G.R. No.
150723 July 11, 2006 The prosecution presented six witnesses: (1) Faustino Delariarte ("Delariarte"); (2) SPO1
RAMONITO MANABAN, petitioner,
vs.
COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for review1 of the Decision2 dated 21 May 2001 and the Resolution3 dated 8
November 2001 of the Court of Appeals in CA-G.R. CR No. 23790. In its 21 May 2001
Decision, the Court of Appeals affirmed the Decision of the Regional Trial Court of Quezon
City, Branch 219 ("trial court"), finding Ramonito Manaban ("Manaban") guilty of the crime of
homicide. In its 8 November 2001 Resolution, the Court of Appeals modified its Decision by
reducing the award for loss of earning capacity.
The Facts
The facts as narrated by the trial court are as follows:
On October 11, 1996, at around 1:25 oclock in the morning, Joselito Bautista, a father
and a member of the UP Police Force, took his daughter, Frinzi, who complained of
difficulty in breathing, to the UP Health Center. There, the doctors prescribed certain
medicines to be purchased. Needing money therefore, Joselito Bautista, who had
taken alcoholic drinks earlier, proceeded to the BPI Kalayaan Branch to withdraw
some money from its Automated Teller Machine (ATM).
Upon arrival at the bank, Bautista proceeded to the ATM booth but because he could
not effectively withdraw money, he started kicking and pounding on the machine. For
said reason, the bank security guard, Ramonito Manaban, approached and asked him
what the problem was. Bautista complained that his ATM was retrieved by the
machine and that no money came out of it. After Manaban had checked the receipt,
he informed Bautista that the Personal Identification Number (PIN) entered was
wrong and advised him to just return the next morning. This angered Bautista all the
more and resumed pounding on the machine. Manaban then urged him to calm down
and referred him to their customer service over the phone. Still not mollified, Bautista
continued raging and striking the machine. When Manaban could no longer pacify
him, he fired a warning shot. That diverted the attention of Bautista. Instead of venting
his ire against the machine, he confronted Manaban. After some exchange of words,
a shot rang out fatally hitting Bautista.4
On 24 October 1996, Manaban was charged with the crime of murder. The Information states:
That on or about the 11th day of October 1996, in Quezon City, Philippines, the above-
named accused, armed with a gun, and with intent to kill, qualified by treachery, did
then and there wilfully, unlawfully and feloniously attack, assault and employ
personal violence upon the person of one JOSELITO BAUTISTA, by then and there,
shooting him at the back portion of his body, thereby inflicting upon said JOSELITO
BAUTISTA mortal wounds which were the direct and immediate cause of his
untimely death, to the damage and prejudice of the heirs of the said JOSELITO
BAUTISTA.5
When arraigned on 4 December 1996,6 Manaban pleaded not guilty to the offense charged. Trial
then followed.
The Trial
The Prosecutions Version
Dominador Salvador ("SPO1 Salvador"); (3) Rodolfo Bilgera ("Bilgera"); (4) Celedonia H. Tan
("Tan"); (5) Dr. Eduardo T. Vargas ("Dr. Vargas"); and (6) Editha Bautista ("Editha").
Delariarte was a security guard who was employed by the same security agency as Manaban.
Delariarte testified that in the early morning of 11 October 1996, their duty officer, Diosdado
Morga, called him and informed him that one of the guards stationed at the BPI Kalayaan Branch
("BPI Kalayaan") was involved in a shooting incident. When he arrived at the bank, Delariarte
saw Manaban inside the bank using the phone. He also saw Joselito Bautista ("Bautista") lying
on the ground but still alive. He then told their company driver, Virgilio Cancisio ("Cancisio"),
to take Bautista to the hospital but to be careful since there was a gun tucked in Bautistas waist.
Bautista allegedly reeked of alcohol. Delariarte further testified that when Manaban came out
of the bank, Manaban admitted to Delariarte that he shot Bautista.7
SPO1 Salvador was a police investigator assigned at Station 10, Philippine National Police-
Central Police District Command (PNP-CPDC) of Quezon City. SPO1 Salvador testified that
on 11 October 1996, about 2:05 a.m., the duty desk officer SPO2 Redemption Negre sent him,
SPO1 Jerry Abad and SPO1 Ruben Reyes to BPI Kalayaan to investigate an alleged shooting
incident. SPO1 Salvador testified that when they arrived at BPI Kalayaan, they were met by
Delariarte and Cancisio. Manaban then approached them and surrendered his service firearm, a
.38 caliber revolver, to SPO1 Salvador. Manaban allegedly admitted shooting Bautista. SPO1
Salvador and his team investigated the crime scene. According to SPO1 Salvador, he saw
Bautista lying on his back near the Automated Teller Machine ("ATM"). A .38 caliber revolver
inside a locked holster was tucked in Bautistas right waist. SPO1 Salvador noticed that Bautista,
who was still breathing, had been shot in the back. They brought Bautista to the East Avenue
Medical Center where Bautista later died. Thereafter, they proceeded to the police station and
turned over Manaban to their desk officer for proper disposition and investigation. 8
Dr. Vargas, National Bureau of Investigation (NBI) Medico-Legal Officer, conducted an
autopsy on Bautistas cadaver. Dr. Vargas testified that Bautista died of a gunshot wound.
According to him, the point of entry of the bullet was at the back, on the right side of the body
and there was no exit point. He stated that he was able to recover the slug from the left anterior
portion of the victims body and that he later submitted the slug to the NBI Ballistics Division.
Dr. Vargas further stated that the bullet wound was fatal because the bullet hit the right lung and
lacerated parts of the liver, stomach and the pancreas. Based on the location of the gunshot
wound, Dr. Vargas deduced that the assailant must have been behind the victim, on the right
side, when he shot the victim.9 Dr. Vargas also testified that the absence of signs of near-fire
indicates that the distance between the muzzle of the gun and the point of entry was more than
24 inches. During cross-examination, Dr. Vargas testified that he was able to take blood samples
from the victim which, based on the NBI Chemistry Division analysis, tested positive for
alcohol.10 Dr. Vargas issued a certificate of post-mortem examination11 and an autopsy report.12
Bilgera was a ballistician at the Firearms Investigation Division (FID) of the NBI. Bilgera
testified that upon receiving a letter-request dated 11 October 1996 from PNP Police Inspector
Percival Fontanilla, he conducted a ballistic examination on the following specimens submitted
to him:
1. One (1) ARMSCOR 2015, Caliber .38 Revolver, SN-28909 marked "DBS";
2. One (1) ARMSCOR 200, Caliber .38 Revolver, SN-P03471 marked "DBS";
3. One (1) Caliber .38 one badly deformed copper coated lead bullet marked "RM";
4. Two (2) Caliber .38 empty shells marked "RM-1" and "RM-2";
5. One (1) Caliber .38 misfired ammunition marked "RM-3";
6. Nine (9) Caliber .38 ammunition marked "RM-4", "RM-5", "RM-6" and "JB-1" to
"JB-6"; and
1
 7. One (1) Caliber .38 deformed copper coated lead bullet marked "JB". (Re-FID No.
606-14-1096 [N-96-2047]).13
Based on the examination, Bilgera concluded that the bullet which was extracted from Bautistas
body by the medico-legal officer was fired from the ARMSCOR 2015 .38 Caliber revolver with
Serial No. 2890914 and that the empty shells also came from the same gun. Bilgera submitted a
written report15 on the result of his examination.
Editha, the widow of Joselito Bautista, testified that she was married to Bautista on 22 December
1993 in civil rites and that they have four children, the eldest of whom was 13 years old. Editha
stated that her husband, who was a member of the University of the Philippines Police Force
("UP Police Force") since 1985, was receiving a monthly salary of P5,050 at the time of his
death. She narrated that on 11 October 1996, about 1:25 a.m., her husband brought their daughter
Frinzi who had an asthma attack to the UP Health Center where she was confined for three days.
According to Editha, her husband then left to withdraw money at BPI Kalayaan for the purchase
of medicines. Later, she was fetched by members of the UP Police Force who informed her that
her husband had been shot. Editha claimed that as a consequence of her husbands death, she
spent more than P111,00016 for the nine-day wake, embalmment and funeral services.17
The prosecution and the defense agreed to dispense with the testimony of Tan, the Assistant
Manager of BPI Kalayaan. Instead, they just agreed to stipulate that on 11 October 1996, about
7:45 a.m., Tan and BPI Custodian Elma R. Piano retrieved BPI Express Teller Card No. 3085-
2616-21 issued to Bautista which was captured by the ATM because a wrong Personal
Identification Number (PIN) was entered.18
The Defenses Version
The defense presented four witnesses: (1) Manaban; (2) Renz Javelona ("Javelona"); (3) Tan;
and (4) Patrick Peralta ("Peralta").
Manaban, the accused, testified that he was employed by Eagle Star Security Agency as a
security guard and was assigned at BPI Kalayaan. On 10 October 1996, he was on duty from
7:00 p.m. until 7:00 a.m. the following day.
Manaban narrated that on 11 October 1996, about 1:40 a.m., Bautista tried to withdraw money
from the ATM. Manaban then saw Bautista pounding and kicking the ATM. When Manaban
asked Bautista what was the problem, Bautista replied that no money came out from the
machine. According to Manaban, Bautista appeared to be intoxicated.
Manaban looked at the receipt issued to Bautista and saw that the receipt indicated that a wrong
PIN was entered. Manaban informed Bautista that the ATM captured Bautistas ATM card
because he entered the wrong PIN. He then advised Bautista to return the following day when
the staff in charge of servicing the ATM would be around.
Bautista replied that he needed the money very badly and then resumed pounding on the ATM.
Manaban tried to stop Bautista and called by telephone the ATM service personnel to pacify
Bautista. Bautista talked to the ATM service personnel and Manaban heard him shouting
invectives and saw him pounding and kicking the ATM again.
When Manaban failed to pacify Bautista, Manaban fired a warning shot in the air. Bautista then
faced him and told him not to block his way because he needed the money very badly. Bautista
allegedly raised his shirt and showed his gun which was tucked in his waist. Manaban stepped
back and told Bautista not to draw his gun, otherwise he would shoot.
However, Bautista allegedly kept on moving toward Manaban, who again warned Bautista not
to come near him or he would be forced to shoot him. Bautista suddenly turned his back and
was allegedly about to draw his gun. Fearing that he would be shot first, Manaban pulled the
trigger and shot Bautista.
Manaban recounted that he then went inside the bank and called the police and his agency to
report the incident. While he was inside the bank, a fellow security guard arrived and asked
what happened. Manaban answered, "wala yan, lasing."
Later, a mobile patrol car arrived. Manaban related the incident to the police officer and
informed him that Bautista was still alive and had a gun. Manaban then surrendered his service
firearm to the police officer. According to Manaban, he fired his gun twice once in the air as
a warning shot and the second time at Bautista who was about four meters from him. 19
On cross-examination, Manaban further explained that after he fired the warning shot, Bautista
kept coming toward him. Manaban pointed his gun at Bautista and warned him not to come
closer. When Bautista turned his back, Manaban thought Bautista was about to draw his gun
when he placed his right hand on his waist. Fearing for his life, he pulled the trigger and shot
Manaban. According to Manaban, "[n]oong makita ko siya na pabalikwas siya, na sadya
bubunot ng baril, sa takot ko na baka maunahan niya ako at mapatay, doon ko na rin nakalabit
yung gatilyo ng baril." Manaban declared that it did not occur to him to simply disable the victim
for fear that Bautista would shoot him first.20
Javelona was an ATM Service Assistant of BPI. Javelona testified that on 11 October 1996,
between 1:30 a.m. and 2:00 a.m., she received a call from a client at BPI Kalayaan. The client,
who was later identified as Bautista, complained: "Nagwi-withdraw ako dito sa ATM Kalayaan.
Mali daw yung PIN ko, alam ko tama yung PIN ko. Ilang beses ko nang ginamit, mali pa rin.
Kailangan kong mag-withdraw."
Javelona tried to placate Bautista and advised him not to insert his card anymore because it
might be captured by the machine and to try again later in the morning. Bautista allegedly
answered angrily: "Na capture na nga, eh! Tama na nga yung PIN number [sic]. Hindi ako
pwedeng hindi makakuha ng pera. Kailangan kong bumili ng gamot para sa anak ko. Hindi ko
naman kasalanan ito." Javelona replied: "Sir, hindi ho natin makukuha ang card ninyo ngayon
kasi ang makaka-open lang ho ng ATM machine ay ang officer ng Kalayaan Branch. Even if
makuha natin ang card ninyo ngayon, hindi pa ninyo magagamit ngayon. Magagamit lang ninyo
as soon as mag-pa-encode kayo ng PIN number [sic]."
Bautista then reiterated angrily his dire need to withdraw money for the medicine of his
daughter. Javelona apologized to Bautista and informed him that there was really nothing she
could do at that time. She also advised Bautista to go back to the bank at 9:00 a.m. to get his
ATM card and also to withdraw money over the counter. Bautista refused to be pacified and
started cursing so Javelona decided to hang up the phone.21
Tan, the Assistant Manager of BPI Kalayaan, testified that when she reported for work in the
morning of 11 October 1996, she discovered that the ATM was out of order. According to Tan,
the ATM keyboard was not properly mounted and the keys were damaged. Also, the telephone
beside the ATM was hung up. Tan then called Peralta, the technician, to have the ATM repaired.
When Peralta opened the ATM, they found Bautistas ATM card which was captured by the
machine.22
Peralta, a Customer Engineer Specialist, testified that on 11 October 1996, BPI Kalayaan sought
his assistance regarding their ATM. When Peralta arrived at BPI Kalayaan, he talked to Tan and
then proceeded to the ATM to assess the damage. According to Peralta, the ATM keyboard was
damaged and mis-aligned.23
The Trial Courts Ruling
On 14 April 1999, the trial court rendered judgment, the dispositive portion of which reads:
WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of
Homicide, the Court hereby sentences the accused to suffer the penalty of
imprisonment ranging from FOUR (4) YEARS and TWO (2) MONTHS of Prision
Correccional, as minimum, to EIGHT (8) YEARS and ONE (1) DAY of Pris[i]on
2
 Mayor, as maximum; to pay indemnity to the heirs of Joselito Bautista for his death
in the amount of P75,000.00; and actual damages in the amount of P111,324.00 for
the nine-day wake, embalm[ing] and funeral services, and P1,418,040.00 for the loss
of Bautistas earning capacity, the last to be paid by installment at least P3,030.00 a
month until fully paid with the balance earning interest at the rate of six percent (6%)
per annum; and to pay the costs.
SO ORDERED.24
The trial court held that the defense failed to establish self-defense as a justifying circumstance.
According to the trial court, unlawful aggression, which is the most essential element to support
the theory of self-defense, was lacking in this case. The trial court found that, contrary to
Manabans claim, Bautista was not about to draw his gun to shoot Manaban. Evidence show
that Bautistas gun was still tucked in his waist inside a locked holster. Furthermore, the trial
court held that Bautista could not have surprised Manaban with a preemptive attack because
Manaban himself testified that he already had his gun pointed at Bautista when they were facing
each other. The trial court likewise rejected Manabans claim of exemption from criminal
liability because he acted under the impulse of an uncontrollable fear of an equal or greater
injury. The trial court held that the requisites for the exempting circumstance of uncontrollable
fear under paragraph 6, Article 12 of the Revised Penal Code are not present in this case.
However, the trial court credited Manaban with two mitigating circumstances: voluntary
surrender and obfuscation.
The Court of Appeals Ruling
On appeal, the Court of Appeals affirmed the trial courts decision. The Court of Appeals later
reconsidered and modified its decision with respect only to the award of loss of earning capacity.
Using the formula 2/3 [80 age at the time of death] x [gross annual income 80% gross annual
income], the Court of Appeals recomputed the award for loss of earning capacity. In its
Resolution dated 8 November 2001, the Court of Appeals reduced the award for the loss of the
victims earning capacity from P1,418,040 to P436,320.
The Issues
In his petition for review, Manaban submits that:
1. The Respondent Court gravely erred in affirming the erroneous factual appreciation
and interpretation by the trial court a quo in practically affirming the decision of the
latter court which are based on a clear misappreciation of facts and findings grounded
entirely on speculations, surmises or conjectures "in a way probably not in accord
with law or with the applicable jurisprudence of the Supreme Court."
2. The Respondent Court gravely erred in ignoring petitioners self-defense on the
sole fact that the entrance of the deceased victims wound was from the back.
3. The Respondent Court gravely erred in concluding that petitioner failed to establish
unlawful aggression just because the holster of the victim was still in a lock position.
4. Granting arguendo that petitioner made a mistake in his appreciation that there was
an attempt on the part of the deceased victim to draw his gun who executed
"bumalikwas," such mistake of fact is deemed justified.
5. Finally, the Respondent Court gravely erred in awarding exorbitant and baseless
award of damages to the heirs of deceased victim.25
The Courts Ruling
The petition is partly meritorious.
An appeal in a criminal case opens the entire case for review. The reviewing tribunal can correct
errors though unassigned in the appeal, or reverse the lower courts decision on grounds other
than those the parties raised as errors.26
Unlawful Aggression is an Indispensable Requisite of Self-Defense
When the accused invokes self-defense, he in effect admits killing the victim and the burden is
shifted to him to prove that he killed the victim to save his life.27 The accused must establish by
clear and convincing evidence that all the requisites of self-defense are present.28
Under paragraph 1, Article 11 of the Revised Penal Code, the three requisites to prove self-
defense as a justifying circumstance which may exempt an accused from criminal liability are:
(1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means
employed to prevent or repel the aggression; and (3) lack of sufficient provocation on the part
of the accused or the person defending himself.29 Unlawful aggression is an indispensable
requisite of self-defense.30 Self-defense is founded on the necessity on the part of the person
being attacked to prevent or repel the unlawful aggression.31 Thus, without prior unlawful and
unprovoked attack by the victim, there can be no complete or incomplete self-defense.32
Unlawful aggression is an actual physical assault or at least a threat to attack or inflict physical
injury upon a person.33 A mere threatening or intimidating attitude is not considered unlawful
aggression,34 unless the threat is offensive and menacing, manifestly showing the wrongful
intent to cause injury.35 There must be an actual, sudden, unexpected attack or imminent danger
thereof, which puts the defendants life in real peril.36
In this case, there was no unlawful aggression on the part of the victim. First, Bautista was shot
at the back as evidenced by the point of entry of the bullet. Second, when Bautista was shot, his
gun was still inside a locked holster and tucked in his right waist. Third, when Bautista turned
his back at Manaban, Manaban was already pointing his service firearm at Bautista. These
circumstances clearly belie Manabans claim of unlawful aggression on Bautista's part.
Manaban testified:
ATTY. ANCANAN
Q: You said the victim showed his gun by raising his shirt?
A: Yes, sir.
Q: The victim never drew his gun?
A: He was about to draw the gun when he turned around.
Q: My question is when the victim was facing you, the victim never drew his gun?
A: Not yet, sir.
Q: And when you told the victim not to come close, he did not come closer anymore?
A: He walked towards me, sir.
Q: For how many steps?
A: I cannot remember how many steps.
Q: And according to you, while he was facing you and walking towards you he
suddenly turned his back to you, is that correct?
A: Bumalikwas po at parang bubunot ng baril.
Q: Let us get the meaning of "bumalikwas", tumalikod sa iyo?
A: Bumalikwas po (witness demonstrating).
Q: Will you please demonstrate to us how the victim "bumalikwas"?
A: When he was facing me and I told him, "Sir, you just be there otherwise I am going
to take the gun" and at that moment, he, the victim turned his back and simultaneously
drew the gun.
Q: When he was facing you, the victim never drew his gun, is that correct?
A: Not yet, sir.
Q: And according to you, it was at that point when he turned his back on you
that he tried to draw his gun?
A: Yes, sir.
Q: You said that he tried to draw, but the fact is he merely placed his hand on
his waist?
3
A: No, sir, when I saw him, when he was hit, I saw him, the hand was already on
the gun but still tucked on his waist (witness places his hand on his right waist
with fingers open).
Q: And it was at that precise moment while the victims back was turned on you
that you fired your shot?
A: When he was about to turn his back and it seems about to take his gun, that
is the time I shot him because of my fear that he would be ahead in pulling his
gun and he might kill me.
Q: When you said, when you fired your shot, the victims gun was still tucked in
his right waist, is that correct?
A: Yes, sir, his hand was on his waist.
Q: You just answer the question. Was the victims gun still tucked on his
waistline?
A: Yes, sir.
Q: And his hand was merely placed on his hips. The victims right hand was merely
placed on his right hip?
ATTY. CARAANG
I object. The witness testified that he was about to draw his gun.
COURT
He is asking the question so he has to answer.
A: No, sir, the gun was on his waist.
ATTY. ANCANAN
Q: At the precise time that you fired your second shot, you could have aimed
your gun at the extremities of the victim, meaning legs or arms, is that correct?
A: When I saw him that he was about to draw his gun because of my fear that he
would get ahead of me and he would kill me, I did not mind anymore, I just
inunahan ko siya.
ATTY. CARAANG
May I request that the answer of the witness be quoted as is?
A: Noong makita ko siya na pabalikwas siya, na sabay bubunot ng baril, sa takot
ko na baka maunahan niya ako at mapatay, doon ko na rin nakalabit yung
gatilyo ng baril ko.
ATTY. ANCANAN
Q: Mr. Witness, how long have you been a security guard before this incident?
A: Around 7 months, sir.
Q: Now, before you were employed as security guard by the Eagle Star Security
Agency, did you undergo any training as a security guard?
A: Yes, sir.
Q: Where?
A: Camp Crame, sir.
Q: For how long?
A: Three (3) days, sir.
Q: And what did you learn from those 3 days training as security guard?
A: Our duties as security guard were lectured to us, sir.
Q: Now, were you not taught during the training that in any given situation, your
first duty is to disable first an aggressor?
ATTY. CARAANG
Objection, your Honor, I think that is no longer material besides, that
is not part of my direct examination.
COURT
Witness may answer.
A: It was taught to us, sir, but it depends on my situation. If the person kept on
doing what I told him not to do and it would reach a point that it would endanger
my life, of course even if you were in my place, you would do the same thing, so
nakipagsabayan na ako, sir.
Q: But in this particular case when you fired your second shot, the victims back was
towards you, is that not correct?
ATTY. CARAANG
Objection, already answered, your Honor.
COURT
Witness may answer.
A: No, sir, I shot him only once, not twice.
Q: Please answer the question. When you fired your second shot . . .
A: Bumalikwas ho yon eh.
Q: Please answer the question.
A: Yes, sir.
Q: And because his back was towards you, you could have easily disabled him
by firing at his leg or at his arms, is that not correct?
ATTY. CARAANG
I object, your Honor, it was already answered. He said he was not given the
opportunity to have a second thought and at that moment he was able to pull
the trigger of his gun.
ATTY. ANCANAN
The witness already admitted that when he fired his gun, the victims back
was towards the witness, so my last question is just a follow-up.
ATTY. CARAANG
But the witness testified that he was not given the opportunity to have a
second thought, that is why right then and there, he pulled the trigger of his
gun.
COURT
Objection noted, witness may answer.
A: What I was thinking at that time, was just to disarm him but when he turned,
bumalikwas, and I saw that he was going to draw a firearm and that was when I
decided to "makipagsabayan."
xxx xxx xxx
RE-DIRECT EXAMINATION
ATTY. CARAANG
Q: Mr. Witness, when you and the victim were facing each other, the gun was
already pointed to him, is it not? Your gun?
A: Yes, sir, I pointed my gun at him.37
The allegation of Manaban that Bautista was about to draw his gun when he turned his back at
Manaban is mere speculation. Besides, Manaban was already aiming his loaded firearm at
Bautista when the latter turned his back. In that situation, it was Bautista whose life was in
danger considering that Manaban, who had already fired a warning shot, was pointing his
firearm at Bautista. Bautista, who was a policeman, would have realized this danger to his life
and would not have attempted to draw his gun which was still inside a locked holster tucked in
his waist. Furthermore, if Manaban really feared that Bautista was about to draw his gun to shoot

4
him, Manaban could have easily disabled Bautista by shooting his arm or leg considering that any other competent proof for food expenses and rental fee for jeeps for the funeral. Editha
Manabans firearm was already aimed at Bautista. merely submitted a typewritten "Summary of Food Expenses & Others."46 A mere list of
Aggression presupposes that the person attacked must face a real threat to his life and the peril expenses, without any official receipts or any other evidence obtainable, does not to prove actual
sought to be avoided is imminent and actual, not imaginary. 38 Absent such actual or imminent expenses incurred.47 Competent proof of the actual expenses must be presented to justify an
peril to ones life or limb, there is nothing to repel and there is no justification for taking the life award for actual damages.48 In this case, only the following expenses were duly supported by
or inflicting injuries on another.39 official receipts and other proof :
Voluntary Surrender and Obfuscation 1. Embalming fee49 P11,000
The trial court credited Manaban with two mitigating circumstances: voluntary surrender and
obfuscation. 2. Bronze Casket50 25,000
It is undisputed that Manaban called the police to report the shooting incident. When the police 3. Cadillac Hearse fee51 3,500
arrived, Manaban surrendered his service firearm and voluntarily went with the police to the
4. Funeral Services52 30,000
police station for investigation. Thus, Manaban is entitled to the benefit of the mitigating
circumstance of voluntary surrender. Total P69,500
On obfuscation, we find that the facts of the case do not entitle Manaban to such mitigating Thus, we reduce the actual damages granted from P111,324 to P69,500.
circumstance. Under paragraph 6, Article 13 of the Revised Penal Code, the mitigating We likewise reduce the indemnity for death from P75,000 to P50,000 in accordance with
circumstance of passion and obfuscation is appreciated where the accused acted upon an impulse prevailing jurisprudence.53
so powerful as naturally to have produced passion or obfuscation. The requisites of the WHEREFORE, we AFFIRM with MODIFICATION the Decision of the Court of Appeals
mitigating circumstance of passion or obfuscation are: (1) that there should be an act both dated 21 May 2001 and its Resolution dated 8 November 2001. We find petitioner Ramonito
unlawful and sufficient to produce such condition of mind; and (2) that the act which produced Manaban guilty beyond reasonable doubt of the crime of Homicide. Applying the Indeterminate
the obfuscation was not far removed from the commission of the crime by a considerable length Sentence Law and taking into account the mitigating circumstance of voluntary surrender,
of time, during which the perpetrator might recover his normal equanimity. 40 Ramonito Manaban is hereby sentenced to suffer an indeterminate penalty ranging from six
In his testimony, Manaban admitted shooting Bautista because Bautista turned around and was years and one day of prision mayor as minimum to 12 years and one day of reclusion
allegedly about to draw his gun to shoot Manaban. The act of Bautista in turning around is not temporal as maximum. Ramonito Manaban is ordered to pay the heirs of Joselito
unlawful and sufficient cause for Manaban to lose his reason and shoot Bautista. That Manaban Bautista: P892,570.56 as indemnity for loss of earning capacity; P69,500 as actual damages;
interpreted such act of Bautista as preparatory to drawing his gun to shoot Manaban does not and P50,000 as indemnity for death.
make Bautistas act unlawful. The threat was only in the mind of Manaban and is mere SO ORDERED
speculation which is not sufficient to produce obfuscation which is mitigating. 41 Besides, the
threat or danger was not grave or serious considering that Manaban had the advantage over
Bautista because Manaban was already pointing his firearm at Bautista when the latter turned
his back. The defense failed to establish by clear and convincing evidence the cause that
allegedly produced obfuscation.
Award of Damages
The records42 reveal that Bautista was 36 years old at the time of his death and not 26 years old
as stated by the trial court and the Court of Appeals.43 Moreover, the annual salary of Bautista
at the time of his death was already P60,864 and not P60,600.44 We likewise modify the formula
applied by the Court of Appeals in the computation of the award for loss of earning capacity. In
accordance with current jurisprudence,45 the formula for the indemnification for loss of earning
capacity is:
Net Earning = Life Expectancy x [Gross Annual Living Expenses]
Capacity Income (GAI)
= 2/3(80 age of deceased) x (GAI 50% of GAI)
Using this formula, the indemnification for loss of earning capacity should be:
Net Earning Capacity = 2/3 (80 36) x [P60,864 (50% x P60,864)]
= 29.33 x P30,432
= P892,570.56
With regard to actual damages, the records show that not all the expenses that the Bautista family
allegedly incurred were supported by competent evidence. Editha failed to present receipts or
5
SECOND DIVISION TSN, August 30, 2002; p. 2, TSN, April 21, 1998; p. 5, TSN, March 14,
2001; p. 2, CA Decision).

EXEQUIEL SENOJA, G.R. No. 160341 2. Subsequently, Leon walked out of Crisantos hut followed by
Petitioner, petitioner. Suddenly, about ten meters from the hut, petitioner stabbed Leon
Present: at the back. When Leon turned around, petitioner continued stabbing him
PUNO, J., Chairman, until he fell to the ground. Then, petitioner ran towards the barangay road
AUSTRIA-MARTINEZ, and threw away the kolonial knife he used in stabbing Leon. The latter died
- versus - CALLEJO, SR., on the spot (pp. 2-6, TSN, November 22, 2000; p. 5, TSN, August 30, 2002;
TINGA, and p. 3, CA Decision).
CHICO-
NAZARIO, JJ. 3. Dr. Pura Deveza Valenzuela-Uy, San Luis Municipal Health
Officer, examined the cadaver of Leon and found multiple lesions on his
Promulgated: body and five fatal wounds on his chest. Dr. Uy issued a medico-legal report
PEOPLE OF THE PHILIPPINES, and death certificate (Exhibits A and B, pp. 13-14, Records; pp. 3-5, TSN,
Respondent. October 19, 2004 November 20, 1997).[3]
x--------------------------------------------------x

DECISION
On August 13, 1997, an Information was filed charging petitioner Exequiel Senoja
CALLEJO, SR., J.:
with homicide, the accusatory portion of which reads:

That on April 16, 1997 at around 11 oclock in the morning in

Before us is a petition for review on certiorari of the Decision [1] of the Court of Appeals (CA)
in People v. Exequiel Senoja, docketed as CA-G.R. CR No. 26564, affirming with modification
the Decision[2] of the Regional Trial Court (RTC) of Baler, Aurora, Branch 96, in Criminal Case
No. 2259, for homicide.
Barangay Zarah, San Luis, Aurora, Philippines, and within the jurisdiction
of this Honorable Court, the said accused, did then and there, willfully,
unlawfully, and feloniously, with intent to kill, attack, assault, and use
personal violence upon the person of one Leon Lumasac by then and there
stabbing him with a bladed weapon locally known as kolonyal at the
different parts of his body thereby inflicting upon the latter mortal stab
wounds which were the direct and immediate cause of his death thereafter.

CONTRARY TO LAW.[4]
The Case For the People

The petitioner admitted killing the victim but invoked the affirmative defense of self-
As culled by the Office of the Solicitor General (OSG) in its comment on the petition,
defense. His version of the fatal incident is set forth in his petition at bar:
the case stemmed from the following:

1. On April 16, 1997, petitioner Exequiel Senoja, Fidel Senoja,

Jose Calica, and Miguel Lumasac were drinking gin in the hut of Crisanto 1. On April 16, 1997 at about 11 oclock in the morning, Crisanto
Reguyal in Barangay Zarah, San Luis, Aurora. An angry Leon Lumasac Reguyal, Fidel Senoja, Jose Calica, Miguel Lumasac, and Exequiel Senoja
suddenly arrived at the said place, holding a bolo in his right hand and were in the hut of Crisanto Reguyal in Barangay Zarah, San Luis, Aurora,
looking for his brother Miguel. Petitioner and Jose tried to pacify Leon. But drinking gin;
when petitioner approached Leon, the latter tried to hack him so he
embraced Leon and Jose took Leons bolo. Then, Leon and petitioner talked
things out and later reconciled (pp. 2-4, TSN, November 16, 1998; pp. 2-4,

6
 2. Leon Lumasac suddenly arrived holding a bolo and hacked the
doorpost of Crisantos hut, angrily demanding for his brother, Miguel
Lumasac, whom he suspected of drying up the ricefield he was plowing;
3. At this time, Miguel Lumasac was no longer inside the hut but
fetching water;
4. To prevent Leon Lumasac from entering the hut, Exequiel
Senoja (appellant) and Jose Calica stood by the door while simultaneously
trying to pacify Leon Lumasac;
5. Exequiel Senoja with a knife then went outside and tried to
pacify Leon Lumasac but the latter angered by the gestures of the former
tried to hack Exequiel Senoja;
6. To avoid any injury, Exequiel Senoja embraced Leon which
gave an opportunity to disarm the duo. Jose Calica got the bolo of Leon and
threw it away while Fidel Senoja took the colonial knife of Exequiel;
7. Jose Calica and Fidel Senoja were able to pacify Leon Lumasac
so they invited him to get inside the hut. Inside the hut, Leon Lumasac tried
to box Fidel Senoja for siding with his brother, Miguel, but was prevented
by Exequiel Senoja who held Leons hands;
8. After a while, Leon Lumasac left but returned and angrily
demanded for his bolo. Jose Calica gave his own bolo with a sabbard to
replace the bolo of Leon which he threw away;
9. With Jose Calicas bolo in him, Leon Lumasac left but only after
leaving a threat that something will happen to Exequiel Senoja for siding
with his brother;
10. After walking for about 10 meters away from the hut, Leon
Lumasac turned around and saw Exequiel Senoja on his way home
following him;
11. Leon Lumasac walked back to meet Exequiel Senoja and
upon reaching him, the former suddenly and treacherously hacked the latter
at the left side of his head and right thigh;
12. Unable to evade the treacherous attack by Leon Lumasac who
persisted in his criminal design, Exequiel Senoja drew his colonial knife
and stabbed Leon Lumasac in self-defense, inflicting upon him multiple
wounds which caused his death.[5]
On June 7, 2002, the trial court rendered judgment against the petitioner, finding him
guilty beyond reasonable doubt of the crime charged. The fallo of the decision reads:
WHEREFORE, premises considered, this Court finds accused
Exequiel Senoja GUILTY beyond reasonable doubt of the crime of
Homicide for the death of victim Leon Lumasac and hereby sentences him,
applying Article 64, paragraph 1 of the Revised Penal Code and Section 1
of the Indeterminate Sentence Law, (a) to suffer the penalty of twelve (12)
years of prision mayor as minimum to seventeen (17) years and four (4)
months of reclusion temporal as maximum; (b) to pay the heirs of the
victim the amount of Fifteen (sic) Thousand Pesos (Php 50,000.00) by way
of civil indemnity; and (c) to pay the costs.
SO ORDERED.[6]
In due course, the petitioner appealed the decision to the CA which rendered judgment
affirming, with modification, the decision of the RTC. The petitioner now seeks relief from this
Court, contending that:
The Honorable Court of Appeals failed to appreciate vital facts
which, if considered, would probably alter the result of this case on appeal
finding appellants plea of self-defense credible.[7]
The petitioner faults the CA for its analysis of his testimony, as follows:
The injuries suffered by the petitioner at the left side of his head
and right thigh was confirmed by Dr. Rodolfo Eligio in open court. The
relative positions of the wounds clearly show that the drunken Leon
Lumasac brandished and executed several hacking blows against Exequiel
Senoja before he was stabbed, neutralized and finished by the latter. It
would be physically and highly improbable for the victim if he was
treacherously hit at the left buttock and as he turned around to face the
petitioner, the latter stabbed him successively and without let-up hitting him
9 times resulting in 9 fatal wounds. This did not give a chance to the victim
to retaliate and inflict those wounds upon the aggressor. The victim used
Mr. Jose Calicas bolo which was secured by its scabbard. Unless earlier
drawn, it would be impossible for the victim to use it in
defending himself from the surprise attack and stabbing at a lightning
fashion inflicting nine (9) fatal wounds. Time element was the essence of
this encounter which, as narrated by the Honorable Court, after the assailant
poked the victim at the left side of the buttock with the use of the colonial
knife he stabbed him successively until he fell down dead. Under these
circumstances, how could Exequiel Senoja suffered (sic) those hacking (sic)
7
wounds inflicted by the victim using Calicas bolo? In all indications, it was
Leon Lumasac who attacked his adversary first but lost in the duel The petition is denied.
considering that he was older than Exequiel Senoja and drunk. Clearly,
therefore, it was Leon Lumasac who was the aggressor both in the first and
second phases of the incident and Exequiel Senoja was compelled to defend Paragraph 1, Article 11, of the Revised Penal Code provides:
himself.
ART. 11. Justifying circumstances. The following do not incur
A closer scrutiny of the attending circumstances which resulted any criminal liability:
in this stabbing incident shows that Exequiel Senoja has no compelling
reasons to kill his godfather. On that same occasion, Mr. Exequiel Senoja 1. Anyone who acts in defense of his person or rights, provided
was with the brother of the victim, Miguel Lumasac, which only shows that that the following circumstances concur;
there was no pre-existing grudge between these families. And still, what
titillates our imagination is the fact that Miguel Lumasac, who was then First. Unlawful aggression;
with the group drinking gin at the hut of Crisanto Reguyal did not clearly
impute this crime to petitioner. On the contrary, when he was presented to Second. Reasonable necessity of the means employed to prevent
the witness stand, he was very evasive in answering the questions or repel it;
profounded by the prosecutors if he wanted the petitioner to be
imprisoned. Miguel Lumasac could have told the real truth that Senoja Third. Lack of sufficient provocation on the part of the person
murdered his brother.[8] defending himself.

The CA declared that, based on the evidence on record: The affirmative defense of self-defense may be complete or incomplete. It is complete

As seen from appellants testimony, Leon Lumasacs actions can when all the three essential requisites are present; it is incomplete if only unlawful aggression
be divided into two (2) phases: the first phase, when Leon entered Crisanto
Reguyals hut, up to the time he and the appellant reconciled. The second on the part of the victim and any of the two essential requisites were present. In fine, unlawful
phase was when Leon left to go home. In phase one where Leon entered
Reguyals hut, Leon was the aggressor but his aggression was mostly aggression on the part of the victim is a condition sine qua non to self-defense, complete or
directed to his brother Miguel who was not inside the hut anymore, although
it was also partly directed at the appellant and even at Fidel Soneja (sic). But incomplete. Whether or not the accused acted in self-defense is a question of fact. Like alibi, the
Leons aggression against the appellant and Fidel Senoja ceased since, as
appellant testified, when Leon tried to box Fidel Senoja and he (appellant) affirmative defense of self-defense is inherently weak because, as experience has demonstrated,
told Leon Huwag po, Huwag po, Leon was pacified.
it is easy to fabricate and difficult to disprove.[10]
In the second phase, when Leon left the hut to go home, his
aggression had already ceased.
The right of self-defense proceeds from necessity and limited by it. The right begins
It is uncontroverted that the appellant followed the victim when
the latter went out of the hut to go home. Appellants testimony is that when where necessity does, and ends where it ends.[11] There is,
he was two meters outside the hut, Leon turned around to face him saying if
youre not only my godson in a threatening way, then approached and however, a perceptible difference between necessity and self-defense, which is that, self-defense
hacked him (with Calicas bolo) inflicting wounds on the left side of his head
and his right thigh, thus, he (appellant) attacked the victim with excuses the repulse of a wrong; necessity justifies the invasion of a right. Hence, it is essential
the kolonial knife he was holding. That appellant suffered such injuries was
corroborated by the testimony of Dr. Rodolfo Eligio.[9] to self-defense that it should be a defense against a present unlawful attack. [12]

8
 Life can be taken under the plea of necessity, when necessary for the preservation of to prove, with clear and convincing evidence, that he killed the victim or inflicted injuries on

the life on the party setting up the plea. Self-defense is an act to save life; hence, it is right and him to defend himself. The accused must rely on the strength of his own evidence and not on

not a crime.[13] There is a need for one, indeed, for it is a natural right for one to defend oneself the weakness of that of the prosecution because if the evidence of the prosecution were weak,

when confronted by an unlawful aggression by another. It is a settled rule that to constitute the accused can no longer be acquitted.[20]

aggression, the person attacked must be confronted by a real threat on his life and limb; and the
We agree with the CA that, as gleaned, even from the testimony of the petitioner, there
peril sought to be avoided is imminent and actual, not merely imaginary. Absent such an actual
were two separate but interrelated incidents that culminated in the petitioners stabbing and
or imminent peril to ones life or limb, there is nothing to repel; there is no necessity to take the
killing of the victim Leon Lumasac. The first was the arrival of the victim, who was armed with
life or inflict injuries on another.[14]
a bolo, in the hut of Crisanto Reguyal, looking for his brother Miguel Lumasac, whom he was

But then what is the standard to use to determine whether the person defending angry at. The victim hacked the wall of the house in anger. The petitioner, who was armed with

himself is confronted by a real and imminent peril to his life or limb? We rule that the test should a knife, tried to pacify the victim. The victim attempted to hack the petitioner; nevertheless, the

be: does the person invoking the defense believe, in due exercise of his reason, his life or limb latter embraced and managed to pacify the victim. Forthwith, Jose Calica took the bolo of the

is in danger? After all, the rule of law founded on justice and reason: Actus no facit remin, nisi victim and threw it away. For his part, Fidel Senoja took the petitioners knife. As it was, the

mens sit rea. Hence, the guilt of the accused must depend upon the circumstances as they victim was already pacified. He and the petitioner were already reconciled.[21] Fidel even gave

reasonably appear to him.[15] back the knife to the petitioner.

The second incident took place when the victim demanded that Calica return

Unlawful aggression presupposes an actual, sudden, unexpected attack or imminent his bolo as he wanted to go home already. Because he had thrown away the victims bolo, Calica

danger thereof, not merely a threatening or intimidating attitude. [16] Hence, when an was, thus, impelled to give his own. The victim then warned the petitioner three times, May

inceptual/unlawful aggression ceases to exist, the one making a defense has no right to kill or mangyayari sa iyo, kung hindi ngayon, bukas, and left the hut. When the victim had already

injure the former aggressor.[17] After the danger has passed, one is not justified in following up gone about ten meters from the hut, the petitioner followed the victim. The victim turned around

his adversary to take his life. The conflict for blood should be avoided if possible.[18] An assault and told the petitioner, Kung hindi lang kita inaanak. The victim then hacked the petitioner,

on his person, he cannot punish when the danger or peril is over. When the danger is over, the hitting the latter on the left side of his head and thigh. Believing that the victim would attack

right of self-defense ceases. His right is defense, not retribution.[19] him anew, the petitioner stabbed the victim frontally several times.[22] He also stabbed the victim

on the left buttock. The petitioner could not recall how many times he stabbed the victim and
When the accused offers the affirmative defense of self-defense, he thereby admits
what parts of the latters body had been hit.
killing the victim or inflicting injuries on him. The burden of evidence is shifted on the accused
9

The first episode inside the hut had been completed with the protagonist, the victim,
and the petitioner reconciled. The second episode commenced inside the hut and continued
outside, and ended with the petitioner stabbing the victim several times.
The trial and the appellate courts gave no credence and probative weight to the
testimony of the petitioner. So do we.
First. The findings of fact of the trial court and its conclusions based on the said
findings are accorded by this Court high respect, if not conclusive effect, especially when
affirmed by the CA. This is because of the unique advantage of the trial court of having been
able to observe, at close range, the demeanor and behavior of the witnesses as they testify. This
rule, however, is inapplicable if the trial court ignored, overlooked, or misinterpreted cogent
facts and circumstances which, if considered, will alter or reverse the outcome of the case. We
have reviewed the records and found no justification for a reversal of the findings of the trial
court and its conclusions based thereon.
Second. The victim sustained six hack wounds and one lacerated wound. This is
gleaned from the Necropsy Report of Dr. Pura Uy, to wit:
FINDINGS: The victim lies in supine position, stocky in built; his clothing
completely soaked with fresh blood.
CHEST:
(+) stab wound 2 inches below the L nipple 4 inches deep running medially
to the anterior median line.
(+) stab wound 2 inches to the L of the anterior median line at the level of
the L nipple 5 inches deep running posteriorly.
(+) stab wound 1 inch above the L nipple 4 inches deep running
inferomedially.
(+) stab wound 2 inches to the left of the anterior median line 4 inches deep
running inferoposteriorly.
(+) stab wound 1 inch to the right of the anterior median line at the level of
the second right intercostal space 0.5 inch in depth.
(+) stab wound inch to the right of the anterior median line at the level of
the xyphoid process 3 inches deep running superiorly.
(+) stab wound at the level of the L nipple L anterior axillary line 4 inches
in depth running superiorly to the left armpit.
(+) hack wound at the left armpit 3 inches long injuring the muscles and the
blood vessels.
(+) lacerated wound on the left palm almost cutting off the proximal
phalanx of the left thumb.[23]
Five of the wounds of the victim on his chest were fatal.[24] The victim also sustained
a stab wound on the left buttock. According to the doctor, it was unlikely for the victim to have
survived even with medical attention.[25] After the doctor made her initial autopsy and submitted
her report, she noted that the victim sustained a stab wound of about two inches deep at the left
buttock, thus:
Q In this medico-legal report, you indicated that the cause of death of the
victim is Hypovolemic shock 2 to multiple stab wounds, chest.
Will you please explain this?
A Ito pong nakalagay o dahilan ng pagkamatay ng biktima sa sobrang
natapon na dugo gawa ng maraming saksak na tinamo ng biktima
sa kanyang dibdib ang nagbigay ng daan sa kanyang kamatayan.
Q Will you please tell us, Dr. Uy, if there is one amont (sic) these lesions
that is located at the back of the victim?
A I forgot to tell you that a day after I submitted the report, the funeral parlor
which attended the victim has called my attention because of the
wound at the back of the victim and I attended immediately to see
these lesions at the home of the victim. I reviewed for (sic) these
lesions and I saw one lesion located at the left buttock of the
victim.
Q What is the nature of the injury?
A Stab wound, about two inches deep.
Q By the nature of the lesion, is it not fatal?
A It is not that fatal.
Q In your expert opinion, by the nature of the wound sustained by the
victim, what could have been the relative position of the victim in
relation to his assailant?
A Based on my examination, I think the victim and the assailant were facing
each other. Masyadong malapit.
Q How many fatal wounds have (sic) the victim sustained in his chest?
A Five fatal stab wounds on the chest.[26]
10

Considering the number, nature and location of the wounds sustained by the victim,
the petitioners plea of self-defense is incredible.[27] It bears stressing that the petitioner
resolutely denied stabbing the victim at the buttock and insisted that he stabbed the victim
frontally:
Q As a matter of fact, he sustained an injury at the back of his buttock (pigi)
and when he faced you, you stabbed him again several times?
A That is not true, Sir.
Q But you are admitting that you stabbed him several times frontally?
A Yes, Sir, because I am (sic) defending myself.
Q You also stabbed him in his left armpit?
A I dont know, Sir.
Q But you knew that you stabbed him in his buttock?
A No, Sir.
Q After stabbing him several times and felt that he was already dead, you
already left the place?
A Yes, Sir.[28]
The testimony of the petitioner is belied by the physical evidence on record. The
settled rule is that physical evidence is evidence of the highest order; it speaks more eloquently
than a hundred witnesses.[29]
Third. The petitioner threw away his knife and failed to surrender it to the policemen;
neither did he inform the policemen that he killed the victim in self-defense. The petitioners
claim that the victim was armed with a bolo is hard to believe because he even failed to surrender
the bolo.[30]
Fourth. The petitioners version of the events that transpired immediately before he
stabbed the victim does not inspire belief. He claims that when he saw the victim emerged from
the hut, the victim walked towards the petitioner saying, Kung hindi lang kita inaanak, but hit
and hacked the latter on the left buttock.[31] As gleaned from his statement, the victim was not
disposed, much less determined to assault the petitioner. And yet, the petitioner insists that
without much ado, the victim, nevertheless, hit him on the head and on the thigh with his bolo.
Fifth. According to the petitioner, the victim warned him three times before leaving
the hut, May mangyayari sa iyo, kung hindi ngayon, bukas. The petitioner testified that shortly
before the victim uttered these words, the latter even touched the blade of the bolo to see if it
was sharp.[32] The petitioner was, thus, aware of the peril to his life if he followed the victim. The
petitioner, nevertheless, followed the victim and left the hut after the victim had gone barely ten
meters. He should have waited until after the victim had already gone far from the hut before
going home to avoid any untoward incident.
Sixth. The petitioner presented his brother-in-law Ruben Dulay to corroborate his
testimony that the victim stabbed the petitioner and that this impelled the latter to stab the
former. But the testimony of Dulay contradicted the testimony of the petitioner:
Q When Exequiel Senoja stabbed Leon Lumasac several times, he
immediately fell to the ground and was fatal[ly] wounded,
immediately died because of several stabs and lay (sic) down?
A I did not see that scene because Exequiel Senoja stabbed Leon Lumasac,
I turn (sic) back upon seeing Leon Lumasac hack Exequiel Senoja, I
turn (sic) back because I was afraid then. When I turn (sic) back I saw
them embracing each other, Sir.
Q And that is the time when Exequiel Senoja stabbed Leon Lumasac?
A I did not see the stabbing. What I only saw was that they were embracing
each other, Sir.
Q So you are now changing your answer, you actually saw Exequiel Senoja
stabbing Leon Lumasac several times, after he was hack[ed] by Leon
Lumasac?
A I did not see that Exequiel Senoja stab Leon Lumasac, Sir. [33]
11
 Q In what place did this incident happen?
Seventh. The bare fact that the petitioner sustained a five-centimeter wound at the left temporal A In the hut of Tata Santos, Sir.

region and an eight-centimeter hack wound on the anterior portion of his right thigh does not Q What is his real name?
A Crisanto Reguyal, Sir.[35]
preclude the fact that he was the unlawful aggressor; nor buttress his plea that he acted in self-

defense. The petitioner failed to inform the doctor that he sustained the wounds to defend If, as claimed by the petitioner, the victim stabbed him frontally, it is incredible that the victim

himself. Moreover, the doctor testified that the wounds the petitioner sustained were slight: was able to hack the anterior part of his right thigh.

Pros. Ronquillo:
Q Does (sic) the wound at the right anterior thigh vertical, diagonal or what? Eighth. The testimony of the petitioner that the victim stabbed him outside the hut on the left
A I did not place it, Sir.
side of his head and the anterior portion of his right thigh is belied by his testimony on direct
Q So, you dont know?
A It is vertical, Sir, but I did not place it on the record. And the hack wound examination that the victim stabbed him while still inside the hut of Reguyal:
on the temporal region is oblique.

Q Were the injuries only slight?

A Yes, Sir. Q How did it happen that you were able to kill the victim in this case Mr.
Leon Lumasac?
A Because when I went out, he hacked me, Sir.

Q So, it is (sic) possible that these injuries were self-inflicted? Q Were you hit by the hack made by the victim in this case?
A Probably, Sir, but I cannot comment on that. A Yes, Sir.

Q You said that the patient was under the influence of alcohol? Would you Q Where?
say that the patient was then so drunk at that time? A Here, Sir.
A When I saw him at that time, he was moderately drunk. [34]
And Witness is pointing to his left head.
The doctor gave the petitioner due medications for 30 minutes and the petitioner then went
Q Where else?
home: A (His) right thigh.

Q How did it happen that you were able to kill the victim in this case Mr. Q In what place did this incident happen?
Leon Lumasac? A In the hut of Tata Santos, Sir.
A Because when I went out, he hacked me, Sir.
Q What is his real name?
Q Were you hit by the hack made by the victim in this case?
A Yes, Sir. A Crisanto Reguyal, Sir.[36]

Q Where?
A Here, Sir. But then, after the said incident, the petitioner and the victim had reconciled. We agree with the

And Witness is pointing to his left head. following findings of the appellate court:
The question that must be resolved is whether or not the victim
Q Where else? was the unlawful aggressor as the appellants testimony pictures him to be.
A (His) right thigh. The Court rules in the negative. The victim had already left the hut and was
ten (10) meters away from it. There is no showing that the victim, who was
12
 drunk, was aware that appellant was following him, or that the appellant
called out to him so that he (the victim) had to turn around and notice him. It
is clear that at that point in time, the victim was simply walking toward his
home; he had stopped being an aggressor. It was the appellant who,
smarting from the earlier incident in the hut where Leon told him hindi ka
tatagal, sa loob ng tatlong araw mayroong mangyayari sa iyo, kung hindi
ngayon, bukas repeated three times, wanted a confrontation. Appellant
stabbed or poked the victim in the left buttock resulting in the non-fatal
wound, and when the latter turned around, successively stabbed and hacked
the victim in the armpit and chest until he fell. In all, the victim suffered
nine (9) wounds.

It is the well-considered finding of this Court that while Leon

Lumasac had ceased being the aggressor after he left the hut to go home,
accused Exequiel Senoja was now the unlawful aggressor in this second
phase of their confrontation. It bears mentioning that appellant contradicted
himself with respect for (sic) the reason why he left the hut. First, it was to
pacify Leon and the second reason was that he was going home.

As for appellants injuries, it is clear that they were sustained in

the course of the victims attempt to defend himself as shown by the
lacerated wound on the victims left palm, a defensive wound. [37]

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed Decision of

the Court of Appeals is AFFIRMED.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

13
G.R. No. 107874 August 4, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GEORGE DECENA y ROCABERTE, accused-appellant.
The Solicitor General for plaintiff-appellee.
Aquilino P. Bolinas for accused-appellant.
REGALADO, J.:
It is said that a fool shows his annoyance at once, but a prudent man overlooks an insult. 1 Had
herein accused-appellant George Decena reflected upon and hearkened to this biblical precept,
he would not have found himself charged with murder for allegedly stabbing to death one Jaime
Ballesteros in San Fabian, Pangasinan on of all dates December 25, 1990. 2
Appellant thereafter stood trial on a plea of not guilty. On September 20, 1991, judgment was
rendered by the trial court convicting him of murder, imposing on him the penalty of reclusion
perpetua, and ordering him to indemnify the heirs of the deceased in the amount of P50,000.00,
plus the additional amounts of P4,500.00 and P2,300.00 representing the funeral expenses for
the victim, with costs. 3
A motion for reconsideration filed by appellant was denied on August 26, 1992 for lack of
merit, 4 hence this appellate review wherein appellant contends, in his assigned errors, that the
lower court blundered in disregarding his claim of self-defense, and in not appreciating the
mitigating circumstance of voluntary surrender in his favor, granting arguendo that he is
guilty. 5
The case for the prosecution, anchored mainly on the testimony of Luzviminda Ballesteros, a
14-year old daughter of the victim, is to the effect that on Christmas Day of 1990, at around
4:00 P.M., said Luzviminda was playing with her siblings at home. She recalled being asked by
her mother, Teresita Ballesteros, to fetch her father, Jaime Ballesteros, who was then watching
a game in the basketball court. On her way to the hardcourt, Luzviminda met her father walking
home in an intoxicated state. Suddenly, she saw appellant rushing towards her father with a long
bladed weapon, prompting Luzviminda to warn her father to run for safety by shouting in the
vernacular "Batik kila, Tatay!" Instead, Jaime simply raised his hand, thus allowing appellant to
stab him on the right chest just below the nipple. Appellant then fled from the crime scene, while
the victim also managed to run but stumbled and fell to the ground. 6
Finding that her father was too heavy for her to carry, Luzviminda called for her mother at their
house, which was only fifteen meters away from the scene of the crime, saying: "Mother, come!
My father has been stabbed by George Decena." Her mother immediately called for a tricycle
and rushed Jaime to the Provincial Hospital where, however, the victim was declared dead on
arrival. 7
A different account of the incident was presented by the defense. It was claimed that at about
4:00 P.M. of that day, appellant was watching a basketball game. The victim, Jaime Ballesteros,
went around the basketball court, walking in a wobbly manner due to drunkenness. Jaime
stopped near the place where appellant was sitting and, for no apparent reason, held the latter
by the neck with one arm and, at the same time, poking a fork against it with the other
arm. Barangay Tanod Romeo Decena who was also watching the basketball game, intervened.
He took the fork from Jaime and advised appellant to go home. The latter left and was followed
later by Jaime.
Fernando Biala, an uncle of appellant, additionally testified that while he was walking on
the barangay road of Longos-Patalan, he chanced upon Jaime attacking appellant with
a balisong. Fortunately, he claims, appellant was able to parry the stabbing blow and a struggle
ensued between them. Appellant overpowered Jaime and succeeded in twisting the wrist of the
victim and thrusting the knife into the latter's body. 8
In criminal cases, the burden of proof is, of course, on the prosecution which must rely on the
strength of its evidence and not on the weakness of the defense. Herein appellant, however,
invokes self-defense, thereby shifting the burden of evidence to him and the onus of which he
must satisfactorily discharge, otherwise conviction would follow from his admission that he
killed the victim. 9 Furthermore, appellant must this time rely on the strength of his own
evidence and not on the weakness of that of the prosecution, for even if that was weak, it cannot
be disbelieved after appellant himself admitted the killing. 10
The basic requirement for self-defense, as a justifying circumstance, is that there was an
unlawful aggression against the person defending himself. It must be positively shown that there
was a previous unlawful and unprovoked attack that placed the life of the accused in danger and
forced him to inflict more or less severe wounds upon his assailant, employing therefor
reasonable means to resist said attack. 11 The primal issue in this case, therefore, is whether or
not appellant acted in complete self-defense in killing Jaime Ballesteros, as claimed, thus
absolving him from criminal liability.
Long has it been accepted that for the right of defense to exist, it is necessary that one be
assaulted or that he be attacked, or at least that he be threatened with an attack in an immediate
manner, as, for example, brandishing a knife with which to stab him or pointing a gun to be
discharged against him. 12 So indispensable is unlawful aggression in self-defense that, without
it, there is no occasion to speak of the other two requisites for such a defense because both
circumstances presuppose an unlawful aggression.
The theory of the defense is that the unlawful aggression started in the basketball court, when
the victim tried to poke a fork on the neck of appellant, and continued thereafter. Even on the
elementary rule that when the aggressor leaves, the unlawful aggression ceases, it follows that
when appellant and Jaime heeded the advice of the barangay tanod for them to go home, the
unlawful aggression had ended. Consequently, since unlawful aggression no longer existed,
appellant had no right whatsoever to kill or even wound the former aggressor. The supposed
continuation of the unlawful aggression which could have justified self-defense would have
been the circumstance that Jaime persisted in his design to attack appellant while the latter was
already in front of his house. This fact, however, the defense ruefully failed to establish.
It is an old but a respected and consistent rule that courts must determine by a balance of
probabilities who of the participants in a fight had, in the natural order of things, the reason to
commence the aggression. 13 When appellant claimed that Jaime suddenly and without any
provocation tried to strangle him and poked a fork against his neck, in front of so many people
in the basketball court, 14 then he must necessarily have been deeply offended, if not insulted,
and this fact undoubtedly fired him with a desire to get even with the deceased.
The case at bar calls to mind the scenario and logical view that when a person had inflicted
slight physical injuries on another, without any intention to inflict other injuries, and the latter
attacked the former, the one making the attack was an unlawful aggressor. The attack made was
evidently a retaliation. And, we find this an opportune occasion to emphasize that retaliation is
different from an act of self-defense. In retaliation, the aggression that was begun by the injured
party already ceased to exist when the accused attacked him. In
self-defense, the aggression was still existing when the aggressor was injured or disabled by the
person making a defense. 15 We find these observations apropos to the situation presented by
the instant case.
It will be recalled that, as claimed by appellant, the unlawful aggression complained of also took
place in front of his house, where Jaime allegedly tried to attack him with a balisong, and not
only in the basketball court. To support his theory of continuing aggression, appellant alleged
14
that whenever the victim was drunk, he would look for trouble. Again, the defense utterly failed
to prove this hypothesis. On the contrary, the wife of the victim testified that the latter has no
such record in their barangay 16 and, significantly, her said testimony was never refuted nor
objected to by appellant.
Witnesses for and against the appellant testified that throughout the incident Jaime was
inebriated and that he was staggering or wobbling as he walked. 17 If he had such difficulty even
in performing the normal bodily function of locomotion, it could not be expected that he would
muster enough courage to persist in attacking and attempting to kill appellant, as posited by the
defense, considering that the latter was decidedly stronger than him.
Essentially involved, in view of the conflicting submissions of the parties, is the matter of the
credibility of their respective witnesses. Accordingly, we are constrained to once again advert
to the jurisprudential rule that the evaluation of the credibility of witnesses is within the province
of the trial court which is better circumstanced because of its direct role in the reception of the
testimonial evidence. 18 After examining and evaluating the conflicting versions of the
prosecution and the defense, we agree with the court a quo that the prosecution's account is
deserving of more credence. On the other hand, we note grave inconsistencies in the declarations
of the defense witnesses.
First. Appellant, in his direct examination, testified that a fork was poked at his neck but, on
cross-examination, he vacillated and testified that it was a knife instead.19 Surely, appellant must
know the difference between a fork and a knife.
Second. Appellant insisted that after the stabbing incident in the late afternoon of December 25,
1990 and until his surrender early next morning,
he never went out of his house. This is contradicted by the unchallenged Entry No. 173 of the
local police blotter, especially its follow-up entry which the court below quoted in its decision:
Relative entry no. 173, elements of this station proceeded to Barangay
Longos this town to locate the suspect and returned station with the
information that said suspect fled after the incident. One deformed
fork submitted by the father of the suspect Francisco Decena to Sgt. R.B.
Diagan allegedly owned by the victim. Under follow-up. Sgd. Ricardo
Abrio, Pfc/PNP. 20
Third. Appellant's smug excuse for not immediately divulging to
Sgt. Romeo Diagan that he was not at fault for the death of Jaime was that he was terribly afraid
to do so. Strangely, however, this was not his demeanor and attitude when he boldly professed
and contended that it was Jaime who first poked a fork against his neck while he was watching
a basketball game. Parenthetically, the other half of the story was deliberately not narrated. 21 Be
that as it may, the Court has heretofore noted that a righteous individual will not cower but
would readily admit the killing at the earliest opportunity if he were legally and morally justified
in doing so. A belated plea or denial suggests that it is false and only an afterthought made as a
last ditch effort to avoid the consequences of the crime. 22
Fourth. The supposed eyewitness of the defense who is appellant's uncle, Fernando Biala,
impresses us as either an imaginative or a coached witness. He avowed that he saw the stabbing
incident, but shock and surprise allegedly prevented him from going near Jaime or appellant,
when he saw Jaime about to stab appellant. However, on cross-examination, he said that he
merely chanced on them at the time when Jaime was already actually stabbingappellant, for the
reason that he did not see where appellant or Jaime came from before the incident. When asked
how long the fight transpired, he vaguely answered that he could not tell because when he went
up the road, the two were already fighting. However, he again vacillated by saying that when
Jaime was about to deliver the stabbing blow, appellant caught the hand of Jaime "squeezed and
pushed it forward and Jaime Ballesteros hit himself." 23This is a mercurial account since, to
repeat, this witness categorically admitted that even as he was still going up the road, the
supposed combatants were already fighting and that fight actually lasted only a few seconds.
Appellant declared that he is related to the victim's wife, that they are neighbors, and that there
was no grudge between him and the victim, nor with any member of the family of the
latter. 24 This was apparently to bolster his theory that he had no motive to assault the victim.
His assertions, however, work both ways for it also established the fact that Luzviminda would
likewise not just indiscriminately and improvidently point her finger at anybody but to the
culprit himself, in order to obtain justice for the death of her father.
That the principal witness is the victim's daughter even lends more credence to her testimony as
her natural interest in securing the conviction of the guilty would deter her from implicating
persons other than the culprits, for otherwise the latter would thereby gain immunity. 25 This
observation, however, could not be said for the defense witnesses who are all relatives of
appellant. As such, they may be expected to cover up for the crime. While relationship between
the accused and his witnesses is not necessarily detrimental to the former's line of defense, this
relationship, taken together with the want of logic (of) in the declarations of said witnesses,
yields the conclusion that their testimonies lack credibility. 26
In contrast, and further reinforcing the case for the People, is the fact that when Luzviminda
shouted, "Mother, come! My father has been stabbed by George Decena," that outcry and the
identification of the culprit were unrehearsed and spontaneously made at the spur of the moment.
Having been given shortly after a startling occurrence took place before the eyes of Luzviminda,
who had thereby no opportunity to concoct or contrive a story, that statement has all the
earmarks of the truth of what she said. Under the environmental circumstances hereinbefore
related, it easily passes the tests not only of admissibility in evidence but also of weight in its
veracity.
We, however, reject the trial court's holding that the killing of the victim was attended by
treachery. Any circumstance which would qualify a killing to murder must be proven as
indubitably as the crime itself. 27 Here, the qualifying circumstance of treachery cannot be
appreciated, for none of the prosecution's arguments can uphold its allegation that, in the
language of the law, appellant committed the crime by employing means, methods or forms in
the execution thereof which tended directly and especially to insure its execution, without risk
to himself arising from the defense which the offended party might make. It is true that the
attack was sudden, but that fact per se does not bespeak the circumstance of alevosia. 28 It is
further required that the means, methods or forms were deliberated upon or consciously adopted
by the offender. 29 The crime committed, therefore, was simple homicide.
The reasons advanced by the lower court for appreciating the aggravating circumstance of
disregard of age are not persuasive. There was no showing that appellant deliberately intended
to insult the age of Jaime. We hold that for this circumstance to constitute an aggravation of
criminal liability, it is necessary to prove the specific fact or circumstance, other than that the
victim is an old man, showing insult or disregard of age in order that it may be considered as an
aggravating circumstance. 30 In the case at bar, that consideration does not obtain, aside from
the fact that while the victim was forty-three years of age, he was not necessarily old, nor was
there a radical disparity between his age and that of appellant who was twenty-five years old.
The rule is that the mitigating circumstance of voluntary surrender may properly be appreciated
if the following requisites concur: (a) the offender had not actually been arrested; (b) the
offender surrendered himself to a person in authority or to an agent of a person in authority; and
(c) the surrender was voluntary. We believe that the mitigating circumstance of voluntary
surrender may be awarded to appellant. The records disclose that appellant was, evidently with
his concurrence, accompanied and surrendered by his father to a person in authority, Sgt. Romeo
Diagan, early in the morning after the incident and before he could actually be arrested. That
15
mitigating circumstance can, therefore, be properly considered in his favor to impose the penalty
in its minimum period.
WHEREFORE, the appealed judgment of the court a quo is hereby MODIFIED by finding
accused-appellant George Decena y Rocaberte guilty of the crime of homicide, and imposing
upon him an indeterminate sentence of eight (8) years of prision mayor, as minimum, to fourteen
(14) years and eight (8) months of reclusion temporal, as maximum. In all other respects, the
said judgment is hereby AFFIRMED.

16
[G.R. No. 128359. December 6, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO E. DELA
CRUZ, accused-appellant.
DECISION
VITUG, J.:
For automatic review is the decision, dated 27 November 1996, of the Regional Trial
Court, Branch 27, of Cabanatuan City, which has sentenced to death Roberto E. de la Cruz for
Qualified Illegal Possession of Firearm and Ammunition with Homicide.
The information charging the accused with the offense, to which he pled not guilty when
arraigned, read:
That on or about the 27th day of May, 1996, in the City of Cabanatuan, Republic of the
Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, with
intent to kill, did then and there, willfully, unlawfully and feloniously attack, assault and use
personal violence upon the person of one DANIEL MACAPAGAL, by shooting the latter with
the use of an unlicensed Caliber .38 snub nose firearm, with Serial No. 120958, thereby
inflicting upon him gunshot wounds on different parts of his body, which caused also his
death.[1]
The facts relied upon by the trial court in its judgment were narrated by the Office of the
Solicitor General in the Peoples brief.
The victm Daniel Macapagal, a married man, had been a live-in partner of prosecution witness
Ma. Luz Perla San Antonio for about two to three years before San Antonio took appellant
Roberto de la Cruz, widower, as lover and live-in partner. At the time of the incident on May
27, 1996, appellant and San Antonio were living in a house being rented by San Antonio at 094
Valino District, Magsaysay Norte, Cabanatuan City (pp. 2-3, TSN, July 6, 1996).
At around 6:00 oclock in the evening on May 27, 1996, San Antonio and appellant were resting
in their bedroom when they heard a car stop in front of their house and later knocks on their
door. San Antonio opened the front door and she was confronted by Macapagal who made his
way inside the house holding a gun in his hand, despite San Antonios refusal to let him in. He
seemed to be looking for something or somebody as Macapagal walked passed San Antonio and
inspected the two opened bedrooms of the house. He then went to the close bedroom where the
appellant was and banged at the door with his gun while yelling Come out. Come out (p. 4,
Ibid.).Appellant then opened the door but he was greeted by Macapagals gun which was pointed
at him. Appellant immediately closed the door while Macapagal continued banging at it. When
appellant again opened the door moments later, he was himself armed with a .38 caliber
revolver. The two at that instant immediately grappled for each others firearm. A few moments
later shots were heard. Macapagal fell dead on the floor.
Appellant told San Antonio to call the police on the phone. After a few minutes police officers
arrived at the scene. They saw the dead body of Macapagal slumped on the floor holding a
gun. San Antonio met them on the door and appellant was by then sitting. He stood up to pick
his .38 caliber revolver which he surrendered to SPO3 Felix Castro, Jr. Appellant told the police
that he shot Macapagal in self-defense and went with them to the police station.
Dr. Jun Concepcion, Senior Medical Officer of the Cabanatuan City General Hospital,
performed an autopsy on the cadaver of Macapagal and submitted a report thereon (Exhibit H).
Macapagal sustained four (4) gunshot wounds. Three of the wounds were non-penetrating or
those that did not penetrate a vital organ of the human body. They were found in the upper jaw
of the left side of the face, below the left shoulder and the right side of the waist. Another
gunshot wound on the left side of the chest penetrated the heart and killed Macapagal instantly.
It was later found by the police that the firearm used by Macapagal was a 9mm caliber pistol. It
had one magazine loaded with twelve (12) live ammunition but an examination of the gun
showed that its chamber was not loaded.
Macapagal had a license to carry said firearm. On the other hand, appellant, who denied
ownership of the .38 caliber revolver he used, had no license therefore. [2]
Unmoved by the claim of self-defense invoked by the accused, the trial court pronounced
a judgment of guilt and handed a death sentence.
WHEREFORE, premises considered, the Court finds and so declares the accused ROBERTO
DELA CRUZ guilty beyond reasonable doubt of the crime of Qualified Illegal Possession of
Firearm and Ammunition with Homicide, which is penalized under Presidential Decree 1866,
Sec. 1, and he is hereby sentenced to suffer death; he is, likewise ordered to indemnify the heirs
of the deceased victim in the sum of P50,000.00; to pay actual damages in the sum of P65,000.00
representing burial and interment expenses; and the sum of P2,865,600.00 representing loss of
income.[3]
In his plea to this Court, accused-appellant submits that the decision of the court a quo is
bereft of factual and legal justification.
When self-defense is invoked, the burden of evidence shifts to the accused to show that
the killing has been legally justified.[4] Having owned the killing of the victim, the accused
should be able to prove to the satisfaction of the court the elements of self-defense in order that
the might be able to rightly avail himself of the extenuating circumstance. [5] He must discharge
this burden by clear and convincing evidence. When successful, an otherwise felonious deed
would be excused mainly predicated on the lack of criminal intent of the accused. Self-defense
requires that there be (1) an unlawful aggression by the person injured or killed by the offender,
(2) reasonable necessity of the means employed to prevent or repel that unlawful aggression,
and (3) lack of sufficient provocation on the part of the person defending himself. [6] All these
conditions must concur.[7]
Here, the Court scarcely finds reversible error on the part of the trial court in rejecting the
claim of self-defense.
Unlawful aggression, a primordial element of self-defense, would presuppose an actual,
sudden and unexpected attack or imminent danger on the life and limb of a person not a mere
threatening or intimidating attitude[8]- but most importantly, at the time the defensive action
was taken against the aggressor. True, the victim barged into the house of accused-appellant
and his live-in partner and, banging at the master bedroom door with his firearm, he yelled,
come out. Accused-appellant, however, upon opening the door and seeing the victim pointing a
gun at him, was able to prevent at this stage harm to himself by promptly closing the door. He
could have stopped there. Instead, accused-appellant, taking his .38 caliber revolver, again
17
opened the bedroom door and, brandishing his own firearm, forthwith confronted the victim. At
this encounter, accused-appellant would be quite hardput to still claim self-defense.[9]
The second element of self-defense would demand that the means employed to quell the
unlawful aggression were reasonable and necessary. The number of the wounds sustained by
the deceased in this case would negate the existence of this indispensable component of self-
defense.[10] The autopsy report would show that the victim sustained four gunshot wounds
1. Gunshot wound on the (L) shoulder as point of entry with trajectory toward the (L) supra-
scapular area as point to exit (through-through);
2. Gunshot wound on the abdomen side laterally as point of entry (+) for burned gun powder
superficially with trajectory towards on the same side as point of exit, through-through;
3. Gunshot wound on the anterior chest (L) mid-clavicular line, level 5th ICS as point of entry
with trajectory towards the (L) flank as point of exit (through-through) Internally: penetrating
the heart (through-through) anterior then posterior then (L) hemidia prhagm and stomach; and
4. Lacerated wound linear inch in length (L) cheek area[11] -
which would, in fact, indicate a determined effort to kill.[12]
It would be essential, finally, for self-defense to be aptly invoked that there be lack of
sufficient provocation on the part of the person defending himself. When accused-appellant,
opening the bedroom door the second time confronted, instead of merely taking precautionary
measures against, the victim with his own gun he had taken from the cabinet, accused-appellant
could no longer correctly argue that there utterly was no provocation on his part.
The elements of illegal possession of firearm are (1) the existence of the subject firearm,
(2) the ownership or possession of the firearm, and (3) the absence of the corresponding license
therefor.[13]
Accused-appellant claims that he did not have animus possidendi in the use and
possession of the .38 caliber revolver since he has used it for just a fleeting moment to defend
himself. This assertion is not supported by the evidence. Apparently, the subject revolver has
all the while been kept in the house of accused-appellant and his live-in partner. Accused-
appellant himself has thusly testified:
Q: When for the first time did you see that firearm inside the drawer of Candy?
A: Since the last week of April, sir.
Q: Did you ask Candy why she was in possession of that gun?
A: Once I opened her drawer and I asked her who owns that gun, sir.
Q: And what was her reply as to who owns that gun?
A: According to her that firearm was used as payment by a group of persons who were her
customers at the Videoke, sir.
Q: And what else did Candy tell you about that firearm, if you know?
A: She also told me that we can use that gun for protection, sir. [14]
The trial court has erred, however, in imposing the death penalty on accused-
appellant. Presidential Decree No. 1866 is already amended by Republic Act No. 8294. Section
1, third paragraph, of the amendatory law provides that if homicide or murder is committed with
the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an
aggravating circumstance. The provision is clear, and there would be no need to still belabor the
matter.[15]
The mitigating circumstance of voluntary surrender should be considered in favor of
accused-appellant. Immediately following the shooting incident, he instructed his live-in partner
to call the police and report the incident.He waited for the arrival of the authorities and readily
acknowledge before them his having been responsible for the shooting of the victim. [16]
The aggravating circumstance of the use of unlicensed firearm being effectively offset by
the mitigating circumstance of voluntary surrender,[17] the penalty prescribed by law for the
offense should be imposed in its medium period.[18] Article 249 of the Revised Penal Code
prescribes the penalty of reclusion temporal in the crime of homicide, the range of which is
twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence
Law, the maximum penalty shall be taken from the medium period of reclusion temporal, i.e.,
from fourteen (14) years, eight (8) months, and one (1) day to seventeen (17) years and four (4)
months, while the minimum shall be taken from the penalty next lower in degree, which
is prision mayor, anywhere in its range of from six (6) years and one (1) day to twelve (12)
years.
The amount of P2,865,600.00 awarded by the trial court as damages for loss of earning
capacity should be modified. The testimony of the victims surviving spouse, Marina Villa Juan
Macapagal, on the earning capacity of her husband Daniel Macapagal sufficiently established
the basis for making possible such an award.[19] The deceased was 44 years old at the time of
his death in 1996, with a gross monthly income of P9,950.00. [20] In accordance with the
American Expectancy Table of Mortality adopted in several cases[21] decided by this Court, the
loss of his earning capacity should be calculated thusly:
Gross less living
Net earning capacity (x) = life expectancy x annual - expenses
Income (50% of gross
annual income)
or
x = 2(80-44)X[119,400.00 - 59,700.00]
3
x = 24 x 59,700.00
x = P1,432,800.00
===========
WHEREFORE, the decision appealed from is MODIFIED. Accused-appellant
ROBERTO DELA CRUZ y ESGUERRA is hereby held guilty of HOMICIDE with the use of
an unlicensed firearm, an aggravating circumstance that is offset by the mitigating circumstance
of voluntary surrender, and he is accordingly sentenced to an indeterminate penalty of nine (9)
years and one (1) day of prision mayor as minimum to sixteen (16) years and one (1) day
of reclusion temporal as maximum. The award of P2,865,600.00 for loss of earning is reduced
to P1,432,800.00. In other respects, the judgment of the trial court is AFFIRMED.
In the service of his sentence, accused-appellant shall be credited with the full time of his
preventive detention if they have agreed voluntarily and in writing to abide the same disciplinary
rules imposed upon convicted prisoners pursuant to Article 29 of the Revised Penal Code.
18
C.A. No. 384 February 21, 1946
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.
Jose Ma. Recto for appellant.
Assistant Solicitor General Enriquez and Solicitor Palma for appellee..
DE JOYA, J.:
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance of
Tayabas, for the crime of murder, of which Nicolas Jaurigue was acquitted, but defendant
Avelina Jaurigue was found guilty of homicide and sentenced to an indeterminate penalty
ranging from seven years, four months and one day of prision mayor to thirteen years, nine
months and eleven days of reclusion temporal, with the accessory penalties provided by law, to
indemnify the heirs of the deceased, Amando Capina, in the sum of P2,000, and to pay one-half
of the costs. She was also credited with one-half of the period of preventive imprisonment
suffered by her.
From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court of Appeals
for Southern Luzon, and in her brief filed therein on June 10, 1944, claimed
(1) That the lower court erred in not holding that said appellant had acted in the
legitimate defense of her honor and that she should be completely absolved of all
criminal responsibility;
(2) That the lower court erred in not finding in her favor the additional mitigating
circumstances that (a) she did not have the intention to commit so grave a wrong as
that actually committed, and that (b) she voluntarily surrendered to the agents of the
authorities; and
(3) That the trial court erred in holding that the commission of the alleged offense was
attended by the aggravating circumstance of having been committed in a sacred place.
The evidence adduced by the parties, at the trial in the court below, has sufficiently established
the following facts:
That both the defendant and appellant Avelina Jaurigue and the deceased Amado Capina lived
in the barrio of Sta. Isabel, City of San Pablo, Province of Laguna; that for sometime prior to
the stabbing of the deceased by defendant and appellant, in the evening of September 20, 1942,
the former had been courting the latter in vain, and that on one occasion, about one month before
that fatal night, Amado Capina snatched a handkerchief belonging to her, bearing her nickname
"Aveling," while it was being washed by her cousin, Josefa Tapay.
On September 13, 1942, while Avelina was feeding a dog under her house, Amado approached
her and spoke to her of his love, which she flatly refused, and he thereupon suddenly embraced
and kissed her and touched her breasts, on account of which Avelina, resolute and quick-
tempered girl, slapped Amado, gave him fist blows and kicked him. She kept the matter to
herself, until the following morning when she informed her mother about it. Since then, she
armed herself with a long fan knife, whenever she went out, evidently for self-protection.
On September 15, 1942, about midnight, Amado climbed up the house of defendant and
appellant, and surreptitiously entered the room where she was sleeping. He felt her forehead,
evidently with the intention of abusing her. She immediately screamed for help, which
awakened her parents and brought them to her side. Amado came out from where he had hidden
under a bed in Avelina's room and kissed the hand of Nicolas Jaurigue, her father, asking for
forgiveness; and when Avelina's mother made an attempt to beat Amado, her husband prevented
her from doing so, stating that Amado probably did not realize what he was doing. Nicolas
Jaurigue sent for the barrio lieutenant, Casimiro Lozada, and for Amado's parents, the following
morning. Amado's parents came to the house of Nicolas Jaurigue and apologized for the
misconduct of their son; and as Nicolas Jaurigue was then angry, he told them to end the
conversation, as he might not be able to control himself.
In the morning of September 20, 1942, Avelina received information that Amado had been
falsely boasting in the neighborhood of having taken liberties with her person and that she had
even asked him to elope with her and that if he should not marry her, she would take poison;
and that Avelina again received information of Amado's bragging at about 5 o'clock in the
afternoon of that same day.
At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas Jaurigue went
to the chapel of the Seventh Day Adventists of which he was the treasurer, in their barrio, just
across the provincial road from his house, to attend religious services, and sat on the front bench
facing the altar with the other officials of the organization and the barrio lieutenant, Casimiro
Lozada. Inside the chapel it was quite bright as there were electric lights.
Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival of her
father, also for the purpose of attending religious services, and sat on the bench next to the last
one nearest the door. Amado Capina was seated on the other side of the chapel. Upon observing
the presence of Avelina Jaurigue, Amado Capina went to the bench on which Avelina was sitting
and sat by her right side, and, without saying a word, Amado, with the greatest of impudence,
placed his hand on the upper part of her right thigh. On observing this highly improper and
offensive conduct of Amado Capina, Avelina Jaurigue, conscious of her personal dignity and
honor, pulled out with her right hand the fan knife marked Exhibit B, which she had in a pocket
of her dress, with the intention of punishing Amado's offending hand. Amado seized Avelina's
right hand, but she quickly grabbed the knife with her left hand and stabbed Amado once at the
base of the left side of the neck, inflicting upon him a wound about 4 1/2 inches deep, which
was necessarily mortal. Nicolas Jaurigue, who was seated on one of the front benches, saw
Amado bleeding and staggering towards the altar, and upon seeing his daughter still holding the
bloody knife, he approached her and asked: "Why did you do that," and answering him Avelina
said: "Father, I could not endure anymore." Amado Capina died from the wound a few minutes
later. Barrio lieutenant Casimiro Lozada, who was also in the same chapel, approached Avelina
and asked her why she did that, and Avelina surrendered herself, saying: "Kayo na po ang bahala
sa aquin," meaning: "I hope you will take care of me," or more correctly, "I place myself at your
disposal." Fearing that Amado's relatives might retaliate, barrio lieutenant Lozada advised
Nicolas Jaurigue and herein defendant and appellant to go home immediately, to close their
doors and windows and not to admit anybody into the house, unless accompanied by him. That
father and daughter went home and locked themselves up, following instructions of the barrio
lieutenant, and waited for the arrival of the municipal authorities; and when three policemen
arrived in their house, at about 10 o'clock that night, and questioned them about the incident,
defendant and appellant immediately surrendered the knife marked as Exhibit B, and informed
said policemen briefly of what had actually happened in the chapel and of the previous acts and
conduct of the deceased, as already stated above, and went with said policemen to the police
headquarters, where her written statements were taken, and which were presented as a part of
the evidence for the prosecution.
The high conception of womanhood that our people possess, however humble they may be, is
universal. It has been entertained and has existed in all civilized communities.
A beautiful woman is said to be a jewel; a good woman, a treasure; and that a virtuous woman
represents the only true nobility. And they are the future wives and mothers of the land. Such
are the reasons why, in the defense of their honor, when brutally attacked, women are permitted
to make use of all reasonable means available within their reach, under the circumstances.
Criminologists and courts of justice have entertained and upheld this view.
19
On the other hand, it is the duty of every man to protect and show loyalty to womanhood, as in
the days of chivalry. There is a country where women freely go out unescorted and, like the
beautiful roses in their public gardens, they always receive the protection of all. That country is
Switzerland.
In the language of Viada, aside from the right to life on which rests the legitimate defense of
our own person, we have the right to property acquired by us, and the right to honor which is
not the least prized of our patrimony (1 Viada, Codigo Penal, 5th ed., pp. 172, 173).
The attempt to rape a woman constitutes an unlawful aggression sufficient to put her in a state
of legitimate defense, inasmuch as a woman's honor cannot but be esteemed as a right as
precious, if not more, than her very existence; and it is evident that a woman who, thus
imperiled, wounds, nay kills the offender, should be afforded exemption from criminal liability,
since such killing cannot be considered a crime from the moment it became the only means left
for her to protect her honor from so great an outrage (1 Viada, Codigo Penal, 5th ed., p. 301;
People vs. Luague and Alcansare, 62 Phil., 504). .
As long as there is actual danger of being raped, a woman is justified in killing her aggressor,
in the defense of her honor. Thus, where the deceased grabbed the defendant in a dark night at
about 9 o'clock, in an isolated barrio trail, holding her firmly from behind, without warning and
without revealing his identity, and, in the struggle that followed, touched her private parts, and
that she was unable to free herself by means of her strength alone, she was considered justified
in making use of a pocket knife in repelling what she believed to be an attack upon her honor,
and which ended in his death, since she had no other means of defending herself, and
consequently exempt from all criminal liability (People vs. De la Cruz, 16 Phil., 344).
And a woman, in defense of her honor, was perfectly justified in inflicting wounds on her
assailant with a bolo which she happened to be carrying at the time, even though her cry for
assistance might have been heard by people nearby, when the deceased tried to assault her in a
dark and isolated place, while she was going from her house to a certain tienda, for the purpose
of making purchases (United States vs. Santa Ana and Ramos, 22 Phil., 249).
In the case, however, in which a sleeping woman was awakened at night by someone touching
her arm, and, believing that some person was attempting to abuse her, she asked who the intruder
was and receiving no reply, attacked and killed the said person with a pocket knife, it was held
that, notwithstanding the woman's belief in the supposed attempt, it was not sufficient
provocation or aggression to justify her completely in using deadly weapon. Although she
actually believed it to be the beginning of an attempt against her, she was not completely
warranted in making such a deadly assault, as the injured person, who turned out to be her own
brother-in-law returning home with his wife, did not do any other act which could be considered
as an attempt against her honor (United States vs. Apego, 23 Phil., 391)..
In the instant case, if defendant and appellant had killed Amado Capina, when the latter climbed
up her house late at night on September 15, 1942, and surreptitiously entered her bedroom,
undoubtedly for the purpose of raping her, as indicated by his previous acts and conduct, instead
of merely shouting for help, she could have been perfectly justified in killing him, as shown by
the authorities cited above..
According to the facts established by the evidence and found by the learned trial court in this
case, when the deceased sat by the side of defendant and appellant on the same bench, near the
door of the barrio chapel and placed his hand on the upper portion of her right thigh, without
her consent, the said chapel was lighted with electric lights, and there were already several
people, about ten of them, inside the chapel, including her own father and the barrio lieutenant
and other dignitaries of the organization; and under the circumstances, there was and there could
be no possibility of her being raped. And when she gave Amado Capina a thrust at the base of
the left side of his neck, inflicting upon him a mortal wound 4 1/2 inches deep, causing his death
a few moments later, the means employed by her in the defense of her honor was evidently
excessive; and under the facts and circumstances of the case, she cannot be legally declared
completely exempt from criminal liability..
But the fact that defendant and appellant immediately and voluntarily and unconditionally
surrendered to the barrio lieutenant in said chapel, admitting having stabbed the deceased,
immediately after the incident, and agreed to go to her house shortly thereafter and to remain
there subject to the order of the said barrio lieutenant, an agent of the authorities (United States
vs. Fortaleza, 12 Phil., 472); and the further fact that she had acted in the immediate vindication
of a grave offense committed against her a few moments before, and upon such provocation as
to produce passion and obfuscation, or temporary loss of reason and self-control, should be
considered as mitigating circumstances in her favor (People vs. Parana, 64 Phil., 331; People
vs. Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86).
Defendant and appellant further claims that she had not intended to kill the deceased but merely
wanted to punish his offending hand with her knife, as shown by the fact that she inflicted upon
him only one single wound. And this is another mitigating circumstance which should be
considered in her favor (United States vs. Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil.,
123).
The claim of the prosecution, sustained by the learned trial court, that the offense was committed
by the defendant and appellant, with the aggravating circumstance that the killing was done in
a place dedicated to religious worship, cannot be legally sustained; as there is no evidence to
show that the defendant and appellant had murder in her heart when she entered the chapel that
fatal night. Avelina is not a criminal by nature. She happened to kill under the greatest
provocation. She is a God-fearing young woman, typical of our country girls, who still possess
the consolation of religious hope in a world where so many others have hopelessly lost the faith
of their elders and now drifting away they know not where.
The questions raised in the second and third assignments of error appear, therefore, to be well
taken; and so is the first assignment of error to a certain degree.
In the mind of the court, there is not the least doubt that, in stabbing to death the deceased
Amado Capina, in the manner and form and under the circumstances above indicated, the
defendant and appellant committed the crime of homicide, with no aggravating circumstance
whatsoever, but with at least three mitigating circumstances of a qualified character to be
considered in her favor; and, in accordance with the provisions of article 69 of the Revised Penal
Code, she is entitled to a reduction by one or two degrees in the penalty to be imposed upon her.
And considering the circumstances of the instant case, the defendant and appellant should be
accorded the most liberal consideration possible under the law (United States vs. Apego, 23
Phil., 391; United States vs. Rivera, 41 Phil., 472; People vs. Mercado, 43 Phil., 950)..
The law prescribes the penalty of reclusion temporal for the crime of homicide; and if it should
be reduced by two degrees, the penalty to be imposed in the instant case is that of prision
correccional; and pursuant to the provisions of section 1 of Act No. 4103 of the Philippine
Legislature, known as the Indeterminate Sentence Law, herein defendant and appellant should
be sentenced to an indeterminate penalty ranging from arresto mayor in its medium degree,
to prision correccional in its medium degree. Consequently, with the modification of judgment
appealed from, defendant and appellant Avelina Jaurigue is hereby sentenced to an
indeterminate penalty ranging from two months and one day of arresto mayor, as minimum, to
two years, four months, and one day 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
20
also be given the benefit of 1/2 of her preventive imprisonment, and the knife marked Exhibit 'No, gademit, proceed, go ahead.' Appellant apparently lost his equilibrium
B ordered confiscated. So ordered 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.).
G.R. Nos. L-33466-67 April 20, 1983
It appears, however, that this incident is intertwined with the long drawn out legal battle between
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
the Fleischer and Co., Inc. of which deceased Fleischer was the secretary-treasurer and deceased
vs.
Rubia the assistant manager, on the one hand, and the land settlers of Cotabato, among whom
MAMERTO NARVAEZ, defendant-appellant.
was appellant.
The Solicitor General for plaintiff-appellee.
From the available records of the related cases which had been brought to the Court of Appeals
Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.
(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:
MAKASIAR, J.:
Appellant was among those persons from northern and central Luzon who went to Mindanao in
This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch I,
1937 and settled in Maitum, a former sitio of Kiamba and now a separate municipality of South
in Criminal Cases Nos. 1815 and 1816 for murder which, after a joint trial, resulted in the
Cotabato. He established his residence therein, built his house, cultivated the area, and was
conviction of the accused in a decision rendered on September 8, 1970, with the following
among those who petitioned then President Manuel L. Quezon to order the subdivision of the
pronouncement:
defunct Celebes Plantation and nearby Kalaong Plantation totalling about 2,000 hectares, for
Thus, we have a crime of MURDER qualified by treachery with the
distribution among the settlers.
aggravating circumstance of evident premeditation offset by the mitigating
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American
circumstance of voluntary surrender. The proper penalty imposable,
landowner in Negros Oriental, filed sales application No. 21983 on June 3, 1937 over the same
therefore, is RECLUSION PERPETUA (Arts. 248 and 64, Revised Penal
area formerly leased and later abandoned by Celebes Plantation Company, covering 1,017.2234
Code).
hectares.
Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of
Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in
the crime of murder,
1941 but the survey report was not submitted until 1946 because of the outbreak of the second
(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION
world war. According to the survey, only 300 hectares Identified as Lots Nos. 22, 26 and 38,
PERPETUA, to indemnify the heirs of the deceased Davis Q. Fleischer in
Ps. 176 Kiamba, were set aside for Sales Application No. 21983, while the rest were subdivided
the sum of P 12,000.00 as compensatory damages, P 10,000.00 as moral
into sublots of 5 to 6 hectares each to be distributed among the settlers (pp. 32-33, G.R. No. L-
damages, P 2,000.00 as attorney's fees, the offended party having been
45504).
represented by a private prosecutor, and to pay the costs;
The 300 hectares set aside for the sales application of Fleischer and Company was declared open
(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION
for disposition, appraised and advertised for public auction. At the public auction held in Manila
PERPETUA, to indemnify the heirs of the deceased Flaviano Rubia in the
on August 14, 1948, Fleischer and Company was the only bidder for P6,000.00. But because of
sum of P12,000.00 as compensatory damages, P10,000.00 as moral
protests from the settlers the corresponding award in its favor was held in abeyance, while an
damages, P2,000.00 as attorney's fees, the offended party having been
investigator was sent by the Director of Lands to Kiamba in the person of Atty. Jose T. Gozon
represent by a private prosecutor, and to pay the costs (p. 48, rec.).
Atty. Gozon came back after ten days with an amicable settlement signed by the representative
The facts are summarized in the People's brief, as follows:
of the settlers. This amicable settlement was later repudiated by the settlers, but the Director of
At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus
Lands, acting upon the report of Atty. Gozon, approved the same and ordered the formal award
Verano and Cesar Ibanez together with the two deceased Davis Fleischer
of the land in question to Fleischer and Company. The settlers appealed to the Secretary of
and Flaviano Rubia, were fencing the land of George Fleischer, father of
Agriculture and Natural Resources, who, however, affirmed the decision in favor of the
deceased Davis Fleischer. The place was in the boundary of the highway
company.
and the hacienda owned by George Fleischer. This is located in the
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of Cotabato
municipality of Maitum, South Cotabato. At the place of the fencing is the
which then consisted only of one sala, for the purpose of annulling the order of the Secretary of
house and rice drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n.,
Agriculture and Natural Resources which affirmed the order of the Director of Lands awarding
Pieza II). At that time, appellant was taking his rest, but when he heard that
the contested land to the company. The settlers as plaintiffs, lost that case in view of the amicable
the walls of his house were being chiselled, he arose and there he saw the
settlement which they had repudiated as resulting from threats and intimidation, deceit,
fencing going on. If the fencing would go on, appellant would be prevented
misrepresentation and fraudulent machination on the part of the company. They appealed to the
from getting into his house and the bodega of his ricemill. So he addressed
Court of Appeals (CA-G.R. No. 28858-R) which likewise affirmed on August 16, 1965 the
the group, saying 'Pare, if possible you stop destroying my house and if
decision of the Court of First Instance in favor of the company.
possible we will talk it over what is good,' addressing the deceased Rubia,
who is appellant's compadre. The deceased Fleischer, however, answered:
21
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.
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
22
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 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).
23
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.
CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST
FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST
22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.
24
People vs. Narvaez, 121 SCRA 389 (1983)
FACTS: Mamerto Narvaez has been convicted of murder (qualified by treachery) of David
Fleischer and Flaviano Rubia. On August 22, 1968, Narvaez shot Fleischer and Rubia during
the time the two were constructing a fence that would prevent Narvaez from getting into his
house and rice mill. The defendant was taking a nap when he heard sounds of construction and
found fence being made. He addressed the group and asked them to stop destroying his house
and asking if they could talk things over. Fleischer responded with "No, gadamit, proceed, go
ahead." Defendant lost his "equilibrium," and shot Fleisher with his shotgun. He also shot Rubia
who was running towards the jeep where the deceased's gun was placed. Prior to the
shooting, Fleischer and Co. (the company of Fleischer's family) was involved in a legal battle
with the defendant and other land settlers of Cotabato over certain pieces of property. At the
time
of the shooting, the civil case was still pending for annulment (settlers wanted granting of
property to Fleisher and Co. to be annulled). At time of the shooting, defendant had leased his
property from Fleisher (though case pending and ownership uncertain) to avoid trouble. On June
25, defendant received letter terminating contract because he allegedly didn't pay rent.
He was given 6 months to remove his house from the land. Shooting was barely 2 months after
letter. Defendant claims he killed in defense of his person and property. CFI ruled that
Narvaez was guilty. Aggravating circumstances of evident premeditation offset by the
mitigating circumstance of voluntary surrender. For both murders, CFI sentenced him to
reclusion perpetua, to indemnify the heirs, and to pay for moral damages.
ISSUES:
1. Whether or not CFI erred in convicting defendant-appellant despite the fact that he acted in
defense of his person.
No. The courts concurred that the fencing and chiselling of the walls of the house of the
defendant was indeed a form of aggression on the part of the victim. However, this
aggression was not done on the person of the victim but rather on his rights to property. On the
first issue, the courts did not err. However, in consideration of the violation of property rights,
the courts referred to Art. 30 of the civil code recognizing the right of owners to close and fence
their land.
Although is not in dispute, the victim was not in the position to subscribe to the article because
his ownership of the land being awarded by the government was still pending, therefore putting
ownership into question. It is accepted that the victim was the original aggressor.
2. WON the court erred in convicting defendant-appellant although he acted in defence of his
rights.
Yes. However, the argument of the justifying circumstance of self-defense is applicable only if
the 3 requirements are fulfilled. Art. 11(1) RPC enumerates these requisites:
Unlawful aggression. In the case at bar, there was unlawful aggression towards
appellant's property rights. Fleisher had given Narvaez 6 months and he should have left him in
peace before time was up, instead of chiseling Narvaez's house and putting up fence. Art. 536
of the Civil Code also provides that possession may not be acquired through force or
intimidation; while Art. 539 provides that every possessor has the right to be respected in his
possession
Reasonable necessity of means employed to prevent or repel attack. In the case, killing
was disproportionate to the attack.
Lack of sufficient provocation on part of person defending himself. Here, there was
no provocation at all since he was asleep
Since not all requisites present, defendant is credited with the special mitigating circumstance
of incomplete defense, pursuant to Art. 13(6) RPC. These mitigating circumstances are:
voluntary surrender and passion and obfuscation (read p. 405 explanation) Crime is homicide
(2 counts) not murder because treachery is not applicable on account of provocation by the
deceased. Also, assault was not deliberately chosen with view to kill since slayer acted
instantaneously. There was also no direct evidence of planning or preparation to kill. Art. 249
RPC: Penalty for homicide is reclusion temporal. However, due to mitigating circumstances and
incomplete defense, it can be lowered three degrees (Art. 64) to arrestomayor.
3. WON he should be liable for subsidiary imprisonment since he is unable to pay the civil
indemnity due to the offended party.
No. He is not liable to be subsidiarily imprisoned for nonpayment of civil indemnity. RA 5465
made the provisions of Art. 39 applicable to fines only and not to reparation of damage caused,
indemnification of consequential damages and costs of proceedings. Although it was enacted
only after its conviction, considering that RA 5465 is favorable to the accused who is not a
habitual delinquent, it may be given retroactive effect pursuant to Art. 22 of the RPC.
Judgment: Defendant guilty of homicide but w/ mitigating circumstances and extenuating
circumstance of incomplete self defense. Penalty is 4 months arresto mayor and to indemnify
each group of heirs 4,000 w/o subsidiary imprisonment and w/o award for moral damages.
Appellant has already been detained 14 years so his immediate release is ordered.
Gutierrez, dissenting. Defense of property can only be invoked when coupled with form of
attack on person defending property. In the case at bar, this was not so. Appellant should then
be sentenced to prision mayor. However, since he has served more than that, he should be
released.
25

G.R. No. 168818 March 9, 2007
NILO SABANG, Petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
TINGA, J.:
On January 17, 1997, in the midst of a drinking spree on the eve of the fiesta in Liloan, Ormoc
City, an intoxicated Nicanor Butad uttered the ominous words "I will shoot you" to Randy
Sabang, to the horror of young Sabang's father, Nilo, and the other onlookers. Within moments,
Butad himself lay dead from four gunshot wounds on his body. Nilo Sabang, petitioner herein,
who was charged with and later convicted for the homicide, admits to the killing of Butad, but
claims
that the shooting was accidental and done as a means of defending his son. An array of witnesses
for the prosecution and the defense provides a competing set of particulars as to the shooting.
Ultimately, the prosecutions version, supported by the physical evidence, stands out as the
truth.
This much is admitted. At around 6:30 p.m. on that fateful night, petitioner and Butad were
having drinks together with spouses Cruz and Andresa Villamor outside the store of Melania
Sombilon in Sitio Landing, Barangay Liloan, Ormoc City. 1 Butad, a civilian agent with the
Philippine National Police, was then armed with a .38-caliber revolver which was tucked in his
holster. In the midst of the drinking spree, Randy Sabang suddenly and unexpectedly appeared
before the group. His appearance triggered a negative reaction from Butad, who then uttered the
words "I will shoot you" to Randy Sabang.2
Certain circumstances attaching to this evident threat are disputed, as are the events that
consequently followed. What is certain is that shortly afterwards, Butad lay dead, having
sustained four (4) gunshot wounds from his own revolver. Petitioner appears to have fled but
voluntarily surrendered thereafter, turning over the revolver as he surrendered. 3
Photographs of Butad as he lay dead on the scene were presented in evidence,4 as was the official
report on his autopsy, prepared by the City Health Office of Ormoc City. The autopsy
report5 indicated the following findings:
GENERAL SURVEY:
Examined a fairly nourished/fairly developed male cadaver with approximate height of 165 cm
& weight of 65 kg in state of rigor mortis.
FINDINGS:
1. Bullet wound 1.0 x 0.5 cm at anterior chest wall, 14 cm from midline, right, along
3rd intercostal space anterior axillary line penetrating thoracic cavity lacerating upper
lobe of right lung.
2. Bullet wound 0.7 x 0.5 cm at 4th intercostal space mid-axillary line, right,
penetrating thoracic cavity lacerating upper lobe of right lung.
3. Bullet wound 1.5 x 0.7 cm at distal 3rd lateral aspect of right arm injuring skin &
muscles.
4. Bullet wound 0.7 cm x 0.7 cm at mid vertebral column fracturing spine of 8th
thoracic vertebra.
CAUSE OF DEATH:
Hypovolemia 2 to multiple bullet wound.
During arraignment, petitioner pleaded innocence, but during the presentation of the evidence
for the defense, he claimed to have acted in defense of a relative. Petitioner and four (4) other
witnesses testified for the defense. The following facts were sought to be established by
petitioner:
By the time Butad had joined what was to be his last drinking spree, he was already in a
belligerent mood. Earlier that afternoon, he
had been chasing after Ramil Perez when the latter demanded payment for a bet Butad had lost
over a cockfight.6
The chase was witnessed by Celso Pepito, who would testify for the defense.7 As to the shooting
itself, testifying for the defense were petitioner himself, the storekeeper Sombilon, and an
eyewitness, Laurito Caparoso, who was situated right across the road when the shooting
occurred.
Sombilon testified that when Butad told Randy Sabang, "I will shoot you," the deceased already
had his revolver aimed at Randy.8 At this point, Andresa Villamor, a niece of the deceased, told
Butad, "Please don't[,] tiyo, he's the son of Nilo."9 Petitioner and Caparoso also testified that at
that time, Butad had his revolver pointed at Randy.10Petitioner claimed that he then grabbed the
arm of Butad, attempting to twist it toward his body and away from his son. As they were
grappling and the revolver was pointed towards the body of
Butad, petitioner claimed he heard gunshots, and only after the shots were fired was he able to
"take the gun" from Butad.11 Petitioners account is substantially corroborated by Caparoso.12
This version of the shooting, however, stands in sharp contrast to that presented by the
prosecution.
Natividad Payud, an eyewitness to the incident, testified that while the group of the deceased
Butad, petitioner, and the spouses Cruz and Andresa Villamor was having a drinking spree,
Randy suddenly entered the scene. Butad, appearing surprised, thrust a glass of Tanduay near
Randys mouth and uttered the words, "I will shoot you." Payud is certain that at this point,
Butad was not holding any gun.13 Andresa Villamor, another eyewitness to the incident,
confirmed Payuds testimony that Butad was holding a glass and not a gun when he uttered
those words.14
Petitioner reacted to Butads statement saying, "Just try to shoot my child because Ill never
fight for him because he is a spoiled brat."15 Andresa Villamor then chided Butad and said, "Do
not say that tiyo[,] because its [sic] the son of Nilo Sabang."16
Unexpectedly, a person appeared on the scene and punched Butad causing the latter to fall down
lying partially on his back. Petitioner, who was then sitting across Butad, stood up and pulled
the gun tucked in Butads waist. He pointed the gun at Butad and fired a shot at the latters
chest.17 Payud and Andresa Villamor both saw petitioner fire two (2) more shots near Butads
chest.18
In a Judgment19 dated November 22, 1999, the trial court convicted petitioner principally on the
strength of the testimony of Dr. Edilberto P. Calipayan, the physician who conducted the post
mortem examination of Butads body, to the effect that the absence of powder burns indicates
that the gunshots were fired at a distance of more than 10 inches from the victims body and not
close range as claimed by petitioner.20
The Court of Appeals affirmed petitioners conviction in a Decision21 dated August 16, 2004
and denied reconsideration in a Resolution22 dated July 6, 2005.
In this Petition,23 petitioner prays for his acquittal contending that he acted in defense of his son,
a justifying circumstance under Art. 1124 of the Revised Penal Code. He claims that Butads act
of aiming a gun at his son while uttering the words "I will shoot you" was an aggression of the
most imminent kind which prompted him to try to wrestle the gun from Butad leading to the
accidental firing of the fatal shots.
Petitioner theorizes that the fact that Butad was then fully clothed could have accounted for the
absence of powder burns on Butads body. He disputes the trial courts finding that the wounds
26
would have looked oblique had the shots been fired during a struggle, claiming that round
entrance wounds could likewise be produced in near contact fire.
He further avers that Payud was not really an eyewitness to the event, pointing to the testimony
of Benjamin Mahusay that he and Payud were already out of Sitio Landing and were heading
home when they heard the gunshots. Likewise, Andresa Villamors testimony is allegedly
confined to seeing Butad sprawled on the ground.
The Office of the Solicitor General insists on petitioners conviction but asks that the award of
moral damages be reduced from 100,000.00 to 50,000.00. 25
We shall first resolve the question of whether petitioners insistence on the justifying
circumstance of defense of relative deserves merit.
In order to successfully claim that he acted in defense of a relative, the accused must prove the
concurrence of the following requisites: (1) unlawful aggression on the part of the person killed
or injured; (2) reasonable necessity of the means employed to prevent or repel the unlawful
aggression; and (3) the person defending the relative had no part in provoking the assailant,
should any provocation been given by the relative attacked. 26 Unlawful aggression is a
primary and indispensable requisite without which defense of relative, whether complete or
otherwise, cannot be validly invoked.27
It is well-settled in this jurisdiction that once an accused has admitted that he inflicted the fatal
injuries on the deceased, it is incumbent upon him in order to avoid criminal liability, to prove
the justifying circumstance claimed by him with clear, satisfactory and convincing evidence. He
cannot rely on the weakness of the prosecution but on the strength of his own evidence, "for
even if the evidence of the prosecution were weak it could not be disbelieved after the accused
himself had admitted the killing." Thus, petitioner must establish with clear and convincing
evidence that the killing was justified, and that he incurred no criminal liability therefor. 28
Unlawful aggression must be clearly established by the evidence. In this case, there is a
divergence in the testimonies of the prosecution and defense witnesses as to whether Butad
aimed a gun at petitioners son as he uttered the words "I will shoot you." With this conflict
emerges the question of whether petitioner sensed an imminent threat to his sons life. Payud
unequivocally testified that petitioner even dismissed Butads utterance saying, "Just try to shoot
my child because Ill never fight for him because he is a spoiled brat."
This indicates to us that petitioner did not consider Butads words a threat at all.
These circumstances led the trial court to conclude that there was no unlawful aggression on the
part of Butad which could have precipitated petitioners actions. This finding, affirmed by the
Court of Appeals, is conclusive on the Court barring any showing of any arbitrariness or
oversight of material facts that could change the result.29
Furthermore, the presence of four (4) gunshot wounds on Butads body negates the claim that
the killing was justified but instead indicates a determined effort to kill him. Even assuming that
it was Butad who initiated the attack, the fact that petitioner was able to wrest the gun from him
signifies that the aggression which Butad had started already ceased. Petitioner became the
unlawful aggressor when he continued to shoot Butad even as he already lay defenseless on the
ground.30
On this point, the defenses own witness, Caparoso, said in his Counter Affidavit 31 and during
direct examination that after the first shot was fired, he saw petitioner take possession of the gun
as Butad released his hold of it. It was after petitioner already had the gun that Caparoso heard
more gunshots.32 Even petitioner admitted that he had an easy time twisting the hand with which
Butad was supposedly holding his revolver because the latter was already very drunk having
started drinking before noon that day.33
Another crucial point to consider is that the prosecutions theory is consistent with the physical
evidence.
The distance from which a shot is fired affects the nature and extent of the injury caused on the
victim. In close range fire, the injury is not only due to the missile but also due to the pressure
of the expanded gases, flame and other solid products of combustion. In
contrast, distant fire usually produces the characteristic effect of the bullet alone. 34 A shot fired
from a distance of more than 60 cm or about two (2) feet does not produce the burning, smudging
or tattooing typically present in loose contact or near fire, short range fire and medium range
fire.35
Powder burns is a term commonly used by physicians whenever there is blackening of the
margin at the entrance of the gunshot wound. The blackening is due to smoke smudging,
gunpowder tattooing and, to a certain extent, burning of the wound margin. 36 As found by the
medico-legal officer in this case, Butads body did not have any powder burns. In response to
the courts queries, Dr. Calipayan testified:
COURTS QUESTIONS
Q Being an expert, is it a scientific fact that every gun burst within ten (10) inches distance as
you said, is it always a fact that there is presence of powder burns?
A It is always a fact, if the caliber of the firearm is higher or I can say, may be .22 caliber as
well as there is a gun powder that burst. If it is fired about less than ten (10) inches from the
surface of the skin, it will always cause powder burns.
Q And in this case, you cannot indicate the presence of powder burns?
A Because I did not find any.37
The fact that there were no powder burns on Butads body indicates that the shots were fired at
a distance of more than two (2) feet and not at close range as the defense suggests. Moreover,
Butad sustained four (4) gunshot wounds, three (3) of which were in the chest area,
circumstances which are inconsistent with the defenses theory of accidental firing. 38
On the credibility of the prosecutions witnesses, the defense questions Payuds testimony
averring that its witness, Benjamin Mahusay, testified that he and Payud were already on their
way home
when they heard the gunshots. According to Mahusay, he attended a cockfight which ended at
5 oclock in the afternoon of January 17, 1997. He went home afterwards and claimed to have
met Payud on the way home at around 5 in the afternoon.39 It was at this time that he and Payud
supposedly heard gunshots.
Mahusays account, however, conflicts with the established fact that Butad was shot to death at
around 6:30 that night. His testimony all the more loses significance in the face of Payuds
compelling testimony that she went back to Sitio Landing to fetch her children and witnessed
the killing.40
Moreover, it is not true, as the defense insists, that Andresa Villamor did not witness the actual
shooting. She unequivocally testified that she turned back and saw Sabang take the pistol from
Butad and point the gun at the latter. She instinctively covered her eyes shouting, "Do not shoot
my uncle!" She uncovered her eyes after hearing the first gunshot, saw petitioner still pointing
the gun at Butad, and watched as petitioner shot Butad two (2) more times. 41
In the final analysis, petitioner failed to demonstrate any reason to disturb the findings and
conclusions of the trial court and the Court of Appeals. His conviction of the crime of homicide
is certain. Under Art. 249 of the Revised Penal Code, homicide is punished by reclusion
temporal. There being one (1) mitigating circumstance of voluntary surrender, the penalty shall
be imposed in its minimum period.42 Applying the benefits of the Indeterminate Sentence Law,
the trial court correctly imposed an indeterminate penalty ranging from eight (8) years and one
(1) day of prision mayor as minimum to twelve (12) years and one (1) day of reclusion
temporal as maximum.
27
As regards the matter of damages, we affirm the award of civil indemnity in the amount of
50,000.00 for the heirs of Butad in line with recent jurisprudence. Civil indemnity is mandatory
and is granted to the heirs of the victim without need of proof other than the commission of the
crime.43 We also affirm the award of 180,000.00 representing loss of earning capacity at a
reasonable life expectancy of three (3) years considering that Butad was already 67 years old at
the time of the incident.44 Likewise affirmed are the award of 50,000.00 as burial expenses
duly proven, attorneys fees of 40,000.00, and appearance fee of 1,000.00 per hearing.
We, however, agree with the Office of the Solicitor General that consistent with pertinent
jurisprudence, the award of moral damages should be reduced from 100,000.00 to
50,000.00.45 Finally, in the absence of any aggravating circumstance, the trial court correctly
withheld the award of exemplary damages.46
WHEREFORE, the instant petition is DENIED for lack of merit. The assailed Decision of the
Court of Appeals dated August 16, 2004 and its Resolution dated July 6, 2005, affirming the
Judgment rendered by the Regional Trial Court dated November 26,
1999, are AFFIRMED with the MODIFICATION that the award of moral damages is reduced
to 50,000.00. Costs against petitioner.
SO ORDERED.

28
G.R. No. 165483 September 12, 2006
RUJJERIC Z. PALAGANAS,1 petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CHICO-NAZARIO, J.:
For what is a man, what has he got?
If not himself, then he has naught.
To say the things he truly feels;
And not the words of one who kneels.
The record shows I took the blows -
And did it my way!
The song evokes the bitterest passions. This is not the first time the song "My Way" 2 has
triggered violent behavior resulting in people coming to blows. In the case at bar, the few lines
of the song depicted what came to pass when the victims and the aggressors tried to outdo each
other in their rendition of the song.
In this Petition for Review on Certiorari3 under Rule 45 of the Revised Rules of Court,
petitioner Rujjeric Z. Palaganas prays for the reversal of the Decision of the Court of Appeals
in CA-G.R. CR No. 22689 dated 30 September 2004,4 affirming with modification the Decision
of the Regional Trial Court (RTC), Branch 46, of Urdaneta, Pangasinan, in Criminal Cases No.
U-9608, U-9609, and U-9610 and U-9634, dated 28 October 1998,5finding petitioner guilty
beyond reasonable doubt of the crime of Homicide under Article 249 of the Revised Penal Code,
and two (2) counts of Frustrated Homicide under Article 249 in relation to Articles 6 and 50 of
the same Code.
On 21 April 1998, petitioner and his older brother, Ferdinand Z. Palaganas (Ferdinand), were
charged under four (4) separate Informations6 for two (2) counts of Frustrated Murder, one (1)
count of Murder, and one (1) count for Violation of COMELEC Resolution No. 2958 7 relative
to Article 22, Section 261, of the Omnibus Election Code, 8allegedly committed as follows:
CRIMINAL CASE NO. U-9608
That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan
and within the jurisdiction of this Honorable Court, the above-named accused armed
with an unlicensed firearm, with intent to kill, treachery and evident premeditation,
conspiring together, did then and there willfully, unlawfully and feloniously shoot
SERVILLANO FERRER, JR. y Juanatas, inflicting upon him "gunshot wound
penetrating perforating abdomen, urinary bladder, rectum bullet sacral region," the
accused having thus performed all the acts of execution which would have produced
the crime of Murder as a consequence, but which nevertheless, did not produce it by
reason of the causes independent of the will of the accused and that is due to the timely
medical assistance rendered to said Servillano J. Ferrer, Jr. which prevented his
death, to his damage and prejudice.
CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal
Code, as amended.
CRIMINAL CASE NO. U-9609
That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan
and within the jurisdiction of this Honorable Court, the above-named accused armed
with an unlicensed firearm, with intent to kill, treachery and evident premeditation,
conspiring together, did then and there willfully, unlawfully and feloniously shoot
MICHAEL FERRER alias "Boying Ferrer", inflicting upon him gunshot wound on
the right shoulder, the accused having thus performed all the acts of execution which
would have produced the crime of murder as a consequence, but which nevertheless,
did not produce it by reason of the causes independent of the will of the accused and
that is due to the medical assistance rendered to said Michael "Boying" Ferrer
which prevented his death, to his damage and prejudice.
CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal
Code, as amended.
CRIMINAL CASE NO. U-9610
That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan
and within the jurisdiction of this Honorable Court, the above-named accused armed
with an unlicensed firearm, with intent to kill, treachery and evident premeditation,
conspiring together, did then and there willfully, unlawfully and feloniously shoot
MELTON FERRER alias "TONY FERRER", inflicting upon him mortal gunshot
wounds in the head and right thigh which caused the instantaneous death of said
Melton "Tony" Ferrer, to the damage and prejudice of his heirs.
CONTRARY to Art. 248 of the Revised Penal Code, as amended by R.A. 7659.
CRIMINAL CASE NO. U-9634
That on or about January 16, 1998 which is within the election period at Poblacion,
Manaoag, Pangasinan, and within the jurisdiction of this Honorable Court, the above-
named accused did then and there willfully, unlawfully and feloniously bear and carry
one (1) caliber .38 without first securing the necessary permit/license to do the same.
CONTRARY to COMELEC RES. 2958 in relation with SEC. 261 of the OMNIBUS
ELECTION CODE, as amended.9 (Underscoring supplied.)
When arraigned on separate dates,10 petitioner and Ferdinand entered separate pleas of "Not
Guilty." Upon motion of Ferdinand,11 the four cases were consolidated and were assigned to
Branch 46 of the RTC in Urdaneta, Pangasinan.12
The factual antecedents as viewed by the prosecution, are summarized in the Comment dated
18 April 2005 of the Office of the Solicitor General, 13 to wit:
On January 16, 1998, around 8:00 in the evening, brothers Servillano, [Melton] and
Michael, all surnamed Ferrer were having a drinking spree in their house because
[Melton], who was already living in San Fernando, La Union, visited his three
brothers and mother at their house in Sitio Baloking, Poblacion, Manaoag,
Pangasinan. At 9:45 in the evening, the three brothers decided to proceed to Tidbits
Videoke bar located at the corner of Malvar and Rizal Streets, Poblacion, Manaoag to
continue their drinking spree and to sing. Inside the karaoke bar, they were having a
good time, singing and drinking beer.
Thereafter, at 10:30 in the evening, Jaime Palaganas arrived together with Ferdinand
Palaganas and Virgilio Bautista. At that time, only the Ferrer brothers were the
customers in the bar. The two groups occupied separate tables. Later, when Jaime
Palaganas was singing, [Melton] Ferrer sang along with him as he was familiar with
the song [My Way]. Jaime however, resented this and went near the table of the Ferrer
brothers and said in Pangasinan dialect "As if you are tough guys." Jaime further said
"You are already insulting me inthat way." Then, Jaime struck Servillano Ferrer with
the microphone, hitting the back of his head. A rumble ensued between the Ferrer
brothers on the one hand, and the Palaganases, on the other hand. Virgilio Bautista
did not join the fray as he left the place. During the rumble, Ferdinand went out of the
bar. He was however pursued by Michael. When Servillano saw Michael, he also went
out and told the latter not to follow Ferdinand. Servillano and Michael then went back
inside the bar and continued their fight with Jaime.
29
 Meantime, Edith Palaganas, sister of Jaime and the owner of the bar, arrived and
pacified them. Servillano noticed that his wristwatch was missing. Unable to locate
the watch inside the bar, the Ferrer brothers went outside. They saw Ferdinand about
eight (8) meters away standing at Rizal Street. Ferdinand was pointing at them and
said to his companion, later identified as petitioner [Rujjeric] Palaganas, "Oraratan
paltog mo lara", meaning "They are the ones, shoot them." Petitioner then shot them
hitting Servillano first at the left side of the abdomen, causing him to fall on the
ground, and followed by [Melton] who also fell to the ground. When Servillano
noticed that [Melton] was no longer moving, he told Michael "Bato, bato." Michael
picked up some stones and threw them at petitioner and Ferdinand. The latter then left
the place. Afterwards, the police officers came and the Ferrer brothers were brought
to the Manaoag Hospital and later to Villaflor Hospital in Dagupan. Servillano later
discovered that [Melton] was fatally hit in the head while Michael was hit in the right
shoulder.
On the other hand, the defense, in its Appellant's Brief dated 3 December 1999, 14 asserted the
following set of facts:
On January 16, 1998, at around 11:00 in the evening, after a drinking session at their
house, the brothers Melton (Tony), Servillano (Junior) and Michael (Boying), all
surnamed Ferrer, occupied a table inside the Tidbits Caf and Videoke Bar and started
drinking and singing. About thirty minutes later, Jaime Palaganas along with his
nephew Ferdinand (Apo) and friend Virgilio Bautista arrived at the bar and occupied
a table near that of the Ferrers'.
After the Ferrers' turn in singing, the microphone was handed over to Jaime Palaganas,
who then started to sing. On his third song [My Way], Jaime was joined in his singing
by Tony Ferrer, who sang loudly and in an obviously mocking manner. This infuriated
Jaime, who then accosted Tony, saying, "You are already insulting us." The statement
resulted in a free for all fight between the Ferrers', on one hand, and the Palaganases
on the other. Jaime was mauled and Ferdinand, was hit on the face and was chased
outside of the bar by Junior and Boying Ferrer.
Ferdinand then ran towards the house of the appellant Rujjeric Palaganas, his brother,
and sought the help of the latter. Rujjeric, stirred from his sleep by his brother's shouts,
went out of his house and, noticing that the van of his uncle was in front of the Tidbits
Videoke Bar, proceeded to that place. Before reaching the bar, however, he was
suddenly stoned by the Ferrer brothers and was hit on different parts of his body, so
he turned around and struggled to run towards his house. He then met his brother,
Ferdinand, going towards the bar, so he tugged him and urged him to run towards the
opposite direction as the Ferrer brothers continued pelting them with large stones.
Rujjeric then noticed that Ferdinand was carrying a gun, and, on instinct, grabbed the
gun from the latter, faced the Ferrer brothers and fired one shot in the air to force the
brothers to retreat. Much to his surprise, however, the Ferrer brothers continued
throwing stones and when (sic) the appellant was again hit several times. Unable to
bear the pain, he closed his eyes and pulled the trigger.
On 28 October 1998, the trial court rendered its Decision finding petitioner guilty only of the
crime of Homicide and two (2) counts of Frustrated Homicide.15 He was, however, acquitted of
the charge of Violation of COMELEC Resolution No. 2958 in relation to Section 261 of the
Omnibus Election Code.16 On the other hand, Ferdinand was acquitted of all the charges against
him.17
In holding that petitioner is liable for the crimes of Homicide and Frustrated Homicide but not
for Murder and Frustrated Murder, the trial court explained that there was no conspiracy
between petitioner and Ferdinand in killing Melton and wounding Servillano and
Michael.18 According to the trial court, the mere fact that Ferdinand "pointed" to where the
Ferrer brothers were and uttered to petitioner "Araratan, paltog mo lara!" (They are the ones,
shoot them!), does not in itself connote common design or unity of purpose to kill. It also took
note of the fact that petitioner was never a participant in the rumble inside the Tidbits Cafe
Videoke Bar (videoke bar) on the night of 16 January 1998. He was merely called by Ferdinand
to rescue their uncle, Jaime, who was being assaulted by the Ferrer brothers. It further stated
that the shooting was instantaneous and without any prior plan or agreement with Ferdinand to
execute the same. It found that petitioner is solely liable for killing Melton and for wounding
Servillano and Michael, and that Ferdinand is not criminally responsible for the act of petitioner.
Further, it declared that there was no treachery that will qualify the crimes as murder and
frustrated murder since the Ferrer brothers were given the chance to defend themselves during
the shooting incident by stoning the petitioner and Ferdinand. 19 It reasoned that the sudden and
unexpected attack, without the slightest provocation on the part of the victims, was absent. In
addition, it ratiocinated that there was no evident premeditation as there was no sufficient period
of time that lapsed from the point where Ferdinand called the petitioner for help up to the point
of the shooting of the Ferrer brothers.20 Petitioner was sleeping at his house at the time he heard
Ferdinand calling him for help. Immediately, petitioner, still clad in pajama and sleeveless shirt,
went out of his room to meet Ferdinand. Thereafter, both petitioner and Ferdinand went to the
videoke bar where they met the Ferrer brothers and, shortly afterwards, the shooting ensued. In
other words, according to the trial court, the sequence of the events are so fast that it is
improbable for the petitioner to have ample time and opportunity to then plan and organize the
shooting.
Corollarily, it also stated that petitioner cannot successfully invoke self-defense since there was
no actual or imminent danger to his life at the time he and Ferdinand saw the Ferrer brothers
outside the videoke bar.21 It noted that when petitioner and Ferdinand saw the Ferrer brothers
outside the videoke bar, the latter were not carrying any weapon. Petitioner then was free to run
or take cover when the Ferrer brothers started pelting them with stones. Petitioner, however,
opted to shoot the Ferrer brothers. It also stated that the use by petitioner of a gun was not a
reasonable means to prevent the attack of the Ferrer brothers since the latter were only equipped
with stones, and that the gun was deadlier compared to stones. Moreover, it also found that
petitioner used an unlicensed firearm in shooting the Ferrer brothers. 22
As regards the Violation of COMELEC Resolution No. 2958, in relation to Section 261 of the
Omnibus Election Code, the trial court acquitted the petitioner of the offense as his use and
possession of a gun was not for the purpose of disrupting election activities.23 In conclusion, the
trial court held:
WHEREFORE, JUDGMENT is hereby rendered as follows:
1. Under CRIM. CASE NO. U-9610, [Rujjeric] PALAGANAS is hereby
CONVICTED beyond reasonable doubt of the crime of HOMICIDE (Not Murder)
with the use of an unlicensed firearm. The penalty imposable is in its maximum period
which is 20 years. The Court sentences [Rujjeric] Palaganas to suffer the penalty of
Reclusion Temporal in its maximum period or 20 years of imprisonment; and to pay
the heirs of [MELTON] Ferrer the sum of P7,791.50 as actual medical expenses of
[MELTON] Ferrer; P500,000.00 as moral damages representing unearned income of
[MELTON]; P50,000.00 for the death of [MELTON]; P50,000.00 for exemplary
damages and P100,000.00 for burial and funeral expenses.
Ferdinand Palaganas is hereby ACQUITTED for failure of the prosecution to prove
conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas beyond
reasonable doubt.
30
 2. Under CRIM. CASE NO. U-9608, [Rujjeric] PALAGANAS is hereby
CONVICTED beyond reasonable doubt of the crime of FRUSTRATED HOMICIDE
(Not Frustrated Murder), with the use of an unlicensed firearm, the Court sentences
him to suffer the penalty of Prision Mayor in its maximum period or 12 years of
imprisonment and to pay Servillano Ferrer the sum of P163,569.90 for his medical
expenses and P50,000.00 for exemplary damages;
Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove
conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas beyond
reasonable doubt.
3. Under CRIM. CASE NO. U-9609, [Rujjeric] PALAGANAS is hereby
CONVICTED beyond reasonable doubt of the crime of FRUSTRATED HOMICIDE
(Not Frustrated Murder), with the use of an unlicensed firearm, the Court sentences
him to suffer the penalty of Prision Mayor in its maximum period or 12 years of
imprisonment; and to pay Michael Ferrer the sum of P2,259.35 for his medical
expenses and P50,000.00 for exemplary damages;
Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove
conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas beyond
reasonable doubt.
Ordering accused [Rujjeric] Palaganas to pay Mrs. Elena Ferrer, the mother of the
Ferrer brothers, the amount of P100,000.00 as attorney's fees in CRIM. CASES NOS.
U-9608, U-9609, U-9610.
4. Under CRIM. CASE NO. U-9634, for failure of the prosecution to prove the guilt
of [Rujjeric] Palaganas beyond reasonable doubt of the crime of Violation of
COMELEC Resolution No. 2958 in relation with Section 261 of the Omnibus Election
Code, the Court ACQUITS [RUJJERIC] PALAGANAS.24
Aggrieved, the petitioner appealed the foregoing Decision of the RTC dated 28 October 1998,
before the Court of Appeals. In its Decision dated 30 September 2004, the Court of Appeals
affirmed with modifications the assailed RTC Decision. In modifying the Decision of the trial
court, the appellate court held that the mitigating circumstance of voluntary surrender under
Article 13, No. 7, of the Revised Penal Code should be appreciated in favor of petitioner since
the latter, accompanied by his counsel, voluntarily appeared before the trial court, even prior to
its issuance of a warrant of arrest against him.25 It also stated that the Indeterminate Sentence
Law should be applied in imposing the penalty upon the petitioner. 26 The dispositive portion of
the Court of Appeals' Decision reads:
WHEREFORE, the judgment of conviction is hereby AFFIRMED, subject to the
MODIFICATION that the penalty to be imposed for the crimes which the appellant
committed are as follows:
(1) For Homicide (under Criminal Case No. U-9610), the appellant is ordered to suffer
imprisonment of ten (10) years of prision mayor as minimum to seventeen (17) years
and four (4) months of reclusion temporal as maximum. Appellant is also ordered to
pay the heirs of Melton Ferrer civil indemnity in the amount of P50,000.00, moral
damages in the amount of P50,000.00 without need of proof and actual damages in
the amount of P43,556.00.
(2) For Frustrated Homicide (under Criminal Case No. U-9609), the appellant is
hereby ordered to suffer imprisonment of four (4) years and two (2) months of prision
correcional as minimum to ten (10) years of prision mayor as maximum. Appellant
is also ordered to pay Michael Ferrer actual damages in the amount of P2,259.35 and
moral damages in the amount of P30,000.00.
(3) For Frustrated Homicide (under Criminal Case No. U-9608), the appellant is
hereby penalized with imprisonment of four (4) years and two (2) months of prision
correcional as minimum to ten (10) years of prision mayor as maximum. Appellant
is also ordered to pay Servillano Ferrer actual damages in the amount of P163,569.90
and moral damages in the amount of P30,000.00.27
On 16 November 2004, petitioner lodged the instant Petition for Review before this Court on
the basis of the following arguments:
I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
JUDGMENT OF CONVICTION OF THE TRIAL COURT.
II.
THE HONORABLE COURT OF APPEALS ERRED IN NOT ACQUITTING
ACCUSED-APPELLANT ON THE GROUND OF LAWFUL SELF-DEFENSE.28
Anent the first issue, petitioner argued that all the elements of a valid self-defense are present in
the instant case and, thus, his acquittal on all the charges is proper; that when he fired his gun
on that fateful night, he was then a victim of an unlawful aggression perpetrated by the Ferrer
brothers; that he, in fact, sustained an injury in his left leg and left shoulder caused by the stones
thrown by the Ferrer brothers; that the appellate court failed to consider a material evidence
described as "Exhibit O"; that "Exhibit O" should have been given due weight since it shows
that there was slug embedded on the sawali wall near the sign "Tidbits Caf and Videoke Bar";
that the height from which the slug was taken was about seven feet from the ground; that if it
was true that petitioner and Ferdinand were waiting for the Ferrer brothers outside the videoke
bar in order to shoot them, then the trajectory of the bullets would have been either straight or
downward and not upward considering that the petitioner and the Ferrer brothers were about the
same height (5'6"-5'8"); that the slug found on the wall was, in fact, the "warning shot" fired by
the petitioner; and, that if this exhibit was properly appreciated by the trial court, petitioner
would be acquitted of all the charges.29
Moreover, petitioner contended that the warning shot proved that that the Ferrer brothers were
the unlawful aggressors since there would have been no occasion for the petitioner to fire a
warning shot if the Ferrer brothers did not stone him; that the testimony of Michael in the trial
court proved that it was the Ferrer brothers who provoked petitioner to shoot them; and that the
Ferrer brothers pelted them with stones even after the "warning shot."30
Petitioner's contention must fail.
Article 11, paragraph (1), of the Revised Penal Code provides for the elements and/or requisites
in order that a plea of self-defense may be validly considered in absolving a person from criminal
liability, viz:
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. x x
x.
As an element of self-defense, unlawful aggression refers to an assault or attack, or a threat
thereof in an imminent and immediate manner, which places the defendant's life in actual
peril.31 It is an act positively strong showing the wrongful intent of the aggressor and not merely
a threatening or intimidating attitude.32 It is also described as a sudden and unprovoked attack
of immediate and imminent kind to the life, safety or rights of the person attacked.33
31
There is an unlawful aggression on the part of the victim when he puts in actual or imminent
peril the life, limb, or right of the person invoking self-defense. There must be actual physical
force or actual use of weapon.34 In order to constitute unlawful aggression, the person attacked
must be confronted by a real threat on his life and limb; and the peril sought to be avoided is
imminent and actual, not merely imaginary.35
In the case at bar, it is clear that there was no unlawful aggression on the part of the Ferrer
brothers that justified the act of petitioner in shooting them. There were no actual or imminent
danger to the lives of petitioner and Ferdinand when they proceeded and arrived at the videoke
bar and saw thereat the Ferrer brothers. It appears that the Ferrer brothers then were merely
standing outside the videoke bar and were not carrying any weapon when the petitioner arrived
with his brother Ferdinand and started firing his gun.36
Assuming, arguendo, that the Ferrer brothers had provoked the petitioner to shoot them by
pelting the latter with stones, the shooting of the Ferrer brothers is still unjustified. When the
Ferrer brothers started throwing stones, petitioner was not in a state of actual or imminent danger
considering the wide distance (4-5 meters) of the latter from the location of the
former.37 Petitioner was not cornered nor trapped in a specific area such that he had no way out,
nor was his back against the wall. He was still capable of avoiding the stones by running away
or by taking cover. He could have also called or proceeded to the proper authorities for help.
Indeed, petitioner had several options in avoiding dangers to his life other than confronting the
Ferrer brothers with a gun.
The fact that petitioner sustained injuries in his left leg and left shoulder, allegedly caused by
the stones thrown by the Ferrer brothers, does not signify that he was a victim of unlawful
aggression or that he acted in self-defense.38There is no evidence to show that his wounds were
so serious and severe. The superficiality of the injuries sustained by the petitioner is no
indication that his life and limb were in actual peril.39
Petitioner's assertion that, despite the fact that he fired a warning shot, the Ferrer brothers
continued to pelt him with stones,40 will not matter exonerate him from criminal liability. Firing
a warning shot was not the last and only option he had in order to avoid the stones thrown by
the Ferrer brothers. As stated earlier, he could have run away, or taken cover, or proceeded to
the proper authorities for help. Petitioner, however, opted to shoot the Ferrer brothers.
It is significant to note that the shooting resulted in the death of Melton, and wounding of
Servillano and Michael. With regard to Melton, a bullet hit his right thigh, and another bullet
hit his head which caused his instant death.41 As regards Servillano, a bullet penetrated two of
his vital organs, namely, the large intestine and urinary bladder. 42 He underwent two (2)
surgeries in order to survive and fully recover.43 Michael, on the other hand, sustained a gunshot
wound on the right shoulder.44 It must also be noted that the Ferrer brothers were shot near the
videoke bar, which contradict petitioner's claim he was chased by the Ferrer brothers. Given the
foregoing circumstances, it is difficult to believe that the Ferrer brothers were the unlawful
aggressors. As correctly observed by the prosecution, if the petitioner shot the Ferrer brothers
just to defend himself, it defies reason why he had to shoot the victims at the vital portions of
their body, which even led to the death of Melton who was shot at his head.45 It is an oft-repeated
rule that the nature and number of wounds inflicted by the accused are constantly and
unremittingly considered important indicia to disprove a plea of self-defense.46
Let it not be forgotten that unlawful aggression is a primordial element in self-defense.47 It is an
essential and indispensable requisite, for without unlawful aggression on the part of the victim,
there can be, in a jural sense, no complete or incomplete self-defense.48 Without unlawful
aggression, self-defense will not have a leg to stand on and this justifying circumstance cannot
and will not be appreciated, even if the other elements are present.49 To our mind, unlawful
aggression, as an element of self-defense, is wanting in the instant case.
The second element of self-defense requires that the means employed by the person defending
himself must be reasonably necessary to prevent or repel the unlawful aggression of the victim.
The reasonableness of the means employed may take into account the weapons, the physical
condition of the parties and other circumstances showing that there is a rational equivalence
between the means of attack and the defense.50 In the case at bar, the petitioner's act of shooting
the Ferrer brothers was not a reasonable and necessary means of repelling the aggression
allegedly initiated by the Ferrer brothers. As aptly stated by the trial court, petitioner's gun was
far deadlier compared to the stones thrown by the Ferrer brothers.51
Moreover, we stated earlier that when the Ferrer brothers allegedly threw stones at the petitioner,
the latter had other less harmful options than to shoot the Ferrer brothers. Such act failed to pass
the test of reasonableness of the means employed in preventing or repelling an unlawful
aggression.
With regard to the second issue, petitioner asserts that the Court of Appeals erred in not
acquitting him on the ground of lawful self-defense.
Petitioner's argument is bereft of merit.
In resolving criminal cases where the accused invokes self-defense to escape criminal liability,
this Court consistently held that where an accused admits killing the victim but invokes self-
defense, it is incumbent upon the accused to prove by clear and convincing evidence that he
acted in self-defense.52 As the burden of evidence is shifted on the accused to prove all the
elements of self-defense, he must rely on the strength of his own evidence and not on the
weakness of the prosecution.53
As we have already found, there was no unlawful aggression on the part of the Ferrer brothers
which justified the act of petitioner in shooting them. We also ruled that even if the Ferrer
brothers provoked the petitioner to shoot them, the latter's use of a gun was not a reasonable
means of repelling the act of the Ferrer brothers in throwing stones. It must also be emphasized
at this point that both the trial court and the appellate court found that petitioner failed to
established by clear and convincing evidence his plea of self-defense. In this regard, it is settled
that when the trial court's findings have been affirmed by the appellate court, said findings are
generally conclusive and binding upon this Court.54 In the present case, we find no compelling
reason to deviate from their findings. Verily, petitioner failed to prove by clear and convincing
evidence that he is entitled to an acquittal on the ground of lawful self-defense.
On another point, while we agree with the trial court and the Court of Appeals that petitioner is
guilty of the crime of Homicide for the death of Melton in Criminal Case No. U-9610, and
Frustrated Homicide for the serious injuries sustained by Servillano in Criminal Case No. U-
9608, we do not, however, concur in their ruling that petitioner is guilty of the crime of
Frustrated Homicide as regards to Michael in Criminal Case No. U-9609. We hold that
petitioner therein is guilty only of the crime of Attempted Homicide.
Article 6 of the Revised Penal Code states and defines the stages of a felony in the following
manner:
ART. 6. Consummated, frustrated, and attempted felonies. Consummated felonies,
as well as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for the for its execution
and accomplishment are present; and it is frustrated when the offender performs all
the acts of execution which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason or causes independent of the will of the
perpetrator.
There is an attempt when the offender commences the commission of a felony directly
by overt acts, and does not perform all the acts of execution which should produce the
32
 felony by reason of some cause or accident other than his own spontaneous desistance
(italics supplied).
Based on the foregoing provision, the distinctions between frustrated and attempted felony are
summarized as follows:
1.) In frustrated felony, the offender has performed all the acts of execution which
should produce the felony as a consequence; whereas in attempted felony, the offender
merely commences the commission of a felony directly by overt acts and does not
perform all the acts of execution.
2.) In frustrated felony, the reason for the non-accomplishment of the crime is some
cause independent of the will of the perpetrator; on the other hand, in attempted
felony, the reason for the non-fulfillment of the crime is a cause or accident other than
the offender's own spontaneous desistance.
In addition to these distinctions, we have ruled in several cases that when the accused intended
to kill his victim, as manifested by his use of a deadly weapon in his assault, and his victim
sustained fatal or mortal wound/s but did not die because of timely medical assistance, the crime
committed is frustrated murder or frustrated homicide depending on whether or not any of the
qualifying circumstances under Article 249 of the Revised Penal Code are present.55 However,
if the wound/s sustained by the victim in such a case were not fatal or mortal, then the crime
committed is only attempted murder or attempted homicide.56 If there was no intent to kill on
the part of the accused and the wound/s sustained by the victim were not fatal, the crime
committed may be serious, less serious or slight physical injury.57
Based on the medical certificate of Michael, as well as the testimony of the physician who
diagnosed and treated Michael, the latter was admitted and treated at the Dagupan Doctors-
Villaflor Memorial Hospital for a single gunshot wound in his right shoulder caused by the
shooting of petitioner.58 It was also stated in his medical certificate that he was discharged on
the same day he was admitted and that the treatment duration for such wound would be for six
to eight days only.59 Given these set of undisputed facts, it is clear that the gunshot wound
sustained by Michael in his right shoulder was not fatal or mortal since the treatment period for
his wound was short and he was discharged from the hospital on the same day he was admitted
therein. Therefore, petitioner is liable only for the crime of attempted homicide as regards
Michael in Criminal Case No. U-9609.
With regard to the appreciation of the aggravating circumstance of use of an unlicensed firearm,
we agree with the trial court and the appellate court that the same must be applied against
petitioner in the instant case since the same was alleged in the informations filed against him
before the RTC and proven during the trial. However, such must be considered as a special
aggravating circumstance, and not a generic aggravating circumstance.
Generic aggravating circumstances are those that generally apply to all crimes such as those
mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised
Penal Code. It has the effect of increasing the penalty for the crime to its maximum period, but
it cannot increase the same to the next higher degree. It must always be alleged and charged in
the information, and must be proven during the trial in order to be appreciated. 60 Moreover, it
can be offset by an ordinary mitigating circumstance.
On the other hand, special aggravating circumstances are those which arise under special
conditions to increase the penalty for the offense to its maximum period, but the same cannot
increase the penalty to the next higher degree. Examples are quasi-recidivism under Article 160
and complex crimes under Article 48 of the Revised Penal Code. It does not change the character
of the offense charged.61 It must always be alleged and charged in the information, and must be
proven during the trial in order to be appreciated.62 Moreover, it cannot be offset by an ordinary
mitigating circumstance.
It is clear from the foregoing that the meaning and effect of generic and special aggravating
circumstances are exactly the same except that in case of generic aggravating, the same CAN
be offset by an ordinary mitigating circumstance whereas in the case of special aggravating
circumstance, it CANNOT be offset by an ordinary mitigating circumstance.
Aside from the aggravating circumstances abovementioned, there is also an aggravating
circumstance provided for under Presidential Decree No. 1866,63 as amended by Republic Act
No. 8294,64 which is a special law. Its pertinent provision states:
If homicide or murder is committed with the use of an unlicensed firearm, such use
of an unlicensed firearm shall be considered as an aggravating circumstance.
In interpreting the same provision, the trial court reasoned that such provision is "silent as to
whether it is generic or qualifying."65 Thus, it ruled that "when the law is silent, the same must
be interpreted in favor of the accused."66Since a generic aggravating circumstance is more
favorable to petitioner compared to a qualifying aggravating circumstance, as the latter changes
the nature of the crime and increase the penalty thereof by degrees, the trial court proceeded to
declare that the use of an unlicensed firearm by the petitioner is to be considered only as a
generic aggravating circumstance.67 This interpretation is erroneous since we already held in
several cases that with the passage of Republic Act. No. 8294 on 6 June 1997, the use of an
unlicensed firearm in murder or homicide is now considered as a SPECIAL aggravating
circumstance and not a generic aggravating circumstance.68 Republic Act No. 8294 applies to
the instant case since it took effect before the commission of the crimes in 21 April 1998.
Therefore, the use of an unlicensed firearm by the petitioner in the instant case should be
designated and appreciated as a SPECIAL aggravating circumstance and not merely a generic
aggravating circumstance.
As was previously established, a special aggravating circumstance cannot be offset by an
ordinary mitigating circumstance. Voluntary surrender of petitioner in this case is merely an
ordinary mitigating circumstance. Thus, it cannot offset the special aggravating circumstance of
use of unlicensed firearm. In accordance with Article 64, paragraph 3 of the Revised Penal Code,
the penalty imposable on petitioner should be in its maximum period. 69
As regards the civil liability of petitioner, we deem it necessary to modify the award of damages
given by both courts.
In Criminal Case No. U-9610 for Homicide, we agree with both courts that the proper amount
of civil indemnity is P50,000.00, and that the proper amount for moral damages is P50,000.00
pursuant to prevailing jurisprudence.70However, based on the receipts for hospital, medicine,
funeral and burial expenses on record, and upon computation of the same, the proper amount of
actual damages should be P42,374.18, instead of P43,556.00. Actual damages for loss of
earning capacity cannot be awarded in this case since there was no documentary evidence to
substantiate the same.71 Although there may be exceptions to this rule,72 none is availing in the
present case. Nevertheless, since loss was actually established in this case, temperate damages
in the amount of P25,000.00 may be awarded to the heirs of Melton Ferrer. Under Article 2224
of the New Civil Code, temperate or moderate damages may be recovered when the court finds
that some pecuniary loss was suffered but its amount cannot be proved with certainty. Moreover,
exemplary damages should be awarded in this case since the presence of special aggravating
circumstance of use of unlicensed firearm was already established. 73 Based on prevailing
jurisprudence, the award of exemplary damages for homicide is P25,000.00.74
In Criminal Cases No. U-9608 and U-9609, we agree with both courts as to the award of actual
damages and its corresponding amount since the same is supported by documentary proof
therein. The award of moral damages is also consistent with prevailing jurisprudence. However,
exemplary damages should be awarded in this case since the presence of special aggravating
circumstance of use of unlicensed firearm was already established. Based on prevailing
33
jurisprudence, the award of exemplary damages for both the attempted and frustrated homicide
shall be P25,000.00 for each.
WHEREFORE, premises considered, the decision of the Court of Appeals dated 30 September
2004 is hereby AFFIRMED with the following MODIFICATIONS:
(1) In Criminal Case No. U-9609, the petitioner is found guilty of the crime of attempted
homicide. The penalty imposable on the petitioner is prision correccional under Article 51 of
the Revised Penal Code.75 There being a special aggravating circumstance of the use of an
unlicensed firearm and applying the Indeterminate Sentence of Law, the penalty now becomes
four (4) years and two (2) months of arresto mayor as minimum period to six (6) years
of prision correccional as maximum period. As regards the civil liability of petitioner, the latter
is hereby ordered to pay Michael Ferrer exemplary damages in the amount of P25,000.00 in
addition to the actual damages and moral damages awarded by the Court of Appeals.
(2) In Criminal Case No. U-9608, the penalty imposable on the petitioner for the frustrated
homicide is prision mayorunder Article 50 of the Revised Penal Code.76 There being a special
aggravating circumstance of the use of an unlicensed firearm and applying the Indeterminate
Sentence Law, the penalty now becomes six (6) years of prision correccional as minimum
period to twelve (12) years of prision mayor as maximum period. As regards the civil liability
of petitioner, the latter is hereby ordered to pay Servillano Ferrer exemplary damages in the
amount of P25,000.00 in addition to the actual damages and moral damages awarded by the
Court of Appeals.
(3) In Criminal Case No. U-9610, the penalty imposable on petitioner for the homicide
is reclusion temporal under Article 249 of the Revised Penal Code.77 There being a special
aggravating circumstance of the use of an unlicensed firearm and applying the Indeterminate
Sentence Law, the penalty now is twelve (12) years of prision mayor as minimum period to
twenty (20) years of reclusion temporal as maximum period. As regards the civil liability of
petitioner, the latter is hereby ordered to pay Melton Ferrer exemplary damages in the amount
of P25,000.00 in addition to the actual damages and moral damages awarded by the Court of
Appeals. The actual damages likewise awarded by the Court of Appeals is hereby reduced
to P42,374.18.

34
People v. Palaganas
G.R. No. 165483 September 12, 2006
Lessons Applicable: Aggravating circumstance
Laws Applicable: Art. 14
FACTS:
January 16, 1998 8pm: Brothers Servillano, Melton and Michael Ferrer were on a drinking
spree in their house because Melton visited his brothers in Pangasinan all the way from San
Fernando, La Union.
January 16, 1998 9:45 pm: The brothers decided to go to Tidbits Videoke bar to continue
their drinking spree and to sing. They were the only customers
January 16, 1998 10:30 pm: Jaime Palaganas, Ferdinand Palaganas and Virgilio Bautista
arrived and they occupied a different table. When Jaime sang My Way, Melton sang along.
But, Jaime resented this, approached the brother and said in Pangasinan dialect "As if you are
tough guys. You are already insulting me in that way." Jaime struck Servillanos head with
the microphone and a fight ensued. Virgilio Bautista did not joined in and just left. During the
rumble, Ferdinand went out of the bar. Michael was about to pursue him but was stopped by
Servillano. They went back to continue to fight with Jaime. Edith Palaganas, sister of Jaime
and the owner of the bar, arrived and pacified them. Servillano noticed that his wristwatch
was missing. Since the brothers could not locate it inside the bar, they went outside. They
saw Ferdinand at them and said to Rujjeric Palaganas "Oraratan paltog mo lara" meaning
"They are the ones, shoot them." Rujjeric shot Servillano first at the left side of the abdomen
penetrating his large intestine and urinary bladder causing him to fall on the ground then
Melton with a fatal shot on the head and on the right thigh. When Servillano noticed that
Melton was no longer moving, he told Michael "Bato, bato and they threw stones at Rujjeric
and Ferdinand. Michael was hit on the right shoulder.
The police came and took the Ferrer brothers to Manaoag Hospital and later to Villaflor
Hospital in Dagupan.
Criminal Case No. U-9608: Shooting Servillano with unlicensed firearm
Criminal Case No. U-9609: Shooting Melton with unlicensed firearm
Criminal Case No. U-9610: Shooting Michael with unlicensed firearm
Criminal Case No. U-9634: using a caliber .38 without first securing the necessary
permit/license in violation to Comelec Res. 2958
Rujjeric and Ferdinand entered separate pleas of "Not Guilty" Upon motion of Ferdinand,
the four cases were consolidated.
RTC: Rujjeric was guilty of the crime of Homicide and 2 counts of Frustrated Homicide
but acquitted of the charge of Violation of COMELEC Resolution No. 2958 in relation to
Section 261 of the Omnibus Election Code while Ferdinand was acquitted of all the charges
against him.
CA Affirmed
Rujjeric argued that all the elements of a valid self-defense are present in the instant case
and, thus, his acquittal on all the charges is proper; that when he fired his gun, he was then a
victim of an unlawful aggression perpetrated by the Ferrer brothers; that he, in fact, sustained
an injury in his left leg and left shoulder caused by the stones thrown by the Ferrer brothers
ISSUE: W/N Rujjeric was guilty of the crime of Homicide and 2 counts of Frustrated
Homicide
HELD: YES. AFFIRMED with the following MODIFICATIONS:
Criminal Case No. U-9608: Shooting Servillano with unlicensed firearm - attempted
homicide. There being a special aggravating circumstance of the use of an unlicensed firearm
and applying the Indeterminate Sentence of Law, the penalty now becomes four (4) years and
two (2) months of arresto mayor as minimum period to six (6) years of prision correccional as
maximum period
Criminal Case No. U-9609: Shooting Melton with unlicensed firearm - homicide is
reclusion temporal - There being a special aggravating circumstance of the use of an
unlicensed firearm and applying the Indeterminate Sentence Law, the penalty now is twelve
(12) years of prision mayor as minimum period to twenty (20) years of reclusion temporal as
maximum period
Criminal Case No. U-9610: Shooting Michael with unlicensed firearm - frustrated
homicide. There being a special aggravating circumstance of the use of an unlicensed firearm
and applying the Indeterminate Sentence Law, the penalty now becomes six (6) years of
prision correccional as minimum period to twelve (12) years of prision mayor as maximum
period.
petitioner argued that all the elements of a valid self-defense are present in the instant case
and, thus, his acquittal on all the charges is proper; that when he fired his gun on that fateful
night, he was then a victim of an unlawful aggression perpetrated by the Ferrer brothers; that
he, in fact, sustained an injury in his left leg and left shoulder caused by the stones thrown by
the Ferrer brothers
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;
o no unlawful aggression on the part of the Ferrer brothers that justified the act of petitioner
in shooting them. Ferrer brothers then were merely standing outside the videoke bar and were
not carrying any weapon
o When the Ferrer brothers started throwing stones, petitioner was not in a state of actual or
imminent danger considering the wide distance (4-5 meters) of the latter from the location of
the former. He was still capable of avoiding the stones by running away or by taking cover. He
could have also called or proceeded to the proper authorities for help
Second. Reasonable necessity of the means employed to prevent or repel it;
o gun was far deadlier compared to the stones thrown by the Ferrer brothers.
Third. Lack of sufficient provocation on the part of the person defending himself. x x x.
unlawful aggression is a primordial element in self-defense. It is an essential and
indispensable requisite, for without unlawful aggression on the part of the victim
As the burden of evidence is shifted on the accused to prove all the elements of self-
defense, he must rely on the strength of his own evidence and not on the weakness of the
35
prosecution
1.) In frustrated felony, the offender has performed all the acts of execution which should
produce the felony as a consequence; whereas in attempted felony, the offender merely
commences the commission of a felony directly by overt acts and does not perform all the acts
of execution.
2.) In frustrated felony, the reason for the non-accomplishment of the crime is some cause
independent of the will of the perpetrator; on the other hand, in attempted felony, the reason
for the non-fulfillment of the crime is a cause or accident other than the offender's own
spontaneous desistance.
when the accused intended to kill his victim, as manifested by his use of a deadly weapon
in his assault, and his victim sustained fatal or mortal wound/s but did not die because of
timely medical assistance, the crime committed is frustrated murder or frustrated homicide
depending on whether or not any of the qualifying circumstances under Article 249 of the
Revised Penal Code are present. However, if the wound/s sustained by the victim in such a
case were not fatal or mortal, then the crime committed is only attempted murder or attempted
homicide.
If there was no intent to kill on the part of the accused and the wound/s sustained by the
victim were not fatal, the crime committed may be serious, less serious or slight physical
injury
Michals wound took six to eight days to heal - attempted homicide
use of an unlicensed firearm - special aggravating circumstance by Republic Act. No. 8294
on June 6, 1997
Generic aggravating circumstances are those that generally apply to all crimes such as
those mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the
Revised Penal Code. It has the effect of increasing the penalty for the crime to its maximum
period, but it cannot increase the same to the next higher degree. It must always be alleged and
charged in the information, and must be proven during the trial in order to be appreciated.
Moreover, it can be offset by an ordinary mitigating circumstance. On the other hand, special
aggravating circumstance, CANNOT be offset by an ordinary mitigating circumstance

36
G.R. Nos. L-30527-28 March 29, 1974
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PIO RICOHERMOSO, SEVERO PADERNAL, JUAN PADERNAL, ROSENDO
PERPEAN, MACARIO MONTEREY and RITO MONTEREY, defendants, JUAN
PADERNAL and SEVERO PADERNAL, defendants-appellants.
Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Antonio A. Torres
and Trial Attorney Lolita C. Dumlao for plaintiff-appellee.
Rogerio S. T. Cadag for defendants-appellants.
AQUINO, J.:p
Severo Padernal and Juan Padernal appealed from the decision of the Circuit Criminal Court at
Lucena City, convicting them of murder, sentencing each of them to reclusion perpetua and
ordering them to pay solidarily the sum of twelve thousand pesos to the heirs of Geminiano de
Leon and to pay the costs (Criminal Case No. CCC-IX-37-Quezon or 1922-CFI-Gumaca).
In the same decision they were convicted of lesiones leves. Each one was sentenced to suffer
the penalty of fifteen (15) days of arresto menor and to pay the costs. Rosendo Perpean, Rito
Monterey and Macario Monterey were acquitted (Criminal Case No. CCC-IX-38-Quezon or
1923-CFI-Gumaca).
The facts disclosed in the prosecution's evidence, on which the judgment of conviction was
based, are as follows:
At about nine o'clock in the morning of January 30, 1965 Geminiano de Leon, together with
his thirty-three-year old common-law wife Fabiana Rosales, his twenty-four-year old son
Marianito de Leon and one Rizal Rosales, encountered Pio Ricohermoso in Barrio Tagbacan
Silangan, Catanauan, Quezon.
Geminiano owned a parcel of land in that barrio which Ricohermoso cultivated as kaingin.
Geminiano asked Ricohermoso about his share of the palay harvest. He added that he should
at least be allowed to taste the palay harvested from his land. Ricohermoso answered that
Geminiano could go to his house anytime and he would give the latter palay. Geminiano
rejoined that he could not get the palay that morning because he was on his way to Barrio
Bagobasin but, on his return, he would stop at Ricohermoso's house and get the palay.
When Geminiano returned to Barrio Tagbacan Silangan, he stopped at Ricohermoso's place. It
was about two o'clock in the afternoon. Geminiano sat on a sack beside Fabiana Rosales in
front of the house while Marianito stood about three meters behind his father. A .22 caliber
rifle was slung on Marianito's right shoulder. Ricohermoso stood near the door of his house
while Severo Padernal was stationed near the eaves of the house.
Geminiano asked Ricohermoso about the palay. The latter, no longer conciliatory and
evidently hostile, answered in a defiant tone: "Whatever happens, I will not give you palay."
Geminiano remonstrated: "Why did you tell us to pass by your house, if you were not willing
to give the palay?"
At that juncture, as if by pre-arrangement, Ricohermoso unsheathed his bolo and approached
Geminiano from the left, while Severo Padernal (Ricohermoso's father-in-law) got an axe and
approached Geminiano from the right. The latter looked up to the sexagenarian Severo
Padernal, with both hands raised and pleaded: "Mamay (Grandpa), why will you do this to us.
We will not fight you." While Geminiano was still looking up to Severo Padernal on his right,
Ricohermoso walked to Geminiano's left, and, when about one meter from him, stabbed him
on the neck with his bolo. Geminiano fell face downward on the ground. While in that helpless
position, he was hacked on the back with an axe by Severo Padernal.
At that same place and time, while Severo Padernal and Ricohermoso were assaulting
Geminiano de Leon, another episode was taking place. Juan Padernal (Ricohermoso's brother-
in-law and the son of Severo) suddenly embraced Marianito de Leon from behind, with his
right arm locked around Marianito's neck and his left hand pressing Marianito's left forearm.
They grappled and rolled downhill towards a camote patch. Marianito passed out. When he
regained consciousness, his rifle was gone. He walked uphill, saw his mortally wounded father
Geminiano in his death throes, and embraced him. He carried Geminiano for a short distance.
The fifty-one year old Geminiano died at two o'clock on that same day.
Doctor Isabela A. Matundan certified that Geminiano de Leon sustained the following
wounds:
1. Wound, incised, neck, lateral aspect, left, cutting the carotid artery and
jugular vein, 4 inches in length crosswise with fracture of the cervical
vertebra.
2. Wound, incised, back lumbar region, left, 4 inches, directed
anteriorly, 3 inches deep.
3. Wound, incised, waist, dorsal, 1 inches, skin only.
4. Hematoma, forearm, upper third, left. (Exh. B).
Doctor Matundan said that the first wound was fatal. It could have caused instantaneous death
because it was a deep wound which pierced the carotid artery and jugular vein (Exh. C). The
second wound on the back could likewise have caused the victim's death if it had penetrated
the kidney.
Doctor Matundan found that Marianito de Leon sustained multiple abrasions on the neck and
abdomen and a lacerated wound on the left foot which would heal from one to nine days even
without medical treatment.
Appellants' version is that in the afternoon of January 30, 1965, when Ricohermoso refused to
give any palay to Geminiano de Leon, because the land tilled by the former was allegedly a
public land, Geminiano approached Ricohermoso. When Geminiano unsheathed his bolo,
Ricohermoso met him, drew his bolo and struck Geminiano on the left side of the neck. The
latter tried to parry the blow. He was wounded in the wrist. As Geminiano turned right to flee,
Ricohermoso struck him again on the left side of his body, causing him to fall on the ground.
Geminiano died on the spot due to the bleeding from the wound on his neck.
While Geminiano was being assaulted, his son Marianito tried to shoot with his rifle but Juan
Padernal disabled him and wrested the gun. Marianito suffered abrasions on the neck and
other parts of the body (Pages 1 to 3, appellants' brief).
It is manifest that the defendants fashioned their version in such a way as to shift the
responsibility for the killing to Ricohermoso, a fugitive from justice who has not been tried.
They also tried to exculpate Severo Padernal and to prove that Ricohermoso acted in self-
defense.
The appellants filed their brief on February 6, 1970. Later, Severo Padernal withdrew his
appeal. The withdrawal was granted in the resolution dated November 3, 1970 (Page
206, Rollo). That withdrawal strengthened the case for the prosecution or the appellee and
rendered inoperative appellants' version of the case. Severo Padernal in effect accepted as
correct the prosecution's version of the tragic incident and the trial court's finding that he
conspired with Ricohermoso and his son, Juan, to kill Geminiano de Leon.
The only issue in this appeal, which concerns Juan Padernal, is whether he conspired with
Ricohermoso and Severo Padernal to kill Geminiano de Leon.
The trial court rationalized its conclusion that there was conspiracy by stating that their
conduct revealed unity of purpose and a concerted effort to encompass Geminiano's death.
37
Appellant Juan Padernal invokes the justifying circumstance of avoidance of a greater evil or
injury (par. 4, Art. 11, Revised Penal Code) in explaining his act of preventing Marianito de
Leon from shooting Ricohermoso and Severo Padernal. His reliance on that justifying
circumstance is erroneous. The act of Juan Padernal in preventing Marianito de Leon from
shooting Ricohermoso and Severo Padernal, who were the aggressors, was designed to insure
the killing of Geminiano de Leon without any risk to his assailants.
Juan Padernal was not avoiding any evil when he sought to disable Marianito. Padernal's
malicious intention was to forestall any interference in the felonious assault made by his father
and brother-in-law on Geminiano. That situation is unarguably not the case envisaged in
paragraph 4 of article 11.
Juan Padernal contends that he was not a co-principal because he did not take any direct part
in the killing of Geminiano, that he did not force or induce Ricohermoso to stab Geminiano
and that he allegedly did not cooperate in its commission. That contention is not well-taken.
It should be recalled that, in the morning, Geminiano had an understanding with Ricohermoso
that he (Geminiano) would return in the afternoon to get his share of the palay harvest.
Ricohermoso gave Geminiano the impression that he (Ricohermoso) was amenable to giving
Geminiano his share of the harvest. However, during the interval, Ricohermoso changed his
mind. Instead of remaining steadfast to his original intention to give Geminiano palay,
Ricohermoso planned with his father-in-law, Severo Padernal, and his brother-in-law,
appellant Juan Padernal, the manner of liquidating Geminiano as to stop him from pestering
Ricohermoso with demands for a share in the harvest.
So, when Geminiano reappeared at Ricohermoso's place in the afternoon, Severo Padernal,
Ricohermoso Juan Padernal, like actors in a well-rehearsed play, performed their assigned
roles with dramatic precision. Severo Padernal and Ricohermoso, one armed with an axe and
the other with a bolo, in a pincer movement, confronted Geminiano de Leon. Simultaneously
with that maneuver, the thirty-five-year old Juan Padernal embraced Marianito de Leon and
prevented him from firing at Severo Padernal and Ricohermoso or from helping his father.
Considering the trio's behavior and appellant Juan Padernal's close relationship to
Ricohermoso and Severo Padernal, the ineluctable conclusion is that he acted in conspiracy
with them. He coordinated and timed his seizure of Marianito with the assault of Ricohermoso
and Severo Padernal on Geminiano. It is doubtful if the assailants could have consummated
the killing of Geminiano, without their suffering any injury, if Marianito had not been
rendered helpless by appellant Juan Padernal.
The circumstances surrounding the killing of Geminiano de Leon alevosia or treachery. His
hands were raised and he was pleading for mercy with Severo Padernal, when Ricohermoso
struck him on the neck with a bolo. The fact that an exchange of words preceded the assault
would not negate the treacherous character of the attack. Geminiano did not expect that
Ricohermoso would renege on his promise to give him palay and that he would adopt a
bellicose attitude. Juan Padernal's role of weakening the defense, by disabling Marianito de
Leon, was part and parcel of the means of execution deliberately resorted to by the assailants
to insure the assassination of Geminiano de Leon without any risk to themselves (Par. 16,
Article 14, Revised Penal Code).
Treachery was appreciated in a case where the accused fired at the victim who, with hands
upraised, pleaded in a loud voice: "Do not shoot me; investigate first what was my fault"
(People vs. Barba, 97 Phil. 991. See People vs. Dagundong, 108 Phil. 682, 684, 693).
As to the other case, L-30528, the charge against the appellants was attempted murder with
respect to Marianito de Leon. The trial court convicted them lesiones leves. The case was
included in this appeal apparently pursuant to the provision in section 17(1) of the Judiciary
Law that a case arising out of the same occurrence, as that in which reclusion perpetua was
imposed, is appealable to this Court.
Inasmuch as Juan Padernal did not touch upon the lesiones leves case in his brief, he, like his
father Severo, seems to have acquiesced in the correctness of the trial court's decision.
WHEREFORE, the judgment of the lower court as to appellant Juan Padernal is affirmed with
costs against him.
SO ORDERED.
PEOPLE V RICOHERMOSO
11FEB
L 30527 28 | March 29, 1974 | J. Aquino
Avoidance of Greater Evil or Injury
Facts:
Geminiano de Leon, together with his common-law wife, son Marianito de Leon and one
Rizal Rosales, chanced upon Pio Ricohermoso. Owning a parcel of land, which Ricohermoso
cultivated as kaingin, Geminiano asked about his share of palay harvest and added that she
should be allowed to taste the palay harvested from his land. Ricohermoso said Geminiano
could collect the palay anytime.
Upon returning from his trip to Barrio Bagobasin, Geminiano dropped by Ricohermosos
house and asked him about the palay, to which the latter answered defiantly that he will not
give him the palay, whatever happens. Geminiano remonstrated and that point (as if by
prearrangement), Ricohermoso unsheathed his bolo, while his father-in-law Severo Padernal
got an axe, and attacked Geminiano. At the same time and place, Ricohermosos brother-in-
law Juan Padernal suddenly embraced Marianito. They grappled and rolled down the hill, at
which point Marianito passed out. When he regained consciousness, he discovered that the
rifle he carried beforehand was gone and that his father was mortally wounded.
The defendants shifted the responsibility of killing in their version of the case.
Issue:
W/N appellant Juan Padernal can invoke the justifying circumstance of avoidance of a greater
evil or injury
Held:
No. Juan Padernals reliance on the justifying circumstance is erroneous because his act in
preventing Marianito from shooting Ricohermoso and Severo Padernal, the aggressors in this
case, was designed to insure the killing of Geminiano de Leon without any risk to the
assailants and not an act to prevent infliction of greater evil or injury. His intention was to
forestall any interference in the assault.
Treachery was also appreciated in the case. The trial court convicted the appellants
with lesiones leves, from an attempted murder charge with respect to Marianito de Leon.
Judgment as to Juan Padernal affirmed.
(Note: Severo Padernal withdrew his appeal, thus, in effect, accepted the prosecutions version
of the case and trial courts finding of guilty
38
 Malice, one of the essential requisites of slander hasnt been proven. There is no malice in the act

PEOPLE v. NORMA HERNANDEZ (1959) of the appellant changing her mind. She was merely exercising her right not to give her consent the
BY MAROON 5 PARTNERS AND ASSOCIATES JUNE 1, 2012 SLANDER marriage after mature consideration.
Furthermore, there were no strained relations existing between the complainant & appellant before
Plaintiff-Appellee: People of the Philippines
the incident. There always existed good relations between them for they were neighbours so it
Defendant-Appellants: Maria Norma Hernandez, Mariano Hernandez (father) & Ramona Martinez
cannot be sustained that appellant was motivated by spite or ill-will in deliberately frustrating the
(mother)
marriage.
FACTS:
Appellant has the privilege to reconsider her previous commitment to marry and it would be utterly
inconsistent to convict her for slander by deed simply because she desisted in continuing with the
Vivencio Lascano, 19 y/o, started courting appellant, Maria Norma Hernandez and after months of
marriage. If she would be liable then that would be tantamount to compelling her to go into a
courtship, appellant finally accepted Vivencio. On the same date, she asked him to bring his
marriage without her free consent.
parents over her home so that they could talk about their marriage.
Appellant had the right to avoid to herself the evil of going through a loveless marriage. (Art. 11
When Vivencio and his parents went to her house, they brought chickens and goats and they agreed
par.4, RPC)
to buy a wedding dress, 2 vestidas, shoes, P20 for the sponsors and to repair the uncles roof.
While the celebration was going on, appellant was nowhere to be found. Vivencio and his parents
ALP
waited but she never showed up thus causing them great shame and humiliation.
Norma Hernandez averred that Vivencio was really courting her but that she wasnt really in love A
with him. Her parents tried to persuade her to accept the proposal and that she only accepted it out
of obedience to her parents and the uncles insistence.
Before Vivencios parents came to their home, she already counselled them not to bring the
chickens and that they should not regret whatever may happen later.
Appellant said she felt torture because she wasnt honestly in love with Vivencio and so she
decided to leave home as last recourse to prevent the marriage.
Appellants parents also corroborated her testimony.
RTC convicted her of serious slander by deed because she purposely and deliberately fled to
prevent celebration of marriage. Thus, she appealed.

HELD:

Court reversed the RTC judgment and acquitted the appellant.

RATIO:

39
G.R. No. L-18660 December 22, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
FELIPE DELIMA, defendant-appellant.
Tancinco & Rosales for appellant.
Attorney-General Villa-Real for appellee.

ROMUALDEZ, J.:
Lorenzo Napilon had escaped from the jail where he was serving sentence.
Some days afterwards the policeman Felipe Delima, who was looking for him, found him in
the house of Jorge Alegria, armed with a pointed piece of bamboo in the shape of a lance, and
demanded his surrender. The fugitive answered with a stroke of his lance. The policeman
dodged, it, and to impose his authority fired his revolver, but the bullet did not hit him. The
criminal ran away, without parting with his weapon. These peace officer went after him and
fired again his revolver, this time hitting and killing him.
The policeman was tried and convicted for homicide and sentenced to reclusion temporal and
the accessory penalties. He appeals from that judgment which must be reversed.
That killing was done in the performance of a duty. The deceased was under the obligation to
surrender, and had no right, after evading service of his sentence, to commit assault and
disobedience with a weapon in the hand, which compelled the policeman to resort to such an
extreme means, which, although it proved to be fatal, was justified by the
circumstances.lawphil.net

40
People vs Delima Case Digest

Facts:

Lorenzo Napilon escaped from the jail. Some days afterwards, policeman Felipe Delima found

him in the house of Jorge Alegria, armed with a pointed piece of bamboo in the shape of a lance,

and demanded his surrender. Napilon answered with a stroke of his lance. Delima dodged, it,

and to impose his authority fired his revolver, but the bullet did not hit him. Napilon ran away,

without parting with his weapon. Delima went after him and fired again his revolver, this time

hitting and killing him. Delima was tried and convicted for homicide and sentenced to reclusion

temporal and the accessory penalties.

Held:

The killing was done in the performance of a duty. The deceased was under the obligation to

surrender, and had no right, after evading service of his sentence, to commit assault and

disobedience with a weapon in the hand, which compelled the policeman to resort to such an

extreme means, which, although it proved to be fatal, was justified by the

circumstances. (People vs. Delima, G.R. No. L-18660, December 22, 1922)

41
G.R. Nos. L-1940-42 March 24, 1949
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
IGNACIO LAGATA, defendant-appellant.
Vicente del Villar for appellant.
Assistant Solicitor General Guillermo E. Torres and Solicitor Jaime de los Angeles for
appellee.
PERFECTO, J.:
The witnesses in the this case testified in substance as follows:
PROSECUTION
1. Eusebio Abria 20 single farmer Jinangutdan, Santa Rita Samar. On October 3, 1946 he
was in the provincial jail detained for illegal possession of firearm, but his case was dismissed.
Ignacio Lagata was a provincial guard Six Prisoners were then assigned to work in the
capitol's plaza; Jesus, Tipace, Eusebio Mariano the witness and Epifanio Labong. their guard
ordered them to go to the nursery to pick up gabi. Not long afterwards they were called to
assemble. Epifanio Labong was missing. The nursery is near the provincial hospital in
Catbalogan. The place was grassy. Lagata ordered the five prisoner to call Labong (4-7). As
Labong did not answer Lagata ordered the five prisoners to look for him. They followed the
trail. Upon reaching the nation highway, Lagata called them. As Labong did not answer their
call Lagata ordered the five to look farther for him. The five prisoners went towards the
mountain. Upon reaching a camote plantation, "I saw footprints. I called my companions.
While we were all in the camote plantation I did not know that I was shot by Ignacio Lagata.
He was about four meter away from me. He fired at my left arm." At the time the witness was
standing one of his companions was at his right side three or four meter behind him. All
walked almost together at the moment because they wanted to see the footprints pointed by the
witness. "At the moment that he was hit he immediately called the attention of Ignacio Lagata
'Mano, I am wounded.' He said it is because you did not approach to me." (8-9). "When I saw
that he again manipulated the chamber of his gun I ran away. When I say that my other
companion ran away, I ran also. I noticed that my left arm was wounded. When I was already
sitting by the front of the coconut tree I heard another gun shot." Tipace is already dead "I did
not see him anymore. When Ignacio Lagata passed by where I was I Requested him to take
me. He brought me to the justice building Hospital. My left arm is amputated just right at the
joint between the shoulder and the arm. It is not yet completely healed." The witness had no
intention to run from Lagata. (11). Labong asked Lagata permission to gather gabi. The other
prisoner did not say anything. Lagata told them to go to the nursery. While they were
gathering gabi Lagata was near them. (12). But he could not see everybody because there was
talahib growing in the place and it was tall. The witness heard three shots. The second one hit
him. After the first shot "we were all assembled." (132-14). The witness did not see Tipace
being shot. "The reason as to why I ran was because I was afraid that I might be shot again."
(16). His companions were probably scared and that is why they ran. (17).
2. Mariano Ibaez, 25, married detained prisoner Zumarraga, Samar. On October 3, 1946,
he was in the provincial jail as a detained prisoner. After breakfast, six prisoner were called:
Epifanio Labong Ceferino Tipace, Eustaquio Galet, Jesus Manoso, Eusebio Abria and the
witness, Mariano Ibanez. They went to work in the plaza of the provincial jail. At about 11:00
o'clock they were taking a rest and while they were taking a rest the witness heard Lagata
inviting the prisoners to go the nursery to gather near the provincial hospital. They scattered to
get gabi. "We scarcely got three gabis when I heard Ignacio Lagata calling us to assemble."
The place was grassy were picking gabi Lagata was standing by the side of a mango tree. At
the call of Lagata only five them to call for him. (19-21). "Inasmuch as Epifanio Labong did
not answer our call Ignacio Lagata ordered us to go to the mountain and look for Epifanio
Labong. Eusebio then went to the camote plantation. He foundfootprints and he called Ignacio
Lagata to inform him that he saw footprints. On account of this report of Eusebio that he saw
flattened grass and that hewas unable to look for Epifanio Labong sa Ignacio Lagata filed at
him and he was hit on the left arm." He was at about three meter from Lagata. (22). The
witness was at the left side of Ceferino Tipace at about two meter from Abria.Abria said,
"Mano, I am wounded." Lagata said in turn, "Come around assemble here." Abria came to the
right side of Lagata. (23). "Oncewe were already assembled there Ignacio Lagata cocked his
gun and shot Ceferino Tipace and when I saw that Ceferino Tipace was hit then I ran away
because I had in mind that had i not ran I would have been shot also." At the time Tipace was
"standing and carrying with him on his left arm some gabi and when he turned to the left that
was the time when he was shot by Ignacio Lagata. The bullet penetrated from the left side of
the armpit and came out from the right side of the body." Tipace was at about two meter then
from Lagata. "At about 4:00 o'clock in the afternoon of that day I returned to the provincial
jail. I did not return immediately because I was afraid." Tipace was killed. (23). One morning,
Lagata gave the witness fist blow on the abdominal region and kicked him at the back Because
the pervious night the witness told the prisoners not to make much noise. "I did not have ill-
feeling because he had the right to maltreat me even if I was not at fault." (29). At the time
they were searching for Labong before the shooting they were walking in an ordinary way
looking toward the ground one after another at about half a meter from each other. Lagata was
behind all of them. (31).
3. Gilberto C. Rosales 63, married, president Sanitary Division Catbalogan, Samar. On
October 17, 1946, the cadaver of Ceferino Tipace was exhumed. (35). The witness found in it,
"A gun shot wound which went through the body from the lower left axillary region to the
right shoulder." (36).
4. Eustaquio Galet, 20, married detained prisoner. On October 3, 1946, he was one of the
six prisoner who worked in the premises of the capitol building. (38). "We went to the nursery
and each one of us got gabi. The guard Ignacio Lagata was under the mango tree. I was about
ten meter awayfrom him. It was grassy in the place where we were picking gabi. Not long
after we were called by Ignacio Lagata because we were going home already. One was
missing, Epifanio Labong. Ignacio Lagata ordered us to call Epifanio Labong but Epifanio
Labong but Epifanio Labong did not answer." (39) The talahib plants growing in the place
were taller than myself. " Lagata orderedus to search for Epifanio Labong. We went around
the place and then crossed the national highway and went up the mountain until we reached
tom place where cogon grass were growing. Eusebio Abria and myself saw flattened grass.
We informed Ignacio Lagata that there was a trace where a person had passed by or he may
have gone that way. Then Ignacio Lagata fired one time. While we were searching for
Epifanio Labong each one of us were bent and leaning looking downward. I heard a gun shot
and that was the time when Eusebio Abria was shot and then once he was hit he called Ignacio
Lagata his hand at his wound and then got near Ignacio Lagata." (40). "Upon seeing that one
of our companions was already shot without fault, I ran away and came down to the capitol
building and then went to the provincial jail and reported the matter to the sergeant of the
guard." His companion then was Jesus Maoso. They reached the provincial jail at about 12
o'clock noon. The shooting took place at about 11:30. (41). The witness heard Labong ask
Lagata to accompany their group to the nursery to gather gabi. When he was shot Abria was
bent and leaning his body downward to the ground while Lagata was behind him. (42). The
witness heard the shot that killed Ceferino Tipace. "I was already descending near the Capitol
building that was the time when I heard the shot." (43). Jesus Manoso ran away with the
42
witness, but Ceferino Tipaceand Mariano Ibanez remained. The treatment received by the
witness from Lagata was good. (44).
5. Pedro Mayuga, 39, married, chief, Samar Provincial Hospital. On October 3, 1946,
prisoner Eusebio Abria was brought to the hospital with a wound on the upper side of his left
arm which was amputated from the shoulder joint. "The patient was at first given resuscitating
medical treatment to combat the shock caused by the hemorrhage and later the shoulder joint
was disarticulated." After his arm was cut, he was confined in the hospital until November 6.
The wound must have been produced by a gun shot. There are indications that the shot was
fired at close range. Very likely around five meters. (48). There was no possibility of saving
the arm because "all the vital tissues were destroyed and the bone in all the vital parts of the
tissues destroyed from outward and inward." (50).
DEFENSE
1. Andres Saludario, 49, married, nursery foreman, Catbalogan, Samar. On October 3,
1946, he saw Lagata in the nursery guarding six prisoners. (53-54). The prisoners were just
within the premises of the nursery just beyond the mango tree. Lagata was about seven meters
from them and he was looking at them all the time. The place was grassy. The grass was about
half a meter tall. (55). The ground near the hill was covered with cogon and talahib. By the
height they could cover a man in standing position. The witness heard about the disappearance
of prisoner Epifanio Labong. At the time, the witness was already far, because he had to attend
to several laborers detained at the capitol building. When he returned from the capitol
building, he was informed that Epifanio Labong disappeared. (57-59). The witness did not
hear any gun shot explosion in the nursery. He saw the accused guarding the prisoners at about
8:00 o'clock in the morning. (60). The witness stayed in the nursery until about 8:30, when he
came to the capitol building. (61).
2. Ignacio Lagata, 27, married, Catbalogan. On October 3, 1946, he accompanied the six
prisoners from the provincial jail to the plaza of the provincial capitol. He remained there until
10 o'clock in the morning, when he told them to return to the provincial jail. The six prisoners
requested him to allow them to get some gabi in the nursery. Lagata went with them to a spot
around the mango tree. (63-64). The grass in the place was knee-high. Lagata was under a
mango tree about five meters from the prisoners. He was watching all of them. They were
scattered back, Epifanio Labong took advantage and escaped. "I did not discover that but
when I called them to assemble I found out that one missing. I asked the rest of the prisoners
as to where Epifanio Labong was. I told the prisoners to go to that spot. We went there and the
prisoners were ahead because they know the place. (66). When we arrived at the place, we did
not see Labong and Tipace called our attention telling us that this is the place through which
Epifanio Labong passed." The witness did not see the track of Epifanio Labong but the
prisoners, however, were the ones who indicated to him the place through which Epifanio
Labong passed. "I followed them. Up to above the national highway. When we reached up the
place another prisoner called also our attention telling us that here is the place through which
Labong passed and so went up. When we reached above, they were already far from here. So I
told them to stop because they were already far from me. They did not heed my order to stop.
Then I fired up to the air. They scattered. I could only see two of them I also saw one of them
running towards the mountain. So I fired at him." It was Eusebio Abria, and he was at about
five meters from him. "He was going up the mountain. After I fired at Eusebio Abria, I saw
him running. I just left him because I was looking for the rest. I saw also Ibanez running. He
was running towards me and then around me. I called his attention and told him to stop from
running or else lie down and give up your arm. He did not heed my order. I fired at him." (67-
69). The witness saw Ibanez running before him towards the south road. He was Tipace. One
minute elapsed from the time the witness fired at Abria to the time he fired at Ibaez. The
witness fired at them because he sympathizes with other policemen from whom other
prisoners escaped. (70). "Because if it so happened that a prisoner escaped under my custody,
I would be the one to be put in jail and if I cannot fire at him, I will be the one to be put in jail.
"The truth is that they ran away." At the time he fired at Tipace and Abria, they were running
away. (71). "What was in my mind was that if I could overtake them and not fire at them, I
would meet the same situation as what other guards met under whose custody prisoners
escaped and some of them were discharged from their duty." Ibanez testified against the
accused because the latter fired at his father-in-law. (72). One day, the accused maltreated
Ibanez. He slapped him two times. He was the only prisoner he slapped. (73). At the time they
were looking for Labong, the prisoners were walking in line one meter from one to another.
The accused was near them. (77). When he fired at Abria, the latter was about five meters
from him and when he fired at Tipace, the latter was four meters from him. At the time,
Tipace was running side-wise to the accused and he could see where the accused was. His face
was facing the accused. (78). When he fired at Abria, he lost hope to recover Labong. "I was
hopeless already." (80) The picking up of gabi was not part of the work of the prisoners. (81).
Appellant was charged with murder, serious physical injuries and evasion through negligence
in three separate cases which have been tried jointly.Finding him guilty, the trial court
sentenced him as follows:
(a) For Murder (Case No. 809) Reclusion Perpetua with civil interdiction for life
and perpetual absolute disqualification, indemnify the heirs of Ceferino Tipace Two
Thousand Pesos (2,000) and pay the costs of this action
(b) For serious physical injuries (Case No. 810) An indeterminate imprisonment
of two (2) year and four (4) month as minimum to four (4) year nine (9) month and
ten (10) days of prison correccional as maximum and pay the cost of this action;
and
(c) For evasion through negligence (Case No. 811) An indeterminate
imprisonment of two (2) months one (1) day of arresto mayor as minimum to one
(1) year one (1) month and ten (10) days of prison correccional and pay the costs,
(p. 45, rec.)
The evidence is conclusion to the effect that the escape of prisoner Epifanio Labong was due
to the negligence of the appellant. The six prisoner were supposed to work in the plaza of the
provincial capitol and to return to jail after said work but appellants allowed them instead to
go to the nursery to gather gabi without any apparent authority to do so.
Considering that the place was grassy and tall talahib was growing therein the height of which
could conceal persons in standing position appellant must have seen immediately that it was a
choice place for any prisoner that may want to escape. Such negligence of appellant is
punishable under article 224 of the Revised Penal code, and the penalty imposed by trial court
is in accordance with law.
As regards the shooting of Abria and Tipace we are convinced that the facts were as narrated
by the witnesses for the prosecution. Abria was shot when by the witnesses for then
prosecution. Abria was shot when he was onlythree meter away from appellant and the latter
has not even shown that Abria attempted to escape. Tipace was also shot when he was about
four or fivemeter away from appellant. The latter's allegation that Tipace was running
conveying the idea that said prisoner was in the act of escaping appears to be inconsistent
with his own testimony to the effect that Tipace was running sidewise with his face looking
towards appellant andwith the undisputed fact that Tipace was hit near one axilla, the bullet
coming out from the opposite shoulder. If Tipace's purpose was to escape the natural thing for
him to do would have to give his back to appellant.
43
The criminal responsibility of appellant regarding the killing of Tipace can be exacted from
him on the basis of his own testimony. The way he fired at Tipace ( whom he misnamed first
as Ibaez) is described by appellant in the following words:.
He was running towards me and then around me.
I called his attention and told him to stop from running or else lie downand give up
your arm. He did not heed my advice.
Inasmuch as he did not heed my advised so I fired at him.
His direction while he was running not exactly towards me but running in front of
me to the left side. (69).
Explaining his reason for firing at Abria and Tipace, appellant gave the following reason:
"Because I sympathize with the other policeman from whom prisoners escaped." (70). "If it so
happened that a prisoner escaped under my custody, I would be the one to be put in jail and if I
cannot fire at him I will be the one to be put in jail." (71). (Emphasis ours)
It is clear that Lagata had absolutely no reason to fire at Tipace. Lagata could have fired at him
in self defense or if absolutely necessary to avoid his escape. The record does not show that
Tipace was bent on committing any act of aggression "he was running towards and then
around me". (Emphasis ours) How could anyone in his senses imagine that Tipace intended to
escape by running towards and around the very guard he was supposed to escape from?
There is no question that the escape of Labong scared appellant according to him because of
the experience of other guard who were dismissed from office or even prosecuted because of
prisoners who had escaped under their custody and that it was his duty to fire against the
prisoner if he wanted to be exempt from any responsibility. Even if appellant sincerely
believe, althougherroneously that in firing the shots be acted in the performance of his official
duty the circumstances of the case show that there was no necessity for him to fire directly
against the prisoners so as seriously wound one of them and kill instantaneously another.
While custodians of prisoners should necessity would authorize them to fire against them.
Their is the burden of proof as to such necessity. The summary liquidation of Prisoner under
flimsy pretexts of attempts of escape, which has been and is being practiced in dictatorial
system of government has always been and is shocking to the universal conscience of
humanity.
Human life is valuable albeit sacred. Cain has been the object of unrelentlesscurse for
centuries and millennia and his name will always be remembered in shame as long as there are
human generation able to read the Genesis. Twenty centuries of Christianity have not been
enough to make less imperative the admonition that Thou shall not kill," uttered by greatest
pundit and prophet of Israel. Laws constitution world charters have been written to protect
human life. Still it is imperative that all men be imbued with spirit of the Sermon on the
Mount that the words of the gospels be translated into reality and that their meaning fill all
horizon with the eternal aroma of encyclical love of mankind.
As recommended by the prosecuted appellants is entitled to the benefit of the mitigating
circumstance of incomplete justifying circumstance in paragraph5 of Article 11 of the Revised
Penal Code. Consequently appellant shouldbe sentenced for homicide to an indeterminate
penalty of six years andone day of prision mayor to twelve years and one day of reclusion
temporal and in the case of serious physical injuries to an indeterminate penalty of four
months and one day of arresto mayor to two years, four months and one day of prision
correccional.
Modified as above stated the appealed decision is affirmed with costs against appellant.
Feria, Briones, Tuason and Reyes JJ., concur.
Moran, C.J., concurs in the result.

44
PEOPLE VS. LAGATA (1949) HELD:
BY MAROON 5 PARTNERS AND ASSOCIATES JUNE 1, 2012 ESCAPING PRISONERS

Plaintiff-Appellee: People of the Philippines Court ruled that Lagata should be sentenced for homicide and serious physical injuries.
Defendant-Appellant: Ignacio Lagata Appellant was entitled to the benefit of mitigating circumstance of incomplete justifying
FACTS: circumstance. (Art.11par.5, RPC)

The accused, Ignacio Lagata, a provincial guard of Catbalogan, Samar, was in charge of 6 prisoners RATIO:

(Jesus, Tipace, Eusebio, Mariano, Labong & Abria) assigned to work in the capitol plaza of Samar.
Lagata ordered the prisoners to go to the nursery to pick up gabi. Not long afterwards, they were It was clear that Lagata had absolutely no reason to fire at Tipace. The record does not show that
called to assemble. Epifanio Labong was missing so Lagata ordered the 5 remaining prisoners to Tipace was bent on committing any act of aggression or that he attempted to escape.
go look for him. According to Lagata himself, Tipace was running towards and around him. How could anyone
Eusebio Abria said that while they were gathering gabi, he heard 3 shots. He was wounded by the intending to escape run towards and around the very guard one was supposed to escape from?
2nd one. They were already assembled by the 1st shot and that he did not see Tipace being Even if Lagata sincerely believed that he acted in the performance of his duties, the circumstances
shot. He said he ran away because he was afraid that he might be shot again and that his show that there was no necessity for him to fire directly against the prisoners as to wound them
companions were also probably scared and that is why they ran. seriously and even kill one of them.
Another prisoner, Mariano Ibaez stated that Epifanio Labong did not answer their call so Ignacio While custodians should take care for prisoners not to escape, only ABSOLUTE NECESSITY
Lagata ordered to go look for him in the mountain. He said that Abria went to the camote would authorize them to fire against them.
plantation and found footprints and called on Lagata to inform him about the footprints. When
Abria told Lagata of the flattened grass and that he was unable to look for Labong, Ignacio Lagata
fired at him and he was hit on his left arm. Abria told Lagata he was wounded and in turn, Lagata
told them to assemble. Once they were assembled, Lagata cocked his gun and shot Ceferino
Tipace. Mariano said that when he saw Tipace was shot, he ran away because he also could have
been shot.
Eustaquio Galet, another detainee, received good treatment from Lagata though his testimony
corroborated those of the other prisoners.
Pedro Mayuga, chief of Samar Provincial Hospital & Gilberto Rosales, Sanitary Division president,
verified the gunshot wound and that the death of Tipace resulted therein.
Ignacio Lagata, however, said that he fired his gun because the prisoners were running far from him
when he already ordered them to stop. He said that he would be the one in jail if a prisoner escaped
under his custody. Furthermore, he would be discharged from duty like the others. He was
hopeless already. Moreover, the picking up of gabi was not part of the prisoners work.

45
 that instance, petitioner Mamangun, who was walking ahead of the group, fired his handgun
once, hitting the man. The man turned out to be Gener Contreras (Contreras) who was not the
G.R. No. 149152 February 2, 2007
robbery suspect.
RUFINO S. MAMANGUN, Petitioner,
Contreras died from the gunshot wound. The autopsy conducted by Dr. Benito B. Caballero
vs.
yielded the following findings:
PEOPLE OF THE PHILIPPINES, Respondent.
The cause of death was "Shock due to massive external and internal hemorrhage due to
DECISION
multiple gunshot wounds in the left arm side of the thorax, penetrating the left lung and
GARCIA, J.:
vertebral column." There were several wounds caused by one (1) bullet.
In this petition for review under Rule 45 of the Rules of Court, petitioner Rufino Mamangun y
As shown on the sketch of human body attached to the Certificate of Death, and as testified on
Silverio seeks the reversal of the Decision1 dated January 19, 2001 (promulgated on February
by Dr. Caballero, the bullet entered through the "lower third of the left arm, left side of the
13, 2001) of the Sandiganbayan in its Criminal Case No. 21131, convicting him of the crime
thorax and it penetrated the left lung and vertebral column and that is where the slug was
of Homicide.
found." From a laymans appreciation of the sketch, the bullet entered the outer, upper left arm
The factual backdrop:
of the victim, exited through the inner side of the said upper left arm, a little lower than the left
On September 12, 1994, herein petitioner, then a police officer, was charged before the
armpit and the slug lodging on the victims back where it was recovered at the vertebral
Sandiganbayan with the crime of Murder, allegedly committed, per the indicting
column.3
Information,2 docketed as Criminal Case No. 21131, as follows:
From the foregoing admitted or undisputed facts, the prosecution and the defense presented
That on or about the 31st day of July 1992, in the Municipality of Meycauyan, (sic) Province
conflicting versions as to how the fatal shooting of Contreras by petitioner Mamangun actually
of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused
happened.
Rufino S. Mamangun, a public officer, being then a Police Officer (PO2), duly appointed as
According to Ayson, the lone eyewitness for the prosecution, he accompanied the three
such and acting in relation to his office, armed with a gun, with intent to kill, did then and
policemen (Mamangun, Diaz and Cruz) to the rooftop of Abacans house. He was following
there willfully, unlawfully and feloniously, with treachery, evident premeditation and abuse of
petitioner Mamangun who was ahead of the group. They passed through the second-floor door
superior strength, attack, assault and shoot one Gener M. Contreras with the said gun, hitting
of the house to the rooftop. The roof was lighted by an incandescent bulb from an adjacent
the latter on his body, thereby inflicting (sic) him serious physical injuries which directly
house. He was beside Mamangun when they saw, some four to five arms-length away, a man
cause (sic) his death.
whom he (witness) recognized as Gener Contreras. Mamangun pointed his .45 cal. pistol at the
CONTRARY TO LAW.
man, who instantly exclaimed, "Hindi ako, hindi ako!," to which Mamangun replied, "Anong
On arraignment, petitioner, as accused below, duly assisted by a counsel de oficio, entered a
hindi ako?" Before he (Ayson) could say anything, Mamangun fired his gun, hitting the man
plea of "Not Guilty."
who turned out to be Contreras. He (witness) approached the victim who was then lying on his
In the ensuing trial, the prosecution presented in evidence the testimonies of Crisanto Ayson
left side unconscious. He brought down the victim and they rushed him to the hospital where
(Ayson), an alleged eyewitness, and Dr. Benito Caballero, then the designated Medico-Legal
he died at about 10:00 oclock that same evening.
Officer of Bulacan who performed an autopsy on the cadaver of the victim.
The defense has its own account of what purportedly actually transpired.1awphi1.net
For its part, the defense adduced in evidence the testimonies of the accused himself, Rufino
PO2 Mamangun, along with PO2 Cruz and PO2Diaz, denied the presence of Ayson at the
Mamangun, his co-policemen at the Philippine National Police (PNP), namely, PO2 Carlito
rooftop during the shooting incident. Corroborating one another, the three testified that they
Cruz, PO4 Hobert O. Diaz and Police Investigator SPO-1 Hernando B. Banez, all assigned at
were the only ones at the scene of the shooting, and that it was dark. They claimed that each of
the Meycauayan Police Station; and those of Lorenzo S. Abacan and Rogelio Ingco, son and
them, with Mamangun on the lead, went on separate directions around a water tank. As they
son-in-law, respectively, of Antonio Abacan, owner of the house on which rooftop the
met each other at the other side of the tank, PO2 Cruz pointed to a person crouching at the
shooting of the victim took place.
edge of the roof of the garage. Thinking that the person was the suspect they were looking for,
It is not disputed that on July 31, 1992, at about 8:00 in the evening, in Brgy. Calvario,
Mamangun chased said person. They announced that they were police officers but the person
Meycauayan, Bulacan a certain Liberty Contreras was heard shouting,
continued to run in a crouching position until Mamangun caught up with him and shouted,
"MagnanakawMagnanakaw." Several residents responded and thereupon chased the suspect
"Pulis. Tigil," whereupon the person suddenly stopped, turned around, faced Mamangun, and
who entered the yard of Antonio Abacan and proceeded to the rooftop of Abacans house.
raised a stainless steel pipe towards the latters head but Mamangun was able to evade the
At about 9:00 oclock that same evening, the desk officer of the Meycauayan PNP Police
attack. This prompted Mamangun to shoot the person on the left arm. All three claimed that it
Station, upon receiving a telephone call that a robbery-holdup was in progress in Brgy.
was only at this point that PO2 Cruz and Diaz approached Contreras who told them, "Hindi
Calvario, immediately contacted and dispatched to the scene the crew of Patrol Car No. 601
ako. Hindi ako." Mamangun went near Contreras and asked, "Why did you go to the rooftop?
composed of Team Leader SPO1 Andres Legaspi, with PO2 Eugenio Aminas and herein
You know there are policemen here." Contreras was thereafter brought to the hospital where
petitioner PO2 Rufino S. Mamangun; and Patrol Car No. 602 composed of Team Leader PO3
he died. After the shooting incident, Mamangun reported the same to the desk officer, POI
Sandiego San Gabriel, with PO2 Carlito Cruz and PO2 Hobert Diaz. With the permission of
Filomeno de Luna, who advised him to remain in the police station. De Luna directed Police
Abacan, petitioner Mamangun, PO2 Diaz and PO2 Cruz went to the rooftop of the house
Investigator Hernando Banez to investigate the incident. That same evening, Investigator
whereat the suspect was allegedly taking refuge.
Banez went to the place where the shooting happened. Banez allegedly found a steel pipe
The three policemen, i.e., petitioner, Diaz and Cruz, each armed with a drawn handgun,
about three (3) feet long on the depressed portion of the roof.
searched the rooftop. There, they saw a man whom they thought was the robbery suspect. At
46
On January 19, 2001, after due proceedings, the Sandiganbayan came out with its
decision4 finding the petitioner guilty beyond reasonable doubt of only the crime of Homicide.
In so finding, the Sandiganbayan did not appreciate the presence of the aggravating
circumstances of treachery, evident premeditation and abuse of superior strength to qualify the
killing to Murder. But even as the said court rejected the petitioners claim that the shooting
was justified by self-defense, it nonetheless ruled that the crime of Homicide was attended by
an incomplete justifying circumstance of the petitioner having acted in the performance of his
duty as a policeman, and also appreciated in his favor the generic mitigating circumstance of
voluntary surrender. Dispositively, the decision reads:
WHEREFORE, the accused, RUFINO S. MAMANGUN, is hereby found GUILTY beyond
reasonable doubt of the crime of Homicide, defined and penalized under Article 249, Revised
Penal Code, and taking into account the attendance of one (1) privileged mitigation (sic)
circumstance, one generic circumstance and no aggravating circumstance, he is hereby
sentenced under the Indeterminate Sentence Law, to suffer the penalty of imprisonment of
from Three (3) Years and Three (3) Months of prision correctional as minimum, to Seven (7)
years of prision mayor, as maximum, to indemnify the heirs (parents) of Gener Contreras in
the total amount of P352,025.00, and to past the costs.
SO ORDERED.
Unable to accept the judgment of conviction, petitioner is now with this Court via the present
recourse alleging that the Sandiganbayan committed reversible error in failing to apply
paragraph 5, Article 11, of the Revised Penal Code, which would have absolved him from
criminal liability on the basis of his submission that the shooting in question was done in the
performance of a duty or in the lawful exercise of a right or office.
First off, petitioner insists that the shooting, which ultimately caused the demise of Contreras,
was justified because he was repelling Contreras unlawful attack on his person, as Contreras
was then about to strike him on the head with a steel pipe.
We are not persuaded.
Well-settled is the rule that factual findings of the Sandiganbayan are conclusive upon the
Court except where: (1) the conclusion is a finding grounded entirely on speculations,
surmises and conjectures; (2) the inference made is manifestly mistaken; (3) there is grave
abuse of discretion; (4) the judgment is based on misapprehension of facts and the findings of
fact are premised on the absence of evidence and are contradicted by the evidence on
record.5None of these exceptions obtains in this case.
Having admitted6 the fatal shooting of Contreras on the night of July 31, 1992, petitioner is
charged with the burden of adducing convincing evidence to show that the killing was done in
the fulfillment of his duty as a policeman.
The justifying circumstance of fulfillment of duty under paragraph 5, Article II, of the Revised
Penal Code may be invoked only after the defense successfully proves that: (1) the accused
acted in the performance of a duty; and (2) the injury inflicted or offense committed is the
necessary consequence of the due performance or lawful exercise of such duty. 7
Concededly, the first requisite is present in this case. Petitioner, a police officer, was
responding to a robbery-holdup incident. His presence at the situs of the crime was in
accordance with the performance of his duty. However, proof that the shooting and ultimate
death of Contreras was a necessary consequence of the due performance of his duty as a
policeman is essential to exempt him from criminal liability.
As we see it, petitioners posturing that he shot Contreras because the latter tried to strike him
with a steel pipe was a mere afterthought to exempt him from criminal liability.
We see no plausible basis to depart from the Sandiganbayans findings that there was no
reason for the petitioner to shoot Contreras. The latter was unarmed and had already uttered,
"Hindi po ako, Hindi po ako" before the petitioner fatally shot him on the left arm. Prosecution
witness Ayson, who was then behind the petitioner when the latter shot Contreras, testified
that to the victims utterances, the petitioner even responded, "Anong hindi ako," and
immediately shot Contreras.8 As correctly observed by the Sandiganbayan:
Besides being self-serving (with respect to the accused) and biased (with respect to his co-
policemen-witnesses), We find (1) the claim of the accused and his co-policemen-witnesses
that the victim (Contreras) attacked the said accused and (2) their seemingly "positive"
identification of the stainless steel pipe (more of a rod) as his weapon, to be of doubtful
credibility, for the following reasons:
(1) We have no doubt that, as claimed by PO2 Carlito Cruz and PO2 Hobert Diaz,
the three policemen appropriately identified themselves as police officers as they
started chasing the man they saw "crouching," and, as claimed by accused PO2
Rufino Mamangun, that, as he was about to catch up with said man, he shouted,
"Pulis! Tigil!" With all these introductions and forewarnings, it is utterly incredible
and contrary to human experience that, that man, later identified to be Gener
Contreras and admittedly not the person they were looking for, purportedly armed
only with a stainless steel "lead" pipe (more of a rod) would suddenly stop, turn
around and attack one of the three policemen who were chasing him, one after the
other, with drawn guns.
(2) When the victim (Gener Contreras) fell down after being shot by accused PO2
Mamangun, and as the latter went near the fallen victim, said accused asked, "Why
did you go to the rooftop. You know there are policemen here." He admits that he
did not ask the victim, "Why did you try to hit me, if you are not the one?" This
admission clearly belies the claim of the police-witnesses that Gener Contreras
attacked the accused policeman with an iron pipe when he was shot, for the accused
should have asked the latter question.
(3) The location of the entry of the bullet fired by accused Mamangun which is at
the outer left arm at about the bicep of the victim and its trajectory as it penetrated
his body hitting his vital organs along the way belies the claim of the accused that
the victim was facing him and had just missed his head with an iron pipe, as instead
the victim must have instinctively shielded his body with his left arm.
Moreover, petitioners pretense that Contreras struck him with a steel pipe is intriguing. As it
is, petitioner did not report the same to Police Investigator Banez when he reported back to the
police station after the shooting incident. It was only when a lead pipe was recovered from the
scene and brought to the police station that petitioner conveniently remembered Contreras
trying to hit him with a pipe. Such a vital information could not have escaped the petitioners
mind. We are thus inclined to believe that the alleged actuation of Contreras, which could
have justified petitioners shooting him, was nothing but a concocted story to evade criminal
liability. Indeed, knowing that he shot Contreras, the least that the petitioner should have done
was to bring with him to the police station the very pipe with which Contreras tried to attack
him. As borne by the evidence, however, it was only after a police investigator referred to the
scene that the lead pipe surfaced.
Petitioner would likewise argue that the testimony of prosecution witness Ayson was
incredible and riddled with inconsistencies.
The alleged contradictions cited by the petitioner, i.e. where the victim was shot, where he
died, and as to whether Ayson left his house after the shooting incident, are but minor details
which do not affect Aysons credibility. We have held time and again that few discrepancies
and inconsistencies in the testimony of a witness referring to minor details and not in actuality
touching upon the central fact of the crime, do not impair his credibility. Quite the contrary,
47
such minor inconsistencies even tend to strengthen credibility because they discount the
possibility that the testimony was rehearsed.9
For sure, the record reveals that Aysons answers to the questions propounded by the defense
counsel are clear and categorical. As to where the victim died, Ayson clarified that the victim
was already at the rooftop even before the arrival of the police officers. As to why he was not
able to warn Mamangun that the victim was his relative, Ayson explained that he was not able
to utter any word because when Contreras said "Hindi ako. Hindi ako," petitioner suddenly
fired at the latter.10 As to the claim that Ayson was also on the roof, record shows that the
robbery-holdup happened at around 8:00 in the evening. Before the policemen arrived, Ayson
and Contreras were already pursuing the robber.11 Ayson also testified that when the victim
was shot by the petitioner, the former fell on his left side unconscious; that he did not leave his
house after the incident because he was afraid that the policemen would detain him.12
Self-defense, whether complete or incomplete, cannot be appreciated as a valid justifying
circumstance in this case. For, from the above admitted, uncontroverted or established facts,
the most important element of unlawful aggression on the part of the victim to justify a claim
of self defense was absent. Lacking this essential and primary element of unlawful aggression,
petitioners plea of self-defense, complete or incomplete, must have to fail.
To be sure, acts in the fulfillment of a duty, without more, do not completely justify the
petitioners firing the fatal gunshot at the victim. True, petitioner, as one of the policemen
responding to a reported robbery then in progress, was performing his duty as a police officer
as well as when he was trying to effect the arrest of the suspected robber and in the process,
fatally shoot said suspect, albeit the wrong man. However, in the absence of the equally
necessary justifying circumstance that the injury or offense committed be the necessary
consequence of the due performance of such duty, there can only be incomplete justification, a
privileged mitigating circumstance under Articles 13 and 69 of the Revised Penal Code.
There can be no quibbling that there was no rational necessity for the killing of Contreras.
Petitioner could have first fired a warning shot before pulling the trigger against Contreras
who was one of the residents chasing the suspected robber.
All told, we find no reversible error committed by the Sandiganbayan in convicting the
petitioner of the crime of Homicide attended by the privileged mitigating circumstance of
incomplete justifying circumstance of having acted in the performance of his duty as a
policeman and the generic mitigating circumstance of voluntary surrender.
IN VIEW WHEREOF, the instant petition is DENIED and the assailed decision of the
Sandiganbayan is AFFIRMED in all respects.
No pronouncement as to costs.
SO ORDERED.

48
 MAMANGUN V PEOPLE Acts in the fulfillment of duty and self-defense does not completely justify the petitioners
firing the fatal gunshot. The element of unlawful aggression on the part of the victim was
absent, which leads to the failure of the petitioners plea. Also, there can only be incomplete
11FEB justification (a privileged mitigating circumstance) in the absence of a necessary justifying
circumstance the injury was caused by necessary consequence of due performance of duty.
GR No. 149152 | February 2, 2007 | J. Garcia
Fulfillment of Duty/Lawful Exercise of Right
Facts:
Policeman (PO2) Rufino Mamangun was responding to a robbery-holdup call, with his fellow
police officers, at Brgy. Calvario, Meycauayan, Bulacan. A certain Liberty Contreras was
heard shouting, which prompted residents to respond and chase the suspect, who entered the
yard and proceeded to the rooftop of Antonio Abacan. Mamangun, with PO2 Diaz and Cruz,
each armed with a drawn handgun, searched the rooftop and saw a man who they thought was
the robbery suspect. Mamangun, who was ahead of the group, fired his gun once and hit the
man, who turned out to be Gener Contreras (not the suspect) Contreras died of the gunshot
wound.
According to the lone witness Crisanto Ayson, he accompanied the policemen to the lighted
rooftop. He was beside Mamangun when he (Ayson) recognized the deceased. According to
Ayson, Mamangun pointed his gun at the man, who instantly exclaimed Hindi ako, hindi
ako! to which Mamangun replied, Anong hindi ako? and shot him.
The defense rejects this testimony, alleging that they were the only ones at the dark rooftop
when Mamangun noticed a crouching man who suddenly continued to run. Mamangun
shouted Pulis, tigil! whereupon the person stopped and raised a steel pipe towards
Mamanguns head. This prompted Mamangun to shoot the person. The three police claim that
Contreras only said Hindi ako, hindi ako only when they approached him. Mamangun then
asked Why did you go to the rooftop? You know there are policemen here. Mamangun
reported the incident to the desk officer who directed investigator Hernando Banez to
investigate the incident. Banez later on found a steel pipe on the roof.

Issue:
W/N the death of the victim was the necessary consequence of the petitioners fulfillment of
his duty

Held:
No. The Court denies the instant petition and affirms Sandiganbayans decision after finding
the petitioners testimony to be nothing but a concocted story designed to evade criminal
liability. Per Sandiganbayans observations, the defense was self-serving for the accused and
biased with respect to his co-policemen-witnesses because:
1. After supposed introductions and forewarnings uttered allegedly by Mamangun, it is contrary
to human experience for a man (who is not the suspect) to attack one of three policemen with
drawn guns
2. Mamanguns admission that he did not ask the victim Why did you try to hit me, if you are
not the one? clearly belies their claim
3. The location of the entry of bullet belies their claim because it appears that the victim
instinctively shielded himself instead
Additionally, petitioners pretense that Contreras struck him was not initially reported to the
desk and was only conveniently remembered when the investigator found a pipe in the crime
scene.

49
 RPC, with the presence of the mitigating circumstance of voluntary surrender and granting
them the benefit of [the] Indeterminate Sentence Law, both accused are hereby sentenced to
FIRST DIVISION
each suffer an Indeterminate prison term of TEN (10) YEARS and ONE (1) DAY of prision
G.R. No. 153875 August 16, 2006
mayor as minimum, to EIGHTEEN (18) YEARS and ONE (1) DAY of reclusion temporal x x
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
x.
vs.
Both accused are hereby ordered to indemnify the heirs of the victim the sum of P50,000.00 as
ROLANDO DAGANI y REYES and OTELLO SANTIANO Y LEONIDA, Accused-
death indemnity, the sum of P31,845.00 as funeral and burial expenses, the sum of
Appellants.
P30,000.00 as and for [sic] attorneys fees and the further sum of P1,000.00 per appearance of
DECISION
counsel.
AUSTRIA-MARTINEZ, J.:
Both accused shall be credited with the full extent of their preventive imprisonment. Both
For review before the Court is the Decision dated June 20, 2002 1 of the Court of Appeals (CA)
accused are hereby committed to the Director, National Penitentiary, Muntinlupa, Metro
which affirmed the Decision of the Regional Trial Court of the City of Manila, Branch 12
Manila for service of Sentence.
(RTC), dated February 18, 1993, in Criminal Case No. 89-77467, finding the accused-
SO ORDERED.3
appellants Otello Santiano y Leonida (Santiano) and Rolando Dagani y Reyes (Dagani) guilty
In brief, the RTC held that appellants failed to prove that Javier attempted to squeeze the
of the crime of Murder.
trigger of the .22 caliber gun when he pointed it at Dagani; that during the course of the
The accusatory portion of the Information reads:
struggle for the possession of the .22 caliber gun, the danger to the life of the accused ceased
That on or about September 11, 1989, in the City of Manila, Philippines, the said accused
to be imminent; that in grappling for the weapon, Dagani "controlled" the hands of Javier and
conspiring and confederating together and mutually helping each other did then and there,
pushed them away from his body; that the appellants failed to produce the two empty shells as
willfully, unlawfully and feloniously, with intent to kill, evident premeditation and treachery,
physical evidence of the gunfire allegedly caused by Javier; that no points of entry or bullet
attack, assault and use of personal violence upon one ERNESTO JAVIER Y FELIX by then
markings on the walls of the canteen were shown; that, in light of these findings, no unlawful
and there shooting him with a .38 caliber revolver, thereby inflicting upon the said ERNESTO
aggression was present on the part of the victim; that the appellants failed to prove that they
JAVIER Y FELIX mortal gunshot wounds which were the direct and immediate cause of his
were on official duty at the time of the incidence; that, since it was not established that Javier
death thereafter.
actually fired his gun, the injury inflicted upon him cannot be regarded as a necessary
CONTRARY TO LAW.2
consequence of the due performance of an official duty; that the appellants were acting in
Upon arraignment, the appellants pleaded not guilty. Trial ensued where the prosecution
conspiracy; that the qualifying circumstance of treachery attended the killing, considering that
adduced evidence to establish the following:
Javier had been shot while his hands were being held by Dagani and as his body was out of
At about 4:45 in the afternoon of September 11, 1989, a group composed of Ernesto Javier
balance and about to fall; and that the mitigating circumstance of voluntary surrender should
(Javier), Lincoln Miran (Miran), and two other individuals had been drinking at the canteen
be appreciated in favor of the appellants.
located inside the compound of the Philippine National Railways (PNR) along C.M. Recto
The appellants appealed to the CA and assigned the following errors:
Avenue, Tondo, Manila. All of a sudden, appellants, who were security officers of the PNR
I
and covered by the Civil Service Rules and Regulations, entered the canteen and approached
THE LOWER COURT GRAVELY ERRED IN NOT APPRECIATING SELF DEFENSE ON
the group. Appellant Dagani shoved Miran, causing the latter to fall from his chair. Dagani
THE PART OF THE ACCUSED.
then held Javier while Santiano shot Javier twice at his left side, killing the latter.
II
The defense proceeded to prove their version of the facts:
THE LOWER COURT ERRED WHEN IT FAILED TO CONSIDER THE FACT THAT
Appellants testified that they were ordered by their desk officer to investigate a commotion at
THE ACCUSED-APPELLANTS WERE IN LAWFUL PERFORMANCE OF AN OFFICIAL
the canteen. Upon reaching the place, Santiano ordered his co-accused, Dagani, to enter, while
DUTY.
the former waited outside.
III
Dagani approached Javier who had been striking a bottle of beer on the table. Javier then
THE LOWER COURT GRAVELY AND SERIOUSLY ERRED IN RULING THAT THERE
pulled out a .22 caliber revolver and attempted to fire at Dagani, but the gun failed to go off.
WAS CONSPIRACY.
Then suddenly, while outside the canteen, Santiano heard gunfire and, from his vantage point,
IV
he saw Javier and Dagani grappling for a .22 caliber gun which belonged to Javier. During the
THE LOWER COURT GRAVELY ERRED IN FINDING THAT THE PROSECUTION
course of the struggle, the gun went off, forcing Santiano to fire a warning shot. He heard
WAS ABLE TO ESTABLISH BEYOND REASONABLE DOUBT THAT THE ACCUSED
Javiers gun fire again, so he decided to rush into the canteen. Santiano then shot Javier from a
ARE GUILTY OF MURDER.4
distance of less than four meters.
The CA rendered its Decision, the dispositive portion of which states:
Appellants invoked the justifying circumstances of self-defense and lawful performance of
WHEREFORE, the appealed judgment of conviction is MODIFIED. Appellants are hereby
official duty as PNR security officers. They also argued that the prosecution failed to establish
sentenced to reclusion perpetua. The award for attorneys fees and appearance fees for counsel
treachery and conspiracy.
are hereby deleted. In all the other aspects, the appealed decision is maintained.
The RTC rendered its Decision, the dispositive portion of which reads:
Let the entire records of the case be elevated to the Supreme Court for the mandated review.
WHEREFORE, finding both accused Otello Santiano y Leonida and Rolando Dagani y Reyes
SO ORDERED.5
guilty beyond reasonable doubt of the crime of Murder defined and punished under Art. 248,
50
The CA affirmed the findings of fact as well as the salient portions of the RTC Decision, but
deleted the award of attorneys fees and the per appearance fees of counsel since, the
CA reasoned, the instant case is criminal in nature which is under the control of the public
prosecutor, and, additionally, the RTC failed to justify this award in the body of its Decision.
And last, the CA found that the RTC erroneously applied the Indeterminate Sentence Law
since the penalty for Murder, at the time of the incident, was reclusion perpetua which is an
indivisible penalty to be imposed in its entirety, regardless of the attending mitigating
circumstance of voluntary surrender.
Appellants are now before this Court submitting for resolution the same matters argued before
the CA. Through their Manifestation dated February 11, 2003, 6 appellants prayed to dispense
with the filing of additional briefs.
As of date, the records show that despite the efforts exerted by the surety and the responsible
law officers to locate the appellants, the latter could not be found and have jumped bail. 7
The appeal is partly meritorious.
Appellants argue that the courts a quo misappreciated the facts and erred in finding that there
was no unlawful aggression on the part of the victim. They insist that the victim, Javier, had
been armed with a revolver at the time he was struggling with appellant Dagani; that the
former "could have easily killed the latter;" that, given the fact that Javier had been drinking,
"it is quite probable for Javier to act harshly and aggressively towards
peace officers such as the accused;"8 and that Javier actually fired three shots from his .22
caliber gun.9
We are not convinced.
When self-defense is invoked, the burden of evidence shifts to the accused to show that the
killing was legally justified. Having owned the killing of the victim, the accused should be
able to prove to the satisfaction of the Court the elements of self-defense in order to avail of
this extenuating circumstance. He must discharge this burden by clear and convincing
evidence. When successful, an otherwise felonious deed would be excused, mainly predicated
on the lack of criminal intent of the accused. Self-defense requires that there be (1) an
unlawful aggression by the person injured or killed by the offender, (2) reasonable necessity of
the means employed to prevent or repel that unlawful aggression, and (3) lack of sufficient
provocation on the part of the person defending himself. All these conditions must concur. 10
Unlawful aggression, a primordial element of self-defense, would presuppose an actual,
sudden and unexpected attack or imminent danger on the life and limb of a person not a
mere threatening or intimidating attitude11 but most importantly, at the time the defensive
action was taken against the aggressor.12 To invoke self-defense successfully, there must have
been an
unlawful and unprovoked attack that endangered the life of the accused, who was then forced
to inflict severe wounds upon the assailant by employing reasonable means to resist the
attack.13
In the instant case, the assertions that it was "quite probable" that Javier, during the course of
the struggle for the firearm, "could have easily killed" the appellants are uncertain and
speculative. There is aggression in contemplation of the law only when the one attacked faces
real and immediate threat to ones life. The peril sought to be avoided must be imminent and
actual, not just speculative.14
To sum up the matter, we quote the findings of the CA:
The defense was unable to prove that there was unlawful aggression on the part of Javier.
They were unable to present evidence that the victim actually fired his gun. No spent shells
from the .22 caliber pistol were found and no bullets were recovered from the scene of the
incident. Javier also tested negative for gunpowder residue. Moreover, the trial court found
appellant Daganis account of the incident to be incredible and self-serving. In sum, the
defense presented a bare claim of self-defense without any proof of the existence of its
requisites.15
Even if it were established that Javier fired his gun as the appellants so insist, the imminence
of the danger to their lives had already ceased the moment Dagani held down the victim and
grappled for the gun with the latter. After the victim had been thrown off-balance, there was
no longer any unlawful aggression
that would have necessitated the act of killing.16 When an unlawful aggression that has begun
no longer exists, the one who resorts to self-defense has no right to kill or even to wound the
former aggressor.17 When Javier had been caught in the struggle for the possession of the gun
with appellant Dagani, the grave peril envisaged by appellant Santiano, which impelled him to
fire at the victim, had then ceased to a reasonable extent,18 and undoubtedly, Santiano went
beyond the call of self-preservation when he proceeded to inflict the excessive and fatal
injuries on Javier, even when the alleged unlawful aggression had already ceased. 19
The second element of self-defense demands that the means employed to neutralize the
unlawful aggression are reasonable and necessary. It is settled that reasonable necessity of the
means employed does not imply material commensurability between the means of attack and
defense. What the law requires is rational equivalence.20 The circumstances in their entirety
which surround the grappling of the firearm by Dagani and Javier, such as the nature and
number of gunshot wounds sustained by the victim21 which amounted to two fatal
wounds,22 that Dagani was able to restrain the hands of Javier and push
them away from his body,23 that Dagani was larger than Javier and had finished Special
Weapons and Tactics (SWAT) hand-to-
hand combat training,24 and Javier, as admitted by the appellants, was inebriated at the time of
the incident,25 do not justify appellant Santianos act of fatally shooting the victim twice.26
All things considered, the appellants plea of self-defense is not corroborated by competent
evidence. The plea of self-defense cannot be justifiably entertained where it is not only
uncorroborated by any separate competent evidence but is in itself extremely
doubtful.27 Whether the accused acted in self-defense is a question of fact. Like alibi, the
affirmative defense of self-defense is inherently weak because, as experience has
demonstrated, it is easy to fabricate and difficult to disprove.28 This Court, therefore, finds no
reversible error on the part of the courts a quo in rejecting the claim of self-defense.
Appellants set up the defense that they were in the lawful performance of their official duties.
They specifically aver that they had been ordered by their desk officer to proceed to the
canteen in response to a telephone call stating that there was a group "creating trouble;" that
they were in the call of duty and exercising their functions and responsibilities as members of
the PNR Civil Security Office to preserve peace and order and
protect the lives and property in the PNR Compound;29 and that, invoking jurisprudence, as
security officers in the performance of duty, like the police, they must stand their ground and
overcome the opponent, and the force that may be exerted must differ from that which
ordinarily may be offered in self-defense.30
Article 11 of the Revised Penal Code provides that a person who acts in the fulfillment of a
duty or in the lawful exercise of a right or office does not incur any criminal liability. Two
requisites must concur before this defense can prosper: 1) the accused must have acted in the
performance of a duty or in the lawful exercise of a right or office; and 2) the injury caused or
the offense committed should have been the necessary consequence of such lawful
exercise.31 These requisites are absent in the instant case.
As found by the CA:
51
The defense failed to prove that the security officers were in fact on duty at the time they were
at the canteen. The trial court gave weight to the fact that the appellants were unable to submit
their daily time records to show that they were on duty at the time. Appellants assertion that
they were ordered to go on 24-hour duty was belied by PNR Security Investigator Rolando
Marinays testimony that PNR security officers work in two 12-hour shifts, from 7:00 a.m. to
7:00 p.m. and from 7:00 p.m. to 7:00 a.m.
Moreover, since it was not established that Javier fired his gun, the injury inflicted upon him
cannot be regarded as a necessary consequence of appellants due performance of an official
duty.32
As stated, considering that the imminent or actual danger to the life of the appellants had been
neutralized when Dagani grappled with Javier and restrained his hands; that Javier had been
thrown off-balance; that Dagani had been specially trained for these purposes; and that Javier
had been drinking immediately prior to the scuffle, this Court holds that the fatal injuries that
appellant Santiano inflicted on the victim cannot be deemed to be necessary consequences of
the performance of his duty as a PNR security officer.33 While it is recognized that police
officers if indeed the appellants can be likened to them must stand their ground and
overwhelm their opponents, in People v. Ulep,34 this Court counseled:
The right to kill an offender is not absolute, and may be used only as a last resort, and under
circumstances indicating that the offender cannot otherwise be taken without bloodshed. The
law does not clothe police officers with authority to arbitrarily judge the necessity to kill. It
may be true that police officers sometimes find themselves in a dilemma when pressured by a
situation where an immediate and decisive, but legal, action is needed. However, it must be
stressed that the judgment and discretion of police officers in the performance of their duties
must be exercised neither capriciously nor oppressively, but within reasonable limits. In the
absence of a clear and legal provision to the contrary, they must act in conformity with the
dictates of a sound discretion, and within the spirit and purpose of the law. We cannot
countenance trigger-happy law enforcement officers who indiscriminately employ force and
violence upon the persons they are apprehending. They must always bear in mind that
although they are dealing with criminal elements against whom society must be protected,
these criminals are also human beings with human rights.35
But this Court cannot agree with the findings of the courts a quo that the appellants were in
conspiracy.
The RTC simply held:
The Information cited conspiracy of the accused. Since it can also be committed thru
simultaneous/concerted action and considering that Javier was shot by Santiano while being
held by Dagani, under jurisprudence, conspiracy is present. 36
The tenor of the factual findings of the CA is equally unsatisfactory:
Moreover, the facts show that Javier was shot by appellant Santiano as he was being subdued
by appellant Dagani. The trial court held that the manner of the attack was indicative of a joint
purpose and design by the appellants.37
Courts must judge the guilt or innocence of the accused based on facts and not on mere
conjectures, presumptions, or suspicions.38 Other than the plain fact that the victim had been
shot by one of the accused while being held by a co-accused, there is no other evidence that
the appellants were animated by the same purpose or were moved by a previous common
accord. It follows that the liability of the accused must be determined on an individual basis.
While no formal agreement is necessary to establish conspiracy because conspiracy may be
inferred from the circumstances attending the commission of the crime, yet, conspiracy must
be established by clear and convincing evidence.39
This Court has held that even if all the malefactors joined in the killing, such circumstance
alone does not satisfy the requirement of conspiracy because the rule is that
neither joint nor simultaneous action is per se sufficient proof of conspiracy. Conspiracy must
be shown to exist
as clearly and convincingly as the commission of the offense itself. 40 Thus, even assuming that
Javier was simultaneously attacked, this does not prove conspiracy. No evidence was
presented to show that the appellants planned to kill Javier or that Daganis overt acts
facilitated that alleged plan. The prosecution did not establish that the act of Dagani in trying
to wrestle the gun from Javier and in the process, held the latters hands, was for the purpose
of enabling Santiano to shoot at Javier. The prosecution had the burden to show Daganis
intentional participation to the furtherance of a common design and purpose41 or that his action
was all part of a scheme to kill Javier. That Dagani did not expect Santiano to shoot the victim
is established when Santiano testified that Dagani "seem[ed] to be shocked, he was standing
and looking at the victim" as Javier gradually fell to the ground. 42 And since Daganis
conviction can only be sustained if the crime had been carried out through a conspiracy duly
proven, in view of the failure of the prosecution to discharge that burden, this Court is
constrained to acquit him.
And this Court cannot say that treachery attended the attack. The RTC declared:
[T]he Court believes that Javier was shot while his body was out-balanced and about to fall to
the right side and while his hands were being held by Dagani. Javier, therefore, was shot at
when he has no means to defend himself, hence, the killing was attended by the qualifying
circumstance of treachery.43
which the CA affirmed as follows:
The findings of the court a quo clearly showed that Javier was being held down and could not
effectively use his weapon. As such, the trial court held that Javier could not be considered to
be an armed man as he was being held down and was virtually helpless.
It has been held that when an assault is made with a deadly weapon upon an unarmed and
unsuspecting victim who [was] given no immediate provocation for the attack and under
conditions which made it impossible for him to evade the attack, flee or make [a] defense, the
act is properly qualified as treachery, and the homicide resulting therefrom is classified as
murder.44 x x x
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. Treachery is present when two conditions
concur, namely: (1) that the means, methods and forms of execution employed gave the person
attacked no opportunity to defend himself or to retaliate; and (2) that such means, methods and
forms of execution were deliberately and consciously adopted by the accused without danger
to his person.45
This Court has held that 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.46 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.47 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. 48 For the rules on
treachery to apply, the sudden attack must have been preconceived by the accused, unexpected
52
by the victim, and without provocation on the part of the latter. 49 Treachery is never presumed. As to moral damages, however, the widow of the victim, Erlinda Javier, is not entitled to the
Like the rules on conspiracy, it is required that the manner of attack must be shown to have same. She did not testify on any mental anguish or emotional distress which she suffered as a
been attended by treachery as conclusively as the crime itself. 50 result of her husbands death. No other heirs of Javier testified in the same manner. 59
The prosecution failed to convincingly prove that the assault by the appellants had been Inasmuch as the aggravating circumstance of taking advantage of official position attended the
deliberately adopted as a mode of attack intended to insure the killing of Javier and without killing, the Court awards exemplary damages in the amount of P25,000.00 in accordance with
the latter having the opportunity to defend himself. Other than the bare fact that Santiano shot Articles 2230 and 2234 of the Civil Code and prevailing jurisprudence. 60
Javier while the latter had been struggling with Dagani over the possession of the .22 caliber WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 15304 dated June
gun, no other fact had been adduced to show that the appellants consciously planned or 20, 2002 is MODIFIED. Appellant Otello Santiano y Leonida is found GUILTY beyond
predetermined the methods to insure the commission of the crime, nor had the risk of the reasonable doubt of Homicide and is sentenced to suffer the penalty of an indeterminate
victim to sentence from eight (8) years and one (1) day of prision mayor as minimum to fourteen (14)
retaliate been eliminated during the course of the struggle over the weapon, as the latter, years, eight (8) months, and one (1) day of reclusion temporal as maximum. Appellant
though struggling, had not been Santiano is further ordered to pay the heirs of the victim the amounts of P50,000.00 as death
completely subdued. As already stated, this Court must emphasize that the mere suddenness of indemnity, P31,845.00 as funeral and burial expenses, P25,000.00 as exemplary
the attack, or the vulnerable position of the victim at the time of the attack, or yet even the fact damages, P30,000.00 as attorneys fees and P1,000.00
that the victim was unarmed, do not by themselves make the attack treacherous. 51 It must be per appearance of counsel. Appellant Santiano shall be credited with the full extent of his
shown beyond reasonable doubt that the means employed gave the victim no opportunity to preventive imprisonment.
defend himself or retaliate, and that such means had been deliberately or consciously adopted Appellant Rolando Dagani y Reyes is hereby ACQUITTED.
without danger to the life of the accused.52
For these reasons, the Court is inclined to look upon the helpless position of Javier as merely
incidental to the attack, and that the decision to shoot Javier was made in an instant. 53
Considering the rule that treachery cannot be inferred but must be proved as fully and
convincingly as the crime itself, any doubt as to its existence must be resolved in favor of
Santiano. Accordingly, for failure of the prosecution to prove treachery to qualify the killing to
Murder, appellant Santiano may only be convicted of Homicide.54 The penalty, therefore,
under Article 249 of the Revised Penal Code, as amended, is reclusion temporal.
The Office of the Solicitor General is correct in that the courts a quo failed to consider the
aggravating circumstance of
taking advantage of official position under Article 14 (1) of the Revised Penal Code, since the
accused, a PNR security officer
covered by the Civil Service, committed the crime with the aid of a gun he had been
authorized to carry as such.55Considering that the mitigating circumstance of voluntary
surrender, as duly appreciated by the courts a quo, shall be offset against the aggravating
circumstance of taking advantage of official position, the penalty should be imposed in its
medium period, pursuant to Article 64 (4) of the aforesaid Code.
Applying the Indeterminate Sentence Law, the sentence of appellant Santiano will consist of a
minimum that is anywhere within the full range of prision mayor, and a maximum which is
anywhere within reclusion temporal in its medium period. This Court hereby fixes it to be
from eight (8) years and one (1) day of prision mayor as minimum, to fourteen (14) years,
eight (8) months, and one (1) day of reclusion temporal, as maximum.
As to the award of damages, prevailing jurisprudence entitles the heirs of the deceased to the
amount of P50,000.00 as civil indemnity for the death of the victim without need of any
evidence or proof of damages.56
The CA erred in deleting the attorneys fees and per appearance fees for lack of factual basis.
Although the CA is correct in noting that the RTC failed to justify these awards in the body of
its Decision, this appeal opens the entire case for review and, accordingly, the records show
that the foregoing
amounts had been stipulated by the parties,57 thereby dispensing with the need to prove the
same.58

53
 EN BANC Msg. No. 337
G.R. No. L-4445 February 28, 1955 Subject: Arsenio Borjal, Charges Against
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, To: Military Mayor of La Paz, Abra.
vs. 1. Returned herewith are the papers on the case of Arsenio Borjal.
MANUEL BERONILLA, FILIPINO VELASCO, POLICARPIO PACULDO, and 2. This is a matter best handled by your government and whatever disposition you
JACINTO ADRIATICO, defendants-appellants. make of the case is hereby approved.
Agripino A. Brillantes, Valera, Eufemio and Bernardez for appellants. (Sgd.) R. H. ARNOLD
Prospero C. Sanidad and Claro M. Recto for defendant. Lieut.-Colonel, 15th Inf., PA
Office of the Solicitor General Juan R. Liwag and Solicitor Jaime R. de los Angeles and Commanding
Martiniano P. Vivo for appellee.
REYES, J.B.L., J.: Received April 18, 1945, 10:35 a.m.
This is an appeal by accused Manuel Beronilla, Policarpio Paculdo, Filipino Velasco, and (Sgd.) MANUEL BERONILLA
Jacinto Adriatico from the judgment of the Court of First Instance of Abra (Criminal Case No. Military Mayor, La Paz, Abra
70) convicting them of murder for the execution of Arsenio Borjal in the evening of April 18, (Exhibit 8, 8-a)
1945, in the town of La Paz , Province of Abra. and on the night of the same day, April 18, 1945, Beronilla ordered the execution of Borjal.
Arsenio Borjal was the elected mayor of La Paz, Abra, at the outbreak of war, and continued Jacinto Adriatico acted as executioner and Antonio Palope as grave digger. Father Luding of
to serve as Mayor during the Japanese occupation, until March 10, 1943, when he moved to the Roman Catholic Church was asked to administer the last confession to the prisoner, while
Bangued because of an attempt upon his life by unknown persons. On December 18, 1944, Father Filipino Velasco of the Aglipayan Church performed the last rites over Borjal's
appellant Manuel Beronilla was appointed Military Mayor of La Paz by Lt. Col. R. H. Arnold, remains. Immediately after the execution, Beronilla reported the matter to Col. Arnold who in
regimental commander of the 15th Infantry, Philippine Army, operating as a guerrilla unit in reply to Beronilla's report, sent him the following message:
the province of Abra. Simultaneously with his appointment as Military Mayor, Beronilla HEADQUARTERS 3RD MILITARY DISTRICT
received copy of a memorandum issued by Lt. Col. Arnold to all Military Mayors in Northern 15TH INFANTRY, USAFIP
Luzon, authorizing them "to appoint a jury of 12 bolomen to try persons accused of treason, In the Field
espionage, or the aiding and abetting (of ) the enemy" (Exhibit 9). He also received from the 22 April 1945
Headquarters of the 15th Infantry a list of all puppet government officials of the province of
Abra (which included Arsenio Borjal, puppet mayor of La Paz), with a memorandum Msg. No. 398
instructing all Military Mayors to investigate said persons and gather against them complaints Subject: Report and information Re Borjal case
from people of the municipality for collaboration with the enemy (Exhibit 12-a). To: Military Mayor Beronilla
Sometime in March, 1945, while the operations for the liberation of the province of Abra were 1. Received your letter dated 18 April 1945, subject, above.
in progress, Arsenio Borjal returned to La Paz with his family in order to escape the bombing 2. My request that you withhold action in this case was only dictated because of a
of Bangued. Beronilla, pursuant to his instructions, placed Borjal under custody and asked the query from Higher Headquarters regarding same. Actually, I believe there was no
residents of La Paz to file complaints against him. In no time, charges of espionage, aiding the doubt as to the treasonable acts of the accused Arsenio Borjal and I know that your
enemy, and abuse of authority were filed against Borjal; a 12-man jury was appointed by trial was absolutely impartial and fair. Consequently, I Can only compliment you for
Beronilla, composed of Jesus Labuguen as chairman, and Benjamin Adriatico, Andres Afos, your impartial independent way of handling the whole case.
Juanito Casal, Santiago Casal, Benjamin Abella, Servillano Afos, Mariano Ajel, Felimon (Sgd.) R. H. ARNOLD
Labuguen, Felix Murphy, Pedro Turqueza, and Delfin Labuguen as members; while Felix Lieut.-Colonel, 15th Inf., PA
Alverne and Juan Balmaceda were named prosecutors, Policarpio Paculdo as clerk of the jury, Commanding
and Lino Inovermo as counsel for the accused. Later, Atty. Jovito Barreras voluntarily
appeared and served as counsel for Borjal. Sgt. Esteban Cabanos observed the proceedings for Received April 26, 1947 7:00 a.m.
several days upon instructions of Headquarters, 15th Infantry. The trial lasted 19 days up to (Sgd.) MANUEL BERONILLA
April 10, 1945; the jury found Borjal guilty on all accounts and imposed upon him instruction Military Mayor, La Paz, Abra
from his superiors. Mayor Beronilla forwarded the records of the case to the Headquarters of (Exhibit 21, 21-a)
the 15th Infantry for review. Said records were returned by Lt. Col. Arnold to Beronilla on Two years thereafter, Manuel Beronilla as military mayor, Policarpio Paculdo as Clerk of the
April 18, 1945 with the following instructions: jury, Felix Alverne and Juan Balmaceda as prosecutors, Jesus Labuguen, Delfin Labuguen,
HEADQUARTERS 3RD MILITARY DISTRICT Filemon Labuguen, Servillano Afos, Andres Afos, Benjamin Adriatico, Juanito Casel,
15TH INFANTRY, USAFIP Santiago Casel, Mariano Ajel, Felix Murphy, Benjamin Abella, and Pedro Turqueza as
In the Field members of the jury, Jacinto Adriatico as executioner, Severo Afos as grave digger, and
Father Filipino Velasco as an alleged conspirator, were indicted in the Court of First Instance
16 April 1945 of Abra for murder, for allegedly conspiring and confederating in the execution of Arsenio

54
Borjal. Soon thereafter, the late President Manuel A. Roxas issued Executive Proclamation
No. 8, granting amnesty to all persons who committed acts penalized under the Revised Penal
Code in furtherance of the resistance to the enemy against persons aiding in the war efforts of
the enemy. Defendant Jesus Labuguen, then a master sergeant in the Philippine Army, applied
for and was granted amnesty by the Amnesty Commission, Armed Forces of the Philippines
(Records, pp. 618-20). The rest of the defendant filed their application for amnesty with the
Second Guerrilla Amnesty Commission, who denied their application on the ground that the
crime had been inspired by purely personal motives, and remanded the case to the Court of
First Instance of Abra for trial on the merits.
Upon motion of defense counsel, the case against defendant Jesus Labuguen, who had been
granted amnesty by the Amnesty Commission of the Armed Forces of the Philippines, was
ordered provisionally dismissed: defendant Juan Balmaceda was discharged from the
information so that he might be utilized as state witness, although actually he was not called to
testify; while the case against defendants Antonio Palope (the grave digger) and Demetrio
Afos( a boloman) was dismissed for lack of sufficient evidence.
Trial proceeded against the rest of the defendants; and on July 10, 1950, the Court below
rendered judgment, acquitting the members of the jury and the grave digger Antonio Palope
on the ground that they did not participated in the killing of Arsenio Borjal; acquitting
defendants Jesus Labuguen, Felix Alverne, Severo Afos, and Lauro Parado upon insufficiency
of evidence to establish their participation in the crime; but convicting defendants Manuel
Beronilla, Policarpio Paculdo, Filipino Velasco, and Jacinto Adriatico as conspirator and co-
principals of the crime of murder, and sentencing them to suffer imprisonment of from 17
years, 4 months and 1 day of reclusion temporal to reclusion perpetua, to indemnify the heirs
of Arsenio Borjal jointly and severally in the amount of P4,000 with subsidiary imprisonment
in case of insolvency, and each to pay one fourth of the costs. In convicting said defendants
the Court a quo found that while the crime committed by them fell within the provisions of the
Amnesty Proclamation, they were not entitled to the benefits thereof because the crime was
committed after the expiration of the time limit fixed by the amnesty proclamation;: i.e., that
the deceased Arsenio Borjal was executed after the liberation of La Paz, Abra.
In view of the sentence meted by the Court below, the accused Beronilla, Paculdo, Velasco
and Adriatico appealed to this Court.
The records are ample to sustain the claim of the defense that the arrest, prosecution and trial
of the late Arsenio Borjal were done pursuant to express orders of the 15th Infantry
Headquarters. (Exhibit 9 and 12-a), instructing all military mayors under its jurisdiction to
gather evidence against puppet officials and to appoint juries of at least 12 bolomen to try the
accused and find them guilty by two thirds vote. It is to be noted that Arsenio Borjal was
specifically named in the list of civilian officials to be prosecuted (Exhibit 12-b).
In truth, the prosecution does not seriously dispute that the trial and sentencing of Borjal was
done in accordance with instructions of superior military authorities, altho it point to
irregularities that were due more to ignorance of legal processes than personal animosity
against Borjal. The state, however, predicates its case principally on the existence of the
radiogram Exhibit H from Col. Volckmann, overall area commander, to Lt. Col. Arnold,
specifically calling attention to the illegality of Borjal's conviction and sentence, and which
the prosecution claims was known to the accused Beronilla. Said message is as follows:
"Message:
VOLCKMANN TO ARNOLD CLN UNDERSTAND THAT MUNICIPALITIES
OF ABRA HAVE ORGANIZED JURY SYSTEM PD BELIEVE THAT THIS
BODY IS ILLEGAL AND CANNOT TRY PUNISHMENTS THEREOF PD
SPECIFIC INSTANCE IS BROUGHT TO YOUR ATTENTION FRO PROPER
AND IMMEDIATE ACTION ON ONE ARSENIO BORJAL OF LA PAZ WHO
HAS BEEN TRIED CMA CONVICTED AND SENTENCED TO BE HANGED
PD REPORT ACTION TAKEN BY YOU ON THIS MATTER PD MSG BEGINS
CLN"
(EXH. H)
The crucial question thus becomes whether or not this message, originally sent to Arnold's
quarters in San Esteban, Ilocos Sur, was relayed by the latter to appellant Beronilla in La Paz,
Abra, on the morning of April 18, 1945, together with the package of records of Borjal's trial
that was admittedly returned to and received by Beronilla on that date, after review thereof by
Arnold (Exhibit 8-8-a). Obviously, if the Volckmann message was known to Beronilla, his
ordering the execution of Borjal on the night of April 18, 1945 can not be justified.
We have carefully examined the evidence on this important issue, and find no satisfactory
proof that Beronilla did actually receive the radiogram Exhibit H or any copy thereof. The
accused roundly denied it. The messenger, or "runner", Pedro Molina could not state what
papers were enclosed in the package he delivered to Beronilla on that morning in question, nor
could Francisco Bayquen (or Bayken), who claimed to have been present at the delivery of the
message, state the contents thereof.
The only witness who asserted that Beronilla received and read the Volckmann message,
Exhibit H, was Rafael Balmaceda, a relative of Borjal, who claimed to have been, as
Beronilla's bodyguard, present at the receipt of the message and to have read it over
Beronilla's shoulder. This testimony, however, can not be accorded credence, for the reason
that in the affidavit executed by this witness before Fiscal Antonio of Abra (Exhibit 4),
Balmaceda failed to make any mention of the reading, or even the receipt, of the message. In
the affidavit, he stated:
Q. In your capacity as policeman, do you know of any usual occurrence that
transpired in La Paz, Abra? A. Yes, sir.
Q. Will you state what is the event? A. On April 17, 1945, I was assigned as
guard at the Presidencia where Mayor Arsenio Borjal is confined. On the 18th of
April, 1945, six bolomen came to me while I was on duty as guard, that Mayor
Borjal should be tied, on orders of Mayor Beronilla, Mayor Borjal wanted to know
the reason why he would be tied, as he had not yet learned of the decision of the jury
against him. Mayor Borjal wrote a note to Mayor Beronilla, asking the reason for his
being ordered to be tied. I personally delivered the note of Borjal to Mayor
Beronilla. Mayor Beronilla did not answer the note, but instead told me that I should
tie Mayor Borjal, as tomorrow he would die, as he cannot escape. I returned to the
Presidencia, and Mayor Borjal was tied, as that was the ordered of Mayor Beronilla.
The plain import of the affidavit is that the witness Rafael Balmaceda was not with Beronilla
when the message arrived, otherwise Beronilla would have given him his orders direct, as he
(Balmaceda) testified later at the trial. Moreover, it is difficult to believe that having learned of
the contents of the Volckmann message, Balmaceda should not have relayed it to Borjal , or to
some member of the latter's family, considering that they were relatives. In addition to
Balmaceda was contradicted by Bayken, another prosecution witness, as to the hatching of the
alleged conspiracy to kill Borjal. Balmaceda claimed that the accused-appellants decided to
kill Borjal in the early evening of April 18, while Bayken testified that the agreement was
made about ten o'clock in the morning, shortly after the accused had denied Borjal's petition to
be allowed to hear mass.
Upon the other hand, Beronilla's conduct belies his receipt of the Volckmann message. Had he
executed Borjal in violation of superior orders, he would not have dared to report it to Arnold's
headquarters on the very same day, April 18th, 1945, as he did (Exhibit 20), half an hour after
55
the execution. And what is even more important, if Borjal was executed contrary to 1949. On the other hand, Judge Bocar and Hilario, who subsequently took cognizance of the
instructions, how could Lt. Colonel Arnold on April 21, 1945, write in reply (Exhibit 21, 21-a) case, relied on Department Order No. 25, of the Department of the Interior, dated August 12,
"I can only compliment you for your impartial but independent way of handling the whole 1948, setting the liberation of the Province of Abra on April 4, 1945, fifteen days before
case" instead of berating Beronilla and ordering his court martial for disobedience? Borjal was slain. The two dates are not strictly contradictory; but given the benefit of the
Our conclusion is that Lt. Col. Arnold, for some reason that can not now be ascertained, failed Presidential directive to the Amnesty Commissions (Adm. Order No. 11, of October 2, 1946)
to transmit the Volckmann message to Beronilla. And this being so, the charge of criminal that "any reasonable doubt as to whether a given case falls within the (amnesty) proclamation
conspiracy to do away with Borjal must be rejected, because the accused had no need to shall be resolved in favor of the accused" (42 Off. Gaz., 2360), as was done in People vs.
conspire against a man who was, to their knowledge, duly sentenced to death. Gajo, Phil., 107 46 Off. Gaz., (No. 12) p. 6093.
The state claims that the appellants held grudges against the late Borjal. Even so, it has been For the reasons stated, the judgment appealed from is reversed and the appellants are
already decided that the concurrence of personal hatred and collaboration with the enemy as acquitted, with costs de oficio.
motives for a liquidation does not operate to exclude the case from the benefits of the Amnesty
claimed by appellants, since then "it may not be held that the manslaughter stemmed from
purely personal motives" (People vs. Barrioquinto,* G. R. Nos. L-2011 and 2267, June 30,
1951). Actually, the conduct of the appellants does not dispose that these appellants were
impelled by malice (dolo). The arrest and trial of Borjal were made upon express orders of the
higher command; the appellants allowed Borjal to be defended by counsel, one of them
(attorney Jovito Barreras) chosen by Borjal's sister; the trial lasted nineteen (19) days; it was
suspended when doubts arose about its legality, and it was not resumed until headquarters
(then in Langangilang, Abra) authorized its resumption and sent an observer (Esteban
Cabanos, of the S-5) to the proceedings, and whose suggestions on procedure were followed;
and when the verdict of guilty was rendered and death sentence imposed, the records were sent
to Arnold's headquarters for review, and Borjal was not punished until the records were
returned eight days later with the statement of Arnold that "whatever disposition you make of
the case is hereby approved" (Exhibit 8), which on its face was an assent to the verdict and the
sentence. The lower Court, after finding that the late Arsenio Borjal had really committed
treasonable acts, (causing soldiers and civilians to be tortured, and hidden American officers
to be captured by the Japanese) expressly declared that "the Court is convinced that it was not
for political or personal reason that the accused decided to kill Arsenio Borjal" (Decision, p. 9;
Record, p. 727).
It appearing that the charge is the heinous crime of murder, and that the accused-appellants
acted upon orders, of a superior officers that they, as military subordinates, could not question,
and obeyed in good faith, without being aware of their illegality, without any fault or
negligence on their part, we can not say that criminal intent has been established (U. S. vs.
Catolico, 18 Phil., 507; Peo. vs. Pacana, 47 Phil., 48; Sent. of the Tribunal Supremo of Spain,
3 July 1886; 7 January 1901; 24 March 1900; 21 Feb. 1921; 25 March 1929). Actus non facit
reum nisi mens si rea.
To constitute a crime, the act must, except in certain crimes made such by statute, be
accompanied by a criminal intent, or by such negligence or indifference to duty or to
consequence, as, in law, is equivalent to criminal intent. The maxim is, actus non
facit reum, nisi mens rea-a crime is not committed if the minds of the person
performing the act complained of be innocent. (U. S. vs. Catolico, 18 Phil., 507).
But even assuming that the accused-appellant did commit crime with they are charged, the
Court below should not have denied their claim to the benefits of the Guerrilla Amnesty
Proclamation No. 8 (42 Off. Gaz., 2072)on the ground that the slaying of Arsenio Borjal took
place after actual liberation of the area from enemy control and occupation. The evidence on
record regarding the date of liberation of La Paz, Abra, is contradictory. The Military Amnesty
Commission that decided the case of one of the original accused Jesus Labuguen, held that La
Paz, Abra, was liberated on July 1, 1945, according to its records; and this finding was
accepted by Judge Letargo when he dismissed the case against said accused on March 15,

56
 Additionally, the lower court should not have denied their claim to the benefits of the Guerilla
Amnesty Proclamation No. 8 inspite of contradictory dates of liberation of La Paz, Abra. Even
PEOPLE V BERONILLA if the dates were contradictory, the court should have found for the Beronila, et al because if
there are any reasonable doubt as to whether a given case falls within the (amnesty)
proclamation should be resolved in favor of the accused.
11FEB Judgement reversed, appellants acquitted.

L 4445 | February 28, 1955 | J. JBL Reyes

Obedience to Lawful Order of a Superior
Facts:
Manuel Beronilla, Policarpio Paculdo, Filipino Velasco and Jacinto Adriatico file an appeal
from the judgement of the Abra CFI, which convicted them of murder for the execution of
Arsenio Borjal, the elected mayor of La, Paz, Abra (at the outbreak of war), which was found
to be aiding the enemy.
Borjal moved to Bangued because of death threats was succeeded by Military Mayor Manuel
Beronilla, who was appointed by Lt. Col. Arbold, regimental commander of the 15 th Infantry
of the Phil. Army, operating as guerilla unit in Abra. Simultaneously upon his appointment,
Beronilla received a memorandum which authorized him to appoint a jury of 12 bolo men to
try persons accused of treason, espionage and aiding or abetting the enemy.
Upon the return of Borjal and his family to Abra, to escape bombing in Bangued, he was
placed under custody and tried and sentenced to death by the jury based on various complaints
made by the residents. Beronilla reported this to Col. Arnold who replied, saying I can
only compliment you for your impartial but independent way of handling the whole case.
Two years thereafter, Beronilla, along with the executioner, digger and jury, were indicted for
the murder of Borjal. Soon after, President Manuel Roxas issued Executive Proclamation 8,
which granted amnesty to persons who committed acts in furtherance of the resistance to the
enemy against persons aiding in the war efforts of the enemy.
The rest of defendants applied and were granted amnesty, but Beronilla and others were
convicted on the grounds that the crime was made on purely personal motives and that the
crime was committed after the expiration of time limit for amnesty proclamation.

Issue: W/N the defendant-appellants actions are covered by justifying circumstances for
obedience to lawful order of superior

Held:
Yes. The accused acted upon orders of their superior officers, which as military subordinates,
they could not question and obeyed in good faith without the being aware of its illegality.
The evidence is sufficient to sustain the claim of the defense that arrest, prosecution and trial
of Borjal was done in pursuant to express orders of superiors. Additionally, it could not be
established that Beronilla received the radiogram from Colonel Volckmann, overall area
commander, which called attention to the illegality of Borjals conviction and sentence. Had
Beronilla known the violation, he would not have dared to report it to Arnold. The conduct of
the accused also does not show malice on their part because of the conduct of the trial, defense
through counsel given to Borjal, suspension of trial based on doubts of illegality and death
sentence review sent to the superior officers.
Criminal intent then could not be established. The maxim here is actus non facit reum, nisi
mens rea (Crime is not committed if the mind of the person performing the act complained of
to be innocent).

57
PEOPLE V BERONILLA there are any reasonable doubt as to whether a given case falls within the (amnesty)
proclamation should be resolved in favor of the accused.
Judgement reversed, appellants acquitted.
11FEB

L 4445 | February 28, 1955 | J. JBL Reyes

Obedience to Lawful Order of a Superior
Facts:
Manuel Beronilla, Policarpio Paculdo, Filipino Velasco and Jacinto Adriatico file an appeal
from the judgement of the Abra CFI, which convicted them of murder for the execution of
Arsenio Borjal, the elected mayor of La, Paz, Abra (at the outbreak of war), which was found
to be aiding the enemy.
Borjal moved to Bangued because of death threats was succeeded by Military Mayor Manuel
Beronilla, who was appointed by Lt. Col. Arbold, regimental commander of the 15 th Infantry
of the Phil. Army, operating as guerilla unit in Abra. Simultaneously upon his appointment,
Beronilla received a memorandum which authorized him to appoint a jury of 12 bolo men to
try persons accused of treason, espionage and aiding or abetting the enemy.
Upon the return of Borjal and his family to Abra, to escape bombing in Bangued, he was
placed under custody and tried and sentenced to death by the jury based on various complaints
made by the residents. Beronilla reported this to Col. Arnold who replied, saying I can
only compliment you for your impartial but independent way of handling the whole case.
Two years thereafter, Beronilla, along with the executioner, digger and jury, were indicted for
the murder of Borjal. Soon after, President Manuel Roxas issued Executive Proclamation 8,
which granted amnesty to persons who committed acts in furtherance of the resistance to the
enemy against persons aiding in the war efforts of the enemy.
The rest of defendants applied and were granted amnesty, but Beronilla and others were
convicted on the grounds that the crime was made on purely personal motives and that the
crime was committed after the expiration of time limit for amnesty proclamation.

Issue: W/N the defendant-appellants actions are covered by justifying circumstances for
obedience to lawful order of superior

Held:
Yes. The accused acted upon orders of their superior officers, which as military subordinates,
they could not question and obeyed in good faith without the being aware of its illegality.
The evidence is sufficient to sustain the claim of the defense that arrest, prosecution and trial
of Borjal was done in pursuant to express orders of superiors. Additionally, it could not be
established that Beronilla received the radiogram from Colonel Volckmann, overall area
commander, which called attention to the illegality of Borjals conviction and sentence. Had
Beronilla known the violation, he would not have dared to report it to Arnold. The conduct of
the accused also does not show malice on their part because of the conduct of the trial, defense
through counsel given to Borjal, suspension of trial based on doubts of illegality and death
sentence review sent to the superior officers.
Criminal intent then could not be established. The maxim here is actus non facit reum, nisi
mens rea (Crime is not committed if the mind of the person performing the act complained of
to be innocent).
Additionally, the lower court should not have denied their claim to the benefits of the Guerilla
Amnesty Proclamation No. 8 inspite of contradictory dates of liberation of La Paz, Abra. Even
if the dates were contradictory, the court should have found for the Beronila, et al because if

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