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People vs Laguardia

The following aggravating circumstances were present in

this case of robbery with homicide: (1) despoblado or
uninhabited place since evidence shows that the accused
lay in wait for
the truck being driven by the victim at an
isolated portion of the highway, choosing that particular
spot where they could commit the crime without
disturbance or discovery and with easy opportunity for
escape; and (2) use of motor vehicles because the
7 conspirators
took the vehicle of the victim to facilitate
their escape and to prevent the other passengers from
reporting the offense to the authorities.
The following
aggravating circumstances were rejected: (1) nighttime
because it was not especially sough
t, as the victim's trip
schedule and not the discretion of the culprits determined
the time of its commission; (2) evident premeditation
because it is inherent in the crime of robbery and was not
proved in the commission of the killing; and (3) treachery,
as there is no evidence of its employment since none of
the witnesses actually saw the shooting.

people vs navasca
December 18, 1962, Tomas Navasca, Florencio Geraldes, Lorenzo Soberano and Manuel Marquez were charged with the crime of
robbery with homicide committed by a band before the Court of First Instance of Davao, Branch III (Criminal Case 7712), the
information reading as follows:

That on or about March 17, 1959, in the Municipality of Bansalan, Province of Davao, Philippines, and within the
jurisdiction of this Court, the abovementioned accused, all armed with deadly weapons, conspiring, confederating
together and helping one another, and with intent to gain and by means of force upon things and violence against
persons, did then and there wilfully, unlawfully and criminally take, steal and carry away the sum of One Thousand
Eight Hundred (P1,800.00) Pesos belonging to Go So alias OWA, to the damage and prejudice of the latter in the
aforesaid amount, and on the same occasion thereof, and in pursuance of said conspiracy, the abovementioned
accused, with intent to kill did then and there wilfully, unlawfully and criminally attack, assault and shoot said GO SO
alias OWA, thereby inflicting upon him injuries which caused his death.

Before arraignment, the commitment of the accused Tomas Navasca to the National Mental Hospital was ordered and proceedings
against him suspended after the court had adjudged him as suffering from mental disorder, on the strength of the report and
recommendation of a court-appointed doctor (Exhibit "A"), and after the court had satisfied itself "that he cannot understand the nature
of the proceedings to be conducted against him."

Due trial proceeded against the remaining accused, and on January 7, 1966, the court rendered its decision, the dispositive, portion of
which reads as follows:

WHEREFORE, in conformity to Art. 294, paragraph 1 in relation to Art. 296 of the Revised Penal Cone, the accused
FLORENCIO GERALDES and MANUEL MARQUEZ sentenced each of them to the supreme and extreme penalty of

The Court holds the view that (each of) the accused.

... has proven himself to be dangerous enemy of the society. The letter must protect itself from such enemy by taking his life in
retribution for his defense as an example and warning to others. In these days of rampant criminality it should have a salutary effect to
the criminally-minded to know that the Courts do not shirk their disagreeable duty to impose the death penalty in cams where the law so
requires. People v. Carillo, No. L-2043, Feb. 28, 1950; 85 Phil. 611.

People vs cajandab
he appellants here were convicted of the crime of murder by the Court of First Instance of Samar in its decision dated August 9, 1968 in
Criminal Case No. C-1157. They were each sentenced to reclusion perpetua and to indemnify the heirs of the deceased in the amount
of P6,000.00, to pay moral damages in the amount of P2,000.00, plus costs.
The first information filed with the trial court was for homicide against Santiago Cajandab alone. Subsequently an amended information
for murder was filed, including therein Manuel Ongray and Porferio Magdaraog and alleging that the three accused, "conspiring and
confederating together and helping one another, with treachery and evident premeditation, taking advantage of their official positions
and of superior strength, and employing means to insure impunity, did then and there willfully, unlawfully and feloniously hold, attack,
assault, stab and wound ALFONSO GARCIA with a pointed sharp-bladed deadly weapon, commonly known in the locality as 'kinogon,'
which the accused had at hand for the purpose, thereby inflicting a mortal injury on said victim's body, to wit: ... which caused the
immediate death of said ALFONSO GARCIA."

The fatal incident in question took place in Bo. Lagundi, municipality of Allen, Province of Samar, in the afternoon of January 26, 1965.
Two eyewitnesses testified for the prosecution, namely, Concepcion Alido, the victim's elder sister, and Tomas de los Santos.
Concepcion was a public school teacher in Bo. Kinaguitman and Tomas was a student who was then boarding with the Alidos. In the
afternoon of the incident Concepcion came home from school and took a seat by window facing the provincial road. In the house with
her at the time were he husband Apolinario Alido, their three children, Tomas de los Santos and Alfonso Garcia. Alfonso was then lying
in a hammock inside the bedroom. At about half past five that afternoon Manuel Ongray came near the house and in a loud voice
challenged Alfonso to come down so that they could shoot each other. Alfonso did not heed the challenge and after a while Manuel left
the premises. Some twenty minutes later Alfonso told her sister that he was going to the neighboring house of Eslao Carlon to get a
fighting cock, and asked Tomas to accompany him. Together the two went out through the kitchen door. Carlon's house was about sixty
(60) meters distant. Hardly had Alfonso and Tomas gone out of the gate of the Alidos and gained the provincial road when they noticed
Manuel Ongray and Porferio Magdaraog leave their respective house, which were located near that of the Alidos, and start running in
their direction. When they senses that they were the object of the pursuit they ran in different directions Tomas to Alfonso Garcia's
house across the road and Alfonso himself back to the house of the Alidos. Tomas reached the porch of Garcia's house and from there
was able to see what happened to his companion. At the gate of the Alidos Alfonso tripped on one of the crossbars thereof and
stumbled to a kneeling position, with his left leg bent under him and his right stretched forward, and his left hand supporting his weight
on the ground. He was in that position when his two pursuers caught up with him. Ongray held him by the right are with one hand and
aimed a revolver at him with the other. Magdaraog, who was barefoot, stepped on Alfonso's left hand while pressing him down by the
left shoulder. From her position by the window Concepcion heard her brother plead that he be spared and say that he had not
committed anything against his assailants. Right at that moment Santiago Cajandab arrived at the scene on a bicycle, coming from the
direction of the town of Allen. Leaving his bicycle near the house of one Felino Reyes across the road from where Alfonso was,
Santiago drew his bolo from his waist, ran toward Alfonso's left side and from the rear stabbed him in the front part of his body just
below the right clavicle. Apparently caught unawares by the sudden turn of events, Manuel Ongray and Porferio Magdaraog released
Alfonso and fled in the direction of the town. Santiago Cajandab, on his part, withdrew the bolo from his victim's body and stepped
backward. Alfonso stood up, bleeding profusely, and managed to stagger hurriedly to the house, with Santiago still chasing him and
stopping only when Apolinario Alido met the wounded man at the kitchen door and helped him inside. He was able to make a few
statements to the effect that he had been stabbed by "Tiaguing," meaning Santiago, and that he was going to die, as he did after a few

The stab wound, according to the necropsy report, was 1-1/2 inches in length and 1/2 inches in width, was located in the right
infraclavicular region directly downward and to the middle of the body, penetrating the pleural cavity, the upper lobe of the right lung
and the superior venacava. Hemorrhage was the immediate cause of death.

According to the victim's father, Angel Garcia, and his brother-in-law Apolinario Alido, several incidents in the past had created bad
blood between the three accused and the deceased. The said accused were related to one another, either by consanguinity or by
affinity. In December 1964 Alfonso Garcia married his wife Crisencia Dipon. The marriage was resented by Manuel Ongray, who
wanted the same woman for his cousin Roque blasquillo, also a suitor of hers. Then in a case of unjust vexation filed by one Visitacio
Eulin against Santiago Cajandab's father, Alfonso Garcia was one of the witnesses for the plaintiff. Another incident in 1954 involved
Porferio Magdaraog, whom Alfonso Garcia fingered as the man responsible for the loss of some barbed wire fencing the coconut land
belonging to a certain Frocto Marcelino.

Santiago Cajandab pleaded self-defense. He said that it was Alfonso Garcia who attacked him with a bolo, hitting him near the right
clavicular region, but he warded off the attack by pushing his bicycle in front of Alfonso and causing the latter to fall down. He grabbed
Alfonso's bolo and when he saw that the latter was trying to stand up and pulling a revolver from his hip pocket, Santiago stabbed him,
and then went to the municipal hall in Allen and surrendered to a policeman.

The trial court gave no credence to Cajandab's testimony, and We find no reason to disagree. It was quite unlikely that Santiago would
have sustained only a superficial cut on his right clavicular area if indeed Alfonso Garcia thrust at him with his bolo, considering that
they were very close to each other, Alfonso having grabbed him by the shirt and spoken angrily to him, according to his testimony. Then
again, if the fatal bolo belonged to the deceased, from whose hand Santiago Cajandab was able to wrest it, there is no explanation as
to why the defense did not produce it at the trial for proper identification in order to bolster the story. Cajandab made no statement as to
where the weapon was or what he did with it after stabbing Garcia. In any event, Cajandab's guilt has been fully established by the
testimony of the two eyewitnesses.

With respect to the other two appellants, Manuel Ongray and Porferio Magdaraog, the evidence is clear that they did not take part in the
killing. No conspiracy between them and Santiago Cajandab has been proven. While the attack perpetrated by Cajandab was
characterized by treachery, as far as the record shows it was unplanned and therefore without the previous knowledge of or warning to
the other two appellants. These two might have intended to cause harm or injury to Garcia, as their own actions quite clearly indicated;
but they did not carry out their intent, and instead desisted entirely and fled from the scene when Cajandab suddenly appeared and
attacked the victim.
There being no conspiracy the accused should be separately judgment by their individual acts, each being responsible only for the
consequences of what he did personally. In the case of People vs. Tividad, 20 SCRA 549, June 30, 1967, this Court, through Mr.
Justice Castro, held that since there was no conspiracy among the three accused, the person who inflicted the mortal wound
treacherously was guilty of murder, while the two other assailants, who had no intent to kill, were liable only for lesiones leves. In the
present case, Manuel Ongray and Porferio Magdaraog may not even be held guilty as accomplices, for in order to be considered as
such they must have cooperated in the execution of the offense by previous or simultaneous acts (Art. 18, Rev. Penal Code), and
cooperation presupposes knowledge of the criminal intention of the principal. Inasmuch as no injury to the deceased resulted from the
acts of these two accused, they incurred no criminal responsibility for any offense included within the allegations of the information for
murder filed against them.

The trial court correctly appreciated the qualifying circumstance of treachery against Santiago Cajandab because he attacked Alfonso
Garcia while the latter was in a defenseless position. Abuse of superior strength, under the facts of this case, may not be considered,
because he acted independently of the other two. The said accused is entitled to the mitigating circumstance of voluntary surrender.
Since there is no aggravating circumstance to offset it the minimum of the penalty provided in Article 248 of the Revised Penal Code,
which is reclusion temporal maximum to death, should be imposed. Applying the Indeterminate Sentence Law, the penalty of reclusion
perpetua imposed by the trial court must be reduced to an indeterminate sentence of from 10 years and 1 day of prision mayor, as
minimum, to 17 years, 4 months and 1 day of reclusion temporal as maximum. The amount of indemnity to be paid to the heirs of the
deceased by said accused is, however, raised from P6,000.00 to P12,000.00 As thus modified the judgment against Santiago
Cajandab is affirmed, with costs; while the judgment against Manuel Ongray and Porferio Magdaraog is reversed, and they are hereby
acquitted and ordered released from custody, with the corresponding costs de oficio.

People vs Sagre
Appeal by Rubico Sagre from the judgment of the Court of First Instance, Branch V, Iloilo, 11th Judicial District, Hon. Valerie V. Rovira,
presiding, finding him and his brother Balbino Sagre guilty beyond reasonable doubt of murder defined and penalized in Article 248 and
homicide defined and penalized in Article 249 of the Revised Penal Code, respectively, and sentencing them respectively to reclusion
perpetua with all the accessory penalties provided for by law and imprisonment of not less than ten (10) years, eight (8) months of
prison mayor as minimum, not more than fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as maximum with
all the accessory penalties provided for by law and to jointly and severally indemnify the heirs of Ramon Adayon Sr., the sum of
P12,000 and the further sum of P54,000.00 for loss of income, plus the sum of P5,000.00 for moral damages, and to pay the costs.
Balbino Sagre did not interpose any appeal from the judgment. 1

On November 25, 1969, the provincial fiscal of Iloilo filed an information against the Sagre brothers charging them With murder as

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That on or about October 31, 1969, in the municipality of Buenavista, Sub- province of Guimams, Iloilo, Philippines
and within jurisdiction of this Court, the above-named accused conspiring confederating and mutually helping one
another, armed with a knife (plaiminco) and a kitchen knife, and with a decided purpose to kill by means of treachery
and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and stab one RAMON
ADAYON, SR., with the weapon with which they were provided, thereby inflicting upon the latter multiple stab wounds
on the te death of said Ramon Adayon, Sr.


Upon arraignment on December 10, 1969, the two defendants pleaded not guilty. At the trial, the prosecution presented in evidence the
testimony of the following witness: (1) Dr. Edgardo G. Jabasa, Rural Health Physician Policeman (2) Sgt. Ruperto (3) Lorenzo o, (4)
Owar Penit, (5) Ramon Adayon, Jr., and (6) Araceli Adayon, together with the Medico-Legal Autopsy Report dated November 4, 1969
issued by Dr. Edgardo G. Jabasa (Exhibit "A"), the knife used by Balbino Sagre in stabbing Ramon Adayon (Exhibit "B") with its
scabbard (Exhibit "B-1"), the knife used by Rubico Sagre (Exhibit "C"), the pants (Exhibit "D"), bolo Exhibit "E"), shirt (Exhibit "F") and
handkerchief (Exhibit "F-1 "), pictures showing the cadaver of Ramon Adayon (Exhibits "G", 6'G-1", 'G-29t, "G-3" and "G.4"), a sketch of
the crime scene (Exhibit "H") showing the relative positions of the Diamante Jumping Horse (Exhibit "H-1") and the Shooting Gallery
(Exhibit "H-3"); and the hat of the deceased (Exhibit " I ") and his slippers (Exhibits "J " and "J-1"). In his defense, accused (1) Balbino
Sagre, adduced in evidence the testimony of (2) Aurelio Sta. Ana and that of his own, while accused (1) Rubico Sagre adduced in
evidence in his defense his own testimony and that of (2) Balbino Sagre and (3) Aurelio Sta. Ana, together with documentary evidence
consisting of the affidavit of Oscar Penit(Exhibit "1"). 3

The evidence for the prosecution establishes, as correctly synthesized by the trial court, the following

(A)t about 9:00 o'clock in the evening of October 31, 1969, Ramon Adayon and his son Ramon Adayon, Jr. left their
home in Barrio Rizal Buenavista, Iloilo for Barrio Sto. Rosario. of the samemunicipality. When they arrived in Sto.
Rosario, they joined the game of the Diamante Jumping Horse which happened to be there because of the barrio
fiesta which had just been over. They won a prize consisting of a glass bowl. They continued playing. Then Balbino
Sagre arrived, drunk and shouting "Stop the game Who is the bravest man in this group?" brushing aside people who
happened to be on his way. The hand of Ramon Adayon, Sr., which held the glass bowl was hit and the bowl fell
down and was broken. Ramon Adayon asked, "What are you doing, Benong? Balbino Sagre boxed Ramon Adayon
and then drew his knife (Exhibit "B") and stabbed Ramon Adayon who was hit on the chin. Ramon Adayon held the
hand of Balbino Sagre which held the knife (Exhibit "B ") and the two grappled for the possession of the knife. The
people scampered. Ramon Adayon shouted, "Help, dispossess him of the knife. No one came to dispossess Balbino
of his knife. Then all of a sudden Rubico Sagre, the brother of Balbino, appeared and stabbed Ramon Adayon at the
back. Forthwith, Ramon Adayon relaxed his grasp of the hand of Balbino who immediately freed himself and right
then and there stabbed Ramon Adayon on his side. Ramon Adayon fell to the ground. The two brothers immediately
rode on him and continued stabbing Ramon Adayon. Sgt. of Police Ruperto Zaragoza who was in the house of Victor
Ramos heard the commotion. He jumped down and ran towards the feria blowing his whistle. When Sgt. Zaragoza
reached the place of the incident, he met Rubico Sagre with butcher's knife (Exhibit "C"). Sgt. Zaragoza got the knife
from him and brought-ht him by the side of the road and told him to stay there. He returned to the place of the
incident where he saw Ramon Adayon la-ing on the ground and Balbino Sagre standing by and looking at ,he
deceased. He placed Balbino Sagre under arrest and twisted his hand which held the knife (Exhibit "B") and as a
consequence the knife fell to the ground. He did not mind the knife but brought Balbino Sagre with Rubico Sagre to
the barrio police station. While on their way, they met Patrolman Gabinete and two PD soldiers S/Sgt. Lampa and
Sgt. Trimanez. He turned over the persons of Balbino Sagre and Rubico Sagre to them. He returned to the crime
scene. The cadaver of Ramon Adayon was still there. He looked for the butcher's knife (Exhibit "B"). He found it and
its scabbard (Exhibit "B-1 "). Pictures were taken of the cadaver of Ramon Adayon (Exhibits "G", "G-1 " to "G-4 ") and
a sketch was made of the crime scene (Exhibit "H"). At 10:00 o'clock the following morning, November 1, Dr. Edgardo
G. Jabasa, Rural Health Physician of Buenavista, Guimaras, Iloilo, conducted an autopsy on the cadaver of Ramon
Adayon, and on November 4, 1969, he submitted his Medico-Legal Autopsy Report (Exhibit "A") with the following

1. Stabbed wound back, left side 1-3/4 inches wide, penetrating about 48 ins. from the sole of left
foot, about I inch to the left of the midvertebral line directed anteriorly and slightly inferiorly and to
the left with severe injury to the descendingaorta, and trachea and penetrating the upper segment
of the lower lobe of the left lung and injuring the posterior rib.

2. Stabbed wound, right side back 3/4 inch wide, about (1) inch from the midvertabral line and 45
inches from the sole of right foot penetrating directed anteriorly and slightly inferior involving the
lower lobe of right lung.

3. Stabbed wound 3/4 inch wide 44 inches from sole of right foot mid- line, 9th ICS penetrating
directed horizontally, slightly anterior and medially, penetrating the right diaphragm right lobe of the
liver and transverse colon.

4. Stabbed wound 3/4 inch wide, right scapular region, 2 inches deep, non penetrating involving the
skin, subcut tissue, scapular muscle, and grazing scapular bone.

5. Stabbed wound, left submandibular region, 3/4 in. wide, and I in. deep, involving skin and
subcutaneous tissue.

Body is in state of rigor mortis. Hemothorax left 2000 cc. Paleness of viceral organs. Heart and
big blood vessels almost empty.

Cause of Death: Instantaneous death due to shock due to internal hemorrhage, severe, secondary
to stabbed wound injuring the descending aorta. (Exhibit "A"). 4

Accused now lone appellants, Rubico Sagre interposed defense of a relative, i.e., his brother, co-defendant Balbino Sagre. He adduced
his testimony and that of Balbino Sagre and Aurelio Sta. Ana and Exhibit "1", Affidavit of Oscar Penit. His version of the stabbing
incident and the alleged surrender follows:

In the evening of October 31, 1969, a week after the barrio fiesta, there were still various games of amusement in the
Barrio of Sto. Rosario, Buenavista, Guimaras, Iloilo, among which were the jumping horse and shooting gallery (t.s.n.
pp. 12-13, Tauro and Tauro). At about nine o'clock of that same evening in the same place, the accused Balbino
Sagre, younger brother of the a appellant, went to the jumping horse stand owned by a certain Mrs . Diamente with
the intention of requesting the persons working therein to announce the loss of his son Arnaldo. When the accused
Balbino Sagre was about to enter the jumping horse stand, he accidentally slightly touched the bowl the deceased
Ramon Adayon, Sr. was holding as his prize for winning a game causing the same to fall. When Balbino Sagre was
already inside the jumping horse stand, he was called by the deceased to go out and the said accused went out of
the jumping horse island whereupon he was confronted by the deceased in an angry and manner as to why he did
not apologize for his act. The accused Balbino Sagre asked for an apology and to the deceased that his act of
touching the bowl was unintentional and without malice, whereupon the d Ramon Adayon, Sr. struck him with the
bowl. Fortunately, the accused Balbino Sagre was not hit. Then the deceased boxed the said accused but again the
latter was not hit as he was able to ship backwards (tsn., pp. 18-21, Equia).
Inasmuch as there was no more place to stop back as behind the accused Balbino Sagre was already the jumping
horse stand and the deceased made the motion of pulling something from his back pocket, the said accused dashed
towards the deceased, hugged him and later on grabbed from his back pocket what turned out to be a small knife
(Exh. "B"). At this juncture, the deceased being bigger and stronger than the accused Balbino Sagre, pushed the
latter against the wooden railing of the jumping horse stand caused the back of the accused to hit one of the threaded
bolts joining the wooden and wounding him at the back which wound bled profusely. Because the accused Balbino
Sagre was no match in strength against the deceased, the said accused, in order to free himself from the grasp of the
deceased made a thrust of the knife he was holding and hit the deceased on the left chin. After this, they grappled for
the knife

While the above incident was the people around scampered for safety. The music from the jumping horse stand
stopped. At about this time, the a appellant Rubico Sagre was in his house about 100 meters away cutting
"kangkong" leaves for his pigs. All of a sudden, he heard people running near his house and shouting that his
younger brother Balbino Sagre and the Ramon Adayon, Sr. were stabbing each other near the jumping horse gallery.
Upon hearing this and remembering that his children were also in the of the incident, the accident p whereupon
arrival he saw his younger brother Balbino Sagre bloody at the back grappling for the knife (Exh. "B'1) with the
deceased with the sharp pointed edge of the knife amity pointed very(t.s.n., pp. 21-22; 24-25, Equia).to the neck of
his younger brother and the deceased was pushing it, and believing that the life of his brother was already in
imminent danger as with one push from the deceased who was very much bigger and stronger the knife would
penetrate the throat of his brother and kill him the accused-appellant rushed towards the deceased and stabbed him
once only as may be evidenced by the Autopsy Report (Exhibit "A") and by the declaration of Dr. Edgardo Jabasa (t.
s n., pp. 5,9, Tauro and Tauro). The accused- appellant did not know which part of the body of the deceased was hit
because the latter was moving at the time the former stabbed him (t.s.n., pp. 46-49, Equia; pp. 70-71, Tauro and
Tauro). 5

The trial court disbelieved and discredited as "untenable" appellant's theory and the alleged surrender, thus

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As regards accused Rubico Sagre, he claims that he stabbed Ramon Adayon, Sr. in defense of relative. He said he
,stabbed Ramon Adayon once when he saw him (Ramon Adayon) with a knife (Exhibit "A") very close to and about to
hit the neck of his brother. This claim is untenable because according to Rubico Sagre lie stabbed Ramon Adayon
while he (Ramon) and Balbino Sagre were grappling for the possession of the knife (Exhibit "A"). Rubico also claimed
that Ramon Adayon saw him when he (Rubico) stabbed Ramon. This is untenable. Rubico Sagre stabbed Ramon
Adayon at the back (Wound No. 2, Exhibit "A") and even if Ramon Adayon saw Rubico before the latter stabbed
Ramon, the deceased could not do anything he was practically helpless. The Court holds that Rubico Sagre
stabbed Ramon Adayon with treachery. He committed murder.

They claimed that they voluntarily surrendered to Sgt. Zaragoza immediately after the commission of the felony. This
claim is untenable. According to Police Sgt. Zaragoza he arrested both accused, although they did not resist arrest.

The claim of voluntary surrender is untenable. Police Sgt. Zaragoza testified categorically that he arrested Rubico
Sagre with the weapon (Exhibit "C") in his hand, and after dispossessing him of the weapon and arresting him, he
went to the place of the crime scene and there he saw Balbino Sagre standing and looking at the deceased while
holding Exhibit "B ". After twisting the hand of Balbino Sagre to force him to release the weapon, Sgt. Zaragoza
arrested Balbino Sagre.

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The felony committed by Rubico Sagre as already said is murder defined in Article 248 of the Revised Penal Code
with the qualifying circumstance of treachery. There are neither aggravating nor mitigating circumstances present in
the commission of the felony which provides a penalty of reclusion temporal in its maximum period to death. Hence,
the penalty prescribed by law shall be imposed in its medium period (subdivision 1, Article 64, The Revised Penal
Code), of reclusion perpetua . 6

Appellant appealed and now assails the judgment alleging that the trial Court erred 7

(1) ... in not acquitting the accused-appellant (Rubico Sagre) of the crime charged in the information on the ground of
defense of relative.

(2) ... in convicting the accused-appellant of murder charged in the information.

(3) ... in not holding that the accused-appellant voluntarily surrendered to the proper authorities.
In support of the first and second assigned errors which appellant thru counsel de parte 8 argues jointly, he contends in connection with
his claim of defense of his brother, Balbino, that all elements for such justifying circumstance are present in his case; that the
provocation and unlawful aggression came from the victim, Ramon Adayon, Sr., now deceased, on the basis of the testimonies of
Balbino Sagre and Aurelio Sta. Ana, another defense witness; and that the means employed by him was reasonably necessary as
Ramon was much bigger and stronger than Balbino, and that he stabbed Ramon "With no other intention than that of saving the life of
his brother. 9

Finally, he argues that even if his brother Balbino provoked the fight, his defense is still legitimate, because when the fight between
Balbino and Ramon started at around 9:00 in the evening, he was not present and was in "honest belief" that his younger brother was a
victim of aggression by Ramon Adayon, Sr. 10

On the second assigned error, accused-appellant argues that treachery does not exist in this instance since there is no evidence that
he, prior to the moment of the killing, resolved to commit the crime or that the death of the victim was the result of meditation,
calculation or reflection; that the prosecution utterly failed to prove that he deliberately and consciously planned to stab the deceased
treacherously at the back. 11

1. The claim of appellant that he is entitled to the justifying circumstances of defense of a brother is untenable and without merit. It is
based solely upon his version of the stabbing incident which in turn is premised solely on his brother's and defense witness Sta. Ana's
testimonies. But the same is contrary to the facts established by the evidence on record and as found by the trial court and he has not
shown why the trial court's findings based on the consideration of the total evidence adduced should be disbelieved. As the
People's Brief 12 explains by way of traverse of this first alleged error -

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... Two eye-witnesses, Oscar Penit and Ramon Adayon, Jr. (son of the deceased), testified to the effect that when
Balbino Sagre arrived at the Jumping Horse Stand at Barrio Sta. Rosario in the evening of Oct. 31, 1969, he said
something like, "Stop the same, who is the bravest in this group?" And then, Balbino brushed aside Ramon Adayon,
Sr., causing a 'prize' bowl that the latter was holding to fall to the ground where it broke into pieces. At this juncture,
Balbino drew a kitchen knife and thrust it upon Ramon Sr. who was hit at the lower chin. A commotion at the stand
ensued while Ramon Sr. grabbed the hand of Balbino which was holding the knife as he shouted, 'Take away his
knife.' but nobody came to help. Just then, Rubico Sagre, the appellant appeared from behind and stabbed Ramon
Sr. at the back. Balbino followed-up stabbing Ramon Sr. at his right side, and then the latter fell to the ground
sidewise. But as he fell "they placed themselves on top (of Ramon Sr.) and continued hacking him (pp. 40, 41, 43-46,
t. s. n., Feb. 19, 1970, Tauro; pp. 5052, t.s.n., March 12, 1970, Tauro).

From the above narration of facts the provocation and unlawful aggression undoubtedly came from Balbino Sagre. It
is argued, however, that even if Balbino provoked the fight, Rubico's defense of a relative is still legitimate because
when the fight between Balbino and the deceased started at bout nine o'clock in the evening, the accused- appellant
was not even in the scene of the incident. Appellant's contention is, therefore, 'honest belief' that Balbino, his younger
brother, was victim of aggression of the deceased'(pp. 1719, Appellant's Brief).

We find appellant's contention hard to believe. It is admitted by the defense that when Rubico Sagre arrived at the
scene of the scuffle, he saw Balbino holding a kitchen knife, although appellant to have seen Ramon Adayon, Sr.
pushing the hand of Balbino (which was holding the knife) towards the neck of the latter (p. 47, t.s.n., April 1, 1970,
Eguia). But from the defense's own admission the one holding the knife was Balbino and Adayon had no weapon at
all it was easier to infer that Blbino was the aggressor. Granting that Rubico's brother was then in danger because the
knife he (Balbino) was holding was being pressed towards his throat, the question arises as to the reasonable
necessity of the means employed to repel the deceased' 'unlawfully aggression. Rubico first testified that he stabbed
Ramon Adayon, Sr. 'in the course of his grabbing with Balbino', and he altered his reply by saying that he stabbed
Adayon when they were 'face to face with each other' and while Ramon Sr. and his (appellant's) brother 'were both
holding their hands and the knife was very, very close to the neck of Balbino' (pp. 48, 50, 51, t.s.n., supra). At such
time, under the circumstances alleged by the defense, Rubico could very well have helped his brother subdue
Adayon without the use of any weapon and thus avert the danger that allegedly threatened Balbino. Assuming that
the pasion of the moment overwhelmed Rubico, the use of his knife against Adayon in order to help his brother
certainly did not justify stabbing Adayon with a fatal thrust stab wound no. 1, Exhibit "A", p. 4, t.s.n. Jan. 26, 1970,
Tauro). That the first thrust of the knife by Rubico must have been the fatal one is substantiated by the fact that from
his testimony, he stated that after he stabbed Adayon, the latter released the hand of Balbino Sagre from his grip,
whereupon, while Ramon Adayon, Sr., felt Balbino also stabbed Ramon (p. 48, t.s.n., April 1, 1970, Eguia). It is
interesting to note that the accused Rubico Sagre was unable (or hesitated) to reveal the part of Adayon's body which
he hit with his knife, and that his testimony discloses a laborious at. tempt to make it appear that there was no
treachery when Rubico stabbed Adayon. But the evidence on record does not suggest this trend of thought. It cannot
be true, as contended by the Sagre brothers, that they each delivered only one thrust of their knives upon Adayon,
because the medical report (Exh. "A") showed that a total of five (5) stab wounds were sustained by the deceased.
This, in the face of the undisputed fact that only the Sagre brothers had fought with Ramon Adayon, Sr. and that
immediately after the struggle between then-4 a policeman, a Sgt. Zaragoza, arrived and caused the former to be
brought to the police headquarters (p. 14, t.s.n., Feb. 6, 1970, Tauro). 13
2. The clain under the second assigned error that the homicide was not qualified by treachery is also without merit. Thus, again, as the
People's Brief explains, there is murder qualified by treachery when it appears 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 may make which was the case of herein appellant. Thus

When Rubico stabbed Ramon Adayon, Sr., the indications are that he hit the latter at the back (the fatal wound),
considering that at that time Rubico arrived while his brother and the deceased were still struggling, and Rubico had
an easier altho mobile target. With the least danger to himself, it was not unnatural for him to have struck Ramon Sr.
at the back. It has been held that there is murder qualified by treachery when it appears 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 may make (People vs. Calinawan, 83 Phil. 647; People vs.
Tumaob, 83 Phil. 738; People vs. Abalos, 84 Phil 771). It is worth mentioning that during the struggle between
Balbino Sagre and Ramon Adayon, Sr. Rubico Sagre appeared from behind all of a sudden and stabbed Adayon at
the back (pp. 38, 44, t.s.n., Feb. 6,1970, Tauro). This belies the accused's (Rubico) contention that when he stabbed
Ramon, Sr., the latter was facing both the Sagre brothers (p. 50, t.s.n., April 1, 1970). Even then Rubico's own
admission that 'Both Balbino and Ramon were running far from me, and in the course of their running from me, I hit
him'(p. 51, t s n, supra), lend credence to the theory of the prosecution that treachery was used by Rubico because
he had to approach Adayon when he stabbed the latter, and when he did Adayon was helplessly unknowing, ing of
his intention and even if he were, Adayon would not have threatened Rubico with any injury, for, he had no weapon
with him. There was, therefore, completely no risk to Rubico's life when he stabbed Adayon, as compared to the
inverse situation as against the deceased whose body was on the other hand exposed to the peril of Rubico's knife.
The fact that it does not appear that Adayon had even tried to repel the attack by Rubico, the more underscores his
helplessness or lack of awareness to the treacherous intrusion of Rubico.

Furthermore discrediting the defense version is that fact that two prosecution witnesses (Penit and Ramon Adayon
Jr.) testified having seen the deceased still being attacked by the Sagre brothers after he fell to the ground. This then
explain the other wounds on the body of the deceased. The timely arrival of Sgt. Zaragoza prevented the two from
inflicting further injury on Ramon Adayon, Sr. as his testimony showed that when he came upon the scene, Balbino
who was bending over the body of the deceased was sa in the act of stabbing with his fist closed.'(p. 22, t.s.n., Feb.
6, 1970, Tauro), while the appellant Rubico had just turned his back from the dead body 'maybe with the intention to
escape. . .'(p. 23, t.s.n., supra). It must be noted that while Sgt. Zaragoza rushed to the time, he was continuously
blowing his whistle (p. 13, t.s.n., supra), and this could have warned the appellant who, upon Zaragoza's arrival was
in the act of running away. 14

The finding and resolution of the trial court that under the information charging them for murder, Balbino is guilty only of homicide and
Rubico of murder where both Sagre brothers assaulted a common victim Ramon Adayon, Sr. is not unprecedented. Thus, in
1930, this Court, speaking through Mr. Justice Romualdez 15 held in a similar case where two persons were charged with murder for
the death of another that while treachery, as a qualifying circumstance, is a condition which should be considered against all persons
participating or cooperating in the perpetration of the crime where it (treachery) can only be imputed to one of the accused who inflicted
the wound upon the deceased while the latter was struggling with the other defendant, although the two assailants helped each other in
attacking the deceased, only the accused who inflicted the wound upon the deceased under treacherous circumstance may be found to
have done so with treachery, since the evidence do not show that the two assailants have conspired to take the victim's life.

Prescinding from the foregoing discussions, the defense of relative invoked by appellant is not applicable for it lacks the essential
elements of a clear unlawful aggression on the part of the deceased and reasonable necessity of means employed by appellant Rubico
Sagre; 16 and since it is further established by the record that treachery attended the stabbing of Ramon Adayon, Sr., the accused-
appellant committed upon the person of the deceased the crime of murder. 17

3. In support of the third assigned error, appellant argues that he voluntarily surrendered to the proper authorities; that accused-
appellant and his younger brother, Balbino, capitulated to Sgt. Zaragoza of the Buenavista Police Department; and that they did not
offer any resistance nor did they try to escape. 18

This argument is obviously without merit. The person to whom they surrendered, as the people's brief observes, is Sgt. Ruperto
Zaragoza of the Police Force of Buenavista, Guimaras, Iloilo. He was a witness for the prosecution and his narration of the manner he
placed appellant and his brother under arrest does not support the claim of the appellant. The Solicitor General continues thus

xxx xxx xxx

On the contrary, he (Sgt. Zaragoza) testified that he stopped Rubico Sagre from running, arrested the latter, and
dispossessed him of the knife he was holding (Exh. "C"). Seeing then that Balbino who was bending over the body of
Ramon Adayon Sr., and in the act of stabbing the latter, Sgt. Zaragoza ordered Rubico to stand by the side of the
road, and he proceeded to where Balbino was. Immediately, he approached Balbino, took hold of his hand (which
was holding a knife) and twisted it causing the knife (Exh. "B") to drop (pp. 13, 2024, t.s.n., Feb. 6, 1970, Tauro).
What the appellant is insisting on as voluntary surrender is the lack of resistance offered by the accused Sagre
brothers when Sgt. Zaragoza arrested then But as this policeman testified, "It was already impossible for Balbino (and
Rubico) to resist because I already arrested him' (p. 24, t.s.n., supra). The actuations of the Sagre brothers as seen
by this witness do not at all support the version of the defense which attempted to show that, after each of them had
stabbed Ramon Adayon Sr., Rubico immediately told his brother Balbino to surrender to the said policeman, and they
both surrendered (pp. 48-49, t.s.n., April 1, 1970, Eguia If they did surrender voluntarily, it would not have been
necessary anymore for Sgt. Zaragoza to stop and arrest each of them from what they were doing at the time
Rubico, from running away, and Balbino, from further stabbing Ramon Adayon Sr. and to dispossess them of the
knives they were caught with.

A surrender to be voluntary must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities,
either because he acknowledges his guilt, or because he wishes to save them the trouble and expense n y incurred in Ms search and
capture. However, a surrender is not voluntary when forced by circumstances as when escape was impossible under the circumstances
(Revised Penal Code, Luis B. Reyes, 1958 Rev. Ed., Book One, p. 179). This was in fact the situation of the Sagre brothers at the time.
Under the circumstances, the appellant cannot be credited with the mitigating circumstance of voluntary surrender under Article 13,
paragraph 7, of the Revised Penal Code. 19

people vs tsang hin wai

he sentence of death imposed on Tsang Hin Wai and Choi Ming Cheung, both British nationals from Hongkong, is before us for
automatic review.

On October 23, 1980, the City Fiscal of Pasay City, Metro Manila, filed an information against Tsang Hin Wai, Choi Ming Cheung and
Andy Chan Chiwai for illegal importation of prohibited drugs, in violation of Section 3, Article II of Republic Act No. 6425, as amended
by Presidential Decree No. 1683, committed as follows:

That on the 15th and 16th day of October, 1980, in Pasay City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one
another, did then and there wilfully, unlawfully and feloniously import and bring into the Philippines prohibited drugs
consisting of 2.8 kilos of heroin without authority of law.

Upon arraignment on October 27, 1980, all the three defendants pleaded "not guilty."

Trial was commenced on October 30, 1980. After the presentation of the evidence for the prosecution, the accused Choi Ming Cheung
and Andy Chan Chiwai each moved for a separate trial, which the court granted.

The following facts are not controverted:

The accused Tsang Hin Wai and Choi Ming Cheung both left Hongkong for Bangkok on October 7, 1980 on the same flight.
Subsequently, they left Bangkok for Manila on October 16, 1980, taking the same flight, TG Flight 201 of Thai International Airways,
which arrived at the Manila International Airport around 3:00 o'clock p.m. The dates of their departure from Hongkong, arrival in and
departure from Bangkok, and arrival in Manila are shown on their passports, Exhibits "M" and "N", and have been admitted by them in
their testimonies.

Upon arrival at the Manila International Airport, Tsang went to the interline office to claim his unaccompanied luggage which arrived the
day before, i.e., on October 15, 1980, from Bangkok on Thai International Airways.

Discovered inside the luggage of Tsang, upon inspection by the customs authorities, was a plastic bag containing a powdered
substance, almost white in color. This plastic bag was found hidden in a secret compartment, a false bottom, of the luggage. The
powder was tested and found to be heroin, weighing 2.8 kilograms.

Tsang was immediately apprehended by Roberto Santayana, Senior Intelligence Officer of the Bureau of Customs and head of a team
called SCAN (Suspected Cargo Anti-Narcotics team) at the Manila International Airport. After preliminary interrogation by the SCAN
team, Tsang was turned over to the Investigation Section of the customs police at the airport for investigation. Tsang was interrogated
by a team headed by Atty. Rolando Yebes through an interpreter by the name of Edward Chen, and his statement was taken down in
writing (Exhibit "H"). Tsang admitted that he was the owner of the brown luggage that contained the heroin. In his statement, he
revealed that Choi was with him on board the plane from Bangkok to Manila; that he believed it was Choi who placed the drug in the
suitcase because while in the Empire Hotel in Bangkok, he saw the former inserting something in the suitcase; that he was to deliver
the suitcase containing the heroin to Choi at the Mabuhay Hotel in Manila; that a Captain Chan (Andy Chan Chiwai) would pick it up at
the hotel; that he knew Choi and Chan to be members of a drug syndicate in Hongkong.

Checking the plane manifest, Yebes confirmed the fact of Choi's arrival on the same plane with Tsang. With the information provided by
Tsang, a team of customs policemen went to Mabuhay Hotel to look for Choi.

When the customs police found Choi in Room 315 of the Mabuhay Hotel, he was with another person, Andy Chan Chiwai, the third
accused in this case. Both of them were promptly taken in for investigation at the customs police office at the Manila International
Airport. The written statement of Choi was taken down by the team of Atty. Yebes (Exhibit "L").
Thereafter, the customs police turned over all three suspects to the Constabulary Anti-Narcotics Unit (CANU) at Camp Crame where
they underwent interrogation under Col. Jewel Canson. The statements of Tsang (Exhibit "P") and Andy Chan Chiwai (Exhibits "R" and
"S") were taken down in writing.

On October 21, 1980, two employees of the Hongkong Customs and Excise Service, Senior Inspector Wai Chi Hung and Assistant
Superintendent Ho Ken Sai, came to Manila and, with the permission of the PC Chief, were allowed to interrogate the three accused,
separately, in the office of Col. Jewel Canson on October 22, 24 and 25, 1980. Statements were obtained from each of the accused in
writing, in Chinese characters, which were brought to Hongkong by the Hongkong customs investigators and later translated into
English. The translations were authenticated by the Philippine Consulate in Hongkong and later introduced in evidence at the trial as
Exhibits "T", "U", "V" and "W" when Senior Inspector Wai testified for the prosecution. These statements revealed a drug smuggling
operation based in Bangkok and Hongkong, and detailed the involvement or participation of each of the accused in the operation.

At the trial, the three accused repudiated their written statements, saying that they were forced to give the statements under duress and
without benefit of counsel. In its decision, the trial court noted that the alleged confessions were taken during the custodial interrogation
of the accused without the assistance of counsel; hence, the court declared these statements inadmissible on the basis of the rulings of
this Court interpreting the provisions of Section 20 of Article IV of the 1973 Constitution which guarantee to persons under investigation
for the commission of an offense the right to remain silent and the right to counsel.

In rejecting the extrajudicial confessions of the accused, however, the trial court held that:

... in the case of both accused Tsang Hin Wai and Choi Ming Cheung, even disregarding their confessions as part of
the evidence against them, there still remain direct evidence to show that the two (2) of them actually committed the
crime charged in the Information inasmuch as they were found to have brought the heroin to the Manila International
Airport from Bangkok. In the case of Andy Chan Chiwai, on the other hand, the evidence relied upon by the
prosecution is basically his extra-judicial confession which under the circumstances, as hereinbefore stated, is
inadmissible; hence, Andy Chan Chiwai is entitled to an acquittal. There is no evidence of his participation in the
crime nor is there an evidence of his involvement in a conspiracy independent of his 'confession'.

Appellant Tsang Hin Wai claims that the trial court erred: (1) in finding him guilty beyond reasonable doubt of the offense charged; and
(2) in imposing the penalty of death.

On his part, appellant Choi Ming Cheung maintain that the trial court erred in holding that there was "direct evidence" showing that he
committed the crime charged, and in convicting him.

The evidence shows that a plastic bag containing a whitish powder weighing 2.8 kilograms was found in the luggage claimed by Tsang
at the interline office upon his arrival at the Manila International Airport in the afternoon of October 16, 1980. The suitcase, brown in
color, which had the word "Bang" pasted on it, arrived the day before on Thai International Airways from Bangkok. Inside the suitcase
were the clothes and personal effects of Tsang. The plastic bag containing the white powder was hidden beneath a false bottom of the
suitcase. Laboratory tests confirmed that the powder was heroin. This finding was not contested by the appellants.

Testifying in his own behalf, Tsang tried to show that he was not aware of the false bottom in his luggage; that he did not know there
was heroin inside the luggage; that the heroin did not belong to him. In short, he pictured himself as an unknowing and innocent carrier
of the prohibited drug. He even tried to conjure the possibility that he was framed; the suitcase shown to him by the customs police,
who according to him were waiting for him in a room at the interline office when he showed up to claim his luggage, appeared to have
been tampered and could be opened without the use of the key which was in his possession.

According to Tsang, the suitcase was given to him as a "present" by Choi's father the day before he and Choi left Hongkong for
Bangkok. He claimed that Choi's father asked him to be the "travelling companion" of Choi to Bangkok; that for his expenses, he was
given HK$5,000 by Choi's father, although he also brought HK$5,000 of his own money; that while in Bangkok, he was asked by Choi's
father, who called by long distance from Hongkong, to proceed to Manila to accompany Choi; that he had to purchase his air ticket for
the trip to Manila.

The testimony of Tsang does not strike us as credible. We find his story that he undertook the trip to Bangkok as a "travelling
companion" of Choi hard to believe. From his own account, it appears that while in Bangkok, he did not stay in the same hotel where
Choi was billeted. Moreover, Choi apparently had close relatives, i.e., mother and aunt residing in Bangkok, and had been to Bangkok
several times before, making it hardly necessary for a " travelling companion" to accompany him. Tsang's story that while in Bangkok
he was asked by Choi's father to proceed to Manila to accompany Choi is also difficult to believe. The ticket which was purchased and
paid for by Tsang in Bangkok (Exhibit "J") shows his itinerary to be Bangkok-Manila, Manila-Hongkong, and Hongkong-Bangkok,
thereby negating his claim that he was just accompanying Choi to Manila. Overall, his testimony lacks the ring of truth.

We, therefore, find no reason to disturb the finding of the trial court regarding Tsang's guilt. We are convinced of his guilt beyond
reasonable doubt.

With respect to Choi, however, the evidence adduced at the trial is insufficient to establish his guilt with moral certainty. While the
circumstances of the case place him as a prime suspect along with Tsang, there is no proof, direct or circumstantial, sufficient to nail
him down. Without the alleged extrajudicial confessions of the accused, the evidence adduced by the prosecution at the trial is
insufficient to link Choi to the importation of the heroin found in Tsang's luggage. The testimony of Tsang cannot be considered against
Choi. As correctly pointed out by Choi's counsel de oficio in his brief, the declaration of Tsang on the witness stand cannot be taken into
account as evidence against Choi, since the trial court had granted separate trials for the accused. Moreover, there is really nothing in
the testimony of Tsang, even if we were to believe him, which provides a substantial basis for linking Choi to the importation of the
prohibited drug. Tsang's testimony in which he tried to show that he was asked by Choi's father to be the "travelling companion" of Choi
in the trip to Bangkok and Manila, that the suitcase he used was given to him by Choi's father, that he left the suitcase unlocked in the
house of Choi's mother in Bangkok the day before it was checked-in for Manila, and that Choi told him to stay at Mabuhay Hotel in
Manila where he would also be staying, sought to establish circumstances which, at best, would give rise to an inference or speculation
that Choi had something to do with the heroin transported to Manila in Tsang's luggage. However, the accused cannot be convicted on
mere inference or speculation.

It is clear that there is no sufficient evidence to convict Choi of the offense charged in the information.

The remaining question to decide is the penalty. In addition to a fine, the penalty prescribed by the law for the offense consists of two
indivisible penalties. Section 3 of Article II of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended by P.D. 1683,

Sec. 3. Importation of Prohibited Drugs.The penalty of life imprisonment to death and a fine ranging from twenty to
thirty thousand pesos shall be imposed upon any person who, unless authorized by law, shall import or bring into the
Philippines any prohibited drug.

The trial court chose to impose the penalty of death and a fine of thirty thousand pesos on the convicted accused. In imposing the death
penalty, the court stated:

It finally appears from the evidence that the 2.8 kilos of heroin was illegally imported into the Philippines. If we were to
take into account the possible damage that this quantity of poison could do to the residents of this country who would
avail themselves of the illegitimate use of the same, it would be unimaginable. It is a public knowledge that dangerous
drugs crimes and similar offenses are daily occurrences. The country's highest police officer, General Fidel Ramos,
admits the rise in crime rate. ...

Under the present circumstances, using the expression of the Supreme Court, 'this Court will not shirk from its duty to
impose the penalty of death' when, as in this case, the law and the evidence so warrant. This the Court must do as a
deterrent to the criminally minded, in defense of society.

In her brief, counsel de oficio for appellant Tsang disagrees, citing the provisions of Article 63 (2) of the Revised Penal Code on the
application of indivisible penalties, to wit:

Art. 63. Rules for the application of indivisible penalties. ...

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be
observed in the application thereof:

xxx xxx xxx

2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty
shall be applied.

xxx xxx xxx

Appellant contends that in the present case, since no aggravating circumstances are alleged or proved, the lesser penalty of life
imprisonment should be imposed.

The appellee, on the other hand, contends that the above-cited provision of the Revised Penal Code is not applicable in cases involving
offenses punishable under a special law. Appellee maintains that the accused was charged and convicted of a crime penalized under a
special law; hence, whether it is life imprisonment or death that should be imposed, is a matter for the court to determine in its sound
discretion, taking into consideration the circumstances of the case.

We find no merit in appellee's contention True, this Court in several cases 1 has laid down the doctrine that offenses which are
punishable under special laws are not subject to the provisions of the Revised Penal Code regarding application of penalties. However,
the doctrine is not controlling in the present case.
The cases which spawned the above doctrine involved special laws which, while prescribing the penalties for the offense, explicitly
granted to the court the discretion to determine the penalty to be meted out within the range of the prescribed penalties. The rationale of
the doctrine was clearly explained in People vs. Ramos, which involved prosecution for illegal possession of firearms punishable under
the Revised Administrative Code. The penalty prescribed under the said Code was "imprisonment for a period of not exceeding one
year, or both imprisonment not exceeding such period and a fine not exceeding One Thousand Pesos, in the discretion of the Court"
(Section 2692). Pointing out that as provided in Article 10 the provisions of the Revised Penal Code shall be " supplementary" to special
laws, this Court held that where the special law expressly grants to the court discretion in applying the penalty prescribed for the
offense, there is no room for the application of the provisions of the Code. Said this Court:

... 'Suplir es integrar lo que falta en una cosa.' (Dic de la Academia, Ed. 1914). Cuando la ley espresamente concede
discrecion al tribunal en la aplicacion de la pena dispuesta por la ley no falta nada. La discrecion concedida en el
Codigo Administrative es la que esta en lugar de las 'Reglas para la applicacion de la penas' en el Codigo Penal
Revisado. 2

The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no explicit grant of discretion to the court in the application
of the penalty prescribed by the law. In such case, the court must be guided by the rules prescribed by the Revised Penal Code
concerning the application of penalties which distill the "deep legal thought and centuries of experience in the administration of criminal

Applying the provisions of Article 63, paragraph 2, of the Revised Penal Code, the penalty that should be imposed on the convicted
accused is life imprisonment and a fine of P 20,000.00.

WHEREFORE, the appealed judgment is hereby modified, and the accused- appellant Tsang Hin Wai hereby sentenced to reclusion
perpetua and to pay a fine of P 20,000.00. The accused-appellant Choi Ming Cheung is hereby acquitted. Costs de officio.



People vs Manansala
This is an appeal from the decision of the Court of First Instance of Albay in its Criminal Case No. 3285 convicting Avelino Manansala,
Jr. and Jose Manansala of murder and sentencing the first to an indeterminate penalty of from 10 years and 1 day of prision mayor to
17 years 4 months and 1 day of reclusion temporal, and the second to reclusion perpetua; both of them to indemnify jointly and
severally the heirs of Rodrigo Aringo in the sum of P6,000.00; and each to pay / of the costs.

The prosecution, relying mainly on the testimony of two eyewitnesses Celestino Atun and Percival Amador and of the policemen
who went to the scene of the crime upon noticing the commotion it produced, sought to establish the following: Between 1:00 and 2:00
o'clock in the afternoon of March 27, 1962, some persons had a quarrel inside the New Bicol Carinderia, an eatery located near the
Legaspi Port Market, Legaspi City. After a short while the protagonists came out through the backdoor of the carinderia. Jose
Manansala had Rodrigo in a tight embrace from behind, with his arms under the latter's armpits. While Rodrigo was in that position of
apparent helplessness, Avelino stabbed him with a balisong, or Batangas knife. The stabbing continued while Rodrigo was led, or
dragged, by Jose to a bamboo bed (papag) nearby, and even after Rodrigo had been forced down on it in a prone position. When the
policemen who responded to the commotion arrived they found Avelino still holding the fatal weapon, and Rodrigo's limp body, bathed
in his own blood, stretched on the papag. A taxicab was commandeered to take the wounded man to a hospital, but he expired even
before the vehicle could start. The autopsy later conducted by Dr. Antolin Lotivio, a resident physician of the Albay Provincial Hospital,
revealed that the victim died from massive hemorrhage and shock as a result of the multiple wounds (thirteen in all) sustained by him in
the chest, abdomen, back and the extremities.

The accused did not take the witness stand. However, they presented two witnesses, Domingo Daria and Salvador Petilos, who said
that they saw the whole incident. The substance of their testimony is as follows: Early in the afternoon of March 27, 1962 Avelino, a
small-time peddler of textiles in the Legaspi Port Market, was eating his lunch inside one of the eateries dotting the market site, when
Rodrigo Aringo alias Diego, a baggage boy in the same market, approached him and demanded his fee for having carried Avelino's
baggage. Avelino said he was willing to pay for the services rendered at noon, but not for those rendered earlier in the morning. He
then took some money from his pocket and proferred it to Rodrigo. Obviously peeved at having been thus publicly rebuffed, Rodrigo
brusquely brushed Avelino's hand aside and instantly gave him a fist blow in the face. Avelino fell from his seat; he tried to get up, but
was given another blow, and then a third. As he reeled from the force of the last blow a batangas knife he was carrying fell from his
trousers pocket. Avelino picked up the knife, and Rodrigo, seeing that he was armed, rushed to the carinderia's kitchen and returned
almost immediately with a 10-inch knife in his hand. With it he swung at his antagonist, but the latter evaded the blow.
Meanwhile, appellant Jose Manansala, an uncle of Avelino, noticed the commotion from outside the carinderia, where he was loading
baggage on a parked truck some six meters away. He shouted at Rodrigo to stop. Rodrigo paid no heed and instead delivered another
thrust at Avelino, who again evaded it. At the third attempt, Jose embraced Rodrigo from behind, and it was at that moment that Avelino
stabbed Rodrigo and inflicted the numerous wounds which proved fatal. Jose took the kitchen knife from Rodrigo and threw it away,
and then released his limp body on the papag nearby. When the policemen arrived Avelino was still clutching the knife he had used.
Both appellants were apprehended.

In its decision rendered on August 14, 1964 the trial court sustained the prosecution's version of the incident and found both accused
guilty of murder. However, the court credited Avelino with the mitigating circumstance of sufficient provocation or threat on the part of
the victim, and imposed upon him a lesser penalty than that imposed on his uncle.

Appellants' plea is self-defense. This is predicated on the theory that the deceased was himself armed with a knife with which he tried
to stab Avelino, as declared by the two witnesses for the defense. Several circumstances, however, belie this claim. First, Avelino
sustained no knife wound at all. Second, although several policemen arrived at the scene of the incident almost immediately after it
happened, not one of them saw the knife allegedly used by Rodrigo. Nor was it shown to them, or at least brought to their attention, by
either of the appellants. Indeed, when Avelino surrendered to the policemen he declined to give any statement, which in the natural
course of things he would have done if he had acted merely to defend himself. A protestation of innocence or justification is the logical
and spontaneous reaction of a man who finds himself in such an inculpatory predicament as that in which the policemen came upon the
appellants, with Avelino still clutching the death weapon and his victim dying before him.

But while it is clear that Avelino did not act in legitimate self-defense, the trial court correctly held that there was sufficient provocation
on the part of the victim. The evidence given by the witnesses for the defense as to how and why the fight started, and as to the fact
that the deceased hit Avelino with his fist, is not controverted by the witnesses for the prosecution, who did not see the incident from the
very beginning. And one fist blow at least is confirmed by the doctor who treated Avelino for a contusion around one eye.

On the other hand, the fact that when Avelino stabbed the victim the latter was practically helpless and unable to put up any defense
being in the tight embrace of Jose Manansala, was correctly appreciated by the trial court as treachery, and qualifies the offense as

Jose Manansala was found guilty as co-principal on the ground that there was concert of action between him and his nephew. The
evidence does not justify this finding beyond reasonable doubt. There is no showing that the killing was agreed upon between them
beforehand. No motive for it has been shown other than the provocation given by the deceased; and such motive was true only insofar
as Avelino was concerned. The circumstances indicate that if Jose embraced Rodrigo and rendered him helpless, it was to stop him
from further hitting Avelino with his fists. However, Jose is not entirely free from liability, for it has been established that even after the
first knife thrust had been delivered he did not try to stop Avelino, either by word or overt act. Instead Jose continued to hold Rodrigo,
even forced him down on the bamboo bed with Avelino still pressing the attack. Withal it cannot be said that Jose's cooperation was
such that without it the offense would not have been accomplished. But although not indispensable, it was a contributing factor. If
Jose's initial intent was free from guilt, it became tainted after he saw the first knife thrust delivered. The thirteen wounds must have
taken an appreciable interval of time to inflict, and Jose's cooperation facilitated their infliction. He must therefore be held liable as an

The slaying of the deceased having been qualified by treachery, Avelino Manansala is liable for murder, the penalty of which is
reclusion temporal maximum to death (Art. 248, Revised Penal Code). Appreciating in favor of Avelino the mitigating circumstance of
sufficient provocation by the deceased without any generic aggravating circumstance to offset the same, the penalty imposable upon
him is the minimum period of the penalty for murder (see par. 3, Art. 63, Revised Penal Code), which is reclusion temporal maximum
(17 years, 4 months and 1 day to 20 years). Since the resulting penalty is neither death nor life imprisonment, the Indeterminate
Sentence Law applies (Sec. 2, Act No. 4103 as amended). Avelino Manansala is therefore entitled to an indeterminate sentence, the
upper range of which is reclusion temporal maximum and the lower range which is one degree lower than the penalty prescribed by
the Revised Penal Code for murder is anywhere within prision mayor maximum (10 years and 1 day) to reclusion temporal medium
(17 years and 4 months). The penalty meted out by the trial court on Avelino Manansala, Jr. "from 10 years and 1 day of prision
mayor to 17 years 4 mouths and 1 day of reclusion temporal" is within the range allowed by law and is therefore correctly imposed.

As regards appellant Jose Manansala, the penalty prescribed by law, he being an accomplice, is one degree lower than that prescribed
for the principal, or prision mayor maximum to reclusion temporal medium (10) years and 1 day to 17 years and 4 months). Applying the
Indeterminate Sentence Law, and considering that under paragraph 1, Article 64 of the Revised Penal Code, "(W)hen there are neither
aggravating nor mitigating circumstances, (the court) shall impose the penalty prescribed by law in its medium period," the decision
appealed from should be, as it is hereby, modified as follows:

Appellant Jose Manansala, as accomplice to the offense of murder, is sentenced to an indeterminate penalty of from 4 years, 2 months
and 1 day of prision correccional to 12 years and 1 day of reclusion temporal; the amount of the indemnity is raised from P6,000.00 to
P12,000.00 to be paid the heirs of the deceased by Avelino Manansala, Jr. as principal; in case of the insolvency of the principal, Jose
Manansala, as accomplice, is subsidiarily liable for the indemnity due from said principal; and in all other respects the judgment
appealed from is affirmed. No costs in this instance.
People vs Ganut
This is an appeal from the judgment rendered by the Court of First Instance of Ilocos Norte, Branch 1, convicting the accused Simeon
Ganut for the crime of murder and sentencing him to suffer the penalty of reclusion perpetua with the accessories of the law, to
indemnify the heirs of the deceased Salvador Malaqui in the amount of P12,000.00 without subsidiary penalty under the following
Information which reads thus:

The undersigned Assistant Provincial, Fiscal of Ilocos Norte accuses Simeon Ganut of the crime of MURDER,
committed as follows:

That on or about the 17th day of October, 1970, in the municipality of Sarrat, Province of Ilocos
Norte, Philippines, and within the jurisdiction of this Honorable Court, the herein accused with intent
to kill, and with treachery, evident cruelty, and/or outraging or scoffing at the person or corpse, did
then and there willfully, unlawfully and feloniously attack, assault and hack one Salvador Malaqui,
inflicting upon him 25 wounds that caused his death.


Laoag City, April 20, 1971.

s/t L. D. CARPIO Asst. Provincial Fiscal

The version of the prosecution with respect to the events leading to the death of the victim is succinctly recited in the appellee's Brief,
as follows:

On October 17, 1970, at about 8:00 o' clock in the evening, the deceased Salvador Malaqui, his brother, Nelson,
together with Antonio Vista, went to the house of Pablo Lagutan where hectic preparations were taking place for a
wedding to be celebrated the following day (t.s.n, p. 5, June 8, 1971; also t.s.n., p. 10, June 27, 1971). Salvador
Malaqui we-it inside the kitchen and seated himself on the western side of the table while Nelson Malaqui and
Antonio Vista remained outside the doorway of said kitchen (t, s. n., p. 8, Ibid.). Inside the kitchen at that time was the
appellant herein, Simeon Ganut, together with Florentino Lagutan and Marciano Lagutan who were then chopping
meat (t.s.n., p. 12, July 27, 1971). When the deceased Salvador Malaqui had seated himself, he asked Marciano
Lagutan to make some "Kilawen" which Marciano Lagutan answered, 'You ask the Chief, 'referring to appellant
Simeon Ganut. Without much ado, appellant Simeon Ganut stood up and hacked with his bolo Salvador Malaqui at
the back of the left side of the body (t.s.n., p. 11, June 8, 1971) which he followed with a second blow that hit his
(Ganut's) leg (ibid). After the second blow, appellant said 'Come now and let us kill him' (t.s.n., p. 12, Ibid).
Immediately thereafter, the coleman lamp supplying the light in the kitchen was put out (t.s.n., p. 12, Ibid). Antonio
Vista and Nelson Malaqui hastily went down the kitchen, the former going to the house of the relative of those who
were to be married while the latter went to their house to inform his mother about the incident (t.s.n., p. 14, Ibid; also
t.s.n., p. 15, July 27, 1971).

Dr. Jovencio Castro who autopsied the cadaver of the deceased testified that the latter suffered 25 wounds, eight (8)
of which were inflicted at the front while seventeen (17) wounds were inflicted at the back. The same doctor further
declared that the cause of death was hemothorax, severe secondary to chopping injury lateral thoracic walls, left,
incising the left auricle (t.s.n., pp. 53-54, Ibid).

Specifically, the post-mortem report showed the following findings:


1. Chopping injury 3' long, occiput, fracturing skull.

2. Chopping injury 2.5" long incising the sternocleidomaastoid muscle.

3. Incised wound 2' long one inch below lesion No. 2.

4. Incised wound 1.5' long, scapular region, left.

5. Chopping injury 4 " long incising scapular muscle, right.

6. Lacerated wound 2' long scapular region, right.

7. Lacerated wound, one inch long scapular region, right.

8. Abrasion 4 " long, back right, level of the 8th rib.

9. Chopping injury 6" long lateral thoracic wall fracturing the

4th, 5th, 6th and 7th rib, left and incising the left auricle.

10. Chopping injury 6' long anterior thoracic wall level of-the left lumbar region.

11. Chopping injury 4.5' long, posterior thoraric wall, left lumbar region.

12. Chopping injury 3' long along the posterior axillary fold, left.

13. Incised wound. 5' long left scapular region.

14. Chopping injury 3' long posterior aspect, upper third, forearm left.

15. Chopping injury 4 " long lateral aspect, thigh, left.

16. Chopping injury 3' long lateral aspect, thigh, right.

17. Incised wound anterior aspect, left.

18. Lacerated wound 1.5' long, foot, left.

19. Abrasion 1.5" long, lower third posterior aspect, hand, right.

20. Abrasion 0.5' long, middle third, posterior aspect, arm, right.

21. Abrasion upper third, posterior aspect forearm, right.

22. Abrasion 2" long lower third, lateral aspect, arm, right.

23. Abrasion 3' long, lateral aspect, arm, right.

24. Abrasion 0. 5 " long, posterior aspect, forearm, right.

25. Multiple abrasion at three points base of the right thumb.

xxx xxx xxx

Cause of death:

Hemothorax, severe secondary to chopping injury lateral thoracic wall, left, incising the left auricle.

The accused-appellant interposed the justifying circumstance of self-defense and adduced the following version of the incident narrated
in his Brief, as follows:

On the night of October 17, 1970, Santiago Lagutan requested Simeon Ganut (accused), Salvador Malaqui
(deceased), Marciano Lagutan, and Cardito Miguel to butcher a pig for the wedding of his (Santiago Lagutan) son
which was to take place the next day, October 18, 1970 (Pp. 2, 29, 35 and 47, t.s.n. Rillera). The four were inside the
kitchen of Pablo Lagutan cutting meat. Deceased Malaqui was cutting meat with bones with a short bolo (badang) on
a low table (dulang); Cardito Miguel was building fire on the stove in the northern part of the kitchen (p. 2, t.s.n.
Rillera); Accused Ganut was cutting meat on a high table; while Marciano Lagutan was washing the intestines of the
pig on the low table where the deceased was (p. 34, t.s.n Rillera). Deceased Malaqui asked Marciano Lagutan to
make raw meat (kilawen) but Marciano told the deceased to a k the chief referring to the accused (p. 35, t.s.n.
Rillera). At this point, the deceased Malaqui stood up and angrily said: 'Who is the chief, I am the chief,' and
simultaneously thereof hacked Marciano Lagutan on the right forearm. Marciano Lagutan sought cover behind
Simeon Ganut who was behind him but the deceased followed him (Lagutan) with his bolo (Pp. 36-37, t.s.n. Rillera).
When the deceased followed Marciano Lagutan the accused tried to pacify him by extending his two arms towards
the deceased saying: 'What are you doing my son,' but instead the deceased sat down and simultaneously hacked
accused Ganut on the left knee (p. 53, t.s.n., Rillera). Deceased then began hacking the accused but the accused
was able to parry the blows by striking the deceased first whenever the deceased rushed at him to hack him (Ganut)
since he could not stand up because after being hacked by the deceased on the left leg the accused fell on his knees
and could not stand up (p. 53, t.s.n. Rillera). The accused and the deceased exchanged blows for one and a half
minute and when the deceased continued rushing and hacking the accused, the accused hacked the deceased twice
on the breast from right to left and left to right and the deceased stepped backward three meters from the accussed
(p. 54, t.s.n. Rillera). At that instant the accused went out of the kitchen towards the door of the batalan but the
accused followed him with his bolo. Upon getting out of the kitchen the deceased again aimed at the accused but as
the deceased hack him (Ganut), the deceased fell and when the deceased was in the act of falling the accused
hacked him at the back of the head thinking that he was again being hacked by the deceased (Pp. 54-55, t.s.n.
Rillera). At that time the accused was no longer conscious and did not know what he was doing (ibid.). Santiago
Lagutan was the person who answered the cry for help of Ganut and assisted Ganut from the main stairs of the ho of
Pablo Lagutan and there Ganut told Santiago Lagutan that he was hacked by the deceased and that he hacked the
deceased in self-defense. (p. 26, t.s.n. Rillera).

The Court a quo refused to give credence to the plea of self-defense, holding that "(a)ccused Ganut claims that all the time that he
inflicted the injuries on Salvador Malaqui at the breast and stomach, he was in a kneeling position. However, the number of the frontal
wounds, eight of them, wounds 9, 10, 17, 18, 22, 23, 24 and 25 especially wound No. 9 which is a 'chopping injury 6" long lateral
thoracic wall fracturing the 4th, 5th, 6th and 7 th rib, left and incising the left auricle' (Exh. A) could not have been inflicted in a kneeling
position. The Court is cognizant that a man in a kneeling position cannot give much force to his attacks and movements or effectively
defend himself in such an incongruous position. It is so that the Court believes this claim is highly improbable, and indeed, it is utterly
inconceivable that accused Ganut would be unscathed i this claim is true that there was an exchange of hacking between him and the
deceased Malaqui; and, more likely than not, Malaqui was without any weapon with which to defend himself as shown by the twenty-
five (25) wounds he sustained without having inflicted any, There is, likewise, an admission by accused Ganut that after his infliction of
the wounds on the stomach and breast, Salvador seemingly frightened retreated some three (3) meters away. It was then that Ganut
claimed he stood up and tried to go to the door to go down but Salvador followed him still with his bolo so Ganut hacked him at the neck
which was the coup de grace. At that time of this ultimate hacking by Ganut, Salvador, with the twenty-four (24) wounds, was already
helpless, and indeed, could have not held onto his bolo, even if he had any, and considering the one fatal wound, No. 9, a 'chopping
injury 6' long lateral thoracic wall fracturing the 4th, 5th, 6th and 7th rib, left and incising the left auricle' (Exh. A), it is sheer gullibility if
one would yet believe that Malaqui still could have stood up, much less walk.

The accussed Ganut did not explain, moreover, how deceased Malaqui sustained the wounds at the back, seventeen (17) in all,
wounds 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, 19. 20 and 21. Antonio Vista, however, testified that accused Ganut hacked
Salvador at the back of the left side of the body while the latter was seated at which he fell to the floor. The medical certificate, Exh. A,
indeed shows wounds 4 and 13, Exh. B-2, on the left side of the body of Salvador and obviously the other injuries, wounds Nos. 1, 2, 3,
5, 6, 7, 8, 11, 12, 14, 15, 16, 19, 20 and 21 being at the back had been inflicted also at this time; thus, the deceased Malaqui at the
onset of the sudden attack by accused Ganut had no inkling of the aggression because in the first place he was tailing to Ciano
Lagutan, and secondly, the attacks were from his back, and conceivably all the wounds at the back were inflicted after Malaqui fell to
the floor at the initial aggression of accused Ganut: thus, the Court is convinced that there was treachery in the commission of the crime
qualifying the killing to murder. As to the other aggravating circumstances, the evidence is insufficient to justify an affirmative finding."

Accused-appellant, appealing to Us, now seeks reversal of the lower court's decision, interposing the plea of self-defense.

We sustain the findings of the trial court that the plea of self-defense claimed by the accused-appellant cannot be believed. For one
thing, the number of wounds sustained by the deceased, twenty-five (25) in all, eight (8) wounds inflicted in front and seventeen (17) at
the back, strongly belie the assertion of self-defense. The nature and number of wounds inflicted by an assailant has been constantly
and unremittingly considered an important indicia which disprove a plea of self-defense. In People vs. Panganiban this Court
exhaustively underscored Our previous rulings exemplifying the bearings of multiple wounds vis-a-vis the plea of self-defense, to wit: "In
the Gonzales case, the then Justice Torres considering the ten (10) wounds inflicted on the deceased correctly characterizes the
allegation of self-defense as 'incredible because it is improbable.' In People vs. Constantine, this Court, thru Justice Bengzon, had to
reject the plea of self-defense which in his opinion was 'belied and negatived' by the 'nature, number and location of the decedent's
wounds. 'People vs. Somera, speaks to the same effect thus: 'The theory of self-defense on the part of Pablo is clearly negatived by the
numerous (19) wounds inflicted upon Felix. Upon the other hand, such wounds are indicative of aggression and of the participation
therein of appellant ....' In another opinion of this Court in People vs. Mendoza, it was persuasively stressed: 'Finally , the number of
"wounds on the body of the deceased, and their location as registered in the autopsy report, expose the inherent weakness of the claim
of self-defense. There were in all fifteen wounds, one in the neck, two in the abdomen, seven in the chest and the others in the various
parts of the arms,"

Appellant Simeon Ganut, testifying as to the manner how he inflicted the twenty-five wounds on the victim Salvador Malaqui, declared
as follows:

Atty. Flores:

Q. And how did you hack Salvador Malaqui?

A. Whenever he rushed towards me, sir, I could reach him and hack also like this. (Witness with his
right hand on top of his left shoulder swung it forward).

Q. Is that the only position you have in hacking Malaqui?

A. Yes, sir.


Q. You mean to say you were never able to stand up?

A. No, Your Honor.

On cross-examination by the fiscal, Simeon Ganut reiterated his stance:


Q. You stated previously that when you were hacked already, you were in a sitting position,
kneeling with your right leg and then the left leg stretched forward and an the time you were in that
position when you said that the deceased Malaqui was hacking you for several times, did I get you

A. I was in a sitting position,. sir.

Q. The question is: when you started hacking this Malaqui, you were always in a kneeling position?

A. Yes, sir.

Q. And you were in that position all the time when you were parrying?


He said that.

Accused-appellant having admitted that he was the author of the death of the deceased, it is incumbent upon him, in order to avoid
criminal liability, to prove the justifying circumstance claimed by him-self-defense-to the satisfaction of the court.

To do so, he must rely on the strength of his own evidence and not on the weakness of that of the prosecution, for even if that were
weak it could not be disbelieved after the accused himself had admitted the killing.

The foremost requirement of self-defense in order to be appreciated is unlawful aggression which is a sudden, unprovoked attack. The
person attacked must face a real threat to his life, safety or rights and the peril must be imminent or actual. If no unlawful aggression
attributable to the victim is established, there can be no self-defense, either complete or incomplete.

The version of the defense, as previously related earlier, stresses the point that after the accused allegedly tried to pacify the deceased,
saying "What are you doing my son?" that was the time when he (the deceased) took his seat and then hacked the accused. (tsn. p. 61,
Sept. 9, 1971). Such version is difficult to believe in the light of human behavior and experience for a person who intends to commit
unlawful aggression would not take his seat first and thereafter inflict injury at the foot or leg of his adversary. If it was the intention of
the deceased to attack the accused, the former would not have taken a lower position by sitting down. He would have attacked a
vulnerable portion of the body of his adversary as his immediate target instead of hitting just the leg of the accused.

We cannot accept the claim of the appellant that his injury on the leg was inflicted by the deceased Salvador Malaqui. According to the
accused, he was in a sitting position when he was wounded on the left leg (tsn, p. 50, Sept. 9, 1971). However, the scar of the incised
wound allegedly inflicted by the deceased is an elongated one, five inches in length, located on the left leg, upper third, anterior aspect
(tsn, p. 20, Ibid.), hence, the wound would not have been inflicted in such a position considering that the accused himself testified that
the bolo thrust came from downward. The testimony of Dr. Federico Campos on this point is deserving of greater probity when he
declared that from the position and nature of the wound, it is possible that the accused holding a bolo with his right hand may have
inflicted the wound on the left leg. (tsn, p. 20, Ibid) The testimony of the doctor confirms the claim of the witnesses Antonio Vista and
Nelson Malaqui that in hacking the deceased the second time, the appellant hit his left leg instead (tsn, p. 12, June 8, 1971; p. 14, July
27, 1971).
Again, the findings of the lower court as to the infliction of the wound on the left leg of the accused himself must be respected and
affirmed considering that said court had the opportunity to observe the behavior and deportment of the witnesses. It is well-settled that
when there is an irreconcilable conflict in the testimony of witnesses, the appellate court will not disturb the findings of the trial court
when the evidence of the successful party, considered by itself, is adequate to sustain the judgment appealed from.

With respect to the attendance of the qualifying circumstance of treachery which the trial court appreciated in conviction, the accused of
the crime of murder, We do not agree with the lower court's holding that: "The medical certificate, ... indeed shows wounds 4 and 13 ...
on the left side of the body of Salvador ... thus, the deceased Malaqui at the onset of the sudden attack by accused Ganut had no
inkling of the aggression because in the first place he was talking to Ciano Lagutan, and secondly, the attacks were from his back and
conceivably all the wounds at the back were inflicted after Malaqui fell to the floor at the initial aggression of accused Ganut; thus, the
Court is convinced that there was treachery in the commission of the crime qualifying the killing to murder.

In order that treachery may be appreciated, it must be established beyond reasonable doubt. The attendance of treachery as a
qualifying circumstance is founded upon the concurrence of two (2) conditions, to wit: (2) the employment of means, method or manner
of execution which would insure the offender's safety from any defensive or retaliatory act on the part of the offended party, which
means that no opportunity is given the latter to defend himself or to retaliate; and (2) that such means, method or manner of execution
was deliberately or consciously chosen. There is treachery when the offender commits any of the crimes against the person,
employing means, methods or forms in the execution thereof which tend directly and especially to insure its execution, without risk to
himself arising from the defense which the offended party might make. (Article 14, No. 16, Revised Penal Code).

In the case at bar, although the attack was sudden and unexpected, evidence do not disclose that accused-appellant did plan or made
a preparation to hurt the victim in such a manner as to insure the commission of the crime to make it impossible or hard for the victim to
defend himself or retaliate. "Mere suddenness of an attack is not enough to constitute the qualifying circumstance of treachery where it
does not appear that the accused had consciously chosen the method of attack directly and specially to facilitate the perpetration of
homicide without risk to himself arising from the defense that the victim might offer, As indicated in People vs. Tumaob (83 Phil. 738,
742) the qualifying circumstance of treachery cannot logically be appreciated because the accused did not make any preparation to kill
the deceased in such a manner as to insure the commission of the crime or to make it impossible or hard for the person attacked to
defend himself or retaliate.

We find no evidence or circumstance shown by the prosecution that the accused Ganut knew, much less expected, the coming of the
deceased Salvador Malaqui to the kitchen where preparations for the coming wedding were being made. In fact the evidence of the
prosecution show that it was immediately after Salvador Malaqui had requested that "kilawen" be made that infuriated the accused
Simeon Ganut to strike the deceased with his bolo. Accused-appellant therefore, was not afforded sufficient opportunity to deliberate
and consciously adopt a method of attack which would directly and specially facilitate the killing of his victim without risk to himself or
make it impossible or hard for the victim to defend himself or retaliate.

As to the aggravating circumstances of evident cruelty and outraging or scoffing at the person or corpse, We agree with the trial court
that the evidence is insufficient to justify an affirmative finding.

We rule that the proper crime committed by the accused is homicide, punishable by reclusion temporal under Article 249 of the Revised
Penal Code, the same to be imposed in its medium period. Applying the Indeterminate Sentence Law, the accused-appellant should be
sentenced to suffer an indeterminate penalty of from ten (10) years and one (1) day of prision mayor as minimum to fourteen (14)
years, eight (8) months and one (1) day of reclusion temporal as maximum.

WHEREFORE, the decision appealed from is hereby modified in that the accused-appellant Simeon Ganut is hereby found guilty of
homicide and sentenced to suffer an indeterminate penalty of from ten (10) years and one (1) day of prision mayor as minimum to
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum. The rest of the appealed decision is hereby


People vs Apolinar
This is an appeal from a decision of the Regional Trial Court, Branch 33, Siniloan, Laguna finding PO3 Apolinar E. Dando ("accused-
appellant") guilty beyond reasonable doubt of murder.

The Information filed against accused-appellant reads:

That on or about 6:19 o'clock in the evening of November 20, 1991 at Barangay M. Pandeo, Municipality of Siniloan, Province of
Laguna and within the jurisdiction of this Honorable Court, the above-named accused while conveniently armed with a deadly weapon
(cal. 45) with intent to kill, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack,
assault and shoot several times one CESAR CASTRO y VALMONTE with the said weapon, thereby inflicting upon him gunshot
wounds on the vital parts of his body which directly caused his death, to the damage and prejudice of the surviving heirs of the victim.
That the qualifying and aggravating circumstances of treachery, evident premeditation and abuse of superior strength attended the
commission of the crime.


On the same date, accused-appellant filed a motion for inhibition and for a change of venue of the case because several staff members
of Branch 33, RTC of Laguna were related to the victim. On February 12, 1992, Judge Venancio M. Tarriela, the Presiding Judge of
said branch, granted the motion. On May 14, 1992, this Court approved the change of venue and designated Judge Jose C. Mendoza
of Branch 26, RTC of Sta. Cruz, Laguna, to try and decide the case.

Accused-appellant filed a petition for bail which was denied after hearing on the ground that the evidence against accused-appellant is
strong. Accused-appellant then went to the Court of Appeals via petition for certiorari questioning the denial of his petition for bail.

Subsequently, on account of another motion for inhibition, filed by accused-appellant alleging that a prosecution witness in the hearing
for the petition for bail was related to a staff member of Branch 26, the case was re-raffled and transferred to Branch 28, RTC of Sta.
Cruz, Laguna, presided by Judge Fernando Paclibon, Jr.

On June 18, 1993, the Court of Appeals rendered its decision dismissing accused-appellant's petition questioning the denial of his
motion for bail, for lack of merit.

During trial and after the prosecution witness had already rested its case, the Presiding Judge of Branch 28, RTC of Sta. Cruz, Laguna,
likewise, inhibited himself from further hearing the case when accused-appellant questioned his impartiality because of his refusal to
grant accused-appellant's motion to recall prosecution witness Susana Masacupan to the witness stand as a hostile witness. The case
was transferred back to Branch 26, RTC of Laguna, then presided by Judge Pablo Francisco.

On May 2, 1995, the trial court rendered its decision the dispositive portion of which reads:

WHEREFORE, this Court finds the accused Apolinar Dando guilty beyond reasonable doubt of the crime of murder as charged in the
information, qualified by treachery and committed with the aggravating circumstances of use of craft or disguise and evident
premeditation and hereby sentences him to suffer the penalty of reclusion perpetua and to pay the heirs of Cesar Castro as follows:

a.) the sum of P50,000.00 as death indemnity;

b.) the sum of P1,628,000.00 for loss of earning capacity; and

c.) the sum of P35,974.00 as reimbursement for expenses incurred in the wake and burial of the victim; and to pay the costs.


The prosecution's account of the case as narrated in the brief of the Solicitor General is as follows:

Prosecution witness Aldwin Gemanel testified that on November 20, 1991, he went to the house located at Pandio Street, Siniloan,
Laguna of his uncle, Angelito Millares, Jr. (Junior Millares) to look for his (Gemanel's) father. Junior Millares' house was about 100 to
150 meters away from that of the victim, Cesar Castro. Upon arrival at his uncle's place, a party was on-going as it was the birthday of
the former (p. 3, tsn, June 17, 1992). At the said party, gunshots were fired by appellant and Junior Millares to celebrate the occasion
(p. 4, tsn, October 20, 1992 and pp. 14-15, tsn, August 26, 1993). After a few hours at the birthday party, Gemanel decided to go to his
grandmother's house, a mere three (3) houses away from his uncle's house (p. 5, tsn, June 17, 1992). On the way to his grandmother's
house, he saw appellant Apolinar Dando, sat on the side-car of a tricycle parked along Pandio Street in front of Junior Millares' house
and placed a white handkerchief over his face (p. 5-6, tsn, Ibid). Though puzzled by the action of appellant, Gemanel proceeded to his
grandmother's house and stayed there for almost an hour (pp. 20-21, tsn, September 22, 1993). When Gemanel went out of the house,
he saw appellant get off the tricycle with the handkerchief covering his face and walk towards the direction of the town plaza (pp. 30-31,
tsn, Ibid.). At that time, Gemanel followed appellant and then he (Gemanel) entered a bakery to buy bread (pp. 28-29, tsn, Ibid). While
inside the bakery, Gemanel heard a shot, so he ran outside to look where the shot came from (p. 36, tsn, Ibid). Thereupon, he saw
appellant with the same white handkerchief covering his face, firing three (3) more shots at Cesar Castro, who was standing on the
street in front of his (Castro's) house. After the fourth shot appellant ran towards the "paraanan" or alley, to the direction of the town
plaza (pp. 37-43, tsn, Ibid).

Gemanel rushed home and told his mother what he had just witnessed (p. 53, tsn, September 22, 1993). His mother then went to the
crime scene while he was left to tend their store (p. 54, tsn, Ibid.) When his mother came back after about ten (10) minutes, he confided
to her that he saw appellant shoot Cesar Castro (p. 54, tsn, Ibid). His mother then advised him not to tell anyone. Then he went to the
crime scene for a closer look of the victim (p. 55, tsn, Ibid).
The following day on November 21, 1991, Gemanel was fetched by police officers from his school and was brought to the municipal
building for questioning. The day after, on November 22, 1991, he executed a statement (Exhibit "A"; pp. 8-9, tsn, July 14, 1992).

Gemanel further testified that he was present when a slug was recovered from the front yard of his uncle's (Millares') house (p. 11, tsn,
July 14, 1992). He personally saw the slug which was subsequently handed to Celso Castro, son of Cesar Castro. He learned that the
slug found was one of those fired from the service pistol of appellant when the latter fired his gun during the birthday party of his uncle
(pp. 11-12, tsn, Ibid).

Susan Masakupan, 29 years of age, married and a resident of Pandio Street, Siniloan, Laguna, corroborated the testimony of
Gemanel. She testified that on or about 6:00 o'clock in the evening of November 20, 1991, while she was getting dry clothes hanging at
their clothesline located at their front yard, a man wearing a white polo shirt with designs and a pair of khaki pants and had a
handkerchief covering his face passed by. Surprised with the man's covered face, her gaze followed the man until the latter stopped by
victim Cesar Castro. Thereupon the man shot Cezar Castro and when the latter fell down, the man continued on shooting at Cesar
Castro two (2) or more shots. After the additional shots, the man ran towards an alley (pp. 2-5, tsn, July 21, 1992).

SPO4 Efren Palma, Deputy Station Commander of the PNP, Siniloan, Laguna, testified that three (3) slugs and three (3) empty shells
were recovered from the crime scene on the night of November 20, 1991 (p. 6, tsn, October 5, 1992).

Josue Flores, property custodian of the PNP, Siniloan, Laguna, testified that he issued to appellant, who is a member of PNP, Siniloan,
Laguna, (one 1) service firearm, which was a caliber .45 pistol, Remington, with serial number 1945012 (pp. 3, 5 and 7, tsn, August 11,

Florentino Raada, a member of the Central Intelligence Service of Siniloan, Laguna, testified that he received from the Siniloan,
Laguna police station the following specimens:

- one (1) slug .45 caliber ammunition;

- three (3) pieces slug for .45 caliber ammunition;

- three (3) pieces empty shells for a .45 caliber ammunition;

- one (1) piece caliber Remington pistol with serial number 1945012.

and issued a receipt for them (Exhibits "E" and "E-1"; pp. 17-20, tsn, August 11, 1992).

Raada further testified that one (1) slug of a .45 caliber pistol recovered from the body of the victim, which was turned over to him by
Arvee Castro, brother of the victim (pp. 27-28, tsn, Ibid) has [sic] sent together with the above specimens to the PNP crime laboratory
for ballistic examination (p. 30, tsn, Ibid).

Susan R. Jalla, PNP officer and criminologist, testified that she conducted a ballistic examination on the specimens submitted (Exhibits
"H", "I", "J" and "K"; pp. 11-13, tsn Ibid).

She issued a certification (Exhibit "N") stating: ". . . microscopic examination, MS-1, MRS-1, MRS-15 revealed the same individual
characteristics as the test bullets and test cartridges, respectively fired from the above-mentioned firearm" (p. 17, tsn, Ibid).

Dr. Priscilla Realeza, Rural Health Physician of Pakil, Laguna, testified that she conducted a postmortem examination on the cadaver of
Cesar Castro. She issued an Autopsy Report (Exhibits "R" and "R-1") finding that the victim sustained eleven (11) gunshot wounds (pp.
6-7, tsn Ibid) and that one (1) bullet slug was extracted from his body (p. 12, tsn, Ibid).

Accused-appellant, on the other hand, gave the following version of the incident: On November 20, 1991, he was a member of the
Philippine National Police (PNP) with the rank of PO3 and detailed as security to the mayor of Siniloan, Laguna. At around one o'clock
in the afternoon of that day, he arrived at the house of Junior Millares who was then celebrating his birthday. He participated in a
drinking spree up to three o'clock in the afternoon. On that occasion, there was no firing of a gun. He did not bring his gun to the
birthday party because he was not in a habit of bringing his gun when he attended such occasions. When he left the party, he went
straight home and slept. He woke up at around midnight because of an upset stomach and vomitted. He went back to sleep and woke
up the second time in the morning of November 21, 1991, changed his clothes, ate his breakfast and went to work at around eight
o'clock in the morning. It was only on November 22, 1991 that he learned from his wife that the Chief of Police and the Mayor were
looking for him and that he was a suspect in the killing of Castro. After eating his supper, he went to the municipal building where the
Chief of Police informed him that he was a suspect in the killing of Castro and was placed under technical arrest. He surrendered his
firearm for ballistic examination to show that he had nothing to do with the killing. Thereafter, he did not know what happened to
The testimony of accused-appellant as to his whereabouts during the time the crime was committed was supported by his wife Herninia
Dando who testified before the trial court that on November 20, 1991 she went home at 4 o'clock in the afternoon to cook their supper.
Less than an hour later, her husband arrived, went to the sala and slept until the next morning. They had breakfast together and after
that, they went to their respective places of work.

Accused-appellant assign the following errors committed by the trial court, to wit:









The first and third issues shall be dealt with together as they are interrelated.

Accused-appellant assails the testimony of Aldwin Gemanel alleging that it was marred by inconsistencies and was incredible,
therefore, unworthy of belief. Among these inconsistencies, according to accused-appellant, are:

1. Gemanel testified that there was a birthday party attended by accused-appellant in the house of his (Gemanel's) uncle, Junior
Millares, and there he saw accused-appellant pull out his gun and fire a shot downward on the floor. However, Millares himself testified
that accused-appellant merely gave to him the gun and it was he (Millares) who fired two shots. Then he handed the gun to another
guest, Agustin Salinas, who likewise fired said gun twice and then it was returned to accused-appellant.

2. Gemanel testified that moments before the shooting of Castro, he saw accused-appellant in front of the house of Millares putting a
handkerchief to cover his face and then going inside the tricycle to rest. However, during the summary examination by the Municipal
Judge who conducted the preliminary investigation, he testified that he saw accused-appellant on board the tricycle sleeping.

3. Gemanel testified that he was barely one house away from the place of the shooting when he heard a shot. When he looked at the
place where the shot came from, he saw a man already sprawled on the ground and the man, whose face was covered by a
handkerchief, fired two (2) more shots at the victim and left passing through a pathway. In other words, there were three (3) shots fired.
Later, he changed his testimony stating that there were four (4) shots fired.

4. Gemanel testified that after the shooting, he approached the victim then he went to his mother telling her that Castro was shot
without naming the assailant. He later testified that after the shooting, he went home to his mother and revealed to her the identity of
the assailant as Apolinar Dando. Then he went back to the scene of the crime and saw that policemen were already investigating the
incident. When asked by the police investigator, he told him right then and there that it was accused-appellant who shot the victim.

The foregoing inconsistencies are but minor details and they do not discredit the positive identification of accused-appellant as the
perpetrator of the crime. The testimony of Gemanel on the events that transpired on November 20, 1991 was clear, straightforward and
consistent. Thus:

Q: - On November 20, 1991, where were you?


A: - I was on Pandeo Street Siniloan, Laguna, sir.

Q: - In what particular place in Brgy. Pandeo?

A: - About the middle of that area, sir.

Q: - You were at the middle part of that area. Will you kindly tell to this Honorable Court your point of reference as to the place where
you were at the time?

A: - What I am saying is that I am at the middle of Pandeo Street, sir.


Q: - And when you said you were at the middle portion of Pandeo Street, will you tell this Honorable Court the nearest house where
you were at the time?


A: - Cesar Castro's house, sir.

Q: - And what are you doing then?

A: - None, sir, I was then going to my grandmother's house.

Q: - And were you able to proceed to the house of your grandmother?

A: - Yes, sir.

Q: - But prior to proceeding to the house of your "lola" did you go to any other place?

A: - Yes, sir.

Q: - Where?

A: - To my uncle Junior's house, sir, where there was a drinking spree.

Q: - Do you know why them was a drinking spree at the time?

A: - Yes, sir, it was my uncle Junior's birthday.

Q: - What was your purpose in going to the place of your uncle's birthday?

A: - I was going to look for my father, sir.

Q: - Did you. . .while you were there, by the way, where is the house of your uncle located?

A: - On Pandeo Street, sir.

Q: - How far from your house, how many houses apart?

A: - About 15 houses, sir.

Q: - What is the full name of your uncle Junior?

A: - Junior Millares, sir.

Q: - While you were there at the birthday celebration of your uncle Junior, what did you notice thereat?


A: - There was a firing of gun, sir.

Q: - Do you know the person who fired his gun at the time?

A: - Yes, sir, Polly Dando.

Q: - Do you know Polly Dando personally?

A: - Yes, sir.

Q: - Do you know the real name of Polly Dando?

A: - Yes, sir, Apolinario Dando.

Q: - Where did you see Apolinario Dando fired his gun?

A: - Under the table pointing downwards, sir.

Q: - Do you know the caliber used by Dando?


Incompetent, your Honor.


Objection noted, if he knows.


A: - Yes, sir.


Q: - Will you tell this Honorable Court the caliber?

A: - A .45 caliber, "yung lapad", sir.

Q: - Have you already seen a gun of that caliber?

A: - Yes, sir.

Q: - Where?

A: - On TV and on posters, sir.


Q: - After that, where did you go?

A: - I went to my grandmother, sir.

Q: - Where is the house of your grandmother located?

A: - Also an Pandeo Street, sir.

Q: - How far from the house of your uncle Junior?

A: - Three houses away, sir.

Q: - What did you do in the house of your lola?

A: - I entered the house, sir.

Q: - After that, what else happened?

A: - I went out, sir.

Q: - Where did you go?

A: - On the street, sir.

Q: - Were you alone at the time?

A: - Yes, sir.

Q: - While you were on the street, did you notice of any unusual incident?

A: - Yes, sir.

Q: - What was that incident?

A: - I saw Polly boarded a tricycle, sir.

Q: - When you said Polly Dando boarded a tricycle, you mean to say Dando went somewhere else?


A: - No, he merely sat on board a tricycle which was parked there, sir.

Q: - This tricycle has a driver?

A: - None, sir.

Q: - What else did you notice?

A: - I saw Polly Dando placed a handkerchief over his face, sir.



Q: - Do you know the color of the handkerchief?

A: - Yes, sir, white with small drawings.

Q: - Will you tell this Honorable Court the attire used by the accused Apolinario Dando?

A: - He was wearing a white polo shirt, sir, and a khaki pants.

Q: - After you saw Apolinar Dando sat on a tricycle and put a handkerchief on his face, what else happened?

A: - He merely rested for a short while, sir.

Q: - After that, what happened?

A: - I left, sir.

Q: - You mean to say after you saw Apolinar sat on a tricycle and put a handkerchief on his face and rested for a while, you went to
your lola's house?

A: - Yes, sir.

Q: - After that, where did you proceed?

A: - I merely stayed on the street, sir.

Q: - And again, while there on the street, did you again notice any unusual incident?

A: - Yes, sir.

Q: - What was that incident?

A: - Polly Dando got off the tricycle, sir.

Q: - Where did he go?

A: - Towards the plaza, sir.

Q: - And what did you do?

A: - I followed Polly, sir.

Q: - Up to what point did you follow him?

A: - About 2 houses, sir.

Q: - While following Dando, what happened next?

A - I entered a bakery, sir.

Q: - What was your purpose in going to that bakery?

A: - I was going to buy bread, sir.

Q: - Were you able to buy bread?

A: - No, sir.


Q: - Where did you proceed after that?

A: - I heard a shot, sir.

Q: - What did you do. . . .


I moved to strike out the answer for not being responsive.




Q: - While you were at the bakery, what else happened?


A: - I heard a shot, sir.

Q: - What shot did you hear?

A: - A gunshot, sir.

Q: - When you heard that gunshot, what did you do?

A: - I went beside the street, sir.

Q: - What did you find out?

A: - I saw Cesar Castro already sprawled on the ground, sir.

Q: - Was Cesar Castro alone at the time?

A: - Yes, sir.

Q: - And do you know what was the cause of Cesar's falling to the ground?


Incompetent, your Honor, he already saw Cesar already sprawled on the ground.


May answer. We will see the answer.


A: - No, sir.


Q: - At that precise moment when you heard the gunshot and you go (sic) to the street to find our where the shot came from, where was
Apolinar Dando at the time?


There is no testimony that Apolinar Dando was present at the time.


There was no testimony that Apolinar Dando was them. The fiscal was asking where was Apolinar at the time. He was not asking why
he was there. He did not assume.


A: - I saw him walked a few steps and then fired his gun at Cesar, on his side, sir.

Q: - After you saw Apolinar for the second time at the sprawled body of Cesar, what else happened?

A: - He ran and went towards an alley, "paraanan", sir.

On cross-examination, Gemanel gave substantially the same testimony:

Q: - In answer to the question of the Court in the last hearing, you said you saw Dando going to the plaza and you followed him far a
distance of about 2 houses, during the time you were following, did you meet any person?

A: - None, sir.

Q: - And during all the time that you were following Dando, was he wearing a handkerchief over his face?

A: - Yes, sir.

Q: - But you did not have much interest, that is why you stop following him and stopped at a bakery?

A: - Yes, sir.


Q: - And then you heard a shot?


A: - Yes, sir.

Q: - Exactly, where were you when you heard the first shot?

A: - In the bakery about to buy bread, sir.

Q: - Where were you facing?

A: - Towards the bakery, sir.

Q: - Was there anybody attending to you in the bakery?

A: - Yes, sir.

Q: - Now, you were merely waiting for bread that you would buy in that bakery?

A: - Yes, sir, when suddenly I heard a shot.

Q: - How many shots did you hear while you were in the bakery?

A: - First, I heard one shot so I went out of the bakery and I saw Ka Cesar being shot, sir.

Q: - How many shots in all did you hear?

A: - Three, sir.

Q: - What was the interval between the first and the second shot?

A: - First, I was inside the bakery when I heard a shot so I immediately went out and saw Dando firing two shots on Ka Cesar who was
already lying on the ground, sir.


Q: - You heard a shot and you went out and stopped at this point marked by an "x"?

A: - Yes, sir.

Q: - And it was only a gunshot that you heard?

A: - On that moment, one.

Q: - Just after the shot, did you not hear any person crying out in panic.

A: - Nobody, sir.


Q: - After that first shot, did you hear any other shot?

A: - I heard, Your Honor.


Q: - How many shots did you hear after hearing the first shot?

A: - Three to four shots, Your Honor.


I move that the last answer be placed in tagalog.

A: - "Mga tatlo o apat"

Q: - What did you say?

A: - "Tatlo po o apat".


But your first answer that I heard was "tatlo bale apat."

A: - Yes sir.


Q: - Did you know where the shots came from?

A: - Yes, Your Honor.

Q: - Where?

A: - From the house of Ka Cesar.


Q: - After hearing those shots, what did you observe, if any?

A: - The person with his handkerchief covering his face, was running and entered an alley, "paraanan".
Well-settled is the rule that "inconsistencies on minor and trivial matters only serve to strengthen rather than weaken the credibility of
witnesses for they erase the suspicion of rehearsed testimony." Moreover, the alleged inconsistencies refer only to inconsequential
details and not to the crux of the case that Gemanel saw accused-appellant gun down Castro. Gemanel never wavered on this point
even for a single moment. The consistency on the part of Gemanel in identifying accused-appellant as the perpetrator of the crime
makes him a credible witness. His testimony cannot be discredited by a mere alibi and denial on the part of accused-appellant.

Alibi is one of the weakest defenses in criminal cases and it should be rejected when the identity of the accused is sufficient and
positively established by the prosecution. Moreover, in order to overcome the evidence of the prosecution, the accused must establish
not only that he was somewhere else when the crime was committed but also that it was physically impossible for him to have been at
the scene of the crime at the time it was committed. In the present case, accused-appellant failed to show that it was physically
impossible for him to be at the scene of the crime when it was committed. He even admitted that his house was only about one-and-a-
half kilometers away from the house of Millares, which was very near the place where Castro was shot to death. Undoubtedly, the
distance did not render it impossible for accused-appellant to be at the scene of the crime at the time it was committed. Accused-
appellant's defense of alibi must necessarily fail.

As to the alleged inconsistency between the testimonies of Gemanel and that of Millares, we find the testimony of Gemanel to be more
credible since the inconsistency lies in the affidavit and testimony of Millares himself. In his affidavit, Millares averted that he fired the
gun first and then accused-appellant fired the gun twice. In his testimony in court, however, he (Millares) claimed that after firing the
gun, he gave the gun to Agustin Salinas. Confronted with the inconsistent statements of Millares and the straightforward and
categorical testimony of Gemanel, which was corroborated by that of Susana Masacupan, this Court believes and gives credence to the

When he testified in court, Gemanel was then only thirteen (13) years old and a second year high school student at Siniloan Public
Highhool. Indeed "the testimony of a child of sound mind is likely to be more correct and truthful than that of older persons, so that once
established that he has fully understood the character and nature of an oath, his testimony should be given full credence.

In the second and third issues raised in his brief, accused-appellant opines that there is no proof showing that the empty shells and
slugs recovered at the scene of the crime were the same empty shells and slugs submitted for ballistic examination. According to
accused-appellant, the relatives of the victim tampered with these pieces of evidence making the same tainted or polluted, therefore,

Other than these bare allegations, however, accused-appellant failed to prove by convincing evidence any irregularity in the handling by
the police officers of these particular pieces of evidence. The ballistic examination report is thus clothed with the presumption of
regularity. At any rate, the presentation of weapons (or the slugs and bullets, as in this case) used and ballistic examination are not
prerequisites for conviction. The corpus delicti and the positive identification of accused-appellant as the perpetrator of the crime are
more than enough to sustain his conviction.

Anent the fifth issue, accused-appellant contends that the trial court erred in convicting him for murder and awarding in favor of the
victim's heirs the sum of P1,620,000.00 for his loss of earning capacity and other damages.

Art. 248 of the Revised Penal Code reads:

Art. 248. Murder. Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be
punished by reclusion temporal in its maximum period to death if committed with any of the following circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of
means or persons to insure or afford impunity.


5. With evident premeditation.


The essence of treachery is that the attack comes without a warning and in a swift, deliberate and unexpected manner, affording the
hapless, unarmed and unsuspecting victim no chance to resist or escape. In this case, accused-appellant, whose face was covered
by a handkerchief; approached the victim, who was merely standing by the gate in front of his house, and shot him. The victim was
undoubtedly caught unaware and had no chance of putting up any defense. Clearly, treachery attended the commission of the crime
since the attack, although frontally, was no less sudden and unexpected, giving the victim no opportunity to repel it or offer any defense
of his person.

The trial court further established that there was evident premeditation and that accused-appellant used "craft, fraud or disguise" in
committing his dastardly act:
. . . When DANDO (accused-appellant) boarded the tricycle parked in front of the residence of Angelito Millares, Jr., he did so not to
rest or sleep there. He was there, with a handkerchief over his face, lying in wait for Cesar Castro to come out and stand by the gate of
his house as he customarily did while taking a rest. And DANDO stayed inside the tricycle for a couple of hours, like an eagle waiting
for its prey. From the parked tricycle, DANDO could clearly see the gate of Cesar Castro's house, 100 to 150 meters away. DANDO'S
stay inside the tricycle lasted for about two (2) hours, a sufficient time for him to reflect on the consequences of his plan to kill Cesar
Castro. And when Cesar Castro did finally come out, and stood there unarmed by the gate of his house, DANDO swiftly swooped down
on his prey and triggered the burst from his service firearm which snuffed the life of his victim.

Given the foregoing attendant aggravating circumstances, the trial court properly sentenced accused-appellant to suffer the penalty of
reclusion perpetua. However, the amount it awarded in favor of the heirs of the victim should be modified in accordance with prevailing

The trial court correctly awarded the amount of P50,000 as indemnity for the death for Cesar Castro. Said amount is awarded without
need of further proof other than the death of the victim. In addition, the heirs are also entitled to receive a compensation for the loss of
earning capacity of the victim. The formula for computing the same as established in decided cases is as follows:

Net Earning Capacity = Life Expectancy x Gross Annual Income - Necessary Living Expenses

The life expectancy is equivalent to two thirds (2/3) multiplied by the difference of 80 and the age of the deceased. Since Castro was
47 years old at the time of his death, his life expectancy was 22 more years. Celso Castro testified that his father earned P3,000.00
monthly or P36,000.00 annually from the sash factory. In addition, the victim's annual income from farming, as found by the trial court,
was P53,000.00. The gross annual income of the deceased was P89,000.00. Allowing for necessary living expenses of fifty percent
(50%) of his gross earnings, his total net earning capacity amounts to P979,000.00.

As to the expenses actually incurred by the family of the victim for the wake and burial, Celso Castro was able to prove during trial that
they incurred the sum of P39,974.00. The amount of P35,974.00 awarded by the trial court as reimbursement of funeral expenses is,
accordingly, increased to P39,974.00.

WHEREFORE, premises considered, the decision of the trial court is hereby AFFIRMED with MODIFICATION that accused-appellant
shall pay the heirs of the victim the following amounts:

1. death indemnity in the amount of P50,000.00;

2. compensation for loss of earning capacity in the amount of P979,000.00; and

3. reimbursement of funeral expenses in the amount of P39,974.00.


People vs Narvaez
FACTS: Mamerto Narvaez has been convicted of murder (qualified by treachery) of David Fleischer and Flaviano Rubia. On August 22,
1968, Narvaez shot Fleischer and Rubia during
the time the two were constructing a fence that would prevent Narvaez from getting into his house and rice mill. The defendant was
taking a nap when he heard sounds of construction and
found fence being made. He addressed the group and asked them to stop destroying his house and asking if they could talk things
over. Fleischer responded with "No, gadamit, proceed, go
ahead." Defendant lost his "equilibrium," and shot Fleisher with his shotgun. He also shot Rubia who was running towards the jeep
where the deceased's gun was placed. Prior to the
shooting, Fleischer and Co. (the company of Fleischer's family) was involved in a legal battle with the defendant and other land settlers
of Cotabato over certain pieces of property. At the time
of the shooting, the civil case was still pending for annulment (settlers wanted granting of property to Fleisher and Co. to be annulled).
At time of the shooting, defendant had leased his
property from Fleisher (though case pending and ownership uncertain) to avoid trouble. On June 25, defendant received letter
terminating contract because he allegedly didn't pay rent.
He was given 6 months to remove his house from the land. Shooting was barely 2 months after letter. Defendant claims he killed in
defense of his person and property. CFI ruled that
Narvaez was guilty. Aggravating circumstances of evident premeditation offset by the mitigating circumstance of voluntary surrender.
For both murders, CFI sentenced him to reclusion perpetua, to indemnify the heirs, and to pay for moral damages.

1. Whether or not CFI erred in convicting defendant-appellant despite the fact that he acted in defense of his person.

No. The courts concurred that the fencing and chiselling of the walls of the house of the defendant was indeed a form of aggression on
the part of the victim. However, this
aggression was not done on the person of the victim but rather on his rights to property. On the first issue, the courts did not err.
However, in consideration of the violation of property rights, the courts referred to Art. 30 of the civil code recognizing the right of
owners to close and fence their land.

Although is not in dispute, the victim was not in the position to subscribe to the article because his ownership of the land being awarded
by the government was still pending, therefore putting ownership into question. It is accepted that the victim was the original aggressor.

2. WON the court erred in convicting defendant-appellant although he acted in defence of his rights.

Yes. However, the argument of the justifying circumstance of self-defense is applicable only if the 3 requirements are fulfilled. Art. 11(1)
RPC enumerates these requisites:

Unlawful aggression. In the case at bar, there was unlawful aggression towards appellant's property rights. Fleisher had given
Narvaez 6 months and he should have left him in peace before time was up, instead of chiseling Narvaez's house and putting
up fence. Art. 536 of the Civil Code also provides that possession may not be acquired through force or intimidation; while Art.
539 provides that every possessor has the right to be respected in his possession
Reasonable necessity of means employed to prevent or repel attack. In the case, killing was disproportionate to the attack.
Lack of sufficient provocation on part of person defending himself. Here, there was no provocation at all since he was asleep

Since not all requisites present, defendant is credited with the special mitigating circumstance of incomplete defense, pursuant to Art.
13(6) RPC. These mitigating circumstances are: voluntary surrender and passion and obfuscation (read p. 405 explanation) Crime is
homicide (2 counts) not murder because treachery is not applicable on account of provocation by the deceased. Also, assault was not
deliberately chosen with view to kill since slayer acted instantaneously. There was also no direct evidence of planning or preparation to
kill. Art. 249 RPC: Penalty for homicide is reclusion temporal. However, due to mitigating circumstances and incomplete defense, it can
be lowered three degrees (Art. 64) to arrestomayor.

3. WON he should be liable for subsidiary imprisonment since he is unable to pay the civil indemnity due to the offended party.

No. He is not liable to be subsidiarily imprisoned for nonpayment of civil indemnity. RA 5465 made the provisions of Art. 39 applicable
to fines only and not to reparation of damage caused, indemnification of consequential damages and costs of proceedings. Although it
was enacted only after its conviction, considering that RA 5465 is favorable to the accused who is not a habitual delinquent, it may be
given retroactive effect pursuant to Art. 22 of the RPC.

Judgment: Defendant guilty of homicide but w/ mitigating circumstances and extenuating circumstance of incomplete self defense.
Penalty is 4 months arresto mayor and to indemnify
each group of heirs 4,000 w/o subsidiary imprisonment and w/o award for moral damages. Appellant has already been detained 14
years so his immediate release is ordered.

Gutierrez, dissenting. Defense of property can only be invoked when coupled with form of attack on person defending property. In the
case at bar, this was not so. Appellant should then be sentenced to prision mayor. However, since he has served more than that, he
should be released.

People vs Alconga
On the night of May 27, 1943, in the house of one Mauricio Jepes in the Municipality of San Dionisio, Province of Iloilo several persons
were playing prohibited games (t.s.n., pp. 95, 125). The deceased Silverio Barion was the banker in the game of black jack, and Maria
de Raposo, a witness for the prosecution, was one of those playing the game (t.s.n., p. 95). Upon invitation of the said Maria de
Raposo, the accused Dioscoro Alconga joined her as a partner, each of them contributing the sum of P5 to a common fund (t.s.n., pp.
95, 125). Maria de Raposo played the game while the said accused posted himself behind the deceased, acting as a spotter of the
cards of the latter and communicating by signs to his partner (t.s.n., pp. 95-96, 126). The deceased appears to have suffered losses in
the game because of the team work between Maria de Raposo and the accused Alconga (t.s.n., pp. 96, 126). Upon discovering what
the said accused had been doing, the deceased became indignant and expressed his anger at the former (t.s.n., pp. 96, 126). An
exchange of words followed, and the two would have come to blows but for the intervention of the maintainer of the games (t.s.n., p.
96). In a fit of anger, the deceased left the house but not before telling the accused Alconga, "tomorrow morning I will give you a
breakfast" (t.s.n., p. 96), which expression would seem to signify an intent to inflict bodily harm when uttered under such circumstances.

The deceased and the accused Alconga did not meet thereafter until the morning of May 29, 1943, when the latter was in the
guardhouse located in the barrio of Santol, performing his duties as "home guard" (t.s.n., pp. 98-100). While the said accused was
seated on a bench in the guardhouse, the deceased came along and, addressing the former, said, "Coroy, this is your breakfast,"
followed forthwith by a swing of his "pingahan" (t.s.n., p. 100). The accused avoided the blow by falling to the ground under the bench
with the intention to crawl out of the guardhouse (t.s.n., pp. 100-101). A second blow was given but failed to hit the accused, hitting the
bench instead (t.s.n., p. 101). The accused manage to go out of the guardhouse by crawling on his abdomen (t.s.n., p. 101). While the
deceased was in the act of delivering the third blow, the accused, while still in a crawling position (t.s.n., p. 119), fired at him with his
revolver, causing him to stagger and to fall to the ground (t.s.n., p. 101). Rising to his feet, the deceased drew forth his dagger and
directed a blow at the accused who, however, was able to parry the same with his bolo (t.s.n., pp. 101-102). A hand-to-hand fight
ensued (t.s.n., p. 102). Having sustained several wounds, the deceased ran away but was followed by the accused (t.s.n., p. 6). After
running a distance of about 200 meters (t.s.n., pp. 21, 108), the deceased was overtaken, and another fight took place, during which
the mortal bolo blow the one which slashed the cranium was delivered, causing the deceased to fall to the ground, face
downward, besides many other blows deliver right and left (t.s.n., pp. 6, 28). At this instant, the other accused, Adolfo Bracamonte,
arrived and, being the leader of the "home guards" of San Dionisio, placed under his custody the accused Alconga with a view to
turning him over to the proper authorities (t.s.n., pp. 102-105).

On their way to San Dionisio, the two accused were stopped by Juan Collado, a guerrilla soldier (t.s.n., pp. 80, 104). Adolfo
Bracamonte turned over Alconga to Collado who in turn took him to the headquarters (t.s.n., pp. 81, 104). In the afternoon of the same
day, Collado delivered Alconga to Gregorio Barredo, a municipal policeman of San Dionisio, together with the weapons used in the
fight: a revolver, a bolo, and a dagger (t.s.n., pp. 81, 104).

The injuries sustained by the deceased were described by police sergeant Gil G. Estaniel as follows:

P. Y que hicieron ustedes cuando ustedes vieron a Silverio Barion? R. Examine sus heridas.

P. Donde ha encontrado usted las heridas, en que parte del cuerpo? R. En la cabeza, en sus brazos, en sus manos, en la
mandibula inferior, en la parte frente de su cuello, en su pecho derecho, y tambien en el pecho izquierdo, y su dedo meique
habia volado, se habia cortado, y otras perqueas heridas mas.

P. En la cabeza, vio usted heridas? R. Si, seor.

P. Cuantas heridas? R. Una herida en la region parietal derecha y una contusion en la corona de la cabeza.

P. Vio usted el craneo? R. En la craneo llevaba una herida, en quel el craneo se ha roto.

P. En el pecho, herida ha encontrado usted? R. Debajo de la tetilla derecha, una herida causada por una bala.

P. Y otras heridas en el pecho, puede usted decir que clase de heridas? R. Heridas causadas por bolo.

P. Como de grande acquellas heridas en el pecho? R. No recuerdo la dimension de las heridas en el pecho.

P. Pero en la cabeza? R. La cabeza se rajo por aquella herida causada por el bolo. (T.s.n., p. 25.)

It will be observed that there were two stages in the fight between appellant and the deceased. The initial stage commenced when the
deceased assaulted appellant without sufficient provocation on the part of the latter. Resisting the aggression, appellant managed to
have the upper hand in the fight, inflicting several wounds upon the deceased, on account of which the latter fled in retreat. From that
moment there was no longer any danger to the life of appellant who, being virtually unscathed, could have chosen to remain where he
was. Resolving all doubts in his flavor, and considering that in the first stage the deceased was the unlawful aggressor and defendant
had not given sufficient provocation, and considering further that when the deceased was about to deliver the third blow, appellant was
still in a crawling position and, on that account, could not have effectively wielded his bolo and therefore had to use his "paltik" revolver
his only remaining weapon ; we hold that said appellant was then acting in self-defense.

But when he pursued the deceased, he was no longer acting in self-defense, there being then no more aggression to defend against,
the same having ceased from the moment the deceased took to his heels. During the second stage of the fight appellant inflicted many
additional wounds upon the deceased. That the deceased was not fatally wounded in the first encounter is amply shown by the fact that
he was still able to run a distance of some 200 meters before being overtaken by appellant. Under such circumstances, appellant's plea
of self-defense in the second stage of the fight cannot be sustained. There can be no defense where there is no aggression.

Although the defendant was not the aggressor, he is not exempt from criminal liability for the reason that it is shown that he
struck several blows, among them the fatal one, after the necessity for defending himself had ceased, his assailant being then
in retreat. Therefore one of the essential ingredients of self-defense specified in No. 4, article 8 of the Penal Code is wanting
(now article 11, case No. 1, Revised Penal Code). (United States vs. Dimitillo, 7 Phil., 475, 476; words in parenthesis

. . . Even if it be conceded for the moment that the defendants were assaulted by the four (offended parties), the right to kill in
self-defense ceased when the aggression ceased; and when Toledo and his brothers turned and ran, without having inflicted
so much as a scratch upon a single one of the defendants, the right of the defendants to inflict injury upon them ceased
absolutely. They had no right to pursue, no right to kill or injure. A fleeing man is not dangerous to the one from whom he flees.
When danger ceases, the right to injure ceases. When the aggressor turns and flees, the one assaulted must stay his hand.
(United States vs. Vitug, 17 Phil., 1, 19; emphasis supplied.)
Upon the foregoing facts, we hold that appellant's guilt of the crime of homicide has been established beyond reasonable doubt. The
learned trial court appreciated in his favor of two mitigating circumstances: voluntary surrender and provocation on the part of the
deceased. The first was properly appreciated; the second was not, since it is very clear that from the moment he fled after the first
stage of the fight to the moment he died, the deceased did not give any provocation for appellant to pursue much less further to attack

The only provocation given by him was imbibed in, and inseparable from, the aggression with which he started the first stage of the
fight. The evidence, as weighed and appreciated by the learned trial judge, who had heard, seen and observed the witnesses testify,
clearly shows that said stage ended with the flight of the deceased after receiving a bullet wound in his right breast, which caused him
to stagger and fall to the ground, and several bolo wounds inflicted by appellant during their hand-to-hand fight after both had gotten up.
The learned trial judge said:

The evidence adduced by the prosecution and the defense in support of their respective theories of the case vary materially on
certain points. Some of these facts have to be admitted and some have to be rejected with the end in view of arriving at the
truth. To the mind of the Court, what really happened in the case at bar, as can de disclosed by the records, which lead to the
killing of the deceased on that fatal morning of May 29, 1945 (should be 1943), is as follows:

xxx xxx xxx

In the morning of May 29, 1943, while Dioscoro Alconga was alone in the guardhouse performing his duties as guard or
"ronda" in Barrio Santol, the deceased Silverio Barion passed by with a "pingahan". That was the first time the deceased and
the accused Alconga had met since that eventful night of May 27th in the gambling house of Gepes. Upon seeing the accused
Alconga, who was then seated in the guardhouse, the deceased cried: "Coroy, this is now the breakfast!" These words of
warning were immediately followed by two formidable swings of the "pingahan" directed at the accused Alconga which failed to
hit him. Alconga was able to avoid the blows by falling to the ground and crawling on his abdomen until he was outside the
guardhouse. The deceased followed him and while in the act of delivering the third blow, Dioscoro Alconga fired at him with his
revolver thereby stopping the blow in mid-air. The deceased fell to the ground momentarily and upon rising to his feet, he drew
forth a dagger. The accused Alconga resorted to his bolo and both persons being armed, a hand-to-hand fight followed. The
deceased having sustained several wounds from the hands of Alconga, ran away with the latter close to his heels.

The foregoing statement of the pertinent facts by the learned trial judge is in substantial agreement with those found by us and narrated
in the first paragraphs of this decision. Upon those facts the question arises whether when the deceased started to run and flee, or
thereafter until he died, there was any provocation given by him from appellant to pursue and further to attack him. It will be recalled, to
be given with, that the first stage of the fight was provoked when the deceased said to appellant "Cory, this is now the breakfast," or
"This is your breakfast," followed forthwith by a swing or two of his "pingahan." These words without the immediately following attack
with the "pingahan" would not have been uttered, we can safely assume, since such an utterance alone would have been entirely
meaningless. It was the attack, therefore, that effectively constituted the provocation, the utterance being, at best, merely a preclude to
the attack. At any rate, the quoted words by themselves, without the deceased's act immediately following them, would certainly not
have been considered a sufficient provocation to mitigate appellant's liability in killing or injuring the deceased. For provocation in order
to be a mitigating circumstance must be sufficient and immediately preceding the act. (Revised Penal Code, article 13, No. 4.)

Under the doctrine in United States vs. Vitug, supra, when the deceased ran and fled without having inflicted so much as a scratch
upon appellant, but after, upon the other hand, having been wounded with one revolver shot and several bolo slashes, as aforesaid, the
right of appellant to inflict injury upon him, ceased absolutely appellant "had no right to pursue, no right to kill or injure" said
deceased for the reason that "a fleeing man is not dangerous to the one from whom he flees." If the law, as interpreted and applied
by this Court in the Vitug case, enjoins the victorious contender from pursuing his opponent on the score of self-defense, it is because
this Court considered that the requisites of self-defense had ceased to exist, principal and indispensable among these being the
unlawful aggression of the opponent (Rev. Penal Code, article 11, No. 1; 1 Viada, 5th ed., 173).

Can we find under the evidence of record that after the cessation of said aggression the provocation thus involved therein still persisted,
and to a degree sufficient to extenuate appellant's criminal responsibility for his acts during the second stage of the fight? Appellant did
not testify nor offer other evidence to show that when he pursued the deceased he was still acting under the impulse of the effects of
what provocation, be it anger, obfuscation or the like. The Revised Penal Code provides:

ART. 13. Mitigating circumstances:

xxx xxx xxx

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

It is therefore apparent that the Code requires for provocation to be such a mitigating circumstance that it not only immediately precede
the act but that it also be sufficient. In the Spanish Penal Code, the adjective modifying said noun is "adecuada" and the Supreme Court
of Spain in its judgment of June 27, 2883, interpreted the equivalent provision of the Penal Code of that country, which was the source
of our own existing Revised Penal Code, that "adecuada" means proportionate to the damage caused by the act. Viada (Vol. 11, 5th
ed., p. 51) gives the ruling of that Supreme Court as follows:
El Tribunal Supremo ha declarado que la provocacion o amenaza que de parte del ofendido ha de preceder para la
disminucion de la responsabilidad criminal debe ser proporcionada al dao que se cause, lo cual no concurre a favor del reo
si resulta que la unica cuestion que hubo fue si en un monton de yeso habia mas omenos cantidad, y como perdiera la
apuesta y bromeando dijera el que la gano que beberia vino de balde, esa pequea cuestion de amor propio no justificaba en
modo alguno la ira que le impelio a herir y matar a su contrario. (S. de 27 de junio de 1883, Gaceta de 27 de septiembre.)

Justice Albert, in his commentaries on the Revised Penal Code, 1946 edition, page 94, says: "The provocation or threat must be
sufficient, which means that it should be proportionate to the act committed and adequate to stir one to its commission" (emphasis

Sufficient provocation, being a matter of defense, should, like any other, be affirmatively proven by the accused. This the instant
appellant has utterly failed to do. Any way, it would seem self-evident that appellant could never have succeeded in showing that
whatever remained of the effects of the deceased's aggression, by way of provocation after the latter was already in fight, was
proportionate to his killing his already defeated adversary.

That provocation gave rise to a fight between the two men, and may be said, not without reason, to have spent itself after appellant had
shot the deceased in his right breast and caused the latter to fall to the ground; or making a concession in appellant's favor after
the latter had inflicted several bolo wounds upon the deceased, without the deceased so much as having scratched his body, in their
hand-to-hand fight when both were on their feet again. But if we are to grant appellant a further concession, under the view most
favorable to him, that aggression must be deemed to have ceased upon the flight of the deceased upon the end of the first stage of
the fight. In so affirming, we had to strain the concept in no small degree. But to further strain it so as to find that said aggression or
provocation persisted even when the deceased was already in flight, clearly accepting defeat and no less clearly running for his life
rather than evincing an intention of returning to the fight, is more than we can sanction. It should always be remembered that "illegal
aggression is equivalent to assault or at least threatened assault of an immediate and imminent kind.

Agresion ilegitima. Agresion vale tanto como acometimiento. Para que exista el derecho de defensa es preciso que se nos
acometa, que se nos ataque, o cuando menos, que se nos amenace de atacarnos de un modo inmediato e inminente; v. gr.,
desenvainando el pual para herirnos con el o apuntando la pistola para dispararla contra nosotros. (Viada, 5. a edicion, 173.)

After the flight of the deceased there was clearly neither an assault nor a threatened assault of the remotest kind. It has been
suggested that when pursuing his fleeing opponent, appellant might have thought or believed that said opponent was going to his
house to fetch some other weapon. But whether we consider this as a part or continuation of the self-defense alleged by appellant, or
as a separate circumstance, the burden of proof to establish such a defense was, of course, upon appellant, and he has not so much
as attempted to introduce evidence for this purpose. If he really thought so, or believed so, he should have positively proven it, as any
other defense. We can not now gratuitously assume it in his behalf.

It is true that in the case of United States vs. Rivera (41 Phil., 472, 474), this Court held that one defending himself or his property from
a felony violently or by surprise threatened by another is not obliged to retreat but may pursue his adversary until he has secured
himself from danger. But that is not this case. Here from the very start appellant was the holder of the stronger and more deadly
weapons a revolver and a bolo, as against a piece of bamboo called "pingahan" and a dagger in the possession of the deceased. In
actual performance appellant, from the very beginning, demonstrated his superior fighting ability; and he confirmed it when after the
deceased was first felled down by the revolver shot in right breast, and after both combatants had gotten up and engaged in a hand-to-
hand fight, the deceased using his dagger and appellant his bolo, the former received several bolo wounds while the latter got through
completely unscathed. And when the deceased thereupon turned and fled, the circumstances were such that it would be unduly
stretching the imagination to consider that appellant was still in danger from his defeated and fleeing opponent. Appellant preserved his
revolver and his bolo, and if he could theretofore so easily overpower the deceased, when the latter had not yet received any injury, it
would need, indeed, an unusually strong positive showing which is completely absent from the record to persuade us that he had
not yet "secured himself from danger" after shooting his weakly armed adversary in the right breast and giving him several bolo slashes
in different other parts of his body. To so hold would, we believe, be unjustifiably extending the doctrine of the Rivera case to an
extreme not therein contemplated.

Under article 249, in relation with article 64, No. 2, of the Revised Penal Code, the crime committed by appellant is punishable by
reclusion temporal in its minimum period, which would be from 12 years and 1 day to 14 years and 8 months. However, in imposing the
penalty, we take into consideration the provisions of section 1 of the Indeterminate Sentence Law (Act No. 4103), as amended by Act
No. 4225. Accordingly, we find appellant guilty of the aforesaid crime of homicide and sentence him to an indeterminate penalty of from
6 years and 1 day of prision mayor to 14 years and 8 months of reclusion temporal, to indemnify the heirs of the deceased in the sum of
P2,000, and to pay the costs.

As thus modified, the judgment appealed from is hereby affirmed. So ordered.

Pablo, Bengzon, Briones, Hontiveros, Padilla, and Tuason, JJ., concur.

I certify that Mr. Justice Feria concurs in this decision.

Separate Opinions

PARAS, J., dissenting :

I agree to the statement of facts in so far as it concern what is called by the majority the first stage of the fight. The following narration
dealing with the second stage is not however, in accordance with the record: "Having sustained several wounds, the deceased ran
away but was followed by the accused (t.s.n. p. 6). After running a distance of about 200 meters (t.s.n. pp. 21, 108), the deceased was
overtaken, and another fight took place, during which the mortal bolo blow the one which slashed the cranium was delivered,
causing the deceased to fall to the ground, face downward besides many other blows delivered right and left (t.s.n. pp. 6, 28)."

It should be noted that the testimony of witness Luis Ballaran for the prosecution has been completely discarded by the lower court and
we can do no better in this appeal. Had said testimony been given credit, the accused-appellant would appear to have been the
aggressor from the beginning, and the facts constitute of the first stage of the fight, as testified to by said accused, should not have
been accepted by the lower court. Now, continuing his testimony, the accused stated: "Cuando yo paraba las pualadas el se
avalanzaba hacia mi y yo daba pasos atras hasta llegar al terreno palayero (t.s.n., p. 102). Y mientras el seguia avalanzandome
dandome pualadas y yo seguia dando pasos atras, y al final, cuando el ya quiso darme una pualada certera con fuerza el se cayo al
suelo por su inercia (t.s.n., p. 102). Si, seor, yo daba pasos atras y tratando de parar la pualada (t.s.n., p. 108)."

It thus shown that the accused never pursued the deceased. On the contrary, the deceased tried to continue his assault started during
the first stage of the fight, and the accused had been avoiding the blows by stepping backward.

There may be error as to the exact distance between the guardhouse and the place where the deceased fell. What is very clear is that it
was during the first stage of the fight that the deceased received a wound just below the right chest, caused by a bullet that penetrated
and remained in said part of the body. According to the witness for the prosecution, that wound was also fatal.

Since the lower court by its decision has considered the testimony of the witnesses for the prosecution to be unworthy of credit, and, as
we also believe that said witnesses were really not present at the place and time of the occurrence, this Court is bound by the testimony
of the witnesses for the defense as to what in fact happened, under and by which the appellant is shown to have acted in self-defense.

Wherefore, he should be acquitted.

PERFECTO, J., dissenting:

Four witnesses testified for the prosecution. In synthesis their testimonies are as follows: Luis Ballaran. On May 29, 1943, at about 9
o'clock a.m., while the two accused Dioscoro Alconga and Rodolfo Bracamonte were in search for home guards, Silverio Barion passed
by. Alconga invited him for breakfast. But Barion ran and Alconga followed him. When Barion looked back, Bracamonte hit him with a
stick at the left temple. The stick was of bahi. Barion fell down. Alconga stabbed him with his bolo. Then he fired with his paltik. After
having been fired at with the paltik, Barion rose up and ran towards his house. The two accused pursued him. Alconga stabbed him
right and left and Bracamonte hit him with his bahi. When Barion breathed no more, the two accused went to the municipal building of
San Dionisio. The witness went home without approaching Barion. During the whole fight, the witness remained standing in the home
guard shed. At the time there were no other people in the place. The witness is an uncle of the deceased Barion. The shed was about
half a kilometer from the farm in which the witness was working. The place where Barion fell was about the middle between the two
places. The witness did not intervene in the incident nor shouted for help. He did not tell anybody of the incident, neither the chief of
police, the fiscal, nor the justice of the peace.

Gil G. Estaniel, Police Sergeant of San Dionisio. He went in the company of the justice of the peace to the place of the incident. He
saw the body of the deceased Barion and examined his wounds. The deceased had wounds in the head, arms, hands, lower jaw, neck,
chest. The small finger of his right hand was severed. There were other wounds. The cranium was broken. At the right side of the chest
there was a gunshot wound. After the inspection, the body of the deceased was delivered to the widow. The accused were arrested, but
refused to testify.

Ruperto L. Libres, acting clerk of court since May 16, 1943. He received one paltik with blank cartridge, one bolo, one cane of bahi
and one dagger, which weapons he could not produce save the paltik. The other effects were missing due to transfers caused by
frequent enemy penetration in Dingle. The bolo was a rusty working bolo. The dagger was 6 inches long, made of iron. The bolo was 1
1/2 feet long. The bahi was a cane of average length, about 2 inches wide and 3/4 of an inch thick.

Maria de Raposo. On May 29, 1943, the witness was walking following Silverio Barion. When the latter passed in front of the home
guard shed, Bracamonte pursued him and hit him with the bahi. Barion fell down; Alconga approached him and stabbed him with his
bolo, after which he shot him with his paltik. When Barion saw that the accused were looking at Luis Ballaran he rose up and ran
towards a ricefield where he fell down. The accused pursued him and stabbed him right and left. When Barion died, the accused went
away. Bracamonte shouted that he was ready to face the relatives of the deceased who might feel aggrieved. The witness was about
twenty meters from the place of the incident. The deceased was her cousin. The witness also passed in front of the shed, but does not
know whether Luis Ballaran who was in the shed was able to see her. She passed at about three meters from Luis Ballaran. Before
Bracamonte delivered the first blow to Barion, the witness did not hear any exchange of words. When Barion fell, the witness remained
standing at the canal of the road about twenty meters from Ballaran. On Thursday night, May 27, there was gambling going on in the
house of Mauricio Gepes. The witness played black jack with Dioscoro Alconga against Silverio Barion.

The two accused and three witnesses testified for the defense, and their testimonies are synthesized as follows:

Juan Collado. The witness is a soldier who took part in the arrest of Dioscoro Alconga, whom he delivered to Barredo with a
revolver, a bolo and a dagger.

Felix Dichosa. In the morning of May 29, 1943, the witness was in the home guard shed. When Bioy (Silverio Barion) was about to
arrive at the place, the witness asked him if he had fish. He answered no and then went on his way. The witness went to the road and
he heard Bioy saying: "So you are here, lightning! Your hour has come." The witness saw Bioy striking Dioscoro Alconga with the lever
he used for carrying fish. Alconga was not hit. Bioy tried to strike him again, but Alconga sought cover under the bench of the shed. The
bench was hit. When Bioy pursued him and gave him a blow with a bolo, the witness heard a gunshot and he saw Bioy falling down.
Upon falling in a sitting position, Bioy took a dagger with the purpose of stabbing Alconga. Upon seeing this, Alconga stabbed Barion
right and left, while Barion was coming against Alconga. When Barion fell into the canal, the witness shouted for help. Rodolfo
Bracamonte and Dalmacio Mendoza came. When the witness came out from the shed and was at a distance of ten brazas, he saw
Ballaran, and requested him to intervene in the fight, because the witness felt that Bioy was about to kill Alconga. Ballaran went to their
shed and the witness went to his house. At noon, Ballaran went to the house of the witness to ask him to testify and gave him
instructions to testify differently from what actually had happened. The witness told him that it would be better if Ballaran himself should
testify and Ballaran answered: "I cannot because I was not present. You can testify better because you were present. I will go down to
look for another witness."

Dalmacio Mendoza. On the morning of May 29, 1943, he went to the house of Rodolfo Bracamonte to borrow a small saw and one
auger. While the witness was conversing with Bracamonte, a gunshot was fired. Bracamonte announced that he was going to the home
guard shed and stated: "That Coroy is a fool, because he fired a revolver which has but one bullet." The witness followed. Upon
reaching the shed they saw Felix Dichosa, who said that Bracamonte and the witness should hurry because Coroy was to be killed by
Bioy. The witness saw Bioy falling. In front of him was Alconga who took a dagger from the ground. The dagger was in Barion's hand
before he fell. Bracamonte asked Alconga: "Coroy, what did you do to Silverio?" Alconga answered: "I killed Bioy, because if I did not
he would have killed me. My shirt was pierced by the dagger, and if I did not evade I would have been hit." Bracamonte said: "Go to
town, to the authority, I will accompany you." After leaving the place, Alconga, Bracamonte and the witness met Luis Ballaran who
asked: "Rodolfo, what happened to the boys?" Rodolfo answered: "Go and help Bioy because I am going to bring Coroy to the town
officer." Ballaran went to the place where Barion was lying, while Alconga and Bracamonte went to town.

Adolfo Bracamonte. His true name is Adolfo and not Rodolfo as stated in the information, which was amended accordingly. He belies
the testimonies of Luis Ballaran and Maria de Raposo. At about 7 o'clock a.m. on May 29, 1943, he went to the home guard shed, he
being the leader. When he found it without guards, he called Alconga to mount guard and delivered to him the paltik Exhibit A. The
witness returned home to take breakfast. Dalmacio Mendoza came to borrow a small saw and auger, because the witness is also a
carpenter. He heard a gunshot, and he went to the shed, followed by Dalmacio. When they were approaching the shed, Felix Dichosa
shouted: "Come in a hurry, because Bioy is going to kill Dioscoro Alconga." The witness asked: "Where are they?" Dichosa showed the
place. The witness went towards the place and he saw two persons fighting. One fell down. Upon seeing Barion falling, the witness
shouted to Alconga: "What happened to you?" Alconga answered: "Manoy, I stabbed Bioy, because if I did not he was to kill me,"
showing his shirt. When Barion fell down the witness saw him with a dagger. Upon meeting him coming from the opposite direction,
Ballaran addressed Bracamonte: "Rodolfo, what happened?" "Bioy is in the rice land. Help him because I am going to bring Dioscoro to
the town and I will return immediately." Ballaran went to the place where Barion fell. On the way, Alconga was taken by soldier Juan
Collado who later brought him to the town of San Dionisio. The witness did not carry at the time of the incident any cane of bahi nor did
he carry one on other occasions. The occupation of the deceased was selling fish and he used to take much tuba. He was of
aggressive character and sturdier than Alconga. Once, Barion gave a fist blow to the witness and on another occasion stabbed him with
a bolo, wounding him in the head. For such stabbing, Barion was held in prison for one month.

Dioscoro Alconga. On May 27, Thursday, at night, he went to gamble in the house of Mauricio Gepes. Mahjong, poker, monte and
black jack were being played in the house. Maria de Raposo invited Alconga to be her partner in black jack against Barion who was
then the banker. Each put a share of P5. When Alconga placed himself behind Barion, the latter saw Maria winking to Alconga. Barion
looked back at Alconga saying: "Coroy it seems that you are cheating. Son of a whore." Alconga answered: "Bioy you are also son of a
whore." Barion stood up to give a fist blow to Alconga who pinned him to his sit and attempted to give him a fist blow. The owner of the
house separated them. Barion struck Maria de Raposo, because he was losing in the game, threw away the cards, took the money
from the table, and rose to leave the place. While he was walking he addressed Alconga: "Coroy you are son of a whore. Tomorrow I
will give you a breakfast. You failed to take lesson by the fact that I boloed the head of your brother," referring to Bracamonte. When
Alconga saw Maria leaving the place, he pursued her asking for his share of the winnings. Maria answered: "What winnings are you
asking for?" Alconga said: "You are like your cousin. Both of you are cheaters." Maria went away insulting the accused. On The
morning of the 29th, Alconga went to one of his houses carrying an old working bolo to do some repairing. He left his long combat bolo
in one of his house. On the way he met Bracamonte who instructed him to mount guard in the home guard shed, because no one was
there. Bracamonte gave him a paltik. After staying about two hours in the shed, Bioy came and upon seeing him, threw away his
baskets and with his carrying lever gave a blow to Alconga, saying "This is your breakfast." Alconga was not hit because he dodged the
blow, by allowing himself to fall down. He sought cover under a bench with the purpose of going away. Barion gave him another blow,
but his lever hit the bench instead. When Alconga was able to come out from the bench, Barion went to the other side of the shed with
the intention of striking him. Alconga took the paltik and fired. Barion fell down losing hold of the lever. Both stood up at the same time;
Barion took his dagger and stabbed Alconga with it saying: "You are son of whore. Coroy, I will kill you." Alconga took his bolo to stop
the dagger thrust. Barion continued attacking Alconga with dagger thrusts, while Alconga kept stepping back in the direction of the rice
lands. In one of his dagger thrusts, Barion fell down by his own weight. Alconga took the dagger from his hand, and at the same time
Alconga heard his brother Bracamonte asking: "Coroy, Coroy, what is that?" Alconga answered: "Manoy, I killed Bioy, because if I did
not he would have killed me." Bracamonte took the paltik, the bolo and the dagger and pushing Alconga said: "Go to town." Alconga
added: "Look, Bioy gave me dagger thrusts, if I did not escape he would have killed me," showing his torn shirt. Bracamonte said: "Go
to town, I will bring you to the town officer." On the way, they met Luis Ballaran who asked: "Rodolfo, what happened to the boys?"
Bracamonte answered: "Uncle Luis, go to help Silverio at the rice land because I am going to bring my brother to town and I will return

For all the foregoing we are convinced:

1. That the testimonies of Luis Ballaran and Maria de Raposo are unworthy of credit. Both have been contradicted by the witnesses for
the defense, and the fact that the lower court acquitted Adolfo Bracamonte, shows that it believed the theory of the defense to the effect
that it is not true, as testified to by Luis Ballaran and Maria de Raposo, that Bracamonte took active part in the fight and it was he who
gave the first blow to the deceased with his bahi cane, causing him to fall. Ballaran's declaration to the effect that aside from the two
accused, the deceased and himself, no other people were in the place, is directly contradicted by Maria de Raposo who said that she
even passed in front of Ballaran, within a few meters from him. There being no way of reconciling the contradicting testimonies of
Ballaran and Maria and of determining who, among the two, declared the truth, we cannot but reject both testimonies as unreliable.
Felix Dichosa testified that Ballaran went to his house to request him to testify with instructions to give facts different from those which
actually happened. Upon Dichosa's suggestion that Ballaran himself testify, Ballaran had to confess that he did not see what happened
and he was going to look for another witness. The prosecution did not dare to recall Ballaran to belie Dichosa.

2. That Adolfo Bracamonte did not take part in the fight which resulted in Barion's death. When Bracamonte arrived at the place of the
struggle, he found Barion already a cadaver.

3. After rejecting the incredible version of Luis Ballaran and Maria de Raposo, the only version available of what happened is the one
given in the testimony of Alconga, well-supported and corroborated by all the other witnesses for the defense.

4. That according to the testimony of Alconga, there should not be any question on the following:

(a) That Barion had a grudge against Alconga in view of the gambling incident on the night of May 27, in which he promised to give
Alconga a breakfast, which upon what subsequently happened, was in fact a menace to kill him.

(b) That while Alconga was alone in the home guard shed, Barion, upon seeing him, suddenly attacked him with blows with his carrying

(c) That Alconga, to defend himself, at first fired the only bullet available in the paltik given to him by Bracamonte.

(d) That although Barion had fallen and lost hold of his carrying lever, he was able to stand up immediately and with a dagger continued
attacking Alconga.

(e) That Alconga took his old rusty bolo to defend himself, against the dagger thrusts of Barion, while at the same time stepping
backwards until both reached the rice land, where Barion fell dead.

(f) That the wounds received by Barion, who was sturdier and of aggressive character, were inflicted on him by Alconga while defending
himself against the illegal aggression of Barion.

(g) That in view of the number of wounds received by Barion, it is most probable that Alconga continued giving blows with his bolo even
after Barion was already unable to fight back.

(h) The theory of dividing the fight which took place in two stages, in the first one, Barion being the aggressor, and in the second one,
as the victim, finds no support in the evidence. It seems clear to us that the fight, from the beginning to end, was a continuous and
uninterrupted occurrence. There is no evidence upon which to base the proposition that there were two stages or periods in the
incident, in such a way that we might be allowed to conclude that in fact there were two fights.

The fact that Barion died with many wounds might be taken against appellant and may weaken the theory that he acted only in
legitimate self-defense. To judge, however, the conduct of appellant during the whole incident, it is necessary to consider the
psychology of a person engaged in a life or death struggle, acting under the irresistible impulses of self-preservation and blinded by
anger and indignation for the illegal aggression of which he was the victim. A person placed in such a crucial situation must have to
summon all his physiological resources and physical forces to rally to the one and indivisible aim of survival and, to that end, placed his
energies on the level of highest pitch. In that moment of physical and spiritual hypertension, to ask that a man should measure his acts
as an architect would make measurements to achieve proportion and symmetry in a proposed building or a scientist would make a
calibration, so that his acts of self-defense should stop precisely at the undeterminable border line when the aggressor ceases to be
dangerous, is to ask the impossible. Appellant's conduct must be judged not by the standards which may be exacted from the
supermen of the future, if progressive evolution may happen to develop them. Appellant's conduct can only be tested by the average
standards of human nature as we found it, which has many limitations and defects. If in trying to eliminate an actual danger menacing
his own existence, appellant was not able to moderate his efforts to destroy that menace, to the extent of actually killing his aggressor,
he is certainly not accountable. He is not an angel. We must judge him as man, with its average baggage of faults and imperfections.
After all, the aggressor ought to know that he acted at his risk, and that by trying to kill a human being he defied fate, he gambled his
own life. Fate is always stronger than all its challengers. He who gambles with life, like all gamblers, in the end becomes the loser.

Peace cannot remain undisturbed and justice cannot remain unchallenged unless all aggression is stopped, individual or collective. A
great number of human miseries are the natural fruits of aggression. One of the means of curbing it is to give a conclusive notice to all
aggressors, that not only are they to pay very dearly for their acts, but that the victims of their aggression are entitled, in self-defense, to
avail themselves of even the most devastating weapons. Those who allow themselves to run amuck in an aggression spree cannot
complain because the means of defense of the victims happen to be destructive. There may be some narrow-minded persons who
would hold illegal the use by the Americans of the atomic bomb to compel Japan to surrender. They must be followers of the philosophy
of the sheep. We prefer to follow the principle of dynamic self-defense for the innocent. Those who are bent on destroying human
beings, must, before they are able to achieve their diabolical objective, be first destroyed. Those who were killed at Hiroshima and
Nagasaki may appeal to our pity, but the millions whose lives were spared by the prompt and spectacular ending of the war with the
help of the atomic energy, are entitled to justice, a justice which would have been denied them if the Americans, swayed by
unreasonable feminine compunctions, should have abstained from using the weapon upon which were pinned the hopes and salvation
of those millions of innocent human beings. While those who cannot offend and the defenseless may merit all our sympathy and
kindness, those who constitutes an actual menace to human life are liable to be relentlessly crushed, until the last residuum of menace
has been wiped out.

We vote to acquit appellant.

People vs Guy-Sayco
Long before the commission of the crime herein prosecuted, Gelasio Galupitan, the husband of the accused, entered into unlawful
relations with the deceased Lorenza Estrada; all were residents of the town of Santa Cruz, the capital of the Province of La Laguna.
The accused, Emilia Guy-Sayco, duly became aware of this relation. As her husband had stayed away from home for more than two
weeks, remaining in the barrio of Dujat, distant about two and one-half hours walk from the said town under the pretext that he was
engaged in field work, on the 20th of March, 1907, at about 2 p. m., she decided to go to said barrio and join him. To this end she hired
a carromata, and after getting some clothes and other things necessary for herself and husband, started out with her infant child and a
servant girl; but before reaching the barrio and the camarin where her husband ought to be, night came on, and at about 7 oclock she
alighted and dismissed the vehicle after paying the driver. They had yet to travel some distance, and for fear of being attacked she
disguised herself, using her husbands clothes and a hat given to her by her companion, and dressed in this manner they continued on
their way. On seeing her husbands horse tied in front of a house she suspected that he was inside; thereupon she went to the steps
leading to the house, which was a low one, and then saw her husband sitting down with his back toward the steps. She immediately
entered the house and encountered her husband, the deceased, and the owners of the house taking supper together. Overcome and
blinded by jealousy she rushed at Lorenza Estrada, attacked her with a penknife that she carried, and inflicted five wounds upon her in
consequence of which Lorenza fell to the ground covered with blood and died a few moments afterwards. The accused left the house
immediately after the aggression, and went to that of Modesto Ramos where she changed her clothes.
From an examination of the body made on the following day by Dr. Gertrudo Reyes, it appeared that five wounds had been inflicted by
a cutting and pointed weapon, one of which was on the left side of the breast and penetrated the left ventricle of the heart; this wound
was of necessity mortal, the others being more or less serious.
A complaint was thereupon filed by the provincial fiscal on May 31, 1907, and the corresponding proceedings were instituted. The court
below entered judgment on June 29 1908 sentencing the accused, Emilia Guy-Sayco, to the penalty of twelve years and one day of
reclusion temporal, to suffer the accessory penalties, to indemnify the heirs of the deceased in the sum of P1,000, and to pay the
costs. From said judgment she has appealed.
The above-stated facts, which have been fully proven in this case, constitute the crime of homicide defined and punished by article 404
of the Penal Code, for the reason that in the violent death of Lorenza Estrada, occasioned by the infliction of several wounds, one of
which was mortal, none of the circumstances were present that qualify the crime of assassination and call for a heavier penalty as imposed
by the previous article 403 of the code.
The reality and certitude of the crime at bar cannot be denied. It has been proven by the testimony of several witnesses, to wit, Roberto
Villaran, Susana de Mesa, the owners of the house, and Maria Ramos, all of whom witnessed the aggression; they saw the decreased
die as the result of five wounds inflicted upon her, one of which was, of necessity mortal; it was also proven by the testimony of the
surgeon who examined the body, which was seen by the said witnesses and by others who went to the place of the occurrence.
The accused pleaded not guilty, and in exculpation she alleged that, when Lorenza Estrada saw her and heard her remonstrate with her
husband, she being then upstairs, Lorenza at once asked what had brought her there and manifested her intention to attack her with a
knife that she carried in her hand, whereupon the accused caught the deceased by the right hand, in which she held the weapon, and
immediately grappled with her, and in the struggle that ensued she managed to get hold of a penknife that she saw on the floor close by;
she could not say whether she struck the deceased with it as she could not account for what followed.
From this allegation of the accused, her counsel, with a view to asking that she be absolved, claims that in wounding the deceased she
acted in proper self-defense.
It has been proven beyond a reasonable doubt that as soon as the accused entered the house where she found her husband, without
saying a word, she attacked the deceased with a penknife and inflicted wounds that caused the immediate death of the latter. Such an
allegation cannot therefore be admitted, been though corroborated by the husband and the servant of the accused, inasmuch as the
testimony of the latter is entirely contradicted and destroyed by the testimony of the witnesses for the prosecution, who were present at
the aggression, and who deny that the servant was present; it is not true that a penknife was found on the floor of the house; its is probable
that the instrument with which the crime was committed was carried by the accused when she went to said house; and even though it
were true that when the accused, Emilia, made her appearance, the deceased Lorenza arose with a knife in her hand and in a threatening
manner asked the accused what had brought her there, such attitude, under the provisions of article 8, No. 4 of the Penal Code, does
not constitute that unlawful aggression, which, among others, is the first indispensable requisite upon which exemption by reason of self-
defense may be sustained.
In order to consider that an unlawful aggression was actually committed, it is necessary that an attack or material aggression, an offensive
act positively determining the intent of the aggressor to cause an injury shall have been make; a mere threatening or intimidating attitude
is not sufficient to justify the commission of an act which is punishable per se, and allow a claim of exemption from liability on the ground
that it was committed in self-defense. It has always been so recognized in the decisions of the courts, in accordance with the provisions
of the Penal Code.
In the commission of the crime the presence of mitigating circumstance No. 7 of article 9 of the code should be considered, without any
aggravating circumstance to neutralize its effects, for the reason that it has been proven that the accused, at the time when the crime
was committed, acted upon the impulse of passion and under great jealous excitement at the sight of her husband taking supper in the
company of his mistress, after he had been absent from the conjugal dwelling for several days.
As to the penalty of indemnity contained in the judgment appealed from and impugned by the defense, article 17 of the code reads:
chanrobles virtualawlibrary Every person criminally liable for a crime or misdemeanor is also civilly liable, and according to the
established rule of the courts, in order that an accused person may be declared to have incurred civil liability, it is sufficient that said
liability shall proceed from, or be the consequence of the criminal liability, and in addition thereto, article 122 of said code provides that
the courts shall regulate the amount of indemnity for damages under said civil liability, upon the same terms as prescribed for the
reparation of damage in article 121 of the code, and a finding on the matter should be contained in the judgment.
For the reasons above set forth it is our opinion that the judgment appealed from should be affirmed, as we do hereby affirm it in all its
parts with costs against the Appellant. SO ORDERED.
Arellano, C.J., Mapa, Johnson and Carson, JJ., concur.

Separate Opinions

WILLARD, J., dissenting: chanrobles virtualawlibrary

I think that the aggravating circumstance of disguise should be applied, and I do not agree with that part of the decision which treats of
the matter of aggression ilegitima.