EN BANC asking for forgiveness; and when Avelina's mother made an attempt to beat Amado, her
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,
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.
1
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
2
sentenced to an indeterminate penalty ranging from two months and one day of arresto mayor,
as minimum, to two years, four months, and one day of prision correccional, as maximum,
with the accessory penalties prescribed by law, to indemnify the heirs of the deceased Amado
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.
EN BANC
G.R. Nos. L-33466-67 April 20, 1983
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MAMERTO NARVAEZ, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.
MAKASIAR, J.:
This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch I,
in Criminal Cases Nos. 1815 and 1816 for murder which, after a joint trial, resulted in the
conviction of the accused in a decision rendered on September 8, 1970, with the following
pronouncement:
Thus, we have a crime of MURDER qualified by treachery with the
aggravating circumstance of evident premeditation offset by the mitigating
circumstance of voluntary surrender. The proper penalty imposable,
therefore, is RECLUSION PERPETUA (Arts. 248 and 64, Revised Penal
Code).
Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of
the crime of murder,
(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION
PERPETUA, to indemnify the heirs of the deceased Davis Q. Fleischer in
the sum of P 12,000.00 as compensatory damages, P 10,000.00 as moral
damages, P 2,000.00 as attorney's fees, the offended party having been
represented by a private prosecutor, and to pay the costs;
(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION
PERPETUA, to indemnify the heirs of the deceased Flaviano Rubia in the
sum of P12,000.00 as compensatory damages, P10,000.00 as moral
damages, P2,000.00 as attorney's fees, the offended party having been
represent by a private prosecutor, and to pay the costs (p. 48, rec.).
The facts are summarized in the People's brief, as follows:
At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus
Verano and Cesar Ibanez together with the two deceased Davis Fleischer
and Flaviano Rubia, were fencing the land of George Fleischer, father of
deceased Davis Fleischer. The place was in the boundary of the highway
and the hacienda owned by George Fleischer. This is located in the
municipality of Maitum, South Cotabato. At the place of the fencing is the
house and rice drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n.,
Pieza II). At that time, appellant was taking his rest, but when he heard
that the walls of his house were being chiselled, he arose and there he saw
the fencing going on. If the fencing would go on, appellant would be
prevented from getting into his house and the bodega of his ricemill. So he
addressed the group, saying 'Pare, if possible you stop destroying my
house and if possible we will talk it over what is good,' addressing the
deceased Rubia, who is appellant's compadre. The deceased Fleischer,
however, answered: 'No, gademit, proceed, go ahead.' Appellant
apparently lost his equilibrium and he got his gun and shot Fleischer,
hitting him. As Fleischer fell down, Rubia ran towards the jeep, and
knowing there is a gun on the jeep, appellant fired at Rubia, likewise
hitting him (pp. 127-133, t.s.n., Defense transcript). Both Fleischer and
Rubia died as a result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9,
Appellant's Brief, p.161, rec.).
It appears, however, that this incident is intertwined with the long drawn out legal battle
between the Fleischer and Co., Inc. of which deceased Fleischer was the secretary-treasurer
and deceased Rubia the assistant manager, on the one hand, and the land settlers of Cotabato,
among whom was appellant.
From the available records of the related cases which had been brought to the Court of
Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this Court on certiorari (G.R. No. L-
26757 and L-45504), WE take judicial notice of the following antecedent facts:
Appellant was among those persons from northern and central Luzon who went to Mindanao
in 1937 and settled in Maitum, a former sitio of Kiamba and now a separate municipality of
South Cotabato. He established his residence therein, built his house, cultivated the area, and
was among those who petitioned then President Manuel L. Quezon to order the subdivision of
the defunct Celebes Plantation and nearby Kalaong Plantation totalling about 2,000 hectares,
for distribution among the settlers.
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American
landowner in Negros Oriental, filed sales application No. 21983 on June 3, 1937 over the same
area formerly leased and later abandoned by Celebes Plantation Company, covering
1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in
1941 but the survey report was not submitted until 1946 because of the outbreak of the second
world war. According to the survey, only 300 hectares Identified as Lots Nos. 22, 26 and 38,
Ps. 176 Kiamba, were set aside for Sales Application No. 21983, while the rest were
subdivided into sublots of 5 to 6 hectares each to be distributed among the settlers (pp. 32-33,
G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer and Company was declared
open for disposition, appraised and advertised for public auction. At the public auction held in
Manila on August 14, 1948, Fleischer and Company was the only bidder for P6,000.00. But
because of protests from the settlers the corresponding award in its favor was held in
abeyance, while an investigator was sent by the Director of Lands to Kiamba in the person of
Atty. Jose T. Gozon Atty. Gozon came back after ten days with an amicable settlement signed
by the representative of the settlers. This amicable settlement was later repudiated by the
settlers, but the Director of Lands, acting upon the report of Atty. Gozon, approved the same
and ordered the formal award of the land in question to Fleischer and Company. The settlers
3
appealed to the Secretary of Agriculture and Natural Resources, who, however, affirmed the
decision in favor of the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of
Cotabato which then consisted only of one sala, for the purpose of annulling the order of the
Secretary of Agriculture and Natural Resources which affirmed the order of the Director of
Lands awarding the contested land to the company. The settlers as plaintiffs, lost that case in
view of the amicable settlement which they had repudiated as resulting from threats and
intimidation, deceit, misrepresentation and fraudulent machination on the part of the company.
They appealed to the Court of Appeals (CA-G.R. No. 28858-R) which likewise affirmed on
August 16, 1965 the decision of the Court of First Instance in favor of the company.
This resulted in the ouster of the settlers by an order of the Court of First Instance dated
September 24, 1966, from the land which they had been occupying for about 30 years. Among
those ejected was the appellant who, to avoid trouble, voluntarily dismantled his house, built
in 1947 at a cost of around P20,000.00, and transferred to his other house which he built in
1962 or 1963 near the highway. The second house is not far from the site of the dismantled
house. Its ground floor has a store operated by Mrs. June Talens who was renting a portion
thereof. He also transferred his store from his former residence to the house near the highway.
Aside from the store, he also had a rice mill located about 15 meters east of the house and a
concrete pavement between the rice mill and the house, which is used for drying grains and
copra.
On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa
and other leaders filed Civil Case No. 755 in the Court of First Instance of Cotabato, Branch I.
to obtain an injunction or annulment of the order of award with prayer for preliminary
injunction. During the pendency of this case, appellant on February 21, 1967 entered into a
contract of lease with the company whereby he agreed to lease an area of approximately 100
to 140 square meters of Lot No. 38 from the company (Exh. 9, p. 1, Folder of Exhibits for
Defense) for a consideration of P16.00 monthly. According to him, he signed the contract
although the ownership of the land was still uncertain, in order to avoid trouble, until the
question of ownership could be decided. He never paid the agreed rental, although he alleges
that the milling job they did for Rubia was considered payment. On June 25, 1968, deceased
Fleischer wrote him a letter with the following tenor:
You have not paid six months rental to Fleischers & Co., Inc. for that
portion of land in which your house and ricemill are located as per
agreement executed on February 21, 1967. You have not paid as as even
after repeated attempts of collection made by Mr. Flaviano Rubia and
myself.
In view of the obvious fact that you do not comply with the agreement, I
have no alternative but to terminate our agreement on this date.
I am giving you six months to remove your house, ricemill, bodega, and
water pitcher pumps from the land of Fleischers & Co., Inc. This six-
month period shall expire on December 31, 1966.
In the event the above constructions have not been removed within the six-
month period, the company shall cause their immediate demolition
(Exhibit 10, p. 2, supra).
On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot 38
by putting bamboo posts along the property line parallel to the highway. Some posts were
planted right on the concrete drier of appellant, thereby cutting diagonally across its center
(pp. 227-228, t.s.n., Vol. 2), with the last post just adjacent to appellant's house (p. 231,
t.s.n., supra). The fence, when finished, would have the effect of shutting off the accessibility
to appellant's house and rice mill from the highway, since the door of the same opens to the
Fleischers' side. The fencing continued on that fateful day of August 22, 1968, with the
installation of four strands of barbed wire to the posts.
At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his farm
all morning, was awakened by some noise as if the wall of his house was being chiselled.
Getting up and looking out of the window, he found that one of the laborers of Fleischer was
indeed chiselling the wall of his house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased
Rubia was nailing the barbed wire and deceased Fleischer was commanding his laborers. The
jeep used by the deceased was parked on the highway. The rest of the incident is narrated in
the People's Brief as above-quoted. Appellant surrendered to the police thereafter, bringing
with him shotgun No. 1119576 and claiming he shot two persons (Exh. Pp. 31, Defense
Exhibits).
Appellant now questions the propriety of his conviction, assigning the following errors:
First Assignment of Error: That the lower court erred in convicting
defendant-appellant despite the fact that he acted in defense of his person;
and
Second Assignment of Error: That the court a quo also erred in convicting
defendant-appellant although he acted in defense of his rights (p. 20 of
Appellant's Brief, p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed. Appellant admitted having
shot them from the window of his house with the shotgun which he surrendered to the police
authorities. He claims, however, that he did so in defense of his person and of his rights, and
therefore he should be exempt from criminal liability.
Defense of one's person or rights is treated as a justifying circumstance under Art. 11, par. 1 of
the Revised Penal Code, but in order for it to be appreciated, the following requisites must
occur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel
it;
Third. Lack of sufficient provocation on the part of the person defending
himself (Art. 11, par. 1, Revised Penal Code, as amended).
The aggression referred to by appellant is the angry utterance by deceased Fleischer of the
following words: "Hindi, sigue, gademit, avante", in answer to his request addressed to
his compadre, the deceased Rubia, when he said, "Pare, hinto mona ninyo at pag-usapan natin
kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This was in reaction to his having been
awakened to see the wall of his house being chiselled. The verbal exchange took place while
the two deceased were on the ground doing the fencing and the appellant was up in his house
looking out of his window (pp. 225-227, supra). According to appellant, Fleischer's remarks
caused this reaction in him: "As if, I lost my senses and unknowingly I took the gun on the bed
and unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr. Fleischer" (p. 132,
supra). As for the shooting of Rubia, appellant testified:
When I shot Davis Fleischer, Flaviano Rubia was nailing and upon
hearing the shot, Mr. Rubia looked at Mr. Fleischer and when Mr.
Fleischer fell down, Mr. Rubia ran towards the jeep and knowing that
there was a firearm in the jeep and thinking that if he will take that firearm
he will kill me, I shot at him (p. 132, supra, Emphasis supplied).
The foregoing statements of appellant were never controverted by the prosecution. They
claim, however, that the deceased were in lawful exercise of their rights of ownership over the
land in question, when they did the fencing that sealed off appellant's access to the highway.
4
A review of the circumstances prior to the shooting as borne by the evidence reveals that five
persons, consisting of the deceased and their three laborers, were doing the fencing and
chiselling of the walls of appellant's house. The fence they were putting up was made of
bamboo posts to which were being nailed strands of barbed wire in several layers. Obviously,
they were using tools which could be lethal weapons, such as nail and hammer, bolo or
bamboo cutter, pliers, crowbar, and other necessary gadgets. Besides, it was not disputed that
the jeep which they used in going to the place was parked just a few steps away, and in it there
was a gun leaning near the steering wheel. When the appellant woke up to the sound of the
chiselling on his walls, his first reaction was to look out of the window. Then he saw the
damage being done to his house, compounded by the fact that his house and rice mill will be
shut off from the highway by the fence once it is finished. He therefore appealed to
his compadre, the deceased Rubia, to stop what they were doing and to talk things over with
him. But deceased Fleischer answered angrily with 'gademit' and directed his men to proceed
with what they were doing.
The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would
have resulted in the further chiselling of the walls of appellant's house as well as the closure of
the access to and from his house and rice mill-which were not only imminent but were actually
in progress. There is no question, therefore, that there was aggression on the part of the
victims: Fleischer was ordering, and Rubia was actually participating in the fencing. This was
indeed aggression, not on the person of appellant, but on his property rights.
The question is, was the aggression unlawful or lawful? Did the victims have a right to fence
off the contested property, to destroy appellant's house and to shut off his ingress and egress to
his residence and the highway?
Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land or
tenements.
However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of
the order of award to Fleischer and Company was still pending in the Court of First Instance
of Cotabato. The parties could not have known that the case would be dismissed over a year
after the incident on August 22, 1968, as it was dismissed on January 23, 1970 on ground
of res judicata, in view of the dismissal in 1965 (by the Court of Appeals) of Civil Case No.
240 filed in 1950 for the annulment of the award to the company, between the same parties,
which the company won by virtue of the compromise agreement in spite of the subsequent
repudiation by the settlers of said compromise agreement; and that such 1970 dismissal also
carried the dismissal of the supplemental petition filed by the Republic of the Philippines on
November 28, 1968 to annul the sales patent and to cancel the corresponding certificate of title
issued to the company, on the ground that the Director of Lands had no authority to conduct
the sale due to his failure to comply with the mandatory requirements for publication. The
dismissal of the government's supplemental petition was premised on the ground that after its
filing on November 28, 1968, nothing more was done by the petitioner Republic of the
Philippines except to adopt all the evidence and arguments of plaintiffs with whom it joined as
parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment in
Civil Case No. 755 filed on November 14, 1966 and his execution of the contract of lease on
February 21, 1967 was just to avoid trouble. This was explained by him during cross-
examination on January 21, 1970, thus:
It happened this way: we talked it over with my Mrs. that we better rent
the place because even though we do not know who really owns this
portion to avoid trouble. To avoid trouble we better pay while waiting for
the case because at that time, it was not known who is the right owner of
the place. So we decided until things will clear up and determine who is
really the owner, we decided to pay rentals (p. 169, t.s.n., Vol.6).
In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, Defense
Exhibits) within which to vacate the land. He should have allowed appellant the peaceful
enjoyment of his properties up to that time, instead of chiselling the walls of his house and
closing appellant's entrance and exit to the highway.
The following provisions of the Civil Code of the Philippines are in point:
Art. 536. In no case may possession be acquired through force or
intimidation as long as there is a possessor who objects thereto. He who
believes that he has an action or a right to deprive another of the holding
of a thing must invoke the aid of the competent court, if the holder should
refuse to deliver the thing.
Art. 539. Every possessor has a right to be respected in his possession; and
should he be disturbed therein he shall be protected in or restored to said
possession by the means established by the laws and the Rules of Court
(Articles 536 and 539, Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had no right to destroy or cause
damage to appellant's house, nor to close his accessibility to the highway while he was
pleading with them to stop and talk things over with him. The assault on appellant's property,
therefore, amounts to unlawful aggression as contemplated by law.
Illegal aggression is equivalent to assault or at least threatened assault of
immediate and imminent kind (People vs. Encomiendas, 46 SCRA 522).
In the case at bar, there was an actual physical invasion of appellant's property which he had
the right to resist, pursuant to Art. 429 of the Civil Code of the Philippines which provides:
Art. 429. The owner or lawful possessor of a thing has the right to exclude
any person from the enjoyment and disposal thereof. For this purpose, he
may use such force as may be reasonably necessary to repel or prevent an
actual or threatened unlawful physical invasion or usurpation of his
property (Emphasis supplied).
The reasonableness of the resistance is also a requirement of the justifying circumstance of
self-defense or defense of one's rights under paragraph 1 of Article 11, Revised Penal Code.
When the appellant fired his shotgun from his window, killing his two victims, his resistance
was disproportionate to the attack.
WE find, however, that the third element of defense of property is present, i.e., lack of
sufficient provocation on the part of appellant who was defending his property. As a matter of
fact, there was no provocation at all on his part, since he was asleep at first and was only
awakened by the noise produced by the victims and their laborers. His plea for the deceased
and their men to stop and talk things over with him was no provocation at all.
Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the
elements for justification are present. He should therefore be held responsible for the death of
his victims, but he could be credited with the special mitigating circumstance of incomplete
defense, pursuant to paragraph 6, Article 13 of the Revised Penal Code.
The crime committed is homicide on two counts. The qualifying circumstance of treachery
cannot be appreciated in this case because of the presence of provocation on the part of the
deceased. As WE held earlier in People vs. Manlapaz (55 SCRA 598), the element of a sudden
unprovoked attack is therefore lacking.
Moreover, in order to appreciate alevosia, "it must clearly appear that the method of assault
adopted by the aggressor was deliberately chosen with a special view to the accomplishment
of the act without risk to the assailant from any defense that the party assailed might have
5
made. This cannot be said of a situation where the slayer acted instantaneously ..." (People vs.
Caete, 44 Phil. 481).
WE likewise find the aggravating (qualifying) circumstance of evident premeditation not
sufficiently established. The only evidence presented to prove this circumstance was the
testimony of Crisanto Ibaez, 37 years old, married, resident of Maitum, South Cotabato, and
a laborer of Fleischer and Company, which may be summarized as follows:
On August 20, 1968 (two days before the incident) at about 7:00 A.M., he
was drying corn near the house of Mr. and Mrs. Mamerto Narvaez at the
crossing, Maitum, South Cotabato, when the accused and his wife talked
to him. Mrs. Narvaez asked him to help them, as he was working in the
hacienda. She further told him that if they fenced their house, there is a
head that will be broken. Mamerto Narvaez added 'Noy, it is better that
you will tell Mr. Fleischer because there will be nobody who will break
his head but I will be the one.' He relayed this to Mr. Flaviano Rubia, but
the latter told him not to believe as they were only Idle threats designed to
get him out of the hacienda (pp. 297-303, t.s.n., Vol. 2).
This single evidence is not sufficient to warrant appreciation of the aggravating circumstance
of evident premeditation. As WE have consistently held, there must be "direct evidence of the
planning or preparation to kill the victim, .... it is not enough that premeditation be suspected
or surmised, but the criminal intent must be evidenced by notorious outward acts evincing the
determination to commit the crime" (People vs. Ordioles, 42 SCRA 238). Besides, there must
be a "showing" that the accused premeditated the killing; that the culprit clung to their (his)
premeditated act; and that there was sufficient interval between the premeditation and the
execution of the crime to allow them (him) to reflect upon the consequences of the act"
(People vs. Gida, 102 SCRA 70).
Moreover, the obvious bias of witness Crisanto Ibaez, as a laborer of the deceased Davis
Fleischer, neutralizes his credibility.
Since in the case at bar, there was no direct evidence of the planning or preparation to kill the
victims nor that the accused premeditated the killing, and clung to his premeditated act, the
trial court's conclusion as to the presence of such circumstance may not be endorsed.
Evident premeditation is further negated by appellant pleading with the victims to stop the
fencing and destroying his house and to talk things over just before the shooting.
But the trial court has properly appreciated the presence of the mitigating circumstance of
voluntary surrender, it appearing that appellant surrendered to the authorities soon after the
shooting.
Likewise, We find that passion and obfuscation attended the commission of the crime. The
appellant awoke to find his house being damaged and its accessibility to the highway as well
as of his rice mill bodega being closed. Not only was his house being unlawfully violated; his
business was also in danger of closing down for lack of access to the highway. These
circumstances, coming so near to the time when his first house was dismantled, thus forcing
him to transfer to his only remaining house, must have so aggravated his obfuscation that he
lost momentarily all reason causing him to reach for his shotgun and fire at the victims in
defense of his rights. Considering the antecedent facts of this case, where appellant had thirty
years earlier migrated to this so-called "land of promise" with dreams and hopes of relative
prosperity and tranquility, only to find his castle crumbling at the hands of the deceased, his
dispassionate plea going unheeded-all these could be too much for any man-he should be
credited with this mitigating circumstance.
Consequently, appellant is guilty of two crimes of homicide only, the killing not being
attended by any qualifying nor aggravating circumstance, but extenuated by the privileged
mitigating circumstance of incomplete defense-in view of the presence of unlawful aggression
on the part of the victims and lack of sufficient provocation on the part of the appellant-and by
two generic mitigating circumstance of voluntary surrender and passion and obfuscation.
Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion
temporal. Pursuant to Article 69, supra, the penalty lower by one or two degrees shall be
imposed if the deed is not wholly excusable by reason of the lack of some of the conditions
required to justify the same. Considering that the majority of the requirements for defense of
property are present, the penalty may be lowered by two degrees, i.e., to prision
correccional And under paragraph 5 of Article 64, the same may further be reduced by one
degree, i.e., arresto mayor, because of the presence of two mitigating circumstances and no
aggravating circumstance.
The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan American
World Airways (43 SCRA 397), the award for moral damages was reduced because the
plaintiff contributed to the gravity of defendant's reaction. In the case at bar, the victims not
only contributed but they actually provoked the attack by damaging appellant's properties and
business. Considering appellant's standing in the community, being married to a municipal
councilor, the victims' actuations were apparently designed to humiliate him and destroy his
reputation. The records disclose that his wife, councilor Feliza Narvaez, was also charged in
these two cases and detained without bail despite the absence of evidence linking her to the
killings. She was dropped as a defendant only upon motion of the prosecution dated October
31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on November 4, 1968 (p.
58, CFI rec. of Criminal Case No. 1815).
Moreover, these cases arose out of an inordinate desire on the part of Fleischer and Company,
despite its extensive landholdings in a Central Visayan province, to extend its accumulation of
public lands to the resettlement areas of Cotabato. Since it had the capability-financial and
otherwise-to carry out its land accumulation scheme, the lowly settlers, who uprooted their
families from their native soil in Luzon to take advantage of the government's resettlement
program, but had no sufficient means to fight the big landowners, were the ones prejudiced.
Thus, the moral and material suffering of appellant and his family deserves leniency as to his
civil liability.
Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision
correccional or arrests mayor and fine who has no property with which to meet his civil
liabilities to serve a subsidiary imprisonment at the rate of one (1) day for each P 2.50.
However, the amendment introduced by Republic Act No. 5465 on April 21, 1969 made the
provisions of Art. 39 applicable to fines only and not to reparation of the damage caused,
indemnification of consequential damages and costs of proceedings. Considering that
Republic Act 5465 is favorable to the accused who is not a habitual delinquent, it may be
given retroactive effect pursuant to Article 22 of the Revised Penal Code.
WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
ONLY TWO (2) HOMICIDES, MITIGATED BY THE PRIVILEGED EXTENUATING
CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS BY TWO (2)
GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND
OBFUSCATION, WITHOUT ANY AGGRAVATING CIRCUMSTANCE, APPELLANT IS
HEREBY SENTENCED TO SUFFER AN IMPRISONMENT OF FOUR (4) MONTHS OF
ARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF DAVIS FLEISCHER
AND OF FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS,
WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD FOR
MORAL DAMAGES AND ATTORNEY'S FEES.
6
CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST The evidence shows that at around two o' clock in the morning of 22 December 1995
FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST Buenaventura Wapili was having a high fever and was heard talking insensibly to himself in his
22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS. room. His brother-in-law, Dario Leydan, convinced him to come out of his room and talk to
SO ORDERED. him, but Wapili told Leydan that he could not really understand himself. After a while, Wapili
Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De Castro, Melencio-Herrera, Escolin went back to his room and turned off the lights. Moments later, the lights went on again and
Vasquez and Relova, JJ., concur. Leydan heard a disturbance inside the room, as if Wapili was smashing the furniture. [3] Unable
Aquino, J., is on leave. to pacify Wapili, Leydan called Pastor Bonid of the Alliance Church of Kidapawan to help him
Plana, J., in the result. "pray over" Wapili, but they could not enter the latter's room as he became wild and
violent. Suddenly, Wapili bolted out of his room naked and chased Leydan. Thereafter, Leydan
with the aid of two (2) of his neighbors attempted to tie Wapili with a rope but was unsuccessful
as Wapili was much bigger in built and stronger than anyone of them. [4] Wapili, who appeared
to have completely gone crazy, kept on running without any particular direction.
Thus, Leydan went to the house of policewoman Norma Plando, a neighbor, and asked
for assistance. As Wapili passed by the house of Plando, he banged Plando's vehicle parked
outside. Using a hand-held radio, Plando then contacted SPO1 Ernesto Ulep, SPO1 Edilberto
Espadera and SPO2 Crispin Pillo, all members of the PNP assigned to secure the premises of
the nearby Roman Catholic Church of Kidapawan.[5]
At around four o'clock in the morning of the same day, SPO1 Ulep together with SPO1
Espadera and SPO2 Pillo arrived at the scene on board an Anfra police service jeep. The three
(3) police officers, all armed with M-16 rifles, alighted from the jeep when they saw the naked
Wapili approaching them. The kind of weapon Wapili was armed with is disputed. The police
claimed that he was armed with a bolo and a rattan stool, while Wapili's relatives and neighbors
said he had no bolo, but only a rattan stool.
SPO1 Ulep fired a warning shot in the air and told Wapili to put down his weapons or
they would shoot him. But Wapili retorted "pusila!" ("fire!") and continued advancing towards
the police officers. When Wapili was only about two (2) to three (3) meters away from them,
SPO1 Ulep shot the victim with his M-16 rifle, hitting him in various parts of his body. As the
victim slumped to the ground, SPO1 Ulep came closer and pumped another bullet into his head
and literally blew his brains out.[6]
The post mortem examination of the body conducted by Dr. Roberto A. Omandac,
Municipal Health Officer of Kidapawan, showed that Wapili sustained five (5) gunshot
wounds: one (1) on the right portion of the head, one (1) on the right cheek, one (1) on the
abdomen and two (2) on the right thigh: SHEENT - gunshot wound on the right parietal area
with fractures of the right temporoparietal bones with evisceration of brain tissues, right
zygomatic bone and right mandible, lateral aspect; CHEST AND BACK - with powder burns
on the right posterior chest; ABDOMEN - gunshot wound on the right upper quadrant measuring
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SPO1 ERNESTO 0.5 cm. in diameter (point of entry) with multiple powder burns around the wound and on the
ULEP, accused-appellant. right lumbar area (point of exit). Gunshot wound on the suprapubic area (point of entry);
EXTREMETIES - with gunshot wounds on the right thigh, upper third, anterior aspect
measuring 0.5 cm. in diameter with powder burns (point of entry) and right buttocks measuring
DECISION 0.5 cm. in diameter (point of exit); gunshot wound on the right thigh, upper third, posterolateral
aspect; CAUSE OF DEATH - multiple gunshot wounds.[7]
BELLOSILLO, J.:
Dr. Omandac concluded that the shots were fired at close range, perhaps within twenty-
four (24) inches, judging from the powder burns found around some of the wounds in the body
In the aftermath of an incident where a certain Buenaventura Wapili [1] went berserk at of the victim,[8] and that the wound in the head, which caused the victim's instantaneous death,
Mundog Subdivision, Poblacion Kidapawan, Cotabato, in the early morning of 22 December was inflicted while "the victim was in a lying position."[9]
1995, Police Officer Ernesto Ulep was found guilty of murder and sentenced to death by the The Office of the Ombudsman for the Military filed an Information for murder against
trial court for killing Wapili. Ulep was also ordered to indemnify the heirs of the victim in the SPO1 Ulep. The accused pleaded not guilty to the charge on arraignment, and insisted during
amount of P50,000.00 and to pay the costs.[2]

7
the trial that he acted in self-defense.However, on 28 October 1997, the trial court rendered
judgment convicting the accused of murder and sentencing him to death -
The means employed by the accused to prevent or repel the alleged aggression is not
reasonable because the victim, Buenaventura Wapili, was already on the ground, therefore,
there was no necessity for the accused to pump another shot on the back portion of the victim's
head. Clearly the gravity of the wounds sustained by the victim belies the pretension of the
accused that he acted in self-defense. It indicates his determined effort to kill the victim. It is
established that accused (sic) was already in the ground that would no longer imperil the
accused's life. The most logical option open to the accused was to inflict on the victim such
injury that would prevent the victim from further harming him. The court is not persuaded by
the accused's version because if it is true that the victim attacked him and his life was
endangered - yet his two (2) companions SPO1 Espadera and SPO2 Pillo did not do anything
to help him but just witness the incident - which is unbelievable and unnatural behavior of
police officers x x x x
WHEREFORE, prescinding from the foregoing, judgment is hereby rendered finding the
accused Ernesto Ulep guilty beyond reasonable doubt of the crime of Murder, the accused is
hereby sentenced to suffer the extreme penalty of Death, to indemnify the heirs of
Buenaventura Wapili the amount of P50,000.00 without subsidiary imprisonment in case of
insolvency and to pay the costs.
Death penalty having been imposed by the trial court, the case is now before us on
automatic review. Accused-appellant prays for his acquittal mainly on the basis of his claim that
the killing of the victim was in the course of the performance of his official duty as a police
officer, and in self-defense.
Preliminarily, having admitted the killing of Wapili, accused-appellant assumed the
burden of proving legal justification therefor. He must establish clearly and convincingly how
he acted in fulfillment of his official duty and/or in complete self-defense, as claimed by him;
otherwise, he must suffer all the consequences of his malefaction. He has to rely on the
quantitative and qualitative strength of his own evidence, not on the weakness of the
prosecution; for even if it were weak it could not be disbelieved after he had admitted the
killing.[10]
Before the justifying circumstance of fulfillment of a duty under Art. 11, par. 5, of The
Revised Penal Code may be successfully invoked, the accused must prove the presence of two
(2) requisites, namely, that he acted in the performance of a duty or in the lawful exercise of a
right or an office, and that the injury caused or the offense committed be the necessary
consequence of the due performance of duty or the lawful exercise of such right or office. The
second requisite is lacking in the instant case.
Accused-appellant and the other police officers involved originally set out to perform a
legal duty: to render police assistance, and restore peace and order at Mundog Subdivision
where the victim was then running amuck.There were two (2) stages of the incident at Mundog
Subdivision. During the first stage, the victim threatened the safety of the police officers by
menacingly advancing towards them, notwithstanding accused-appellant's previous warning
shot and verbal admonition to the victim to lay down his weapon or he would be shot. As a
police officer, it is to be expected that accused-appellant would stand his ground. Up to that
point, his decision to respond with a barrage of gunfire to halt the victim's further advance was
justified under the circumstances. After all, a police officer is not required to afford the victim
the opportunity to fight back. Neither is he expected - when hard pressed and in the heat of such
an encounter at close quarters - to pause for a long moment and reflect coolly at his peril, or to
wait after each blow to determine the effects thereof.
However, while accused-appellant is to be commended for promptly responding to the
call of duty when he stopped the victim from his potentially violent conduct and aggressive
behavior, he cannot be exonerated from overdoing his duty during the second stage of the
incident - when he fatally shot the victim in the head, perhaps in his desire to take no chances,
even after the latter slumped to the ground due to multiple gunshot wounds sustained while
charging at the police officers. Sound discretion and restraint dictated that accused-appellant, a
veteran policeman,[11] should have ceased firing at the victim the moment he saw the latter fall
to the ground. The victim at that point no longer posed a threat and was already incapable of
mounting an aggression against the police officers. Shooting him in the head was obviously
unnecessary. As succinctly observed by the trial court -
Once he saw the victim he fired a warning shot then shot the victim hitting him on the
different parts of the body causing him to fall to the ground and in that position the accused
shot the victim again hitting the back portion of the victim's head causing the brain to scatter
on the ground x x x x the victim, Buenaventura Wapili, was already on the ground. Therefore,
there was no necessity for the accused to pump another shot on the back portion of the victim's
head.
It cannot therefore be said that the fatal wound in the head of the victim was a necessary
consequence of accused-appellant's due performance of a duty or the lawful exercise of a right
or office.
Likewise, the evidence at hand does not favor his claim of self-defense. The elements in
order for self-defense to be appreciated are: (a) unlawful aggression on the part of the person
injured or killed by the accused; (b) reasonable necessity of the means employed to prevent or
repel it; and, (c) lack of sufficient provocation on the part of the person defending himself. [12]
The presence of unlawful aggression is a condition sine qua non. There can be no self-
defense, complete or incomplete, unless the victim has committed an unlawful aggression
against the person defending himself.[13] In the present case, the records show that the victim
was lying in a prone position on the ground - bleeding from the bullet wounds he sustained, and
possibly unconscious - when accused-appellant shot him in the head. The aggression that was
initially begun by the victim already ceased when accused-appellant attacked him. From that
moment, there was no longer any danger to his life.
This Court disagrees with the conclusion of the court a quo that the killing of Wapili by
accused-appellant was attended by treachery, thus qualifying the offense to murder. We discern
nothing from the evidence that the assault was so sudden and unexpected and that accused-
appellant deliberately adopted a mode of attack intended to insure the killing of Wapili, without
the victim having the opportunity to defend himself.
On the contrary, the victim could not have been taken by surprise as he was given more
than sufficient warning by accused-appellant before he was shot, i.e., accused-appellant fired a
warning shot in the air, and specifically ordered him to lower his weapons or he would be
shot. The killing of Wapili was not sought on purpose. Accused-appellant went to the scene in
pursuance of his official duty as a police officer after having been summoned for assistance. The
situation that the victim, at the time accused-appellant shot him in the head, was prostrate on the
ground is of no moment when considering the presence of treachery. The decision to kill was
made in an instant and the victim's helpless position was merely incidental to his having been
previously shot by accused-appellant in the performance of his official duty.
8
 There is treachery when the offender commits any of the crimes against persons, from the penalty next lower in degree which is prision correccional, in any of its periods, the
employing means, methods, or forms in the execution thereof which tend directly and specially range of which is six (6) months and one (1) day to six (6) years.
to insure its execution, without risk to himself arising from the defense which the offended party The right to kill an offender is not absolute, and may be used only as a last resort, and
might make.[14] Considering the rule that treachery cannot be inferred but must be proved as under circumstances indicating that the offender cannot otherwise be taken without
fully and convincingly as the crime itself, any doubt as to its existence must be resolved in favor bloodshed. The law does not clothe police officers with authority to arbitrarily judge the
of accused-appellant. Accordingly, for failure of the prosecution to prove treachery to qualify necessity to kill.[18] It may be true that police officers sometimes find themselves in a dilemma
the killing to murder, accused-appellant may only be convicted of homicide. when pressured by a situation where an immediate and decisive, but legal, action is
Indeed, to hold him criminally liable for murder and sentence him to death under the needed.However, it must be stressed that the judgment and discretion of police officers in the
circumstances would certainly have the effect of demoralizing other police officers who may be performance of their duties must be exercised neither capriciously nor oppressively, but within
called upon to discharge official functions under similar or identical conditions. We would then reasonable limits. In the absence of a clear and legal provision to the contrary, they must act in
have a dispirited police force who may be half-hearted, if not totally unwilling, to perform their conformity with the dictates of a sound discretion, and within the spirit and purpose of the
assigned duties for fear that they would suffer the same fate as that of accused-appellant. law.[19] We cannot countenance trigger-happy law enforcement officers who indiscriminately
This brings us to the imposition of the proper penalty. employ force and violence upon the persons they are apprehending. They must always bear in
We find in favor of accused-appellant the incomplete justifying circumstance of mind that although they are dealing with criminal elements against whom society must be
fulfillment of a duty or lawful exercise of a right. Under Art. 69 of The Revised Penal Code, "a protected, these criminals are also human beings with human rights.
penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is WHEREFORE, the appealed Judgment is MODIFIED. Accused-appellant SPO1
not wholly excusable by reason of the lack of some of the conditions required to justify the same ERNESTO ULEP is found guilty of HOMICIDE, instead of Murder, and is sentenced to an
or to exempt from criminal liability in the several cases mentioned in Arts. 11 and 12, provided indeterminate prison term of four (4) years, two (2) months and ten (10) days of prision
that the majority of such conditions be present. The courts shall impose the penalty in the period correccional medium as minimum, to six (6) years, four (4) months and twenty (20) days
which may be deemed proper, in view of the number and nature of the conditions of exemption of prision mayor minimum as maximum. He is further ordered to indemnify the heirs of
present or lacking." Buenaventura Wapili in the amount of P50,000.00, and to pay the costs.
Incomplete justification is a special or privileged mitigating circumstance, which, not only
cannot be offset by aggravating circumstances but also reduces the penalty by one or two SO ORDERED.
degrees than that prescribed by law.[15]Undoubtedly, the instant case would have fallen under
Art. 11, par. 5 of The Revised Penal Code had the two (2) conditions therefor concurred which,
to reiterate: first, that the accused acted in the performance of a duty or the lawful exercise of a
right or office; and second, that the injury or offense committed be the necessary consequence
of the due performance of such duty or the lawful exercise of such right or office. But here, only
the first condition was fulfilled. Hence, Art. 69 is applicable, although its "that the majority of
such conditions be present," is immaterial since there are only two (2) conditions that may be
taken into account under Art. 11, par. 5. Article 69 is obviously in favor of the accused as it
provides for a penalty lower than that prescribed by law when the crime committed is not wholly
justifiable. The intention of the legislature, obviously, is to mitigate the penalty by reason of the
diminution of either freedom of action, intelligence, or intent, or of the lesser perversity of the
offender.[16]
We likewise credit in favor of accused-appellant the mitigating circumstance of voluntary
surrender. The police blotter of Kidapawan Municipal Police Station shows that immediately
after killing Wapili, accused-appellant reported to the police headquarters and voluntarily
surrendered himself.[17]
Article 249 of The Revised Penal Code prescribes for the crime of homicide the penalty
of reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20)
years. There being an incomplete justifying circumstance of fulfillment of a duty, the penalty
should be one (1) degree lower, i.e., from reclusion temporal to prision mayor, pursuant to Art.
69, in relation to Art. 61, par. 2, and Art. 71, of the Code, to be imposed in its minimum period
since accused-appellant voluntarily surrendered to the authorities and there was no aggravating
circumstance to offset this mitigating circumstance. Applying the Indeterminate Sentence Law,
the maximum of the penalty shall be taken from the minimum period of prision mayor, the range
of which is six (6) years and one (1) day to eight (8) years, while the minimum shall be taken

9
 NOEL GUILLERMO yBASILIANO, G.R. No. 153287
Petitioner,
Present:

QUISUMBING, J., Chairperson,

CARPIO MORALES,
- versus - TINGA,
VELASCO, JR., and
BRION, JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent.
June 30, 2008

x -------------------------------------------------------------------------------------------x

DECISION

BRION, J.:

For our review is the petition[1] filed by the petitioner Noel Guillermo y Basiliano (petitioner)
against the decision[2] dated November 15, 2001 and the resolution[3] dated April 5, 2002 of the
Court of Appeals (CA) in CA-G.R. CR No. 24181. The challenged decision[4] affirmed the
decision of the Regional Trial Court (RTC), Branch 18, Roxas City convicting and penalizing
the petitioner for the crime of homicide with an indeterminate sentence of six (6) years of prision
correccional, as minimum, to ten (10) years of prision mayor, as maximum. The assailed
resolution, on the other hand, denied the petitioners motion for reconsideration.

BACKGROUND
For the death of one Winnie Alon (Winnie), the prosecution charged Arnaldo
Socias,[5] Joemar Palma, and the petitioner with the crime of homicide under an Information that
states:

xxx

That at or about 5:40 oclock in the afternoon, on or about July 21,

1996, at Brgy. Poblacion Takas, Municipality of Cuartero, Province of
Capiz, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating[,] and mutually helping
one another, armed with knives and with intent to kill, did then and there
willfully, unlawfully and feloniously assault, attack and stab one WINNIE
ALON y BILLANES, hitting the latter and inflicting multiple stab wounds

10
 on the different parts of his body, which injuries caused his death shortly
thereafter.
That due to the untimely death of Winnie Alon y Billanes[,] his
heirs are entitled to death indemnity in the amount of P50,000.00 and other
damages pursuant to the provisions of the Civil Code of the Philippines.
ACTS CONTRARY TO LAW.[6]
The petitioner and his co-accused were arraigned and pleaded not guilty to the offense charged
with the assistance of their counsel de parte. The prosecution presented Vicente Alon (Vicente)
and Eddie Roque (Eddie) as witnesses in the trial that followed; Dr. Ricardo Betita, Jr. (Dr.
Betita), Baby Lou Felipe (Baby Lou), and the three accused the petitioner, Arnaldo Socias, and
Joemar Palma took the witness stand for the defense.
The material points in the testimony of Vicente were summarized by the trial court in its
decision[7] as follows:
Vicente Alon averred that at 5:40 in the afternoon of July 21,
1996, Winnie Alon, Wilfredo Cabison, Eddie Roque, and him [sic] were at
the public market of Cuartero, at [sic] the restaurant of Melecio Heyres to
eat.[8] Noel Guillermo, Arnel Socias, and Joemar Palma were at the
restaurant drinking beer. Noel Guillermo and Arnel Socias are known to
him since childhood since they come from the same barangay.[9] Joemar
Palma is known to him only recently in that incident.[10]
While sitting at the table inside the restaurant, an altercation
between Arnel Socias and Winnie Alon regarding the cutting of wood by a
chain saw [sic] transpired. Noel Guillermo suddenly took hold of Winnie
Alon and stabbed the latter at the neck three (3) times.[11] Joemar Palma
went to the kitchen and got a knife. Arnel Socias hit him with a bottle of
beer by [sic] the head. He fell down and lost consciousness.[12] [Footnotes
referring to the pertinent parts of the record supplied]
Significantly, Vicente admitted on cross-examination that he and Winnie were already drunk
even before they went to the restaurant where the stabbing took place. [13]
Eddie corroborated the testimony of Vicente on material points, particularly on the
state of their intoxication even before going to the scene of the stabbing. His testimony on what
transpired at the restaurant was summarized in the RTC decision[14] as follows:
Eddie Roque alleged that at around 5:40 oclock in the afternoon
of July 21, 1996, he, together with Winnie Alon, Vicente Alon and Wilfredo
Cabison, were [sic] inside the restaurant of Mrs. Heyres at Cuartero Public
Market to leave their tools of the chain saw [sic] and to eat and
drink.[15] Noel Guillermo, Arnel Socias, and Joemer Palma were ahead of
them to [sic] the restaurant and were drinking beer. They invited them and
they joined them.[16] Before each of them could fully consume a bottle
served upon each of them, Winnie Alon and Arnel Socias argued about the
cutting of wood by means of a chain saw [sic]. The argument was so heated
that each of the protagonists stood up and Arnel Socias took 2 bottles which
were thrown to Vicente Alon who was hit on the forehead.[17]
Noel Guillermo hugged or embraced Winnie Alon and stabbed
him three times (3) on [sic] the neck with a Batangueo knife. Arnel Socias
went around, then behind, and stabbed Winnie Alon once, on the left side
of his body, just below his left armpit, with a pointed object, but he could
not determine what weapon was used. Joemar Palma also helped in stabbing
Winnie Alon once, hitting him at the right side of his body. [18]
Winnie Alon resisted trying to struggle [sic], but could not move
because he was ganged up by the three.[19] [Footnotes referring to the
pertinent parts of the record supplied]
Dr. Betita, rural health physician of Cuartero, Capiz, declared on the witness stand
that he conducted on July 22, 1996 a postmortem examination on the body of Winnie[20] and
made the following findings:
POSTMORTEM EXAMINATION
The postmortem examination is done on the remains of Winnie
Alon, 31 years old, single, from Malagab-i, Cuartero, Capiz, was stab [sic]
to death at about 5:40 P.M. at Pob. Takas, Public Market, Cuartero, Capiz
sustaining the following injuries:
1. Stab wound 1.5 x 3 cm with 6-8 cm depth [L]eft anterior chest
at level of 5th rib mid clavicular area.
2. Stab wound 2 x 3 cm with 5 cm depth anterior neck just above
the sternum.
3. Stab wound 2 x 3 cm with 3-5 cm depth at epigastric area.
The most probable cause of death was massive [H]emorrhage
secondary to multiple stab wounds.[21]
According to Dr. Betita, the cause of death was massive hemorrhage due to multiple stab
wounds.[22] He added that the three (3) stab wounds were probably caused by a sharp-bladed
instrument like a knife.[23]
The petitioner gave a different version of the events, summarized in the RTC decision
as follows:
Noel Guillermo testified that at 5:30 in the afternoon of July 21,
1996, he was in Cuartero at the restaurant of Melecio Heyres, husband of
Gertrudes Heyres, together with Arnel Socias and Joemar Palma drinking
beer, consuming only about half a bottle, when Winnie Alon, Eddie Roque,
Vicente Alon, and Wilfredo Cabison arrived and ordered beer from Babylou
Felipe. Winnie Alon came to him and requested to join them in their table
11
 which he affirmatively answered. Winnie Alon then had an altercation with
Arnel Socias regarding labtik (string used in marking wood to be cut).[24]
Winnie Alon challenged Arnel Socias to a contest on clean or
straight cutting of wood. Arnel declined the challenge claiming that he is
only an assistant to his brother-in-law. Winnie Alon got angry and told him
that he has long been in [the] chain saw [sic] business but youre stupid
(gago ka!). Arnel responded: If the wood is crooked and you would deviate
from line, youre stupid.[25]
Winnie Alon suddenly stood up and said to Arnel: Dont ever call
me stupid, pointing his finger to Arnel. He told them to settle the matter
peacefully as they are friend [sic], but Winnie Alon was so furious and
grabbed Arnel Socias by the collar. Arnel tried to release the hold of Winnie
from his collar. While he was pacifying the two telling them to settle the
matter peacefully, Winnie Alon turned to him and said: you also, then struck
him with a beer bottle. He was hit at the right top of his head thrice. He
stood up and boxed Winnie who again picked up a bottle break [sic] it
against the wall, and struck him with the broken bottle. He stepped back,
pulled his knife, and stabbed him three (3) times but cannot remember what
part of his body was hit by his successive stabs.[26] x x x [Footnotes referring
to the pertinent parts of the record supplied]
Baby Lou, a waitress at the restaurant of Melecio Heyres, narrated that in the
afternoon of July 21, 1996, the petitioner, together with Arnaldo and Joemar, arrived at the
restaurant and ordered beer.[27] A few minutes later, Vicente, Eddie, Winnie, and Wilfredo
Cabison arrived and also ordered beer. She then saw the group of Winnie transfer to the table
occupied by the petitioner and his companions. Thereafter, the group had a heated argument
among themselves regarding labtik.[28] In the course of the exchange, she saw Winnie strike the
petitioner on the head with a bottle. Winnie and the petitioner then grappled with each other. At
that point, she hid behind the refrigerator and did not see what happened next. Afterwards, she
saw the bloodied body of Winnie lying outside the restaurant.[29] She likewise saw the petitioner
outside the restaurant; his shirt was splattered with blood.[30]
Dr. Betita, this time testifying as defense witness, stated, among others, that the contusion
hematoma suffered by the petitioner could have been caused by a hard object like a beer bottle,
while the linear abrasion could have been caused by a fingernail. [31]
Arnaldo Socias testified that on July 21 1996, he, together with the petitioner and Joemar, was
drinking beer at the restaurant of Melecio Heyres[32] when Winnie stood up and asked if they
(Winnies group) could join them at their table. Arnaldo and his companions agreed. Winnies
group then transferred to the table of Arnaldos group.[33]
The discussion took a bad turn when the matter of cutting by chainsaw was raised. Winnie
challenged Arnaldo to a contest to determine who could do the cleanest cut. He declined and
claimed he does not know how to operate a chainsaw. To this, Winnie retorted, You are already
old in that business, but your finished product is still crooked. You are all dumb. He countered,
If the wood itself is crooked, you cannot have a straight lumber. You are dumb if you insist you
can. At that point, Winnie stood up and grabbed him by the collar. The petitioner intervened and
told them to settle their differences peacefully. Winnie then grabbed a bottle and struck the
petitioner on the head three times.[34] Arnaldo added that he did not see who stabbed Winnie,
because while the petitioner and Winnie were grappling, he was busy fighting with Vicente. [35]
Joemar Palma testified that in the afternoon of July 21, 1996, the petitioner, Arnaldo, and he
were drinking beer at the restaurant of Mr. Heyres when four persons, who appeared to be drunk
(later identified as Vicente, Eddie, Winnie, and Wilfredo Cabison), entered the restaurant and
ordered beer.[36] After the latter group joined them at their table, Winnie and Arnaldo had a
heated discussion regarding expertise in operating a chainsaw. Winnie grabbed the shirt collar
of Arnaldo in the course of the heated exchange.[37] The petitioner advised them to calm down,
but Winnie struck him (petitioner) on the head with a beer bottle three times. Vicente also tried
to strike Arnaldo, but the latter managed to duck and so he (Joemar) took the hit
instead. Thereafter, he and Arnaldo engaged Vicente.[38]
The RTC, in its decision of January 8, 2000, convicted the petitioner of the crime of homicide,
but acquitted Arnaldo and Joemar. The dispositive
portion of the decision reads:
WHEREFORE, the evidence on record having established the
guilt of Noel Guillermo as principal in the crime of homicide for stabbing
three (3) times Winnie Alon which caused the latters death, attended by a
special or privileged mitigating circumstance of incomplete justification,
and without any aggravating or mitigating circumstances attendant, he is
imposed an indeterminate sentence of six (6) years of prision
correccional, as minimum, to ten (10) years of prision mayor, as maximum,
with the corresponding accessory penalties, and to pay death indemnity of
P50,000.00 to the heirs of Winnie Alon, in the service of his sentence he
shall be credited the period that he undergone [sic] preventive
imprisonment, conformably with Art. 29 of the Code.
Costs against the accused.
For insufficiency of evidence, the accused Arnaldo Socias and Joemar
Palma are acquitted of the crime charged. The bail bond for their provisional liberty
is CANCELLED AND DISCHARGED.
SO ORDERED.[39] [Emphasis in the original]
The petitioner appealed to the CA whose decision is now assailed in the present petition. The
petitioner essentially claims that the RTC and the CA erred in failing to recognize the existence
of all the elements of self-defense.
THE COURTS RULING
We resolve to deny the petition for lack of merit.
Plea of Self-Defense
12

We note at the outset that the petitioner does not deny that he killed Winnie. He
expressly made this admission in his testimony of July 15, 1999:
ATTY. VILLAREAL:
Q: And what did you do when he struck you with the bottle?
NOEL GUILLERMO:
A: I was able to move backward and I realized that I have a knife on [sic]
the back of my waist.
Q: And what did you do with your knife?
A: I then stabbed him.
Q: How many times?
A: About three times as far as I can remember.[40] [Emphasis supplied]
The petitioner justifies the stabbing as an act of self-defense.
As the lower courts did, we do not recognize that the petitioner fully acted in self-
defense.
As a rule, the prosecution bears the burden of establishing the guilt of the accused
beyond reasonable doubt. However, when the accused admits the killing and, by way of
justification, pleads self-defense, the burden of evidence shifts; he must then show by clear and
convincing evidence that he indeed acted in self-defense. For that purpose, he must rely on the
strength of his own evidence and not on the weakness of the prosecutions evidence. [41]
The elements that the accused must establish by clear and convincing evidence to
successfully plead self-defense are enumerated under Article 11(1) of the Revised Penal Code:
ART. 11. Justifying circumstances. The following do not incur
any criminal liability:
1. Anyone who acts in defense of his person or rights,
provided that the following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to
prevent or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself.
As a justifying circumstance, self-defense may be complete or incomplete. It is complete when
all the three essential requisites are present; it is incomplete when the mandatory element of
unlawful aggression by the victim is present, plus any one of the two essential requisites.[42]
In the present case, we find it beyond dispute that the victim Winnie started the fight that ended
in his death; he struck the petitioner on the head when the latter intervened to pacify the quarrel
between Winnie and Arnaldo. In short, the victim was the unlawful aggressor while the
petitioner was in the lawful act of pacifying the quarreling parties; thus, the latter has in his
favor the element of unlawful aggression by the victim.
We consider it also established that the petitioner did not provoke the fight that
ensued; he was a third party to the quarrel between the original protagonists Winnie and Arnaldo
and did not at all initiate any provocation to ignite the quarrel. Thus, the petitioner also has the
element of lack of sufficient provocation in his favor.
The third element the reasonableness of the means to repel the aggression is the critical element
that the lower courts found lacking in the petitioners case. Generally, reasonableness is a
function of the nature or severity of the attack or aggression confronting the accused, the means
employed to repel this attack, the surrounding circumstances of the attack such as its place and
occasion, the weapons used, and the physical condition of the parties which, when viewed as
material considerations, must show rational equivalence between the attack and the
defense.[43] In People v. Escarlos,[44] this Court held that the means employed by a person
invoking self-defense must be reasonably commensurate to the nature and the extent of the
attack sought to be averted. In Sienes v. People,[45] we considered the nature and number of
wounds inflicted on the victim as important indicia material to a plea for self-defense.
In the present case, the attack on the petitioner came as he intervened in a quarrel between the
victim and another party. As we concluded above, we deem it established that the victim was
the unlawful aggressor who attacked the petitioner. Physical evidence shows that indeed the
petitioner suffered the following injuries:
1. Contusion Hematoma 2 x 3 left parital area just above the left
ear.
2. Linear abrasion 3 4 cm left hand medial side.
3. Linear abrasion 2 3 cm left head ulnar side.[46]
The weapons that caused these injuries were a beer bottle and, quite possibly, fingernails as the
victim and the appellant grappled with each other.[47] In contrast, the victim suffered three stab
wounds: at the neck, at the abdomen and in the chest. The weapon used was a Batangas knife
that admittedly belonged to the petitioner. Thus, the physical evidence in the case stands.
The petitioner claims self-defense on the position that Winnie, after hitting him on the head
three times with an empty bottle, grabbed another bottle, broke it against the wall, and thrust it
towards him. It was at this point that the petitioner used his knife to inflict Winnies fatal wounds.
Clearly, the petitioner wants to impress upon us that his response to Winnies attack was
reasonable; he used a knife to repel an attacker armed with a broken beer bottle.
Several reasons militate against our acceptance of the petitioners version and interpretation of
events.
13

First, there is intrinsic disproportion between a Batangas knife and a broken beer
bottle. Although this disproportion is not conclusive and may yield a contrary conclusion
depending on the circumstances, we mention this disproportionality because we do not believe
that the circumstances of the case dictate a contrary conclusion.
Second, physical evidence shows that the petitioner suffered only one contusion hematoma at
the parietal area above the left ear. Unless the three (3) beer bottle blows that the petitioner
alleged all landed on the same site a situation that could have incapacitated the petitioner the
more plausible conclusion from the physical evidence is that the petitioner received only one
blow, not three as he claimed. Contrary to what the petitioner wishes to imply, he could not have
been a defender reeling from successive head blows inflicted by the victim.
Third, the victim, Vicente, and Eddie, were already drunk when they arrived at the restaurant
before the fatal fight. This state of intoxication, while not critically material to the stabbing that
transpired, is still material for purposes of defining its surrounding circumstances, particularly
the fact that a broken beer bottle might not have been a potent weapon in the hands of a drunk
wielder.
Fourth, and as the CA aptly observed as well, the knife wounds were all aimed at vital parts of
the body, thus pointing against a conclusion that the petitioner was simply warding off broken
beer bottle thrusts and used his knife as a means commensurate to the thrusts he avoided. To be
precise, the petitioner inflicted on the victim: one stab wound at the chest, 6-8 cms. deep, at
the 5th rib clavicular area, or in plainer terms, in the area of the victims heart; another was at
the neck, 5 cms. deep, just above the breastbone; and a last one was in the abdominal area,
3-5 cms. deep. The depth of these wounds shows the force exerted in the petitioners thrusts
while the locations are indicative that the thrusts were all meant to kill, not merely to disable the
victim and thereby avoid his drunken thrusts.
Fifth, in appreciating the facts, the RTC and the CA were one in the conclusion to disbelieve
the petitioners allegation of complete self-defense, as reflected in the CAs further cogent
observations that:
(b) If, indeed the deceased picked up another bottle of beer, hit the same
against the wall, resulting in the breakage of the bottle, and with it, hit the
Appellant anew, it behooved the Appellant to have rushed posthaste to the
police station and report the stabbing, with the request that a policeman be
dispatched to the locus criminis and confirm the presence of broken pieces
of beer bottle in the restaurant. The Appellant did not. He and his
companions, Arnaldo and Joemar, fled from the scene, via the back door,
and escaped on board a motorcycle.
(c) Neither Arnaldo, Joemar, or Babylou corroborated the claim of the
Appellant that, after the Appellant boxed Winnie, who lost his hold of the
bottle of beer, he picked up another bottle and struck the bottle of beer
against the wall and hit the Appellant with the bottle. The appellant relied
solely on is own testimony to buttress his defense.
(d) The Municipal Trial Court conducted a preliminary investigation of
the Criminal Complaint filed against the Appellant, Arnaldo, and
Joemar. However, the Appellant did not submit any Counter-
Affidavit claiming that he was impelled to stab Winnie three (3) successive
times on mortal parts of his body and killing [sic] him because Winnie
picked up a bottle, hit the same against a wall and hit the Appellant anew
with the broken bottle.[48] [Underscoring in the original]
We see no reason to disturb these findings as they are based on existing evidence, and the
conclusions drawn therefrom are patently reasonable. We have time and again held that the
findings of facts of the trial court, its assessment of the credibility of witnesses and the probative
weight of their testimonies, and the conclusions based on the these factual findings are to be
given the highest respect; the trial court enjoys the unique advantage of being able to observe,
at close range, the conduct and deportment of witnesses as they testify. These factual findings,
when adopted and confirmed by the CA, are final and conclusive and need not be reviewed on
the appeal to us. We are not a trier of facts; as a rule, we do not weigh anew the evidence already
passed on by the trial court and affirmed by the CA.[49] Only after a showing that the courts
below ignored, overlooked, misinterpreted, or misconstrued cogent facts and circumstances of
substance that would alter the outcome of the case, are we justified in undertaking a factual
review. No such exceptional grounds obtain in this case.
In sum, we rule that there was no rational equivalence between the means of the attack and the
means of defense sufficient to characterize the latter as reasonable.
The Proper Penalty
The imposable penalty for homicide under Article 249 of the Revised Penal Code is reclusion
temporal in its full range.[50] Article 69 of the Code however provides that:
ART. 69. Penalty to be imposed when the crime committed is not wholly
excusable. A penalty lower by one or two degrees than that prescribed by
law shall be imposed if the deed is not wholly excusable by reason of the
lack of some of the conditions required to justify the same or to exempt
from criminal liability in the several cases mentioned in Articles 11 and 12,
provided that the majority of such conditions be present. The courts shall
impose the penalty in the period which may be deemed proper, in view of
the number and nature of the conditions of exemption present or lacking.
Since the petitioners plea of self-defense lacks only the element of reasonable means, the
petitioner is, therefore, entitled to the privileged mitigating circumstance of incomplete self-
defense. Consequently, the penalty for homicide may be lowered by one or two degrees, at the
discretion of the court.
The penalty which the RTC imposed and which the CA affirmed lowered the penalty
of reclusion temporal by one degree, which yields the penalty of prision mayor. From this
penalty, the maximum of the indeterminate penalty is determined by taking into account the
attendant modifying circumstances, applying Article 64 of the Revised Penal Code.[51] Since no
aggravating nor mitigating circumstance intervened, the maximum of the indeterminate penalty
shall be prision mayor in its medium period whose range is from 8 years and 1 day to 10 years.
14
To determine the minimum of the indeterminate penalty, prision mayor has to be reduced by
one degree without taking into account the attendant modifying circumstances. The penalty
lower by one degree is prision correccional whose range is from 6 months and 1 day to 6 years.
The trial court is given the widest discretion to fix the minimum of the indeterminate penalty
provided that such penalty is within the range of prision correccional.

The CA affirmed the indeterminate penalty of six (6) years prision correccional, as minimum,
to ten (10) years of prision mayor, as maximum, as imposed by the RTC on petitioner. We
affirm this to be the legally correct and proper penalty to be imposed upon petitioner.

We also affirm the P50,000.00 death indemnity awarded to Winnies heirs, in accordance with
prevailing jurisprudence.[52]

We add that moral damages should be awarded as they are mandatory in murder and homicide
cases without need of allegation and proof other than the death of the victim. [53] The award
of P50,000.00 as moral damages is, therefore, in order.

WHEREFORE, in light of all the foregoing, we DENY the petition. The assailed decision and
resolution of the CA dated November 15, 2001 and April 5, 2002, respectively, in CA-G.R. CR
No. 24181 are AFFIRMED with the MODIFICATION that the petitioner is ordered to pay
the heirs of Winnie Alon the amount of P50,000.00 as moral damages. Costs against the
petitioner.

SO ORDERED.

G.R. No. L-30801 March 27, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DOMINGO URAL, accused-appellant.
Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Antonio A. Torres
and Solicitor Vicente P. Evangelista for plaintiff-appellee.
Vicente Cerilles and Emeliano Deleverio for accused-appellant.

AQUINO, J.:p
This is an appeal of defendant Domingo Ural from the decision of Judge Vicente G. Ericta of
the Court of First Instance of Zamboanga del Sur, convicting him of murder, sentencing him
to reclusion perpetua, and ordering him to indemnify the heirs of Felix Napola in the sum of
twelve thousand pesos and to pay the costs (Criminal Case No. 3280).

15
The judgment of conviction was based on the testimony of Brigido Alberto, a twenty-six year
old former detention prisoner in Buug, Zamboanga del Sur. He had been accused of murder
and then set at liberty on June 9, 1966 after posting bail. He went to Barrio Camongo,
Dumalinao where his father resided. On July 31, 1966, he intended to go to his residence at
Barrio Upper Lamari, Buug but night overtook him in the town. He decided to sleep in the
Buug municipal building where there would be more security.
Upon arrival in the municipal building at around eight o'clock, he witnessed an extraordinary
occurrence. He saw Policeman Ural (with whom he was already acquainted) inside the jail.
Ural was boxing the detention prisoner, Felix Napola. As a consequence of the fistic blows,
Napola collapsed on the floor. Ural, the tormentor, stepped on his prostrate body.
Ural went out of the cell. After a short interval, he returned with a bottle. He poured its
contents on Napola's recumbent body. Then, he ignited it with a match and left the cell.
Napola screamed in agony. He shouted for help. Nobody came to succor him.
Much perturbed by the barbarity which he had just seen, Alberto left the municipal building.
Before his departure, Ural cautioned him: "You better keep quiet of what I have done" (sic).
Alberto did not sleep anymore that night. From the municipal building, he went to the
crossing, where the cargo trucks passed. He hitchhiked in a truck hauling iron ore and went
home.
Doctor Luzonia R. Bakil, the municipal health officer, certified that the thirty-year old victim,
whom she treated twice, sustained second-degree burns on the arms, neck, left side of the face
and one-half of the body including the back (Exh. A). She testified that his dermis and
epidermis were burned. If the burns were not properly treated, death would unsue from
toxemia and tetanus infection. "Without any medical intervention", the burns would cause
death", she said. She explained that, because there was water in the burnt area, secondary
infection would set in, or there would be complications.
Napola died on August 25, 1966. The sanitary inspector issued a certificate of death indicating
"burn" as the cause of death (Exh. B).
The trial court fittingly deplored the half-hearted manner in which the prosecution
(represented by Fiscal Roque and the private prosecutor, Delfin Agbu) handled the case. It
bewailed the prosecution's failure to present as witnesses Juanito de la Serna and Ernesto
Ogoc, the detention prisoners who saw the burning of Napola. They had executed a joint
affidavit which was one of the bases of the information for murder. 1
It noted that Rufina Paler, the victim's widow, who was present in court, was a vital witness
who should have been presented as a witness to prove the victim's dying declaration or his
statements which were part of the res gestae.2
In this appeal appellant's three assignment of error may be condensed into the issue of
credibility or the sufficiency of the prosecution's evidence to prove his guilt beyond reasonable
doubt.
His story is that at around nine o'clock in the evening of July 31, 1966 he was in the municipal
jail on guard duty. He heard a scream for help from Napola. He entered the cell and found
Napola's shirt in flames. With the assistance of Ernesto Ogoc and Anecio Siton, Ural removed
Napola's shirt. Ural did not summon a doctor because, according to Napola, the burns were not
serious. Besides, he (Ural) was alone in the municipal building.
Felicisima Escareal, Ogoc's common-law wife, whom the trial court branded "as a complete
liar", testified that she heard Napola's scream for help. She saw that Napola's shirt was burning
but she did not know how it happened to be burned. She said that Ural and Siton removed the
shirt of Napola and put out the fire.
Teofilo Matugas, a policeman, declared that he was relieved as guard by Ural at eight-thirty in
the evening of July 31st. Matugas denied that Alberio was in the municipal building at eight
o'clock.
The trial court held that Ural's denials cannot prevail over the positive testimony of Alberio. It
observed that Ural's alleged act of removing Napola's burning shirt was at most an indication
that he was "belatedly alarmed by the consequence of his evil act" but would not mean that he
was not the incendiary.
Appellant Ural (he was thirty-four years old in March, 1969), in assailing the credibility of
Alberio, pointed out that he was not listed as a prosecution witness and that he was convicted
of murder.
Those circumstances would not preclude Alberio from being a credible witness. It should be
noted that the accused was a policeman. Ordinarily, a crime should be investigated by the
police. In this case, there was no police investigation. The crime was investigated by a special
counsel of the fiscal's office. That might explain why it was not immediately discovered that
Alberio was an eyewitness of the atrocity perpetrated by Ural.
The testimonies of Felicisima Escareal, Ogoc's common-law wife, and Policeman Matugas are
compatible with the prosecution's theory that Ural burned Napola's shirt. Ultimately, the
factual issue is: who should be given credence, Alberio or Ural? As already stated, the trial
court which had the advantage of seeing their demeanor and behavior on the witness stand,
chose to believe Alberio. This Court, after a searching scrutiny of the whole record, does not
find any justification for disbelieving Alberio.
This case is covered by article 4 of the Revised Penal code which provides that "criminal
liability shall be incurred by any person committing a felony (delito) although the wrongful act
done be different from that which he intended". The presumption is "that a person intends the
ordinary consequences of his voluntary act" (Sec. 5[c], Rule 131, Rules of Court).
The rationale of the rule in article 4 is found in the doctrine that "el que es causa de la causa es
causa del mal causado" (he who is the cause of the cause is the cause of the evil
caused)."Conforme a dicha doctrina no alteran la relacion de causalidad las condiciones
preexistentes (como las condiciones patologicasdel lesionado, la predisposicion del ofendido,
la constitucion fisica del herido, etc.); ni las condiciones sobrevenidas (como el tetanos, la
pulmonia, o la gangrena sobrevenidos a consequencia de la herida)" (1 Cuello Calon, Codigo
Penal, 12th Ed., 1968, p. 335-336).
The similar rule in American jurisprudence is that "if the act of the accused was the cause of
the cause of death, no more is required" (40 C.J.S. 854). So, where during a quarrel, the
accused struck the victim with a lighted lamp, which broke and fell to the floor, causing the oil
to ignite and set fire to the rug, and, in the course of the scuffle, which ensued on the floor, the
victim's clothes caught fire, resulting in burns from which he died, there was a sufficient
causal relation between the death and the acts of the accused to warrant a conviction of
homicide (Williams vs. U.S., 20 Fed. 2nd 269, 40 C.J.S. 854, note 90).
There is a rule that "an individual who unlawfully inflicts wounds upon another person, which
result in the death of the latter, is guilty of the crime of homicide, and the fact that the injured
person did not receive proper medical attendance does not affect the criminal responsibility"
(U.S. vs. Escalona, 12 Phil. 54). In the Escalona case, the victim was wounded on the wrist. It
would not have caused death had it been properly treated. The victim died sixty days after the
infliction of the wound. It was held that lack of medical care could not be attributed to the
wounded man. The person who inflicted the wound was responsible for the result thereof.
The crime committed by appellant Ural was murder by means of fire (incendio) (Par. 3, Art.
248, Revised Penal Code; People vs. Masin, 64 Phil. 757; U.S. vs. Burns, 41 Phil. 418, 432,
440).3
16
The trial court correctly held that the accused took advantage of his public position (Par. 1,
Art. 14, Revised Penal Code). He could not have maltreated Napola if he was not a policeman
on guard duty. Because of his position, he had access to the cell where Napola was confined.
The prisoner was under his custody. "The policeman, who taking advantage of his public
position maltreats a private citizen, merits no judicial leniency. The methods sanctioned by
medieval practice are surely not appropriate for an enlightened democratic civilization. While
the law protects the police officer in the proper discharge of his duties, it must at the same
time just as effectively protect the individual from the abuse of the police." U.S. vs. Pabalan,
37 Phil. 352).
But the trial court failed to appreciate the mitigating circumstance "that the offender had no
intention to commit so grave a wrong as that committed" (Par. 3, Art. 13, Revised Penal
Code). It is manifest from the proven facts that appellant Ural had no intent to kill Napola. His
design was only to maltreat him may be because in his drunken condition he was making a
nuisance of himself inside the detention cell. When Ural realized the fearful consequences of
his felonious act, he allowed Napola to secure medical treatment at the municipal dispensary.
Lack of intent to commit so grave a wrong offsets the generic aggravating, circumstance of
abuse of his official position. The trial court properly imposed the penalty of reclusion
perpetua which is the medium period of the penalty for murder (Arts. 64[4] and 248, Revised
Penal Code).
Finding no error in the trial court's judgment, the same is affirmed with costs against the
appellant.
So ordered.

[G.R. No. 139542. June 21, 2001]

17
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. INOCENCIO GONZALEZ,
JR., accused-appellant.
DECISION
GONZAGA-REYES, J.:
Many unfortunate tragedies would not have happened if the improvident use of a firearm
did not exacerbate a simple altercation over traffic. This is one of them.
On a day intended to pay homage to the dead, a pregnant woman was shot to death in the
course of her husbands altercation with the accused-appellant and his son along the Garden of
Remembrance within the Loyola Memorial Park in Marikina. The trial court found the accused
guilty of the complex crime of murder and two counts of frustrated murder and accordingly
sentenced him to death. This case is before us on automatic review.
The details of what actually transpired in the few seconds immediately preceding the
shooting are controverted by both parties but the events leading to this tragedy are not disputed.
In the afternoon of October 31, 1998 at about 2:30 p.m. both the families of the private
complainant Noel Andres and that of the accused-appellant Inocencio Gonzalez were on their
way to the exit of the Loyola Memorial Park. The appellant was driving a white Isuzu Esteem
with his grandson and three housemaids, while the private complainant was driving a maroon
Toyota FX with his pregnant wife Feliber Andres, his two year old son, Kenneth, his nephew
Kevin and his sister-in-law, Francar Valdez. At the intersection near the Garden of
Remembrance, while the accused-appellant Gonzalez was turning left towards the exit and the
complainant Noel Andres was headed straight along the road to the exit their two vehicles almost
collided. Noel Andres was able to timely step on the brakes. The appellant continued driving
along his way while Noel Andres drove behind the appellants vehicle for some time and cut him
off when he found the opportunity to do so.[1] Noel Andres then got out of his vehicle and
knocked on the appellants car window.[2] This is as far as their versions of the incident coincide.
The prosecutions version of the incident is that Noel Andres calmly told the appellant to
be careful with his driving and informed the latter that he, Andres, is with his family and to this
Gonzalez allegedly replied, Accidents are accidents, whats your problem. Andres stated that he
saw the appellant turning red in anger so he decided to go back to his vehicle when he was
blocked by the appellants son who said, Anong problema mo sa erpat ko. Andres testified that
he felt threatened and so he immediately boarded his vehicle, sat at the drivers seat, closed the
door, and partially opened the car window just wide enough to talk back to appellants son,
Dino. Suddenly, one of his passengers said Binaril kami. He turned to his wife Feliber Andres
and saw her bloodied and unconscious. He turned around and saw his son Kenneth and nephew
Kevin were also wounded. Andres admitted in court that he and Dino were shouting at each
other so that he did not hear the shot. Andres then got out of his vehicle to warn the appellant
not to flee. He then took the wounded members of his family to the exit where there was an
ambulance standing by. The three were then taken to the Sta. Monica Hospital and were later
transferred to the Quezon City Medical Center.
The defenses version of the incident is that Andres cut the appellants path by positioning
his FX obliquely along the appellants lane from the latters left side. Andres then got out of his
vehicle, stood beside the appellants car window, and repeatedly cursed the appellant, Putang ina
mo, ang tanda-tanda mo na hindi ka pa marunong magmaneho. Ang bobo-bobo mo.[3] The
appellant stayed inside his car and allegedly replied, Pasensiya ka na hindi kita nakita, nasilaw
ako. Aksidente lang. The appellant Gonzalez and another witness for the defense, Quidic,
testified that Noel Andres went back to his vehicle to move it in such a way that it is straight in
front of the appellants car. Andres allegedly got out of his vehicle again and continued shouting
and cursing at the appellant.[4] Dino, the appellants son, who rode in another vehicle decided to
go back when he did not see his fathers car behind him. When Dino arrived at the scene he
confronted Andres and the two had an altercation. Both Dino and the appellant stated that
Andres remained outside his vehicle during the altercation with Dino. When Andres suddenly
reached for something inside his vehicle, Dino froze on the spot where he stood. This prompted
the appellant to get his gun from the glove compartment and feeling that his son was threatened
he got out of his car ready to shoot. When he saw that Andres did not have a weapon he put
down his hand holding the gun. This is when the appellants daughter Trisha who was riding in
Dinos car arrived at the scene, walked past Dino and Andres, and pushed the appellant
away. She hugged her father and in the process held his hand holding the gun. The appellant
tried to free his hand and with Trishas substantial body weight pushing against him the appellant
lost his balance and the gun accidentally fired. The accused stated that he did not know he shot
somebody until the private complainants sister-in-law, Francar Valdez, got out of the vehicle
carrying a bloodied small boy. The defense claims that the appellant did not try to flee and even
told the complainants sister-in-law to take the wounded to the hospital.
On November 4, 1998 an Information for the complex crime of Murder, Double Frustrated
Murder and Attempted Murder was filed against herein accused-appellant:
That on or about the 31st day of October 1998, in the city of Marikina, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, did then and there
willfully, unlawfully and feloniously with intent to kill, attack, assault and employ personal
violence by means of treachery and abuse of superior strength upon the person of Noel Andres
y Tomas, by then and there shooting him with a Glock cal. 9mm pistol but instead hitting one
Feliber Andres y Ordoo, on the left back portion of her head, thereby inflicting upon her
serious and mortal wound which directly caused her death, as well as hitting John Kenneth
Andres y Ordoo and Kevin Valdez y Ordoo physical injuries which ordinarily would have
caused their death, thus performing all the acts of execution which would have produced the
crime of murder as a consequence, but nevertheless did not produce it by reason of some cause
or causes, independent of their will, that is, the timely and able medical assistance rendered to
John Kenneth Andres y Ordoo and Kevin Valdez y Ordoo to their damage and prejudice as
well as to the damage and prejudice of the heirs of Feliber Andres y Ordoo.
On arraignment the accused-appellant pleaded not guilty to the crimes charged.
The case records show that Feliber Andres, the wife of Noel Andres did not die
instantaneously. She lived to give birth to a baby girl[5] by caesarian section and died the
following morning on November 1, 1998. The Autopsy Report[6] states:
FINDINGS: Fairly nourished, fairly developed female cadaver, with post mortem
lividity. Conjunctivae are pale. Lips and nail beds are cyanotic. Surgical incisions were noted
at left tempero-parietal region. Surgical incisions is also noted at the abdominal region
secondary to a caesarian section.
HEAD: (1) gunshot wound, point of entry, left fronto-temporal region, measuring 1 by 0.9 cm,
9 cm from the anterior midline, with a uniform abraided collar measuring 0.2 cm., directed
posteriorwards, slightly downwards, and medialwards, fracturing the frontal, and left temporal
bones, lacerating the left cerebral hemisphere, with a deformed slug fragment embedded and
recovered at the posterior lobe of the left cerebral hemisphere. (2) hematoma, left orbital
region, measuring 4.5 by 2 cm, 4 cm from the anterior midline. There are subdural and
18
subarachnoidal hemorrages. Stomach contains 1 glassful of partially digested food particles
mostly rice and meaty material.
CONCLUSION: Cause of death is gunshot wound on the head.
Kenneth and Kevin were treated for extraction of metallic fragments on their faces. They
were discharged from the hospital six days later or on November 6, 1998.
On June 25, 1999 the trial court rendered judgement finding that the shooting was attended
by the qualifying circumstance of treachery and held the appellant guilty of the complex crime
of murder for the death of Feliber Andres and for two counts of frustrated murder for the injuries
sustained by Kenneth Andres and Kevin Valdez and sentenced the appellant to the maximum of
the imposable penalty which is death. The trial court held:
Beforehand, the Court takes note of the judicial admissions on the verbal declarations of the
accused that the court a quo has jurisdiction over the case; that he owns the black Gluck 9 mm.
automatic pistol; that the said gun will never fire even if he drops it; that only one bullet was
fired from his gun; and that the victim Feliber Andres is already dead. With this exegesis and
the declarations in open court of the eyewitness of both the prosecution and some of the
defense, there is no real dispute on the antecedent facts showing that the accused fired on Noel
Andres but instead hit and caused the fatal injuries to the victims John Kenneth Andres, Kevin
Valdez and Feliber Andres resulting to the ultimate death of the latter. The court takes further
judicial admissions of the accused made in their memorandum demonstrating the existence of
five (5) sequences of events leading to the death of Feliber Andres and the wounding of John
Kenneth Andres and Kevin Valdez which are as follows: First is when Noel Andres overtook
the car driven of the accused and cut cross his path; Second is when Noel Andres alighted
from his vehicle and confronted Inocencio; Third is when Noel had an argument with Dino
Gonzalez, the son of the accused; Forth is when, Inocencio seeing his son having
confrontation with Noel, got his gun to protect Dino; and Fifth is when Inocencio had a
struggle with his daughter. Trisha Gonzalez, who tried to reach for the gun and as a result of
which Inocencio lost his balance and as he was falling backward to his side, his right arm
holding the gun hit the rear window of the Tamaraw FX van and the gun accidentally went off
hitting the victim, who were all then inside the van.
The court likewise take judicial notice on the feature of the automatic pistol used in this case
which is capable of unquestionable demonstration or ought to be known to judges because of
their judicial functions. Practically, the stages before an automatic firearm would be capable of
firing are as follows: 1) the loading of a bullet into the chamber of the gun; 2) the cocking of
the hammer, if uncocked; 3) the releasing of the safety pin; 4) the pressing of the trigger to
unleash the hammer so that the firing pin will hit the cartridge to propel the bullet out to hit the
target. Realistically, it demonstrates that a gun will not fire even if the bullet is loaded in its
chamber if the hammer is uncocked; or even if cocked if the safety pin is engaged; or even if
the safety pin is disengaged if the trigger will not be pressed. However, even if the gun is fired
if it is not aimed and leveled to the target, the purpose of firing it shall not be
achieved. Contrarily, once a gun is drawn against a person, the means methods and forms
employed for its execution is already conceived. And once it is tended directly and specifically
to insure its execution, it consequently produces the conscious and deliberate intention. Finally
if all the acts of execution had been effectively done without risk on the part of the offender
arising from any defense coming from the offended party, treachery results. In brief, there is
treachery when the offender commits any crime against persons, employing means, methods
and forms in the execution thereof which tend directly and specially to insure its execution,
without risk to himself arising from any defense which the offended party might make (People
vs. Mesa 276 SCRA 407; People vs. Carlos Patrolla, Jr. G. R. No. 112445, March 7, 1996). To
appreciate treachery two (2) conditions must be present, to wit: 1) the employment of means
of execution that give the person attacked no opportunity to defend himself or retaliate; and 2)
the means of execution were deliberately or consciously adopted. (People vs. Azugue, 268
SCRA 711; People vs. Pea, G. R. No. 116022, July 1, 1998, p. 1)
In the case at bar and guided with the above-quoted doctrinal cases, logically, the accused is
positive of the crime charged against him. When he alighted with a drawn gun to protect his
son and released all the safety measures of his gun as he fired and missed at Noel who was
then unarmed, but instead hit Kevin Valdez, John Kenneth Andres and Feliber Andres which
resulted to the death of the latter, demonstrate that the accused has executed the two (2)
conditions to generate treachery enough to qualify the crime committed to murder.
XXXX XXXXX XXXX
WHEREFORE, foregoing premises considered, the accused Inocencio Gonzalez, Jr., y
Esquivel is hereby found guilty beyond reasonable doubt of the complex crime of Murder with
Double Frustrated Murder and Attempted Murder penalized under Art. 248, as amended by
Republic Act No. 7659 in relation to Article 48 of the Revised Penal Code and is sentenced to
suffer the maximum penalty of Death by lethal injection.
The accused is further ordered to pay the following civil liabilities:
1. To the private complainant Noel Andres:
a) the amount of P50,000.00 as indemnity for the death of Feliber Andres;
b) the amount of P3,363,663.60 as indemnity for the loss of earning capacity of the
deceased Feliber Andres;
c) the amount of P98,384.19 as funeral expenses;
d) the amount of P271,800.56 for the hospitalization expenses incurred for the
injuries sustained by the deceased Feliber Andres and the amount of P23,622.58
representing the expenses for the untimely delivery of the child Ma. Clarisse
Andres;
e) the amount of P51,566.00 representing the hospitalization expenses for the
injuries sustained by the victim John Kenneth Andres;
f) the amount of P150,000.00 as moral damages suffered for the untimely death of
his wife Feliber Andres and for the injuries caused to his son John Kenneth
Andres;
g) the amount of P50,000.00 as and by way of attorneys fees and a fee of P2,000.00
per appearance; and
h) the costs of the suit.
2. To the private complainant Nicasio Valdez:
a) the amount of P73,824.75 as actual damages for the injuries sustained by the
victim Kevin Valdez; and
b) the amount of P75,000.00 as and by way of moral damages.
19
SO ORDERED.
In his appeal, Gonzalez submits the following assignments of error:
1. The trial court committed reversible error when it found that treachery was present.
2. The trial court committed reversible error when it presumed that there was treachery by
taking judicial notice of the feature of the automatic pistol involved in this case.
3. The trial court committed reversible error when it violated the constitutional right of the
accused-appellant to due process when it took judicial notice of the feature of the automatic
pistol involved in this case without notice.
4. The trial court committed reversible error when it found Accused-Appellant guilty beyond
reasonable doubt of the complex crime of Murder with Double Frustrated Murder.
5. The trial court committed reversible error when it failed to appreciate the mitigating
circumstances of passion or obfuscation, lack of intention to commit so grave a wrong,
provocation or threat on the part of the offended party immediately preceded the act,
incomplete defense of relative, and voluntary surrender.
6. The trial court committed reversible error when it failed to find that the shooting incident
was accidental.
7. The trial court committed reversible error when it gave credence to the testimonies of
prosecution witnesses Elmer Ramos and Moises Castro.
8. The trial court committed reversible error when it disregarded the basic principle that the
accused is presumed innocent and his guilt must be proven beyond reasonable doubt.
9. The trial court committed reversible error when it ordered Accused-Appellant to pay for the
civil liabilities.
The appellant seeks a reversal and prays that judgment be rendered exempting him from
criminal and civil liabilities. Appellant declared that he had no intention to shoot Noel Andres
much less his wife nor the children. He lost his balance when his daughter Trisha approached
and pushed him backwards to stop him from joining Dino and Noel Andres but the appellant
tried to free his right hand holding the gun and it accidentally fired. The single bullet fired hit
the last window on the left side of the Tamaraw FX. The appellant claims that he did not see the
passengers inside the vehicle at the time of the shooting. This is corroborated by the testimony
of two witnesses for the prosecution who testified that the windows of Andres vehicle are
heavily tinted so that a person outside the vehicle would not be able to see if there are people
inside. It is also argued that had the appellant intended to shoot Noel Andres he could have
simply done so by shooting at him directly. The defense asserts that the evidence for the
prosecution failed to establish the attendance of treachery and without the attendance of the said
qualifying circumstance the crime committed is homicide, not murder.
The appellant also points out that the trial court made the factual finding that the shooting
happened in a matter of seconds and that it was preceded by a heated argument between the
parties. Such being the case, it is argued that the shooting could not have been attended by
treachery. There was no time for the appellant to consciously and deliberately employ the mode
of attack against Noel Andres, nor against any one of the actual victims, to insure its execution
and at the same time to eliminate any form of retaliation from the alleged intended victim. And
yet, the trial court, contrary to the evidence on record, held that the loading of the bullet into the
chamber of the gun, the cocking of the hammer, the release of the safety pin and the pulling of
the trigger by the appellant of his automatic pistol constitute conscious and deliberate effort to
employ the gun as a means of committing the crime and resultantly, qualified its commission
by treachery. Such a finding presupposes that the appellant loaded the gun to shoot Noel Andres
only that very moment when his son Dino and Noel Andres were arguing. This conclusion has
no basis on record. The appellant testified that his gun was loaded before he left the house and
two witnesses for prosecution stated in court that a few seconds after Noel Andres and Dino
started shouting at each other, the appellant got out of his car and shot at the last window on the
left side of the complainants vehicle. Further, the appellant assigns as error the procedure
adopted by the trial court in taking judicial notice that the gun used by the appellant is an
automatic pistol and as such, it will not fire unless aimed at the intended target. The procedure
taken by the trial court is contrary to Section 3, Rule 129 of the Rules of Court.[7] The trial court
should have given both parties the opportunity to present evidence, expert evidence, if
necessary, to inform the court on the subject matter. The appellant argues that the factual finding
borne by such erroneous procedure is equally erroneous. The gun used by the appellant is a
semi-automatic and not an automatic pistol which means that the pistol used has no external
safety pin to be released and that the hammer need not be cocked. The pulling of the trigger,
intentional or not, will fire the gun. The use of a semi-automatic pistol does not necessarily
imply treachery.
Appellant also argues that the testimonies of prosecution witnesses Castro and Ramos
were improperly given credence by the trial court. The appellant contends that a reading of their
testimonies would show that their narration of the incident is rather absurd and would show that
they did not witness the actual shooting. Defense witnesses, Gonzalez and his daughter, Trisha,
on the other hand, testified that Castro and Ramos arrived at the scene only after the shooting.
As regards the injuries sustained by Kevin and Kenneth, it is argued that considering that
there was no intent to kill and that they stayed in the hospital only for six days, the crime
committed is physical injuries. It is argued that the trial court erred in awarding damages. The
bunch of receipts allegedly representing the medical expenses incurred for the injuries sustained
by the victims was erroneously admitted in evidence, without first requiring the prosecution to
establish the authenticity of the receipts. The appellant also points out that the award for loss of
earning capacity has no basis as the deceased was unemployed at the time of the incident.
Finally, the appellant assigns as error the trial courts rejection of the mitigating
circumstances pleaded by the defense which allegedly attended the commission of the crime,
i.e., lack of intent to commit so grave a wrong, passion and obfuscation, incomplete defense of
a relative and voluntary surrender. The appellant asserts that these mitigating circumstances
were duly proven during the trial and are supported by the evidence on record. The private
complainant Noel Andres testified that he saw the appellant getting red in anger after they,
Andres and the appellant, had a heated argument immediately prior to the shooting. These
admitted circumstances show that the appellant was not in his proper state of mind at the time
of the shooting.First, he was angered by Andres abusive language and later he got out of his car
with a loaded gun to protect his son from a perceived danger. The appellant clams that his
willingness to help the injured and his voluntary surrender to the police should likewise be
considered as mitigating circumstances in the imposition of penalties.
The Solicitor-General agrees with the appellant that the crime was not attended by the
qualifying circumstance of treachery and hence the crime committed by the appellant for the
death of Feliber Andres is homicide, not murder. The appellee takes into consideration that the
shooting was preceded by a heated argument and that the supposed victim was placed on guard
that attack was imminent. It also appears that the shooting was done impulsively. There is no
evidence that the appellant deliberately employed the means of attack to insure execution of the
crime and at the same time eliminate the risk of retaliation from the private complainant. The
appellee also agrees with the appellant that the trial court erred in equating the use of an
automatic pistol with treachery. The trial court made the factual finding that the appellants
20
automatic pistol would not fire unless aimed and the trigger is deliberately pulled and hence
treachery attended the shooting. The appellee submits that if we follow the reasoning of the trial
court it would appear that the appellant intended to shoot at the complainants vehicle only as
the shot was fired at the last window on the left side of the FX away from where Andres was
allegedly seated. The fact that the gun was drawn and fired does not mean that the mode of
attack was consciously and deliberately employed.
However, with respect to the injuries sustained by Kevin and Kenneth, the appellee
disagrees with the contention that the appellant is liable only for slight physical injuries. The
injuries sustained by both children are head injuries and could have caused their death if not for
the immediate medical attention given them. The number of days spent in the hospital is not
determinative of the severity of the wounds. Their nature and location should instead be
considered. The appellant cannot escape liability for frustrated homicide for the injuries of the
two children on the ground that he fired a single shot at the vehicle of Noel Andres. He is liable
for all the consequences of his unlawful act even if the crime committed is different from that
intended.
As regards the pleaded mitigating circumstances, appellee asserts that none can be
considered in favor of the appellant. There is evidence on record that the appellant did not
voluntarily surrender to the police and it appears from the testimonies of witnesses that he
entertained the possibility of flight but his car was stuck in traffic along the exit of the memorial
park. His pretense of incomplete defense of a relative is belied by his own admission that when
he saw that Noel Andres did not have a gun he lowered his hand holding the gun. There was
allegedly no threat on the life of his son at the time of the shooting, no uncontrollable fear nor
irresistible force that would mitigate the commission of the offense.
The Solicitor-General also seeks to uphold the pecuniary awards granted by the trial
court. The appellee alleges that it is not denied by the appellant that Feliber Andres was a 38
year old registered nurse at the time of the shooting. Although she was then unemployed on
account of her pregnancy, she still had earning capacity and the trial court properly applied the
salary of a government nurse under the salary standardization scheme in the computation of
damages for the loss of earning capacity. The receipts presented in evidence by the prosecution
to establish hospitalization and other medical expenses incurred by the private complainants by
reason of the injuries suffered by the victims were duly authenticated by the prosecution
witnesses and there is no dispute that they are exact copies of the original receipts presented in
court. The objections raised by the appellant in this regard were duly met by the evidence
presented by the private complainants.
In sum, the appellee asserts that considering that the appellant fired a single shot and in
the process committed four offenses the appellant should be held liable for the complex crime
of homicide for the death of Feliber Andres, double frustrated homicide against Kevin and
Kenneth and attempted homicide against Noel Andres. Under the rules on complex crimes the
penalty for the gravest offense, i.e., reclusion temporal for homicide, should be imposed in its
maximum period.
The appeal has merit.
Treachery under par.16 of Article 14 of the Revised Penal Code is defined as the deliberate
employment of means, methods or forms in the execution of a crime against persons which tend
directly and specially to insure its execution, without risk to the offender arising from the
defense which the intended victim might raise. For treachery to be appreciated two elements
must concur: 1) the employment of means of execution that would insure the safety of the
accused from retaliatory acts of the intended victim and leaving the latter without an opportunity
to defend himself and 2) the means employed were deliberately or consciously adopted by the
offender.[8] The suddenness of the attack, the infliction of the wound from behind the victim,
the vulnerable position of the victim at the time the attack was made or the fact that the victim
was unarmed do not by themselves render the attack as treacherous. [9] This is of particular
significance in a case of an instantaneous attack made by the accused whereby he gained an
advantageous position over the victim when the latter accidentally fell and was rendered
defenseless.[10] The means employed for the commission of the crime or the mode of attack must
be shown to have been consciously or deliberately adopted by the accused to insure the
consummation of the crime and at the same time eliminate or reduce the risk of retaliation from
the intended victim.[11] Accordingly, it has been consistently held by this court that chance
encounters, impulse killing or crimes committed at the spur of the moment or that were preceded
by heated altercations are generally not attended by treachery for lack of opportunity of the
accused to deliberately employ a treacherous mode of attack.[12] Thus, the sudden attack made
by the accused due to his infuriation by reason of the victims provocation was held to be without
treachery. Sudden attacks made by the accused preceded by curses and insults by the victim or
acts taunting the accused to retaliate or the rebellious or aggressive behavior of the victim were
held to be without treachery as the victim was sufficiently forewarned of reprisal.[13] For the
rules on treachery to apply the sudden attack must have been preconceived by the accused,
unexpected by the victim and without provocation on the part of the latter.[14]
This Court has also had occasion to state that whether or not the attack succeeds against
its intended victim or injures another or whether the crime committed is graver than that
intended is immaterial, as long as it is shown that the attack is attended by treachery, the said
qualifying circumstance may still be considered by the court.[15] Thus, the determining factor on
whether or not the commission of a crime is attended by treachery is not the resulting crime
committed but the mode of attack employed in its execution.[16]
Treachery is never presumed. It is required that the manner of attack must be shown to
have been attended by treachery as conclusively as the crime itself. [17]
We affirm the recommendation of the Solicitor-General that the shooting was not attended
by treachery and accordingly the crime committed for the death of Feliber Andres is homicide
and not murder.
The encounter between Noel Andres and the appellant was a chance encounter. They were
total strangers before their vehicles almost collided at an intersection inside the memorial
park. Unfortunately, heated exchange of remarks that followed the near collision was fanned by
a short temper, which in the case of the appellant, was augmented by the improvident use of a
firearm.
From a reading of the transcript of the testimonies of the witnesses, it would appear that
Noel Andres, who had his pregnant wife and child with him, among others, on board the
Tamaraw FX provoked the altercation. After the near collision of his vehicle with that of the
appellant, he tailed behind the latters car towards the exit until he had the chance to cut him off
to scold him for his failure to observe traffic rules.[18] Andres stated in court that he calmly told
the appellant to be careful with his driving and denied that he was angry when he alighted from
his vehicle to confront the appellant.[19] His statement is belied by the witnesses, two prosecution
witnesses included, who uniformly testified that Andres quarreled with or shouted and cursed
at the appellant for the latters recklessness at the intersection.[20] The appellant narrated in court
that Andres repeatedly shouted at him, Putang ina mo, ang tanda-tanda mo na gago ka
pa.[21] Andres hostile behavior towards the appellant is evident from his statement in court that
he noticed the appellant turning red in anger.[22] It is highly improbable for Gonzalez to have
turned red in anger had Andres been polite, as he claims he was, in scolding Gonzalez. Andres
could have simply communicated to the appellant his disgust for the latters bad driving when he
overtook the appellants car near the scene of the shooting but instead he chose to block the
appellants path, insult and virtually provoke the appellant to retaliate.
21
 Andres stated in court that when he noticed Gonzalez infuriation he immediately walked
towards his vehicle, because according to him the altercation was over. On his way to his FX he
met another man, whom he later found out to be the appellants son, Dino. It appears that the
altercation was far from over because again Andres had a shouting match this time with
Dino.[23] In a matter of seconds, the appellant alighted from his car and fired a single shot at the
last window on the left side of Andres vehicle at an angle away from Noel Andres. The single
bullet fired hit Feliber Andres on the forehead near the temporal region above the left eye and
the two children with metallic fragments of the bullet on their faces, one at the cheek and the
other below his left eye.
The prosecution did not present evidence as to the exact seating arrangement of the
victims inside the vehicle; suffice it to say, that an examination of the pictures of the
vehicle[24] one of which shows a mass of blood stains on the left side (towards the drivers seat)
of the white seat cover below the head rest[25], would show that the deceased Feliber must have
been seated at the front passengers seat and the children at the middle row behind the drivers
seat.[26] Another picture shows a bullet hole on the last window on the left side of the
vehicle[27] and another shows that the front windshield appears undamaged.[28] A ballistics
expert appeared in court for the prosecution and testified that the bullet fired at the FX came
from the appellants gun, which fact was admitted by the defense. The prosecution did not inquire
from the ballistics expert regarding the trajectory of the bullet or the approximate distance of
the appellant from the FX when he fired his gun to establish whether or not the appellant aimed
for Noel or Feliber or simply fired indiscriminately at the latters vehicle.[29]
At first blush it would seem that the shooting of Feliber Andres was attended by treachery
as she was inside the FX witnessing her husbands altercation, first, with the appellant then with
the appellants son, totally defenseless from the shot that came suddenly from her left side. Public
outrage over the death of Feliber was heightened by the fact that she was then pregnant with her
second child and her death left a new born baby girl and a two year old boy motherless.
However, a meticulous review of the evidence prevents a conclusive finding of treachery
and any doubt must be resolved, like the fact of the commission of an offense, in favor of the
accused. The pictures indicate that Gonzalez fired at the FX at an angle away from Noel Andres
and that Gonzalez was not aiming at anybody in particular. It is not disputed that the appellants
car was directly behind the complainants FX and that Gonzalez who was then seated at the
drivers seat alighted from his car, took a few steps then fired at the left side of the FX. Whether
Noel Andres was seated at the drivers seat inside his vehicle when Gonzalez fired at the FX, as
the prosecution asserts, or was standing by the door of the drivers seat outside his vehicle, as
the defense submits, it is clear that the shot was fired away from Noel Andres. The bullet hit
Feliber near her temple above the left eye indicating that she was facing left towards her husband
when the shot was fired.[30] The direct hit on Felibers head shows that the angle of the shot was
indeed away from Noel Andres. Even the eyewitness for the prosecution testified that had the
appellant intended to kill Noel Andres he could have shot directly at him, considering that Noel
Andres was just a few steps away from him[31] and that Noel Andres was visible from the outside
because his window was partially open.[32] The pictures show that the bullet hole was on the
third window on the left side of the Tamaraw FX [33] belying any attempt to shoot Noel
Andres. Two prosecution witnesses Ramos and Castro unequivocally declared that nothing or
no one prevented Gonzalez from shooting directly at Noel Andres and that Gonzalez could have
simply done so if he wanted to. But after alighting from his car, Gonzalez took a few steps and
shot at the left side window of the FX.[34]
The fact that the appellant fired his gun from behind the victim does not by itself amount
to treachery. There is no evidence on record that the appellant deliberately positioned himself
behind the victim to gain advantage over him when he fired the shot. On the contrary, the
evidence before us reveals that the position of the appellants car was not of his own doing but it
became so when Noel Andres overtook his car and cut off his path.
We note further, that the appellant did not act belligerently towards Noel Andres even
after the latter cut off the appellants path. Andres stated in court that the appellant did not alight
from his car nor opened his window until he, Andres, tapped on it. [35] For his part Gonzalez
categorically stated in court that he did not point his gun nor threatened Andres during their
short spat.[36] Gonzalez, although he had his gun in his car, did not react to Andres cursing until
the latter was having an altercation with the appellants son, Dino. Gonzalez claimed that he
perceived that his son was in imminent danger.[37] Whether he overreacted or he shot at Andres
vehicle out of rage over Andres aggressive behavior, one thing appears clear to us, that the
shooting was not done in cold blood. It is undisputed that the windows of the FX are heavily or
darkly tinted so that a person outside would not see if anybody was inside.[38] The pictures of
the FX[39] on record confirm the testimonies of both prosecution and defense witnesses that the
other passengers of the FX were not visible from the outside. Gonzalez admitted in court that
Noel Andres mentioned that he has passengers with him while he was shouting and cursing at
Gonzalez but there is no indication that Gonzalez had any opportunity to see the passengers
when he fired the shot. The totality of the evidence on record fails to support a conclusion that
Gonzalez deliberately employed the mode of attack to gain undue advantage over the intended
nor the actual victim. Without any decisive evidence to the contrary, treachery cannot be
considered; thus the crime committed is homicide.[40]
The trial courts finding that the loading of the gun, the cocking of the hammer and finally
the pulling of the trigger constitute a deliberate effort on the part of appellant to use the gun as
a means of a treacherous attack is patently erroneous. A single and continuous attack cannot be
divided into stages to make it appear that treachery was involved. [41] The entire incident
happened in a matter of minutes, as testified to by witnesses, and as noted by the trial court.[42] It
was error to our mind for the trial court to divide the assault in stages to arrive at the conclusion
that the mode of attack was consciously employed by the appellant. Contrary to the finding of
the trial court that the appellant prepared the gun before getting out of his car, the appellant
testified that he loaded his gun before he left the house and that it was ready to fire when he
alighted his car. There was no time for him to reflect on the mode of attack since he just picked
up his gun and alighted from his car and shot at the FX a few seconds after Dino and Noel
Andres started shouting at each other.[43] We note further that the trial court pointed out that
from the fact that the appellant prepared his gun to shoot, this was an indication of the deliberate
employment of the gun as a means to kill; i.e. that the use of an automatic pistol shows that the
shooting was attended by treachery.
We do not agree that the weapon used, by itself, is determinative of treachery, unless it is
shown, and it is not herein shown, that the appellant deliberately used the gun to insure the
commission of the crime and to render the unarmed victim defenseless. As discussed above, the
encounter between the appellant and the Andresses was a chance encounter and the appellants
gun was in the glove compartment of his car even before he left his house. The shooting was
clearly a spur of the moment or impulsive decision made by the appellant preceded by a heated
altercation at the instance of the private complainant. Jurisprudence teaches us that under the
circumstances, treachery is not obtaining. In the case of People vs. Valles,[44] the accused, a
security guard, fired his Armalite and mortally wounded the victim when the latter approached
the accused four times insisting on entering the workplace wearing improper uniform, then
cursed and insulted and challenged the accused to a fight. We held that the shooting was not
attended by treachery as the shooting was preceded by a heated altercation at the instance of the
victim. It is to be noted that the kind of weapon used against an unarmed victim was not taken
into consideration in determining the attendance of treachery; it is the mode of attack employed
22
by the accused under the particular circumstances of a case that determines its attendance in the
commission of a crime. We find that the prosecution has not discharged its burden to show that
the shooting was attended by treachery and we are convinced that the crime committed for the
death of Feliber Andres is homicide.
As regards the injuries sustained by the two children we find that the crime committed are
two counts of slight physical injuries. The intent to kill determines whether the crime committed
is physical injuries or homicide and such intent is made manifest by the acts of the accused
which are undoubtedly intended to kill the victim.[45] In a case wherein the accused did not know
that a person was hiding behind a table who was hit by a stray bullet causing superficial injuries
requiring treatment for three days, the crime committed is slight physical injuries.[46] In case of
doubt as to the homicidal intent of the accused, he should be convicted of the lesser offense of
physical injuries.[47] We have earlier pointed out that the intent to kill is absent in this case. It
was also found that one small metallic fragment was extracted from Kenneth below his left eye
while another fragment was extracted from Kevin immediately below the level of his skin before
the cheek bone.[48] An examination of the testimonies of the attending physicians, showed that
the wounds sustained by the two children from the metallic fragments are not in themselves fatal
but may cause death if left untreated. One of the attending physician testified in court that the
fragments themselves will not cause complication, it is the entry of the fragment or the open
wound that is susceptible to infection.[49] Two small fragments were no longer extracted from
the face of Kevin Valdez, as the doctor deemed it to be without danger of complication. [50] We
note that the various sizes of the metallic fragments were not established, at least to give an
indication of the severity of the wounds sustained. Both children were discharged after six days
of treatment and there is no showing that they required subsequent treatment or that they were
immobilized for a greater number of days by reason of the injuries sustained. Considering the
nature and location of their injuries and the number of days required for their treatment, we find
that the crime committed for the injuries sustained by the children are two counts of slight
physical injuries under Art. 266 of the Revised Penal Code which imposes a penalty of arresto
menor or imprisonment for 1 to 30 days for injuries sustained that has incapacitated the victim
for one to nine days or required medical attendance for the same period. For evident lack of
criminal intent to kill the complainant, Noel Andres, as above stated, the information for
attempted homicide must fail.
The mitigating circumstances of voluntary surrender, passion and obfuscation, incomplete
defense of a relative and lack of intent to commit so grave a wrong, pleaded by the defense,
were not convincingly proved and none can be considered in the imposition of penalties. The
testimony of prosecution witness contradicts the appellants pretense of voluntary
surrender. Witness Ramos testified that the appellant drove away towards the gate of the
memorial park while he was questioning him after the shooting and had not Noel Andres and
onlookers blocked his path the appellant could have fled the scene of the crime. [51]
The mitigating circumstance of passion and obfuscation is also not obtaining. For this
mitigating circumstance to be considered, it must be shown that (1) an unlawful act sufficient
to produce passion and obfuscation was committed by the intended victim; (2) that the crime
was committed within a reasonable length of time from the commission of the unlawful act that
produced the obfuscation in the accuseds mind; and that (3) the passion and obfuscation arose
from lawful sentiments and not from a spirit of lawlessness or revenge. [52] Noel Andres act of
shouting at the appellants son, who was then a nurse and of legal age, is not sufficient to produce
passion and obfuscation as it is claimed by the accused. Besides, the appellants son, Dino was
shouting back at Noel Andres. It was not a case wherein the appellants son appeared helpless
and oppressed that the appellant lost his reason and shot at the FX of Noel Andres. The same
holds true for the appellants claim of provocation on the part of Noel Andres. Provocation must
be sufficient to excite a person to commit the wrong committed and that the provocation must
be commensurate to the crime committed. The sufficiency of provocation varies according to
the circumstances of the case.[53] The aggressive behavior of Noel Andres towards the appellant
and his son may be demeaning or humiliating but it is not sufficient provocation to shoot at the
complainants vehicle.
The plea for the appreciation of the mitigating circumstance of incomplete defense of a
relative is also unmeritorious since the act of Andres in cursing and shouting at the appellant
and his son do not amount to an unlawful aggression against them, Dino Gonzalez. Finally, the
plea for the appreciation of the mitigating circumstance of lack of intent to commit so grave a
wrong is likewise devoid of merit. This mitigating circumstance is obtaining when there is a
notable disparity between the means employed by the accused to commit a wrong and the
resulting crime committed. The intention of the accused at the time of the commission of the
crime is manifested from the weapon used, the mode of attack employed and the injury sustained
by the victim.[54] The appellants use of a gun, although not deliberately sought nor employed in
the shooting, should have reasonably placed the appellant on guard of the possible consequences
of his act. The use of a gun is sufficient to produce the resulting crimes committed.
For the death of Feliber Andres, and in the absence of any mitigating circumstance, the
appellant is hereby sentenced to an indeterminate sentence of 8 years and 1 day of prision mayor,
in its medium period, as minimum to 14 years 8 months and 1 day of reclusion temporal in its
medium period, as maximum. For each count of the slight physical injuries committed against
Kenneth Andres and Kevin Valdez, the appellant is hereby sentenced to 20 days of arresto menor
in its medium period.
The rules on the imposition of penalties for complex crimes under Art. 48 of the Revised
Penal Code are not applicable in this case. Art. 48 applies if a single act constitutes two or more
grave and less grave felonies or when an offense is a necessary means of committing another;
in such a case, the penalty for the most serious offense shall be imposed in its maximum
period. Art. 9 of the Revised Penal Code in relation to Art. 25 defines grave felonies as those to
which the law attaches the capital punishment or afflictive penalties from reclusion perpetua to
prision mayor; less grave felonies are those to which the law attaches a penalty which in its
maximum period falls under correctional penalties; and light felonies are those punishable by
arresto menor or fine not exceeding two hundred pesos. Considering that the offenses committed
by the act of the appellant of firing a single shot are one count of homicide, a grave felony, and
two counts of slight physical injuries, a light felony, the rules on the imposition of penalties for
complex crimes, which requires two or more grave and/or less grave felonies, will not apply.
The pecuniary award granted by the trial court for actual damages was duly established
by the testimonies of the prosecution witnesses as supported by the original receipts for
hospitalization and other medical expenses presented in evidence by the prosecution. The award
for loss of earning capacity is likewise sustained for the reason that while Feliber Andres was
pregnant and was unemployed at the time of death, it is not disputed that she was a registered
nurse and had earning capacity.Noel Andres also testified that he and his wife had plans to go
back to Saudi Arabia to work after Feliber had given birth to their second baby. While there is
no evidence as to Felibers actual income at the time of her death, in view of her temporary
separation from work because of her pregnancy, we do not consider it reversible error for the
trial court to peg her earning capacity to that of the salary of a government nurse under the salary
standardization law, as a fair estimate or reasonable assessment of her earning capacity at the
time of her death. It would be grossly inequitous to deny her spouse and her minor children
damages for the support that they would have received, considering clear evidence on record
that she did have earning capacity at the time of her death.
23
 The awards for moral damages for the death of Feliber Andres and for the injuries currency, to the damage and prejudice of the said Gau Guan in the said
sustained by the two children, which under the circumstances are reasonable, are likewise sum of Pl,281.00; that on the occasion of the said robbery and for the
sustained. purpose of enabling them to take, steal and carry away the said amount of
WHEREFORE, the decision of the trial court is hereby MODIFIED. The appellant is P1,281.00, the herein accused, in pursuance of their conspiracy, did then
hereby found guilty of homicide for the death of Feliber Andres and is sentenced to an and there wilfully, unlawfully and feloniously, with intent to kill and
indeterminate sentence of 8 years and 1 day of prision mayor in its medium period, as minimum, taking advantage of their superior strength, treacherously attack, assault
to 14 years 8 months and 1 day of reclusion temporal in its medium period, as maximum. For and use personal violence upon the said Gau Guan, by then and there
each count of the slight physical injuries committed against Kenneth Andres and Kevin Valdez, stabbing him with an icepick and clubbing him with an iron pipe on
the appellant is hereby sentenced to 20 days of arresto menor. different parts of his body, thereby inflicting upon him mortal wounds
The pecuniary awards granted by the trial court are hereby sustained. which were the direct and immediate cause of his death thereafter.
Contrary to law, and with the generic aggravating circumstances of (1)
SO ORDERED. nightime purposely sought to better accomplish their criminal design; (2)
evident premeditation; (3) in disregard of the respect due the offended
party; and (4) with abuse of confidence, the accused being then employees
of the offended party. 1
When the case was called for affaigmnent, counsel de oficio for the accused infomred said
court of their intention to enter a plea of guilty provided that they be allowed afterwards to
prove the mitigating circumstances of sufficient provocation or threat on the part of the
offended party immediately preceding the act, and that of having acted upon an impulse so
powerful as to produce passion and obfuscation. 2 Therafter, the trial judge propounded to
them the questions and the accused gave the answers quoted hereunder: +.wph!1
Court:
Your lawyer here has manifested your desire to enter a
plea of guilty to the offense charged, robbery with
homicide. Do you know that by agreeing to that
manifestation of your lawyer, you will be admitting
the commission of the crime charged?
Accused:
We agree, your honor, to what our lawyer said, but we
would like to explain something.
Court:
G.R. No. L-32040 October 25, 1977 Your lawyer here has stated that you will still prove
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, mitigating circumstances. Is that what you like to
vs. explain?
PEDRO PAGAL y MARCELINO and JOSE TORCELINO y TORAZO, defendants- Accused:
appellants. Yes, your honor.
Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and Court:
Solicitor Leonardo L. Cruz for appellee. If that is the case, I will give you a chance.
Ciriaco Lopez, Jr. for appellants. Accused:
Yes, your honor.
CONCEPCION, JR. J.:t.hqw Court:
In Criminal Case No. CCC-VI-5 (70) of the Circuit Criminal Court of Manila, the accused, Do you know that by agreeing to that manifestation,
Pedro Pagal y Marcelino and Jose Torcelino y Torazo were charged with the crime of robbery you will be admitting the commission of the crime
with homicide, committed as follows: +.wph!1 charged, robbery wit,. homicide?
That on or about December 26, 1969, in the City of Manila, Philippines, Accused:
the said accused, conspiring and confederating together and mutually Yes, your honor.
helping each other, did then and there wilfully, unlawfully and Court:
feloniously, with intent to gain, and by means of violence, take away from And for which this court might sentence you to death
the person of one Gau Guan, cash amounting Pl,281.00. Philippine or life imprisonment?

24
 Accused:
Yes, your honor.
Court:
And notwithstanding what is explained to you, you
still insist in your desire to enter a plea of guilty to the
offense charged?
Accused:
Yes, your honor.
Court:
Q Notwithstanding again the warning of the court that
the maximum penalty impossable is death?
A Yes, your honor.
Court:
Arraign the accused.
(At this stage, both accused were arraigned and both pleaded guilty to the
offense charged). 3
Thereafter, the accused presented evidence to prove the mitigating circumstances of sufficient
provocation on the part of the victim immediately preceding the act and acting upon an
impulse so powerful as to produce passion and obfuscation. After the accused had rested their
case, the prosecution presented the statements 4 of the accused, and other pertinent documents
regarding the investigation of the case. 5
After the trial, the court a quo rendered its decision, the dispositive portion of which reads as
follows: +.wph!1
WHEREFORE, both accused are hereby found guilty beyond reasaonable
doubt as principals of the crime of robbery with homicide and there being
proven the aggravating circumstances of nighttime, evident premeditation
and disregard of respect due the offended party offset only by the
mitigating circumstance of their plea of guilty, sentences each one of them
to DEATH, jointly and severally indemnify the heirs of the deceased Gau
Guan; P15,000.00 for moral damages; P15,000.00 for exemplary damages,
all amounts to bear interest until they shall have been fully paid; the sum
of P1,281.00 represnting the amount taken from the victim; and to pay
proportionately the costs. 6
The case is now before this Court for mandatory review on account of the death penalty
imposed upon the accused.
The appellant Pedro Pagal contends that the trial court erred in convicting him of the crime of
robbery with homicide instead of declaring him liable only for his individual acts, claiming
that the record is bereft of any proof or evidence that he and his co-appellant Jose Torcelino
conspired to commit the crime of robbery with homicide.
The appellant's position is not well-taken. His denial of conspiracy with his co-appellant Jose
Torcelino cannot be given credence in view of the clear and convincing confession of his guilt
in his statement 7 signed by him before the police investigators several hours after the
commission of the crime. Besides, when he pleaded guilty to the charge, he is deemed to have
admitted all the material facts alleged in the information. 8 By his plea, the appellant admitted
not only the commission of the crime but also the circumstances surrounding its commission,
including the allegations of conspiracy. A plea of guilty when formally entered on
arraignment, is sufficient to sustain a conviction even for a capital offense without the
introduction of further evidence, 9 the requisite proofs having been supplied by the accused
himself. 10 We find, therefore, that the trial court did not commit any error in convicting the
appellant Pedro pagal of the crime of robbery with homicide.
The appellants further assail the trial court in not appreciating in their favor the mitigating
circumstances of sufficient provocation, and passion or obfuscation.
Again, the appeflants'contention is devoid of merit. Firstly, since the alleged provocation
which caused the obfuscation of the appellants arose from the same incident, that is, the
alleged maltreatment and/or ill-treatment of the appellants by the deceased, these two
mitigating circumstances cannot be considered as two distinct and separate circumstances but
should be treated as one. 11 Secondly, the circumstance of passion and obfuscation cannot be
mitigating in a crime which as in the case at bar is planned and calmly meditated before
its execution. Thus, in People vs. Daos, 12 a case of robbery with homicide, this Court rejected
the claim of the appellants therein that passion and obfuscation should have been estimated in
their favor, because the death of the victim therein took place on the occasion of a robbery,
which, before its execut,.on, had been planned and calmly meditated by the appellants.
Thirdly, the maltreatment that appellants claim the victim to have committed against them
occurred much earlier than the date of the commission of the crime. Provocation in order to be
a mitigating circumstance must be sufficient and immediately proceeding the act. We hold that
the trial court did not commit any error in not appreciating the said mitigating circumstances
in favor of the appellants.
Finally, the appellants claim that the trial court erred in considering the aggravating
circumstances of nighttime, evident premeditation, and disregard of the respect due the
offended party on account of his rank and age.
Although the trial court correctly considered the aggravating circumstance of nocturnity
because the same was purposely and deliberately sought by the a,)pellants to facilitate the
commission of the crime, nevertheless, We disagree with its conclusion that evident
premeditation and disregard of the respect due the offended party were present in the
commission of the crime.
Evident premeditation is inherent in the crime of robbery. 13 However, in the crime of robbery
with homicide, if there is evident premeditation to kill besides stealing, it is considered as an
aggravating circumstance. 14 In other words, evident premeditation will only be aggravating in
a complex crime of robbery with homicide if it is proved that the plan is not only to rob, but
also to kill. 15 In the case at bar, a perusal of the written statements 16 of the appellants before
the police investigators show that their original plan was only to rob, and that, they killed the
deceased only when the latter refused to open the "kaha de yero", and fought with them. The
trial court, therefore, erred in taking into consideration the aggravating circumstance of
evident premeditation.
The aggravating circumstance that the crime was committed with insult or in disregard of the
respect due the offended party on account of his rank, age or sex may be taken into account
only in crimes against persons or honor, when in the commission of the crime there is some
insult or disrespect shown to rank, age, or sex. 17 lt is not proper to consider this aggravating
circumstance in crimes against property. 18 Robbery with homicide is primarily a crime against
property and not against persons. Homicide is a mere incident of the robbery, the latter being
the main purpose and object of the criminal. 19 The trial court erred in taking into account this
aggravating circumstance.
It results that in the commission of the crime, there is only generic aggravating circumstance,
i.e., nighttime or nocturnity.
Robbery with homicide is punished by reclusion perpetua to death. 20 Since the aggravating
circumstance of nighttime is offset by the mitigating circumstance of plea of guilty, the lesser
penalty, which is reclusion perpetua, should be imposed upon the appellants. 21
25
ACCORDINGLY, the judgment of the trial court is modified and the appellnts Pedro Pagal y Jr. on December 12, 1969. The killing was qualified by treachery and aggravated by
Marcelino and Jose Torcefino y Torazo are hereby sentenced to suffer each the penalty premeditation and disregard of rank. It was mitigated by plea of guilty.
of reclusion perpetua. In all other respects, the judgment of the trial court is affirmed. With After a mandatory review of the death sentence, this Court in its decision of February 13, 1975
costs against the appellants. affirmed the judgment of conviction. It appreciated in Benito's favor the mitigating
SO ORDERED. circumstance of voluntary surrender. The penalty was reduced to reclusion perpetua . (People
vs. Benito, 62 SCRA 351).
Benito filed a motion for reconsideration. He contends that he is entitled to the mitigating
circumstance of immediate vindication of a grave offense and that the aggravating
circumstances of disregard of rank should not be appreciated against him.
Benito, 26, a native of Naga City, in his sworn statement, which was taken, about five hours
after the shooting, by Corporal E. Cortez and Patrolmen J. de la Cruz, Jr., and
H. Roxas of the Manila Police , recounted the background and circumstances of the tragic
incident in this manner (Exh. A):
... you know, I was a former Civil Service Commission employee at P.
Paredes, Sampaloc, Manila, and I was Clerk 2 in the Administrative
Division and I started working in the Civil Service since November 1965
were suspended in my job because they suspected me of "DISHONESTY"
and suspended for 60 days and returned to work in January 1966 but they
again raised me "MALVERSARTION OF PUBLIC FUNDS,
QUALIFIED THEFT, ESTAFA and FALSIFICATION OF PUBLIC
DOCUMENT and UNITED STATES I'm also a Civil Service of the
Administrative Case of "DISHONESTY" and I was dismissed by the
Commissioner Subido on February 16, 1966.
And since then I have lost my job but all the time they came to me that I
told you was just fabricated the evidences and the work that I had shot
earlier by PETER MONCAYO JR. Y RAMOS and now pending City
Fiscal of Manila with Asst. Fiscal Magat and that's the "dismissal order"
of Commissioner Subido I appealed to the Civil Service Board of Appeals.
Since they were imprisoned for my work because of "fabricated" charges I
suffered from my life and I was ashamed of my friends. I was assigned to
the collecting department and the Civil Service employees were angry
with me because I was tight on them.
It was around 7 pm on Dec. 11, 1969, I went to the Civil Service on the
street Paredes and saw Mr. MONCAYO, Jr. and I talked to her and asked
her that you have been in my case for a long time and have not been able
to help her and her answer is "YOU SHOULD HAVE BEEN THERE
ARE YOU AND YOU HAVE TO HELP HERE" and leave ko.
At around 11:00 am we met Pete Moncayo Jr. within the compound of the
Civil Service and in front of many people he said that "HAPPY
GR No. L-32042 December 17, 1976 BETWEEN HERE HERE" so what I did was go away.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, At around 5:25 pm, this day, December 12, 1969, I saw Father Moncayo
vs. Jr. who cared about his car on the street P. Paredes opposite the Civil
ALBERTO BENITO y RESTUBOG accused-appellant. Service, I followed him and his car at the corner of P. Paredes and
RESOLUTION Lepanto, Sampaloc, Manila, shot me eight times and struck him and
knocked him in his car seat.
AQUINO, J .: Then I called the MPD Headquarters telephone to surrender and you came
Alberto Benito was sentenced to death by the Circuit Criminal Court of Manila after he with your partners.
pleaded guilty to the charge of murder for a shot with a .22 caliber revolver Pedro Moncayo, Benito surrendered to the police the revolver (Exh. C) used in the shooting with the eight
empty shells of the bullets which he had fired at Moncayo.

26
The Police report contains the following background and description of the killing (Exh. B):
According to the suspect, he was a former employee of the Civil Service
Commission at its main office located at P. Paredes, Sampaloc. Mla., And
was assigned as Clerk 2 in the Administrative Division from Nov. 1963
continuously up to Nov. 1965 when he was suspended for
"DISHONESTY".
After two months, he was reinstated but was criminally charged for
QUALIFIED THEFT, MALVERSATION OF PUBLIC FUNDS,
ESTAFA and FALSIFICATION OF PUBLIC DOCUMENTS and
administratively charged for "DISHONESTY" culminating in his
dismissal from the Civil Service on February 1966.
The aforecited criminal charges against the suspect were allegedly
investigated by Asst. Fiscal MAGAT. Records from the CRID, MPD,
reveals that on Dec. 6, 1966, Hon. Judge ROAN of the City Court of
Mla. issued a Warrant No. E-316758 for the arrest of the suspect for the
crime of ESTAFA.
On May 24, 1969, Hon. Judge JUAN O. REYES of the CFI of Mla. issued
an order no. OA-87409 for the arrest of the suspect for the crime of
MALVERSATION OF PUBLIC FUNDS. According to the suspect, the
aforecited criminal and administrative charges filed him were allegedly
instigated and contrived by the victim and since the time of his dismissal,
he was allegedly jobless.
On Dec. 11, 1969, the suspect went to the Civil Service at P. Paredes
st. and asked the victim to help him in his cases but the former allegedly
uttered to the suspect "IF YOU ARE LOOKING FOR THEM AND YOU
MAY EAT TO USE".
The suspect left and returned the following morning at 11:00 am of
Dec. 12, 1969, and when they met again, the victim allegedly remarked in
the presence of many people, "NAGIISTAMBAY ALWAYS HERE". The
suspect who was humiliated and incensed, left.
At about 5:25 pm of that same day, Dec. 12, 1969, the suspect who was
armed with an unlicensed Cal. 22 black revolver (w / SN - P-5317,
Trademarked "SENTINEL", SQUIRES BINGHAM MFG. CO. INC.
MLA. PI) loaded with nine (9) live Cal. 22 bullets in its cylinder, waited
for the victim outside the Civil Service compound at P. Paredes
st. Sampaloc, Mla.
The victim showed up and drove his green Chevrolet 2 door car (w / Plate
No.
L-10578 Mla. 69) along P. Paredes st. The suspect with evident
premeditation, surreptitiously followed the victim and when the latter's car
was at a full stop at the corner of Lepanto and P. Paredes sts. due to heavy
traffic of motor vehicles, the suspect without any warning or provocation,
suddenly and treacherously shot the victim eight (8) times on the head and
different parts of the body at near range which consequently caused the
latter's death on the spot inside his car.
The suspect then fled while the victim was conveyed on board a red
private car (w / Plate No. L-55117) by his co-employees (composed of
VICTOR VILLAR, ELEUTERIO MENDOZA & FORTUNATO JOSE
Jr.) to the FEU Hospital. Unfortunately, the victim was pronounced DOA
by Dr. P. PAHUTAN, SOD, at 5:40 pm of Dec. 12, 1969.
The thirty-six year old victim, a certified public accountant, was the Assistant Chief of the
Personnel Transactions Division and Acting Chief, Administrative Division of the Civil
Service Commission (Exh E to E-2). The accused was a clerk in the cash section,
Administrative Division of the Commission, receiving P1,884 per annum (Exh. D). He started
working in the Commission on November 7, 1963.
On October 21, 1965 Moncayo, as an administrative officer, reported to the Commissioner of
Civil Service that Benito admitted having malversed an amount between P4,000 and P5,000
from his sales of examination fee stamps. Moncayo's report reads as follows (Exh. F):
MEMORANDUM for
The Commissioner
Through Proper Channels
This refers to the case of Mr. ALBERTO R. BENITO, Clerk II in the
Administrative Division of this Commission, who, as had previously been
reported, malversed public funds in the amount of approximately
P5,000.00 out of his collections from the sale of examination fee stamps.
I wish to state that this matter came to my attention on the evening of
March 1, 1965 when Mr. Teodoro Abarquez, Acting Cashier I, reported to
me that fifty (50) money orders at P2.00 each with a total vlaue of P100.00
were missing from a bundle of money orders received from the Provincial
Treasurer of Cotabato, which were kept by him in one of the cabinets
inside the Cashier's Cashier 'room.
At the same time he also informed me that he suspected that Mr. Benito
stole the missing money orders. His suspicion arose from the fact that he
found several money orders marked "Cotabato" as their place of issue
among the cash receipts turned over to him by Mr. Benito that afternoon
as his collection from the sale of examination fee stamps. Mr. Abarquez
showed to me the said money orders issued in Cotabato which were turned
over to him by Mr. Benito and after checking their serial numbers with the
records of list of remittances on file, we were able to establish definitely
the fact that the said money orders were those missing.
It may be stated that at that time, Mr. Benito was assigned to work in the
Cash Section and one of his duties was to sell examination fee stamps to
applicants for examinations. It was then the practice of the cashier to issue
to Mr. Benito in the morning examination fee stamps to be sold during the
day and in the afternoon he turned over to the Cashier the proceeds from
the sale of stamps including the unsold stamps issued to him. After
considering the work performed by Mr. Benito, it became evident that he
succeeded in malversing the amount of P100.00 by substituting equivalent
amount of money orders in the place of the cash extracted by him from his
daily collections from the sale of examination fee stamps when he clears
his accountability with the Cashier.
The following day, I confronted Mr. Benito in the presence of
Mr. Abarquez and ask him whether he had something to do with the loss
of the fifty (50) money orders at P2.00 each. At first he denied, but when I
asked him where he obtained the money orders issued in Cotabato which
were included in his collections the day preceding, he admitted having
stolen the missing money orders.
27
 Having confessed his guiltk, I then asked Mr. Benito when he started
committing the said irregularity and how much in all did he actually
malversed out of his daily collections from the time that he started the
anomaly. He stated in the presence of Mr. Abarquez that he started in
January, 1965 and that although he did not know exactly the total amount
malversed by him, he believed the amount to be between P4,000 to
P5,000.00. He also confessed that he used the money orders remitted by
the Provincial Treasurer of Negros Occidental in the amount of P3,436.00
in substituting various amounts extracted by him from his daily cash
collections and used by him for personal purposes.
It appears from the records that the List of Remittances covering the
money orders received from the Provincial Treasurer of Negros
Occidental was duly receipted by Mr. Benito. He was supposed to issue an
Official Receipt therefor in favor of the said Provincial Treasurer and then
turn over to the Cashier the amount involved for deposit to the National
Treasurer. The said List of Remittances, duly signed by Mr. Benito, is
enclosed for use as evidence in this case.
I told Mr. Benito that I can not do anything but report the matter to the
Commissioner. However, he pleaded that he be given first an opportunity
to restore the amount before I make my report in order that the penalty that
may be imposed upon him may be lessened to a certain degree. As I
thought it wise in the interest of the service to recover the amount
involved, I allowed him to go and see his parents in Naga City to raise the
amount in question.
After two weeks, Mr. Benito informed me that his parents filed an
application for a loan with the Government Service Insurance System and
that the proceeds of the said loan which he intended to use in restoring the
amount malversed by him were expected to be released during the last
week of May, 1965. However, when the month of May, 1965 elapsed
without the amount involved having been restored, I conferred with
Mr. del Prado, my immediate superior and asked him whether we should
wait further for the release of the said loan in order that the amount
involved may be recovered. Mr. Prado consented to giving him a little
more time.
When Mr. Benito still failed to restore the amount in question by the end
of June, 1965, I got hold of him on July 5, 1965 and together with
Messrs. del Prado, Abarquez and Gatchalian, also of this Commission,
brought him before Deputy Commissioner AL Buenaventura and reported
the whole matter to the Deputy Commissioner. In the presence of
Messrs. del Prado, Abarquez, Gatchalian and myself, Mr. Benito admitted
readily and voluntarily before the Deputy Commissioner the commission
of the offense of malversation of public funds as stated above.
In view of the foregoing, it is recommended that Mr. Benito be charged
formally and that he be suspended from office immediately considering
the gravity of the offense committed by him.
DRO R. MONCAYOicer II
Benito was charged with dishonesty. He had admitted to Deputy Commissioner Alipio
Buenaventura that he had misappropriated his collections and spent the amount in nightclubs
and pleasure spots and for personal purposes. The decision dismissing him from the service
reads as follows (Exh. G):
This is an administrative case against Mr. Alberto R. Benito, Clerk I, Cash
Section, Administrative Division of this Office, for dishonesty.
The following excerpts from the letter dated October 22, 1965 of the
Commissioner of Civil Service connect respondent with the alleged
misappropriation of public funds representing his collection from the sale
of examination fee stamps and constitute the basis of the instant case
against him:
An investigation made by this Commission shows that
you malversed public funds in the amount of
P3,536.00 out of your collections from the sale of
examination fee stamps while in the performance of
your official duties as Clerk II in the Cash Section,
Administrative Division of this Office. It appears that
you succeeded in malversing the above-stated amount
from your cash collections by substituting in lieu
thereof money orders worth P3,436.00 remitted to this
Commission by the Provincial Treasurer of Negros
Occidental which were duly receipted for by you. It
also appears that you extracted from a bundle of
money orders remitted by the Provincial Treasurer of
Cotabato the amount of P100.00 in money orders
which were kept in one of the cabinets in the Cashier's
room.
Respondent denied the charge. He explained, among others, that money
orders were always kept in the cashier's safe and he had no access to
them. Although he admitted having received money orders amounting to
P3,436.00 remitted by the Provincial Treasurer of Negros Occidental and
another remittance of the Provincial Treasurer of Cotabato, he was
disclaimed having substituted the same for cash collections in his sale of
examination fee stamps. He reasoned out further that he could not be
charged with malversation of public funds inasmuch as he was not then an
accountable officer.
It appears that respondent, as Clerk in the Cash Section, performs, among
other duties, the selling of examination fee stamps, receiving payments
therefor, and receiving remittances in form of cash and / or money orders
from provincial treasurers in connection with examinations held in the
provinces. It was also his duty to issue official receipts for said
remittances. In the course of the performance of his duties, he received
said remittances from the Provincial Treasurers of Negros Occidental and
Cotabato, but no official receipts were issued by him, as shown by the
reply telegrams pertaining thereto. While records disclosed that
remittances from the province of Cotabato were submitted to the Cashier
of the Civil Service Commission, there is no evidence showing that
remittances from Negros Occidental were also submitted.
Investigation further reveals that 50 money orders were found missing
from the remittances of the Cotabato Provincial Treasurer which were kept
in the cabinet of the Cashier. On or about March 2, 1965, the Cashier of
28
 the Commission noticed that 15 money orders turned over by respondent
as part of his collections in the sale of examination fee stamps were among
the missing money orders. This triggered off the filing of this case against
the respondent.
On July 5, 1965, respondent admitted before the then Deputy
Commissioner Alipio Buenaventura having misappropriated an aggregate
amount ranging from P3,000 to P7,000, which he spent in night clubs,
pleasure spots and other personal benefits. Despite the testimonies of
several witnesses regarding his confession, including that of the then
Deputy Commissioner himself, respondent, when asked to take the stand,
denied his previous admission.
Instead, he argued that the cash and accounts of the Cashier of the Civil
Service Commission, when examined by representatives of the Auditor's
Office, did not indicate any shortage and therefore there was no
irregularity involved. This argument is not well taken. Inasmuch as the
remittances received by respondents from said Provincial Treasurers of
Negros Occidental and Cotabato were not in turn given corresponding
official receipts, naturally, the same were not reflected on the Cashier's
cash book.
The weakness of respondent's defense lies not so much on its failure to
establish convincingly his innocence as its irreconciliability with
established facts. Obviously, none of the circumstances in this case is
consistent with his claim of innocence. On the contrary, all of them put
together produce reasonable assurance of respondent's guilt.
In view of the foregoing, this Office finds respondent Alberto R. Benito
guilty as charged. Wherefore, he is dismissed from the service effective
upon his receipt of this decision.
In the interest of the service this decision is executed also on the date of
his receipt of this decision.
Benito appealed to the Civil Service Board of Appeals from the Commissioner's decision
dismissing him. The appeal was pending at the time when he assassinated Moncayo (Exh. I).
The foregoing antecedents of the assassination shed light on the remark which the victim,
Moncayo, allegedly made upon seeing Benito in the compound of the Civil Service
Commission near the canteen at eleven o'clock in the morning of December 12, 1969 (about
six hours before the shooting): "It's here and thieves." (Exh. A or 1); or, as Benito testified,
Moncayo said: "I do not know that this Civil Service is a stealer." (27 tsn December 26, 1969).
Mitigating circumstance of immediate vindication of a grave offense . - Benito contends that
Moncayo insulted him when he (Moncayo) remarked that a thief was loitering in the premises
of the Civil Service Commission. Benito argues that that remark "was tantamount to kicking a
man already down and to rubbing salt into a raw wound" and that, as it was made publicly and
in a loud voice, he was exposed to ridicule in the presence of his officemates.
Benito attached to his motion a copy of the decision of Judge Jose C. Colayco dated January
16, 1975, acquitting him of the charge of malversation in connection with his alleged
misappropriation of the fees collected from the examinees of the 1974 patrolman
examination. That same decision makes reference to Benito's exoneration from the
administrative charge. The court's decision reads as follows:
The accused is charged with malversation under the following
information:
That on or about and during the period comprised
between October 17, 1964, to February, 1965,
inclusive, in the City of Manila Philippines, the said
accused being then employed as Clerk I of the Civil
Service Commission, a branch of the government of
the Republic of the Philippines, among which duties
were to accept payments of fees collected from the
examinees of the 1964 Patrolman examination, and by
reason of his said position received the total amount of
P3,536.00, with the duty to turn over and / or account
for his collections to the cashier of the Civil Service
Commission immediately or upon demand but the said
accused once in possession of the said amount of
P3,536.00, with intent to defraud, despite repeated
demands made upon him to turn over and to account
for the same, did then and there willfully, unlawfully
and feloniously misappropriate,misapply and convert
and malverse the said amount to his own personal use
and benefit, to the detriment of public interest and to
the damage and prejudice of the said Civil Service
Commission in the said amount of P3,536.00,
Philippine currency.
Contrary to law.
The evidence shows that the accused had an appointment as clerk in the
Civil Service Commission from May 27, 1964, as clerk I, range 23 from
June 1, 1965 and as clerk I, range 26 from July 23, 1965 (Exhibits A, A -1,
A-2). He had the duty, among others, of selling Civil Service examination-
fee stamps and to receive payment therefor, as well as to receive
remittances of money orders and checks from the provincial treasurers for
payments of examination fee stamps (Exhibit B).
Teodoro Abarquez, a cashier of the Civil Service Commission during the
period alleged in the information, testified in his direct examination that
Benito was working in his office; that one of the duties that he assigned to
him was to sell examination fee stamps; that it was customary for him to
give stamps to Benito at the start of office hours in the morning and that
Benito turned over to him the proceeds of the sale, as well as the unsold
stamps, at the close of office hours in the afternoon; that one afternoon he
noticed that Benito turned over to him 50 money orders from Cotabato,
together with some cash, as proceeds of the sale of stamps for that
day; that he remembered that he was missing money orders from one of
his cabinets where he kept them; that when he discovered that the 50
money orders were those which were missing, he reported the matter to
Pedro Moncayo, the chief administrative officer; on March 1, 1965; that
the money orders were for P2.00 each, and were payments of the
examination fees from Cotabato (Exhibit F); that he discovered the loss of
the 50 money orders on February 28, 1965 and reported it to Moncayo on
March 1, 1965, together with the list of missing orders (Exhibit M); that
after receiving the report, Moncayo called Benito to the office of
Abarquez where he admitted taking the missing money orders; that
29
Moncayo submitted a memorandum to the Commissioner, dated October
21, 1965, after giving Benito a chance to refund the value of the money
orders (Exhibit O). Alipio Buenaventura, acting Deputy Commissioner at
the time, and Eliseo S. Gatchalian, budget officer, testified that when
Benito was confronted with the report of Moncayo and Abarquez,
Under cross-examination, Abarquez elucidated his testimony in his direct
examination and explained that when Benito turned over the proceeds of
the sale of stamps for that particular day, he kept the sum of P100.00 and
replaced it with the 50 money orders that he had taken from the cashier's
office to cover up the money that he had pocketed. When he was asked
when he discovered that Benito substituted the 50 money orders from
Cotabato, he replied that he checked them the following night (March 2,
1965) with the list of money orders remitted by the Provincial treasurer
(Exhibits F, F-1 ); but when he was confronted with his affidavit which he
executed on April 18, 1966 (Exhibit R), he reluctantly admitted that he
had only verified 15 money orders missing as of April 18,
He also admitted that the room where he kept the money orders in an
unlocked drawer was also occupied by two other persons, and that was the
first time he had not followed the usual procedure of keeping them in the
safe. He further admitted that, although regular examinations were
conducted during the period of October 1, 1964 to February 28, 1965 by
the examiners of the Civil Service Commission and the auditors of the
General Auditing Office, they did not find any shortage in the accounts of
Benito.
Finally, when the Court asked him what happened to the 50 money orders,
at first he hinted that they were not deposited with the Bureau of Treasury
because they were reported missing; but when pressed further, he said that
he deposited them, but did not issue any official receipt for them. When
asked if he had any evidence to show that they were actually deposited, he
admitted that he could not even remember when he deposited them.
The testimony of Teodoro Abarquez upon which the prosecution has built
its case, is too weak and shaky to sustain a finding of guilt because of his
glaring inconsistencies, contradictions and gaps in memory. The
prosecution has failed to present convincing evidence that the 50 money
orders were even lost: According to Abarquez he only verified the loss of
15 on April 18, 1966, although he testified earlier that he determined the
loss of 50 the night after March 1 , 1965.
The examiners of the Civil Service Commission and the auditors of the
General Auditing Office did not find any irregularity in the cash
accountability of Benito, according to Abarquez. This was corroborated by
Romeo Jarabelo, auditor of the Commission on Audit and Miguel Games,
auditing examiner assigned to the Civil Service Commission, who testified
for the accused. Benito was in fact exonorated the administrative charge
filed against him for the same time transaction (Exhibit E).
In fact, the testimony of Abarquez under cross-examination that he has not
issued any official receipt for the 50 money orders and his inability to
prove that he deposited them with the bureau of Treasury gives rise to the
suspicion that other persons, not the accused , have stolen the 50 missing
money orders. Even without taking into account the testimony of the
accused, who denied the testimonies of the witnesses for the prosecution,
the court believes that the prosecution has failed to prove the guilt of the
accused.
WHEREFORE, judgment is hereby rendered acquitting the accused, with
costs de oficio .
The Solicitor General argues that the defamatory remark imputed to Moncayo can not give
rise to the mitigating circumstance of vindication of a grave offense because it was not
specifically directed at Benito. The prosecution notes that the remark was uttered by Moncayo
at eleven o'clock in the morning. According to Benito's testimony (not consistent with his
confession), he saw Moncayo three hours later or at two o'clock in the afternoon and inquired
from him about his case and Moncayo said that he had already submitted his report and he
could not do anything more about Benito's case (26 tan). As already stated, the assassination
was perpetrated at around five o'clock in the afternoon of the same day.
Assuming that Moncayo's remark was directed at Benito, we see no justification under the
circumstances recited above for changing our prior opinion that the mitigating circumstance of
"haber ejecutado el hecho en vindicacion proxima de una ofensa grave, causada al autor del
delito," can not be appreciated in Benito's favor. As aptly stated by the ponente , Justice
Esguerra, Benito "had more than enough time to suppress his emotion over said remark if he
ever did resent it."
"La apreciacion de la proximidad queda al arbitrio del tribunal; el Tribunal Supremo (de
Espaa) no ha apreciado la proximidad ... cuando la offensa se realizo por la maana y el
delito tuvo lugar por la tarde (Sentencia de 11 novembre 1921) ; por regla general no es
proxima cuando transcurre tiempo suficiente para la razon recobre su imperio
sobreponiendose a la pasion (Sentencias de 28 may 1882, 4 novembre 1893, 24 junio 1908,
etc.) ... Si falta el requisito de la proximidad debe desestimarse (Sentencia de 3 julio 1950).
Exige gravedad en la ofensa y proximada en la reaccion. " (Note 9, 1 Cuello Candidate,
Derecho Penal, 1975 Ed., P. 564).
The Spanish Supreme Court also held that "no puede apreciarse esta circunstancia atenuante
en favor del autor de un homicidio cometido 'algunas horas despues de haberle invitado el
interfecto a renir y golpeado en el pecho con las manos', porque el tiempo transcurrido entre
los golpes y la muerte fue suficiente para que el animo del reo se serenase (Sentencia de 24
Junio 1908, Gaceta 28 August 1909, IV-V Enciclopedia Juridica Espaola 1182).
The six-hour interval between the alleged grave offense committed by Moncayo against
Benito and the assassination was more than sufficient to enable Benito to recover his
serenity. But instead of using that time to regain his composure, he evolved the plan of
liquidating Moncayo after office hours. Benito literally ambushed Moncayo just a few minutes
after the victim had left the office. He acted with treachery and evident premeditation in
perpetrating the cold-blooded murder.
The facts of the case strongly suggest that what really impelled Benito to assassinate Moncayo
was not the latter's alleged defamatory remark that the Civil Service Commission compound
was a hangout for a thief or for thieves but the refusal of Moncayo to change his report so as to
favor Benito. Benito did not act primarily to vindicate an alleged grave offense to himself but
mainly to chastise Moncayo for having exposed the alleged anomalies or defraudation
committed by Benito and for obstinately refusing to change his report.
Aggravating circumstance of disregard of rank . - Benito contends that disregard of rank
should not be considered against him because there was no evidence that he "deliberately
intended to offend or insult the rank" of Moncayo. That contention has no merit.
It should be borne in mind that the victim was a ranking official of the Civil Service
Commission and that the killer was a clerk in the same office who resented the victim's
30
condemnatory report against him. In that situation, the existence of the aggravating
circumstance of "desprecio del respeto que por la dignidad mereciere el ofendido" is manifest.
The instant case is similar to a case where the chief of the secret service division killed his
superior, the chief of police (People vs. Hollero, 88 Phil. 167) and to the killing of the acting
Spanish consul by his subordinate, the chancellor of the consulate, who had misappropriated
the funds of the consulate, which misappropriation was discovered by the victim (People vs.
Martinez Godinez, 106 Phil, 597, 606). In these two cases the murder was aggravated by
disregard of rank.
WHEREFORE, the motion for reconsideration is denied.
SO ORDERED.
CARPIO MORALES, J.:
In the evening of December 23, 1990, Hernani Quidato (the victim) was at a dance
hall in Purok 4, San Joaquin, Iloilo City in the company of Eduardo Selibio (Eduardo) and
Melchor Selibio (Melchor). And so were Jonathan Bacabac (Jonathan) and Edzel Talanquines
(Edzel).[1]
Jonathan and Edzel left the dance hall. Not long after, the victim and his companions
also left and on their way home, they encountered Jonathan and Edzel. It appears that the two
groups then and there figured in a misunderstanding.
On his way home, Jesus Delfin Rosadio (Jesus), who was also at the dance hall,
noticed a commotion. He soon saw that Melchor was hugging Edzel, and later tying Jonathan
with his hands. Still later, he saw the victim hit Edzel with a stick.[2] He thus told the victim and
his companions that Edzel is the son of Councilor Jose Talanquines, Jr. (Jose), whereupon
Eduardo[3] told him (Jesus) to go away for they might shoot him. Jesus thus left and proceeded
to Edzels residence to report to his father what he had witnessed. In the meantime, Edzel and
Jonathan managed to flee.

The victim and his companions thereafter headed for home in the course of which
they met Pat. Ricardo Bacabac (herein petitioner), together with Edzel and Jonathan who are his
nephews, and Edzels father, Jose, his mother, and two sisters at the corner of M.H. Del Pilar and
Sto. Domingo Streets. Petitioner and Jose were carrying M-16 armalites, while Jonathan and
Edzel were carrying a piece of wood and a revolver, respectively.

Jesus thereupon pointed to the victim and his companions as the ones who had
manhandled Jonathan and Edzel. The victim apologized, explaining that he and his companions
mistook Jonathan and Edzel for other persons. Jesus blurted out, however, You are just bragging
RICARDO BACABAC, G.R. No. 149372 that you are brave. You are only bullying small children.[4] Petitioner, at that instant, fired his
Petitioner, armalite into the air, while Jose fired his armalite (as if spraying his rifle from right to left) at
Present: the victim and Eduardo, even hitting Jonathan in the thigh as he (Jonathan) was on the move to
strike [the victim] with a piece of wood. Eduardo fell. And so did the victim who was in a
PUNO, C.J.,* kneeling position, and as he was raising his hands in surrender, Jose shot him again.
- versus - QUISUMBING, J., Chairperson,**
CARPIO,*** Meanwhile, Melchor escaped.[5]
CARPIO MORALES,
TINGA, and The victim, Eduardo, and Jonathan were brought to the hospital. The victim was
VELASCO, JR., JJ. pronounced dead on arrival. Eduardo died two hours later.
PEOPLE OF THE
PHILIPPINES, Promulgated: Post-mortem examination showed that the victim sustained two bullet wounds in the
Respondent. September 11, 2007 thoraco-abdominal regions and one bullet wound in the extremities, and that he died due to
maceration of the internal organs due to bullet wounds.[6] Eduardo sustained two bullet wounds
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - -x in the thoraco-abdominal region, and died of hemorrhage due to gunshot wounds. [7]

Two Informations for Murder were filed with the Regional Trial Court (RTC)
of Iloilo City against Jose, Edzel, Jonathan, Jesus, and the herein petitioner. The accusatory
DECISION portion of the first Information, docketed as Criminal Case No. 35783, reads:

31
 That on or about the 23rd day of December, 1990, in the
Municipality of San Joaquin, Province of Ilo-ilo, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another to
better realize their purpose, armed with two (2) M16
[a]rmalite [r]ifles and one (1) nickel-plated revolver of unknown make
and caliber, with deliberate intent and decided purpose to kill, with
treachery and evident premeditation and without any justifiable cause
or motive, did then and there willfully, unlawfully and feloniously
assault, attack and shoot one HERNANI QUIDATO with the firearms
they were then provided,
inflicting upon the latter gunshot wounds on the different parts of his
body which caused the immediate and instantaneous death of said
Hernani Quidato.
CONTRARY TO LAW.[8]
The accusatory portion of the second Information, docketed as Criminal Case No.
35784, reads:
That on or about the 23rd day of December, 1990, in the
Municipality of San Joaquin, Province of Iloilo, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another to better
realize their purpose, armed with two (2) M16 [a]rmalite [r]ifles and
one (1) nickel-plated revolver of unknown make and caliber, with
deliberate intent and decided purpose to kill, with treachery and evident
premeditation and without any justifiable cause or motive, did then and
willfully, unlawfully and feloniously assault, attack and shoot one
EDUARDO SELIBIO with the firearms they were then provided
inflicting upon the latter gunshot wounds on the different parts of his
body which caused the immediate and instantaneous death of said
Eduardo Selibio.
CONTRARY TO LAW.[9]
The cases were jointly tried.
By Decision of April 30, 1993, Branch 39 of the Iloilo RTC, finding the presence of
conspiracy among petitioner and his co-accused,[10] convicted them of murder qualified by
treachery.[11] The dispositive portion of the decision of the trial court reads:
WHEREFORE, premises considered, judgment is hereby
rendered as follows:
In Criminal Case No. 35783, all the accused, namely;
Jose Talanquines, Jr., Edzel Talanquines, Jonathan Bacabac, Pat.
Ricardo Bacabac, and Jesus Delfin Rosadio are hereby found guilty
beyond reasonable doubt of the crime of murder and there being no
aggravating circumstances with one mitigating circumstance
[immediate vindication for Jose and Jesus; voluntary surrender for Pat.
Ricardo Bacabac[12]], and applying the indeterminate sentence law,
accused Jose Talanquines, Jr., Ricardo Bacabac and Jesus Delfin
Rosadio are hereby sentenced each to suffer imprisonment for a period
of 10 years and 1 day, as minimum, to 17 years, 4 months and 1 day as
maximum; while accused Edzel Talanquines and Jonathan Bacabac
who are entitled to the privileged mitigating circumstance of minority
and the ordinary mitigating circumstance of immediate vindication of a
grave offense are hereby sentenced each to suffer imprisonment for a
period of four (4) years, 2 months, and 1 day, as minimum, to 10 years
and 1 day as maximum. All the accused are ordered to pay jointly and
severally the heirs of the deceased Hernani Quidato, the amount
of P50,000.00 for his wrongful death; P20,000.00 for moral
damages; P10,000.00 for attorneys fees; and the costs of the
suit. (Underscoring supplied)
In Criminal Case No. 35784, judgment is hereby rendered as
follows:
All the accused, namely; Jose Talanquines, Jr., Edzel
Talanquines, Jonathan Bacabac, Pat. Ricardo Bacabac and Jesus Delfin
Rosadio are hereby found guilty of the crime of Murder and there being
no aggravating circumstance with one mitigating circumstance, accused
Jose Talanquines, Jr., Ricardo Bacabac and Jesus Delfin Rosadio are
hereby sentenced each to suffer imprisonment for a period of 10 years
and 1 day as minimum, to 17 years, 4 months and 1 day, as maximum;
while accused Edzel Talanquines and Jonathan Bacabac who are
entitled to the privileged mitigating circumstance of minority and the
ordinary mitigating circumstance of immediate vindication of a grave
offense, are hereby sentenced to suffer imprisonment for a period of 4
years, 2 months and 1 day, as minimum to 10 years and 1 day as
maximum. All the accused are ordered to pay jointly and severally the
heirs of the deceased Eduardo Selibio, the amount of P50,000.000 for
his wrongful death; P20,000.00 for moral damages; P10,000.00 for
attorneys fees; and the costs of the suit. (Underscoring supplied)
Accused Jesus Delfin Rosadio, who is detained, is hereby
credited with the number of days he spent under detention, if he is
qualified.
SO ORDERED.[13]
While petitioner and his co-accused filed a Notice of Appeal[14] which was given due
course,[15]
only petitioner filed a Brief, albeit beyond the extensions granted to him, drawing the
Court of Appeals to dismiss his appeal.[16] The conviction of petitioners co-accused had thus
become final and executory.
32
 Petitioners Motion for Reconsideration[17] of the dismissal of his appeal having been
denied,[18] he filed a Petition for Review with this Court which, by Resolution of October 22,
1997, directed the Court of Appeals to reinstate petitioners appeal.[19]
By Decision[20] of June 28, 1999, the Court of Appeals affirmed the trial courts
decision. Entry of final judgment was made by the Court of Appeals on July 22, 1999.[21]
The trial court thereafter issued a February 7, 2000 Order directing the issuance of
warrants for the arrest of the accused.[22] Except petitioner, all were arrested.[23]
On February 24, 2000, petitioner filed before the appellate court a Petition for Relief
from Judgment, Order, and/or Denial of Appeal[24] which was granted,[25] hence, the Entry of
Judgment issued by the appellate court on July 22, 1999 was set aside. He thereafter filed a
Motion for Reconsideration[26] of the appellate courts June 28, 1999 Decision which was denied
by Resolution of August 8, 2001;[27] hence, the present Petition for Review on Certiorari.[28]
Petitioner assails the Court of Appeals decision as follows:
First: Contrary to its conclusion on the basis of the facts of
the case, Petitioner may not be deemed to be in conspiracy with the
other Accused.
Second: Contrary to its conclusion, there was no treachery.
Third: Contrary to its conclusion, Petitioner, assuming in
gratis argumenti the correctness of the pronouncement of guilt, should
have been credited with the mitigating circumstance of immediate
vindication of a grave offense, in the same manner that the other
Accused were so credited.
Fourth: Contrary to its conclusion, the guilt of the Petitioner
has not been proved beyond reasonable doubt; hence, by the equipoise
rule, should have been acquitted.
Fifth: Contrary to its conclusion, Petitioner is not civilly
liable.[29] (Emphasis in the original)
The Court notes that the first, second, and fifth arguments of petitioner were, in the main, raised
before the appellate court.[30]
During the pendency of the present petition, petitioner, through counsel, filed before
the trial court an Urgent Ex Parte Alternative Motions (Re: Pat. Ricardo Bacabacs Motion for
Reconsideration and/or to Vacate the Order dated February 7, 2000 [directing the arrest of the
accused] and to Recall the Warrant of Arrest Dated the Same Date in so far as the Accused Pat.
Ricardo Bacabac Only is Concerned).[31] The trial court denied[32] the motion as it did
deny[33] petitioners motion for reconsideration,[34] drawing petitioner to file before this Court
on October 5, 2006 a Motion to Vacate Order for the Arrest of the Accused and the Warrant of
Arrest Issued by the Regional Trial Court (Branch 39) of Iloilo City.[35]
In his Motion to Vacate Order for the Arrest of the Accused and the Warrant of Arrest
Issued by the Regional Trial Court . . . , petitioner argues that
[T]he basis of the RTCs Order of February 7, 2000 was
the Entry of Judgment by the Court of Appeals dated 25 November
1999.[36] BUT THE SAID ENTRY OF JUDGMENT was
ALREADY VACATED and SET-ASIDE BY THE COURT OF
APPEALS ITSELF ON ITS RESOLUTION DATED 13
DECEMBER 2000. Therefore, the RTCs Order of 7 February
2000 was ipso facto vacated.[37] (Emphasis in the original)
and that
[T]he second sentence of Section 7, Rule 65 of the Rules of
Court cited by the Order of 13 July 2006 does not apply to the case at
bench because the main case on the merits which originated in the
RTC as Criminal Cases Nos. 35783-84, went to the Court of Appeals as
CA-G.R. No. 16348 and is now pending in the Supreme Court (Third
Division) as G.R. No. 149372 because of the Petition for Review On
Certiorari filed by Movant herein x x x.THE MAIN CASE IS NO
LONGER PENDING IN THIS HONORABLE COURT
[sic]. THEREFORE, THE RTC HAS NO JURISDICTION TO
REITERATE AND EXECUTE THE ORDER OF 7 FEBRUARY
2000.[38] (Emphasis in the original)
As this Court hereby affirms petitioners conviction, resolution of his Motion to Vacate
. . . is rendered unnecessary.
Petitioner, denying the presence of conspiracy on his part, argues:
[The petitioner] affirms that he was at the scene of the
incident and merely fired a warning shot into the air to respond to a
public disturbance, and his firing a warning shot into the air was
intended to avert further acts of violence; both circumstances,
therefore, being merely and solely in pursuance to his avowed duty to
keep peace and order in the community and clearly not to be part of any
alleged community of design to kill the victims.
xxxx
Another indication that there was no unity of purpose and
of execution in so far as the Petitioner is concerned is his conduct after
Jose Talanquines, Jr. shot the victims. Eyewitness accounts state that
after that lone warning shot, closely followed by Jose Talanquines, Jr.
firing at the victims, the petitioner merely stood there and did nothing
and said nothing. This is obviously because he was himself stunned by
the fast happening of events. The investigating police officer, PO3
NESTOR SANTACERA, on rebuttal, likewise, admitted to the facts
that ten (10) minutes after the incident, they (the police) responded and
upon arrival thereat, learned that the Petitioner already reported the
33
incident to their station and that it was the Petitioner who first
reported the shooting incident officially to their office. The
aforedescribed proven conduct of the Petitioner during and immediately
after the incident in question are, Petitioner respectfully
submits, inconsistent with what a co-conspirators is [sic] wont to do
under the circumstances. It is submitted instead that his conduct on the
contrary underscores the lack or want of community of purpose and
interest in the killing incident to make him criminally liable under the
conspiracy theory.
Finally, in connection with the conspiracy theory and anent
the finding below that the Petitioner and his Co-Accused waited for
the victims arrival at the corner of St. Domingo and M.H. del Pilar
Streets, it is asserted that the same runs counter to the natural and
ordinary experience of things and event [sic], and raises a cloud of
doubt over the correctness of the lower Courts decision which are based
on the Prosecutions version of the incident.Since, according to the
prosecution, the Petitioner and the other Accused were armed with high-
powered firearms (armalite rifles and revolver); they waited at the
stated street corner for thirty (30) minutes; the stated street corner
was well lighted; accompanying them were the wife and two (2)
young daughters of Jose Talanquines, Jr; and they stood there
conversing with the group of Elston Saquian [a prosecution witness
who testified that he saw the petitioner and his co-accused waiting for
the victims[39]] and admitting that they were waiting for certain persons
who mauled Edzel Talanquines and Jonathan Bacabac.
In other words, the lower Courts gave credence to
an improbable scenario painting the Petitioner, known to the place as
a police officer, and co-accused to have recklessly and uncaringly
displayed, for all and sundry to see, their alleged criminal intentions. It
would indeed be the height of foolishness for them to be by a well
lighted street corner, perhaps even well traversed, conspicuously fully
armed, waiting for persons who were not even sure would pass by such
place, and apparently willing to admit to other passers-by that they were
indeed waiting for the persons who mauled Edzel and Jonathan, and
consequently give out the impression that they were intending to
retaliatewhich is what the lower Courts regrettably observed.
xxxx
Likewise, the presence of the wife and two (2) young
daughters of the accused Jose Talanquines, Jr. at the scene of the
alleged crimes, as testified to by the prosecution witnesses and believed
by the lower Courts, assumes importance in the matter of determining
which version of the incident is correct.
The Prosecution places the wife and the daughters with the
alleged fully armed Petitioner and Co-Accused at Sto. Domingo Streets,
also waiting during the same length of time as the men for the (probable)
arrival of the group of the victims. But such a scenario is, likewise,
unnatural. Because, will the male relatives unhesitatingly expose
their defenseless womenfolk to imminent danger?[40] (Citations
omitted, emphasis in the original, and underscoring supplied)
Petitioners argument that it is improbable for him and his co-accused to have waited
for the victims at a well-lighted street corner does not persuade. Crimes are known to have been
brazenly committed by perpetrators, undeterred by the presence of onlookers or even of peace
officers, completely impervious of the inevitability of criminal prosecution and conviction. [41]
From the mode and manner in which the crimes were perpetrated, the conduct of
petitioner before, during, and after their commission, [42] and the conditions attendant
thereto,[43] conspiracy, which need not be proved by direct evidence, is deduced. [44] Petitioners
firing of his armalite could not have amounted to none other than lending moral assistance to his
co-accused, thereby indicating the presence of conspiracy.[45]
As the appellate court observed which is quoted with approval:
In the present recourse, when informed that Jonathan and
Edzel were being manhandled and assaulted by male
persons, Appellant armed himself with an M-16 armalite. Jose
Talanquines, Jr., the father of Edzel, followed suit and armed himself
with an M-16 armalite gun. Jesus armed himself with a revolver while
Jonathan armed himself with a piece of wood. Jonathan and Edzel were
nephews of the Appellant who resided in the house of Jose Talanquines,
Jr. All the Accused including the Appellant then proceeded
posthaste to the corner of M.H. del Pilar corner Sto. Domingo
Streets where the culprits would pass by and waited for the advent
of the culprits. Even as Hernani apologized for his and his
companions assault of Edzel and Jonathan, Jesus berated Hernani
and his companions. Almost simultaneously, the Appellant fired his
gun into the air as Jonathan lunged at Hernani and his companions
to hit them with the piece of wood. Almost simultaneously, Jose
Talaquines, Jr. fired his gun at Hernani and shot Eduardo hitting them
and, in the process, hitting his nephew, Jonathan Bacabac. The
Appellant did not lift a finger when Jose fired at and shot Hernani
and Eduardo. He stood by as Jose shot Hernani anew when the
latter on bended knees, raised his two (2) hands, in surrender. The
Appellant and the other Accused then fled from the scene, with
their respective firearms and weapons. The overt act of the Accused
and the Appellant in conjunto, constitute proof of conspiracy.
The Appellant and Jose were armed with high-powered
guns. Jesus was armed with a revolver. The nature of the weapons of
the Accused evinced a common desire to do away with the culprits,
not merely to scare them.
What is outrageous is that the Appellant was a
policeman. He could very well have just arrested the culprits as
34
 they sauntered by and brought them to the police station for the
requisite investigation and the institution of criminal complaints, if
warranted. He could have dissuaded Jose and Jesus and assured
them that the culprits will be duly investigated and charged if
warranted. The Appellant did not. He armed himself with an M-16
armalite x x x. [T]he three (3) positioned themselves at the corner of
M.H. del Pilar and Sto. Domingo Streets for the culprits to
arrive. Hernani and his companions were doomed. It may be true that
the Appellant did not aim his gun at the deceased but the same is peu de
chose. By his overt acts, in unison with the other Accused and his
kinship with Jonathan and Edzel, We are convinced that he conspired
with Jose Talanquines, Jr. and the other Accused to achieve a common
purpose to kill Hernani and Eduardo.[46] (Emphasis and underscoring
supplied)
As for petitioners invocation of the mitigating circumstance of immediate vindication
of a grave offense, it fails. For such mitigating circumstance to be credited, the act should be,
following Article 13, paragraph 5 of the Revised Penal Code, committed in the immediate
vindication of a grave offense to the one committing the felony (delito), his spouse,
ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by
affinity within the same degree.[59] The offense committed on Edzel was hitting his ear with
a stick[60] (according to Jesus), a bamboo pole (according to Edzel).[61]By Edzels own
clarification, [he] was hit at [his] ear, not on [his] head. [62] That act would certainly not be
classified as grave offense. And Edzel is petitioners nephew, hence, not a relative by affinity
within the same degree contemplated in Article 13, paragraph 5 of the Revised Penal Code.
WHEREFORE, the petition is DISMISSED and the appellate courts decision
is AFFIRMED.

Petitioners failure to assist the victims after the shooting reinforces this Courts Costs against petitioner.
appreciation of community of design between him and his co-accused to harm the victims. That
it was he who first officially reported the shooting to the police station[47] does not make him any SO ORDERED.
less a conspirator. Voluntary surrender and non-flight do not conclusively prove
innocence.[48] Besides, a conspirator who wants to extricate himself from criminal liability
usually performs an overt act to dissociate or detach himself from the unlawful plan to commit
the felony while the commission of the felony is in progress.[49] In petitioners case, he reported
the shooting incident after it had already taken place. In legal contemplation, there was no longer
a conspiracy to be repudiated since it had already materialized. [50]

Contrary to petitioners assertion,[51] the appellate court did not err in appreciating the
presence of conspiracy despite its finding that there was no evident premeditation. This Courts
pronouncement that conspiracy presupposes the existence of evident premeditation [52] does not
necessarily imply that the converse that evident premeditation presupposes the existence of a
conspiracy is true. In any event, a link between conspiracy and evident premeditation is
presumed only where the conspiracy is directly established and not where conspiracy is only
implied, as in the present case.[53]

Neither did the appellate court err in finding the presence of treachery. Treachery,
under Article 14, paragraph 16 of the Revised Penal Code, is present when the offender commits
any of the crimes against the person, employing means, methods, or forms in the execution
thereof which tend directly and specially to insure its execution, without risk to himself arising
from the defense which the offended party might make.

What is decisive in treachery is that the attack was executed in such a manner as to
make it impossible for the victim to retaliate.[54] In the case at bar, petitioner, a policeman, and
his co-accused were armed with two M-16 armalites and a revolver. The victim and his
companions were not armed.[55] The attack was sudden and unexpected,[56] and the victim was
already kneeling in surrender when he was shot the second time. Clearly, the victim and his
companion Eduardo had no chance to defend themselves or retaliate.
Petitioner nevertheless argues that he not being the trigger man, it is not logical nor
legal to hold him guilty of treachery.[57] This argument falls in the face of the settled doctrine
that once conspiracy is established, the act of one is the act of all even if not all actually hit and
killed the victim.[58]

35
 mistook Jonathan and Edzel for other persons. Jesus blurted out, however, You are just bragging
RICARDO BACABAC, G.R. No. 149372 that you are brave. You are only bullying small children.[4] Petitioner, at that instant, fired his
Petitioner, armalite into the air, while Jose fired his armalite (as if spraying his rifle from right to left) at
Present: the victim and Eduardo, even hitting Jonathan in the thigh as he (Jonathan) was on the move to
strike [the victim] with a piece of wood. Eduardo fell. And so did the victim who was in a
PUNO, C.J.,* kneeling position, and as he was raising his hands in surrender, Jose shot him again.
- versus - QUISUMBING, J., Chairperson,**
CARPIO,*** Meanwhile, Melchor escaped.[5]
CARPIO MORALES,
TINGA, and The victim, Eduardo, and Jonathan were brought to the hospital. The victim was
VELASCO, JR., JJ. pronounced dead on arrival. Eduardo died two hours later.
PEOPLE OF THE
PHILIPPINES, Promulgated: Post-mortem examination showed that the victim sustained two bullet wounds in the
Respondent. September 11, 2007 thoraco-abdominal regions and one bullet wound in the extremities, and that he died due to
maceration of the internal organs due to bullet wounds.[6] Eduardo sustained two bullet wounds
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - -x in the thoraco-abdominal region, and died of hemorrhage due to gunshot wounds. [7]

Two Informations for Murder were filed with the Regional Trial Court (RTC)
of Iloilo City against Jose, Edzel, Jonathan, Jesus, and the herein petitioner. The accusatory
DECISION portion of the first Information, docketed as Criminal Case No. 35783, reads:

That on or about the 23rd day of December, 1990, in the

CARPIO MORALES, J.:
In the evening of December 23, 1990, Hernani Quidato (the victim) was at a dance
hall in Purok 4, San Joaquin, Iloilo City in the company of Eduardo Selibio (Eduardo) and
Melchor Selibio (Melchor). And so were Jonathan Bacabac (Jonathan) and Edzel Talanquines
(Edzel).[1]
Jonathan and Edzel left the dance hall. Not long after, the victim and his companions
also left and on their way home, they encountered Jonathan and Edzel. It appears that the two
groups then and there figured in a misunderstanding.
On his way home, Jesus Delfin Rosadio (Jesus), who was also at the dance hall,
noticed a commotion. He soon saw that Melchor was hugging Edzel, and later tying Jonathan
with his hands. Still later, he saw the victim hit Edzel with a stick.[2] He thus told the victim and
his companions that Edzel is the son of Councilor Jose Talanquines, Jr. (Jose), whereupon
Eduardo[3] told him (Jesus) to go away for they might shoot him. Jesus thus left and proceeded
to Edzels residence to report to his father what he had witnessed. In the meantime, Edzel and
Jonathan managed to flee.
Municipality of San Joaquin, Province of Ilo-ilo, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another to
better realize their purpose, armed with two (2) M16
[a]rmalite [r]ifles and one (1) nickel-plated revolver of unknown make
and caliber, with deliberate intent and decided purpose to kill, with
treachery and evident premeditation and without any justifiable cause
or motive, did then and there willfully, unlawfully and feloniously
assault, attack and shoot one HERNANI QUIDATO with the firearms
they were then provided,
inflicting upon the latter gunshot wounds on the different parts of his
body which caused the immediate and instantaneous death of said
Hernani Quidato.
CONTRARY TO LAW.[8]
The accusatory portion of the second Information, docketed as Criminal Case No.
35784, reads:

The victim and his companions thereafter headed for home in the course of which
they met Pat. Ricardo Bacabac (herein petitioner), together with Edzel and Jonathan who are his
nephews, and Edzels father, Jose, his mother, and two sisters at the corner of M.H. Del Pilar and
Sto. Domingo Streets. Petitioner and Jose were carrying M-16 armalites, while Jonathan and
Edzel were carrying a piece of wood and a revolver, respectively.
Jesus thereupon pointed to the victim and his companions as the ones who had
manhandled Jonathan and Edzel. The victim apologized, explaining that he and his companions
That on or about the 23rd day of December, 1990, in the
Municipality of San Joaquin, Province of Iloilo, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another to better
realize their purpose, armed with two (2) M16 [a]rmalite [r]ifles and
one (1) nickel-plated revolver of unknown make and caliber, with
deliberate intent and decided purpose to kill, with treachery and evident
premeditation and without any justifiable cause or motive, did then and

36
 willfully, unlawfully and feloniously assault, attack and shoot one
EDUARDO SELIBIO with the firearms they were then provided
inflicting upon the latter gunshot wounds on the different parts of his
body which caused the immediate and instantaneous death of said
Eduardo Selibio.
CONTRARY TO LAW.[9]
The cases were jointly tried.
By Decision of April 30, 1993, Branch 39 of the Iloilo RTC, finding the presence of
conspiracy among petitioner and his co-accused,[10] convicted them of murder qualified by
treachery.[11] The dispositive portion of the decision of the trial court reads:
WHEREFORE, premises considered, judgment is hereby
rendered as follows:
In Criminal Case No. 35783, all the accused, namely;
Jose Talanquines, Jr., Edzel Talanquines, Jonathan Bacabac, Pat.
Ricardo Bacabac, and Jesus Delfin Rosadio are hereby found guilty
beyond reasonable doubt of the crime of murder and there being no
aggravating circumstances with one mitigating circumstance
[immediate vindication for Jose and Jesus; voluntary surrender for Pat.
Ricardo Bacabac[12]], and applying the indeterminate sentence law,
accused Jose Talanquines, Jr., Ricardo Bacabac and Jesus Delfin
Rosadio are hereby sentenced each to suffer imprisonment for a period
of 10 years and 1 day, as minimum, to 17 years, 4 months and 1 day as
maximum; while accused Edzel Talanquines and Jonathan Bacabac
who are entitled to the privileged mitigating circumstance of minority
and the ordinary mitigating circumstance of immediate vindication of a
grave offense are hereby sentenced each to suffer imprisonment for a
period of four (4) years, 2 months, and 1 day, as minimum, to 10 years
and 1 day as maximum. All the accused are ordered to pay jointly and
severally the heirs of the deceased Hernani Quidato, the amount
of P50,000.00 for his wrongful death; P20,000.00 for moral
damages; P10,000.00 for attorneys fees; and the costs of the
suit. (Underscoring supplied)
In Criminal Case No. 35784, judgment is hereby rendered as
follows:
All the accused, namely; Jose Talanquines, Jr., Edzel
Talanquines, Jonathan Bacabac, Pat. Ricardo Bacabac and Jesus Delfin
Rosadio are hereby found guilty of the crime of Murder and there being
no aggravating circumstance with one mitigating circumstance, accused
Jose Talanquines, Jr., Ricardo Bacabac and Jesus Delfin Rosadio are
hereby sentenced each to suffer imprisonment for a period of 10 years
and 1 day as minimum, to 17 years, 4 months and 1 day, as maximum;
while accused Edzel Talanquines and Jonathan Bacabac who are
entitled to the privileged mitigating circumstance of minority and the
ordinary mitigating circumstance of immediate vindication of a grave
offense, are hereby sentenced to suffer imprisonment for a period of 4
years, 2 months and 1 day, as minimum to 10 years and 1 day as
maximum. All the accused are ordered to pay jointly and severally the
heirs of the deceased Eduardo Selibio, the amount of P50,000.000 for
his wrongful death; P20,000.00 for moral damages; P10,000.00 for
attorneys fees; and the costs of the suit. (Underscoring supplied)
Accused Jesus Delfin Rosadio, who is detained, is hereby
credited with the number of days he spent under detention, if he is
qualified.
SO ORDERED.[13]
While petitioner and his co-accused filed a Notice of Appeal[14] which was given due
course,[15] only petitioner filed a Brief, albeit beyond the extensions granted to him, drawing the
Court of Appeals to dismiss his appeal.[16] The conviction of petitioners co-accused had thus
become final and executory.
Petitioners Motion for Reconsideration[17] of the dismissal of his appeal having been
denied,[18] he filed a Petition for Review with this Court which, by Resolution of October 22,
1997, directed the Court of Appeals to reinstate petitioners appeal.[19]
By Decision[20] of June 28, 1999, the Court of Appeals affirmed the trial courts
decision. Entry of final judgment was made by the Court of Appeals on July 22, 1999.[21]
The trial court thereafter issued a February 7, 2000 Order directing the issuance of
warrants for the arrest of the accused.[22] Except petitioner, all were arrested.[23]
On February 24, 2000, petitioner filed before the appellate court a Petition for Relief
from Judgment, Order, and/or Denial of Appeal[24] which was granted,[25] hence, the Entry of
Judgment issued by the appellate court on July 22, 1999 was set aside. He thereafter filed a
Motion for Reconsideration[26] of the appellate courts June 28, 1999 Decision which was denied
by Resolution of August 8, 2001;[27] hence, the present Petition for Review on Certiorari.[28]
Petitioner assails the Court of Appeals decision as follows:
First: Contrary to its conclusion on the basis of the facts of
the case, Petitioner may not be deemed to be in conspiracy with the
other Accused.
Second: Contrary to its conclusion, there was no treachery.
Third: Contrary to its conclusion, Petitioner, assuming in
gratis argumenti the correctness of the pronouncement of guilt, should
have been credited with the mitigating circumstance of immediate
vindication of a grave offense, in the same manner that the other
Accused were so credited.
37
 Fourth: Contrary to its conclusion, the guilt of the Petitioner
has not been proved beyond reasonable doubt; hence, by the equipoise
rule, should have been acquitted.
Fifth: Contrary to its conclusion, Petitioner is not civilly
liable.[29] (Emphasis in the original)
The Court notes that the first, second, and fifth arguments of petitioner were, in the main, raised
before the appellate court.[30]
During the pendency of the present petition, petitioner, through counsel, filed before
the trial court an Urgent Ex Parte Alternative Motions (Re: Pat. Ricardo Bacabacs Motion for
Reconsideration and/or to Vacate the Order dated February 7, 2000 [directing the arrest of the
accused] and to Recall the Warrant of Arrest Dated the Same Date in so far as the Accused Pat.
Ricardo Bacabac Only is Concerned).[31] The trial court denied[32] the motion as it did
deny[33] petitioners motion for reconsideration,[34] drawing petitioner to file before this Court
on October 5, 2006 a Motion to Vacate Order for the Arrest of the Accused and the Warrant of
Arrest Issued by the Regional Trial Court (Branch 39) of Iloilo City.[35]
In his Motion to Vacate Order for the Arrest of the Accused and the Warrant of Arrest
Issued by the Regional Trial Court . . . , petitioner argues that
[T]he basis of the RTCs Order of February 7, 2000 was
the Entry of Judgment by the Court of Appeals dated 25 November
1999.[36] BUT THE SAID ENTRY OF JUDGMENT was
ALREADY VACATED and SET-ASIDE BY THE COURT OF
APPEALS ITSELF ON ITS RESOLUTION DATED 13
DECEMBER 2000. Therefore, the RTCs Order of 7 February
2000 was ipso facto vacated.[37] (Emphasis in the original)
and that
[T]he second sentence of Section 7, Rule 65 of the Rules of
Court cited by the Order of 13 July 2006 does not apply to the case at
bench because the main case on the merits which originated in the
RTC as Criminal Cases Nos. 35783-84, went to the Court of Appeals as
CA-G.R. No. 16348 and is now pending in the Supreme Court (Third
Division) as G.R. No. 149372 because of the Petition for Review On
Certiorari filed by Movant herein x x x.THE MAIN CASE IS NO
LONGER PENDING IN THIS HONORABLE COURT
[sic]. THEREFORE, THE RTC HAS NO JURISDICTION TO
REITERATE AND EXECUTE THE ORDER OF 7 FEBRUARY
2000.[38] (Emphasis in the original)
As this Court hereby affirms petitioners conviction, resolution of his Motion to Vacate
. . . is rendered unnecessary.
Petitioner, denying the presence of conspiracy on his part, argues:
[The petitioner] affirms that he was at the scene of the
incident and merely fired a warning shot into the air to respond to a
public disturbance, and his firing a warning shot into the air was
intended to avert further acts of violence; both circumstances,
therefore, being merely and solely in pursuance to his avowed duty to
keep peace and order in the community and clearly not to be part of any
alleged community of design to kill the victims.
xxxx
Another indication that there was no unity of purpose and
of execution in so far as the Petitioner is concerned is his conduct after
Jose Talanquines, Jr. shot the victims. Eyewitness accounts state that
after that lone warning shot, closely followed by Jose Talanquines, Jr.
firing at the victims, the petitioner merely stood there and did nothing
and said nothing. This is obviously because he was himself stunned by
the fast happening of events. The investigating police officer, PO3
NESTOR SANTACERA, on rebuttal, likewise, admitted to the facts
that ten (10) minutes after the incident, they (the police) responded and
upon arrival thereat, learned that the Petitioner already reported the
incident to their station and that it was the Petitioner who first
reported the shooting incident officially to their office. The
aforedescribed proven conduct of the Petitioner during and immediately
after the incident in question are, Petitioner respectfully
submits, inconsistent with what a co-conspirators is [sic] wont to do
under the circumstances. It is submitted instead that his conduct on the
contrary underscores the lack or want of community of purpose and
interest in the killing incident to make him criminally liable under the
conspiracy theory.
Finally, in connection with the conspiracy theory and anent
the finding below that the Petitioner and his Co-Accused waited for
the victims arrival at the corner of St. Domingo and M.H. del Pilar
Streets, it is asserted that the same runs counter to the natural and
ordinary experience of things and event [sic], and raises a cloud of
doubt over the correctness of the lower Courts decision which are based
on the Prosecutions version of the incident.Since, according to the
prosecution, the Petitioner and the other Accused were armed with high-
powered firearms (armalite rifles and revolver); they waited at the
stated street corner for thirty (30) minutes; the stated street corner
was well lighted; accompanying them were the wife and two (2)
young daughters of Jose Talanquines, Jr; and they stood there
conversing with the group of Elston Saquian [a prosecution witness
who testified that he saw the petitioner and his co-accused waiting for
the victims[39]] and admitting that they were waiting for certain persons
who mauled Edzel Talanquines and Jonathan Bacabac.
In other words, the lower Courts gave credence to
an improbable scenario painting the Petitioner, known to the place as
a police officer, and co-accused to have recklessly and uncaringly
38
 displayed, for all and sundry to see, their alleged criminal intentions. It
would indeed be the height of foolishness for them to be by a well
lighted street corner, perhaps even well traversed, conspicuously fully
armed, waiting for persons who were not even sure would pass by such
place, and apparently willing to admit to other passers-by that they were
indeed waiting for the persons who mauled Edzel and Jonathan, and
consequently give out the impression that they were intending to
retaliatewhich is what the lower Courts regrettably observed.
xxxx
Likewise, the presence of the wife and two (2) young
daughters of the accused Jose Talanquines, Jr. at the scene of the
alleged crimes, as testified to by the prosecution witnesses and believed
by the lower Courts, assumes importance in the matter of determining
which version of the incident is correct.
The Prosecution places the wife and the daughters with the
alleged fully armed Petitioner and Co-Accused at Sto. Domingo Streets,
also waiting during the same length of time as the men for the (probable)
arrival of the group of the victims. But such a scenario is, likewise,
unnatural. Because, will the male relatives unhesitatingly expose
their defenseless womenfolk to imminent danger?[40] (Citations
omitted, emphasis in the original, and underscoring supplied)
Petitioners argument that it is improbable for him and his co-accused to have waited
for the victims at a well-lighted street corner does not persuade. Crimes are known to have been
brazenly committed by perpetrators, undeterred by the presence of onlookers or even of peace
officers, completely impervious of the inevitability of criminal prosecution and conviction. [41]
From the mode and manner in which the crimes were perpetrated, the conduct of
petitioner before, during, and after their commission, [42] and the conditions attendant
thereto,[43] conspiracy, which need not be proved by direct evidence, is deduced.[44] Petitioners
firing of his armalite could not have amounted to none other than lending moral assistance to his
co-accused, thereby indicating the presence of conspiracy.[45]
As the appellate court observed which is quoted with approval:
In the present recourse, when informed that Jonathan and
Edzel were being manhandled and assaulted by male
persons, Appellant armed himself with an M-16 armalite. Jose
Talanquines, Jr., the father of Edzel, followed suit and armed himself
with an M-16 armalite gun. Jesus armed himself with a revolver while
Jonathan armed himself with a piece of wood. Jonathan and Edzel were
nephews of the Appellant who resided in the house of Jose Talanquines,
Jr. All the Accused including the Appellant then proceeded
posthaste to the corner of M.H. del Pilar corner Sto. Domingo
Streets where the culprits would pass by and waited for the advent
of the culprits. Even as Hernani apologized for his and his
companions assault of Edzel and Jonathan, Jesus berated Hernani
and his companions. Almost simultaneously, the Appellant fired his
gun into the air as Jonathan lunged at Hernani and his companions
to hit them with the piece of wood. Almost simultaneously, Jose
Talaquines, Jr. fired his gun at Hernani and shot Eduardo hitting them
and, in the process, hitting his nephew, Jonathan Bacabac. The
Appellant did not lift a finger when Jose fired at and shot Hernani
and Eduardo. He stood by as Jose shot Hernani anew when the
latter on bended knees, raised his two (2) hands, in surrender. The
Appellant and the other Accused then fled from the scene, with
their respective firearms and weapons. The overt act of the Accused
and the Appellant in conjunto, constitute proof of conspiracy.
The Appellant and Jose were armed with high-powered
guns. Jesus was armed with a revolver. The nature of the weapons of
the Accused evinced a common desire to do away with the culprits,
not merely to scare them.
What is outrageous is that the Appellant was a
policeman. He could very well have just arrested the culprits as
they sauntered by and brought them to the police station for the
requisite investigation and the institution of criminal complaints, if
warranted. He could have dissuaded Jose and Jesus and assured
them that the culprits will be duly investigated and charged if
warranted. The Appellant did not. He armed himself with an M-16
armalite x x x. [T]he three (3) positioned themselves at the corner of
M.H. del Pilar and Sto. Domingo Streets for the culprits to
arrive. Hernani and his companions were doomed. It may be true that
the Appellant did not aim his gun at the deceased but the same is peu de
chose. By his overt acts, in unison with the other Accused and his
kinship with Jonathan and Edzel, We are convinced that he conspired
with Jose Talanquines, Jr. and the other Accused to achieve a common
purpose to kill Hernani and Eduardo.[46] (Emphasis and underscoring
supplied)
Petitioners failure to assist the victims after the shooting reinforces this Courts
appreciation of community of design between him and his co-accused to harm the victims. That
it was he who first officially reported the shooting to the police station[47] does not make him any
less a conspirator. Voluntary surrender and non-flight do not conclusively prove
innocence.[48] Besides, a conspirator who wants to extricate himself from criminal liability
usually performs an overt act to dissociate or detach himself from the unlawful plan to commit
the felony while the commission of the felony is in progress.[49] In petitioners case, he reported
the shooting incident after it had already taken place. In legal contemplation, there was no longer
a conspiracy to be repudiated since it had already materialized. [50]
Contrary to petitioners assertion,[51] the appellate court did not err in appreciating the
presence of conspiracy despite its finding that there was no evident premeditation. This Courts
pronouncement that conspiracy presupposes the existence of evident premeditation[52] does not
necessarily imply that the converse that evident premeditation presupposes the existence of a
conspiracy is true. In any event, a link between conspiracy and evident premeditation is
39
presumed only where the conspiracy is directly established and not where conspiracy is only
implied, as in the present case.[53]

Neither did the appellate court err in finding the presence of treachery. Treachery,
under Article 14, paragraph 16 of the Revised Penal Code, is present when the offender commits
any of the crimes against the person, employing means, methods, or forms in the execution
thereof which tend directly and specially to insure its execution, without risk to himself arising
from the defense which the offended party might make.

What is decisive in treachery is that the attack was executed in such a manner as to
make it impossible for the victim to retaliate.[54] In the case at bar, petitioner, a policeman, and
his co-accused were armed with two M-16 armalites and a revolver. The victim and his
companions were not armed.[55] The attack was sudden and unexpected,[56] and the victim was
already kneeling in surrender when he was shot the second time. Clearly, the victim and his
companion Eduardo had no chance to defend themselves or retaliate.
Petitioner nevertheless argues that he not being the trigger man, it is not logical nor
legal to hold him guilty of treachery.[57] This argument falls in the face of the settled doctrine
that once conspiracy is established, the act of one is the act of all even if not all actually hit and
killed the victim.[58]

As for petitioners invocation of the mitigating circumstance of immediate vindication

of a grave offense, it fails. For such mitigating circumstance to be credited, the act should be,
following Article 13, paragraph 5 of the Revised Penal Code, committed in the immediate
vindication of a grave offense to the one committing the felony (delito), his spouse,
ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by
affinity within the same degree.[59] The offense committed on Edzel was hitting his ear with
a stick[60] (according to Jesus), a bamboo pole (according to Edzel).[61]By Edzels own
clarification, [he] was hit at [his] ear, not on [his] head. [62] That act would certainly not be
classified as grave offense. And Edzel is petitioners nephew, hence, not a relative by affinity
within the same degree contemplated in Article 13, paragraph 5 of the Revised Penal Code.

WHEREFORE, the petition is DISMISSED and the appellate courts decision

is AFFIRMED.

Costs against petitioner.

SO ORDERED.

40

G.R. No. 4971 September 23, 1909
THE UNITED STATES, plaintiff,
vs.
AUGUSTUS HICKS, defendant.
Office of the Solicitor-General Harvey for plaintiff.
Jose Robles Lahesa for defendant.
TORRES, J.:
For about five years, from September, 1902, to November, 1907, Augustus Hicks, an Afro-
American, and Agustina Sola, a Christian Moro woman, illicitly lived together in the
municipality of Parang, Cotabato, Moro Province, until trouble arising between them in the
last-mentioned month of 1907, Agustina quitted Hick's house, and, separation from him, went
to live with her brother-in-law, Luis Corrales. A few days later she contracted new relations
with another negro named Wallace Current, a corporal in the Army who then went to live in
the said house.
On the 21st of December following, at about 7:30 p. m., Augustus Hicks together with a
soldier named Lloyd Nickens called at said house, and from the sala called out to his old
mistress who was in her room with Corporal Current, and after conversing with her in the
Moro dialect for a few minutes, asked the corporal to come out of said room; in response
thereto the corporal appeared at the door of the room, and after a short conversation, Current
approached Hicks and they shook hands, when Hicks asked him the following question: "Did I
not tell you to leave this woman alone?," to which Current replied: "That is all right, she told
me that she did not want to live with you any longer, but if she wishes, she may quit me, and
you can live with her." The accused then replied: "God damn, I have made up my mind;" and
as Corporal Current saw that Hicks, when, he said this, was drawing a revolver from his
trousers' pocket, he caught him by the hand, but the latter, snatching his hand roughly away,
said: "Don't do that," whereupon Current jumped into the room, hiding himself behind the
partition, just as Hicks drew his revolver and fired at Agustina Sola who was close by in
the sala of the house. The bullet struck her in the left side of the breast; she fell to the ground,
and died in a little more than an hour later.
Upon hearing the shot Edward Robinson, who was also in the house, went to render assistance
and wrested the weapon from the hand of the accused. The latter immediately fled from the
house and gave himself up to the chief of police of the town, H. L. Martin, asking him to lock
him up in jail; and, when a few minutes later a policeman came running in and reported that
Hicks had fired a shot at Agustina, the said chief of police caused Hicks to be arrested. The
latter, when once in jail, threw eight revolver cartridges out of the window; these were picked
up by a policeman who reported the occurrence and delivered the cartridges to his chief.
In view of the foregoing the provincial fiscal on the 8th of February, 1908, filed a complaint
with the Court of First Instance of said province charging Augustus Hicks with the crime of
murder. Proceedings were instituted, the trial court, after hearing the evidence adduced,
entered judgment on the 10th of September of the same year, sentencing the accused to the
penalty of death, to be executed according to the law, to indemnify the heirs of the deceased in
the sum of P1,000, and to pay the costs. The case has been submitted to this court for review.
The above-stated facts, which have been fully proven in the present case, constitute the crime
of murder, defined and punished by article 403 of the Penal Code, in that the woman Agustina
Sola met a violent death, with the qualifying circumstance of treachery (alevosia), she being
suddenly and roughly attacked and unexpectedly fired upon with a 45-caliber revolver, at
close, if not point blank range, while the injured woman was unarmed and unprepared, and at
a time when she was listening to a conversation, in which she was concerned, between her
aggressor and third person, and after usual and customary words had passed between her and
her aggressor. From all of the foregoing it is logically inferred that means, manners, and forms
were employed in attack that directly and specially insured the consummation of the crime
without such risk to the author thereof as might have been offered by the victim who, owing to
the suddenness of the attack, was doubtless unable to flee from the place where she was
standing, or even escape or divert the weapon.
The accused, Augustus Hicks, pleaded not guilty, but notwithstanding his exculpatory
allegations which were certainly not borne out at the trial, the evidence in the case is
absolutely at variance therewith and conclusively establishes, beyond peradventure of doubt,
his culpability as the sole fully convicted author of the violent and treacherous death of his
former mistress, Agustina Sola.
It is alleged by the accused that when he withdrew his hand from that of Current, who had
seized him, he fell backward but managed to support himself on his two hands, and when he
got up again the said corporal threatened him with a revolver thrust into his face; whereupon
he also drew his revolver, just as Edward Robinson caught him from behind, when his
revolver went off, the bullet striking the deceased.
This allegation appears to be at variance with the testimony of the witnesses Wallace Current,
Edward Robinson, Luis Corrales, and Lloyd Nickens in their respective declaration, especially
41
with that of the second and third, who witnessed the actual firing of the shot by the aggressor
at the deceased, as shown by the fact that Robinson immediately approached the accused in
order to take his weapon away from him which he succeeded in doing after a brief struggle,
whereupon the aggressor ran out of the house. Thus, the shot that struck the deceased in the
breast and caused her death was not due to an accident but to a willful and premeditated act on
the part of the aggressor with intent to deprive the victim of her life.
In addition to the qualifying circumstance of treachery, as above referred to, the presence of
other aggravating circumstances, such as premeditation, and the fact that the crime was
committed in the dwelling of the deceased should be taken into consideration. The last-
mentioned circumstances appears proven from the testimony of several witnesses who were
examined at the trial of the case.
Inasmuch as in the present case the crime has already been qualified as committed with
treachery, the circumstance of premeditation should only be considered as a merely generic
one. Premeditation is, however, manifest and evident by reason of the open acts executed by
the accused. According to the testimony of Charles Gatchery and Eugenio R. Whited, Hicks
asked leave from the former to be absent from the canteen where he was working on the
morning of the day when the affray occurred, alleging that his mind was unsettled and that he
feared getting into trouble. It is also shown by the fact that Whited, who was in Hicks' house
about noon upon the latter's invitation, and while both where drinking gin, and while the
revolver, the instrument of the crime, was lying on the table on which were also several loaded
cartridges, heard the accused repeatedly say, referring to the deceased, that her time had come,
adding that he would rather see her dead than in the arms of another man, and when the
accused went to bed apparently very much worried, and refusing to answer when called, the
witness left him. On the day after the crime the police found on a table in the cuprit's house
several loaded cartridges, a bottle of oil and a piece of cloth used undoubtedly for cleaning the
revolver.
All the foregoing circumstances conclusively prove that the accused, deliberately and after due
reflection had resolved to kill the woman who had left him for another man, and in order to
accomplish his perverse intention with safety, notwithstanding the fact that he was already
provided with a clean and well-prepared weapon and carried other loaded cartridges besides
those already in his revolver, he entered the house, greeting everyone courteously and
conversed with his victim, in what appeared to be a proper manner, disguising his intention
and claiming her by his apparent repose and tranquility, doubtless in order to successfully
accomplish his criminal design, behaving himself properly as he had planed to do beforehand.
As against the two foregoing aggravating circumstances no mitigating circumstances is
present, not even that mentioned in paragraph 7 of article 9 of the Penal Code, to wit loss of
reason and self-control produced by jealousy as alleged by the defense, inasmuch as the only
causes which mitigate the criminal responsibility for the loss of self-control are such as
originate from legitimate feelings, not those which arise from vicious, unworthy, and immoral
passions.
From the foregoing considerations, and as the judgment appealed from is in accordance with
the law, it is our opinion that the same should be affirmed, as we do hereby affirm it with
costs, provided, however, that the death penalty shall be executed according to the law in
force, and that in the event of a pardon being granted, the culprit shall suffer the accessory
penalties of article 53 of the Penal Code unless the same be expressly remitted in the pardon.
So ordered.

42

G.R. No. 95357 June 9, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EDUARDO GELAVER, accused-appellant.
The Solicitor General for plaintiff-appellee.
Joffrey L. Montefrio for accused-appellant.
QUIASON, J.:
This is an appeal from the decision of the Regional Trial Court, Branch 26, Surallah, South
Cotabato, finding Eduardo Gelaver, guilty beyond reasonable doubt of Parricide (Art. 246,
Revised Penal Code) and sentencing him to "suffer the penalty of reclusion perpetua and to
indemnify the heirs of his wife, Victoria Pacinabao, in the amount of P30,000.00." (Decision,
p. 7; Rollo, p. 28)
In the Information filed with the trial court and docketed as Criminal Case No. 643, Eduardo
Gelaver, was charged with Parricide committed as follows:
That on or about the 24th day of March, 1988 at 7:00 o'clock in the
morning, more or less, in Barangay Poblacion, Municipality of Sto. Nio,
Province of South Cotabato, Philippines, and within the jurisdiction of this
Honorable Court, said accused with intent to kill and being then armed
with a knife did then and there wilfully, unlawfully and feloniously attack,
assault and stab one VICTORIA GELAVER Y PACINABAO, his
lawfully wedded wife, with the use of the said knife hitting her and
wounding her on the different parts of her body and as a result thereof said
Victoria Gelaver y Pacinabao died instantly. (Rollo, p. 7)
At his arraignment, appellant entered a plea of "not guilty", and thereafter trial on the merits
ensued.
The prosecution presented Randy Mamon, who testified that at 7:00 a.m. of March 24, 1988,
he heard shouts coming from the house of Tessie Lampedario in Barangay Poblacion,
Municipality of Sto. Nio, South Cotabato. He saw the appellant and a woman having a heated
argument. Thereafter, appellant held the neck of the victim, dragged her and with a knife on
his right hand, stabbed the latter three times on the breast. Appellant then went out of the gate
and fled in the direction of the public market of Sto Nio. (TSN, June 27, 1988, pp. 7-10)
Eduardo Gelaver admitted killing his wife but claimed that he did so after catching her having
carnal act with her paramour.
Appellant testified that he was married to Victoria Pacinabao, with whom he begot four
children. (TSN, December 19, 1988, p. 9) They lived together at their conjugal home until July
3, l987 when she abandoned her family to live with her paramour. (TSN, December 19, 1988,
pp. 10-11) He did not know the name of his wife's paramour nor the name of the owner of the
house where his wife and her paramour had lived together.
Appellant further testified that on March 24, 1988, after he was informed by his daughter that
his wife and paramour were living at a house in front of the Sto. Nio Catholic Church,
appellant immediately repaired to that place. Upon entering the house, he saw his wife lying
on her back and her paramour on top of her, having sexual intercourse.
Appellants version of the killing was that when his wife saw him, she pushed her paramour
aside. Her paramour immediately stood up, took a knife placed on top of the bedside table and
attacked appellant. The latter was able to wrest possession of the knife and then used it against
the paramour, who evaded the thrusts of the appellant by hiding behind the victim. Thus, it
was the victim who received the stab intended for the paramour.
As to why he continued to stab his wife, appellant said that his mind had been "dimmed" or
overpowered by passion and obfuscation by the sight of his wife having carnal act with her
paramour.
Appellant faults the trial court in imposing the penalty of reclusion perpetua for the crime of
parricide, instead of the penalty of destierro for killing under exceptional circumstances
pursuant to Article 247 of the Revised Penal Code. (Appellant's Brief, p. 1)
Appellant's contention is bereft of merit.
Before Article 247 of the Revised Penal Code can be operative, the following requisites must
be compresent:
43
 1. That a legally married person or a parent surprises his spouse or his However, the trial court erred in finding the presence of the mitigating circumstance of
daughter, the latter under 18 years of age and living with him, in the act of passion or obfuscation "as a result of his (appellant's) wife leaving their home and their
committing sexual intercourse with another person. children." (Rollo, p. 28) Before this circumstance may be taken into consideration, it is
2. That he or she kills any or both of them or inflicts upon any or both of necessary to establish the existence of an unlawful act sufficient to produce such a condition
them any serious physical injury in the act or immediately thereafter. of mind. The act producing the obfuscation must not be far removed from the commission of
3. That he has not promoted or facilitated the prostitution of his wife or the crime by a considerable length of time, during which the accused might have recovered his
daughter, or that he or she has not consented to the infidelity of the other equanimity. (I Revised Penal Code, Aquino, 1987 ed., p. 267) The crime was committed
spouse. (II Reyes, The Revised Penal Code, 12th Ed., pp. 452-53; almost a year after the victim had abandoned the conjugal dwelling.
Emphasis supplied) WHEREFORE, the Judgment appealed from is AFFIRMED except with the
These requisites must be established by the defense. MODIFICATION that the indemnity, be increased to P50,000.00 (People v. Sison, 189 700
Implicit in this exceptional circumstance is that the death caused must be the proximate result [1990]).
of the outrage overwhelming the accused after chancing upon his spouse in the act of infidelity SO ORDERED.
(People v. Abarca, 153 SCRA 735 [1987]). In this case, appellant wants this Court to believe
that he caught his wife and her paramour in sexual intercourse. However, his testimony is
tainted with inconsistencies which leads Us to believe otherwise.
Appellant's failure to inform the police that he killed his wife when he saw her having sexual
intercourse with her paramour, devastated in one fell swoop whatever credibility could
possibly be accorded to his version of the incident. As noted by the Solicitor General, the
natural thing for a person to do under the circumstances was to report to the police the reason
for killing his wife. (Appellee's Brief, p. 8; Rollo, p. 76) Appellant's contention that he thought
that only the killing itself should be blottered, reserving the details to the defense lawyer,
sounded like a spoonfed afterthought.
If there was a naked man with the victim, he would have had no time to get dressed because he
was then under attack by appellant. There would then have been the spectacle of a man in the
nude running in the streets.
The trial court noted several contradictions in appellant's testimony. Appellant claimed that he
chased the paramour but was unable to overtake him and at the same time, he testified that the
paramour stayed in the room and used the victim as a shield against appellant's attack with the
knife. Appellant also claimed that upon entering the gate of the fence, he saw his wife and her
paramour having carnal act and at the same breath, he testified that he saw his wife and her
paramour only when he opened the main door of the house.
The trial court found as contrary to human nature appellant's claims that he went to confront
the paramour of his wife unarmed and that he never learned the name of the paramour inspite
of the fact that his wife, allegedly, had been living with the paramour in the same town for
almost a year before the incident.
Absent any substantial proof that the trial court's decision was based on speculation, the same
must be accorded full consideration (People v. Martinada, 194 SCRA 36 [1991) and should
not be disturbed on appeal (Mercury Drug v. CIR, 56 SCRA 694 [1974]).
Appellant's claim that on the day prior to his killing of the victim, his daughter Sheryl had
confided to him that her mother was living with a paramour at the house in front of the Sto.
Nio Catholic Church was belied by Sheryl herself. In her testimony, she stated that she did
not know the house where the crime was committed and she had not gone to that place. She
further testified that she had not seen her mother in any other house except that of her
grandfather's. (TSN, January 17, 1989, p. 5)
The trial court was correct in finding the presence of the mitigating circumstance of voluntary
surrender to the authorities. Appellant, immediately after committing the offense, voluntarily
placed himself at the disposal of the police authorities as evidenced by the entry in the official
police blotter.
(Exh. "1")

44
 G.R. No. L-18792 February 28, 1964
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GUILLERMO BELLO, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Ferdinand E. Marcos for defendant-appellant.
REYES, J.B.L., J.:
Appeal from a judgment of the Court of First Instance of Quezon in its Criminal Case No.
592-G, for murder.
The information filed against the accused alleged four (4) aggravating circumstances, namely:
treachery, evident premeditation, nighttime, and superior strength. The trial court made a
finding of "treachery, evident premeditation and in cold blood and without any provocation";
however, the dispositive portion of the appealed decision states as follows:
... the Court finds the accused Guillermo Bello guilty beyond reasonable doubt of
the crime of murder defined an punished by Article 248 of the Revised Penal Code
with the aggravating circumstances of (1) nighttime, (2) abuse of confidence and
obvious ungratefulness, (3) superior strength offset only by his surrender to the
authorities and hereby sentence him to DIE by electrocution in the manner provided
by law ordering his heirs, after his death, to indemnify the heirs o the deceased
Alicia Cervantes in the sum of P3,000.00, wit costs.
The record bears out, the Office of the Solicitor General does not challenge, and the
counsel de oficio agree with, and adopts, the following findings of fact of the trial court:
From the evidence adduced at the hearing of the case, it has been established to the
satisfaction of the Court (1) that on September 17, 1954, the accused Guillermo
Bello, a widower who at that time was about 54 years of age, took a young peasant
lady named Alicia Cervantes, about 24 years old his common-law wife; (2) that
from that day they lived together apparently in blissful harmony as man and wife
without the benefit of marriage bearing, however, no child, ...; (3) that on May 15,
1958, the accused who had no means of substantial livelihood except that of making
"kaingin" and who apparently was then in financial straits induced Alicia Cervantes
to accept an employment as entertainer in a bar and restaurant establishment known
as Maring's Place situated the corner of Aguinaldo and Bonifacio Streets, Gumaca,
Quezon (4) that Alicia Cervantes entered the service of Maring's Place on that day
as a public hostess; (5) that the accused being infatuated with his young bride used
to watch her movements in Maring's Place everyday; (6) that on May 16 he saw
Alicia enter the Gumaca theater in Gumaca with a man whom the accused found
later was caressing his common-law wife inside the movie house; (7) that being in
love with her he took her out from the movie and warned her to be more discreet in
her personal conduct in Gumaca; (8) that Alicia Cervantes continued to serve at
Maring's Place as a public hostess; (9) that on May 20, 1958, at 3:00 p.m. the
accused went to Maring's Place to ask for some money from Alicia; (10) that
Maring, the owner of the place, and Alicia refused to give money, Maring telling
him to forget Alicia completely because he was already an old man, an invalid
besides and should stop bothering Alicia; (11) that having failed to obtain financial
assistance from his paramour, accused left the place somewhat despondent and went
home passing Bonifacio Street; (12) that on his way home he met the brothers Justo
Marasigan and Luis Marasigan who greeted the accused, Luis saying to his brother
Justo the following: "So this is the man whose wife is being used by Maring for
EN BANC white slave trade"; (13) that these remarks of Luis Marasigan naturally brought grief

45
 to the accused, to drown which he sought Paty's place in Gumaca where he drank 5
glasses of tuba; (14) that from Paty's place he went to Realistic Studio which is in
front of Maring's Place and from there watched the movements of Alicia; (15) that at
about 9:00 o'clock that night he entered Maring's Place and without much ado held
Alicia from behind with his left hand in the manner of a boa strangulating its prey
and with his right hand stabbed Alicia several times with a balisong; (16) that seeing
Alicia fallen on the ground and believing her to be mortally wounded, he fled and
went to the municipal building and there surrendered himself to the police of
Gumaca.
Both the prosecution and the defense also agree that the crime committed is not murder but
only homicide, but they disagree in the qualifying or aggravating and mitigating
circumstances. The prosecution holds that the crime is homicide, aggravated by abuse of
superior strength, but offset by voluntary surrender. On the other hand, the defense maintains
that the accused is entitled to the additional mitigating circumstance of passion and
obfuscation. The trial court held a different conclusion, as earlier stated.
While it cannot be denied that Alicia was stabbed at the back, the wound was but a part and
continuation of the aggression. The four (4) stab wounds (the 3 others were in the breast,
hypogastric region, and in the left wrist as shown in the certificate of the Municipal Health
Officer) were inflicted indiscriminately, without regard as to which portion of her body was
the subject of attack. The trial court itself found that the stab in the back was inflicted as Alicia
was running away. For this reason, treachery cannot be imputed (People v. Caete, 44 Phil.
478).
Evident premeditation was, likewise, not established. The accused had been carrying
a balisong with him for a long time as a precaution against drunkards, and without any present
plan or intent to use it against his common-law wife. That he watched her movements daily
manifest his jealous character, but there is no evidence that from this jealousy sprouted a plan
to snuff out her life.1wph1.t
The evidence does not show, either, any superior strength on the part of the accused, and, not
possessing it, he could not take advantage of it. True that he was armed with a balisong, but he
was old and baldado (invalid), while Alicia was in the prime of her youth, and not infirm. The
facts are not sufficient to draw a comparison of their relative strength. Possession of
a balisong gives an aggressor a formidable advantage over the unarmed victim, but the
physique of the aggressor ought also to be considered. At any rate, taking into account the
emotional excitement of the accused, it is not clearly shown that there was "intencion
deliberada de prevalerse de la superioridad o aprovecharse intencionadamente de la misma"
(Sent. TS. 5 Oct. 1906), i.e., deliberate intent to take advantage of superior strength.
The crime was committed at nighttime, but the accused did not seek or take advantage of it the
better to accomplish his purpose. In fact, Maring's Place was bright and well-lighted; hence,
the circumstance did not aggravate the crime. (U.S. vs. Ramos, et al., 2 Phil. 434; U.S. vs.
Bonete, 40 Phil. 958.)
We can not understand how the trial court came to couple the crime with the aggravating
circumstance of abuse of confidence and obvious ungratefulness. There is nothing to show that
the assailant and his common-law wife reposed in one another any special confidence that
could be abused, or any gratitude owed by one to the other that ought to be respected, and
which would bear any relation, or connection, with the crime committed. None is inferable
from the fact that the accused was much older than his victim, or that he was penniless while
she was able to earn a living and occasionally gave him money, since both lived together as
husband and wife. Neither is it shown that the accused took advantage of any such special
confidence in order to carry out the crime.
Since the aggravating circumstances of treachery, evident premeditation, and abuse of superior
strength, which could have qualified the crime as murder, were not present, and since the
generic aggravating circumstances of nighttime and abuse of confidence and obvious
ungratefulness have not been established, the accused can only be liable for homicide.
Both defense and prosecution agree that the accused-appellant is entitled to the benefit of the
mitigating circumstances of voluntary surrender to the authorities. The remaining area of
conflict is reduced to whether the accused may lay claim to a second mitigating circumstance,
that of having acted on a provocation sufficiently strong to cause passion and obfuscation. The
defense submits that accused is so entitled, because the deceased's flat rejection of petitioner's
entreaties for her to quit her calling as a hostess and return to their former relation, aggravated
by her sneering statement that the accused was penniless and invalid (baldado), provoked the
appellant, as he testified, into losing his head and stabbing the deceased. The state disputes the
claim primarily on the strength of the rule that passion and obfuscation can not be considered
when "arising from vicious, unworthy, and immoral passions" (U.S. vs. Hicks, 14 Phil. 217).
We are inclined to agree with the defense, having due regard to the circumstances disclosed by
the record. It will be recalled that the lower court found that the accused had previously
reproved the deceased for allowing herself to be caressed by a stranger. Her loose conduct was
forcibly driven home to the accused by Marasigan's remark on the very day of the crime that
the accused was the husband "whose wife was being used by Maring for purposes of
prostitution," a remark that so deeply wounded the appellant's feelings that he was driven to
consume a large amount of wine (tuba) before visiting Alicia (the deceased) to plead with her
to leave her work. Alicia's insulting refusal to renew her liaison with the accused, therefore,
was not motivated by any desire to lead a chaste life henceforth, but showed her determination
to pursue a lucrative profession that permitted her to distribute her favors indiscriminately. We
can not see how the accused's insistence that she live with him again, and his rage at her
rejection of the proposal, can be properly qualified as arising from immoral and unworthy
passions. Even without benefit of wedlock, a monogamous liaison appears morally of a higher
level than gainful promiscuity.
WHEREFORE, the appealed decision should be, and hereby is, modified. This Court finds the
accused-appellant, Guillermo Bello, guilty beyond reasonable doubt of the crime of homicide,
attended by two (2) mitigating circumstances: (a) passion and obfuscation, and (b) voluntary
surrender, and, therefore, imposes upon him an indeterminate sentence ranging from a
minimum of six (6) years and one (1) day of prision mayor to a maximum of ten (10) years
of prision mayor; orders him also to personally indemnify the heirs of Alicia Cervantes in the
amount of P6,000.00, and to pay the costs. So ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, Paredes, Dizon,
Regala and Makalintal, JJ., concur.
46
G.R. No. L-45284 December 29, 1936
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
FRANCISCO DE LA CRUZ, ET AL., defendants.
FRANCISCO DE LA CRUZ, appellant.
Marciano Sayoc for appellant.
Undersecretary of Justice Melencio for appellee.

AVANCEA, C.J.:
This case was prosecuted upon the following information:
That on or about the 30th day of May, 1936, in the City of Manila, Philippine Islands, the said
accused Francisco de la Cruz, Fernando Legaspi and three other persons whose identities are
still unknown, confederating together and helping one another, did then and there willfully,
unlawfully and feloniously, and with intent of gain, attack, assault and use personal violence
upon one Yu Wan, by then and there giving him blows with his fist on the face and other parts
of the body, thereby inflicting upon him physical injuries which have required and will require
medical attendance for a period of more than one but less than nine days and have prevented
and will prevent the said Yu Wan from engaging in his customary labor for the same period of
time; and afterwards took, stole and carried away with him without the consent of the owner
thereof the following personal property, to wit:
Twenty-six (P26) pesos in cash, consisting of different denominations ................
P26.00
belonging to said Yu Wan, to the damage and prejudice of the said owner in the said sum of
P26, Philippine currency.
That the said accused Francisco de la Cruz is a habitual delinquent under the
provisions of the Revised Penal Code, he having been previously convicted once of
the crime of theft and twice of the crime of estafa, by virtue of final judgments
rendered by competent courts, having been last convicted on July 24, 1933.
Upon arraignment, the accused pleaded not guilty.
During the trial and after two witnesses for the prosecution had testified, the accused withdrew
their plea of not guilty, substituting it by that of guilty. The court sentenced Francisco de la
Cruz to six months and one day of prision correccional and, considering him a habitual
delinquent, sentenced him furthermore to the additional penalty of six years and one day
of prision mayor. The other accused Fernando Legaspi was sentenced to ten months of prision
correccional. Francisco de la Cruz appealed for this sentence.

47
The facts charged constitute the crime of robbery defined in article 294 of the Revised Penal
Code and punished by the penalty of prision correccional to prision mayor in its medium
period.
The allegations of the information with respect to the appellant Francisco de la Cruz are not
sufficient to consider him a habitual delinquent (People vs. Venus, p. 435, ante). However, the
facts alleged in this respect constitute the aggravating circumstance of recidivism.lawphi1.net
On the other hand, the appellant's plea of guilty does not constitute a mitigating circumstance
under article 13, subsection 7, of the Revised Penal Code, which requires that this plea be
spontaneous and that it be made prior to the presentation of evidence by the prosecution. The
confession of guilt, although subsequent to the consummation of the crime and entirely alien
to its development, constitutes a cause for the mitigation of the penalty, not because it is a
circumstance modifying criminal responsibility already incurred and in the evolution of which
it has not intervened absolutely, but because, as an act of repentance and respect for the law, it
indicates a moral disposition in the accused favorable to his reform. It is clear that these
benefits are not deserved by the accused who submits to the law only after the presentation of
some evidence for the prosecution, believing that in the end the trial will result in his
conviction by virtue thereof.
Wherefore, eliminating the additional penalty by reason of habitual delinquency, considering G.R. Nos. 54344-45 January 10, 1994
the presence of an aggravating circumstance in the commission of the crime without any PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
mitigating circumstance, and applying the Indeterminate Sentence Law, the appellant is vs.
sentenced to the penalty of from six months of arresto mayor, as minimum, to six years, ten WILLIE AMAGUIN, GILDO AMAGUIN AND CELSO AMAGUIN, accused.
months and one day of prision mayor, as maximum, affirming the appealed sentence in all WILLIE AMAGUIN AND GILDO AMAGUIN, accused-appellants.
other respects, with the costs. So ordered. The Solicitor General for plaintiff-appellee.
Sixto P. Demaisip for accused-appellants.

BELLOSILLO, J.:
The coup de main on the Oro brood sent two brothers to the mortuary and a third to medical
care. The bloodbath resulted in the brothers Willie, Gildo and Celso, all surnamed Amaguin,
being charged with the murder of the Oro brothers Pacifico and Diosdado. Willie and Gildo
went through trial while Celso to this date remains a fugitive.
The culpability of the Amaguin brothers was recounted by Hernando Oro, a younger brother
of Pacifico and Diosdado. Hernando narrated that in the afternoon of 24 May 1977, he and his
brothers Diosdado and Danilo, brother-in-law Rafael Candelaria, an first cousin Sergio
Argonzola were invited by their eldest brother Pacifico to the latter's house in the interior of
Divinagracia Street, La Paz, Iloilo City, for a small gathering to celebrate the town fiesta. 1 At
about five o'clock in the afternoon, after partaking of the meager preparations put together by
Pacifico, he (Hernando) and his companions decided to leave. They were accompanied by
their host to the plaza where they could get a ride.
On their way, while traversing Divinagracia Street, Pacifico was called by accused Celso
Amaguin : "Pare, come here." But Pacifico answered : "Pare, not yet because I have to
conduct my guests first." Immediately, Celso, with a butcher's knife in hand, rushed towards
Pacifico. Gildo, Celso's younger brother, with a knife tucked to his waist, followed with a
slingshot known as "Indian pana" or "Indian target". While Gildo aimed the dart from his
slingshot at Danilo, which hit the latter on the chest, Celso hacked Pacifico. Gildo then
stabbed Diosdado with a knife. Thereafter, Willie, the eldest of the Amaguin brothers,
appeared with a handgun and successively shot the brothers Pacifico, Diosdado and the fleeing
Danilo. Diosdado, own kneeling, gasping for breath and pleading for his life, was again shot
by Willie who next fired anew at Pacifico. Meanwhile, Gildo and Celso repeatedly stabbed
Pacifico who already lying prostrate and defenseless.2

48
Danilo Oro, the youngest of the Oros, likewise testified. He said that at around five o'clock in
the afternoon of 24 May 1977, while walking along Divinagracia Street on their way to the
plaza for ride home with his three brothers and two others, they were waylaid by Celso, Willie
and Gildo, their cousin Danny, all surnamed Amaguin, and several others. Celso placed an
arm on the shoulder of Pacifico and stabbed him with a knife.3 Then there was a clash between
the two groups. In a split second, he (Danilo) was hit on the left chest by a dart from the
slingshot of Gildo whom he saw aiming at him. He (Danilo) pulled the dart from his chest and
ran away but was hit on the lips by a bullet. Then he was pushed by Hernando to seek cover. 4
Rafael Candelaria, a brother-in-law of the Oros, also took the witness stand. His version was
that while he, his brothers-in-law and one Sergio Argonzola were walking along Divinagracia
Street that afternoon, two men approached them. Without any provocation, one suddenly
stabbed him. After being hit on the left arm, he immediately fled to the plaza where he flagged
down a passing cab to take him to the hospital. He did not see what happened next to his
companions.5
The defense however maintains that it was the Oro brothers who started the fight. Accused
Gildo Amaguin recounted that on 24 May 1977, at about five o'clock in the afternoon, Pacifico
with five others went to their house in Divinagracia Street, La Paz, Iloilo City, and approached
his brother Celso, who was waiting for his wife at the foot of the stairs. While Pacifico was
talking to Celso, a companion of Pacifico came forward, held Celso by the shoulder and said :
"This is the bravest man in Divinagracia Street, the Amaguin." Meanwhile, another
companion of Pacifico gave Celso a flying kick that sent him reeling. Gildo then went down
the house shouting : "Don't fight." However, the attackers drew their knives and slingshots. In
return, Celso pulled out his knife. Since one of the companions of Pacifico lunged at him,
Gildo retreated to the other side of the road and threw stones at his attackers.
Meanwhile, he saw his cousin Danny hit Danilo Oro with a dart from a slingshot. But later
Danny himself was stabbed from behind by one of Pacifico's companions. Then Ernie Ortigas,
a guest of Celso, emerged from the Amaguin residence holding a revolver. Ernie initially fired
three warning shots, after which he successively shot Pacifico and a person who tried to stab
the former as well as an identified companion of Pacifico. Later, both Ernie Ortigas and Celso
Amaguin escaped towards the railway tracks.6 The following day, he was brought by his uncle
to the PC authorities in Fort San Pedro for "safe-keeping" and turned over to the local police
after a week.
The story of Gildo was confirmed by Vicente Belicano7 and Nilda Tagnong,8 long-time
residents of Divinagracia Street, and Nenita Amaguin, mother of the accused brothers, who
even affirmed that her son Celso was indeed troublesome,9 but added that Willie "never had
any brush with the
law." 10
On his part, Willie related that he was in the house of his uncle along Divinagracia Street that
afternoon drinking with some friends. He left the group after hearing some explosions coming
from the direction of his mother's house and then seeing his cousin Danny, with a stab wound
at the back, being taken by two policemen, and his wounded brother Gildo running towards
the plaza. Thus, he went to his mother's residence to find out what happened. But when he got
there, the incident had already ended. As a consequence, he was told by his mother to look for
his two brothers who were wounded in the fight and to take them to the hospital. 11 He turned
himself in after five days, upon learning that law enforcers were looking for him.
Ulpiano Vencer, Rogelio de la Paz and Pat Jereos all confirmed that accused Willie only left
their gathering after the explosions were heard, and only after seeing his wounded brother
Gildo and his cousin Danny, who was in the company of two policemen, pass by.
Perla Belleza, a vegetable vendor in the La Paz Public Market, also testified that after hearing
six explosions, she saw an unidentified man with a revolver running away from the scene of
the crime, followed by accused Celso who was holding a knife. She was certain that the
unidentified man was not accused Willie as the latter was very well known to her, she being a
former neighbor of the Amaguins. 12
Dr. Tito Doromal, Asst. Medico-Legal Officer, Iloilo Metropolitan District Command, INP,
conducted an autopsy on Pacifico and Diosdado. He declared that out of the 15 stab wounds
and one gunshot wound Pacifico sustained, five of the stab wounds were fatal. With regard to
Diosdado, four (4) stab wounds, out of the ten (10), and the lone bullet he had sustained were
considered fatal. 13
After a joint trial, and finding the version of the prosecution to be more credible, the then
Court of First Instance of Iloilo, Br. II, 14 found the accused Gildo Amaguin, also known as
"Tigib," guilty beyond reasonable doubt of the crime of Murder, and . . . sentenced (him)
to Reclusion Perpetua, both in Criminal Cases Nos. 8041 and 8042, together with all the
accessory penalties, and to pay the costs."
As regards Willie Amaguin alias "Tikboy," the trial court found him guilty "as accomplice in
both Criminal Cases 8041 and 8042, and . . . sentenced (him) to an indeterminate penalty of
Seventeen (17) Years, Four (4) Months, and One (1) Day to Twenty (20) Years each in said
cases together with all the accessory penalties, and to pay the costs."
Both accused were "further sentenced to indemnify the heirs of the late Pacifico Oro and
Diosdado Oro, jointly and severally in the total sum of P24,000.00 as death compensation;
P20,000.00 (as) moral damages; P10,000.00 (as) exemplary damages; and P5,000.00 for burial
expenses, in both Criminal cases nos. 8041 and 8042."
In this appeal, accused Willie Amaguin and Gildo Amaguin claim that the court a quo erred:
(a) in categorizing the offense/s as murder; (b) in finding Willie Amaguin to be the person
involved in the incident; (c) in holding that there was conspiracy between the brothers Gildo
and Celso Amaguin (the latter is at large); (d) in finding Gildo Amaguin to be armed with a
knife and an Indian target when he was only armed with stones; and, (e) even assuming the
accused to be guilty, in not holding them responsible for their individual acts, and in not
appreciating the mitigating circumstance of voluntary surrender. 15
Before disposing of the other issues raised by appellants, we resolve the second and fourth
assigned errors first to determine which of the two conflicting versions of the incident
deserves credence. Their resolution rests upon the credibility of the witnesses who have come
forward, a matter addressed to the sound judgment of the trial court which is in a better
position to decide them, it having heard the witnesses and observed their deportment and
manner of testifying during the trial. Consequently, the assessment of the trial judge is usually
received with respect, if not conclusiveness, on appeal unless there is a showing of
arbitrariness. Always, this has been the familiar rule. 16
In the instant case, the trial court has accepted as credible the testimonies of Hernando and
Danilo Oro who positively identified accused Celso and Gildo Amaguin as having started the
assault on the Oro brothers with the use of a knife and an "Indian pana," and accused Willie
Amaguin as the gunwielder who shot the brothers Pacifico, Diosdado and Danilo during the
fray. We see no reason to disregard the assessment. We simply cannot set aside the factual
findings of the trial court absent any showing of capriciousness on its part.
The defense belittles the testimony of Hernando Oro pointing to accused Willie Amaguin as
the gunman as it stands "singly and alone," in contrast to the declaration of the defense
witnesses exonerating Willie and Gildo. While the defense may have presented a number of
witnesses who, as the trial court puts it, "virtually 'sang' in a chorus that the killers (Celso and
Danny Amaguin and a certain Ernie Ortigas) not the two accused herein (Willie and Gildo
49
Amaguin)," 17 still the trial judge had the opportunity, as well as the right and responsibility, to
assess their credibility just like all other witnesses. After all, there is no law which requires
that the testimony of a single witness needs corroboration except when the law so expressly
requires. As it is often said, witnesses are to be weighed, not numbered. If credible and
positive, the testimony of a single witness is sufficient to convict. 18 Indeed the determination
of the credibility of witnesses is the trial court's domain, hence, we respect its factual findings.
For, even the respective defenses of the accused, i.e., accused Willie Amaguin's alibi that he
did not participate in the fray and that he was in the nearby house of his uncle drinking with
his friends, and accused Gildo Amaguin's denial that he was unarmed but later forced to hurl
stones to defend himself, are without sound basis. Alibi is one of the weakest defenses that can
be resorted to especially where there is direct testimony of an eyewitness, not only because it
is inherently weak and unreliable but also because of the ease of its fabrication and the
difficulty of checking and rebutting it.19 Besides, alibi to be believed must be supported by the
physical impossibility of the accused to have been at the scene of the crime. 20 And as in an
alibi, a denial, if unsubstantiated by clear and convincing evidence, is a negative and self-
serving evidence which deserves no weight in law and cannot be given greater evidentiary
value over the testimony of credible witnesses who testify on affirmative matters. 21 Thus, as
between a mere denial of the accused and the positive identification and detailed declarations
of the prosecution witnesses, the trial court committed no error in according heavier weight to
the latter. 22
Hence, this version of the prosecution prevails: Celso and Gildo, together with others, attacked
the Oros. During the fray, Gildo was armed with a knife and an "Indian target." And just as
they were about to finish off the Oro brothers, Willie, the eldest of the Amaguins, appeared
with a revolver and delivered the coup de grace.
The factual setting having been settled, we now go to the first assigned error , i.e., thwt the
lower court erred in categorizing the offense as murder there being no treachery since "the
combatants were face to face" and "[c]onfronting each other frontally . . . that each will know
each other's next move." 23 Except for appellants' premise, the argument has merit. The killing
of Pacifico and Diosdado cannot be qualified by treachery.
While we have already ruled that even a frontal attack can be treacherous, as when it is sudden
and unexpected and the victim is unarmed, 24 here, it appears that the aggressors did not
employ means tending directly and specially to ensure the execution of the crime without risk
to themselves arising from the defense which the offended parties might take.
It must be noted that the assailants attacked a group of six (6) individuals who could have been
armed.
It is highly probable that at least one of those attacked could offer resistance and could put the
lives of the aggressors in danger, as what indeed happened when accused-appellant Gildo
Amaguin and his cousin Danny suffered injuries as a result of the fight which, from all
indications, ended in a free-for-all. That Pacifico sustained 15 stab wounds and a gunshot
wound, and Diosdado, ten stab wounds and a bullet wound, does not necessarily mean that
treachery attended the killings. As already adverted to, for treachery to be appreciated, the
offender must employ means, methods, or forms in the commission of the crime which tend
directly and specially to insure its execution without risk to himself arising from the defense
which the offended party might take.25 Here, there is serious doubt.
On the third assigned error, i.e., that there was conspiracy between Gildo and Celso, who
remains at large, the evidence shows how Celso and Gildo simultanously assaulted the Oro
brothers. While Celso lunged at Pacifico, Gildo aimed his slingshot at Danilo who was hit by
its dart, and immediately
attacked Pacifico with a knife. Under the circumstances, it is evident that Gildo and Celso
acted in unison and cooperated with each other toward the accomplishment of a common
felonious objective. Certainly, there was conspiracy between the brothers Gildo and Celso,
and it was not necessary to prove a previous agreement to commit the crime since from their
overt acts, it was clear that they acted in concert in the pursuit of their unlawful design.
However, it was error to rule that accused Willie was an accomplice to his brothers. There
being no sufficient evidence to link him to the conspiracy, he should be liable for the natural
and logical consequence of his own felonious acts. Hence, we take exception to the conclusion
of the trial court that Pacifico and Diosdado did not die due to the gunshot wounds inflicted by
Willie.
Dr. Tito Doromal, the medico-legal officer who autopsied the bodies of Pacifico and
Diosdado, testified that while the gunshot wound sustained by Pacifico was not fatal, that
suffered by Diosdado was fatal.26
Consequently, in Crim. Case No. 8041, where Willie mortally shot Diosdado, he should be
liable for homicide. And, since Diosdado was already on bended knees and pleading for his
life when fatally shot, the aggravating circumstance of the abuse of superior strength, although
not alleged in the information but proven during the trial, may be considered as a generic
aggravating circumstance. 27
In Crim. Case No. 8042, where Willie shot Pacifico while lying prostrate already with
numerous fatal stab wounds, Willie should be liable for frustrated homicide it appearing that
the gunshot wound was not fatal although his intent to kill was evident. Likewise, the
aggravating circumstance of abuse of superior strength may be appreciated as a generic
aggravating circumstance.
Finally, we agree with accused-appellants' view that voluntary surrender should be appreciated
in their favor. While it may have taken both Willie and Gildo a week before turning
themselves in, the fact is, they voluntarily surrendered to the police authorities before arrest
could be effected. For voluntary surrender to be appreciated as a mitigating circumstance, the
following elements must be present: (a) the offender has not been actually arrested; (b) the
offender surrendered himself to a person in authority; and (c) the surrender must be
voluntary. 28 All these requisites appear to have attended their surrender.
Now, we turn to the penalties.
In Crim. Cases Nos. 8041 and 8042, Gildo Amaguin is guilty of two (2) separate crimes of
homicide for the death of Diosdado and Pacifico, respectively. The penalty prescribed by law
for homicide is reclusion
temporal. 29 Applying the Indeterminate Sentence Law, and appreciating the mitigating
circumstance of voluntary surrender with no aggravating circumstance, the maximum penalty
to be imposed on accused Gildo Amaguin for each of the homicide he has committed, which
he must serve successively, should be taken from the minimum of the imposable penalty,
which is reclusion temporal the range of the minimum period of which is twelve (12) years
and one (1) day to fourteen (14) years and eight (8) months, while the minimum should be
taken from the penalty next lower in degree, which is prision mayor the full range of which is
six (6) years and one (1) day to twelve (12) years, in any of its periods.
In Crim. case No. 8041, Willie Amaguin is guilty of homicide aggravated by abuse of superior
strength but offset by the mitigating circumstance of voluntary surrender, and in Crim. Case
No. 8042, he is guilty of frustrated homicide likewise aggravated by abuse of superior strength
but offset by voluntary surrender. For the homicide, applying the Indeterminate Sentence Law
and taking into account the mitigating circumstance of voluntary surrender which, as earlier
mentioned, offsets the aggravating circumstance of abuse of superior strength, the maximum
penalty should be taken from the medium of the imposable penalty, which is reclusion
temporal the range of the medium period of which is fourteen (14) years eight (8) months and
50
one (1) day to seventeen (17) years and four (4) months, while the minimum should be taken
from the penalty next lower in degree which is prision mayor in any of its periods.
For the frustrated homicide, the imposable penalty is one degree lower than the penalty
prescribed by law for the consummated offense, and one degree lower than reclusion
temporal is prision mayor. Applying the Indeterminate Sentence Law and the attending
circumstances which offset each other, the maximum penalty to be imposed should be taken
from the medium of the imposable penalty, which is prision mayor the range of the medium
period of which is eight (8) years and one (1) day to ten (10) years, while the minimum should
be taken from the penalty next lower in degree, which is prision correccional the full range of
which is six (6) months and one (1) day to six (6) years, in any of its periods.
WHEREFORE, the decision of the court a quo finding the accused-appellants WILLIE
AMAGUIN and GILDO AMAGUIN guilty in Crim. Cases Nos. 8041 and 8042 is
MODIFIED as follows:
(a) accused-appellant WILLIE AMAGUIN is found guilty of HOMICIDE in Crim. Case No.
8041 and is sentenced to six (6) years, two (2) months and one (1) day of prision
mayor minimum as minimum, to fourteen (14) years, eight (8) months and twenty (20) days
of reclusion temporal medium as maximum, and of FRUSTRATED HOMICIDE in Crim.
Case No. 8042 and is sentenced to six (6) months and twenty (20) days of prision
correccional minimum as minimum, to eight (8) years, four (4) months and ten (10) days
of prision mayor as maximum, to be served successively;.
(b) accused-appellant GILDO AMAGUIN is found guilty of two (2) separate crimes of
HOMICIDE in Crim. Cases Nos. 8041 and 8042 and is sentenced to six (6) years two (2)
months and one (1) day of prision mayor minimum as minimum, to twelve (12) years, six (6)
months and ten (10) days of reclusion temporal minimum as maximum, for each homicide, to
be served successively;
(c) in Crim. Case No. 8041, accused-appellants WILLIE AMAGUIN and GILDO AMAGUIN
are declared jointly and severally liable to the heirs of Diosdado Oro for P50,000.00 as civil
indemnity consistent with prevailing jurisprudence; and,
(d) in Crim. case No. 8042, accused-appellant GILDO AMAGUIN is liable to the heirs of
Pacifico Oro for P50,000.00 as civil indemnity.
Costs against accused-appellants WILLIE AMAGUIN and GILDO AMAGUIN in both cases.
SO ORDERED.
Cruz, Davide, Jr. and Quiason, JJ., concur.

EXUPERANCIO CANTA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION
MENDOZA, J.:

This is a petition for review on certiorari of the decision, dated August 31, 1999, and
resolution, dated November 22, 1999, of the Court of Appeals,[1] which affirmed the decision of
the Regional Trial Court, Branch 25, Maasin, Southern Leyte,[2] finding petitioner Exuperancio
Canta guilty of violation of P.D. No. 533, otherwise known as the Anti-Cattle Rustling Law of

51
1974, and sentencing him to ten (10) years and one (1) day of prision mayor, as minimum, to
twelve (12) years, five (5) months, and eleven (11) days of reclusion temporal medium, as
maximum, and to pay the costs.
The information against petitioner alleged:
That on or about March 14, 1986, in the municipality of Malitbog, province of Southern
Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused with intent to gain, did then and there, willfully, unlawfully and feloniously, take,
steal and carry away one (1) black female cow belonging to Narciso Gabriel valued at Three
Thousand Pesos (P3,000.00) without the knowledge and consent of the aforesaid owner, to his
damage and prejudice in the amount aforestated.
CONTRARY TO LAW.[3]
The prosecution established the following facts:
Narciso Gabriel acquired from his half-sister Erlinda Monter a cow, subject of the case,
upon its birth on March 10, 1984. The cow remained under the care of Erlinda Monter for
sometime. Subsequently, Narciso gave the care and custody of the animal, first, to Generoso
Cabonce, from October 24, 1984 to March 17, 1985; then to Maria Tura, from May 17, 1985 to
March 2, 1986; and lastly, to Gardenio Agapay, from March 3, 1986 until March 14, 1986 when
it was lost.[4] It appears that at 5 oclock in the afternoon of March 13, 1986, Agapay took the
cow to graze in the mountain of Pilipogan in Barangay Candatag, about 40 meters from his
hut. However, when he came back for it at past 9 oclock in the morning of March 14, 1986,
Agapay found the cow gone. He found hoof prints which led to the house of Filomeno
Vallejos. He was told that petitioner Exuperancio Canta had taken the animal.[5]
Upon instructions of the owner, Gardenio and Maria Tura went to recover the animal from
petitioners wife, but they were informed that petitioner had delivered the cow to his father,
Florentino Canta, who was at that time barangay captain of Laca, Padre Burgos, Southern
Leyte. Accordingly, the two went to Florentinos house. On their way, they met petitioner who
told them that if Narciso was the owner, he should claim the cow
himself. Nevertheless, petitioner accompanied the two to his fathers house, where Maria
recognized the cow. As petitioners father was not in the house, petitioner told Gardenio and
Maria he would call them the next day so that they could talk the matter over with his father.
However, petitioner never called them. Hence, Narciso Gabriel reported the matter to the
police of Malitbog, Southern Leyte.[6] As a result, Narciso and petitioner Exuperancio were
called to an investigation. Petitioner admitted taking the cow but claimed that it was his and that
it was lost on December 3, 1985. He presented two certificates of ownership, one dated March
17, 1986 and another dated February 27, 1985, to support his claim (Exh. B). [7]
Narciso presented a certificate of ownership issued on March 9, 1986, signed by the
municipal treasurer, in which the cow was described as two years old and female. On the reverse
side of the certificate is the drawing of a cow with cowlicks in the middle of the forehead,
between the ears, on the right and left back, and at the base of the forelegs and hindlegs (Exhs.
C, C-1 to 4).[8] All four caretakers of the cow identified the cow as the same one they had taken
care of, based on the location of its cowlicks, its sex, and its color. Gardenio described the cow
as black in color, with a small portion of its abdomen containing a brownish cowlick, a cowlick
in the middle of the forehead, another at the back portion between the two ears, and four
cowlicks located near the base of its forelegs and the hindlegs.[9]
On the other hand, petitioner claimed he acquired the animal under an agreement which
he had with Pat. Diosdado Villanueva, that petitioner take care of a female cow of Pat.
Villanueva in consideration for which petitioner would get a calf if the cow produced two
offsprings. Petitioner claimed that the cow in question was his share and that it was born on
December 5, 1984. This cow, however, was lost on December 2, 1985. Petitioner said he
reported the loss to the police of Macrohon, Padre Burgos, and Malitbog, on December 3, 1985
(Exh. A and Exh. 1).[10]
Petitioner said that on March 14, 1986, his uncle Meno told him that he had seen the cow
at Pilipogan, under the care of Gardenio Agapay. He, therefore, went to Pilipogan with the
mother cow on March 14, 1986 to see whether the cow would suckle the mother cow. As the
cow did, petitioner took it with him and brought it, together with the mother cow, to his father
Florentino Canta.[11] Maria Tura tried to get the cow, but Florentino refused to give it to her and
instead told her to callNarciso so that they could determine the ownership of the cow. [12] As
Narciso did not come the following day, although Maria did, Florentino said he told his son to
take the cow to the Municipal Hall of Padre Burgos. Petitioner did as he was told.Three days
later, Florentino and Exuperancio were called to the police station for investigation. [13]
Petitioner presented a Certificate of Ownership of Large Cattle dated February 27,
1985[14] and a statement executed by Franklin Telen, janitor at the treasurers office of the
municipality of Padre Burgos, to the effect that he issued a Certificate of Ownership of Large
Cattle in the name of petitioner Exuperancio Canta on February 27, 1985 (Exh. 5). [15] The
statement was executed at the preliminary investigation of the complaint filed by petitioner
against Narciso.[16]
Petitioners Certificate of Ownership was, however, denied by the municipal treasurer,
who stated that petitioner Exuperancio Canta had no Certificate of Ownership of Large Cattle
in the municipality of Padre Burgos (Exhs. E, E-1 and 2).[17] On the other hand, Telen testified
that he issued the Certificate of Ownership of Large Cattle to petitioner on March 24, 1986 but,
at the instance of petitioner, he (Telen) antedated it to February 27, 1985.[18]
On January 24, 1997, the trial court rendered its decision finding petitioner guilty of the
offense charged. In giving credence to the evidence for the prosecution, the trial court stated:
From the affidavits and testimonies of the complainant and his witnesses, it is indubitable that
it was accused Exuperancio Canta who actually took the cow away without the knowledge and
consent of either the owner/raiser/caretaker Gardenio Agapay.
That the taking of the cow by the accused was done with strategy and stealth considering that
it was made at the time when Gardenio Agapay was at his shelter-hut forty (40) meters away
tethered to a coconut tree but separated by a hill.
The accused in his defense tried to justify his taking away of the cow by claiming
ownership. He, however, failed to prove such ownership. Accused alleged that on February
27, 1985 he was issued a Certificate of Ownership of Large Cattle (Exh. 2-A) for his cow by
Franklin Telen, a janitor at the Office of the Municipal Treasurer of Padre Burgos, a
neighboring town. On rebuttal Franklin Telen denied in Court the testimony of the accused
and even categorically declared that it was only on March 24, 1986 that the accused brought
the cow to the Municipal Hall of Padre Burgos, when he issued a Certificate of Ownership of
Large Cattle for the cow, and not on February 27, 1985. Franklin Telen testified thus:
Q. According to the defense, this Certificate of Ownership of Large Cattle was
issued by you on February 27, 1985. Is that correct?
A. Based on the request of Exuperancio, I antedated this.
(TSN, June 3, 1992, p. 7)
52
The testimony of Franklin Telen was confirmed in open court by no less than the Municipal
Treasurer of Padre Burgos, Mr. Feliciano Salva. (TSN, September 29, 1992, pp. 5-8).
If accused Exuperancio Canta were the owner of the cow in question, why would he lie on its
registration? And why would he have to ask Mr. Franklin Telen to antedate its registry? It is
clear that accused secured a Certificate of Ownership of Large Cattle (Exh. 2-A) by feigning
and manipulation (Exhs. A & B) only after the act complained of in the instant case was
committed on March 14, 1986. His claim of ownership upon which he justifies his taking
away of the cow has no leg to stand on.Upon the other hand, the complainant has shown all
the regular and necessary proofs of ownership of the cow in question.[19]
The Court of Appeals affirmed the trial courts decision and denied petitioners motion for
reconsideration. Hence, this petition. It is contended that the prosecution failed to prove beyond
reasonable doubt his criminal intent in taking the disputed cow.
First. Petitioner claims good faith and honest belief in taking the cow. He cites the
following circumstances to prove his claim:
1. He brought the mother cow to Pilipogan to see if the cow in question would suckle
to the mother cow, thus proving his ownership of it;
2. He compared the cowlicks of the subject cow to that indicated in the Certificate
of Ownership of Large Cattle issued on February 27, 1985 in his name, and
found that they tally;
3. He immediately turned over the cow to the barangay captain, after taking it, and
later to the police authorities, after a dispute arose as to its ownership; and
4. He filed a criminal complaint against Narciso Gabriel for violation of P. D. No.
533.
These contentions are without merit.
P.D. No. 533, 2(c) defines cattle-rustling as
. . . the taking away by any means, methods or scheme, without the consent of the
owner/raiser, of any of the abovementioned animals whether or not for profit or gain, or
whether committed with or without violence against or intimidation of any person or force
upon things.
The crime is committed if the following elements concur: (1) a large cattle is taken; (2) it
belongs to another; (3) the taking is done without the consent of the owner; (4) the taking is
done by any means, methods or scheme; (5) the taking is with or without intent to gain; and (6)
the taking is accomplished with or without violence or intimidation against person or force upon
things.[20]
These requisites are present in this case. First, there is no question that the cow belongs to
Narciso Gabriel. Petitioners only defense is that in taking the animal he acted in good faith and
in the honest belief that it was the cow which he had lost.Second, petitioner, without the consent
of the owner, took the cow from the custody of the caretaker, Gardenio Agapay, despite the fact
that he knew all along that the latter was holding the animal for the owner, Narciso. Third,
petitioner falsified his Certificate of Ownership of Large Cattle by asking Telen to antedate it
prior to the taking to make it appear that he owned the cow in question. Fourth, petitioner
adopted means, methods, or schemes to deprive Narciso of his possession of his cow, thus
manifesting his intent to gain. Fifth, no violence or intimidation against persons or force upon
things attended the commission of the crime.
Indeed, the evidence shows that the Certificate of Ownership of Large Cattle which
petitioner presented to prove his ownership was falsified. Franklin Telen, the janitor in the
municipal treasurers office, admitted that he issued the certificate to petitioner 10 days after
Narcisos cow had been stolen. Although Telen has previously executed a sworn statement
claiming that he issued the certificate on February 27, 1985, he later admitted that he antedated
it at the instance of petitioner Exuperancio Canta, his friend, who assured him that the cow was
his.[21]
Telens testimony was corroborated by the certification of the municipal treasurer of Padre
Burgos that no registration in the name of petitioner was recorded in the municipal
records. Thus, petitioners claim that the cowlicks found on the cow tally with that indicated on
the Certificate of Ownership of Large Cattle has no value, as this same certificate was issued
after the cow had been taken by petitioner from Gardenio Agapay. Obviously, he had every
opportunity to make sure that the drawings on the certificate would tally with that existing on
the cow in question.
The fact that petitioner took the cow to the barangay captain and later to the police
authorities does not prove his good faith. He had already committed the crime, and the barangay
captain to whom he delivered the cow after taking it from its owner is his own father. While the
records show that he filed on April 30, 1986 a criminal complaint against Narciso Gabriel, the
complaint was dismissed after it was shown that it was filed as a countercharge to a complaint
earlier filed on April 16, 1986 against him by Narciso Gabriel.
Petitioner says that he brought a mother cow to see if the cow in question would suckle to
the mother cow. But cows frequently attempt to suckle to alien cows.[22] Hence, the fact that the
cow suckled to the mother cow brought by petitioner is not conclusive proof that it was the
offspring of the mother cow.
Second. Petitioner contends that even assuming that his Certificate of Ownership is not in
order, it does not necessarily follow that he did not believe in good faith that the cow was his. If
it turned out later that he was mistaken, he argues that he committed only a mistake of fact but
he is not criminally liable.
Petitioners Certificate of Ownership is not only not in order. It is fraudulent, having been
antedated to make it appear it had been issued to him before he allegedly took the cow in
question. That he obtained such fraudulent certificate and made use of it negates his claim of
good faith and honest mistake. That he took the cow despite the fact that he knew it was in the
custody of its caretaker cannot save him from the consequences of his act. [23] As the Solicitor
General states in his Comment:
If petitioner had been responsible and careful he would have first verified the identity and/or
ownership of the cow from either Narciso Gabriel or Gardenio Agapay, who is petitioners
cousin (TSN, 9/12/91, p. 26). Petitioner, however, did not do so despite the opportunity and
instead rushed to take the cow. Thus, even if petitioner had committed a mistake of fact he is
not exempted from criminal liability due to his negligence.[24]
In any event, petitioner was not justified in taking the cow without the knowledge and
permission of its owner. If he thought it was the cow he had allegedly lost, he should have
resorted to the court for the settlement of his claim. Art. 433 of the Civil Code provides that The
true owner must resort to judicial process for the recovery of the property. What petitioner did
in this case was to take the law in his own hands.[25] He surreptitiously took the cow from the
custody of the caretaker, Gardenio Agapay, which act belies his claim of good faith.
53
 For the foregoing reasons, we hold that the evidence fully supports the finding of both the
trial court and the Court of Appeals that accused-appellant is guilty as charged. There is
therefore no reason to disturb their findings.
However, the decision of the Court of Appeals should be modified in two respects.
First, accused-appellant should be given the benefit of the mitigating circumstance
analogous to voluntary surrender. The circumstance of voluntary surrender has the following
elements: (1) the offender has not actually been arrested; (2) the offender surrenders to a person
in authority or to the latters agent; and (3) the surrender is voluntary.[26] In the present case,
petitioner Exuperancio Canta had not actually been arrested. In fact, no complaint had yet been
filed against him when he surrendered the cow to the authorities. It has been repeatedly held
that for surrender to be voluntary, there must be an intent to submit oneself unconditionally to
the authorities, showing an intention to save the authorities the trouble and expense that his
search and capture would require.[27] In petitioners case, he voluntarily took the cow to the
municipal hall of Padre Burgos to place it unconditionally in the custody of the authorities and
thus saved them the trouble of having to recover the cow from him. This circumstance can be
considered analogous to voluntary surrender and should be considered in favor of petitioner.
Second, the trial court correctly found petitioner guilty of violation of 2(c) of P. D. No.
533, otherwise known as the Anti-Cattle Rustling Law of 1974. However, it erred in imposing
the penalty of 10 years and 1 day of prision mayor, as minimum, to 12 years, 5 months and 11
days of reclusion temporal medium, as maximum. The trial court apparently considered P. D.
No. 533 as a special law and applied 1 of the Indeterminate Sentence Law, which provides that
if the offense is punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by
said law and the minimum shall not be less than the minimum term prescribed by the same.
However, as held in People v. Macatanda,[28] P. D. No. 533 is not a special law. The penalty for
its violation is in terms of the classification and duration of penalties prescribed in the Revised
Penal Code, thus indicating that the intent of the lawmaker was to amend the Revised Penal
Code with respect to the offense of theft of large cattle. In fact, 10 of the law provides:

The provisions of Articles 309 and 310 of Act No. 3815, otherwise known as the Revised
Penal Code, as amended, pertinent provisions of the Revised Administrative Code, as
amended, all laws, decrees, orders, instructions, rules and regulations which are inconsistent
with this Decree are hereby repealed or modified accordingly.

There being one mitigating circumstance and no aggravating circumstance in the

commission of the crime, the penalty to be imposed in this case should be fixed in its minimum
period. Applying the Indeterminate Sentence Law, in relation to Art. 64 of the Revised Penal
Code, petitioner should be sentenced to an indeterminate penalty, the minimum of which is
within the range of the penalty next lower in degree, i. e., prision correccional maximum
to prision mayor medium, and the maximum of which is prision mayor in its maximum period.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED, with the
modification that petitioner Exuperancio Canta is hereby SENTENCED to suffer a prison term
of four (4) years and two (2) months of prision correccionalmaximum, as minimum, to ten (10)
years and one (1) day of prision mayor maximum, as maximum.
SO ORDERED.

54