MODULE 7: MITIGATING CICUMSTANCES

A. Classes of Mitigating Circumstances

a. Art. 13, RPC
b. Art. 64, RPC
c. Art. 68, RPC
d. Art. 69, RPC

1. People v. Jaurigue, G.R. No. 384, 21 February 1946

C.A. No. 384 February 21, 1946

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.

Jose Ma. Recto for appellant.

Assistant Solicitor General Enriquez and Solicitor Palma for appellee..

DE JOYA, J.:

Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance of Tayabas, for the
crime of murder, of which Nicolas Jaurigue was acquitted, but defendant Avelina Jaurigue was found
guilty of homicide and sentenced to an indeterminate penalty ranging from seven years, four months
and one day of prision mayor to thirteen years, nine months and eleven days of reclusion temporal, with
the accessory penalties provided by law, to indemnify the heirs of the deceased, Amando Capina, in the
sum of P2,000, and to pay one-half of the costs. She was also credited with one-half of the period of
preventive imprisonment suffered by her.

From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court of Appeals for
Southern Luzon, and in her brief filed therein on June 10, 1944, claimed —

(1) That the lower court erred in not holding that said appellant had acted in the legitimate
defense of her honor and that she should be completely absolved of all criminal responsibility;

(2) That the lower court erred in not finding in her favor the additional mitigating circumstances
that (a) she did not have the intention to commit so grave a wrong as that actually committed,
and that (b) she voluntarily surrendered to the agents of the authorities; and

(3) That the trial court erred in holding that the commission of the alleged offense was attended
by the aggravating circumstance of having been committed in a sacred place.

The evidence adduced by the parties, at the trial in the court below, has sufficiently established the
following facts:

That both the defendant and appellant Avelina Jaurigue and the deceased Amado Capina lived in the
barrio of Sta. Isabel, City of San Pablo, Province of Laguna; that for sometime prior to the stabbing of the
deceased by defendant and appellant, in the evening of September 20, 1942, the former had been
courting the latter in vain, and that on one occasion, about one month before that fatal night, Amado
Capina snatched a handkerchief belonging to her, bearing her nickname "Aveling," while it was being
washed by her cousin, Josefa Tapay.

On September 13, 1942, while Avelina was feeding a dog under her house, Amado approached her and
spoke to her of his love, which she flatly refused, and he thereupon suddenly embraced and kissed her
and touched her breasts, on account of which Avelina, resolute and quick-tempered girl, slapped
Amado, gave him fist blows and kicked him. She kept the matter to herself, until the following morning
when she informed her mother about it. Since then, she armed herself with a long fan knife, whenever
she went out, evidently for self-protection.

On September 15, 1942, about midnight, Amado climbed up the house of defendant and appellant, and
surreptitiously entered the room where she was sleeping. He felt her forehead, evidently with the
intention of abusing her. She immediately screamed for help, which awakened her parents and brought
them to her side. Amado came out from where he had hidden under a bed in Avelina's room and kissed
the hand of Nicolas Jaurigue, her father, asking for forgiveness; and when Avelina's mother made an
attempt to beat Amado, her husband prevented her from doing so, stating that Amado probably did not
realize what he was doing. Nicolas Jaurigue sent for the barrio lieutenant, Casimiro Lozada, and for
Amado's parents, the following morning. Amado's parents came to the house of Nicolas Jaurigue and
apologized for the misconduct of their son; and as Nicolas Jaurigue was then angry, he told them to end
the conversation, as he might not be able to control himself.

In the morning of September 20, 1942, Avelina received information that Amado had been falsely
boasting in the neighborhood of having taken liberties with her person and that she had even asked him
to elope with her and that if he should not marry her, she would take poison; and that Avelina again
received information of Amado's bragging at about 5 o'clock in the afternoon of that same day.

At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas Jaurigue went to the
chapel of the Seventh Day Adventists of which he was the treasurer, in their barrio, just across the
provincial road from his house, to attend religious services, and sat on the front bench facing the altar
with the other officials of the organization and the barrio lieutenant, Casimiro Lozada. Inside the chapel
it was quite bright as there were electric lights.

Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival of her father, also
for the purpose of attending religious services, and sat on the bench next to the last one nearest the
door. Amado Capina was seated on the other side of the chapel. Upon observing the presence of Avelina
Jaurigue, Amado Capina went to the bench on which Avelina was sitting and sat by her right side, and,
without saying a word, Amado, with the greatest of impudence, placed his hand on the upper part of
her right thigh. On observing this highly improper and offensive conduct of Amado Capina, Avelina
Jaurigue, conscious of her personal dignity and honor, pulled out with her right hand the fan knife
marked Exhibit B, which she had in a pocket of her dress, with the intention of punishing Amado's
offending hand. Amado seized Avelina's right hand, but she quickly grabbed the knife with her left hand
and stabbed Amado once at the base of the left side of the neck, inflicting upon him a wound about 4
1/2 inches deep, which was necessarily mortal. Nicolas Jaurigue, who was seated on one of the front
benches, saw Amado bleeding and staggering towards the altar, and upon seeing his daughter still
holding the bloody knife, he approached her and asked: "Why did you do that," and answering him
Avelina said: "Father, I could not endure anymore." Amado Capina died from the wound a few minutes
later. Barrio lieutenant Casimiro Lozada, who was also in the same chapel, approached Avelina and
asked her why she did that, and Avelina surrendered herself, saying: "Kayo na po ang bahala sa aquin,"
meaning: "I hope you will take care of me," or more correctly, "I place myself at your disposal." Fearing
that Amado's relatives might retaliate, barrio lieutenant Lozada advised Nicolas Jaurigue and herein
defendant and appellant to go home immediately, to close their doors and windows and not to admit
anybody into the house, unless accompanied by him. That father and daughter went home and locked
themselves up, following instructions of the barrio lieutenant, and waited for the arrival of the municipal
authorities; and when three policemen arrived in their house, at about 10 o'clock that night, and
questioned them about the incident, defendant and appellant immediately surrendered the knife
marked as Exhibit B, and informed said policemen briefly of what had actually happened in the chapel
and of the previous acts and conduct of the deceased, as already stated above, and went with said
policemen to the police headquarters, where her written statements were taken, and which were
presented as a part of the evidence for the prosecution.

The high conception of womanhood that our people possess, however humble they may be, is universal.
It has been entertained and has existed in all civilized communities.

A beautiful woman is said to be a jewel; a good woman, a treasure; and that a virtuous woman
represents the only true nobility. And they are the future wives and mothers of the land. Such are the
reasons why, in the defense of their honor, when brutally attacked, women are permitted to make use
of all reasonable means available within their reach, under the circumstances. Criminologists and courts
of justice have entertained and upheld this view.

On the other hand, it is the duty of every man to protect and show loyalty to womanhood, as in the days
of chivalry. There is a country where women freely go out unescorted and, like the beautiful roses in
their public gardens, they always receive the protection of all. That country is Switzerland.

In the language of Viada, aside from the right to life on which rests the legitimate defense of our own
person, we have the right to property acquired by us, and the right to honor which is not the least prized
of our patrimony (1 Viada, Codigo Penal, 5th ed., pp. 172, 173).

The attempt to rape a woman constitutes an unlawful aggression sufficient to put her in a state of
legitimate defense, inasmuch as a woman's honor cannot but be esteemed as a right as precious, if not
more, than her very existence; and it is evident that a woman who, thus imperiled, wounds, nay kills the
offender, should be afforded exemption from criminal liability, since such killing cannot be considered a
crime from the moment it became the only means left for her to protect her honor from so great an
outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague and Alcansare, 62 Phil., 504). .

As long as there is actual danger of being raped, a woman is justified in killing her aggressor, in the
defense of her honor. Thus, where the deceased grabbed the defendant in a dark night at about 9
o'clock, in an isolated barrio trail, holding her firmly from behind, without warning and without revealing
his identity, and, in the struggle that followed, touched her private parts, and that she was unable to
free herself by means of her strength alone, she was considered justified in making use of a pocket knife
in repelling what she believed to be an attack upon her honor, and which ended in his death, since she
had no other means of defending herself, and consequently exempt from all criminal liability (People vs.
De la Cruz, 16 Phil., 344).
And a woman, in defense of her honor, was perfectly justified in inflicting wounds on her assailant with
a bolo which she happened to be carrying at the time, even though her cry for assistance might have
been heard by people nearby, when the deceased tried to assault her in a dark and isolated place, while
she was going from her house to a certain tienda, for the purpose of making purchases (United States
vs. Santa Ana and Ramos, 22 Phil., 249).

In the case, however, in which a sleeping woman was awakened at night by someone touching her arm,
and, believing that some person was attempting to abuse her, she asked who the intruder was and
receiving no reply, attacked and killed the said person with a pocket knife, it was held that,
notwithstanding the woman's belief in the supposed attempt, it was not sufficient provocation or
aggression to justify her completely in using deadly weapon. Although she actually believed it to be the
beginning of an attempt against her, she was not completely warranted in making such a deadly assault,
as the injured person, who turned out to be her own brother-in-law returning home with his wife, did
not do any other act which could be considered as an attempt against her honor (United States vs.
Apego, 23 Phil., 391)..

In the instant case, if defendant and appellant had killed Amado Capina, when the latter climbed up her
house late at night on September 15, 1942, and surreptitiously entered her bedroom, undoubtedly for
the purpose of raping her, as indicated by his previous acts and conduct, instead of merely shouting for
help, she could have been perfectly justified in killing him, as shown by the authorities cited above..

According to the facts established by the evidence and found by the learned trial court in this case,
when the deceased sat by the side of defendant and appellant on the same bench, near the door of the
barrio chapel and placed his hand on the upper portion of her right thigh, without her consent, the said
chapel was lighted with electric lights, and there were already several people, about ten of them, inside
the chapel, including her own father and the barrio lieutenant and other dignitaries of the organization;
and under the circumstances, there was and there could be no possibility of her being raped. And when
she gave Amado Capina a thrust at the base of the left side of his neck, inflicting upon him a mortal
wound 4 1/2 inches deep, causing his death a few moments later, the means employed by her in the
defense of her honor was evidently excessive; and under the facts and circumstances of the case, she
cannot be legally declared completely exempt from criminal liability..

But the fact that defendant and appellant immediately and voluntarily and unconditionally surrendered
to the barrio lieutenant in said chapel, admitting having stabbed the deceased, immediately after the
incident, and agreed to go to her house shortly thereafter and to remain there subject to the order of
the said barrio lieutenant, an agent of the authorities (United States vs. Fortaleza, 12 Phil., 472); and the
further fact that she had acted in the immediate vindication of a grave offense committed against her a
few moments before, and upon such provocation as to produce passion and obfuscation, or temporary
loss of reason and self-control, should be considered as mitigating circumstances in her favor (People vs.
Parana, 64 Phil., 331; People vs. Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86).

Defendant and appellant further claims that she had not intended to kill the deceased but merely
wanted to punish his offending hand with her knife, as shown by the fact that she inflicted upon him
only one single wound. And this is another mitigating circumstance which should be considered in her
favor (United States vs. Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil., 123).

The claim of the prosecution, sustained by the learned trial court, that the offense was committed by
the defendant and appellant, with the aggravating circumstance that the killing was done in a place
dedicated to religious worship, cannot be legally sustained; as there is no evidence to show that the
defendant and appellant had murder in her heart when she entered the chapel that fatal night. Avelina
is not a criminal by nature. She happened to kill under the greatest provocation. She is a God-fearing
young woman, typical of our country girls, who still possess the consolation of religious hope in a world
where so many others have hopelessly lost the faith of their elders and now drifting away they know not
where.

The questions raised in the second and third assignments of error appear, therefore, to be well taken;
and so is the first assignment of error to a certain degree.

In the mind of the court, there is not the least doubt that, in stabbing to death the deceased Amado
Capina, in the manner and form and under the circumstances above indicated, the defendant and
appellant committed the crime of homicide, with no aggravating circumstance whatsoever, but with at
least three mitigating circumstances of a qualified character to be considered in her favor; and, in
accordance with the provisions of article 69 of the Revised Penal Code, she is entitled to a reduction by
one or two degrees in the penalty to be imposed upon her. And considering the circumstances of the
instant case, the defendant and appellant should be accorded the most liberal consideration possible
under the law (United States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil., 472; People vs.
Mercado, 43 Phil., 950)..

The law prescribes the penalty of reclusion temporal for the crime of homicide; and if it should be
reduced by two degrees, the penalty to be imposed in the instant case is that of prision correccional; and
pursuant to the provisions of section 1 of Act No. 4103 of the Philippine Legislature, known as the
Indeterminate Sentence Law, herein defendant and appellant should be sentenced to an indeterminate
penalty ranging from arresto mayor in its medium degree, to prision correccional in its medium degree.
Consequently, with the modification of judgment appealed from, defendant and appellant Avelina
Jaurigue is hereby sentenced to an indeterminate penalty ranging from two months and one day
of arresto mayor, as minimum, to two years, four months, and one day of prision correccional, as
maximum, with the accessory penalties prescribed by law, to indemnify the heirs of the deceased
Amado Capina, in the sum of P2,000, and to suffer the corresponding subsidiary imprisonment, not to
exceed 1/3 of the principal penalty, in case of insolvency, and to pay the costs. Defendant and appellant
should also be given the benefit of 1/2 of her preventive imprisonment, and the knife marked Exhibit B
ordered confiscated. So ordered..

Ozaeta, Perfecto, and Bengzon, JJ., concur.

2. People v. Narvaez, G.R. No. L-33466-67, 20 April 1983

[G.R. Nos. L-33466-67. April 20, 1983.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MAMERTO NARVAEZ, Defendant-Appellant.

The Solicitor General for Plaintiff-Appellee.

Gonzalo B. Callanta (counsel de oficio), for Defendant-Appellant.

DECISION
 MAKASIAR, J.:

This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch I, in Criminal
Cases Nos. 1815 and 1816 for murder which, after a joint trial, resulted in the conviction of the accused
in a decision rendered on September 8, 1970, with the following pronouncement:

"Thus, we have a crime of MURDER qualified by treachery with the aggravating circumstance of evident
premeditation offset by the mitigating circumstance of voluntary surrender. The proper penalty
imposable, therefore, is RECLUSION PERPETUA (Arts. 248 and 64, Revised Penal Code).

"Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the crime of murder,

"(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs
of the deceased Davis Q. Fleischer in the sum of P12,000,00 as compensatory damages, P10,000.00 as
moral damages, P2,000.00 as attorney’s fees, the offended party having been represented by a private
prosecutor, and to pay the costs;

"(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs
of the deceased Flaviano Rubia in the sum of P12,000.00 as compensatory damages, P10,000.00 as
moral damages, P2,000.00 as attorney’s fees, the offended party having been represented by a private
prosecutor, and to pay the costs" (p. 48, rec.).

The facts are summarized in the People’s brief, as follows:

"At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano and Cesar Ibañez,
together with the two deceased Davis Fleischer and Flaviano Rubia, were fencing the land of George
Fleischer, father of deceased Davis Fleischer. The place was in the boundary of the highway and the
hacienda owned by George Fleischer. This is located in the municipality of Maitum, South Cotabato. At
the place of the fencing is the house and rice drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n.,
Pieza II). At that time, appellant was taking his rest, but when he heard that the walls of his house were
being chiselled, he arose and there he saw the fencing going on. If the fencing would go on, appellant
would be prevented from getting into his house and the bodega of his ricemill. So he addressed the
group, saying -’Pare, if possible you stop destroying my house and if possible we will talk it over - what is
good,’ addressing the deceased Rubia, who is appellant’s compadre. The deceased Fleischer, however,
answered: ‘No, gademit, proceed, go ahead.’ Appellant apparently lost his equilibrium and he got his
gun and shot Fleischer, hitting him. As Fleischer fell down, Rubia ran towards the jeep, and knowing
there is a gun on the jeep, appellant fired at Rubia, likewise hitting him (pp. 127-133, t.s.n., Defense
transcript). Both Fleischer and Rubia died as a result of the shooting’ (pp. 9-14, t.s.n., Pieza I; pp. 8-9,
Appellant’s Brief, p. 161, rec.).

It appears, however, that this incident is intertwined with the long drawn out legal battle between the
Fleischer and Co., Inc. of which deceased Fleischer was the secretary-treasurer and deceased Rubia the
assistant manager, on the one hand, and the land settlers of Cotabato, among whom was appellant.

From the available records of the related cases which had been brought to the Court of Appeals (CA-G.R.
Nos. 28858-R and 50583-R) and to this Court on certiorari (G.R. No. L-26757 and L-45504), WE take
judicial notice of the following antecedent facts:

Appellant was among those persons from northern and central Luzon who went to Mindanao in 1937
and settled in Maitum, a former sitio of Kiamba, and now a separate municipality of South Cotabato. He
established his residence therein, built his house, cultivated the area, and was among those who
petitioned then President Manuel L. Quezon to order the subdivision of the defunct Celebes Plantation
and nearby Kalaong Plantation totalling about 2,000 hectares, for distribution among the settlers.

Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American landowner in
Negros Oriental, filed sales application No. 21983 on June 3, 1937 over the same area formerly leased
and later abandoned by Celebes Plantation Company, covering 1,017.2234 hectares.

Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in 1941 but the
survey report was not submitted until 1946 because of the outbreak of the second world war. According
to the survey, only 300 hectares identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside for
Sales Application No. 21983, while the rest were subdivided into sublots of 5 to 6 hectares each to be
distributed among the settlers (pp. 32-33, G.R. No. L-45504).

The 300 hectares set aside for the sales application of Fleischer and Company was declared open for
disposition, appraised and advertised for public auction. At the public auction held in Manila on August
14, 1948, Fleischer and Company was the only bidder for P6,000.00. But because of protests from the
settlers the corresponding award in its favor was held in abeyance, while an investigator was sent by the
Director of Lands to Kiamba in the person of Atty. Jose T. Gozon. Atty. Gozon came back after ten days
with an amicable settlement signed by the representative of the settlers. This amicable settlement was
later repudiated by the settlers, but the Director of Lands, acting upon the report of Atty. Gozon,
approved the same and ordered the formal award of the land in question to Fleischer and Company. The
settlers appealed to the Secretary of Agriculture and Natural Resources, who, however, affirmed the
decision in favor of the company.

On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of Cotabato which
then consisted only of one sala, for the purpose of annulling the order of the Secretary of Agriculture
and Natural Resources which affirmed the order of the Director of Lands awarding the contested land to
the company. The settlers, as plaintiffs, lost that case in view of the amicable settlement which they had
repudiated as resulting from threats and intimidation, deceit, misrepresentation and fraudulent
machination on the part of the company. They appealed to the Court of Appeals (CA-G.R. No. 28858-R)
which likewise affirmed on August 16, 1965 the decision of the Court of First Instance in favor of the
company.

This resulted in the ouster of the settlers by an order of the Court of First Instance dated September 24,
1966, from the land which they had been occupying for about 30 years. Among those ejected was the
appellant who, to avoid trouble, voluntarily dismantled his house, built in 1947 at a cost of around
P20,000.00, and transferred to his other house which he built in 1962 or 1963 near the highway. The
second house is not far from the site of the dismantled house. Its ground floor has a store operated by
Mrs. June Talens who was renting a portion thereof. He also transferred his store from his former
residence to the house near the highway. Aside from the store, he also had a rice mill located about 15
meters east of the house, and a concrete pavement between the rice mill and the house, which is used
for drying grains and copra.
On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa and other
leaders filed Civil Case No. 755 in the Court of First Instance of Cotabato, Branch I, to obtain an
injunction or annulment of the order of award with prayer for preliminary injunction. During the
pendency of this case, appellant on February 21, 1967 entered into a contract of lease with the company
whereby he agreed to lease an area of approximately 100 to 140 square meters of Lot No. 38 from the
company (Exh. 9, p. 1, Folder of Exhibits for Defense) for a consideration of P16.00 monthly. According
to him, he signed the contract although the ownership of the land was still uncertain, in order to avoid
trouble, until the question of ownership could be decided. He never paid the agreed rental, although he
alleges that the milling job they did for Rubia was considered payment. On June 25, 1968, deceased
Fleischer wrote him a letter with the following tenor:

"You have not paid six months rental to Fleischers & Co., Inc. for that portion of land in which your
house and ricemill are located as per agreement executed on February 21, 1967. You have not paid even
after repeated attempts of collection made by Mr. Flaviano Rubia and myself.

"In view of the obvious fact that you do not comply with the agreement, I have no alternative but to
terminate our agreement on this date.

"I am giving you six months to remove your house, ricemill, bodega, and water pitcher pumps from the
land of Fleischers & Co., Inc. This six-month period shall expire on December 31, 1966.

"In the event the above constructions have not been removed within the six-month period, the
company shall cause their immediate demolition" (Exhibit 10, p. 2, supra).

On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot 38 by putting
bamboo posts along the property line parallel to the highway. Some posts were planted right on the
concrete drier of appellant, thereby cutting diagonally across its center (pp. 227-228, t.s.n., Vol. 2), with
the last post just adjacent to appellant’s house (p. 231, t.s.n., supra). The fence, when finished, would
have the effect of shutting off the accessibility to appellant’s house and rice mill from the highway, since
the door of the same opens to the Fleischers’ side. The fencing continued on that fateful day of August
22, 1968, with the installation of four strands of barbed wire to the posts.

At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his farm all
morning, was awakened by some noise as if the wall of his house was being chiselled. Getting up and
looking out of the window, he found that one of the laborers of Fleischer was indeed chiselling the wall
of his house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing the barbed wire and
deceased Fleischer was commanding his laborers. The jeep used by the deceased was parked on the
highway. The rest of the incident is narrated in the People’s Brief as above-quoted. Appellant
surrendered to the police thereafter, bringing with him shotgun No. 1119576 and claiming he shot two
persons (Exh. P, p. 31, Defense Exhibits).

Appellant now questions the propriety of his conviction, assigning the following errors:

"First Assignment of Error: That the lower court erred in convicting defendant-appellant despite the fact
that he acted in defense of his person; and

"Second Assignment of Error: That the court a quo also erred in convicting defendant-appellant although
he acted in defense of his rights" (p. 20 of Appellant’s Brief, p. 145, rec.).

The act of killing of the two deceased by appellant is not disputed. Appellant admitted having shot them
from the window of his house with the shotgun which he surrendered to the police authorities. He
claims, however, that he did so in defense of his person and of his rights, and therefore he should be
exempt from criminal liability.

Defense of one’s person or rights is treated as a justifying circumstance under Art. 11, par. 1 of the
Revised Penal Code, but in order for it to be appreciated, the following requisites must occur:

"First. Unlawful aggression;

"Second. Reasonable necessity of the means employed to prevent or repel it;

"Third. Lack of sufficient provocation on the part of the person defending himself" (Art 11, par. 1,
Revised Penal Code, as amended).

The aggression referred to by appellant is the angry utterance by deceased Fleischer of the following
words: "Hindi, sigue, gademit, avante", in answer to his request addressed to his compadre, the
deceased Rubia, when he said, "Pare, hinto mona ninyo at pag-usapan natin kung ano ang mabuti" (pp.
227-229, t.s.n., Vol. 6). This was in reaction to his having been awakened to see the wall of his house
being chiselled. The verbal exchange took place while the two deceased were on the ground doing the
fencing and the appellant was up in his house looking out of his window (pp. 225-227, supra). According
to appellant, Fleischer’s remarks caused this reaction in him: "As if, I lost my senses and unknowingly I
took the gun on the bed and unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr.
Fleischer" (p. 132, supra). As for the shooting of Rubia, appellant testified:

"When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing the shot, Mr. Rubia looked at
Mr. Fleischer and when Mr. Fleischer fell down, Mr. Rubia ran toward s the jeep and knowing that there
was a firearm in the jeep and thinking that if he will take that firearm he will kill me, I shot at him" (p.
132, supra, Emphasis supplied).

The foregoing statements of appellant were never controverted by the prosecution. They claim,
however, that the deceased were in lawful exercise of their rights of ownership over the land in
question, when they did the fencing that sealed off appellant’s access to the highway.

A review of the circumstances prior to the shooting as borne by the evidence reveals that five persons,
consisting of the deceased and their three laborers, were doing the fencing and chiselling of the walls of
appellant’s house, The fence they were putting up was made of bamboo posts to which were being
nailed strands of barbed wire in several layers. Obviously, they were using tools which could be lethal
weapons, such as nail and hammer, bolo or bamboo cutter, pliers, crowbar, and other necessary
gadgets. Besides, it was not disputed that the jeep which they used in going to the place was parked just
a few steps away, and in it there was a gun leaning near the steering wheel. When the appellant woke
up to the sound of the chiselling on his walls, his first reaction was to look out of the window. Then he
saw the damage being done to his house, compounded by the fact that his house and rice mill will be
shut off from the highway by the fence once it is finished. He therefore appealed to his compadre, the
deceased Rubia, to stop what they were doing and to talk things over with him. But deceased Fleischer
answered angrily with "gademit" and directed his men to proceed with what they were doing.
The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would have
resulted in the further chiselling of the walls of appellant’s house as well as the closure of the access to
and from his house and rice mill — which were not only imminent but were actually in progress. There is
no question, therefore, that there was aggression on the part of the victims: Fleischer was ordering, and
Rubia was actually participating in the fencing. This was indeed aggression, not on the person of
appellant, but on his property rights.

The question is, was the aggression unlawful or lawful? Did the victims have a right to fence off the
contested property, to destroy appellant’s house and to shut off his ingress and egress to his residence
and the highway?

Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land or
tenements.

However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of the order
of award to Fleischer and Company was still pending in the Court of First Instance of Cotabato. The
parties could not have known that the case would be dismissed over a year after the incident on August
22, 1968, as it was dismissed on January 23, 1970 on ground of res judicata, in view of the dismissal in
1965 (by the Court of Appeals) of Civil Case No. 240 filed in 1950 for the annulment of the award to the
company, between the same parties, which the company won by virtue of the compromise agreement
in spite of the subsequent repudiation by the settlers of said compromise agreement; and that such
1970 dismissal also carried the dismissal of the supplemental petition filed by the Republic of the
Philippines on November 28, 1968 to annul the sales patent and to cancel the corresponding certificate
of title issued to the company, on the ground that the Director of Lands had no authority to conduct the
sale due to his failure to comply with the mandatory requirements for publication. The dismissal of the
government’s supplemental petition was premised on the ground that after its filing on November 28,
1968, nothing more was done by the petitioner Republic of the Philippines except to adopt all the
evidence and arguments of plaintiffs with whom it joined as parties-plaintiffs.

Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment in Civil
Case No. 755 filed on November 14, 1966 and his execution of the contract of lease on February 21,
1967 was just to avoid trouble. This was explained by him during cross-examination on January 21, 1970,
thus:

"It happened this way: we talked it over with my Mrs. that we better rent the place because even
though we do not know who really owns this portion to avoid trouble. To avoid trouble we better pay
while waiting for the case because at that time, it was not known who is the right owner of the place. So
we decided until things will clear up and determine who is really the owner, we decided to pay rentals"
(p. 169, t.s.n., Vol. 6).

In any case, Fleischer had given him up to December 31, 1968 (Exh. 10, p. 2, Defense Exhibits) within
which to vacate the land. He should have allowed appellant the peaceful enjoyment of his properties up
to that time, instead of chiselling the walls of his house and closing appellant’s entrance and exit to the
highway.

The following provisions of the Civil Code of the Philippines are in point:
"Art. 536. In no case may possession be acquired through force or intimidation as long as there is a
possessor who objects thereto. He who believes that he has an action or a right to deprive another of
the holding of a thing must invoke the aid of the competent court, if the holder should refuse to deliver
the thing."

"Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed
therein he shall be protected in or restored to said possession by the means established by the laws and
the Rules of Court" (Articles 536 and 539, Civil Code of the Philippines).

Conformably to the foregoing provisions, the deceased had no right to destroy or cause damage to
appellant’s house, nor to close his accessibility to the highway while he was pleading with them to stop
and talk things over with him. The assault on appellant’s property, therefore, amounts to unlawful
aggression as contemplated by law.

"Illegal aggression is equivalent to assault or at least threatened assault of immediate and imminent
kind" (People v. Encomiendas, 46 SCRA 522).

In the case at bar, there was an actual physical invasion of appellant’s property which he had the right to
resist, pursuant to Art. 429 of the Civil Code of the Philippines which provides:

"Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the
enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably
necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his
property" (Emphasis supplied).

The reasonableness of the resistance is also a requirement of the justifying circumstance of self-defense
or defense of one’s rights under paragraph 1 of Article 11, Revised Penal Code. When the appellant fired
his shotgun from his window, killing his two victims, his resistance was disproportionate to the attack.

WE find, however, that the third element of defense of property is present, i.e., lack of sufficient
provocation on the part of appellant who was defending his property. As a matter of fact, there was no
provocation at all on his part, since he was asleep at first and was only awakened by the noise produced
by the victims and their laborers. His plea for the deceased and their men to stop and talk things over
with him was no provocation at all.

Be that as it may, appellant’s act in killing the deceased was not justifiable, since not all the elements for
justification are present. He should therefore be held responsible for the death of his victims, but he
could be credited with the special mitigating circumstance of incomplete defense, pursuant to
paragraph 6, Article 13 of the Revised Penal Code.

The crime committed is homicide on two counts. The qualifying circumstance of treachery cannot be
appreciated in this case because of the presence of provocation on the part of the deceased. As WE held
earlier in People v. Manlapaz (55 SCRA 598), the element of a sudden unprovoked attack is therefore
lacking.

Moreover, in order to appreciate alevosia, "it must clearly appear that the method of assault adopted by
the aggressor was deliberately chosen with a special view to the accomplishment of the act without risk
to the assailant from any defense that the party assailed might have made. This cannot be said of a
situation where the slayer acted instantaneously . . ." (People v. Cañete, 44 Phil. 481).

WE likewise find the aggravating (qualifying) circumstance of evident premeditation not sufficiently
established. The only evidence presented to prove this circumstance was the testimony of Crisanto
Ibañez, 37 years old, married, resident of Maitum, South Cotabato, and a laborer of Fleischer and
Company, which may be summarized as follows:

"On August 20, 1968 (two days before the incident) at about 7:00 A.M., he was drying corn near the
house of Mr. and Mrs. Mamerto Narvaez at the crossing. Maitum, South Cotabato, when the accused
and his wife talked to him. Mrs. Narvaez asked him to help them, as he was working in the hacienda. She
further told him that if they fenced their house, there is a head that will be broken. Mamerto Narvaez
added ‘Noy, it is better that you will tell Mr. Fleischer because there will be nobody who will break his
head but I will be the one.’ He relayed this to Mr. Flaviano Rubia, but the latter told him not to believe
as they were only idle threats designed to get him out of the hacienda" (pp. 297-303, t.s.n., Vol. 2).

This single evidence is not sufficient to warrant appreciation of the aggravating circumstance of evident
premeditation. As WE have consistently held, there must be "direct evidence of the planning or
preparation to kill the victim, . . . it is not enough that premeditation be suspected or surmised, but the
criminal intent must be evidenced by notorious outward acts evincing the determination to commit the
crime" (People v. Ordioles, 42 SCRA 238). Besides, there must be a "showing" that the accused
premeditated the killing; that the culprit clung to their (his) premeditated act; and that there was
sufficient interval between the premeditation and the execution of the crime to allow them (him) to
reflect upon the consequences of the act" (People v. Gida, 102 SCRA 70).

Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the deceased Davis Fleischer,
neutralizes his credibility.

Since in the case at bar, there was no direct evidence of the planning or preparation to kill the victims
nor that the accused premeditated the killing, and clung to his premeditated act, the trial court’s
conclusion as to the presence of such circumstance may not be endorsed.

Evident premeditation is further negated by appellant pleading with the victims to stop the fencing and
destroying his house and to talk things over just before the shooting.

But the trial court has properly appreciated the presence of the mitigating circumstance of voluntary
surrender, it appearing that appellant surrendered to the authorities soon after the shooting.

Likewise, We find that passion and obfuscation attended the commission of the crime. The appellant
awoke to find his house being damaged and its accessibility to the highway as well as of his rice mill
bodega being closed. Not only was his house being unlawfully violated; his business was also in danger
of closing down for lack of access to the highway. These circumstances, coming so near to the time
when his first house was dismantled, thus forcing him to transfer to his only remaining house, must have
so aggravated his obfuscation that he lost momentarily all reason causing him to reach for his shotgun
and fire at the victims in defense of his rights. Considering the antecedent facts of this case, where
appellant had thirty years earlier migrated to this so-called "land of promise" with dreams and hopes of
relative prosperity and tranquility, only to find his castle crumbling at the hands of the deceased, his
dispassionate plea going unheeded - all these could be too much for any man — he should be credited
with this mitigating circumstance.
Consequently, appellant is guilty of two crimes of homicide only, the killing not being attended by any
qualifying nor aggravating circumstance, but extenuated by the privileged mitigating circumstance of
incomplete defense - in view of the presence of unlawful aggression on the part of the victims and lack
of sufficient provocation on the part of the appellant - and by two generic mitigating circumstance of
voluntary surrender and passion and obfuscation.

Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion temporal.
Pursuant to Article 69, supra, the penalty lower by one or two degrees shall be imposed if the deed is
not wholly excusable by reason of the lack of some of the conditions required to justify the same.
Considering that the majority of the requirements for defense of property are present, the penalty may
be lowered by two degrees, i.e., to prision correccional. And under paragraph 5 of Article 64, the same
may further be reduced by one degree, i.e., arresto mayor, because of the presence of two mitigating
circumstances and no aggravating circumstance.

The civil liability of the appellant should be modified. In the case of Zulueta v. Pan American World
Airways (43 SCRA 397), the award for moral damages was reduced because the plaintiff contributed to
the gravity of defendant’s reaction. In the case at bar, the victims not only contributed but they actually
provoked the attack by damaging appellant’s properties and business. Considering appellant’s standing
in the community, being married to a municipal councilor, the victims’ actuations were apparently
designed to humiliate him and destroy his reputation. The records disclose that his wife, councilor Feliza
Narvaez, was also charged in these two cases and detained without bail despite the absence of evidence
linking her to the killings. She was dropped as a defendant only upon motion of the prosecution dated
October 31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on November 4, 1968 (p. 58,
CFI rec. of Criminal Case No. 1815).

Moreover, these cases arose out of an inordinate desire on the part of Fleischer and Company, despite
its extensive landholdings in a Central Visayan province, to extend its accumulation of public lands to the
resettlement areas of Cotabato. Since it had the capability — financial and otherwise — to carry out its
land accumulation scheme, the lowly settlers, who uprooted their families from their native soil in Luzon
to take advantage of the government’s resettlement program, but had no sufficient means to fight the
big landowners, were the ones prejudiced. Thus, the moral and material suffering of appellant and his
family deserves leniency as to his civil liability.

Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision correccional or
arresto mayor and fine who has no property with which to meet his civil liabilities to serve a subsidiary
imprisonment at the rate of one (1) day for each P2.50. However, the amendment introduced by
Republic Act No. 5465 on April 21, 1969 made the provisions of Art. 39 applicable to fines only and not
to reparation of the damage caused, indemnification of consequential damages and costs of
proceedings. Considering that Republic Act 5465 is favorable to the accused who is not a habitual
delinquent, it may be given retroactive effect pursuant to Article 22 of the Revised Penal Code.

WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONLY TWO (2) HOMICIDES,
MITIGATED BY THE PRIVILEGED EXTENUATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL
AS BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND OBFUSCATION,
WITHOUT ANY AGGRAVATING CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN
IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF
DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P4,000.00) PESOS,
WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD FOR MORAL DAMAGES AND
ATTORNEY’S FEES.

CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST FOURTEEN (14) YEARS
NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST 22, 1968, HIS IMMEDIATE RELEASE IS HEREBY
ORDERED. NO COSTS.

SO ORDERED.

3. People v. Ulep, G.R. No. 132547, 20 September 2000

[G.R. No. 132547. September 20, 2000.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. SPO1 ERNESTO ULEP, Accused-Appellant.

DECISION

BELLOSILLO, J.:

In the aftermath of an incident where a certain Buenaventura Wapili 1 went berserk at Mundog
Subdivision, Poblacion Kidapawan, Cotabato, in the early morning of 22 December 1995, Police Officer
Ernesto Ulep was found guilty of murder and sentenced to death by the trial court for killing Wapili.
Ulep was also ordered to indemnify the heirs of the victim in the amount of P50,000.00 and to pay the
costs.

The evidence shows that at around two o’ clock in the morning of 22 December 1995 Buenaventura
Wapili was having a high fever and was heard talking insensibly to himself in his room. His brother-in-
law, Dario Leydan, convinced him to come out of his room and talk to him, but Wapili told Leydan that
he could not really understand himself. After a while, Wapili went back to his room and turned off the
lights. Moments later, the lights went on again and Leydan heard a disturbance inside the room, as if
Wapili was smashing the furniture. 3 Unable to pacify Wapili, Leydan called Pastor Bonid of the Alliance
Church of Kidapawan to help him "pray over" Wapili, but they could not enter the latter’s room as he
became wild and violent. Suddenly, Wapili bolted out of his room naked and chased Leydan. Thereafter,
Leydan with the aid of two (2) of his neighbors attempted to tie Wapili with a rope but was unsuccessful
as Wapili was much bigger in built and stronger than anyone of them. 4 Wapili, who appeared to have
completely gone crazy, kept on running without any particular direction.

Thus, Leydan went to the house of policewoman Norma Plando, a neighbor, and asked for assistance. As
Wapili passed by the house of Plando, he banged Plando’s vehicle parked outside. Using a hand-held
radio, Plando then contacted SPO1 Ernesto Ulep, SPO1 Edilberto Espadera and SPO2 Crispin Pillo, all
members of the PNP assigned to secure the premises of the nearby Roman Catholic Church of
Kidapawan. 5

At around four o’clock in the morning of the same day, SPO1 Ulep together with SPO1 Espadera and
SPO2 Pillo arrived at the scene on board an Anfra police service jeep. The three (3) police officers, all
armed with M-16 rifles, alighted from the jeep when they saw the naked Wapili approaching them. The
kind of weapon Wapili was armed with is disputed. The police claimed that he was armed with a bolo
and a rattan stool, while Wapili’s relatives and neighbors said he had no bolo, but only a rattan stool.

SPO1 Ulep fired a warning shot in the air and told Wapili to put down his weapons or they would shoot
him. But Wapili retorted "pusila!" ("fire!") and continued advancing towards the police officers. When
Wapili was only about two (2) to three (3) meters away from them, SPO1 Ulep shot the victim with his
M-16 rifle, hitting him in various parts of his body. As the victim slumped to the ground, SPO1 Ulep came
closer and pumped another bullet into his head and literally blew his brains out. 6

The post mortem examination of the body conducted by Dr. Roberto A. Omandac, Municipal Health
Officer of Kidapawan, showed that Wapili sustained five (5) gunshot wounds: one (1) on the right
portion of the head, one (1) on the right cheek, one (1) on the abdomen and two (2) on the right thigh:
SHEENT — gunshot wound on the right parietal area with fractures of the right temporoparietal bones
with evisceration of brain tissues, right zygomatic bone and right mandible, lateral aspect; CHEST AND
BACK — with powder burns on the right posterior chest; ABDOMEN — gunshot wound on the right
upper quadrant measuring 0.5 cm. in diameter (point of entry) with multiple powder burns around the
wound and on the right lumbar area (point of exit). Gunshot wound on the suprapubic area (point of
entry); EXTREMETIES — with gunshot wounds on the right thigh, upper third, anterior aspect measuring
0.5 cm. in diameter with powder burns (point of entry) and right buttocks measuring 0.5 cm. in diameter
(point of exit); gunshot wound on the right thigh, upper third, posterolateral aspect; CAUSE OF DEATH
— multiple gunshot wounds. 7

Dr. Omandac concluded that the shots were fired at close range, perhaps within twenty-four (24) inches,
judging from the powder burns found around some of the wounds in the body of the victim, 8 and that
the wound in the head, which caused the victim’s instantaneous death, was inflicted while "the victim
was in a lying position." 9

The Office of the Ombudsman for the Military filed an Information for murder against SPO1 Ulep. The
accused pleaded not guilty to the charge on arraignment, and insisted during the trial that he acted in
self-defense. However, on 28 October 1997, the trial court rendered judgment convicting the accused of
murder and sentencing him to death —

The means employed by the accused to prevent or repel the alleged aggression is not reasonable
because the victim, Buenaventura Wapili, was already on the ground, therefore, there was no necessity
for the accused to pump another shot on the back portion of the victim’s head. Clearly the gravity of the
wounds sustained by the victim belies the pretension of the accused that he acted in self-defense. It
indicates his determined effort to kill the victim. It is established that accused (sic) was already in the
ground that would no longer imperil the accused’s life. The most logical option open to the accused was
to inflict on the victim such injury that would prevent the victim from further harming him. The court is
not persuaded by the accused’s version because if it is true that the victim attacked him and his life was
endangered — yet his two (2) companions SPO1 Espadera and SPO2 Pillo did not do anything to help
him but just witless the incident — which is unbelievable and unnatural behavior of police officers . . . . .

WHEREFORE, prescinding from the foregoing, judgment is hereby rendered finding the accused Ernesto
Ulep guilty beyond reasonable doubt of the crime of Murder, the accused is hereby sentenced to suffer
the extreme penalty of Death, to indemnify the heirs of Buenaventura Wapili the amount of P50,000.00
without subsidiary imprisonment in case of insolvency and to pay the costs.
Death penalty having been imposed by the trial court, the case is now before us on automatic review.
Accused-appellant prays for his acquittal mainly on the basis of his claim that the killing of the victim
was in the course of the performance of his official duty as a police officer, and in self-defense.

Preliminarily, having admitted the killing of Wapili, Accused-appellant assumed the burden of proving
legal justification therefor. He must establish clearly and convincingly how he acted in fulfillment of his
official duty and/or in complete self-defense, as claimed by him; otherwise, he must suffer all the
consequences of his malefaction. He has to rely on the quantitative and qualitative strength of his own
evidence, not on the weakness of the prosecution; for even if it were weak it could not be disbelieved
after he had admitted the killing. 10

Before the justifying circumstance of fulfillment of a duty under Art. 11, par. 5, of The Revised Penal
Code may be successfully invoked, the accused must prove the presence of two (2) requisites, namely,
that he acted in the performance of a duty or in the lawful exercise of a right or an office, and that the
injury caused or the offense committed be the necessary consequence of the due performance of duty
or the lawful exercise of such right or office. The second requisite is lacking in the instant case.

Accused-appellant and the other police officers involved originally set out to perform a legal duty: to
render police assistance, and restore peace and order at Mundog Subdivision where the victim was then
running amuck. There were two (2) stages of the incident at Mundog Subdivision. During the first stage,
the victim threatened the safety of the police officers by menacingly advancing towards them,
notwithstanding accused-appellant’s previous warning shot and verbal admonition to the victim to lay
down his weapon or he would be shot. As a police officer, it is to be expected that accused-appellant
would stand his ground. Up to that point, his decision to respond with a barrage of gunfire to halt the
victim’s further advance was justified under the circumstances. After all, a police officer is not required
to afford the victim the opportunity to fight back. Neither is he expected – when hard pressed and in the
heat of such an encounter at close quarters – to pause for a long moment and reflect coolly at his peril,
or to wait after each blow to determine the effects thereof.

However, while accused-appellant is to be commended for promptly responding to the call of duty when
he stopped the victim from his potentially violent conduct and aggressive behavior, he cannot be
exonerated from overdoing his duty during the second stage of the incident — when he fatally shot the
victim in the head, perhaps in his desire to take no chances, even after the latter slumped to the ground
due to multiple gunshot wounds sustained while charging at the police officers. Sound discretion and
restraint dictated that accused-appellant, a veteran policeman, 11 should have ceased firing at the
victim the moment he saw the latter fall to the ground. The victim at that point no longer posed a threat
and was already incapable of mounting an aggression against the police officers. Shooting him in the
head was obviously unnecessary. As succinctly observed by the trial court —

Once he saw the victim he fired a warning shot then shot the victim hitting him on the different parts of
the body causing him to fall to the ground and in that position the accused shot the victim again hitting
the back portion of the victim’s head causing the brain to scatter on the ground . . . the victim,
Buenaventura Wapili, was already on the ground. Therefore, there was no necessity for the accused to
pump another shot on the back portion of the victim’s head.

It cannot therefore be said that the fatal wound in the head of the victim was a necessary consequence
of accused-appellant’s due performance of a duty or the lawful exercise of a right or office.
Likewise, the evidence at hand does not favor his claim of self-defense. The elements in order for self-
defense to be appreciated are: (a) unlawful aggression on the part of the person injured or killed by the
accused; (b) reasonable necessity of the means employed to prevent or repel it; and, (c) lack of sufficient
provocation on the part of the person defending himself. 12

The presence of unlawful aggression is a condition sine qua non. There can be no self-defense, complete
or incomplete, unless the victim has committed an unlawful aggression against the person defending
himself. 13 In the present case, the records show that the victim was lying in a prone position on the
ground — bleeding from the bullet wounds he sustained, and possibly unconscious — when accused-
appellant shot him in the head. The aggression that was initially begun by the victim already ceased
when accused-appellant attacked him. From that moment, there was no longer any danger to his life.

This Court disagrees with the conclusion of the court a quo that the killing of Wapili by accused-
appellant was attended by treachery, thus qualifying the offense to murder. We discern nothing from
the evidence that the assault was so sudden and unexpected and that accused-appellant deliberately
adopted a mode of attack intended to insure the killing of Wapili, without the victim having the
opportunity to defend himself.

On the contrary, the victim could not have been taken by surprise as he was given more than sufficient
warning by accused-appellant before he was shot, i.e., Accused-appellant fired a warning shot in the air,
and specifically ordered him to lower his weapons or he would be shot. The killing of Wapili was not
sought on purpose. Accused-appellant went to the scene in pursuance of his official duty as a police
officer after having been summoned for assistance. The situation that the victim, at the time accused-
appellant shot him in the head, was prostrate on the ground is of no moment when considering the
presence of treachery. The decision to kill was made in an instant and the victim’s helpless position was
merely incidental to his having been previously shot by accused-appellant in the performance of his
official duty.

There is treachery when the offender commits any of the crimes against persons, employing means,
methods, or forms in the execution thereof which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended party might make. 14 Considering
the rule that treachery cannot be inferred but must be proved as fully and convincingly as the crime
itself, any doubt as to its existence must be resolved in favor of Accused-Appellant. Accordingly, for
failure of the prosecution to prove treachery to qualify the killing to murder, Accused-appellant may
only be convicted of homicide.

Indeed, to hold him criminally liable for murder and sentence him to death under the circumstances
would certainly have the effect of demoralizing other police officers who may be called upon to
discharge official functions under similar or identical conditions. We would then have a dispirited police
force who may be half-hearted, if not totally unwilling, to perform their assigned duties for fear that
they would suffer the same fate as that of Accused-Appellant.

This brings us to the imposition of the proper penalty.

We find in favor of accused-appellant the incomplete justifying circumstance of fulfillment of a duty or

lawful exercise of a right. Under Art. 69 of The Revised Penal Code, "a penalty lower by one or two
degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of
the lack of some of the conditions required to justify the same or to exempt from criminal liability in the
several cases mentioned in Arts. 11 and 12, provided that the majority of such conditions be present.
The courts shall impose the penalty in the period which may be deemed proper, in view of the number
and nature of the conditions of exemption present or lacking."

Incomplete justification is a special or privileged mitigating circumstance, which, not only cannot be
offset by aggravating circumstances but also reduces the penalty by one or two degrees than that
prescribed by law. 15 Undoubtedly, the instant case would have fallen under Art. 11, par. 5 of The
Revised Penal Code had the two (2) conditions therefor concurred which, to reiterate: first, that the
accused acted in the performance of a duty or the lawful exercise of a right or office; and second, that
the injury or offense committed be the necessary consequence of the due performance of such duty or
the lawful exercise of such right or office. But here, only the first condition was fulfilled. Hence, Art. 69 is
applicable, although its "that the majority of such conditions be present," is immaterial since there are
only two (2) conditions that may be taken into account under Art. 11, par. 5. Article 69 is obviously in
favor of the accused as it provides for a penalty lower than that prescribed by law when the crime
committed is not wholly justifiable. The intention of the legislature, obviously, is to mitigate the penalty
by reason of the diminution of either freedom of action, intelligence, or intent, or of the lesser
perversity of the offender. 16

We likewise credit in favor of accused-appellant the mitigating circumstance of voluntary surrender. The
police blotter of Kidapawan Municipal Police Station shows that immediately after killing
Wapili, Accused-appellant reported to the police headquarters and voluntarily surrendered himself. 17

Article 249 of The Revised Penal Code prescribes for the crime of homicide the penalty of reclusion
temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years an incomplete
justifying circumstance of fulfillment of a duty, the penalty should be one (1) degree lower, i.e., from
reclusion temporal to prision mayor, pursuant to Art. 69, in relation to Art. 61, par. 2, and Art. 71, of the
Code, to be imposed in its minimum period since accused-appellant voluntarily surrendered to the
authorities and there was no aggravating circumstance to offset this mitigating circumstance. Applying
the Indeterminate Sentence Law, the maximum of the penalty shall be taken from the minimum period
of prision mayor, the range of which is six (6) years and one (1) day to eight (8) years, while the
minimum shall be taken from the penalty next lower in degree which is prision correccional, in any of its
periods, the range of which is six (6) months and one (1) day to six (6) years.

The right to kill an offender is not absolute, and may be used only as a last resort, and under
circumstances indicating that the offender cannot otherwise be taken without bloodshed. The law does
not clothe police officers with authority to arbitrarily judge the necessity to kill. 18 It may be true that
police officers sometimes find themselves in a dilemma when pressured by a situation where an
immediate and decisive, but legal, action is needed. However, it must be stressed that the judgment and
discretion of police officers in the performance of their duties must be exercised neither capriciously nor
oppressively, but within reasonable limits. In the absence of a clear and legal provision to the contrary,
they must act in conformity with the dictates of a sound discretion, and within the spirit and purpose of
the law. 19 We cannot countenance trigger-happy law enforcement officers who indiscriminately
employ force and violence upon the persons they are apprehending. They must always bear in mind that
although they are dealing with criminal elements against whom society must be protected, these
criminals are also human beings with human rights.

WHEREFORE, the appealed Judgment is MODIFIED. Accused-appellant SPO1 ERNESTO ULEP is found
guilty of HOMICIDE, instead of Murder, and is sentenced to an indeterminate prison term of four (4)
years, two (2) months and ten (10) days of prision correccional medium as minimum, to six (6) years,
four (4) months and twenty (20) days of prision mayor minimum as maximum. He is further ordered to
indemnify the heirs of Buenaventura Wapili in the amount of P50,000.00, and to pay the costs.

SO ORDERED.

4. Guillermo v. People, G.R. No. 153287, 20 January 2009

G.R. No. 153287 June 30, 2008

NOEL GUILLERMO y BASILIANO, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

BRION, J.:

For our review is the petition1 filed by the petitioner Noel Guillermo y Basiliano (petitioner) against the
decision2 dated November 15, 2001 and the resolution3 dated April 5, 2002 of the Court of Appeals (CA)
in CA-G.R. CR No. 24181. The challenged decision4 affirmed the decision of the Regional Trial Court
(RTC), Branch 18, Roxas City convicting and penalizing the petitioner for the crime of homicide with an
indeterminate sentence of six (6) years of prision correccional, as minimum, to ten (10) years of prision
mayor, as maximum. The assailed resolution, on the other hand, denied the petitioner’s motion for
reconsideration.

BACKGROUND

For the death of one Winnie Alon (Winnie), the prosecution charged Arnaldo Socias,5 Joemar Palma, and
the petitioner with the crime of homicide under an Information that states:

xxx

That at or about 5:40 o’clock in the afternoon, on or about July 21, 1996, at Brgy. Poblacion
Takas, Municipality of Cuartero, Province of Capiz, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating[,] and mutually helping
one another, armed with knives and with intent to kill, did then and there willfully, unlawfully
and feloniously assault, attack and stab one WINNIE ALON y BILLANES, hitting the latter and
inflicting multiple stab wounds on the different parts of his body, which injuries caused his
death shortly thereafter.

That due to the untimely death of Winnie Alon y Billanes[,] his heirs are entitled to death
indemnity in the amount of P50,000.00 and other damages pursuant to the provisions of the
Civil Code of the Philippines.

ACTS CONTRARY TO LAW.6

The petitioner and his co-accused were arraigned and pleaded not guilty to the offense charged with the
assistance of their counsel de parte. The prosecution presented Vicente Alon (Vicente) and Eddie Roque
(Eddie) as witnesses in the trial that followed; Dr. Ricardo Betita, Jr. (Dr. Betita), Baby Lou Felipe (Baby
Lou), and the three accused – the petitioner, Arnaldo Socias, and Joemar Palma – took the witness stand
for the defense.

The material points in the testimony of Vicente were summarized by the trial court in its decision7 as
follows:

Vicente Alon averred that at 5:40 in the afternoon of July 21, 1996, Winnie Alon, Wilfredo
Cabison, Eddie Roque, and him [sic] were at the public market of Cuartero, at [sic] the
restaurant of Melecio Heyres to eat.8 Noel Guillermo, Arnel Socias, and Joemar Palma were at
the restaurant drinking beer. Noel Guillermo and Arnel Socias are known to him since childhood
since they come from the same barangay.9 Joemar Palma is known to him only recently in that
incident.10

While sitting at the table inside the restaurant, an altercation between Arnel Socias and Winnie
Alon regarding the cutting of wood by a chain saw [sic] transpired. Noel Guillermo suddenly took
hold of Winnie Alon and stabbed the latter at the neck three (3) times.11 Joemar Palma went to
the kitchen and got a knife. Arnel Socias hit him with a bottle of beer by [sic] the head. He fell
down and lost consciousness.12 [Footnotes referring to the pertinent parts of the record
supplied]

Significantly, Vicente admitted on cross-examination that he and Winnie were already drunk even
before they went to the restaurant where the stabbing took place.13

Eddie corroborated the testimony of Vicente on material points, particularly on the state of their
intoxication even before going to the scene of the stabbing. His testimony on what transpired at the
restaurant was summarized in the RTC decision14 as follows:

Eddie Roque alleged that at around 5:40 o’clock in the afternoon of July 21, 1996, he, together
with Winnie Alon, Vicente Alon and Wilfredo Cabison, were [sic] inside the restaurant of Mrs.
Heyres at Cuartero Public Market to leave their tools of the chain saw [sic] and to eat and
drink.15 Noel Guillermo, Arnel Socias, and Joemer Palma were ahead of them to [sic] the
restaurant and were drinking beer. They invited them and they joined them.16 Before each of
them could fully consume a bottle served upon each of them, Winnie Alon and Arnel Socias
argued about the cutting of wood by means of a chain saw [sic]. The argument was so heated
that each of the protagonists stood up and Arnel Socias took 2 bottles which were thrown to
Vicente Alon who was hit on the forehead.17

Noel Guillermo hugged or embraced Winnie Alon and stabbed him three times (3) on [sic] the
neck with a Batangueño knife. Arnel Socias went around, then behind, and stabbed Winnie Alon
once, on the left side of his body, just below his left armpit, with a pointed object, but he could
not determine what weapon was used. Joemar Palma also helped in stabbing Winnie Alon once,
hitting him at the right side of his body.18
 Winnie Alon resisted trying to struggle [sic], but could not move because he was ganged up by
the three.19 [Footnotes referring to the pertinent parts of the record supplied]

Dr. Betita, rural health physician of Cuartero, Capiz, declared on the witness stand that he conducted on
July 22, 1996 a postmortem examination on the body of Winnie20 and made the following findings:

POSTMORTEM EXAMINATION

The postmortem examination is done on the remains of Winnie Alon, 31 years old, single, from
Malagab-i, Cuartero, Capiz, was stab [sic] to death at about 5:40 P.M. at Pob. Takas, Public
Market, Cuartero, Capiz sustaining the following injuries:

1. Stab wound 1.5 x 3 cm with 6-8 cm depth [L]eft anterior chest at level of 5th rib mid
clavicular area.

2. Stab wound 2 x 3 cm with 5 cm depth anterior neck just above the sternum.

3. Stab wound 2 x 3 cm with 3-5 cm depth at epigastric area.

The most probable cause of death was massive [H]emorrhage secondary to multiple stab
wounds.21

According to Dr. Betita, the cause of death was massive hemorrhage due to multiple stab wounds.22 He
added that the three (3) stab wounds were probably caused by a sharp-bladed instrument like a knife.23

The petitioner gave a different version of the events, summarized in the RTC decision as follows:

Noel Guillermo testified that at 5:30 in the afternoon of July 21, 1996, he was in Cuartero at the
restaurant of Melecio Heyres, husband of Gertrudes Heyres, together with Arnel Socias and
Joemar Palma drinking beer, consuming only about half a bottle, when Winnie Alon, Eddie
Roque, Vicente Alon, and Wilfredo Cabison arrived and ordered beer from Babylou Felipe.
Winnie Alon came to him and requested to join them in their table which he affirmatively
answered. Winnie Alon then had an altercation with Arnel Socias regarding "labtik" (string used
in marking wood to be cut).24

Winnie Alon challenged Arnel Socias to a contest on clean or straight cutting of wood. Arnel
declined the challenge claiming that he is only an assistant to his brother-in-law. Winnie Alon
got angry and told him that he has long been in [the] chain saw [sic] business but "you’re stupid"
("gago ka!"). Arnel responded: "If the wood is crooked and you would deviate from line, you’re
stupid."25

Winnie Alon suddenly stood up and said to Arnel: "Don’t ever call me stupid," pointing his finger
to Arnel. He told them to settle the matter peacefully as they are friend [sic], but Winnie Alon
was so furious and grabbed Arnel Socias by the collar. Arnel tried to release the hold of Winnie
from his collar. While he was pacifying the two telling them to settle the matter peacefully,
Winnie Alon turned to him and said: "you also," then struck him with a beer bottle. He was hit at
the right top of his head thrice. He stood up and boxed Winnie who again picked up a bottle
 break [sic] it against the wall, and struck him with the broken bottle. He stepped back, pulled his
knife, and stabbed him three (3) times but cannot remember what part of his body was hit by
his successive stabs.26 x x x [Footnotes referring to the pertinent parts of the record supplied]

Baby Lou, a waitress at the restaurant of Melecio Heyres, narrated that in the afternoon of July 21, 1996,
the petitioner, together with Arnaldo and Joemar, arrived at the restaurant and ordered beer.27 A few
minutes later, Vicente, Eddie, Winnie, and Wilfredo Cabison arrived and also ordered beer. She then saw
the group of Winnie transfer to the table occupied by the petitioner and his companions. Thereafter, the
group had a heated argument among themselves regarding "labtik."28 In the course of the exchange, she
saw Winnie strike the petitioner on the head with a bottle. Winnie and the petitioner then grappled with
each other. At that point, she hid behind the refrigerator and did not see what happened next.
Afterwards, she saw the bloodied body of Winnie lying outside the restaurant.29 She likewise saw the
petitioner outside the restaurant; his shirt was splattered with blood.30

Dr. Betita, this time testifying as defense witness, stated, among others, that the contusion hematoma
suffered by the petitioner could have been caused by a hard object like a beer bottle, while the linear
abrasion could have been caused by a fingernail.31

Arnaldo Socias testified that on July 21 1996, he, together with the petitioner and Joemar, was drinking
beer at the restaurant of Melecio Heyres32 when Winnie stood up and asked if they (Winnie’s group)
could join them at their table. Arnaldo and his companions agreed. Winnie’s group then transferred to
the table of Arnaldo’s group.33

The discussion took a bad turn when the matter of cutting by chainsaw was raised. Winnie challenged
Arnaldo to a contest to determine who could do the cleanest cut. He declined and claimed he does not
know how to operate a chainsaw. To this, Winnie retorted, "You are already old in that business, but
your finished product is still crooked. You are all dumb." He countered, "If the wood itself is crooked,
you cannot have a straight lumber. You are dumb if you insist you can." At that point, Winnie stood up
and grabbed him by the collar. The petitioner intervened and told them to settle their differences
peacefully. Winnie then grabbed a bottle and struck the petitioner on the head three times.34 Arnaldo
added that he did not see who stabbed Winnie, because while the petitioner and Winnie were
grappling, he was busy fighting with Vicente.35

Joemar Palma testified that in the afternoon of July 21, 1996, the petitioner, Arnaldo, and he were
drinking beer at the restaurant of Mr. Heyres when four persons, who appeared to be drunk (later
identified as Vicente, Eddie, Winnie, and Wilfredo Cabison), entered the restaurant and ordered
beer.36 After the latter group joined them at their table, Winnie and Arnaldo had a heated discussion
regarding expertise in operating a chainsaw. Winnie grabbed the shirt collar of Arnaldo in the course of
the heated exchange.37 The petitioner advised them to calm down, but Winnie struck him (petitioner) on
the head with a beer bottle three times. Vicente also tried to strike Arnaldo, but the latter managed to
duck and so he (Joemar) took the hit instead. Thereafter, he and Arnaldo engaged Vicente.38

The RTC, in its decision of January 8, 2000, convicted the petitioner of the crime of homicide, but
acquitted Arnaldo and Joemar. The dispositive portion of the decision reads:

WHEREFORE, the evidence on record having established the guilt of Noel Guillermo as principal
in the crime of homicide for stabbing three (3) times Winnie Alon which caused the latter’s
 death, attended by a special or privileged mitigating circumstance of incomplete justification,
and without any aggravating or mitigating circumstances attendant, he is imposed an
indeterminate sentence of six (6) years of prision correccional, as minimum, to ten (10) years
of prision mayor, as maximum, with the corresponding accessory penalties, and to pay death
indemnity of P50,000.00 to the heirs of Winnie Alon, in the service of his sentence he shall be
credited the period that he undergone [sic] preventive imprisonment, conformably with Art. 29
of the Code.

Costs against the accused.

For insufficiency of evidence, the accused Arnaldo Socias and Joemar Palma are acquitted of the
crime charged. The bail bond for their provisional liberty is CANCELLED AND DISCHARGED.

SO ORDERED.39 [Emphasis in the original]

The petitioner appealed to the CA whose decision is now assailed in the present petition. The petitioner
essentially claims that the RTC and the CA erred in failing to recognize the existence of all the elements
of self-defense.

THE COURT’S RULING

We resolve to deny the petition for lack of merit.

Plea of Self-Defense

We note at the outset that the petitioner does not deny that he killed Winnie. He expressly made this
admission in his testimony of July 15, 1999:

ATTY. VILLAREAL:

Q: And what did you do when he struck you with the bottle?

NOEL GUILLERMO:

A: I was able to move backward and I realized that I have a knife on [sic] the back of my waist.

Q: And what did you do with your knife?

A: I then stabbed him.

Q: How many times?

A: About three times as far as I can remember.40 [Emphasis supplied]

The petitioner justifies the stabbing as an act of self-defense.

As the lower courts did, we do not recognize that the petitioner fully acted in self-defense.
As a rule, the prosecution bears the burden of establishing the guilt of the accused beyond reasonable
doubt. However, when the accused admits the killing and, by way of justification, pleads self-defense,
the burden of evidence shifts; he must then show by clear and convincing evidence that he indeed acted
in self-defense. For that purpose, he must rely on the strength of his own evidence and not on the
weakness of the prosecution’s evidence.41

The elements that the accused must establish by clear and convincing evidence to successfully plead
self-defense are enumerated under Article 11(1) of the Revised Penal Code:

ART. 11. Justifying circumstances. – The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself.

As a justifying circumstance, self-defense may be complete or incomplete. It is complete when all the
three essential requisites are present; it is incomplete when the mandatory element of unlawful
aggression by the victim is present, plus any one of the two essential requisites.42

In the present case, we find it beyond dispute that the victim Winnie started the fight that ended in his
death; he struck the petitioner on the head when the latter intervened to pacify the quarrel between
Winnie and Arnaldo. In short, the victim was the unlawful aggressor while the petitioner was in the
lawful act of pacifying the quarreling parties; thus, the latter has in his favor the element of unlawful
aggression by the victim.

We consider it also established that the petitioner did not provoke the fight that ensued; he was a third
party to the quarrel between the original protagonists – Winnie and Arnaldo – and did not at all initiate
any provocation to ignite the quarrel. Thus, the petitioner also has the element of lack of sufficient
provocation in his favor.

The third element – the reasonableness of the means to repel the aggression – is the critical element
that the lower courts found lacking in the petitioner’s case. Generally, reasonableness is a function of
the nature or severity of the attack or aggression confronting the accused, the means employed to repel
this attack, the surrounding circumstances of the attack such as its place and occasion, the weapons
used, and the physical condition of the parties – which, when viewed as material considerations, must
show rational equivalence between the attack and the defense.43 In People v. Escarlos,44 this Court held
that the means employed by a person invoking self-defense must be reasonably commensurate to the
nature and the extent of the attack sought to be averted. In Sienes v. People,45 we considered the nature
and number of wounds inflicted on the victim as important indicia material to a plea for self-defense.

In the present case, the attack on the petitioner came as he intervened in a quarrel between the victim
and another party. As we concluded above, we deem it established that the victim was the unlawful
aggressor who attacked the petitioner. Physical evidence shows that indeed the petitioner suffered the
following injuries:

1. Contusion Hematoma 2 x 3 left parital area just above the left ear.

2. Linear abrasion 3 – 4 cm left hand medial side.

3. Linear abrasion 2 – 3 cm left head ulnar side.46

The weapons that caused these injuries were a beer bottle and, quite possibly, fingernails as the victim
and the appellant grappled with each other.47 In contrast, the victim suffered three stab wounds: at the
neck, at the abdomen and in the chest. The weapon used was a Batangas knife that admittedly belonged
to the petitioner. Thus, the physical evidence in the case stands.

The petitioner claims self-defense on the position that Winnie, after hitting him on the head three times
with an empty bottle, grabbed another bottle, broke it against the wall, and thrust it towards him. It was
at this point that the petitioner used his knife to inflict Winnie’s fatal wounds. Clearly, the petitioner
wants to impress upon us that his response to Winnie’s attack was reasonable; he used a knife to repel
an attacker armed with a broken beer bottle.

Several reasons militate against our acceptance of the petitioner’s version and interpretation of events.

First, there is intrinsic disproportion between a Batangas knife and a broken beer bottle. Although this
disproportion is not conclusive and may yield a contrary conclusion depending on the circumstances, we
mention this disproportionality because we do not believe that the circumstances of the case dictate a
contrary conclusion.

Second, physical evidence shows that the petitioner suffered only one contusion hematoma at the
parietal area above the left ear. Unless the three (3) beer bottle blows that the petitioner alleged all
landed on the same site – a situation that could have incapacitated the petitioner – the more plausible
conclusion from the physical evidence is that the petitioner received only one blow, not three as he
claimed. Contrary to what the petitioner wishes to imply, he could not have been a defender reeling
from successive head blows inflicted by the victim.

Third, the victim, Vicente, and Eddie, were already drunk when they arrived at the restaurant before the
fatal fight. This state of intoxication, while not critically material to the stabbing that transpired, is still
material for purposes of defining its surrounding circumstances, particularly the fact that a broken beer
bottle might not have been a potent weapon in the hands of a drunk wielder.

Fourth, and as the CA aptly observed as well, the knife wounds were all aimed at vital parts of the body,
thus pointing against a conclusion that the petitioner was simply warding off broken beer bottle thrusts
and used his knife as a means commensurate to the thrusts he avoided. To be precise, the petitioner
inflicted on the victim: one stab wound at the chest, 6-8 cms. deep, at the 5th rib clavicular area, or in
plainer terms, in the area of the victim’s heart; another was at the neck, 5 cms. deep, just above the
breastbone; and a last one was in the abdominal area, 3-5 cms. deep. The depth of these wounds
shows the force exerted in the petitioner’s thrusts while the locations are indicative that the thrusts
were all meant to kill, not merely to disable the victim and thereby avoid his drunken thrusts.
Fifth, in appreciating the facts, the RTC and the CA were one in the conclusion to disbelieve the
petitioner’s allegation of complete self-defense, as reflected in the CA’s further cogent observations
that:

(b) If, indeed the deceased picked up another bottle of beer, hit the same against the wall,
resulting in the breakage of the bottle, and with it, hit the Appellant anew, it behooved the
Appellant to have rushed posthaste to the police station and report the stabbing, with the
request that a policeman be dispatched to the locus criminis and confirm the presence of broken
pieces of beer bottle in the restaurant. The Appellant did not. He and his companions, Arnaldo
and Joemar, fled from the scene, via the back door, and escaped on board a motorcycle.

(c) Neither Arnaldo, Joemar, or Babylou corroborated the claim of the Appellant that, after the
Appellant boxed Winnie, who lost his hold of the bottle of beer, he picked up another bottle and
struck the bottle of beer against the wall and hit the Appellant with the bottle. The appellant
relied solely on is own testimony to buttress his defense.

(d) The Municipal Trial Court conducted a preliminary investigation of the "Criminal Complaint"
filed against the Appellant, Arnaldo, and Joemar. However, the Appellant did not submit any
"Counter-Affidavit" claiming that he was impelled to stab Winnie three (3) successive times on
mortal parts of his body and killing [sic] him because Winnie picked up a bottle, hit the same
against a wall and hit the Appellant anew with the broken bottle.48 [Underscoring in the original]

We see no reason to disturb these findings as they are based on existing evidence, and the conclusions
drawn therefrom are patently reasonable. We have time and again held that the findings of facts of the
trial court, its assessment of the credibility of witnesses and the probative weight of their testimonies,
and the conclusions based on the these factual findings are to be given the highest respect; the trial
court enjoys the unique advantage of being able to observe, at close range, the conduct and deportment
of witnesses as they testify. These factual findings, when adopted and confirmed by the CA, are final and
conclusive and need not be reviewed on the appeal to us. We are not a trier of facts; as a rule, we do
not weigh anew the evidence already passed on by the trial court and affirmed by the CA.49 Only after a
showing that the courts below ignored, overlooked, misinterpreted, or misconstrued cogent facts and
circumstances of substance that would alter the outcome of the case, are we justified in undertaking a
factual review. No such exceptional grounds obtain in this case.

In sum, we rule that there was no rational equivalence between the means of the attack and the means
of defense sufficient to characterize the latter as reasonable.

The Proper Penalty

The imposable penalty for homicide under Article 249 of the Revised Penal Code is reclusion temporal in
its full range.50 Article 69 of the Code however provides that:

ART. 69. Penalty to be imposed when the crime committed is not wholly excusable. — A penalty
lower by one or two degrees than that prescribed by law shall be imposed if the deed is not
wholly excusable by reason of the lack of some of the conditions required to justify the same or
to exempt from criminal liability in the several cases mentioned in Articles 11 and 12, provided
that the majority of such conditions be present. The courts shall impose the penalty in the
 period which may be deemed proper, in view of the number and nature of the conditions of
exemption present or lacking.

Since the petitioner’s plea of self-defense lacks only the element of "reasonable means," the petitioner
is, therefore, entitled to the privileged mitigating circumstance of incomplete self-defense.
Consequently, the penalty for homicide may be lowered by one or two degrees, at the discretion of the
court.

The penalty which the RTC imposed and which the CA affirmed lowered the penalty of reclusion
temporal by one degree, which yields the penalty of prision mayor. From this penalty, the maximum of
the indeterminate penalty is determined by taking into account the attendant modifying circumstances,
applying Article 64 of the Revised Penal Code.51 Since no aggravating nor mitigating circumstance
intervened, the maximum of the indeterminate penalty shall be prision mayor in its medium period
whose range is from 8 years and 1 day to 10 years.

To determine the minimum of the indeterminate penalty, prision mayor has to be reduced by one
degree without taking into account the attendant modifying circumstances. The penalty lower by one
degree is prision correccional whose range is from 6 months and 1 day to 6 years. The trial court is given
the widest discretion to fix the minimum of the indeterminate penalty provided that such penalty is
within the range of prision correccional.

The CA affirmed the indeterminate penalty of six (6) years prision correccional, as minimum, to ten (10)
years of prision mayor, as maximum, as imposed by the RTC on petitioner. We affirm this to be the
legally correct and proper penalty to be imposed upon petitioner.

We also affirm the P50,000.00 death indemnity awarded to Winnie’s heirs, in accordance with prevailing
jurisprudence.52

We add that moral damages should be awarded as they are mandatory in murder and homicide cases
without need of allegation and proof other than the death of the victim.53 The award of P50,000.00 as
moral damages is, therefore, in order.

WHEREFORE, in light of all the foregoing, we DENY the petition. The assailed decision and resolution of
the CA dated November 15, 2001 and April 5, 2002, respectively, in CA-G.R. CR No. 24181
are AFFIRMED with the MODIFICATION that the petitioner is ordered to pay the heirs of Winnie Alon
the amount of P50,000.00 as moral damages. Costs against the petitioner.

SO ORDERED.

5. People v. Ural, G.R. No. L-30801, 27 March 1974

[G.R. No. L-30801. March 27, 1974.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. DOMINGO URAL, Accused-Appellant.

Solicitor General Felix Q. Antonio, Assistant Solicitor General Antonlo A. Torres and Solicitor Vicente
 P. Evangelista for Plaintiff-Appellee.

Vicente Cerilles and Emeliano Deleverio for Accused-Appellant.

DECISION

AQUINO, J.:

This is an appeal of defendant Domingo Ural from the decision of Judge Vicente G. Ericta of the Court of
First Instance of Zamboanga del Sur, convicting him of murder, sentencing him to reclusion perpetua,
and ordering him to indemnify the heirs of Felix Napola in the sum of twelve thousand pesos and to pay
the costs (Criminal Case No. 3280).

The judgment of conviction was based on the testimony of Brigido Alberto, a twenty-six year old former
detention prisoner in Buug, Zamboanga del Sur. He had been accused of murder and then set at liberty
on June 9, 1966 after posting bail. He went to Barrio Camongo, Dumalinao where his father resided. On
July 31, 1966, he intended to go to his residence at Barrio Upper Lamari, Buug but night overtook him in
the town. He decided to sleep in the Buug municipal building where there would be more security.

Upon arrival in the municipal building at around eight o’clock, he witnessed an extraordinary
occurrence. He saw Policeman Ural (with whom he was already acquainted) inside the jail. Ural was
boxing the detention prisoner, Felix Napola. As a consequence of the fistic blows, Napola collapsed on
the floor. Ural, the tormentor, stepped on his prostrate body.

Ural went out of the cell. After a short interval, he returned with a bottle. He poured its contents on
Napola’s recumbent body. Then, he ignited it with a match and left the cell. Napola screamed in agony.
He shouted for help. Nobody came to succor him.

Much perturbed by the barbarity which he had just seen, Alberto left the municipal building. Before his
departure, Ural cautioned him: "You better keep quiet of what I have done" (sic) Alberio did not sleep
anymore that night. From the municipal building, he went to the crossing, where the cargo trucks
passed. He hitchhiked in a truck hauling iron ore and went home.

Doctor Luzonia R. Bakil, the municipal health officer, certified that the thirty-year old victim, whom she
treated twice, sustained second-degree burns on the arms, neck, left side of the face and one-half of the
body including the back (Exh. A). She testified that his dermis and epidermis were burned. If the burns
were not properly treated, death would unsue from toxemia and tetanus infection. "Without any
medical intervention", the burns would "cause death", she said. She explained that, because there was
water in the burnt area, secondary infection would set in, or there would be complications.

Napola died on August 25, 1966. The sanitary inspector issued a certificate of death indicating "burn" as
the cause of death (Exh. B).

The trial court fittingly deplored the half-hearted manner in which the prosecution (represented by
Fiscal Roque and the private prosecutor, Delfin Agbu) handled the case. It bewailed the prosecution’s
failure to present as witnesses Juanito de la Serna and Ernesto Ogoc, the detention prisoners who saw
the burning of Napola. They had executed a joint affidavit which was one of the bases of the information
for murder. 1

It noted that Rufina Paler, the victim’s widow, who was present in court, was a vital witness who should
have been presented as a witness to prove the victim’s dying declaration or his statements which were
part of the res gestae. 2

In this appeal appellant’s three assignment of error may be condensed into the issue of credibility or the
sufficiency of the prosecution’s evidence to prove his guilt beyond reasonable doubt.

His story is that at around nine o’clock in the evening of July 31, 1966 he was in the municipal jail on
guard duty. He heard a scream for help from Napola. He entered the cell and found Napola’s shirt in
flames. With the assistance of Ernesto Ogoc and Anecio Siton, Ural removed Napola’s shirt. Ural did not
summon a doctor because, according to Napola, the burns were not serious. Besides, he (Ural) was
alone in the municipal building.

Felicisima Escareal, Ogoc’s common-law wife, whom the trial court branded "as a complete liar",
testified that she heard Napola’s scream for help. She saw that Napola’s shirt was burning but she did
not know how it happened to be burned. She said that Ural and Siton removed the shirt of Napola and
put out the fire.

Teofilo Matugas, a policeman, declared that he was relieved as guard by Ural at eight-thirty in the
evening of July 31st. Matugas denied that Alberio was in the municipal building at eight o’clock.

The trial court held that Ural’s denials cannot prevail over the positive testimony of Alberio. It observed
that Ural’s alleged act of removing Napola’s burning shirt was at most an indication that he was
"belatedly alarmed by the consequence of his evil act" but would not mean that he was not the
incendiary.

Appellant Ural (he was thirty-four years old in March, 1969), in assailing the credibility of Alberio,
pointed out that he was not listed as a prosecution witness and that he was convicted of murder.

Those circumstances would not preclude Alberio from being a credible witness. It should be noted that
the accused was a policeman. Ordinarily, a crime should be investigated by the police. In this case, there
was no police investigation. The crime was investigated by a special counsel of the fiscal’s office. That
might explain why it was not immediately discovered that Alberio was an eyewitness of the atrocity
perpetrated by Ural.

The testimonies of Felicisima Escareal, Ogoc’s common-law wife, and Policeman Matugas are
compatible with the prosecution’s theory that Ural burned Napola’s shirt. Ultimately, the factual issue is:
who should be given credence, Alberio or Ural? As already stated, the trial court which had the
advantage of seeing their demeanor and behavior on the witness stand, chose to believe Alberio. This
Court, after a searching scrutiny of the whole record, does not find any justification for disbelieving
Alberio.

This case is covered by article 4 of the Revised Penal code which provides that "criminal liability shall be
incurred by any person committing a felony (delito) although the wrongful act done be different from
that which he intended." The presumption is "that a person intends the ordinary consequences of his
voluntary act" (Sec. 5[c], Rule 131, Rules of Court).

The rationale of the rule in article 4 is found in the doctrine that "el que es causa de la causa es causa del
mal causado" (he who is the cause of the cause is the cause of the evil caused). "Conforme a dicha
doctrina no alteran la relacion de causalidad las condiciones preexistentes (como las condiciones
patologicas del lesionado, la predisposicion del ofendido, la constitucion fisica del herido, etc.); ni las
condiciones concomitantes (la falta de medicos para asistir al herido); ni las condiciones sobrevenidas
(como el ttanos, la pulmon!a, o la gangrena sobrevenidos a consequencia de la herida)" (1 Cuello Calon,
Codigo Penal, 12th Ed., 1968, p. 335-336).

The similar rule in American jurisprudence is that "if the act of the accused was the cause of the cause of
death, no more is required" (40 C.J.S. 854). So, where during a quarrel, the accused struck the victim
with a lighted lamp, which broke and fell to the floor, causing the oil to ignite and set fire to the rug,
and, in the course of the scuffle, which ensued on the floor, the victim’s clothes caught fire, resulting in
burns from which he died, there was a sufficient causal relation between the death and the acts of the
accused to warrant a conviction of homicide (Williams v. U.S., 20 Fed. 2nd 269, 40 C.J.S. 854, note 90).

There is a rule that "an individual who unlawfully inflicts wounds upon another person, which result in
the death of the latter, is guilty of the crime of homicide, and the fact that the injured person did not
receive proper medical attendance does not affect the criminal responsibility" (U.S. v. Escalona, 12 Phil.
54). In the Escalona case, the victim was wounded on the wrist. It would not have caused death had it
been properly treated. The victim died sixty days after the infliction of the wound. It was held that lack
of medical care could not be attributed to the wounded man the person who inflicted the wound was
responsible for the result thereof.

The crime committed by appellant Ural was murder by means of fire (incendio) (Par. 3, Art. 248, Revised
Penal Code; People v. Masin, 64 Phil. 757; U.S. v. Burns, 41 Phil. 418, 432, 440). 3

The trial court correctly held that the accused took advantage of his public position (Par. 1, Art. 14,
Revised Penal Code). He could not have maltreated Napola if he was not a policeman on guard duty.
Because of his position, he had access to the cell where Napola was confined The prisoner was under his
custody. "The policeman, who taking advantage of his public position maltreats a private citizen, merits
no judicial leniency. The methods sanctioned by medieval practice are surely not appropriate for an
enlightened democratic civilization. While the law protects the police officer in the proper discharge of
his duties, it must at the same time just as effectively protect the individual from the abuse of the
police." (U. S. v. Pabalan, 37 Phil. 352).

But the trial court failed to appreciate the mitigating circumstance "that the offender had no intention
to commit so grave a wrong as that committed" (Par. 3, Art. 13, Revised Penal code). It is manifest from
the proven facts that appellant Ural had no intent to kill Napola. His design was only to maltreat him
may be because in his drunken condition he was making a nuisance of himself inside the detention cell.
When Ural realized the fearful consequences of his felonious act, he allowed Napola to secure medical
treatment at the municipal dispensary.

Lack of intent to commit so grave a wrong offsets the generic aggravating, circumstance of abuse of his
official position. The trial court properly imposed the penalty of reclusion perpetua which is the medium
period of the penalty for murder (Arts. 64[4] and 248, Revised Penal Code).
Finding no error in the trial court’s judgment, the same is affirmed with costs against the Appellant.

So ordered.

6. People v. Gonzales, G.R. No. 139542, 21 June 2001

G.R. No. 139542 June 21, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
INOCENCIO GONZALEZ, JR., accused-appellant.

DISSENTING OPINION

GONZAGA-REYES, J.:

Many unfortunate tragedies would not have happened if the improvident use of a firearm did not
exacerbate a simple altercation over traffic. This is one of them.

On a day intended to pay homage to the dead, a pregnant woman was shot to death in the course of her
husband’s altercation with the accused-appellant and his son along the Garden of Remembrance within
the Loyola Memorial Park in Marikina. The trial court found the accused guilty of the complex crime of
murder and two counts of frustrated murder and accordingly sentenced him to death. This case is
before us on automatic review.

The details of what actually transpired in the few seconds immediately preceding the shooting are
controverted by both parties but the events leading to this tragedy are not disputed.

In the afternoon of October 31, 1998 at about 2:30 p.m. both the families of the private complainant
Noel Andres and that of the accused-appellant Inocencio Gonzalez were on their way to the exit of the
Loyola Memorial Park. The appellant was driving a white Isuzu Esteem with his grandson and three
housemaids, while the private complainant was driving a maroon Toyota FX with his pregnant wife
Feliber Andres, his two year old son, Kenneth, his nephew Kevin and his sister-in-law, Francar Valdez. At
the intersection near the Garden of Remembrance, while the accused-appellant Gonzalez was turning
left towards the exit and the complainant Noel Andres was headed straight along the road to the exit
their two vehicles almost collided. Noel Andres was able to timely step on the brakes. The appellant
continued driving along his way while Noel Andres drove behind the appellant’s vehicle for some time
and cut him off when he found the opportunity to do so.1 Noel Andres then got out of his vehicle and
knocked on the appellant’s car window.2 This is as far as their versions of the incident coincide.

The prosecution’s version of the incident is that Noel Andres calmly told the appellant to be careful with
his driving and informed the latter that he, Andres, is with his family and to this Gonzalez allegedly
replied, "Accidents are accidents, what’s your problem." Andres stated that he saw the appellant turning
red in anger so he decided to go back to his vehicle when he was blocked by the appellant’s son who
said, "Anong problema mo sa erpat ko." Andres testified that he felt threatened and so he immediately
boarded his vehicle, sat at the driver’s seat, closed the door, and partially opened the car window just
wide enough to talk back to appellant’s son, Dino. Suddenly, one of his passengers said "Binaril kami".
He turned to his wife Feliber Andres and saw her bloodied and unconscious. He turned around and saw
his son Kenneth and nephew Kevin were also wounded. Andres admitted in court that he and Dino were
shouting at each other so that he did not hear the shot. Andres then got out of his vehicle to warn the
appellant not to flee. He then took the wounded members of his family to the exit where there was an
ambulance standing by. The three were then taken to the Sta. Monica Hospital and were later
transferred to the Quezon City Medical Center.

The defense’s version of the incident is that Andres cut the appellant’s path by positioning his FX
obliquely along the appellant’s lane from the latter’s left side. Andres then got out of his vehicle, stood
beside the appellant’s car window, and repeatedly cursed the appellant, "Putang ina mo, ang tanda-
tanda mo na hindi ka pa marunong magmaneho. Ang bobo-bobo mo."3 The appellant stayed inside his
car and allegedly replied, "Pasensiya ka na hindi kita nakita, nasilaw ako. Aksidente lang." The appellant
Gonzalez and another witness for the defense, Quidic, testified that Noel Andres went back to his
vehicle to move it in such a way that it is straight in front of the appellant’s car. Andres allegedly got out
of his vehicle again and continued shouting and cursing at the appellant.4 Dino, the appellant’s son, who
rode in another vehicle decided to go back when he did not see his father’s car behind him. When Dino
arrived at the scene he confronted Andres and the two had an altercation. Both Dino and the appellant
stated that Andres remained outside his vehicle during the altercation with Dino. When Andres suddenly
reached for something inside his vehicle, Dino froze on the spot where he stood. This prompted the
appellant to get his gun from the glove compartment and feeling that his son was threatened he got out
of his car ready to shoot. When he saw that Andres did not have a weapon he put down his hand
holding the gun. This is when the appellant’s daughter Trisha who was riding in Dino’s car arrived at the
scene, walked past Dino and Andres, and pushed the appellant away. She hugged her father and in the
process held his hand holding the gun. The appellant tried to free his hand and with Trisha’s substantial
body weight pushing against him the appellant lost his balance and the gun accidentally fired. The
accused stated that he did not know he shot somebody until the private complainant’s sister-in-law,
Francar Valdez, got out of the vehicle carrying a bloodied small boy. The defense claims that the
appellant did not try to flee and even told the complainant’s sister-in-law to take the wounded to the
hospital.

On November 4, 1998 an Information for the complex crime of Murder, Double Frustrated Murder and
Attempted Murder was filed against herein accused-appellant:

"That on or about the 31st day of October 1998, in the city of Marikina, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously with intent to kill, attack, assault and employ personal violence by
means of treachery and abuse of superior strength upon the person of Noel Andres y Tomas, by
then and there shooting him with a Glock cal. 9mm pistol but instead hitting one Feliber Andres
y Ordoño, on the left back portion of her head, thereby inflicting upon her serious and mortal
wound which directly caused her death, as well as hitting John Kenneth Andres y Ordoño and
Kevin Valdez y Ordoño physical injuries which ordinarily would have caused their death, thus
performing all the acts of execution which would have produced the crime of murder as a
consequence, but nevertheless did not produce it by reason of some cause or causes,
independent of their will, that is, the timely and able medical assistance rendered to John
Kenneth Andres y Ordoño and Kevin Valdez y Ordoño to their damage and prejudice as well as
to the damage and prejudice of the heirs of Feliber Andres y Ordoño."
On arraignment the accused-appellant pleaded "not guilty" to the crimes charged.

The case records show that Feliber Andres, the wife of Noel Andres did not die instantaneously. She
lived to give birth to a baby girl5 by caesarian section and died the following morning on November 1,
1998. The Autopsy Report6 states:

"FINDINGS: Fairly nourished, fairly developed female cadaver, with post mortem lividity.
Conjunctivae are pale. Lips and nail beds are cyanotic. Surgical incisions were noted at left
tempero-parietal region. Surgical incisions is also noted at the abdominal region secondary to a
caesarian section.

HEAD: (1) gunshot wound, point of entry, left fronto-temporal region, measuring 1 by 0.9 cm, 9
cm from the anterior midline, with a uniform abraided collar measuring 0.2 cm., directed
posteriorwards, slightly downwards, and medialwards, fracturing the frontal, and left temporal
bones, lacerating the left cerebral hemisphere, with a deformed slug fragment embedded and
recovered at the posterior lobe of the left cerebral hemisphere. (2) hematoma, left orbital
region, measuring 4.5 by 2 cm, 4 cm from the anterior midline. There are subdural and
subarachnoidal hemorrages. Stomach contains 1 ½ glassful of partially digested food particles
mostly rice and meaty material.

CONCLUSION: Cause of death is gunshot wound on the head."

Kenneth and Kevin were treated for extraction of metallic fragments on their faces. They were
discharged from the hospital six days later or on November 6, 1998.

On June 25, 1999 the trial court rendered judgement finding that the shooting was attended by the
qualifying circumstance of treachery and held the appellant guilty of the complex crime of murder for
the death of Feliber Andres and for two counts of frustrated murder for the injuries sustained by
Kenneth Andres and Kevin Valdez and sentenced the appellant to the maximum of the imposable
penalty which is death. The trial court held:

"Beforehand, the Court takes note of the judicial admissions on the verbal declarations of the
accused that the court ‘a quo’ has jurisdiction over the case; that he owns the black Gluck 9 mm.
automatic pistol; that the said gun will never fire even if he drops it; that only one bullet was
fired from his gun; and that the victim Feliber Andres is already dead. With this exegesis and the
declarations in open court of the eyewitness of both the prosecution and some of the defense,
there is no real dispute on the antecedent facts showing that the accused fired on Noel Andres
but instead hit and caused the fatal injuries to the victims John Kenneth Andres, Kevin Valdez
and Feliber Andres resulting to the ultimate death of the latter. The court takes further judicial
admissions of the accused made in their memorandum demonstrating the existence of five (5)
sequences of events leading to the death of Feliber Andres and the wounding of John Kenneth
Andres and Kevin Valdez which are as follows: First is when Noel Andres overtook the car driven
of the accused and cut cross his path; Second is when Noel Andres alighted from his vehicle and
confronted Inocencio; Third is when Noel had an argument with Dino Gonzalez, the son of the
accused; Forth is when, Inocencio seeing his son having confrontation with Noel, got his gun to
protect Dino; and Fifth is when Inocencio had a struggle with his daughter. Trisha Gonzalez, who
tried to reach for the gun and as a result of which Inocencio lost his balance and as he was
falling backward to his side, his right arm holding the gun hit the rear window of the Tamaraw
FX van and the gun accidentally went off hitting the victim, who were all then inside the van.

The court likewise take judicial notice on the feature of the automatic pistol used in this case
which is capable of unquestionable demonstration or ought to be known to judges because of
their judicial functions. Practically, the stages before an automatic firearm would be capable of
firing are as follows: 1) the loading of a bullet into the chamber of the gun; 2) the cocking of the
hammer, if uncocked; 3) the releasing of the safety pin; 4) the pressing of the trigger to unleash
the hammer so that the firing pin will hit the cartridge to propel the bullet out to hit the target.
Realistically, it demonstrates that a gun will not fire even if the bullet is loaded in its chamber if
the hammer is uncocked; or even if cocked if the safety pin is engaged; or even if the safety pin
is disengaged if the trigger will not be pressed. However, even if the gun is fired if it is not aimed
and leveled to the target, the purpose of firing it shall not be achieved. Contrarily, once a gun is
drawn against a person, the means methods and forms employed for its execution is already
conceived. And once it is tended directly and specifically to insure its execution, it consequently
produces the conscious and deliberate intention. Finally if all the acts of execution had been
effectively done without risk on the part of the offender arising from any defense coming from
the offended party, treachery results. In brief, there is treachery when the offender commits
any crime against persons, employing means, methods and forms in the execution thereof
which tend directly and specially to insure its execution, without risk to himself arising from any
defense which the offended party might make (People vs. Mesa 276 SCRA 407; People vs. Carlos
Patrolla, Jr. G. R. No. 112445, March 7, 1996). To appreciate treachery two (2) conditions must
be present, to wit: 1) the employment of means of execution that give the person attacked no
opportunity to defend himself or retaliate; and 2) the means of execution were deliberately or
consciously adopted. (People vs. Azugue, 268 SCRA 711; People vs. Peña, G. R. No. 116022, July
1, 1998, p. 1)

In the case at bar and guided with the above-quoted doctrinal cases, logically, the accused is
positive of the crime charged against him. When he alighted with a drawn gun to protect his son
and released all the safety measures of his gun as he fired and missed at Noel who was then
unarmed, but instead hit Kevin Valdez, John Kenneth Andres and Feliber Andres which resulted
to the death of the latter, demonstrate that the accused has executed the two (2) conditions to
generate treachery enough to qualify the crime committed to murder."

XXXX XXXXX XXXX

"WHEREFORE, foregoing premises considered, the accused Inocencio Gonzalez, Jr., y Esquivel is
hereby found guilty beyond reasonable doubt of the complex crime of Murder with Double
Frustrated Murder and Attempted Murder penalized under Art. 248, as amended by Republic
Act No. 7659 in relation to Article 48 of the Revised Penal Code and is sentenced to suffer the
maximum penalty of Death by lethal injection.

The accused is further ordered to pay the following civil liabilities:

1. To the private complainant Noel Andres:

a) the amount of P50,000.00 as indemnity for the death of Feliber Andres;

 b) the amount of P3,363,663.60 as indemnity for the loss of earning capacity of the
deceased Feliber Andres;

c) the amount of P98,384.19 as funeral expenses;

d) the amount of P271,800.56 for the hospitalization expenses incurred for the injuries
sustained by the deceased Feliber Andres and the amount of P23,622.58 representing
the expenses for the untimely delivery of the child Ma. Clarisse Andres;

e) the amount of P51,566.00 representing the hospitalization expenses for the injuries
sustained by the victim John Kenneth Andres;

f) the amount of P150,000.00 as moral damages suffered for the untimely death of his
wife Feliber Andres and for the injuries caused to his son John Kenneth Andres;

g) the amount of P50,000.00 as and by way of attorney’s fees and a fee of P2,000.00 per
appearance; and

h) the costs of the suit.

2. To the private complainant Nicasio Valdez:

a) the amount of P73,824.75 as actual damages for the injuries sustained by the victim
Kevin Valdez; and

b) the amount of P75,000.00 as and by way of moral damages.

SO ORDERED."

In his appeal, Gonzalez submits the following assignments of error:

"1. The trial court committed reversible error when it found that treachery was present.

2. The trial court committed reversible error when it presumed that there was treachery by
taking judicial notice of the feature of the automatic pistol involved in this case.

3. The trial court committed reversible error when it violated the constitutional right of the
accused-appellant to due process when it took judicial notice of the feature of the automatic
pistol involved in this case without notice.

4. The trial court committed reversible error when it found Accused-Appellant guilty beyond
reasonable doubt of the complex crime of Murder with Double Frustrated Murder.

5. The trial court committed reversible error when it failed to appreciate the mitigating
circumstances of passion or obfuscation, lack of intention to commit so grave a wrong,
provocation or threat on the part of the offended party immediately preceded the act,
incomplete defense of relative, and voluntary surrender.
 6. The trial court committed reversible error when it failed to find that the shooting incident was
accidental.

7. The trial court committed reversible error when it gave credence to the testimonies of
prosecution witnesses Elmer Ramos and Moises Castro.

8. The trial court committed reversible error when it disregarded the basic principle that the
accused is presumed innocent and his guilt must be proven beyond reasonable doubt.

9. The trial court committed reversible error when it ordered Accused-Appellant to pay for the
civil liabilities."

The appellant seeks a reversal and prays that judgment be rendered exempting him from criminal and
civil liabilities. Appellant declared that he had no intention to shoot Noel Andres much less his wife nor
the children. He lost his balance when his daughter Trisha approached and pushed him backwards to
stop him from joining Dino and Noel Andres but the appellant tried to free his right hand holding the
gun and it accidentally fired. The single bullet fired hit the last window on the left side of the Tamaraw
FX. The appellant claims that he did not see the passengers inside the vehicle at the time of the
shooting. This is corroborated by the testimony of two witnesses for the prosecution who testified that
the windows of Andres’ vehicle are heavily tinted so that a person outside the vehicle would not be able
to see if there are people inside. It is also argued that had the appellant intended to shoot Noel Andres
he could have simply done so by shooting at him directly. The defense asserts that the evidence for the
prosecution failed to establish the attendance of treachery and without the attendance of the said
qualifying circumstance the crime committed is homicide, not murder.

The appellant also points out that the trial court made the factual finding that the shooting happened in
a matter of seconds and that it was preceded by a heated argument between the parties. Such being the
case, it is argued that the shooting could not have been attended by treachery. There was no time for
the appellant to consciously and deliberately employ the mode of attack against Noel Andres, nor
against any one of the actual victims, to insure its execution and at the same time to eliminate any form
of retaliation from the alleged intended victim. And yet, the trial court, contrary to the evidence on
record, held that the loading of the bullet into the chamber of the gun, the cocking of the hammer, the
release of the safety pin and the pulling of the trigger by the appellant of his automatic pistol constitute
conscious and deliberate effort to employ the gun as a means of committing the crime and resultantly,
qualified its commission by treachery. Such a finding presupposes that the appellant loaded the gun to
shoot Noel Andres only that very moment when his son Dino and Noel Andres were arguing. This
conclusion has no basis on record. The appellant testified that his gun was loaded before he left the
house and two witnesses for prosecution stated in court that a few seconds after Noel Andres and Dino
started shouting at each other, the appellant got out of his car and shot at the last window on the left
side of the complainant’s vehicle. Further, the appellant assigns as error the procedure adopted by the
trial court in taking judicial notice that the gun used by the appellant is an automatic pistol and as such,
it will not fire unless aimed at the intended target. The procedure taken by the trial court is contrary to
Section 3, Rule 129 of the Rules of Court.7 The trial court should have given both parties the opportunity
to present evidence, expert evidence, if necessary, to inform the court on the subject matter. The
appellant argues that the factual finding borne by such erroneous procedure is equally erroneous. The
gun used by the appellant is a semi-automatic and not an automatic pistol which means that the pistol
used has no external safety pin to be released and that the hammer need not be cocked. The pulling of
the trigger, intentional or not, will fire the gun. The use of a semi-automatic pistol does not necessarily
imply treachery.

Appellant also argues that the testimonies of prosecution witnesses Castro and Ramos were improperly
given credence by the trial court. The appellant contends that a reading of their testimonies would show
that their narration of the incident is rather absurd and would show that they did not witness the actual
shooting. Defense witnesses, Gonzalez and his daughter, Trisha, on the other hand, testified that Castro
and Ramos arrived at the scene only after the shooting.

As regards the injuries sustained by Kevin and Kenneth, it is argued that considering that there was no
intent to kill and that they stayed in the hospital only for six days, the crime committed is physical
injuries. It is argued that the trial court erred in awarding damages. The bunch of receipts allegedly
representing the medical expenses incurred for the injuries sustained by the victims was erroneously
admitted in evidence, without first requiring the prosecution to establish the authenticity of the
receipts. The appellant also points out that the award for loss of earning capacity has no basis as the
deceased was unemployed at the time of the incident.

Finally, the appellant assigns as error the trial court’s rejection of the mitigating circumstances pleaded
by the defense which allegedly attended the commission of the crime, i.e., lack of intent to commit so
grave a wrong, passion and obfuscation, incomplete defense of a relative and voluntary surrender. The
appellant asserts that these mitigating circumstances were duly proven during the trial and are
supported by the evidence on record. The private complainant Noel Andres testified that he saw the
appellant getting red in anger after they, Andres and the appellant, had a heated argument immediately
prior to the shooting. These admitted circumstances show that the appellant was not in his proper state
of mind at the time of the shooting. First, he was angered by Andres’ abusive language and later he got
out of his car with a loaded gun to protect his son from a perceived danger. The appellant clams that his
willingness to help the injured and his voluntary surrender to the police should likewise be considered as
mitigating circumstances in the imposition of penalties.

The Solicitor-General agrees with the appellant that the crime was not attended by the qualifying
circumstance of treachery and hence the crime committed by the appellant for the death of Feliber
Andres is homicide, not murder. The appellee takes into consideration that the shooting was preceded
by a heated argument and that the supposed victim was placed on guard that attack was imminent. It
also appears that the shooting was done impulsively. There is no evidence that the appellant
deliberately employed the means of attack to insure execution of the crime and at the same time
eliminate the risk of retaliation from the private complainant. The appellee also agrees with the
appellant that the trial court erred in equating the use of an automatic pistol with treachery. The trial
court made the factual finding that the appellant’s automatic pistol would not fire unless aimed and the
trigger is deliberately pulled and hence treachery attended the shooting. The appellee submits that if we
follow the reasoning of the trial court it would appear that the appellant intended to shoot at the
complainant’s vehicle only as the shot was fired at the last window on the left side of the FX away from
where Andres was allegedly seated. The fact that the gun was drawn and fired does not mean that the
mode of attack was consciously and deliberately employed.

However, with respect to the injuries sustained by Kevin and Kenneth, the appellee disagrees with the
contention that the appellant is liable only for slight physical injuries. The injuries sustained by both
children are head injuries and could have caused their death if not for the immediate medical attention
given them. The number of days spent in the hospital is not determinative of the severity of the wounds.
Their nature and location should instead be considered. The appellant cannot escape liability for
frustrated homicide for the injuries of the two children on the ground that he fired a single shot at the
vehicle of Noel Andres. He is liable for all the consequences of his unlawful act even if the crime
committed is different from that intended.

As regards the pleaded mitigating circumstances, appellee asserts that none can be considered in favor
of the appellant. There is evidence on record that the appellant did not voluntarily surrender to the
police and it appears from the testimonies of witnesses that he entertained the possibility of flight but
his car was stuck in traffic along the exit of the memorial park. His pretense of incomplete defense of a
relative is belied by his own admission that when he saw that Noel Andres did not have a gun he
lowered his hand holding the gun. There was allegedly no threat on the life of his son at the time of the
shooting, no uncontrollable fear nor irresistible force that would mitigate the commission of the
offense.

The Solicitor-General also seeks to uphold the pecuniary awards granted by the trial court. The appellee
alleges that it is not denied by the appellant that Feliber Andres was a 38 year old registered nurse at
the time of the shooting. Although she was then unemployed on account of her pregnancy, she still had
earning capacity and the trial court properly applied the salary of a government nurse under the salary
standardization scheme in the computation of damages for the loss of earning capacity. The receipts
presented in evidence by the prosecution to establish hospitalization and other medical expenses
incurred by the private complainants by reason of the injuries suffered by the victims were duly
authenticated by the prosecution witnesses and there is no dispute that they are exact copies of the
original receipts presented in court. The objections raised by the appellant in this regard were duly met
by the evidence presented by the private complainants.

In sum, the appellee asserts that considering that the appellant fired a single shot and in the process
committed four offenses the appellant should be held liable for the complex crime of homicide for the
death of Feliber Andres, double frustrated homicide against Kevin and Kenneth and attempted homicide
against Noel Andres. Under the rules on complex crimes the penalty for the gravest offense,
i.e., reclusion temporal for homicide, should be imposed in its maximum period.

The appeal has merit.

Treachery under par.16 of Article 14 of the Revised Penal Code is defined as the deliberate employment
of means, methods or forms in the execution of a crime against persons which tend directly and
specially to insure its execution, without risk to the offender arising from the defense which the
intended victim might raise. For treachery to be appreciated two elements must concur: 1) the
employment of means of execution that would insure the safety of the accused from retaliatory acts of
the intended victim and leaving the latter without an opportunity to defend himself and 2) the means
employed were deliberately or consciously adopted by the offender.8 The suddenness of the attack, the
infliction of the wound from behind the victim, the vulnerable position of the victim at the time the
attack was made or the fact that the victim was unarmed do not by themselves render the attack as
treacherous.9 This is of particular significance in a case of an instantaneous attack made by the accused
whereby he gained an advantageous position over the victim when the latter accidentally fell and was
rendered defenseless.10 The means employed for the commission of the crime or the mode of attack
must be shown to have been consciously or deliberately adopted by the accused to insure the
consummation of the crime and at the same time eliminate or reduce the risk of retaliation from the
intended victim.11 Accordingly, it has been consistently held by this court that chance encounters,
impulse killing or crimes committed at the spur of the moment or that were preceded by heated
altercations are generally not attended by treachery for lack of opportunity of the accused to
deliberately employ a treacherous mode of attack.12 Thus, the sudden attack made by the accused due
to his infuriation by reason of the victim’s provocation was held to be without treachery. Sudden attacks
made by the accused preceded by curses and insults by the victim or acts taunting the accused to
retaliate or the rebellious or aggressive behavior of the victim were held to be without treachery as the
victim was sufficiently forewarned of reprisal.13 For the rules on treachery to apply the sudden attack
must have been preconceived by the accused, unexpected by the victim and without provocation on the
part of the latter.14

This Court has also had occasion to state that whether or not the attack succeeds against its intended
victim or injures another or whether the crime committed is graver than that intended is immaterial, as
long as it is shown that the attack is attended by treachery, the said qualifying circumstance may still be
considered by the court.15 Thus, the determining factor on whether or not the commission of a crime is
attended by treachery is not the resulting crime committed but the mode of attack employed in its
execution.16

Treachery is never presumed. It is required that the manner of attack must be shown to have been
attended by treachery as conclusively as the crime itself.17

We affirm the recommendation of the Solicitor-General that the shooting was not attended by
treachery and accordingly the crime committed for the death of Feliber Andres is homicide and not
murder.

The encounter between Noel Andres and the appellant was a chance encounter. They were total
strangers before their vehicles almost collided at an intersection inside the memorial park.
Unfortunately, heated exchange of remarks that followed the near collision was fanned by a short
temper, which in the case of the appellant, was augmented by the improvident use of a firearm.

From a reading of the transcript of the testimonies of the witnesses, it would appear that Noel Andres,
who had his pregnant wife and child with him, among others, on board the Tamaraw FX provoked the
altercation. After the near collision of his vehicle with that of the appellant, he tailed behind the latter’s
car towards the exit until he had the chance to cut him off to scold him for his failure to observe traffic
rules.18 Andres stated in court that he calmly told the appellant to be careful with his driving and denied
that he was angry when he alighted from his vehicle to confront the appellant.19 His statement is belied
by the witnesses, two prosecution witnesses included, who uniformly testified that Andres quarreled
with or shouted and cursed at the appellant for the latter’s recklessness at the intersection.20 The
appellant narrated in court that Andres repeatedly shouted at him, "Putang ina mo, ang tanda-tanda mo
na gago ka pa".21 Andres’ hostile behavior towards the appellant is evident from his statement in court
that he noticed the appellant turning red in anger.22 It is highly improbable for Gonzalez to have turned
red in anger had Andres been polite, as he claims he was, in scolding Gonzalez. Andres could have simply
communicated to the appellant his disgust for the latter’s bad driving when he overtook the appellant’s
car near the scene of the shooting but instead he chose to block the appellant’s path, insult and virtually
provoke the appellant to retaliate.

Andres stated in court that when he noticed Gonzalez’ infuriation he immediately walked towards his
vehicle, because according to him the altercation was over. On his way to his FX he met another man,
whom he later found out to be the appellant’s son, Dino. It appears that the altercation was far from
over because again Andres had a shouting match this time with Dino.23 In a matter of seconds, the
appellant alighted from his car and fired a single shot at the last window on the left side of Andres’
vehicle at an angle away from Noel Andres. The single bullet fired hit Feliber Andres on the forehead
near the temporal region above the left eye and the two children with metallic fragments of the bullet
on their faces, one at the cheek and the other below his left eye.

The prosecution did not present evidence as to the exact seating arrangement of the victims inside the
vehicle; suffice it to say, that an examination of the pictures of the vehicle24 one of which shows a mass
of blood stains on the left side (towards the driver’s seat) of the white seat cover below the head rest25,
would show that the deceased Feliber must have been seated at the front passenger’s seat and the
children at the middle row behind the driver’s seat.26 Another picture shows a bullet hole on the last
window on the left side of the vehicle27 and another shows that the front windshield appears
undamaged.28 A ballistics expert appeared in court for the prosecution and testified that the bullet fired
at the FX came from the appellant’s gun, which fact was admitted by the defense. The prosecution did
not inquire from the ballistics expert regarding the trajectory of the bullet or the approximate distance
of the appellant from the FX when he fired his gun to establish whether or not the appellant aimed for
Noel or Feliber or simply fired indiscriminately at the latter’s vehicle.29

At first blush it would seem that the shooting of Feliber Andres was attended by treachery as she was
inside the FX witnessing her husband’s altercation, first, with the appellant then with the appellant’s
son, totally defenseless from the shot that came suddenly from her left side. Public outrage over the
death of Feliber was heightened by the fact that she was then pregnant with her second child and her
death left a new born baby girl and a two year old boy motherless.

However, a meticulous review of the evidence prevents a conclusive finding of treachery and any doubt
must be resolved, like the fact of the commission of an offense, in favor of the accused. The pictures
indicate that Gonzalez fired at the FX at an angle away from Noel Andres and that Gonzalez was not
aiming at anybody in particular. It is not disputed that the appellant’s car was directly behind the
complainant’s FX and that Gonzalez who was then seated at the driver’s seat alighted from his car, took
a few steps then fired at the left side of the FX. Whether Noel Andres was seated at the driver’s seat
inside his vehicle when Gonzalez fired at the FX, as the prosecution asserts, or was standing by the door
of the driver’s seat outside his vehicle, as the defense submits, it is clear that the shot was fired away
from Noel Andres. The bullet hit Feliber near her temple above the left eye indicating that she was
facing left towards her husband when the shot was fired.30 The direct hit on Feliber’s head shows that
the angle of the shot was indeed away from Noel Andres. Even the eyewitness for the prosecution
testified that had the appellant intended to kill Noel Andres he could have shot directly at him,
considering that Noel Andres was just a few steps away from him31 and that Noel Andres was visible
from the outside because his window was partially open.32 The pictures show that the bullet hole was on
the third window on the left side of the Tamaraw FX33 belying any attempt to shoot Noel Andres. Two
prosecution witnesses Ramos and Castro unequivocally declared that "nothing or no one" prevented
Gonzalez from shooting directly at Noel Andres and that Gonzalez could have simply done so if he
wanted to. But after alighting from his car, Gonzalez took a few steps and shot at the left side window of
the FX.34

The fact that the appellant fired his gun from behind the victim does not by itself amount to treachery.
There is no evidence on record that the appellant deliberately positioned himself behind the victim to
gain advantage over him when he fired the shot. On the contrary, the evidence before us reveals that
the position of the appellant’s car was not of his own doing but it became so when Noel Andres
overtook his car and cut off his path.

We note further, that the appellant did not act belligerently towards Noel Andres even after the latter
cut off the appellant’s path. Andres stated in court that the appellant did not alight from his car nor
opened his window until he, Andres, tapped on it.35 For his part Gonzalez categorically stated in court
that he did not point his gun nor threatened Andres during their short spat.36 Gonzalez, although he had
his gun in his car, did not react to Andres’ cursing until the latter was having an altercation with the
appellant’s son, Dino. Gonzalez claimed that he perceived that his son was in imminent
danger.37 Whether he overreacted or he shot at Andres’ vehicle out of rage over Andres’ aggressive
behavior, one thing appears clear to us, that the shooting was not done in cold blood. It is undisputed
that the windows of the FX are heavily or darkly tinted so that a person outside would not see if
anybody was inside.38 The pictures of the FX39 on record confirm the testimonies of both prosecution
and defense witnesses that the other passengers of the FX were not visible from the outside. Gonzalez
admitted in court that Noel Andres mentioned that he has passengers with him while he was shouting
and cursing at Gonzalez but there is no indication that Gonzalez had any opportunity to see the
passengers when he fired the shot. The totality of the evidence on record fails to support a conclusion
that Gonzalez deliberately employed the mode of attack to gain undue advantage over the intended nor
the actual victim. Without any decisive evidence to the contrary, treachery cannot be considered; thus
the crime committed is homicide.40

The trial court’s finding that the loading of the gun, the cocking of the hammer and finally the pulling of
the trigger constitute a deliberate effort on the part of appellant to use the gun as a means of a
treacherous attack is patently erroneous. A single and continuous attack cannot be divided into stages
to make it appear that treachery was involved.41 The entire incident happened in a matter of minutes, as
testified to by witnesses, and as noted by the trial court.42 It was error to our mind for the trial court to
divide the assault in stages to arrive at the conclusion that the mode of attack was consciously employed
by the appellant. Contrary to the finding of the trial court that the appellant prepared the gun before
getting out of his car, the appellant testified that he loaded his gun before he left the house and that it
was ready to fire when he alighted his car. There was no time for him to reflect on the mode of attack
since he just picked up his gun and alighted from his car and shot at the FX a few seconds after Dino and
Noel Andres started shouting at each other.43 We note further that the trial court pointed out that from
the fact that the appellant prepared his gun to shoot, this was an indication of the deliberate
employment of the gun as a means to kill; i.e. that the use of an automatic pistol shows that the
shooting was attended by treachery.

We do not agree that the weapon used, by itself, is determinative of treachery, unless it is shown, and it
is not herein shown, that the appellant deliberately used the gun to insure the commission of the crime
and to render the unarmed victim defenseless. As discussed above, the encounter between the
appellant and the Andresses was a chance encounter and the appellant’s gun was in the glove
compartment of his car even before he left his house. The shooting was clearly a spur of the moment or
impulsive decision made by the appellant preceded by a heated altercation at the instance of the private
complainant. Jurisprudence teaches us that under the circumstances, treachery is not obtaining. In the
case of People vs. Valles,44 the accused, a security guard, fired his Armalite and mortally wounded the
victim when the latter approached the accused four times insisting on entering the workplace wearing
improper uniform, then cursed and insulted and challenged the accused to a fight. We held that the
shooting was not attended by treachery as the shooting was preceded by a heated altercation at the
instance of the victim. It is to be noted that the kind of weapon used against an unarmed victim was not
taken into consideration in determining the attendance of treachery; it is the mode of attack employed
by the accused under the particular circumstances of a case that determines its attendance in the
commission of a crime. We find that the prosecution has not discharged its burden to show that the
shooting was attended by treachery and we are convinced that the crime committed for the death of
Feliber Andres is homicide.

As regards the injuries sustained by the two children we find that the crime committed are two counts
of slight physical injuries. The intent to kill determines whether the crime committed is physical injuries
or homicide and such intent is made manifest by the acts of the accused which are undoubtedly
intended to kill the victim.45 In a case wherein the accused did not know that a person was hiding behind
a table who was hit by a stray bullet causing superficial injuries requiring treatment for three days, the
crime committed is slight physical injuries.46 In case of doubt as to the homicidal intent of the accused,
he should be convicted of the lesser offense of physical injuries.47 We have earlier pointed out that the
intent to kill is absent in this case. It was also found that one small metallic fragment was extracted from
Kenneth below his left eye while another fragment was extracted from Kevin "immediately below the
level of his skin before the cheek bone".48 An examination of the testimonies of the attending
physicians, showed that the wounds sustained by the two children from the metallic fragments are not
in themselves fatal but may cause death if left untreated. One of the attending physician testified in
court that the fragments themselves "will not cause complication, it is the entry of the fragment" or the
open wound that is susceptible to infection.49 Two small fragments were no longer extracted from the
face of Kevin Valdez, as the doctor deemed it to be without danger of complication.50 We note that the
various sizes of the metallic fragments were not established, at least to give an indication of the severity
of the wounds sustained. Both children were discharged after six days of treatment and there is no
showing that they required subsequent treatment or that they were immobilized for a greater number
of days by reason of the injuries sustained. Considering the nature and location of their injuries and the
number of days required for their treatment, we find that the crime committed for the injuries
sustained by the children are two counts of slight physical injuries under Art. 266 of the Revised Penal
Code which imposes a penalty of arresto menor or imprisonment for 1 to 30 days for injuries sustained
that has incapacitated the victim for one to nine days or required medical attendance for the same
period. For evident lack of criminal intent to kill the complainant, Noel Andres, as above stated, the
information for attempted homicide must fail.

The mitigating circumstances of voluntary surrender, passion and obfuscation, incomplete defense of a
relative and lack of intent to commit so grave a wrong, pleaded by the defense, were not convincingly
proved and none can be considered in the imposition of penalties. The testimony of prosecution witness
contradicts the appellant’s pretense of voluntary surrender. Witness Ramos testified that the appellant
drove away towards the gate of the memorial park while he was questioning him after the shooting and
had not Noel Andres and onlookers blocked his path the appellant could have fled the scene of the
crime.51

The mitigating circumstance of passion and obfuscation is also not obtaining. For this mitigating
circumstance to be considered, it must be shown that (1) an unlawful act sufficient to produce passion
and obfuscation was committed by the intended victim; (2) that the crime was committed within a
reasonable length of time from the commission of the unlawful act that produced the obfuscation in the
accused’s mind; and that (3) "the passion and obfuscation arose from lawful sentiments and not from a
spirit of lawlessness or revenge".52 Noel Andres’ act of shouting at the appellant’s son, who was then a
nurse and of legal age, is not sufficient to produce passion and obfuscation as it is claimed by the
accused. Besides, the appellant’s son, Dino was shouting back at Noel Andres. It was not a case wherein
the appellant’s son appeared helpless and oppressed that the appellant lost his reason and shot at the
FX of Noel Andres. The same holds true for the appellant’s claim of provocation on the part of Noel
Andres. Provocation must be sufficient to excite a person to commit the wrong committed and that the
provocation must be commensurate to the crime committed. The sufficiency of provocation varies
according to the circumstances of the case.53 The aggressive behavior of Noel Andres towards the
appellant and his son may be demeaning or humiliating but it is not sufficient provocation to shoot at
the complainant’s vehicle.

The plea for the appreciation of the mitigating circumstance of incomplete defense of a relative is also
unmeritorious since the act of Andres in cursing and shouting at the appellant and his son do not
amount to an unlawful aggression against them, Dino Gonzalez. Finally, the plea for the appreciation of
the mitigating circumstance of lack of intent to commit so grave a wrong is likewise devoid of merit. This
mitigating circumstance is obtaining when there is a notable disparity between the means employed by
the accused to commit a wrong and the resulting crime committed. The intention of the accused at the
time of the commission of the crime is manifested from the weapon used, the mode of attack employed
and the injury sustained by the victim.54 The appellant’s use of a gun, although not deliberately sought
nor employed in the shooting, should have reasonably placed the appellant on guard of the possible
consequences of his act. The use of a gun is sufficient to produce the resulting crimes committed.

For the death of Feliber Andres, and in the absence of any mitigating circumstance, the appellant is
hereby sentenced to an indeterminate sentence of 8 years and 1 day of prision mayor, in its medium
period, as minimum to 14 years 8 months and 1 day of reclusion temporal in its medium period, as
maximum. For each count of the slight physical injuries committed against Kenneth Andres and Kevin
Valdez, the appellant is hereby sentenced to 20 days of arresto menor in its medium period.

The rules on the imposition of penalties for complex crimes under Art. 48 of the Revised Penal Code are
not applicable in this case. Art. 48 applies if a single act constitutes two or more grave and less grave
felonies or when an offense is a necessary means of committing another; in such a case, the penalty for
the most serious offense shall be imposed in its maximum period. Art. 9 of the Revised Penal Code in
relation to Art. 25 defines grave felonies as those to which the law attaches the capital punishment or
afflictive penalties from reclusion perpetua to prision mayor; less grave felonies are those to which the
law attaches a penalty which in its maximum period falls under correctional penalties; and light felonies
are those punishable by arresto menor or fine not exceeding two hundred pesos. Considering that the
offenses committed by the act of the appellant of firing a single shot are one count of homicide, a grave
felony, and two counts of slight physical injuries, a light felony, the rules on the imposition of penalties
for complex crimes, which requires two or more grave and/or less grave felonies, will not apply.

The pecuniary award granted by the trial court for actual damages was duly established by the
testimonies of the prosecution witnesses as supported by the original receipts for hospitalization and
other medical expenses presented in evidence by the prosecution. The award for loss of earning
capacity is likewise sustained for the reason that while Feliber Andres was pregnant and was
unemployed at the time of death, it is not disputed that she was a registered nurse and had earning
capacity. Noel Andres also testified that he and his wife had plans to go back to Saudi Arabia to work
after Feliber had given birth to their second baby. While there is no evidence as to Feliber’s actual
income at the time of her death, in view of her temporary separation from work because of her
pregnancy, we do not consider it reversible error for the trial court to peg her earning capacity to that of
the salary of a government nurse under the salary standardization law, as a fair estimate or reasonable
assessment of her earning capacity at the time of her death. It would be grossly inequitous to deny her
spouse and her minor children damages for the support that they would have received, considering
clear evidence on record that she did have earning capacity at the time of her death.

The awards for moral damages for the death of Feliber Andres and for the injuries sustained by the two
children, which under the circumstances are reasonable, are likewise sustained.

WHEREFORE, the decision of the trial court is hereby MODIFIED. The appellant is hereby found guilty of
homicide for the death of Feliber Andres and is sentenced to an indeterminate sentence of 8 years and 1
day of prision mayor in its medium period, as minimum, to 14 years 8 months and 1 day of reclusion
temporal in its medium period, as maximum. For each count of the slight physical injuries committed
against Kenneth Andres and Kevin Valdez, the appellant is hereby sentenced to 20 days of arresto
menor.

The pecuniary awards granted by the trial court are hereby sustained.

SO ORDERED.

7. People v. Pagal, G.R. No. L-32040, 25 October 1977

G.R. No. L-32040 October 25, 1977

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PEDRO PAGAL y MARCELINO and JOSE TORCELINO y TORAZO, defendants-appellants.

Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and Solicitor Leonardo L.
Cruz for appellee.

Ciriaco Lopez, Jr. for appellants.

CONCEPCION, JR. J.:têñ.£îhqwâ£

In Criminal Case No. CCC-VI-5 (70) of the Circuit Criminal Court of Manila, the accused, Pedro Pagal y
Marcelino and Jose Torcelino y Torazo were charged with the crime of robbery with homicide,
committed as follows: ñé+.£ªwph!1

That on or about December 26, 1969, in the City of Manila, Philippines, the said accused,
conspiring and confederating together and mutually helping each other, did then and
there wilfully, unlawfully and feloniously, with intent to gain, and by means of violence,
take away from the person of one Gau Guan, cash amounting Pl,281.00. Philippine
currency, to the damage and prejudice of the said Gau Guan in the said sum of
Pl,281.00; that on the occasion of the said robbery and for the purpose of enabling them
to take, steal and carry away the said amount of P1,281.00, the herein accused, in
 pursuance of their conspiracy, did then and there wilfully, unlawfully and feloniously,
with intent to kill and taking advantage of their superior strength, treacherously attack,
assault and use personal violence upon the said Gau Guan, by then and there stabbing
him with an icepick and clubbing him with an iron pipe on different parts of his body,
thereby inflicting upon him mortal wounds which were the direct and immediate cause
of his death thereafter.

Contrary to law, and with the generic aggravating circumstances of (1) nightime
purposely sought to better accomplish their criminal design; (2) evident premeditation;
(3) in disregard of the respect due the offended party; and (4) with abuse of confidence,
the accused being then employees of the offended party. 1

When the case was called for affaigmnent, counsel de oficio for the accused infomred said court of their
intention to enter a plea of guilty provided that they be allowed afterwards to prove the mitigating
circumstances of sufficient provocation or threat on the part of the offended party immediately
preceding the act, and that of having acted upon an impulse so powerful as to produce passion and
obfuscation. 2 Therafter, the trial judge propounded to them the questions and the accused gave the
answers quoted hereunder: ñé+.£ªwph!1

Court:

Your lawyer here has manifested your desire to enter a plea of guilty to
the offense charged, robbery with homicide. Do you know that by
agreeing to that manifestation of your lawyer, you will be admitting the
commission of the crime charged?

Accused:

We agree, your honor, to what our lawyer said, but we would like to
explain something.

Court:

Your lawyer here has stated that you will still prove mitigating
circumstances. Is that what you like to explain?

Accused:

Yes, your honor.

Court:

If that is the case, I will give you a chance.

Accused:

Yes, your honor.

 Court:

Do you know that by agreeing to that manifestation, you will be

admitting the commission of the crime charged, robbery wit,. homicide?

Accused:

Yes, your honor.

Court:

And for which this court might sentence you to death or life
imprisonment?

Accused:

Yes, your honor.

Court:

And notwithstanding what is explained to you, you still insist in your

desire to enter a plea of guilty to the offense charged?

Accused:

Yes, your honor.

Court:

Q Notwithstanding again the warning of the court that the maximum

penalty impossable is death?

A Yes, your honor.

Court:

Arraign the accused.

(At this stage, both accused were arraigned and both pleaded guilty to the offense
charged). 3

Thereafter, the accused presented evidence to prove the mitigating circumstances of sufficient
provocation on the part of the victim immediately preceding the act and acting upon an impulse so
powerful as to produce passion and obfuscation. After the accused had rested their case, the
prosecution presented the statements 4 of the accused, and other pertinent documents regarding the
investigation of the case. 5
After the trial, the court a quo rendered its decision, the dispositive portion of which reads as
follows: ñé+.£ªwph!1

WHEREFORE, both accused are hereby found guilty beyond reasaonable doubt as
principals of the crime of robbery with homicide and there being proven the aggravating
circumstances of nighttime, evident premeditation and disregard of respect due the
offended party offset only by the mitigating circumstance of their plea of guilty,
sentences each one of them to DEATH, jointly and severally indemnify the heirs of the
deceased Gau Guan; P15,000.00 for moral damages; P15,000.00 for exemplary
damages, all amounts to bear interest until they shall have been fully paid; the sum of
P1,281.00 represnting the amount taken from the victim; and to pay proportionately
the costs. 6

The case is now before this Court for mandatory review on account of the death penalty imposed upon
the accused.

The appellant Pedro Pagal contends that the trial court erred in convicting him of the crime of robbery
with homicide instead of declaring him liable only for his individual acts, claiming that the record is
bereft of any proof or evidence that he and his co-appellant Jose Torcelino conspired to commit the
crime of robbery with homicide.

The appellant's position is not well-taken. His denial of conspiracy with his co-appellant Jose Torcelino
cannot be given credence in view of the clear and convincing confession of his guilt in his
statement 7 signed by him before the police investigators several hours after the commission of the
crime. Besides, when he pleaded guilty to the charge, he is deemed to have admitted all the material
facts alleged in the information. 8 By his plea, the appellant admitted not only the commission of the
crime but also the circumstances surrounding its commission, including the allegations of conspiracy. A
plea of guilty when formally entered on arraignment, is sufficient to sustain a conviction even for a
capital offense without the introduction of further evidence, 9 the requisite proofs having been supplied
by the accused himself. 10 We find, therefore, that the trial court did not commit any error in convicting
the appellant Pedro pagal of the crime of robbery with homicide.

The appellants further assail the trial court in not appreciating in their favor the mitigating
circumstances of sufficient provocation, and passion or obfuscation.

Again, the appeflants'contention is devoid of merit. Firstly, since the alleged provocation which caused
the obfuscation of the appellants arose from the same incident, that is, the alleged maltreatment and/or
ill-treatment of the appellants by the deceased, these two mitigating circumstances cannot be
considered as two distinct and separate circumstances but should be treated as one. 11 Secondly, the
circumstance of passion and obfuscation cannot be mitigating in a crime which — as in the case at bar
— is planned and calmly meditated before its execution. Thus, in People vs. Daos, 12 a case of robbery
with homicide, this Court rejected the claim of the appellants therein that passion and obfuscation
should have been estimated in their favor, because the death of the victim therein took place on the
occasion of a robbery, which, before its execut,.on, had been planned and calmly meditated by the
appellants. Thirdly, the maltreatment that appellants claim the victim to have committed against them
occurred much earlier than the date of the commission of the crime. Provocation in order to be a
mitigating circumstance must be sufficient and immediately proceeding the act. We hold that the trial
court did not commit any error in not appreciating the said mitigating circumstances in favor of the
appellants.

Finally, the appellants claim that the trial court erred in considering the aggravating circumstances of
nighttime, evident premeditation, and disregard of the respect due the offended party on account of his
rank and age.

Although the trial court correctly considered the aggravating circumstance of nocturnity because the
same was purposely and deliberately sought by the a,)pellants to facilitate the commission of the crime,
nevertheless, We disagree with its conclusion that evident premeditation and disregard of the respect
due the offended party were present in the commission of the crime.

Evident premeditation is inherent in the crime of robbery. 13 However, in the crime of robbery with
homicide, if there is evident premeditation to kill besides stealing, it is considered as an aggravating
circumstance. 14 In other words, evident premeditation will only be aggravating in a complex crime of
robbery with homicide if it is proved that the plan is not only to rob, but also to kill. 15 In the case at bar,
a perusal of the written statements 16 of the appellants before the police investigators show that their
original plan was only to rob, and that, they killed the deceased only when the latter refused to open the
"kaha de yero", and fought with them. The trial court, therefore, erred in taking into consideration the
aggravating circumstance of evident premeditation.

The aggravating circumstance that the crime was committed with insult or in disregard of the respect
due the offended party on account of his rank, age or sex may be taken into account only in crimes
against persons or honor, when in the commission of the crime there is some insult or disrespect shown
to rank, age, or sex. 17 lt is not proper to consider this aggravating circumstance in crimes against
property. 18 Robbery with homicide is primarily a crime against property and not against persons.
Homicide is a mere incident of the robbery, the latter being the main purpose and object of the
criminal. 19 The trial court erred in taking into account this aggravating circumstance.

It results that in the commission of the crime, there is only generic aggravating circumstance, i.e.,
nighttime or nocturnity.

Robbery with homicide is punished by reclusion perpetua to death. 20 Since the aggravating
circumstance of nighttime is offset by the mitigating circumstance of plea of guilty, the lesser penalty,
which is reclusion perpetua, should be imposed upon the appellants. 21

ACCORDINGLY, the judgment of the trial court is modified and the appellnts Pedro Pagal y Marcelino
and Jose Torcefino y Torazo are hereby sentenced to suffer each the penalty of reclusion perpetua. In all
other respects, the judgment of the trial court is affirmed. With costs against the appellants.

SO ORDERED.

8. Urbano v. People, G.R. No. 182750, 20 January 2009

G.R. No. 182750 January 20, 2009

RODEL URBANO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VELASCO, JR., J.:

This petition for review under Rule 45 seeks to reverse and set aside the Decision1 dated January 25,
2008 of the Court of Appeals (CA) in CA-G.R. CR No. 25371 which affirmed with modification the April
30, 2001 Decision2 of the Regional Trial Court (RTC), Branch 39 in Lingayen, Pangasinan in Criminal Case
No. L-5028. The RTC found petitioner Rodel Urbano guilty beyond reasonable doubt of the crime of
Homicide.

The Facts

In an Information filed before the RTC, petitioner was charged with Homicide, committed as follows:

That on or about the 28th of September 1993 in the evening, in Barangay Poblacion, Municipality of
Lingayen, Province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with intent to kill, did then and there willfully, unlawfully and feloniously attack,
assault, hit and maul Brigido Tomelden, inflicting upon him mortal injuries and as borne out from the
autopsy report the following findings:

EXTERNAL FINDINGS:

A- Softened portion of the scalp over (R) occipito-temporal area about 5 inches above and
posterior to the (R) ear.

B- Clotted blood over the (R) occipito-temporal area.

C- No lacerations noted.

INTERNAL FINDINGS:

A- On opening the skull there is oozing of dark colored blood from the brain substances.

B- More darked blood vessels at the (L) side of the brain.

CAUSE OF DEATH:

Cardio-respiratory arrest secondary to cerebral concussion with resultant cerebral hemorrhage

due to mauling incident.

Which directly caused his death, to the damage and prejudice of the heirs of the said Brigido Tomelden.

CONTRARY to Article 249 of the Revised Penal Code.

Petitioner, when arraigned, pleaded not guilty to the charge. Following the parties’ waiver of pre-trial,
trial on the merits then ensued.

As summarized in the decision subject of review, the prosecution’s evidence established the following
facts:

On September 28, 1993, at around 8:00 p.m., the victim Brigido Tomelden and petitioner were at the
compound of the Lingayen Water District (LIWAD) in Lingayen, Pangasinan, having just arrived from a
picnic in the nearby town of Bugallon, Pangasinan, where, with some other co-workers, they drunk beer
in a restaurant. While inside the compound, the two had a heated altercation in the course of which
Tomelden hurled insulting remarks at petitioner. Reacting, petitioner asked why Tomelden, when drunk,
has the penchant of insulting petitioner.

The exchange of words led to an exchange of blows. Cooler heads succeeded in breaking up the fight,
but only for a brief moment as the protagonists refused to be pacified and continued throwing fist blows
at each other. Then petitioner delivered a "lucky punch," as described by eyewitness Orje Salazar, on
Tomelden’s face, which made Tomelden topple down. Tomelden was on the verge of hitting his head on
the ground had their companions not caught him and prevented the fall. The blow, however, caused
Tomelden’s nose to bleed and rendered him unconscious.

Petitioner and his other co-workers brought Tomelden to the office of the LIWAD general manager
where he spent the night. He remained in the compound the following day, September 29, 1993. Upon
arriving home at around 6:00 p.m. of that day, Tomelden informed his wife, Rosario, of the fight the
previous night and of his having been rendered unconscious. He complained of pain in his nape, head,
and ear which impelled Rosario to immediately bring him to the Lingayen Community Hospital where Dr.
Daisy Arellano examined him and treated his lacerated left index finger, contusions, and hematoma at
the right cerebrum.

On October 2 and 7, 1993, Tomelden went back to the hospital complaining of dizziness, headache, and
other pains. The attending doctors observed the patient to be in a state of drowsiness and frequent
vomiting. On October 8, 1993, Rosario brought Tomelden to the Sison Memorial Provincial Hospital in
Dagupan City, where the attending physician, Dr. Ramon Ramos, diagnosed Tomelden suffering from
"brain injury, secondary to mauling to consider cerebral hemorrhage."3

Tomelden was confined in the provincial hospital until 3:00 p.m. of October 10, 1993, and, due to
financial constraints, was thereafter discharged despite signs negating physical condition improvement.
Upon reaching their house, however, Tomelden again complained of extreme head pain, prompting his
wife to bring him back to the Lingayen Community Hospital where Dr. Arellano again attended to him.
This time, things turned for the worst, the doctor noting that Tomelden appeared to be semi-conscious,
sleepy, uncooperative, and not responding to any stimulant. Tomelden died at 9:00 p.m. of that day
due, per Dr. Arellano, to "cardio-respiratory arrest secondary to cerebral concussion with resultant
cerebral hemorrhage due to mauling incident."

The defense presented petitioner who denied having any intention to kill, asserting that hypertension,
for which Tomelden was receiving treatment, was the cause of the latter’s death.

The Ruling of the RTC

On April 30, 2001, the RTC rendered judgment finding petitioner guilty as charged. The fallo of the RTC’s
decision reads:

WHEREFORE, the prosecution having established beyond reasonable doubt the guilt of the accused of
the crime of HOMICIDE as defined and penalized under Art. 249 of the Revised Penal Code, this Court in
the absence of any modifying circumstances, hereby sentences said accused to suffer the indeterminate
prison term of eight (8) years and one (1) day of Prision Mayor as minimum to seventeen (17) years and
four (4) months of Reclusion Temporal as maximum and to indemnify the legal heirs of the victim in the
amount of PHP50,000.00, plus cost of the suit.

The period of preventive imprisonment suffered by the accused shall be credited in full in the service of
his sentence in accordance with Art. 29 of the Revised Penal Code.4

Therefrom, petitioner appealed to the CA, his recourse docketed as CA-G.R. CR No. 25371.

The Ruling of the CA

On January 25, 2008, the CA rendered a decision, affirming the conviction of petitioner, but awarding
moral damages to the heirs of Tomelden, disposing as follows:

WHEREFORE, in the light of the foregoing, the appeal of the accused-appellant is DISMISSED. The
decision appealed from is AFFIRMED with MODIFICATION that an award of P50,000.00 moral damages is
GRANTED.

Remand of the records should immediately follow finality for the consequent execution of the decision.5

The appellate court held that the commission by petitioner of the crime of homicide, as defined and
penalized under Article 2496 of the Revised Penal Code (RPC), had been proved beyond moral certainty
of doubt, pointing to the lucky punch as the proximate cause of Tomelden’s hospitalization and
ultimately his death. And like the RTC, the CA found no qualifying circumstance to increase or lower the
penalty.

Following the denial of petitioner’s motion for reconsideration, per the CA Resolution7 of April 24, 2008,
he interposed this petition.

The Issues

On essentially the same issues raised before the CA, petitioner now urges the Court to set aside the
appealed decision, or at least modify it, maintaining that the appellate court:

I. x x x erred in affirming the decision of the [RTC] finding [him] guilty beyond reasonable doubt
of the crime charged.

II. x x x erred in not appreciating the mitigating circumstances of sufficient provocation on the
part of the victim and lack of intent to commit so grave a wrong in favor of the petitioner.8

The Court’s Ruling

The petition is partly meritorious.

Homicide Duly Proved

It is petitioner’s threshold posture that the fistic injury Tomelden sustained was not "the main
underlying cause of his death."9 In this regard, petitioner draws attention to the fact that the fist fight in
question happened on September 28, 1993. Tomelden, however, died only on October 10, 1993 or 12
days thereafter and that, during the intervening days, particularly September 29, 1993, the deceased
regularly reported for work. Moreover, petitioner avers that days prior to the fateful incident of
September 28, 1993, Tomelden failed to come to work as he was suffering from malignant hypertension
and that this circumstance greatly engenders doubt as to the proximate cause of the victim’s death.
Petitioner, thus, contends that he could only be adjudged guilty of physical injuries.10

We are not persuaded.

The prosecution witness, Salazar, testified about petitioner’s lucky punch hitting Tomelden right smack
on the face. And even if Tomelden’s head did not hit the ground as his co-workers averted that actuality,
that punch gave him a bleeding nose and rendered him unconscious right after the September 28, 1993
fight. From then on, Tomelden was in and out of the hospital complaining of headache, among other
pains, until his demise on October 10, 1993, or 12 days after the blow that made Tomelden unconscious.

Significantly, Dr. Arellano testified conducting an autopsy on the body of Tomelden and stressed that
the "softened portion of the scalp over (R) occipito-temporal area about 5 inches above and posterior to
the (R) ear" of the victim could have been caused by a fist blow. She also opined that the fist blow which
landed on Tomelden’s head could have shaken his brain which caused the cerebral concussion; and that
the cause of the victim’s death was "cardio-respiratory arrest secondary to cerebral concussion with
resultant cerebral hemorrhage due to mauling incident."

The combined effects of the testimonies of Salazar and Dr. Arellano, buttressed by that of Rosario who
related about her husband’s post September 28, 1993 severe head pain, clearly establish beyond cavil
the cause of Tomelden’s death and who was liable for it.

The CA observed aptly:

It was through the direct accounts of the prosecution witnesses of the events that transpired during the
fisticuff incident x x x more specifically the landing of the "lucky punch" on the face of [Tomelden], taken
together with the result of the medical examinations and autopsy report which described the death of
the victim as "cardio-respiratory arrest secondary to cerebral concussion with resultant cerebral
hemorrhage due to mauling incident" that we are convinced that the "lucky punch" was the proximate
cause of [Tomelden’s] death. The prosecution had satisfactorily proven that it was only after the
incident that transpired on September 28, 1993 that the victim was hospitalized on several occasions
until he expired, twelve days later x x x. It is moreover of no consequence whether the victim was able
to report for work during the intervening days x x x.

We find no reason to depart from the doctrinal rule that great weight is accorded the factual findings of
the trial court, particularly with respect to the ascertainment of the credibility of witnesses. There was
absence of any ill motive on the part of x x x Salazar who in fact testified that he was a friend of both
[petitioner] and [Tomelden]; more so on the part of the attending physicians.11 x x x

Petitioner’s suggestion that Tomelden succumbed to heart ailment and/or that his death was the result
of his malignant hypertension is untenable, given that the post-mortem report yields no positive
indication that he died from such malady.

Mitigating Circumstances Present

Petitioner next contends that the mitigating circumstances of no intention to commit so grave a wrong
and sufficient provocation on the part of the victim ought to be appreciated in petitioner’s favor.

On this score, we agree with petitioner.

Paragraphs 3 and 4 of Art. 13, RPC provide as follows:

Art. 13. Mitigating circumstances.––The following are mitigating circumstances:

xxxx

3. That the offender had no intention to commit so grave a wrong as that committed.

4. That sufficient provocation or threat on the part of the offended party immediately preceded the act.

When the law speaks of provocation either as a mitigating circumstance or as an essential element of
self-defense, the reference is to an unjust or improper conduct of the offended party capable of
exciting, inciting, or irritating anyone;12 it is not enough that the provocative act be unreasonable or
annoying;13 the provocation must be sufficient to excite one to commit the wrongful act14 and should
immediately precede the act.15 This third requisite of self-defense is present: (1) when no provocation at
all was given to the aggressor; (2) when, even if provocation was given, it was not sufficient; (3) when
even if the provocation was sufficient, it was not given by the person defending himself; or (4) when
even if a provocation was given by the person defending himself, it was not proximate and immediate to
the act of aggression.16

In the instant case, Tomelden’s insulting remarks directed at petitioner and uttered immediately before
the fist fight constituted sufficient provocation. This is not to mention other irritating statements made
by the deceased while they were having beer in Bugallon. Petitioner was the one provoked and
challenged to a fist fight.

Petitioner’s unrebutted testimony on the events immediately preceding the fisticuff and earlier
dovetails with the testimony of Salazar.

In gist, petitioner testified being, in the afternoon of September 28, 1993, in the nearby town of
Bugallon for a picnic. He was with Tomelden and several others, including Dominador Navarro,
Chairperson of LIWAD. At a restaurant in Bugallon, the group ordered goat’s meat and drank beer.
When it was time to depart, Navarro asked petitioner to inform Tomelden, then seated in another table,
to prepare to leave.
When so informed, Tomelden insulted petitioner, telling the latter he had no business stopping him
from further drinking as he was paying for his share of the bill. Chastised, petitioner returned to his table
to report to Navarro. At that time, petitioner saw that Tomelden had already consumed 17 bottles of
beer. In all, the group stayed at the picnic place for three and a half hours before returning to the
LIWAD.

Upon reaching the LIWAD compound, Tomelden allegedly slapped and hurled insults at him, calling him
"sipsip" just to maintain his employment as Navarro’s tricycle driver. Tomelden allegedly then delivered
several fist and kick blows at petitioner, a couple of which hit him despite his evasive actions. Petitioner
maintained that he only boxed the victim in retaliation, landing that lucky punch in the course of
parrying the latter’s blows.

The following testimony of Salazar attests to the provocative acts of Tomelden and to his being the
aggressor:

PROSECUTOR CHIONG

Q After you heard from the accused those remarks, what if any did the victim replied if any?

WITNESS

A They exchanged angry words, sir.

Q What were these words?

A Rodel Urbano said, "When you’re already drunk, you keep on insulting me."

Q And what was the reply if any?

A ‘Akina tua lanti".

PROS. CHIONG

Q Who said that?

WITNESS

A It was Brigido Tomelden, sir.

Q And what transpired next?

A After that they exchange words, sir. " If you like we will have a fist fight" he said.

Q Who said that?

A Brigido Tomelden said.

Q At that time, were you already inside the compound of the LIWAD?

A Yes, sir.

Q After the victim allegedly told the accused, "If you want a fist fight," what transpired next?

A Rodel Urbano said, "if it is a fist fight we fight."17

Q And when you were already in the compound of LIWAD Office, Brigido Tomelden was challenging the
accused for a fist fight?

A Yes, sir.

Q And the accused refused to accept the challenge?

A Yes because Mr. Brigido Tomelden is very much bigger than Mr. Rodel Urbano. He is stouter than
the accused.

Q But finally the fist fight took place?

A Yes, sir.18

PROS. CHIONG

Q When the victim and this accused had this fight, fist fight, they exchanged blows, but there was this
lucky punch that hit the victim because the victim fall down, is that correct?

A When I stop pacifying them x x x, I saw Biring the late Brigido Tomelden, he was much aggressive
than the accused, sir.

Q You mean that although it was the victim who was more aggressive than the accused here, he also
[threw] punches but sometime some of his punches most of which did not hit the victim?

A He tried to parry the blows of the late Brigido Tomelden, sir.

Q Because he tried to parry the blow of the Brigido Tomelden, when the accused throw punches, the
punch was directed to the victim but most of them did not hit the victim, is that what you saw?

A Yes, sir.19 (Emphasis added.)

It is abundantly clear from the above transcript that the provocation came from Tomelden. In fact,
petitioner, being very much smaller in height and heft, had the good sense of trying to avoid a fight. But
as events turned out, a fisticuff still ensued, suddenly ending when petitioner’s lucky punch found its
mark. In People v. Macaso,20 a case where the accused police officer shot and killed a motorist for
repeatedly taunting him with defiant words, the Court appreciated the mitigating circumstance of
sufficient provocation or threat on the part of the offended party immediately preceding the shooting.
The Court had the same attitude in Navarro v. Court of Appeals,21 a case also involving a policeman who
killed a man after the latter challenged him to a fight. Hence, there is no rhyme or reason why the same
mitigating circumstance should not be considered in favor of petitioner.

Moreover, the mitigating circumstance that petitioner had no intention to commit so grave a wrong as
that committed should also be appreciated in his favor. While intent to kill may be presumed from the
fact of the death of the victim, this mitigating factor may still be considered when attendant facts and
circumstances so warrant, as in the instant case. Consider: Petitioner tried to avoid the fight, being very
much smaller than Tomelden. He tried to parry the blows of Tomelden, albeit he was able, during the
scuffle, to connect a lucky punch that ended the fight. And lest it be overlooked, petitioner helped carry
his unconscious co-worker to the office of the LIWAD’s general manager. Surely, such gesture cannot
reasonably be expected from, and would be unbecoming of, one intending to commit so grave a wrong
as killing the victim. A bare-knuckle fight as a means to parry the challenge issued by Tomelden was
commensurate to the potential violence petitioner was facing. It was just unfortunate that Tomelden
died from that lucky punch, an eventuality that could have possibly been averted had he had the
financial means to get the proper medical attention. Thus, it is clear that the mitigating circumstance of
"no intention to commit so grave a wrong as that committed" must also be appreciated in favor of
petitioner while finding him guilty of homicide. That petitioner landed a lucky punch at Tomelden’s face
while their co-workers were trying to separate them is a compelling indicium that he never intended so
grave a wrong as to kill the victim.

Withal, with no aggravating circumstance and two mitigating circumstances appreciable in favor of
petitioner, we apply par. 5 of Art. 64, RPC, which pertinently provides:

Art. 64. Rules for the application of penalties which contain three periods.––In cases in which the
penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed
of three different penalties, each one of which forms a period in accordance with the provisions of
Articles 76 and 77, the courts shall observe for the application of the penalty the following rules,
according to whether there are or are no mitigating or aggravating circumstances:

xxxx

5. When there are two or more mitigating circumstances and no aggravating circumstances are present,
the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem
applicable, according to the number and nature of such circumstances.

The prescribed penalty for homicide under Art. 249 of the RPC is reclusion temporal or from 12 years
and one day to 20 years. With the appreciation of two mitigating circumstances of no intention to
commit so grave a wrong as that committed and of sufficient provocation from the victim, and the
application of par. 5 of Art. 64, RPC, the imposable penalty would, thus, be the next lower penalty
prescribed for homicide and this should be prision mayor or from six years and one day to 12 years.
Consequently, with the application of the Indeterminate Sentence Law, petitioner ought to be
incarcerated from prision correccional as minimum and prision mayor as maximum. In view of the
circumstances of the case, considering that the petitioner never meant or intended to kill the victim, a
prison term of eight (8) years and one (1) day of prision mayor as maximum period is proper while the
period of two (2) years and four (4) months of prision correccional as minimum period is reasonable.

We find no reason to modify the award of civil indemnity and moral damages.
WHEREFORE, the CA Decision dated January 25, 2008 in CA-G.R. CR No. 25371 is, in the light of the
presence and the appreciation of two mitigating circumstances in favor of petitioner,
hereby MODIFIED by decreasing the term of imprisonment. As thus modified, petitioner Rodel Urbano is
hereby sentenced to serve an indeterminate prison term of from two (2) years and four (4) months
of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum,
with whatever imprisonment he has already served fully credited in the service of this sentence. The
rest of the judgment is hereby AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

9. People v. Benito, G.R. No. L-32042, 13 February 1975

G.R. No. L-32042 December 17, 1976

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ALBERTO BENITO y RESTUBOG accused-appellant.

RESOLUTION

AQUINO, J.:

Alberto Benito was sentenced to death by the Circuit Criminal Court of Manila after he pleaded guilty to
the charge of murder for having shot with a .22 caliber revolver Pedro Moncayo, Jr. on December 12,
1969. The killing was qualified by treachery and aggravated by premeditation and disregard of rank. It
was mitigated by plea of guilty.

After a mandatory review of the death sentence, this Court in its decision of February 13, 1975 affirmed
the judgment of conviction. It appreciated in Benito's favor the mitigating circumstance of voluntary
surrender. The penalty was reduced to reclusion perpetua. (People vs. Benito, 62 SCRA 351).

Benito filed a motion for reconsideration. He contends that he is entitled to the mitigating circumstance
of immediate vindication of a grave offense and that the aggravating circumstances of disregard of rank
should not be appreciated against him.

Benito, 26, a native of Naga City, in his sworn statement , which was taken, about five hours after the
shooting, by Corporal E. Cortez and Patrolmen J. de la Cruz, Jr., and
H. Roxas of the Manila Police, recounted the background and circumstances of the tragic incident in this
manner (Exh. A):

... alam ninyo ho, ako ay dating empleyado ng Civil Service Commission sa kalye P.
Paredes, Sampaloc, Maynila, at ako ay Clerk 2 sa Administrative Division at ako ay
nagumpisa ng pagtratrabaho sa Civil Service magmula pa noong November, 1965 ng ako
 ay nasuspende sa aking trabaho dahil kinargohan nila ako ng "DISHONESTY" at
nasuspende ako ng 60 days at nabalik ako sa trabaho noong January 1966 pero
kinarguhan uli nila ako ng "MALVERSARTION OF PUBLIC FUNDS, QUALIFIED THEFT,
ESTAFA at FALSIFICATION OF PUBLIC DOCUMENT at dinimanda din ako ng Civil Service
ng Administrative case ng "DISHONESTY" at dinismiss na ako sa trabaho ni
Commissioner Subido noong February 16, 1966.

At magmula noon ay nawalan na ako ng trabaho pero lahat ho noong kinargo nila sa
akin na sinabi ko sa inyo ay "fabricated" lang ang mga evidensiya at ang gumawa ho
noong ay ang binaril ko kanina na si PEDRO MONCAYO JR. Y RAMOS at naka pending pa
ngayon sa City Fiscal ng Maynila kay Asst. Fiscal Magat at iyon namang "dismissal order"
ni Commissioner Subido ay inapela ko sa Civil Service Board of Appeals.

Magmula noong Idinismiss nila ako sa aking trabaho dahil sa "fabricated" charges ay
naghirap na ko sa aking buhay at nahihiya ako sa mga kaibigan ko. Ako ay assign(ed) sa
collecting department noon at nagagalit sa akin ang mga empleyado ng Civil Service
dahil mahigpit ako sa kanila.

Noong bandang alas 7:00 ng gabi noong Dec. 11, 1969, ako ay nagpunta sa Civil Service
sa kalye Paredes at nakita ko si PEDRO MONCAYO, Jr. at kinausap ko siya at tinanong ko
siya na iyong kaso ko ay matagal na at hindi pa natatapos at baka matulungan niya ako
at ang sagot niya ay "UMALIS KA NA NGA DIYAN BAKA MAY MANGYARI PA SA IYO AT
BAKA IPAYARI KITA DITO" at umalis na ko.

Kaninang bandang alas 11:00 ng umaga ay nagkita kami ni PEDRO MONCAYO Jr. sa loob
ng compound ng Civil Service at sa harapan ng maraming tao sinabi niya na
"NAGIISTAMBAY PALA DITO ANG MAGNANAKAW" kaya ang ginawa ko ay umalis na ako.

Kaninang bandang alas 5:25 ng hapon, nitong araw na ito, Desiyembre 12, 1969, nakita
ko si PEDRO MONCAYO Jr. na nagmamanejo noong kotse niya sa kalye P. Paredes sa
tapat ng Civil Service, sinundan ko siya at pagliko ng kotse niya sa kanto ng P. Paredes at
Lepanto, Sampaloc, Maynila, ay binaril ko siya ng walong beses at tinamaan siya at
napatumba siya sa kaniyang upuan sa kotse.

Pagkatapos ay tumawag ako sa telepono sa MPD Headquarters para sumurender at

kayo nga ang dumating kasama ninyo iyong mga kasama ninyo.

Benito surrendered to the police the revolver (Exh. C) used in the shooting with the eight empty shells of
the bullets which he had fired at Moncayo.

The Police report contains the following background and description of the killing (Exh. B):

According to the suspect, he was a former employee of the Civil Service Commission at
its main office located at P. Paredes, Sampaloc. Mla., and was assigned as Clerk 2 in the
Administrative Division from Nov. 1963 continuously up to Nov. 1965 when he was
suspended for "DISHONESTY".
 After two months, he was reinstated but was criminally charged for QUALIFIED THEFT,
MALVERSATION OF PUBLIC FUNDS, ESTAFA and FALSIFICATION OF PUBLIC DOCUMENTS
and administratively charged for "DISHONESTY" culminating in his dismissal from the
Civil Service on February 1966.

The aforecited criminal charges against the suspect was allegedly investigated by Asst.
Fiscal MAGAT. Records from the CRID, MPD, reveals that on Dec. 6, 1966, Hon. Judge
ROAN of the City Court of Mla. issued a Warrant No. E-316758 for the arrest of the
suspect for the crime of ESTAFA.

On May 24, 1969, Hon. Judge JUAN O. REYES of the CFI of Mla. issued an order No. OA-
87409 for the arrest of the suspect for the crime of MALVERSATION OF PUBLIC FUNDS.
According to the suspect, the aforecited criminal and administrative charges filed him
were allegedly instigated and contrived by the victim and since the time of his dismissal,
he was allegedly jobless.

On Dec. 11, 1969, the suspect went to the Civil Service at P. Paredes st. and requested
the victim to help him in his cases but the former allegedly uttered to the suspect
"UMALIS KA NGA DIYAN BAKA MAY MANGYARI PA SA IYO AT BAKA IPAYARI KITA DITO".

The suspect left and returned the following morning at 11:00 a.m. of Dec. 12, 1969, and
when they met again, the victim allegedly remarked in the presence of many people,
"NAGIISTAMBAY PALA DITO ANG MAGNANAKAW". The suspect who was humiliated and
incensed, left.

At about 5:25 p.m. of that same day, Dec. 12, 1969, the suspect who was armed with an
unlicensed Cal. 22 black revolver (w/ SN - P-5317, Trademarked "SENTINEL", SQUIRES
BINGHAM MFG. CO. INC. MLA. P.I.) loaded with nine (9) live Cal. 22 bullets in its
cylinder, waited for the victim outside the Civil Service compound at P. Paredes st.
Sampaloc, Mla.

The victim showed up and drove his green Chevrolet 2 door car (w/ Plate No.
L-10578 Mla. 69) along P. Paredes st. The suspect with evident premeditation,
surreptitiously followed the victim and when the latter's car was at a full stop at the
corner of Lepanto and P. Paredes sts. due to heavy traffic of motor vehicles, the suspect
without any warning or provocation, suddenly and treacherously shot the victim eight
(8) times on the head and different parts of the body at closer range which
consequently caused the latter's death on the spot inside his car.

The suspect then fled while the victim was conveyed on board a red private car (w/
Plate No. L-55117) by his co-employees (composed of VICTOR VILLAR, ELEUTERIO
MENDOZA & FORTUNATO JOSE Jr.) to the FEU Hospital. Unfortunately, the victim was
pronounced DOA by Dr. P. PAHUTAN, SOD, at 5:40 p.m. of Dec. 12, 1969.

The thirty-six year old victim, a certified public accountant, was the Assistant Chief of the Personnel
Transactions Division and Acting Chief, Administrative Division of the Civil Service Commission (Exh. E to
E-2). The accused was a clerk in the cash section, Administrative Division of the Commission, receiving
P1,884 per annum (Exh. D). He started working in the Commission on November 7, 1963.

On October 21, 1965 Moncayo, as an administrative officer, reported to the Commissioner of Civil
Service that Benito admitted having malversed an amount between P4,000 and P5,000 from his sales of
examination fee stamps. Moncayo's report reads as follows (Exh. F):

MEMORANDUM for
The Commissioner
Through Proper Channels

This refers to the case of Mr. ALBERTO R. BENITO, Clerk II in the Administrative Division
of this Commission, who, as had previously been reported, malversed public funds in
the amount of approximately P5,000.00 out of his collections from the sale of
examination fee stamps.

I wish to state that this matter came to my attention on the evening of March 1, 1965
when Mr. Teodoro Abarquez, Acting Cashier I, reported to me that fifty (50) money
orders at P2.00 each with a total vlaue of P100.00 were missing from a bundle of money
orders received from the Provincial Treasurer of Cotabato, which were kept by him in
one of the cabinets inside the Cashier's Cashier' room.

At the same time he also informed me that he suspected that Mr. Benito stole the
missing money orders. His suspicion arose from the fact that he found several money
orders marked "Cotabato" as their place of issue among the cash receipts turned over to
him by Mr. Benito that afternoon as his collection from the sale of examination fee
stamps. Mr. Abarquez showed to me the said money orders issued in Cotabato which
were turned over to him by Mr. Benito and after checking their serial numbers with the
records of list of remittances on file, we were able to establish definitely the fact that
the said money orders were those missing.

It may be stated that at that time, Mr. Benito was assigned to work in the Cash Section
and one of his duties was to sell examination fee stamps to applicants for examinations.
It was then the practice of the cashier to issue to Mr. Benito in the morning examination
fee stamps to be sold during the day and in the afternoon he turned over to the Cashier
the proceeds from the sale of stamps including the unsold stamps issued to him. After
considering the work performed by Mr. Benito, it became evident that he succeeded in
malversing the amount of P100.00 by substituting equivalent amount of money orders
in the place of the cash extracted by him from his daily collections from the sale of
examination fee stamps when he clears his accountability with the Cashier.

The following day, I confronted Mr. Benito in the presence of Mr. Abarquez and ask him
whether he had something to do with the loss of the fifty (50) money orders at P2.00
each. At first he denied, but when I asked him where he obtained the money orders
issued in Cotabato which were included in his collections the day preceding, he
admitted having stolen the missing money orders.
Having confessed his guiltk, I then asked Mr. Benito when he started committing the
said irregularity and how much in all did he actually malversed out of his daily
collections from the time that he started the anomaly. He stated in the presence of Mr.
Abarquez that he started in January, 1965 and that although he did not know exactly the
total amount malversed by him, he believed the amount to be between P4,000.00 to
P5,000.00. He also confessed that he used the money orders remitted by the Provincial
Treasurer of Negros Occidental in the amount of P3,436.00 in substituting various
amounts extracted by him from his daily cash collections and used by him for personal
purposes.

It appears from the records that the List of Remittances covering the money orders
received from the Provincial Treasurer of Negros Occidental was duly receipted by Mr.
Benito. He was supposed to issue an Official Receipt therefor in favor of the said
Provincial Treasurer and then turn over to the Cashier the amount involved for deposit
to the National Treasurer. The said List of Remittances, duly signed by Mr. Benito, is
enclosed for use as evidence in this case.

I told Mr. Benito that I cannot do anything but report the matter to the Commissioner.
However, he pleaded that he be given first an opportunity to restore the amount before
I make my report in order that the penalty that may be imposed upon him may be
lessened to a certain degree. As I thought it wise in the interest of the service to recover
the amount involved, I allowed him to go and see his parents in Naga City to raise the
amount in question.

After two weeks, Mr. Benito informed me that his parents filed an application for a loan
with the Government Service Insurance System and that the proceeds of the said loan
which he intended to use in restoring the amount malversed by him were expected to
be released during the last week of May, 1965. However, when the month of May, 1965
elapsed without the amount involved having been restored, I conferred with Mr. del
Prado, my immediate superior and asked him whether we should wait further for the
release of the said loan in order that the amount involved may be recovered. Mr. Prado
consented to giving him a little more time.

When Mr. Benito still failed to restore the amount in question by the end of June, 1965,
I got hold of him on July 5, 1965 and together with Messrs. del Prado, Abarquez and
Gatchalian, also of this Commission, brought him before Deputy Commissioner A. L.
Buenaventura and reported the entire matter to the Deputy Commissioner. In the
presence of Messrs. del Prado, Abarquez, Gatchalian and myself, Mr. Benito admitted
readily and voluntarily before the Deputy Commissioner the commission of the offense
of malversation of public funds as stated above.

In view of the foregoing, it is recommended that Mr. Benito be charged formally and
that he be suspended from office immediately considering the gravity of the offense
committed by him.

(Sgd.)
PEDRO
R.
 MONC
AYO
Admini
strative
Officer
II

Benito was charged with dishonesty. He had admitted to Deputy Commissioner Alipio Buenaventura
that he had misappropriated his collections and spent the amount in nightclubs and pleasure spots and
for personal purposes. The decision dismissing him from the service reads as follows (Exh. G):

This is an administrative case against Mr. Alberto R. Benito, Clerk I, Cash Section,
Administrative Division of this Office, for dishonesty.

The following excerpts from the letter dated October 22, 1965 of the Commissioner of
Civil Service connect respondent with the alleged misappropriation of public funds
representing his collection from the sale of examination fee stamps and constitute the
basis of the instant case against him:

An investigation made by this Commission shows that you malversed

public funds in the amount of P3,536.00 out of your collections from the
sale of examination fee stamps while in the performance of your official
duties as Clerk II in the Cash Section, Administrative Division of this
Office. It appears that you succeeded in malversing the above-stated
amount from your cash collections by substituting in lieu thereof money
orders worth P3,436.00 remitted to this Commission by the Provincial
Treasurer of Negros Occidental which were duly receipted for by you. It
also appears that you extracted from a bundle of money orders
remitted by the Provincial Treasurer of Cotabato the amount of P100.00
in money orders which were kept in one of the cabinets in the Cashier's
room.

Respondent denied the charge. He explained, among others, that money orders were
always kept in the Cashier's safe and he had no access to them. Although he admitted
having received money orders amounting to P3,436.00 remitted by the Provincial
Treasurer of Negros Occidental and another remittance of the Provincial Treasurer of
Cotabato he, however, disclaimed having substituted the same for cash collections in his
sale of examination fee stamps. He reasoned out further that he could not be charged
with malversation of public funds inasmuch as he was not then an accountable officer.

It appears that respondent, as Clerk in the Cash Section, performs, among other duties,
the selling of examination fee stamps, receiving payments therefor, and receiving
remittances in form of cash and/or money orders from provincial treasurers in
connection with examinations held in the provinces. It was also his duty to issue official
receipts for said remittances. In the course of the performance of his duties, he received
said remittances from the Provincial Treasurers of Negros Occidental and Cotabato, but
no official receipts were issued by him, as shown by the reply telegrams pertaining
thereto. While records disclose that remittances from the province of Cotabato were
 submitted to the Cashier of the Civil Service Commission, there is no evidence showing
that remittances from Negros Occidental were likewise submitted.

Investigation further reveals that 50 money orders were discovered missing from the
remittances of Cotabato Provincial Treasurer which were kept in the cabinet of the
Cashier. On or about March 2, 1965, the Cashier of the Commission noticed that 15
money orders turned over by respondent as part of his collections in the sale of
examination fee stamps were among the missing money orders. This triggered off the
filing of this case against the respondent.

On July 5, 1965, respondent admitted before the then Deputy Commissioner Alipio
Buenaventura having misappropriated an aggregate amount ranging from P3,000 to
P7,000, which he spent in night clubs, pleasure spots and other personal benefits.
Despite the testimonies of several witnesses regarding his confession, including that of
the then Deputy Commissioner himself, respondent, when asked to take the stand,
denied his previous admission.

Instead, he argued that the cash and accounts of the Cashier of the Civil Service
Commission, when examined by representatives of the Auditor's Office, did not indicate
any shortage and therefore there was no irregularity involved. This argument is not well
taken. Inasmuch as the remittances received by respondent from said Provincial
Treasurers of Negros Occidental and Cotabato were not in turn given corresponding
official receipts, naturally, the same were not reflected on the Cashier's cash book.

The weakness of respondent's defense lies not so much on its failure to establish
convincingly his innocence as its irreconciliability with established facts. Obviously, none
of the circumstances in this case is consistent with his claim of innocence. On the
contrary, all of them put together produce reasonable assurance of respondent's guilt.

In view of the foregoing, this Office finds respondent Alberto R. Benito guilty as charged.
Wherefore, he is dismissed from the service effective upon his receipt of this decision.

In the interest of the service this decision is executed also on the date of his receipt of
this decision.

Benito appealed to the Civil Service Board of Appeals from the Commissioner's decision dismissing him.
The appeal was pending at the time when he assassinated Moncayo (Exh. I).

The foregoing antecedents of the assassination shed light on the remark which the victim, Moncayo,
allegedly made upon seeing Benito in the compound of the Civil Service Commission near the canteen at
eleven o'clock in the morning of December 12, 1969 (about six hours before the shooting):
"Nagiistambay pala dito and magnanakaw." (Exh. A or 1); or, as Benito testified, Moncayo said: "Hindi ko
alam na itong Civil Service pala ay istambayan ng magnanakaw." (27 tsn December 26, 1969).

Mitigating circumstance of immediate vindication of a grave offense. — Benito contends that Moncayo
insulted him when he (Moncayo) remarked that a thief was loitering in the premises of the Civil Service
Commission. Benito argues that that remark "was tantamount to kicking a man already down and to
rubbing salt into a raw wound" and that, as it was made publicly and in a loud voice, he was exposed to
ridicule in the presence of his officemates.

Benito attached to his motion a copy of the decision of Judge Jose C. Colayco dated January 16, 1975,
acquitting him of the charge of malversation in connection with his alleged misappropriation of the fees
collected from the examinees of the 1974 patrolman examination. That same decision makes reference
to Benito's exoneration from the administrative charge. The court's decision reads as follows:

The accused is charged with malversation under the following information:

That on or about and during the period comprised between October 17,
1964, to February, 1965, inclusive, in the City of Manila Philippines, the
said accused being then employed as Clerk I of the Civil Service
Commission, a branch of the government of the Republic of the
Philippines, among whose duties were to accept payments of fees
collected from the examinees of the 1964 Patrolman examination, and
by reason of his said position received the total amount of P3,536.00,
with the duty to turn over and/or account for his collections to the
cashier of the Civil Service Commission immediately or upon demand
but the said accused once in possession of the said amount of
P3,536.00, with intent to defraud, despite repeated demands made
upon him to turn over and to account for the same, did then and there
willfully, unlawfully and feloniously misappropriate, misapply and
convert and malverse the said amount to his own personal use and
benefit, to the detriment of public interest and to the damage and
prejudice of the said Civil Service Commission in the said amount of
P3,536.00, Philippine currency.

Contrary to law.

The evidence shows that the accused had an appointment as clerk in the Civil Service
Commission from May 27, 1964, as clerk I, range 23 from June 1, 1965 and as clerk I,
range 26 from July 23, 1965 (Exhibits A, A-1, A-2). He had the duty, among others, of
selling Civil Service examination- fee stamps and to receive payment therefor, as well as
to receive remittances of money orders and checks from the provincial treasurers for
payments of examination fee stamps (Exhibit B).

Teodoro Abarquez, a cashier of the Civil Service Commission during the period alleged in
the information, testified in his direct examination that Benito was working in his office;
that one of the duties that he assigned to him was to sell examination fee stamps; that it
was customary for him to give stamps to Benito at the start of office hours in the
morning and that Benito turned over to him the proceeds of the sale, as well as the
unsold stamps, at the close of office hours in the afternoon; that one afternoon he
noticed that Benito turned over to him 50 money orders from Cotabato, together with
some cash, as proceeds of the sale of stamps for that day; that he remembered that he
was missing money orders from one of his cabinets where he kept them; that when he
discovered that the 50 money orders were those which were missing, he reported the
matter to Pedro Moncayo, the chief administrative officer; on March 1, 1965; that the
money orders were for P2.00 each, and were payments of the examination fees from
Cotabato (Exhibit F); that he discovered the loss of the 50 money orders on February 28,
1965 and reported it to Moncayo on March 1, 1965, together with the list of missing
orders (Exhibit M); that after receiving the report, Moncayo called Benito to the office of
Abarquez where he admitted taking the missing money orders; that Moncayo submitted
a memorandum to the Commissioner, dated October 21, 1965, after giving Benito a
chance to refund the value of the money orders (Exhibit O). Alipio Buenaventura, acting
Deputy Commissioner at the time, and Eliseo S. Gatchalian, budget officer, testified that
when Benito was confronted with the report of Moncayo and Abarquez, he admitted
that he misappropriated about P3,000.00 because of bad company and that he asked
for a chance to refund the money.

Under cross-examination, Abarquez elucidated his testimony in his direct examination

and explained that when Benito turned over the proceeds of the sale of stamps for that
particular day, he kept the sum of P100.00 and replaced it with the 50 money orders
that he had taken from the cashier's office to cover up the money that he had pocketed.
When he was asked when he discovered that Benito substituted the 50 money orders
from Cotabato, he answered that he checked them the following night (March 2, 1965)
with the list of money orders remitted by the Provincial treasurer (Exhibits F, F-1); but
when he was confronted with his affidavit which he executed on April 18, 1966 (Exhibit
R), he reluctantly admitted that he had only verified 15 money orders missing as of April
18, 1966 and that he did not keep any record of the money and the money orders given
to him by Benito on March 1, 1965.

He also admitted that the room where he kept the money orders in an unlocked drawer
was also occupied by two other persons, and that this was the first time that he had not
followed the usual procedure of keeping them in the safe. He further admitted that,
although regular examinations were conducted during the period of October 1, 1964 to
February 28, 1965 by the examiners of the Civil Service Commission and the auditors of
the General Auditing Office, they did not find any shortage in the accounts of Benito.

Finally, when the Court asked him what happened to the 50 money orders, at first he
hinted that they were not deposited with the Bureau of Treasury because they were
reported missing; but when pressed further, he said that he deposited them, but did not
issue any official receipt for them. When asked if he had any evidence to show that they
were actually deposited, he admitted that he could not even remember when he
deposited them.

The testimony of Teodoro Abarquez upon which the prosecution has built its case, is too
weak and shaky to sustain a finding of guilt because of his glaring inconsistencies,
contradictions and gaps in memory. The prosecution has failed to present convincing
evidence that the 50 money orders were even lost: According to Abarquez he had only
verified the loss of 15 on April 18, 1966, although he testified earlier that he determined
the loss of 50 the night after March 1, 1965.

The examiners of the Civil Service Commission and the auditors of the General Auditing
Office did not find any irregularity in the cash accountability of Benito, according to
Abarquez. This was corroborated by Romeo Jarabelo, auditor of the Commission on
 Audit and Miguel Games, auditing examiner assigned to the Civil Service Commission,
who testified for the accused. Benito was in fact exonorated the administrative charge
filed against him for the time same transaction (Exhibit E).

In fact, the testimony of Abarquez under cross-examination that he has not issued any
official receipt for the 50 money orders and his inability to prove that he deposited
them with the bureau of Treasury gives rise to the suspicion that other persons, not the
accused, may have stolen the 50 missing money orders. Even without taking into
account the testimony of the accused, who denied the testimonies of the witnesses for
the prosecution, the court believes that the prosecution has failed to prove the guilt of
the accused.

WHEREFORE, judgment is hereby rendered acquitting the accused, with costs de oficio.

The Solicitor General argues that the defamatory remark imputed to Moncayo cannot give rise to the
mitigating circumstance of vindication of a grave offense because it was not specifically directed at
Benito. The prosecution notes that the remark was uttered by Moncayo at eleven o'clock in the
morning. According to Benito's testimony (not consistent with his confession), he saw Moncayo three
hours later or at two o'clock in the afternoon and inquired from him about his case and Moncayo said
that he had already submitted his report and he could not do anything more about Benito's case (26
tan). As already stated, the assassination was perpetrated at around five o'clock in the afternoon of the
same day.

Assuming that Moncayo's remark was directed at Benito, we see no justification under the
circumstances recited above for changing our prior opinion that the mitigating circumstance of "haber
ejecutado el hecho en vindicacion proxima de una ofensa grave, causada al autor del delito," cannot be
appreciated in Benito's favor. As aptly stated by the ponente, Justice Esguerra, Benito "had more than
sufficient time to suppress his emotion over said remark if he ever did resent it."

"La apreciacion de la proximidad queda al arbitrio del tribunal; el Tribunal Supremo (de España) no ha
apreciado la proximidad ... cuando la ofensa se realizo por la mañana y el delito tuvo lugar por
la tarde (Sentencia de 11 noviembre 1921); por regla general no es proxima cuando transcurre tiempo
suficiente para la razon recobre su imperio sobreponiendose a la pasion (Sentencias de 28 mayo 1882, 4
noviembre 1893, 24 junio 1908, etc.) ... Si falta el requisito de la proximidad debe desestimarse
(Sentencia de 3 julio 1950). Exige gravedad en la ofensa y proximada en la reaccion." (Note 9, 1 Cuello
Calon, Derecho Penal. 1975 Ed., p. 564).

The Spanish Supreme Court also held that "no puede apreciarse esta circunstancia atenuante en favor
del autor de un homicidio cometido 'algunas horas despues de haberle invitado el interfecto a renir y
golpeado en el pecho con las manos', porque el tiempo transcurrido entre los golpes y la muerte fue
suficiente para que el animo del reo se serenase (Sentencia de 24 Junio 1908, Gaceta 28 Agosto 1909,
IV-V Enciclopedia Juridica Española 1182).

The six-hour interval between the alleged grave offense committed by Moncayo against Benito and the
assassination was more than sufficient to enable Benito to recover his serenity. But instead of using that
time to regain his composure, he evolved the plan of liquidating Moncayo after office hours. Benito
literally ambushed Moncayo just a few minutes after the victim had left the office. He acted with
treachery and evident premeditation in perpetrating the cold-blooded murder.

The facts of the case strongly suggest that what really impelled Benito to assassinate Moncayo was not
the latter's alleged defamatory remark that the Civil Service Commission compound was a hangout for a
thief or for thieves but the refusal of Moncayo to change his report so as to favor Benito. Benito did not
act primarily to vindicate an alleged grave offense to himself but mainly to chastise Moncayo for having
exposed the alleged anomalies or defraudation committed by Benito and for obstinately refusing to
change his report.

Aggravating circumstance of disregard of rank.— Benito contends that disregard of rank should not be
considered against him because there was no evidence that he "deliberately intended to offend or insult
the rank" of Moncayo. That contention has no merit.

It should be borne in mind that the victim was a ranking official of the Civil Service Commission and that
the killer was a clerk in the same office who resented the victim's condemnatory report against him. In
that situation, the existence of the aggravating circumstance of "desprecio del respeto que por la
dignidad mereciere el ofendido" is manifest.

The instant case is similar to a case where the chief of the secret service division killed his superior, the
chief of police (People vs. Hollero, 88 Phil. 167) and to the killing of the acting Spanish consul by his
subordinate, the chancellor of the consulate, who had misappropriated the funds of the consulate,
which misappropriation was discovered by the victim (People vs. Martinez Godinez, 106 Phil, 597, 606).
In these two cases the murder was aggravated by disregard of rank.

WHEREFORE, the motion for reconsideration is denied.

SO ORDERED.

10. Bacabac v. People, G.R. No. 149372, 11 September 2007

G.R. No. 149372 September 11, 2007

RICARDO BACABAC, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CARPIO MORALES, J.:

In the evening of December 23, 1990, Hernani Quidato (the victim) was at a dance hall in Purok 4, San
Joaquin, Iloilo City in the company of Eduardo Selibio (Eduardo) and Melchor Selibio (Melchor). And so
were Jonathan Bacabac (Jonathan) and Edzel Talanquines (Edzel).1
Jonathan and Edzel left the dance hall. Not long after, the victim and his companions also left and on
their way home, they encountered Jonathan and Edzel. It appears that the two groups then and there
figured in a misunderstanding.

On his way home, Jesus Delfin Rosadio (Jesus), who was also at the dance hall, noticed a commotion. He
soon saw that Melchor was "hugging" Edzel, and later "tying" Jonathan "with his hands." Still later, he
saw the victim hit Edzel with a "stick."2 He thus told the victim and his companions that Edzel is the son
of Councilor Jose Talanquines, Jr. (Jose), whereupon Eduardo3 told him (Jesus) to go away for they might
shoot him. Jesus thus left and proceeded to Edzel's residence to report to his father what he had
witnessed. In the meantime, Edzel and Jonathan managed to flee.

The victim and his companions thereafter headed for home in the course of which they met Pat. Ricardo
Bacabac (herein petitioner), together with Edzel and Jonathan who are his nephews, and Edzel's father,
Jose, his mother, and two sisters at the corner of M.H. Del Pilar and Sto. Domingo Streets. Petitioner and
Jose were carrying M-16 armalites, while Jonathan and Edzel were carrying a piece of wood and a
revolver, respectively.

Jesus thereupon pointed to the victim and his companions as the ones who had manhandled Jonathan
and Edzel. The victim apologized, explaining that he and his companions mistook Jonathan and Edzel for
other persons. Jesus blurted out, however, "You are just bragging that you are brave. You are only
bullying small children."4 Petitioner, at that instant, fired his armalite into the air, while Jose fired his
armalite ("as if spraying his rifle from right to left") at the victim and Eduardo, even hitting Jonathan in
the thigh as he (Jonathan) "was on the move to strike [the victim] with a piece of wood." Eduardo fell.
And so did the victim who was in a kneeling position, and as he was raising his hands in surrender, Jose
shot him again.

Meanwhile, Melchor escaped.5

The victim, Eduardo, and Jonathan were brought to the hospital. The victim was pronounced dead on
arrival. Eduardo died two hours later.

Post-mortem examination showed that the victim sustained two bullet wounds in the thoraco-
abdominal regions and one bullet wound in the extremities, and that he died due to "maceration of the
internal organs due to bullet wounds."6 Eduardo sustained two bullet wounds in the thoraco-abdominal
region, and died of "hemorrhage due to gunshot wounds."7

Two Informations for Murder were filed with the Regional Trial Court (RTC) of Iloilo City against Jose,
Edzel, Jonathan, Jesus, and the herein petitioner. The accusatory portion of the first Information,
docketed as Criminal Case No. 35783, reads:

That on or about the 23rd day of December, 1990, in the Municipality of San Joaquin, Province of
Ilo-ilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another to better realize their
purpose, armed with two (2) M16 [a]rmalite [r]ifles and one (1) nickel-plated revolver of
unknown make and caliber, with deliberate intent and decided purpose to kill, with treachery
and evident premeditation and without any justifiable cause or motive, did then and there
willfully, unlawfully and feloniously assault, attack and shoot one HERNANI QUIDATO with the
 firearms they were then provided, inflicting upon the latter gunshot wounds on the different
parts of his body which caused the immediate and instantaneous death of said Hernani Quidato.

CONTRARY TO LAW.8

The accusatory portion of the second Information, docketed as Criminal Case No. 35784, reads:

That on or about the 23rd day of December, 1990, in the Municipality of San Joaquin, Province of
Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another to better realize their purpose,
armed with two (2) M16 [a]rmalite [r]ifles and one (1) nickel-plated revolver of unknown make
and caliber, with deliberate intent and decided purpose to kill, with treachery and evident
premeditation and without any justifiable cause or motive, did then and willfully, unlawfully and
feloniously assault, attack and shoot one EDUARDO SELIBIO with the firearms they were then
provided inflicting upon the latter gunshot wounds on the different parts of his body which
caused the immediate and instantaneous death of said Eduardo Selibio.

CONTRARY TO LAW.9

The cases were jointly tried.

By Decision of April 30, 1993, Branch 39 of the Iloilo RTC, finding the presence of conspiracy among
petitioner and his co-accused,10 convicted them of murder qualified by treachery.11 The dispositive
portion of the decision of the trial court reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

In Criminal Case No. 35783, all the accused, namely; Jose Talanquines, Jr., Edzel Talanquines,
Jonathan Bacabac, Pat. Ricardo Bacabac, and Jesus Delfin Rosadio are hereby found guilty
beyond reasonable doubt of the crime of murder and there being no aggravating circumstances
with one mitigating circumstance [immediate vindication for Jose and Jesus; voluntary surrender
for Pat. Ricardo Bacabac12], and applying the indeterminate sentence law, accused Jose
Talanquines, Jr., Ricardo Bacabac and Jesus Delfin Rosadio are hereby sentenced each to
suffer imprisonment for a period of 10 years and 1 day, as minimum, to 17 years, 4 months and
1 day as maximum; while accused Edzel Talanquines and Jonathan Bacabac who are entitled to
the privileged mitigating circumstance of minority and the ordinary mitigating circumstance of
immediate vindication of a grave offense are hereby sentenced each to suffer imprisonment for
a period of four (4) years, 2 months, and 1 day, as minimum, to 10 years and 1 day as maximum.
All the accused are ordered to pay jointly and severally the heirs of the deceased Hernani
Quidato, the amount of P50,000.00 for his wrongful death; P20,000.00 for moral
damages; P10,000.00 for attorneys fees; and the costs of the suit. (Underscoring supplied)

In Criminal Case No. 35784, judgment is hereby rendered as follows:

All the accused, namely; Jose Talanquines, Jr., Edzel Talanquines, Jonathan Bacabac, Pat. Ricardo
Bacabac and Jesus Delfin Rosadio are hereby found guilty of the crime of Murder and there
being no aggravating circumstance with one mitigating circumstance, accused Jose Talanquines,
 Jr., Ricardo Bacabac and Jesus Delfin Rosadio are hereby sentenced each to suffer imprisonment
for a period of 10 years and 1 day as minimum, to 17 years, 4 months and 1 day, as maximum;
while accused Edzel Talanquines and Jonathan Bacabac who are entitled to the privileged
mitigating circumstance of minority and the ordinary mitigating circumstance of immediate
vindication of a grave offense, are hereby sentenced to suffer imprisonment for a period of 4
years, 2 months and 1 day, as minimum to 10 years and 1 day as maximum. All the accused are
ordered to pay jointly and severally the heirs of the deceased Eduardo Selibio, the amount
of P50,000.000 for his wrongful death; P20,000.00 for moral damages; P10,000.00 for attorney's
fees; and the costs of the suit. (Underscoring supplied)

Accused Jesus Delfin Rosadio, who is detained, is hereby credited with the number of days he
spent under detention, if he is qualified.

SO ORDERED.13

While petitioner and his co-accused filed a Notice of Appeal14 which was given due course,15 only
petitioner filed a Brief, albeit beyond the extensions granted to him, drawing the Court of Appeals to
dismiss his appeal.16 The conviction of petitioner's co-accused had thus become final and executory.

Petitioner's Motion for Reconsideration17 of the dismissal of his appeal having been denied,18 he filed a
Petition for Review with this Court which, by Resolution of October 22, 1997, directed the Court of
Appeals to reinstate petitioner's appeal.19

By Decision20 of June 28, 1999, the Court of Appeals affirmed the trial court's decision. Entry of final
judgment was made by the Court of Appeals on July 22, 1999.21

The trial court thereafter issued a February 7, 2000 Order directing the issuance of warrants for the
arrest of the accused.22 Except petitioner, all were arrested.23

On February 24, 2000, petitioner filed before the appellate court a Petition for Relief from Judgment,
Order, and/or Denial of Appeal24 which was granted,25 hence, the Entry of Judgment issued by the
appellate court on July 22, 1999 was set aside. He thereafter filed a Motion for Reconsideration26 of the
appellate court's June 28, 1999 Decision which was denied by Resolution of August 8, 2001;27 hence, the
present Petition for Review on Certiorari.28

Petitioner assails the Court of Appeals' decision as follows:

First: Contrary to its conclusion on the basis of the facts of the case, Petitioner may not be
deemed to be in conspiracy with the other Accused.

Second: Contrary to its conclusion, there was no treachery.

Third: Contrary to its conclusion, Petitioner, assuming in gratis argumenti the correctness of the
pronouncement of guilt, should have been credited with the mitigating circumstance of
immediate vindication of a grave offense, in the same manner that the other Accused were so
credited.
 Fourth: Contrary to its conclusion, the guilt of the Petitioner has not been proved beyond
reasonable doubt; hence, by the equipoise rule, should have been acquitted.

Fifth: Contrary to its conclusion, Petitioner is not civilly liable.29 (Emphasis in the original)

The Court notes that the first, second, and fifth arguments of petitioner were, in the main, raised before
the appellate court.30

During the pendency of the present petition, petitioner, through counsel, filed before the trial court an
"Urgent Ex Parte Alternative Motions (Re: Pat. Ricardo Bacabac's Motion for Reconsideration and/or to
Vacate the Order dated February 7, 2000 [directing the arrest of the accused] and to Recall the Warrant
of Arrest Dated the Same Date in so far as the Accused Pat. Ricardo Bacabac Only is Concerned)."31 The
trial court denied32 the motion as it did deny33 petitioner's motion for reconsideration,34 drawing
petitioner to file before this Court on October 5, 2006 a "Motion to Vacate Order for the Arrest of the
Accused and the Warrant of Arrest Issued by the Regional Trial Court (Branch 39) of Iloilo City."35

In his "Motion to Vacate Order for the Arrest of the Accused and the Warrant of Arrest Issued by the
Regional Trial Court . . . ," petitioner argues that

[T]he basis of the RTC's Order of February 7, 2000 was the Entry of Judgment by the Court of
Appeals dated 25 November 1999.36 BUT THE SAID ENTRY OF JUDGMENT was ALREADY
VACATED and SET-ASIDE BY THE COURT OF APPEALS ITSELF ON ITS RESOLUTION DATED 13
DECEMBER 2000. Therefore, the RTC's Order of 7 February 2000 was ipso
facto vacated.37 (Emphasis in the original)

and that

[T]he second sentence of Section 7, Rule 65 of the Rules of Court cited by the Order of 13 July
2006 does not apply to the case at bench because the main case on the merits which originated
in the RTC as Criminal Cases Nos. 35783-84, went to the Court of Appeals as CA-G.R. No. 16348
and is now pending in the Supreme Court (Third Division) as G.R. No. 149372 because of
the Petition for Review On Certiorari filed by Movant herein x x x. THE MAIN CASE IS NO
LONGER PENDING IN THIS HONORABLE COURT [sic]. THEREFORE, THE RTC HAS NO
JURISDICTION TO REITERATE AND EXECUTE THE ORDER OF 7 FEBRUARY 2000.38 (Emphasis in
the original)

As this Court hereby affirms petitioner's conviction, resolution of his "Motion to Vacate . . ." is rendered
unnecessary.

Petitioner, denying the presence of conspiracy on his part, argues:

[The petitioner] affirms that he was at the scene of the incident and merely fired a warning shot
into the air to respond to a public disturbance, and his firing a warning shot into the air was
intended to avert further acts of violence; both circumstances, therefore, being merely and
solely in pursuance to his avowed duty to keep peace and order in the community and clearly
not to be part of any alleged community of design to kill the victims.
xxxx

Another indication that there was no unity of purpose and of execution in so far as the
Petitioner is concerned is his conduct after Jose Talanquines, Jr. shot the victims. Eyewitness
accounts state that after that lone warning shot, closely followed by Jose Talanquines, Jr. firing
at the victims, the petitioner merely stood there and did nothing and said nothing. This is
obviously because he was himself stunned by the fast happening of events. The investigating
police officer, PO3 NESTOR SANTACERA, on rebuttal, likewise, admitted to the facts that ten
(10) minutes after the incident, they (the police) responded and upon arrival thereat, learned
that the Petitioner already reported the incident to their station and that it was the Petitioner
who first reported the shooting incident officially to their office. The aforedescribed
proven conduct of the Petitioner during and immediately after the incident in question are,
Petitioner respectfully submits, inconsistent with what a co-conspirators is [sic] wont to do
under the circumstances. It is submitted instead that his conduct on the contrary underscores
the lack or want of community of purpose and interest in the killing incident to make him
criminally liable under the conspiracy theory.

Finally, in connection with the conspiracy theory and anent the finding below that the Petitioner
and his Co-Accused waited for the victims' arrival at the corner of St. Domingo and M.H. del
Pilar Streets, it is asserted that the same runs counter to the natural and ordinary experience
of things and event [sic], and raises a cloud of doubt over the correctness of the lower Courts
decision which are based on the Prosecution's version of the incident. Since, according to the
prosecution, the Petitioner and the other Accused were armed with high-powered firearms
(armalite rifles and revolver); they waited at the stated street corner for thirty (30) minutes; the
stated street corner was well lighted; accompanying them were the wife and two (2) young
daughters of Jose Talanquines, Jr; and they stood there conversing with the group of Elston
Saquian [a prosecution witness who testified that he saw the petitioner and his co-accused
waiting for the victims39 and admitting that they were waiting for certain persons who mauled
Edzel Talanquines and Jonathan Bacabac.

In other words, the lower Courts gave credence to an improbable scenario painting the
Petitioner, known to the place as a police officer, and co-accused to have recklessly and
uncaringly displayed, for all and sundry to see, their alleged criminal intentions. It would indeed
be the height of foolishness for them to be by a well lighted street corner, perhaps even well
traversed, conspicuously fully armed, waiting for persons who were not even sure would pass by
such place, and apparently willing to admit to other passers-by that they were indeed waiting
for the persons who mauled Edzel and Jonathan, and consequently give out the impression that
they were intending to retaliate – which is what the lower Courts regrettably observed.

xxxx

Likewise, the presence of the wife and two (2) young daughters of the accused Jose
Talanquines, Jr. at the scene of the alleged crimes, as testified to by the prosecution witnesses
and believed by the lower Courts, assumes importance in the matter of determining which
version of the incident is correct.

The Prosecution places the wife and the daughters with the alleged fully armed Petitioner and
Co-Accused at Sto. Domingo Streets, also waiting during the same length of time as the men for
 the (probable) arrival of the group of the victims. But such a scenario is, likewise, unnatural.
Because, will the male relatives unhesitatingly expose their defenseless womenfolk to
imminent danger?40 (Citations omitted, emphasis in the original, and underscoring supplied)

Petitioner's argument that it is improbable for him and his co-accused to have waited for the victims at a
well-lighted street corner does not persuade. Crimes are known to have been brazenly committed by
perpetrators, undeterred by the presence of onlookers or even of peace officers, completely impervious
of the inevitability of criminal prosecution and conviction.41

From the mode and manner in which the crimes were perpetrated, the conduct of petitioner before,
during, and after their commission,42 and the conditions attendant thereto,43 conspiracy, which need not
be proved by direct evidence, is deduced.44 Petitioner's firing of his armalite could not have amounted
to none other than lending moral assistance to his co-accused, thereby indicating the presence of
conspiracy.45

As the appellate court observed which is quoted with approval:

In the present recourse, when informed that Jonathan and Edzel were being manhandled and
assaulted by male persons, Appellant armed himself with an M-16 armalite. Jose Talanquines,
Jr., the father of Edzel, followed suit and armed himself with an M-16 armalite gun. Jesus armed
himself with a revolver while Jonathan armed himself with a piece of wood. Jonathan and Edzel
were nephews of the Appellant who resided in the house of Jose Talanquines, Jr. All the
Accused including the Appellant then proceeded posthaste to the corner of M.H. del Pilar
corner Sto. Domingo Streets where the culprits would pass by and waited for the advent of
the culprits. Even as Hernani apologized for his and his companions' assault of Edzel and
Jonathan, Jesus berated Hernani and his companions. Almost simultaneously, the Appellant
fired his gun into the air as Jonathan lunged at Hernani and his companions to hit them with
the piece of wood. Almost simultaneously, Jose Talaquines, Jr. fired his gun at Hernani and shot
Eduardo hitting them and, in the process, hitting his nephew, Jonathan Bacabac. The Appellant
did not lift a finger when Jose fired at and shot Hernani and Eduardo. He stood by as Jose shot
Hernani anew when the latter on bended knees, raised his two (2) hands, in surrender. The
Appellant and the other Accused then fled from the scene, with their respective firearms and
weapons. The overt act of the Accused and the Appellant in conjunto, constitute proof of
conspiracy.

The Appellant and Jose were armed with high-powered guns. Jesus was armed with a
revolver. The nature of the weapons of the Accused evinced a common desire to do away with
the culprits, not merely to scare them.

What is outrageous is that the Appellant was a policeman. He could very well have just
arrested the culprits as they sauntered by and brought them to the police station for the
requisite investigation and the institution of criminal complaints, if warranted. He could have
dissuaded Jose and Jesus and assured them that the culprits will be duly investigated and
charged if warranted. The Appellant did not. He armed himself with an M-16 armalite x x x.
[T]he three (3) positioned themselves at the corner of M.H. del Pilar and Sto. Domingo Streets
for the culprits to arrive. Hernani and his companions were doomed. It may be true that the
Appellant did not aim his gun at the deceased but the same is peu de chose. By his overt acts, in
unison with the other Accused and his kinship with Jonathan and Edzel, We are convinced that
 he conspired with Jose Talanquines, Jr. and the other Accused to achieve a common purpose to
kill Hernani and Eduardo.46 (Emphasis and underscoring supplied)

Petitioner's failure to assist the victims after the shooting reinforces this Court's appreciation of
community of design between him and his co-accused to harm the victims. That it was he who first
officially reported the shooting to the police station47 does not make him any less a conspirator.
Voluntary surrender and non-flight do not conclusively prove innocence.48 Besides, a conspirator who
wants to extricate himself from criminal liability usually performs an overt act to dissociate or detach
himself from the unlawful plan to commit the felony while the commission of the felony is in
progress.49 In petitioner's case, he reported the shooting incident after it had already taken place. In
legal contemplation, there was no longer a conspiracy to be repudiated since it had already
materialized.50

Contrary to petitioner's assertion,51 the appellate court did not err in appreciating the presence of
conspiracy despite its finding that there was no evident premeditation. This Court's pronouncement that
conspiracy presupposes the existence of evident premeditation52 does not necessarily imply that the
converse ─ that evident premeditation presupposes the existence of a conspiracy ─ is true. In any event,
a link between conspiracy and evident premeditation is presumed only where the conspiracy is directly
established and not where conspiracy is only implied, as in the present case.53

Neither did the appellate court err in finding the presence of treachery. Treachery, under Article 14,
paragraph 16 of the Revised Penal Code, is present "when the offender commits any of the crimes
against the person, employing means, methods, or forms in the execution thereof which tend directly
and specially to insure its execution, without risk to himself arising from the defense which the offended
party might make."

What is decisive in treachery is that "the attack was executed in such a manner as to make it impossible
for the victim to retaliate."54 In the case at bar, petitioner, a policeman, and his co-accused were armed
with two M-16 armalites and a revolver. The victim and his companions were not armed.55 The attack
was sudden and unexpected,56 and the victim was already kneeling in surrender when he was shot the
second time. Clearly, the victim and his companion Eduardo had no chance to defend themselves or
retaliate.

Petitioner nevertheless argues that he not being the trigger man, it is not logical nor legal to hold him
guilty of treachery.57 This argument falls in the face of the settled doctrine that once conspiracy is
established, the act of one is the act of all even if not all actually hit and killed the victim.58

As for petitioner's invocation of the mitigating circumstance of "immediate vindication of a grave

offense," it fails. For such mitigating circumstance to be credited, the act should be, following Article 13,
paragraph 5 of the Revised Penal Code, "committed in the immediate vindication of a grave offense to
the one committing the felony (delito), his spouse, ascendants, descendants, legitimate, natural or
adopted brothers or sisters, or relatives by affinity within the same degree."59 The offense committed
on Edzel was "hitting" his ear with a stick60 (according to Jesus), a bamboo pole (according to Edzel).61 By
Edzel's own clarification, "[he] was hit at [his] ear, not on [his] head."62 That act would certainly not be
classified as "grave offense." And Edzel is petitioner's nephew, hence, not a relative by affinity "within
the same degree" contemplated in Article 13, paragraph 5 of the Revised Penal Code.
WHEREFORE, the petition is DISMISSED and the appellate court's decision is AFFIRMED.

Costs against petitioner.

SO ORDERED.

11. US v. Hicks, G.R. No. 4971, 23 September 1909

G.R. No. 4971 September 23, 1909

THE UNITED STATES, plaintiff,

vs.
AUGUSTUS HICKS, defendant.

Office of the Solicitor-General Harvey for plaintiff.

Jose Robles Lahesa for defendant.

TORRES, J.:

For about five years, from September, 1902, to November, 1907, Augustus Hicks, an Afro-American, and
Agustina Sola, a Christian Moro woman, illicitly lived together in the municipality of Parang, Cotabato,
Moro Province, until trouble arising between them in the last-mentioned month of 1907, Agustina
quitted Hick's house, and, separation from him, went to live with her brother-in-law, Luis Corrales. A few
days later she contracted new relations with another negro named Wallace Current, a corporal in the
Army who then went to live in the said house.

On the 21st of December following, at about 7:30 p. m., Augustus Hicks together with a soldier named
Lloyd Nickens called at said house, and from the sala called out to his old mistress who was in her room
with Corporal Current, and after conversing with her in the Moro dialect for a few minutes, asked the
corporal to come out of said room; in response thereto the corporal appeared at the door of the room,
and after a short conversation, Current approached Hicks and they shook hands, when Hicks asked him
the following question: "Did I not tell you to leave this woman alone?," to which Current replied: "That is
all right, she told me that she did not want to live with you any longer, but if she wishes, she may quit
me, and you can live with her." The accused then replied: "God damn, I have made up my mind;" and as
Corporal Current saw that Hicks, when, he said this, was drawing a revolver from his trousers' pocket, he
caught him by the hand, but the latter, snatching his hand roughly away, said: "Don't do that,"
whereupon Current jumped into the room, hiding himself behind the partition, just as Hicks drew his
revolver and fired at Agustina Sola who was close by in the sala of the house. The bullet struck her in the
left side of the breast; she fell to the ground, and died in a little more than an hour later.

Upon hearing the shot Edward Robinson, who was also in the house, went to render assistance and
wrested the weapon from the hand of the accused. The latter immediately fled from the house and gave
himself up to the chief of police of the town, H. L. Martin, asking him to lock him up in jail; and, when a
few minutes later a policeman came running in and reported that Hicks had fired a shot at Agustina, the
said chief of police caused Hicks to be arrested. The latter, when once in jail, threw eight revolver
cartridges out of the window; these were picked up by a policeman who reported the occurrence and
delivered the cartridges to his chief.

In view of the foregoing the provincial fiscal on the 8th of February, 1908, filed a complaint with the
Court of First Instance of said province charging Augustus Hicks with the crime of murder. Proceedings
were instituted, the trial court, after hearing the evidence adduced, entered judgment on the 10th of
September of the same year, sentencing the accused to the penalty of death, to be executed according
to the law, to indemnify the heirs of the deceased in the sum of P1,000, and to pay the costs. The case
has been submitted to this court for review.

The above-stated facts, which have been fully proven in the present case, constitute the crime of
murder, defined and punished by article 403 of the Penal Code, in that the woman Agustina Sola met a
violent death, with the qualifying circumstance of treachery (alevosia), she being suddenly and roughly
attacked and unexpectedly fired upon with a 45-caliber revolver, at close, if not point blank range, while
the injured woman was unarmed and unprepared, and at a time when she was listening to a
conversation, in which she was concerned, between her aggressor and third person, and after usual and
customary words had passed between her and her aggressor. From all of the foregoing it is logically
inferred that means, manners, and forms were employed in attack that directly and specially insured the
consummation of the crime without such risk to the author thereof as might have been offered by the
victim who, owing to the suddenness of the attack, was doubtless unable to flee from the place where
she was standing, or even escape or divert the weapon.

The accused, Augustus Hicks, pleaded not guilty, but notwithstanding his exculpatory allegations which
were certainly not borne out at the trial, the evidence in the case is absolutely at variance therewith and
conclusively establishes, beyond peradventure of doubt, his culpability as the sole fully convicted author
of the violent and treacherous death of his former mistress, Agustina Sola.

It is alleged by the accused that when he withdrew his hand from that of Current, who had seized him,
he fell backward but managed to support himself on his two hands, and when he got up again the said
corporal threatened him with a revolver thrust into his face; whereupon he also drew his revolver, just
as Edward Robinson caught him from behind, when his revolver went off, the bullet striking the
deceased.

This allegation appears to be at variance with the testimony of the witnesses Wallace Current, Edward
Robinson, Luis Corrales, and Lloyd Nickens in their respective declaration, especially with that of the
second and third, who witnessed the actual firing of the shot by the aggressor at the deceased, as
shown by the fact that Robinson immediately approached the accused in order to take his weapon away
from him which he succeeded in doing after a brief struggle, whereupon the aggressor ran out of the
house. Thus, the shot that struck the deceased in the breast and caused her death was not due to an
accident but to a willful and premeditated act on the part of the aggressor with intent to deprive the
victim of her life.

In addition to the qualifying circumstance of treachery, as above referred to, the presence of other
aggravating circumstances, such as premeditation, and the fact that the crime was committed in the
dwelling of the deceased should be taken into consideration. The last-mentioned circumstances appears
proven from the testimony of several witnesses who were examined at the trial of the case.
Inasmuch as in the present case the crime has already been qualified as committed with treachery, the
circumstance of premeditation should only be considered as a merely generic one. Premeditation is,
however, manifest and evident by reason of the open acts executed by the accused. According to the
testimony of Charles Gatchery and Eugenio R. Whited, Hicks asked leave from the former to be absent
from the canteen where he was working on the morning of the day when the affray occurred, alleging
that his mind was unsettled and that he feared getting into trouble. It is also shown by the fact that
Whited, who was in Hicks' house about noon upon the latter's invitation, and while both where drinking
gin, and while the revolver, the instrument of the crime, was lying on the table on which were also
several loaded cartridges, heard the accused repeatedly say, referring to the deceased, that her time
had come, adding that he would rather see her dead than in the arms of another man, and when the
accused went to bed apparently very much worried, and refusing to answer when called, the witness
left him. On the day after the crime the police found on a table in the cuprit's house several loaded
cartridges, a bottle of oil and a piece of cloth used undoubtedly for cleaning the revolver.

All the foregoing circumstances conclusively prove that the accused, deliberately and after due
reflection had resolved to kill the woman who had left him for another man, and in order to accomplish
his perverse intention with safety, notwithstanding the fact that he was already provided with a clean
and well-prepared weapon and carried other loaded cartridges besides those already in his revolver, he
entered the house, greeting everyone courteously and conversed with his victim, in what appeared to
be a proper manner, disguising his intention and claiming her by his apparent repose and tranquility,
doubtless in order to successfully accomplish his criminal design, behaving himself properly as he had
planed to do beforehand.

As against the two foregoing aggravating circumstances no mitigating circumstances is present, not even
that mentioned in paragraph 7 of article 9 of the Penal Code, to wit loss of reason and self-control
produced by jealousy as alleged by the defense, inasmuch as the only causes which mitigate the criminal
responsibility for the loss of self-control are such as originate from legitimate feelings, not those which
arise from vicious, unworthy, and immoral passions.

From the foregoing considerations, and as the judgment appealed from is in accordance with the law, it
is our opinion that the same should be affirmed, as we do hereby affirm it with costs, provided,
however, that the death penalty shall be executed according to the law in force, and that in the event of
a pardon being granted, the culprit shall suffer the accessory penalties of article 53 of the Penal Code
unless the same be expressly remitted in the pardon. So ordered.

12. US v. Dela Cruz, G.R. No. 7094, 29 March 1912

G.R. No. L-7094 March 29, 1912

THE UNITED STATES, plaintiff-appellee,

vs.
HILARIO DE LA CRUZ, defendant-appellant.
F.C. Fisher for appellant.
Acting Attorney-General Harvey for appellee.

CARSON, J.:

The guilt of the defendant and appellant of the crime of homicide of which he was convicted in the court
below is conclusively established by the evidenced of record.

The trial court was of opinion that its commission was not marked by either aggravating or extenuating
circumstances, and sentenced the convict to fourteen years eight months and one day of reclusion
temporal, the medium degree of the penalty prescribed by the code. Burt we are of opinion that the
extenuating circumstance set out in subsection 7 of article 9 should have been taken into consideration,
and that the prescribed penalty should have been imposed in its minimum degree. Subsection 7 of
article 9 is as follows:

The following are extenuating circumstances:

xxx xxx xxx

That of having acted upon an impulse so powerful as naturally to have produced passion and
obfuscation.

The evidence clearly discloses that the convict, in the heat of passion, killed the deceased, who had
theretofore been his querida (concubine or lover) upon discovering her in flagrante in carnal
communication with a mutual acquaintance. We think that under the circumstances the convict was
entitled to have this fact taken into consideration in extenuation of his offense under the provisions of
the above-cited article.

This was the view taken by the Court of Spain upon a similar state of facts as set forth in its sentence of
July 4, 1892, which is summarized by Viada (p. 69, in question 19, art. 9 of vol. 6) as follows:

Shall he who kills a woman with whom he is living in concubinage for having caught her in her
underclothes with another party and afterwards shoots himself, inflicting a serious wound, be
responsible for that crime with the extenuating circumstance of having acted with violent
passion and obfuscation? The Audiencia of Santiago de Cuba did not so hold and its judgment
was reversed by the supreme court for the improper disregard of article 9, number 8, of the
Penal Code for Cuba and Puerto Rico: "The facts held to be true by the trial court, and which
were the immediate cause of the crime by producing in the accused strong emotion which
impelled him to the criminal act and even to attempt his own life, were a sufficient impulse in
the natural and ordinary course to produce the violent passion and obfuscation which the law
regards as a special reason for extenuation, and as the judgment did not take into consideration
the 8th circumstance of article 9 of the code, the Audiencia rendering it seems to have violated
this legal provision."

It is true that in the case of U.S. vs. Hicks (14 Phil. Rep.., 217), we held that the "causes which mitigate
the criminal responsibility for the loss of self-control are such as originate from legitimate feelings, not
those which arise from vicious, unworthy, and immoral passions," and declined to give the benefit of the
provisions of this article to the convict in that case on the ground that the alleged causes for his loss of
self-control did not "originate from legitimate feelings." But in that case we found as facts that:

All the foregoing circumstances conclusively prove that the accused, deliberately and after due
reflection had resolved to kill the woman who had left him for another man, and in order to
accomplish his perverse intention with safety, notwithstanding the fact that he was already
provided with a clean and well-prepared weapon and carried other loaded cartridges besides
those already in his revolver, he entered the house, greeting everyone courteously and
conversed with his victim, in what appeared to be in a proper manner, disguising his intention
and calming her by his apparent repose and tranquility, doubtless in order to successfully
accomplish his criminal design, behaving himself properly as he had planned to do beforehand.

In the former case the cause alleged "passion and obfuscation" of the aggressor was the convict's
vexation, disappointment and deliberate anger engendered by the refusal of the woman to continue to
live in illicit relations with him, which she had a perfect right to do; his reason for killing her being merely
that he had elected to leave him and with his full knowledge to go and live with another man. In the
present case however, the impulse upon which defendant acted and which naturally "produced passion
and obfuscation" was not that the woman declined to have illicit relations with him, but the sudden
revelation that she was untrue to him, and his discovery of her in flagrante in the arms of another. As
said by the supreme court of Spain in the above-cited decision, this was a "sufficient impulse" in the
ordinary and natural course of things to produce the passion and obfuscation which the law declares to
be one of the extenuating circumstances to be taken into consideration by the court.

Modified by a finding that the commission of the crime was marked with the extenuating circumstance
set out in subsection 7 of article 9, and by the reduction of the penalty of fourteen years eight months
and one day of reclusion temporal to twelve years and one day of reclusion temporal, the judgment of
conviction and the sentence imposed by the trial court should be and are hereby affirmed, with the
costs of this instance against the appellant.

Arellano, C.J., Torres, Johnson and Trent, JJ., concur.

13. People v. Gelaver, G.R. No. 95357, 9 June 1993

[G.R. No. 95357. June 9, 1993.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. EDUARDO GELAVER, Accused-Appellant.

The Solicitor General for Plaintiff-Appellee.

Joffrey L. Montefrio for Accused-Appellant.

DECISION
QUIASON, J.:

This is an appeal from the decision of the Regional Trial Court, Branch 26, Surallah, South Cotabato,
finding Eduardo Gelaver guilty beyond reasonable doubt of Parricide (Art. 246, Revised Penal Code) and
sentencing him to "suffer the penalty to reclusion perpetua and to indemnify the heirs of his wife,
Victoria Pacinabao, in the amount of P30,000.00." (Decision, p. 7; Rollo, p. 28).

In the Information filed with the trial court and docketed as Criminal Case No. 643, Eduardo Gelaver,
was charged with Parricide, committed as follows:

"That on or about the 24th day of March, 1988 at 7:00 o’clock in the morning, more or less, in Barangay
Poblacion, Municipality of Sto. Niño, Province of South Cotabato, Philippines, and within the jurisdiction
of this Honorable Court, said accused with intent to kill and being then armed with a knife did then and
there wilfully, unlawfully and feloniously attack, assault and stab one VICTORIA GELAVER Y PACINABAO,
his lawfully wedded wife, with the use of the said knife hitting her and wounding her on the different
parts of her body and as a result thereof said Victoria Gelaver y Pacinabao died instantly." (Rollo, p. 7).

At his arraignment, appellant entered a plea of "not guilty", and thereafter trial on the merits ensued.

The prosecution presented Randy Mamon, who testified that at 7:00 a.m. of March 24, 1988, he heard
shouts coming from the house of Tessie Lampedario in Barangay Poblacion, Municipality of Sto. Niño,
South Cotabato. He saw the appellant and a woman having a heated argument. Thereafter, appellant
held the neck of the victim, dragged her and with a knife on his right hand, stabbed the latter three
times on the breast. Appellant then went out of the gate and fled in the direction of the public market of
Sto. Niño. (TSN, June 27, 1988, pp. 7-10).

Eduardo Gelaver admitted killing his wife but claimed that he did so after catching her having carnal act
with her paramour.

Appellant testified that he was married to Victoria Pacinabao, with whom he begot four children. (TSN,
December 19, 1988, p. 9) They lived together at their conjugal home until July 3, 1987 when she
abandoned her family to live with her paramour. (TSN, December 19, 1988, pp. 10-11) He did not know
the name of his wife’s paramour nor the name of the owner of the house where his wife and her
paramour had lived together.

Appellant further testified that on March 24, 1988, after he was informed by his daughter that his wife
and paramour were living at a house in front of the Sto. Niño Catholic Church, appellant immediately
repaired to that place. Upon entering the house, he saw his wife lying on her back and her paramour on
top of her, having sexual intercourse.

Appellant’s version of the killing was that when his wife saw him, she pushed her paramour aside. Her
paramour immediately stood up, took a knife placed on top of the bedside table and attacked appellant.
The latter was able to wrest possession of the knife and then used it against the paramour, who evaded
the thrusts of the appellant by hiding behind the victim. Thus, it was the victim who received the stab
intended for the paramour.

As to why he continued to stab his wife, appellant said that his mind had been "dimmed" or
overpowered by passion and obfuscation by the sight of his wife having carnal act with her paramour.

Appellant faults the trial court in imposing the penalty of reclusion perpetua for the crime of parricide,
instead of the penalty of destierro for killing under exceptional circumstances pursuant to Article 247 of
the Revised Penal Code. (Appellant’s Brief, p. 1).
Appellant’s contention is bereft of merit.

Before Article 247 of the Revised Penal Code can be operative, the following requisites must be
compresent:

"1. That a legally married person or a parent surprises his spouse or his daughter, the latter under 18
years of age and living with him, in the act of committing sexual intercourse with another person.

"2. That he or she kills any or both of them or inflicts upon any or both of them any serious physical
injury in the act or immediately thereafter.

"3. That he has not promoted or facilitated that prostitution of his wife or daughter, or that he or she
has not consented to the infidelity of the other spouse." (II Reyes, The Revised Penal Code, 12th Ed., pp.
452-453; Emphasis supplied).

These requisites must be established by the defense.

Implicit in this exceptional circumstance is that the death caused must be the proximate result of the
outrage overwhelming the accused after chancing upon his spouse in the act of infidelity (People v.
Abarca, 153 SCRA 735 [1987]). In this case, appellant wants this Court to believe that he caught his wife
and her paramour in sexual intercourse. However, his testimony is tainted with inconsistencies which
leads Us to believe otherwise.

Appellant’s failure to inform the police that he killed his wife when he saw her having sexual intercourse
with her paramour, devastated in one fell swoop whatever credibility could possibly be accorded to his
version of the incident. As noted by the Solicitor General, the natural thing for a person to do under the
circumstances was to report to the police the reason for killing his wife. (Appellee’s Brief, p. 8; Rollo, p.
76) Appellant’s contention that he thought that only the killing itself should be blottered, reserving the
details to the defense lawyer, sounded like a spoonfed afterthought.

If there was a naked man with the victim, he would have had no time to get dressed because he was
then under attack by appellant. There would then have been the spectacle of a man in the nude running
in the streets.

The trial court noted several contradictions in appellant’s testimony. Appellant claimed that he chased
the paramour but was unable to overtake him and at the same time, he testified that the paramour
stayed in the room and used the victim as a shield against appellant’s attack with the knife. Appellant
also claimed that upon entering the gate of the fence, he saw his wife and her paramour having carnal
act and at the same breath, he testified that he saw his wife and her paramour only when he opened the
main door of the house.

The trial court found as contrary to human nature appellant’s claims that he went to confront the
paramour of his wife unarmed and that he never learned the name of the paramour inspite of the fact
that his wife, allegedly, had been living with the paramour in the same town for almost a year before the
incident.

Absent any substantial proof that the trial court’s decision was based on speculation, the same must be
accorded full consideration (People v. Martinada, 194 SCRA 36 [1991] and should not be disturbed on
appeal (Mercury Drug v. CIR, 56 SCRA 694 [1974]).

Appellant’s claim that on the day prior to his killing of the victim, his daughter Sheryl had confided to
him that her mother was living with a paramour at the house in front of the Sto. Niño Catholic Church,
was belied by Sheryl herself. In her testimony, she stated that she did not know the house where the
crime was committed and she had not gone to that place. She further testified that she had not seen her
mother in any other house except that of her grandfather’s. (TSN, January 17, 1989, p. 5).

The trial court was correct in finding the presence of the mitigating circumstance of voluntary surrender
to the authorities. Appellant, immediately after committing the offense, voluntarily placed himself at the
disposal of the police authorities as evidenced by the entry in the official police blotter. (Exh. "1").

However, the trial court erred in finding the presence of the mitigating circumstance of passion or
obfuscation "as a result of his (appellant’s) wife leaving their home and their children." (Rollo, p. 28)
Before this circumstance may be taken into consideration, it is necessary to establish the existence of an
unlawful act sufficient to produce such a condition of mind. The act producing the obfuscation must not
be far removed from the commission of the crime by a considerable length of time, during which the
accused might have recovered his equanimity. (I Revised Penal Code, Aquino, 1987 ed., p. 267) The
crime was committed almost a year after the victim had abandoned the conjugal dwelling.

WHEREFORE, the judgment appealed from is AFFIRMED except with the MODIFICATION that the
indemnity, should be increased to P50,000.00 (People v. Sison, 189 SCRA 700 [1990]).

SO ORDERED.

14. People v. Bello, G.R. No. L-18792, 28 February 1964

[G.R. No. L-18792. February 28, 1964.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. GUILLERMO BELLO, Defendant-Appellant.

Solicitor General for Plaintiff-Appellee.

Ferdinand E. Marcos, for Defendant-Appellant.

DECISION
REYES, J.B.L., J.:

Appeal from a judgment of the Court of First Instance of Quezon in its Criminal Case No. 592-G, for
murder.

The information filed against the accused alleged four (4) aggravating circumstances, namely: treachery,
evident premeditation, night-time, and superior strength. The trial court made a finding of "treachery,
evident premeditation and in cold blood and without any provocation" ; however, the dispositive
portion of the appealed decision states as follows:

". . . the Court finds the accused Guillermo Bello guilty beyond reasonable doubt of the crime of murder
defined and punished by Article 248 of the Revised Penal Code with the aggravating circumstances of (1)
night time, (2) abuse of confidence and obvious ungratefulness (3) superior strength off-set only by his
surrender to the authorities and hereby sentences him to DIE by electrocution in the manner provided
by law ordering his heirs, after his death, to indemnify the heirs of the deceased Alicia Cervantes in the
sum of P3,000.00, with costs."

The record bears out, the Office of the Solicitor-General does not challenge, and the counsel de officio
agrees with, and adopts, the following findings of fact of the trial court:

"From the evidence adduced at the hearing of the case, it has been established to the satisfaction of the
Court (1) that on September 17, 1954 the accused Guillermo Bello, a widower, who at that time was
about 54 years of age, took a young peasant lady named Alicia Cervantes, about 24 years old, as his
common-law wife; (2) that from that day they lived together apparently in blissful harmony as man and
wife without the benefit of marriage bearing, however no child. . . .; (3) that on May 15, 1958, the
accused who had no means of substantial livelihood except that of making "kaingin" and who apparently
was then in financial straits induced Alicia Cervantes to accent an employment as entertainer in a bar
and restaurant establishment known as Maring’s Place situated at the corner of Aguinaldo and Bonifacio
Streets, Gumaca, Quezon; (4) that Alicia Cervantes entered the service of Maring’s Place on that day as a
public hostess; (5) that the accused being infatuated with his young bride used to watch her movements
in Maring’s Place everyday; (6) that on May 15 he saw Alicia enter the Gumaca theater in Gumaca with a
man whom the accused found later was caressing his common-law wife inside the movie house; (7) that
being in love with her he took her out from the movie house and warned her to be more discreet in her
personal conduct in Gumaca; (8) that Alicia Cervantes continued to serve at Maring’s Place as a public
hostess; (9) that on May 20, 1958, at 3:00 p.m. the accused went to Maring’s Place to ask for some
money from Alicia; (10) that Maring, the owner of the Place, and Alicia refused to give money, Maring
telling him to forget Alicia completely because he was already an old man, an invalid besides and should
stop bothering Alicia; (11) that having failed to obtain financial assistance from his paramour, the
accused left the place somewhat despondent and went home passing Bonifacio Street; (12) that on his
way home he met the brothers Justo Marasigan and Luis Marasigan who greeted the accused, Luis
saying to his brother Justo the following: ‘So this is the man whose wife is being used by Maring for
white slave trade’; (13) that these remarks of Luis Marasigan naturally brought grief to the accused, to
drown which he sought Paty’s place in Gumaca where he drank 5 glasses of tuba; (14) that from Paty’s
place he went to Realistic Studio which is in front of Maring’s Place and from there watched the
movements of Alicia; (15) that at about 9:00 o’clock that night he entered Maring’s Place and without
much ado held Alicia from behind with his left hand in the manner of a boa strangulating its prey and
with his right hand stabbed Alicia several times with a balisong; (16) that seeing Alicia fallen on the
ground and believing her to be mortally wounded, he fled and went to the municipal building and there
surrendered himself to the police of Gumaca.."

Both the prosecution and the defense also agree that the crime committed is not murder but only
homicide, but they disagree in the qualifying or aggravating and mitigating circumstances. The
prosecution holds that the crime is homicide, aggravated by abuse of superior strength, but off-set by
voluntary surrender. On the other hand, the defense maintains that the accused is entitled to the
additional mitigating circumstance of passion and obfuscation. The trial court held a different
conclusion, as earlier stated.

While it cannot be denied that Alicia was stabbed at the back, the wound was but a part and
continuation of the aggression. The four (4) stab wounds (the 3 others were in the breast, hypogastric
region, and in the left wrist — as shown in the certificate of the Municipal Health Officer) were inflicted
indiscriminately, without regard as to which portion of her body was the subject of attack. The trial
court itself found that the stab in the back was inflicted as Alicia was running away. For this reason,
treachery cannot be imputed (Peo. v. Cañete, 44 Phil. 478).

Evident premeditation was, likewise, not established. The accused had been carrying a balisong with him
for a long time as a precaution against drunkards, and without any present plan or intent to use it
against his common-law wife. That he watched her movements daily manifested his jealous character,
but there is no evidence that from this jealousy sprouted a plan to snuff out her life.

The evidence does not show, either, any superior strength on the part of the accused, and, not
possessing it, he could not take advantage of it. True that he was armed with a balisong, but he was old
and baldado (invalid), while Alicia was in the prime of her youth, and not infirm. The facts are not
sufficient to draw a comparison of their relative strength. Possession of a balisong gives an aggressor a
formidable advantage over the unarmed victim, but the physique of the aggressor ought also to be
considered. At any rate, taking into account the emotional excitement of the accused, it is not clearly
shown that there was "intencion deliberada de prevalerse de la superioridad o aprovecharse
intencionadamente de la misma" (Sent. TS. 5 Oct. 1906), i.e., deliberate intent to take advantage of
superior strength.

The crime was committed at night-time, but the accused did not seek or take advantage of it the better
to accomplish his purpose. In fact, Maring’s Place was bright and well-lighted; hence, the circumstance
did not aggravate the crime. (U.S. v. Ramos, Et Al., 2 Phil. 434; U. S. v. Bonete, 40 Phil. 958)

We can not understand how the trial court came to couple the crime with the aggravating circumstance
of abuse of confidence and obvious ungratefulness. There is nothing to show that the assailant and his
common-law wife reposed in one another any special confidence that could be abused, or any gratitude
owed by one to the other that ought to be respected, and which would bear any relation, or connection,
with the crime committed. None is inferable from the fact that the accused was much older than his
victim, or that he was penniless while she was able to earn a living and occasionally gave him money,
since both lived together as husband and wife. Neither is it shown that the accused took advantage of
any such special confidence in order to carry out the crime.

Since the aggravating circumstances of treachery, evident premeditation, and abuse of superior
strength, which could have qualified the crime as murder, were not present, and since the generic
aggravating circumstances of night-time and abuse of confidence and obvious ungratefulness have not
been established, the accused can only be liable for homicide.

Both defense and prosecution agree that accused-appellant is entitled to the benefit of the mitigating
circumstance of voluntary surrender to the authorities. The remaining area of conflict is reduced to
whether the accused may lay claim to a second mitigating circumstance, that of having acted on a
provocation sufficiently strong to cause passion and obfuscation. The defense submits that accused is so
entitled, because the deceased’s flat rejection of petitioner’s entreaties for her to quit her calling as a
hostess and return to their former relation, aggravated by her sneering statement that the accused was
penniless and invalid (baldado), provoked the appellant, as he testified, into losing his head and stabbing
the deceased. The state disputes the claim primarily on the strength of the rule that passion and
obfuscation can not be considered when "arising from vicious, unworthy and immoral passions" (U.S. v.
Hicks, 14 Phil. 217).
We are inclined to agree with the defense, having due regard to the circumstances disclosed by the
record. It will be recalled that the lower court found that the accused had previously reproved the
deceased for allowing herself to be caressed by a stranger. Her loose conduct was forcibly driven home
to the accused by Marasigan’s remark on the very day of the crime that the accused was the husband
"whose wife was being used by Maring for purposes of prostitution", a remark that so deeply wounded
the appellant’s feelings that he was driven to consume a large amount of wine (tuba) before visiting
Alicia (the deceased) to plead with her to leave her work. Alicia’s insulting refusal to renew her liaison
with the accused, therefore, was not motivated by any desire to lead a chaste life henceforth, but
showed her determination to pursue a lucrative profession that permitted her to distribute her favors
indiscriminately. We can not see how the accused’s insistence that she live with him again, and his rage
at her rejection of the proposal, can be properly qualified as arising from immoral and unworthy
passions. Even without benefit of wedlock, a monogamous liaison appears morally of a higher level than
gainful promiscuity.

WHEREFORE, the appealed decision should be, and hereby is, modified. This Court finds the accused-
appellant, Guillermo Bello, guilty beyond reasonable doubt of the crime of homicide, attended by two
(2) mitigating circumstances: (a) passion and obfuscation, and (b) voluntary surrender; and, therefore,
imposes upon him an indeterminate sentence ranging from a minimum of six (6) years and one (1) day
of prision mayor to a maximum of ten (10) years of prisión mayor; orders him also to personally
indemnify the heirs of Alicia Cervantes in the amount of P6,000.00, and to pay the costs. So ordered.

15. People v. Amaguin, G.R. Nos. 54344-45, 10 January 1994

G.R. Nos. 54344-45 January 10, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
WILLIE AMAGUIN, GILDO AMAGUIN AND CELSO AMAGUIN, accused.

WILLIE AMAGUIN AND GILDO AMAGUIN, accused-appellants.

The Solicitor General for plaintiff-appellee.

Sixto P. Demaisip for accused-appellants.

BELLOSILLO, J.:

The coup de main on the Oro brood sent two brothers to the mortuary and a third to medical care. The
bloodbath resulted in the brothers Willie, Gildo and Celso, all surnamed Amaguin, being charged with
the murder of the Oro brothers Pacifico and Diosdado. Willie and Gildo went through trial while Celso to
this date remains a fugitive.
The culpability of the Amaguin brothers was recounted by Hernando Oro, a younger brother of Pacifico
and Diosdado. Hernando narrated that in the afternoon of 24 May 1977, he and his brothers Diosdado
and Danilo, brother-in-law Rafael Candelaria, an first cousin Sergio Argonzola were invited by their
eldest brother Pacifico to the latter's house in the interior of Divinagracia Street, La Paz, Iloilo City, for a
small gathering to celebrate the town fiesta.1 At about five o'clock in the afternoon, after partaking of
the meager preparations put together by Pacifico, he (Hernando) and his companions decided to leave.
They were accompanied by their host to the plaza where they could get a ride.

On their way, while traversing Divinagracia Street, Pacifico was called by accused Celso Amaguin : "Pare,
come here." But Pacifico answered : "Pare, not yet because I have to conduct my guests first."
Immediately, Celso, with a butcher's knife in hand, rushed towards Pacifico. Gildo, Celso's younger
brother, with a knife tucked to his waist, followed with a slingshot known as "Indian pana" or "Indian
target". While Gildo aimed the dart from his slingshot at Danilo, which hit the latter on the chest, Celso
hacked Pacifico. Gildo then stabbed Diosdado with a knife. Thereafter, Willie, the eldest of the Amaguin
brothers, appeared with a handgun and successively shot the brothers Pacifico, Diosdado and the
fleeing Danilo. Diosdado, own kneeling, gasping for breath and pleading for his life, was again shot by
Willie who next fired anew at Pacifico. Meanwhile, Gildo and Celso repeatedly stabbed Pacifico who
already lying prostrate and defenseless.2

Danilo Oro, the youngest of the Oros, likewise testified. He said that at around five o'clock in the
afternoon of 24 May 1977, while walking along Divinagracia Street on their way to the plaza for ride
home with his three brothers and two others, they were waylaid by Celso, Willie and Gildo, their cousin
Danny, all surnamed Amaguin, and several others. Celso placed an arm on the shoulder of Pacifico and
stabbed him with a knife.3 Then there was a clash between the two groups. In a split second, he (Danilo)
was hit on the left chest by a dart from the slingshot of Gildo whom he saw aiming at him. He (Danilo)
pulled the dart from his chest and ran away but was hit on the lips by a bullet. Then he was pushed by
Hernando to seek cover.4

Rafael Candelaria, a brother-in-law of the Oros, also took the witness stand. His version was that while
he, his brothers-in-law and one Sergio Argonzola were walking along Divinagracia Street that afternoon,
two men approached them. Without any provocation, one suddenly stabbed him. After being hit on the
left arm, he immediately fled to the plaza where he flagged down a passing cab to take him to the
hospital. He did not see what happened next to his companions.5

The defense however maintains that it was the Oro brothers who started the fight. Accused Gildo
Amaguin recounted that on 24 May 1977, at about five o'clock in the afternoon, Pacifico with five others
went to their house in Divinagracia Street, La Paz, Iloilo City, and approached his brother Celso, who was
waiting for his wife at the foot of the stairs. While Pacifico was talking to Celso, a companion of Pacifico
came forward, held Celso by the shoulder and said : "This is the bravest man in Divinagracia Street, the
Amaguin." Meanwhile, another companion of Pacifico gave Celso a flying kick that sent him reeling.
Gildo then went down the house shouting : "Don't fight." However, the attackers drew their knives and
slingshots. In return, Celso pulled out his knife. Since one of the companions of Pacifico lunged at him,
Gildo retreated to the other side of the road and threw stones at his attackers.

Meanwhile, he saw his cousin Danny hit Danilo Oro with a dart from a slingshot. But later Danny himself
was stabbed from behind by one of Pacifico's companions. Then Ernie Ortigas, a guest of Celso, emerged
from the Amaguin residence holding a revolver. Ernie initially fired three warning shots, after which he
successively shot Pacifico and a person who tried to stab the former as well as an identified companion
of Pacifico. Later, both Ernie Ortigas and Celso Amaguin escaped towards the railway tracks.6 The
following day, he was brought by his uncle to the PC authorities in Fort San Pedro for "safe-keeping" and
turned over to the local police after a week.

The story of Gildo was confirmed by Vicente Belicano7 and Nilda Tagnong,8 long-time residents of
Divinagracia Street, and Nenita Amaguin, mother of the accused brothers, who even affirmed that her
son Celso was indeed troublesome,9 but added that Willie "never had any brush with the
law." 10

On his part, Willie related that he was in the house of his uncle along Divinagracia Street that afternoon
drinking with some friends. He left the group after hearing some explosions coming from the direction
of his mother's house and then seeing his cousin Danny, with a stab wound at the back, being taken by
two policemen, and his wounded brother Gildo running towards the plaza. Thus, he went to his
mother's residence to find out what happened. But when he got there, the incident had already ended.
As a consequence, he was told by his mother to look for his two brothers who were wounded in the
fight and to take them to the hospital.11 He turned himself in after five days, upon learning that law
enforcers were looking for him.

Ulpiano Vencer, Rogelio de la Paz and Pat Jereos all confirmed that accused Willie only left their
gathering after the explosions were heard, and only after seeing his wounded brother Gildo and his
cousin Danny, who was in the company of two policemen, pass by.

Perla Belleza, a vegetable vendor in the La Paz Public Market, also testified that after hearing six
explosions, she saw an unidentified man with a revolver running away from the scene of the crime,
followed by accused Celso who was holding a knife. She was certain that the unidentified man was not
accused Willie as the latter was very well known to her, she being a former neighbor of the Amaguins. 12

Dr. Tito Doromal, Asst. Medico-Legal Officer, Iloilo Metropolitan District Command, INP, conducted an
autopsy on Pacifico and Diosdado. He declared that out of the 15 stab wounds and one gunshot wound
Pacifico sustained, five of the stab wounds were fatal. With regard to Diosdado, four (4) stab wounds,
out of the ten (10), and the lone bullet he had sustained were considered fatal. 13

After a joint trial, and finding the version of the prosecution to be more credible, the then Court of First
Instance of Iloilo, Br. II, 14 found the accused Gildo Amaguin, also known as "Tigib," guilty beyond
reasonable doubt of the crime of Murder, and . . . sentenced (him) to Reclusion Perpetua, both in
Criminal Cases Nos. 8041 and 8042, together with all the accessory penalties, and to pay the costs."

As regards Willie Amaguin alias "Tikboy," the trial court found him guilty "as accomplice in both Criminal
Cases 8041 and 8042, and . . . sentenced (him) to an indeterminate penalty of Seventeen (17) Years,
Four (4) Months, and One (1) Day to Twenty (20) Years each in said cases together with all the accessory
penalties, and to pay the costs."

Both accused were "further sentenced to indemnify the heirs of the late Pacifico Oro and Diosdado Oro,
jointly and severally in the total sum of P24,000.00 as death compensation; P20,000.00 (as) moral
damages; P10,000.00 (as) exemplary damages; and P5,000.00 for burial expenses, in both Criminal cases
nos. 8041 and 8042."
In this appeal, accused Willie Amaguin and Gildo Amaguin claim that the court a quo erred: (a) in
categorizing the offense/s as murder; (b) in finding Willie Amaguin to be the person involved in the
incident; (c) in holding that there was conspiracy between the brothers Gildo and Celso Amaguin (the
latter is at large); (d) in finding Gildo Amaguin to be armed with a knife and an Indian target when he
was only armed with stones; and, (e) even assuming the accused to be guilty, in not holding them
responsible for their individual acts, and in not appreciating the mitigating circumstance of voluntary
surrender. 15

Before disposing of the other issues raised by appellants, we resolve the second and fourth assigned
errors first to determine which of the two conflicting versions of the incident deserves credence. Their
resolution rests upon the credibility of the witnesses who have come forward, a matter addressed to the
sound judgment of the trial court which is in a better position to decide them, it having heard the
witnesses and observed their deportment and manner of testifying during the trial. Consequently, the
assessment of the trial judge is usually received with respect, if not conclusiveness, on appeal unless
there is a showing of arbitrariness. Always, this has been the familiar rule. 16

In the instant case, the trial court has accepted as credible the testimonies of Hernando and Danilo Oro
who positively identified accused Celso and Gildo Amaguin as having started the assault on the Oro
brothers with the use of a knife and an "Indian pana," and accused Willie Amaguin as the gunwielder
who shot the brothers Pacifico, Diosdado and Danilo during the fray. We see no reason to disregard the
assessment. We simply cannot set aside the factual findings of the trial court absent any showing of
capriciousness on its part.

The defense belittles the testimony of Hernando Oro pointing to accused Willie Amaguin as the gunman
as it stands "singly and alone," in contrast to the declaration of the defense witnesses exonerating Willie
and Gildo. While the defense may have presented a number of witnesses who, as the trial court puts it,
"virtually 'sang' in a chorus that the killers (Celso and Danny Amaguin and a certain Ernie Ortigas) not
the two accused herein (Willie and Gildo
Amaguin)," 17 still the trial judge had the opportunity, as well as the right and responsibility, to assess
their credibility — just like all other witnesses. After all, there is no law which requires that the
testimony of a single witness needs corroboration except when the law so expressly requires. As it is
often said, witnesses are to be weighed, not numbered. If credible and positive, the testimony of a
single witness is sufficient to convict. 18 Indeed the determination of the credibility of witnesses is the
trial court's domain, hence, we respect its factual findings.

For, even the respective defenses of the accused, i.e., accused Willie Amaguin's alibi that he did not
participate in the fray and that he was in the nearby house of his uncle drinking with his friends, and
accused Gildo Amaguin's denial that he was unarmed but later forced to hurl stones to defend himself,
are without sound basis. Alibi is one of the weakest defenses that can be resorted to especially where
there is direct testimony of an eyewitness, not only because it is inherently weak and unreliable but also
because of the ease of its fabrication and the difficulty of checking and rebutting it.19 Besides, alibi to be
believed must be supported by the physical impossibility of the accused to have been at the scene of the
crime. 20 And as in an alibi, a denial, if unsubstantiated by clear and convincing evidence, is a negative
and self-serving evidence which deserves no weight in law and cannot be given greater evidentiary value
over the testimony of credible witnesses who testify on affirmative matters.21 Thus, as between a mere
denial of the accused and the positive identification and detailed declarations of the prosecution
witnesses, the trial court committed no error in according heavier weight to the latter. 22
Hence, this version of the prosecution prevails: Celso and Gildo, together with others, attacked the Oros.
During the fray, Gildo was armed with a knife and an "Indian target." And just as they were about to
finish off the Oro brothers, Willie, the eldest of the Amaguins, appeared with a revolver and delivered
the coup de grace.

The factual setting having been settled, we now go to the first assigned error , i.e., thwt the lower court
erred in categorizing the offense as murder there being no treachery since "the combatants were face to
face" and "[c]onfronting each other frontally . . . that each will know each other's next move." 23 Except
for appellants' premise, the argument has merit. The killing of Pacifico and Diosdado cannot be qualified
by treachery.

While we have already ruled that even a frontal attack can be treacherous, as when it is sudden and
unexpected and the victim is unarmed, 24 here, it appears that the aggressors did not employ means
tending directly and specially to ensure the execution of the crime without risk to themselves arising
from the defense which the offended parties might take.

It must be noted that the assailants attacked a group of six (6) individuals who could have been armed.

It is highly probable that at least one of those attacked could offer resistance and could put the lives of
the aggressors in danger, as what indeed happened when accused-appellant Gildo Amaguin and his
cousin Danny suffered injuries as a result of the fight which, from all indications, ended in a free-for-all.
That Pacifico sustained 15 stab wounds and a gunshot wound, and Diosdado, ten stab wounds and a
bullet wound, does not necessarily mean that treachery attended the killings. As already adverted to, for
treachery to be appreciated, the offender must employ means, methods, or forms in the commission of
the crime which tend directly and specially to insure its execution without risk to himself arising from
the defense which the offended party might take.25 Here, there is serious doubt.

On the third assigned error, i.e., that there was conspiracy between Gildo and Celso, who remains at
large, the evidence shows how Celso and Gildo simultanously assaulted the Oro brothers. While Celso
lunged at Pacifico, Gildo aimed his slingshot at Danilo who was hit by its dart, and immediately
attacked Pacifico with a knife. Under the circumstances, it is evident that Gildo and Celso acted in unison
and cooperated with each other toward the accomplishment of a common felonious objective.
Certainly, there was conspiracy between the brothers Gildo and Celso, and it was not necessary to prove
a previous agreement to commit the crime since from their overt acts, it was clear that they acted in
concert in the pursuit of their unlawful design.

However, it was error to rule that accused Willie was an accomplice to his brothers. There being no
sufficient evidence to link him to the conspiracy, he should be liable for the natural and logical
consequence of his own felonious acts. Hence, we take exception to the conclusion of the trial court
that Pacifico and Diosdado did not die due to the gunshot wounds inflicted by Willie.
Dr. Tito Doromal, the medico-legal officer who autopsied the bodies of Pacifico and Diosdado, testified
that while the gunshot wound sustained by Pacifico was not fatal, that suffered by Diosdado was fatal.26

Consequently, in Crim. Case No. 8041, where Willie mortally shot Diosdado, he should be liable for
homicide. And, since Diosdado was already on bended knees and pleading for his life when fatally shot,
the aggravating circumstance of the abuse of superior strength, although not alleged in the information
but proven during the trial, may be considered as a generic aggravating circumstance. 27
In Crim. Case No. 8042, where Willie shot Pacifico while lying prostrate already with numerous fatal stab
wounds, Willie should be liable for frustrated homicide it appearing that the gunshot wound was not
fatal although his intent to kill was evident. Likewise, the aggravating circumstance of abuse of superior
strength may be appreciated as a generic aggravating circumstance.

Finally, we agree with accused-appellants' view that voluntary surrender should be appreciated in their
favor. While it may have taken both Willie and Gildo a week before turning themselves in, the fact is,
they voluntarily surrendered to the police authorities before arrest could be effected. For voluntary
surrender to be appreciated as a mitigating circumstance, the following elements must be present: (a)
the offender has not been actually arrested; (b) the offender surrendered himself to a person in
authority; and (c) the surrender must be voluntary. 28 All these requisites appear to have attended their
surrender.

Now, we turn to the penalties.

In Crim. Cases Nos. 8041 and 8042, Gildo Amaguin is guilty of two (2) separate crimes of homicide for
the death of Diosdado and Pacifico, respectively. The penalty prescribed by law for homicide is reclusion
temporal. 29 Applying the Indeterminate Sentence Law, and appreciating the mitigating circumstance of
voluntary surrender with no aggravating circumstance, the maximum penalty to be imposed on accused
Gildo Amaguin for each of the homicide he has committed, which he must serve successively, should be
taken from the minimum of the imposable penalty, which is reclusion temporal the range of the
minimum period of which is twelve (12) years and one (1) day to fourteen (14) years and eight (8)
months, while the minimum should be taken from the penalty next lower in degree, which is prision
mayor the full range of which is six (6) years and one (1) day to twelve (12) years, in any of its periods.

In Crim. case No. 8041, Willie Amaguin is guilty of homicide aggravated by abuse of superior strength
but offset by the mitigating circumstance of voluntary surrender, and in Crim. Case No. 8042, he is guilty
of frustrated homicide likewise aggravated by abuse of superior strength but offset by voluntary
surrender. For the homicide, applying the Indeterminate Sentence Law and taking into account the
mitigating circumstance of voluntary surrender which, as earlier mentioned, offsets the aggravating
circumstance of abuse of superior strength, the maximum penalty should be taken from the medium of
the imposable penalty, which is reclusion temporal the range of the medium period of which is fourteen
(14) years eight (8) months and one (1) day to seventeen (17) years and four (4) months, while the
minimum should be taken from the penalty next lower in degree which is prision mayor in any of its
periods.

For the frustrated homicide, the imposable penalty is one degree lower than the penalty prescribed by
law for the consummated offense, and one degree lower than reclusion temporal is prision mayor.
Applying the Indeterminate Sentence Law and the attending circumstances which offset each other, the
maximum penalty to be imposed should be taken from the medium of the imposable penalty, which is
prision mayor the range of the medium period of which is eight (8) years and one (1) day to ten (10)
years, while the minimum should be taken from the penalty next lower in degree, which is prision
correccional the full range of which is six (6) months and one (1) day to six (6) years, in any of its periods.

WHEREFORE, the decision of the court a quo finding the accused-appellants WILLIE AMAGUIN and
GILDO AMAGUIN guilty in Crim. Cases Nos. 8041 and 8042 is MODIFIED as follows:
(a) accused-appellant WILLIE AMAGUIN is found guilty of HOMICIDE in Crim. Case No. 8041 and is
sentenced to six (6) years, two (2) months and one (1) day of prision mayor minimum as minimum, to
fourteen (14) years, eight (8) months and twenty (20) days of reclusion temporal medium as maximum,
and of FRUSTRATED HOMICIDE in Crim. Case No. 8042 and is sentenced to six (6) months and twenty
(20) days of prision correccional minimum as minimum, to eight (8) years, four (4) months and ten (10)
days of prision mayor as maximum, to be served successively;.

(b) accused-appellant GILDO AMAGUIN is found guilty of two (2) separate crimes of HOMICIDE in Crim.
Cases Nos. 8041 and 8042 and is sentenced to six (6) years two (2) months and one (1) day of prision
mayor minimum as minimum, to twelve (12) years, six (6) months and ten (10) days of reclusion
temporal minimum as maximum, for each homicide, to be served successively;

(c) in Crim. Case No. 8041, accused-appellants WILLIE AMAGUIN and GILDO AMAGUIN are declared
jointly and severally liable to the heirs of Diosdado Oro for P50,000.00 as civil indemnity consistent with
prevailing jurisprudence; and,

(d) in Crim. case No. 8042, accused-appellant GILDO AMAGUIN is liable to the heirs of Pacifico Oro for
P50,000.00 as civil indemnity.

Costs against accused-appellants WILLIE AMAGUIN and GILDO AMAGUIN in both cases.

SO ORDERED.

16. People v. Dela Cruz, G.R. No. L-45284, 29 December 1936

G.R. No. L-45284 December 29, 1936

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
FRANCISCO DE LA CRUZ, ET AL., defendants.
FRANCISCO DE LA CRUZ, appellant.

Marciano Sayoc for appellant.

Undersecretary of Justice Melencio for appellee.

AVANCEÑA, C.J.:

This case was prosecuted upon the following information:

That on or about the 30th day of May, 1936, in the City of Manila, Philippine Islands, the said accused
Francisco de la Cruz, Fernando Legaspi and three other persons whose identities are still unknown,
confederating together and helping one another, did then and there willfully, unlawfully and feloniously,
and with intent of gain, attack, assault and use personal violence upon one Yu Wan, by then and there
giving him blows with his fist on the face and other parts of the body, thereby inflicting upon him
physical injuries which have required and will require medical attendance for a period of more than one
but less than nine days and have prevented and will prevent the said Yu Wan from engaging in his
customary labor for the same period of time; and afterwards took, stole and carried away with him
without the consent of the owner thereof the following personal property, to wit:

Twenty-six (P26) pesos in cash, consisting of different denominations ................ P26.00

belonging to said Yu Wan, to the damage and prejudice of the said owner in the said sum of P26,
Philippine currency.

That the said accused Francisco de la Cruz is a habitual delinquent under the provisions of the
Revised Penal Code, he having been previously convicted once of the crime of theft and twice of
the crime of estafa, by virtue of final judgments rendered by competent courts, having been last
convicted on July 24, 1933.

Upon arraignment, the accused pleaded not guilty.

During the trial and after two witnesses for the prosecution had testified, the accused withdrew their
plea of not guilty, substituting it by that of guilty. The court sentenced Francisco de la Cruz to six months
and one day of prision correccional and, considering him a habitual delinquent, sentenced him
furthermore to the additional penalty of six years and one day of prision mayor. The other accused
Fernando Legaspi was sentenced to ten months of prision correccional. Francisco de la Cruz appealed for
this sentence.

The facts charged constitute the crime of robbery defined in article 294 of the Revised Penal Code and
punished by the penalty of prision correccional to prision mayor in its medium period.

The allegations of the information with respect to the appellant Francisco de la Cruz are not sufficient to
consider him a habitual delinquent (People vs. Venus, p. 435, ante). However, the facts alleged in this
respect constitute the aggravating circumstance of recidivism.lawphi1.net

On the other hand, the appellant's plea of guilty does not constitute a mitigating circumstance under
article 13, subsection 7, of the Revised Penal Code, which requires that this plea be spontaneous and
that it be made prior to the presentation of evidence by the prosecution. The confession of guilt,
although subsequent to the consummation of the crime and entirely alien to its development,
constitutes a cause for the mitigation of the penalty, not because it is a circumstance modifying criminal
responsibility already incurred and in the evolution of which it has not intervened absolutely, but
because, as an act of repentance and respect for the law, it indicates a moral disposition in the accused
favorable to his reform. It is clear that these benefits are not deserved by the accused who submits to
the law only after the presentation of some evidence for the prosecution, believing that in the end the
trial will result in his conviction by virtue thereof.

Wherefore, eliminating the additional penalty by reason of habitual delinquency, considering the
presence of an aggravating circumstance in the commission of the crime without any mitigating
circumstance, and applying the Indeterminate Sentence Law, the appellant is sentenced to the penalty
of from six months of arresto mayor, as minimum, to six years, ten months and one day of prision
mayor, as maximum, affirming the appealed sentence in all other respects, with the costs. So ordered.
17. Canta v. People, G.R. No. 140937, 28 February 2001

[G.R. No. 140937. February 28, 2001.]

EXUPERANCIO CANTA, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION
MENDOZA, J.:

This is a petition for review on certiorari of the decision, dated August 31, 1999, and resolution, dated
November 22, 1999, of the Court of Appeals, 1 which affirmed the decision of the Regional Trial Court,
Branch 25, Maasin, Southern Leyte, 2 finding petitioner Exuperancio Canta guilty of violation of P.D. No.
533, otherwise known as the Anti-Cattle Rustling Law of 1974, and sentencing him to ten (10) years and
one (1) day of prision mayor, as minimum, to twelve (12) years, five (5) months, and eleven (11) days of
reclusion temporal medium, as maximum, and to pay the costs.

The information against petitioner alleged:

That on or about March 14, 1986, in the municipality of Malitbog, province of Southern Leyte,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent to
gain, did then and there, willfully, unlawfully and feloniously, take, steal and carry away one (1) black
female cow belonging to Narciso Gabriel valued at Three Thousand Pesos (P3,000.00) without the
knowledge and consent of the aforesaid owner, to his damage and prejudice in the amount aforestated.

CONTRARY TO LAW. 3

The prosecution established the following facts:

Narciso Gabriel acquired from his half-sister Erlinda Monter a cow, subject of the case, upon its birth on
March 10, 1984. The cow remained under the care of Erlinda Monter for sometime. Subsequently,
Narciso gave the care and custody of the animal, first, to Generoso Cabonce, from October 24, 1984 to
March 17, 1985; then to Maria Tura, from May 17, 1985 to March 2, 1986; and lastly, to Gardenio
Agapay, from March 3, 1986 until March 14, 1986 when it was lost. 4 It appears that at 5 o’clock in the
afternoon of March 13, 1986, Agapay took the cow to graze in the mountain of Pilipogan in Barangay
Candatag, about 40 meters from his hut. However, when he came back for it at past 9 o’clock in the
morning of March 14, 1986, Agapay found the cow gone. He found hoof prints which led to the house of
Filomeno Vallejos. He was told that petitioner Exuperancio Canta had taken the animal. 5

Upon instructions of the owner, Gardenio and Maria Tura went to recover the animal from petitioner’s
wife, but they were informed that petitioner had delivered the cow to his father, Florentino Canta, who
was at that time barangay captain of Laca, Padre Burgos, Southern Leyte. Accordingly, the two went to
Florentino’s house. On their way, they met petitioner who told them that if Narciso was the owner, he
should claim the cow himself. Nevertheless, petitioner accompanied the two to his father’s house,
where Maria recognized the cow. As petitioner’s father was not in the house, petitioner told Gardenio
and Maria he would call them the next day so that they could talk the matter over with his father.

However, petitioner never called them. Hence, Narciso Gabriel reported the matter to the police of
Malitbog, Southern Leyte. 6 As a result, Narciso and petitioner Exuperancio were called to an
investigation. Petitioner admitted taking the cow but claimed that it was his and that it was lost on
December 3, 1985. He presented two certificates of ownership, one dated March 17, 1986 and another
dated February 27, 1985, to support his claim (Exh. B). 7

Narciso presented a certificate of ownership issued on March 9, 1986, signed by the municipal treasurer,
in which the cow was described as two years old and female. On the reverse side of the certificate is the
drawing of a cow with cowlicks in the middle of the forehead, between the ears, on the right and left
back, and at the base of the forelegs and hindlegs (Exhs. C, C-1 to 4). 8 All four caretakers of the cow
identified the cow as the same one they had taken care of, based on the location of its cowlicks, its sex
and its color. Gardenio described the cow as black in color, with a small portion of its abdomen
containing a brownish cowlick, a cowlick in the middle of the forehead, another at the back portion
between the two ears, and four cowlicks located near the base of its forelegs and the hindlegs. 9

On the other hand, petitioner claimed he acquired the animal under an agreement which he had with
Pat. Diosdado Villanueva, that petitioner take care of a female cow of Pat. Villanueva in consideration
for which petitioner would get a calf if the cow produced two offsprings. Petitioner claimed that the cow
in question was his share and that it was born on December 5, 1984. This cow, however, was lost on
December 2, 1985. Petitioner said he reported the loss to the police of Macrohon, Padre Burgos, and
Malitbog, on December 3, 1985 (Exh. A and Exh. 1). 10

Petitioner said that on March 14, 1986, his uncle Meno told him that he had seen the cow at Pilipogan,
under the care of Gardenio Agapay. He, therefore, went to Pilipogan with the mother cow on March 14,
1986 to see whether the cow would suckle the mother cow. As the cow did, petitioner took it with him
and brought it, together with the mother cow, to his father Florentino Canta. 11 Maria Tura tried to get
the cow, but Florentino refused to give it to her and instead told her to call Narciso so that they could
determine the ownership of the cow. 12 As Narciso did not come the following day, although Maria did,
Florentino said he told his son to take the cow to the Municipal Hall of Padre Burgos. Petitioner did as he
was told. Three days later, Florentino and Exuperancio were called to the police station for investigation.
13

Petitioner presented a Certificate of Ownership of Large Cattle dated February 27, 1985 14 and a
statement executed by Franklin Telen, janitor at the treasurer’s office of the municipality of Padre
Burgos, to the effect that he issued a Certificate of Ownership of Large Cattle in the name of petitioner
Exuperancio Canta on February 27, 1985 (Exh. 5). 15 The statement was executed at the preliminary
investigation of the complaint filed by petitioner against Narciso. 16

Petitioner’s Certificate of Ownership was, however, denied by the municipal treasurer, who stated that
petitioner Exuperancio Canta had no Certificate of Ownership of Large Cattle in the municipality of
Padre Burgos (Exhs. E, E-1 and 2). 17 On the other hand, Telen testified that he issued the Certificate of
Ownership of Large Cattle to petitioner on March 24, 1986 but, at the instance of petitioner, he (Telen)
antedated it to February 27, 1985. 18

On January 24, 1997, the trial court rendered its decision finding petitioner guilty of the offense
charged. In giving credence to the evidence for the prosecution, the trial court stated:

From the affidavits and testimonies of the complainant and his witnesses, it is indubitable that it was
accused Exuperancio Canta who actually took the cow away without the knowledge and consent of
either the owner/raiser/caretaker Gardenio Agapay.

That the taking of the cow by the accused was done with strategy and stealth considering that it was
made at the time when Gardenio Agapay was at his shelter-hut forty (40) meters away tethered to a
coconut tree but separated by a hill.

The accused in his defense tried to justify his taking away of the cow by claiming ownership. He,
however, failed to prove such ownership. Accused alleged that on February 27, 1985 he was issued a
Certificate of Ownership of Large Cattle (Exh. 2-A) for his cow by Franklin Telen, a janitor at the Office of
the Municipal Treasurer of Padre Burgos, a neighboring town. On rebuttal Franklin Telen denied in Court
the testimony of the accused and even categorically declared that it was only on March 24, 1986 that
the accused brought the cow to the Municipal Hall of Padre Burgos, when he issued a Certificate of
Ownership of Large Cattle for the cow, and not on February 27, 1985. Franklin Telen testified thus:

"Q. According to the defense, this Certificate of Ownership of Large Cattle was issued by you on
February 27, 1985. Is that correct?

A. Based on the request of Exuperancio, I antedated this.

(TSN, June 3, 1992, p. 7)"

The testimony of Franklin Telen was confirmed in open court by no less than the Municipal Treasurer of
Padre Burgos, Mr. Feliciano Salva. (TSN, September 29, 1992, pp. 5-8).

If accused Exuperancio Canta were the owner of the cow in question, why would he lie on its
registration? And why would he have to ask Mr. Franklin Telen to antedate its registry? It is clear that
accused secured a Certificate of Ownership of Large Cattle (Exh. 2-A) by feigning and manipulation (Exhs.
A & B) only after the act complained of in the instant case was committed on March 14, 1986. His claim
of ownership upon which he justifies his taking away of the cow has no leg to stand on. Upon the other
hand, the complainant has shown all the regular and necessary proofs of ownership of the cow in
question. 19

The Court of Appeals affirmed the trial court’s decision and denied petitioner’s motion for
reconsideration. Hence, this petition. It is contended that the prosecution failed to prove beyond
reasonable doubt his criminal intent in taking the disputed cow.

First. Petitioner claims good faith and honest belief in taking the cow. He cites the following
circumstances to prove his claim:

1. He brought the mother cow to Pilipogan to see if the cow in question would suckle to the mother
cow, thus proving his ownership of it;

2. He compared the cowlicks of the subject cow to that indicated in the Certificate of Ownership of
Large Cattle issued on February 27, 1985 in his name, and found that they tally;

3. He immediately turned over the cow to the barangay captain, after taking it, and later to the police
authorities, after a dispute arose as to its ownership; and
4. He filed a criminal complaint against Narciso Gabriel for violation of P.D. No. 533.

These contentions are without merit.

P.D. No. 533, §2(c) defines cattle-rustling as

. . . the taking away by any means, methods or scheme, without the consent of the owner/raiser, of any
of the abovementioned animals whether or not for profit or gain, or whether committed with or without
violence against or intimidation of any person or force upon things.

The crime is committed if the following elements concur: (1) a large cattle is taken; (2) it belongs to
another; (3) the taking is done without the consent of the owner; (4) the taking is done by any means,
methods or scheme; (5) the taking is with or without intent to gain; and (6) the taking is accomplished
with or without violence or intimidation against person or force upon things. 20

These requisites are present in this case. First, there is no question that the cow belongs to Narciso
Gabriel. Petitioner’s only defense is that in taking the animal he acted in good faith and in the honest
belief that it was the cow which he had lost. Second, Petitioner, without the consent of the owner, took
the cow from the custody of the caretaker, Gardenio Agapay, despite the fact that he knew all along
that the latter was holding the animal for the owner, Narciso. Third, petitioner falsified his Certificate of
Ownership of Large Cattle by asking Telen to antedate it prior to the taking to make it appear that he
owned the cow in question. Fourth, petitioner adopted "means, methods, or schemes" to deprive
Narciso of his possession of his cow, thus manifesting his intent to gain. Fifth, no violence or intimidation
against persons or force upon things attended the commission of the crime.

Indeed, the evidence shows that the Certificate of Ownership of Large Cattle which petitioner presented
to prove his ownership was falsified. Franklin Telen, the janitor in the municipal treasurer’s office,
admitted that he issued the certificate to petitioner 10 days after Narciso’s cow had been stolen.
Although Telen has previously executed a sworn statement claiming that he issued the certificate on
February 27, 1985, he later admitted that he antedated it at the instance of petitioner Exuperancio
Canta, his friend, who assured him that the cow was his. 21

Telen’s testimony was corroborated by the certification of the municipal treasurer of Padre Burgos that
no registration in the name of petitioner was recorded in the municipal records. Thus, petitioner’s claim
that the cowlicks found on the cow tally with that indicated on the Certificate of Ownership of Large
Cattle has no value, as this same certificate was issued after the cow had been taken by petitioner from
Gardenio Agapay. Obviously, he had every opportunity to make sure that the drawings on the certificate
would tally with that existing on the cow in question.

The fact that petitioner took the cow to the barangay captain and later to the police authorities does not
prove his good faith. He had already committed the crime, and the barangay captain to whom he
delivered the cow after taking it from its owner is his own father. While the records show that he filed
on April 30, 1986 a criminal complaint against Narciso Gabriel, the complaint was dismissed after it was
shown that it was filed as a countercharge to a complaint earlier filed on April 16, 1986 against him by
Narciso Gabriel.

Petitioner says that he brought a mother cow to see if the cow in question would suckle to the mother
cow. But cows frequently attempt to suckle to alien cows. 22 Hence, the fact that the cow suckled to the
mother cow brought by petitioner is not conclusive proof that it was the offspring of the mother cow.

Second. Petitioner contends that even assuming that his Certificate of Ownership is "not in order," it
does not necessarily follow that he did not believe in good faith that the cow was his. If it turned out
later that he was mistaken, he argues that he committed only a mistake of fact but he is not criminally
liable.

Petitioner’s Certificate of Ownership is not only "not in order." It is fraudulent, having been antedated to
make it appear it had been issued to him before he allegedly took the cow in question. That he obtained
such fraudulent certificate and made use of it negates his claim of good faith and honest mistake. That
he took the cow despite the fact that he knew it was in the custody of its caretaker cannot save him
from the consequences of his act. 23 As the Solicitor General states in his Comment:

If petitioner had been responsible and careful he would have first verified the identity and/or ownership
of the cow from either Narciso Gabriel or Gardenio Agapay, who is petitioner’s cousin TSN, 9/12/91, p.
26). Petitioner, however, did not do so despite the opportunity and instead rushed to take the cow.
Thus, even if petitioner had committed a mistake of fact he is not exempted from criminal liability due
to his negligence. 24

In any event, petitioner was not justified in taking the cow without the knowledge and permission of its
owner. If he thought it was the cow he had allegedly lost, he should have resorted to the court for the
settlement of his claim. Art. 433 of the Civil Code provides that "The true owner must resort to judicial
process for the recovery of the property." What petitioner did in this case was to take the law in his own
hands. 25 He surreptitiously took the cow from the custody of the caretaker, Gardenio Agapay, which
act belies his claim of good faith.

For the foregoing reasons, we hold that the evidence fully supports the finding of both the trial court
and the Court of Appeals that accused-appellant is guilty as charged. There is therefore no reason to
disturb their findings.

However, the decision of the Court of Appeals should be modified in two respects.

First, Accused-appellant should be given the benefit of the mitigating circumstance analogous to
voluntary surrender. The circumstance of voluntary surrender has the following elements: (1) the
offender has not actually been arrested; (2) the offender surrenders to a person in authority or to the
latter’s agent; and (3) the surrender is voluntary. 26 In the present case, petitioner Exuperancio Canta
had not actually been arrested. In fact, no complaint had yet been filed against him when he
surrendered the cow to the authorities. It has been repeatedly held that for surrender to be voluntary,
there must be an intent to submit oneself unconditionally to the authorities, showing an intention to
save the authorities the trouble and expense that his search and capture would require. 27 In
petitioner’s case, he voluntarily took the cow to the municipal hall of Padre Burgos to place it
unconditionally in the custody of the authorities and thus saved them the trouble of having to recover
the cow from him. This circumstance can be considered analogous to voluntary surrender and should be
considered in favor of petitioner.

Second, the trial court correctly found petitioner guilty of violation of §2(c) of P. D. No. 533, otherwise
known as the Anti-Cattle Rustling Law of 1974. However, it erred in imposing the penalty of 10 years and
1 day of prision mayor, as minimum, to 12 years, 5 months and 11 days of reclusion temporal medium,
as maximum. The trial court apparently considered P. D. No. 533 as a special law and applied §1 of the
Indeterminate Sentence Law, which provides that "if the offense is punished by any other law, the court
shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed
the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by
the same." However, as held in People v. Macatanda, 28 P. D. No. 533 is not a special law. The penalty
for its violation is in terms of the classification and duration of penalties prescribed in the Revised Penal
Code, thus indicating that the intent of the lawmaker was to amend the Revised Penal Code with respect
to the offense of theft of large cattle. In fact, §10 of the law provides:

The provisions of Articles 309 and 310 of Act No. 3815, otherwise known as the Revised Penal Code, as
amended, pertinent provisions of the Revised Administrative Code, as amended, all laws, decrees,
orders, instructions, rules and regulations which are inconsistent with this Decree are hereby repealed
or modified accordingly.

There being one mitigating circumstance and no aggravating circumstance in the commission of the
crime, the penalty to be imposed in this case should be fixed in its minimum period. Applying the
Indeterminate Sentence Law, in relation to Art. 64 of the Revised Penal Code, petitioner should be
sentenced to an indeterminate penalty, the minimum of which is within the range of the penalty next
lower in degree, i.e., prision correccional maximum to prision mayor medium, and the maximum of
which is prision mayor in its maximum period.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED, with the modification that petitioner
Exuperancio Canta is hereby SENTENCED to suffer a prison term of four (4) years and two (2) months of
prision correccional maximum, as minimum, to ten (10) years and one (1) day of prision mayor
maximum, as maximum.

SO ORDERED.