Page |1
SECOND DIVISION Upon arrival in the municipal building at around eight
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.
FACTS OF THE CASE
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).
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.
ARTICLE 13 OF THE RPC
of the latter, is guilty of the crime of homicide, and the
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).
RULING
There is a rule that "an individual who unlawfully inflicts
wounds upon another person, which result in the death
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
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.
FIRST DIVISION
[G.R. No. 135701. May 9, 2002]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
ELBERT CALLET y SABANAL, accused-appellant.
DECISION
PUNO, J.:
The accused, ELBERT CALLET y SABANAL was charged
with Murder before the Regional Trial Court of Negros
Oriental, Dumaguete City, Branch 30. The crime was
allegedly committed as follows:[1]
That on or about 5:00 oclock in the afternoon of
September 15, 1996, at Barangay Tambulan, Tayasan,
Negros Oriental, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused with
intent to kill, evident premeditation and treachery, did
then and there willfully, unlawfully and feloniously
attack, assault and stab one ALFREDO SENADOR with
the use of a knife with which the said accused was then
armed and provided, thereby inflicting upon said victim
the following injury, to wit:
A stab wound measuring two (2) cm. in length, 0.3 cm.
in width and eleven (11) cm. in deepness located at the
left side of the trunk, about two (2) cm. above the left
ARTICLE 13 OF THE RPC
Page |2
clavicular bone. The wound was directed downward and him. Alfredo replied that the accused stabbed him. The
slightly to the right.which injury or wound caused the accused was then standing at the basketball court.
death of said ALFREDO SENADOR shortly thereafter. Manuel helped Lecpoy and Eduardo carry Alfredo under
a mango tree. He thought of bringing Alfredo to the
Contrary to Article 248 of the Revised Penal Code. hospital when he saw blood oozing from his mouth.
After a moment, Alfredo died.
When arraigned on June 11, 1997, the accused pled not
guilty. [2] Dr. Rogelio Kho, Municipal Health Officer at Tayasan,
autopsied the body of Alfredo on September 16, 1996.
The doctor found a stab wound on the left shoulder of
The prosecution presented the testimonies of Dr.
Alfredo, near the base of the neck. He opined that the
Rogelio Kho, Lecpoy Senador, Eduardo Perater, Manuel
victim died due to severe hemorrhage and irreversible
Gabonales and Francisca Senador. For the defense, the
shock due to stab wound.[3]
accused, Elbert Callet, PO3 Roy Balasabas, Barangay
Captain Dominador Calijan and Nilo Callet testified.
The defense gave a different account of the stabbing
incident.
The evidence for the prosecution shows that on
September 15, 1996, at 5:00 p.m., the victim, Alfredo
Senador, his 12-year old son, Lecpoy Senador, and Allegedly, at 3:00 p.m., the accused, Elbert Callet,
Eduardo Perater were at the flea market of barangay played volleyball near the flea market. After two (2)
Tambulan, Tayasan, Negros Oriental. There were many games, he stopped playing. It was past 4:00 p.m. He
stayed at the flea market and watched as others played
people in the vicinity. Some were playing cara y cruz
while others were playing volleyball. volleyball. While watching the game, he was hit on the
left side of the body by Alfredos elbow. He asked
Alfredo why he hit him. Alfredo retorted, Are you angry?
Alfredo, Lecpoy and Eduardo were beside each other as
Next, Alfredo grabbed his left arm and tried to twist it.
they watched a cara y cruz game. Alfredo sat close to
He pleaded with Alfredo to let go of his arm, but Alfredo
the ground, with his buttocks resting on his right foot.
warned that he would be his third victim if he would get
Lecpoy and Eduardo sat on a piece of wood and on a
angry with him. As Alfredo was pulling out a hunting
stone, respectively.
knife from his waist, he (the accused) managed to stab
him first. Thereafter, he ran towards the municipal hall
Out of nowhere, the accused, Elbert Callet, appeared to surrender.
behind Alfredo and stabbed the latter on the left
shoulder near the base of the neck with a 9-inch
Dominador Calijan, the Barangay Captain of Tayasan,
hunting knife. Instinctively, Alfredo stood up and
happened to be at the basketball court near the scene
managed to walk a few meters. When he fell on the
of the crime. He encountered Alfredo along the road
ground, Lecpoy and Eduardo rushed to help him but to
after the stabbing incident. Alfredo had a stab wound on
no avail. Alfredo died shortly thereafter.
the lower nape. Calijan asked Alfredo who stabbed him
and the latter gave the name of the accused. He
Manuel Gabonales was also at the flea market at that directed his barangay tanods to arrest the accused.
time. At 5:00 p.m., he saw people running away from
the place where there was a cara y cruz game. Next, he
saw Alfredo and the accused. Alfredo was soaked in
blood while the accused was running towards the
basketball court. He asked Alfredo what happened to

Barangay tanods Nilo Callet and Jesus Dagodog were
able to catch up with the accused three (3) kilometers
away from the scene of the crime. He was still holding
the hunting knife and refused to surrender it for fear
that the relatives of Alfredo would retaliate. The
barangay tanods escorted him to the municipal hall.
Along the way, they asked him why he stabbed Alfredo.
The accused replied that he could not help it and that
everything happened too fast. Upon reaching the
municipal hall, the accused surrendered the hunting
knife. He was turned over to PO3 Roy Balasbas for
investigation.
After the trial, the accused was found guilty of murder.
The fallo of the trial courts decision[4] states:
WHEREFORE, finding the accused ELBERT CALLET Y
SABANAL guilty beyond a scintilla of doubt for the crime
of MURDER penalized under Article 248 of the Revised
Penal Code, taking into account the mitigating
circumstance of voluntary surrender without any
aggravating circumstance, the accused is hereby
sentenced to RECLUSION PERPETUA with all the
accessory penalties provided under Article 41 of the
Revised Penal Code.
RULING
The accused invokes self-defense for his acquittal. In
self-defense, the burden of proof rests upon the
accused. Thus, he must present clear and convincing
evidence that the following elements are present, to wit:
(1) unlawful aggression; (2) reasonable necessity of the
means employed to prevent or repel it; and (3) lack of
sufficient provocation on the part of the person
defending himself.[12] The accused failed to discharge
this task.
The accused alleged that he and the victim had hunting
knives during their encounter. After the victims elbow
hit the left side of his body, the victim grabbed his left
arm and tried to twist it with his right arm. A verbal
exchange ensued between them and then the victim,
using the left arm tried to unsheathe the knife that was
ARTICLE 13 OF THE RPC
tucked at his left side. However, the victim was not able
to pull out the knife because it got entangled with his
shirt tucked in his pants. In defense, the accused
allegedly pulled out his own knife that was tucked in the
right side of his waist using his left arm and stabbed the
victim on the left shoulder. He then retreated and left as
the victim was still trying to approach him.[13]
The version of the accused does not inspire belief. The
incident happened in plain view of many witnesses at
the flea market. He even claimed he was with a certain
Guale and one Sonny Boy at that time.[14] Yet, nobody
corroborated his story. Indeed, his narration on how the
victim attacked him is improbable. In the witness chair,
he admitted that the victim was bigger than him and
that his left hand was restrained by the victim.[15] It is
thus incredible how he could pull out his knife from his
right side, with the use of his left hand,[16] raise that
knife high enough to hit the shoulder of the victim and
inflict an 11-cm. deep wound upon him. It is more
probable that the victim was sitting down when the
accused attacked him from behind as the prosecution
witnesses testified. Equally incredulous is the claim that
after being injured, the victim still tried to approach and
attack him, hence, he had to retreat. The accuseds
uncorroborated plea of self-defense cannot be
entertained, especially when it is, in itself, extremely
doubtful.[17]
The Information charged that evident premeditation and
treachery attended the commission of the crime. The
evidence failed to prove evident premeditation. Evident
premeditation requires proof of: (1) the time when the
accused decided to commit the crime; (2) an overt act
manifestly indicating that he has clung to his
determination; and (3) sufficient lapse of time between
the decision and the execution to allow the accused to
reflect upon the consequences of his act.[18] The
records show that the prosecution did not adduce any
evidence to prove these elements.
Page |3
Treachery or alevosia exists 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.[19]
The trial court correctly held that treachery qualified the
killing of the victim to murder. The stabbing was from
behind, done in a sudden and unexpected manner while
the victim was sitting close to the ground, with his
buttocks resting on his right foot, and while his attention
was focused on the on-going cara y cruz game.[20]
Clearly, the victim was not able to defend himself from
the mode of attack.
The trial court also correctly credited the accused with
voluntary surrender to mitigate his liability. Voluntary
surrender requires that the offender had not been
actually arrested; that he surrendered himself to a
person in authority or to the latters agent; and that the
surrender was voluntary.
The records reveal that the accused ran toward the
municipal building after the stabbing incident. On his
way to the municipal building, he admitted to Barangay
Tanods Nilo Callet and Jesus Dagodog that he stabbed
the victim. Although he did not immediately turn over
his weapon to them for fear of retaliation from the
victims relatives, he did so as soon as they reached the
municipal building. Undoubtedly, the conduct he
displayed was spontaneous as it shows his interest to
give himself up unconditionally to the authorities, thus
saving the State the trouble and expenses necessarily
incurred in his search and capture.[21]
The accused also claims that his liability should be
mitigated by the fact that he had no intention to commit
so grave a wrong. We are not persuaded.

The lack of intent to commit a wrong so grave is an
internal state. It is weighed based on the weapon used,
the part of the body injured, the injury inflicted and the
manner it is inflicted. The fact that the accused used a
9-inch hunting knife in attacking the victim from behind,
without giving him an opportunity to defend himself,
clearly shows that he intended to do what he actually
did, and he must be held responsible therefor, without
the benefit of this mitigating circumstance.[22]
As the killing was attended by treachery, the accused is
liable for the crime of murder. The prescribed penalty
therefor is reclusion perpetua to death.[23] In view of
the presence of the mitigating circumstance of voluntary
surrender, the trial court correctly meted the penalty of
reclusion perpetua against the accused.
The civil indemnity awarded in favor of the legal heirs of
the victim, Alfredo Senador, in the amount of
P50,000.00 is in accord with the Courts current policy.
IN VIEW WHEREOF, the decision appealed from, finding
the accused, ELBERT CALLET, guilty beyond reasonable
doubt of Murder in Criminal Case No. 12995, and
sentencing him to suffer reclusion perpetua and to pay
the legal heirs of the victim, ALFREDO SENADOR, the
amount of P50,000.00 as civil indemnity, and to pay the
costs, is AFFIRMED.
[G.R. No. 125053. March 25, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. CHRISTOPHER CAA LEONOR, accused-
appellant.
DECISION
DAVIDE, JR., C.J.:
ARTICLE 13 OF THE RPC
In the decision[1] of 22 March 1996 in Criminal Case
No. 95-212, the Regional Trial Court of Paraaque, Branch
274, found accused-appellant Christopher Caa Leonor
guilty beyond reasonable doubt of the crime of robbery
with homicide and sentenced him to suffer the penalty of
death and to pay the heirs of the victim P50,000 as death
indemnity; P44,318 as actual damages; P2 million as
moral damages; and P50,000 as attorneys fees.
CHRISTOPHER was charged in an
information[2] whose accusatory portion reads as follows:
That on or about the 15th day of May 1995, in the
Municipality of Paraaque, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the
above-named accused, with intent to gain and against
the will of complainant Ma. Teresa Tarlengco and by
means of force, violence and intimidation employed
upon the person of said complainant did then and there
willfully, unlawfully and feloniously divest her cash
money worth P900.00 and Titus wrist watch valued at
an undetermined amount, belonging to said Ma. Teresa
Tarlengco, to the damage and prejudice of the latter, in
the aforementioned amount; that on the occasion of the
said Robbery, the above-named accused, with intent to
kill, without justifiable reason, did then and there
willfully, unlawfully and feloniously attack, assault and
stab said Ma. Teresa Tarlengco, thereby inflicting upon
the latter serious stab wounds which caused her death.
At his arraignment on 14 June 1995, CHRISTOPHER
entered a plea of not guilty.[3]
It is undisputed that on 15 May 1995 at the
Hermanos Building in General Santos Avenue, Bicutan
Extension, Paraaque City, at around 11:30 a.m.,
CHRISTOPHER stabbed dentist Dr. Maria Teresa
Tarlengco, which wound ultimately led to her death. That
much is admitted by CHRISTOPHER. The prosecution and
the defense differ, however, in the circumstances
surrounding the incident.
The prosecution had as witnesses Reynaldo
Baquilod, SPO1 Luis F. Galeno, PO3 Mateo Interia, Dr.
Ravell Ronald Baluyot, Dr. Edgardo de Guzman, Dr. Paul
Page |4
Pepa, Beverly Vidanes, Dr. John Enrique Franco,
Fernando Tarlengco, Geraldine Tarlengco, Joseph
Sumalbar, and Asst. Public Prosecutor Elizabeth Yu
Guray. The defense presented CHRISTOPHER, Leopoldo
Leonor Leonidas, Dr. Alfredo Besa, Renato Leonor and
Alexander Pagubasan.
The Office of the Solicitor General partly
summarized the evidence for the prosecution as follows:
In the morning of May 15, 1995, Dr. Maria Teresa
Tarlengco, a dentist by profession, was at her clinic at
the third floor of the Hermanos Building, Bicutan,
Paraaque, Metro Manila, when a man entered and
inquired about the cost of tooth extraction. After Dr.
Tarlengco quoted her professional fee, the man, who
was later on identified as Christopher Leonor, said that
he would come back and then left in a hurry. Minutes
later, Leonor came back[,] and Dr. Tarlengco told him to
take a seat and wait. Dr. Tarlengco was preparing her
dental instruments when Leonor barged in and
demanded money. Dr. Tarlengco told Leonor that her
money [was] on the table. On hearing this, Leonor
stabbed Dr. Tarlengco, grabbed her watch and ran
away. Dr. Tarlengco struggled out of the clinic and saw
the man running out of the building, Dr. Tarlengco
shouted for help.
Reynaldo Baquilod, building security guard, heard Dr.
Tarlengco shouting, Tulungan ninyo ako, sinaksak ako
ng taong iyon. Baquilod noticed that Dr. Tarlengco was
referring to the man running out of the building, coming
from upstairs. Baquilod chased Leonor up to Daang Hari
Street where he was joined by traffic policeman Luis
Galeno who was alerted by people running after a
person with bloodied shirt. When Galeno and Baquilod
caught up with Leonor, Baquilod grabbed Leonors hand
and took therefrom a Titus wristwatch and P900
cash. When queried, Leonor readily answered, Sir, hindi
ko naman gusto po ito. Ginawa ko lang ito dahil
kailangan ng pamilya ko. Leonor was brought to the
Paraaque Police Block Station, PO3 Interia who was
instructed to investigate proceeded to Dr. Tarlengcos
clinic, where they saw, among other[ ] [things], a
bloodied balisong (fan knife) at the ground floor of the

Hermanos building. Baquilod turned over the watch and
money he took from Leonor to Interia. Thereafter,
Galeno and Interia returned to the police station where
they were interrogated.
Dr. Tarlengco was brought to the South Super Highway
Medical Center where she underwent an emergency
operation for a stab wound on her chest. After the
operation, Dr. Tarlengcos father, with the doctors
permission, was allowed to talk to his daughter inside
the operating room. Although Dr. Tarlengco was
gasping for breath, she spoke to her father, viz:
Q: So were you able to talk with your daughter while
in the Operating Room? What did she say, if
any, Mr. Tarlengco?
A: She said that this man pretended to be a patient.
Q: And what else did she say?
A: He asked her how much would it cost to pull a
tooth and then she said, Dad, when I quoted my
price, he said that he would come back and left
in a hurry.
Q: What else did she say, if any, Mr. Tarlengco?
A: After a minute, he came back, I told him to wait,
to sit down first at my Waiting Area because I
[had] to still prepare the instruments needed.
Q: Then, what happened after that?
A: She said, while I was busy preparing my
instrument, Dad, this man barged in. He
demanded for my money. I told him it [was] on
my table. And after telling that, Dad, he stabbed
me and then he grabbed my watch and he [ran]
away and she said, I struggled Dad, to come out
of the clinic and when I was on the porch, I saw
this man coming [sic] out of the building. I
shouted for help, I said Saklolo, saklolo,
sinaksak ako ng taong iyan. Hulihin ninyo.
Q: Then what else did she say after she narrated to
you that incident, Mr. Tarlengco?
ARTICLE 13 OF THE RPC
A: After that, in tears, she said that Dad, I dont know,
why inspite of getting my money this man
stabbed me and I was numbed at that point of
time, I [could not] talk anymore, I [could not]
tell anything to her anymore, I just combed her
hair with my fingers.
RULING
Lastly, we find no mitigating circumstance in this
case. CHRISTOPHER claims that he did not intend to
commit so grave a wrong as the act committed; that
there was sufficient provocation by the offended party
immediately preceding the offense; that he acted upon
an impulse so powerful as to have produced in him
passion and obfuscation; that he voluntarily surrendered
to a person in authority; and that he voluntarily confessed
having committed homicide.
Lack of intent to commit so grave a wrong does not
mitigate in homicide cases where the accused used a
deadly weapon in inflicting mortal wounds on vital organs
of the victim,[31] as in this case.
The provocation sufficient to mitigate an offense
must be proportionate to the gravity of the retaliatory
act.[32
CHRISTOPHER is thus claiming that a push and bad
words justify retaliation with a knife. Such claim is
undeserving of belief and does not entitle CHRISTOPHER
to the benefit of the mitigating circumstance prior
provocation by the offended party.
CHRISTOPHER could not have been provoked by
passion or obfuscation as, according to him, he
momentarily blacked out and instantly found his fan knife
embedded in Dr. Tarlengcos chest. To be blinded by
passion and obfuscation is to lose self-control,[34] not
consciousness. Moreover, courts cannot appreciate
passion and obfuscation unless there is a clear showing
that there were causes naturally tending to produce such
powerful excitement as to deprive the accused of reason
and self-control.[35] As we discussed earlier, the events
Page |5
leading to the stabbing precluded any natural tendency
to produce a powerful excitement in CHRISTOPHER.
CHRISTOPHER did not voluntarily surrender either
to a person in authority or to any other person. While he
was being pursued by Security Guard Baquilod, he
intentionally went to where there were many people,
presumably to confuse Baquilod. Fortunately, Police
Officer Galeno was able to grab him by the hand and
prevented him from further eluding justice. There is
nothing in the record which can lead us to conclude that
he surrendered to anyone.
Neither was there voluntary confession in the
instant case. The mitigating circumstance contemplated
by law is a plea of guilty made spontaneously and
unconditionally in open court before the presentation of
evidence for the prosecution.[36] CHRISTOPHER made no
such plea.
What remains to be resolved is the penalty to be
imposed. The penalty for robbery with homicide
is reclusion perpetua to death.[37] There being no
evidence of aggravating or mitigating circumstance
against or in favor of CHRISTOPHER, the lower of the two
indivisible penalties shall be imposed,[38] without the
benefit of the Indeterminate Sentence Law.[39] We
likewise believe that the awards in favor of Dr. Tarlengcos
family of moral damages of P2 million and attorneys fees
of P500,000 are excessive. We reduce them to P50,000
and P25,000, respectively.
WHEREFORE, the decision of Branch 274 of the
Regional Trial Court of Paraaque in Criminal Case No. 95-
212 is hereby MODIFIED. As modified, accused-appellant
CHRISTOPHER CAA LEONOR is found guilty beyond
reasonable doubt as principal of the crime of robbery with
homicide, and is hereby sentenced to suffer the penalty
of reclusion perpetua and to pay the heirs of the victim,
Dr. Teresa Tarlengco, P50,000 as indemnity for
death; P44,318 as actual damages; P50,000 as moral
damages; and P25,000 as attorneys fees, without
subsidiary imprisonment in case of insolvency.
Costs against accused-appellant.

FIRST DIVISION
[G.R. Nos. 132325-26. July 26, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. ROMEO ESPINA, accused-
appellant.
DECISION
YNARES-SANTIAGO, J.:
This is an appeal from the Decision[1] of the
Regional Trial Court of Tagbilaran, Branch 47, in Criminal
Case Nos. 8194 and 8155 convicting accused-appellant of
the crime of Murder qualified by Illegal Possession of
Firearms under P.D. No. 1866, as amended by R.A. No.
8294; and sentencing him to suffer the penalty
of Reclusion Perpetua and to pay the heirs of the
deceased the sum of P50,000.00 and the costs.
The information for the crime of murder alleged:
That on or about the 30th day of September, 1992, in
the municipality of Tubigon, province of Bohol,
Philippines and within the jurisdiction of this Honorable
Court, the abovenamed accused without justifiable
motive, with treachery and abuse of superior strength,
the accused being then armed with a short firearm and
without giving opportunity to the victim to defend
himself, did then and there willfully, unlawfully and
feloniously attack, assault and shoot one Romeo
Bulicatin, with the use of said firearm, hitting the latter
on the vital part of his body resulting to his death; to
the damage and prejudice of the heirs of the deceased.
Acts committed contrary to the provisions of Article 248
of the Revised Penal Code with the aggravating
circumstance of nighttime being purposely sought for or
ARTICLE 13 OF THE RPC
taken advantage of by the accused to facilitate the
commission of the crime.[2]
For Illegal Possession of Firearms, the information stated:
That on or about the 30th day of September, 1992, in
the municipality of Tubigon, province of Bohol,
Philippines and within the jurisdiction of this Honorable
Court, the abovenamed accused, with intent to possess
firearm and ammunition did then and there willfully,
unlawfully and criminally keep, carry and have in his
possession, custody and control a short firearm and
ammunition without first obtaining the necessary permit
or license to possess the said firearm and ammunition
from competent authority, which firearm and
ammunition were carried by the accused outside of his
residence and used by him in committing the crime of
Murder of which one Romeo Bulicatin was the victim; to
the damage and prejudice of the Republic of the
Philippines. Acts committed contrary to the provisions of
Presidential Decree No. 1866.[3]
Upon arraignment on June 27, 1994, accused-
appellant pleaded not guilty to both charges;[4] thereafter
trial followed.
The facts as adduced by the prosecution are
synthesized in the Peoples Brief, thus -
In the afternoon of September 30, 1992, the members
of an association locally known as the ripa-ripa went to
the house of Eufronia Pagas located at sitio Batic, Tan-
awan, Tubigon, Bohol for their scheduled contribution to
a fund intended for a wedding celebration. (p. 3, August
23, 1996, TSN; p. 3, January 21, 1997, TSN) Among
those present thereat were Romeo Bulicatin, Rogelio
Espina, Samson Abuloc who were having a drinking
spree and playing chikika, a card game. (p. 4, May 9,
1995, TSN).
When accused-appellant arrived, Romeo asked three (3)
bottles of kulafu wine from him and he acceded by
buying three (3) bottles of kulafu wine from the store of
Eufronia Pagas. Later on, at around 4:00 of that
Page |6
afternoon, Romeo again demanded another bottle of
kulafu wine from accused-appellant but this time, the
latter refused to give in to the demand. (p. 4, January
21, 1997, TSN) Romeo then proceeded to where
accused-appellant was playing cards and without any
warning, urinated on the latter and clipped him under
his (Romeo) arms. (p. 4, August 23, 1996, TSN)
Accused-appellant got angry. He however did not
engage Romeo in any altercation but instead turned
away and went home. (p. 5, May 9, 1995, TSN)
Later on in the evening, at about 9:00 p.m., while
Romeo, Rogelio and Samson were still having a drinking
spree at the store of Eufronia Pagas, they heard
accused-appellant calling Romeo from outside, saying,
Borgs, get out because I have something to say. The
trio came down from the house. Rogelio went down
first, followed by Samson and Romeo (pp. 5-
6, ibid.) When Rogelio reached the ground, accused-
appellant told him to drop down while Samson also
dropped himself to the ground when he saw accused-
appellant about to draw his firearm. At that juncture,
Romeo was still at the stairway and when he turned his
back towards accused-appellant, the latter shot him,
hitting him at the back. Romeo ran away but he was
chased by accused-appellant who fired two (2) more
shots at him. (p. 5, March 19, 1996, TSN; p. 7, May 9,
1995)
Samson ran away from the scene of the incident and
upon reaching the house of Poloy Concha, he saw
Romeo outside the house asking for help. Samson asked
some of residents to help him bring Romeo to barangay
Cawayanan. (pp. 14-15, March 19, 1996, TSN) They
loaded Romeo in a rattan cradle and upon reaching the
said barangay at about 3:00 oclock of the following
morning, they transferred him to the vehicle owned by a
certain Emiliano Fucanan. From the said barangay,
Romeo was taken to the house of Mayor Placing
Mascarinas in Poblacion, Tubigon, Bohol where he was
transferred to the ambulance which took him to the
Celestino Gallares Memorial Hospital in Tagbilaran
City. On the way to the hospital, Felix Celmar asked
Romeo what happened to him and the latter answered

that he was shot by accused-appellant. (pp. 4-8, July
29, 1996, TSN) Romeo was brought to the emergency
room and underwent operation. He however died at
about 5:00 p.m. of October 2, 1992, due to septic shock
irreversible, generalized peritonitis, gunshot wound,
perforating ileum. (pp. 7 & 11, June 18, 1996, TSN)[5]
The defense presented four witnesses, namely:
Rogelio Espina, Dr. Harold B. Gallego, Maximiano Dormal
and accused-appellant himself.
The testimonies of accused-appellant and
Maximiano Dormal may be summarized as follows:
At around 1:00 oclock in the afternoon of
September 30, 1992, accused-appellant was in the house
of Eufronia Pagas to represent his father in a meeting to
prepare for a wedding celebration.Among those present
in the said gathering were accused-appellants brother,
Rogelio Espina, and the deceased, Romeo Bulicatin who
were having a drinking spree. When accused-appellant
arrived thereat, Bulicatin asked him to buy 3 bottles of
kulafu wine to which he acceded. At around 4:00 oclock
of the same afternoon, Bulicatin again demanded another
bottle of kulafu wine from accused-appellant. The latter,
however, refused to obey, prompting Bulicatin to urinate
on accused-appellant. This infuriated accused-appellant,
but instead of assaulting Bulicatin, he turned his back and
walked away because he knew that Bulicatin always
carried a knife. When accused-appellant was about 12
meters away from the house of Eufronia Pagas, Bulicatin
pursued him.Accused-appellant tried to evade Bulicatin
but the latter caught up with him and stabbed him on his
side. Consequently, accused-appellant sustained a deep
punctured wound but was fortunately able to escape until
he passed out.[6]
At around 6:00 oclock p.m. of the same day,
Maximiano Dormal who was then on his way home, saw
accused-appellant wounded and lying on the
ground. Recognizing the latter, Dormal immediately
informed and accompanied accused-appellants parents
who lost no time in bringing him to the hospital.[7]
On the other hand, defense witness Rogelio Espina
(Rogelio), declared that in the afternoon of September
ARTICLE 13 OF THE RPC
30, 1992, he was in the house of Eufronia Pagas, having
a drinking spree with Romeo Bulicatin and Samson
Abuloc, while his brother, herein accused-appellant, was
playing cards. At around 3:00 oclock p.m., he saw
Bulicatin approach accused-appellant and forthwith
urinated on him. Thereafter, Bulicatin grabbed accused-
appellant under his arms but the latter was able to
extricate himself from the hold of Bulicatin and ran
away. Rogelio wanted to follow accused-appellant but
was prevailed upon by Bulicatin to stay. They then
continued their drinking spree until 9:00 oclock
p.m. When they were about to go home, Rogelio heard
somebody calling Bulicatin, saying - Get out, Borgs, as I
have something to tell you. According to Rogelio, he is
certain that the voice was not that of accused-
appellant. When they decided to go home, he was the
first one to go downstairs, followed by Samson Abuloc,
and then by Bulicatin. Upon reaching the ground, Rogelio
heard a gunshot and immediately scampered away
without looking back to see who was shot. He claimed
that it was only two days after the incident that he came
to know who the victim of the shooting incident was. He
added that from the house of Eufronia Pagas, he directly
went home where he was told by his mother that
accused-appellant was stabbed and was brought to the
hospital.
On August 25, 1997, the trial court rendered the
assailed decision, holding as follows:
WHEREFORE, Premises Considered, the Court finds the
accused, Romeo Espina, guilty beyond reasonable
doubt, for the crime of Murder defined and penalized by
Article 248 of the Revised Penal Code and Qualified
Illegal Possession of Firearms under Presidential Decree
No. 1866, as amended by Republic Act No. 8294 and
sentences him to suffer the straight penalty
ofimprisonment of RECLUSION PERPETUA with the
inherent accessory penalties provided by law, there
being a mitigating circumstance of vindication for a
grave offense committed on the accused; to indemnify
the heirs of the deceased, Romeo Bulicatin, in the
amount of Fifty Thousand (P50,000.00) Pesos; and to
pay the costs.
Page |7
RULING
In convicting accused-appellant, the trial court
appreciated the special aggravating circumstance of use
of unlicensed firearm, pursuant to P.D. No. 1866, as
amended by R.A. No. 8294.Considering the penalty
provided for in Article 248 of the Revised Penal Code, as
amended by R.A. No. 7659, the trial court imposed the
penalty of death on accused-appellant. However, in view
of the suspension of the imposition of the death penalty
then, accused-appellant was sentenced to suffer the
penalty of reclusion perpetua.
The third paragraph, Section 1, of R.A. No. 8294
(which took effect on July 6, 1997), amending P.D. No.
1866, provides that If homicide or murder is committed
with the use of an unlicensed firearm, such use of an
unlicensed firearm shall be used as an aggravating
circumstance. This amendment, however, cannot be
applied in the present case. It bears stressing that when
the offenses at bar were perpetrated on September 30,
1992, the unlicensed firearm used in taking the life of
another was not yet a special aggravating circumstance
in murder or homicide. Not being favorable to the
accused, the amendatory provision cannot be applied to
accused-appellant, lest it acquires the character of an ex
post facto law.[22]
Likewise, the trial court erred in
treating alevosia merely as a generic aggravating
circumstance, moreso in offsetting the same by the
generic mitigating circumstance of having committed the
crime in immediate vindication of a grave offense. The
treachery employed by accused-appellant in shooting the
victim is actually a circumstance that qualified the killing
to murder. Such being the case, treachery cannot be
offset by a mitigating circumstance.
The trial court correctly appreciated the mitigating
circumstance of having acted in immediate vindication of
a grave offense. As the evidence on record show,
accused-appellant was urinated on by the victim in front
of the guests. The act of the victim, which undoubtedly
insulted and humiliated accused-appellant, came within
the purview of a grave offense under Article 13,
paragraph 5, of the Revised Penal Code. Thus, this

mitigating circumstance should be appreciated in favor of
accused-appellant.
As to the imposable penalty, the applicable
provision is Article 248 of the Revised Penal Code before
its amendment by R.A. No. 7659 on December 31, 1993,
the crime having been committed on September 30,
1992. Thereunder, the penalty for murder was reclusion
temporal in its maximum period to death. With one
generic mitigating circumstance and no aggravating
circumstance to offset it, the penalty should be imposed
in its minimum period, i.e., reclusion
temporal maximum. Applying the Indeterminate
Sentence Law, accused-appellant should be sentenced to
an indeterminate penalty of eight (8) years and one (1)
day of prision mayor, as minimum, to seventeen (17)
years, four (4) months, and one (1) day of reclusion
temporal, as maximum.
WHEREFORE, the Decision of the Regional Trial
Court of Tagbilaran, Branch 47, in Criminal Case Nos.
8194 and 8195 finding the accused-appellant Romeo
Espina guilty beyond reasonable doubt of the crime of
murder, is AFFIRMED with MODIFICATION that the
accused-appellant is hereby sentenced to suffer the
indeterminate penalty of eight (8) years and one (1) day
of prision mayor, as minimum, to seventeen (17) years,
four (4) months and one (1) day of reclusion temporal,
as maximum; and to pay the heirs of Romeo Bulicatin the
sum of P50,000.00 as death indemnity and to pay the
costs.
EN BANC
G.R. No. L-45100 October 26, 1936
THE PEOPLE OF THE PHILIPPINE
ISLANDS, plaintiff-appellee,
vs.
EPIFANIO DIOKNO and ROMAN
DIOKNO, defendants-appellants.
ARTICLE 13 OF THE RPC
Ramon Diokno and Gabriel N. Trinidad for
appellants.
Office of the Solicitor-General Hilado for
appellee.
VILLA-REAL, J.:
Epifanio Diokno and Roman Diokno appeal to
this court from the judgment of the Court of
First Instance of Laguna, the dispositive part of
which reads as follows:
In view of the foregoing considerations,
the court finds the accused Epifanio
Diokno and Roman Diokno guilty of the
crime of murder, beyond a reasonable
doubt, and sentences each of them
to reclusion perpetua, to indemnify
jointly and severally the heirs of the
deceased in the sum of P1,000 and to
pay the costs of the suit. It is so
ordered.
In support of their appeal, the appellants assign
the following alleged errors as committed by the
court a quo in its judgment in question, to wit:
1. The lower court erred in accepting
Exhibit E as evidence.
2. The lower court erred in admitting
Exhibit K as evidence.
3. The lower court erred in not
acquitting the appellant Roman.
Page |8
4. The lower court erred in sentencing
the appellant Epifanio to reclusion
perpetua.
The following facts have been proven beyond a
reasonable doubt during the trial:
The deceased Yu Hiong was a vendor of sundry
goods in Lucena, Tayabas. At about 7 o'clock in
the morning of January 4, 1935, Salome Diokno,
to whom Yu Hiong was engaged for about a
year, invited the latter to go with her. Yu Hiong
accepted the invitation but he told Salome that
her father was angry with him. Salome
answered him: "No matter, I will be
responsible." At about 6 o'clock in the afternoon
of said day, Yu Hiong and Salome Diokno took
an automobile and went to the house of Vicente
Verina, Salome's cousin, in Pagbilao. As they
found nobody in the house, they went on their
way up to San Pablo, Laguna. On January 5th or
6th of said year, Roman Diokno telegraphed his
father Epifanio Diokno, who was in Manila,
informing him that Salome had eloped with the
Chinese Yu Hiong. On the morning of January 7,
1935, Epifanio Diokno and Roman Diokno went
to San Pablo, Laguna, in search of the elopers.
Having been informed that the latter were
stopping at the house of Antonio Layco, they
went there. Upon arriving near the house, they
saw Yu Hiong coming down the stairs. When Yu
Hiong saw them, he ran upstairs and they
pursued him. As the Chinese found the door of
the house locked, he shouted that it be opened
for him. At that moment, he was overtaken by
the accused who carried knives locally known
as balisong, of different sizes. Yu Hiong fell on
his knees and implored pardon. In that situation

Roman Diokno stabbed him with the knife in the
back and later in the left side. Epifanio Diokno
also stabbed him once. Yu Hiong fell on the
landing of the stairs in the balcony, and there
he was again stabbed repeatedly. Then Roman
Diokno said: "Enough, father." Yu Hiong lost
consciousness. Juan Alcantara, who lived on the
same street, Hermanos Belen, in front of
Antonio Layco's house, saw the accused pursue
Yu Hiong and fired shots for the police to come.
Upon hearing the shots, municipal policeman
Francisco Curabo appeared and found Yu Hiong
pale and lying on the landing of the stairs. He
then asked who had wounded the Chinese and
the accused Epifanio Diokno answered that it
was he. The policeman took the knife (Exhibit
C) which Epifanio Diokno carried in his right
hand and brought him to police headquarters.
Roman Diokno had left before the policeman
arrived and he was not located until after three
days. The municipal president of San Pablo,
Laguna, also went to the scene of the crime,
found the Chinese almost unconscious and
questioned him, putting down his answers in
Exhibit E. The Chinese was brought to the
provincial hospital of San Pablo where he was
examined by Drs. David Evangelista and Manuel
Quisumbing, who found that he had five incised
wounds in different parts of the body, one of
them at the back and about three and a half
inches long, piercing the pleura and penetrating
the lower lobe of the right lung about an inch,
which wound was necessarily mortal and which
caused the death of the victim. On January 8,
1935, while the said Chinese was in a serious
condition in the hospital, he made a statement
telling how he was attacked by the accused
(Exhibit K).
ARTICLE 13 OF THE RPC
The accused, testifying as witnesses in their
own behalf, stated that they had not gone to
San Pablo together on the day in question; that
when Roman Diokno arrived, his father Epifanio
Diokno was coming down the stairs of Antonio
Layco's house with a knife in his hand; that
Epifanio Diokno told his son Roman to go home
and tell their relatives what had happened; that
when Epifanio Diokno overtook Yu Hiong on the
landing of the stairs of Antonio Layco's house,
he asked Yu Hiong whether he was willing to
marry his daughter; that the Chinese answered
him in the negative and at the same time tried
to take something from his pocket; that as
Epifanio knew that Yu Hiong carried a revolver,
he feared the Chinese might harm him; he
became obfuscated, drew his knife and knew
not what happened afterwards.
The first question to be decided in the present
appeal is whether or not the court a quo erred
in admitting as evidence Exhibit E, consisting in
the investigation conducted by the municipal
president of San Pablo in the same place where
Yu Hiong had fallen a few minutes before, at
about 1.30 p. m. on January 7, 1935, and
wherein Yu Hiong, answering the questions
asked by said municipal president, stated that it
was Ramon Diokno and Epifanio Diokno who
had wounded him.
RULING
The presence of the fifth mitigating
circumstance of article 13 of the Revised Penal
Code, that is, immediate vindication of a grave
offense to said accused, may be taken into
consideration in favor of the two accused,
Page |9
because although the elopement took place on
January 4, 1935, and the aggression on the 7th
of said month and year, the offense did not
cease while Salome's whereabouts remained
unknown and her marriage to the deceased
unlegalized. Therefore, there was no
interruption from the time the offense was
committed to the vindication thereof. Our
opinion on this point is based on the fact that
the herein accused belong to a family of old
customs to whom the elopement of a daughter
with a man constitutes a grave offense to their
honor and causes disturbance of the peace and
tranquility of the home and at the same time
spreads uneasiness and anxiety in the minds of
the members thereof.
The presence of the sixth mitigating
circumstance of said article 13, consisting in
having acted upon an impulse so powerful as
naturally to have produced passion or
ofuscation, may also be taken into consideration
in favor of the accused. The fact that the
accused saw the deceased run upstairs when he
became aware of their presence, as if he
refused to deal with them after having gravely
offended them, was certainly a stimulus strong
enough to produce in their mind a fit of passion
which blinded them and led them to commit the
crime with which they are charged, as held by
the Supreme Court of Spain in similar cases in
its decisions of February 3, 1888, July 9, 1898,
February 8, 1908, May 25, 1910, July 3, 1909,
and in other more recent ones.
The seventh circumstance of article 13 of the
Revised Penal Code, consisting in having
surrendered himself immediately to the agents

of persons in authority, should also be taken
into consideration in favor of the accused
Epifanio Diokno.
In view of the foregoing considerations, this
court concludes that the accused are guilty
beyond a reasonable doubt of the crime of
homicide defined and punished in article 249 of
the Revised Penal Code, the penalty prescribed
therein being reclusion temporal in its full
extent. Three mitigating circumstances must be
taken into consideration in favor of the accused
Epifanio Diokno and two in favor of the accused
Roman Diokno, with no aggravating
circumstance, thus authorizing the imposition of
the penalty next lower to that prescribed by law
(reclusion temporal in its full extent), or prision
mayor in its full extent, in the period that this
court deems applicable, which is the medium
period in this case, in accordance with the
provisions of article 64, rule 5, that is eight
years and one day of prision mayor.
Both accused should be granted the benefits of
the indeterminate sentence provided in Act No.
4103, as amended by Act No. 4225, which
prescribes a penalty the minimum of which shall
be taken from that next lower to prision mayor,
or prision correccional of from six months and
one day to six years. Taking into account the
circumstances of the case, the indeterminate
penalty to which each of said accused must be
sentenced is fixed at from two years and one
day of prision correccional to eight years and
one day of prision mayor, crediting each with
one-half of the time during which they have
undergone preventive imprisonment (art. 29,
Revised Penal Code).
ARTICLE 13 OF THE RPC
Wherefore, this court declares the accused
Epifanio Diokno and Roman Diokno guilty of the
crime of homicide and sentences each of them
to an indeterminate penalty from two years and
one day of prision correccional to eight years
and one day of prision mayor, crediting them
with one-half of the time during which they
have undergone preventive imprisonment, and
to indemnify the heirs of the deceased in the
sum of P1,000, with the costs of both instances.
So ordered.
EN BANC
G.R. No. L-12883 November 26, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
CLEMENTE AMPAR, defendant-appellant.
Filemon A. Cosio for appellant.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
A fiesta was in progress in the barrio of Magbaboy,
municipality of San Carlos, Province of Occidental
Negros. Roast pig was being served. The accused
Clemente Ampar, a man of three score and ten,
proceeded to the kitchen and asked Modesto Patobo for
some of the delicacy. Patobo's answer was; "There is no
more. Come here and I will make roast pig of you." The
effect of this on the accused as explained by him in his
confession was, "Why was he doing like that, I am not a
child." With this as the provocation, a little later while
the said Modesto Patobo was squatting down, the
accused came up behind him and struck him on the
head with an ax, causing death the following day.
P a g e | 10
As the case turns entirely on the credibility of witnesses,
we should of course not interfere with the findings of
the trial court. In ascertaining the penalty, the court,
naturally, took into consideration the qualifying
circumstance of alevosia. The court, however, gave the
accused the benefit of a mitigating circumstance which
on cursory examination would not appear to be justified.
This mitigating circumstance was that the act was
committed in the immediate vindication of a grave
offense to the one committing the felony.
The authorities give us little assistance in arriving at a
conclusion as to whether this circumstance was rightly
applied. That there was immediate vindication of
whatever one may term the remarks of Patobo to the
accused is admitted. Whether these remarks can
properly be classed as "a grave offense" is more
uncertain. The Supreme court of Spain has held the
words "gato que arañaba a todo el mundo,"
"landrones," and "era tonto, como toda su familia" as
not sufficient to justify a finding of this mitigating
circumstance. (Decisions of January 4, 1876; May 17,
1877; May 13, 1886.) But the same court has held the
words "tan landron eres tu como tu padre" to be a
grave offense. (Decision of October 22, 1894.) We
consider that these authorities hardly put the facts of
the present case in the proper light. The offense which
the defendant was endeavoring to vindicate would to
the average person be considered as a mere trifle. But
to this defendant, an old man, it evidently was a serious
matter to be made the butt of a joke in the presence of
so many guests. Hence, it is believed that the lower
court very properly gave defendant the benefit of a
mitigating circumstance, and correctly sentenced him to
the minimum degree of the penalty provided for the
crime of murder. lawph!1.net
Judgment of the trial court sentencing the defendant
and appellant to seventeen years four months and one
day of cadena temporal, with the accessory penalties
provided by law, to indemnify the heirs of the deceased,
Modesto Patobo, in the amount of one thousand pesos,
and to pay the costs is affirmed, with the costs of this
instance against the appellant. So ordered.

Arellano, C.J., Torres, and Araullo, JJ., concur.
Johnson, J., concurs in the result.
Street, J., did not sign.
SECOND DIVISION
G.R. No. 96444 June 23, 1992
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
He was likewise charged with the crime of Frustrated
vs.
Homicide in an Information which reads as follows:
LEANDRO PAJARES y FLORENTINO, accused-
appellant.
PARAS, J.:
This is an appeal from the decision * of the Regional
Trial Court, NCJR, Branch VIII, Manila dated October 25,
1990 in Criminal Case No. 85-40579 entitled "People of
the Philippines v. Leandro Pajares y Florentino"
convicting herein appellant Pajares of the crime of
Murder.
Herein appellant was charged with the aforementioned
crime in an Information which reads as follows:
That on or about the 11th day of
October, 1985, at night time,
purposely sought to insure and better
accomplish his criminal design, in the
City of Manila. Philippines, the said
accused, conspiring and confederating
together with five (5) others whose
true names, real Identities, and
present whereabouts are still
unknown and helping one another,
did then and there willfully, unlawfully
and feloniously, with intent to kill,
evident premeditation, and treachery,
attack, assault. and use personal
violence upon one DIOSDADO VIOJAN
Y SABAYAN, by then and there
mauling him and hitting him with a
baseball bat at the back of the head,
ARTICLE 13 OF THE RPC
a vital part of the body, thereby
inflicting upon the said DIOSDADO
VIOJAN Y SABAYAN a club wound on
the head which was the direct and
immediate cause of his death.
Contrary to law. (Original Records of
Criminal Case No, 85-40579, p. 1)
That on or about the 11th day of
October, 1985, at night time,
purposely sought to insure and better
accomplish his criminal design, in the
City of Manila, Philippines, the said
accused, conspiring and confederating
together with five (5) others whose
true names, real identities, and
present whereabouts are still
unknown, and helping one another,
with intent to kill, did then and there
willfully, unlawfully and feloniously
attack, assault and use personal
violence upon one RENATO PEREZ Y
RUIDERA, by mauling and hitting him
with a baseball bat at the back, a vital
part of the body, thereby inflicting
upon him a club wound at the back
which is necessarily mortal and fatal,
thus performing all the acts of
execution which would have produced
the crime of homicide, as a
consequence, but nevertheless did not
produce it by reason of causes
independent of the will of the
accused, that is, because of the timely
and able medical attendance rendered
upon the said RENATO PEREZ
RUIDERA which prevented his death.
Contrary to law (Original Records of
Criminal Case No. 85-40580, p. 1)
P a g e | 11
Appellant Pajares pleaded not guilty to both charges
(Original Records of Criminal Case No. 85-40579, p. 5;
Original Records of Criminal Case No. 85-40580, p. 8).
Upon the petition of herein appellant that the two (2)
cases be consolidated, a joint trial ensued.
The prosecution presented Renato R. Perez, Cpl.
Benigno Dong, Salud Manguba, Pat. Conrado Bustillos,
Dr. Norman Torres, Dr. Prospero Cabanayan, Rosita
Viojan and Arlene Viojan as witnesses while only
appellant Leandro Pajares took the witness stand for the
defense.
Renato R. Perez, a resident of 1386-K Burgos St., Paco,
Manila, is the same Renato Perez who is the victim in
Criminal Case No. 85-40580 for Frustrated Homicide. He
testified that at about 11:30 p.m. on October 11, 1985,
he and the deceased Diosdado Viojan were on their way
to a store located at Gomez St., Paco, Manila to buy
something. They were walking abreast with each other,
the deceased was at his right side and was a bit ahead
of him, when appellant Pajares suddenly appeared from
behind and hit Viojan with a baseball bat at the back of
his head. The latter ran a short distance and fell down
near the store of one Alex Blas. When Perez tried to
help Viojan. he, too, was attacked by Pajares with the
baseball bat hitting him at the back below the left
shoulder. He then grappled with the appellant for the
possession of the baseball bat but the latter's
companions, namely: Rudy Dokling, Popoy, Inggo and
Lauro Duado mauled him until he lost consciousness. He
was brought to the Philippine General Hospital by
Eugene Panibit and Joselito Perez where he was treated
for the injuries he sustained (TSN, Hearing of January 7,
1986, pp. 4-23). He identified in court the baseball bat
used by Pajares (TSN, Hearing of September 16, 1986,
p. 36).
RULING
Appellant Pajares asserts that the trial court
gravely erred in imposing the penalty of reclusion
perpetua upon him. He avers that such a penalty is
tantamount to a cruel, degrading or inhuman

punishment which is prohibited by the Constitution.
Appellant points out that hours before the clubbing
incident, Roberto Pajares, appellant's younger brother,
was mauled by the group of Diosdado Viojan as cited by
the lower court referring to the entry in the Police
Blotter and the sworn statement of Roberto Pajares.
The mauling of the latter is a big insult and truly
offending to the appellant and his family. Hence, the
clubbing of Diosdado Viojan by herein appellant was a
vindication of the grave offense committed against his
family. a mitigating circumstance under paragraph 5 of
Article 13 of the Revised Penal Code. Considering
further that the appellant was just nineteen (19) years
old at the time he committed the offense the penalty
imposed by the court a quo should have been seventeen
(17) years, four (4) months and one (1) day (Brief for
the Appellant, Rollo, pp. 52-58).
The appeal is devoid of merit.
In convicting herein appellant of the crime of murder,
qualified by treachery, the trial court relied heavily on
the testimony of prosecution witness Renato Perez
which it found to be credible. According to the lower
court, the latter "gave his account on what was done to
them by the accused and his companions in a simple,
candid, straightforward manner" (RTC Decision. Rollo, p.
36).
It is doctrinally entrenched that the evaluation of the
testimony of witnesses by the trial court is received on
appeal with the highest respect because it is the trial
court that has the opportunity to observe them on the
stand and detect if they are telling the truth or lying in
their teeth (People v. Santito, Jr., G.R. No. 91628,
August 22, 1991 [201 SCRA 87]). The appellate court
can only read in cold print the testimony of the
witnesses which commonly is translated from the local
dialect into English. In the process of converting into
written form the statement of living human beings, not
only fine nuances but a world of meaning apparent to
the judge present, watching and listening, may escape
the reader of the written translated words (People v.
ARTICLE 13 OF THE RPC
Arroyo, G.R. No. 99258, September 13, 1991 [201 SCRA
616]).
Appellant's sole defense is alibi. According to him, he
was inside the store of Alex Blas, watching television,
when the incident occurred, Alex Blas even advised him
to go home so as not to be involved in the incident.
However, the latter was not presented to corroborate
appellant's testimony. Alibi is the weakest defense an
accused can concoct. In order to prosper, it must be so
convincing as to preclude any doubt that the accused
could have been physically present at the place of the
crime or its vicinity at the time of the commission
(People v. Lacao, Sr., G.R. No. 94320, September 4.
1991 (201 SCRA 317]). In the case at bar, appellant was
within the vicinity of the scene of the crime at the time
of its commission.
Furthermore, appellant was Positively identified by
Renato Perez as the perpetrator of the crime. In the
face of the clear and positive testimony of the
prosecution witness regarding the participation of the
accused in the crime, the accused's alibi dwindles into
nothingness. The Positive identification of the accused
by the witness as the perpetrator of the crime cannot be
overcome by the mere denial of the accused. Such
positive identification of the accused that he killed the
victim establishes the guilt of the accused beyond moral
certainty (People v Arroyo, supra).
The trial court correctly ruled that the crime was
attended by treachery. There is treachery, the law says,
when the offender adopts means, methods or forms in
the execution of the felony which ensure its commission
without risk to himself arising from the defense which
the offended party might make (People v. Cuyo, G.R.
No. 76211, April 30, 1991 [196 SCRA 447]). As found by
the trial court, appellant Pajares hit Diosdado Viojan
with a baseball bat from behind without any warning
thereby precluding any possible retaliation from the
victim.
Having established the guilt of herein appellant. the next
question is whether or not the mitigating circumstance
P a g e | 12
of immediate vindication of a grave offense can be
appreciated in his favor. While it may be true that
appellant's brother Roberto Pajares was mauled by the
companions of the deceased at about 11:30 a.m. of
October 11, 1985 as show in the entry in the Police
Blotter (Exhibits "A" to "A-3", Original Records of
Criminal Case No. 85-40579. pp. 30-33) and by
appellant's brother himself (Exhibits "G", "Q" and "A"
Nos. 7-9, Ibid., p. 219), it must be emphasized that
there is a lapse of about ten (10) hours between said
incident and the killing of Diosdado Viojan. Such interval
of time was more than sufficient to enable appellant to
recover his serenity (People v. Benito, G.R. No. L-32042,
December 17, 1976 [74 SCRA 271]). Hence, the
mitigating circumstance of immediate vindication of a
grave offense cannot be appreciated in his favor.
IN VIEW OF THE FOREGOING, the decision appealed
from is AFFIRMED with modification that the indemnity
is increased to P50,000.00 in accordance with the policy
of this Court on the matter.
SO ORDERED.
FIRST DIVISION
[G.R. No. 131839. January 30, 2002]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. ARANDE COLINA ADLAWAN @
RANDIE, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
This is an appeal from the June 23, 1997
Decision[1] of the Regional Trial Court of Mandaue City,
Branch 28, in Criminal Case No. DU-3463, convicting

accused-appellant of the crime of Murder and sentencing
him to suffer the indeterminate penalty of ten (10) years
and one (1) day of prision mayor, as minimum, to
seventeen (17) years and one (1) day of reclusion
temporal, as maximum; and to pay the heirs of the
deceased the sum of P50,000.00 as death indemnity,
P18,850.00 as actual damages and the costs.
The Information against accused-appellant reads:
That on or about the 15th day of November, 1992, in
the City of Mandaue, Philippines, and within the
jurisdiction of this Honorable Court, the aforenamed
accused, with deliberate intent to kill, treachery and
evident premeditation, did then and there wilfully,
unlawfully and feloniously attack, assault, and shot
Nequito Ortizano with a revolver, thereby inflicting upon
the latter mortal wound at his vital portion which caused
his death soon thereafter.
CONTRARY TO LAW.[2]
Upon arraignment on March 31, 1997, accused-
appellant pleaded not guilty.[3] Thereafter, trial ensued.
The prosecutions account of the antecedent facts
are as follows: At dawn of November 15, 1992, the
deceased, together with prosecution witnesses Benjamin
Basubas and Quirino Cinco, and a certain Oliver Bonayan,
were inside a fenced disco area in Sitio Oril, Mandaue
City. At 2:00 a.m., Benjamin Basubas and Quirino Cinco
were alerted by a commotion outside. When they rushed
out, they saw the deceased raising his hands in front of
accused-appellant, who was then in the company of
Barangay Tanod Jerry Diaz and Jet Bonita. Likewise
present was accused-appellant's father, Barangay Tanod
Crispulo Adlawan, who was lying on the ground
unconscious. Prosecution witnesses Benjamin Basubas
and Quirino Cinco stood approximately one meter away
from the deceased. All of a sudden, accused-appellant
drew a gun from his waist, pointed it at the deceased,
saying, this is the one.[4] He immediately fired the gun,
hitting the deceased on the chest. The latter staggered
toward the direction of Benjamin Basubas. He was able
to hold on to a deaf-mute bystander, but fell on a shallow
ARTICLE 13 OF THE RPC
canal and landed on his belly with his head resting on the
bank of the canal. Accused-appellant followed the
deceased, turned the latters head and delivered a fatal
shot hitting him above the right ear. Thereafter, accused-
appellant surrendered the gun to a group of Barangay
Tanod.[5]
The Necropsy Report shows the postmortem
findings and the cause of death of the victim, thus:
II. Pertinent Findings:
1. Gunshot Wound, Entrance, 0.5 cm. x 0.5 cm., located
at the left parietal region 4 cm. above the right ear. The
entrance wound has an inverted periphery. The bullet
slug went thru the brain tissues and pierced thru the
right parietal bone, where the slug was embedded and
extracted at the scalp of the right parietal region.
2. Gunshot Wound, Entrance, 0.5 cm., located at the
left supraclavicular at the medial part, with inverted
periphery and contusion, collar. The bullet slug went
downward and backwards hitting the upper lobes of the
left and right lungs and exited thru the inferior border of
the right scapula. The exit wound measures 1 cm. x 1
cm. with irregular everted edges.
Gunshot Wounds Number 1 and 2 resulted to a massive
hemorrhage of the brain, the left and right lungs.
III. Cause of Death:
SHOCK, IRREVERSIBLE. Secondary to Massive
Hemorrhage due to Multiple Gun Shot Wounds.[6]
On the other hand, the defense averred that at
around 2:00 in the morning of November 15, 1992, while
accused-appellant was inside a fenced disco area in Sitio
Oril, Mandaue City, he heard somebody shouting and
when he turned to the source of the disturbance, he saw
his father, lying on the ground unconscious and with a
bloodied face.Accused-appellant dashed to his father
whom he thought was already dead. As he tried to lift
P a g e | 13
him, he saw the deceased about 2 1/2 arms length away,
holding a gun and told him, Do you want to follow your
father?[7] Thereafter, accused-appellant lunged at the
deceased, twisted his hand, forcing the muzzle of the gun
to be pointed at the deceaseds chest. Suddenly, the gun
went off, causing the deceased to fall in a canal. Accused-
appellant was able to get hold of the gun and again fired
at the deceased. Thereafter, he fled and hid in
Manila[8] until January 23, 1997, when he finally decided
to surrender to Mayor Alfredo M. Ouano and P/Supt.
Rolando Borres.[9]
After trial, the court a quo rendered the assailed
decision, the dispositive portion of which reads:
WHEREFORE, finding the herein accused ARANDE
COLINA ADLAWAN @ RANDIE guilty beyond reasonable
doubt for the crime of Murder, the said accused is
hereby sentenced to undergo the indeterminate penalty
by imprisonment of TEN (10) YEARS and ONE (1) DAY
of prision mayor as minimum to SEVENTEEN (17)
YEARS and ONE (1) DAY of reclusion temporal as
maximum, with the accessories of the law, to indemnify
the legal heirs of Nequito Ortizano the amount of Fifty
Thousand (P50,000.00) Pesos by reason of his death,
P18,850.00 as actual damages, and to pay the costs.
The accused, being a detention prisoner, shall be
credited in the service of his sentence full time during
which he has undergone preventive imprisonment.
SO ORDERED.[10]
Hence, the instant appeal. Accused-appellant
contends that:
RULING
The appeal has no merit.
The task of assessing the conflicting versions of the
defense and the prosecution is a matter best determined
by the trial court who had the untrammeled opportunity to
observe the witnesses demeanor and deportment on the
witness stand, and therefore could better discern if such
witnesses were telling the truth or not. Hence, unless the

trial judge plainly overlooked certain facts of substance
and value which, if considered, might affect the result of
the case, his assessment on credibility of witnesses must
be respected.[12]
Likewise, the trial court correctly appreciated the
qualifying circumstance of treachery. The essence of
treachery is the sudden and unexpected attack, depriving
the victim of any real chance to defend himself, thereby
ensuring its commission without risk to the
aggressor.[13] At the time accused-appellant fired the first
shot, the deceased was unarmed and had his hands
raised. The deceased was therefore in no position to put
up any defense such as would present a risk to accused-
appellant. Moreover, the second shot fired by accused-
appellant clearly foreclosed any doubt as to the
attendance of treachery. When he turned the head of the
deceased before he fired the second shot, accused-
appellant was manifestly determined to have a better shot
at the head of the deceased who was already lying
helpless on the ground.
The privileged mitigating circumstance of
incomplete self-defense cannot be appreciated in favor of
accused-appellant. Unlawful aggression is a
condition sine qua non for self-defense, whether
complete or incomplete.[14] From the version of the
prosecution, which the Court finds credible, the deceased
did not commit any unlawful aggression towards
accused-appellant. On the contrary, it was accused-
appellant who was the aggressor when he shot the
deceased who was unarmed and raising his hands.
In the same vein, the circumstance of incomplete
defense of a relative is unavailing. It is settled that a
person making a defense has no more right to attack an
aggressor when the unlawful aggression has
ceased.[15] In the instant case, accused-appellant was not
justified in attacking the deceased as the latter had his
hands raised and was no longer poised to attack
accused-appellant's father at the time he was shot.
Furthermore, the acts of the deceased immediately
prior to the shooting did not constitute unlawful
aggression. Unlawful aggression requires an actual,
sudden and unexpected attack, or imminent danger
thereof, and not merely a threatening or intimidating
attitude. It must be such as to put in real peril the life of
the person defending himself and not a mere imagined
ARTICLE 13 OF THE RPC
threat.[16] In his direct testimony, accused-appellant did
not categorically declare that the deceased was aiming
the gun at him, or about to shoot him. Right after he
allegedly heard the deceaseds remark, Do you want to
follow your father, he immediately lunged at him, twisted
the gun toward his chest and fired.Clearly, therefore,
there was no real peril to the life of accused-appellant.
In People v. Escoto,[17] we held that the mere
apprehension that the supposed aggressor would shoot
the person invoking self-defense is not justified. Failing to
discharge the burden of proving unlawful aggression,
accused-appellant's claim of incomplete self-defense
cannot prosper.
The trial court, however, erred in appreciating the
mitigating circumstance of voluntary surrender in favor of
accused-appellant. To be considered a mitigating
circumstance, voluntary surrender must be
spontaneous. The conduct of the accused, and not his
intention alone, after the commission of the offense,
determines the spontaneity of the surrender. In People v.
Mabuyo,[18] we held that the surrender is not spontaneous
where it took the accused almost nine months from the
issuance of the warrant of arrest against him before he
presented himself to the police authorities. With more
reason then that we should not appreciate the mitigating
circumstance of voluntary surrender in the case at bar
since it took accused-appellant more than three years
from the issuance of the warrant of arrest on September
23, 1993 before he finally decided to surrender on
January 23, 1997.
Nevertheless, the mitigating circumstance of
passion or obfuscation should be appreciated to mitigate
accused-appellant's criminal liability. The requisites of
this mitigating circumstance are: (1) that there be an act,
both unlawful and sufficient to produce such a condition
of mind; and (2) said act which produced the obfuscation
was not far removed from the commission of the crime by
a considerable length of time, during which the
perpetrator might recover his normal equanimity.[19]
In the case at bar, accused-appellant thought his
father whose face was bloodied and lying unconscious on
the ground was dead. Surely, such a scenario is sufficient
to trigger an uncontrollable burst of legitimate
passion. His act, therefore, of shooting the deceased,
right after learning that the latter was the one who harmed
P a g e | 14
his father, satisfies the requisite of the mitigating
circumstance of passion or obfuscation under Paragraph
6, Article 13 of the Revised Penal Code.
The penalty for Murder at the time of the
commission of the offense is Reclusion Temporal in its
maximum period to Death. There being one mitigating
circumstance of passion or obfuscation, and no
aggravating circumstance to offset it, the penalty shall be
imposed in its minimum period, i.e., Reclusion
Temporal maximum. Applying the Indeterminate
Sentence Law, the maximum sentence shall be reclusion
temporal in its maximum period and the minimum shall be
taken from the next lower penalty, which is prision
mayor maximum to reclusion temporal medium. Hence,
accused-appellant should be meted the penalty of ten
(10) years and one (1) day of prision mayor as minimum
to seventeen (17) years, four (4) months, and one (1) day
of reclusion temporal as maximum.
As to accused-appellant's civil liability, we agree
with the accused-appellant that the award of P18,850.00
as actual damages to the heirs of the deceased lacks
basis. In lieu of actual damages, the heirs of the
deceased are entitled to temperate damages in the
amount of P10,000.00. Temperate damages are
awarded where pecuniary loss is proved but not the
amount thereof.[20]
Moral Damages in the amount of P50,000.00 should
likewise be awarded for the emotional suffering of the
deceased's heirs.[21]
The wife of the deceased testified that her husband,
a 29-year old driver and spray man at the time of his
death, was earning P100.00 daily.[22] Using the American
Expectancy Table of Mortality,[23] the loss of his earning
capacity should be computed as follows:
 P a g e | 15

ARTICLE 13 OF THE RPC