G.R. No. 211159, March 18, 2015
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MARCELINO OLOVERIO, Accused-Appellant.
D E C I S I O N
Passion and obfuscation as a mitigating circumstance need not be felt only in the seconds before the commission of the crime. It may build up and strengthen over time until it can no longer be repressed and will ultimately motivate the commission of the crime.
This is a review of the Decision1 dated January 29, 2013 of the Court of Appeals which affirmed the conviction of accused-appellant Marcelino Oloverio (Oloverio) of murder and sentenced him to reclusion perpetua and the payment of civil indemnity and damages.
An Information was filed charging Oloverio with the crime of murder.2 The Information reads:
That at around 2:00 o'clock, in the afternoon of October 2, 2003, at Brgy. Belen, Palompon, Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused met the victim, DOLFO GULANE, while the latter was walking on his lonesome, and with treachery, did then and there willfully, unlawfully and feloniously, stab the said victim using a sharp-pointed bolo, which the accused has provided for the purpose, thereby hitting and inflicting mortal wounds on the different parts of the body of the aforesaid victim causing his instantaneous death.
CONTRARY TO LAW.3
Wherefore, as to the proffer of mitigating circumstances of Passion and Obfuscation as defined by Art. 13 of the Revised Penal Code cannot be appreciated, what can be appreciated only is the voluntary surrender which is covered by Art. 13 par. 7 of the Revised Penal Code.
So from the evidence extant from the records, the court finds the accused Marcelino Oloverio, GUILTY of the crime of Murder as the evidence proved the guilt of the accused beyond reasonable doubt that he committed the crime of Murder as defined and penalized under Article 248 of the Revised Penal Code and therefore sentences him to suffer the penalty of Reclusion Perpetua. The voluntary surrender is none availing as reclusion perpetua is not a divisible penalty as defined by the Revised Penal Code.
The accused Marcelino Oloverio is also ordered to pay Fifty Thousand (P50,000.00) Pesos damages to the heirs of Rodulfo Gulane.
WHEREFORE, in view of the foregoing, the appeal is DENIED. The Decision dated January 29, 2010 of the RTC, Branch 17, of Palompon, Leyte in Criminal Case No. P-1163 finding appellant guilty beyond reasonable doubt of the crime of murder is AFFIRMED with the MODIFICATION that with respect to the trial court's award of Php50,000.00 damages, this should be understood to represent the civil indemnity. Appellant is further ordered to pay the heirs of Rodulfo Gulane Php50,000.00 as moral damages, Php25,000.00 as temperate damages, and Php30,000.00 as exemplary damages. All damages shall be subject to interest at the legal rate of 6% per annum from the finality of this Decision until fully paid.
SO ORDERED.21 (Emphasis in the original)
ARTICLE 248. Murder. — Any person who, not falling within the provisions of article 24626 shall kill another, shall be guilty of murder and shall be punished by reclusion temporal in its maximum period to death, if committed with any of the following attendant circumstances:
- With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity.
- In consideration of a price, reward or promise.
- By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin.
- On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone,, epidemic, or any other public calamity.
- With evident premeditation.
- With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.
- That a person was killed.
- That the accused killed him.
- That the killing was attended by any of the qualifying circumstances mentioned in Art. 248.
- The killing is not parricide or infanticide.27
Q: When you saw Rodulfo Gulane walking alone towards Brgy. San Pablo, Palompon, Leyte, do you recall of any untoward incident that took place?
A: Yes, sir, I saw the incident.
Q: What was that incident?
A: Rodulfo Gulane was killed by [a] certain Marcelino Oloverio.
Q: Now, you said that Rodulfo Gulane was killed by Marcelino Oloverio, what was used by Marcelino Oloverio in killing the deceased?
Q: Now, you said that Rodulfo Gulane was killed by Marcelino Oloverio with the use of this bolo, would you describe to this Honorable Court, how and in what way did Marcelino Oloverio killed [sic] Rodulfo Gulane?
A: Yes, while Rodulfo Gulane was walking, Marcelino Oloverio held the right shoulder of Rodulfo Gulane then stabbed him many times and there was strucking [sic] the victim Rodulfo Gulane.29 (Emphasis supplied)
Q: When you reached Brgy. Belen, what have you observed?
A: I observed Lino stabbed Dolpo [sic] Gulane and when Dolfo Gulane fell down, he said "Patay na ang datu sa Brgy. San Pablo."
. . . .
Q: If you can recall, how many times did Marcelino Oloverio stab Rodulfo Gulane?
A: Many times and there was also a hacking blow.30
ARTICLE 14. Aggravating Circumstances. — The following are aggravating circumstances:
. . . .16. That the act be committed with treachery (alevosia).There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof, which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.
(a) the employment of means of execution that gives the person attacked no opportunity to defend himself or retaliate, and (b) the means of execution was deliberately or consciously adopted.33
In People vs. Estrellanes, we declared in no uncertain terms that 'the mere fact that the victim had no weapon with which he could have defended himself is not sufficient to prove the existence of the first element of treachery, for settled is the rule that treachery cannot be presumed; it must be proved by clear and convincing evidence or as conclusively as the killing itself' [sic] Furthermore, there must be some evidence, none of which, however, obtains in the instant case, showing that this mode of assault is deliberately or consciously adopted to insure the execution of the crime without risk to the offender. Accordingly, if the attack was not preconceived and deliberately adopted but was just triggered by the sudden infuriation on the part of the accused because of the provocation on the part of the victim, then no treachery attended the commission of the crime. The essence of treachery is the sudden and unexpected attack without the slightest provocation on the part of the person being attacked[.]35 (Emphasis supplied)
Q: You said Rodulfo Gulane [,] before the stabbing, was heading towards Brgy. San Pablo, while he was walking where was the accused positioned himself? [sic]
A: He was following the victim and then he tapped the right shoulder and stabbed him.
. . . .
Pros. Macapugas: Mr. Witness, during the stabbing incident, did you know whether or not the victim in this case was able to retaliate?
A: No ma'am, he was not able to retaliate.36 (Emphasis supplied)
As a rule, a sudden attack by the assailant, whether frontally or from behind, is treachery if such mode of attack was coolly and deliberately adopted by him with the purpose of depriving the victim of a chance to either fight or retreat. The rule does not apply, however, where the attack was not preconceived and deliberately adopted but was just triggered by the sudden infuriation on the part of the accused because of the provocative act of the victim.40 (Emphasis supplied)
ARTICLE 249. Homicide. — Any person who, not falling within the provisions of article 246 shall kill another without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and be punished by reclusion temporal.
- that there be an act, both unlawful and sufficient to produce such condition of mind; and
- 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.43
It has been held that "[T]here 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."
Moreover, "the act producing the obfuscation must not be far removed from the commission of the crime by a considerable length of time, during which the accused might have recovered his normal equanimity."45 (Emphasis supplied)
The last point to consider is whether the mitigating circumstance of passion or obfuscation ought to have been appreciated in favor of appellant. What was done to him on that fateful day of November 16, 1968 when he was subjected to treatment offensive to his dignity, having been slapped and asked to kneel down in the attitude of a supplicant, certainly could give rise to the feeling of passion or obfuscation. There is a host of cases from United States v. Ferrer, a 1901 decision, to People v. Pareja, decided in 1969, that so attests. Conduct of that character, in the language of United States v. Salandanan, would ordinarily be expected to have produced "such powerful excitement as to overcome reason and self-control." Unfortunately for appellant, however, this mitigating circumstance cannot be invoked because the killing took place one month and five days later. The language of Justice Malcolm in United States v. Sarikala is relevant: "As to the mitigating circumstance of passion and obfuscation we likewise cannot agree that it can be taken into consideration because more than twenty-four hours elapsed after the insults of Cotton to the accused and the criminal act." In the relatively recent case of People v. Constantino, such a plea was likewise rejected. There the killing took place after four days. As pointed out by Justice Romualdez in People v. Alanguilang: "In order that the circumstance of obfuscation can be considered, it is necessary to establish the existence of an act both unlawful and sufficient to produce such a condition of mind; and 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." Reference may also be made to People v. Dagatan, where this Court could not consider the presence of this mitigating circumstance as the act that caused the resentment "took place long before the commission of the crime." People v. Gervacio had another way of putting it, "a time not far removed from the commission of the crime." The lower court, therefore, did not commit any error in refusing to credit appellant with the mitigating circumstance of passion and obfuscation.47 (Emphasis supplied, citations omitted)
Suarez and Magalong testified that before the hacking incident, MORALES reprimanded RABANILLO in front of their drinking mates for dousing him with water, whicn entered into his ear. RABANILLO resented it and felt humiliated. Hence, a fistfight ensued, but was eventually broken up. The event must have continued to dominate RABANILLO's thought that he decided to strike back at the victim by hacking him to death. Clearly, the assault was made in a fit of anger.
For passion and obfuscation to be mitigating, the same must originate from lawful feelings. The turmoil and unreason that 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 which is inherent in all persons who quarrel and come to blows does not 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. Thus, it has been held that where at least half'an hour elapsed between the previous fight and the killing, the accused cannot be given the benefit of the attenuating circumstance ofobfiscation.
In this case, 30 minutes intervened between the fistfight and the killing of MORALES by RABANILLO. The attack cannot, therefore, be said to be the result of a sudden impulse of natural and uncontrollable fury. Having been actuated more by the spirit of revenge or by anger and resentment for having been publicly berated by MORALES, RABANILLO cannot be credited with the extenuating circumstance of passion and obfuscation.49 (Emphasis supplied)
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.51
Even assuming, however, that he really killed Ramirez because of passion or obfuscation in order to avenge the wrong done to his wife by the victim, still he cannot be credited with this circumstance as he would then have acted "in the spirit of revenge." Furthermore, although accused-appellant's wife was allegedly raped by Ramirez on November 17, 1994, the stabbing incident in question took place three days later or on November 20, 1994. Thus, the act which was supposed to have caused passion or obfuscation on the part of the accused-appellant was so far removed from the date of the stabbing. In United States v. Sarikala, the Court ruled that the lapse of more than 24 hours, reckoned from the commission of the act which produced the passion or obfuscation up to the time of the commission of the felony, constituted a considerable period of time after which such circumstance would no longer be deemed present.53 (Emphasis supplied)
[t]he act of the victim in berating and humiliating appellant was enough to produce passion and obfuscation, considering that the incident happened in a market place within full view and within hearing distance of many people.55
In the case at bench, the assault came in the course of an altercation and after appellant had sharpened his bolo in full view of the victim. Appellant's act of sharpening his bolo can be interpreted as an attempt to frighten the victim so the latter would leave him alone. It was simply foolhardy for the victim to continue walking to and fro near appellant in a taunting manner while the latter was sharpening his bolo.56
Q: Do you remember if there was any altercation that took place between the accused and the victim in this case before the incident?
A: I have not heard any argument from both of them and he stabbed Rodulfo Gulane and Rodulfo Gulane uttered the words in a vernacular, "Man luba kaman Ling."58
Q: Before the stabbing incident, have you noticed if there was an altercation between Rodulfo Gulane and Marcelino Oloverio?
A: No, sir.59
Q: Now, before the actual stabbing of the victim in this case, you said there was no altercation between the accused and Rodulfo Gulane, now, if you can recall[,] if there was any incident that took place immediately before the stabbing incident?
A: I cannot say any but what I only say is that I only saw the incident.60 (Emphasis supplied)
ARTICLE 64. Rules for the Application of Penalties Which Contain Three Periods. — In cases in which the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, each one of which forms a period in accordance with the provisions of articles 76 and 77, the courts shall observe for the application of the penalty the following rules, according to whether there are or are not mitigating or aggravating circumstances:
5. When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances.
"ART. 29. Period of preventive imprisonment deducted from term of imprisonment. - Offenders or. accused who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of deprivation of liberty, with the full time during which they have undergone preventive imprisonment if the detention prisoner agrees voluntarily in writing after being informed of the effects thereof and with the assistance of counsel to abide by the same disciplinary rules imposed upon convicted prisoners, except in the following cases:"1. When they are recidivists, or have been convicted previously twice or more times of any crime; and
"2. When upon being summoned for the-execution of their sentence they have failed to surrender voluntarily.
"If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners, he shall do so in writing with the assistance of a counsel and shall be credited in the service of his sentence with four-fifths of the time during which he has undergone preventive imprisonment[.]"66
* Designated as acting member per S.O. No. 1951 dated March 18, 2015.
1Rollo, pp. 3-14. The Decision, docketed as CA-G.R. No. CEB-CR HC No. 01175, was penned by Associate Justice Ramon Paul L. Hernando and concurred in by Associate Justices Carmelita Salandanan-Manahan and Maria Elisa Sempio-Diy of the Twentieth Division, Court of Appeals Cebu.
2 Id. at 4.
6 Id. at 4-5.
7 Id. at 5.
8 Id. at 5.
9 Id. at 6.
11 CA rollo, pp. 45-48.
12 Id. at 47-48.
13 Id. at 48.
14 Id. at 8.
15Rollo, pp. 3-14.
16 Id. at 11.
17 Id. at 11-12.
18 Id. at 11.
19 Id. at 12.
20 Id. at 12-13.
21 Id. at 13.
22 CA rollo, p. 92.
23 Id. at 119.
24Rollo, p. 20.
25 Id. at 21-23 and 26-27.
26 REVISED PENAL CODE. ARTICLE 246. Parricide. — Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by he penalty of reclusion perpetua to death.
27People v. De la Cruz, 626 Phil. 631, 639 (2010) [Per J. Velasco, Third Division], citing L.B. REYES, THE REVISED PENAL CODE CRIMINAL LAW 469 (16th ed., 2006).
28Cirera v. People, G.R. No. 181843, July 14, 2014
[Per J. Leonen, Third Division], citing Palaganas v. People, 533 Phil. 169, 193 (2006) [Per J. Chico-Nazario, First Division] and People v. Pagador, 409 Phil. 338, 351-352 (2001) [Per J. Bellosillo, En Banc].
29Rollo, p. 9.
30 Id. at 9-10.
31 Id. at 10.
32 CA rollo, p. 36.
33People v. Lobino, 375 Phil. 1065, 1076 (1999) [Per J. Purisima, En Banc], citing People vs. Valles, 334 Phil. 763 (1997) [Per J. Torres, Second Division].
34 375 Phil. 1065 (1999) [Per J. Purisima, En Banc].
35 Id., citing People vs. Valles, 334 Phil. 763 (1997) [Per J. Torres, Second Division], in turn citing People v. Estrellanes, G.R. No. 111003, December 15, 1994, 267 SCRA 103, 114-115 [Per J. Davide, Jr., First Division].
36Rollo, p. 10.
37 See Cirera v. People, G.R. No. 181843, July 14, 2014
[Per J. Leonen, Third Division], citing People v. Sabanal, 254 Phil. 433, 436 (1989) [Per J. Cruz, First Division], People v. Ayupan, 427 Phil. 200, 219 (2002) [Per J. Panganiban, Third Division], and People v. Templo, 400 Phil. 471,493 (2000) [Per J. De Leon, Jr., Second Division].
38Rollo, p. 10.
39 312 Phil. 775 (1995) [Per J. Quiason, First Division].
40 Id. at 780-781, citing People v. Aguiluz, G.R. No. 91662. March 11, 1992, 207 SCRA 187 [Per J. Regalado, Second Division].
41Rollo, p. 5.
42 REV. PEN. CODE, art. 13. Mitigating Circumstances. —The following are mitigating circumstances:
. . . .
6. That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation.
43People v. Lobino, 375 Phil. 1065, 1074 (1999) [Per J. Purisima, En Banc], citing I L. B. REYES, Revised Penal Code 272 (14th ed, 1998).
44 375 Phil. 1065 (1999) [Per J. Purisima, En Banc].
45 Id. at 1074-1075, citing People v. Valles, G.R. No. 110564, January 28, 1997, 267 SCRA 103, 116 [Per J. Torres, Second Division], People v. Bautista, 325 Phil. 83 (1996) [Per J. Bellosillo, First Division], and I L.B. Reyes, Revised Penal Code 274 (14th ed., 1998).
46 162 Phil. 657 (1976) [Per Acting C.J. Fernando. Second Division].
47 Id. at 666-668, citing U.S. v. Ferrer, 1 Phil. 56 (1901) [Per J. Mapa, En Banc], People v. Pareja, 141 Phil. 379 (1969) [Per Curiam, En Banc], U.S. v. Salandanan, 1 Phil. 464 (1902) [Per J. Mapa, En Banc], U.S. v. Sarikala, 37 Phil. 486 (1918) [Per J. Malcolm, En Banc], People v. Constantino, 127 Phil. 381 (1967) [Per J. Bengzon, J.P., En Banc], People v. Alanguilang, 52 Phil. 663 (1929) [Per J. Romualdez, En Banc], People v. Dagatan, 106 Phil. 88 (1959) [Per J. Endencia, En Banc], and People v. Gervacio, 133 Phil. 805 (1968) [Per Curiam, En Banc].
48 367 Phil. 114 (1999) [Per C.J. Davide, En Banc].
49 Id. at 126-127, citing People v. Bautista, 325 Phil. 83 (1996) [Per J. Bellosillo, First Division], People v. Cruz, 53 Phil. 635 (1929) [Per J. Romualdez, En Banc], People v. Giner, 6 Phil. 406 (1906) [Per J. Torres, En Banc], U.S. v. Herrera, 13 Phil. 583, 585 (1909) [Per C.J. Arellano, En Banc], People v. Layson, 140 Phil. 491 (1969) [Per Curiam, En Banc], and People v. Matbagon, 60 Phil. 887, 890 (1934) [Per J. Vickers, En Banc].
50 325 Phil. 83 (1996) [J. Bellosillo, First Division].
51 Id. at 93, citing People v. Giner, 6 Phil. 406 (1906) [Per J. Torres, En Banc].
52 399 Phil. 743 (2000) [Per J. Mendoza, Second Division].
53 Id., citing U.S. v. Sarikala, 37 Phil. 486 (1918) [Per J. Malcolm, En Banc].
54 312 Phil. 775 (1995) [Per J. Quiason, First Division].
55 Id. at 781.
57Rollo, p. 5 and CA rollo, p. 42.
58Rollo at 9.
59 Id. at 10.
60 Id. at 9.
61 Id. at 5-6.
62 CA rollo, p. 46.
63Rollo, p. 12 and CA rollo, p. 48.
64 The duration of prision correcional is six (6) months and one (1) day to six (6) years.
65 The duration of prision mayor is six (6) years and one (1) day to twelve (12) years.
66 REV. PEN. CODE, art. 29, as amended by Rep. Act No. 10592 (2012).
67 CA rollo, p. 97.
68Rollo, p. 35.
69 See Heirs of Castro v. Bustos, 136 Phil. 553 (1969) [Per J. Barredo, En Bane].
70 See Guevara v. People, G.R. No. 170462, February 5, 2014, 715 SCRA 384 [Per J. Brion, Second Division], Almojuela v. People, G.R. No. 183202, June 2, 2014,
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2014/june2014/183202.pdf> [Per J. Brion, Second Division], and Dela Cruz v. People, G.R. No. 189405, November 19, 2014
[Per J. Peralta, Third Division].
71See Guevara v. People, G.R. No. 170462, February 5, 2014, 715 SCRA 384 [Per J. Brion, Second Division].
72 CIVIL CODE. art. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party.
73See Heirs of Castro v. Bustos, 136 Phil. 553 (1969) [Per J. Barredo, En Banc].