EN BANC

then and there willfully, unlawfully and feloniously attack, assault and hack with the said weapons one Aliguer Urbano, thereby inflicting upon the latter serious wounds which caused his untimely death. CONTRARY TO LAW.
[2]

[G.R. Nos. 129961-62. August 25, 2003] Another Information was filed with the said RTC docketed as Criminal Case No. 3734, charging the same appellants and Rodrigo Caabay with murder, the accusatory portion of which reads: THE PEOPLE OF THE PHILIPPINES, appellee, vs. VIRGILIO CAABAY, ESTEBAN CAABAY, RODRIGO LUDRING CAABAY, VALENTINO COOL CAABAY and ISIDRO BOYET CAABAY, accused, VIRGILIO CAABAY, ESTEBAN CAABAY, VALENTINO COOL CAABAY and ISIDRO BOYET CAABAY, appellants. DECISION CALLEJO, SR., J.: This is an automatic review of the Decision of the Regional Trial Court of San Jose, Occidental Mindoro, Branch 46, convicting the appellants with double murder for the deaths of Paulino Urbano and his son Aliguer Urbano, sentencing them to double death by lethal injection, and directing them to pay, jointly and severally, civil indemnity in the total amount ofP100,000.00.
[1]

That on or about the 27 day of June, 1994, at around 5:00 oclock in the afternoon in Sitio Lamis, Barangay San Agustin, Municipality of San Jose, Province of Occidental Mindoro, Philippines and within the jurisdiction of this Honorable Court, the accused being then armed with sharp bladed instruments, with intent to kill and taking advantage of their superior strength, conspiring and confederating together and helping one another, did then and there willfully, unlawfully and feloniously attack, assault and hack with the said weapons one Paulino Urbano, thereby inflicting upon the latter serious wounds which caused his untimely death. CONTRARY TO LAW.
[3]

th

On November 9, 1994, the appellants, assisted by counsel, were arraigned and entered their respective pleas of not guilty. Accused Rodrigo Caabay remained at large. A joint trial thereafter ensued.

The Case for the Prosecution The Indictments

[4]

On August 9, 1994, an Information was filed with the RTC of Occidental Mindoro, docketed as Criminal Case Nos. R-3733, charging the appellants and Rodrigo Caabay with murder, qualified by abuse of superior strength, the accusatory portion of which reads: That on or about the 27 day of June, 1994 at around 5:00 oclock in the afternoon in Sitio Lamis, Barangay San Agustin, Municipality of San Jose, Province of Occidental Mindoro, Philippines and within the jurisdiction of this Honorable Court, the accused being then armed with sharp bladed instruments, with intent to kill and taking advantage of their superior strength, conspiring and confederating together and helping one another, did
th

The spouses Paulino Urbano and Adelina Urbano, were residents of Sitio Lamis, Barangay San Agustin, San Jose, Occidental Mindoro. About forty meters away from their house was Paulinos four-hectare farmland. The [5] house of their 27-year-old son Aliguer Urbano and his wife Arlene, was about fifteen meters away. The 64-year-old Paulino could not walk without the use of a cane because of a foot injury. Adjacent to the couples property was a two-hectare farmland cultivated by accused Virgilio Caabay and his sons accused Esteban Caabay, Rodrigo (Ludring) Caabay, Valentino (Cool) Caabay and Isidro (Boyet) Caabay. Banana trees were planted within the periphery of the common boundary of the two parcels of land. Because of a recurring dispute over the boundary of the farmlands they respectively cultivated, Paulino lodged a complaint against accused Virgilio with

Barangay Captain Victory Sualog. On May 31, 1993, the barangay captain resolved the dispute and delineated the boundary of the farmlands. On March 14, 1994, Adelina complained to the barangay captain that their house was burned. On June 27, 1994, at 5:30 p.m., Paulino and Adelina were at their farmland. Paulino was cutting the overgrown grasses in the middle portion of the land using a bolo. After a while, he rested and smoked a cigarette while seated. Adelina was cooking dahon ng sili. Momentarily, Adelina told her husband that it was getting late and they should be heading home. Paulino told his wife to go ahead as his clothes were drenched in sweat and he was waiting for them to dry. Despite her proddings, Paulino refused to go home. Accused Rodrigo Caabay sauntered by and commented to Paulino that he was clearing a wide portion of the land. Paulino replied that the farmland was very wide and it was about time that he cleared it. Rodrigo then inquired from Adelina what she was doing and she answered that she was cooking. Rodrigo left. Adelina also decided to go home and left her husband behind. When Adelina was barely three meters away from their house, she met her son Aliguer, armed with a bolo, rushing to where his father was. When Adelina looked back, she was shocked to see accused Virgilio and his children - Esteban, Rodrigo, Valentino and Isidro - each armed with bolos, hacking Paulino on the neck and the right hand. Accused Rodrigo hacked Paulino on his back. The victim fell to the ground. Aliguer scampered away from the scene but accused Virgilio and Esteban ran after and overtook him. Accused Virgilio, Esteban, Valentino and Isidro and other persons encircled Aliguer, and thereafter ganged up and stabbed him. Aliguer fell to the ground, mortally wounded. The accused Caabays and their cohorts placed the cadavers of Paulino and Aliguer side by side. Shocked and petrified, Adelina could do nothing but bow her head in silent grief. She was afraid even to go to the place where her husband and son were. Alone in their house, Adelina was unable to sleep the entire night. The following morning, Adelina proceeded to the place where her husband and son were hacked and stabbed. She found them sprawled in their farmland, side by side, already dead. She proceeded to the house of Barangay Captain Victory Sualog at Barangay San Vicente and reported the incident. She also informed the barangay captain that accused Virgilio and his sons Esteban, Valentino, Rodrigo and Isidro were the assailants. In the meantime, SPO3 Romeo Robles and SPO2 Jesus Gonong arrived and conducted an on-the-spot investigation. The next day, Municipal Health Officer Dr. Hurley G. delos Reyes of San Jose, performed an autopsy on the cadavers of the victims and

signed two autopsy reports. The doctor made the following findings on his examination of Paulinos body: ... II POST MORTEM FINDINGS: 1. Incised wound, 13 cms. x 7 cms., left scapular area incising the collar bone; Incised wound, (crosswise) at the ear, face and nose; 14 cms. x 2 cms.; Incised wound, 6 cms. x 1.2 cms. at the left parietal area; Incised wound, 8 cms. x 1.5 cms. at the left temporal area; Incised wound, 3 cms. x 1.4 cms. at the left frontal area; Incised wound, 5 cms. x 0.3 cm. at the chin; Stab wound, 3 cms. x 1 cm. at the right scapular area; Amputated, right hand; Incised wound, 4 cms. x 3 cms. at the left posterior area; Incised wound, 4 cms. x 3 cms. at the left anterior wrist; Incised wound, 13 cms. 4 cms. at the posterior neck;

2.

3.

4.

5.

6. 7.

8. 9.

10.

11.

I.

CAUSE OF DEATH:

Cardio respiratory arrest, hemorrhage due to incised and stab wounds.

[6]

On the other hand, the following were the doctors findings upon examining Aliguers body: II. POST MORTEM FINDINGS: 1. Incised wound, 12 cms. x 4 cms. maxillary area fracturing the teeth; Incised wo[u]nd, 10 cms. x 5 cms. at the left of the face; Incised wound, 13 cms. x 3 cms., right posterior hand; Incised wound, pointer and middle fingers, right hand; Incised wound at the scrotum; Incised wound, 4 cms. x 1 cm. at the right forearm posterior; Incised wound, 3 cm. x 1 cm., left ear;

The accused Virgilio Caabay admitted having hacked Paulino and Aliguer. He claimed, however, that he killed Aliguer to defend himself. He, also killed Paulino to defend his son, accused Esteban Caabay. Virgilio testified that he was adept at defending himself, having studied martial arts. He was 54 years old at the time of the killings. On June 27, 1994 at 5:00 p.m., he was outside feeding their pigs, while his wife was cooking in the kitchen. His son Esteban was about 15 meters away, transferring the cow to another place. Virgilio saw Paulino within the boundary of his farmland, destroying his fence. Virgilio confronted Paulino and told him to stop. Paulino retorted: Bakit, ano? Virgilio said: Hindi ako lalaban. Aliguer, who was near the banana trees, about a meter away, was armed with a bolo. He suddenly tried to hack Virgilio from behind. The latter turned around and faced Aliguer who, thereupon struck Virgilio with the bolo, hitting the latter on the face and the left ear. Paulino likewise hacked Virgilio, but the latter was able to parry the thrust with his right hand. Virgilios leg and right elbow were hit by Paulinos bladed weapon. Virgilio cried for help, calling his son Esteban who armed himself with a piece of wood and immediately rushed to his father. Aliguer then hacked Virgilio on the head twice, but Virgilio was able to wrest the bolo away from Aliguer. He then held Aliguers hands and used him as a shield, to prevent Paulino from stabbing him. Virgilio pushed Aliguer forward. Aliguer fell to the ground. Virgilio then stabbed the fallen Aliguer several times, even as the latter tried to ward off the thrusts with his feet. Virgilio could no longer recall how many times he stabbed and hacked the victim. In the meantime, Paulino squared off with Esteban. After hacking Aliguer, Virgilio then thrust the bolo at Paulino and hacked the latter several times. Paulinos right hand was severed; it fell to the ground, its fingers still clutching the bolo. Virgilio, his wife and Esteban then proceeded to Barangay Adela where they took a motor boat and proceeded to the Zapanta Maternity and General Hospital for the treatment of their wounds. He stayed in the hospital for one week, and had to return for further treatment. His wife destroyed the bolos. For his part, accused Esteban testified that at 5:00 p.m. on June 23, 1994, he was grazing his cow in their farmland. He saw Paulino and Aliguer, each armed with a bolo, hacking his father. He heard his father shout to him for help. Esteban picked up a piece of wood, about a meter long, from the fence and rushed to defend his father who was then fending for himself against Aliguers hacking blows. Esteban sustained wounds on his left and right arms, and the left side of his neck. Esteban called to his father for help. Virgilio had by then hacked Aliguer to death. He squared off with Paulino, whom he also struck down. Virgilio, his wife, and Esteban then fled

2.

3.

4.

5. 6.

7. II.

CAUSE OF DEATH:
[7]

Cardio respiratory arrest, hemorrhage due to incised wounds.

Dr. delos Reyes signed the respective death certificates of Paulino and [8] Aliguer. Because the collar bone was broken, it appears that the incised wound on Paulinos left scapular area was the most serious. On June 29, 1994, Adelina gave her sworn statement on the stabbing incident to SPO1 Romeo P. Narcise, wherein she identified Virgilio Caabay [9] and his sons Esteban, Rodrigo, Valentino and Isidro as the assailants.

The Evidence of the Accused

[10]

from the scene, and proceeded to Barangay Adela, about one and a half kilometers from Sitio Lamis where they borrowed a banca owned by Iyok Awit. From there, they proceeded to the house of Councilor Danilo Malayas whose banca they borrowed for the trip to the Zapanta Maternity and General Hospital in San Jose. Once there, Dr. Senen Zapanta treated father and son for their wounds. Virgilio and Esteban were treated for wounds. Virgilio sustained the following wounds: multiple lacerated

dog, she would not have discovered the bodies. However, Oquindo failed to inform the police authorities about what Adelina had told him. Barangay Captain Victory Sualog testified that at 6:30 a.m. on June 28, 1994, Oquindo and Adelina arrived at his house and reported the stabbing and killing of Paulino and Aliguer. He was told that the incident stemmed from a boundary conflict between Virgilio and Paulino. Adelina requested him and the two barangay councilors to conduct an on-the-spot investigation. Sualog then ordered Oquindo and Quindap to proceed to the scene of the crime, while he proceeded to San Jose to report the incident to the police authorities and secure the services of a medico-legal officer. The accused Isidro and Valentino denied any involvement in the killing of Paulino and Aliguer. They adduced evidence that they were employed by Danilo Malayas at Barangay Adela, Cambaruan, Rizal, about three kilometers from Sitio Lamis. They had been working in the twelve-hectare farmland as operators of hand tractors since June 10, 1994 or barely two weeks before the killing. During this time, they stayed in Danilos house. They likewise averred that it would take three hours on foot to reach Sitio Lamis from the Malayas farm, but there was also a route via motor boat through the nearby Busuanga River. In the afternoon of June 27, 1994, Isidro and Valentino were at work until 6:00 p.m. They left the fields with their employer. Rodrigo and Isidro were told that their father Virgilio and their brother Esteban had been hacked and were confined at the Zapanta Maternity and General Hospital in San Jose. With their co-worker Juanito Roldan, they rushed to the hospital on board the motor banca owned by Malayas. Valentino and Isidro slept in the hospital that night. The testimonies of Valentino and Isidro were corroborated by Juanito Roldan. Danilo Malayas testified that Valentino and Isidro had been working in his farm since June 1, 1994. On June 27, 1994, he and his helpers, including Valentino and Isidro, were working at his farmland since 7:30 a.m. At 11:30 a.m., they left the farm and went to his house at the poblacion, which was about a kilometer away. They went back to the farm at 1:00 p.m. His brother Lucreo Malayas saw them as they worked. Danilo went back home at 4:00 p.m., leaving Valentino and Isidro. At around 6:00 p.m. to 7:00 p.m., Virgilio and Esteban arrived, wounded. They asked him to lend his motor boat, to ferry them to the Zapanta Maternity and General Hospital in San Jose. He agreed. Virgilio and Esteban were transported to San Jose on board his motor boat. When Esteban and Isidro arrived, he told them what happened. Danilo also testified that it would take one to negotiate the distance from his house to the place of the killing about forty to fifty minutes.

Lac. Wd. Face Left about 7-8 inches up to the ear left. Lac. Wd. Temple Left 1 inch. Lac. Wd. Wrist Left, Posterior Lac. Wd. Shoulder Rt. Anterior Lac. Wd. Elbow Rt. Post rd [11] Lac. Wd. Leg Middle 3 . Rt. Ant. Esteban sustained the following injuries:

Lac. Wd. Face Rt. rd Lac. Wd. Forearm Prox. 3 . Postero-Lateral rd Lac. Wd. Forearm Distal 3 . Antero-Lateral rd. Lac. Wd. Forearm Middle 3 Ant. Lac. Wd. Hand, Palmar along the little finger rd. Lac. Wd. Thigh, Distal 3 Anterior rd Lac. Wd. Leg, middle 3 . Antero-Lat. Left Lac. Wd. Finger, Thumb, Ant. rd Lac. Wd. Forearm, distal 3 . Post. rd [12] Lac. Wd. Forearm, middle 3 . Post.

The wounds sustained by the two could have been caused by a sharp bolo; the wounds were serious and could have caused their deaths. Virgilio and Esteban were discharged from the hospital on July 12, 1994. Renato Oquindo testified that he was a barangay kagawad and chairman of the barangay peace and order committee. At 8:00 a.m. on June 28, 1994, Adelina arrived in his house at Barangay San Agustin and told him that her husband and her son had been killed. He accompanied Adelina to the house of Barangay Captain Victory Sualog, who directed them to go to San Jose to report the incident to the police authorities. Later, Oquindo and Barangay Councilor Alberto Quindap proceeded to the scene of the killing and saw the cadavers of Paulino and Aliguer, about ten meters away, inside the Urbano farmland. Adelina told Oquindo that were it not for their white

Lucreo Malayas corroborated Danilos testimony. He testified that accused Valentino and Isidro were in the farm from 7:00 a.m. to 6:00 p.m. on June 27, 1994. The next day, June 28, 1994, he learned that Valentino and Isidro, as well as accused Virgilio, Esteban and Rodrigo, were suspects in the killing of Paulino and Aliguer. Lucreo Malayas corroborated the testimony of his brother Danilo. During the preliminary investigation, the accused submitted their respective counter-affidavits. On January 23, 1997, the trial court rendered judgment convicting the appellants with double murder, the decretal portion of which reads: WHEREFORE, the Court finds that: a) In Criminal Case No. R-3733;

The trial court ruled that treachery and abuse of superior strength were attendant in the commission of the crimes. All the accused, now the appellants, assail the decision of the trial court, contending that: The Court a quo erred: I. In relying heavily on the testimony of the lone alleged eyewitness of the prosecution whose testimony is tainted with bias and contradictions. In totally not giving credence and deliberately disregarding the testimonies of witnesses for the defense. In finding of material facts against the accused unsupported by evidence. In convicting all the accused for murder.
[14]

II.

III. Accused Virgilio Caabay, Esteban Caabay, Cool (Valentino) Caabay, and Boyet (Isidro) Caabay guilty as principals of the crime of Murder, as defined and penalized under Article 248 of the Revised Penal Code, and Section 6 of Republic Act No. 7659, otherwise referred to as the Death Penalty Law, and are hereby sentenced to DEATH. All the accused are hereby ordered to jointly and severally indemnify the heirs of the late Aliguer Urbano in the amount of FIFTY THOUNSAD PESOS (P50,000.00). b) In Criminal Case No. R-3734;

IV.

Accused Virgilio Caabay, Esteban Caabay, Cool (Valentino Caabay, and Boyet (Isidro) Caabay guilty as principals of the crime of Murder as defined and penalized under Article 248 of the Revised Penal Code, and Section 6 of Republic Act Number 7659, otherwise known as the Death Penalty Law, and are hereby sentenced to DEATH. All the accused are ordered to jointly and severally indemnify the heirs of the late Paulino Urbano in the amount of FIFTY THOUSAND PESOS (P50,000.00). The accused who are all detained at the Provincial Jail at Magbay are ordered immediately transferred to the New Bilibid Prisons, Muntinlupa [13] City.

The appellants aver that the trial court erred in giving credence and probative weight to Adelinas testimony. She failed to reveal the identity of the assailants to her daughter-in-law Arlene Urbano, to the policemen who conducted an on-the-spot investigation of the killings and to Barangay Captain Sualog. She did not tell them that she witnessed the killing. Appellants Valentino and Isidro could not possibly be involved because at the time, they were working in the Malayas farmland. Only the appellants Virgilio Caabay and Esteban Caabay were involved in the killing of the victims, as only they sustained injuries. The other appellants did not even sustain a scratch on their bodies. The trial court also erred in not holding that appellants Virgilio Caabay and Esteban Caabay acted in selfdefense when they killed the victims. The Office of the Solicitor General, for its part, argues that Adelina positively identified the appellants as the assailants. That she failed to divulge their identities to her daughter-in-law Arlene, to the policemen who conducted the on-the-spot investigation and to Barangay Captain Sualog, did not impair her credibility and the probative weight of her testimony. The trial court did not err in giving credence and probative weight to A delinas testimony which is even corroborated by the physical evidence on record. The contentions of the appellants do not persuade. The legal aphorism is that the findings of the trial court, its assessment of the credibility of the witnesses and the probative weight thereof, and its conclusions based on

the said findings are accorded by the appellate court conclusive effect unless the trial court ignored, misconstrued and misinterpreted facts and circumstances of substance which, if considered, would alter the outcome of [15] the case. After a review of the evidence on record, we find no reason to deviate from the findings and conclusions of the trial court. Contrary to the appellants assertions, Adelina did identify the appellants as the assailants and testified on their respective involvement in the killings. Her testimony on direct examination is as follows: Q You mentioned also about the accused as the one who killed your husband and son, will you kindly point to us accused Virgilio Caabay? (The witness pointed to a person seated on the bench and when asked about his name, he answered that he is Virgilio Caabay) How about Esteban Caabay, is he in court? Yes, sir. Will you please point to him? (The accused voluntarily stood up when he heard his name). How about Ludring Caabay, is he inside the court? Hes not yet arrested, Sir. How about Cool Caabay, is he inside the courtroom?

Q A Q A Q A Q A ...

Now, will you kindly tell us Mrs. Urbano the relationship of the accused with each other? One family, Sir. And who is the father among the accused? Virgilio Caabay is the father who is wearing wrist watch. How about this Ludring Caabay, what is his relationship? He is also the son of Virgilio Caabay. Do you want to tell us that Esteban, Ludring, Cool and Boyet are the children of Virgilio Caabay? Yes, sir.
[16]

Q A Q A Q A Q

FISCAL OLARTE: Q A When you were going to your house, what happened, if any? When I reached home, I met my son Aliguer and he told me that we have a visitor in our house and I told him to go ahead of me.

COURT: Q A What happened to your husband? When my son went to approach my husband and when I turned my back, I saw my husband dead already. I saw also my husband being hacked, Your Honor. Who hacked your husband? The Caabays, Your Honor. Who among the Caabay because there are many Caabays? The Caabays hacked my husband, sabay-sabay, Your Honor. All of the Caabays were armed with bolos? Yes, Your Honor, they were all armed with long bolos. And they hacked your husband to death?

ATTY. VILLAMAR: The accused voluntarily stood up when he heard his name. Q A How about Boyet Caabay, where is he? (The witness pointed to a person wearing white T-shirt and when asked his name he answered that he is Isidro Caabay @ Boyet Caabay). Q A Q A Q A Q

COURT: There are five accused, only one at large. FISCAL SALCEDO: Yes, your Honor.

Yes, Your Honor, they hacked my husband on the neck and cut his right hand.

ATTY. VILLAMAR: Your son went to that direction to help his father, is it not? A Q A Q A Q A Q A Q My son proceeded to the place where my husband was to fetch him so that he could go home. But according to you, when you turned your back, you saw your husband being hacked by the Caabays? My son was still walking when I met him, and when I turned back, I saw my husband being hacked by the Caabays. And when you saw his father being hacked by the Caabays, your son proceeded to the place where his father was? Yes, Sir. And your son was holding a bolo? Yes, sir. When you left your husband in that place, he was with his bolo because he was then clearing your land? Yes, sir. You mentioned that there were 10 people who were involved in the killing of your son and husband, my question is: you do not know the others except the Caabays? I do not know them by their names but I looked only at the Caabays. Because youre very familiar with the Caabays? Yes, sir. And in fact, you have land boundary dispute? Yes, Sir. Now, because of what you witnessed when you turned your head, you were shocked, is it not? Yes, Sir, I just looked at them, and I know them, I just stood up and bowed my head. And you never run towards your husband to plea for his life? No, sir, because they were armed.

FISCAL OLARTE: Q A Q A Q A I noticed that there are only four (4) Caabays, now, where is the other one? He is hiding in Cambarwang [sic], in the house of Marcelo Candelario, Sir. What is the name of that Caabay who is hiding in the house of Mario Candelario? Ludring Caabay, Sir. He was really the one who hacked my husband at the back. While your husband was being hacked by the Caabays, as you said, what did your son Aliguer Urbano do? When my son approached the body of my husband, he was chased by the two (2) accused, Berling Caabay and Esteban Caabay so, my son ran away. What happened to your son when he was being chased by these persons? Eight (8) persons approached and they killed my son, Sir. Who killed your son? All the Caabays, Sir.
[17]

Q A Q A ... Q A

A Q

Now, when you met your son, your son proceeded to the place where your husband was? When I met my son, and when I turned back, I saw my son being hacked by the Caabays.

A Q A Q A Q A

COURT: All these accused Mrs. Witness? A Q A Yes, your Honor. Including Ludring who is still at large? When my son ran away, many persons encircled and ran after him.

But before that incident, youre in talking terms with the Caabays because in your testimony your husband and Ludring Caabay even talked with each other? Yes, sir, in fact we gave them fish when my husband caught fish. How long did you stay there standing and in shocked [ sic]? After my husband was killed, they left, so I also went home. And you stayed in your house? Yes, sir.
[18]

S Sina VIRGILIO CAABAY, ESTEBAN CAABAY, LUDRING CAABAY, COOL CAABAY at BOYET CAABAY. 5. T iyong Ano naman ang ginamit ng mga taong binanggit sa pagpatay sa iyong asawa at anak?

A Q A Q A

S Ang mag-aama pong ito na pumatay sa aking asawa at anak na ang kanilang ginamit ay tig-iisa sila ng gulok. 6. T Kailan at saan naman nangyari ito?

On cross examination, Adelina testified as follows: ATTY. VILLAMAR: On that morning of the following day, you never went to the place where you saw your husband and your son dead? A Q Before I went to the Barangay Captain, I went first to the place where my husband and son were killed. And you saw the dead bodies of your husband and son Aliguer the following morning before you went to the house of the Barangay Captain? Yes Sir, they were beside with [sic] each other. Do you want to tell us that the dead bodies of your husband and your son the following morning before you went to the Barangay Captain were lying side by side already? Yes Sir, they were lying side by side.

S Noon pong petsa 27 ng Hunyo, 1994 humigit kumulang sa alas 5:30 ng hapon sa aming bukid sa So. [20] Lamis, Brgy. San Agustin, bayang ito. The fact that Adelina is Paulinos widow and Aliguers mother adds more credence to her testimony. It is in her natural interest to secure the conviction of the killers of her loved ones. Thus, this deters her from implicating persons other than the real culprits, for otherwise, the latter [21] would thereby gain immunity. In People v. Porras, we held that experience dictates that precisely because of the unusual acts of violence committed right before their eyes, witnesses can remember with a high degree of reliability the identities of criminals, and the time and manner they committed the crimes. In People v. Baquiran, we ruled that the natural reaction of one who witnesses a crime and recognizes the offender is to reveal it to the authorities at the earliest opportunity so that the culprits will be apprehended without loss of time and prosecuted and convicted in due course of proceedings. In this case, Adelina informed Barangay Captain Victory Sualog that the appellants were the assailants of her husband and son: Q A Q A Now, the following morning, you proceeded to where?. I went to Barangay Captain Victory Sualog. And you narrated what you saw to the barangay captain? I told the barangay captain that my husband and son Aliguer were dead lying down, and they were killed by the [24] Caabays.
[23] [22]

A Q

COURT: Who moved the bodies? A The Caabays your Honor, who laid the bodies side by [19] side.

On June 29, 1994, or barely two days after the gory killing, Adelina gave her sworn statement to SPO1 Romeo P. Narcise, where she identified the appellants as the assailants: 4. T Sino o sino-sino naman ang pumatay sa iyong asawa at anak, kung kilala mo?

There is no standard behavior for a person confronted with a shocking incident, especially if the victim is a close kin. One may immediately report the incident to the proper authorities and may opt to come forward to reveal

the identities of the perpetrators. Others may simply opt to prioritize his reaction to a gory incident. One may bring the victim to the hospital to save his life, and defer in the meantime the reporting of the incident to the police authorities and the revelation of the identities of the perpetrators. Others may report the crime to the police authorities after some time for [26] investigation. In this case, Adelina was the simple unlettered wife of a farmer. She had just witnessed the gory debutchery of her husband and son. She was deluged with mixed feelings of fear, grief and helplessness. Ranged against the appellants who were each armed with bolos, she had nobody to lean on for help. She opted to report the incident to the barangay captain who would then be obligated to report the same to the police authorities. The police investigators must have noticed how distraught Adelina was that they did not immediately subject her to questioning at the time. This can be gleaned from Adelinas testimony: Q A Q A Q A The police went to Sitio Lamis? Yes, your honor. What time did they arrive there? Around 11:00 oclock in the morning, your Honor. Were you investigated by the police? They did not investigate me because my mind was not yet [27] ready for the investigation.

[25]

A Q A Q A Q A Q A

Near Sir, fifteen meters away. And the wife of Aliguer is living in their house? Yes, Sir. And on that afternoon, you know for a fact that the wife of Aliguer was in their house? Yes, sir. And yet, you did not go to their house to tell that her husband, your son, was already dead? She saw also because she looked outside the window and saw Caabay hacked her husband. And you know for a fact also that the wife of Aliguer did not go to any authority to report the incident on that afternoon? She did not go outside the house because her son was sick [29] and had measles.

We do not believe Renato Oquindos testimony that Adelina told him that she would not have known about the killing of her husband and son were it not for their white dog. There is no evidence on record that the Urbanos owned a dog. Furthermore, Oquindo never breathed a word about this to the police authorities. It was only when he testified that he revealed the matter for the first time. The alibi and the denials of the appellants Isidro and Valentino Caabay, being the weakest of all defenses, will not prevail over the positive and straightforward identification made by Adelina, pointing to the appellants as [30] two of the assailants of her husband and son. Such defenses are easy to [31] concoct and difficult to disprove. To merit approbation, the appellants were burdened to prove their alibi at the trial with clear and convincing evidence; that they were in such a place other than the situs criminis, such that it was physically impossible for them to have committed the crimes. In this case, the evidence of the appellants in support of their alibi is weak. Even assuming that indeed as of June 27, 1994, the appellants were employed by Danilo Malayas in his farmland and were staying thereat, it was not physically impossible for them to have been at the scene of the crime at the time of its commission. Danilo Malayas, the appellants employer, testified that one would take only one and a half hours to travel from his farmland to Sitio Lamis, where the assailants killed the victims: ...

Adelina was so overcome with grief when she saw the motionless bodies of her husband and son, that Barangay Captain Victor Sualog and the barangay councilors present had to pull her away: ATTY. VILLAMAR: Who were the persons that you were able to talk on that day June 28, 1994? The barangay captain and councilors were the one [sic] who [28] pulled me away from the body of my son and husband.

There was no need to inform Arlene that her husband had been killed, because, as Adelina testified, Arlene herself saw the incident from her house: ATTY. VILLAMAR: How far is the house of Aliguer from your house?

And from the river if you would use the paddled banca directly going to Sitio Lamis it would take you about fifteen minutes also?

A Q A Q A

2.5 kilometers, Your Honor. If you will go to the place of the incident by walking or hiking how many hours will it reach [sic] you? 1-1/2 hours, Your Honor. From your house to the place of the hacking incident how long will it take you to negotiate the distance? 40 to 50 minutes, Your Honor.

ATTY. VILLAMAR: No. You can not reach Sitio Lamis by banca. COURT: From the river bank going to Sitio Lamis, how long will it take you to the other side? A Because when we came from the farm going to Sitio Lamis you will passed [sic] by Adela so that you can ride in a banca, Your Honor.

COURT: Alright, proceed.

[33]

COURT: Q A How long will it take you from the farm to Adela by walking? One (1) hour, Your Honor.

Considering the short distance between the situs criminis and the Malaya farm where the appellants claim they were, it was not physically impossible for appellants Valentino and Isidro Caabay to have left the Malaya farmland at 4:00 p.m., arrive at their house at about 5:30 p.m. and thereafter hack the two victims to death. Self-defense as interposed by the appellants Virgilio and Esteban is untenable. For one thing, appellant Estebans theory is antithetical to his and appellant Virgilios testimonies that when appellant Esteban rushed to the aid of his father, he was armed merely with a piece of wood, and upon hearing his son, appellant Esteban, pleading for succor, appellant Virgilio faced Paulino and hacked the latter to death with the bolo which he earlier managed to grab from Aliguer. Paulino and Aliguer died of incised and stab wounds, and not of injuries caused by a piece of wood. Furthermore, whether the accused acted in self-defense or in defense of a relative is a question of fact to be determined by the trial court based on the evidence on [34] record. The trial court must consider by a balance of probabilities who of the participants in a fight had in the natural order of things, the reason to [35] commence the unlawful aggression. Case law has it that like alibi, self-defense or defense of relatives are inherently weak defenses which, as experience has shown, can easily be [36] fabricated. If the accused admits the killing, the burden of evidence, as distinguished from burden of proof, is shifted on him to prove with clear and convincing evidence the essential elements of the justifying circumstance of self-defense, namely: (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means employed by the accused to prevent or repel the unlawful aggression; and (c) lack of sufficient provocation on the [37] part of the accused defending himself. Defense of a relative requires the following essential elements: (a) unlawful aggression on the part of the

COURT: And the banca, that will take you ten to fifteen minutes? A Twenty minutes, Your Honor. When you reached the other side, how long will it take you walking? A After crossing the river you will walk around ten minutes, Your Honor.

COURT: So, more or less one hour and thirty minutes. Proceed, [32] Fiscal. He also testified that one coming from his house going to the place of the hacking incident, would negotiate the distance in only forty to fifty minutes: COURT: Q A Q How far is that place of hacking incident to your house? 1.5 kilometers, Your Honor. How far is that place of the hacking to your farm?

victim; (b) reasonable necessity of the means employed by the accused to prevent or repel the unlawful aggression of the victim; and (c) in case of provocation given by the person being attacked, the one evading the attack, [38] defense had no part therein. For the accused to be entitled to exoneration based on self-defense or defense of relatives, complete or incomplete, it is essential that there be unlawful aggression on the part of the victim, for if there is no unlawful aggression, there would be nothing to prevent or [39] repel. For unlawful aggression to be appreciated, there must be an actual, sudden and unexpected attack or imminent danger thereof, not merely a [40] threatening or intimidating attitude. The accused must rely on the strength of his own evidence and not on the weakness of that of the prosecution because even if the evidence of the prosecution is weak, the same could no longer be disbelieved after the [41] accused has admitted the killing. Self-defense and/or defense of relatives cannot prosper if not corroborated by independent and competent [42] evidence. In this case, the appellants aver that the trial court erred in not exonerating them on their plea of self-defense, taking into account the following: 1. 2. The victims are admitted to be both armed with bolos. The accused Virgilio Caabay and Esteban Caabay suffered several serious injuries that will negate the presumption adopted by the Lower Court that they were the aggressors qualified by Treachery and aggravated by the presence of evidence premeditation and abused of superior strength. That the testimonies of the accused Virgilio Caabay and Esteban Caabay jibed with the corresponding injuries. For instance Esteban Caabay said that he was just armed with a piece of wood and that he only parried the hacking blows of the victim Aliguer Urbano by his hands. True enough, most of his injuries, were on his hands. As to Virgilio Caabay, he said that he was hacked by the victim Paulino Urbano on his face. This allegation is backed by a serious hack wound on his face. The only reason why he survived the attacked [sic] of Paulino Urbano is [43] because he knows something about martial arts.

We agree with the trial court. First. The trial court gave credence and probative weight to the testimony of Adelina, fortified as it is with the physical evidence on record. She testified that the appellants hacked the victim Paulino on the neck and cut off his arm. The autopsy report of Dr. Hurley delos Reyes shows that the victim sustained an incised wound on the neck and his right [44] hand was amputated. Second. Appellant Virgilio testified that he was not armed, while appellant Esteban was armed with a piece of wood. However, Paulino sustained ten incised wounds and one stab wound on the scapular area, ear, face and nose, parietal area, left temporal area, left frontal area, chin, right scapular area and posterior neck. Aliguer sustained seven incised wounds on the maxillary area, fracturing his teeth on the left side of the face; [45] he also sustained wounds on the scrotum and on the left ear. Considering the nature, location and number of the wounds sustained by the victims, the [46] appellants plea of self defense and defense of a relative will not hold. Third. Appellant Virgilio failed to prove when and how he learned martial arts. His barefaced testimony that he knew something about martial arts is self-serving and barren of probative weight. Fourth. The appellants should have surrendered the bolos and the piece of wood to the police authorities. They should have reported that appellants Esteban and Virgilio were at the Zapanta Maternity and General Hospital for the treatment of wounds sustained while defending themselves from the victims. The appellants did not. Appellant Virgilio testified that his wife destroyed the bolos, thus: Q A Q A Q A Those bolo [sic] that you retrieve [sic] from Aliguer did you surrender it? No, sir, I was in the hospital. How about the bolo used by Paulino Urbano, was there anybody who get [sic] that? It was in our house but my wife throw [sic] it away, sir. Likewise the bolo that you retrieve [sic] from Aliguer Urbano was thrown away? Yes, sir.
[47]

3.

But the trial court ruled that the appellants failed to prove with clear and convincing evidence their plea of self-defense or defense of a relative.

Appellant Virgilio, however, failed to present his wife to explain when and why she destroyed the bolos used by the victims.

Fifth. Appellant Virgilio testified that he managed to grab Aliguers bolo, then pushed the latter, held his right hand, and used him as a shield. He then stabbed Aliguer several times even as the victim had already fallen to the ground. Appellant Virgilio could no longer remember how many times he had stabbed the victim because his vision had blurred: Q And according to you when Aliguer Urbano was about to strike you parried his blow and by using judo, you were able to wrest the bolo from him? I was able to get the bolo from him, sir. Because you used judo? Yes, sir. You demonstrated in Court [sic] Aliguer Urbano immediately fell on the ground when you twisted his arm and finally wrest the bolo, is it not?

A Q A Q A Q A Q A Q A Q A Q A ... Q A Q A Q A Q

Yes, sir, when I got hold of that bolo, I hacked him. The same bolo that you get [sic] from him? Yes, sir. You hit him? Yes, sir. On what part of his body? I hit him in his arm, sir. How many times did you hit him? That is what I do not know, sir. Now, this Aliguer Urbano was already defenseless at the time you wrested the bolo from him? Yes, sir. In fact, since you have already wrested the bolo you should stop hitting him if you wanted so, is it not? Because my sight at that time was already blurred, sir. How long did you face Aliguer Urbano after you wrested the bolo from him? Saglit lang po, sir.
[48]

A Q A Q

ATTY. VILLAMAR: The question is misleading, Your Honor. FISCAL SALCEDO: Why misleading? ATTY. VILLAMAR: When they wrestle[d] with the bolo away from Aliguer, Aliguer fell. There is no showing that he immediately fell. FISCAL SALCEDO: When you wrestled with Aliguer wrestling the bolo from him, did he fell on the ground? A Q A Q A Q No, sir. What was the relative position of Aliguer Urbano after you wrest the bolo from him? He was standing, sir. Facing you? Yes, sir. Right then and there you delivered hacked wounds on his face?

So thereafter you let loose his son is that what you want to tell us? I pushed him away, sir. You pushed him towards Paulino Urbano? I pushed him and after that I hacked him, sir. And Paulino Urbano did not do anything at the time you were successively hacking Aliguer Urbano? None, sir. He remain [sic] standing while you were continuously hacking his son Aliguer Urbano?

ATTY. VILLAMAR: We will object to the word continuously, Your Honor. FISCAL SALCEDO: Okay, he remain [sic] standing while you were hacking his son Aliguer Urbano? A Q A Q A He was already facing Steven, sir. And according to you when Aliguer Urbano fell, you also stabbed him with a bolo you used in hacking him? Yes, sir. Why? Was the bolo you used a pointed one? Yes, sir.
[49] [50]

abuse of superior strength was attendant because the appellants took advantage of their numerical superiority and their bladed weapons in killing [54] the victims.

Proper Penalties for the Felonies

The trial court erred in sentencing the appellants to death for each of the crimes. The penalty for murder under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659 is reclusion perpetua to death. There being no modifying circumstance attendant in the commission of the crimes, aside from the qualifying circumstance of abuse of superior strength, the appellants should be sentenced to suffer reclusion perpetua for each crime, conformably to Article 63 of the Revised Penal Code.

In People v. Decena, we ruled that where the inceptual unlawful aggression of the victim had already ceased, the accused had no more right to kill the victim. In this case, there is no evidence that Aliguer attacked appellant Virgilio when the latter felled him. Sixth. The bare fact that the appellants sustained injuries does not [51] prove that they acted in self-defense or in defense of a relative.

Civil Liabilities of the Appellants

The trial court ordered the appellants to pay, jointly and severally, the heirs of the victims Paulino Urbano and Aliguer Urbano in the amount of P50,000 for each crime as civil indemnity. However, the trial court failed to award to the heirs of the said victims in the amount of P50,000. The decision of the trial court should, thus, be modified. IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of San Jose, Occidental Mindoro, Branch 46, is AFFIRMED with MODIFICATIONS. Appellants Virgilio Caabay, Esteban Caabay, Valentino Caabay and Isidro Caabay are found guilty beyond reasonable doubt of murder in Criminal Cases Nos. R-3733 and R3734. The said appellants are sentenced to reclusion perpetua for each crime; and are directed to pay, jointly and severally, the heirs of Paulino Urbano P50,000 as civil indemnity and P50,000 as moral damages; and to the heirs of Aliguer Urbano the amount of P50,000 as civil indemnity and P50,000 as moral damages. Costs against the appellants. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur. Sandoval-Gutierrez, J., on leave.

The Crimes Committed by the Appellants

The trial court correctly ruled that the appellants are guilty of two counts of murder under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, qualified by abuse of superior strength. However, the trial court erred in appreciating treachery in both cases as an aggravating circumstance against the appellants. First. Adelina did not see how the assault started; hence, she could not testify whether the appellants deliberately adopted a sudden and unexpected method of attack which deprived the victims of an opportunity to [52] defend themselves. Second. Even if proved, treachery was not alleged in the information as mandated by Section 9, Rule 110 of the Revised Rules of Criminal Procedure. Although the crime took place before the effectivity of the said rule, the same should be applied retroactively because it is more favorable [53] to the appellants. On the other hand, the aggravating circumstance of

SECOND DIVISION

intent to kill, evident premeditation and by means of treachery, did then and there willfully, unlawfully and feloniously attack, assault and stab and shot one Palmero L. Milanes, thereby inflicting upon the latter multiple stab and shot wounds which directly cause[d] his death. CONTRARY TO LAW.
[2]

[G.R. No. 132351. January 10, 2002]

In Criminal Case No. 1486-T: THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEXANDER SALVA Y PATEA, FERDINAND SALVA Y PATEA and ROLITO SALVA Y PATEA, accused, ALEXANDER SALVA Y PATEA PATEA, accused-appellants. DECISION QUISUMBING, J.: On appeal is the joint decision dated February 24, 1997, of the Regional Trial Court of Tanay, Rizal, Branch 80, in Criminal Cases No. 1476-T and No. 1486-T against the brothers Alexander, Ferdinand, and Rolito Salva for murder and for frustrated homicide, respectively. In the first case, the court convicted appellant Alexander Salva of murder and appellant Ferdinand Salva of homicide, and ordered both appellants to pay jointly and severally the heirs of the victim, Palmero Milanes, P12,000 as actual damages, P100,000 as moral damages, and the costs of the suit. In the second case, it convicted only appellant Alexander Salva of frustrated homicide and ordered him to pay the victim, SPO1 Mariano Cura, P36,000 as actual damages, P50,000 as moral damages, and P10,000 as attorneys fees. Accused Rolito Salva was acquitted in both cases. Appellant Ferdinand Salva was acquitted in the second case. The indictments against Ferdinand, Alexander and Rolito Salva in Criminal Cases No. 1476-T and No. 1486-T, respectively, read: In Criminal Case No. 1476-T: That on or about the 10th day of January 1995 in the Municipality of Tanay, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping and aiding with one another, armed with a fan knife and .38 caliber revolver (Squires Bingham) with serial number 179533, with
[1]

and

FERDINAND

SALVA

That on or about the 10th day of January 1995 in the Municipality of Tanay, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bladed weapon, conspiring and confederating together and mutually helping and aiding one another, with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and with the said bladed weapon one SPO1 Mariano Tejada Y Cura on his body, thereby inflicting upon the latter wounds which would ordinarily cause his death, thus performing all the acts of execution which should have produced the crime of murder, as a consequence but nevertheless did not produce it by reason of cause or causes independent of his will, that is, due to the timely and able medical attendance rendered to [3] said SPO1 Mariano Tejada Y. Cura. During arraignment Ferdinand, Alexander and Rolito Salva pleaded not guilty. Thereafter, the cases were jointly tried. The prosecution presented the following witnesses: Pablito Tibay, the jeepney conductor; SPO1 Mariano Cura, assisting policeman and private complainant for the charge of frustrated murder; Rodney Tan, one of the jeepney passengers; Elmer Figueroa, tricycle driver; Sgt. Pablo Villegas, responding policeman; Dr. Bayani Viado, attending physician of SPO1 Cura; Jesusa Vergara, medico-legal officer of the PNP Crime Laboratory who autopsied the deceased; SPO1 Joseph Pueblo, investigating policeman; SPO1 Renato Ragadi, patrol mate of SPO1 Cura; and Wilma Milanes, wife [4] of the deceased. The prosecutions version of the incident, as summed up by the Solicitor General, is as follows: On January 10, 1995, around 10:00 a.m., Palmero Milanes was driving a passenger jeepney with Pablito Tibay as conductor going to Tanay, Rizal when Ferdinand Salva waved at them and tried to stop the jeep and then uttered putang ina mo (p. 5-7, TSN, August 8, 1995). Failing to stop the jeep, Ferdinand took a tricycle and followed the jeep but Milanes maneuvered the jeep and went to the police outpost in Pililla, Rizal where he

sought police assistance (p. 8, id.). SPO1 Mariano Cura, clad in half-uniform (wearing khaki pants with civilian short) boarded the jeep with its driver and conductor (pp. 16, 21, 29-30, TSN, September 1, 1995). The three, all seated in the front seat, with Milanes driving, proceeded to Tanay to find Ferdinand to settle a small damage caused by Milanes jeep to Ferdinands tricycle (p. 23, id.). When they reached Barangay Aldea, Tanay, the three got stuck in a traffic jam. While waiting for the traffic jam to ease up, Tibay sighted Ferdinand inside a tricycle (pp. 9-10, TSN, August 18, 1995). Ferdinand who also saw the jeep and its occupants, alighted from the tricycle, approached the jeep, grabbed Milanes out of the jeep and they grappled with each other (p. 11, id.). While Milanes head was under Ferdinands armpit, appellant stabbed Milanes back twice with a fan knife (pp. 11-12, TSN, September 1, 1995). While the fight was going on, SPO1 Cura alighted from the jeep, took his gun and while he was about to make a warning shot, appellant stabbed him (p. 13, TSN, September 1, 1995). Thereafter, Ferdinand freed Milanes and helped Alexander in grappling for the possession of SPO1 Curas gun. At this point, the gun suddenly fired hitting Rolito Salvas foot. Thereupon, Milanes went back to his jeep. Later, Ferdinand got hold of SPO1 Curas gun and shot Milanes who slumped behind the steering wheel of the jeep (pp. 15-16, id.). SPO1 Cura also went inside the jeep holding his wounded stomach (p. 18, id.). Milanes and SPO1 Cura were brought to the Tanay Community Hospital by Rodney Tan. Milanes died while SPO1 Cura survived after receiving treatment at the Morong General Hospital (pp. 19-20, TSN, September 1, [5] 1995). The version of the defense is slightly different, as revealed by the testimonies of appellant and his co-accused herein summarized as follows: According to co-accused FERDINAND SALVA, on January 10, 1995, at about 7:00 A.M., he was driving his own tricycle with his brothers Rolito and Alexander on board. Upon reaching the San Ildefonso Lines terminal, they were caught in a traffic jam when Palmero Milanes alighted from a jeep and boxed Rolito. Ferdinand halted the tricycle and tried to stop Milanes from further boxing Rolito. Later, when he saw SPO1 Mariano Cura point a gun at Rolito, he parried the gun causing it to fire, and a bullet hit

Rolito. Then, SPO1 Cura pointed the gun at him but he was able to hold Curas wrist and the two of them grappled for the gun until both of them reached the drivers seat of the jeep. It was then that the gun fired, hitting somebody. The gun fell on the pavement. He picked up the gun and ran towards Pililla where he was met by a soldier who fired warning shots. He [6] voluntarily surrendered to the police. ROLITO SALVA essentially corroborated his brothers testimony. He added that during the struggle for the gun, it accidentally fired and a bullet hit Milanes. According to him, Ferdinand asked Alexander to bring him to the Tanay General Hospital where his right foot was treated. He recalled that he came to know that on January 9, 1995, the jeep of Milanes had suddenly stopped, causing damage to the front of Ferdinands tricycle. He reported the incident to his brothers and they tried later to look for Milanes. Because of the injury Rolito suffered during the shooting incident on January 10, 1995, Rolito filed an attempted homicide case against SPO1 Cura, which is [7] still pending before the MTC of Tanay, Rizal. According to appellant ALEXANDER SALVA, on January 10, 1995, at about 7:00 A.M., he was at Hulo, Pililla, Rizal on an errand to get money from his employer, Andy Poblete. He failed to get the money but while on his way to Tanay, his brother Ferdinand saw him and asked him to board the tricycle where his other brother Rolito and two passengers were riding. After the two passengers alighted, they continued on the way going to the tricycle terminal in Pililla, but they were caught in a traffic jam. At this juncture, he saw a man box Rolito. He also heard Ferdinand shout, Hoy, hoy, while getting off the tricycle. He saw Ferdinand push away that man after Ferdinand had put his arm around the latters neck. Another person (who turned out to be SPO1 Cura) arrived and hit his brother Rolito with a yantok. Alexander, who had a limp, got off the tricycle, at the very moment Rolito was shot. Alexander said he had grabbed something (later identified as a fan knife) from the tricycles tool kit and swung it against the boxer who turned out to be Palmero Milanes. According to Alexander, he did not know if he hit Milanes. He then saw someone [SPO1 Cura] poke a gun at Rolito, but his brother Ferdinand parried the gun. It fired and a bullet hit Rolito. He then heard Ferdinand shout, May tama si Rolito, dalhin mo sa hospital. Thus, Alexander loaded Rolito in the tricycle and brought him to the Tanay [8] General Hospital. Andreo Poblete, employer of Alexander; Florita Deligencia, a passenger of Rolito and Ferdinand; and Larry Anievas, a bystander, also testified to corroborate the story of the three accused. On February 24, 1997, the trial court rendered a joint decision, thus: WHEREFORE, in view of the foregoing, judgment is hereby rendered:

1.

In Criminal Case No. 1476-T:

THE DEATH OF THE VICTIM OR THAT TREACHERY CHARACTERIZED THE STABBING OF THE VICTIM. II CONVICTING FERDINAND SALVA OF HOMICIDE IN THE ABSENCE OF PROOF BEYOND REASONABLE DOUBT THAT SAID ACCUSED ACTUALLY FIRED THE GUN THAT HIT THE VICTIM. III CONVICTING ACCUSED ALEXANDER SALVA OF FRUSTRATED HOMICIDE NOTWITHSTANDING UNREBUTTED PROOF THAT SAID ACCUSED RUSHED TO THE SCENE ONLY IN DEFENSE OF HIS YOUNGER BROTHER, ROLITO SALVA. IV AWARDING MORAL DAMAGES BOTH TO THE FAMILY OF THE DECEASED AND SPO1 MARIANO CURA IN THE ABSENCE OF PROVEN [14] CIRCUMSTANCES JUSTIFYING IMPOSITION OF THE SAME. Appellant Alexander Salva claims that he cannot be held liable for murder in Criminal Case No. 1476-T, because the stab wounds of Milanes [15] were not the cause of his death. Further, he protests the trial courts finding that his stabbing Milanes was attended by treachery. He insists that he stabbed Milanes in defense of his two (2) brothers. He further assails the trial courts ruling that his brother Ferdinand was liable for homicide because Milanes was accidentally hit by the gun while Ferdinand and SPO1 Cura were grappling for it. He also claims that the identity of the person who fired the shot that killed Milanes was not positively established. In Criminal Case No. 1486-T, appellant assails his conviction for frustrated homicide for the stabbing of SPO1 Cura. Again, he claims he was merely acting in defense of his brothers. He adds, that his offense was only for physical injuries. He had no intention of killing Cura and it was Milanes who provoked them while it was SPO1 Cura who hit his brother Rolito with a yantok. In its brief for the appellee, the Office of the Solicitor General contends that the trial court did not err in its assessment of the credibility of the witnesses, and in giving full faith and credence to those of the prosecution. The OSG adds that the trial court did not overlook facts, which

a) Convicting Alexander Salva of the crime of Murder and he is hereby sentenced to suffer the penalty of reclusion perpetua. b) Convicting Ferdinand Salva of the crime of homicide and he is hereby sentenced to suffer the indeterminate penalty of 8 years and 1 day of prision mayor as minimum to 15 years of reclusion temporal as maximum. c) Acquitting Rolito Salva of the crime charged. d) Both accused Alexander Salva and Ferdinand Salva are also ordered to pay jointly and severally to the heirs of Palmero Milanes the amount of P12,000.00 as actual damages, P100,000.00 as moral damages, and to pay the costs. 2. In Criminal Case No. 1486-T:

a) Convicting accused Alexander Salva of the crime of frustrated homicide and he is hereby sentenced to suffer the indeterminate penalty of 6 years of prision correctional as minimum to 10 years of prision mayor as maximum. The said accused is also ordered to pay SPO1 Mariano Cura the amount of P36,000.00 as actual damages, P50,000.00 as moral damages and P10,000.00 as attorneys fees. b) Acquitting accused Ferdinand and Rolito Salva of the crime charged. SO ORDERED.
[9]

From this decision, Alexander and Ferdinand Salva filed a notice of [10] appeal on March 3, 1997. On December 4, 1998, Ferdinand Salva filed a [11] motion to withdraw appeal, which we granted in a resolution dated January [12] [13] 11, 1999. We are now concerned only with Alexander Salvas appeal. In his brief, appellant Alexander Salva now contends that the lower court gravely erred in: I CONVICTING ACCUSED ALEXANDER SALVA OF MURDER IN THE TOTAL ABSENCE OF PROOF THAT THE ACT OF THE LATTER CAUSED

if considered, would alter the result of the case. The OSG prayed for the affirmance of the conviction of appellant and the penalties imposed. In a criminal case, an appeal throws the whole case wide open for review. Issues whether raised or not by the parties may be resolved by the [16] appellate court. However, considering the assigned errors, we find that the issues for resolution here pertain to (1) the assessment of credibility of the witnesses; (2) the presence of treachery as a qualifying circumstance, and of defense of relatives as a justifying circumstance; and (3) the propriety of conviction of the appellant for murder and for frustrated homicide, and of the corresponding sentences imposed. Anent the first issue, the assessment of the credibility of witnesses by [17] the trial court is generally accorded great respect. In this case, the trial court found that appellant and his co-accused were positively and categorically identified as the offenders by the surviving victim, SPO1 Cura, and corroborated by eyewitnesses Figueroa and Tan. These witnesses testified that appellant and his brother Ferdinand grabbed the victim, [18] Palmero Milanes, out of the jeepney by pulling his left hand. Thereafter, appellant Alexander stabbed Milanes at the back using a 29 or a fan knife, [19] while Ferdinand had his arms around Milanes neck. The knife lacerated [20] the victims lungs. Thereupon, SPO1 Cura alighted from the jeep to pacify them, but appellant Alexander turned to Cura and also stabbed him in the [21] stomach as the police officer was about to fire a warning shot. Alexander and Ferdinand let go of Milanes and then assaulted Cura. But when the wounded Milanes had forced himself onto the drivers seat of the jeepney [22] and started its engine to escape, Ferdinand shot and hit him at the back. The trial court found that both appellant Alexander and his brother Ferdinand inflicted the wounds that caused the death of the deceased. The testimonial evidence and the physical evidence support said finding. The official report stated that the cause of death of Milanes was hemorrhage [23] resulting from gunshot and stab wounds in the trunk of his body. Appellants claim that he acted in defense of relatives (brothers), in our view, cannot be sustained. To invoke this justifying circumstance successfully, there should be reasonable necessity for the action taken as [24] well as the means used. Here, the weapon used and the grave wounds inflicted on the victims negate the reasonableness of appellants action taken allegedly in defense of his brothers. Moreover, on this point, we find appellants testimony on record to be unconvincing, confused, and evasive. Hence there is no sufficient proof of defense of relatives which, like self-defense, must be proved positively and convincingly. Neither does appellants contention, that it was uncertain whether it was SPO1 Cura or Ferdinand Salva who pulled the trigger, have any

merit. SPO1 Cura and Elmer Figueroa categorically testified that it was Ferdinand who shot Milanes while the latter was trying to start the engine of [25] his jeep in order to escape. We now come to the nature of the offense committed by appellant and the propriety of his conviction for murder. After a careful consideration of the evidence on record, we are convinced that the crime committed by [26] Alexander Salva is homicide only, not murder qualified by treachery. Treachery (alevosia) is committed 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 [27] his person. In this case, attendant circumstances including the sequence of events, as found by trial court and as shown by the records, rule out the presence of the first element of alevosia. True, appellant stabbed Milanes at the back while Ferdinand encircled his arm in a tight grip around the victims neck. But recall, however, that Milanes was together with an armed [28] policeman (SPO1 Cura), Rodney Tan, and other passengers. There were also on-lookers. Note likewise that the incident happened at past 7 oclock [29] [30] A.M. during a traffic jam. The presence of Cura (albeit in civilian attire) and his companions who came to Milanes rescue shows that the victim was [31] not completely helpless. Neither is there sufficient evidence to establish that appellant consciously adopted the mode of attack. The records reveal that (1) a day earlier there was a mishap involving Milanes jeepney and Ferdinand Salvas [32] tricycle; and (2) a verbal confrontation with curses had ensued between appellants brother Ferdinand and Milanes. This was before the adversaries found themselves in a traffic jam and the Salvas yanked Milanes out of the [33] jeepney. Treachery is not present where the victim, before being attacked, had a heated argument with one of the malefactors which must have placed him on guard, aside from standing face to face with them, so that the initial [34] assault was not sudden or unforeseen. Even if the aggression was from [35] behind, it is not treacherous if preceded by a heated argument. Finally, as SPO1 Cura himself admitted on cross-examination, the meeting between the two groups was accidental, while the two vehicles where they were on board were not moving due to the heavy traffic. It was only upon sighting Milanes, after 10 to 15 minutes while on a traffic standstill, [36] did appellant and co-accused assault Milanes. Treachery cannot be considered when the meeting between the victim and the accused was only [37] accidental.

In sum, we agree with appellant that the killing of Milanes was not characterized by treachery, hence it was only homicide and not murder. Appellants conviction for frustrated homicide for the stabbing of SPO1 Cura, however, must be sustained. Appellants intent to kill as earlier discussed is reflected by the weapon he used; and the nature and position of [38] the wounds inflicted. Dr. Viado testified that SPO1 Cura suffered thru and thru laceration of the gall bladder, stomach and the jejunum as a result of [39] the stabbing by appellant. Were it not for timely medical attention, SPO1 Cura would have died from said wounds. Coming now to the propriety of the sentences imposed on appellant. Without any mitigating or aggravating circumstance, the penalty for homicide is reclusion temporal,imposed in its medium period. Applying the Indeterminate Sentence Law, appellants sentence should be prision mayor to reclusion temporal in its medium period, for the death of Palmero Milanes. The penalty for frustrated homicide, which is one degree lower, [40] is prision mayor, imposed in its medium period. Again applying the Indeterminate Sentence Law, appellant should be sentenced to prision [41] correccional to prision mayor in its medium period, for the frustrated homicide in the stabbing of SPO1 Cura. On the award of damages. The award of P100,000 as moral damages in Criminal Case No. 1476-T does not appear to be amply supported by the evidence on record. Moral damages are not awarded to punish the defendant but to compensate the heirs of the victim. Pursuant to current jurisprudence, the award of moral damages should only be P50,000. But civil indemnity in the amount of P50,000 for the death of Palmero Milanes should likewise be awarded to his heirs. The award of P12,000 for actual [42] damages is supported by the evidence and should be affirmed. In Criminal Case No. 1486-T, for frustrated homicide, the award of P50,000 as moral damages to SPO1 MARIANO CURA is properly [43] reduced to P20,000. But the award of P36,000 as actual damages should be increased to P46,770.65 in accordance with the evidence [44] presented. Finally, the award ofP10,000 for attorneys fees is proper and ought to be affirmed. WHEREFORE, the decision appealed from is AFFIRMED with MODIFICATIONS. In Criminal Case No. 1476-T, appellant ALEXANDER SALVA is found guilty of homicide. He is sentenced to suffer an indeterminate penalty of ten (10) years of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum. He is further ordered to pay jointly and severally with his coaccused Ferdinand Salva, the heirs of PALMERO L. MILANES, the amount of P50,000 as civil indemnity and P12,000 as actual damages but only P50,000 as moral damages.

In Criminal Case No. 1486-T, appellant ALEXANDER SALVA is found guilty of frustrated homicide, and he is sentenced to an indeterminate prison term of one (1) year and one (1) day of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor medium, as [45] maximum. He is also ordered to pay SPO1 MARIANO CURA the amount of P46,770.65 as actual damages, P20,000 as moral damages and P10,000 as attorneys fees. SO ORDERED. Bellosillo, (Chairman), Mendoza, and De Leon, Jr., JJ., concur. Buena, J., on official leave.

SECOND DIVISION JOVITO CABUSLAY, Petitioner, G.R. No. 129875 Present: PUNO, J., Chairman, - versus AUSTRIA-MARTINEZ, CALLEJO, SR., TINGA, and CHICO-NAZARIO, JJ.

WHEREFORE, accused Celso G. Regencia, Rosello Canoy, Nilo Montebon and Gerry Cane are ACQUITTED on reasonable doubt. Accused Jovito Cabuslay is found GUILTY beyond reasonable doubt of the crime of homicide and is sentenced to an indeterminate penalty of imprisonment of Ten (10) years and One (1) Day of prision mayor as minimum, to Fourteen (14) Years, Eight (8) Months and One (1) Day of Reclusion Temporal, as maximum, with all the accessory penalties provided for by law, and to indemnify the heirs of Pacquito Umas-as in the amount of Fifty Thousand Pesos (P50,000.00) for actual damages and Fifty Thousand Pesos (P50,000.00) for moral damages, and to pay the costs. SO ORDERED.[3] In an Information[4] dated 10 August 1993, petitioner SPO2 Jovito Luna Cabuslay, Senior Inspector Celso Gomera Regencia, SPO4 Rosello Rodriguez Canoy, C2C Nilo Rico Montebon and C2C Gerry Orillaneda Cane were charged with murder, committed as follows: That on or about August 5, 1992, in Kauswagan, Lanao del Norte, Philippines, within the jurisdiction of this Honorable Court, the said accused, SENIOR INSPECTOR CELSO G. REGENCIA, SPO4 ROSELLO CANOY, SPO2 JOVITO CABUSLAY, C2C NILO MONTEBON AND C2C GERRY CANE, all public officers, being then members of the Philippine National Police assigned at the PNP Provincial Headquarters of Lanao del Norte, acting in the capacities aforesaid and conspiring, confederating and helping one another, while manning a mobile checkpoint at Libertad, Kauswagan, Lanao del Norte, thus committing the offense in relation to office, and with intent to kill, did then and there wilfully, unlawfully, feloniously and treacherously shoot PAQUITO UMAS-AS, with their firearms,

PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN (Third Division), Respondents. Promulgated:

September 30, 2005 x-------------------------------------------------------------------x

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

thereby inflicting mortal wounds upon the latter which caused his instantaneous death.[5]

parked in front of them.[11] Four policemen alighted, followed by a driver. The police thereafter halted the collector who was riding a motorcycle from Lapayan. The collector was wearing a blue denim jacket with folded sleeves and blue denim pants.[12]

On arraignment, petitioner and his co-accused all pleaded not guilty. Forthwith, trial ensued with the prosecution presenting as witnesses Dr. Tammy Uy, Bernabe Purificacion Arenga, Leoncio Tagapulot Zaragosa and Generoso Caayao Umas-as. The prosecution presented evidence proving the following as facts: Paquito Umas-as, 34, was one of the four children of Generoso Umas-as of Bulua, Cagayan de Oro City. Still single, Paquito earned a living as a collector of payments for assorted articles such as jackets, mats, thermos and plates that he sold on credit. Paquito collected as much as P70,000.00 for a period of four months and the net profit of such collections was divided equally between him and his employer. [6]

The police asked the collector to show his identification card (ID). The collector took the ID out of his left pocket and when it reached the front man, one of the policemen, who Zaragosa later verified as the petitioner, opened fire at the collector whose right hand was then raised. The four other policemen meanwhile had their firearms pointed at the collector. [13] Petitioner, who was four meters away from the collector, consumed the entire magazine of his M-16 armalite in firing at him. The collector fell to the ground and was still moving when the police placed him on board a vehicle and brought him to Kolambugan.[14] One of the policemen rode on the collectors motorcycle and likewise headed for Kolambugan.[15] Upon the request of Pedro P. Legaspi, barangay captain of Bulua, Cagayan de Oro City,[16] NBI forensic chemist Bernabe P. Arenga examined the victims body, later identified as Paquito Umas-as, on 10 August 1992 to determine the presence of gunpowder nitrates on his hands. Arengas report revealed that the victim was negative for gunpowder nitrates.[17] Arenga opined that on the average, nitrates would be lost within a seventy-two (72)hour period; that there had been instances when the substance would remain on a living person up to nine days; that nitrates could not penetrate rubber gloves; that no amount of washing can remove the nitrates; and that even the application of formalin does not affect the presence of nitrates in the hands of a person.[18]

In collecting payments, Paquito used a motorcycle he bought on credit from his employer.[7] His collection brought him to such places as Manticao, Iligan and Kolambogan.[8] He rented a house in Iligan City but every fifteenth (15th) day of the month, Paquito would go home to his family to give them a sack of rice.[9] At around 8:30 in the morning of 5 August 1992, Leoncio Tagapulot Zaragosa, a refrigeration technician helper and resident of Roosevelt Street, Iligan City, was conversing with Felix Lauriana[10] near the school building in Lapayan, Libertad, Kauswagan, Lanao del Norte when a Hammer (Hummer) truck

On 11 August 1992, Dr. Tammy Uy, a medico-legal officer of the NBI in Cagayan de Oro City, conducted a post-mortem examination on the body of Paquito Umas-as. At the time of examination, the victims body had already been cleaned and embalmed. Dr. Uys examination disclosed that the cause of death was severe hemorrhage secondary to multiple gunshot wounds. There were eight (8) gunshot wounds and each wound was considered fatal.[19] To prove damages, Generoso Umas-as testified that he lost consciousness upon learning of the death of his son Paquito. Paquitos family spent P8,000.00 for the wake and P10,000.00 for his burial. Paquito had left his father P12,000.00 to pay for some appliances the former had bought; but the latter, to underwrite funeral expenses, still had to sell his land for P100,000.00 onlyP25,000.00 of which had been paid in advance by the buyer. However, Generoso could not remember where he placed the receipts for the wake and burial expenses.[20] The defense presented a different version of the commission of the crime. Petitioner presented as witnesses Julmunier Akbar Jubail, Celso Gomera Regencia and Jovito Luna Cabuslay. Police Superintendent Julmunier A. Jubail, Provincial Director of the Philippine National Police (PNP), Lanao del Norte Command stated that he had received a reliable intelligence report of a plot to assassinate the Mayor and Vice-Mayor of Kauswagan, Lanao del Norte and Governor Abalos and his family. In response to the intelligence report, he dispatched a team of PNP personnel to conduct mobile checkpoints along the national highways in several municipalities and to check on people who would possibly carry out the plot. Jubail claims that the intelligence report was proven accurate after a few months because the Vice-Mayor of Kauswagan was killed in Samborong, Linamon and in December of the same year, Governor Abalos was assassinated in Iligan City.[21]

The team headed by Senior Inspector Celso G. Regencia included SPO4 Rosello Canoy, SPO2 Jovito Cabuslay, C2C Nilo Montebon and C2C Gerry Cane. Their area of responsibility consisted of the twenty-two (22) municipalities of Lanao del Norte. In full military outfit, save for Canoy as he was assigned to the Intelligence Operatives Command, the men established a mobile checkpoint on 5 August 1992 at the national highway, Barangay Libertad, Kauswagan, Lanao del Norte for the purpose of intercepting armed men who intend to carry out the assassination plot.[22] At about 8:30 in the morning, a man riding on a red Honda motorcycle[23] going to the direction of Pagadian City approached the mobile checkpoint. The motorcycle rider was allegedly wearing a black bonnet, sunglasses, sweatshirt and gloves that covered the half portion of his fingers.[24] Regencia testified that he signaled the motorcycle rider to stop at the right side of the road. He asked for the identification card of the motorcycle rider who pretended to reach for his wallet, but instead pulled out a gun. He heard a shot and his thigh went numb. As he rolled to the ground, he heard a volley of gunshots after which petitioner approached him. Regencia then approached the motorcyclist and removed his bonnet to be able to identify him. Regencia later found out that the motorcyle rider was shot by petitioner. [25] Regencia ordered his men to load the motorcycle rider to the truck. The victim later identified as Paquito Umas-as was still alive when he was loaded on the hummer vehicle to be brought to a hospital, but was pronounced dead on arrival by Dr. Caga, the attending physician. Regencia then asked that he be given first-aid treatment for the wounds he sustained. He thereafter turned over the riders motorcycle, sunglasses and revolver to the police station

at Kauswagan. And after bringing the victims body to a funeral home in Kolambugan, he proceeded to Baroy General Hospital where his wounds were treated by a certain Dr. Fabin.[26] To prove that he was wounded during the incident, Regencia showed to the court a quo the scars caused by the gunshot wounds. There were three scars, one of which was the entry of the bullet and the other two were splinter wounds. He said that the bullet used was the kind that splinters upon hitting an object. He presented a medical certificate under the signature of Dr. Demterio U. Opamen, Jr.[27] For his defense, petitioner confirmed Regencias testimony that the latter had directed an approaching motorcyclist to stop at the right side of the highway. He heard Regencia ask the motorcycle rider in Visayan dialect to show his identification card. Cabuslay then saw Paquito Umas-as shoot Celso Regencia. This and his belief that he was the next target prompted him to shoot the motorcycle rider with his M-16.[28] Police Superintendent Jubail was immediately informed of the incident and on the basis of Regencias account, he sent out a Spot Report[29] to inform Recon 9 and 13. The report is couched as follows: SPOT REPORT x x x CMM SPO2 JOVITO CABUSLAY CMM INSP REGENCIAS BACK-UP OPEN FIRE (sic) HITTING AND FATTALY (sic) WOUNDING SAID UNIDENT(IFIED) PERSON WWITH (sic) MULTIPLE GUNSHOT WOUNDS IN HIS BODY AND DIED ON THE SPOT PD RESPONDING PNP ELEMETS RECOVERED FROM THE VICTIMS BODY ALFA CAL. 38 REVOLVER SMITH AND WESSON (HM) SN 236701 WITH ONE (1) EMPTY SHELL AND 5 UNSPENT AMMO x x x

The incident found its way to the police blotter of the police station of Kauswagan, Lanao del Norte.[30] It is embodied in aCertification[31] signed by Inspector Fulgencio dela Pena Raguine, Chief of Police, issued at the request of Atty. Arthur Abundiente for trial purposes and formulated in this wise: Police Blotter Page Nr. 496-Entry Nr. 9187 & 9188= 050810H Aug 1992 SPO3 Nestor S Ortiz, Intel NOR this station, left stn with elements from Lanao del Norte PNPC under INSPECTOR CELSO G REGENCIA PNP and proceeded to Libertad, Kauswagan, LN to follow-up suspects allegedly hired for killing Mpl Mayor Myron B. Rico of Kaus, LN. 050835H Aug 1992 SPO3 Nestor Ortiz PNP returned station informed that suspects were intercepted at Libertad, Kaus, LN but when confronted by the PNP team, fired and shot INSPECTOR CELSO G REGENCIA PNP using cal. 38 revolber (sic) (Homemade) hitting on his right thigh prompting SPO3 Cabustay (sic), fired back to the suspect hitting at the chest causing the instantaneous death of the suspect. One cal. 38 revolber (sic) (Homemade) with 5 live ammos and one empty shell at the chamber, one rayban (sunglass) and one motorcycle (Honda-Camel backtype) color red with out plate Nr. Police Blotter Page Nr. 497- Entry Nr.9191= 081240H Aug 1992 Romeo Umas-as, 42 years old x x x. Police Blotter Page Nr. 501-Entry Nr.9228= 251315H Aug 1992 Impounded Honda Motorcycle x x x. Police Blotter Page Nr. 508-Entry Nr. 9100=

021130H Oct 1992 COP Bartolini RD got the one deposited rev. cal. 38 SW S#236701 w/ (4) four live ammo and one empty shell past 30th day of Sep 92 for NBI examination at Cagayan de Oro City.

Petitioner justified the shooting of Paquito Umas-as because he believed that he would be the next person to be shot at by the victim; and having acted in defense of his person and that of his superior officer, he asserted before the court a quo that he has no criminal liability because of the attendance of the following circumstances: (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means employed to prevent or repel the unlawful aggression of the victim; (c) lack of sufficient provocation on his part, and in the case of defense of his superior officer, he was not induced by revenge, resentment, or other evil motives. All of these requisites being present, petitioner claimed there was legal justification for shooting Paquito Umas-as.[32] The Sandiganbayan however grave credence to the version of the prosecution and rejected the version of petitioner. So, it found him guilty beyond reasonable doubt of the crime of homicide. It accorded full faith and credence to the testimony of Zaragosa as it was categorical, straightforward, spontaneous and consistent. Moreover, it observed that no proof was adduced to show that Zaragosa was moved by some evil motive to falsely testify against the accused Cabuslay.[33] The Sandiganbayan likewise noted grave deficiencies in the evidence of the defense as follows: (1) The physical existence of the handgun allegedly used by the victim Paquito was not established as the same was not presented before the court during the trial;[34] (2) The affidavit executed by Gualberto Dayot Pasco-presented by the defense to impeach the credibility of Zaragosa-was taken under intimidating and dubious circumstances, which fact creates doubt as

to the affidavits voluntariness and credibility;[35] (3) The medical certificate purportedly evidencing that Regencia had been shot has no probative value as the doctor who executed the same did not testify during trial. Notably, the medical certificate was executed by a doctor different from the one who treated Regencias wound;[36] (4) The number of gunshot wounds inflicted upon the victim betrays petitioners claim of reasonable necessity of the means used to repel the unlawful aggression allegedly displayed by the victim.[37] Hence, petitioner filed the instant petition before the Court, insisting that the Sandiganbayan erred in not crediting him the justifying circumstance of self-defense or defense of a stranger or the lawful exercise of a right or office.[38] Pursuant to the Courts Resolution[39] dated 3 September 1997, the Office of the Solicitor General (OSG) submitted before the Court a Manifestation and Motion In Lieu Of Comment[40] to aid the resolution of the instant petition. In said manifestation, the OSG stated that it is the Office of the Ombudsman which should represent the People in cases elevated to the Court from the Sandiganbayan except in cases filed under Executive Orders Nos. 1, 2, 14, and 14-A issued in 1986. Nevertheless, it opined that the conviction of petitioner should be reversed because the evidence of the prosecution when pitted against that of the defense may not stand close scrutiny. It also asserted that the ponente of the appealed decision was not yet a member of the Third Division when the witnesses testified and when the parties presented their evidence; hence, the applicability of the Courts ruling in People v. Gutual,[41] that no respect can be accorded to the trial courts findings of fact where the judge who penned the questioned decision heard only one of the witnesses and only at the surrebuttal stage.[42]

In its Comment,[43] the Office of the Ombudsman through the Office of the Special Prosecutor seeks the denial of the instant petition on the ground that the defense failed to impeach the credibility of Zaragosa. It agrees with respondent court that petitioners story was contrary to human experience and hence, it correctly debunked self-defense and defense of a stranger as grounds for petitioners acquittal.[44] The petition is without merit. While the rule that the factual findings of the court a quo are generally not disturbed on appeal because the trial judge had the best opportunity to observe them and the manner by which they testify is concededly not applicable to the instant case considering that the ponente of the assailed Decision was not the one who heard all the witnesses, nevertheless, after a careful review of the records of the case, the Court finds no reason to disturb the conclusions reached by respondent court. As held in Hugo v. Court of Appeals,[45] the efficacy of a decision is not necessarily impaired by the fact that the ponente only took over from a colleague who had earlier presided over the trial. For it does not follow that a judge who was not present during the trial cannot render a valid and just decision. Moreover, it should be stressed that the Sandiganbayan, which functions in divisions of three Justices each, is a collegial body which arrives at its decisions only after deliberation, the exchange of view and ideas, and the concurrence of the required majority vote.[46] Simply put, the ponente of the assailed Decision is not the Third Division of the Sandiganbayan. He alone does not speak for and on behalf of his Division. Each Division of the Sandiganbayan is a threeman body whose members each have one vote to cast in every deliberation concerning a case or any incident therein that is within its jurisdiction.

We have minutely scrutinized the assailed Decision and find it amply supported by the evidence on record. Petitioner claims that he acted in self-defense and in defense of Regencia. One who invokes self-defense admits responsibility for the killing. Accordingly, the burden of proof shifts to the accused who must then prove the justifying circumstance. He must show by clear and convincing evidence that he indeed acted in self-defense, or in defense of a relative or a stranger. With clear and convincing evidence, all the following elements of self-defense must be established: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person claiming self-defense.[47] Self-defense, like alibi, is a defense which can easily be concocted. It is well-settled in this jurisdiction that once an accused has admitted that he inflicted the fatal injuries on the deceased, it is incumbent upon him in order to avoid criminal liability, to prove the justifying circumstance claimed by him with clear, satisfactory and convincing evidence. He cannot rely on the weakness of the prosecution but on the strength of his own evidence, for even if the evidence of the prosecution were weak it could not be disbelieved after the accused himself had admitted the killing.[48] Thus, petitioner must establish with clear and convincing evidence that the killing was justified, and that he incurred no criminal liability therefor. In order that defense of a stranger may be appreciated, the following requisites must concur: (1) unlawful aggression by the victim; (2) reasonable necessity of the means to prevent or repel it;

and (3) the person defending be not induced by revenge, resentment or other evil motive.[49] Unlawful aggression is the first and primordial element of selfdefense. Of the three requisites, it is the most important. Without it, the justifying circumstance cannot be invoked. If there is no unlawful aggression, there is nothing to prevent or repel.[50] Unlawful aggression refers to an attack or a threat to attack, positively showing the intent of the aggressor to cause injury. It presupposes not merely a threatening or an intimidating attitude, but an actual, sudden and unexpected attack or an imminent danger thereof, which imperils ones life or limb. Thus, when there is no peril, there is no unlawful aggression.[51] It is crucial to ask whether the victim Paquito was an unlawful aggressor. We answer this question in the negative. Aggression to be unlawful, must be actual and imminent, such that there is a real threat of bodily harm to the person resorting to self-defense or to others whom that person is seeking to defend. Petitioner asserts that he was the victims next target, thus the need to shoot the victim in self-defense. His claim should be disbelieved. As he himself had explicitly testified before respondent court, the hummer jeep was behind him and was parked about three to four meters from the national highway.[52] He also stated that Paquito could not have seen the hummer jeep because it was obscured by Muslim houses.[53] It only follows that if from Paquitos perspective, he cannot see the hummer jeep which is a fairly large vehicle, then he could not have seen petitioner as well. If Paquito cannot see petitioner from where he was positioned, then Paquito could not have possibly aimed to shoot at petitioner. Petitioners contention therefore that there was an imminent threat of bodily

harm coming from Paquito upon his person is at best illusory. There was no peril, ergo, there was no unlawful aggression. It should also be recalled that at the time, Cane was on top of the hummer jeep manning the machine gun.[54] If Regencia had indeed been shot as the defense insists, then Cane was better situated to defend Regencia. It is implausible how an officer like him, in such a strategic position and trained in the operation of the said weapon could have omitted firing a shot in Regencias defense. More to the point, it is beyond credulity that the outbursts of gunfire hardly elicited any reaction from the other police officers who were only a few meters away from the crime scene and who continued conducting their search on the bus which was then about to pass the checkpoint.[55] Likewise noteworthy is the fact that after the second burst of fire on Paquito, knowing that Paquito was still alive[56] and in all probability was still holding a handgun,[57] petitioner chose to assist Regencia instead of making sure that Paquito had been immobilized and disarmed, basic to a policemans training. In addition, the claim of the defense that Paquito shot Regencia on his right thigh is untenable. Petitioner would have the Court believe that Paquito dared challenge five policemen, four of them in full battlegear, at a checkpoint and armed with only a handgun. This is contrary to ordinary human experience, as well as the human instinct which is to flee for dear life and seek safety. If indeed Paquito was armed and had criminal designs in his mind, the natural tendency upon seeing a checkpoint ahead would be to abort ones plans and leave the premises immediately. Petitioners story not only was contrary to the ordinary course of nature and the ordinary habits of life, in all appearances it was also contrived.[58] Respondent court was correct in rejecting it.

We also confirm that the medical certificate presented by Regencia to prove that he had been shot by the victim has no probative value. The physician who signed the same was never presented as witness for the defense. We also note that the physician who signed said medical certificate, a certain Dr. Demterio U. Opamen, Jr., is different from the doctor who according to Regencia had treated his wounds.[59] It is also worthy of note that the defense never presented in evidence the gun Paquito allegedly use to shoot Regencia. The gun was also not clearly identified. Unlawful aggression on the part of the victim must be positively proved and said gun would have been a vital evidence to establish this requisite. Petitioner, however, insists that he would have presented the gun had not respondent court pressured him to rest his case and submit it for decision. Such contention hardly inspires belief. Records reveal that petitioner never made it known to respondent court that the defense would be presenting the gun allegedly used by Paquito. What the defense did manifest was their intention to present one Major Bartolino to testify that he had received the gun allegedly used by Paquito and that he had brought it to the NBI on 30 September 1992 for examination. It should be underscored that the defense was not even sure that there was an NBI report on said examination. The counsel for the defense manifested before respondent court, as follows: ATTY. ABUNDIENTE: x x x I intended, Your Honor, Please, to present two more witnesses, Major Bartolini who received the gun and he will testify on this particular testimony that he was the Station Commander of the

municipality of Kauswagan, Lanao del Norte at the time of the incident and then he received this gun from the team of Capt. Regencia on August 5, 19 (sic) and that he took the gun for NBI Examination sometime in the month of October, 1992, no, on the 30th day of September, 1992. CHAIRMAN: This was covered by police blotter? ATTY. ABUNDIENTE: Yes, Your Honor. CHAIRMAN: You dont need the testimony of Bartolini, but do you have the report of the NBI? ATTY. ABUNDIENTE: That is why, Your Honor, because we have not received any communication from Bartolini . . . CHAIRMAN: How did you come to know that Bartolini sent this firearm to the NBI for examination? . . . ATTY. ABUNDIENTE: Because it is stated in the blotter, Your Honor, . . . dated September 1992 for NBI examination in Cagayan de Oro City, Entry No. 91000, page 108 . . .

CHAIRMAN: Does it matter whether you can prove the examination report of the NBI or not? ATTY. ABUNDIENTE: I dont know if there was a report of the NBI examination . . . CHAIRMAN: Precisely . . .[60]

from Paquito and which were turned over to the Provincial Police Command were the victims motorcycle, sunglasses and the alleged gun. The police blotter reporting the incident confirms their testimonies. Interestingly, said police blotter also makes no mention that gloves were recovered from the victim.[64] Anent the credibility of Zaragoza, the sole prosecution eyewitness on whose testimony the version of the prosecution is anchored, we find that petitioner failed to impeach his credibility. No evidence was shown that Zaragoza was actuated by an improper motive. As such, there is no cogent reason why the Court should deny Zaragozas testimony the full faith and credit it deserves. On the alleged inconsistencies in Zaragozas testimony, it is relevant to state that a witness is not expected to remember an occurrence with perfect recollection of the minute details. Thus, even the most truthful of witnesses may err and often give confusing statements. What is important is that Zaragosa unwaveringly, forthrightly and unequivocally declared that petitioner shot at the victim. Neither did he falter in identifying the gunman.[65] All in all, petitioner has failed to prove unlawful aggression on the part of the victim. Without this essential element, petitioner cannot successfully invoke self-defense. Even assuming that he tried to defend a stranger, his defense would not prosper. In defense of a stranger, unlawful aggression on the part of the victim is also indispensable. In both self-defense and defense of a stranger, unlawful aggression is a primordial element. Granting arguendo that there was unlawful aggression, we find that petitioners contention that he employed reasonable means to repel the aggression must fail. It is settled that reasonable necessity of the means employed does not imply material commensurability

The defense was well aware of the relevance of the NBI report to prove their allegations that the victim was carrying a gun and used the same on Regencia, especially since the victim was reported to be negative of nitrates on his hands. No cogent reason could be thought of for the failure to secure a copy of the report or even know of its existence. It should be noted that the examination was made as early as September 1992. A partys failure to produce evidence, which if favorable would naturally have been produced, is open to the inference that the facts were unfavorable to his case.[61] This Court can only conclude that said gun never existed, and this explains the failure of the defense to present it before respondent court. Thus, it is immaterial to delve on the issue raised by the petitioner on the discrepancy of the make of the gun as noted by respondent court in its Decision. Parenthetically, petitioner stresses that the victim had tested negative for gunpowder nitrates as the latter had been wearing gloves at the time of the incident. This claim runs counter to his[62] and Regencias[63] testimony that the only things recovered

between the means of attack and defense. What the law requires is rational equivalence.[66] Also, the nature and number of wounds suffered by Paquito negate any claim of self-defense or defense of a stranger. The Court notes that the victim sustained eight gunshot wounds which were all fatal as they affected vital organs.[67] Petitioner testified that he pulled the trigger of his armalite twice.[68] He aimed at the front of his body, at the chest, up to the stomach.[69] Had petitioner merely defended himself from the victims unlawful aggression, one shot to immobilize him would have been enough. There was no reason for petitioner to shoot him seven more times, even aiming at his vital organs. It bears repeating that the nature and number of wounds inflicted by the accused are constantly and unremittingly considered as important indicia which disprove a plea for self-defense or defense of stranger because they demonstrate a determined effort to kill the victim and not just defend oneself.[70] In the instant case, Paquitos wounds serve to tell us that petitioner was induced by revenge, resentment or other evil motive and that he was set on killing the victim. Petitioners avowal that his first shot was single but went automatic on the second shot is likewise unbelievable.[71]Petitioners armalite has a selector that switches it from single shot to automatic. Since it was petitioner who was in possession of the firearm and he admitted that he fired the shots, we reasonably conclude that it was he who switched the firearm to automatic firing. All told, petitioner failed to satisfy the requirements of selfdefense and defense of a stranger to justify the shooting of Paquito. Next, petitioner contends that the killing of Paquito resulted from the lawful performance of his duty as police officer. However,

such justifying circumstance may be invoked only after the defense successfully proves that the accused acted in the performance of a duty, and the injury or offense committed is the necessary consequence of the due performance or lawful exercise of such duty.[72] These two requisites are wanting in this case. The victim was not committing any offense at the time. Petitioner has not sufficiently proven that the victim had indeed fired at Regencia. Killing the victim under the circumstances of this case cannot in any wise be considered a valid performance of a lawful duty by a man who had sworn to maintain peace and order and to protect the lives of the people. As aptly held in People v. de la Cruz,[73] Performance of duties does not include murder. Murder is never justified, regardless of the victim. A final word on the civil liability. An appeal in a criminal proceeding throws the whole case open for review and it becomes the duty of the Court to correct any error in the appealed judgment, whether it is made the subject of an assignment of error or not. Therefore, we delete the award of P50,000.00 as actual damages. To seek recovery of actual damages, it is necessary to prove the actual amount of loss with reasonable degree of certainty premised upon competent proof and on the best evidence obtainable. Since the prosecution did not present receipts to prove the actual losses suffered, such actual damages cannot be awarded.[74] On the other hand, consistent with prevailing jurisprudence, we award P50,000.00 by way of indemnity ex delicto to the heirs of Paquito. When death occurs as a result of a crime, the heirs of the deceased are entitled to such amount as indemnity for death without need of any evidence or proof of damages.[75] We also affirm the award of moral damages in view of the finding that Generoso Umas-as lost consciousness and suffered anguish and sorrow because of the incident.

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

DANTE O. TINGA

Associate Justice

FIRST DIVISION

On September 13, 1990, the trial court arraigned both accused. They each entered a plea of not guilty. Trial ensued. After due trial, on June 21, 1991, the trial court rendered a decision, the dispositive portion of which reads: WHEREFORE, the Court hereby declares the accused DOROTEO TOBES alias DOTING guilty of the crime of HOMICIDE beyond a reasonable doubt, as principal, and considering the presence of one mitigating circumstances without any aggravating circumstance to offset the same, hereby sentences him to suffer an indeterminate penalty ranging from EIGHT (8) YEARS OF prision mayor, as minimum, to TWELVE (12) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of reclusion temporal, as maximum, and to pay the costs. Likewise, the Court condemns the said accused to indemnify the heirs of the victim Joel Escareal in the amount of P12,000.00 to pay the widow and children of the same victim moral damages of P20,000.00, actual damages of P6,000.00 and attorneys fees of P5,000.00. However, the corresponding filing fees based on the total amount herein awarded, shall be assessed and shall constitute as first liens upon the total amount of awards herein ordered. The Court hereby finds accused WILFREDO POLLENTES alias PIDO guilty beyond a reasonable doubt of the felony of SLIGHT PHYSICAL INJURIES and considering one mitigating circumstance without any aggravating circumstance, sentences him to suffer TEN (10) days of arresto menor and to pay the costs. In the service of their sentence, the accused shall be credited with the full time of their preventive imprisonment provided they had agreed voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners; otherwise, they shall be entitled to only four-fifths (4/5) thereof; pursuant to the provisions of Article 29 of the Revised Penal Code as amended by Republic Act 6127. SO ORDERED.
[4]

[G.R. No. 127441. October 5, 2001]

DOROTEO TOBES @ DOTING, petitioner, vs. COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents. DECISION PARDO, J.: Appeal via certiorari from the decision of the Court of Appeals [2] affirming with modification the trial courts decision finding petitioner guilty of homicide and sentencing him to an indeterminate penalty of eight (8) years of prision mayor as minimum, to twelve (12) years, ten (10) months and twenty (20) days of reclusion temporal, as maximum, to indemnify the heirs of the victim Joel Escareal in the amount of P12,000.00, moral damages of P20,000.00, actual damages of P6,000.00 and attorneys fees of P5,000.00 and to pay the costs. On August 27, 1990, the provincial prosecutor of Northern Samar filed with the Regional Trial Court, Northern Samar, at Catarman an information charging accused Wilfredo Pollentes @ Pido and Doroteo Tobes @ Doting with murder, as follows: That on or about the 8 day of July, 1990, at about 8:30 oclock in the evening, in Barangay Sta. Clara, Municipality of Bobon, Province of Northern Samar, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a gun, conspiring with and confederating together and mutually helping each other, with deliberate intent to kill and thru treachery and evident premeditation and taking advantage of their superior strength, did then and there, wilfully, unlawfully and feloniously attack, assault and shoot one JOEL ESCAREAL with the use of the said gun, which the accused had provided themselves for the purpose, thereby inflicting upon said Joel Escareal a gunshot wound which caused the instant death of said victim. CONTRARY TO LAW.
[3] th [1]

On July 05, 1991, petitioner appealed the decision to the Court of [5] Appeals. On December 3, 1996, the Court of Appeals promulgated its decision affirming the appealed decision with modification. We quote the decretal portion:

WHEREFORE, premises considered, the decision appealed from is hereby AFFIRMED with a MODIFICATION that the awarded civil indemnity be increased from P12,000.00 to P50,000.00. Costs against the appellant. SO ORDERED.
[6]

place, prosecution witnesses Cenon Cobrana and Joverto Sula were just nearby; in fact, Cobrana was about 5 meters away while Sule was more [8] or less 3 meters in distance. The issues raised are:

Hence, this appeal.

[7]

(1) whether or not there was unlawful aggression on the part of the victim; (2) whether the mitigating circumstances of incomplete defense of relative/stranger, sufficient provocation or threat on the part of the victim, passion and obfuscation and voluntary surrender may be appreciated in favor of petitioner; and (3) whether or not the penalty and civil indemnity imposed are [9] correct. Petitioner admitted killing the victim Jose Escareal. He, however, interposes the justifying circumstance of self-defense or defense of a stranger. The elements of self-defense are the following: (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means employed to the victim; and, (c) lack of sufficient provocation on the part of the person defending [10] himself, which must be proved by clear and convincing evidence. In such case, the burden of evidence shifted to the accused to prove the elements of self-defense by clear and preponderant evidence, otherwise [12] conviction would follow from his admission that he killed the victim. It is not disputed that in the evening of July 8, 1990, after the bottlehurling incident inside the disco house, Joel Escareal went outside. It was there that accused Wilfredo Pollentes met Joel Escareal and confronted the latter about the incident inside and boxed him causing Joel Escareal to fall to the ground face up. When accused Pollentes was poised to strike Joel Escareal again, the latter drew his gun and shot accused Pollentes, who, upon being hit, retreated towards the direction of the street. Joel Escareal was by then standing with his back to the door of the disco house when petitioner came out and, from behind, placed his arm around Joel and hurled him to the ground causing him to fall on his back. The revolver he was holding was also thrown to the ground and landed near his foot. Petitioner Doroteo Tobes picked up the gun and shot Joel Escareal on the left
[11]

The facts, as found by the trial court and upheld on appeal by the Court of Appeals, are as follows: That at about 8:00 oclock in the evening of July 8, 1990, the victim Joel Escareal alias Willy was walking towards the door of AM Disco house situated at the corner of Escareal and Duran Sts. in Bobon, Northern Samar; he was fixing up the zipper of his trousers as he was proceeding on his way. Accuse Wilfredo Pollentes alias Pido who came out of the door of the AM Disco house met Escareal and confronted the latter why he threw bottles to the former. Pollentes was holding the shoulder of Escareal and after uttering the statement to confront, boxed the latter on his chin. Joel Escareal fell down, face up, and as he was about to rise, Wilfredo Pollentes poised to box again the said Escareal. At this juncture, Joel Escareal drew his Cal. 38 revolver from his waistline and shot Pollentes who was thereby hit on his body. The Pollentes walked to the street, while Joel Escareal just stood near the door of the AM Disco house, looking to Pollentes as the latter was moving away; Escareals back was then towards the door of the AM Disco and he was still holding by his right hand the revolver which he used in shooting Pollentes. At this moment, accused Doroteo Tobes went out of the door of the Disco house, and as he was behind, place his arm around the neck of Escareal and hurled him (Escareal) who thereby fell on his back on the ground; the revolver of Escareal was likewise thrown to the ground near his foot when Tobes hurled him down. As Escareal lay face up, Tobes then picked the firearm and shot Escareal on his left temporal area as his head was slightly tilted to its right side. After he fired at Escareal, Tobes then fired another shot to the air. The gun of Escareal that was used by accused Tobes, was Cal. 38 revolver, with Serial No. 434872 which accused Tobes gave to policeman Eleuterio Celespara in the presence of a certain Ben Esquillo, a retired policeman. At the place where the victim was shot by the accused Tobes, were two electric bulbs one placed outside the AM Disco house and another at the NORSAMELCO post. When the shooting incident herein complained of took

temporal area as his head was slightly tilted to the right. Petitioner Tobes then fired a second shot into the air. The foregoing facts show that the plea of self-defense or defense of a stranger would not lie. When petitioner attacked the victim, the aggression by the victim against accused Pollentes no longer existed. Joel Escareal was standing with his back to the door without doing anything but watching accused Pollentes walk away. A person defending a relative or stranger must find out who the aggressor was before undertaking the [13] defense. Thus, when petitioner attacked Joel Escareal, petitioner was not defending himself. In fact, it was petitioner who was the aggressor. In the absence of unlawful aggression on the part of Joel Escareal, [14] there can be no self-defense, complete or incomplete. Petitioner submits that the mitigating circumstances of sufficient provocation or threat on the part of the deceased or passion or obfuscation may be appreciated in his favor. As a fact, there was no threat or provocation directed at petitioner, then [15] he could not have been provoked into passion or obfuscation. On the other hand, the trial court appreciated the mitigating circumstance of voluntary surrender in petitioners favor. The increase in civil indemnity from P12,000.00 to P50,000.00 is [16] consistent with current jurisprudence. WHEREFORE, the Court denies the petition and affirms the [17] decision sought to be reviewed, with costs. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, and Ynares-Santiago, JJ., concur. Kapunan, J., on official leave.

SECOND DIVISION

who conducted an investigation. It turned out that Emmanuel Caon, Jr. was not the culprit. The barangay captain considered the matter closed. The appellant, however, was bent on confronting Emmanuel Caon, Jr. On November 5, 1993, at about 9:00 p.m., 50-year-old Emmanuel Caon, Sr., a pedicab driver called it a day and decided to go home after a days work. He drove his pedicab and stopped at the junction of Rizal and Gallardo Streets, at the poblacion of Tuburan. The appellant, who was conversing with Marcial Lucio saw him. Noy, why is [it] your son did something to my brother? Emmanuel ignored the appellant. The appellant was incensed and ran after Emmanuel. He overtook Emmanuel, grabbed and pushed the pedicab which nearly fell into a canal. Emmanuel again ignored the appellant and pedaled on until he reached his house. His wife, Norberta Caon was in the balcony of their house, above the porch waiting for him to arrive. Emmanuel, Jr., meanwhile, was already asleep. Undeterred, the appellant continued following Emmanuel. Shortly after Emmanuel had entered his house, the appellant arrived and tarried at the porch. Emmanuel suddenly opened the door and demanded to know why he was being followed. The appellant told Emmanuel that he just wanted to talk to Emmanuel, Jr., but Emmanuel told the appellant that his son was already asleep. Norberta went down from the balcony and placed her hand on her husbands shoulder to pacify him. The appellant forthwith pulled out a handgun from under his T-shirt and shot Emmanuel on the forehead. The latter fell to the floor as the appellant walked away from the scene. Norberta shouted for help. The neighbors, her daughter, and her son-in-law arrived. They brought Emmanuel to the Tuburan District Hospital, but the victim died shortly thereafter. Dr. Ivar G. Arellano, the Municipal Health Officer, performed an autopsy on the cadaver of Emmanuel and prepared a report thereon with the following findings: Examination in Detail: On detailed examination, a gunshot wound was found at the left side of the forehead, measuring 1 cm. in diameter. At the skin surrounding this wound was found powder burns which measured 3 cms. in diameter as the skin had been blackened and burned by powder of the bullet. The underlying frontal bone was fractured and depressed. The underlying meninges of the brain as well as the frontal area of the brain was traumatized and injured. Blood and cerebrospinal fluid were leaking from this wound. The edges of this bullet wound was inverted thus this was the gunshot entry wound. The wound was found to be circular in shape. The exit wound was found at the

[G.R. No. 124058. December 10, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. JESUS G. RETUBADO alias JESSIE, appellant. DECISION CALLEJO, SR., J.: This is an appeal from the Decision of the Regional Trial Court, Toledo City, Branch 29, in Criminal Case No. TCS-2153 convicting the appellant Jesus G. Retubado of murder, sentencing him to reclusion perpetua, and directing him to indemnify the heirs of the victim Emmanuel Caon the sum of P50,000.00. The appellant was indicted for murder in an Information, the accusatory portion of which reads: That on the 5 day of November, 1993 at 9:30 oclock in the evening, more or less, at Barangay I Poblacion, Municipality of Tuburan, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with deliberate intent to kill, by means of treachery, evident premeditation and taking advantage of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and shoot Emmanuel Caon with the use of unlicensed revolver of unknown caliber, thereby hitting the latter on his forehead, resulting to the instantaneous death of the said victim. CONTRARY TO LAW.
[2] th [1]

Shortly before November 5, 1993, someone played a joke on Edwin Retubado, the appellants younger brother who was mentally ill. Someone inserted a lighted firecracker in a cigarette pack and gave it to Edwin. He brought the cigarette home and placed it on the dining table as he was having dinner with his father. Momentarily, the firecracker exploded. The suspect was Emmanuel Caon, Jr., The Caons and the appellant were neighbors. The matter was brought to the attention of the barangay captain

left parietal bone measuring 1.2 cm. in size or diameter for this wound communicated with the entry wound of the left side of the forehead. The connection from the wound of entry to the exit wound measured 8 cms. The parietal bone was fractured and was depressed and the parietal part of the brain and meninges was traumatized. Blood and cerebrospinal fluid as well as brain tissues leaked out from this wound. Possible cause of death: 1. Gunshot wound at the head (left side) with injury to brain and meninges 2. Hypovolemic shock secondary to loss of blood (Severe loss of blood) (Sgd.) Ivar G. Arellano [3] MUN. Health Officer Dr. Charity Patalinghug and the victims daughter Loreta C. Claro [4] signed Emmanuels Certificate of Death. The appellant surrendered to the police authorities but failed to surrender the firearm he used to kill the victim. Forensic Officer Myrna P. Areola of the PNP Regional Office subjected the appellant to paraffin tests. The Chemical Analysis of the paraffin casts gave the following results: FINDINGS: ... 1. POSITIVE for the presence of gunpowder residue on his left hand cast. NEGATIVE for the presence of gunpowder residue on his [5] right hand cast.

The appellant admitted shooting the victim but claimed that he was merely performing a lawful act with due care; hence, cannot be held criminally liable for the victims death. He testified that when he insisted that Emmanuel wake up his son, Emmanuel went to his room and emerged therefrom holding a handgun with his right hand. Emmanuels trigger finger was outside the trigger guard, and he held the firearm with the muzzle facing downward. Fearing that he would be shot, the appellant took hold of Emmanuels right hand with his left, and pulled the gun towards Emmanuels stomach. The appellant grabbed Emmanuels free hand with his right hand, and the old man almost fell on his knees to the ground. Emmanuel still resisted. The appellant pulled the gun to the level of Emmanuels forehead, and the gun suddenly went off. The bullet hit Emmanuels forehead. Norberta fled from the house. For his part, the appellant rushed to his house to change clothes. He placed the gun on the dining table before entering his bedroom. When he went back to the dining room to get the gun, his younger sister, Enrica told him that their brother Edwin had taken the gun. He found Edwin outside their house near the church, and the latter told the appellant that he threw the gun into the sea. When the appellant asked his brother to show him where he threw the gun, Edwin refused to do so. Marcial Lucio corroborated the appellants testimony. He testified that he was talking with the appellant at around 9:00 p.m. at the junction of Rizal and Gallardo streets when the victim Emmanuel passed by in his pedicab. When the appellant called the victim, the latter ignored the call, prompting the appellant to chase the victim, and eventually push the pedicab into a canal. The appellants father, Iigo Retubado, testified that on the evening of November 5, 1993, he was in their house with Edwin, his son who was mentally-ill. It was already late when the appellant arrived. The appellant was disheveled, and laid down the gun he was carrying on the table. The appellant told his father that he would surrender to the police because he [6] had shot somebody. The appellant thereafter went to his room to change clothes while Iigo went to the comfort room to answer the call of nature. When he was done, he saw the appellant frantically looking for the gun. As Edwin was also nowhere to be found, Iigo concluded that Edwin might have taken the gun with him. He also testified on Edwins mental imbalance and on the latters confinement at the Psychiatric Department of the Don Vicente Sotto Memorial Medical Center in Cebu City sometime in [7] 1991. On November 6, 1993, the appellant surrendered to the police authorities. Although he was required by the municipal trial court to file his counter-affidavit, the appellant refused to do so.

2.

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

The Case for the Appellant

After due proceedings, the trial court rendered judgment in Criminal Case No. TCS-2153, convicting the appellant of murder, and sentencing him to reclusion perpetua. Thedecretal portion of the decision reads: WHEREFORE, in view of the foregoing, this Court finds accused GUILTY beyond reasonable doubt of the crime of Murder under Art. 248 R.P.C. and sentences the accused to the penalty of Reclusion Perpetua and to indemnify the heirs of the deceased the sum of P50,000.00. However, accused is given full credit of his preventive imprisonment. SO ORDERED.
[8]

THE LOWER COURT ERRED IN CONCLUDING THAT THE TESTIMONY OF THE SOLE WITNESS OF THE PROSECUTION IS SATISFACTORY AND SUFFICIENT TO CONVICT THE ACCUSED OF MURDER. IV Fourth Assignment of Error THE LOWER COURT ERRED IN FAILING TO CONSIDER THAT THE ACCUSED HAS EXPLAINED WHY HE FAILED TO SURRENDER THE [9] GUN WHICH HE GOT FROM THE DECEASED. The appellant asserts that he was merely performing a lawful act of defending himself when he grabbed the victims hand which held the gun. The gun accidentally fired and the bullet hit the victims forehead. The accident was not the appellants fault. The appellant asserts that when he wrestled with the victim for the possession of the gun, he was merely defending himself. He contends that he had no intention of killing the victim, as he merely wanted to talk to his son. If he had wanted to kill the victim, he could have easily done so when he met the latter for the first time that fateful night of November 5, 1993. Moreover, the appellant submits, he did not commit any felony; hence, under paragraph 4 of Article 12 of the Revised [10] Penal Code, he is not criminally liable for the death of the victim. In the alternative, the appellant asserts that he should be convicted only of the crime of homicide under Article 249 of the Revised Penal Code, since the qualifying circumstance of treachery is wanting. He and the victim had a heated exchange of words before they grappled for the possession of the gun. Such heated discussion had already forewarned the victim and placed him on guard; thus, treachery cannot be legally considered. The contention of the appellant has no merit. Article 11, paragraph 4 of the Revised Penal Code reads: ART. 11. Justifying circumstances. ... 4) Any person who, in order to avoid an evil or injury, does an act which causes damage to another provided that the following requisites are present: First. That the evil sought to be avoided actually exists;

On appeal, the appellant assails the decision of the trial court contending that: I First Assignment of Error THE LOWER COURT ERRED IN NOT FINDING THE DEATH OF THE DECEASED AS CAUSED BY MERE ACCIDENT WITHOUT FAULT OR INTENTION OF CAUSING IT WHILE THE ACCUSED WAS PERFORMING A LAWFUL ACT WITH DUE CARE OR, IN THE ALTERNATIVE, IT ERRED IN NOT CONVICTING HIM JUST MERELY OF HOMICIDE INSTEAD OF MURDER. II Second Assignment of Error THE LOWER COURT ERRED IN DISREGARDING THE VERY RELEVANT AND MATERIAL CONTENTS OF EXHIBIT B OF THE PROSECUTION --CHEMISTRY REPORT, PARAFFIN TEST -- WHICH ARE FAVORABLE TO THE ACCUSED. III Third Assignment of Error

Second. That the injury feared be greater than that done to avoid it; Third. That there be no other practical and less harmful means of preventing it. The provision was taken from Article 8, paragraph 7 of the Spanish Penal Code, which reads: ARTICULO 8. 7. El que para evitar un mal ejecuta un hecho que produzca da en la propiedad ajena, siempre que concurran las circumstancias siguientes: Primera. Realidad del mal que se trata de evitar. Segunda. Quesea mayor que el causado para evitarlo. Tercera. Que no haya otro medio practicable y menos perjudicial para impedirlo. Article 11, paragraph 4 of the Revised Penal Code is not an accurate translation of the Spanish Penal Code. The phrase an injury does not appear in the first paragraph in the Spanish Penal Code. Neither does the word injury appear in the second subparagraph of the Spanish Penal Code. The justification is what is referred to in the Spanish Penal Code as el estado de necessidad: Es una situacion de peligro, actual o immediato para bienes, juridicamente protegides que solo puede ser evitada mediante, la lesion de bienes, [11] tambien juridicamento protegidos, pertenecientes a otra personas . The phrase state of necessity is of German origin. Countries which have embraced the classical theory of criminal law, like Italy, do not use the phrase. The justification refers to a situation of grave peril (un mal), actual or imminent (actual o imminente). The word propiedad covers diverse juridical rights (bienes juridicos) such as right to life, honor, the integrity of ones body, and property (la vida, la integridad corporal, el pudor, el honor, [12] bienes patrimoniales) belonging to another. It is indispensable that the state of necessity must not be brought about [13] by the intentional provocation of the party invoking the same.

A number of legal scholars in Europe are of the view that the act of the accused in a state of necessity is justifying circumstance; hence, lawful. Under Article 12, paragraph 4 of the Revised Penal Code, a state of necessity is a justifying circumstance. The accused does not commit a crime in legal contemplation; hence, is not criminally and civilly liable. Civil liability is borne by the person/persons benefited by the act of the accused. Crimes cannot exist unless the will concurs with the act, and when, says Blackstone, a man intending to do a lawful act, does that which is unlawful, the deed and the will act separately and there is no conjunction [14] between them which is necessary to constitute a crime. Others are of the view that such act is a cause for exclusion from being meted a penalty; still others view such act as a case of excluding the accused from culpability. According to Groizard, rights may be prejudiced by three general classes of acts, namely, (a) malicious and intentional acts; (b) negligent or reckless acts; (c) acts which are neither malicious, imprudent nor negligent but nevertheless cause damages. Nuestra propiedad puede ser perjudicada, puede sufrir detrimentos por tres clases de hechos. Por actos maliciosos, intencionales, encaminados directamente a causarnos dao; por actos que, sin llevar ese malicioso fin y por falta de prudencia, por culpa o temeridad del que los ejecuta, den ese mismo resultado, y por actos que, sin concurrir en su ejecucion un proposito doloso, ni culpa, ni negligencia sin embargo produzcan menocabo en [15] nuestros bienes. The defense of a state of necessity is a justifying circumstance under Article 12, paragraph 4 of the Revised Penal Code. It is an affirmative defense that must be proved by the accused with clear and convincing evidence. By admitting causing the injuries and killing the victim, the accused must rely on the strength of his own evidence and not on the weakness of the evidence of the prosecution because if such evidence is weak but the accused fails to prove his defense, the evidence of the prosecution can no longer be disbelieved. Whether the accused acted under a state of necessity is a question of fact, which is addressed to the sound discretion of the trial court. The legal aphorism is that the findings of facts by the trial court, its calibration of the testimony of the witnesses of the parties and of the probative weight thereof as well as its conclusions based on its own findings are accorded by the appellate court high respect, if not conclusive effect, unless the trial court ignored, misconstrued or misapplied cogent facts and circumstances of substance which, if considered, will change the outcome of the case. We have meticulously reviewed the records and find no basis to deviate from the findings of the trial court that the appellant was the provocateur, the unlawful aggressor and the author of

a deliberate and malicious act of shooting the victim at close range on the forehead. First: When Norberta heard her husband and the appellant arguing with each other in the porch of their house, she went down from the balcony towards her husband and placed her hand on the latters shoulders. She was shocked when the appellant pulled out his handgun and deliberately shot the victim on the forehead, thus: Q Now, you said that when your husband was about to go out again in order to see his trisicad and as he opened the door he saw Jesus Retubado near the door. What happened after that? He asked Jesus Retubado why Jesus Retubado chased him when he was driving his trisicad. Now, as your husband was asking this question to the accused Jesus Retubado what was the distance to your husband at the time? Just very near to him. And you to the accused at that very moment what was more or less your distance? About an armslength. When your husband asked Jesus Retubado why the latter chased him while your husband was driving his trisicad what was the answer of Jesus Retubado, if any? My husband asked the accused Jesus Retubado what is his grudge to him and Jesus Retubado answered that it is not you who has a grudge to me but it is your son. When Jesus Retubado uttered that statement what transpired after that? He immediately pointed his firearm that he was bringing (sic) to my husband Emmanuel Caon. By the way considering that you were just near to both your husband and the accused where did that firearm that you said was pointed by the accused to your husband come (sic) from? While the accused was standing in front of our door his hands were placed inside his T-shirt covered by his T-shirt.

Atty. Pepito: We move to strike out the answer. It is not responsive, Your Honor. The question was, where did it come from? COURT: Let the answer stay in the record but let the witness answer again. A From the hands of accused Jessie.

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

A Q

Atty. Pepito: Already answered. It came from the hands of the accused. Fiscal Pansoy: I will reform. Q Before you saw the firearm in the hands of the accused where did the firearm come from?

A Q A Q

Atty. Pepito: She is incompetent. We object. COURT: Reform the question. Fiscal Pansoy: Q Now, Mrs. Witness, before this question was asked to you as to where the firearm came from you were making a motion by placing your hands inside your shirt when you were only asked as to where the firearm came from? That was what the position of the accused when he was standing in front of our door and I do not know what was inside his T-shirt. I only know that he was carrying a firearm when it fired.

Q A Q

Now, when the accused pointed the firearm to your husband and fired the same more or less what was the distance between the accused and your husband at the very precise time when the firing was made? It was just very near because his hand did not bend. (Witness demonstrating by pointing to her forehead). Now, more or less, describe to the Court the approximate distance between the firearm that was pointed to your husband and the forehead of your husband at the time when the firing was done? It touched the forehead of my husband. That was the very time that you heard the gunburst? Yes. When the accused fired the firearm that was carried by him, what happened to your husband? My husband fell down backward to the ground inside the house. By the way, what was the flooring of your house where your husband fell backward to the ground? Cemented. By the way considering that you were just very near to where the incident occurred can you describe the length of the firearm that was used by the accused in firing your husband? It was a short firearm about 6 inches. Now, as your husband fell down to the floor where did the accused proceed and what did the accused do? He was just casually walking away as if nothing had happened. Now, what did you do to your husband, if any, after he fell down to the floor? I have done nothing because I was somewhat shocked. I [16] could not move because I was shocked.

A Q

Second: After shooting the victim, the appellant fled from the situs criminis. He surrendered to the police authorities only on November 6, 1993, but failed to surrender the gun he used to kill the victim. The appellants claim that he placed the gun on the dining table before entering his bedroom to change his clothes is incredible. There is no evidence that the appellant informed the police authorities that he killed the victim in a state of necessity and that his brother, Edwin, threw the gun into the sea. The appellant never presented the police officer to whom he confessed that he killed the victim in a state of necessity. Third: The appellant had the motive to shoot and kill the victim. The victim ignored the appellant as the latter talked to him at the junction of Rizal and Gallardo streets, in the poblacion of Tuburan. The appellant was incensed at the effrontery of the victim, a mere pedicab driver. The appellant followed the victim to his house where the appellant again confronted him. The appellant insisted on talking with the victims son but the victim refused to wake up the latter. The appellant, exasperated at the victims intransigence, pulled out a gun from under his shirt and shot the victim on the forehead. It was impossible for the victim to survive. With the appellants admission that he shot the victim, the matter on whether he used his right or left hand to shoot the latter is inconsequential. We agree with the contention of the Solicitor General that there is no treachery in the present case to qualify the crime to murder. To appreciate treachery, two (2) conditions must be present, namely, (a) the employment of the means of execution that give the person attacked no opportunity to defend himself or to retaliate, and (b) the means of execution were [17] deliberately or consciously adopted. The prosecution failed to adduce an iota of evidence to support the confluence of the abovementioned conditions. Thus, the appellant is guilty only of homicide under Article 249 of the Revised Penal Code. Although the Information alleges that the appellant used an unlicensed firearm to shoot the victim, the prosecution failed to prove that the appellant had no license to possess the same. Hence, the aggravating circumstance of the use of an unlicensed firearm to commit homicide should not be appreciated against the appellant. The appellant is entitled to the mitigating circumstance of voluntary surrender. He turned himself in to the police authorities prior to the issuance of any warrant for his arrest. The trial court awarded P50,000.00 as civil indemnity to the heirs of the deceased. In addition, the heirs are entitled to moral damages in the [19] amount of P50,000.00 and the temperate damages in the amount [20] of P25,000.00 since no sufficient proof of actual damages was offered.
[18]

A Q A Q A Q A Q

A Q A Q A

WHEREFORE, the appealed judgment is AFFIRMED with MODIFICATION. The appellant Jesus G. Retubado alias Jessie is found GUILTY beyond reasonable doubt of homicide defined in and penalized by Article 249 of the Revised Penal Code and is hereby sentenced to suffer an indeterminate sentence of ten (10) years of prision mayor, in its medium period, as minimum, to fifteen (15) years of reclusion temporal, in its medium period, as maximum, and to pay the heirs of the victim, Emmanuel Caon, P50,000.00 as civil indemnity; P50,000.00 as moral damages; and P25,000.00 as temperate damages. SO ORDERED. Puno, JJ., concur. (Chairman), Quisumbing, Austria-Martinez, and Tinga,

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

damage and prejudice of the heirs of said victim, in such amount as may be awarded to them under the provision of the Civil Code of the Philippines. CONTRARY TO LAW.
1

In Criminal Case No. 16675: G.R. Nos. 119660-61 February 13, 2009 That on or about the 28th day of December, 1989 in the Municipality of Paraaque, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who were then public officers, being then members of the Paraaque Police Force, armed with guns, conspiring and confederating and mutually helping and aiding one another, with intent to kill and with treachery and by taking advantage of their public positions as members of the Paraaque Police Force, did then and there willfully, unlawfully and feloniously shoot one GEORGE GO Y TAN on the different parts of his body, thereby inflicting serious and mortal wounds upon said victim, which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of said victim, in such amount as may be awarded to them under the provision of the Civil Code of the Philippines. CONTRARY TO LAW.
2

PAT. EDGARDO HERRERA y BALTORIBIO and PAT. REDENTOR MARIANO y ANTONIO, Petitioners, vs. HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents. DECISION AZCUNA, J.: Petitioners Pat. Edgardo Herrera y Baltoribio and Pat. Redentor Mariano y Antonio, together with the other accused, Pat. Roberto Barrera and Pat. Rodolfo Alcalde, all members of the Paraaque Police Station, were charged with two (2) counts of murder, FOR THER KILLING OF Shi Shu Yang and George Go y Tan, before public respondent Sandiganbayan in Criminal Case Nos. 16674 and 16675. The original informations, both dated December 4, 1990, against the petitioners and two other accused alleged: In Criminal Case No. 16674: That on or about the 28th day of December, 1989 in the Municipality of [Paraaque], Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused who were then public officers, being then members of the Paraaque Police Force, and armed with guns, and conspiring and confederating and mutually helping and aiding one another, with intent to kill and with treachery and by taking advantage of their public positions as members of the Paraaque Police Force, then and there willfully, unlawfully and feloniously shoot one SHI SHU YANG on the different parts of his body, thereby inflicting serious and mortal wounds upon said victim, which were the direct and immediate cause of his death, to the

On March 18, 1992, petitioners and the other accused were arraigned but they pleaded not guilty. Petitioners then filed a joint petition for bail raising the issue of lack of jurisdiction on the ground that the prosecution failed to allege in the informations that the crimes were committed by the petitioners 3 "in relation to their office" citing the case of Bartolome v. People. On March 18, 1992, public respondent Sandiganbayan ordered the amendment of the informations and stated that the evidence adduced during the pre-trial of the case and the hearing on the petition for bail shall be deemed automatically reproduced as evidence during the trial of the case on the merits. The amended informations, both dated July 15, 1992, against the petitioners and the two accused alleged: In Criminal Case No. 16674: That on or about the 28th day of December, 1989 in the Municipality of Paraaque, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who were then public officers being then members of the Paraaque Police Force and armed with guns, and conspiring and confederating and mutually helping and aiding one

another, committing the offense in relation to their public position or office, with intent to kill and with treachery and by taking advantage of their public positions as members of the Paraaque Police Force, then and there willfully, unlawfully and feloniously shoot one SHI SHU YANG on the different parts of his body, thereby inflicting serious and mortal wounds upon said victim, which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of said victim, in such amount as may be awarded to them under the provision of the Civil Code of the Philippines. CONTRARY TO LAW.
4

In Criminal Case No. 16675: That on or about the 28th day of December, 1989 in the Municipality of Paraaque, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who were then public officers being then members of the Paraaque Police Force and armed with guns, and conspiring and confederating and mutually helping and aiding one another, committing the offense in relation to their public position or office, with intent to kill and with treachery and by taking advantage of their public positions as members of the Paraaque Police Force, then and there willfully, unlawfully and feloniously shoot one GEORGE GO Y TAN on the different parts of his body, thereby inflicting serious and mortal wounds upon said victim, which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of said victim, in such amount as may be awarded to them under the provision of the Civil Code of the Philippines. CONTRARY TO LAW.
5

Arraigned anew on September 18, 1992, petitioners Herrera and Mariano 6 entered their pleas of not guilty and withdrew their objections to the issue of lack of jurisdiction of public respondent Sandiganbayan over the case and moved that the proceedings and evidence presented during their petition for 7 bail be adopted in toto. The two other accused, Barrera and Alcalde, remained at large. During the pre-trial on March 30, 1993, the parties stipulated that during the commission of the crimes, the petitioners were public officers. Whereupon, the cases were consolidated and a joint trial on the merits ensued. The prosecutions evidence consisted of the following:

Reynaldo Ong was the manager of Chow Chow Restaurant which was owned by Spouses George Go, one of the victims, and Edna Ong Go, located at 5 Country Homes Commercial Center, Dr. A. Santos Avenue, Paraaque, Metro Manila. Ong was the younger brother of Edna Go. At about 4:00 am of December 28, 1989, Ong heard two explosions. He proceeded to the third floor of the restaurant to check on what had happened and as he looked down, he saw accused Pat. Roberto Barrera and his friend lighting firecrackers at the back of restaurant. Ong descended the stairs toward the ground floor of the restaurant where he saw the victims George Go and Shi Shu Yang. George Go asked for some firecrackers from him and proceeded to the kitchen to light the firecrackers. From a distance outside the restaurant, accused Barrera shouted, "Pare, meron pa ba?" (asking if there are still firecrackers) to which George Go responded, " Marami pa." ("There are still plenty.") After George Go responded in the affirmative, accused Barrera went to the restaurant armed with a .38 caliber pistol tucked in his waist. George Go then went upstairs, took his .45 caliber pistol from an attache case, tucked it in his waist, and went back to the kitchen. Moments later, accused Barrera approached George Go, introduced himself as a Paraaque policeman, and disarmed him (George Go) of his licensed .45 caliber pistol. Barrera then shouted at his (Barreras) companion, a policeman, who was upstairs, "Ilabas mo iyong mahaba" (ordering the companion to bring out the long firearm) while commanding George Go to come out as he had went to the parking lot to hide there. Ong pleaded with Barrera and told him that George Go would surface only if Barrera would not shoot him. As soon as George Go emerged from the parking lot, Barrera said, "Tarantado kang Chekwa ka, ako yung nagbigay sa iyo ng sobre " (uttering invective upon the victim with the use of the pejorative term for Chinese as he referred to his Christmas solicitation from the victim who gave him twenty pesos (P20) and two t-shirts). George Go was quiet. Barrera also demanded that George Go present the license of his firearm which the latter readily showed. Barrera then told George Go that he would bring the firearm to the police station for verification. He then called the police station 8 informing them that he had just disarmed George Go. At about 6:00 a.m. of that same day, George Go and his Taiwanese friend, the victim Shi Shu Yang, were brought to the Paraaque Police Station. Reynaldo Ong proceeded, but went back to the house to inform Edna Go, wife of George Go, to go to the police station. When she arrived at the police station, Edna Go saw her husband, who was making a telephone call, and Shi Shu Yang. She heard Barrera demanding George Go to produce his license to carry a firearm. Barrera also told George Go to undergo medical examination, but the latter refused. Thus, Barrera, together with the petitioners and accused Alcalde, shoved George Go to the wall and made him and Shi Shu Yang ride a police car waiting nearby. They took the victims

to the Paraaque Community Hospital for medical examination. Thereafter, the two were brought to Timothy Street along Multinational Village where 9 they were shot to death. Edna Go also testified that George Go was an agent of Stanley Work Sales and operator of Chow Chow Restaurant. She said she had spent for the wake and funeral of her husband and, estimated the expenses for the wake to be at around P10,000 as she was not able to keep the receipts. However, she presented the receipt issued by La Funeraria Paz amounting to P11,500 as expenses for the casket and funeral services. She stated that she was in a state of shock and became frightened upon learning of the death of her 10 husband. Cristina Winterhalter y Siscar, a resident of nearby Saint Anthony Street, witnessed the killing of the two victims with the use of a pair of binoculars lent to her by a neighbor, as she viewed it from a distance of about 80 to 90 meters. She testified that at around 11:00 a.m. of December 28, 1989, she was standing by the window, waiting for her daughter and an Italian neighbor to come home, when she noticed a Ford Fiera patrol van, with "Paraaque Police Mobile" appearing on both sides, parked along Timothy Street. From a distance of between 80 to 90 meters, she saw seven persons inside the van, two seated in front while five stayed at the back. When the van was parked, she saw two men alight from the backseat, one was in civilian clothes (referring to Pat. Alcalde) and one in police uniform and carrying a rifle (referring to Pat. Barrera). They were followed by George Go and an unidentified man in black shirt. They took out Shi Shu Yang who was seated at the back. The one seated at the passenger side was petitioner Herrera while petitioner Mariano was the one driving the van. Petitioner Mariano went to the front area of the van and wrote something on a piece of paper. Pat Barrera hit George Go on the face and, together with petitioner Mariano, they fired about 20 successive shots at the victim. They also kicked Shi Shu Yang and fired about four times. Petitioner Herrera also fired at the victims lying on the pavement. They placed the bodies of the victims inside the van and headed for Fortunate Village. Winterhalter and a neighbor went to the crime scene and found bloodstains on the pavement, a set of dentures, and a pair of eyeglasses. Later, she executed a sworn statement before the NBI to narrate what she witnessed. A diagram (Exhibits "L" and "L-1") was made to give a clearer picture of the location of her house and that of the crime 11 scene. Dr. Roberto Garcia, Medico Legal Officer of the National Bureau of Investigation (NBI), conducted an autopsy on the body of George Go at around 5:30 p.m. of December 28, 1989 at the Rizal Funeral Homes, Pasay City. The Autopsy Report No. 89-4195 (Exhibit "A") showed that George Go

sustained eight (8) fatal gunshot wounds on his jaw, chest, abdomen, and arms, as follows: gunshot wound no. 1 had entry point (4 by 61/2 centimeters) on the right jaw with exit point (1.8 by 1.5 centimeters) on the left forehead; gunshot wound no. 2 had entry point (0.6 by 1 centimeters) on the upper left chest right with exit point (1.8 by 1.5 centimeters in diameter) on the upper left back; gunshot wound no. 3 had entry point (0.6 by 0.8 centimeters) below the left collar bone with exit point (3.2 by 2.8 centimeters) on the upper right back; gunshot wound no. 4 had entry point (0.5 by 0.7 centimeters) on the upper right chest with exit point (4 by 2.8 centimeters) on upper right back; gunshot wound no. 5 had entry point (0.7 by 1.3 centimeters) on the upper right abdomen with exit point (1.5 by 1.3 centimeters) on the upper right back; gunshot wound no. 6 had entry point (0.5 by 0.8 centimeters) on the abdomen area which was just above the navel with exit point (2.6 by 1.9 centimeters in diameter) on the lower right back; gunshot wound no. 7 had entry point (0.6 by 0.8 centimeters) on the lower left abdomen with exit point on the lower right (2.6 by 1.9 centimeters) on the lower right back; and gunshot wound no. 8 had entry point (0.5 by 0.7 centimeters) on the left arm with exit point (1.8 by 1.6 centimeters) on the left arm. He estimated that the probable distance from the muzzle of the gun to the victim was about an armslength of 24 inches. He prepared a diagram (Exhibit "B") indicating the different gunshot wounds sustained by the victim and issued a Certificate of Post-Mortem Examination (Exhibit "C"). With the trajectory of the bullet, he said that it was possible that after the first shot was fired, the victim assumed a kneeling position or was lying on the pavement as the assailant continued to fire the successive shots. The body of the victim was later identified by Edna Go, wife of George Go. At around 7:00 p.m., Dr. Garcia also conducted an autopsy on the body of Shi Shu Yang in the said funeral parlor. The Autopsy Report No. 89-4196 (Exhibit "D") indicated that Shi Shu Yang sustained three gunshot wounds. He made a diagram (Exhibit "E") identifying the locations of the gunshot wounds and, likewise, issued a Certificate of Post-Mortem Examination (Exhibit "F"). Illustrating a distance of about 24 inches, the entry point of gunshot wound no. 1 was at the back of the head of the victim with no exit point as the deformed bullet was lodged therein. `The entry point of gunshot wound no. 2 was on the left side of the neck of the victim (0.6 by 0.8 centimeters) and exit point on the right side of the neck (1.2 by 1 centimeter in cross diameter). He concluded that the assailant must have been at the left of the victim when the shot was fired. As for gunshot wound no. 3, the distance between the muzzle of the gun and the right arm could have been more than 24 inches and that the assailant was at the oblique front right of 12 the victim.

Edwin Purificando, Senior Forensic Chemist of the NBI, examined the blood type of the victims, as follows, blood type "B" for George Go per Biology Report No. B-89-2490 (Exhibit "M-2") and blood type "A" for Shi Shu Yang per Biology Report No. B-89-2491 (Exhibit "M-1"). He also analyzed the specimen of the blood obtained by the NBI Duty Chemists, Aida Pascual and Bella Arriola, from the pavement located along Timothy Avenue, called "blood scraping" as shown Biology Examination Report No. B-89-2498 (Exhibit "M"), and found that it only yielded blood type "B" which matched with the blood type of George Go. He repeated the blood scraping procedure and no evidence of blood type "A" was found Biology Examination Report 13 No. B-90-15 (Exhibit "N" and "N-1"). Aida Veloria Magsipoc, Supervising Forensic Chemist of the NBI, testified that on December 28, 1989, acting upon the requests for paraffin test (Exhibit "I" and "I-1") by P/Cpl. Glen Tiongson and P/Cpl Jose Suarez, respectively, she conducted the diphenylamine-paraffin tests on the dorsal of the left and right hands of the victims and per Chemistry Report No. C-891605 for George Go (Exhibit "H") and Chemistry Report No. C-89-1606 for Shi Shu Yang (Exhibit "H-1"), they were found negative of nitrates which 14 proved that the victims never fired a gun. Teodoro Ubia y Janeo, a Medical Technologist of the NBI, took pictures of the cadaver of George Go (Exhibits "K to K-4") and an unidentified person, later known to be, Shi Shu Yang (Exhibits "J to J-2") to show the different 15 locations where the victims were shot. Atty. Leoncio Evangelista, an agent of the NBI, conducted investigation on the killing incident. On the other hand, the evidence for the defense, are as follows: Rodolfo Ver y Foronda, Fingerprint Examiner II of the NBI, presented the following documents relative to the shooting incident that resulted in the death of the two victims, to wit; Progress Report dated December 28, 1989 (Exhibits "1" and "1-a"); Initial Investigation Report signed by Col. Rogelio Pureza (Exhibit "2"); Request for Paraffin Test dated December 28, 1989 (Exhibit "3"); Sworn Statements of Pat Barrera, petitioner Mariano, Pat. Alcalde, and petitioner Herrera (Exhibits "4," "4-a," "5," "5-a," "6," "6-a," "7," and "7-a"); photocopies of a picture of the Paraaque Police van No. 102 (Exhibits "8," "8-a" to "8-g") and a Certification issued by Capt. Abraham 16 Gatchillano dated January 5, 1990 (Exhibits "9" and "9-a").

Col. Rogelio Pureza y Abutan, PNP District Director of the NPD, CAMANABA testified that he approved the Progress Report dated December 28, 1989 (Exhibits "1" and "1-a") of Rodolfo Ver. The report addressed to the Regional Commander (Exhibit 11) was based on the investigation conducted on petitioners Herrera and Mariano, Pat. Alcalde, Pat. Barrera, and Edwin Maquinay, and the report of the investigator on the case. He narrated that at about noontime of December 28, 1989, Edna Go came to his office requesting Col. Pureza for assistance with regard to her husbands case, but he told her to await for the outcome of the investigation as the cases for Illegal Possession of Firearms and Resisting Arrest were already filed with the Prosecutors Office and it would be inappropriate for him to intercede in the case. While he was talking with Go, SPO4 Ticzon called to inform him about a shooting incident involving the husband of Go. Since he was not sure if George Go was already dead when the call came in, he did not relay the information to Go. Thereafter, he came to know that George Go was brought to the Paraaque Community Hospital by petitioners and accused Barrera and Alcalde, together with one Shi Shu Yang. As a result of the investigation conducted, he and the other police officers filed a case for homicide against two of their policemen based on the evaluation report of their investigator. He turned over the petitioners and the accused to the NBI for investigation. The two (2) reports stated that one of the victims was carrying a caliber 45 firearm and that said firearm was forwarded to the PCCI laboratory for verification and also for the purpose of determining if it was previously involved in a crime and to the Firearms and Explosive Unit for the issuance of a certification as to the veracity of its 17 license. SPO4 Glenn Fuentes Ticson testified that on December 28, 1989, he was assigned as Duty Investigator at the CID, Paraaque Police Station and, as such, was tasked to investigate criminal cases referred to him by their Desk Officer or immediate supervisor. On December 28, 1989, Cpl. Antonio Batola, Duty Officer, reported to him about a shooting incident and that the victims were already brought to the Paraaque Community Hospital. He and Pat. Oscar dela Cruz immediately proceeded to the said hospital and upon arrival, the hospital personnel informed them that the victims were pronounced dead on arrival. The victims were identified through their identification cards. The bodies of the victims sustained multiple gunshot wounds and were bathed in blood. When he was informed that the victims were brought by four (4) policemen, he interviewed two (2) of them (accused Barrera and Alcalde) and they admitted having shot the victims but claimed self-defense. He called up their Station Commander informing him about the shooting incident involving Paraaque policemen. He retrieved the service firearms belonging to the two accused and proceeded to the scene of the crime past noon. The people within the vicinity told him that while they did

not see the actual shooting incident, they heard successive gunshots. The patrol van used by the petitioners and the two accused suspects was left in the hospital and, later brought to the police station. Ticzon declared further that after the incident, he instructed his co-investigator to get the statement of the wife of the victim George Go at the Chow Chow restaurant. Prior to the shooting incident, he was informed that George Go was previously arrested by accused Barrera in connection with a case for Illegal Possession of Firearms. He was familiar with the people in Timothy street to avoid traffic in going to the police headquarters. On the same day of the shooting incident, he requested the NBI to conduct an autopsy on the cadaver of the victims. Thereafter, he prepared two (2) reports which he submitted to Col. Pureza at about 9:00 oclock pm. of December 28, 1989. The pictures o f the police van used in transporting the deceased to the hospital were taken at about 3:00 0clock p.m. at the police station but he had nothing to do with the taking of those pictures. The extent of his investigation with respect to the shooting incident from the beginning to the end and before the case was turned over to the NBI are all included in Exhibit 1. upon arrival at the police headquarters coming from the scene of the crime, he reported to Col. Pureza. Before the turn-over of the case to the NBI, Col. Pureza assigned Pat. De la Cruz and Pat. Octavio to assist him in the investigation of the incident. As head investigator, his duties include any request for autopsy and paraffin tests but he did not recommend that paraffin test be conducted upon the two victims. Before the turn-over of this case to the NBI, he did not gather the firearms involved in this case for ballistic examination. The Cal. 45 firearm recovered from George Go was in the custody of Col. Pureza which was turned over by Pfc. Biong but he does not know if Col. Pureza signed any receipt for said firearm. He only saw the serial no. of said firearm, which was tampered, in the office of Col. Pureza in the afternoon of 18 December 28, 1989. SPO3 Gil Labay y Cantor declared that on January 8, 1990, he was assigned at the Physical Identification Division of the PNP Crime Laboratory at Camp Crame, Quezon City and among his duties was to perform macroetching on firearms and motor vehicles. On January 8, 1990, he examined one (1) Cal. 45 bearing serial no. 198842 (Exhibit "16"). His findings showed that there were signs of filing and grinding on the metal surface where the serial no. is located. His examination was based upon the letter-request of the Station Commander of the Paraaque police station (Exhibit "17"). Said request was received by their duty officer but they did not retain a copy of the receipt that was issued to the requesting party. He does not know if said firearm was first submitted to the PC Crime Laboratory and said firearm was received by one Pat. Bustillo (Exhibit "18-a"). the serial number of the firearm was tampered and he did not see the original serial number of the said firearm. In the course of his examination, he could not determine the

approximate period of time when the allege.d tempering of the firearm was made because of the super-imposition of the number. He did not verify from 19 the Firearms and Explosive Unit whether the firearm was licensed or not. Testifying in his defense, petitioner Redentor Mariano declared that on December 28, 1181, he was connected with the Paraaque Police Station and assigned with the Mobile Patrol Division, with his tour of duty being from 6:00 oclock p.m. to 6:00 oclock a.m. At about 5:30 oclock a.m. in the morning of December 28, 1181, he received a radio message from their radio operator to proceed to the police head quarters to assist accused Barrera in bringing persons for medical examination. Upon arrival at the police headquarters, accused Alcalde and Barrera alighted from the mobile patrol van while he stayed inside the mobile car. At abou t 10:30 oclock a.m. of the same day, accused Alcalde, Barrera, Herrera and himself brought two persons to the Paraaque Community Hospital. In going to the said hospital, they passed through Fortunate Village and Multinational Village and, upon arrival at the hospital, accused Alcalde and Barrera accompanied the two persons. At about 11:00 oclock a.m., on their way back to the Paraaque police station, he heard accused Alcalde saying " George, ano ka ba, bitiwan mo ang baril mo" and not long after, he heard successive shots. When he looked back, he saw George Go grappling for the possession of a firearm with accused Alcalde. He stopped the van and alighted in order to pacify what was happening inside the van but he heard again successive shots and thereafter, he saw the two Chinese nationals fall inside the van bathed with blood. He told his companions to bring the victims to the hospital and later informed their Chief of Police about the incident. Upon arrival at the hospital, he told his companions to request the hospital personnel to get the two dead persons inside the van. After the incident, he was investigated and his 20 statement was taken. On cross-examination, he declared that the reason why the two Chinese nationals were brought to the hospital in the morning of December 28, 1181 for medical examination was because he learned that there was a case filed against George Go. In going to the hospital, he was in front of the van just besides the driver, while accused Alcalde, Barrera, George Go and the latters companion were at the back. He and the driver were both armed with cal. 38 while accused Alcalde was armed with M-16 armalite rifle and accused Barrera was armed with a Cal. 38. While inside the van, George Go was handcuffed while his companion was not. Accused Alcalde and Barrera were seated fronting the two Chinese nationals. The distance from the seat where accused Alcalde and Barrera were seated to the seat where the two victims were seated would be more or less 2 feet but there was a gap between the knees of the passengers seated which was about 12 inches. From the time he heard the first shot up to the time the police van stopped,

they had traveled more or less 5 to 10 meters. He was shocked when he heard the first shot and when he looked back, he saw George Go trying to grab the firearm of the accused Alcalde by holding the butt and almost the muzzle of the firearm. He did not see the finger of accused Alcalde on the trigger guard of his firearm immediately after he heard the series of shots because the incident happened too fast. While at the police headquarters, he asked accused Alcalde and Barrera what happened and they told him that George Go tried to grab the firearm of accused Alcalde but he was not 21 able to ask them who shot George Go. In the morning of December 21, 1181, they were submitted for paraffin tests at the PNP Crime Laboratory and with respect to him, the findings was negative but he does not know what was the result of the findings with respect to accused Barrera and Alcalde. They left the hospital before 1:00 oclock p.m. and it was only a matter of minutes before they reached Multinational village. The investigator did not take photographs at the scene of the incident at that time. in the night of march 3, 1111, Mrs. Edna Go came to see him at Camp Bicutan and asked him why the other policemen did not see her when in fact an agreement that the case be settled before the NAPOLCOM had been reached. Dr. Frederick Singson y Soliven, Resident Physician of the Paraaque Community Hospital testified that on December 28, 1181, he examined George Go and found out that the latter was positive for alcohol breath but no signs of physical injuries. At about 11:45 a.m. of the same day, George Go was brought back to the hospital with six gunshot wounds and was declared dead on arrival (Exhibit 11-a). He also treated accused Herrera on the same day and found out that said patient was negative of alcohol breath and had a linear abrasion which was 1 cm. in size (Exhibit 20-a). He was not the one who prepared the entries in Exhibit 11-a and there was no initial of the person who made the handwritten notations therein. George Go was brought to the hospital by the policemen and one of them was accused Herrera but he did not ask the policemen the purpose why George Go was to be examined. He did not take the blood chemistry of George Go to determine whether alcohol existed in his blood. He admitted that he was not the one who wrote the notations of the dorsal portion of Exhibit 20. The first portion of the medical report of George Go was written by Dr. Bautista and the lower portion was written by him (Exhibit x and y). According to accused Herrera, the abrasion inflicted on his neck was due to an alleged scuffle with 22 somebody but said injury could also be self-inflicted. SPO2 Armand Octavio, a member of the Paraaque police Station testified that on December 28, 1181, he was instructed to take the statement of accused Barrera (Exhibit 21, 21-a and 21-b). He also received an

investigation report from the office of the Investigation Division signed by SPO3 Ticzon and Col. Pureza. Aside from these reports, he was also furnished a certification from the Firearms and Explosive Unit and an investigation report regarding the charge for Illegal Possession of Firearms 23 against accused George Go. Testifying in his defense, petitioner Edgardo Herrera declared that he had been a member of the Paraaque Police Station. On December 28, 1181, he reported at the police headquarters and his tour of duty was from 6:00 oclock p.m. to 6:00 oclock a.m. and his companions were accused Mariano and Alcalde. At about 6:00 oclock a.m. of December 28, 11 81, they received a radio message from their headquarters, directing them to report to the Chief of Police. Upon arrival at the police headquarters, their Desk Officer ordered them to bring a certain George Go to the Paraaque Community Hospital for medical examination. Before George Go was brought to the hospital, he was very unruly at the police headquarters and refused to be brought to the hospital. On their way to the hospital, they took Sucat road and proceeded towards Fortunata Village and then to Multinational Village to avoid traffic jams. After the examination of George Go, they brought him back to the police headquarters but upon reaching Timothy Street in Multinational Village, a shooting incident happened. While he was at the steering wheel, he heard accused Alcalde saying "George, bitiwan mo ang baril ko" and not long after, he heard a gunshot. He looked back and when he saw that the muzzle of an Armalite rifle was almost at his back, he tried to parry it but it went off successive shots. He immediately jumped out of the vehicle and pulled out his firearm and saw the two Chinese nationals already lying on the floor of the police van. He immediately drove the police van and brought the victims back to the Paraaque Community Hospital. After the incident, he was investigated and his statement was taken (Exhibits 7 and 724 a). He was also subjected to paraffin tests and the result was negative. On cross-examination, he declared that he did not see who placed handcuffs on the hands of George Go but when he saw the latter seated at the back of the police van, he was not handcuffed. Before they brought George Go to the hospital, he saw Gos wife who was insisti ng to go with them but George Go did not allow her and, instead, he took along his Taiwanese friend, one Shi Shu Yang. Apart from George Go and Shi Shu Yang, there were four (4) of them who boarded the police van and alighted at the hospital but did not go back with them to the police headquarters. All of them, except Maquinay, were armed. Being the driver of the police van for almost a year, he was familiar with the different roads coming from the police station to the Paraaque Community Hospital. In fact, there are two routes in going to the said hospital, one of which is Dr. Santos Avenue up to Sucat road and other is thru Fortunata Village and then to Multinational Village. There are houses

and business establishments along Dr. Santos Ave. while there are few houses and unfinished structures along Timothy Street in Multinational Village. He was the one who decided to take Multinational Village in going back to the police headquarters to avoid traffic. The road leading to Fortunata Village is not a bumpy road. In fact, he can reach the police station from the hospital if he passes thru Multinational Village without passing thru Timothy Street. He claimed that George Go and Shi Shu Yang were not forced to go down by accused Barrera and Alcalde from the police van when it passed thru Timothy Street. After hearing the gunshots, he stopped the vehicle. When they went back to the scene of the crime, he saw 25 blood dripping and blood stains on the sidewalk. On December 13, 1994, public respondent Sandiganbayan convicted each of the petitioners of two (2) counts of murder. The dispositive portion of its Decision reads as follows: WHEREFORE, after joint trial on the merits in the above-numbered cases, judgment is hereby rendered in the following: I. In Crim. Case No. 16674 accused Edgardo Herrera y [B]altoribio and Redentor Mariano y Antonio are hereby found guilty beyond reasonable doubt as co-principals in the offense of Murder, as defined and penalized by Article 248 of the Revised Penal Code, qualified by treachery and with the generic aggravating circumstance of taking advantage of their public positions, abuse of superior strength, in band and use of a motor vehicle, without any mitigating circumstance in offset, and each of the accused is hereby sentenced to suffer the penalty of reclusion perpetua in said case, with the accessory penalties of imposed by law; to indemnify, jointly and severally, the heirs of the late George Go in the amounts of P11,500.00 as actual damages, plus P500,000.00 in the form of unrealized earnings and income. II. In Crim. Case No. 16675 accused Edgardo Herrera y [B]altoribio and Redentor Mariano y Antonio are herby found GUILTY beyond reasonable doubt as co-principals in the offense of Murder, defined and penalized by Article 248 of the Revised Penal Code, qualified by treachery and with the generic aggravating circumstance of taking advantage of their public positions, abuse of superior strength, in band and use of a motor vehicle, without any mitigating circumstance in offset, and each of the accused is hereby sentenced to suffer the penalty of reclusion perpetua in said case, with the accessory penalties of [i]mposed by law; to
26

indemnify, jointly and severally, the heirs of the late Shi Shu Yang in the amounts of P50,000.00; III. Both accused to pay their proportionate share of the costs of 27 these actions. On March 28, 1995, public respondent Sandiganbayan denied petitioners joint motion for reconsideration. On April 3, 1995, petitioner Herrrera filed a notice of appeal and thereafter on May 30, 1995, together with petitioner Mariano, he filed a petition for review on certiorari with this Court alleging the following grounds: 1. THE RESPONDENT SANDIGANBAYAN ERRED IN CONVICTING THE PETITIONERS FOR MURDER UNDER THE AMENDED INFORMATIONS; 2. THE RESPONDENT SANDIGANBAYAN ERRED IN REFUSING TO ALLOW THE PETITIONERS TO CONDUCT FURTHER CROSS EXAMINATION ON PROSECUTION WITNESS WINTERHALTER; 3. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING THAT THE TESTIMONY OF ALLEGED EYEWITNESS WINTERHALTER WAS WANTING IN CREDIBILITY; 4. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING THAT PROSECUTION WITNESS NBI MEDICO-LEGAL OFFICER AND HIS REAL EVIDENCE SUPPORT THE THEORY OF THE DEFENSE; 5. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING THAT THERE WAS TOTAL ABSENCE OF EVIDENCE TO SUPPORT CONSPIRACY; 6. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING THAT THE PETITIONERS ARE ENTITLED TO THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF OFFICIAL ACTS; AND 7. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING THAT THE EVIDENCE OF THE PROSECUTION FAILED TO ESTABLISH THE GUILT OF THE PETITIONERS BEYOND REASONABLE DOUBT.

The Court affirms the conviction. First. Petitioners insist that respondent Sandiganbayan erred in convicting them for the crime of murder under the amended informations as they had earlier been arraigned under the original informations for murder and their rearraignment under the amended informations placed them in double jeopardy. The rule on double jeopardy does not apply. Public respondent Sandiganbayan ordered the amendment of the informations and made it of record that the evidence adduced during the pre-trial of the case and the hearing on the petition for bail shall be deemed automatically reproduced as evidence during the trial of the case on the merits. Double jeopardy did not attach by virtue of petitioners plea of not guilty under the amended information. For a claim of double jeopardy to prosper, the following requisites must concur: (1) there is a complaint or information or other formal charge sufficient in form and substance to sustain a conviction; (2) the same is filed before a court of competent jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the case is otherwise dismissed or terminated without his 28 express consent. In the present case, petitioners and the other accused pleaded not guilty to the original informations. Thereafter, at the instance of the petitioners, through a joint petition for bail, they raised the issue of lack of jurisdiction on the ground that the prosecution failed to allege in the informations that the crimes were committed "in relation to their office." On the same day, respondent court ordered the amendment of the informations accordingly. Thus, the first requirement for double jeopardy to attach, that is, that the informations against the petitioners were valid, has not been complied with. Likewise, the fourth element was lacking. Petitioners cannot be validly convicted on the basis of the original information as the prosecution failed to allege in the informations that the crimes were committed "in relation to their office." Petitioners were thus not placed in danger of being convicted when they entered their plea of not guilty to the insufficient information. Moreover, there was no dismissal or termination of the case against petitioners. Furthermore, it was well-within the power of public respondent Sandiganbayan to order the amendment of the information under Section 4, Rule 117 of the Rules on Criminal Procedure which states that if the motion to quash is based on an alleged defect of the complaint or information which can be cured by amendment, the court shall order that an amendment be

made. If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment. Second. Petitioners make much of the fact the public respondent Sandiganbayan should have allowed their counsel to conduct further crossexamination on prosecution witness Winterhalter. Rule 132, Section 6 of the Revised Rules on Evidence provides that upon the termination of the direct examination, the witness may be crossexamined by the adverse party as to any matter stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias or the reverse, and to elicit all important facts bearing upon the issue. The crossexamination of a witness is a right of a party against whom he is called. Article III, Section 14(2) of the Constitution states that the accused shall have the right to meet the witnesses face to face. Rule 115, Section 1(f) of the Revised Rules of Criminal Procedure also states that, in all criminal prosecutions, the accused shall have the right to confront and crossexamine the witnesses against him. Indeed, petitioners counsel has conducted an extensive cross-examination of witness Winterhalter on the scheduled dates of hearing. Petitioners, therefore, cannot claim there has been any procedural infirmity in the proceedings. Moreover, the trial court has the power to direct the course of the trial either to shorten or to extend the direct or cross examination of a counsel. Under Rule 133, Section 6 of the Revised Rules on Evidence, the court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution. Thus, it is within the prerogative of the trial court to determine when to terminate the presentation of the evidence of the prosecution or the defense. Third. Petitioners attempt to destroy the credibility of prosecution witness Winterhalter fails. The trial court had the opportunity to observe first-hand the demeanor and deportment of the witnesses, and, therefore, its findings that the witnesses for the prosecution are to be believed over those of the defense are entitled to great weight. Winterhalter recognized the petitioners as the ones who cooperated with Pat. Barrera in killing the victims. She saw the events unfolding with the use of her binoculars 80-90 meters away. She

established the identity of the petitioners as the companions of Pat. Barrera when he effected the killing. It has been ruled that findings of fact of the trial court on credibility of witnesses should be accorded the highest respect. The Court has refrained from interfering with the judgment of the trial court in passing on the credibility of witnesses unless there appears on record some fact or circumstance of weight and influence which has been overlooked or the significance of which as been misapprehended or misinterpreted. None exists in this case. After the incident, Winterhalters neighbor, who was also a foreigne r, has been receiving death threats. She herself has been getting death threats too, yet she voluntarily testified in order to shed light on the commission of the crime. In fact, she did not even know the two victims. Indeed, where there is nothing to indicate that a witness was moved by improper motives, his positive and categorical declarations on the witness stand, made under solemn oath, should be given full faith and credence. It has not been shown that Winterhalter has any reason to falsely implicate petitioners. Winterhalter narrated that Pat. Barrera and Pat. Alcalde, together with petitioners, were responsible for the death of the victims. This was confirmed by the post mortem report prepared by Dr. Roberto Garcia, medico legal officer of the NBI, showing the gunshot wounds on the different parts of the victims body. Fourth. Petitioners would persuade the Court that the testimony of the NBIMedico Legal Officer, a prosecution witness, supports the theory of the defense that they acted in self-defense. This argument cannot stand. By invoking the justifying circumstance of selfdefense, petitioners assume the onus of proving: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel the unlawful aggression; and (3) lack of sufficient provocation on the part of the person defending himself. Petitioners failed to discharge this burden. To proceed with the argument that there was unlawful aggression by the two deceased who tried to get the pistol tucked in the waist of one of the police officers, petitioners should prove that they used reasonable means in repelling the aggression. Considering that both deceased where handcuffed and unarmed and had restricted movements, it could only mean that the perceived threat to petitioners lives were not sufficiently serious, in which case they were not justified in shooting the hapless victims who were unarmed. Petitioners could have simply subdued the two victims in a manner as to engage them in a fight without necessarily killing them. Moreover, the

autopsy reports showing the extent of the wounds sustained by George Go and Shi Shu Yang tend to discredit the version of the defense. Fifth. Petitioners assert that there was total absence of evidence to support the theory that conspiracy attended the commission of the crime. Conspiracy can be inferred from the acts of the accused which clearly manifest a concurrence of wills, a common intent or design to commit a crime. The familiar rule in conspiracy is that when two or more persons agree or conspire to commit a crime, each is responsible, when the conspiracy is proven, for all the acts of the others, done in furtherance of the 29 conspiracy. In this case, petitioner Herrera drove the vehicle along Timothy Street to a place which was less conspicuous to passersby. There, Pat. Alcalde, Pat. Barrera, and petitioner Mariano brought out the two victims from the back portion of the van in order to perpetuate the killing. Petitioner Mariano alighted from the right front seat of the van and stood beside Pat. Alcalde and Pat. Barrera who began shooting the victims. According to Winterhalter, petitioner Mariano even appeared to be writing something on a sheet of paper immediately before the shooting, although it cannot be determined with certainty as to whether he was making an inquiry or merely noting the names of the victims. While it was Pat. Barrera who actually shot the two victims, the evidence showed a common design on the part of both petitioners as they did not do anything to prevent him from killing the victims, thus, indicative of the fact that they are in unison with the criminal design of the Pat. Barrera. Petitioner Herrera alighted form the van without doing anything to prevent the killing, and worse, after the killing took place along the street, petitioner Herrera even helped carry the two victims into the van while petitioner Mariano, the driver, remained in the vehicle during the incident. Consequently, applying the rule that the act of one is the act of all, petitioners are thus as guilty as Pat. Barrera and Pat. Alcalde. In fact, conspiracy need not be established by direct evidence but may be inferred from the surrounding circumstances. Sixth. Intertwined with their argument that they were acting in self-defense, petitioners want this Court to appreciate the presumption of regularity in the performance of their official acts. This contention has no merit. In order to consider the defense of fulfillment of a duty, it must be shown that: (1) the accused acted in the performance of a duty or in the lawful exercise of a right or office; and (2) the injury caused or the offense committed is the necessary consequence of the due 30 performance of duty or the lawful exercise of a right or office. There was no showing that petitioners should resort to inflicting injuries and even to the

extent of killing the victims as there was no resistance at all from them when they were apprehended. The two victims were handcuffed and unarmed while the petitioners and the other police officers were armed with pistols and a rifle. Aida Veloria Magsipoc, Supervising Forensic Chemist of the NBI, per Chemistry Report No. C-89-1606, conducted the paraffin test on George Go and Shi Shu Yang which yielded negative results, thus showing that the victims never fired a gun and were totally defenseless in the face of the fully armed police officers. Petitioners anchor their argument that they merely acted in self-defense. This contention has no merit. The accused who invokes self-defense thereby admits having killed the victim, and the burden of evidence is shifted on him to prove, with clear and convincing evidence, the confluence of the following essential elements: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation 31 on the part of the person defending himself. Moreover, the nature and number of wounds inflicted by the accused are constantly and unremittingly considered as important indicia which disprove a plea of self-defense or defense of stranger because they demonstrate a 32 determined effort to kill the victim and not just defend oneself. The victims were repeatedly shot at close range and on vital parts of their bodies, thus indicia that the police officers really intended to kill them. Clearly, the presumption of regularity in the performance of official duties on the part of the petitioners and the other police officers does not apply. Seventh. Petitioners maintain that the prosecution failed to establish their guilt beyond reasonable doubt. On the contrary, the killing of the two victims was proved to have been committed with the qualifying circumstance of treachery. The essence of treachery is a deliberate and sudden attack, affording the hapless, unarmed and unsuspecting victim no chance to resist or to escape. Frontal attack can be treacherous when it is sudden and unexpected and the victim is unarmed. What is decisive is that the execution of the attack made it 33 impossible for the victim to defend himself/herself or to retaliate. The records are extant on the findings of respondent Sandiganbayan that when petitioner Herrera drove the patrol car along Timothy Street to an practically deserted area and isolated from traffice and pedestrians, Pat. Alcalde, Pat. Barrera, and petitioner Mariano brought out the two victims from the back portion of the patrol car in order to eventually salvage them which showed that all the police officers had a community of criminal design.

Petitioner Mariano mad the pretense of writing down something prior to the shooting incident. It would appear that he was faking an alleged interrogation or trying to get the name of Shi Shu Yang, whose identity was not immediately known, yet the fact remains that he did not do anything to prevent the killing and even helped in loading the body of George Go inside the patrol car. Clearly, the elements of murder have been proven: 1). that the two victims were killed; 2). that petitioners and the two other accused killed the victims; 3). that the killing was attended by the qualifying circumstance of treachery committed by the petitioners and the two other accused who conspired together in killing the victims; and 4). that the killing was not parricide or infanticide. Eighth. Public respondent Sandiganbayan did not grant any award of damages in favor of the heirs of Shi Shu Yang and George Go y Tan. When death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and 34 (5) temperate damages. Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the commission of the crime. Under prevailing jurisprudence, the award of P50,000 to the heirs of the victims as civil 35 indemnity is in order. In cases of murder and homicide, moral damages may be awarded without need of allegation and proof of the emotional suffering of the heirs, other than the death of the victim, since the emotional wounds from the vicious killing of the victims cannot be denied. Thus, the 36 award of P50,000 is proper. As to the award of actual damages, Edna Go testified that she incurred funeral expenses of P11,500. Moreover, the award of exemplary damages of P25,000 is proper since the qualifying circumstance of treachery attended the killing of the victims. Article 2230 of the Civil Code allows the award of exemplary damages as part of the civil liability when the crime was committed with one or more aggravating circumstances. The term aggravating circumstance as used therein should be construed in its generic 37 sense since it did not specify otherwise. WHEREFORE, the petition is DENIED for lack of showing that public respondent Sandiganbayan committed any reversible error. The Decision of public respondent Sandiganbayan, dated December 13, 1994, finding petitioners Pat. Eduardo Herrera y Baltoribio and Pat. Redentor Mariano y

Antonio guilty beyond reasonable doubt as co-principals for two (2) counts of murder and sentencing each of them to suffer the penalty of reclusion perpetuawith the accessory penalties of civil interdiction during the time of their sentence and perpetual absolute disqualification for public office is AFFIRMED WITH MODIFICATION. Additionally, petitioners are ORDERED to pay the heirs of Shi Shu Yang and George Go y Tan each in the amount of P50,000 as civil indemnity, P50,000 as moral damages, P11,500 for actual damages, and P25,000 as exemplary damages. Costs against the petitioners. SO ORDERED. ADOLFO S. AZCUNA Associate Justice