Example Case on Incomplete Defense: (Art.

13)
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 103613 February 23, 2001
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS and ELADIO C. TANGAN, respondents.
x - - - - - - - - - - - - - - - - - - x
G.R. No. 105830 February 23, 2001
ELADIO C. TANGAN, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.
YNARES-SANTIAGO, J.:
At around 11:30 p.m. of December 1, 1984, Navy Captain Eladio C. Tangan was driving alone
on Roxas Boulevard heading south. He had just come from Buendia Avenue on an
intelligence operation. At the same time, Generoso Miranda, a 29-year old optometrist, was
driving his car in the same direction along Roxas Boulevard with his uncle, Manuel Miranda,
after coming from the Ramada Hotel. Generoso was moving ahead of Tangan. Suddenly,
firecrackers were thrown in Generoso's way, causing him to swerve to the right and cut
Tangan's path. Tangan blew his horn several times. Generoso, slowed down to let Tangan
pass. Tangan accelerated and overtook Generoso, but when he got in front, Tangan reduced
speed. Generoso tried four or five times to overtake on the right lane but Tangan kept
blocking his lane. As he approached Airport Road, Tangan slowed down to make a U-tum.
Generoso passed him, pulled over and got out of the car with his uncle. Tangan also stopped
his car and got out. As the Mirandas got near Tangan's car, Generoso loudly retorted,
" Putang ina mo, bakit mo ginigitgit ang sasakyan ko?" Generoso and Tangan then exchanged
expletives. Tangari pointed his hand to Generoso and the latter slapped it, saying, "Huwag
mo akong dinuduro! Sino ka ba, ano ba ang pinagmamalaki mo?" Tangan countered, "Ikaw,
ano ang gusto mo?" With this, Tangan went to his car and got his .38 caliber handgun on the
front seat. The subsequent events per account of the parties' respective witnesses were
conflicting:
According to the prosecution witnesses, particularly, Mary Ann Borromeo, Rosalia
Cruz and Manuel Miranda, the accused pointed his gun at Generoso Miranda and
when Manuel Miranda tried to intervene, the accused pointed his gun at Manuel
Miranda, and after that the accused pointed again the gun to Generoso Miranda, the
accused shot Generoso Miranda at a distance of about a meter but because the arm
of the accused was extended, the muzzle of the gun reached to about more or less
one foot away from the body of Generoso Miranda. The shot hit the stomach of
Generoso Miranda causing the latter to fall and while still conscious, Generoso
Miranda told Manuel Miranda, his uncle, to get the gun. Manuel Miranda grappled
for the possession of the gun and during their grappling, Rosalia Cruz intervened
and took hold of the gun and after Rosalia Cruz has taken hold of the gun, a man
wearing a red T-shirt took the gun from her. The man in T-shirt was chased by
Manuel Miranda who was able to get the gun where the man in red T-shirt placed it.
On the other hand, the defense, particularly the accused and his witness by the name
of Nelson Pante claimed that after the gun was taken by the accused from inside his
car, the Mirandas started to grapple for possession of the gun and during the
grappling, and while the two Mirandas were trying to wrest away the gun from the
accused, they fell down at the back of the car of the accused. According to the
accused, he lost the possession of the gun after falling at the back of his car and as
soon as they hit the ground, the gun fell, and it exploded hitting Generoso Miranda.
1

After the gun went off, Tangan ran away. Meanwhile, Generoso lay on the ground bloodied.
His uncle, Manuel, looked for the gun and ran after Tangan, joining the mob that had already
pursued him. Tangan found a policeman who allowed him to enter his patrol car. Manuel
arrived and told the policeman that Tangan had just shot his nephew. Then he went back to
where Generoso lay and there found two ladies, later identified as Mary Ann Borromeo and
Rosalina Cruz, helping his nephew board a taxi. Manuel suggested that Generoso be brought
to the hospital in his car. He was rushed to the Philippine General Hospital but he expired on
the way.
Tangan was charged with the crime of murder with the use of an unlicensed firearm.
2
After a
reinvestigation, however, the information was amended to homicide with the use of a
licensed firearm,
3
and he was separately charged with illegal possession of unlicensed
firearm.
4
On arraignment, Tangan entered a plea of not guilty in the homicide case, but
moved to quash the information for illegal possession of unlicensed firearm on various
grounds. The motion to quash was denied, whereupon he filed a petition for certiorari with
this Court.
5
On November 5, 1987, said petition was dismissed and the joint trial of the two
cases was ordered.
6

During the trial, the prosecution and the defense stipulated on the following: that the
amount of P126,000.00 was incurred for the funeral and burial expenses of the victim;
7
that
P74,625.00 was incurred for attorneys fees; and that the heirs of Generoso suffered moral
damages, the amount of which is left for the courts to determine. After trial, the lower court
acquitted Tangan of illegal possession of firearm, but convicted him of homicide. The
privileged mitigating circumstance of incomplete self-defense and the ordinary mitigating
circumstances of sufficient provocation on the part of the offended party and of passion and
obfuscation were appreciated in his favor; consequently, the trial court ordered him to suffer
an indeterminate penalty of two (2) months of arresto mayor, as minimum, to two (2) years
and four (4) months of prision correccional, as maximum, and to indemnify the heirs of the
victim.
8
Tangan was released from detention after the promulgation of judgment and was
allowed bail in the homicide case. 1wphi1.nt
Private complainants, the heirs of Generoso Miranda, filed a petition for review with this
Court, docketed as G.R. No. 102677, challenging the civil aspect of the court a quo's decision,
but the same was dismissed for being premature. On the other hand, Tangan appealed to the
Court of Appeals, which affirmed the judgment of the trial court but increased the award of
civil indemnity to P50,000.00.
10
His subsequent motion for reconsideration and a motion to
cite the Solicitor General in contempt were denied by the Court of Appeals.
11

The office of the Solicitor General, on behalf of the prosecution, alleging grave abuse of
discretion, filed a petition for certiorari under Rule 65, docketed as G.R. No.103613, naming
as respondents the Court of Appeals and Tangan, where it prayed that the appellate court's
judgment be modified by convicting accused-appellant of homicide without appreciating in
his favor any mitigating circumstance.
12
Subsequently, the Office of the Solicitor General, this
time acting for public respondent Court of Appeals, filed a motion for extension to file
comment to its own petition for certiorari.
13
Discovering its glaring error, the Office of the
Solicitor General later withdrew its motion for extension of time.
14
Tangan filed a Reply
asking that the case be submitted for decision.
15

Meanwhile, Tangan filed a separate petition for review under Rule 45, docketed as G.R. No.
105830.
16
Since the petition for certiorari filed by the Solicitor General remained unresolved,
the two cases were consolidated.
17
The Office of the Solicitor General filed a manifestation in
G.R. No. 105830, asking that it be ex6used from filing a comment to Tangan's petition for
review, in order to avoid taking contradictory positions.
18

In the recent case of People v. Velasco and Galvez,
19
we held that the prosecution cannot avail
of the remedies of special civil action on certiorari, petition for review on certiorari, or
appeal in criminal cases. Previous to that, we categorically ruled that the writ of certiorari
cannot be used by the State in a criminal case to correct a lower court's factual findings or
evaluation of the evidence.
20

Rule 117, Section 7, of the Revised Rules of Criminal Procedure, is clear:
Former conviction or acquittal; double jeopardy. - When an accused has been
convicted or acquitted, or the case against him dismissed or otherwise terminated
without his express consent by a court of competent jurisdiction, upon a valid
complaint or information or other fom1al charge sufficient in form and substance to
sustain a conviction and after the accused had pleaded to the charge, the conviction
or acquittal of the accused or the dismissal of the case shall be a bar to another
prosecution for the offense charged, or for any attempt to commit the same or
frustration thereof, or for any offense which necessarily includes or is necessarily
included in the offense charged in the former complaint or information.
However, the conviction of the accused shall not be a bar to another prosecution for
an offense which, necessarily includes the offense charged in the former complaint
or information under any of the following instances:
(a) the graver offense developed due to supervening facts arising from the same act
or omission constituting the former charge;
(b) the facts constituting the graver charge became known or were discovered only
after a pleas was entered in the former complaint or information; or
(c) the plea of guilty to the lesser offense was made without the consent of the fiscal
and of the offended party, except as provided in section 1(f) of Rule 116.
In any of the foregoing cases, where the accused satisfies or serves in whole or in
part the judgment, he shall be credited with the same in the event of conviction for
the graver offense.
Based on the foregoing, the Solicitor General's petition for certiorari under Rule 65, praying
that no mitigating circumstance be appreciated in favor of accused-appellant and that the
penalty imposed on him be correspondingly increased, constitutes a violation of Tangan's
right against double jeopardy and should be dismissed.
We now come to the petition for review filed by Tangan. It is noteworthy that during the
trial, petitioner Tangan did not invoke self-defense but claimed that Generoso was
accidentally shot. As such, the burden of proving self-defense,
21
which normally would have
belonged to Tangan, did not come into play. Although Tangan must prove his defense of
accidental firing by clear and convincing evidence,
22
the burden of proving the commission
of the crime remained in the prosecution.
Both the trial court and the Court of Appeals appreciated in favor of Tangan the privileged
mitigating circumstance of incomplete self-defense under Article 13 (1), in relation to Article
11 (1), of the Revised Penal Code, to wit:
ARTICLE 11. Justifying circumstances. - The following do not incur any criminal
liability:
1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur:
First. Unlawful aggression.
Second. Reasonable necessity of the means employed to prevent or repel it.
Third. Lack of sufficient provocation on the part of the person defending
himself.
xxx xxx xxx
ARTICLE 13. Mitigating Circumstances. - The following are mitigating
circumstances:
1. Those mentioned in the preceding Chapter, when all the requisites necessary to
justify the act or to exempt from criminal liability in the respective cases are not
attendant.
Incomplete self-defense is not considered as a justifying act, but merely a mitigating
circumstance; hence, the burden of proving the crime charged in the information is not
shifted to the accused.
23
In order that it may be successfully appreciated, however, it is
necessary that a majority of the requirements of self-defense be present, particularly the
requisite of unlawful aggression on the part of the victim.
24
Unlawful aggression by itself or
in combination with either of the other two requisite suffices to establish incomplete self-
defense. Absent the unlawful aggression, there can never be self-defense, complete or
incomplete,
25
because if there is nothing to prevent or repel, the other two requisites of
defense will have no basis.
26

There is no question that the bullet which hit the victim was fired from the caliber. 38, which
was issued to Tangan by the Philippine Navy. The cause of death was severe hemorrhage
secondary to gunshot wound of the abdomen, caused by the bullet fired from a gun of the
said caliber. The prosecution claimed that Tangan shot the victim point-blank in the stomach
at a distance of about one foot. On the other hand, Tangan alleged that when he grappled
with Generoso and Manuel Miranda for possession of the gun, it fell to the ground and
accidentally fired, hitting the victim.
When the testimonies of witnesses in open court are conflicting in substantial points, the
calibration of the records on appeal becomes difficult. It is the word of one party against the
word of the other. The reviewing tribunal relies on the cold and mute pages of the records,
unlike the trial court which had the unique opportunity of observing first-hand that elusive
and incommunicable evidence of the witness' deportment on the stand while testifying.
27
The
trial court's assessments of the credibility of witnesses is accorded great weight and respect
on appeal and is binding on this Court,
28
particularly when it has not been adequately
demonstrated that significant facts and circumstances were shown to have been overlooked
or disregarded by the court below which, if considered, might affect the outcome
hereof.
29
The rationale for this has been adequately explained in that,
The trial court has the advantage of observing the witnesses through the different
indicators of truthfulness or falsehood, such as the angry flush of an insisted
assertion or the sudden pallor of a discovered lie or the tremulous mutter of a
reluctant answer or the forthright tone of a ready reply; or the furtive glance, the
blush of conscious shame, the hesitation, the sincere or the flippant or sneering
tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or
full realization of the solemnity of an oath, and carriage and mien.
30

Equally, when a person fabricates a story, he usually adopts a simple account because a
complex one might lead to entanglement from which he may find it hard to extricate himself.
Along the same line, the experience of the courts and the general observations of humanity
teach us that the natural limitations of our inventive faculties are such that if a witness
delivers in court a false narrative containing numerous details, he is almost certain to fall
into fatal inconsistencies to make statements which can be readily refuted, or to expose in
his demeanor the falsity of his message.
31
Aside from this, it is not also unusual that the
witness may have been coached before he is called to the stand to testify.
Somewhere along the painstaking review of the evidence on record, one version rings the
semblance of truth, not necessarily because it is the absolute truth, but simply because it is
the best approximation of the truth based on the declarations of witnesses as corroborated
by material evidence. Perforce, the other version must be rejected. Truth and falsehood, it
has been well said, are not always opposed to each other like black and white, but
oftentimes, and by design, are made to resemble each other so as to be hardly
distinguishable.
32
Thus, after analyzing the conflicting testimonies of the witnesses, the trial
court found that:
When the accused took the gun from his car and when he tried to get out of the car
and the two Mirandas saw the accused already holding the gun, they started to
grapple for the possession of the gun that it went off hitting Generoso Miranda at the
stomach. The court believes that contrary to the testimony of the accused, he never
lost possession of the gun for if he did and when the gun fell to the ground, it will not
first explode or if it did, somebody is not holding the same, the trajectory of the
bullet would not be perpendicular or horizontal.
33

The Court of Appeals agreed -
The finding of the lower court that Generoso Miranda III was shot while the accused
and the Mirandas were grappling for the possession of the gun immediately after
the accused had taken his gun from inside his car and before the three allegedly fell
to the ground behind the car of the accused is borne out by the record. The court
also agrees with the court below that it was the accused-appellant who shot and
killed Generoso Miranda III. If the accused-appellant did not shoot Generoso III
during the scuffle, he would have claimed accidental killing by alleging that his gun
exploded during the scuffle instead of falsely testifying that he and the Mirandas fell
to the ground behind his car and the gun exploded in the possession of Manuel
Miranda. The theory of the prosecution that the shooting took place while the three
were grappling for the possession of the gun beside the car of appellant is
completely in harmony with the findings and testimony of Dr. Ibarrola regarding the
relative position of the three and the precarious nearness of the victim when
accused-appellant pulled the trigger of his gun. Dr. Ibarrola explained that the gun
was about two (2) inches from the entrance wound and that its position was almost
perpendicular when it was fired. It was in fact the closeness of the Mirandas vis--
vis appellant during the scuffle for the gun that the accused-appellant was
compelled to pull the trigger in answer to the instinct of self-preservation.
34

No convincing reason appears for the Court to depart from these factual findings, the same
being ably supported by the evidence on record. In violent deaths caused by gunshot
wounds, the medical report or the autopsy on the cadaver of the victim must as much as
possible narrate the observations on the wounds examined. It is material in determining the
truthfulness of the events narrated by the witnesses presented. It is not enough that the
witness looks credible and assumes that he indeed witnessed the criminal act. His narration
must be substantiated by the physical evidence available to the court.
The medical examiner testified that the distance between the muzzle of the gun and the
target was about 2 inches but definitely not more than 3 inches. Based on the point of exit
and the trajectory transit of the wound, the victim and the alleged assailant were facing each
other when the shot was made and the position of the gun was almost perpendicular when
fired.
35
These findings disprove Tangan's claim of accidental shooting. A revolver is not
prone to accidental firing because of the nature of its mechanism, unless it was already first
cocked and pressure was exerted on the trigger. If it were uncocked, then considerable
pressure had to be applied on the trigger to fire the revolver.
36

Having established that the shooting was not accidental, the next issue to be resolved is
whether Tangan acted in incomplete self-defense. The element of unlawful aggression in
self-defense must not come from the person defending himself but from the victim.
A mere threatening or intimidating attitude is not sufficient.
37
Likewise, the exchange of
insulting words and invectives between Tangan and Generoso Miranda, no matter how
objectionable, could not be considered as unlawful aggression, except when coupled with
physical assault.
38
There being no lawful aggression on the part of either antagonists, the
claim of incomplete self-defense falls. Tangan undoubtedly had possession of the gun, but
the Mirandas tried to wrestle the gun from him. It may be said that the former had no
intention of killing the victim but simply to retain possession of his gun. However, the fact
that the victim subsequently died as a result of the gunshot wound, though the shooter may
not have the intention to kill, does not absolve him from culpability. Having caused the fatal
wound, Tangan is responsible for all the consequences of his felonious act. He brought out
the gun, wrestled with the Mirandas but anticipating that the gun may be taken from him, he
fired and fled.
The third requisite of lack of sufficient provocation on the part of the person defending
himself is not supported by evidence. By repeatedly blocking the path of the Mirandas for
almost five times, Tangan was in effect the one who provoked the former. The repeated
blowing of horns, assuming it was done by Generoso, may be irritating to an impatient driver
but it certainly could not be considered as creating so powerful an inducement as to incite
provocation for the other party to act violently.
The appreciation of the ordinary mitigating circumstances of sufficient provocation and
passion and obfuscation under Article 13, paragraphs 4 and 6,
39
have no factual basis.
Sufficient provocation as a requisite of incomplete self-defense is different from sufficient
provocation as a mitigating circumstance. As an element of self-defense, it pertains to its
absence on the part of the person defending himself; while as a mitigating circumstance, it
pertains to its presence on the part of the offended party. Besides, only one mitigating
circumstance can arise out of one and the same act.
40
Assuming for the sake of argument that
the blowing of horns, cutting of lanes or overtaking can be considered as acts of provocation,
the same were not sufficient. The word "sufficient" means adequate to excite a person to
commit a wrong and must accordingly be proportionate to its gravity.
41
Moreover,
Generoso's act of asking for an explanation from Tangan was not sufficient provocation for
him to claim that he was provoked to kill or injure Generoso.
42

For the mitigating circumstance of passion and obfuscation to be appreciated, it is required
that (1) there be an act, both unlawful and sufficient to produce such a condition of mind; and
(2) said act which produced the obfuscation was not far removed from the commission of
the crime by a considerable length of time, during which the perpetrator might recover his
normal equanimity.
43

In the case at bar, Tangan could not have possibly acted upon an impulse for there was no
sudden and unexpected occurrence which wuld have created such condition in his mind to
shoot the victim. Assuming that his path was suddenly blocked by Generoso Miranda due to
the firecrackers, it can no longer be treated as a startling occurrence, precisely because he
had already passed them and was already the one blocking their path. Tangan's acts were
done in the spirit of revenge and lawlessness, for which no mitigating circumstance of
passion or obfuscation can arise.
With respect to the penalty, under the laws then existing, homicide was penalized
with reclusion temporal,
44
but if the homicide was committed with the use of an unlicensed
firearm, the penalty shall be death.
45
The death penalty, however, cannot be imposed on
Tangan because in the meantime, the 1987 Constitution proscribed the imposition of death
penalty; and although it was later restored in 1994, the retroactive application of the death
penalty is unfavorable to him. Previously the accused may be prosecuted for two crimes: (1)
homicide or murder under the Revised Penal Code and (2) illegal possession of firearm in its
aggravated form under P.D. 1866.
46

P.D. 1866 was amended by R.A. No. 8294,
47
which provides that if an unlicensed firearm is
used in murder or homicide, such use of unlicensed firearm shall be appreciated as an
aggravating circumstance and no longer considered as a separate offense,
48
which means
that only one offense shall be punished - murder or homicide. However, this law cannot
apply retroactively because it will result in the imposition on Tangan of the maximum period
of the penalty. Moreover, under Rule 110, Section 8 of the Revised Rules of Criminal
Procedure,
49
the aggravating circumstance must be alleged in the information. Being
favorable, this new rule can be given retroactive effect as they are applicable to pending
cases.
50
In any case, Tangan was acquitted of the illegal possession case.
Consequently, Tangan should be sentenced to suffer the penalty of reclusion
temporal. Pursuant to Article 64 of the Revised Penal Code, if the prescribed penalty is
composed of three periods, and there is neither mitigating nor aggravating circumstance, the
medium period shall be applied. Applying the Indeterminate Sentence law, the maximum of
the indeterminate penalty shall be that which, in view of the attendant circumstances, may
be properly imposed, which in this case is reclusion temporal medium with an imprisonment
range of from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years
and four (4) months. The minimum of the indeterminate sentence shall be the next lower
degree which is prision mayor with a range of from six (6) years and one (1) day to twelve
(12) years.
51
Hence, petitioner Tangan is sentenced to an indeterminate penalty of six (6)
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.
The death indemnity of P30,000.00 was correctly increased by the appellate court to
P50,000.00 in line with jurisprudence.
52
Moral damages are awarded in criminal cases
involving injuries if supported by evidence on record,
53
but the stipulation of the parties in
this case substitutes for the necessity of evidence in support thereof. Though not awarded
below, the victim's heirs are entitled to moral damages in the amount of P50,000.00 which is
considered reasonable considering the pain and anguish brought by his death.
54

WHEREFORE, the petition in G.R. No. 103613 is DISMISSED. The appealed decision subject
of G.R. No. 105830 is AFFIRMED with the following MODIFICATIONS:
(1) Tangan is sentenced to suffer an indeterminate penalty of six (6) 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.
(2) Tangan is ordered to pay the victim's heirs P50,000.00 as civil indemnity,
P42,000.00 as funeral and burial expenses, P5,000.00 as attorney's fees, and
P50,000.00 as moral damages.
SO ORDERED.
Davide, Jr., Puno, Kapunan, and Pardo, JJ., concur.

Footnotes:
1 Rollo in G.R. No. 105830, pp. 125-126.
2 Criminal Case No. T-17587; "That on or about the 1st day of December, 1984, in the Municipality of Paraaque, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named with intent to kill, with treachery and with the
use of an unlicensed firearm, did then and there willfully, unlawfully and feloniously attack, assault and shot Generoso Miranda
III, thereby inflicting upon his mortal gunshot wounds which directly caused his death, contrary to law." (Rollo in G.R. No. 105830,
p. 12).
3 The Amended Information reads: "That on or about the 1st day of December, 1984, in the Municipality of Paraaque, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named with intent to kill and armed with a gun,
did then and there willfully, unlawfully and feloniously attack, assault and shot with the said firearm (licensed) one Generoso
Miranda III, thereby hitting the latter in the abdomen and inflicting upon him mortal gunshot wounds which directly caused his
death, contrary to law." (Rollo in G.R. No. 105830, p. 12). 1wphi1.nt
4 Criminal Case No. T-19350: "That on or about the 1st day of December, 1984, in the Municipality of Paraaque, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court the above-named accused willfully and feloniously have in
possession, custody and control a Smith and Wesson Cal. 38 revolver with Serial No. C61898 (Yoke No. 7566) and five (5) live
ammunitions and one (1) empty shell without having procured the corresponding license or permit therefor and which the said
accused used in the commission of the crime of homicide against the person of Generoso Miranda III, contrary to law." (Rollo in
G.R. No. 105830, p. 13).
5 G.R. No. L-73963.
6 Tangan v. People, 155 SCRA 435 (1987).
7 Rollo, p. 105.
8 The dispositive portion of the Regional Tria1 Court Decision dated August 16, 1989 penned by Judge xxxx reads: "WHEREFORE,
premises considered in Criminal Case No. 178587 for the crime of Homicide defined and penalized under Article 249 of the
Revised Penal Code with the attendance of the privileged mitigating circumstances of incomplete self defense and ordinary
mitigating circumstances of sufficient provocation on the part of the offended party, and passion and obfuscation. For which
reason, the accused is hereby sentenced to suffer an indeterminate prison term of two (2) months of ARRESTO MAYOR, as
minimum to two (2) years and four (4) months of PRISION CORRECCIONAL, as maximum, with all the accessories of the law.
The preventive confinement of the accused shall be credited full time in his favor. The accused is further ordered to pay to the
heirs of Generoso Miranda namely, Ruby Miranda and Maria Miranda the following:
1. P30,000.00 for and as Indemnity for causing the death of Generoso Miranda:
2. P42,000.00 for funeral burial and other related expenses;
3. P5,000.00 as attorney's fees. Costs against the accused.
With respect to Criminal Case No.19350 for Illegal Possession of Firearms and ammunitions Used in the Commission of Homicide,
and finding the accused innocent to the charge against him, he is hereby ACQUITTED." (Rollo in G.R. No. 105830, p. 14).
9 Illegal possession of firearms and homicide with the use of unlicensed firearm are generally non-bailable offenses under the
1973 Constitution which was in force at the time of the commission of the crimes herein.
10 The dispositive portion of the CA Decision dated October 30, 1991, penned by Justice Cacdac, Jr. with Justices de Pano, Jr. and
Guingona, concurring consisting of 51-single space pages reads: "WHEREFORE, the decision appealed, from is hereby MODIFIED
with respect to the indemnity for the death of the victim Generoso Miranda in the amount of P50,000.00.
In all other respects, the appealed decision is affirmed. Costs against accused- appellant.
SO ORDERED." (Rollo in G.R. No. 105830, p. 131).
11 CA Resolution promulgated June 23, 1992 penned by Justice De Pano, Jr., with Justices Guingona and Garcia, concurring; Rollo
in G.R. No. 105830, pp. 133-136.
12 Petition for Certiorari filed by the Solicitor General (Francisco Chavez); Rollo in G.R. No. 103613, pp. 105-106.
13 The several motions for extension filed by the Office of the Solicitor General were signed by Solicitor General Ramon S.
Desuasido and the other by Acting Solicitor General Eduardo G. Montenegro.
14 Comment signed by Solicitor General Montenegro dated July 22, 1992; Rollo in G.R. No. 103613, p. 407.
15 Reply to Comment dated September 28, 1992 filed by private respondent in G.R. No. 103613, Rollo, p. 412.
16 Petition for Review, pp. 1-71; Rollo in G.R, No.105830, pp. 7-77.
17 Rejoinder in G.R. No.103613 of the new Solicitor General (Raul Goco) dated November 25, 1992, p. 3; Rollo, p. 422.
18 Manifestation and Motion by the Office of the Solicitor General (Raul Goco) dated December 2, 1992, p. 3; Rollo in G.R. No.
105830, p. 264.
19 G.R. No. 127444, September 13, 2000.
20 Soriano v. Hon. Angeles, G.R. No. 109920, August 31, 2000.
21 People v. Galapin, 293 SCRA 474 (1998); People v. Timblor, 285 SCRA 64 (1998).
22 People v. Arroyo, 111 SCRA 689 (1982); People v. Capitania, 49 Phil. 475.
23 Rule 119, Section 3. Order of trial. - The trial shall proceed in the following order:
xxx xxx xxx
(e) However, when the accused admits the act or omission charged in the complaint or information but interposes a
lawful defense, the order of trial may be modified accordingly.
24 See People v. Navarro, 7 Phil. 713: People v. Martin, 89 Phil. 18.
25 People v. Sazon, 189 SCRA 700 (1990); Ortega v. Sandiganbayan, 170 SCRA 38 (1989); People v. Picardal, 151 SCRA 170 (1987).
26 People v. Yuman, 61 Phil. 786.
27 People v. Mahinay, G.R. No. 122485, February 1, 1999.
28 People v. Mamalayan, 280 SCRA 748 (1997); People v. Jagolingay, 280 SCRA 768 (1997); Rabajao v. CA, 280 SCRA 290
(1997); Padilla v. CA, 269 SCRA 402 (1997).
29 People v. Dizon, G.R. No. 126044-45, July 2, 1999.
30 People v. Alitagtag; G.R. Nos. 124449-51, June 29, 1999 citing People v. Quijada, 259 SCRA 191, 212-213 [1996].
31 People v. San Juan, G.R. No. 130969, February 29, 2000 citing People v. Gana, Jr., 265 SCRA 260 (1996) and US v. Burns, 41 Phil.
418.
32 Johnson v. Emerson, (1871).
33 Rollo in G.R. No. 105830, p. 126.
34 CA Decision, dated October 30, 1991, p. 49; Rollo in G.R. No. 105830, p. 129.
35 Rollo, p. 84.
37 People v. Pasco, Jr., 137 SCRA 137 (1985); People v. Rey, 172 SCRA 149 (1989).
38 U.S. v. Carrero, 9 Phil. 544.
39 Article 13. The following are mitigating circumstances:
xxx xxx xxx
4. that sufficient provocation or threat on the part of the offended party immediately preceded the act .
xxx xxx xxx
6. that of !laving acted upon an impulse so powerful as naturally to have produced passion or obfuscation.
40 People v. delos Sontos, 85 Phil. 870.
41 People v. Naboro, 73 Phil. 434.
42 See People v. Laude, 58 Phil. 933.
43 I Reyes. The Revised Penal Code, p. 272 (1998).
44 Article 249, Revised Penal Code. The penalty for homicide was not changed by R.A. No. 7659 though another law (Section 10,
R.A. No. 7610) provides that if the victim is under 12 years of age the penalty shall be one degree higher.
45 P.D.1866.
46 Pursuant to the old provisions of Section 1, P. D. 1866 and the court's ruling in People v. Quijada, 328 Phil. 505 (1996).
47 An act amending the provisions of P.D. 1866, as amended, entitled "Codifying the laws on illegal/unlawful possession,
manufacture, dealing in, acquisition or distribution of firearms, ammunitions, or explosives or instruments used in the
manufacture of firearms, ammunitions or explosives and imposing stiffer penalties for certain violations thereof and for relevant
purposes." (Took effect July 6, 1997).
48 People v. Nepomuceno, Jr., G.R. No. 130800, June 29, 1999 citing People v. Bergante, 286 SCRA 629 (1998); People v. Narvasa, 298
SCRA 637 (1998); People v. Molina, 292 SCRA 742 (1998).
49 Took effect December 1, 2000.
50 See Oriental Assurance v. Solidbank, G.R. No. 139882, August 16, 2000.
51 People v. Acuram, G.R. No. 117954, April 27, 2000.
52 People v. Pedroso, G.R. No. 125128, July 19, 2000.
53 People v. Cayago, G.R. No. 128827, August 18, 1999 citing People v. Arguelles, 222 SCRA 166 (1993).
54 People v. Reynaldo Langit, G.R. Nos. 134757-58, August 4, 2000; People v. Mindanao, G.R. No. 123095, July 6, 2000.

























Republic of the Philippines
SUPREME COURT
Manila
EN BANC
C.A. No. 384 February 21, 1946
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.
Jose Ma. Recto for appellant.
Assistant Solicitor General Enriquez and Solicitor Palma for appellee..
DE JOYA, J .:
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance
of Tayabas, for the crime of murder, of which Nicolas Jaurigue was acquitted, but
defendant Avelina Jaurigue was found guilty of homicide and sentenced to an
indeterminate penalty ranging from seven years, four months and one day of prision
mayor to thirteen years, nine months and eleven days of reclusion temporal, with the
accessory penalties provided by law, to indemnify the heirs of the deceased,
Amando Capina, in the sum of P2,000, and to pay one-half of the costs. She was
also credited with one-half of the period of preventive imprisonment suffered by her.
From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court
of Appeals for Southern Luzon, and in her brief filed therein on June 10, 1944,
claimed
(1) That the lower court erred in not holding that said appellant had acted in
the legitimate defense of her honor and that she should be completely
absolved of all criminal responsibility;
(2) That the lower court erred in not finding in her favor the additional
mitigating circumstances that (a) she did not have the intention to commit so
grave a wrong as that actually committed, and that (b) she voluntarily
surrendered to the agents of the authorities; and
(3) That the trial court erred in holding that the commission of the alleged
offense was attended by the aggravating circumstance of having been
committed in a sacred place.
The evidence adduced by the parties, at the trial in the court below, has sufficiently
established the following facts:
That both the defendant and appellant Avelina Jaurigue and the deceased Amado
Capina lived in the barrio of Sta. Isabel, City of San Pablo, Province of Laguna; that
for sometime prior to the stabbing of the deceased by defendant and appellant, in the
evening of September 20, 1942, the former had been courting the latter in vain, and
that on one occasion, about one month before that fatal night, Amado Capina
snatched a handkerchief belonging to her, bearing her nickname "Aveling," while it
was being washed by her cousin, Josefa Tapay.
On September 13, 1942, while Avelina was feeding a dog under her house, Amado
approached her and spoke to her of his love, which she flatly refused, and he
thereupon suddenly embraced and kissed her and touched her breasts, on account
of which Avelina, resolute and quick-tempered girl, slapped Amado, gave him fist
blows and kicked him. She kept the matter to herself, until the following morning
when she informed her mother about it. Since then, she armed herself with a long fan
knife, whenever she went out, evidently for self-protection.
On September 15, 1942, about midnight, Amado climbed up the house of defendant
and appellant, and surreptitiously entered the room where she was sleeping. He felt
her forehead, evidently with the intention of abusing her. She immediately screamed
for help, which awakened her parents and brought them to her side. Amado came
out from where he had hidden under a bed in Avelina's room and kissed the hand of
Nicolas Jaurigue, her father, asking for forgiveness; and when Avelina's mother
made an attempt to beat Amado, her husband prevented her from doing so, stating
that Amado probably did not realize what he was doing. Nicolas Jaurigue sent for the
barrio lieutenant, Casimiro Lozada, and for Amado's parents, the following morning.
Amado's parents came to the house of Nicolas Jaurigue and apologized for the
misconduct of their son; and as Nicolas Jaurigue was then angry, he told them to end
the conversation, as he might not be able to control himself.
In the morning of September 20, 1942, Avelina received information that Amado had
been falsely boasting in the neighborhood of having taken liberties with her person
and that she had even asked him to elope with her and that if he should not marry
her, she would take poison; and that Avelina again received information of Amado's
bragging at about 5 o'clock in the afternoon of that same day.
At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas
Jaurigue went to the chapel of the Seventh Day Adventists of which he was the
treasurer, in their barrio, just across the provincial road from his house, to attend
religious services, and sat on the front bench facing the altar with the other officials of
the organization and the barrio lieutenant, Casimiro Lozada. Inside the chapel it was
quite bright as there were electric lights.
Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival
of her father, also for the purpose of attending religious services, and sat on the
bench next to the last one nearest the door. Amado Capina was seated on the other
side of the chapel. Upon observing the presence of Avelina Jaurigue, Amado Capina
went to the bench on which Avelina was sitting and sat by her right side, and, without
saying a word, Amado, with the greatest of impudence, placed his hand on the upper
part of her right thigh. On observing this highly improper and offensive conduct of
Amado Capina, Avelina Jaurigue, conscious of her personal dignity and honor, pulled
out with her right hand the fan knife marked Exhibit B, which she had in a pocket of
her dress, with the intention of punishing Amado's offending hand. Amado seized
Avelina's right hand, but she quickly grabbed the knife with her left hand and stabbed
Amado once at the base of the left side of the neck, inflicting upon him a wound
about 4 1/2 inches deep, which was necessarily mortal. Nicolas Jaurigue, who was
seated on one of the front benches, saw Amado bleeding and staggering towards the
altar, and upon seeing his daughter still holding the bloody knife, he approached her
and asked: "Why did you do that," and answering him Avelina said: "Father, I could
not endure anymore." Amado Capina died from the wound a few minutes later. Barrio
lieutenant Casimiro Lozada, who was also in the same chapel, approached Avelina
and asked her why she did that, and Avelina surrendered herself, saying: "Kayo na
po ang bahala sa aquin," meaning: "I hope you will take care of me," or more
correctly, "I place myself at your disposal." Fearing that Amado's relatives might
retaliate, barrio lieutenant Lozada advised Nicolas Jaurigue and herein defendant
and appellant to go home immediately, to close their doors and windows and not to
admit anybody into the house, unless accompanied by him. That father and daughter
went home and locked themselves up, following instructions of the barrio lieutenant,
and waited for the arrival of the municipal authorities; and when three policemen
arrived in their house, at about 10 o'clock that night, and questioned them about the
incident, defendant and appellant immediately surrendered the knife marked as
Exhibit B, and informed said policemen briefly of what had actually happened in the
chapel and of the previous acts and conduct of the deceased, as already stated
above, and went with said policemen to the police headquarters, where her written
statements were taken, and which were presented as a part of the evidence for the
prosecution.
The high conception of womanhood that our people possess, however humble they
may be, is universal. It has been entertained and has existed in all civilized
communities.
A beautiful woman is said to be a jewel; a good woman, a treasure; and that a
virtuous woman represents the only true nobility. And they are the future wives and
mothers of the land. Such are the reasons why, in the defense of their honor, when
brutally attacked, women are permitted to make use of all reasonable means
available within their reach, under the circumstances. Criminologists and courts of
justice have entertained and upheld this view.
On the other hand, it is the duty of every man to protect and show loyalty to
womanhood, as in the days of chivalry. There is a country where women freely go
out unescorted and, like the beautiful roses in their public gardens, they always
receive the protection of all. That country is Switzerland.
In the language of Viada, aside from the right to life on which rests the legitimate
defense of our own person, we have the right to property acquired by us, and the
right to honor which is not the least prized of our patrimony (1 Viada, Codigo Penal,
5th ed., pp. 172, 173).
The attempt to rape a woman constitutes an unlawful aggression sufficient to put her
in a state of legitimate defense, inasmuch as a woman's honor cannot but be
esteemed as a right as precious, if not more, than her very existence; and it is
evident that a woman who, thus imperiled, wounds, nay kills the offender, should be
afforded exemption from criminal liability, since such killing cannot be considered a
crime from the moment it became the only means left for her to protect her honor
from so great an outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague
and Alcansare, 62 Phil., 504). .
As long as there is actual danger of being raped, a woman is justified in killing her
aggressor, in the defense of her honor. Thus, where the deceased grabbed the
defendant in a dark night at about 9 o'clock, in an isolated barrio trail, holding her
firmly from behind, without warning and without revealing his identity, and, in the
struggle that followed, touched her private parts, and that she was unable to free
herself by means of her strength alone, she was considered justified in making use of
a pocket knife in repelling what she believed to be an attack upon her honor, and
which ended in his death, since she had no other means of defending herself, and
consequently exempt from all criminal liability (People vs. De la Cruz, 16 Phil., 344).
And a woman, in defense of her honor, was perfectly justified in inflicting wounds on
her assailant with a bolo which she happened to be carrying at the time, even though
her cry for assistance might have been heard by people nearby, when the deceased
tried to assault her in a dark and isolated place, while she was going from her house
to a certain tienda, for the purpose of making purchases (United States vs. Santa
Ana and Ramos, 22 Phil., 249).
In the case, however, in which a sleeping woman was awakened at night by
someone touching her arm, and, believing that some person was attempting to
abuse her, she asked who the intruder was and receiving no reply, attacked and
killed the said person with a pocket knife, it was held that, notwithstanding the
woman's belief in the supposed attempt, it was not sufficient provocation or
aggression to justify her completely in using deadly weapon. Although she actually
believed it to be the beginning of an attempt against her, she was not completely
warranted in making such a deadly assault, as the injured person, who turned out to
be her own brother-in-law returning home with his wife, did not do any other act
which could be considered as an attempt against her honor (United States vs.
Apego, 23 Phil., 391)..
In the instant case, if defendant and appellant had killed Amado Capina, when the
latter climbed up her house late at night on September 15, 1942, and surreptitiously
entered her bedroom, undoubtedly for the purpose of raping her, as indicated by his
previous acts and conduct, instead of merely shouting for help, she could have been
perfectly justified in killing him, as shown by the authorities cited above..
According to the facts established by the evidence and found by the learned trial
court in this case, when the deceased sat by the side of defendant and appellant on
the same bench, near the door of the barrio chapel and placed his hand on the upper
portion of her right thigh, without her consent, the said chapel was lighted with
electric lights, and there were already several people, about ten of them, inside the
chapel, including her own father and the barrio lieutenant and other dignitaries of the
organization; and under the circumstances, there was and there could be no
possibility of her being raped. And when she gave Amado Capina a thrust at the
base of the left side of his neck, inflicting upon him a mortal wound 4 1/2 inches
deep, causing his death a few moments later, the means employed by her in the
defense of her honor was evidently excessive; and under the facts and
circumstances of the case, she cannot be legally declared completely exempt from
criminal liability..
But the fact that defendant and appellant immediately and voluntarily and
unconditionally surrendered to the barrio lieutenant in said chapel, admitting having
stabbed the deceased, immediately after the incident, and agreed to go to her house
shortly thereafter and to remain there subject to the order of the said barrio
lieutenant, an agent of the authorities (United States vs. Fortaleza, 12 Phil., 472);
and the further fact that she had acted in the immediate vindication of a grave
offense committed against her a few moments before, and upon such provocation as
to produce passion and obfuscation, or temporary loss of reason and self-control,
should be considered as mitigating circumstances in her favor (People vs. Parana,
64 Phil., 331; People vs. Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86).
Defendant and appellant further claims that she had not intended to kill the deceased
but merely wanted to punish his offending hand with her knife, as shown by the fact
that she inflicted upon him only one single wound. And this is another mitigating
circumstance which should be considered in her favor (United States vs. Brobst, 14
Phil., 310; United States vs. Diaz, 15 Phil., 123).
The claim of the prosecution, sustained by the learned trial court, that the offense
was committed by the defendant and appellant, with the aggravating circumstance
that the killing was done in a place dedicated to religious worship, cannot be legally
sustained; as there is no evidence to show that the defendant and appellant had
murder in her heart when she entered the chapel that fatal night. Avelina is not a
criminal by nature. She happened to kill under the greatest provocation. She is a
God-fearing young woman, typical of our country girls, who still possess the
consolation of religious hope in a world where so many others have hopelessly lost
the faith of their elders and now drifting away they know not where.
The questions raised in the second and third assignments of error appear, therefore,
to be well taken; and so is the first assignment of error to a certain degree.
In the mind of the court, there is not the least doubt that, in stabbing to death the
deceased Amado Capina, in the manner and form and under the circumstances
above indicated, the defendant and appellant committed the crime of homicide, with
no aggravating circumstance whatsoever, but with at least three mitigating
circumstances of a qualified character to be considered in her favor; and, in
accordance with the provisions of article 69 of the Revised Penal Code, she is
entitled to a reduction by one or two degrees in the penalty to be imposed upon her.
And considering the circumstances of the instant case, the defendant and appellant
should be accorded the most liberal consideration possible under the law (United
States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil., 472; People vs.
Mercado, 43 Phil., 950)..
The law prescribes the penalty of reclusion temporal for the crime of homicide; and if
it should be reduced by two degrees, the penalty to be imposed in the instant case is
that of prision correccional; and pursuant to the provisions of section 1 of Act No.
4103 of the Philippine Legislature, known as the Indeterminate Sentence Law, herein
defendant and appellant should be sentenced to an indeterminate penalty ranging
from arresto mayor in its medium degree, to prision correccional in its medium
degree. Consequently, with the modification of judgment appealed from, defendant
and appellant Avelina Jaurigue is hereby sentenced to an indeterminate penalty
ranging from two months and one day of arresto mayor, as minimum, to two years,
four months, and one day ofprision correccional, as maximum, with the accessory
penalties prescribed by law, to indemnify the heirs of the deceased Amado Capina,
in the sum of P2,000, and to suffer the corresponding subsidiary imprisonment, not to
exceed 1/3 of the principal penalty, in case of insolvency, and to pay the costs.
Defendant and appellant should also be given the benefit of 1/2 of her preventive
imprisonment, and the knife marked Exhibit B ordered confiscated. So ordered..
Ozaeta, Perfecto, and Bengzon, JJ., concur.

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

















Example Case of Incomplete Self-defense: (Art. 13)
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-58506 November 19, 1982
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. NILO DE JESUS and
WILFREDO YALONG, defendants-appellants.
The Solicitor General for plaintiff-appellee.chanrobles vi rtual law li brary
Jacinto D. Jimenez & Emilio G. Pineda for defendants-appellants.
-->

DE CASTRO, J.:chanrobles virtual law li brary
In an information filed with the Court of First Instance of Quezon City, Nilo de Jesus
and Wilfredo Yalong were charged with Murder. One Peter Doe alias Pepito, alias
Pitong was also charged in the same information, but has so far not been brought to
trial. Only Nilo de Jesus and Wilfredo Yalong were tried, and thereafter, convicted and
sentenced to reclusion perpetual, and to indemnify the heirs of the deceased in the
sum of P15,560.00, with the accessory penalties, and to pay proportionate costs.chanroblesvi rtualawlibrary chanrobles vi rtual
law library
Both de Jesus and Yalong appealed, firing separate briefs, but the Solicitor General
filed only one consolidated brief for the appellee.chanroblesvi rtualawl ibrarychanrobles vi rtual law library
Only one eye-witness, Fernando de los Santos, testified for the prosecution, and
together with the examining physician, Dr. Nieto Salvador of the NBI, established the
following facts, as quoted from the People's brief: chanrobles vi rtual law library
In the afternoon of May 21, 1978, Fernando de los Santos was taking a nap in their
house at Aspere Avenue, Tatalon Estate, Quezon City. At about 2:00 o'clock that
afternoon, he was awakened by the shout of a small boy who informed him that his
father, Feliciano de los Santos, was engaged in a quarrel. Forthwith, he proceeded to
the scene of the quarrel at nearby Araneta Avenue. Upon arriving thereat he saw
Yalong in the act of aiming a gun at his father. Instinctively, Fernando shouted at his
father to run, but the latter was fired at by Yalong before he could do so. Then, while
Fernando's father was still on his feet, appellant de Jesus suddenly grabbed the gun
from Yalong and himself fired at the victim once, causing the latter to fall as he was
about to run away (pp. 5-9, 13-16, tsn, Dec. 28, 1978; pp. 5-12, April 30, 1979).chanroblesvirtualawli brary chanrobles
virtual law library
Thereafter, both appellants ran away; while Fernando immediately went home to look
for his brother, Pat. Narciso de los Santos. When the two brothers returned to the
crime scene, Fernando could no longer feel the pulse of his father. Forthwith, Narciso
left to hunt for the killers; while Fernando reported the incident to the police
authorities, to whom he gave the names of the suspects and a verbal account of the
incident (pp. 9-11, 21-23, tsn, Dec. 28, 1978; pp. 18" 23-25, 42-45, tsn, April 30,
1979).chanroblesvirtualawli brary chanrobles vi rtual law li brary
Meanwhile, a cousin of the two brothers, Baltazar de los Santos, brought the victim to
the hospital, but the latter was pronounced dead upon arrival. The cadaver was then
autopsied. Dr. Nieto Salvador, NBI medico-legal officer, conducted the post mortem
examination and issued a necropsy report (Exhibit "B"). His findings as to the house of
death of the victim was "hemorrhage, acute, severe, secondary to gunshot wound,
chest." According to the doctor, the victim suffered two bullet wounds, one on the left
side of the chest perforating the atrium of the heart, and the other on the right hand.
The bullet (Exhibit "D") which pierced the chest, was found by the doctor imbedded at
the back right side of the body (pp. 12-13, 17, tsn, April 30, 1979; pp. 20-29, tsn,
May 18, 1979). This was the fatal bullet.chanroblesvirtualawl ibrary chanrobles virtual law l ibrary
Although the assailants have been Identified, prosecution of the case could not
proceed because the suspects went into hiding to escape arrest. In the case of
appellant de Jesus, he stayed for one week in the house of a friend in the Tatalon
Estate, then proceeded to the province of Isabela. He was arrested by the P.C. only on
October 14, 1978 while in Pangasinan buying smoked fish (pp. 22-26, tsn, Jan. 4,
1980). When de Jesus was brought to Camp Crame in Quezon City, he was confronted
by Fernando who readily Identified him as one of the killers of his father, and then
gave a written statement before Det. Fluto Casayuran (Exhibit "A") wherein he
narrated his account of the incident of May 21, 1978 (pp. 24-29, tsn, Aug. 3, 1979).
For his part, appellant Yalong proceeded to hide at his uncle's house in Lardizabal St.,
Sampaloc, Manila for about three weeks. From there, he proceeded to Quezon
Province, then to Iloilo and Zamboanga before returning to Lardizabal Street, where
he was arrested on February 22, 1979. After being apprised of his constitutional right,
appellant Yalong voluntarily gave an extrajudicial statement (Exhibit "H") wherein he
implicated his co- accused Nilo de Jesus for the death of the victim on May 21, 1978
(pp. 8- 11, 15-17, tsn, May 20, 1980).
1

The decision was rendered by Judge Jaime Lantin, after the case was heard wholly by
Judge Sergio Apostol who was later appointed City Fiscal. For a fair and just judgment
to De arrived at, the defense version should likewise be set forth herein, and as stated
in the decision appealed from, is, for appellant de Jesus, as follows: chanrobles virtual law l ibrary
Accused Nilo de Jesus denied the imputation. His defense is to the effect that on the
afternoon in question he went to the house of Feliciano de los Santos looking for one
Joe (Pitong) Napucao who had invited him (Nilo) to join Joe in his work; that he did
not find Napucao in the house; that he was invited by Feliciano de los Santos to join
other persons having drinks; that thereafter he saw Feliciano de los Santos sleeping
on a table drunk; that when he bade goodbye as he wanted to go home, he was asked
by one Lito to stay and drink with them until Feliciano de los Santos would wake up;
that when he insisted that he should leave, Lito got mad and tried to box him; that
when Feliciano de los Santos woke up, he punched him, but he was able to evade the
blow; that they were pacified, after which he went home; that after taking his lunch,
he went to a nearby store to buy cigarettes; that after a while Napucao arrived and
asked him what happened between him and Feliciano de los Santos; that Wilfredo
Yalong arrived; that after a few minutes, Feliciano de los Santos drunk, also arrived,
holding a dagger and began to attack him (Nilo de Jesus); that Napucao held Feliciano
de los Santos; that the latter extricating himself from the hold, proceeded to attack
him, but since he was protected by a palo china wood, Feliciano de los Santos instead
stabbed Yalong with the dagger; that he heard two shots from the gun held by Wilfedo
Yalong, that Feliciano de los Santos ran away only to fall down on his tracks; that
since Wilfredo Yalong and Napucao already left, he was told by people who had
gathered at the scene that he should also leave for he might be suspected of having
shot the victim; that he stayed in a friend's house at Tatalon, and after a week he left
for Isabela and stayed there for four months; that in Pangasinan, he was arrested by
PC soldiers and brought to Camp Crame; and that Fernando de los Santos was not
there to witness the shooting incident.
2
chanrobles vi rtual law library
For appellant Yalong, We also quote from the appealed decision the following.chanroblesvirtualawl ibrary chanrobles vi rtual law library
On the other hand, accused Wilfredo Yalong interposed self-defense. His defense is
that in the afternoon in question, after coming from a baptismal party, he dropped by
the store of Remy to buy cigarettes and pop-cola; that Feliciano de los Santos (Mang
Siano) arrived armed with a bayonet, shouting, "putang ina mo Nilo (referring to
accused Nilo de Jesus), bakit mo ako pinalo ng bote;" that Nilo de Jesus answered,
"putang ina mo Siano, bakit mo naman ako sinuntok;" that Feliciano de los Santos
lunged at Nilo de Jesus with the bayonet; that one Pitong intervened and tried to
pacify Feliciano de los Santos, saying "pare that is enough. Nilo has done nothing
wrong to you;" that Feliciano de los Santos again tried to attack, but Pitong blocked
his way and hold him; that extricating himself from Pitong, Feliciano de los Santos ran
towards him (accused), and tried to stab him; that he pulled out his gun from his
waist and fired two shots at Feliciano de los Santos; that Feliciano de los Santos ran
and fell to the ground; that he went home, then to the house of his uncle at Lardizabal
St., Sampaloc, Manila, and after staying there for three weeks he went to Quezon
Province, to Iloilo and to Zamboanga; that he hid because the son of the deceased,
Pat. Narciso de los Santos of the Quezon City Police, was looking for him; that
thereafter, he was arrested at Lardizabal St., Sampaloc, by Pat. Gurat; that he was
brought to a bodega and then taken to the office of the CID at Sikatuna, Quezon City;
that he was investigated and gave his written statement; that his statement given to
the authorities was not true, as he only impleaded accused Nilo de Jesus out of spite
because the latter was pinning him down; that two days after the incident, his friend
Rodolfo Pornales, now deceased, got back the gun from him.
3

What would instantly strike attention is the variance in the testimony of the lone state
eye-witness, on one hand, and the two appellants on the other, as to who fired the
fatal shot. According to the state witness Fernando de los Santos, it was appellant de
Jesus who fired the fatal shot, when he grabbed the gun from appellant Yalong after
the latter had shot the deceased but hitting him only on the right hand. Both
appellants are one in stating that only Yalong fired the two shots that hit the deceased
on two different parts of the body.chanroblesvi rtualawlibrary chanrobles vi rtual law library
The Court finds more convincing the testimony of the appellants that only Yalong fired
the two shots that hit the deceased, one fatally on the breast. Yalong admitted this to
be the fact. De Jesus' testimony serves to corroborate Yalong's admission which, from
its damaging effect on the declarant Yalong, makes it very reliable and therefore
convincing.chanroblesvi rtualawlibrary chanrobles vi rtual law library
The foregoing observation places the whole testimony of state witness de los Santos in
grave doubt. The motive for his committing the falsehood is manifest. It was de Jesus
who had a quarrel with his deceased father and struck the latter with a bottle on the
head moments before the shooting. De Jesus had to be made a co-author in fact, the
main culprit, of the killing. Hence, the testimony of de lo Santos clearly fabricated that
de Jesus grabbed the gun from Yalong after the latter had fired the first shot, and then
he (de Jesus) fired the second shot that was fatal.chanroblesvi rtualawlibrary chanrobles virtual law l ibrary
The fabricated nature of the testimony of state witness de los Santos becomes more
evident in the light of the testimony of Dr. Salvador, that the muzzle of the gun could
have been only five inches to the body of the deceased. A better marksman that the
trial court found de Jesus to be - without any evidence, to be sure - was, therefore,
not needed at all, again contrary to the trial court's speculation on this regard.chanroblesvi rtualawlibrary chanrobles virtual law library
The facts already adverted to make it very doubtful whether the lone eye- witness for
the prosecution saw what he professed to have seen of the shooting incident.
Appellant de Jesus positively stated he was not at the scene. We are inclined to agree
with him. If de los Santos saw the incident the way he so testified in court, this
witness, son of the deceased, should have rushed to the latter's rescue, and should
have himself brought the stricken man to the hospital. With the serious condition of
his father, he should not have left him, not for a single moment, from the time he saw
his father fall until he was being brought to the hospital. Strangely, however, it was a
cousin who brought the gravely wounded man to the hospital. Of course, this fact
could not be altered so as to make it appear that it was the son Fernando, who
brought the deceased to the hospital, The records of the hospital would reveal the lie.
This fact again clearly demonstrates that the state witness F. de los Santos, son of the
deceased, was not at the scene.chanroblesvirtualawl ibrary chanrobles virtual law l ibrary
What is also strange is that no police blotter was presented in court to show that the
state witness saw who the culprits were. His pretense that he saw them, and knew
who they were, was precisely disputed seriously by the fact that it took him after five
months to give his statement. His claim that soon after the incident he told the police
who the culprits were could not, therefore, be believed if this fact does not appear in
the police blotter as it should have been entered therein.chanroblesvirtualawli brary chanrobles vi rtual law li brary
If what has been shown thus far is not sufficient to discredit F. de los Santos as a
supposed eye-witness, We find not without merit Yalong's claim, through counsel, that
the testimony of the aforenamed witness is "riddled with inherent incredibilities and
unexplainable contradictions", listing the following circumstances to prove the claim: chanrobles
virtual law library
l. In court, he testified that the child whose shout awakened him said that his father
was being ganged upon. (T.s.n., p. 6, Hearing of December 6, 1978.) This is
contradicted by the statement he gave to the police, in which he said the child shouted
that his father was quarreling with someone. (Exhibit 1-G.) chanrobles vi rtual law li brary
2. Fernando de los Santos claims he saw how his father was killed. Yet, despite the
fact that his own brother Narciso was a member of the Quezon City police force, it was
only on October 19, 1978, or five (5) months later that he gave a statement to the
police. (Exhibit 1.) The only explanation for this undue delay is that Fernando de los
Santos decided to lie that he saw the shooting of his father, because there was no
other witness.chanroblesvi rtualawlibrary chanrobles vi rtual law library
3. He repeatedly swore falsely that he gave a written statement to the police the very
afternoon of May 21, 1978. (t.s.n., p. 59, Hearing of April 30, 1979; t.s.n., p. 9,
Hearing of August 3, 1979.) He even Identified the statement dated October 19, 1978
(Exhibit 1) as the very statement he gave. (T.s.n., pp. 5 and 10, Hearing of August 3,
1979). When finally confronted with his written statement, he admitted that he gave a
written statement only after five (5) months later. (T.s.n., pp. 9-10, Hearing of August
3,1979.) chanrobles virtual law library
4. Fernando de los Santos claimed that he waited until after the arrest of both
defendants-appellants before giving his written statement. (T.s.n., pp. 25-26, Hearing
of August 3, 1979.) While his written statement was taken on October 19, 1978,
defendant-appellant Yalong was not arrested until - February, 22, 1980, or More than
a year later. (T.s.n., p. 36. Hearing of October 17, 1979.) This unmasks another
falsehood in his testimony.chanroblesvi rtualawlibrary chanrobles vi rtual law library
5. Earlier, he testified that, when he left the scene of shooting, there were no people
,here. (T.s.n.. p. 27. Hearing on December 28, 1978.) Later, he contradicted himself
by saying there were many people there. (T.s.n p. 41, Hearing of August 3, 1979.) chanrobles vi rtual law library
6. In his written statement, he was fifteen (15) meters away from where his father
was shot. (Exhibits A-4 and I-F.) In court, he contradicted himself by saying he was
ten (10) meters away. (T.s.n., p. 16, hearing of December 28, 1978; t.s.n., p. 10,
Hearing of April 30, 1979).chanroblesvi rtualawlibrary chanrobles vi rtual law library
7. First, he testified that when his father pitched forward, he did not approach his
father to see if his father was dead. He went home first. It was only upon his return
that he felt the pulse of his father to check if his father was still alive. (T.s.n., pp. 22-
23, Hearing of December 28, 1978.) Later, he contradicted himself by saying he
approached his father and felt the pulse of his father before he went home. (T.s.n., p.
45, Hearing of August 3, 1979.) chanrobles vi rtual law library
8. He claims that it took a full fifteen (15) minutes from the time his father was shot in
the chest before his father slumped down. (T.s.n., p. 21, Hearing of December 28,
1979.) During all that time, he did not even lift a finger 't ) rush his father to a, nearby
hospital like the UERM Memorial Medical Center. This is the first step which any son
who is present would have done under the circumstances. Yet, if we are to believe
Fernando de los Santos, he went home first. Upon his return that was the only time he
checked if his father was still alive.chanroblesvirtualawl ibrary chanrobles virtual law l ibrary
9. Defendant-appellant de Jesus categorically testified that Fernando de los Santos
was not present when the shooting happened. (T.s.n., pp. 26-27, Hearing of January
4, 1980.)
4

Carefully evaluating the foregoing circumstances, as affecting the credibility of the
testimony given by the only supposed eye-witness for the prosecution, We come to
the conclusion that said witness did not see how the actual shooting took place, much
less the incidents immediately preceding. He was not at the scene when, as testified
by Yalong, with the corroboration of an unbiased witness, Mrs. Anita Bernales, and
appellant de Jesus himself, the deceased directed his attack with a dagger to appellant
Yalong who, thereupon, drew a gun from his waist and fired twice at the deceased.
The testimony of de los Santos that it was appellant de Jesus that fired the second
fatal shot after grabbing the gun from Yalong was evidently fabricated in an attempt to
purvey a more credible story, as the prosecution would like to have the court believe
in. Thus, as it was with de Jesus that the deceased had a previous quarrel, the former
is the one with motive to harm the latter. It is also de Jesus not Yalong, the family of
the deceased wanted punished for the killing. As the evidence shows, Yalong had not
even seen the deceased on that fatal day except on the very time of the shooting, and
at the place where the two met only, by coincidence.chanroblesvi rtualawlibrary chanrobles virtual law library
What is plain from the credible evidence on record is that de Jesus had no participation
in the shooting. Yalong admitted to be the only one who fired his gun at the deceased
twice. From Yalong's testimony, credibly corroborated by an impartial witness, he
acted to defend himself because the decease tried to stab him. No evidence was
presented by the prosecution to rebut this testimonial evidence. The direct testimony
of its only supposed eye-witness which is of doubtful veracity as explained above,
cannot serve to discredit the version of the defense. At this point, the trial court did
not give credit to the claim that the deceased was armed with a dagger or bayonet.
We find sufficient credible evidence as to the attack with a dagger against Yalong,
such as the testimony of the two appellants and a disinterested witness mentioned
above. If the weapon was not presented, it is because it had gone into the possession
of the police who, for obvious reasons, would not present it during the trial, through
the prosecuting officer.chanroblesvirtualawl ibrary chanrobles virtual law l ibrary
With the deceased shown to the aggressor as against Yalong, the reasonableness of
the means used by Yalong to repel the aggression may however, not be assessed in
his favor. The deceased was in a state of drunkenness, so he was not as dangerous as
he would if he had been sober. His aim proved faulty and easily evaded as shown by
the fact that Yalong was not hit by the stab attempts-blows directed against him. At
best, We can grant incomplete self-defense in his favor, the necessity of the means he
used to repel the aggression not appearing to Us clearly, reasonable.chanroblesvi rtualawlibrary chanrobles vi rtual law library
With respect to de Jesus. as already intimated above, he fired no shot at the
deceased. His co-accused owned sole authorship of the shooting. His liability,
therefore, would have to be based on a finding of conspiracy, between him and
appellant Yalong.chanroblesvi rtual awlibrary chanrobles vi rtual law library
In finding conspiracy against both appellants, the trial court said: chanrobles vi rtual law library
The authors of the crime are the accused Nilo de Jesus and Wilfredo Yalong. Accused
Yalong and de Jesus conspired together in killing the deceased. They were motivated
by the same criminal purpose and design. They were present at the scene, confronting
the deceased. After accused Yalong fired the first shot, which wounded the deceased
on the right hand, accused Nilo de Jesus continued the aggression; he got the gun
from accused Yalong and fired the fatal shot at the victim. Accused Yalong was a poor
marksman. When he gave the gun to accused de Jesus, he knew that the latter could
do the task better. On the other hand, accused de Jesus, confident of his ability, went
to execute the decisive finishing stroke. After their job was accomplished, with the
victim prostrate on the ground, the two accused together escaped from the scene and
went into hiding. In conspiracy, the act of one conspirator is the act of the other, each
being responsible for the other's act in furtherance of their common objective.
5
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With Our assessment of the testimony of the only supposed eye-witness of the
prosecution, as already indicated above, the trial court's finding of the existence of
conspiracy would be left without its main basis the participation of de Jesus in the
shooting. It is also undisputed that the presence of both appellants at the store where
the shooting took place was not prearranged but purely coincidental.
6
Neither was
there any evidence to show that they knew the deceased would go to the store and
there shoot him. If there was previous agreement to kill or harm the deceased,
appellants would not have chosen the store where the people come and go to
perpetrate the heinous offense.chanroblesvirtualawl ibrary chanrobles virtual law l ibrary
The fact that both appellants left together would not necessarily prove conspiracy
since they live in the same vicinity.
7
Only Yalong was armed. If de Jesus was in
conspiracy with him, de Jesus should have also armed himself with some weapon.
Yalong had absolutely no motive to join de Jesus in a common desire to harm, much
less kill the deceased.chanroblesvirtualawl ibrary chanrobles vi rtual law library
The trial court also cited the fact that they went later into hiding to prove conspiracy
and guilt as well. The explanation given by appellants for having gone into hiding is to
Us sufficiently satisfactory. The deceased had a son who is a member of the police
force of Quezon City. He was heard by the mother of appellant Yalong to have said
that if he (Policeman Narciso de los Santos) would see said appellant, he would shoot
him.
8
It was his mother who then advised him to go to stay with his in-laws.
9
For
similar reason de Jesus also went to Isabela. He learned from his wife that Policeman
de los Santos had gone to their house looking for him saying that if he could not see
him, Pat. de los Santos will kill even his children. It was his wife who advised him to
leave Tatalon in the meantime.chanroblesvi rtualawlibrary chanrobles virtual law library
The liability of de Jesus on ground of conspiracy has therefore not been established
beyond doubt, as it should be as the guilt itself. His innocence was also shown by his
uncontradicted testimony that even after Yalong had left the scene, he stayed
intending to lend a helping hand to the fallen man whom he called "Tiyo Siano" to be
brought to the hospital. But people around advised him to go away as he may be
suspected as a co-author of the shooting. He went away to the house of a friend in
Tatalon. On ground of reasonable doubt, We find the guilt of de Jesus, therefore, not
to have been duly established to make him liable for the crime charged.chanroblesvi rtualawlibrary chanrobles vi rtual law library
We do not agree with the finding of the trial court that the shooting of the deceased
was attended with the qualifying circumstance of treachery. To constitute treachery,
the method, form or means adopted in killing the victim must be consciously and
deliberately chosen to insure its execution without any risk to the offender arising from
the defense which the victim might make.
10
There is nothing in the records to indicate
that Yalong reflected on the means or method to insure the killing of the deceased or
remove or diminish any risk to himself that might arise from the defense that the
deceased might make. Yalong's decision to shoot the deceased appeared to be
sudden, brought about by the latter's unlawful aggression to stab the former by a
dagger. The killing of the deceased was on the spur of the moment; no time was left
for the accused to deliberate on his mode of attack or to prepare for the manner by
which he could kill the deceased with the full assurance that it would be impossible or
hard for the latter to defend himself or retaliate. Had Yalong wanted to attack the
deceased treacherously, he could have shot the deceased at a farther and safer
distance and not at a close range (at least 5 inches from the muzzle of the gun to the
surface of the skin), as testified by Dr. Nieto Salvador,
11
to insure himself against the
risk from any possible defense the deceased might make.chanroblesvirtualawl ibrary chanrobles virtual law l ibrary
In the absence of treachery as a qualifying circumstance, the crime committed is only
homicide and not murder as charged. We have stated earlier that Yalong is entitled to
the benefit of the special mitigating circumstance of incomplete self-
defense
12
inasmuch as there was unlawful aggression on the part of the deceased
without any provocation coming from Yalong, but it was not proven that the means
employed by the latter was reasonably necessary. Considering this foregoing
circumstance, and in applying the provision of Article 69 of the Revised Penal Code,
the penalty one degree lower than that of reclusion temporal prescribed for the crime
of homicide must be imposed, which is prision mayor. On those grounds, there should
be imposed upon Yalong the penalty of prision mayor in its minimum period.
13
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WHEREFORE, the judgment of conviction as to appellant Nilo de Jesus is reversed and
the latter is hereby acquitted. His immediate release is ordered unless otherwise,
detained for another offense.chanroblesvirtualawli brary chanrobles vi rtual law li brary
With respect to appellant Wilfredo Yalong, the judgment is modified. He is hereby,
found guilty of homicide and sentenced to suffer the penalty of four years of prision
correccional to eight years of prision mayor, to indemnify the heirs of deceased
Feliciano de los Santos in the sum of P12,000.00 without subsidiary imprisonment in
case of insolvency, and to pay the costs. Appellant Yalong should be credited with the
full time of his preventive imprisonment upon a showing that he agreed to abide by
the same disciplinary rules imposed upon convicted prisoners, otherwise, he shall be
credited with four-fifths (4/5) of the time of such preventive imprisonment.
14
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SO ORDERED.
Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos and Escolin, JJ.,
concur.chanroblesvi rtualawlibrary chanrobles vi rtual law library
Aquino, J., took no part.

Endnotes:
1 pp. 3-6, Brief for Appellee; pp. 139-142, Rollo.chanrobles vi rtual law library
2 pp, 3-4, Decision; pp. 5-6, Rollo.chanrobles vi rtual law li brary
3 pp. 4-5, Decision; pp. 6-7, Rollo,
4 pp. 7-9, Brief for Appellee: pp. 48-50, Rollo.chanrobles virtual law l ibrary
5 p. 3, Decision: p. 5 Rollo.chanrobles virtual law l ibrary
6 See People vs. Dealon, 99 SCRA 422, 463.chanrobles vi rtual law library
7 See People vs. Trinidad, 20 SCRA 549.chanrobles vi rtual law library
8 p. 23, tsn., June 20, 1980.chanrobles vi rtual law li brary
9 Id.
10 Article 14, paragraph 16, Revised Penal Code; People vs. Ruiz, 110 SCRA 155;
People vs. Talay, 101 SCRA 332; People vs. Satorre, 74 SCRA 101; People vs. Tizon,
66 SCRA 372; People vs.chanrobles virtual l aw library
Samonte, Jr., 64 SCRA 319; People vs. Macuso, 64 SCRA 659; People vs. Boduso, 60
SCRA 60; People vs. Sudoy, 60 SCRA 174; People vs. Velez, 58 SCRA 21; People vs.
Pelayo, 24 SCRA 1027; People vs. Tumaob, 83 Phil. 738.chanrobles virtual law l ibrary
11 pp. 14 and 16, t.s.n., July 3, 1979.chanrobles virtual law l ibrary
12 People vs. Oandasan, 25 SCRA 277; People vs. Alviar, 56 Phil. 98; People vs.
Sotelo, et al, 55 Phil. 396; People vs. De la Pena 54 Phil. 818; People vs. Berganio, et
al., 52 Phil. 313; People vs. Lucero, 49 Phil. 160; People vs. Almendralejo, 48 Phil.
268; People vs. Mercado, 43 Phil. 950; U.S. vs. Rivera, 41 Phil. 472; U.S. vs. Pasca,
28 Phil. 222; U.S. vs. Agaludud, 8 Phil. 750; U.S. vs. Dimitillo, 7 Phil. 475; U.S. vs. De
Ocampo, 6 Phil. 449; U.S. vs. Sy Vinco, 5 Phil. 47: U.S. vs. De Castro, 2 Phil. 67; U.S.
vs. Ancheta, 1 Phil. 30.chanrobles vi rtual law library
13 People vs. Sotelo, 55 Phil. 396; U.S. vs. De Castro, 2 Phil. 67; U.S. vs. Ancheta, 1
Phil. 30.chanrobles virtual law l ibrary
14 Article 29 of the Revised Penal Code, as amended by Republic Act No. 6127.






























Example of Incomplete Defense of Relative
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-56358 October 26, 1990
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. LUIS B. TORING DIOSDADO
BERDON and CARMELO B. BERDIN, Accused-Appellants.

FERNAN, C.J.:
The appellants herein seek the reversal of the October 28, 1980 decision of the Circuit
Criminal Court in Cebu City in Criminal Case No. CCC-XIV-2170, the dispositive portion
of which reads:
WHEREFORE, the Court finds the accused Luis B. Toring guilty beyond reasonable
doubt of the crime of MURDER by direct participation as principal; Diosdado Berdon as
accomplice thereto; and Carmelo Berdin as accessory after the fact.chanroblesvirtualawl ibrary chanrobles vi rtual law library
Appreciating in favor of the accused Luis B. Toring the mitigating circumstance of
voluntary surrender, the said circumstance having been offset by the aggravating
circumstance of nighttime, the accused Luis Toring should be, as he is, hereby
sentenced to the penalty of RECLUSION PERPETUA, with the accessory penalties of
law.chanroblesvirtualawl ibrarychanrobles vi rtual law library
There being neither mitigating nor aggravating circumstances on the part of the
accused Diosdado Berdon, the said accused should as he is hereby sentenced to the
indeterminate penalty of from SIX (6) YEARS of Prision Correccional, as minimum, to
TWELVE (12) and ONE (1) DAY of Reclusion Temporal, as maximum, with the
accessory penalties of the law.chanroblesvirtualawl ibrary chanrobles vi rtual law library
Appreciating in favor of the accused Carmelo Berdin, the privileged mitigating
circumstance of minority, the said accused being only 17 years of age, the accused
Carmelo Berdin should be, as he is, sentenced to the penalty of SIX (6) MONTHS and
ONE (1) DAY of Prision Correccional, with the accessory penalties of the law.chanroblesvirtualawli brary chanrobles virtual law li brary
The defendants shall jointly and solidarily indemnify the heirs of the deceased Samuel
Augusto for actual and compensatory damages in the sum of P15,000.00 and for
moral damages in the sum of P50,000.00, without subsidiary imprisonment in case of
insolvency.chanroblesvi rtualawlibrary chanrobles vi rtual law li brary
The instrument of the crime, the knife, Exhibit "B", is confiscated in favor of the
government.chanroblesvi rtualawlibrary chanrobles virtual law l ibrary
Proportionate costs.chanroblesvirtualawl ibrary chanrobles vi rtual law library
SO ORDERED.
1
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According to the prosecution, the antecedent facts are as follows: chanrobles vi rtual law library
In the evening of May 25, 1980, a benefit dance was held at sitio Naga, Babag II,
Lapu-lapu City for the last canvassing of votes for the candidates for princesses who
would reign at the sitio fiesta. As one of the candidates was the daughter of Samuel
Augusto, he and the members of his family attended the affair.chanroblesvirtualawli brary chanrobles vi rtual law library
Also present were members of the kwaknit gang, a group which was noted for their
bird-like way of dancing and their propensity for drunkenness and provoking trouble.
Its president, called the "alas" king, was Luis Toring. The group was then outside the
dancing area which was ringed by benches.chanroblesvi rtualawlibrary chanrobles virtual l aw library
At around 10:45 p.m., Samuel's daughter was proclaimed the winner in the contest.
Beer and softdrinks having been served the parents of the candidates by the officers
of the Naga Chapel Association which took charge of the affair, Samuel was tipsy
when, after his daughter's proclamation, he stepped out of the dancing area to answer
the call of nature.chanroblesvi rtualawlibrary chanrobles vi rtual law li brary
At that moment, barangay tanod Felix Berdin saw Luis Toring, Carmelo Berdin and
Diosdado Berdon proceed to a dark area while whispering to each other. Diosdado
Berdon handed a knife to Luis Toring,
2
who then approached Samuel from behind,
held Samuel's left hand with his left hand, and with his right hand, stabbed with the
knife the right side of Samuel's abdomen.
3
Upon seeing Felix running towards them,
Luis Toring pulled out the knife and, together with Carmelo Berdin and Diosdado
Berdon, ran towards the dark. Felix tried to chase the three but he was not able to
catch them. He returned to where Samuel had slumped and helped others in taking
Samuel to the hospital.chanroblesvi rtualawlibrary chanrobles virtual law library
According to Maria Catalina Sorono, who was six (6) meters away from Samuel and
Luis when the assault occurred, Diosdado Berdon and Carmelo Berdin were poised to
deliver fist blows on Samuel just before Luis Toring stabbed him. Diosdado gave the
knife to Luis Toring.
4
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As soon as she saw the stabbing of Samuel, Maria Catalina shouted for help. The three
assailants ran towards the direction of the fields. Jacinto Lobas and Mario Andog
responded to her shouts and brought Samuel to the Opon Emergency Hospital where
he died on arrival. According to the necropsy report,
5
Samuel, who was thirty years
old, died due to massive hemorrhage secondary to the stab wound on the abdomen.
Said wound is described in the report as follows:
Stab wound, with herniation of omental issues; elliptical, 3.5 cms. long, running
vertically downward, edges clean-cut, superior extremity rounded, inferior extremity
sharp, located at the abdominal region, right anterior aspect, 7.5 cms. to the right of
anterior median line and 107.0 cms. above right heel, directed backward, upward and
medially, involving skin and the underlying soft tissues, penetrating right peritoneal
cavity, incising inferior vena cava, attaining an approximate depth of 15.0 cms.
The death weapon, a kitchen knife made of stainless steel and with a red-colored
handle, was recovered from the house of Luis Toring. According to Patrolman
Pantaleon P. Amodia, the police found out during the investigation that Luis Toring had
left the weapon with "Camilo" Berdin. When the police confronted Berdin, the latter led
them to the house of Toring which Berdin entered. When he emerged from the house,
Berdin handed the weapon to the police.
6
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An information for murder was filed against Toring. Subsequently, however, the
information was amended to include Diosdado Berdon and Carmelo Berdin as
defendants. The three were charged therein with conspiracy in killing Samuel Augusto
in a treacherous manner. Berdon, it was alleged, "conveniently supplied the death
weapon" which Toring used in stabbing Samuel while Berdin allegedly concealed the
weapon to prevent its discovery by the police.
7
The crime was purportedly committed
with the attendance of the generic aggravating circumstances of evident premeditation
and nighttime.chanroblesvi rtualawlibrary chanrobles vi rtual law li brary
All three accused pleaded not guilty to the offense charged. At the trial, Luis Toring,
alias "Lowe," testified that he was not the president of the kwaknit gang. He went to
the benefit dance in the company of Venir Ybaez, Joel Escobia, Ely Amion, Abel
Pongase, Abe Berdon, Genio Berdin and Alex Augusta. Toring and his group were
standing outside the dancing area when, at around eleven o'clock in the evening,
Samuel, a known tough guy ("maldito"), approached them and held Venir Ybanez by
his collar. Then Samuel thrust the butt of his shotgun on the chin of Joel
Escobia,
8
proceeded to another group who were also gangmates of Toring, and again,
with the barrel of his shotgun, hit Eli Amion's chest several times.
9
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Reacting to what he saw, Toring got his kitchen knife which was tucked in his waist,
approached Samuel from the latter's right side and stabbed him once as he did not
intend to kill Samuel. Toring then ran towards the dark portion of the area and went
home. There, he left the knife and proceeded to the hut by the fishpond of one
Roman.
10
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Toring was sleeping in the hut with his older brother, Arsenio, when, at around 4:00
o'clock in the morning of May 26, 1980, Edgar Augusto, the younger brother of
Samuel, shot them. Arsenio was hit on the left leg and he stayed two months in the
hospital for the treatment of his wound.
11
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At 2:00 o'clock in the afternoon of May 26, 1980, Toring surrendered to two Philippine
Constabulary soldiers.
12
They brought him to the police of Lapu-lapu City on May 28,
1980.
13
When the police asked him about the knife he used in stabbing Samuel,
Toring told them to go to Carmelo Berdin because he was the only person who knew
where Toring hid it.
14
Asserting that he was the one who returned the knife to his own
house, Toring testified that Carmelo Berdin used to see him hide his weapons upstairs
because Berdin was a frequent visitor of his.
15
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For his part, Carmelo, a 5 feet tall, asthmatic 17-year-old whom the court described as
"lilliputian," admitted that he witnessed the stabbing incident but he ran away with his
group immediately after because he was afraid he might be shot by Samuel. He was
with Toring when the latter hid the still bloodied knife under a trunk in Toring's house.
He was familiar with the hiding place of the knife because Toring showed it to him and
there were times when he would get the knife there upon Toring's request. Carmelo
corroborated Toring's testimony that on that fateful night, Toring carried the knife
tucked at the back of his waistline.
16
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In court, Toring testified that he never saw Diosdado at the dance.
17
However, in his
sworn statement dated May 28, 1980 and marked as Exhibit D, Toring stated that he
took the knife from Diosdado to stab Samuel. Confronted with said statement,
Diosdado said that when he asked Toring why he implicated him, Toring allegedly
replied that he "included" Diosdado because of the case the barangay brigade had filed
against Toring.
18
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According to Diosdado, he did not attend the May 25 dance because of the trouble
which erupted during the dance the night before. He did not have anything to do with
the stabbing of Samuel. He admitted, however, that a week after the incident, his
family went to barrio Andaliw Ronda, Cebu, for their yearly visit to his father-in-law.
He stayed there for fifteen days and would have stayed longer had not his mother
informed him of the subpoena addressed to him.
19
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On October 28, 1980, a day after the last day of hearing, the lower court
20
rendered
a decision discrediting Toring's claim that the killing of Samuel was justified because it
was done in defense of a stranger pursuant to Article 11 (3) of the Revised Penal
Code. The lower court found that Toring was the "aggressor acting in retaliation or
revenge by reason of a running feud or long-standing grudge" between the kwaknit
gang and the group of Samuel, who, being the son of the barangay captain, was a
"power to be reckoned with." It mentioned the fact that a year before the incident in
question, Toring was shot by Edgar Augusto (Samuel's brother) and hence, in his
desire to avenge himself, Toring, "needed but a little excuse to do away with the
object of his hatred.
21
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The lower court could not believe that Samuel brought along his shotgun to the dance
because he was "not reputed to be a public official or functionary entitled to possess a
firearm." Otherwise, the police and the barangay tanod would have arrested him. The
court surmised that if Samuel really carried a shotgun, he certainly must have had a
permit or license to possess the same.chanroblesvi rtualawlibrary chanrobles virtual law li brary
It noted that while Toring testified that Samuel was aiming his shotgun at the chest of
Ely Amyon (Amion), prosecution witness Joel Escobia claimed that he was at the
receiving end of Samuel's thrusts with the butt of his shotgun. To the court, such
discrepancy is fatal to the defense because in appreciating the justifying circumstance
of defense of a stranger, the court must know "with definiteness the identity of the
stranger defended by the accused."
22
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The lower court, however, ruled out the existence of conspiracy among the three
accused on the ground that there was no proof on what they were whispering about
when Felix saw them. Accordingly, it held that the accused have individual or separate
liabilities for the killing of Samuel: Toring, as a principal, Diosdado Berdon as an
accomplice by his act of giving Toring the knife, and Carmelo Berdin as an accessory
for concealing the weapon. It considered treachery as the qualifying circumstance to
the killing, found no proof as to allegation of evident premeditation but appreciated
nighttime as an aggravating circumstance. It meted the accused the penalties
mentioned above.chanroblesvi rtualawlibrary chanrobles virtual law l ibrary
All three accused appealed.chanroblesvirtualawl ibrary chanrobles vi rtual law library
Toring seeks his exoneration by contending that his assault on Samuel was justified
because he acted in defense of his first cousin, Joel Escobia. Article 11 (3) of the
Revised Penal Code provides that no criminal liability is incurred by anyone "who acts
in defense of ... his relatives ... by consanguinity within the fourth civil degree,
provided that the first and second requisites prescribed in the next preceding
circumstance are present, and the further requisite, in case the provocation was given
by the person attacked, that the one making defense had no part therein." The first
and second requisites referred to are enumerated in paragraph (b) in the same article
on selfdefense as: (a) unlawful aggression, and (b) lack of sufficient provocation on
the part of the person defending himself.chanroblesvirtualawl ibrary chanrobles vi rtual law library
Joel Escobia, whose chin was hit with the butt of Samuel's shotgun, is the first cousin
of Toring their fathers being brothers,
23
although no explanation appears on record
why they have different surnames. At any rate, this allegation on relationship was not
rebutted by the prosecution.chanroblesvi rtualawlibrary chanrobles virtual law l ibrary
The appreciation of the justifying circumstance of defense of a relative, however,
hinges in this case on the presence of unlawful aggression on the part of the victim.
Corollarily, the claim of Toring that Samuel was, at the time of the assault, carrying a
shotgun to intimidate Toring's group must be proven.chanroblesvirtualawl ibrary chanrobles vi rtual law library
Understandably, no prosecution witness attested that they saw Samuel with a firearm.
The prosecution even recalled to the witness stand Samuel's widow who asserted that
her husband did not own any firearm.
24
Going along with the prosecution's evidence,
the lower court arrived at the rather gratuitous conjecture that Samuel could not have
had a shotgun with him because no one without a permit would carry a firearm
without risking arrest by the police or the barangay tanod. At the same time, however,
the lower court described Samuel as the son of the barangay captain who "had the run
of the place and had his compelling presence felt by all and " sundry."
25
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While matters dealing with the credibility of witnesses and appreciation of evidence
are primarily the lower court's province, this Court has the power to determine
whether in the performance of its functions, the lower court overlooked certain
matters which may have a substantial effect in the resolution of a case.
26
Defense
witness Joel Escobia was, besides Toring, the only witness whose sworn statement was
taken by the police on May 26, 1980, the day after the fatal assault on Samuel.chanrobl esvirtualawli brary chanrobles vi rtual law library
In his sworn statement,
27
Escobia attested that as he was about to dance with a girl,
Samuel stopped him, pointed his shotgun at him, took a bullet from his jacket pocket,
showed it to Escobia and asked him, "Do you like this, Dong?" to which Escobia
replied, "No, Noy I do not like that." Samuel then placed the bullet in the shotgun and
was thus pointing it at Escobia when Toring came from behind Samuel and stabbed
the latter. Even on cross-examination at the trial, Escobia did not depart from his
statement. In fact he added that Samuel pointed the shotgun at his chin and told him
to eat the bullet.
28
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There is no reason to doubt Joel Escobia's assertion of Samuel's unlawful aggression
inasmuch as his sworn statement
29
and testimony in court had not been successfully
discredited by the prosecution which also failed to prove that Joel had reason to
prevaricate to favor Toring.chanroblesvirtualawl ibrary chanrobles vi rtual law library
The presence of unlawful aggression on the part of the victim and the lack of proof of
provocation on the part of Toring notwithstanding, full credence cannot be given, to
Toring's claim of defense of a relative. Toring himself admitted in court
30
as well as in
his sworn statement
31
that in 1979, he was shot with a .22 caliber revolver by Edgar
Augusto, Samuel's brother. It cannot be said, therefore, that in attacking Samuel,
Toring was impelled by pure compassion or beneficence or the lawful desire to avenge
the immediate wrong inflicted on his cousin. Rather, he was motivated by revenge,
resentment or evil motive
32
because of a "running feud" between the Augusto and the
Toring brothers. As the defense itself claims, after the incident subject of the instant
case occurred, Toring's brother, Arsenio, was shot on the leg by Edgar Augusto.
Indeed, vendetta appears to have driven both camps to commit unlawful acts against
each other. Hence, under the circumstances, to justify Toring's act of assaulting
Samuel Augusto would give free rein to lawlessness.chanrobl esvirtualawli brary chanrobles vi rtual law library
The lower court correctly considered the killing as murder in view of the presence of
the qualifying circumstance of treachery. The suddenness of the assault rendered
Samuel helpless even to use his shotgun. We also agree with the lower court that
conspiracy and evident premeditation were not proven beyond reasonable doubt.
Moreover, nighttime cannot be considered as an aggravating circumstance. There is no
proof that it was purposely sought to insure the commission of the crime or prevent its
discovery.
33
However, Toring should be credited with the privileged mitigating
circumstance of incomplete defense of relative and the generic mitigating
circumstance of voluntary surrender.chanroblesvirtualawl ibrary chanrobles vi rtual law library
The penalty for murder under Article 248 of the Revised Penal Code being reclusion
temporal maximum to death, the imposable penalty isprision mayor maximum to
reclusion temporal medium in view of the presence of the mitigating circumstances of
incomplete defense of relative and voluntary surrender (Art. 64 [5]). Applying the
Indeterminate Sentence Law, the proper penalty to be meted on Toring
isprision correctional maximum as minimum to prision mayor maximum as maximum
penalty.chanroblesvi rtualawlibrary chanrobles virtual law l ibrary
On the culpability of Diosdado Berdon, the Court holds that his defense of alibi cannot
be sustained in the absence of proof that it was physically impossible for him to be at
the scene of the crime when it was committed.
34
His house was only a kilometer away
from the place where he supplied the knife to Toring.
35
That distance does not
preclude the possibility that Diosdado aided Toring in the perpetration of the crime as
it could be negotiated in just a few minutes by merely walking.
36
Moreover, his alibi
was uncorroborated as it was founded only on his own testimony and what appears as
a self-exonerating affidavit.
37
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But what pins culpability on Diosdado were the testimonies of at least two prosecution
witnesses who positively identified him as the one who gave Toring the knife. Motive,
therefore, has become immaterial in the face of such positive identification
38
and
hence, even if it were true that he was not a member of the kwaknit gang, his
participation in the killing has been proven beyond reasonable doubt. Added to this is
the fact that Toring himself in his sworn statement before the police pointed to him as
the source of the knife.
39
Verily, Toting could not have implicated him because of the
incomprehensible reason that a case had been filed against Toring before the
barangay brigade.chanroblesvi rtualawlibrary chanrobles virtual law l ibrary
Pursuant to Article 52 of the Revised Penal Code, as an accomplice by his previous act
of supplying Toring the death weapon, Diosdado Berdon should be meted the penalty
of prision mayor maximum to reclusion temporal medium which is the penalty next
lower in degree toreclusion temporal maximum to death, the penalty prescribed for
murder by Article 248 (Article 6 [3]). There being no mitigating or aggravating
circumstances, the penalty should be in its medium period or reclusion
temporal minimum (Article 64 [1]). Applying the Indeterminate Sentence Law, the
minimum penalty should be taken from prision mayor minimum while the maximum
penalty should be within the period of reclusion temporal minimum.chanroblesvi rtualawlibrary chanrobles vi rtual law li brary
With regards to Carmelo Berdin, his culpability as an accessory to the murder has not
been proven beyond reasonable doubt. The fact that he knew where Toring hid the
knife does not imply that he concealed it to prevent its discovery (Article 19 [2]).
There simply is no proof to that effect. On the contrary, Luis Toring in his sworn
statement and testimony during the trial testified that after stabbing the victim, he ran
away and went to his house to hide the murder weapon. Being a close friend of Toring
and a frequent visitor to the latter's house, it is not impossible for Carmelo Berdin to
know where Toring hid his knives. Significantly, Carmelo readily acceded to the
request of police officers to lead them to the place where Toring kept the knife. He
willingly retrieved it and surrendered it to the police, a behavior we find inconsistent
with guilt.chanroblesvi rtualawlibrary chanrobles vi rtual law li brary
WHEREFORE, the decision of the lower court is hereby affirmed insofar as it convicts
Luis Toring as principal in the murder of Samuel Augusto and Diosdado Berdon as an
accomplice thereto.chanroblesvi rtualawl ibrary chanrobles vi rtual law li brary
The lower court's decision is modified as follows: chanrobles virtual law li brary
(a) Luis Toring shall be imposed the indeterminate penalty of six (6) years of prision
correccional maximum as minimum to twelve (12) years of prision mayor maximum as
maximum; chanrobles virtual law l ibrary
(b) Diosdado Berdon shall suffer the indeterminate penalty of six (6) years and one
(1) day of prision mayor minimum as minimum to twelve (12) years and one (1) day
of reclusion temporal minimum as maximum; chanrobles vi rtual law library
(c) Carmelo Berdin is acquitted as an accessory to the murder of Samuel Augusto,
and chanrobles virtual law l ibrary
(d) Luis Toring and Diosdado Berdon shall jointly and severally pay the heirs of
Samuel Augusto an indemnity of thirty thousand pesos (P30,000.00). Costs against
appellants Toring and Berdon.chanroblesvirtualawl ibrary chanrobles vi rtual law library
SO ORDERED.
Gutierrez, Jr. and Bidin, JJ., concur.chanroblesvi rtualawlibrary chanrobles vi rtual law li brary
Feliciano, J., is on leave.
chanrobles virtual law library


Endnotes:
1 Rollo, pp. 24-25.chanrobles vi rtual law library
2 TSN, September 23, 1980, p. 30.chanrobles virtual law l ibrary
3 TSN, supra, pp. 37-38.chanrobles virtual law li brary
4 TSN, October 14, 1980, pp. 35-37.chanrobles virtual law l ibrary
5 Exhibit E.chanrobles vi rtual law library
6 TSN, October 15, 1980, pp. 23-24.chanrobles virtual law l ibrary
7 Rollo, pp. 8-9.chanrobles virtual law l ibrary
8 TSN, October 22, 1980, pp. 23-24.chanrobles virtual law l ibrary
9 TSN, supra, pp. 31-32.chanrobles virtual law li brary
10 TSN, supra, pp. 33-39.chanrobles vi rtual law library
11 TSN, supra, pp. 68-70.chanrobles vi rtual law library
12 TSN, supra, pp. 41-42.chanrobles vi rtual law library
13 TSN, October 13, 1980, p. 7.chanrobles vi rtual law library
14 TSN, October 22, 1980, pp. 42-43.chanrobles virtual law li brary
15 TSN, supra, pp. 79-81.chanrobles vi rtual law library
16 TSN, October 24, 1980, pp. 19-20; 24-25.chanrobles vi rtual law library
17 TSN, October 22, 1980, p. 93.chanrobles virtual law library
18 TSN, October 24, 1980, pp. 7-8.chanrobles vi rtual law library
19 TSN, October 24, 1980, pp. 5-6.chanrobles vi rtual law library
20 Presided by Judge Regino Hermosisima, Jr.chanrobles vi rtual law library
21 Decision, pp. 11-12.chanrobles virtual law l ibrary
22 Decision, p. 13.chanrobles virtual law l ibrary
23 TSN, October 23, 1980, p. 32.chanrobles virtual law library
24 TSN, October 27, 1980, p. 15.chanrobles virtual law library
25 Decision, p. 4.chanrobles vi rtual law library
26 People vs. Ligon, G.R. No. 74041, July 29, 1987, 152 SCRA 419, 426.chanrobles vi rtual law library
27 Exhibit G, or Exhibit 2-Toring and Exhibit 3-Berdon and Berdin.chanrobles virtual law l ibrary
28 TSN, October 23, 1980, p. 35.chanrobles virtual law library
29 Exhibit G.chanrobles vi rtual law library
30 TSN, October 22, 1980, pp. 74-75.chanrobles virtual law li brary
31 Exhibit C.chanrobles vi rtual law library
32 See: People vs. Punzalan, G.R. No. 54562, August 6, 1987, 153 SCRA 1, 12.chanrobles virtual law l ibrary
33 People vs. Beltran, L-38049, July 15, 1985, 137 SCRA 508.chanrobles vi rtual law library
34 People vs. Renejane, G.R. Nos. 76954-55, February 26, 1988, 158 SCRA 258, 268.chanrobles vi rtual law li brary
35 TSN, October 24, 1980, p. 9.chanrobles vi rtual law library
36 People vs. Santillan, G.R. No. 68331, January 29, 1988, 157 SCRA 534, 539.chanrobles virtual law l ibrary
37 Exhibit 4.chanrobles vi rtual law library
38 People vs. Aquillano, G.R. No. 72318, April 30, 1987, 149 SCRA 442.chanrobles virtual law l ibrary
39 Exhibit D.