G.R. No.

182750 January 20, 2009

RODEL URBANO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VELASCO, JR., J.:

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

The Facts

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

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

EXTERNAL FINDINGS:

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

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

C- No lacerations noted.

INTERNAL FINDINGS:

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

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

CAUSE OF DEATH:

Cardio-respiratory arrest secondary to cerebral concussion with resultant cerebral hemorrhage due to
mauling incident.

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

CONTRARY to Article 249 of the Revised Penal Code.

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

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

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

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

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

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

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

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

The Ruling of the RTC

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

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

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

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

The Ruling of the CA

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

WHEREFORE, in the light of the foregoing, the appeal of the accused-appellant is DISMISSED. The decision
appealed from is AFFIRMED with MODIFICATION that an award of P50,000.00 moral damages is GRANTED.
Remand of the records should immediately follow finality for the consequent execution of the decision.5

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

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

The Issues

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

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

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

The Court’s Ruling

The petition is partly meritorious.

Homicide Duly Proved

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

We are not persuaded.

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

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

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

The CA observed aptly:

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

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

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

Mitigating Circumstances Present

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

On this score, we agree with petitioner.

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

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

xxxx

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

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

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

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

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

In gist, petitioner testified being, in the afternoon of September 28, 1993, in the nearby town of Bugallon for a picnic.
He was with Tomelden and several others, including Dominador Navarro, Chairperson of LIWAD. At a restaurant in
Bugallon, the group ordered goat’s meat and drank beer. When it was time to depart, Navarro asked petitioner to
inform Tomelden, then seated in another table, to prepare to leave.

When so informed, Tomelden insulted petitioner, telling the latter he had no business stopping him from further
drinking as he was paying for his share of the bill. Chastised, petitioner returned to his table to report to Navarro. At
that time, petitioner saw that Tomelden had already consumed 17 bottles of beer. In all, the group stayed at the
picnic place for three and a half hours before returning to the LIWAD.

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

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

PROSECUTOR CHIONG

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

WITNESS

A They exchanged angry words, sir.

Q What were these words?

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

Q And what was the reply if any?

A ‘Akina tua lanti".

PROS. CHIONG

Q Who said that?

WITNESS

A It was Brigido Tomelden, sir.

Q And what transpired next?

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

Q Who said that?

A Brigido Tomelden said.

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

A Yes, sir.

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

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

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

A Yes, sir.
Q And the accused refused to accept the challenge?

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

Q But finally the fist fight took place?

A Yes, sir.18

PROS. CHIONG

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

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

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

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

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

A Yes, sir.19 (Emphasis added.)

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

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

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

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

xxxx

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

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

We find no reason to modify the award of civil indemnity and moral damages.

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

No pronouncement as to costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CONCHITA CARPIO MORALES DANTE O. TINGA

Associate Justice Associate Justice

ARTURO D. BRION
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.

LEONARDO A. QUISUMBING
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.

REYNATO S. PUNO
Chief Justice

Footnotes

1Rollo, pp. 86-101. Penned by Associate Justice Apolinario D. Bruselas, Jr. and concurred in by Associate
Justices Bienvenido L. Reyes and Monina Arevalo Zenarosa.

2 Id. at 51-60. Penned by Judge Dionisio C. Sison.

3 Id. at 89.

4 Supra note 2, at 59-60.

5 Supra note 1, at 100.

6 Art. 249. Homicide.––Any person who, not falling within the provisions of Art. 246, shall kill another without
the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty
of homicide and be punished by reclusion temporal.

7 Rollo, p. 110.

8 Id. at 17.

9 Id. at 18.

10 Id. at 19.

11 Supra note 1, at 96-97.

Navarro v. Court of Appeals, G.R. No. 121087, August 26, 1999, 313 SCRA 153, 166; citing Pepito v. CA,
12

G.R. No. 119942, July 8, 1999, 310 SCRA 128.

Cano v. People, G.R. No. 155258, October 7, 2003, 413 SCRA 92, 105; citing 1 Aquino, Revised Penal
13

Code 116 (1997).

14 Navarro, supra; citing People v. Nabora, 73 Phil. 434 (1941).

15 Id.; citing People v. Paga, No. L-32040, October 25, 1977, 79 SCRA 570.

16 Cano, supra note 13; citing 1 L.B. Reyes, The Revised Penal Code 179-180 (14th revised ed., 1998).

17 TSN, November 25, 1998, pp. 6-7.

18 TSN, December 1, 1998, p. 4.

 19 TSN, January 31, 2000, pp. 21-22.

20 No. L-30489, June 30, 1975, 64 SCRA 659.

21 Supra note 12.

G.R. No. 155094 January 30, 2007

MANUEL O. ORIENTE, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

For review before the Court are the Decision1 dated February 14, 2002 of the Court of Appeals (CA) which affirmed
the Decision of the Regional Trial Court of Quezon City, Branch 103 (RTC), dated November 15, 1999, in Criminal
Case No. 96-65313, finding Manuel Oriente (petitioner) guilty of the crime of Homicide; and the CA
Resolution2 dated September 9, 2002 which denied petitioner’s Motion for Reconsideration.

An Information dated March 18, 1996 was filed with the RTC charging the petitioner with the crime of Murder,
committed as follows:

That on or about the 16th day of March 1996, in Quezon City, Philippines, the said accused conspiring,
confederating with three other persons whose true names and whereabouts have not as yet been ascertained and
mutually helping one another, with intent to kill, qualified by evident premeditation and treachery, taking advantage
of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and employ personal
violence upon the person of one ROMULO CARIÑO Y VALLO by then and there hitting him with a lead pipe on the
different parts of his body thereby inflicting upon him serious and mortal wounds which were the direct and
immediate cause of his death, to the damage and prejudice of the heirs of the victim.

CONTRARY TO LAW.3

Upon arraignment, petitioner pleaded not guilty to the crime charged. Thereafter, trial on the merits ensued.

The evidence presented by the parties, as summarized by the CA, are as follows:

The prosecution’s version of the case is as follows:

On 16 March 1996, at around 10:00 o’clock in the evening, Arnel Tanael was on his way to the house of Romulo
Cariño y Vallo at No. 40 Lukban Street, Area 9, Luzon Avenue, Brgy. Pasong Tamo, Tandang Sora, Quezon City.
He passed in front of the house of [petitioner] Manuel Oriente and saw the latter and his companions having a
drinking spree at the terrace of the [petitioner’s] house. He arrived at Romulo’s house where the latter was drinking
beer alone. Thereafter, Romulo went out of the house to buy cigarette. While watching television in the house of
Romulo, Arnel Tanael heard two gunshots. Hence, he rushed outside the house to check on what the gunshots
were all about.

Peeping through potted plants (about 3 feet high) perched on top of a neighbor’s fence (about 2 feet high), and at a
distance of more or less eight (8) meters, he saw Romulo Cariño, [petitioner] Manuel Oriente, the latter’s daughter
Marilou Lopez and the latter’s husband, Paul Lopez and one Rogelio Gascon arguing along the alley beside the
concrete fence in front of Manuel Oriente’s house where there was a lighted fluorescent light. He heard Paul Lopez
telling Romulo Cariño, "Ikaw Cariño, and liit-liit mo, and yabang mo!" Then Arnel Tanael saw Marilou coming out
from their house with a lead pipe and handed it over to Paul. Paul then hit Romulo with a lead pipe at his right arm.
Accused-appellant got the lead pipe from Paul and hit Romulo on his left eyebrow. Romulo reeled and fell down.
Upon seeing Romulo fall down, Arnel got confused, hence, he went back inside the house and switched off the light
and turned the television off. He went outside again and saw Romulo moaning. At this point, Paul Lopez was
already poking a gun at Romulo, then pulled the trigger twice but the gun did not fire. Arnel then shouted, "Putang
ina ninyo, bakit niyo ginagawa iyan sa bayaw ko, bakit ninyo ginaganito siya, ano ba ang kasalanan niya sa inyo."
Oriente and his company did not say anything. Arnel carried Romulo and brought the latter inside the house. He
called up Mario at the Panabuilt Transport office to get a cab. When the cab arrived, Romulo Cariño was brought by
Arnel to the East Avenue Medical Center where Romulo, two hours after, passed away.

Dr. Roberto Garcia, the NBI Medico-Legal Officer who conducted the post-mortem examination on the victim’s
cadaver declared that the cause of death of Romulo Cariño was traumatic head injury. He opined that even with
immediate and adequate medical attendance, the victim would not have survived due to the extensive nature of
hemorrhage suffered by Romulo.

In an attempt to exculpate [the petitioner], the defense gave the following version:

On the night of the commission of the crime, [petitioner] Manuel Oriente was fetched by Tanod members in their
area to attend a wake. It was already the Tanods’ off-duty. While he was on his way out of the house, he saw
spouses Paul and Malou and his granddaughter inside the car going out of the garage. The three went to visit
Malou’s in-laws.

At the gate of his house, while having a conversation with the Tanod members who fetched him, they heard two
gunshots coming from downhill. They noticed that the person who fired the shots was walking towards them. They
waited for him to pass by. This person was Romulo Cariño. When the latter reached a store, which is a fence away
from Oriente’s house, the latter asked Romulo what was his problem. Suddenly, Cariño extended his arms and
poked [his] gun to Oriente and his companions. Romulo told them not to get near him or he will shoot and kill all of
them. Surprised by the victim’s response and for fear of being shot, [petitioner] Oriente stepped back towards his
yard and was able to take hold of a piece of wood and hit Romulo. [Petitioner] Oriente mentioned that he does not
know if he hit Cariño’s hands, eyebrow and other parts of his body with that single blow but he saw Romulo Cariño
lose his balance, fall and hit his head on the ground. The victim was still holding the gun. After five seconds, Romulo
Cariño stood up and ran (pasuray-suray) towards the direction of his house. Fearing that Cariño will shoot them if
they would go after him, [petitioner] Oriente told the Tanods that they will just attend to him the following day.
[Petitioner] Oriente further testified that he had no intention of killing Cariño and that his purpose was only to disarm
him.4

The RTC rendered a Decision dated November 4, 1999 convicting the petitioner of the crime of Homicide. The
dispositive portion of the Decision states:

ACCORDINGLY, the court renders judgment finding the accused MANUEL ORIENTE Y ORILLO GUILTY beyond
reasonable doubt as Principal of the crime of HOMICIDE as defined and penalized by the Revised Penal Code with
two (2) mitigating circumstances of lack of intent to commit so grave a wrong and sufficient provocation and so he is
hereby sentenced to suffer a jail term of Six (6) Months of Arresto Mayor as minimum and Four Years and One (1)
Day of Prision Correctional as maximum.

On the civil aspect, the accused Manuel Oriente y Orillo is ordered to pay the lawful heirs of the victim Romulo
Carino y Orillo the sum of P41,500.00 as actual damages and P50,000.00 as indemnification damages.

Costs against the accused.

SO ORDERED.5

However, on November 12, 1999, before the foregoing judgment became final and executory, the RTC issued an
Order motu proprio setting aside the said judgment because of a mistake in the "judgment proper" and requiring
both petitioner and his counsel to appear before the court on November 17, 1999.6

On the latter date, the RTC promulgated its second Decision dated November 15, 1999, the dispositive portion of
which states:
ACCORDINGLY, the court renders judgment finding the accused MANUEL ORIENTE y Orillo GUILTY beyond
reasonable doubt as Principal of the crime of HOMICIDE as defined and penalized by the Revised Penal Code with
two (2) mitigating circumstances of lack of intent to commit so grave a wrong and sufficient provocation and so,
applying Article 64, paragraph 5, of the Revised Penal Code and also the Indeterminate Sentence Law, [the]
accused is hereby sentenced to suffer an indeterminate jail term of Four (4) Years, Two (2) Months and One (1) Day
of Prision Correccional as minimum and Eight (8) Years and One (1) Day of Prision Mayor as maximum.

On the civil aspect, the accused Manuel Oriente y Orillo is ordered to pay the lawful heirs of the victim Romulo
Cariño y Vallo the sum of P41,500.00 as actual damages and P50,000.00 as indemnification damages.

Costs against the accused.

SO ORDERED.7 (Emphasis supplied)

The RTC found that the testimonies of the defense witnesses, including the petitioner, are incredible; that the victim
suffered extensive head injuries; that the defense failed to show any imminent threat or danger to the life of the
accused; that the accused has in his favor the mitigating circumstance of lack of intent to commit so grave a wrong
under Article 4 of the Revised Penal Code; that there was sufficient provocation on the part of the victim since the
incident was preceded by an intense argument, and, therefore, the provocation qualifies as another mitigating
circumstance in favor of the petitioner; that treachery is not present since there was an altercation immediately
preceding the incident; that the prosecution failed to prove the elements of evident premeditation; that there is no
clear showing that the accused took advantage of superior strength; and, finally, that the prosecution duly proved
actual damages amounting to P38,500.00 for the funeral services and P3,000.00 for the cemetery lot and religious
services, while the other expenses were not supported by evidence.

The petitioner appealed to the CA. On February 14, 2002, the CA rendered its Decision, the dispositive portion of
which states:

WHEREFORE, in view of the foregoing, the decision dated 4 November 1999 rendered by the trial court is hereby
AFFIRMED with MODIFICATION that the penalty imposed is an indeterminate prison term of six (6) years and one
(1) day of prision mayor as minimum to twelve (12) years and one (1) day of reclusion temporal as
maximum, and to indemnify the heirs of the deceased Romulo Cariño y Vallo in the amount of Fifty Thousand
(P50,000.00) Pesos.

SO ORDERED.8 (Emphasis supplied)

The CA held that there is no cogent reason to depart from the findings of the RTC convicting the petitioner; that, at
most, the inconsistencies of prosecution witness Arnel Tanael refer to minor details only, which tend to strengthen,
rather than weaken, his credibility, and, moreover, prove that his testimony was unrehearsed; that, all in all, the
testimonies of the prosecution witnesses are highly credible; that the evaluation of the testimonies of the
eyewitnesses by the RTC should be accorded great weight and respect; that the testimony of Tanael on the injuries
inflicted on the victim is supported by the findings of the NBI medico-legal officer as stated in the post mortem
report; that the detailed testimony of a witness in homicide cases acquires greater weight and credibility if it
corresponds with the autopsy report; that the mere fact that the judge who penned the decision was not the same
judge who heard the testimonies of the witnesses does not ipso facto render the decision erroneous, more so when
the judgment appears to be fully supported by the evidence on record; that the alleged act of the victim poking the
gun at the petitioner and his companions does not constitute unlawful aggression, an essential requirement for self-
defense, since the mere aiming of the gun and threat to kill merely constitute a threat or intimidating attitude which
does not amount to an actual and unexpected attack or imminent danger thereof; and that the accused did not resist
but went peacefully with the police authorities when the latter invited the petitioner to the station does not amount to
voluntary surrender.

Finding that the RTC erred in finding that two mitigating circumstances were present, namely, lack of intent to
commit so grave a wrong and sufficient provocation or threat on the part of the offended party immediately
preceding the act, the CA modified the penalty imposed by the RTC. According to the CA, the extensive nature of
the injuries as stated in the post-mortem findings negates the contention of the petitioner that he had no intention of
killing the victim because his purpose was only to disarm him; and the provocation, if any, done by the victim was
not immediate to the act of petitioner’s beating the victim, since a certain Paul Lopez had already previously
assaulted the victim, and, moreover, there was a sufficient interval of time between the provocation of the offended
party and the commission of the crime by the petitioner.

Hence, herein petition for review raising the following assignment of errors:

A.

THE HON. COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT
THAT THE ACCUSED IS GUILTY OF HOMICIDE ALTHOUGH IT WAS OBVIOUS THAT THE LOWER COURT
FOUND OUT THAT THERE WAS NO INTENT ON THE PART OF THE PETITIONER TO COMMIT SAID CRIME
AND THERE WAS NO PROVOCATION AT ALL ON HIS PART;

B.

THE HON. COURT OF APPEALS AND THE REGIONAL TRIAL COURT BELOW ERRED IN NOT APPRECIATING
THAT THERE WAS AN UNLAWFUL AGGRESSION ON THE PART OF THE VICTIM, AND THE MEANS
EMPLOYED BY PETITIONER TO PREVENT THE SAME WAS REASONABLE AND FALLS UNDER THE
JUSTIFYING CIRCUMSTANCES OR SELF-DEFENSE;

C.

THE HON. COURT OF APPEALS AND THE LOWER COURT GRAVELY ERRED IN GIVING CREDENCE TO THE
TESTIMONY OF THE LONE ALLEGED EYE WITNESS, WHEN SAID TESTIMONY HAS FULL OF
INCONSISTENCIES; AND

D.

THE HON. COURT OF APPEALS HAS COMMITTED GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK
OF JURISDICTION WHEN IT MODIFIED THE DECISION OF THE REGIONAL TRIAL COURT, INCREASING THE
PENALTY THEREOF WITHOUT ANY DISCUSSION OR EXPLANATION IN THE DECISION ITSELF WHY SAID
MODIFICATION OF PENALTY IS NECESSARY AND IN ACCORDANCE WITH LAW.

The Court affirms the conviction of the petitioner except as to damages and the penalty imposed.

The petitioner emphasizes that the victim, allegedly a troublemaker in the vicinity, was drunk, fired his gun twice,
and then proceeded towards the petitioner and his companions. Petitioner argues that the victim’s act of poking the
gun at him constitutes unlawful aggression sufficient to warrant his claim of self-defense.

The Court is not convinced.

When self-defense is invoked, the burden of evidence shifts to the accused to show that the killing was legally
justified. Having owned the killing of the victim, the accused should be able to prove to the satisfaction of the Court
the elements of self-defense in order to avail of this extenuating circumstance. He must discharge this burden by
clear and convincing evidence. When successful, an otherwise felonious deed would be excused, mainly predicated
on the lack of criminal intent of the accused.

Self-defense requires that there be (1) an unlawful aggression by the person injured or killed by the offender, (2)
reasonable necessity of the means employed to prevent or repel that unlawful aggression, and (3) lack of sufficient
provocation on the part of the person defending himself. All these conditions must concur.9 There can be no self-
defense, whether complete or incomplete, unless the victim had committed unlawful aggression against the person
who resorted to self-defense.10

Unlawful aggression, a primordial element of self-defense, would presuppose an actual, sudden and unexpected
attack or imminent danger on the life and limb of a person – not a mere threatening or intimidating attitude – but
most importantly, at the time the defensive action was taken against the aggressor.11 To invoke self-defense
successfully, there must have been an unlawful and unprovoked attack that endangered the life of the accused, who
was then forced to inflict severe wounds upon the assailant by employing reasonable means to resist the attack.12
The petitioner’s plea of self-defense contradicts common knowledge and experience. No better test has yet been
found to measure the value of a witness’ testimony than its conformity to the knowledge of mankind.13

The Court agrees with the findings of the RTC which are supported by the evidence on record:

The testimonies of the defense witnesses, including the accused, that Cariño threatened the persons gathered in
front of Oriente’s house with a gun is quite difficult to believe in view of the admissions of the same defense
witnesses, including the accused, that Cariño was able to get up from the ground after being hit and ran away with
gun in hand. A person who was already threatening to kill with a gun and who was then hit with a piece of wood in a
serious manner, can be reasonably expected to make use thereof. Here, the defense makes a rather unusual claim
that Cariño simply ran away and did not use the gun he was holding while running.

The testimony of Arnel Tanael that Cariño did not run away but he got him at the place where he fell in the alley
beside Oriente’s house appears more credible and reasonable than that of the defense.

Moreover, considering the extensive injuries suffered by Cariño – several contusions on the face and head fractures
– it is doubtful that a person in that condition, aggravated by what the defense claimed to be Cariño’s state of stupor
(drunk and "pasuray-suray"), could still run, much less hold a handgun while running.

In his testimony, the accused stated that Cariño walked towards him and his companions saying: "Don’t come near
me. I will shoot all of you. I will kill all of you." In the first place, why will Cariño utter such statements when there
was no evidence by the defense that the accused and/or any of his companions at that time – 10:00 in the evening
of March 16, 1996 – and place – in front of the house of the accused at Brgy. Pasong Tamo, Q.C. – were in the act
of arresting Cariño. In the second place, the alleged statement of Cariño: "Don’t come near me," shows that there
were then persons in the act of going near him. In the third place, if indeed as claimed, Cariño was poking his gun
with both arms extended at Oriente and his Tanod-companions, it is quite difficult to appreciate how he could not
have seen the person in the act of hitting him right across his face and, as he allegedly threatened, how he could not
have shot that person too[,] instinctive self-defense[,] instead of running away with gun in hand.14

Not that the RTC is alone. The CA, too, aptly observed:

x x x We find the testimony of [defense] witnesses highly incredible. Their version is that Cariño, after he was hit
with the lead pipe, fell on the ground still holding a gun. Thereafter, he just stood up and ran away. It is surprising,
however, why these Tanod members including accused-appellant did not wrestle for the gun when they had all the
opportunities to do so when Cariño fell down, if there was indeed a threat to their life and limb. And letting an armed
man go would not be the normal reaction of persons in charge of peace and order in the community, especially if the
armed man had previously threatened to shoot them. The only logical conclusion is that Cariño was not a threat to
them and to their community, for as accused-appellant testified, "they will just deal with him the following day."15

Noteworthy is the testimony of NBI Medico-Legal Officer, Dr. Roberto Garcia, on his findings from his post-mortem
examination of the cadaver of the victim that the cause of death was traumatic head injury, viz:

1. abrasion, right forearm;

2. contused-abrasion, left temple;

3. lacerated wounds above the left eyebrow; over the left eyebrow;

4. hematomas orbital, left. Scalp frontal region, left side;

5. fractures, skull

6. hemorrhages: extensive

7. visceral organs, congested.16

On cross-examination, Dr. Garcia opined that even with immediate and adequate medical attendance, the victim
would not have survived considering the extensive nature of the hemorrhages found.17 As the RTC held:

[C]onsidering the extensive injuries suffered by the victim – several contusions on the face and head fractures – it is
doubtful that a person in that condition, aggravated by what the defense claimed to be Cariño’s state of stupor
(drunk and "pasuray-suray"), could still run, much less hold a handgun while running.18

Thus, the defense failed to establish the existence of the gun being pointed at petitioner to constitute unlawful
aggression on the part of the victim.

While petitioner avers that the testimony of Arnel Tanael is burdened with improbabilities and inconsistencies, after
having owned the crime, however, the burden of proof is reversed and, therefore, he cannot simply protest that the
evidence of the prosecution is weak. It then becomes incumbent upon petitioner to rely on the strength of his own
evidence and not on the weakness of the evidence of the prosecution, for even if the latter were weak, it could not
be disbelieved after he had admitted the killing. Hence, if the accused fails to discharge the burden of proof, his
conviction must ensue as a matter of consequence.19

The petitioner insists that the CA erred in modifying the RTC’s decision by increasing the penalty imposed upon him.
It is settled that in a criminal case, an appeal throws the whole case

open for review, and it becomes the duty of the appellate court to correct such errors as may be found in the
judgment appealed from, whether they are made the subject of assignment of errors or not,20 including the propriety
of the imposable penalty.21

There is also no point in considering petitioner’s argument that the RTC promulgated two decisions and, by doing
so, he was placed in double jeopardy.

Courts have the inherent power to amend their decisions to make them conformable to law and justice. This
prerogative, however, is not absolute. The rules do not contemplate amendments that are substantial in
nature.22 They merely cover formal changes or such that will not affect the crux of the decision, like the correction of
typographical or clerical errors. Courts will violate due process if they make substantial amendments in their
decisions without affording the other party the right to contest the new evidence presented in a motion for
reconsideration.23 The Court finds that the change in the penalty by the RTC in the instant case did not involve the
consideration of any new evidence but a mere "correction" of the penalty imposed to conform with the Revised
Penal Code and The Indeterminate Sentence Law.

And as the Solicitor General correctly noted, the trial court modified the penalty in its Decision dated November 15,
1999 before the petitioner could perfect his appeal from the first Decision dated November 4, 1999 which was
promulgated on November 10, 1999. Noteworthy is that it was the RTC’s second Decision dated November 15,
1999 which the petitioner elevated on appeal to the CA. It is well settled that when an accused appeals from the
sentence of the trial court, he waives the constitutional safeguard against double jeopardy, and, as discussed
above, throws the whole case open to the review of the appellate court, which is then called to render judgment as
the law and justice dictate, whether favorable or unfavorable, and whether they are made the subject of assigned
errors or not. This precept should be borne in mind by every lawyer of an accused who unwittingly takes the risk
involved when he decides to appeal his sentence.24

As to the mitigating circumstances, the CA is correct in finding that the RTC erred in appreciating in favor of the
petitioner the mitigating circumstances of lack of intent to commit so grave a wrong and sufficient provocation on the
part of the victim, Romulo Cariño.

On the first circumstance, the RTC held:

According to the accused, he did not intend to kill Cariño. In turn, Cariño did not die immediately from his wounds as
he still lived for around two (2) hours after his body was taken to the hospital. This fact and the fact that Cariño was
hit by a hard, blunt object, convince [sic] this court that the intent of the accused to kill Cariño appears to be
reasonably doubtful. . . .25
However, the CA correctly took into consideration the post-mortem findings of the NBI medico-legal expert and his
testimony that even with immediate and adequate medical attendance, the victim would not have survived due to
the extensive nature of the hemorrhage suffered by the victim. The brute force employed by the petitioner
contradicts the claim that he had no intention to kill the victim. The mitigating circumstance of lack of intent to
commit so grave a wrong as that actually perpetrated cannot be appreciated where the acts employed by the
accused were reasonably sufficient to produce and did actually produce the death of the victim.26

On the second circumstance, the RTC pointed to the fact that the incident was preceded by an intense argument
between the victim and the accused so as to qualify the situation as a mitigating circumstance of sufficient
provocation or threat on the part of the offended party which immediately preceded the act.27

Provocation is defined to be any unjust or improper conduct or act of the offended party, capable of exciting, inciting,
or irritating anyone. In order to be mitigating, provocation must be sufficient and should immediately precede the act.
Provocation is sufficient if it is adequate to excite a person to commit the wrong, which must accordingly be
proportionate in gravity. That the provocation must immediately precede the act means that there should not be any
interval of time between the provocation by the offended party and the commission of the crime by the person
provoked.28

The fact that a heated or intense argument preceded the incident is not by itself the sufficient provocation on the
part of the offended party as contemplated by law. Moreover, petitioner failed to establish by competent evidence
that the victim had a gun and used it to threaten petitioner.

With respect to the other aggravating circumstances of treachery, evident premeditation, and grave abuse of
superior strength, the Court likewise agrees with the findings of the RTC, as affirmed by the CA, that none of these
circumstances are present for lack of evidence.

Thus, the CA is partly correct in modifying the penalty imposed by the RTC. The RTC imposed an indeterminate
prison term of four (4) years, two (2) months and one (1) day of prision correccional as minimum to eight (8) years
and one (1) day of prision mayor as maximum, while the CA adjusted the sentence upwards since no mitigating
circumstances attended the crime, and imposed an indeterminate prison term of six (6) years and one (1) day
of prision mayor as minimum to twelve (12) years and one (1) day of reclusion temporal as maximum. Article 249 of
the Revised Penal Code provides that any person found guilty of homicide shall be punished by reclusion
temporal, i.e., twelve (12) years and one (1) day to twenty (20) years. Applying Section 1 of the Indeterminate
Sentence Law, the minimum term of the sentence shall be within the range of the penalty next lower, which
is prision mayor, i.e., anywhere between six (6) years and one (1) day to eight (8) years. The CA appropriately
exercised its discretion when it imposed six (6) years and one (1) day of prision mayor as the minimum term.

However, the CA erred in imposing twelve (12) years and one (1) day of reclusion temporal as the maximum term of
the indeterminate sentence. In the computation of the maximum term, the law prescribes that the attending
circumstances should be considered. There being no aggravating or mitigating circumstance in this case, the
penalty that should be imposed is the medium period of the penalty prescribed by law,29 that is, reclusion temporal in
its medium period, or, anywhere between fourteen (14) years, eight (8) months and one (1) day to seventeen (17)
years and four (4) months.

And last, the CA, without reason, omitted a portion of the award of damages by the RTC in the civil aspect of the
case, namely, the amount of actual damages which comprised the expenses for the cemetery lot and religious
services. In particular, the RTC held that the prosecution was able to prove actual damages amounting
to P41,500.00 based on supporting evidence,30 in addition to the death indemnity of P50,000.00 as required by
current jurisprudence.31 On the other hand, the dispositive portion of the CA judgment merely ordered petitioner to
indemnify the heirs of the deceased victim in the amount of P50,000.00.

The Court restores the full amount of actual damages originally awarded by the RTC.

Moral damages are not awarded for lack of basis in fact and law.32 No witnesses testified to prove the existence of
the factual basis therefor.
Pursuant to Article 2230 of the Civil Code, in criminal offenses, exemplary damages may be imposed when the
crime is committed with one or more aggravating circumstances. Considering that no aggravating circumstance is
present in this case, the lower courts are correct in not awarding exemplary damages.

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals
are AFFIRMED with MODIFICATION. The petitioner is found GUILTY beyond reasonable doubt of Homicide and is
sentenced to suffer the penalty of an indeterminate sentence of six (6) years and one (1) day of prision mayor as
minimum to fourteen (14) years, eight (8) months, and one (1) day, as maximum. The petitioner is further ordered to
pay the heirs of the victim the amounts of P50,000.00 as death indemnity and P41,500.00 as actual damages.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

ROMEO J. CALLEJO, SR. MINITA V. CHICO-NAZARIO

Associate Justice Asscociate Justice

ATTESTATION

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

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it is hereby
certified that the conclusions in the above Decision were reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

1Penned by Associate Justice Perlita J. Tria Tirona, with Associate Justices Eubulo G. Verzola and
Bernardo P. Abesamis, concurring.

2 Rollo, p. 9.

3 Records, Vol. I, p. 1.

4 CA Rollo, pp. 207-208.

5 Records, Vol. II, p. 394.

6 Id. at 395.

7 Id. at 407.

8 Rollo, p. 20.

9 People v. Dagani, G.R. No. 153875, August 16, 2006.

10 People v. Catbagan, G.R. Nos. 149430-32, February 23, 2004, 423 SCRA 535, 556.

11 People v. Dagani, supra; People v. Dela Cruz, 400 Phil. 872, 878 (2000).

12 People v. Dagani, supra note 9; People v. Escarlos, 457 Phil. 580, 596 (2003).

13 People v. Venerable, 352 Phil. 623, 632 (1998).

14 Rollo, p. 72.

15 Id. at 18.

16 Id. at 66-67.

17 Id. at 67.

18 Id. at 72.

19 People v. Paulino, G.R. No. 148810, November 18, 2003, 416 SCRA 122, 127.

20 People v. Flores, Jr., 442 Phil. 561, 569 (2002).

21 See Cadua v. Court of Appeals, 371 Phil. 627, 648 (1999).

22Cansino v. Court of Appeals, 456 Phil. 686, 692 (2003); Unidad v. Court of Appeals, 447 Phil. 96, 109
(2003).

23 Cansino v. Court of Appeals, id. at 692.

24 People v. Rondero, 378 Phil. 123, 143 (1999).

25 Rollo, p. 72.

26People v. Isleta, 332 Phil. 410, 427-428 (1996). See People v. Francisco, 388 Phil. 94, 126 (2000); People
v. Gonzales, Jr., 411 Phil. 893, 925 (2001).

27 Revised Penal Code, Art. 13, par. 14.

28 Navarro v. Court of Appeals, 372 Phil. 21, 36 (1999).

29 Revised Penal Code, Art. 64, par. 1.

30 Exhibits "L," "M-1" and "M-2"; Records, Vol. I, pp. 94, 109-110.

31 See People v. Dagani, supra note 9.

 32 See Civil Code, Arts. 2217-2220, 2229-2235.

G.R. No. 168051 September 27, 2006

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
HONORATO C. BELTRAN, JR., accused-appellant.

CHICO-NAZARIO, J.:

Murder is one of the instances when man descends to a level lower than that of the beast, for it is non-instinctive
killing, a deliberate destruction of a member of the same species for reasons other than survival.1

This is an appeal from the Decision of the Court of Appeals in CA-G.R. CR No. 00755, dated 31 March
2005,2 affirming with modifications the Decision of the Regional Trial Court (RTC) of Pallocan, Batangas City,
Branch 4, in Criminal Case No. 10525, dated 9 October 2001,3 convicting the accused-appellant Honorato C.
Beltran, Jr., alias Jun-Jun and Junior, of the crime of murder, sentencing him to suffer the penalty of reclusion
perpetua, and ordering him to pay the heirs of deceased Norman H. Concepcion, the amount of P75,000.00 as
moral damages, P50,000.00 as civil indemnity, and P18,252.00 as actual damages.

On 3 November 1999, appellant was indicted in an Information4 for Murder allegedly committed as follows:

That on or about October 25, 1999 at around 10:00 o'clock in the evening at Velasquez Road, Brgy. Sta.
Rita, Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, while armed with a bolo, a deadly weapon, with intent to kill and with the qualifying circumstance of
treachery, did then and there, willfully, unlawfully and feloniously attack, assault and hack with the said bolo,
suddenly and without warning one Norman Concepcion y Habla while the latter was unarmed and
completely defenseless, thereby hitting him on the different parts of his body, which directly caused the
victim's death.

When arraigned on 9 November 1999, appellant pleaded "Not Guilty" to the charge therein.5 Thereafter, trial on the
merits ensued.

The prosecution established its case through the testimonies of its witnesses, namely: Ever D. Sales, Rolando G.
Dalisay, Dr. Dinah R. Lucero, SPO1 Julian M. de Castro and Normita H. Concepcion. Their testimonies are
summarized as follows:

Ever D. Sales (Ever) was a resident of Velasquez Subdivision, Barangay Sta. Rita, Batangas City. He worked as a
gasoline boy in Caltex Gasoline Station at San Pascual, Batangas City.

Ever testified that on 25 October 1999, at about 10:00 in the evening, he left his workplace and proceeded home
using his bicycle. While traversing the Velasquez Road, he saw appellant holding a bolo and standing in front of his
house situated at the side of Velasquez Road. On the opposite side of the same road, he saw Norman H.
Concepcion (Norman) standing in front of an automobile repair shop. Exhausted by the travel, Ever decided to stop
by and rest momentarily at a nipa hut near the same road. Minutes later, he saw appellant, from a distance of six
meters, stalking Norman who was then walking near the automobile shop. Appellant approached Norman, and,
without a warning, hacked him with a bolo. Norman tried to avoid the blow by moving backwards and shielding his
face with his left arm. However, Norman's left hand was hit and wounded by the bolo. When Norman turned around
and ran, appellant hacked him at the back causing him to fall down on a grassy area. Appellant repeatedly hacked
Norman with a bolo.

Fearing for his own safety, Ever immediately left the nipa hut and sought help in a nearby sari-sari store. Later, he
went to the crime scene and found no trace of appellant. He also discovered the bloodied and lifeless body of
Norman sprawled on the ground. Afterwards, he proceeded home and narrated to a relative named Renato Sales
(Renato) what he just witnessed. Later, Renato informed a certain Carmina Baliwag of the incident, who in turn,
relayed the same to Normita Concepcion (Normita), the sister of Norman. Ever also declared that he did not know of
any reason why appellant hacked Norman to death.6

Rolando G. Dalisay (Rolando) is a resident of Velasquez Subdivision, Barangay Sta. Rita, Batangas City, where he
is engaged in a carpentry business.

Rolando supported the testimony of Ever by stating that on 25 October 1999, at around 10:00 in the evening, he
was walking along Velasquez Road to buy some medicines when, at a distance of about 15 meters, he saw
appellant hacking Norman with a bolo. He noticed that when Norman fell on the ground, appellant continued his
onslaught by relentlessly hacking the former. Afraid that he might be seen by the appellant, he immediately went
home and informed his wife about the incident. When the barangay tanod and policemen arrived at the crime scene,
he proceeded thereto and told them what he had witnessed. Further, he stated that he personally knows appellant
as the latter was a former employee in his carpentry business. He also personally knew Norman since the latter was
a relative of his wife. Lastly, he testified that appellant and Norman had a previous quarrel which, however, was
subsequently settled in their barangay office.7

SP01 Julian D. Mendoza was the investigating officer of the instant case. On 26 October 1999, at about 12:00
midnight, his station received an information regarding the hacking incident. He and a certain SPO3 Mario
Panaligan rushed to the crime scene. Upon arriving thereat, he inquired from the people present the identity of the
dead person and of the killer. Rolando approached him and narrated that the dead person was Norman and the
killer was appellant. Normita also arrived at the crime scene and told him relevant information. With this lead, they
proceeded to appellant's house but the latter was not there.

On 27 October 1999, a certain Tomas Dimacuha surrendered the appellant. Later, the brother of appellant,
Sherman Beltran, brought before him the bolo, about three palms in length, used by appellant in hacking Norman to
death.8

Dr. Dinah R. Lucero, Medical Officer IV of the Batangas City Health Office, testified that she conducted the post
mortem examination on the cadaver of Norman on 26 October 1999 at the Eternal Memorial Chapel. She declared
that, aside from the fact that Norman's body was almost decapitated, the latter suffered seven stab wounds and his
cause of death was "massive blood loss secondary to multiple hacking wound."9 The death certificate issued by
Lucero shows that Norman was twenty-two (22) years of age at the time of his demise.10

Lastly, Normita, sister of Norman, testified that on the evening of 25 October 1999, Carmina Baliwag called her on
the telephone and instructed her to proceed to Velasquez Road. Upon arriving thereat, she was shocked to discover
the dead body of Norman lying on the ground. She claimed that appellant had a motive to kill Norman since an
altercation occurred between the two on 22 October 1999, which, however, was settled later on 25 October 1999. In
establishing her claim for damages, she stated that she spent an amount of P61,000.00 in connection with
Norman's death, and that the latter worked as an assistant to the electrician at First Gas Company with a monthly
income of P6,000.00. She also claimed that she was "shocked" at the sudden and gruesome death of Norman, and
that she felt "pity" for him.11

On the other hand, the defense argued its case by presenting the testimony of the appellant himself and a certain
Dr. Luisito Briones.

Appellant admitted that he hacked Norman with a bolo but insisted that he did the same in self-defense. He narrated
that on 25 October 1999, at about 10:00 in the evening, he and his mother were resting inside their house when
suddenly, he heard Norman shouting and insulting him outside their house and challenging him to a fight. When he
came out of the house, he noticed that Norman was accompanied by several unidentified persons. Thereafter, he
tried to pacify Norman but the latter slapped the back of his head and pulled out an ice pick from his pocket. He
retreated and looked for something to defend himself. He found a bolo near a tamarind tree in front of their house
and took the same. When Norman was about to enter appellant's house, the latter hacked him with the bolo.
Norman tried to avoid the blow but the same hit his left arm. Appellant lost grip of the bolo and the same fell on the
ground. While appellant was reaching for the bolo, Norman grabbed his head and tried to stab him with the ice-pick.
Appellant, however, eluded the counter-attack but he sustained a minor wound on the forehead. Upon gaining
control of the scuffle, appellant took the bolo and hacked Norman four consecutive times, most of them landed on
the head. When appellant noticed that Norman was no longer moving, he fled therein and went to his brother,
Sherman Beltran, in Bauan, Batangas, where he stayed that same night and hid therein the bolo. The next day, he
went to his sister's house in Lipa City. Later that day, he went to the Granja Hospital, also in Lipa City, for treatment
of his wound on the forehead.

Appellant also claimed that on 22 October 1999, he was mauled by Norman near a sari-sari store; that Norman is
taller than him since he is only 5'4 in height; that he was forced to kill Norman because the latter insulted him and
his mother; and that he was on his way to Bauan City to surrender to police when he was apprehended by the
barangay officers in Lipa City.12 Appellant was twenty-nine years (29) of age at the time of his arrest.13

Dr. Luisito D. Briones testified that he treated appellant on the morning of 26 October 1999 at Granja Hospital in
Lipa City for a lacerated wound on the forehead. He also claimed that the wound was possibly caused by a knife
and that it was already on the healing stage. He also issued a medical certificate attesting to the same.14

On 9 October 2001, the RTC rendered its Decision15 finding appellant guilty beyond reasonable doubt of the crime
of murder. It reasoned that appellant's claim of self-defense cannot be sustained in view of the positive and credible
testimonies of the prosecution witnesses. In closing, the trial court ruled:

In the light of all the foregoing consideration and upon the evidence, accused Honorato Beltran, Jr. y Casia
alias "Jun-Jun" is hereby found GUILTY beyond reasonable doubt of the crime of Murder charged in the
information. Consequently, the accused is hereby sentenced to Reclusion perpetua together with all the
accessory penalties inherent therewith and to pay the costs. He is further directed to indemnify the heirs of
Norman Concepcion in the sum of P61,000.00 as actual damages and the sum of P75,000.00 as moral
damages.16

Aggrieved, appellant filed a notice of appeal therein on 22 October 2001.17 Subsequently, on 3 January 2003,
appellant filed his Appellant's Brief with this Court assailing the Decision of the RTC dated 9 October
2001.18 Pursuant to our ruling in the case of People v. Mateo,19 we issued a Resolution dated 8 November 2004,
transferring the instant case to the Court of Appeals for disposition.20 On 31 March 2005, the Court of Appeals
promulgated its Decision affirming with modifications the assailed RTC Decision. Aside from reducing the amount of
actual damages awarded by the RTC, it also ordered appellant to pay the heirs of Norman an amount of P50,000.00
as civil indemnity. The dispositive portion thereof reads:

WHEREFORE, the appealed Decision is AFFIRMED with MODIFICATION. Aside from moral damages in
the amount of P75,000.00, appellant is ordered to pay the heirs of the deceased, Norman Concepcion, the
following amounts: (a) Fifty Thousand (P50,000.00) as civil indemnity; and (b) Eighteen Thousand Five
Hundred Twenty-Five (P18,525.00) as actual damages.21

Dismayed, appellant appealed the afore-quoted Decision before this Court by adopting and invoking the same
arguments stated in his Appellant's Brief dated 3 January 2003, to wit:

I.

THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONY OF EVER SALES
DESPITE OF ITS BEING UNBELIEVABLE AND BIASED, INSTEAD OF THE SELF-DEFENSE
INTERPOSED BY THE APPELLANT.

II.

THE TRIAL COURT GRAVELY ERRED IN CONSIDERING THE QUALIFYING CIRCUMSTANCE OF

TREACHERY DESPITE THE PROSECUTION'S FAILURE TO ESTABLISH THE SAME BEYOND
REASONABLE DOUBT.

III.

ASSUMING THAT ACCUSED-APPELLANT IS NOT ENTITLED TO THE JUSTIFYING CIRCUMSTANCE

OF SELF-DEFENSE, THE TRIAL COURT ERRED IN NOT CONSIDERING IN HIS FAVOR THE
MITIGATING CIRCUMSTANCES OF SUFFICIENT PROVOCATION ON THE PART OF THE OFFENDED
PARTY WHICH IMMEDIATELY PRECEDED THE ACT AND VOLUNTARY SURRENDER.
 IV.

THE TRIAL COURT GRAVELY ERRED IN AWARDING EXCESSIVE ACTUAL DAMAGES.22

Anent the first issue, appellant argued that the testimony of prosecution witness, Ever, is biased, unbelievable and
confusing; that the trial court should not have considered them; that his acquittal is proper on the ground of self-
defense; and that the elements of self-defense are present in the instant case.

The contention is without merit.

Prosecution eyewitness, Ever, testified that on 25 October 1999, at about 10:00 in the evening, he left his workplace
and proceeded home using his bicycle. While traversing Velasquez Road, he saw appellant holding a bolo and
standing in front of his house situated at the side of Velasquez Road. On the opposite side of the same road, he saw
Norman standing in front of an automobile repair shop. Exhausted by the travel, he decided to stop by and rest
momentarily at a nipa hut near the same road. Minutes later, he saw appellant, from a distance of six meters,
stalking Norman who was walking then near the automobile repair shop. Appellant approached Norman, and without
a warning, repeatedly hacked him with a bolo. Although it occurred late in the evening, the light coming from the
moon and the electric post therein provided him with good visibility to identify appellant and Norman, and to witness
how the heinous act was executed.23 This testimony was corroborated by another prosecution eyewitness, Rolando.
Thus, the positive identification and categorical declarations of Ever on the witness stand under solemn oath
deserves full faith and credence.

Appellant, however, posited that there were inconsistencies between the testimony of Ever in open court and his
sworn statements before the investigators. According to appellant, Ever testified during his direct examination that
he was at a distance of about six meters, more or less, from appellant and Norman when the hacking occurred; that
the place where the killing occurred was "lighted" by the moon; and that during his cross-examination, he stated that
there was no other person within the area when he witnessed the hacking. On the other hand, appellant claimed
that Ever declared in his sworn statements before the investigators that he was more or less 20 meters from the
place where the hacking took place; that there was light coming from the electric post and the moon; and that during
his cross-examination, he also stated that the mother of appellant was outside the house when the hacking took
place.24

This Court had consistently ruled that the alleged inconsistencies between the testimony of a witness in open court
and his sworn statement before the investigators are not fatal defects to justify a reversal of judgment of conviction.
Such discrepancies do not necessarily discredit the witness since ex-parte affidavits are almost always incomplete.
It bears emphasis that a sworn statement or an affidavit does not purport to contain a complete compendium of the
details of the event narrated by the affiant. Sworn statements taken ex-parte are generally considered to be inferior
to the testimony given in open court.25

Moreover, as aptly stated by the Office of the Solicitor General (OSG), when Ever testified in court that "there was
light coming from the moon, sir" he was not denying what he stated in his sworn statement that "there was a light
from the lamp (electric) post and the moon."26 The appellant also testified that the place where the hacking incident
occurred was lighted by an electric post. As the foregoing circumstances clearly established that the place where
the hacking occurred was lighted by the moon and an electric post, the testimony of Ever as to the identity of the
killer and the victim, and how the killing was executed, must stand.

Further, the alleged inconsistencies with respect to the presence of appellant's mother in the place where the
hacking took place, and the distance between the nipa hut where Ever rested and the area where the hacking took
place, are minor inconsistencies and trivial matters that serve to strengthen rather than weaken the credibility of
Ever for they erase the suspicion of rehearsed testimony. Also, they are not material in the instant case since none
of them is an essential element of murder.27

More importantly, the RTC had observed that Ever was candid, straightforward and credible in giving his testimony
on the witness stand. It found Ever to be unbiased since he was neither a friend nor an enemy of appellant and
Norman but just a mere neighbor. It also found that there was no ulterior motive for him to testify against appellant.28

It is a well-settled doctrine in our jurisprudence that when the credibility of a witness is in issue, the findings of fact of
the trial court, its calibration of the testimonies of the witnesses and its assessment of the probative weight thereof,
as well as its conclusions anchored on said findings are accorded high respect if not conclusive effect.29 This is
because the trial court has the unique opportunity to observe the demeanor of a witness and is in the best position
to discern whether they are telling the truth.30 It is worth stressing at this point that the Court of Appeals affirmed
such findings of the RTC. In this regard, it is settled that when the trial court's findings have been affirmed by the
appellate court, said findings are generally conclusive and binding upon this Court.31 We find no compelling reason
to deviate from such findings of the RTC and the Court of Appeals.

On another point, appellant contended that he merely acted in self-defense when he hacked Norman to death.

We disagree.

Article 11, paragraph (1), of the Revised Penal Code provides for the elements and/or requisites in order that a plea
of self-defense may be validly considered in absolving a person from criminal liability, viz:

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

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

First. Unlawful aggression;

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

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

As an element of self-defense, unlawful aggression refers to an assault or attack, or a threat thereof in an imminent
and immediate manner, which places the defendant's life in actual peril.32 It is an act positively strong showing the
intent of the aggressor and not merely a threatening or intimidating attitude.33 It is also described as a sudden and
unprovoked attack of immediate and imminent kind to the life, safety or rights of the person attacked.34

There is an unlawful aggression on the part of the victim when he puts in actual or imminent peril the life, limb, or
right of the person invoking self-defense. There must be actual physical force or actual use of weapon.35 In order to
constitute unlawful aggression, the person attacked must be confronted by a real threat on his life and limb; and the
peril sought to be avoided is imminent and actual, not merely imaginary.36

In the instant case, there was no unlawful aggression on the part of Norman that justified the act of appellant in
hacking him to death. There was no actual or imminent danger on the life of appellant when he came face to face
with Norman. As narrated by Ever, Norman was just walking on the road and was not provoking appellant into a
fight. It was the appellant who approached and suddenly hacked Norman repeatedly even when the latter was
already fallen on the ground. In short, appellant was the unlawful aggressor.

Even if this Court were to adopt the version of facts of appellant, the result or conclusion would be the same.

Appellant alleged that he was resting inside his house when he heard Norman shouting invectives against him and
challenging him to a fight. When he went outside the house to pacify Norman, the latter slapped the back of his
head and brought out an ice-pick. Appellant retreated and when Norman tried to follow him inside the house, he
took a bolo and repeatedly hacked Norman. The foregoing circumstances does not justify the act of appellant in
hacking Norman. Obviously, mere shouting of invectives and challenging one to a fight does not put one's life in
actual or imminent danger. In the same vein, mere slapping of one's head does not place a person's life in serious
danger such that it compels him to use a bolo and hack the offender.

As regards the brandishing of an ice-pick, appellant had several less harmful means of avoiding the same as he was
not cornered or trapped. He could have run inside his house and locked the door, or, called the neighbors or
authorities for help. Unfortunately, appellant did not avail himself of any of those options and instead chose to hack
Norman. Quite conspicuously, no convincing evidence was presented to show that Norman was, indeed, armed with
an ice-pick at the time of the incident. In fact, no ice-pick was found in the crime scene nor in the body of Norman.
There was also no proof adduced showing that Norman attempted to stab appellant or tried to barge into the latter's
house.37
The fact that appellant sustained an injury on his head, allegedly caused by Norman's ice-pick, does not signify that
he was a victim of unlawful aggression or that he acted in self-defense.38 The physician who treated appellant
testified that the latter was diagnosed on 26 October 1999, the day after the hacking incident; that appellant was
discharged on the same day he was treated in the hospital since he was only an out-patient; and that at the time he
examined the head injury of appellant, it was already on its healing stage.39 It is clear from the foregoing that
appellant's head injury was not serious or severe. The cause of the same is likewise doubtful. Thus, the
superficiality of the injury sustained by appellant is no indication that his life and limb were in actual peril.40

In stark contrast, Norman was almost decapitated and sustained fatal injuries on the head and neck. All in all,
Norman sustained seven fatal wounds, most of them located at the head and neck. Based on the foregoing, it is
difficult to believe that Norman was the unlawful aggressor. The gravity, location, and number of wounds sustained
by Norman are eloquent physical evidence showing a determined effort on the part of appellant to kill Norman, and
not just to defend himself.41

Time and again, we held that unlawful aggression is a sine qua non for upholding the justifying circumstance of self-
defense.42 It is an essential and indispensable requisite, for without unlawful aggression on the part of the victim,
there can be, in a jural sense, no complete or incomplete self-defense.43 Without unlawful aggression, self-defense
will not have a leg to stand on and this justifying circumstance cannot and will not be appreciated even if the other
elements are present.44 To our mind, unlawful aggression is clearly absent in the case at bar.

The second element of self-defense requires that the means employed by the person defending himself must be
reasonably necessary to prevent or repel the unlawful aggression of the victim. The reasonableness of the means
employed may take into account the weapons, the physical condition of the parties and other circumstances
showing that there is a rational equivalence between the means of attack and the defense.45

The act of appellant in repeatedly hacking Norman on his head and neck was not a reasonable and necessary
means of repelling the aggression allegedly initiated by the latter. As stated earlier, no convincing evidence was
presented to show that Norman was armed with an ice-pick at the time of the incident. In fact, no ice-pick was found
in the crime scene or in the body of the victim. There was also no proof showing that Norman attempted to stab
appellant or tried to barge into the latter's house. Granting arguendo that Norman was armed with an ice-pick, the
repeated hackings were not necessary since he can overpower or disable Norman by a single blow on non-vital
portion/s of his body.

Again, as correctly observed by the OSG, had the appellant merely wanted to protect himself from what he
perceived as an unlawful aggression of Norman, he could have just disabled Norman.46 When Norman fell on the
ground, appellant should have ceased hacking the former since the alleged aggression or danger no longer exists.
By appellant's own testimony, however, he hacked Norman with his bolo even when the latter was already lying on
the ground. It appears, therefore, that the means used by appellant, which were simultaneous and repeated
hackings, were adopted by him not only to repel the aggression of Norman but to ensure the latter's death. In sum,
such act failed to pass the test of reasonableness of the means employed in preventing or repelling an unlawful
aggression.

Like an alibi, self-defense is inherently weak for it is easy to fabricate.47 Thus, this Court had consistently ruled that
where an accused admits killing the victim but invokes self-defense, it is incumbent upon the accused to prove by
clear and convincing evidence that he acted in self-defense.48 As the burden of evidence is shifted on the accused
to prove all the elements of self-defense, he must rely on the strength of his own evidence and not on the weakness
of the prosecution.49 In the instant case, appellant failed to discharge such burden with clear and convincing
evidence. Therefore, his plea of lawful self-defense must fall.

With regard to the second issue, appellant contended that there was no treachery that qualified his act to murder in
the absence of direct evidence showing that his attack on Norman was sudden; that Norman was not deprived of an
opportunity to defend himself; and that appellant did not employ treachery to insure the execution of the crime.

Appellant's contention is bereft of merit.

Treachery is a sudden and unexpected attack under circumstances that render the victim unable and unprepared to
defend himself by reason of the suddenness and severity of the attack.50 It is as an aggravating circumstance that
qualifies the killing of a person to murder. Article 14, paragraph (16) of the Revised Penal Code states the concept
and essential elements of treachery as an aggravating circumstance, thus:

ART. 14. Aggravating circumstances. - The following are aggravating circumstances:

xxxx

16. That the act be committed with treachery (alevosia).

There is treachery when the offender commits any of the crimes against the person employing means,
methods, or forms in the execution thereof which tend directly and specially to insure its execution, without
risk to himself arising from the defense which the offended party might make.

As can be gleaned from the foregoing, two essential elements/conditions are required in order that treachery may be
appreciated: (1) The employment of means, methods or manner of execution that would insure the offender's safety
from any retaliatory act on the part of the offended party, who has, thus no opportunity for self-defense or retaliation;
and (2) deliberate or conscious choice of such means, methods or manner of execution. Further, it must always be
alleged in the information and proved in trial in order that it may be validly considered.51

In the case at bar, treachery was alleged in the Information against appellant. Moreover, all the essential
elements/conditions of treachery were established and proven during the trial.

Appellant, while holding a bolo, had waited for the dark to set in before making his move so that nobody, especially
Norman, would notice his impending attack. When he saw Norman, alone and unarmed, casually walking near an
auto repair shop, he followed him surreptitiously. Later, appellant came out and approached the unsuspecting
Norman, who, in turn, faced the former. Appellant took advantage of the stunned and hapless Norman by swiftly
hacking him with a bolo. As the assault was sudden and unexpected, Norman was forced to move backwards and
raise his left arm to shield his face but it was too late. Norman's left arm was immediately hit by the bolo. When
Norman turned his back on appellant and tried desperately to run, appellant hacked him again at the back causing
him to fall on the ground. As the bloodied and moaning Norman was lying on the ground, appellant unleashed his
full wrath by repeatedly hacking him on the neck and head. Upon noticing that Norman was no longer moving and
was, in fact, almost decapitated, he stopped the hacking and fled the scene.

As viewed from the foregoing, the suddenness and unexpectedness of the appellant's attack rendered Norman
defenseless, vulnerable and without means of escape. Appellant's use of nighttime and a deadly bolo, as well as the
sudden attack and repeated hackings on the vital portions of Norman's body, were especially adopted by him to
immediately cripple Norman and prevent him from retaliating or escaping. Appellant deliberately adopted them in
order to overpower the much younger, taller, and larger Norman. Considering that Norman was alone and unarmed,
there was absolutely no way for him to defend himself or escape. Further, the fact that Norman sustained several
fatal wounds while appellant allegedly sustained a single superficial wound on his forehead shows that Norman was
not able to retaliate or defend himself. Given the foregoing, there is no doubt in our minds that appellant intended
and was determined to kill Norman.

Appellant, however, asseverated that there was no treachery since the attack was frontal or face to face, such that
Norman had been forewarned of the attack and, thus, placed him in a position where he can defend himself.
Appellant also claimed that there was a quarrel between him and Norman prior to the hacking incident which, in
effect, negate treachery since it disproved the fact that the attack was sudden and unexpected. We are not
persuaded.

There is no dispute that Norman was facing appellant at the time of the first blow. Subsequently, however, Norman
turned his back and tried to run but he was hacked at the back, and when he fell on the ground, he was hacked
again repeatedly. It is settled that treachery is to be appreciated when the victim was initially attacked frontally, but
was attacked again after being rendered helpless and had no means to defend himself or to retaliate.52 As long as
the attack was sudden and unexpected, and the unarmed victim was not in a position to repel the attack, there is
treachery.53
The quarrel between Norman and appellant prior to the hacking incident does not negate treachery. It is true that
there is no treachery if the killing was preceded by an altercation or dispute. The same, however, does not apply in
the instant case. The misunderstanding between the two occurred on 22 October 1999. This was settled before their
barangay officials on the morning of 25 October 1999. Cooler heads then had already set in. In fact, the two shook
hands before the same barangay officials. Thus, there was no reason for Norman to suspect that appellant still held
a grudge against him and to prepare or anticipate appellant's retaliation. It must also be noted that no conversation
or struggle occurred between them shortly before the hacking incident.

Appellant argued that if his plea of self-defense cannot be considered, he is still entitled to the mitigating
circumstances of sufficient provocation on the part of the offended party and voluntary surrender under Article 13
paragraphs (4) and (7) of the Revised Penal Code, respectively.

We reject these contentions.

Article 13 paragraph (4) of the Revised Penal Code provides that a person's criminal liability may be mitigated if
there was a sufficient provocation or threat on the part of the offended party which immediately preceded the crime.
Before the same can be appreciated, the following elements must concur: (1) That the provocation or threat must be
sufficient or proportionate to the crime committed and adequate to arouse one to its commission; (2) That the
provocation or threat must originate from the offended party; and (3) That the provocation must be immediate to the
commission of the crime by the person provoked.

Norman did not in any way provoke appellant into a fight on that fateful night. There was no argument or physical
struggle that ensued between them shortly before appellant hacked Norman with a bolo. Norman was innocently
walking along the road when, all of a sudden, appellant surfaced and hacked him in rapid succession. The alleged
altercation between the two occurred much earlier (22 October 1999) as to reasonably and sufficiently incite the
appellant to act the way he did. In the absence of sufficient provocation on the part of the offended party, appellant's
assertion of mitigating circumstance cannot be sustained. Moreover, and more importantly, this ordinary
mitigating circumstance cannot offset the qualifying aggravating circumstance of treachery which is
present in the instant case.

Likewise, appellant is not entitled to the mitigating circumstance of voluntary surrender. Article 13, paragraph (7) of
the Revised Penal Code states that the offender's criminal liability may be mitigated if he voluntarily surrendered to
a person in authority or his agents. Accordingly, the essential elements of voluntary surrender are: (1) that the
offender had not been actually arrested or apprehended; (2) that the surrender was voluntary and spontaneous; and
(3) that the offender surrendered himself to a person in authority or his agent.

Appellant was already apprehended for the hacking incident by the barangay officials of Lipa City just before he was
turned over to the police by a certain Tomas Dimacuha.54 Assuming that appellant had indeed surrendered to the
authorities, the same was not made spontaneously.55 Immediately after the hacking incident, appellant, instead of
proceeding to the barangay or police, went to his brother, Sherman Beltran, in Bauan, Batangas, and the next day,
to his sister in Lipa City. It took him three long days to surrender to the police authorities.56 Moreover, the flight of
appellant and his act of hiding until he was apprehended by the barangay officials are circumstances highly
inconsistent with the spontaneity that characterizes the mitigating circumstance of voluntary surrender.57

As to the last issue, appellant insisted that the trial court has awarded excessive damages in favor of Norman's
heirs. He argued that there was no proof or justification for the same.

When death occurs due to a crime, the following damages may be awarded: (1) a civil indemnity ex delicto for the
death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and (5)
temperate damages.58 Thus, we agree with the Court of Appeals that the award of P50,000.00 for civil indemnity ex
delicto to Norman's heirs is proper without need of proof other than appellant's commission of murder that resulted
in Norman's death.59 Likewise, we agree with the Court of Appeals that moral damages should be awarded since
Normita testified during the trial that she suffered moral shock and wounded feelings because of the brutal and
sudden death of Norman. However, we deem it necessary to reduce the amount of the same from P75,0000.00
to P50,000.00.

Normita claimed that she spent a total amount of P61,080 for the burial and funeral expenses of Norman. However,
the receipts on record shows that only an amount of P18,420.82 was spent therein.60 Normita's claim of expenses
for the food, drinks, flowers, chairs and tables during the funeral and burial of Norman, as well as the traditional 40
days prayer thereafter, were not supported by any receipts. These expenses are merely written, listed, and signed
by Normita in one sheet of yellow paper, and submitted as evidence in the trial court. Thus, as general rule, Normita
is entitled only to an amount of P18,420.82 since actual damages may be awarded only if there are receipts to
support the same. However, in the case of People v. Dela Cruz,61 this Court declared that when actual damages
proven by receipts during the trial amount to less than P25,000.00, such as in the present case, the award of
temperate damages for P25,000.00, is justified in lieu of actual damages for a lesser amount. This Court
ratiocinated therein that it was anomalous and unfair that the heirs of the victim who tried but succeeded in proving
actual damages to less P25,000.00 only would be in a worse situation than those who might have presented no
receipts at all but would be entitled to P25,000.00 temperate damages. Thus, instead of P18,420.82, an amount
of P25,000.00 as temperate damages should be awarded to the heirs of Norman. Actual damages for loss of
earning capacity cannot be awarded in this case since there was no documentary evidence to substantiate the
same.62 Although there are exceptions to this rule, none is availing in the present case.63

Moreover, exemplary damages in the amount of P25,000.00 should be awarded in this case since the qualifying
circumstance of treachery was firmly established.64

WHEREFORE, the Decision of the Court of Appeals dated 31 March 2005 is

hereby AFFIRMED with MODIFICATIONS: We award Norman's heirs civil indemnity of P50,000.00 for Norman's
death; moral damages, in the amount of P50,000.00; temperate damages, in lieu of actual damages, in the amount
of P25,000.00; and lastly, exemplary damages in the amount of P25,000.00.

SO ORDERED.

Panganiban, C.J., Chairperson, Ynares-Santiago, Austria-Martinez, Callejo, Sr., J.J., concur.

Footnotes

1 People v. Tuson, G.R. Nos. 106345-46, 16 September 1996, 261 SCRA 711, 713.

2Rollo, pp. 3-15; penned by Associate Justice Magdangal M. de Leon with Associate Justices Salvador J.
Valdez, Jr., and Mariano C. Del Castillo, concurring.

3 CA rollo, pp. 16-22.

4 Records, pp. 1-2.

5 Id. at 14.

6 Id. at 7-8.

7 Id. at 4-5.

8 Id. at 6.

9 Id. at 86-88.

10 Id.

11 Id. at 3.

12 TSN, 1 December 2000.

13 Records, p. 10.

14 TSN, 6 June 2001.

15 CA rollo, pp. 16-22.

16 Id. at 22.

17 Records, p. 149.

18 CA rollo, pp. 59-75.

19 G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640.

20 Id. at 158.

21 Rollo, p. 14.

22 Rollo, pp. 7-8.

23 Records, pp. 7-8.

24 CA rollo, pp. 59-75.

25People v. Lazaro, 319 Phil. 352, 361 (1995); People v. Layno, 332 Phil. 612, 625 (1996); People v.
Foncardas, G.R. No. 144598, 6 February 2004, 422 SCRA 356, 370.

26 CA rollo, p. 130.

27 People v. Monieva, 388 Phil. 915, 924 (2000).

28 Records, p. 10.

29 People v. Abolidor, G.R No. 147231, 18 February 2004, 423 SCRA 260, 265.

30 People v. Matito, G.R. No. 144405, 24 February 2004, 423 SCRA 617, 625.

31 People v. Castillo, G.R. No. 118912, 28 May 2004, 430 SCRA 40, 50.

32 People v. Alconga and Bracamonte, 78 Phil. 366, 374 (1947).

33 People v. Arizala, 375 Phil. 666, 674 (1999).

34 People v. Bausing, G.R No. 64965, 18 July 1991, 199 SCRA 355, 361.

35 People v. Crisostomo, 195 Phil. 162, 172 (1981).

36 Senoja v. People, G.R. No. 160341, 19 October 2004, 440 SCRA 695, 704.

37 CA rollo, p. 21.

38 Roca v. Court of Appeals, G.R No. 114917, 29 January 2001, 350 SCRA 414, 423.

39 Records, p. 132.
 40 Senoja v. People, supra note 36.

41 People v. Delmindo, G.R No. 146810, 27 May 2004, 429 SCRA 546, 557.

42 People v. Cario, 351 Phil. 644, 659 (1998).

43 People v. Gallego, 453 Phil. 825, 839 (2003).

44 People v. Caratao, 451 Phil. 588, 602 (2003).

45 People v. Encomienda, 150-B Phil. 419, 433 (1972).

46 CA rollo, p. 124.

47 People v. Carujao, G.R. No. 122767, 20 January 2004, 420 SCRA 207, 213.

48 Rendon v. People, G.R. No. 127089, 19 November 2004, 443 SCRA 142, 146.

49 People v. Castillano, Sr., 448 Phil. 482, 499 (2003).

50 People v. Santos, G.R. No. 127492, 16 January 2004, 420 SCRA 37, 49.

51 Rule 110, Sections 8 and 9, of the Revised Rules on Criminal Procedure.

52 People v. Riglos, 394 Phil. 54, 72 (2000).

53 People v. Agsalog, G.R. No. 141087, 31 March 2004, 426 SCRA 624, 639.

54 CA rollo, pp. 19-21.

55 People v. Mallari, 452 Phil. 210, 223 (2003).

56 Id.

57 People v. Fallorina, G.R. No. 137347, 4 March 2004, 424 SCRA 655, 675.

58 Nueva España v. People, G.R. No. 163351, 21 June 2005, 460 SCRA 547, 555.

59 Id.

60 Records, pp. 90-97.

61 459 Phil. 130, 138-139 (2003).

62 Id.

63 Id.

64 People v. Manambay, G.R. No. 130684, 5 February 2004, 422 SCRA 73, 90.

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

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PEDRO PAGAL y MARCELINO and JOSE TORCELINO y TORAZO, defendants-appellants.

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

Ciriaco Lopez, Jr. for appellants.

CONCEPCION, JR. J.: têñ.£îhq wâ£

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

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

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

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

Court:

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

Accused:

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

Court:

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

Accused:
 Yes, your honor.

Court:

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

Accused:

Yes, your honor.

Court:

Do you know that by agreeing to that manifestation, you will be admitting the
commission of the crime charged, robbery wit,. homicide?

Accused:

Yes, your honor.

Court:

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

Accused:

Yes, your honor.

Court:

And notwithstanding what is explained to you, you still insist in your desire to enter a
plea of guilty to the offense charged?

Accused:

Yes, your honor.

Court:

Q Notwithstanding again the warning of the court that the maximum penalty
impossable is death?

A Yes, your honor.

Court:

Arraign the accused.

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

Thereafter, the accused presented evidence to prove the mitigating circumstances of sufficient provocation on the part of
the victim immediately preceding the act and acting upon an impulse so powerful as to produce passion and obfuscation.
After the accused had rested their case, the prosecution presented the statements 4 of the accused, and other pertinent
documents regarding the investigation of the case. 5

After the trial, the court a quo rendered its decision, the dispositive portion of which reads as follows: ñé+.£ªwph!1
 WHEREFORE, both accused are hereby found guilty beyond reasaonable doubt as principals of the
crime of robbery with homicide and there being proven the aggravating circumstances of nighttime,
evident premeditation and disregard of respect due the offended party offset only by the mitigating
circumstance of their plea of guilty, sentences each one of them to DEATH, jointly and severally
indemnify the heirs of the deceased Gau Guan; P15,000.00 for moral damages; P15,000.00 for
exemplary damages, all amounts to bear interest until they shall have been fully paid; the sum of
P1,281.00 represnting the amount taken from the victim; and to pay proportionately the costs. 6

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

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

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

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

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

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

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

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

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

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

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

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

SO ORDERED.

Castro, C.J., Fernando, Aquino, Martin, Santos, Fernandez and Guerrero, JJ., concur. 1äwphï1.ñët

Teehankee and Makasiar, JJ., concur in the result.

Antonio, J., took no part.

Separate Opinions

MUÑ;OZ PALMA, J., concuring:

I would state however that the rulings in People vs. Parete and People vs. Santos, et al., cited in page 7 of the
Opinion must be taken in conjunction with recent jurisprudence that extra solicitous care is required in the admission
of a plea of guilty and that the taking of testimony and other evidence notwithstanding a plea of guilty is the prudent
and proper course to follow by trial judges. (People vs. Villafuerte, March 28, 1974, citing numerous cases; People
vs. Hondolero, August 25, 1976). These safeguards appear to have been taken in the instant case.

BARREDO, J., concurring:

While I am not fully satisfied that appellants were entirely aware of the meaning of their plea of guilty, I find that the
rebuttal evidence of the prosecution proved their guilt, which evidence the appellants did not dispute.

Separate Opinions

MUÑ;OZ PALMA, J., concuring:

I would state however that the rulings in People vs. Parete and People vs. Santos, et al., cited in page 7 of the
Opinion must be taken in conjunction with recent jurisprudence that extra solicitous care is required in the admission
of a plea of guilty and that the taking of testimony and other evidence notwithstanding a plea of guilty is the prudent
and proper course to follow by trial judges. (People vs. Villafuerte, March 28, 1974, citing numerous cases; People
vs. Hondolero, August 25, 1976). These safeguards appear to have been taken in the instant case.

BARREDO, J., concurring:

While I am not fully satisfied that appellants were entirely aware of the meaning of their plea of guilty, I find that the
rebuttal evidence of the prosecution proved their guilt, which evidence the appellants did not dispute.

Footnotes ñé+.£ªwph! 1

1 p. 2, Record.

2 p. 3, t.s.n., January 8, 1970.

3 pp. 3-4, t.s.n., January 8, 1970.

4 Exhibits "A" & "B", pp. 4, 7, Record.

5 Exhibits "C", "D", "E", "F" and "F1", pp. 9, 10, 11, 14, 15, Record.

6 pp. 26-27, Record.

7 Exhibit "B", supra.

8 People vs. Roldan, L-22030, May 29, 1968, 23 SCRA 907; People vs. Arpa, L-26789, April 25,
1969, 29 SCRA 1037.

9 People vs. Perete, 1 SCRA 1290.

10 People vs. Santos and Vicente, 103 Phil. 40.

11 People vs. Reyes, L-33154, February 27, 1976, 69 SCRA 474.

12 60 Phil. 143.

13 U.S. vs. Blanco, 10 Phil. 298; People vs. Daos, 60 Phil. 143; People vs. Pulido, 85 Phil. 695;
People vs. Valeriano, 90 phil. 15.

14 People vs. Nabual, L-127758, July 14, 1969, 28 SCRA 747.

15 People vs. Atencio, L-22513, Jan. 17, 1968, 22 SCRA 88.

16 Exhibits "A" and "B", pp. 4, 7, Record.

17 Albert, Revised Penal Code, 1946 Ed., p. 109; Reyes, Revised Penal Code, 1974 Ed., Vol. I, p.
297.

18 Aquino, Revised Penal Code, 1976 Ed., Vol. I, p. 286, citing U.S. vs. Samonte, 8 Phil. 286.

19 Ibid, Vol. III, 1976 Ed., p. 1434, citing U.S. vs. Ipil, 27 Phil. 530, 535.

20 Article 294, par 1 revised Penal Code.

21 Article 63, (4) and (2), Revised Penal Code.

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