Medical Jurisprudence

1.) Calimutan vs. People, GR 152133 2.) Taylaran vs. People GR L 49149 October 23, 1981 3.) People vs. Bausing GR 64965 July 18, 1991 Answer the questions in each case given. 1.) What is the medical testimony or the evidence? 2.) What is the problem requiring medical testimony? 3.) How does the Supreme Court appreciate the testimony? Calimutan vs. People GR 152133

FACTS: Victim Cantre crossed paths with petitioner Calimutan and a certain Michael Bulalacao.Victim Cantre was harboring a grudge against Bulalacao, suspecting the latter as the culprit responsible for throwing stones at the Cantres house on a previous night. Thus, upon seeing Bulalacao, victim Cantre suddenly punched him. While Bulalacao ran away, petitioner Calimutan dashed towards the back of victim Cantre. Petitioner Calimutan then picked up a stone which he threw at victim Cantre, hitting him at the left side of his back. Victim Cantre complained of backache and also of stomachache, and was unable to eat. By nighttime, victim Cantre was alternately feeling cold and then warm. He was sweating profusely and his entire body felt numb. For the last time, he complained of backache and stomachache, and shortly thereafter, he died. Victim Cantre suffered from an internal hemorrhage and there was massive accumulation of blood in his abdominal cavity due to his lacerated spleen. The laceration of the spleen can be caused by any blunt instrument, such as a stone. Hence, Dr. Mendez confirmed the possibility that the victim Cantre was stoned to death by petitioner Calimutan. Issues Whether or not petitioner should be convicted of Homicide? Held: It should be remembered that the meeting was a chance encounter. While a running grudge existed between the victim Cantre and Bulalacao, there was none between the victim Cantre and petitioner Calimutan. The prosecution did not establish that petitioner Calimutan threw the stone at the victim Cantre with the specific intent of killing. What is obvious was petitioners intention to protect his helper Bulalacao who was, much younger and smaller in built than the victim Cantre. In the absence of such intent, petitioner Calimutan is only guilty of Reckless imprudence resulting in homicide.

Calimutan v. People G.R. No. 152133, February 9, 2006 Lesson: Proof beyond reasonable doubt, Defense of Stranger, Proximate Cause, intentional felonies and culpable felonies Laws Applicable: Art. 3, Art. 4, Par. 1 FACTS: February 4, 1996 around 10 am: Cantre and witness Saano, together with two other companions, had a drinking spree at a videoke bar but as they were headed home, they crossed paths with Calimutan and Michael Bulalacao. Cantre, 26 years old and 5 ft. 9 inches, had a grudge against Bulalacao, a 15 year-old boy of 5ft. for suspecting that he threw stones at the his house on a previous night so he punched him

 Seeking to protect Bulalacao and to stop Cantre, Calimutan picked a stone, as big as a mans fist and hitting Cantre at the left side of his back not noticing that Bulalacao was already able to runaway. Cantre stopped for a moment and held his back and Calimutan desisted from any other act of violence Witness Saano then brought Cantre home where he complained of backache and also of stomach ache and was unable to eat By night time, he felt cold then warm then he was sweating profusely and his entire body felt numb Having no vehicle, they could not bring him to a doctor so his mother just continue to wipe him with a piece of cloth and brought him some food when he asked. After eating a little, he vomited. Shortly after complaining again of his backache and stomach ache, he died. The Post-Mortem Examination Report and Certification of Death, issued and signed by Dr. Ulanday, stated that the cause of death of victim Cantre was cardio-respiratory arrest due to suspected food poisoning With the help of the Lingkod Bayan-Circulo de Abogadas of the ABS-CBN Foundation, an autopsy was done by Dr. Ronaldo B. Mendez which showed that there was internal hemorrhage and massive accumulation of blood in his abdominal cavity due to his lacerated spleen caused by a blunt object like a stone. RTC issued a warrant of arrest and during arraignment Calimutan pleaded not guilty to the crime of homicide RTC: Essentially adopting the prosecutions account of the incident, held that Calimutan was guilty beyond reasonable doubt of homicide with a penalty of imprisonment from 8 years of Prision Mayor as minimum, to 12 years and 1 day of Reclusion Temporal as maximum, and to indemnify the heirs of Philip Cantre the sum of P50,000 as compensatory damages and the sum of P50,000 as moral damages NOT defense of stranger , because after the boxing Bulalacao, he was able to run thereby the unlawful aggression by Cantre ceased The act of throwing a stone from behind which hit the victim at his back on the left side was a treacherous criminally liable for all the direct and natural consequences of this unlawful act even if the ultimate result had not been intended CA: Affirmed RTC Calimutan filed a petition for review on certiorari contending that the dissimilar findings on the cause of death constituted reasonable doubt

ISSUE: W/N he is guilty beyond reasonable doubt of homicide HELD: NO. MODIFIED Calimutan is found GUILTY beyond reasonable doubt of reckless imprudence resulting in homicide, under Article 365 of the Revised Penal Code, and is accordingly sentenced to imprisonment for a minimum period of 4 months of arresto mayor to a maximum period of two years and one day of prision correccional. Petitioner Calimutan is further ORDERED to pay the heirs of the victim Cantre the amount of P50,000.00 as civil indemnity for the latters death and P50,000.00 as moral damages Proof beyond reasonable doubt requires only a moral certainty or that degree of proof which produces conviction in an unprejudiced mind (NOT absolute certainty and the exclusion of all possibility of error) Dr. Mendezs testimony as an expert witness is evidence, and although it does not necessarily bind the courts, it is accorded great weight and probative value may sufficiently establish the causal relationship between the stone thrown by the Calimutan and the lacerated spleen of the Cantre which resulted in the latters deat h Proximate cause - cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and WITHOUT which the result would NOT have occurred Prosecution was able to establish that the proximate cause of the death of the Cantre was the stone thrown at him by petitioner Calimutan. Comparing the limited autopsy conducted by Dr. Ulanday and her unconfirmed suspicion of food poisoning of the victim Cantre, as opposed to the exhaustive autopsy performed by Dr. Mendez and his definitive finding of a ruptured spleen as the cause of death, then the latter, without doubt, deserves to be given credence by the courts Article 3 of the Revised Penal Code classifies felonies according to the means by which they are committed, in particular: 1.) intentional felonies - existence of malicious intent - act is performed with deliberate intent (with malice) 2.) culpable felonies - absence of malicious intent - act or omission of the offender is NOT malicious - the wrongful act results from imprudence, negligence, lack of foresight or lack of skil Absence of intent, Calimutan guilty beyond reasonable doubt of the culpable felony of reckless imprudence resulting in homicide under Article 365 of the Revised Penal Code Reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place.

ROLLIE CALIMUTAN vs PEOPLE, G.R. No. 152133

DECISION CHICO-NAZARIO, J.: In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, petitioner Rollie Calimutan prays for the reversal of the Decision of the Court of Appeals in CA-G.R. CR No. 23306, dated 29 August 2001, affirming the Decision of the Regional Trial Court (RTC), Branch 46, of Masbate, Masbate, in Criminal Case No. 8184, dated 19 November 1998, finding petitioner Calimutan guilty beyond reasonable doubt of the crime of homicide under Article 249 of the Revised Penal Code. The Informatio filed with the RTC charged petitioner Calimutan with the crime of homicide, allegedly committed as follows That on or about February 4, 1996, in the morning thereof, at sitio Capsay, Barangay Panique, Municipality of Aroroy, Province of Masbate, Philippines within the jurisdiction of this Honorable Court, the above-named accused with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and throw a stone at PHILIP CANTRE, hitting him at the back left portion of his body, resulting in laceration of spleen due to impact which caused his death a day after. CONTRARY TO LAW. Masbate, Masbate, September 11, 1996. Accordingly, the RTC issued, on 02 December 1996, a warrant for the arrest of petitioner Calimutan. On 09 January 1997, however, he was provisionally released after posting sufficient bailbond. During the arraignment on 21 May 1997, petitioner Calimutan pleaded not guilty to the crime of homicide charged against him. In the course of the trial, the prosecution presented three witnesses, namely: (1) Dr. Ronaldo B. Mendez, a Senior Medico-Legal Officer of the National Bureau of Investigation (NBI); (2) Belen B. Cantre, mother of the victim, Philip Cantre; and (3) Rene L. Saano, companion of the victim Cantre when the alleged crime took place. Their testimonies are collectively summarized below. On 04 February 1996, at around 10:00 a.m., the victim Cantre and witness Saano, together with two other companions, had a drinking spree at a videoke bar in Crossing Capsay, Panique, Aroroy, Masbate. From the videoke bar, the victim Cantre and witness Saano proceeded to go home to their respective houses, but along the way, they crossed paths with petitioner Calimutan and a certain Michael Bulalacao. Victim Cantre was harboring a grudge against Bulalacao, suspecting the latter as the culprit responsible for throwing stones at the Cantres house on a previous night. Thus, upon seeing Bulalacao, victim Cantre suddenly punched him. While Bulalacao ran away, petitioner Calimutan dashed towards the backs of victim Cantre and witness Saano. Petitioner Calimutan then picked up a stone, as big as a mans fist, which he threw at victim Cantre, hitting him at the left side of his back. When hit by the stone, victim Cantre stopped for a moment and held his back. Witness Saano put himself between the victim Cantre and petitioner Calimutan, and attempted to pacify the two, even convincing petitioner Calimutan to put down another stone he was already holding. He also urged victim Cantre and petitioner Calimutan to just go home. Witness Saano accompanied victim Cantre to the latters house, and on the way, victim Cantre complained of the pain in the left side of his back hit by the stone. They arrived at the Cantres house at around 12:00 noon, and witness Saano left victim Cantre to the care of the latters mother, Belen.

Victim Cantre immediately told his mother, Belen, of the stoning incident involving petitioner Calimutan. He again complained of backache and also of stomachache, and was unable to eat. By nighttime, victim Cantre was alternately feeling cold and then warm. He was sweating profusely and his entire body felt numb. His family would have wanted to bring him to a doctor but they had no vehicle. At around 3:00 a.m. of the following day, 05 February 1996, Belen was wiping his son with a piece of cloth, when victim Cantre asked for some food. He was able to eat a little, but he also later vomited whatever he ate. For the last time, he complained of backache and stomachache, and shortly thereafter, he died. Right after his death, victim Cantre was examined by Dr. Conchita S. Ulanday, the Municipal Health Officer of Aroroy, Masbate. The Post-Mortem Examination Repor and Certification of Death, issued and signed by Dr. Ulanday, stated that the cause of death of victim Cantre was cardio-respiratory arrest due to suspected food poisoning. The body of victim Cantre was subsequently embalmed and buried on 13 February 1996. Unsatisfied with the findings of Dr. Ulanday, the Cantre family, with the help of the Lingkod Bayan-Circulo de Abogadas of the ABS-CBN Foundation, requested for an exhumation and autopsy of the body of the victim Cantre by the NBI. The exhumation and autopsy of the body of the victim Cantre was conducted by Dr. Ronaldo B. Mendez on 15 April 1996, after which, he reported the following findings Body; fairly well-preserved with sign of partial autopsy; clad in white Barong Tagalog and blue pants placed inside a wooden golden-brown coffin and buried in a concrete niche. Contused-abrasion, 2.3 x 1.0 cms., posterior chest wall, left side. Hematoma, 16.0 x 8.0 cms., abdomen, along mid-line. Hemoperitoneum, massive, clotte [sic]. Laceration, spleen. Other visceral organ, pale and embalmed. Stomach contains small amount of whitish fluid and other partially digested food particles. xxxx CAUSE OF DEATH: TRAUMATIC INJURY OF THE ABDOMEN. In his testimony before the RTC, Dr. Mendez affirmed the contents of his exhumation and autopsy report. He explained that the victim Cantre suffered from an internal hemorrhage and there was massive accumulation of blood in his abdominal cavity due to his lacerated spleen. The laceration of the spleen can be caused by any blunt instrument, such as a stone. Hence, Dr. Mendez confirmed the possibility that the victim Cantre was stoned to death by petitioner Calimutan. To counter the evidence of the prosecution, the defense presented the sole testimony of the accused, herein petitioner, Calimutan. According to petitioner Calimutan, at about 1:00 p.m. on 04 February 1996, he was walking with his house helper, Michael Bulalacao, on their way to Crossing Capsay, Panique, Aroroy, Masbate, when they met with the victim Cantre and witness Saano. The victim Cantre took hold of Bulalacao and punched him several times. Petitioner Calimutan attempted to pacify the

victim Cantre but the latter refused to calm down, pulling out from his waist an eight-inch Batangas knife and uttering that he was looking for trouble, either "to kill or be killed." At this point, petitioner Calimutan was about ten meters away from the victim Cantre and was too frightened to move any closer for fear that the enraged man would turn on him; he still had a family to take care of. When he saw that the victim Cantre was about to stab Bulalacao, petitioner Calimutan picked up a stone, which he described as approximately one-inch in diameter, and threw it at the victim Cantre. He was able to hit the victim Cantre on his right buttock. Petitioner Calimutan and Bulalacao then started to run away, and victim Cantre chased after them, but witness Saano was able to pacify the victim Cantre. Petitioner Calimutan allegedly reported the incident to a kagawad of Barangay Panique and to the police authorities and sought their help in settling the dispute between Bulalacao and the victim Cantre. Bulalacao, meanwhile, refused to seek medical help despite the advice of petitioner Calimutan and, instead, chose to go back to his hometown. Petitioner Calimutan was totally unaware of what had happened to the victim Cantre after the stoning incident on 04 February 1996. Some of his friends told him that they still saw the victim Cantre drinking at a videoke bar on the night of 04 February 1996. As far as he knew, the victim Cantre died the following day, on 05 February 1996, because of food poisoning. Petitioner Calimutan maintained that he had no personal grudge against the victim Cantre previous to the stoning incident. On 19 November 1998, the RTC rendered its Decision, essentially adopting the prosecutions account of the incident on 04 February 1996, and pronouncing that It cannot be legally contended that the throwing of the stone by the accused was in defense of his companion, a stranger, because after the boxing Michael was able to run. While it appears that the victim was the unlawful aggressor at the beginning, but the aggression already ceased after Michael was able to run and there was no more need for throwing a stone. The throwing of the stone to the victim which was a retaliatory act can be considered unlawful, hence the accused can be held criminally liable under paragraph 1 of Art. 4 of the Revised Penal Code. The act of throwing a stone from behind which hit the victim at his back on the left side was a treacherous one and the accused committed a felony causing physical injuries to the victim. The physical injury of hematoma as a result of the impact of the stone resulted in the laceration of the spleen causing the death of the victim. The accused is criminally liable for all the direct and natural consequences of this unlawful act even if the ultimate result had not been intended. (Art. 4, Par. 1, Revised Penal Code; People vs. Narciso, CA-G.R. No. 03532-CR, Jan. 13, 1964) One is not relieved from criminal liability for the natural consequences of ones illegal acts merely because one does not intend to produce such consequences (U.S. vs. Brobst, 14 Phil. 310). The crime committed is Homicide as defined and penalized under Art. 249 of the Revised Penal Code. WHEREFORE, the Court finds and so holds that accused ROLLIE CALIMUTAN is GUILTY beyond reasonable doubt of the crime of Homicide defined and penalized under Art. 249 of the Revised Penal Code with no mitigating or aggravating circumstance and applying the Indeterminate Sentence Law hereby imposes the penalty of imprisonment from EIGHT (8) YEARS of Prision Mayor as minimum, to TWELVE (12) YEARS and ONE (1) DAY of Reclusion Temporal as maximum, and to indemnify the heirs of Philip Cantre the sum of Fifty Thousand (P50,000.00) Pesos as compensatory damages and the sum of Fifty Thousand (P50,000.00) Pesos as moral damages, without subsidiary imprisonment in case of insolvency.

Petitioner Calimutan appealed the Decision of the RTC to the Court of Appeals. The Court of Appeals, in its Decision, dated 29 August 2001, sustained the conviction of homicide rendered by the RTC against petitioner Calimutan, ratiocinating thus The prosecution has sufficiently established that the serious internal injury sustained by the victim was caused by the stone thrown at the victim by the accused which, the accusedappellant does not deny. It was likewise shown that the internal injury sustained by the victim was the result of the impact of the stone that hit the victim. It resulted to a traumatic injury of the abdomen causing the laceration of the victims spleen. This is clearly shown by the autopsy report prepared by Dr. Ronaldo Mendez, a Senior Medico Legal Officer of the NBI after the exhumation of the victims cadaver The Court cannot give credence to the post mortem report prepared by Municipal Health Officer Dr. Conchita Ulanday stating that the cause of the victims death was food pois oning. Dr. Ulanday was not even presented to testify in court hence she was not even able to identify and/or affirm the contents of her report. She was not made available for cross-examination on the accuracy and correctness of her findings. Dr. Conchita Ulandays post mortem report cannot prevail over the autopsy report (Exh. "C") of the Medico-Legal Officer of the NBI who testified and was cross-examined by the defense. Besides, if accused-appellant was convinced that the victim indeed died of food poisoning, as reported by Dr. Conchita Ulanday, why did they not present her as their witness to belie the report of the Medico-Legal Officer of the NBI. The trial courts evaluation of the testimony of Dr. Mendez is accorded the highest respect because it had the opportunity to observe the conduct and demeanor of said witness. WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Masbate, Branch 46, finding accused-appellant guilty beyond reasonable doubt of the crime of homicide is hereby AFFIRMED. The Court of Appeals, in its Resolution, dated 15 January 2002, denied the Motion for Reconsideration filed by petitioner Calimutan for lack of merit since the issues raised therein had already been passed and ruled upon in its Decision, dated 29 August 2001. Comes now petitioner Calimutan, by way of the present Petition for Review on Certiorari, seeking (1) the reversal of the Decisions of the RTC, dated 19 November 1998, and of the Court of Appeals, dated 29 August 2001, convicting him of the crime of homicide; and, (2) consequently, his acquittal of the said crime based on reasonable doubt. Petitioner Calimutan contended that the existence of the two autopsy reports, with dissimilar findings on the cause of death of the victim Cantre, constituted reasonable doubt as to the liability of petitioner Calimutan for the said death, arguing that x x x [I]t was Dra. Conchita Ulanday, Municipal Health Officer of Aroroy, Masbate was the first physician of the government who conducted an examination on the cadaver of the victim Philip Cantre whose findings was that the cause of his death was due to food poisoning while the second government physician NBI Medico Legal Officer Dr. Ronaldo Mendez whose findings was that the cause of the death was due to a traumatic injury of the abdomen caused by a lacerated spleen and with these findings of two (2) government physicians whose findings are at variance with each other materially, it is humbly contended that the same issue raised a reasonable doubt on the culpability of the petitioner.

As there are improbabilities and uncertainties of the evidence for the prosecution in the case at bar, it suffices to reaise [sic] reasonable doubt as to the petitioners guilt and therefore, he is entitled to acquittal (People vs. Delmendo, G.R. No. 32146, November 23, 1981). In this jurisdiction, an accused in a criminal case may only be convicted if his or her guilt is established by proof beyond reasonable doubt. Proof beyond reasonable doubt requires only a moral certainty or that degree of proof which produces conviction in an unprejudiced mind; it does not demand absolute certainty and the exclusion of all possibility of error. In the Petition at bar, this Court finds that there is proof beyond reasonable doubt to hold petitioner Calimutan liable for the death of the victim Cantre. Undoubtedly, the exhumation and autopsy report and the personal testimony before the RTC of prosecution witness, NBI Senior Medico-Legal Officer Dr. Mendez, are vital pieces of evidence against petitioner Calimutan. Dr. Mendez determined that the victim Cantre died of internal hemorrhage or bleeding due to the laceration of his spleen. In his testimony, Dr. Mendez clearly and consistently explained that the spleen could be lacerated or ruptured when the abdominal area was hit with a blunt object, such as the stone thrown by petitioner Calimutan at the victim Cantre. It bears to emphasize that Dr. Mendez was presented by the prosecution as an expert witness, whose "competency and academic qualification and background" was admitted by the defense itself. As a Senior Medico-Legal Officer of the NBI, Dr. Mendez is presumed to possess sufficient knowledge of pathology, surgery, gynecology, toxicology, and such other branches of medicine germane to the issues involved in a case. Dr. Mendezs testimony as an expert witness is evidence , and although it does not necessarily bind the courts, both the RTC and the Court of Appeals had properly accorded it great weight and probative value. Having testified as to matters undeniably within his area of expertise, and having performed a thorough autopsy on the body of the victim Cantre, his findings as to the cause of death of the victim Cantre are more than just the mere speculations of an ordinary person. They may sufficiently establish the causal relationship between the stone thrown by the petitioner Calimutan and the lacerated spleen of the victim Cantre which, subsequently, resulted in the latters death. With no apparent mistake or irregularity, whether in the manner by which Dr. Mendez performed the autopsy on the body of the victim Cantre or in his findings, then his report and testimony must be seriously considered by this Court. Moreover, reference to other resource materials on abdominal injuries would also support the conclusion of Dr. Mendez that the stone thrown by petitioner Calimutan caused the death of the victim Cantre. One source explains the nature of abdominal injuries in the following manner The skin may remain unmarked inspite of extensive internal injuries with bleeding and disruption of the internal organs. The areas most vulnerable are the point of attachment of internal organs, especially at the source of its blood supply and at the point where blood vessels change direction. The area in the middle superior half of the abdomen, forming a triangle bounded by the ribs on the two sides and a line drawn horizontally through the umbilicus forming its base is vulnerable to trauma applied from any direction. In this triangle are found several blood vessels changing direction, particularly the celiac trunk, its branches (the hepatic, splenic and gastric arteries) as well as the accompanying veins. The loop of the duodenum, the ligament of Treitz and the pancreas are in the retroperitoneal space, and the stomach and transverse colon are in the

triangle, located in the peritoneal cavity. Compression or blow on the area may cause detachment, laceration, stretch-stress, contusion of the organs (Legal Medicine 1980, Cyril H. Wecht et., p. 41). As to injuries to the spleen, in particular, the same source expounds that The spleen usually suffers traumatic rupture resulting from the impact of a fall or blow from the crushing and grinding effects of wheels of motor vehicles. Although the organ is protected at its upper portion by the ribs and also by the air-containing visceral organs, yet on account of its superficiality and fragility, it is usually affected by trauma. x x x. Certainly, there are some terms in the above-quoted paragraphs difficult to comprehend for people without medical backgrounds. Nevertheless, there are some points that can be plainly derived therefrom: (1) Contrary to common perception, the abdominal area is more than just the waist area. The entire abdominal area is divided into different triangles, and the spleen is located in the upper triangle, bounded by the rib cage; (2) The spleen and all internal organs in the same triangle are vulnerable to trauma from all directions. Therefore, the stone need not hit the victim Cantre from the front. Even impact from a stone hitting the back of the victim Cantre, in the area of the afore-mentioned triangle, could rupture the spleen; and (3) Although the spleen had already been ruptured or lacerated, there may not always be a perceptible external injury to the victim. Injury to the spleen cannot, at all times, be attributed to an obvious, external injury such as a cut or bruise. The laceration of the victim Cantres spleen can be caused by a stone thrown hard enough, which qualifies as a nonpenetrating trauma Nonpenetrating Trauma. The spleen, alone or in combination with other viscera, is the most frequently injured organ following blunt trauma to the abdomen or the lower thoracic cage. Automobile accidents provide the predominating cause, while falls, sledding and bicycle injuries, and blows incurred during contact sports are frequently implicated in children. x x x The sheer impact of the stone thrown by petitioner Calimutan at the back of the victim Cantre could rupture or lacerate the spleen an organ described as vulnerable, superficial, and fragile even without causing any other external physical injury. Accordingly, the findings of Dr. Mendez that the victim Cantre died of internal hemorrhage from his lacerated spleen, and the cause of the laceration of the spleen was the stone thrown by petitioner Calimutan at the back of the victim Cantre, does not necessarily contradict his testimony before the RTC that none of the external injuries of the victim Cantre were fatal. Based on the foregoing discussion, the prosecution was able to establish that the proximate cause of the death of the victim Cantre was the stone thrown at him by petitioner Calimutan. Proximate cause has been defined as "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred." The two other witnesses presented by the prosecution, namely Saano and Belen Cantre, had adequately recounted the events that transpired on 04 February 1996 to 05 February 1996. Between the two of them, the said witnesses accounted for the whereabouts, actions, and physical condition of the victim Cantre during the said period. Before the encounter with petitioner Calimutan and Bulalacao, the victim Cantre seemed to be physically fine. However, after being hit at the back by the stone thrown at him by petitioner Calimutan, the victim Cantre had continuously complained of backache. Subsequently, his physical condition rapidly deteriorated, until finally, he died. Other than being stoned by petitioner Calimutan, there was no other instance when the victim Cantre may have been hit by another blunt instrument which could have caused the laceration of his spleen.

Hence, this Court is morally persuaded that the victim Cantre died from a lacerated spleen, an injury sustained after being hit by a stone thrown at him by petitioner Calimutan. Not even the post-mortem report of Dr. Ulanday, the Municipal Health Officer who first examined the body of the victim Cantre, can raise reasonable doubt as to the cause of death of the victim Cantre. Invoking Dr. Ulandays post-mortem report, the defense insisted on the possibility that the victim Cantre died of food poisoning. The post-mortem report, though, cannot be given much weight and probative value for the following reasons First, a closer scrutiny of the words used by Dr. Ulanday in her post-mortem report, as well as in the death certificate of the victim Cantre, reveals that although she suspected food poisoning as the cause of death, she held back from making a categorical statement that it was so. In the post-mortem report, she found that "x x x the provable (sic) cause of death was due to cardiorespiratory arrest. Food poisoning must be confirm (sic) by laboratory e(x)am." In the death certificate of the victim Cantre, she wrote that the immediate cause of death was "CardioRespiratory Arrest" and the antecedent cause was "Food Poisoning Suspect." There was no showing that further laboratory tests were indeed conducted to confirm Dr. Ulandays suspicion that the victim Cantre suffered from food poisoning, and without such confirmation, her suspicion as to the cause of death remains just that a suspicion. Second, Dr. Ulanday executed before the NBI a sworn statement in which she had explained her findings in the post-mortem report, to wit 05. Q: Did you conduct an autopsy on his cadaver? A: I did sir, but not as exhaustive as that done by the NBI Medico-legal. 06. Q: Now, what do you want to state regarding your certification on the death of PHILIP B. CANTRE? A: I stated in the certification and even in the Death Certificate about "Food Poisoning". What I stated in the Death Certificate was that CANTRE was a SUSPECTED victim of food poisoning. I didnt state that he was a case of food poisoning. And in the Certification, I even recommended that an examination be done to confirm that suspicion. 07. Q: What gave you that suspicion of poisoning? A: As there were no external signs of fatal injuries except that of the contusion or abrasion, measuring as that size of a 25 centavo coin, I based my suspicion from the history of the victim and from the police investigation. 08. Q: You also mentioned in your Certification that there was no internal hemorrhage in the cadaver. Did you open the body of the cadaver? A: As I have already stated sir, I did not conduct an exhaustive autopsy. I made an incision on the abdomen and I explored the internal organs of the cadaver with my hand in search for any clotting inside. But I found none. I did not open the body of the cadaver. 09. Q: You mentioned about a contusion you have observed on the cadaver. Where was it located? A: On the left portion of his back, sir. 10. Q: Now, is it possible that if somebody be hit by a hard object on that part of his body, his SPLEEN could be injured?

A: Yes, sir. But that would depend on how strong or forceful the impact was. In contrast, Dr. Mendez described in his testimony before the RTC how he conducted the autopsy of the body of the victim Cantre, as follows Q What specific procedure did you do in connection with the exhumation of the body of the victim in this case? A We opened the head, chest and the abdomen. Q That was part of the autopsy you have conducted? A Yes, sir. Q Aside from opening the head as well as the body of the victim Philip Cantre, what other matters did you do in connection therewith? A We examined the internal organs. Q What in particular internal organs you have examined? A The brain, the heart, the lungs, the liver, the kidneys, the pancreas plus the intestines. xxxx Q The cause of death as you have listed here in your findings is listed as traumatic injury of the abdomen, will you kindly tell us Doctor what is the significance of this medical term traumatic injury of the abdomen? A We, medico-legal officers of the NBI dont do what other doctors do as they make causes of death as internal hemorrhage we particularly point to the injury of the body like this particular case the injury was at the abdomen of the victim. Q Will you tell as Doctor what particular portion of the abdomen of the victim this traumatic injury is located? A Along the midline but the damaged organ was at the left. Q What particular organ are you referring to? A The spleen, sir. The difference in the extent of the examinations conducted by the two doctors of the body of the victim Cantre provides an adequate explanation for their apparent inconsistent findings as to the cause of death. Comparing the limited autopsy conducted by Dr. Ulanday and her unconfirmed suspicion of food poisoning of the victim Cantre, as opposed to the exhaustive autopsy performed by Dr. Mendez and his definitive finding of a ruptured spleen as the cause of death of the victim Cantre, then the latter, without doubt, deserves to be given credence by the courts. Third, that the prosecution no longer presented Dr. Ulanday before the RTC despite being included in its list of witnesses did not amount to a willful suppression of evidence that would give rise to the presumption that her testimony would be adverse to the prosecution if produced. As this Court already expounded in the case of People v. Jumamoy

The prosecution's failure to present the other witnesses listed in the information did not constitute, contrary to the contention of the accused, suppression of evidence. The prosecutor has the exclusive prerogative to determine the witnesses to be presented for the prosecution. If the prosecution has several eyewitnesses, as in the instant case, the prosecutor need not present all of them but only as many as may be needed to meet the quantum of proof necessary to establish the guilt of the accused beyond reasonable doubt. The testimonies of the other witnesses may, therefore, be dispensed with for being merely corroborative in nature. This Court has ruled that the non-presentation of corroborative witnesses would not constitute suppression of evidence and would not be fatal to the prosecution's case. Besides, there is no showing that the eyewitnesses who were not presented in court as witnesses were not available to the accused. We reiterate the rule that the adverse presumption from a suppression of evidence is not applicable when (1) the suppression is not willful; (2) the evidence suppressed or withheld is merely corroborative or cumulative; (3) the evidence is at the disposal of both parties; and (4) the suppression is an exercise of a privilege. Moreover, if the accused believed that the failure to present the other witnesses was because their testimonies would be unfavorable to the prosecution, he should have compelled their appearance, by compulsory process, to testify as his own witnesses or even as hostile witnesses. It was a judgment call for the prosecution to no longer present Dr. Ulanday before the RTC, perhaps believing that it had already presented sufficient evidence to merit the conviction of petitioner Calimutan even without her testimony. There was nothing, however, preventing the defense from calling on, or even compelling, with the appropriate court processes, Dr. Ulanday to testify in court as its witness if it truly believed that her testimony would be adverse to the case presented by the prosecution. While this Court is in accord with the factual findings of the RTC and the Court of Appeals and affirms that there is ample evidence proving that the death of the victim Cantre was caused by his lacerated spleen, an injury which resulted from being hit by the stone thrown at him by petitioner Calimutan, this Court, nonetheless, is at variance with the RTC and the Court of Appeals as to the determination of the appropriate crime or offense for which the petitioner should have been convicted for. Article 3 of the Revised Penal Code classifies felonies according to the means by which they are committed, in particular: (1) intentional felonies, and (2) culpable felonies. These two types of felonies are distinguished from each other by the existence or absence of malicious intent of the offender In intentional felonies, the act or omission of the offender is malicious. In the language of Art. 3, the act is performed with deliberate intent (with malice). The offender, in performing the act or in incurring the omission, has the intention to cause an injury to another. In culpable felonies, the act or omission of the offender is not malicious. The injury caused by the offender to another person is "unintentional, it being simply the incident of another act performed without malice." (People vs. Sara, 55 Phil. 939). As stated in Art. 3, the wrongful act results from imprudence, negligence, lack of foresight or lack of skill. In the Petition at bar, this Court cannot, in good conscience, attribute to petitioner Calimutan any malicious intent to injure, much less to kill, the victim Cantre; and in the absence of such intent, this Court cannot sustain the conviction of petitioner Calimutan for the intentional crime of homicide, as rendered by the RTC and affirmed by the Court of Appeals. Instead, this Court finds petitioner Calimutan guilty beyond reasonable doubt of the culpable felony of reckless imprudence resulting in homicide under Article 365 of the Revised Penal Code.

Article 365 of the Revised Penal Code expressly provides for the definition of reckless imprudence Reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. There are several circumstances, discussed in the succeeding paragraphs, that demonstrate petitioner Calimutans lack of intent to kill the victim Cantre, and conversely, that substantiate the view of this Court that the death of victim Cantre was a result of petitioner Calimutans reckless imprudence. The RTC and the Court of Appeals may have failed to appreciate, or had completely overlooked, the significance of such circumstances. It should be remembered that the meeting of the victim Cantre and witness Saano, on the one hand, and petitioner Calimutan and his helper Bulalacao, on the other, was a chance encounter as the two parties were on their way to different destinations. The victim Cantre and witness Saano were on their way home from a drinking spree in Crossing Capsay, while petitioner Calimutan and his helper Bulalacao were walking from the market to Crossing Capsay. While the evidence on record suggests that a running grudge existed between the victim Cantre and Bulalacao, it did not establish that there was likewise an existing animosity between the victim Cantre and petitioner Calimutan.1avvphil.net In both versions of the events of 04 February 1996 submitted by the prosecution and the defense, it was the victim Cantre who was the initial aggressor. He suddenly punched Bulalacao, the helper and companion of petitioner Calimutan, when they met on the road. The attack of the victim Cantre was swift and unprovoked, which spurred petitioner Calimutan into responsive action. Given that this Court dismisses the claim of petitioner Calimutan that the victim Cantre was holding a knife, it does take into account that the victim Cantre was considerably older and bigger, at 26 years of age and with a height of five feet and nine inches, compared to Bulalacao, the boy he attacked, who was only 15 years old and stood at about five feet. Even with his bare hands, the victim Cantre could have hurt Bulalacao. Petitioner Calimutan sought only to protect Bulalacao and to stop the assault of the victim Cantre against the latter when he picked up a stone and threw it at the victim Cantre. The stone was readily available as a weapon to petitioner Calimutan since the incident took place on a road. That he threw the stone at the back of the victim Cantre does not automatically imply treachery on the part of petitioner Calimutan as it is highly probable that in the midst of the fray, he threw the stone rashly and impulsively, with no regard as to the position of the victim Cantre. When the victim Cantre stopped his aggression after being hit by the stone thrown by petitioner Calimutan, the latter also desisted from any other act of violence against the victim Cantre. The above-described incident could not have taken more than just a few minutes. It was a very brief scuffle, in which the parties involved would hardly have the time to ponder upon the most appropriate course of action to take. With this in mind, this Court cannot concur in the declaration made by the Court of Appeals that petitioner Calimutan threw the stone at the victim Cantre as a retaliatory act. It was evidently a swift and spontaneous reaction to an unexpected and unprovoked attack by the victim Cantre on Bulalacao. That Bulalacao was already able to run away from the victim Cantre may have escaped the notice of the petitioner Calimutan who, under the pressure of the circumstances, was forced to act as quickly as possible. The prosecution did not establish that petitioner Calimutan threw the stone at the victim Cantre with the specific intent of killing, or at the very least, of harming the victim Cantre. What

is obvious to this Court was petitioner Calimutans intention to drive away the attacker who was, at that point, the victim Cantre, and to protect his helper Bulalacao who was, as earlier described, much younger and smaller in built than the victim Cantre. Granting that petitioner Calimutan was impelled by a lawful objective when he threw the stone at the victim Cantre, his act was committed with inexcusable lack of precaution. He failed to consider that a stone the size of a mans fist could inflict substantial injury on someone. He also miscalculated his own strength, perhaps unaware, or even completely disbelieving, that he could throw a stone with such force as to seriously injure, or worse, kill someone, at a quite lengthy distance of ten meters. Since it is irrefragable that the stone thrown by petitioner Calimutan at the victim Cantre was the proximate cause of the latters death, despite being done with reckl ess imprudence rather than with malicious intent, petitioner Calimutan remains civilly liable for such death. This Court, therefore, retains the reward made by the RTC and the Court of Appeals to the heirs of the victim Cantre of the amount of P50,000.00 as civil indemnity for his death and another P50,000.00 as moral damages. WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CR No. 23306, dated 29 August 2001, affirming the Decision of the RTC in Criminal Case No. 8184, dated 19 November 1998, is hereby MODIFIED. Petitioner Calimutan is found GUILTY beyond reasonable doubt of reckless imprudence resulting in homicide, under Article 365 of the Revised Penal Code, and is accordingly sentenced to imprisonment for a minimum period of 4 months of arresto mayor to a maximum period of two years and one day of prision correccional. Petitioner Calimutan is further ORDERED to pay the heirs of the victim Cantre the amount of P50,000.00 as civil indemnity for the latters death and P50,000.00 as moral damages. SO ORDERED.

TAYLARAN vs DE CASTRO, G.R. No. L-49149

Charged with murder ill the Court of First Instance of Bohol, appellant was convicted and sentenced to life imprisonment and to indemnify the heirs of the deceased in the sum of P 12,000 and to pay costs. Appealing to this Court, appellant insists on his defense of accidental, not deliberate killing. We quote hereunder from the appealed decision the versions of both the prosecution and the defense, as set forth therein: EVIDENCE FOR THE PROSECUTION At about 10:00 P.M. of November 5, 1976 accused called at the house of deceased Ofremia Atup y Sarabosing located in barrio Binliw, Ubay, Bohol for the purpose of submitting himself to the latter for treatment of his snake-bite located at this left foot. His announced purpose being good, the deceased opened the door for him. Once inside, the deceased took her medicine paraphernalia (she being a local quack doctor) and started treating the accused. Then all of a sudden the accused drew his small bolo (Exhibit A) and stabbed the deceased several times causing her to fall on the floor dead. After killing the deceased, accused proceeded to the house of the son of the deceased for the purpose of killing him and his wife but accused did not accomplish his purpose because the deceased's son refused to left him enter his house. After that the accused surrendered himself with his bolo to policeman Demetrio Basilad who

was then on guard at the municipal hall of Ubay. When asked why he killed the deceased who was also his grandmother-in-law, accused answered, 'because she promised to kill me with a 'barang', hence killed her first. (Testimonies of Salvador Atup, policeman Demetrio Basilad and Juanita Busalla) EVIDENCE FOR THE DEFENSE At about 9:00 P.M. on November 5, 1976 accused went to tend to his carabao. On the way, he was bitten by a snake at the smallest toe of his left foot. Hence, he proceeded to the house of his grandmother-in-law, Ofremia Sarabosing which was located in barrio Binliw Ubay, Bohol for treatment of snake-bite. Ofremia Sarabosing was a quack doctor known to cure snake-bites. He arrived at deceased's house at about 10:00 P.M. The deceased opened the door to let him enter. Once inside he and the deceased stood on the floor facing each other. Then the deceased instructed accused to open his snake-bite with a bolo (Exhibit A) so that the venom can be drained out. While he was opening his snake-bite with a bolo, he accidentally put out the light of the kerosene lamp which was placed on the floor, This prompted the deceased to re-light said lamp. She banded her body down with her two hands extended towards the floor to light said lamp. At the very time that deceased was bending her body downward, accused lifted his right hand which was holding the bolo upward, so that the point of the bolo accidentally hit deceased's right chest penetrating the nipple and resulting in her death. Upon realizing that the deceased was fatally wounded, accused asked for her forgiveness and after that he ran away. (Testimonies of accused himself and Elpidio Mendez). 1 As the trial court prefaced its decision, which version is correct? That the deceased died from wounds inflicted by the appellant is not disputed. As gleaned from the opposing versions set forth above, the conflict is in how the wounds were inflicted whether with deliberate intent, or purely by accident. It is extremely difficult to accept the accident version of appellant which he purveyed without corroboration. More than one wound was found sustained by the deceased, on different parts of the body. One single stroke could not have inflicted all of them. The first wound could possibly have been accidentally inflicted, but the other, wounds could not have been similarly inflicted if, as just pointed out, they did not result from the first blow. Their locations preclude that a single blow produced all the wounds. This fact robs the accident theory of appellant of any plausibility. The explanation of appellant as to how the wounds other than that located on the right chest was inflicted simply cannot inspire belief. In trying to succor the old woman when she fell upon being hit accidentally with the point of the bolo, as appellant alleged, he could not have kept on holding the bolo. He would have dropped it instantly, as instinct would have made him do so. The infliction of more wounds after the first was therefore deliberate and not by mere accident. It is, likewise, hard to believe that a mere accidental hitting with the point of the small bolo, and therefore not with so much force, would inflict a wound that is so fatal as that sustained on the chest. That the wounding was with intent to kill is reflected by appellant's statement that he killed the old woman because she had allegedly promised to kill him by "barang" or by witchcraft, which he gave upon surrendering to Pat. Demetrio Basilad at the Municipal Building. It was just natural for appellant to explain to the police why he was surrendering. For Pat. Basilad to testify on what appellant said on this score is thus perfectly proper, and full credence must be

accorded to him, being obviously an impartial witness. It is not a matter of whether the statement is a part of the res gestae to be admissible. Appellant of course denies having made the admission, but in the light of the other evidence of the prosecution, his denial is not convincing. As demonstrated earlier, his accident theory of the killing merits not much credibility from the mere fact that more than one wound was inflicted which could not have resulted from just one blow. Repeated blows easily negates any claim of wounding by mere accident. The fact that he was not allowed to enter the house of Juanita Busalla, daughter of the deceased, when he went there directly from the old woman's house, would show that he appeared, by his behavior or words, that he was dangerously in an angry mood, which is indicative of being a deliberate killer rather than a sorrowful and harmless penitent for a killing he has committed only by accident. As Juanita also testified, when appellant was already in jail, he told her that he killed her mother because of witchcraft, corroborating Pat. Basilad's testimony. It would, therefore, be of no avail for appellant to contend that the court a quo erred in admitting appellant's statement he made upon surrendering that he killed the deceased because the latter intended to kill him by witchcraft as part of the res gestae. The testimony of both Pat. Basilad and Juanita Busalla on the inculpatory statement of appellant is legally admissible not because the statement is part of the res gestae, but for said witnesses having heard appellant made the statement on their own perception. It is hard to see why the aforementioned witnesses testified on the admission of appellant the way they did unless they were prompted only by the truth. If appellant had surrendered with an admission of killing the old woman by accident, as he must have tried to impress upon the authorities if such was the truth, Pat. Basilad had no reason to give the killing the graver character than what it really was. As far as he is concerned, he had no more problem relative to the solution of the crime, which is the usual cause for police twisting the truth or other form of excesses when conducting investigations the desire to solve a crime by all means. That Dr. Silverio Gaviola who issued the post-mortem examination report failed to testify thereon because he died before he could be called to the stand, so unduly stressed to show the quality of his report as hearsay, does not affect the sufficiency of the evidence against appellant to entitle him to the acceptance of his claim of accident to exempt him from criminal liability. As already shown, such evidence is more than adequate to make the mind rest at ease on appellant's guilt as charged. The autopsy report, if not admitted as such, is part of the testimony of Pat. Sarabosing. He testified on the number and location of the wounds, and his testimony, being that of a peace officer with basic knowledge in medico-legal medicine, having taken a course therein (p. 26, tsn, May 21, 1978) may well serve the purpose of the autopsy report, if the report is not itself admissible as independent evidence, as appellant would insist. Appellant has also invoked the provision of Article IV, Section 20 of the Constitution in trying to block the admission of his declaration to Pat. Basilad that he killed Ofremia Atup because of her alleged vow to kill him by witchcraft, contending that the safeguards therefor have not been made available to him. The cited provision reads: Section 20. No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel and to be informed of such right No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against himself. Any confession obtained in violation of this section shall be inadmissible in evidence.

The applicability of the foregoing provision does not seem to contemplate cases like the print where no written confession was sought to be presented in evidence as a result of formal custodial investigation. What was testified to is only what appellant told the police why he is surrendering to them. It is but natural for one who surrenders to the police to give reason or explanation for his act of surrendering. It can hardly be said that under such circumstance, the surrendered is already "under investigation within the meaning of the constitutional provision. As the Solicitor General correctly observes on the circumstances of this case: "If however, he voluntarily admits the killing and it was precisely because he surrendered to admit the killing, the constitutional safeguards to be informed of his rights to silence and to counsel may not be invoked." In any case, as previously pointed out, another witness, Juanita Busalla, who is not a policeman also testified to appellant telling her when he was already in jail, that he killed Ofremia Atup because of her promise to kill him by means of witchcraft, the same declaration he supposedly made to Pat. Basilad, upon surrendering after the killing. The constitutional safeguard invoked can have no application to Juanita's testimony on what appellant told her not in the course of a police investigation. At any rate, even without the admission, the accident version of appellant is inherently incredible. As already stated, that he was not allowed by Ofremia's daughter and husband to enter their house when he went there direct from the old woman's house is a strong proof that he did not exhibit the harmless mood of a repentant killer as he should visibly appear to them if the killing was only accidental. On the contrary, he must have appeared so angry, displaying unmistakable intent to kill then after killing their mother, as the daughter Juanita Busalla, so testified. (pp. 30-39, tsn, Feb. 1, 1978). Verily, the issue is one of credibility. The lower court gave more of it to the testimony of the prosecution witnesses. We find no reason to disturb the lower court's appreciation of the relative credibility of the opposing witnesses. 2 Moreover, appellant having admitted the killing, the burden of proving the exempting circumstance he has invoked in his defense calls for clear and convincing evidence, as is required of similar defenses as that of self-defense. 3 This, he failed dismally to fulfill. WHEREFORE, the appealed decision is affirmed, with costs. SO ORDERED.

PEOPLE vs BAUSING, G.R. No. L-64965

BIDIN, J.:p This is an appeal from the decision * of the Regional Trial Court of Dapa, Surigao Del Norte, Branch XXXI, convicting appellants of the crime of murder, the decretal portion of which reads: WHEREFORE, viewed in the light of the foregoing, the Court finds the accused JOVEN BAUSING and MANUEL LOROSO guilty beyond reasonable doubt of the crime of MURDER qualified with treachery. There being no aggravating circumstance and mitigating circumstance, the Court hereby sentences JOVEN BAUSING and MANUEL LOROSO, to suffer the penalty of RECLUSION PERPETUA; to indemnify the heirs of the late ALEXANDER MANTILLA, jointly and severally, the amount of Twelve Thousand Pesos (P12,000.00); without subsidiary

imprisonment in case of insolvency; with the accessory penalties imposed by law and to pay the costs. (Rollo, p. 66) The facts, as summarized by the trial court, are as follows: . . . last August 3, 1978, approximately 9:15 o'clock in the evening, the victim, Alexander Mantilla, as incumbent Barangay Councilman and a Ronda Member of Barangay Consuelo, General Luna, Surigao Del Norte, while performing his official duties, was at the billiard hall of accused Manuel Loroso, together with the following persons, namely: Ruirino Crisologo, Domingo Teraytay, Estanislao Sunico, Aureliano Pacanor, Segundiano Pacanor, Edisimo Minglana, Barangay Captain Rufo Bunga, Pepito Tokong, Juanito Tokong, Manuel Loroso, Joven Bausing and Valentin Bausing. There were two (2) billiard tables and on them the following persons were playing: Domingo Teraytay, Barangay Captain Rufo Bunga, Juanito Tokong and Estanislao Sunico. The billiard game was first interrupted when Domingo Teraytay and Manuel Loroso were grappling for the knife which was protruding at the back pocket of the former, the knife was ultimately taken with the assistance of Estanislao Sunico and Aureliano Pacanor. Manuel Loroso, as owner of the billiard hall, confiscated the knife in order to prevent any trouble therein. Thereafter, Valentin Bausing, sometimes called "Rodolfo", clattered the billiard balls which caused Alexander Mantilla to admonish him to stop his act as he was not concerned with the game. Without any word, accused Manuel Loroso who came from the back of Mantilla, held the hands of the latter while being raised when all of a sudden, Joven Bausing appeared in the scene, with unsheathed sharp pointed bolo (Exh. "A") which was hidden inside the umbrella (Exh. "B") thrust many times said bolo upon Mantilla. Mantilla was released only by Loroso, after the victim was staggering unconsciously who later fell dead outside the billiard hall. ( Rollo, pp. 29-31) Appellants Bausing and Loroso were then charged with murder with assault upon an agent of person in authority. Both pleaded not guilty to the charge and after trial, the trial court rendered the judgment which appellants now seek to be reversed. During the trial, the prosecution established the guilt of appellants through the testimonies of Crisologo, Tokong, Teraytay and Minglana, among others, who were all present at the billiard hall when the incident happened. Crisologo testified that in the billiard hall, he saw Manuel Loroso and Domingo Teraytay grappling with each other for possession of a knife. The others present in the hall tried to pacify the two and the knife was taken by Estanislao Sunico. He also testified that he saw Valentin Bausing making trouble inside the billiard hall and was advised by the deceased Alexander Mantilla to stop as he had nothing to do with the game. At this point, Manuel Loroso approached the deceased from behind and took hold of the latter's hands, whereupon Joven Bausing ran towards them repeatedly thrusting a sharp pointed bolo at the victim (Alexander Mantilla) who kicked his assailant in a futile attempt to defend himself. The victim was hit below his left breast and right breast. Weakened and already down, appellant Joven Bausing

again stabbed the helpless victim on the mouth after which appellants Bausing and Loroso walked away (TSN, March 8, 1979, pp. 3-11; Original Records, pp. 172-180). The above testimony of Crisologo was corroborated in all material points by the testimonies of (1) Pepito Tokong who was inside the billiard hall because of rain (TSN, April 25, 1979, pp. 3-12; Original Records, pp. 218-227); (2) Domingo Teraytay who was also playing billiards (TSN, June 28, 1979, pp. 3-16; Original Records, pp. 250-263); and (3) Edisimo Minglana who was also in the hall watching the billiard game (TSN, November 13, 1979, pp. 14-17; Original Records, pp. 232-245). All of the above witnesses gave exactly the same version of the gruesome and merciless killing of Alexander Mantilla to the effect that the deceased was only trying to stop Valentin Bausing from making trouble when Manuel Loroso approached the deceased from behind, held both of the latter's hands, while the accused Joven Bausing, father of Valentin, suddenly attacked Mantilla and stabbed the latter several times. As the victim staggered towards the door, he fell flat on his face. Not satisfied with the injuries already inflicted by him, accused Bausing held the head of the fallen victim and stabbed the latter on the armpit, hacked him at the left arm biceps, forearm and mouth. In this appeal, appellants raise the following errors: 1. THAT THE LOWER COURT ERRED IN HOLDING THAT APPELLANT MANUEL LOROSO HELD ALEXANDER MANTILLA FROM THE BACK WHILE THE LATTER WAS BEING STABBED SEVERAL TIMES BY APPELLANT JOVEN BAUSING, THAT APPELLANT MANUEL LOROSO AND JOVEN BAUSING CONSPIRED IN KILLING ALEXANDER MANTILLA AND THAT APPELLANT MANUEL LOROSO'S DEFENSE IS ALIBI, THUS, ERRED IN CONVICTING MANUEL LOROSO OF MURDER; 2. THAT THE LOWER COURT ERRED IN HOLDING THAT EDERESA TOKONG'S TESTIMONY HAS BEEN UNREBUTTED AND THEREFORE FATAL TO THE DEFENSE; 3. THAT THE LOWER COURT ERRED IN NOT BELIEVING APPELLANT JOVEN BAUSING'S DEFENSE THAT HE WAS ACTING IN DEFENSE OF HIS SON, RODULFO BAUSING, AND IN HOLDING THAT HIS DEFENSE LACKS THE QUANTUM OF PROOF REQUIRED BY LAW; 4. THAT THE LOWER COURT ERRED IN HOLDING THAT THE CRIME COMMITTED WAS QUALIFIED WITH TREACHERY; 5. ASSUMING ARGUENDO THAT APPELLANT JOVEN BAUSING HAS TO BE CONVICTED, THE LOWER COURT ERRED IN CONVICTING HIM OF MURDER AND NOT ONLY OF HOMICIDE AND IN NOT APPRECIATING THE MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER IN HIS FAVOR. (Appellant's Brief, pp. 1-2; Rollo, p. 85 c-d) Appellants' assignment of errors being interrelated, the same shall be addressed jointly. Joven Bausing admitted the killing of the deceased but invokes the justifying circumstance of defense of a relative in a bid to escape criminal liability. After a careful examination of the verdict rendered by the trial court, We find no compelling reason to reverse the judgment of conviction. In order that the justifying circumstance of defense of a relative may be properly invoked, the following requisites must concur: (1) unlawful aggression; (2) reasonable necessity of the

means employed to prevent or repel it; and (3) in case the provocation was given by the person attacked, that the one making the defense had no part therein (Art. 11, par. 1 & 2, Revised Penal Code). The first requisite is indispensable. There can be no self-defense unless it is proven that there had been unlawful aggression on the part of the person injured or killed by the assailant. If there is no unlawful aggression, there is nothing to prevent or repel (People vs. Malazzab, 160 SCRA 123 [1988]; Ortega v. Sandiganbayan [1990]). In addition, for unlawful aggression to be appreciated, there must be an actual, sudden, unexpected attack or imminent danger thereof, and not merely a threatening or intimidating attitude (People v. Pasco, Jr., supra; People vs. Rey, 172 SCRA 149 [1989] and the accused must present Proof of positively strong act of real aggression (Pacificar v. Court of Appeals 125 SCRA 716 [1983]; People v. Aquiatan, 123 SCRA 501 [1983]; People v. Aquino, 124 SCRA 835 [1983]). Unlawful aggression must be such as to put in real peril the life or personal safety of the person defending himself or of a relative sought to be defended and not an imagined threat. In the case at bar, appellant Bausing's claim of unlawful aggression committed by the deceased has not been sufficiently established to warrant the appreciation of defense of a relative as a justifying circumstance. All four prosecution witnesses who were eyewitnesses to the killing of Mantilla testified categorically that no unlawful aggression was committed by the deceased. The victim merely admonished Valentin Bausing, son of appellant Joven, to stop meddling with the game going on. Appellant's claim of defense of his son cannot prevail over the positive testimonies of the eyewitnesses pointing beyond reasonable doubt that he (appellant) was the aggressor who treacherously assaulted the deceased. More importantly, appellant Bausing already admitted the killing of Mantilla. Having made the admission, it is thus incumbent upon the accused to prove the justifying circumstance to the satisfaction of the court in order to be relieved of any criminal liability. In such instances, the accused must proffer strong, clear and convincing evidence of self-defense and depend not on the infirmity of the prosecution, for even if the latter was weak, the plea of self-defense cannot prosper especially so where the accused himself has admitted the killing, as in the case at bar (People v. Bayocot, 174 SCRA 285 [1989]; People v. Masangkay, 157 SCRA 320 [1988]; People v. Abagon, 161 SCRA 255 [1988]; People v. Tesorero, 71 SCRA 579 [1976]; People v. Llamera, 51 SCRA 48 [1973]; People v. Bauden, 77 Phil. 105 [1946]; People v. Ansoyon, 75 Phil. 772 [1946]). Appellant Loroso next contends that the trial court erred in holding that Ederesa Tokong's testimony has been unrebutted and therefore fatal to the defense. Loroso argues that he has in fact testified as a sur-rebuttal witness and rebutted the testimony of Tokong point by point. The argument is devoid of merit and need not be discussed at length. What the trial court meant when it said that the testimony of Tokong was unrebutted is the fact that appellant Lorozo failed to rebut the testimony of Tokong that after the killing of Mantilla, said appellant slept in their (spouses Tokong's) house with bloodstains on his shirt and pair of trousers and that the blanket and beddings used by him were also stained by blood. The trial court's pronouncement did not mean that no sur-rebuttal witness was ever presented by the defense. The nature, character, location and number of the wounds suffered by the deceased belie any supposition that the deceased was the unlawful aggressor (People v. Marciales, 166 SCRA 436 [1988]). As reflected in the autopsy report and the testimony of Dr. Prospero Tayco, the deceased suffered seventeen (17) incised wounds, including the "through and through" incised wound of the heart, 21 inches long with entrance at the apex of the heart which is the primary cause of death and massive blood loss secondary thereto, aside from the numerous abrasions and avulsions (Autopsy Report, Exh. 15, Original Records). In contrast, both Valentin and Joven

Bausing suffered no injury. The infliction of the 17 wounds on the deceased could only lead to the conclusion that Mantilla was the victim of aggression and not the unlawful aggressor. On the other hand, appellant Loroso faults the trial court for classifying his denial of participation in the killing of the deceased as one of alibi. Appellant claims that he was busy pumping air into his petromax lamp lighting the billiard hall at the time the incident occurred and ran away as soon as he saw blood after the second thrust by appellant Bausing. Appellant's defense would therefore appear as a simple denial of his participation in the commission of the offense. Appellant's unsubstantiated disclaimer of participation cannot be given any credence. Selfserving as it is, his denial of participation in the commission of the crime cannot prevail over the forthright and positive testimonies by the prosecution witnesses as they uniformly pointed to him as having held both hands of Mantilla from behind and raised them upwards while Joven Bausing suddenly appeared on one side of Mantilla, unsheathed the bolo inside the umbrella he (Bausing) was carrying and stabbed the victim continuously. Loroso released his hold of Mantilla only when the latter was already on the verge of death as a result of the stab wounds inflicted by appellant Bausing. The weak denials of appellant cannot prevail over the clear and positive testimonies of the eyewitnesses regarding his participation in the killing of the deceased. (People v. Bocatcat, Sr., 188 SCRA 175 [1990]; People v. Delavin, 148 SCRA 25 [1987]; People v. Alcid, 135 SCRA 280 [1985]; People v. Tuscano, 137 SCRA 203 [1985]) for it is a settled rule that greater weight is given to the positive identification of the accused by the prosecution witnesses than to the accused's plain denial of participation in the commission of the crime (People vs. de Mesa, 188 SCRA 48 [1990]; citing People v. Canada, 144 SCRA 121 [1986]; People vs. Mostoles, Jr., 124 SCRA 906 [1983]). That the killing of Alexander Mantilla is murder qualified by treachery is borne out by the records. The victim was not only unarmed but was also deprived of every means to defend himself from the treacherous attack. Loroso held both hands of the deceased victim while Joven Bausing suddenly appeared and started stabbing the victim. In People v. Mahusay (138 SCRA 452 [1985]), this Court ruled that there is treachery where the victim was held tightly by one of the accused before his co-accused stabbed him, as in the case at bar. The appellants executed the crime in a manner that tended directly and specially to ensure its execution without risk to themselves arising from the defense which the deceased might have made (Art. 14, par. 16, Revised Penal Code; People v. Pacabes, 137 SCRA 158 [1985]). The presence of conspiracy was inferred from the concerted acts of both the accused. They both approached the victim almost simultaneously. As one held the victim's hands tightly from behind and raised them upward, the other delivered the fatal stabs which caused Mantilla's death. The manner by which Loroso held the victim's hands from behind which clearly prevented the latter from defending himself and without which act the crime would not have been accomplished, makes appellant Loroso a conspirator and a principal by indispensable cooperation (People v. Martinez, 127 SCRA 260 [1985]). Where the accused by their acts aimed at the same object, one performing one part and another performing another part so as to complete it, with a view to the attainment of the same object, and their acts were concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments, the lower court was justified in concluding that the defendants were engaged in conspiracy wherein the act of one is the act of all (People v. Manlolo, 169 SCRA 394 [1989]). Conspiracy can be inferred from and proven by the acts of the accused themselves when said acts point to a joint purpose and design, concerted action, and community of interests (People v. Monadi, 97 Phil. 575 [1955]). The mitigating circumstance of voluntary surrender invoked by Joven Bausing deserves scant consideration. While appellant Bausing claims to have voluntarily surrendered to Pat. Arturo

Esparrago of Surigao del Norte Police Station on the night of the incident, records of the case show that appellants were in fact arrested on August 28, 1978 as per return made by Station Commander Saturnino Plaza of General Luna, Surigao del Norte Police Force (Original Records, p. 7). The mitigating circumstance of voluntary surrender cannot be appreciated considering that the return of the warrant of arrest showed that appellant was in fact arrested. WHEREFORE, the appealed judgment is hereby AFFIRMED with the modification as to the indemnification which is hereby increased to P50,000.00. SO ORDERED.