ARTICLE 11 JUSTIFYING CIRCUMSTANCES

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, v.

DAVID MANINGDING, defendant-appellant
G.R. No. 195665, September 14, 2011

DECISION

VELASCO, JR., J.:

The Case

This is an appeal from the June 25, 2010 Decision1 of the Court of Appeals (CA) in CA-G.R.
CR-H.C. No. 03854, which affirmed the January 29, 2009 Decision2 in Criminal Case No. 2006-
0688-D of the Regional Trial Court (RTC), Branch 44 in Dagupan City. The RTC convicted
accused David Maningding of murder.

The Facts

The charge against accused stemmed from the following Information dated November 7, 2006:

That on September 13, 2006 at around 10:25 o'clock in the evening in Brgy. Anolid, Mangaldan,
Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused while armed with a bladed weapon, with intent to kill and with treachery, did then and
there, willfully, unlawfully and feloniously attack, stab and hit MARLON MUYALDE, inflicting
upon him a stab wound on the vital part of his body, causing his untimely death, to the damage
and prejudice of his heirs.

Contrary to law.3
On December 11, 2006, the arraignment was conducted and the accused pleaded not guilty to the
offense charged. A mandatory pre-trial conference was conducted. Thereafter, the RTC
proceeded with the accused's trial.

During the trial, the prosecution offered in evidence the testimonies of Aladino Jorge (Aladino),
the owner of the sari-sari store; Dr. Virgilio De Guzman (Dr. De Guzman), the physician who
conducted the autopsy upon the cadaver of the victim, Marlon Muyalde (Marlon); Rommel
Muyalde (Rommel), the brother of the victim; and Gloria Muyalde (Gloria), the wife of the
victim. On the other hand, the defense only presented the accused as its witness.

The Prosecution's Version of Facts

The prosecution presented Aladino as its first witness. Aladino is a pensioner who owns and
operates a sari-sari store in Barangay Anolid, Mangaldan, Pangasinan, where he has been
residing for more than a year when the crime happened.4In addition to selling junk foods, candies
and soft drinks in his sari-sari store, Aladino also operates a videoke to augment his income as a
vendor. He testified that on September 13, 2006, at about 10:25 in the evening, while he was
tending to his sari-sari store, he noticed brothers Rommel and Marlon conversing with each
other, while seated on a bench beside his store. While this was transpiring, the accused arrived.
The victim, Marlon, stood up and greeted the accused, who happened to be his brother-in-law,
"good evening."5 He stated that the accused kept quiet and suddenly raised the right hand of
Marlon and stabbed him by the armpit with a knife that he was carrying.6 Marlon shouted
because of the pain, which caused the people in the neighborhood to come out. At this instance,
the accused ran away. Aladino testified that he was only about one meter away from the
incident's site as it was just right beside his sari-sari store.7 Aladino executed a sworn statement
before the police of Mangaldan, which he was able to positively identify in court. Aladino was
also able to positively identify the accused in court as the person who stabbed Marlon.8

Dr. De Guzman was presented by the prosecution as its second witness. He testified that Marlon
was brought to him at about 10:30 in the evening on September 13, 2006. At such time, he said
that Marlon was already experiencing shock because of the stab wound, which he had sustained.
Dr. De Guzman stated that while undergoing surgery, Marlon went on cardiopulmonary
arrest.9 He died of hypovolemic shock, mainly because of the massive loss of blood that the
victim experienced.10 Based on his autopsy, the victim had a single stab wound at the edge
intercostal space right at the axillary line that penetrated and lacerated his right diaphragm and
his liver. He testified that almost the entire thickness of the right lobe of the liver was lacerated.
He noted that the injury was so fatal that as a result, the patient would eventually die. Based on
Dr. De Guzman's experience and findings, the depth of the wound is 14 inches, more or less, and
that it could have been caused by a sharp pointed object. Dr. De Guzman also caused the
issuance of Marlon's Death Certificate.11

The prosecution next presented Rommel as its witness. Rommel testified that he is the brother of
the victim12 and the brother-in-law of the accused.13 He stated that on September 13, 2006 at
about 10:25 in the evening, he, the victim and a neighbor, Mandy Molina (Molina), were in front
of Aladino's store, singing with the videoke that the latter is operating.14Thereafter, he and the
victim were still engaged in conversation facing each other when the accused, who is their
brother-in-law, arrived. They both greeted the accused but the latter did not respond. The
accused, which apparently was armed with a knife, suddenly got hold of the victim's right hand,
raised it and made a thrust with his left hand.15 He then pulled the knife and ran away. Molina
caught the victim as he was about to fall down and rushed him to the hospital.16

Finally, the prosecution presented Gloria as witness to establish the civil liability of the accused.
Gloria testified that she is the spouse of the victim.17 She stated that the victim was gainfully
employed as a farmer and at the same time bought and sold bottles.18 As a farmer, he harvested
40 or more sacks of palay every harvest period, which is twice a year; and earned three hundred
pesos (PhP 300) daily from buying and selling bottles.19 Gloria also testified that they incurred
PhP 33,180 as a result of the victim's death.20 She also stated that the she and the victim have
four (4) children21 and that he was 23 years old at the time of his death.22

The Defense's Version of Facts

Accused had a different version for his defense and, hence, a different appreciation of the facts:
He stated that on September 13, 2006 at about 10:25 in the evening, he was on his way home
from carrying passengers with his tricycle when he saw the victim with four other people at the
sari-sari store of Aladino, having a drinking spree.23 He stated that the victim actually called for
him and invited him for a drink, which he refused. According to the accused, the victim then
embraced him by extending his arm to his shoulder. He testified that at this instant, he noticed
that the victim was pulling a knife from his waist with his right hand, which he was able to
grab.24 As he was being embraced by the victim at such time and since they both fell thereafter,
he did not know that he was actually able to stab the victim.25 When he saw blood coming out of
the victim, he ran away out of fear.26 No other witness or evidence was presented by the defense
for its case.

Ruling of the Trial Court

After trial, the RTC convicted the accused. The dispositive portion of its Decision dated January
29, 2009 states:

WHEREFORE, judgment is hereby rendered finding accused DAVID MANINGDING guilty

beyond reasonable doubt of the crime charged and is hereby sentenced to suffer the penalty of
reclusion perpertua and to pay the heirs of the late MARLON MUYALDE, Php50,000.00 as
civil indemnity for the latter's death, Php33,180.00 as actual damages for the burial and expenses
incurred during the wake of the victim and Php100,000.00 as moral damages.

SO ORDERED.27

In deciding for the prosecution and convicting the accused of the crime charged, the RTC gave
credence to the testimonies of the prosecution's eyewitnesses, Rommel and Aladino.28 The RTC
also held that the accused's flight negated his claim of self-defense. Finally, his allegation that
the victim was drunk at the time of the incident was not supported by any other evidence.
Contrarily, the Medical Certificate of the victim is silent as to any presence of alcohol.

The RTC found that treachery attended the stabbing of the victim, being sudden and
unexpected.29 The RTC also explained that the facts indicate no showing that there was any
altercation between the accused and the victim immediately prior to the stabbing that could have
warned the latter of the said ensuing incident.30

Ruling of the Appellate Court

The accused appealed the Decision of the RTC, reiterating his argument of self-defense. On June
25, 2010, the CA affirmed the judgment of the trial court. The dispositive portion of the CA
Decision reads:

WHEREFORE, the Decision dated 29 January 2009 of the Regional Trial Court of Dagupan
City, Branch 44 is hereby AFFIRMED in toto.

SO ORDERED.31

In affirming the decision of the RTC, the CA held that it was not in any way persuaded by
the appeal of the accused and his claim of self-defense.32 The CA emphasized that the
element of unlawful aggression is wanting in the present case. The CA likewise affirmed the
existence of treachery.

Hence, We have this appeal.

The Issues
The appeal seeks to determine whether the RTC erred in convicting accused-appellant of the
crime charged. Particularly, accused-appellant maintains that the stabbing of the victim is
justified by self-defense.

The Court's Ruling

We sustain the conviction of accused-appellant.

The factual determination of the RTC

should be afforded full faith and credit

We have held in People v. Gabrino33 that the factual determination of the RTC should not be
disturbed unless there is a showing of misinterpretation of materials facts or that it is tainted with
grave abuse of discretion:

We have held time and again that "the trial court's assessment of the credibility of a witness
is entitled to great weight, sometimes even with finality." As We have reiterated in the very
recent case of People v. Jose Pepito Combate, where there is no showing that the trial court
overlooked or misinterpreted some material facts or that it gravely abused its discretion,
then We do not disturb and interfere with its assessment of the facts and the credibility of
the witnesses. This is clearly because the judge in the trial court was the one who personally
heard the accused and the witnesses, and observed their demeanor as well as the manner in
which they testified during trial. Accordingly, the trial court, or more particularly, the RTC in
this case, is in a better position to assess and weigh the evidence presented during trial.

In the present case, in giving weight to the prosecution's testimonies, there is not a slight
indication that the RTC acted with grave abuse of discretion, or that it overlooked any material
fact. In fact, no allegation to that effect ever came from the defense. There is therefore no reason
to disturb the findings of fact made by the RTC and its assessment of the credibility of the
witnesses. To reiterate this time-honored doctrine and well-entrenched principle, We quote from
People v. Robert Dinglasan, thus:

In the matter of credibility of witnesses, we reiterate the familiar and well-entrenched rule that
the factual findings of the trial court should be respected. The judge a quo was in a better
position to pass judgment on the credibility of witnesses, having personally heard them when
they testified and observed their deportment and manner of testifying. It is doctrinally settled that
the evaluation of the testimony of the witnesses by the trial court is received on appeal with the
highest respect, because it had the direct opportunity to observe the witnesses on the stand and
detect if they were telling the truth. This assessment is binding upon the appellate court in the
absence of a clear showing that it was reached arbitrarily or that the trial court had plainly
overlooked certain facts of substance or value that if considered might affect the result of the
case. (Emphasis Ours.)

In this case, We see no reason to disturb the factual findings of the RTC as affirmed by the CA.
Neither a misinterpretation of the material facts nor a grave abuse of discretion on the part of the
RTC is existent or apparent from the facts of the case.

Self-defense does not exist in the present case

Preliminarily, it is a settled rule that when an accused claims the justifying circumstance of self-
defense, an accused admits the commission of the act of killing. The burden of evidence,
therefore, shifts to the accused's side in clearly and convincingly proving that the elements of
self-defense exist that could justify the accused's act.34 In this case, considering that at the outset,
accused-appellant has already maintained a claim of self-defense, the burden of evidence rests
upon him in proving his act of stabbing as justifiable under the circumstances.

According to Article 11 of the Revised Penal Code, "any person who acts in defense of his
person or rights" do not incur any criminal liability provided that the following requisites concur:
(1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it;
and (3) lack of sufficient provocation on the part of the person defending himself. Conversely,
the accused must be able to establish that all three circumstances concur in order for the
accused's act to be justified under the law.

Particularly, in the case of unlawful aggression, People v. Gabrino, following the ruling in
People v. Manulit,35 explained, thus:

Unlawful aggression is defined as an actual physical assault, or at least a threat to inflict real
imminent injury, upon a person. In case of threat, it must be offensive and strong, positively
showing the wrongful intent to cause injury. It presupposes actual, sudden, unexpected or
imminent danger--not merely threatening and intimidating action. It is present only when the one
attacked faces real and immediate threat to one's life.36

In this case, the records would show that accused-appellant was clearly not able to establish the
aforementioned requisites. Worse, his sole evidence--his own testimony--was found by the RTC
to be so weak and devoid of any credibility as against those presented by the prosecution. From
the facts of the present case, the RTC gave credence and weight to the evidence presented by the
prosecution, whose testimonies rule out accused-appellant's claim of self-defense. As earlier
explicated, We do not disturb or interfere with the findings of fact of the RTC unless there is a
clear showing of mistake or a grave abuse of discretion. From the testimonies of Rommel and
Aladino, there was no unlawful aggression on the part of the victim. If there was any, it came
from accused-appellant himself for having unsuspectingly attacked the victim, who was
peacefully engaged in a conversation with Rommel during the stabbing incident.

Treachery exists in the present case

In People v. Dela Cruz, this Court discussed that in order for an accused to be convicted of
murder, the following elements must concur:

1. That a person was killed.

2. That the accused killed him.
3. That the killing was attended by any of the qualifying circumstances mentioned in Art. 248.

4. The killing is not parricide or infanticide.37

Moreover, Art. 248 of the Code states that "[a]ny person who, not falling within the provisions of
Article 246, shall kill another, shall be guilty of murder and shall be punished by reclusion
perpetua, to death if committed with x x x treachery."38 There is treachery when "the offender
commits any of the crimes against persons, employing means, methods, or forms in the
execution, which tend directly and specially to insure its execution, without risk to the offender
arising from the defense which the offended party might make."39 These means or methods are
made in the form of a swift, deliberate and unexpected attack, without any warning and affording
the victim, which is usually unarmed and unsuspecting, no chance at all to resist or escape the
impending attack.40

In this case, it is undisputed that it was accused-appellant who stabbed and killed the victim,
which is neither a crime of parricide nor infanticide. We are, therefore, left with the issue of
whether there was treachery in the attack. Going over the records of the case, We are convinced
that, indeed, treachery was employed and present in the stabbing by accused-appellant of the
victim, which led to the latter's ultimate death.

We look into the testimonies of Aladino and Rommel, which established the existence of
treachery:

Testimony of Aladino Jorge:

Q: You said that Rommel and Marlon were having conversation, where, in what particular
portion of your store were they having conversation?

A: Beside my store, they were seated on a bench.

Q: Will you describe to us how they were seated at the time?

A: They were facing each other and in-between them is a table.

Q: And while Marlon and Rommel were having conversation, what transpired next if any?

A: David Maningding suddenly arrived.

xxxx

Q: And when David Maningding arrived, what did he do if any?

A: The brother-in-law paid respect to David Maningding by greeting him "good evening."

Q: Who is that brother-in-law who gave his respect to David Maningding by saying "good
evening?"

A: Marlon Muyalde, sir.

Q: When Marlon Muyalde said "good [e]vening" to David Maningding who just arrived, where
was Marlon Muyalde at the time?

A: He was already standing.

Q: About Marlon's brother Rommer, where was he when Marlon said "good evening" to David
Maningding?

A: They were still at the same place, both of them.

Q: When Marlon said "good evening" to David Maningding, how far was [he] from David
Maningding?

A: Very near, but David Maningding did not answer.

Q: When Marlon Muyalde was already standing, what transpired next if any?

A: When Marlon Muyalde was already standing David Maningding raised the right hand
of Marlon and instantly stabbed his armpit.
xxxx

Q: What happened to Marlon Muyalde after being stabbed by David Maningding?

A: Marlon shouted because of pain causing people to come out, then David Maningding ran
away.
Q: You said earlier that there was no ex[c]hange of words between David Maningding and
Marlon Muyalde before the stabbing incident because according to you David Maningding did
not reply to the show of respect of Marlon Muyalde, correct?

A: Yes, sir.

Q: For how long did David Maningding [raise] the hand of Marlon after he arrived.

A: About five (5) minutes after he arrived.

Q: And during the period of five (5) minutes after he arrived there was no exchange of
words according to you between Marlon Muyalde and David Maningding?

A: None, sir.

Q: [How] [a]bout between Rommel Muyalde and David Maningding?

A: The same.

Q: It was Rommel Muyalde who greeted David Maningding "good evening," what about Marlon
Muyalde, did he say any word?

A: The same greeting.

Q: What about you, was there exchange of words between you, Marlon and Rommel and David
Maningding, you mean to say nothing happened within that five (5) minutes period before
the stabbing?

A: No more, only the stabbing.

Q: Can you tell us how many seconds or minutes did it take David Maningding to stab Marlon
Muyalde?

A: Less than one (1) minute most likely.41 (Emphasis Ours.)

Testimony of Rommel Muyalde:

Q: While you and your brother were having conversation, can you recall what was your position?

A: We were already sitting facing with each other.

Q: While you were on that position, what happen [sic] next, if any?

A: When we were having conversation at that time my brother-in-law arrived.

Q: What is the name of that brother-in-law of yours who arrived
A: David Maningding, sir.

Q: You are referring to the accused in this case?

A: Yes, sir.
Q: And what happen[ed] next after your brother-in-law David Maningding arrived?

A: When he arrived I paid my respect saying "good evening Kuya" but he did not answer and
also my older brother greeted him but he did not answer also.

Q: And what transpire[d], if any?

A: After my brother greeted him good evening kuya and he did not answer, what he did he
got hold of the right hand of my brother, raised it and then he made a thrust using his left
hand.42

xxxx

Q: You mean to say that after your brother greeted your brother-in-law there was no response
from David Maningding?

A: No more, sir.

Q: And for how long did it take after your Kuya Marlon had greeted David Maningding when
the latter raised his right hand and stabbed his lower right armpit?

A: One or two minutes because after my brother Marlon greeted him, good evening Kuya, my
brother-in-law David Maningding immediately raised his right hand, stabbed him then removed
the knife and ran away, sir.

xxxx
Q: But before David Maningding stood up he was seated?

A: When he arrived I greeted him then he sat when my brother Marlon greeted him but David
Maningding did not [respond] and he stood up.

Q: How many minutes did he sit before he stood up?

A: Two (2) minutes, sir.

Q: Did you not have any conversation before he stood up?

A: None, we did not. We just greeted him. There was no conversation between us because
when he arrived I paid respect to him but when it was the turn of my brother to [pay]
respect he stood up and that was the time he stabbed him.43

From the testimonies of Aladino and Rommel, it cannot be gainsaid that accused-appellant
without any warning or suspicion, and taking advantage of the circumstances, immediately
attacked the victim. The victim did not have any suspicion that could have alerted him of the
impending attack. As clearly demonstrated in the trial court, the attack was swift and unexpected,
even to the eyewitnesses, Aladino and Rommel. We, therefore, agree with the RTC's ruling and
finding, and We find no reason to veer away from them.

Accused-appellant is liable for damages and interest

Under Art. 248 of the Revised Penal Code, the penalty for the crime of murder is reclusion
perpetua to death. In this case, the RTC was correct in imposing the lesser penalty of reclusion
perpetua, as there existed neither aggravating nor mitigating circumstances.44

Corollarily, in People v. Combate, We ruled that "when the circumstances surrounding the crime
call for the imposition of reclusion perpetua only, the Court has ruled that the proper amounts
should be PhP 50,000.00 as civil indemnity, PhP 50,000.00 as moral damages, and PhP
30,000.00 as exemplary damages."45

Following the aforementioned jurisprudence, We, therefore, reduce from PhP 100,000 to PhP
50,000 the amount of moral damages awarded by the RTC to the heirs of the victim but impose
the additional penalty of exemplary damages. To summarize, the following shall be assessed
against accused-appellant: PhP 50,000 in civil indemnity, PhP 50,000 in moral damages, and
PhP 30,000 in exemplary damages, with an interest of six percent (6%) per annum from finality
of judgment until paid.46 Furthermore, We note the actual damages awarded by the RTC
amounting to PhP 33,180.

WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CR-H.C. No. 03854
finding accused-appellant David Maningding guilty of the crime of murder is AFFIRMED with
modification. As thus modified, the ruling of the trial court should read as follows:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered finding the accused,

David Maningding, guilty beyond reasonable doubt of the crime of MURDER. The accused is
hereby sentenced to suffer the penalty of RECLUSION PERPETUA and is ordered to indemnify
the heirs of the late Marlon Muyalde the sum of PhP 50,000 as civil indemnity, PhP 50,000 as
moral damages, PhP 30,000 as exemplary damages, PhP 33,180 as actual damages, and interest
on all damages at the rate of six percent (6%) per annum from the finality of judgment until fully
paid.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

DIOSDADO M. PERALTA
Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.*

Associate Justice Associate Justice
 JOSE CATRAL MENDOZA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's
Attestation, I certify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court's Division.

RENATO C. CORONA
Chief Justice

Footnotes:

*
Additional member per Special Order No. 1076 dated September 6, 2011.

[1]
Rollo, pp. 2-8. Penned by Associate Justice Manuel M. Barrios and concurred in by Associate Justices Rosmari D. Carandang and Ramon R.
Garcia.

[2]
CA rollo, pp. 6-12. Penned by Judge Genoveva Coching-Maramba.

[3]
Id. at 6.

[4]
TSN, March 16, 2007, p. 2.

[5]
Id. at 3-5.
[6]
Id. at 6.

[7]
Id. at 7.

[8]
Id. at 7-8.

[9]
TSN, May 21, 2007, p. 5.

[10]
Id. at 6.

[11]
Id. at 5.

[12]
TSN, August 13, 2007, p. 2.

[13]
Id. at 3.

[14]
Id. at 4-5.

[15]
Id. at 5.

[16]
Id. at 6.

[17]
TSN, October 1, 2007, p. 3.

[18]
Id. at 4-5.

[19]
Id. at 5.

[20]
Id. at 6.

[21]
Id.

[22]
Id. at 3.

[23]
TSN October 20, 2008, p. 3.

[24]
Id. at 3-4.

[25]
Id. at 4.

[26]
Id. at 5.

[27]
CA rollo, p. 12.

[28]
Id. at 9.

[29]
Id.
[30]
Id. at 11.

[31]
Rollo, p. 7.

[32]
Id. at 6.

[33]
G.R. No. 189981, March 9, 2011; citing People v. Combate, G.R. No. 189301, December 15, 2010; People v. Agudez, G.R. Nos. 138386-87,
May 20, 2004, 428 SCRA 692, 705; People v. Dinglasan, G.R. No. 101312, January 28, 1997, 267 SCRA 26, 39.

[34]
People v. De Jesus, G.R. No. 186528, January 26, 2011.

[35]
G.R. No. 192581, November 17, 2010, 635 SCRA 426; citing People v. Catbagan, G.R. Nos. 149430-32, February 23, 2004, 423 SCRA 535,
540.

[36]
People v. Gabrino, supra note 33.

[37]
G.R. No. 188353, February 16, 2010, 612 SCRA 738, 746; cited in People v. Gabrino,supra note 33.

[38]
Emphasis Ours.

[39]
People v. Gabrino, supra note 33; citing People v. Dela Cruz, supra note 37; People v. Amazan, G.R. Nos. 136251 & 138606-07, January 16,
2001, 349 SCRA 218, 233 & People v. Bato, G.R. No. 127843, December 15, 2000, 348 SCRA 253, 261.

[40]
Id.; citing People v. Dela Cruz, supra note 37; People v. Albarido, G.R. No. 102367, October 25, 2001, 368 SCRA 194, 208; People v.
Francisco, G.R. No. 130490, June 19, 2000, 333 SCRA 725, 746; People v. Lobino, G.R. No. 123071, October 28, 1999, 317 SCRA 606, 615.

[41]
TSN, March 16, 2007, pp. 5-7 & 16.

[42]
TSN, August 13, 2007, pp. 5-6.

[43]
Id. at 14-15.

[44]
People v. Gabrino, supra note 33.

[45]
G.R. No. 189301, December 15, 2010; cited in People v. Gabrino, supra note 33;People v. Sanchez, G.R. No. 131116, August 27, 1999, 313
SCRA 254.

[46]
Id.

RICARDO BALUNUECO, petitioner, vs

COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents
G.R. No. 126968, April 9, 2003,
 DECISION

BELLOSILLO, J.:

On appeal by certiorari is the Decision[1] of the Court of Appeals affirming with modifications
the decision[2] of the Regional Trial Court of Pasig City, Branch 68, convicting accused
RICARDO BALUNUECO of homicide for the death of Senando Iguico and frustrated homicide
for injuries inflicted upon his wife Amelia Iguico.

Of the five (5) original accused,[3] only petitioner Ricardo, accused Reynaldo, Juanito, all
surnamed Balunueco, and Armando Flores were indicted in two (2) Informations, the first for
homicide[4] and the second for frustrated homicide.[5] Again, of the four (4) indictees, only
Ricardo and Reynaldo were brought to the jurisdiction of the court a quo, while Juanito and
Armando have remained at large. Accused Reynaldo died on 17 November 1986. Accordingly,
as against him, the criminal cases were dismissed. Thus, only the criminal cases against
petitioner Ricardo Balunueco are subject of this appeal.

As principal witness for the prosecution, Amelia Iguico narrated that on 2 May 1982 at around
6:00 o'clock in the evening she was coddling her youngest child in front of her house at Bagong
Tanyag, Taguig, when she saw accused Reynaldo, his father Juanito and brothers Ricardo and
Ramon, all surnamed Balunueco, and one Armando Flores chasing her brother-in-law Servando
Iguico. With the five (5) individuals in hot pursuit, Servando scampered into the safety of
Amelia's house.

Meanwhile, according to private complainant Amelia, her husband Senando, who was then
cooking supper, went out of the house fully unaware of the commotion going on outside. Upon
seeing Senando, Reynaldo turned his attention on him and gave chase. Senando instinctively fled
towards the fields but he was met by Armando who hit him with a stone, causing Senando to feel
dizzy. Reynaldo, Ricardo, and Armando cornered their quarry near a canal and ganged up on
him. Armando placed a can on top of Senando's head and Ricardo repeatedly struck Senando
with an ax on the head, shoulder, and hand. At one point, Ricardo lost his hold on the ax, but
somebody tossed him a bolo and then he continued hacking the victim who fell on his knees. To
shield him from further violence, Amelia put her arms around her husband but it was not enough
to detract Ricardo from his murderous frenzy. Amelia was also hit on the leg.[6]

Dr. Maximo Reyes, NBI Senior Medico-legal officer, declared that on 3 May 1982 he conducted
a post mortem examination on the body of the deceased Senando Iguico and issued an Autopsy
Report, which contained the following findings:[7] (a) two (2) stab wounds and nine (9) gaping
hack wounds; and, (b) cause of death was hemorrhage, acute, profuse, secondary to multiple stab
and hack wounds.

In his defense, accused Ricardo narrated a different version of the incident. He testified that at
that time he was fetching water when he heard somebody shouting: "Saya, saya, tinataga,"
referring to his brother Reynaldo. When he hurried to the place, he saw his brother Ramon
embracing Senando who was continuously hacking Reynaldo. Thereafter, Senando shoved
Ramon to the ground and as if further enraged by the intrusion, he turned his bolo on the fallen
Ramon. Ricardo screamed, "tama na yan, mga kapatid ko 'yan." But the assailant would not be
pacified as he hacked Ramon on the chest. At this point, Servando,[8] the brother of Senando,
threw an axe at him but Reynaldo picked it up and smashed Senando with it.

Manuel Flores, another witness for the defense, gave a substantially similar version of the story.
He testified that on the fateful day of the incident, while doing some carpentry work in front of
his mother's house, he saw Senando Iguico,[9] a.k.a. "Bulldog," with a bolo on hand trailing
brothers Reynaldo alias "Sayas" and Ramon while walking towards Bagong Bantay. Suddenly,
Senando confronted the two (2) brothers and started hacking Reynaldo, hitting him on the head,
arm and stomach. Seeing that his brother was absorbing fatal blows, Ramon embraced Senando
but the latter shoved him (Ramon) and directed his fury at him instead. Ricardo went to the
rescue of his brothers but he too was hacked by Senando.

The trial court disbelieved the version of accused Ricardo, thus he was found guilty of homicide
in Crim. Case No. 49576 and frustrated homicide in Crim. Case No. 49577. It reasoned that the
testimony of Amelia Iguico was clear, positive, straightforward, truthful and convincing. On the
other hand, according to the trial court, the denial of Ricardo was self-serving and calculated to
extricate himself from the predicament he was in. Further, the trial court added that the wounds
allegedly received by Ricardo in the hands of the victim, Senando Iguico, if at all there were any,
did not prove that Senando was the aggressor for the wounds were inflicted while Senando was
in the act of defending himself from the aggression of Ricardo and his co-conspirators.[10]

The Court of Appeals sustained the conviction of accused Ricardo, giving full faith to the direct
and positive testimony of Amelia Iguico who pointed to him as the one who initially axed her
husband Senando on the head, shoulder and hand.[11] While the appellate court upheld the
conviction of Ricardo of homicide for the death of Senando Iguico, it however ruled that his
conviction for the wounding of Amelia Iguico, although likewise upheld, should be for attempted
homicide only. On the wounding of Amelia, the appellate court had this to say - [12]

For while intent to kill was proven, Amelia's hack wound in her left leg was not proven to be
fatal or that it could have produced her death had there been no timely medical attention
provided her, hence, the stage of execution of the felony committed would only be attempted.

Petitioner now imputes errors to the Court of Appeals: (a) in not taking into consideration the
fact that petitioner, if indeed he participated, had acted in defense of relatives; (b) in giving due
credence to the self-serving and baseless testimony of Amelia Iguico, the lone and biased witness
for the prosecution; and, (c) in failing to consider the several serious physical injuries sustained
by petitioner and his brother Reynaldo Balunueco.

In a reprise of his stance at the trial, petitioner argues that assuming he participated in the killing
of Senando, he acted in defense of his full-blood relatives: Reynaldo whom he personally
witnessed being boloed by the deceased in the arms, head and stomach; and Ramon who also
became a victim of the deceased's fury after he was pushed by the deceased and had fallen to the
ground. Under such circumstances, the act of Senando in hacking him after he tried to rescue his
brothers, gave rise to a reasonable necessity for him to use a means to prevent or repel the
unlawful aggression. Considering further that there was lack of sufficient provocation on his
part, his acts were therefore justified under Art. 11, par. (2), of The Revised Penal Code.

In effect, petitioner invokes the justifying circumstance of defense of relatives under Art. 11, par.
(2), of The Revised Penal Code. The essential elements of this justifying circumstance are the
following: (a) unlawful aggression; (b) reasonable necessity of the means employed to prevent or
repel it; and, (c) in case the provocation was given by the person attacked, the one making the
defense had no part therein.
Of the three (3) requisites of defense of relatives, unlawful aggression is a condition sine qua
non, for without it any defense is not possible or justified. In order to consider that an unlawful
aggression was actually committed, it is necessary that an attack or material aggression, an
offensive act positively determining the intent of the aggressor to cause an injury shall have been
made; a mere threatening or intimidating attitude is not sufficient to justify the commission of an
act which is punishable per se, and allow a claim of exemption from liability on the ground that
it was committed in self-defense or defense of a relative. It has always been so recognized in the
decisions of the courts, in accordance with the provisions of the Penal Code.[13]

Having admitted the killing of the victim, petitioner has the burden of proving these elements by
clear and convincing evidence. He must rely on the strength of his own evidence and not on the
weakness of that of the prosecution, for even if the prosecution evidence is weak it cannot be
disbelieved if the accused has admitted the killing.[14]

In the case at bar, petitioner Ricardo utterly failed to adduce sufficient proof of the existence of a
positively strong act of real aggression on the part of the deceased Senando. With the exception
of his self-serving allegations, there is nothing on record that would justify his killing of
Senando.

First, Ricardo's theory that when he reached the crime scene he found Senando repeatedly
hacking his brother Reynaldo who thereafter retaliated by smashing an axe on the victim's head
is implausible in light of the seriousness of the wounds sustained by the deceased as compared to
the minor injuries inflicted upon petitioner and his two (2) brothers. The fact that three (3) of the
assailants suffered non-fatal injuries bolsters the fact that Senando tried vainly to ward off the
assaults of his assailants.

Second, Ricardo failed to present himself to the authorities. He may have accompanied the
injured Reynaldo to the hospital after the encounter but still he failed to present himself to the
authorities and report the matter to them. The natural impulse of any person who has killed
someone in defense of his person or relative is to bring himself to the authorities and try to dispel
any suspicion of guilt that the authorities might have against him. This fact assumes a more
special significance considering that his co-accused, Juanito and Armando, have remained at
large.
Third, petitioner had a rather erratic recollection of people and events. He vividly remembered
how Reynaldo was injured by Senando but conveniently failed to recall the events leading to the
fatal wounding of the deceased. At another point, he testified that Reynaldo axed Senando but
later retracted his statement by declaring that it was in fact Senando who hacked Reynaldo.[15]
We observe that the killing occurred within or near the premises of the deceased. This proves per
adventure the falsity of petitioner's claim that it was Senando, rather than he and his kin, who had
initiated the unlawful aggression.

On the other hand, private complainant pointed to petitioner as one of the principal actors in the
slaying of her husband Senando and the court a quo found her testimony worthy of belief. The
unbending jurisprudence is that findings of trial courts on the matter of credibility of witnesses
are entitled to the highest degree of respect and will not be disturbed on appeal.[16] The lower
court also declared, and we agree, that private complainant's relationship with the deceased does
not disqualify her from testifying in the criminal case involving her relative or automatically
sully her testimony with the stain of bias.

On the injuries sustained by Amelia, we are of the opinion that, contrary to the finding of the
lower court as affirmed by the appellate court, petitioner's homicidal intent has not been
indubitably established. As held in People v. Villanueva,[17] the intent to kill being an essential
element of the offense of frustrated or attempted homicide, said element must be proved by clear
and convincing evidence, and with the same degree of certainty as required of the other elements
of the crime. The inference of intent to kill should not be drawn in the absence of circumstances
sufficient to prove such intent beyond reasonable doubt.

The facts as borne out by the records do not warrant a finding that petitioner intended to kill
Amelia. Contrarily, the circumstances of the instant case indicate the opposite: (a) that while
petitioner was repeatedly assaulting the deceased, Amelia embraced her husband in an attempt to
avert further infliction of pain upon him; and, (b) when he hit Amelia once on the left leg, a
wound of slight nature, he did not do anything more to pursue his homicidal urge[18] but instead
allowed her to scurry away. This set of details reinforces this Court's belief that petitioner had no
intention of killing Amelia but nonetheless wounded her either because she unwittingly exposed
herself in the so-called "line-of-fire" when she embraced her husband, or that it was intended
more to deter her from further interfering. Had killing Amelia actually crossed petitioner's mind,
he would have opted to hit his quarry on the vital portions of her body or strike her several times
more to attain his objective. But these he never did.

Considering that the injuries suffered by Amelia were not necessarily fatal and required a
medical attendance of four (4) days,[19] we hold that the offense committed by petitioner is only
that of slight physical injuries. Under Art. 266, par. (1), of The Revised Penal Code, this is
punishable by arresto menor the duration of which is from one (1) to thirty (30) days.[20]

WHEREFORE, the assailed Decision of the Court of Appeals in Crim. Case No. 49576 finding
petitioner Ricardo Balunueco guilty of Homicide is AFFIRMED, and there being no mitigating
nor aggravating circumstance, petitioner is sentenced to an indeterminate penalty of six (6) years,
two (2) months and ten (10) days of prision mayor minimum, as minimum, to fourteen (14)
years, eight (8) months and twenty (20) days of reclusion temporal medium, as maximum.
Consistent with prevailing jurisprudence, his civil liability to the heirs of Senando Iguico is fixed
at P50,000.00. The assailed Decision in Crim. Case No. 49577 for Attempted Homicide, on the
other hand, is MODIFIED. Petitioner Ricardo Balunueco is found guilty only of Slight Physical
Injuries for the wounding of Amelia Iguico, and is accordingly sentenced to suffer a straight
prison term of ten (10) days of arresto menor, and to pay the costs.

SO ORDERED.

Quisumbing, Austria-Martinez, and Callejo, Sr., JJ., concur.

Footnotes:

[1]
Decision penned by Associate Justice Conchita Carpio Morales, (now with this Court), concurred in by Associate Justices Nathanael P. De
Pano, Jr., and Fermin A. Martin, Jr., First Division, Court of Appeals, CA-G.R. CR No. 13446.

[2]
Decision penned by Judge Willelmo C. Fortun, RTC-Br. 68, Pasig City.

[3]
Ricardo Balunueco (accused-appellant), Reynaldo Sayas Balunueco, Juanito Balunueco, Ramon Balunueco and Armando Flores.

[4]
Docketed as Crim. Case No. 49576.

[5]
Docketed as Crim. Case No. 49577.

[6]
TSN, 12 February 1985, p. 9.
[7]
Exh. C.

[8]
Brother-in-law of the victim Senando Iguico per private complainants testimony.

[9]
Armando Eguico in some parts of the records.

[10]
Rollo, p. 49.

[11]
Id. at 33.

[12]
Id. at 36-37.

[13]
US v. Guy-Sayco, 13 Phil. 292 (1909).

[14]
People v. Emberga, G.R. No. 116616, 26 November 1999, 319 SCRA 304.

[15]
TSN, 24 January 1990, p. 11.

[16]
People v. Mana-ay, G.R. No. 132717, 20 November 2000, 345 SCRA 213.

[17]
51 Phil. 488 (1928).

[18]
TSN, 12 September 1985, p. 45.

[19]
Id. at 11.

[20]
The Revised Penal Code, art. 27.

JOVITO CABUSLAY, petitioner ,vs

PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN, respondents
G.R. No. 129875, September 30, 2005

SECOND DIVISION

DECISION

Tinga, J.:

Assailed in this petition for review[1] under Rule 45 of the 1997 Rules of Civil Procedure is the
Decision[2] dated 25 June 1997 of the Sandiganbayan in Criminal Case No. 19586 finding Jovito
Cabuslay, petitioner herein, guilty beyond reasonable doubt of the crime of homicide and
sentencing him as follows:

WHEREFORE, accused Celso G. Regencia, Rosello Canoy, Nilo Montebon and Gerry Cane are
ACQUITTED on reasonable doubt. Accused Jovito Cabuslay is found GUILTY beyond
reasonable doubt of the crime of 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 (14)
Years, Eight (8) Months and One (1) Day of Reclusion Temporal, as 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 Pesos (P50,000.00) for actual damages and Fifty Thousand Pesos
(P50,000.00) for moral damages, and to pay the costs.

SO ORDERED.[3]

In an Information[4] dated 10 August 1993, petitioner SPO2 Jovito Luna Cabuslay, Senior
Inspector Celso Gomera Regencia, SPO4 Rosello Rodriguez Canoy, C2C Nilo Rico Montebon
and C2C Gerry Orillaneda Cane were charged with murder, committed as follows:

That on or about August 5, 1992, in Kauswagan, Lanao del Norte, Philippines, within the
jurisdiction of this Honorable Court, the said accused, SENIOR INSPECTOR CELSO G.
REGENCIA, SPO4 ROSELLO CANOY, SPO2 JOVITO CABUSLAY, C2C NILO
MONTEBON AND C2C GERRY CANE, all public officers, being then members of the
Philippine National Police assigned at the PNP Provincial Headquarters of Lanao del Norte,
acting in the capacities aforesaid and conspiring, confederating and helping one another, while
manning a mobile checkpoint at Libertad, Kauswagan, Lanao del Norte, thus committing the
offense in relation to office, and with intent to kill, did then and there wilfully, unlawfully,
feloniously and treacherously shoot PAQUITO UMAS-AS, with their firearms, thereby inflicting
mortal wounds upon the latter which caused his instantaneous death.[5]
On arraignment, petitioner and his co-accused all pleaded not guilty. Forthwith, trial ensued with
the prosecution presenting as witnesses Dr. Tammy Uy, Bernabe Purificacion Arenga, Leoncio
Tagapulot Zaragosa and Generoso Caayao Umas-as.

The prosecution presented evidence proving the following as facts:

Paquito Umas-as, 34, was one of the four children of Generoso Umas-as of Bulua, Cagayan de
Oro City. Still single, Paquito earned a living as a collector of payments for assorted articles such
as jackets, mats, thermos and plates that he sold on credit. Paquito collected as much as
P70,000.00 for a period of four months and the net profit of such collections was divided equally
between him and his employer. [6]
In collecting payments, Paquito used a motorcycle he bought on credit from his employer.[7] His
collection brought him to such places as Manticao, Iligan and Kolambogan.[8] He rented a house
in Iligan City but every fifteenth (15th) day of the month, Paquito would go home to his family
to give them a sack of rice.[9]

At around 8:30 in the morning of 5 August 1992, Leoncio Tagapulot Zaragosa, a refrigeration
technician helper and resident of Roosevelt Street, Iligan City, was conversing with Felix
Lauriana[10] near the school building in Lapayan, Libertad, Kauswagan, Lanao del Norte when a
Hammer (Hummer) truck parked in front of them.[11] Four policemen alighted, followed by a
driver. The police thereafter halted the collector who was riding a motorcycle from Lapayan. The
collector was wearing a blue denim jacket with folded sleeves and blue denim pants.[12]

The police asked the collector to show his identification card (ID). The 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, opened fire at the collector whose right hand was then raised. The four
other policemen meanwhile had their firearms pointed at the collector. [13]

Petitioner, who was four meters away from the collector, consumed the 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 vehicle and brought him to Kolambugan.[14] One of the policemen
rode on the collector's motorcycle and likewise headed for Kolambugan.[15]
Upon the request of Pedro P. Legaspi, barangay captain of Bulua, Cagayan de Oro City,[16]
NBI forensic chemist Bernabe P. Arenga examined the 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 report revealed that the victim was negative for gunpowder nitrates.[17] Arenga opined
that on the average, nitrates would be lost within a seventy-two (72)-hour period; that there had
been instances when the substance would remain on a living person up to nine days; that nitrates
could not penetrate rubber gloves; that no amount of washing can remove the nitrates; and that
even the application of formalin does not affect the presence of nitrates in the hands of a
person.[18]

On 11 August 1992, Dr. Tammy Uy, a medico-legal officer of the NBI in Cagayan de Oro City,
conducted a post-mortem examination on the body of Paquito Umas-as. At the time of
examination, the victim's body had already been cleaned and embalmed. Dr. Uy's examination
disclosed that the cause of death was severe hemorrhage secondary to multiple gunshot wounds.
There were eight (8) gunshot wounds and each wound was considered fatal.[19]

To prove damages, Generoso Umas-as testified that he lost consciousness upon learning of the
death of his son Paquito. Paquito's family spent P8,000.00 for the wake and P10,000.00 for his
burial. Paquito had left his father P12,000.00 to pay for some appliances the former had bought;
but the latter, to underwrite funeral expenses, still had to sell his land for P100,000.00 only
P25,000.00 of which had been paid in advance by the buyer. However, Generoso could not
remember where he placed the receipts for the wake and burial expenses.[20]

The defense presented a different version of the commission of the crime. Petitioner presented as
witnesses Julmunier Akbar Jubail, Celso Gomera Regencia and Jovito Luna Cabuslay.

Police Superintendent Julmunier A. Jubail, Provincial Director of the Philippine National Police
(PNP), Lanao del Norte Command stated that he had received a reliable intelligence report of a
plot to assassinate the Mayor and Vice-Mayor of Kauswagan, Lanao del Norte and Governor
Abalos and his family. In response to the intelligence report, he dispatched a team of PNP
personnel to conduct mobile checkpoints along the national highways in several municipalities
and to check on people who would possibly carry out the plot. Jubail claims that the intelligence
report was proven accurate after a few months because the Vice-Mayor of Kauswagan was killed
in Samborong, Linamon and in December of the same year, Governor Abalos was assassinated
in Iligan City.[21]

The team headed by Senior Inspector Celso G. Regencia included SPO4 Rosello Canoy, SPO2
Jovito Cabuslay, C2C Nilo Montebon and C2C Gerry Cane. Their area of responsibility
consisted of the twenty-two (22) municipalities of Lanao del Norte. In full military outfit, save
for Canoy as he was assigned to the Intelligence Operatives Command, the men established a
mobile checkpoint on 5 August 1992 at the national highway, Barangay Libertad, Kauswagan,
Lanao del Norte for the purpose of intercepting armed men who intend to carry out the
assassination plot.[22]

At about 8:30 in the morning, a man riding on a red Honda motorcycle[23] going to the direction
of Pagadian City approached the mobile checkpoint. The motorcycle rider was allegedly wearing
a black bonnet, sunglasses, sweatshirt and gloves that covered the half portion of his fingers.[24]

Regencia testified that he signaled the motorcycle rider to stop at the right side of the road. He
asked for the identification card of the motorcycle rider who pretended to reach for his wallet,
but instead pulled out a gun. He heard a shot and his thigh went numb. As he rolled to the
ground, he heard a volley of gunshots after which petitioner approached him. Regencia then
approached the motorcyclist and removed his bonnet to be able to identify him. Regencia later
found out that the motorcyle rider was shot by petitioner. [25]

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 loaded on the hummer vehicle to be brought to a
hospital, but was pronounced dead on arrival by Dr. Caga, the attending physician. Regencia
then asked that he be given first-aid treatment for the wounds he sustained. He thereafter turned
over the rider's motorcycle, sunglasses and revolver to the police station at Kauswagan. And
after bringing the victim's body to a funeral home in Kolambugan, he proceeded to Baroy
General Hospital where his wounds were treated by a certain Dr. Fabin.[26]

To prove that he was wounded during the incident, Regencia showed to the court a quo the scars
caused by the gunshot wounds. There were three 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
upon hitting an object. He presented a medical certificate under the signature of Dr. Demterio U.
Opamen, Jr.[27]

For his defense, petitioner confirmed Regencia's testimony that the latter had directed an
approaching motorcyclist to stop at the right side of the highway. He heard Regencia ask the
motorcycle rider in Visayan dialect to show his identification card. Cabuslay then saw Paquito
Umas-as shoot Celso Regencia. This and his belief that he was the next target prompted him to
shoot the motorcycle rider with his M-16.[28]

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 inform Recon 9 and 13. The report is
couched as follows:

"SPOT REPORT x x x CMM SPO2 JOVITO CABUSLAY CMM INSP REGENCIA'S BACK-
UP OPEN FIRE (sic) HITTING AND FATTALY (sic) WOUNDING SAID UNIDENT(IFIED)
PERSON WWITH (sic) MULTIPLE GUNSHOT WOUNDS IN HIS BODY AND DIED ON
THE SPOT PD RESPONDING PNP ELEMETS RECOVERED FROM THE VICTIM'S BODY
ALFA CAL. 38 REVOLVER SMITH AND WESSON (HM) SN 236701 WITH ONE (1)
EMPTY SHELL AND 5 UNSPENT AMMO x x x "

The incident found its way to the police blotter of the police station of Kauswagan, Lanao del
Norte.[30] It is embodied in a Certification[31] signed by Inspector Fulgencio dela Pena
Raguine, Chief of Police, issued at the request of Atty. Arthur Abundiente for trial purposes and
formulated in this wise:
Police Blotter Page Nr. 496-Entry Nr. 9187 & 9188=

050810H Aug 1992 - SPO3 Nestor S Ortiz, Intel NOR this station, left stn with elements from
Lanao del Norte PNPC under INSPECTOR CELSO G REGENCIA PNP and proceeded to
Libertad, Kauswagan, LN to follow-up suspects allegedly hired for killing Mpl Mayor Myron B.
Rico of Kaus, LN.

050835H Aug 1992 - SPO3 Nestor Ortiz PNP returned station informed that suspects were
intercepted at Libertad, Kaus, LN but when confronted by the PNP team, fired and shot
INSPECTOR CELSO G REGENCIA PNP using cal. 38 revolber (sic) (Homemade) hitting on
his right thigh prompting SPO3 Cabustay (sic), fired back to the suspect hitting at the chest
causing the instantaneous death of the suspect. One cal. 38 revolber (sic) (Homemade) with 5
live ammos and one empty shell at the chamber, one rayban (sunglass) and one motorcycle
(Honda-Camel backtype) color red with out plate Nr.

Police Blotter Page Nr. 497- Entry Nr.9191=

081240H Aug 1992 - Romeo Umas-as, 42 years old x x x.
Police Blotter Page Nr. 501-Entry Nr.9228=
251315H Aug 1992 - Impounded Honda Motorcycle x x x.
Police Blotter Page Nr. 508-Entry Nr. 9100=
021130H Oct 1992 - COP Bartolini RD got the one deposited rev. cal. 38 SW S#236701 w/ (4)
four live ammo and one empty shell past 30th day of Sep 92 for NBI examination at Cagayan de
Oro City.

Petitioner justified the shooting of Paquito Umas-as because he believed that he would be the
next person to be shot at by the victim; and having acted in defense of his person and that of his
superior officer, he asserted before the court a quo that he has no criminal liability because of the
attendance of the following circumstances: (a) unlawful aggression on the 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 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 these requisites
being present, petitioner claimed there was legal justification for shooting Paquito Umas-as.[32]

The Sandiganbayan however grave credence to the version of the prosecution and rejected the
version of petitioner. So, it found him guilty beyond reasonable doubt of the crime of homicide.
It accorded full faith and credence to the testimony of Zaragosa as it was "categorical,
straightforward, spontaneous and consistent." Moreover, it observed that no proof was adduced
to show that Zaragosa was moved by some evil motive to falsely testify against the accused
Cabuslay.[33]

The Sandiganbayan likewise noted grave deficiencies in the evidence of the defense as follows:
(1) The physical existence of the handgun allegedly 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 Gualberto Dayot Pasco-presented by the defense to impeach the credibility of
Zaragosa-was taken under intimidating and dubious circumstances, which fact creates doubt as
to the affidavit's voluntariness and credibility;[35] (3) The medical certificate purportedly
evidencing that Regencia had been shot has no probative value as the doctor who executed the
same did not testify during trial. Notably, the medical certificate was executed by a doctor
different from the one who treated Regencia's wound;[36] (4) The number of gunshot wounds
inflicted upon the victim betrays petitioner's claim of reasonable necessity of the means used to
repel the unlawful aggression allegedly displayed by the victim.[37]

Hence, petitioner filed the instant petition before the Court, insisting that the Sandiganbayan
erred in not crediting him the justifying circumstance of self-defense or defense of a stranger or
the lawful exercise of a right or office.[38]

Pursuant to the Court's Resolution[39] dated 3 September 1997, the Office of the Solicitor
General (OSG) submitted before the Court a Manifestation and Motion In Lieu Of Comment[40]
to aid the resolution of the instant petition. In said manifestation, the OSG stated that it is the
Office of the Ombudsman which should represent the People in cases elevated to the Court from
the Sandiganbayan except in cases filed under Executive Orders Nos. 1, 2, 14, and 14-A issued
in 1986. Nevertheless, it opined that the conviction of petitioner should be reversed because the
evidence of the prosecution when pitted against that of the defense "may not stand close
scrutiny." It also asserted that the ponente of the appealed decision was not yet a member of the
Third Division when the witnesses testified and when the parties presented their evidence; hence,
the applicability of the Court's ruling in People v. Gutual,[41] that no respect can be accorded to
the 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 stage.[42]

In its Comment,[43] the Office of the Ombudsman through the Office of the Special Prosecutor
seeks the denial of the instant petition on the ground that the defense failed to impeach the
credibility of Zaragosa. It agrees with respondent court that petitioner's story was contrary to
human experience and hence, it correctly debunked self-defense and defense of a stranger as
grounds for petitioner's acquittal.[44]

The petition is without merit.

While the rule that the factual findings of the court a quo are generally not disturbed on appeal
because the trial judge had the best opportunity to observe them and the manner by which they
testify is concededly not applicable to the instant case considering that the ponente of the
assailed Decision was not the one who heard all the witnesses, nevertheless, after a 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. Court of Appeals,[45] "the efficacy of a decision is not
necessarily impaired by the fact that the ponente only took over from a colleague who had earlier
presided over the trial. For it does not follow that a judge who was not present during the trial
cannot render a valid and just decision."

Moreover, it should be stressed that the Sandiganbayan, which functions in divisions of three
Justices each, is a collegial body which arrives at its decisions only after deliberation, the
exchange of view and ideas, and the concurrence of the required majority vote.[46]
Simply put, the ponente of the assailed Decision is not the Third Division of the Sandiganbayan.
He alone does not speak for and on behalf of his Division. Each Division of the Sandiganbayan
is a three-man body whose members each have one vote to cast in every deliberation concerning
a case or any incident therein that is within its jurisdiction.

We have minutely scrutinized the assailed Decision and find it amply supported by the evidence
on record.

Petitioner claims that he acted in self-defense and in defense of Regencia.

One who invokes self-defense admits responsibility for the killing. Accordingly, the burden of
proof shifts to the accused who must then prove the justifying circumstance. He must show by
clear and convincing evidence that he indeed acted in self-defense, or in defense of a relative or a
stranger. With clear and convincing evidence, all the following elements of self-defense must be
established: (1) unlawful aggression on the part of 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 claiming self-defense.[47]

Self-defense, like alibi, is a defense which can easily be concocted. It is well-settled in this
jurisdiction that once an accused has admitted that he inflicted the fatal injuries on the deceased,
it is incumbent upon him in order to avoid criminal liability, to prove the justifying circumstance
claimed by him with clear, satisfactory and convincing evidence. He cannot rely on the weakness
of the prosecution but on the strength of his own evidence, "for even if the evidence of the
prosecution were weak it could not be disbelieved after the accused himself had admitted the
killing."[48] Thus, petitioner must establish with clear and convincing evidence that the killing
was justified, and that he incurred no criminal liability therefor.

In order that defense of a stranger may be appreciated, the following requisites must concur: (1)
unlawful aggression by the victim; (2) reasonable necessity of the means to prevent or repel it;
and (3) the person defending be not induced by revenge, resentment or other evil motive.[49]
Unlawful aggression is the first and primordial element of self-defense. Of the three requisites, it
is the most important. Without it, the justifying circumstance cannot be invoked. If there is no
unlawful aggression, there is nothing to prevent or repel.[50]

Unlawful aggression refers to an attack or a threat to attack, positively showing the intent of the
aggressor to cause injury. It presupposes not merely a threatening or an intimidating attitude, but
an actual, sudden and unexpected attack or an imminent danger thereof, which imperils one's life
or limb. Thus, when there is no peril, there is no unlawful aggression.[51]

It is crucial to ask whether the victim Paquito was an unlawful aggressor. We answer this
question in the negative. Aggression to be unlawful, must be actual and imminent, such that there
is a real threat of bodily harm to the person resorting to self-defense or to others whom that
person is seeking to defend.

Petitioner asserts that he was the victim's next target, thus the need to shoot the victim in self-
defense. His claim should be disbelieved. As he himself had explicitly testified before
respondent court, the hummer jeep was behind him and was parked about three to four meters
from the national highway.[52] He also stated that Paquito could not have seen the hummer jeep
because it was obscured by Muslim houses.[53] It only follows that if from Paquito's
perspective, he cannot see the hummer jeep which is a fairly large vehicle, then he could not
have seen petitioner as well. If Paquito cannot see petitioner from where he was positioned, then
Paquito could not have possibly aimed to shoot at petitioner. Petitioner's contention therefore
that there was an imminent threat of bodily harm coming from Paquito upon his person is at best
illusory. There was no peril, ergo, there was no unlawful aggression.

It should also be recalled that at the time, Cane was on top of the hummer jeep manning the
machine gun.[54] If Regencia had indeed been shot as the defense insists, then Cane was better
situated to defend Regencia. It is implausible how an officer like him, in such a strategic position
and trained in the operation of the said weapon could have omitted firing a shot in Regencia's
defense. More to the point, it is beyond credulity that the outbursts of gunfire hardly elicited any
reaction from the other police officers who were only a few meters away from the crime scene
and who continued conducting their search on the bus which was then about to pass the
checkpoint.[55]

Likewise noteworthy is the fact that after the second burst of fire on Paquito, knowing that
Paquito was still alive[56] and in all probability was still holding a handgun,[57] petitioner chose
to assist Regencia instead of making sure that Paquito had been immobilized and disarmed, basic
to a policeman's training.

In addition, the claim of the defense that Paquito shot Regencia on his right thigh is untenable.
Petitioner would have the Court believe that Paquito dared challenge five policemen, four of
them in full battlegear, at a checkpoint and armed with only a handgun. This is contrary to
ordinary human experience, as well as the human instinct which is to flee for dear 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 be to abort one's plans and leave the premises
immediately. Petitioner's story not only was contrary to the ordinary course of nature and the
ordinary habits of life, in all appearances it was also contrived.[58] Respondent court was correct
in rejecting it.

We also confirm that the medical certificate presented by Regencia to 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 defense. We also note that the physician who signed said medical
certificate, a certain Dr. Demterio U. Opamen, Jr., is different from the doctor who according to
Regencia had treated his wounds.[59]

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 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 requisite.

Petitioner, however, insists that he would have presented the gun had not respondent court
pressured him to rest his case and submit it for decision. Such contention hardly inspires belief.
Records reveal that petitioner never made it known to respondent court that the defense would be
presenting the gun allegedly used by Paquito. What the defense did manifest was their intention
to present one Major Bartolino to testify that he had 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 that the defense was not even sure that there was an NBI report on said examination.
The counsel for the defense manifested before respondent court, as follows:

ATTY. ABUNDIENTE:

xxx

I intended, Your Honor, Please, to present two more witnesses, Major Bartolini who received the
gun and he will testify on this particular testimony that he was the Station Commander of the
municipality of 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 that he took the gun for NBI
Examination sometime in the month of October, 1992, no, on the 30th day of September, 1992.

CHAIRMAN:

This was covered by police blotter?

ATTY. ABUNDIENTE:

Yes, Your Honor.

CHAIRMAN:

You don't need the testimony of Bartolini, but do you have the report of the NBI?

ATTY. ABUNDIENTE:
That is why, Your Honor, because we have not received any communication from Bartolini . . .

CHAIRMAN:

How did you come to know that Bartolini sent this firearm to the NBI for examination? . . .

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 . . .

CHAIRMAN:

Does it matter - whether you can prove the examination report of the NBI or not?

ATTY. ABUNDIENTE:

I don't know if there was a report of the NBI examination . . .

CHAIRMAN:

Precisely . . ."[60]

The defense was well aware of the relevance of the NBI report to prove their allegations that the
victim was carrying a gun and used the same on 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 to secure a copy of the report or even know of its existence. It should be noted that the
examination was made as early as September 1992. A party's failure to produce evidence, which
if favorable would naturally have been produced, is open to the inference that the facts were
unfavorable to his case.[61] This Court can only conclude that said gun never 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 petitioner on the discrepancy of the make of the gun as noted by
respondent court in its Decision.

Parenthetically, petitioner stresses that the victim had tested negative for gunpowder nitrates as
the latter had been wearing gloves at the time of the incident. This claim runs counter to his[62]
and Regencia's[63] testimony that the only things recovered from Paquito and which were turned
over to the Provincial Police Command were the victim's motorcycle, sunglasses and the alleged
gun. The police blotter reporting the incident confirms their testimonies. Interestingly, said
police blotter also makes no mention that gloves were recovered from the victim.[64]

Anent the credibility of Zaragoza, the sole prosecution eyewitness on whose testimony the
version of the prosecution is anchored, we find that petitioner failed to impeach his credibility.
No evidence was shown that Zaragoza was actuated by an improper motive. As such, there is no
cogent reason why the Court should deny Zaragoza's testimony the full faith and credit it
deserves.

On the alleged inconsistencies in Zaragoza's testimony, it is relevant to state that a witness is not
expected to remember an occurrence with perfect recollection of the minute details. Thus, even
the most truthful of witnesses may err and often give confusing statements. What is important is
that Zaragosa unwaveringly, forthrightly and unequivocally declared that petitioner shot at the
victim. Neither did he falter in identifying the gunman.[65]

All in all, petitioner has failed to prove unlawful aggression on the part of the victim. Without
this essential element, petitioner cannot successfully invoke self-defense. Even assuming that he
tried to defend a stranger, his defense would not prosper. In defense of a stranger, unlawful
aggression on the part of the victim is also indispensable. In both self-defense and defense of a
stranger, unlawful aggression is a primordial element.

Granting arguendo that there was unlawful aggression, we find that petitioner's contention that
he employed reasonable means to repel the aggression must fail. It is settled that reasonable
necessity of the means employed does not imply material commensurability between the means
of attack and defense. What the law requires is rational equivalence.[66]

Also, the nature and number of wounds suffered by Paquito negate any claim of self-defense or
defense of a stranger. The Court notes that the victim sustained eight gunshot wounds which
were all fatal as they affected vital organs.[67] Petitioner testified that he pulled the trigger of his
armalite twice.[68] He aimed at "the front of his body, at the chest, up to the stomach."[69] Had
petitioner merely defended himself from the victim's unlawful aggression, one shot to
immobilize him would have been enough. There was no reason for petitioner to shoot him seven
more times, even aiming at his vital organs. It bears repeating that the nature and number of
wounds inflicted by the accused are constantly and unremittingly considered as
important indicia which disprove a plea for self-defense or defense of stranger because they
demonstrate a determined effort to kill 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.

Petitioner's avowal that his first shot was single but went automatic on the second shot is
likewise unbelievable.[71] Petitioner's armalite has a selector 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 reasonably conclude that it was he who switched the firearm to automatic
firing.

All told, petitioner failed to satisfy the requirements of self-defense and defense of a stranger to
justify the shooting of Paquito.

Next, petitioner contends that the killing of Paquito resulted from the lawful performance of his
duty as police officer. However, such justifying circumstance may be invoked only after the
defense successfully proves that the accused acted in the performance of a duty, and the injury or
offense committed is the necessary consequence of the due performance 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. 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 sworn to maintain peace and
order and to protect the lives of the people. As aptly held in People v. de la Cruz,[73]
"Performance of duties does not include murder.... Murder is never justified, regardless of the
victim."

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 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 P50,000.00 as actual damages. To seek recovery of actual damages, it is necessary
to prove the actual amount of loss with reasonable degree of certainty premised upon competent
proof and on the best evidence obtainable. Since the prosecution did not present receipts to prove
the actual losses suffered, such actual damages cannot be awarded.[74]

On the other hand, consistent with prevailing jurisprudence, we award P50,000.00 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 to such amount as indemnity for death without need of any evidence
or proof of damages.[75]

We also affirm the award of moral damages in view of the finding that Generoso Umas-as lost
consciousness and suffered anguish and sorrow because of the incident.

WHEREFORE, the assailed Decision dated 25 June 1997 of the Sandiganbayan in Criminal
Case No. 19586 finding petitioner GUILTY of homicide is partially AFFIRMED with the
following MODIFICATIONS: (a) the award of Fifty Thousand Pesos (P50,000.00) as actual
damages is deleted; and (b) petitioner is ordered to pay fifty thousand pesos (P50,000.00) as
indemnity ex delicto. No costs.

SO ORDERED.

DANTE O. TINGA
 Associate Justice

WE CONCUR:

REYNATO S. PUNO
Associate Justice
Chairman

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been in consultation before the case was
assigned to the writer of the opinion of the Court's Division.

REYNATO S. PUNO
Associate Justice
Chairman, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairman's Attestation,
it is hereby certified that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court's Division.
 HILARIO G. DAVIDE, JR.
Chief Justice
Footnotes:

[1]
Rollo, pp. 4-21; Dated 9 July 1997.
[2]
Rollo, pp. 22-36; Penned by Associate Justice Leonardo I. Cruz with the concurrence of Associate Justices Cipriano A. del Rosario and Sabino
R. de Leon, Jr.

[3]
Rollo p. 35.
[4]
Rollo, pp. 22, 211.

[5]
Rollo, pp. 22, 211; Sandiganbayan Records, p. 1.

[6]
TSN, 26 October 1994, pp. 8-9, 10-12; See also Exhibit G.

[7]
TSN, 26 October 1994, p. 27.

[8]
TSN, 26 October 1994, p. 23.

[9]
TSN, 26 October 1994, p. 16.

[10]
Lauriana had invited Zaragosa to his place for them to gather young coconuts.

[11]
TSN, 25 October 1994, pp. 21, 23-24, 46.

[12]
TSN, 25 October 1994, pp. 24-25, 38.

[13]
TSN, 25 October 1994, pp. 27-28, 32, 34-35.

[14]
TSN, 25 October 1994, pp. 27-28, 32, 34-35.

[15]
TSN, 25 October 1994, p. 34-25.

[16]
Exhibit E-1; Addressed to NBI Director Sancho K. Chan, Jr.

[17]
Exhibit E.

[18]
TSN, 25 October 1994, pp. 10-20.

[19]
Rollo, p. 23; Exhibit B.

[20]
Rollo, p. 24; TSN, 26 October 1994, pp. 14-15, 17-18.
[21]
Rollo, p. 25; TSN, 17 April 1995, pp. 5-8.

[22]
Rollo, p. 26; TSN, 17 April 1995, pp. 28-31.

[23]
Exhibit 6.

[24]
Rollo, p. 26; TSN, 17 April 1995, p. 37.

[25]
Rollo, p. 150.

[26]
Rollo, p. 26; TSN, 17 April 1995, pp. 37-39, 41, 46-50, 51-55; TSN, 18 April 1995, p. 33.

[27]
Rollo, p. 26; TSN, 17 April 1995, pp. 39-40, 53, 55-56; Exhibit 5.

[28]
Rollo, p. 26; TSN, 18 April 1995, pp. 29-30.
[29]
Exhibit 1.

[30]
Rollo, p. 27.

[31]
Exhibit 6.
[32]
Rollo, p. 28.

[33]
Rollo, pp. 29-30.
[34]
Id. at 30.

[35]
Id. at 32.
[36]
Id. at 33.
[37]
Ibid.

[38]
Id. at 7.

[39]
Id. at 38.
[40]
Id. at 86-115; Dated 24 April 1998.

[41]
324 Phil. 244 (1996).
[42]
Rollo, p. 87.
[43]
Id. at 143-169; Dated 26 August 1998.
[44]
Id. at 162.

[45]
437 Phil. 260, 269-270 (2002).
[46]
Mejorada v. Sandiganbayan, Nos. L-51065-72, 30 June 1987, 151 SCRA 399, 408; Consing v. Court of Appeals, G.R. No. 78272, 29 August
1989, 177 SCRA 14, 21-22.

[47]
People v. Cawaling, 355 Phil. 1, 37 (1998); People v. Tan, 373 Phil. 990, 1009 (1999); People v. Aglipa, 391 Phil. 879, 888 (2000); Salcedo v.
People, G.R. No. 137143, 8 December 2000, 347 SCRA 499, 507; People v. Asuela, 426 Phil. 428, 443-444 (2002); People v. Magnabe, Jr., 435
Phil. 374, 390 (2002).
[48]
People v. Belbes, 389 Phil. 500, 507 (2000).

[49]
People v. Diego, 424 Phil. 743, 751. (2002).

[50]
KAPUNAN, R. AND FAYLONA, D. CRIMINAL LAW (1993 ed.) 58; People v. Cawaling, supra note 47 at 36.

[51]
People v. Sabdani, 389 Phil. 840, 847 (2000); People v. Janairo, 370 Phil. 59, 32 (1999).

[52]
TSN, 19 April 1995, pp. 7-8.

[53]
Id. at 16.

[54]
Id. at 7.

[55]
Id. at 15.

[56]
Id. at 14-15.

[57]
TSN, 18 April 1995, pp. 13, 32.

[58]
People v. Cabaya, 411 Phil. 616, 630 (2001).

[59]
TSN, 17 April 1995, p. 55.

[60]
TSN, 19 April 1995, pp. 17-18.
[61]
People v. Salangga, G.R. No. 100910, 25 July 1994, 234 SCRA 407, 421-422.

[62]
TSN, 18 April 1995, p. 33.

[63]
TSN, 17 April 1995, p. 54.

[64]
Certification dated 25 October 1994, Exhibit 6, Exhibit 6-A.

[65]
See supra note at 45, p. 271.

[66]
People v. Gutual, 324 Phil. 244, 259 (1996).

[67]
TSN, 24 October 1994, p. 21.

[68]
TSN, 19 April 1995, p. 12.
[69]
Id. at 15.

[70]
People v. Diego, supra note 49 at 755.

[71]
TSN, 19 April 1995, p. 12.

[72]
Section 5, Article 11, Revised Penal Code; People v. Belbes, 389 Phil. 500, 508-509 (2000); People v. Cawaling, supra note 47 at 37-38.

[73]
G.R. Nos. 101000-01, 18 October 1993, 227 SCRA 278, 284.

[74]
People v. Pansensoy, 437 Phil. 499, 522-523 (2002); People v. Cawaling, supra note 47 at 43.

[75]
People v. Calabroso, 394 Phil. 658, 676 (2000); People v. Pansensoy, 437 Phil. 499, 522 (2002) citing People v. Adoc, 330 SCRA 626 (2000)
and People v. Solis, 291 SCRA 529 (1998); see also supra note at 49, p. 273.

THE PEOPLE OF THE PHILIPPINES vs. PIO RICOHERMOSO, SEVERO

PADERNAL, JUAN PADERNAL, ROSENDO PERPEÑAN, MACARIO MONTEREY
and RITO MONTEREY, defendants, JUAN PADERNAL and SEVERO PADERNAL

G.R. Nos. L-30527-28, March 29, 1974

SECOND DIVISION

DECISION

AQUINO, J.:p

Severo Padernal and Juan Padernal appealed from the decision of the Circuit Criminal Court at
Lucena City, convicting them of murder, sentencing each of them to reclusion perpetua and
ordering them to pay solidarily the sum of twelve thousand pesos to the heirs of Geminiano de
Leon and to pay the costs (Criminal Case No. CCC-IX-37-Quezon or 1922-CFI-Gumaca).

In the same decision they were convicted of lesiones leves. Each one was sentenced to suffer the
penalty of fifteen (15) days of arresto menor and to pay the costs. Rosendo Perpeñan, Rito
Monterey and Macario Monterey were acquitted (Criminal Case No. CCC-IX-38-Quezon or
1923-CFI-Gumaca).
The facts disclosed in the prosecution's evidence, on which the judgment of conviction was
based, are as follows:

At about nine o'clock in the morning of January 30, 1965 Geminiano de Leon, together with his
thirty-three-year old common-law wife Fabiana Rosales, his twenty-four-year old son Marianito
de Leon and one Rizal Rosales, encountered Pio Ricohermoso in Barrio Tagbacan Silangan,
Catanauan, Quezon.

Geminiano owned a parcel of land in that barrio which Ricohermoso cultivated as kaingin.
Geminiano asked Ricohermoso about his share of the palay harvest. He added that he should at
least be allowed to taste the palay harvested from his land. Ricohermoso answered that
Geminiano could go to his house anytime and he would give the latter palay. Geminiano rejoined
that he could not get the palay that morning because he was on his way to Barrio Bagobasin but,
on his return, he would stop at Ricohermoso's house and get the palay.

When Geminiano returned to Barrio Tagbacan Silangan, he stopped at Ricohermoso's place. It

was about two o'clock in the afternoon. Geminiano sat on a sack beside Fabiana Rosales in front
of the house while Marianito stood about three meters behind his father. A .22 caliber rifle was
slung on Marianito's right shoulder. Ricohermoso stood near the door of his house while Severo
Padernal was stationed near the eaves of the house.

Geminiano asked Ricohermoso about the palay. The latter, no longer conciliatory and evidently
hostile, answered in a defiant tone: "Whatever happens, I will not give you palay." Geminiano
remonstrated: "Why did you tell us to pass by your house, if you were not willing to give the
palay?"

At that juncture, as if by pre-arrangement, Ricohermoso unsheathed his bolo and approached

Geminiano from the left, while Severo Padernal (Ricohermoso's father-in-law) got an axe and
approached Geminiano from the right. The latter looked up to the sexagenarian Severo Padernal,
with both hands raised and pleaded: "Mamay (Grandpa), why will you do this to us. We will not
fight you." While Geminiano was still looking up to Severo Padernal on his right, Ricohermoso
walked to Geminiano's left, and, when about one meter from him, stabbed him on the neck with
his bolo. Geminiano fell face downward on the ground. While in that helpless position, he was
hacked on the back with an axe by Severo Padernal.
At that same place and time, while Severo Padernal and Ricohermoso were assaulting
Geminiano de Leon, another episode was taking place. Juan Padernal (Ricohermoso's brother-in-
law and the son of Severo) suddenly embraced Marianito de Leon from behind, with his right
arm locked around Marianito's neck and his left hand pressing Marianito's left forearm. They
grappled and rolled downhill towards a camote patch. Marianito passed out. When he regained
consciousness, his rifle was gone. He walked uphill, saw his mortally wounded father Geminiano
in his death throes, and embraced him. He carried Geminiano for a short distance. The fifty-one
year old Geminiano died at two o'clock on that same day.

Doctor Isabela A. Matundan certified that Geminiano de Leon sustained the following wounds:

1. Wound, incised, neck, lateral aspect, left, cutting the carotid artery and jugular vein, 4
inches in length crosswise with fracture of the cervical vertebra.

2. Wound, incised, back lumbar region, left, 4 ½ inches, directed anteriorly, 3 inches deep.

3. Wound, incised, waist, dorsal, 1 ½ inches, skin only.

4. Hematoma, forearm, upper third, left. (Exh. B).

Doctor Matundan said that the first wound was fatal. It could have caused instantaneous death
because it was a deep wound which pierced the carotid artery and jugular vein (Exh. C). The
second wound on the back could likewise have caused the victim's death if it had penetrated the
kidney.

Doctor Matundan found that Marianito de Leon sustained multiple abrasions on the neck and
abdomen and a lacerated wound on the left foot which would heal from one to nine days even
without medical treatment.

Appellants' version is that in the afternoon of January 30, 1965, when Ricohermoso refused to
give any palay to Geminiano de Leon, because the land tilled by the former was allegedly a
public land, Geminiano approached Ricohermoso. When Geminiano unsheathed his bolo,
Ricohermoso met him, drew his bolo and struck Geminiano on the left side of the neck. The
latter tried to parry the blow. He was wounded in the wrist. As Geminiano turned right to flee,
Ricohermoso struck him again on the left side of his body, causing him to fall on the ground.
Geminiano died on the spot due to the bleeding from the wound on his neck.

While Geminiano was being assaulted, his son Marianito tried to shoot with his rifle but Juan
Padernal disabled him and wrested the gun. Marianito suffered abrasions on the neck and other
parts of the body (Pages 1 to 3, appellants' brief).

It is manifest that the defendants fashioned their version in such a way as to shift the
responsibility for the killing to Ricohermoso, a fugitive from justice who has not been tried.
They also tried to exculpate Severo Padernal and to prove that Ricohermoso acted in self-
defense.

The appellants filed their brief on February 6, 1970. Later, Severo Padernal withdrew his appeal.
The withdrawal was granted in the resolution dated November 3, 1970 (Page 206, Rollo). That
withdrawal strengthened the case for the prosecution or the appellee and rendered inoperative
appellants' version of the case. Severo Padernal in effect accepted as correct the prosecution's
version of the tragic incident and the trial court's finding that he conspired with Ricohermoso and
his son, Juan, to kill Geminiano de Leon.

The only issue in this appeal, which concerns Juan Padernal, is whether he conspired with
Ricohermoso and Severo Padernal to kill Geminiano de Leon.

The trial court rationalized its conclusion that there was conspiracy by stating that their conduct
revealed unity of purpose and a concerted effort to encompass Geminiano's death.

Appellant Juan Padernal invokes the justifying circumstance of avoidance of a greater evil or
injury (par. 4, Art. 11, Revised Penal Code) in explaining his act of preventing Marianito de
Leon from shooting Ricohermoso and Severo Padernal. His reliance on that justifying
circumstance is erroneous. The act of Juan Padernal in preventing Marianito de Leon from
shooting Ricohermoso and Severo Padernal, who were the aggressors, was designed to insure the
killing of Geminiano de Leon without any risk to his assailants.

Juan Padernal was not avoiding any evil when he sought to disable Marianito. Padernal's
malicious intention was to forestall any interference in the felonious assault made by his father
and brother-in-law on Geminiano. That situation is unarguably not the case envisaged in
paragraph 4 of article 11.

Juan Padernal contends that he was not a co-principal because he did not take any direct part in
the killing of Geminiano, that he did not force or induce Ricohermoso to stab Geminiano and
that he allegedly did not cooperate in its commission. That contention is not well-taken.

It should be recalled that, in the morning, Geminiano had an understanding with Ricohermoso
that he (Geminiano) would return in the afternoon to get his share of the palay harvest.
Ricohermoso gave Geminiano the impression that he (Ricohermoso) was amenable to giving
Geminiano his share of the harvest. However, during the interval, Ricohermoso changed his
mind. Instead of remaining steadfast to his original intention to give Geminiano palay,
Ricohermoso planned with his father-in-law, Severo Padernal, and his brother-in-law, appellant
Juan Padernal, the manner of liquidating Geminiano as to stop him from pestering Ricohermoso
with demands for a share in the harvest.

So, when Geminiano reappeared at Ricohermoso's place in the afternoon, Severo Padernal,
Ricohermoso Juan Padernal, like actors in a well-rehearsed play, performed their assigned roles
with dramatic precision. Severo Padernal and Ricohermoso, one armed with an axe and the other
with a bolo, in a pincer movement, confronted Geminiano de Leon. Simultaneously with that
maneuver, the thirty-five-year old Juan Padernal embraced Marianito de Leon and prevented him
from firing at Severo Padernal and Ricohermoso or from helping his father.

Considering the trio's behavior and appellant Juan Padernal's close relationship to Ricohermoso
and Severo Padernal, the ineluctable conclusion is that he acted in conspiracy with them. He
coordinated and timed his seizure of Marianito with the assault of Ricohermoso and Severo
Padernal on Geminiano. It is doubtful if the assailants could have consummated the killing of
Geminiano, without their suffering any injury, if Marianito had not been rendered helpless by
appellant Juan Padernal.

The circumstances surrounding the killing of Geminiano de Leon alevosia or treachery. His
hands were raised and he was pleading for mercy with Severo Padernal, when Ricohermoso
struck him on the neck with a bolo. The fact that an exchange of words preceded the assault
would not negate the treacherous character of the attack. Geminiano did not expect that
Ricohermoso would renege on his promise to give him palay and that he would adopt a bellicose
attitude. Juan Padernal's role of weakening the defense, by disabling Marianito de Leon, was part
and parcel of the means of execution deliberately resorted to by the assailants to insure the
assassination of Geminiano de Leon without any risk to themselves (Par. 16, Article 14, Revised
Penal Code).

Treachery was appreciated in a case where the accused fired at the victim who, with hands
upraised, pleaded in a loud voice: "Do not shoot me; investigate first what was my fault" (People
vs. Barba, 97 Phil. 991. See People vs. Dagundong, 108 Phil. 682, 684, 693).

As to the other case, L-30528, the charge against the appellants was attempted murder with
respect to Marianito de Leon. The trial court convicted them lesiones leves. The case was
included in this appeal apparently pursuant to the provision in section 17(1) of the Judiciary Law
that a case arising out of the same occurrence, as that in which reclusion perpetua was imposed,
is appealable to this Court.

Inasmuch as Juan Padernal did not touch upon the lesiones leves case in his brief, he, like his
father Severo, seems to have acquiesced in the correctness of the trial court's decision.

WHEREFORE, the judgment of the lower court as to appellant Juan Padernal is affirmed with
costs against him.

SO ORDERED.

Zaldivar (Chairman), Fernando, Barredo and Fernandez, JJ., concur.

Antonio, J., took no part.

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs.

FELIPE DELIMA, defendant-appellant.
G.R. No. L-18660, December 22, 1922,

EN BANC
 DECISION

ROMUALDEZ,J.:

Lorenzo Napilon had escapes from the jail where he was serving sentence.

Some days afterwards the policeman Felipe Delima, who was looking for him, found him in the
house of Jorge Alegria, armed with a pointed piece of bamboo in the shape of a lance, and
demanded his surrender. The fugitive answered with a stroke of his lance. The policeman dodged
it and to impose his authority fired his revolver, but the bullet did not hit him. The criminal ran
away, without parting with his weapon. The peace officer went after him and fired again his
revolver, this time hitting and killing him.

The policeman was tried and convicted for homicide and sentenced to reclusion temporal and the
accessory penalties. He appeals from that judgment which must be reversed.

That killing was done in the performance of a duty. The deceased was under the obligation to
surrender, and had no right, after evading service of his sentence, to commit assault and
disobedience with a weapon in the hand, which compelled the policeman to resort to such an
extreme means, which although it prove to be fatal, was justified by the circumstances.

Article 8, No. 11, of the Penal code being considered, Felipe Delima committed no crime, and he
is hereby acquitted with the costs de oficio. So ordered.

Araullo, C.J., Street, Malcolm, Avanceña, Villamor, Ostrand, and Johns, JJ., concur.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

MANUEL BERONILLA, FILIPINO VELASCO, POLICARPIO PACULDO, and
JACINTO ADRIATICO, defendants-appellants.
G.R. No. L-4445, February 28, 1955
 EN BANC

DECISION

REYES, J.B.L. J.:

This is an appeal by accused Manuel Beronilla, Policarpo Paculdo, Filipino Velasco, and Jacinto
Adriatico from the judgment of the Court of First Instance of Abra (Criminal Case No. 70)
convicting them of murder for the execution of Arsenio Borjal in the evening of April 18, 1945,
in the town of La Paz, Province of Abra.

Arsenio Borjal was the elected mayor of La Paz, Abra, at the outbreak of war, and continued to
serve as Mayor during the Japanese occupation, until March 10, 1943, when he moved to
Bangued because of an attempt upon his life by unknown persons. On December 18, 1944,
appellant Manuel Beronilla was appointed Military Mayor of La Paz by Lt. Col. R. H. Arnold,
regimental commander of the 15th Infantry, Philippine Army, operating as a guerrilla unit in the
province of Abra. Simultaneously with his appointment as Military Mayor, Beronilla received
copy of a memorandum issued By Lt. Col. Arnold to all Military Mayors in Northern Luzon,
authorizing them "to appoint a jury of 12 bolomen to try persons accused of treason, espionage,
or the aiding and abetting (of) the enemy" (Exhibit 9). He also received from the Headquarters of
the 15th Infantry a list of all puppet government officials of the province of Abra (which
included Arsenio Borjal, puppet mayor of La Paz), with a memorandum instructing all Military
Mayors to investigate said persons and gather against them complaints from people of the
municipality for collaboration with the enemy (Exhibit 12-a).

Sometime in March, 1945, while the operations for the liberation of the province of Abra were in
progress, Arsenio Borjal returned to La Paz with his family in order to escape the bombing of
Bangued. Beronilla, pursuant to his instructions, placed Borjal under custody and asked the
residents of La Paz to file complaints against him. In no time, charges of espionage, aiding the
enemy, and abuse of authority were filed against Borjal; a 12-man jury was appointed by
Beronilla, composed of Jesus Labuguen as chairman, and Benjamin Adriatico, Andres Afos,
Juanito Casal, Santiago Casal, Benjamin Abella, Servillano Afos, Mariano Ajel, Felimon
Labuguen, Felix Murphy, Pedro Turqueza, and Delfin Labuguen as members; while Felix
Alverne and Juan Balmaceda were named prosecutors, Policarpo Paculdo as clerk of the jury,
and Lino Inovermo as counsel for the accused. Later, Atty. Jovito Barreras voluntarily appeared
and served as counsel for Borjal. Sgt. Esteban Cabanos observed the proceedings for several
days upon instructions of Headquarters, 15th Infantry. The trial lasted 19 days up to April 10,
1945; the jury found Borjal guilty on all counts and imposed upon him the death penalty
(Exhibits M to M-2). Pursuant to instructions from his superiors. Mayor Beronilla forwarded the
records of the case to the Headquarters of the 15th Infantry for review. Said records were
returned by Lt. Col. Arnold to Beronilla on April 18, 1945 with the following instructions:

"HEADQUARTERS 3RD MILITARY DISTRICT

15TH INFANTRY, USAFIP

In the Field

16 April 1945

Msg. No. 337

Subject: Arsenio Borjal, Charges Against

To: Military Mayor of La Paz, Abra.

1. Returned herewith are the papers on the case of Arsenio Borjal.

2. This is a matter best handled by your government and whatever disposition you make of the
case is hereby approved.

(Sgd. R. H. ARNOLD

Lieut.-Colonel, 15th Inf., PA

Commanding

Received April 18, 1945, 10:35 a.m

(Sgd.) MANUEL BERONILLA

Military Mayor, La Paz, Abra.

(Exhibits 8, 8-a)

and on the night of the same day, April 18, 1945, Beronilla ordered the execution of Borjal.
Jacinto Adriatico acted as executioner and Antonio Palope as grave digger. Father Luding of the
Roman Catholic Church was asked to administer the last confession to the prisoner, while Father
Filipino Velasco of the Aglipayan Church performed the last rites over Borjal's remains.
Immediately after the execution, Beronilla reported the matter to Col. Arnold who, in reply to
Beronilla's report, sent him the following message:

"HEADQUARTERS 3RD MILITARY DISTRICT

15 INFANTRY, USAFIP

NL In the Field

22 April 1945

Msg. No. 398

Subject: Report and information Re Borjal case

To: Military Mayor Beronilla.

1. Received your letter dated 18 April 1945, subject, above.

2. My request that you withhold action in this case was only dictated because of a query from
Higher Headquarters regarding same. Actually, I believe there was no doubt as to the treasonable
acts of the accused Arsenio Borjal and I know that your trial was absolutely impartial and fair.
Consequently, I can only compliment you for your impartial but independent way of handling
the whole case.

Best regards,

(Sgd.) R. H. ARNOLD

Lieut.-Colonel, 15th Infantry, PA

Commanding

Received April 26, 1945 7:00 a.m.

(Sgd.) MANUEL BERONILLA

Military Mayor, La Paz, Abra"

(Exhibit 21, 21-a)

Two years thereafter, Manuel Beronilla as military mayor, Policarpo Paculdo as Clerk of the
jury, Felix Alverne and Juan Balmaceda as prosecutors, Jesus Labuguen, Delfin Labuguen,
Filemon Labuguen, Servillano Afos, Andres Afos, Benjamin Adriatico, Juanito Casel, Santiago
Casel, Mariano Ajel, Felix Murphy, Benjamin Abella, and Pedro Turqueza as members of the
jury, Jacinto Adriatico as executioner, Severo Afos as grave digger, and Father Filipino Velasco
as an alleged conspirator, were indicted in the Court of First Instance of Abra for murder, for
allegedly conspiring and confederating in the execution of Arsenio Borjal. Soon thereafter, the
late President Manuel A. Roxas issued Executive Proclamation No. 8, granting amnesty to all
persons who committed acts penalized under the Revised Penal Code in furtherance of the
resistance to the enemy against persons aiding in the war efforts of the enemy. Defendant Jesus
Labuguen, then a master sergeant in the Philippine Army, applied for and was granted amnesty
by the Amnesty Commission, Armed Forces of the Philippines (Records, pp. 618-20). The rest of
the defendants filed their application for amnesty with the Second Guerrilla Amnesty
Commission, who denied their application on the ground that the crime had been inspired by
purely personal motives, and remanded the case to the Court of First Instance of Abra for trial on
the merits.

Upon motion of defense counsel, the case against defendant Jesus Labuguen, who had been
granted amnesty by the Amnesty Commission of the Armed Forces of the Philippines, was
ordered provisionally dismissed: defendant Juan Balmaceda was discharged from the
information so that he might be utilized as state witness, altho actually he was not called to
testify; while the case against defendants Antonio Palope (the grave digger) and Demetrio Afos
(a boloman) was dismissed for lack of sufficient evidence.
Trial proceeded against the rest of the defendants; and on July 10, 1950, the Court below
rendered judgment, acquitting the members of the jury and the grave digger Antonio Palope on
the ground that they did not participate in the killing of Arsenio Borjal; acquitting defendants
Jesus Labuguen, Felix Alverne, Severo Afos, and Lauro Parado upon insufficiency of evidence
to establish their participation in the crime; but convicting defendants Manuel Beronilla,
Policarpo Paculdo, Filipino Velasco, and Jacinto Adriatico as conspirator and co-principals of
the crime of murder, and sentencing them to suffer imprisonment of from 17 years, 4 months and
1 day of reclusion temporal to reclusion perpetua, to indemnify the heirs of Arsenio Borjal
jointly and severally in the amount of P4,000 with subsidiary imprisonment in case of
insolvency, and each to pay one fourth of the costs. In convicting said defendants, the Court a
quo found that while the crime committed by them fell within the provisions of the Amnesty
Proclamation, they were not entitled to the benefits thereof because the crime was committed
after the expiration of the time limit fixed by the amnesty proclamation;: i.e., that the deceased
Arsenio Borjal was executed after the liberation of La Paz, Abra.

In view of the sentence meted by the Court below, the accused Beronilla, Paculdo, Velasco and
Adriatico appealed to this Court.

The records are ample to sustain the claim of the defense that the arrest, prosecution and trial of
the late Arsenio Borjal were done pursuant to express orders of the 15th Infantry Headquarters.
(Exhibits 9 and 12-a), instructing all military mayors under its jurisdiction to gather evidence
against puppet officials and to appoint juries of at least 12 bolomen to try the accused and find
them guilty by two thirds vote. It is to be noted that Arsenio Borjal was specifically named in the
list of civilian officials to be prosecuted (Exhibit 12-b).

In truth, the prosecution does not seriously dispute that the trial and sentencing of Borjal was
done in accordance with instructions of superior military authorities, altho it points to
irregularities that were due more to ignorance of legal processes than personal animosity against
Borjal. The state, however, predicates its case principally on the existence of the radiogram
Exhibit H from Colonel Volckmann, overall area commander, to Lt. Col. Arnold, specifically
calling attention to the illegality of Borjal's conviction and sentence, and which the prosecution
claims was known to the accused Beronilla. Said message is as follows:
"Message:

VOLCKMAN TO ARNOLD CLN UNDERSTAND THAT MUNICIPALITIES OF ABRA

HAVE ORGANIZED JURY SYSTEM PD BELIEVE THAT THIS BODY IS ILLEGAL AND
CANNOT TRY PERSONS FOR ESPIONAGE OR COLLABORATION NOR METE OUT
PUNISHMENTS THEREOF PD SPECIFIC INSTANCE IS BROUGHT TO YOUR
ATTENTION FOR PROPER AND IMMEDIATE ACTION ON ONE ARSENIO BORJAL OF
LA PAZ WHO HAS BEEN TRIED CMA CONVICTED AND SENTENCED TO BE
HANGED PD REPORT ACTION TAKEN BY YOU ON THIS MATTER PD MSG BEGINS
CLN"

(EXH. H)

The crucial question thus becomes whether or not this message, originally sent to Arnold's
quarters in San Esteban, Ilocos Sur, was relayed by the latter to appellant Beronilla in La Paz,
Abra, on the morning of April 18, 1945, together with the package of records of Borjal's trial that
was admittedly returned to and received by Beronilla on that date, after review thereof by Arnold
(Exhibits 8-8-a). Obviously, if the Volckmann message was known to Beronilla, his ordering the
execution of Borjal on the night of April 18, 1945 can not be justified.

We have carefully examined the evidence on this important issue, and find no satisfactory proof
that Beronilla did actually receive the radiogram Exhibit H or any copy thereof. The accused
roundly denied it. The messenger, or "runner", Pedro Molina could not state what papers were
enclosed in the package he delivered to Beronilla on the morning in question, nor could
Francisco Bayquen (or Bayken), who claimed to have been present at the delivery of the
message, state the contents thereof.

The only witness who asserted that Beronilla received and read the Volckmann message, Exhibit
H, was Rafael Balmaceda, a relative of Borjal, who claimed to have been, as Beronilla's
bodyguard, present at the receipt of the message and to have read it over Beronilla's shoulder.
This testimony, however, can not be accorded credence, for the reason that in the affidavit
executed by this witness before Fiscal Antonio of Abra (Exhibit 4), Balmaceda failed to make
any mention of the reading, or even the receipt, of the message. In the affidavit, he stated:
"Q. In your capacity as policeman, do you know of any unusual occurrence that transpired in La
Paz, Abra? - A. Yes, sir.

Q. Will you state what is that event? - A. On April 17, 1945, I was assigned as guard at the
Presidencia where Mayor Arsenio Borjal is confined. On the 18th of April, 1945, six bolomen
came to me while I was on duty as guard, that Mayor Borjal should be tied, on orders of Mayor
Manuel Beronilla. Mayor Borjal wanted to know the reason why he would be tied, as he has not
yet learned of the decision of the jury against him. Mayor Borjal wrote a note to Mayor
Beronilla, asking the reason for his being ordered to be tied. I personally delivered the note of
Borjal to Mayor Beronilla. Mayor Beronilla did not answer the note, but instead told me that I
should tie Mayor Borjal, as tomorrow he would die, as he cannot escape. I returned to the
Presidencia, and Mayor Borjal was tied, as that was the order of Mayor Beronilla."

The plain import of the affidavit is that the witness Rafael Balmaceda was not with Beronilla
when the message arrived, otherwise Beronilla would have given him his orders direct, as he
(Balmaceda) testified later at the trial. Moreover, it is difficult to believe that having learned of
the contents of the Volckmann message, Balmaceda should not have relayed it to Borjal, or to
some member of the latter's family, considering that they were relatives. In addition, Balmaceda
was contradicted by Bayken, another prosecution witness, as to the hatching of the alleged
conspiracy to kill Borjal. Balmaceda claimed that the accused-appellants decided to kill Borjal in
the early evening of April 18, while Bayken testified that the agreement was made about ten
o'clock in the morning, shortly after the accused had denied Borjal's petition to be allowed to
hear mass.

Upon the other hand, Beronilla's conduct belies his receipt of the Volckmann message. Had he
executed Borjal in violation of superior orders, he would not have dared to report it to Arnold's
headquarters on the very same day, April 18th, 1945, as he did (Exhibit 20), half an hour after
the execution. And what is even more important, if Borjal was executed contrary to instructions,
how could Lt. Colonel Arnold on April 22, 1945, write in reply (Exhibits 21, 21-a) "I can only
compliment you for your impartial but independent way of handling the whole case" instead of
berating Beronilla and ordering his court martial for disobedience?
Our conclusion is that Lt. Col. Arnold, for some reason that can not now be ascertained, failed to
transmit the Volckmann message to Beronilla. And this being so, the charge of criminal
conspiracy to do away with Borjal must be rejected, because the accused had no need to conspire
against a man who was, to their knowledge, duly sentenced to death.

The state claims that the appellants held grudges against the late Borjal. Even so, it has been
already decided that the concurrence of personal hatred and collaboration with the enemy as
motives for a liquidation does not operate to exclude the case from the benefits of the Amnesty
claimed by appellants, since then "it may not be held that the manslaughter stemmed from purely
personal motives" (People vs. Barrioquinto,* G. R. Nos. L-2011 and 2267, June 30, 1951).
Actually, the conduct of the appellants does not dispose that these appellants were impelled by
malice (dolo). The arrest and trial of Borjal were made upon express orders of the higher
command; the appellants allowed Borjal to be defended by counsel, one of them (attorney Jovito
Barreras) chosen by Borjal's sister; the trial lasted nineteen (19) days; it was suspended when
doubts arose about its legality, and it was not resumed until headquarters (then in Langangilang,
Abra) authorized its resumption and sent an observer (Esteban Cabanos, of the S-5) to the
proceedings, and whose suggestions on procedure were followed; and when the verdict of guilty
was rendered and death sentence imposed, the records were sent to Arnold's headquarters for
review, and Borjal was not punished until the records were returned eight days later with the
statement of Arnold that "whatever disposition you make of the case is hereby approved"
(Exhibit 8), which on its face was an assent to the verdict and the sentence. The lower Court,
after finding that the late Arsenio Borjal had really committed treasonable acts, (causing soldiers
and civilians to be tortured, and hidden American officers to be captured by the Japanese)
expressly declared that "the Court is convinced that it was not for political or personal reason
that the accused decided to kill Arsenio Borjal" (Decision, p. 9; Record, p. 727).It appearing that
the charge is the heinous crime of murder, and that the accused-appellants acted upon orders, of a
superior officers that they, as military subordinates, could not question, and obeyed in good faith,
without being aware of their illegality, without any fault or negligence on their part, we can not
say that criminal intent has been established (U. S. vs. Catolico, 18 Phil., 507; Peo. vs. Pacana,
47 Phil., 48; Sent. of the Tribunal Supremo of Spain, 3 July 1886; 7 January 1901; 24 March
1900; 21 Feb. 1921; 25 March 1929). Actus non facit reum nisi mens sit rea.
"To constitute a crime, the act must, except in certain crimes made such by statute, be
accompanied by a criminal intent, or by such negligence or indifference to duty or to
consequences, as, in law, is equivalent to criminal intent. The maxim is, actus non facit reum,
nisi mens rea-a is not committed if the mind of the person performing the act complained of be
innocent." (U. S. vs. Catolico, 18 Phil., 507)

But even assuming that the accused-appellants did commit the crime with which they are
charged, the Court below should not have denied their claim to the benefits of the Guerrilla
Amnesty Proclamation No. 8 (42 Off. Gaz., 2072) of the ground that the slaying of Arsenio
Borjal took place after actual liberation of the area from enemy control and occupation. The
evidence on record regarding the date of liberation of La Paz, Abra, is contradictory. The
Military Amnesty Commission that decided the case of one of the original accused, Jesus
Labuguen, held that La Paz, Abra, was liberated on July 1, 1945, according to its records; and
this finding was accepted by Judge Letargo when he dismissed the case against said accused on
March 15, 1949. On the other hand, Judges Bocar and Hilario, who subsequently took
cognizance of the case, relied on Department Order No. 25, of the Department of the Interior,
dated August 12, 1948, setting the liberation of the Province of Abra on April 4, 1945, fifteen
days before Borjal was slain. The two dates are not strictly contradictory; but even if they are, we
believe these appellants should be given the benefit of the Presidential directive to the Amnesty
Commissions (Adm. Order No. 11, of October 2, 1946) that "any reasonable doubt as to whether
a given case falls within the (amnesty) proclamation shall be resolved in favor of the accused"
(42 Off. Gaz., 2360), as was done in People vs. Gajo, 84 Phil., 107, 46 Off. Gaz., (No. 12) p.
6093.

For the reasons stated, the judgment appealed from is reversed and the appellants are acquitted,
with costs de oficio.

Paras, C. J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo and
Concepcion, JJ., concur.