SECOND DIVISION

[G.R. No. 173106. September 30, 2008.]

COSME NACARIO , petitioner, vs . PEOPLE OF THE PHILIPPINES ,

respondent.

DECISION

CARPIO-MORALES , J : p

Petitioner, Cosme Nacario, was charged of Frustrated Murder in an August 27,

1997 Information led before the Regional Trial Court (RTC) of Iriga City, the
accusatory portion of which reads: cSaCDT

That on or about the 29th day of March, 1997 at about 3:05 o'clock in the
afternoon at Sto. Domingo, Iriga City, Philippines, and within the jurisdiction of
this Honorable Court, the said accused, without authority of law and with
evident premeditation, did, then and there willfully, unlawfully and feloniously
attack and stab with the said [sic] weapon, one Medardo M. de Villa, hitting the
latter at the left side portion of his stomach, accused thereby have [sic]
performed all the acts of execution which would have produced the crime of
murder, but which nevertheless was not produced by reason of causes
independent of the will of the accused, and that is by the timely medical
assistance rendered to the aforesaid victim which prevented his death, to his
damage and prejudice in such amount as may be proven in court.
ACTS CONTRARY TO LAW.
In the afternoon of March 29, 1997, Medardo de Villa (the victim), while on board
a bicycle along a road at Iriga City, met petitioner who was also on board a bicycle
coming from the opposite direction. 1 After both alighted from their respective
bicycles, petitioner stabbed the victim with a balisong (fan knife) 2 at the upper left
portion of the abdomen. 3
The clinical data sheet 4 of the victim, who was operated on at the Bicol Medical
Center, showed the following:
xxx xxx xxx
FINAL DIAGNOSIS:
Stab wound, 3 cm., subcostal Area, Anterior Axillary Line, left
penetrating the diaphragm, incising the spleen type I

xxx xxx xxx (Emphasis and underscoring supplied)

Not long after the incident, petitioner surrendered to the police.

Petitioner admitted having stabbed the victim. He interposed self-defense,
however, and gave the following version:
As he and the victim met on the road, the victim whom he had earlier seen
"drinking with others" in front of his (the victim's) house blocked his path and, without
warning, swung a fan knife toward him but missed him. The victim thereafter again
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 thrice attempted to hit him with the knife but also missed him as he always "sw[ung] his
body backward", but on the last attempt, he (petitioner) was able to wrest the knife
from the victim. Sensing danger to his person when the victim turned his back to pick
up stones and "was poised to strike", he stabbed him once with the knife. 5
Q: You also testi ed that Midardo [sic] de Villa attempted . . . to stab [you] by
a knife, but it was only on the 4th time that you were able to wrest the
[B]atangas knife from him. Now, will you please stand up and demonstrate
to the Honorable Court how were you able to evade these three times
Midardo de Villa's attempt[ed] to stab you with [a] [B]atangas knife?

A: The rst time he stabbed [sic] me (witness swinging his right arm from
right to left with him evading the blow while swinging his body backward)
[.] I did not react instantly because I could hear the people in the waiting
shed pacifying him not to continue and the second time was in like manner
[sic] swinging his right hand towards me from left to right with me evading
with blow [sic] by the backward [sic] a n d the third time that he
attempted to stab me I decided to wrest the [B]atangas knife. So
from him [sic] I could sense he really intends to harm me. The 4th
time he attempted I really sense [sic] that he really determine [sic] to
stab me. So I pary [sic] blow with my left hand and the [B]atanags
[sic] knife with my right hand. After which he picked up stones and
it [sic] was in the act of throwing the stones to me that I have [sic]
chance to stab him. After I stabbed him, he fell down and so I left .
6 (Emphasis and underscoring supplied) aCcHEI

Petitioner added that prior to the incident, there had been several attempts of the
victim to stab him, and even the victim's brothers harassed and threatened him. 7
By Decision of July 5, 2002, 8 the Regional Trial Court convicted petitioner of
Frustrated Homicide, disposing as follows:
WHEREFORE, nding accused, COSME NACARIO guilty beyond
reasonable doubt for the crime of frustrated homicide, he is sentenced to
imprisonment of twelve (12) years, ten (10) months and twenty-one (21) days to
thirteen (13) years; nine (9) months and ten (10) days, the medium of reclusion
temporal, minimum period which is minimum of, to [sic] fteen (15) years, six
(6) months and twenty (20) days to sixteen (16) years, ve (5) months and nine
(9) days, the medium of reclusion temporal in its medium period which is the
maximum period of the indeterminate sentence; to pay an indemnity of
P25,000.00; actual damages including attorney [sic] and doctor's fees of
P35,000.00 and to pay the cost. IHcTDA

SO ORDERED.
In ruling out self-defense, the trial court held:
Accused could not claim self-defense because, after having wrestled
away the knife from complainant, if at all complainant was originally in
possession of the knife and tried to stab him [sic], there was already an
interval of time when complainant turned his back from him and
picked up a stone. Assuming without admitting that complainant picked up a
stone to throw at him, he could always run away from the ght. After all he was
patient enough to ward off complainant's attempts to stab him. This version of
the accused is not credible. The court believes that it was accused who was in
possession of the knife all the time when they met and he stabbed him. 9
(Emphasis and underscoring supplied) EcAHDT

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 By Decision of May 18, 2006, 1 0 the Court of Appeals a rmed the ndings of the
trial court but modi ed the penalty after considering the mitigating circumstance of
voluntary surrender of petitioner. Thus the appellate court disposed:
WHEREFORE, premises considered, the assailed July 5, 2002 Decision of
the RTC of Iriga City, Branch 35, in Criminal Case No. IR-4445, which convicted
accused-appellant Cosme Nacario of the crime of Frustrated Homicide, is
hereby AFFIRMED with MODIFICATION that the penalty should be from two (2)
years and four months of prision correccional in its minimum period, as
minimum, to six (6) years and one (1) day of prision mayor in its minimum
period, as maximum. Moreover, accused-appellant Cosme Nacario is ORDERED
to pay the victim, Medardo M. de Villa, in addition to indemnity of P25,000.00,
the amounts of P2,261.55 as actual damages and P30,000.00 as moral
damages.
SO ORDERED. (Underscoring supplied)
Hence, the present petition for review.
Having interposed self-defense, petitioner had the onus of proving its elements,
viz.: (1) unlawful aggression on the part of the victim; (2) employment of reasonable
necessity to prevent or repel the aggression; and (3) lack of su cient provocation on
the part of the person defending himself. 1 1
Petitioner maintained that the victim provoked the incident by waylaying him, and
that after he wrested the knife from the victim, the latter instantaneously picked up
stones, thus making him (petitioner) believe that "an attack was still forthcoming and
[he] was still threatened by some evil or injury", 1 2 hence, his stabbing of the victim. HcSCED

Assuming arguendo that unlawful aggression initially came from the victim, the
aggression ceased when the victim was divested of his balisong. At that instant, there
was no longer any imminent risk to petitioner's life or personal safety.
Apropos is this Court's pronouncement in People v. Ebmerga: 1 3
It is clear even from [the accused] Romeo Ebmerga's testimony alone that
when he threw a stone at Rafaelito Nolasco, causing the latter to drop the knife
he was holding, there was no longer any imminent risk or danger to his life.
Thus, when Romeo Ebmerga went on to lunge for the victim's knife on the
ground and thrust it for an untold number of times into the victim's body, he
was not acting to repel an attack or to protect himself from the aggression of
the victim. It strains credulity to accept the version of the defense that despite
dropping the knife, the victim still faced Romeo Ebmerga in a menacing manner
and "with the intention of killing him". (Underscoring supplied)
TDaAHS

Again assuming arguendo that the victim thereafter turned his back and picked
up stones, there was, as the trial court found, before that "an interval of time" which
afforded petitioner time to "run away" as, after all, he had warded off the four prior
attempts to stab him.
As for petitioner's varying claim that the victim was "in the act of throwing the
stones [at him]" on account of which he was afforded a chance to stab him, the Court
nds the same incredible, given the oddity of the victim possibly throwing stones,
whose sizes were not even described, from a distance near enough for petitioner to
reach and stab the victim. acSECT

As for petitioner's still another varying claim, clearly an afterthought, that the
victim was able to strike him with a stone before he (petitioner) stabbed the victim, 1 4
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 that no claim that petitioner was injured dents credibility thereof.
It is a statutory and doctrinal requirement that the presence of unlawful
aggression is a condition sine qua non for self-defense to be a justifying circumstance.
Such element not being present on the victim's part, discussion of the rest of the
elements of self-defense is rendered unnecessary.
As did the lower courts, the Court thus brushes aside petitioner's plea of self-
defense. Petitioner's conviction of Frustrated Murder is thus upheld. IaHSCc

On the modi cation by the appellate court of the penalty imposed by the trial
court, this Court nds the same well-taken, petitioner's voluntary surrender being a
mitigating circumstance.
As for the reduction by the appellate court of the award of actual damages, it is
well-taken too as the documentary evidence for the purpose 1 5 (Exhibit "C"-"C-13"
representing expenses for medicine) totals only the amount of P2,261.55. And so is the
appellate court's award of moral damages in the amount of P30,000, it being in
consonance with law 1 6 and prevailing jurisprudence. 1 7
As for the award of P25,000 as indemnity, there being no legal basis, it must be
deleted.
WHEREFORE, the May 18, 2006 Decision of the Court of Appeals nding
petitioner, Cosme Nacario, guilty beyond reasonable doubt of Frustrated Homicide is
AFFIRMED with MODIFICATION. The award of P25,000 as indemnity is DELETED; in its
stead, the award of P30,000 as temperate damages is ORDERED. In all other respects,
the appellate court's Decision is affirmed. CDScaT

Costs de oficio.
SO ORDERED.
Quisumbing, Tinga, Velasco, Jr. and Brion, JJ., concur.

Footnotes
1. TSN, December 22,1998, p. 4. caADIC

2. Ibid.
3. Id. at 5-6.
4. Records, Vol. I, p. 195; Exhibit "A".
5. TSN, July 12, 1999, p. 10. aCASEH

6. TSN, July 12, 1999, pp. 9-10.

7. TSN, June 23, 1999, pp. 8-10; TSN, July 12, 1999, p. 3.
8. Rollo, p. 33-41.
9. Id. at p. 39.
10. Rollo, pp. 19-29. Penned by Justice Vicente Q. Roxas with Justices Godardo A. Jacinto
and Juan Q. Enriquez Jr., concurring. TDSICH

11. Article 11, REVISED PENAL CODE.

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 12. Rollo, pp. 12-14.
13. G.R. 116616, November 26, 1999, 319 SCRA 304, 320.
14. TSN, July 12, 1999, p. 4.

15. Records, Vol. I, pp. 160-162; Exhibits "C" to "C-12". ESCDHA

16. Article 2219 of the NEW CIVIL CODE.

17. Santos v. Court of Appeals, 461 Phil. 36, 55 (2003).

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