Second Division: Decision Decision

SECOND DIVISION
[G.R. No. 141066. February 17, 2005.]
LADONGA petitioner, vs . PEOPLE OF THE PHILIPPINES,

EVANGELINE LADONGA, PHILIPPINES
respondent.
DECISION
AUSTRIA-MARTINEZ J :
AUSTRIA-MARTINEZ, p
Petitioner Evangeline Ladonga seeks a review of the Decision, 1 dated May 17, 1999,
of the Court of Appeals in CA-G.R. CR No. 20443, a rming the Decision dated August 24,
1996, of the Regional Trial Court (RTC), Branch 3 of Bohol, in Criminal Case Nos. 7068,
7069 and 7070 convicting her of violation of B.P. Blg. 22 , otherwise known as The
Bouncing Checks Law.
The factual background of the case is as follows:
On March 27, 1991, three Informations for violation of B.P. Blg. 22 were led with
the RTC, docketed as Criminal Case Nos. 7068-7070. The Information in Criminal Case No.
7068 alleges as follows:
That, sometime in May or June 1990, in the City of Tagbilaran, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating, and mutually helping with one another, knowing fully
well that they did not have su cient funds deposited with the United Coconut
Planters Bank (UCPB), Tagbilaran Branch, did then and there willfully, unlawfully,
and feloniously, draw and issue UCPB Check No. 284743 postdated July 7, 1990
in the amount of NINE THOUSAND SEVENTY-FIVE PESOS AND FIFTY-FIVE
CENTAVOS (P9,075.55), payable to Alfredo Oculam, and thereafter, without
informing the latter that they did not have su cient funds deposited with the
bank to cover up the amount of the check, did then and there willfully, unlawfully
and feloniously pass on, indorse, give and deliver the said check to Alfredo
Oculam by way of rediscounting of the aforementioned checks; however, upon
presentation of the check to the drawee bank for encashment, the same was
dishonored for the reason that the account of the accused with the United
Coconut Planters Bank, Tagbilaran Branch, had already been closed, to the
damage and prejudice of the said Alfredo Oculam in the aforestated amount. CETIDH
Acts committed contrary to the provisions of Batas Pambansa Bilang 22. 2
The accusatory portions of the Informations in Criminal Case Nos. 7069 and 7070
are similarly worded, except for the allegations concerning the number, date and amount
of each check, that is:
(a) Criminal Case No. 7069 — UCPB Check No. 284744 dated July 22, 1990 in
the amount of P12,730.00; 3
(b) Criminal Case No. 7070 — UCPB Check No. 106136 dated July 22, 1990 in
the amount of P8,496.55. 4
CD Technologies Asia, Inc. © 2020 cdasiaonline.com

The cases were consolidated and jointly tried. When arraigned on June 26, 1991, the
two accused pleaded not guilty to the crimes charged. 5
The prosecution presented as its lone witness complainant Alfredo Oculam. He
testi ed that: in 1989, spouses Adronico 6 and Evangeline Ladonga became his regular
customers in his pawnshop business in Tagbilaran City, Bohol; 7 sometime in May 1990,
the Ladonga spouses obtained a P9,075.55 loan from him, guaranteed by United Coconut
Planters Bank (UCPB) Check No. 284743, post dated to dated July 7, 1990 issued by
Adronico; 8 sometime in the last week of April 1990 and during the first week of May 1990,
the Ladonga spouses obtained an additional loan of P12,730.00, guaranteed by UCPB
Check No. 284744, post dated to dated July 26, 1990 issued by Adronico; 9 between May
and June 1990, the Ladonga spouses obtained a third loan in the amount of P8,496.55,
guaranteed by UCPB Check No. 106136, post dated to July 22, 1990 issued by Adronico;
10 the three checks bounced upon presentment for the reason "CLOSED ACCOUNT"; 11
when the Ladonga spouses failed to redeem the check, despite repeated demands, he
filed a criminal complaint against them. 1 2
While admitting that the checks issued by Adronico bounced because there was no
su cient deposit or the account was closed, the Ladonga spouses claimed that the
checks were issued only to guarantee the obligation, with an agreement that Oculam
should not encash the checks when they mature; 13 and, that petitioner is not a signatory
of the checks and had no participation in the issuance thereof. 14
On August 24, 1996, the RTC rendered a joint decision nding the Ladonga spouses
guilty beyond reasonable doubt of violating B.P. Blg. 22 , the dispositive portion of which
reads:
Premises considered, this Court hereby renders judgment nding accused
Adronico Ladonga, alias Ronie, and Evangeline Ladonga guilty beyond
reasonable doubt in the aforesaid three (3) criminal cases, for which they stand
charged before this Court, and accordingly, sentences them to imprisonment and
fine, as follows:
1. In Criminal Case No. 7068, for (sic) an imprisonment of one (1) year
for each of them, and a ne in the amount of P9,075.55, equivalent to the amount
of UCPB Check No. 284743;
2. In Criminal Case No. 7069, for (sic) an imprisonment for each of
them to one (1) year and a ne of P12,730.00, equivalent to the amount of UCPB
Check No. 284744; and,
3. In Criminal Case No. 7070, with (sic) an imprisonment of one year

for each of them and a fine of P8,496.55 equivalent to the amount of UCPB Check
No. 106136;
4. That both accused are further ordered to jointly and solidarily pay
and reimburse the complainant, Mr. Alfredo Oculam, the sum of P15,000.00
representing actual expenses incurred in prosecuting the instant cases;
P10,000.00 as attorney's fee; and the amount of P30,302.10 which is the total
value of the three (3) subject checks which bounced; but without subsidiary
imprisonment in case of insolvency. jur2005cd
With Costs against the accused.

SO ORDERED. 15
Adronico applied for probation which was granted. 16 On the other hand, petitioner
brought the case to the Court of Appeals, arguing that the RTC erred in nding her
criminally liable for conspiring with her husband as the principle of conspiracy is
inapplicable to B.P. Blg. 22 which is a special law; moreover, she is not a signatory of the
checks and had no participation in the issuance thereof. 1 7
On May 17, 1999, the Court of Appeals a rmed the conviction of petitioner. 18 It
held that the provisions of the penal code were made applicable to special penal laws in
the decisions of this Court in People vs. Parel, 19 U.S. vs. Ponte, 20 and U.S. vs. Bruhez. 21 It
noted that Article 10 of the Revised Penal Code itself provides that its provisions shall be
supplementary to special laws unless the latter provide the contrary. The Court of Appeals
stressed that since B.P. Blg. 22 does not prohibit the applicability in a suppletory character
of the provisions of the Revised Penal Code (RPC), the principle of conspiracy may be
applied to cases involving violations of B.P. Blg. 22 . Lastly, it ruled that the fact that
petitioner did not make and issue or sign the checks did not exculpate her from criminal
liability as it is not indispensable that a co-conspirator takes a direct part in every act and
knows the part which everyone performed. The Court of Appeals underscored that in
conspiracy the act of one conspirator could be held to be the act of the other. CHcETA
Petitioner sought reconsideration of the decision but the Court of Appeals denied
the same in a Resolution dated November 16, 1999. 22
Hence, the present petition.
Petitioner presents to the Court the following issues for resolution:
1. WHETHER OR NOT THE PETITIONER WHO WAS NOT THE DRAWER
OR ISSUER OF THE THREE CHECKS THAT BOUNCED BUT HER CO-ACCUSED
HUSBAND UNDER THE LATTER'S ACCOUNT COULD BE HELD LIABLE FOR
VIOLATIONS OF BATAS PAMBANSA BILANG 22 AS CONSPIRATOR.
2. ANCILLARY TO THE MAIN ISSUE ARE THE FOLLOWING ISSUES:
A. WHETHER OR NOT CONSPIRACY IS APPLICABLE IN
VIOLATIONS OF BATAS PAMBANSA BILANG 22 BY INVOKING THE
LAST SENTENCE OF ARTICLE 10 OF THE REVISED PENAL CODE
WHICH STATES:
Art. 10. Offenses not subject of the provisions of this Code.
— Offenses which are or in the future may be punished under
special laws are not subject to the provisions of this Code. This
Code shall be supplementary to such laws, unless the latter
should specially provide the contrary.
B. WHETHER OR NOT THE CASES CITED BY THE HONORABLE
COURT OF APPEALS IN AFFIRMING IN TOTO THE CONVICTION OF
PETITIONER AS CONSPIRATOR APPLYING THE SUPPLETORY
CHARACTER OF THE REVISED PENAL CODE TO SPECIAL LAWS LIKE
B.P. BLG. 22 IS APPLICABLE. 23
Petitioner staunchly insists that she cannot be held criminally liable for violation of
B.P. Blg. 22 because she had no participation in the drawing and issuance of the three
checks subject of the three criminal cases, a fact proven by the checks themselves. She
contends that the Court of Appeals gravely erred in applying the principle of conspiracy, as
de ned under the RPC, to violations of B.P. Blg. 22 . She posits that the application of the
principle of conspiracy would enlarge the scope of the statute and include situations not
provided for or intended by the lawmakers, such as penalizing a person, like petitioner, who
had no participation in the drawing or issuance of checks.
The O ce of the Solicitor General disagrees with petitioner and echoes the
declaration of the Court of Appeals that some provisions of the Revised Penal Code,
especially with the addition of the second sentence in Article 10, are applicable to special
laws. It submits that B.P. Blg. 22 does not provide any prohibition regarding the
applicability in a suppletory character of the provisions of the Revised Penal Code to it.
Article 10 of the RPC reads as follows:
ART. 10. Offenses not subject to the provisions of this Code. —
Offenses which are or in the future may be punishable under special laws are not
subject to the provisions of this Code. This Code shall be supplementary to such
laws, unless the latter should specially provide the contrary.
The article is composed of two clauses. The first provides that offenses which in the
future are made punishable under special laws are not subject to the provisions of the
RPC, while the second makes the RPC supplementary to such laws. While it seems that the
two clauses are contradictory, a sensible interpretation will show that they can perfectly be
reconciled. cHATSI
The rst clause should be understood to mean only that the special penal laws are
controlling with regard to offenses therein speci cally punished. Said clause only restates
the elemental rule of statutory construction that special legal provisions prevail over
general ones. 24 Lex specialis derogant generali. In fact, the clause can be considered as a
super uity, and could have been eliminated altogether. The second clause contains the
soul of the article. The main idea and purpose of the article is embodied in the provision
that the "code shall be supplementary" to special laws, unless the latter should speci cally
provide the contrary.
The appellate court's reliance on the cases of People vs. Parel, 25 U.S. vs. Ponte, 26
a n d U.S. vs. Bruhez 27 rests on a rm basis. These cases involved the suppletory
application of principles under the then Penal Code to special laws. People vs. Parel is
concerned with the application of Article 22 2 8 of the Code to violations of Act No. 3030,
the Election Law, with reference to the retroactive effect of penal laws if they favor the
accused. U.S. vs. Ponte involved the application of Article 17 2 9 of the same Penal Code,
with reference to the participation of principals in the commission of the crime of
misappropriation of public funds as defined and penalized by Act No. 1740. U.S. vs. Bruhez
covered Article 45 30 of the same Code, with reference to the con scation of the
instruments used in violation of Act No. 1461, the Opium Law.
B.P. Blg. 22 does not expressly proscribe the suppletory application of the
provisions of the RPC. Thus, in the absence of contrary provision in B.P. Blg. 22, the general
provisions of the RPC which, by their nature, are necessarily applicable, may be applied
suppletorily. Indeed, in the recent case of Yu vs. People, 31 the Court applied suppletorily
the provisions on subsidiary imprisonment under Article 39 3 2 of the RPC to B.P. Blg. 22.
The suppletory application of the principle of conspiracy in this case is analogous to
the application of the provision on principals under Article 17 in U.S. vs. Ponte. For once
conspiracy or action in concert to achieve a criminal design is shown, the act of one is the
act of all the conspirators, and the precise extent or modality of participation of each of
them becomes secondary, since all the conspirators are principals. 3 3
All these notwithstanding, the conviction of the petitioner must be set aside.
Article 8 of the RPC provides that "a conspiracy exists when two or more persons
come to an agreement concerning the commission of a felony and decide to commit it."
To be held guilty as a co-principal by reason of conspiracy, the accused must be shown to
have performed an overt act in pursuance or furtherance of the complicity. 34 The overt act
or acts of the accused may consist of active participation in the actual commission of the
crime itself or may consist of moral assistance to his co-conspirators by moving them to
execute or implement the criminal plan. 35
In the present case, the prosecution failed to prove that petitioner performed any
overt act in furtherance of the alleged, conspiracy. As testi ed to by the lone prosecution
witness, complainant Alfredo Oculam, petitioner was merely present when her husband,
Adronico, signed the check subject of Criminal Case No. 7068. 36 With respect to Criminal
Case Nos. 7069-7070, Oculam also did not describe the details of petitioner's
participation. He did not specify the nature of petitioner's involvement in the commission
of the crime, either by a direct act of participation, a direct inducement of her co-
conspirator, or cooperating in the commission of the offense by another act without which
it would not have been accomplished. Apparently, the only semblance of overt act that may
be attributed to petitioner is that she was present when the rst check was issued.
However, this inference cannot be stretched to mean concurrence with the criminal design.
HEDSCc
Conspiracy must be established, not by conjectures, but by positive and conclusive

evidence. 3 7 Conspiracy transcends mere companionship and mere presence at the scene
of the crime does not in itself amount to conspiracy. 38 Even knowledge, acquiescence in
or agreement to cooperate, is not enough to constitute one as a party to a conspiracy,
absent any active participation in the commission of the crime with a view to the
furtherance of the common design and purpose. 39
As the Court eloquently pronounced in a case of recent vintage, People vs. Mandao:
40
To be sure, conspiracy is not a harmless innuendo to be taken lightly or

accepted at every turn. It is a legal concept that imputes culpability under speci c
circumstances; as such, it must be established as clearly as any element of the
crime. Evidence to prove it must be positive and convincing, considering that it is
a convenient and simplistic device by which the accused may be ensnared and
kept within the penal fold.
Criminal liability cannot be based on a general allegation of conspiracy,

and a judgment of conviction must always be founded on the strength of the
prosecution's evidence. The Court ruled thus in People v. Legaspi , from which we
quote:
At most, the prosecution, realizing the weakness of its evidence against accused-appellant
Franco, merely relied and pegged the latter's criminal liability on its sweeping theory of
conspiracy, which to us, was not attendant in the commission of the crime.
The rule is rmly entrenched that a judgment of conviction must be predicated on the
strength of the evidence for the prosecution and not on the weakness of the evidence for the
defense. The proof against him must survive the test of reason; the strongest suspicion must not
be permitted to sway judgment. The conscience must be satis ed that on the defense could be
laid the responsibility for the offense charged; that not only did he perpetrate the act but that it
amounted to a crime. What is required then is moral certainty.
Verily, it is the role of the prosecution to prove the guilt of the appellant beyond reasonable
doubt in order to overcome the constitutional presumption of innocence.
In sum, conviction must rest on hard evidence showing that the accused is
guilty beyond reasonable doubt of the crime charged. In criminal cases, moral
certainty — not mere possibility — determines the guilt or the innocence of the
accused. Even when the evidence for the defense is weak, the accused must be
acquitted when the prosecution has not proven guilt with the requisite quantum of
proof required in all criminal cases. (Citations omitted) 4 1
All told, the prosecution failed to establish the guilt of the petitioner with moral
certainty. Its evidence falls short of the quantum of proof required for conviction.
Accordingly, the constitutional presumption of the petitioner's innocence must be upheld
and she must be acquitted.
WHEREFORE, the instant petition is GRANTED. The assailed Decision, dated May 17,
1999, of the Court of Appeals in CA-G.R. CR No. 20443 a rming the Decision, dated
August 24, 1996, of the Regional Trial Court (Branch 3), Bohol, in Criminal Case Nos. 7068,
7069 and 7070 convicting the petitioner of violation of B.P. Blg. 22 is hereby REVERSED
and SET ASIDE. Petitioner Evangeline Ladonga is ACQUITTED of the charges against her
under B.P. Blg. 22 for failure of the prosecution to prove her guilt beyond reasonable
doubt. No pronouncement as to costs. DaEATc
SO ORDERED.
Puno, Callejo, Sr., Tinga and Chico-Nazario, JJ., concur.
Footnotes
1. Penned by Justice Buenaventura J. Guerrero (now retired) and concurred in by Justices

Portia Alino-Hormachuelos and Eloy R. Bello (now retired).
2. Original Records, pp. 1-2.

3. Id., p. 3.
4. Id., p. 5.
5. Id., pp. 29-31.
6. Also known as Ronie.
7. TSN of December 3, 1991, Testimony of Alfredo Oculam, pp. 4-7.
8. Id., pp. 16-21.

9. TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 2-3.
10. TSN of January 28, 1992, Testimony of Alfredo Oculam, pp. 1-2.
11. TSN of December 3, 1991, Testimony of Alfredo Oculam, p. 19; TSN of December 4,
1991, Testimony of Alfredo Oculam, pp. 1 and 3; TSN of January 28, 1992, Testimony of
Alfredo Oculam, p. 1; Original Records, p. 128.
12. TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 2 and 4; TSN of January
28, 1992, Testimony of Alfredo Oculam, p. 2; Original Records, p. 125.

13. TSN of August 23, 1993, Testimony of Evangeline Ladonga, pp. 7-8, 11-12 and 15; TSN
of December 20, 1993, Testimony of Adronico Ladonga, p. 18.
14. TSN of August 23, 1993, Testimony of Evangeline Ladonga, p. 10; TSN of December
20, 1993, Testimony of Adronico Ladonga, pp. 24-26.
15. Original Records, p. 124.

16. Id., p. 126.
17. Court of Appeals (CA) Rollo, p. 28.
18. Rollo, p. 133.

19. No. 18260, January 27, 1923, 44 Phil. 437.
20. No. 5952, October 24, 1911, 20 Phil. 379.
21. No. 9268, November 4, 1914, 28 Phil. 305.

22. Rollo, p. 39.
23. Rollo, pp. 69-70.
24. Bayan (Bagong Alyansang Makabayan) vs. Zamora, G.R. No. 138570, October 10,
2000, 342 SCRA 449, 483.
25. Note No. 19, supra.

28. ART. 22. Retroactive effect of penal laws. — Penal laws shall have a retroactive effect
insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this
term is defined in Rule 5 of Article 62 of this Code, although at the time of the
publication of such laws a final sentence has been pronounced and the convict is
serving the same.
29. ART. 17. Principals. — The following are considered principals:
1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it;
3. Those who cooperate in the commission of the offense by another act without
which it would not have been accomplished.
30. ART. 45. Confiscation and forfeiture of the proceeds or instruments of the crime. —
Every penalty imposed for the commission of a felony shall carry with it the forfeiture of
the proceeds of the crime and the instruments or tools with which it was committed.
Such proceeds and instruments or tools shall be confiscated and forfeited in favor of
the Government, unless they be the property of a third person not liable for the offense,
but those articles which are not subject of lawful commerce shall be destroyed.
31. G.R. No. 134172, September 20, 2004.
32. ART. 39. Subsidiary penalty. — If the convict has no property with which to meet the
fine mentioned in paragraph 3 of the next preceding article, he shall be subject to a
subsidiary personal liability at the rate of one day for each eight pesos, subject to the
following rules:
1. If the principal penalty imposed be prision correccional or arresto and fine, he

shall remain under confinement until his fine referred in the preceding paragraph is
satisfied, but his subsidiary imprisonment shall not exceed one-third of the term of the
sentence, and in no case shall it continue for more than one year, and no fraction or part
of a day shall be counted against the prisoner.
2. When the principal penalty imposed be only a fine, the subsidiary

imprisonment shall not exceed six months, if the culprit shall have been prosecuted for a
grave or less grave felony, and shall not exceed fifteen days, if for a light felony.
3. When the principal penalty imposed is higher than prision correccional no

subsidiary imprisonment shall be imposed upon the culprit.
4. If the principal penalty imposed is not to be executed by confinement in a

penal institution, but such penalty is of fixed duration, the convict, during the period of
time established in the preceding rules, shall continue to suffer the same deprivation as
those of which the principal penalty consists.
5. The subsidiary personal liability which the convict may have suffered by
reason of his insolvency shall not relieve him from the fine in case his financial
circumstances should improve.
33. People vs. Felipe, G.R. No. 142505, December 11, 2003, 418 SCRA 146, 176; People vs.
Julianda, Jr., G.R. No. 128886, November 23, 2001, 370 SCRA 448, 469; People vs.
Quinicio, G.R. No. 142430, September 13, 2001, 365 SCRA 252, 266.
34. People vs. Pickrell, G.R. No. 120409, October 23, 2003, 414 SCRA 19, 33; People vs.
Bisda, G.R. No. 140895, July 17, 2003, 406 SCRA 454, 473; People vs. Pagalasan, G.R.
Nos. 131926 & 138991, June 18, 2003, 404 SCRA 275, 291.
35. People vs. Caballero, G.R. Nos. 149028-30, April 2, 2003, 400 SCRA 424, 437; People vs.
Ponce, G.R. No. 126254, September 29, 2000, 341 SCRA 352, 359-360.
36. TSN of December 3, 1991, Testimony of Alfredo Oculam, p. 20.
37. People vs. Tamayo, G.R. No. 138608, September 24, 2002, SCRA 540, 553; People vs.
Melencion, G.R. No. 121902, March 26, 2001, 355 SCRA 113, 123.
38. People vs. Leaño, G.R. No. 138886, October 9, 2001, 366 SCRA 774; People vs. Compo,
G.R. No. 112990, May 28, 2001, 358 SCRA 266, 272.
39. People vs. Natividad, G.R. No. 151072, September 23, 2003, 411 SCRA 587, 595.
40. People vs. Mandao, G.R. No. 135048, December 3, 2002, 393 SCRA 292.
41. Id., pp. 304-305.

EN BANC
[G.R. No. 93028. July 29, 1994.]
PHILIPPINES plaintiff-appellee, vs. MARTIN SIMON y

PEOPLE OF THE PHILIPPINES,
SUNGA ** respondent.
SUNGA,
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; TESTIMONY OF WITNESS; WHEN MADE

POSITIVELY, STRAIGHTFORWARD AND CORROBORATED, DESERVES GREATER WEIGHT;
CASE AT BAR. — After an assiduous review and calibration of the evidence adduced by
both parties, we are morally certain that appellant was caught in flagrante delicto engaging
in the illegal sale of prohibited drugs. The prosecution was able to prove beyond a scintilla
of doubt that appellant, on October 22, 1988, did sell two tea bags of marijuana dried
leaves to Sgt. Lopez. The latter himself creditably testi ed as to how the sale took place
and his testimony was amply corroborated by his teammates. As between the
straightforward, positive and corroborated testimony of Lopez and the bare denials and
negative testimony of appellant, the former undeniably deserves greater weight and is
more entitled to credence.
2. ID.; ID.; ID.; DISCREPANCY ON MINOR MATTER; NEITHER AFFECTS INTEGRITY OF
THE EVIDENCE NOT THAT OF THE WITNESS. — Appellant would want to make a capital of
the alleged inconsistencies and improbabilities in the testimonies of the prosecution
witnesses. Foremost, according to him, is the matter of who really con scated the
marijuana tea bags from him since, in open court, Pejoro asserted that he had nothing to
do with the con scation of the marijuana, but in the aforementioned "Receipt of Property
Seized/Con scated," he signed it as the one who seized the same. Su ce it to say that
whether it was Villaruz or Pejoro who con scated the marijuana will not really matter since
such is not an element of the offense with which appellant is charged. What is
unmistakably clear is that the marijuana was con scated from the possession of
appellant. even, assuming arguendo that the prosecution committed an error on who
actually seized the marijuana from appellant, such an error or discrepancy refers only to a
minor matter and, as such, neither impairs the essential integrity of the prosecution
evidence as a whole nor re ects on the witnesses' honesty. Besides, there was clearly a
mere imprecision of language since Pejoro obviously meant that he did not take part in the
physical taking of the drug from the person of appellant, but he participated in the legal
seizure or confiscation thereof as the investigator of their unit.
3. ID.; CRIMINAL PROCEDURE; ENTRAPMENT; WHEN MAY BE RELIED UPON BY THE
COURT. — The Court is aware that the practice of entrapping drug tra ckers through the
utilization of poseur-buyers is susceptible to mistake, harassment, extortion and abuse.
Nonetheless, such causes for judicial apprehension and doubt do not obtain in the case at
bar. Appellant's entrapment and arrest were not effected in a haphazard way, for a
surveillance was conducted by the team before the buy-bust operation was effected. No ill
motive was or could be attributed to them, aside from the fact that they are presumed to
have regularly performed their o cial duty. Such lack of dubious motive coupled with the
presumption of regularity in the performance of o cial duty, as well as the ndings of the
trial court on the credibility of witnesses, should prevail over the self-serving and
uncorroborated claim of appellant of having been framed, erected as it is upon the mere
shifting sands of an alibi. To top it all, appellant was caught red-handed delivering
prohibited drugs, and while there was a delimited chance for him to controvert the charge,
he does not appear to have plausibly done so.
4. ID.; ID.; WARRANTLESS ARREST AND SEIZURE, WHEN VALID; CASE AT BAR. —
Appellant contends that there was neither a relative of his nor any barangay o cial or
civilian to witness the seizure. He decries the lack of pictures taken before, during and
after his arrest. Moreover, he was not reported to or booked in the custody of any
barangay o cial or police authorities. These are absurd disputations. No law or
jurisprudence requires that an arrest or seizure, to be valid, be witnessed by a relative, a
barangay o cial or any other civilian, or be accompanied by the taking of pictures. On the
contrary, the police enforcers having caught appellant in agrante delicto, they were not
only authorized but were also under the obligation to effect a warrantless arrest and
seizure.
5. ID.; EVIDENCE; WHEN OBTAINED IN VIOLATION OF THE RIGHT OF A PERSON
UNDER CUSTODIAL INVESTIGATION; INADMISSIBLE; CASE AT BAR. — Contrary to
appellant's contention, there was an arrest report prepared by the police in connection with
his apprehension. Said Booking Sheet and Arrest Report states, inter alia, that "suspect
was arrested for selling two tea bags of suspected marijuana dried leaves and the
con scation of another two tea bags of suspected marijuana dried leaves." Below these
remarks was a xed appellant's signature. In the same manner, the receipt for the seized
property, hereinbefore mentioned, was signed by appellant wherein he acknowledged the
con scation of the marked bills from him. However, we nd and hereby declare the
aforementioned exhibits inadmissible in evidence. Appellant's conformance to these
documents are declarations against interest and tacit admissions of the crime charged.
They were obtained in violation of his right as a person under custodial investigation for
the commission of an offense, there being nothing in the records to show that he was
assisted by counsel. Although appellant manifested during the custodial investigation that
he waived his right to counsel, the waiver was not made in writing and in the presence of
counsel, hence whatever incriminatory admission or confession may be extracted from
him, either verbally or in writing, is not allowable in evidence. Besides, the arrest report is
self-serving and hearsay and can easily be concocted to implicate a suspect.
6. ID.; ID.; CREDIBILITY OF WITNESS; RULE; APPLICATION IN CASE AT BAR. — The
doctrine is now too well embedded in our jurisprudence that for evidence to be believed, it
must not only proceed from the mouth of a credible witness but must be credible in itself
such as the common experience and observation of mankind can approve as probable
under the circumstances. The evidence on record is bereft of any support for appellants
allegation of maltreatment. Two doctors, one for the prosecution and the other for the
defense, testi ed on the absence of any tell-tale sign or indication of bodily injury,
abrasions or contusions on the person of appellant. What is evident is that the cause of his
abdominal pain was his peptic ulcer from which he had been suffering even before his
arrest. His own brother even corroborated that fact, saying that appellant has had a history
of bleeding peptic ulcer. Furthermore, if it is true that appellant was maltreated at Camp
Olivas, he had no reason whatsoever for not divulging the same to his brother who went to
see him at the camp after his arrest and during his detention there. Signi cantly, he also
did not even report the matter to the authorities nor le appropriate charges against the
alleged malefactors despite the opportunity to do so and with the legal services of
counsel being available to him. Such omissions funnel down to the conclusion that
appellant's story is a pure fabrication.

7. CRIMINAL LAW; VIOLATION OF DANGEROUS DRUGS ACT; ELEMENT; PRESENT
IN CASE AT BAR. — Notwithstanding the objectionability of the aforesaid exhibits,
appellant cannot thereby be extricated from his predicament from his predicament since
his criminal participation in the illegal sale of marijuana has been su ciently proven. The
commission of the offense of illegal sale of prohibited drugs requires merely the
consummation of the selling transaction which happens the moment the buyer receives
the drug from the seller. In the present case, and in light of the preceding discussion, this
sale has been ascertained beyond any peradventure of doubt. Appellant then asseverates
that it is improbable that he would sell marijuana to a total stranger. We take this
opportunity to once again reiterate the doctrinal rule that drug-pushing, when done on a
small scale as in this case, belongs to that class of crimes that may be committed at any
time and in any place. It is not contrary to human experience for a drug pusher to sell to a
total stranger, for what matters is not an existing familiarity between the buyer and seller
but their agreement and the acts constituting the sale and delivery of the marijuana leaves.
While there may be instances where such sale could be improbable, taking into
consideration the diverse circumstances of person, time and place, as well as the
incredibility of how the accused supposedly acted on that occasion, we can safely say that
those exceptional particulars are not present in this case.
8. CRIMINAL LAW; REPUBLIC ACT NO. 6425, AS AMENDED BY REPUBLIC ACT NO.
7659; PENALTY; CONSTRUED; CASE AT BAR. — Probably through oversight, an error on
the matter of imposable penalties appears to have been committed in the drafting of the
aforesaid law, thereby calling for and necessitating judicial reconciliation and
craftsmanship. As applied to the present case, Section 4 of Republic Act No. 6425, as now
further amended, imposes the penalty of reclusion perpetua to death and a ne ranging
from P500,000.00 to P10,000,000.00 upon any person who shall unlawfully sell,
administer, deliver, give away, distribute, dispatch in transit or transport any prohibited
drug. That penalty, according to the amendment to Section 20 of the law, shall be applied if
what is involved is 750 grams or more of indian hemp or marijuana; otherwise, if the
quantity involved is less, the penalty shall range from prision correccional to reclusion
perpetua depending upon the quantity. In other words, there is here an overlapping error in
the provisions on the penalty of reclusion perpetua by reason of its dual imposition, that is,
as the maximum of the penalty where the marijuana is less than 750 grams, and also as
the minimum of the penalty where the marijuana involved is 750 grams or more. The same
error has been committed with respect to the other prohibited and regulated drugs
provided in said Section 20. To harmonize such con icting provisions in order to give
effect to the whole law, we hereby hold that the penalty to be imposed where the quantity
of the drugs involved is less than the quantities stated in the rst paragraph shall range
from prision correccional to reclusion temporal, and not reclusion perpetua. This is also
concordant with the fundamental rule in criminal law that all doubts should be construed in
a manner favorable to the accused. 3. Where, as in this case, the quantity of the dangerous
drug is only 3.8 grams, hence covered by the imposable range of penalties under the
second paragraph of Section 20, as now modi ed, the law provides that the penalty shall
be taken from said range "depending upon the quantity" of the drugs involved in the case.
The penalty in said second paragraph constitutes a complex one composed of three
distinct penalties, that is, prision correccional, prision mayor, and reclusion temporal. In
such a situation, the Code provides that each one shall form a period, with the lightest of
them being the minimum, the next as the medium, and the most severe as the maximum
period. Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating
circumstances determine which period of such complex penalty shall be imposed on the
accused. The peculiarity of the second paragraph of Section 20, however, is its speci c
mandate, above quoted, that the penalty shall instead depend upon the quantity of the drug
subject of the criminal transaction. Accordingly, by way of exception to Article 77 of the
Code and to subserve the purpose of Section 20 of Republic Act No. 7659, each of the
aforesaid component penalties shall be considered as a principal imposable penalty
depending on the quantity of the drug involved. Thereby, the modifying circumstances will
not altogether be disregarded. Since each component penalty of the total complex penalty
will have to be imposed separately as determined by the quantity of the drug involved, then
the modifying circumstances can be used to x the proper period of that component
penalty, as shall hereafter be explained. It would, therefore, be in line with the provisions of
Section 20 in the context of our aforesaid disposition thereon that, unless there are
compelling reasons for a deviation, the quantities of the drugs enumerated in its second
paragraph be divided into three, with the resulting quotient, and double or treble the same,
to be respectively quotient, and double or treble the same, to be respectively the bases for
allocating the penalty proportionately among the three aforesaid periods according to the
severity thereof. Thus, if the marijuana involved is below 250 grams, the penalty to be
imposed shall be prision correccional; from 250 to 499 grams, prision mayor; and 500 to
749 grams, reclusion temporal. Parenthetically, ne is imposed as a conjuncture penalty
only if the penalty is reclusion perpetua to death. Now, considering the minimal quantity of
the marijuana subject of the case at bar, the penalty of prision correccional is consequently
indicated but, again, another preliminary and cognate issue has first to be resolved.
9. ID.; ID.; ID.; RULE FOR GRADUATING PENALTIES; APPLICATION IN SPECIAL
LAWS, WHEN ALLOWED; RATIONALE; CASE AT BAR. — Prision correccional has a duration
of 6 months and 1 day to 6 years and, as a divisible penalty, it consists of three periods as
provided in the text of and illustrated in the table provided by Article 76 of the Code. The
question is whether or not in determining the penalty to be imposed, which is here to be
taken from the penalty of prision correccional, the presence or absence of mitigating,
aggravating or other circumstances modifying criminal liability should be taken into
account. The Court is not unaware of cases in the past wherein it was held that, in imposing
the penalty for offenses under special laws, the rules on mitigating or aggravating
circumstances under the Revised Penal Code cannot and should not be applied. A review
of such doctrines as applied in said cases, however, reveals that the reason therefor was
because the special laws involved provided their own speci c penalties for the offenses
punished thereunder, and which penalties were not taken from or with reference to those in
the Revised Penal Code. Since the penalties then provided by the special laws concerned
did not provide for the minimum, medium or maximum periods, it would consequently be
impossible to consider the aforestated modifying circumstances whose main function is
to determine the period of the penalty in accordance with the rules in Article 64 of the
Code. This is also the rationale for the holding in previous cases that the provisions of the
Code on the graduation of penalties by degrees could not be given supplementary
application to special laws, since the penalties in the latter were not components of or
contemplated in the scale of penalties provided by Article 71 of the former. The suppletory
effect of the Revised Penal Code to special laws, as provided in Article 10 of the former,
cannot be invoked where there is a legal or physical impossibility of, or a prohibition in the
special law against, such supplementary application. The situation, however, is different
where although the offense is de ned in and ostensibly punished under special law, the
penalty therefor is actually taken from the Revised Penal Code in its technical
nomenclature and, necessarily, with its duration, correlation and legal effects under the
system of penalties native to said Code. When, as in this case, the law involved speaks of
prision correccional, in its technical sense under the Code, it would consequently be both
illogical and absurd to posit otherwise. More on this later. For the nonce, we hold that in
the instant case the imposable penalty under Republic Act No. 6425, as amended by
Republic Act No. 7659, is prision correccional, to be taken from the medium period thereof
pursuant to Article 64 of the Revised Penal Code, there being no attendant mitigating or
aggravating circumstance.
10. ID.; MODIFYING CIRCUMSTANCES; APPLICATION IN SPECIAL LAW,
CONSTRUED; CASE AT BAR. — While not squarely in issue in this case, but because this
aspect is involved in the discussion on the role of modifying circumstances, we have
perforce to lay down the caveat that mitigating circumstances should be considered and
applied only if they affect the periods and the degrees of the penalties within rational
limits. Prefatorily, what ordinarily are involved in the graduation and consequently
determine the degree of the penalty, in accordance with the rules in Article 61 of the Code
as applied to the scale of penalties in Article 71, are the stage of execution of the crime
and the nature of the participation of the accused. However, under paragraph 5 of Article
64, when there are two or more ordinary mitigating circumstances and no aggravating
circumstance, the penalty shall be reduced by one degree. Also, the presence of privileged
mitigating circumstances, as provided in Articles 67 and 68, can reduce the penalty by one
or two degrees, or even more. These provisions of Articles 64(5), 67 and 68 should not
apply in toto in the determination of the proper penalty under the aforestated second
paragraph of Section 20 of Republic Act No. 6425, to avoid anomalous results which could
not have been contemplated by the legislature. Thus, paragraph 5 of Article 61 provides
that when the law prescribes a penalty in some manner not specially provided for in the
four preceding paragraphs thereof, the courts shall proceed by analogy therewith. Hence,
when the penalty prescribed for the crime consists of one or two penalties to be imposed
in their full extent, the penalty next lower in degree shall likewise consist of as many
penalties which follow the former in the scale in Article 71. If this rule were to be applied,
and since the complex penalty in this case consists of three discrete penalties in their full
extent, that is, prision correccional, prision mayor and reclusion temporal, then one degree
lower would be arresto menor, destierro and arresto mayor. There could, however, be no
further reduction by still one or two degrees, which must each likewise consist of three
penalties, since only the penalties of ne and public censure remain in the scale. The Court
rules, therefore, that while modifying circumstances may be appreciated to determine the
periods of the corresponding penalties, or even reduce the penalty by degrees, in no case
should such graduation of penalties reduce the imposable penalty beyond or lower than
prision correccional. It is for this reason that the three component penalties in the second
paragraph of Section 20 shall each be considered as an independent principal penalty, and
that the lowest penalty should in any event be prision correccional in order not to
depreciate the seriousness of drug offenses. Interpretatio enda est ut res magis valeat
quam pereat. Such interpretation is to be adopted so that the law may continue to have
e ciency rather than fail. A perfect judicial solution cannot be forged from an imperfect
law, which impasse should now be the concern of and is accordingly addressed to
Congress.
11. ID.; INDETERMINATE SENTENCE LAW; WHEN APPLICABLE. — The nal query is
whether or not the Indeterminate Sentence Law is applicable to the case now before us.
Apparently it does, since drug offenses are not included in nor has appellant committed
any act which would put him within the exceptions to said law and the penalty to be
imposed does not involve reclusion perpetua or death, provided, of course, that the penalty
as ultimately resolved will exceed one year of imprisonment. The more important aspect,
however, is how the indeterminate sentence shall be ascertained. It is true that Section 1 of
said law, after providing for indeterminate sentence for an offense under the Revised Penal
Code, states that "if the offense is punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which shall not exceed the
maximum xed by said law and the minimum shall not be less than the minimum term
prescribed by the same" We hold that this quoted portion of the section indubitably refers
to an offense under a special law wherein the penalty imposed was not taken from and is
without reference to the Revised Penal Code, as discussed in the preceding illustrations,
such that it may be said that the "offense is punished" under that law. There can be no
sensible debate that the aforequoted rule on indeterminate sentence for offenses under
special laws was necessary because of the nature of the former type of penalties under
said laws which were not included or contemplated in the scale of penalties in Article 71 of
the Code, hence there could be no minimum "within the range of the penalty next lower to
that prescribed by the Code for the offense," as is the rule for felonies therein. In the
illustrative examples of penalties in special laws hereinbefore provided, this rule applied,
and would still apply, only to the rst and last examples. Furthermore, considering the
vintage of Act No. 4103 as earlier noted, this holding is but an application and is justi ed
under the rule of contemporanea expositio. Republic Act No. 6425, as now amended by
Republic Act No. 7659, has unquali edly adopted the penalties under the Revised Penal
Code in their technical terms, hence with their technical signi cation and effects. In fact,
for purposes of determining the maximum of said sentence, we have applied the
provisions of the amended Section 20 of said law to arrive at prision correccional and
Article 64 of the Code to impose the same in the medium period. Such offense, although
provided for in a special law, is now in the effect punished by and under the Revised Penal
Code. Correlatively, to determine the minimum, we must apply the rst part of the
aforesaid Section 1 which directs that "in imposing a prison sentence for an offense
punished by the Revised Penal Code, or its amendments, the court shall sentence the
accused to an indeterminate sentence the maximum term of which shall be that which, in
view of the attending circumstances, could be properly imposed under the rules of said
Code, and the minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense." (Emphasis ours.) A divergent pedantic application
would not only be out of context but also an admission of the hornbook maxim that qui
haeret in litera haeret in cortice. Fortunately, this Court has never gone only skin-deep in its
construction of Act No. 4103 by a mere literal appreciation of its provisions. Thus, with
regard to the phrase in Section 2 thereof excepting from its coverage "persons convicted
of offenses punished with death penalty or life imprisonment," we have held that what is
considered is the penalty actually imposed and not the penalty imposable under the law,
and that reclusion perpetua is likewise embraced therein although what the law states is
"life imprisonment." What irresistibly emerges from the preceding disquisition, therefore, is
that under the concurrence of the principles of literal interpretation, which have been
rationalized by comparative decisions of this Court; of historical interpretation, as
explicated by the antecedents of the law and related to contemporaneous legislation; and
of structural interpretation, considering the interrelation of the penalties in the Code as
supplemented by Act No. 4103 in an integrated scheme of penalties, it follows that the
minimum of the indeterminate sentence in this case shall be the penalty next lower to that
prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity in
Section 1 of Act No. 4103 in such a way as to harmonize laws with laws, which is the best
mode of interpretation.
12. ID.; ID.; CONSTRUED; APPLICATION IN CASE AT BAR. — The Indeterminate
Sentence Law is a legal and social measure of compassion, and should be liberally
interpreted in favor of the accused. The "minimum" sentence is merely a period at which,
and not before, as a matter of grace and not of right, the prisoner may merely be allowed
to serve the balance of his sentence outside of his con nement. It does not constitute the
totality of the penalty since thereafter he still has to continue serving the rest of his
sentence under set conditions. That minimum is only the period when the convict's
eligibility for parole may be considered. In fact, his release on parole may readily be denied
if he is found unworthy thereof, or his reincarceration may be ordered on legal grounds,
even if he has served the minimum sentence. It is thus both amusing and bemusing if, in
the case at bar, appellant should be begrudged the bene t of a minimum sentence within
the range of arresto mayor, the penalty next lower to prision correccional which is the
maximum range we have xed through the application of Articles 61 and 71 of the Revised
Penal Code. For, with fealty to the law, the court may set the minimum sentence at 6
months of arresto mayor, instead of 6 months and 1 day of prision correccional. The
difference, which could thereby even involve only one day, is hardly worth the creation of an
overrated tempest in the judicial teapot.
DAVIDE, JR., J., concurring and dissenting:
1. CRIMINAL LAW; INDETERMINATE SENTENCE LAW; CONSTRUED; CASE AT BAR.
— The rst view is based on the proposition that since R.A. No. 7659 unquali edly adopted
the penalties under the Revised Penal Code in their technical terms, hence also their
technical signi cation and effects, then what should govern is the rst part of Section 1 of
the Indeterminate Sentence Law which directs that: "in imposing a prison sentence for an
offense punished by the Revised Penal Code, or its amendments, the court shall sentence
the accused to an indeterminate sentence the maximum term of which shall be that which,
in view of the attending circumstances, could be properly imposed under the rules of the
said Code, and the minimum which shall be within the range of the penalty next lower to
that prescribed by the Code for the offense." Elsewise stated, by the adoption of the
penalties provided for in the Revised Penal Code for the offenses penalized under the
Dangerous Drugs Act (R.A. No. 6425), as amended, the latter offenses would now be
considered as punished under the Revised Penal code for purposes of the Indeterminate
Sentence Law. Section 1 of the Indeterminate Sentence Law (Act No. 4103, as amended by
Act No. 4225 and R.A. No. 4203) also provides that: "if the offense is punished by any other
law, the court shall sentence the accused to an indeterminate sentence, the maximum term
of which shall not exceed the maximum xed by said law and the minimum shall not be
less than the minimum prescribed by the same." (Emphasis supplied). There are, therefore,
two categories of offenses which should be taken into account in the application of the
Indeterminate Sentence Law: (1) offenses punished by the Revised Penal Code, and (2)
offenses punished by other laws (or special laws). The offenses punished by the Revised
Penal Code are those de ned and penalized in Book II thereof, which is thus appropriately
titled CRIMES AND PENALTIES. To simplify further, a crime is deemed punished under the
Revised Penal Code if it is de ned by it, and none other, as a crime and is punished by a
penalty which is included in the classi cation of Penalties in Chapter II, Title III of Book I
thereof. On the other hand, an offense is considered punished under any other law (or
special law) if it is not de ned and penalized by the Revised Penal Code but by such other
law. It is thus clear that an offense is punished by the Revised Penal Code if both its
de nition and the penalty therefor are found in the said Code, and it is deemed punished by
a special law if its de nition and the penalty therefor are found in the special law. That the
latter imports or borrows from the Revised Penal Code its nomenclature of penalties does
not make an offense in the special law punished by or punishable under the Revised Penal
Code. The reason is quite simple. It is still the special law that de nes the offense and
imposes a penalty therefor, although it adopts the Code's nomenclature of penalties. In
short, the mere use by a special law of a penalty found in the Revised Penal Code can by no
means make an offense thereunder an offense "punished or punishable" by the Revised
Penal Code.
2. ID.; DANGEROUS DRUGS ACT; IMPOSABLE PENALTY; CASE AT BAR. — The
majority opinion holds the view that while the penalty provided for the Section 20 of the
Dangerous Drugs Act is a complex one composed of three distinct penalties, viz., prision
correccional, prision mayor, and reclusion temporal, and that pursuant to Article 77 of the
Revised Penal Code, each should form a period, with the lightest of them being the
minimum, the next as the medium, and the most severe as the maximum, yet, considering
that under the said second paragraph of Section 20 the penalty depends on the quantity of
the drug subject of the criminal transaction, then by way of exception to Article 77 of the
Revised Penal Code and to subserve the purpose of Section 20, as amended, each of the
aforesaid component penalties shall be considered as a principal penalty depending on
the quantity of the drug involved. Thereafter, applying the modifying circumstances
pursuant to Article 64 of the Revised Penal Code, the proper period of the component
penalty shall then be xed. To illustrate, if by the quantity of the drugs involved (e.g.,
marijuana below 250 grams) the proper principal penalty should be prision correccional,
but there is one mitigating and no aggravating circumstance, then the penalty to be
imposed should be prision correccional in its minimum period. Yet, the majority opinion
puts a limit to such a rule. It declares: "The Court rules, therefore, that while modifying
circumstances may be appreciated to determine the periods of the corresponding
penalties, or even reduce the penalty by degrees, in no case should such graduation of
penalties reduce the imposable penalty beyond or lower than prision correccional. It is for
this reason that the three component penalties in the second paragraph of Section 20 shall
each be considered as an independent principal penalty, and that the lowest penalty should
in any event be prision correccional in order not to depreciate the seriousness of drug
offenses." Simply put, this rule would allow the reduction from reclusion temporal — if it is
the penalty to be imposed on the basis of the quantity of the drugs involved — by two
degrees, or to prision correccional, if there are two or more mitigating circumstances and
no aggravating circumstance is present (paragraph 5, Article 64, Revised Penal code) or if
there is a privileged mitigating circumstance of, say, minority (Article 68, Revised Penal
Code), or under circumstances covered by Article 69 of the Revised Penal Code. Yet, if the
proper penalty to be imposed is prision mayor, regardless of the fact that a reduction by
two degrees is proper, it should only be reduced by one degree because the rule does not
allow a reduction beyond prision correccional. Finally, if the proper penalty to be imposed
is prision correccional, no reduction at all would be allowed. I nd the justi cation for the
rule to be arbitrary and unfair. It is arbitrary because within the same second paragraph
involving the same range of penalty, we both allow and disallow the application of Article
64(5), Article 68, and Article 69 of the Revised Penal Code. The reason for the
disallowance, viz., in order not to depreciate the seriousness of drug offenses, is
unconvincing because Section 20 of the Dangerous Drug Act, as amended by R.A. No.
7659, has in fact "depreciated" the seriousness of drug offenses by providing quantity as
basis for the determination of the proper penalty and limiting fine only to cases punishable
b y reclusion perpetua to death. It is unfair because an accused who is found guilty of
possessing MORE dangerous drugs — say 500 to 749 grams of marijuana, in which case
the penalty to be imposed would be reclusion temporal — may only be sentenced to six (6)
months and one (1) day of prision correccional minimum because of privileged mitigating
circumstances. Yet, an accused who is found guilty of possession of only one (1) gram of
marijuana — in which case the penalty to be imposed is prision correccional — would not
be entitled to a reduction thereof even if he has the same number of privileged mitigating
circumstances as the former has. Also, if the privileged mitigating circumstance happens
to be the minority of the accused, then he is entitled to the reduction of the penalty as a
matter of right pursuant to Article 68 of the Revised Penal Code, which reads: "ART. 68.
Penalty to be imposed upon a person under eighteen years of age. — When the offender is
a minor under eighteen years and his case is one coming under the provisions of the
paragraph next to the last of Article 80 of this Code, the following rules shall be observed:
1. Upon a person under fteen but over nine years of age, who is not exempted from
Liability by reason of the court having declared that he acted with discernment, a
discretionary penalty shall be imposed, but always Lower by two degrees at Least than
that prescribed by Law for the crime which he committed. 2. Upon a person over fteen
and under eighteen years of age the penalty next Lower than that prescribed by law shall
be imposed, but always in the proper period." I do not think that as to the second
paragraph of Section 20 of the Dangerous Drugs Act, as amended by Section 17 of R.A.
No. 7659, we can be at liberty to apply the Revised Penal Code in one aspect and not to
apply it in another.
DECISION
REGALADO , J : p
Herein accused-appellant Martin Simon y Sunga was charged on November 10,

1988 with a violation of Section 4, Article II of Republic Act No. 6425, as amended,
otherwise known as the Dangerous Drugs Act of 1972, under an indictment alleging that
on or about October 22, 1988, at Barangay Sto. Cristo, Guagua, Pampanga, he sold four tea
bags of marijuana to a Narcotics Command (NARCOM) poseur-buyer in consideration of
the sum of P40.00, which tea bags, when subjected to laboratory examination, were found
positive for marijuana. 1
Eventually arraigned with the assistance of counsel on March 2, 1989, after his
rearrest following his escape from Camp Olivas, San Fernando, Pampanga where he was
voluntarily detained, 2 he pleaded not guilty. He voluntarily waived his right to a pre-trial
conference, 3 after which trial on the merits ensued and was duly concluded. LibLex
I
The evidence on record shows that a con dential informant, later identi ed as
NARCOM operative, informed the police unit at Camp Olivas, San Fernando, Pampanga, of
the illegal drug activities of a certain "Alyas Pusa" at Sto. Cristo, Guagua, Pampanga. Capt.
Francisco Bustamante, Commanding O cer of the 3rd Narcotics Regional Unit in the
camp, then formed a buy-bust team composed of Sgt. Buenaventura Lopez, Pfc. Virgilio
Villaruz and Sgt. Domingo Pejoro, all members of the same unit. After securing marked
money from Bustamante, the team, together with their informant, proceeded to Sto. Cristo
after they had coordinated with the police authorities and barangay o cers thereof. When
they reached the place, the con dential informer pointed out appellant to Lopez who
consequently approached appellant and asked him if he had marijuana. Appellant
answered in the a rmative and Lopez offered to buy two tea bags. Appellant then left and,
upon returning shortly thereafter, handed to Lopez two marijuana tea bags and Lopez gave
him the marked money amounting to P40.00 as payment. Lopez then scratched his head
as a pre-arranged signal to his companions who were stationed around ten to fteen
meters away, and the team closed in on them. Thereupon, Villaruz, who was the head of the
back-up team, arrested appellant. The latter was then brought by the team to the 3rd
Narcotics Regional Unit at Camp Olivas on board a jeep and he was placed under custodial
investigation, with Sgt. Pejoro as the investigator. 4
Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal that
transpired between Lopez and the appellant. He also averred that he was the one who
confiscated the marijuana and took the marked money from appellant. 5
Sgt. Domingo Pejoro, for his part, declared that although he was part of the buy-bust
team, he was stationed farthest from the rest of the other members, that is, around two
hundred meters away from his companions. He did not actually see the sale that
transpired between Lopez and appellant but he saw his teammates accosting appellant
after the latter's arrest. He was likewise the one who conducted the custodial investigation
of appellant wherein the latter was apprised of his rights to remain silent, to information
and to counsel. Appellant, however, orally waived his right to counsel. 6
Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property
Seized/Con scated" which appellant signed, admitting therein the con scation of four tea
bags of marijuana dried leaves in his possession. Pejoro likewise informed the court below
that, originally, what he placed on the receipt was that only one marijuana leaf was
con scated in exchange for P20.00. However, Lopez and Villaruz corrected his entry by
telling him to put "two", instead of "one" and "40", instead of "20". He agreed to the
correction since they were the ones who were personally and directly involved in the
purchase of the marijuana and the arrest of the appellant. 7
Dr. Pedro S. Calara, a medical o cer at Camp Olivas, examined appellant at 5:30
P.M. of the day after the latter's apprehension, and the results were practically normal
except for his relatively high blood pressure. The doctor also did not nd any trace of
physical injury on the person of the appellant. The next day, he again examined appellant
due to the latter's complaint of gastro-intestinal pain. In the course of the examination, Dr.
Calara discovered that appellant has a history of peptic ulcer, which causes him to
experience abdominal pain and consequently vomit blood. In the afternoon, appellant
came back with the same complaint but, except for the gastro-intestinal pain, his physical
condition remained normal. 8
As expected, appellant tendered an antipodal version of the attendant facts,
claiming that on the day in question, at around 4:30 P.M., he was watching television with
the members of his family in their house when three persons, whom he had never met
before suddenly arrived. Relying on the assurance that they would just inquire about
something from him at their detachment, appellant boarded a jeep with them. He was told
that they were going to Camp Olivas, but he later noticed that they were taking a different
route. While on board, he was told that he was a pusher so he attempted to alight from the
jeep but he was handcuffed instead. When they nally reached the camp, he was ordered
to sign some papers and, when he refused, he was boxed in the stomach eight or nine
times by Sgt. Pejoro. He was then compelled to a x his signature and ngerprints on the
documents presented to him. He denied knowledge of the P20.00 or the dried marijuana
leaves, and insisted that the twenty-peso bill came from the pocket of Pejoro. Moreover,
the reason why he vomited blood was because of the blows he suffered at the hands of
Pejoro. He admitted having escaped from the NARCOM o ce but claimed that he did so
since he could no longer endure the maltreatment to which he was being subjected. After
escaping, he proceeded to the house of his uncle, Bienvenido Sunga, at San Matias,
Guagua, reaching the place at around 6:30 or 7:30 P.M. There, he consulted a quack doctor
and, later, he was accompanied by his sister to the Romana Pangan District Hospital at
Floridablanca, Pampanga where he was confined for three days. 9
Appellant's brother, Norberto Simon, testi ed to the fact that appellant was
hospitalized at Floridablanca, Pampanga after undergoing abdominal pain and vomiting of
blood. He likewise con rmed that appellant had been suffering from peptic ulcer even
before the latter's arrest. 1 0 Also, Dr. Evelyn Gomez-Aguas, a resident physician of Romana
Pangan District Hospital, declared that she treated appellant for three days due to
abdominal pain, but her examination revealed that the caused for this ailment was
appellant's peptic ulcer. She did not see any sign of slight or serious external injury,
abrasion or contusion on his body. 1 1
On December 4, 1989, after weighing the evidence presented, the trial court
rendered judgment convicting appellant for a violation of Section 4, Article II of Republic
Act No. 6425, as amended, and sentencing him to suffer the penalty of life imprisonment,
to pay a ne of twenty thousand pesos and to pay the costs. The four tea bags of
marijuana dried leaves were likewise ordered confiscated in favor of the Government. 1 2
Appellant now prays the Court to reverse the aforementioned judgment of the lower
court, contending in his assignment of errors that the latter erred in (1) not upholding his
defense of "frame-up," (2) not declaring Exhibit "G" (Receipt of Property
Seized/Con scated) inadmissible in evidence, and (3) convicting him of a violation of the
Dangerous Drugs Act. 1 3
At the outset, it should be noted that while the People's real theory and evidence is
to the effect that appellant actually sold only two tea bags of marijuana dried leaves, while
the other two tea bags were merely con scated subsequently from his possession, 1 4 the
latter not being in any way connected with the sale, the information alleges that he sold
and delivered four tea bags of marijuana dried leaves. 1 5 In view thereof, the issue
presented for resolution in this appeal is merely the act of selling the two tea gabs
allegedly committed by appellant, and does not include the disparate and distinct issue of
illegal possession of the other two tea bags which separate offense is not charged herein.
16
To sustain a conviction for selling prohibited drugs, the sale must be clearly and
unmistakably established. 1 7 To sell means to give, whether for money or any other
material consideration. 1 8 It must, therefore, be established beyond doubt that appellant
actually sold and delivered two tea bags of marijuana dried leaves to Sgt. Lopez, who
acted as the poseur-buyer, in exchange for two twenty-peso bills. LLpr
After an assiduous review and calibration of the evidence adduced by both parties,
we are morally certain that appellant was caught in agrante delicto engaging in the illegal
sale of prohibited drugs. The prosecution was able to prove beyond a scintilla of doubt
that appellant, on October 22, 1988, did sell two tea bags of marijuana dried leaves to Sgt.
Lopez. The latter himself creditably testi ed as to how the sale took place and his
testimony was amply corroborated by his teammates. As between the straightforward,
positive and corroborated testimony of Lopez and the bare denials and negative testimony
of appellant, the former undeniably deserves greater weight and is more entitled to
credence.
We are aware that the practice of entrapping drug tra ckers through the utilization
of poseur-buyers is susceptible to mistake, harassment, extortion and abuse. 1 9
Nonetheless, such causes for judicial apprehension and doubt do not obtain in the case at
bar. Appellant's entrapment and arrest were not effected in a haphazard way, for a
surveillance was conducted by the team before the buy-bust operation was effected. 2 0 No
ill motive was or could be attributed to them, aside from the fact that they are presumed to
have regularly performed their o cial duty. 2 1 Such lack of dubious motive coupled with
the presumption of regularity in the performance of o cial duty, as well as the ndings of
the trial court on the credibility of witnesses, should prevail over the self-serving and
uncorroborated claim of appellant of having been framed, 2 2 erected as it is upon the mere
shifting sands of an alibi. To top it all, appellant was caught red-handed delivering
prohibited drugs, and while there was a delimited chance for him to controvert the charge,
he does not appear to have plausibly done so.
When the drug seized was submitted to the Crime Laboratory Service of the then
Philippine Constabulary-Integrated National Police (PC-INP) at Camp Olivas for
examination, P/Cpl. Marlyn Salangad, a forensic chemist therein, 23 con rmed in her
Technical Report No. NB-448-88 that the contents of the four tea bags con scated from
appellant were positive for and had a total weight of 3.8 grams of marijuana. 2 4 Thus, the
corpus delicti of the crime had been fully proved with certainty and conclusiveness. 2 5
Appellant would want to make a capital of the alleged inconsistencies and
improbabilities in the testimonies of the prosecution witnesses. Foremost, according to
him, is the matter of who really con scated the marijuana tea bags from him since, in open
court, Pejoro asserted that he had nothing to do with the con scation of the marijuana, but
in the aforementioned "Receipt of Property Seized/Con scated," he signed it as the one
who seized the same. 2 6
Su ce it to say that whether it was Villaruz or Pejoro who con scated the marijuana
will not really matter since such is not an element of the offense with which appellant is
charged. What is unmistakably clear is that the marijuana was con scated from the
possession of appellant. even, assuming arguendo that the prosecution committed an
error on who actually seized the marijuana from appellant, such an error or discrepancy
refers only to a minor matter and, as such, neither impairs the essential integrity of the
prosecution evidence as a whole nor re ects on the witnesses' honesty. 27 Besides, there
was clearly a mere imprecision of language since Pejoro obviously meant that he did not
take part in the physical taking of the drug from the person of appellant, but he
participated in the legal seizure or confiscation thereof as the investigator of their unit.
Next, appellant adduces the argument that the twenty-peso bills allegedly
con scated from him were not powdered for nger-printing purposes contrary to the
normal procedure in buy-bust operation. 2 8 This omission has been satisfactorily explained
by Pfc. Virgilio Villaruz in his testimony, as follows:
"Q: Is it the standard operating procedure of your unit that in conducting such
operation you do not anymore provide a powder (sic) on the object so as to
determine the thumbmark or identity of the persons taking hold of the
object?
A: We were not able to put powder on these denominations because we are
lacking that kind of material in our o ce since that item can be purchased
only in Manila and only few are producing that, sir. Cdpr
xxx xxx xxx

Q: It is not a fact that your o ce is within (the) P.C. Crime Laboratory, CIS, as well
as the office of NICA?

A: Our o ce is only adjacent to those o ces but we cannot make a request for
that powder because they themselves, are using that in their own work, sir."
29
The foregoing explanation aside, we agree that the failure to mark that money bills
used for entrapment purposes can under no mode of rationalization be fatal to the case of
the prosecution because the Dangerous Drugs Act punishes "any person who, unless
authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in
transit or transport any prohibited drug, or shall act as a broker in any of such
transactions." 3 0 The dusting of said bills with phosphorescent power is only an evidentiary
technique for identi cation purposes, which identi cation can be supplied by other
species of evidence.
Again, appellant contends that there was neither a relative of his nor any barangay
o cial or civilian to witness the seizure. He decries the lack of pictures taken before,
during and after his arrest. Moreover, he was not reported to or booked in the custody of
any barangay o cial or police authorities. 31 These are absurd disputations. No law or
jurisprudence requires that an arrest or seizure, to be valid, be witnessed by a relative, a
barangay o cial or any other civilian, or be accompanied by the taking of pictures. On the
contrary, the police enforcers having caught appellant in agrante delicto, they were not
only authorized but were also under the obligation to effect a warrantless arrest and
seizure.
Likewise, contrary to appellant's contention, there was an arrest report prepared by
the police in connection with his apprehension. Said Booking Sheet and Arrest Report 32
states, inter alia, that "suspect was arrested for selling two tea bags of suspected
marijuana dried leaves and the con scation of another two tea bags of suspected
marijuana dried leaves." Below these remarks was a xed appellant's signature. In the
same manner, the receipt for the seized property, hereinbefore mentioned, was signed by
appellant wherein he acknowledged the confiscation of the marked bills from him. 3 3
However, we nd and hereby declare the aforementioned exhibits inadmissible in
evidence. Appellant's conformance to these documents are declarations against interest
and tacit admissions of the crime charged. They were obtained in violation of his right as a
person under custodial investigation for the commission of an offense, there being nothing
in the records to show that he was assisted by counsel. 3 4 Although appellant manifested
during the custodial investigation that he waived his right to counsel, the waiver was not
made in writing and in the presence of counsel, 3 5 hence whatever incriminatory admission
or confession may be extracted from him, either verbally or in writing, is not allowable in
evidence. 3 6 Besides, the arrest report is self-serving and hearsay and can easily be
concocted to implicate a suspect.
Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot
thereby be extricated from his predicament from his predicament since his criminal
participation in the illegal sale of marijuana has been su ciently proven. The commission
of the offense of illegal sale of prohibited drugs requires merely the consummation of the
selling transaction 3 7 which happens the moment the buyer receives the drug from the
seller. 3 8 In the present case, and in light of the preceding discussion, this sale has been
ascertained beyond any peradventure of doubt. cdphil
Appellant then asseverates that it is improbable that he would sell marijuana to a

total stranger. 3 9 We take this opportunity to once again reiterate the doctrinal rule that
drug-pushing, when done on a small scale as in this case, belongs to that class of crimes
that may be committed at any time and in any place. 4 0 It is not contrary to human
experience for a drug pusher to sell to a total stranger, 4 1 for what matters is not an
existing familiarity between the buyer and seller but their agreement and the acts
constituting the sale and delivery of the marijuana leaves. 4 2 While there may be instances
where such sale could be improbable, taking into consideration the diverse circumstances
of person, time and place, as well as the incredibility of how the accused supposedly acted
on that occasion, we can safely say that those exceptional particulars are not present in
this case.
Finally, appellant contends that he as subjected to physical and mental torture by the
arresting o cers which caused him to escape from Camp Olivas the night he was placed
under custody. 4 3 This he asserts to support his explanation as to how his signatures on
the documents earlier discussed were supposedly obtained by force and coercion.
The doctrine is now too well embedded in our jurisprudence that for evidence to be
believed, it must not only proceed from the mouth of a credible witness but must be
credible in itself such as the common experience and observation of mankind can approve
as probable under the circumstances. 4 4 The evidence on record is bereft of any support
for appellants allegation of maltreatment. Two doctors, one for the prosecution 4 5 and the
other for the defense, 4 6 testi ed on the absence of any tell-tale sign or indication of bodily
injury, abrasions or contusions on the person of appellant. What is evident is that the cause
of his abdominal pain was hi peptic ulcer from which he had been suffering even before his
arrest. 4 7 His own brother even corroborated that fact, saying that appellant has had a
history of bleeding peptic ulcer. 4 8
Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no
reason whatsoever for not divulging the same to his brother who went to see him at the
camp after his arrest and during his detention there. 49 Signi cantly, he also did not even
report the matter to the authorities nor le appropriate charges against the alleged
malefactors despite the opportunity to do so 5 0 and with the legal services of counsel
being available to him. Such omissions funnel down to the conclusion that appellant's
story is a pure fabrication.
These, and the events earlier discussed, soundly refute his allegations that his arrest
was baseless and premeditated for the NARCOM agents were determined to arrest him at
all costs. 51 Premeditated or not, appellant's arrest was only the culmination, the nal act
needed for his isolation from society and it was providential that it came about after he
was caught in the very act of illicit trade of prohibited drugs. Accordingly, this opinion cold
have concluded on a note of a rmance of the judgment of the trial court. However,
Republic Act No. 6425, as amended, was further amended by Republic Act No. 7659
effective December 31, 1993, 5 2 which supervenience necessarily affects the original
disposition of this case and entails additional questions of law which we shall now resolve.
The provisions of the aforesaid amendatory law, pertinent to the adjudication of the
case at bar, are to this effect:
"SECTION 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425,
as amended, known as the Dangerous Drugs Act of 1972, are hereby amended to
read as follows:
xxx xxx xxx

'SECTION 4. Sale, Administration, Delivery, Distribution and
Transportation of Prohibited Drugs . — The penalty of reclusion perpetua to
death and a ne ranging from ve hundred thousand pesos to ten million
pesos shall be imposed upon any person who, unless authorized by law,
shall sell, administer, deliver, give away to another, distribute, dispatch in
transit or transport any prohibited drug, or shall act as a broker in any of
such transactions.'
xxx xxx xxx

"SECTION 17. Section 20, Article IV of Republic Act No. 6425, as amended
as the Dangerous Drugs Act of 1972, is hereby amended to read as follows:
'SECTION 20. Application of Penalties, Con scation and Forfeiture

of the Proceeds or Instrument of the Crime. — The penalties for offenses
under Sections 3, 4, 7, 8 and 9 of Article Ii and Sections 14, 14-A, 15 and 16
of Article III of this Act shall be applied if the dangerous drugs involved is
in any of the following quantities:
xxx xxx xxx
5. 750 grams or more of indian hemp or marijuana.

xxx xxx xxx
'Otherwise, if the quantity involved is less than the foregoing

quantities, the penalty shall range from prision correccional t o reclusion
perpetua depending upon the quantity.'"
1. Considering that herein appellant is being prosecuted for the sale of four tea bags
of marijuana with a total weight of only 3.8 grams and, in fact, stands to be convicted for
the sale of only two of those tea bags, the initial inquiry would be whether the patently
favorable provisions of Republic Act No. 7659 should be given retroactive effect to entitle
him to the lesser penalty provided thereunder, pursuant to Article 22 of the Revised Penal
Code. llcd
Although Republic Act No. 6425 was enacted as a special law, albeit originally
amendatory and in substitution of the previous Articles 190 to 194 of the Revised Penal
Code, 5 3 it has long been settled that by force of Article 10 of said Code the bene cent
provisions of Article 22 thereof applies to and shall be given retrospective effect to crimes
punished by special laws. 5 4 The exception in said article would not apply to those
convicted of drug offenses since habitual delinquency refers to convictions for the third
time or more of the crimes of serious or less serious physical injuries, robo, hurto, estafa
or falsification. 5 5
Since, obviously, the favorable provisions of Republic Act No. 7659 could neither
have then been involved nor invoked in the present case, a corollary question would be
whether this court, at the present stage, can sua sponte apply the provisions of said Article
22 to reduce the penalty to be imposed on appellant. That issue has likewise been
resolved in the cited case of People vs. Moran, et al., ante., thus:
". . . The plain precept contained in article 22 of the Penal Code, declaring
the retroactivity of penal laws in so far as they are favorable to persons accused
of a felony, would be useless and nugatory if the courts of justice were not under
obligation to ful ll such duty, irrespective of whether or not the accused has
applied for it, just as would also all provisions relating to the prescriptive of the
crime and the penalty."

If the judgment which could be affected and modi ed by the reduced penalties
provided in Republic Act No. 7659 has already become nal and executory or the accused
is serving sentence thereunder, then practice, procedure and pragmatic considerations
would warrant and necessitate the matter being brought to the judicial authorities for relief
under a writ of habeas corpus. 5 6
2. Probably through oversight, an error on the matter of imposable penalties
appears to have been committed in the drafting of the aforesaid law, thereby calling for
and necessitating judicial reconciliation and craftsmanship.
As applied to the present case, Section 4 of Republic Act No. 6425, as now further
amended, imposes the penalty of reclusion perpetua to death and a ne ranging from
P500,000.00 to P10,000,000.00 upon any person who shall unlawfully sell, administer,
deliver, give away, distribute, dispatch in transit or transport any prohibited drug. That
penalty, according to the amendment to Section 20 of the law, shall be applied if what is
involved is 750 grams or more of indian hemp or marijuana; otherwise, if the quantity
involved is less, the penalty shall range from prision correccional to reclusion perpetua
depending upon the quantity.
In other words, there is here an overlapping error in the provisions on the penalty of
reclusion perpetua by reason of its dual imposition, that is, as the maximum of the penalty
where the marijuana is less than 750 grams, and also as the minimum of the penalty where
the marijuana involved is 750 grams or more. The same error has been committed with
respect to the other prohibited and regulated drugs provided in said Section 20. To
harmonize such conflicting provisions in order to give effect to the whole law, 5 7 we hereby
hold that the penalty to be imposed where the quantity of the drugs involved is less than
the quantities stated in the rst paragraph shall range from prision correccional to
reclusion temporal, and not reclusion perpetua. This is also concordant with the
fundamental rule in criminal law that all doubts should be construed in a manner favorable
to the accused.
3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence
covered by the imposable range of penalties under the second paragraph of Section 20, as
now modi ed, the law provides that the penalty shall be taken from said range " depending
upon the quantity" of the drugs involved in the case. The penalty in said second paragraph
constitutes a complex one composed of three distinct penalties, that is, prision
correccional, prision mayor, and reclusion temporal. In such a situation, the Code provides
that each one shall form a period, with the lightest of them being the minimum, the next as
the medium, and the most severe as the maximum period. 5 8
Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating
circumstances determine which period of such complex penalty shall be imposed on the
accused. The peculiarity of the second paragraph of Section 20, however, is its speci c
mandate, above quoted, that the penalty shall instead depend upon the quantity of the drug
subject of the criminal transaction. 59 Accordingly, by way of exception to Article 77 of the
Code and to subserve the purpose of Section 20 of Republic Act No. 7659, each of the
aforesaid component penalties shall be considered as a principal imposable penalty
depending on the quantity of the drug involved. Thereby, the modifying circumstances will
not altogether be disregarded. Since each component penalty of the total complex penalty
will have to be imposed separately as determined by the quantity of the drug involved, then
the modifying circumstances can be used to x the proper period of that component
penalty, as shall hereafter be explained.
It would, therefore, be in line with the provisions of Section 20 in the context of our
aforesaid disposition thereon that, unless there are compelling reasons for a deviation, the
quantities of the drugs enumerated in its second paragraph be divided into three, with the
resulting quotient, and double or treble the same, to be respectively quotient, and double
or treble the same, to be respectively the bases for allocating the penalty proportionately
among the three aforesaid periods according to the severity thereof. Thus, if the marijuana
involved is below 250 grams, the penalty to be imposed shall be prision correccional; from
250 to 499 grams, prision mayor; and 500 to 749 grams, reclusion temporal.
Parenthetically, ne is imposed as a conjuncture penalty only if the penalty is reclusion
perpetua to death. 6 0
Now, considering the minimal quantity of the marijuana subject of the case at bar,
the penalty of prision correccional is consequently indicated but, again, another preliminary
and cognate issue has first to be resolved.
4. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a
divisible penalty, it consists of three periods as provided in the text of and illustrated in the
table provided by Article 76 of the Code. The question is whether or not in determining the
penalty to be imposed, which is here to be taken from the penalty of prision correccional,
the presence or absence of mitigating, aggravating or other circumstances modifying
criminal liability should be taken into account.cdrep
The Court is not unaware of cases in the past wherein it was held that, in imposing
the penalty for offenses under special laws, the rules on mitigating or aggravating
circumstances under the Revised Penal Code cannot and should not be applied. A review
of such doctrines as applied in said cases, however, reveals that the reason therefor was
because the special laws involved provided their own speci c penalties for the offenses
punished thereunder, and which penalties were not taken from or with reference to those in
the Revised Penal Code. Since the penalties then provided by the special laws concerned
did not provide for the minimum, medium or maximum periods, it would consequently be
impossible to consider the aforestated modifying circumstances whose main function is
to determine the period of the penalty in accordance with the rules in Article 64 of the
Code.
This is also the rationale for the holding in previous cases that the provisions of the
Code on the graduation of penalties by degrees could not be given supplementary
application to special laws, since the penalties in the latter were not components of or
contemplated in the scale of penalties provided by Article 71 of the former. The suppletory
effect of the Revised Penal Code to special laws, as provided in Article 10 of the former,
cannot be invoked where there is a legal or physical impossibility of, or a prohibition in the
special law against, such supplementary application.
The situation, however, is different where although the offense is de ned in and
ostensibly punished under special law, the penalty therefor is actually taken from the
Revised Penal Code in its technical nomenclature and, necessarily, with its duration,
correlation and legal effects under the system of penalties native to said Code. When, as in
this case, the law involved speaks of prision correccional, in its technical sense under the
Code, it would consequently be both illogical and absurd to posit otherwise. More on this
later.
For the nonce, we hold that in the instant case the imposable penalty under Republic
Act No. 6425, as amended by Republic Act No. 7659, is prision correccional, to be taken
from the medium period thereof pursuant to Article 64 of the Revised Penal Code, there
being no attendant mitigating or aggravating circumstance.
5. At this juncture, a clari catory discussion of the developmental changes in the
penalties imposed for offenses under special laws would be necessary.
Originally, those special laws, just as was the conventional practice in the United
States but differently from the penalties provided in our Revised Penal Code and its
Spanish origins, provided for one speci c penalty or a range of penalties with de nitive
durations, such as imprisonment for one year or for one to ve years but without division
into periods or any technical statutory cognomen. This is the special law contemplated in
and referred to at the time laws like the Indeterminate Sentence Law 61 were passed
during the American regime.
Subsequently, a different pattern emerged whereby a special law would direct that
an offense thereunder shall be punished under the Revised Penal Code and in the same
manner provided therein. Inceptively, for instance, Commonwealth Act No. 303 6 2
penalizing non-payment of salaries and wages with the periodicity prescribed therein,
provided:
"SECTION 4. Failure of the employer to pay his employee or laborer as
required by section one of this act, shall prima facie be considered a fraud
committed by such employer against his employee or laborer by means of false
pretenses similar to those mentioned in article three hundred and fteen,
paragraph four, sub-paragraph two (a) of the Revised Penal Code and shall be
punished in the same manner as therein provided." 6 3
Thereafter, special laws were enacted where the offenses de ned therein were
speci cally punished by the penalties as technically named and understood in the Revised
Penal Code. These are exempli ed by Republic Act No. 1700 (Anti-Subversion Act) where
the penalties ranged from arresto mayor to death; 6 4 Presidential Decree No. 1612 (Anti-
Fencing Decree) where the penalties run from arresto mayor to prision mayor; and
Presidential Decree No. 1866 (illegal possession and other prohibited acts involving
rearms), the penalties wherefore may involve prision mayor, reclusion temporal, reclusion
perpetua or death.
Another variant worth mentioning is Republic Act No. 6539 (Anti-Carnapping Act of
1972) where the penalty is imprisonment for not less than 14 years and 8 months and not
more than 17 years and 4 months, when committed without violence or intimidation of
persons or force upon things; not less than 17 years and 4 months and not more than 30
years, when committed with violence against or intimidation of any person, or force upon
things; and life imprisonment to death, when the owner, driver or occupant of the
carnapped vehicle is killed.
With respect to the rst example, where the penalties under the special law are
different from and are without reference or relation to those under the Revised Penal Code,
there can be no suppletory effect of the rules for the application of penalties under said
Code or by other relevant statutory provisions based on or applicable only to said rules for
felonies under the Code. In this type of special law, the legislative intendment is clear.
The same exclusionary rule would apply to the last given example, Republic Act No.
5639. While it is true that the penalty of 14 years and 8 months to 17 years and 4 months
is virtually equivalent to the duration of the medium period of reclusion temporal, such
technical term under the Revised Penal Code is not given to that penalty for carnapping.
Besides, the other penalties for carnapping attended by the qualifying circumstances
stated in the law do not correspond to those in the Code. The rules on penalties in the
Code, therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of the
same formulation. cdrep
On the other hand, the rules for the application of penalties and the correlative
effects thereof under the Revised penal Code, as well as other statutory enactments
founded upon and applicable to such provisions of the Code, have suppletory effect to the
penalties under the former Republic act No. 1700 and those now provided under
Presidential Decrees Nos. 1612 and 1866. While these are special laws, the fact that the
penalties for offenses thereunder are those provided for in the Revised Penal Code lucidly
reveals the statutory intent to give the related provisions on penalties for felonies under
the Code the corresponding application to said special laws, in the absence of any express
or implicit proscription in these special laws. To hold otherwise would be to sanction an
indefensible judicial truncation of an integrated system of penalties under the Code and its
allied legislation, which could never have been the intendment of Congress.
In People vs. Macatanda, 6 5 a prosecution under a special law (Presidential Decree
No. 533, otherwise known as the Anti-Cattle Rustling Law of 1974), it was contended by
the prosecution that Article 64, paragraph 5, of the Revised Penal Code should not apply to
said special law. We said therein that —
"We do not agree with the Solicitor General that P.D. 533 is a special law
entirely distinct from and unrelated to the Revised Penal Code. From the nature of
the penalty imposed which is in terms of the classi cation and duration of
penalties as prescribed in the Revised Penal Code, which is not for penalties as
are ordinarily imposed in special laws, the intent seems clear that P.D. 533 shall
be deemed as an amendment of the Revised Penal Code, with respect to the
offense of theft of large cattle (Art. 310) or otherwise to be subject to applicable
provisions thereof such as Article 104 of the Revised Penal Code . . . Article 64 of
the same Code should, likewise, applicable, . . ." (Emphasis supplied.)
More particularly with regard to the suppletory effect of the rules on penalties in the
Revised Penal Code to Republic Act No. 6425, in this case involving Article 63(2) of the
Code, we have this more recent pronouncement:
". . . Pointing out that as provided in Article 10 the provisions of the Revised
Penal Code shall be 'supplementary' to special laws, this Court held that where the
special law expressly grants to the court discretion in applying the penalty
prescribed for the offense, there is no room for the application of the provisions of
the Code. . .
"The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623,
contains no explicit grant of discretion to the Court in the application of the
penalty prescribed by the law. In such case, the court must be guided by the rules
prescribed by the Revised Penal Code concerning the application of penalties
which distill the 'deep legal though and centuries of experience in the
administration of criminal laws.'" (Emphasis ours.) 6 6
Under the aforestated considerations, in the case of the Dangerous Drugs Act as
now amended by Republic Act No. 7659 by the incorporation and prescription therein of
the technical penalties de ned in and constituting integral parts of the three scales of
penalties in the Code, 67 with much more reason should the provisions of said Code on the
appreciation and effects of all attendant modifying circumstances apply in xing the
penalty. Likewise, the different kinds or classi cations of penalties and the rules for
graduating such penalties by degrees should have supplementary effect on Republic Act
No. 6425, except if they would result in absurdities as will now be explained.
While not squarely in issue in this case, but because this aspect is involved in the
discussion on the role of modifying circumstances, we have perforce to lay down the
caveat that mitigating circumstances should be considered and applied only if they affect
the periods and the degrees of the penalties within rational limits.
Prefatorily, what ordinarily are involved in the graduation and consequently
determine the degree of the penalty, in accordance with the rules in Article 61 of the Code
as applied to the scale of penalties in Article 71, are the stage of execution of the crime
and the nature of the participation of the accused. However, under paragraph 5 of Article
64, when there are two or more ordinary mitigating circumstances and no aggravating
circumstance, the penalty shall be reduced by one degree. Also, the presence of privileged
mitigating circumstances, as provided in Articles 67 and 68, can reduce the penalty by one
or two degrees, or even more. These provisions of Articles 64(5), 67 and 68 should not
apply in toto in the determination of the proper penalty under the aforestated second
paragraph of Section 20 of Republic Act No. 6425, to avoid anomalous results which could
not have been contemplated by the legislature.
Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in
some manner not specially provided for in the four preceding paragraphs thereof, the
courts shall proceed by analogy therewith. Hence, when the penalty prescribed for the
crime consists of one or two penalties to be imposed in their full extent, the penalty next
lower in degree shall likewise consist of as many penalties which follow the former in the
scale in Article 71. If this rule were to be applied, and since the complex penalty in this
case consists of three discrete penalties in their full extent, that is, prision correccional,
prision mayor and reclusion temporal, then one degree lower would be arresto menor,
destierro and arresto mayor. There could, however, be no further reduction by still one or
two degrees, which must each likewise consist of three penalties, since only the penalties
of fine and public censure remain in the scale. LexLib
The Court rules, therefore, that while modifying circumstances may be appreciated
to determine the periods of the corresponding penalties, or even reduce the penalty by
degrees, in no case should such graduation of penalties reduce the imposable penalty
beyond or lower than prision correccional. It is for this reason that the three component
penalties in the second paragraph of Section 20 shall each be considered as an
independent principal penalty, and that the lowest penalty should in any event be prision
correccional in order not to depreciate the seriousness of drug offenses. Interpretatio
enda est ut res magis valeat quam pereat . Such interpretation is to be adopted so that
the law may continue to have e ciency rather than fail. A perfect judicial solution cannot
be forged from an imperfect law, which impasse should now be the concern of and is
accordingly addressed to Congress.
6. The nal query is whether or not the Indeterminate Sentence Law is applicable to
the case now before us. Apparently it does, since drug offenses are not included in nor has
appellant committed any act which would put him within the exceptions to said law and
the penalty to be imposed does not involve reclusion perpetua or death, provided, of
course, that the penalty as ultimately resolved will exceed one year of imprisonment. 6 8
The more important aspect, however, is how the indeterminate sentence shall be
ascertained.
It is true that Section 1 of said law, after providing for indeterminate sentence for an
offense under the Revised Penal Code, states that "if the offense is punished by any other
law, the court shall sentence the accused to an indeterminate sentence, the maximum term
of which shall not exceed the maximum xed by said law and the minimum shall not be
less than the minimum term prescribed by the same" We hold that this quoted portion of
the section indubitably refers to an offense under a special law wherein the penalty
imposed was not taken from and is without reference to the Revised Penal Code, as
discussed in the preceding illustrations, such that it may be said that the "offense is
punished" under that law.
There can be no sensible debate that the aforequoted rule on indeterminate
sentence for offenses under special laws was necessary because of the nature of the
former type of penalties under said laws which were not included or contemplated in the
scale of penalties in Article 71 of the Code, hence there could be no minimum "within the
range of the penalty next lower to that prescribed by the Code for the offense," as is the
rule for felonies therein. In the illustrative examples of penalties in special laws
hereinbefore provided, this rule applied, and would still apply, only to the rst and last
examples. Furthermore, considering the vintage of Act No. 4103 as earlier noted, this
holding is but an application and is justified under the rule of contemporanea expositio. 6 9
We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659, has
unquali edly adopted the penalties under the Revised Penal Code in their technical terms,
hence with their technical signi cation and effects. In fact, for purposes of determining the
maximum of said sentence, we have applied the provisions of the amended Section 20 of
said law to arrive at prision correccional and Article 64 of the Code to impose the same in
the medium period. Such offense, although provided for in a special law, is now in the
effect punished by and under the Revised Penal Code. Correlatively, to determine the
minimum, we must apply the rst part of the aforesaid Section 1 which directs that "in
imposing a prison sentence for an offense punished by the Revised Penal Code, or its
amendments, the court shall sentence the accused to an indeterminate sentence the
maximum term of which shall be that which, in view of the attending circumstances, could
be properly imposed under the rules of said Code, and the minimum which shall be within
the range of the penalty next lower to that prescribed by the Code for the offense."
(Emphasis ours.)
A divergent pedantic application would not only be out of context but also an
admission of the hornbook maxim that qui haeret in litera haeret in cortice. Fortunately,
this Court has never gone only skin-deep in its construction of Act No. 4103 by a mere
literal appreciation of its provisions. Thus, with regard to the phrase in Section 2 thereof
excepting from its coverage "persons convicted of offenses punished with death penalty
or life imprisonment," we have held that what is considered is the penalty actually imposed
and not the penalty imposable under the law, 7 0 and that reclusion perpetua is likewise
embraced therein although what the law states is "life imprisonment."
What irresistibly emerges from the preceding disquisition, therefore, is that under
the concurrence of the principles of literal interpretation, which have been rationalized by
comparative decisions of this Court; of historical interpretation, as explicated by the
antecedents of the law and related to contemporaneous legislation; and of structural
interpretation, considering the interrelation of the penalties in the Code as supplemented
by Act No. 4103 in an integrated scheme of penalties, it follows that the minimum of the
indeterminate sentence in this case shall be the penalty next lower to that prescribed for
the offense. Thereby we shall have interpreted the seeming ambiguity in Section 1 of Act
No. 4103 in such a way as to harmonize laws with laws, which is the best mode of
interpretation. 7 1
The Indeterminate Sentence Law is a legal and social measure of compassion, and
should be liberally interpreted in favor of the accused. 7 2 The "minimum" sentence is
merely a period at which, and not before, as a matter of grace and not of right, the prisoner
may merely be allowed to serve the balance of his sentence outside of his con nement. 7 3
It does not constitute the totality of the penalty since thereafter he still has to continue
serving the rest of his sentence under set conditions. That minimum is only the period
when the convict's eligibility for parole may be considered. In fact, his release on parole
may readily be denied if he is found unworthy thereof, or his reincarceration may be
ordered on legal grounds, even if he has served the minimum sentence.
It is thus both amusing and bemusing if, in the case at bar, appellant should be
begrudged the bene t of a minimum sentence within the range of arresto mayor, the
penalty next lower to prision correccional which is the maximum range we have xed
through the application of Articles 61 and 71 of the Revised Penal Code. For, with fealty to
the law, the court may set the minimum sentence at 6 months of arresto mayor, instead of
6 months and 1 day of prision correccional. The difference, which could thereby even
involve only one day, is hardly worth the creation of an overrated tempest in the judicial
teapot.
ACCORDINGLY, under all the foregoing premises, the judgment of conviction
rendered by the court a quo against accused-appellant Martin Simon y Sunga is AFFIRMED,
but with the MODIFICATION that he should be, as he hereby is, sentenced to serve an
indeterminate penalty of six (6) months of arresto mayor, as the minimum, to six (6)
months of arresto mayor, as the minimum, to six (6) years of prision correccional, as the
maximum thereof. LibLex
SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Bidin, Romero, Melo, Puno, Vitug, Kapunan and Mendoza,
JJ., concur.
Bellosillo, J., is on leave.
Davide, Jr., see separate opinion.
Separate Opinions
DAVIDE, JR., J ., dissenting:
I am still unable to agree with the view that (a) in appropriate cases where the
penalty to be imposed would be prision correccional pursuant to the second paragraph of
Section 20 of R.A. No. 6425, as amended by Section 16 of R.A. No. 7659, the sentence to
be meted out, applying the Indeterminate Sentence Law (Act No. 4103, as amended),
should be that whose minimum is within the range of the penalty next lower, i.e., arresto
mayor; and (b) the presence of two or more mitigating circumstances not offset by any
mitigating circumstances or of a privileged mitigating circumstance shall not reduce the
penalty by one or two degrees if the penalty to be imposed, taking into account the
quantity of the dangerous drugs involved, would be prision correccional. cdphil
I
The rst view is based on the proposition that since R.A. No. 7659 unquali edly
adopted the penalties under the Revised Penal Code in their technical terms, hence also
their technical signi cation and effects, then what should govern is the rst part of Section
1 of the Indeterminate Sentence Law which directs that:
"in imposing a prison sentence for an offense punished by the Revised
Penal Code, or its amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be that which, in view
of the attending circumstances, could be properly imposed under the rules of the
said Code, and the minimum which shall be within the range of the penalty next
lower to that prescribed by the Code for the offense."
Elsewise stated, by the adoption of the penalties provided for in the Revised Penal
Code for the offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as
amended, the latter offenses would now be considered as punished under the Revised
Penal code for purposes of the Indeterminate Sentence Law.
Section 1 of the Indeterminate Sentence Law (Act No. 4103, as amended by Act No.
4225 and R.A. No. 4203) also provides that:
"if the offense is punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which shall not
exceed the maximum xed by said law and the minimum shall not be less than
the minimum prescribed by the same." (Emphasis supplied).
There are, therefore, two categories of offenses which should be taken into account
in the application of the Indeterminate Sentence Law: (1) offenses punished by the Revised
Penal Code, and (2) offenses punished by other laws (or special laws).
The offenses punished by the Revised Penal Code are those defined and penalized in
Book II thereof, which is thus appropriately titled CRIMES AND PENALTIES. To simplify
further, a crime is deemed punished under the Revised Penal Code if it is de ned by it, and
none other, as a crime and is punished by a penalty which is included in the classi cation
of Penalties in Chapter II, Title III of Book I thereof.
On the other hand, an offense is considered punished under any other law (or special
law) if it is not defined and penalized by the Revised Penal Code but by such other law.
It is thus clear that an offense is punished by the Revised Penal Code if both its
de nition and the penalty therefor are found in the said Code, and it is deemed punished by
a special law if its de nition and the penalty therefor are found in the special law. That the
latter imports or borrows from the Revised Penal Code its nomenclature of penalties does
not make an offense in the special law punished by or punishable under the Revised Penal
Code. The reason is quite simple. It is still the special law that de nes the offense and
imposes a penalty therefor, although it adopts the Code's nomenclature of penalties. In
short, the mere use by a special law of a penalty found in the Revised Penal Code can by no
means make an offense thereunder an offense "punished or punishable" by the Revised
Penal Code. LexLib
Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted the
penalties prescribed by the Revised Penal Code in drug cases, offenses related to drugs
should now be considered as punished under the Revised Penal Code. If that were so, then
we are also bound, ineluctably, to declare that such offenses are mala in se and to apply
the Articles of the Revised Penal Code regarding the stages of a felony (Article 6), the
nature of participation (Article 16), accessory penalties (Articles 40-45), application of
penalties to principals, accomplices, and accessories (Article 46 et seq.), complex crimes
(Article 48), and graduation of penalties (Article 61), among others. We cannot do
otherwise without being drawn to an inconsistent posture which is extremely hard to
justify.
I respectfully submit then that the adoption by the Dangerous Drugs Act of the
penalties in the Revised Penal Code does not make an offense under the Dangerous Drugs
Act an offense punished by the Revised Penal Code. Consequently, where the proper
penalty to be imposed under Section 20 of the Dangerous Drugs Act is prision
correccional, then, applying the Indeterminate Sentence Law, the indeterminate sentence
to be meted on the accused should be that whose minimum should not be less than the
minimum prescribed by the special law (the Dangerous Drugs Act), i.e., not lower than six
(6) months and one (1) day of prision correccional.
II
The majority opinion holds the view that while the penalty provided for the Section
20 of the Dangerous Drugs Act is a complex one composed of three distinct penalties, viz.,
prision correccional, prision mayor, and reclusion temporal, and that pursuant to Article 77
of the Revised Penal Code, each should form a period, with the lightest of them being the
minimum, the next as the medium, and the most severe as the maximum, yet, considering
that under the said second paragraph of Section 20 the penalty depends on the quantity of
the drug subject of the criminal transaction, then by way of exception to Article 77 of the
Revised Penal Code and to subserve the purpose of Section 20, as amended, each of the
aforesaid component penalties shall be considered as a principal penalty depending on
the quantity of the drug involved. Thereafter, applying the modifying circumstances
pursuant to Article 64 of the Revised Penal Code, the proper period of the component
penalty shall then be fixed.
To illustrate, if by the quantity of the drugs involved ( e.g., marijuana below 250
grams) the proper principal penalty should be prision correccional, but there is one
mitigating and no aggravating circumstance, then the penalty to be imposed should be
prision correccional in its minimum period. Yet, the majority opinion puts a limit to such a
rule. It declares:
"The Court rules, therefore, that while modifying circumstances may be
appreciated to determine the periods of the corresponding penalties, or even
reduce the penalty by degrees, in no case should such graduation of penalties
reduce the imposable penalty beyond or lower than prision correccional. It is for
this reason that the three component penalties in the second paragraph of
Section 20 shall each be considered as an independent principal penalty, and that
the lowest penalty should in any event be prision correccional in order not to
depreciate the seriousness of drug offenses."
Simply put, this rule would allow the reduction from reclusion temporal — if it is the
penalty to be imposed on the basis of the quantity of the drugs involved — by two degrees,
or to prision correccional, if there are two or more mitigating circumstances and no
aggravating circumstance is present (paragraph 5, Article 64, Revised Penal code) or if
there is a privileged mitigating circumstance of, say, minority (Article 68, Revised Penal
Code), or under circumstances covered by Article 69 of the Revised Penal Code. Yet, if the
proper penalty to be imposed is prision mayor, regardless of the fact that a reduction by
two degrees is proper, it should only be reduced by one degree because the rule does not
allow a reduction beyond prision correccional. Finally, if the proper penalty to be imposed
is prision correccional, no reduction at all would be allowed.
I nd the justi cation for the rule to be arbitrary and unfair. It is arbitrary because
within the same second paragraph involving the same range of penalty, we both allow and
disallow the application of Article 64(5), Article 68, and Article 69 of the Revised Penal
Code. The reason for the disallowance, viz., in order not to depreciate the seriousness of
drug offenses, is unconvincing because Section 20 of the Dangerous Drug Act, as
amended by R.A. No. 7659, has in fact "depreciated" the seriousness of drug offenses by
providing quantity as basis for the determination of the proper penalty and limiting ne
only to cases punishable by reclusion perpetua to death. It is unfair because an accused
who is found guilty of possessing MORE dangerous drugs — say 500 to 749 grams of
marijuana, in which case the penalty to be imposed would be reclusion temporal — may
only be sentenced to six (6) months and one (1) day of prision correccional minimum
because of privileged mitigating circumstances. Yet, an accused who is found guilty of
possession of only one (1) gram of marijuana — in which case the penalty to be imposed is
prision correccional — would not be entitled to a reduction thereof even if he has the same
number of privileged mitigating circumstances as the former has. prLL
Also, if the privileged mitigating circumstance happens to be the minority of the

accused, then he is entitled to the reduction of the penalty as a matter of right pursuant to
Article 68 of the Revised Penal Code, which reads:
"ARTICLE 68. Penalty to be imposed upon a person under eighteen years of
age. — When the offender is a minor under eighteen years and his case is one
coming under the provisions of the paragraph next to the last of Article 80 of this
Code, the following rules shall be observed:
1. Upon a person under fteen but over nine years of age, who is not
exempted from Liability by reason of the court having declared that he
acted with discernment, a discretionary penalty shall be imposed, but
always Lower by two degrees at Least than that prescribed by Law for the
crime which he committed.
2. Upon a person over fteen and under eighteen years of age the
penalty next Lower than that prescribed by law shall be imposed, but
always in the proper period."
I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs
Act, as amended by Section 17 of R.A. No. 7659, we can be at liberty to apply the Revised
Penal Code in one aspect and not to apply it in another.
Feliciano and Quiason, JJ ., dissent.
Footnotes
** This case was initially raffled to the Second Division of the Court but due to the novelty and
importance of the issues raised on the effects of R.A. No. 7659 in amending R.A. No.
6425, the same was referred to and accepted by the Court en banc pursuant to Circular
No. 2-89 and Bar Matter No. 209, as amended.
1. Original Record, 2; Criminal Case No. G-2320, Regional Trial Court, Branch 51, Guagua,
Pampanga.

2. Ibid., 11.
3. Ibid., 23.
4. TSN, April 6, 1989, 5-32.
5. Ibid., May 5, 1989, 2.

6. Ibid., May 24, 1989, 18; May 5, 1989, 11.
7. Ibid., May 24, 1989, 21-24.
8. Ibid., June 14, 1989, 3-22.

9. Ibid., July 10, 1989, 5-26.
10. Ibid., July 17, 1989, 8-16.
11. Ibid., August 18, 1989, 36, 41-43, 47-49.

12. Original Record, 174-175; per Judge Arsenio P. Roman.
13. Brief for Accused-Appellant, 3; Rollo, 54.
14. Exhibits F and G, Folder of Exhibits; TSN, July 10, 1989, 53.
15. Original Record, 2.

16. See People vs. Salamat, G.R. No. 103295, August 20, 1993.
17. People vs. Alilin, G.R. No. 84363, March 4, 1992, 206 SCRA 772.
18. See People vs. Querrer, G.R. No. 87147, July 15, 1992, 211 SCRA 502.
19. People vs. Lati, G.R. No. 70393, April 17, 1990, 184 SCRA 336.
20. TSN, May 5, 1989, 5.
21. Sec. 3(m), Rule 131, Rules of Court.
22. See People vs. Labra, G.R. No. 98427, November 20, 1992, 215 SCRA 822.
23. TSN, August 18, 1989, 3.
24. Ibid., id., 12; Exhibit M, Folder of Exhibits.
25. People vs. Celiz, et al., G.R. No. 92849, October 20, 1992, 214 SCRA 755.
26. Brief for Accused-Appellant, 4-5; Rollo, 55-56.
27. People vs. Fernandez, G.R. No. 86495, May 13, 1992, 209 SCRA 1.
29. TSN, May 5, 1989, 7.

30. People vs. Castiller, G.R. No. 87783, August 6, 1990, 188 SCRA 376.
31. Brief for Accused-Appellant, 6-7; Rollo, 57-58.
32. Exhibit F, Folder of Exhibits.

33. Exhibit G, ibid.
34. People vs. Mauyao, G.R. No. 84525, April 26, 1992, 207 SCRA 732.
35. TSN, May 5, 1989, 11.
36. Sec. 12 (1), Art. III, 1987 Constitution.

37. People vs. Rumeral, G.R. No. 86320, August 5, 1991, 200 SCRA 194.
38. People vs. Sibug, G.R. No. 108520, January 24, 1994.

40. People vs. Tandoy, G.R. No. 80505, December 4, 1990, 192 SCRA 28.
41. Cf. People vs. Cina, G.R. No. 88220, October 1, 1990, 190 SCRA 199.
42. People vs. Consuelo, G.R. No. 77755, April 18, 1990, 184 SCRA 402.
43. TSN, June 10, 1989, 12-13.

44. People vs. Eslaban, G.R. Nos. 101211-12, February 8, 1993, 218 SCRA 534.
45. TSN, June 14, 1989, 22.
46. Ibid., August 18, 1989, 48.

47. Ibid., July 17, 1989, 15-16.
48. Ibid., October 23, 1988, 15-16.
49. Ibid., July 17, 1989, 22; October 23, 1988, 15.
50. Ibid., July 10, 1989, 26-27.

52. Sec. 28 of Republic Act No. 7659 provides that it "shall take effect fifteen (15) days after its
publication in two (2) national newspapers of general circulation," and it was so
published in the December 16, 1993 issues of the Manila Bulletin, Philippine Star,
Malaya and Philippine Time Journal.
53. Title Five, Crimes Relative to Opium and Other Prohibited Drugs.
54. U.S. vs. Hocbo, 12 Phil. 304 (1908); U.S. vs. Parrone, 24 Phil. 29 (1913); U.S. vs. Almencion,
25 Phil. 648 (1913); People vs. Moran, et al., 44 Phil. 387 (1923); People vs. Parel, 44
Phil. 437 (1923); People vs. Tamayo, 61 Phil. 225 (1935).
55. Article 62 (5), Revised Penal Code.

56. See Harden vs. Director of Prisons, 81 Phil. 741 (1948); Gumabon, et al. vs. Director of the
Bureau of Prisons, L-30026, January 30, 1971, 37 SCRA 420.
57. Lopez and Sons, Inc. vs. Court of Tax Appeals, et al., 100 Phil. 850 (1957).
58. Article 77, Revised Penal Code.
59. This graduated scheme of penalties is not stated with regard and does not apply to the
quantities and their penalties provided in the first paragraph, the penalties therein being
the same regardless of whether the quantities exceed those specified therein.
60. Sec. 4, in relation to Sec. 20, R.A. No. 7659.

61. Act No. 4103, effective on December 5, 1933.
62. Effective on June 9, 1938.

63. See a similar format in P.D. No. 330 which penalizes the illegal taking of timber and forest
products under Arts. 308, 309 and 310 of the Revised Penal Code by reference.
64. In fact, the penalty for officers or ranking leaders was prision mayor to death, just like the
penalty for treason by a resident alien under Article 114 of the Revised Penal Code.
65. G.R. No. 51368, November 6, 1081, 109 SCRA 35.
66. People vs. Tsang Hin Wai, et al., G.R. No. 66389, September 8, 1986, 144 SCRA 22. in his
sponsorship speech of Senate Bill No. 891 as Chairman of the Special Committee on the
Death Penalty, Senator Arturo M. Tolentino made this enlightening explanation as
reported in the records of the Senate and which is pertinent to our present discussion: ". .
. Article 190, referring to prohibited drugs, actually was repealed by the enactment of a
special law referring to drugs. But since we were only amending the Revised Penal Code
in this proposed bill or draft, we reincorporated Article 190 in an amended form. . . . It
reincorporates and amends Article 190 on the importation, manufacture, sale,
administration upon another, or distribution of prohibited drugs, planting or cultivation of
any plant, which is a source of prohibited drugs, maintenance of a den, dive or similar
place, as defined in the Dangerous Drugs Law" (9th CRP, 1st Regular Session, Vol. 1, No.
71, 12).
67. See Articles 25, 70 and 71, Revised Penal Code.
68. Section 2, Act No. 4103, as amended.

69. Contemporaneous exposition, or construction; a construction drawn from the time when,
and the circumstances under which, the subject-matter to be construed, such as a
custom or statute, originated (Black's Law Dictionary, 4th ed., 390).
70. People vs. Roque, et al., 90 Phil. 142 (1951); People vs. Dimalanta, 92 Phil. 239 (1952);
People vs. Moises, et al., G.R. L-32495, August 13, 1975, 66 SCRA 151.
71. Interpretare et concordare leges legibus, est optimus interpretandi modus (Black's Law
Dictionary, 4th ed., 953).
72. People vs. Nang Kay, 88 Phil. 515 (1951).
73. 24 C.J.S., Indeterminate Sentence, Sec. 1993, 1217-1218.

THIRD DIVISION
[G.R. No. 150723. July 11, 2006.]
MANABAN petitioner, vs . COURT OF APPEALS and THE

RAMONITO MANABAN,
PHILIPPINES respondents.
DECISION
CARPIO , J : p
The Case
This is a petition for review 1 of the Decision 2 dated 21 May 2001 and the
Resolution 3 dated 8 November 2001 of the Court of Appeals in CA-G.R. CR No. 23790. In
its 21 May 2001 Decision, the Court of Appeals a rmed the Decision of the Regional Trial
Court of Quezon City, Branch 219 ("trial court"), nding Ramonito Manaban ("Manaban")
guilty of the crime of homicide. In its 8 November 2001 Resolution, the Court of Appeals
modified its Decision by reducing the award for loss of earning capacity.
The Facts
The facts as narrated by the trial court are as follows:
On October 11, 1996, at around 1:25 o'clock in the morning, Joselito
Bautista, a father and a member of the UP Police Force, took his daughter, Frinzi,
who complained of di culty in breathing, to the UP Health Center. There, the
doctors prescribed certain medicines to be purchased. Needing money therefore,
Joselito Bautista, who had taken alcoholic drinks earlier, proceeded to the BPI
Kalayaan Branch to withdraw some money from its Automated Teller Machine
(ATM).
Upon arrival at the bank, Bautista proceeded to the ATM booth but because
he could not effectively withdraw money, he started kicking and pounding on the
machine. For said reason, the bank security guard, Ramonito Manaban,
approached and asked him what the problem was. Bautista complained that his
ATM was retrieved by the machine and that no money came out of it. After
Manaban had checked the receipt, he informed Bautista that the Personal
Identi cation Number (PIN) entered was wrong and advised him to just return the
next morning. This angered Bautista all the more and resumed pounding on the
machine. Manaban then urged him to calm down and referred him to their
customer service over the phone. Still not molli ed, Bautista continued raging and
striking the machine. When Manaban could no longer pacify him, he red a
warning shot. That diverted the attention of Bautista. Instead of venting his ire
against the machine, he confronted Manaban. After some exchange of words, a
shot rang out fatally hitting Bautista. 4
On 24 October 1996, Manaban was charged with the crime of murder. The
Information states:
That on or about the 11th day of October 1996, in Quezon City, Philippines,
the above-named accused, armed with a gun, and with intent to kill, quali ed by
treachery, did then and there wilfully, unlawfully and feloniously attack, assault
and employ personal violence upon the person of one JOSELITO BAUTISTA, by
then and there, shooting him at the back portion of his body, thereby in icting
upon said JOSELITO BAUTISTA mortal wounds which were the direct and
immediate cause of his untimely death, to the damage and prejudice of the heirs
of the said JOSELITO BAUTISTA. 5
When arraigned on 4 December 1996, 6 Manaban pleaded not guilty to the offense
charged. Trial then followed.
The Trial
The Prosecution's Version
The prosecution presented six witnesses: (1) Faustino Delariarte ("Delariarte"); (2)
SPO1 Dominador Salvador ("SPO1 Salvador"); (3) Rodolfo Bilgera ("Bilgera"); (4) Celedonia
H. Tan ("Tan"); (5) Dr. Eduardo T. Vargas ("Dr. Vargas"); and (6) Editha Bautista ("Editha").
AEIHaS
Delariarte was a security guard who was employed by the same security agency as
Manaban. Delariarte testi ed that in the early morning of 11 October 1996, their duty
o cer, Diosdado Morga, called him and informed him that one of the guards stationed at
the BPI Kalayaan Branch ("BPI Kalayaan") was involved in a shooting incident. When he
arrived at the bank, Delariarte saw Manaban inside the bank using the phone. He also saw
Joselito Bautista ("Bautista") lying on the ground but still alive. He then told their company
driver, Virgilio Cancisio ("Cancisio"), to take Bautista to the hospital but to be careful since
there was a gun tucked in Bautista's waist. Bautista allegedly reeked of alcohol. Delariarte
further testi ed that when Manaban came out of the bank, Manaban admitted to Delariarte
that he shot Bautista. 7
SPO1 Salvador was a police investigator assigned at Station 10, Philippine National
Police-Central Police District Command (PNP-CPDC) of Quezon City. SPO1 Salvador
testi ed that on 11 October 1996, about 2:05 a.m., the duty desk o cer SPO2
Redemption Negre sent him, SPO1 Jerry Abad and SPO1 Ruben Reyes to BPI Kalayaan to
investigate an alleged shooting incident. SPO1 Salvador testi ed that when they arrived at
BPI Kalayaan, they were met by Delariarte and Cancisio. Manaban then approached them
and surrendered his service rearm, a .38 caliber revolver, to SPO1 Salvador. Manaban
allegedly admitted shooting Bautista. SPO1 Salvador and his team investigated the crime
scene. According to SPO1 Salvador, he saw Bautista lying on his back near the Automated
Teller Machine ("ATM"). A .38 caliber revolver inside a locked holster was tucked in
Bautista's right waist. SPO1 Salvador noticed that Bautista, who was still breathing, had
been shot in the back. They brought Bautista to the East Avenue Medical Center where
Bautista later died. Thereafter, they proceeded to the police station and turned over
Manaban to their desk officer for proper disposition and investigation. 8
Dr. Vargas, National Bureau of Investigation (NBI) Medico-Legal O cer, conducted
an autopsy on Bautista's cadaver. Dr. Vargas testi ed that Bautista died of a gunshot
wound. According to him, the point of entry of the bullet was at the back, on the right side
of the body and there was no exit point. He stated that he was able to recover the slug
from the left anterior portion of the victim's body and that he later submitted the slug to
the NBI Ballistics Division. Dr. Vargas further stated that the bullet wound was fatal
because the bullet hit the right lung and lacerated parts of the liver, stomach and the
pancreas. Based on the location of the gunshot wound, Dr. Vargas deduced that the
assailant must have been behind the victim, on the right side, when he shot the victim. 9 Dr.
Vargas also testi ed that the absence of signs of near- re indicates that the distance
between the muzzle of the gun and the point of entry was more than 24 inches. During
cross-examination, Dr. Vargas testi ed that he was able to take blood samples from the
victim which, based on the NBI Chemistry Division analysis, tested positive for alcohol. 1 0
Dr. Vargas issued a certificate of post-mortem examination 1 1 and an autopsy report. 1 2
Bilgera was a ballistician at the Firearms Investigation Division (FID) of the NBI.
Bilgera testi ed that upon receiving a letter-request dated 11 October 1996 from PNP
Police Inspector Percival Fontanilla, he conducted a ballistic examination on the following
specimens submitted to him:
1. One (1) ARMSCOR 2015, Caliber .38 Revolver, SN-28909 marked "DBS";
2. One (1) ARMSCOR 200, Caliber .38 Revolver, SN-P03471 marked "DBS";
3. One (1) Caliber .38 one badly deformed copper coated lead bullet marked
"RM";
4. Two (2) Caliber .38 empty shells marked "RM-1" and "RM-2";
5. One (1) Caliber .38 misfired ammunition marked "RM-3";
6. Nine (9) Caliber .38 ammunition marked "RM-4", "RM-5", "RM-6" and "JB-1"
to "JB-6"; and
7. One (1) Caliber .38 deformed copper coated lead bullet marked "JB". (Re-
FID No. 606-14-1096 [N-96-2047]). 1 3
Based on the examination, Bilgera concluded that the bullet which was extracted from
Bautista's body by the medico-legal o cer was red from the ARMSCOR 2015 .38
Caliber revolver with Serial No. 28909 1 4 and that the empty shells also came from the
same gun. Bilgera submitted a written report 1 5 on the result of his examination.
Editha, the widow of Joselito Bautista, testi ed that she was married to Bautista on
22 December 1993 in civil rites and that they have four children, the eldest of whom was
13 years old. Editha stated that her husband, who was a member of the University of the
Philippines Police Force ("UP Police Force") since 1985, was receiving a monthly salary of
P5,050 at the time of his death. She narrated that on 11 October 1996, about 1:25 a.m., her
husband brought their daughter Frinzi who had an asthma attack to the UP Health Center
where she was con ned for three days. According to Editha, her husband then left to
withdraw money at BPI Kalayaan for the purchase of medicines. Later, she was fetched by
members of the UP Police Force who informed her that her husband had been shot. Editha
claimed that as a consequence of her husband's death, she spent more than P111,000 1 6
for the nine-day wake, embalmment and funeral services. 1 7
The prosecution and the defense agreed to dispense with the testimony of Tan, the
Assistant Manager of BPI Kalayaan. Instead, they just agreed to stipulate that on 11
October 1996, about 7:45 a.m., Tan and BPI Custodian Elma R. Piñano retrieved BPI
Express Teller Card No. 3085-2616-21 issued to Bautista which was captured by the ATM
because a wrong Personal Identification Number (PIN) was entered. 1 8
The Defense's Version
The defense presented four witnesses: (1) Manaban; (2) Renz Javelona ("Javelona");
(3) Tan; and (4) Patrick Peralta ("Peralta").

Manaban, the accused, testi ed that he was employed by Eagle Star Security
Agency as a security guard and was assigned at BPI Kalayaan. On 10 October 1996, he
was on duty from 7:00 p.m. until 7:00 a.m. the following day.
Manaban narrated that on 11 October 1996, about 1:40 a.m., Bautista tried to
withdraw money from the ATM. Manaban then saw Bautista pounding and kicking the
ATM. When Manaban asked Bautista what was the problem, Bautista replied that no
money came out from the machine. According to Manaban, Bautista appeared to be
intoxicated.
Manaban looked at the receipt issued to Bautista and saw that the receipt indicated
that a wrong PIN was entered. Manaban informed Bautista that the ATM captured
Bautista's ATM card because he entered the wrong PIN. He then advised Bautista to return
the following day when the staff in charge of servicing the ATM would be around.
Bautista replied that he needed the money very badly and then resumed pounding on
the ATM. Manaban tried to stop Bautista and called by telephone the ATM service
personnel to pacify Bautista. Bautista talked to the ATM service personnel and Manaban
heard him shouting invectives and saw him pounding and kicking the ATM again.
When Manaban failed to pacify Bautista, Manaban red a warning shot in the air.
Bautista then faced him and told him not to block his way because he needed the money
very badly. Bautista allegedly raised his shirt and showed his gun which was tucked in his
waist. Manaban stepped back and told Bautista not to draw his gun, otherwise he would
shoot.
However, Bautista allegedly kept on moving toward Manaban, who again warned
Bautista not to come near him or he would be forced to shoot him. Bautista suddenly
turned his back and was allegedly about to draw his gun. Fearing that he would be shot
first, Manaban pulled the trigger and shot Bautista.
cEITCA
Manaban recounted that he then went inside the bank and called the police and his
agency to report the incident. While he was inside the bank, a fellow security guard arrived
and asked what happened. Manaban answered, "wala yan, lasing."
Later, a mobile patrol car arrived. Manaban related the incident to the police o cer
and informed him that Bautista was still alive and had a gun. Manaban then surrendered his
service rearm to the police o cer. According to Manaban, he red his gun twice — once
in the air as a warning shot and the second time at Bautista who was about four meters
from him. 1 9
On cross-examination, Manaban further explained that after he red the warning
shot, Bautista kept coming toward him. Manaban pointed his gun at Bautista and warned
him not to come closer. When Bautista turned his back, Manaban thought Bautista was
about to draw his gun when he placed his right hand on his waist. Fearing for his life, he
pulled the trigger and shot Manaban. According to Manaban, "[n]oong makita ko siya na
pabalikwas siya, na sadya bubunot ng baril, sa takot ko na baka maunahan niya ako at
mapatay, doon ko na rin nakalabit yung gatilyo ng baril ." Manaban declared that it did not
occur to him to simply disable the victim for fear that Bautista would shoot him first. 2 0
Javelona was an ATM Service Assistant of BPI. Javelona testi ed that on 11
October 1996, between 1:30 a.m. and 2:00 a.m., she received a call from a client at BPI
Kalayaan. The client, who was later identi ed as Bautista, complained: " Nagwi-withdraw
ako dito sa ATM Kalayaan. Mali daw yung PIN ko, alam ko tama yung PIN ko. Ilang beses
ko nang ginamit, mali pa rin. Kailangan kong mag-withdraw."
Javelona tried to placate Bautista and advised him not to insert his card anymore
because it might be captured by the machine and to try again later in the morning. Bautista
allegedly answered angrily: "Na capture na nga, eh! Tama na nga yung PIN number [sic].
Hindi ako pwedeng hindi makakuha ng pera. Kailangan kong bumili ng gamot para sa anak
ko. Hindi ko naman kasalanan ito." Javelona replied: " Sir, hindi ho natin makukuha ang card
ninyo ngayon kasi ang makaka-open lang ho ng ATM machine ay ang o cer ng Kalayaan
Branch. Even if makuha natin ang card ninyo ngayon, hindi pa ninyo magagamit ngayon.
Magagamit lang ninyo as soon as mag-pa-encode kayo ng PIN number [sic]."
Bautista then reiterated angrily his dire need to withdraw money for the medicine of
his daughter. Javelona apologized to Bautista and informed him that there was really
nothing she could do at that time. She also advised Bautista to go back to the bank at 9:00
a.m. to get his ATM card and also to withdraw money over the counter. Bautista refused to
be pacified and started cursing so Javelona decided to hang up the phone. 2 1
Tan, the Assistant Manager of BPI Kalayaan, testi ed that when she reported for
work in the morning of 11 October 1996, she discovered that the ATM was out of order.
According to Tan, the ATM keyboard was not properly mounted and the keys were
damaged. Also, the telephone beside the ATM was hung up. Tan then called Peralta, the
technician, to have the ATM repaired. When Peralta opened the ATM, they found Bautista's
ATM card which was captured by the machine. 2 2
Peralta, a Customer Engineer Specialist, testi ed that on 11 October 1996, BPI
Kalayaan sought his assistance regarding their ATM. When Peralta arrived at BPI Kalayaan,
he talked to Tan and then proceeded to the ATM to assess the damage. According to
Peralta, the ATM keyboard was damaged and mis-aligned. 2 3
The Trial Court's Ruling
On 14 April 1999, the trial court rendered judgment, the dispositive portion of which
reads:
WHEREFORE, nding the accused guilty beyond reasonable doubt of the
crime of Homicide, the Court hereby sentences the accused to suffer the penalty
of imprisonment ranging from FOUR (4) YEARS and TWO (2) MONTHS of Prision
Correccional, as minimum, to EIGHT (8) YEARS and ONE (1) DAY of Pris[i]on
Mayor, as maximum; to pay indemnity to the heirs of Joselito Bautista for his
death in the amount of P75,000.00; and actual damages in the amount of
P111,324.00 for the nine-day wake, embalm[ing] and funeral services, and
P1,418,040.00 for the loss of Bautista's earning capacity, the last to be paid by
installment at least P3,030.00 a month until fully paid with the balance earning
interest at the rate of six percent (6%) per annum; and to pay the costs.
SO ORDERED. 2 4
The trial court held that the defense failed to establish self-defense as a justifying
circumstance. According to the trial court, unlawful aggression, which is the most
essential element to support the theory of self-defense, was lacking in this case. The trial
court found that, contrary to Manaban's claim, Bautista was not about to draw his gun to
shoot Manaban. Evidence show that Bautista's gun was still tucked in his waist inside a
locked holster. Furthermore, the trial court held that Bautista could not have surprised
Manaban with a preemptive attack because Manaban himself testi ed that he already had
his gun pointed at Bautista when they were facing each other. The trial court likewise
rejected Manaban's claim of exemption from criminal liability because he acted under the
impulse of an uncontrollable fear of an equal or greater injury. The trial court held that the
requisites for the exempting circumstance of uncontrollable fear under paragraph 6,
Article 12 of the Revised Penal Code are not present in this case. However, the trial court
credited Manaban with two mitigating circumstances: voluntary surrender and
obfuscation.
The Court of Appeals' Ruling
On appeal, the Court of Appeals a rmed the trial court's decision. The Court of
Appeals later reconsidered and modi ed its decision with respect only to the award of
loss of earning capacity. Using the formula 2/3 [80 — age at the time of death] x [gross
annual income — 80% gross annual income], the Court of Appeals recomputed the award
for loss of earning capacity. In its Resolution dated 8 November 2001, the Court of
Appeals reduced the award for the loss of the victim's earning capacity from P1,418,040
to P436,320.
The Issues
In his petition for review, Manaban submits that:
1. The Respondent Court gravely erred in a rming the erroneous factual
appreciation and interpretation by the trial court a quo in practically
a rming the decision of the latter court which are based on a clear
misappreciation of facts and ndings grounded entirely on speculations,
surmises or conjectures "in a way probably not in accord with law or with
the applicable jurisprudence of the Supreme Court."
2. The Respondent Court gravely erred in ignoring petitioner's self-defense on

the sole fact that the entrance of the deceased victim's wound was from
the back.
3. The Respondent Court gravely erred in concluding that petitioner failed to

establish unlawful aggression just because the holster of the victim was
still in a lock position.
4. Granting arguendo that petitioner made a mistake in his appreciation that

there was an attempt on the part of the deceased victim to draw his gun
who executed "bumalikwas," such mistake of fact is deemed justified.
5. Finally, the Respondent Court gravely erred in awarding exorbitant and

baseless award of damages to the heirs of deceased victim. 2 5
The Court's Ruling

The petition is partly meritorious. AacSTE
An appeal in a criminal case opens the entire case for review. The reviewing tribunal
can correct errors though unassigned in the appeal, or reverse the lower court's decision
on grounds other than those the parties raised as errors. 2 6
Unlawful Aggression is an Indispensable Requisite of Self-Defense

When the accused invokes self-defense, he in effect admits killing the victim and the
burden is shifted to him to prove that he killed the victim to save his life. 2 7 The accused
must establish by clear and convincing evidence that all the requisites of self-defense are
present. 2 8
Under paragraph 1, Article 11 of the Revised Penal Code, the three requisites to
prove self-defense as a justifying circumstance which may exempt an accused from
criminal liability are: (1) unlawful aggression on the part of the victim; (2) reasonable
necessity of the means employed to prevent or repel the aggression; and (3) lack of
su cient provocation on the part of the accused or the person defending himself. 2 9
Unlawful aggression is an indispensable requisite of self-defense. 3 0 Self-defense is
founded on the necessity on the part of the person being attacked to prevent or repel the
unlawful aggression. 3 1 Thus, without prior unlawful and unprovoked attack by the victim,
there can be no complete or incomplete self-defense. 3 2
Unlawful aggression is an actual physical assault or at least a threat to attack or
in ict physical injury upon a person. 3 3 A mere threatening or intimidating attitude is not
considered unlawful aggression, 3 4 unless the threat is offensive and menacing, manifestly
showing the wrongful intent to cause injury. 3 5 There must be an actual, sudden,
unexpected attack or imminent danger thereof, which puts the defendant's life in real peril.
36
In this case, there was no unlawful aggression on the part of the victim. First,
Bautista was shot at the back as evidenced by the point of entry of the bullet. Second,
when Bautista was shot, his gun was still inside a locked holster and tucked in his right
waist. Third, when Bautista turned his back at Manaban, Manaban was already pointing his
service rearm at Bautista. These circumstances clearly belie Manaban's claim of unlawful
aggression on Bautista's part. Manaban testified:
ATTY. ANCANAN
Q: You said the victim showed his gun by raising his shirt?
A: Yes, sir.
Q: The victim never drew his gun?

A: He was about to draw the gun when he turned around.
Q: My question is when the victim was facing you, the victim never
drew his gun?
A: Not yet, sir.

Q: And when you told the victim not to come close, he did not come closer
anymore?
A: He walked towards me, sir.
Q: For how many steps?

A: I cannot remember how many steps.
Q: And according to you, while he was facing you and walking

towards you he suddenly turned his back to you, is that correct?
A: Bumalikwas po at parang bubunot ng baril.
Q: Let us get the meaning of "bumalikwas", tumalikod sa iyo?
A: Bumalikwas po (witness demonstrating).
Q: Will you please demonstrate to us how the victim "bumalikwas"?

A: When he was facing me and I told him, "Sir, you just be there otherwise I
am going to take the gun" and at that moment, he, the victim turned his
back and simultaneously drew the gun.
Q: When he was facing you, the victim never drew his gun, is that correct?
A: Not yet, sir.
Q: And according to you, it was at that point when he turned his

back on you that he tried to draw his gun?
A: Yes, sir.
Q: You said that he tried to draw, but the fact is he merely placed
his hand on his waist?
A: No, sir, when I saw him, when he was hit, I saw him, the hand was
already on the gun but still tucked on his waist (witness places
his hand on his right waist with fingers open).
Q: And it was at that precise moment while the victim's back was
turned on you that you fired your shot?
A: When he was about to turn his back and it seems about to take
his gun, that is the time I shot him because of my fear that he
would be ahead in pulling his gun and he might kill me.
Q: When you said, when you red your shot, the victim's gun was
still tucked in his right waist, is that correct?
A: Yes, sir, his hand was on his waist.
Q: You just answer the question. Was the victim's gun still tucked
on his waistline?
A: Yes, sir.
Q: And his hand was merely placed on his hips. The victim's right hand was
merely placed on his right hip?
ATTY. CARAANG
I object. The witness testified that he was about to draw his gun.
COURT
He is asking the question so he has to answer.
A: No, sir, the gun was on his waist. CADHcI
ATTY. ANCANAN
Q: At the precise time that you red your second shot, you could
have aimed your gun at the extremities of the victim, meaning
legs or arms, is that correct?
A: When I saw him that he was about to draw his gun because of
my fear that he would get ahead of me and he would kill me, I did
not mind anymore, I just inunahan ko siya.
ATTY. CARAANG
May I request that the answer of the witness be quoted as is?
A: Noong makita ko siya na pabalikwas siya, na sabay bubunot ng

baril, sa takot ko na baka maunahan niya ako at mapatay, doon
ko na rin nakalabit yung gatilyo ng baril ko.
ATTY. ANCANAN
Q: Mr. Witness, how long have you been a security guard before this incident?
A: Around 7 months, sir.
Q: Now, before you were employed as security guard by the Eagle

Star Security Agency, did you undergo any training as a security
guard?
A: Yes, sir.
Q: Where?
A: Camp Crame, sir.
Q: For how long?
A: Three (3) days, sir.
Q: And what did you learn from those 3 days training as security guard?
A: Our duties as security guard were lectured to us, sir.

Q: Now, were you not taught during the training that in any given
situation, your first duty is to disable first an aggressor?
ATTY. CARAANG
Objection, your Honor, I think that is no longer material besides,

that is not part of my direct examination.
COURT
Witness may answer.
A: It was taught to us, sir, but it depends on my situation. If the

person kept on doing what I told him not to do and it would reach
a point that it would endanger my life, of course even if you were
in my place, you would do the same thing, so nakipagsabayan na
ako, sir.
Q: But in this particular case when you red your second shot, the victim's
back was towards you, is that not correct?
ATTY. CARAANG
Objection, already answered, your Honor.
COURT
Witness may answer.
A: No, sir, I shot him only once, not twice.
Q: Please answer the question. When you red your second shot . . .
A: Bumalikwas ho 'yon eh.

Q: Please answer the question.
A: Yes, sir.
Q: And because his back was towards you, you could have easily
disabled him by ring at his leg or at his arms, is that not
correct?
ATTY. CARAANG
I object, your Honor, it was already answered. He said he was not given the
opportunity to have a second thought and at that moment he was able to
pull the trigger of his gun.
ATTY. ANCANAN
The witness already admitted that when he fired his gun, the victim's back
was towards the witness, so my last question is just a follow-up.
ATTY. CARAANG
But the witness testified that he was not given the opportunity to have a
second thought, that is why right then and there, he pulled the trigger of his
gun.
COURT
Objection noted, witness may answer.
A: What I was thinking at that time, was just to disarm him but
when he turned, bumalikwas, and I saw that he was going to draw
a firearm and that was when I decided to "makipagsabayan."
xxx xxx xxx
RE-DIRECT EXAMINATION
ATTY. CARAANG
Q: Mr. Witness, when you and the victim were facing each other, the
gun was already pointed to him, is it not? Your gun?
A: Yes, sir, I pointed my gun at him. 3 7
The allegation of Manaban that Bautista was about to draw his gun when he turned
his back at Manaban is mere speculation. Besides, Manaban was already aiming his
loaded rearm at Bautista when the latter turned his back. In that situation, it was Bautista
whose life was in danger considering that Manaban, who had already red a warning shot,
was pointing his rearm at Bautista. Bautista, who was a policeman, would have realized
this danger to his life and would not have attempted to draw his gun which was still inside
a locked holster tucked in his waist. Furthermore, if Manaban really feared that Bautista
was about to draw his gun to shoot him, Manaban could have easily disabled Bautista by
shooting his arm or leg considering that Manaban's rearm was already aimed at Bautista.
HITAEC
Aggression presupposes that the person attacked must face a real threat to his life
and the peril sought to be avoided is imminent and actual, not imaginary. 3 8 Absent such
actual or imminent peril to one's life or limb, there is nothing to repel and there is no
justification for taking the life or inflicting injuries on another. 3 9
Voluntary Surrender and Obfuscation
The trial court credited Manaban with two mitigating circumstances: voluntary
surrender and obfuscation.
It is undisputed that Manaban called the police to report the shooting incident. When
the police arrived, Manaban surrendered his service rearm and voluntarily went with the
police to the police station for investigation. Thus, Manaban is entitled to the bene t of the
mitigating circumstance of voluntary surrender.
On obfuscation, we nd that the facts of the case do not entitle Manaban to such
mitigating circumstance. Under paragraph 6, Article 13 of the Revised Penal Code, the
mitigating circumstance of passion and obfuscation is appreciated where the accused
acted upon an impulse so powerful as naturally to have produced passion or obfuscation.
The requisites of the mitigating circumstance of passion or obfuscation are: (1) that there
should be an act both unlawful and su cient to produce such condition of mind; and (2)
that the act which produced the obfuscation was not far removed from the commission of
the crime by a considerable length of time, during which the perpetrator might recover his
normal equanimity. 4 0
In his testimony, Manaban admitted shooting Bautista because Bautista turned
around and was allegedly about to draw his gun to shoot Manaban. The act of Bautista in
turning around is not unlawful and su cient cause for Manaban to lose his reason and
shoot Bautista. That Manaban interpreted such act of Bautista as preparatory to drawing
his gun to shoot Manaban does not make Bautista's act unlawful. The threat was only in
the mind of Manaban and is mere speculation which is not su cient to produce
obfuscation which is mitigating. 4 1 Besides, the threat or danger was not grave or serious
considering that Manaban had the advantage over Bautista because Manaban was already
pointing his rearm at Bautista when the latter turned his back. The defense failed to
establish by clear and convincing evidence the cause that allegedly produced obfuscation.
Award of Damages
The records 4 2 reveal that Bautista was 36 years old at the time of his death and not
26 years old as stated by the trial court and the Court of Appeals. 4 3 Moreover, the annual
salary of Bautista at the time of his death was already P60,864 and not P60,600. 4 4 We
likewise modify the formula applied by the Court of Appeals in the computation of the
award for loss of earning capacity. In accordance with current jurisprudence, 4 5 the
formula for the indemnification for loss of earning capacity is:
Net Earning = Life Expectancy x [Gross Annual — Living Expenses]
Capacity Income (GAI)
= 2/3(80 – age of deceased) x (GAI – 50% of GAI)
Using this formula, the indemnification for loss of earning capacity should be:
Net Earning Capacity = 2/3 (80 – 36) x [P60,864 – (50% x P60,864)]
= 29.33 x P30,432
= P892,570.56
With regard to actual damages, the records show that not all the expenses that the
Bautista family allegedly incurred were supported by competent evidence. Editha failed to
present receipts or any other competent proof for food expenses and rental fee for jeeps
for the funeral. Editha merely submitted a typewritten "Summary of Food Expenses &
Others." 4 6 A mere list of expenses, without any o cial receipts or any other evidence
obtainable, does not to prove actual expenses incurred. 4 7 Competent proof of the actual
expenses must be presented to justify an award for actual damages. 4 8 In this case, only
the following expenses were duly supported by official receipts and other proof:
1. Embalming fee 4 9 P11,000
2. Bronze Casket 5 0 25,000
3. Cadillac Hearse fee 5 1 3,500
4. Funeral Services 5 2 30,000
———–
Total P69,500
======
Thus, we reduce the actual damages granted from P111,324 to P69,500.

We likewise reduce the indemnity for death from P75,000 to P50,000 in accordance
with prevailing jurisprudence. 5 3
WHEREFORE, we AFFIRM with MODIFICATION the Decision of the Court of Appeals
dated 21 May 2001 and its Resolution dated 8 November 2001. We nd petitioner
Ramonito Manaban guilty beyond reasonable doubt of the crime of Homicide. Applying the
Indeterminate Sentence Law and taking into account the mitigating circumstance of
voluntary surrender, Ramonito Manaban is hereby sentenced to suffer an indeterminate
penalty ranging from six years and one day of prision mayor as minimum to 12 years and
one day of reclusion temporal as maximum. Ramonito Manaban is ordered to pay the heirs
of Joselito Bautista: P892,570.56 as indemnity for loss of earning capacity; P69,500 as
actual damages; and P50,000 as indemnity for death.
SO ORDERED.
Quisumbing, Carpio Morales, Tinga and Velasco, Jr., JJ., concur.
Footnotes
1. Under Rule 45 of the 1997 Rules of Civil Procedure.

2. Penned by Associate Justice Portia Aliño-Hormachuelos, with Associate Justices Fermin
A. Martin, Jr. and Mercedes Gozo-Dadole, concurring.
3. Penned by Associate Justice Portia Aliño-Hormachuelos, with Associate Justices Martin

S. Villarama, Jr. and Mercedes Gozo-Dadole, concurring.
4. Rollo, p. 47.
5. CA rollo, p. 12; Records, p. 1.
6. The trial court Decision erroneously stated that the arraignment was on 5 December
1996. However, the Certificate of Arraignment, Minutes, and Order of the trial court show
that Manaban was arraigned on 4 December 1996. Records, pp. 28-30.
7. TSN, 27 January 1998.
8. Rollo, pp. 48-49; TSN, 5 and 19 May 1997.

9. TSN, 7 August 1997.
10. TSN, 13 November 1997.

11. Exh. "X," records, p. 173.
12. Exh. "Y," records, p. 174.
13. Records, p. 167.

14. This was the service firearm confiscated from Manaban.
15. FID Report No. 603-11-1096, dated 15 October 1996. Records, pp. 167-168.
16. Editha submitted a list of expenses incurred with a total of P111,324. Exh. "LL," records,
p. 187.
17. See Exhs. "II," "JJ," "KK," and "LL," records, pp. 184-187.
18. TSN, 10 June 1997, pp. 44-46. See certification letter of Tan and Piñano, dated 14
October 1996, addressed to the State Investigation and Intelligence Division of the
Philippine National Police in Quezon City, records, p. 164.
19. TSN, 29 July 1998, pp. 5-24.
20. Id. at 25-42.

21. TSN, 14 October 1998.
22. TSN, 18 November 1998.
23. TSN, 21 October 1998.

24. Rollo, p. 56. Records, p. 319.
25. Rollo, pp. 11-12.
26. People v. Jubail, G.R. No. 143718, 19 May 2004, 428 SCRA 478.
27. Senoja v. People, G.R. No. 160341, 19 October 2004, 440 SCRA 695; People v. Gadia,
418 Phil. 30 (2001).
28. People v. Gallego, 453 Phil. 825 (2003).
29. Catalina Security Agency v. Gonzales-Decano, G.R. No. 149039, 27 May 2004, 429
SCRA 628; People v. Pansensoy, 437 Phil. 499 (2002).
30. People v. Gallego, supra note 28.
31. People v. Gadia, 418 Phil. 30 (2001).
32. People v. Gallego, supra.
33. People v. Catbagan, G.R. Nos. 149430-32, 23 February 2004, 423 SCRA 535.
34. Toledo v. People, G.R. No. 158057, 24 September 2004, 439 SCRA 94.
35. People v. Catbagan, supra.
36. Cabuslay v. People, G.R. No. 129875, 30 September 2005, 471 SCRA 241; People v.
Escarlos, G.R. No. 148912, 10 September 2003, 410 SCRA 463; Roca v. Court of Appeals,
G.R. No. 114917, 29 January 2001, 350 SCRA 414.
37. TSN, 29 July 1998, pp. 28-41, 46 (Emphasis supplied).

38. People v. Damitan, 423 Phil. 113 (2001).
39. Senoja v. People, supra note 27.
40. People v. Pansensoy, supra note 29.
41. People v. Malejana, G.R. No. 145002, 24 January 2006.
42. See Certificate of Identification of Dead Body (Exh. "U"), records, p. 196; Certificate of
Post-Mortem Examination (Exh. "X"), records, p. 199; Autopsy Report No. N-96-2047 (Exh.
"Y"), records, p. 200.
43. It was the accused, Ramonito Manaban, who was 26 years old at the time of the
shooting incident.
44. See Service Record of Bautista (Exh. "HH"), records, p. 183. The mistake may be due to
the testimony of Editha that Bautista was receiving a monthly salary of P5,050 (or an
annual salary of P60,600) at the time of his death.
45. Pleyto v. Lomboy, G.R. No. 148737, 16 June 2004, 432 SCRA 329; People v. Agudez,
G.R. Nos. 138386-87, 20 May 2004, 428 SCRA 692; Tugade, Sr. v. Court of Appeals, 455
Phil. 258 (2003).
46. Exh. "LL," records, p. 187.
47. See People v. Agudez, supra.

48. Pleyto v. Lomboy, supra.
49. Exh. "II," records, p. 184.
50. Exh. "JJ," records, p. 185.
51. Id.
52. Exh. "KK," records, p. 186.
53. People v. Quirol, G.R. No. 149259, 20 October 2005, 473 SCRA 509; People v. Catbagan,
supra note 33; People v. Daniela, 449 Phil. 547 (2003); People v. Escote, Jr., 448 Phil. 749
(2003); People v. Dungca, 428 Phil. 682 (2002).

SECOND DIVISION
[G.R. No. 160341. October 19, 2004.]
SENOJA petitioner, vs . PEOPLE OF THE PHILIPPINES,

EXEQUIEL SENOJA, PHILIPPINES
respondent.
DECISION
CALLEJO, SR., J : p
Before us is a petition for review on certiorari of the Decision 1 of the Court of

Appeals (CA) in People v. Exequiel Senoja , docketed as CA-G.R. CR No. 26564, a rming
with modi cation the Decision 2 of the Regional Trial Court (RTC) of Baler, Aurora, Branch
96, in Criminal Case No. 2259, for homicide.
The Case for the People
As culled by the O ce of the Solicitor General (OSG) in its comment on the petition,
the case stemmed from the following:
1. On April 16, 1997, petitioner Exequiel Senoja, Fidel Senoja, Jose
Calica, and Miguel Lumasac were drinking gin in the hut of Crisanto Reguyal in
Barangay Zarah, San Luis, Aurora. An angry Leon Lumasac suddenly arrived at
the said place, holding a bolo in his right hand and looking for his brother Miguel.
Petitioner and Jose tried to pacify Leon. But when petitioner approached Leon, the
latter tried to hack him so he embraced Leon and Jose took Leon's bolo. Then,
Leon and petitioner talked things out and later reconciled (pp. 2–4, TSN,
November 16, 1998; pp. 2–4, TSN, August 30, 2002; p. 2, TSN, April 21, 1998; p. 5,
TSN, March 14, 2001; p. 2, CA Decision).
2. Subsequently, Leon walked out of Crisanto's hut followed by
petitioner. Suddenly, about ten meters from the hut, petitioner stabbed Leon at the
back. When Leon turned around, petitioner continued stabbing him until he fell to
the ground. Then, petitioner ran towards the barangay road and threw away the
"kolonial" knife he used in stabbing Leon. The latter died on the spot (pp. 2–6,
TSN, November 22, 2000; p. 5, TSN, August 30, 2002; p. 3, CA Decision).
3. Dr. Pura Deveza Valenzuela-Uy, San Luis Municipal Health O cer,
examined the cadaver of Leon and found multiple lesions on his body and ve
fatal wounds on his chest. Dr. Uy issued a medico-legal report and death
certi cate (Exhibits A and B, pp. 13–14, Records; pp. 3–5, TSN, November 20,
1997). 3
On August 13, 1997, an Information was led charging petitioner Exequiel Senoja
with homicide, the accusatory portion of which reads:
That on April 16, 1997 at around 11 o'clock in the morning in Barangay
Zarah, San Luis, Aurora, Philippines, and within the jurisdiction of this Honorable
Court, the said accused, did then and there, willfully, unlawfully, and feloniously,
with intent to kill, attack, assault, and use personal violence upon the person of
one Leon Lumasac by then and there stabbing him with a bladed weapon locally
known as "kolonyal" at the different parts of his body thereby in icting upon the
latter mortal stab wounds which were the direct and immediate cause of his
death thereafter. aSADIC
CONTRARY TO LAW. 4
The petitioner admitted killing the victim but invoked the a rmative defense of self-
defense. His version of the fatal incident is set forth in his petition at bar:
1. On April 16, 1997 at about 11 o'clock in the morning, Crisanto
Reguyal, Fidel Senoja, Jose Calica, Miguel Lumasac, and Exequiel Senoja were in
the hut of Crisanto Reguyal in Barangay Zarah, San Luis, Aurora, drinking gin;
2. Leon Lumasac suddenly arrived holding a bolo and hacked the

doorpost of Crisanto's hut, angrily demanding for his brother, Miguel Lumasac,
whom he suspected of drying up the ricefield he was plowing;
3. At this time, Miguel Lumasac was no longer inside the hut but
fetching water;
4. To prevent Leon Lumasac from entering the hut, Exequiel Senoja
(appellant) and Jose Calica stood by the door while simultaneously trying to
pacify Leon Lumasac;
5. Exequiel Senoja with a knife then went outside and tried to pacify
Leon Lumasac but the latter angered by the gestures of the former tried to hack
Exequiel Senoja;
6. To avoid any injury, Exequiel Senoja embraced Leon which gave an

opportunity to disarm the duo. Jose Calica got the bolo of Leon and threw it away
while Fidel Senoja took the "colonial" knife of Exequiel;
7. Jose Calica and Fidel Senoja were able to pacify Leon Lumasac so
they invited him to get inside the hut. Inside the hut, Leon Lumasac tried to box
Fidel Senoja for siding with his brother, Miguel, but was prevented by Exequiel
Senoja who held Leon's hands;
8. After a while, Leon Lumasac left but returned and angrily demanded
for his bolo. Jose Calica gave his own bolo with a sabbard to replace the bolo of
Leon which he threw away;
9. With Jose Calica's bolo in him, Leon Lumasac left but only after
leaving a threat that something will happen to Exequiel Senoja for siding with his
brother;
10. After walking for about 10 meters away from the hut, Leon
Lumasac turned around and saw Exequiel Senoja on his way home following
him;
11. Leon Lumasac walked back to meet Exequiel Senoja and upon
reaching him, the former suddenly and treacherously hacked the latter at the left
side of his head and right thigh;
12. Unable to evade the treacherous attack by Leon Lumasac who

persisted in his criminal design, Exequiel Senoja drew his "colonial" knife and
stabbed Leon Lumasac in self-defense, in icting upon him multiple wounds
which caused his death. 5

On June 7, 2002, the trial court rendered judgment against the petitioner, nding him
guilty beyond reasonable doubt of the crime charged. The fallo of the decision reads:
WHEREFORE, premises considered, this Court nds accused Exequiel
Senoja GUILTY beyond reasonable doubt of the crime of Homicide for the death
of victim Leon Lumasac and hereby sentences him, applying Article 64,
paragraph 1 of the Revised Penal Code and Section 1 of the Indeterminate
Sentence Law, (a) to suffer the penalty of twelve (12) years of prision mayor as
minimum to seventeen (17) years and four (4) months of reclusion temporal as
maximum; (b) to pay the heirs of the victim the amount of Fifteen (sic) Thousand
Pesos (Php 50,000.00) by way of civil indemnity; and (c) to pay the costs.
SO ORDERED. 6
In due course, the petitioner appealed the decision to the CA which rendered
judgment a rming, with modi cation, the decision of the RTC. The petitioner now seeks
relief from this Court, contending that:
The Honorable Court of Appeals failed to appreciate vital facts which, if
considered, would probably alter the result of this case on appeal nding
appellant's plea of self-defense credible. 7
The petitioner faults the CA for its analysis of his testimony, as follows:
The injuries suffered by the petitioner at the left side of his head and right
thigh was con rmed by Dr. Rodolfo Eligio in open court. The relative positions of
the wounds clearly show that the drunken Leon Lumasac brandished and
executed several hacking blows against Exequiel Senoja before he was stabbed,
neutralized and nished by the latter. It would be physically and highly
improbable for the victim if he was treacherously hit at the left buttock and as he
turned around to face the petitioner, the latter stabbed him successively and
without let-up hitting him 9 times resulting in 9 fatal wounds. This did not give a
chance to the victim to retaliate and in ict those wounds upon the aggressor. The
victim used Mr. Jose Calica's bolo which was secured by its scabbard. Unless
earlier drawn, it would be impossible for the victim to use it in defending himself
from the surprise attack and stabbing at a lightning fashion in icting nine (9)
fatal wounds. Time element was the essence of this encounter which, as narrated
by the Honorable Court, after the assailant poked the victim at the left side of the
buttock with the use of the "colonial" knife he stabbed him successively until he
fell down dead. Under these circumstances, how could Exequiel Senoja suffered
(sic) those hacking (sic) wounds in icted by the victim using Calica's bolo? In all
indications, it was Leon Lumasac who attacked his adversary rst but lost in the
duel considering that he was older than Exequiel Senoja and drunk. Clearly,
therefore, it was Leon Lumasac who was the aggressor both in the rst and
second phases of the incident and Exequiel Senoja was compelled to defend
himself. DIETHS
A closer scrutiny of the attending circumstances which resulted in this

stabbing incident shows that Exequiel Senoja has no compelling reasons to kill
his godfather. On that same occasion, Mr. Exequiel Senoja was with the brother
of the victim, Miguel Lumasac, which only shows that there was no pre-existing
grudge between these families. And still, what titillates our imagination is the fact
that Miguel Lumasac, who was then with the group drinking gin at the hut of
Crisanto Reguyal did not clearly impute this crime to petitioner. On the contrary,
when he was presented to the witness stand, he was very evasive in answering
the questions profounded by the prosecutors if he wanted the petitioner to be
imprisoned. Miguel Lumasac could have told the real truth that Senoja murdered
his brother. 8
The CA declared that, based on the evidence on record:

As seen from appellant's testimony, Leon Lumasac's actions can be
divided into two (2) phases: the rst phase, when Leon entered Crisanto Reguyal's
hut, up to the time he and the appellant reconciled. The second phase was when
Leon left to go home. In phase one where Leon entered Reguyal's hut, Leon was
the aggressor but his aggression was mostly directed to his brother Miguel who
was not inside the hut anymore, although it was also partly directed at the
appellant and even at Fidel Soneja (sic). But Leon's aggression against the
appellant and Fidel Senoja ceased since, as appellant testi ed, when Leon tried to
box Fidel Senoja and he (appellant) told Leon "Huwag po, Huwag po," Leon was
pacified.
In the second phase, when Leon left the hut to go home, his aggression
had already ceased.
It is uncontroverted that the appellant followed the victim when the latter
went out of the hut to go home. Appellant's testimony is that when he was two
meters outside the hut, Leon turned around to face him saying "if you're not only
my godson" in a threatening way, then approached and hacked him (with Calica's
bolo) in icting wounds on the left side of his head and his right thigh, thus, he
(appellant) attacked the victim with the kolonial knife he was holding. That
appellant suffered such injuries was corroborated by the testimony of Dr. Rodolfo
Eligio. 9
The petition is denied.

Paragraph 1, Article 11, of the Revised Penal Code provides:
ART. 11. Justifying circumstances. — The following do not incur any
criminal liability:
1. Anyone who acts in defense of his person or rights, provided that

the following circumstances concur;
First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel
it;
Third. Lack of su cient provocation on the part of the person defending
himself.
The a rmative defense of self-defense may be complete or incomplete. It is

complete when all the three essential requisites are present; it is incomplete if only
unlawful aggression on the part of the victim and any of the two essential requisites were
present. In ne, unlawful aggression on the part of the victim is a condition sine qua non to
self-defense, complete or incomplete. Whether or not the accused acted in self-defense is
a question of fact. Like alibi, the a rmative defense of self-defense is inherently weak
because, as experience has demonstrated, it is easy to fabricate and di cult to disprove.
10
The right of self-defense proceeds from necessity and limited by it. The right begins
where necessity does, and ends where it ends. 1 1 There is, however, a perceptible
difference between necessity and self-defense, which is that, self-defense excuses the
repulse of a wrong; necessity justi es the invasion of a right. Hence, it is essential to self-
defense that it should be a defense against a present unlawful attack. 1 2
Life can be taken under the plea of necessity, when necessary for the preservation of
the life on the party setting up the plea. Self-defense is an act to save life; hence, it is right
and not a crime. 1 3 There is a need for one, indeed, for it is a natural right for one to defend
oneself when confronted by an unlawful aggression by another. It is a settled rule that to
constitute aggression, the person attacked must be confronted by a real threat on his life
and limb; and the peril sought to be avoided is imminent and actual, not merely imaginary.
Absent such an actual or imminent peril to one's life or limb, there is nothing to repel; there
is no necessity to take the life or inflict injuries on another. 1 4
But then what is the standard to use to determine whether the person defending
himself is confronted by a real and imminent peril to his life or limb? We rule that the test
should be: does the person invoking the defense believe, in due exercise of his reason, his
life or limb is in danger? After all, the rule of law founded on justice and reason: Actus no
facit remin, nisi mens sit rea. Hence, the guilt of the accused must depend upon the
circumstances as they reasonably appear to him. 1 5
Unlawful aggression presupposes an actual, sudden, unexpected attack or imminent
danger thereof, not merely a threatening or intimidating attitude. 1 6 Hence, when an
inceptual/unlawful aggression ceases to exist, the one making a defense has no right to
kill or injure the former aggressor. 1 7 After the danger has passed, one is not justi ed in
following up his adversary to take his life. The con ict for blood should be avoided if
possible. 1 8 An assault on his person, he cannot punish when the danger or peril is over.
When the danger is over, the right of self-defense ceases. His right is defense, not
retribution. 1 9
When the accused offers the a rmative defense of self-defense, he thereby admits
killing the victim or in icting injuries on him. The burden of evidence is shifted on the
accused to prove, with clear and convincing evidence, that he killed the victim or in icted
injuries on him to defend himself. The accused must rely on the strength of his own
evidence and not on the weakness of that of the prosecution because if the evidence of
the prosecution were weak, the accused can no longer be acquitted. 2 0
We agree with the CA that, as gleaned, even from the testimony of the petitioner,
there were two separate but interrelated incidents that culminated in the petitioner's
stabbing and killing of the victim Leon Lumasac. The rst was the arrival of the victim, who
was armed with a bolo, in the hut of Crisanto Reguyal, looking for his brother Miguel
Lumasac, whom he was angry at. The victim hacked the wall of the house in anger. The
petitioner, who was armed with a knife, tried to pacify the victim. The victim attempted to
hack the petitioner; nevertheless, the latter embraced and managed to pacify the victim.
Forthwith, Jose Calica took the bolo of the victim and threw it away. For his part, Fidel
Senoja took the petitioner's knife. As it was, the victim was already paci ed. He and the
petitioner were already reconciled. 2 1 Fidel even gave back the knife to the petitioner. TECIaH
The second incident took place when the victim demanded that Calica return his
bolo as he wanted to go home already. Because he had thrown away the victim's bolo,
Calica was, thus, impelled to give his own. The victim then warned the petitioner three
times, "May mangyayari sa iyo, kung hindi ngayon, bukas," and left the hut. When the victim
had already gone about ten meters from the hut, the petitioner followed the victim. The
victim turned around and told the petitioner, " Kung hindi lang kita inaanak." The victim then
hacked the petitioner, hitting the latter on the left side of his head and thigh. Believing that
the victim would attack him anew, the petitioner stabbed the victim frontally several times.
2 2 He also stabbed the victim on the left buttock. The petitioner could not recall how many
times he stabbed the victim and what parts of the latter's body had been hit.
The rst episode inside the hut had been completed with the protagonist, the victim,
and the petitioner reconciled. The second episode commenced inside the hut and
continued outside, and ended with the petitioner stabbing the victim several times.
The trial and the appellate courts gave no credence and probative weight to the
testimony of the petitioner. So do we.
First. The ndings of fact of the trial court and its conclusions based on the said
ndings are accorded by this Court high respect, if not conclusive effect, especially when
a rmed by the CA. This is because of the unique advantage of the trial court of having
been able to observe, at close range, the demeanor and behavior of the witnesses as they
testify. This rule, however, is inapplicable if the trial court ignored, overlooked, or
misinterpreted cogent facts and circumstances which, if considered, will alter or reverse
the outcome of the case. We have reviewed the records and found no justi cation for a
reversal of the findings of the trial court and its conclusions based thereon.
Second. The victim sustained six hack wounds and one lacerated wound. This is
gleaned from the Necropsy Report of Dr. Pura Uy, to wit:
FINDINGS: The victim lies in supine position, stocky in built; his clothing
completely soaked with fresh blood.
CHEST:
(+) stab wound 2 inches below the L nipple 4 inches deep running medially to
the anterior median line.
(+) stab wound 2 inches to the L of the anterior median line at the level of the
L nipple 5 1/2 inches deep running posteriorly.
(+) stab wound 1 inch above the L nipple 4 inches deep running
inferomedially.
(+) stab wound 2 inches to the left of the anterior median line 4 inches deep
running inferoposteriorly.
(+) stab wound 1 inch to the right of the anterior median line at the level of
the second right intercostal space 0.5 inch in depth.
(+) stab wound 1/2 inch to the right of the anterior median line at the level of
the xyphoid process 3 1/2 inches deep running superiorly.
(+) stab wound at the level of the L nipple L anterior axillary line 4 1/2 inches
in depth running superiorly to the left armpit.
(+) hack wound at the left armpit 3 inches long injuring the muscles and the
blood vessels. cHCaIE
(+) lacerated wound on the left palm almost cutting off the proximal phalanx
of the left thumb. 2 3
Five of the wounds of the victim on his chest were fatal. 2 4 The victim also sustained
a stab wound on the left buttock. According to the doctor, it was unlikely for the victim to
have survived even with medical attention. 2 5 After the doctor made her initial autopsy and
submitted her report, she noted that the victim sustained a stab wound of about two
inches deep at the left buttock, thus:
Q In this medico-legal report, you indicated that the cause of death of the
victim is "Hypovolemic shock 2° to multiple stab wounds, chest." Will you
please explain this?
A "Ito pong nakalagay o dahilan ng pagkamatay ng biktima sa sobrang
natapon na dugo gawa ng maraming saksak na tinamo ng biktima sa
kanyang dibdib ang nagbigay ng daan sa kanyang kamatayan."
Q Will you please tell us, Dr. Uy, if there is one amont ( sic) these lesions that
is located at the back of the victim?
A I forgot to tell you that a day after I submitted the report, the funeral parlor
which attended the victim has called my attention because of the wound at
the back of the victim and I attended immediately to see these lesions at
the home of the victim. I reviewed for (sic) these lesions and I saw one
lesion located at the left buttock of the victim.
Q What is the nature of the injury?
A Stab wound, about two inches deep.
Q By the nature of the lesion, is it not fatal?

A It is not that fatal.
Q In your expert opinion, by the nature of the wound sustained by the victim,
what could have been the relative position of the victim in relation to his
assailant?
A Based on my examination, I think the victim and the assailant were facing
each other. "Masyadong malapit."
Q How many fatal wounds have (sic) the victim sustained in his chest?
A Five fatal stab wounds on the chest. 2 6
Considering the number, nature and location of the wounds sustained by the victim,
the petitioner's plea of self-defense is incredible. 2 7 It bears stressing that the petitioner
resolutely denied stabbing the victim at the buttock and insisted that he stabbed the
victim frontally:
Q As a matter of fact, he sustained an injury at the back of his buttock (pigi)

and when he faced you, you stabbed him again several times?
A That is not true, Sir. cIHDaE
Q But you are admitting that you stabbed him several times frontally?
A Yes, Sir, because I am (sic) defending myself.
Q You also stabbed him in his left armpit?

A I don't know, Sir.
Q But you knew that you stabbed him in his buttock?
A No, Sir.
Q After stabbing him several times and felt that he was already dead, you
already left the place?
A Yes, Sir. 2 8
The testimony of the petitioner is belied by the physical evidence on record. The
settled rule is that physical evidence is evidence of the highest order; it speaks more
eloquently than a hundred witnesses. 2 9
Third. The petitioner threw away his knife and failed to surrender it to the policemen;
neither did he inform the policemen that he killed the victim in self-defense. The
petitioner's claim that the victim was armed with a bolo is hard to believe because he even
failed to surrender the bolo. 3 0
Fourth. The petitioner's version of the events that transpired immediately before he
stabbed the victim does not inspire belief. He claims that when he saw the victim emerged
from the hut, the victim walked towards the petitioner saying, "Kung hindi lang kita
inaanak," but hit and hacked the latter on the left buttock. 3 1 As gleaned from his
statement, the victim was not disposed, much less determined to assault the petitioner.
And yet, the petitioner insists that without much ado, the victim, nevertheless, hit him on
the head and on the thigh with his bolo.
Fifth. According to the petitioner, the victim warned him three times before leaving
the hut, "May mangyayari sa iyo, kung hindi ngayon, bukas." The petitioner testi ed that
shortly before the victim uttered these words, the latter even touched the blade of the bolo
to see if it was sharp. 3 2 The petitioner was, thus, aware of the peril to his life if he followed
the victim. The petitioner, nevertheless, followed the victim and left the hut after the victim
had gone barely ten meters. He should have waited until after the victim had already gone
far from the hut before going home to avoid any untoward incident.
Sixth. The petitioner presented his brother-in-law Ruben Dulay to corroborate his
testimony that the victim stabbed the petitioner and that this impelled the latter to stab
the former. But the testimony of Dulay contradicted the testimony of the petitioner:
Q When Exequiel Senoja stabbed Leon Lumasac several times, he
immediately fell to the ground and was fatal[ly] wounded, immediately
died because of several stabs and lay (sic) down?
A I did not see that scene because Exequiel Senoja stabbed Leon Lumasac, I
turn (sic) back upon seeing Leon Lumasac hack Exequiel Senoja, I turn
(sic) back because I was afraid then. When I turn (sic) back I saw them
embracing each other, Sir.
Q And that is the time when Exequiel Senoja stabbed Leon Lumasac?
A I did not see the stabbing. What I only saw was that they were embracing
each other, Sir.cDIHES
Q So you are now changing your answer, you actually saw Exequiel Senoja
stabbing Leon Lumasac several times, after he was hack[ed] by Leon
Lumasac?
A I did not see that Exequiel Senoja stab Leon Lumasac, Sir. 3 3
Seventh. The bare fact that the petitioner sustained a ve-centimeter wound at the
left temporal region and an eight-centimeter hack wound on the anterior portion of his
right thigh does not preclude the fact that he was the unlawful aggressor; nor buttress his
plea that he acted in self-defense. The petitioner failed to inform the doctor that he
sustained the wounds to defend himself. Moreover, the doctor testi ed that the wounds
the petitioner sustained were slight:
Pros. Ronquillo:
Q Does (sic) the wound at the right anterior thigh vertical, diagonal or what?
A I did not place it, Sir.

Q So, you don't know?
A It is vertical, Sir, but I did not place it on the record. And the hack wound on
the temporal region is oblique.
Q Were the injuries only slight?

A Yes, Sir.
Q So, it is (sic) possible that these injuries were self-inflicted?
A Probably, Sir, but I cannot comment on that.
Q You said that the patient was under the in uence of alcohol? Would you
say that the patient was then so drunk at that time?
A When I saw him at that time, he was moderately drunk. 3 4
The doctor gave the petitioner due medications for 30 minutes and the petitioner
then went home:
Q How did it happen that you were able to kill the victim in this case Mr. Leon
Lumasac?
A Because when I went out, he hacked me, Sir.
Q Were you hit by the hack made by the victim in this case?
A Yes, Sir.
Q Where?
A Here, Sir.
And Witness is pointing to his left head.
Q Where else?
A (His) right thigh. CIAacS
Q In what place did this incident happen?
A In the hut of Tata Santos, Sir.

Q What is his real name?
A Crisanto Reguyal, Sir. 3 5
If, as claimed by the petitioner, the victim stabbed him frontally, it is incredible that
the victim was able to hack the anterior part of his right thigh.
Eighth. The testimony of the petitioner that the victim stabbed him outside the hut
on the left side of his head and the anterior portion of his right thigh is belied by his
testimony on direct examination that the victim stabbed him while still inside the hut of
Reguyal:
Q How did it happen that you were able to kill the victim in this case Mr. Leon
Lumasac?
A Because when I went out, he hacked me, Sir.
Q Were you hit by the hack made by the victim in this case?
A Yes, Sir.
Q Where?
A Here, Sir.
And Witness is pointing to his left head.
Q Where else?
A (His) right thigh.

Q In what place did this incident happen?
A In the hut of Tata Santos, Sir.
Q What is his real name?
A Crisanto Reguyal, Sir. 3 6
But then, after the said incident, the petitioner and the victim had reconciled. We
agree with the following findings of the appellate court:
The question that must be resolved is whether or not the victim was the
unlawful aggressor as the appellant's testimony pictures him to be. The Court
rules in the negative. The victim had already left the hut and was ten (10) meters
away from it. There is no showing that the victim, who was drunk, was aware that
appellant was following him, or that the appellant called out to him so that he (the
victim) had to turn around and notice him. It is clear that at that point in time, the
victim was simply walking toward his home; he had stopped being an aggressor.
It was the appellant who, smarting from the earlier incident in the hut where Leon
told him "hindi ka tatagal, sa loob ng tatlong araw mayroong mangyayari sa iyo,
kung hindi ngayon, bukas" repeated three times, wanted a confrontation.
Appellant stabbed or poked the victim in the left buttock resulting in the non-fatal
wound, and when the latter turned around, successively stabbed and hacked the
victim in the armpit and chest until he fell. In all, the victim suffered nine (9)
wounds. AaDSTH
It is the well-considered nding of this Court that while Leon Lumasac had
ceased being the aggressor after he left the hut to go home, accused Exequiel
Senoja was now the unlawful aggressor in this second phase of their
confrontation. It bears mentioning that appellant contradicted himself with
respect for (sic) the reason why he left the hut. First, it was to pacify Leon and the
second reason was that he was going home.
As for appellant's injuries, it is clear that they were sustained in the course
of the victim's attempt to defend himself as shown by the lacerated wound on the
victim's left palm, a defensive wound. 3 7
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed Decision of
the Court of Appeals is AFFIRMED.
SO ORDERED.
Puno, Austria-Martinez and Tinga, JJ ., concur.
Chico-Nazario, J ., is on leave.
Footnotes
1. Penned by Associate Justice Portia Aliño-Hormachuelos, with Associate Justices Perlita

J. Tria-Tirona and Rosalinda Asuncion Vicente, concurring.
2. Penned by Acting Presiding Judge Armando A. Yanga.
3. Rollo, pp. 52–53.

4. Records, p. 1.
5. Rollo, pp. 11–12.

6. Id. at 22–23.
7. Id. at 13.
8. Id. at 16–17.
9. Id. at 32–33.
10. People v. Noay, 296 SCRA 292 (1998).
11. Bishop, A Treatise on Criminal Law, 9th ed., Vol. I, pp. 599–600.
12. Id. at 180.
13. Wharton, Criminal Law, 12th ed., Vol. I, pp. 176–177.
14. People v. Langres, 316 SCRA 769 (1999).

15. Id. at 845–846.
16. People v. Arizala, 317 SCRA 244 (1999).
17. People v. Bitoon, Sr., 309 SCRA 209 (1999).
18. Bishop, supra, p. 617.
19. Wharton Criminal Law, 12th ed., Vol. I, p. 186.
20. People v. Arizala, 317 SCRA 244 (1999); People v. Real, 308 SCRA 244 (1999).
21. TSN, 7 September 2001, pp. 6–7.
22. Id. at 8–9.

23. Exhibit "A," Records, p. 13.
24. TSN, 20 November 1997, p. 8.
25. Id. at 7.
26. Id. at 8.
27. People v. More, 321 SCRA 538 (1999); People v. Real, 308 SCRA 244 (1999).
28. TSN, 7 September 2001, p. 9.
29. People v. Sunpongco, 163 SCRA 222 (1988).

30. People v. Piamonte, 303 SCRA 577 (1999).
31. TSN, 7 September 2001, p. 8.
32. Id. at 7.
33. TSN, 29 January 2002, p. 13.
34. TSN, 12 February 2002, pp. 3–4.

35. TSN, 14 March 2001, pp. 3–4.
36. Ibid.
37. Rollo, p. 33.

SECOND DIVISION
[G.R. No. 107874. August 4, 1994.]
PHILIPPINES plaintiff-appellee, vs. GEORGE DECENA

y ROCABERTE , accused-appellant.
DECISION
REGALADO , J : p
It is said that a fool shows his annoyance at once, but a prudent man overlooks an
insult. 1 Had herein accused-appellant George Decena reflected upon and hearkened to this
biblical precept, he would not have found himself charged with murder for allegedly
stabbing to death one Jaime Ballesteros in San Fabian, Pangasinan on — of all dates —
December 25, 1990. 2
Appellant thereafter stood trial on a plea of not guilty. On September 20, 1991,
judgment was rendered by the trial court convicting him of murder, imposing on him the
penalty of reclusion perpetua, and ordering him to indemnify the heirs of the deceased in
the amount of P50,000.00, plus the additional amounts of P4,500.00 and P2,300.00
representing the funeral expenses for the victim, with costs. 3 LexLib
A motion for reconsideration led by appellant was denied ion August 26, 1992 for
lack of merit, 4 hence this appellate review wherein appellant contends, in his assigned
errors, that the lower court blundered in disregarding his claim of self-defense, and in not
appreciating the mitigating circumstance of voluntary surrender in his favor, granting
arguendo that he is guilty. 5
The case for the prosecution, anchored mainly on the testimony of Luzviminda
Ballesteros, a 14-year old daughter of the victim, is to the effect that on Christmas Day of
1990, at around 4:00 P.M., said Luzviminda was playing with her siblings at home. She
recalled being asked by her mother, Teresita Ballesteros, to fetch her father, Jaime
Ballesteros, who was then watching a game in the basketball court. On her way to the
hardcourt, Luzviminda met her father walking home in an intoxicated state. Suddenly, she
saw appellant rushing towards her father with a long bladed weapon, prompting
Luzviminda to warn her father to run for safety by shouting in the vernacular "Batik kila,
Tatay!" Instead, Jaime simply raised his hand, thus allowing appellant to stab him on the
right chest just below the nipple. Appellant then ed from the crime scene, while the victim
also managed to run but stumbled and fell to the ground. 6 cdphil
Finding that her father was too heavy for her to carry, Luzviminda called for her
mother at their house, which was only fteen meters away from the scene of the crime,
saying: "Mother, come! My father has been stabbed by George Decena." Her mother
immediately called for a tricycle and rushed Jaime to the Provincial Hospital where,
however, the victim was declared dead on arrival. 7
A different account of the incident was presented by the defense. It was claimed
that at about 4:00 P.M. of that day, appellant was watching a basketball game. The victim,
Jaime Ballesteros, went around the basketball court, walking in a wobbly manner due to
drunkenness. Jaime stopped near the place where appellant was sitting and, for no
apparent reason, held the latter by the neck with one arm and, at the same time, poking a
fork against it with the other arm. Barangay Tanod Romeo Decena who was also watching
the basketball game, intervened. He took the fork from Jaime and advised appellant to go
home. The latter left and was followed later by Jaime. cdphil
Fernando Biala, an uncle of appellant, additionally testi ed that while he was walking
on the barangay road of Longos-Patalan, he chanced upon Jaime attacking appellant with
a balisong. Fortunately, he claims, appellant was able to parry the stabbing blow and a
struggle ensued between them. Appellant overpowered Jaime and succeeded in twisting
the wrist of the victim and thrusting the knife into the latter's body. 8
In criminal cases, the burden of proof is, of course, bin the prosecution which must
rely on the strength of its evidence and not on the weakness of the defense. Herein
appellant, however, invokes self-defense, thereby shifting the burden of evidence to him
and the onus of which he must satisfactorily discharged, otherwise conviction would
follows from his admission that he killed the victim. 9 Furthermore, appellant must this
time rely on the strength of his own evidence and not on the weakness of that of the
prosecution, for even if that was weak, it cannot be disbelieved after appellant himself
admitted the killing. 1 0
The basic requirement for self-defense, as a justifying circumstance, is that there
was an unlawful aggression against the person defending himself. It must be positively
shown that there was a previous unlawful and unprovoked attack that placed the life of the
accused in danger and forced him to in ict more or less severe wounds upon his assailant,
employing therefor reasonable means to resist said attack. 1 1 The primal issue in this
case, therefore, is whether or not appellant acted in complete self-defense in killing Jaime
Ballesteros, as claimed, thus absolving him from criminal liability.
Long has it been accepted that for the right of defense to exist, it is necessary that
one be assaulted or that he be attacked, or at least that he be threatened with an attack in
an immediate manner, as, for example, brandishing a knife with which to stab him or
pointing a gun to be discharged against him. 1 2 So indispensable is unlawful aggression in
self-defense that, without it, there is no occasion to speak of the other two requisites for
such a defense because both circumstances presuppose an unlawful aggression. LLpr
The theory of the defense is that the unlawful aggression started in the basketball
court, when the victim tried to poke a fork on the neck of appellant, and continued
thereafter. Even on the elementary rule that when the aggressor leaves, the unlawful
aggression ceases, it follows that when appellant and Jaime heeded the advice of the
barangay tanod for them to go home, the unlawful aggression no longer existed, appellant
had no right whatsoever to kill or even wound the former aggressor. The supposed
continuation of the unlawful aggression which could have justi ed self-defense would have
been the circumstance that Jaime persisted in his design to attack appellant while the
latter was already in front of his house. This fact, however, the defense ruefully failed to
establish.
It is an old but a respected and consistent rule that courts must determine by a
balance of probabilities who of the participants in a ght had, in the natural order of things,
the reason to commence the aggression. 1 3 When appellant claimed that Jaime suddenly
and without any provocation tried to strangle him and poked a fork against his neck, in
front of so many people in the basketball court, 1 4 then he must necessarily have been
deeply offended, if not insulted, and this fact undoubtedly red him with a desire to get
even with the deceased.
The case at bar calls to mind the scenario and logical view that when a person had
in icted slight physical injuries on another, without any intention to in ict other injuries, and
the latter attacked the former, the one making the attack was an unlawful aggressor. The
attack made was evidently a retaliation. And, we nd this an opportune occasion to
emphasize that retaliation is different from an act of self-defense. In retaliation, the
aggression that was begun by the injured party already ceased to exist when the accused
attacked him. In self-defense, the aggression was still existing when the aggressor was
still existing when the aggressor was injured or disabled by the person making a defense.
1 5 We find these observations apropos to the situation presented by the instant case. prLL
It will be recalled that, as claimed by appellant, the unlawful aggression complained

of also took place in front of his house, where Jaime allegedly tried to attack him with a
balisong, and not only in the basketball court. To support his theory of continuing
aggression, appellant alleged that whenever the victim was drunk, he would look for
trouble. Again, the defense utterly failed to prove this hypothesis. On the contrary, the wife
of the victim testi ed that the latter has no such record in their barangay 1 6 and,
significantly, her said testimony was never refuted nor objected to by appellant.
Witnesses for and against the appellant testi ed that throughout the incident Jaime
was inebriated and that he was staggering or wobbling as he walked. 1 7 If he had such
di culty even in performing the normal bodily function of locomotion, it could not be
expected that he would muster enough courage to persist in attacking and attempting to
kill appellant, as posited by the defense, considering that the latter was decidedly stronger
than him.
Essentially involved, in view of the con icting submissions of the parties, is the
matter of the credibility of their respective witnesses. Accordingly, we are constrained to
once again advert to the jurisprudential rule that the evaluation of the credibility of
witnesses is within the province of the trial court which is better circumstanced because
of its direct role in the reception of the testimonial evidence. 1 8 After examining and
evaluating the con icting versions of the prosecution and the defense, we agree with the
court a quo that the prosecution's account is deserving of more credence. On the other
hand, we note grave inconsistencies in the declarations of the defense witnesses.
First. Appellant, in his direct examination, testi ed that a fork was poked at his neck
but, on cross-examination, he vacillated and testi ed that it was a knife instead. 1 9 Surely,
appellant must know the difference between a fork and a knife. prLL
Second. Appellant insisted that after the stabbing incident in the late afternoon of
December 25, 1990 and until his surrender early next morning, he never went out of his
house. This is contradicted by the unchallenged Entry No. 173 of the local police blotter,
especially its follow-up entry which the court below quoted in its decision:
"Relative entry no. 173, elements of this station proceeded to Barangay
Longos this town to locate the suspect and returned station with the information
that said suspect ed after the incident. One deformed fork submitted by the
father of the suspect Francisco Decena to Sgt. R.B. Diagan allegedly owned by
the victim. Under follow-up. Sgd. Ricardo Abrio, Pfc/PNP." 2 0
Third. Appellant's smug excuse for not immediately divulging to Sgt. Romeo Diagan
that he was not at fault for the death of Jaime was that he was terribly afraid to do so.
Strangely, however, this was not his demeanor and attitude when he boldly professed and
contended that it was Jaime who first poked a fork against his neck while he was watching
a basketball game. Parenthetically, the other half of the story was deliberately not
narrated. 2 1 Be that as it may, the Court has heretofore noted that a righteous individual
will not cower but would readily admit the killing at the earliest opportunity if he were
legally and morally justi ed in doing so. A belated plea of denial suggests that it is false
and only an afterthought made as a last ditch effort to avoid the consequences of the
crime. 2 2
Fourth. The supposed eyewitness of the defense who is appellant's uncle, Fernando
Biala, impresses us as either an imaginative or a coached witness. He avowed that he saw
the stabbing incident, but shock and surprise allegedly prevented him from going near
Jaime or appellant, when he saw Jaime about to stab appellant. However, on cross-
examination, he said that he merely chanced on them at the time when Jaime was already
actually stabbing appellant, for the reason that he did not see where appellant or Jaime
came from before the incident. When asked how long the ght transpired, he vaguely
answered that he could not tell because when he went up the road, the two were already
fighting. However, he again vacillated by saying that when Jaime was about to deliver the
stabbing blow, appellant caught the hand of Jaime "squeezed and pushed it forward and
Jaime Ballesteros hit himself." 2 3 This is a mercurial account since, to repeat, this witness
categorically admitted that even as he was still going up the road, the supposed
combatants were already fighting and that fight actually lasted only a few seconds. cdll
Appellant declared that he is related to the victim's wife, that they are neighbors, and
that there was no grudge between him and the victim, nor with any member of the family of
the latter. 2 4 This was apparently to bolster his theory that he had no motive to assault the
victim. His assertions, however, work both ways for it also established the fact that
Luzviminda would likewise not just indiscriminately and improvidently point her nger at
anybody but to the culprit himself, in order to obtain justice for the death of her father.
That the principal witness is the victim's daughter even lends more credence to her
testimony as her natural interest in securing the conviction of the guilty would deter her
from implicating persons other than the culprits, for otherwise the latter would thereby
gain immunity. 2 5 This observation, however, could not be said for the defense witnesses
who are all relatives of appellant. As such, they may be expected to cover up for the crime.
While relationship between the accused and his witnesses is not necessarily detrimental to
the former's line of defense, this relationship, taken together with the want of logic (of) in
the declarations of said witnesses, yields the conclusion that their testimonies lack
credibility. 2 6
In contrast, and further reinforcing the case for the People, is the fact that when
Luzviminda shouted, "Mother, come! My father has been stabbed by George Decena," that
outcry and the identi cation of the culprit were unrehearsed and spontaneously made at
the spur of the moment. Having been given shortly after a startling occurrence took place
before the eyes of Luzviminda, who had thereby no opportunity to concoct or contrive as
story, that statement has all the earmarks of the truth of what she said. Under the
environmental circumstances hereinbefore related, it easily passes the tests not only of
admissibility in evidence but also of weight in its veracity.
We, however, reject the trial court's holding that the killing of the victim was
attended by treachery. Any circumstance which would qualify a killing to murder must be
proven as indubitably as the crime itself. 2 7 Here, the qualifying circumstance of treachery
cannot be appreciated, for none of the prosecution's arguments can uphold its allegation
that, in the language of the law, appellant committed the crime by employing means,
methods or forms in the execution thereof which tended directly and especially to insure
its execution, without risk to himself arising from the defense which the offended party
might make. It is true that the attack was sudden, but that fact per se does not bespeak
the circumstance of alevosia. 2 8 It is further required that the means, methods or forms
were deliberated upon or consciously adopted by the offender. 2 9 The crime committed,
therefore, was simple homicide. llcd
The reasons advanced by the lower court for appreciating the aggravating
circumstance of disregard of age are not persuasive. There was no showing that appellant
deliberately intended to insult the age of Jaime. We hold that for this circumstance to
constitute an aggravation of criminal liability, it is necessary to prove the speci c fact or
circumstance, other than that the victim is an old man, showing insult or disregard of age
in order that it may be considered as an aggravating circumstance. 3 0 In the case at bar,
that consideration does not obtain, aside from the fact that while the victim was forty-
three years of age, he was not necessarily old, nor was there a radical disparity between
his age and that of appellant who was twenty-five years old.
The rule is that the mitigating circumstance of voluntary surrender may properly be
appreciated if the following requisites concur: (a) the offender had not actually been
arrested; (b) the offender surrendered himself to a person in authority or to an agent of a
person in authority; and (c) the surrender was voluntary. We believe that the mitigating
circumstance of voluntary surrender may be awarded to appellant. The records disclose
that appellant was, evidently with his concurrence, accompanied and surrender by his
father to a person in authority, Sgt. Romeo Diagan, early in the morning after the incident
and before he could actually be arrested. That mitigating circumstance can, therefore, be
properly considered in his favor to impose the penalty in its minimum period. prcd
WHEREFORE, the appealed judgment of the court a quo is hereby MODIFIED by

nding accused-appellant George Decena y Rocaberte guilty of the crime of homicide, and
imposing upon him an indeterminate sentence of eight (8) years of prision mayor, as
minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as maximum.
In all other respects, the said judgment is hereby AFFIRMED.
SO ORDERED.
Narvasa, C.J., Padilla, Puno and Mendoza, JJ., concur.
Footnotes
1. Proverbs, 12:16.
2. Criminal Case No. D-10303, Regional Trial Court, Branch 44, Dagupan City; Judge Crispin
C. Laron, presiding; Original Record, 1.
3. Original Record, 90.
4. Ibid., 103-104.
5. Brief for the Appellant, 3; Rollo, 30.
6. TSN, April 10, 1991, 4-9; Exhibit E, Original Record, 9.
7. Ibid., April 3, 1991, 5-7; April 10, 1991, 12-13.

8. TSN, May 2, 1991, 4-6; June 10, 1991, 4-5.
9. People vs. Uribe, G.R. Nos. 76493-94, February 26, 1990, 182 SCRA 624; People vs.
Amania, et al., G. R. No. 97612, March 23, 1993, 220 SCRA 347.
10. People vs. Ansoyon, 75 Phil. 772 (1946); People vs. Caparas, et al., L-47411, February
20, 1981, 102 SCRA 781; People vs. Gadiano, L-31818, July 30, 1982, 115 SCRA 559;
People vs. Amania, et al., ante.
11. People vs. Madali, et al., G.R. Nos. 67803-04, July 30, 1990, 188 SCRA 69.
12. 1 Viada, Codigo Penal Reformado de 1870, Quinto Edicion, 173.
13. U.S. vs. Laurel, 22 Phil. 252 (1912); People vs. Berio, 59 Phil. 533 (1934); People vs.
Dofilez, L-35103, July 25, 1984, 130 SCRA 603; Borguilla vs. Court of Appeals, et al., L-
47286 January 7, 1987, 147 SCRA 9.
14. TSN, June 10, 1991, 8.
15. See Reyes, L.B. The Revised Penal Code, 13th ed. (1993), Book One, 153-54.
16. TSN, June 10, 1991, 7-8, 11; June 24, 1991, 7.
17. TSN, June 24, 1991, 8; June 10, 1991, 7; Exhibit E, Original Record, 13.
18. People vs. Gargoles, L-40885, May 18, 1978, 83 SCRA 282; People vs. Ancheta, et al., L-
29581-82, October 30, 1974, 60 SCRA 333; People vs. Magallanes, G.R. No. 89036,
January 29, 1993, 218 SCRA 109.
19. TSN, June 10, 1991, 4, 14.
20. Original Record, 86-87.
21. TSN, June 10, 1991, 14.

22. People vs. Manlulu, G.R. No. 102140, April 22, 1994.
23. TSN, May 2, 1991, 5-11.
24. TSN, June 10, 1991, 7, 12.
25. People vs. Villalobos, et al., G.R. No. 71526, May 27, 1992, 209 SCRA 304.
26. People vs. Alfonso, G.R. No. 78954, June 18, 1990, 186 SCRA 576.
27. People vs. Tiongson, L-35123-24, July 25, 1984, 130 SCRA 614; People vs. Manalo, G.R.
No. 55177, February 27, 1987, 148 SCRA 98; People vs. Atienza, G.R. No. 68481,
February 27, 1987, 148 SCRA 147.
28. People vs. Young, 83 Phil. 702 (1949); People vs. Talay, et al., L-24852, November 28,
1980, 101 SCRA 332; People vs. Ruiz, L-33609, December 14, 1981, 110 SCRA 155.
29. People vs. Tumaob, 83 Phil. 738, 742 (1949); People vs. Tugbo, Jr., G.R. No. 75894,
April 22, 1991, 196 SCRA 133.
30. People vs. Berbal, et al., G.R. 71527, August 10, 1989, 176 SCRA 202; Cf. People vs.
Mangsant, 65 Phil. 548 (1938); People vs. Ursal, et al., L-33768, April 20, 1983, 121 SCRA
409.

EN BANC
[G.R. No. 128359. December 6, 2000.]
PHILIPPINES plaintiff-appellee, vs . ROBERTO E.

CRUZ accused-appellant.
DELA CRUZ,
The Solicitor General for plaintiff-appellee.

Atty. Pompeyo L. Bautista for accused-appellant.
SYNOPSIS
In an information led before the Regional Trial Court of Cabanatuan City, herein
accused was charged with the crime of quali ed illegal possession of rearm and
ammunition with homicide for unlawfully and feloniously attacking one Daniel Macapagal,
by shooting the latter with the use of an unlicensed caliber .38 snub nose rearm, thereby
in icting upon him gunshot wounds on different parts of his body, which caused also his
death. During arraignment, the accused pled not guilty to the crime charged, and thereafter
trial ensued. Unmoved by the claim of self-defense invoked by the accused, the trial court
rendered judgment nding the accused guilty beyond reasonable doubt of the crime
charged and sentenced him to suffer the penalty of death. He is likewise ordered to
indemnify the heirs of the deceased victim in the sum of P50,000.00; to pay actual
damages in the sum of P65,000.00 representing burial and interment expenses; and the
sum of P2,865,600.00 representing loss of income. In his plea to the Court, accused-
appellant contended that the decision of the court a quo was bereft of factual and legal
justification.
The Court scarcely found reversible error on the part of the trial court in rejecting the
claim of self-defense. Unlawful aggression, a primordial element of self-defense, would
presuppose an actual, sudden and unexpected attack or imminent danger on the life and
limb of a person — not a mere threatening or intimidating attitude — but, most importantly,
at the time the defensive action was taken against the aggressor. True, the victim barged
into the house of accused-appellant and his live-in partner and banging at the master
bedroom door with his rearm. Accused-appellant, however, upon opening the door and
seeing the victim pointing a gun at him, was able to prevent at this stage harm to himself
by promptly closing the door. He could have stopped there. Instead, accused-appellant,
taking his .38 caliber revolver, again opened the bedroom door and brandishing his own
rearm, forthwith confronted the victim. At this encounter, accused-appellant would be
quite hardput to still claim self-defense. The trial court erred, however, in imposing the
death penalty on accused-appellant. Presidential Decree No. 1866 was already amended
by Republic Act No. 8294. Section 1, third paragraph, of the amendatory law provides that
"if homicide or murder is committed with the use of an unlicensed rearm, such use of an
unlicensed rearm shall be considered as an aggravating circumstance." The provision is
clear, and there would be no need to still belabor the matter. The decision appealed from
was modified. Accused-appellant was held guilty of homicide with the use of an unlicensed
rearm and sentenced to suffer the indeterminate penalty. The award of P2,865,600.00 for
loss of earning was reduced to P1,432,800.00.
CD Technologies Asia, Inc. 2018 cdasiaonline.com

SYLLABUS
1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; SELF DEFENSE; REQUISITES;

WHEN SELF-DEFENSE IS INVOKED, THE BURDEN OF EVIDENCE SHIFTS TO THE ACCUSED
TO SHOW THAT THE KILLING HAS BEEN LEGALLY JUSTIFIED. — Unmoved by the claim of
self-defense invoked by the accused, the trial court pronounced a judgment of guilt and
handed a death sentence. "WHEREFORE, premises considered, the Court nds and so
declares the accused ROBERTO DELA CRUZ guilty beyond reasonable doubt of the crime
of Quali ed Illegal Possession of Firearm and Ammunition with Homicide, which is
penalized under Presidential Decree 1866, Sec. 1, and he is hereby sentenced to suffer
death; he is, likewise ordered to indemnify the heirs of the deceased victim in the sum of
P50,000.00; to pay actual damages in the sum of P65,000.00 representing burial and
interment expenses; and the sum of P2,865,600.00 representing loss of income." When
self-defense is invoked, the burden of evidence shifts to the accused to show that the
killing has been legally justi ed. Having owned the killing of the victim, the accused should
be able to prove to the satisfaction of the court the elements of self-defense in order that
he might be able to rightly avail himself of the extenuating circumstance. He must
discharge this burden by clear and convincing evidence. When successful, an otherwise
felonious deed would be excused mainly predicated on the lack of criminal intent of the
accused. Self-defense requires that there be (1) an unlawful aggression by the person
injured or killed by the offender, (2) reasonable necessity of the means employed to
prevent or repel that unlawful aggression, and (3) lack of su cient provocation on the part
of the person defending himself. All these conditions must concur. The Court scarcely
finds reversible error on the part of the trial court in rejecting the claim of self-defense.
2. ID.; ID.; ID.; UNLAWFUL AGGRESSION; PRESUPPOSED AN ACTUAL, SUDDEN
AND UNEXPECTED ATTACK OR IMMINENT DANGER ON THE LIFE AND LIMB OF A
PERSON, NOT A MERE THREATENING OR INTIMIDATING ATTITUDE. — Unlawful
aggression, a primordial element of self-defense, would presuppose an actual, sudden and
unexpected attack or imminent danger on the life and limb of a person — not a mere
threatening or intimidating attitude — but, most importantly, at the time the defensive
action was taken against the aggressor. True, the victim barged into the house of accused-
appellant and his live-in partner and, banging at the master bedroom door with his rearm,
he yelled, "come out." Accused-appellant, however, upon opening the door and seeing the
victim pointing a gun at him, was able to prevent at this stage harm to himself by promptly
closing the door. He could have stopped there. Instead, accused-appellant, taking his .38
caliber revolver, again opened the bedroom door and, brandishing his own rearm,
forthwith confronted the victim. At this encounter, accused-appellant would be quite hard
put to still claim self-defense.
3. ID.; ILLEGAL POSSESSION OF FIREARM; ELEMENTS; LACK OF ANIMUS
POSSIDENDI; NOT PROVEN IN CASE AT BAR. — The elements of illegal possession of
rearm are (1) the existence of the subject rearm, (2) the ownership or possession of the
rearm, and (3) the absence of the corresponding license therefor. Accused-appellant
claims that he did not have animus possidendi in the use and possession of the .38 caliber
revolver since he has used it for just a " eeting moment" to defend himself. This assertion
is not supported by the evidence. Apparently, the subject revolver has all the while been
kept in the house of accused-appellant and his live-in partner.ECaAHS
4. ID.; MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER; PRESENT IN

CASE AT BAR. — The mitigating circumstance of voluntary surrender should be considered
in favor of accused-appellant. Immediately following the shooting incident, he instructed
his live-in partner to call the police and report the incident. He waited for the arrival of the
authorities and readily acknowledge before them his having been responsible for the
shooting of the victim.
DECISION
VITUG , J : p
For automatic review is the decision, dated 27 November 1996, of the Regional Trial
Court, Branch 27, of Cabanatuan City, which has sentenced to death Roberto E. de la Cruz
for "Qualified Illegal Possession of Firearm and Ammunition with Homicide."
The information charging the accused with the offense, to which he pled "not guilty"
when arraigned, read:
"That on or about the 27th day of May, 1996, in the City of Cabanatuan,
Republic of the Philippines and within the jurisdiction of this Honorable Court, the
abovenamed accused, with intent to kill, did then and there, wilfully, unlawfully
and feloniously attack, assault and use personal violence upon the person of one
DANIEL MACAPAGAL, by shooting the latter with the use of an unlicensed Caliber
.38 snub nose rearm, with Serial No. 120958, thereby in icting upon him
gunshot wounds on different parts of his body, which caused also his death." 1
The facts relied upon by the trial court in its judgment were narrated by the O ce of
the Solicitor General in the People's brief.
"The victim Daniel Macapagal, a married man, had been a live-in partner of
prosecution witness Ma. Luz Perla San Antonio for about two to three years
before San Antonio took appellant Roberto dela Cruz, widower, as lover and live-in
partner. At the time of the incident on May 27, 1996, appellant and San Antonio
were living in a house being rented by San Antonio at 094 Valino District,
Magsaysay Norte, Cabanatuan City (pp. 2-3, TSN, July 6, 1996).
"At around 6:00 o'clock in the evening on May 27, 1996, San Antonio and
appellant were resting in their bedroom when they heard a car stop in front of
their house and later knocks on their door. San Antonio opened the front door and
she was confronted by Macapagal who made his way inside the house holding a
gun in his hand, despite San Antonio's refusal to let him in. He seemed to be
looking for something or somebody as Macapagal walked passed San Antonio
and inspected the two opened bedrooms of the house. He then went to the closed
bedroom where appellant was and banged at the door with his gun while yelling
'Come out. Come out' (p. 4, Ibid.). Appellant then opened the door but he was
greeted by Macapagal's gun which was pointed at him. Appellant immediately
closed the door while Macapagal continued banging at it. When appellant again
opened the door moments later, he was himself armed with a .38 caliber revolver.
The two at that instant immediately grappled for each other's rearm. A few
moments later shots were heard. Macapagal fell dead on the floor.
"Appellant told San Antonio to call the police on the phone. After a few
minutes police o cers arrived at the scene. They saw the dead body of
Macapagal slumped on the oor holding a gun. San Antonio met them on the
door and appellant was by then sitting. He stood up to pick his .38 caliber revolver
which he surrendered to SPO3 Felix Castro, Jr. Appellant told the police that he
shot Macapagal in self-defense and went with them to the police station.
"Dr. Jun Concepcion, Senior Medical O cer of the Cabanatuan City
General Hospital, performed an autopsy on the cadaver of Macapagal and
submitted a report thereon (Exhibit H). Macapagal sustained four (4) gunshot
wounds. Three of the wounds were non-penetrating or those that did not
penetrate a vital organ of the human body. They were found in the upper jaw of
the left side of the face, below the left shoulder and the right side of the waist.
Another gunshot wound on the left side of the chest penetrated the heart and
killed Macapagal instantly.
"It was later found by the police that the rearm used by Macapagal was a
9mm caliber pistol. It had one magazine loaded with twelve (12) live ammunition
but an examination of the gun showed that its chamber was not loaded.
"Macapagal had a license to carry said rearm. On the other hand,

appellant, who denied ownership of the .38 caliber revolver he used, had no
license therefor." 2
Unmoved by the claim of self-defense invoked by the accused, the trial court
pronounced a judgment of guilt and handed a death sentence.
"WHEREFORE, premises considered, the Court nds and so declares the
accused ROBERTO DELA CRUZ guilty beyond reasonable doubt of the crime of
Quali ed Illegal Possession of Firearm and Ammunition with Homicide, which is
penalized under Presidential Decree 1866, Sec. 1, and he is hereby sentenced to
suffer death; he is, likewise ordered to indemnify the heirs of the deceased victim
in the sum of P50,000.00; to pay actual damages in the sum of P65,000.00
representing burial and interment expenses; and the sum of P2,865,600.00
representing loss of income." 3
In his plea to this Court, accused-appellant submits that the decision of the court a
quo is bereft of factual and legal justification.
When self-defense is invoked, the burden of evidence shifts to the accused to show
that the killing has been legally justi ed. 4 Having owned the killing of the victim, the
accused should be able to prove to the satisfaction of the court the elements of self-
defense in order that he might be able to rightly avail himself of the extenuating
circumstance. 5 He must discharge this burden by clear and convincing evidence. When
successful, an otherwise felonious deed would be excused mainly predicated on the lack
of criminal intent of the accused. Self-defense requires that there be (1) an unlawful
aggression by the person injured or killed by the offender, (2) reasonable necessity of the
means employed to prevent or repel that unlawful aggression, and (3) lack of su cient
provocation on the part of the person defending himself. 6 All these conditions must
concur. 7
Here, the Court scarcely nds reversible error on the part of the trial court in
rejecting the claim of self-defense.
Unlawful aggression, a primordial element of self-defense, would presuppose an
actual, sudden and unexpected attack or imminent danger on the life and limb of a person
— not a mere threatening or intimidating attitude 8 — but, most importantly, at the time the
defensive action was taken against the aggressor. True, the victim barged into the house
of accused-appellant and his live-in partner and, banging at the master bedroom door with
his rearm, he yelled, "come out." Accused-appellant, however, upon opening the door and
seeing the victim pointing a gun at him, was able to prevent at this stage harm to himself
by promptly closing the door. He could have stopped there. Instead, accused-appellant,
taking his .38 caliber revolver, again opened the bedroom door and, brandishing his own
rearm, forthwith confronted the victim. At this encounter, accused-appellant would be
quite hardput to still claim self-defense. 9
The second element of self-defense would demand that the means employed to
quell the unlawful aggression were reasonable and necessary. The number of the wounds
sustained by the deceased in this case would negate the existence of this indispensable
component of self-defense. 1 0 The autopsy report would show that the victim sustained
four gunshot wounds —
"1. Gunshot wound on the (L) shoulder as point of entry with trajectory
toward the (L) supra-scapular area as point of exit (through-through);
"2. Gunshot wound on the abdomen ® side laterally as point of entry
(+) for burned gun powder super cially with trajectory towards on the same side
as point of exit, through-through;
"3. Gunshot wound on the anterior chest (L) mid-clavicular line, level
5th ICS as point of entry with trajectory towards the (L) ank as point of exit
(through-through) Internally: penetrating the heart (through-through) anterior then
posterior then (L) hemidia-prhagm and stomach; and HIDCTA
"4. Lacerated wound linear 1/2 inch in length (L) cheek area" 1 1 —
which would, in fact, indicate a determined effort to kill. 1 2

It would be essential, finally, for self-defense to be aptly invoked that there be lack of
su cient provocation on the part of the person defending himself. When accused-
appellant, opening the bedroom door the second time, confronted, instead of merely
taking precautionary measures against, the victim with his own gun he had taken from the
cabinet, accused-appellant could no longer correctly argue that there utterly was no
provocation on his part.
The elements of illegal possession of rearm are (1) the existence of the subject
rearm, (2) the ownership or possession of the rearm, and (3) the absence of the
corresponding license therefor. 1 3
Accused-appellant claims that he did not have animus possidendi in the use and
possession of the .38 caliber revolver since he has used it for just a " eeting moment" to
defend himself. This assertion is not supported by the evidence. Apparently, the subject
revolver has all the while been kept in the house of accused-appellant and his live-in
partner. Accused-appellant himself has thusly testified:
"Q When for the first time did you see that firearm inside the drawer of
Candy?
"A Since the last week of April, sir.
"Q Did you ask Candy why she was in possession of that gun?
"A Once I opened her drawer and I asked her who owns that gun, sir.

"Q And what was her reply as to who owns that gun?
"A According to her that firearm was used as payment by a group of persons
who were her customers at the Videoke, sir.
"Q And what else did Candy tell you about that firearm, if you know?
"A She also told me that we can use that gun for protection, sir." 1 4
The trial court has erred, however, in imposing the death penalty on accused-
appellant. Presidential Decree No. 1866 is already amended by Republic Act No. 8294.
Section 1, third paragraph, of the amendatory law provides that "if homicide or murder is
committed with the use of an unlicensed rearm, such use of an unlicensed rearm shall
be considered as an aggravating circumstance." The provision is clear, and there would be
no need to still belabor the matter. 1 5
The mitigating circumstance of voluntary surrender should be considered in favor of
accused-appellant. Immediately following the shooting incident, he instructed his live-in
partner to call the police and report the incident. He waited for the arrival of the authorities
and readily acknowledged before them his having been responsible for the shooting of the
victim. 1 6
The aggravating circumstance of the use of unlicensed rearm being effectively
offset by the mitigating circumstance of voluntary surrender, 1 7 the penalty prescribed by
law for the offense should be imposed in its medium period. 1 8 Article 249 of the Revised
Penal Code prescribes the penalty of reclusion temporal in the crime of homicide, the
range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the
Indeterminate Sentence Law, the maximum of the penalty shall be taken from the medium
period of reclusion temporal, i.e., from fourteen (14) years, eight (8) months, and one (1)
day to seventeen (17) years and four (4) months, while the minimum shall be taken from
the penalty next lower in degree, which is prision mayor, anywhere in its range of from six
(6) years and one (1) day to twelve (12) years.
The amount of P2,865,600.00 awarded by the trial court as damages for loss of
earning capacity should be modi ed. The testimony of the victim's surviving spouse,
Marina Villa Juan Macapagal, on the earning capacity of her husband Daniel Macapagal
sufficiently established the basis for making possible such an award. 1 9 The deceased was
44 years old at the time of his death in 1996, with a gross monthly income of P9,950.00. 2 0
In accordance with the American Expectancy Table of Mortality adopted in several cases
2 1 decided by this Court, the loss of his earning capacity should be calculated thusly:
Gross less living

Net earning capacity (x) = life expectancy x annual - expenses
income (50% of gross
annual income)
or
x= 2(80-44) x [119,400.00 - 59,700.00]

———
3
= 24 x 59,700.00
= P1,432,800.00
============
WHEREFORE, the decision appealed from is MODIFIED. Accused-appellant
ROBERTO DELA CRUZ y ESGUERRA is hereby held guilty of HOMICIDE with the use of an
unlicensed rearm, an aggravating circumstance that is offset by the mitigating
circumstance of voluntary surrender, and he is accordingly sentenced to an indeterminate
penalty of nine (9) years and one (1) day of prision mayor as minimum to sixteen (16)
years and one (1) day of reclusion temporal as maximum. The award of P2,865,600.00 for
loss of earning is reduced to P1,432,800.00. In other respects, the judgment of the trial
court is AFFIRMED.
In the service of his sentence, accused-appellant shall be credited with the full time
of his preventive detention if they have agreed voluntarily and in writing to abide by the
same disciplinary rules imposed upon convicted prisoners pursuant to Article 29 of the
Revised Penal Code. IDATCE
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing,
Pardo, Buena, Gonzaga-Reyes, Yñares-Santiago, and De Leon, Jr., JJ., concur.
Footnotes
1. Rollo, p. 11.
2. Rollo, pp. 125-127.
3. Rollo, p. 38.
4. People vs. Galapin, 293 SCRA 474.
5. People vs. Baniel, 275 SCRA 472.
6. See People vs. Demonteverde, 290 SCRA 175.
7. Art. 11, par. 1, Revised Penal Code.
8. People vs. De Gracia, 264 SCRA 200.

9. Unlawful aggression is, of course, primordial; it must be real, i.e., an actual, sudden, and
unexpected attack or an imminent danger thereof, and not just a threatening or
intimidating attitude. (People vs. Maalat, 275 SCRA 206.)
10. People vs. Babor, 262 SCRA 359.

11. Rollo, p. 34.
12. People vs. Maceda, 197 SCRA 499.
13. People vs. Bergante, 286 SCRA 629.
14. TSN, 17 October 1969, p. 20.
15. People vs. Molina, 292 SCRA 742.

16. The elements of voluntary surrender are that (1) the offender has not been actually
arrested; (2) he surrender himself to a person in authority or an agent of a person in
authority; and (3) his surrender was voluntary (People vs. Medina, 286 SCRA 44).
17. Presidential Decree No. 1866 not having provided otherwise.

18. Article 64, Revised Penal Code.
19. People vs. Verde, 302 SCRA 690; Pantranco North Express, Inc. vs. Baesa, 179 SCRA
384.
20. TSN of Marina Macapagal, 15 August 1996, p. 10.
21. People vs. Verde, 302 SCRA 690; Sanitary Steam Laundry, Inc. vs. Court of Appeals, 300
SCRA 20; Metro Manila Transit Corp. vs. Court of Appeals, 298 SCRA 495; Negros
Navigation Co., Inc. vs. Court of Appeals, 281 SCRA 534; Villa-Rey Transit, Inc. vs. Court
of Appeals, 31 SCRA 511.

SECOND DIVISION
[Adm. Matter No. 384 . February 21, 1946.]
PHILIPPINES plaintiff-appellee, vs . NICOLAS

THE PEOPLE OF THE PHILIPPINES,
JAURIGUE and AVELINA JAURIGUE , defendants. AVELINA JAURIGUE ,
appellant.
Jose Ma. Recto for appellant.

Assistant Solicitor General Enriquez and Solicitor Palma for appellee.
SYLLABUS
1. CRIMINAL LAW; HOMICIDE; EXEMPTING CIRCUMSTANCES; DEFENSE OF

HONOR. — The attempt to rape a woman constitutes an unlawful aggression su cient
to put her in a state of legitimate defense, inasmuch as a woman's honor cannot but be
esteemed as a right as precious, if not more, than her very existence; and it is evident
that a woman who, thus imperiled, wounds nay kills the offender, should be afforded
exemption from criminal liability, since such killing cannot be considered a crime from
the moment it became the only means left for her to protect her honor from so great an
outrage.
2. ID.; ID.; ID.; ID.; CASE AT BAR. — When the deceased sat by the side of
defendant and appellant on the same bench, near the door of the barrio chapel and
placed his hand on the upper portion of her right thigh, without her consent, the said
chapel was lighted with electric lights, and there were already several people, about ten
of them, inside the chapel, including her own father and the barrio lieutenant; there was
and there could be no possibility of her being raped. And when she gave A. C. a thrust at
the base of the left side of his neck in icting upon him a mortal wound 4½ inches deep,
causing his death a few moments later, the means employed by her in the defense of
her honor was evidently excessive. Held: That she cannot be legally declared
completely exempt from criminal liability.
3. ID.; ID.; MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER
OBFUSCATION. — The fact that defendant and appellant immediately and voluntarily
and unconditionally surrendered to the barrio lieutenant, admitting having stabbed the
deceased, and agreed to go to her house shortly thereafter and to remain there subject
to the order of the said barrio lieutenant, an agent of the authorities, and the further fact
that she had acted in the immediate vindication of a grave offense committed against
her a few moments before, and upon such provocation as to produce passion and
obfuscation, or temporary loss of reason and self-control, should be considered as
mitigating circumstances in her favor.
4. ID.; ID.; ID.; LACK OF INTENTION TO COMMIT so GRAVE A WRONG AS THAT
ACTUALLY COMMITTED. — It appearing that defendant and appellant merely wanted to
punish the offending hand of the deceased with her knife, as shown by the fact that she
in ected upon him only one single wound, the mitigating circumstance of lack of
intention to commit so grave a wrong as that actually committed should be considered
in her favor.
5. ID.; ID.; AGGRAVATING CIRCUMSTANCES; COMMISSION OF OFFENSE IN
CONSECRATED PLACE. — The aggravating circumstance that the killing was done in a
place dedicated to religious worship, cannot be legally considered, where there is no
evidence to show that the defendant and appellant had murder in her heart when she
entered the chapel the fatal night.
DECISION
JOYA J :
DE JOYA, p
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First
Instance of Tayabas, for the crime of murder, of which Nicolas Jaurigue was acquitted,
but defendant Avelina Jaurigue was found guilty of homicide and sentenced to an
indeterminate penalty ranging from seven years, four months and one day of prision
mayor to thirteen years, nine months and eleven days of reclusion temporal, with the
accessory penalties provided by law, to indemnify the heirs of the deceased, Amado
Capiña, in the sum of P2,000, and to pay one-half of the costs. She was also credited
with one-half of the period of preventive imprisonment suffered by her.
From said judgment of conviction, defendant Avelina Jaurigue appealed to the
Court of Appeals for Southern Luzon, and in her brief led therein on June 10, 1944,
claimed —
"(1) That the lower court erred in not holding that said appellant had acted
in the legitimate defense of her donor and that she should be completely
absolved of all criminal responsibility;
"(2) That the lower court erred in not nding in her favor the additional
mitigating circumstances that (a) she did not have the intention to commit so
grave a wrong as that actually committed, and that (b)she voluntarily surrendered
to the agents of the authorities; and
"(3) That the trial court erred in holding that the commission of the alleged
offense was attented by the aggravating circumstance of having been committed
in a sacred place."
The evidence adduced by the parties, at the trial in the court below, has
sufficiently established the following facts:
That both the defendant and appellant Avelina Jaurigue and the deceased Amado
Capiña lived in the barrio of Sta. Isabel, city of San Pablo, Province of Laguna; that for
sometime prior to the stabbing of the deceased by defendant and appellant, in the
evening of September 20, 1942, the former had been courting the latter in vain, and that
on one occasion, about one month before that fatal night, Amado Capiña snatched a
handkerchief belonging to her, bearing her nickname "Aveling,: while it was being
washed by her cousin, Josefa Tapay.
On September 13, 1942, while Avelina was feeding a dog under her house,
Amado approached her and spoke to her of his love, which she atly refused, and he
thereupon suddenly embraced and kissed her and touched her breast, on account of
which Avelina, a resolute and quick- tempered girl, slapped Amado, gave him st blows
and kicked him. She kept the matter to herself, until the following morning when she
informed her mother about it. Since then, she armed herself with a long fan knife,
whenever she went out, evidently for self-protection.
On September 15, 1942, about midnight, Amado climbed up the house of
defendant and appellant, and surreptitiously entered the room where she was sleeping.
He felt her forehead, evidently with the intention of abusing her. She immediately
screamed for help, which awakened her parents and brought them to her side. Amado
came out from where he had hidden under a bed in Avelina's room and kissed the hand
of Nicolas Jaurigue, her father, asking for forgiveness; and when Avelina's mother made
an attempt to beat Amado, her husband prevented her from doing so, stating that
Amado probably did not realize what he was doing. Nicolas Jaurigue sent for the barrio
lieutenant, Casimiro Lozada, and for Amado's parents, the following morning. Amado's
parents came to the house of Nicolas Jaurigue and apologized for the misconduct of
their son; and as Nicolas Jaurigue was then angry, he told them to end the conversation,
as he might not be able to control himself.
In the morning of September 20, 1942, Avelina received information that Amado
had been falsely boasting in the neighborhood of having taken liberties with her person
and that she had even asked him to elope with her and that if he should not marry her,
she would take poison; and that Avelina again received information of Amado's
bragging at about 5 o'clock in the afternoon of that same day.
At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas
Jaurigue went to the chapel of the Seventh Day Adventists of which he was the
treasurer, in their barrio, just across the provincial road from his house, to attend
religious services, and sat on the front bench facing the altar with the other o cials of
the organization and the barrio lieutenant, Casimiro Lozada. Inside the chapel it was
quite bright as there were electric lights.
Defendant and appellant Avelina Jaurigue entered the chapel shortly after the
arrival of her father, also for the purpose of attending religious services, and sat on the
bench next to the last one nearest the door. Amado Capiña was seated on the other
side of the chapel. Upon observing the presence of Avelina Jaurigue, Amado Capiña
went to the bench on which Avelina was sitting and sat by her right side, and, without
saying a word, Amado, with the greatest of impudence, placed his hand on the upper
part of her right thigh. On observing this highly improper and offensive conduct of
Amado Capiña, Avelina Jaurigue, conscious of her personal dignity and honor, pulled
out with her right hand the fan knife marked Exhibit B, which she had in a pocket of her
dress, with the intention of punishing Amado's offending hand. Amado seized Avelina's
right hand, but she quickly grabbed the knife with her left hand and stabbed Amado
once at the base of the left side of the neck, in icting upon him a wound about 41/2
inches deep, which was necessarily mortal. Nicolas Jaurigue, who was seated on one of
the front benches, saw Amado bleeding and staggering towards the altar, and upon
seeing his daughter still holding the bloody knife, he approached her and asked: "Why
did you do that," and answering him, Avelina said: "Father, I could not endure anymore."
Amado Capiña died from the wound a few minutes later. Barrio lieutenant Casimiro
Lozada, who was also in the same chapel, approached Avelina and asked her why she
did that, and Avelina surrendered herself, saying: "Kayo na po and bahala sa aquin,"
meaning: "I hope you will take care of me." or more correctly, "I place myself at your
disposal." Fearing that Amado's relatives might retaliate, barrio lieutenant Lozada
advised Nicolas Jaurigue and herein defendant and appellant to go home immediately,
to close their doors and windows and not to admit anybody into the house, unless
accompanied by him. That father and daughter went home and locked themselves up,
following instructions of the barrio lieutenant, and waited for the arrival of the municipal
authorities; and when three policemen arrived in their house, at about 10 o'clock that
night, and questioned them about the incident, defendant and appellant immediately
surrendered the knife marked as Exhibit B, and informed said policemen brie y of what
had actually happened in the chapel and of the previous acts and conduct of the
deceased, as already stated above, and went with said policemen to the police
headquarters, where her written statements were taken, and which were presented as a
part of the evidence for the prosecution.
The high conception of womanhood that our people possess, however humble
they may be, is universal. It has been entertained and has existed in all civilized
communities.
A beautiful woman is said to be a jewel; a good woman, a treasure; and that a
virtuous woman represents the only true nobility. And they are the future wives and
mothers of the land Such are the reasons why, in the defense of their honor, when
brutally attacked, women are permitted to make use of all reasonable means available
within their reach, under the circumstances. Criminologists and courts of justice have
entertained and upheld this view.
On the other hand, it is the duty of every man to protect and show loyalty to
womanhood, as in the days of chivalry. There is a country where women freely go out
unescorted and, like the beautiful roses in their public gardens, they always receive the
protection of all. That country is Switzerland.
In the language of Viada, aside from the right to life on which rests the legitimate
defense of our own person, we have the right to property acquired by us, and the right
to honor which is not the least prized of our patrimony (1 Viada, Codigo Penal, 5th ed.,
pp. 172, 173).
The attempt to rape a woman constitutes an unlawful aggression su cient to
put her in a state of legitimate defense, inasmuch as a woman's honor cannot but be
esteemed as a right as precious, if not more, than her very existence; and it is evident
that a woman who, thus imperiled, wounds, may kills the offender, should be afforded
exemption from criminal liability, since such killing cannot be considered a crime from
the moment it became the only means left for her to protect her honor from so great an
outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague and Alcansare, 62
Phil., 504).
As long as there is actual danger of being raped, a woman is justi ed in killing her
aggressor, in the defense of her honor. Thus, where the deceased grabbed the
defendant in a dark night at about 9 o'clock, in an isolated barrio trail, holding her rmly
from behind, without warning and without revealing his identity, and, in the struggle that
followed, touched her private parts, and that she was unable to free herself by means of
her strength alone, she was considered justi ed in making use of a pocket knife in
repelling what she believed to be an attack upon her honor, and which ended in his
death, since she had no other means of defending herself, and consequently exempt
from all criminal liability (People vs. De la Cruz, 61 Phil., 344).
And a woman, in defense of her honor, was perfectly justi ed in in icting wounds
on her assailant with a bolo which she happened to be carrying at the time, even though
her cry for assistance might have been heard by people nearby, when the deceased
tried to assault her in a dark and isolated place, while she was going from her house to
a certain tienda, for the people of making purchases (United States vs. Santa Ana and
Ramos, 22 Phil., 249).
In the case, however, in which a sleeping woman was awakened at night by
someone touching her arm, and, believing that some person was attempting to abuse
her, she asked who the intruder was and receiving no reply, attacked and killed the said
person with a pocket knife, if was held that, notwithstanding the woman's belief in the
supposed attempt, it was not su cient provocation or aggression to justify her
completely in using a deadly weapon. Although she actually believed it to be the
beginning of an attempt against her, she was not completely warranted in making such
a deadly assault, as the injured person, who turned out to be her own brother-in-law
returning home with his wife, did not do any other act which could be considered as an
attempt against her honor (United States vs. Apego, 23 Phil., 391).
In the instant case, if defendant and appellant had killed Amado Capiña, when the
latter climbed up her house late at night on September 15, 1942, and surreptitiously
entered her bedroom, undoubtedly for the purpose of raping her, as indicated by his
previous acts and conduct, instead of merely shouting for help, she could have been
perfectly justified in killing him, as shown by the authorities cited above.
According to the facts established by the evidence and found by the learned trial
court in this case, when the deceased sat by the side of defendant and appellant on the
same bench, near the door of the barrio chapel and placed his hand on the upper
portion of her right thigh, without her consent, the said chapel was lighted with electric
lights, and there were already several people, about ten of them, inside the chapel,
including her own father and the barrio lieutenant and other dignitaries of the
organization; and under the circumstances, there was and there could be no possibility
of her being raped. And when she gave Amado Capiña a thrust at the base of the left
side of his neck, in icting upon him a mortal wound 41/2 inches deep, causing his
death a few moments later, the means employed by her in the defense of her honor was
evidently excessive; and under the facts and circumstances of the case, she cannot be
legally declared completely exempt from criminal liability.
But the fact that defendant and appellant immediately and voluntarily and
unconditionally surrendered to the barrio lieutenant in said chapel, admitting having
stabbed the deceased, immediately after the incident, and agreed to go to her house
shortly thereafter and to remain there subject to the order of the said barrio lieutenant,
an agent of the authorities (United States vs. Fortaleza, 12 Phil., 472); and the further
fact that she had acted in the immediate vindication of a grave offense committed
against her a few moments before, and upon such provocation as to produce passion
and obfuscation, or temporary loss of reason and self-control, should be considered as
mitigating circumstances in her favor (People vs. Parana, 64 Phil., 331; People vs.
Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86).
Defendant and appellant further claims that she had not intended to kill the
deceased but merely wanted to punish his offending hand with her knife, as shown by
the fact that she in icted upon him only one single wound. And this is another
mitigating circumstance which should be considered in her favor (United States vs.
Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil., 123).
The claim of the prosecution, sustained by the learned trial court, that the offense
was committed by the defendant and appellant, with the aggravating circumstance that
the killing was done in a place dedicated to religious worship, cannot be legally
sustained; as there is no evidence to show that the defendant and appellant had murder
in her heart when she entered the chapel that fatal night. Avelina is not a criminal by
nature. She happened to kill under the greatest provocation. She is a God-fearing young
woman, typical of our country girls, who still possess the consolation of religious hope
in a world where so many others have hopelessly lost the faith of their elders and now
drifting away they know not where.
The questions raised in the second and third assignments of error appear,
therefore, to be well taken; and so is the first assignment of error to a certain degree.
In the mind of the court, there is not the least doubt that, in stabbing to death the
deceased Amado Capiña, in the manner and form and under the circumstances above
indicated, the defendant and appellant committed the crime of homicide, with no
aggravating circumstance whatsoever, but with at least three mitigating circumstances
of a quali ed character to be considered in her favor; and, in accordance with the
provisions of article 69 of the Revised Penal Code, she is entitled to a reduction by one
or two degrees in the penalty to be imposed upon her. And considering the
circumstances of the instant case, the defendant and appellant should be accorded the
most liberal consideration possible under the law (United States vs. Apego, 23 Phil.,
391; United States vs. Rivera, 41 Phil., 472; People vs. Mercado, 43 Phil., 950).
The law prescribes the penalty of reclusion temporal for the crime of homicide;
and if it should be reduced by two degrees, the penalty to be imposed in the instant
case is that of prision correccional; and pursuant to the provisions of section 1 of Act
No. 4103 of the Philippine Legislature, known as the Indeterminate Sentence Law,
herein defendant and appellant should be sentenced to an indeterminate penalty
ranging from arresto mayor in its medium degree, to prision correccional in its medium
degree. Consequently, with the modi cation of the judgment appealed from, defendant
and appellant Avelina Jaurigue is hereby sentenced to an indeterminate penalty ranging
from two months and one day of arresto mayor, as minimum, to two years, four
months, and one day of prision correccional, as maximum, with the accessory penalties
prescribed by law, to indemnify the heirs of the deceased Amado Capiña, in the sum of
P2,000, and to suffer the corresponding subsidiary imprisonment, not to exceed 1/3 of
the principal penalty, in case of insolvency, and to pay the costs. Defendant and
appellant should also be given the bene t of 1/2 of her preventive imprisonment, and
the knife marked Exhibit B ordered confiscated. So ordered.
Ozaeta, Perfecto, and Bengzon, JJ., concur.
Separate Opinions
HILADO , J., concurring:
In past dissenting and concurring opinions my view regarding the validity or

nullity of judicial proceedings in the Japanese-sponsored courts which functioned in the
Philippines during the Japanese occupation has been consistent. I am not abandoning
it. But in deference to the majority who sustain the opposite view, and because no party
litigant herein has raised the question, I have taken part in the consideration of this case
on the merits. And, voting on the merits, I concur in the foregoing decision penned by
Justice De Joya.

EN BANC
[G.R. Nos. L-33466-67. April 20, 1983.]
PHILIPPINES plaintiff-appellee, vs. MAMERTO NARVAEZ,

PEOPLE OF THE PHILIPPINES, NARVAEZ
defendant-appellant.
The Solicitor General for plaintiff-appellee.

Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.
SYLLABUS
1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCE; NOT SATISFIED AS THE

CASE AT BAR. — 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. I of the Revised Penal Code, but in order for it
to be appreciated, the following requisites must occur: Unlawful aggression;
Reasonable necessity of the means employed to prevent or repel it; Lack of su cient
provocation on the part of the person defending himself (Art. II, par. 1, Revised Penal
Code, as amended). There is no question that there was aggression on the part of the
victims: Fleiseher 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
reasonableness of the resistance is also a requirement of the justifying circumstance
of self defense or defense of one's rights under paragraph I of Article 11, Revised Penal
Code. When the appellant red his shotgun from his window, killing his two victims, his
resistance was disproportionate to the attack. WE nd, however, that the third element
of defense of property is present, i.e., lack of su cient 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.
2. ID.; MITIGATING CIRCUMSTANCE; SPECIAL MITIGATING CIRCUMSTANCE
OF INCOMPLETE DEFENSE. — Appellant's act in killing the deceased was not justi able,
since-not all the elements for justi cation 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.
3. ID.; HOMICIDE; QUALIFYING CIRCUMSTANCE NOT APPRECIATED. — 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. WE likewise nd the aggravating
(qualifying) circumstance of evident premeditation not su ciently 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. This single evidence is not su cient 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).
4. ID.; MITIGATING CIRCUMSTANCE; VOLUNTARY SURRENDER. — 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.
5. ID.; ID.; PASSION AND OBFUSCATION. — Passion and obfuscation
attended the commission of the crime. The appellant awoke to nd 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 rst 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 re at the victims
in defense of hit rights.
6. ID.; PENALTY; REDUCTION IN THE IMPOSITION THEREOF. — 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.
7. ID.; CIVIL LIABILITY; MODIFICATION. — The civil liability of the appellant
should be modi ed. In We 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. Thus, the moral and material suffering of appellant and his
family deserves leniency as to his civil liability.
8. ID.; PENAL STATUTE; RETROACTIVE EFFECT APPLIED IN THE CASE AT
BAR. — Article 39 of the Revised Penal Code requires a person convicted of prision
correctional or arrests mayor and ne 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 P2.50.
However, the amendment introduced by Republic Act No. 5465 on April 21, 1969 made
the provision of Art. 39 applicable to nes only and not to reparation of the damage
caused, indemni cation 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.
GUTIERREZ, Jr., J., separate opinion:
1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; SELL DEFENSE; DEFENSE
OF PROPERTY; INVOKED ONLY WHEN COUPLED WITH SOME FORM OF ATTACK ON
PERSON OF ONE ENTRUSTED WITH SAID 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 front 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.
2. ID.; ID.; ID.; UNLAWFUL AGGRESSION; ABSENT IN CASE AT BAR. — 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 plea
of self defense. I agree with the majority opinion that the crime is homicide but without
any privileged mitigating circumstance.
3. ID.; HOMICIDE; PENALTY; LOWERED BY TWO GENERIC MITIGATING
CIRCUMSTANCES. — 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, the maximum
sentence the appellant should have served was prision mayor plus the indemni cation
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.
DECISION
MAKASIAR J :
MAKASIAR, p
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 quali ed 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, nding 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 P12,000.00 as compensatory damages, P10,000.00 as moral damages,
P2,000.00 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 represented 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 Ibañez, 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 red at Rubia, likewise hitting him (pp. 127-133, t.s.n., Defense
transcript). Both Fleischer and Rubia died as a result of the shooting' (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. LibLex
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, led 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 identi ed
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, a rmed the decision in
favor of the company.
On May 29, 1950, the settlers led 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
a rmed 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 a rmed 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 oor 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 led 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 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 nished, 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. prcd
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. P, p. 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 su cient 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 toward s the jeep and knowing that there was a rearm 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. LLphil
A review of the circumstances prior to the shooting as borne by the evidence

reveals that ve 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 rst 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 nished. 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 led 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 led by the Republic of the Philippines on November 28,
1968 to annul the sales patent and to cancel the corresponding certi cate 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 ling 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 led 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: LLjur
"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 red his shotgun from his window, killing
his two victims, his resistance was disproportionate to the attack.
WE nd, however, that the third element of defense of property is present, i.e.,
lack of su cient 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
rst 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 justi able, since
not all the elements for justi cation 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. cdrep
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 nd the aggravating (qualifying) circumstance of evident
premeditation not su ciently 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 su cient 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 su cient interval between the premeditation and the execution of the crime
to allow them (him) to re ect 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. cdll
Likewise, We nd that passion and obfuscation attended the commission of the

crime. The appellant awoke to nd 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 rst 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 re 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
nd 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 su cient 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. cdll
The civil liability of the appellant should be modi ed. 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 — nancial 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 su cient means
to ght 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 arresto mayor and ne 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
P2.50. However, the amendment introduced by Republic Act No. 5465 on April 21, 1969
made the provisions of Art. 39 applicable to nes only and not to reparation of the
damage caused, indemni cation 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. LibLex
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 (P4,000.00) 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., concur 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.
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. prLL
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, the maximum
sentence the appellant should have served was prision mayor plus the indemni cation
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. llcd
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.

SECOND DIVISION
[G.R. No. 168818. March 9, 2007.]
NILO SABANG , petitioner, vs . THE PEOPLE OF THE PHILIPPINES,

PHILIPPINES
respondent.
DECISION
TINGA J :
TINGA, p
On January 17, 1997, in the midst of a drinking spree on the eve of the esta in
Liloan, Ormoc City, an intoxicated Nicanor Butad uttered the ominous words "I will shoot
you" to Randy Sabang, to the horror of young Sabang's father, Nilo, and the other
onlookers. Within moments, Butad himself lay dead from four gunshot wounds on his
body. Nilo Sabang, petitioner herein, who was charged with and later convicted for the
homicide, admits to the killing of Butad, but claims that the shooting was accidental and
done as a means of defending his son. An array of witnesses for the prosecution and the
defense provides a competing set of particulars as to the shooting. Ultimately, the
prosecution's version, supported by the physical evidence, stands out as the truth.
This much is admitted. At around 6:30 p.m. on that fateful night, petitioner and
Butad were having drinks together with spouses Cruz and Andresa Villamor outside the
store of Melania Sombilon in Sitio Landing, Barangay Liloan, Ormoc City. 1 Butad, a civilian
agent with the Philippine National Police, was then armed with a .38-caliber revolver which
was tucked in his holster. In the midst of the drinking spree, Randy Sabang suddenly and
unexpectedly appeared before the group. His appearance triggered a negative reaction
from Butad, who then uttered the words "I will shoot you" to Randy Sabang. 2
Certain circumstances attaching to this evident threat are disputed, as are the
events that consequently followed. What is certain is that shortly afterwards, Butad lay
dead, having sustained four (4) gunshot wounds from his own revolver. Petitioner appears
to have ed but voluntarily surrendered thereafter, turning over the revolver as he
surrendered. 3
Photographs of Butad as he lay dead on the scene were presented in evidence, 4 as
was the o cial report on his autopsy, prepared by the City Health O ce of Ormoc City.
The autopsy report 5 indicated the following findings:
GENERAL SURVEY:
Examined a fairly nourished/fairly developed male cadaver with

approximate height of 165 cm & weight of 65 kg in state of rigor mortis.
FINDINGS:
1. Bullet wound 1.0 x 0.5 cm at anterior chest wall, 14 cm from midline,

right, along 3rd intercostal space anterior axillary line penetrating
thoracic cavity lacerating upper lobe of right lung.
2. Bullet wound 0.7 x 0.5 cm at 4th intercostal space mid-axillary line,

right, penetrating thoracic cavity lacerating upper lobe of right lung.
3. Bullet wound 1.5 x 0.7 cm at distal 3rd lateral aspect of right arm
injuring skin & muscles.
4. Bullet wound 0.7 cm x 0.7 cm at mid vertebral column fracturing

spine of 8th thoracic vertebra.
CAUSE OF DEATH:
Hypovolemia 2° to multiple bullet wound.
During arraignment, petitioner pleaded innocence, but during the presentation of the
evidence for the defense, he claimed to have acted in defense of a relative. Petitioner and
four (4) other witnesses testi ed for the defense. The following facts were sought to be
established by petitioner: SEAHID
By the time Butad had joined what was to be his last drinking spree, he was already
in a belligerent mood. Earlier that afternoon, he had been chasing after Ramil Perez when
the latter demanded payment for a bet Butad had lost over a cockfight. 6
The chase was witnessed by Celso Pepito, who would testify for the defense. 7 As to
the shooting itself, testifying for the defense were petitioner himself, the storekeeper
Sombilon, and an eyewitness, Laurito Caparoso, who was situated right across the road
when the shooting occurred. HIcTDE
Sombilon testi ed that when Butad told Randy Sabang, "I will shoot you," the
deceased already had his revolver aimed at Randy. 8 At this point, Andresa Villamor, a niece
of the deceased, told Butad, "Please don't[,] tiyo, he's the son of Nilo." 9 Petitioner and
Caparoso also testi ed that at that time, Butad had his revolver pointed at Randy. 1 0
Petitioner claimed that he then grabbed the arm of Butad, attempting to twist it toward his
body and away from his son. As they were grappling and the revolver was pointed towards
the body of Butad, petitioner claimed he heard gunshots, and only after the shots were
red was he able to "take the gun" from Butad. 1 1 Petitioner's account is substantially
corroborated by Caparoso. 1 2
This version of the shooting, however, stands in sharp contrast to that presented by
the prosecution.
Natividad Payud, an eyewitness to the incident, testi ed that while the group of the
deceased Butad, petitioner, and the spouses Cruz and Andresa Villamor was having a
drinking spree, Randy suddenly entered the scene. Butad, appearing surprised, thrust a
glass of Tanduay near Randy's mouth and uttered the words, "I will shoot you." Payud is
certain that at this point, Butad was not holding any gun. 1 3 Andresa Villamor, another
eyewitness to the incident, con rmed Payud's testimony that Butad was holding a glass
and not a gun when he uttered those words. 1 4
Petitioner reacted to Butad's statement saying, "Just try to shoot my child because
I'll never ght for him because he is a spoiled brat." 1 5 Andresa Villamor then chided Butad
and said, "Do not say that tiyo[,] because it's [sic] the son of Nilo Sabang." 1 6 TAcSCH
Unexpectedly, a person appeared on the scene and punched Butad causing the latter
to fall down lying partially on his back. Petitioner, who was then sitting across Butad, stood
up and pulled the gun tucked in Butad's waist. He pointed the gun at Butad and red a shot
at the latter's chest. 1 7 Payud and Andresa Villamor both saw petitioner re two (2) more
shots near Butad's chest. 1 8
In a Judgment 1 9 dated November 22, 1999, the trial court convicted petitioner
principally on the strength of the testimony of Dr. Edilberto P. Calipayan, the physician who
conducted the post mortem examination of Butad's body, to the effect that the absence of
powder burns indicates that the gunshots were red at a distance of more than 10 inches
from the victim's body and not close range as claimed by petitioner. 2 0
The Court of Appeals a rmed petitioner's conviction in a Decision 2 1 dated August
16, 2004 and denied reconsideration in a Resolution 2 2 dated July 6, 2005.
In this Petition, 2 3 petitioner prays for his acquittal contending that he acted in
defense of his son, a justifying circumstance under Art. 11 2 4 of the Revised Penal Code.
He claims that Butad's act of aiming a gun at his son while uttering the words "I will shoot
you" was an aggression of the most imminent kind which prompted him to try to wrestle
the gun from Butad leading to the accidental firing of the fatal shots.
DcSTaC
Petitioner theorizes that the fact that Butad was then fully clothed could have
accounted for the absence of powder burns on Butad's body. He disputes the trial court's
nding that the wounds would have looked oblique had the shots been red during a
struggle, claiming that round entrance wounds could likewise be produced in near contact
fire.
He further avers that Payud was not really an eyewitness to the event, pointing to the
testimony of Benjamin Mahusay that he and Payud were already out of Sitio Landing and
were heading home when they heard the gunshots. Likewise, Andresa Villamor's testimony
is allegedly confined to seeing Butad sprawled on the ground.
The O ce of the Solicitor General insists on petitioner's conviction but asks that the
award of moral damages be reduced from P100,000.00 to P50,000.00. 2 5
We shall rst resolve the question of whether petitioner's insistence on the justifying
circumstance of defense of relative deserves merit. cIaHDA
In order to successfully claim that he acted in defense of a relative, the accused

must prove the concurrence of the following requisites: (1) unlawful aggression on the
part of the person killed or injured; (2) reasonable necessity of the means employed to
prevent or repel the unlawful aggression; and (3) the person defending the relative had no
part in provoking the assailant, should any provocation been given by the relative attacked.
2 6 Unlawful aggression is a primary and indispensable requisite without which defense of
relative, whether complete or otherwise, cannot be validly invoked. 2 7
It is well-settled in this jurisdiction that once an accused has admitted that he
in icted the fatal injuries on the deceased, it is incumbent upon him in order to avoid
criminal liability, to prove the justifying circumstance claimed by him with clear,
satisfactory and convincing evidence. He cannot rely on the weakness of the prosecution
but on the strength of his own evidence, "for even if the evidence of the prosecution were
weak it could not be disbelieved after the accused himself had admitted the killing." Thus,
petitioner must establish with clear and convincing evidence that the killing was justi ed,
and that he incurred no criminal liability therefor. 2 8
Unlawful aggression must be clearly established by the evidence. In this case, there
is a divergence in the testimonies of the prosecution and defense witnesses as to whether
Butad aimed a gun at petitioner's son as he uttered the words "I will shoot you." With this
con ict emerges the question of whether petitioner sensed an imminent threat to his son's
life. Payud unequivocally testi ed that petitioner even dismissed Butad's utterance saying,
"Just try to shoot my child because I'll never fight for him because he is a spoiled brat."
This indicates to us that petitioner did not consider Butad's words a threat at all.
These circumstances led the trial court to conclude that there was no unlawful
aggression on the part of Butad which could have precipitated petitioner's actions. This
nding, a rmed by the Court of Appeals, is conclusive on the Court barring any showing of
any arbitrariness or oversight of material facts that could change the result. 2 9
Furthermore, the presence of four (4) gunshot wounds on Butad's body negates the
claim that the killing was justi ed but instead indicates a determined effort to kill him.
Even assuming that it was Butad who initiated the attack, the fact that petitioner was able
to wrest the gun from him signi es that the aggression which Butad had started already
ceased. Petitioner became the unlawful aggressor when he continued to shoot Butad even
as he already lay defenseless on the ground. 3 0 EISCaD
On this point, the defense's own witness, Caparoso, said in his Counter A davit 3 1
and during direct examination that after the rst shot was red, he saw petitioner take
possession of the gun as Butad released his hold of it. It was after petitioner already had
the gun that Caparoso heard more gunshots. 3 2 Even petitioner admitted that he had an
easy time twisting the hand with which Butad was supposedly holding his revolver
because the latter was already very drunk having started drinking before noon that day. 3 3
Another crucial point to consider is that the prosecution's theory is consistent with
the physical evidence.
The distance from which a shot is red affects the nature and extent of the injury
caused on the victim. In close range re, the injury is not only due to the missile but also
due to the pressure of the expanded gases, ame and other solid products of combustion.
In contrast, distant re usually produces the characteristic effect of the bullet alone. 3 4 A
shot red from a distance of more than 60 cm or about two (2) feet does not produce the
burning, smudging or tattooing typically present in loose contact or near re, short range
fire and medium range fire. 3 5
Powder burns is a term commonly used by physicians whenever there is blackening
of the margin at the entrance of the gunshot wound. The blackening is due to smoke
smudging, gunpowder tattooing and, to a certain extent, burning of the wound margin. 3 6
As found by the medico-legal o cer in this case, Butad's body did not have any powder
burns. In response to the court's queries, Dr. Calipayan testified:
COURT'S QUESTIONS
Q Being an expert, is it a scienti c fact that every gun burst within ten (10)
inches distance as you said, is it always a fact that there is presence of
powder burns?
A It is always a fact, if the caliber of the rearm is higher or I can say, may be
.22 caliber as well as there is a gun powder that burst. If it is red about
less than ten (10) inches from the surface of the skin, it will always cause
powder burns.
Q And in this case, you cannot indicate the presence of powder burns?

A Because I did not find any. 3 7
The fact that there were no powder burns on Butad's body indicates that the shots
were red at a distance of more than two (2) feet and not at close range as the defense
suggests. Moreover, Butad sustained four (4) gunshot wounds, three (3) of which were in
the chest area, circumstances which are inconsistent with the defense's theory of
accidental firing. 3 8 ScaEIT
On the credibility of the prosecution's witnesses, the defense questions Payud's

testimony averring that its witness, Benjamin Mahusay, testi ed that he and Payud were
already on their way home when they heard the gunshots. According to Mahusay, he
attended a cock ght which ended at 5 o'clock in the afternoon of January 17, 1997. He
went home afterwards and claimed to have met Payud on the way home at around 5 in the
afternoon. 3 9 It was at this time that he and Payud supposedly heard gunshots.
Mahusay's account, however, con icts with the established fact that Butad was shot
to death at around 6:30 that night. His testimony all the more loses signi cance in the face
of Payud's compelling testimony that she went back to Sitio Landing to fetch her children
and witnessed the killing. 4 0
Moreover, it is not true, as the defense insists, that Andresa Villamor did not witness
the actual shooting. She unequivocally testi ed that she turned back and saw Sabang take
the pistol from Butad and point the gun at the latter. She instinctively covered her eyes
shouting, "Do not shoot my uncle!" She uncovered her eyes after hearing the rst gunshot,
saw petitioner still pointing the gun at Butad, and watched as petitioner shot Butad two (2)
more times. 4 1
In the nal analysis, petitioner failed to demonstrate any reason to disturb the
ndings and conclusions of the trial court and the Court of Appeals. His conviction of the
crime of homicide is certain. Under Art. 249 of the Revised Penal Code, homicide is
punished by reclusion temporal. There being one (1) mitigating circumstance of voluntary
surrender, the penalty shall be imposed in its minimum period. 4 2 Applying the bene ts of
the Indeterminate Sentence Law, the trial court correctly imposed an indeterminate penalty
ranging from eight (8) years and one (1) day of prision mayor as minimum to twelve (12)
years and one (1) day of reclusion temporal as maximum.
As regards the matter of damages, we a rm the award of civil indemnity in the
amount of P50,000.00 for the heirs of Butad in line with recent jurisprudence. Civil
indemnity is mandatory and is granted to the heirs of the victim without need of proof
other than the commission of the crime. 4 3 We also a rm the award of P180,000.00
representing loss of earning capacity at a reasonable life expectancy of three (3) years
considering that Butad was already 67 years old at the time of the incident. 4 4 Likewise
a rmed are the award of P50,000.00 as burial expenses duly proven, attorney's fees of
P40,000.00, and appearance fee of P1,000.00 per hearing.
We, however, agree with the O ce of the Solicitor General that consistent with
pertinent jurisprudence, the award of moral damages should be reduced from
P100,000.00 to P50,000.00. 4 5 Finally, in the absence of any aggravating circumstance, the
trial court correctly withheld the award of exemplary damages. 4 6 TDcAaH
WHEREFORE, the instant petition is DENIED for lack of merit. The assailed Decision
of the Court of Appeals dated August 16, 2004 and its Resolution dated July 6, 2005,
a rming the Judgment rendered by the Regional Trial Court dated November 26, 1999,
are AFFIRMED with the MODIFICATION that the award of moral damages is reduced to
P50,000.00. Costs against petitioner. CIAHDT
SO ORDERED.
Quisumbing, Carpio, Carpio-Morales and Velasco, Jr., JJ., concur.
Footnotes
1. TSN, May 28, 1999, pp. 6-10, 15; August 21, 1997, p. 8.
2. TSN, August 21, 1997, pp. 8-9.
3. TSN, May 28, 1999, p. 30.

4. Records, pp. 160-161.
5. Id. at 159.
6. TSN, May 28, 1999, pp. 13-14.
7. TSN, December 4, 1998, pp. 8-9.
8. TSN, February 11, 1999, p. 15.
9. Id. at 16.
10. TSN, August 24, 1998, p. 16; May 28, 1999, p. 21.
11. TSN, May 28, 1999, pp. 28-30.
12. TSN, August 24, 1998, pp. 17-20.

13. TSN, August 21, 1997, pp. 8-9.
14. TSN, June 16, 1997, p. 10.
15. TSN, August 21, 1997, p. 10.

16. TSN, June 16, 1997, p. 11; August 21, 1997, p. 10.
17. TSN, August 21, 1997, pp. 11-13.
18. Id. at 13; TSN, June 16, 1997, pp. 14-15.

19. Records, pp. 406-410. The dispositive portion of the Judgment reads:
Wherefore, the Court finds the accused Nilo Sabang GUILTY beyond reasonable doubt
of the crime of homicide as charged, and hereby penalizes him after appreciating one
mitigating circumstance of voluntary surrender, to an indeterminate imprisonment of 8
years and 1 day prision mayor as minimum to 12 years and 1 day reclusion temporal as
maximum, and to pay the offended party the sum of P50,000.00 as indemnity; sum of
P50,000.00 as burial expense; the sum of P180,000.00 as loss of income at a
reasonable life expectancy of the victim at 3 years; the sum of P100,000.00 for moral
damages; and P40,000.00 as attorney's fees including P1,000.00 per appearance.
If the accused was detained, the period of his detention shall be credited to him in full if
he abides by the terms for convicted prisoners, for only 4/5 thereof.
SO ORDERED.
20. TSN, August 4, 1999, pp. 12-17.
21. Rollo, pp. 30-38; Penned by Associate Justice Pampio A. Abarintos and concurred in by
Associate Justices Mercedes Gozo-Dadole and Ramon M. Bato, Jr.
22. Id. at 39-40.

23. Id. at 3-29.
24. Art. 11. Justifying circumstances. — The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur:
First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.
2. Anyone who acts in defense of the person or rights of his spouses, ascendants,
descendants, or legitimate, natural, or adopted brothers or sisters or his relatives by
affinity in the same degrees, and those by consanguinity within the fourth civil degree,
provided that the first and second requisites prescribed in the next preceding
circumstance are present, and the further requisite, in case the provocation was given by
the person attacked, that the one making defense had no part therein.
25. Rollo, pp. 55-69.

26. REVISED PENAL CODE, Art. 11.
27. People v. Ventura, G.R. Nos. 148145-46, July 5, 2004, 433 SCRA 389, 409.
28. Cabuslay v. People, G.R. No. 129875, September 30, 2005, 471 SCRA 241, 256-257.
29. People v. Alba, 425 Phil. 666 (2002).
30. People v. Barnuevo, 418 Phil. 521 (2001).
31. Records, p. 25.
32. TSN, August 24, 1998, p. 20.
33. TSN, May 28, 1999, pp. 38 and 44.
34. PEDRO P. SOLIS, LEGAL MEDICINE (1987), p. 354.

35. Id. at 357-358. A short range fire covers a distance of 1 to 15 cm while a medium range
fire covers a distance of more than 15 cm but less than 60 cm.
36. Id. at 350.

37. TSN, August 4, 1999, pp. 15-16.
38. PEDRO P. SOLIS, LEGAL MEDICINE, supra note 34 at 354.
39. TSN, May 5, 1998, pp. 8-10, 18.
40. TSN, August 21, 1997, pp. 6-7.
41. TSN, June 16, 1997, pp. 13-15; 36-37.

42. REVISED PENAL CODE, Art. 64(2).
43. People v. Opuran, G.R. Nos. 147674-75, March 17, 2004, 425 SCRA 654, 673.
44. Butad's widow testified that his income is P5,000.00 a month; RTC Records, p. 408.
45. Marzonia v. People, G.R. No. 153794, June 26, 2006, 492 SCRA 627.
46. CIVIL CODE, Art. 2230.

FIRST DIVISION
[G.R. No. 153875. August 16, 2006.]
PHILIPPINES plaintiff-appellee, vs . ROLANDO

LEONIDA accused-
DAGANI y REYES and OTELLO SANTIANO Y LEONIDA,
appellants.
DECISION
AUSTRIA-MARTINEZ J :
AUSTRIA-MARTINEZ, p
For review before the Court is the Decision dated June 20, 2002 1 of the Court of
Appeals (CA) which a rmed the Decision of the Regional Trial Court of the City of Manila,
Branch 12 (RTC), dated February 18, 1993, in Criminal Case No. 89-77467, nding the
accused-appellants Otello Santiano y Leonida (Santiano) and Rolando Dagani y Reyes
(Dagani) guilty of the crime of Murder.
The accusatory portion of the Information reads:
That on or about September 11, 1989, in the City of Manila, Philippines, the
said accused conspiring and confederating together and mutually helping each
other did then and there, willfully, unlawfully and feloniously, with intent to kill,
evident premeditation and treachery, attack, assault and use of personal violence
upon one ERNESTO JAVIER Y FELIX by then and there shooting him with a .38
caliber revolver, thereby in icting upon the said ERNESTO JAVIER Y FELIX mortal
gunshot wounds which were the direct and immediate cause of his death
thereafter.
CONTRARY TO LAW. 2
Upon arraignment, the appellants pleaded not guilty. Trial ensued where the
prosecution adduced evidence to establish the following:
At about 4:45 in the afternoon of September 11, 1989, a group composed of
Ernesto Javier (Javier), Lincoln Miran (Miran), and two other individuals had been drinking
at the canteen located inside the compound of the Philippine National Railways (PNR)
along C.M. Recto Avenue, Tondo, Manila. All of a sudden, appellants, who were security
o cers of the PNR and covered by the Civil Service Rules and Regulations, entered the
canteen and approached the group. Appellant Dagani shoved Miran, causing the latter to
fall from his chair. Dagani then held Javier while Santiano shot Javier twice at his left side,
killing the latter.
The defense proceeded to prove their version of the facts:
Appellants testi ed that they were ordered by their desk o cer to investigate a
commotion at the canteen. Upon reaching the place, Santiano ordered his co-accused,
Dagani, to enter, while the former waited outside.
Dagani approached Javier who had been striking a bottle of beer on the table. Javier
then pulled out a .22 caliber revolver and attempted to re at Dagani, but the gun failed to
go off. Then suddenly, while outside the canteen, Santiano heard gun re and, from his
vantage point, he saw Javier and Dagani grappling for a .22 caliber gun which belonged to
Javier. During the course of the struggle, the gun went off, forcing Santiano to re a
warning shot. He heard Javier's gun re again, so he decided to rush into the canteen.
Santiano then shot Javier from a distance of less than four meters.
Appellants invoked the justifying circumstances of self-defense and lawful
performance of o cial duty as PNR security o cers. They also argued that the
prosecution failed to establish treachery and conspiracy. CDESIA
The RTC rendered its Decision, the dispositive portion of which reads:
WHEREFORE, finding both accused Otello Santiano y Leonida and Rolando
Dagani y Reyes guilty beyond reasonable doubt of the crime of Murder de ned
and punished under Art. 248, RPC, with the presence of the mitigating
circumstance of voluntary surrender and granting them the bene t of [the]
Indeterminate Sentence Law, both accused are hereby sentenced to each suffer
an Indeterminate prison term of TEN (10) YEARS and ONE (1) DAY of prision
mayor as minimum, to EIGHTEEN (18) YEARS and ONE (1) DAY of reclusion
temporal . . . .
Both accused are hereby ordered to indemnify the heirs of the victim the
sum of P50,000.00 as death indemnity, the sum of P31,845.00 as funeral and
burial expenses, the sum of P30,000.00 as and for [sic] attorney's fees and the
further sum of P1,000.00 per appearance of counsel.
Both accused shall be credited with the full extent of their preventive
imprisonment. Both accused are hereby committed to the Director, National
Penitentiary, Muntinlupa, Metro Manila for service of Sentence.
SO ORDERED. 3
In brief, the RTC held that appellants failed to prove that Javier attempted to
squeeze the trigger of the .22 caliber gun when he pointed it at Dagani; that during the
course of the struggle for the possession of the .22 caliber gun, the danger to the life of
the accused ceased to be imminent; that in grappling for the weapon, Dagani "controlled"
the hands of Javier and pushed them away from his body; that the appellants failed to
produce the two empty shells as physical evidence of the gun re allegedly caused by
Javier; that no points of entry or bullet markings on the walls of the canteen were shown;
that, in light of these ndings, no unlawful aggression was present on the part of the
victim; that the appellants failed to prove that they were on o cial duty at the time of the
incidence; that, since it was not established that Javier actually red his gun, the injury
in icted upon him cannot be regarded as a necessary consequence of the due
performance of an o cial duty; that the appellants were acting in conspiracy; that the
qualifying circumstance of treachery attended the killing, considering that Javier had been
shot while his hands were being held by Dagani and as his body was out of balance and
about to fall; and that the mitigating circumstance of voluntary surrender should be
appreciated in favor of the appellants.
The appellants appealed to the CA and assigned the following errors:
I
THE LOWER COURT GRAVELY ERRED IN NOT APPRECIATING SELF DEFENSE ON

THE PART OF THE ACCUSED.
II
THE LOWER COURT ERRED WHEN IT FAILED TO CONSIDER THE FACT THAT
THE ACCUSED-APPELLANTS WERE IN LAWFUL PERFORMANCE OF AN OFFICIAL
DUTY.
III
THE LOWER COURT GRAVELY AND SERIOUSLY ERRED IN RULING THAT THERE
WAS CONSPIRACY.
IV
THE LOWER COURT GRAVELY ERRED IN FINDING THAT THE PROSECUTION

WAS ABLE TO ESTABLISH BEYOND REASONABLE DOUBT THAT THE ACCUSED
ARE GUILTY OF MURDER. 4
The CA rendered its Decision, the dispositive portion of which states:

WHEREFORE, the appealed judgment of conviction is MODIFIED.
Appellants are hereby sentenced to reclusion perpetua. The award for attorney's
fees and appearance fees for counsel are hereby deleted. In all the other aspects,
the appealed decision is maintained.
Let the entire records of the case be elevated to the Supreme Court for the
mandated review.
SO ORDERED. 5
The C A a rmed the ndings of fact as well as the salient portions of the RTC
Decision, but deleted the award of attorney's fees and the per appearance fees of counsel
since, the CA reasoned, the instant case is criminal in nature which is under the control of
the public prosecutor, and, additionally, the RTC failed to justify this award in the body of
its Decision. And last, the CA found that the RTC erroneously applied the Indeterminate
Sentence Law since the penalty for Murder, at the time of the incident, was reclusion
perpetua which is an indivisible penalty to be imposed in its entirety, regardless of the
attending mitigating circumstance of voluntary surrender.
Appellants are now before this Court submitting for resolution the same matters
argued before the CA. Through their Manifestation dated February 11, 2003, 6 appellants
prayed to dispense with the filing of additional briefs.
As of date, the records show that despite the efforts exerted by the surety and the
responsible law o cers to locate the appellants, the latter could not be found and have
jumped bail. 7
The appeal is partly meritorious.
Appellants argue that the courts a quo misappreciated the facts and erred in nding
that there was no unlawful aggression on the part of the victim. They insist that the victim,
Javier, had been armed with a revolver at the time he was struggling with appellant Dagani;
that the former "could have easily killed the latter;" that, given the fact that Javier had been
drinking, "it is quite probable for Javier to act harshly and aggressively towards peace
o cers such as the accused;" 8 and that Javier actually red three shots from his .22
caliber gun. 9
We are not convinced. HEIcDT

When self-defense is invoked, the burden of evidence shifts to the accused to show
that the killing was legally justi ed. Having owned the killing of the victim, the accused
should be able to prove to the satisfaction of the Court the elements of self-defense in
order to avail of this extenuating circumstance. He must discharge this burden by clear
and convincing evidence. When successful, an otherwise felonious deed would be excused,
mainly predicated on the lack of criminal intent of the accused. Self-defense requires that
there be (1) an unlawful aggression by the person injured or killed by the offender, (2)
reasonable necessity of the means employed to prevent or repel that unlawful aggression,
and (3) lack of su cient provocation on the part of the person defending himself. All these
conditions must concur. 1 0
Unlawful aggression, a primordial element of self-defense, would presuppose an
actual, sudden and unexpected attack or imminent danger on the life and limb of a person
— not a mere threatening or intimidating attitude 1 1 — but most importantly, at the time the
defensive action was taken against the aggressor. 1 2 To invoke self-defense successfully,
there must have been an unlawful and unprovoked attack that endangered the life of the
accused, who was then forced to in ict severe wounds upon the assailant by employing
reasonable means to resist the attack. 1 3
In the instant case, the assertions that it was "quite probable" that Javier, during the
course of the struggle for the rearm, "could have easily killed" the appellants are uncertain
and speculative. There is aggression in contemplation of the law only when the one
attacked faces real and immediate threat to one's life. The peril sought to be avoided must
be imminent and actual, not just speculative. 1 4
To sum up the matter, we quote the findings of the CA:

The defense was unable to prove that there was unlawful aggression on
the part of Javier. They were unable to present evidence that the victim actually
red his gun. No spent shells from the .22 caliber pistol were found and no bullets
were recovered from the scene of the incident. Javier also tested negative for
gunpowder residue. Moreover, the trial court found appellant Dagani's account of
the incident to be incredible and self-serving. In sum, the defense presented a bare
claim of self-defense without any proof of the existence of its requisites. 1 5
Even if it were established that Javier red his gun as the appellants so insist, the
imminence of the danger to their lives had already ceased the moment Dagani held down
the victim and grappled for the gun with the latter. After the victim had been thrown off-
balance, there was no longer any unlawful aggression that would have necessitated the act
of killing. 1 6 When an unlawful aggression that has begun no longer exists, the one who
resorts to self-defense has no right to kill or even to wound the former aggressor. 1 7 When
Javier had been caught in the struggle for the possession of the gun with appellant Dagani,
the grave peril envisaged by appellant Santiano, which impelled him to re at the victim,
had then ceased to a reasonable extent, 1 8 and undoubtedly, Santiano went beyond the call
of self-preservation when he proceeded to in ict the excessive and fatal injuries on Javier,
even when the alleged unlawful aggression had already ceased. 1 9
The second element of self-defense demands that the means employed to
neutralize the unlawful aggression are reasonable and necessary. It is settled that
reasonable necessity of the means employed does not imply material commensurability
between the means of attack and defense. What the law requires is rational equivalence. 2 0
The circumstances in their entirety which surround the grappling of the rearm by Dagani
and Javier, such as the nature and number of gunshot wounds sustained by the victim 2 1
which amounted to two fatal wounds, 2 2 that Dagani was able to restrain the hands of
Javier and push them away from his body, 2 3 that Dagani was larger than Javier and had
finished Special Weapons and Tactics (SWAT) hand-to-hand combat training, 2 4 and Javier,
as admitted by the appellants, was inebriated at the time of the incident, 2 5 do not justify
appellant Santiano's act of fatally shooting the victim twice. 2 6
All things considered, the appellants' plea of self-defense is not corroborated by
competent evidence. The plea of self-defense cannot be justi ably entertained where it is
not only uncorroborated by any separate competent evidence but is in itself extremely
doubtful. 2 7 Whether the accused acted in self-defense is a question of fact. Like alibi, the
a rmative defense of self-defense is inherently weak because, as experience has
demonstrated, it is easy to fabricate and di cult to disprove. 2 8 This Court, therefore,
nds no reversible error on the part of the courts a quo in rejecting the claim of self-
defense.
Appellants set up the defense that they were in the lawful performance of their
o cial duties. They speci cally aver that they had been ordered by their desk o cer to
proceed to the canteen in response to a telephone call stating that there was a group
"creating trouble;" that they were in the call of duty and exercising their functions and
responsibilities as members of the PNR Civil Security O ce to preserve peace and order
and protect the lives and property in the PNR Compound; 2 9 and that, invoking
jurisprudence, as security o cers in the performance of duty, like the police, they must
stand their ground and overcome the opponent, and the force that may be exerted must
differ from that which ordinarily may be offered in self defense. 3 0
Article 11 of the Revised Penal Code provides that a person who acts in the
ful llment of a duty or in the lawful exercise of a right or o ce does not incur any criminal
liability. Two requisites must concur before this defense can prosper: 1) the accused must
have acted in the performance of a duty or in the lawful exercise of a right or o ce; and 2)
the injury caused or the offense committed should have been the necessary consequence
of such lawful exercise. 3 1 These requisites are absent in the instant case.
As found by the CA:
The defense failed to prove that the security officers were in fact on duty at
the time they were at the canteen. The trial court gave weight to the fact that the
appellants were unable to submit their daily time records to show that they were
on duty at the time. Appellants' assertion that they were ordered to go on 24-hour
duty was belied by PNR Security Investigator Rolando Marinay's testimony that
PNR security o cers work in two 12-hour shifts, from 7:00 a.m. to 7:00 p.m. and
from 7:00 p.m. to 7:00 a.m.
Moreover, since it was not established that Javier red his gun, the injury
in icted upon him cannot be regarded as a necessary consequence of appellants'
due performance of an official duty. 3 2
As stated, considering that the imminent or actual danger to the life of the
appellants had been neutralized when Dagani grappled with Javier and restrained his
hands; that Javier had been thrown off-balance; that Dagani had been specially trained for
these purposes; and that Javier had been drinking immediately prior to the scu e, this
Court holds that the fatal injuries that appellant Santiano in icted on the victim cannot be
deemed to be necessary consequences of the performance of his duty as a PNR security
o cer. 3 3 While it is recognized that police o cers — if indeed the appellants can be
likened to them — must stand their ground and overwhelm their opponents, in People v.
Ulep, 3 4 this Court counseled:
The right to kill an offender is not absolute, and may be used only as a last
resort, and under circumstances indicating that the offender cannot otherwise be
taken without bloodshed. The law does not clothe police o cers with authority to
arbitrarily judge the necessity to kill. It may be true that police o cers sometimes
nd themselves in a dilemma when pressured by a situation where an immediate
and decisive, but legal, action is needed. However, it must be stressed that the
judgment and discretion of police o cers in the performance of their duties must
be exercised neither capriciously nor oppressively, but within reasonable limits. In
the absence of a clear and legal provision to the contrary, they must act in
conformity with the dictates of a sound discretion, and within the spirit and
purpose of the law. We cannot countenance trigger-happy law enforcement
o cers who indiscriminately employ force and violence upon the persons they
are apprehending. They must always bear in mind that although they are dealing
with criminal elements against whom society must be protected, these criminals
are also human beings with human rights. 3 5
But this Court cannot agree with the ndings of the courts a quo that the appellants
were in conspiracy. SCHTac
The RTC simply held:

The Information cited conspiracy of the accused. Since it can also be
committed thru simultaneous/concerted action and considering that Javier was
shot by Santiano while being held by Dagani, under jurisprudence, conspiracy is
present. 3 6
The tenor of the factual findings of the CA is equally unsatisfactory:

Moreover, the facts show that Javier was shot by appellant Santiano as he
was being subdued by appellant Dagani. The trial court held that the manner of
the attack was indicative of a joint purpose and design by the appellants. 3 7
Courts must judge the guilt or innocence of the accused based on facts and not on
mere conjectures, presumptions, or suspicions. 3 8 Other than the plain fact that the victim
had been shot by one of the accused while being held by a co-accused, there is no other
evidence that the appellants were animated by the same purpose or were moved by a
previous common accord. It follows that the liability of the accused must be determined
on an individual basis. While no formal agreement is necessary to establish conspiracy
because conspiracy may be inferred from the circumstances attending the commission of
the crime, yet, conspiracy must be established by clear and convincing evidence. 3 9
This Court has held that even if all the malefactors joined in the killing, such
circumstance alone does not satisfy the requirement of conspiracy because the rule is that
neither joint nor simultaneous action is per se su cient proof of conspiracy. Conspiracy
must be shown to exist as clearly and convincingly as the commission of the offense itself.
4 0 Thus, even assuming that Javier was simultaneously attacked, this does not prove
conspiracy. No evidence was presented to show that the appellants planned to kill Javier
or that Dagani's overt acts facilitated that alleged plan. The prosecution did not establish
that the act of Dagani in trying to wrestle the gun from Javier and in the process, held the
latter' s hands, was for the purpose of enabling Santiano to shoot at Javier. The
prosecution had the burden to show Dagani's intentional participation to the furtherance of
a common design and purpose 4 1 or that his action was all part of a scheme to kill Javier.
That Dagani did not expect Santiano to shoot the victim is established when Santiano
testi ed that Dagani "seem[ed] to be shocked, he was standing and looking at the victim"
as Javier gradually fell to the ground. 4 2 And since Dagani's conviction can only be
sustained if the crime had been carried out through a conspiracy duly proven, in view of the
failure of the prosecution to discharge that burden, this Court is constrained to acquit him.
And this Court cannot say that treachery attended the attack. The RTC declared:
[T]he Court believes that Javier was shot while his body was out-balanced
and about to fall to the right side and while his hands were being held by Dagani.
Javier, therefore, was shot at when he has no means to defend himself, hence, the
killing was attended by the qualifying circumstance of treachery. 4 3
which the CA affirmed as follows:

The ndings of the court a quo clearly showed that Javier was being held
down and could not effectively use his weapon. As such, the trial court held that
Javier could not be considered to be an armed man as he was being held down
and was virtually helpless.
It has been held that when an assault is made with a deadly weapon upon
an unarmed and unsuspecting victim who [was] given no immediate provocation
for the attack and under conditions which made it impossible for him to evade the
attack, ee or make [a] defense, the act is properly quali ed as treachery, and the
homicide resulting therefrom is classified as murder. 4 4 . . .
Treachery under par. 16 of Article 14 of the Revised Penal Code is de ned as the
deliberate employment of means, methods or forms in the execution of a crime against
persons which tend directly and specially to insure its execution, without risk to the
offender arising from the defense which the intended victim might raise. Treachery is
present when two conditions concur, namely: (1) that the means, methods and forms of
execution employed gave the person attacked no opportunity to defend himself or to
retaliate; and (2) that such means, methods and forms of execution were deliberately and
consciously adopted by the accused without danger to his person. 4 5
This Court has held that the suddenness of the attack, the in iction of the wound
from behind the victim, the vulnerable position of the victim at the time the attack was
made, or the fact that the victim was unarmed, do not by themselves render the attack as
treacherous. 4 6 This is of particular signi cance in a case of an instantaneous attack made
by the accused whereby he gained an advantageous position over the victim when the
latter accidentally fell and was rendered defenseless. 4 7 The means employed for the
commission of the crime or the mode of attack must be shown to have been consciously
or deliberately adopted by the accused to insure the consummation of the crime and at the
same time eliminate or reduce the risk of retaliation from the intended victim. 4 8 For the
rules on treachery to apply, the sudden attack must have been preconceived by the
accused, unexpected by the victim, and without provocation on the part of the latter. 4 9
Treachery is never presumed. Like the rules on conspiracy, it is required that the manner of
attack must be shown to have been attended by treachery as conclusively as the crime
itself. 5 0
The prosecution failed to convincingly prove that the assault by the appellants had
been deliberately adopted as a mode of attack intended to insure the killing of Javier and
without the latter having the opportunity to defend himself. Other than the bare fact that
Santiano shot Javier while the latter had been struggling with Dagani over the possession
of the .22 caliber gun, no other fact had been adduced to show that the appellants
consciously planned or predetermined the methods to insure the commission of the crime,
nor had the risk of the victim to retaliate been eliminated during the course of the struggle
over the weapon, as the latter, though struggling, had not been completely subdued. As
already stated, this Court must emphasize that the mere suddenness of the attack, or the
vulnerable position of the victim at the time of the attack, or yet even the fact that the
victim was unarmed, do not by themselves make the attack treacherous. 5 1 It must be
shown beyond reasonable doubt that the means employed gave the victim no opportunity
to defend himself or retaliate, and that such means had been deliberately or consciously
adopted without danger to the life of the accused. 5 2
For these reasons, the Court is inclined to look upon the helpless position of Javier
as merely incidental to the attack, and that the decision to shoot Javier was made in an
instant. 5 3
Considering the rule that treachery cannot be inferred but must be proved as fully
and convincingly as the crime itself, any doubt as to its existence must be resolved in favor
of Santiano. Accordingly, for failure of the prosecution to prove treachery to qualify the
killing to Murder, appellant Santiano may only be convicted of Homicide. 5 4 The penalty,
therefore, under Article 249 of the Revised Penal Code, as amended, is reclusion temporal.
The O ce of the Solicitor General is correct in that the courts a quo failed to
consider the aggravating circumstance of taking advantage of o cial position under
Article 14 (1) of the Revised Penal Code, since the accused, a PNR security o cer covered
by the Civil Service, committed the crime with the aid of a gun he had been authorized to
carry as such. 5 5 Considering that the mitigating circumstance of voluntary surrender, as
duly appreciated by the courts a quo, shall be offset against the aggravating circumstance
of taking advantage of o cial position, the penalty should be imposed in its medium
period, pursuant to Article 64 (4) of the aforesaid Code.
Applying the Indeterminate Sentence Law, the sentence of appellant Santiano will
consist of a minimum that is anywhere within the full range of prision mayor, and a
maximum which is anywhere within reclusion temporal in its medium period. This Court
hereby xes it to be from eight (8) years and one (1) day of prision mayor as minimum, to
fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal, as maximum.
As to the award of damages, prevailing jurisprudence entitles the heirs of the
deceased to the amount of P50,000.00 as civil indemnity for the death of the victim
without need of any evidence or proof of damages. 5 6
The CA erred in deleting the attorney's fees and per appearance fees for lack of
factual basis. Although the CA is correct in noting that the RTC failed to justify these
awards in the body of its Decision, this appeal opens the entire case for review and,
accordingly, the records show that the foregoing amounts had been stipulated by the
parties, 5 7 thereby dispensing with the need to prove the same. 5 8
As to moral damages, however, the widow of the victim, Erlinda Javier, is not entitled
to the same. She did not testify on any mental anguish or emotional distress which she
suffered as a result of her husband's death. No other heirs of Javier testi ed in the same
manner. 5 9
Inasmuch as the aggravating circumstance of taking advantage of o cial position
attended the killing, the Court awards exemplary damages in the amount of P25,000.00 in
accordance with Articles 2230 and 2234 of the Civil Code and prevailing jurisprudence. 6 0
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 15304 dated
June 20, 2002 is MODIFIED. Appellant Otello Santiano y Leonida is found GUILTY beyond
reasonable doubt of Homicide and is sentenced to suffer the penalty of an indeterminate
sentence from eight (8) years and one (1) day of prision mayor as minimum to fourteen
(14) years, eight (8) months, and one (1) day of reclusion temporal as maximum. Appellant
Santiano is further ordered to pay the heirs of the victim the amounts of P50,000.00 as
death indemnity, P31,845.00 as funeral and burial expenses, P25,000.00 as exemplary
damages, P30,000.00 as attorney's fees and P1,000.00 per appearance of counsel.
Appellant Santiano shall be credited with the full extent of his preventive imprisonment.
Appellant Rolando Dagani y Reyes is hereby ACQUITTED. TIAEac
SO ORDERED.
Panganiban, C.J., Ynares-Santiago, Callejo, Sr. and Chico-Nazario, JJ., concur.
Footnotes
1.Penned by Associate Justice Juan Q. Enriquez, Jr., with Associate Justices Eugenio S.
Labitoria and Mariano C. Del Castillo, concurring, CA rollo, pp. 203-210.
2.Records, p. 1.
3.CA rollo, pp. 88-89.
4.Id. at 121.
5.Id. at 209.
6.Rollo, pp. 6-7.

7.Id. at 3-87.
8.CA rollo, pp. 121-122.
9.Id. at 123-124.
10.People v. Dela Cruz, 400 Phil. 872, 878 (2000); Cabuslay v. People, G.R. No. 129875,
September 30, 2005, 471 SCRA 241, 253.
11.People v. Dela Cruz, supra note 10; Toledo v. People, G.R. No. 158057, September 24, 2004,
439 SCRA 94, 109; People v. Escarlos, 457 Phil. 580, 596 (2003).
12.People v. Dela Cruz, supra note 10.

13.People v. Escarlos, supra note 11, at 595; People v. Sarmiento, G.R. No. 126145, April 30,
2001, 357 SCRA 447, 457.
14.People v. Escarlos, supra note 11, at 596; People v. Damitan, 423 Phil. 113, 123 (2001).
15.CA rollo, p. 206.
16.People v. Escarlos, supra note 11, at 597; People v. Calabroso, 3 94 Phil. 658, 670 (2000);
People v. Maalat, 341 Phil. 200, 206 (1997).
17.People v. Escarlos, supra note 11, at 597; People v. Rabanal, 402 Phil. 709, 715 (2001).
18.People v. Escarlos, supra note 11, at 597; People v. Geneblazo, 4 14 Phil. 103, 110 (2001).
19.People v. Escarlos, id.
20.Cabuslay v. People, supra note 10, at 262.
21.See Senoja v. People, G.R. No. 160341, October 19, 2004, 440 SCRA 695, 708; People v.
Escarlos, supra note 11, at 597; People v. Ubaldo, 419 Phil. 718, 730 (2001); People v.
Basadre, G.R. No. 131851, February 22, 2001, 352 SCRA 573, 585; People v. More, 378
Phil. 1153, 1161 (1999); People v. Real, 367 Phil. 524, 535-536 (1999).
22.CA rollo, p. 51.
23.Id. at 75.
24.Id.
25.Id. at 120.
26.See People v. Escarlos, supra note 11; People v. Dela Cruz, supra note 10, at 879; People v.
Babor, 330 Phil. 923, 930-931 (1996).
27.Toledo v. People, supra note 11, at 110.
28.Senoja v. People, supra note 21, at 703; People v. Noay, 357 Phil. 295, 308 (1998).

30.Id. at 125, citing, e.g., People v. Mojica, 42 Phil. 784.
31.People v. Catbagan, G.R. Nos. 149430-32, February 23, 2004, 423 SCRA 535, 553; People v.
Peralta, 403 Phil. 72, 89 (2001); People v. Ulep, 395 Phil. 78, 87 (2000); People v. Belbes,
389 Phil. 500, 509 (2000).
33.See People v. Catbagan, supra note 31, at 554.
34.Supra note 31.
35.Id. at 92.
36.CA rollo, p. 88.
37.Id. at 207-208.
38.See People v. Legaspi, 387 Phil. 108 (2000).
39.Crisostomo v. Sandiganbayan, G.R. No. 152398, April 14, 2005, 456 SCRA 45, 73; People v.
Agda, 197 Phil. 306, 314 (1982).
40.Crisostomo v. Sandiganbayan, supra note 39, at 73-74; People v. Dorico, 153 Phil. 458, 475
(1973).
41.Crisostomo v. Sandiganbayan, supra note 39, at 74.
42TSN, Hearing of June 18, 1990, p. 10.

43.CA rollo, pp. 87-88.
44.Id. at 208.
45.People v. Caratao, 451 Phil. 588, 606-607 (2003); People v. Gonzalez, Jr., 411 Phil. 893, 915
(2001); People v. Cabodoc, 331 Phil. 491, 510 (1996); People v. Malabago, 333 Phil. 20,
34 (1996).
46.People v. Gonzalez, Jr., supra.
47.Id.; People v. Cadag, 112 Phil. 314, 319 (1961); People v. Ardisa, 154 Phil. 229, 243 (1974);
People v. Genial, G.R. No. 105692, December 7, 1993, 228 SCRA 283, 291.
48.People v. Gonzalez, Jr., supra note 45, at 915-916; People v. Caratao, supra note 45, at 607;
Luces v. People, 443 Phil. 636, 646 (2003).
49.People v. Gonzalez, Jr., supra note 45, at 916; Sison v. People, 320 Phil. 112, 135 (1995);
People v. Abapo, G.R. Nos. 93632-33, December 28, 1994, 239 SCRA 469, 479.
50.People v. Gonzalez, Jr., supra note 45, at 917; People v. Manalo, G.R. No. L-55177, February
27, 1987, 148 SCRA 98, 108.
51.People v. Gonzalez, Jr., supra note 45.
52.People v. Caratao, supra note 45, at 607; People v. Gonzalez, Jr., supra note 45; People v.
Cabodoc, supra note 45, at 510-511; People v. Malabago, supra note 45.
53.See People v. Ulep, supra note 31, at 88.
54.People v. Caratao, supra note 45, at 608; People v. Fernandez, 434 Phil. 224, 239 (2002).
55.See People v. Tabion, G.R. No. L-32629, October 23, 1979, 93 SCRA 566, 572; People v.
Madrid, 88 Phil. 1, 15 (1951); ANTONIO L. GREGORIO, FUNDAMENTALS OF CRIMINAL
LAW REVIEW 114 (1997).
56.People v. Malinao, G.R. No. 128148, February 16, 2004, 423 SCRA 34, 53; People v.
Solamillo, 452 Phil. 261, 281 (2003).
57.TSN, April 20, 1990, pp. 1-2; TSN April 30, 1990, pp. 1-2; Exhibit "X;" RTC Decision, CA rollo, p.
59; Formal Offer of Evidence of the Prosecution dated April 26, 1990, p. 6.
58.Moreover, under Article 2208 of the Civil Code, attorney's fees may be recovered when
exemplary damages have been awarded. See, e.g., Nueva España v. People, G.R. No.
163351, June 21, 2005, 460 SCRA 547, 560.
59.People v. Ibañez, 455 Phil. 133, 166-167 (2003).
60.Nueva España v. People, supra note 58, at 558; People v. Malinao, supra note 56, at 55.

Second Division: Decision Decision

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Second Division: Decision Decision

Uploaded by

Copyright:

Available Formats

SECOND DIVISION

[G.R. No. 141066. February 17, 2005.]

LADONGA petitioner, vs . PEOPLE OF THE PHILIPPINES,

Acts committed contrary to the provisions of Batas Pambansa Bilang 22. 2

CD Technologies Asia, Inc. © 2020 cdasiaonline.com

3. In Criminal Case No. 7070, with (sic) an imprisonment of one year

With Costs against the accused.

Conspiracy must be established, not by conjectures, but by positive and conclusive

To be sure, conspiracy is not a harmless innuendo to be taken lightly or

Criminal liability cannot be based on a general allegation of conspiracy,

1. Penned by Justice Buenaventura J. Guerrero (now retired) and concurred in by Justices

2. Original Records, pp. 1-2.

7. TSN of December 3, 1991, Testimony of Alfredo Oculam, pp. 4-7.

8. Id., pp. 16-21.

CD Technologies Asia, Inc. © 2020 cdasiaonline.com

15. Original Records, p. 124.

18. Rollo, p. 133.

20. No. 5952, October 24, 1911, 20 Phil. 379.

21. No. 9268, November 4, 1914, 28 Phil. 305.

25. Note No. 19, supra.

27. Note No. 21, supra.

29. ART. 17. Principals. — The following are considered principals:

1. Those who take a direct part in the execution of the act;

2. Those who directly force or induce others to commit it;

31. G.R. No. 134172, September 20, 2004.

1. If the principal penalty imposed be prision correccional or arresto and fine, he

2. When the principal penalty imposed be only a fine, the subsidiary

3. When the principal penalty imposed is higher than prision correccional no

4. If the principal penalty imposed is not to be executed by confinement in a

CD Technologies Asia, Inc. © 2020 cdasiaonline.com

[G.R. No. 93028. July 29, 1994.]

PHILIPPINES plaintiff-appellee, vs. MARTIN SIMON y

1. REMEDIAL LAW; EVIDENCE; TESTIMONY OF WITNESS; WHEN MADE

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

Herein accused-appellant Martin Simon y Sunga was charged on November 10,

xxx xxx xxx

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

Appellant then asseverates that it is improbable that he would sell marijuana to a

xxx xxx xxx

xxx xxx xxx

'SECTION 20. Application of Penalties, Con scation and Forfeiture

5. 750 grams or more of indian hemp or marijuana.

'Otherwise, if the quantity involved is less than the foregoing

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

Also, if the privileged mitigating circumstance happens to be the minority of the

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

4. TSN, April 6, 1989, 5-32.

5. Ibid., May 5, 1989, 2.

7. Ibid., May 24, 1989, 21-24.

8. Ibid., June 14, 1989, 3-22.

10. Ibid., July 17, 1989, 8-16.

11. Ibid., August 18, 1989, 36, 41-43, 47-49.

13. Brief for Accused-Appellant, 3; Rollo, 54.

15. Original Record, 2.

20. TSN, May 5, 1989, 5.

21. Sec. 3(m), Rule 131, Rules of Court.

24. Ibid., id., 12; Exhibit M, Folder of Exhibits.

28. Brief for Accused-Appellant, 6; Rollo, 57.

29. TSN, May 5, 1989, 7.

31. Brief for Accused-Appellant, 6-7; Rollo, 57-58.

32. Exhibit F, Folder of Exhibits.

35. TSN, May 5, 1989, 11.

36. Sec. 12 (1), Art. III, 1987 Constitution.