THIRD DIVISION
PEOPLE OF THE
PHILIPPINES,
Appellee,
G.R.
No.
137782
April 1, 2003 -versus-
ARTURO NICOLAS Y
RINGOR,
Appellant.
D E C I S I O N
CARPIO-MORALES,
J.:chanroblesvirtuallawlibrary
This is an appeal from
the decision[1]
of the Regional Trial Court, Branch 66, Makati City, finding appellant
Arturo Nicolas y Ringor guilty beyond reasonable doubt of murder for
the
killing of Delbie Bermejo (the victim) and sentencing him to suffer the
penalty of reclusion perpetua and to pay the heirs of the victim the
amount
of P127,500.00 as liquidated damages and P50,000.00 as moral damages.chanrobles virtuallaw libraryred
In an Information[2]
dated January 5, 1998, appellant was indicted as follows:chanrobles virtuallaw libraryred
That on or about the
1st day of January, 1998, in the City of Makati, Philippines, a place
within
the jurisdiction of this Honorable Court, the above-named accused,
armed
with a gun, with intent to kill and by means of treachery, did then and
there willfully, unlawfully and feloniously shoot one DELBIE BERMEJO y
VELASCO hitting him on his neck and breast, thereby inflicting serious
and mortal wounds upon the latter which directly caused his death.chanrobles virtuallaw libraryred
CONTRARY TO LAW.cralaw:red
Upon arraignment[3]
on February 5, 1998, appellant, assisted by counsel, entered a plea of
not guilty. Thereafter, trial on the merits ensued.chanrobles virtuallaw libraryred
Culled from the records
of the case are the following facts established by the prosecution:chanrobles virtuallaw libraryred
On January 1, 1998,
at about 1:30 a.m., the victim, his two children Ruby and Rodel and
nephew
Ariel Bermejo were walking along a small alley in Makati City after
attending
a New Year’s party at a relative’s house. Behind them was
appellant
Arturo Nicolas, a dismissed Army Sergeant, who greeted the victim[4]
and his nephew Ariel.[5]
The victim, in turn, greeted appellant.[6]
Suddenly, a gunshot was heard by the victim’s companions and on turning
around to see what had happened, they saw him falling to the ground as
appellant was pointing a gun at him.[7]
Terrified at what she saw, Ruby ran and went home to engage the help of
others to aid her in bringing her father to the hospital.[8]
In the meantime, as Ariel remained where he was, he saw appellant shoot
the victim, prompting him to run and report the incident to a relative,
Ernesto Suante.[9]chanrobles virtuallaw libraryred
The victim was brought
to the Makati Medical Center where he was pronounced dead on arrival.[10]chanrobles virtuallaw libraryred
The postmortem examination
conducted by Dr. Tomas Suguitan of the Philippine National Police Crime
Laboratory, Medico Legal Division, in Camp Crame, Quezon City showed
that
the victim sustained two gunshot wounds, one at the left side of his
nape
and the other at the left side of his chest.[11]
It also showed that he had four abrasions on his knees, forehead and
shoulder,[12]
which Dr. Suguitan surmised were caused by the victim’s fall when he
was
shot.[13]
The doctor concluded that the cause of the victim’s death was
hemorrhage
as a result of gunshot wounds of his neck and trunk.[14]chanrobles virtuallaw libraryred
Finding for the prosecution,
the trial court found appellant guilty beyond reasonable doubt of
murder
by Decision of February 10, 1999, the dispositive portion of which is
quoted
verbatim:chanrobles virtuallaw libraryred
IN VIEW OF THE FOREGOING,
judgment is hereby rendered finding accused Arturo Nicolas y Ringor
guilty
beyond reasonable doubt of the crime of murder with the qualifying
circumstance
of treachery and the Court hereby sentences him to suffer, taking into
consideration the absence of aggravating and mitigating circumstance,
the
penalty of reclusion perpetua and to pay the heirs of Delbie Bermejo
the
sum of P50,000.00 as moral damages and the sum of P127,500.00 as
liquidated
damages.chanrobles virtuallaw libraryred
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SO ORDERED.[15]
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Hence, the present
appeal anchored on the following assigned errors:chanrobles virtuallaw libraryred
A. THE TRIAL COURT ERRED
IN FINDING THAT THE ACCUSED IS NOT ENTITLED TO AN ACQUITTAL BASED ON
THE
FOLLOWING GROUNDS:
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1. NO
MOTIVE
FOR THE KILLING WAS ESTABLISHED;chanrobles virtuallaw libraryred
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2. THE GUN WHERE THE
BULLETS WERE FIRED WAS NOT RECOVERED NOR PRESENTED;chanrobles virtuallaw libraryred
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3. THE BALLISTIC
REPORT
ON THE THIRD SNUG (sic) ALLEGEDLY SURRENDERED BY THE ACCUSED WAS NOT
PRESENTED;chanrobles virtuallaw libraryred
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4. THE RESULT OF THE
PARAFFIN TEST CONDUCTED ON THE ACCUSED WAS NOT PRESENTED.chanrobles virtuallaw libraryred
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B. THE TRIAL COURT
ERRED IN FINDING THAT ACCUSED WAS GUILTY BEYOND REASONABLE DOUBT.[16]chanrobles virtuallaw libraryred
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Appellant argues that
as the prosecution failed to establish any motive for the killing of
the
victim with whom he was not acquainted, he had no reason for killing
him.
He also argues that the failure of the prosecution to present any
witness
who could testify that he owned a .9 mm pistol, the type of firearm
from
which the slugs recovered from the crime scene were fired, infirms the
evidence against him as does the failure to recover or present to the
court
the gun used in the perpetration of the crime.chanrobles virtuallaw libraryred
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Appellant then zeroes
in on the failure of the prosecution to present the ballistic
examination
report on the empty shell of a .9 mm pistol forwarded to the Crime
Laboratory
which SPO2 Nestor Valenzuela claimed in the Final Investigation Report[17]
was surrendered by him (appellant). To appellant, such failure likewise
infirms the evidence for the prosecution.
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Finally, appellant
asserts that the testimonies of the prosecution witnesses are replete
with
inconsistencies which warrant his acquittal.
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Upon the other hand,
appellant harps on alibi to exculpate him from any liability, he
claiming
that at the time of the incident, he was at home celebrating the New
Year
with his wife and three children.[18]
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The appeal is bereft
of merit.
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Appellant was
positively
identified as the assailant by two credible eyewitnesses. The
victim’s
nephew Ariel testified thus:
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Q: On January
1, at around 1:30 a.m. 1998, where were you?
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A: We were about
to go home together with my uncle at Blueberry Street.
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Q: Where is this
located?
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A: Makati City.
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Q: Who were with
you when you were going home Mr. witness?
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A: Delbie Bermejo
and his two children.
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Q: What are the
names of his two children?
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A: Ruby Bermejo
and Rodel Bermejo.
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Q: And do you remember
of (sic) any untoward incident which happened at that time when you
were
walking home?
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A: There was
a sudden shot and as I turned my back I saw the accused Arturo Nicolas
holding and pointing the gun at my uncle then he fired the gun and ran
away.
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Q: Do you recall
where the gun was pointed at your uncle?
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A: At his body,
Sir.
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Q: The first
show (sic) that was allegedly fired by the accused, which part of the
body
of your uncle was he (sic) shot?
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A: Hindi ko po
alam yung unang putok kung saan nanggaling dahil nakatalikod po ako but
on the second shot I looked back and I saw the accused pointing his gun
to (sic) my uncle who was about to fall down and he again fired at my
uncle.
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x x x
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Q: For the
record,
you were referring to the gunman in this case, could you please point
him
out to the Honorable Court - the person that shot your uncle.
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A: Ayun po.
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Interpreter:
Witness pointed to a man wearing an orange T-shirt who when asked stood
up and answered by the name of Arturo Nicolas.[19] ( mphasis supplied.)
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And the victim’s
thirteen
year old daughter Ruby testified thus:
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Q: Do you know
how your father was shot?
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A: Yes, Sir.
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Q: Why do you
know Miss witness?
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A: Because I
was there when he was shot, Sir.
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Q: Do you recall
where he was shot?
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A: Yes, Sir.
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Q: Where?
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A: Sa eskinita
po. (small alley)
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x x x
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Q: Who shot your
father?
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A: Arturo
Nicolas,
Sir.
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Q: Will you
please
point him out to this Court.
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A: Siya po.
(witness pointing).
Interpreter: Witness
pointed to a man wearing orange T-shirt who when asked:
Q: Pangalan nyo
po?
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A: Arturo Nicolas.
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Q: Do you recall
how the accused shot your father Miss witness?
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A: Yes, Sir.
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Q: How, paano,
ipakita mo.
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A: When we were about
to go home coming from my uncle’s house because we attended a New
Year’s
party, I saw the accused at the corner who was about to enter the
"eskinita"
and at that time my father’s hand was on top of my shoulder
(akbay-akbay
ako), he greeted my father "Hi". My father allowed me to go ahead
because of the small alley and while I was walking I suddenly heard a
shot
and when I turned my back I saw the accused pointing the gun at my
father.cralaw:red
Q: And then what
did you do next Miss witness?
A: Because I was
very much scared, I ran away.[20]chanrobles virtuallaw libraryred
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There is no reason
to doubt the veracity of the testimonies of Ariel and Ruby, there being
no indication that they were actuated by any improper motive[21]
to falsely testify against appellant, their relationship to the victim
notwithstanding. In fact, relationship could even strengthen the
witnesses’ credibility, it being unnatural for aggrieved relatives to
falsely
accuse someone other than the actual culprit,[22]
for their natural interest in securing the conviction of the guilty
would
deter them from implicating any other.[23]chanrobles virtuallaw libraryred
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As for the
prosecution’s
failure to prove appellant’s motive for the killing, motive is not an
element
of the crime of murder, hence, it does not have to be proved.[24]
It becomes material only when the evidence is circumstantial or
inconclusive,
and there is doubt whether a crime has been committed or whether the
accused
has committed it.[25]
Ample direct evidence having been presented through the testimonies of
Ruby and Ariel who identified appellant as the perpetrator, appellant’s
motive is immaterial.[26]chanrobles virtuallaw libraryred
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With respect to the
instrument used in the killing of the victim, its presentation is not
indispensable
in the prosecution of the accused.[27]
The weapon used in the killing, after all, is also not an element of
the
crime of murder.[28]
Thus, this Court held in People v. Bello:[29]chanrobles virtuallaw libraryred
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For purposes of
conviction,
it is enough that the prosecution establishes by proof beyond
reasonable
doubt that a crime was committed and the accused is the author
thereof.
The production of the weapon used in the commission of the crime is not
a condition sine qua non for the discharge of such burden, for the same
may not have been recovered at all from the assailant. (Underscoring
supplied.) chanrobles virtuallaw libraryred
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Neither is the
presentation
of a witness to testify that appellant owned or was in possession of a
.9 mm pistol. Besides, it is not for the courts, much more the
defense,
to dictate what evidence to present or who should take the witness
stand
at the trial of a case.[30]
As this Court held in People v. Bulfango:[31]
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The prosecution has
the exclusive prerogative to determine whom to present as
witnesses.
The prosecution need not present each and every witness but only as may
be needed to meet the quantum of proof necessary to establish the guilt
of the accused beyond reasonable doubt.chanrobles virtuallaw libraryred
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As for appellant’s
insistence on his innocence in view of the absence of the results of
the
paraffin test he undertook, the same is unavailing. Suffice it to
state that even negative findings of a paraffin test do not
conclusively
show that a person did not discharge a firearm at the time the crime
was
committed.[32]
For absence of nitrates is possible if a person discharged a firearm
with
gloves on, or if he thoroughly washed his hands thereafter.[33]chanrobles virtuallaw libraryred
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Unavailing too is
appellant’s
argument that the presentation of the ballistic report on the third
slug
allegedly surrendered by him is "very vital for the Prosecution since
if
the Ballistic Report will show that this shell was fired from the same
gun where the other slugs recovered came from, then there is a strong
possibility
that the accused was indeed the same person who killed the victim."[34]
For, even without the ballistic report, the positive identification by
prosecution witnesses Ariel and Ruby of appellant as the assailant is
more
than sufficient to prove his guilt beyond reasonable doubt.chanrobles virtuallaw libraryred
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Appellant next focuses
on the prosecution witnesses’ claim that the victim was twice shot from
behind which is belied, so he claims, by the finding of Dr. Suguitan
that
the point of entry of the second shot was at the victim’s left
chest.
Appellant does not dispute, however, that the point of entry of the
first
shot was at the left portion of the victim’s nape. Given these,
the
plausible explanation is that the victim was initially shot from
behind,
hitting the left portion of his neck, after which he turned towards
appellant
at which instant he was shot again, this time hitting his chest.
Appellant’s proposition that had the trial court not overlooked such
"discrepancy,"
his acquittal would have been in order does not thus lie.chanrobles virtuallaw libraryred
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The alleged
inconsistencies
in the testimony of Ariel with respect to the position of the victim
when
the second shot was fired are just minor and collateral matters which
do
not affect the substance, veracity or weight of the witness’ testimony.[35]chanrobles virtuallaw libraryred
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Appellant’s alibi thus
fails vis-à-vis the positive and categorical assertion of
prosecution
witnesses.[36]
It is worthless, considered with suspicion and always received with
caution
not only because it is inherently weak and unreliable but also because
it is easily fabricated and concocted.[37]
Being negative in nature and self-serving, it cannot secure worthiness
more than that placed upon the testimonies of prosecution witnesses who
testify on clear and positive evidence.[38]chanrobles virtuallaw libraryred
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In any event, for the
defense of alibi to prosper, it is not enough to show that the accused
was somewhere else when the crime was committed. He must further
demonstrate that it was physically impossible for him to have been at
the
scene of the crime at the time of the commission thereof.[39]
Appellant glaringly failed in this regard. As correctly found by
the trial court, the evidence shows that the residence of the accused
at
47 Gladiola Street, Zone 8, Barangay Rizal, Makati City, where he
claimed
to be with his family when the crime was perpetrated is only about 300
meters away from the locus criminis at Blueberry Street, Aranay
Village,
Barangay Rizal, Makati City.[40]chanrobles virtuallaw libraryred
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As for the presence
of treachery in the killing, the trial court correctly appreciated the
same. The victim was caught defenseless when appellant suddenly
shot
him from behind as he was walking along an alley. The attack was
so swift and unexpected that the victim who was unarmed could not have
resisted. Whereas, on the other hand, appellant was not thereby exposed
to any danger.chanrobles virtuallaw libraryred
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Appellant is thus
guilty
beyond reasonable doubt of murder, penalized under Article 248 of the
Revised
Penal Code, as amended by Republic Act No. 7659, with reclusion
perpetua
to death. There being no other modifying circumstance, the lesser
penalty shall be imposed, pursuant to Article 63(2) of the Revised
Penal
Code.[41]chanrobles virtuallaw libraryred
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As to the civil aspect
of the case, in line with prevailing jurisprudence, the award of
indemnity
to the heirs of the victim in the amount of P50,000.00 is affirmed.[42]
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As for the award of
the amount of P127,500.00 as actual damages, the same appears to have
been
based on the claim of the victim’s sister Lilia Santilloza that the
heirs
incurred funeral, burial and miscellaneous expenses. She,
however,
merely presented two sheets of yellow pad containing a list[43]
of the expenses allegedly incurred which cannot be considered as
competent
proof and cannot replace the probative value of official receipts to
justify
the award of actual damages. Article 2199 of the Civil Code
explicitly
requires that, except as provided by law or stipulation, one is
entitled
to an adequate compensation only for such pecuniary loss suffered by
him
as he has duly proved. Only substantiated and proven expenses, or
those that appear to have been genuinely incurred in connection with
the
death, wake or burial of the victim will be recognized in court.[44]
The award of actual damages is thus deleted for lack of factual and
legal
basis. Nonetheless, accused-appellant should pay the heirs of the
victim temperate damages under Article 2224 of the Civil Code in the
amount
of P10,000.00.chanrobles virtuallaw libraryred
The award of moral damages
in the amount of P50,000.00 is in order.[45]
Additionally, given the attendance of the qualifying circumstance of
treachery,
the award to the heirs of the victim exemplary damages in the amount of
P25,000.00,[46]
in accordance with Article 2230 of the Civil Code,[47]
is in order.chanrobles virtuallaw libraryred
WHEREFORE, the appealed
decision of the Regional Trial Court of Makati, Branch 66, finding
appellant
ARTURO NICOLAS y RINGOR guilty beyond reasonable doubt of Murder is
hereby
AFFIRMED. The civil aspect of the case is MODIFIED to read:
Accused-appellant
is hereby ORDERED to pay the heirs of Delbie Bermejo the amounts of
P50,000.00
as civil indemnity for his death, P10,000.00 as temperate damages,
P50,000.00
as moral damages, and P25,000.00 as exemplary damages.chanrobles virtuallaw libraryred
Costs against appellant.chanrobles virtuallaw libraryred
SO ORDERED.chanrobles virtuallaw libraryred
Puno, J., (Chairman),
Panganiban, Sandoval-Gutierrez, and Corona, JJ., concur.chan
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____________________________
Endnotes:
[1]
Rollo at 15-18.chanrobles virtuallaw libraryred
[2]
Id. at 7.chanrobles virtuallaw libraryred
[3]
Records at 20.chanrobles virtuallaw libraryred
[4]
TSN, October 1, 1998 at 40.chanrobles virtuallaw libraryred
[5]
Records at 5.chanrobles virtuallaw libraryred
[6]
TSN, October 1, 1998 at 45.chanrobles virtuallaw libraryred
[7]
Id. at 25 and 40.chan
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[8]
Id. at 41.chanrobles virtuallaw libraryred
[9]
Id. at 28.chanrobles virtuallaw libraryred
[10]
Records at 2.chanrobles virtuallaw libraryred
[11]
TSN, October 1, 1998 at 12-13.chanrobles virtuallaw libraryred
[12]
Id. at 18.chanrobles virtuallaw libraryred
[13]
Ibid.chanrobles virtuallaw libraryred
[14]
Records at 51.chanrobles virtuallaw libraryred
[15]
Rollo at 3-4.chanrobles virtuallaw libraryred
[16]
Id. at 37.chanrobles virtuallaw libraryred
[17]
Exhibit "I", Records at 60-61.chanrobles virtuallaw libraryred
[18]
TSN, November 12, 1998 at 6-7.chanrobles virtuallaw libraryred
[19]
TSN, October 1, 1998 at 24-29.chanrobles virtuallaw libraryred
[20]
Id. at 37-41.chanrobles virtuallaw libraryred
[21]
TSN, November 12, 1998 at 13.chanrobles virtuallaw libraryred
[22]
People v. Ave, G.R. Nos. 137274-275, October 18, 2002.
[23]
People v. Bagcal, 350 SCRA 402, 410 (2001) (citation omitted).
[24]
People v. Cayetano, 223 SCRA 770, 777 (1993) (citation omitted).
[25]
People v. Galano, 327 SCRA 462, 473-474 (2000).
[26]
People v. Castillo, 273 SCRA 22, 32 (1997) (citation omitted).
[27]
People v. Chavez, 278 SCRA 230, 242 (1997).
[28]
People v. Piedad, G.R. No. 131923, December 5, 2002.
[29]
237 SCRA 347, 352 (1994) (citation omitted).
[30]
People v. Ballagan, 247 SCRA 535, 546 (1995) (citation omitted).
[31]
G.R. No. 138647, September 27, 2002 (citation omitted).
[32]
People v. Acuram, 331 SCRA 129, 140 (1998).
[33]
People v. Oliano, 287 SCRA 158, 177 (1998) (citation omitted).
[34]
Rollo at 38.chanrobles virtuallaw libraryred
[35]
People v. Bato, 325 SCRA 671, 677 (2000).
[36]
People v. Liwanag, G.R. No. 120468, August 15, 2001.
[37]
People v. Castillo, 273 SCRA 22, 32-33 (1997) (citation omitted).
[38]
People v. Alib, 322 SCRA 92, 100 (2000).
[39]
People v. Peralta, G.R. No. 133267, August 8, 2002.
[40]
Rollo at 94.chanrobles virtuallaw libraryred
[41]
Art. 63. Rules for the application of indivisible penalties.
x
x xchanrobles virtuallaw libraryred
In all cases in which the law prescribes a penalty composed of two
indivisible
penalties the following rules shall be observed in the application
thereof:chanroblesvirtuallawlibrary
x
x xchanrobles virtuallaw libraryred
2. When there are neither mitigating nor aggravating circumstances in
the
commission of the deed, the lesser penalty shall be applied.
[42]
Arcona v. Court of Appeals, G.R. No. 134784, December 9, 2002.chanrobles virtuallaw libraryred
[43]
Exhibit "B", Records at 52-53.chanrobles virtuallaw libraryred
[44]
People v. Bonifacio, G.R. No. 133799, February 5, 2002.chanrobles virtuallaw libraryred
[45]
People v. Panado, 348 SCRA 679, 691 (2000).chanrobles virtuallaw libraryred
[46]
People v. Catubig, 363 SCRA 621, 635 (2001).chanrobles virtuallaw libraryred
[47]
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.chanrobles virtuallaw libraryred
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