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C.A. No.

384 February 21, 1946 (3) That the trial court erred in holding that the commission of the alleged
offense was attended by the aggravating circumstance of having been
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, committed in a sacred place.
vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants. The evidence adduced by the parties, at the trial in the court below, has
AVELINA JAURIGUE, appellant. sufficiently established the following facts:

Jose Ma. Recto for appellant. That both the defendant and appellant Avelina Jaurigue and the deceased
Assistant Solicitor General Enriquez and Solicitor Palma for appellee.. Amado Capina lived in the barrio of Sta. Isabel, City of San Pablo, Province
of Laguna; that for sometime prior to the stabbing of the deceased by
DE JOYA, J.: defendant and appellant, in the evening of September 20, 1942, the
former had been courting the latter in vain, and that on one occasion,
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First about one month before that fatal night, Amado Capina snatched a
Instance of Tayabas, for the crime of murder, of which Nicolas Jaurigue handkerchief belonging to her, bearing her nickname "Aveling," while it
was acquitted, but defendant Avelina Jaurigue was found guilty of was being washed by her cousin, Josefa Tapay.
homicide and sentenced to an indeterminate penalty ranging from seven
years, four months and one day of prision mayor to thirteen years, nine On September 13, 1942, while Avelina was feeding a dog under her house,
months and eleven days of reclusion temporal, with the accessory Amado approached her and spoke to her of his love, which she flatly
penalties provided by law, to indemnify the heirs of the deceased, Amando refused, and he thereupon suddenly embraced and kissed her and touched
Capina, in the sum of P2,000, and to pay one-half of the costs. She was also her breasts, on account of which Avelina, resolute and quick-tempered girl,
credited with one-half of the period of preventive imprisonment suffered slapped Amado, gave him fist blows and kicked him. She kept the matter
by her. to herself, until the following morning when she informed her mother
about it. Since then, she armed herself with a long fan knife, whenever she
From said judgment of conviction, defendant Avelina Jaurigue appealed to went out, evidently for self-protection.
the Court of Appeals for Southern Luzon, and in her brief filed therein on
June 10, 1944, claimed — On September 15, 1942, about midnight, Amado climbed up the house of
defendant and appellant, and surreptitiously entered the room where she
(1) That the lower court erred in not holding that said appellant had acted was sleeping. He felt her forehead, evidently with the intention of abusing
in the legitimate defense of her honor and that she should be completely her. She immediately screamed for help, which awakened her parents and
absolved of all criminal responsibility; brought them to her side. Amado came out from where he had hidden
under a bed in Avelina's room and kissed the hand of Nicolas Jaurigue, her
(2) That the lower court erred in not finding in her favor the additional father, asking for forgiveness; and when Avelina's mother made an
mitigating circumstances that (a) she did not have the intention to commit attempt to beat Amado, her husband prevented her from doing so, stating
so grave a wrong as that actually committed, and that (b) she voluntarily that Amado probably did not realize what he was doing. Nicolas Jaurigue
surrendered to the agents of the authorities; and sent for the barrio lieutenant, Casimiro Lozada, and for Amado's parents,
the following morning. Amado's parents came to the house of Nicolas
Jaurigue and apologized for the misconduct of their son; and as Nicolas

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Jaurigue was then angry, he told them to end the conversation, as he lieutenant Casimiro Lozada, who was also in the same chapel, approached
might not be able to control himself. Avelina and asked her why she did that, and Avelina surrendered herself,
saying: "Kayo na po ang bahala sa aquin," meaning: "I hope you will take
In the morning of September 20, 1942, Avelina received information that care of me," or more correctly, "I place myself at your disposal." Fearing
Amado had been falsely boasting in the neighborhood of having taken that Amado's relatives might retaliate, barrio lieutenant Lozada advised
liberties with her person and that she had even asked him to elope with Nicolas Jaurigue and herein defendant and appellant to go home
her and that if he should not marry her, she would take poison; and that immediately, to close their doors and windows and not to admit anybody
Avelina again received information of Amado's bragging at about 5 o'clock into the house, unless accompanied by him. That father and daughter went
in the afternoon of that same day. home and locked themselves up, following instructions of the barrio
lieutenant, and waited for the arrival of the municipal authorities; and
At about 8 o'clock in the evening of the same day, September 20, 1942, when three policemen arrived in their house, at about 10 o'clock that
Nicolas Jaurigue went to the chapel of the Seventh Day Adventists of which night, and questioned them about the incident, defendant and appellant
he was the treasurer, in their barrio, just across the provincial road from immediately surrendered the knife marked as Exhibit B, and informed said
his house, to attend religious services, and sat on the front bench facing policemen briefly of what had actually happened in the chapel and of the
the altar with the other officials of the organization and the barrio previous acts and conduct of the deceased, as already stated above, and
lieutenant, Casimiro Lozada. Inside the chapel it was quite bright as there went with said policemen to the police headquarters, where her written
were electric lights. statements were taken, and which were presented as a part of the
evidence for the prosecution.
Defendant and appellant Avelina Jaurigue entered the chapel shortly after
the arrival of her father, also for the purpose of attending religious The high conception of womanhood that our people possess, however
services, and sat on the bench next to the last one nearest the door. humble they may be, is universal. It has been entertained and has existed
Amado Capina was seated on the other side of the chapel. Upon observing in all civilized communities.
the presence of Avelina Jaurigue, Amado Capina went to the bench on
which Avelina was sitting and sat by her right side, and, without saying a A beautiful woman is said to be a jewel; a good woman, a treasure; and
word, Amado, with the greatest of impudence, placed his hand on the that a virtuous woman represents the only true nobility. And they are the
upper part of her right thigh. On observing this highly improper and future wives and mothers of the land. Such are the reasons why, in the
offensive conduct of Amado Capina, Avelina Jaurigue, conscious of her defense of their honor, when brutally attacked, women are permitted to
personal dignity and honor, pulled out with her right hand the fan knife make use of all reasonable means available within their reach, under the
marked Exhibit B, which she had in a pocket of her dress, with the circumstances. Criminologists and courts of justice have entertained and
intention of punishing Amado's offending hand. Amado seized Avelina's upheld this view.
right hand, but she quickly grabbed the knife with her left hand and
stabbed Amado once at the base of the left side of the neck, inflicting upon On the other hand, it is the duty of every man to protect and show loyalty
him a wound about 4 1/2 inches deep, which was necessarily mortal. to womanhood, as in the days of chivalry. There is a country where women
Nicolas Jaurigue, who was seated on one of the front benches, saw Amado freely go out unescorted and, like the beautiful roses in their public
bleeding and staggering towards the altar, and upon seeing his daughter gardens, they always receive the protection of all. That country is
still holding the bloody knife, he approached her and asked: "Why did you Switzerland.
do that," and answering him Avelina said: "Father, I could not endure
anymore." Amado Capina died from the wound a few minutes later. Barrio

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In the language of Viada, aside from the right to life on which rests the reply, attacked and killed the said person with a pocket knife, it was held
legitimate defense of our own person, we have the right to property that, notwithstanding the woman's belief in the supposed attempt, it was
acquired by us, and the right to honor which is not the least prized of our not sufficient provocation or aggression to justify her completely in using
patrimony (1 Viada, Codigo Penal, 5th ed., pp. 172, 173). deadly weapon. Although she actually believed it to be the beginning of an
attempt against her, she was not completely warranted in making such a
The attempt to rape a woman constitutes an unlawful aggression sufficient deadly assault, as the injured person, who turned out to be her own
to put her in a state of legitimate defense, inasmuch as a woman's honor brother-in-law returning home with his wife, did not do any other act
cannot but be esteemed as a right as precious, if not more, than her very which could be considered as an attempt against her honor (United States
existence; and it is evident that a woman who, thus imperiled, wounds, vs. Apego, 23 Phil., 391)..
nay kills the offender, should be afforded exemption from criminal liability,
since such killing cannot be considered a crime from the moment it In the instant case, if defendant and appellant had killed Amado Capina,
became the only means left for her to protect her honor from so great an when the latter climbed up her house late at night on September 15, 1942,
outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague and and surreptitiously entered her bedroom, undoubtedly for the purpose of
Alcansare, 62 Phil., 504). . raping her, as indicated by his previous acts and conduct, instead of merely
shouting for help, she could have been perfectly justified in killing him, as
As long as there is actual danger of being raped, a woman is justified in shown by the authorities cited above..
killing her aggressor, in the defense of her honor. Thus, where the
deceased grabbed the defendant in a dark night at about 9 o'clock, in an According to the facts established by the evidence and found by the
isolated barrio trail, holding her firmly from behind, without warning and learned trial court in this case, when the deceased sat by the side of
without revealing his identity, and, in the struggle that followed, touched defendant and appellant on the same bench, near the door of the barrio
her private parts, and that she was unable to free herself by means of her chapel and placed his hand on the upper portion of her right thigh, without
strength alone, she was considered justified in making use of a pocket her consent, the said chapel was lighted with electric lights, and there
knife in repelling what she believed to be an attack upon her honor, and were already several people, about ten of them, inside the chapel,
which ended in his death, since she had no other means of defending including her own father and the barrio lieutenant and other dignitaries of
herself, and consequently exempt from all criminal liability (People vs. De the organization; and under the circumstances, there was and there could
la Cruz, 16 Phil., 344). be no possibility of her being raped. And when she gave Amado Capina a
thrust at the base of the left side of his neck, inflicting upon him a mortal
And a woman, in defense of her honor, was perfectly justified in inflicting wound 4 1/2 inches deep, causing his death a few moments later, the
wounds on her assailant with a bolo which she happened to be carrying at means employed by her in the defense of her honor was evidently
the time, even though her cry for assistance might have been heard by excessive; and under the facts and circumstances of the case, she cannot
people nearby, when the deceased tried to assault her in a dark and be legally declared completely exempt from criminal liability..
isolated place, while she was going from her house to a certain tienda, for
the purpose of making purchases (United States vs. Santa Ana and Ramos, But the fact that defendant and appellant immediately and voluntarily and
22 Phil., 249). unconditionally surrendered to the barrio lieutenant in said chapel,
admitting having stabbed the deceased, immediately after the incident,
In the case, however, in which a sleeping woman was awakened at night and agreed to go to her house shortly thereafter and to remain there
by someone touching her arm, and, believing that some person was subject to the order of the said barrio lieutenant, an agent of the
attempting to abuse her, she asked who the intruder was and receiving no authorities (United States vs. Fortaleza, 12 Phil., 472); and the further fact

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that she had acted in the immediate vindication of a grave offense circumstances of the instant case, the defendant and appellant should be
committed against her a few moments before, and upon such provocation accorded the most liberal consideration possible under the law (United
as to produce passion and obfuscation, or temporary loss of reason and States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil., 472;
self-control, should be considered as mitigating circumstances in her favor People vs. Mercado, 43 Phil., 950)..
(People vs. Parana, 64 Phil., 331; People vs. Sakam, 61 Phil., 27; United
States vs. Arribas, 1 Phil., 86). The law prescribes the penalty of reclusion temporal for the crime of
homicide; and if it should be reduced by two degrees, the penalty to be
Defendant and appellant further claims that she had not intended to kill imposed in the instant case is that of prision correccional; and pursuant to
the deceased but merely wanted to punish his offending hand with her the provisions of section 1 of Act No. 4103 of the Philippine Legislature,
knife, as shown by the fact that she inflicted upon him only one single known as the Indeterminate Sentence Law, herein defendant and
wound. And this is another mitigating circumstance which should be appellant should be sentenced to an indeterminate penalty ranging from
considered in her favor (United States vs. Brobst, 14 Phil., 310; United arresto mayor in its medium degree, to prision correccional in its medium
States vs. Diaz, 15 Phil., 123). degree. Consequently, with the modification of judgment appealed from,
defendant and appellant Avelina Jaurigue is hereby sentenced to an
The claim of the prosecution, sustained by the learned trial court, that the indeterminate penalty ranging from two months and one day of arresto
offense was committed by the defendant and appellant, with the mayor, as minimum, to two years, four months, and one day of prision
aggravating circumstance that the killing was done in a place dedicated to correccional, as maximum, with the accessory penalties prescribed by law,
religious worship, cannot be legally sustained; as there is no evidence to to indemnify the heirs of the deceased Amado Capina, in the sum of
show that the defendant and appellant had murder in her heart when she P2,000, and to suffer the corresponding subsidiary imprisonment, not to
entered the chapel that fatal night. Avelina is not a criminal by nature. She exceed 1/3 of the principal penalty, in case of insolvency, and to pay the
happened to kill under the greatest provocation. She is a God-fearing costs. Defendant and appellant should also be given the benefit of 1/2 of
young woman, typical of our country girls, who still possess the her preventive imprisonment, and the knife marked Exhibit B ordered
consolation of religious hope in a world where so many others have confiscated. So ordered..
hopelessly lost the faith of their elders and now drifting away they know
not where. Ozaeta, Perfecto, and Bengzon, JJ., concur.

The questions raised in the second and third assignments of error appear,
therefore, to be well taken; and so is the first assignment of error to a G.R. No. L-162 April 30, 1947
certain degree.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
In the mind of the court, there is not the least doubt that, in stabbing to vs.
death the deceased Amado Capina, in the manner and form and under the DIOSCORO ALCONGA and ADOLFO BRACAMONTE, defendants.
circumstances above indicated, the defendant and appellant committed DIOSCORO ALCONGA, appellant.
the crime of homicide, with no aggravating circumstance whatsoever, but
with at least three mitigating circumstances of a qualified character to be Jose Avanceña for appellant.
considered in her favor; and, in accordance with the provisions of article 69 Assistant Solicitor General Kapunan, Jr. and Solicitor Barcelona for
of the Revised Penal Code, she is entitled to a reduction by one or two appellee.
degrees in the penalty to be imposed upon her. And considering the

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HILADO, J.: 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
On the night of May 27, 1943, in the house of one Mauricio Jepes in the wounds, the deceased ran away but was followed by the accused (t.s.n., p.
Municipality of San Dionisio, Province of Iloilo several persons were playing 6). After running a distance of about 200 meters (t.s.n., pp. 21, 108), the
prohibited games (t.s.n., pp. 95, 125). The deceased Silverio Barion was the deceased was overtaken, and another fight took place, during which the
banker in the game of black jack, and Maria de Raposo, a witness for the mortal bolo blow — the one which slashed the cranium — was delivered,
prosecution, was one of those playing the game (t.s.n., p. 95). Upon causing the deceased to fall to the ground, face downward, besides many
invitation of the said Maria de Raposo, the accused Dioscoro Alconga other blows deliver right and left (t.s.n., pp. 6, 28). At this instant, the
joined her as a partner, each of them contributing the sum of P5 to a other accused, Adolfo Bracamonte, arrived and, being the leader of the
common fund (t.s.n., pp. 95, 125). Maria de Raposo played the game while "home guards" of San Dionisio, placed under his custody the accused
the said accused posted himself behind the deceased, acting as a spotter Alconga with a view to turning him over to the proper authorities (t.s.n.,
of the cards of the latter and communicating by signs to his partner (t.s.n., pp. 102-105).
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 On their way to San Dionisio, the two accused were stopped by Juan
Alconga (t.s.n., pp. 96, 126). Upon discovering what the said accused had Collado, a guerrilla soldier (t.s.n., pp. 80, 104). Adolfo Bracamonte turned
been doing, the deceased became indignant and expressed his anger at the over Alconga to Collado who in turn took him to the headquarters (t.s.n.,
former (t.s.n., pp. 96, 126). An exchange of words followed, and the two pp. 81, 104). In the afternoon of the same day, Collado delivered Alconga
would have come to blows but for the intervention of the maintainer of to Gregorio Barredo, a municipal policeman of San Dionisio, together with
the games (t.s.n., p. 96). In a fit of anger, the deceased left the house but the weapons used in the fight: a revolver, a bolo, and a dagger (t.s.n., pp.
not before telling the accused Alconga, "tomorrow morning I will give you 81, 104).
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 injuries sustained by the deceased were described by police sergeant
Gil G. Estaniel as follows:
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 P. ¿Y que hicieron ustedes cuando ustedes vieron a Silverio Barion? — R.
in the barrio of Santol, performing his duties as "home guard" (t.s.n., pp. Examine sus heridas.
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 P. ¿Donde ha encontrado usted las heridas, en que parte del cuerpo? — R.
your breakfast," followed forthwith by a swing of his "pingahan" (t.s.n., p. En la cabeza, en sus brazos, en sus manos, en la mandibula inferior, en la
100). The accused avoided the blow by falling to the ground under the parte frente de su cuello, en su pecho derecho, y tambien en el pecho
bench with the intention to crawl out of the guardhouse (t.s.n., pp. 100- izquierdo, y su dedo meñique habia volado, se habia cortado, y otras
101). A second blow was given but failed to hit the accused, hitting the perqueñas heridas mas.
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 P. ¿En la cabeza, vio usted heridas? — R. Si, señor.
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 P. ¿Cuantas heridas? — R. Una herida en la region parietal derecha y una
him to stagger and to fall to the ground (t.s.n., p. 101). Rising to his feet, contusion en la corona de la cabeza.
the deceased drew forth his dagger and directed a blow at the accused

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P. ¿Vio usted el craneo? — R. En la craneo llevaba una herida, en quel el such circumstances, appellant's plea of self-defense in the second stage of
craneo se ha roto. the fight cannot be sustained. There can be no defense where there is no
aggression.
P. ¿En el pecho, herida ha encontrado usted? — R. Debajo de la tetilla
derecha, una herida causada por una bala. 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
P. ¿Y otras heridas en el pecho, puede usted decir que clase de heridas? — blows, among them the fatal one, after the necessity for defending himself
R. Heridas causadas por bolo. 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
P. ¿Como de grande acquellas heridas en el pecho? — R. No recuerdo la Penal Code is wanting (now article 11, case No. 1, Revised Penal Code).
dimension de las heridas en el pecho. (United States vs. Dimitillo, 7 Phil., 475, 476; words in parenthesis
supplied.)
P. ¿Pero en la cabeza? — R. La cabeza se rajo por aquella herida causada
por el bolo. (T.s.n., p. 25.) . . . 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
It will be observed that there were two stages in the fight between ceased when the aggression ceased; and when Toledo and his brothers
appellant and the deceased. The initial stage commenced when the turned and ran, without having inflicted so much as a scratch upon a single
deceased assaulted appellant without sufficient provocation on the part of one of the defendants, the right of the defendants to inflict injury upon
the latter. Resisting the aggression, appellant managed to have the upper them ceased absolutely. They had no right to pursue, no right to kill or
hand in the fight, inflicting several wounds upon the deceased, on account injure. A fleeing man is not dangerous to the one from whom he flees.
of which the latter fled in retreat. From that moment there was no longer When danger ceases, the right to injure ceases. When the aggressor turns
any danger to the life of appellant who, being virtually unscathed, could and flees, the one assaulted must stay his hand. (United States vs. Vitug,
have chosen to remain where he was. Resolving all doubts in his flavor, 17 Phil., 1, 19; emphasis supplied.)
and considering that in the first stage the deceased was the unlawful
aggressor and defendant had not given sufficient provocation, and Upon the foregoing facts, we hold that appellant's guilt of the crime of
considering further that when the deceased was about to deliver the third homicide has been established beyond reasonable doubt. The learned trial
blow, appellant was still in a crawling position and, on that account, could court appreciated in his favor of two mitigating circumstances: voluntary
not have effectively wielded his bolo and therefore had to use his "paltik" surrender and provocation on the part of the deceased. The first was
revolver — his only remaining weapon — ; we hold that said appellant was properly appreciated; the second was not, since it is very clear that from
then acting in self-defense. 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
But when he pursued the deceased, he was no longer acting in self- much less further to attack him.
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 The only provocation given by him was imbibed in, and inseparable from,
second stage of the fight appellant inflicted many additional wounds upon the aggression with which he started the first stage of the fight. The
the deceased. That the deceased was not fatally wounded in the first evidence, as weighed and appreciated by the learned trial judge, who had
encounter is amply shown by the fact that he was still able to run a heard, seen and observed the witnesses testify, clearly shows that said
distance of some 200 meters before being overtaken by appellant. Under stage ended with the flight of the deceased after receiving a bullet wound

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in his right breast, which caused him to stagger and fall to the ground, and further to attack him. It will be recalled, to be given with, that the first
several bolo wounds inflicted by appellant during their hand-to-hand fight stage of the fight was provoked when the deceased said to appellant
after both had gotten up. The learned trial judge said: "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
The evidence adduced by the prosecution and the defense in support of immediately following attack with the "pingahan" would not have been
their respective theories of the case vary materially on certain points. uttered, we can safely assume, since such an utterance alone would have
Some of these facts have to be admitted and some have to be rejected been entirely meaningless. It was the attack, therefore, that effectively
with the end in view of arriving at the truth. To the mind of the Court, constituted the provocation, the utterance being, at best, merely a
what really happened in the case at bar, as can de disclosed by the records, preclude to the attack. At any rate, the quoted words by themselves,
which lead to the killing of the deceased on that fatal morning of May 29, without the deceased's act immediately following them, would certainly
1945 (should be 1943), is as follows: 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
xxx xxx xxx mitigating circumstance must be sufficient and immediately preceding the
act. (Revised Penal Code, article 13, No. 4.)
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 Under the doctrine in United States vs. Vitug, supra, when the deceased
deceased Silverio Barion passed by with a "pingahan". That was the first ran and fled without having inflicted so much as a scratch upon appellant,
time the deceased and the accused Alconga had met since that eventful but after, upon the other hand, having been wounded with one revolver
night of May 27th in the gambling house of Gepes. Upon seeing the shot and several bolo slashes, as aforesaid, the right of appellant to inflict
accused Alconga, who was then seated in the guardhouse, the deceased injury upon him, ceased absolutely — appellant "had no right to pursue, no
cried: "Coroy, this is now the breakfast!" These words of warning were right to kill or injure" said deceased — for the reason that "a fleeing man is
immediately followed by two formidable swings of the "pingahan" directed not dangerous to the one from whom he flees." If the law, as interpreted
at the accused Alconga which failed to hit him. Alconga was able to avoid and applied by this Court in the Vitug case, enjoins the victorious
the blows by falling to the ground and crawling on his abdomen until he contender from pursuing his opponent on the score of self-defense, it is
was outside the guardhouse. The deceased followed him and while in the because this Court considered that the requisites of self-defense had
act of delivering the third blow, Dioscoro Alconga fired at him with his ceased to exist, principal and indispensable among these being the
revolver thereby stopping the blow in mid-air. The deceased fell to the unlawful aggression of the opponent (Rev. Penal Code, article 11, No. 1; 1
ground momentarily and upon rising to his feet, he drew forth a dagger. Viada, 5th ed., 173).
The accused Alconga resorted to his bolo and both persons being armed, a
hand-to-hand fight followed. The deceased having sustained several Can we find under the evidence of record that after the cessation of said
wounds from the hands of Alconga, ran away with the latter close to his aggression the provocation thus involved therein still persisted, and to a
heels. degree sufficient to extenuate appellant's criminal responsibility for his
acts during the second stage of the fight? Appellant did not testify nor
The foregoing statement of the pertinent facts by the learned trial judge is offer other evidence to show that when he pursued the deceased he was
in substantial agreement with those found by us and narrated in the first still acting under the impulse of the effects of what provocation, be it
paragraphs of this decision. Upon those facts the question arises whether anger, obfuscation or the like. The Revised Penal Code provides:
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 ART. 13. Mitigating circumstances:

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xxx xxx xxx 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
4. That sufficient provocation or threat on the part of the offended party deceased in his right breast and caused the latter to fall to the ground; or
immediately preceded the act. — making a concession in appellant's favor — after the latter had inflicted
several bolo wounds upon the deceased, without the deceased so much as
It is therefore apparent that the Code requires for provocation to be such a having scratched his body, in their hand-to-hand fight when both were on
mitigating circumstance that it not only immediately precede the act but their feet again. But if we are to grant appellant a further concession,
that it also be sufficient. In the Spanish Penal Code, the adjective modifying under the view most favorable to him, that aggression must be deemed to
said noun is "adecuada" and the Supreme Court of Spain in its judgment of have ceased upon the flight of the deceased — upon the end of the first
June 27, 2883, interpreted the equivalent provision of the Penal Code of stage of the fight. In so affirming, we had to strain the concept in no small
that country, which was the source of our own existing Revised Penal degree. But to further strain it so as to find that said aggression or
Code, that "adecuada" means proportionate to the damage caused by the provocation persisted even when the deceased was already in flight,
act. Viada (Vol. 11, 5th ed., p. 51) gives the ruling of that Supreme Court as clearly accepting defeat and no less clearly running for his life rather than
follows: evincing an intention of returning to the fight, is more than we can
sanction. It should always be remembered that "illegal aggression is
El Tribunal Supremo ha declarado que la provocacion o amenaza que de equivalent to assault or at least threatened assault of an immediate and
parte del ofendido ha de preceder para la disminucion de la imminent kind.
responsabilidad criminal debe ser proporcionada al daño que se cause, lo
cual no concurre a favor del reo si resulta que la unica cuestion que hubo Agresion ilegitima. — Agresion vale tanto como acometimiento. Para que
fue si en un monton de yeso habia mas omenos cantidad, y como perdiera exista el derecho de defensa es preciso que se nos acometa, que se nos
la apuesta y bromeando dijera el que la gano que beberia vino de balde, ataque, o cuando menos, que se nos amenace de atacarnos de un modo
esa pequeña cuestion de amor propio no justificaba en modo alguno la ira inmediato e inminente; v. gr., desenvainando el puñal para herirnos con el
que le impelio a herir y matar a su contrario. (S. de 27 de junio de 1883, o apuntando la pistola para dispararla contra nosotros. (Viada, 5. a edicion,
Gaceta de 27 de septiembre.) 173.)

Justice Albert, in his commentaries on the Revised Penal Code, 1946 After the flight of the deceased there was clearly neither an assault nor a
edition, page 94, says: "The provocation or threat must be sufficient, which threatened assault of the remotest kind. It has been suggested that when
means that it should be proportionate to the act committed and adequate pursuing his fleeing opponent, appellant might have thought or believed
to stir one to its commission" (emphasis supplied). 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
Sufficient provocation, being a matter of defense, should, like any other, alleged by appellant, or as a separate circumstance, the burden of proof to
be affirmatively proven by the accused. This the instant appellant has establish such a defense was, of course, upon appellant, and he has not so
utterly failed to do. Any way, it would seem self-evident that appellant much as attempted to introduce evidence for this purpose. If he really
could never have succeeded in showing that whatever remained of the thought so, or believed so, he should have positively proven it, as any
effects of the deceased's aggression, by way of provocation after the latter other defense. We can not now gratuitously assume it in his behalf.
was already in fight, was proportionate to his killing his already defeated
adversary.

8
It is true that in the case of United States vs. Rivera (41 Phil., 472, 474), this As thus modified, the judgment appealed from is hereby affirmed. So
Court held that one defending himself or his property from a felony ordered.
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 G.R. Nos. L-41269-70 August 6, 1979
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 CARLOS CASTAÑARES, petitioner,
deceased. In actual performance appellant, from the very beginning, vs.
demonstrated his superior fighting ability; and he confirmed it when after THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE
the deceased was first felled down by the revolver shot in right breast, and PHILIPPINES, respondents.
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 Arturo A. Joaquin for petitioner.
several bolo wounds while the latter got through completely unscathed.
And when the deceased thereupon turned and fled, the circumstances Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General
were such that it would be unduly stretching the imagination to consider Reynato S. Puno and Solicitor Carlos N. Ortega for respondents.
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 GUERRERO, J.:
any injury, it would need, indeed, an unusually strong positive showing —
which is completely absent from the record — to persuade us that he had Petitioner Carlos Castañares was charged before the Court of First Instance
not yet "secured himself from danger" after shooting his weakly armed of Rizal under two separate informations for homicide for the deaths of
adversary in the right breast and giving him several bolo slashes in Manuel Pacheco and Felizardo Pacheco, brothers, on February 7, 1967
different other parts of his body. To so hold would, we believe, be between ten o'clock and eleven o'clock in the evening within the Rufina
unjustifiably extending the doctrine of the Rivera case to an extreme not Patis Compound at Calle Pescador, Malabon, Rizal. The accused admitted
therein contemplated. the fact of killing the two brothers but he interposed as his defense the
justifying circumstance of complete selfdefense. After trial, the lower court
Under article 249, in relation with article 64, No. 2, of the Revised Penal convicted him and imposed the following sentence:
Code, the crime committed by appellant is punishable by reclusion
temporal in its minimum period, which would be from 12 years and 1 day WHEREFORE, the accused Carlos Castañares is hereby sentenced in each
to 14 years and 8 months. However, in imposing the penalty, we take into case to an indeterminate penalty of from EIGHT (8) YEARS AND ONE (1)
consideration the provisions of section 1 of the Indeterminate Sentence DAY of prision mayor, as minimum, to FOURTEEN (14) YEARS, EIGHT (8)
Law (Act No. 4103), as amended by Act No. 4225. Accordingly, we find MONTHS AND ONE (1) DAY of reclusion temporal, as maximum, together
appellant guilty of the aforesaid crime of homicide and sentence him to an with all the accessory penalties, to indemnify the heirs of the deceased
indeterminate penalty of from 6 years and 1 day of prision mayor to 14 Manuel Pacheco in the amount of P12,000.00, and the heirs of the late
years and 8 months of reclusion temporal, to indemnify the heirs of the Felizardo Pacheco also in the amount of P12,000.00, without subsidiary
deceased in the sum of P2,000, and to pay the costs. imprisonment in case of insolvency; and to pay the costs.

9
On appeal, the respondent Court of Appeals 1 modified the judgment of
the lower court in that it appreciated in favor of the accused the mitigating Art. 11. The following do not incur any criminal liability:
circumstance of unlawful aggression on the part of the victims and
accordingly rendered the Decision dated February 21, 1975, the pertinent (1) Anyone who acts in defense of his person or rights provide that
portion of which states: the following circumstances concur:

Nevertheless, since the mitigating circumstance of unlawful aggression on First. Unlawful aggression;
the part of the victims has been duly established, the appellant is entitled
to be credited the same. (Article 13, par. (2), Revised Penal Code). The Second. Reasonable necessity of the means employed to prevent or repel
penalty for homicide under Article 249 of the Revised Penal Code, in it;
relation with Article 64, paragraph (2) of the same Code, should be
imposed in its minimum, and applying the Indeterminate Sentence Law, Third. Lack of sufficient provocation on the part of the person defending
the penalty that should be imposed on the appellant for each of the two himself.
homicides charged is that of Six (6) years and one (1) day of prison (sic)
mayor as minimum, to Twelve (12) years and one (1) day of reclusion xxx xxx xxx
temporal as maximum.
It is further required that the presence of all the abovecited circumstances
WHEREFORE, with the above modifications as to the penalty, the judgment must be proved clearly and convincingly with the burden of proof on the
appealed from is affirmed in all other respects, with costs against accused, relying on the strength of his own evidence and not on the
appellant. weakness of that of the prosecution. The rationale for such requirement
proceeds from the ad mission of the accused that he has killed or wounded
Accused's motion for reconsideration having been denied, he filed this another which is a felony for which he should be criminally liable unless he
petition for review seeking the reversal of the above decision and praying establishes to the satisfaction of the court the fact o legitimate defense. 3
that he be acquitted of the crimes charged, with costs de oficio.
Based on the above discussion, We are faced with the lone issue presented
The law on self-defense embodied in any penal system in the civilized by the petition at bar: whether or not accused Carlos Castañares acted in
world finds justification in man's natural instinct to protect, repel, and save complete self-defense in the killing of Manuel Pacheco and Felizardo
his person or rights from impending danger or peril; it is based on that Pacheco and thus be absolved from any criminal liability thereon.
impulse of self-preservation born to man and part of his nature as a human
being. ... To the Classicists in penal law, lawful defense is grounded the Witnesses for the prosecution testified that on the evening of February 7,
impossibility on the part of the State to avoid a present just aggression and 1967 between ten o'clock and eleven o'clock in the evening, Pablito de
protect a person unlawfully attacked, a therefore it is inconceivable for the Jesus Aquino, Mariano Flores, Felicisimo Fuertes and Felizardo Pacheco
State to require that the innocent succumb to an unlawful aggression were then conversing at the gate of the Rufina Patis Compound at
without resistance, while to the Positivists, lawful defense is an exercise of Pescador St., Malabon, Rizal, "when later Felizardo Pacheco left and went
a rig an act of social justice done to repel the attack of an aggressor. 2 towards the riverside about fifteen (15) meters away from the gate where
he met the appellant (accused) who boxed him. Felizardo returned to the
Our law on the matter is embodied in Article 11, paragraph 1 of the gate of the compound, his mouth bleeding, and when he was asked by
Revised Penal Code, thus — Aquino why he was boxed by the appellant, he did not answer. Manuel

10
Pacheco, brother of Felizardo, arrived and Felizardo told him about the to be a piece of broken iron gear and as Manuel stood up, half-crouching
incident with the appellant, so the Pacheco brothers went to the riverside charging towards the appellant, the appellant fired at Manuel. At this
to inquire from the appellant why he boxed Felizardo. The appellant was moment, Felizardo drew his knife from his waist and swung his hand back
then on the fishing boat, about 5 meters from the riverbank, when Manuel to stab the appellant but the latter suddenly turned around and evaded
Pacheco asked him why he boxed Felizardo, but the appellant did not the thrust of Felizardo, and the appellant fired at Felizardo. Felizardo must
answer. Instead, he went down by the outriggers of the boat and after have been hit at the right upper arm above the elbow, as he lost hold of
pulling his gun, fired at Manuel twice so Manuel fell in a sitting position at the knife, which was thrown underneath the rear of the parked truck. He
the tear of the toilet of the Rufina Patis Factory. When Felizardo saw that tried to grab the knife. The appellant warned Felizardo, "Bitiwan mo iyan"
Manuel was shot, he ran away but the appellant pursued him, and but Felizardo did not release the knife and was about to stand up so the
between a parked truck and the walls of the factory the appellant fired at appellant fired at Felizardo. Immediately, after the shooting, two persons
him and hit him at the back so the latter fell with his face down. The scampered from the rear of the parked truck causing a "canastro" of fish to
appellant again fired twice at Felizardo. After the shooting, the appellant fall down the truck and overturn thus scattering its contents. The appellant
scattered a basketful of fishes between the fallen bodies of the Pacheco returned to the boat where he told his wife about the incident. He showed
brothers and went back to the fishing boat. The Pacheco brothers died the gun to his wife but the latter in her excitement brushed the same aside
because of the gunshot wounds." (CA decision, p. 2). and it fell into the river. After the appellant was detained and upon his
release, he looked for a diver to find the gun that fell into the river, but all
On the other hand, witnesses for the defense, including the accused, efforts to locate the same proved futile. " (CA decision, pp. 3-4).
testified that "when Felizardo saw the appellant (accused) on that evening,
he demanded that he be given fish and the appellant asked him to wait Based on the following testimonies, the trial court completely disregarded
until the fishes falling down from the "canastros" had been gathered. the theory of self-defense and upheld the prosecution's version of the
Felizardo was angered, so he asked, "Anong palagay mo sa akin, aso?" The incident. On appeal, the respondent Court of Appeals, while stating that
appellant answer that he must wait as he was just asking for fish. Felizardo unlawful aggression on the part of the victims was clearly established,
boxed the appellant who ducked the blow and who instinctively fought nevertheless concurred in the other factual findings of the trial court. We
back. The two were pacified by the workers loading fishes into the truck. are constrained, however, to disagree with the court a quo and depart
Felizardo left with his lips bleeding but only after he threatened the from the rule that appellate courts win generally not disturb the findings of
appellant "May araw ka rin " About ten minutes later, Felizardo with the the trial court on facts testified to by the witnesses. After carefully reading
handle of a knife sticking out of his front waist returned with his brother, and analyzing the whole records of the case including the testimonies of all
Manuel, who was armed with a hand gun tucked in his waist. They witnesses, We are unable to admit the guilt of the accused of the crimes
proceeded to where the appellant was. 4 Manuel stood near the toilet of charged or to affirm his conviction.
the compound, about an arm's length from the appellant, while Felizardo
went to the rear of the parked truck, about 1-1/2 arm's length from the Before discussing at full length the merits of the petition at bar, We must
appellant. Manuel then asked the appellant, "Baket (sic) mo Sinuntok ang direct attention to certain statements of the respondent court in its
kapatid ko?" While thus explaining, the appellant slowly approached Decision subject of review which negate the court's finding the accused
Manuel, who suddenly warned him, "Huwag kang lalapit, putang-ina mo!" guilty as charged. Thus, the court said, "However, the presence of unlawful
drawing from his waist a half- cocked .45 caliber pistol. The appellant aggression in the case on the part of the Pacheco brothers has been clearly
jumped at Manuel and grabbed the gun from him. So Manuel was pushed established. There is no question as to the fact that the Pacheco brothers
back on the ground sitting down against the toilet wall. When the returned to meet the appellant (accused) because the appellant boxed
appellant saw Manuel pick up something from the ground that appeared Felizardo. It is safe to assume that when the Pacheco brothers returned

11
they were prepared, not only to inquire from the appellant why he boxed the trial court which are at ,Variance with objective physical facts duly
Felizardo, but that they intended to cause injury to the appellant in established and likewise found improbable, considering the scene or
return." (CA decision, pp. 9-10). We find Ourselves curious as to how location of the occurrence.
respondent court arrived at the conclusion that unlawful aggression on the
part of the victims is present despite its finding that (1) Manuel Pacheco 1. Prosecution witness Pablito de Jesus Aquino testified that after
was not armed with a gun (CA Decision. p. 10), and that (2) Felizardo the altercation between Felizardo Pacheco and the accused, Felizardo
Pacheco. conceded to be armed with a knife, was already in flight when returned to their group conversing at the gate of the compound; that
the accused fired at him (CA Decision, p. 8). It is well-established in Manuel Pacheco arrived several minutes later and insisted that they
jurisprudence that unlawful aggression is equivalent to an attack; it is (Manuel and Felizardo) ask the accused why he boxed Felizardo; that the
necessary that the accused be assaulted or that he be attacked, or at least brothers went to the riverbank and asked the accused why he boxed
that he be threatened with an attack in an immediate and imminent Felizardo; that the accused, without answering, went down by the
manner, such as brandishing the knife with which to stab or pointing the outriggers of his boat and started to shoot at Manuel; 9 that Manuel was
gun to discharge against the accused. 5 A mere threatening or intimidating shot on the right side of his chest; that the accused shot him from the
attitude is not a sufficient equivalence of unlawful aggression as it requires outriggers of the boat; that immediately after, Felizardo started to run
for an offensive act to have been made positively determining the intent of towards Calle Pescador but was pursued by the accused; that the accused
the aggressor to cause an injury. 6 Therefore, with the findings that shot once at Felizardo who fell down; that in that position, the accused
Manuel was not armed with a gun nor any weapon with which he can again shot at him twice; and that he never lost sight of Felizardo from the
cause injury and absent any finding that he made any move to place the nine Manuel was shot by the accused and Felizardo ran. 10
accused in actual danger of his life because as found by the respondent
court, the accused shot Manuel who was merely asking why he boxed The candor and credibility of the witness is very much put in doubt by the
Felizardo respondent court cannot assume the fact of unlawful aggression following: (a) The necropsy report and the testimony of Dr. Cueva, a
on the part of victim Manuel Pacheco. Likewise, with the finding that medicolegal officer of the NBI who conducted an autopsy on the victims,
Felizardo Pacheco, who was armed with a knife, had no opportunity to state that Manuel sustained gunshot wounds behind the left armpit, at the
stab the accused as he immediately ran away when he saw his brother left side of the chest, and on the left arm, 11 and, therefore, belying the
shot, respondent court erred in holding that victim Felizardo Pacheco was claim of the witness that he actually saw Manuel shot at the right side of
an unlawful aggressor because having fled, he posed no more danger to his chest. (b) Exhibits "F" and "F-1", consisting of pictures of victim
the accused who would then have no more reason to kill or wound him. 7 Felizardo lying on the ground face up, and Exhibit "F-8", a picture of
The above observations force Us to disregard that particular holding of the Felizardo Pacheco lying beneath the truck, face up, show the falsity in the
questioned decision and review the records in its entirety. witness' testimony that he saw the accused shoot at Felizardo twice while
lying face down after which Felizardo no longer moved. (c) His testimony
In cases such as the one now before Us where there are directly conflicting on cross-examination that he never lost sight of Felizardo and the accused
versions of the incident object of the accusation, the Court in its search for from the time Manuel was killed a Felizardo immediately fled towards
the truth perforce has to look for some facts or circumstances which can Calle Pescador could no be believed without nagging doubts because of
be used as valuable aids in evaluating the probability or improbability of a the undisputed presence of a fishtruck parked along Calle Pescador near t
testimony. 8 We have reviewed the conflicting testimonies of the several riverbank. In the course of his testimony, the witness admit that after the
witnesses presented by both the defense and prosecution and We are second shot, he immediately crossed Calle Pescador to go to the building
convinced that the testimonies of the two eyewitnesses for the on the south, therefore, during those few seconds that he was crossing the
prosecution could not be believed in the face of their statements made in street by the from of the fishtruck, he was not able to observe, what

12
transpired between the accused and Felizardo hence destroying his candor with the group because he found the topic interesting as it was about the
in claiming otherwise. (d) If the version of the witness would be believed forthcoming fiesta of Caloocan and the possibility of Felizardo Pacheco
that the accused was down by the outrigger of his fishing boat moored on becoming the godfather of his son. 13 Viewing all these facts, We are not
the Navotas-Malabon river which on the night in question was on a lower ready to admit without caution that Fuertes could describe in detail an
level than Calle Pescador while Manuel, at the time he was shot was facing incident happening fourteen or fifteen meters away seen through a one
the accused while leaning against the wall of the toilet, their relative meter space (from the wall of the northern building to the high sides of the
position would, therefore, make it physically impossible to explain the fish truck) while he was admittedly actively engaged in a conversation with
gunshot wound found behind Manuel's left armpit and the other wounds others. But what convinces Us to regard the testimony of Fuertes as
admittedly inflicted by an assailant who stood on a higher elevation than incredulous is the very much more detailed description of the
the victim. Aquino's testimony is not only inconsistent with physical facts circumstances leading to Felizardo's death. On cross-examination, Fuertes
duly established, but it also destroys the prosecution's own theory that the stated that he "did not seek cover when he heard the gunshots" 14 — an
victim Manuel Pacheco was killed from behind. implied admission that he did not move from his previous position. He
could not, therefore, have seen the accused pursuing Felizardo or that
2. The prosecution also presented Felicisimo Fuertes as an eye- Felizardo fled towards the sides of the truck or that Felizardo fell when hit
witness to the incident who testified on direct examination 12 that when or that the accused shot twice at Felizardo when he was already down or
Manuel and Felizardo left them, they (the Pachecos) proceeded to the that the accused afterwards returned to the rear of truck and got the fish
riverbank where the accused's motorboat was docked; that Manuel asked and the basket or that he poured them between the brothers, the reason
the accused, "Bakit mo naman sinuntok ang utol ko?" that Manuel was being that all of the transpired behind the rear portion and by that Side of
standing by the toilet of the factory, seven meters away from (the accused the fig truck near the building on the south of Calle Pescador. It is inhuman
who was on his motorboat and fourteen meters away from where the feat for Fuertes, undisputedly standing seven me away from the front of
witness was; that the accused went down from his motorboat and when the fishtruck by that side near t building north of Calle Pescador to see
he was near Manuel, he drew his gun and shot Manuel; that immediately through the body of said truck shown to have very high sides so that a
after, Felizardo fled towards the side of the truck pursued by the accused; person standing upright can barely touch with his raised hand the edge of
that the accused shot at Felizardo while he was still running; that Felizardo the sides 15 and observe what transpired behind the portion and by that
fell face down when hit and the accused again fired twice at Felizardo; that side of the same fishtruck near the building south of Calle Pescador.
Felizardo ducked under the truck; that the accused then went to the back Evidence, to be bell must not only proceed from the mouth of a credible
of the truck, got 2 big fishes and placed them beside Felizardo; that the witness but it must be credible in itself — such as the common experience
accused also got a basketful of fish and poured it in-between the brothers; and observation of mankind can approve as probable under the
and that the accused finally returned to his motorboat. circumstances. We have no test of the truth o human testimony, except its
conformity to our knowledge observation and experience. Whatever is
Fuertes' detailed testimony regarding Manuel's death appears doubtful repugnant to the belongs to the miraculous and is outside of judicial
considering the following facts: he was conversing with others at the gate cognizance. 16
of the compound found on the building north of Calle Pescador; the gate
was about fourteen meters away from Manuel and seven meters away Upon the other hand, without relying on the weakness o prosecution's
from the front of a fishtruck parked along Calle Pescador with its rear evidence, the defense has met the requirement o proving by clear and
portion about 1 meter away from the riverbank; he admitted on cross- convincing evidence all the justifying circumstances of complete self-
examination that when the brothers left them, his attention was already defense. Three witnesses corroborated the accused's testimony. There is
diverted to the topic of conversation and that he continued conversing no reason to disbelieve their testimonies because two of them, Telesforo

13
Andrade and Salvador del Mundo, were on the deck of the fishing boat In the decision under review, the respondent court made a finding that
directly behind the particular area where the shooting took place, and, Manuel was not armed with a gun and that the gun belonged to the
therefore, in a better position to observe the entire event as there was no accused. One of the reasons intimated by the respondent court is the
obstruction to their lines of vision. The third witness, Romeo Santiago, who incredibility for the accused, if truly unarmed, to have had the nerve to
testified only to the fact that Manuel had a gun tucked inside his wrest the gun from Manuel. The court further stressed that "(T)he natural
waistband, was in a store closely by-passed by Manuel when he first reaction of any reasoning man under such circumstances, however daring
approached the group of Aquino. Not only are the witnesses for the he may be, would be either to retreat or get his own weapon or better still
defense more credible because of their vantage position, but the facts manifest his desire for peace or unwillingness to fight." (CA decision, p. 6).
testified to by the defense are confirmed by objective facts not disputed. This is mere conjecture and cannot prevail over positive testimonies that
Manuel had a gun tucked in his waistband 17 and that the accused
From the facts established by the defense, it is clear that Manuel and successfully wrested the gun from Manuel. 18
Felizardo, and not the accused, initiated the unlawful aggression resulting
in their deaths. The fact that the two victims, evidently hostile, placed Another reason offered by respondent court is the fact that the accused
themselves on either side of the accused who was by the rear of the truck, could not produce the gun when asked by the proper authorities. Of
presumably to cut off venues of escape, coupled with the fact that both course, We have held that the act of throwing away the weapon used in
were armed with a gun and a knife, weapons ordinarily considered as the commission of the crime may be considered a circumstance which
fatally dangerous, show that the victims were ready and looking for negates the plea of self-defense. 19 However, this is not meant to be an
trouble. Even the respondent court is of the impression that "when the absolute rule precluding the consideration of other factors in determining
Pacheco brothers returned they were prepared not only to inquire from the probability or improbability of an offered explanation. Herein, the
the appellant (accused) why he boxed Felizardo, but that they intended to conduct of the accused shortly after the incident impresses upon the Court
cause injury to the appellant in return." (CA decision, pp. 9-10). So when that the throwing away of the gun was not for the purpose of concealment
Manuel drew his half-cocked gun from his waist which the accused but did happen as explained. When investigated by the proper authorities
successfully wrested from him resulting in Manuel's being pushed against immediately after the incident, the accused admitted the killing of the two
the wall where he fen in a sitting position, and despite this, he picked up deceased but that he grabbed the gun from Manuel, and when asked to
what the accused thoug ht to be was an iron gear and moved to charge produce the weapon, the accused declared that the same was grabbed by
towards the accused, the only normal conclusion to be derived from such his wife and was thrown into the river.20 Moreover, it also appears as an
acts of Manuel is his evident intent and persistent determination to harm unrebutted evidence that the accused secured the services of a local diver
the accused. The same is true of Felizardo. When he attempted to stab the to help him locate the missing gun so that it could be used in his defense.
accused but was frustrated only because the thrust was evaded by the 21 All of these factors — the accused's disistance from flight, peaceful
latter, and though hit in the arm he still followed the knife thrown beneath surrender, spontaneous and voluntary statements to the proper
the truck, picked the knife and stood ("akmang tatayo") despite warnings authorities before he had time to contrive a fabricated defense, and his
from the accused to release the knife, such acts amount to continuing acts efforts in locating the missing gun — tend to give credence to his
of unlawful aggression showing the victim's determination to persist in his allegations.
purpose of wounding or killing the accused. In both cases of clear, real,
direct and positive aggression, the accused was justified in using the gun, The second element of self-defense, that is, reasonable necessity for the
his only means of defense, against his assailants as he was placed in real means employed in repelling the unlawful aggression, is likewise present.
peril of his life. Here, We have an unarmed man assaulted by two armed brothers
determined to exact payment for the insult and injury earlier caused by the

14
accused to the younger brother. To require him to flee or to manifest theory of the defense. According to Dr. Manuel Cueva, Jr., the following
peace, as would, respectively, require him to run the risk of exposing his gunshot wounds were found:
back to danger or would force upon him an act that may be repugnant to
his sense of values. As it happened, accused chose to stand his ground and (1) On Manuel —
moved to take the offensive by attempting to wrest the better weapon
from one of his assailants. Having successfully grabbed the gun from (a) Wound No. 1 with entrance hole, 1.6 x 1.5 cm. oval in shape
Manuel, there was reasonable necessity for the accused to use the gun to located at lower armpit region; so that the point of entrance of this
disable his assailants because the gun was his only means of defense gunshot wound was located at a region behind the axillary or the left
against two aggressors who by their decidedly aggressive attitude were armpit; it hit the victim at the left axillary bone and travels inside the body
manifestly determined to consummate their desire to cause injury to the going to the front and slightly downwards from left to the right side of the
accused. It is not true that after the accused was able to wrest the gun body producing a point of exit at the right chest; that assuming that the
from Manuel, he was no longer in peril of his life because even after victim was standing in upright position, the appellant must probably be in
Manuel was disarmed, he picked up what the accused thought to be was a higher elevation behind and to the left side of the victim at the moment
an iron gear and proceeded to charge against the accused, thus imperiling of the infliction of the wound.
his life while the other brother was behind ready to attack him. Even at the
moment that the accused was repelling the attack of Manuel, the accused (b) Wound No. 2 consists of an entrance wound located at the left
was likewise exposed to the danger posed by Felizardo who was behind side of the chest of an oval shape with a direction from the left to the right
him and armed with a knife. Necessarily, he had to disable Manuel in order side of the body g ing slightly downwards to the front, and the bullet
to cope with Felizardo. Neither is it true that after Felizardo lost his knife traveled blindly beneath the skin and in the front portion of the right
because he was hit by the accused on the right arm, Felizardo desisted chest; that there was no point of exit.
from his attack so that the accused was not justified in killing him. From
the facts testified to by the accused, Felizardo even when wounded tried (c) Wound No. 3 which is minor in nature at the left arm on the
to retrieve the knife and the accused fired the fatal shots only when medial aspect that took a short route underneath the skin producing an
Felizardo made a move to stand up disregarding the accused's warning to exit wound on the same armpit very near the same point of entry.
release the knife. If through the various stages of the fight, the accused
desisted from using the gun, the result of the combat would have been 2) On Felizardo —
very different; perhaps, the accused, instead of being the slayer, would
himself have been killed. Certainly, the accused was not in duty bound to (a) Wound No. 1 with ail entrance hole of 2.0 x 1.6 cm., roughly oval
expose himself to such a contingency, and while the attacks continued, in shape, located at the right posterior axillary fold near the armpit which
and, consequently, the danger to his person or to his life subsisted, he had has a valid track directed from the right to the left side of the body going
a perfect and indisputable right to repel such danger by wounding his slightly downwards, going to the front where they extracted a .45 caliber
adversaries, if necessary, as from the Circumstances of the case it was, bullet at the left arm; that the bullet perforated and lacerated at the right
without any doubt whatever, and even to disable them completely so that lung, the egg (sic) blood vessels of the heart and the left lung before it
they may not continue the assault. 22 ended at the muscle of the right forearm; that if the victim and appellant
were in standing position at the same elevation, the appellant must have
The location of the gunshot wounds found on the bodies of Manuel and shot the victim while the appellant was slightly at the back to the right side
Felizardo and the trajectories of the bullets confirm, rather than belie, the with the muzzle of the gun at a considerable distance from the point of
entrance of the gunshot wound; and that assuming that the appellant and

15
the victim were not on the same level and that the appellant was on a assailant stood on a higher elevation than the victim, confirming,
higher level, the latter would also be at the back or behind at an elevated therefore, the version of the accused. The bullets could not have had these
level with the muzzle of the gun aimed downwards. trajectories if the accused were down by the outriggers of his boat moored
by the river which, on the night in question, was a lower level than Calle
(b) Wound No. 2 with the point of entry at the back of the chest Pescador as testified to by prosecution witness Pablito Aquino.
below the right border blade presenting all oval appearance with a
diameter of that of a,45 caliber gun wound and it assumed a tract inside Again, the location of the wounds sustained by Felizardo confirms the
the body from the left side of the body pointing from right to left going version of the defense. The location of the wound at the back of his right
upwards and to the front indicating that the gun man was directly behind arm (wound no. 3) verified the fact that Felizardo was shot by the accused
to the right side of the victim, with the victim in a standing position when immediately after evading, by stepping backwards, the thrust of Felizardo's
he sustained the gunshot wound. knife thereby putting the accused behind and to the right side of Felizardo
who would not yet have been able to check his forward momentum
(c) Wound No. 3 found behind the right arm, the bone on the right caused by the force of his thrust. This particular wound also sustained the
arm that travels downwards where the bullet was recovered at the middle explanation offered by the defense as to why the knife was released by
portion of the right forearm, underneath the skin, and the bullet recovered Felizardo and thrown beneath the rear portion of the truck. Those wounds
here was a .45 caliber bullet; that the wound must have been inflicted described as wound no. 1 and wound no. 2 admittedly inflicted from
from behind, as it was located at the back of the right arm behind do not necessarily negate the plea of self- defense because the
accused all along insisted that he followed Felizardo who retrieved the
The wound found behind Manuel's left armpit particularly assumes knife from beneath the rear portion of the truck. Wound no. 1 specifically
decisive importance in pointing out which of the conflicting versions is indicated that the assailant was on a higher elevation with the muzzle of
true. Aforestated in this decision is the physical impossibility for Manuel to the gun aimed downwards. Wound no. 2 indicated that the victim was in a
have sustained this wound if the testimonies of the witnesses for the standing position when he sustained the wound. These exactly jibed with
prosecution would be believed as they put the accused and Manuel facing the defense that the accused fired the fatal shots during the few seconds
each other at the time Manuel was shot. On the other hand, this particular that took the victim to retrieve the knife in what would naturally be a
wound finds a plausible explanation in the version of the defense that the bending position (wound no. 1) and then straighten up (wound no. 2) in
accused shot Manuel when he saw him picked up something from the order to continue his attack.
ground and then proceeded to charge towards him in a half-crouching
position. Manuel must have sustained this particular wound at the very act It is also of record that the investigating authorities found a nickel plated
of picking up what the accused thought to be was an iron gear because dagger on the ground lying near the right hip of the body of Felizardo. 23
then, Manuel, who was slumped against the toilet wall, must have twisted This fact strongly confirmed that Felizardo had the knife with him when
his body towards the right as one is wont to do when one looks for shot and precluded all doubts as to the veracity of the defense evidence.
something on the right, and must have stooped a little bit as he picked it
up from the ground, leaving therefore the back of his left shoulder exposed That leaves Us to the last question of whether or not the accused did not
as a possible target for the accused who was in front standing over him. give sufficient provocation for the unlawful aggression. The respondent
The other two gunshot wounds must have been sustained when Manuel court maintained, thus, "(T)here was a fist fight between the appellant and
proceeded to charge towards the accused as these wounds indicate a the victim Felizardo in which the appellant bested Felizardo by boxing him
frontal confrontation. Moreover, all of these gunshot wounds show a track at the mouth. This provocation, to Our mind, is sufficient to stir Felizardo
of the left to right, going downwards to the front, indicating that the into returning to even up the score. " (CA decision, p. 5). This stance is

16
obviously erroneous. The defense alone presented evidence as to the The last factor which We took into consideration in finding that the plea of
circumstances leading to the fist fight between the accused and Felizardo. self-defense is more credible is the lack of motive of the accused in
It remains, therefore, unrebutted, and thus from the facts narrated by the attacking and killing the two deceased. We have stated in the recent case
witnesses f or the defense, Felizardo apparently insulted by the accused's 26 that although it is the general rule that the presence of motive in the
refusal to give him fish immediately and that he should wait until the fish killing of a person is not indispensable to a conviction especially where the
falling from the "canastro" be all gathered, as manifested in his following Identity of the assailant is duly established by other competent evidence or
remarks, "(A)nong palagay mo sa akin, aso? " he struck the first blow which is disputed, as in this case, nonetheless, the absence of such motive is
was however evaded by the accused who in turn successfully landed a important in ascertaining the truth as between two antagonistic theories
blow on him. Even at this stage, it was Felizardo who initiated the fight and or versions of the killing. Herein, it was the two victims who had reason to
if he was bested, it would be preposterous to say that he had a right to harm the accused. After the altercation between the accused and Felizardo
return and "even up the score" because such a pronouncement where in the ensuing fistfight the accused bested Felizardo, the latter
erroneously sanctions aggression in return for an insult brought by uttered a threat, "(M)ay araw ka rin". It is natural to assume that Felizardo
Felizardo upon himself alone. Moreover, even if We were to disregard the felt humiliated not only in losing the fight which Felizardo himself had
testimonies of the defense witnesses that it was Felizardo who struck the started to the accused but also for having been refused his demand for fish
first blow, We would still be convinced that that would be the case and having been told to wait until all the fish falling from the "canastro"
because in the nature of the order of things, the person who was deeply shall have been gathered for which he felt that he was treated like a dog.
offended by the insult was the one who believed he had a right to demand The opportunity for retaliation arose when his older brother, Manuel,
explanation of the perpetrator of that insult, and the one who also struck arrived and insisted that they confront the accused.
the first blow then he was not satisfied with the explanation offered. 24
After a painstaking review of the whole record of the case, We are
To Our mind, the first altercation between Felizardo and the accused convinced that all the elements of self-defense are present. The evidence
ended when the former left but not without first uttering a threat "May for the defense has proven clearly that the, accused acted reasonably
araw ka rin." This showed that Felizardo had no intention to continue the according to his instinct of self-preservation. The necessity of the killings
fight but would wait for a more opportune time. In fact, Felizardo returned committed by him exempts him from liability thereon. Upon the other
to the group with whom he was previously conversing with. It was only hand, the evidence for the prosecution falls short of that requisite
upon the order of his older brother, who, it must be noted, arrived only sufficiency and certainty which can persuade the human mind to agree
minutes later, that both returned to where the accused was. In other with the conclusion of guilt. 27
words, We have reason to believe that if Manuel had not arrived right
there and then, Felizardo would not have returned alone to make good his WHEREFORE, the decision appealed from is reversed and set aside and
threat. Therefore, there were two fights that took place: one, the another one is entered acquitting the accused, Carlos Castañares of all the
altercation between the accused and Felizardo, and second, the assault on charges against him, with costs de oficio.
the accused by both Felizardo and Manuel. Because of the circumstances
above discussed, there was no continuity in the fights despite the lapse of SO ORDERED:
only ten minutes so that even if We were to admit, which We do not, that
the accused gave sufficient provocation Such provocation ",as not
proximate nor immediate to the aggression and therefore should still be G.R. Nos. L-33466-67 April 20, 1983
disregarded. 25
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

17
vs. At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus
MAMERTO NARVAEZ, defendant-appellant. Verano and Cesar Ibanez together with the two deceased Davis Fleischer
and Flaviano Rubia, were fencing the land of George Fleischer, father of
The Solicitor General for plaintiff-appellee. deceased Davis Fleischer. The place was in the boundary of the highway
and the hacienda owned by George Fleischer. This is located in the
Gonzalo B. Callanta (counsel de oficio) for defendant-appellant. municipality of Maitum, South Cotabato. At the place of the fencing is the
house and rice drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n.,
Pieza II). At that time, appellant was taking his rest, but when he heard
MAKASIAR, J.: that the walls of his house were being chiselled, he arose and there he saw
the fencing going on. If the fencing would go on, appellant would be
This is an appeal from the decision of the Court of First Instance of South prevented from getting into his house and the bodega of his ricemill. So he
Cotabato, Branch I, in Criminal Cases Nos. 1815 and 1816 for murder addressed the group, saying 'Pare, if possible you stop destroying my
which, after a joint trial, resulted in the conviction of the accused in a house and if possible we will talk it over what is good,' addressing the
decision rendered on September 8, 1970, with the following deceased Rubia, who is appellant's compadre. The deceased Fleischer,
pronouncement: however, answered: 'No, gademit, proceed, go ahead.' Appellant
apparently lost his equilibrium and he got his gun and shot Fleischer,
Thus, we have a crime of MURDER qualified by treachery with the hitting him. As Fleischer fell down, Rubia ran towards the jeep, and
aggravating circumstance of evident premeditation offset by the mitigating knowing there is a gun on the jeep, appellant fired at Rubia, likewise
circumstance of voluntary surrender. The proper penalty imposable, hitting him (pp. 127-133, t.s.n., Defense transcript). Both Fleischer and
therefore, is RECLUSION PERPETUA (Arts. 248 and 64, Revised Penal Code). Rubia died as a result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9,
Appellant's Brief, p.161, rec.).
Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of
the crime of murder, It appears, however, that this incident is intertwined with the long drawn
out legal battle between the Fleischer and Co., Inc. of which deceased
(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION Fleischer was the secretary-treasurer and deceased Rubia the assistant
PERPETUA, to indemnify the heirs of the deceased Davis Q. Fleischer in the manager, on the one hand, and the land settlers of Cotabato, among
sum of P 12,000.00 as compensatory damages, P 10,000.00 as moral whom was appellant.
damages, P 2,000.00 as attorney's fees, the offended party having been
represented by a private prosecutor, and to pay the costs; From the available records of the related cases which had been brought to
the Court of Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this Court
(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION on certiorari (G.R. No. L-26757 and L-45504), WE take judicial notice of the
PERPETUA, to indemnify the heirs of the deceased Flaviano Rubia in the following antecedent facts:
sum of P12,000.00 as compensatory damages, P10,000.00 as moral
damages, P2,000.00 as attorney's fees, the offended party having been Appellant was among those persons from northern and central Luzon who
represent by a private prosecutor, and to pay the costs (p. 48, rec.). went to Mindanao in 1937 and settled in Maitum, a former sitio of Kiamba
and now a separate municipality of South Cotabato. He established his
The facts are summarized in the People's brief, as follows: residence therein, built his house, cultivated the area, and was among
those who petitioned then President Manuel L. Quezon to order the

18
subdivision of the defunct Celebes Plantation and nearby Kalaong from threats and intimidation, deceit, misrepresentation and fraudulent
Plantation totalling about 2,000 hectares, for distribution among the machination on the part of the company. They appealed to the Court of
settlers. Appeals (CA-G.R. No. 28858-R) which likewise affirmed on August 16, 1965
the decision of the Court of First Instance in favor of the company.
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer,
an American landowner in Negros Oriental, filed sales application No. This resulted in the ouster of the settlers by an order of the Court of First
21983 on June 3, 1937 over the same area formerly leased and later Instance dated September 24, 1966, from the land which they had been
abandoned by Celebes Plantation Company, covering 1,017.2234 hectares. occupying for about 30 years. Among those ejected was the appellant who,
to avoid trouble, voluntarily dismantled his house, built in 1947 at a cost of
Meanwhile, the subdivision was ordered and a public land surveyor did the around P20,000.00, and transferred to his other house which he built in
actual survey in 1941 but the survey report was not submitted until 1946 1962 or 1963 near the highway. The second house is not far from the site
because of the outbreak of the second world war. According to the survey, of the dismantled house. Its ground floor has a store operated by Mrs.
only 300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, June Talens who was renting a portion thereof. He also transferred his
were set aside for Sales Application No. 21983, while the rest were store from his former residence to the house near the highway. Aside from
subdivided into sublots of 5 to 6 hectares each to be distributed among the the store, he also had a rice mill located about 15 meters east of the house
settlers (pp. 32-33, G.R. No. L-45504). and a concrete pavement between the rice mill and the house, which is
used for drying grains and copra.
The 300 hectares set aside for the sales application of Fleischer and
Company was declared open for disposition, appraised and advertised for On November 14, 1966, appellant was among the settlers on whose behalf
public auction. At the public auction held in Manila on August 14, 1948, Jose V. Gamboa and other leaders filed Civil Case No. 755 in the Court of
Fleischer and Company was the only bidder for P6,000.00. But because of First Instance of Cotabato, Branch I. to obtain an injunction or annulment
protests from the settlers the corresponding award in its favor was held in of the order of award with prayer for preliminary injunction. During the
abeyance, while an investigator was sent by the Director of Lands to pendency of this case, appellant on February 21, 1967 entered into a
Kiamba in the person of Atty. Jose T. Gozon Atty. Gozon came back after contract of lease with the company whereby he agreed to lease an area of
ten days with an amicable settlement signed by the representative of the approximately 100 to 140 square meters of Lot No. 38 from the company
settlers. This amicable settlement was later repudiated by the settlers, but (Exh. 9, p. 1, Folder of Exhibits for Defense) for a consideration of P16.00
the Director of Lands, acting upon the report of Atty. Gozon, approved the monthly. According to him, he signed the contract although the ownership
same and ordered the formal award of the land in question to Fleischer of the land was still uncertain, in order to avoid trouble, until the question
and Company. The settlers appealed to the Secretary of Agriculture and of ownership could be decided. He never paid the agreed rental, although
Natural Resources, who, however, affirmed the decision in favor of the he alleges that the milling job they did for Rubia was considered payment.
company. On June 25, 1968, deceased Fleischer wrote him a letter with the following
tenor:
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First
Instance of Cotabato which then consisted only of one sala, for the You have not paid six months rental to Fleischers & Co., Inc. for that
purpose of annulling the order of the Secretary of Agriculture and Natural portion of land in which your house and ricemill are located as per
Resources which affirmed the order of the Director of Lands awarding the agreement executed on February 21, 1967. You have not paid as as even
contested land to the company. The settlers as plaintiffs, lost that case in after repeated attempts of collection made by Mr. Flaviano Rubia and
view of the amicable settlement which they had repudiated as resulting myself.

19
First Assignment of Error: That the lower court erred in convicting
In view of the obvious fact that you do not comply with the agreement, I defendant-appellant despite the fact that he acted in defense of his
have no alternative but to terminate our agreement on this date. person; and

I am giving you six months to remove your house, ricemill, bodega, and Second Assignment of Error: That the court a quo also erred in
water pitcher pumps from the land of Fleischers & Co., Inc. This six- month convicting defendant-appellant although he acted in defense of his rights
period shall expire on December 31, 1966. (p. 20 of Appellant's Brief, p. 145, rec.).

In the event the above constructions have not been removed within the The act of killing of the two deceased by appellant is not disputed.
six- month period, the company shall cause their immediate demolition Appellant admitted having shot them from the window of his house with
(Exhibit 10, p. 2, supra). the shotgun which he surrendered to the police authorities. He claims,
however, that he did so in defense of his person and of his rights, and
On August 21, 1968, both deceased, together with their laborers, therefore he should be exempt from criminal liability.
commenced fencing Lot 38 by putting bamboo posts along the property
line parallel to the highway. Some posts were planted right on the Defense of one's person or rights is treated as a justifying circumstance
concrete drier of appellant, thereby cutting diagonally across its center under Art. 11, par. 1 of the Revised Penal Code, but in order for it to be
(pp. 227-228, t.s.n., Vol. 2), with the last post just adjacent to appellant's appreciated, the following requisites must occur:
house (p. 231, t.s.n., supra). The fence, when finished, would have the
effect of shutting off the accessibility to appellant's house and rice mill First. Unlawful aggression;
from the highway, since the door of the same opens to the Fleischers' side.
The fencing continued on that fateful day of August 22, 1968, with the Second. Reasonable necessity of the means employed to prevent or repel
installation of four strands of barbed wire to the posts. it;

At about 2:30 p.m. on the said day, appellant who was taking a nap after Third. Lack of sufficient provocation on the part of the person defending
working on his farm all morning, was awakened by some noise as if the himself (Art. 11, par. 1, Revised Penal Code, as amended).
wall of his house was being chiselled. Getting up and looking out of the
window, he found that one of the laborers of Fleischer was indeed The aggression referred to by appellant is the angry utterance by deceased
chiselling the wall of his house with a crowbar (p. 129, t.s.n., Vol. 6), while Fleischer of the following words: "Hindi, sigue, gademit, avante", in answer
deceased Rubia was nailing the barbed wire and deceased Fleischer was to his request addressed to his compadre, the deceased Rubia, when he
commanding his laborers. The jeep used by the deceased was parked on said, "Pare, hinto mona ninyo at pag-usapan natin kung ano ang mabuti"
the highway. The rest of the incident is narrated in the People's Brief as (pp. 227-229, t.s.n., Vol. 6). This was in reaction to his having been
above-quoted. Appellant surrendered to the police thereafter, bringing awakened to see the wall of his house being chiselled. The verbal exchange
with him shotgun No. 1119576 and claiming he shot two persons (Exh. Pp. took place while the two deceased were on the ground doing the fencing
31, Defense Exhibits). and the appellant was up in his house looking out of his window (pp. 225-
227, supra). According to appellant, Fleischer's remarks caused this
Appellant now questions the propriety of his conviction, assigning the reaction in him: "As if, I lost my senses and unknowingly I took the gun on
following errors: the bed and unknowingly also I shot Mr. Fleischer, without realizing it, I

20
shot Mr. Fleischer" (p. 132, supra). As for the shooting of Rubia, appellant the fencing. This was indeed aggression, not on the person of appellant,
testified: but on his property rights.

When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing The question is, was the aggression unlawful or lawful? Did the victims
the shot, Mr. Rubia looked at Mr. Fleischer and when Mr. Fleischer fell have a right to fence off the contested property, to destroy appellant's
down, Mr. Rubia ran towards the jeep and knowing that there was a house and to shut off his ingress and egress to his residence and the
firearm in the jeep and thinking that if he will take that firearm he will kill highway?
me, I shot at him (p. 132, supra, Emphasis supplied).
Article 30 of the Civil Code recognizes the right of every owner to enclose
The foregoing statements of appellant were never controverted by the or fence his land or tenements.
prosecution. They claim, however, that the deceased were in lawful
exercise of their rights of ownership over the land in question, when they However, at the time of the incident on August 22, 1968, Civil Case no. 755
did the fencing that sealed off appellant's access to the highway. for annulment of the order of award to Fleischer and Company was still
pending in the Court of First Instance of Cotabato. The parties could not
A review of the circumstances prior to the shooting as borne by the have known that the case would be dismissed over a year after the
evidence reveals that five persons, consisting of the deceased and their incident on August 22, 1968, as it was dismissed on January 23, 1970 on
three laborers, were doing the fencing and chiselling of the walls of ground of res judicata, in view of the dismissal in 1965 (by the Court of
appellant's house. The fence they were putting up was made of bamboo Appeals) of Civil Case No. 240 filed in 1950 for the annulment of the award
posts to which were being nailed strands of barbed wire in several layers. to the company, between the same parties, which the company won by
Obviously, they were using tools which could be lethal weapons, such as virtue of the compromise agreement in spite of the subsequent
nail and hammer, bolo or bamboo cutter, pliers, crowbar, and other repudiation by the settlers of said compromise agreement; and that such
necessary gadgets. Besides, it was not disputed that the jeep which they 1970 dismissal also carried the dismissal of the supplemental petition filed
used in going to the place was parked just a few steps away, and in it there by the Republic of the Philippines on November 28, 1968 to annul the sales
was a gun leaning near the steering wheel. When the appellant woke up to patent and to cancel the corresponding certificate of title issued to the
the sound of the chiselling on his walls, his first reaction was to look out of company, on the ground that the Director of Lands had no authority to
the window. Then he saw the damage being done to his house, conduct the sale due to his failure to comply with the mandatory
compounded by the fact that his house and rice mill will be shut off from requirements for publication. The dismissal of the government's
the highway by the fence once it is finished. He therefore appealed to his supplemental petition was premised on the ground that after its filing on
compadre, the deceased Rubia, to stop what they were doing and to talk November 28, 1968, nothing more was done by the petitioner Republic of
things over with him. But deceased Fleischer answered angrily with the Philippines except to adopt all the evidence and arguments of plaintiffs
'gademit' and directed his men to proceed with what they were doing. with whom it joined as parties-plaintiffs.

The actuation of deceased Fleischer in angrily ordering the continuance of Hence, it is reasonable to believe that appellant was indeed hoping for a
the fencing would have resulted in the further chiselling of the walls of favorable judgment in Civil Case No. 755 filed on November 14, 1966 and
appellant's house as well as the closure of the access to and from his house his execution of the contract of lease on February 21, 1967 was just to
and rice mill-which were not only imminent but were actually in progress. avoid trouble. This was explained by him during cross-examination on
There is no question, therefore, that there was aggression on the part of January 21, 1970, thus:
the victims: Fleischer was ordering, and Rubia was actually participating in

21
It happened this way: we talked it over with my Mrs. that we better rent
the place because even though we do not know who really owns this Art. 429. The owner or lawful possessor of a thing has the right to exclude
portion to avoid trouble. To avoid trouble we better pay while waiting for any person from the enjoyment and disposal thereof. For this purpose, he
the case because at that time, it was not known who is the right owner of may use such force as may be reasonably necessary to repel or prevent an
the place. So we decided until things will clear up and determine who is actual or threatened unlawful physical invasion or usurpation of his
really the owner, we decided to pay rentals (p. 169, t.s.n., Vol.6). property (Emphasis supplied).

In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, The reasonableness of the resistance is also a requirement of the justifying
Defense Exhibits) within which to vacate the land. He should have allowed circumstance of self-defense or defense of one's rights under paragraph 1
appellant the peaceful enjoyment of his properties up to that time, instead of Article 11, Revised Penal Code. When the appellant fired his shotgun
of chiselling the walls of his house and closing appellant's entrance and exit from his window, killing his two victims, his resistance was
to the highway. disproportionate to the attack.

The following provisions of the Civil Code of the Philippines are in point: WE find, however, that the third element of defense of property is present,
i.e., lack of sufficient provocation on the part of appellant who was
Art. 536. In no case may possession be acquired through force or defending his property. As a matter of fact, there was no provocation at all
intimidation as long as there is a possessor who objects thereto. He who on his part, since he was asleep at first and was only awakened by the
believes that he has an action or a right to deprive another of the holding noise produced by the victims and their laborers. His plea for the deceased
of a thing must invoke the aid of the competent court, if the holder should and their men to stop and talk things over with him was no provocation at
refuse to deliver the thing. all.

Art. 539. Every possessor has a right to be respected in his possession; and Be that as it may, appellant's act in killing the deceased was not justifiable,
should he be disturbed therein he shall be protected in or restored to said since not all the elements for justification are present. He should therefore
possession by the means established by the laws and the Rules of Court be held responsible for the death of his victims, but he could be credited
(Articles 536 and 539, Civil Code of the Philippines). with the special mitigating circumstance of incomplete defense, pursuant
to paragraph 6, Article 13 of the Revised Penal Code.
Conformably to the foregoing provisions, the deceased had no right to
destroy or cause damage to appellant's house, nor to close his accessibility The crime committed is homicide on two counts. The qualifying
to the highway while he was pleading with them to stop and talk things circumstance of treachery cannot be appreciated in this case because of
over with him. The assault on appellant's property, therefore, amounts to the presence of provocation on the part of the deceased. As WE held
unlawful aggression as contemplated by law. earlier in People vs. Manlapaz (55 SCRA 598), the element of a sudden
unprovoked attack is therefore lacking.
Illegal aggression is equivalent to assault or at least threatened assault of
immediate and imminent kind (People vs. Encomiendas, 46 SCRA 522). Moreover, in order to appreciate alevosia, "it must clearly appear that the
method of assault adopted by the aggressor was deliberately chosen with
In the case at bar, there was an actual physical invasion of appellant's a special view to the accomplishment of the act without risk to the
property which he had the right to resist, pursuant to Art. 429 of the Civil assailant from any defense that the party assailed might have made. This
Code of the Philippines which provides:

22
cannot be said of a situation where the slayer acted instantaneously ..." killing, and clung to his premeditated act, the trial court's conclusion as to
(People vs. Cañete, 44 Phil. 481). the presence of such circumstance may not be endorsed.

WE likewise find the aggravating (qualifying) circumstance of evident Evident premeditation is further negated by appellant pleading with the
premeditation not sufficiently established. The only evidence presented to victims to stop the fencing and destroying his house and to talk things over
prove this circumstance was the testimony of Crisanto Ibañez, 37 years old, just before the shooting.
married, resident of Maitum, South Cotabato, and a laborer of Fleischer
and Company, which may be summarized as follows: But the trial court has properly appreciated the presence of the mitigating
circumstance of voluntary surrender, it appearing that appellant
On August 20, 1968 (two days before the incident) at about 7:00 A.M., he surrendered to the authorities soon after the shooting.
was drying corn near the house of Mr. and Mrs. Mamerto Narvaez at the
crossing, Maitum, South Cotabato, when the accused and his wife talked to Likewise, We find that passion and obfuscation attended the commission
him. Mrs. Narvaez asked him to help them, as he was working in the of the crime. The appellant awoke to find his house being damaged and its
hacienda. She further told him that if they fenced their house, there is a accessibility to the highway as well as of his rice mill bodega being closed.
head that will be broken. Mamerto Narvaez added 'Noy, it is better that Not only was his house being unlawfully violated; his business was also in
you will tell Mr. Fleischer because there will be nobody who will break his danger of closing down for lack of access to the highway. These
head but I will be the one.' He relayed this to Mr. Flaviano Rubia, but the circumstances, coming so near to the time when his first house was
latter told him not to believe as they were only Idle threats designed to get dismantled, thus forcing him to transfer to his only remaining house, must
him out of the hacienda (pp. 297-303, t.s.n., Vol. 2). have so aggravated his obfuscation that he lost momentarily all reason
causing him to reach for his shotgun and fire at the victims in defense of
This single evidence is not sufficient to warrant appreciation of the his rights. Considering the antecedent facts of this case, where appellant
aggravating circumstance of evident premeditation. As WE have had thirty years earlier migrated to this so-called "land of promise" with
consistently held, there must be "direct evidence of the planning or dreams and hopes of relative prosperity and tranquility, only to find his
preparation to kill the victim, .... it is not enough that premeditation be castle crumbling at the hands of the deceased, his dispassionate plea going
suspected or surmised, but the criminal intent must be evidenced by unheeded-all these could be too much for any man-he should be credited
notorious outward acts evincing the determination to commit the crime" with this mitigating circumstance.
(People vs. Ordioles, 42 SCRA 238). Besides, there must be a "showing"
that the accused premeditated the killing; that the culprit clung to their Consequently, appellant is guilty of two crimes of homicide only, the killing
(his) premeditated act; and that there was sufficient interval between the not being attended by any qualifying nor aggravating circumstance, but
premeditation and the execution of the crime to allow them (him) to extenuated by the privileged mitigating circumstance of incomplete
reflect upon the consequences of the act" (People vs. Gida, 102 SCRA 70). defense-in view of the presence of unlawful aggression on the part of the
victims and lack of sufficient provocation on the part of the appellant-and
Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the by two generic mitigating circumstance of voluntary surrender and passion
deceased Davis Fleischer, neutralizes his credibility. and obfuscation.

Since in the case at bar, there was no direct evidence of the planning or Article 249 of the Revised Penal Code prescribes the penalty for homicide
preparation to kill the victims nor that the accused premeditated the as reclusion temporal. Pursuant to Article 69, supra, the penalty lower by
one or two degrees shall be imposed if the deed is not wholly excusable by

23
reason of the lack of some of the conditions required to justify the same. the provisions of Art. 39 applicable to fines only and not to reparation of
Considering that the majority of the requirements for defense of property the damage caused, indemnification of consequential damages and costs
are present, the penalty may be lowered by two degrees, i.e., to prision of proceedings. Considering that Republic Act 5465 is favorable to the
correccional And under paragraph 5 of Article 64, the same may further be accused who is not a habitual delinquent, it may be given retroactive effect
reduced by one degree, i.e., arresto mayor, because of the presence of two pursuant to Article 22 of the Revised Penal Code.
mitigating circumstances and no aggravating circumstance.
WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT
The civil liability of the appellant should be modified. In the case of Zulueta OF ONLY TWO (2) HOMICIDES, MITIGATED BY THE PRIVILEGED
vs. Pan American World Airways (43 SCRA 397), the award for moral EXTENUATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS
damages was reduced because the plaintiff contributed to the gravity of BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY
defendant's reaction. In the case at bar, the victims not only contributed SURRENDER AND OBFUSCATION, WITHOUT ANY AGGRAVATING
but they actually provoked the attack by damaging appellant's properties CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN
and business. Considering appellant's standing in the community, being IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO
married to a municipal councilor, the victims' actuations were apparently INDEMNIFY EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OF
designed to humiliate him and destroy his reputation. The records disclose FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS,
that his wife, councilor Feliza Narvaez, was also charged in these two cases WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD FOR
and detained without bail despite the absence of evidence linking her to MORAL DAMAGES AND ATTORNEY'S FEES.
the killings. She was dropped as a defendant only upon motion of the
prosecution dated October 31, 1968. (p. 14, CFI rec. of Crim. Case No. CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR
1816), but acted upon on November 4, 1968 (p. 58, CFI rec. of Criminal ALMOST FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER
Case No. 1815). ON AUGUST 22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO
COSTS.
Moreover, these cases arose out of an inordinate desire on the part of
Fleischer and Company, despite its extensive landholdings in a Central SO ORDERED.
Visayan province, to extend its accumulation of public lands to the
resettlement areas of Cotabato. Since it had the capability-financial and Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De Castro, Melencio-
otherwise-to carry out its land accumulation scheme, the lowly settlers, Herrera, Escolin Vasquez and Relova, JJ., concur.
who uprooted their families from their native soil in Luzon to take
advantage of the government's resettlement program, but had no Aquino, J., is on leave.
sufficient means to fight the big landowners, were the ones prejudiced.
Thus, the moral and material suffering of appellant and his family deserves Plana, J., in the result.
leniency as to his civil liability.

Furthermore, Article 39 of the Revised Penal Code requires a person


convicted of prision correccional or arrests mayor and fine who has no
property with which to meet his civil liabilities to serve a subsidiary
imprisonment at the rate of one (1) day for each P 2.50. However, the Separate Opinions
amendment introduced by Republic Act No. 5465 on April 21, 1969 made

24
was prision mayor plus the indemnification to each group of heirs of Davis
Fleischer and of Flamiano Rubia of the sum of Four Thousand (P4,000.00)
ABAD SANTOS, J., dissenting: Pesos, without subsidiary imprisonment, but without any award for moral
damages and attorney's fees.
I dissent. The self-defense of the Revised Penal Code refers to unlawful
aggression on persons, not property Plana, J., in the result. Considering that appellant has been under detention for almost fourteen
(14) years now since August 22, 1968, he has served the penalty and
should be released.

GUTIERREZ, JR., J., dissenting:

While I agree with the order to release the appellant, I am constrained to Separate Opinions
dissent in part. It is true that Art. 429, Civil Code of the Philippines,
provides that the owner or legal possessor of a thing may use such force as ABAD SANTOS, J., dissenting:
may be reasonably necessary to repel or prevent an actual or threatened
unlawful physical invasion or usurpation of his property. It seems to me, I dissent. The self-defense of the Revised Penal Code refers to unlawful
however, that an attack on the person defending his property is an aggression on persons, not property Plana, J., in the result.
indispensable element where an accused pleads self-defense but what is
basically defended is only property.
GUTIERREZ, JR., J., dissenting:
Defense of property is not of such importance as the right to life and
defense of property can only be invoked when it is coupled with some While I agree with the order to release the appellant, I am constrained to
form of attack on the person of one entrusted with said property. The dissent in part. It is true that Art. 429, Civil Code of the Philippines,
defense of property, whether complete or incomplete, to be available in provides that the owner or legal possessor of a thing may use such force as
prosecutions for murder or homicide must be coupled with an attack by may be reasonably necessary to repel or prevent an actual or threatened
the one getting the property on the person defending it. unlawful physical invasion or usurpation of his property. It seems to me,
however, that an attack on the person defending his property is an
In the case now before Us, there is absolutely no evidence that an attack indispensable element where an accused pleads self-defense but what is
was attempted, much less made upon the person of appellant. The mere basically defended is only property.
utterance "No, gademit proceed, go ahead" is not the unlawful aggression
which entitles appellant to the pela of self-defense. I agree with the Defense of property is not of such importance as the right to life and
majority opinion that the crime is homicide but without any privileged defense of property can only be invoked when it is coupled with some
mitigating circumstance. form of attack on the person of one entrusted with said property. The
defense of property, whether complete or incomplete, to be available in
Therefore, since the appellant is guilty beyond reasonable doubt of two (2) prosecutions for murder or homicide must be coupled with an attack by
homicides, mitigated by the two generic mitigating circumstances of the one getting the property on the person defending it.
voluntary surrender and obfuscation, without any aggravating
circumstance, maximum the sentence the appellant should have served

25
In the case now before Us, there is absolutely no evidence that an attack from the house of Exequiel Castillo, situated in the pueblo of Tanauan,
was attempted, much less made upon the person of appellant. The mere Province of Batangas, accompanied by several young people, she was
utterance "No, gademit proceed, go ahead" is not the unlawful aggression approached by Jose Laurel who suddenly kissed her and immediately
which entitles appellant to the pela of self-defense. I agree with the thereafter ran off in the direction of his house, pursued by the girl's
majority opinion that the crime is homicide but without any privileged companions, among whom was the master of the house above mentioned,
mitigating circumstance. Exequiel Castillo; but they did not overtake him.

Therefore, since the appellant is guilty beyond reasonable doubt of two (2) On the second night after the occurrence just related, that is, on the 28th,
homicides, mitigated by the two generic mitigating circumstances of while Exequiel Castillo and Jose Laurel, together with Domingo Panganiban
voluntary surrender and obfuscation, without any aggravating and several others of the defendants, were at an entertainment held on an
circumstance, maximum the sentence the appellant should have served upper floor of the parochial building of the said pueblo and attended by
was prision mayor plus the indemnification to each group of heirs of Davis many residents of the town, it is alleged that the said Castillo and Laurel
Fleischer and of Flamiano Rubia of the sum of Four Thousand (P4,000.00) were invited by Panganiban, the former through his brother, Roque
Pesos, without subsidiary imprisonment, but without any award for moral Castillo, and the latter, directly, to come out into the yard, which they did,
damages and attorney's fees. accompanied by Panganiban and the other defendants referred to. After
the exchange of a few words and explanations concerning the kiss given
Considering that appellant has been under detention for almost fourteen the girl Lat on the night of the 26th of that month, a quarrel arose between
(14) years now since August 22, 1968, he has served the penalty and the said Jose Laurel and Exequiel Castillo, in which Domingo Panganiban,
should be released. Vicente Garcia, and Conrado Laurel took part, and as a result of the quarrel
Exequiel Castillo was seriously wounded. He succeeded in reaching a drug
store near by where he received first aid treatment; Jose Laurel also
G.R. No. L-7037 March 15, 1912 received two slight wounds on the head.

THE UNITED STATES, plaintiff-appellee, Dr. Sixto Rojas, who began to render medical assistance to Exequiel Castillo
vs. early in the morning of the following day, stated that his examination of
JOSE LAUREL, ET AL., defendants-appellants. the latter's injuries disclosed a wound in the left side of the chest, on a
level with the fourth rib, from 3 to 4 centimeters in depth, reaching into
O'Brien and DeWitt for appellants. the lung; another wound in the back of the left arm and in the conduit
Attorney-General Villamor for appellee. through which the ulnar nerve passes, from 10 to 11 centimeters in length,
penetrating to the bone and injuring the nerves and arteries of the said
TORRES, J.: region, especially the ulnar nerve, which was served; a contusion on the
right temple, accompanied by ecchymosis and hemorrhage of the tissues
This appeal was raised by the four above-named defendants, from the of the eye; and, finally, another contusion in the back of the abdomen near
judgment of conviction, found on page 117 of the record, rendered by the the left cavity, which by reaction injured the stomach and the right cavity.
Honorable Mariano Cui. According to the opinion of the physician above named, the wound in the
left side of the breast was serious on account of its having fully penetrated
The facts in this case are as follows: On the night of December 26, 1909, the lungs and caused the patient to spit blood, as noticed the day after he
while the girl Concepcion Lat was walking along the street, on her way was wounded, and there must have been a hemmorhage of the lung, an

26
important vital vascular organ; by reason of this hemorrhage or general with regard to his (Laurel's) having kissed Concepcion Lat on the night of
infection the patient would have died, had it not been for the timely the 26th in the street and in the presence of the witness and other young
medical aid rendered him. The wound on the back of the left arm was also people; that the witness, Exequiel Castillo, therefore, left the parochial
of a serious nature, as the ulnar nerve was cut, with the result that the title building, accompanied by his brother Roque and Primitivo Gonzalez, and
and ring fingers of the patient's left hand have been rendered permanently met Sofronio Velasco, Gaudencio Garcia, and Alfonso Torres, at the street
useless. With respect to the contusion on the right temple, it could have door; that after he had waited there for half an hour, Jose laurel, Conrado
been serious, according to the kind of blows received, and the contusion Laurel, Vicente Garcia, Jose Garcia, and Domingo Panganiban, likewise
on the back of the abdomen was diagnosed as serious also, on account of came down out of the building and Jose Laurel approached him and
its having caused an injury as a result of which the wounded man immediately took him aside, away from the door of the building and the
complained of severe pains in the stomach and left spleen. The said others; that Laurel then said to him that, before making any explanations
physician stated that he had attended the patient fourteen consecutive relative to the said offense against the girl Concepcion Lat, he would ask
days; that the contusion on the abdomen was cured in four or five days, him whether it was true that he (the witness, Castillo) had in his possession
and that on the right temple in ten or twelve days, although this latter some letters addressed by Laurel to the said girl, to which the witness
injury was accompanied by a considerable ecchymosis which might not replied that as a gentleman he was not obliged to answer the question;
disappear for about three months, the time required for the absorption of that thereupon Jose Laurel suddenly struck him a blow in the left side of
the coagulated blood; that the stitches in the wound of the left arm were the breast with a knife, whereupon the witness, feeling that he was
taken out after twelve days, and when witness ceased to attend the wounded, struck in turn with the cane he was carrying at his assailant, who
patient, this wound was healing up and for its complete cure would require dodged and immediately started to run; thereupon witness received
eight or more days' time; and that the wound in the breast, for the reason another knife thrust in the left arm followed by a blow in the left side from
that it had already healed internally and the danger of infection had a fist and witness, upon turning, saw Vicente Garcia and Domingo
disappeared, was healing, although still more time would be required for Panganiban in the act of again assaulting him; just then he was struck a
its complete cure, the patient being able to continue the treatment blow with a cane on his right temple and, on turning, saw behind him
himself, which in fact he did. Conrado Laurel carrying a stick, and just at the moment Primitivo Gonzalez
and several policemen approached him calling of peace; his assailants then
In view of the strikingly contradictory evidence adduced by the left him and witness went to the neighboring drug store where he received
prosecution and by the defense, and in order to decide what were the true first aid treatment. Witness further testified that he had been courting the
facts of the case we shall proceed to recite the testimony of the party who girl Concepcion Lat for a month; that, because his sweetheart had been
was seriously wounded and of his witnesses, and afterwards, that of his kissed by Jose Laurel, he felt a little resentment against the latter, and that
alleged assailants and of their witnesses, in order to determine the nature since then he had no opportunity to speak with his assailant until the said
of the crime, the circumstances that concurred therein and, in turn, the night of the attack.
responsibility of the criminal or criminals.
Roque Castillo, a witness for the prosecution, testified that, at the request
Exequiel Castillo testified that while he, together with Primitivo Gonzalez, of Domingo Panganiban, he had suggested to his brother, Exequiel Castillo,
was in the hall of the parochial building of Tanauan, attending an that the latter should go down to the door of the ground floor of the
entertainment on the night of December 28, 1909, he was approached by parochial building, where Jose Laurel was waiting for him, so that the latter
his brother, Roque Castillo, who told him, on the part of Domingo might make explanations to him with regard to what had taken place on
Panganiban, that Jose Laurel desired to speak with him and was awaiting the night prior to the 26th of December; that Exequiel, who was in the hall
him on the ground floor of the said building, to give him an explanation beside Primitivo Gonzalez, immediately upon receiving the notice sent him

27
in Laurel's name, got up and went down with Gonzalez and the witness, placed themselves the nearest to the first two, Jose Laurel and Exequiel
though the latter remained at the foot of the stairs in conversation with Castillo; that at this juncture witness, who was about 6 or 7 meters away
Virginio de Villa, whom he found there; that, after a little while, witness from the two men last named, observed that Jose Laurel, who had his
saw Jose Laurel, Jose Garcia, Domingo Panganiban, Vicente Garcia, and hand in his pocket while he was talking with Exequiel, immediately drew
Conrado Laurel come down from the said building, and, on observing out a handkerchief and therewith struck Exequiel a blow on the breast;
something bulging from the back of the latter's waist he asked him what that the latter forthwith hit his assailant, Laurel, with a cane which he was
made that bulge, to which Laurel replied that it meant "peace;" witness carrying; that Laurel, upon receiving a blow, stepped back, while Exequiel
thereupon said to him that if he really desired "peace," as witness also did, pursued him and continued to strike him; that thereupon Vicente Garcia
he might deliver to the latter the revolver he was carrying, and to prove stabbed Exequiel, who had his back turned toward him and Conrado Laurel
that he would not make bad use of the weapon, Laurel might take the struck the said Exequiel a blow on the head with a cane; that when witness
cartridges out and deliver the revolver to witness. This he did, the witness approached the spot where the fight was going on, several policemen
received the revolver without the cartridges, and his fears thus allayed, the appeared there and called out for peace; and that he did not notice what
witness returned to the upper floor to the entertainment; but that, at the Jose Garcia Aquino and Alfonso Torres did.
end of about half an hour, he heard a hubbub among the people who said
that there was a quarrel, and witness, suspecting that his brother Exequiel Lucio Villa, a policeman, testified that on the hearing the commotion, he
had met with some treachery, ran down out of the house; on reaching the went to the scene of it and met Jose Laurel who was coming away, walking
ground floor he met Primitivo Gonzalez, who had blood stains on his arms; at an ordinary gait and carrying a bloody pocketknife in his hand; that
that Gonzalez then informed him that Exequiel was badly wounded; that witness therefore arrested him, took the weapon from him and conducted
he found his said brother in Arsenio Gonzalez' drug store; and that his him to the municipal building; and that the sergeant and another
brother was no longer able to speak but made known that he wanted to be policemen, the latter being the witness's companion, took charge of the
shriven. Witness added that on that same night he delivered the revolver other disturbers.
to his father, Sixto Castillo, who corroborated this statement.
The defendant, Jose Laurel, testified that early in the evening of the 28th
The other witness, Primitivo Gonzalez, corroborated the testimony given of December he went to the parochial building, in company with Diosdado
by the preceding witness, Roque Castillo, and testified that, while he was Siansance and several young people, among them his cousin Baltazara
that night attending the entertainment at the parochial building of Rocamora, for the purpose of attending an entertainment which was to be
Tanauan, in company with Exequiel Castillo, the latter received notice from held there; that, while sitting in the front row of chairs, for there were as
his (Castillo's) brother, through Domingo Panganiban, to the effect that yet but few people, and while the director of the college was delivering a
Jose Laurel desired to speak with him concerning what occurred on the discourse, he was approached by Domingo Panganiban who told him that
night of December 26; that thereupon Exequiel, the latter's brother, Roque Exequiel Castillo wished to speak with him, to which witness replied that
and the witness all went down out of the house, though Roque stopped on he should wait a while and Panganiban thereupon went away; that, a short
the main stairway while witness and Exequiel went on until they came to time afterwards, he was also approached by Alfredo Yatco who gave him a
the main door of the ground floor where they met Alfonso Torres and similar message, and soon afterwards Felipe Almeda came up and told him
Gaudencio Garcia; that, after a while, Jose Laurel, Conrado Laurel, Vicente that Exequiel Castillo was waiting for him on the ground floor of the house;
Garcia, Jose Garcia Aquino, and Domingo Panganiban came up; that when this being the third summons addressed to him, he arose and went down
Jose Laurel met Exequiel Castillo he caught the latter by the hand and the to ascertain what the said Exequiel wanted; that, when he stepped outside
two separated themselves from the rest and retired to a certain distance, of the street door, he saw several persons there, among them, Exequiel
although Vicente and Jose Garcia, Conrado Laurel, and Alfonso Torres Castillo; the latter, upon seeing witness, suggested that they separate from

28
the rest and talk in a place a short distance away; that thereupon Exequiel people who were there, Exequiel Castillo and Jose Laurel who were talking
asked witness why he kissed his, Exequiel's sweetheart, and on Laurel's apart from a group of persons among whom he recognized Roque Castillo,
replying that he had done so because she was very fickle and prodigal of Primitivo Gonzalez and Conrado Laurel; that soon after this, witness saw
her use of the word "yes" on all occasions, Exequiel said to him that he Exequiel Castillo strike Jose Laurel a blow with a cane and the latter
ought not to act that way and immediately struck him a blow on the head stagger and start to run, pursued by the former, the aggressor; that at this
with a cane or club, which assault made witness dizzy and caused him to juncture, Conrado Laurel approached Exequiel and, in turn, struck him
fall to the ground in a sitting posture; that, as witness feared that his from behind; and that the police presently intervened in the fight, and
aggressor would continue to assault him, he took hold of the pocketknife witness left the place where it occurred.
which he was carrying in his pocket and therewith defended himself; that
he did not know whether he wounded Exequiel with the said weapon, for, The defendant Domingo Panganiban testified that, while he was at the
when witness arose, he noticed that he, the latter, had a wound in the entertainment that night, he noticed that it threatened to rain, and
right parietal region and a contusion in the left; that witness was therefore left the house to get his horse, which he had left tied to a post
thereupon arrested by the policemen, Lucio Villa, and was unable to state near the door; that, on reaching the ground floor, the brothers Roque and
whether he dropped the pocketknife he carried or whether it was picked Exequiel Castillo, asked him to do them the favor to call Jose Laurel,
up by the said officer; that it took more than a week to cure his injuries; because they wished to talk to the latter, witness noticing that the said
that he had been courting the girl Concepcion Lat for a year, but that in brothers were then provided with canes; that he called Jose Laurel, but the
October, 1909, his courtship ended and Exequiel Castillo then began to latter said that he did not wish to go down, because he was listening to the
court her; and that, as witness believed that the said girl would not marry discourse which was then being delivered, and witness therefore went
him, nor Exequiel, he kissed her in the street, on the night of December 26, down to report the answer to the said brothers; that while he was at the
1909, and immediately thereafter ran toward his house. door of the parochial building waiting for the drizzle to cease, Jose Laurel
and Felipe Almeda came up to where he was, and just then Exequiel
Baltazara Rocamora stated that, while she was with Jose Laurel on the Castillo approached the former, Laurel, and they both drew aside, about 2
night of December 28, 1909, attending an entertainment in the parochial brazas away, to talk; that soon afterwards, witness saw Exequiel Castillo
building of Tanauan, the latter was successively called by Domingo deal Jose Laurel two blows in succession and the latter stagger and start to
Panganiban, Alfredo Yatco, and Felipe Almeda, the last named saying: "Go run, pursued by his assailant; the latter was met by several persons who
along, old fellow; you are friends now." Casimiro Tapia testified that, on crowded about in an aimless manner, among whom witness recognized
the morning following the alleged crime, he visited Jose Laurel in the jail, Roque Castillo and Conrado Laurel; and that he did not see Primitivo
and found him suffering from the bruises or contusions; that to cure them, Gonzalez nor Gaudencio Garcia at the place where the fight occurred,
he gave him one application of tincture of arnica to apply to his injuries, although he remained where he was until a policeman was called.
which were not serious.
Conrado Laurel, a cousin of Jose Laurel, testified that, on the night of
Benito Valencia also testified that, while the entertainment, he saw December 28, 1909, he was in the parochial building for the purpose of
Domingo Panganiban approach Jose Laurel and tell him that Exequiel attending the entertainment; that he was then carrying a revolver, which
Castillo was waiting for him downstairs to talk to him; that Laurel refused had neither cartridges nor firing pin, for the purpose of returning it to its
to go, as he wished to be present at the entertainment, and that owner, who was a Constabulary telegraph operator on duty in the pueblo
Panganiban then went away; that, soon afterwards, witness also went of Tanauan; that the latter, having been informed by a gunsmith that the
down, intending to return home, and, when he had been on the ground said revolver could not be fixed, requested witness, when they met each
floor of the parochial building for fifteen minutes, he saw, among the many other in the cockpit the previous afternoon, to return the weapon to him

29
during the entertainment; that, on leaving the said building to retire to his In view, therefore, of these manifest contradictions, and in order to
house and change his clothes, he met Roque Castillo, his cousin and determine the liability of the defendant, Jose Laurel, who, it is proved,
confidential friend, on the ground floor of the parochial building or inflicted the serious wound on Exequiel Castillo, it is necessary to decide
convent and the latter, seeing that witness was carrying a revolver, insisted which of the two was the assailant.
on borrowing it, notwithstanding that witness told him that it was
unserviceable; that, after he had changed his clothes, he left his house to Taking for granted that Jose Laurel did actually kiss Concepcion Lat in the
return to the parochial building, and near the main door of said building he street and in the presence of Exequiel Castillo, the girl's suitor, and of
found Exequiel Castillo and Jose Laurel talking by themselves; that a few others who were accompanying her, the first query that naturally arises in
moment afterwards, he saw Exequiel strike Jose two blows with a cane the examination of the evidence and the circumstances connected with
that nearly caused him to fall at full length on the ground, and that Jose the occurrence, is: Who provoked the encounter between Laurel and
immediately got up and started to run, pursued by his assailant, Exequiel; Castillo, and the interview between the same, and who invited the other,
that witness, on seeing this, gave the latter in turn a blow on the head with on the night of December 28, 1909, to come down from the parochial
a cane, to stop him from pursuing Jose, witness fearing that the pursuer, building of Tanauan, to the lower floor and outside the entrance of the
should he overtake the pursued, would kill him; that, after witness struck same? Even on this concrete point the evidence is contradictory, for, while
Exequiel Castillo with the cane, the police intervened and arrested them; the witnesses of Exequiel Castillo swore that the latter was invited by Jose
and that, among those arrested, he saw Panganiban and Vicente Garcia, Laurel, those of the latter testified, in turn, that Laurel was invited three
and, at the place of the disturbance, Roque Castillo and Primitivo Gonzalez. consecutive times by three different messengers in the name and on the
part of the said Castillo.
Vicente Garcia denied having taken part in the fight. He testified that he
also was attending the entertainment and, feeling warm, went down out In the presence of this marked contradiction, and being compelled to
of the parochial building; that, upon so doing, he saw Domingo Panganiban inquire into the truth of the matter, we are forced to think that the person
and Jose Laurel, but was not present at the fight, and only observed, on who would consider himself aggrieved at the kiss given the girl Concepcion
leaving the building, that there was a commotion; then he heard a Lat, in the street and in the presence of several witnesses, would
policeman had arrested Jose Laurel. undoubtedly be Exequiel Castillo, the suitor of the girl, and it would appear
to be a reasonable conclusion that he himself, highly offended at the
Well-written briefs were filed in first instance, both by the prosecution and boldness of Jose Laurel, was the person who wished to demand
by the defense; but, notwithstanding the large number of persons who explanation of the offense.
must have been eyewitnesses to what occurred, it is certain that the
prosecution was only able to present the witness, Primitivo Gonzalez, a Upon this premise, and having weighed and considered as a whole the
relative of Exequiel Castillo, to testify as to how and by whom the assault testimony, circumstantial evidence, and other merits of the present case,
was begun. the conviction is acquired, by the force of probability, that the invitation,
given through the medium of several individuals, came from the man who
Each one of the combatants, Exequiel Castillo and Jose Laurel accused the was offended by the incident of the kiss, and that it was the perpetrator of
other of having commenced the assault. Castillo testified that Laurel, after the offense who was invited to come down from the parochial building to
the exchange of few words between them, suddenly and without warning the ground floor thereof to make explanations regarding the insult to the
stabbed him with a knife, while Laurel swore that, after a short girl Lat, the real suitor of whom was at the time the said Exequiel Castillo.
conversation Castillo struck him two blows with a cane, on which account, All this is not mere conjecture; it is logically derived from the above related
in order to defend himself, he seized a pocketknife he carried in his pocket. facts.

30
would not have been slow or indisposed to go down, as was the case with
Both Jose and Exequiel were attending the entertainment that night in the Jose Laurel.
upper story of the parochial building. Exequiel was the first who went
below, with his cousin, Primitivo Gonzalez, knowing the Laurel remained in If, as is true, the latter was the one who insulted the girl Concepcion Lat —
the hall above, and he it was who waited for nearly half an hour on the an insult which must deeply have affected the mind of Exequiel Castillo,
ground floor of the said building for the said Jose Laurel to come down. the girl's suitor at the time — it is not possible to conceive, as claimed by
The latter was notified three times, and successively, in the name and on the prosecution, how and why it should be Jose Laurel who should seek
the part of Exequiel Castillo, first by Domingo Panganiban, then by Alfredo explanations from Exequiel Castillo. It was natural and much more likely
Yatco and finally by Felipe Almeda--three summonses which were that it should have been the latter who had an interest in demanding
necessary before Jose Laurel could be induced, after the lapse of nearly explanations from the man who insulted his sweetheart. In view of the
half an hour, to come down. Meanwhile, for that space of time, Exequiel behavior of the men a few moments before the occurrence, we are of the
Castillo was awaiting him, undoubtedly for the purpose of demanding opinion that Castillo was the first to go down to the entrance door of the
explanations concerning the offensive act committed against his parochial building, knowing that Jose Laurel was in the hall, and,
sweetheart. The natural course and the rigorous logic of the facts can not notwithstanding the state of his mind, he had the patience to wait for the
be arbitrarily be rejected, unless it be shown that other entirely anomalous said Laurel who, it appears, was very reluctant to go down and it was
facts occurred. necessary to call him three times before he finally did so, at the end of half
an hour.
If, in the natural order of things, the person who was deeply offended by
the insult was the one who believed he had a right to demand explanations After considering these occurrences which took place before the crime, the
of the perpetrator of that insult, it is quite probable that the aggrieved query of course arises as to which of the two was the first to assault the
party was the one who, through the instrumentality of several persons, other, for each lays the blame upon his opponent for the commencement
invited the insulter to come down from the upper story of the parochial of the assault. Exequiel Castillo testified that after he had replied to Jose
building, where he was, and make the explanations which he believed he Laurel that he, the witness, was not obliged to say whether he had in his
had a right to exact; and if this be so, Exequiel Castillo, seriously affected possession several letters addressed by laurel to the girl Concepcion Lat,
and offended by the insult to his sweetheart, Concepcion Lat, must be held Laurel immediately stabbed him in the breast with a knife; while Jose
to be the one who brought about the encounter gave the invitation and Laurel swore that, upon his answering the question put to him by Castillo
provoked the occurrence, as shown by his conduct in immediately going as to why the witness had kissed his sweetheart, saying that it was because
down to the entrance door of the said building and in resignedly waiting, she was very fickle and prodigal of the word "yes" on all occasions,
for half an hour, for Jose Laurel to come down. Exequiel said to him in reply that he ought not to act in that manner, and
immediately struck him a couple of blows on the head with a club,
Moreover, if the latter had provoked the encounter or interview had on wherefore, in order to defend himself, he drew the knife he was carrying in
the ground floor of the building, it is not understood why he delayed in his pocket.
going down, nor why it became necessary to call him three times, in such
manner that Exequiel Castillo had to wait for him below for half an hour, Were the statements made by Exequiel Castillo satisfactorily proven at the
when it is natural and logical to suppose that the provoking party or the trial, it is unquestionable that Jose Laurel would be liable as the author of
one interested in receiving explanations would be precisely the one who the punishable act under prosecution; but, in view of the antecedents
would have hastened to be in waiting at the place of the appointment; he aforerelated, the conclusions reached from the evidence, and the other
merits of the case, the conclusion is certain that the assault was

31
commenced by Exequiel Castillo, who struck Jose Laurel two blows with a He who acts in defense of the person or rights of his spouse, ascendants,
cane, slightly injuring him in two places on the head, and the assaulted descendants, or legitimate, natural, or adopted brothers or sisters, or of
man, in self-defense, wounded his assailant with a pocketknife; therefore, his relatives by affinity in the same degrees and those by consanguinity
Jose Laurel committed no crime and is exempt from all responsibility, as within the fourth civil degree, provided the first and second circumstances
the infliction of the wounds attended by the three requisites specified in mentioned in the foregoing number are attendant, and provided that in
paragraph 4, article 8 of the Penal Code. case the party attacked first gave provocation, the defender took no part
therein.
From the evidence, then, produced at the trial, it is concluded that it was
Exequiel Castillo who, through the mediation of several others, invited Conrado Laurel and Vicente Garcia, first cousins of Jose Laurel, as shown in
Laurel to come down from the upper story of the parochial building, and the trial record to have been proven without contradiction whatsoever, did
that it was he, therefore, who provoked the affray aforementioned, and, not provoke the trouble, nor did they take any part in the invitation
also, it was he who unlawfully assaulted Jose Laurel, by striking the latter extended to Jose Laurel in the name of and for Exequiel Castillo; in
two blows with a cane inasmuch as it is not likely that after having received assisting in the fight between Castillo and Laurel, they acted in defense of
a dangerous wound in the left breast, he would have been able to strike their cousin, Jose Laurel, when they saw that the latter was assaulted,
his alleged assailant two successive blows and much less pursue him. It is twice struck and even pursued by the assailant, Castillo; consequently
very probable that he received the said wounds after he had assaulted Jose Conrado Laurel and Vicente Garcia have not transgressed the law and they
Laurel with the cane, and Laurel, on his part, in defending himself from the are exempt from all responsibility, for all the requisites of paragraph 4 of
assault, employed rational means by using the knife that he carried in his the aforecited article attended the acts performed by them, as there was
pocket. illegal aggression on the part of the wounded man, Exequiel Castillo,
reasonable necessity of the means employed to prevent or repel the said
For all the foregoing reasons, Jose Laurel must be acquitted and held to be aggression on the part of the aforementioned Conrado Laurel and Vicente
exempt from responsibility on the ground of self-defense. The case falls Garcia, who acted in defense of their cousin, Jose Laurel, illegally assaulted
within paragraph 4 of article 8 of the Penal Code, inasmuch as the by Exequiel Castillo, neither of the said codefendants having provoked the
defensive act executed by him was attended by the three requisites of alleged crime.
illegal aggression on the part of Exequiel Castillo, there being a lack of
sufficient provocation on the part of Laurel, who, as we have said, did not With regard to Domingo Panganiban, the only act of which he was accused
provoke the occurrence complained of, nor did he direct that Exequiel by the wounded man, Exequiel Castillo, was that he struck the latter a
Castillo be invited to come down from the parochial building and arrange blow on the left side with his fist, while Castillo was pursuing Laurel.
the interview in which Castillo alone was interested, and, finally, because
Laurel, in defending himself with a pocketknife against the assault made Domingo Panganiban denied that he took part in the quarrel and stated
upon him with a cane, which may also be a deadly weapon, employed that he kept at a distance from the combatants, until he was arrested by a
reasonable means to prevent or repel the same. policeman. His testimony appears to be corroborated by that of Primitivo
Gonzalez, a witness for the prosecution and relative of Exequiel Castillo,
Under the foregoing reasoning, the other accused, Conrado Laurel and for Gonzalez positively declared that Panganiban was beside him during
Vicente Garcia, who likewise, were convicted as principals of the crime the occurrence of the fight and when the others surrounded the said
under prosecution, are comprised within the provisions of paragraph 5 of Exequiel Castillo; it is, therefore, neither probable nor possible that
the said article 8 of the Penal Code, which are as follows: Panganiban engaged in the affray, and so he contracted no responsibility
whatever.

32
indemnify the heirs of the deceased in the sum of P500 and to pay the
Exequiel Castillo's wounds were very serious, but, in view of the fact that costs of the action.
conclusive proof was adduced at the trial, of the attendance of the
requisites prescribed in Nos. 4 and 5 of article 8 of the Penal Code, in favor On March 21, 1926 the appellant invited several persons to a picnic in a
of those who inflicted the said wounds, it is proper to apply to this case the fishery of his property in the barrio of Misua, municipality of Infanta,
provision contained in the next to the last paragraph of rule 51 of the Province of Tayabas. They spent the day at said fishery and in the
provisional law for the application of the said code. afternoon returned in two boats, one steered by the appellant and the
other by an old woman named Anastasia Penaojas. Nine persons were in
With respect to the classification of the crime we believe that there is no the boat steered by the appellant, the great majority of whom were
need for us to concern ourselves therewith in this decision, in view of the women and among them the appellant's wife and son and a nursing child,
findings of fact and of law made by the court below upon the question of son of a married couple who had also gone in this boat. The deceased Juan
the liability of the defendants. Loquenario was another passenger in this boat. Upon reaching a place of
great depth the deceased rocked the boat which started it to take water,
By reason, therefore, of all the foregoing, we are of opinion that, with a and the appellant, fearing the boat might capsize, asked the deceased not
reversal of the judgment appealed from, we should acquit, as we do to do it. As the deceased paid no attention to this warning and continued
hereby, the defendants Jose Laurel, Vicente Garcia, Conrado Laurel, and rocking the boat, the appellant struck him on the forehead with an oar.
Domingo Panganiban. They have committed no crime, and we exempt The deceased fell into the water and was submerged, but a little while
them from all responsibility. The costs of both instances shall be de oficio, after appeared on the surface having grasped the side of the boat, saying
and the bond given in behalf of the defendants shall immediately be that he was going to capzise it and started to move it with this end in view,
canceled. seeing which the women began to cry, whereupon the appellant struck
him on the neck with the same oar, which submerged the deceased again.
Johnson, Carson, Moreland and Trent, JJ., concur. With the movement that the appellant made in giving him the second
blow, the boat upset and then the appellant proceeded to save his
passengers. In the meantime the aged Anastasia Penaojas, who steered
G.R. No. L-28451 August 1, 1928 the other boat, and who at that time was about 200 or 300 meters away,
having heard the cries of the wrecked persons, quickened its speed,
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, repaired to and arrived in time to pick up the passengers who are clinging
vs. to the side of the capsized boat, taking them later to the river bank. The
NARCISO CABUNGCAL, defendant-appellant. appellant, after having thus saved his passengers, proceeded to search for
the deceased but was unable to find him and his body was recovered later.
Esteban del Rosario for appellant.
Attorney-General Jaranilla for appellee. The Attorney-General is of the opinion that the mitigating circumstances
described in the first, third, fourth and seventh paragraphs of article 9 of
AVANCEÑA, C.J.: the Penal Code are present without any aggravating circumstance, and the
penalty to be imposed on the appellant should be one or two degrees less
The appellant, Narciso Cabungcal, was sentenced by the Court of First than that prescribed by the law.
Instance of Tayabas for the crime of homicide to fourteen years, eight
months and one day reclusion temporal, with the accessories of the law, to

33
In view of the facts stated, we are of the opinion that the appellant is G.R. No. L-41674 March 30, 1935
completely exempt from all criminal liability.
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
Due to the conditions of the river at the point where the deceased started vs.
to rock the boat, if it had capsized the passengers would have run the risk REMEDIOS DE LA CRUZ, defendant-appellant.
of losing their lives, the majority of whom were women, especially the
nursing child. The conduct of the deceased in rocking the boat until the Silvino Lopez de Jesus for appellant.
point of it having taken water and his insistence on this action, in spite of Office of the Solicitor-General Hilado for appellee.
the appellant's warning, gave rise to the belief on the part of the plaintiff
that it would capsize if he did not separate the deceased from the boat in VICKERS, J.:
such a manner as to give him no time to accomplish his purpose. It was
necessary to disable him momentarily. For this purpose the blow given him This is an appeal from a decision of the Court of First Instance of Nueva
by the appellant on the forehead with an oar was the least that could Ecija, finding the defendant guilty of homicide and sentencing her to suffer
reasonably have been done. And this consideration militates with greater not more than fourteen years, eight months and one day of reclusion
weight with respect to the second blow given in his neck with the same temporal and not less than eight years and one day of prision mayor, to
oar, because, then the danger was greater that the boat might upset, indemnify the heirs of the deceased Francisco Rivera in the sum of P1,000,
especially as the deceased had expressed his intention to upset it. and to pay the costs.

In view of all the circumstances of the case, in doing what the appellant did Appellant's attorney makes the following assignments of error:
was in lawful defense of the lives of the passengers of the boat, two of
whom were his wife and child. The recourse of taking the boat to the shore I. El Juzgado a quo, erro al dar absoluto credito a las pruebas de la
was not adequate in those circumstances, because that would require acusacion, las que son insuficientes para apoyar una declaracion de
sometime, whereas the deceased might in an instant cause the boat to conviccion.
capsize without giving time to arrive at the shore.
II. El Juzgado a quo erro al declarar que los celos fueron el motivo que
The appellant having acted in defense of his wife and child and the other impulso a la acusada al agredir al occiso Francisco Rivera.
passengers in the boat and the means employed having been reasonably
necessary in this defense, while it was at the cost of the life of the III. El Juzgado a quo al declarar increible el testimonio de la acusada en
deceased, he is completely exempt from criminal liability. esta causa.

Reversing the judgment appealed from, the appellant is acquitted, with the IV. Y el Juzgado a quo erro al no absolver a la acusada.
costs de oficio. So ordered.
It appears from the evidence that on the evening of February 18, 1934,
Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., Francisco Ramos and his wife, Brigida Vistada; his sister, Baltazara Ramos;
concur. and a woman named Consuelo or Natividad Santoyo called at the house of
the defendant and asked her to go with them to a wake in honor of one
Sion, who had died in the house of Maria Inguit. About nine o'clock the
defendant and her friends started home. They were followed about five

34
minutes later, according to Enrique Bautista, by the deceased Francisco nothing more against the strength of the man, she got a knife from her
Rivera, who had been playing cards in the house where the wake was held. pocket, opened it, and stabbed him in defense of her honor. She further
He was accompanied by Enrique Bautista. Rivera and Bautista overtook testified that the man who attacked her did not say anything; that she
defendant's party. When they reached a narrow part of the path, Rivera asked him who he was but he did not answer; that when she was assaulted
went ahead of Bautista. At that time the members of the defendant's party she cried for help, saying "Madre mia; Dios mio"; that when she was
were walking in single file. Baltazara Ramos was in the lead and the seized, she was about two brazas behind her nearest companion; that
defendant was the hindmost. She was about two brazas from the person when she was face to face with her assailant during the struggle she could
immediately ahead of her. Francisco Ramos, the only one of defendant's scarcely recognize his face in the darkness and could not be sure that it
companions that was called to testify, heard someone cry out "Aruy, Dios was Francisco Rivera.
mio". He went back and found that Francisco Rivera had been stabbed
under the right breast. The wounded man was taken to the hospital, where Her testimony as to what occurred is as follows:
he died the next afternoon.
P. ¿Y que paso siendo usted la ultima de entre sus compañeros? — R.
Francisco Ramos testified that it took him about two minutes to go back to Despues de pasar nosotros en una bifurcacion de los caminos cuando
the place where Francisco Rivera was. He found and that Enrique Bautista llegabamos en una parte estrecha el occiso subitamente me abrazo por
was with the wounded man, and the defendant had started back towards detras cogiendome los pechos y basandome.
the house of mourning. He overtook her. She had a knife in her hand.
When they reached the house of Maria Inguit, Remedios de la Cruz stuck P. ¿Y entonces que hizo usted cuando usted sintio ese abrazo y beso? — R.
the knife into a table and said that she stabbed Francisco Rivera because todavia me agarro en mi parte genital y en eso yo trataba de desasirme de
he embraced her. el; el me siguio abrazando cogiendome de los pechos y basandome, y yo a
mi vez seguia tratando de desasirme de el insistentemente.
The case for the prosecution rests upon the testimony of Enrique Bautista.
According to him the defendant waited on the right side of the path near P. ¿Y que sucedio? — R. Cuando yo trataba de desasirma de el, el me siguio
some guava trees and stabbed Francisco Rivera with a knife in her right abrazando y yo a mi vez seguia tratandome de desassirme de el y el llego a
hand when he arrived in front of her; that the injured man cried "Aruy, agarrarme en la parte genital y trato de lanzarme.
Dios mio", while the defendant turned around and returned to the house
of Maria Inguit, saying "Icao ay malaon na" (hacia tiempo ya). He further P. ¿Y que hizo usted cuando le trataba de lanzarle a usted el occiso? — R.
testified that the defendant stabbed the deceased before either of them Yo procuraba desasirme de el y cuando me quede debilitada y ya no podia
had said anything; that the distance between him and the deceased was hacer nada contra la fuerza de el yo saque de mo bolsillo un cortaplumas.
about one foot; that he did not see any of the companions of the
defendant after they reached the path and had to walk one behind the P. ¿Y que hizo usted del cortaplumas? — R. Lo abri porque cuando ya no
other. podia hacer nada y estaba y a debil yo hice lo que debia hacer en defensa
de mi pudor, le apuñale.
The defendant on the other hand testified that after they had passed a
fork in the trail and reached a narrow part a man suddenly threw his arms She further testified that she was engaged in selling fruit, and that the
around her from behind, caught hold of her breasts and kissed her, and fanknife in question was in a pocket of the overcoat she was wearing that
seized her in her private parts; that she tried to free herself, but he held day; that she went off with her friends without having an opportunity of
her and tried to throw her down; that when she felt weak and could do changing her clothes.

35
opinion that she was justified in making use of the pocket-knife in repelling
We cannot believe the testimony of Enrique Bautista, because Francisco what she believed to be an attack upon her honor, since she had no other
Ramos, one of the witnesses for the prosecution, testified that it was a means of defending herself.
dark night, and Bautista himself said that he could scarcely see anyone in
the darkness ("Apenas se podia ver a alguien en esa obscuridad."); that he In the case of the United States vs. Ah Chong (15 Phil., 488), this court held
did not see any of the companions of the defendant. that a person is not criminally responsible when, by reason of a mistake of
facts, he does an act for which he would be exempt if the facts were as he
It appears from the evidence that the deceased had been making love to supposed them to be, but would constitute murder if he had known the
the defendant, and also to another girl named Felicisima Sincaban; but the true state of facts at the time, provided that the ignorance or mistake of
finding of the trial judge that Francisco Rivera and the defendant were fact was not due to negligence or bad faith.
engaged, that she was madly in love with him and was extremely jealous of
Felicisima Sincaban is not sustained by the evidence of record. The appellant claims to have cried for help, but so far as the record shows
her cries were not heard by any of her companions. Whether she did in
The appellant stabbed the deceased only once, although she retained fact cry for help, as claimed by her, or failed to do so because of the
possession of the knife, and undoubtedly could have inflicted other suddenness with which the deceased grabbed her and the fright which it
wounds on him if she had desired. In other words she desisted as soon as naturally caused, taking into consideration the circumstances of the case,
he released her. we still think she is exempt from criminal liability. In the case of the United
States vs. Santa Ana and Ramos (22 Phil., 249), this court held that a
The evidence shows that an officer of the Constabulary went to see the woman in defense of her honor is justified in inflicting wounds or her
injured man about eleven o'clock that night in the hospital, but it does not assailant with a bolo which she happens to be carrying, even though her
appear that Rivera told him anything about the circumstances under which cry for assistance might have been heard by people near by.
he had been stabbed.
For the foregoing reasons, the decision appealed from is reversed, and the
The appellant is an illiterate barrio girl, unable to write her name, and appellant is acquitted, with the costs de oficio.
scarcely eighteen years old. We do not believe her story is a fabrication. In
this connection it is to be noted that almost immediately after the incident Avanceña, C.J., Malcolm, Abad Santos, Imperial, Butte, and Diaz, JJ.,
in question took place, the appellant said she stabbed Francisco Rivera concur.
because he embraced her. It is not improbable that she was reluctant to
relate in the presence of all the people in the house of Maria Inguit the
details of what had occurred. Separate Opinions

We are convinced from a study of the record that the deceased did in fact HULL, J., dissenting:
grab hold of the defendant on the night in question, and whether he
intended to rape her or not, taking into consideration that it was a dark My colleagues possibly through chivalry and compassion have given much
night and that the deceased grabbed her from behind without warning and greater credence to the tale of the defendant than it justifies. I am
without making himself known and refused to say who he was, and in the convinced that the trial judge, who heard her testify, more correctly
struggle that followed touched her private parts, and the fact that she was appreciated the facts of this case.
unable to free herself by means of her strength alone, we are of the

36
G.R. No. L-26750 August 18, 1972 appealed decision was rendered by the trial court, the ownership of said
revolver was transferred to him by reason of which he was issued by the
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Philippine Constabulary Special Permit No. 369246 authorizing him to
vs. possess the said revolver while he is in the active service (AFP), attaching
JOSEEN COMIENDA Y NAVARRO, defendant-appellant. the said special permit as Annex "A" to his petition (pp. 74-75, 76, Vol. II,
rec.), and that his motion to withdraw the said revolver was denied by the
Office of the Solicitor General for plaintiff-appellee. trial court due to the pendency of this case before the Supreme Court
(Annex "A", p. 78, Vol. II, rec.). Said petition was deemed submitted for
Aladin B. Bermudez for defendant-appellant. resolution on March 18, 1970 after the Solicitor General failed to comment
thereon within the period allowed him (pp. 79, 80, 82, Vol. II, rec.).

MAKASIAR, J.:p Arraigned on the following information for murder:

The accused Jose Encomienda y Navarro appealed on September 22, 1966 That on or about the 30th day of May, 1965, in the munipality of Cuyapo,
from the decision dated September 12, 1966 of the Court of First Instance province of Nueva Ecija, Republic of Philippines, and within the jurisdiction
of Nueva Ecija [Branch IV Guimba] (p. 97, Vol. I, rec.) sentencing him for of this Honorable Court the above-named accused conspiring together and
murder aggravated by recidivism but mitigated by voluntary surrender, to mutually aiding one another, armed with a bolo and blunt instrument, with
life imprisonment or reclusion perpetua, to indemnify the heirs of the intent to kill and with treachery and evident premeditation, did then and
deceased Severino Cabaral in the sum of P6,000.00, to suffer the there willfully, unlawfully and feloniously attack and hacked one Severino
accessories provided for by law, and to pay the costs (pp. 84-96, Vol. 1, Cabaral, inflicting upon him multiple wounds which caused his
rec.). instantaneous death.

The record of the case was received on October 25, 1966 by the Clerk of That the accused Jose Encomienda y Navarro is a recidivist having been
Court of the Supreme Court (p. 1, Vol. 11, rec.) from the Clerk of Court of convicted of the crime of Murder on April 30, 1958, in Criminal Case No.
the Court of Appeals, who received the same on October 20, 1966, without 4382 by the Court of First Instance of Nueva Ecija. (p. 47, Vol. I, rec.).
the transcript of stenographic notes, which transcript was submitted to the
Supreme Court on November 11, 1966 (p. 1, t.s.n., Vol. III), from the accused appellant who waived the presence of his counsel at said
deputy clerk of the trial court (p. 2, Vol. II, rec.). arraignment (p. 53, Vol. I, rec.), pleaded not guilty on June 2, 1966 (p. 54,
Vol. I, rec.).
After the briefs of appellant and appellee were filed respectively on
January 18, 1967 (pp 26-48, Vol. II, rec.) and July 2, 1967 (p. 67, Vol. II, The evidence for the prosecution consists of the testimonies of Cuyapo
rec.), the case was submitted for decision on August 14, 1967 (p. 73, Vol. ll health officer Pio Alberto, policeman Esmenino Delo and police inspector
rec.). Casimiro Aguinaldo.

On January 14, 1970, one AFP T/Sgt Venancio B. Bañaga, through counsel, Patrolman Esmenino Delo declared that about 4 o'clock in the afternoon of
filed a petition for an order directing the clerk of court of Branch IV of the May 30, 1965, he was with policeman Federico Olog at police outpost No.
Court of First Instance of Nueva Ecija to deliver to him the .32 caliber 2 in Cuyapo, Nueva Ecija, when one Franklin Ancheta reported that
revolver with serial No. 154646, Exhibit "E", alleging that after the Severino Cabaral was wounded in the yard of the accused Jose

37
Encomienda. He proceeded to the defendant's yard where he saw (pp. 11-12, t.s.n.). About 5:30 in the afternoon of that same day, May 30,
Severino mortally wounded in a kneeling position about two or three 1965, they returned to the municipal building where they saw police
meters in front of the stairs of the house of the accused and could not inspector Casimiro Aguinaldo interrogating the accused. According to
raise his head. Severino was unconscious but still breathing (pp. 13-14, police inspector Aguinaldo (p 13, t.s.n.), the accused went to the municipal
t.s.n.), On his query, the wounded Severino told him in the presence of building alone at about 4:55 p.m. of May 30, 1965, surrendering a bolo and
policemen Eufemio Delo and Mateo Castillo, that the accused Jose a .32 caliber revolver (Exhs. "D" & "E") together wit two live bullets (Exhs.
Encomienda stabbed him (pp. 9-10, t.s.n.), which statement he wrote "E-I" & "E-2") and four empty shells contained in an envelope. The bolo
down in Ilocano on a piece of ruled paper (Exhibit "C", p. 4, Vol. II, rec.), on (Exh. "D") is about 13 inches long with a wooden handle about 18
which the deceased affixed his right thumbmark and duly signed by centimeters long. He placed the bolo and the revolver in seperate
patrolmen Mateo Castillo and Eufemio Delo as witnesses (p. 11, t.s.n.). wrappers (Exhs. "D-1" & "E-3", pp. 15-17, 19 t.s.n.). After entrusting the
Said alleged ante mortem statement of the victim, Exhibit "C", was accused to the guard, he and policeman Esmenino Delo went to the scene
translated into English by police inspector Casimiro Aguinaldo (Exh "C-1", of the incident, saw blood stains on the stairs of the house of the accused
pp. 14 & 19, t.s.n.). and a box of water mixed with blood. Thereafter, they repaired to the
clinic of Dr. Garcia where they saw the victim about 6:30 that evening and
Exhibit "C-1" shows that the same was taken down at 4:45 P.M. of May 30, stayed there for about five minutes, after which they returned to the
1965 and contains the following conversation between partrolman municipal building (pp. 16-17, t.s.n.). When he asked the accused whether
Esmenino Delo and the victim: he was willing to give any statement, the accused replied in the negative
and stressed that he would wait for his lawyer (pp. 17, 19, t.s.n.). He
Q — Who boloed you? translated into English the alleged dying declaration, Exhibit "C", of the
victim (Exh. "C-1", p. 15, Vol. I, rec.; p. 19, t.s.n.). When he asked the
A — Jose Encomienda. accused why he boloed the victim, the accused replied that he would not
talk and he would await for his lawyer. He did not examine the hands of
Q — Is this true? the accused for powder burns as he did not know the procedure therefor.
Neither did he request the Philippine Constabulary to conduct such
A — Yes. examination of the victim for powder burns. He did not know who fired the
revolver. The victim bore no gunshot wounds. The accused did not tell him
Q — You thumbmark. that the victim fired at him. But, the victim's son told him that the revolver
was licensed in the name of the victim (pp 19-20, t.s.n.).
A — Yes. (p. 5, Vol. I, rec.).
Dr. Pio Alberto, the Cuyapo health officer, recounted that about 6: 00 P.M.
Assisted by policemen Mateo Castillo, Eufemio Delo and Federico Olog, of May 30, 1965, he examined the victim in the clinic of Dr. Potenciano
patrolman Esmenino Delo brought the victim to the private clinic of Dr. Garcia, executed the medical certificate Exhibit "A" (p. 2, Vol. I, rec.), and
Potenciano Garcia, after which he looked for the accused in the premises issued the death certificate showing that the victim was born in 1898 and
of the scene of the incident. Failing to locate the accused thereat, was 67 years old when he died on May 30, 1965 (Exh. "B", p. 3, Vol. I, rec.).
patrolman Esmenino Delo, together with lieutenant Gamboa, proceeded
to the municipal building to report the incident after which they conducted The medical certificate, which states that the victim died about 10 o'clock
an investigation in the premises of the incident, where they found blood in the evening of May 30, 1965 from shock and hemorrhage, describes the
stains in the yard and in front of the stairway of the house of the accused injuries sustained by the victim Severino Cabaral, thus:

38
state of shock at the time he examined him; that he left the victim at about
1. — A clean cut horizontal wound about 1 inch above both eyebrows 8:30 that evening of May 30, 1965 sleeping in Dr. Garcia's clinic; and that
extending from the outer tip of the left to the outer tip of the right the next day, he saw the victim already dead due to shock and hemorrhage
eyebrow; cutting the frontal bone and exposing the brain tissue. (pp. 6-7, t.s.n.).
Fragments of the frontal bone were extracted during the operation.
Appellant narrated that since 1947 he was a tenant of hacienda Doña Nena
2. — A clean cut almost horizontal wound about 2 inches long from in Cuyapo, Nueva Ecija; that the victim Severino Cabaral was the hacienda
inwards downwards and outwards at the latero-posterior aspect of the left overseer (pp. 22, 27, t.s.n.); that the land he was working was recorded in
wrist exposing the ligaments which were found to be intact. the name of his late father, who died in 1963 (p. 28, t.s.n.); that about one
week before May 30, 1965, the victim went to his house and invited him to
3. — An oblique clean cut wound about 1 ½, inch long on the postero- go to his (victim's) house telling him that he could no longer work on the
medial aspect of right forearm about 3 inches above the wrist joint from land for the land is not in his name; that he did not go with the victim to
outwards downwards and inwards. the latter's house then; that he was not mad when the victim told him for
the first time that he can no longer work on the land; that the second time
4. — Swelling and ecchymosis about 2-½ inches by 3-½ inches on lower the victim went to his house was on a Friday or Saturday, but only his little
angle of right scapula. child was home then as he was out and his wife was in the market; that the
third time the victim went to his house was about 4:30 in the afternoon of
5. — Swelling and ecchymosis about 2-½ inches by 3-½ inches just above May 30, 1965 telling him that he was sent by the hacienda owner to tell
the brim of the right hip bone at the back. (Exh. "A", p. 2, Vol. I, rec.). him that he cannot work in the hacienda and that he will be removed as
tenant; that he was then cutting wood beside the stairway with a bolo
Dr. Alberto opined that wound no. 1 on the forehead was mortal and was (Exh. "D"), while the victim was standing also beside the stairs; that when
caused by a sharp instrument like a bolo, with the assailant on the side of he asked why he was being removed as tenant when it was his means of
and higher than the victim or the victim was stooping at the time said livelihood, the victim replied that he had no right to work on the land
wound was inflicted (pp. 3, 4, 7, t.s.n.); that wound no. 2, about 2 inches because it was not in his name, to which he countered that the victim had
long on the left wrist of the victim, was also caused by a sharp instrument no right to remove him for he (the victim) was only a messenger and also a
like a bolo, was not fatal and could have been inflicted when the victim tenant like him in the hacienda, which alone has the right to remove him
raised his hands in self defense with the right hand a little higher than the (pp. 23, 30, t.s.n.); that the victim became angry and with his right hand
left, adding that the victim could still move his hands (pp. 3, & 8, t.s.n.); drew his revolver tucked in his left side when they were about one meter
that wound no. 3 on the right forearm and about 3 or 4 inches above the apart (p. 23, t.s.n.); that with his left hand he immediately grabbed the
wrist could have been inflicted with a sharp instrument like a bolo when victim's right hand holding the revolver, forcing the victim to lean on the
the victim raised his hands in self-defense (pp. 3, 4, & 8, t.s.n.); that wound stairway, pinned the victim's right hand also on the stairs; that during their
no. 4, the swelling and ecchymosis about 2 ½ inches by 3 ½ inches on the struggle, the revolver fired four times continuously that with the bolo in his
lower angle of the right scapula and about 8 inches below the right armpit, right hand he struck the victim's right forearm; that when the victim
could have been caused by a rod or a bat or a fall or a bolo's handle, but wanted to get the gun with his left hand, he boloed the victim's left arm
not by the narrow back of a bolo (p. 5, t.s.n.); that wound no. 5 the about one inch from the left wrist; that he shook the victim's right arm
swelling and ecchymosis about 2 ½ inches by 3 ½ inches on the right pelvic downward causing the gun to fall to the ground; that when the victim tried
bone just above the waistline could have been caused by a rod with the to pick up the gun, he stepped backward and hacked the victim's forehead
assailant on the side of the victim (pp. 5-6, t.s.n.); that the victim was in a causing the victim to fall backward on the stairway, as he (appellant)

39
retrieved the gun to prevent the victim from picking it up again and then accused, informed the latter that the hacienda owner had removed him as
stepped about two meters backward for the victim might grab him (pp. 24, tenant, and directed him to vacate the land tilled by him as it was not
25, 31, 32, 34, t.s.n.); that thereafter the victim slowly got up and washed recorded in his name. When the accused questioned the victim's authority
his forehead with the water from the box nearby while sitting in front of to remove him, the victim became furious and drew his gun.
said box, after which he went to the municipal building with the bolo and
the gun which he surrendered to police inspector Casimiro Aguinaldo; that While it is true that the victim was taller and slightly bigger than the
the ecchymosis on the lower and right scapula of the victim might be due accused, the latter could match the strength of the right hand of the victim
to his having violently pushed the victim against the bamboo stairway with with his left hand since he was then a 37-year old farmer and the victim
two wooden lower steps (pp. 26, 27, t.s.n.); that he was alone in the house was 67 year of age or 30 years his senior. In his excitement and
that afternoon of May 30, 1965 when the incident happened as his wife apprehension of the peril to his life, appellant was not expected nor had
was then out selling meat and his children were with his father-in-law (p. the time, to determine whether he could save himself by just kicking the
20, t.s.n.); that the victim was taller and slightly bigger than he is; that the gun away from the victim or stepping on it or pushing the victim away
victim's son, Guillermo, is taller than his deceased father (p. 32, t.s.n.); and from the latter when the victim tried to pick up the gun after he was
that he is right-handed (p. 33, t.s.n.). already wounded on both forearms; or whether the victim, if able to pick
up the gun, could have fired the remaining two bullets at appellant who
By actual measurement, Guillermo Cabaral is 5'6" tall; while the accused was just about a meter away.
has a height of 5'3" (p. 33, t.s.n.).
The alleged dying declaration of the deceased which consists only of three
The prosecution did not offer any rebuttal evidence and relied mainly on brief, mostly monosyllabic, answers to equally brief questions of
the alleged ante mortem statement Exhibits "C" & "C-1" of the deceased partrolman Esmenino Delo, to wit:
and on the medical testimony of Dr. Pio Alberto, the town health officer.
There is therefore no testimonial evidence for the state as to how and why Q — Who boloed you?
the incident occurred for no eyewitness was presented.
A — Jose Encomienda.
It is most unfortunate that the police authorities did no cause the
immediate examination of the trigger of the revolver for finger prints and Q — Is this true?
of the stairs, the hands and clothing of both the accused and the victim for
powder burns, to determine whose fingers were actually on trigger of the A — Yes.
revolver.
Q — You thumbmark.
If the four slugs had been recovered, the same would have been helpful in
ascertaining the trajectory and direction of the bullets and whether they A — Yes. (Exhs. "C" & "C-1", pp. 4-5, Vol. 1, rec.).
could have been fired from the stairs or not.
uncorroborated as it is bereft of essential details as to the motive and
The unrebutted fact that the incident happened inside the yard and just circumstances surrounding the incident, does not generate the moral
beside the stairway of the house of the accused and that the victim was certainty as to the culpability of appellant. The evidence of the prosecution
armed with a revolver licensed in his name, confirms appellant's story that lacks the requisite sufficiency to persuade the human mind to agree with
the deceased, as the hacienda overseer, went to the residence who the

40
the conclusion of the trial court, whose decision cannot as a consequence Illegal aggression is equivalent to assault or at least threatened assault of
be sustained. immediate and imminent kind.4 Here when the deceased drew his gun
with his right hand, appellant grabbed with his free left hand the victim's
It is also doubtful whether the victim could hear or understand the three right hand holding the revolver, forced the victim to lean on the stairs and
questions propounded to him or could clearly mumble his three answers pinned the victim's right hand also on the stair. During the struggle, the
thereto or could nod his head; because policeman Esmenino Delo himself revolver fired four times continously and he hacked the victim's right
admitted that the victim was unconcious although still breathing, and forearm. When the victim tried to get the gun with his left hand, appellant
could not raise his head when they found him in the yard of the defendant boloed the victim's left arm and then shook the victim right arm downward
(pp. 13-14, t.s.n., Vol. III). causing the gun to fall to the ground and the victim tried to pick up the
gun, appellant stepped backward and hacked the victim's forehead, after
On the other hand, the plausibility and credibility of the unrebutted which he himself picked up the gun so as to prevent the victim, from
narration of the appellant as to the motive and circumstances surrounding retrieving the same.
and leading to the incident, is enhanced by its detail and by the fact that
appellant immediately surrendered that same afternoon to the police If the deceased had no intention to use his gun on the appellant, he would
authorities with his bolo and the revolver of the deceased,1 despite the not have drawn it or resisted appellant's attempt to prevent him from
fact that he was already laboring under a handicap by virtue of his previous using it. There was therefore real danger to the life or personal safety of
conviction as an accomplice to the crime of murder, which ordinarily would the appellant.5
impair his trustworthiness.
The instant case is quite analogous to the case of People vs. Pangan, et al
Under the circumstances, the version of the appellant appears to meet the wherein the accused, also an agricultural share tenant, killed with a
required clear and convincing evidence to establish self-defense,2 or penknife the superintendent of the hacienda. When the accused therein
weakens all the more and therefore neutralizes the effect of the proof of denied the charge of the superintendent that he was letting his carabaos
the prosecution. The story of the appellant is partly corroborated by run loose to destroy the tender sugar cane shoots, the deceased while
Aurelio Encomienda, his second cousin (p. 41, t.s.n., Vol. II) and nearest berating him, struck him twice with a whip hitting him (the accused) on the
neighbor just about four meters away (p. 37, t.s.n. Vol. III), who testified to left temporal and occipital regions causing his ear to bleed, against which
his having heard several shots while he was lying down that afternoon and the accused offered no resistance but only tried to evade the blows. After
thereafter his having seen through a hole in his kitchen the victim sitting they were separated by a third party, the accused sat down on an acacia
under the shed of the stairs of appellant house, who was also sitting in trunk, but the deceased approached him again and insultingly asked him
front of the victim and holding a bolo and a revolver, which Aurelio whether he wanted to fight, to which accused replied he would not fight.
Encomienda related the next morning to the barrio captain, who called for Thereafter, the accused retired to his home. Between four and five o'clock
him. (pp. 37-40, t.s.n., Vol. III). in the afternoon of the same day, accused went to the house of the
deceased to ask him to return his two cows that had been caught but the
Three essential elements must concur for legitimate self-defense to exist, deceased kicked him and struck him with a cane, causing a welt on this left
namely; (1) unlawful aggression on part of the victim; (2) reasonable shoulder. As the accused stepped back to avoid the second blow aimed at
necessity of the means, employed to prevent or repel the attack; and (3) him, the deceased placed his right hand upon the handle of the revolver he
lack ofsufficient provocation on the part of the person defending himself.3 carried by his waist. When the accused saw this intention of the deceased,
he drew his knife and opened it with his teeth. The deceased then drew his
revolver; but before he could fire it, the accused wrestled with him and

41
caught the hand holding the gun. During the ensuing struggle, both fell to
the ground, the deceased upon his back, while the accused upon him, with In the case at bar, appellant did not immediately hack the deceased to
one hand griping the deceased's hand holding the revolver and with the completely disable him, much less to kill him. When the deceased drew his
other stabbing the deceased on the abdomen and other parts of the body gun with his right hand, the appellant merely grabbed the right hand of the
including the right arm compelling the deceased to drop the revolver. Then deceased holding the gun, pinning said right hand on the stairs without
the accused took hold of the revolver and threw it to one side. Thereafter, striking the deceased with the bolo in his right hand. After the gun fired
he ran to the municipal building and surrendered to the four times continuously as they struggled, it was only then that appellant
authorities.7 The defense of the accused in said case was sustained by the struck the right forearm of the victim with his bolo. Appellant could have
Court. continued hacking the deceased right then and there. But he did not. He
boloed the victim's left forearm because the victim tried to get the gun
In U.S. vs. Domens,8 the theory of self-defense was likewise upheld. There from his right hand. And then he just shook the right arm of the victim
the deceased and the accused quarreled about a carabao which had gotten downward, forcing the latter to release the gun which fell to the ground. It
into the corn patch of the deceased, who, by reason thereof, struck the was only when the deceased tried to pick up the gun that the appellant
accused four orfive times with a piece of wood about one yard long and boloed him on the forehead. As heretofore stated, appellant had no time
about the size of one's wrist. The accused did not retreat but struck back to coolly deliberate on whether he could save himself by just kicking the
wounding the deceased on the forehead. gun away or by just pushing or boxing the victim or stepping on the hands
of the deceased to prevent him from getting the gun and firing the same at
In U.S. vs. Mojica,9 the deceased, a constabulary soldier resisted arrest, him. The immediate danger to his life precluded such serene
struck the arresting policeman with a fist, drew a mess kit knife and rationalization on his part.
brandished it at the accused, another policeman, who retreated a step or
two, drew his revolver and fired, killing the soldier. WE ruled that the It should be stressed that the victim did not sustain any gunshot wounds.
policeman acted in self-defense. After taking possession of the victim's revolver, appellant did-not use it
against the victim to finish him off, nor did he continue hacking the
That there is reasonable necessity of the means employed by herein deceased with his bolo. He was free to do either as the victim was
appellant to prevent or repel the unlawful aggression cannot seriously be completely rendered hors de combat. Instead the appellant allowed the
disputed. "Reasonable necessity of the means employed does not imply disabled and defenseless victim to wash his wounds with water in
material commensurability between the means of attack and defense. appellant's own wooden box.
When the law requires is rational equivalence, in the consideration of
which will enter as principal factors the emergency, the imminent danger In U . S. vs. Molina, 11 the accused was unarmed while the deceased
to which the person attacked is exposed and the instinct, more than the attacked him with a bolo. After overpowering the deceased and wresting
reason, that moves or impels the defense, and the proportionateness the bolo from him, the accused struck the deceased several times with the
thereof does not depend upon the harm done, but rests upon the bolo thereby killing him almost instantaneously as the deceased tried to
imminent danger of such injury ... ." 10 As WE stated in the case of People seize a hatchet. Under the circumstances, WE held that the accused
vs. Lara, in emergencies of this kind, human nature does not act upon employed reasonable means to repel the assault against his life.
processes of formal reason but in obedience to the instinct of self-
preservation; and when it is apparent that a person has reasonably acted In People vs. Rabandaban, 12 one night appellant found his wife lying in
upon this instinct, it is the duty of the courts to sanction the act and hold bed with another man, who escaped through the window. He scolded his
the act irresponsible in law for the consequences." wife and ordered her to leave the house. Calling him names, the wife

42
gathered her clothes and picked up a bolo in the kitchen. When the
accused husband followed her there, she attacked him with the bolo, In view of the uncontradicted testimony of the appellant that the victim
wounding him twice on the abdomen. Wresting the bolo from his wife, drew his revolver to assault the appellant, which is not a lawful purpose,
appellant stabbed her with it in the breast, causing her death that same the victim lost thereby the privilege to possess the same.
night. WE ruled that the appellant acted in self-defense and that there was
reasonable necessity of the means employed by him to repel the attack. WHEREFORE, the appealed judgment is hereby reversed, the accused-
WE overruled the opinion of the trial court wherein it stated that appellant appellant is hereby acquitted, and his immediate release from
could have saved himself by throwing away the bolo after wresting it from confinement is hereby ordered.
his wife and that there was no need for him to stab her once she was
disarmed; because she struggled to regain possession of the bolo, The .32 caliber revolver with serial No. 15446 (Exh. "E") is hereby ordered
justifying appellant's belief that his wife wanted to finish him off. forfeited to the government and the Clerk of Court is hereby directed to
Considering that he must have been losing strength due to loss of blood, deliver the same for record purposes to the official headquarters of the
with his wife armed to fight to the finish, it would have been sheer folly or Philippine Constabulary at Camp Crame, Quezon City. The bolo (Exhibit
stupidity on his part to throw away the bolo so that his wife may again use "D") is ordered returned to appellant.
it against him.

In People vs. Sumikat, 13 a bolo was considered a reasonable means of G.R. No. L-23249 November 25, 1974
repelling an attack by a bully of known violent disposition, who was larger
and stronger than the accused and who was trying to wrest the bolo from THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
him. vs.
CUNIGUNDA BOHOLST-CABALLERO, accused-appellant.
In People vs. Lara, supra, the use of a pistol in shooting to death the
deceased who was much stronger than the appellant and who in the Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor
darkness and from behind suddenly threw his arms around appellant and General Florencio Villamor and Attorney Concepcion F. Torrijos for
attempted to wrest the pistol from him, was considered reasonably plaintiff-appellee.
necessary; because by reason of the darkness as well as the superior
strength of the deceased, there was probability that the deceased would Accused-appellant in her own behalf.
seize control of the pistol and use it against appellant.

There certainly was lack of sufficient provocation on the part of appellant. MUÑOZ PALMA, J.:p
On the contrary, he was the one provoked by the deceased. He was in his
own yard cutting wood when the deceased arrived ordering him to vacate Convicted for having killed her husband, Cunigunda Boholst-Caballero
the land he was then tilling, which was his livelihood. Ejecting him from the seeks a reversal of the judgment of the Court of First Instance of Ormoc
land he was farming and which his father farmed before him, was, to this City finding her guilty of PARRICIDE and sentencing her "to suffer an
simple farmer, like depriving him of his life. Yet, with all that provocation, indeterminate imprisonment of from EIGHT (8) YEARS and ONE (1) DAY of
appellant merely told the deceased that the latter had no right to eject him prision mayor in its medium period, as the minimum, to FOURTEEN (14)
from the land because he was also a tenant like him in the hacienda. YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal in its
Certainly, this retort was no justification for the victim to draw his gun. medium period as the maximum; to indemnify the heirs of Francisco

43
Caballero in the sum of SIX THOUSAND PESOS (P6,000.00) without the "MV Ormoc" but the trip proved futile because the victim died at
subsidiary imprisonment in case of insolvency, and to pay the costs", and noontime of the same day from the stab wound sustained by him.7
prays for an acquittal based on her plea of self-defense.1
Appellant, on the other hand, pleads that We discard the proof adduced by
The Solicitor General however asks for the affirmance of the appealed the prosecution and believe instead what she declared before the trial
decision predicated on the following testimonial and documentary judge briefly summarized as follows:
evidence presented by the prosecution before the trial court:
After her marriage to Francisco Caballero on June 7, 1956, appellant lived
Cunigunda Boholst and Francisco Caballero, both at the age of twenty, with her husband in the house of her parents in barrio Ipil, Ormoc City, and
were married on June 7, 1956, at a ceremony solemnized by the parish their marriage, although not a harmonious one, was blessed with a
priest of the Roman Catholic Church in Ormoc City.2 The marriage was not daughter; her married life was marked by frequent quarrels caused by her
a happy one and before the end of the year 1957 the couple separated. husband's "gambling, drinking, and serenading", and there were times
Late in the evening of January 2, 1958, Francisco Caballero and two when he maltreated and beat her; after more than a year she and her
companions, namely, Ignacio Barabad and Kakong Sacay, drank "tuba" in a husband transferred to a house of their own, but a month had hardly
certain house in barrio Ipil, Ormoc City. At about midnight, Francisco passed when Francisco left her and her child, and she had to go back to live
Caballero and his companions proceeded home. On the way, they saw with her parents who bore the burden of supporting her and her child; in
Francisco's wife, Cunigunda, standing at the corner of the yard of Igmedio the month of November, 1957, her daughter became sick and she went to
Barabad Cunigunda called Francisco and when the latter approached her, her husband and asked for some help for her sick child but he drove her
Cunigunda suddenly stabbed Francisco with a knife marked by the away and said "I don't care if you all would die"; in the evening of January
prosecution as its Exhibit C. Francisco called for help to his two 2, 1958, she went out carolling with her friend, Crispina Barabad, and
companions who upon seeing that Francisco was wounded, brought him to several men who played the musical instruments; at about 12:00 o'clock
the St. Jude Hospital.3 Dr. Cesar Samson, owner of the hospital, personally midnight they divided the proceeds of the carolling in the house of Crispina
attended to the victim and found a "punctured wound on the left lumbar Barabad after which she went home, but before she could leave the
region measuring 1 inch externally" (Exhibit B). First aid was given, but vicinity of the house of Crispina, she met her husband Francisco, who upon
because there was a need for blood transfusion and the facilities of the seeing her, held her by the collar of her dress and asked her: "Where have
hospital were inadequate to provide the necessary treatment, Dr. Samson you been prostituting? You are a son of a bitch."; she replied: "What is
suggested that the patient be transported to Cebu City.4 In the meantime, your business. Anyway you have already left us. You have nothing to do
Cunigunda Caballero had gone to the Police Department of Ormoc City, with us"; upon hearing these words Francisco retorted: "What do you
surrendered to desk sergeant Restituto Mariveles and informed the latter mean by saying I have nothing to do with you. I will kill you all, I will kill you
that she stabbed her husband.5 While Francisco Caballero was confined at all"; Francisco then held her by the hair, slapped her face until her nose
the hospital, he was interrogated by Patrolman Francisco Covero bled, and pushed her towards the ground, to keep herself from falling she
concerning the identity of his assailant and he pointed to his wife held on to his waist and as she did so her right hand grasped the knife
Cunigunda. The questions propounded by Pat. Covero and the answers tucked inside the belt line on the left side of his body; because her
given by the victim were written down in a piece of paper on which the husband continued to push her down she fell on her back to the ground;
victim affixed his thumbmark (Exhibit D) in the presence of his brother, her husband then knelt over her, held her neck, and choked her saying.
Cresencio Caballero, and another policeman, Francisco Tomada.6 On "Now is the time I can do whatever I want. I will kill you"; because she had
January 4, 1958, Francisco Caballero was brought to Cebu City on board "no other recourse" as she was being choked she pulled out the knife of
her husband and thrust it at him hitting the left side of his body near the

44
"belt line" just above his left thigh; when she finally released herself from
the hold of her husband she ran home and on the way she threw the knife; Third. Lack of sufficient provocation on the part of the person defending
in the morning of January 3, she went to town, surrendered to the police, himself.
and presented the torn and blood-stained dress worn by her on the night
of the incident (see Exhibit I); Pat. Cabral then accompanied her to look for xxx xxx xxx
the weapon but because they could not find it the policeman advised her
to get any knife, and she did, and she gave a knife to the desk sergeant As part of this law is the settled jurisprudence that he who seeks
which is the knife now marked as Exhibit C for the prosecution.8 justification for his act must prove by clear and convincing evidence the
presence of the aforecited circumstances, the rationale being that having
The sole question thus presented in this appeal is: did appellant stab her admitted the wounding or killing of his adversary which is a felony, he is to
husband in the legitimate defense of her person? be held criminally liable for the crime unless he establishes to the
satisfaction of the court the fact of legitimate self-defense. 11
The law on self-defense embodied in any penal system in the civilized
world finds justification in man's natural instinct to protect, repel, and save In this case of Cunigunda Caballero, the trial court did not find her
his person or rights from impending danger or peril; it is based on that evidence clear and convincing, and gave these reasons for its conclusion: a)
impulse of self-preservation born to man and part of his nature as a human appellant's testimony is inherently improbable as brought out by her
being. Thus, in the words of the Romans of ancient history: Quod quisque demonstration of the incident in question during the trial of the case; b)
ob tutelam sui fecerit, jure suo ficisse existimetur.9 To the Classicists in there was no wound or injury on appellant's body treated by any physician:
penal law, lawful defense is grounded on the impossibility on the part of c) appellant's insistence that the weapon used by her was Moro hunting
the State to avoid a present unjust aggression and protect a person knife and not Exh. C is incredible; d) she gave contradictory statements
unlawfully attacked, and therefore it is inconceivable for the State to concerning the report made by her to the police authorities that she was
require that the innocent succumb to an unlawful aggression without choked by her husband; and e) her husband's abandonment of her and her
resistance; while to the Positivists, lawful defense is an exercise of a right, child afforded the motive behind appellant's
an act of social justice done to repel the attack of an aggressor.10 attack. 12

Our law on self-defense is found in Art. 11 of the Revised Penal Code which We are constrained, however, to disagree with the court a quo and depart
provides: from the rule that appellate court will generally not disturb the findings of
the trial court on facts testified to by the witnesses.
ART. 11. Justifying circumstances. — The following do not incur any
criminal liability: An examination of the record discloses that the trial judge overlooked and
did not give due importance to one piece of evidence which more than the
1. Anyone who acts in defense of his person or rights, provided that testimony of any witness eloquently confirms the narration of appellant on
the following circumstances concur: how she happened to stab her husband on that unfortunate night. We
refer to the location of the wound inflicted on the victim.
First. Unlawful aggression;
Appellant's account of that fatal occurrence as given in her direct
Second. Reasonable necessity of the means employed to prevent or repel testimony follows:
it;

45
Q At that precise time when you were going home to the place of Q And then, what happened?
your parents, did any unusual incident occur?
A He held my hair and slapped my face twice. Then I staggered and
A Yes, sir. my nose was bleeding.

Q What was it? Q Do you mean to say that blood flowed out of your nose?

A At the time when I went down from the house of Crispina A Yes, sir.
Barabad, when I reached near the banana hill, my husband held me.
Q After you were slapped twice and your nose begun to bleed, what
Q What happened when your husband, Francisco Caballero, held happened next?
you?
A He held the front part of my dress just below the collar and
A He asked me from where did I prostitute myself. pushed me towards the ground. .

Q What did you answer? Q While your husband was holding your dress below the neck and
tried to push you down, what did you do?
A I answered that I did not go (on) prostituting. I told him that I was
only forced to accompany with the carolling in order to earn money for our A I held a part of his body in order that I would not fall to the
child. ground.

Q What part of your body did your husband, Francisco Caballero, Q And then what happened?
hold you?
A Because I struggled hard in order that I would not fall to the
A He held me at the collar of my dress. (Witness holding the right ground I held his belt and that was the time I got hold of a weapon along
portion of the collar of her dress.) his belt line.

Q After you answered Francisco, what did he do? Q After that what happened?

A He said "Where have you been prostituting? You are a son of a A He shoved my hands upward and pushed me to the ground and
bitch." Then I told him "What is your business. Anyway you have already that was the time my hands were released. He was choking me.
left us. You have nothing to do with us."
Q When you said your hands were released, was that before or after
Q When Francisco heard these words, what did he do? you were choked by Francisco Caballero?

A Francisco said "What do you mean by saying l have nothing to do A At that time when I was about to fall to the ground that was the
with you. I will kill you all. I will kill you all." time I released my hands.

46
Q When you were almost fallen to the ground, where were the A When I took hold of the hunting knife I made the thrust in this
hands of Francisco Caballero? manner. (Witness held the ruler with her right hand kneeled on the floor)"
(tsn. p. 67, ibid)
A On my hair.
still We can get a clear picture of what appellant must have done, from the
Q You mean to say the two hands of Francisco Caballero? questions and answers immediately following the above-quoted portion of
the transcript, viz:
A One of his hands was holding my hair. The other hand pushed me.
Q You want to make us understand that when you thrust the
COURT: weapon to the body of your husband you were lying down flat to the
ground?
Q What hand was holding your hair?
A I was lying flat on the ground face upward. I was a little bit
A His right hand was holding my hair while his left hand pushed me. inclined because tried to struggle trying to get away from the hold of my
husband.
ATTORNEY GARCIA:
Q You want to make us understand that your back was touching the
Q When you were fallen to the ground what happened? ground when you made the thrust to your husband?

A While I lay prostrate on the ground and believing that I have no A Yes, sir.
other recourse, while his left hand was holding my neck, I was able to take
hold of the weapon from his belt line and I thrust it to him. COURT:

Q What was this weapon which you were able to get from his belt Q Where were you kneeled by your, husband?
line?
A On my right thigh. (ibid; emphasis supplied)
A It was a hunting knife." (tsn. pp. 53-55, witness Cunigunda
Caballero) Thus, with her husband kneeling over her as she lay on her back on the
ground and his hand choking her neck, appellant, as she said, had no other
On cross-examination, appellant was asked by the private prosecutor to recourse but to pull out the knife inserted at the left side of her husband's
show her position when she stabbed her husband and she did, and belt and plunge it at his body hitting the left back portion just below the
although the stenographic notes on that demonstration are very sketchy waist, described by the attending physician, Dr. Cesar Samson, as the left
which We quote: lumbar region. The fact that the blow landed in the vicinity from where the
knife was drawn is a strong indication of the truth of appellant's testimony,
Q Please demonstrate to this Court when you made the thrust to for as she lay on the ground with her husband bent over her it was quite
your husband? natural for her right hand to get hold of the knife tucked in the left side of
the man's belt and thrust it at that section of the body nearest to her hand
at the moment.

47
A My two hands held his waist line. (tsn. 66, witness Cunigunda
We do not agree with the trial judge's observation that as demonstrated Caballero; emphasis supplied)
by the accused it was physically impossible for her to get hold of the
weapon because the two knees of her husband were on her right thigh In that demonstration, accused represented the victim while she in turn
"which would have forced her to put her right elbow towards the was impersonated by the court interpreter, and so it was difficult if not
ground"(see p. 9 of Decision), for even if it were true that the two knees of impossible for the two to give an accurate reenactment considering that
Francisco were on his wife's right thigh, however, there is nothing in the the accused assumed a role not hers during the actual incident and the
record to show that the right arm of the accused was held, pinned down or court interpreter played a part which was not truly his. At any rate, the
rendered immobile, or that she pressed her elbow to the ground, as accused showed how one hand of her husband held her hair while the
conjectured by the trial judge, in such a manner that she could not reach other pushed her down by the shoulder, and to portray how she in turn
for the knife. On the contrary, as indicated earlier, accused testified and so struggled and tried to push back her husband to keep herself from falling,
demonstrated that she was lying flat on her back, her husband kneeling she "pulled the interpreter (representing the accused) to and fro." The fact
over her and her right arm free to pull out the knife and strike with it. is that Francisco succeeded in forcing appellant down to the ground as
portrayed by the latter when, following the foregoing demonstration, she
The trial judge also referred the a demonstration made by appellant of that was asked by the private prosecutor to show how she stabbed her
portion of her testimony when she was held by the hair and pushed down husband — a matter which is discussed in pages 8 and 9 of this Decision.
to the ground, and His Honor commented that "(S)he could not be falling
to the ground, as shown to the Court by her, considering the fact that the It is this particular location of the wound sustained by the victim which
pushing was to and fro as shown in her demonstration." (p. 8, Decision) strongly militates against the credibility of the lone prosecution witness,
The trial judge, however, failed to consider that it is humanly impossible to Ignacio Barabad. This witness declared that on that night when husband
have an exact and accurate reproduction or reenactment of an occurrence and wife met on the road, Cunigunda called Francisco and when the latter
especially if it involves the participation of persons other than the very was near, she immediately stabbed him. If that were true, that is, husband
protagonists of the incident being re-enacted. In this particular instance and wife were standing face to face at a distance of one-half meter when
appellant was asked by the private prosecutor to show how she was the stabbing occurred (tsn. p. 11, witness Ignacio Barabad), it would have
pushed down by her husband, and her demonstration is described in the been more natural and probable for the weapon to have been directed
stenographic transcript as follows: towards the front part of the body of the victim such as his abdomen or
chest, rather than at his back, left side, just above the left thigh.
Q Please demonstrate to this Court the position of your husband
and you while your husband held your hair. In cases such as the one now before Us where there are directly conflicting
versions of the incident object of the accusation, the Court in its search for
A He did this way. (Witness held the hair of the Court Interpreter the truth perforce has to look for some facts or circumstances which can
with his left hand and his right hand held the right shoulder of the be used as valuable aids in evaluating the probability or improbability of a
Interpreter and pulled the Interpreter to and fro. The Interpreter testimony, for after all the element of probability is always involved in
represented as the accused and the accused as the deceased.) weighing testimonial evidence13, so much so that when a court as a
judicial fact-finder pronounces judgment that a set of facts constitute the
Q Where were your two hands? true happening it does so not of its own personal knowledge but as the
result of an evaluating process of the probability or improbability of a fact
sought to be proved.

48
On the other hand, it was Francisco Caballero who had a reason for
Thus, in People vs. Aquino, L-32390, December 28, 1973, a decision of the attacking his wife, Cunigunda. Meeting his wife unexpectedly at past
First Division of this Court penned by Chief Justice Querube C. Makalintal, midnight on the road, Francisco reacted angrily, and suspecting that she
the plea of self-defense of the accused-appellant was sustained on the was out for some bad purpose he held her by the collar of her dress and
basis of certain "physical and objective circumstances" which proved to be said: "Where have you been prostituting? You are a son of a bitch." This
of "decisive importance" in ascertaining the veracity of the plea of self- was followed by a slapping on the face until Cunigunda's nose bled, pulling
defense, to wit: the location of the wound on the right side of the throat of her hair, pushing her down to the ground, and strangling her — all of
and right arm of the deceased, the direction of the trajectories of the which constituted the unlawful aggression against which appellant had to
bullets fired by the accused, the discovery of bloodstains at the driver's defend herself.
seat, the finding of the dagger and scabbard of the deceased, and so on. 14
Next to appellant's lack of motive for killing her husband, is her conduct
In the case of appellant Cunigunda Caballero, We find the location of the shortly after the occurrence. As soon as the sun was up that morning of
fatal wound as a valuable circumstance which confirms the plea of self- January 3 (the stabbing occurred past midnight of January 2), Cunigunda
defense. went to the city and presented herself at the police headquarters where
she reported that she stabbed her husband and surrendered the blood-
Another, is the lack of motive of appellant in attacking and killing her stained dress she wore that night. On this point, the trial judge stated that
husband on that particular night of January 2. Although it is the general appellant made contradictory statements in her testimony concerning the
rule that the presence of motive in the killing of a person is not report made by her to the police authorities, for while at the start she
indispensable to a conviction especially where the identity of the assailant declared that she did not report the "choking by her husband", she later
is duly established by other competent evidence or is not disputed, as in changed her testimony and stated that she did relate that fact. (p. 10,
this case, nonetheless, the absence of such motive is important in Decision)
ascertaining the truth as between two antagonistic theories or versions of
the killings. 15 We have gone over the stenographic transcript of the testimony of
appellant on direct examination and nowhere is there a positive and direct
We disagree with the statement of the court a quo that appellant's motive statement of hers that she did not report that she was choked by her
for killing her husband was his abandonment of her and his failure to husband. What the trial judge asked of appellant was whether or not she
support her and her child. While appellant admitted in the course of her told the police about the fist mark on her face and her answer was "No, sir,
testimony that her marriage was not a happy one, that she and her I forgot." (tsn. p. 55, supra) And on appellant's cross-examination, there
husband separated in the month of October, 1957, and since then she and was no question propounded and therefore there was no answer given on
her child lived with her parents who supported them, nevertheless she the subject-matter of appellant's report to the police concerning the
declared that notwithstanding their separation she still loved her husband incident except for the following:
(tsn. p. 59, cross-examination of appellant). As a matter of fact, appellant
had been living with her parents for several months prior to the incident in COURT:
question and appeared resigned to her fate. Furthermore, there is no
record of any event which occurred immediately prior to January 2 which Q Did you show that dress to the police authorities the following
could have aroused her feelings to such a degree as to drive her to plan day?
and carry out the killing of her husband.
A I was not able to wear that, Your Honor, because it was torn out.

49
dress marked Exhibit 1 for the defense. (tsn. p. 70 witness J. de Leon) If
Q You did not bring that to the police authorities? there was no clear and positive statement in appellant's testimony either
on direct or cross examination that she informed the police that she was
A I showed it to the police authorities, and they told me to keep it, choked by her husband, it was because, as We noted, no question was
not to touch it. (Tsn. p. 65, ibid) propounded to her on that point.

We do not see, therefore, the alleged contradiction in appellant's While We are on this subject of appellant's surrender, mention is to be
testimony which was singled out by His Honor as one of his reasons for made of the knife marked as Exhibit C for the prosecution. In her
discrediting her plea of self-defense. testimony, appellant stated that Exhibit C was not the knife actually used
by her in stabbing her husband because the true weapon was her
That appellant made it clear to the police that she stabbed her husband husband's Moro hunting knife with a blade of around six inches which she
because he attacked her is confirmed by no less than the prosecution threw away immediately after the incident; that when she was asked by
witness, Patrolman Restituto Mariveles, who was on duty at the desk when Pat. Mariveles to look for the weapon and she could not find it, she was
appellant arrived at the police headquarters. This witness on cross- advised by policeman Cabral who helped her in the search to get any knife
examination declared: and surrender it to the desk officer and so she took the knife Exhibit C and
presented it to Pat. Mariveles. (tsn. appellant pp. 56-57, 60) This testimony
Q And she also told you that on that night previous to the incident of appellant was taken against her by the court a quo which held that her
her husband Francisco Caballero beat her up, is that right? declaration could not have been true. We find however no strong reason
for disbelieving the accused on this point. Appellant does not deny that she
A She told me that she was met on the way by her husband turned over Exhibit C to Pat. Mariveles as the knife with which she stabbed
immediately after carolling and she was manhandled by her husband and her husband but she claims that she did so upon advise of another
when she was struggling to get loose from her husband she happened to policeman, Pat. Cabral, and it is quite significant that the latter was not
take hold of a knife that was placed under the belt of her husband and called upon by the prosecution to refute such declaration. There is
because she was already half conscious she did not know that she was able sincerity in appellant's attempt to rectify a misstatement made by her to
to thrust said knife to the stomach of her husband. (tsn. p. 23, witness R. Pat. Mariveles and We are inclined to believe and in fact We do believe
Mariveles) that the fatal weapon must have had indeed a blade of around six inches
as stated by appellant for it to penetrate through the left lumbar region to
It is indeed regrettable that the statements made by appellant to the the victim's large intestine and cause the discharge of fecal matter (tsn. Dr.
police upon her surrender were not taken down in writing to serve as a C. Samson, p. 6)
faithful and reliable account of her report, nevertheless, We are satisfied
by the fact, which is not disputed, that of her own accord appellant went All the elements of self-defense are indeed present in the instant case.
to the police authorities early in the morning of January 3, informed
Policeman Mariveles that she stabbed her husband because he The element of unlawful aggression has been clearly established as
manhandled her which rendered her "half-conscious", and brought and pointed out above.
showed the dress she wore during the incident which was torn by the
collar and with blood stains due to the bleeding of her nose. Another The second element, that is, reasonable necessity for the means employed
policeman, Joventino de Leon, who at the time was property custodian of is likewise present. Here we have a woman who being strangled and
the Ormoc City police, corroborated appellant's testimony concerning the choked by a furious aggressor and rendered almost unconscious by the

50
strong pressure on her throat had no other recourse but to get hold of any confronted by her husband for being out late at night, accused gave a valid
weapon within her reach to save herself from impending death. Early excuse that she went carolling with some friends to earn some money for
jurisprudence of this Court has followed the principle that the reasonable their child. January 2 was indeed within the Christmas season during which
necessity of the means employed in self-defense does not depend upon by tradition people carol from house to house and receive monetary gifts
the harm done but rests upon the imminent danger of such injury. (U.S. vs. in a Christian spirit of goodwill. The deceased therefore should have given
Paras, 1907, 9 Phil. 367, citing Decision of Dec. 22, 1887) And so the fact some consideration to his wife's excuse before jumping to conclusions and
that there was no visible injury caused on the body of the appellant which taking the extreme measure of attempting to kill his wife.
necessitated medical attention, a circumstance noted by the trial court, is
no ground for discrediting self-defense; what is vital is that there was IN VIEW OF THE ABOVE CONSIDERATIONS, We find that accused-appellant
imminent peril to appellant's life caused by the unlawful aggression of her acted in the legitimate defense of her person, and We accordingly set aside
husband. The knife tucked in her husband's belt afforded appellant the the judgment of conviction and ACQUIT her with costs de oficio.
only reasonable means with which she could free and save herself from
being strangled and choked to death. What this Court expressed in the So Ordered.
case of People vs. Lara, 1925, 48 Phil. 153, 160, is very true and applicable
to the situation now before Us, and We quote:
G.R. No. 148810 November 18, 2003
It should be borne in mind that in emergencies of this kind human nature
does not act upon processes of formal reason but in obedience to the PEOPLE OF THE PHILIPPINES, appellee,
instinct of self-preservation; and when it is apparent, as in this case, that a vs.
person has reasonably acted upon this instinct, it is the duty of the courts HEVER PAULINO y BIYAYA, appellant.
to sanction the act and to hold the actor irresponsible in law for the
consequences. 16 DECISION

Equally relevant is the time-honored principle: Necessitas Non habet YNARES-SANTIAGO, J.:
legem. Necessity knows no law.
This is an appeal from the decision1 of the Regional Trial Court of
The third element of self-defense is lack of sufficient provocation on the Dumaguete City, Branch 34, in Criminal Case No. 12720 finding appellant
part of the person defending himself. Provocation is sufficient when it is Hever Paulino y Biyaya guilty beyond reasonable doubt of the crime of
proportionate to the aggression, that is, adequate enough to impel one to Murder, sentencing him to suffer the penalty of reclusion perpetua and
attack the person claiming self- ordering him to indemnify the heirs of the victim the sum of P50,000.00.
defense. 17 Undoubtedly appellant herein did not give sufficient
provocation to warrant the aggression or attack on her person by her For the death of the Leonarda Paulino, appellant was charged with murder
husband, Francisco. While it was understandable for Francisco to be angry in an Information that reads:
at his wife for finding her on the road in the middle of the night, however,
he was not justified in inflicting bodily punishment with an intent to kill by That on 18 August 1996 at about 5:00 o'clock in the afternoon in Sitio
choking his wife's throat. All that appellant did was to provoke an Tubod, Tamao, Tayasan, Negros Oriental, Philippines and within the
imaginary commission of a wrong in the mind of her husband, which is not jurisdiction of this Honorable Court the above-named accused, with intent
a sufficient provocation under the law of self-defense. Upon being to kill and with treachery and evident premeditation and without regard of

51
the respect due to the offended party on account of her sex did then and Dr. Virgilio de Guzman, the government physician at the Negros Oriental
there willfully, feloniously and unlawfully attack, assault and stone one Provincial Hospital who attended to the victim, testified that the injuries
Leonarda Paulino with a large rock thereby inflicting upon the latter fatal sustained by the victim were fatal and no amount of surgical intervention
injury at her head which caused her death soon thereafter. could have saved her. The victim died on August 19, 1996 at 8:30 a.m. due
to cardio-pulmonary arrest secondary to uncal herniation secondary to
CONTRARY TO ART. 248 of the Revised Penal Code.2 severe traumatic injury.5

When arraigned, appellant pleaded not guilty.1âwphi1 Thereafter trial on For his part, appellant admits that he threw a stone at the victim but
the merits ensued. claims that he did so in self-defense. According to him, in the afternoon of
August 18, 1996, he passed by the house of the victim and asked for water
The facts of the case are as follows: to drink. After Mylene Paulino gave him a glass of water, he asked her if
she already had a boyfriend. Mylene did not reply but kicked him instead.
On August 18, 1996, at about 5:00 p.m., the victim and her daughters, Joy She then went into the kitchen. Suddenly, the victim came out of the
and Mylene, were at their house when appellant passed by and asked for kitchen holding a scythe in her hand and shouted at him, "I will kill you! I
water to drink. Since he was the nephew of the victim, appellant was will chop you finely with the use of this scythe!" Appellant ran away and
welcomed into the house and was given a glass of water by Mylene. He the victim chased him. When the victim was about 3 meters away from
stayed at their porch while Mylene left for the house of her grandmother, him, he picked a stone and threw it at her to defend himself. After that, he
Vivenciana Cantero, approximately 40 meters away. Moments later, the ran towards their house. He did not see whether the victim was hit or not.
victim advised appellant to go home as his father might be looking for him. That same night, he told his father what happened. The following morning,
Appellant left the house angry at the victim for telling him to leave. Then, he went to the house of policeman Remegio Torres to surrender. He was
as the victim and Joy walked towards the house of Vivenciana Cantero to accompanied to the police station of Tayasan, Negros Oriental, where he
fetch Mylene, Joy saw appellant, who was only about 2 meters behind was investigated and detained.6
them, throw a rock at them hitting the head of the victim. The victim
slumped to the ground with her face down while appellant ran away. After trial, the court a quo rendered a decision, the dispositive portion of
Vivenciana heard the cries of Joy for help, and rushed to the scene. Her which reads:
husband, Timoteo Cantero and Leonila Onayan, Joy's aunt, helped
Vivenciana bring the victim to Bindoy District Hospital where she was WHEREFORE, accused HEVER PAULINO is hereby found guilty beyond
treated. She was then transferred to the Negros Oriental Provincial reasonable doubt of the crime of Murder, qualified by treachery, and the
Hospital later that night. The victim died the following day.3 Court hereby imposes upon him the penalty of RECLUSION PERPETUA.

Dr. Fe Herrera, a resident physician of Bindoy District Hospital, testified Accused is likewise directed to indemnify the heirs of victim Leonarda
that the victim was unconscious when she was brought by the relatives to Paulino the amount of FIFTY THOUSAND PESOS (P50,000.00).
the hospital. The victim sustained two lacerated wounds, one on the left
temporal region, about three centimeters long and the other one on the In line with Section 5, Rule 114 of the 1985 Rules on Criminal Procedure, as
right parietal region, about six centimeters long. She referred the victim to amended, accused Hever Paulino is hereby ordered to be immediately
the Negros Oriental Provincial Hospital for further treatment.4 detained at the New Bilibid Prison in Muntinlupa City, Metro Manila. The
accused is, however, hereby given full credit for the entire period of his

52
preventive detention, provided that he has submitted himself to and accused fails to discharge the burden of proof, his conviction must ensue
observed the rules and regulations imposed by the detention center. as a matter of consequence.12

No pronouncement as to costs. By invoking self-defense, appellant must prove: (a) unlawful aggression on
the part of the victim; (b) reasonable necessity of the means employed to
SO ORDERED. 7 repel or prevent it; and (c) lack of sufficient provocation on the part of the
person defending himself.13 Although all the three elements must concur,
Hence, this appeal, based on the following assignment of errors: self-defense must rest firstly on proof of unlawful aggression on the part of
the victim. If no unlawful aggression has been proved, no self-defense may
I. be successfully pleaded, whether complete or incomplete. In other words
in self-defense, unlawful aggression is a primordial element.14
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER. The question whether appellant acted in self-defense is essentially a
question of fact.15 In convicting appellant, the trial court succinctly held
II. that:

THE COURT A QUO GRAVELY ERRED IN NOT CONSIDERING THE JUSTIFYING In the case at bar, the court is not persuaded to believe the assertion of
CIRCUMSTANCE OF SELF-DEFENSE INTERPOSED BY THE ACCUSED- accused Hever Paulino that he acted in self-defense when he threw a big
APPELLANT. stone at the head of victim Leornarda Paulino, which led to her death. As
admitted by the accused on the witness stand, he had no previous quarrel
III. or misunderstanding with victim Leonarda Paulino, nor with eyewitness
Joy Paulino, or with any members of their family. There is no reason,
ON THE ASSUMPTION THAT THE ACCUSED-APPELLANT IS LIABLE FOR THE therefore, why Leonarda would chase him with a scythe. There is also no
ACTS COMPLAINED OF, THE COURT A QUO GRAVELY ERRED IN reason at all why Joy Paulino would impute to the accused the heinous
APPRECIATING THE QUALIFYING AGGRAVATING CIRCUMSTANCE OF crime of Murder, if he did not commit the crime as charged. This is
TREACHERY.8 especially so, taking into account the fact that the accused, the victim and
the eyewitness are relatives. Leonarda is the wife of the uncle of the
Appellant's claim of self-defense is unavailing. accused, while Joy is the first cousin of the accused. Well-settled is the rule
that where there is no showing that the principal witnesses for the
Settled is the rule in criminal cases that the prosecution has the onus prosecution were actuated by any improper motive, the presumption is
probandi in establishing the guilt of the accused.9 However, where the that they are not so actuated and their testimonies are entitled to full faith
accused admits commission of the crime but invokes self-defense, the and credit. Mere relationship of a witness to the victim does not impair her
basic rule that the burden of proving the guilt of the accused lies on the credibility as to render her testimony unworthy of credence where no
prosecution is reversed, and the burden of proof is shifted to the accused improper motive can be ascribed to her for so testifying. The assertion of
to prove the elements of his defense.10 It then becomes incumbent upon the accused that the victim chased him with a scythe is unworthy of belief
him to rely on the strength of his own evidence and not on the weakness as it is unnatural, coupled by the fact that it runs counter to the credible
of the evidence of the prosecution, for even if the latter were weak, it and straightforward testimony of eyewitness Joy Paulino…
could not be disbelieved after he had admitted the killing.11 Hence, if the

53
xxx xxx xxx
In the subsequent case of People v. Aquino,21 the Court clarified its ruling
The fact that victim Leonarda Paulino advised the accused, who is the in the cases of Alba and Manlansing by holding that:
nephew of her husband, to go home because he has his own house and his
father might be looking for him, does not constitute an unlawful [T]he Court has repeatedly held, even after the recent amendments to the
aggression in contemplation of law. The victim simply showed concern for Rules of Criminal Procedure, that qualifying circumstances need not be
the accused and his father.16 (Citations omitted) preceded by descriptive words such as "qualifying" or "qualified by" to
properly qualify an offense.
We have consistently held that findings of facts and assessment of
credibility of witnesses are matters best left to the trial court because of its xxx xxx xxx
unique position of having observed that elusive and incommunicable
evidence of the witnesses' deportment on the stand while testifying, which Section 9, Rule 110 of the Revised Rules of Criminal Procedure states that
opportunity is denied to the appellate courts. The trial court's findings are the-
accorded finality, unless there appears in the record some fact or
circumstance of weight which the lower court may have overlooked, "x x x qualifying and aggravating circumstances must be stated in ordinary
misunderstood or misappreciated and which, if properly considered, would and concise language and not necessarily in the language used in the
alter the results of the case.17 No such fact or circumstance obtains in the statute but in terms sufficient to enable a person of common
case at bar.1âwphi1 understanding to know x x x (the) qualifying and aggravating circumstances
x x x."
Appellant failed to prove with satisfactory and convincing evidence that
the victim was guilty of unlawful aggression. Self-defense cannot be Thus, even the attendant circumstance itself, which is the essential
justifiably entertained where it is not only uncorroborated by competent element that raises the crime to a higher category, need not be stated in
evidence but is seriously doubtful. Like alibi, self-defense is inherently a the language of the law. With more reason, the words
weak defense, which is so easy to concoct but very difficult to verify.18 "aggravating/qualifying circumstances" as used in the law need not appear
Appellant's invocation of self-defense therefore deserves scant in the Information, especially since these words are merely descriptive of
consideration. the attendant circumstances and do not constitute an essential element of
the crime. These words are also not necessary in informing the accused
Appellant next argues that if he were to be held criminally liable, it should that he is charged of a qualified crime. What properly informs the accused
only be for homicide. According to him, treachery was not alleged in the of the nature of the crime charged is the specific allegation of the
Information with specificity as to qualify the killing to murder. He cites as circumstances mentioned in the law that raise the crime to a higher
bases for his argument the cases of People v. Alba19 and People v. category.
Manlansing,20 wherein the Court disregarded the qualifying circumstance
of treachery for the reason that it failed to specify treachery as a The rules require the qualifying circumstances to be specifically alleged in
circumstance qualifying the killing to murder. In said cases, treachery was the Information in order to comply with the constitutional right of the
considered only a generic aggravating circumstance; thus, the crime accused to be properly informed of the nature and cause of the accusation
committed was only homicide and not murder. against him. The purpose is to allow the accused to prepare fully for his
defense to prevent surprises during the trial.
We do not agree.

54
xxx xxx xxx commits any of the crimes against persons, employing means, methods or
forms in the execution thereof which tend directly and specially to insure
Section 8 of Rule 110 requires that the Information shall "state the its execution, without risk to himself arising from the defense which the
designation of the offense given by the statute, aver the acts or omissions offended party might make. The essence of treachery is the swift and
constituting the offense, and specify its qualifying and aggravating unexpected attack on the unarmed victim without the slightest
circumstances." (Emphasis supplied). Section 8 merely requires the provocation on his part.22
Information to specify the circumstances. Section 8 does not require the
use of the words "qualifying" or "qualified by" to refer to the In the case at bar, it was established that the victim had no reason to
circumstances which raise the category of an offense. It is not the use of expect that she will be assaulted by appellant. She and her daughter Joy
the words "qualifying" or "qualified by" that raises a crime to a higher were just walking towards the house of Vivenciana to fetch her other
category, but the specific allegation of an attendant circumstance which daughter Mylene. The unexpected and sudden attack on Leonarda
adds the essential element raising the crime to a higher category. constitutes treachery because said assault rendered her unable and
unprepared to defend herself. Appellant's act of throwing a stone at the
xxx xxx xxx victim from behind shows that he deliberately adopted a mode of attack
that would deprive the victim of an opportunity to defend herself.
We therefore reiterate that Sections 8 and 9 of Rule 110 merely require
that the Information allege, specify or enumerate the attendant As to the mitigating circumstance of voluntary surrender, we agree with
circumstances mentioned in the law to qualify the offense. These appellant that the same should be considered in his favor. The evidence
circumstances need not be preceded by the words shows that appellant surrendered to a person in authority a day after the
"aggravating/qualifying," "qualifying," or "qualified by" to be considered as incident. This fact was not contested by the prosecution. Notwithstanding
qualifying circumstances. It is sufficient that these circumstances be this, the presence of voluntary surrender as a mitigating circumstance will
specified in the Information to apprise the accused of the charges against not affect the penalty to be imposed upon appellant. Under Article 248 of
him to enable him to prepare fully for his defense, thus precluding the Revised Penal Code, as amended, the penalty for murder is reclusion
surprises during the trial. When the prosecution specifically alleges in the perpetua to death. Article 63 of the same code states that when the law
Information the circumstances mentioned in the law as qualifying the prescribes a penalty consisting of two indivisible penalties and the crime is
crime, and succeeds in proving them beyond reasonable doubt, the Court attended by a mitigating circumstance and no aggravating circumstance,
is constrained to impose the higher penalty mandated by law. This includes the lesser penalty shall be imposed.23 Consequently, the penalty of
the death penalty in proper cases. reclusion perpetua was correctly imposed by the trial court.

In the case at bar, the Information clearly passes the test as it specified Finally, the trial court correctly awarded civil indemnity in the amount of
treachery as an attending circumstance in the commission of the crime. P50,000.00 to the heirs of the victim. Civil indemnity is automatically
The allegation, although not preceded by the words imposed upon the accused without need of proof other than the fact of
"aggravating/qualifying," "qualifying," or "qualified by," is sufficient to the commission of murder or homicide.24 Likewise, the trial court was
apprise appellant of the charge against him as to enable him to prepare correct in not awarding actual, moral and exemplary damages because the
fully his defense. prosecution failed to present competent evidence to prove the same. To
justify an award of actual damages, there must be competent proof of the
The trial court correctly found the presence of the qualifying circumstance actual amount of loss.25 Further, in murder cases, moral damages cannot
of treachery in the instant case. There is treachery when the offender

55
be granted in the absence of proof therefor26 and exemplary damages Barangay Zarah, San Luis, Aurora. An angry Leon Lumasac suddenly arrived
without any aggravating circumstance.27 at the said place, holding a bolo in his right hand and looking for his
brother Miguel. Petitioner and Jose tried to pacify Leon. But when
WHEREFORE, in view of the foregoing, the decision of the Regional Trial petitioner approached Leon, the latter tried to hack him so he embraced
Court of Dumaguete City, Branch 34, in Criminal Case No. 12720 finding Leon and Jose took Leon’s bolo. Then, Leon and petitioner talked things
appellant Hever Paulino y Biyaya guilty beyond reasonable doubt of the out and later reconciled (pp. 2-4, TSN, November 16, 1998; pp. 2-4, TSN,
crime of murder and sentencing him to suffer the penalty of reclusion August 30, 2002; p. 2, TSN, April 21, 1998; p. 5, TSN, March 14, 2001; p. 2,
perpetua and ordering him to pay the heirs of the victim the sum of CA Decision).
P50,000.00 as civil indemnity is AFFIRMED in toto.
2. Subsequently, Leon walked out of Crisanto’s hut followed by petitioner.
Costs de oficio. Suddenly, about ten meters from the hut, petitioner stabbed Leon at the
back. When Leon turned around, petitioner continued stabbing him until
SO ORDERED. he fell to the ground. Then, petitioner ran towards the barangay road and
threw away the "kolonial" knife he used in stabbing Leon. The latter died
on the spot (pp. 2-6, TSN, November 22, 2000; p. 5, TSN, August 30, 2002;
G.R. No. 160341 October 19, 2004 p. 3, CA Decision).

EXEQUIEL SENOJA, petitioner, 3. Dr. Pura Deveza Valenzuela-Uy, San Luis Municipal Health Officer,
vs. examined the cadaver of Leon and found multiple lesions on his body and
PEOPLE OF THE PHILIPPINES, respondent. five fatal wounds on his chest. Dr. Uy issued a medico-legal report and
death certificate (Exhibits A and B, pp. 13-14, Records; pp. 3-5, TSN,
DECISION November 20, 1997).3

CALLEJO, SR., J.: On August 13, 1997, an Information was filed charging petitioner Exequiel
Senoja with homicide, the accusatory portion of which reads:
Before us is a petition for review on certiorari of the Decision1 of the Court
of Appeals (CA) in People v. Exequiel Senoja, docketed as CA-G.R. CR No. That on April 16, 1997 at around 11 o’clock in the morning in Barangay
26564, affirming with modification the Decision2 of the Regional Trial Zarah, San Luis, Aurora, Philippines, and within the jurisdiction of this
Court (RTC) of Baler, Aurora, Branch 96, in Criminal Case No. 2259, for Honorable Court, the said accused, did then and there, willfully, unlawfully,
homicide. and feloniously, with intent to kill, attack, assault, and use personal
violence upon the person of one Leon Lumasac by then and there stabbing
The Case For the People him with a bladed weapon locally known as "kolonyal" at the different
parts of his body thereby inflicting upon the latter mortal stab wounds
As culled by the Office of the Solicitor General (OSG) in its comment on the which were the direct and immediate cause of his death thereafter.
petition, the case stemmed from the following:
CONTRARY TO LAW.4
1. On April 16, 1997, petitioner Exequiel Senoja, Fidel Senoja, Jose Calica,
and Miguel Lumasac were drinking gin in the hut of Crisanto Reguyal in

56
The petitioner admitted killing the victim but invoked the affirmative 9. With Jose Calica’s bolo in him, Leon Lumasac left but only after leaving a
defense of self-defense. His version of the fatal incident is set forth in his threat that something will happen to Exequiel Senoja for siding with his
petition at bar: brother;

1. On April 16, 1997 at about 11 o’clock in the morning, Crisanto Reguyal, 10. After walking for about 10 meters away from the hut, Leon Lumasac
Fidel Senoja, Jose Calica, Miguel Lumasac, and Exequiel Senoja were in the turned around and saw Exequiel Senoja on his way home following him;
hut of Crisanto Reguyal in Barangay Zarah, San Luis, Aurora, drinking gin;
11. Leon Lumasac walked back to meet Exequiel Senoja and upon reaching
2. Leon Lumasac suddenly arrived holding a bolo and hacked the doorpost him, the former suddenly and treacherously hacked the latter at the left
of Crisanto’s hut, angrily demanding for his brother, Miguel Lumasac, side of his head and right thigh;
whom he suspected of drying up the ricefield he was plowing;
12. Unable to evade the treacherous attack by Leon Lumasac who
3. At this time, Miguel Lumasac was no longer inside the hut but fetching persisted in his criminal design, Exequiel Senoja drew his "colonial" knife
water; and stabbed Leon Lumasac in self-defense, inflicting upon him multiple
wounds which caused his death.5
4. To prevent Leon Lumasac from entering the hut, Exequiel Senoja
(appellant) and Jose Calica stood by the door while simultaneously trying On June 7, 2002, the trial court rendered judgment against the petitioner,
to pacify Leon Lumasac; finding him guilty beyond reasonable doubt of the crime charged. The fallo
of the decision reads:
5. Exequiel Senoja with a knife then went outside and tried to pacify Leon
Lumasac but the latter angered by the gestures of the former tried to hack WHEREFORE, premises considered, this Court finds accused Exequiel
Exequiel Senoja; Senoja GUILTY beyond reasonable doubt of the crime of Homicide for the
death of victim Leon Lumasac and hereby sentences him, applying Article
6. To avoid any injury, Exequiel Senoja embraced Leon which gave an 64, paragraph 1 of the Revised Penal Code and Section 1 of the
opportunity to disarm the duo. Jose Calica got the bolo of Leon and threw Indeterminate Sentence Law, (a) to suffer the penalty of twelve (12) years
it away while Fidel Senoja took the "colonial" knife of Exequiel; of prision mayor as minimum to seventeen (17) years and four (4) months
of reclusion temporal as maximum; (b) to pay the heirs of the victim the
7. Jose Calica and Fidel Senoja were able to pacify Leon Lumasac so they amount of Fifteen (sic) Thousand Pesos (Php 50,000.00) by way of civil
invited him to get inside the hut. Inside the hut, Leon Lumasac tried to box indemnity; and (c) to pay the costs.
Fidel Senoja for siding with his brother, Miguel, but was prevented by
Exequiel Senoja who held Leon’s hands; SO ORDERED.6

8. After a while, Leon Lumasac left but returned and angrily demanded for In due course, the petitioner appealed the decision to the CA which
his bolo. Jose Calica gave his own bolo with a sabbard to replace the bolo rendered judgment affirming, with modification, the decision of the RTC.
of Leon which he threw away; The petitioner now seeks relief from this Court, contending that:

57
The Honorable Court of Appeals failed to appreciate vital facts which, if stand, he was very evasive in answering the questions profounded by the
considered, would probably alter the result of this case on appeal finding prosecutors if he wanted the petitioner to be imprisoned. Miguel Lumasac
appellant’s plea of self-defense credible.7 could have told the real truth that Senoja murdered his brother.8

The petitioner faults the CA for its analysis of his testimony, as follows: The CA declared that, based on the evidence on record:

The injuries suffered by the petitioner at the left side of his head and right As seen from appellant’s testimony, Leon Lumasac’s actions can be divided
thigh was confirmed by Dr. Rodolfo Eligio in open court. The relative into two (2) phases: the first phase, when Leon entered Crisanto Reguyal’s
positions of the wounds clearly show that the drunken Leon Lumasac hut, up to the time he and the appellant reconciled. The second phase was
brandished and executed several hacking blows against Exequiel Senoja when Leon left to go home. In phase one where Leon entered Reguyal’s
before he was stabbed, neutralized and finished by the latter. It would be hut, Leon was the aggressor but his aggression was mostly directed to his
physically and highly improbable for the victim if he was treacherously hit brother Miguel who was not inside the hut anymore, although it was also
at the left buttock and as he turned around to face the petitioner, the partly directed at the appellant and even at Fidel Soneja (sic). But Leon’s
latter stabbed him successively and without let-up hitting him 9 times aggression against the appellant and Fidel Senoja ceased since, as
resulting in 9 fatal wounds. This did not give a chance to the victim to appellant testified, when Leon tried to box Fidel Senoja and he (appellant)
retaliate and inflict those wounds upon the aggressor. The victim used Mr. told Leon "Huwag po, Huwag po," Leon was pacified.
Jose Calica’s bolo which was secured by its scabbard. Unless earlier drawn,
it would be impossible for the victim to use it in defending himself from In the second phase, when Leon left the hut to go home, his aggression
the surprise attack and stabbing at a lightning fashion inflicting nine (9) had already ceased.
fatal wounds. Time element was the essence of this encounter which, as
narrated by the Honorable Court, after the assailant poked the victim at It is uncontroverted that the appellant followed the victim when the latter
the left side of the buttock with the use of the "colonial" knife he stabbed went out of the hut to go home. Appellant’s testimony is that when he was
him successively until he fell down dead. Under these circumstances, how two meters outside the hut, Leon turned around to face him saying "if
could Exequiel Senoja suffered (sic) those hacking (sic) wounds inflicted by you’re not only my godson" in a threatening way, then approached and
the victim using Calica’s bolo? In all indications, it was Leon Lumasac who hacked him (with Calica’s bolo) inflicting wounds on the left side of his
attacked his adversary first but lost in the duel considering that he was head and his right thigh, thus, he (appellant) attacked the victim with the
older than Exequiel Senoja and drunk. Clearly, therefore, it was Leon kolonial knife he was holding. That appellant suffered such injuries was
Lumasac who was the aggressor both in the first and second phases of the corroborated by the testimony of Dr. Rodolfo Eligio.9
incident and Exequiel Senoja was compelled to defend himself.
The petition is denied.
A closer scrutiny of the attending circumstances which resulted in this
stabbing incident shows that Exequiel Senoja has no compelling reasons to Paragraph 1, Article 11, of the Revised Penal Code provides:
kill his godfather. On that same occasion, Mr. Exequiel Senoja was with the
brother of the victim, Miguel Lumasac, which only shows that there was no ART. 11. Justifying circumstances. – The following do not incur any criminal
pre-existing grudge between these families. And still, what titillates our liability:
imagination is the fact that Miguel Lumasac, who was then with the group
drinking gin at the hut of Crisanto Reguyal did not clearly impute this crime 1. Anyone who acts in defense of his person or rights, provided that the
to petitioner. On the contrary, when he was presented to the witness following circumstances concur;

58
But then what is the standard to use to determine whether the person
First. Unlawful aggression; defending himself is confronted by a real and imminent peril to his life or
limb? We rule that the test should be: does the person invoking the
Second. Reasonable necessity of the means employed to prevent or repel defense believe, in due exercise of his reason, his life or limb is in danger?
it; After all, the rule of law founded on justice and reason: Actus no facit
remin, nisi mens sit rea. Hence, the guilt of the accused must depend upon
Third. Lack of sufficient provocation on the part of the person defending the circumstances as they reasonably appear to him.15
himself.
Unlawful aggression presupposes an actual, sudden, unexpected attack or
The affirmative defense of self-defense may be complete or incomplete. It imminent danger thereof, not merely a threatening or intimidating
is complete when all the three essential requisites are present; it is attitude.16 Hence, when an inceptual/unlawful aggression ceases to exist,
incomplete if only unlawful aggression on the part of the victim and any of the one making a defense has no right to kill or injure the former
the two essential requisites were present. In fine, unlawful aggression on aggressor.17 After the danger has passed, one is not justified in following
the part of the victim is a condition sine qua non to self-defense, complete up his adversary to take his life. The conflict for blood should be avoided if
or incomplete. Whether or not the accused acted in self-defense is a possible.18 An assault on his person, he cannot punish when the danger or
question of fact. Like alibi, the affirmative defense of self-defense is peril is over. When the danger is over, the right of self-defense ceases. His
inherently weak because, as experience has demonstrated, it is easy to right is defense, not retribution.19
fabricate and difficult to disprove.10
When the accused offers the affirmative defense of self-defense, he
The right of self-defense proceeds from necessity and limited by it. The thereby admits killing the victim or inflicting injuries on him. The burden of
right begins where necessity does, and ends where it ends.11 There is, evidence is shifted on the accused to prove, with clear and convincing
however, a perceptible difference between necessity and self-defense, evidence, that he killed the victim or inflicted injuries on him to defend
which is that, self-defense excuses the repulse of a wrong; necessity himself. The accused must rely on the strength of his own evidence and
justifies the invasion of a right. Hence, it is essential to self-defense that it not on the weakness of that of the prosecution because if the evidence of
should be a defense against a present unlawful attack.12 the prosecution were weak, the accused can no longer be acquitted.20

Life can be taken under the plea of necessity, when necessary for the We agree with the CA that, as gleaned, even from the testimony of the
preservation of the life on the party setting up the plea. Self-defense is an petitioner, there were two separate but interrelated incidents that
act to save life; hence, it is right and not a crime.13 There is a need for one, culminated in the petitioner’s stabbing and killing of the victim Leon
indeed, for it is a natural right for one to defend oneself when confronted Lumasac. The first was the arrival of the victim, who was armed with a
by an unlawful aggression by another. It is a settled rule that to constitute bolo, in the hut of Crisanto Reguyal, looking for his brother Miguel
aggression, the person attacked must be confronted by a real threat on his Lumasac, whom he was angry at. The victim hacked the wall of the house
life and limb; and the peril sought to be avoided is imminent and actual, in anger. The petitioner, who was armed with a knife, tried to pacify the
not merely imaginary. Absent such an actual or imminent peril to one’s life victim. The victim attempted to hack the petitioner; nevertheless, the
or limb, there is nothing to repel; there is no necessity to take the life or latter embraced and managed to pacify the victim. Forthwith, Jose Calica
inflict injuries on another.14 took the bolo of the victim and threw it away. For his part, Fidel Senoja
took the petitioner’s knife. As it was, the victim was already pacified. He

59
and the petitioner were already reconciled.21 Fidel even gave back the
knife to the petitioner. FINDINGS: The victim lies in supine position, stocky in built; his clothing
completely soaked with fresh blood.
The second incident took place when the victim demanded that Calica
return his bolo as he wanted to go home already. Because he had thrown CHEST:
away the victim’s bolo, Calica was, thus, impelled to give his own. The
victim then warned the petitioner three times, "May mangyayari sa iyo, (+) stab wound 2 inches below the L nipple 4 inches deep running medially
kung hindi ngayon, bukas," and left the hut. When the victim had already to the anterior median line.
gone about ten meters from the hut, the petitioner followed the victim.
The victim turned around and told the petitioner, "Kung hindi lang kita (+) stab wound 2 inches to the L of the anterior median line at the level of
inaanak." The victim then hacked the petitioner, hitting the latter on the the L nipple 5½ inches deep running posteriorly.
left side of his head and thigh. Believing that the victim would attack him
anew, the petitioner stabbed the victim frontally several times.22 He also (+) stab wound 1 inch above the L nipple 4 inches deep running
stabbed the victim on the left buttock. The petitioner could not recall how inferomedially.
many times he stabbed the victim and what parts of the latter’s body had
been hit. (+) stab wound 2 inches to the left of the anterior median line 4 inches
deep running inferoposteriorly.
The first episode inside the hut had been completed with the protagonist,
the victim, and the petitioner reconciled. The second episode commenced (+) stab wound 1 inch to the right of the anterior median line at the level of
inside the hut and continued outside, and ended with the petitioner the second right intercostal space 0.5 inch in depth.
stabbing the victim several times.
(+) stab wound ½ inch to the right of the anterior median line at the level
The trial and the appellate courts gave no credence and probative weight of the xyphoid process 3½ inches deep running superiorly.
to the testimony of the petitioner. So do we.
(+) stab wound at the level of the L nipple L anterior axillary line 4½ inches
First. The findings of fact of the trial court and its conclusions based on the in depth running superiorly to the left armpit.
said findings are accorded by this Court high respect, if not conclusive
effect, especially when affirmed by the CA. This is because of the unique (+) hack wound at the left armpit 3 inches long injuring the muscles and
advantage of the trial court of having been able to observe, at close range, the blood vessels.
the demeanor and behavior of the witnesses as they testify. This rule,
however, is inapplicable if the trial court ignored, overlooked, or (+) lacerated wound on the left palm almost cutting off the proximal
misinterpreted cogent facts and circumstances which, if considered, will phalanx of the left thumb.23
alter or reverse the outcome of the case. We have reviewed the records
and found no justification for a reversal of the findings of the trial court Five of the wounds of the victim on his chest were fatal.24 The victim also
and its conclusions based thereon. sustained a stab wound on the left buttock. According to the doctor, it was
unlikely for the victim to have survived even with medical attention.25
Second. The victim sustained six hack wounds and one lacerated wound. After the doctor made her initial autopsy and submitted her report, she
This is gleaned from the Necropsy Report of Dr. Pura Uy, to wit:

60
noted that the victim sustained a stab wound of about two inches deep at
the left buttock, thus: Considering the number, nature and location of the wounds sustained by
the victim, the petitioner’s plea of self-defense is incredible.27 It bears
Q In this medico-legal report, you indicated that the cause of death of the stressing that the petitioner resolutely denied stabbing the victim at the
victim is "Hypovolemic shock 2º to multiple stab wounds, chest." Will you buttock and insisted that he stabbed the victim frontally:
please explain this?
Q As a matter of fact, he sustained an injury at the back of his buttock
A "Ito pong nakalagay o dahilan ng pagkamatay ng biktima sa sobrang (pigi) and when he faced you, you stabbed him again several times?
natapon na dugo gawa ng maraming saksak na tinamo ng biktima sa
kanyang dibdib ang nagbigay ng daan sa kanyang kamatayan." A That is not true, Sir.

Q Will you please tell us, Dr. Uy, if there is one amont (sic) these lesions Q But you are admitting that you stabbed him several times frontally?
that is located at the back of the victim?
A Yes, Sir, because I am (sic) defending myself.
A I forgot to tell you that a day after I submitted the report, the funeral
parlor which attended the victim has called my attention because of the Q You also stabbed him in his left armpit?
wound at the back of the victim and I attended immediately to see these
lesions at the home of the victim. I reviewed for (sic) these lesions and I A I don’t know, Sir.
saw one lesion located at the left buttock of the victim.
Q But you knew that you stabbed him in his buttock?
Q What is the nature of the injury?
A No, Sir.
A Stab wound, about two inches deep.
Q After stabbing him several times and felt that he was already dead, you
Q By the nature of the lesion, is it not fatal? already left the place?

A It is not that fatal. A Yes, Sir.28

Q In your expert opinion, by the nature of the wound sustained by the The testimony of the petitioner is belied by the physical evidence on
victim, what could have been the relative position of the victim in relation record. The settled rule is that physical evidence is evidence of the highest
to his assailant? order; it speaks more eloquently than a hundred witnesses.29

A Based on my examination, I think the victim and the assailant were Third. The petitioner threw away his knife and failed to surrender it to the
facing each other. "Masyadong malapit." policemen; neither did he inform the policemen that he killed the victim in
self-defense. The petitioner’s claim that the victim was armed with a bolo
Q How many fatal wounds have (sic) the victim sustained in his chest? is hard to believe because he even failed to surrender the bolo.30

A Five fatal stab wounds on the chest.26

61
Fourth. The petitioner’s version of the events that transpired immediately Q So you are now changing your answer, you actually saw Exequiel Senoja
before he stabbed the victim does not inspire belief. He claims that when stabbing Leon Lumasac several times, after he was hack[ed] by Leon
he saw the victim emerged from the hut, the victim walked towards the Lumasac?
petitioner saying, "Kung hindi lang kita inaanak," but hit and hacked the
latter on the left buttock.31 As gleaned from his statement, the victim was A I did not see that Exequiel Senoja stab Leon Lumasac, Sir.33
not disposed, much less determined to assault the petitioner. And yet, the
petitioner insists that without much ado, the victim, nevertheless, hit him Seventh. The bare fact that the petitioner sustained a five-centimeter
on the head and on the thigh with his bolo. wound at the left temporal region and an eight-centimeter hack wound on
the anterior portion of his right thigh does not preclude the fact that he
Fifth. According to the petitioner, the victim warned him three times was the unlawful aggressor; nor buttress his plea that he acted in self-
before leaving the hut, "May mangyayari sa iyo, kung hindi ngayon, bukas." defense. The petitioner failed to inform the doctor that he sustained the
The petitioner testified that shortly before the victim uttered these words, wounds to defend himself. Moreover, the doctor testified that the wounds
the latter even touched the blade of the bolo to see if it was sharp.32 The the petitioner sustained were slight:
petitioner was, thus, aware of the peril to his life if he followed the victim.
The petitioner, nevertheless, followed the victim and left the hut after the Pros. Ronquillo:
victim had gone barely ten meters. He should have waited until after the
victim had already gone far from the hut before going home to avoid any Q Does (sic) the wound at the right anterior thigh vertical, diagonal or
untoward incident. what?

Sixth. The petitioner presented his brother-in-law Ruben Dulay to A I did not place it, Sir.
corroborate his testimony that the victim stabbed the petitioner and that
this impelled the latter to stab the former. But the testimony of Dulay Q So, you don’t know?
contradicted the testimony of the petitioner:
A It is vertical, Sir, but I did not place it on the record. And the hack wound
Q When Exequiel Senoja stabbed Leon Lumasac several times, he on the temporal region is oblique.
immediately fell to the ground and was fatal[ly] wounded, immediately
died because of several stabs and lay (sic) down? Q Were the injuries only slight?

A I did not see that scene because Exequiel Senoja stabbed Leon Lumasac, I A Yes, Sir.
turn (sic) back upon seeing Leon Lumasac hack Exequiel Senoja, I turn (sic)
back because I was afraid then. When I turn (sic) back I saw them Q So, it is (sic) possible that these injuries were self-inflicted?
embracing each other, Sir.
A Probably, Sir, but I cannot comment on that.
Q And that is the time when Exequiel Senoja stabbed Leon Lumasac?
Q You said that the patient was under the influence of alcohol? Would you
A I did not see the stabbing. What I only saw was that they were embracing say that the patient was then so drunk at that time?
each other, Sir.
A When I saw him at that time, he was moderately drunk.34

62
thigh is belied by his testimony on direct examination that the victim
The doctor gave the petitioner due medications for 30 minutes and the stabbed him while still inside the hut of Reguyal:
petitioner then went home:
Q How did it happen that you were able to kill the victim in this case Mr.
Q How did it happen that you were able to kill the victim in this case Mr. Leon Lumasac?
Leon Lumasac?
A Because when I went out, he hacked me, Sir.
A Because when I went out, he hacked me, Sir.
Q Were you hit by the hack made by the victim in this case?
Q Were you hit by the hack made by the victim in this case?
A Yes, Sir.
A Yes, Sir.
Q Where?
Q Where?
A Here, Sir.
A Here, Sir.
And Witness is pointing to his left head.
And Witness is pointing to his left head.
Q Where else?
Q Where else?
A (His) right thigh.
A (His) right thigh.
Q In what place did this incident happen?
Q In what place did this incident happen?
A In the hut of Tata Santos, Sir.
A In the hut of Tata Santos, Sir.
Q What is his real name?
Q What is his real name?
A Crisanto Reguyal, Sir.36
A Crisanto Reguyal, Sir.35
But then, after the said incident, the petitioner and the victim had
If, as claimed by the petitioner, the victim stabbed him frontally, it is reconciled. We agree with the following findings of the appellate court:
incredible that the victim was able to hack the anterior part of his right
thigh. The question that must be resolved is whether or not the victim was the
unlawful aggressor as the appellant’s testimony pictures him to be. The
Eighth. The testimony of the petitioner that the victim stabbed him outside Court rules in the negative. The victim had already left the hut and was ten
the hut on the left side of his head and the anterior portion of his right (10) meters away from it. There is no showing that the victim, who was
drunk, was aware that appellant was following him, or that the appellant

63
called out to him so that he (the victim) had to turn around and notice him. This is an automatic review of the decision1 dated July 30, 1999 of the
It is clear that at that point in time, the victim was simply walking toward Court of Appeals (CA) in CA-G.R. CR No. 21860 finding accused-appellant
his home; he had stopped being an aggressor. It was the appellant who, Victoriano M. Abesamis guilty of murder and meting out the penalty of
smarting from the earlier incident in the hut where Leon told him "hindi ka reclusion perpetua to him.
tatagal, sa loob ng tatlong araw mayroong mangyayari sa iyo, kung hindi
ngayon, bukas" repeated three times, wanted a confrontation. Appellant This is a story of a game of billiards with a tragic ending.
stabbed or poked the victim in the left buttock resulting in the non-fatal
wound, and when the latter turned around, successively stabbed and At around 6:00 p.m. of September 18, 1994, accused-appellant and his
hacked the victim in the armpit and chest until he fell. In all, the victim brother, Rodel Abesamis, were in the billiard hall located at Cruz corner
suffered nine (9) wounds. Pepin Streets in Sampaloc, Manila. Accused-appellant played a game of
billiards with Rogelio Mercado, Jr. called "rotation" where the first player
It is the well-considered finding of this Court that while Leon Lumasac had who garners 61 points wins the game. A ₱40 bet was on the line. Ramon
ceased being the aggressor after he left the hut to go home, accused Villo stood as "spotter" for them.
Exequiel Senoja was now the unlawful aggressor in this second phase of
their confrontation. It bears mentioning that appellant contradicted Accused-appellant was ahead with 59 points when he pocketed the
himself with respect for (sic) the reason why he left the hut. First, it was to number 3 ball. Ramon erroneously scored it for Rogelio. Aggrieved,
pacify Leon and the second reason was that he was going home. accused-appellant protested. Matters got worse when Rogelio suddenly
rearranged the balls on the table and the game turned into a shouting
As for appellant’s injuries, it is clear that they were sustained in the course match between Rogelio and accused-appellant. Ramon tried to mediate
of the victim’s attempt to defend himself as shown by the lacerated wound but accused-appellant vented his ire on him, sparking a heated argument.
on the victim’s left palm, a defensive wound.37
Ramon decided to leave and proceeded to go out of the hall. However,
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed Rodel, accused-appellant’s brother, pursued him and caught up with him in
Decision of the Court of Appeals is AFFIRMED. front of Andok’s lechon manok store a few meters away. A fistfight
between the two ensued. While the two were trading blows, accused-
SO ORDERED. appellant ran to a Ford Fiera2 parked nearby and got a foot-long butcher’s
knife. He then rushed to where Ramon and Rodel were fighting. He
stabbed Ramon in the back. The victim turned around to face accused-
G.R. No. 140985 August 28, 2007 appellant but Rodel grabbed his hands and held them from behind.
Accused-appellant then stabbed Ramon two more times, one in the upper
PEOPLE OF THE PHILIPPINES, Appellee, right portion of the chest and another in the lower left portion of the
vs. chest. Thereafter, accused-appellant and Rodel boarded the Ford Fiera and
VICTORIANO M. ABESAMIS, Appellant. drove away.

DECISION Greatly weakened by the mortal wounds inflicted on him, Ramon managed
to take a few steps before slumping on the pavement. His mother3 and
CORONA, J.: brother4 soon arrived. He was brought to the University of Sto. Tomas
Hospital but his wounds were fatal and he was declared dead on arrival.

64
That on or about September 18, 1994, in the City of Manila, Philippines,
Dr. Manuel Lagonera5 performed an autopsy on Ramon’s cadaver. His the said accused, conspiring and confederating…and helping one another,
report stated: did then and there willfully, unlawfully and feloniously with intent to kill
and with treachery and evident premeditation, attack, assault and use
EXTERNAL FINDINGS: personal violence upon one RAMON VILLO y MANGALINDAN… thrice with
a butcher’s knife, hitting him on the different parts of his body thereby
1. Stab wound, right anterior thorax, 51 inches from heel, 5 cms. from inflicting upon him mortal stab wounds which were the direct and
anterior midline, measuring 20x6 cms., directed slightly downwards immediate cause of his death thereafter.8
backwards towards right lateral, transecting the sternum at the level of 1st
intercostal space, incising the upper lobe of the right lung, transecting the However, accused-appellant and his brother remained at-large. Thus, the
right sub-clavian artery and ascending aorta. Depth – 11 cms. case was temporarily archived. It was reactivated when accused-appellant
was arrested on March 26, 1996.
2. Stab wound, left lower anterior thorax, 43 ½ inches from heel, 17 cms.
from anterior midline, measuring 5x2 cms., directed upwards, backwards Accused-appellant pleaded not guilty when arraigned. During the trial, he
towards midline, lacerating the diaphragm, and spleen. Depth – 13 cms. admitted stabbing Ramon with a butcher’s knife but claimed that he did so
only to defend himself. He claimed that when he questioned the victim
3. Stab wound, left lower posterior thorax, 41 inches from heel[,] 10 cms. why ball number 3 was credited to Rogelio, he suddenly cussed him and
from posterior midline, incising the lower lobe of the left lung. Depth – 10 threatened to kill him. When he tried to leave the billiards hall, Ramon
cms. blocked his way and tried to stab him with a balisong. He evaded the thrust
and ran outside to get a butcher’s knife from the Ford Fiera. Ramon
INTERNAL FINDINGS pursued him but he stood his ground. The victim tried to stab him again,
this time hitting him in the left arm. He fought back and stabbed Ramon
1. Injuries to organs and tissues as indicated in the internal extensions of several times.
the stab wounds, with massive bleeding in the thoracic and abdominal
cavities. He then boarded the Ford Fiera and drove towards España Street in
Manila. He encountered heavy traffic along the way and abandoned the
2. About one glassful of partially digested meaty materials with slight vehicle somewhere in Forbes Street, Manila. He wanted to surrender to
alcoholic odor was recovered from the stomach. the police but was advised by his relatives not to do so because Ramon’s
relatives might kill him. He then went to his hometown in Calamba,
CAUSE OF DEATH Laguna. He managed to elude arrest until March 26, 1996.

STAB WOUNDS.6 On April 1, 1998, the trial court rendered its decision.9 It ruled that, while
it was established that accused-appellant killed Ramon, the prosecution
An information7 for murder was filed against the brothers accused- failed to prove the existence of either evident premeditation or treachery.
appellant and Rodel in the Regional Trial Court (RTC) of Manila, Branch 41. Thus, the trial court found accused-appellant guilty of homicide and
It read: sentenced him to suffer the penalty of eight years and one day of prision
mayor as minimum to fourteen years, eight months and one day of

65
reclusion temporal as maximum. It also ordered him to pay the heirs of the Accused-appellant faults the appellate court for (1) disregarding his claim
victim ₱50,000 as indemnity and ₱100,000 "for other damages": that he was only acting in self-defense when he inflicted the mortal
wounds on Ramon and (2) finding that the killing was attended by
WHEREFORE, judgment is hereby rendered finding the accused guilty of treachery.
Homicide and[,] with the application of the Indeterminate Sentence Law[,]
sentencing him to suffer the penalty of eight (8) years and one (1) day of In a letter dated June 12, 2007, Julio Arciaga, assistant director for prisons
prision mayor to fourteen (14) years[,] eight (8) months and one (1) day of and security of the Bureau of Corrections, informed the Court that
reclusion temporal, as minimum and maximum respectively and to pay the accused-appellant was granted parole by the Board of Pardons and Parole
heirs of the victim the amount of ₱50,000.00 for the latter’s life and (Board) on March 5, 2003 and released from the custody of the Bureau of
₱100,000.00 for other damages, with legal interest from the time this Corrections on March 20, 2003.13
decision has become final until the same is fully paid.
We are thus confronted with the following issues:
SO ORDERED.10
1. whether the grant of parole rendered this case moot;
On appeal, accused-appellant’s conviction was affirmed with modification
by the CA.11 It ruled that the evidence sufficiently established that Ramon 2. whether accused-appellant only acted in self-defense and
was killed with treachery: he was first stabbed in the back while he was
engaged in a fistfight with Rodel, then twice in front when he turned 3. whether the victim was killed with treachery.
around to face accused-appellant, with his hands held behind him by
Rodel. He was completely unaware and caught off-guard when he suffered The appeal has no merit.
the first stab. He was defenseless when he was stabbed again. Thus, the
appellate court found accused-appellant guilty of murder, sentenced him Accused-Appellant’s Release on Parole Did Not Render the Case Moot
to reclusion perpetua and certified the case to this Court for review:
The appeal was not mooted by accused-appellant’s release on parole. His
IN THE LIGHT OF ALL THE FOREGOING, the Decision of the Court a quo is release only meant that, according to the Board, he had already served the
hereby AFFIRMED with the modification that the Appellant is hereby found minimum penalty imposed on him14 and that he was "fitted by his training
guilty of "Murder" qualified by treachery defined and penalized by Article for release, that there [was] reasonable probability that [he would] live
248 of the Revised Penal Code and is hereby meted the penalty of and remain at liberty without violating the law and that such release
"RECLUSION PERPETUA." However, considering the penalty imposed on [would] not be incompatible with the welfare of society."15 Should he
the Appellant, the Court hereby certifies this case to the Supreme Court for violate the conditions of his parole, accused-appellant may be ordered
appropriate review. rearrested, to serve the remaining unexpired portion of the maximum
sentence.16
The Clerk of Court of this Court is hereby ordered to elevate all records of
this case, including documentary and testimonial evidence, to the Supreme Parole refers to the conditional release of an offender from a correctional
Court for appropriate review. institution after he serves the minimum term of his prison sentence.17 The
grant thereof does not extinguish the criminal liability of the offender.
SO ORDERED.12 Parole is not one of the modes of totally extinguishing criminal liability

66
under Article 89 of the Revised Penal Code.18 Inclusio unius est exclusio
alterius. He who admits killing or fatally injuring another in the name of self-
defense bears the burden of proving: (a) unlawful aggression on the part of
Similarly, accused-appellant’s release on parole did not extinguish his civil his victim; (b) reasonable necessity of the means employed to prevent or
liability.19 Article 113 of the Revised Penal Code provides: repel it and (c) lack of sufficient provocation on his part. By invoking self-
defense, the burden is placed on the accused to prove the elements
ART. 113. Obligation to satisfy civil liability. – Except in case of extinction of thereof clearly and convincingly.22
his civil liability as provided in the next preceding article,20 the offender
shall continue to be obliged to satisfy the civil liability resulting from the While all three elements must concur, self-defense relies first and
crime committed by him, notwithstanding the fact that he has served his foremost on proof of unlawful aggression on the part of the victim.23 If no
sentence consisting of deprivation of liberty or other rights, or has not unlawful aggression is proved, no self-defense may be successfully
been required to serve the same by reason of amnesty, pardon pleaded.24 Here, both the trial and appellate courts found that there was
commutation of sentence or any other reason. (emphasis supplied) no unlawful aggression on Ramon’s part and that, in fact, it was accused-
appellant who was the unlawful aggressor. Thus, accused-appellant’s claim
of self-defense cannot stand.
Thus, accused-appellant’s civil liability subsists despite his release on
parole. The nature, number and location of the wounds sustained by the victim
disprove accused-appellant’s claim of self-defense.25 On this account, the
Moreover, the grant of parole would be improvident if the CA decision appellate court correctly ruled that the accused-appellant’s version that he
finding accused-appellant guilty of murder and sentencing him to suffer fought face to face with the victim was inconsistent with the fatal stab
the penalty of reclusion perpetua were to be affirmed by this Court. In wound at the victim’s back. Moreover, the wounds inflicted by accused-
such a case, the determination of the Board that accused-appellant would appellant on the victim indicated a determined effort to kill and not merely
have already served the minimum penalty imposed on him would turn out to defend.26
to be erroneous. Worse, in basing its determination of accused-appellant’s
eligibility for parole on the penalty imposed in the RTC decision, the Board Accused-appellant’s failure to surrender, his escape to Laguna and hiding
effectively ignored the decision of the CA. for more than a year until his eventual capture and arrest also contradicted
his claim that he acted in self-defense. Flight is indicative of guilt.
Furthermore, the Board violated its own rules disqualifying from parole
those convicted of an offense punished with reclusion perpetua.21 Thus, Furthermore, whether or not accused-appellant acted in self-defense is a
the Board should be warned in no uncertain terms for acting ultra vires, question of fact. It is a matter that is properly addressed to the trial court,
carelessly disregarding the CA decision and improvidently granting parole not to this Court. In fact, the trial and appellate courts amply evaluated
to accused-appellant. and carefully considered the issue. Their identical conclusions were based
on competent evidence. There is therefore no reason to disturb their
We will now proceed to consider the merits of the appeal. findings.

Accused-Appellant Did Treachery Attended the

Not Act In Self-Defense Killing of the Victim

67
civil liability of accused-appellant. Moreover, an appeal in a criminal
According to the CA, Ramon was defenseless when accused-appellant proceeding opens the entire case for review.31 This includes a review of
stabbed him in the back. And he was completely at the mercy of accused- the indemnity and damages involved.32
appellant when he was repeatedly stabbed in front while Rodel was
holding his hands from behind. Thus, the CA ruled that Ramon was killed The award of actual damages is proper only if the actual amount of loss
with treachery. was proven with a reasonable degree of certainty.33 It should be
supported by receipts.34 While the victim’s mother, Lolita Villo, testified
We agree. that she incurred expenses in connection with the victim’s death (e.g.,
funeral and burial expenses), she failed to substantiate her claim. Thus,
Accused-appellant perpetrated the killing in such a manner that there was actual or compensatory damages cannot be awarded.
absolutely no risk to himself arising from the defense which the victim
might have made. Ramon was unarmed, had his back turned to accused- Current jurisprudence, however, allows the grant of ₱25,000 as temperate
appellant and was fighting with another person when stabbed in different damages when it appears that the heirs of the victim suffered pecuniary
parts of the body. He was caught totally by surprise and did not even have loss but the award thereof cannot be established with certainty.35 Thus,
a chinaman’s chance to survive the attack. As we ruled in People v. Lolita may be given ₱25,000 as temperate damages. She is also entitled to
Fabrigas, Jr.:27 an award of ₱50,000 moral damages for the mental anguish and distress
she suffered for the death of her son.36 Exemplary damages are not
Treachery is present where the assailant stabbed the victim while the warranted because no aggravating circumstance attended the crime.
latter was grappling with another thus, rendering him practically helpless
and unable to put up any defense. (emphasis supplied) Accordingly, the decision dated July 30, 1999 of the Court of Appeals in CA-
G.R. CR No. 21860 finding accused-appellant Victoriano M. Abesamis guilty
The Award of "Other of murder, sentencing him to suffer the penalty of reclusion perpetua and
affirming the trial court’s order for him to pay the heirs of Ramon Villo
Damages" Was Improper ₱50,000 as civil indemnity is hereby AFFIRMED with the modification that
he is ordered to pay said heirs ₱50,000 as moral damages and ₱25,000 as
The trial court correctly awarded ₱50,000 to the heirs of the victim as civil temperate damages. Accused-appellant is further ordered to pay the costs
indemnity for his death.lavvphil This did not need any evidence or proof of of suit.
damages. However, the award of ₱100,000 "for other damages" was
wrong. The grant of parole to accused-appellant by the Board of Pardons and
Parole is hereby declared NULL and VOID for lack of legal and factual basis.
Under the law, there are various kinds of damages.28 They differ as to the Accused-appellant is hereby ordered to be REARRESTED immediately to
necessity of proof of pecuniary loss, the purpose of and grounds for their forthwith serve the remaining period of his sentence.
award and the need for stipulation. Thus, the rule is that, in every case,
trial courts must specify the award of each item of damages and make a The members of the Board of Pardons and Parole are hereby WARNED to
finding thereon in the body of the decision.29 never again disregard its rules and the decision of the Court of Appeals.

Nonetheless, every person criminally liable for a felony is also civilly SO ORDERED.
liable.30 Hence, this Court may go through the records to determine the

68
G.R. No. 157201 September 14, 2007 After petitioner and Nahom had left, Carmen and Nilda went to the house
of Adolfo Malinao to wait for Serafin. When Serafin arrived, Carmen told
NEMROD GOTIS, Petitioner, him what had happened at the plantation and prevented him from going
vs. home. Serafin, however, disregarded Carmen’s warning and insisted on
PEOPLE OF THE PHILIPPINES, Respondent. going home.7

DECISION On their way home, Serafin and his family had to pass by Nahom’s house.
Upon reaching the gate of Nahom’s house, Serafin called for Nahom and
VELASCO, JR., J.: asked him to come out. When Nahom heard the shouts of Serafin, he
immediately called petitioner for help. Petitioner came over and advised
In order to determine the sufficiency of a provocation for the purpose of Serafin to go home, but he refused to leave. Instead, Serafin attempted to
mitigating a crime, one must look into the act constituting the provocation, hack petitioner and tried to enter the gate of Nahom’s house.8 Thereafter,
the social standing of the person provoked, and the place and time when Nahom struck Serafin on the head with a bolo.9 Meanwhile, petitioner
the provocation is made.1 In the present case, a finding that the act of the entered his brother’s house to look for a bolo.10
victim did not constitute unlawful aggression does not automatically
negate the attendant circumstance of sufficient provocation. After being hit, Serafin ran away. Petitioner, however, pursued him, and hit
him several times on the back and arm.11 Carmen, who was then following
The Case Serafin, saw the incident and cried for help. Serafin’s brother, Jose,
responded, but before he could extend any help, petitioner poked a
This Petition for Review on Certiorari2 under Rule 45 seeks the annulment Batangas knife on his neck. Jose, however, was able to parry the blow with
of the August 30, 2002 Decision3 and February 12, 2003 Resolution4 of the his arm. Thereafter, petitioner ran away.12
Court of Appeals (CA) in CA-G.R. CR No. 22536 entitled People of the
Philippines v. Nemrod Gotis. The assailed Decision affirmed the October Serafin was brought to a hospital in Irosin, Sorsogon, but he eventually
29, 1997 Decision5 of the Irosin, Sorsogon Regional Trial Court (RTC), died during treatment.
Branch 55, convicting petitioner Nemrod of the crime of homicide. The
assailed Resolution denied petitioner’s Motion for Reconsideration. On January 16, 1991, the following Information was submitted before the
trial court:
The Facts
That on or about the 21st day of October, 1990 at about [seven] o’clock in
On October 21, 1990, at around six o’clock in the evening, petitioner, the evening at Barangay Bonga, Municipality of Bulan, Province of
Nemrod Gotis, and his brother, Nahom, arrived at Eddie Bautista’s coconut Sorsogon, Philippines and within the jurisdiction of this Honorable Court,
plantation in Barangay Bonga, Bulan, Sorsogon looking for Serafin Gotis. the above-named accused conspiring, confederating and mutually helping
Serafin’s wife, Carmen, and daughter, Nilda, were then at the plantation. one another, armed with bolos and with intent to kill, did then and there,
Petitioner and Nahom, who were both armed with bolos, angrily willfully, unlawfully and feloniously, with treachery and evident
approached Carmen and Nilda and asked them where Serafin was. Not premeditation, attack, assault and hack one Serafin Gotis in the different
being able to find Serafin, Nahom pointed his bolo at Nilda and said, "We parts of his body which caused his instantaneous death, to the damage and
will kill your father!"6 prejudice of his legal heirs.13

69
Petitioner admitted having killed Serafin. He, however, interposed the that the unlawful aggression against petitioner’s life had already ceased
justifying circumstance of self-defense. He claimed that he hit Serafin when petitioner went inside his brother’s house and the victim ran away.
merely to defend himself against the latter’s attack. Thus, "[petitioner’s] coming out of the house with a bolo is indicative of a
determination to kill Serafin Gotis and not merely to defend himself."15
After trial, the RTC rendered its Decision, the dispositive portion of which
reads: However, the CA ruled that petitioner is not entitled to the mitigating
circumstance of sufficient provocation because "this circumstance is
WHEREFORE, the Court renders judgment in Crim. Case No. 676 finding the anchored on [petitioner’s] plea for self-defense which stands discredited
accused Nahom Gotis and Nemrod Gotis guilty beyond reasonable doubt by the trial court x x x."16
of the crime of Homicide as defined in Article 249, of the Revised Penal
Code. With respect to Nahom Gotis[,] the mitigating circumstance of Also, on the award of damages, the CA granted actual damages in the
incomplete self-defense and defense of relative should be appreciated in amount of PhP 3,000, observing that "expenses for the embalmment of
his favor. Applying the provisions of Article 69 of the Revised Penal Code[,] the deceased x x x [were] duly documented by a receipt."17
the court hereby sentences the accused Nahom Gotis to suffer
imprisonment of an indeterminate [s]entence of six (6) months of arresto The fallo of the August 30, 2002 Decision of the CA reads:
mayor maximum as the minimum to six (6) years of prision correccional
maximum as the maximum. The accused Nemrod Gotis is to be credited WHEREFORE, the Decision finding [petitioner] Nemrod Gotis guilty of
the mitigating circumstances of sufficient provocation and voluntary Homicide is AFFIRMED with the modification that he is hereby sentenced
surrender and applying the provisions of Article 64 (5) of the Revised Penal to suffer a prison term of eight (8) years of prision mayor, as minimum, to
Code[,] the said accused is to suffer imprisonment for an [i]ndeterminate fourteen (14) years and eight (8) months of reclusion temporal, as
[s]entence of [f]our (4) years [and] two (2) months of prision correccional maximum and to pay the heirs of Serafin Gotis the amount of P3,000.00 as
medium as the minimum to [t]en (10) years of prision mayor medium as actual damages in addition to the P50,000.00 [as] civil indemnity awarded
the maximum. The accused Nahom Gotis shall jointly and severally by the trial court.18
indemnify the heirs of Serafin Gotis the amount of P50,000.00 and to pay
the cost. Hence, we have this petition.

xxxx The Issue

SO ORDERED.14 Whether or not the Honorable Court of Appeals gravely erred in affirming
with modification the Decision of the Regional Trial Court disregarding
Nahom applied for probation which was granted by the trial court. petitioner’s plea of self-defense.19
Petitioner, on the other hand, appealed to the CA.
The Court’s Ruling
The Ruling of the Court of Appeals
The petition is partly meritorious.
The appellate court held that petitioner failed to satisfactorily prove the
elements of self-defense. Particularly, the CA held that unlawful aggression Factual Questions Not Reviewable
did not exist at the time that petitioner attacked the victim. It observed

70
The present petition was brought under Rule 45 of the Rules of Court. It is
a settled doctrine that petitions of this nature should only raise questions Sufficient Provocation as a Mitigating Circumstance
of law.20 Moreover, the general rule is that questions of fact are not
reviewable, subject only to certain exceptions as when the judgment is not The trial court appreciated the mitigating circumstance of sufficient
supported by sufficient evidence or is premised on a misapprehension of provocation. However, the appellate court reversed the trial court’s ruling
facts.21 explaining that sufficient provocation is not compatible with the finding
that petitioner did not act in self-defense. By faulting petitioner for
In the present case, petitioner maintains that the CA failed to appreciate inflicting injuries on the victim after the latter had run away, the CA likened
that he had acted in self-defense, and thus, he should not be held liable for sufficient provocation with unlawful aggression. The CA erred.
Serafin’s death. However, petitioner failed to show that the CA’s findings
of fact should be disregarded. The factual findings are borne out by the As an element of self-defense, unlawful aggression presupposes an actual,
records and are supported by substantial evidence. sudden, and unexpected attack, or imminent danger of the attack, from
the victim.25 On the other hand, as a mitigating circumstance, sufficient
Article 11(1) of the Revised Penal Code provides the elements of self- provocation is any unjust or improper conduct or act of the victim
defense as a justifying circumstance, thus: adequate enough to excite a person to commit a wrong, which is
accordingly proportionate in gravity.26 Notably, while an act cannot be
1. Anyone who acts in defense of his person or rights, provided that the considered an unlawful aggression for the purpose of self-defense, the
following circumstances concur: same act can be considered as sufficient provocation for the purpose of
mitigating the crime.
First. Unlawful Aggression;
In Pepito v. CA,27 the victim, before the killing, had challenged the
Second. Reasonable necessity of the means employed to prevent or repel accused’s family with a bolo and an "indian pana." After this attack, the
it; victim went home. The accused thereafter grabbed a bolo, pursued the
victim, and killed him. The Court did not consider the victim’s act as an
Third. Lack of sufficient provocation on the part of the person defending unlawful aggression for the purpose of self-defense. However, such was
himself. considered a provocation sufficient to mitigate the crime. People v.
Ubaldo28 had likewise disregarded the violent act of the victim before the
Unlawful aggression by the victim is a primordial element of self-defense; shooting incident as an unlawful aggression, but appreciated it as a
without it, there can be no self-defense, complete or incomplete.22 To be mitigating circumstance of sufficient provocation.
appreciated, the unlawful aggression must be a continuing circumstance or
must have been existing at the time the defense is made.23 A person Moreover, the retaliation of the accused in Romero v. People,29 although
making a defense has no more right to attack an aggressor when the not considered an unlawful aggression, was nevertheless deemed as
unlawful aggression has ceased.24 In this case, the trial and appellate sufficient provocation. The Court explained, "Thrusting his bolo at
courts correctly held that while Serafin initially attacked petitioner with a petitioner, threatening to kill him, and hacking the bamboo walls of his
bolo, the unlawful aggression already ceased when the latter was able to house are, in our view, sufficient provocation to enrage any man, or stir his
go inside his brother’s house and the former ran away. At this point, there rage and obfuscate his thinking, more so when the lives of his wife and
was no longer any danger on his life; thus, there was also no necessity to children are in danger."30
"defend" himself by pursuing and attacking Serafin.

71
In the present case, petitioner was merely pacifying Serafin when the latter Regional Trial Court (RTC), Branch 18, Roxas City convicting and penalizing
suddenly attempted to hack the former. Although petitioner evaded the the petitioner for the crime of homicide with an indeterminate sentence of
attack, Serafin’s act was enough provocation to anger petitioner and cause six (6) years of prision correccional, as minimum, to ten (10) years of
him to strike back. prision mayor, as maximum. The assailed resolution, on the other hand,
denied the petitioner’s motion for reconsideration.
Thus, we find that sufficient provocation attended the crime. The prison
term imposed by the trial court in its October 29, 1997 Decision is hereby BACKGROUND
REINSTATED.1âwphi1
For the death of one Winnie Alon (Winnie), the prosecution charged
WHEREFORE, the petition is PARTIALLY GRANTED. The August 30, 2002 Arnaldo Socias,5 Joemar Palma, and the petitioner with the crime of
Decision in CA-G.R. CR No. 22536 is AFFIRMED with modification on the homicide under an Information that states:
penalty, as follows:
xxx
Petitioner is hereby found guilty of Homicide, and sentenced to suffer an
indeterminate prison term of four (4) years and two (2) months of prisión That at or about 5:40 o’clock in the afternoon, on or about July 21, 1996, at
correccional as minimum to ten (10) years of prisión mayor as maximum, Brgy. Poblacion Takas, Municipality of Cuartero, Province of Capiz,
and to pay the heirs of Serafin Gotis PhP 50,000 as indemnity for his death Philippines, and within the jurisdiction of this Honorable Court, the above-
and PhP 3,000 as actual damages. named accused, conspiring, confederating[,] and mutually helping one
another, armed with knives and with intent to kill, did then and there
No pronouncement as to costs. willfully, unlawfully and feloniously assault, attack and stab one WINNIE
ALON y BILLANES, hitting the latter and inflicting multiple stab wounds on
SO ORDERED. the different parts of his body, which injuries caused his death shortly
thereafter.

G.R. No. 153287 June 30, 2008 That due to the untimely death of Winnie Alon y Billanes[,] his heirs are
entitled to death indemnity in the amount of P50,000.00 and other
NOEL GUILLERMO y BASILIANO, petitioner, damages pursuant to the provisions of the Civil Code of the Philippines.
vs.
PEOPLE OF THE PHILIPPINES, respondent. ACTS CONTRARY TO LAW.6

DECISION The petitioner and his co-accused were arraigned and pleaded not guilty to
the offense charged with the assistance of their counsel de parte. The
BRION, J.: prosecution presented Vicente Alon (Vicente) and Eddie Roque (Eddie) as
witnesses in the trial that followed; Dr. Ricardo Betita, Jr. (Dr. Betita), Baby
For our review is the petition1 filed by the petitioner Noel Guillermo y Lou Felipe (Baby Lou), and the three accused – the petitioner, Arnaldo
Basiliano (petitioner) against the decision2 dated November 15, 2001 and Socias, and Joemar Palma – took the witness stand for the defense.
the resolution3 dated April 5, 2002 of the Court of Appeals (CA) in CA-G.R.
CR No. 24181. The challenged decision4 affirmed the decision of the

72
The material points in the testimony of Vicente were summarized by the each of the protagonists stood up and Arnel Socias took 2 bottles which
trial court in its decision7 as follows: were thrown to Vicente Alon who was hit on the forehead.17

Vicente Alon averred that at 5:40 in the afternoon of July 21, 1996, Winnie Noel Guillermo hugged or embraced Winnie Alon and stabbed him three
Alon, Wilfredo Cabison, Eddie Roque, and him [sic] were at the public times (3) on [sic] the neck with a Batangueño knife. Arnel Socias went
market of Cuartero, at [sic] the restaurant of Melecio Heyres to eat.8 Noel around, then behind, and stabbed Winnie Alon once, on the left side of his
Guillermo, Arnel Socias, and Joemar Palma were at the restaurant drinking body, just below his left armpit, with a pointed object, but he could not
beer. Noel Guillermo and Arnel Socias are known to him since childhood determine what weapon was used. Joemar Palma also helped in stabbing
since they come from the same barangay.9 Joemar Palma is known to him Winnie Alon once, hitting him at the right side of his body.18
only recently in that incident.10
Winnie Alon resisted trying to struggle [sic], but could not move because
While sitting at the table inside the restaurant, an altercation between he was ganged up by the three.19 [Footnotes referring to the pertinent
Arnel Socias and Winnie Alon regarding the cutting of wood by a chain saw parts of the record supplied]
[sic] transpired. Noel Guillermo suddenly took hold of Winnie Alon and
stabbed the latter at the neck three (3) times.11 Joemar Palma went to the Dr. Betita, rural health physician of Cuartero, Capiz, declared on the
kitchen and got a knife. Arnel Socias hit him with a bottle of beer by [sic] witness stand that he conducted on July 22, 1996 a postmortem
the head. He fell down and lost consciousness.12 [Footnotes referring to examination on the body of Winnie20 and made the following findings:
the pertinent parts of the record supplied]
POSTMORTEM EXAMINATION
Significantly, Vicente admitted on cross-examination that he and Winnie
were already drunk even before they went to the restaurant where the The postmortem examination is done on the remains of Winnie Alon, 31
stabbing took place.13 years old, single, from Malagab-i, Cuartero, Capiz, was stab [sic] to death at
about 5:40 P.M. at Pob. Takas, Public Market, Cuartero, Capiz sustaining
Eddie corroborated the testimony of Vicente on material points, the following injuries:
particularly on the state of their intoxication even before going to the
scene of the stabbing. His testimony on what transpired at the restaurant 1. Stab wound 1.5 x 3 cm with 6-8 cm depth [L]eft anterior chest at level of
was summarized in the RTC decision14 as follows: 5th rib mid clavicular area.

Eddie Roque alleged that at around 5:40 o’clock in the afternoon of July 2. Stab wound 2 x 3 cm with 5 cm depth anterior neck just above the
21, 1996, he, together with Winnie Alon, Vicente Alon and Wilfredo sternum.
Cabison, were [sic] inside the restaurant of Mrs. Heyres at Cuartero Public
Market to leave their tools of the chain saw [sic] and to eat and drink.15 3. Stab wound 2 x 3 cm with 3-5 cm depth at epigastric area.
Noel Guillermo, Arnel Socias, and Joemer Palma were ahead of them to
[sic] the restaurant and were drinking beer. They invited them and they The most probable cause of death was massive [H]emorrhage secondary to
joined them.16 Before each of them could fully consume a bottle served multiple stab wounds.21
upon each of them, Winnie Alon and Arnel Socias argued about the cutting
of wood by means of a chain saw [sic]. The argument was so heated that

73
According to Dr. Betita, the cause of death was massive hemorrhage due Joemar, arrived at the restaurant and ordered beer.27 A few minutes later,
to multiple stab wounds.22 He added that the three (3) stab wounds were Vicente, Eddie, Winnie, and Wilfredo Cabison arrived and also ordered
probably caused by a sharp-bladed instrument like a knife.23 beer. She then saw the group of Winnie transfer to the table occupied by
the petitioner and his companions. Thereafter, the group had a heated
The petitioner gave a different version of the events, summarized in the argument among themselves regarding "labtik."28 In the course of the
RTC decision as follows: exchange, she saw Winnie strike the petitioner on the head with a bottle.
Winnie and the petitioner then grappled with each other. At that point,
Noel Guillermo testified that at 5:30 in the afternoon of July 21, 1996, he she hid behind the refrigerator and did not see what happened next.
was in Cuartero at the restaurant of Melecio Heyres, husband of Gertrudes Afterwards, she saw the bloodied body of Winnie lying outside the
Heyres, together with Arnel Socias and Joemar Palma drinking beer, restaurant.29 She likewise saw the petitioner outside the restaurant; his
consuming only about half a bottle, when Winnie Alon, Eddie Roque, shirt was splattered with blood.30
Vicente Alon, and Wilfredo Cabison arrived and ordered beer from Babylou
Felipe. Winnie Alon came to him and requested to join them in their table Dr. Betita, this time testifying as defense witness, stated, among others,
which he affirmatively answered. Winnie Alon then had an altercation with that the contusion hematoma suffered by the petitioner could have been
Arnel Socias regarding "labtik" (string used in marking wood to be cut).24 caused by a hard object like a beer bottle, while the linear abrasion could
have been caused by a fingernail.31
Winnie Alon challenged Arnel Socias to a contest on clean or straight
cutting of wood. Arnel declined the challenge claiming that he is only an Arnaldo Socias testified that on July 21 1996, he, together with the
assistant to his brother-in-law. Winnie Alon got angry and told him that he petitioner and Joemar, was drinking beer at the restaurant of Melecio
has long been in [the] chain saw [sic] business but "you’re stupid" ("gago Heyres32 when Winnie stood up and asked if they (Winnie’s group) could
ka!"). Arnel responded: "If the wood is crooked and you would deviate join them at their table. Arnaldo and his companions agreed. Winnie’s
from line, you’re stupid."25 group then transferred to the table of Arnaldo’s group.33

Winnie Alon suddenly stood up and said to Arnel: "Don’t ever call me The discussion took a bad turn when the matter of cutting by chainsaw
stupid," pointing his finger to Arnel. He told them to settle the matter was raised. Winnie challenged Arnaldo to a contest to determine who
peacefully as they are friend [sic], but Winnie Alon was so furious and could do the cleanest cut. He declined and claimed he does not know how
grabbed Arnel Socias by the collar. Arnel tried to release the hold of to operate a chainsaw. To this, Winnie retorted, "You are already old in
Winnie from his collar. While he was pacifying the two telling them to that business, but your finished product is still crooked. You are all dumb."
settle the matter peacefully, Winnie Alon turned to him and said: "you He countered, "If the wood itself is crooked, you cannot have a straight
also," then struck him with a beer bottle. He was hit at the right top of his lumber. You are dumb if you insist you can." At that point, Winnie stood up
head thrice. He stood up and boxed Winnie who again picked up a bottle and grabbed him by the collar. The petitioner intervened and told them to
break [sic] it against the wall, and struck him with the broken bottle. He settle their differences peacefully. Winnie then grabbed a bottle and struck
stepped back, pulled his knife, and stabbed him three (3) times but cannot the petitioner on the head three times.34 Arnaldo added that he did not
remember what part of his body was hit by his successive stabs.26 x x x see who stabbed Winnie, because while the petitioner and Winnie were
[Footnotes referring to the pertinent parts of the record supplied] grappling, he was busy fighting with Vicente.35

Baby Lou, a waitress at the restaurant of Melecio Heyres, narrated that in Joemar Palma testified that in the afternoon of July 21, 1996, the
the afternoon of July 21, 1996, the petitioner, together with Arnaldo and petitioner, Arnaldo, and he were drinking beer at the restaurant of Mr.

74
Heyres when four persons, who appeared to be drunk (later identified as erred in failing to recognize the existence of all the elements of self-
Vicente, Eddie, Winnie, and Wilfredo Cabison), entered the restaurant and defense.
ordered beer.36 After the latter group joined them at their table, Winnie
and Arnaldo had a heated discussion regarding expertise in operating a THE COURT’S RULING
chainsaw. Winnie grabbed the shirt collar of Arnaldo in the course of the
heated exchange.37 The petitioner advised them to calm down, but We resolve to deny the petition for lack of merit.
Winnie struck him (petitioner) on the head with a beer bottle three times.
Vicente also tried to strike Arnaldo, but the latter managed to duck and so Plea of Self-Defense
he (Joemar) took the hit instead. Thereafter, he and Arnaldo engaged
Vicente.38 We note at the outset that the petitioner does not deny that he killed
Winnie. He expressly made this admission in his testimony of July 15, 1999:
The RTC, in its decision of January 8, 2000, convicted the petitioner of the
crime of homicide, but acquitted Arnaldo and Joemar. The dispositive ATTY. VILLAREAL:
portion of the decision reads:
Q: And what did you do when he struck you with the bottle?
WHEREFORE, the evidence on record having established the guilt of Noel
Guillermo as principal in the crime of homicide for stabbing three (3) times NOEL GUILLERMO:
Winnie Alon which caused the latter’s death, attended by a special or
privileged mitigating circumstance of incomplete justification, and without A: I was able to move backward and I realized that I have a knife on [sic]
any aggravating or mitigating circumstances attendant, he is imposed an the back of my waist.
indeterminate sentence of six (6) years of prision correccional, as
minimum, to ten (10) years of prision mayor, as maximum, with the Q: And what did you do with your knife?
corresponding accessory penalties, and to pay death indemnity of
P50,000.00 to the heirs of Winnie Alon, in the service of his sentence he A: I then stabbed him.
shall be credited the period that he undergone [sic] preventive
imprisonment, conformably with Art. 29 of the Code. Q: How many times?

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

For insufficiency of evidence, the accused Arnaldo Socias and Joemar The petitioner justifies the stabbing as an act of self-defense.
Palma are acquitted of the crime charged. The bail bond for their
provisional liberty is CANCELLED AND DISCHARGED. As the lower courts did, we do not recognize that the petitioner fully acted
in self-defense.
SO ORDERED.39 [Emphasis in the original]
As a rule, the prosecution bears the burden of establishing the guilt of the
The petitioner appealed to the CA whose decision is now assailed in the accused beyond reasonable doubt. However, when the accused admits the
present petition. The petitioner essentially claims that the RTC and the CA killing and, by way of justification, pleads self-defense, the burden of
evidence shifts; he must then show by clear and convincing evidence that

75
he indeed acted in self-defense. For that purpose, he must rely on the provocation to ignite the quarrel. Thus, the petitioner also has the element
strength of his own evidence and not on the weakness of the prosecution’s of lack of sufficient provocation in his favor.
evidence.41
The third element – the reasonableness of the means to repel the
The elements that the accused must establish by clear and convincing aggression – is the critical element that the lower courts found lacking in
evidence to successfully plead self-defense are enumerated under Article the petitioner’s case. Generally, reasonableness is a function of the nature
11(1) of the Revised Penal Code: or severity of the attack or aggression confronting the accused, the means
employed to repel this attack, the surrounding circumstances of the attack
ART. 11. Justifying circumstances. – The following do not incur any criminal such as its place and occasion, the weapons used, and the physical
liability: condition of the parties – which, when viewed as material considerations,
must show rational equivalence between the attack and the defense.43 In
1. Anyone who acts in defense of his person or rights, provided that the People v. Escarlos,44 this Court held that the means employed by a person
following circumstances concur; invoking self-defense must be reasonably commensurate to the nature and
the extent of the attack sought to be averted. In Sienes v. People,45 we
First. Unlawful aggression; considered the nature and number of wounds inflicted on the victim as
important indicia material to a plea for self-defense.
Second. Reasonable necessity of the means employed to prevent or repel
it; In the present case, the attack on the petitioner came as he intervened in a
quarrel between the victim and another party. As we concluded above, we
Third. Lack of sufficient provocation on the part of the person defending deem it established that the victim was the unlawful aggressor who
himself. attacked the petitioner. Physical evidence shows that indeed the petitioner
suffered the following injuries:
As a justifying circumstance, self-defense may be complete or incomplete.
It is complete when all the three essential requisites are present; it is 1. Contusion Hematoma 2 x 3 left parital area just above the left ear.
incomplete when the mandatory element of unlawful aggression by the
victim is present, plus any one of the two essential requisites.42 2. Linear abrasion 3 – 4 cm left hand medial side.

In the present case, we find it beyond dispute that the victim Winnie 3. Linear abrasion 2 – 3 cm left head ulnar side.46
started the fight that ended in his death; he struck the petitioner on the
head when the latter intervened to pacify the quarrel between Winnie and The weapons that caused these injuries were a beer bottle and, quite
Arnaldo. In short, the victim was the unlawful aggressor while the possibly, fingernails as the victim and the appellant grappled with each
petitioner was in the lawful act of pacifying the quarreling parties; thus, other.47 In contrast, the victim suffered three stab wounds: at the neck, at
the latter has in his favor the element of unlawful aggression by the victim. the abdomen and in the chest. The weapon used was a Batangas knife that
admittedly belonged to the petitioner. Thus, the physical evidence in the
We consider it also established that the petitioner did not provoke the case stands.
fight that ensued; he was a third party to the quarrel between the original
protagonists – Winnie and Arnaldo – and did not at all initiate any The petitioner claims self-defense on the position that Winnie, after hitting
him on the head three times with an empty bottle, grabbed another bottle,

76
broke it against the wall, and thrust it towards him. It was at this point that breastbone; and a last one was in the abdominal area, 3-5 cms. deep. The
the petitioner used his knife to inflict Winnie’s fatal wounds. Clearly, the depth of these wounds shows the force exerted in the petitioner’s thrusts
petitioner wants to impress upon us that his response to Winnie’s attack while the locations are indicative that the thrusts were all meant to kill, not
was reasonable; he used a knife to repel an attacker armed with a broken merely to disable the victim and thereby avoid his drunken thrusts.
beer bottle.
Fifth, in appreciating the facts, the RTC and the CA were one in the
Several reasons militate against our acceptance of the petitioner’s version conclusion to disbelieve the petitioner’s allegation of complete self-
and interpretation of events. defense, as reflected in the CA’s further cogent observations that:

First, there is intrinsic disproportion between a Batangas knife and a (b) If, indeed the deceased picked up another bottle of beer, hit the same
broken beer bottle. Although this disproportion is not conclusive and may against the wall, resulting in the breakage of the bottle, and with it, hit the
yield a contrary conclusion depending on the circumstances, we mention Appellant anew, it behooved the Appellant to have rushed posthaste to
this disproportionality because we do not believe that the circumstances the police station and report the stabbing, with the request that a
of the case dictate a contrary conclusion. policeman be dispatched to the locus criminis and confirm the presence of
broken pieces of beer bottle in the restaurant. The Appellant did not. He
Second, physical evidence shows that the petitioner suffered only one and his companions, Arnaldo and Joemar, fled from the scene, via the back
contusion hematoma at the parietal area above the left ear. Unless the door, and escaped on board a motorcycle.
three (3) beer bottle blows that the petitioner alleged all landed on the
same site – a situation that could have incapacitated the petitioner – the (c) Neither Arnaldo, Joemar, or Babylou corroborated the claim of the
more plausible conclusion from the physical evidence is that the petitioner Appellant that, after the Appellant boxed Winnie, who lost his hold of the
received only one blow, not three as he claimed. Contrary to what the bottle of beer, he picked up another bottle and struck the bottle of beer
petitioner wishes to imply, he could not have been a defender reeling from against the wall and hit the Appellant with the bottle. The appellant relied
successive head blows inflicted by the victim. solely on is own testimony to buttress his defense.

Third, the victim, Vicente, and Eddie, were already drunk when they (d) The Municipal Trial Court conducted a preliminary investigation of the
arrived at the restaurant before the fatal fight. This state of intoxication, "Criminal Complaint" filed against the Appellant, Arnaldo, and Joemar.
while not critically material to the stabbing that transpired, is still material However, the Appellant did not submit any "Counter-Affidavit" claiming
for purposes of defining its surrounding circumstances, particularly the fact that he was impelled to stab Winnie three (3) successive times on mortal
that a broken beer bottle might not have been a potent weapon in the parts of his body and killing [sic] him because Winnie picked up a bottle, hit
hands of a drunk wielder. the same against a wall and hit the Appellant anew with the broken
bottle.48 [Underscoring in the original]
Fourth, and as the CA aptly observed as well, the knife wounds were all
aimed at vital parts of the body, thus pointing against a conclusion that the We see no reason to disturb these findings as they are based on existing
petitioner was simply warding off broken beer bottle thrusts and used his evidence, and the conclusions drawn therefrom are patently reasonable.
knife as a means commensurate to the thrusts he avoided. To be precise, We have time and again held that the findings of facts of the trial court, its
the petitioner inflicted on the victim: one stab wound at the chest, 6-8 assessment of the credibility of witnesses and the probative weight of their
cms. deep, at the 5th rib clavicular area, or in plainer terms, in the area of testimonies, and the conclusions based on the these factual findings are to
the victim’s heart; another was at the neck, 5 cms. deep, just above the be given the highest respect; the trial court enjoys the unique advantage of

77
being able to observe, at close range, the conduct and deportment of The penalty which the RTC imposed and which the CA affirmed lowered
witnesses as they testify. These factual findings, when adopted and the penalty of reclusion temporal by one degree, which yields the penalty
confirmed by the CA, are final and conclusive and need not be reviewed on of prision mayor. From this penalty, the maximum of the indeterminate
the appeal to us. We are not a trier of facts; as a rule, we do not weigh penalty is determined by taking into account the attendant modifying
anew the evidence already passed on by the trial court and affirmed by the circumstances, applying Article 64 of the Revised Penal Code.51 Since no
CA.49 Only after a showing that the courts below ignored, overlooked, aggravating nor mitigating circumstance intervened, the maximum of the
misinterpreted, or misconstrued cogent facts and circumstances of indeterminate penalty shall be prision mayor in its medium period whose
substance that would alter the outcome of the case, are we justified in range is from 8 years and 1 day to 10 years.
undertaking a factual review. No such exceptional grounds obtain in this
case. To determine the minimum of the indeterminate penalty, prision mayor
has to be reduced by one degree without taking into account the
In sum, we rule that there was no rational equivalence between the means attendant modifying circumstances. The penalty lower by one degree is
of the attack and the means of defense sufficient to characterize the latter prision correccional whose range is from 6 months and 1 day to 6 years.
as reasonable. The trial court is given the widest discretion to fix the minimum of the
indeterminate penalty provided that such penalty is within the range of
The Proper Penalty prision correccional.

The imposable penalty for homicide under Article 249 of the Revised Penal The CA affirmed the indeterminate penalty of six (6) years prision
Code is reclusion temporal in its full range.50 Article 69 of the Code correccional, as minimum, to ten (10) years of prision mayor, as maximum,
however provides that: as imposed by the RTC on petitioner. We affirm this to be the legally
correct and proper penalty to be imposed upon petitioner.
ART. 69. Penalty to be imposed when the crime committed is not wholly
excusable. — A penalty lower by one or two degrees than that prescribed We also affirm the P50,000.00 death indemnity awarded to Winnie’s heirs,
by law shall be imposed if the deed is not wholly excusable by reason of in accordance with prevailing jurisprudence.52
the lack of some of the conditions required to justify the same or to
exempt from criminal liability in the several cases mentioned in Articles 11 We add that moral damages should be awarded as they are mandatory in
and 12, provided that the majority of such conditions be present. The murder and homicide cases without need of allegation and proof other
courts shall impose the penalty in the period which may be deemed than the death of the victim.53 The award of P50,000.00 as moral damages
proper, in view of the number and nature of the conditions of exemption is, therefore, in order.
present or lacking.
WHEREFORE, in light of all the foregoing, we DENY the petition. The
Since the petitioner’s plea of self-defense lacks only the element of assailed decision and resolution of the CA dated November 15, 2001 and
"reasonable means," the petitioner is, therefore, entitled to the privileged April 5, 2002, respectively, in CA-G.R. CR No. 24181 are AFFIRMED with the
mitigating circumstance of incomplete self-defense. Consequently, the MODIFICATION that the petitioner is ordered to pay the heirs of Winnie
penalty for homicide may be lowered by one or two degrees, at the Alon the amount of P50,000.00 as moral damages. Costs against the
discretion of the court. petitioner.

SO ORDERED.

78
G.R. No. 173824 August 28, 2008 Costales10; (5) Dr. Lindo Mensalvas11; (6) Dr. Rizal Leo Cala12; and (7)
Senior Police Officer (SPO) 2 Juanito Meneses II.13
PETER TARAPEN y CHONGOY, petitioner,
vs. The collective testimonies of the witnesses revealed:
PEOPLE OF THE PHILIPPINES, respondent.
At around 7:00 to 7:30 in the morning of 8 June 2000, a dump truck driven
DECISION by Jimmy Pugoy arrived at Zandueta St., Baguio City, to collect garbage. He
was accompanied by petitioner and Edmond Ferrer. The garbage truck
CHICO-NAZARIO, J.: came from lower Zandueta St. and proceeded to upper Zandueta St. Upon
reaching the Hilltop Market, the truck turned around. During this time,
Assailed before Us is the Decision1 of the Court of Appeals in CA-G.R. CR vendors, including the victim James Pangoden, Molly J. Linglingen, Silmana
No. 26636, dated 31 January 2006, which affirmed with modification the Linglingen and Virginia Costales were peddling their wares along said
Decision2 of the Regional Trial Court (RTC) of Baguio City, Branch 3, street. Petitioner alighted from the truck and signaled to the driver to
convicting petitioner Peter Chongoy Tarapen of the crime of Homicide. move slowly. Despite guiding the truck, said vehicle ran over the eggplants
being sold by Virginia Costales. Petitioner picked up the vegetables and
On 9 June 2000, petitioner was charged before the RTC of Baguio City with threw them towards the place where James was. This angered James
Frustrated Homicide for attacking and assaulting James Lacbao Pangoden.3 because the flowers he was selling were soiled. An exchange of words
The day after, the victim died from the injuries he sustained. As a ensued between petitioner and James.14 Petitioner went to the back of
consequence, an amended information was filed on 13 June 2000 charging the dump truck and got a shovel. He then moved in front of the truck
petitioner with Homicide allegedly committed as follows: where James was. While James was facing downwards, petitioner, coming
from behind and holding the shovel with two hands, struck James on the
That on or about the 8th day of June, 2000, in the City of Baguio, head with the same, causing him to fall to the ground in a squatting
Philippines, and within the jurisdiction of the Honorable Court, the above- position. As soon as James raised his head, petitioner hit the former’s head
named accused, with intent to kill, did then and there willfully, unlawfully again with the shovel.15 Petitioner then ran away. James was brought to
and feloniously attack, and assault JAMES LACBAO PANGODEN, by hitting the Baguio General Hospital & Medical Center (BGHMC) in a taxi.
his head twice with a steel shovel, thereby inflicting upon the latter:
Cardio-respiratory arrest secondary to cranio-cerebral injury, which The wife of James, Patricia Pangoden, arrived at the BGHMC and saw her
directly caused his death.4 husband in the Emergency Room. Dr. Rizal Leo Cala refused to operate on
her husband, saying that it was already hopeless. She then requested for
The case was raffled to Branch 3. When arraigned on 15 June 2000, the transfer of her husband to the Saint Louis University (SLU) Hospital.
petitioner, with the assistance of counsel de oficio, pleaded not guilty to The request was approved, and her husband was transferred to SLU
the crime charged.5 Hospital at 1:30 p.m. James was operated on, and Patricia was told that
her husband had no more chance to live. She was advised to bring home
On 10 October 2000, the pre-trial conference of the case was terminated James; otherwise, they would just be spending so much. Patricia brought
with the trial court issuing its pre-trial order.6 her husband to his hometown in Namatugan, Sudipen, La Union, where he
expired on 10 June 2000.16
The prosecution presented the following witnesses, namely: (1) Patricia S.
Pangoden7; (2) Molly J. Linglingen8; (3) Silmana Linglingen9; (4) Virginia

79
Patricia S. Pangoden testified on the events that happened to her husband
from the time he was bought to the hospital until the time he died. She For the defense, the following took the witness stand: (1) Jimmy Pugoy,21
also testified on the expenses she incurred as a result of the incident.17 (2) petitioner Peter Tarapen,22 (3) Edmond Ferrer,23 and (4) Dr. Maryjane
Tipayno.24
Molly J. Linglingen and Silmana Linglingen, mother and daughter, and co-
vendors of James at Zandueta St., testified that they saw petitioner get a The version of the defense as culled from these witnesses is as follows:
shovel from the rear of the garbage truck, approach James from behind,
and hit him with it twice on the head. Jimmy Pugoy, petitioner Peter Tarapen and Edmond Ferrer are garbage
collectors employed by the General Services Office of the City of Baguio. At
Virginia Costales recounted the events prior to her seeing James already around 3:00 a.m. of 8 June 2000, they started collecting garbage. At
slumped on the ground. She narrated that when the garbage truck was around 7:00 a.m., they arrived at Zandueta St. Half of said street was
going down Zandueta St., petitioner got off from the truck and guided it. almost occupied by vendors who were selling various goods. In order to
The truck ran over the eggplants she was selling. Petitioner picked them up collect garbage piled on said street, the truck driven by Jimmy Pugoy had
and threw them to where James was. James, she said, got angry because to go up the street then go down. While going down the street, Pugoy kept
the flowers he was selling were soiled. Petitioner and James exchanged on honking the truck’s horn, causing the vendors selling near the garbage
words. While the two were exchanging words, she transferred her sack of pile to move away, but some of their goods were left behind. Ferrer
eggplants to a nearby place. It was then that she heard people shouting. alighted and started filling up the garbage basket with the use of a shovel.
When she turned around, she saw James already slumped on the ground Peter saw a sack of eggplants pinned under the truck being removed by its
oozing with blood. owner. Peter helped the old woman carry the sack to the side of the road
when, all of a sudden, James punched him hard on the right ear, causing
Dr. Lindo Mensalvas and Dr. Rizal Leo Cala, physicians at the SLU Hospital him to fall and roll down the street. Peter ended up sitting on the ground.
and BGHMC, respectively, attended to the victim. They respectively issued As he was getting up with his hands raised, James punched him again.
a medico-legal certificate containing the injuries sustained by the victim.18 Peter protested, saying he did not do anything wrong. James answered:
"You people from the government are show-off[s]." Peter, still dizzy while
SPO2 Juanito Meneses II, assigned at Police Community Precinct 1, Baguio getting up and still with hands raised, was kicked by James on the left side
City, was the investigator to whom the case of petitioner was turned over. of the body. Peter fell on the road and rolled anew.25 Feeling very dizzy,
At around 10:00 a.m. of 8 June 2000, the Division Chief of the General Peter tried to pick up something to throw at James to stop him, because he
Services Office of Baguio City turned the petitioner over to him. SPO2 (Peter) thought James would kill him. At this moment, Edmond was coming
Meneses disclosed that petitioner admitted to having inflicted injuries on to the aid of Peter, who was in front of the truck. Edmond carried with him
the victim. The police officer disclosed that he did not notice any injury on the shovel he used to collect garbage. Edmond tried to help Peter stand.
Peter’s body or face. He added that Peter did not request any medical He put down the shovel on the ground. While in a sitting position, Peter
treatment that morning. He brought Peter to the BGHMC for possible was able to get hold of the shovel and swing it, hitting James who was
identification, but the victim was still unconscious. Upon going back to the approaching him and about to strike with a clenched fist. With the help of
police station, he took the statement of the victim’s wife. He likewise the shovel, Peter stood up and tried to leave. When James followed Peter,
identified the steel shovel19 allegedly used in killing the victim. the latter hit him again with the shovel. Peter saw James boarding a taxi.
After feeling a little better, Peter walked to his office and reported the
The prosecution formally offered Exhibits "A" to "H," inclusive, with sub- matter to his supervisor.
markings which the trial court admitted.20

80
Peter, accompanied by his supervisor, voluntarily surrendered to the police Petitioner testified that at the time the incident subject of this case
authorities. Per his request, he was brought to the hospital where he met happened, he was in Zandueta St. to collect garbage. He was riding the
James’s wife who hit him on the back. To avoid trouble, he was brought to garbage truck driven by Jimmy Pugoy. Since the driver was continuously
the City Jail. Upon posting bail, he went to the hospital for treatment. blowing the horn of the vehicle, he went down the truck and saw a sack of
eggplants under the vehicle. The owner of the sack of eggplants
Jimmy Pugoy testified on what he allegedly saw that fateful morning. He approached him and asked him to help her. He helped the old woman
recounted that while he was maneuvering the garbage truck he was remove the sack under the truck and carry it to the side of the road. After
driving at Zandueta St., he saw petitioner Peter Tarapen go down the truck that, he said someone (James) punched him at the right side of the head,
and help an old woman, who was in front of the truck, carry a sack of which caused him to fall and sit on the road. As he was getting up with his
eggplants. At that moment, a person (James) went near Peter and hands raised, James said, "Nalastog kayo nga taga-gobierno," and then
suddenly punched him on the face, causing him to fall and roll down the punched him for the second time. He was a little dizzy and was again
street. When Peter stood up with his hands raised, James punched him getting up when he was kicked on the left side of his body. Feeling very
again on the face, making the latter fall and roll again. Peter stood up a dizzy, he tried to pick up something to throw at James. While sitting, he got
second time with his hands up. This time, he said, James delivered a flying hold of a shovel which he swung, hitting James. Peter said he got up to run
kick, which hit Peter on the stomach. Peter fell and rolled once more. After away, but James followed him. It was then that Peter hit him again with
this, Jimmy no longer saw what happened, because the people had the shovel. He went to their office and he was accompanied by his
gathered, and he parked the truck. After parking the vehicle, what he saw supervisor in surrendering to the police. He added that he asked the
was a man lying on the ground. He went back to the office and gave a policemen to bring him to the hospital, because his ear was aching. It was
report. on 16 July 2000 that he was able to have a medical examination of his ears.

Edmond Ferrer narrated that at around 7:00 a.m. of 8 July 2000, he was Dr. Maryjane Tipayno, physician at the BGHMC, testified that she
with Jimmy Pugoy and Peter Tarapen at Zandueta St. collecting garbage. performed an audio logic test on petitioner on 16 June 2000. She found
He was with Peter hanging at the back of the truck. When the vehicle out that petitioner had mild hearing loss on the left ear and severe hearing
stopped, Peter alighted and went in front of the vehicle. Jimmy also went loss on the right ear.26 She said that the hearing condition of petitioner
down, taking with him the shovel and the garbage basket. While Peter was could not have been self-inflicted. She explained that the hearing loss in
settling some things in front, he placed the garbage inside the basket. After both ears could have started years before. She added that it was Dr.
filling up the basket and before he could load it into the truck, he heard Vinluan who interviewed the petitioner, and that it was petitioner who
people shouting in front of the vehicle. As there was a commotion, he told him that the hearing loss in his right ear was due to a blunt trauma.
proceeded to the front of the vehicle carrying the shovel he was using. He
saw Peter sitting on the ground shaking his head. He went near Peter, put After formally offering Exhibits "1" and "2" and with the admission thereof
down the shovel and tried to help him stand up. A person approached and by the trial court, the defense rested its case.27
was about to hit Peter, when the latter got hold of the shovel, swung it and
hit this person. The person remained standing. Peter was able to stand and As rebuttal witnesses, the prosecution presented Molly Linglingen, who
was turning around to leave, but the person whom he hit with the shovel said that petitioner was standing up when he hit James twice on the head
was about to follow him in order to punch him. Peter hit this person one with a shovel. He explained that James was standing with his back turned,
more time, causing the latter to fall down. Seeing Peter leave, he also left. when Peter came from behind and hit him.28

81
On 20 June 2002, the trial court convicted petitioner of Homicide in a Notice of Appeal.32 In an Order33 dated 29 July 2002, the trial court,
decision the dispositive portion of which reads: finding the notice of appeal to have been seasonably filed, forwarded the
records of the case to the Court of Appeals.
WHEREFORE, the Court finds accused Peter Tarapen GUILTY beyond
reasonable doubt for the crime of Homicide and he is hereby sentenced to On 31 January 2006, the Court of Appeals rendered a decision, affirming
suffer the penalty of imprisonment at the National Penitentiary, with modification the decision of the trial court convicting petitioner Peter
Muntinlupa City from Fourteen (14) Years as Minimum to Twenty (20) Chongoy Tarapen of the crime of Homicide, the decretal portion reading:
Years as Maximum. Peter Tarapen shall also indemnify private complainant
Patricia Pangoden the following amounts: One Hundred Ninety Five WHEREFORE, in view of all the foregoing, the decision dated June 20, 2002
Thousand Eighty Pesos and 05/100 (P195,080.05), representing the of Branch 3 of the Regional trial Court of Baguio City in Criminal Case No.
expenses for hospitalization, funeral and burial; Moral Damages to Patricia 17792-R finding accused-appellant Peter Tarapen y Chongoy guilty beyond
Pangoden in the amount of Three Hundred Thousand Pesos (P300,000.00) reasonable doubt of the crime of homicide is AFFIRMED with modification.
and Death Indemnity of Fifty Thousand Pesos (P50,000.00), and Loss of Accused-appellant is sentenced to suffer the penalty of eight (8) years of
Earning Capacity in the amount of Three Million One Hundred Thirty Five prision mayor, AS MINIMUM, to fourteen (14) years of reclusion temporal,
Thousand Seven Hundred Twenty Pesos (P3,680,800.05), plus costs of suit AS MAXIMUM, and ordered to pay the heirs of the victim James Lacbao
against the accused.29 Pangoden the following amounts: P51,549.25 in actual damages,
P50,000.00 as moral damages, P50,000.00 as civil indemnity and the sum
The trial court gave credence to the testimonies of the prosecution of P1,960,200.00 representing lost earnings.34
witnesses Molly J. Linglingen, Silmana Linglingen and Virginia Costales as
against the testimonies of defense witnesses Jimmy Pugoy, petitioner On 8 March 2006, petitioner filed a Motion for Reconsideration,35 on
Peter Tarapen and Edmond Ferrer. The trial court found the prosecution’s which the Office of the Solicitor General (OSG) filed its Comment.36 On 6
version of the incident credible. The trial court said Virginia Costales saw July 2006, the Court of Appeals denied said motion.37
the first part of the incident, which was the heated argument between
petitioner and the victim involving the victim’s soiled goods, while Molly J. On 31 August 2006, petitioner, via registered mail, filed a petition for
Linglingen and Silmana Linglingen witnessed the second part of the review with this Court, seeking the reversal of the decision of the Court of
incident when petitioner went to the back portion of the garbage truck and Appeals.38
got a shovel with which he hit the victim from the back, twice on the head,
resulting in his death. Having had the opportunity to observe them, it was In our Resolution39 dated 2 October 2006, respondent People of the
convinced that they were telling the truth vis-à-vis the defense witnesses Philippines, through the OSG, was required to file its Comment on the
who were lying, as can be seen from their hesitant answers and evasive petition. After three motions for extension to file comment on the petition,
looks when they testified for the petitioner who was a co-employee. which were granted by this Court, the OSG filed its Comment on 5
February 2007.40 On 12 March 2007, petitioner was required to file a
The trial court likewise did not appreciate self-defense in favor of Reply to the Comment, which he did on 11 December 2007.41
petitioner, who struck the unarmed victim from the back, twice on the
head. On 18 February 2008, the Court resolved to give due course to the petition
for review on certiorari and required the parties to submit their respective
On 8 July 2002, petitioner filed a Motion for Reconsideration,30 which the memoranda within thirty (30) days from notice. Petitioner and respondent
trial court denied on 16 July 2002.31 On 23 July 2002, petitioner filed a filed their respective memoranda on 2 May 2008 and 10 April 2008.42

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Petitioner assails his conviction, arguing that both trial courts: Petitioner brands Molly and Silmana Linglingen as biased witnesses, thus,
unreliable, because they were town mates and co-vendors of the victim.
I. Erred in giving credence to the prosecution witnesses, despite the grave The fact that these two witnesses were the victim’s town mates and co-
inconsistencies in their testimonies and not considering the testimonies of vendors did not necessarily make them biased witnesses. It is well-settled
the witnesses for the defense showing manifest bias against the accused. that the mere relationship of a witness to the victim does not impair the
witness’ credibility. On the contrary, a witness’ relationship to a victim of a
II. Erred in not acquitting the accused when the defense had sufficiently crime would even make his or her testimony more credible, as it would be
proved the existence of facts proving that indeed the accused was unnatural for a relative, or a friend as in this case, who is interested in
defending himself from James Pangoden. vindicating the crime, to accuse somebody other than the real culprit.44 A
witness is said to be biased when his relation to the cause or to the parties
III. Erred in not acquitting the accused based on reasonable doubt.43 is such that he has an incentive to exaggerate or give false color to his
statements, or to suppress or to pervert the truth, or to state what is
On the first assigned error, petitioner contends that the testimonies of false.45 To warrant rejection of the testimony of a relative or friend, it
Molly and Silmana Linglingen that there was no prior quarrel or exchange must be clearly shown that, independently of the relationship, the
of words between petitioner and James before the former hit the latter testimony was inherently improbable or defective, or that improper or evil
with a shovel, are contrary to human experience, because petitioner could motives had moved the witness to incriminate the accused falsely.46
not have taken the life of James, whom he did not personally know, for no
reason at all. The friendship of Molly and Silmana Linglingen with the victim, per se, did
not impair their credibility. We, like both lower courts, are convinced that
This contention is untenable. they were telling the truth. Moreover, the defense failed to show any
evidence that prosecution witnesses Molly and Silmana Linglingen had
A review of the testimonies of both Molly and Silmana Linglingen shows improper or evil motives to testify falsely against petitioner. This being the
they never said that petitioner and the victim did not have any prior case, their testimonies are entitled to full faith and credit.
quarrel or exchange of words before Peter hit James with the shovel. What
they said was that they never witnessed any quarrel or exchange of words The defense accuses the prosecution witnesses of deliberately suppressing
between Peter and James. They, however, declared in unison that they material evidence favorable to the petitioner. It thus argues that it may be
saw petitioner get a shovel from the back of the garbage truck and, coming safely presumed that such evidence, having been willfully suppressed,
from behind, twice struck James on the head with it. Both Molly and would be adverse if produced.
Silmana Linglingen never witnessed the events prior to Peter’s act of
getting the shovel. This void was substantially filled up by the testimony of We do not find any suppression of evidence by the prosecution. The
Virginia Costales, who actually witnessed the altercation between the defense failed to specify which evidence was suppressed. It simply made a
petitioner and the victim. Through the testimony of Mrs. Costales, it general statement that the prosecution witnesses allegedly did not tell the
became clear why petitioner got the shovel, which he used in striking truth and thus deliberately suppressed material evidence favorable to the
James twice on the head. By combining the testimonies of the three ladies, petitioner. The adverse presumption of suppression of evidence is not
a picture of the incident has been wholly painted. The rage that Peter had applicable when (1) the suppression is not willful; (2) the evidence
in him was brought about by his squabble with James. The defense cannot, suppressed or withheld is merely corroborative or cumulative; (3) the
therefore, claim that Peter took the life of James for no reason at all. evidence is at the disposal of both parties; and (4) the suppression is an

83
exercise of a privilege.47 In the case at bar, the prosecution witnesses who of his head. The findings of Dr. Mensalvas mean that James was facing
allegedly suppressed material evidence were presented in court and were Peter when hit by the shovel contrary to the prosecution’s claim that
cross-examined by the defense counsel. How then can the defense claim James was hit by Peter from behind.
there was suppression? The defense counsel was able to question these
witnesses, but failed to elicit the answer he wanted or needed to hear for We do not agree.
the exoneration of his client.
The defense relies too much on the findings made by Dr. Lindo Mensalvas
The defense attacks the credibility of Virginia Costales by pointing out that and completely omits the findings made by Dr. Rizal Leo Cala. It must not
her testimony in court, that she did not see petitioner and the victim be forgotten that the victim was brought to two hospitals where the
engage in a fistfight, contradicts her declaration in her sworn statement attending doctors issued separate medico-legal certificates. The medico-
that that two engaged in a fistfight. legal certificate50 issued by Dr. Cala of the BGHMC was marked Exh. "D."
The one issued by Dr. Mensalvas was marked Exh. "C."
Such inconsistency will not discredit her. It is settled that certain
discrepancies between declarations made in an affidavit and those made On the witness stand, Dr. Cala read his findings as follows:
on the witness stand seldom could discredit the declarant. Sworn
statements, being taken ex parte, are almost always incomplete and often "Skull Fracture" meaning there is a break in the skull bone, "Linear" which
inaccurate for various reasons, sometimes from partial suggestion or for is a straight line fracture, "parietal" area on the right side of the head, then
want of suggestion and inquiries. They are generally inferior to the we have "Epidural hematoma" it is a blood clot at the right side of the
testimony of the witness given in open court. Our case law is unequivocal head.51
in saying that the testimony of a witness prevails over an affidavit. In short,
affidavits are generally subordinated in importance to open-court When cross-examined, he explained his findings as follows:
declarations; or, more bluntly stated, whenever there is inconsistency
between an affidavit and the testimony of a witness in court, the q Both injuries you found were on the front parietal area?
testimony commands greater weight.48 The Court has consistently ruled
that the alleged inconsistencies between the testimony of a witness in a Yes, Sir.
open court and his sworn statement before the investigators are not fatal
defects that would justify the reversal of a judgment of conviction.49 In q Will you please demonstrate to us?
this case, when Mrs. Costales was confronted with this contradiction, she
explained that she never told the police that the petitioner and the victim a (Witness demonstrating by pointing to the right side of his head.)
had a fistfight. What she said was they had a quarrel; that is, they faced
each other and exchanged words. q Doctor, while you were demonstrating, the linear fracture, is it
perpendicular to the head?
The defense tries to destroy the version of Molly and Silmana Linglingen
that the victim was hit from behind by arguing that same is not a I am sorry but it was injury to the right side of the head, Sir.
corroborated by medical findings. Molly and Silmana Linglingen’s claim
that James was hit on the right side of the head was, according to the q Only part of the right ear?
defense, negated by the findings of Dr. Mensalvas that James suffered
injuries on the "left frontoparietal and left frontotemporo parietal" areas a Yes, sir.

84
By actual practice, only government physicians, by virtue of their oaths as
q If I am facing you, it is on your? civil service officials, are competent to examine persons and issue medical
certificates which will be used by the government.54 As such, the medical
a Right, Sir. certificate carries the presumption of regularity in the performance of his
functions and duties. Moreover, under Section 44, Rule 130,55 Revised
q Right side on your part. Did you find any injury on the left side? Rules of Court, entries in official records made in the performance of
official duty are prima facie evidence of the facts therein stated. Dr. Cala’s
a No, Sir.52 findings that the victim sustained injuries on the right side of his head are,
therefore, conclusive in the absence of evidence proving the contrary, as in
From the medico-legal certificate issued by Dr. Cala and with his testimony this case. We cannot consider the contents of the medical certificate
in court, it is clear that the victim suffered injuries on the right side of his issued by Dr. Mensalvas sufficient to controvert the findings of Dr. Cala. As
head. Thus, the claim of Molly and Silmana Linglingen that the victim was held by this Court, an unverified medical certificate not issued by a
struck from behind on the right side of his head is consistent with the government physician is unreliable.56
findings of Dr. Cala.
Even assuming arguendo that we give more weight to the medical
Dr. Mensalvas, on the other hand, testified that the victim sustained four certificate issued by Dr. Mensalvas, this does not mean that the
injuries, three of which were on the left side of the head and one on the testimonies of Molly and Silmana Linglingen shall be disbelieved. It is noted
right side. The medical certificate he issued states that the victim was that Dr. Mensalvas testified that the victim sustained a wound on the right
confined for the following injuries: side of his head, possibly caused by a steel shovel.57 Such a finding is
consistent with the claim of Molly and Silmana Linglingen that the victim
1. ACCI; CEREBRAL CONTUSSION was hit on the right side of the head. Though there can be inconsistencies
of the testimonies of the witnesses with Dr. Mensalvas’s other findings
2. EPIDURAL HEMATOMA, LEFT FRONTOPARIETAL AREA (i.e., injuries on the left portion of the head) this does not mean that we
should totally doubt and discard the other portions of their testimonies.
3. SUTURED SCALP LACERATION, RIGHT TEMPOROPARIETAL AREA
Well-settled is the rule that the testimony of a witness may be believed in
4. SCALP CONTUSSION, LEFT FRONTOTEMPORO PARIETAL AREA WITH part and disbelieved in another, depending on the corroborative evidence
UNDERLYING LINEAR FRACTURE OF THE SKULL EXTENDING FROM THE LEFT or the probabilities and improbabilities of the case. Where a part of the
FRONTAL TO THE LEFT TEMPORAL BONE.53 testimony of a witness runs counter to the medical evidence submitted, it
is within the sound discretion of the court to determine which portions of
The question now is: which medical findings should this Court believe? the testimony to reject as false and which to consider worthy of belief.58

This Court believes in the findings made by Dr. Cala as contained in the From the two medical certificates issued, what cannot be doubted is the
medico-legal certificate he issued showing that the victim suffered injuries fact that the victim sustained head injuries, whether on the left or the
on the right side of his head, consistent with the declarations of right, which caused his demise.
prosecution witnesses that the victim was, from behind, struck with a
shovel twice on the right side of the head. We give more weight to this We find the testimonies of the prosecution eyewitnesses more credible
medical certificate, because the same was issued by a government doctor. and convincing than those of the defense eyewitnesses. When it comes to

85
credibility, the trial court’s assessment deserves great weight and is even Third. Lack of sufficient provocation on the part of the person defending
conclusive and binding, if not tainted with arbitrariness or oversight of himself.
some fact or circumstance of weight and influence. The reason is obvious.
Having the full opportunity to observe directly the witnesses’ deportment Having admitted that he killed James, the burden of evidence that one
and manner of testifying, the trial court is in a better position than the acted in self-defense shifted to petitioner. Like an alibi, self-defense is
appellate court to evaluate testimonial evidence properly.59 inherently weak, for it is easy to fabricate.61 It is textbook doctrine that
when self-defense is invoked, the burden of evidence shifts to the accused
The Court of Appeals further affirmed the findings of the RTC. In this to show that the killing was justified, and that he incurred no criminal
regard, it is settled that when the trial court’s findings have been affirmed liability therefor. He must rely on the strength of his own evidence and not
by the appellate court, said findings are generally conclusive and binding on the weakness of the prosecution’s evidence, for, even if the latter were
upon this Court. We find no compelling reason to deviate from their weak, it could not be disbelieved after his open admission of responsibility
findings. for the killing. Hence, he must prove the essential requisites of self-defense
as aforementioned.62
Petitioner claims that the trial court judge was not able to observe the
demeanor of the prosecution witnesses, because they were looking at the Unlawful aggression is a condition sine qua non for the justifying
court interpreter when they were testifying. We find this untenable. The circumstance of self-defense, whether complete or incomplete.63
trial court judge was emphatic in saying that he had the chance to see the Unlawful aggression presupposes an actual, sudden, and unexpected
face of the witness while she testified.60 attack, or imminent danger thereof, and not merely a threatening or
intimidating attitude.64 There must be actual physical force or a threat to
On the second and third assigned errors, petitioner admits killing James inflict physical injury. In case of a threat, it must be offensive and positively
but invokes self-defense. He claims that the victim was the unlawful strong so as to display a real, not imagined, intent to cause injury.65
aggressor and that he (petitioner) did not provoke the victim.
We agree with the Court of Appeals that petitioner failed to clearly and
Article 11, paragraph (1) of the Revised Penal Code, provides for the convincingly prove self-defense, whether complete or incomplete.
elements and/or requisites in order that a plea of self-defense may be
validly considered in absolving a person from criminal liability, viz: We confirm the observation of the trial court. A circumspect scrutiny of
accused-appellant’s version of what happened likewise leaves this Court
ART. 11. Justifying circumstances. – The following do not incur any criminal unconvinced that he killed the victim James Pangoden in self-defense.
liability:
First, accused-appellant’s claim that the victim James Pangoden, suddenly
1. Anyone who acts in defense of his person or rights, provided that the and without provocation, boxed him on his right ear is simply unbelievable.
following circumstances concur; By his own account, he (accused-appellant) was at that moment helping a
road vendor carry her sack of eggplants away from the path of the truck. If
First. Unlawful aggression; this is true, then his testimony that James Pangoden attacked and boxed
him for no reason at all loses credibility. Testimonies to be believed must
Second. Reasonable necessity of the means employed to prevent or repel not only come from the mouth of credible witnesses but should by
it; themselves be credible, reasonable, and in accord with human experience.

86
Second, it is likewise inconceivable how accused-appellant could have hit Fourth, accused-appellant himself admitted walking away from the crime
the victim James Pangoden twice in the head while he (accused-appellant) scene immediately after the incident. As we see it, this actuation on his
was allegedly in a sitting position and holding the shovel by the middle part part is contrary to his assertion of self-defense. Flight strongly indicates a
of its shaft. Interestingly also, while accused-appellant and his witness guilty mind and betrays the existence of a guilty conscience, for a righteous
testified that he was in a "sitting" position when he hit James Pangoden individual will not cower in fear and unabashedly admit the killing at the
with the shovel, accused-appellant portrayed a different account when earliest possible opportunity if he were morally justified in doing so.
asked during cross-examination to demonstrate how he hit the victim, viz:
Finally, the nature and number of the fatal injuries inflicted upon James
Q: Now, how did you hit Pangoden with the shovel, demonstrate it to the Pangoden negate accused-appellant’s claim of self-defense. Said victim
Court. All right you can step down from the witness stand (Witness suffered cerebral contusion, epidural hematoma, scalp laceration and skull
demonstrating.) fracture, which directly caused his death. If accused-appellant hit the
victim just to defend himself, it certainly defies reason why he had to aim
For the record, witness was in a kneeling position when he got the shovel. for the head and do it twice. Indeed, the nature, number and location of
the wounds sustained by the victim belie the assertion of self-defense
A: I was down on the ground, and I was groping (sic) to somebody and I since the gravity of said wounds is indicative of a determined effort to kill
was able to get hold of the shovel, that was the time I swang (sic) it and not just to defend.
towards him.
xxxx
Q: You have not demonstrated how you hit Pangoden with the shovel?
But even assuming arguendo that accused-appellant was able to establish
For the record, witness is in a kneeling position when he allegedly picked the element of unlawful aggression, still, this Court will rule out self-
up the shovel holding it in the middle part. With his two hands and swang defense.
(sic) it upwards towards his left.
It is undisputed that James Pangoden was unarmed while accused-
For the record, accused held the shovel on the middle part of the shaft, appellant was armed with a steel shovel. There was no reasonable
your Honor, not on the handle. necessity for accused-appellant to use a steel shovel to repel the attack of
an unarmed man. Moreover, the eyewitnesses’ account of how accused-
Third, it simply goes against the grain of human experience for the victim appellant uncaringly threw the soiled eggplants towards the direction of
James Pangoden to persist in his attack against accused-appellant after James Pangoden’s goods would negate the absence of sufficient
getting hit in the head with a steel shovel, considering that he is unarmed provocation on the part of accused-appellant. Thus, the second and third
and had nothing to match accused-appellant’s weapon on hand. That requisites for self-defense to be successfully invoked, namely, reasonable
James Pangoden still had the resolution and power for a second assault on necessity of the means employed to repel the attack and lack of sufficient
accused-appellant, after getting hit with a steel shovel in the head, flouts provocation on the part of the accused, are not present in this case.66
ordinary human capacity and nature. In contrast, accused-appellant would
claim that he "fell down" and "felt dizzy" after getting boxed on the right We now go to the imposition of the penalty. We agree with the Court of
side of his head by James Pangoden with his bare fist. Appeals when it appreciated in favor of the petitioner the mitigating
circumstance of voluntary surrender. It was established that a few hours

87
after the incident, petitioner submitted himself to his supervisors, who, in jurisprudence,69 the award of P50,000.00 to the heirs of the victim as civil
turn, surrendered him to the police authorities. indemnity is in order.70

Petitioner is guilty of Homicide for having killed James Pangoden. The As to actual damages, the heirs of the victim are entitled thereto, because
penalty for homicide under Article 249 of the Revised Penal Code is said damages amounting to P51,549.25 were duly proved by receipts. It is
reclusion temporal. However, considering that there is one mitigating necessary for a party seeking actual damages to produce competent proof
circumstance and no aggravating circumstance in the commission of the or the best evidence obtainable, such as receipts, to justify an award
crime, the imposable penalty, following Article 64(2) of the Revised Penal therefor.71
Code, is reclusion temporal in its minimum period or within the range of
twelve (12) years and one (1) day to fourteen (14) years and eight (8) Moral damages must also be awarded because these are mandatory in
months. Applying the Indeterminate Sentence Law, the maximum penalty cases of murder and homicide, without need of allegation and proof other
to be imposed shall be taken from the minimum period of reclusion than the death of the victim.72 The award of P50,000.00 as moral damages
temporal, while the minimum shall be taken from within the range of the is in order.
penalty next lower in degree, which is prision mayor or from six (6) years
and one (1) day to twelve (12) years. The award of P25,000.00 as temperate damages in homicide or murder
cases is proper when no evidence of burial and funeral expenses is
The Court of Appeals sentenced petitioner to suffer the penalty of eight (8) presented in the trial court.73 Under Article 2224 of the Civil Code,
years of prision mayor, as minimum, to fourteen (14) years of reclusion temperate damages may be recovered, as it cannot be denied that the
temporal, as maximum. We find this to be in order. heirs of the victim suffered pecuniary loss, although the exact amount was
not proved.74 In the case on hand, temperate damages cannot be
With respect to award of damages, the trial court awarded to the heirs of awarded, because evidence of expenses for burial and funeral has been
the victim the following amounts: P195,080.05 as actual damages; presented for which actual damages have been awarded.
P300,000.00 as moral damages; P50,000.00 as death indemnity; and
P3,135,720.00 for loss of earning capacity. As regards exemplary damages, Article 2230 of the Civil Code allows the
award thereof as part of the civil liability when the crime was committed
The Court of Appeals, except for the award of death indemnity, reduced with one or more aggravating circumstances.75 There being no
the awards given by the trial court as follows: P51,549.25 as actual aggravating circumstance that accompanied the commission of the crime,
damages; P50,000.00 as moral damages and P1,960,200.00 for lost exemplary damages cannot be awarded.
income.
The computation of the Court of Appeals with respect to lost earning
When death occurs due to a crime, the following damages may be capacity is correct. At the time of his death, the victim was 31 years old.
awarded: (1) civil indemnity ex delicto for the death of the victim; (2) His gross annual income was P120,000.00 because he was earning
actual or compensatory damages; (3) moral damages; (4) exemplary P10,000.00 monthly. Living expenses are estimated at 50% of the gross
damages; and (5) temperate damages.67 annual income. Loss of earning capacity is computed by applying the
following formula:76
Civil indemnity is mandatory and granted to the heirs of the victim without
need of proof other than the commission of the crime.68 Under prevailing

88
WHEREFORE, all the foregoing considered, the decision of the Court of - stab wound at the left forearm, 3 cm. length and 1 inch depth.
Appeals in CA-G.R. CR No. 26636, dated 31 January 2006, is AFFIRMED in
toto. Costs against the petitioner. which caused his instantaneous death to the damage and prejudice of the
heirs of Danilo Camba.
SO ORDERED.
CONTRARY to Article 248 of the Revised Penal Code.3

PEOPLE OF THE PHILIPPINES, vs. CLEMENTE CASTA y CAROLINO, The appellant pleaded not guilty to the charge upon arraignment. The
prosecution presented the following witnesses in the trial on the merits
G.R. No. 172871 September 16, 2008 that followed: Marlyn4 Cister; Modesto Cardona; Domingo Camba;
Dionisia Camba; and Dr. Prudencio C. de Perio. The appellant took the
DECISION witness stand for the defense.

BRION, J.: Marlyn Cister (Marlyn) testified that in the afternoon of August 20, 1989,
while seated on the steps of the stairs of their house, she saw Danilo
This is an appeal from the March 10, 2006 Decision1 of the Court of Camba (Danilo) and Modesto Cardona (Modesto) standing by the
Appeals (CA) in CA-G.R. CR-HC No. 01217. The CA affirmed the August 18, roadside.5 Suddenly, the appellant appeared from behind Danilo and
1999 Decision2 of the Regional Trial Court (RTC), Branch 55, Alaminos, stabbed him (Danilo).6 Danilo fell and died on the spot. Thereafter, the
Pangasinan, finding the appellant Clemente Casta y Carolino (appellant) appellant fled.7
guilty beyond reasonable doubt of the crime of murder and sentencing him
to suffer the penalty of reclusion perpetua. Modesto narrated that at around 3:00 o’clock in the afternoon of August
20, 1989, he was walking along the road at Sitio Makber, Goyoden,
ANTECEDENT FACTS Bolinao, Pangasinan when Danilo emerged from a small road and joined
him. Along the way, they met Marcos Gumangan (Marcos) and Angel
The prosecution charged the appellant before the RTC with the crime of Gatchalian (Angel) with whom they exchanged greetings; it was Danilo’s
murder under an Information that states: first time to visit Goyoden after several years. They all walked towards the
west with Marcos and Angel walking behind them. Suddenly, the appellant
That on or about the 20th day of August, 1989 in the afternoon, at appeared from behind Danilo and stabbed him using a double-bladed
barangay Goyoden, municipality of Bolinao, province of Pangasinan, New knife.8 Danilo turned around and then fell; the appellant fled still holding
[sic]Republic of the Philippines and within the jurisdiction of this the knife he used in stabbing Danilo.9
Honorable Court, the above-named accused, with intent to kill and by
means of treachery, did, then and there, willfully, unlawfully and On cross-examination, he testified that he was at about "two (2) arms
feloniously, suddenly and without warning attack and stab DANILO CAMBA length" away from Danilo when he was stabbed, while their other
with a knife, inflicting upon the victim the following injuries to wit: companions were behind them.10

- stab wound, 3 inches in length, 4 inches in depth, located at the back, left Senior Police Officer I Domingo Camba (SPO1 Camba), a member of the
side, 5 inches (level) below the armpit; Bolinao Police Station, narrated that on August 20, 1989, Barangay Captain
Igmedio Gatchalian went to the Bolinao Police Station to report the

89
stabbing of Danilo by the appellant; the incident was entered in the police
blotter as Entry No. 4300.11 He and other police officers promptly went to - Left lung injured and also the heart, causing massive hemorrhages.
Barangay Goyoden and conducted an on-the-spot investigation at the
crime scene.12 The next day (August 21, 1989), the appellant’s uncle came - Stab wound at the left forearm, 3 cm. length and 1 inch depth.
and told him that the appellant was at his (the appellant’s) house. He went
with the appellant’s uncle to the appellant’s house where the appellant Wound is horizontal.20
gave himself up. He forthwith brought the appellant to the police station
for investigation.13 According to Dr. de Perio, the victim’s cause of death was "shock, due to
massive hemorrhage brought about by the stab wounds."21 He added that
At the police station, the appellant confessed to the killing of Danilo after the stab wounds were caused by a sharp-pointed instrument such as a
being informed of his constitutional rights and in the presence of counsel, dagger.22
a certain Atty. Antonio V. Tiong,14 The confession was reduced to writing
and was signed by the appellant and Atty. Tiong.15 The appellant gave a different version of the events which the RTC
summarized as follows
Dionisia Camba (Dionisia), Danilo’s widow, testified that her husband was
an employee of the Office of the Register of Deeds, Lingayen, Pangasinan x x x that on August 20, 1989 in the afternoon, he went to Sitio Matber,
at the time of his death, earning more than P3,000.00 a month.16 They Goyoden, Bolinao, to buy fish; that before reaching the place where he will
have four (4) children and that her husband was the sole breadwinner of buy fish, he met a person whom he did not know.23 This person called him
the family. According to her, she spent a total of P13,500.00 for the funeral by waving his hand and pointing to him. He responded to the call of this
and burial expenses of her husband17 but the receipts for these expenses person by approaching him but when he was near him, this person boxed
have all been lost.18 him but he was not hit. They grappled with each other and he did not
notice if there were other persons around them; that he then noticed that
Dr. Prudencio C. de Perio (Dr. de Perio), the Municipal Health Officer of his knife was already bloody so he ran away; that there was no person
Bolinao, Pangasinan, narrated that he conducted an autopsy on the around that he noticed when he saw his knife bloody; that at that time, he
remains of Danilo at the request of the police,19 and made the following did not know the identity of the person with whom he grappled; that when
findings: he was already detained, he learned that the person was Danilo Camba.24

AUTOPSY REPORT The accused also declared that he was not arrested by the Police, but he
surrendered to Pat. Domingo Camba on August 21, 1989 to whom his
xxxx uncle relayed the information that he wanted to surrender and Pat. Camba
fetched him. While under Police custody, he was investigated by Pat.
III. Findings Camba and said investigation was in writing and signed by him (Exhibit D,
D-1 and D-2), but he said that the document was not his statement
A male cadaver undergoing rigor mortis, around 5’6" in height, and around although it bears his signature.25 He was forced to sign the investigation
145 lbs. in weight. because he was afraid of the investigator who bears the same family name
as the victim but he does not know if they are related; x x x x26
- Stab wound, 3 inches in length, 4 inches in depth, located at the back, left
side, 5 inches (level) below the armpit.

90
On cross-examination, he declared that he did not plan to kill the victim The records of this case were originally transmitted to this Court on
and his killing was accidental.27 He gave his affidavit in the Bolinao dialect appeal. Pursuant to our ruling in People v. Mateo,31 we endorsed the case
in questions and answers (Exhibits D and series); that all the signatures and its records to the CA for appropriate action and disposition.32
bearing his name are his (Exhibit D-4, D-5, D-6); that this document has an
English translation (Exhibit F); x x x that he admitted on direct examination The CA, in a decision dated March 10, 2006, affirmed the RTC decision in
that he stabbed Danilo Camba and he threw the knife into the sea when he toto.
rode on a motorboat and was confused; that he knew that the date when
he stabbed Danilo Camba was August 20, 1989 and in the afternoon but he In his brief,33 the appellant argues that the RTC erred –
did no know the time.28
1. in convicting him of the crime of murder; and
On re-direct examination, the accused declared that the reason for his
stabbing Danilo Camba was that when they met on the road and Camba 2. in imposing upon him the penalty of reclusion perpetua.
was drunk, without any provocation on his part, Camba positioned to box
him so he drew his knife and stabbed him; that he did not know the reason THE COURT’S RULING
why Camba wanted to box him; that at that time, Camba was with one
Fedelino Gatchalian; that he had no previous grudge with Camba because We resolve to deny the appeal but we modify the penalty imposed and the
he did not know him; that he did not see the victim with any weapon and amount of the awarded indemnities.
he did not know if he was armed or not; and that he is bigger than
Camba.29 [Footnotes referring to the pertinent parts of the record Sufficiency of Prosecution Evidence
supplied]
An established rule in appellate review is that the trial court’s factual
The RTC convicted the appellant of the crime of murder in its decision of findings, including its assessment of the credibility of the witnesses and the
August 18, 1999 as follows: probative weight of their testimonies, as well as the conclusions drawn
from the factual findings, are accorded respect, if not conclusive effect.
Wherefore, in view of the foregoing considerations, the Court hereby These actual findings and conclusions assume greater weight if they are
renders judgment, finding the accused Clemente Casta y Carolino, of affirmed by the CA. Despite the enhanced persuasive effect of the initial
Barangay Goyoden, Bolinao, Pangasinan, guilty beyond reasonable doubt RTC factual ruling and the results of the CA’s appellate factual review, we
of the crime of Murder for the death of Danilo Camba, of the same place, nevertheless fully scrutinized the records of this case as the penalty of
and hereby sentences him to suffer the penalty of reclusion perpetua and reclusion perpetua that the lower courts imposed on the accused demands
to indemnify the heirs of the deceased in the amount of P50,000.00 as no less than this kind of scrutiny.34
compensation for the death of the victim, P100,000.00 as moral and
exemplary damages and P13,000.00 as actual damages. A striking feature of this case is that the appellant did not deny that he
stabbed Danilo. He expressly made this admission in his testimony of
With costs de oficio. January 18, 1995:

SO ORDERED.30 ATTY. ROMIE V. BRAGA:

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Q: In your direct-examination, you admitted having stabbed the deceased
Danilo Camba, will you tell the Court where was that knife which you used Q: After Gumangan left and you continued walking, were you able to reach
in stabbing Danilo Camba? the place where you were to buy fish?

CLEMENTE CASTA: CLEMENTE CASTA:

A: I left it in the sea, sir. A: No, sir.

Q: You mean you threw it into the sea? Q: Why?

A: Yes, sir. A: I met the person whom I don’t know, sir.

Q: Will you tell the Court why you threw the knife which you used in xxx
stabbing Danilo Camba into the sea?
Q: What did you do when you saw that person by the roadside after you
A: Because I rode in a motor boat and then I threw it into the sea, sir. have seen Gumangan?

Q: And will you tell the Court why you threw or drop it into the sea? A: None, sir, he called me.

A: Because I was confused, sir. xxx

Q: Now will you tell us what time was it more or less when you stabbed Q: Will you tell us what you heard when you said that person called you?
Danilo Camba?
A: He called me by waving his hand and then he pointed me [sic].
A: I do not know the time, sir.
Q: After that, did you respond to his hand-waving by getting near?
Q: But it was in the afternoon of August 20, 1989, is that correct?
A: When I got near him, he boxed me, sir.
A: Yes, sir. x x x35 [Emphasis ours]
Q: Were you hit when he boxed you?
This in-court admission confirms the separate admission he made at the
Bolinao police station on August 22, 1989 in the presence of counsel, Atty. A: No, sir.
Antonio V. Tiong.
Q: What happened next after that person boxed you?
The petitioner sought to exculpate himself by claiming that the stabbing
was an act of self-defense. In his testimony of May 3, 1994, he claimed: A: We fought each other by grappling, sir.

ATTY. TEOFILO A. HUMILDE: xxx

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1. Anyone who acts in defense of his person or rights, provided that the
Q: When you grappled with each other, who was the first who grappled following circumstances concur:
against whom?
First. Unlawful aggression;
A: He, sir.
Second. Reasonable necessity of the means to prevent or repel it;
Q: What happened when he grappled with you and you grappled with him,
what happened next? Third. Lack of sufficient provocation on the part of the person defending
himself.
A: I did not notice that my knife has already blood so I ran away.
xxx
xxx
There is unlawful aggression when the peril to one’s life, limb or right is
Q: Did you come to know him later, that person whom you grappled with? either actual or imminent. There must be actual physical force or actual
use of a weapon. It is a statutory and doctrinal requirement to establish
A: When I was in prison, sir. self-defense that unlawful aggression must be present. It is a condition
sine qua non; there can be no self-defense, complete or incomplete, unless
Q: Who was that? the victim commits unlawful aggression against the person defending
himself.38
A: Danilo Camba, sir.36 [Emphasis ours]
We find that the appellant miserably failed to prove that he had to defend
Like the RTC, we do not believe that the appellant acted in self-defense. himself against an unlawful aggression. Aside from his own claim (which
we find under the circumstances to be self-serving), the appellant did not
As a rule, the prosecution bears the burden of establishing the guilt of the present any other evidence to corroborate his claim that the victim boxed
accused beyond reasonable doubt. However, when the accused admits the him when they met on the road in Sitio Makber, Barangay Goyoden,
killing and, by way of justification, pleads self-defense, the burden of Bolinao, Pangasinan. As against his bald claim, two eye-witnesses - Marlyn
evidence shifts; he must then show by clear and convincing evidence that and Modesto – saw no unlawful aggression by the victim against the
he indeed acted in self-defense. For that purpose, he must rely on the appellant. Marlyn testified that at the time he was stabbed, Danilo was
strength of his own evidence and not on the weakness of the prosecution’s merely standing near the roadside fronting her (Marlyn’s) house. Modesto,
case.37 on the other hand, narrated that, he, Danilo and several others were
simply walking slowly along the Sitio Makber, Goyoden road towards the
Article 11(1) of the Revised Penal Code spells out the elements that the west when the appellant suddenly approached from behind and stabbed
accused must establish by clear and convincing evidence to successfully Danilo.
plead self-defense. The Article provides:
We find no reason to disbelieve these straightforward narration of the
Art. 11. Justifying Circumstances. – The following do not incur any criminal events surrounding the stabbing that led to Danilo’s death. Nor do we see
liability: anything on the record showing any improper motive that would lead the
witnesses to testify as they did. In fact, the appellant never imputed any

93
such motive on Marlyn and Modesto. The established rule, laid down in an unguarded position: from his rear so that the unsuspecting victim had
already long line of cases, is that in the absence of evidence showing any practically no chance to defend himself. The location of the thrust – at the
reason or motive for the prosecution witnesses to falsely testify, their left side, below the armpit – shows that the heart was the targeted organ
testimony can be given full faith and credit.39 Thus, no actual or imminent to immediately incapacitate the victim and render him unable to defend
threat to the appellant’s life or limb existed when he stabbed Danilo to against or respond to the attack. As the evidence shows, the victim simply
death. fell immediately after being stabbed, in the way that a raging bull
immediately crumbles to its knees, spent and harmless, upon being hit by
The Crime Committed the matador’s sword thrust, delivered from above, between its shoulder
blades, targeting the heart. These mode, manner and execution of the
Article 248 of the Revised Penal Code defines the crime of murder as attack, to our mind, bespeak of treachery.
follows:
Voluntary Surrender
Article 248. Murder. – Any person who not falling within the provisions of
Article 246, shall kill another, shall be guilty of murder and shall be Voluntary surrender, properly undertaken, is a mitigating circumstance
punished by reclusion temporal in its maximum period to death, if that lowers the imposable penalty. It is present when the following
committed with any of the following attendant circumstances: elements concur: a) the offender has not been actually arrested; b) the
offender surrenders himself to a person in authority or to the latter’s
1. With treachery x x x x 40 agent; and c) the surrender is voluntary. To be sufficient, the surrender
must be spontaneous and made in a manner clearly indicating the intent of
Treachery, the qualifying circumstance alleged against the appellant, exists the accused to surrender unconditionally, either because he acknowledges
when an offender commits any of the crimes against persons, employing his guilt or wishes to save the authorities the trouble and expense
means, methods or forms which tend directly or especially to ensure its attendant to the efforts of searching for and capturing him.43
execution, without risk to the offender, arising from the defense that the
offended party might make.41 This definition sets out what must be shown We find all the requisites present in this case. The appellant testified that
by evidence to conclude that treachery existed, namely: (1) the he had asked his uncle, Ediom Casta, to go to the police to signify his
employment of such means of execution as would give the person intention to surrender. At around 7:00 o’clock in the morning of August 21,
attacked no opportunity for self-defense or retaliation; and (2) the 1989, SPO1 (then Patrolman) Camba came to his house to bring him back
deliberate and conscious adoption of the means of execution. To reiterate, to the Bolinao Police Station for investigation. The appellant’s testimony
the essence of qualifying circumstance is the suddenness, surprise and the that he voluntarily surrendered was corroborated by the November 21,
lack of expectation that the attack will take place, thus depriving the victim 1991 testimony of SPO1 Camba, which we quote:
of any real opportunity for self-defense while ensuring the commission of
the crime without risk to the aggressor.42 ATTY. ROMIE V. BRAGA

The evidence in the case shows that Danilo was by the roadside when the Q: Now, as police investigator, will you inform the Court if Clemente Casta,
appellant, wielding a deadly weapon - a double-bladed knife - suddenly the accused herein, ever presented himself to your office?
appeared from behind and stabbed him. The unsuspecting victim was hit
at the back below the left armpit, puncturing his heart and lungs. As the DOMINGO CAMBA
witnesses testified, the attack was sudden and while the victim was in an

94
A: Yes, sir.
In light of the greater penalty that attaches under the amendment, the
Q: And in relation with this incident and that appearance of Clemente previous penalty of reclusion temporal in its maximum period to death will
Casta in your office, was it reflected and entered in your police blotter? have to be imposed in order not to run afoul of the constitutional
prohibition against ex post facto laws. Under Section 22 of Article III of the
A: Yes, sir. 1987 Constitution, no ex post facto law or bill of attainder shall be enacted.
An ex post facto law, among others, is one that changes the penalty and
Q: Now, will you go over your police blotter and read into the record the inflicts a greater punishment than what the law annexed to the crime
fact of the appearance of Clemente in your office in relation with this when committed46 - the situation that would obtain if the amendment
incident? under Republic Act No. 7659 would be applied.

A: On entry 4302 21 August, 1989 07 hundred hours Clemente Casta y Considering that the appellant has in his favor the mitigating circumstance
Carolino, 21 years old, single, fisherman, resident of Goyuden Bolinao, of voluntary surrender with no aggravating circumstance to offset it, the
Pangasinan was brought into this station for investigation following his imposable penalty should be in the minimum period, i.e., reclusion
voluntary surrender to have allegedly killed Danilo Camba on or about temporal in its maximum period. Under the Indeterminate Sentence
1500 hundred hours 20 August 1989 in Goyuden this municipality.44 Law,47 the maximum sentence shall be reclusion temporal in its maximum
period (17 years, 4 months and 1 day to 20 years) and the minimum shall
That the appellant surrendered only in the morning of August 21, 1989 (or be taken from the next lower penalty, which is prision mayor maximum to
a day after the stabbing incident) does not diminish nor affect the reclusion temporal medium (10 years and 1 day to 17 years and 4 months).
voluntariness of his surrender. For voluntary surrender to mitigate an
offense, it is not required that the accused surrender at the first Civil Liability
opportunity.45 Here, the appellant went voluntarily went with SPO1
Camba to the police station within a day after the killing to own up to the The RTC awarded the amount of P13,000.00 to the victim’s heirs as actual
killing. Thus, the police did not devote time and effort to the investigation damages in light of established jurisprudence that allows only expenses
of the killing and to the search and capture of the assailant. duly supported by receipts as proof of actual damages.48 This RTC ruling
has however been overtaken by our rulings in the landmark cases of
Based on these considerations, we hold that the mitigating circumstance of People v. Abrazaldo49 and People v. Villanueva.50 In Abrazaldo, we ruled
voluntary surrender should be appreciated in appellant’s favor. that where the amount of the actual damages cannot be determined
because of the absence of supporting and duly presented receipts but
The Proper Penalty evidence confirming the heirs’ entitlement to actual damages, temperate
damages in the amount of P25,000.00 may be awarded. This ruling was
The Information in this case indicates that the crime of murder was reiterated, with slight modification in Villanueva, where we held that when
committed by the appellant on August 20, 1989 which was before the the actual damages proven by receipts during the trial amount to less than
effectivity of Republic Act No. 7659 on December 31, 1993 amending P25,000.00, we can nevertheless award temperate damages of
Article 248 of the Revised Penal Code on murder, raising the penalty to P25,000.00. Thus, the heirs’ entitlement is P25,000.00 of temperate
reclusion perpetua to death. Prior to its amendment the penalty for the damages.
crime of murder under Article 248 of the Revised Penal Code was reclusion
temporal in its maximum period to death.

95
We also modify the award of P100,000.00 as moral and exemplary
damages which the RTC lumped together. Moral damages are mandatory (5) the appellant is ORDERED to PAY the victim’s heirs the amount of
in cases of murder and homicide without need of allegation and proof P25,000.00 as temperate damages.
other than the death of the victim. We find the award of P50,000.00 as
moral damages in order in accordance with established jurisprudence. 51 Costs against the appellant Clemente Casta.

The award of exemplary damages is justified by the duly proven qualifying SO ORDERED.
circumstance of treachery; when a crime is committed with an aggravating
circumstance, either qualifying or generic, an award of P25,000.00 as
exemplary damages is justified under Article 2230 of the New Civil Code.52 G.R. No. 182750 January 20, 2009

We cannot award loss of earning capacity to the victim’s heirs since no RODEL URBANO, Petitioner,
documentary evidence was presented to substantiate this claim. As a rule, vs.
documentary evidence should be presented to substantiate a claim for PEOPLE OF THE PHILIPPINES, Respondent.
damages for loss of earning capacity. While there are exceptions to the
rule, these exceptions do not apply as the victim, Danilo, was an employee DECISION
of the Office of the Register of Deeds of Lingayen, Pangasinan when he
died; he was not a worker earning less than the minimum wage under the VELASCO, JR., J.:
prevailing labor laws.53
This petition for review under Rule 45 seeks to reverse and set aside the
We affirm the P50,000.00 death indemnity awarded to the victim’s heirs, Decision1 dated January 25, 2008 of the Court of Appeals (CA) in CA-G.R.
in accordance with prevailing jurisprudence.54 CR No. 25371 which affirmed with modification the April 30, 2001
Decision2 of the Regional Trial Court (RTC), Branch 39 in Lingayen,
WHEREFORE, in light of all the foregoing, we hereby AFFIRM the March 10, Pangasinan in Criminal Case No. L-5028. The RTC found petitioner Rodel
2006 Decision of the Court of Appeals in CA-G.R. CR-HC Urbano guilty beyond reasonable doubt of the crime of Homicide.

No. 01217 with the following MODIFICATIONS: The Facts

(1) the appellant is sentenced to suffer the indeterminate penalty of In an Information filed before the RTC, petitioner was charged with
imprisonment for (10) years and one (1) day of prision mayor maximum, as Homicide, committed as follows:
minimum, to seventeen (17) years four (4) months and one (1) day of
reclusion temporal maximum, as maximum; That on or about the 28th of September 1993 in the evening, in Barangay
Poblacion, Municipality of Lingayen, Province of Pangasinan, Philippines
(2) moral damages is REDUCED to P50,000.00; and within the jurisdiction of this Honorable Court, the above-named
accused, with intent to kill, did then and there willfully, unlawfully and
(3) exemplary damages is REDUCED to P25,000.00; feloniously attack, assault, hit and maul Brigido Tomelden, inflicting upon
him mortal injuries and as borne out from the autopsy report the following
(4) the award of actual damages is DELETED; and findings:

96
heated altercation in the course of which Tomelden hurled insulting
EXTERNAL FINDINGS: remarks at petitioner. Reacting, petitioner asked why Tomelden, when
drunk, has the penchant of insulting petitioner.
A- Softened portion of the scalp over (R) occipito-temporal area about 5
inches above and posterior to the (R) ear. The exchange of words led to an exchange of blows. Cooler heads
succeeded in breaking up the fight, but only for a brief moment as the
B- Clotted blood over the (R) occipito-temporal area. protagonists refused to be pacified and continued throwing fist blows at
each other. Then petitioner delivered a "lucky punch," as described by
C- No lacerations noted. eyewitness Orje Salazar, on Tomelden’s face, which made Tomelden
topple down. Tomelden was on the verge of hitting his head on the ground
INTERNAL FINDINGS: had their companions not caught him and prevented the fall. The blow,
however, caused Tomelden’s nose to bleed and rendered him
A- On opening the skull there is oozing of dark colored blood from the unconscious.
brain substances.
Petitioner and his other co-workers brought Tomelden to the office of the
B- More darked blood vessels at the (L) side of the brain. LIWAD general manager where he spent the night. He remained in the
compound the following day, September 29, 1993. Upon arriving home at
CAUSE OF DEATH: around 6:00 p.m. of that day, Tomelden informed his wife, Rosario, of the
fight the previous night and of his having been rendered unconscious. He
Cardio-respiratory arrest secondary to cerebral concussion with resultant complained of pain in his nape, head, and ear which impelled Rosario to
cerebral hemorrhage due to mauling incident. immediately bring him to the Lingayen Community Hospital where Dr.
Daisy Arellano examined him and treated his lacerated left index finger,
Which directly caused his death, to the damage and prejudice of the heirs contusions, and hematoma at the right cerebrum.
of the said Brigido Tomelden.
On October 2 and 7, 1993, Tomelden went back to the hospital
CONTRARY to Article 249 of the Revised Penal Code. complaining of dizziness, headache, and other pains. The attending doctors
observed the patient to be in a state of drowsiness and frequent vomiting.
Petitioner, when arraigned, pleaded not guilty to the charge. Following the On October 8, 1993, Rosario brought Tomelden to the Sison Memorial
parties’ waiver of pre-trial, trial on the merits then ensued. Provincial Hospital in Dagupan City, where the attending physician, Dr.
Ramon Ramos, diagnosed Tomelden suffering from "brain injury,
As summarized in the decision subject of review, the prosecution’s secondary to mauling to consider cerebral hemorrhage."3
evidence established the following facts:
Tomelden was confined in the provincial hospital until 3:00 p.m. of
On September 28, 1993, at around 8:00 p.m., the victim Brigido Tomelden October 10, 1993, and, due to financial constraints, was thereafter
and petitioner were at the compound of the Lingayen Water District discharged despite signs negating physical condition improvement. Upon
(LIWAD) in Lingayen, Pangasinan, having just arrived from a picnic in the reaching their house, however, Tomelden again complained of extreme
nearby town of Bugallon, Pangasinan, where, with some other co-workers, head pain, prompting his wife to bring him back to the Lingayen
they drunk beer in a restaurant. While inside the compound, the two had a Community Hospital where Dr. Arellano again attended to him. This time,

97
things turned for the worst, the doctor noting that Tomelden appeared to WHEREFORE, in the light of the foregoing, the appeal of the accused-
be semi-conscious, sleepy, uncooperative, and not responding to any appellant is DISMISSED. The decision appealed from is AFFIRMED with
stimulant. Tomelden died at 9:00 p.m. of that day due, per Dr. Arellano, to MODIFICATION that an award of P50,000.00 moral damages is GRANTED.
"cardio-respiratory arrest secondary to cerebral concussion with resultant
cerebral hemorrhage due to mauling incident." Remand of the records should immediately follow finality for the
consequent execution of the decision.5
The defense presented petitioner who denied having any intention to kill,
asserting that hypertension, for which Tomelden was receiving treatment, The appellate court held that the commission by petitioner of the crime of
was the cause of the latter’s death. homicide, as defined and penalized under Article 2496 of the Revised Penal
Code (RPC), had been proved beyond moral certainty of doubt, pointing to
The Ruling of the RTC the lucky punch as the proximate cause of Tomelden’s hospitalization and
ultimately his death. And like the RTC, the CA found no qualifying
On April 30, 2001, the RTC rendered judgment finding petitioner guilty as circumstance to increase or lower the penalty.
charged. The fallo of the RTC’s decision reads:
Following the denial of petitioner’s motion for reconsideration, per the CA
WHEREFORE, the prosecution having established beyond reasonable doubt Resolution7 of April 24, 2008, he interposed this petition.
the guilt of the accused of the crime of HOMICIDE as defined and penalized
under Art. 249 of the Revised Penal Code, this Court in the absence of any The Issues
modifying circumstances, hereby sentences said accused to suffer the
indeterminate prison term of eight (8) years and one (1) day of Prision On essentially the same issues raised before the CA, petitioner now urges
Mayor as minimum to seventeen (17) years and four (4) months of the Court to set aside the appealed decision, or at least modify it,
Reclusion Temporal as maximum and to indemnify the legal heirs of the maintaining that the appellate court:
victim in the amount of PHP50,000.00, plus cost of the suit.
I. x x x erred in affirming the decision of the [RTC] finding [him] guilty
The period of preventive imprisonment suffered by the accused shall be beyond reasonable doubt of the crime charged.
credited in full in the service of his sentence in accordance with Art. 29 of
the Revised Penal Code.4 II. x x x erred in not appreciating the mitigating circumstances of sufficient
provocation on the part of the victim and lack of intent to commit so grave
Therefrom, petitioner appealed to the CA, his recourse docketed as CA- a wrong in favor of the petitioner.8
G.R. CR No. 25371.
The Court’s Ruling
The Ruling of the CA
The petition is partly meritorious.
On January 25, 2008, the CA rendered a decision, affirming the conviction
of petitioner, but awarding moral damages to the heirs of Tomelden, Homicide Duly Proved
disposing as follows:
It is petitioner’s threshold posture that the fistic injury Tomelden sustained
was not "the main underlying cause of his death."9 In this regard,

98
petitioner draws attention to the fact that the fist fight in question It was through the direct accounts of the prosecution witnesses of the
happened on September 28, 1993. Tomelden, however, died only on events that transpired during the fisticuff incident x x x more specifically
October 10, 1993 or 12 days thereafter and that, during the intervening the landing of the "lucky punch" on the face of [Tomelden], taken together
days, particularly September 29, 1993, the deceased regularly reported for with the result of the medical examinations and autopsy report which
work. Moreover, petitioner avers that days prior to the fateful incident of described the death of the victim as "cardio-respiratory arrest secondary
September 28, 1993, Tomelden failed to come to work as he was suffering to cerebral concussion with resultant cerebral hemorrhage due to mauling
from malignant hypertension and that this circumstance greatly engenders incident" that we are convinced that the "lucky punch" was the proximate
doubt as to the proximate cause of the victim’s death. Petitioner, thus, cause of [Tomelden’s] death. The prosecution had satisfactorily proven
contends that he could only be adjudged guilty of physical injuries.10 that it was only after the incident that transpired on September 28, 1993
that the victim was hospitalized on several occasions until he expired,
We are not persuaded. twelve days later x x x. It is moreover of no consequence whether the
victim was able to report for work during the intervening days x x x.
The prosecution witness, Salazar, testified about petitioner’s lucky punch
hitting Tomelden right smack on the face. And even if Tomelden’s head did We find no reason to depart from the doctrinal rule that great weight is
not hit the ground as his co-workers averted that actuality, that punch accorded the factual findings of the trial court, particularly with respect to
gave him a bleeding nose and rendered him unconscious right after the the ascertainment of the credibility of witnesses. There was absence of any
September 28, 1993 fight. From then on, Tomelden was in and out of the ill motive on the part of x x x Salazar who in fact testified that he was a
hospital complaining of headache, among other pains, until his demise on friend of both [petitioner] and [Tomelden]; more so on the part of the
October 10, 1993, or 12 days after the blow that made Tomelden attending physicians.11 x x x
unconscious.
Petitioner’s suggestion that Tomelden succumbed to heart ailment and/or
Significantly, Dr. Arellano testified conducting an autopsy on the body of that his death was the result of his malignant hypertension is untenable,
Tomelden and stressed that the "softened portion of the scalp over (R) given that the post-mortem report yields no positive indication that he
occipito-temporal area about 5 inches above and posterior to the (R) ear" died from such malady.
of the victim could have been caused by a fist blow. She also opined that
the fist blow which landed on Tomelden’s head could have shaken his Mitigating Circumstances Present
brain which caused the cerebral concussion; and that the cause of the
victim’s death was "cardio-respiratory arrest secondary to cerebral Petitioner next contends that the mitigating circumstances of no intention
concussion with resultant cerebral hemorrhage due to mauling incident." to commit so grave a wrong and sufficient provocation on the part of the
victim ought to be appreciated in petitioner’s favor.
The combined effects of the testimonies of Salazar and Dr. Arellano,
buttressed by that of Rosario who related about her husband’s post On this score, we agree with petitioner.
September 28, 1993 severe head pain, clearly establish beyond cavil the
cause of Tomelden’s death and who was liable for it. Paragraphs 3 and 4 of Art. 13, RPC provide as follows:

The CA observed aptly: Art. 13. Mitigating circumstances.––The following are mitigating
circumstances:

99
xxxx When so informed, Tomelden insulted petitioner, telling the latter he had
no business stopping him from further drinking as he was paying for his
3. That the offender had no intention to commit so grave a wrong as that share of the bill. Chastised, petitioner returned to his table to report to
committed. Navarro. At that time, petitioner saw that Tomelden had already
consumed 17 bottles of beer. In all, the group stayed at the picnic place for
4. That sufficient provocation or threat on the part of the offended party three and a half hours before returning to the LIWAD.
immediately preceded the act.
Upon reaching the LIWAD compound, Tomelden allegedly slapped and
When the law speaks of provocation either as a mitigating circumstance or hurled insults at him, calling him "sipsip" just to maintain his employment
as an essential element of self-defense, the reference is to an unjust or as Navarro’s tricycle driver. Tomelden allegedly then delivered several fist
improper conduct of the offended party capable of exciting, inciting, or and kick blows at petitioner, a couple of which hit him despite his evasive
irritating anyone;12 it is not enough that the provocative act be actions. Petitioner maintained that he only boxed the victim in retaliation,
unreasonable or annoying;13 the provocation must be sufficient to excite landing that lucky punch in the course of parrying the latter’s blows.
one to commit the wrongful act14 and should immediately precede the
act.15 This third requisite of self-defense is present: (1) when no The following testimony of Salazar attests to the provocative acts of
provocation at all was given to the aggressor; (2) when, even if provocation Tomelden and to his being the aggressor:
was given, it was not sufficient; (3) when even if the provocation was
sufficient, it was not given by the person defending himself; or (4) when PROSECUTOR CHIONG
even if a provocation was given by the person defending himself, it was
not proximate and immediate to the act of aggression.16 Q After you heard from the accused those remarks, what if any did the
victim replied if any?
In the instant case, Tomelden’s insulting remarks directed at petitioner and
uttered immediately before the fist fight constituted sufficient WITNESS
provocation. This is not to mention other irritating statements made by the
deceased while they were having beer in Bugallon. Petitioner was the one A They exchanged angry words, sir.
provoked and challenged to a fist fight.
Q What were these words?
Petitioner’s unrebutted testimony on the events immediately preceding
the fisticuff and earlier dovetails with the testimony of Salazar. A Rodel Urbano said, "When you’re already drunk, you keep on insulting
me."
In gist, petitioner testified being, in the afternoon of September 28, 1993,
in the nearby town of Bugallon for a picnic. He was with Tomelden and Q And what was the reply if any?
several others, including Dominador Navarro, Chairperson of LIWAD. At a
restaurant in Bugallon, the group ordered goat’s meat and drank beer. A ‘Akina tua lanti".
When it was time to depart, Navarro asked petitioner to inform Tomelden,
then seated in another table, to prepare to leave. PROS. CHIONG

Q Who said that?

100
WITNESS Q When the victim and this accused had this fight, fist fight, they
exchanged blows, but there was this lucky punch that hit the victim
A It was Brigido Tomelden, sir. because the victim fall down, is that correct?

Q And what transpired next? A When I stop pacifying them x x x, I saw Biring the late Brigido Tomelden,
he was much aggressive than the accused, sir.
A After that they exchange words, sir. " If you like we will have a fist fight"
he said. Q You mean that although it was the victim who was more aggressive than
the accused here, he also [threw] punches but sometime some of his
Q Who said that? punches most of which did not hit the victim?

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

Q At that time, were you already inside the compound of the LIWAD? Q Because he tried to parry the blow of the Brigido Tomelden, when the
accused throw punches, the punch was directed to the victim but most of
A Yes, sir. them did not hit the victim, is that what you saw?

Q After the victim allegedly told the accused, "If you want a fist fight," A Yes, sir.19 (Emphasis added.)
what transpired next?
It is abundantly clear from the above transcript that the provocation came
A Rodel Urbano said, "if it is a fist fight we fight."17 from Tomelden. In fact, petitioner, being very much smaller in height and
heft, had the good sense of trying to avoid a fight. But as events turned
Q And when you were already in the compound of LIWAD Office, Brigido out, a fisticuff still ensued, suddenly ending when petitioner’s lucky punch
Tomelden was challenging the accused for a fist fight? found its mark. In People v. Macaso,20 a case where the accused police
officer shot and killed a motorist for repeatedly taunting him with defiant
A Yes, sir. words, the Court appreciated the mitigating circumstance of sufficient
provocation or threat on the part of the offended party immediately
Q And the accused refused to accept the challenge? preceding the shooting. The Court had the same attitude in Navarro v.
Court of Appeals,21 a case also involving a policeman who killed a man
A Yes because Mr. Brigido Tomelden is very much bigger than Mr. Rodel after the latter challenged him to a fight. Hence, there is no rhyme or
Urbano. He is stouter than the accused. reason why the same mitigating circumstance should not be considered in
favor of petitioner.
Q But finally the fist fight took place?
Moreover, the mitigating circumstance that petitioner had no intention to
A Yes, sir.18 commit so grave a wrong as that committed should also be appreciated in
his favor. While intent to kill may be presumed from the fact of the death
PROS. CHIONG of the victim, this mitigating factor may still be considered when attendant

101
facts and circumstances so warrant, as in the instant case. Consider: The prescribed penalty for homicide under Art. 249 of the RPC is reclusion
Petitioner tried to avoid the fight, being very much smaller than Tomelden. temporal or from 12 years and one day to 20 years. With the appreciation
He tried to parry the blows of Tomelden, albeit he was able, during the of two mitigating circumstances of no intention to commit so grave a
scuffle, to connect a lucky punch that ended the fight. And lest it be wrong as that committed and of sufficient provocation from the victim,
overlooked, petitioner helped carry his unconscious co-worker to the office and the application of par. 5 of Art. 64, RPC, the imposable penalty would,
of the LIWAD’s general manager. Surely, such gesture cannot reasonably thus, be the next lower penalty prescribed for homicide and this should be
be expected from, and would be unbecoming of, one intending to commit prision mayor or from six years and one day to 12 years. Consequently,
so grave a wrong as killing the victim. A bare-knuckle fight as a means to with the application of the Indeterminate Sentence Law, petitioner ought
parry the challenge issued by Tomelden was commensurate to the to be incarcerated from prision correccional as minimum and prision
potential violence petitioner was facing. It was just unfortunate that mayor as maximum. In view of the circumstances of the case, considering
Tomelden died from that lucky punch, an eventuality that could have that the petitioner never meant or intended to kill the victim, a prison
possibly been averted had he had the financial means to get the proper term of eight (8) years and one (1) day of prision mayor as maximum
medical attention. Thus, it is clear that the mitigating circumstance of "no period is proper while the period of two (2) years and four (4) months of
intention to commit so grave a wrong as that committed" must also be prision correccional as minimum period is reasonable.
appreciated in favor of petitioner while finding him guilty of homicide. That
petitioner landed a lucky punch at Tomelden’s face while their co-workers We find no reason to modify the award of civil indemnity and moral
were trying to separate them is a compelling indicium that he never damages.
intended so grave a wrong as to kill the victim.
WHEREFORE, the CA Decision dated January 25, 2008 in CA-G.R. CR No.
Withal, with no aggravating circumstance and two mitigating 25371 is, in the light of the presence and the appreciation of two
circumstances appreciable in favor of petitioner, we apply par. 5 of Art. 64, mitigating circumstances in favor of petitioner, hereby MODIFIED by
RPC, which pertinently provides: decreasing the term of imprisonment. As thus modified, petitioner Rodel
Urbano is hereby sentenced to serve an indeterminate prison term of from
Art. 64. Rules for the application of penalties which contain three periods.– two (2) years and four (4) months of prision correccional, as minimum, to
–In cases in which the penalties prescribed by law contain three periods, eight (8) years and one (1) day of prision mayor, as maximum, with
whether it be a single divisible penalty or composed of three different whatever imprisonment he has already served fully credited in the service
penalties, each one of which forms a period in accordance with the of this sentence. The rest of the judgment is hereby AFFIRMED.
provisions of Articles 76 and 77, the courts shall observe for the application
of the penalty the following rules, according to whether there are or are no No pronouncement as to costs.
mitigating or aggravating circumstances:
SO ORDERED.
xxxx

5. When there are two or more mitigating circumstances and no [G.R. Nos. 129961-62. August 25, 2003]
aggravating circumstances are present, the court shall impose the penalty
next lower to that prescribed by law, in the period that it may deem THE PEOPLE OF THE PHILIPPINES, appellee, vs. VIRGILIO CAABAY,
applicable, according to the number and nature of such circumstances. ESTEBAN CAABAY, RODRIGO LUDRING CAABAY, VALENTINO COOL
CAABAY and ISIDRO BOYET CAABAY, accused,

102
That on or about the 27th day of June, 1994, at around 5:00 oclock in the
VIRGILIO CAABAY, ESTEBAN CAABAY, VALENTINO COOL CAABAY and afternoon in Sitio Lamis, Barangay San Agustin, Municipality of San Jose,
ISIDRO BOYET CAABAY, appellants. Province of Occidental Mindoro, Philippines and within the jurisdiction of
this Honorable Court, the accused being then armed with sharp bladed
DECISION instruments, with intent to kill and taking advantage of their superior
strength, conspiring and confederating together and helping one another,
CALLEJO, SR., J.: did then and there willfully, unlawfully and feloniously attack, assault and
hack with the said weapons one Paulino Urbano, thereby inflicting upon
This is an automatic review of the Decision[1] of the Regional Trial Court of the latter serious wounds which caused his untimely death.
San Jose, Occidental Mindoro, Branch 46, convicting the appellants with
double murder for the deaths of Paulino Urbano and his son Aliguer CONTRARY TO LAW.[3]
Urbano, sentencing them to double death by lethal injection, and directing
them to pay, jointly and severally, civil indemnity in the total amount of On November 9, 1994, the appellants, assisted by counsel, were arraigned
P100,000.00. and entered their respective pleas of not guilty. Accused Rodrigo Caabay
remained at large. A joint trial thereafter ensued.
The Indictments
The Case for the Prosecution[4]
On August 9, 1994, an Information was filed with the RTC of Occidental
Mindoro, docketed as Criminal Case Nos. R-3733, charging the appellants The spouses Paulino Urbano and Adelina Urbano, were residents of Sitio
and Rodrigo Caabay with murder, qualified by abuse of superior strength, Lamis, Barangay San Agustin, San Jose, Occidental Mindoro. About forty
the accusatory portion of which reads: meters away from their house was Paulinos four-hectare farmland. The
house of their 27-year-old son Aliguer Urbano[5] and his wife Arlene, was
That on or about the 27th day of June, 1994 at around 5:00 oclock in the about fifteen meters away. The 64-year-old Paulino could not walk without
afternoon in Sitio Lamis, Barangay San Agustin, Municipality of San Jose, the use of a cane because of a foot injury. Adjacent to the couples property
Province of Occidental Mindoro, Philippines and within the jurisdiction of was a two-hectare farmland cultivated by accused Virgilio Caabay and his
this Honorable Court, the accused being then armed with sharp bladed sons accused Esteban Caabay, Rodrigo (Ludring) Caabay, Valentino (Cool)
instruments, with intent to kill and taking advantage of their superior Caabay and Isidro (Boyet) Caabay. Banana trees were planted within the
strength, conspiring and confederating together and helping one another, periphery of the common boundary of the two parcels of land. Because of
did then and there willfully, unlawfully and feloniously attack, assault and a recurring dispute over the boundary of the farmlands they respectively
hack with the said weapons one Aliguer Urbano, thereby inflicting upon cultivated, Paulino lodged a complaint against accused Virgilio with
the latter serious wounds which caused his untimely death. Barangay Captain Victory Sualog. On May 31, 1993, the barangay captain
resolved the dispute and delineated the boundary of the farmlands. On
CONTRARY TO LAW. [2] March 14, 1994, Adelina complained to the barangay captain that their
house was burned.
Another Information was filed with the said RTC docketed as Criminal Case
No. 3734, charging the same appellants and Rodrigo Caabay with murder, On June 27, 1994, at 5:30 p.m., Paulino and Adelina were at their farmland.
the accusatory portion of which reads: Paulino was cutting the overgrown grasses in the middle portion of the
land using a bolo. After a while, he rested and smoked a cigarette while

103
seated. Adelina was cooking dahon ng sili. Momentarily, Adelina told her The next day, Municipal Health Officer Dr. Hurley G. delos Reyes of San
husband that it was getting late and they should be heading home. Paulino Jose, performed an autopsy on the cadavers of the victims and signed two
told his wife to go ahead as his clothes were drenched in sweat and he was autopsy reports. The doctor made the following findings on his
waiting for them to dry. Despite her proddings, Paulino refused to go examination of Paulinos body:
home.
...
Accused Rodrigo Caabay sauntered by and commented to Paulino that he
was clearing a wide portion of the land. Paulino replied that the farmland II POST MORTEM FINDINGS:
was very wide and it was about time that he cleared it. Rodrigo then
inquired from Adelina what she was doing and she answered that she was 1. Incised wound, 13 cms. x 7 cms., left scapular area incising the collar
cooking. Rodrigo left. Adelina also decided to go home and left her bone;
husband behind.
2. Incised wound, (crosswise) at the ear, face and nose; 14 cms. x 2 cms.;
When Adelina was barely three meters away from their house, she met her
son Aliguer, armed with a bolo, rushing to where his father was. When 3. Incised wound, 6 cms. x 1.2 cms. at the left parietal area;
Adelina looked back, she was shocked to see accused Virgilio and his
children - Esteban, Rodrigo, Valentino and Isidro - each armed with bolos, 4. Incised wound, 8 cms. x 1.5 cms. at the left temporal area;
hacking Paulino on the neck and the right hand. Accused Rodrigo hacked
Paulino on his back. The victim fell to the ground. Aliguer scampered away 5. Incised wound, 3 cms. x 1.4 cms. at the left frontal area;
from the scene but accused Virgilio and Esteban ran after and overtook
him. Accused Virgilio, Esteban, Valentino and Isidro and other persons 6. Incised wound, 5 cms. x 0.3 cm. at the chin;
encircled Aliguer, and thereafter ganged up and stabbed him. Aliguer fell
to the ground, mortally wounded. The accused Caabays and their cohorts 7. Stab wound, 3 cms. x 1 cm. at the right scapular area;
placed the cadavers of Paulino and Aliguer side by side. Shocked and
petrified, Adelina could do nothing but bow her head in silent grief. She 8. Amputated, right hand;
was afraid even to go to the place where her husband and son were. Alone
in their house, Adelina was unable to sleep the entire night. 9. Incised wound, 4 cms. x 3 cms. at the left posterior area;

The following morning, Adelina proceeded to the place where her husband 10. Incised wound, 4 cms. x 3 cms. at the left anterior wrist;
and son were hacked and stabbed. She found them sprawled in their
farmland, side by side, already dead. She proceeded to the house of 11. Incised wound, 13 cms. 4 cms. at the posterior neck;
Barangay Captain Victory Sualog at Barangay San Vicente and reported the
incident. She also informed the barangay captain that accused Virgilio and I. CAUSE OF DEATH:
his sons Esteban, Valentino, Rodrigo and Isidro were the assailants. In the
meantime, SPO3 Romeo Robles and SPO2 Jesus Gonong arrived and Cardio respiratory arrest, hemorrhage due to incised and stab wounds.[6]
conducted an on-the-spot investigation.
On the other hand, the following were the doctors findings upon
examining Aliguers body:

104
cooking in the kitchen. His son Esteban was about 15 meters away,
II. POST MORTEM FINDINGS: transferring the cow to another place.

1. Incised wound, 12 cms. x 4 cms. maxillary area fracturing the teeth; Virgilio saw Paulino within the boundary of his farmland, destroying his
fence. Virgilio confronted Paulino and told him to stop. Paulino retorted:
2. Incised wo[u]nd, 10 cms. x 5 cms. at the left of the face; Bakit, ano? Virgilio said: Hindi ako lalaban. Aliguer, who was near the
banana trees, about a meter away, was armed with a bolo. He suddenly
3. Incised wound, 13 cms. x 3 cms., right posterior hand; tried to hack Virgilio from behind. The latter turned around and faced
Aliguer who, thereupon struck Virgilio with the bolo, hitting the latter on
4. Incised wound, pointer and middle fingers, right hand; the face and the left ear. Paulino likewise hacked Virgilio, but the latter
was able to parry the thrust with his right hand. Virgilios leg and right
5. Incised wound at the scrotum; elbow were hit by Paulinos bladed weapon. Virgilio cried for help, calling
his son Esteban who armed himself with a piece of wood and immediately
6. Incised wound, 4 cms. x 1 cm. at the right forearm posterior; rushed to his father. Aliguer then hacked Virgilio on the head twice, but
Virgilio was able to wrest the bolo away from Aliguer. He then held
7. Incised wound, 3 cm. x 1 cm., left ear; Aliguers hands and used him as a shield, to prevent Paulino from stabbing
him. Virgilio pushed Aliguer forward. Aliguer fell to the ground. Virgilio
II. CAUSE OF DEATH: then stabbed the fallen Aliguer several times, even as the latter tried to
ward off the thrusts with his feet. Virgilio could no longer recall how many
Cardio respiratory arrest, hemorrhage due to incised wounds.[7] times he stabbed and hacked the victim.

Dr. delos Reyes signed the respective death certificates of Paulino and In the meantime, Paulino squared off with Esteban. After hacking Aliguer,
Aliguer.[8] Because the collar bone was broken, it appears that the incised Virgilio then thrust the bolo at Paulino and hacked the latter several times.
wound on Paulinos left scapular area was the most serious. Paulinos right hand was severed; it fell to the ground, its fingers still
clutching the bolo. Virgilio, his wife and Esteban then proceeded to
On June 29, 1994, Adelina gave her sworn statement on the stabbing Barangay Adela where they took a motor boat and proceeded to the
incident to SPO1 Romeo P. Narcise, wherein she identified Virgilio Caabay Zapanta Maternity and General Hospital for the treatment of their
and his sons Esteban, Rodrigo, Valentino and Isidro as the assailants.[9] wounds. He stayed in the hospital for one week, and had to return for
further treatment. His wife destroyed the bolos.
The Evidence of the Accused[10]
For his part, accused Esteban testified that at 5:00 p.m. on June 23, 1994,
The accused Virgilio Caabay admitted having hacked Paulino and Aliguer. he was grazing his cow in their farmland. He saw Paulino and Aliguer, each
He claimed, however, that he killed Aliguer to defend himself. He, also armed with a bolo, hacking his father. He heard his father shout to him for
killed Paulino to defend his son, accused Esteban Caabay. help. Esteban picked up a piece of wood, about a meter long, from the
fence and rushed to defend his father who was then fending for himself
Virgilio testified that he was adept at defending himself, having studied against Aliguers hacking blows. Esteban sustained wounds on his left and
martial arts. He was 54 years old at the time of the killings. On June 27, right arms, and the left side of his neck. Esteban called to his father for
1994 at 5:00 p.m., he was outside feeding their pigs, while his wife was help. Virgilio had by then hacked Aliguer to death. He squared off with

105
Paulino, whom he also struck down. Virgilio, his wife, and Esteban then
fled from the scene, and proceeded to Barangay Adela, about one and a - Lac. Wd. Finger, Thumb, Ant.
half kilometers from Sitio Lamis where they borrowed a banca owned by
Iyok Awit. From there, they proceeded to the house of Councilor Danilo - Lac. Wd. Forearm, distal 3rd. Post.
Malayas whose banca they borrowed for the trip to the Zapanta Maternity
and General Hospital in San Jose. Once there, Dr. Senen Zapanta treated - Lac. Wd. Forearm, middle 3rd. Post.[12]
father and son for their wounds.
The wounds sustained by the two could have been caused by a sharp bolo;
Virgilio and Esteban were treated for multiple lacerated wounds. Virgilio the wounds were serious and could have caused their deaths. Virgilio and
sustained the following wounds: Esteban were discharged from the hospital on July 12, 1994.

- Lac. Wd. Face Left about 7-8 inches up to the ear left. Renato Oquindo testified that he was a barangay kagawad and chairman of
the barangay peace and order committee. At 8:00 a.m. on June 28, 1994,
- Lac. Wd. Temple Left 1 inch. Adelina arrived in his house at Barangay San Agustin and told him that her
husband and her son had been killed. He accompanied Adelina to the
- Lac. Wd. Wrist Left, Posterior house of Barangay Captain Victory Sualog, who directed them to go to San
Jose to report the incident to the police authorities. Later, Oquindo and
- Lac. Wd. Shoulder Rt. Anterior Barangay Councilor Alberto Quindap proceeded to the scene of the killing
and saw the cadavers of Paulino and Aliguer, about ten meters away,
- Lac. Wd. Elbow Rt. Post inside the Urbano farmland. Adelina told Oquindo that were it not for their
white dog, she would not have discovered the bodies. However, Oquindo
- Lac. Wd. Leg Middle 3rd. Rt. Ant.[11] failed to inform the police authorities about what Adelina had told him.

Esteban sustained the following injuries: Barangay Captain Victory Sualog testified that at 6:30 a.m. on June 28,
1994, Oquindo and Adelina arrived at his house and reported the stabbing
- Lac. Wd. Face Rt. and killing of Paulino and Aliguer. He was told that the incident stemmed
from a boundary conflict between Virgilio and Paulino. Adelina requested
- Lac. Wd. Forearm Prox. 3rd. Postero-Lateral him and the two barangay councilors to conduct an on-the-spot
investigation. Sualog then ordered Oquindo and Quindap to proceed to the
- Lac. Wd. Forearm Distal 3rd. Antero-Lateral scene of the crime, while he proceeded to San Jose to report the incident
to the police authorities and secure the services of a medico-legal officer.
- Lac. Wd. Forearm Middle 3rd. Ant.
The accused Isidro and Valentino denied any involvement in the killing of
- Lac. Wd. Hand, Palmar along the little finger Paulino and Aliguer. They adduced evidence that they were employed by
Danilo Malayas at Barangay Adela, Cambaruan, Rizal, about three
- Lac. Wd. Thigh, Distal 3rd. Anterior kilometers from Sitio Lamis. They had been working in the twelve-hectare
farmland as operators of hand tractors since June 10, 1994 or barely two
- Lac. Wd. Leg, middle 3rd. Antero-Lat. Left weeks before the killing. During this time, they stayed in Danilos house.

106
They likewise averred that it would take three hours on foot to reach Sitio On January 23, 1997, the trial court rendered judgment convicting the
Lamis from the Malayas farm, but there was also a route via motor boat appellants with double murder, the decretal portion of which reads:
through the nearby Busuanga River.
WHEREFORE, the Court finds that:
In the afternoon of June 27, 1994, Isidro and Valentino were at work until
6:00 p.m. They left the fields with their employer. Rodrigo and Isidro were a) In Criminal Case No. R-3733;
told that their father Virgilio and their brother Esteban had been hacked
and were confined at the Zapanta Maternity and General Hospital in San Accused Virgilio Caabay, Esteban Caabay, Cool (Valentino) Caabay, and
Jose. With their co-worker Juanito Roldan, they rushed to the hospital on Boyet (Isidro) Caabay guilty as principals of the crime of Murder, as defined
board the motor banca owned by Malayas. Valentino and Isidro slept in and penalized under Article 248 of the Revised Penal Code, and Section 6
the hospital that night. The testimonies of Valentino and Isidro were of Republic Act No. 7659, otherwise referred to as the Death Penalty Law,
corroborated by Juanito Roldan. and are hereby sentenced to DEATH.

Danilo Malayas testified that Valentino and Isidro had been working in his All the accused are hereby ordered to jointly and severally indemnify the
farm since June 1, 1994. On June 27, 1994, he and his helpers, including heirs of the late Aliguer Urbano in the amount of FIFTY THOUNSAD PESOS
Valentino and Isidro, were working at his farmland since 7:30 a.m. At 11:30 (P50,000.00).
a.m., they left the farm and went to his house at the poblacion, which was
about a kilometer away. They went back to the farm at 1:00 p.m. His b) In Criminal Case No. R-3734;
brother Lucreo Malayas saw them as they worked. Danilo went back home
at 4:00 p.m., leaving Valentino and Isidro. At around 6:00 p.m. to 7:00 Accused Virgilio Caabay, Esteban Caabay, Cool (Valentino Caabay, and
p.m., Virgilio and Esteban arrived, wounded. They asked him to lend his Boyet (Isidro) Caabay guilty as principals of the crime of Murder as defined
motor boat, to ferry them to the Zapanta Maternity and General Hospital and penalized under Article 248 of the Revised Penal Code, and Section 6
in San Jose. He agreed. Virgilio and Esteban were transported to San Jose of Republic Act Number 7659, otherwise known as the Death Penalty Law,
on board his motor boat. When Esteban and Isidro arrived, he told them and are hereby sentenced to DEATH.
what happened. Danilo also testified that it would take one to negotiate
the distance from his house to the place of the killing about forty to fifty All the accused are ordered to jointly and severally indemnify the heirs of
minutes. the late Paulino Urbano in the amount of FIFTY THOUSAND PESOS
(P50,000.00).
Lucreo Malayas corroborated Danilos testimony. He testified that accused
Valentino and Isidro were in the farm from 7:00 a.m. to 6:00 p.m. on June The accused who are all detained at the Provincial Jail at Magbay are
27, 1994. The next day, June 28, 1994, he learned that Valentino and ordered immediately transferred to the New Bilibid Prisons, Muntinlupa
Isidro, as well as accused Virgilio, Esteban and Rodrigo, were suspects in City.[13]
the killing of Paulino and Aliguer. Lucreo Malayas corroborated the
testimony of his brother Danilo. The trial court ruled that treachery and abuse of superior strength were
attendant in the commission of the crimes.
During the preliminary investigation, the accused submitted their
respective counter-affidavits. All the accused, now the appellants, assail the decision of the trial court,
contending that:

107
witnesses and the probative weight thereof, and its conclusions based on
The Court a quo erred: the said findings are accorded by the appellate court conclusive effect
unless the trial court ignored, misconstrued and misinterpreted facts and
I. In relying heavily on the testimony of the lone alleged eye- witness of the circumstances of substance which, if considered, would alter the outcome
prosecution whose testimony is tainted with bias and contradictions. of the case.[15]

II. In totally not giving credence and deliberately disregarding the After a review of the evidence on record, we find no reason to deviate
testimonies of witnesses for the defense. from the findings and conclusions of the trial court. Contrary to the
appellants assertions, Adelina did identify the appellants as the assailants
III. In finding of material facts against the accused unsupported by and testified on their respective involvement in the killings. Her testimony
evidence. on direct examination is as follows:

IV. In convicting all the accused for murder.[14] Q You mentioned also about the accused as the one who killed your
husband and son, will you kindly point to us accused Virgilio Caabay?
The appellants aver that the trial court erred in giving credence and
probative weight to Adelinas testimony. She failed to reveal the identity of A (The witness pointed to a person seated on the bench and when asked
the assailants to her daughter-in-law Arlene Urbano, to the policemen who about his name, he answered that he is Virgilio Caabay)
conducted an on-the-spot investigation of the killings and to Barangay
Captain Sualog. She did not tell them that she witnessed the killing. Q How about Esteban Caabay, is he in court?
Appellants Valentino and Isidro could not possibly be involved because at
the time, they were working in the Malayas farmland. Only the appellants A Yes, sir.
Virgilio Caabay and Esteban Caabay were involved in the killing of the
victims, as only they sustained injuries. The other appellants did not even Q Will you please point to him?
sustain a scratch on their bodies. The trial court also erred in not holding
that appellants Virgilio Caabay and Esteban Caabay acted in self-defense A (The accused voluntarily stood up when he heard his name).
when they killed the victims.
Q How about Ludring Caabay, is he inside the court?
The Office of the Solicitor General, for its part, argues that Adelina
positively identified the appellants as the assailants. That she failed to A Hes not yet arrested, Sir.
divulge their identities to her daughter-in-law Arlene, to the policemen
who conducted the on-the-spot investigation and to Barangay Captain Q How about Cool Caabay, is he inside the courtroom?
Sualog, did not impair her credibility and the probative weight of her
testimony. The trial court did not err in giving credence and probative ATTY. VILLAMAR:
weight to Adelinas testimony which is even corroborated by the physical
evidence on record. The accused voluntarily stood up when he heard his name.

The contentions of the appellants do not persuade. The legal aphorism is Q How about Boyet Caabay, where is he?
that the findings of the trial court, its assessment of the credibility of the

108
A (The witness pointed to a person wearing white T-shirt and when asked COURT:
his name he answered that he is Isidro Caabay @ Boyet Caabay).
Q What happened to your husband?
COURT:
A When my son went to approach my husband and when I turned my back,
There are five accused, only one at large. I saw my husband dead already. I saw also my husband being hacked, Your
Honor.
FISCAL SALCEDO:
Q Who hacked your husband?
Yes, your Honor.
A The Caabays, Your Honor.
Q Now, will you kindly tell us Mrs. Urbano the relationship of the accused
with each other? Q Who among the Caabay because there are many Caabays?

A One family, Sir. A The Caabays hacked my husband, sabay-sabay, Your Honor.

Q And who is the father among the accused? Q All of the Caabays were armed with bolos?

A Virgilio Caabay is the father who is wearing wrist watch. A Yes, Your Honor, they were all armed with long bolos.

Q How about this Ludring Caabay, what is his relationship? Q And they hacked your husband to death?

A He is also the son of Virgilio Caabay. A Yes, Your Honor, they hacked my husband on the neck and cut his right
hand.
Q Do you want to tell us that Esteban, Ludring, Cool and Boyet are the
children of Virgilio Caabay? FISCAL OLARTE:

A Yes, sir.[16] Q I noticed that there are only four (4) Caabays, now, where is the other
one?
...
A He is hiding in Cambarwang [sic], in the house of Marcelo Candelario, Sir.
FISCAL OLARTE:
Q What is the name of that Caabay who is hiding in the house of Mario
Q When you were going to your house, what happened, if any? Candelario?

A When I reached home, I met my son Aliguer and he told me that we have A Ludring Caabay, Sir. He was really the one who hacked my husband at
a visitor in our house and I told him to go ahead of me. the back.

109
Q While your husband was being hacked by the Caabays, as you said, what A My son proceeded to the place where my husband was to fetch him so
did your son Aliguer Urbano do? that he could go home.

A When my son approached the body of my husband, he was chased by Q But according to you, when you turned your back, you saw your husband
the two (2) accused, Berling Caabay and Esteban Caabay so, my son ran being hacked by the Caabays?
away.
A My son was still walking when I met him, and when I turned back, I saw
Q What happened to your son when he was being chased by these my husband being hacked by the Caabays.
persons?
Q And when you saw his father being hacked by the Caabays, your son
A Eight (8) persons approached and they killed my son, Sir. proceeded to the place where his father was?

Q Who killed your son? A Yes, Sir.

A All the Caabays, Sir.[17] Q And your son was holding a bolo?

... A Yes, sir.

Q Now, when you met your son, your son proceeded to the place where Q When you left your husband in that place, he was with his bolo because
your husband was? he was then clearing your land?

A When I met my son, and when I turned back, I saw my son being hacked A Yes, sir.
by the Caabays.
Q You mentioned that there were 10 people who were involved in the
COURT: killing of your son and husband, my question is: you do not know the
others except the Caabays?
All these accused Mrs. Witness?
A I do not know them by their names but I looked only at the Caabays.
A Yes, your Honor.
Q Because youre very familiar with the Caabays?
Q Including Ludring who is still at large?
A Yes, sir.
A When my son ran away, many persons encircled and ran after him.
Q And in fact, you have land boundary dispute?
ATTY. VILLAMAR:
A Yes, Sir.
Your son went to that direction to help his father, is it not?

110
Q Now, because of what you witnessed when you turned your head, you
were shocked, is it not? Q Do you want to tell us that the dead bodies of your husband and your
son the following morning before you went to the Barangay Captain were
A Yes, Sir, I just looked at them, and I know them, I just stood up and lying side by side already?
bowed my head.
A Yes Sir, they were lying side by side.
Q And you never run towards your husband to plea for his life?
COURT:
A No, sir, because they were armed.
Who moved the bodies?
Q But before that incident, youre in talking terms with the Caabays
because in your testimony your husband and Ludring Caabay even talked A The Caabays your Honor, who laid the bodies side by side.[19]
with each other?
On June 29, 1994, or barely two days after the gory killing, Adelina gave
A Yes, sir, in fact we gave them fish when my husband caught fish. her sworn statement to SPO1 Romeo P. Narcise, where she identified the
appellants as the assailants:
Q How long did you stay there standing and in shocked [sic]?
4. T - Sino o sino-sino naman ang pumatay sa iyong asawa at anak, kung
A After my husband was killed, they left, so I also went home. kilala mo?

Q And you stayed in your house? S - Sina VIRGILIO CAABAY, ESTEBAN CAABAY, LUDRING CAABAY, COOL
CAABAY at BOYET CAABAY.
A Yes, sir.[18]
5. T - Ano naman ang ginamit ng mga taong iyong binanggit sa pagpatay sa
On cross examination, Adelina testified as follows: iyong asawa at anak?

ATTY. VILLAMAR: S - Ang mag-aama pong ito na pumatay sa aking asawa at anak na ang
kanilang ginamit ay tig-iisa sila ng gulok.
On that morning of the following day, you never went to the place where
you saw your husband and your son dead? 6. T - Kailan at saan naman nangyari ito?

A Before I went to the Barangay Captain, I went first to the place where my S - Noon pong petsa 27 ng Hunyo, 1994 humigit kumulang sa alas 5:30 ng
husband and son were killed. hapon sa aming bukid sa So. Lamis, Brgy. San Agustin, bayang ito.[20]

Q And you saw the dead bodies of your husband and son Aliguer the The fact that Adelina is Paulinos widow and Aliguers mother adds more
following morning before you went to the house of the Barangay Captain? credence to her testimony. It is in her natural interest to secure the
conviction of the killers of her loved ones. Thus, this deters her from
A Yes Sir, they were beside with [sic] each other.

111
implicating persons other than the real culprits, for otherwise, the latter the appellants who were each armed with bolos, she had nobody to lean
would thereby gain immunity.[21] on for help. She opted to report the incident to the barangay captain who
would then be obligated to report the same to the police authorities. The
In People v. Porras,[22] we held that experience dictates that precisely police investigators must have noticed how distraught Adelina was that
because of the unusual acts of violence committed right before their eyes, they did not immediately subject her to questioning at the time. This can
witnesses can remember with a high degree of reliability the identities of be gleaned from Adelinas testimony:
criminals, and the time and manner they committed the crimes.
Q The police went to Sitio Lamis?
In People v. Baquiran,[23] we ruled that the natural reaction of one who
witnesses a crime and recognizes the offender is to reveal it to the A Yes, your honor.
authorities at the earliest opportunity so that the culprits will be
apprehended without loss of time and prosecuted and convicted in due Q What time did they arrive there?
course of proceedings. In this case, Adelina informed Barangay Captain
Victory Sualog that the appellants were the assailants of her husband and A Around 11:00 oclock in the morning, your Honor.
son:
Q Were you investigated by the police?
Q Now, the following morning, you proceeded to where?.
A They did not investigate me because my mind was not yet ready for the
A I went to Barangay Captain Victory Sualog. investigation.[27]

Q And you narrated what you saw to the barangay captain? Adelina was so overcome with grief when she saw the motionless bodies
of her husband and son, that Barangay Captain Victor Sualog and the
A I told the barangay captain that my husband and son Aliguer were dead barangay councilors present had to pull her away:
lying down, and they were killed by the Caabays.[24]
ATTY. VILLAMAR:
There is no standard behavior for a person confronted with a shocking
incident, especially if the victim is a close kin. One may immediately report Who were the persons that you were able to talk on that day June 28,
the incident to the proper authorities and may opt to come forward to 1994?
reveal the identities of the perpetrators.[25] Others may simply opt to
prioritize his reaction to a gory incident. One may bring the victim to the A The barangay captain and councilors were the one [sic] who pulled me
hospital to save his life, and defer in the meantime the reporting of the away from the body of my son and husband.[28]
incident to the police authorities and the revelation of the identities of the
perpetrators. Others may report the crime to the police authorities after There was no need to inform Arlene that her husband had been killed,
some time for investigation.[26] because, as Adelina testified, Arlene herself saw the incident from her
house:
In this case, Adelina was the simple unlettered wife of a farmer. She had
just witnessed the gory debutchery of her husband and son. She was ATTY. VILLAMAR:
deluged with mixed feelings of fear, grief and helplessness. Ranged against

112
How far is the house of Aliguer from your house? convincing evidence; that they were in such a place other than the situs
criminis, such that it was physically impossible for them to have committed
A Near Sir, fifteen meters away. the crimes.

Q And the wife of Aliguer is living in their house? In this case, the evidence of the appellants in support of their alibi is weak.
Even assuming that indeed as of June 27, 1994, the appellants were
A Yes, Sir. employed by Danilo Malayas in his farmland and were staying thereat, it
was not physically impossible for them to have been at the scene of the
Q And on that afternoon, you know for a fact that the wife of Aliguer was crime at the time of its commission. Danilo Malayas, the appellants
in their house? employer, testified that one would take only one and a half hours to travel
from his farmland to Sitio Lamis, where the assailants killed the victims:
A Yes, sir.
...
Q And yet, you did not go to their house to tell that her husband, your son,
was already dead? Q And from the river if you would use the paddled banca directly going to
Sitio Lamis it would take you about fifteen minutes also?
A She saw also because she looked outside the window and saw Caabay
hacked her husband. ATTY. VILLAMAR:

Q And you know for a fact also that the wife of Aliguer did not go to any No. You can not reach Sitio Lamis by banca.
authority to report the incident on that afternoon?
COURT:
A She did not go outside the house because her son was sick and had
measles.[29] From the river bank going to Sitio Lamis, how long will it take you to the
other side?
We do not believe Renato Oquindos testimony that Adelina told him that
she would not have known about the killing of her husband and son were A Because when we came from the farm going to Sitio Lamis you will
it not for their white dog. There is no evidence on record that the Urbanos passed [sic] by Adela so that you can ride in a banca, Your Honor.
owned a dog. Furthermore, Oquindo never breathed a word about this to
the police authorities. It was only when he testified that he revealed the COURT:
matter for the first time.
Q How long will it take you from the farm to Adela by walking?
The alibi and the denials of the appellants Isidro and Valentino Caabay,
being the weakest of all defenses, will not prevail over the positive and A One (1) hour, Your Honor.
straightforward identification made by Adelina, pointing to the appellants
as two of the assailants of her husband and son.[30] Such defenses are COURT:
easy to concoct and difficult to disprove.[31] To merit approbation, the
appellants were burdened to prove their alibi at the trial with clear and And the banca, that will take you ten to fifteen minutes?

113
A Twenty minutes, Your Honor. Considering the short distance between the situs criminis and the Malaya
farm where the appellants claim they were, it was not physically
When you reached the other side, how long will it take you walking? impossible for appellants Valentino and Isidro Caabay to have left the
Malaya farmland at 4:00 p.m., arrive at their house at about 5:30 p.m. and
A After crossing the river you will walk around ten minutes, Your Honor. thereafter hack the two victims to death.

COURT: Self-defense as interposed by the appellants Virgilio and Esteban is


untenable. For one thing, appellant Estebans theory is antithetical to his
So, more or less one hour and thirty minutes. Proceed, Fiscal.[32] and appellant Virgilios testimonies that when appellant Esteban rushed to
the aid of his father, he was armed merely with a piece of wood, and upon
He also testified that one coming from his house going to the place of the hearing his son, appellant Esteban, pleading for succor, appellant Virgilio
hacking incident, would negotiate the distance in only forty to fifty faced Paulino and hacked the latter to death with the bolo which he earlier
minutes: managed to grab from Aliguer. Paulino and Aliguer died of incised and stab
wounds, and not of injuries caused by a piece of wood. Furthermore,
COURT: whether the accused acted in self-defense or in defense of a relative is a
question of fact to be determined by the trial court based on the evidence
Q How far is that place of hacking incident to your house? on record.[34]

A 1.5 kilometers, Your Honor. The trial court must consider by a balance of probabilities who of the
participants in a fight had in the natural order of things, the reason to
Q How far is that place of the hacking to your farm? commence the unlawful aggression.[35]

A 2.5 kilometers, Your Honor. Case law has it that like alibi, self-defense or defense of relatives are
inherently weak defenses which, as experience has shown, can easily be
Q If you will go to the place of the incident by walking or hiking how many fabricated.[36] If the accused admits the killing, the burden of evidence, as
hours will it reach [sic] you? distinguished from burden of proof, is shifted on him to prove with clear
and convincing evidence the essential elements of the justifying
A 1-1/2 hours, Your Honor. circumstance of self-defense, namely: (a) unlawful aggression on the part
of the victim; (b) reasonable necessity of the means employed by the
Q From your house to the place of the hacking incident how long will it accused to prevent or repel the unlawful aggression; and (c) lack of
take you to negotiate the distance? sufficient provocation on the part of the accused defending himself.[37]
Defense of a relative requires the following essential elements: (a)
A 40 to 50 minutes, Your Honor. unlawful aggression on the part of the victim; (b) reasonable necessity of
the means employed by the accused to prevent or repel the unlawful
COURT: aggression of the victim; and (c) in case of provocation given by the person
being attacked, the one evading the attack, defense had no part
Alright, proceed.[33] therein.[38] For the accused to be entitled to exoneration based on self-

114
defense or defense of relatives, complete or incomplete, it is essential that We agree with the trial court.
there be unlawful aggression on the part of the victim, for if there is no
unlawful aggression, there would be nothing to prevent or repel.[39] For First. The trial court gave credence and probative weight to the testimony
unlawful aggression to be appreciated, there must be an actual, sudden of Adelina, fortified as it is with the physical evidence on record. She
and unexpected attack or imminent danger thereof, not merely a testified that the appellants hacked the victim Paulino on the neck and cut
threatening or intimidating attitude.[40] off his arm. The autopsy report of Dr. Hurley delos Reyes shows that the
victim sustained an incised wound on the neck and his right hand was
The accused must rely on the strength of his own evidence and not on the amputated.[44]
weakness of that of the prosecution because even if the evidence of the
prosecution is weak, the same could no longer be disbelieved after the Second. Appellant Virgilio testified that he was not armed, while appellant
accused has admitted the killing.[41] Self-defense and/or defense of Esteban was armed with a piece of wood. However, Paulino sustained ten
relatives cannot prosper if not corroborated by independent and incised wounds and one stab wound on the scapular area, ear, face and
competent evidence.[42] nose, parietal area, left temporal area, left frontal area, chin, right scapular
area and posterior neck. Aliguer sustained seven incised wounds on the
In this case, the appellants aver that the trial court erred in not maxillary area, fracturing his teeth on the left side of the face; he also
exonerating them on their plea of self-defense, taking into account the sustained wounds on the scrotum and on the left ear.[45] Considering the
following: nature, location and number of the wounds sustained by the victims, the
appellants plea of self defense and defense of a relative will not hold.[46]
1. The victims are admitted to be both armed with bolos.
Third. Appellant Virgilio failed to prove when and how he learned martial
2. The accused Virgilio Caabay and Esteban Caabay suffered several serious arts. His barefaced testimony that he knew something about martial arts is
injuries that will negate the presumption adopted by the Lower Court that self-serving and barren of probative weight.
they were the aggressors qualified by Treachery and aggravated by the
presence of evidence premeditation and abused of superior strength. Fourth. The appellants should have surrendered the bolos and the piece of
wood to the police authorities. They should have reported that appellants
3. That the testimonies of the accused Virgilio Caabay and Esteban Caabay Esteban and Virgilio were at the Zapanta Maternity and General Hospital
jibed with the corresponding injuries. For instance Esteban Caabay said for the treatment of wounds sustained while defending themselves from
that he was just armed with a piece of wood and that he only parried the the victims. The appellants did not. Appellant Virgilio testified that his wife
hacking blows of the victim Aliguer Urbano by his hands. True enough, destroyed the bolos, thus:
most of his injuries, were on his hands. As to Virgilio Caabay, he said that
he was hacked by the victim Paulino Urbano on his face. This allegation is Q Those bolo [sic] that you retrieve [sic] from Aliguer did you surrender it?
backed by a serious hack wound on his face. The only reason why he
survived the attacked [sic] of Paulino Urbano is because he knows A No, sir, I was in the hospital.
something about martial arts.[43]
Q How about the bolo used by Paulino Urbano, was there anybody who
But the trial court ruled that the appellants failed to prove with clear and get [sic] that?
convincing evidence their plea of self-defense or defense of a relative.
A It was in our house but my wife throw [sic] it away, sir.

115
When they wrestle[d] with the bolo away from Aliguer, Aliguer fell. There
Q Likewise the bolo that you retrieve [sic] from Aliguer Urbano was thrown is no showing that he immediately fell.
away?
FISCAL SALCEDO:
A Yes, sir.[47]
When you wrestled with Aliguer wrestling the bolo from him, did he fell on
Appellant Virgilio, however, failed to present his wife to explain when and the ground?
why she destroyed the bolos used by the victims.
A No, sir.
Fifth. Appellant Virgilio testified that he managed to grab Aliguers bolo,
then pushed the latter, held his right hand, and used him as a shield. He Q What was the relative position of Aliguer Urbano after you wrest the
then stabbed Aliguer several times even as the victim had already fallen to bolo from him?
the ground. Appellant Virgilio could no longer remember how many times
he had stabbed the victim because his vision had blurred: A He was standing, sir.

Q And according to you when Aliguer Urbano was about to strike you Q Facing you?
parried his blow and by using judo, you were able to wrest the bolo from
him? A Yes, sir.

A I was able to get the bolo from him, sir. Q Right then and there you delivered hacked wounds on his face?

Q Because you used judo? A Yes, sir, when I got hold of that bolo, I hacked him.

A Yes, sir. Q The same bolo that you get [sic] from him?

Q You demonstrated in Court [sic] Aliguer Urbano immediately fell on the A Yes, sir.
ground when you twisted his arm and finally wrest the bolo, is it not?
Q You hit him?
ATTY. VILLAMAR:
A Yes, sir.
The question is misleading, Your Honor.
Q On what part of his body?
FISCAL SALCEDO:
A I hit him in his arm, sir.
Why misleading?
Q How many times did you hit him?
ATTY. VILLAMAR:
A That is what I do not know, sir.

116
FISCAL SALCEDO:
Q Now, this Aliguer Urbano was already defenseless at the time you
wrested the bolo from him? Okay, he remain [sic] standing while you were hacking his son Aliguer
Urbano?
A Yes, sir.
A He was already facing Steven, sir.
Q In fact, since you have already wrested the bolo you should stop hitting
him if you wanted so, is it not? Q And according to you when Aliguer Urbano fell, you also stabbed him
with a bolo you used in hacking him?
A Because my sight at that time was already blurred, sir.
A Yes, sir.
Q How long did you face Aliguer Urbano after you wrested the bolo from
him? Q Why? Was the bolo you used a pointed one?

A Saglit lang po, sir.[48] A Yes, sir.[49]

... In People v. Decena,[50] we ruled that where the inceptual unlawful


aggression of the victim had already ceased, the accused had no more right
Q So thereafter you let loose his son is that what you want to tell us? to kill the victim. In this case, there is no evidence that Aliguer attacked
appellant Virgilio when the latter felled him.
A I pushed him away, sir.
Sixth. The bare fact that the appellants sustained injuries does not prove
Q You pushed him towards Paulino Urbano? that they acted in self-defense or in defense of a relative.[51]

A I pushed him and after that I hacked him, sir. The Crimes Committed by the Appellants

Q And Paulino Urbano did not do anything at the time you were The trial court correctly ruled that the appellants are guilty of two counts
successively hacking Aliguer Urbano? of murder under Article 248 of the Revised Penal Code, as amended by
Republic Act No. 7659, qualified by abuse of superior strength. However,
A None, sir. the trial court erred in appreciating treachery in both cases as an
aggravating circumstance against the appellants.
Q He remain [sic] standing while you were continuously hacking his son
Aliguer Urbano? First. Adelina did not see how the assault started; hence, she could not
testify whether the appellants deliberately adopted a sudden and
ATTY. VILLAMAR: unexpected method of attack which deprived the victims of an opportunity
to defend themselves.[52]
We will object to the word continuously, Your Honor.

117
Second. Even if proved, treachery was not alleged in the information as SO ORDERED.
mandated by Section 9, Rule 110 of the Revised Rules of Criminal
Procedure. Although the crime took place before the effectivity of the said
rule, the same should be applied retroactively because it is more favorable [G.R. No. 132351. January 10, 2002]
to the appellants.[53] On the other hand, the aggravating circumstance of
abuse of superior strength was attendant because the appellants took THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEXANDER
advantage of their numerical superiority and their bladed weapons in SALVA Y PATEA, FERDINAND SALVA Y PATEA and ROLITO SALVA Y PATEA,
killing the victims.[54] accused,

Proper Penalties for the Felonies ALEXANDER SALVA Y PATEA and FERDINAND SALVA Y PATEA, accused-
appellants.
The trial court erred in sentencing the appellants to death for each of the
crimes. The penalty for murder under Article 248 of the Revised Penal DECISION
Code, as amended by Republic Act No. 7659 is reclusion perpetua to death.
There being no modifying circumstance attendant in the commission of the QUISUMBING, J.:
crimes, aside from the qualifying circumstance of abuse of superior
strength, the appellants should be sentenced to suffer reclusion perpetua On appeal is the joint decision[1] dated February 24, 1997, of the Regional
for each crime, conformably to Article 63 of the Revised Penal Code. Trial Court of Tanay, Rizal, Branch 80, in Criminal Cases No. 1476-T and No.
1486-T against the brothers Alexander, Ferdinand, and Rolito Salva for
Civil Liabilities of the Appellants murder and for frustrated homicide, respectively. In the first case, the
court convicted appellant Alexander Salva of murder and appellant
The trial court ordered the appellants to pay, jointly and severally, the Ferdinand Salva of homicide, and ordered both appellants to pay jointly
heirs of the victims Paulino Urbano and Aliguer Urbano in the amount of and severally the heirs of the victim, Palmero Milanes, P12,000 as actual
P50,000 for each crime as civil indemnity. However, the trial court failed to damages, P100,000 as moral damages, and the costs of the suit. In the
award to the heirs of the said victims in the amount of P50,000. The second case, it convicted only appellant Alexander Salva of frustrated
decision of the trial court should, thus, be modified. homicide and ordered him to pay the victim, SPO1 Mariano Cura, P36,000
as actual damages, P50,000 as moral damages, and P10,000 as attorneys
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court fees. Accused Rolito Salva was acquitted in both cases. Appellant
of San Jose, Occidental Mindoro, Branch 46, is AFFIRMED with Ferdinand Salva was acquitted in the second case.
MODIFICATIONS. Appellants Virgilio Caabay, Esteban Caabay, Valentino
Caabay and Isidro Caabay are found guilty beyond reasonable doubt of The indictments against Ferdinand, Alexander and Rolito Salva in Criminal
murder in Criminal Cases Nos. R-3733 and R-3734. The said appellants are Cases No. 1476-T and No. 1486-T, respectively, read:
sentenced to reclusion perpetua for each crime; and are directed to pay,
jointly and severally, the heirs of Paulino Urbano P50,000 as civil indemnity In Criminal Case No. 1476-T:
and P50,000 as moral damages; and to the heirs of Aliguer Urbano the
amount of P50,000 as civil indemnity and P50,000 as moral damages. Costs That on or about the 10th day of January 1995 in the Municipality of
against the appellants. Tanay, Province of Rizal, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating

118
together and mutually helping and aiding with one another, armed with a The prosecutions version of the incident, as summed up by the Solicitor
fan knife and .38 caliber revolver (Squires Bingham) with serial number General, is as follows:
179533, with intent to kill, evident premeditation and by means of
treachery, did then and there willfully, unlawfully and feloniously attack, On January 10, 1995, around 10:00 a.m., Palmero Milanes was driving a
assault and stab and shot one Palmero L. Milanes, thereby inflicting upon passenger jeepney with Pablito Tibay as conductor going to Tanay, Rizal
the latter multiple stab and shot wounds which directly cause[d] his death. when Ferdinand Salva waved at them and tried to stop the jeep and then
uttered putang ina mo (p. 5-7, TSN, August 8, 1995). Failing to stop the
CONTRARY TO LAW.[2] jeep, Ferdinand took a tricycle and followed the jeep but Milanes
maneuvered the jeep and went to the police outpost in Pililla, Rizal where
In Criminal Case No. 1486-T: he sought police assistance (p. 8, id.). SPO1 Mariano Cura, clad in half-
uniform (wearing khaki pants with civilian short) boarded the jeep with its
That on or about the 10th day of January 1995 in the Municipality of driver and conductor (pp. 16, 21, 29-30, TSN, September 1, 1995). The
Tanay, Province of Rizal, Philippines, and within the jurisdiction of this three, all seated in the front seat, with Milanes driving, proceeded to
Honorable Court, the above-named accused, armed with a bladed weapon, Tanay to find Ferdinand to settle a small damage caused by Milanes jeep to
conspiring and confederating together and mutually helping and aiding Ferdinands tricycle (p. 23, id.).
one another, with intent to kill, did then and there willfully, unlawfully and
feloniously attack, assault and with the said bladed weapon one SPO1 When they reached Barangay Aldea, Tanay, the three got stuck in a traffic
Mariano Tejada Y Cura on his body, thereby inflicting upon the latter jam. While waiting for the traffic jam to ease up, Tibay sighted Ferdinand
wounds which would ordinarily cause his death, thus performing all the inside a tricycle (pp. 9-10, TSN, August 18, 1995). Ferdinand who also saw
acts of execution which should have produced the crime of murder, as a the jeep and its occupants, alighted from the tricycle, approached the jeep,
consequence but nevertheless did not produce it by reason of cause or grabbed Milanes out of the jeep and they grappled with each other (p. 11,
causes independent of his will, that is, due to the timely and able medical id.).
attendance rendered to said SPO1 Mariano Tejada Y. Cura.[3]
While Milanes head was under Ferdinands armpit, appellant stabbed
During arraignment Ferdinand, Alexander and Rolito Salva pleaded not Milanes back twice with a fan knife (pp. 11-12, TSN, September 1, 1995).
guilty. Thereafter, the cases were jointly tried.
While the fight was going on, SPO1 Cura alighted from the jeep, took his
The prosecution presented the following witnesses: Pablito Tibay, the gun and while he was about to make a warning shot, appellant stabbed
jeepney conductor; SPO1 Mariano Cura, assisting policeman and private him (p. 13, TSN, September 1, 1995). Thereafter, Ferdinand freed Milanes
complainant for the charge of frustrated murder; Rodney Tan, one of the and helped Alexander in grappling for the possession of SPO1 Curas gun. At
jeepney passengers; Elmer Figueroa, tricycle driver; Sgt. Pablo Villegas, this point, the gun suddenly fired hitting Rolito Salvas foot. Thereupon,
responding policeman; Dr. Bayani Viado, attending physician of SPO1 Cura; Milanes went back to his jeep.
Jesusa Vergara, medico-legal officer of the PNP Crime Laboratory who
autopsied the deceased; SPO1 Joseph Pueblo, investigating policeman; Later, Ferdinand got hold of SPO1 Curas gun and shot Milanes who
SPO1 Renato Ragadi, patrol mate of SPO1 Cura; and Wilma Milanes, wife slumped behind the steering wheel of the jeep (pp. 15-16, id.). SPO1 Cura
of the deceased.[4] also went inside the jeep holding his wounded stomach (p. 18, id.).

119
Milanes and SPO1 Cura were brought to the Tanay Community Hospital by After the two passengers alighted, they continued on the way going to the
Rodney Tan. Milanes died while SPO1 Cura survived after receiving tricycle terminal in Pililla, but they were caught in a traffic jam. At this
treatment at the Morong General Hospital (pp. 19-20, TSN, September 1, juncture, he saw a man box Rolito. He also heard Ferdinand shout, Hoy,
1995).[5] hoy, while getting off the tricycle. He saw Ferdinand push away that man
after Ferdinand had put his arm around the latters neck. Another person
The version of the defense is slightly different, as revealed by the (who turned out to be SPO1 Cura) arrived and hit his brother Rolito with a
testimonies of appellant and his co-accused herein summarized as follows: yantok. Alexander, who had a limp, got off the tricycle, at the very moment
Rolito was shot. Alexander said he had grabbed something (later identified
According to co-accused FERDINAND SALVA, on January 10, 1995, at about as a fan knife) from the tricycles tool kit and swung it against the boxer
7:00 A.M., he was driving his own tricycle with his brothers Rolito and who turned out to be Palmero Milanes. According to Alexander, he did not
Alexander on board. Upon reaching the San Ildefonso Lines terminal, they know if he hit Milanes. He then saw someone [SPO1 Cura] poke a gun at
were caught in a traffic jam when Palmero Milanes alighted from a jeep Rolito, but his brother Ferdinand parried the gun. It fired and a bullet hit
and boxed Rolito. Ferdinand halted the tricycle and tried to stop Milanes Rolito. He then heard Ferdinand shout, May tama si Rolito, dalhin mo sa
from further boxing Rolito. Later, when he saw SPO1 Mariano Cura point a hospital. Thus, Alexander loaded Rolito in the tricycle and brought him to
gun at Rolito, he parried the gun causing it to fire, and a bullet hit Rolito. the Tanay General Hospital.[8]
Then, SPO1 Cura pointed the gun at him but he was able to hold Curas
wrist and the two of them grappled for the gun until both of them reached Andreo Poblete, employer of Alexander; Florita Deligencia, a passenger of
the drivers seat of the jeep. It was then that the gun fired, hitting Rolito and Ferdinand; and Larry Anievas, a bystander, also testified to
somebody. The gun fell on the pavement. He picked up the gun and ran corroborate the story of the three accused.
towards Pililla where he was met by a soldier who fired warning shots. He
voluntarily surrendered to the police.[6] On February 24, 1997, the trial court rendered a joint decision, thus:

ROLITO SALVA essentially corroborated his brothers testimony. He added WHEREFORE, in view of the foregoing, judgment is hereby rendered:
that during the struggle for the gun, it accidentally fired and a bullet hit
Milanes. According to him, Ferdinand asked Alexander to bring him to the 1. In Criminal Case No. 1476-T:
Tanay General Hospital where his right foot was treated. He recalled that
he came to know that on January 9, 1995, the jeep of Milanes had a) Convicting Alexander Salva of the crime of Murder and he is hereby
suddenly stopped, causing damage to the front of Ferdinands tricycle. He sentenced to suffer the penalty of reclusion perpetua.
reported the incident to his brothers and they tried later to look for
Milanes. Because of the injury Rolito suffered during the shooting incident b) Convicting Ferdinand Salva of the crime of homicide and he is hereby
on January 10, 1995, Rolito filed an attempted homicide case against SPO1 sentenced to suffer the indeterminate penalty of 8 years and 1 day of
Cura, which is still pending before the MTC of Tanay, Rizal.[7] prision mayor as minimum to 15 years of reclusion temporal as maximum.

According to appellant ALEXANDER SALVA, on January 10, 1995, at about c) Acquitting Rolito Salva of the crime charged.
7:00 A.M., he was at Hulo, Pililla, Rizal on an errand to get money from his
employer, Andy Poblete. He failed to get the money but while on his way d) Both accused Alexander Salva and Ferdinand Salva are also ordered to
to Tanay, his brother Ferdinand saw him and asked him to board the pay jointly and severally to the heirs of Palmero Milanes the amount of
tricycle where his other brother Rolito and two passengers were riding.

120
P12,000.00 as actual damages, P100,000.00 as moral damages, and to pay III
the costs.
CONVICTING ACCUSED ALEXANDER SALVA OF FRUSTRATED HOMICIDE
2. In Criminal Case No. 1486-T: NOTWITHSTANDING UNREBUTTED PROOF THAT SAID ACCUSED RUSHED
TO THE SCENE ONLY IN DEFENSE OF HIS YOUNGER BROTHER, ROLITO
a) Convicting accused Alexander Salva of the crime of frustrated homicide SALVA.
and he is hereby sentenced to suffer the indeterminate penalty of 6 years
of prision correctional as minimum to 10 years of prision mayor as IV
maximum. The said accused is also ordered to pay SPO1 Mariano Cura the
amount of P36,000.00 as actual damages, P50,000.00 as moral damages AWARDING MORAL DAMAGES BOTH TO THE FAMILY OF THE DECEASED
and P10,000.00 as attorneys fees. AND SPO1 MARIANO CURA IN THE ABSENCE OF PROVEN CIRCUMSTANCES
JUSTIFYING IMPOSITION OF THE SAME.[14]
b) Acquitting accused Ferdinand and Rolito Salva of the crime charged.
Appellant Alexander Salva claims that he cannot be held liable for murder
SO ORDERED.[9] in Criminal Case No. 1476-T, because the stab wounds of Milanes were not
the cause of his death.[15] Further, he protests the trial courts finding that
From this decision, Alexander and Ferdinand Salva filed a notice of appeal his stabbing Milanes was attended by treachery. He insists that he stabbed
on March 3, 1997.[10] On December 4, 1998, Ferdinand Salva filed a Milanes in defense of his two (2) brothers. He further assails the trial
motion to withdraw appeal,[11] which we granted in a resolution dated courts ruling that his brother Ferdinand was liable for homicide because
January 11, 1999.[12] We are now concerned only with Alexander Salvas Milanes was accidentally hit by the gun while Ferdinand and SPO1 Cura
appeal.[13] were grappling for it. He also claims that the identity of the person who
fired the shot that killed Milanes was not positively established.
In his brief, appellant Alexander Salva now contends that the lower court
gravely erred in: In Criminal Case No. 1486-T, appellant assails his conviction for frustrated
homicide for the stabbing of SPO1 Cura. Again, he claims he was merely
I acting in defense of his brothers. He adds, that his offense was only for
physical injuries. He had no intention of killing Cura and it was Milanes
CONVICTING ACCUSED ALEXANDER SALVA OF MURDER IN THE TOTAL who provoked them while it was SPO1 Cura who hit his brother Rolito with
ABSENCE OF PROOF THAT THE ACT OF THE LATTER CAUSED THE DEATH OF a yantok.
THE VICTIM OR THAT TREACHERY CHARACTERIZED THE STABBING OF THE
VICTIM. In its brief for the appellee, the Office of the Solicitor General contends
that the trial court did not err in its assessment of the credibility of the
II witnesses, and in giving full faith and credence to those of the prosecution.
The OSG adds that the trial court did not overlook facts, which if
CONVICTING FERDINAND SALVA OF HOMICIDE IN THE ABSENCE OF PROOF considered, would alter the result of the case. The OSG prayed for the
BEYOND REASONABLE DOUBT THAT SAID ACCUSED ACTUALLY FIRED THE affirmance of the conviction of appellant and the penalties imposed.
GUN THAT HIT THE VICTIM.

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In a criminal case, an appeal throws the whole case wide open for review. appellants testimony on record to be unconvincing, confused, and evasive.
Issues whether raised or not by the parties may be resolved by the Hence there is no sufficient proof of defense of relatives which, like self-
appellate court.[16] However, considering the assigned errors, we find that defense, must be proved positively and convincingly.
the issues for resolution here pertain to (1) the assessment of credibility of
the witnesses; (2) the presence of treachery as a qualifying circumstance, Neither does appellants contention, that it was uncertain whether it was
and of defense of relatives as a justifying circumstance; and (3) the SPO1 Cura or Ferdinand Salva who pulled the trigger, have any merit. SPO1
propriety of conviction of the appellant for murder and for frustrated Cura and Elmer Figueroa categorically testified that it was Ferdinand who
homicide, and of the corresponding sentences imposed. shot Milanes while the latter was trying to start the engine of his jeep in
order to escape.[25]
Anent the first issue, the assessment of the credibility of witnesses by the
trial court is generally accorded great respect.[17] In this case, the trial We now come to the nature of the offense committed by appellant and
court found that appellant and his co-accused were positively and the propriety of his conviction for murder. After a careful consideration of
categorically identified as the offenders by the surviving victim, SPO1 Cura, the evidence on record, we are convinced that the crime committed by
and corroborated by eyewitnesses Figueroa and Tan. These witnesses Alexander Salva is homicide only, not murder qualified by treachery.[26]
testified that appellant and his brother Ferdinand grabbed the victim,
Palmero Milanes, out of the jeepney by pulling his left hand.[18] Treachery (alevosia) is committed when two conditions concur, namely: (1)
Thereafter, appellant Alexander stabbed Milanes at the back using a 29 or that the means, methods, and forms of execution employed gave the
a fan knife, while Ferdinand had his arms around Milanes neck.[19] The person attacked no opportunity to defend himself or to retaliate; and (2)
knife lacerated the victims lungs.[20] Thereupon, SPO1 Cura alighted from that such means, methods and forms of execution were deliberately and
the jeep to pacify them, but appellant Alexander turned to Cura and also consciously adopted by the accused without danger to his person.[27] In
stabbed him in the stomach as the police officer was about to fire a this case, attendant circumstances including the sequence of events, as
warning shot.[21] Alexander and Ferdinand let go of Milanes and then found by trial court and as shown by the records, rule out the presence of
assaulted Cura. But when the wounded Milanes had forced himself onto the first element of alevosia. True, appellant stabbed Milanes at the back
the drivers seat of the jeepney and started its engine to escape, Ferdinand while Ferdinand encircled his arm in a tight grip around the victims neck.
shot and hit him at the back.[22] But recall, however, that Milanes was together with an armed policeman
(SPO1 Cura), Rodney Tan, and other passengers.[28] There were also on-
The trial court found that both appellant Alexander and his brother lookers. Note likewise that the incident happened at past 7 oclock A.M.[29]
Ferdinand inflicted the wounds that caused the death of the deceased. The during a traffic jam.[30] The presence of Cura (albeit in civilian attire) and
testimonial evidence and the physical evidence support said finding. The his companions who came to Milanes rescue shows that the victim was not
official report stated that the cause of death of Milanes was hemorrhage completely helpless.[31]
resulting from gunshot and stab wounds in the trunk of his body.[23]
Neither is there sufficient evidence to establish that appellant consciously
Appellants claim that he acted in defense of relatives (brothers), in our adopted the mode of attack. The records reveal that (1) a day earlier there
view, cannot be sustained. To invoke this justifying circumstance was a mishap involving Milanes jeepney and Ferdinand Salvas tricycle; and
successfully, there should be reasonable necessity for the action taken as (2) a verbal confrontation[32] with curses had ensued between appellants
well as the means used.[24] Here, the weapon used and the grave wounds brother Ferdinand and Milanes. This was before the adversaries found
inflicted on the victims negate the reasonableness of appellants action themselves in a traffic jam and the Salvas yanked Milanes out of the
taken allegedly in defense of his brothers. Moreover, on this point, we find jeepney.[33] Treachery is not present where the victim, before being

122
attacked, had a heated argument with one of the malefactors which must defendant but to compensate the heirs of the victim. Pursuant to current
have placed him on guard, aside from standing face to face with them, so jurisprudence, the award of moral damages should only be P50,000. But
that the initial assault was not sudden or unforeseen.[34] Even if the civil indemnity in the amount of P50,000 for the death of Palmero Milanes
aggression was from behind, it is not treacherous if preceded by a heated should likewise be awarded to his heirs. The award of P12,000 for actual
argument.[35] damages[42] is supported by the evidence and should be affirmed. In
Criminal Case No. 1486-T, for frustrated homicide, the award of P50,000 as
Finally, as SPO1 Cura himself admitted on cross-examination, the meeting moral damages to SPO1 MARIANO CURA is properly reduced to
between the two groups was accidental, while the two vehicles where they P20,000.[43] But the award of P36,000 as actual damages should be
were on board were not moving due to the heavy traffic. It was only upon increased to P46,770.65 in accordance with the evidence presented. [44]
sighting Milanes, after 10 to 15 minutes while on a traffic standstill, did Finally, the award of P10,000 for attorneys fees is proper and ought to be
appellant and co-accused assault Milanes.[36] Treachery cannot be affirmed.
considered when the meeting between the victim and the accused was
only accidental.[37] WHEREFORE, the decision appealed from is AFFIRMED with
MODIFICATIONS. In Criminal Case No. 1476-T, appellant ALEXANDER
In sum, we agree with appellant that the killing of Milanes was not SALVA is found guilty of homicide. He is sentenced to suffer an
characterized by treachery, hence it was only homicide and not murder. indeterminate penalty of ten (10) years of prision mayor as minimum to
Appellants conviction for frustrated homicide for the stabbing of SPO1 seventeen (17) years and four (4) months of reclusion temporal as
Cura, however, must be sustained. Appellants intent to kill as earlier maximum. He is further ordered to pay jointly and severally with his co-
discussed is reflected by the weapon he used; and the nature and position accused Ferdinand Salva, the heirs of PALMERO L. MILANES, the amount of
of the wounds inflicted.[38] Dr. Viado testified that SPO1 Cura suffered P50,000 as civil indemnity and P12,000 as actual damages but only P50,000
thru and thru laceration of the gall bladder, stomach and the jejunum as a as moral damages.
result of the stabbing by appellant.[39] Were it not for timely medical
attention, SPO1 Cura would have died from said wounds. In Criminal Case No. 1486-T, appellant ALEXANDER SALVA is found guilty of
frustrated homicide, and he is sentenced to an indeterminate prison term
Coming now to the propriety of the sentences imposed on appellant. of one (1) year and one (1) day of prision correccional, as minimum, to
Without any mitigating or aggravating circumstance, the penalty for eight (8) years and one (1) day of prision mayor medium, as maximum.[45]
homicide is reclusion temporal, imposed in its medium period. Applying He is also ordered to pay SPO1 MARIANO CURA the amount of P46,770.65
the Indeterminate Sentence Law, appellants sentence should be prision as actual damages, P20,000 as moral damages and P10,000 as attorneys
mayor to reclusion temporal in its medium period, for the death of fees.
Palmero Milanes. The penalty for frustrated homicide, which is one degree
lower, is prision mayor,[40] imposed in its medium period. Again applying SO ORDERED.
the Indeterminate Sentence Law, appellant should be sentenced to prision
correccional to prision mayor in its medium period,[41] for the frustrated
homicide in the stabbing of SPO1 Cura. [G.R. No. 127441. October 5, 2001]

On the award of damages. The award of P100,000 as moral damages in DOROTEO TOBES @ DOTING, petitioner, vs. COURT OF APPEALS, and
Criminal Case No. 1476-T does not appear to be amply supported by the PEOPLE OF THE PHILIPPINES, respondents.
evidence on record. Moral damages are not awarded to punish the

123
DECISION WHEREFORE, the Court hereby declares the accused DOROTEO TOBES alias
DOTING guilty of the crime of HOMICIDE beyond a reasonable doubt, as
PARDO, J.: principal, and considering the presence of one mitigating circumstances
without any aggravating circumstance to offset the same, hereby
Appeal via certiorari from the decision[1] of the Court of Appeals affirming sentences him to suffer an indeterminate penalty ranging from EIGHT (8)
with modification[2] the trial courts decision finding petitioner guilty of YEARS OF prision mayor, as minimum, to TWELVE (12) YEARS, TEN (10)
homicide and sentencing him to an indeterminate penalty of eight (8) MONTHS and TWENTY (20) DAYS of reclusion temporal, as maximum, and
years of prision mayor as minimum, to twelve (12) years, ten (10) months to pay the costs. Likewise, the Court condemns the said accused to
and twenty (20) days of reclusion temporal, as maximum, to indemnify the indemnify the heirs of the victim Joel Escareal in the amount of P12,000.00
heirs of the victim Joel Escareal in the amount of P12,000.00, moral to pay the widow and children of the same victim moral damages of
damages of P20,000.00, actual damages of P6,000.00 and attorneys fees of P20,000.00, actual damages of P6,000.00 and attorneys fees of P5,000.00.
P5,000.00 and to pay the costs. However, the corresponding filing fees based on the total amount herein
awarded, shall be assessed and shall constitute as first liens upon the total
On August 27, 1990, the provincial prosecutor of Northern Samar filed with amount of awards herein ordered.
the Regional Trial Court, Northern Samar, at Catarman an information
charging accused Wilfredo Pollentes @ Pido and Doroteo Tobes @ Doting The Court hereby finds accused WILFREDO POLLENTES alias PIDO guilty
with murder, as follows: beyond a reasonable doubt of the felony of SLIGHT PHYSICAL INJURIES and
considering one mitigating circumstance without any aggravating
That on or about the 8th day of July, 1990, at about 8:30 oclock in the circumstance, sentences him to suffer TEN (10) days of arresto menor and
evening, in Barangay Sta. Clara, Municipality of Bobon, Province of to pay the costs.
Northern Samar, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, armed with a gun, conspiring with and In the service of their sentence, the accused shall be credited with the full
confederating together and mutually helping each other, with deliberate time of their preventive imprisonment provided they had agreed
intent to kill and thru treachery and evident premeditation and taking voluntarily in writing to abide by the same disciplinary rules imposed upon
advantage of their superior strength, did then and there, wilfully, convicted prisoners; otherwise, they shall be entitled to only four-fifths
unlawfully and feloniously attack, assault and shoot one JOEL ESCAREAL (4/5) thereof; pursuant to the provisions of Article 29 of the Revised Penal
with the use of the said gun, which the accused had provided themselves Code as amended by Republic Act 6127.
for the purpose, thereby inflicting upon said Joel Escareal a gunshot wound
which caused the instant death of said victim. SO ORDERED.[4]

CONTRARY TO LAW.[3] On July 05, 1991, petitioner appealed the decision to the Court of
Appeals.[5]
On September 13, 1990, the trial court arraigned both accused. They each
entered a plea of not guilty. Trial ensued. On December 3, 1996, the Court of Appeals promulgated its decision
affirming the appealed decision with modification. We quote the decretal
After due trial, on June 21, 1991, the trial court rendered a decision, the portion:
dispositive portion of which reads:

124
WHEREFORE, premises considered, the decision appealed from is hereby
AFFIRMED with a MODIFICATION that the awarded civil indemnity be At the place where the victim was shot by the accused Tobes, were two
increased from P12,000.00 to P50,000.00. Costs against the appellant. electric bulbs one placed outside the AM Disco house and another at the
NORSAMELCO post. When the shooting incident herein complained of took
SO ORDERED.[6] place, prosecution witnesses Cenon Cobrana and Joverto Sula were just
nearby; in fact, Cobrana was about 5 meters away while Sule was more or
Hence, this appeal.[7] less 3 meters in distance.[8]

The facts, as found by the trial court and upheld on appeal by the Court of The issues raised are:
Appeals, are as follows:
(1) whether or not there was unlawful aggression on the part of the victim;
That at about 8:00 oclock in the evening of July 8, 1990, the victim Joel
Escareal alias Willy was walking towards the door of AM Disco house (2) whether the mitigating circumstances of incomplete defense of
situated at the corner of Escareal and Duran Sts. in Bobon, Northern relative/stranger, sufficient provocation or threat on the part of the victim,
Samar; he was fixing up the zipper of his trousers as he was proceeding on passion and obfuscation and voluntary surrender may be appreciated in
his way. Accuse Wilfredo Pollentes alias Pido who came out of the door of favor of petitioner; and
the AM Disco house met Escareal and confronted the latter why he threw
bottles to the former. Pollentes was holding the shoulder of Escareal and (3) whether or not the penalty and civil indemnity imposed are correct.[9]
after uttering the statement to confront, boxed the latter on his chin. Joel
Escareal fell down, face up, and as he was about to rise, Wilfredo Pollentes Petitioner admitted killing the victim Jose Escareal. He, however,
poised to box again the said Escareal. At this juncture, Joel Escareal drew interposes the justifying circumstance of self-defense or defense of a
his Cal. 38 revolver from his waistline and shot Pollentes who was thereby stranger. The elements of self-defense are the following:
hit on his body. The Pollentes walked to the street, while Joel Escareal just
stood near the door of the AM Disco house, looking to Pollentes as the (a) unlawful aggression on the part of the victim;
latter was moving away; Escareals back was then towards the door of the
AM Disco and he was still holding by his right hand the revolver which he (b) reasonable necessity of the means employed to the victim; and,
used in shooting Pollentes. At this moment, accused Doroteo Tobes went
out of the door of the Disco house, and as he was behind, place his arm (c) lack of sufficient provocation on the part of the person defending
around the neck of Escareal and hurled him (Escareal) who thereby fell on himself, which must be proved by clear and convincing evidence.[10]
his back on the ground; the revolver of Escareal was likewise thrown to the
ground near his foot when Tobes hurled him down. As Escareal lay face up, In such case, the burden of evidence shifted to the accused[11] to prove
Tobes then picked the firearm and shot Escareal on his left temporal area the elements of self-defense by clear and preponderant evidence,
as his head was slightly tilted to its right side. After he fired at Escareal, otherwise conviction would follow from his admission that he killed the
Tobes then fired another shot to the air. victim.[12]

The gun of Escareal that was used by accused Tobes, was Cal. 38 revolver, It is not disputed that in the evening of July 8, 1990, after the bottle-
with Serial No. 434872 which accused Tobes gave to policeman Eleuterio hurling incident inside the disco house, Joel Escareal went outside. It was
Celespara in the presence of a certain Ben Esquillo, a retired policeman. there that accused Wilfredo Pollentes met Joel Escareal and confronted

125
the latter about the incident inside and boxed him causing Joel Escareal to WHEREFORE, the Court denies the petition and affirms the decision[17]
fall to the ground face up. When accused Pollentes was poised to strike sought to be reviewed, with costs.
Joel Escareal again, the latter drew his gun and shot accused Pollentes,
who, upon being hit, retreated towards the direction of the street. Joel SO ORDERED.
Escareal was by then standing with his back to the door of the disco house
when petitioner came out and, from behind, placed his arm around Joel
and hurled him to the ground causing him to fall on his back. The revolver G.R. No. 129875 September 30, 2005
he was holding was also thrown to the ground and landed near his foot.
Petitioner Doroteo Tobes picked up the gun and shot Joel Escareal on the JOVITO CABUSLAY, Petitioners,
left temporal area as his head was slightly tilted to the right. Petitioner vs.
Tobes then fired a second shot into the air. PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN (Third Division),
Respondent.
The foregoing facts show that the plea of self-defense or defense of a
stranger would not lie. When petitioner attacked the victim, the aggression DECISION
by the victim against accused Pollentes no longer existed. Joel Escareal was
standing with his back to the door without doing anything but watching Tinga, J.:
accused Pollentes walk away. A person defending a relative or stranger
must find out who the aggressor was before undertaking the defense.[13] Assailed in this petition for review1 under Rule 45 of the 1997 Rules of Civil
Thus, when petitioner attacked Joel Escareal, petitioner was not defending Procedure is the Decision2 dated 25 June 1997 of the Sandiganbayan in
himself. In fact, it was petitioner who was the aggressor. Criminal Case No. 19586 finding Jovito Cabuslay, petitioner herein, guilty
beyond reasonable doubt of the crime of homicide and sentencing him as
In the absence of unlawful aggression on the part of Joel Escareal, there follows:
can be no self-defense, complete or incomplete.[14]
WHEREFORE, accused Celso G. Regencia, Rosello Canoy, Nilo Montebon
Petitioner submits that the mitigating circumstances of sufficient and Gerry Cane are ACQUITTED on reasonable doubt. Accused Jovito
provocation or threat on the part of the deceased or passion or Cabuslay is found GUILTY beyond reasonable doubt of the crime of
obfuscation may be appreciated in his favor. homicide and is sentenced to an indeterminate penalty of imprisonment of
Ten (10) years and One (1) Day of prision mayor as minimum, to Fourteen
As a fact, there was no threat or provocation directed at petitioner, then (14) Years, Eight (8) Months and One (1) Day of Reclusion Temporal, as
he could not have been provoked into passion or obfuscation.[15] maximum, with all the accessory penalties provided for by law, and to
indemnify the heirs of Pacquito Umas-as in the amount of Fifty Thousand
On the other hand, the trial court appreciated the mitigating circumstance Pesos (₱50,000.00) for actual damages and Fifty Thousand Pesos
of voluntary surrender in petitioners favor. (₱50,000.00) for moral damages, and to pay the costs.

The increase in civil indemnity from P12,000.00 to P50,000.00 is consistent SO ORDERED.3


with current jurisprudence.[16]
In an Information4 dated 10 August 1993, petitioner SPO2 Jovito Luna
Cabuslay, Senior Inspector Celso Gomera Regencia, SPO4 Rosello

126
Rodriguez Canoy, C2C Nilo Rico Montebon and C2C Gerry Orillaneda Cane At around 8:30 in the morning of 5 August 1992, Leoncio Tagapulot
were charged with murder, committed as follows: Zaragosa, a refrigeration technician helper and resident of Roosevelt
Street, Iligan City, was conversing with Felix Lauriana10 near the school
That on or about August 5, 1992, in Kauswagan, Lanao del Norte, building in Lapayan, Libertad, Kauswagan, Lanao del Norte when a
Philippines, within the jurisdiction of this Honorable Court, the said Hammer (Hummer) truck parked in front of them.11 Four policemen
accused, SENIOR INSPECTOR CELSO G. REGENCIA, SPO4 ROSELLO CANOY, alighted, followed by a driver. The police thereafter halted the collector
SPO2 JOVITO CABUSLAY, C2C NILO MONTEBON AND C2C GERRY CANE, all who was riding a motorcycle from Lapayan. The collector was wearing a
public officers, being then members of the Philippine National Police blue denim jacket with folded sleeves and blue denim pants.12
assigned at the PNP Provincial Headquarters of Lanao del Norte, acting in
the capacities aforesaid and conspiring, confederating and helping one The police asked the collector to show his identification card (ID). The
another, while manning a collector took the ID out of his left pocket and when it reached the "front
man," one of the policemen, who Zaragosa later verified as the petitioner,
mobile checkpoint at Libertad, Kauswagan, Lanao del Norte, thus opened fire at the collector whose right hand was then raised. The four
committing the offense in relation to office, and with intent to kill, did then other policemen meanwhile had their firearms pointed at the collector. 13
and there wilfully, unlawfully, feloniously and treacherously shoot
PAQUITO UMAS-AS, with their firearms, thereby inflicting mortal wounds Petitioner, who was four meters away from the collector, consumed the
upon the latter which caused his instantaneous death.5 entire magazine of his M-16 armalite in firing at him. The collector fell to
the ground and was still moving when the police placed him on board a
On arraignment, petitioner and his co-accused all pleaded not guilty. vehicle and brought him to Kolambugan.14 One of the policemen rode on
Forthwith, trial ensued with the prosecution presenting as witnesses Dr. the collector’s motorcycle and likewise headed for Kolambugan.15
Tammy Uy, Bernabe Purificacion Arenga, Leoncio Tagapulot Zaragosa and
Generoso Caayao Umas-as. Upon the request of Pedro P. Legaspi, barangay captain of Bulua, Cagayan
de Oro City,16 NBI forensic chemist Bernabe P. Arenga examined the
The prosecution presented evidence proving the following as facts: victim’s body, later identified as Paquito Umas-as, on 10 August 1992 to
determine the presence of gunpowder nitrates on his hands. Arenga’s
Paquito Umas-as, 34, was one of the four children of Generoso Umas-as of report revealed that the victim was negative for gunpowder nitrates.17
Bulua, Cagayan de Oro City. Still single, Paquito earned a living as a Arenga opined that on the average, nitrates would be lost within a
collector of payments for assorted articles such as jackets, mats, thermos seventy-two (72)-hour period; that there had been instances when the
and plates that he sold on credit. Paquito collected as much as ₱70,000.00 substance would remain on a living person up to nine days; that nitrates
for a period of four months and the net profit of such collections was could not penetrate rubber gloves; that no amount of washing can remove
divided equally between him and his employer. 6 the nitrates; and that even the application of formalin does not affect the
presence of nitrates in the hands of a person.18
In collecting payments, Paquito used a motorcycle he bought on credit
from his employer.7 His collection brought him to such places as Manticao, On 11 August 1992, Dr. Tammy Uy, a medico-legal officer of the NBI in
Iligan and Kolambogan.8 He rented a house in Iligan City but every Cagayan de Oro City, conducted a post-mortem examination on the body
fifteenth (15th) day of the month, Paquito would go home to his family to of Paquito Umas-as. At the time of examination, the victim’s body had
give them a sack of rice.9 already been cleaned and embalmed. Dr. Uy’s examination disclosed that
the cause of death was severe hemorrhage secondary to multiple gunshot

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wounds. There were eight (8) gunshot wounds and each wound was At about 8:30 in the morning, a man riding on a red Honda motorcycle23
considered fatal.19 going to the direction of Pagadian City approached the mobile checkpoint.
The motorcycle rider was allegedly wearing a black bonnet, sunglasses,
To prove damages, Generoso Umas-as testified that he lost consciousness sweatshirt and gloves that covered the half portion of his fingers.24
upon learning of the death of his son Paquito. Paquito’s family spent
₱8,000.00 for the wake and ₱10,000.00 for his burial. Paquito had left his Regencia testified that he signaled the motorcycle rider to stop at the right
father ₱12,000.00 to pay for some appliances the former had bought; but side of the road. He asked for the identification card of the motorcycle
the latter, to underwrite funeral expenses, still had to sell his land for rider who pretended to reach for his wallet, but instead pulled out a gun.
₱100,000.00 only ₱25,000.00 of which had been paid in advance by the He heard a shot and his thigh went numb. As he rolled to the ground, he
buyer. However, Generoso could not remember where he placed the heard a volley of gunshots after which petitioner approached him.
receipts for the wake and burial expenses.20 Regencia then approached the motorcyclist and removed his bonnet to be
able to identify him. Regencia later found out that the motorcyle rider was
The defense presented a different version of the commission of the crime. shot by petitioner. 25
Petitioner presented as witnesses Julmunier Akbar Jubail, Celso Gomera
Regencia and Jovito Luna Cabuslay. Regencia ordered his men to load the motorcycle rider to the truck. The
victim later identified as Paquito Umas-as was still alive when he was
Police Superintendent Julmunier A. Jubail, Provincial Director of the loaded on the hummer vehicle to be brought to a hospital, but was
Philippine National Police (PNP), Lanao del Norte Command stated that he pronounced dead on arrival by Dr. Caga, the attending physician. Regencia
had received a reliable intelligence report of a plot to assassinate the then asked that he be given first-aid treatment for the wounds he
Mayor and Vice-Mayor of Kauswagan, Lanao del Norte and Governor sustained. He thereafter turned over the rider’s motorcycle, sunglasses
Abalos and his family. In response to the intelligence report, he dispatched and revolver to the police station at Kauswagan. And after bringing the
a team of PNP personnel to conduct mobile checkpoints along the national victim’s body to a funeral home in Kolambugan, he proceeded to Baroy
highways in several municipalities and to check on people who would General Hospital where his wounds were treated by a certain Dr. Fabin.26
possibly carry out the plot. Jubail claims that the intelligence report was
proven accurate after a few months because the Vice-Mayor of Kauswagan To prove that he was wounded during the incident, Regencia showed to
was killed in Samborong, Linamon and in December of the same year, the court a quo the scars caused by the gunshot wounds. There were three
Governor Abalos was assassinated in Iligan City.21 scars, one of which was the entry of the bullet and the other two were
splinter wounds. He said that the bullet used was the kind that splinters
The team headed by Senior Inspector Celso G. Regencia included SPO4 upon hitting an object. He presented a medical certificate under the
Rosello Canoy, SPO2 Jovito Cabuslay, C2C Nilo Montebon and C2C Gerry signature of Dr. Demterio U. Opamen, Jr.27
Cane. Their area of responsibility consisted of the twenty-two (22)
municipalities of Lanao del Norte. In full military outfit, save for Canoy as For his defense, petitioner confirmed Regencia’s testimony that the latter
he was assigned to the Intelligence Operatives Command, the men had directed an approaching motorcyclist to stop at the right side of the
established a mobile checkpoint on 5 August 1992 at the national highway, highway. He heard Regencia ask the motorcycle rider in Visayan dialect to
Barangay Libertad, Kauswagan, Lanao del Norte for the purpose of show his identification card. Cabuslay then saw Paquito Umas-as shoot
intercepting armed men who intend to carry out the assassination plot.22 Celso Regencia. This and his belief that he was the next target prompted
him to shoot the motorcycle rider with his M-16.28

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Police Superintendent Jubail was immediately informed of the incident and
on the basis of Regencia’s account, he sent out a "Spot Report"29 to Police Blotter Page Nr. 501-Entry Nr.9228=
inform Recon 9 and 13. The report is couched as follows:
251315H Aug 1992 – Impounded Honda Motorcycle x x x.
"SPOT REPORT x x x CMM SPO2 JOVITO CABUSLAY CMM INSP REGENCIA’S
BACK-UP OPEN FIRE (sic) HITTING AND FATTALY (sic) WOUNDING SAID Police Blotter Page Nr. 508-Entry Nr. 9100=
UNIDENT(IFIED) PERSON WWITH (sic) MULTIPLE GUNSHOT WOUNDS IN
HIS BODY AND DIED ON THE SPOT PD RESPONDING PNP ELEMETS 021130H Oct 1992 – COP Bartolini RD got the one deposited rev. cal. 38
RECOVERED FROM THE VICTIM’S BODY ALFA CAL. 38 REVOLVER SMITH SW S#236701 w/ (4) four live ammo and one empty shell past 30th day of
AND WESSON (HM) SN 236701 WITH ONE (1) EMPTY SHELL AND 5 Sep 92 for NBI examination at Cagayan de Oro City.
UNSPENT AMMO x x x "
Petitioner justified the shooting of Paquito Umas-as because he believed
The incident found its way to the police blotter of the police station of that he would be the next person to be shot at by the victim; and having
Kauswagan, Lanao del Norte.30 It is embodied in a Certification31 signed acted in defense of his person and that of his superior officer, he asserted
by Inspector Fulgencio dela Pena Raguine, Chief of Police, issued at the before the court a quo that he has no criminal liability because of the
request of Atty. Arthur Abundiente for trial purposes and formulated in attendance of the following circumstances: (a) unlawful aggression on the
this wise: part of the victim; (b) reasonable necessity of the means employed to
prevent or repel the unlawful aggression of the victim; (c) lack of sufficient
Police Blotter Page Nr. 496-Entry Nr. 9187 & 9188= provocation on his part, and in the case of defense of his superior officer,
he was not induced by revenge, resentment, or other evil motives. All of
050810H Aug 1992 – SPO3 Nestor S Ortiz, Intel NOR this station, left stn these requisites being present, petitioner claimed there was legal
with elements from Lanao del Norte PNPC under INSPECTOR CELSO G justification for shooting Paquito Umas-as.32
REGENCIA PNP and proceeded to Libertad, Kauswagan, LN to follow-up
suspects allegedly hired for killing Mpl Mayor Myron B. Rico of Kaus, LN. The Sandiganbayan however grave credence to the version of the
prosecution and rejected the version of petitioner. So, it found him guilty
050835H Aug 1992 – SPO3 Nestor Ortiz PNP returned station informed beyond reasonable doubt of the crime of homicide. It accorded full faith
that suspects were intercepted at Libertad, Kaus, LN but when confronted and credence to the testimony of Zaragosa as it was "categorical,
by the PNP team, fired and shot INSPECTOR CELSO G REGENCIA PNP using straightforward, spontaneous and consistent." Moreover, it observed that
cal. 38 revolber (sic) (Homemade) hitting on his right thigh prompting SPO3 no proof was adduced to show that Zaragosa was moved by some evil
Cabustay (sic), fired back to the suspect hitting at the chest causing the motive to falsely testify against the accused Cabuslay.33
instantaneous death of the suspect. One cal. 38 revolber (sic) (Homemade)
with 5 live ammos and one empty shell at the chamber, one rayban The Sandiganbayan likewise noted grave deficiencies in the evidence of the
(sunglass) and one motorcycle (Honda-Camel backtype) color red with out defense as follows: (1) The physical existence of the handgun allegedly
plate Nr. used by the victim Paquito was not established as the same was not
presented before the court during the trial;34 (2) The affidavit executed by
Police Blotter Page Nr. 497- Entry Nr.9191= Gualberto Dayot Pasco-presented by the defense to impeach the
credibility of Zaragosa-was taken under intimidating and dubious
081240H Aug 1992 – Romeo Umas-as, 42 years old x x x. circumstances, which fact creates doubt as to the affidavit’s voluntariness

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and credibility;35 (3) The medical certificate purportedly evidencing that
Regencia had been shot has no probative value as the doctor who While the rule that the factual findings of the court a quo are generally not
executed the same did not testify during trial. Notably, the medical disturbed on appeal because the trial judge had the best opportunity to
certificate was executed by a doctor different from the one who treated observe them and the manner by which they testify is concededly not
Regencia’s wound;36 (4) The number of gunshot wounds inflicted upon applicable to the instant case considering that the ponente of the assailed
the victim betrays petitioner’s claim of reasonable necessity of the means Decision was not the one who heard all the witnesses, nevertheless, after a
used to repel the unlawful aggression allegedly displayed by the victim.37 careful review of the records of the case, the Court finds no reason to
disturb the conclusions reached by respondent court. As held in Hugo v.
Hence, petitioner filed the instant petition before the Court, insisting that Court of Appeals,45 "the efficacy of a decision is not necessarily impaired
the Sandiganbayan erred in not crediting him the justifying circumstance of by the fact that the ponente only took over from a colleague who had
self-defense or defense of a stranger or the lawful exercise of a right or earlier presided over the trial. For it does not follow that a judge who was
office.38 not present during the trial cannot render a valid and just decision."

Pursuant to the Court’s Resolution39 dated 3 September 1997, the Office Moreover, it should be stressed that the Sandiganbayan, which functions
of the Solicitor General (OSG) submitted before the Court a Manifestation in divisions of three Justices each, is a collegial body which arrives at its
and Motion In Lieu Of Comment40 to aid the resolution of the instant decisions only after deliberation, the exchange of view and ideas, and the
petition. In said manifestation, the OSG stated that it is the Office of the concurrence of the required majority vote.46
Ombudsman which should represent the People in cases elevated to the
Court from the Sandiganbayan except in cases filed under Executive Orders Simply put, the ponente of the assailed Decision is not the Third Division of
Nos. 1, 2, 14, and 14-A issued in 1986. Nevertheless, it opined that the the Sandiganbayan. He alone does not speak for and on behalf of his
conviction of petitioner should be reversed because the evidence of the Division. Each Division of the Sandiganbayan is a three-man body whose
prosecution when pitted against that of the defense "may not stand close members each have one vote to cast in every deliberation concerning a
scrutiny." It also asserted that the ponente of the appealed decision was case or any incident therein that is within its jurisdiction.
not yet a member of the Third Division when the witnesses testified and
when the parties presented their evidence; hence, the applicability of the We have minutely scrutinized the assailed Decision and find it amply
Court’s ruling in People v. Gutual,41 that no respect can be accorded to the supported by the evidence on record.
trial court’s findings of fact where the judge who penned the questioned
decision heard only one of the witnesses and only at the sur-rebuttal Petitioner claims that he acted in self-defense and in defense of Regencia.
stage.42
One who invokes self-defense admits responsibility for the killing.
In its Comment,43 the Office of the Ombudsman through the Office of the Accordingly, the burden of proof shifts to the accused who must then
Special Prosecutor seeks the denial of the instant petition on the ground prove the justifying circumstance. He must show by clear and convincing
that the defense failed to impeach the credibility of Zaragosa. It agrees evidence that he indeed acted in self-defense, or in defense of a relative or
with respondent court that petitioner’s story was contrary to human a stranger. With clear and convincing evidence, all the following elements
experience and hence, it correctly debunked self-defense and defense of a of self-defense must be established: (1) unlawful aggression on the part of
stranger as grounds for petitioner’s acquittal.44 the victim; (2) reasonable necessity of the means employed to prevent or
repel it; and (3) lack of sufficient provocation on the part of the person
The petition is without merit. claiming self-defense.47

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was behind him and was parked about three to four meters from the
Self-defense, like alibi, is a defense which can easily be concocted. It is national highway.52 He also stated that Paquito could not have seen the
well-settled in this jurisdiction that once an accused has admitted that he hummer jeep because it was obscured by Muslim houses.53 It only follows
inflicted the fatal injuries on the deceased, it is incumbent upon him in that if from Paquito’s perspective, he cannot see the hummer jeep which is
order to avoid criminal liability, to prove the justifying circumstance a fairly large vehicle, then he could not have seen petitioner as well. If
claimed by him with clear, satisfactory and convincing evidence. He cannot Paquito cannot see petitioner from where he was positioned, then Paquito
rely on the weakness of the prosecution but on the strength of his own could not have possibly aimed to shoot at petitioner. Petitioner’s
evidence, "for even if the evidence of the prosecution were weak it could contention therefore that there was an imminent threat of bodily harm
not be disbelieved after the accused himself had admitted the killing."48 coming from Paquito upon his person is at best illusory. There was no peril,
Thus, petitioner must establish with clear and convincing evidence that the ergo, there was no unlawful aggression.
killing was justified, and that he incurred no criminal liability therefor.
It should also be recalled that at the time, Cane was on top of the hummer
In order that defense of a stranger may be appreciated, the following jeep manning the machine gun.54 If Regencia had indeed been shot as the
requisites must concur: (1) unlawful aggression by the victim; (2) defense insists, then Cane was better situated to defend Regencia. It is
reasonable necessity of the means to prevent or repel it; and (3) the implausible how an officer like him, in such a strategic position and trained
person defending be not induced by revenge, resentment or other evil in the operation of the said weapon could have omitted firing a shot in
motive.49 Regencia’s defense. More to the point, it is beyond credulity that the
outbursts of gunfire hardly elicited any reaction from the other police
Unlawful aggression is the first and primordial element of self-defense. Of officers who were only a few meters away from the crime scene and who
the three requisites, it is the most important. Without it, the justifying continued conducting their search on the bus which was then about to
circumstance cannot be invoked. If there is no unlawful aggression, there is pass the checkpoint.55
nothing to prevent or repel.50
Likewise noteworthy is the fact that after the second burst of fire on
Unlawful aggression refers to an attack or a threat to attack, positively Paquito, knowing that Paquito was still alive56 and in all probability was
showing the intent of the aggressor to cause injury. It presupposes not still holding a handgun,57 petitioner chose to assist Regencia instead of
merely a threatening or an intimidating attitude, but an actual, sudden and making sure that Paquito had been immobilized and disarmed, basic to a
unexpected attack or an imminent danger thereof, which imperils one’s policeman’s training.
life or limb. Thus, when there is no peril, there is no unlawful aggression.51
In addition, the claim of the defense that Paquito shot Regencia on his
It is crucial to ask whether the victim Paquito was an unlawful aggressor. right thigh is untenable. Petitioner would have the Court believe that
We answer this question in the negative. Aggression to be unlawful, must Paquito dared challenge five policemen, four of them in full battlegear, at a
be actual and imminent, such that there is a real threat of bodily harm to checkpoint and armed with only a handgun. This is contrary to ordinary
the person resorting to self-defense or to others whom that person is human experience, as well as the human instinct which is to flee for dear
seeking to defend. life and seek safety. If indeed Paquito was armed and had criminal designs
in his mind, the natural tendency upon seeing a checkpoint ahead would
Petitioner asserts that he was the victim’s next target, thus the need to be to abort one’s plans and leave the premises immediately. Petitioner’s
shoot the victim in self-defense. His claim should be disbelieved. As he story not only was contrary to the ordinary course of nature and the
himself had explicitly testified before respondent court, the hummer jeep

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ordinary habits of life, in all appearances it was also contrived.58 that he took the gun for NBI Examination sometime in the month of
Respondent court was correct in rejecting it. October, 1992, no, on the 30th day of September, 1992.

We also confirm that the medical certificate presented by Regencia to CHAIRMAN:


prove that he had been shot by the victim has no probative value. The
physician who signed the same was never presented as witness for the This was covered by police blotter?
defense. We also note that the physician who signed said medical
certificate, a certain Dr. Demterio U. Opamen, Jr., is different from the ATTY. ABUNDIENTE:
doctor who according to Regencia had treated his wounds.59
Yes, Your Honor.
It is also worthy of note that the defense never presented in evidence the
gun Paquito allegedly use to shoot Regencia. The gun was also not clearly CHAIRMAN:
identified. Unlawful aggression on the part of the victim must be positively
proved and said gun would have been a vital evidence to establish this You don’t need the testimony of Bartolini, but do you have the report of
requisite. the NBI?

Petitioner, however, insists that he would have presented the gun had not ATTY. ABUNDIENTE:
respondent court pressured him to rest his case and submit it for decision.
Such contention hardly inspires belief. Records reveal that petitioner never That is why, Your Honor, because we have not received any
made it known to respondent court that the defense would be presenting communication from Bartolini . . .
the gun allegedly used by Paquito. What the defense did manifest was
their intention to present one Major Bartolino to testify that he had CHAIRMAN:
received the gun allegedly used by Paquito and that he had brought it to
the NBI on 30 September 1992 for examination. It should be underscored How did you come to know that Bartolini sent this firearm to the NBI for
that the defense was not even sure that there was an NBI report on said examination? . . .
examination. The counsel for the defense manifested before respondent
court, as follows: ATTY. ABUNDIENTE:

ATTY. ABUNDIENTE: Because it is stated in the blotter, Your Honor, . . . dated September 1992
for NBI examination in Cagayan de Oro City, Entry No. 91000, page 108 . . .
xxx
CHAIRMAN:
I intended, Your Honor, Please, to present two more witnesses, Major
Bartolini who received the gun and he will testify on this particular Does it matter – whether you can prove the examination report of the NBI
testimony that he was the Station Commander of the municipality of or not?
Kauswagan, Lanao del Norte at the time of the incident and then he
received this gun from the team of Capt. Regencia on August 5, 19 (sic) and ATTY. ABUNDIENTE:

132
I don’t know if there was a report of the NBI examination . . . On the alleged inconsistencies in Zaragoza’s testimony, it is relevant to
state that a witness is not expected to remember an occurrence with
CHAIRMAN: perfect recollection of the minute details. Thus, even the most

Precisely . . ."60 truthful of witnesses may err and often give confusing statements. What is
important is that Zaragosa unwaveringly, forthrightly and unequivocally
The defense was well aware of the relevance of the NBI report to prove declared that petitioner shot at the victim. Neither did he falter in
their allegations that the victim was carrying a gun and used the same on identifying the gunman.65
Regencia, especially since the victim was reported to be negative of
nitrates on his hands. No cogent reason could be thought of for the failure All in all, petitioner has failed to prove unlawful aggression on the part of
to secure a copy of the report or even know of its existence. It should be the victim. Without this essential element, petitioner cannot successfully
noted that the examination was made as early as September 1992. A invoke self-defense. Even assuming that he tried to defend a stranger, his
party’s failure to produce evidence, which if favorable would naturally defense would not prosper. In defense of a stranger, unlawful aggression
have been produced, is open to the inference that the facts were on the part of the victim is also indispensable. In both self-defense and
unfavorable to his case.61 This Court can only conclude that said gun never defense of a stranger, unlawful aggression is a primordial element.
existed, and this explains the failure of the defense to present it before
respondent court. Thus, it is immaterial to delve on the issue raised by the Granting arguendo that there was unlawful aggression, we find that
petitioner on the discrepancy of the make of the gun as noted by petitioner’s contention that he employed reasonable means to repel the
respondent court in its Decision. aggression must fail. It is settled that reasonable necessity of the means
employed does not imply material commensurability between the means
Parenthetically, petitioner stresses that the victim had tested negative for of attack and defense. What the law requires is rational equivalence.66
gunpowder nitrates as the latter had been wearing gloves at the time of
the incident. This claim runs counter to his62 and Regencia’s63 testimony Also, the nature and number of wounds suffered by Paquito negate any
that the only things recovered from Paquito and which were turned over claim of self-defense or defense of a stranger. The Court notes that the
to the Provincial Police Command were the victim’s motorcycle, sunglasses victim sustained eight gunshot wounds which were all fatal as they
and the alleged gun. The police blotter reporting the incident confirms affected vital organs.67 Petitioner testified that he pulled the trigger of his
their testimonies. Interestingly, said police blotter also makes no mention armalite twice.68 He aimed at "the front of his body, at the chest, up to
that gloves were recovered from the victim.64 the stomach."69 Had petitioner merely defended himself from the victim’s
unlawful aggression, one shot to immobilize him would have been enough.
Anent the credibility of Zaragoza, the sole prosecution eyewitness on There was no reason for petitioner to shoot him seven more times, even
whose testimony the version of the prosecution is anchored, we find that aiming at his vital organs. It bears repeating that the nature and number of
petitioner failed to impeach his credibility. No evidence was shown that wounds inflicted by the accused are constantly and unremittingly
Zaragoza was actuated by an improper motive. As such, there is no cogent considered as important indicia which disprove a plea for self-defense or
reason why the Court should deny Zaragoza’s testimony the full faith and defense of stranger because they demonstrate a determined effort to kill
credit it deserves. the victim and not just defend oneself.70 In the instant case, Paquito’s
wounds serve to tell us that petitioner was induced by revenge,
resentment or other evil motive and that he was set on killing the victim.

133
Petitioner’s avowal that his first shot was single but went automatic on the to such amount as indemnity for death without need of any evidence or
second shot is likewise unbelievable.71 Petitioner’s armalite has a selector proof of damages.75
that switches it from single shot to automatic. Since it was petitioner who
was in possession of the firearm and he admitted that he fired the shots, We also affirm the award of moral damages in view of the finding that
we reasonably conclude that it was he who switched the firearm to Generoso Umas-as lost consciousness and suffered anguish and sorrow
automatic firing. because of the incident.

All told, petitioner failed to satisfy the requirements of self-defense and WHEREFORE, the assailed Decision dated 25 June 1997 of the
defense of a stranger to justify the shooting of Paquito. Sandiganbayan in Criminal Case No. 19586 finding petitioner GUILTY of
homicide is partially AFFIRMED with the following MODIFICATIONS: (a) the
Next, petitioner contends that the killing of Paquito resulted from the award of Fifty Thousand Pesos (₱50,000.00) as actual damages is deleted;
lawful performance of his duty as police officer. However, such justifying and (b) petitioner is ordered to pay fifty thousand pesos (₱50,000.00) as
circumstance may be invoked only after the defense successfully proves indemnity ex delicto. No costs.
that the accused acted in the performance of a duty, and the injury or
offense committed is the necessary consequence of the due performance SO ORDERED.
or lawful exercise of such duty.72 These two requisites are wanting in this
case. The victim was not committing any offense at the time. Petitioner
has not sufficiently proven that the victim had indeed fired at Regencia. G.R. No. 124058 December 10, 2003
Killing the victim under the circumstances of this case cannot in any wise
be considered a valid performance of a lawful duty by a man who had PEOPLE OF THE PHILIPPINES, appellee,
sworn to maintain peace and order and to protect the lives of the people. vs.
As aptly held in People v. de la Cruz,73 "Performance of duties does not JESUS G. RETUBADO alias "JESSIE," appellant.
include murder…. Murder is never justified, regardless of the victim."
DECISION
A final word on the civil liability. An appeal in a criminal proceeding throws
the whole case open for review and it becomes the duty of the Court to CALLEJO, SR., J.:
correct any error in the appealed judgment, whether it is made the subject
of an assignment of error or not. Therefore, we delete the award of This is an appeal from the Decision1 of the Regional Trial Court, Toledo
₱50,000.00 as actual damages. To seek recovery of actual damages, it is City, Branch 29, in Criminal Case No. TCS-2153 convicting the appellant
necessary to prove the actual amount of loss with reasonable degree of Jesus G. Retubado of murder, sentencing him to reclusion perpetua, and
certainty premised upon competent proof and on the best evidence directing him to indemnify the heirs of the victim Emmanuel Cañon the
obtainable. Since the prosecution did not present receipts to prove the sum of P50,000.00.
actual losses suffered, such actual damages cannot be awarded.74
The appellant was indicted for murder in an Information, the accusatory
On the other hand, consistent with prevailing jurisprudence, we award portion of which reads:
₱50,000.00 by way of indemnity ex delicto to the heirs of Paquito. When
death occurs as a result of a crime, the heirs of the deceased are entitled That on the 5th day of November, 1993 at 9:30 o’clock in the evening,
more or less, at Barangay I Poblacion, Municipality of Tuburan, Province of

134
Cebu, Philippines, and within the jurisdiction of this Honorable Court, the just wanted to talk to Emmanuel, Jr., but Emmanuel told the appellant that
above-named accused, with deliberate intent to kill, by means of his son was already asleep. Norberta went down from the balcony and
treachery, evident premeditation and taking advantage of superior placed her hand on her husband’s shoulder to pacify him.
strength, did then and there willfully, unlawfully and feloniously attack,
assault and shoot Emmanuel Cañon with the use of unlicensed revolver of The appellant forthwith pulled out a handgun from under his T-shirt and
unknown caliber, thereby hitting the latter on his forehead, resulting to shot Emmanuel on the forehead. The latter fell to the floor as the
the instantaneous death of the said victim. appellant walked away from the scene. Norberta shouted for help. The
neighbors, her daughter, and her son-in-law arrived. They brought
CONTRARY TO LAW.2 Emmanuel to the Tuburan District Hospital, but the victim died shortly
thereafter. Dr. Ivar G. Arellano, the Municipal Health Officer, performed an
Shortly before November 5, 1993, someone played a joke on Edwin autopsy on the cadaver of Emmanuel and prepared a report thereon with
Retubado, the appellant’s younger brother who was mentally ill. Someone the following findings:
inserted a lighted firecracker in a cigarette pack and gave it to Edwin. He
brought the cigarette home and placed it on the dining table as he was Examination in Detail:
having dinner with his father. Momentarily, the firecracker exploded. The
suspect was Emmanuel Cañon, Jr., The Cañons and the appellant were On detailed examination, a gunshot wound was found at the left side of
neighbors. The matter was brought to the attention of the barangay the forehead, measuring 1 cm. in diameter. At the skin surrounding this
captain who conducted an investigation. It turned out that Emmanuel wound was found powder burns which measured 3 cms. in diameter as the
Cañon, Jr. was not the culprit. The barangay captain considered the matter skin had been blackened and burned by powder of the bullet. The
closed. The appellant, however, was bent on confronting Emmanuel underlying frontal bone was fractured and depressed. The underlying
Cañon, Jr. meninges of the brain as well as the frontal area of the brain was
traumatized and injured. Blood and cerebrospinal fluid were leaking from
On November 5, 1993, at about 9:00 p.m., 50-year-old Emmanuel Cañon, this wound. The edges of this bullet wound was inverted thus this was the
Sr., a pedicab driver called it a day and decided to go home after a day’s gunshot entry wound. The wound was found to be circular in shape. The
work. He drove his pedicab and stopped at the junction of Rizal and exit wound was found at the left parietal bone measuring 1.2 cm. in size or
Gallardo Streets, at the poblacion of Tuburan. The appellant, who was diameter for this wound communicated with the entry wound of the left
conversing with Marcial Luciño saw him. "Noy, why is [it] your son did side of the forehead. The connection from the wound of entry to the exit
something to my brother?" Emmanuel ignored the appellant. The wound measured 8 cms. The parietal bone was fractured and was
appellant was incensed and ran after Emmanuel. He overtook Emmanuel, depressed and the parietal part of the brain and meninges was
grabbed and pushed the pedicab which nearly fell into a canal. Emmanuel traumatized. Blood and cerebrospinal fluid as well as brain tissues leaked
again ignored the appellant and pedaled on until he reached his house. His out from this wound.
wife, Norberta Cañon was in the balcony of their house, above the porch
waiting for him to arrive. Emmanuel, Jr., meanwhile, was already asleep. Possible cause of death:
Undeterred, the appellant continued following Emmanuel.
1. Gunshot wound at the head (left side) with injury to brain and meninges
Shortly after Emmanuel had entered his house, the appellant arrived and
tarried at the porch. Emmanuel suddenly opened the door and demanded 2. Hypovolemic shock secondary to loss of blood (Severe loss of blood)
to know why he was being followed. The appellant told Emmanuel that he

135
(Sgd.) Ivar G. Arellano Emmanuel’s forehead. Norberta fled from the house. For his part, the
MUN. Health Officer3 appellant rushed to his house to change clothes. He placed the gun on the
dining table before entering his bedroom. When he went back to the
Dr. Charity Patalinghug and the victim’s daughter Loreta C. Claro signed dining room to get the gun, his younger sister, Enrica told him that their
Emmanuel’s Certificate of Death.4 The appellant surrendered to the police brother Edwin had taken the gun. He found Edwin outside their house near
authorities but failed to surrender the firearm he used to kill the victim. the church, and the latter told the appellant that he threw the gun into the
Forensic Officer Myrna P. Areola of the PNP Regional Office subjected the sea. When the appellant asked his brother to show him where he threw
appellant to paraffin tests. The Chemical Analysis of the paraffin casts gave the gun, Edwin refused to do so.
the following results:
Marcial Luciño corroborated the appellant’s testimony. He testified that he
FINDINGS: was talking with the appellant at around 9:00 p.m. at the junction of Rizal
and Gallardo streets when the victim Emmanuel passed by in his pedicab.
... When the appellant called the victim, the latter ignored the call, prompting
the appellant to chase the victim, and eventually push the pedicab into a
1. POSITIVE for the presence of gunpowder residue on his left hand cast. canal.

2. NEGATIVE for the presence of gunpowder residue on his right hand The appellant’s father, Iñigo Retubado, testified that on the evening of
cast.5 November 5, 1993, he was in their house with Edwin, his son who was
mentally-ill. It was already late when the appellant arrived. The appellant
Norberta also testified on the expenses incurred by her family due to her was disheveled, and laid down the gun he was carrying on the table. The
husband’s death. No documentary evidence was, however, offered to appellant told his father that he would surrender to the police because he
support the same. She declared that she felt sad and lonely as a result of had shot somebody.6 The appellant thereafter went to his room to change
her husband's death. clothes while Iñigo went to the comfort room to answer the call of nature.
When he was done, he saw the appellant frantically looking for the gun. As
The Case for the Appellant Edwin was also nowhere to be found, Iñigo concluded that Edwin might
have taken the gun with him. He also testified on Edwin’s mental
The appellant admitted shooting the victim but claimed that he was merely imbalance and on the latter’s confinement at the Psychiatric Department
performing a lawful act with due care; hence, cannot be held criminally of the Don Vicente Sotto Memorial Medical Center in Cebu City sometime
liable for the victim’s death. He testified that when he insisted that in 1991.7
Emmanuel wake up his son, Emmanuel went to his room and emerged
therefrom holding a handgun with his right hand. Emmanuel’s trigger On November 6, 1993, the appellant surrendered to the police authorities.
finger was outside the trigger guard, and he held the firearm with the Although he was required by the municipal trial court to file his counter-
muzzle facing downward. Fearing that he would be shot, the appellant affidavit, the appellant refused to do so.
took hold of Emmanuel’s right hand with his left, and pulled the gun
towards Emmanuel’s stomach. The appellant grabbed Emmanuel’s free After due proceedings, the trial court rendered judgment in Criminal Case
hand with his right hand, and the old man almost fell on his knees to the No. TCS-2153, convicting the appellant of murder, and sentencing him to
ground. Emmanuel still resisted. The appellant pulled the gun to the level reclusion perpetua. The decretal portion of the decision reads:
of Emmanuel’s forehead, and the gun suddenly went off. The bullet hit

136
WHEREFORE, in view of the foregoing, this Court finds accused GUILTY IV
beyond reasonable doubt of the crime of Murder under Art. 248 R.P.C. and
sentences the accused to the penalty of Reclusion Perpetua and to Fourth Assignment of Error
indemnify the heirs of the deceased the sum of P50,000.00.
THE LOWER COURT ERRED IN FAILING TO CONSIDER THAT THE ACCUSED
However, accused is given full credit of his preventive imprisonment. HAS EXPLAINED WHY HE FAILED TO SURRENDER THE GUN WHICH HE GOT
FROM THE DECEASED.9
SO ORDERED.8
The appellant asserts that he was merely performing a lawful act of
On appeal, the appellant assails the decision of the trial court contending defending himself when he grabbed the victim’s hand which held the gun.
that: The gun accidentally fired and the bullet hit the victim’s forehead. The
accident was not the appellant’s fault. The appellant asserts that when he
I wrestled with the victim for the possession of the gun, he was merely
defending himself. He contends that he had no intention of killing the
First Assignment of Error victim, as he merely wanted to talk to his son. If he had wanted to kill the
victim, he could have easily done so when he met the latter for the first
THE LOWER COURT ERRED IN NOT FINDING THE DEATH OF THE DECEASED time that fateful night of November 5, 1993. Moreover, the appellant
AS CAUSED BY MERE ACCIDENT WITHOUT FAULT OR INTENTION OF submits, he did not commit any felony; hence, under paragraph 4 of Article
CAUSING IT WHILE THE ACCUSED WAS PERFORMING A LAWFUL ACT WITH 12 of the Revised Penal Code, he is not criminally liable for the death of the
DUE CARE OR, IN THE ALTERNATIVE, IT ERRED IN NOT CONVICTING HIM victim.10 In the alternative, the appellant asserts that he should be
JUST MERELY OF HOMICIDE INSTEAD OF MURDER. convicted only of the crime of homicide under Article 249 of the Revised
Penal Code, since the qualifying circumstance of treachery is wanting. He
II and the victim had a heated exchange of words before they grappled for
the possession of the gun. Such heated discussion had already forewarned
Second Assignment of Error the victim and placed him on guard; thus, treachery cannot be legally
considered.
THE LOWER COURT ERRED IN DISREGARDING THE VERY RELEVANT AND
MATERIAL CONTENTS OF EXHIBIT "B" OF THE PROSECUTION --- CHEMISTRY The contention of the appellant has no merit. Article 11, paragraph 4 of
REPORT, PARAFFIN TEST -- WHICH ARE FAVORABLE TO THE ACCUSED. the Revised Penal Code reads:

III ART. 11. Justifying circumstances. –

Third Assignment of Error ...

THE LOWER COURT ERRED IN CONCLUDING THAT THE TESTIMONY OF THE 4) Any person who, in order to avoid an evil or injury, does an act which
SOLE WITNESS OF THE PROSECUTION IS SATISFACTORY AND SUFFICIENT causes damage to another provided that the following requisites are
TO CONVICT THE ACCUSED OF MURDER. present:

137
First. That the evil sought to be avoided actually exists; or imminent (actual o imminente). The word propiedad covers diverse
juridical rights (bienes juridicos) such as right to life, honor, the integrity of
Second. That the injury feared be greater than that done to avoid it; one’s body, and property (la vida, la integridad corporal, el pudor, el
honor, bienes patrimoniales) belonging to another.12
Third. That there be no other practical and less harmful means of
preventing it. It is indispensable that the state of necessity must not be brought about by
the intentional provocation of the party invoking the same.13
The provision was taken from Article 8, paragraph 7 of the Spanish Penal
Code, which reads: A number of legal scholars in Europe are of the view that the act of the
accused in a state of necessity is justifying circumstance; hence, lawful.
ARTICULO 8. Under Article 12, paragraph 4 of the Revised Penal Code, a "state of
necessity" is a justifying circumstance. The accused does not commit a
7. El que para evitar un mal ejecuta un hecho que produzca dañ en la crime in legal contemplation; hence, is not criminally and civilly liable. Civil
propiedad ajena, siempre que concurran las circumstancias siguientes: liability is borne by the person/persons benefited by the act of the
accused. Crimes cannot exist unless the will concurs with the act, and
Primera. Realidad del mal que se trata de evitar. when, says Blackstone, "a man intending to do a lawful act, does that
which is unlawful, the deed and the will act separately" and there is no
Segunda. Quesea mayor que el causado para evitarlo. conjunction between them which is necessary to constitute a crime.14
Others are of the view that such act is a cause for exclusion from being
Tercera. Que no haya otro medio practicable y menos meted a penalty; still others view such act as a case of excluding the
perjudicial para impedirlo. accused from culpability.

Article 11, paragraph 4 of the Revised Penal Code is not an accurate According to Groizard, rights may be prejudiced by three general classes of
translation of the Spanish Penal Code. The phrase "an injury" does not acts, namely, (a) malicious and intentional acts; (b) negligent or reckless
appear in the first paragraph in the Spanish Penal Code. Neither does the acts; (c) acts which are neither malicious, imprudent nor negligent but
word "injury" appear in the second subparagraph of the Spanish Penal nevertheless cause damages.
Code.
Nuestra propiedad puede ser perjudicada, puede sufrir detrimentos por
The justification is what is referred to in the Spanish Penal Code as el tres clases de hechos.1âwphi1 Por actos maliciosos, intencionales,
estado de necessidad: encaminados directamente a causarnos daño; por actos que, sin llevar ese
malicioso fin y por falta de prudencia, por culpa o temeridad del que los
Es una situacion de peligro, actual o immediato para bienes, juridicamente ejecuta, den ese mismo resultado, y por actos que, sin concurrir en su
protegides que solo puede ser evitada mediante, la lesion de bienes, ejecucion un proposito doloso, ni culpa, ni negligencia sin embargo
tambien juridicamento protegidos, pertenecientes a otra personas.11 produzcan menocabo en nuestros bienes.15

The phrase "state of necessity" is of German origin. Countries which have The defense of a state of necessity is a justifying circumstance under
embraced the classical theory of criminal law, like Italy, do not use the Article 12, paragraph 4 of the Revised Penal Code. It is an affirmative
phrase. The justification refers to a situation of grave peril (un mal), actual defense that must be proved by the accused with clear and convincing

138
evidence. By admitting causing the injuries and killing the victim, the
accused must rely on the strength of his own evidence and not on the A About an armslength.
weakness of the evidence of the prosecution because if such evidence is
weak but the accused fails to prove his defense, the evidence of the Q When your husband asked Jesus Retubado why the latter chased him
prosecution can no longer be disbelieved. Whether the accused acted while your husband was driving his trisicad what was the answer of Jesus
under a state of necessity is a question of fact, which is addressed to the Retubado, if any?
sound discretion of the trial court. The legal aphorism is that the findings
of facts by the trial court, its calibration of the testimony of the witnesses A My husband asked the accused Jesus Retubado what is his grudge to him
of the parties and of the probative weight thereof as well as its conclusions and Jesus Retubado answered that it is not you who has a grudge to me
based on its own findings are accorded by the appellate court high respect, but it is your son.
if not conclusive effect, unless the trial court ignored, misconstrued or
misapplied cogent facts and circumstances of substance which, if Q When Jesus Retubado uttered that statement what transpired after
considered, will change the outcome of the case. We have meticulously that?
reviewed the records and find no basis to deviate from the findings of the
trial court that the appellant was the provocateur, the unlawful aggressor A He immediately pointed his firearm that he was bringing (sic) to my
and the author of a deliberate and malicious act of shooting the victim at husband Emmanuel Cañon.
close range on the forehead.
Q By the way considering that you were just near to both your husband
First: When Norberta heard her husband and the appellant arguing with and the accused where did that firearm that you said was pointed by the
each other in the porch of their house, she went down from the balcony accused to your husband come (sic) from?
towards her husband and placed her hand on the latter’s shoulders. She
was shocked when the appellant pulled out his handgun and deliberately A While the accused was standing in front of our door his hands were
shot the victim on the forehead, thus: placed inside his T-shirt covered by his T-shirt.

Q Now, you said that when your husband was about to go out again in Atty. Pepito:
order to see his trisicad and as he opened the door he saw Jesus Retubado
near the door. What happened after that? We move to strike out the answer. It is not responsive, Your Honor. The
question was, where did it come from?
A He asked Jesus Retubado why Jesus Retubado chased him when he was
driving his trisicad. COURT:

Q Now, as your husband was asking this question to the accused Jesus Let the answer stay in the record but let the witness answer again.
Retubado what was the distance to your husband at the time?
A From the hands of accused Jessie.
A Just very near to him.
Fiscal Pansoy:
Q And you to the accused at that very moment what was more or less your
distance?

139
Q Now, just a while ago you were making a motion using your hand placed
inside your T-shirt. Now, when you saw the firearm for the first time where A It was just very near because his hand did not bend. (Witness
did you saw (sic) the firearm for the first time where did the firearm come demonstrating by pointing to her forehead).
from as you saw it from the hands of the accused?
Q Now, more or less, describe to the Court the approximate distance
Atty. Pepito: between the firearm that was pointed to your husband and the forehead
of your husband at the time when the firing was done?
Already answered. It came from the hands of the accused.
A It touched the forehead of my husband.
Fiscal Pansoy:
Q That was the very time that you heard the gunburst?
I will reform.
A Yes.
Q Before you saw the firearm in the hands of the accused where did the
firearm come from? Q When the accused fired the firearm that was carried by him, what
happened to your husband?
Atty. Pepito:
A My husband fell down backward to the ground inside the house.
She is incompetent. We object.
Q By the way, what was the flooring of your house where your husband fell
COURT: backward to the ground?

Reform the question. A Cemented.

Fiscal Pansoy: Q By the way considering that you were just very near to where the
incident occurred can you describe the length of the firearm that was used
Q Now, Mrs. Witness, before this question was asked to you as to where by the accused in firing your husband?
the firearm came from you were making a motion by placing your hands
inside your shirt when you were only asked as to where the firearm came A It was a short firearm about 6 inches.
from?
Q Now, as your husband fell down to the floor where did the accused
A That was what the position of the accused when he was standing in front proceed and what did the accused do?
of our door and I do not know what was inside his T-shirt. I only know that
he was carrying a firearm when it fired. A He was just casually walking away as if nothing had happened.

Q Now, when the accused pointed the firearm to your husband and fired Q Now, what did you do to your husband, if any, after he fell down to the
the same more or less what was the distance between the accused and floor?
your husband at the very precise time when the firing was made?

140
A I have done nothing because I was somewhat shocked. I could not move unlicensed firearm to commit homicide should not be appreciated against
because I was shocked.16 the appellant.

Second: After shooting the victim, the appellant fled from the situs The appellant is entitled to the mitigating circumstance of voluntary
criminis. He surrendered to the police authorities only on November 6, surrender. He turned himself in to the police authorities prior to the
1993, but failed to surrender the gun he used to kill the victim. The issuance of any warrant for his arrest.
appellant’s claim that he placed the gun on the dining table before
entering his bedroom to change his clothes is incredible. There is no The trial court awarded ₱50,000.00 as civil indemnity18 to the heirs of the
evidence that the appellant informed the police authorities that he killed deceased. In addition, the heirs are entitled to moral damages in the
the victim in a state of necessity and that his brother, Edwin, threw the gun amount of ₱50,000.0019 and the temperate damages in the amount of
into the sea. The appellant never presented the police officer to whom he ₱25,000.00 since no sufficient proof of actual damages was offered.20
confessed that he killed the victim in a state of necessity.
WHEREFORE, the appealed judgment is AFFIRMED with MODIFICATION.
Third: The appellant had the motive to shoot and kill the victim.1avvphi1 The appellant Jesus G. Retubado alias "Jessie" is found GUILTY beyond
The victim ignored the appellant as the latter talked to him at the junction reasonable doubt of homicide defined in and penalized by Article 249 of
of Rizal and Gallardo streets, in the poblacion of Tuburan. The appellant the Revised Penal Code and is hereby sentenced to suffer an indeterminate
was incensed at the effrontery of the victim, a mere pedicab driver. The sentence of ten (10) years of prision mayor, in its medium period, as
appellant followed the victim to his house where the appellant again minimum, to fifteen (15) years of reclusion temporal, in its medium period,
confronted him. The appellant insisted on talking with the victim’s son but as maximum, and to pay the heirs of the victim, Emmanuel Cañon,
the victim refused to wake up the latter. The appellant, exasperated at the ₱50,000.00 as civil indemnity; ₱50,000.00 as moral damages; and
victim’s intransigence, pulled out a gun from under his shirt and shot the P25,000.00 as temperate damages.
victim on the forehead. It was impossible for the victim to survive. With
the appellant’s admission that he shot the victim, the matter on whether SO ORDERED.
he used his right or left hand to shoot the latter is inconsequential.

We agree with the contention of the Solicitor General that there is no G.R. No. 153875 August 16, 2006
treachery in the present case to qualify the crime to murder. To appreciate
treachery, two (2) conditions must be present, namely, (a) the PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
employment of the means of execution that give the person attacked no vs.
opportunity to defend himself or to retaliate, and (b) the means of ROLANDO DAGANI y REYES and OTELLO SANTIANO Y LEONIDA, Accused-
execution were deliberately or consciously adopted.17 The prosecution Appellants.
failed to adduce an iota of evidence to support the confluence of the
abovementioned conditions. Thus, the appellant is guilty only of homicide DECISION
under Article 249 of the Revised Penal Code. Although the Information
alleges that the appellant used an unlicensed firearm to shoot the victim, AUSTRIA-MARTINEZ, J.:
the prosecution failed to prove that the appellant had no license to
possess the same. Hence, the aggravating circumstance of the use of an For review before the Court is the Decision dated June 20, 20021 of the
Court of Appeals (CA) which affirmed the Decision of the Regional Trial

141
Court of the City of Manila, Branch 12 (RTC), dated February 18, 1993, in Dagani approached Javier who had been striking a bottle of beer on the
Criminal Case No. 89-77467, finding the accused-appellants Otello table. Javier then pulled out a .22 caliber revolver and attempted to fire at
Santiano y Leonida (Santiano) and Rolando Dagani y Reyes (Dagani) guilty Dagani, but the gun failed to go off. Then suddenly, while outside the
of the crime of Murder. canteen, Santiano heard gunfire and, from his vantage point, he saw Javier
and Dagani grappling for a .22 caliber gun which belonged to Javier. During
The accusatory portion of the Information reads: the course of the struggle, the gun went off, forcing Santiano to fire a
warning shot. He heard Javier’s gun fire again, so he decided to rush into
That on or about September 11, 1989, in the City of Manila, Philippines, the canteen. Santiano then shot Javier from a distance of less than four
the said accused conspiring and confederating together and mutually meters.
helping each other did then and there, willfully, unlawfully and feloniously,
with intent to kill, evident premeditation and treachery, attack, assault and Appellants invoked the justifying circumstances of self-defense and lawful
use of personal violence upon one ERNESTO JAVIER Y FELIX by then and performance of official duty as PNR security officers. They also argued that
there shooting him with a .38 caliber revolver, thereby inflicting upon the the prosecution failed to establish treachery and conspiracy.
said ERNESTO JAVIER Y FELIX mortal gunshot wounds which were the
direct and immediate cause of his death thereafter. The RTC rendered its Decision, the dispositive portion of which reads:

CONTRARY TO LAW.2 WHEREFORE, finding both accused Otello Santiano y Leonida and Rolando
Dagani y Reyes guilty beyond reasonable doubt of the crime of Murder
Upon arraignment, the appellants pleaded not guilty. Trial ensued where defined and punished under Art. 248, RPC, with the presence of the
the prosecution adduced evidence to establish the following: mitigating circumstance of voluntary surrender and granting them the
benefit of [the] Indeterminate Sentence Law, both accused are hereby
At about 4:45 in the afternoon of September 11, 1989, a group composed sentenced to each suffer an Indeterminate prison term of TEN (10) YEARS
of Ernesto Javier (Javier), Lincoln Miran (Miran), and two other individuals and ONE (1) DAY of prision mayor as minimum, to EIGHTEEN (18) YEARS
had been drinking at the canteen located inside the compound of the and ONE (1) DAY of reclusion temporal x x x.
Philippine National Railways (PNR) along C.M. Recto Avenue, Tondo,
Manila. All of a sudden, appellants, who were security officers of the PNR Both accused are hereby ordered to indemnify the heirs of the victim the
and covered by the Civil Service Rules and Regulations, entered the sum of P50,000.00 as death indemnity, the sum of P31,845.00 as funeral
canteen and approached the group. Appellant Dagani shoved Miran, and burial expenses, the sum of
causing the latter to fall from his chair. Dagani then held Javier while
Santiano shot Javier twice at his left side, killing the latter. P30,000.00 as and for [sic] attorney’s fees and the further sum of
P1,000.00 per appearance of counsel.
The defense proceeded to prove their version of the facts:
Both accused shall be credited with the full extent of their preventive
Appellants testified that they were ordered by their desk officer to imprisonment. Both accused are hereby committed to the Director,
investigate a commotion at the canteen. Upon reaching the place, National Penitentiary, Muntinlupa, Metro Manila for service of Sentence.
Santiano ordered his co-accused, Dagani, to enter, while the former waited
outside. SO ORDERED.3

142
In brief, the RTC held that appellants failed to prove that Javier attempted IV
to squeeze the trigger of the .22 caliber gun when he pointed it at Dagani;
that during the course of the struggle for the possession of the .22 caliber THE LOWER COURT GRAVELY ERRED IN FINDING THAT THE PROSECUTION
gun, the danger to the life of the accused ceased to be imminent; that in WAS ABLE TO ESTABLISH BEYOND REASONABLE DOUBT THAT THE
grappling for the weapon, Dagani "controlled" the hands of Javier and ACCUSED ARE GUILTY OF MURDER.4
pushed them away from his body; that the appellants failed to produce the
two empty shells as physical evidence of the gunfire allegedly caused by The CA rendered its Decision, the dispositive portion of which states:
Javier; that no points of entry or bullet markings on the walls of the
canteen were shown; that, in light of these findings, no unlawful WHEREFORE, the appealed judgment of conviction is MODIFIED.
aggression was present on the part of the victim; that the appellants failed Appellants are hereby sentenced to reclusion perpetua. The award for
to prove that they were on official duty at the time of the incidence; that, attorney’s fees and appearance fees for counsel are hereby deleted. In all
since it was not established that Javier actually fired his gun, the injury the other aspects, the appealed decision is maintained.
inflicted upon him cannot be regarded as a necessary consequence of the
due performance of an official duty; that the appellants were acting in Let the entire records of the case be elevated to the Supreme Court for the
conspiracy; that the qualifying circumstance of treachery attended the mandated review.
killing, considering that Javier had been shot while his hands were being
held by Dagani and as his body was out of balance and about to fall; and SO ORDERED.5
that the mitigating circumstance of voluntary surrender should be
appreciated in favor of the appellants. The CA affirmed the findings of fact as well as the salient portions of the
RTC Decision, but deleted the award of attorney’s fees and the per
The appellants appealed to the CA and assigned the following errors: appearance fees of counsel since, the

I CA reasoned, the instant case is criminal in nature which is under the


control of the public prosecutor, and, additionally, the RTC failed to justify
THE LOWER COURT GRAVELY ERRED IN NOT APPRECIATING SELF DEFENSE this award in the body of its Decision. And last, the CA found that the RTC
ON THE PART OF THE ACCUSED. erroneously applied the Indeterminate Sentence Law since the penalty for
Murder, at the time of the incident, was reclusion perpetua which is an
II indivisible penalty to be imposed in its entirety, regardless of the attending
mitigating circumstance of voluntary surrender.
THE LOWER COURT ERRED WHEN IT FAILED TO CONSIDER THE FACT THAT
THE ACCUSED-APPELLANTS WERE IN LAWFUL PERFORMANCE OF AN Appellants are now before this Court submitting for resolution the same
OFFICIAL DUTY. matters argued before the CA. Through their Manifestation dated February
11, 2003,6 appellants prayed to dispense with the filing of additional
III briefs.

THE LOWER COURT GRAVELY AND SERIOUSLY ERRED IN RULING THAT As of date, the records show that despite the efforts exerted by the surety
THERE WAS CONSPIRACY. and the responsible law officers to locate the appellants, the latter could
not be found and have jumped bail.7

143
The appeal is partly meritorious. In the instant case, the assertions that it was "quite probable" that Javier,
during the course of the struggle for the firearm, "could have easily killed"
Appellants argue that the courts a quo misappreciated the facts and erred the appellants are uncertain and speculative. There is aggression in
in finding that there was no unlawful aggression on the part of the victim. contemplation of the law only when the one attacked faces real and
They insist that the victim, Javier, had been armed with a revolver at the immediate threat to one’s life. The peril sought to be avoided must be
time he was struggling with appellant Dagani; that the former "could have imminent and actual, not just speculative.14
easily killed the latter;" that, given the fact that Javier had been drinking,
"it is quite probable for Javier to act harshly and aggressively towards To sum up the matter, we quote the findings of the CA:

peace officers such as the accused;"8 and that Javier actually fired three The defense was unable to prove that there was unlawful aggression on
shots from his .22 caliber gun.9 the part of Javier. They were unable to present evidence that the victim
actually fired his gun. No spent shells from the .22 caliber pistol were
We are not convinced. found and no bullets were recovered from the scene of the incident. Javier
also tested negative for gunpowder residue. Moreover, the trial court
When self-defense is invoked, the burden of evidence shifts to the accused found appellant Dagani’s account of the incident to be incredible and self-
to show that the killing was legally justified. Having owned the killing of the serving. In sum, the defense presented a bare claim of self-defense
victim, the accused should be able to prove to the satisfaction of the Court without any proof of the existence of its requisites.15
the elements of self-defense in order to avail of this extenuating
circumstance. He must discharge this burden by clear and convincing Even if it were established that Javier fired his gun as the appellants so
evidence. When successful, an otherwise felonious deed would be insist, the imminence of the danger to their lives had already ceased the
excused, mainly predicated on the lack of criminal intent of the accused. moment Dagani held down the victim and grappled for the gun with the
Self-defense requires that there be (1) an unlawful aggression by the latter. After the victim had been thrown off-balance, there was no longer
person injured or killed by the offender, (2) reasonable necessity of the any unlawful aggression
means employed to prevent or repel that unlawful aggression, and (3) lack
of sufficient provocation on the part of the person defending himself. All that would have necessitated the act of killing.16 When an unlawful
these conditions must concur.10 aggression that has begun no longer exists, the one who resorts to self-
defense has no right to kill or even to wound the former aggressor.17
Unlawful aggression, a primordial element of self-defense, would When Javier had been caught in the struggle for the possession of the gun
presuppose an actual, sudden and unexpected attack or imminent danger with appellant Dagani, the grave peril envisaged by appellant Santiano,
on the life and limb of a person – not a mere threatening or intimidating which impelled him to fire at the victim, had then ceased to a reasonable
attitude11 – but most importantly, at the time the defensive action was extent,18 and undoubtedly, Santiano went beyond the call of self-
taken against the aggressor.12 To invoke self-defense successfully, there preservation when he proceeded to inflict the excessive and fatal injuries
must have been an on Javier, even when the alleged unlawful aggression had already
ceased.19
unlawful and unprovoked attack that endangered the life of the accused,
who was then forced to inflict severe wounds upon the assailant by The second element of self-defense demands that the means employed to
employing reasonable means to resist the attack.13 neutralize the unlawful aggression are reasonable and necessary. It is

144
settled that reasonable necessity of the means employed does not imply Article 11 of the Revised Penal Code provides that a person who acts in the
material commensurability between the means of attack and defense. fulfillment of a duty or in the lawful exercise of a right or office does not
What the law requires is rational equivalence.20 The circumstances in their incur any criminal liability. Two requisites must concur before this defense
entirety which surround the grappling of the firearm by Dagani and Javier, can prosper: 1) the accused must have acted in the performance of a duty
such as the nature and number of gunshot wounds sustained by the or in the lawful exercise of a right or office; and 2) the injury caused or the
victim21 which amounted to two fatal wounds,22 that Dagani was able to offense committed should have been the necessary consequence of such
restrain the hands of Javier and push lawful exercise.31 These requisites are absent in the instant case.

them away from his body,23 that Dagani was larger than Javier and had As found by the CA:
finished Special Weapons and Tactics (SWAT) hand-to-
The defense failed to prove that the security officers were in fact on duty
hand combat training,24 and Javier, as admitted by the appellants, was at the time they were at the canteen. The trial court gave weight to the
inebriated at the time of the incident,25 do not justify appellant Santiano’s fact that the appellants were unable to submit their daily time records to
act of fatally shooting the victim twice.26 show that they were on duty at the time. Appellants’ assertion that they
were ordered to go on 24-hour duty was belied by PNR Security
All things considered, the appellants’ plea of self-defense is not Investigator Rolando Marinay’s testimony that PNR security officers work
corroborated by competent evidence. The plea of self-defense cannot be in two 12-hour shifts, from 7:00 a.m. to 7:00 p.m. and from 7:00 p.m. to
justifiably entertained where it is not only uncorroborated by any separate 7:00 a.m.
competent evidence but is in itself extremely doubtful.27 Whether the
accused acted in self-defense is a question of fact. Like alibi, the Moreover, since it was not established that Javier fired his gun, the injury
affirmative defense of self-defense is inherently weak because, as inflicted upon him cannot be regarded as a necessary consequence of
experience has demonstrated, it is easy to fabricate and difficult to appellants’ due performance of an official duty.32
disprove.28 This Court, therefore, finds no reversible error on the part of
the courts a quo in rejecting the claim of self-defense. As stated, considering that the imminent or actual danger to the life of the
appellants had been neutralized when Dagani grappled with Javier and
Appellants set up the defense that they were in the lawful performance of restrained his hands; that Javier had been thrown off-balance; that Dagani
their official duties. They specifically aver that they had been ordered by had been specially trained for these purposes; and that Javier had been
their desk officer to proceed to the canteen in response to a telephone call drinking immediately prior to the scuffle, this Court holds that the fatal
stating that there was a group "creating trouble;" that they were in the call injuries that appellant Santiano inflicted on the victim cannot be deemed
of duty and exercising their functions and responsibilities as members of to be necessary consequences of the performance of his duty as a PNR
the PNR Civil Security Office to preserve peace and order and security officer.33 While it is recognized that police officers – if indeed the
appellants can be likened to them – must stand their ground and
protect the lives and property in the PNR Compound;29 and that, invoking overwhelm their opponents, in People v. Ulep,34 this Court counseled:
jurisprudence, as security officers in the performance of duty, like the
police, they must stand their ground and overcome the opponent, and the The right to kill an offender is not absolute, and may be used only as a last
force that may be exerted must differ from that which ordinarily may be resort, and under circumstances indicating that the offender cannot
offered in self-defense.30 otherwise be taken without bloodshed. The law does not clothe police
officers with authority to arbitrarily judge the necessity to kill. It may be

145
true that police officers sometimes find themselves in a dilemma when conspiracy because conspiracy may be inferred from the circumstances
pressured by a situation where an immediate and decisive, but legal, attending the commission of the crime, yet, conspiracy must be
action is needed. However, it must be stressed that the judgment and established by clear and convincing evidence.39
discretion of police officers in the performance of their duties must be
exercised neither capriciously nor oppressively, but within reasonable This Court has held that even if all the malefactors joined in the killing,
limits. In the absence of a clear and legal provision to the contrary, they such circumstance alone does not satisfy the requirement of conspiracy
must act in conformity with the dictates of a sound discretion, and within because the rule is that
the spirit and purpose of the law. We cannot countenance trigger-happy
law enforcement officers who indiscriminately employ force and violence neither joint nor simultaneous action is per se sufficient proof of
upon the persons they are apprehending. They must always bear in mind conspiracy. Conspiracy must be shown to exist
that although they are dealing with criminal elements against whom
society must be protected, these criminals are also human beings with as clearly and convincingly as the commission of the offense itself.40 Thus,
human rights.35 even assuming that Javier was simultaneously attacked, this does not
prove conspiracy. No evidence was presented to show that the appellants
But this Court cannot agree with the findings of the courts a quo that the planned to kill Javier or that Dagani’s overt acts facilitated that alleged
appellants were in conspiracy. plan. The prosecution did not establish that the act of Dagani in trying to
wrestle the gun from Javier and in the process, held the latter’s hands, was
The RTC simply held: for the purpose of enabling Santiano to shoot at Javier. The prosecution
had the burden to show Dagani’s intentional participation to the
The Information cited conspiracy of the accused. Since it can also be furtherance of a common design and purpose41 or that his action was all
committed thru simultaneous/concerted action and considering that Javier part of a scheme to kill Javier. That Dagani did not expect Santiano to
was shot by Santiano while being held by Dagani, under jurisprudence, shoot the victim is established when Santiano testified that Dagani
conspiracy is present.36 "seem[ed] to be shocked, he was standing and looking at the victim" as
Javier gradually fell to the ground.42 And since Dagani’s conviction can
The tenor of the factual findings of the CA is equally unsatisfactory: only be sustained if the crime had been carried out through a conspiracy
duly proven, in view of the failure of the prosecution to discharge that
Moreover, the facts show that Javier was shot by appellant Santiano as he burden, this Court is constrained to acquit him.
was being subdued by appellant Dagani. The trial court held that the
manner of the attack was indicative of a joint purpose and design by the And this Court cannot say that treachery attended the attack. The RTC
appellants.37 declared:

Courts must judge the guilt or innocence of the accused based on facts and [T]he Court believes that Javier was shot while his body was out-balanced
not on mere conjectures, presumptions, or suspicions.38 Other than the and about to fall to the right side and while his hands were being held by
plain fact that the victim had been shot by one of the accused while being Dagani. Javier, therefore, was shot at when he has no means to defend
held by a co-accused, there is no other evidence that the appellants were himself, hence, the killing was attended by the qualifying circumstance of
animated by the same purpose or were moved by a previous common treachery.43
accord. It follows that the liability of the accused must be determined on
an individual basis. While no formal agreement is necessary to establish which the CA affirmed as follows:

146
victim, and without provocation on the part of the latter.49 Treachery is
The findings of the court a quo clearly showed that Javier was being held never presumed. Like the rules on conspiracy, it is required that the
down and could not effectively use his weapon. As such, the trial court manner of attack must be shown to have been attended by treachery as
held that Javier could not be considered to be an armed man as he was conclusively as the crime itself.50
being held down and was virtually helpless.
The prosecution failed to convincingly prove that the assault by the
It has been held that when an assault is made with a deadly weapon upon appellants had been deliberately adopted as a mode of attack intended to
an unarmed and unsuspecting victim who [was] given no immediate insure the killing of Javier and without the latter having the opportunity to
provocation for the attack and under conditions which made it impossible defend himself. Other than the bare fact that Santiano shot Javier while
for him to evade the attack, flee or make [a] defense, the act is properly the latter had been struggling with Dagani over the possession of the .22
qualified as treachery, and the homicide resulting therefrom is classified as caliber gun, no other fact had been adduced to show that the appellants
murder.44 x x x consciously planned or predetermined the methods to insure the
commission of the crime, nor had the risk of the victim to
Treachery under par.16 of Article 14 of the Revised Penal Code is defined
as the deliberate employment of means, methods or forms in the retaliate been eliminated during the course of the struggle over the
execution of a crime against persons which tend directly and specially to weapon, as the latter, though struggling, had not been
insure its execution, without risk to the offender arising from the defense
which the intended victim might raise. Treachery is present when two completely subdued. As already stated, this Court must emphasize that the
conditions concur, namely: (1) that the means, methods and forms of mere suddenness of the attack, or the vulnerable position of the victim at
execution employed gave the person attacked no opportunity to defend the time of the attack, or yet even the fact that the victim was unarmed,
himself or to retaliate; and (2) that such means, methods and forms of do not by themselves make the attack treacherous.51 It must be shown
execution were deliberately and consciously adopted by the accused beyond reasonable doubt that the means employed gave the victim no
without danger to his person.45 opportunity to defend himself or retaliate, and that such means had been
deliberately or consciously adopted without danger to the life of the
This Court has held that the suddenness of the attack, the infliction of the accused.52
wound from behind the victim, the vulnerable position of the victim at the
time the attack was made, or the fact that the victim was unarmed, do not For these reasons, the Court is inclined to look upon the helpless position
by themselves render the of Javier as merely incidental to the attack, and that the decision to shoot
Javier was made in an instant.53
attack as treacherous.46 This is of particular significance in a case of an
instantaneous attack made by the accused whereby he gained an Considering the rule that treachery cannot be inferred but must be proved
advantageous position over the victim when the latter accidentally fell and as fully and convincingly as the crime itself, any doubt as to its existence
was rendered defenseless.47 The means employed for the commission of must be resolved in favor of Santiano. Accordingly, for failure of the
the crime or the mode of attack must be shown to have been consciously prosecution to prove treachery to qualify the killing to Murder, appellant
or deliberately adopted by the accused to insure the consummation of the Santiano may only be convicted of Homicide.54 The penalty, therefore,
crime and at the same time eliminate or reduce the risk of retaliation from under Article 249 of the Revised Penal Code, as amended, is reclusion
the intended victim.48 For the rules on treachery to apply, the sudden temporal.
attack must have been preconceived by the accused, unexpected by the

147
The Office of the Solicitor General is correct in that the courts a quo failed
to consider the aggravating circumstance of Inasmuch as the aggravating circumstance of taking advantage of official
position attended the killing, the Court awards exemplary damages in the
taking advantage of official position under Article 14 (1) of the Revised amount of P25,000.00 in accordance with Articles 2230 and 2234 of the
Penal Code, since the accused, a PNR security officer Civil Code and prevailing jurisprudence.60

covered by the Civil Service, committed the crime with the aid of a gun he WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 15304
had been authorized to carry as such.55 Considering that the mitigating dated June 20, 2002 is MODIFIED. Appellant Otello Santiano y Leonida is
circumstance of voluntary surrender, as duly appreciated by the courts a found GUILTY beyond reasonable doubt of Homicide and is sentenced to
quo, shall be offset against the aggravating circumstance of taking suffer the penalty of an indeterminate sentence from eight (8) years and
advantage of official position, the penalty should be imposed in its medium one (1) day of prision mayor as minimum to fourteen (14) years, eight (8)
period, pursuant to Article 64 (4) of the aforesaid Code. months, and one (1) day of reclusion temporal as maximum. Appellant
Santiano is further ordered to pay the heirs of the victim the amounts of
Applying the Indeterminate Sentence Law, the sentence of appellant P50,000.00 as death indemnity, P31,845.00 as funeral and burial expenses,
Santiano will consist of a minimum that is anywhere within the full range P25,000.00 as exemplary damages, P30,000.00 as attorney’s fees and
of prision mayor, and a maximum which is anywhere within reclusion P1,000.00
temporal in its medium period. This Court hereby fixes it to be from eight
(8) years and one (1) day of prision mayor as minimum, to fourteen (14) per appearance of counsel. Appellant Santiano shall be credited with the
years, eight (8) months, and one (1) day of reclusion temporal, as full extent of his preventive imprisonment.
maximum.
Appellant Rolando Dagani y Reyes is hereby ACQUITTED.
As to the award of damages, prevailing jurisprudence entitles the heirs of
the deceased to the amount of P50,000.00 as civil indemnity for the death SO ORDERED.
of the victim without need of any evidence or proof of damages.56

The CA erred in deleting the attorney’s fees and per appearance fees for G.R. No. 149152 February 2, 2007
lack of factual basis. Although the CA is correct in noting that the RTC failed
to justify these awards in the body of its Decision, this appeal opens the RUFINO S. MAMANGUN, Petitioner,
entire case for review and, accordingly, the records show that the vs.
foregoing PEOPLE OF THE PHILIPPINES, Respondent.

amounts had been stipulated by the parties,57 thereby dispensing with the DECISION
need to prove the same.58
GARCIA, J.:
As to moral damages, however, the widow of the victim, Erlinda Javier, is
not entitled to the same. She did not testify on any mental anguish or In this petition for review under Rule 45 of the Rules of Court, petitioner
emotional distress which she suffered as a result of her husband’s death. Rufino Mamangun y Silverio seeks the reversal of the Decision1 dated
No other heirs of Javier testified in the same manner.59 January 19, 2001 (promulgated on February 13, 2001) of the

148
Sandiganbayan in its Criminal Case No. 21131, convicting him of the crime
of Homicide. It is not disputed that on July 31, 1992, at about 8:00 in the evening, in
Brgy. Calvario, Meycauayan, Bulacan a certain Liberty Contreras was heard
The factual backdrop: shouting, "Magnanakaw…Magnanakaw." Several residents responded and
thereupon chased the suspect who entered the yard of Antonio Abacan
On September 12, 1994, herein petitioner, then a police officer, was and proceeded to the rooftop of Abacan’s house.
charged before the Sandiganbayan with the crime of Murder, allegedly
committed, per the indicting Information,2 docketed as Criminal Case No. At about 9:00 o’clock that same evening, the desk officer of the
21131, as follows: Meycauayan PNP Police Station, upon receiving a telephone call that a
robbery-holdup was in progress in Brgy. Calvario, immediately contacted
That on or about the 31st day of July 1992, in the Municipality of and dispatched to the scene the crew of Patrol Car No. 601 composed of
Meycauyan, (sic) Province of Bulacan, Philippines, and within the Team Leader SPO1 Andres Legaspi, with PO2 Eugenio Aminas and herein
jurisdiction of this Honorable Court, the said accused Rufino S. Mamangun, petitioner PO2 Rufino S. Mamangun; and Patrol Car No. 602 composed of
a public officer, being then a Police Officer (PO2), duly appointed as such Team Leader PO3 Sandiego San Gabriel, with PO2 Carlito Cruz and PO2
and acting in relation to his office, armed with a gun, with intent to kill, did Hobert Diaz. With the permission of Abacan, petitioner Mamangun, PO2
then and there willfully, unlawfully and feloniously, with treachery, evident Diaz and PO2 Cruz went to the rooftop of the house whereat the suspect
premeditation and abuse of superior strength, attack, assault and shoot was allegedly taking refuge.
one Gener M. Contreras with the said gun, hitting the latter on his body,
thereby inflicting (sic) him serious physical injuries which directly cause The three policemen, i.e., petitioner, Diaz and Cruz, each armed with a
(sic) his death. drawn handgun, searched the rooftop. There, they saw a man whom they
thought was the robbery suspect. At that instance, petitioner Mamangun,
CONTRARY TO LAW. who was walking ahead of the group, fired his handgun once, hitting the
man. The man turned out to be Gener Contreras (Contreras) who was not
On arraignment, petitioner, as accused below, duly assisted by a counsel the robbery suspect.
de oficio, entered a plea of "Not Guilty."
Contreras died from the gunshot wound. The autopsy conducted by Dr.
In the ensuing trial, the prosecution presented in evidence the testimonies Benito B. Caballero yielded the following findings:
of Crisanto Ayson (Ayson), an alleged eyewitness, and Dr. Benito Caballero,
then the designated Medico-Legal Officer of Bulacan who performed an The cause of death was "Shock due to massive external and internal
autopsy on the cadaver of the victim. hemorrhage due to multiple gunshot wounds in the left arm side of the
thorax, penetrating the left lung and vertebral column." There were
For its part, the defense adduced in evidence the testimonies of the several wounds caused by one (1) bullet.
accused himself, Rufino Mamangun, his co-policemen at the Philippine
National Police (PNP), namely, PO2 Carlito Cruz, PO4 Hobert O. Diaz and As shown on the sketch of human body attached to the Certificate of
Police Investigator SPO-1 Hernando B. Banez, all assigned at the Death, and as testified on by Dr. Caballero, the bullet entered through the
Meycauayan Police Station; and those of Lorenzo S. Abacan and Rogelio "lower third of the left arm, left side of the thorax and it penetrated the
Ingco, son and son-in-law, respectively, of Antonio Abacan, owner of the left lung and vertebral column and that is where the slug was found." From
house on which rooftop the shooting of the victim took place. a layman’s appreciation of the sketch, the bullet entered the outer, upper

149
left arm of the victim, exited through the inner side of the said upper left the latter’s head but Mamangun was able to evade the attack. This
arm, a little lower than the left armpit and the slug lodging on the victim’s prompted Mamangun to shoot the person on the left arm. All three
back where it was recovered at the vertebral column.3 claimed that it was only at this point that PO2 Cruz and Diaz approached
Contreras who told them, "Hindi ako. Hindi ako." Mamangun went near
From the foregoing admitted or undisputed facts, the prosecution and the Contreras and asked, "Why did you go to the rooftop? You know there are
defense presented conflicting versions as to how the fatal shooting of policemen here." Contreras was thereafter brought to the hospital where
Contreras by petitioner Mamangun actually happened. he died. After the shooting incident, Mamangun reported the same to the
desk officer, POI Filomeno de Luna, who advised him to remain in the
According to Ayson, the lone eyewitness for the prosecution, he police station. De Luna directed Police Investigator Hernando Banez to
accompanied the three policemen (Mamangun, Diaz and Cruz) to the investigate the incident. That same evening, Investigator Banez went to
rooftop of Abacan’s house. He was following petitioner Mamangun who the place where the shooting happened. Banez allegedly found a steel pipe
was ahead of the group. They passed through the second-floor door of the about three (3) feet long on the depressed portion of the roof.
house to the rooftop. The roof was lighted by an incandescent bulb from
an adjacent house. He was beside Mamangun when they saw, some four On January 19, 2001, after due proceedings, the Sandiganbayan came out
to five arms-length away, a man whom he (witness) recognized as Gener with its decision4 finding the petitioner guilty beyond reasonable doubt of
Contreras. Mamangun pointed his .45 cal. pistol at the man, who instantly only the crime of Homicide. In so finding, the Sandiganbayan did not
exclaimed, "Hindi ako, hindi ako!," to which Mamangun replied, "Anong appreciate the presence of the aggravating circumstances of treachery,
hindi ako?" Before he (Ayson) could say anything, Mamangun fired his gun, evident premeditation and abuse of superior strength to qualify the killing
hitting the man who turned out to be Contreras. He (witness) approached to Murder. But even as the said court rejected the petitioner’s claim that
the victim who was then lying on his left side unconscious. He brought the shooting was justified by self-defense, it nonetheless ruled that the
down the victim and they rushed him to the hospital where he died at crime of Homicide was attended by an incomplete justifying circumstance
about 10:00 o’clock that same evening. of the petitioner having acted in the performance of his duty as a
policeman, and also appreciated in his favor the generic mitigating
The defense has its own account of what purportedly actually circumstance of voluntary surrender. Dispositively, the decision reads:
transpired.1awphi1.net
WHEREFORE, the accused, RUFINO S. MAMANGUN, is hereby found
PO2 Mamangun, along with PO2 Cruz and PO2Diaz, denied the presence of GUILTY beyond reasonable doubt of the crime of Homicide, defined and
Ayson at the rooftop during the shooting incident. Corroborating one penalized under Article 249, Revised Penal Code, and taking into account
another, the three testified that they were the only ones at the scene of the attendance of one (1) privileged mitigation (sic) circumstance, one
the shooting, and that it was dark. They claimed that each of them, with generic circumstance and no aggravating circumstance, he is hereby
Mamangun on the lead, went on separate directions around a water tank. sentenced under the Indeterminate Sentence Law, to suffer the penalty of
As they met each other at the other side of the tank, PO2 Cruz pointed to a imprisonment of from Three (3) Years and Three (3) Months of prision
person crouching at the edge of the roof of the garage. Thinking that the correctional as minimum, to Seven (7) years of prision mayor, as
person was the suspect they were looking for, Mamangun chased said maximum, to indemnify the heirs (parents) of Gener Contreras in the total
person. They announced that they were police officers but the person amount of P352,025.00, and to past the costs.
continued to run in a crouching position until Mamangun caught up with
him and shouted, "Pulis. Tigil," whereupon the person suddenly stopped, SO ORDERED.
turned around, faced Mamangun, and raised a stainless steel pipe towards

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Unable to accept the judgment of conviction, petitioner is now with this necessary consequence of the due performance of his duty as a policeman
Court via the present recourse alleging that the Sandiganbayan committed is essential to exempt him from criminal liability.
reversible error in failing to apply paragraph 5, Article 11, of the Revised
Penal Code, which would have absolved him from criminal liability on the As we see it, petitioner’s posturing that he shot Contreras because the
basis of his submission that the shooting in question was done in the latter tried to strike him with a steel pipe was a mere afterthought to
performance of a duty or in the lawful exercise of a right or office. exempt him from criminal liability.

First off, petitioner insists that the shooting, which ultimately caused the We see no plausible basis to depart from the Sandiganbayan’s findings that
demise of Contreras, was justified because he was repelling Contreras’ there was no reason for the petitioner to shoot Contreras. The latter was
unlawful attack on his person, as Contreras was then about to strike him unarmed and had already uttered, "Hindi po ako, Hindi po ako" before the
on the head with a steel pipe. petitioner fatally shot him on the left arm. Prosecution witness Ayson, who
was then behind the petitioner when the latter shot Contreras, testified
We are not persuaded. that to the victim’s utterances, the petitioner even responded, "Anong
hindi ako," and immediately shot Contreras.8 As correctly observed by the
Well-settled is the rule that factual findings of the Sandiganbayan are Sandiganbayan:
conclusive upon the Court except where: (1) the conclusion is a finding
grounded entirely on speculations, surmises and conjectures; (2) the Besides being self-serving (with respect to the accused) and biased (with
inference made is manifestly mistaken; (3) there is grave abuse of respect to his co-policemen-witnesses), We find (1) the claim of the
discretion; (4) the judgment is based on misapprehension of facts and the accused and his co-policemen-witnesses that the victim (Contreras)
findings of fact are premised on the absence of evidence and are attacked the said accused and (2) their seemingly "positive" identification
contradicted by the evidence on record.5 None of these exceptions obtains of the stainless steel pipe (more of a rod) as his weapon, to be of doubtful
in this case. credibility, for the following reasons:

Having admitted6 the fatal shooting of Contreras on the night of July 31, (1) We have no doubt that, as claimed by PO2 Carlito Cruz and PO2 Hobert
1992, petitioner is charged with the burden of adducing convincing Diaz, the three policemen appropriately identified themselves as police
evidence to show that the killing was done in the fulfillment of his duty as officers as they started chasing the man they saw "crouching," and, as
a policeman. claimed by accused PO2 Rufino Mamangun, that, as he was about to catch
up with said man, he shouted, "Pulis! Tigil!" With all these introductions
The justifying circumstance of fulfillment of duty under paragraph 5, Article and forewarnings, it is utterly incredible and contrary to human experience
II, of the Revised Penal Code may be invoked only after the defense that, that man, later identified to be Gener Contreras and admittedly not
successfully proves that: (1) the accused acted in the performance of a the person they were looking for, purportedly armed only with a stainless
duty; and (2) the injury inflicted or offense committed is the necessary steel "lead" pipe (more of a rod) would suddenly stop, turn around and
consequence of the due performance or lawful exercise of such duty.7 attack one of the three policemen who were chasing him, one after the
other, with drawn guns.
Concededly, the first requisite is present in this case. Petitioner, a police
officer, was responding to a robbery-holdup incident. His presence at the (2) When the victim (Gener Contreras) fell down after being shot by
situs of the crime was in accordance with the performance of his duty. accused PO2 Mamangun, and as the latter went near the fallen victim, said
However, proof that the shooting and ultimate death of Contreras was a accused asked, "Why did you go to the rooftop. You know there are

151
policemen here." He admits that he did not ask the victim, "Why did you strengthen credibility because they discount the possibility that the
try to hit me, if you are not the one?" This admission clearly belies the testimony was rehearsed.9
claim of the police-witnesses that Gener Contreras attacked the accused
policeman with an iron pipe when he was shot, for the accused should For sure, the record reveals that Ayson’s answers to the questions
have asked the latter question. propounded by the defense counsel are clear and categorical. As to where
the victim died, Ayson clarified that the victim was already at the rooftop
(3) The location of the entry of the bullet fired by accused Mamangun even before the arrival of the police officers. As to why he was not able to
which is at the outer left arm at about the bicep of the victim and its warn Mamangun that the victim was his relative, Ayson explained that he
trajectory as it penetrated his body hitting his vital organs along the way was not able to utter any word because when Contreras said "Hindi ako.
belies the claim of the accused that the victim was facing him and had just Hindi ako," petitioner suddenly fired at the latter.10 As to the claim that
missed his head with an iron pipe, as instead the victim must have Ayson was also on the roof, record shows that the robbery-holdup
instinctively shielded his body with his left arm. happened at around 8:00 in the evening. Before the policemen arrived,
Ayson and Contreras were already pursuing the robber.11 Ayson also
Moreover, petitioner’s pretense that Contreras struck him with a steel pipe testified that when the victim was shot by the petitioner, the former fell on
is intriguing. As it is, petitioner did not report the same to Police his left side unconscious; that he did not leave his house after the incident
Investigator Banez when he reported back to the police station after the because he was afraid that the policemen would detain him.12
shooting incident. It was only when a lead pipe was recovered from the
scene and brought to the police station that petitioner conveniently Self-defense, whether complete or incomplete, cannot be appreciated as a
remembered Contreras trying to hit him with a pipe. Such a vital valid justifying circumstance in this case. For, from the above admitted,
information could not have escaped the petitioner’s mind. We are thus uncontroverted or established facts, the most important element of
inclined to believe that the alleged actuation of Contreras, which could unlawful aggression on the part of the victim to justify a claim of self
have justified petitioner’s shooting him, was nothing but a concocted story defense was absent. Lacking this essential and primary element of
to evade criminal liability. Indeed, knowing that he shot Contreras, the unlawful aggression, petitioner’s plea of self-defense, complete or
least that the petitioner should have done was to bring with him to the incomplete, must have to fail.
police station the very pipe with which Contreras tried to attack him. As
borne by the evidence, however, it was only after a police investigator To be sure, acts in the fulfillment of a duty, without more, do not
referred to the scene that the lead pipe surfaced. completely justify the petitioner’s firing the fatal gunshot at the victim.
True, petitioner, as one of the policemen responding to a reported robbery
Petitioner would likewise argue that the testimony of prosecution witness then in progress, was performing his duty as a police officer as well as
Ayson was incredible and riddled with inconsistencies. when he was trying to effect the arrest of the suspected robber and in the
process, fatally shoot said suspect, albeit the wrong man. However, in the
The alleged contradictions cited by the petitioner, i.e. where the victim absence of the equally necessary justifying circumstance that the injury or
was shot, where he died, and as to whether Ayson left his house after the offense committed be the necessary consequence of the due performance
shooting incident, are but minor details which do not affect Ayson’s of such duty, there can only be incomplete justification, a privileged
credibility. We have held time and again that few discrepancies and mitigating circumstance under Articles 13 and 69 of the Revised Penal
inconsistencies in the testimony of a witness referring to minor details and Code.
not in actuality touching upon the central fact of the crime, do not impair
his credibility. Quite the contrary, such minor inconsistencies even tend to

152
There can be no quibbling that there was no rational necessity for the malversation under Article 217 of the Revised Penal Code. Tabuena and
killing of Contreras. Petitioner could have first fired a warning shot before Peralta were found guilty beyond reasonable doubt of having malversed
pulling the trigger against Contreras who was one of the residents chasing the total amount of P55 Million of the Manila International Airport
the suspected robber. Authority (MIAA) funds during their incumbency as General Manager and
Acting Finance Services Manager, respectively, of MIAA, and were thus
All told, we find no reversible error committed by the Sandiganbayan in meted the following sentence:
convicting the petitioner of the crime of Homicide attended by the
privileged mitigating circumstance of incomplete justifying circumstance of (1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to
having acted in the performance of his duty as a policeman and the generic suffer the penalty of imprisonment of seventeen (17) years and one (1) day
mitigating circumstance of voluntary surrender. of reclusion temporal as minimum to twenty (20) years of reclusion
temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS
IN VIEW WHEREOF, the instant petition is DENIED and the assailed decision (P25,000,000.00), the amount malversed. He shall also reimburse the
of the Sandiganbayan is AFFIRMED in all respects. Manila International Airport Authority the sum of TWENTY-FIVE MILLION
PESOS (P25,000,000.00).
No pronouncement as to costs.
In addition, he shall suffer the penalty of perpetual special disqualification
SO ORDERED. from public office.

(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to


[G.R. No. 103501-03. February 17, 1997] suffer the penalty of imprisonment of seventeen (17) years and one (1) day
of reclusion temporal as minimum, and twenty (20) years of reclusion
LUIS A. TABUENA, petitioner, vs. HONORABLE SANDIGANBAYAN, and THE temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS
PEOPLE OF THE PHILIPPINES, respondents. (P25,000,000.00), the amount malversed. He shall also reimburse the
Manila International Airport Authority the sum of TWENTY-FIVE MILLION
[G.R. No. 103507. February 17, 1997] PESOS (P25,000,000.00).

ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First In addition, he shall suffer the penalty of perpetual special disqualification
Division), and THE PEOPLE OF THE PHILIPPINES, represented by the from public office.
OFFICE OF THE SPECIAL PROSECUTOR, respondents.
(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M.
DECISION Peralta are each sentenced to suffer the penalty of imprisonment of
seventeen (17) years and one (1) day of reclusion temporal as minimum
FRANCISCO, J.: and twenty (20) years of reclusion temporal as maximum and for each of
them to pay separately a fine of FIVE MILLION PESOS (P5,000,000.00) the
Through their separate petitions for review,[1] Luis A. Tabuena and Adolfo amount malversed. They shall also reimburse jointly and severally the
M. Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan Manila International Airport Authority the sum of FIVE MILLION PESOS
decision dated October 12, 1990,[2] as well as the Resolution dated (P5,000,000.00).
December 20, 1991[3] denying reconsideration, convicting them of

153
In addition, they shall both suffer the penalty of perpetual special xxx
disqualification from public office.
That on or about the 16th day of January, 1986, and for sometime
A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant subsequent thereto, in the City of Pasay, Philippines and within the
General Manager of MIAA, has remained at large. jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo
G. Dabao, both public officers, being then the General Manager and
There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) Assistant General Manager, respectively, of the Manila International
since the total amount of P55 Million was taken on three (3) separate Airport Authority (MIAA), and accountable for public funds belonging to
dates of January, 1986. Tabuena appears as the principal accused - he the MIAA, they being the only ones authorized to make withdrawals
being charged in all three (3) cases. The amended informations in criminal against the cash accounts of MIAA pursuant to its board resolutions,
case nos. 11758, 11759 and 11760 respectively read: conspiring, confederating and confabulating with each other, did then and
there wilfully, unlawfully, feloniously, and with intent to defraud the
That on or about the 10th day of January, 1986, and for sometime government, take and misappropriate the amount of TWENTY FIVE
subsequent thereto, in the City of Pasay, Philippines, and within the MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the
jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo issuance of a managers check for said amount in the name of accused Luis
G. Dabao, both public officers, being then the General Manager and A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3
Assistant General Manager, respectively, of the Manila International in the PNB Extension Office at the Manila International Airport in Pasay
Airport Authority (MIAA), and accountable for public funds belonging to City, purportedly as partial payment to the Philippine National
the MIAA, they being the only ones authorized to make withdrawals Construction Corporation (PNCC), the mechanics of which said accused
against the cash accounts of MIAA pursuant to its board resolutions, Tabuena would personally take care of, when both accused well knew that
conspiring, confederating and confabulating with each other, did then and there was no outstanding obligation of MIAA in favor of PNCC, and after
there wilfully, unlawfully, feloniously, and with intent to defraud the the issuance of the above-mentioned managers check, accused Luis A.
government, take and misappropriate the amount of TWENTY FIVE Tabuena encashed the same and thereafter both accused misappropriated
MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the and converted the proceeds thereof to their personal use and benefit, to
issuance of a managers check for said amount in the name of accused Luis the damage and prejudice of the government in the aforesaid amount.
A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3
in the PNB Extension Office at the Manila International Airport in Pasay CONTRARY TO LAW.
City, purportedly as partial payment to the Philippine National
Construction Corporation (PNCC), the mechanics of which said accused xxx
Tabuena would personally take care of, when both accused well knew that
there was no outstanding obligation of MIAA in favor of PNCC, and after That on or about the 29th day of January, 1986, and for sometime
the issuance of the above-mentioned managers check, accused Luis A. subsequent thereto, in the City of Pasay, Philippines, and within the
Tabuena encashed the same and thereafter both accused misappropriated jurisdiction of this Honorable Court, accused Luis A. Tabuena and Adolfo
and converted the proceeds thereof to their personal use and benefit, to M. Peralta, both public officers, being then the General Manager and
the damage and prejudice of the government in the aforesaid amount. Acting Manager, Financial Services Department, respectively, of the Manila
International Airport Authority (MIAA), and accountable for public funds
CONTRARY TO LAW. belonging to the MIAA, they being the only ones authorized to make
withdrawals against the cash accounts of MIAA pursuant to its board

154
resolutions, conspiring, confederating and confabulating with each other,
did then and there wilfully, unlawfully, feloniously, and with intent to Manila International Airport Authority
defraud the government, take and misappropriate the amount of FIVE
MILLION PESOS (P5,000,000.00) from MIAA funds by applying for the You are hereby directed to pay immediately the Philippine National
issuance of a managers check for said amount in the name of accused Luis Construction Corporation, thru this Office, the sum of FIFTY FIVE MILLION
A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3 (P55,000,000.00) PESOS in cash as partial payment of MIAAs account with
in the PNB Extension Office at the Manila International Airport in Pasay said Company mentioned in a Memorandum of Minister Roberto Ongpin
City, purportedly as partial payment to the Philippine National to this Office dated January 7, 1985 and duly approved by this Office on
Construction Corporation (PNCC), the mechanics of which said accused February 4, 1985.
Tabuena would personally take care of, when both accused well knew that
there was no outstanding obligation of MIAA in favor of PNCC, and after Your immediate compliance is appreciated.
the issuance of the above-mentioned managers check, accused Luis A.
Tabuena encashed the same and thereafter both accused misappropriated (Sgd.) FERDINAND MARCOS.[4]
and converted the proceeds thereof to their personal use and benefit, to
the damage and prejudice of the government in the aforesaid amount. The January 7, 1985 memorandum of then Minister of Trade and Industry
Roberto Ongpin referred to in the MARCOS Memorandum, reads in full:
CONTRARY TO LAW.
MEMORANDUM
Gathered from the documentary and testimonial evidence are the
following essential antecedents: F o r : The President

Then President Marcos instructed Tabuena over the phone to pay directly F r o m : Minister Roberto V. Ongpin
to the presidents office and in cash what the MIAA owes the Philippine
National Construction Corporation (PNCC), to which Tabuena replied, Yes, D a t e : 7 January 1985
sir, I will do it. About a week later, Tabuena received from Mrs. Fe Roa-
Gimenez, then private secretary of Marcos, a Presidential Memorandum Subject : Approval of Supplemental Contracts and
dated January 8, 1986 (hereinafter referred to as MARCOS Memorandum)
reiterating in black and white such verbal instruction, to wit: Request for Partial Deferment of Repayment of PNCCs Advances for MIA
Development Project
Office of the President
May I request your approval of the attached recommendations of Minister
of the Philippines Jesus S. Hipolito for eight (8) supplemental contracts pertaining to the MIA
Development Project (MIADP) between the Bureau of Air Transport (BAT)
Malacaang and Philippine National Construction Corporation (PNCC), formerly CDCP,
as follows:
January 8, 1986
1. Supplemental Contract No. 12
MEMO TO: The General Manager

155
Package Contract No. 2 7. Supplemental Contract No. 18

Package Contract No. 2

P11,106,600.95

2. Supplemental Contract No. 13 6,110,115.75

5,758,961.52 8. Supplemental Contract No. 3

3. Supplemental Contract No. 14 Package Contract No. II

Package Contract No. 2

16,617,655.49

4,586,610.80 (xerox copies only; original memo was submitted to the Office of the
President on May 28, 1984)
4. Supplemental Contract No. 15
In this connection, please be informed that Philippine National
1,699,862.69 Construction Corporation (PNCC), formerly CDCP, has accomplishment
billings on the MIA Development Project aggregating P98.4 million,
5. Supplemental Contract No. 16 inclusive of accomplishments for the aforecited contracts. In accordance
with contract provisions, outstanding advances totalling P93.9 million are
Package Contract No. 2 to be deducted from said billings which will leave a net amount due to
PNCC of only P4.5 million.

At the same time, PNCC has potential escalation claims amounting to P99
233,561.22 million in the following stages of approval/evaluation:

6. Supplemental Contract No. 17 Approved by Price Escalation Committee (PEC) but pended for lack of
funds
Package Contract No. 2
P 1.9 million

Endorsed by project consultants and currently being evaluated by PEC


8,821,731.08
30.7 million

156
The first withdrawal was made on January 10, 1986 for P25 Million,
Submitted by PNCC directly to PEC and currently under evaluation following a letter of even date signed by Tabuena and Dabao requesting
the PNB extension office at the MIAA - the depository branch of MIAA
66.5 million funds, to issue a managers check for said amount payable to Tabuena. The
check was encashed, however, at the PNB Villamor Branch. Dabao and the
Total cashier of the PNB Villamor branch counted the money after which,
Tabuena took delivery thereof. The P25 Million in cash were then placed in
P99.1 million peerless boxes and duffle bags, loaded on a PNB armored car and
delivered on the same day to the office of Mrs. Gimenez located at Aguado
There has been no funding allocation for any of the above escalation Street fronting Malacaang. Mrs. Gimenez did not issue any receipt for the
claims due to budgetary constraints. money received.

The MIA Project has been completed and operational as far back as 1982 Similar circumstances surrounded the second withdrawal/encashment and
and yet residual amounts due to PNCC have not been paid, resulting in delivery of another P25 Million, made on January 16, 1986.
undue burden to PNCC due to additional cost of money to service its
obligations for this contract. The third and last withdrawal was made on January 31, 1986 for P5 Million.
Peralta was Tabuenas co-signatory to the letter- request for a managers
To allow PNCC to collect partially its billings, and in consideration of its check for this amount. Peralta accompanied Tabuena to the PNB Villamor
pending escalation billings, may we request for His Excellencys approval for branch as Tabuena requested him to do the counting of the P5 Million.
a deferment of the repayment of PNCCs advances to the extent of P30 After the counting, the money was placed in two (2) peerless boxes which
million corresponding to about 30% of P99.1 million in escalation claims of were loaded in the trunk of Tabuenas car. Peralta did not go with Tabuena
PNCC, of which P32.5 million has been officially recognized by MIADP to deliver the money to Mrs. Gimenez office at Aguado Street. It was only
consultants but could not be paid due to lack of funding.Korte upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all
the amounts she received from Tabuena. The receipt, dated January 30,
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out 1986, reads:
of existing MIA Project funds. This amount represents the excess of the
gross billings of PNCC of P98.4 million over the undeferred portion of the Malacaang
repayment of advances of P63.9 million.
Manila
(Sgd.) ROBERTO V. ONGPIN
January 30, 1986
Minister[5]
RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE
In obedience to President Marcos verbal instruction and memorandum, MILLION PESOS (P55,000,000.00) as of the following dates:
Tabuena, with the help of Dabao and Peralta, caused the release of P55
Million of MIAA funds by means of three (3) withdrawals. Jan. 10 - P25,000,000.00

Jan. 16 - 25,000,000.00

157
Anent the first proposition, Tabuena and Peralta stress that they were
Jan. 30 - 5,000,000.00 being charged with intentional malversation, as the amended informations
commonly allege that:
(Sgd.) Fe Roa-Gimenez
x x x accused x x x conspiring, confederating and confabulating with each
The disbursement of the P55 Million was, as described by Tabuena and other, did then and there wilfully, unlawfully, feloniously, and with intent
Peralta themselves, out of the ordinary and not based on the normal to defraud the government, take and misappropriated the amount of x x x.
procedure. Not only were there no vouchers prepared to support the
disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt But it would appear that they were convicted of malversation by
for the P55 Million was presented. Defense witness Francis Monera, then negligence. In this connection, the Courts attention is directed to p. 17 of
Senior Assistant Vice President and Corporate Comptroller of PNCC, even the December 20, 1991 Resolution (denying Tabuenas and Peraltas motion
affirmed in court that there were no payments made to PNCC by MIAA for for reconsideration) wherein the Sandiganbayan said:
the months of January to June of 1986.
xxxxxxxxx
The position of the prosecution was that there were no outstanding
obligations in favor of PNCC at the time of the disbursement of the P55 On the contrary, what the evidence shows is that accused Tabuena
Million. On the other hand, the defense of Tabuena and Peralta, in short, delivered the P55 Million to people who were not entitled thereto, either
was that they acted in good faith. Tabuena claimed that he was merely as representatives of MIAA or of the PNCC.Sclaw
complying with the MARCOS Memorandum which ordered him to forward
immediately to the Office of the President P55 Million in cash as partial It proves that Tabuena had deliberately consented or permitted through
payment of MIAAs obligations to PNCC, and that he (Tabuena) was of the negligence or abandonment, some other person to take such public funds.
belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared Having done so, Tabuena, by his own narration, has categorically
the same belief and so he heeded the request of Tabuena, his superior, for demonstrated that he is guilty of the misappropriation or malversation of
him (Peralta) to help in the release of P5 Million. P55 Million of public funds. (Underscoring supplied.)

With the rejection by the Sandiganbayan of their claim of good faith which To support their theory that such variance is a reversible flaw, Tabuena
ultimately led to their conviction, Tabuena and Peralta now set forth a and Peralta argue that:
total of ten (10) errors[6] committed by the Sandiganbayan for this Courts
consideration. It appears, however, that at the core of their plea that we 1) While malversation may be committed intentionally or by negligence,
acquit them are the following: both modes cannot be committed at the same time.

1) the Sandiganbayan convicted them of a crime not charged in the 2) The Sandiganbayan was without jurisdiction to convict them of
amended informations, and malversation of negligence where the amended informations charged
them with intentional malversation.[7]
2) they acted in good faith.
3) Their conviction of a crime different from that charged violated their
constitutional right to be informed of the accusation.[8]

158
We do not agree with Tabuena and Peralta on this point. Illuminative and
controlling is Cabello v. Sandiganbayan[9] where the Court passed upon Moreover, Section 5, Rule 116, of the Rules of Court does not require that
similar protestations raised by therein accused-petitioner Cabello whose all the essential elements of the offense charged in the information be
conviction for the same crime of malversation was affirmed, in this wise: proved, it being sufficient that some of said essential elements or
ingredients thereof be established to constitute the crime proved. x x x.
x x x even on the putative assumption that the evidence against petitioner
yielded a case of malversation by negligence but the information was for The fact that the information does not allege that the falsification was
intentional malversation, under the circumstances of this case his committed with imprudence is of no moment for here this deficiency
conviction under the first mode of misappropriation would still be in order. appears supplied by the evidence submitted by appellant himself and the
Malversation is committed either intentionally or by negligence. The dolo result has proven beneficial to him. Certainly, having alleged that the
or the culpa present in the offense is only a modality in the perpetration of falsification has been willful, it would be incongruous to allege at the same
the felony. Even if the mode charged differs from the mode proved, the time that it was committed with imprudence for a charge of criminal intent
same offense of malversation is involved and conviction thereof is proper. is incompatible with the concept of negligence.
x x x.
Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated
In Samson vs. Court of Appeals, et. al., we held that an accused charged rationale and arguments also apply to the felony of malversation, that is,
with willful or intentional falsification can validly be convicted of that an accused charged with willful malversation, in an information
falsification through negligence, thus: containing allegations similar to those involved in the present case, can be
validly convicted of the same offense of malversation through negligence
While a criminal negligent act is not a simple modality of a willful crime, as where the evidence sustains the latter mode of perpetrating the offense.
we held in Quizon vs. Justice of the Peace of Bacolor, G.R. No. L-6641, July
28, 1995, but a distinct crime in our Penal Code, designated as a quasi Going now to the defense of good faith, it is settled that this is a valid
offense in our Penal Code, it may however be said that a conviction for the defense in a prosecution for malversation for it would negate criminal
former can be had under an information exclusively charging the intent on the part of the accused. Thus, in the two (2) vintage, but
commission of a willful offense, upon the theory that the greater includes significant malversation cases of US v. Catolico[10] and US v. Elvia,[11] the
the lesser offense. This is the situation that obtains in the present case. Court stressed that:
Appellant was charged with willful falsification but from the evidence
submitted by the parties, the Court of Appeals found that in effecting the To constitute a crime, the act must, except in certain crimes made such by
falsification which made possible the cashing of the checks in question, statute, be accompanied by a criminal intent, or by such negligence or
appellant did not act with criminal intent but merely failed to take proper indifference to duty or to consequences as, in law, is equivalent to criminal
and adequate means to assure himself of the identity of the real claimants intent. The maxim is actus non facit reum, nisi mens sit rea - a crime is not
as an ordinary prudent man would do. In other words, the information committed if the mind of the person performing the act complained of is
alleges acts which charge willful falsification but which turned out to be innocent.
not willful but negligent. This is a case covered by the rule when there is a
variance between the allegation and proof, and is similar to some of the The rule was reiterated in People v. Pacana,[12] although this case
cases decided by this Tribunal. involved falsification of public documents and estafa:

xxx

159
Ordinarily, evil intent must unite with an unlawful act for there to be a agency (MIAA) to another (PNCC). However, the unlawfulness of the
crime. Actus non facit reum, nisi mens sit rea. There can be no crime when MARCOS Memorandum was being argued, on the observation, for
the criminal mind is wanting. instance, that the Ongpin Memo referred to in the presidential directive
reveals a liability of only about P34.5 Million. The Sandiganbayan in this
American jurisprudence echoes the same principle. It adheres to the view connection said:
that criminal intent in embezzlement is not based on technical mistakes as
to the legal effect of a transaction honestly entered into, and there can be Exhibits 2 and 2-a (pages 1 and 2 of the memorandum of Min. Ongpin to
no embezzlement if the mind of the person doing the act is innocent or if the President dated January 7, 1985) were mainly:
there is no wrongful purpose.[13] The accused may thus always introduce
evidence to show he acted in good faith and that he had no intention to a.) for the approval of eight Supplemental Contracts; and
convert.[14] And this, to our mind, Tabuena and Peralta had meritoriously
shown. b.) a request for partial deferment of payment by PNCC for advances made
for the MIAA Development Project, while at the same time recognizing
In so far as Tabuena is concerned, with the due presentation in evidence of some of the PNCCs escalation billings which would result in making
the MARCOS Memorandum, we are swayed to give credit to his claim of payable to PNCC the amount of P34.5 million out of existing MIAA Project
having caused the disbursement of the P55 Million solely by reason of such funds.
memorandum. From this premise flows the following reasons and/or
considerations that would buttress his innocence of the crime of Thus:
malversation.
xxx
First. Tabuena had no other choice but to make the withdrawals, for that
was what the MARCOS Memorandum required him to do. He could not be To allow PNCC to collect partially its billings, and in consideration of its
faulted if he had to obey and strictly comply with the presidential directive, pending escalation billings, may we request for His Excellencys approval for
and to argue otherwise is something easier said than done. Marcos was a deferment of repayment of PNCCs advances to the extent of P30 million
undeniably Tabuenas superior the former being then the President of the corresponding to about 30% of P99.1 million in escalation claims of PNCC,
Republic who unquestionably exercised control over government agencies of which P32.6 million has been officially recognized by MIADP consultants
such as the MIAA and PNCC.[15] In other words, Marcos had a say in but could not be paid due to lack of funding.
matters involving inter-government agency affairs and transactions, such
as for instance, directing payment of liability of one entity to another and Our proposal will allow BAT to pay PNCC the amount of P34.5 million out
the manner in which it should be carried out. And as a recipient of such of existing MIA Project funds. This amount represents the excess of the
kind of a directive coming from the highest official of the land no less, good gross billings of PNCC of P98.4 million over the undeferred portion of the
faith should be read on Tabuenas compliance, without hesitation nor any repayment of advances of P63.9 million.
question, with the MARCOS Memorandum. Tabuena therefore is entitled
to the justifying circumstance of Any person who acts in obedience to an While Min. Ongpin may have, therefore recognized the escalation claims of
order issued by a superior for some lawful purpose.[16] The subordinate- the PNCC to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial
superior relationship between Tabuena and Marcos is clear. And so too, is portion thereof was still in the stages of evaluation and approval, with only
the lawfulness of the order contained in the MARCOS Memorandum, as it P32.6 million having been officially recognized by the MIADP consultants.
has for its purpose partial payment of the liability of one government

160
If any payments were, therefore, due under this memo for Min. Ongpin
(upon which President Marcos Memo was based) they would only be for a ATTY. ANDRES
sum of up to P34.5 million.[17]
Q Can you tell us, Mr. Witness, what these obligations represent?
xxxxxxxxx
WITNESS
V. Pres. Marcos order to Tabuena dated January 8, 1986 baseless.
A These obligations represent receivables on the basis of our billings to
Not only was Pres. Marcos Memo (Exhibit 1) for Tabuena to pay P55 MIA as contract-owner of the project that the Philippine National
million irrelevant, but it was actually baseless. Construction Corporation constructed. These are billings for escalation
mostly, sir.
This is easy to see.
Q What do you mean by escalation?
Exhibit 1 purports to refer itself to the Ongpin Memorandum (Exhibit 2, 2-
a); Exhibit 1, however, speaks of P55 million to be paid to the PNCC while A Escalation is the component of our revenue billings to the contract-
Exhibit 2 authorized only P34.5 million. The order to withdraw the amount owner that are supposed to take care of price increases, sir.
of P55 million exceeded the approved payment of P34.5 million by P20.5
million. Min. Ongpins Memo of January 7, 1985 could not therefore serve x x x x x x x x x.[20]
as a basis for the Presidents order to withdraw P55 million.[18]
ATTY ANDRES
Granting this to be true, it will not nevertheless affect Tabuenas good faith
so as to make him criminally liable. What is more significant to consider is Q When you said these are accounts receivable, do I understand from you
that the MARCOS Memorandum is patently legal (for on its face it directs that these are due and demandable?
payment of an outstanding liability) and that Tabuena acted under the
honest belief that the P55 million was a due and demandable debt and A Yes, sir.[21]
that it was just a portion of a bigger liability to PNCC. This belief is
supported by defense witness Francis Monera who, on direct examination, Thus, even if the order is illegal if it is patently legal and the subordinate is
testified that: not aware of its illegality, the subordinate is not liable, for then there
would only be a mistake of fact committed in good faith.[22] Such is the
ATTY ANDRES ruling in Nassif v. People[23] the facts of which, in brief, are as follows:

Q Can you please show us in this Exhibit 7 and 7-a where it is indicated the Accused was charged with falsification of commercial document. A mere
receivables from MIA as of December 31, 1985? employee of R.J. Campos, he inserted in the commercial document alleged
to have been falsified the word sold by order of his principal. Had he
A As of December 31, 1985, the receivables from MIA is shown on page 2, known or suspected that his principal was committing an improper act of
marked as Exhibit 7-a, sir, P102,475,392.35. falsification, he would be liable either as a co-principal or as an accomplice.
However, there being no malice on his part, he was exempted from
x x x x x x x x x.[19]

161
criminal liability as he was a mere employee following the orders of his government personnel, some of them working at the provincial auditors
principal.[24] and the provincial treasurers offices. And if those payments ran counter to
auditing rules and regulations, they did not amount to a criminal offense
Second. There is no denying that the disbursement, which Tabuena and he should only be held administratively or civilly liable.
admitted as out of the ordinary, did not comply with certain auditing rules
and regulations such as those pointed out by the Sandiganbayan, to wit: Likewise controlling is US v. Elvia[27] where it was held that payments in
good faith do not amount to criminal appropriation, although they were
a) [except for salaries and wages and for commutation of leaves] all made with insufficient vouchers or improper evidence. In fact, the
disbursements above P1,000.00 should be made by check (Basic Guidelines Dissenting Opinions reference to certain provisions in the revised Manual
for Internal Control dated January 31, 1977 issued by COA) on Certificate of Settlement and Balances - apparently made to underscore
Tabuenas personal accountability, as agency head, for MIAA funds - would
b) payment of all claims against the government had to be supported with all the more support the view that Tabuena is vulnerable to civil sanctions
complete documentation (Sec. 4, P.D. 1445, State Auditing Code of the only. Sections 29.2 and 29.5 expressly and solely speak of civilly liable to
Philippines). In this connection, the Sandiganbayan observed that: describe the kind of sanction imposable on a superior officer who performs
his duties with bad faith, malice or gross negligence and on a subordinate
There were no vouchers to authorize the disbursements in question. There officer or employee who commits willful or negligent acts x x x which are
were no bills to support the disbursement. There were no certifications as contrary to law, morals, public policy and good customs even if he acted
to the availability of funds for an unquestionably staggering sum of P55 under order or instructions of his superiors.
Million.[25]
Third. The Sandiganbayan made the finding that Tabuena had already
c) failure to protest (Sec. 106, P.D. 1445) converted and misappropriated the P55 Million when he delivered the
same to Mrs. Gimenez and not to the PNCC, proceeding from the following
But this deviation was inevitable under the circumstances Tabuena was in. definitions/concepts of conversion:
He did not have the luxury of time to observe all auditing procedures of
disbursement considering the fact that the MARCOS Memorandum Conversion, as necessary element of offense of embezzlement, being the
enjoined his immediate compliance with the directive that he forward to fraudulent appropriation to ones own use of anothers property which does
the Presidents Office the P55 Million in cash. Be that as it may, Tabuena not necessarily mean to ones personal advantage but every attempt by
surely cannot escape responsibility for such omission. But since he was one person to dispose of the goods of another without right as if they were
acting in good faith, his liability should only be administrative or civil in his own is conversion to his own use. (Terry v. Water Improvement Dist.
nature, and not criminal. This follows the decision in Villacorta v. No. 5 of Tulsa County, 64 p. 2d 904, 906, 179 Okl. 106)
People[26] where the Court, in acquitting therein accused municipal
treasurer of Pandan, Catanduanes of malversation after finding that he - At p. 207, Words and Phrases,
incurred a shortage in his cash accountability by reason of his payment in
good faith to certain government personnel of their legitimate wages, Permanent Edition 9A.
leave allowances, etc., held that:
Conversion is any interference subversive of the right of the owner of
Nor can negligence approximating malice or fraud be attributed to personal property to enjoy and control it. The gist of conversion is the
petitioner. If he made wrong payments, they were in good faith mainly to usurpation of the owners right of property, and not the actual damages

162
inflicted. Honesty of purpose is not a defense. (Ferrera v. Parks, 23 p. 883, if it later turned out that PNCC never received the money. Thus, it has been
885 19 Or. 141) said that:

- At page 168, id. Good faith in the payment of public funds relieves a public officer from the
crime of malversation.
xxxxxxxxx
xxxxxxxxx
The words convert and misappropriate connote an act of using or
disposing of anothers property as if it were ones own. They presuppose Not every unauthorized payment of public funds is malversation. There is
that the thing has been devoted to a purpose or use different from that malversation only if the public officer who has custody of public funds
agreed upon. To appropriate to ones own use includes not only conversion should appropriate the same, or shall take or misappropriate or shall
to ones personal advantage but every attempt to dispose of the property consent, or through abandonment or negligence shall permit any other
of another without right. person to take such public funds. Where the payment of public funds has
been made in good faith, and there is reasonable ground to believe that
People vs. Webber, 57 O.G. the public officer to whom the fund had been paid was entitled thereto, he
is deemed to have acted in good faith, there is no criminal intent, and the
p. 2933, 2937 payment, if it turns out that it is unauthorized, renders him only civilly but
not criminally liable.[29]
By placing them at the disposal of private persons without due
authorization or legal justification, he became as guilty of malversation as Fourth. Even assuming that the real and sole purpose behind the MARCOS
if he had personally taken them and converted them to his own use. Memorandum was to siphon-out public money for the personal benefit of
those then in power, still, no criminal liability can be imputed to Tabuena.
People vs. Luntao, 50 O.G. There is no showing that Tabuena had anything to do whatsoever with the
execution of the MARCOS Memorandum. Nor is there proof that he
p. 1182, 1183[28] profited from the felonious scheme. In short, no conspiracy was
established between Tabuena and the real embezzler/s of the P55 Million.
We do not agree. It must be stressed that the MARCOS Memorandum In the cases of US v. Acebedo[30] and Ang v. Sandiganbayan,[31] both also
directed Tabuena to pay immediately the Philippine National Construction involving the crime of malversation, the accused therein were acquitted
Corporation, thru this office, the sum of FIFTY FIVE MILLION...., and that after the Court arrived at a similar finding of non-proof of conspiracy. In
was what Tabuena precisely did when he delivered the money to Mrs. Acebedo, therein accused, as municipal president of Palo, Leyte, was
Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the prosecuted for and found guilty by the lower court of malversation after
President inasmuch as Mrs. Gimenez was Marcos secretary then. being unable to turn over certain amounts to the then justice of the peace.
Furthermore, Tabuena had reasonable ground to believe that the It appeared, however, that said amounts were actually collected by his
President was entitled to receive the P55 Million since he was certainly secretary Crisanto Urbina. The Court reversed Acebedos conviction after
aware that Marcos, as Chief Executive, exercised supervision and control finding that the sums were converted by his secretary Urbina without the
over government agencies. And the good faith of Tabuena in having knowledge and participation of Acebedo. The Court said, which we herein
delivered the money to the Presidents office (thru Mrs. Gimenez), in strict adopt:
compliance with the MARCOS Memorandum, was not at all affected even

163
No conspiracy between the appellant and his secretary has been shown in bears the signature of the President himself, the highest official of the
this case, nor did such conspiracy appear in the case against Urbina. No land. It carries with it the presumption that it was regularly issued. And on
guilty knowledge of the theft committed by the secretary was shown on its face, the memorandum is patently lawful for no law makes the payment
the part of the appellant in this case, nor does it appear that he in any way of an obligation illegal. This fact, coupled with the urgent tenor for its
participated in the fruits of the crime. If the secretary stole the money in execution constrains one to act swiftly without question. Obedientia est
question without the knowledge or consent of the appellant and without legis essentia. Besides, the case could not be detached from the realities
negligence on his part, then certainly the latter can not be convicted of then prevailing. As aptly observed by Mr. Justice Cruz in his dissenting
embezzling the same money or any part thereof.[32] opinion:

In Ang, accused-petitioner, as MWSS bill collector, allowed part of his We reject history in arbitrarily assuming that the people were free during
collection to be converted into checks drawn in the name of one Marshall the era and that the judiciary was independent and fearless. We know it
Lu, a non-customer of MWSS, but the checks were subsequently was not; even the Supreme Court at that time was not free. This is an
dishonored. Ang was acquitted by this Court after giving credence to his undeniable fact that we can not just blink away. Insisting on the contrary
assertion that the conversion of his collections into checks were thru the would only make our sincerity suspect and even provoke scorn for what
machinations of one Lazaro Guinto, another MWSS collector more senior can only be described as our incredible credulity.[34]
to him. And we also adopt the Courts observation therein, that:
But what appears to be a more compelling reason for their acquittal is the
The petitioners alleged negligence in allowing the senior collector to violation of the accuseds basic constitutional right to due process. Respect
convert cash collections into checks may be proof of poor judgment or too for the Constitution, to borrow once again Mr. Justice Cruzs words, is more
trusting a nature insofar as a superior officer is concerned but there must important than securing a conviction based on a violation of the rights of
be stronger evidence to show fraud, malice, or other indicia of the accused.[35] While going over the records, we were struck by the way
deliberateness in the conspiracy cooked up with Marshall Lu. The the Sandiganbayan actively took part in the questioning of a defense
prosecution failed to show that the petitioner was privy to the witness and of the accused themselves. Tabuena and Peralta may not have
conspirational scheme. Much less is there any proof that he profited from raised this as an error, there is nevertheless no impediment for us to
the questioned acts. Any suspicions of conspiracy, no matter how sincerely consider such matter as additional basis for a reversal since the settled
and strongly felt by the MWSS, must be converted into evidence before doctrine is that an appeal throws the whole case open to review, and it
conviction beyond reasonable doubt may be imposed.[33] becomes the duty of the appellate court to correct such errors as may be
found in the judgment appealed from whether they are made the subject
The principles underlying all that has been said above in exculpation of of assignments of error or not.[36]
Tabuena equally apply to Peralta in relation to the P5 Million for which he
is being held accountable, i.e., he acted in good faith when he, upon the Simply consider the volume of questions hurled by the Sandiganbayan. At
directive of Tabuena, helped facilitate the withdrawal of P5 Million of the the taking of the testimony of Francis Monera, then Senior Assistant Vice
P55 Million of the MIAA funds. President and Corporate Comptroller of PNCC, Atty. Andres asked sixteen
(16) questions on direct examination. Prosecutor Viernes only asked six (6)
This is not a sheer case of blind and misguided obedience, but obedience in questions on cross-examination in the course of which the court
good faith of a duly executed order. Indeed, compliance to a patently interjected a total of twenty-seven (27) questions (more than four times
lawful order is rectitude far better than contumacious disobedience. In the Prosecutor Viernes questions and even more than the combined total of
case at bench, the order emanated from the Office of the President and direct and cross-examination questions asked by the counsels). After the

164
defense opted not to conduct any re-direct examination, the court further *AJ AMORES
asked a total of ten (10) questions.[37] The trend intensified during
Tabuenas turn on the witness stand. Questions from the court after *Q This matter of escalation costs, is it not a matter for a conference
Tabuenas cross-examination totalled sixty-seven (67).[38] This is more between the MIA and the PNCC for the determination as to the correct
than five times Prosecutor Viernes questions on cross-examination (14), amount?
and more than double the total of direct examination and cross-
examination questions which is thirty-one (31) [17 direct examination A I agree, your Honor. As far as we are concerned, our billings are what we
questions by Atty. Andres plus 14 cross-examination questions by deemed are valid receivables. And, in fact, we have been following up for
Prosecutor Viernes]. In Peraltas case, the Justices, after his cross- payment.
examination, propounded a total of forty-one (41) questions.[39]
*Q This determination of the escalation costs was it accepted as the
But more importantly, we note that the questions of the court were in the correct figure by MIA?
nature of cross examinations characteristic of confrontation, probing and
insinuation.[40] (The insinuating type was best exemplified in one question A I dont have any document as to the acceptance by MIA, your Honor, but
addressed to Peralta, which will be underscored.) Thus we beg to quote in our company was able to get a document or a letter by Minister Ongpin to
length from the transcripts pertaining to witness Monera, Tabuena and President Marcos, dated January 7, 1985, with a marginal note or approval
Peralta. (Questions from the Court are marked with asterisks and italicized by former President Marcos.
for emphasis.)
*PJ GARCHITORENA
(MONERA)
*Q Basically, the letter of Mr. Ongpin is to what effect?
(As a background, what was elicited from his direct examination is that the
PNCC had receivables from MIAA totalling P102,475,392.35, and although A The subject matter is approval of the supplementary contract and
such receivables were largely billings for escalation, they were nonetheless request for partial deferment of payment for MIA Development Project,
all due and demandable. What follows are the cross-examination of your Honor.
Prosecutor Viernes and the court questions).
*Q It has nothing to do with the implementation of the escalation costs?
CROSS-EXAMINATION BY PROS. VIERNES
A The details show that most of the accounts refer to our escalations, your
Q You admit that as shown by these Exhibits 7 and 7-a, the items here Honor.
represent mostly escalation billings. Were those escalation billings
properly transmitted to MIA authorities? *Q Does that indicate the computation for escalations were already billed
or you do not have any proof of that?
A I dont have the documents right now to show that they were
transmitted, but I have a letter by our President, Mr. Olaguer, dated July 6, A Our subsidiary ledger was based on billings to MIA and this letter of
1988, following up for payment of the balance of our receivables from Minister Ongpin appears to have confirmed our billings to MIA, your
MIA, sir. Honor.

165
*AJ AMORES A The P102 million was as of December 31, 1985, your Honor, but the
balances is as of August 1987.
*Q Were there partial payments made by MIA on these escalation billings?
*Q We are talking now about the P44 million, more or less, by which the
A Based on records available as of today, the P102 million was reduced to basic account has been reduced. These reductions, whether by adjustment
about P56.7 million, if my recollection is correct, your Honor. or assignment or actual delivery of cash, were made after December 31,
1985?
*PJ GARCHITORENA
WITNESS
*Q Were the payments made before or after February 1986, since Mr.
Olaguer is a new entrant to your company? A Yes, your Honor.

WITNESS *Q And your records indicate when these adjustments and payments were
made?
A The payments were made after December 31, 1985 but I think the
payments were made before the entry of our President, your Honor. A Yes, your Honor.
Actually, the payment was in the form of: assignments to State Investment
of about P23 million; and then there was P17.8 million application against *AJ AMORES
advances made or formerly given; and there were payments to PNCC of
about P2.6 million and there was a payment for application on withholding *Q You said there were partial payments before of these escalation
and contractual stock of about P1 million; that summed up to P44.4 million billings. Do we get it from you that there was an admission of these
all in all. And you deduct that from the P102 million, the remaining balance escalation costs as computed by you by MIA, since there was already
would be about P57 million. partial payments?

*PJ GARCHITORENA A Yes, your Honor.

*Q What you are saying is that, for all the payments made on this P102 *Q How were these payments made before February 1986, in case or
million, only P2 million had been payments in cash? check, if there were payments made?

A Yes, your Honor. A The P44 million payments was in the form of assignments, your Honor.

*Q The rest had been adjustments of accounts, assignments of accounts, *PJ GARCHITORENA
or offsetting of accounts?
*Q The question of the Court is, before December 31, 1985, were there
A Yes, your Honor. any liquidations made by MIA against these escalation billings?

*Q This is as of December 31, 1985? A I have not reviewed the details of the record, your Honor. But the ledger
card indicates that there were collections on page 2 of the Exhibit earlier

166
presented. It will indicate that there were collections shown by credits *Q After December 31, 1985?
indicated on the credit side of the ledger.
A Yes, your Honor.
*AJ AMORES
*Q And they have liquidated that, as you described it, by way of
*Q Your ledger does not indicate the manner of giving credit to the MIA assignments, adjustments, by offsets and by P2 million of cash payment?
with respect to the escalation billings. Was the payment in cash or just
credit of some sort before December 31, 1985? A Yes, your Honor.

A Before December 31, 1985, the reference of the ledger are official *AJ AMORES
receipts and I suppose these were payments in cash, your Honor.
*Q Your standard operating procedure before December 31, 1985 in
*Q Do you know how the manner of this payment in cash was made by connection with or in case of cash payment, was the payment in cash or
MIA? check?

A I do not know, your Honor. A I would venture to say it was by check, your Honor.

*PJ GARCHITORENA *Q Which is the safest way to do it?

*Q But your records will indicate that? A Yes, your Honor.

A The records will indicate that, your Honor. *PJ GARCHITORENA

*Q Except that you were not asked to bring them? *Q And the business way?

A Yes, your Honor. A Yes, your Honor.

*Q At all events, we are talking of settlement or partial liquidation prior to PJ GARCHITORENA


December 31, 1985?
Continue.
A Yes, your Honor.
PROS VIERNES
*PJ GARCHITORENA
Q You mentioned earlier about the letter of former Minister Ongpin to the
*Q Subsequent thereto, we are talking merely of about P44 million? former President Marcos, did you say that that letter concurs with the
escalation billings reflected in Exhibits 7 and 7-a?
A Yes, your Honor, as subsequent settlements.
WITNESS

167
A The Company or the management is of the opinion that this letter, a A Yes, sir.
copy of which we were able to get, is a confirmation of the acceptance of
our billings, sir. Q In 1986, from your records as appearing in Exhibit 7-a, there were no
payments made to PNCC by MIA for the months of January to June 1986?
Q This letter of Minister Ongpin is dated January 7, 1985, whereas the
entries of escalation billings as appearing in Exhibit 7 are dated June 30, A Yes, sir.
1985, would you still insist that the letter of January 1985 confirms the
escalation billings as of June 1985? Q And neither was the amount of P22 million remitted to PNCC by MIA?

A The entries started June 30 in the ledger card. And as of December 31, A Yes, sir.
1985, it stood at P102 million after payments were made as shown on the
credit side of the ledger. I suppose hat the earlier amount, before the PROS VIERNES
payment was made, was bigger and therefore I would venture to say that
the letter of January 7, 1985 contains an amount that is part of the original That will be all, your Honor.
contract account. What are indicated in the ledger are escalation billings.
PJ GARCHITORENA
*PJ GARCHITORENA
Redirect?
*Q We are talking about the letter of Minister Ongpin?
ATTY ANDRES
A The letter of Minister Ongpin refers to escalation billings, sir.
No redirect, your Honor.
*Q As of what date?
*PJ GARCHITORENA
A The letter is dated January 7, 1985, your Honor.
Questions from the Court.
PJ GARCHITORENA
*AJ AMORES
Continue.
*Q From your records, for the month of January 1986, there was no
PROS. VIERNES payment of this escalation account by MIA?

Q In accordance with this letter marked Exhibit 7 and 7-a, there were WITNESS
credits made in favor of MIA in July and November until December 1985.
These were properly credited to the account of MIA? A Yes, your Honor. But on page 2 of Exhibit 7 there appears an assignment
of P23 million, that was on September 25, 1986.
WITNESS

168
*Q But that is already under the present administration? *Q Is there a payback agreement?

A After February 1986, your Honor. A I have a copy of the assignment to State Investment but I have not yet
reviewed the same, your Honor.
*Q But before February, in January 1986, there was no payment
whatsoever by MIA to PNCC? *AJ AMORES

A Per record there is none appearing, your Honor. *Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?

*PJ GARCHITORENA A There is still a balance of receivables from MIA as evidenced by a


collection letter by our President dated July 6, 1988, your Honor. The
*Q The earliest payment, whether by delivery of cash equivalent or of amount indicated in the letter is P55 million.
adjustment of account, or by assignment, or by offsets, when did these
payments begin? PJ GARCHITORENA

A Per ledger card, there were payments in 1985, prior to December 31, Any clarifications you would like to make Mr. Estebal?
1985, your Honor.
ATTY ESTEBAL
*Q After December 31, 1985?
None, your Honor.
A There appears also P23 million as credit, that is a form of settlement,
your Honor. PJ GARCHITORENA

*Q This is as of September 25? Mr. Viernes?

A Yes, your Honor. There were subsequent settlements. P23 million is just PROS VIERNES
part of the P44 million.
No more, your Honor.
*Q And what you are saying is that, PNCC passed the account to State
Investment. In other words, State Investment bought the credit of MIA? PJ GARCHITORENA

A Yes, your Honor. The witness is excused. Thank you very much Mr. Monera. x x x.[41]

*Q And the amount of credit or receivables sold by PNCC to State (TABUENA)


Investment is P23 million?
(In his direct examination, he testified that he caused the preparation of
A Yes, your Honor. the checks totalling P55 Million pursuant to the MARCOS Memorandum
and that he thereafter delivered said amount in cash on the three (3) dates

169
as alleged in the information to Marcos private secretary Mrs. Jimenez at
her office at Aguado Street, who thereafter issued a receipt. Tabuena also A January 31st, your Honor.
denied having used the money for his own personal use.)
PJ GARCHITORENA
CROSS-EXAMINATION BY PROS. VIERNES
Continue.
Q The amount of P55 million as covered by the three (3) checks Mr.
Tabuena, were delivered on how many occasions? PROS VIERNES

A Three times, sir. Q You did not go to Malacaang on January 30, 1986?

Q And so, on the first two deliveries, you did not ask for a receipt from A Yes, sir, I did not.
Mrs. Gimenez?
Q Do you know at whose instance this Exhibit 3 was prepared?
A Yes, sir.
A I asked for it, sir.
Q It was only on January 30, 1986 that this receipt Exhibit 3 was issued by
Mrs. Gimenez? Q You asked for it on January 31, 1986 when you made the last delivery?

A Yes, sir. A Yes, sir.

*PJ GARCHITORENA Q Did you see this Exhibit 3 prepared in the Office of Mrs. Gimenez?

*Q So January 30 is the date of the last delivery? A Yes, sir.

A I remember it was on the 31st of January, your Honor. What happened is Q This receipt was typewritten in Malacaang stationery. Did you see who
that, I did not notice the date placed by Mrs. Gimenez. typed this receipt?

*Q Are you telling us that this Exhibit 3 was incorrectly dated? A No, sir. What happened is that, she went to her room and when she
came out she gave me that receipt.
A Yes, your Honor.
*PJ GARCHITORENA
*Q Because the third delivery was on January 31st and yet the receipt was
dated January 30? *Q What you are saying is, you do not know who typed that receipt?

A Yes, your Honor. WITNESS

*Q When was Exhibit 3 delivered actually by Mrs. Gimenez? A Yes, your Honor.

170
*Q Are you making an assumption that she typed that receipt? A Because I know her signature, your Honor. I have been receiving letters
from her also and when she requests for something from me. Her writing is
A Yes, your Honor, because she knows how to type. familiar to me.

*Q Your assumption is that she typed it herself? *Q So, when the Presiding Justice asked you as to how you knew that this
was the signature of Mrs. Gimenez and you answered that you saw Mrs.
A Yes, your Honor. Gimenez signed it, you were not exactly truthful?

PJ GARCHITORENA A What I mean is, I did not see her sign because she went to her room and
when she came out, she gave me that receipt, your Honor.
Proceed.
PJ GARCHITORENA
PROS. VIERNES
That is why you have to wait for the question to be finished and listen to it
Q This receipt was prepared on January 31, although it is dated January carefully. Because when I asked you, you said you saw her signed it. Be
30? careful Mr. Tabuena.

A Yes, sir, because I was there on January 31st. WITNESS

Q In what particular place did Mrs. Gimenez sign this Exhibit 3? Yes, your Honor.

A In her office at Aguado, sir. PJ GARCHITORENA

Q Did you actually see Mrs. Gimenez signing this receipt Exhibit 3? Continue.

A No, sir, I did not. She was inside her room. PROS VIERNES

Q So, she was in her room and when she came out of the room, she Q Was there another person inside the office of Mrs. Gimenez when she
handed this receipt to you already typed and signed? gave you this receipt Exhibit 3?

A Yes, sir. A Nobody, sir.

*AJ HERMOSISIMA Q I noticed in this receipt that the last delivery of the sum of P55 million
was made on January 30. Do we understand from you that this date
*Q So, how did you know this was the signature of Mrs. Gimenez? January 30 is erroneous?

WITNESS

171
A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This We are adopting the testimony of Mr. Tabuena and we will also present
should be January 31st, sir. the accused, your Honor.

PROS VIERNES *AJ DEL ROSARIO

That will be all, your Honor. *Q From whom did you receive the Presidents memorandum marked
Exhibit 1? Or more precisely, who handed you this memorandum?
PJ GARCHITORENA
A Mrs. Fe Roa Gimenez, your Honor.
Redirect?
*Q Did you ask Mrs. Fe Gimenez for what purpose the money was being
ATTY. ANDRES asked?

No redirect, your Honor. A The money was in payment for the debt of the MIA Authority to PNCC,
your Honor.
*PJ GARCHITORENA
*Q If it was for the payment of such obligation why was there no voucher
Questions from the Court. prepared to cover such payment? In other words, why was the delivery of
the money not covered by any voucher?Calrky
*AJ HERMOSISIMA
A The instruction to me was to give it to the Office of the President, your
*Q Why did you not ask for a receipt on the first and second deliveries? Honor.

A Because I know that the delivery was not complete yet, your Honor. *PJ GARCHITORENA

*PJ GARCHITORENA *Q Be that as it may, why was there no voucher to cover this particular
disbursement?
*Q So you know that the total amount to be delivered was P55 million?
A I was just told to bring it to the Office of the President, your Honor.
A Yes, your Honor.
*AJ DEL ROSARIO
PJ GARCHITORENA
*Q Was that normal procedure for you to pay in cash to the Office of the
Response by Mr. Peralta to the testimony of Mr. Tabuena. President for obligations of the MIAA in payment of its obligation to
another entity?
ATTY. ESTEBAL
WITNESS

172
A No, your Honor, I was just following the Order to me of the President. *AJ DEL ROSARIO

*PJ GARCHITORENA *Q And what did you say in this discussion you had with him?

*Q So the Order was out of the ordinary? A I just said, Yes, sir, I will do it/

A Yes, your Honor. *Q Were you the one who asked for a memorandum to be signed by him?

*AJ DEL ROSARIO A No, your Honor.

*Q Did you file any written protest with the manner with which such *Q After receiving that verbal instruction for you to pay MIAAs obligation
payment was being ordered? with PNCC, did you not on your own accord already prepare the necessary
papers and documents for the payment of that obligation?
A No, your Honor.
A He told me verbally in the telephone that the Order for the payment of
*Q Why not? that obligation is forthcoming, your Honor. I will receive it.

A Because with that instruction of the President to me, I followed, your *Q Is this the first time you received such a memorandum from the
Honor. President?

*Q Before receiving this memorandum Exhibit 1, did the former President A Yes, your Honor.
Marcos discuss this matter with you?
*Q And was that the last time also that you received such a memorandum?
A Yes, your Honor.
A Yes, your Honor.
*Q When was that?
*Q Did you not inquire, if not from the President, at least from Mrs.
A He called me up earlier, a week before that, that he wants to me pay Gimenez why this procedure has to be followed instead of the regular
what I owe the PNCC directly to his office in cash, your Honor. procedure?

*PJ GARCHITORENA A: No, sir.

*Q By I OWE, you mean the MIAA? *AJ DEL ROSARIO

WITNESS *Q Why did you not ask?

A Yes, your Honor. A I was just ordered to do this thing, your Honor.

173
*AJ HERMOSISIMA WITNESS

*Q You said there was an I OWE YOU? A I was just basing it from the Order of Malacaang to pay PNCC through
the Office of the President, your Honor.
A Yes, your Honor.
*Q Do you know the President or Chairman of the Board of PNCC?
*Q Where is that I OWE YOU now?
A Yes, your Honor.
A All I know is that we owe PNCC the amount of P99.1 million, your Honor.
MIAA owes PNCC that amount. *Q How was the obligation of MIAA to PNCC incurred. Was it through the
President or Chairman of the Board?
*Q Was this payment covered by receipt from the PNCC?
A PNCC was the one that constructed the MIA, your Honor.
A It was not covered, your Honor.
*Q Was the obligation incurred through the President or Chairman of the
*Q So the obligation of MIAA to PNCC was not, for the record, cancelled by Board or President of the PNCC? In other words, who signed the contract
virtue of that payment? between PNCC and MIAA?

A Based on the order to me by the former President Marcos ordering me A Actually, we inherited this obligation, your Honor. The one who signed
to pay that amount to his office and then the mechanics will come after, for this was the former Director of BAT which is General Singzon. Then
your Honor. when the MIA Authority was formed, all the obligations of BAT were
transferred to MIAA. So the accountabilities of BAT were transferred to
*Q Is the PNCC a private corporation or government entity? MIAA and we are the ones that are going to pay, your Honor.

A I think it is partly government, your Honor. *Q Why did you agree to pay to Malacaang when your obligation was with
the PNCC?
*PJ GARCHITORENA
A I was ordered by the President to do that, your Honor.
*Q That is the former CDCP?