PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELMEDIO CAJARA, accusedappellant. DECISION BELLOSILLO, J.

: ELMEDIO CAJARA alias Elming is before us on automatic review after having been found guilty by the trial court of Qualified Rape and sentenced to death. The Information alleged that on 30 May 1994 in Barangay Serum, Basey, Samar, the accused Elmedio Cajara, a brother-in-law of Marita B. Cajote and husband of her older sister, by means of force and intimidation, willfully and feloniously had carnal knowledge of her against her will and consent. On 16 March 1995 the trial court found the accused guilty of rape as defined in Art. 335 of The Revised Penal Code in relation to Sec. 11 of RA 7659, and sentenced him to death. On 18 May 1994 16-year old Marita Cajote, a resident of Manila, arrived in Basey, Samar, and stayed with her sister Marie. The following day, Marita was fetched by another sister, Merly Tagana also known as Meling, and by the latter‟s husband, accused Elmedio Cajara also known as Elming. Upon being told by Meling that they would be going to Sulod to get copra, Marita went with Meling and Elming to the couple‟s house in Sitio Catuhaan in Barangay Serum. Since then until 30 May 1994 Marita stayed with Meling and Elming together with their two (2) small children in a house consisting of only one room without any partition. In the evening of 30 May 1994 complaining witness Marita Cajote slept at one end of the room with the two (2) children, with Meling and Elming at the other end. At about two o‟clock the following morning Marita was awakened by the weight of accused who was already on top of her. The accused who was holding a bolo told her to keep quiet or he would kill her. He then placed his bolo aside and held Marita‟s hands with his right hand. With his left hand accused lowered Marita‟s pants as well as her panty down to her knees. Marita shouted for help but her sister Meling just wrapped her head with their mosquito net and pretended to be asleep. Marita struggled continuously against the advances of the accused but he was much stronger, while she was getting weak. The accused first inserted his fingers into Marita‟s private part and later succeeded in inserting his penis into her vagina. Meling then pulled Elming away from Marita and hit Elming in the eye. Elming boxed Meling on the mouth and kicked her when she fell on the floor. Elming went back to Marita and continued with his beastly acts. By this time, Marita was already too weak to resist. Elming inserted his fingers first and then his penis into her private organ. The older of the two (2) children of Meling cried. Meling who was holding her youngest child helplessly watched the accused rape her younger sister. After satisfying his lust, the accused asked Marita to go away with him. Marita cried and dressed herself. When accused went to the door, she jumped out of the window and ran away, but the accused chased her and after overtaking her threatened to kill her if she would return to their house. So Marita pretended to submit to his wishes. Fortunately she found an opportunity to hide

herself from the accused. Then she dashed for safety to the house of her sister Marie and then to another sister Lilia. Marita revealed to both of them what the accused had done to her. But her sisters advised her not to file a criminal case against their brother-in-law for fear that he might kill all of them. But Marita went to the chief of the “barangay tanod" whom she called Mano Henry, who accompanied her to the barangay captain. The barangay captain, Rolando Jaingue, also made the same advice against filing a criminal charge against the accused as the latter might attack and kill them. The accused was known in the community to have killed six (6) people. Finally, barangay captain Jaingue issued an indorsement of the case to the Philippine National Police stationed in Basey, Samar. When physically examined by Dr. Danilo Fami, Municipal Health Officer of Basey, Samar, Marita was found to have a healed laceration of her hymen at 4 o‟clock position. In his defense, the accused Elmedio Cajara denied the charge against him. He alleged that Marita was the maternal half-sister of Meling, his common-law wife; that at around 6 o‟clock in the evening of 30 May 1994 he was in his house with Meling and their two (2) children when Marita arrived and invited them for a drink; that since he was then busy gathering tuba he was able to join them only at around 8 o‟clock until 11 o‟clock that evening after which he went to sleep. However, at around 2 o‟clock in the morning he was awakened by the quarrel of his wife and Marita; that when his wife asked Marita why the latter placed her leg over him, Marita answered that she did not know; and, that Meling ordered her to get out of their house, but before she left Marita said that she would file a case against him who was on parole. Merly Tagana alias Meling, common-law wife of the accused, corroborated his testimony. When asked on direct examination why her sister Marita would file a rape charge against her husband, Meling denied that her husband raped Marita, saying that "it was not the mistake of (her) husband because he is a man and that she is a girl." Persuaded beyond reasonable doubt that Elmedio Cajara did rape 16-year old Marita Cajote on 30 May 1994 in front of his common-law wife and his two small children, the trial court convicted him as charged and sentenced him to death. In his Brief the accused faults the trial court for giving credence to the testimony of the rape victim, Marita Cajote, despite its failure to meet the test of moral certainty; that the testimony of Merly Tagana, his common-law wife, that there was no rape should have been given more weight than the testimony of Marita Cajote because Meling being a half-sister of Marita would have sympathized with her if the rape incident was true; and, that Marita‟s claim that she was a virgin before she was raped was belied by the testimony of the medico-legal officer that there was a laceration which could have healed even before the rape incident. The Office of the Solicitor General, in its brief, belittles the accused for failing to show any compelling or justifiable reason to set aside his conviction for rape and his penalty of death, citing Art. 335 of The Revised Penal Code, as amended by RA 7659, the relevant portion of which states:

“The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: x x x x 3. when rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity. The Solicitor General is correct in finding the accused guilty of rape. The bare denial of the accused and his common-law wife cannot overcome the categorical testimony of the victim. Denial when unsubstantiated by clear and convincing evidence is a negative and self-serving evidence which deserves no greater evidentiary value than the testimony of a credible witness on affirmative matters. No woman, especially of tender age, would concoct a story of defloration, allow an examination of her private parts and thereafter pervert herself by being subjected to a public trial if she was not motivated solely by the desire to have the culprit apprehended and punished. A complainant‟s act in immediately reporting the commission of the rape has been considered by this Court as a factor strengthening her credibility. The immediate decision of Marita to report the crime to her sisters and the barangay officials as well as to face police authorities and submit to a medical examination are a mute but eloquent testimony of the truth of her charge against accused. We agree with the finding of the trial court that Marita‟s positive identification of the accused as the person who raped her was given in a categorical, straightforward and spontaneous manner which rendered it worthy of faith and belief Q: While you were asleep on May 30, 1994, at 2:00 in the morning, can you still recall if you were awakened and why? A: I was awakened because I was surprised. Q: Why were you surprised? A: Because he was on top of me. Q: Who was the person on top of you? A: Elming Cajara. Q: How do you know that it was Elming? A: Because there was light for the whole morning. Q: Where was this light being placed? A: On the altar. Q: How far was the light to the place where you were lying down? A: About two meters.

ma'am x x x x He said keep quiet x x x x If you will make a noise I will kill you. Q: Where is this bolo you are referring to? A: Near the head he was holding. Q: And when Elming Cajara warned you not to make any noise did you observe if he has (sic) any weapon with him? A: Yes he has x x x x Sundang. Q: What else? A: I shouted x x x x Help. Q: He was holding the bolo with what hand? A: Right hand. ma'am. Q: Your elder sister? A: Yes.Q: Did Elming say anything to you when he was on top of you? A: Yes. A: I kept on asking for help because he was holding my two hands over my head. Q: How about his left hand? . Q: With what hand and how did he hold your two hands? A: His right hand. Q: About you when you shouted. Q: Where was the bolo? A: Near the head x x x x Elming Cajara at the time he slept he has a bolo with him. Q: Who is this Manding you are referring to? A: Meling. help Manding. Q: With what hand he was holding your hands as he was holding the bolo? A: When he told me not to make any noise he was holding my two hands. what else did you do while he was on top of you.

ma'am. what did your Manding do? A: After I was shouting for help for a long time. Q: How about your panty. Q: What did you do when Elming inserted his finger into your vagina? A: I was trying to resist (from) him but I could not as he was holding my hands. ma'am. Q: Do (sic) you have panty at that time? A: Yes. what was Elming doing at that time? A: He inserted his finger into my vagina after which he inserted his penis into my vagina. what happened next? A: Meling fell because she was punched by Elming x x x x She was hit on her mouth and she was kicked x x x x Q: After kicking Meling what did Elming do? A: After Elming kicked Meling and I was able to put on my panty Elming came back. was it undressed? A: Yes. Q: What was being undressed? (sic) A: My maong pants x x x x Garterized. Q: While he was inserting his penis to your vagina. what did you do? A: I was trying to resist and shouting and I was weak x x x x Q: After Meling pulled her husband. Q: Up to what portion of your body were you undressed? A: Middle part of my legs. Manding grabbed Elming from me and Meling punched Elming hitting his eye. Q: As you were shouting for your Manding to help you. what did Elming do to you? .A: Undressing me. Q: When Meling grabbed and punched Elming. Q: When Elming went back to you.

The trial court in the case at bar imposed the penalty of death upon the accused after taking into account the following circumstances. It should be emphasized however that since the Information charged only one offense. this relationship taken together with the want of logic in the declarations of the witness. While relationship between the accused and his witness is not necessarily detrimental to the former‟s line of defense.A: x x x x he undressed me again x x x x he abused me again x x x x he was inserting his finger and penis into my vagina.. ma'am x x x x Q: For how many times have (sic) he inserted his penis? A: Twice. the minority of Marita Cajote who was only 16. even if the evidence showed a second act of forcible intercourse. she was no longer a virgin. The opinion of the trial court as to who of the witnesses should be believed is entitled to great respect on the oft-repeated rationale born of judicial experience that the trial judge who heard the witnesses testify and had the occasion to observe their demeanor on the stand was in a vantage position to determine who of the witnesses deserve credence. The assertion of the accused that Marita was no longer a virgin when she was raped will not exculpate him from criminal liability. wellsettled is the rule that prior sexual intercourse which could have resulted in hymenal laceration is not necessary in rape cases for virginity is not an element of rape. Further. Although she testified that the accused did not rape her sister. Self preservation is still recognized as the most fundamental human instinct. she could have already lost her virginity during the first rape. the accused inserted his organ into her private part. Merly Tagana contradicted the testimony of the accused and herself twice when she stated that Marita slept in the house with her and the accused on 29 May 1994. and after awhile. i. the night before the rape. In the case of Merly Tagana. We have noted that in some instances it was but natural for witnesses not to come to the victim‟s rescue for fear of their lives. The trial court found evident discrepancies in Merly Tagana's testimony which cannot but raise wellfounded and overriding doubts on her testimony. yields to the conclusion that her testimony is not credible. The argument of the accused is untenable that the testimony of his common-law wife that there was no rape should have been believed by the trial court because she was Marita‟s half-sister who would naturally protect Marita‟s honor if she was indeed raped. especially when threatened with harm should they do so. After inserting his fingers. when Marita was raped for the second time. The records show that Marita was sexually abused twice.years . she complained on the witness stand that it was not the mistake of the accused to have done what he did because he was a man and Marita was a girl. conviction for one rape was proper. accused repeated the sexual abuse. Q: Was he able to insert again his penis into your vagina? A: Yes.e. she is also the common-law wife of the accused. Clearly. Not every witness to a crime can be expected to act reasonably and conformably to the expectation of mankind. although she is half-sister to Marita.

. In People v. The Constitution guarantees the right of every person accused in a criminal prosecution to be informed of the nature and cause of the accusation against him. When the woman is under twelve years of age or is demented. and. the accused cannot be convicted of rape under pars. 2. were mere common-law husband and wife and were not legally married at the time of the rape. a denial of due process if he is convicted of an offense other than that charged in the complaint or information. consequently. 1.old at the time of the rape. relative by consanguinity or affinity within the third civil degree or the common-law spouse of parent of the victim x x x x 3. he cannot be convicted of rape . 11 of RA 7659 amending Art. 335. relationship by affinity where the victim was said to be the sister of the common-law wife of the accused. The main purpose of requiring the various elements of a crime to be set out in an information is to enable the accused to suitably prepare his defense. finally. In this case. When the victim is under eighteen (18) years of age and the offender is a parent. it is fundamental that every element of the offense must be alleged in the complaint or information. the accused can only be convicted of simple rape punishable by reclusion perpetua. of The Revised Penal Code. 3. when the information alleges rape by force and intimidation under par. Art. 335 of The Revised Penal Code. When the rape is committed in full view of the husband. sister of the victim Marita Cajote. The accused and the victim cannot be said to be related by affinity within the third civil degree at the time of the commission of the crime. and. since the accused was charged with rape qualified by minority and relationship under the first attendant circumstance where the death penalty is imposable. The crime of rape shall be punished by reclusion perpetua x x x x The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. Hence. 2 or 3 of the same Article. By using force or intimidation. Morena this Court explained that it would be a denial of the accused of his right to be informed of the charges against him and. any of the children or other relatives within the third degree of consanguinity x x x x Contrary to the ruling of the trial court and the stand of the Solicitor General. When the woman is deprived of reason or otherwise unconscious. parent. It was error for the trial court to impose the penalty of death. which took effect 31 December 1993. state: When and how rape is committed.Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. ascendant. the fact that the rape was committed by the accused in the full view of his wife and children. guardian. stepparent. Neither can the accused be convicted of qualified rape on the basis of the circumstance that the rape was committed in full view of the relatives of the victim within the third degree of consanguinity because this qualifying circumstance was not pleaded in the Information or in the Complaint against the accused. Thus. The relevant portions of Sec. evidence for the prosecution clearly showed the lack or absence of such circumstance to qualify the rape because the accused and Merly Tagana. Although the circumstance of relationship by affinity within the third civil degree was alleged in the Information.

the accused having been convicted of frustrated murder in 1975 and of homicide. Panganiban. Vitug. we award the victim Marita Cajote an indemnity of P50. Melo. the Decision of the trial court convicting the accused ELMEDIO CAJARA alias Elming of Qualified Rape is MODIFIED to the effect that he is convicted instead only of Simple Rape and is sentenced to suffer the penalty of reclusion perpetua. frustrated homicide. Quisumbing.000. Gonzaga-Reyes. in Criminal Case No. convicting accused-appellant of the crime of Murder and sentencing him to suffer the penalty of reclusion perpetua and to pay the heirs of the deceased the sum of P50. The records show that the crime was aggravated by reiteracion under Art.. plaintiff-appellee. He was granted conditional pardon by the President of the Philippines on 8 November 1991. J. vs.000.qualified by the third attendant circumstance of commission of rape within the full view of the relatives of the victim. In People v.000.. 10. par. PEOPLE OF THE PHILIPPINES. par. it shall be applied regardless of the mitigating or aggravating circumstances attendant to the crime.00. We note that the trial court did not award any civil indemnity. Reiteracion or habituality under Art.. Branch 9. such as in the instant case.J. Costs de oficio. and De Leon. Kapunan. Buena. herein accused can be convicted only of simple rape and the imposable penalty therefor is reclusion perpetua.00. Ynares-Santiago.00 and moral damages of P50. SO ORDERED. Davide.00 and moral damages of another P50. Pardo. WHEREFORE. As already discussed.00 as death indemnity. Where the law prescribes a single indivisible penalty. herein cited. since this was not alleged in the Information. Cajote civil indemnity of P50.00. 14. 10. JJ. is present when the accused has been previously punished for an offense to which the law attaches an equal or greater penalty than that attached by law to the second offense or for two or more offenses to which it attaches a lighter penalty. He is further ordered to pay the victim Marita B. Prades the Court resolved that moral damages may additionally be awarded to the victim in the criminal proceeding in such amount as the Court may deem just without the need for pleading or proof of the basis therefor. trespass to dwelling..: This is an appeal from the Decision of the Regional Trial Court of Cagayan.000. DECISION YNARES-SANTIAGO. Puno. . of The Revised Penal Code. 14. Jr. Pursuant to current jurisprudence and without need of further proof. Mendoza. C. concur. accused-appellant. Jr.000. Purisima. 09-700.000. illegal possession of firearms and murder sometime in 1989 where his sentences were later commuted to imprisonment for 23 years and a fine of P200. PEPITO (Piting) SEBASTIAN y SINDOL.

He thereafter entered and sought cover inside the house of Cesar Dumaoal. The bullet tore through the abdomen of the victim. In the instant appeal. the Court hereby finds the accused guilty beyond any reasonable doubt of the crime charged and sentences him to reclusion perpetua. however. He is further directed to indemnify the heirs of the victim in the amount of P50. the sudden and unexpected attack on the unarmed victim clearly shows that the killing was attended by the qualifying circumstance of treachery. the operator played a loud rock song. Here. At about 8:00 o‟clock of the same evening. accused-appellant fled. The alleged animosity between the victim and accused-appellant. he saw the wounded victim being carried by a certain Celso Upano. the trial court correctly appreciated the qualifying circumstance of treachery. accused-appellant contends that the trial court erred in appreciating the qualifying circumstances of treachery and evident premeditation and that he should be convicted only of homicide. without risk to himself arising from the defense which the offended party might make. On March 14. At that instant. In the case at bar. The victim‟s group decided to stay inside the house of Cesar Dumaoal.000. He testified that he was on the dance floor with a lady companion when he heard that somebody was shot. rendering him utterly defenseless at the time of the assault. employing means. accused-appellant rushed to the victim and shot him.The facts as narrated by the prosecution witnesses are as follows: On the night of June 3. Cagayan. accused-appellant evidently timed his attack with the sudden blast of music. accused-appellant denied the accusation against him. The essence of treachery is the sudden and unexpected attack without the slightest provocation on the part of the person being attacked. thus he was advised by his friends to go home. When he ran towards the scene of the disturbance. In the course of the celebration. accused-appellant and his cohorts blocked their way. . What is decisive is that the execution of the attack made it impossible for the victim to defend himself or to retaliate. Thereafter. the trial court rendered the assailed decision. Then. The shot was therefore a complete surprise to the victim. 1991. No costs. method or forms in the execution thereof which tend directly and especially to insure its execution. accused-appellant approached them and told the victim that he had been wanting to see him. and they were told to stay in the mess hall. will not preclude treachery because said qualifying circumstance may still be considered even when the victim was forewarned of danger to his person. as well as their encounter which preceded the shooting incident. when the victim and his companions were about to enter the gate of the host‟s house. the dispositive portion thereof states: WHEREFORE. On the other hand. a certain Cesar Dumaoal hosted a pre-wedding celebration in his house in Buguey. 1997. Hence. causing his death.00. The victim sensed danger. accused-appellant entered the house of Cesar Dumaoal. for all the foregoing considerations. When the victim‟s group was about to go home. It is well settled that there is treachery when the offender commits any of the crimes against persons. The victim and the accused-appellant were among those invited to attend the celebration.

000.000. as to the aggravating circumstance of evident premeditation. and within the jurisdiction of this Honorable Court. the above-named accused.00. in Criminal Case No. murder was punishable by reclusion temporal in its maximum period to death.00. there is merit in accusedappellant‟s contention that said circumstance should not have been considered in the case at bar. with treachery and evident premeditation.000. stab and wound TEODORICO DELA CRUZ in the different parts of the body. (3) a lapse of time between the decision to commit the crime and its actual execution enough to allow the accused to reflect upon the consequences of his acts. 1995.However. thus: That sometime on December 31. finding accused-appellant Pepito (Piting) Sebastian y Sindol guilty beyond reasonable doubt of the crime of Murder. At the time of the commission of the crime on June 3. the crime committed is still murder in view of the presence of the qualifying circumstance of treachery. with murder in an information which reads. Since neither mitigating nor aggravating circumstances were proved. 09-700.00. inflicting upon him several wounds on the chest. The elements of evident premeditation are: (1) a previous decision by the accused to commit the crime. unlawfully and feloniously. said accused having inflicted said wounds upon Teodorico dela Cruz.: Accused-appellant Gilbert Dadivo y Mendoza was charged in Criminal Case No. WHEREFORE. reclusion perpetua. (2) an overt act or acts manifestly indicating that the accused has clung to his determination. J. i. the heirs of the deceased are entitled to moral damages in the amount of P50. Branch 35. plaintiff-appellee. assault. in view of all the foregoing.. In addition to the civil indemnity of P50. PEOPLE OF THE PHILIPPINES. Branch 9. armed with a bladed weapon. did then and there willfully. sentencing him to suffer the penalty of reclusion perpetua and ordering him to pay the heirs of the deceased the sum of P50. Nevertheless. which needs no proof considering that the conviction of accused-appellant for the crime charged is sufficient to justify said award. and as a result thereof. accused-appellant. 352064 before the Regional Trial Court of Santiago City. As there is neither evidence of planning or preparation to kill nor of the time when the plot was conceived. Philippines. DECISION YNARES-SANTIAGO. the said . GILBERT DADIVO y MENDOZA. vs. evident premeditation cannot be considered in the instant case.000. the Decision of the Regional Trial Court of Cagayan. the penalty should be imposed in its medium period. in the City of Santiago. 1991. SO ORDERED. attack.00 as death indemnity is AFFIRMED with the MODIFICATION that accusedappellant is further ordered to pay moral damages in the amount of P50.e.

1995. When he got back to the group. Sonny Ocampo. “may tama ako. the store-owner refused to let them drink in front of the store. instead of returning to his seat. He returned shortly and stood beside Galot. Teodorico dela Cruz refused to let him leave. 2000. were engaged in a drinking session at the house of Rudy dela Cruz in Calaocan. accused-appellant lunged at Teodorico dela Cruz and stabbed him on the chest with a knife wrapped in handkerchief. Santiago City. However. Anthony Galot and Raul Espiritu. the trial court rendered a decision as follows: WHEREFORE. At 4:00 in the afternoon of December 31. accused-appellant and his friends. Teodorico dela Cruz. Afterwards. Teodorico dela Cruz then tried to reach for a knife on the table.000. On February 8. At 6:00 in the evening.00 as actual damages and the sum of P50. Accused-appellant had a different version of the incident. he went to a nearby store to buy candy when he saw Sonny Tejada.Teodorico dela Cruz died instantly due to intra thoracic hemorrhage due to penetrating wound on both right and left auricle of the heart. after which trial ensued. the sum of P200. Without any warning. they were joined by Sonny Ocampo. so he held accused-appellant’s leg and cursed him. invited them to drink at his brother’s house.” so to speak. prompting him to “jump the gun. accused-appellant went out of the house to relieve himself. In this appeal. Ocampo and Galot were seated on one long bench while Calimlim and Teodorico dela Cruz were seated on the opposite bench. He narrated that at 3:00 in the afternoon. The conversation was merry and light. he informed Teodorico dela Cruz that he would like to leave as he had enough. Accused-appellant pleaded “not guilty” on arraignment. Calimlim had his right arm on Teodorico dela Cruz’ shoulder who had his left arm on Calimlim’s shoulder. Anthony Galot.00 as consequence of his death and cost against the accused. They drank gin and ate appetizers. Ben Calimlim and the victim Teodorico dela Cruz. Accused-appellant.000. Teodorico dela Cruz weakly said. accused-appellant stabbed Teodorico dela Cruz a second time. and stab Teodorico dela Cruz with his own fan knife. Before anyone could react. whom he invited for a drink. he had difficulty keeping his balance. accused-appellant contends: .000. Accused-appellant left the group at 6:00 in the evening and went out of the house. the Court finds the accused GILBERT DADIVO y MENDOZA GUILTY beyond reasonable doubt of the crime of MURDER and hereby sentences him [to] the penalty of RECLUSION PERPETUA and ordered (sic) to indemnify the heirs of Teodorico dela Cruz the sum of P100.00 as moral damages. Between the two benches was a small table on which their appetizers and drinks were set. As he was already intoxicated and feeling dizzy. Accused-appellant saw this as a threatening move. who was nearby.” He died before reaching the hospital.

There is no way of knowing the time when accused-appellant decided to stab Teodorico dela Cruz. Likewise. are insufficient. however. it must be sufficiently proven by evidence of outward acts showing the intent to kill. the trial court stated that “[i]t is impossible for Dadivo to stab dela Cruz without any compelling reason at all. In the absence of clear and positive evidence. It bears reiterating that a qualifying circumstance such as evident premeditation must be proven as clearly as the crime itself. every element thereof must be shown to exist beyond reasonable doubt and cannot be the mere product of speculation. Accused-appellant argues that the prosecution failed to prove the qualifying circumstance of evident premeditation. In the case at bar. The trial court.” The trial court surmised that “Teodorico dela Cruz might have slighted Dadivo during the drinking spree. and (3) sufficient lapse of time between the determination and execution to allow him to reflect upon the consequences of his act. qualified by treachery and evident premeditation. no matter how logical and probable. II THE COURT A QUO ERRED IN NOT CONSIDERING THE MITIGATING CIRCUMSTANCE OF INTOXICATION IN FAVOR OF THE ACCUSED. (2) an act manifestly indicating that the culprit has clung to his determination. the premise that accused-appellant might have been slighted by Teodorico dela Cruz is not supported by any evidence. disbelieved his theory. one cannot infer at all that the act of leaving the house presumably to relieve himself is . finding that he was the unlawful aggressor. it found accused-appellant guilty of murder. If the time when accused-appellant decided to stab Teodorico dela Cruz cannot be determined with certainty. We agree that the elements of evident premeditation have not been established in this case. By invoking self-defense. In fact.” The trial court’s reasoning may be logical. hence it is speculative. mere presumptions and inferences of evident premeditation. accused-appellant in effect admitted authorship of the killing of Teodorico dela Cruz. Hence. the second requirement is absent. However. The first requirement therefore has not been met. Corollarily. The requirements to prove evident premeditation are the following: (1) the time when the offender determined to commit the crime. The premeditation to kill must be plain and notorious. then indeed one cannot infer that he clung to his determination to kill Teodorico dela Cruz.I THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED GUILTY FOR THE CRIME OF MURDER DESPITE THE INSUFFICIENCY OF EVIDENCE ADDUCED TO PROVE THE QUALIFYING CIRCUMSTANCES THERETO.

calculation. even if proved. the knife was concealed in a handkerchief. In fact. Therefore. it must appear not only that the accused decided to commit the crime prior to the moment of its execution but also that this decision was the result of meditation. evident premeditation cannot be considered. Besides. For the qualifying circumstance of treachery to be appreciated. made it impossible for the victim to defend himself or to retaliate. The settled rule is that treachery can exist even if the attack is frontal if it is sudden and unexpected.the overt act manifesting his determination to stab Teodorico dela Cruz. In seeking to mitigate his sentence. and (2) the means of execution is deliberately or consciously adopted. is belied by testimonial evidence and by the location of the wounds. however. Accused-appellant’s act of leaving the house was too short a time for him to meditate or reflect upon the consequences of his decision to stab dela Cruz. To warrant a finding of evident premeditation. He was seated on a bench. will not have any effect as far as the penalty is concerned. accused-appellant alleges that he was intoxicated when he committed the killing. the food. There is no evidence that Teodorico dela Cruz was attacked from behind. This is bolstered by the location of the wounds which were both on the chest. the evidence indicates that the attack against Teodorico dela Cruz was frontal. Rather. From all indications. disputes the trial court’s finding that treachery attended the commission of the crime. or persistent attempt. He could not have anticipated accused-appellant’s evil intention. the victim as well as his drinking companions only realized what was happening when the knife was uncovered after the first thrust was delivered. without the slightest provocation from a victim who is unarmed. This. two elements must concur: (1) the employment of means of execution which gives the person attacked no opportunity to defend himself or retaliate. giving the victim no opportunity to repel it or defend himself. As the Solicitor General aptly observed: . accused-appellant failed to prove that he was intoxicated. Before accused-appellant delivered the fatal first thrust. if the same is not habitual or subsequent to the plan to commit the felony. reflection. Teodorico dela Cruz was simply enjoying the drinks. Accused-appellant. Settled is the rule that the intoxication of the offender shall be taken into consideration as a mitigating circumstance when the offender has committed a felony in a state of intoxication. He failed to prove those conditions. His left arm was even on Calimlim’s shoulder. likewise. this circumstance. However. thereby qualifying the killing to murder. the talk and the company. Settled is the rule that when it is not shown how and when the plan to kill was hatched or what time had elapsed before it was carried out. The trial court found that accused-appellant attacked Teodorico dela Cruz from behind. What is decisive is that the execution of the attack. the circumstance of treachery was present. Even the third requirement is lacking.

. the trial court correctly granted the award of P50. is AFFIRMED with the MODIFICATION that the award for moral damages is reduced from P100. The award of P50.000. premised upon competent proof and on the best evidence obtainable by the injured party..000. inclusive of loss of earning capacity as well as funeral and burial expenses. Branch 35. concur.00 as actual damages. These actuations are hardly the acts of a man so inebriated that his will-power was impaired or that he could no longer comprehend the wrongfulness of his acts. the decision of the Regional Trial Court of Santiago City. Out of the amount awarded. JJ.. the trial court’s award of P200.00.00 as moral damages should be reduced to P50.00 to P4. and Austria-Martinez. xxx. there must likewise be an unbiased proof of the deceased’s average. There being neither mitigating nor aggravating circumstance that attended the killing. in view of the foregoing. WHEREFORE. the lesser of the two indivisible penalties shall be imposed. confessed to his parents what he did and asked them to surrender him to the police. Accused-appellant is. he ran home. finding Gilbert Dadivo y Mendoza guilty beyond reasonable doubt of murder and sentencing him to suffer the penalty of reclusion perpetua. Kapunan. therefore.000. However.000. the victim’s brother. only P4.e. A recovery of actual damages requires proof.00 per annum as a farmer and part-time construction worker. on the amount actually expended in connection with the death of the victim.e.500.000. pursuant to Article 63 (2) of the Revised Penal Code. On the matter of damages. i. guilty of murder. Teodorico dela Cruz’s widow. with a reasonable degree of certainty.000. Likewise. Vitug.000. A self-serving statement. Panabang. In People v...00 and the award for actual damages is likewise reduced from P200. the award of P100.00 as indemnity ex delicto for the death of Teodorico dela Cruz. i. we ruled: Indemnification for loss of earning capacity partakes of the nature of actual damages which must be duly proven.00 as indemnity ex delicto is AFFIRMED.. reclusion perpetua.500. penalized under Article 248 of the Revised Penal Code by reclusion perpetua to death. being unreliable.000. An award for loss earning capacity refers to the net income of the deceased. Jr. Davide. income. C. his total income net of expenses.00 representing funeral services was duly receipted.000. Rudy dela Cruz. Sinamar dela Cruz. (Chairman).J.Accused-appellant himself narrated that after stabbing the victim. testified on the funeral and burial expenses. not just gross.00 to P50. xxx [F]or lost income to be recovered. is improper. is not enough. testified that her husband was earning P26.00 in line with prevailing jurisprudence. On the other hand. SO ORDERED.

when Teresita Dano arrived and asked for his help. Teresita told Wilfredo that her husband. to come down so they could fight to the death. 1994. (“Kanaog diri kay magkamatay ta. Wilfredo saw the victim pacing back and forth in appellant‟s front yard. J. promulgated on July 25. and within the jurisdiction of this Honorable Court. Demosthenes Peralta. the above-named accused.”) Wilfredo tried to pacify the victim who kept repeating his challenge while striking his scythe on the ground. and Teresita Dano. herein appellant. 1579. armed with a scythe was shouting at appellant. 1994 at around 6:30 o‟clock in the evening. but to no avail. Margosatubig. The victim. Zamboanga del Sur. more or less. hack and stab his brother Emeterio Dano inflicting several mortal wounds causing his instantaneous death. appellant was arraigned and with the assistance of counsel de parte. vs. who was looking out of the window. Branch 29. as follows: “That on or about March 16.” On May 3. and imposing upon him the penalty of reclusion perpetua. at Tiguian. On arriving at appellant‟s house. Philippines. Margosatubig. Appellant also advised his younger brother to go home. unlawfully and feloniously. The prosecution‟s evidence established the following: On March 16. attacked his brother Alberto. for the death of his brother Emeterio Dano.PEOPLE OF THE PHILIPPINES. Margosatubig. with treachery and evident premeditation. SPO3 Jesus Reales of the Philippine National Police (PNP). finding appellant Alberto Dano y Jugilon guilty beyond reasonable doubt of murder. attack. pleaded not guilty to the charge. ALBERTO DANO y JUGILON. 1994. DECISION QUISUMBING. Emeterio. accused-appellant. at around half past six o‟clock in the evening. Zamboanga del Sur. Zamboanga del Sur. prosecution witness Wilfredo Tapian was resting in the house of a Neneng Miras in Tiguian. did. the Provincial Prosecutor of Zamboanga del Sur charged appellant with the crime of murder. widow of the victim. “Contrary to law with qualifying aggravating circumstances of evident premeditation and treachery. Wilfredo immediately rushed to appellant‟s house. then and there. wilfully.: On appeal is the decision of the Regional Trial Court of San Miguel. 1994. Trial on the merits then ensued. which was some one hundred meters away. but the latter . 1994. assault. The prosecution presented four witnesses: Wilfredo Tapian. On April 11. the barangay captain of Tiguian. The facts of this case are gleaned from the records. in the latter‟s house. a carpenter. in Criminal Case No. plaintiff-appellee.

refused to listen. Appellant claimed that he acted in self-defense and in defense of his family.” The victim‟s widow admitted that the scythe. The latter examined the victim‟s body. Suddenly. was informed by Wilfredo and a certain Fernando Teves that the Dano brothers were quarreling. The defense presented appellant and his spouse as its witness. and read into the records without objection by the defense. he looked out the window and saw his brother Emeterio outside. he met appellant. secondary to multiple hacking wounds. He noticed that the body bore several hacking and slashing wounds. Emeterio suddenly leaped at him and attacked him with the scythe. which her late husband carried on that fateful day. March 16.” (“Boy kanang diha kay magpatay ta”) At first. Early in the morning of the next day. Instead. The necropsy report established that the cause of death was acute blood loss. She did not turn over the scythe to the police. Wilfredo left for home. when he heard somebody shout “Boy. the barangay captain of Tiguian. He narrated that he and his family were preparing to go to bed at around 6:30 p. come down and we will fight to death. The latter told Peralta he had killed Emeterio and voluntarily surrendered to him. Demosthenes left appellant in Wilfredo‟s house and proceeded to appellant‟s residence where he saw the bloody corpse of the victim sprawled in the yard. reads: “[S]ubject admitted of (sic) killing his younger brother as the latter was drunk and provoked him for (sic) a scythe duel right downstair(s) of his house that prompted him to get his scythe and come down from his house and allegedly boxed first his brother and subsequently hacked several times as he was already commanded by his evil thought(s). Emeterio then ascended the . 1994. he tried to ignore the challenge. which he evaded. Emeterio leaped at appellant who was standing with his head out of the window and slashed appellant with his scythe but missed. Seeing that his efforts to stop the fraternal quarrel were of no use and fearful of being hit in the affray. The scythe‟s wooden handle had the name “Alberto Dano” carved on it. appellant. When interrogated by the police. which he later turned over to the police. He told his brother to go home but the latter. Demosthenes took photos of the corpse. He turned over the scythe to the police. Between the hours of six and seven o‟clock that same evening. contained in the police blotter. At the request of the police station commander. admitted he killed his brother. did not heed his words. The pertinent portion of his statement. Demosthenes fetched appellant from Wilfredo‟s house and took him to the police station. Demosthenes went to appellant‟s home to investigate. he kept on hitting the ground with the scythe. near the stairs.m. armed with a scythe. Demosthenes Peralta. On his way. Demosthenes fetched a doctor from the town proper of Margosatubig. was returned to her by some people in their barangay. still lying in appellant‟s yard. but when it was repeated several times. Without any provocation on his part. who appeared disturbed. He conducted a further examination of the crime scene and found a bloodstained scythe beneath appellant‟s house. without assistance of counsel.

He did not know why his name was engraved on the wooden handle of said scythe. which caused the former to resent him. OR AT LEAST INCOMPLETE SELF-DEFENSE AND/OR DEFENSE OF RELATIVES. IF NOT TOTALLY IGNORING. Appellant explained that he had a previous misunderstanding with the victim over the purchase of a horse from his cousin Doroteo Oliver on installment basis. appellant seasonably filed his notice of appeal. They grappled for the scythe while in the porch. compensatory damages of P2. Emeterio wanted to buy the horse. to pay the heirs of the deceased the sum of P50. qualified by treachery. She claimed. defined and penalized under Article 248 of the Revised Penal Code. Appellant held and twisted his brother‟s wrist to disarm him of the scythe. III . He assigns the following errors: I THE LOWER COURT ERRED IN MAKING A SWEEPING CONCLUSION THAT TREACHERY EXISTS IN THE CASE AT BAR. and there being no proof of any modifying circumstances either to aggravate or mitigate the liability. that it was the same scythe that his brother was carrying during the incident. judgment is hereby rendered finding the accused Alberto Dano y Jugilon guilty beyond reasonable doubt of the crime of Murder.000. Appellant‟s wife and children screamed and cried in fear. Appellant denied owning the scythe found by the barangay captain beneath his house. but appellant bought it ahead of him.00 by way of indemnity for the death of said victim. however. then tumbled down the stairs. II THE LOWER COURT ERRED IN DISREGARDING. He said he was not in a normal state of mind. His spouse largely corroborated appellant‟s version of the first round of the fratricidal affray. The door partially opened after Emeterio slammed it several times. hereby sentences said accused to suffer the penalty of reclusion perpetua. Appellant did not know how many times he hit his brother or how many wounds he inflicted.stairs to push open the bamboo door on the porch leading to their living room. When they hit the ground.00 by way of unrealized earnings and to pay the costs.00 as actual damages. had their eyes closed in shock and fear.” On August 2. The court below disbelieved appellant‟s version of the incident and decided as follows: “WHEREFORE. Seeing that he had killed his brother. appellant threw the scythe under his house and went to the barangay captain to surrender.000. He was sure. as well as her children. THE ACCUSED‟S CLAIM OF SELF-DEFENSE AND/OR DEFENSE OF RELATIVES. 1994.000. the victim was dead. “SO ORDERED. P3. however. that she did not see how the victim was killed as they were inside the house and she.

In convicting the accused of the offense charged. and to be provided one if he cannot afford the services of counsel. contradicts his version appearing on the police blotter of the police station of Margosatubig dated March 16. where he admitted the killing of his younger brother Emeterio Dano as „the latter was drunk and provoked him for (sic) a scythe duel right downstairs of his house that prompted him to get his scythe and come down from his house and allegedly boxed first his brother and subsequently hacked several times as he was already commanded by evil thoughts. (3) the confession must be express. 1994. A person under investigation for the commission of an offense is guaranteed the following rights by the Constitution: (1) the right to remain silent. (2) the right to have competent and independent counsel of his own choice. (2) the confession must be made with the assistance of competent and independent counsel.THE LOWER COURT ERRED WHEN IT SAID THAT EXHIBIT “E‟ OF THE PROSECUTION WAS NOT OBJECTED TO BY THE DEFENSE.‟ . These rights “cannot be waived except in writing and in the presence of counsel. Appellant contends that his constitutional and statutory right to counsel during custodial investigation was violated when the police took his statements without a lawyer to assist him. and (4) the confession must be in writing.” A confession to be admissible must satisfy the following requirements: (1) the confession must be voluntary. WHILE EXHIBIT “4” FOR THE PROSECUTION) WAS OWNED BY THE ACCUSED AND NOT THAT OF THE VICTIM. appellant avers that it was error for the trial court to give weight to the admissions made by appellant during custodial investigation (Exhibit “E”). the trial court held: “Accused‟s testimony on the witness stand however. He further argues that the trial court should have declared his statements before the police inadmissible when they were objected to during the trial. and (3) the right to be informed of these rights. the pertinent issues for our consideration are: (1) Did the trial court err in admitting the extrajudicial confession of the accused? (2) Did the court a quo err in failing to appreciate appellant‟s defense of self-defense and/or defense of relatives. IV THE LOWER COURT ERRED IN RELYING TOO MUCH CREDENCE (sic) TO THE TESTIMONY OF TERESITA DANO WHO DECLARED THAT THE SCYTHE (EXHIBIT “D” FOR THE DEFENSE ON ONE HAND. Simply stated. or at the least incomplete self-defense and/or defense of relatives? (3) Did it err in convicting appellant of murder qualified by treachery and imposing the penalty therefor? On the first issue.

The blotter recorded the incident immediately after the crime and another entry in the morning. he was familiar with investigation procedures. It having been entered at the time when the accused had just surrendered to the authorities in a remorseful attitude and in a spontaneous manner free of any extraneous influence and coaching of a lawyer. we noted that SPO3 Reales admitted that as an assistant investigator. he also admitted appellant was interrogated by the police regarding the incident. even if appellant‟s confession were gospel truth. recorded what was observed on the scene of the crime including a description of the prostrate body of the accused. we find merit in appellant‟s claim that his constitutional rights were violated. do not suffice to acquit appellant of the offense charged. All these. therefore. when taken without the assistance of counsel without a valid waiver of such assistance regardless of the absence of coercion or the fact that it had been voluntarily given.” We also noted in the records that the defense objected to the admission of the testimony of SPO3 Reales “because said witness is incompetent to testify as to the entry…having admitted…that he was not one who entered that (sic) events in the police blotter and…that he has no knowledge when the entries in the police blotter were made…. This presumption cannot by itself prevail over positive averments concerning violations of the constitutional rights of an accused. Such entry in the police blotter when not objected to. A suspect‟s confession. but there was no showing whatsoever appellant was assisted by counsel during custodial investigation. First. in the absence of any proof of tampering or alteration thereof. the trial court erred when it relied on the supposed extrajudicial confession of appellant in the police blotter. hence is entitled to full faith and credit. who is neither a police officer nor a law . Appellant admitted killing the victim before the barangay captain. than the self-serving version of the accused given on the witness stand which is more a product of an after-thought and concocted story than an honest and truthful version of what actually happened. is presumed to have been accomplished in the regular performance of official duties by the police officer who made the entry.” What we find offered by the prosecution as evidence is the testimony of SPO3 Jesus Reales “on the authenticity of the entries on the police blotter.” Moreover. This Court therefore considers the recital in said entry more credible and easy to believe. It was also error for the trial court to have considered and relied on the questioned entry in the police blotter. Extrajudicial confessions must conform to the requirements of the Constitution. to strike down the lower court‟s reliance on the assailed police blotter entry in convicting appellant. whether verbal or non-verbal. prosecution) containing the foregoing recital as testified to by SPO4 Jesus Reales. There is valid reason.“During the formal offer of evidence by the prosecution. Evidence which has not been formally offered cannot be considered by courts. however. Under cross-examination.” We have carefully scrutinized the records including the List of Exhibits for the Prosecution and the prosecution‟s offer of evidence and nowhere find mention of Exhibit “E. Considering the foregoing circumstances. defense counsel admitted the authenticity of the extract of above entry in the police blotter (Exhibit “B”. given the failure of the prosecution to offer it in evidence. We also find the court‟s reliance on the presumption that official duty has been regularly performed misplaced. the same entry carries great weight and high probative value. is inadmissible in evidence.

which can easily be concocted. that the person making the defense took no part therein. Even if the prosecution evidence were weak. there is nothing to prevent or repel. He insists that the killing of and the attack by the victim were nearly simultaneous. it could not be readily dismissed after the accused had openly admitted his responsibility for the killing. the accused who claims self-defense or defense of relative must positively establish that there was an actual. while he was able to inflict twelve (12) hacking wounds on the victim. and (3) in case the provocation was given by the person attacked. complete or incomplete. and unexpected attack or imminent danger thereof. on the part of the victim. The Solicitor General counters that appellant‟s defenses cannot be appreciated since the victim was already unarmed when killed. is not in violation of appellant‟s constitutional rights. Self-defense. There was no more danger to the life and limb of appellant or to the members of his family. For self-defense or defense of a relative. according to the Solicitor General. and not merely a threat or an intimidating stance. In order that defense of a relative may be appreciated. What the Constitution proscribes is the compulsory or coercive disclosure of incriminating facts. namely. without appreciable interval of time. Thus. like alibi. given the fact that the other elements of the justifying circumstances involved were present. Appellant faults the trial court when it concluded that unlawful aggression was absent at the time of the killing. appellant pleads self-defense and/or defense of relatives. This fact belies appellant‟s theory and reveal an intent to kill the victim. the appellant was unscathed in the tumult. For unlawful aggression to be appreciated. and (3) lack of sufficient provocation on the part of the person defending himself. to be appreciated. even if done without the assistance of a lawyer. Such admission. the element of unlawful aggression is indispensable. according to appellant. is inherently a weak defense.enforcement agent. there must be a positively strong act of real aggression. For self-defense to prosper. Inasmuch as appellant failed to prove there was no unlawful aggression. (2) reasonable necessity of the means employed to prevent or repel it. the trial court erred in not appreciating incomplete self-defense. If there is no unlawful aggression. Assuming that the number of wounds sustained by the deceased negated self-defense and/or defense of relative. Unlawful aggression was absent at the time of the killing. . sudden. The constitutional requirements on custodial investigation do not apply to spontaneous statements made in a voluntary manner whereby appellant orally admitted authorship of the crime. there cannot be any self-defense. unlawful aggression on the part of the victim and lack of sufficient provocation on appellant‟s part. appellant must prove by clear and convincing evidence the following elements: (1) unlawful aggression on the part of the victim. the following requisites must concur: (1) unlawful aggression by the victim. When an accused invokes self-defense. (2) reasonable necessity of the means employed to prevent or repel it. Furthermore. On the second issue. the onus probandi to show that the killing was justified shifts to him. whether complete or incomplete.

It was also established that. The number. In the instant case. Relying on People v. The deceased and appellant were allegedly wrestling all over the crime scene for possession of the weapon. in the absence of any showing that the factual findings were reached arbitrarily or without sufficient basis. 124 SCRA 594 (1983). some of which were at his back. appellant must prove by evidence most satisfactory. Maguddatu. To this the Solicitor General agrees. Timple. Then there was no longer any real peril to the life or safety of the appellant or his family when the victim lost his weapon. 237 SCRA 52 (1994). the trial court found: “…Despite the long scuffle over the possession of the scythe with his deceased brother which started from the porch of their house up to the ground near the stairway. where we ruled that treachery cannot be appreciated where the killing was made on the spur of the moment. despite appellant‟s assertion that he engaged in a life or death struggle for the possession of the weapon during which the combatants fell from the porch to ground. He cites People v. complete or incomplete. In contrast. the most important of which is unlawful aggression on the victim‟s part. When unlawful aggression which has begun earlier no longer exists. not even a scratch or a bruise. the trial court found that appellant was able to disarm the victim before the killing. On the third issue. 120 SCRA 281(1983) where we held that treachery is not present where accused and victim grappled with each other and People v. there can be no self-defense or defense of a relative. Cedenio. appellate courts accord the highest respect and even finality to findings of fact by trial courts. and conviction of appellant must follow. He relies on People v. the deceased sustained twelve (12) multiple hacking wounds all over his body…He admitted that from the time he gained control and possession of the scythe from his brother. the evidence for the defense cannot be characterized as clear and convincing.” The question of whether appellant acted in self-defense is essentially a question of fact. In view of these findings. the concurrence of all the elements of self-defense and/or defense of a relative. We share the view that appellant was able to disarm his assailant before the latter was killed. Thus. he argues that treachery cannot be presumed but must be . and gravity of the wounds that the victim sustained do not support the claim of unlawful aggression on his part at the time he was killed. Moreover. Absent unlawful aggression. If appellant were merely defending himself. Butler. location. the deceased was already armless (sic) and there was no more danger to himself coming from his brother. yet the victim sustained wounds in the back. To successfully invoke self-defense and defense of relative. appellant‟s inability to explain why he came out of the fierce struggle unscathed seriously and hopelessly damages his credibility. he incredibly sustained nary a scratch or injury. he did not have to hack the deceased a dozen times. The Solicitor General points out that treachery cannot be appreciated because the evidence on the record is bereft of any showing of the precise manner in which the killing was done. By contrast. Appellant submits the qualifying element of treachery is absent in the instant case. the one making the defense has no right to kill or even wound the former aggressor.In the instant case. the victim suffered twelve (12) ghastly wounds. 233 SCRA 356 (1994). accused has (sic) never sustained a single wound on his body.

and kill him. Applying the Indeterminate Sentence Law. initially.” The penalty next lower is prision mayor. In this case. and (2) that appellant voluntarily surrendered himself to a person in authority or his agents. two (2) months. or forms in the execution thereof without risk to himself arising from the defense which the offended party might make.00 for burial expenses. he concludes that appellant should only be convicted of the crime of homicide. and (2) the deliberate or conscious adoption of such means adopted by the assailant. Absent the qualifying circumstance of treachery. Appellant Alberto Dano y Jugilon is found GUILTY of the crime of HOMICIDE and consequently. Prision mayor in its medium period is eight (8) years and one (1) day to ten (10) years. Note that it has been established that there was. and to pay the heirs of Emeterio Dano P50. the court shall “impose the penalty next lower to that prescribed by law in the period that it may deem applicable. the decision appealed from is hereby MODIFIED. The penalty for homicide is reclusion temporal.000. while the minimum shall be taken from the penalty next lower in degree which is prision correcional in any of its periods. there was no showing whatsoever by the prosecution that appellant deliberately adopted the means of attack used to kill the victim. Moreover. Treachery occurs when the accused employs means. and one (1) day to six (6) years. For treachery to be appreciated. The record is categorical that appellant surrendered to the barangay captain of Tiguian after the incident. Lastly. Thus. For treachery to be appreciated there must not be even the slightest provocation on the part of the victim. Prision correcional in its maximum period is four (4) years. A barangay leader is a person in authority.00 as indemnity for his death and P3. Appellant in defending himself from the deadly assault was able to grab the weapon of the victim. and one (1) day of prision correcional as minimum to eight (8) years and twenty (20) days of prision mayor as maximum. the following must be proven: (1) the employment of means of execution which give the person assaulted no opportunity to defend himself or retaliate. the deceased had deliberately provoked and attacked appellant. we find that the trial court failed to appreciate two mitigating circumstances in appellant‟s favor. The circumstances of the assault show that appellant did not have the luxury of time to deliberate and contemplate the manner or method of killing the victim. the offense committed is not murder but only homicide under Article 249 of the Revised Penal Code. two (2) months.proved by evidence as convincing and conclusive as the killing itself. disarm him. namely: (1) that sufficient provocation or threat on the part of the offended party immediately preceded the killing. The trial court‟s findings with respect to the presence of treachery cannot be sustained.000. the maximum penalty to be imposed shall be taken from the medium period of the imposable penalty which is prision mayor. WHEREFORE. Where there are two mitigating circumstances and no aggravating circumstances present. methods. unlawful aggression on the part of the deceased. . sentenced to suffer an indeterminate prison term of four (4) years. There is treachery where the accused‟s attack was so sudden and launched from behind that the victim was caught off guard without an opportunity to defend himself.

Branch 8 in Malaybalay City. unlawfully and criminally attack. 1999. 2002 in Criminal Case No. Bellosillo. the dispositive portion of which reads: WHEREFORE.. mortally wounding the latter which injury caused the instantaneous death of GAUDENCIO PERATER. 9594-99 of the Regional Trial Court (RTC). Philippines and within the jurisdiction of this Honorable Court. CONTRARY TO and in violation of Article 248 of the Revised Penal Code. the above-named accused. which affirmed the Decision dated July 16. the trial court found accused-appellant guilty of murder. (Chairman). CR-H.C. SO ORDERED. Province of Bukidnon. in view of all the foregoing. concur. the court finds the accused Bienvenido Mara y [Bolaqueña] guilty beyond reasonable doubt of the crime of . which reads: That on or about the 27th day of February 1999.No pronouncement as to costs. Buena. assault and hack GAUDENCIO PERATER. to the damage and prejudice of the legal heirs of GAUDENCIO PERATER in such amount as may be allowed by law. [M]unicipality of Maramag. at CMU. Musuan. 2007 in CA-G. No. 7659. 2002.. did then and there willfully.R.. JJ. Accused-appellant was charged in an information dated March 29. as amended by R. 00163 of the Court of Appeals (CA). J.: This is an appeal from the Decision dated December 19. and De Leon. Jr.A. with intent to kill by means of treachery and evident premeditation with the use of a sharp bladed instrument with which he was conveniently provided. VELASCO. Mendoza. JR. in the evening. On July 16.

WITH THE MODIFICATION that appellant is directed to pay the heirs of the victim the following amounts: P 50.murder. and a certain Mario Mara seated at the left side of the victim.00 as exemplary damages.400. 2004. Marcelino wrested . 1999.000. following the ruling in People v. and.00) Pesos as actual expenses and to pay the costs. Accused-appellant filed a Notice of Appeal dated August 2.00) Pesos. the dispositive portion of which reads: WHEREFORE. widow of Gaudencio Perater. He said they were seated at the table.00 as moral damages. Ramel Balos. and to suffer the penalty of Reclusion perpetua. The accused is hereby given full credit for his preventive detention. the victim. The Facts The facts. Marcelina Perater. from the aforementioned decision to this Court. P 50. the appealed Decision finding appellant Bienvenido Mara y Bolaqueña guilty of the crime of Murder. as found by the RTC and reaffirmed by the CA. Mateo. P 25. when suddenly accused-appellant hacked the victim on the right side of his neck with a bolo. Accused is hereby sentenced to the penalty of reclusion perpetua. The case was transferred to the CA in a resolution dated September 20.00 as actual damages. The CA modified the trial court‟s decision. 2002. Marcelino testified that the victim and accused-appellant were among the visitors in his house on February 27.000. Accused is ordered to indemnify the heirs of Gaudencio Perater the amount of Seventy Five Thousand (P75. was presented to prove the amount of actual damages from burial expenses. P 26. he being seated at the right side of the victim.000.00 as civil indemnity.400. were culled from the testimonies of witnesses Marcelino Balos and his nephew. SO ORDERED.000. and further to pay Twenty Six Thousand and Four Hundred (P26. is hereby AFFIRMED. SO ORDERED.

and it found the testimonies of Marcelino and Ramel to be more convincing. When accused-appellant replied that he had not yet returned from work. Ramel then saw his uncle take away the bolo from accused-appellant. brother of accusedappellant. In his defense. There is only his testimony that there was an attempt by the victim to stab him. the appellate court gives full weight and respect to the . Ramel testified that he was in the house of his uncle on the night of February 27. knocking him down.” Ramel then punched the victim. telling the victim. let him stand. He confirmed that Mario was seated at the left side of the victim and his uncle at the victim‟s right side. accused-appellant states that the trial court erred in appreciating the qualifying circumstance of treachery. He also testified that there were no words exchanged between accused-appellant and the victim prior to the attack. “This is your yard. and reiterates that he acted in self-defense. “Who among you here is offended. As a rule. “So you want killing?” and got hold of a bolo. and the sound was the hacking done by accused-appellant on the victim‟s neck.the bolo from accused-appellant and gave it to his wife. He testified that accusedappellant had been going in and out of the house. the victim then told him. The credibility of the witnesses had been weighed by the trial court. Our Ruling As to the claim of accused-appellant that he acted in self-defense. Marcelino then warned accused-appellant that the victim was about to stab him. Accused-appellant swung the bolo towards his back. it cannot be appreciated. Accused-appellant then grappled with Marcelino to prevent him from attacking the victim. hitting the victim on his neck. Marcelino then ran to the kitchen. and Marcelino reported the incident to the police. as opposed to the testimonies of the two witnesses presented against him. was. accused-appellant claimed he had been drinking with Marcelino and Ramel when the victim arrived and asked where Mario. As to his version of events. Ramel stated that he heard a snapping sound and when he looked. He then threw the bolo away. saying. and embraced the victim. They placed the body of the victim on a bench. are you going to side with your elder brother [referring to Mario] whose teeth I have broken?” The victim then pulled a knife and pointed to accusedappellant and his companions. and was able to wrest the bolo away from Marcelino. shouting for help. 1999 along with several other guests to celebrate his birthday. he saw accused-appellant holding a bolo.

and his testimony has been found to be less credible by the trial court. considering it happened at a birthday celebration. One who admits killing or fatally injuring another in the name of self-defense bears the burden of proving: (1) unlawful aggression on the part of the victim. depriving the latter of any real chance to defend themselves.determination by the trial court of the credibility of witnesses since the trial court judge has the best opportunity to observe the demeanor of the witness. the facts are enough to show the treachery employed by accused-appellant. The victim was not in the process of attacking accused-appellant from behind. without any warning. and (3) lack of sufficient provocation on the part of the person claiming self-defense. selfdefense relies first and foremost on proof of unlawful aggression on the part of the victim. and unexpected. His version of the events is uncorroborated. Accused-appellant has failed to discharge his burden of proving unlawful aggression. and that there was in fact no treachery present in the attack. accused-appellant argues that the trial court erred in appreciating it. . The essence of treachery is the sudden and unexpected attack by the aggressors on unsuspecting victims. the burden is placed on the accused to prove its elements clearly and convincingly. no self-defense may be successfully pleaded. not the victim. From the evidence gleaned by the trial court. thereby ensuring its commission without risk to the aggressors. accused-appellant‟s claim of self-defense must fail. Accused-appellant was the instigator. Gaudencio. No provocation was proved on the part of the victim. The attack was sudden. His argument lacks merit. If no unlawful aggression is proved. While all three elements must concur. as the testimony of accused-appellant that the victim was about to attack him was uncorroborated and not given weight by the trial court. as testified by the witnesses. and without the slightest provocation on the part of the victims. Regarding the qualifying circumstance of treachery. but rather had been seated at a table during a birthday celebration. (2) reasonable necessity of the means employed to prevent or repel it. By invoking self defense. As the element of unlawful aggression on the part of the victim is absent. Thus. the victim had no inkling that an attack was forthcoming and had no opportunity to mount a defense.

As treachery attended the killing of Gaudencio. 2219 of the Civil Code. with the addition of moral and exemplary damages. As accused-appellant has failed to show any error in the ruling of the CA. Moral damages are justified under par. 1 of Art. He would not have expected his life to be in danger in such surroundings.What is decisive is that the attack was executed in a manner that the victim was rendered defenseless and unable to retaliate. even assuming that there was bad blood between him and accused-appellant. we must uphold its decision.C. 2007 in CA-G. CR-H. which provides that moral damages may be recovered from a criminal offense resulting in physical injuries.000. No. WHEREFORE. ISAIAS V. Appellant. No pronouncement as to costs. 2008 x --------------------------------------------------x . When a crime is committed with an aggravating circumstance. we AFFIRM the CA Decision dated December 19.R. At the birthday celebration where the attack occurred. the victim‟s guard would be down. an award of exemplary damages is justified under Art. Promulgated: October 10. and accused-appellant took advantage of this. the crime was correctly found to be murder under paragraph 1 of Article 248 of the Revised Penal Code. correctly setting the civil indemnity at PhP 50. DIZON. SO ORDERED. The addition of exemplary damages is also justified. either qualifying or generic. 2230 of the Civil Code. The CA modified the ruling of the trial court. 00163.

As eyewitness accounts pointed to Rodel Dizon (Rodel). 29 of the Revised Penal Code.DECISION CARPIO MORALES. However. 2001. and P5. the Provincial Prosecutor found probable cause to hale only appellant into court. On December 25. and Virgilio Pascua (Pascua) as the last persons seen with the victim.000. premises considered. the dispositive portion of which RTC decision reads: WHEREFORE.00 as actual expenses. P50. 2002. 2005 decision of Branch 38 of the Regional Trial Court (RTC) of Maddela.00 as temperate damages. 2006. the lifeless body of Jeto Santos (the victim) was found floating in a creek in Sangbay. SO ORDERED. as amended. Quirino. J.00 as moral damages. judgment is hereby rendered finding ISAIAS DIZON GUILTY beyond reasonable doubt of Murder for which he should suffer the penalty of reclusion perpetua and to pay the heirs of JETO SANTOS P75. the three were immediately arrested and charged before the Office of the Provincial Prosecutor. the Court of Appeals affirmed in toto the January 10. Nagtipunan.000.00 as civil indemnity. convicting Isaias Dizon (appellant) of Murder. By Decision of October 31. Quirino. Thus appellant was charged for Murder in an Information the accusatory portion of which reads: .000. his preventive imprisonment shall be fully credited to him in the service of his sentence pursuant to Art.000. P14. By Resolution of January 29. herein appellant Isaias Dizon.

whose grandfather is a cousin of herein appellant. he ran away and proceeded to his grandmother‟s house. Mary Jane corroborated appellant‟s testimony. as a result fell down. Rodel. adding that at around 11:00 in the evening. He thus rushed to the two and tried to pacify appellant. Nagtipunan. the said accused with intent to kill and with treachery did then and there willfully. Philippines and within the jurisdiction of this Honorable Court. while he. Upon reaching the stone-littered edge of the creek. but he (Rodel) was able to arrest the attempt and the stone fell on the ground. Unrestrained. Quirino. unlawfully and feloniously attack. picked up the same stone and succeeded in “dropping” it at the already sprawled victim. illuminated by the lights from the bar and adjacent to the downward path towards a creek. he saw appellant and the victim exit from the bar and proceed towards the creek which was about 15-20 meters away from the bar. he claimed that he went home at around 8:45 in the evening at the behest of his wife Mary Jane. While urinating. Appellant denied the charge. Pascua and appellant were drinking at a videoke bar. 2001. the following transpired: In the evening of December 24. CONTRARY TO LAW. assault and use personal violence upon the person of JETO SANTOS by hitting thrice the latter in the head with the use of stones. Appellant thereupon shoved him. oblong in shape whose length was approximately that of a long coupon bond. Realizing that he could no longer pacify appellant. with no enclosure. From the account of prosecution witness.That on or about 10:00 o‟clock to 11:00 o‟ clock in the evening of December 24. she noticed Rodel knocking on the door of her neighbor Romy Dizon. the victim entered and started dancing along to the music. 2001 in Sangbay. thereby inflicting upon the latter mortal wounds which were the direct and immediate cause of his death thereafter. At around 10:00 o‟clock he went outside to urinate at an elevated area. appellant picked up a fist-sized stone with which he smashed the face of the victim who. . saying “Uncle. Admitting that he was at the bar with Rodel and Pascua before the incident. appellant attempted to again hit the victim by picking up another stone.

appellant faulted the trial court: I . but she did not ask who the victim was. the trial court credited. as stated early on. The appellate court in upholding the trial court‟s finding that treachery attended the killing held: The act of Accused-Appellant in hitting the victim again with a stone knowing fully well that the latter is already sprawled on the ground. Moreover. Rodel went to their (appellant‟s and Mary Jane‟s) house and pleaded “Lola. . and that when she opened the door.uncle. . herein appellant. The trial court. And the trial court noted the testimony of Dr. convicted appellant by Decision of January 10. Additionally. treachery can exist even if the attack is frontal. In convicting appellant. for a number of times simply tend[s] to show that the Accused-Appellant had chosen such manner of execution. among other things. with the sizes of a fist and a long coupon bond. the requisites to qualify the crime to murder through treachery are met in the instant case. that when nobody responded. Rodel asked for money from her to which she obliged. with his hands spread [out]. lola. 2005. . please open up because I have killed”. in appreciating the qualifying circumstance of treachery. giving the victim no opportunity to defend himself against such attack. if it is sudden and unexpected. (Underscoring supplied) . and] II . the deliberate throwing of stones. In his Brief filed before the Court of Appeals. . Perla Olay as corroborative of Rodel‟s testimony that the victim was hit in the head. thereafter by the Accused-Appellant. Rodel‟s positive identification of appellant absent a showing that he was actuated by an ill-motive to testify against his grandfather. Thus. please open up because I have killed”. insured that the victim had no opportunity to defend or retaliate against him. in finding [him] guilty beyond reasonable doubt of the offense charged[.

A word on the civil aspect of the case. the award of civil indemnity is reduced from P75. actual damages having already been awarded. vs. In fine. hence. however. As testified by his wife. exemplary damages in the amount of P25. an aggravating circumstance – treachery – being present. however. (3) exemplary damages is awarded to the heirs of the victim in the amount of P25.000. which is naturally heightened in Rodel because appellant is a relative. DECISION . Costs against accused-appellant. The appellant‟s picking up of a stone and crashing it upon the victim was so sudden. the Court considers the manner of execution of the criminal act which renders it impossible for the victim to defend himself.000. SO ORDERED PEOPLE OF THE PHILIPPINES. In line with prevailing jurisprudence. WHEREFORE. The award of temperate damages is deleted. The Court awards. it was not impossible for him to be at the locus criminis at the time of the commission of the crime. (2) the award of temperate damages is deleted and. it is not enough to prove that he was somewhere else when the offense was committed. if not to kill him instantly. 2006 is AFFIRMED with the following MODIFICATION on the civil aspect of the case (1) the award of civil indemnity is reduced from P75. It must likewise be proven that he was somewhere else that he could not have been physically present at the place of the crime or its immediate vicinity at the time of its commission. to thus render him defenseless. Treachery can thus exist even if the attack is frontal if it is sudden and unexpected. The gravity of the head wounds suffered by the victim – seven lacerated wounds two of which exposed the brain tissues. for judicial notice is taken of the natural hesitancy of most people to get involved in a criminal case. While in Rodel‟s Sworn Statement before the police given soon after his arrest.In determining the existence of treachery. It bears noting that appellant‟s attack was directed to the head of the victim. WILFREDO BAUTISTA Y NIELES. should confirm such intent. As for appellant‟s alibi.000 to P50. Olay. the bar was only 50 meters away from their house. he declared that there was an altercation before appellant picked up a stone and hit the victim with it. murder is not ruled out. accusedappellant. plaintiff. for it to prosper.000. hence fatal according to Dr. appellant‟s appeal fails. the Court of Appeals Decision of October 31.000. indicating that he intended to render him unconscious.000 to P50. The identification of appellant as the malefactor by his grandson Rodel should a fortiori be accorded much weight. Mary Jane.

bakit nanampal ka ng guardiya?” The victim retorted. with treachery. Itong kausap ko. Valentine T. went to the Inflight Center of PAL at the MIA Road. a flight steward of the Philippines Airlines (PAL). appellant contends that he should have only been charged with and convicted for homicide and not murder. Pasay City. Bernales.” Accused-appellant then took the shotgun slung on the shoulder of Usman and stepped back. in conspiracy with one another. conspiracy and abuse of superior strength were not established by the prosecution because the shooting was accidental and/or committed under a mistake of fact that the victim . Appellant also argues that treachery. upon motion for reconsideration. The latter simply told Davila that he should have pinned his ID on his chest. conducted a post mortem examination of the victim. At this point. John Doe. who was one of the accused before the trial court. “Putang ina ka. Dr. He submits that the victim slapped with his wallet containing his ID appellant‟s fellow security guard Usman. NBI Medico-Legal Officer. The evidence shows that at ten o‟clock in the evening of 2 April 1992 victim Alfonso Davila y Velasco. another security guard of the Asian Security and Investigation Agency assigned at the entrance for pedestrian at Gate 1. Before his car could enter Gate 1 it was stopped by accused Gayak Usman y Adzed and other security guards of the Asian Security and Investigation Agency assigned in that area. accused-appellant Wilfredo Bautista. “Sir. “Bakit ka nakikialam. Gayak Usman y Adzed. As he went near Davila the latter said.: WILFREDO BAUTISTA y NIELES appeals from the decision of the court a quo finding him guilty of murder and imposing upon him a prison term of reclusion perpetua. accused-appellant Wilfredo Bautista y Nieles and the other accused. Huwag kang makikialam dito.” Then accused-appellant fired at the victim hitting him on the left side of his head which caused his death. feloniously shot Alfonso Davila y Velasco with a firearm hitting him at the back of his head which caused his death. approached Usman and Davila and remarked. No award for civil indemnity however was made in view of the reservation of the heirs of the victim to file a separate civil action. in Pasay City. Usman told the victim that he could not enter the gate because he had no PAL sticker. Then accused-appellant went to the back of the car of Davila and cocked the shotgun. this Court on 3 August 1994 treated the motion as appellant‟s brief and directed the Solicitor General to file appellee‟s brief. namely. William Doe. However. He gave the cause of death as gunshot wound on the head.BELLOSILLO. The verbal confrontation however continued. J. Vincent Doe and Edward Doe. to inquire about his flight schedule. evident premeditation and taking advantage of superior strength. But for failure of his counsel to file his brief despite three (3) extensions granted him this Court dismissed his appeal. The Information alleged that on 2 April 1992. Richard Doe. which incident caught appellant‟s attention and because of the victim‟s gauche remarks he (appellant) lost his composure and shot the victim. Davila showed Usman his ID placed in his wallet and thrust it on his face. On 22 March 1993 the accused appealed. The argument between Usman and Davila continued. In his motion for reconsideration. Peter Doe.

the Court finds him guilty only of homicide and not murder as found by the trial court. The arguments of accused-appellant are not without merit. To prove justification the accused must rely on the strength of his own evidence and not on the weakness of that of the prosecution. A belief that a person is about to be attacked is not sufficient. At the same time he also argues that he lost his equanimity when he saw the victim slap his co-accused security guard and when he (appellant) tried to intervene he was also rudely treated by the victim. the burden is on him to establish the presence of any circumstance which may relieve him from responsibility or mitigate the offense committed. it could not be disbelieved after the accused has admitted the killing. complete or incomplete. the motive and all those facts and antecedents . he presented inconsistent allegations as to why he killed the victim. The slapping could not therefore have given him a well grounded or reasonable belief that he was in imminent danger of death or great bodily harm to compel him to defend himself by killing the victim. Accused-appellant claims that he acted under a mistake of fact that the victim was about to get a gun from his clutch bag inside the car. The records show that when appellant went near the victim. it must be shown that there was a previous unlawful aggression that placed the life of the accused in danger and forced him to inflict more or less severe wounds upon his assailant. passion and obfuscation and/ or incomplete self-defense. These findings of fact bear great weight and consideration supported as they are by the evidence on record. Accused-appellant failed to prove the presence of these circumstances. The trial court found that the allegation about the presence of a clutch bag inside the car is not supported by the evidence. for even if it be weak. In the instant case. The aggression must be real or at least imminent and not merely imaginary. Even an intimidating or threatening attitude is by no means enough. walked towards the rear of the car of the victim. employing therefor reasonable means to resist the unprovoked attack of which he was the object. cocked his firearm and suddenly shot the latter. A mere push or shove not followed by other acts placing in real peril the life or personal safety of the accused is not unlawful aggression. appellant alleges that if he should be made to answer for his act he should only be guilty of homicide and entitled to the mitigating circumstances of voluntary surrender.was about to reach for a gun inside his car. all the personal belongings of the deceased in his car were inventoried and the alleged clutch bag was not one of them. neither was there a gun or any other weapon inside his car. There was no proof of the time when the intent to commit the crime was engendered in the mind of accused-appellant. Notwithstanding the failure of accused-appellant to prove self-defense. Further. In a plea of self-defense. who was then arguing with a fellow security guard he got the latter‟s shotgun. In fact. We find no evident premeditation in the killing of the victim. Once accused-appellant has admitted that he killed the victim. Not a single circumstance alleged in the information qualifying the crime to murder is present. The claim of appellant that the act of the victim in reaching for a clutch bag and slapping his fellow security guard constitute unlawful aggression is devoid of merit. If no unlawful aggression attributed to the victim is established there can be no self-defense. Instead. the victim slapped another person and not accused-appellant.

When it does not appear that the shooting was premeditated nor that the accused had consciously chosen a method of attack directly and especially to facilitate the perpetration of the homicide without danger to himself. Treachery was conspicuous in its absence. We cannot appreciate the circumstance of passion and obfuscation invoked by appellant to mitigate his criminal liability. there being no proof that they cooperated to take advantage of their superior strength. homicide is punishable by reclusion temporal. Huwag kang makikialam dito. The obfuscation must originate from lawful feelings. but with that cold and deep meditation and tenacious persistence in the accomplishment of his criminal purpose. The turmoil and unreason which naturally result from a quarrel or fight should not be confused with the sentiment or excitement in the mind of a person injured or offended to such a degree as to deprive him of his sanity and self-control. treachery cannot be imputed to the appellant. Under Art. However.which when combined would show that the crime was knowingly premeditated or that accusedappellant acted not only with a pre-existing design. The victim knew of the oncoming danger when appellant approached him and took Usman‟s shotgun. “Bakit ka nakikialam. 249 of the Revised Penal Code. Treachery cannot be appreciated if the accused did not make any preparation to kill the deceased in such manner as to insure the commission of the killing or to make it impossible or difficult for the person attacked to retaliate or defend himself. the voluntary surrender of accused-appellant to a police authority four (4) days after the commission of the crime as found by the trial court may be considered attenuating.” The circumstance that an attack was sudden and unexpected to the person assaulted did not constitute the element of alevosia necessary to raise homicide to murder. Applying the Indeterminate Sentence Law and appreciating the mitigating circumstance of voluntary surrender which is not offset by any aggravating circumstance. there is no treachery when the killing resulted from a verbal altercation between the victim and the assailant such that the victim must have been forewarned of the impending danger.” And as he cocked his gun and walked towards the victim the latter even remarked. “Putang ina ka. in any of its periods. while the minimum shall be taken from the penalty next lower in degree which is prision mayor. That was why the victim asked appellant. The fact that they did not conspire to kill the deceased implies that they did not jointly exploit their superior strength. the range of which is six (6) years and one (1) day to twelve (12) years. and his decision to shoot the victim seemed to be so sudden and the position of both the victim and the accused was entirely accidental. the maximum of the penalty shall be taken from the minimum period of reclusion temporal. Itong kausap ko. the range of which is twelve (12) years and one (1) day to twenty (20) years. because the cause of this condition of mind must necessarily have preceded the commission of the offense. Moreover. the range of which is twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. No abuse of superiority was established. . where it did not appear that the aggressor consciously adopted such mode of attack to facilitate the perpetration of the killing without risk to himself. The fatal shot was fired by only one of two (2) accused.

Padilla (Chairman). no civil indemnity is awarded. and Kapunan.WHEREFORE.. JJ. to twelve (12). . SO ORDERED. In view of the reservation to file separate civil action. years six (6) months and twenty (20) days of reclusion temporal minimum as maximum. four (4) months and ten (10) days of prision mayor minimum as minimum. Vitug. not murder. concur. and sentenced to an indeterminate prison term of six (6) years. the decision appealed from is MODIFIED and accused-appellant WILFREDO BAUTISTA y NIELES is declared GUILTY of HOMICIDE.

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