G.R. No.

L-34029             February 26, 1931

THE STANDARD OIL COMPANY OF NEW YORK, plaintiff-appellant,
vs.
JUAN POSADAS, Jr., Collector of Internal Revenue of the Philippine Islands, defendant-
appellee.
Ross, Lawrence and Selph for appellant.
Attorney-General Jaranilla for appellee.
DeWitt, Perkins and Brady as amici curiae.

MALCOLM, J.:

This test case presents for decision the question of whether sales of merchandise made in the
Philippines to the United States Army and the United States Navy are subject to the sales tax. In the
lower court, the demurrer to the complaint was sustained, and the plaintiff having elected not to
amend its complaint, judgement was rendered upon the subject matter involved in the pleadings,
adjudging that the plaintiff take nothing by the action and defendant recover costs.

The Standard Oil Company of New York is a foreign corporation duly authorized to do business in
the Philippines. During the period from October 1, 1929, to December 31, 1929, the Standard Oil
Company sold and delivered in the Philippines to the Quartermaster Department of the United
States Army, for the use of the Army, fuel oil and asphalt of the value of P6,832.84. The Collector of
Internal Revenue of the Philippine Government, acting under authority of section 1459 of the
Administrative Code and Act No. 3243 of the Philippine Legislature as ratified by the Congress of the
United States, demanded a tax of one and one-half per cent upon the value of the merchandise,
amounting to P102.49. During the identical period of time above-mentioned, the Standard Oil
Company likewise made delivery in the Philippines to the United States Navy, under a contract
executed in New York, United States, for the use of the Navy, of fuel oil of the value of P172,059.36,
which was paid in New York, and which contract provided that all internal revenue taxes and
charges under the laws of the Philippine Islands were to be assumed and paid by the United States
Navy. The Collector of Internal Revenue required payment of the sales tax upon the value of the fuel
oil, in the amount of P2,580.89. the Standard Oil Company paid the taxes assessed under protest
and is now suing to recover the corresponding refunds.

This court has recently decided the case entitled, Thirty First Infantry Post Exchange and First
Lieutenant David L. Hardee, Thirty-First Infantry, United States Army, plaintiffs, vs. Juan Posadas,
Jr., Collector of Internal Revenue, Philippine Islands, defendant ([1930], 54 Phil., 866). There it was
held that a tax may be levied by the Government of the Philippine Islands on sales made by
merchants to Post Exchanges of the United States Army in the Philippines. It was ruled that the Acts
of the Philippine Legislature imposing the sales tax, which have been confirmed by Acts of
Congress, form a part of the Philippine Organic Law. That same principle would again apply to the
facts before us. However, it was indicated that the waiver must be clear and that every well-
grounded doubt should be resolved in favor of the exemption, citing Austin vs. Aldermen of Boston
([1869], 7 Wall., 694). That principle would likewise govern here.

In the course of the decision in the Post Exchange case, the United States Army was mentioned,
and properly so, as an instrumentality of the United States Government. Regarding the correctness
of this proposition, there could, of course, be no real dispute. The United States Army and the United
States Navy derive their powers from the Constitution of the United States. The Congress of the
United States has created two agencies, or more correctly stated, three agencies to serve the United
States in the Philippine Islands. Two of these agencies are the United States Army and the United
States Navy, and the third is the Government of the Philippine Islands. The military establishment
and the civil government stand side by side but independent of each other in the Philippines. The tax
collected from the plaintiff by one of these agencies, the Philippine Government, is in reality a tax on
the United States Army and the United States Navy — in other words, on the United States
Government — for the consumer pays the tax as part of the purchase price. (Tan Te vs. Bell [1914],
27 Phil., 354; U. S. vs. Smith [1919], 39 Phil., 533.).

It would further appear perfectly clear that the principle which prohibits a State from taxing the
instrumentalities of the Federal Government applies with equal force to the Philippine Islands. At
least, that was our holding in the Post Exchange case. Nevertheless the Attorney-General persists in
assuming a difference in tax powers between the relations of the Philippine Government to the
National Government and of a State Government to the National Government. We are frank to say
that we are unable to see eye to eye with the Attorney-General. It would be absurd to think that a
derivative sovereignty like the Government of the Philippine Islands, could tax the instrumentalities
of the very Government which brought it into existence. If a sovereign State of the American Union
cannot abridge or restrict the activities of the United States Government, much less can a creature of
that Government, as the Philippine Government is, do so. (Note the well-considered opinion of
Attorney-General Wickersham of June 8, 1912, appearing in 29 Opinions, Attorneys-General, United
States, 442.)

The case before us is readily distinguishable on the facts from the Post Exchange case. The theory
of the Post Exchange case was that a tax on sales, which ultimately passed on to the consumers,
individuals in the Army, was not a tax on the United States Government or with the operations of the
United States Army to such an extent or in such a manner as to render the tax illegal. There is no
such condition in this case. The goods which were claimed to be subject to tax are for the use of the
United States itself in its own operations in the Philippines.

The case at bar is more nearly analogous to the case of Panhandle Oil Co. vs. Knox ([1928], 277 U.
S., 218), than was the Post Exchange case. The Panhandle Oil case and the case at bar differ in
that in the Panhandle Oil case, the United States Supreme Court dealt with a State law that had
never been ratified by Congress, whereas there is now to be applied an Act of the Philippine
Legislature which had been ratified by Congress. On the other hand, the Panhandle Oil case at bar
are similar in that both concern privilege taxes the amount of which is measured by the amount of
the sale; in that in both cases the sales were made to instrumentalities of the Federal Government;
and in that in both cases, the party to suit was the merchant and not the United States Government
or an agency within the United States Army like a Post Exchange. Inasmuch, however, as the
distinction between a State law and an Act of a territorial legislature is no distinction at all, and
inasmuch as the ratification by Congress failed to grant any express waiver of the exemption in favor
of the United States Government, it would require more than ordinary ingenuity to avoid the
consequences of the decision of the United States Supreme Court in the Panhandle Oil Case.

Not long since, the District of Columbia endeavored to recover taxes on gasoline imported into the
District of Columbia by the American Oil Company, under a contract with the Secretary of the
Treasury, for use by the executive departments and governmental agencies. In both the Supreme
Court of the District of Columbia and the Court of Appeals, the seller was held not liable for the tax.
In the opinion of the appellate court, it was said: "While for convenience, the tax is levied upon the
importer, it is apparent that the tax is really to be paid by the consumer. . . . To sustain the
contention of appellant, it must clearly appear that the United States intended to tax itself. See Dollar
Savings Bank vs. United States, 19 Wall., 227; 22 L. ed., 80." (District of Columbia vs. American Oil
Co. [1930], 39 Fed. 2nd., 510.).

The Asiatic Petroleum Company began suit in the Court of Claims against the United States for the
recovery of more than $100,000 due on the purchase price of fuel oil sold by the company for the
use of the Navy. The defendant admitted the claim but interposed a counterclaim for the same
amount, alleged to be due and owing to the Philippine Government as customs duties on oil under
this contract. In the Philippines the Tariff Act in force was the Act of Congress of August 5, 1909,
which was silent on the question. It was the holding of the Court of Claims that this Act of Congress
did not require the United States to pay duty on oil owned by it and imported into the Philippine
Islands for use in the Military or Naval Establishments. The court said: "The purpose of the statute
providing for customs duties on importations into the Philippine Islands was to provide revenue for
the use of the Philippine Government, for the protection, and partial support of which the United
States held itself responsible. It is inconceivable that Congress in the enactment of the said statute
should have intended that the United States would be required to pay duty on its own oil imported
into the Philippine Islands, for its own use, in supplying its Navy vessels used in the protection of the
Philippine Government, as well as for the maintenance of its own Military and Naval Establishments
in the national defense." (Asiatic Petroleum Co. vs. U. S. [1928],65 Ct. of Cl. Rep., 100.).

We sustain the first, second, third, and fifth errors assigned, going to the proposition that the lower
court erred in not deciding that sales made in the Philippines to the United States Army and the
United States Navy are made to instrumentalities of the United States Government, and, therefore,
are not subject to tax by the Philippine Government. This holding makes unnecessary any reference
to the fourth error assigned, relating to the additional question having to do with the contract with the
United States Navy, and to the point that this question was not mentioned in the protest filed with the
Bureau of Internal Revenue and so may not be raised on appeal. It is sufficient to state that, in our
opinion, the assessment and collection by the Philippine Government of the tax on sales of
merchandise made in the Philippines to the United States Army and the United States Navy is
illegal.

Judgment reversed, and the record ordered returned to the court of origin for further proceedings,
without express finding as to costs in either instance.

Avanceña, C.J., Johnson, Street, Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.
G.R. No. 165952               July 28, 2008
ANECO REALTY AND DEVELOPMENT CORPORATION, Petitioner,
vs.
LANDEX DEVELOPMENT CORPORATION, Respondent.

DECISION

REYES, R.T., J.:

THIS is a simple case of a neighbor seeking to restrain the landowner from fencing his own property.
The right to fence flows from the right of ownership. Absent a clear legal and enforceable right, We
will not unduly restrain the landowner from exercising an inherent proprietary right.

Before Us is a petition for review on certiorari of the Decision 1 of the Court of Appeals (CA) affirming
the Order2 of the Regional Trial Court (RTC) dismissing the complaint for injunction filed by petitioner
Aneco Realty and Development Corporation (Aneco) against respondent Landex Development
Corporation (Landex).

Facts

Fernandez Hermanos Development, Inc. (FHDI) is the original owner of a tract of land in San
Francisco Del Monte, Quezon City. FHDI subdivided the land into thirty-nine (39) lots.3 It later sold
twenty-two (22) lots to petitioner Aneco and the remaining seventeen (17) lots to respondent
Landex.4

The dispute arose when Landex started the construction of a concrete wall on one of its lots. To
restrain construction of the wall, Aneco filed a complaint for injunction5 with the RTC in Quezon City.
Aneco later filed two (2) supplemental complaints seeking to demolish the newly-built wall and to
hold Landex liable for two million pesos in damages.6

Landex filed its Answer7 alleging, among others, that Aneco was not deprived access to its lots due
to the construction of the concrete wall. Landex claimed that Aneco has its own entrance to its
property along Miller Street, Resthaven Street, and San Francisco del Monte Street. The Resthaven
access, however, was rendered inaccessible when Aneco constructed a building on said street.
Landex also claimed that FHDI sold ordinary lots, not subdivision lots, to Aneco based on the
express stipulation in the deed of sale that FHDI was not interested in pursuing its own subdivision
project.

RTC Disposition

On June 19, 1996, the RTC rendered a Decision8 granting the complaint for injunction, disposing as
follows:

Wherefore, premises considered, and in the light aforecited decision of the Supreme Court judgment
is hereby rendered in favor of the plaintiff and the defendant is hereby ordered:

1. To stop the completion of the concrete wall and excavation of the road lot in question and
if the same is already completed, to remove the same and to return the lot to its original
situation;
 2. To pay actual and compensatory damage to the plaintiff in the total amount of ₱50,000.00;
3. To pay attorney’s fees in the amount of ₱20,000.00;
4. To pay the cost.

SO ORDERED.9

Landex moved for reconsideration.10 Records reveal that Landex failed to include a notice of hearing
in its motion for reconsideration as required under Section 5, Rule 15 of the 1997 Rules of Civil
Procedure. Realizing the defect, Landex later filed a motion 11 setting a hearing for its motion for
reconsideration. Aneco countered with a motion for execution12 claiming that the RTC decision is
already final and executory.

Acting on the motion of Landex, the RTC set a hearing on the motion for reconsideration on August
28, 1996. Aneco failed to attend the slated hearing. The RTC gave Aneco additional time to file a
comment on the motion for reconsideration.13

On March 13, 1997, the RTC issued an order14 denying the motion for execution of Aneco.

On March 31, 1997, the RTC issued an order granting the motion for reconsideration of Landex and
dismissing the complaint of Aneco. In granting reconsideration, the RTC stated:

In previously ruling for the plaintiff, this Court anchored its decision on the ruling of the Supreme
Court in the case of "White Plains Association vs. Legaspi, 193 SCRA 765," wherein the issue
involved was the ownership of a road lot, in an existing, fully developed and authorized subdivision,
which after a second look, is apparently inapplicable to the instant case at bar, simply because the
property in question never did exist as a subdivision. Since, the property in question never did exist
as a subdivision, the limitations imposed by Section 1 of Republic Act No. 440, that no portion of a
subdivision road lot shall be closed without the approval of the Court is clearly in appropriate to the
case at bar.

The records show that the plaintiff’s property has access to a public road as it has its own ingress
and egress along Miller St.; That plaintiff’s property is not isolated as it is bounded by Miller St. and
Resthaven St. in San Francisco del Monte, Quezon City; that plaintiff could easily make an access to
a public road within the bounds and limits of its own property; and that the defendant has not yet
been indemnified whatsoever for the use of his property, as mandated by the Bill of rights. The
foregoing circumstances, negates the alleged plaintiffs right of way.15

Aneco appealed to the CA.16

CA Disposition

On March 31, 2003, the CA rendered a Decision17 affirming the RTC order, disposing as follows:

WHEREFORE, in consideration of the foregoing, the instant appeal is perforce dismissed.

Accordingly, the order dated 31 March 1996 is hereby affirmed.

SO ORDERED.18

In affirming the RTC dismissal of the complaint for injunction, the CA held that Aneco knew at the
time of the sale that the lots sold by FHDI were not subdivision units based on the express
stipulation in the deed of sale that FHDI, the seller, was no longer interested in pursuing its
subdivision project, thus:

The subject property ceased to be a road lot when its former owner (Fernandez Hermanos, Inc.)
sold it to appellant Aneco not as subdivision lots and without the intention of pursuing the subdivision
project. The law in point is Article 624 of the New Civil Code, which provides:

Art. 624. The existence of an apparent sign of easement between two estates, established or
maintained by the owner of both, shall be considered, should either of them be alienated, as a title in
order that the easement may continue actively and passively, unless, at the time the ownership of
the two estates is divided, the contrary should be provided in the title of conveyance of either of
them, or the sign aforesaid should be removed before the execution of the deed. This provision shall
also apply in case of the division of a thing owned in common by two or more persons.

Viewed from the aforesaid law, there is no question that the law allows the continued use of an
apparent easement should the owner alienate the property to different persons. It is noteworthy to
emphasize that the lot in question was provided by the previous owner (Fernandez Hermanos, Inc.)
as a road lot because of its intention to convert it into a subdivision project. The previous owner even
applied for a development permit over the subject property. However, when the twenty-two (22) lots
were sold to appellant Aneco, it was very clear from the seller’s deed of sale that the lots sold
ceased to be subdivision lots. The seller even warranted that it shall undertake to extend all the
necessary assistance for the consolidation of the subdivided lots, including the execution of the
requisite manifestation before the appropriate government agencies that the seller is no longer
interested in pursuing the subdivision project. In fine, appellant Aneco knew from the very start that
at the time of the sale, the 22 lots sold to it were not intended as subdivision units, although the titles
to the different lots have yet to be consolidated. Consequently, the easement that used to exist on
the subject lot ceased when appellant Aneco and the former owner agreed that the lots would be
consolidated and would no longer be intended as a subdivision project.

Appellant Aneco insists that it has the intention of continuing the subdivision project earlier
commenced by the former owner. It also holds on to the previous development permit granted to
Fernandez Hermanos, Inc. The insistence is futile. Appellant Aneco did not acquire any right from
the said previous owner since the latter itself expressly stated in their agreement that it has no more
intention of continuing the subdivision project. If appellant desires to convert its property into a
subdivision project, it has to apply in its own name, and must have its own provisions for a road lot.19

Anent the issue of compulsory easement of right of way, the CA held that Aneco failed to prove the
essential requisites to avail of such right, thus:

An easement involves an abnormal restriction on the property of the servient owner and is regarded
as a charge or encumbrance on the servient owner and is regarded as a charge or encumbrance on
the servient estate (Cristobal v. CA, 291 SCRA 122). The essential requisites to be entitled to a
compulsory easement of way are: 1) that the dominant estate is surrounded by other immovables
and has no adequate outlet to a public highway; 2) that proper indemnity has been paid; 3) that the
isolation was not due to acts of the proprietor of the dominant estate; 4) that the right of way claimed
is at a point least prejudicial to the servient estate and in so far as consistent with this rule, where the
distance from the dominant estate to a public highway may be the shortest (Cristobal v. Court of
Appeals, 291 SCRA 122).

An in depth examination of the evidence adduced and offered by appellant Aneco, showed that it
had failed to prove the existence of the aforementioned requisites, as the burden thereof lies upon
the appellant Aneco.20
Aneco moved for reconsideration but its motion was denied. 21 Hence, the present petition or appeal
by certiorari under Rule 45.

Issues

Petitioner Aneco assigns quadruple errors to the CA in the following tenor:

A.THE COURT OF APPEALS GRAVELY ERRED IN DISMISSING PETITIONER’S APPEAL

AND SUSTAINING THE TRIAL COURT’S ORDER DATED 31 MARCH 1997 GRANTING
RESPONDENT’S MOTION FOR RECONSIDERATION WHICH IS FATALLY DEFECTIVE
FOR LACK OF NOTICE OF HEARING.

B.THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE TRIAL COURT’S

ORDER WHICH GAVE FULL WEIGHT AND CREDIT TO THE MISLEADING AND
ERRONEOUS CERTIFICATION ISSUED BY GILDA E. ESTILO WHICH SHE LATER
EXPRESSLY AND CATEGORICALLY RECANTED BY WAY OF HER AFFIDAVIT.

C.THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE LIBERAL

CONSTRUCTION OF THE RULES IN ORDER TO SUSTAIN THE TRIAL COURT’S ORDER
DATED 31 MARCH 1997.

D.THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE TRIAL COURT’S

ORDER THAT MADE NO PRONOUNCEMENTS AS TO COSTS, AND IN DISREGARDING
THE MERIT OF THE PETITIONER’S CAUSE OF ACTION.22

Our Ruling

The petition is without merit.

Essentially, two (2) issues are raised in this petition. The first is the procedural issue of whether or
not the RTC and the CA erred in liberally applying the rule on notice of hearing under Section 5,
Rule 15 of the 1997 Rules of Civil Procedure. The second is the substantive issue of whether or not
Aneco may enjoin Landex from constructing a concrete wall on its own property.

We shall discuss the twin issues sequentially.

Strict vs. Liberal Construction of Procedural Rules; Defective motion was cured when Aneco was
given an opportunity to comment on the motion for reconsideration.

Section 5, Rule 15 of the 1997 Rules of Civil Procedure23 requires a notice of hearing for a contested
motion filed in court. Records disclose that the motion for reconsideration filed by Landex of the RTC
decision did not contain a notice of hearing. There is no dispute that the motion for reconsideration is
defective. The RTC and the CA ignored the procedural defect and ruled on the substantive issues
raised by Landex in its motion for reconsideration. The issue before Us is whether or not the RTC
and the CA correctly exercised its discretion in ignoring the procedural defect. Simply put, the issue
is whether or not the requirement of notice of hearing should be strictly or liberally applied under the
circumstances.

Aneco bats for strict construction. It cites a litany of cases which held that notice of hearing is
mandatory. A motion without the required notice of hearing is a mere scrap of paper. It does not toll
the running of the period to file an appeal or a motion for reconsideration. It is argued that the
original RTC decision is already final and executory because of the defective motion.24

Landex counters for liberal construction. It similarly cites a catena of cases which held that
procedural rules may be relaxed in the interest of substantial justice. Landex asserts that the
procedural defect was cured when it filed a motion setting a hearing for its motion for
reconsideration. It is claimed that Aneco was properly informed of the pending motion for
reconsideration and it was not deprived of an opportunity to be heard.25

It is true that appeals are mere statutory privileges which should be exercised only in the manner
required by law. Procedural rules serve a vital function in our judicial system. They promote the
orderly resolution of cases. Without procedure, there will be chaos. It thus behooves upon a litigant
to follow basic procedural rules. Dire consequences may flow from procedural lapses.

Nonetheless, it is also true that procedural rules are mere tools designed to facilitate the attainment
of justice. Their strict and rigid application should be relaxed when they hinder rather than promote
substantial justice. Public policy dictates that court cases should, as much as possible, be resolved
on the merits not on mere technicalities. Substantive justice trumps procedural rules. In Barnes v.
Padilla,26 this Court held:

Let it be emphasized that the rules of procedure should be viewed as mere tools designed to
facilitate the attainment of justice. Their strict and rigid application, which would result in
technicalities that tend to frustrate rather than promote substantial justice, must always be
eschewed. Even the Rules of Court reflect this principle. The power to suspend or even disregard
rules can be so pervasive and compelling as to alter even that which this Court itself has already
declared to be final x x x.lawph!l

The emerging trend in the rulings of this Court is to afford every party litigant the amplest opportunity
for the proper and just determination of his cause, free from the constraints of technicalities. Time
and again, this Court has consistently held that rules must not be applied rigidly so as not to override
substantial justice.27

Here, We find that the RTC and the CA soundly exercised their discretion in opting for a liberal
rather than a strict application of the rules on notice of hearing. It must be stressed that there are no
vested right to technicalities. It is within the court’s sound discretion to relax procedural rules in order
to fully adjudicate the merits of a case. This Court will not interfere with the exercise of that discretion
absent grave abuse or palpable error. Section 6, Rule 1 of the 1997 Rules of Civil Procedure even
mandates a liberal construction of the rules to promote their objectives of securing a just, speedy,
and inexpensive disposition of every action and proceeding.

To be sure, the requirement of a notice of hearing in every contested motion is part of due process
of law. The notice alerts the opposing party of a pending motion in court and gives him an
opportunity to oppose it. What the rule forbids is not the mere absence of a notice of hearing in a
contested motion but the unfair surprise caused by the lack of notice. It is the dire consequences
which flow from the procedural error which is proscribed. If the opposing party is given a sufficient
opportunity to oppose a defective motion, the procedural lapse is deemed cured and the intent of the
rule is substantially complied. In E & L Mercantile, Inc. v. Intermediate Appellate Court, 28 this Court
held:

Procedural due process is not based solely on a mechanistic and literal application of a rule such
that any deviation is inexorably fatal. Rules of procedure, and this includes the three (3) days notice
requirement, are liberally construed in order to promote their object and to assist the parties in
obtaining just, speedy, and inexpensive determination of every action and proceeding (Section 2,
Rule 1, Rules of Court). In Case and Nantz v. Jugo (77 Phil. 517), this Court made it clear that
lapses in the literal observance of a rule of procedure may be overlooked when they have not
prejudiced the adverse party and have not deprived the court of its authority.

A party cannot ignore a more than sufficient opportunity to exercise its right to be heard and once
the court performs its duty and the outcome happens to be against that negligent party, suddenly
interpose a procedural violation already cured, insisting that everybody should again go back to
square one. Dilatory tactics cannot be the guiding principle.

The rule in De Borja v. Tan (93 Phil. 167), that "what the law prohibits is not the absence of previous
notice, but the absolute absence thereof and lack of opportunity to be heard," is the applicable
doctrine. (See also Aguilar v. Tan, 31 SCRA 205; Omico v. Vallejos, 63 SCRA 285; Sumadchat v.
Court of Appeals, 111 SCRA 488.) x x x29

We also find that the procedural lapse committed by Landex was sufficiently cured when it filed
another motion setting a hearing for its defective motion for reconsideration. Records reveal that the
RTC set a hearing for the motion for reconsideration but Aneco’s counsel failed to appear. The RTC
then gave Aneco additional time to file comment on the motion for reconsideration.30

Aneco was afforded procedural due process when it was given an opportunity to oppose the motion
for reconsideration. It cannot argue unfair surprise because it was afforded ample time to file a
comment, as it did comment, on the motion for reconsideration. There being no substantial injury or
unfair prejudice, the RTC and the CA correctly ignored the procedural defect.

The RTC and the CA did not err in dismissing the complaint for injunction; factual findings and
conclusions of law of the RTC and the CA are afforded great weight and respect.

Anent the substantive issue, We agree with the RTC and the CA that the complaint for injunction
against Landex should be dismissed for lack of merit. What is involved here is an undue interference
on the property rights of a landowner to build a concrete wall on his own property. It is a simple case
of a neighbor, petitioner Aneco, seeking to restrain a landowner, respondent Landex, from fencing
his own land.

Article 430 of the Civil Code gives every owner the right to enclose or fence his land or tenement by
means of walls, ditches, hedges or any other means. The right to fence flows from the right of
ownership. As owner of the land, Landex may fence his property subject only to the limitations and
restrictions provided by law. Absent a clear legal and enforceable right, as here, We will not interfere
with the exercise of an essential attribute of ownership.

Well-settled is the rule that factual findings and conclusions of law of the trial court when affirmed by
the CA are accorded great weight and respect. Here, We find no cogent reason to deviate from the
factual findings and conclusion of law of the trial court and the appellate court. We have meticulously
reviewed the records and agree that Aneco failed to prove any clear legal right to prevent, much less
restrain, Landex from fencing its own property.

Aneco cannot rely on the road lot under the old subdivision project of FHDI because it knew at the
time of the sale that it was buying ordinary lots, not subdivision lots, from FHDI. This is clear from the
deed of sale between FHDI and Aneco where FHDI manifested that it was no longer interested in
pursuing its own subdivision project. If Aneco wants to transform its own lots into a subdivision
project, it must make its own provision for road lots. It certainly cannot piggy back on the road lot of
the defunct subdivision project of FHDI to the detriment of the new owner Landex. The RTC and the
CA correctly dismissed the complaint for injunction of Aneco for lack of merit.

WHEREFORE, the petition is DENIED and the appealed Decision AFFIRMED.

SO ORDERED.

RUBEN T. REYES
Associate Justice

G.R. Nos. L-33466-67 April 20, 1983

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MAMERTO NARVAEZ, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.

MAKASIAR, J.:

This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch I, in
Criminal Cases Nos. 1815 and 1816 for murder which, after a joint trial, resulted in the conviction of
the accused in a decision rendered on September 8, 1970, with the following pronouncement:

Thus, we have a crime of MURDER qualified by treachery with the aggravating

circumstance of evident premeditation offset by the mitigating circumstance of
voluntary surrender. The proper penalty imposable, therefore, is RECLUSION
PERPETUA (Arts. 248 and 64, Revised Penal Code).

Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the crime of
murder,

(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION PERPETUA,

to indemnify the heirs of the deceased Davis Q. Fleischer in the sum of P 12,000.00
as compensatory damages, P 10,000.00 as moral damages, P 2,000.00 as
attorney's fees, the offended party having been represented by a private prosecutor,
and to pay the costs;

(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION PERPETUA,

to indemnify the heirs of the deceased Flaviano Rubia in the sum of P12,000.00 as
compensatory damages, P10,000.00 as moral damages, P2,000.00 as attorney's
fees, the offended party having been represent by a private prosecutor, and to pay
the costs (p. 48, rec.).

The facts are summarized in the People's brief, as follows:

At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano and
Cesar Ibanez together with the two deceased Davis Fleischer and Flaviano Rubia,
were fencing the land of George Fleischer, father of deceased Davis Fleischer. The
place was in the boundary of the highway and the hacienda owned by George
Fleischer. This is located in the municipality of Maitum, South Cotabato. At the place
of the fencing is the house and rice drier of appellant Mamerto Narvaez (pp. 179-182,
 t.s.n., Pieza II). At that time, appellant was taking his rest, but when he heard that the
walls of his house were being chiselled, he arose and there he saw the fencing going
on. If the fencing would go on, appellant would be prevented from getting into his
house and the bodega of his ricemill. So he addressed the group, saying 'Pare, if
possible you stop destroying my house and if possible we will talk it over what is
good,' addressing the deceased Rubia, who is appellant's compadre. The deceased
Fleischer, however, answered: 'No, gademit, proceed, go ahead.' Appellant
apparently lost his equilibrium and he got his gun and shot Fleischer, hitting him. As
Fleischer fell down, Rubia ran towards the jeep, and knowing there is a gun on the
jeep, appellant fired at Rubia, likewise hitting him (pp. 127-133, t.s.n., Defense
transcript). Both Fleischer and Rubia died as a result of the shotting' (pp. 9-14, t.s.n.,
Pieza I, pp. 8-9, Appellant's Brief, p.161, rec.).

It appears, however, that this incident is intertwined with the long drawn out legal battle between the
Fleischer and Co., Inc. of which deceased Fleischer was the secretary-treasurer and deceased
Rubia the assistant manager, on the one hand, and the land settlers of Cotabato, among whom was
appellant.

From the available records of the related cases which had been brought to the Court of Appeals
(CA-G.R. Nos. 28858-R and 50583-R) and to this Court on certiorari (G.R. No. L-26757 and L-
45504), WE take judicial notice of the following antecedent facts:

Appellant was among those persons from northern and central Luzon who went to Mindanao in 1937
and settled in Maitum, a former sitio of Kiamba and now a separate municipality of South Cotabato.
He established his residence therein, built his house, cultivated the area, and was among those who
petitioned then President Manuel L. Quezon to order the subdivision of the defunct Celebes
Plantation and nearby Kalaong Plantation totalling about 2,000 hectares, for distribution among the
settlers.

Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American landowner
in Negros Oriental, filed sales application No. 21983 on June 3, 1937 over the same area formerly
leased and later abandoned by Celebes Plantation Company, covering 1,017.2234 hectares.

Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in 1941 but
the survey report was not submitted until 1946 because of the outbreak of the second world war.
According to the survey, only 300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba,
were set aside for Sales Application No. 21983, while the rest were subdivided into sublots of 5 to 6
hectares each to be distributed among the settlers (pp. 32-33, G.R. No. L-45504).

The 300 hectares set aside for the sales application of Fleischer and Company was declared open
for disposition, appraised and advertised for public auction. At the public auction held in Manila on
August 14, 1948, Fleischer and Company was the only bidder for P6,000.00. But because of
protests from the settlers the corresponding award in its favor was held in abeyance, while an
investigator was sent by the Director of Lands to Kiamba in the person of Atty. Jose T. Gozon Atty.
Gozon came back after ten days with an amicable settlement signed by the representative of the
settlers. This amicable settlement was later repudiated by the settlers, but the Director of Lands,
acting upon the report of Atty. Gozon, approved the same and ordered the formal award of the land
in question to Fleischer and Company. The settlers appealed to the Secretary of Agriculture and
Natural Resources, who, however, affirmed the decision in favor of the company.

On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of Cotabato
which then consisted only of one sala, for the purpose of annulling the order of the Secretary of
Agriculture and Natural Resources which affirmed the order of the Director of Lands awarding the
contested land to the company. The settlers as plaintiffs, lost that case in view of the amicable
settlement which they had repudiated as resulting from threats and intimidation, deceit,
misrepresentation and fraudulent machination on the part of the company. They appealed to the
Court of Appeals (CA-G.R. No. 28858-R) which likewise affirmed on August 16, 1965 the decision of
the Court of First Instance in favor of the company.

This resulted in the ouster of the settlers by an order of the Court of First Instance dated September
24, 1966, from the land which they had been occupying for about 30 years. Among those ejected
was the appellant who, to avoid trouble, voluntarily dismantled his house, built in 1947 at a cost of
around P20,000.00, and transferred to his other house which he built in 1962 or 1963 near the
highway. The second house is not far from the site of the dismantled house. Its ground floor has a
store operated by Mrs. June Talens who was renting a portion thereof. He also transferred his store
from his former residence to the house near the highway. Aside from the store, he also had a rice
mill located about 15 meters east of the house and a concrete pavement between the rice mill and
the house, which is used for drying grains and copra.

On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa and
other leaders filed Civil Case No. 755 in the Court of First Instance of Cotabato, Branch I. to obtain
an injunction or annulment of the order of award with prayer for preliminary injunction. During the
pendency of this case, appellant on February 21, 1967 entered into a contract of lease with the
company whereby he agreed to lease an area of approximately 100 to 140 square meters of Lot No.
38 from the company (Exh. 9, p. 1, Folder of Exhibits for Defense) for a consideration of P16.00
monthly. According to him, he signed the contract although the ownership of the land was still
uncertain, in order to avoid trouble, until the question of ownership could be decided. He never paid
the agreed rental, although he alleges that the milling job they did for Rubia was considered
payment. On June 25, 1968, deceased Fleischer wrote him a letter with the following tenor:

You have not paid six months rental to Fleischers & Co., Inc. for that portion of land in which
your house and ricemill are located as per agreement executed on February 21, 1967. You
have not paid as as even after repeated attempts of collection made by Mr. Flaviano Rubia and
myself.

In view of the obvious fact that you do not comply with the agreement, I have no alternative but
to terminate our agreement on this date.

I am giving you six months to remove your house, ricemill, bodega, and water pitcher pumps
from the land of Fleischers & Co., Inc. This six- month period shall expire on December 31,
1966.

In the event the above constructions have not been removed within the six- month period, the
company shall cause their immediate demolition (Exhibit 10, p. 2, supra).

On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot 38 by
putting bamboo posts along the property line parallel to the highway. Some posts were planted right
on the concrete drier of appellant, thereby cutting diagonally across its center (pp. 227-228, t.s.n.,
Vol. 2), with the last post just adjacent to appellant's house (p. 231, t.s.n., supra). The fence, when
finished, would have the effect of shutting off the accessibility to appellant's house and rice mill from
the highway, since the door of the same opens to the Fleischers' side. The fencing continued on that
fateful day of August 22, 1968, with the installation of four strands of barbed wire to the posts.
At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his farm all
morning, was awakened by some noise as if the wall of his house was being chiselled. Getting up
and looking out of the window, he found that one of the laborers of Fleischer was indeed chiselling
the wall of his house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing the
barbed wire and deceased Fleischer was commanding his laborers. The jeep used by the deceased
was parked on the highway. The rest of the incident is narrated in the People's Brief as above-
quoted. Appellant surrendered to the police thereafter, bringing with him shotgun No. 1119576 and
claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).

Appellant now questions the propriety of his conviction, assigning the following errors:

First Assignment of Error: That the lower court erred in convicting defendant-

appellant despite the fact that he acted in defense of his person; and

Second Assignment of Error: That the court a quo also erred in convicting defendant-
appellant although he acted in defense of his rights (p. 20 of Appellant's Brief, p. 145,
rec.).

The act of killing of the two deceased by appellant is not disputed. Appellant admitted having shot
them from the window of his house with the shotgun which he surrendered to the police authorities.
He claims, however, that he did so in defense of his person and of his rights, and therefore he
should be exempt from criminal liability.

Defense of one's person or rights is treated as a justifying circumstance under Art. 11, par. 1 of the
Revised Penal Code, but in order for it to be appreciated, the following requisites must occur:

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 (Art.
11, par. 1, Revised Penal Code, as amended).

The aggression referred to by appellant is the angry utterance by deceased Fleischer of the
following words: "Hindi, sigue, gademit, avante", in answer to his request addressed to
his compadre, the deceased Rubia, when he said, "Pare, hinto mona ninyo at pag-usapan natin
kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This was in reaction to his having been awakened
to see the wall of his house being chiselled. The verbal exchange took place while the two deceased
were on the ground doing the fencing and the appellant was up in his house looking out of his
window (pp. 225-227, supra). According to appellant, Fleischer's remarks caused this reaction in
him: "As if, I lost my senses and unknowingly I took the gun on the bed and unknowingly also I shot
Mr. Fleischer, without realizing it, I shot Mr. Fleischer" (p. 132, supra). As for the shooting of Rubia,
appellant testified:

When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing the shot,
Mr. Rubia looked at Mr. Fleischer and when Mr. Fleischer fell down, Mr. Rubia ran
towards the jeep and knowing that there was a firearm in the jeep and thinking that if
he will take that firearm he will kill me, I shot at him (p. 132, supra, Emphasis
supplied).
The foregoing statements of appellant were never controverted by the prosecution. They claim,
however, that the deceased were in lawful exercise of their rights of ownership over the land in
question, when they did the fencing that sealed off appellant's access to the highway.

A review of the circumstances prior to the shooting as borne by the evidence reveals that five
persons, consisting of the deceased and their three laborers, were doing the fencing and chiselling
of the walls of appellant's house. The fence they were putting up was made of bamboo posts to
which were being nailed strands of barbed wire in several layers. Obviously, they were using tools
which could be lethal weapons, such as nail and hammer, bolo or bamboo cutter, pliers, crowbar,
and other necessary gadgets. Besides, it was not disputed that the jeep which they used in going to
the place was parked just a few steps away, and in it there was a gun leaning near the steering
wheel. When the appellant woke up to the sound of the chiselling on his walls, his first reaction was
to look out of the window. Then he saw the damage being done to his house, compounded by the
fact that his house and rice mill will be shut off from the highway by the fence once it is finished. He
therefore appealed to his compadre, the deceased Rubia, to stop what they were doing and to talk
things over with him. But deceased Fleischer answered angrily with 'gademit' and directed his men
to proceed with what they were doing.

The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would have
resulted in the further chiselling of the walls of appellant's house as well as the closure of the access
to and from his house and rice mill-which were not only imminent but were actually in progress.
There is no question, therefore, that there was aggression on the part of the victims: Fleischer was
ordering, and Rubia was actually participating in the fencing. This was indeed aggression, not on the
person of appellant, but on his property rights.

The question is, was the aggression unlawful or lawful? Did the victims have a right to fence off the
contested property, to destroy appellant's house and to shut off his ingress and egress to his
residence and the highway?

Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land or
tenements.

However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of the
order of award to Fleischer and Company was still pending in the Court of First Instance of
Cotabato. The parties could not have known that the case would be dismissed over a year after the
incident on August 22, 1968, as it was dismissed on January 23, 1970 on ground of res judicata, in
view of the dismissal in 1965 (by the Court of Appeals) of Civil Case No. 240 filed in 1950 for the
annulment of the award to the company, between the same parties, which the company won by
virtue of the compromise agreement in spite of the subsequent repudiation by the settlers of said
compromise agreement; and that such 1970 dismissal also carried the dismissal of the supplemental
petition filed by the Republic of the Philippines on November 28, 1968 to annul the sales patent and
to cancel the corresponding certificate of title issued to the company, on the ground that the Director
of Lands had no authority to conduct the sale due to his failure to comply with the mandatory
requirements for publication. The dismissal of the government's supplemental petition was premised
on the ground that after its filing on November 28, 1968, nothing more was done by the petitioner
Republic of the Philippines except to adopt all the evidence and arguments of plaintiffs with whom it
joined as parties-plaintiffs.

Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment in Civil
Case No. 755 filed on November 14, 1966 and his execution of the contract of lease on February 21,
1967 was just to avoid trouble. This was explained by him during cross-examination on January 21,
1970, thus:
 It happened this way: we talked it over with my Mrs. that we better rent the place
because even though we do not know who really owns this portion to avoid trouble.
To avoid trouble we better pay while waiting for the case because at that time, it was
not known who is the right owner of the place. So we decided until things will clear up
and determine who is really the owner, we decided to pay rentals (p. 169, t.s.n.,
Vol.6).

In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, Defense Exhibits)
within which to vacate the land. He should have allowed appellant the peaceful enjoyment of his
properties up to that time, instead of chiselling the walls of his house and closing appellant's
entrance and exit to the highway.

The following provisions of the Civil Code of the Philippines are in point:

Art. 536. In no case may possession be acquired through force or intimidation as

long as there is a possessor who objects thereto. He who believes that he has an
action or a right to deprive another of the holding of a thing must invoke the aid of the
competent court, if the holder should refuse to deliver the thing.

Art. 539. Every possessor has a right to be respected in his possession; and should
he be disturbed therein he shall be protected in or restored to said possession by the
means established by the laws and the Rules of Court (Articles 536 and 539, Civil
Code of the Philippines).

Conformably to the foregoing provisions, the deceased had no right to destroy or cause damage to
appellant's house, nor to close his accessibility to the highway while he was pleading with them to
stop and talk things over with him. The assault on appellant's property, therefore, amounts to
unlawful aggression as contemplated by law.

Illegal aggression is equivalent to assault or at least threatened assault of immediate

and imminent kind (People vs. Encomiendas, 46 SCRA 522).

In the case at bar, there was an actual physical invasion of appellant's property which he had the
right to resist, pursuant to Art. 429 of the Civil Code of the Philippines which provides:

Art. 429. The owner or lawful possessor of a thing has the right to exclude any
person from the enjoyment and disposal thereof. For this purpose, he may use such
force as may be reasonably necessary to repel or prevent an actual or threatened
unlawful physical invasion or usurpation of his property (Emphasis supplied).

The reasonableness of the resistance is also a requirement of the justifying circumstance of self-
defense or defense of one's rights under paragraph 1 of Article 11, Revised Penal Code. When the
appellant fired his shotgun from his window, killing his two victims, his resistance was
disproportionate to the attack.

WE find, however, that the third element of defense of property is present, i.e., lack of sufficient
provocation on the part of appellant who was defending his property. As a matter of fact, there was
no provocation at all on his part, since he was asleep at first and was only awakened by the noise
produced by the victims and their laborers. His plea for the deceased and their men to stop and talk
things over with him was no provocation at all.
Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the elements
for justification are present. He should therefore be held responsible for the death of his victims, but
he could be credited with the special mitigating circumstance of incomplete defense, pursuant to
paragraph 6, Article 13 of the Revised Penal Code.

The crime committed is homicide on two counts. The qualifying circumstance of treachery cannot be
appreciated in this case because of the presence of provocation on the part of the deceased. As WE
held earlier in People vs. Manlapaz (55 SCRA 598), the element of a sudden unprovoked attack is
therefore lacking.

Moreover, in order to appreciate alevosia, "it must clearly appear that the method of assault adopted
by the aggressor was deliberately chosen with a special view to the accomplishment of the act
without risk to the assailant from any defense that the party assailed might have made. This cannot
be said of a situation where the slayer acted instantaneously ..." (People vs. Cañete, 44 Phil. 481).

WE likewise find the aggravating (qualifying) circumstance of evident premeditation not sufficiently
established. The only evidence presented to prove this circumstance was the testimony of Crisanto
Ibañez, 37 years old, married, resident of Maitum, South Cotabato, and a laborer of Fleischer and
Company, which may be summarized as follows:

On August 20, 1968 (two days before the incident) at about 7:00 A.M., he was drying
corn near the house of Mr. and Mrs. Mamerto Narvaez at the crossing, Maitum,
South Cotabato, when the accused and his wife talked to him. Mrs. Narvaez asked
him to help them, as he was working in the hacienda. She further told him that if they
fenced their house, there is a head that will be broken. Mamerto Narvaez added
'Noy, it is better that you will tell Mr. Fleischer because there will be nobody who will
break his head but I will be the one.' He relayed this to Mr. Flaviano Rubia, but the
latter told him not to believe as they were only Idle threats designed to get him out of
the hacienda (pp. 297-303, t.s.n., Vol. 2).

This single evidence is not sufficient to warrant appreciation of the aggravating circumstance of
evident premeditation. As WE have consistently held, there must be "direct evidence of the planning
or preparation to kill the victim, .... it is not enough that premeditation be suspected or surmised, but
the criminal intent must be evidenced by notorious outward acts evincing the determination to
commit the crime" (People vs. Ordioles, 42 SCRA 238). Besides, there must be a "showing" that the
accused premeditated the killing; that the culprit clung to their (his) premeditated act; and that there
was sufficient interval between the premeditation and the execution of the crime to allow them (him)
to reflect upon the consequences of the act" (People vs. Gida, 102 SCRA 70).

Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the deceased Davis
Fleischer, neutralizes his credibility.

Since in the case at bar, there was no direct evidence of the planning or preparation to kill the
victims nor that the accused premeditated the killing, and clung to his premeditated act, the trial
court's conclusion as to the presence of such circumstance may not be endorsed.

Evident premeditation is further negated by appellant pleading with the victims to stop the fencing
and destroying his house and to talk things over just before the shooting.

But the trial court has properly appreciated the presence of the mitigating circumstance of voluntary
surrender, it appearing that appellant surrendered to the authorities soon after the shooting.
Likewise, We find that passion and obfuscation attended the commission of the crime. The appellant
awoke to find his house being damaged and its accessibility to the highway as well as of his rice mill
bodega being closed. Not only was his house being unlawfully violated; his business was also in
danger of closing down for lack of access to the highway. These circumstances, coming so near to
the time when his first house was dismantled, thus forcing him to transfer to his only remaining
house, must have so aggravated his obfuscation that he lost momentarily all reason causing him to
reach for his shotgun and fire at the victims in defense of his rights. Considering the antecedent facts
of this case, where appellant had thirty years earlier migrated to this so-called "land of promise" with
dreams and hopes of relative prosperity and tranquility, only to find his castle crumbling at the hands
of the deceased, his dispassionate plea going unheeded-all these could be too much for any man-he
should be credited with this mitigating circumstance.

Consequently, appellant is guilty of two crimes of homicide only, the killing not being attended by any
qualifying nor aggravating circumstance, but extenuated by the privileged mitigating circumstance of
incomplete defense-in view of the presence of unlawful aggression on the part of the victims and
lack of sufficient provocation on the part of the appellant-and by two generic mitigating circumstance
of voluntary surrender and passion and obfuscation.

Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion
temporal. Pursuant to Article 69, supra, the penalty lower by one or two degrees shall be imposed if
the deed is not wholly excusable by reason of the lack of some of the conditions required to justify
the same. Considering that the majority of the requirements for defense of property are present, the
penalty may be lowered by two degrees, i.e., to prision correccional And under paragraph 5 of Article
64, the same may further be reduced by one degree, i.e., arresto mayor, because of the presence of
two mitigating circumstances and no aggravating circumstance.

The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan American World
Airways (43 SCRA 397), the award for moral damages was reduced because the plaintiff contributed
to the gravity of defendant's reaction. In the case at bar, the victims not only contributed but they
actually provoked the attack by damaging appellant's properties and business. Considering
appellant's standing in the community, being married to a municipal councilor, the victims' actuations
were apparently designed to humiliate him and destroy his reputation. The records disclose that his
wife, councilor Feliza Narvaez, was also charged in these two cases and detained without bail
despite the absence of evidence linking her to the killings. She was dropped as a defendant only
upon motion of the prosecution dated October 31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816),
but acted upon on November 4, 1968 (p. 58, CFI rec. of Criminal Case No. 1815).

Moreover, these cases arose out of an inordinate desire on the part of Fleischer and Company,
despite its extensive landholdings in a Central Visayan province, to extend its accumulation of public
lands to the resettlement areas of Cotabato. Since it had the capability-financial and otherwise-to
carry out its land accumulation scheme, the lowly settlers, who uprooted their families from their
native soil in Luzon to take advantage of the government's resettlement program, but had no
sufficient means to fight the big landowners, were the ones prejudiced. Thus, the moral and material
suffering of appellant and his family deserves leniency as to his civil liability.

Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision
correccional or arrests mayor and fine who has no property with which to meet his civil liabilities to
serve a subsidiary imprisonment at the rate of one (1) day for each P 2.50. However, the
amendment introduced by Republic Act No. 5465 on April 21, 1969 made the provisions of Art. 39
applicable to fines only and not to reparation of the damage caused, indemnification of
consequential damages and costs of proceedings. Considering that Republic Act 5465 is favorable
to the accused who is not a habitual delinquent, it may be given retroactive effect pursuant to Article
22 of the Revised Penal Code.

WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONLY TWO

(2) HOMICIDES, MITIGATED BY THE PRIVILEGED EXTENUATING CIRCUMSTANCE OF
INCOMPLETE SELF-DEFENSE AS WELL AS BY TWO (2) GENERIC MITIGATING
CIRCUMSTANCES OF VOLUNTARY SURRENDER AND OBFUSCATION, WITHOUT ANY
AGGRAVATING CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN
IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO INDEMNIFY EACH GROUP
OF HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN THE SUM OF FOUR
THOUSAND (P 4,000.00) PESOS, WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY
AWARD FOR MORAL DAMAGES AND ATTORNEY'S FEES.

CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST FOURTEEN
(14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST 22,1968, HIS
IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.

SO ORDERED.

Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De Castro, Melencio-Herrera, Escolin

Vasquez and Relova, JJ., concur.

Aquino, J., is on leave.

Plana, J., in the result.

Separate Opinions

ABAD SANTOS, J., dissenting:

I dissent. The self-defense of the Revised Penal Code refers to unlawful aggression on persons, not
property Plana, J., in the result.

GUTIERREZ, JR., J., dissenting:

While I agree with the order to release the appellant, I am constrained to dissent in part. It is true that
Art. 429, Civil Code of the Philippines, provides that the owner or legal possessor of a thing may use
such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful
physical invasion or usurpation of his property. It seems to me, however, that an attack on the
person defending his property is an indispensable element where an accused pleads self-defense
but what is basically defended is only property.

Defense of property is not of such importance as the right to life and defense of property can only be
invoked when it is coupled with some form of attack on the person of one entrusted with said
property. The defense of property, whether complete or incomplete, to be available in prosecutions
for murder or homicide must be coupled with an attack by the one getting the property on the person
defending it.

In the case now before Us, there is absolutely no evidence that an attack was attempted, much less
made upon the person of appellant. The mere utterance "No, gademit proceed, go ahead" is not the
unlawful aggression which entitles appellant to the pela of self-defense. I agree with the majority
opinion that the crime is homicide but without any privileged mitigating circumstance.

Therefore, since the appellant is guilty beyond reasonable doubt of two (2) homicides, mitigated by
the two generic mitigating circumstances of voluntary surrender and obfuscation, without any
aggravating circumstance, maximum the sentence the appellant should have served was prision
mayor plus the indemnification to each group of heirs of Davis Fleischer and of Flamiano Rubia of
the sum of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment, but without any
award for moral damages and attorney's fees.

Considering that appellant has been under detention for almost fourteen (14) years now since
August 22, 1968, he has served the penalty and should be released.

Separate Opinions

ABAD SANTOS, J., dissenting:

I dissent. The self-defense of the Revised Penal Code refers to unlawful aggression on persons, not
property Plana, J., in the result.

GUTIERREZ, JR., J., dissenting:

While I agree with the order to release the appellant, I am constrained to dissent in part. It is true that
Art. 429, Civil Code of the Philippines, provides that the owner or legal possessor of a thing may use
such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful
physical invasion or usurpation of his property. It seems to me, however, that an attack on the
person defending his property is an indispensable element where an accused pleads self-defense
but what is basically defended is only property.

Defense of property is not of such importance as the right to life and defense of property can only be
invoked when it is coupled with some form of attack on the person of one entrusted with said
property. The defense of property, whether complete or incomplete, to be available in prosecutions
for murder or homicide must be coupled with an attack by the one getting the property on the person
defending it.

In the case now before Us, there is absolutely no evidence that an attack was attempted, much less
made upon the person of appellant. The mere utterance "No, gademit proceed, go ahead" is not the
unlawful aggression which entitles appellant to the pela of self-defense. I agree with the majority
opinion that the crime is homicide but without any privileged mitigating circumstance.

Therefore, since the appellant is guilty beyond reasonable doubt of two (2) homicides, mitigated by
the two generic mitigating circumstances of voluntary surrender and obfuscation, without any
aggravating circumstance, maximum the sentence the appellant should have served was prision
mayor plus the indemnification to each group of heirs of Davis Fleischer and of Flamiano Rubia of
the sum of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment, but without any
award for moral damages and attorney's fees.

Considering that appellant has been under detention for almost fourteen (14) years now since
August 22, 1968, he has served the penalty and should be released.
[G.R. No. 76216. September 14, 1989.]

GERMAN MANAGEMENT & SERVICES, INC., Petitioner, v. HON. COURT OF APPEALS and

ORLANDO GERNALE, Respondents.

[G.R. No. 76217. September 14, 1989.]

GERMAN MANAGEMENT & SERVICES, INC., Petitioner, v. HON. COURT OF APPEALS and

ERNESTO VILLEZA, Respondents.

Alam, Verano & Associates for Petitioner.

Francisco D. Lozano for Private Respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; NOT DENIED WHERE A PARTY
WAS AFFORDED OPPORTUNITY TO BE HEARD. — The Court of Appeals need not require
petitioner to file an answer for due process to exist. The comment filed by petitioner on February 26,
1986 has sufficiently addressed the issues presented in the petition for review filed by private
respondents before the Court of Appeals. Having heard both parties, the Appellate Court need not
await or require any other additional pleading. Moreover, the fact that petitioner was heard by the
Court of Appeals on its motion for reconsideration negates any violation of due process.

2. REMEDIAL LAW; SPECIAL CIVIL ACTION; FORCIBLE ENTRY; CAN BE COMMENCED BY

THE ACTUAL POSSESSORS OF THE LAND. — Notwithstanding petitioner’s claim that it was duly
authorized by the owners to develop the subject property, private respondents, as actual
possessors, can commence a forcible entry case against petitioner because ownership is not in
issue. Forcible entry is merely a quieting process and never determines the actual title to an estate.
Title is not involved.

3. ID.; ID.; ID.; A PARTY IN PRIOR POSSESSION CAN RECOVER OCCUPATION OF THE
PROPERTY EVEN AGAINST THE OWNER HIMSELF. — It must be stated that regardless of the
actual condition of the title to the property, the party in peaceable quiet possession shall not be
turned out by a strong hand, violence or terror. Thus, a party who can prove prior possession can
recover such possession even against the owner himself. Whatever may be the character of his prior
possession, if he has in his favor priority in time, he has the security that entitles him to remain on
the property until he is lawfully ejected by a person having a better right by accion publiciana or
accion reivindicatoria.

4. CIVIL LAW; OWNERSHIP; DOCTRINE OF SELF-HELP; AVAILABLE ONLY AT THE TIME OF

ACTUAL OR THREATENED DISPOSSESSION. — The doctrine of self-help enunciated in Article
429 of the New Civil Code. Such justification is unavailing because the doctrine of self-help can only
be exercised at the time of actual or threatened dispossession which is absent in the case at bar.
When possession has already been lost, the owner must resort to judicial process for the recovery of
property. This is clear from Article 536 of the Civil Code which states," (I)n no case may possession
be acquired through force or intimidation as long as there is a possessor who objects thereto. He
who believes that he has an action or right to deprive another of the holding of a thing, must invoke
the aid of the competent court, if the holder should refuse to deliver the thing."
DECISION

FERNAN, C.J.:

Spouses Cynthia Cuyegkeng Jose and Manuel Rene Jose, residents of Pennsylvania, Philadelphia,
USA are the owners of a parcel of land situated in Sitio Inarawan, San Isidro, Antipolo, Rizal, with an
area of 232,942 square meters and covered by TCT No. 50023 of the Register of Deeds of the
province of Rizal issued on September 11, 1980 which canceled TCT No. 56762/ T-560. The land
was originally registered on August 5, 1948 in the Office of the Register of Deeds of Rizal as OCT
No. 19, pursuant to a Homestead Patent granted by the President of the Philippines on July 27,
1948, under Act No. 141.

On February 26, 1982, the spouses Jose executed a special power of attorney authorizing petitioner
German Management Services to develop their property covered by TCT No. 50023 into a
residential subdivision. Consequently, petitioner on February 9, 1983 obtained Development Permit
No. 00424 from the Human Settlements Regulatory Commission for said development. Finding that
part of the property was occupied by private respondents and twenty other persons, petitioner
advised the occupants to vacate the premises but the latter refused. Nevertheless, petitioner
proceeded with the development of the subject property which included the portions occupied and
cultivated by private respondents.chanrobles.com : virtual law library

Private respondents filed an action for forcible entry against petitioner before the Municipal Trial
Court of Antipolo, Rizal, alleging that they are mountainside farmers of Sitio Inarawan, San Isidro,
Antipolo, Rizal and members of the Concerned Citizens of Farmer’s Association; that they have
occupied and tilled their farmholdings some twelve to fifteen years prior to the promulgation of P. D.
No. 27; that during the first week of August 1983, Petitioner, under a permit from the Office of the
Provincial Governor of Rizal, was allowed to improve the Barangay Road at Sitio Inarawan, San
Isidro, Antipolo, Rizal at its expense, subject to the condition that it shall secure the needed right of
way from the owners of the lot to be affected; that on August 15, 1983 and thereafter, petitioner
deprived private respondents of their property without due process of law by: (1) forcibly removing
and destroying the barbed wire fence enclosing their farmholdings without notice; (2) bulldozing the
rice, corn, fruit bearing trees and other crops of private respondents by means of force, violence and
intimidation, in violation of P.D. 1038 and (3) trespassing, coercing and threatening to harass,
remove and eject private respondents from their respective farmholdings in violation of P.D. Nos.
316, 583, 815, and 1028. 1

On January 7, 1985, the Municipal Trial Court dismissed private respondents’ complaint for forcible
entry. 2 On appeal, the Regional Trial Court of Antipolo, Rizal, Branch LXXI sustained the dismissal
by the Municipal Trial Court. 3

Private respondents then filed a petition for review with the Court of Appeals. On July 24, 1986, said
court gave due course to their petition and reversed the decisions of the Municipal Trial Court and
the Regional Trial Court. 4

The Appellate Court held that since private respondents were in actual possession of the property at
the time they were forcibly ejected by petitioner, private respondents have a right to commence an
action for forcible entry regardless of the legality or illegality of possession. 5 Petitioner moved to
reconsider but the same was denied by the Appellate Court in its resolution dated September 26,
1986.Hence, this recourse.

The issue in this case is whether or not the Court of Appeals denied due process to petitioner when
it reversed the decision of the court a quo without giving petitioner the opportunity to file its answer
and whether or not private respondents are entitled to file a forcible entry case against petitioner. 7
We affirm. The Court of Appeals need not require petitioner to file an answer for due process to
exist. The comment filed by petitioner on February 26, 1986 has sufficiently addressed the issues
presented in the petition for review filed by private respondents before the Court of Appeals. Having
heard both parties, the Appellate Court need not await or require any other additional pleading.
Moreover, the fact that petitioner was heard by the Court of Appeals on its motion for reconsideration
negates any violation of due process.

Notwithstanding petitioner’s claim that it was duly authorized by the owners to develop the subject
property, private respondents, as actual possessors, can commence a forcible entry case against
petitioner because ownership is not in issue. Forcible entry is merely a quieting process and never
determines the actual title to an estate. Title is not involved. 8

In the case at bar, it is undisputed that at the time petitioner entered the property, private
respondents were already in possession thereof. There is no evidence that the spouses Jose were
ever in possession of the subject property. On the contrary, private respondents’ peaceable
possession was manifested by the fact that they even planted rice, corn and fruit bearing trees
twelve to fifteen years prior to petitioner’s act of destroying their crops.

Although admittedly petitioner may validly claim ownership based on the muniments of title it
presented, such evidence does not responsively address the issue of prior actual possession raised
in a forcible entry case. It must be stated that regardless of the actual condition of the title to the
property, the party in peaceable quiet possession shall not be turned out by a strong hand, violence
or terror. 9 Thus, a party who can prove prior possession can recover such possession even against
the owner himself. Whatever may be the character of his prior possession, if he has in his favor
priority in time, he has the security that entitles him to remain on the property until he is lawfully
ejected by a person having a better right by accion publiciana or accion reivindicatoria. 10

Both the Municipal Trial Court and the Regional Trial Court have rationalized petitioner’s drastic
action of bulldozing and destroying the crops of private respondents on the basis of the doctrine of
self-help enunciated in Article 429 of the New Civil Code. 11 Such justification is unavailing because
the doctrine of self-help can only be exercised at the time of actual or threatened dispossession
which is absent in the case at bar. When possession has already been lost, the owner must resort to
judicial process for the recovery of property. This is clear from Article 536 of the Civil Code which
states," (I)n no case may possession be acquired through force or intimidation as long as there is a
possessor who objects thereto. He who believes that he has an action or right to deprive another of
the holding of a thing, must invoke the aid of the competent court, if the holder should refuse to
deliver the thing."cralaw virtua1aw library

WHEREFORE, the Court resolved to DENY the instant petition. The decision of the Court of Appeals
dated July 24, 1986 is hereby AFFIRMED. Costs against petitioner.

SO ORDERED.
G.R. No. 124058               December 10, 2003
PEOPLE OF THE PHILIPPINES, appellee,
vs.
JESUS G. RETUBADO alias "JESSIE," appellant.

DECISION

CALLEJO, SR., J.:

This is an appeal from the Decision1 of the Regional Trial CouG.R. No. 124058               December
10, 2003

PEOPLE OF THE PHILIPPINES, appellee,

vs.
JESUS G. RETUBADO alias "JESSIE," appellant.

DECISION

CALLEJO, SR., J.:

This is an appeal from the Decision of the Regional Trial Court, Toledo City, Branch 29, in Criminal
1 

Case No. TCS-2153 convicting the appellant Jesus G. Retubado of murder, sentencing him to
reclusion perpetua, and directing him to indemnify the heirs of the victim Emmanuel Cañon the sum
of P50,000.00.

The appellant was indicted for murder in an Information, the accusatory portion of which reads:

That on the 5th day of November, 1993 at 9:30 o’clock in the evening, more or less, at Barangay I
Poblacion, Municipality of Tuburan, Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with deliberate intent to kill, by means of treachery,
evident premeditation and taking advantage of superior strength, did then and there willfully,
unlawfully and feloniously attack, assault and shoot Emmanuel Cañon with the use of unlicensed
revolver of unknown caliber, thereby hitting the latter on his forehead, resulting to the instantaneous
death of the said victim.

CONTRARY TO LAW. 2

Shortly before November 5, 1993, someone played a joke on Edwin Retubado, the appellant’s
younger brother who was mentally ill. Someone inserted a lighted firecracker in a cigarette pack and
gave it to Edwin. He brought the cigarette home and placed it on the dining table as he was having
dinner with his father. Momentarily, the firecracker exploded. The suspect was Emmanuel Cañon,
Jr., The Cañons and the appellant were neighbors. The matter was brought to the attention of the
barangay captain who conducted an investigation. It turned out that Emmanuel Cañon, Jr. was not
the culprit. The barangay captain considered the matter closed. The appellant, however, was bent
on confronting Emmanuel Cañon, Jr.

On November 5, 1993, at about 9:00 p.m., 50-year-old Emmanuel Cañon, Sr., a pedicab driver
called it a day and decided to go home after a day’s work. He drove his pedicab and stopped at the
junction of Rizal and Gallardo Streets, at the poblacion of Tuburan. The appellant, who was
conversing with Marcial Luciño saw him. "Noy, why is [it] your son did something to my brother?"
Emmanuel ignored the appellant. The appellant was incensed and ran after Emmanuel. He overtook
Emmanuel, grabbed and pushed the pedicab which nearly fell into a canal. Emmanuel again ignored
the appellant and pedaled on until he reached his house. His wife, Norberta Cañon was in the
balcony of their house, above the porch waiting for him to arrive. Emmanuel, Jr., meanwhile, was
already asleep. Undeterred, the appellant continued following Emmanuel.

Shortly after Emmanuel had entered his house, the appellant arrived and tarried at the porch.
Emmanuel suddenly opened the door and demanded to know why he was being followed. The
appellant told Emmanuel that he just wanted to talk to Emmanuel, Jr., but Emmanuel told the
appellant that his son was already asleep. Norberta went down from the balcony and placed her
hand on her husband’s shoulder to pacify him.

The appellant forthwith pulled out a handgun from under his T-shirt and shot Emmanuel on the
forehead. The latter fell to the floor as the appellant walked away from the scene. Norberta shouted
for help. The neighbors, her daughter, and her son-in-law arrived. They brought Emmanuel to the
Tuburan District Hospital, but the victim died shortly thereafter. Dr. Ivar G. Arellano, the Municipal
Health Officer, performed an autopsy on the cadaver of Emmanuel and prepared a report thereon
with the following findings:

Examination in Detail:

On detailed examination, a gunshot wound was found at the left side of the forehead, measuring 1
cm. in diameter. At the skin surrounding this wound was found powder burns which measured 3
cms. in diameter as the skin had been blackened and burned by powder of the bullet. The underlying
frontal bone was fractured and depressed. The underlying meninges of the brain as well as the
frontal area of the brain was traumatized and injured. Blood and cerebrospinal fluid were leaking
from this wound. The edges of this bullet wound was inverted thus this was the gunshot entry
wound. The wound was found to be circular in shape. The exit wound was found at the left parietal
bone measuring 1.2 cm. in size or diameter for this wound communicated with the entry wound of
the left side of the forehead. The connection from the wound of entry to the exit wound measured 8
cms. The parietal bone was fractured and was depressed and the parietal part of the brain and
meninges was traumatized. Blood and cerebrospinal fluid as well as brain tissues leaked out from
this wound.

Possible cause of death:

1. Gunshot wound at the head (left side) with injury to brain and meninges

2. Hypovolemic shock secondary to loss of blood (Severe loss of blood)

(Sgd.) Ivar G. Arellano

MUN. Health Officer 3

Dr. Charity Patalinghug and the victim’s daughter Loreta C. Claro signed Emmanuel’s Certificate of
Death. The appellant surrendered to the police authorities but failed to surrender the firearm he used
4 

to kill the victim. Forensic Officer Myrna P. Areola of the PNP Regional Office subjected the
appellant to paraffin tests. The Chemical Analysis of the paraffin casts gave the following results:

FINDINGS:

...
 1. POSITIVE for the presence of gunpowder residue on his left hand cast.

2. NEGATIVE for the presence of gunpowder residue on his right hand cast. 5

Norberta also testified on the expenses incurred by her family due to her husband’s death. No
documentary evidence was, however, offered to support the same. She declared that she felt sad
and lonely as a result of her husband's death.

The Case for the Appellant

The appellant admitted shooting the victim but claimed that he was merely performing a lawful act
with due care; hence, cannot be held criminally liable for the victim’s death. He testified that when he
insisted that Emmanuel wake up his son, Emmanuel went to his room and emerged therefrom
holding a handgun with his right hand. Emmanuel’s trigger finger was outside the trigger guard, and
he held the firearm with the muzzle facing downward. Fearing that he would be shot, the appellant
took hold of Emmanuel’s right hand with his left, and pulled the gun towards Emmanuel’s stomach.
The appellant grabbed Emmanuel’s free hand with his right hand, and the old man almost fell on his
knees to the ground. Emmanuel still resisted. The appellant pulled the gun to the level of
Emmanuel’s forehead, and the gun suddenly went off. The bullet hit Emmanuel’s forehead. Norberta
fled from the house. For his part, the appellant rushed to his house to change clothes. He placed the
gun on the dining table before entering his bedroom. When he went back to the dining room to get
the gun, his younger sister, Enrica told him that their brother Edwin had taken the gun. He found
Edwin outside their house near the church, and the latter told the appellant that he threw the gun into
the sea. When the appellant asked his brother to show him where he threw the gun, Edwin refused
to do so.

Marcial Luciño corroborated the appellant’s testimony. He testified that he was talking with the
appellant at around 9:00 p.m. at the junction of Rizal and Gallardo streets when the victim
Emmanuel passed by in his pedicab. When the appellant called the victim, the latter ignored the call,
prompting the appellant to chase the victim, and eventually push the pedicab into a canal.

The appellant’s father, Iñigo Retubado, testified that on the evening of November 5, 1993, he was in
their house with Edwin, his son who was mentally-ill. It was already late when the appellant arrived.
The appellant was disheveled, and laid down the gun he was carrying on the table. The appellant
told his father that he would surrender to the police because he had shot somebody. The appellant
6 

thereafter went to his room to change clothes while Iñigo went to the comfort room to answer the call
of nature. When he was done, he saw the appellant frantically looking for the gun. As Edwin was
also nowhere to be found, Iñigo concluded that Edwin might have taken the gun with him. He also
testified on Edwin’s mental imbalance and on the latter’s confinement at the Psychiatric Department
of the Don Vicente Sotto Memorial Medical Center in Cebu City sometime in 1991. 7

On November 6, 1993, the appellant surrendered to the police authorities. Although he was required
by the municipal trial court to file his counter-affidavit, the appellant refused to do so.

After due proceedings, the trial court rendered judgment in Criminal Case No. TCS-2153, convicting
the appellant of murder, and sentencing him to reclusion perpetua. The decretal portion of the
decision reads:

WHEREFORE, in view of the foregoing, this Court finds accused GUILTY beyond reasonable doubt
of the crime of Murder under Art. 248 R.P.C. and sentences the accused to the penalty of Reclusion
Perpetua and to indemnify the heirs of the deceased the sum of P50,000.00.
However, accused is given full credit of his preventive imprisonment.

SO ORDERED. 8

On appeal, the appellant assails the decision of the trial court contending that:

First Assignment of Error

THE LOWER COURT ERRED IN NOT FINDING THE DEATH OF THE DECEASED AS CAUSED
BY MERE ACCIDENT WITHOUT FAULT OR INTENTION OF CAUSING IT WHILE THE ACCUSED
WAS PERFORMING A LAWFUL ACT WITH DUE CARE OR, IN THE ALTERNATIVE, IT ERRED IN
NOT CONVICTING HIM JUST MERELY OF HOMICIDE INSTEAD OF MURDER.

II

Second Assignment of Error

THE LOWER COURT ERRED IN DISREGARDING THE VERY RELEVANT AND MATERIAL
CONTENTS OF EXHIBIT "B" OF THE PROSECUTION --- CHEMISTRY REPORT, PARAFFIN
TEST -- WHICH ARE FAVORABLE TO THE ACCUSED.

III

Third Assignment of Error

THE LOWER COURT ERRED IN CONCLUDING THAT THE TESTIMONY OF THE SOLE
WITNESS OF THE PROSECUTION IS SATISFACTORY AND SUFFICIENT TO CONVICT THE
ACCUSED OF MURDER.

IV

Fourth Assignment of Error

THE LOWER COURT ERRED IN FAILING TO CONSIDER THAT THE ACCUSED HAS
EXPLAINED WHY HE FAILED TO SURRENDER THE GUN WHICH HE GOT FROM THE
DECEASED. 9

The appellant asserts that he was merely performing a lawful act of defending himself when he
grabbed the victim’s hand which held the gun. The gun accidentally fired and the bullet hit the
victim’s forehead. The accident was not the appellant’s fault. The appellant asserts that when he
wrestled with the victim for the possession of the gun, he was merely defending himself. He
contends that he had no intention of killing the victim, as he merely wanted to talk to his son. If he
had wanted to kill the victim, he could have easily done so when he met the latter for the first time
that fateful night of November 5, 1993. Moreover, the appellant submits, he did not commit any
felony; hence, under paragraph 4 of Article 12 of the Revised Penal Code, he is not criminally liable
for the death of the victim. In the alternative, the appellant asserts that he should be convicted only
10 

of the crime of homicide under Article 249 of the Revised Penal Code, since the qualifying
circumstance of treachery is wanting. He and the victim had a heated exchange of words before they
grappled for the possession of the gun. Such heated discussion had already forewarned the victim
and placed him on guard; thus, treachery cannot be legally considered.

The contention of the appellant has no merit. Article 11, paragraph 4 of the Revised Penal Code
reads:

ART. 11. Justifying circumstances. –

...

4) Any person who, in order to avoid an evil or injury, does an act which causes damage to another
provided that the following requisites are present:

First. That the evil sought to be avoided actually exists;

Second. That the injury feared be greater than that done to avoid it;

Third. That there be no other practical and less harmful means of preventing it.

The provision was taken from Article 8, paragraph 7 of the Spanish Penal Code, which reads:

ARTICULO 8.

7. El que para evitar un mal ejecuta un hecho que produzca dañ en la propiedad ajena, siempre que
concurran las circumstancias siguientes:

Primera. Realidad del mal que se trata de evitar.

Segunda. Quesea mayor que el causado para evitarlo.

Tercera. Que no haya otro medio practicable y menos

perjudicial para impedirlo.

Article 11, paragraph 4 of the Revised Penal Code is not an accurate translation of the Spanish
Penal Code. The phrase "an injury" does not appear in the first paragraph in the Spanish Penal
Code. Neither does the word "injury" appear in the second subparagraph of the Spanish Penal
Code.

The justification is what is referred to in the Spanish Penal Code as el estado de necessidad:

Es una situacion de peligro, actual o immediato para bienes, juridicamente protegides que solo
puede ser evitada mediante, la lesion de bienes, tambien juridicamento protegidos, pertenecientes a
otra personas. 11

The phrase "state of necessity" is of German origin. Countries which have embraced the classical
theory of criminal law, like Italy, do not use the phrase. The justification refers to a situation of grave
peril (un mal), actual or imminent (actual o imminente). The word propiedad covers diverse juridical
rights (bienes juridicos) such as right to life, honor, the integrity of one’s body, and property (la vida,
la integridad corporal, el pudor, el honor, bienes patrimoniales) belonging to another. 12
It is indispensable that the state of necessity must not be brought about by the intentional
provocation of the party invoking the same. 13

A number of legal scholars in Europe are of the view that the act of the accused in a state of
necessity is justifying circumstance; hence, lawful. Under Article 12, paragraph 4 of the Revised
Penal Code, a "state of necessity" is a justifying circumstance. The accused does not commit a
crime in legal contemplation; hence, is not criminally and civilly liable. Civil liability is borne by the
person/persons benefited by the act of the accused. Crimes cannot exist unless the will concurs with
the act, and when, says Blackstone, "a man intending to do a lawful act, does that which is unlawful,
the deed and the will act separately" and there is no conjunction between them which is necessary
to constitute a crime. Others are of the view that such act is a cause for exclusion from being meted
14 

a penalty; still others view such act as a case of excluding the accused from culpability.

According to Groizard, rights may be prejudiced by three general classes of acts, namely, (a)
malicious and intentional acts; (b) negligent or reckless acts; (c) acts which are neither malicious,
imprudent nor negligent but nevertheless cause damages.

Nuestra propiedad puede ser perjudicada, puede sufrir detrimentos por tres clases de hechos.  Por 1âwphi1

actos maliciosos, intencionales, encaminados directamente a causarnos daño; por actos que, sin
llevar ese malicioso fin y por falta de prudencia, por culpa o temeridad del que los ejecuta, den ese
mismo resultado, y por actos que, sin concurrir en su ejecucion un proposito doloso, ni culpa, ni
negligencia sin embargo produzcan menocabo en nuestros bienes. 15

The defense of a state of necessity is a justifying circumstance under Article 12, paragraph 4 of the
Revised Penal Code. It is an affirmative defense that must be proved by the accused with clear and
convincing evidence. By admitting causing the injuries and killing the victim, the accused must rely
on the strength of his own evidence and not on the weakness of the evidence of the prosecution
because if such evidence is weak but the accused fails to prove his defense, the evidence of the
prosecution can no longer be disbelieved. Whether the accused acted under a state of necessity is a
question of fact, which is addressed to the sound discretion of the trial court. The legal aphorism is
that the findings of facts by the trial court, its calibration of the testimony of the witnesses of the
parties and of the probative weight thereof as well as its conclusions based on its own findings are
accorded by the appellate court high respect, if not conclusive effect, unless the trial court ignored,
misconstrued or misapplied cogent facts and circumstances of substance which, if considered, will
change the outcome of the case. We have meticulously reviewed the records and find no basis to
deviate from the findings of the trial court that the appellant was the provocateur, the unlawful
aggressor and the author of a deliberate and malicious act of shooting the victim at close range on
the forehead.

First: When Norberta heard her husband and the appellant arguing with each other in the porch of
their house, she went down from the balcony towards her husband and placed her hand on the
latter’s shoulders. She was shocked when the appellant pulled out his handgun and deliberately shot
the victim on the forehead, thus:

Q Now, you said that when your husband was about to go out again in order to see his trisicad and
as he opened the door he saw Jesus Retubado near the door. What happened after that?

A He asked Jesus Retubado why Jesus Retubado chased him when he was driving his trisicad.

Q Now, as your husband was asking this question to the accused Jesus Retubado what was the
distance to your husband at the time?
A Just very near to him.

Q And you to the accused at that very moment what was more or less your distance?

A About an armslength.

Q When your husband asked Jesus Retubado why the latter chased him while your husband was
driving his trisicad what was the answer of Jesus Retubado, if any?

A My husband asked the accused Jesus Retubado what is his grudge to him and Jesus Retubado
answered that it is not you who has a grudge to me but it is your son.

Q When Jesus Retubado uttered that statement what transpired after that?

A He immediately pointed his firearm that he was bringing (sic) to my husband Emmanuel Cañon.

Q By the way considering that you were just near to both your husband and the accused where did
that firearm that you said was pointed by the accused to your husband come (sic) from?

A While the accused was standing in front of our door his hands were placed inside his T-shirt
covered by his T-shirt.

Atty. Pepito:

We move to strike out the answer. It is not responsive, Your Honor. The question was, where did it
come from?

COURT:

Let the answer stay in the record but let the witness answer again.

A From the hands of accused Jessie.

Fiscal Pansoy:

Q Now, just a while ago you were making a motion using your hand placed inside your T-shirt. Now,
when you saw the firearm for the first time where did you saw (sic) the firearm for the first time where
did the firearm come from as you saw it from the hands of the accused?

Atty. Pepito:

Already answered. It came from the hands of the accused.

Fiscal Pansoy:

I will reform.

Q Before you saw the firearm in the hands of the accused where did the firearm come from?

Atty. Pepito:
She is incompetent. We object.

COURT:

Reform the question.

Fiscal Pansoy:

Q Now, Mrs. Witness, before this question was asked to you as to where the firearm came from you
were making a motion by placing your hands inside your shirt when you were only asked as to
where the firearm came from?

A That was what the position of the accused when he was standing in front of our door and I do not
know what was inside his T-shirt. I only know that he was carrying a firearm when it fired.

Q Now, when the accused pointed the firearm to your husband and fired the same more or less what
was the distance between the accused and your husband at the very precise time when the firing
was made?

A It was just very near because his hand did not bend. (Witness demonstrating by pointing to her
forehead).

Q Now, more or less, describe to the Court the approximate distance between the firearm that was
pointed to your husband and the forehead of your husband at the time when the firing was done?

A It touched the forehead of my husband.

Q That was the very time that you heard the gunburst?

A Yes.

Q When the accused fired the firearm that was carried by him, what happened to your husband?

A My husband fell down backward to the ground inside the house.

Q By the way, what was the flooring of your house where your husband fell backward to the ground?

A Cemented.

Q By the way considering that you were just very near to where the incident occurred can you
describe the length of the firearm that was used by the accused in firing your husband?

A It was a short firearm about 6 inches.

Q Now, as your husband fell down to the floor where did the accused proceed and what did the
accused do?

A He was just casually walking away as if nothing had happened.

Q Now, what did you do to your husband, if any, after he fell down to the floor?
A I have done nothing because I was somewhat shocked. I could not move because I was shocked. 16

Second: After shooting the victim, the appellant fled from the situs criminis. He surrendered to the
police authorities only on November 6, 1993, but failed to surrender the gun he used to kill the
victim. The appellant’s claim that he placed the gun on the dining table before entering his bedroom
to change his clothes is incredible. There is no evidence that the appellant informed the police
authorities that he killed the victim in a state of necessity and that his brother, Edwin, threw the gun
into the sea. The appellant never presented the police officer to whom he confessed that he killed
the victim in a state of necessity.

Third: The appellant had the motive to shoot and kill the victim.  The victim ignored the appellant as
1avvphi1

the latter talked to him at the junction of Rizal and Gallardo streets, in the poblacion of Tuburan. The
appellant was incensed at the effrontery of the victim, a mere pedicab driver. The appellant followed
the victim to his house where the appellant again confronted him. The appellant insisted on talking
with the victim’s son but the victim refused to wake up the latter. The appellant, exasperated at the
victim’s intransigence, pulled out a gun from under his shirt and shot the victim on the forehead. It
was impossible for the victim to survive. With the appellant’s admission that he shot the victim, the
matter on whether he used his right or left hand to shoot the latter is inconsequential.

We agree with the contention of the Solicitor General that there is no treachery in the present case
to qualify the crime to murder. To appreciate treachery, two (2) conditions must be present, namely,
(a) the employment of the means of execution that give the person attacked no opportunity to defend
himself or to retaliate, and (b) the means of execution were deliberately or consciously adopted. The
17 

prosecution failed to adduce an iota of evidence to support the confluence of the abovementioned
conditions. Thus, the appellant is guilty only of homicide under Article 249 of the Revised Penal
Code. Although the Information alleges that the appellant used an unlicensed firearm to shoot the
victim, the prosecution failed to prove that the appellant had no license to possess the same. Hence,
the aggravating circumstance of the use of an unlicensed firearm to commit homicide should not be
appreciated against the appellant.

The appellant is entitled to the mitigating circumstance of voluntary surrender. He turned himself in
to the police authorities prior to the issuance of any warrant for his arrest.

The trial court awarded ₱50,000.00 as civil indemnity to the heirs of the deceased. In addition, the
18 

heirs are entitled to moral damages in the amount of ₱50,000.00 and the temperate damages in the
19 

amount of ₱25,000.00 since no sufficient proof of actual damages was offered. 20

WHEREFORE, the appealed judgment is AFFIRMED with MODIFICATION. The appellant Jesus G.
Retubado alias "Jessie" is found GUILTY beyond reasonable doubt of homicide defined in and
penalized by Article 249 of the Revised Penal Code and is hereby sentenced to suffer an
indeterminate sentence of ten (10) years of prision mayor, in its medium period, as minimum, to
fifteen (15) years of reclusion temporal, in its medium period, as maximum, and to pay the heirs of
the victim, Emmanuel Cañon, ₱50,000.00 as civil indemnity; ₱50,000.00 as moral damages; and
P25,000.00 as temperate damages.

SO ORDERED.

Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.

rt, Toledo City, Branch 29, in Criminal Case No. TCS-2153 convicting the appellant Jesus G.
Retubado of murder, sentencing him to reclusion perpetua, and directing him to indemnify the heirs
of the victim Emmanuel Cañon the sum of P50,000.00.
The appellant was indicted for murder in an Information, the accusatory portion of which reads:

That on the 5th day of November, 1993 at 9:30 o’clock in the evening, more or less, at Barangay I
Poblacion, Municipality of Tuburan, Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with deliberate intent to kill, by means of treachery,
evident premeditation and taking advantage of superior strength, did then and there willfully,
unlawfully and feloniously attack, assault and shoot Emmanuel Cañon with the use of unlicensed
revolver of unknown caliber, thereby hitting the latter on his forehead, resulting to the instantaneous
death of the said victim.

CONTRARY TO LAW.2

Shortly before November 5, 1993, someone played a joke on Edwin Retubado, the appellant’s
younger brother who was mentally ill. Someone inserted a lighted firecracker in a cigarette pack and
gave it to Edwin. He brought the cigarette home and placed it on the dining table as he was having
dinner with his father. Momentarily, the firecracker exploded. The suspect was Emmanuel Cañon,
Jr., The Cañons and the appellant were neighbors. The matter was brought to the attention of the
barangay captain who conducted an investigation. It turned out that Emmanuel Cañon, Jr. was not
the culprit. The barangay captain considered the matter closed. The appellant, however, was bent
on confronting Emmanuel Cañon, Jr.

On November 5, 1993, at about 9:00 p.m., 50-year-old Emmanuel Cañon, Sr., a pedicab driver
called it a day and decided to go home after a day’s work. He drove his pedicab and stopped at the
junction of Rizal and Gallardo Streets, at the poblacion of Tuburan. The appellant, who was
conversing with Marcial Luciño saw him. "Noy, why is [it] your son did something to my brother?"
Emmanuel ignored the appellant. The appellant was incensed and ran after Emmanuel. He overtook
Emmanuel, grabbed and pushed the pedicab which nearly fell into a canal. Emmanuel again ignored
the appellant and pedaled on until he reached his house. His wife, Norberta Cañon was in the
balcony of their house, above the porch waiting for him to arrive. Emmanuel, Jr., meanwhile, was
already asleep. Undeterred, the appellant continued following Emmanuel.

Shortly after Emmanuel had entered his house, the appellant arrived and tarried at the porch.
Emmanuel suddenly opened the door and demanded to know why he was being followed. The
appellant told Emmanuel that he just wanted to talk to Emmanuel, Jr., but Emmanuel told the
appellant that his son was already asleep. Norberta went down from the balcony and placed her
hand on her husband’s shoulder to pacify him.

The appellant forthwith pulled out a handgun from under his T-shirt and shot Emmanuel on the
forehead. The latter fell to the floor as the appellant walked away from the scene. Norberta shouted
for help. The neighbors, her daughter, and her son-in-law arrived. They brought Emmanuel to the
Tuburan District Hospital, but the victim died shortly thereafter. Dr. Ivar G. Arellano, the Municipal
Health Officer, performed an autopsy on the cadaver of Emmanuel and prepared a report thereon
with the following findings:

Examination in Detail:

On detailed examination, a gunshot wound was found at the left side of the forehead, measuring 1
cm. in diameter. At the skin surrounding this wound was found powder burns which measured 3
cms. in diameter as the skin had been blackened and burned by powder of the bullet. The underlying
frontal bone was fractured and depressed. The underlying meninges of the brain as well as the
frontal area of the brain was traumatized and injured. Blood and cerebrospinal fluid were leaking
from this wound. The edges of this bullet wound was inverted thus this was the gunshot entry
wound. The wound was found to be circular in shape. The exit wound was found at the left parietal
bone measuring 1.2 cm. in size or diameter for this wound communicated with the entry wound of
the left side of the forehead. The connection from the wound of entry to the exit wound measured 8
cms. The parietal bone was fractured and was depressed and the parietal part of the brain and
meninges was traumatized. Blood and cerebrospinal fluid as well as brain tissues leaked out from
this wound.

Possible cause of death:

1. Gunshot wound at the head (left side) with injury to brain and meninges

2. Hypovolemic shock secondary to loss of blood (Severe loss of blood)

(Sgd.) Ivar G. Arellano

MUN. Health Officer3

Dr. Charity Patalinghug and the victim’s daughter Loreta C. Claro signed Emmanuel’s Certificate of
Death.4 The appellant surrendered to the police authorities but failed to surrender the firearm he
used to kill the victim. Forensic Officer Myrna P. Areola of the PNP Regional Office subjected the
appellant to paraffin tests. The Chemical Analysis of the paraffin casts gave the following results:

FINDINGS:

...

1. POSITIVE for the presence of gunpowder residue on his left hand cast.

2. NEGATIVE for the presence of gunpowder residue on his right hand cast.5

Norberta also testified on the expenses incurred by her family due to her husband’s death. No
documentary evidence was, however, offered to support the same. She declared that she felt sad
and lonely as a result of her husband's death.

The Case for the Appellant

The appellant admitted shooting the victim but claimed that he was merely performing a lawful act
with due care; hence, cannot be held criminally liable for the victim’s death. He testified that when he
insisted that Emmanuel wake up his son, Emmanuel went to his room and emerged therefrom
holding a handgun with his right hand. Emmanuel’s trigger finger was outside the trigger guard, and
he held the firearm with the muzzle facing downward. Fearing that he would be shot, the appellant
took hold of Emmanuel’s right hand with his left, and pulled the gun towards Emmanuel’s stomach.
The appellant grabbed Emmanuel’s free hand with his right hand, and the old man almost fell on his
knees to the ground. Emmanuel still resisted. The appellant pulled the gun to the level of
Emmanuel’s forehead, and the gun suddenly went off. The bullet hit Emmanuel’s forehead. Norberta
fled from the house. For his part, the appellant rushed to his house to change clothes. He placed the
gun on the dining table before entering his bedroom. When he went back to the dining room to get
the gun, his younger sister, Enrica told him that their brother Edwin had taken the gun. He found
Edwin outside their house near the church, and the latter told the appellant that he threw the gun into
the sea. When the appellant asked his brother to show him where he threw the gun, Edwin refused
to do so.
Marcial Luciño corroborated the appellant’s testimony. He testified that he was talking with the
appellant at around 9:00 p.m. at the junction of Rizal and Gallardo streets when the victim
Emmanuel passed by in his pedicab. When the appellant called the victim, the latter ignored the call,
prompting the appellant to chase the victim, and eventually push the pedicab into a canal.

The appellant’s father, Iñigo Retubado, testified that on the evening of November 5, 1993, he was in
their house with Edwin, his son who was mentally-ill. It was already late when the appellant arrived.
The appellant was disheveled, and laid down the gun he was carrying on the table. The appellant
told his father that he would surrender to the police because he had shot somebody. 6 The appellant
thereafter went to his room to change clothes while Iñigo went to the comfort room to answer the call
of nature. When he was done, he saw the appellant frantically looking for the gun. As Edwin was
also nowhere to be found, Iñigo concluded that Edwin might have taken the gun with him. He also
testified on Edwin’s mental imbalance and on the latter’s confinement at the Psychiatric Department
of the Don Vicente Sotto Memorial Medical Center in Cebu City sometime in 1991.7

On November 6, 1993, the appellant surrendered to the police authorities. Although he was required
by the municipal trial court to file his counter-affidavit, the appellant refused to do so.

After due proceedings, the trial court rendered judgment in Criminal Case No. TCS-2153, convicting
the appellant of murder, and sentencing him to reclusion perpetua. The decretal portion of the
decision reads:

WHEREFORE, in view of the foregoing, this Court finds accused GUILTY beyond reasonable doubt
of the crime of Murder under Art. 248 R.P.C. and sentences the accused to the penalty of Reclusion
Perpetua and to indemnify the heirs of the deceased the sum of P50,000.00.

However, accused is given full credit of his preventive imprisonment.

SO ORDERED.8

On appeal, the appellant assails the decision of the trial court contending that:

First Assignment of Error

THE LOWER COURT ERRED IN NOT FINDING THE DEATH OF THE DECEASED AS CAUSED
BY MERE ACCIDENT WITHOUT FAULT OR INTENTION OF CAUSING IT WHILE THE ACCUSED
WAS PERFORMING A LAWFUL ACT WITH DUE CARE OR, IN THE ALTERNATIVE, IT ERRED IN
NOT CONVICTING HIM JUST MERELY OF HOMICIDE INSTEAD OF MURDER.

II

Second Assignment of Error

THE LOWER COURT ERRED IN DISREGARDING THE VERY RELEVANT AND MATERIAL
CONTENTS OF EXHIBIT "B" OF THE PROSECUTION --- CHEMISTRY REPORT, PARAFFIN
TEST -- WHICH ARE FAVORABLE TO THE ACCUSED.

III
Third Assignment of Error

THE LOWER COURT ERRED IN CONCLUDING THAT THE TESTIMONY OF THE SOLE
WITNESS OF THE PROSECUTION IS SATISFACTORY AND SUFFICIENT TO CONVICT THE
ACCUSED OF MURDER.

IV

Fourth Assignment of Error

THE LOWER COURT ERRED IN FAILING TO CONSIDER THAT THE ACCUSED HAS
EXPLAINED WHY HE FAILED TO SURRENDER THE GUN WHICH HE GOT FROM THE
DECEASED.9

The appellant asserts that he was merely performing a lawful act of defending himself when he
grabbed the victim’s hand which held the gun. The gun accidentally fired and the bullet hit the
victim’s forehead. The accident was not the appellant’s fault. The appellant asserts that when he
wrestled with the victim for the possession of the gun, he was merely defending himself. He
contends that he had no intention of killing the victim, as he merely wanted to talk to his son. If he
had wanted to kill the victim, he could have easily done so when he met the latter for the first time
that fateful night of November 5, 1993. Moreover, the appellant submits, he did not commit any
felony; hence, under paragraph 4 of Article 12 of the Revised Penal Code, he is not criminally liable
for the death of the victim.10 In the alternative, the appellant asserts that he should be convicted only
of the crime of homicide under Article 249 of the Revised Penal Code, since the qualifying
circumstance of treachery is wanting. He and the victim had a heated exchange of words before they
grappled for the possession of the gun. Such heated discussion had already forewarned the victim
and placed him on guard; thus, treachery cannot be legally considered.

The contention of the appellant has no merit. Article 11, paragraph 4 of the Revised Penal Code
reads:

ART. 11. Justifying circumstances. –

...

4) Any person who, in order to avoid an evil or injury, does an act which causes damage to another
provided that the following requisites are present:

First. That the evil sought to be avoided actually exists;

Second. That the injury feared be greater than that done to avoid it;

Third. That there be no other practical and less harmful means of preventing it.

The provision was taken from Article 8, paragraph 7 of the Spanish Penal Code, which reads:

ARTICULO 8.

7. El que para evitar un mal ejecuta un hecho que produzca dañ en la propiedad ajena, siempre que
concurran las circumstancias siguientes:
 Primera. Realidad del mal que se trata de evitar.

Segunda. Quesea mayor que el causado para evitarlo.

Tercera. Que no haya otro medio practicable y menos

perjudicial para impedirlo.

Article 11, paragraph 4 of the Revised Penal Code is not an accurate translation of the Spanish
Penal Code. The phrase "an injury" does not appear in the first paragraph in the Spanish Penal
Code. Neither does the word "injury" appear in the second subparagraph of the Spanish Penal
Code.

The justification is what is referred to in the Spanish Penal Code as el estado de necessidad:

Es una situacion de peligro, actual o immediato para bienes, juridicamente protegides que solo
puede ser evitada mediante, la lesion de bienes, tambien juridicamento protegidos, pertenecientes a
otra personas.11

The phrase "state of necessity" is of German origin. Countries which have embraced the classical
theory of criminal law, like Italy, do not use the phrase. The justification refers to a situation of grave
peril (un mal), actual or imminent (actual o imminente). The word propiedad covers diverse juridical
rights (bienes juridicos) such as right to life, honor, the integrity of one’s body, and property (la vida,
la integridad corporal, el pudor, el honor, bienes patrimoniales) belonging to another.12

It is indispensable that the state of necessity must not be brought about by the intentional
provocation of the party invoking the same.13

A number of legal scholars in Europe are of the view that the act of the accused in a state of
necessity is justifying circumstance; hence, lawful. Under Article 12, paragraph 4 of the Revised
Penal Code, a "state of necessity" is a justifying circumstance. The accused does not commit a
crime in legal contemplation; hence, is not criminally and civilly liable. Civil liability is borne by the
person/persons benefited by the act of the accused. Crimes cannot exist unless the will concurs with
the act, and when, says Blackstone, "a man intending to do a lawful act, does that which is unlawful,
the deed and the will act separately" and there is no conjunction between them which is necessary
to constitute a crime.14 Others are of the view that such act is a cause for exclusion from being meted
a penalty; still others view such act as a case of excluding the accused from culpability.

According to Groizard, rights may be prejudiced by three general classes of acts, namely, (a)
malicious and intentional acts; (b) negligent or reckless acts; (c) acts which are neither malicious,
imprudent nor negligent but nevertheless cause damages.

Nuestra propiedad puede ser perjudicada, puede sufrir detrimentos por tres clases de
hechos.1âwphi1 Por actos maliciosos, intencionales, encaminados directamente a causarnos daño;
por actos que, sin llevar ese malicioso fin y por falta de prudencia, por culpa o temeridad del que los
ejecuta, den ese mismo resultado, y por actos que, sin concurrir en su ejecucion un proposito
doloso, ni culpa, ni negligencia sin embargo produzcan menocabo en nuestros bienes.15

The defense of a state of necessity is a justifying circumstance under Article 12, paragraph 4 of the
Revised Penal Code. It is an affirmative defense that must be proved by the accused with clear and
convincing evidence. By admitting causing the injuries and killing the victim, the accused must rely
on the strength of his own evidence and not on the weakness of the evidence of the prosecution
because if such evidence is weak but the accused fails to prove his defense, the evidence of the
prosecution can no longer be disbelieved. Whether the accused acted under a state of necessity is a
question of fact, which is addressed to the sound discretion of the trial court. The legal aphorism is
that the findings of facts by the trial court, its calibration of the testimony of the witnesses of the
parties and of the probative weight thereof as well as its conclusions based on its own findings are
accorded by the appellate court high respect, if not conclusive effect, unless the trial court ignored,
misconstrued or misapplied cogent facts and circumstances of substance which, if considered, will
change the outcome of the case. We have meticulously reviewed the records and find no basis to
deviate from the findings of the trial court that the appellant was the provocateur, the unlawful
aggressor and the author of a deliberate and malicious act of shooting the victim at close range on
the forehead.

First: When Norberta heard her husband and the appellant arguing with each other in the porch of
their house, she went down from the balcony towards her husband and placed her hand on the
latter’s shoulders. She was shocked when the appellant pulled out his handgun and deliberately shot
the victim on the forehead, thus:

Q Now, you said that when your husband was about to go out again in order to see his trisicad and
as he opened the door he saw Jesus Retubado near the door. What happened after that?

A He asked Jesus Retubado why Jesus Retubado chased him when he was driving his trisicad.

Q Now, as your husband was asking this question to the accused Jesus Retubado what was the
distance to your husband at the time?

A Just very near to him.

Q And you to the accused at that very moment what was more or less your distance?

A About an armslength.

Q When your husband asked Jesus Retubado why the latter chased him while your husband was
driving his trisicad what was the answer of Jesus Retubado, if any?

A My husband asked the accused Jesus Retubado what is his grudge to him and Jesus Retubado
answered that it is not you who has a grudge to me but it is your son.

Q When Jesus Retubado uttered that statement what transpired after that?

A He immediately pointed his firearm that he was bringing (sic) to my husband Emmanuel Cañon.

Q By the way considering that you were just near to both your husband and the accused where did
that firearm that you said was pointed by the accused to your husband come (sic) from?

A While the accused was standing in front of our door his hands were placed inside his T-shirt
covered by his T-shirt.

Atty. Pepito:

We move to strike out the answer. It is not responsive, Your Honor. The question was, where did it
come from?
COURT:

Let the answer stay in the record but let the witness answer again.

A From the hands of accused Jessie.

Fiscal Pansoy:

Q Now, just a while ago you were making a motion using your hand placed inside your T-shirt. Now,
when you saw the firearm for the first time where did you saw (sic) the firearm for the first time where
did the firearm come from as you saw it from the hands of the accused?

Atty. Pepito:

Already answered. It came from the hands of the accused.

Fiscal Pansoy:

I will reform.

Q Before you saw the firearm in the hands of the accused where did the firearm come from?

Atty. Pepito:

She is incompetent. We object.

COURT:

Reform the question.

Fiscal Pansoy:

Q Now, Mrs. Witness, before this question was asked to you as to where the firearm came from you
were making a motion by placing your hands inside your shirt when you were only asked as to
where the firearm came from?

A That was what the position of the accused when he was standing in front of our door and I do not
know what was inside his T-shirt. I only know that he was carrying a firearm when it fired.

Q Now, when the accused pointed the firearm to your husband and fired the same more or less what
was the distance between the accused and your husband at the very precise time when the firing
was made?

A It was just very near because his hand did not bend. (Witness demonstrating by pointing to her
forehead).

Q Now, more or less, describe to the Court the approximate distance between the firearm that was
pointed to your husband and the forehead of your husband at the time when the firing was done?

A It touched the forehead of my husband.

Q That was the very time that you heard the gunburst?

A Yes.

Q When the accused fired the firearm that was carried by him, what happened to your husband?

A My husband fell down backward to the ground inside the house.

Q By the way, what was the flooring of your house where your husband fell backward to the ground?

A Cemented.

Q By the way considering that you were just very near to where the incident occurred can you
describe the length of the firearm that was used by the accused in firing your husband?

A It was a short firearm about 6 inches.

Q Now, as your husband fell down to the floor where did the accused proceed and what did the
accused do?

A He was just casually walking away as if nothing had happened.

Q Now, what did you do to your husband, if any, after he fell down to the floor?

A I have done nothing because I was somewhat shocked. I could not move because I was
shocked.16

Second: After shooting the victim, the appellant fled from the situs criminis. He surrendered to the
police authorities only on November 6, 1993, but failed to surrender the gun he used to kill the
victim. The appellant’s claim that he placed the gun on the dining table before entering his bedroom
to change his clothes is incredible. There is no evidence that the appellant informed the police
authorities that he killed the victim in a state of necessity and that his brother, Edwin, threw the gun
into the sea. The appellant never presented the police officer to whom he confessed that he killed
the victim in a state of necessity.

Third: The appellant had the motive to shoot and kill the victim.1avvphi1 The victim ignored the
appellant as the latter talked to him at the junction of Rizal and Gallardo streets, in the poblacion of
Tuburan. The appellant was incensed at the effrontery of the victim, a mere pedicab driver. The
appellant followed the victim to his house where the appellant again confronted him. The appellant
insisted on talking with the victim’s son but the victim refused to wake up the latter. The appellant,
exasperated at the victim’s intransigence, pulled out a gun from under his shirt and shot the victim
on the forehead. It was impossible for the victim to survive. With the appellant’s admission that he
shot the victim, the matter on whether he used his right or left hand to shoot the latter is
inconsequential.

We agree with the contention of the Solicitor General that there is no treachery in the present case
to qualify the crime to murder. To appreciate treachery, two (2) conditions must be present, namely,
(a) the employment of the means of execution that give the person attacked no opportunity to defend
himself or to retaliate, and (b) the means of execution were deliberately or consciously
adopted.17 The prosecution failed to adduce an iota of evidence to support the confluence of the
abovementioned conditions. Thus, the appellant is guilty only of homicide under Article 249 of the
Revised Penal Code. Although the Information alleges that the appellant used an unlicensed firearm
to shoot the victim, the prosecution failed to prove that the appellant had no license to possess the
same. Hence, the aggravating circumstance of the use of an unlicensed firearm to commit homicide
should not be appreciated against the appellant.

The appellant is entitled to the mitigating circumstance of voluntary surrender. He turned himself in
to the police authorities prior to the issuance of any warrant for his arrest.

The trial court awarded ₱50,000.00 as civil indemnity 18 to the heirs of the deceased. In addition, the
heirs are entitled to moral damages in the amount of ₱50,000.0019 and the temperate damages in the
amount of ₱25,000.00 since no sufficient proof of actual damages was offered.20

WHEREFORE, the appealed judgment is AFFIRMED with MODIFICATION. The appellant Jesus G.
Retubado alias "Jessie" is found GUILTY beyond reasonable doubt of homicide defined in and
penalized by Article 249 of the Revised Penal Code and is hereby sentenced to suffer an
indeterminate sentence of ten (10) years of prision mayor, in its medium period, as minimum, to
fifteen (15) years of reclusion temporal, in its medium period, as maximum, and to pay the heirs of
the victim, Emmanuel Cañon, ₱50,000.00 as civil indemnity; ₱50,000.00 as moral damages; and
P25,000.00 as temperate damages.

SO ORDERED.

Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.