MARCELO JERVOSO AND NORMA CLOSA, VS. PEOPLE OF THE PHILIPPINES & HON. COURT OF APPEALS, RESPONDENTS.

In this petition for review, the petitioners assail the decision
of the Court of Appeals affirming, with modification of the penalty only, the
decision of the trial court which convicted petitioner Marcelo Jervoso of homicide for the fatal stabbing of Rogelio Jervoso, but which appreciated in his favor the mitigating
circumstance of voluntary surrender.  The
trial court and the Court of Appeals also convicted his wife, Norma Closa, of slight physical injuries committed against the
deceased.

The Court of Appeals set
forth in its decision the conflicting versions of the
prosecution and the defense as to how the crime was committed, thus:

“The facts as summarized in the People’s brief as borne out by
the evidence and WE quote, [are] as follows:

   “‘The evidence for the
prosecution showed that on October 24, 1982, at about 2:20 o’clock in the
afternoon, prosecution eyewitness Felicisimo Pamaus, a childhood friend of appellant spouses Marcelo Jervoso and Norma Closa as well
as of the victim, Rogelio Jervoso, was in the poblacion of MacArthur, Leyte going towards the store of appellants for the purpose
of buying bread.  While said eyewitness
was about four meters distance from the store, he saw the victim, Rogelio Jervoso, walking back and forth in front of said store and
appellant Marcelo Jervoso was also present
thereat.  It was while Rogelio, who was
still walking back and forth, had his back turned away from Marcelo when the latter, in the presence of his
spouse and co-appellant Norma Closa, pulled from his
waist a short bolo or ‘pisao’ measuring about 7-1/2
inches in length (Exh. ‘D’) and stabbed Rogelio at
the back with said weapon (pp. 2-6, tsn, March 16, 1984).

 “‘After being wounded, Rogelio ran away but was chased by Marcelo who
was still holding the ‘pisao‘ with his right hand and
was closely being followed by his wife and co-appellant, Norma Closa, across the national highway and inside the hollow
block-fenced yard of a certain Mrs. Olmedo.  Catching up with Rogelio inside the fenced
yard of Mrs. Olmedo where Rogelio had already fallen face downward upon entering the same, Marcelo stabbed
Rogelio again at the back of the latter with the ‘pisao.’
Meanwhile, Norma Closa, who had picked up a stone
measuring about 8 inches in length and 3-3/4 inches in width (Exh. ‘E’) struck the fallen Rogelio with said stone held by
both her hands, hitting the latter on the left side of the face near the ear
(pp. 5-8, 20, 21, 23, 24, tsn, March 16, 1984).

“‘Another eyewitness who was present and who saw the incident
in question from its inception up to the time of its termination and who in
fact tried to pacify Marcelo and Rogelio was Eleno Requioma.  After
Marcelo inflicted on Rogelio the second stab wound at the back and Norma Closa hit the latter with a stone (Exh.
‘E’) on the left side of the face near the ear and appellants went back to their
house, it was Requioma, together with Dominador Moquia and Rolando Molero, who brought the victim to the Abuyog
General Hospital where he later expired (pp. 5, 25, 26, 28, tsn,
March 16, 1984).  Requioma,
however, failed to testify for the prosecution as he died during the pendency of trial of the case (p. 6, decision, p. 229,
record).’

“The defense’ evidence was briefly stated in the appellant’s
brief which WE also quote, as follows:

“‘At the trial of this case, principal accused MARCELO JERVOSO
declared that on October 24, 1982 at about 2:00 o’clock in the afternoon he was
in his office situated in front of his main house which is also near his store,
making list of goods to be purchased in Tacloban City
for his store; that his wife Norma Closa was inside
their house bathing their children preparatory to their taking their afternoon nap; that Rogelio Jervoso, son of the brother of his adoptive father, entered
his office without knocking, and arrogantly asked him why he was possessing the
lands of Domingo Jervoso when he is not the real son
and he is not also a legally adopted son; that Rogelio Jervoso
was drunk at the time, demanded that an accounting of all the produce of the
coconuts and palay of Domingo Jervoso’s
lands; that he told Rogelio to come back the next day so both of them would go
and see his adoptive mother Afra Diaz who can
enlighten him (Rogelio) about the matter.

“‘Seeing Rogelio already belligerent, Marcelo went outside his
office.  While he was already outside and
about a meter from his store, he saw Ramon Taro and heard him shout:  ‘Boy, don’t do that!’ ‘Boy’ is the nickname
of Rogelio Jervoso. 
Upon hearing Ramon Taro shout, Marcelo looked back just as Rogelio
delivered a stabbing blow on him, hitting him on the left back part of his upper
arm, with a ‘pisao‘ (Exhibit ‘D’).

“‘After the first stab blow delivered by Rogelio, he (Marcelo)
ran across the National Highway
towards the gate of the house of Mrs. Olmedo.  Marcelo was able to enter the front yard of
Mrs. Olmedo’s premises and he tried to escape, but
Rogelio intercepted him by passing the other way.  Marcelo ran toward the corner but was met by
Rogelio, so he tried to retrace his steps to the gate, but when he was about to
go out of the gate.  Rogelio lunged at
him and delivered another stabbing blow but he was able to get hold of the
right writs of Rogelio’s hand holding the deadly weapon.  Meanwhile, Rogelio’s left arm was choking his
check (sic) and pushing him towards the concrete fence of Mrs. Olmedo.

“‘So, he
struggled to get hold of the ‘pisao‘ and was able to
wrest it from the hold of Rogelio
by twisting Rogelio’s right hand, but Rogelio was still holding his neck pinned
in his left arm against the concrete fence. 
To defend himself, Marcelo delivered two stabbing blows at the back of
Rogelio — the first blow, with a downward stroke on his right back portion and
the second by an upward stroke on his left back portion.

“‘After stabbing the victim Rogelio, he pushed Rogelio who fell to the ground on his left
side, he ran towards the gate of Mrs. Olmedo’s
premises and on his way out he saw Ramon Taro and called him instructing him to
fetch a policeman.’” (pp. 31-34, Rollo.)

The Court of Appeals affirmed the trial court’s finding that the plea of
self-defense was not proven by clear and convincing evidence:

“Regrettably missing in the appellants’ evidence are the
elements of self-defense which are:  (1)
unlawful aggression; (2) reasonable necessity of the means employed to prevent
and repel it; and (3) lack of sufficient provocation on the part of the person
defending himself.  The defense failed to
demonstrate the concurrence of the three essential elements with satisfactory
evidence so as to entitle the appellant of the defense of self-defense.

“WE are entirely in accord with the trial court that the
affirmative defense of self-defense was not proven by clear and convincing
evidence.  The evidence is doubtful, and
lacks that requisite of certainty and sufficient credulity to sustain the plea
of self-defense.

“Suffice it to say that the trial court did not err in finding
that the guilt of both appellant was proven with proof beyond reasonable
doubt.” (p. 36, Rollo.)

The dispositive
part of its decision reads:

“WHEREFORE, the appealed judgment is hereby MODIFIED in the
sense that the penalty to be imposed on appellant Marcelo Jervoso,
should be an imprisonment of six (6) years and one (1) day of prision mayor as minimum to twelve (12) years of prision mayor as maximum, and to indemnify the heirs of the
deceased Rogelio Jervoso in the amount of P30,000.00, Philippine Currency.

“In all other respects, the appealed judgment is hereby
affirmed.  Costs
against both appellants.” (p. 37, Rollo.)

In their petition for
review, the petitioners allege that the Court of Appeals erred:

(1) in ordering them
(petitioners) to pay indemnity of P30,000 to the heirs
of Rogelio Jervoso despite the reservation by said
heirs of their right to file a separate civil action against the accused, which
they did file in the Regional Trial Court of Manila, Branch XXXI where it was
docketed as Civil Case No. 83-18958 entitled, “Digna
Carino-Jervoso, et al. vs. Marcelo Jervoso and Norma Closa;”
and

(2) in finding the petitioners guilty of the crimes charged
without support of competent evidence and contrary to applicable laws and
decisions of this Court.

The first assignment of error is meritorious.  Section 1, Rule 111 of the Rules of Court
provides:

“Section. 1.  Institution of criminal and civil
actions.  – When a criminal action is
instituted, the civil action for the recovery of civil liability is impliedly
instituted with the criminal action, unless the offended party
waives the civil action, reserves his right to institute
it separately, or institutes the civil action prior to the
criminal action.

“Such civil action includes recovery of indemnity under the
Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil
Code of the Philippines
arising from the same act or omission of the accused.

“A waiver of any of the civil actions extinguishes the others.  The institution of or the reservation of the
right to file any of said civil actions separately waives the others.

“The reservation of the right to institute the separate civil
actions shall be made before the prosecution starts to present its evidence and
under circumstances affording the offended party a reasonable opportunity to
make such reservation.

“In no case may the offended
party recover damages twice for the same
act or omission of the accused.

“xxx               xxx                   xxx.”

The filing of a separate civil
action for damages against the accused by the heirs of the deceased victim is
authorized under Article 33 of the Civil Code which provides:

“Art.   33.  In cases of defamation, fraud, and physical
injuries, a civil action for damages, entirely separate and distinct from the
criminal action, may be brought by the injured party.  Such civil action shall proceed independently
of the criminal prosecution, and shall require only a preponderance of
evidence.”

The term “physical injuries” in Art.
33 is used in a generic sense.  It includes consummated, frustrated, or
attempted homicide (Madeja vs. Cruz, 126 SCRA 293,
cited in Vol. I, p. 62 Civil Code, 1990 Ed., by R.C. Aquino). 
Having reserved and filed in the Regional Trial Court of Manila a separate civil action to recover the civil
liability of the accused arising from the crimes charged, the heirs of the
deceased Rogelio Jervoso, are precluded from
recovering damages in the criminal case against the accused, for they are not
entitled to recover damages twice for the same criminal act of the
accused.  The trial court erred in
awarding to the heirs of Rogelio Jervoso in the
criminal case P30,000 as civil indemnity for his death
despite their reservation to file a separate civil action for that
purpose.  The Court of Appeals likewise
erred in affirming the award.

The second assignment of error raises a purely factual
issue:  whether the evidence is
sufficient to convict the accused of homicide. 
That issue may not be reviewed by this Court in an appeal by certiorari
under Rule 45 of the Rules of Court, where only legal issues may be raised.

WHEREFORE, the decision of the Court of Appeals in CA-G.R.
Cr No. 04472 entitled, “People of the Philippines,
plaintiff-appellee vs. Marcelo Jervoso
and Norma Closa, defendants-appellants” is
affirmed, except the award of P30,000 as indemnity for damages to the heirs of Rogelio Jervoso,
which should be deleted.  No costs.

SO ORDERED.

Narvasa, (Chairman), Cruz, Gancayco, and Medialdea, JJ., concur.