G.R. No. L-37633 January 31, 1975PEOPLE OF THE PHILIPPINES,plaintiff-appellee,vs.FELICISIMO MEDROSO, JR.,accused-appellant.Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Eduardo C. Abaya and Trial Attorney Josefina C. Castillo for plaintiff-appellee.Crispo B. Borja for accused-appellant.MUOZ PALMA,J.:The only question or issue involved in this appeal is the correctness of the judgment rendered by the Court of First Instance of Camarines Sur in Criminal Case No. 403 wherein accused-appellant, Felicisimo Medroso Jr., on a plea of guilty, was convicted of "Homicide through reckless imprudence" and sentencedto suffer the penalty of, from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY, as minimum, to SIX (6) YEARS, as maximum, ofprision correccionaland ordered to pay the heirs of the deceased in the sum of P12,000.00 as actual damages, P4,000.00 as moral damages and P4,000.00 as exemplary damages, Philippine currency, and to pay the cost of this proceeding. (p. 11,Rollo)Sometime on August 6, 1971, the Provincial Fiscal of Camarines Sur filed with the local Court of First Instance an Information accusing the herein appellant, Felicisimo Medroso Jr., of "Homicide through reckless imprudence" alleged to have been committed as follows:That on or about the 16th of May, 1971, in the barrio of San Roque, municipality of Bombon, province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the said accused without any license to drive motor vehicles issued by competent authority, did then and there wilfully and unlawfully manage and operate a BHP dump truck bearing Plate No. 7329, S. 1969 and with BHP truck No. 14-H3-12P and while passing along the said barrio in a negligent, careless and imprudent manner, without due regard to traffic laws, rules and regulations to prevent accident to persons and damage to property, caused by such negligence and imprudence, said truck driven and operated by him to bump and hit one Iigo Andes thereby causing his death. (p. 4,Rollo)The case was called for trial on July 18, 1972, on which date appellant with the assistance of his counsel pleaded guilty to the charge with two mitigating circumstances in his favor,viz: plea of guilty and voluntary surrender, to which the prosecuting fiscal offered no objection.In its decision, the trial court, presided by Hon. Delfin Vir Sunga, after appreciating the above-mentioned mitigating circumstances and considering as an aggravating circumstance the fact that appellant drove the vehicle in question without a license, sentenced the accused as indicated above.Not content with the penalty imposed, accused appealed to the Court of Appeals.On September 19, 1973, the Appellate Court, through its Second Division at the time, certified the case to this Court on the ground that the appeal covers pure questions of law.Appellant is charged with homicide thru reckless imprudence for which the penalty provided for in Paragraph 6, sub-section 2 of Article 365 of the Revised Penal Code isprision correccionalin its medium and maximum periods or from two years, four months and one day to six years.Appellant now contends that inasmuch as he has two mitigating circumstances in his favor without any aggravating circumstance, as driving without a license is not to be considered such, he is entitled to a penalty one degree lower than that prescribed by law pursuant to Article 64 of the Revised Penal Code1or,arresto mayorin its maximum period to correct in its minimum period, that is, from "four months and one day to two years, four months and one day," and that applying the Indeterminate Sentence Law, the trial court should have imposed a minimum within the penalty still one degree lower, which is arrestomayor minimumand medium periods (1 month and 1 day to 4 months) and to a maximum of not more than two years, four months, and one day ofprision correccional.Appellant's proposition would indeed be correct if he were charged with any of the offenses penalized in the Revised Penal Code other than Article 365 thereof, But because appellant is accused under Article 365, he is not entitled as a matter of right to the provisions of Article 64 of the Code.Paragraph 5 of Article 365 expressly states that in the imposition of the penalties provided for in the Article, the courts shall exercise their sound discretionwithout regard to the rules prescribed in Article 64.2The rationale of the law can be found in the fact that in quasi-offenses penalized under Article 365, the carelessness, imprudence or negligence which characterizes the wrongful act may vary from one situation to another, in nature, extent, and resulting consequences, and in order that there may be a fair and just application of the penalty, the courts must have ample discretion in its imposition, without being bound by what We may call the mathematical formula provided for in Article 64 of the Revised Penal Code. On the basis of this particular provision, the trial court was not bound to apply paragraph 5 of Article 64 in the instant case even if appellant had two mitigating circumstances in his favor with no aggravating circumstance to offset them.InPeople vs. Agito, 1958, 103 Phil. 526, the accused, Simplicio Agito, was charged with triple homicide and serious physical injuries thru reckless imprudence before the Court of First Instance of Negros Occidental of Mindoro. He pleaded guilty and the trial court, applying Article 365, paragraph 6, sub-section 2 of the Revised Penal Code, sentenced him to suffer an indeterminate penalty from one year and one day to three years, six months and twenty one days ofprison correccional. The accused appealed questioning the propriety of the penalty imposed and appellant contendedinter aliathat the trial court erred in not considering the mitigating circumstance of plea of guilty so as to reduce the penalty to a minimum period. This contention was held by this Court to beuntenablefor to uphold it would be contrary to Article 365, paragraph 5, of the Revised Penal Code as amended by R.A. 384 which provides that "(I)n the imposition of these penalties (referring to the penalties defined in Article 365), the courts shall exercise their sound discretionwithout regard to the rules prescribed in Article 64." (Portion in parenthesis supplied)In the case now before Us, the penalty for homicide thru reckless imprudence with violation of the Automobile Law isprision correccionalin its medium and maximum periods with a duration from two years, four months, and one day to six years. Applying the Indeterminate Sentence Law to which appellant is entitled 3 the imposable penalty covers aminimumto be taken from the penalty one degree lower than that prescribed by law orarresto mayorin its maximum period toprision correccionalin its minimum period, i.e. four months and one day to two years and four months,andamaximumto be taken in turn from the penalty prescribed for the offense the duration of which is from two years, four months and one day to six years. The determination of theminimumandmaximum termsis left entirely to the discretion of the trial court, the exercise of which will not be disturbed on appeal unless there is a clear abuse.4The penalty imposed by the trial court is well within the periods we have given above except for theone dayexcess in the minimum thereof. The minimum of the indeterminate sentence given by His Honor the trial Judge should have been "two years and four months ofprision correccional" instead of "two years, four months and one day", because with the addition of one day the minimum term fell within the range of the penalty prescribed for the offense in contravention of the provisions of the Indeterminate Sentence Law. On this score, there is need to correct the minimum of the indeterminate penalty imposed by the courta quo.As regards the second issue raised by appellant, We do not find any reversible error in the judgment awarding to the heirs of the deceased P4,000.00 as moral damages and another P4,000.00 as exemplary damages in addition to P12,000.00 byway of actual damages.Moral damages compensate for mental anguish, serious anxiety and moral shock suffered by the victim or his family as the proximate result of the wrongful act,5and they are expressly recoverable where a criminal offense result in physical injuries as in the instant case before Us which in fact culminated in the death of the victim.6InPeople vs. Pantoja, L-18793, Oct. 11, 1968, 25 SCRA 468, this Court fixed the sum of P12,000.00 as compensatory damages for a death caused by a crime (Art. 2206 of the Civil Code) and it was there stated that, in proper cases, the courts may adjudge additional sums by way of moral damages and exemplary damages.The determination of the amount which would adequately compensate the victim or his family in a criminal case of this nature is left to the discretion of the trial judge whose assessment will not be disturbed on appeal unless there is a manifest showing that the same is arbitrary or excessive, for it has been said that "(T)here can be no exact or uniform rule for measuring the value of a human life and the measure of damages cannot be arrived at by precise mathematical calculation, but the amount recoverable depends on the particular facts and circumstances of each case." (25 C.J.S., 1241, cited in Alcantara vs. Surro, et al., 93 Phil. 472, 477)With respect to the exemplary damages awarded by the trial court, the same are justified by the fact that the herein appellant without having been issued by competent authority a license to drive a motor vehicle, wilfully operated a BHP dump truck and drove it in a negligent and careless manner as a result of which he hit a pedestrian who died from the injuries sustained by him. Exemplary damages are corrective in nature and are imposed by way of example or correction for the public good (Art. 2229, Civil Code), and the situation before Us calls for the imposition of this kind of damages to deter others from taking into their hands a motor vehicle without being qualified to operate it on the highways thereby converting the vehicle into an instrument of death.WHEREFORE, the appealed decision is hereby MODIFIED in that the minimum term isreduced by one day. The herein appellant is sentenced therefore to an indeterminate penalty ranging from TWO (2) YEARS and FOUR (4) MONTHS ofprision correccionalas minimum to SIX (6) YEARS also ofprision correccionalas maximum. In all other respects, the decision stands. Without pronouncement as to costs.Castro (Chairman), Teehankee, Makasiar and Esguerra, JJ., concur.

G.R. No. 128690 January 21, 1999ABS-CBN BROADCASTING CORPORATION,petitioner,vs.HONORABLE COURT OF APPEALS, REPUBLIC BROADCASTING CORP, VIVA PRODUCTION, INC., and VICENTE DEL ROSARIO,respondents.DAVIDE, JR.,CJ.:In this petition for review oncertiorari, petitioner ABS-CBN Broadcasting Corp. (hereafter ABS-CBN) seeks to reverse and set aside the decision1of 31 October 1996 and the resolution2of 10 March 1997 of the Court of Appeals in CA-G.R. CV No. 44125. The former affirmed with modification the decision3of 28 April 1993 of the Regional Trial Court (RTC) of Quezon City, Branch 80, in Civil Case No. Q-92-12309. The latter denied the motion to reconsider the decision of 31 October 1996.The antecedents, as found by the RTC and adopted by the Court of Appeals, are as follows:In 1990, ABS-CBN and Viva executed a Film Exhibition Agreement (Exh. "A") whereby Viva gave ABS-CBN an exclusive right to exhibit some Viva films. Sometime in December 1991, in accordance with paragraph 2.4 [sic] of said agreement stating that .1.4 ABS-CBN shall have the right of first refusal to the next twenty-four (24) Viva films for TV telecast under such terms as may be agreed upon by the parties hereto, provided, however, that such right shall be exercised by ABS-CBN from the actual offer in writing.Viva, through defendant Del Rosario, offered ABS-CBN, through its vice-president Charo Santos-Concio, a list of three(3) film packages (36 title) from which ABS-CBN may exercise its right of first refusal under the afore-said agreement (Exhs. "1" par, 2, "2," "2-A'' and "2-B"-Viva). ABS-CBN, however through Mrs. Concio, "can tick off only ten (10) titles" (from the list) "we can purchase" (Exh. "3" - Viva) and therefore did not accept said list (TSN, June 8, 1992, pp. 9-10). The titles ticked off by Mrs. Concio are not the subject of the case at bar except the film ''Maging Sino Ka Man."For further enlightenment, this rejection letter dated January 06, 1992 (Exh "3" - Viva) is hereby quoted:6 January 1992Dear Vic,This is not a very formal business letter I am writing to you as I would like to express my difficulty in recommending the purchase of the three film packages you are offering ABS-CBN.From among the three packages I can only tick off 10 titles we can purchase. Please see attached. I hope you will understand my position. Most of the action pictures in the list do not have big action stars in the cast. They are not for primetime. In line with this I wish to mention that I have not scheduled for telecast several action pictures in out very first contract because of the cheap production value of these movies as well as the lack of big action stars. As a film producer, I am sure you understand what I am trying to say as Viva produces only big action pictures.In fact, I would like to request two (2) additional runs for these movies as I can only schedule them in our non-primetime slots. We have to cover the amount that was paid for these movies because as you very well know that non-primetime advertising rates are very low. These are the unaired titles in the first contract.1. Kontra Persa [sic].2. Raider Platoon.3. Underground guerillas4. Tiger Command5. Boy de Sabog6. Lady Commando7. Batang Matadero8. RebelyonI hope you will consider this request of mine.The other dramatic films have been offered to us before and have been rejected because of the ruling of MTRCB to have them aired at 9:00 p.m. due to their very adult themes.As for the 10 titles I have choosen [sic] from the 3 packages please consider including all the other Viva movies produced last year. I have quite an attractive offer to make.Thanking you and with my warmest regards.(Signed)Charo Santos-ConcioOn February 27, 1992, defendant Del Rosario approached ABS-CBN's Ms. Concio, with a list consisting of 52 original movie titles (i.e. not yet aired on television) including the 14 titles subject of the present case, as well as 104 re-runs (previously aired on television) from which ABS-CBN may choose another 52 titles, as a total of 156 titles, proposing to sell to ABS-CBN airing rights over this package of 52 originals and 52 re-runs for P60,000,000.00 of which P30,000,000.00 will be in cash and P30,000,000.00 worth of television spots (Exh. "4" to "4-C" Viva; "9" -Viva).On April 2, 1992, defendant Del Rosario and ABS-CBN general manager, Eugenio Lopez III, met at the Tamarind Grill Restaurant in Quezon City to discuss the package proposal of Viva. What transpired in that lunch meeting is the subject of conflicting versions. Mr. Lopez testified that he and Mr. Del Rosario allegedly agreed that ABS-CRN was granted exclusive film rights to fourteen (14) films for a total consideration of P36 million; that he allegedly put this agreement as to the price and number of films in a "napkin'' and signed it and gave it to Mr. Del Rosario (Exh. D; TSN, pp. 24-26, 77-78, June 8, 1992). On the other hand, Del Rosario denied having made any agreement with Lopez regarding the 14 Viva films; denied the existence of a napkin in which Lopez wrote something; and insisted that what he and Lopez discussed at the lunch meeting was Viva's film package offer of 104 films (52 originals and 52 re-runs) for a total price of P60 million. Mr. Lopez promising [sic]to make a counter proposal which came in the form of a proposal contract Annex "C" of the complaint (Exh. "1"- Viva; Exh. "C" - ABS-CBN).On April 06, 1992, Del Rosario and Mr. Graciano Gozon of RBS Senior vice-president for Finance discussed the terms and conditions of Viva's offer to sell the 104 films, after the rejection of the same package by ABS-CBN.On April 07, 1992, defendant Del Rosario received through his secretary, a handwritten note from Ms. Concio, (Exh. "5" - Viva), which reads: "Here's the draft of the contract. I hope you find everything in order," to which was attached a draft exhibition agreement (Exh. "C''- ABS-CBN; Exh. "9" - Viva, p. 3) a counter-proposal covering 53 films, 52 of which came from the list sent by defendant Del Rosario and one film was added by Ms. Concio, for a consideration of P35 million. Exhibit "C" provides that ABS-CBN is granted films right to 53 films and contains a right of first refusal to "1992 Viva Films." The said counter proposal was however rejected by Viva's Board of Directors [in the] evening of the same day, April 7, 1992, as Viva would not sell anything less than the package of 104 films for P60 million pesos (Exh. "9" - Viva), and such rejection was relayed to Ms. Concio.On April 29, 1992, after the rejection of ABS-CBN and following several negotiations and meetings defendant Del Rosario and Viva's President Teresita Cruz, in consideration of P60 million, signed a letter of agreement dated April 24, 1992. granting RBS the exclusive right to air 104 Viva-produced and/or acquired films (Exh. "7-A" - RBS; Exh. "4" - RBS) including the fourteen (14) films subject of the present case.4On 27 May 1992, ABS-CBN filed before the RTC a complaint for specific performance with a prayer for a writ of preliminary injunction and/or temporary restraining order against private respondents Republic Broadcasting Corporation5(hereafter RBS ), Viva Production (hereafter VIVA), and Vicente Del Rosario. The complaint was docketed as Civil Case No. Q-92-12309.On 27 May 1992, RTC issued a temporary restraining order6enjoining private respondents from proceeding with the airing, broadcasting, and televising of the fourteen VIVA films subject of the controversy, starting with the filmMaging Sino Ka Man, which was scheduled to be shown on private respondents RBS' channel 7 at seven o'clock in the evening of said date.On 17 June 1992, after appropriate proceedings, the RTC issued anorder7directing the issuance of a writ of preliminary injunction upon ABS-CBN's posting of P35 million bond. ABS-CBN moved for the reduction of the bond,8while private respondents moved for reconsideration of the order and offered to put up a counterbound.9In the meantime, private respondents filed separate answers with counterclaim.10RBS also set up a cross-claim against VIVA..On 3 August 1992, the RTC issued an order11dissolving the writ of preliminary injunction upon the posting by RBS of a P30 million counterbond to answer for whatever damages ABS-CBN might suffer by virtue of such dissolution. However, it reduced petitioner's injunction bond to P15 million as a condition precedent for the reinstatement of the writ of preliminary injunction should private respondents be unable to post a counterbond.At the pre-trial12on 6 August 1992, the parties, upon suggestion of the court, agreed to explore the possibility of an amicable settlement. In the meantime, RBS prayed for and was granted reasonable time within which to put up a P30 million counterbond in the event that no settlement would be reached.As the parties failed to enter into an amicable settlement RBS posted on 1 October 1992 a counterbond, which the RTC approved in its Order of 15 October 1992.13On 19 October 1992, ABS-CBN filed a motion for reconsideration14of the 3 August and 15 October 1992 Orders, which RBS opposed.15On 29 October 1992, the RTC conducted a pre-trial.16Pending resolution of its motion for reconsideration, ABS-CBN filed with the Court of Appeals a petition17challenging the RTC's Orders of 3 August and 15 October 1992 and praying for the issuance of a writ of preliminary injunction to enjoin the RTC from enforcing said orders. The case was docketed as CA-G.R. SP No. 29300.On 3 November 1992, the Court of Appeals issued a temporary restraining order18to enjoin the airing, broadcasting, and televising of any or all of the films involved in the controversy.On 18 December 1992, the Court of Appeals promulgated a decision19dismissing the petition in CA -G.R. No. 29300 for being premature. ABS-CBN challenged the dismissal in a petition for review filed with this Court on 19 January 1993, which was docketed as G.R. No. 108363.In the meantime the RTC received the evidence for the parties in Civil Case No. Q-192-1209. Thereafter, on 28 April 1993, it rendered a decision20in favor of RBS and VIVA and against ABS-CBN disposing as follows:WHEREFORE, under cool reflection and prescinding from the foregoing, judgments is rendered in favor of defendants and against the plaintiff.(1) The complaint is hereby dismissed;(2) Plaintiff ABS-CBN is ordered to pay defendant RBS the following:a) P107,727.00, the amount of premium paid by RBS to the surety which issued defendant RBS's bond to lift the injunction;b) P191,843.00 for the amount of print advertisement for "Maging Sino Ka Man" in various newspapers;c) Attorney's fees in the amount of P1 million;d) P5 million as and by way of moral damages;e) P5 million as and by way of exemplary damages;(3) For defendant VIVA, plaintiff ABS-CBN is ordered to pay P212,000.00 by way of reasonable attorney's fees.(4) The cross-claim of defendant RBS against defendant VIVA is dismissed.(5) Plaintiff to pay the costs.According to the RTC, there was no meeting of minds on the price and terms of the offer. The alleged agreement between Lopez III and Del Rosario was subject to the approval of the VIVA Board of Directors, and said agreement was disapproved during the meeting of the Board on 7 April 1992. Hence, there was no basis for ABS-CBN's demand that VIVA signed the 1992 Film Exhibition Agreement. Furthermore, the right of first refusal under the 1990 Film Exhibition Agreement had previously been exercised per Ms. Concio's letter to Del Rosario ticking off ten titles acceptable to them, which would have made the 1992 agreement an entirely new contract.On 21 June 1993, this Court denied21ABS-CBN's petition for review in G.R. No. 108363, as no reversible error was committed by the Court of Appeals in its challenged decision and the case had "become moot and academic in view of the dismissal of the main action by the courta quoin its decision" of 28 April 1993.Aggrieved by the RTC's decision, ABS-CBN appealed to the Court of Appeals claiming that there was a perfected contract between ABS-CBN and VIVA granting ABS-CBN the exclusive right to exhibit the subject films. Private respondents VIVA and Del Rosario also appealed seeking moral and exemplary damages and additional attorney's fees.In its decision of 31 October 1996, the Court of Appeals agreed with the RTC that the contract between ABS-CBN and VIVA had not been perfected, absent the approval by the VIVA Board of Directors of whatever Del Rosario, it's agent, might have agreed with Lopez III. The appellate court did not even believe ABS-CBN's evidence that Lopez III actually wrote down such an agreement on a "napkin," as the same was never produced in court. It likewise rejected ABS-CBN's insistence on its right of first refusal and ratiocinated as follows:As regards the matter of right of first refusal, it may be true that a Film Exhibition Agreement was entered into between Appellant ABS-CBN and appellant VIVA under Exhibit "A" in 1990, and that parag. 1.4 thereof provides:1.4 ABS-CBN shall have the right of first refusal to the next twenty-four (24) VIVA films for TV telecast under such terms as may be agreed upon by the parties hereto, provided, however, that such right shall be exercised by ABS-CBN within a period of fifteen (15) days from the actual offer in writing (Records, p. 14).[H]owever, it is very clear that said right of first refusal in favor of ABS-CBN shall still be subject to such terms as may be agreed upon by the parties thereto, and that the said right shall be exercised by ABS-CBN within fifteen (15) days from the actual offer in writing.Said parag. 1.4 of the agreement Exhibit "A" on the right of first refusal did not fix the price of the film right to the twenty-four (24) films, nor did it specify the terms thereof. The same are still left to be agreed upon by the parties.In the instant case, ABS-CBN's letter of rejection Exhibit 3 (Records, p. 89) stated that it can only tick off ten (10) films, and the draft contract Exhibit "C" accepted only fourteen (14) films, while parag. 1.4 of Exhibit "A'' speaks of the next twenty-four (24) films.The offer of V1VA was sometime in December 1991 (Exhibits 2, 2-A. 2-B; Records, pp. 86-88; Decision, p. 11, Records, p. 1150), when the first list of VIVA films was sent by Mr. Del Rosario to ABS-CBN. The Vice President of ABS-CBN, Ms. Charo Santos-Concio, sent a letter dated January 6, 1992 (Exhibit 3, Records, p. 89) where ABS-CBN exercised its right of refusal by rejecting the offer of VIVA.. As aptly observed by the trial court, with the said letter of Mrs. Concio of January 6, 1992, ABS-CBN had lost its right of first refusal. And even if We reckon the fifteen (15) day period from February 27, 1992 (Exhibit 4 to 4-C) when another list was sent to ABS-CBN after the letter of Mrs. Concio, still the fifteen (15) day period within which ABS-CBN shall exercise its right of first refusal has already expired.22Accordingly, respondent court sustained the award of actual damages consisting in the cost of print advertisements and the premium payments for the counterbond, there being adequate proof of the pecuniary loss which RBS had suffered as a result of the filing of the complaint by ABS-CBN. As to the award of moral damages, the Court of Appeals found reasonable basis therefor, holding that RBS's reputation was debased by the filing of the complaint in Civil Case No. Q-92-12309 and by the non-showing of the film "Maging Sino Ka Man." Respondent court also held that exemplary damages were correctly imposed by way of example or correction for the public good in view of the filing of the complaint despite petitioner's knowledge that the contract with VIVA had not been perfected, It also upheld the award of attorney's fees, reasoning that with ABS-CBN's act of instituting Civil Case No, Q-92-1209, RBS was "unnecessarily forced to litigate." The appellate court, however, reduced the awards of moral damages to P2 million, exemplary damages to P2 million, and attorney's fees to P500, 000.00.On the other hand, respondent Court of Appeals denied VIVA and Del Rosario's appeal because it was "RBS and not VIVA which was actually prejudiced when the complaint was filed by ABS-CBN."Its motion for reconsideration having been denied, ABS-CBN filed the petition in this case, contending that the Court of Appeals gravely erred inI. . . RULING THAT THERE WAS NO PERFECTED CONTRACT BETWEEN PETITIONER AND PRIVATE RESPONDENT VIVA NOTWITHSTANDING PREPONDERANCE OF EVIDENCE ADDUCED BY PETITIONER TO THE CONTRARY.II. . . IN AWARDING ACTUAL AND COMPENSATORY DAMAGES IN FAVOR OF PRIVATE RESPONDENT RBS.III. . . IN AWARDING MORAL AND EXEMPLARY DAMAGES IN FAVOR OF PRIVATE RESPONDENT RBS.IV. . . IN AWARDING ATTORNEY'S FEES IN FAVOR OF RBS.ABS-CBN claims that it had yet to fully exercise its right of first refusal over twenty-four titles under the 1990 Film Exhibition Agreement, as it had chosen only ten titles from the first list. It insists that we give credence to Lopez's testimony that he and Del Rosario met at the Tamarind Grill Restaurant, discussed the terms and conditions of the second list (the 1992 Film Exhibition Agreement) and upon agreement thereon, wrote the same on a paper napkin. It also asserts that the contract has already been effective, as the elements thereof, namely, consent, object, and consideration were established. It then concludes that the Court of Appeals' pronouncements were not supported by law and jurisprudence, as per our decision of 1 December 1995 inLimketkai Sons Milling, Inc. v. Court of Appeals,23which citedToyota Shaw, Inc. v. Court of Appeals,24Ang Yu Asuncion v. Court of Appeals,25andVillonco Realty Company v. Bormaheco. Inc.26Anent the actual damages awarded to RBS, ABS-CBN disavows liability therefor. RBS spent for the premium on the counterbond of its own volition in order to negate the injunction issued by the trial court after the parties had ventilated their respective positions during the hearings for the purpose. The filing of the counterbond was an option available to RBS, but it can hardly be argued that ABS-CBN compelled RBS to incur such expense. Besides, RBS had another available option,i.e., move for the dissolution or the injunction; or if it was determined to put up a counterbond, it could have presented a cash bond. Furthermore under Article 2203 of the Civil Code, the party suffering loss or injury is also required to exercise the diligence of a good father of a family to minimize the damages resulting from the act or omission. As regards the cost of print advertisements, RBS had not convincingly established that this was a loss attributable to the non showing "Maging Sino Ka Man"; on the contrary, it was brought out during trial that with or without the case or the injunction, RBS would have spent such an amount to generate interest in the film.ABS-CBN further contends that there was no clear basis for the awards of moral and exemplary damages. The controversy involving ABS-CBN and RBS did not in any way originate from business transaction between them. The claims for such damages did not arise from any contractual dealings or from specific acts committed by ABS-CBN against RBS that may be characterized as wanton, fraudulent, or reckless; they arose by virtue only of the filing of the complaint, An award of moral and exemplary damages is not warranted where the record is bereft of any proof that a party acted maliciously or in bad faith in filing an action.27In any case, free resort to courts for redress of wrongs is a matter of public policy. The law recognizes the right of every one to sue for that which he honestly believes to be his right without fear of standing trial for damages where by lack of sufficient evidence, legal technicalities, or a different interpretation of the laws on the matter, the case would lose ground.28One who makes use of his own legal right does no injury.29If damage results front the filing of the complaint, it isdamnum absque injuria.30Besides, moral damages are generally not awarded in favor of a juridical person, unless it enjoys a good reputation that was debased by the offending party resulting in social humiliation.31As regards the award of attorney's fees, ABS-CBN maintains that the same had no factual, legal, or equitable justification. In sustaining the trial court's award, the Court of Appeals acted in clear disregard of the doctrines laid down inBuan v.Camaganacan32that the text of the decision should state the reason why attorney's fees are being awarded; otherwise, the award should be disallowed. Besides, no bad faith has been imputed on, much less proved as having been committed by, ABS-CBN. It has been held that "where no sufficient showing of bad faith would be reflected in a party' s persistence in a case other than an erroneous conviction of the righteousness of his cause, attorney's fees shall not be recovered as cost."33On the other hand, RBS asserts that there was no perfected contract between ABS-CBN and VIVA absent any meeting of minds between them regarding the object and consideration of the alleged contract. It affirms that the ABS-CBN's claim of a right of first refusal was correctly rejected by the trial court. RBS insist the premium it had paid for the counterbond constituted a pecuniary loss upon which it may recover. It was obliged to put up the counterbound due to the injunction procured by ABS-CBN. Since the trial court found that ABS-CBN had no cause of action or valid claim against RBS and, therefore not entitled to the writ of injunction, RBS could recover from ABS-CBN the premium paid on the counterbond. Contrary to the claim of ABS-CBN, the cash bond would prove to be more expensive, as the loss would be equivalent to the cost of money RBS would forego in case the P30 million came from its funds or was borrowed from banks.RBS likewise asserts that it was entitled to the cost of advertisements for the cancelled showing of the film "Maging Sino Ka Man" because the print advertisements were put out to announce the showing on a particular day and hour on Channel 7,i.e., in its entirety at one time, not a series to be shown on a periodic basis. Hence, the print advertisement were good and relevant for the particular date showing, and since the film could not be shown on that particular date and hour because of the injunction, the expenses for the advertisements had gone to waste.As regards moral and exemplary damages, RBS asserts that ABS-CBN filed the case and secured injunctions purely for the purpose of harassing and prejudicing RBS. Pursuant then to Article 19 and 21 of the Civil Code, ABS-CBN must be held liable for such damages.CitingTolentino,34damages may be awarded in cases of abuse of rights even if the act done is not illicit and there is abuse of rights were plaintiff institutes and action purely for the purpose of harassing or prejudicing the defendant.In support of its stand that a juridical entity can recover moral and exemplary damages, private respondents RBScited People v.Manero,35where it was stated that such entity may recover moral and exemplary damages if it has a good reputation that is debased resulting in social humiliation. it then ratiocinates; thus:There can be no doubt that RBS' reputation has been debased by ABS-CBN's acts in this case. When RBS was not able to fulfill its commitment to the viewing public to show the film "Maging Sino Ka Man" on the scheduled dates and times (and on two occasions that RBS advertised), it suffered serious embarrassment and social humiliation. When the showing was canceled, late viewers called up RBS' offices and subjected RBS to verbal abuse ("Announce kayo nang announce, hindi ninyo naman ilalabas," "nanloloko yata kayo") (Exh. 3-RBS, par. 3). This alone was not something RBS brought upon itself. it was exactly what ABS-CBN had planned to happen.The amount of moral and exemplary damages cannot be said to be excessive. Two reasons justify the amount of the award.The first is that the humiliation suffered by RBS is national extent. RBS operations as a broadcasting company is [sic] nationwide. Its clientele, like that of ABS-CBN, consists of those who own and watch television. It is not an exaggeration to state, and it is a matter of judicial notice that almost every other person in the country watches television. The humiliation suffered by RBS is multiplied by the number of televiewers who had anticipated the showing of the film "Maging Sino Ka Man" on May 28 and November 3, 1992 but did not see it owing to the cancellation. Added to this are the advertisers who had placed commercial spots for the telecast and to whom RBS had a commitment in consideration of the placement to show the film in the dates and times specified.The second is that it is a competitor that caused RBS to suffer the humiliation. The humiliation and injury are far greater in degree when caused by an entity whose ultimate business objective is to lure customers (viewers in this case) away from the competition.36For their part, VIVA and Vicente del Rosario contend that the findings of fact of the trial court and the Court of Appeals do not support ABS-CBN's claim that there was a perfected contract. Such factual findings can no longer be disturbed in this petition for review under Rule 45, as only questions of law can be raised, not questions of fact. On the issue of damages and attorneys fees, they adopted the arguments of RBS.The key issues for our consideration are (1) whether there was a perfected contract between VIVA and ABS-CBN, and (2) whether RBS is entitled to damages and attorney's fees. It may be noted that the award of attorney's fees of P212,000 in favor of VIVA is not assigned as another error.I.The first issue should be resolved against ABS-CBN. A contract is a meeting of minds between two persons whereby one binds himself to give something or to render some service to another37for a consideration. there is no contract unless the following requisites concur: (1) consent of the contracting parties; (2) object certain which is the subject of the contract; and (3) cause of the obligation, which is established.38A contract undergoes three stages:(a) preparation, conception, or generation, which is the period of negotiation and bargaining, ending at the moment of agreement of the parties;(b) perfection or birth of the contract, which is the moment when the parties come to agree on the terms of the contract; and(c) consummation or death, which is the fulfillment or performance of the terms agreed upon in the contract.39Contracts that are consensual in nature are perfected upon mere meeting of the minds, Once there is concurrence between the offer and the acceptance upon the subject matter, consideration, and terms of payment a contract is produced. The offer must be certain. To convert the offer into a contract, the acceptance must be absolute and must not qualify the terms of the offer; it must be plain, unequivocal, unconditional, and without variance of any sort from the proposal. A qualified acceptance, or one that involves a new proposal, constitutes a counter-offer and is a rejection of the original offer. Consequently, when something is desired which is not exactly what is proposed in the offer, such acceptance is not sufficient to generate consent because any modification or variation from the terms of the offer annuls the offer.40When Mr. Del Rosario of VIVA met with Mr. Lopez of ABS-CBN at the Tamarind Grill on 2 April 1992 to discuss the package of films, said package of 104 VIVA films was VIVA's offer to ABS-CBN to enter into a new Film Exhibition Agreement. But ABS-CBN, sent, through Ms. Concio, a counter-proposal in the form of a draft contract proposing exhibition of 53 films for a consideration of P35 million. This counter-proposal could be nothing less than the counter-offer of Mr. Lopez during his conference with Del Rosario at Tamarind Grill Restaurant. Clearly, there was no acceptance of VIVA's offer, for it was met by a counter-offer which substantially varied the terms of the offer.ABS-CBN's reliance inLimketkai Sons Milling, Inc. v.Court ofAppeals41andVillonco Realty Company v.Bormaheco, Inc.,42is misplaced. In these cases, it was held that an acceptance may contain a request for certain changes in the terms of the offer and yet be a binding acceptance as long as "it is clear that the meaning of the acceptance is positively and unequivocally to accept the offer, whether such request is granted or not." This ruling was, however, reversed in the resolution of 29 March 1996,43which ruled that the acceptance of all offer must be unqualified and absolute,i.e., it "must be identical in all respects with that of the offer so as to produce consent or meeting of the minds."On the other hand, in Villonco,citedin Limketkai, the alleged changes in the revised counter-offer were not material but merely clarificatory of what had previously been agreed upon. Itcitedthe statement inStuart v.Franklin Life Insurance Co.44that "a vendor's change in a phrase of the offer to purchase, which change does not essentially change the terms of the offer, does not amount to a rejection of the offer and the tender of a counter-offer."45However, when any of the elements of the contract is modified upon acceptance, such alteration amounts to a counter-offer.In the case at bar, ABS-CBN made no unqualified acceptance of VIVA's offer. Hence, they underwent a period of bargaining. ABS-CBN then formalized its counter-proposals or counter-offer in a draft contract, VIVA through its Board of Directors, rejected such counter-offer, Even if it be concededarguendothat Del Rosario had accepted the counter-offer, the acceptance did not bind VIVA, as there was no proof whatsoever that Del Rosario had the specific authority to do so.Under Corporation Code,46unless otherwise provided by said Code, corporate powers, such as the power; to enter into contracts; are exercised by the Board of Directors. However, the Board may delegate such powers to either an executive committee or officials or contracted managers. The delegation, except for the executive committee, must be for specific purposes,47Delegation to officers makes the latter agents of the corporation; accordingly, the general rules of agency as to the bindings effects of their acts wouldapply.48For such officers to be deemed fully clothed by the corporation to exercise a power of the Board, the latter must specially authorize them to do so. That Del Rosario did not have the authority to accept ABS-CBN's counter-offer was best evidenced by his submission of the draft contract to VIVA's Board of Directors for the latter's approval. In any event, there was between Del Rosario and Lopez III no meeting of minds. The following findings of the trial court are instructive:A number of considerations militate against ABS-CBN's claim that a contract was perfected at that lunch meeting on April 02, 1992 at the Tamarind Grill.FIRST, Mr. Lopez claimed that what was agreed upon at the Tamarind Grill referred to the price and the number of films, which he wrote on a napkin. However, Exhibit "C" containsnumerous provisions which, were not discussed at the Tamarind Grill, if Lopez testimony was to be believed nor could they have been physically written on a napkin. There was even doubt as to whether it was a paper napkin or a cloth napkin. In short what were written in Exhibit "C'' were not discussed, and therefore could not have been agreed upon, by the parties. How then could this court compel the parties to sign Exhibit "C" when the provisions thereof were not previously agreed upon?SECOND, Mr. Lopez claimed that what was agreed upon as the subject matter of the contract was 14 films. The complaint in fact prays for delivery of 14 films. But Exhibit "C" mentions 53 films as its subject matter. Which is which If Exhibits "C" reflected the true intent of the parties, then ABS-CBN's claim for 14 films in its complaint is false or if what it alleged in the complaint is true, then Exhibit "C" did not reflect what was agreed upon by the parties. This underscores the fact that there was no meeting of the minds as to the subject matter of the contracts, so as to preclude perfection thereof. For settled is the rule that there can be no contract where there is no object which is its subject matter (Art. 1318, NCC).THIRD, Mr. Lopez [sic] answer to question 29 of his affidavit testimony (Exh. "D") states:We were able to reach an agreement. VIVA gave us the exclusive license to show these fourteen (14) films, and we agreed to pay Viva the amount of P16,050,000.00 as well as grant Viva commercial slots worth P19,950,000.00. We had already earmarked this P16, 050,000.00.which gives a total consideration of P36 million (P19,950,000.00 plus P16,050,000.00. equals P36,000,000.00).On cross-examination Mr. Lopez testified:Q. What was written in this napkin?A. The total price, the breakdown the known Viva movies, the 7 blockbuster movies and the other 7 Viva movies because the price was broken down accordingly. The none [sic] Viva and the seven other Viva movies and the sharing between the cash portion and the concerned spot portion in the total amount of P35 million pesos.Now, which is which? P36 million or P35 million? This weakens ABS-CBN's claim.FOURTH. Mrs. Concio, testifying for ABS-CBN stated that she transmitted Exhibit "C" to Mr. Del Rosario with a handwritten note, describing said Exhibit "C" as a "draft." (Exh. "5" - Viva; tsn pp. 23-24 June 08, 1992). The said draft has a well defined meaning.Since Exhibit "C" is only a draft, or a tentative, provisional or preparatory writing prepared for discussion, the terms and conditions thereof could not have been previously agreed upon by ABS-CBN and Viva Exhibit "C'' could not therefore legally bind Viva, not having agreed thereto. In fact, Ms. Concio admitted that the terms and conditions embodied in Exhibit "C" were prepared by ABS-CBN's lawyers and there was no discussion on said terms and conditions. . . .As the parties had not yet discussed the proposed terms and conditions in Exhibit "C," and there was no evidence whatsoever that Viva agreed to the terms and conditions thereof, said document cannot be a binding contract. The fact that Viva refused to sign Exhibit "C" reveals only two [sic] well that it did not agree on its terms and conditions, and this court has no authority to compel Viva to agree thereto.FIFTH. Mr. Lopez understand [sic] that what he and Mr. Del Rosario agreed upon at the Tamarind Grill was only provisional, in the sense that it was subject to approval by the Board of Directors of Viva. He testified:Q. Now, Mr. Witness, and after that Tamarind meeting ... the second meeting wherein you claimed that you have the meeting of the minds between you and Mr. Vic del Rosario, what happened?A. Vic Del Rosario was supposed to call us up and tell us specifically the result of the discussion with the Board of Directors.Q. And you are referring to the so-called agreement which you wrote in [sic] a piece of paper?A. Yes, sir.Q. So, he was going to forward that to the board of Directors for approval?A. Yes, sir. (Tsn, pp. 42-43, June 8, 1992)Q. Did Mr. Del Rosario tell you that he will submit it to his Board for approval?A. Yes, sir. (Tsn, p. 69, June 8, 1992).The above testimony of Mr. Lopez shows beyond doubt that he knew Mr. Del Rosario had no authority to bind Viva to a contract with ABS-CBN until and unless its Board of Directors approved it. The complaint, in fact, alleges that Mr. Del Rosario "is the Executive Producer of defendant Viva" which "is a corporation." (par. 2, complaint). As a mere agent of Viva, Del Rosario could not bind Viva unless what he did is ratified by its Board of Directors. (Vicente vs.Geraldez, 52 SCRA 210;Arnold vs.Willetsand Paterson, 44 Phil. 634). As a mere agent, recognized as such by plaintiff, Del Rosario could not be held liable jointly and severally with Viva and his inclusion as party defendant has no legal basis. (Salonga vs.Warner Barner[sic] , COLTA , 88 Phil. 125; Salmon vs. Tan, 36 Phil. 556).The testimony of Mr. Lopez and the allegations in the complaint are clear admissions that what was supposed to have been agreed upon at the Tamarind Grill between Mr. Lopez and Del Rosario was not a binding agreement. It is as it should be because corporate power to enter into a contract is lodged in the Board of Directors. (Sec. 23, Corporation Code). Without such board approval by the Viva board, whatever agreement Lopez and Del Rosario arrived at could not ripen into a valid contract binding upon Viva (Yao Ka Sin Trading vs.Court of Appeals, 209 SCRA 763). The evidence adduced shows that the Board of Directors of Viva rejected Exhibit "C" and insisted that the film package for 140 films be maintained (Exh. "7-1" - Viva ).49The contention that ABS-CBN had yet to fully exercise its right of first refusal over twenty-four films under the 1990 Film Exhibition Agreement and that the meeting between Lopez and Del Rosario was a continuation of said previous contract is untenable. As observed by the trial court, ABS-CBN right of first refusal had already been exercised when Ms. Concio wrote to VIVA ticking off ten films, Thus:[T]he subsequent negotiation with ABS-CBN two (2) months after this letter was sent, was for an entirely different package. Ms. Concio herself admitted on cross-examination to having used or exercised the right of first refusal. She stated that the list was not acceptable and was indeed not accepted by ABS-CBN, (TSN, June 8, 1992, pp. 8-10). Even Mr. Lopez himself admitted that the right of the first refusal may have been already exercised by Ms. Concio (as she had). (TSN, June 8, 1992, pp. 71-75). Del Rosario himself knew and understand [sic] that ABS-CBN has lost its rights of the first refusal when his list of 36 titles were rejected (Tsn, June 9, 1992, pp. 10-11)50IIHowever, we find for ABS-CBN on the issue of damages. We shall first take up actual damages. Chapter 2, Title XVIII, Book IV of the Civil Code is the specific law on actual or compensatory damages. Except as provided by law or by stipulation, one is entitled to compensation for actual damages only for such pecuniary loss suffered by him as he has duly proved.51The indemnification shall comprehend not only the value of the loss suffered, but also that of the profits that the obligee failed to obtain.52In contracts and quasi-contracts the damages which may be awarded are dependent on whether the obligor acted with good faith or otherwise, It case of good faith, the damages recoverable are those which are the natural and probable consequences of the breach of the obligation and which the parties have foreseen or could have reasonably foreseen at the time of the constitution of the obligation. If the obligor acted with fraud, bad faith, malice, or wanton attitude, he shall be responsible for all damages which may be reasonably attributed to the non-performance of the obligation.53In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of, whether or not such damages has been foreseen or could have reasonably been foreseen by the defendant.54Actual damages may likewise be recovered for loss or impairment of earning capacity in cases of temporary or permanent personal injury, or for injury to the plaintiff's business standing or commercial credit.55The claim of RBS for actual damages did not arise from contract, quasi-contract, delict, or quasi-delict. It arose from the fact of filing of the complaint despite ABS-CBN's alleged knowledge of lack of cause of action. Thus paragraph 12 of RBS's Answer with Counterclaim and Cross-claim under the heading COUNTERCLAIM specifically alleges:12. ABS-CBN filed the complaint knowing fully well that it has no cause of action RBS. As a result thereof, RBS suffered actual damages in the amount of P6,621,195.32.56Needless to state the award of actual damages cannot be comprehended under the above law on actual damages. RBS could only probably take refuge under Articles 19, 20, and 21 of the Civil Code, which read as follows:Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for tile same.Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.It may further be observed that in cases where a writ of preliminary injunction is issued, the damages which the defendant may suffer by reason of the writ are recoverable from the injunctive bond.57In this case, ABS-CBN had not yet filed the required bond; as a matter of fact, it asked for reduction of the bond and even went to the Court of Appeals to challenge the order on the matter, Clearly then, it was not necessary for RBS to file a counterbond. Hence, ABS-CBN cannot be held responsible for the premium RBS paid for the counterbond.Neither could ABS-CBN be liable for the print advertisements for "Maging Sino Ka Man" for lack of sufficient legal basis. The RTC issued a temporary restraining order and later, a writ of preliminary injunction on the basis of its determination that there existed sufficient ground for the issuance thereof. Notably, the RTC did not dissolve the injunction on the ground of lack of legal and factual basis, but because of the plea of RBS that it be allowed to put up a counterbond.As regards attorney's fees, the law is clear that in the absence of stipulation, attorney's fees may be recovered as actual or compensatory damages under any of the circumstances provided for in Article 2208 of the Civil Code.58The general rule is that attorney's fees cannot be recovered as part of damages because of the policy that no premium should be placed on the right to litigate.59They are not to be awarded every time a party wins a suit. The power of the court to award attorney's fees under Article 2208 demands factual, legal, and equitable justification.60Even when claimant is compelled to litigate with third persons or to incur expenses to protect his rights, still attorney's fees may not be awarded where no sufficient showing of bad faith could be reflected in a party's persistence in a case other than erroneous conviction of the righteousness of his cause.61As to moral damages the law is Section 1, Chapter 3, Title XVIII, Book IV of the Civil Code. Article 2217 thereof defines what are included in moral damages, while Article 2219 enumerates the cases where they may be recovered, Article 2220 provides that moral damages may be recovered in breaches of contract where the defendant acted fraudulently or in bad faith. RBS's claim for moral damages could possibly fall only under item (10) of Article 2219, thereof which reads:(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.Moral damages are in the category of an award designed to compensate the claimant for actual injury suffered. and not to impose a penalty on the wrongdoer.62The award is not meant to enrich the complainant at the expense of the defendant, but to enable the injured party to obtain means, diversion, or amusements that will serve to obviate then moral suffering he has undergone. It is aimed at the restoration, within the limits of the possible, of the spiritualstatus quo ante, and should be proportionate to the suffering inflicted.63Trial courts must then guard against the award of exorbitant damages; they should exercise balanced restrained and measured objectivity to avoid suspicion that it was due to passion, prejudice, or corruption on the part of the trial court.64The award of moral damages cannot be granted in favor of a corporation because, being an artificial person and having existence only in legal contemplation, it has no feelings, no emotions, no senses, It cannot, therefore, experience physical suffering and mental anguish, which call be experienced only by one having a nervous system.65The statement inPeople v.Manero66andMambulao Lumber Co.v.PNB67that a corporation may recover moral damages if it "has a good reputation that is debased, resulting in social humiliation" is anobiter dictum. On this score alone the award for damages must be set aside, since RBS is a corporation.The basic law on exemplary damages is Section 5, Chapter 3, Title XVIII, Book IV of the Civil Code. These are imposed by way of example or correction for the public good, in addition to moral, temperate, liquidated or compensatory damages.68They are recoverable in criminal cases as part of the civil liability when the crime was committed with one or more aggravating circumstances;69in quasi-contracts, if the defendant acted with gross negligence;70and in contracts and quasi-contracts, if the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner.71It may be reiterated that the claim of RBS against ABS-CBN is not based on contract, quasi-contract, delict, or quasi-delict, Hence, the claims for moral and exemplary damages can only be based on Articles 19, 20, and 21 of the Civil Code.The elements of abuse of right under Article 19 are the following: (1) the existence of a legal right or duty, (2) which is exercised in bad faith, and (3) for the sole intent of prejudicing or injuring another. Article 20 speaks of the general sanction for all other provisions of law which do not especially provide for their own sanction; while Article 21 deals with actscontra bonus mores, and has the following elements; (1) there is an act which is legal, (2) but which is contrary to morals, good custom, public order, or public policy, and (3) and it is done with intent to injure.72Verily then, malice or bad faith is at the core of Articles 19, 20, and 21. Malice or bad faith implies a conscious and intentional design to do a wrongful act for a dishonest purpose or moral obliquity.73Such must be substantiated by evidence.74There is no adequate proof that ABS-CBN was inspired by malice or bad faith. It was honestly convinced of the merits of its cause after it had undergone serious negotiations culminating in its formal submission of a draft contract. Settled is the rule that the adverse result of an action does notper semake the action wrongful and subject the actor to damages, for the law could not have meant to impose a penalty on the right to litigate. If damages result from a person's exercise of a right, it isdamnum absque injuria.75WHEREFORE, the instant petition is GRANTED. The challenged decision of the Court of Appeals in CA-G.R. CV No, 44125 is hereby REVERSED except as to unappealed award of attorney's fees in favor of VIVA Productions, Inc. No pronouncement as to costs. SO ORDERED.G.R. No. 119380 August 19, 1999PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.FEDERICO LOPEZ @ AMBOY LOPEZ,accused-appellant.MENDOZA,J.:This is an appeal from the decision1of the Regional Trial Court of Pangasinan (Branch 52), finding accused-appellant guilty of two counts of murder and one count of frustrated murder and ordering him to pay a total of P204,300.00 in damages.1wphi1.ntThe Information2against accused-appellant charged:That on or about the 15th day of November, 1991, in the evening, at Brgy. Nancalabasaan, municipality of Umingan, province of Pangasinan, New Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused together with one John Doe, whose identity has not yet been established, armed with a short firearm, with intent to kill, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot ROGELIO SELDERA and RODOLFO PADAPAT which caused their immediate death and on the same occasion and with treachery and evident premeditation wound MARIO SELDERA on his breast to the damage and prejudice of the heirs of Rogelio Seldera and Rodolfo Padapat and also to the damage and prejudice of said Mario Seldera.The prosecution presented evidence showing the following: At around 6:00 in the evening of November 15, 1991, Mario Seldera, 11, his father Rogelio Seldera, and his cousin Rodolfo Padapat worked in the riceland of a certain Lagula in Barangay Nancalabasaan, Umingan, Pangasinan. It was harvest time and the three were hired to bundle the palays stalks which had been cut. As it was a moonlit night, the three worked in the field until around 9:00 when they started for home taking a trail alongside the Banila river. The trail is about two feet wide only, and so the three walked along the trail single file with Rogelio, being the oldest, leading the way, followed by his son Mario and by Rodolfo who was last. As they reached a sloping portion in the trail, accused-appellant Federico Lopez appeared armed with a shotgun. Accused-appellant had a companion, a dark man. He was unarmed.3Without uttering a word, accused-appellant fired at the three, who slumped forward, face down. Accused-appellant's companion went near the bodies of the victims and rolled them over with his foot. Satisfied that the victims were dead, accused-appellant and his companion left.4However, Mario, the youngest in the group, was not killed, although he had been wounded in the back. As soon as accused-appellant and his companion had left, Mario stood up and, crying, he walked to the house of his uncle, Alfredo Padapat, the father of Rodolfo, and reported the matter. He decided not to go home as accused-appellant and his companion went in the direction of their house. Mario's mother was fetched from their house and told what had happened to Rogelio and Rodolfo. The three then reported the incident to the barangay captain who lost no time in accompanying them to the police in Umingan, Pangasinan.5Mario was investigated by CPL Jose Almerol. Afterwards, he was taken to the Umingan Medicare Hospital where he was treated by Dr. Suller-Santos. The boy suffered three gunshot wounds on the back, right side, each wound measuring about .5 x 1 cm. The wounds were located vertically, the first about three centimeters from the second and the latter about two centimeters from the third.6Dr. Santos issued a medical certification (Exh. E) and referred Mario to the Eastern Pangasinan District Hospital for x-ray examination.Mario positively identified accused-appellant as the assailant. He testified that accused-appellant wore a white, long-sleeved shirt, blue jeans and white slippers, while his companion had a black t-shirt, black jeans and brown slippers on.7He was able to recognize accused-appellant and notice the type and color of the latter's clothes and those of the latter's companions because the moon was brightly shining. He knew accused-appellant very well, because the latter used to frequent their house in Nancalabasaan to play cards with his father. In addition, Mario used to buy cigarettes from accused-appellant's store. As to the gun used, he stated that it was similar to those used by security guards. When asked whether his father and accused-appellant had a quarrel on November 15, 1991, Mario said he did not know.8Dr. Thelma C. Busto, the rural health physician of Umingan, Pangasinan, examined the bodies of Rogelio Seldera and Rodolfo Padapat on November 16, 1991.Dr. Busto described Rogelio's wounds as follows:91. Gunshot wound frontal area of head as point of entrance with exit at the occipital area, . . . thru and thru.2. Multiple gunshot wounds in the chest and neck (9).Herpost-mortemreport on Rodolfo Padapat stated:10Gunshot wound in the head right parieted area of head as entrance, no exit.According to Dr. Busto's reports, the cause of death of the victims was cerebral hemorrhage and cardiorespiratory arrest secondary to gunshot wounds. Testifying, she said that the gunshot wounds were alike in size and nature. Although she could not tell the type of firearm used nor determine the trajectory of the wounds, she said the wounds could have been caused by a shotgun.11Leonida Seldera, widow of the deceased Rogelio, and Alfredo Padapat, father of Rodolfo, testified on the civil aspect of the case. The prosecution was precluded from inquiring from these witnesses about events which transpired in the evening of November 15, 1991 because they were present during the testimony in-chief of Mario Seldera. The defense counsel moved for their exclusion but the prosecution manifested that they would only testify with regard to the civil aspect of the case.Accused-appellant's defense was alibi. He claimed that at around 5:00 in the afternoon of November 15, 1991, he was in the house of his uncle, Asterio Sonaco, in Caurdanetaan, another barangay of Umingan in Pangasinan, about three kilometers from Nancalabasaan. He had a round of drinks with four friends12over a dish of dog meat. At 11:00 that night, the party broke up and accused-appellant went home. He claimed that it was dark that night and that during the party, they used a lamp for illumination.13Accused-appellant stated that he has no previous quarrel with the two deceased nor with Mario Seldera. Nor had he been to the house of Rogelio Seldera. As to the clothes he wore on the night of November 15, 1991, he claimed he had a pair of maong pants and a t-shirt on, though he could not remember the color of the latter.14On cross-examination, accused-appellant admitted that he was known as "Amboy" Lopez and that although a barriomate, Rodrigo Lopez, was also called "Amboy," the latter was known more as "Thunder" Lopez. He also said that he had a farm in Nancalabasaan but he allegedly had not gone to the barangay proper as he only pass by the eastern part thereof.15In his counter-affidavit,16accused-appellant did not mention anything about cooking dog meat during the party in Asterio Sonaco's house on November 15, 1991 and that he went home at 8:00 in the evening. Accused-appellant gave no explanation why in his testimony in court he said he went home at 11:00 in the evening and that they killed a dog and made its meat into a dish.17The defense presented Daniel Fortunato and Mario Sonaco to corroborate accused-appellant's testimony on the events which transpired in the evening of November 15, 1991. Daniel Fortunato testified that he is a barangay councilman of Caurdanetaan, Umingan, Pangasinan. He claimed that from 4:00 in the afternoon to 11:00 in the evening of November 15, 1991, he was with accused-appellant in a party where there were about thirteen18other people, drinking gin and eating cooked dog meat. Fortunato said he and Mario Sonaco helped accused-appellant home as the latter was too drunk. Accused-appellant was allegedly received by his wife.19On cross-examination Fortunato admitted that he was not always watching accused-appellant during the party and that it was possible that the latter may have slipped out. With regard to the distance of Caurdanetaan to the Banila river, where the incident happened, Fortunato estimated it to be about 1 1/2 kilometers, which can be covered in 20 minutes by walking and in about 11 minutes by running. Fortunato testified that accused-appellant had the same height and body build as Rodrigo "Thunder" Lopez although the latter was darker.20Mario Sonaco, for his part, claimed that there were less than ten12people present in the house of his brother, Asterio Sonaco, in the evening of November 15, 1991. However, he corroborated Fortunato's testimony that he and Fortunato took accused-appellant home at 11:00 o'clock that night because the latter was drunk.22On cross-examination, Sonaco admitted that accused-appellant is his nephew.23He estimated that accused-appellant's house was less than two kilometers from the Banila river. He reiterated that by taking the barangay road, the distance could be covered in 30 minutes on foot but if one runs or uses the shorter route through the ricefields, the travel time would be less.24The defense also presented Juanito Costales, barangay captain of Caurdanetaan, who testified that around 12:00 midnight of November 15, 1991, three policemen went to his house to inform him that accused-appellant was a suspect in a killing in the neighboring barangay of Nancalabasaan. He said he accompanied the authorities to accused-appellant's house and that when the latter came out, he smelled of liquor. When asked by the policemen where he had been, accused-appellant allegedly answered he had been to a drinking party held that afternoon. Apparently finding nothing unusual, Costales and the policemen left.25Costales corroborated Mario Sonaco's testimony that accused-appellant's house is less than two kilometers from the scene of the crime. When asked about the condition of the night on November 15, 1991, he stated that it was so dark that the policemen had to use flashlights.26Corroborating accused-appellant's claim that it was pitch dark on the evening of November 15, 1991, Lorna Gonzales, a resident of Barangay Nancalabasaan, whose house is about 100 meters from the Seldera household, testified that at around 9:00 in the evening of that day, she heard some wailing and weeping in the house of the Selderas, and that she and her husband learned that Rogelio Seldera had died. However, they did not go out of their house because it was allegedly very dark, and she was afraid that her husband might be implicated in the killing. On cross-examination, Gonzales disclosed that her house is surrounded by big camachile trees. When asked whether these could obstruct the light from the moon, she only said: "It [was] dark, sir."27On January 20, 1995, the trial court rendered judgment, the dispositive portion of which reads:28WHEREFORE, in virtue of the foregoing disquisitions accused Federico Lopez @ Amboy Lopez is hereby declared GUILTY of the crime ofDouble Murder With Frustrated Murderbeyond reasonable doubt and is hereby sentenced to a penalty ofReclusion Perpetuarelative to the treacherous killing of Rogelio Seldera, and to pay the heirs of the late Seldera the sum of Fifty Thousand Pesos (P50,000.00) as compensatory damages, Thirty Thousand (P30,000.00) as moral damages, likewise sentences the same accused Amboy Lopez of the penalty ofReclusion Perpetuafor the treacherous killing of Rodolfo Padapat, and to pay the heirs of the late Padapat the sum of Fifty Thousand Pesos (P50,000.00) as compensatory damages, and the sum of Thirty Thousand Pesos (P30,000.00) as moral damages, and to pay civil liability or actual expenses incurred during the wake and burial and other expenses incurred relative to the interment of both deceased in the amount of Fourteen Thousand Pesos (P14,000.00) payable to the heirs of both victims, and finally sentences accused Amboy Lopez for the crime ofFrustrated Homicidefor the injuries sustained by victim Mario Seldera, with a penalty ofPrision Mayorfrom six (6) years and one (1) day to twelve (12) years, and to pay the widow of the late Rogelio Seldera the sum of Twenty Thousand Pesos (P20,000.00) as moral damages, Ten Thousand Pesos (P10,000.00) exemplary damages, and P300.00 as actual damages in the form of medical expenses. With costde officio. Bailbond cancelled.SO ORDERED.In this appeal, accused-appellant alleges that:29ASSIGNMENT OF ERRORS(1) THE HONORABLE COURT ERRED IN GIVING FULL FAITH AND CREDIT TO THE TESTIMONY OF MARIO [S]ELDERA;(2) THE HONORABLE [COURT] ERRED IN NOT CONSIDERING THE TESTIMONIES OF DEFENSE WITNESSES LORNA GONZALES AND BARANGAY CAPTAIN JUANITO COSTALES AS TO THE CONDITION OF THE NIGHT;(3) THAT THE HONORABLE COURT ERRED IN NOT CONSIDERING THE DEFENSE OF ALIBI PUT UP BY THE ACCUSED;(4) THE HONORABLE COURT ERRED IN NOT CONSIDERING THE EXISTENCE OF TWO PERSONS SPORTING THE NAME OF AMBOY LOPEZ.First. Accused-appellant questions the credibility of Mario Seldera. It is unbelievable, he contends, that this witness observed even minute details, such as the length and color of the shirts worn by accused-appellant and his companion, the color of their slippers, and the type of firearm used by accused-appellant, considering that the shooting took place suddenly and unexpectedly.30The contention has no merit. As the Solicitor General points out, Mario Seldera went through a harrowing experience. In fact, he suffered three gunshot wounds and was given up for dead by the assailant. The memory of the massacre was etched deeply in his memory. As this Court has many times held, the natural reaction of victims of criminal violence is to strive to notice the appearance of their assailants and observe the manner the crime was committed.31Indeed, Mario's statement that accused-appellant used a shotgun in shooting him and his companions on November 15, 1991 is confirmed by the fact that the wounds suffered by the victims were similar to those caused by a shotgun fired at close range. Rogelio Seldera, who was less than three meters away from accused-appellant, had his head practically blown off. On his neck and chest were nine wounds, probably caused by pellets from the blast. Mario, who was behind his father, sustained three vertical, relatively small wounds on the right side of his back. The wound on Rodolfo's head, on the other hand, although without an exit, is similar in size to that suffered by Rogelio Seldera on the head.It is argued that Mario could not have recognized accused-appellant because it was very dark on the night of November 15, 1991.32This is not true. According to the Philippine Atmospheric Geophysical and Astronomical Services Administration, there was 60% illumination from the moon over Umingan, Pangasinan at 9:00 in the evening of November 15, 1991. InPeople v.Pueblas,33we held that a moon disc 62% full provides sufficient illumination in sustaining the identification of the accused and convicting him of murder. In other cases, we held that the illumination from the moon34and even from the stars35is fair and sufficient to identify perpetrators of crimes.The Solicitor General observes that Mario had been walking under the light of the moon for sometime before the incident so that his eyes had sufficiently adjusted to the natural illumination, so as to enable him in identifying the accused-appellant.36Indeed, if accused-appellant recognized his intended victims, there is no reason why the survivor from the ambush could not have also recognized him.In the alternative, it is contended that even if there was fair illumination from the moon on the night in question, nonetheless Mario Seldera could have mistaken accused-appellant for Rodrigo "Thunder" Lopez.37Again the contention is without merit. Rodrigo "Thunder" Lopez may also be called "Amboy" Lopez in the barangay, but it was not by name that Mario made his identification. In fact, Rodrigo "Thunder" Lopez was not even a suspect in the ambush of Mario and the latter's companions. As already stated, Mario identified accused-appellant based on this witness' knowledge of accused-appellant. The latter was a frequent visitor in their house and this witness used to buy from accused-appellant's store. Moreover, Rodrigo Lopez is darker and shorter than accused-appellant.Indeed, Mario Seldera was very positive that it was accused-appellant who shot them. He identified accused-appellant as their assailant upon reaching Alfredo Padapat's house. He again pointed to accused-appellant as the person who shot them when his mother arrived and again when they reported the incident to the police that same night. The rule is that identification of the accused, when there is no improper motive for making it, should be given full faith and credence. In the case at bar, no reason has been shown why Mario should falsely implicate accused-appellant.Second. It is claimed that accused-appellant was in his uncle's house in Caurdanetaan at the time of the incident. The defense of alibi will be sustained where the evidence of the prosecution is weak.38However, accused-appellant himself said that Caurdanetaan is just three kilometers from Nancalabasaan. On the other hand, his witnesses39themselves testified that accused-appellant's house is less than two kilometers from the scene of the crime and that the distance could be negotiated in 30 minutes by foot and even less if one runs. For alibi to prosper, accused-appellant must show that it was physically impossible for him to be at the scene of the crime at the time of its commission.40Thus, assuming that he was indeed at the party in Asterio Sonaco's house, he could have easily slipped out of the party, come back to the group, and then be at home in time for the police to find him there.Moreover, as already stated, accused-appellant was positively identified by Mario as the triggerman. It is settled that the defense of alibi cannot prevail over positive identification of the accused by an eyewitness who has no improper motive to falsely testify.41The Court finds no reason to doubt the veracity of Mario's testimony who was only 11 when he witnessed the gruesome killing of his father and cousin and barely 13 when he took the stand. He could possibly have no other motive but to tell the truth about what he had observed.Accused-appellant's alibi is not only weak; it is also filled with inconsistencies. He said in his counter-affidavit that he went home at 8:00 in the evening of November 15, 1991, a full hour before the shooting occurred but, in his testimony in court, he said he went home at 11:00 in the evening. His witnesses, Daniel Fortunato and Mario Sonaco, said there were at least ten persons in the party at the house of Asterio Sonaco on November 15, 1991, but accused-appellant stated that there were only five.The Court is convinced that it was accused-appellant who shot Mario Seldera, Rogelio Seldera, and Rodolfo Padapat on November 15, 1991. It is immaterial that there is no proof of motive for the attack because this becomes significant only where the identity of the assailant is in serious doubt.42But in this case, the accused has been positively identified.Third. The Information is formally defective as it charged more the one offense in violation of Rule 110, 13 of the Revised Rules of Court. However, because of his failure to file a motion to quash, accused-appellant is deemed to have waived objection based on the ground of duplicity.43The dispositive portion of the trial court's decision finds accused-appellant guilty of "Double Murder with Frustrated Murder," but sentences him for two separate counts of murder and one count of frustrated homicide. We hold that accused-appellant was guilty of two counts of murder and one count of attempted murder. Under Art. 48 of the Revised Penal Code, a complex crime is committed only "when a single act constitutes two or more grave or less grave felonies." As the victims in this case were successively shot by accused-appellant with a shotgun, each shot necessarily constitutes one act. Accused-appellant should thus be held liable for three separate crimes.The lower court correctly appreciated treachery as having qualified the killing of Rogelio Seldera and Rodolfo Padapat. The essence of treachery is the swift and unexpected attack on an unarmed victim without the slightest provocation on the part of the victim.44Here, it was clearly established that the victims, when shot, were unarmed and were peacefully walking along a trail when accused-appellant suddenly opened fire on them. The swiftness of the shooting left them helpless to put up any form of defense.The lower court however erred in convicting accused-appellant of frustrated homicide for the injuries inflicted on Mario Seldera. Although it correctly appreciated the intent to kill, which can be inferred from the weapon used, the proximity of the assailants and the location of the injuries, it should have appreciated treachery in the attack. Treachery attended the shooting not only of Rogelio Seldera and Rodolfo Padapat but also of Mario Seldera.But, with respect to Mario Seldera, the crime was not frustrated, but only attempted murder. This is the gist of our rulings in several cases.45For the injuries sustained by Mario Seldera were not life threatening. Dr. Santos, the attending physician, certified that Mario's injuries would heal in seven days.46In fact, he was not confined at the hospital. He was referred to the Eastern Pangasinan District Hospital only for x-ray examination of his injuries. There is no evidence that he was given further medical attention by this hospital other than what Dr. Santos had requested.Fourth. Certain modification should also be made with respect to the award of damages. The lower court awarded P50,000.00 for compensatory damages and P30,000.00 for moral damages to each set of heirs of Rogelio Seldera and Rodolfo Padapat in addition to the P14,000.00 actual damages to be divided among them. The P50,000.00 should be treated as civil indemnity, which under prevailing jurisprudence,47is fixed at P50,000.00, to be awarded without need of further proof other than the death of the victim. Further, in accordance with our rulings in other cases,48the amount of moral damages should be increased to P50,000.00.With regard to the amount of actual damages, Leonida Seldera and Alfredo Padapat testified that they could not present any receipt for their funeral expenses because the funeral agency refused to issue one in view of an unpaid balance. They have likewise allegedly lost the receipts for their joint expenses for the wake. Under the Civil Code (Art. 2199), a party is entitled to compensation only for such pecuniary loss suffered by him as he has duly proved. However, under Art. 2224, temperate damages may be recovered if it is shown that such party suffered some pecuniary loss but the amount thereof cannot, from the nature of the case, be proved with certainty.49As the heirs of the two victims clearly incurred funeral expenses, an award of P5,000.00 for each set of heirs by way of temperate damages should be awarded, to be divided equally by the heirs of Seldera and Padapat.For the injuries sustained by Mario Seldera, the courta quoawarded P10,000.00 moral damages, P20,000.00 exemplary damages and P300.00 actual damages for medical expenses. The first item should be disallowed for lack of evidence to support it. The second item should likewise be deleted as under Art. 2230 of the Civil Code, exemplary damages are awarded when the crime is committed with one or more aggravating circumstances. There was no aggravating circumstance in this case other than the qualifying circumstance of treachery. As to the actual damages of P300.00, as the prosecution failed to present any documentary proof for such, its award is improper. However, the amount of P200.00 as temperate damages may be made in its place.Actual damages representing unearned income of Rogelio Seldera and Alfredo Padapat should also be awarded. Leonida Seldera testified that her husband was 43 years old when he was killed and that he earned P13,000.00 a year as a farmer.50On the other hand, Alfredo Padapat testified that his son, Rodolfo, was then 25 years old when he died and that he was earning P5,000.00 a year also as a farmhand.51The formula for the computation of unearned income is:52net earning cpacity=lifeexpectancyxgross annual incomelessliving expenses (50% of gross annual income)

(x)Life expectancy is determined in accordance with the formula 532/3 x [80 - age of the deceased]Accordingly, Rogelio Seldera's unearned income is:x=2[80 - 43]

3x P13,000 P6,500

=24.67 x P6,500

=P160,355

Rodolfo Padapat's unearned income is:x=2[80 - 25]

3x P5,000 P2,500

=36.67 x P2,500

=P91,675

WHEREFORE, the decision of the Regional Trial Court of Pangasinan (Branch 52) is AFFIRMED with the following modifications:1. For the death of Rogelio Seldera, accused-appellant is found guilty of murder and is sentenced toreclusion perpetuaand to pay the heirs of the deceased Rogelio Seldera the amount of P50,000.00 as indemnity, P50,000.00 as moral damages, P5,000.00 as temperate damages, and P160,355.00 as unearned income.2. For the death of Rodolfo Padapat, accused-appellant is found guilty of murder and is sentenced toreclusion perpetuaand to pay the heirs of the deceased Rodolfo Padapat the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P5,000.00 as temperate damages, and P91,675.00 as unearned income.3. For the injuries of Mario Seldera, accused-appellant is found guilty of attempted murder and is sentenced to 4 years and 2 months ofprision correccional, as minimum, to 10 years ofprision mayor, as maximum, and to pay Mario Seldera P200.00 as temperate damages.1wphi1.ntSO ORDERED.

G.R. No. 121203 April 12, 2000THE PEOPLE OF THE PHILIPPINES,plaintiff and appellee,vs.DOMINADOR ASPIRASalias"BOY",accused-appellant.QUISUMBING,J.:This is an appeal from the decision1dated April 24, 1995 of the Regional Trial Court of Urdaneta, Pangasinan, Branch 47 in Criminal Case No. U-6553, convicting accused-appellant Dominador Aspiras of the crime of MURDER qualified by treachery, and sentencing him to suffer the penalty ofreclusion perpetuawith all accessory penalties, to pay the heirs of the victim P50,000.00 for indemnity; P50,000.00 for moral and exemplary damages; P82,250.00 for actual damages; P1,421,200.00 for expected or future income; and to pay the costs.At the time of the incident, appellant Dominador Aspiras was a Police Officer 3 (PO3), assigned at Pilar Village Detachment in Las Pias, Metro Manila. The victim, Renato Lumague, was a crusher general supervisor of the Northern Cement Corporation and a supporter of NPC-KBL political party.As gleaned from the records, the pertinent facts are as follows:In the evening of April 6, 1992, the NPC-KBL party held a political rally at the plaza of Bonapal, Bobonan, Pozorrubio, Pangasinan. The candidates for mayor and vice mayor, Artemio R. Saldivar and Felimon Reyes, respectively, were present together with the eight candidates for councilors, as well as Victor Juguilon,2Juanito Caballero, and Renato Lumague,3who were supporters of the party. About 100 to 200 people attended the rally. Between ten and eleven o'clock in the evening, Renato Lumague, was on stage, delivering a speech. Suddenly, a man appeared in front of Renato Lumague and shot him three times. He died instantly.On April 9, 1992, Gilda Lumague, the widow of the victim, filed a complaint with the Philippine National Police of Pozorrubio Pangasinan, against appellant Dominador Aspiras for the death of her husband. Juanito Caballero executed an affidavit to support the complaint.In an information dated August 11, 1992, Assistant Provincial Prosecutor Emiliano M. Matro accused Dominador Aspirasalias"Boy" of the crime of murder, committed as follows:That on or about the 6th day of April, 1992 in the evening at Sitio Bonapal, Barangay Bobona, municipality of Pozorrubio, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, being then armed with a Caliber .45 pistol, with treachery and evident premeditation, did then and there wilfully, unlawfully, and feloniously shoot one Renato Lumague, inflicting upon him multiple gunshot wounds on the vital parts of his body, which caused his instantaneous death, to the damage and prejudice of the heirs of said Renato Lumague.4On arraignment, accused pleaded not guilty. Trial then ensued.At the hearing of the case, the prosecution presented Juanito Caballero and Victor Juguilon, the two eyewitnesses; Dr. Francisco Llamas, the medico-legal who conducted the autopsy; Casiano Cabalan, the Personnel Manager of the Northern Cement Corporation; and Geraldine Lumague, the victim's daughter who testified in place of her mother.Juanito Caballero and Victor Joguilon, who were both spectators and seated near the stage, stated that they witnessed the shooting incident. They categorically identified the appellant who shot the victim, Renato Lomague, who was three (3) meters away. The accused went directly infront of the stage where the victim was speaking and pulled the trigger. The accused after shooting the victim placed his gun on his waist, raised both his hands to the people and left the place. The victim was brought to the hospital but died. The police arrived later on and conducted investigation of the incident.To rebut the version of the prosecution, appellant presented his evidence, which included his own testimony and those of Gabriel Viernes, Gavino Sababan Jr., Segundino Palisoc, Maj. Lazaro Lim, and Josephine Terry.Appellant testified that during the whole day of April 6, 1992, he was on tour of duty with SPO2 Gavino Sababan, Jr., and PO2 Esteban Liu as team leader and driver, respectively, at Las Pias, Metro Manila. He claimed that, with the other members of the crew in Mobile Car 962, he usually stood-by at the Shell Station, in Almanza, Las Pias, Metro Manila, which is considered a "choke point''. Here the police usually stood-by for police visibility. At 8:00 o'clock in the morning of April 6, they arrived from their detachment, about one (1) kilometer away from the "choke point", and they proceeded to the Shell Station to start their tour of duty. At 12:00 noon, they took their lunch at the detachment, then they returned to their "choke point" assignment where they stood-by up to midnight.Their activities on that particular date, April 6, were recorded on a Record Book marked as Exh. "5". The activities of the appellant on April 5 and 7, 1992 were also recorded on said book. Appellant filled up the entries in the logbook but it was signed by the team leader, SPO2 Gavino Sababan. These were facts corroborated by Gavino Sababan, SPO3 Segundino Palisoc and Chief Inspector Major Lazaro Lim, all members of the PNP, Las Pinas Police Station, Las Pias, Metro Manila.According to appellant, one week after April 6, 1992, he learned that he was a suspect when he read about it in a tabloid newspaper. Appellant was called by his superior regarding the incident and was directed to submit an affidavit. On June 20, 1992, he was arrested and incarcerated at Camp Bagong Diwa, Bicutan, Taguig, Metro Manila. On September 5, 1992, he filed his bailbond and was then released.Witness Juanito Caballero, according to appellant, had a motive to implicate him in the crime as they had a fistfight the first week of January 1991, in Pangasinan over some parcels of land owned by Engracio Aspiras and Brigida Aspiras. Said parcels were transferred by Caballero in his name. But appellant and other relatives contested the transfer made by Caballero.5On April 24, 1995, the trial court promulgated its decision, disposing as follows:WHEREFORE, the Court finds the accused DOMINADOR ASPIRASalias"Boy"GUILTYbeyond reasonable doubt of the crime of MURDER qualified by treachery and there being no mitigating or aggravating circumstance, hereby sentences him to suffer the penalty ofR