LIBBAR RESTAURANTE

Miranda used to run errands for Pugay. On May 19, 1982, a town fiesta fair was held in the public plaza of Rosario, Cavite. There were different kinds of ride and one was a ferris wheel. Sometime after, Gabion was sitting in the ferris wheel and reading a comic book with his friend Henry. Later, Pugay and Samson with several companions arrived. These persons appeared to be drunk as they were all happy and noisy. As the group saw the deceased walking nearby, they started making fun of him. They made the deceased dance by tickling him with a piece of wood.Not content with what they were doing,Pugay suddenly took a can of gasoline from under the engine of the ferris wheel and poured its contents on the body of the former. Gabion told Pugay not to do so while latter was already in the process of pouring the gasoline. Then, the accused Samson set Miranda on fire making a human torch out of him.

HELD: As no sufficient evidence appears in the record establishing any qualifying circumstances, the accused Samson is only guilty of the crime of homicide defined and penalized in Article 249 of the Revised Penal Code, as amended. We are disposed to credit in his favor the ordinary

mitigating circumstance of no intention to commit so grave a wrong as that committed as there is evidence of a fact from which such conclusion can be drawn. The eyewitness Gabion testified that the accused Pugay and Samson were stunned when they noticed the deceased burning. The proper penalty that the accused Samson must suffer is an indeterminate one ranging from eight (8) years of prision mayor as minimum, to fourteen (14) years of reclusion temporal as maximum.

Accordingly, the judgment is affirmed with the modifications.

NO INTENTION TO COMMIT SO GRAVE A WRONG PEOPLE v GONZALES 359 SCRA 352

FACTS: On Oct 31, 1998 , Inocencio Gonzalez‘ and Noel Andres‘ vehicle almost collided in

Loyola Memorial Park. Noel was able to timely step on the brakes. Gonzales continued driving while Noel drove behind the appellant‘s vehicle for some time and cut him off when he found the opportunity to do so. Noel got out of his vehicle and knocked on the appellant‘s car window. This is as far as their versions of the incident coincide.

The prosecution‘s version of the incident is that Noel Andres calmly told the appellant to be careful with his driving and informed him that he is with his family and to this Gonzalez allegedly

replied, ―Accidents are accidents, what‘s your problem.‖ Andres stated that he saw the appellant turning red in anger so he decided to go back to his vehicle when he was blocked by the appellant‘s son who said, ―Anong problema mo sa erpat ko.‖ Andres testified that he felt threatened and so he immediately boarded his vehicle, sat at the driver‘s seat, closed the door, and partially opened the car window just wide enough to talk back to appellant‘s son, Dino. Suddenly, one of his passengers said ―Binaril kami‖. He turned to his wife Feliber Andres and saw her bloodied and unconscious. Kenneth and Kevin were also wounded. Andres admitted in court that he and Dino were shouting at each other so that he did not hear the shot.

The defense‘s version of the incident is Andresgot out of his vehicle, stood beside the appellant‘s car window, and repeatedly cursed the appellant, ―Putang ina mo, ang tanda-tanda mo na hindi ka pa marunong magmaneho. Ang bobo-bobo mo.‖ The appellant stayed inside his car and allegedly replied, ―Pasensiya ka na hindi kita nakita, nasilaw ako. Aksidente lang.‖ When Dino arrived at the scene he confronted Andres and the two had an altercation. Both Dino and the appellant stated that Andres remained outside his vehicle during the altercation with Dino. When Andres suddenly reached for something inside his vehicle, Dino froze on the spot where he stood. This prompted the appellant to get his gun from the glove compartment and feeling that his son was threatened he got out of his car ready to shoot. When he saw that Andres did not have a weapon he put down his hand holding the gun. This is when the appellant‘s daughter Trisha who was riding in Dino‘s car arrived at the sceneand pushed the appellant away. She hugged her father and in the process held his hand holding the gun. The appellant tried to free his hand and with Trisha‘s substantial body weight pushing against him the appellant lost his balance and the gun accidentally fired. Gonzales stated that he did not know he shot somebody until the complainant‘s sister-in-law, got out of the vehicle carrying a bloodied small boy.

HELD: Gonzales is found guilty of homicide for the death of Feliber and for each count of the slight physical injuries committed against Kenneth Andres and Kevin Valdez.

The mitigating circumstances of voluntary surrender, passion and obfuscation, incomplete defense of a relative and lack of intent to commit so grave a wrong, pleaded by the defense, were not convincingly proved and none can be considered in the imposition of penalties.

The mitigating circumstance of passion and obfuscation is also not obtaining. Noel‘s act of shouting at the appellant‘s son, who was then a nurse and of legal age, is not sufficient to produce passion and obfuscation as it is claimed by the accused. Besides, the appellant‘s son, Dino was shouting back at Noel Andres. It was not a case wherein the appellant‘s son appeared helpless and oppressed that the appellant lost his reason and shot at the FX of Noel. The same holds true for the appellant‘s claim of provocation on the part of Noel Andres. Provocation must be sufficient to excite a person to commit the wrong committed and that the provocation must be commensurate to the crime committed. The sufficiency of provocation varies according to the circumstances of the case. The aggressive behavior of Noel towards the appellant and his son may be demeaning or humiliating but it is not sufficient provocation to shoot at the complainant‘s vehicle.

The plea for the appreciation of the mitigating circumstance of incomplete defense of a relative is also unmeritorious since the act of Andres in cursing and shouting at the appellant and his son do not amount to an unlawful aggression against them, Dino Gonzalez. Finally, the plea for the appreciation of the mitigating circumstance of lack of intent to commit so grave a wrong is likewise devoid of merit. This mitigating circumstance is obtaining when there is a notable disparity between the means employed by the accused to commit a wrong and the resulting crime committed. The intention of the accused at the time of the commission of the crime is manifested from the weapon used, the mode of attack employed and the injury sustained by the victim. Gonzalez‘ use of a gun, although not deliberately sought nor employed in the shooting, should have reasonably placed the appellant on guard of the possible consequences of his act. The use of a gun is sufficient to produce the resulting crimes committed.

NO INTENTION TO COMMIT SO GRAVE A WRONG PEOPLE v CANETE 410 SCRA 544 FACTS:On May 24, 1997, Leonaldo Tumayao, Joel Quimod and Lilio Tundag were on their way home after attending a wedding party. Tumayao was walking ahead of Tundag and Quimod. As they passed by the houses of the accused, Quimod and Tundag heard successive gunshots. Quimod and Tundag immediately looked in the direction where the bursts of gunfire were coming from and saw Ruben, Alfredo, Sergio, Sotero and Trinidad Canete shooting at Tumayao who

slumped to the ground. Apparently not satisfied, all the accused approached the fallen Tumayao and continued shooting him. On order of his father Sotero, Alfredo shot Tumayao in the head.Quimod, who was 10 meters behind the victim, ran and hid behind the bushes. As soon as the accused left, Quimod went home and narrated the incident to Tumayao‘s wife.On the other hand, Tundag, who was behind Tumayao, saw Ruben fire his gun at the victim. Tundag attempted to come to the aid of Tumayao but the latter shouted at him to flee. Thus, he ran back to the wedding party while hearing more gunshots. At the wedding party, Tundag informed the people about the ambush. Thereafter, he went back to the crime scene where he saw Tumayao‘s lifeless body on the road.

CONTENTION OF THE ACCUSED: On May 23, 1997, Ruben‘s wife, Teresita, was in Lanipga,

Consolacion, Cebu, to help prepare food for the wedding of her husband‘s cousin. She stayed there overnight. At the wedding reception the following morning, Leonaldo Tumayao, alias Eduardo or Edit, approached Ruben who was then looking for a cold soft drink. Tumayao said ―Here is something cold,‖ and suddenly punched Ruben. Teresita summoned her husband and asked him to go home with her. The latter acquiesced. Before they left, however, Teresita saw Tundag give Tumayao what looked like a .45 caliber pistol.Seconds later, Tumayao, together with Quimod, Tundag and the latter‘s son followed Ruben to his house on a motorcycle or habal- habal. Tumayao alighted and thereafter shouted ―This is now a combat‖ while firing a gun.Hearing the gunshots, Teresita brought her children to the safety of a neighbor‘s house. As she went back for her other child, Teresita saw her husband Ruben standing beside a coconut tree. Tumayao stood in front of the house of Alfredo who was shouting at him not to throw stones as he might hit the children. At that point, Ruben shot Tumayao with a pugakhang, an improvised shotgun. Tumayao slumped to the ground.

HELD: Trinidad Cañete and Alfredo Cañete are found guilty of murder and sentenced to reclusion perpetua.

The mitigating circumstance of voluntary surrender should be appreciated in favor of Alfredo and the mitigating circumstance of immediate vindication of a grave offense conceded in favor of all the appellants. Saving the authorities the trouble and expense for his search and capture, and freely placing himself at their disposal, Alfredo should be given the favor of a mitigated penalty for his voluntary surrender. The mitigating circumstance of voluntary surrender, being personal however, can only be appreciated in favor of appellant Alfredo.

It must be recalled that, immediately prior to the incident, Tumayao punched Ruben in the presence of many people at the wedding party. Although the incident did not immediately precede the killing, its impact, by reason of its seriousness and the circumstances under which it was inflicted, festered till the commission of the crime. The mitigating circumstance of immediate vindication of a grave offense must, therefore, be appreciated in favor of the appellants.

All told, we are convinced that appellants Alfredo and Trinidad are guilty beyond reasonable doubt of murder which carries the penalty of reclusion perpetua to death. Since the mitigating circumstances of voluntary surrender and immediate vindication of a grave offense were present in this case, the lesser penalty of reclusion perpetua was properly imposed by the trial court.

SUFFICIENT PROVOCATION OR THREAT PEOPLE v PAGAL [79 SCRA 570 (1977)] FACTS: That on Dec 26, 1969, in the City of Manila, PEDRO PAGAL and JOSE TORCELINO took away from the ; Gau Guan, cash amounting to P1,281.00; that on the occasion of the said robbery and for the purpose of enabling them to take, steal and carry away the said amount, the accused, stabbed him with an ice pick and clubbing him with an iron pipe on different parts of his body, thereby inflicting upon him mortal wounds which were the direct and immediate cause of Gau Guan death . The generic aggravating circumstances of (1) night time purposely sought to better accomplish their criminal design; (2) evident premeditation; (3) in disregard of the respect due the offended party; and (4) with abuse of confidence, the accused being then employees of the offended party.

The counsel for the accused informed said court of their intention to enter a plea of guilty provided that they be allowed afterwards to prove the mitigating circumstances of sufficient provocation or threat on the part of the offended party immediately preceding the act, and that of having acted upon an impulse so powerful as to produce passion and obfuscation.

HELD: Pedro Pagal and Jose Torcelino are found guilty of beyond reasonable doubt as principals of the crime of robbery with homicide.

The appellants assail the trial court in not appreciating in their favor the mitigating circumstances of sufficient provocation, and passion or obfuscation. Their contention is devoid of merit. Firstly, since the alleged provocation which caused the obfuscation of the appellants arose from the same incident, that is, the alleged maltreatment and/or ill treatment of the appellants by the deceased, these two mitigating circumstances cannot be considered as two distinct and separate circumstances but should be treated as one. Secondly, the circumstance of passion and obfuscation cannot be mitigating in a crime which — as in the case at bar — is planned and calmly meditated before its execution. Thus, this Court rejected the claim of the appellants that passion and obfuscation should have been estimated in their favor, because the death of the victim took place on the occasion of a robbery, which, before its execution, had been planned and calmly meditated by the appellants. Thirdly, the maltreatment that appellants claim the victim to have committed against them occurred much earlier than the date of the commission of the crime. Provocation in order to be a mitigating circumstance must be sufficient and immediately preceding the act. We hold that the trial court did not commit any error in not appreciating the said mitigating circumstances in favor of the appellants. Finally, the appellants claim that the trial court erred in considering the aggravating circumstances of night time, evident premeditation, and disregard of the respect due the offended party on account of his rank and age.

Although the trial court correctly considered the aggravating circumstance of nocturnity because the same was purposely and deliberately sought by the appellants to facilitate the commission of the crime, nevertheless, We disagree with its conclusion that evident premeditation and disregard of the respect due the offended party were present in the commission of the crime. Evident premeditation is inherent in the crime of robbery. However, in the crime of robbery with homicide, if there is evident premeditation to kill besides stealing, it is considered as an aggravating circumstance. In other words, evident premeditation will only be aggravating in a complex crime of robbery with homicide if it is proved that the plan is not only to rob, but also to kill. In the case at bar, a perusal of the written statements of the appellants before the police investigators show that then original plan was only to rob, and that, they killed the deceased only when the latter refused to open the "kaha de yero", and fought with them. The trial court erred in taking into consideration the aggravating circumstance of evident premeditation.

The aggravating circumstance that the crime was committed with insult or in disregard of the respect due the offended party on account of his rank, age or sex may be taken into account only in crimes against persons or honor, when in the commission of the crime there is some insult or disrespect shown to rank, age, or sex. It is not proper to consider this aggravating circumstance in crimes against property. Robbery with homicide is primarily a crime against property and not against persons. Homicide is a mere incident of the robbery, the latter being the main purpose and object of the criminal. The trial court erred in taking into account this aggravating circumstance.

SUFFICIENT PROVOCATION OR THREAT US v MALABANAN Phil. 262 FACTS: Shortly before 6 AM on Nov 8, 1906, Felino Malaran, a prisoner and assistant jailer, reported to the foreman Pedro Pimentel that Esteban Malabanan had taken some bread out of a tin can that was in the jail; Malabanan being resentful at this and also because he had received a severe blow with a cane from the said assistant jailer, attacked the latter after breakfast with a small knife, and wounded him in the chest, the right arm, and in the back. Raymundo Enriquez, another assistant jailer, upon seeing what was taking place, tried to separate them and prevent the accused from further attacking Malaran, but he did so with such bad luck that he also was wounded with the knife in the right side near the abdomen, and in consequence of said wound Raymundo Enriquez died of peritonitis and hemorrhage of the spleen eleven days thereafter. Quintin de Lemos, another assistant jailer, who also tried to stop Malabanan, was wounded in the

chin. Foreman Paulino Canlas, upon becoming aware of what was going on, ordered the opening of the door of the department where detachment No. 6 of the prisoners was confined, and Malabanan upon seeing him come in tried to attack him; thereupon Canlas took hold of a stick to defend himself and to take away from Malabanan the knife he held, which, like the hand and the clothes of the accused, was covered with blood. As soon as the accused was disarmed Canlas blew his whistle to call the inspector, who on his arrival at the place where the fight had taken place ordered the three wounded men to the hospital and the aggressor locked up in the cell. It was ascertained from the accused that the knife had been found by him among the bamboo kept within the department of the detachment, and it was recognized by him when the same was exhibited.

Dr. Edwin C. Shattuck, the prison surgeon, in a sworn declaration, stated that Raymundo Enriquez died eleven days after entering the hospital in consequence of a dagger wound received in the left side and abdominal cavity, affecting the spleen, death being the result of subsequent peritonitis and hemorrhage. Felino Malaran had eight wounds, the most serious of which were on his left shoulder, left wrist, breast, and right hip. Quintin de Lemos had only a wound in the chin. HELD: The facts stated above, duly proven by the testimony of eyewitnesses, constitute the crime of homicide, defined and punished by article 404 of the Penal Code, no qualifying circumstance being present in the fact that the accused inflicted on the assistant jailer Raymundo Enriquez a serious wound in the right side near the abdomen from which he died a few days later, to determine that a more serious classification should be made of the crime, and a heavier