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349 Phil. 718


[ G.R. No. 113691, February 06, 1998 ]




The law presumes that an offender possesses full control of his mental faculties. Thus, the exempting circumstance of insanity or imbecility under Art. 12, par. 1 of the Revised Penal Code must be established by clear and competent evidence showing that the accused completely lost his reason, or was demented immediately prior to or at the very moment the crime was committed.

The Case

This is the legal precept relied upon by this Court in denying this appeal from the Decision[1] dated November 17, 1993 of the Regional Trial Court of Batangas City, Branch 7, in Criminal Case No. 5787 convicting Alberto Medina y Catud of murder.

In an Information dated June 10, 1992, Second Assistant Provincial Prosecutor Benito E. Lat charged appellant with murder allegedly committed as follows:[2]

“That on or about the 20th day of May, 1992, at about 11:00 o’clock in the evening, in Barangay Kaingin, Municipality of San Pascual, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a balisong knife, with intent to kill, with treachery and evident premeditation and without any justifiable cause, did then and there wilfully, unlawfully and feloniously attack, assault and stab with the said balisong knife one Andres M. Dalisay, suddenly and without warning, thereby inflicting upon the latter stab wounds on the different parts of his body, which directly caused his death.
Contrary to law.”

On arraignment, appellant, assisted by Counsel Jose Contreras, pleaded “not guilty” to the charge.[3] After trial in due course, the court a quo rendered the assailed Decision, the decretal portion of which reads:[4]

“WHEREFORE, the court finds the accused, ALBERTO MEDINA y CATUD, guilty beyond reasonable doubt of the crime of murder as defined and penalized by Article 248 of the Revised Penal [Code] and there being no mitigating circumstance to offset the qualifying circumstance of treachery and generic aggravating circumstance of evident premeditation, and hereby sentences him to suffer the penalty of reclusion perpetua and to pay the heirs of the deceased Andres M. Dalisay the sum of P50,000.00. Costs against the deceased.”
Hence, this appeal.[5]

The Facts

Version of the Prosecution

The prosecution’s version of the facts, as recounted by the solicitor general in the appellee’s brief, is as follows:[6]

“At around 11 pm on May 20, 1991, a party was held in the house of Sebastian and Delia Aguila in Barangay Caingin, Balite, Batangas, to celebrate the awarding of a championship trophy to the basketball team of Larry Andal. Among those present during the celebration were Andres Dalisay, Edgardo Silang, Larry Andal, Norberto Biscocho, Bayani Dorado, Salustiano Aguila and appellant Alberto Medina (pp. 3-5, tsn, September 9, 1992, testimony of Larry Andal). During the celebration, appellant and Dalisay danced the ‘cha-cha’ in the shade (sulambi) near the terrace of the house of Delia and Sebastian Aguila. While the two were dancing, the group watched and clapped their hands. When the dance was finished, appellant left the house of the Aguilas. After a while, Dalisay invited Andal to go home (pp. 8-11, tsn, September 11, 1992). The two left the house of the Aguilas, with Dalisay walking ahead of Andal. While they were walking, Andal saw appellant, who was waiting along the way, stab Dalisay with a ‘balisong’ in the abdominal region. Dalisay held the hand of appellant. While they were grappling, Dalisay was able to extricate himself and started to run away. Appellant chased him. When appellant caught up with Dalisay, appellant stabbed Dalisay once more at the back. Dalisay fell to the ground. He tried to get up and run, but he again fell down. Appellant stabbed him [once more] on the chest. Then [a]ppellant fled from the scene.
Andal, who was about one meter away, was so stunned and shocked by what he saw that he did not do anything to help Dalisay. Andal and his relatives brought Dalisay to the Batangas Regional Hospital, but Dalisay was pronounced dead on arrival (pp. 2-6, tsn, Sept. 11, 1992).
At that time of the incident, prosecution witness Edgardo Silang was urinating twenty paces away. He heard Delia Aguila, the sister of appellant, shouting, “Husay ka Alberto pihadong makukulong ka, sinaksak mo si Andres.” When he turned to where the shout came from, he saw Dalisay running towards him, pursued by appellant. He saw blood in front of the body of Dalisay. He held the arm of Dalisay and tried to hug him but Dalisay fell to the ground. At that point, he saw appellant flee (pp. 5-18, tsn, Sept. 9, 1992, testimony of Edgardo Silang).
Dr. Benjamin M. Aguado, the Municipal Health Officer of San Pascual Rural Health Unit, conducted a post-mortem examination of the body of the deceased. He issued a Post-Mortem Examination Report (Exhibit ‘C’) containing the following findings:

‘1.      Stab Wound between the 3rd & 4th interspace at the lateral side of the body of the sternum measuring ½ inch in length x 2 cm in wid[th] x 3 cm in depth.

2.       Stab Wound at the left Hypochondriac region measuring ½ inch in length x 2 cm in wid[th] exposing the omentum.

3.       Stab Wound thigh left just below the Inguinal Hernia measuring 1 inch in length 3 cm in wid[th] x 4 cm in depth.

4.       Stab Wound of the thigh left mid portion anterior surface measuring 1 inch in length x 3 cm in wid[th] x 4 cm depth.

5.       Stab Wound at the scapular region mid portion measuring ½ inch in length x 2 cm in wid[th] x 3 cm in depth.

6.       Stab Wound at the back left between the 7th and 8th interspace measuring ½ inch in length x 2 cm in wid[th] x 3 cm in depth.

7.       Stab Wound at lower portion of the scapular region left measuring ½ inch in length x 2 cm in wid[th] x 3 cm in depth.

8.       Stab Wound at the back right at the levelof the kidney measuring ½ inch in length x 2 cm in wid[th] x 4 cm in depth.’

(Exhibit ‘C’).”

Version of the Defense

In his brief, appellant sets up insanity as his defense. His version of the facts is as follows:[7]

“1.      Accused-appellant Alberto Medina testified that on the evening of May 20, 1992, he went to the house of his sister, Delia Aguila, purposely to watch t.v. (TSN, September 9, 1993, p. 5). Upon his arrival, he saw the group of the deceased Andres Dalisay, Larry Andal and Edgardo Silang who were then engaged in a drinking spree at the balcony of the Aguila residence (Ibid, p. 6).
2.       Accused-appellant refused the group’s invitation to join them in their drinking; however, he accepted their invitation to dance with Andres Dalisay (Ibid.). In fact, accused-appellant danced with him for about six (6) or seven (7) times (Ibid, p. 7).
3.       As the dance and the party ended, the guests started to leave. Accused-appellant left his sister’s house to head for his home at Barangay Balete, which was more or less 200 meters away. Among the persons left behind was Andres Dalisay.
4.       While walking along the path, accused-appellant heard Andres Dalisay say, ‘Bert, sandali lang’, (TSN, September 9, 1993, p. 10) prompting the former to stop.
5.       Thereupon, Andres Dalisay, who appeared to be drunk, approached accused-appellant and uttered: ‘Bakit mo ako hiniya?’ and hit him (accused-appellant) on the chest (Ibid). Enraged, accused-appellant prepared to fight back when Andres Dalisay threatened to kill him (Ibid., p. 11). At this point, accused-appellant further testified, it looked as if Andres Dalisay was taking something out [of] his pocket.
6.       Upon seeing this, accused-appellant beat him to the draw, took out his ‘balisong’ and stabbed Andres Dalisay, who then looked like a devil with ‘horns’ (Ibid., p. 11 and 19). It was only when Andres Dalisay uttered ‘May tama ako’ did accused-appellant stop xxx stabbing his victim (Ibid., p. 16).
7.       Upon realizing that he has stabbed a person, accused-appellant surrendered himself and the weapon on the same evening to the authorities (TSN, September 9, 1993, p. 20).
8.       On several occasions before, specifically during the latter part of 1981, accused-appellant had exhibited unusual behaviors. His sister Lorna Medina testified that on June 22, 1982, she brought her brother to the National Mental Hospital after the latter had shown unusual conduct, such as looking blankly at a distance, hitting his wife or banging her head on the wall for no reason and having sleepless nights (TSN, August 11, 1993, pp. 13-15).
9.       From June to October of 1982, accused-appellant was confined at the National Mental Hospital. Ms. Lourdes Palapal, the Records Officer of the National Center for Mental Health (formerly, the National Mental Hospital) testified on the documents issued by their office relative to the confinement of accused-appellant for ‘schizophreniform disorder’ during that period (Exhibits 3 to 11).
10.     After his release from the hospital, accused-appellant lived with his mother and his two children at Brgy. Balete, San Pascual, Batangas. His condition did not seem to improve, though. Lorna Medina further testified that in January of 1992, accused-appellant again exhibited the same unusual behavior which she had observed from him in 1982 (TSN, August 11, 1993, p.17).
11.     This prompted Lorna to refer her brother’s case to Dr. Teresita Adigue, a psychologist-friend who conducted a psychological examination on accused-appellant (TSN, August 11, 1993, p. 17).
12.     Dr. Teresita Adigue, a Doctor of Psychology and a holder of a Master’s Degree in Clinical and Industrial Psychology and another Master’s Degree in Guidance and Counselling, and an accredited psychologist of the Philippine National Police testified that on January 20, 1992, she administered a psychological evaluation on accused-appellant (TSN, May 24, 1993, p. 5).
13.     Dr. Adigue testified that based on the evaluation of accused-appellant, the latter has been shown to be suffering from depression and was exhibiting homicidal tendencies, and that he did not know the difference between right and wrong (TSN, May 24, 1993, p. 10 and TSN, July 20, 1993, p. 16). On cross-examination, the witness affirmed that a person suffering from depression may be insane (TSN, July 20, 1993, p. 10).
14.     Dr. Adigue stated that the psychological evaluation made on accused-appellant was based on the behavioral history of the latter furnished to her by Lorna Medina and Leticia Regalado, (TSN, July 20, 1993, p. 11) a case study based on the family background of accused-appellant (Ibid., p. 12), and on a series of psychological tests (‘draw a person’ test, the ‘card’ test wherein the emotions of the subject are represented by the cards, and the thematic perception test) (TSN, May 24, 1993, p. 7).”

Ruling of the Trial Court

The trial court rejected the appellant’s defense of insanity. It ruled that Dr. Adigue was not properly qualified as an expert witness because: (1) she did not have the appellant’s complete behavioral history; (2) she failed to demonstrate satisfactorily how she arrived at her conclusions; (3) her method of testing was incomplete and inconclusive; (4) her examination lasted for only a few hours without any follow-up evaluation; (5) the university from where she allegedly obtained her doctoral degree is not known to specialize in psychology or psychiatry; (6) she is not known as a psychiatrist; and (7) she reported that ‘the mental activity [of the accused was] functioning on the normal level’ at the time of the evaluation, that he comprehended instructions fast, and that he was suffering only from mild depression.

The testimony of appellant’s sister that she had observed unusual behavior on the part of appellant did not constitute sufficient proof of his insanity, “because not every aberration of the mind or mental deficiency constitute[s] insanity.” That the accused was released from confinement at the National Center for Mental Health on October 4, 1982 and was not readmitted for any mental disorder for about ten years militated against his alleged lunacy. Additionally, the trial judge observed that, during the hearings, appellant was attentive, well-behaved and responsive to the questions propounded to him in English even without translation.

On the other hand, appellant’s mental agility was shown when he admitted seeing the deceased take something out of his pocket, for which reason he decided to beat him to the draw (“Inunahan ko na”). With his balisong, he repeatedly stabbed the deceased. The trial court appreciated treachery based on Andal’s narration of the stabbing incident.

Assignment of Errors

The defense assigns the following errors allegedly committed by the trial court in convicting appellant:


The trial court gravely erred in not acquitting accused-appellant or mitigating his criminal liability on the ground of insanity.


Assuming, arguendo, that accused-appellant is criminally liable for the death of Andres Dalisay, the trial court nevertheless erred in convicting him of the crime of murder by appreciating the aggravating circumstances of treachery and evident premeditation despite doubt tending to show the existence of such circumstances.


Assuming, arguendo, that accused-appellant is criminally liable, the trial court likewise erred in not appreciating the mitigating circumstance of voluntary surrender in his favor.”

In short, appellant puts in issue (1) his insanity and (2) the presence and the effect of the following circumstances: (a) treachery, (b) evident premeditation, and (c) voluntary surrender. We shall deal with each of these issues.

The Court’s Ruling

The appeal is partly meritorious. We reject appellant’s plea for acquittal but accept his claim of voluntary surrender.

First Issue: Appellant’s Insanity Not Proven

Appellant insists that the trial court gravely erred in refusing to consider Dr. Adigue as an expert witness. He argues that Dr. Adigue, being an accredited psychologist of the Philippine National Police since 1979 and a holder of a doctorate in psychology from the University of Calcutta, India, and a master’s degree in clinical and industrial psychology, deserves credence.

Appellant misses the point. More than her academic qualifications as a psychologist, what really matters is the failure of Dr. Adigue’s testimony to establish legal insanity on the part of the appellant. After examining the appellant on January 20, 1992, or four months prior to the incident, and after conducting the “Draw-a-Person” Test, the Thematic Apperception Test and the Hand Test, she reported the results of her examination as follows:

Psychological test results revealed that subject’s mental activity is functioning on the normal level at the time of evaluation. He can comprehend instructions fast and [was] never hesitant to take the said examinations.
With regards to some dominant personality factors, test results revealed also the fact that subject is suffering only from mild depression because of problems he had encountered in life and in things around him. He had also developed negative reactions and outlook in life, therefore the undersigned concluded that he has some emotional disturbances.”

Verily, such results do not prove the alleged insanity of the appellant. Art. 12, par. 1 of the Revised Penal Code, requires a complete deprivation of rationality in committing the act; i.e., that the accused be deprived of reason, that there be no consciousness of responsibility for his acts, or that there be complete absence of the power to discern.[8] More relevantly, said report does not support the claim that appellant could not distinguish right from wrong.

Thus, the trial court properly rejected appellant’s defense of insanity. The presumption of law, per Art. 800 of the Civil Code, always lies in favor of sanity, and, in the absence of proof to the contrary, every person is presumed to be of sound mind.[9]

The defense of insanity or imbecility must be clearly proved,[10] for there is a presumption that acts penalized by law are voluntary.[11] Hence, in the absence of positive evidence that the accused had previously lost his reason or was demented moments prior to or during the perpetration of the crime, the courts will always presume that he was in a normal state of mind. In Bascos,[12] the accused was exempted from criminal liability because he was a violent maniac as confirmed by the acting district health officer who examined him. In Bonoan,[13] the Court reversed the conviction of the accused, holding that a person afflicted with dementia praecox and manic depressive psychosis has “no control whatever of his acts. xxx There is in this disorder a pathologic lessening [of] normal inhibitions and the case [in] which impulses may lead to actions impairs deliberations and the use of normal checks to motor impulses (Peterson, Haines and Webster, Legal Medicine and Toxicology [2d ed., 1926], vol. I, p. 617).” There, the accused was treated at the psychiatric department of San Lazaro Hospital and was released long before the commission of the crime, but the reports of the alienists[14] who examined the accused after the crime confirmed his mental disorders. The Court held that the evidence that the accused appeared lucid when he stabbed the victim did not necessarily prove his sanity, because it was “clear from what Dr. Sydney Smith, Regius Professor of Forensic Medicine, University of Edinburgh, said in his work on Forensic Medicine, (3d. ed. [London], p. 382), that in the type of dementia praecox, ‘the crime is usually preceded by much complaining and planning. In these people, homicidal attacks are common, because of delusions that they are being interfered with sexually or that their property is being taken.’”[15]

However, care must be taken to distinguish between lack of reason (insanity) and failure to use reason or good judgment due to extreme anger (passion). “xxx [I]t is now well settled that mere mental depravity, or moral insanity, so called, which results, not from any disease of mind, but from a perverted condition of the moral system, where the person is mentally sane, does not exempt one from responsibility for crimes committed under its influence.”[16]

Thus, before the defense of insanity may be accepted as an exempting circumstance, Philippine case law shows a common reliance on the test of cognition, which requires a complete deprivation of intelligence -- not only of the will -- in committing the criminal act.[17] In the cited case of Rafanan, the fact that appellant threatened the victim with death in case she reported her ravishment indicated that he was aware of the reprehensible moral depravity of that assault and that he was not deprived of intelligence. In Dungo, that the accused knew the nature of what he had done negated his claim that he was insane when he fatally stabbed his victim.[18] In Aquino[19], appellant, who took 120 cc of cough syrup and consumed three sticks of marijuana before raping his victim and hitting her head with a stone, had some form of mental illness which did not totally deprive him of intelligence. The presence of his reasoning faculties, enabling him to exercise sound judgment and to satisfactorily articulate the aforesaid matters, sufficiently discounted any intimation of insanity when he committed the felony. It has been held that mere abnormality of the mental faculties does not exclude criminal culpability.

In the present case, Dr. Adigue’s testimony did not establish complete deprivation of appellant’s reason. Consequently, appellant cannot claim exemption from criminal liability under Art. 12, par. 1 of the Revised Penal Code.

Alternatively, appellant argues that his condition should merit, at the very least, the appreciation of a mitigating circumstance under Art. 13, par. 9 of the Code.[20] In Formigones, the Court found the feeblemindedness of the accused to be a mitigating circumstance, noting that his faculties were not fully developed. After stabbing his wife, the accused in said case took her dead body up their house, put her on the floor and lay beside her for hours, showing remorse at having killed her. The accused was “‘suffering [from] some physical defect which thus restrict[ed] his means of action, defense or communication with his fellow beings,’ or such illness ‘as would diminish the exercise of his will power.’”[21] In Rafanan, schizophrenic reaction, although not exempting because it does not completely deprive the offender of the consciousness of his acts, was considered a mitigating circumstance which diminished the exercise of the offender’s will power without, however, depriving him of the consciousness of his acts.[22]

In the instant case, however, the defense miserably failed to establish the deprivation of the appellant’s will when he stabbed his victim. Appellant testified that he thought the victim was going to pull out a weapon, thus he beat him to the draw and stabbed him with his balisong.[23] This statement shows that he did not suffer any deprivation of reason or discernment. While the victim appeared to him as a “devil with horns,” such perceptual distortion occurred only after he had dealt the fatal blows on the victim. The Court cannot, therefore, appreciate this mitigating circumstance in his favor.

Second Issue: Proof of Treachery

The treacherous nature of appellant’s attack on the victim was established by Andal who witnessed the incident. Testified the witness:[24]

Q     What about you, where [were] you on that occasion?
A     I was with Andres in going home sir.
Q     Can you tell the court [if you were] walking together at that time?
A     Yes sir.
Q     Who was ahead?
A     Andres was ahead of me, sir.
Q     And you [were] following?
A     Yes, sir.

x x x                                             x x x                                     x x x

Q     While walking together, can you tell the court what actually happened?
A     Alberto waited for us on the way that were going pass, sir.
Q     Why do you say that Alberto [was] waiting for you and Andres during that time?
A     Perhaps he has a bad intentioned, (sic) sir.
Q     While walking on that path Andres was ahead of you what did you see if you had see[n] anything?
A     Alberto stabbed Andres Dalisay, sir.

x x x                                             x x x                                     x x x

Q     What happen[ed] after Alberto had [stabbed] Andres Dalisay?
A     They chased one another, sir.

x x x                                             x x x                                     x x x

Q     What happen[ed] after that?
A     When the first stubbed (sic) hit Dalisay, Dalisay tried to hold the hand of Alberto and when they were struggling Andres was able to push Alberto and they both fell down and with Alberto on top of Andres, Andres was able to push Alberto and he was able to get up and Andres ran away and Alberto chased him sir.
Q     Did Alberto [catch] up with Andres x x x?
A     Yes sir, Andres Dalisay toppled down and Alberto stabbed him at the back, sir.
Q     What happen[ed] next?
A     After the stabbing of Andres at the back by Alberto, Andres was able to get up and ran and while running he fell for the second time and Alberto stabbed [him] again on the chest, sir.”

Treachery can be gleaned from the fact that appellant waited behind a chico tree and then, all of a sudden, jumped on the victim. Appellant’s attack was not only sudden and unexpected; it was also vicious and relentless. After delivering the first stab, appellant chased his victim and stabbed him seven more times. These seven additional stabs were inflicted when the victim was helpless, as he fell down several times during the pursuit. Counterattack and escape proved futile because of the injuries that the victim sustained. The medico-legal officer reported that of the eight stab wounds on the victim, six were fatal.[25] Clearly, in killing his victim, appellant employed means which ensured its execution without risk to himself arising from any defense which the victim might make.[26] Treachery which qualified the killing as murder was properly appreciated by the trial court.

Third Issue: Absence of Evident Premeditation

The Court concurs with appellant and the solicitor general that the trial court erred in appreciating evident premeditation. The solicitor general explains that “only a few minutes had passed” from the time appellant left his sister’s house to the time he stabbed his victim. Thus, no sufficient lapse of time is appreciable from the determination to commit the crime until its execution to allow appellant to reflect upon the consequences of his act.[27] Under such circumstances, evident premeditation cannot be appreciated.

Fourth Issue: Voluntary Surrender

The mitigating circumstance of voluntary surrender should have been credited in favor of the appellant.[28] The solicitor general concurs and notes that appellant, after having earlier given himself up to a certain Col. Faltado, surrendered at midnight on May 20, 1992, or about an hour after the stabbing incident, to Wilfredo Sevillano, former desk officer of the Batangas City Police Station.[29] Hence, the evidence sufficiently established the elements of voluntary surrender, namely: (1) the offender has not been actually arrested; (2) he surrendered himself to a person in authority or an agent of a person in authority; and (3) his surrender was voluntary.[30]

The Proper Penalty

Voluntary surrender diminishes appellant’s penalty. Since the crime was committed prior to the effectivity of Republic Act 7659, the imposable penalty for murder is reclusión temporal in its maximum period to death. The proscription of the death penalty by the 1987 Constitution did not amend the imposable penalty under said article.[31] Thus, Art. 64, which provides the rules for the application of penalties containing three periods, governs the determination of the proper penalty in this particular case.[32] Contrary to the contention of the solicitor general, Art. 63 of the Revised Penal Code does not apply.[33]

Following Art. 64 (2) of the Code, the mitigating circumstance of voluntary surrender entitles appellant to the imposition of reclusión temporal in its maximum period. Applying the Indeterminate Sentence Law (Act No. 4103, as amended), appellant should be sentenced to an indeterminate sentence of prision mayor in its maximum period, as minimum, and reclusion temporal in its maximum period, as maximum.

WHEREFORE, the appealed Decision is AFFIRMED with MODIFICATION. Appellant is IMPOSED an indeterminate sentence of ten years and one day of prisión mayor maximum, as minimum, and seventeen years, four months and one day of reclusión temporal maximum, as maximum.


Davide, Jr., (Chairman), Bellosillo, Vitug, and Quisumbing, JJ., concur.

[1] Penned by Judge Artemio S. Tipon; Rollo, pp. 21-24.

[2] Records, p. 1.

[3] Ibid., p. 77.

[4] Rollo, p. 24.

[5] The case was deemed submitted for resolution on July 10, 1996 when the Court noted receipt of the appellee’s brief. Filing of appellant’s Reply Brief was deemed waived.

[6] Rollo, pp. 140-144. The 25-page appellee’s brief was signed by Solicitor General Raul I. Goco, Assistant Solicitor General Romeo C. dela Cruz and Associate Solicitor Roselyn O. Balanquit.

[7] Rollo, pp. 67-73. Appellant’s 42-page brief was prepared by Counsel de Oficio Constantino B. de Jesus.

[8] People vs. Formigones, 87 Phil. 658, 660-663, November 29, 1950; People vs. Rafanan, Jr., 204 SCRA 65, 74, November 21, 1991; People vs. Dungo, 199 SCRA 860, 866, July 31, 1991; and People vs. Puno, 105 SCRA 151, 158-159, June 29, 1981.

[9] People vs. Rafanan, supra, p. 79; People vs. Morales, 121 SCRA 426, 436, April 20, 1983; and People vs. Aquino, 186 SCRA 851, 858, June 27, 1990.

[10] People vs. Bonoan, 64 Phil. 87 [1937], per Laurel, J.

[11] People vs. Formigones, supra, p. 661; and People vs. Aquino, supra, p. 861.

[12] People vs. Bascos, 44 Phil. 204, 206-207 [1922].

[13] Supra.

[14] Webster’s Third New International Dictionary defines an alienist as one who treats the diseases of the mind, a physician who specializes in psychiatry.

[15] People vs. Bonoan, supra, p. 99. Emphases found in the original.

[16] United States vs. Vaquilar, 27 Phil. 88, 92, March 13, 1914, per Trent, J.

[17] People vs. Rafanan, supra; People vs. Dungo, supra, p. 871.

[18] Supra.

[19] People vs. Aquino, supra, p. 862-863.

[20] Art. 13. Mitigating circumstances. -- The following are mitigating circumstances:

             “xxx       xxx        xxx

9. Such illness of the offender as would diminish the exercise of the will-power of the offender without however depriving him of consciousness of his acts.

             xxx        xxx        xxx”

[21] Supra.

[22] Supra, p. 80

[23] TSN, September 9, 1993, p. 11.

[24] TSN, September 11, 1992, pp. 3-5.

[25] TSN, November 24, 1992, p. 6.

[26] People vs. Marolano, G.R. No. 105004, July 24, 1997, p. 37; People vs. Sol, G.R. No. 118504, May 7, 1997, pp. 12-13; and People vs. Serzo, G.R. No. 118435, June 20, 1997, pp. 20-22.

[27] The elements of evident premeditation are: (1) the accused determined to commit the crime, (2) an act manifestly indicating that he clung to his determination, and (3) a sufficient lapse of time between such determination and execution to allow him to reflect upon the consequences of his act. People vs. Estrellanes, 239 SCRA 235, 250, December 15, 1994; People vs. Layno, G.R. No. 110833, November 21, 1996, pp. 20-21; People vs. Deopante, G.R. No. 102772, October 30, 1996, pp. 8-9; People vs. Sol, supra, pp. 14-15; and People vs. Nell, G.R. 109660, July 1, 1997, pp. 16-17.

[28] People vs. Rivero, 242 SCRA 354.

[29] TSN, December 11, 1992, pp. 3-4.

[30] People vs. Isleta, G.R. No. 114971, November 19, 1996, p. 19; and People vs. Castillo, 261 SCRA 493, 503, September 6, 1996.

[31] People vs. Muñoz, 170 SCRA 107, 122-124, Feb. 9, 1989.

[32] People vs. Sol, supra, pp. 16-18.

[33] Appellee’s Brief, pp. 23-24; Rollo, pp. 160-161. The solicitor general misinterpreted People vs. Buenaflor (211 SCRA 492, 501, July 15, 1992), which applied the rules for the application of indivisible penalties in Article 63, because said case dealt with rape which was punishable with reclusión perpetua, a single indivisible penalty.

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