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Article 13 MITIGATING CIRCUMSTANCES 1 Incomplete Self-defense and Voluntary Surrender to Authority PEOPLE OF THE PHILIPPINES VS.

. ALBERT TABARNERO AND GARY TABARNERO G.R. No. 168169 February 24, 2010 FACTS: Late at night, Gary Tabarnero went to the house of Ernesto Canatoy where Gary used to reside as the live-in partner of Ernestos stepdaughter, Mary Jane Acibar. Gary and Ernesto had a confrontation during which, Ernesto was stabbed 9 times. Gary and his father, Albert Tabernero were charged with murder and on March 27, 2000, RTC issued warrants of arrest. On April 22, 2001, Gary surrendered to Barangay Tanod Edilberto Alarma while Albert remained at large. Defense: During the arraignment Gary pleaded not guilty but in the pre-trial conference he admitted killing Ernesto but in self-defense. When the Reverse trial ensued, Gary testified that he lived with Mary Jane for 2 years at Ernestos house but left the shortly before the incident because Ernesto stopped his planned marriage with Mary Jane, who was pregnant at that time. Shortly before the incident, Gary was at his house together with a friend, his brother, his mother, and father, herein co-accused. Overcome with his emotion over being separated from Mary Jane, he went to Ernestos house but was not able to enter. He shouted his pleas outside, asking what he did wrong and how much he loves Mary Jane. When he was about to leave, Ernesto struck him with a lead pipe, the former was aiming at Garys head, but Gary was able to block the blow with his hands. Gary embraced Ernesto, but the latter strangled him. At that point, Gary took the bladed weapon tucked at Ernestos back and stabbed him. Gary was stunned and did not notice that his father was coming. When asked by his father about what happened, Gary responded: Nasaksak ko po ata si Ka Erning. Then, both fled out of fear. On August 5, 2001, Alberto was apprehended and denied the accusations. He further said that they ran away in different directions, he immediately went to Norzagaray, and did not know where Gary proceeded. Edilberto Alarma, the barangay tanod, testified that while he was on a meeting, Gary arrived and told him of his intention to surrender and that he was responsible for the incident. He was brought to the Police Station were the surrender was entered in a blotter report. Prosecution: Emerito, brother of Mary Jane, who was inside their house at the time the incident happened, testified that he saw (7-8m away) his stepfather Ernesto being held by two persons while Gary and Ernesto were stabbing him with fan knives. Gary lost count of the number of thrusts made by Gary and Alberto but the last stab was made by the latter. Emerito further confirmed that Gary and Mary Jane were live-in partners and his father got mad when he knew about their relationship because they treated Gary as a member of their family. SP02 Ronnie Morales, asked Ernesto at the hospital who stabbed him and answered that the assailants were Gary and Alberto. Ernesto however died before he was able to sign the Sinumpaang Salaysay. RTC convicted both Gary and Alberto of murder; appealed to SC but was referred to CA. CA affirmed with modifications as regards the damages. In an appeal to SC, the accused contended that the RTC erred in not considering the justifying circumstance of self-defense and the mitigating circumstance of voluntary surrender interposed by Gary.

Article 13 MITIGATING CIRCUMSTANCES 2 Incomplete Self-defense and Voluntary Surrender to Authority ISSUES: 1.) Should the justifying circumstance of self-defense be considered on the part of Gary? 2.) Is Gary entitled to the mitigating circumstance of voluntary surrender? HELD: 1.) NO. Garys contention that the unlawful aggression on the part of Alberto was when the latter struck him of a lead pipe, his pleas outside their house could not be considered as sufficient provocation, and that his defense was reasonable, are unmeritorious. His testimony is insufficient and self-serving. The alleged initial attack on him when he was about to leave seemed to be all-convenient considering that no one witnessed the start of the fight. The nine stab wounds inflicted on Ernesto indicate an intent to kill and not merely to defend himself. He further argues that even if he is not qualified to the justifying circumstance of self-defense, he is still entitled to the mitigating circumstance of incomplete self-defense under Article 13(1). The court however, ruled that Gary failed to prove the presence of unlawful aggression which is an indispensable element of self-defense whether complete or incomplete. Hence, he is not entitled to the mitigating circumstance. 2.) NO. In order that the mitigating circumstance of voluntary surrender may be credited to the accused, the following should be present: (a) the offender has not actually been arrested; (b) the offender surrendered himself to a person in authority; and (c) the surrender must be voluntary. A surrender, to be voluntary, must be spontaneous, i.e., there must be an intent to submit oneself to authorities, either because he acknowledges his guilt or because he wishes to save them the trouble and expenses in capturing him. In the case at bar, appellant surrendered to the authorities after more than one year (almost one year and six months from the October 23, 1999 incident, and almost one year and one month from the issuance of the warrant of arrest against him on March 27, 2000 ) had lapsed since the incident and in order to disclaim responsibility for the killing of the victim. This neither shows repentance nor acknowledgment of the crime nor intention to save the government the trouble and expense necessarily incurred in his search and capture. Besides, at the time of his surrender, there was a pending warrant of arrest against him. Hence, he should not be credited with the mitigating circumstance of voluntary surrender Others: *Alberto is a principal by direct participation having actually participated in stabbing Ernesto. Ernestos dying declaration that it was the father and son, Gary and Alberto who stabbed him, proved to be very persuasive and entitled to the highest credence. *Killing of Ernesto is qualified by treachery because he was held by two other persons while he was being stabbed, which rendered him defenseless and unable to effectively repel or evade the assault. CA decision AFFIRMED with MODIFICATION (civil indemnity). sm_balbaboco9/6/13