. The prosecutions version of the events was given credit by the court which claimed that after 30 minutes after, while Morales & some friends were having a conversation in the terrace of the house of Morales, Rabanillo went out his house w/ a 1-meter samurai & hacked Morales who died that same day. ISSUE: WHETHER OR NOT ACCUSED RABANILLO COUD BE GIVEN THE BENEFIT OF MITIGATING CIRCUMSTANCES OF PASSION & OBFUSCATION, DRUNKENNESS, & VOLUNTARY SURRENDER RULING: A. For passion & obfuscation to be mitigating, the same must originate from lawful feelings. From the version of the facts by the prosecution, clearly the assault was made in a fit of anger. The turmoil & unreason that would naturally result from a quarrel or fight should not be confused with the sentiment or excitement in the mind of a person injured or offended to such a degree as to deprive him of his sanity and self-control. The excitement w/c is inherent in all persons who quarrel & come to blows doesnt constitute obfuscation. Moreover, the act producing obfuscation must not be far removed from the commission of the crime by a considerable length of time, during which the accused might have regained his normal equanimity. In this case, 30 minutes intervened between the fight and the killing. Having been actuated more by the spirit of revenge or anger than of a sudden impulse of natural or uncontrollable fury, passion and obfuscation cannot be appreciated. B. To be mitigating, the accuseds state of intoxication should be proved or established by sufficient evidence. It should be such an intoxication that would diminish or impair the exercise of his willpower or the capacity to know the injustice of his act. The accused must then show that (1) at the time of the commission of the criminal act, he has taken such quantity of alcoholic drinks as to blur his reason and deprive him of a certain degree of self-control; and (2) such intoxication is not habitual or subsequent to the plan to commit the felony. The accused merely testified that he joined his friends de Guzman and Soriano in a drinking session, but only for a short time. The fact that he was able to resume his routine work thereafter, belie his claim that he was heavily drunk at the time he attacked the victim. The regularity of Rabanillos alcohol intake could even have increased his tolerance for alcohol to such an extent that he could not easily get drunk. C. For voluntary surrender to be considered, the following requisites must concur: 1. the offender was not actually arrested; 2. he surrendered to a person in authority or to an agent of a person in authority; and 3. his surrender was voluntary A surrender to be voluntary must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities either because (a) he acknowledges his guilt or (b) he wishes to save them the trouble and expense necessarily incurred in his search and capture. In the case, the barangay captain had to go to the house of Rabanillo to take the latter to the police station. The latter did not present himself voluntarily to the former, who is a person in authority pursuant to Art. 152 of the RPC, as amended; neither did he ask the former to fetch him at his house so he could surrender. The fact alone that he did not resist but went peacefully with the baranggay captain does not mean that he voluntarily surrendered. Besides, voluntary surrender presupposes repentance. We agree with the trial court in ruling out treachery. The evidence shows that MORALES was facing towards the direction where RABANILLO came from.[10] He must then have caught sight of the latter, who was approaching him with a samurai in his hands. Considering that a

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fight between them had just taken place. MORALES knew or must have known that he would be the target of RABANILLOs attack. Since he was still about 10 meters[11] away from RABANILLO, he had an opportunity to escape or avoid the assault. Hence, it cannot be said that treachery attended the commission of the crime. However, we are of one mind with the OSG and RABANILLO that evident premeditation was wanting in the commission of the crime. For evident premeditation to be considered, the following elements must be established: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the offender has clung to his determination; and (3) sufficient lapse of time between the determination to commit the crime and the execution thereof of allow the offender time to reflect upon the consequences of his act.[12] The essence of evident premeditation is that the execution of the criminal act is preceded by cool thought and reflection upon the resolution to carry out the criminal intent within a span of time sufficient to arrive a calm judgment.[13] In the present case, there is no showing as to the time RABANILLO decided to commit the crime. Even assuming that it was right after he was escorted to his house that he conceived the idea of killing the victim, evident premeditation cannot be appreciated. Only 30 minutes[14] intervened between that time and the time he went out of his house to attack MORALES. It has been held that the lapse of 30 minutes between the determination to commit a crime and the execution thereof is insufficient for full meditation on the consequences of the act.[15] Additionally, as aptly observed by the OSG, the attending circumstances of the killing and the external acts of the appellant negate the existence of evident premeditation; thus: When accused-appellant rushed out from his house, it was just 5:30 in the afternoon. (TSN, April 11, 1997, p. 10) Following Philippine norm, it would still be daylight or at least there would still be sufficient light to easily see people or happenings. The persons who were previously drinking were just milling around by the road. (TSN, November 7, 1996, p. 21) Accused-appellant did not even wait until Raul Morales was alone; he came out of his house with the samurai parallel to his head and directly went straight to the victim at the time when the latter was conversing with two of his friends. Also, accused-appellant did not even attempt to disguise his intention by camouflaging his weapon. He raised it high for all to see. Cool thought and calm judgment, there was none in this case.[16] Since the qualifying circumstances of treachery and evident premeditation are not present in this case, RABANILLO can be convicted of homicide only. We do not agree with the trial court on its finding of the aggravating circumstance of abuse of superior strength. It appreciated such circumstance because RABANILLO had a bulkier and strong[er] body physique as compared to victims slimmer/thinner body, and despite thereof he armed himself with a samurai bolo. There is abuse of superior strength if, as expressly provided by law, the assailant take advantage of his superior strength. It must then be established that not only did the assailant enjoy superior strength over the victim, but that he took advantage thereof in the commission of the crime. That MORALES was slimmer/thinner while Rabanillo was bulkier and strong[er] was not enough proof that the letter superior strength. There should have been proof that, indeed, RABANILLOs bulkier physique provided him physical strength to that of MORALES. It may further be stressed that a man of slimmer/thinner body need not necessarily be physically weak; he could even be physically stronger than a bulkier person. Moreover, even granting for the sake of argument that RABANILLO was physically stronger than MORALES, the circumstances in this case fail to convince us that RABANILLO took advantage of his superior strength.

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G.R. No. 130654 July 28, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDUARDO BASIN JAVIER, accused-appellant FACTS: Accused Eduardo is husband of victim Florentina. They got married in 1954 and for 47 years of marriage, they had10 children. On June 15, 1996, Consolacion heard her mother saying Your father is going to kill me. Her sister, Alma is weeping and told her that their parents are quarrelling. They went tothe house of their brother Manuel and when they came back they saw their mother dead. And their father has a wounded stomach. He admitted hacking his wife and stabbed himself afterwards. He was brought to the hospital. SPO1 Racho, desk investigator, said that when they went to see the crime scene Manuel told him that Eduardo pleaded guilty and surrendered the bolo. Eduardo said the he havent slept for a month and his mind was completely blank when he killed his wife. Trial Court rejected his claim of insanity and sentenced him to death for parricide. In this appeal, accused-appellant alleged that the trial court erred in imposing the death penalty, considering the presence of two mitigating circumstances of illness of the offender and passion and obfuscation Eduardo does not question the rejection of insanity as his defense but he says he was suffering from lost of sleep for a prolonged period of time. He also has suspicion that his wife is having an illicit relationship, aggravated with his illness, goaded him to commit the crime. ISSUE: WHETHER OR NOT THERE IS A MITIGATING CIRCUMSTANCE OF ILLNESS AND PASSION AND OBFUSCATION RULING: None A. FOR ILLNESS: For the mitigating circumstance of illness of the offender to be appreciated, the law requires the presence of the following requisites: (1) illness must diminish the exercise of the will-power of the offender; and (2) such illness should not deprive the offender of consciousness of his acts. Since accused-appellant has already admitted to the killing, it is incumbent upon him to prove the claimed mitigating circumstance of illness. In this case, however, aside from the testimony of the accused that his mind went blank when he killed his wife due to loss of sleep, no medical finding was presented regarding his mental condition at the time of killing. This Court can hardly rely on the bare allegations of accused-appellant, nor on mere presumptions and conjectures. No clear and convincing evidence was shown that accused-appellant was suffering an illness which diminished his exercise of will-power at the time of the killing. On the other hand, it is clear that accused-appellant was aware of the acts he committed. First, he remembered killing his wife in their bedroom with the use of a bolo, where he mangled her neck twice; he remembered trying to commit suicide, by wounding himself with the same bolo he used in killing his wife; and he remembered being brought to the hospital. Since he remembered the vital circumstances surrounding the ghastly incident, from the time of the killing up to the time he was brought to the hospital, it shows that he was in full control of his mental faculties. This negates his claim that he was suffering from an illness that diminished the exercise of his will-power. On the basis of the foregoing, we cannot appreciate the mitigating circumstance alleged by accused-appellant. The defense failed to show medical evidence and since he remembered the vital circumstances surrounding the ghastly incident, from the time of the killing up to the time he was brought to the hospital, it shows that he was in full control of his mental faculties B. AS FOR PASSION: In order to be entitled to the mitigating circumstance of passion and to obfuscation, the following elements should concur: (1) there should be an act both unlawful and sufficient to produce such condition of mind; and (2) said act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his moral equanimity. Elements were not proven; he even said that he was not jealous of his wife.

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[G.R. Nos. 130665 and 137996-97. April 21, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO BALIAO EMPANTE @ PETER, accused-appellant. FACTS: Herein accused Empante was found guilty by the trial of three counts of rape against his daughter, Elvie Empante, then below 18 years of age. The said offense allegedly transpired in different series of acts and different dates. They happened during the time Elvies mother and siblings are out of the conjugal home. Elvies mother was a domestic helper in other places and would come home only during weekends. Attendant to commission of each of the offense charged, accused would always warned not to tell her mother about the incident or accused would kill both of them. Elvie knew her father to be a violent man. He maltreated her mother and threatened her with a bolo. It was only during the third time of the commission of the offense that the Elvie opened up her situation because her mother was already transferred to Manila for work. Elvie feared that, with her mother gone, her father would make a mistress of her. She went to the house of her grandmother the next morning and told her her story. Her grandmother, Lourdes Intong, lost no time in taking her to the barangay captain who referred them to the police and advised them to take Elvie to the hospital for examination. Accused was indicted of three charges of rape and pleaded not guilty to all of them during arraignment. Accused through counsel asked the court to allow him to change his plea from not guilty to guilty but was denied on the ground that the prosecution had already started presenting its evidence. But upon his insistence, the Court finally granted such change of plea.. The trial continued and accused admitted having raped his daughter, claiming, however, that he was drunk at the time. He denied that he used a hunting knife to threaten his daughter and claimed that he only threatened her verbally. He alleged that he did not have any hunting knife The trial court found the accused guilty. ISSUE: WON THE GUILTY PLEA OF THE ACCUSED EMPANTE AS WELL AS THE DEFENSE OF INTOXICATION MITIGATE HIS LIABILITY RULING: A. GUILTY PLEA Accused entered his plea of guilty freely, voluntarily, and with full understanding of its consequences and should be bound by it. Accused asseverates that his plea of guilty mitigates his liability. The contention has no merit. To be considered a mitigating circumstance, a plea of guilty must be made spontaneously by the accused, in open court, prior to the presentation of evidence for the prosecution. In the cases at bar, accused at first pleaded not guilty and only confessed his guilt after the prosecutions first witness was nearly finished with her testimony. Such a belated act of remorse or contrition cannot be considered spontaneous or timely within the contemplation of the law. B.INTOXICATION The claim of intoxication as a mitigating circumstance cannot be given credence. For even if accused was intoxicated and he is not a habitual drinker, to be considered mitigating, the intoxication must be shown to have so impaired his willpower that he did not know what he was doing or could not comprehend the wrongfulness of his acts. In these cases, not only did complainant deny that her father was drunk when he raped her, but the fact that accused himself could recall details of the rape incidents (i.e., time of the day as regards the November 1994 incident, the manner he raped his daughter, what his daughter was wearing, how he forced and threatened her to submit to his desires) is the best proof that he knew what he was doing on those occasions.

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[G.R. No. 128287. February 2, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RIZAL ESPIRITU y KINAO, accused-appellant. FACTS: Accused in this case are Espiritu, Alicoy and Malicdan who allegedly killed in concerted effort victim Sato Sannad who sustained multiple stab wounds resulting to his death. Accused Espiritu was convicted of murder qualified by treachery by the trial court while his co accused were acquitted for failure of the prosecution to prove their guilt beyond reasonable doubt. The conviction of Espiritu was made based solely of his extra-judicial statement with the police authorities in the presence of his counsel. ISSUE: WON THE EXTRA-JUDICIAL CONFESSION OF THE ACCUSED IS ADMISSIBLE IN EVIDENCE WHICH ENTITLES HIM FOR MITIGATION OF HIS PENALTY RULING: A. ADMISSIBILITY The court is convinced that the confession of Appellant Espiritu is admissible in evidence, as it was satisfactorily shown that it was (1) voluntary and (2) made with the assistance of a competent and independent counsel. With respect to the first requisite, we find that Espiritu readily admitted killing Sanad when he was confronted by the relatives of the deceased. Thereafter, without being invited by the investigating officers, he went to the police station and voluntarily gave his statement to SPO1 Wilfredo P. Cabanayan. Later, appellant affirmed before Prosecutor Romeo Carbonell the fact that he, with Atty. Mangallay, had gone to the police station to surrender and that the said counsel had assisted him when the police started taking his statement. In his confession, appellant admitted that he and Malicdan killed Sanad, after being hired by Alicoy to do so for the sum of P20,000. Aside from describing the details of how he and his cohort killed Sanad, Espiritu, during an ocular inspection, even pointed out the place where the killing had been committed. These acts of the appellant are clear manifestations that, contrary to his protestations, no torture, force, violence, threat, intimidation or any other means was used against him to force him to confess. As a consequence of the confession of the appellant, his conviction becomes inevitable. Such confession is evidence of a high order, since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience. B. MITIGATION OF SENTENCE (VOLUNTARY SURRENDER)

The mitigating circumstance of voluntary surrender is appreciated when the following requisites concur: (1) the offender had not been actually arrested; (2) the offender surrendered himself to a person in authority; and (3) the surrender was voluntary. The foregoing requisites are borne by the records, which show that Espiritu surrendered to the police even in the absence of a warrant for his arrest. Without being invited by the investigating officers, he went to the police station and voluntarily gave his statement.

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[G.R. No. 119942. July 8, 1999] FELIPE E. PEPITO, SINONOR E. PEPITO, and SONNY E. PEPITO, petitioners, vs. THE HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. FACTS: Accused Felipe Pepito(the father) and his sons, fellow accused Sinonor and Sonny were all convicted guilty by the trial court of murder for killing victim Sapa inside the latters house. Allegedly, prior the killing, the victim was drunk and made trouble in the neighborhood. The accuseds wife Estrella Pepito reported the incident to the barangay captain who in turn accompanied the victim to his house but went back to Pepitos house and challenged them. He chased accused Felipe, who was then returning home from the seashore. Felipe ran towards their house. Sapa did not pursue any further. Meanwhile, Sinonor, who was in the kitchen having breakfast, thought that his father had been hurt. He grabbed a bolo, rushed out of the house, and went after victim Sapa, eventually catching up with him on the highway. Sapa hit Sinonor with his indian pana, and struck him with a bolo on the right arm. Somehow, however, Sinonor was able to grab the right arm of the victim, which was holding the bolo, and stab him several times. Sapa tried to flee, but Sinonor pursued him until they reached the formers house. Sapa staggered inside their house, fell on the floor of the kitchen, and died. Felipe, Sonny, and Estrella met Sinonor as he came out, his clothes, hands, and bolo all bloodied. In their conviction, the trial court based its decision on the version of the prosecution witness, victims spouse saying that all the three accused were the one who attacked the victim inside their house while he was sleeping. ISSUES: (A) WON THERE WAS CONSPIRACY AMONG THE THREE ACCUSED IN KILLING THE VICTIM. (B) WON THERE ARE MITIGATING CIRCUMSTANCES OF UNLAWFUL AGGRESSION AND SUFFICIENT PROVOCATION ON THE PART OF THE VICTIM AS WELL AS PASSION AND OBFUSCATION ON THE PART OF ACCUSED SINONOR. RULING: The Court was convinced of the accused allegations. CA decision as to Felipe & Sonny reversed. They are acquitted except accused Sinonor who was found guilty of homicide only. (a) NO CONSPIRACY It appears that the victims body photographs & witnesses testimony that bolo was in victimss right hand belying claim that he was asleep when he was attacked & supporting Pepitos claim that victim died while fighting with accused Sinonor. Victim was found in kitchen & not in living room. This negates claim that he was asleep & bolsters allegation that accused Sinonor finished him off as he retreated to his house. The doctor who examined victim couldnt make a categorical statement re certainty of 19 wounds being inflicted by different weapons. The doctor also claims its possible. There are only suspicions, surmises, & guesses on guilt of accused Felipe & Sonny. They cant be found guilty simply because of these. Guilt must flow naturally from facts proved & must be consistent w/all of them. (b) MITIGATING CIRCUMSTANCE 1. Mitigating circumstance of incomplete defense of relative cant be appreciated in favor of accused Sinonor. Even if based on mistaken belief, such can be appreciated only if act done wouldve been lawful had facts been as accused believed them to be. No more right to attack when unlawful aggression has ceased. In this case, even if the victim killed Felipe, Sinonor cant still claim this mitigating because victim already stopped pursuing about meters away from door of Pepitos residence & turned back to go home. Aggression already ceased to exist. 2. Mitigating circumstance of sufficient provocation/threat on part of offended party immediately preceding act is appreciated. Sufficient provocation exists when there is (a) unjust/improper conduct or act of offended party capable of exciting, inciting or irritating anyone. It is sufficient when (b) it is adequate to excite person to commit a wrong w/c must be proportionate in gravity. And it must immediately precede the act: no interval of time bet provocation by offended party & commission of crime by provoked. Provocation on victims part, challenging Pepitos, armed with bolo & pana and chasing Felipe. Witnesses testified that Sinonor attacked victim shortly after provocation. 3. Mitigating circumstance of passion or obfuscation disregarded since sufficient provocation/threat was already appreciated. *Dwelling as an aggravating circumstance was not appreciated since victim gave provocation. It should be treated as one if based on same facts.

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[G.R. No. 123071. October 28, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JERONICO M. LOBINO alias HAPON", accused-appellant. FACTS: Appellant was convicted for murdering his common-law wife. He contends he would not stab her without any apparent reasons, and that he attacked her because he could no longer stand her going home late at night and her sarcastic remarks whenever her attention was called to what she was doing. He contends he should have been credited with the mitigating circumstance of passion and obfuscation. ISSUE: WON SHOULD HAVE BEEN CREDITED WITH THE MITIGATING CIRCUMSTANCE OF PASSION AND OBFUSCATION. RULING: The Court disagrees. The requisites of passion and obfuscation are: 1. That there be an act, both unlawful and sufficient to produce such a condition of mind; 2. That said act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time during which the perpetrator might recover his normal equanimity. It has been held that there is passional obfuscation when the crime was committed due to an uncontrollable burst of passion provoked by prior unjust or improper acts, or due to a legitimate stimulus so powerful as to overcome reason. The obfuscation must originate from lawful feelings. The turmoil and unreason which naturally result from a quarrel or fight should not be confused with the sentiment or excitement in the mind of a person injured or offended to such a degree as to deprive him of his sanity and self-control, because the cause of this condition of mind must necessarily have preceded the commission of the offense. Here, there is no evidence to support appellants theory that he and the victim quarreled. Julie Lobino, who lived with her parents, testified that she knew of no quarrel or altercation between them. None of the prosecution witnesses testified that a quarrel preceded the attack. Appellant alleges that the victim did not take care of him when he was ill on April 5, 1994, but the said date was far removed from the time appellant committed the crime on April 28, 1994. Such length of time would have been sufficient to enable the appellant to recover his equanimity. Victims lack of concern for a sick husband are not cogent enough to drive anyone to passion or obfuscation and commit the crime at the spur of the moment. Besides being vague and generic, the alleged provocative acts do not even proximately precede the time of the commission of the crime.

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[G.R. No. 99869. May 26, 1999] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO BELARO, defendant-appellant.
FACTS: One evening, victims wife was inside her residence, when someone from outside called Ma and Pa, summoning her attention. Since her husband, the victim was already reclined on the bed momentarily savoring a local drama aired on the radio, Victims wife raced down the stairs to answer the call. When she opened the front door, she was surprised to see the caller as their long-time family acquaintance, appellant Belaro, posing outside the door and armed with the armalite that he usually carries. Appellant appeared to be drunk. Since the armalites nozzle was ominously pointed at the door, Myrna felt an onrush of fear and instinctively shut the door. Thereafter, she raced towards their bedroom and told her husband about appellant. The victim descended to see appellant. However, the moment the front door was opened, victims wife was simply surprised when her deceased husband(victim) tossed to her the child and shoved her aside. Thereafter, a volley of shots from an M-16 rifle rang through the air. The deceased was directly hit as he toppled on the floor. Appellant interposed the defense of alibi. The trial court convicted Belaro of murder. ISSUE: WON THE MITIGATING CIRCUMSTANCES OF DRUNKENNESS AND
ILLITERACY OF THE APPELLANT SHOULD BE CONSIDERED

RULING: The Court affirmed the lower courts decision. The witnesses corroborating appellants alibi cannot outweigh positive identification by the victims widow of appellant as her husbands assailant. The court did not agree to the two alternative circumstances of the appellant to mitigate his liability. Alternative circumstances are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and the other conditions attending its commission. They are the (1)relationship, (2)intoxication, and the (3)degree of instruction and education of the offender. Appellant invokes the last two circumstances in his favor. The ordinary rule is that intoxication may be considered either as aggravating or as mitigating, depending upon the circumstances attending the commission of the crime. Intoxication has the effect of decreasing the penalty, if the intoxication is not habitual or subsequent to the plan to commit the contemplated crime; upon the other hand, when intoxication is habitual or intentional, it is considered as an aggravating circumstance. The person pleading intoxication must present proof that he had taken a quantity of alcoholic beverage, prior to the commission of the crime, sufficient to produce the effect of blurring his reason; and at the same time, he must prove that not only was intoxication not habitual but also that his imbibing the alcoholic drink was not intended to fortify his resolve to commit the crime. Appellant failed to introduce evidence to support the presence of this mitigating circumstance. He cannot be entitled to this mitigating circumstance merely on the declaration of the prosecution witness that appellant was drunk. Even if we consider Myrna Pastors testimony that appellant reeked of alcohol, this does not warrant a conclusion that the degree of intoxication affected his mental faculties. Appellant also did not prove that such intoxication was not habitual or intentional. This he failed to do, for the reason that appellants defense was that of alibi. Neither can appellants alleged lack of instruction be appreciated in his favor. Illiteracy alone will not constitute such circumstance; it must be accompanied by lack of sufficient intelligence and knowledge of the full significance of ones act. In this case, the trial court did not make any findings as to the degree of instruction of appellant. Moreover, lack of instruction should be proved directly and positively; it cannot be based on mere deduction or inference. There is no such proof in this case. On the contrary, appellant, being a CAFGU member, is presumed to have received some degree of instruction and training. Finally, there is jurisprudence holding that the accuseds lack of instruction cannot be considered mitigating in homicide or murder. The reason is that one does not have to be educated or intelligent to be able to know that it is unlawful to take the life of another person even if it is to redress a wrong committed against him.