[G.R. NO.
173106 : September 30, 2008] A: The first time he stabbed [sic] me (witness swinging his right arm from
COSME NACARIO, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
CARPIO MORALES, J.:
Petitioner, Cosme Nacario, was charged of Frustrated Murder in an August
27, 1997 Information filed before the Regional Trial Court (RTC) of Iriga City,
the accusatory portion of which reads:
That on or about the 29th day of March, 1997 at about 3:05 o'clock in the
afternoon at Sto. Domingo, Iriga City, Philippines, and within the jurisdiction
of this Honorable Court, the said accused, without authority of law and with
evident premeditation, did, then and there willfully, unlawfully and feloniously
attack and stab with the said [sic] weapon, one Medardo M. de Villa, hitting
the latter at the left side portion of his stomach, accused thereby have [sic]
performed all the acts of execution which would have produced the crime of
murder, but which nevertheless was not produced by reason of causes
independent of the will of the accused, and that is by the timely medical
assistance rendered to the aforesaid victim which prevented his death, to his
damage and prejudice in such amount as may be proven in court.
ACTS CONTRARY TO LAW.
In the afternoon of March 29, 1997, Medardo de Villa (the victim), while on
board a bicycle along a road at Iriga City, met petitioner who was also on
board a bicycle coming from the opposite direction.1 After both alighted from
their respective bicycles, petitioner stabbed the victim with a balisong (fan
knife)2 at the upper left portion of the abdomen.3
The clinical data sheet4 of the victim, who was operated on at the Bicol
Medical Center, showed the following:
x x x
FINAL DIAGNOSIS:
Stab wound, 3 cm., subcostal Area, Anterior Axillary Line, left penetrating the
diaphragm, incising the spleen type I
x x x x (Emphasis and underscoring supplied)cralawlibrary
Not long after the incident, petitioner surrendered to the police.
Petitioner admitted having stabbed the victim. He interposed self-defense,
however, and gave the following version:
As he and the victim met on the road, the victim whom he had earlier seen
"drinking with others" in front of his (the victim's) house blocked his path and,
without warning, swung a fan knife toward him but missed him. The victim
thereafter again thrice attempted to hit him with the knife but also missed him
as he always "sw[ung] his body backward," but on the last attempt, he
(petitioner) was able to wrest the knife from the victim. Sensing danger to his
person when the victim turned his back to pick up stones and "was poised to
strike," he stabbed him once with the knife.5
Q: You also testified that Midardo [sic] de Villa attempted . . . to stab [you] by
a knife, but it was only on the 4th time that you were able to wrest the
[B]atangas knife from him. Now, will you please stand up and demonstrate to
the Honorable Court how were you able to evade these three times Midardo
de Villa's attempt[ed] to stab you with [a] [B]atangas knife?
right to left with him evading the blow while swinging his body backward)[.] I
did not react instantly because I could hear the people in the waiting shed
pacifying him not to continue and the second time was in like manner [sic]
swinging his right hand towards me from left to right with me evading with
blow [sic] by the backward [sic] and the third time that he attempted to stab
me I decided to wrest the [B]atangas knife. So from him [sic] I could sense
he really intends to harm me. The 4th time he attempted I really sense [sic]
that he really determine [sic] to stab me. So I pary [sic] blow with my left
hand and the [B]atanags [sic] knife with my right hand. After which he picked
up stones and it [sic] was in the act of throwing the stones to me that I
have [sic] chance to stab him. After I stabbed him, he fell down and so I
left.6 (Emphasis and underscoring supplied)cralawlibrary
Petitioner added that prior to the incident, there had been several attempts of
the victim to stab him, and even the victim's brothers harassed and
threatened him.7
By Decision of July 5, 2002,8 the Regional Trial Court convicted petitioner of
Frustrated Homicide, disposing as follows:
WHEREFORE, finding accused, COSME NACARIO guilty beyond
reasonable doubt for the crime of frustrated homicide, he is sentenced to
imprisonment of twelve (12) years, ten (10) months and twenty-one (21) days
to thirteen (13) years; nine (9) months and ten (10) days, the medium
of reclusion temporal, minimum period which is minimum of, to [sic] fifteen
(15) years, six (6) months and twenty (20) days to sixteen (16) years, five (5)
months and nine (9) days, the medium of reclusion temporal in its medium
period which is the maximum period of the indeterminate sentence; to pay an
indemnity of P25,000.00; actual damages including attorney [sic] and
doctor's fees of P35,000.00 and to pay the cost.
SO ORDERED.
In ruling out self-defense, the trial court held:
Accused could not claim self-defense because, after having wrestled away
the knife from complainant, if at all complainant was originally in possession
of the knife and tried to stab him [sic], there was already an interval of time
when complainant turned his back from him and picked up a stone.
Assuming without admitting that complainant picked up a stone to throw at
him, he could always run away from the fight.After all he was patient enough
to ward off complainant's attempts to stab him. This version of the accused is
not credible. The court believes that it was accused who was in possession
of the knife all the time when they met and he stabbed him.9 (Emphasis and
underscoring supplied)cralawlibrary
By Decision of May 18, 2006,10 the Court of Appeals affirmed the findings of
the trial court but modified the penalty after considering the mitigating
circumstance of voluntary surrender of petitioner. Thus the appellate court
disposed:
WHEREFORE, premises considered, the assailed July 5, 2002 Decision of
the RTC of Iriga City, Branch 35, in Criminal Case No. IR-4445, which
convicted accused-appellant Cosme Nacario of the crime of Frustrated
Homicide, is hereby AFFIRMED with MODIFICATION that the penalty should
be from two (2) years and four months of prision correccional in its minimum
period, as minimum, to six (6) years and one (1) day of prision mayor in its
minimum period, as maximum. Moreover, accused-appellant Cosme Nacario
is ORDERED to pay the victim, Medardo M. de Villa, in addition to indemnity
of P25,000.00, the amounts of P2,261.55 as actual damages
and P30,000.00 as moral damages.
SO ORDERED. (Underscoring supplied)cralawlibrary
Hence, the present Petition for Review .
Having interposed self-defense, petitioner had the onus of proving its
elements, viz: (1) unlawful aggression on the part of the victim; (2)
employment of reasonable necessity to prevent or repel the aggression; and
(3) lack of sufficient provocation on the part of the person defending
himself.11
Petitioner maintained that the victim provoked the incident by waylaying him,
and that after he wrested the knife from the victim, the latter instantaneously
picked up stones, thus making him (petitioner) believe that "an attack was
still forthcoming and [he] was still threatened by some evil or injury,"12hence,
his stabbing of the victim.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
As for the award of P25,000 as indemnity, there being no legal basis, it must
be deleted.
WHEREFORE, the May 18, 2006 Decision of the Court of Appeals finding
petitioner, Cosme Nacario, guilty beyond reasonable doubt of Frustrated
Homicide is AFFIRMED with MODIFICATION. The award of P25,000 as
indemnity is DELETED; in its stead, the award of P30,000 as temperate
damages is ORDERED. In all other respects, the appellate court's Decision
is affirmed.
Costs de oficio.

Assuming arguendo that unlawful aggression initially came from the victim, SO ORDERED.
the aggression ceased when the victim was divested of his balisong. At that
instant, there was no longer any imminent risk to petitioner's life or personal
safety.

Apropos is this Court's pronouncement in People v. Ebmerga:13

It is clear even from [the accused] Romeo Ebmerga's testimony alone that
when he threw a stone at Rafaelito Nolasco, causing the latter to drop the
knife he was holding, there was no longer any imminent risk or danger to his
life. Thus, when Romeo Ebmerga went on to lunge for the victim's knife on
the ground and thrust it for an untold number of times into the victim's body,
he was not acting to repel an attack or to protect himself from the aggression
of the victim. It strains credulity to accept the version of the defense that
despite dropping the knife, the victim still faced Romeo Ebmerga in a
menacing manner and "with the intention of killing him." (Underscoring
supplied)cralawlibrary

Again assuming arguendo that the vicitm thereafter turned his back and
picked up stones, there was, as the trial court found, before that "an interval
of time" which afforded petitioner time to "run away" as, after all, he had
warded off the four prior attempts to stab him.

As for petitioner's varying claim that the victim was "in the act of throwing the
stones [at him]" on account of which he was afforded a chance to stab him,
the Court finds the same incredible, given the oddity of the victim possibly
throwing stones, whose sizes were not even described, from a distance near
enough for petitioner to reach and stab the victim.
As for petitioner's still another varying claim, clearly an afterthought, that the
victim was able to strike him with a stone before he (petitioner) stabbed the
victim,14 that no claim that petitioner was injured dents credibility thereof.
It is a statutory and doctrinal requirement that the presence of unlawful
aggression is a condition sine qua non for self-defense to be a justifying
circumstance. Such element not being present on the victim's part,
discussion of the rest of the elements of self-defense is rendered
unnecessary.
As did the lower courts, the Court thus brushes aside petitioner's plea of self-
defense. Petitioner's conviction of Frustrated Murder is thus upheld.
On the modification by the appellate court of the penalty imposed by the trial
court, this Court finds the same well-taken, petitioner's voluntary surrender
being a mitigating circumstance.
As for the reduction by the appellate court of the award of actual damages, it
is well-taken too as the documentary evidence for the purpose15 (Exhibit "C"
- "C-13" representing expenses for medicine) totals only the amount
of P2,261.55. And so is the appellate court's award of moral damages in the
amount of P30,000, it being in consonance with law16 and prevailing
jurisprudence.17
SECOND DIVISION
[G.R. No. 125909. June 23, 2000]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERMOGENES
FLORA AND EDWIN FLORA, accused-appellants.
DECISION
QUISUMBING, J.:
Accused-appellants seek the reversal of the decision[1] dated November 7,
1995, of the Regional Trial Court, Branch 26, Santa Cruz, Laguna, in
Criminal Case Nos. SC-4810, 4811 and 4812, finding them guilty beyond
reasonable doubt of the crimes of double murder and attempted murder, and
sentencing them to reclusion perpetua, payment of P50,000.00 for indemnity,
P14,000.00 for burial expenses and P619,800.00 for loss of earning capacity
in Crim. Case SC-4810 for the death of Emerita Roma; reclusion perpetua,
payment of P50,000.00 as indemnity, P14,000.00 for burial expenses and
P470,232.00 for loss of earning capacity for the death of Ireneo Gallarte in
Crim. Case SC-4811; and imprisonment from 2 years, 4 months and 1 day of
prision correccional as minimum to 10 years of prision mayor and payment of
P15,000.00 to Flor Espinas for injuries sustained in Crim. Case SC-4812.
On February 26, 1993, Prosecution Attorney Joselito D.R. Obejas filed three
separate informations charging appellants as follows:
Criminal Case No. 4810
"That on or about January 10, 1993, at around 1:30 oclock in the morning
thereof, in Sitio Silab, Barangay Longos, municipality of Kalayaan, province
of Laguna, and within the jurisdiction of this Honorable Court, accused
Hermogenes Flora @ Bodoy, conspiring and confederating with accused
Edwin Flora @ Boboy, and mutually helping one another, while conveniently
armed then with a caliber .38 handgun, with intent to kill, by means of
treachery and with evident premeditation, did then and there wilfully,
unlawfully and feloniously attack, assault and shoot with the said firearm one
EMERITA ROMA y DELOS REYES, thereby inflicting upon the latter gunshot
wounds on her chest which caused her immediate death, to the damage and
prejudice of her surviving heirs.
That in the commission of the crime, the aggravating circumstances of
treachery and evident premeditation are present."[2]
Criminal Case No. 4811
"That on or about January 10, 1993, at around 1:30 oclock in the morning
thereof, in Sitio Silab, Barangay Longos, municipality of Kalayaan, province
of Laguna, and within the jurisdiction of this Honorable Court, accused
HERMOGENES FLORA @ Bodoy, conspiring and confederating with
accused Erwin [Edwin] Flora @ Boboy, and mutually helping one another,
while conveniently armed then with a caliber .38 handgun, with intent to kill,
by means of treachery and with evident premeditation, did then and there
willfully, unlawfully and feloniously attack, assault and shoot with the said
firearm one IRENEO GALLARTE y VALERA, thereby inflicting upon the latter
gunshot wounds on his chest which caused his immediate death, to the
damage and prejudice of his surviving heirs.
That in the commission of the crime, the aggravating circumstances of
treachery and evident premeditation are present."[3]
Criminal Case No. 4812
"That on or about January 10, 1993, at around 1:30 oclock in the morning
thereof, in Sitio Silab, Barangay Longos, municipality of Kalayaan, province
of Laguna, and within the jurisdiction of this Honorable Court, accused
Hermogenes Flora @ Bodoy, conspiring and confederating with accused
Erwin [Edwin] Flora @ Boboy, and mutually helping one another, while
conveniently armed then with a caliber .38 handgun, with intent to kill, by
means of treachery and with evident premeditation, did then and there
willfully, unlawfully and feloniously attack, assault and shoot with the said
firearm one FLOR ESPINAS y ROMA, hitting the latter on her shoulder, and
inflicting upon her injuries which, ordinarily, would have caused her death,
thus, accused performed all the acts of execution which could have produced
the crime of Murder as a consequence but which, nevertheless did not
produce it by reason of a cause independent of their will, that is, by the timely
and able medical attendance given the said Flor Espinas y Roma, which
prevented her death, to her damage and prejudice."[4]
During arraignment, both appellants pleaded not guilty. Trial thereafter
ensued. Resolving jointly Criminal Cases Nos. SC-4810, SC-4811 and SC-
4812, the trial court convicted both appellants for the murder of Emerita
Roma and Ireneo Gallarte, and the attempted murder of Flor Espinas. The
dispositive portion of the decision reads:
"WHEREFORE, in the light of the foregoing, this Court finds as follows:
In CRIMINAL CASE NO. SC-4810, for the death of Emerita Roma, the Court
finds both accused Hermogenes Flora and Edwin Flora guilty beyond
reasonable doubt of the crime of Murder qualified by treachery and
sentences each of them to suffer the penalty of reclusion perpetua, with all
the accessory penalties of the law, and to indemnify the heirs of the victim
the sums of (a) P50,000.00 as death indemnity; (b) P14,000.00 as expenses
for wake and burial; and (c) P619,800 for lost (sic) of earning capacity,
without any subsidiary imprisonment in case of insolvency and to pay the
costs.
In CRIMINAL CASE NO. SC-4811, for the death of Ireneo Gallarte, the Court
finds both accused Hermogenes Flora and Edwin Flora guilty beyond
reasonable doubt of the crime of Murder, qualified by treachery and with the
aggravating circumstance of evident premeditation and sentences each of
them to suffer the penalty of reclusion perpetua, with all the accessory
penalties of the law, and to indemnify the heirs of the victim the sums of (a)
P50,000.00 as death indemnity; (b) P14,000.00 as expenses for wake and
burial; and (c) P470,232.00 for lost (sic) of earning capacity, without any
subsidiary imprisonment in case of insolvency and to pay the costs.
In CRIMINAL CASE NO. SC-4812, for the injuries sustained by Flor Espinas,
the Court finds both accused Hermogenes Flora and Edwin Flora guilty
beyond reasonable doubt of the crime of Attempted Murder and sentences
each of them to suffer an indeterminate penalty of imprisonment from two (2)
years, four (4) months and one (1) day of prision correccional, as minimum,
to ten (10) years of prision mayor, as maximum, and to pay P15,000.00 to
Flor Espinas as indemnity for her injuries and to pay the costs.
SO ORDERED."[5]
The facts of the case, borne out by the records, are as follows:
Days before the incident, appellant Hermogenes Flora alias "Bodoy," had a
violent altercation with a certain Oscar Villanueva. Oscars uncle, Ireneo
Gallarte, pacified the two.
On the evening of January 9, 1993, a dance party was held to celebrate the
birthday of Jeng-jeng Malubago in Sitio Silab, Barangay Longos, Kalayaan,
Laguna. Appellant Hermogenes Flora, allegedly a suitor of Jeng-jeng
Malubago, attended the party with his brother and co-appellant Edwin Flora,
alias "Boboy". Also in attendance were Rosalie Roma, then a high school
student; her mother, Emerita Roma, and her aunt, Flor Espinas. Ireneo
Gallarte, a neighbor of the Romas, was there too.
The dancing went on past midnight but at about 1:30, violence erupted. On
signal by Edwin Flora, Hermogenes Flora fired his .38 caliber revolver twice.
The first shot grazed the right shoulder of Flor Espinas, then hit Emerita
Roma, below her shoulder. The second shot hit Ireneo Gallarte who slumped
onto the floor. Rosalie, was shocked and could only utter, "si Bodoy, si
Bodoy", referring to Hermogenes Flora. Edwin Flora approached her and,
poking a knife at her neck, threatened to kill her before he and his brother,
Hermogenes, fled the scene.
The victims of the gunfire were transported to the Rural Health Unit in
Longos, Kalayaan, Laguna, where Emerita and Ireneo died.[6]
Early that same morning of January 10, 1993, the police arrested Edwin
Flora at his rented house in Barangay Bagumbayan, Paete, Laguna.
Hermogenes Flora, after learning of the arrest of his brother, proceeded first
to the house of his aunt, Erlinda Pangan, in Pangil, Laguna but later that day,
he fled to his hometown in Pipian, San Fernando, Camarines Sur.
The autopsy conducted by the medico-legal officer, Dr. Ricardo R. Yambot,
Jr., revealed the following fatal wounds sustained by the deceased:
EMERITA ROMA
"a) Gunshot of entrance at the posterior chest wall near the angle of the
axillary region measuring 1 cm. in diameter with clean cut inverted edges
involving deep muscles, and subcutaneous tissues and travel through both
lobes of the lungs, including the great blood vessels.
About 400 cc of clotted blood was extracted from the cadaver. The bullet
caliver 38 was extracted from the lungs.
The cause of her death was attributed to Hypovolemic shock secondary to
massive blood loss secondary to gunshot wound of the posterior chest
wall."[7]
IRENEO GALLARTE
“Gunshot wound of entrance at the left arm, measuring 1 cm. in diameter
with clean cut inverted edges involving the deep muscles, subcutaneous
tissues traveling through the anterior chest wall hitting both lobes of the lungs
and each great blood vessels obtaining the bullet fragments.
About 500 cc. of clotted blood was obtained from the cadaver."
His cause of death was attributed to Hypovelemic shock secondary to
massive blood loss secondary to gunshot wound of the left arm."[8]
Flor Espinas submitted herself to a medical examination by Dr. Dennis
Coronado. Her medical certificate [9] disclosed that she sustained a gunshot
wound, point of entry, 2 x 1 cm. right supra scapular area mid scapular line
(+) contusion collar; and another gunshot wound with point of exit 1 x 1 cm.
right deltoid area.
Three criminal charges were filed against the Flora brothers, Hermogenes
and Edwin, before Branch 26 of the Regional Trial Court of Sta. Cruz,
Laguna. During the trial, the prosecution presented two eyewitnesses,
namely, (1) Rosalie Roma, daughter of one of the victims, Emerita Roma,
and (2) Flor Espinas, the injured victim. Rosalie narrated the treacherous and
injurious attack by Hermogenes Flora against the victims. Flor detailed how
she was shot by him.
Felipe Roma, the husband of Emerita, testified that his wife was forty-nine
(49) years old at the time of her death and was a paper mache maker,
earning an average of one thousand (P1,000.00) pesos a week. He claimed
that his family incurred fourteen thousand (P14,000.00) pesos as expenses
for her wake and burial.
Ireneo Gallartes widow, Matiniana, testified that her husband was fifty-two
(52) years old, a carpenter and a substitute farmer earning one hundred
(P100.00) to two hundred (P200.00) pesos a day. Her family spent fourteen
thousand (P14,000.00) pesos for his wake and burial.
The defense presented appellants Hermogenes and Edwin Flora, and Imelda
Madera, the common-law wife of Edwin. Appellants interposed alibi as their
defense, summarized as follows:
Version of Edwin Flora:
"Edwin Flora, 28 years old, testified that accused Hermogenes Flora is his
brother. On January 10, 1993, around 1:30 in the morning, he was at
Barangay Bagumbayan, Paete, Laguna in the house of Johnny Balticanto,
sleeping with his wife. Policemen came at said house looking for his brother
Hermogenes. Replying to them that his brother was not living there,
policemen took him instead to the Municipal building of Paete and thereafter
transferred and detained him to (sic) the Municipal building of Kalayaan.
He recalled that on January 9, 1993, after coming from the cockpit at about
3:00 p.m. he and his accused brother passed by the house of Julito
Malubago. His brother Hermogenes was courting the daughter of Julito
Malubago. At about 6:00 p.m. he went home but his brother stayed behind
since there would be a dance party that night."[10]
Version of Hermogenes Flora:
"Hermogenes Flora, 21 years old, testified that he did not kill Ireneo Gallarte
and Emerita Roma and shot Flor Espina on January 10, 1993 at about 1:30
in the morning of Silab, Longos Kalayaan Laguna.
On said date, he was very much aslept (sic) in the house of his sister Shirley
at Sitio Bagumbayan, Longos, Kalayaan. From the time he slept at about
8:00 in the evening to the time he woke up at 6:00 in the morning, he had not
gone out of her sisters house. He knew the victims even before the incident
and he had no severe relation with them.
xxx
He also testified that in the morning of January 10, 1993, Imelda Madera
came to their house and told him that his brother Edwin was picked-up by the
policemen the night before. Taken aback, his sister told him to stay in the
house while she would go to the municipal hall to see their brother Edwin.
Thereafter, his aunt and sister agreed that he should go to Bicol to inform
their parents of what happened to Edwin."[11]
Madera corroborated the testimony of her husband.[12]
As earlier stated, the trial court convicted accused-appellants of the crime of
double murder and attempted murder. Appellants now raise this sole
assigned error:
"THE TRIAL COURT ERRED IN CONVICTING THE TWO ACCUSED-
APPELLANTS DESPITE THE FAILURE OF THE PROSECUTION TO
MORALLY ASCERTAIN THEIR IDENTITIES AND GUILT FOR THE
CRIMES CHARGED."
At the outset, it may be noted that the trial court found both appellants have
been positively identified. However, they challenge the courts finding that
they failed to prove their alibi because they did not establish that it was
physically impossible for them to be present at the crime scene. According to
the trial court, by Hermogenes own admission, the house of his sister
Shirley, where appellants were allegedly sleeping, was only one (1) kilometer
away from Sitio Silab, where the offenses allegedly took place. The sole
issue here, in our view, concerns only the plausibility of the appellants alibi
and the credibility of the witnesses who identified them as the perpetrators of
the crimes charged.
For the defense of alibi to prosper, it is imperative that the accused establish
two elements: (1) he was not at the locus delicti at the time the offense was
committed, and (2) it was physically impossible for him to be at the scene at
the time of its commission.[13] The defense of alibi and the usual
corroboration thereof are disfavored in law since both could be very easily
contrived.[14] In the present case, appellants alibi is patently self-serving.
Although Edwins testimony was corroborated by his common-law wife, it is
ineffectual against the positive testimonies of eyewitnesses and surviving
victims who contradicted his alibi. Moreover, an alibi becomes less plausible
as a defense when it is invoked and sought to be crafted mainly by the
accused himself and his immediate relative or relatives.[15] Appellants
defense of alibi should have been corroborated by a disinterested but
credible witness.[16] Said uncorroborated alibi crumbles in the face of
positive identification made by eyewitnesses.[17]
In their bid for acquittal, appellants contend that they were not categorically
and clearly identified by the witnesses of the prosecution. They claim that the
testimonies of the said witnesses were not entitled to credence. They assail
the credibility of two eyewitnesses, namely Rosalie Roma and Flor Espinas,
because of the alleged inconsistencies in their testimonies. For instance,
according to appellants, Rosalie Roma testified she was in the dance hall
when the gunshots were heard, and that she was dancing in the middle of
the dance hall when Hermogenes shot Emerita Roma, Ireneo Gallarte and
Flor Espinas,
"Q....Where were you when Hermogenes Roma shot these Ireneo Gallarte,
Emerita Roma and Flor Espinas?
A....I was dancing, sir. (Emphasis ours.)
Q....And how far were you from Hermogenes Flora when he shot these
persons while you were dancing?
A....Two armslength from me only, sir."[18]
However, to a similar question, later in her testimony, she replied,
"Q....And where were these Emerita Roma, Your mother, Ireneo Gallarte and
Flor Espinas when Hermogenes Flora shot at them?
A....They were beside each other.
Q....And how far were you from these 3 persons?
A....Because they were standing beside the fence and I was only seated
near them, sir."[19] (Emphasis ours.)
On this issue, we do not find any inconsistency that impairs her credibility or
renders her entire testimony worthless. Nothing here erodes the
effectiveness of the prosecution evidence. What counts is the witnesses
admitted proximity to the appellants. Was she close enough to see clearly
what the assailant was doing? If so, is there room for doubt concerning the
accuracy of her identification of appellant as one of the malefactors?
Appellants argue that since the attention of witness Flor Espinas was
focused on the dance floor, it was improbable for her to have seen the
assailant commit the crimes. On cross-examination, said witness testified
that while it was true she was watching the people on the dance floor,
nonetheless, she also looked around (gumagala) and occasionally looked
behind her and she saw both appellants who were known to her.[20]
Contrary to appellants contention that Flor did not have a sufficient view to
identify the assailants, the trial court concluded that Flor was in a position to
say who were in the party and to observe what was going on. On this point,
we concur with the trial court.
Well-settled is the rule that findings of the trial court on the credibility of
witnesses deserve respect, for it had the opportunity to observe first-hand
the deportment of witnesses during trial.[21] Furthermore, minor
inconsistencies do not affect the credibility of witnesses, as they may even
tend to strengthen rather than weaken their credibility.[22] Inconsistencies in
the testimony of prosecution witnesses with respect to minor details and
collateral matters do not affect either the substance of their declaration, their
veracity, or the weight of their testimony.[23] Such minor flaws may even
enhance the worth of a testimony, for they guard against memorized falsities.
Appellants assert that Flor Espinas and Rosalie Roma were biased because
they are relatives of the victim Emerita Roma. However, unless there is a
showing of improper motive on the part of the witnesses for testifying against
the accused, the fact that they are related to the victim does not render their
clear and positive testimony less worthy of credit. On the contrary, their
natural interest in securing the conviction of the guilty would deter them from
implicating other persons other than the culprits, for otherwise, the latter
would thereby gain immunity.[24]
Here, appellants did not present any proof of improper motive on the part of
the eyewitnesses in pointing to the Flora brothers as the perpetrators of the
crime. There is no history of animosity between them. Emerita Roma and
Flor Espinas were merely innocent bystanders when hit by gunfire. Where
eyewitnesses had no grudge against the accused, their testimony is
credible.[25] In the absence of ulterior motive, mere relationship of witnesses
to the victim does not discredit their testimony.[26]
Coming now to the criminal responsibility of appellants. In the present case,
when Hermogenes Flora first fired his gun at Ireneo, but missed, and hit
Emerita Roma and Flor Espinas instead, he became liable for Emeritas
death and Flors injuries. Hermogenes cannot escape culpability on the basis
of aberratio ictus principle. Criminal liability is incurred by any person
committing a felony, although the wrongful act be different from that which he
intended.[27]
We find that the death of Emerita and of Ireneo were attended by treachery.
In order for treachery to exist, two conditions must concur namely: (1) the
employment of means, methods or manner of execution which would ensure
the offenders safety from any defense or retaliatory act on the part of the
offended party; and (2) such means, method or manner of execution was
deliberately or consciously chosen by the offender.[28] When Hermogenes
Flora suddenly shot Emerita and Ireneo, both were helpless to defend
themselves. Their deaths were murders, not simply homicides since the acts
were qualified by treachery. Thus, we are compelled to conclude that
appellant Hermogenes Flora is guilty beyond reasonable doubt of double
murder for the deaths of Emerita Roma and Ireneo Gallarte, and guilty of
attempted murder of Flor Espinas.
Is the other appellant, Edwin Flora, equally guilty as his brother,
Hermogenes? For the murder of Ireneo Gallarte, was there conspiracy
between appellants? For conspiracy to exist, it is not required that there be
an agreement for an appreciable period prior to the occurrence. It is sufficient
that at the time of the commission of the offense, the accused and co-
accused had the same purpose and were united in execution.[29] Even if an
accused did not fire a single shot but his conduct indicated cooperation with
his co-accused, as when his armed presence unquestionably gave
encouragement and a sense of security to the latter, his liability is that of a
co-conspirator.[30] To hold an accused guilty as a co-conspirator by reason
of conspiracy, it must be shown that he had performed an overt act in
pursuance or furtherance of the conspiracy.[31] Edwins participation as the
co-conspirator of Hermogenes was correctly appreciated by the trial court,
viz.:
"Edwin Flora demonstrated not mere passive presence at the scene of the
crime. He stayed beside his brother Hermogenes, right behind the victims
while the dance party drifted late into the night till the early hours of the
morning the following day. All the while, he and his brother gazed ominously
at Ireneo Gallarte, like hawks waiting for their prey. And then Edwins flick of
that lighted cigarette to the ground signaled Hermogenes to commence
shooting at the hapless victims. If ever Edwin appeared acquiescent during
the carnage, it was because no similar weapon was available for him. And he
fled from the crime scene together with his brother but not after violently
neutralizing any obstacle on their way. While getting away, Edwin grabbed
Rosalie Roma and poked a knife at her neck when the latter hysterically
shouted "si Bodoy, Si Bodoy," in allusion to Hermogenes Flora, whom she
saw as the gunwielder. All told, Edwin, by his conduct, demonstrated unity of
purpose and design with his brother Hermogenes in committing the crimes
charged. He is thus liable as co-conspirator."[32]

However, we cannot find Edwin Flora similarly responsible for the death of
Emerita Roma and the injury of Flor Espinas. The evidence only shows
conspiracy to kill Ireneo Gallarte and no one else. For acts done outside the
contemplation of the conspirators only the actual perpetrators are liable. In PEOPLE V. HERMOGENES FLORA
People v. De la Cerna, 21 SCRA 569, 570 (1967), we held:
G.R. NO. 125909

The 2 accused (Hermogenes and Edwin) were convicted for the murder of
"x x x And the rule has always been that co-conspirators are liable only for Emerita and Ireneo and the attempted murder of Flor. The 2 were found to
acts done pursuant to the conspiracy. For other acts done outside the have conspired to kill Ireneo. However, during the commission of the crime,
contemplation of the co-conspirators or which are not the necessary and Emerita was also killed and Flor hit by a bullet.
logical consequence of the intended crime, only the actual perpetrators are
liable. Here, only Serapio killed (sic) Casiano Cabizares. The latter was not
even going to the aid of his father Rafael but was fleeing away when shot."
HELD:
To conclude, appellant Edwin Flora is guilty beyond reasonable doubt only of
the murder of Ireneo Gallarte. He has no liability for the death of Emerita
Roma nor for the injuries of Flor Espinas caused by his co-accused
Hermogenes Flora. Co-conspirators are liable only for acts done pursuant to the conspiracy. For
other acts done outside the contemplation of the co-conspirators or which
WHEREFORE, the decision of the trial court is hereby MODIFIED as follows: are not the necessary and logical consequence of the intended crime, only
the actual perpetrators are liable. Evidence only shows conspiracy to kill
(1)....Appellants Hermogenes Flora and Edwin Flora are found GUILTY Ireneo and no one else. Hence, both can be convicted for the murder of
beyond reasonable doubt of the MURDER of Ireneo Gallarte and sentenced Ireneo. However, only Hermogenes who fired at Emerita and Flor can be
to each suffer the penalty of reclusion perpetua and to pay jointly and convicted for the murder of Emerita and Flor respectively.
severally the heirs of Ireneo Gallarte in the sum of P50,000.00 as death
indemnity; P14,000.00 compensatory damages for the wake and burial; and
P470,232.00 representing loss of income without any subsidiary
imprisonment in case of insolvency.

(2)....Hermogenes Flora is found GUILTY beyond reasonable doubt of the

MURDER of Emerita Roma and the ATTEMPTED MURDER of Flor Espinas.
For the MURDER of EMERITA ROMA, Hermogenes Flora is sentenced to
suffer the penalty of reclusion perpetua, to indemnify the heirs of Emerita
Roma in the sum of P50,000.00 as death indemnity, P14,000.00 as
expenses for wake and burial, and P619,800.00 for loss of earning capacity,
without any subsidiary imprisonment in case of insolvency. For the
ATTEMPTED MURDER of Flor Espinas, Hermogenes Flora is sentenced to
suffer the penalty of imprisonment from two (2) years, four (4) months and
one (1) day of prision correccional as minimum to ten (10) years of prision
mayor, as maximum, and to pay P15,000.00 to Flor Espinas as indemnity for
her injuries.

(3)....Appellant Edwin Flora is ACQUITTED of the murder of Emerita Roma

and the attempted murder of Flor Espinas.

Costs against appellants.

SO ORDERED.
 prosecution presented Vicente Alon (Vicente) and Eddie Roque (Eddie) as
witnesses in the trial that followed; Dr. Ricardo Betita, Jr. (Dr. Betita), Baby
Lou Felipe (Baby Lou), and the three accused the petitioner, Arnaldo Socias,
and Joemar Palma took the witness stand for the defense.

The material points in the testimony of Vicente were summarized by the trial
court in its decision[7] as follows:

Vicente Alon averred that at 5:40 in the afternoon of July 21, 1996, Winnie
SECOND DIVISION
Alon, Wilfredo Cabison, Eddie Roque, and him [sic] were at the public market
of Cuartero, at [sic] the restaurant of Melecio Heyres to eat.[8] Noel
NOEL GUILLERMO y BASILIANO,
Guillermo, Arnel Socias, and Joemar Palma were at the restaurant drinking
Petitioner,
beer. Noel Guillermo and Arnel Socias are known to him since childhood
- versus -
since they come from the same barangay.[9] Joemar Palma is known to him
PEOPLE OF THE PHILIPPINES,
only recently in that incident.[10]
Respondent.
G.R. No. 153287
While sitting at the table inside the restaurant, an altercation between Arnel
Socias and Winnie Alon regarding the cutting of wood by a chain saw [sic]
Present:
transpired. Noel Guillermo suddenly took hold of Winnie Alon and stabbed
the latter at the neck three (3) times.[11] Joemar Palma went to the kitchen
QUISUMBING, J., Chairperson,
and got a knife. Arnel Socias hit him with a bottle of beer by [sic] the head.
CARPIO MORALES,
He fell down and lost consciousness.[12] [Footnotes referring to the pertinent
TINGA,
parts of the record supplied]
VELASCO, JR., and
BRION, JJ.
Significantly, Vicente admitted on cross-examination that he and Winnie
were already drunk even before they went to the restaurant where the
Promulgated:
stabbing took place.[13]
June 30, 2008
x -------------------------------------------------------------------------------------------x
Eddie corroborated the testimony of Vicente on material points, particularly
on the state of their intoxication even before going to the scene of the
DECISION
stabbing. His testimony on what transpired at the restaurant was
summarized in the RTC decision[14] as follows:
BRION, J.:
Eddie Roque alleged that at around 5:40 oclock in the afternoon of July 21,
For our review is the petition[1] filed by the petitioner Noel Guillermo y
1996, he, together with Winnie Alon, Vicente Alon and Wilfredo Cabison,
Basiliano (petitioner) against the decision[2] dated November 15, 2001 and
were [sic] inside the restaurant of Mrs. Heyres at Cuartero Public Market to
the resolution[3] dated April 5, 2002 of the Court of Appeals (CA) in CA-G.R.
leave their tools of the chain saw [sic] and to eat and drink.[15] Noel
CR No. 24181. The challenged decision[4] affirmed the decision of the
Guillermo, Arnel Socias, and Joemer Palma were ahead of them to [sic] the
Regional Trial Court (RTC), Branch 18, Roxas City convicting and penalizing
restaurant and were drinking beer. They invited them and they joined
the petitioner for the crime of homicide with an indeterminate sentence of six
them.[16] Before each of them could fully consume a bottle served upon
(6) years of prision correccional, as minimum, to ten (10) years of prision
each of them, Winnie Alon and Arnel Socias argued about the cutting of
mayor, as maximum. The assailed resolution, on the other hand, denied the
wood by means of a chain saw [sic]. The argument was so heated that each
petitioners motion for reconsideration.
of the protagonists stood up and Arnel Socias took 2 bottles which were
thrown to Vicente Alon who was hit on the forehead.[17]
BACKGROUND
For the death of one Winnie Alon (Winnie), the prosecution charged Arnaldo
Noel Guillermo hugged or embraced Winnie Alon and stabbed him three
Socias,[5] Joemar Palma, and the petitioner with the crime of homicide under
times (3) on [sic] the neck with a Batangueo knife. Arnel Socias went around,
an Information that states:
then behind, and stabbed Winnie Alon once, on the left side of his body, just
below his left armpit, with a pointed object, but he could not determine what
xxx
weapon was used. Joemar Palma also helped in stabbing Winnie Alon once,
hitting him at the right side of his body.[18]
That at or about 5:40 oclock in the afternoon, on or about July 21, 1996, at
Brgy. Poblacion Takas, Municipality of Cuartero, Province of Capiz,
Winnie Alon resisted trying to struggle [sic], but could not move because he
Philippines, and within the jurisdiction of this Honorable Court, the above-
was ganged up by the three.[19] [Footnotes referring to the pertinent parts of
named accused, conspiring, confederating[,] and mutually helping one
the record supplied]
another, armed with knives and with intent to kill, did then and there willfully,
unlawfully and feloniously assault, attack and stab one WINNIE ALON y
Dr. Betita, rural health physician of Cuartero, Capiz, declared on the witness
BILLANES, hitting the latter and inflicting multiple stab wounds on the
stand that he conducted on July 22, 1996 a postmortem examination on the
different parts of his body, which injuries caused his death shortly thereafter.
body of Winnie[20] and made the following findings:
That due to the untimely death of Winnie Alon y Billanes[,] his heirs are
entitled to death indemnity in the amount of P50,000.00 and other damages
pursuant to the provisions of the Civil Code of the Philippines.
POSTMORTEM EXAMINATION

The postmortem examination is done on the remains of Winnie Alon, 31

ACTS CONTRARY TO LAW.[6]
years old, single, from Malagab-i, Cuartero, Capiz, was stab [sic] to death at
about 5:40 P.M. at Pob. Takas, Public Market, Cuartero, Capiz sustaining the
following injuries:
The petitioner and his co-accused were arraigned and pleaded not guilty to
the offense charged with the assistance of their counsel de parte. The
1. Stab wound 1.5 x 3 cm with 6-8 cm depth [L]eft anterior chest at level of
5th rib mid clavicular area.
2. Stab wound 2 x 3 cm with 5 cm depth anterior neck just above the
sternum.
3. Stab wound 2 x 3 cm with 3-5 cm depth at epigastric area.
The most probable cause of death was massive [H]emorrhage secondary to
multiple stab wounds.[21]
According to Dr. Betita, the cause of death was massive hemorrhage due to
multiple stab wounds.[22] He added that the three (3) stab wounds were
probably caused by a sharp-bladed instrument like a knife.[23]
The petitioner gave a different version of the events, summarized in the RTC
decision as follows:
Noel Guillermo testified that at 5:30 in the afternoon of July 21, 1996, he was
in Cuartero at the restaurant of Melecio Heyres, husband of Gertrudes
Heyres, together with Arnel Socias and Joemar Palma drinking beer,
consuming only about half a bottle, when Winnie Alon, Eddie Roque, Vicente
Alon, and Wilfredo Cabison arrived and ordered beer from Babylou Felipe.
Winnie Alon came to him and requested to join them in their table which he
affirmatively answered. Winnie Alon then had an altercation with Arnel
Socias regarding labtik (string used in marking wood to be cut).[24]
Winnie Alon challenged Arnel Socias to a contest on clean or straight cutting
of wood. Arnel declined the challenge claiming that he is only an assistant to
his brother-in-law. Winnie Alon got angry and told him that he has long been
in [the] chain saw [sic] business but youre stupid (gago ka!). Arnel
responded: If the wood is crooked and you would deviate from line, youre
stupid.[25]
Winnie Alon suddenly stood up and said to Arnel: Dont ever call me stupid,
pointing his finger to Arnel. He told them to settle the matter peacefully as
they are friend [sic], but Winnie Alon was so furious and grabbed Arnel
Socias by the collar. Arnel tried to release the hold of Winnie from his collar.
While he was pacifying the two telling them to settle the matter peacefully,
Winnie Alon turned to him and said: you also, then struck him with a beer
bottle. He was hit at the right top of his head thrice. He stood up and boxed
Winnie who again picked up a bottle break [sic] it against the wall, and struck
him with the broken bottle. He stepped back, pulled his knife, and stabbed
him three (3) times but cannot remember what part of his body was hit by his
successive stabs.[26] x x x [Footnotes referring to the pertinent parts of the
record supplied]
Baby Lou, a waitress at the restaurant of Melecio Heyres, narrated that in the
afternoon of July 21, 1996, the petitioner, together with Arnaldo and Joemar,
arrived at the restaurant and ordered beer.[27] A few minutes later, Vicente,
Eddie, Winnie, and Wilfredo Cabison arrived and also ordered beer. She
then saw the group of Winnie transfer to the table occupied by the petitioner
and his companions. Thereafter, the group had a heated argument among
themselves regarding labtik.[28] In the course of the exchange, she saw
Winnie strike the petitioner on the head with a bottle. Winnie and the
petitioner then grappled with each other. At that point, she hid behind the
refrigerator and did not see what happened next. Afterwards, she saw the
bloodied body of Winnie lying outside the restaurant.[29] She likewise saw
the petitioner outside the restaurant; his shirt was splattered with blood.[30]
Dr. Betita, this time testifying as defense witness, stated, among others, that
the contusion hematoma suffered by the petitioner could have been caused
by a hard object like a beer bottle, while the linear abrasion could have been
caused by a fingernail.[31]
Arnaldo Socias testified that on July 21 1996, he, together with the petitioner
and Joemar, was drinking beer at the restaurant of Melecio Heyres[32] when
Winnie stood up and asked if they (Winnies group) could join them at their
table. Arnaldo and his companions agreed. Winnies group then transferred to
the table of Arnaldos group.[33]
The discussion took a bad turn when the matter of cutting by chainsaw was
raised. Winnie challenged Arnaldo to a contest to determine who could do
the cleanest cut. He declined and claimed he does not know how to operate
a chainsaw. To this, Winnie retorted, You are already old in that business,
but your finished product is still crooked. You are all dumb. He countered, If
the wood itself is crooked, you cannot have a straight lumber. You are dumb
if you insist you can. At that point, Winnie stood up and grabbed him by the
collar. The petitioner intervened and told them to settle their differences
peacefully. Winnie then grabbed a bottle and struck the petitioner on the
head three times.[34] Arnaldo added that he did not see who stabbed
Winnie, because while the petitioner and Winnie were grappling, he was
busy fighting with Vicente.[35]
Joemar Palma testified that in the afternoon of July 21, 1996, the petitioner,
Arnaldo, and he were drinking beer at the restaurant of Mr. Heyres when four
persons, who appeared to be drunk (later identified as Vicente, Eddie,
Winnie, and Wilfredo Cabison), entered the restaurant and ordered beer.[36]
After the latter group joined them at their table, Winnie and Arnaldo had a
heated discussion regarding expertise in operating a chainsaw. Winnie
grabbed the shirt collar of Arnaldo in the course of the heated exchange.[37]
The petitioner advised them to calm down, but Winnie struck him (petitioner)
on the head with a beer bottle three times. Vicente also tried to strike
Arnaldo, but the latter managed to duck and so he (Joemar) took the hit
instead. Thereafter, he and Arnaldo engaged Vicente.[38]
The RTC, in its decision of January 8, 2000, convicted the petitioner of the
crime of homicide, but acquitted Arnaldo and Joemar. The dispositive
portion of the decision reads:
WHEREFORE, the evidence on record having established the guilt of Noel
Guillermo as principal in the crime of homicide for stabbing three (3) times
Winnie Alon which caused the latters death, attended by a special or
privileged mitigating circumstance of incomplete justification, and without any
aggravating or mitigating circumstances attendant, he is imposed an
indeterminate sentence of six (6) years of prision correccional, as minimum,
to ten (10) years of prision mayor, as maximum, with the corresponding
accessory penalties, and to pay death indemnity of P50,000.00 to the heirs
of Winnie Alon, in the service of his sentence he shall be credited the period
that he undergone [sic] preventive imprisonment, conformably with Art. 29 of
the Code.
Costs against the accused.
For insufficiency of evidence, the accused Arnaldo Socias and Joemar
Palma are acquitted of the crime charged. The bail bond for their provisional
liberty is CANCELLED AND DISCHARGED.
SO ORDERED.[39] [Emphasis in the original]
The petitioner appealed to the CA whose decision is now assailed in the
present petition. The petitioner essentially claims that the RTC and the CA
erred in failing to recognize the existence of all the elements of self-defense.
THE COURTS RULING
We resolve to deny the petition for lack of merit.
Plea of Self-Defense
We note at the outset that the petitioner does not deny that he killed Winnie.
He expressly made this admission in his testimony of July 15, 1999:
ATTY. VILLAREAL:
Q: And what did you do when he struck you with the bottle?
NOEL GUILLERMO:
A: I was able to move backward and I realized that I have a knife on [sic] the
back of my waist.
Q: And what did you do with your knife?
A: I then stabbed him.
Q: How many times?
A: About three times as far as I can remember.[40] [Emphasis supplied]
The petitioner justifies the stabbing as an act of self-defense.
As the lower courts did, we do not recognize that the petitioner fully acted in
self-defense.
As a rule, the prosecution bears the burden of establishing the guilt of the
accused beyond reasonable doubt. However, when the accused admits the
killing and, by way of justification, pleads self-defense, the burden of
evidence shifts; he must then show by clear and convincing evidence that he
indeed acted in self-defense. For that purpose, he must rely on the strength
of his own evidence and not on the weakness of the prosecutions
evidence.[41]
The elements that the accused must establish by clear and convincing
evidence to successfully plead self-defense are enumerated under Article
11(1) of the Revised Penal Code:
ART. 11. Justifying circumstances. The following do not incur any criminal
liability:
1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending
himself.
As a justifying circumstance, self-defense may be complete or incomplete. It
is complete when all the three essential requisites are present; it is
incomplete when the mandatory element of unlawful aggression by the victim
is present, plus any one of the two essential requisites.[42]
In the present case, we find it beyond dispute that the victim Winnie started
the fight that ended in his death; he struck the petitioner on the head when
the latter intervened to pacify the quarrel between Winnie and Arnaldo. In
short, the victim was the unlawful aggressor while the petitioner was in the
lawful act of pacifying the quarreling parties; thus, the latter has in his favor
the element of unlawful aggression by the victim.
We consider it also established that the petitioner did not provoke the fight
that ensued; he was a third party to the quarrel between the original
protagonists Winnie and Arnaldo and did not at all initiate any provocation to
ignite the quarrel. Thus, the petitioner also has the element of lack of
sufficient provocation in his favor.
The third element the reasonableness of the means to repel the aggression
is the critical element that the lower courts found lacking in the petitioners
case. Generally, reasonableness is a function of the nature or severity of the
attack or aggression confronting the accused, the means employed to repel
this attack, the surrounding circumstances of the attack such as its place and
occasion, the weapons used, and the physical condition of the parties which,
when viewed as material considerations, must show rational equivalence
between the attack and the defense.[43] In People v. Escarlos,[44] this Court
held that the means employed by a person invoking self-defense must be
reasonably commensurate to the nature and the extent of the attack sought
to be averted. In Sienes v. People,[45] we considered the nature and number
of wounds inflicted on the victim as important indicia material to a plea for
self-defense.
In the present case, the attack on the petitioner came as he intervened in a
quarrel between the victim and another party. As we concluded above, we
deem it established that the victim was the unlawful aggressor who attacked
the petitioner. Physical evidence shows that indeed the petitioner suffered
the following injuries:
1. Contusion Hematoma 2 x 3 left parital area just above the left ear.
2. Linear abrasion 3 4 cm left hand medial side.
3. Linear abrasion 2 3 cm left head ulnar side.[46]
The weapons that caused these injuries were a beer bottle and, quite
possibly, fingernails as the victim and the appellant grappled with each
other.[47] In contrast, the victim suffered three stab wounds: at the neck, at
the abdomen and in the chest. The weapon used was a Batangas knife that
admittedly belonged to the petitioner. Thus, the physical evidence in the case
stands.
The petitioner claims self-defense on the position that Winnie, after hitting
him on the head three times with an empty bottle, grabbed another bottle,
broke it against the wall, and thrust it towards him. It was at this point that the
petitioner used his knife to inflict Winnies fatal wounds. Clearly, the petitioner
wants to impress upon us that his response to Winnies attack was
reasonable; he used a knife to repel an attacker armed with a broken beer
bottle.
Several reasons militate against our acceptance of the petitioners version
and interpretation of events.
First, there is intrinsic disproportion between a Batangas knife and a broken
beer bottle. Although this disproportion is not conclusive and may yield a
contrary conclusion depending on the circumstances, we mention this
disproportionality because we do not believe that the circumstances of the
case dictate a contrary conclusion.
Second, physical evidence shows that the petitioner suffered only one
contusion hematoma at the parietal area above the left ear. Unless the three
(3) beer bottle blows that the petitioner alleged all landed on the same site a
situation that could have incapacitated the petitioner the more plausible
conclusion from the physical evidence is that the petitioner received only one
blow, not three as he claimed. Contrary to what the petitioner wishes to
imply, he could not have been a defender reeling from successive head
blows inflicted by the victim.
Third, the victim, Vicente, and Eddie, were already drunk when they arrived
at the restaurant before the fatal fight. This state of intoxication, while not
critically material to the stabbing that transpired, is still material for purposes
of defining its surrounding circumstances, particularly the fact that a broken
beer bottle might not have been a potent weapon in the hands of a drunk
wielder.
Fourth, and as the CA aptly observed as well, the knife wounds were all
aimed at vital parts of the body, thus pointing against a conclusion that the
petitioner was simply warding off broken beer bottle thrusts and used his
knife as a means commensurate to the thrusts he avoided. To be precise,
the petitioner inflicted on the victim: one stab wound at the chest, 6-8 cms.
deep, at the 5th rib clavicular area, or in plainer terms, in the area of the
victims heart; another was at the neck, 5 cms. deep, just above the
breastbone; and a last one was in the abdominal area, 3-5 cms. deep. The
depth of these wounds shows the force exerted in the petitioners thrusts
while the locations are indicative that the thrusts were all meant to kill, not
merely to disable the victim and thereby avoid his drunken thrusts.
Fifth, in appreciating the facts, the RTC and the CA were one in the
conclusion to disbelieve the petitioners allegation of complete self-defense,
as reflected in the CAs further cogent observations that:

(b) If, indeed the deceased picked up another bottle of beer, hit the same
against the wall, resulting in the breakage of the bottle, and with it, hit the
Appellant anew, it behooved the Appellant to have rushed posthaste to the
police station and report the stabbing, with the request that a policeman be
dispatched to the locus criminis and confirm the presence of broken pieces
of beer bottle in the restaurant. The Appellant did not. He and his
companions, Arnaldo and Joemar, fled from the scene, via the back door,
and escaped on board a motorcycle.
(c) Neither Arnaldo, Joemar, or Babylou corroborated the claim of the
Appellant that, after the Appellant boxed Winnie, who lost his hold of the
bottle of beer, he picked up another bottle and struck the bottle of beer
against the wall and hit the Appellant with the bottle. The appellant relied
solely on is own testimony to buttress his defense.
(d) The Municipal Trial Court conducted a preliminary investigation of the
Criminal Complaint filed against the Appellant, Arnaldo, and Joemar.
However, the Appellant did not submit any Counter-Affidavit claiming that he
was impelled to stab Winnie three (3) successive times on mortal parts of his
body and killing [sic] him because Winnie picked up a bottle, hit the same
against a wall and hit the Appellant anew with the broken bottle.[48]
[Underscoring in the original]
We see no reason to disturb these findings as they are based on existing
evidence, and the conclusions drawn therefrom are patently reasonable. We
have time and again held that the findings of facts of the trial court, its
assessment of the credibility of witnesses and the probative weight of their
testimonies, and the conclusions based on the these factual findings are to
be given the highest respect; the trial court enjoys the unique advantage of
being able to observe, at close range, the conduct and deportment of
witnesses as they testify. These factual findings, when adopted and
confirmed by the CA, are final and conclusive and need not be reviewed on
the appeal to us. We are not a trier of facts; as a rule, we do not weigh anew
the evidence already passed on by the trial court and affirmed by the CA.[49]
Only after a showing that the courts below ignored, overlooked,
misinterpreted, or misconstrued cogent facts and circumstances of
substance that would alter the outcome of the case, are we justified in
undertaking a factual review. No such exceptional grounds obtain in this
case.
is determined by taking into account the attendant modifying circumstances,
applying Article 64 of the Revised Penal Code.[51] Since no aggravating nor
mitigating circumstance intervened, the maximum of the indeterminate
penalty shall be prision mayor in its medium period whose range is from 8
years and 1 day to 10 years.
To determine the minimum of the indeterminate penalty, prision mayor has to
be reduced by one degree without taking into account the attendant
modifying circumstances. The penalty lower by one degree is prision
correccional whose range is from 6 months and 1 day to 6 years. The trial
court is given the widest discretion to fix the minimum of the indeterminate
penalty provided that such penalty is within the range of prision correccional.
The CA affirmed the indeterminate penalty of six (6) years prision
correccional, as minimum, to ten (10) years of prision mayor, as maximum,
as imposed by the RTC on petitioner. We affirm this to be the legally correct
and proper penalty to be imposed upon petitioner.
We also affirm the P50,000.00 death indemnity awarded to Winnies heirs, in
accordance with prevailing jurisprudence.[52]
We add that moral damages should be awarded as they are mandatory in
murder and homicide cases without need of allegation and proof other than
the death of the victim.[53] The award of P50,000.00 as moral damages is,
therefore, in order.
WHEREFORE, in light of all the foregoing, we DENY the petition. The
assailed decision and resolution of the CA dated November 15, 2001 and
April 5, 2002, respectively, in CA-G.R. CR No. 24181 are AFFIRMED with
the MODIFICATION that the petitioner is ordered to pay the heirs of Winnie
Alon the amount of P50,000.00 as moral damages. Costs against the
petitioner.
SO ORDERED.

In sum, we rule that there was no rational equivalence between the means of
the attack and the means of defense sufficient to characterize the latter as
reasonable.

The Proper Penalty

The imposable penalty for homicide under Article 249 of the Revised Penal
Code is reclusion temporal in its full range.[50] Article 69 of the Code
however provides that:

ART. 69. Penalty to be imposed when the crime committed is not wholly
excusable. A penalty lower by one or two degrees than that prescribed by
law shall be imposed if the deed is not wholly excusable by reason of the
lack of some of the conditions required to justify the same or to exempt from
criminal liability in the several cases mentioned in Articles 11 and 12,
provided that the majority of such conditions be present. The courts shall
impose the penalty in the period which may be deemed proper, in view of the
number and nature of the conditions of exemption present or lacking.

Since the petitioners plea of self-defense lacks only the element of

reasonable means, the petitioner is, therefore, entitled to the privileged
mitigating circumstance of incomplete self-defense. Consequently, the
penalty for homicide may be lowered by one or two degrees, at the discretion
of the court.

The penalty which the RTC imposed and which the CA affirmed lowered the
penalty of reclusion temporal by one degree, which yields the penalty of
prision mayor. From this penalty, the maximum of the indeterminate penalty
FIRST DIVISION

[G.R. No. 131839. January 30, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARANDE COLINA

ADLAWAN @ RANDIE, accused-appellant.

DECISION

YNARES-SANTIAGO, J.:

This is an appeal from the June 23, 1997 Decision[1] of the Regional Trial
Court of Mandaue City, Branch 28, in Criminal Case No. DU-3463, convicting
accused-appellant of the crime of Murder and sentencing him to suffer the
indeterminate penalty of ten (10) years and one (1) day of prision mayor, as
minimum, to seventeen (17) years and one (1) day of reclusion temporal, as
maximum; and to pay the heirs of the deceased the sum of P50,000.00 as
death indemnity, P18,850.00 as actual damages and the costs.

The Information against accused-appellant reads:

That on or about the 15th day of November, 1992, in the City of Mandaue,
Philippines, and within the jurisdiction of this Honorable Court, the
aforenamed accused, with deliberate intent to kill, treachery and evident
premeditation, did then and there wilfully, unlawfully and feloniously attack,
assault, and shot Nequito Ortizano with a revolver, thereby inflicting upon the
latter mortal wound at his vital portion which caused his death soon
thereafter.

CONTRARY TO LAW.[2]

Upon arraignment on March 31, 1997, accused-appellant pleaded not

guilty.[3] Thereafter, trial ensued.

The prosecutions account of the antecedent facts are as follows: At dawn of

November 15, 1992, the deceased, together with prosecution witnesses
Benjamin Basubas and Quirino Cinco, and a certain Oliver Bonayan, were
inside a fenced disco area in Sitio Oril, Mandaue City. At 2:00 a.m., Benjamin
Basubas and Quirino Cinco were alerted by a commotion outside. When they
rushed out, they saw the deceased raising his hands in front of accused-
appellant, who was then in the company of Barangay Tanod Jerry Diaz and
Jet Bonita. Likewise present was accused-appellant's father, Barangay
Tanod Crispulo Adlawan, who was lying on the ground unconscious.
Prosecution witnesses Benjamin Basubas and Quirino Cinco stood
approximately one meter away from the deceased. All of a sudden, accused-
appellant drew a gun from his waist, pointed it at the deceased, saying, this
is the one.[4] He immediately fired the gun, hitting the deceased on the
chest. The latter staggered toward the direction of Benjamin Basubas. He
was able to hold on to a deaf-mute bystander, but fell on a shallow canal and
landed on his belly with his head resting on the bank of the canal. Accused-
appellant followed the deceased, turned the latters head and delivered a fatal
shot hitting him above the right ear. Thereafter, accused-appellant
surrendered the gun to a group of Barangay Tanod.[5]

The Necropsy Report shows the postmortem findings and the cause of death
of the victim, thus:

II. Pertinent Findings:

1. Gunshot Wound, Entrance, 0.5 cm. x 0.5 cm., located at the left parietal
region 4 cm. above the right ear. The entrance wound has an inverted
periphery. The bullet slug went thru the brain tissues and pierced thru the
right parietal bone, where the slug was embedded and extracted at the scalp
of the right parietal region.

2. Gunshot Wound, Entrance, 0.5 cm., located at the left supraclavicular at

the medial part, with inverted periphery and contusion, collar. The bullet slug
went downward and backwards hitting the upper lobes of the left and right
lungs and exited thru the inferior border of the right scapula. The exit wound
measures 1 cm. x 1 cm. with irregular everted edges.
Gunshot Wounds Number 1 and 2 resulted to a massive hemorrhage of the
brain, the left and right lungs.
III. Cause of Death:
SHOCK, IRREVERSIBLE. Secondary to Massive Hemorrhage due to
Multiple Gun Shot Wounds.[6]
On the other hand, the defense averred that at around 2:00 in the morning of
November 15, 1992, while accused-appellant was inside a fenced disco area
in Sitio Oril, Mandaue City, he heard somebody shouting and when he turned
to the source of the disturbance, he saw his father, lying on the ground
unconscious and with a bloodied face. Accused-appellant dashed to his
father whom he thought was already dead. As he tried to lift him, he saw the
deceased about 2 1/2 arms length away, holding a gun and told him, Do you
want to follow your father?[7] Thereafter, accused-appellant lunged at the
deceased, twisted his hand, forcing the muzzle of the gun to be pointed at
the deceaseds chest. Suddenly, the gun went off, causing the deceased to
fall in a canal. Accused-appellant was able to get hold of the gun and again
fired at the deceased. Thereafter, he fled and hid in Manila[8] until January
23, 1997, when he finally decided to surrender to Mayor Alfredo M. Ouano
and P/Supt. Rolando Borres.[9]
After trial, the court a quo rendered the assailed decision, the dispositive
portion of which reads:
WHEREFORE, finding the herein accused ARANDE COLINA ADLAWAN @
RANDIE guilty beyond reasonable doubt for the crime of Murder, the said
accused is hereby sentenced to undergo the indeterminate penalty by
imprisonment of TEN (10) YEARS and ONE (1) DAY of prision mayor as
minimum to SEVENTEEN (17) YEARS and ONE (1) DAY of reclusion
temporal as maximum, with the accessories of the law, to indemnify the legal
heirs of Nequito Ortizano the amount of Fifty Thousand (P50,000.00) Pesos
by reason of his death, P18,850.00 as actual damages, and to pay the costs.
The accused, being a detention prisoner, shall be credited in the service of
his sentence full time during which he has undergone preventive
imprisonment.
SO ORDERED.[10]
Hence, the instant appeal. Accused-appellant contends that:
I. THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-
APPELLANT OF THE CRIME OF MURDER CONSIDERING THAT THE
PROSECUTION FAILED TO ESTABLISH BEYOND REASONABLE DOUBT
THE ATTENDANCE OF TREACHERY AND EVIDENT PREMEDITATION,
AND THE RECORDS WILL SHOW THAT THE ACCUSED-APPELLANT
ONLY OFFERED TO PLEAD GUILTY TO THE LESSER OFFENSE OF
HOMICIDE.
II. ANENT HERETO, THE COURT A QUO ERRED TO APPRECIATE (sic)
THE ACCUSED-APPELLANT'S WILLINGNESS TO ENTER A PLEA OF
GUILTY TO THE LESSER OFFENSE OF HOMICIDE AS A MITIGATING
CIRCUMSTANCE.
III. FURTHER TO THIS, ASSUMING THAT THE ACCUSED-APPELLANT IS
INDEED GUILTY, THE COURT A QUO FAILED TO LIKEWISE
APPRECIATE THE PRIVILEGED MITIGATING CIRCUMSTANCE OF
INCOMPLETE SELF-DEFENSE/DEFENSE OF RELATIVE WHICH WAS
SUFFICIENTLY ESTABLISHED.
IV. IN APPRECIATING THE EVIDENCE ON RECORD, THE COURT A
QUO ERRED IN ACCORDING GREATER WEIGHT AND CREDENCE TO
THE TESTIMONIES OF THE PROSECUTION WITNESSES DESPITE THE
FACT THAT THE SAME LACK CREDIBILITY AND CANNOT SUSTAIN A
CONVICTION OF THE ACCUSED-APPELLANT.
V. THE COURT A QUO ERRED IN AWARDING ACTUAL DAMAGES OF
P18,850.00 TO THE HEIRS OF THE VICTIM NOTWITHSTANDING THAT
THE SAME WERE NEVER DULY PROVEN.[11]
The appeal has no merit.
The task of assessing the conflicting versions of the defense and the
prosecution is a matter best determined by the trial court who had the
untrammeled opportunity to observe the witnesses demeanor and
deportment on the witness stand, and therefore could better discern if such
witnesses were telling the truth or not. Hence, unless the trial judge plainly
overlooked certain facts of substance and value which, if considered, might
affect the result of the case, his assessment on credibility of witnesses must
be respected.[12]
After a careful and thorough review of the testimony of prosecution witnesses
Benjamin Basubas and Quirino Cinco, we are convinced that the trial court
did not err in giving credence to their declarations which were given in a
direct, positive and straightforward manner. Moreover, the defense failed to
show that the prosecution witnesses had improper motive to give a false
narration of the circumstances surrounding the death of the deceased.
Likewise, the trial court correctly appreciated the qualifying circumstance of
treachery. The essence of treachery is the sudden and unexpected attack,
depriving the victim of any real chance to defend himself, thereby ensuring
its commission without risk to the aggressor.[13] At the time accused-
appellant fired the first shot, the deceased was unarmed and had his hands
raised. The deceased was therefore in no position to put up any defense
such as would present a risk to accused-appellant. Moreover, the second
shot fired by accused-appellant clearly foreclosed any doubt as to the
attendance of treachery. When he turned the head of the deceased before
he fired the second shot, accused-appellant was manifestly determined to
have a better shot at the head of the deceased who was already lying
helpless on the ground.
The privileged mitigating circumstance of incomplete self-defense cannot be
appreciated in favor of accused-appellant. Unlawful aggression is a condition
sine qua non for self-defense, whether complete or incomplete.[14] From the
version of the prosecution, which the Court finds credible, the deceased did
not commit any unlawful aggression towards accused-appellant. On the
contrary, it was accused-appellant who was the aggressor when he shot the
deceased who was unarmed and raising his hands.
In the same vein, the circumstance of incomplete defense of a relative is
unavailing. It is settled that a person making a defense has no more right to
attack an aggressor when the unlawful aggression has ceased.[15] In the
instant case, accused-appellant was not justified in attacking the deceased
as the latter had his hands raised and was no longer poised to attack
accused-appellant's father at the time he was shot.
Furthermore, the acts of the deceased immediately prior to the shooting did
not constitute unlawful aggression. Unlawful aggression requires an actual,
sudden and unexpected attack, or imminent danger thereof, and not merely
a threatening or intimidating attitude. It must be such as to put in real peril
the life of the person defending himself and not a mere imagined threat.[16]
In his direct testimony, accused-appellant did not categorically declare that
the deceased was aiming the gun at him, or about to shoot him. Right after
he allegedly heard the deceaseds remark, Do you want to follow your father,
he immediately lunged at him, twisted the gun toward his chest and fired.
Clearly, therefore, there was no real peril to the life of accused-appellant. In
People v. Escoto,[17] we held that the mere apprehension that the supposed
aggressor would shoot the person invoking self-defense is not justified.
Failing to discharge the burden of proving unlawful aggression, accused-
appellant's claim of incomplete self-defense cannot prosper.
The trial court, however, erred in appreciating the mitigating circumstance of
voluntary surrender in favor of accused-appellant. To be considered a
mitigating circumstance, voluntary surrender must be spontaneous. The
conduct of the accused, and not his intention alone, after the commission of
the offense, determines the spontaneity of the surrender. In People v.
Mabuyo,[18] we held that the surrender is not spontaneous where it took the
accused almost nine months from the issuance of the warrant of arrest
against him before he presented himself to the police authorities. With more
reason then that we should not appreciate the mitigating circumstance of
voluntary surrender in the case at bar since it took accused-appellant more
than three years from the issuance of the warrant of arrest on September 23,
1993 before he finally decided to surrender on January 23, 1997.
Nevertheless, the mitigating circumstance of passion or obfuscation should
be appreciated to mitigate accused-appellant's criminal liability. The
requisites of this mitigating circumstance are: (1) that there be an act, both
unlawful and sufficient to produce such a condition of mind; and (2) said act
which produced the obfuscation was not far removed from the commission of
the crime by a considerable length of time, during which the perpetrator
might recover his normal equanimity.[19]
Hence accused-appellant should be ordered to pay the amount of
P443,700.00 for the loss of earning capacity of the deceased.
WHEREFORE, in view of all the foregoing, the Decision of the Regional Trial
Court of Mandaue City, Branch 28, in Criminal Case No. DU-3463, convicting
accused-appellant of the crime of Murder, is AFFIRMED with the
MODIFICATION that accused-appellant is sentenced to suffer the
indeterminate penalty of ten (10) years and one (1) day of prision mayor, as
minimum, to seventeen (17) years, four (4) months and one (1) day of
reclusion temporal, as maximum, and to pay in addition to the P50,000.00
death indemnity and the costs, the amount of P50,000.00 as moral damages;
P10,000.00 as temperate damages and the amount of P443,700.00 for the
loss of earning capacity of the deceased.
SO ORDERED.

In the case at bar, accused-appellant thought his father whose face was
bloodied and lying unconscious on the ground was dead. Surely, such a Ruling: Nevertheless, the mitigating circumstance of passion or obfuscation
scenario is sufficient to trigger an uncontrollable burst of legitimate passion. should be appreciated to mitigate accused-appellant's criminal liability. The
His act, therefore, of shooting the deceased, right after learning that the latter requisites of this mitigating circumstance are: (1) that there be an act, both
was the one who harmed his father, satisfies the requisite of the mitigating unlawful and sufficient to produce such a... condition of mind; and (2) said
circumstance of passion or obfuscation under Paragraph 6, Article 13 of the act which produced the obfuscation was not far removed from the
Revised Penal Code. commission of the crime by a considerable length of time, during which the
perpetrator might recover his normal equanimity
The penalty for Murder at the time of the commission of the offense is
Reclusion Temporal in its maximum period to Death. There being one Principles: It is settled that a person making a defense has no more right to
mitigating circumstance of passion or obfuscation, and no aggravating attack an aggressor when the unlawful aggression has ceased.
circumstance to offset it, the penalty shall be imposed in its minimum period,
i.e., Reclusion Temporal maximum. Applying the Indeterminate Sentence
Law, the maximum sentence shall be reclusion temporal in its maximum
period and the minimum shall be taken from the next lower penalty, which is
prision mayor maximum to reclusion temporal medium. Hence, accused-
appellant should be meted the penalty of ten (10) years and one (1) day of
prision mayor as minimum to seventeen (17) years, four (4) months, and one
(1) day of reclusion temporal as maximum.

As to accused-appellant's civil liability, we agree with the accused-appellant

that the award of P18,850.00 as actual damages to the heirs of the deceased
lacks basis. In lieu of actual damages, the heirs of the deceased are entitled
to temperate damages in the amount of P10,000.00. Temperate damages
are awarded where pecuniary loss is proved but not the amount thereof.[20]

Moral Damages in the amount of P50,000.00 should likewise be awarded for

the emotional suffering of the deceased's heirs.[21]

The wife of the deceased testified that her husband, a 29-year old driver and
spray man at the time of his death, was earning P100.00 daily.[22] Using the
American Expectancy Table of Mortality,[23] the loss of his earning capacity
should be computed as follows:

Net = Life expectancy x Gross Annual Income (GAI) - Living expenses

Earning [2/3 (80-age at death)] (daily wage) x 261 (No. of (50% of GAI)

Capacity working days in a yr.)]

= 2/3 [(80-29)] x [(P100.00 x 261)] - 50%

= 2/3 (51) x P26,100.00 - 13,050.00

= 34 (P13,050.00)

= P443,700.00

SECOND DIVISION
JOVITO CABUSLAY, G.R. No. 129875
Petitioner,
Present:
PUNO, J.,
Chairman,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR.,
TINGA, and
PEOPLE OF THE PHILIPPINES CHICO-NAZARIO, JJ.
and SANDIGANBAYAN (Third
Division),
Respondents.
Promulgated:
September 30, 2005
x-------------------------------------------------------------------x
DECISION
TINGA, J.:
Assailed in this petition for review[1] under Rule 45 of the 1997 Rules of Civil
Procedure is the Decision[2] dated 25 June 1997 of the Sandiganbayan in
Criminal Case No. 19586 finding Jovito Cabuslay, petitioner herein, guilty
beyond reasonable doubt of the crime of homicide and sentencing him as
follows:
WHEREFORE, accused Celso G. Regencia, Rosello Canoy, Nilo Montebon
and Gerry Cane are ACQUITTED on reasonable doubt. Accused Jovito
Cabuslay is found GUILTY beyond reasonable doubt of the crime of
homicide and is sentenced to an indeterminate penalty of imprisonment of
Ten (10) years and One (1) Day of prision mayor as minimum, to Fourteen
(14) Years, Eight (8) Months and One (1) Day of Reclusion Temporal, as
maximum, with all the accessory penalties provided for by law, and to
indemnify the heirs of Pacquito Umas-as in the amount of Fifty Thousand
Pesos (P50,000.00) for actual damages and Fifty Thousand Pesos
(P50,000.00) for moral damages, and to pay the costs.
SO ORDERED.[3]
In an Information[4] dated 10 August 1993, petitioner SPO2 Jovito Luna
Cabuslay, Senior Inspector Celso Gomera Regencia, SPO4 Rosello
Rodriguez Canoy, C2C Nilo Rico Montebon and C2C Gerry Orillaneda Cane
were charged with murder, committed as follows:
That on or about August 5, 1992, in Kauswagan, Lanao del Norte,
Philippines, within the jurisdiction of this Honorable Court, the said accused,
SENIOR INSPECTOR CELSO G. REGENCIA, SPO4 ROSELLO CANOY,
SPO2 JOVITO CABUSLAY, C2C NILO MONTEBON AND C2C GERRY
CANE, all public officers, being then members of the Philippine National
Police assigned at the PNP Provincial Headquarters of Lanao del Norte,
acting in the capacities aforesaid and conspiring, confederating and helping
one another, while manning a
mobile checkpoint at Libertad, Kauswagan, Lanao del Norte, thus committing
the offense in relation to office, and with intent to kill, did then and there
wilfully, unlawfully, feloniously and treacherously shoot PAQUITO UMAS-AS,
with their firearms, thereby inflicting mortal wounds upon the latter which
caused his instantaneous death.[5]
On arraignment, petitioner and his co-accused all pleaded not guilty.
Forthwith, trial ensued with the prosecution presenting as witnesses Dr.
Tammy Uy, Bernabe Purificacion Arenga, Leoncio Tagapulot Zaragosa and
Generoso Caayao Umas-as.
The prosecution presented evidence proving the following as facts:
Paquito Umas-as, 34, was one of the four children of Generoso Umas-as of
Bulua, Cagayan de Oro City. Still single, Paquito earned a living as a
collector of payments for assorted articles such as jackets, mats, thermos
and plates that he sold on credit. Paquito collected as much as P70,000.00
for a period of four months and the net profit of such collections was divided
equally between him and his employer. [6]
In collecting payments, Paquito used a motorcycle he bought on credit from
his employer.[7] His collection brought him to such places as Manticao, Iligan
and Kolambogan.[8] He rented a house in Iligan City but every fifteenth
(15th) day of the month, Paquito would go home to his family to give them a
sack of rice.[9]
At around 8:30 in the morning of 5 August 1992, Leoncio Tagapulot
Zaragosa, a refrigeration technician helper and resident of Roosevelt Street,
Iligan City, was conversing with Felix Lauriana[10] near the school building in
Lapayan, Libertad, Kauswagan, Lanao del Norte when a Hammer (Hummer)
truck parked in front of them.[11] Four policemen alighted, followed by a
driver. The police thereafter halted the collector who was riding a motorcycle
from Lapayan. The collector was wearing a blue denim jacket with folded
sleeves and blue denim pants.[12]
The police asked the collector to show his identification card (ID). The
collector took the ID out of his left pocket and when it reached the front man,
one of the policemen, who Zaragosa later verified as the petitioner, opened
fire at the collector whose right hand was then raised. The four other
policemen meanwhile had their firearms pointed at the collector. [13]
Petitioner, who was four meters away from the collector, consumed the
entire magazine of his M-16 armalite in firing at him. The collector fell to the
ground and was still moving when the police placed him on board a vehicle
and brought him to Kolambugan.[14] One of the policemen rode on the
collectors motorcycle and likewise headed for Kolambugan.[15]
Upon the request of Pedro P. Legaspi, barangay captain of Bulua, Cagayan
de Oro City,[16] NBI forensic chemist Bernabe P. Arenga examined the
victims body, later identified as Paquito Umas-as, on 10 August 1992 to
determine the presence of gunpowder nitrates on his hands. Arengas report
revealed that the victim was negative for gunpowder nitrates.[17] Arenga
opined that on the average, nitrates would be lost within a seventy-two (72)-
hour period; that there had been instances when the substance would
remain on a living person up to nine days; that nitrates could not penetrate
rubber gloves; that no amount of washing can remove the nitrates; and that
even the application of formalin does not affect the presence of nitrates in the
hands of a person.[18]
On 11 August 1992, Dr. Tammy Uy, a medico-legal officer of the NBI in
Cagayan de Oro City, conducted a post-mortem examination on the body of
Paquito Umas-as. At the time of examination, the victims body had already
been cleaned and embalmed. Dr. Uys examination disclosed that the cause
of death was severe hemorrhage secondary to multiple gunshot wounds.
There were eight (8) gunshot wounds and each wound was considered
fatal.[19]
To prove damages, Generoso Umas-as testified that he lost consciousness
upon learning of the death of his son Paquito. Paquitos family spent
P8,000.00 for the wake and P10,000.00 for his burial. Paquito had left his
father P12,000.00 to pay for some appliances the former had bought; but the
latter, to underwrite funeral expenses, still had to sell his land for
P100,000.00 only P25,000.00 of which had been paid in advance by the
buyer. However, Generoso could not remember where he placed the
receipts for the wake and burial expenses.[20]
The defense presented a different version of the commission of the crime.
Petitioner presented as witnesses Julmunier Akbar Jubail, Celso Gomera
Regencia and Jovito Luna Cabuslay.
Police Superintendent Julmunier A. Jubail, Provincial Director of the
Philippine National Police (PNP), Lanao del Norte Command stated that he
had received a reliable intelligence report of a plot to assassinate the Mayor
and Vice-Mayor of Kauswagan, Lanao del Norte and Governor Abalos and
his family. In response to the intelligence report, he dispatched a team of
PNP personnel to conduct mobile checkpoints along the national highways in
several municipalities and to check on people who would possibly carry out
the plot. Jubail claims that the intelligence report was proven accurate after a
few months because the Vice-Mayor of Kauswagan was killed in
Samborong, Linamon and in December of the same year, Governor Abalos
was assassinated in Iligan City.[21]
The team headed by Senior Inspector Celso G. Regencia included SPO4
Rosello Canoy, SPO2 Jovito Cabuslay, C2C Nilo Montebon and C2C Gerry
Cane. Their area of responsibility consisted of the twenty-two (22)
municipalities of Lanao del Norte. In full military outfit, save for Canoy as he
was assigned to the Intelligence Operatives Command, the men established
a mobile checkpoint on 5 August 1992 at the national highway, Barangay
Libertad, Kauswagan, Lanao del Norte for the purpose of intercepting armed
men who intend to carry out the assassination plot.[22]
At about 8:30 in the morning, a man riding on a red Honda motorcycle[23]
going to the direction of Pagadian City approached the mobile checkpoint.
The motorcycle rider was allegedly wearing a black bonnet, sunglasses,
sweatshirt and gloves that covered the half portion of his fingers.[24]
Regencia testified that he signaled the motorcycle rider to stop at the right
side of the road. He asked for the identification card of the motorcycle rider
who pretended to reach for his wallet, but instead pulled out a gun. He heard
a shot and his thigh went numb. As he rolled to the ground, he heard a volley
of gunshots after which petitioner approached him. Regencia then
approached the motorcyclist and removed his bonnet to be able to identify
him. Regencia later found out that the motorcyle rider was shot by petitioner.
[25]
Regencia ordered his men to load the motorcycle rider to the truck. The
victim later identified as Paquito Umas-as was still alive when he was loaded
on the hummer vehicle to be brought to a hospital, but was pronounced dead
on arrival by Dr. Caga, the attending physician. Regencia then asked that he
be given first-aid treatment for the wounds he sustained. He thereafter turned
over the riders motorcycle, sunglasses and revolver to the police station at
Kauswagan. And after bringing the victims body to a funeral home in
Kolambugan, he proceeded to Baroy General Hospital where his wounds
were treated by a certain Dr. Fabin.[26]
To prove that he was wounded during the incident, Regencia showed to the
court a quo the scars caused by the gunshot wounds. There were three
scars, one of which was the entry of the bullet and the other two were
splinter wounds. He said that the bullet used was the kind that splinters upon
hitting an object. He presented a medical certificate under the signature of
Dr. Demterio U. Opamen, Jr.[27]
For his defense, petitioner confirmed Regencias testimony that the latter had
directed an approaching motorcyclist to stop at the right side of the highway.
He heard Regencia ask the motorcycle rider in Visayan dialect to show his
identification card. Cabuslay then saw Paquito Umas-as shoot Celso
Regencia. This and his belief that he was the next target prompted him to
shoot the motorcycle rider with his M-16.[28]
Police Superintendent Jubail was immediately informed of the incident and
on the basis of Regencias account, he sent out a Spot Report[29] to inform
Recon 9 and 13. The report is couched as follows:
SPOT REPORT x x x CMM SPO2 JOVITO CABUSLAY CMM INSP
REGENCIAS BACK-UP OPEN FIRE (sic) HITTING AND FATTALY (sic)
WOUNDING SAID UNIDENT(IFIED) PERSON WWITH (sic) MULTIPLE
GUNSHOT WOUNDS IN HIS BODY AND DIED ON THE SPOT PD
RESPONDING PNP ELEMETS RECOVERED FROM THE VICTIMS BODY
ALFA CAL. 38 REVOLVER SMITH AND WESSON (HM) SN 236701 WITH
ONE (1) EMPTY SHELL AND 5 UNSPENT AMMO x x x
The incident found its way to the police blotter of the police station of
Kauswagan, Lanao del Norte.[30] It is embodied in a Certification[31] signed
by Inspector Fulgencio dela Pena Raguine, Chief of Police, issued at the
request of Atty. Arthur Abundiente for trial purposes and formulated in this
wise:
Police Blotter Page Nr. 496-Entry Nr. 9187 & 9188=
050810H Aug 1992 SPO3 Nestor S Ortiz, Intel NOR this station, left stn with
elements from Lanao del Norte PNPC under INSPECTOR CELSO G
REGENCIA PNP and proceeded to Libertad, Kauswagan, LN to follow-up
suspects allegedly hired for killing Mpl Mayor Myron B. Rico of Kaus, LN.
050835H Aug 1992 SPO3 Nestor Ortiz PNP returned station informed that
suspects were intercepted at Libertad, Kaus, LN but when confronted by the
PNP team, fired and shot INSPECTOR CELSO G REGENCIA PNP using
cal. 38 revolber (sic) (Homemade) hitting on his right thigh prompting SPO3
Cabustay (sic), fired back to the suspect hitting at the chest causing the
instantaneous death of the suspect. One cal. 38 revolber (sic) (Homemade)
with 5 live ammos and one empty shell at the chamber, one rayban
(sunglass) and one motorcycle (Honda-Camel backtype) color red with out
plate Nr.
Police Blotter Page Nr. 497- Entry Nr.9191=
081240H Aug 1992 Romeo Umas-as, 42 years old x x x.
Police Blotter Page Nr. 501-Entry Nr.9228=
251315H Aug 1992 Impounded Honda Motorcycle x x x.
Police Blotter Page Nr. 508-Entry Nr. 9100=
021130H Oct 1992 COP Bartolini RD got the one deposited rev. cal. 38 SW
S#236701 w/ (4) four live ammo and one empty shell past 30th day of Sep
92 for NBI examination at Cagayan de Oro City.
Petitioner justified the shooting of Paquito Umas-as because he believed that
he would be the next person to be shot at by the victim; and having acted in
defense of his person and that of his superior officer, he asserted before the
court a quo that he has no criminal liability because of the attendance of the
following circumstances: (a) unlawful aggression on the part of the victim; (b)
reasonable necessity of the means employed to prevent or repel the unlawful
aggression of the victim; (c) lack of sufficient provocation on his part, and in
the case of defense of his superior officer, he was not induced by revenge,
resentment, or other evil motives. All of these requisites being present,
petitioner claimed there was legal justification for shooting Paquito Umas-
as.[32]
The Sandiganbayan however grave credence to the version of the
prosecution and rejected the version of petitioner. So, it found him guilty
beyond reasonable doubt of the crime of homicide. It accorded full faith and
credence to the testimony of Zaragosa as it was categorical, straightforward,
spontaneous and consistent. Moreover, it observed that no proof was
adduced to show that Zaragosa was moved by some evil motive to falsely
testify against the accused Cabuslay.[33]
The Sandiganbayan likewise noted grave deficiencies in the evidence of the
defense as follows: (1) The physical existence of the handgun allegedly used
by the victim Paquito was not established as the same was not presented
before the court during the trial;[34] (2) The affidavit executed by Gualberto
Dayot Pasco-presented by the defense to impeach the credibility of
Zaragosa-was taken under intimidating and dubious circumstances, which
fact creates doubt as to the affidavits voluntariness and credibility;[35] (3)
The medical certificate purportedly evidencing that Regencia had been shot
has no probative value as the doctor who executed the same did not testify
during trial. Notably, the medical certificate was executed by a doctor
different from the one who treated Regencias wound;[36] (4) The number of
gunshot wounds inflicted upon the victim betrays petitioners claim of
reasonable necessity of the means used to repel the unlawful aggression
allegedly displayed by the victim.[37]
Hence, petitioner filed the instant petition before the Court, insisting that the
Sandiganbayan erred in not crediting him the justifying circumstance of self-
defense or defense of a stranger or the lawful exercise of a right or office.[38]
Pursuant to the Courts Resolution[39] dated 3 September 1997, the Office
of the Solicitor General (OSG) submitted before the Court a Manifestation
and Motion In Lieu Of Comment[40] to aid the resolution of the instant
petition. In said manifestation, the OSG stated that it is the Office of the
Ombudsman which should represent the People in cases elevated to the
Court from the Sandiganbayan except in cases filed under Executive Orders
Nos. 1, 2, 14, and 14-A issued in 1986. Nevertheless, it opined that the
conviction of petitioner should be reversed because the evidence of the
prosecution when pitted against that of the defense may not stand close
scrutiny. It also asserted that the ponente of the appealed decision was not
yet a member of the Third Division when the witnesses testified and when
the parties presented their evidence; hence, the applicability of the
Courts ruling in People v. Gutual,[41] that no respect can be accorded to the
trial courts findings of fact where the judge who penned the questioned
decision heard only one of the witnesses and only at the sur-rebuttal
stage.[42]
In its Comment,[43] the Office of the Ombudsman through the Office of the
Special Prosecutor seeks the denial of the instant petition on the ground that
the defense failed to impeach the credibility of Zaragosa. It agrees with
respondent court that petitioners story was contrary to human experience
and hence, it correctly debunked self-defense and defense of a stranger as
grounds for petitioners acquittal.[44]
The petition is without merit.
While the rule that the factual findings of the court a quo are generally not
disturbed on appeal because the trial judge had the best opportunity to
observe them and the manner by which they testify is concededly not
applicable to the instant case considering that the ponente of the assailed
Decision was not the one who heard all the witnesses, nevertheless, after a
careful review of the records of the case, the Court finds no reason to disturb
the conclusions reached by respondent court. As held in Hugo v. Court of
Appeals,[45] the efficacy of a decision is not necessarily impaired by the fact
that the ponente only took over from a colleague who had earlier presided
over the trial. For it does not follow that a judge who was not present during
the trial cannot render a valid and just decision.
Moreover, it should be stressed that the Sandiganbayan, which functions in
divisions of three Justices each, is a collegial body which arrives at its
decisions only after deliberation, the exchange of view and ideas, and the
concurrence of the required majority vote.[46]
Simply put, the ponente of the assailed Decision is not the Third Division of
the Sandiganbayan. He alone does not speak for and on behalf of his
Division. Each Division of the Sandiganbayan is a three-man body whose
members each have one vote to cast in every deliberation concerning a case
or any incident therein that is within its jurisdiction.
We have minutely scrutinized the assailed Decision and find it amply
supported by the evidence on record.
Petitioner claims that he acted in self-defense and in defense of Regencia.
One who invokes self-defense admits responsibility for the killing.
Accordingly, the burden of proof shifts to the accused who must then prove
the justifying circumstance. He must show by clear and convincing evidence
that he indeed acted in self-defense, or in defense of a relative or a stranger.
With clear and convincing evidence, all the following elements of self-
defense must be established: (1) unlawful aggression on the part of the
victim; (2) reasonable necessity of the means employed to prevent or repel it;
and (3) lack of sufficient provocation on the part of the person claiming self-
defense.[47]
Self-defense, like alibi, is a defense which can easily be concocted. 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.[48] Thus, petitioner must establish
with clear and convincing evidence that the killing was justified, and that he
incurred no criminal liability therefor.
In order that defense of a stranger may be appreciated, the following
requisites must concur: (1) unlawful aggression by the victim; (2) reasonable
necessity of the means to prevent or repel it; and (3) the person defending
be not induced by revenge, resentment or other evil motive.[49]
Unlawful aggression is the first and primordial element of self-defense. Of the
three requisites, it is the most important. Without it, the justifying
circumstance cannot be invoked. If there is no unlawful aggression, there is
nothing to prevent or repel.[50]
Unlawful aggression refers to an attack or a threat to attack, positively
showing the intent of the aggressor to cause injury. It presupposes not
merely a threatening or an intimidating attitude, but an actual, sudden and
unexpected attack or an imminent danger thereof, which imperils ones life or
limb. Thus, when there is no peril, there is no unlawful aggression.[51]
It is crucial to ask whether the victim Paquito was an unlawful aggressor. We
answer this question in the negative. Aggression to be unlawful, must be
actual and imminent, such that there is a real threat of bodily harm to the
person resorting to self-defense or to others whom that person is seeking to
defend.
Petitioner asserts that he was the victims next target, thus the need to shoot
the victim in self-defense. His claim should be disbelieved. As he himself had
explicitly testified before respondent court, the hummer jeep was behind him
and was parked about three to four meters from the national highway.[52] He
also stated that Paquito could not have seen the hummer jeep because it
was obscured by Muslim houses.[53] It only follows that if from Paquitos
perspective, he cannot see the hummer jeep which is a fairly large vehicle,
then he could not have seen petitioner as well. If Paquito cannot see
petitioner from where he was positioned, then Paquito could not have
possibly aimed to shoot at petitioner. Petitioners contention therefore that
there was an imminent threat of bodily harm coming from Paquito upon his
person is at best illusory. There was no peril, ergo, there was no unlawful
aggression.
It should also be recalled that at the time, Cane was on top of the hummer
jeep manning the machine gun.[54] If Regencia had indeed been shot as the
defense insists, then Cane was better situated to defend Regencia. It is
implausible how an officer like him, in such a strategic position and trained in
the operation of the said weapon could have omitted firing a shot in
Regencias defense. More to the point, it is beyond credulity that the
outbursts of gunfire hardly elicited any reaction from the other police officers
who were only a few meters away from the crime scene and who continued
conducting their search on the bus which was then about to pass the
checkpoint.[55]
Likewise noteworthy is the fact that after the second burst of fire on Paquito,
knowing that Paquito was still alive[56] and in all probability was still holding
a handgun,[57] petitioner chose to assist Regencia instead of making sure
that Paquito had been immobilized and disarmed, basic to a policemans
training.
In addition, the claim of the defense that Paquito shot Regencia on his right
thigh is untenable. Petitioner would have the Court believe that Paquito
dared challenge five policemen, four of them in full battlegear, at a
checkpoint and armed with only a handgun. This is contrary to ordinary
human experience, as well as the human instinct which is to flee for dear life
and seek safety. If indeed Paquito was armed and had criminal designs in
his mind, the natural tendency upon seeing a checkpoint ahead would be to
abort ones plans and leave the premises immediately. Petitioners story not
only was contrary to the ordinary course of nature and the ordinary habits of
life, in all appearances it was also contrived.[58] Respondent court was
correct in rejecting it.
We also confirm that the medical certificate presented by Regencia to prove
that he had been shot by the victim has no probative value. The physician
who signed the same was never presented as witness for the defense. We
also note that the physician who signed said medical certificate, a certain Dr.
Demterio U. Opamen, Jr., is different from the doctor who according to
Regencia had treated his wounds.[59]
It is also worthy of note that the defense never presented in evidence the gun
Paquito allegedly use to shoot Regencia. The gun was also not clearly
identified. Unlawful aggression on the part of the victim must be positively
proved and said gun would have been a vital evidence to establish this
requisite.
Petitioner, however, insists that he would have presented the gun had not
respondent court pressured him to rest his case and submit it for decision.
Such contention hardly inspires belief. Records reveal that petitioner never
made it known to respondent court that the defense would be presenting the
gun allegedly used by Paquito. What the defense did manifest was their
intention to present one Major Bartolino to testify that he had received the
gun allegedly used by Paquito and that he had brought it to the NBI on 30
September 1992 for examination. It should be underscored that the defense
was not even sure that there was an NBI report on said examination. The
counsel for the defense manifested before respondent court, as follows:
ATTY. ABUNDIENTE:
xxx
I intended, Your Honor, Please, to present two more witnesses, Major
Bartolini who received the gun and he will testify on this particular testimony
that he was the Station Commander of the municipality of Kauswagan,
Lanao del Norte at the time of the incident and then he received this gun
from the team of Capt. Regencia on August 5, 19 (sic) and that he took the
gun for NBI Examination sometime in the month of October, 1992, no, on the
30th day of September, 1992.
CHAIRMAN:
This was covered by police blotter?
ATTY. ABUNDIENTE:
Yes, Your Honor.
CHAIRMAN:
You dont need the testimony of Bartolini, but do you have the report of the
NBI?
ATTY. ABUNDIENTE:
That is why, Your Honor, because we have not received any communication
from Bartolini . . .
CHAIRMAN:
How did you come to know that Bartolini sent this firearm to the NBI for
examination? . . .
ATTY. ABUNDIENTE:
Because it is stated in the blotter, Your Honor, . . . dated September 1992 for
NBI examination in Cagayan de Oro City, Entry No. 91000, page 108 . . .
CHAIRMAN:
Does it matter whether you can prove the examination report of the NBI or
not?
ATTY. ABUNDIENTE:
I dont know if there was a report of the NBI examination . . .
CHAIRMAN:
Precisely . . .[60]
The defense was well aware of the relevance of the NBI report to prove their
allegations that the victim was carrying a gun and used the same on
Regencia, especially since the victim was reported to be negative of nitrates
on his hands. No cogent reason could be thought of for the failure to secure
a copy of the report or even know of its existence. It should be noted that the
examination was made as early as September 1992. A partys failure to
produce evidence, which if favorable would naturally have been produced, is
open to the inference that the facts were unfavorable to his case.[61] This
Court can only conclude that said gun never existed, and this explains the
failure of the defense to present it before respondent court. Thus, it is
immaterial to delve on the issue raised by the petitioner on the discrepancy
of the make of the gun as noted by respondent court in its Decision.
Parenthetically, petitioner stresses that the victim had tested negative for
gunpowder nitrates as the latter had been wearing gloves at the time of the
incident. This claim runs counter to his[62] and Regencias[63] testimony that
the only things recovered from Paquito and which were turned over to the
Provincial Police Command were the victims motorcycle, sunglasses and the
alleged gun. The police blotter reporting the incident confirms their
testimonies. Interestingly, said police blotter also makes no mention that
gloves were recovered from the victim.[64]
Anent the credibility of Zaragoza, the sole prosecution eyewitness on whose
testimony the version of the prosecution is anchored, we find that petitioner
failed to impeach his credibility. No evidence was shown that Zaragoza was
actuated by an improper motive. As such, there is no cogent reason why the
Court should deny Zaragozas testimony the full faith and credit it deserves.
On the alleged inconsistencies in Zaragozas testimony, it is relevant to state
that a witness is not expected to remember an occurrence with perfect
recollection of the minute details. Thus, even the most
truthful of witnesses may err and often give confusing statements. What is
important is that Zaragosa unwaveringly, forthrightly and unequivocally
declared that petitioner shot at the victim. Neither did he falter in identifying
the gunman.[65]
All in all, petitioner has failed to prove unlawful aggression on the part of the
victim. Without this essential element, petitioner cannot successfully invoke
self-defense. Even assuming that he tried to defend a stranger, his defense
would not prosper. In defense of a stranger, unlawful aggression on the part
of the victim is also indispensable. In both self-defense and defense of a
stranger, unlawful aggression is a primordial element.
Granting arguendo that there was unlawful aggression, we find that
petitioners contention that he employed reasonable means to repel the
aggression must fail. 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.[66]
Also, the nature and number of wounds suffered by Paquito negate any
claim of self-defense or defense of a stranger. The Court notes that the
victim sustained eight gunshot wounds which were all fatal as they affected
vital organs.[67] Petitioner testified that he pulled the trigger of his armalite
twice.[68] He aimed at the front of his body, at the chest, up to the
stomach.[69] Had petitioner merely defended himself from the victims
unlawful aggression, one shot to immobilize him would have been enough.
There was no reason for petitioner to shoot him seven more times, even
aiming at his vital organs. It bears repeating that the nature and number of
wounds inflicted by the accused are constantly and unremittingly considered
as important indicia which disprove a plea for self-defense or defense of
stranger because they demonstrate a determined effort to kill the victim and
not just defend oneself.[70] In the instant case, Paquitos wounds serve to tell
us that petitioner was induced by revenge, resentment or other evil motive
and that he was set on killing the victim.
Petitioners avowal that his first shot was single but went automatic on the
second shot is likewise unbelievable.[71] Petitioners armalite has a selector
that switches it from single shot to automatic. Since it was petitioner who was
in possession of the firearm and he admitted that he fired the shots, we
reasonably conclude that it was he who switched the firearm to automatic
firing.
All told, petitioner failed to satisfy the requirements of self-defense and
defense of a stranger to justify the shooting of Paquito.
Next, petitioner contends that the killing of Paquito resulted from the lawful
performance of his duty as police officer. However, such justifying
circumstance may be invoked only after the defense successfully proves that
the accused acted in the performance of a duty, and the injury or offense
committed is the necessary consequence of the due performance or lawful
exercise of such duty.[72] These two requisites are wanting in this case. The
victim was not committing any offense at the time. Petitioner has not
sufficiently proven that the victim had indeed fired at Regencia. Killing the
victim under the circumstances of this case cannot in any wise be considered
a valid performance of a lawful duty by a man who had sworn to maintain
peace and order and to protect the lives of the people. As aptly held in
People v. de la Cruz,[73] Performance of duties does not include murder.
Murder is never justified, regardless of the victim.
A final word on the civil liability. An appeal in a criminal proceeding throws
the whole case open for review and it becomes the duty of the Court to
correct any error in the appealed judgment, whether it is made the subject of
an assignment of error or not. Therefore, we delete the award of P50,000.00
as actual damages. To seek recovery of actual damages, it is necessary to
prove the actual amount of loss with reasonable degree of certainty premised
upon competent proof and on the best evidence obtainable. Since the
prosecution did not present receipts to prove the actual losses suffered, such
actual damages cannot be awarded.[74]
On the other hand, consistent with prevailing jurisprudence, we award
P50,000.00 by way of indemnity ex delicto to the heirs of Paquito. When
death occurs as a result of a crime, the heirs of the deceased are entitled to
such amount as indemnity for death without need of any evidence or proof of
damages.[75]
We also affirm the award of moral damages in view of the finding that
Generoso Umas-as lost consciousness and suffered anguish and sorrow
because of the incident.
WHEREFORE, the assailed Decision dated 25 June 1997 of the
Sandiganbayan in Criminal Case No. 19586 finding petitioner GUILTY of
homicide is partially AFFIRMED with the following MODIFICATIONS: (a) the
award of Fifty Thousand Pesos (P50,000.00) as actual damages is deleted;
and (b) petitioner is ordered to pay fifty thousand pesos (P50,000.00) as
indemnity ex delicto. No costs.
SO ORDERED.
CABUSLAY V. PEOPLE G.R. NO.129875 September 30,2005 FACTS:
Paquito Umas-as earned a living as a collector of payments for assorted
articles that he sold on credit. One fateful morning, he was halted by a police
upon reaching a checkpoint. The police asked him to show his ID. When he
took out his ID from his left pocket and when it reached the front man, one of
the policemen, who was identified as the petitioner, opened fire at the
collector whose right hand was then raised. Petitioner, who was four meters
away from the collector, consumed the entire magazine of his M-16 armalite
in firing at him. The collector fell to the ground and was still moving when the
police placed him on board a vehicle and brought him to Kolambugan for
medical attention. Petitioner interposed self-defense and acting in the lawful
performance of his duty as he claimed that the victim fired first at Regencia,
the police who was asking for the ID at the checkpoint.
ISSUE: Whether self-defense and lawful performance of duty under the
circumstances exempts one from criminal liability.
HELD: No. The 8 gunshot wounds suffered by Paquito negate any claim of
self-defense. Had petitioner merely defended himself from the victims
unlawful aggression, one shot to immobilize him would have been enough.
The nature and number of wounds inflicted by the accused are important
indicia which disprove a plea for self-defense or defense of stranger because
they demonstrate a determined effort to kill the victim and not just defend
oneself. That the killing of Paquito resulted from the lawful performance of
duty as a police officer is of no defense where the victim was not committing
any offense at the time. Cabuslay has not sufficiently proven that the victim
had indeed fired at Regencia where the alleged gun used by the victim was
not even presented in evidence. Killing the victim under the circumstances of
this case cannot be considered a valid performance of a lawful duty by a
man who had sworn to maintain peace and order and to protect the lives of
the people.

SECOND DIVISION
[G.R. No. 149275. September 27, 2004]
VICKY C. TY, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
TINGA, J.:
Petitioner Vicky C. Ty (Ty) filed the instant Petition for Review under Rule 45,
seeking to set aside the Decision[1] of the Court of Appeals Eighth Division
in CA-G.R. CR No. 20995, promulgated on 31 July 2001. The Decision
affirmed with modification the judgment of the Regional Trial Court (RTC) of
Manila, Branch 19, dated 21 April 1997, finding her guilty of seven (7) counts
of violation of Batas Pambansa Blg. 22[2] (B.P. 22), otherwise known as the
Bouncing Checks Law.
This case stemmed from the filing of seven (7) Informations for violation of
B.P. 22 against Ty before the RTC of Manila. The Informations were
docketed as Criminal Cases No. 93-130459 to No. 93-130465. The
accusatory portion of the Information in Criminal Case No. 93-130465 reads
as follows:
That on or about May 30, 1993, in the City of Manila, Philippines, the said
accused did then and there willfully, unlawfully and feloniously make or draw
and issue to Manila Doctors Hospital to apply on account or for value to
Editha L. Vecino Check No. Metrobank 487712 dated May 30, 1993 payable
to Manila Doctors Hospital in the amount of P30,000.00, said accused well
knowing that at the time of issue she did not have sufficient funds in or credit
with the drawee bank for payment of such check in full upon its presentment,
which check when presented for payment within ninety (90) days from the
date hereof, was subsequently dishonored by the drawee bank for Account
Closed and despite receipt of notice of such dishonor, said accused failed to
pay said Manila Doctors Hospital the amount of the check or to make
arrangement for full payment of the same within five (5) banking days after
receiving said notice.
Contrary to law.[3]
The other Informations are similarly worded except for the number of the
checks and dates of issue. The data are hereunder itemized as follows:
Criminal Case No. Check No. Postdated Amount
93-130459 487710 30 March 1993 30,000.00
93-130460 487711 30 April 1993 P30,000.00
93-130461 487709 01 March 1993 P30,000.00
93-130462 487707 30 December 1992 P30,000.00
93-130463 487706 30 November 1992 P30,000.00
93-130464 487708 30 January 1993 P30,000.00
93-130465 487712 30 May 1993 P30,000.00[4]
The cases were consolidated and jointly tried. At her arraignment, Ty
pleaded not guilty.[5]
The evidence for the prosecution shows that Tys mother Chua Lao So Un
was confined at the Manila Doctors Hospital (hospital) from 30 October 1990
until 4 June 1992. Being the patients daughter, Ty signed the
Acknowledgment of Responsibility for Payment in the Contract of Admission
dated 30 October 1990.[6] As of 4 June 1992, the Statement of Account[7]
shows the total liability of the mother in the amount of P657,182.40. Tys
sister, Judy Chua, was also confined at the hospital from 13 May 1991 until 2
May 1992, incurring hospital bills in the amount of P418,410.55.[8] The total
hospital bills of the two patients amounted to P1,075,592.95. On 5 June
1992, Ty executed a promissory note wherein she assumed payment of the
obligation in installments.[9] To assure payment of the obligation, she drew
several postdated checks against Metrobank payable to the hospital. The
seven (7) checks, each covering the amount of P30,000.00, were all
deposited on their due dates. But they were all dishonored by the drawee
bank and returned unpaid to the hospital due to insufficiency of funds, with
the Account Closed advice. Soon thereafter, the complainant hospital sent
demand letters to Ty by registered mail. As the demand letters were not
heeded, complainant filed the seven (7) Informations subject of the instant
case.[10]
For her defense, Ty claimed that she issued the checks because of an
uncontrollable fear of a greater injury. She averred that she was forced to
issue the checks to obtain release for her mother whom the hospital
inhumanely and harshly treated and would not discharge unless the hospital
bills are paid. She alleged that her mother was deprived of room facilities,
such as the air-condition unit, refrigerator and television set, and subject to
inconveniences such as the cutting off of the telephone line, late delivery of
her mothers food and refusal to change the latters gown and bedsheets. She
also bewailed the hospitals suspending medical treatment of her mother. The
debasing treatment, she pointed out, so affected her mothers mental,
psychological and physical health that the latter contemplated suicide if she
would not be discharged from the hospital. Fearing the worst for her mother,
and to comply with the demands of the hospital, Ty was compelled to sign a
promissory note, open an account with Metrobank and issue the checks to
effect her mothers immediate discharge.[11]
Giving full faith and credence to the evidence offered by the prosecution, the
trial court found that Ty issued the checks subject of the case in payment of
the hospital bills of her mother and rejected the theory of the defense.[12]
Thus, on 21 April 1997, the trial court rendered a Decision finding Ty guilty of
seven (7) counts of violation of B.P. 22 and sentencing her to a prison term.
The dispositive part of the Decision reads:
CONSEQUENTLY, the accused Vicky C. Ty, for her acts of issuing seven (7)
checks in payment of a valid obligation, which turned unfounded on their
respective dates of maturity, is found guilty of seven (7) counts of violations
of Batas Pambansa Blg. 22, and is hereby sentenced to suffer the penalty of
imprisonment of SIX MONTHS per count or a total of forty-two (42) months.
SO ORDERED.[13]
Ty interposed an appeal from the Decision of the trial court. Before the Court
of Appeals, Ty reiterated her defense that she issued the checks under the
impulse of an uncontrollable fear of a greater injury or in avoidance of a
greater evil or injury. She also argued that the trial court erred in finding her
guilty when evidence showed there was absence of valuable consideration
for the issuance of the checks and the payee had knowledge of the
insufficiency of funds in the account. She protested that the trial court should
not have applied the law mechanically, without due regard to the principles of
justice and equity.[14]
In its Decision dated 31 July 2001, the appellate court affirmed the judgment
of the trial court with modification. It set aside the penalty of imprisonment
and instead sentenced Ty to pay a fine of sixty thousand pesos (P60,000.00)
equivalent to double the amount of the check, in each case.[15]
In its assailed Decision, the Court of Appeals rejected Tys defenses of
involuntariness in the issuance of the checks and the hospitals knowledge of
her checking accounts lack of funds. It held that B.P. 22 makes the mere act
of issuing a worthless check punishable as a special offense, it being a
malum prohibitum. What the law punishes is the issuance of a bouncing
check and not the purpose for which it was issued nor the terms and
conditions relating to its issuance.[16]
Neither was the Court of Appeals convinced that there was no valuable
consideration for the issuance of the checks as they were issued in payment
of the hospital bills of Tys mother.[17]
In sentencing Ty to pay a fine instead of a prison term, the appellate court
applied the case of Vaca v. Court of Appeals[18] wherein this Court declared
that in determining the penalty imposed for violation of B.P. 22, the
philosophy underlying the Indeterminate Sentence Law should be observed,
i.e., redeeming valuable human material and preventing unnecessary
deprivation of personal liberty and economic usefulness, with due regard to
the protection of the social order.[19]
Petitioner now comes to this Court basically alleging the same issues raised
before the Court of Appeals. More specifically, she ascribed errors to the
appellate court based on the following grounds:
A. THERE IS CLEAR AND CONVINCING EVIDENCE THAT PETITIONER
WAS FORCED TO OR COMPELLED IN THE OPENING OF THE
ACCOUNT AND THE ISSUANCE OF THE SUBJECT CHECKS.
B. THE CHECKS WERE ISSUED UNDER THE IMPULSE OF AN
UNCONTROLLABLE FEAR OF A GREATER INJURY OR IN AVOIDANCE
OF A GREATER EVIL OR INJURY.
C. THE EVIDENCE ON RECORD PATENTLY SHOW[S] ABSENCE OF
VALUABLE CONSIDERATION IN THE ISSUANCE OFTHE SUBJECT
CHECKS.
D. IT IS AN UNDISPUTED FACT THAT THE PAYEE OF THE CHECKS
WAS FULLY AWARE OF THE LACK OF FUNDS IN THE ACCOUNT.
E. THE HONORABLE COURT OF APPEALS, AS WELL AS THE
HONORABLE TRIAL COURT [,] SHOULD NOT HAVE APPLIED CRIMINAL
LAW MECHANICALLY, WITHOUT DUE REGARD TO THE PRINCIPLES
OF JUSTICE AND EQUITY.
In its Memorandum,[20] the Office of the Solicitor General (OSG), citing
jurisprudence, contends that a check issued as an evidence of debt, though
not intended to be presented for payment, has the same effect as an
ordinary check; hence, it falls within the ambit of B.P. 22. And when a check
is presented for payment, the drawee bank will generally accept the same,
regardless of whether it was issued in payment of an obligation or merely to
guarantee said obligation. What the law punishes is the issuance of a
bouncing check, not the purpose for which it was issued nor the terms and
conditions relating to its issuance. The mere act of issuing a worthless check
is malum prohibitum.[21]
We find the petition to be without merit and accordingly sustain Tys
conviction.
Well-settled is the rule that the factual findings and conclusions of the trial
court and the Court of Appeals are entitled to great weight and respect, and
will not be disturbed on appeal in the absence of any clear showing that the
trial court overlooked certain facts or circumstances which would
substantially affect the disposition of the case.[22] Jurisdiction of this Court
over cases elevated from the Court of Appeals is limited to reviewing or
revising errors of law ascribed to the Court of Appeals whose factual findings
are conclusive, and carry even more weight when said court affirms the
findings of the trial court, absent any showing that the findings are totally
devoid of support in the record or that they are so glaringly erroneous as to
constitute serious abuse of discretion.[23]
In the instant case, the Court discerns no compelling reason to reverse the
factual findings arrived at by the trial court and affirmed by the Court of
Appeals.
Ty does not deny having issued the seven (7) checks subject of this case.
She, however, claims that the issuance of the checks was under the impulse
of an uncontrollable fear of a greater injury or in avoidance of a greater evil
or injury. She would also have the Court believe that there was no valuable
consideration in the issuance of the checks.
However, except for the defenses claim of uncontrollable fear of a greater
injury or avoidance of a greater evil or injury, all the grounds raised involve
factual issues which are best determined by the trial court. And, as
previously intimated, the trial court had in fact discarded the theory of the
defense and rendered judgment accordingly.
Moreover, these arguments are a mere rehash of arguments unsuccessfully
raised before the trial court and the Court of Appeals. They likewise put to
issue factual questions already passed upon twice below, rather than
questions of law appropriate for review under a Rule 45 petition.
The only question of law raisedwhether the defense of uncontrollable fear is
tenable to warrant her exemption from criminal liabilityhas to be resolved in
the negative. For this exempting circumstance to be invoked successfully,
the following requisites must concur: (1) existence of an uncontrollable fear;
(2) the fear must be real and imminent; and (3) the fear of an injury is greater
than or at least equal to that committed.[24]
It must appear that the threat that caused the uncontrollable fear is of such
gravity and imminence that the ordinary man would have succumbed to
it.[25] It should be based on a real, imminent or reasonable fear for ones life
or limb.[26] A mere threat of a future injury is not enough. It should not be
speculative, fanciful, or remote.[27] A person invoking uncontrollable fear
must show therefore that the compulsion was such that it reduced him to a
mere instrument acting not only without will but against his will as well.[28] It
must be of such character as to leave no opportunity to the accused for
escape.[29]
In this case, far from it, the fear, if any, harbored by Ty was not real and
imminent. Ty claims that she was compelled to issue the checksa condition
the hospital allegedly demanded of her before her mother could be
dischargedfor fear that her mothers health might deteriorate further due to
the inhumane treatment of the hospital or worse, her mother might commit
suicide. This is speculative fear; it is not the uncontrollable fear contemplated
by law.
To begin with, there was no showing that the mothers illness was so life-
threatening such that her continued stay in the hospital suffering all its
alleged unethical treatment would induce a well-grounded apprehension of
her death. Secondly, it is not the laws intent to say that any fear exempts one
from criminal liability much less petitioners flimsy fear that her mother might
commit suicide. In other words, the fear she invokes was not impending or
insuperable as to deprive her of all volition and to make her a mere
instrument without will, moved exclusively by the hospitals threats or
demands.
Ty has also failed to convince the Court that she was left with no choice but
to commit a crime. She did not take advantage of the many opportunities
available to her to avoid committing one. By her very own words, she
admitted that the collateral or security the hospital required prior to the
discharge of her mother may be in the form of postdated checks or
jewelry.[30] And if indeed she was coerced to open an account with the bank
and issue the checks, she had all the opportunity to leave the scene to avoid
involvement.
Moreover, petitioner had sufficient knowledge that the issuance of checks
without funds may result in a violation of B.P. 22. She even testified that her
counsel advised her not to open a current account nor issue postdated
checks because the moment I will not have funds it will be a big problem.[31]
Besides, apart from petitioners bare assertion, the record is bereft of any
evidence to corroborate and bolster her claim that she was compelled or
coerced to cooperate with and give in to the hospitals demands.
Ty likewise suggests in the prefatory statement of her Petition and
Memorandum that the justifying circumstance of state of necessity under par.
4, Art. 11 of the Revised Penal Code may find application in this case.
We do not agree. The law prescribes the presence of three requisites to
exempt the actor from liability under this paragraph: (1) that the evil sought to
be avoided actually exists; (2) that the injury feared be greater than the one
done to avoid it; (3) that there be no other practical and less harmful means
of preventing it.[32]
In the instant case, the evil sought to be avoided is merely expected or
anticipated. If the evil sought to be avoided is merely expected or anticipated
or may happen in the future, this defense is not applicable.[33] Ty could have
taken advantage of an available option to avoid committing a crime. By her
own admission, she had the choice to give jewelry or other forms of security
instead of postdated checks to secure her obligation.
Moreover, for the defense of state of necessity to be availing, the greater
injury feared should not have been brought about by the negligence or
imprudence, more so, the willful inaction of the actor.[34] In this case, the
issuance of the bounced checks was brought about by Tys own failure to pay
her mothers hospital bills.
The Court also thinks it rather odd that Ty has chosen the exempting
circumstance of uncontrollable fear and the justifying circumstance of state of
necessity to absolve her of liability. It would not have been half as bizarre
had Ty been able to prove that the issuance of the bounced checks was
done without her full volition. Under the circumstances, however, it is quite
clear that neither uncontrollable fear nor avoidance of a greater evil or injury
prompted the issuance of the bounced checks.
Parenthetically, the findings of fact in the Decision of the trial court in the Civil
Case[35] for damages filed by Tys mother against the hospital is wholly
irrelevant for purposes of disposing the case at bench. While the findings
therein may establish a claim for damages which, we may add, need only be
supported by a preponderance of evidence, it does not necessarily engender
reasonable doubt as to free Ty from liability.
As to the issue of consideration, it is presumed, upon issuance of the checks,
in the absence of evidence to the contrary, that the same was issued for
valuable consideration.[36] Section 24[37] of the Negotiable Instruments Law
creates a presumption that every party to an instrument acquired the same
for a consideration[38] or for value.[39] In alleging otherwise, Ty has the
onus to prove that the checks were issued without consideration. She must
present convincing evidence to overthrow the presumption.
A scrutiny of the records reveals that petitioner failed to discharge her burden
of proof. Valuable consideration may in general terms, be said to consist
either in some right, interest, profit, or benefit accruing to the party who
makes the contract, or some forbearance, detriment, loss or some
responsibility, to act, or labor, or service given, suffered or undertaken by the
other aide. Simply defined, valuable consideration means an obligation to
give, to do, or not to do in favor of the party who makes the contract, such as
the maker or indorser.[40]
In this case, Tys mother and sister availed of the services and the facilities of
the hospital. For the care given to her kin, Ty had a legitimate obligation to
pay the hospital by virtue of her relationship with them and by force of her
signature on her mothers Contract of Admission acknowledging responsibility
for payment, and on the promissory note she executed in favor of the
hospital.
Anent Tys claim that the obligation to pay the hospital bills was not her
personal obligation because she was not the patient, and therefore there was
no consideration for the checks, the case of Bridges v. Vann, et al.[41] tells
us that it is no defense to an action on a promissory note for the maker to
say that there was no consideration which was beneficial to him personally; it
is sufficient if the consideration was a benefit conferred upon a third person,
or a detriment suffered by the promisee, at the instance of the promissor. It is
enough if the obligee foregoes some right or privilege or suffers some
detriment and the release and extinguishment of the original obligation of
George Vann, Sr., for that of appellants meets the requirement. Appellee
accepted one debtor in place of another and gave up a valid, subsisting
obligation for the note executed by the appellants. This, of itself, is sufficient
consideration for the new notes.
At any rate, the law punishes the mere act of issuing a bouncing check, not
the purpose for which it was issued nor the terms and conditions relating to
its issuance.[42] B.P. 22 does not make any distinction as to whether the
checks within its contemplation are issued in payment of an obligation or to
merely guarantee the obligation.[43] The thrust of the law is to prohibit the
making of worthless checks and putting them into circulation.[44] As this
Court held in Lim v. People of the Philippines,[45] what is primordial is that
such issued checks were worthless and the fact of its worthlessness is
known to the appellant at the time of their issuance, a required element
under B.P. Blg. 22.

The law itself creates a prima facie presumption of knowledge of
insufficiency of funds. Section 2 of B.P. 22 provides:
Section 2. Evidence of knowledge of insufficient funds. - The making,
drawing and issuance of a check payment of which is refused by the drawee
bank because of insufficient funds in or credit with such bank, when
presented within ninety (90) days from the date of the check, shall be prima
facie evidence of knowledge of such insufficiency of funds or credit unless
such maker or drawer pays the holder thereof the amount due thereon, or
makes arrangements for payment in full by the drawee of such check within
five (5) banking days after receiving notice that such check has not been
paid by the drawee.
Such knowledge is legally presumed from the dishonor of the checks for
insufficiency of funds.[46] If not rebutted, it suffices to sustain a
conviction.[47]
Petitioner likewise opines that the payee was aware of the fact that she did
not have sufficient funds with the drawee bank and such knowledge
necessarily exonerates her liability.
The knowledge of the payee of the insufficiency or lack of funds of the
drawer with the drawee bank is immaterial as deceit is not an essential
element of an offense penalized by B.P. 22. The gravamen of the offense is
the issuance of a bad check, hence, malice and intent in the issuance thereof
is inconsequential.[48]
In addition, Ty invokes our ruling in Magno v. Court of Appeals[49] wherein
this Court inquired into the true nature of transaction between the drawer and
the payee and finally acquitted the accused, to persuade the Court that the
circumstances surrounding her case deserve special attention and do not
warrant a strict and mechanical application of the law.
Petitioners reliance on the case is misplaced. The material operative facts
therein obtaining are different from those established in the instant petition.
In the 1992 case, the bounced checks were issued to cover a warranty
deposit in a lease contract, where the lessor-supplier was also the financier
of the deposit. It was a modus operandi whereby the supplier was able to sell
or lease the goods while privately financing those in desperate need so they
may be accommodated. The maker of the check thus became an unwilling
victim of a lease agreement under the guise of a lease-purchase agreement.
The maker did not benefit at all from the deposit, since the checks were used
as collateral for an accommodation and not to cover the receipt of an actual
account or credit for value.
In the case at bar, the checks were issued to cover the receipt of an actual
account or for value. Substantial evidence, as found by the trial court and
Court of Appeals, has established that the checks were issued in payment of
the hospital bills of Tys mother.
Finally, we agree with the Court of Appeals in deleting the penalty of
imprisonment, absent any proof that petitioner was not a first-time offender
nor that she acted in bad faith. Administrative Circular 12-2000,[50] adopting
the rulings in Vaca v. Court of Appeals[51] and Lim v. People,[52] authorizes
the non-imposition of the penalty of imprisonment in B.P. 22 cases subject to
certain conditions. However, the Court resolves to modify the penalty in view
of Administrative Circular 13-2001[53] which clarified Administrative 12-2000.
It is stated therein:
The clear tenor and intention of Administrative Circular No. 12-2000 is not to
remove imprisonment as an alternative penalty, but to lay down a rule of
preference in the application of the penalties provided for in B.P. Blg. 22.
Thus, Administrative Circular 12-2000 establishes a rule of preference in the
application of the penal provisions of B.P. Blg. 22 such that where the
circumstances of both the offense and the offender clearly indicate good faith
or a clear mistake of fact without taint of negligence, the imposition of a fine
alone should be considered as the more appropriate penalty. Needless to
say, the determination of whether circumstances warrant the imposition of a
fine alone rests solely upon the Judge. Should the judge decide that
imprisonment is the more appropriate penalty, Administrative Circular No.
12-2000 ought not be deemed a hindrance.
It is therefore understood that: (1) Administrative Circular 12-2000 does not
remove imprisonment as an alternative penalty for violations of B.P. 22; (2)
the judges concerned may, in the exercise of sound discretion, and taking
into consideration the peculiar circumstances of each case, determine
whether the imposition of a fine alone would best serve the interests of
justice, or whether forbearing to impose imprisonment would depreciate the
seriousness of the offense, work violence on the social order, or otherwise
be contrary to the imperatives of justice; (3) should only a fine be imposed
and the accused unable to pay the fine, there is no legal obstacle to the
application of the Revised Penal Code provisions on subsidiary
imprisonment.[54]
WHEREFORE, the instant Petition is DENIED and the assailed Decision of
the Court of Appeals, dated 31 July 2001, finding petitioner Vicky C. Ty
GUILTY of violating Batas Pambansa Bilang 22 is AFFIRMED with
MODIFICATIONS. Petitioner Vicky C. Ty is ORDERED to pay a FINE
equivalent to double the amount of each dishonored check subject of the
seven cases at bar with subsidiary imprisonment in case of insolvency in
accordance with Article 39 of the Revised Penal Code. She is also ordered to
pay private complainant, Manila Doctors Hospital, the amount of Two
Hundred Ten Thousand Pesos (P210,000.00) representing the total amount
of the dishonored checks. Costs against the petitioner.
SO ORDERED.
Elements of Fulfillment of Duty as a Justifying Circumstance
For fulfillment of duty to be appreciated as a justifying circumstance, the
following must be established:
(1) that the offender acted in the lawful exercise of a right or a duty; and
(b) that the injury or offense committed be the necessary consequence of the
due performance of such right or office.
(Ty vs. People, G.R. No. 149275, 27 September 2004, 439 SCRA 220)
VICKY C. TY, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
Facts:
Ty's mother and sister was confined at the Manila Doctors Hospital. The total
hospital bills amounted to P1 million. After signing a contract of responsibility
with the hospital, Ty issued 7 checks to cover the said expenses, all of which
were dishonored for being drawn against a closed a account. Manila Doctors
Hospital sued Ty for violation of BP 22. In her defense, Ty alleged that she
issued the checks because of an "uncontrollable fear of a greater injury". She
averred that her mother threatened to commit suicide due to the inhumane
treatment she allegedly suffered while confined in the hospital. Ty was found
guilty by the trial court of 7 counts of violation of BP 22. Ty appealed wherein
she reiterated her defense that she issued the checks under the impulse of
an uncontrollable fear of a greater injury or in avoidance of a greater evil or
injury.
Issue:
Is the defense of uncontrollable fear or avoidance of a greater evil or injury
tenable to warrant Ty's exemption from criminal liability?
Held:
Uncontrollable fear
For this exempting circumstance to be invoked successfully, the following
requisites must concur: (1) existence of an uncontrollable fear; (2) the fear
must be real and imminent; and (3) the fear of an injury is greater than or at
least equal to that committed.

It must appear that the threat that caused the uncontrollable fear is of such
gravity and imminence that the ordinary man would have succumbed to it. It
should be based on a real, imminent or reasonable fear for ones life or limb.
A mere threat of a future injury is not enough. It should not be speculative,
fanciful, or remote. A person invoking uncontrollable fear must show
therefore that the compulsion was such that it reduced him to a mere
instrument acting not only without will but against his will as well. It must be
of such character as to leave no opportunity to the accused for escape.

In this case, far from it, the fear, if any, harbored by Ty was not real and
imminent. Ty claims that she was compelled to issue the checks a condition
the hospital allegedly demanded of her before her mother could be
discharged for fear that her mothers health might deteriorate further due to
the inhumane treatment of the hospital or worse, her mother might commit
suicide. This is speculative fear; it is not the uncontrollable fear contemplated
by law.

To begin with, there was no showing that the mothers illness was so life-
threatening such that her continued stay in the hospital suffering all its
alleged unethical treatment would induce a well-grounded apprehension of
her death. Secondly, it is not the laws intent to say that any fear exempts one
from criminal liability much less petitioners flimsy fear that her mother might
commit suicide. In other words, the fear she invokes was not impending or
insuperable as to deprive her of all volition and to make her a mere
instrument without will, moved exclusively by the hospitals threats or
demands.
FIRST DIVISION
Ty has also failed to convince the Court that she was left with no choice but
to commit a crime. She did not take advantage of the many opportunities RUFINO S. MAMANGUN, Petitioner,
available to her to avoid committing one. By her very own words, she - versus -
admitted that the collateral or security the hospital required prior to the PEOPLE OF THE PHILIPPINES, Respondent.
discharge of her mother may be in the form of postdated checks or jewelry.
And if indeed she was coerced to open an account with the bank and issue G.R. No. 149152
the checks, she had all the opportunity to leave the scene to avoid Present:
involvement.
PUNO, C.J., Chairperson,
Avoidance of a greater evil or injury SANDOVAL-GUTIERREZ,
CORONA,
The law prescribes the presence of three requisites to exempt the actor from AZCUNA, and
liability under this paragraph: (1) that the evil sought to be avoided actually GARCIA, JJ.
exists; (2) that the injury feared be greater than the one done to avoid it; (3)
that there be no other practical and less harmful means of preventing it. Promulgated:
February 2, 2007
In the instant case, the evil sought to be avoided is merely expected or x---------------------------------------------------------------------------------x
anticipated. If the evil sought to be avoided is merely expected or anticipated
or may happen in the future, this defense is not applicable. Ty could have DECISION
taken advantage of an available option to avoid committing a crime. By her
own admission, she had the choice to give jewelry or other forms of security GARCIA, J.:
instead of postdated checks to secure her obligation.
In this petition for review under Rule 45 of the Rules of Court, petitioner
Moreover, for the defense of state of necessity to be availing, the greater Rufino Mamangun y Silverio seeks the reversal of the Decision[1] dated
injury feared should not have been brought about by the negligence or January 19, 2001 (promulgated on February 13, 2001) of the Sandiganbayan
imprudence, more so, the willful inaction of the actor. In this case, the in its Criminal Case No. 21131, convicting him of the crime of Homicide.
issuance of the bounced checks was brought about by Tys own failure to pay
her mothers hospital bills. (Ty vs. People, G.R. No. 149275. September 27, The factual backdrop:
2004)
On September 12, 1994, herein petitioner, then a police officer, was charged
before the Sandiganbayan with the crime of Murder, allegedly committed, per
the indicting Information,[2] docketed as Criminal Case No. 21131, as
follows:

That on or about the 31st day of July 1992, in the Municipality of Meycauyan,
(sic) Province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused Rufino S. Mamangun, a public officer,
being then a Police Officer (PO2), duly appointed as such and acting in
relation to his office, armed with a gun, with intent to kill, did then and there
willfully, unlawfully and feloniously, with treachery, evident premeditation and
abuse of superior strength, attack, assault and shoot one Gener M.
Contreras with the said gun, hitting the latter on his body, thereby inflicting
(sic) him serious physical injuries which directly cause (sic) his death.
CONTRARY TO LAW.
On arraignment, petitioner, as accused below, duly assisted by a counsel de
oficio, entered a plea of Not Guilty.
In the ensuing trial, the prosecution presented in evidence the testimonies of
Crisanto Ayson (Ayson), an alleged eyewitness, and Dr. Benito Caballero,
then the designated Medico-Legal Officer of Bulacan who performed an
autopsy on the cadaver of the victim.
For its part, the defense adduced in evidence the testimonies of the accused
himself, Rufino Mamangun, his co-policemen at the Philippine National
Police (PNP), namely, PO2 Carlito Cruz, PO4 Hobert O. Diaz and Police
Investigator SPO-1 Hernando B. Banez, all assigned at the Meycauayan
Police Station; and those of Lorenzo S. Abacan and Rogelio Ingco, son and
son-in-law, respectively, of Antonio Abacan, owner of the house on which
rooftop the shooting of the victim took place.
It is not disputed that on July 31, 1992, at about 8:00 in the evening, in Brgy.
Calvario, Meycauayan, Bulacan a certain Liberty Contreras was heard
shouting, MagnanakawMagnanakaw. Several residents responded and
thereupon chased the suspect who entered the yard of Antonio Abacan and
proceeded to the rooftop of Abacans house.
At about 9:00 oclock that same evening, the desk officer of the Meycauayan
PNP Police Station, upon receiving a telephone call that a robbery-holdup
was in progress in Brgy. Calvario, immediately contacted and dispatched to
the scene the crew of Patrol Car No. 601 composed of Team Leader SPO1
Andres Legaspi, with PO2 Eugenio Aminas and herein petitioner PO2 Rufino
S. Mamangun; and Patrol Car No. 602 composed of Team Leader PO3
Sandiego San Gabriel, with PO2 Carlito Cruz and PO2 Hobert Diaz. With the
permission of Abacan, petitioner Mamangun, PO2 Diaz and PO2 Cruz went
to the rooftop of the house whereat the suspect was allegedly taking refuge.
The three policemen, i.e., petitioner, Diaz and Cruz, each armed with a
drawn handgun, searched the rooftop. There, they saw a man whom they
thought was the robbery suspect. At 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 robbery suspect.
Contreras died from the gunshot wound. The autopsy conducted by Dr.
Benito B. Caballero yielded the following findings:
The cause of death was Shock due to massive external and internal
hemorrhage due to multiple gunshot wounds in the left arm side of the
thorax, penetrating the left lung and vertebral column. There were several
wounds caused by one (1) bullet.
As shown on the sketch of human body attached to the Certificate of Death,
and as testified on by Dr. Caballero, the bullet entered through the lower third
of the left arm, left side of the thorax and it penetrated the left lung and
vertebral column and that is where the slug was found. From a laymans
appreciation of the sketch, the bullet entered the outer, upper left arm of the
victim, exited through the inner side of the said upper left arm, a little lower
than the left armpit and the slug lodging on the victims back where it was
recovered at the vertebral column.[3]
From the foregoing admitted or undisputed facts, the prosecution and the
defense presented conflicting versions as to how the fatal shooting of
Contreras by petitioner Mamangun actually happened.
According to Ayson, the lone eyewitness for the prosecution, he
accompanied the three policemen (Mamangun, Diaz and Cruz) to the rooftop
of Abacans house. He was following petitioner Mamangun who was ahead of
the group. They passed through the second-floor door of the house to the
rooftop. The roof was lighted by an incandescent bulb from an adjacent
house. He was beside Mamangun when they saw, some four to five arms-
length away, a man whom he (witness) recognized as Gener Contreras.
Mamangun pointed his .45 cal. pistol at the man, who instantly exclaimed,
Hindi ako, hindi ako!, to which Mamangun replied, Anong hindi ako? Before
he (Ayson) could say anything, Mamangun fired his gun, hitting the man who
turned out to be Contreras. He (witness) approached the victim who was
then lying on his left side unconscious. He brought down the victim and they
rushed him to the hospital where he died at about 10:00 oclock that same
evening.
The defense has its own account of what purportedly actually transpired.
PO2 Mamangun, along with PO2 Cruz and PO2Diaz, denied the presence of
Ayson at the rooftop during the shooting incident. Corroborating one another,
the three testified that they were the only ones at the scene of the shooting,
and that it was dark. They claimed that each of them, with Mamangun on the
lead, went on separate directions around a water tank. As they met each
other at the other side of the tank, PO2 Cruz pointed to a person crouching
at the edge of the roof of the garage. Thinking that the person was the
suspect they were looking for, Mamangun chased said person. They
announced that they were police officers but the person continued to run in a
crouching position until Mamangun caught up with him and shouted, Pulis.
Tigil, whereupon the person suddenly stopped, turned around, faced
Mamangun, and raised a stainless steel pipe towards the latters head but
Mamangun was able to evade the attack. This prompted Mamangun to shoot
the person on the left arm. All three claimed that it was only at this point that
PO2 Cruz and Diaz approached Contreras who told them, Hindi ako. Hindi
ako. Mamangun went near Contreras and asked, Why did you go to the
rooftop? You know there are policemen here. Contreras was thereafter
brought to the hospital where he died. After the shooting incident, Mamangun
reported the same to the desk officer, POI Filomeno de Luna, who advised
him to remain in the police station. De Luna directed Police Investigator
Hernando Banez to investigate the incident. That same evening, Investigator
Banez went to the place where the shooting happened. Banez allegedly
found a steel pipe about three (3) feet long on the depressed portion of the
roof.
On January 19, 2001, after due proceedings, the Sandiganbayan came out
with its decision[4] 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.[5] None of these exceptions obtains in this case.
Having admitted[6] 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, 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.
MAMANGUN V PEOPLE
GR No. 149152 | February 2, 2007 | J. Garcia
Petitioner: Rufino S. Mamangun
Respondent: People of the Philippines
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 Mamangun’s 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
petitioner’s fulfillment of his duty
Held: No. The Court denies the instant petition and affirms Sandiganbayan’s
decision after finding the petitioner’s testimony to be nothing but a concocted
story designed to evade criminal liability. Per Sandiganbayan’s observations,
the defense was self-serving for the accused and biased with respect to his
co-policemen-witnesses because:
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
Mamangun’s 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
The location of the entry of bullet belies their claim because it appears that
the victim instinctively shielded himself instead
Additionally, petitioner’s 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.
Acts in the fulfillment of duty and self-defense does not completely justify the
petitioner’s firing the fatal gunshot. The element of unlawful aggression on
the part of the victim was absent, which leads to the failure of the petitioner’s
plea. Also, there can only be incomplete 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.
FACTS:
At about 8 PM, in Brgy. Calvario, Meycauayan, Bulacan, a certain Liberty
Contreras was heard shouting “Magnanakaw… Magnanakaw.” Several
residents responded and chased the suspect who entered Abacan’s house
and proceeded to the rooftop.
Policemen (Andres Legaspi, Eugenio Aminas, Rufino Mamangun, Sandiego
San Gabriel, Carlito Cruz & Hobert Diaz) were dispatched who went to the
rooftop of house where the suspect was allegedly hiding.
3 policemen including Mamangun each armed with a drawn handgun,
searched the rooftop. They saw a man whom they thought was the robbery
suspect and that instance, Mamangun, who was walking ahead of the group,
fired his handgun once, hitting the man. The man turned out to be Gener
Contreras who was not the robbery suspect. Contreras died from the
gunshot wound.
According to Ayson, lone eyewitness for prosecution, Mamangun pointed his
.45 cal. Pistol at the man who instantly exclaimed, “Hindi ako, hindi ako!” to
which Mamangun replied, “Anong hindi ako?” Before Ayson could say
anything, Mamangun already shot Contreras.
Mamangun however said that the person raised a stainless steel pipe
towards his head but he was able to evade the attack. This prompted him to
shoot the person on the left arm. It was only at that point that the man told
them, “hindi ako, hindi ako.”
Sandiganbayan convicted petitioner with homicide attended by an
incomplete justifying circumstance of the petitioner having acted in the
performance of his duty as a policeman, and also the generic mitigating
circumstance of voluntary surrender.
Petitioner appealed, insisting that the shooting was justified because he was
repelling Contreras’ unlawful attack on his person, as Contreras was about to
strike him with a steel pipe.
HELD: The Court is not persuaded and denied the petition. The decision of
Sandiganbayan is affirmed.
RATIO: The justifying circumstance of fulfilment of duty may be invoked only
after the defense successfully proves that:
The accused acted in the performance of a duty; and
The injury inflicted or offense committed is the necessary consequence of
the due performance or lawful exercise of such duty.
The first requisite is present. 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.
There was no reason to shoot Contreras because he was already unarmed
and shouted that it wasn’t him before petitioner fatally shot him.
Petitioner’s pretense that Contreras struck him with a steel pipe is intriguing
for it was only when a lead pipe was recovered from the scene that petitioner
remembered Contreras trying to hit him. Such vital information could not
have escaped petitioner’s mind.
In the absence of the equally necessary justifying circumstance that the
injury be the NECESSARY CONSEQUENCE of the due performance of such
duty, there can only be INCOMPLETE JUSTIFICATION, a privileged
mitigating circumstance.
There was no rational necessity for the killing of Contreras. Petitioner could
have first fired a warning shot instead of immediately directing the shot
against Contreras.
epublic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-45344 November 29, 1938
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VICENTE P. ANCHETA, ET AL., defendants.
VICENTE P. ANCHETA, ISIDORO DEL ROSARIO, and BENITO GASPI,
appellants.
Alejo Mabanag for appellants.
Solicitor-General Tuason for appellee.
ABAD SANTOS, J.:
This case grew out of an affray which took place in a small and isolated
community, the municipal district of Balabac, Province of Palawan.
Appellants, with twelve others, all members of the constabular, were charge
in the Court of First Instance of Palawan with having murdered Guillermo
Salazar who was at the time the justice of the peace of the said municipal
district. Upon motion of the prosecution, one of the accused, Isaac de
Guzman, was excluded from the information and used as a state witness.
After due trial, the court found the appellants Isidoro del Rosario and Benito
Gaspi guilty of the crime charged, as principals, and the appellant Vicente P.
Ancheta, as accomplice, and sentenced each of the first two to suffer the
penalty of reclusion perpetua, and the last the penalty of not less than six
years and one day of prision mayor and not more than twelve years and one
day of reclusion temporal. The three appellants were further sentenced to
indemnify the heirs of the deceased Guillermo Salazar in the sum of P1,000,
pro rata, to suffer the other accessory penalties prescribed by law, and to
pay the costs. The eleven remaining accused were acquitted.
While the information alleged that the fifteen accused conspired to kill
Salazar, the trial court held that there was no proof of such conspiracy.
According to the findings of the court, Salazar was shot and killed by Gaspi
while the former was being assaulted by Del Rosario; and although there
was no expressed finding of conspiracy between these two appellants, they
were both found guilty of the alleged crime, as principals. The appellant
Ancheta was found guilty, as accomplice, for having failed to restrain his co-
appellants from the commission of the alleged criminal act.
This appeal seeks to reverse the judgment of the court below, and to have
the appellants acquired. On the other hand, the Solicitor-General maintains
that the appellant Ancheta, like his two co-appellants, is guilty of murder, as
principal. The Solicitor-General takes the view that the appellants were
engaged in the commission of an unlawful act when Salazar was shot and
killed by Gaspi.lawphi1.net
It is undisputed that, at the time of the commission of the alleged crime, all
the fifteen persons originally included as accused in this case, were
members of a constabulary detachment in the municipal district of Balabac,
Province of Palawan. The appellant Ancheta, with the rank of third lieutenant,
was their commander. The appellant Del Rosario was a sergeant, while the
appellant Gaspi was a private. Ancheta became engaged who belonged to
one of the most prominent families in that municipal district. Bibiana had two
brothers named Cirilo and Rufo. About six months, prior to the occurence of
the events which gave rise to this case, the engagement of Ancheta to
Bibiana was broken. Whether because of this rupture or some other reason,
the relations between Ancheta and the Sanson brothers appeared to be quite
strained. The Sanson family was running a store located on the ground floor
of their house facing the main street. On that fateful Sunday morning,
January 13, 1935, Bibiana, her two brothers, and the deceased Salazar were
gathered in the store. After the mass and while passing in front of the store,
Ancheta was assaulted and beaten by the Sanson brother and and received
multiple bruises and cuts about the face. In the course of the scuffle Ancheta
fell down, and while Cirilo grappled with him, Rufo continued to box him.
Ancheta carried a pistol on his waist, and while he was thus being attacked
by the Sanson brothers, the deceased Salazar took the pistol and kept it.
The evidence is irreconcilably in conflict as to what transpired afterwards. It
is likewise in conflict as to what motivated the assault perpetrated on
Ancheta by the Sanson brothers.
According to the evidence for the prosecution, Bibiana approached Ancheta,
as he was walking in front of the store, in order to demand from him an
explanation about certain statements alleged to have been made by
Ancheta, which were derogatory to the dignity of Bibiana; that Ancheta, out
of spite, slapped Bibiana on the face and thereupon Bibiana's brothers, Rufo
and Cirilo, came out of the store and engaged Ancheta in a fight giving him a
bad beating; that in the course of the fight Salazar pulled out Ancheta's pistol
from his waist and kept it, presumably to forestall more serious
consequences; that after the combatants had been separated, six soldiers
arrived and tried to strike Salazar and the two brothers; that, at this juncture,
Ancheta ran to the barracks and had a bugle call to arms sounded; that in
response to the call, all the soldiers composing the garrison, except one who
remained on guard duty, with loaded guns and fixed bayonets, marched to
the town, firing in the air as they went; that they arrested the two brothers
and Salazar; that while Salazar was under the custody of the soldiers,
appellant Del Rosario gave him a blow on the stomach with his left fist, while
with his right hand he struck him with his pistol; that Salazar became groggy,
and as he was falling down, appellant Gaspi shot him.
On the part of the defense, Ancheta testified than on the morning in question,
while on his way to the forest station, he saw Bibiana standing in the store;
that she came out to meet him and said that she wanted to ask him
something; that, smiling, she pointed to his right shoulder and asked what he
had on it; that he looked at his shoulder and, as he did so, Bibiana embraced
him tightly; that Bibiana's brothers, Rufo and Cirilo, and Salazar came out of
the store and attacked him; that Rufo struck him on the back of the head and
his sight became dim; that he was thrown down and Rufo and Cirrilo
mounted on him and beat him on the face with stones; that he scratched
Cirilo with his left fingers; that the sergeant of police came and separated the
Sanson brothers from him; that when he stood up he noticed that his pistol
was missing from its holster; that he inquired who took it, and Salazar
answered: "I have your pistol but I will not give it"; that he left and went to the
store of Wy Dian Lo to see his face, which was bleeding, in the mirror; that
from that store, he proceeded to the barracks; that he did not reach the
barracks because he met appellant Del Rosario that he had been assaulted
by the Sanson brothers, their sister Bibiana, and Salazar; that he further told
Del Rosario that his pistol was with Salazar, and ordered him to make the
necessary investigation to effect the arrest; that after talking with Del
Rosario, he went to his residence and lay down; that while thus living down
in his house, he heard shots from the direction of the town; that although he
felt weak, he made an effort to go down to find out the cause of the shooting
suspecting that the shots had been fired by his soldiers, and fearing that they
might have done harm; that when he reached the intersection of two roads
near the Catholic church, he saw soldiers coming out of the house of the
Sanson family, and he stopped and waited for them; that when the soldiers
came near him, he asked corporal Sapad, who came ahead of the rest of the
soldiers and who accompanied the Sanson brothers, about the shooting; that
Sapad answered that they had been fired in the air to effect the arrest of the
Sanson brothers who closed themselves in their house and did not want to
surrender; that he and the soldiers walked towards the barracks; that when
they came in front of the church, he heard two shots coming from behind;
that he immediately went back and saw Salazar lying on the ground; that the
first shot he heard was a pistol shot and the second must have been fired
from a rifle; that upon reaching the place where Salazar lay dead, he asked
who killed him, and the appellant Gaspi answered: "I did, sir. I shot him
because he wanted to shot against the sergeant once more"; that he then
ordered Del Rosario to watch the corpse, and left for his house with private
De Guzman to have his wounds treated.
Ancheta, G.R. Nos. 46250 and 46251, Nov. 29, 1938.) While it may appear
to the mind of the average person that there was an altogether excessive
show of force on the part of the members of the constabulary involved in this
case when they effected the arrest of the Sanson brothers and Salazar, we
must bear in mind that we are dealing here with men who were trained to
take no chances in an emergency and to uphold their authority by force of
arms. And while we may not approved of their conduct in this particular
instance, we must not allow such consideration to affect our judgment as to
their guilt o innocence of the particular crime now imputed to them.
The judgment appealed from must be reversed, and the appellants acquitted,
with costs de oficio. So ordered.
Avanceña C.J., Villa-Real, Imperial and Diaz, JJ., concur.

Gaspi testified that he was among the soldiers who wee sent out to arrest the
Sanson brothers and Salazar; that after arresting them they started to take Separate Opinions
them to the barracks; that the three persons arrested did not come out of the
house of the Sanson family at the same time; that the Sanson brothers came
out fist, and were guarded by Del Rosario, Sapad and three other soldiers; CONCEPCION , J., dissenting:
that Salazar was under the custody of corporal Baquiao and himself; that
they were not able to take Salazar to the barracks because upon nearing an I dissent because I find no reason for altering the conclusions of the
acacia tree, Del Rosario and private Aguilar approached them and the former appealed judgment.
required Salazar to surrender Ancheta's pistol; that Salazar told Del Rosario
he did not have the pistol, whereupon the latter told the former that he would
search his person; that as Del Rosario was about to approach Salazar to
search him, the latter stepped back and at the same time dew a pistol out of
the left pocket of his trousers and fired at Del Rosario; that the latter could
parry Salazar's left hand, and thus avoided the shot; that Salazar again
stepped back and was about to fire again at Del Rosario when he shot and
killed Salazar to save Del Rosario's life.

The theory of the defense is that the Sanson brothers, their sister Bibiana
and Salazar had conspired to assault Ancheta. While there are some
circumstances which seem to lend plausibility to this theory, we are unable to
accept it. A conspiracy to commit a crime must be established by positive
evidence, and such evidence does not obtain here. Neither is there enough
evidence to support the theory of the prosecution that the purpose of the
soldiers in marching to the town was not merely to arrest the Sanson
brothers and Salazar, but mainly to avenge the assault committed against
Ancheta by the Sanson brothers. If such were the case, if the soldiers were
really determined to take the law into their hands and punish those who
assaulted and wounded their superior officer, Ancheta, the first object of their
revenge would have been the Sanson brothers, and not Salazar. And yet the
former suffered no serious bodily harm at the hands of the soldiers. The
evidence fails to show that there was even an attempt on the part of any of
the soldiers to shoot anyone of the Sanson brothers. What the evidence for
the prosecution tends to show is that upon seeing the Sanson brothers,
Ancheta wanted to shoot them, but was prevented by Del Rosario and EN BANC
Baquiao. Granting this to be true, it reveals that Del Rosario and Baquiao [G.R. No. 132547. September 20, 2000]
who, as sergeant and corporal, respectively, were in charge of the expedition
sent out to arrest the Sanson brothers and Salazar, preserved their self- PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SPO1 ERNESTO
control, and did not run amuck, as some of the witnesses for the prosecution ULEP, accused-appellant.
would have us believe. That Gaspi shot Salazar in defense of Del Rosario's
life is, we believe, established by a preponderance of evidence. Gaspi, is, DECISION
therefore, except from criminal liability. (Revised Penal Code, article 11,
clause 3.) It follows that Ancheta and Del Rosario must also be acquitted. BELLOSILLO, J.:

Upon a careful scrutiny of the evidence in this case, we are inclined to
believe that, in convicting the appellants, the trial court was unduly
influenced, unconsciously no doubt, by the local atmosphere which seems to
have been strongly unfavorable to the appellants. This is indicated by the
facts that the appellants and their codefendants in the court below were even
prosecuted and convicted for the crime of sedition, which action the Solicitor-
General, upon a more calm and careful review of the evidence, later
admitted to have been unwarranted, when he asked for a reversal of the
judgment of conviction for the said crime of sedition. (See People vs.
In the aftermath of an incident where a certain Buenaventura Wapili[1] went
berserk at Mundog Subdivision, Poblacion Kidapawan, Cotabato, in the early
morning of 22 December 1995, Police Officer Ernesto Ulep was found guilty
of murder and sentenced to death by the trial court for killing Wapili. Ulep
was also ordered to indemnify the heirs of the victim in the amount of
P50,000.00 and to pay the costs.[2]
The evidence shows that at around two o' clock in the morning of 22
December 1995 Buenaventura Wapili was having a high fever and was
heard talking insensibly to himself in his room. His brother-in-law, Dario
Leydan, convinced him to come out of his room and talk to him, but Wapili
told Leydan that he could not really understand himself. After a while, Wapili
went back to his room and turned off the lights. Moments later, the lights
went on again and Leydan heard a disturbance inside the room, as if Wapili
was smashing the furniture.[3] Unable to pacify Wapili, Leydan called Pastor
Bonid of the Alliance Church of Kidapawan to help him "pray over" Wapili,
but they could not enter the latter's room as he became wild and violent.
Suddenly, Wapili bolted out of his room naked and chased Leydan.
Thereafter, Leydan with the aid of two (2) of his neighbors attempted to tie
Wapili with a rope but was unsuccessful as Wapili was much bigger in built
and stronger than anyone of them.[4] Wapili, who appeared to have
completely gone crazy, kept on running without any particular direction.
Thus, Leydan went to the house of policewoman Norma Plando, a neighbor,
and asked for assistance. As Wapili passed by the house of Plando, he
banged Plando's vehicle parked outside. Using a hand-held radio, Plando
then contacted SPO1 Ernesto Ulep, SPO1 Edilberto Espadera and SPO2
Crispin Pillo, all members of the PNP assigned to secure the premises of the
nearby Roman Catholic Church of Kidapawan.[5]
At around four o'clock in the morning of the same day, SPO1 Ulep together
with SPO1 Espadera and SPO2 Pillo arrived at the scene on board an Anfra
police service jeep. The three (3) police officers, all armed with M-16 rifles,
alighted from the jeep when they saw the naked Wapili approaching them.
The kind of weapon Wapili was armed with is disputed. The police claimed
that he was armed with a bolo and a rattan stool, while Wapili's relatives and
neighbors said he had no bolo, but only a rattan stool.
SPO1 Ulep fired a warning shot in the air and told Wapili to put down his
weapons or they would shoot him. But Wapili retorted "pusila!" ("fire!") and
continued advancing towards the police officers. When Wapili was only about
two (2) to three (3) meters away from them, SPO1 Ulep shot the victim with
his M-16 rifle, hitting him in various parts of his body. As the victim slumped
to the ground, SPO1 Ulep came closer and pumped another bullet into his
head and literally blew his brains out.[6]
The post mortem examination of the body conducted by Dr. Roberto A.
Omandac, Municipal Health Officer of Kidapawan, showed that Wapili
sustained five (5) gunshot wounds: one (1) on the right portion of the head,
one (1) on the right cheek, one (1) on the abdomen and two (2) on the right
thigh: SHEENT - gunshot wound on the right parietal area with fractures of
the right temporoparietal bones with evisceration of brain tissues, right
zygomatic bone and right mandible, lateral aspect; CHEST AND BACK - with
powder burns on the right posterior chest; ABDOMEN - gunshot wound on
the right upper quadrant measuring 0.5 cm. in diameter (point of entry) with
multiple powder burns around the wound and on the right lumbar area (point
of exit). Gunshot wound on the suprapubic area (point of entry);
EXTREMETIES - with gunshot wounds on the right thigh, upper third,
anterior aspect measuring 0.5 cm. in diameter with powder burns (point of
entry) and right buttocks measuring 0.5 cm. in diameter (point of exit);
gunshot wound on the right thigh, upper third, posterolateral aspect; CAUSE
OF DEATH - multiple gunshot wounds.[7]
Dr. Omandac concluded that the shots were fired at close range, perhaps
within twenty-four (24) inches, judging from the powder burns found around
some of the wounds in the body of the victim,[8] and that the wound in the
head, which caused the victim's instantaneous death, was inflicted while "the
victim was in a lying position."[9]
The Office of the Ombudsman for the Military filed an Information for murder
against SPO1 Ulep. The accused pleaded not guilty to the charge on
arraignment, and insisted during the trial that he acted in self-defense.
However, on 28 October 1997, the trial court rendered judgment convicting
the accused of murder and sentencing him to death -
The means employed by the accused to prevent or repel the alleged
aggression is not reasonable because the victim, Buenaventura Wapili, was
already on the ground, therefore, there was no necessity for the accused to
pump another shot on the back portion of the victim's head. Clearly the
gravity of the wounds sustained by the victim belies the pretension of the
accused that he acted in self-defense. It indicates his determined effort to kill
the victim. It is established that accused (sic) was already in the ground that
would no longer imperil the accused's life. The most logical option open to
the accused was to inflict on the victim such injury that would prevent the
victim from further harming him. The court is not persuaded by the accused's
version because if it is true that the victim attacked him and his life was
endangered - yet his two (2) companions SPO1 Espadera and SPO2 Pillo
did not do anything to help him but just witness the incident - which is
unbelievable and unnatural behavior of police officers x x x x
WHEREFORE, prescinding from the foregoing, judgment is hereby rendered
finding the accused Ernesto Ulep guilty beyond reasonable doubt of the
crime of Murder, the accused is hereby sentenced to suffer the extreme
penalty of Death, to indemnify the heirs of Buenaventura Wapili the amount
of P50,000.00 without subsidiary imprisonment in case of insolvency and to
pay the costs.
Death penalty having been imposed by the trial court, the case is now before
us on automatic review. Accused-appellant prays for his acquittal mainly on
the basis of his claim that the killing of the victim was in the course of the
performance of his official duty as a police officer, and in self-defense.
Preliminarily, having admitted the killing of Wapili, accused-appellant
assumed the burden of proving legal justification therefor. He must establish
clearly and convincingly how he acted in fulfillment of his official duty and/or
in complete self-defense, as claimed by him; otherwise, he must suffer all the
consequences of his malefaction. He has to rely on the quantitative and
qualitative strength of his own evidence, not on the weakness of the
prosecution; for even if it were weak it could not be disbelieved after he had
admitted the killing.[10]
Before the justifying circumstance of fulfillment of a duty under Art. 11, par. 5,
of The Revised Penal Code may be successfully invoked, the accused must
prove the presence of two (2) requisites, namely, that he acted in the
performance of a duty or in the lawful exercise of a right or an office, and that
the injury caused or the offense committed be the necessary consequence of
the due performance of duty or the lawful exercise of such right or office. The
second requisite is lacking in the instant case.
Accused-appellant and the other police officers involved originally set out to
perform a legal duty: to render police assistance, and restore peace and
order at Mundog Subdivision where the victim was then running amuck.
There were two (2) stages of the incident at Mundog Subdivision. During the
first stage, the victim threatened the safety of the police officers by
menacingly advancing towards them, notwithstanding accused-appellant's
previous warning shot and verbal admonition to the victim to lay down his
weapon or he would be shot. As a police officer, it is to be expected that
accused-appellant would stand his ground. Up to that point, his decision to
respond with a barrage of gunfire to halt the victim's further advance was
justified under the circumstances. After all, a police officer is not required to
afford the victim the opportunity to fight back. Neither is he expected - when
hard pressed and in the heat of such an encounter at close quarters - to
pause for a long moment and reflect coolly at his peril, or to wait after each
blow to determine the effects thereof.
However, while accused-appellant is to be commended for promptly
responding to the call of duty when he stopped the victim from his potentially
violent conduct and aggressive behavior, he cannot be exonerated from
overdoing his duty during the second stage of the incident - when he fatally
shot the victim in the head, perhaps in his desire to take no chances, even
after the latter slumped to the ground due to multiple gunshot wounds
sustained while charging at the police officers. Sound discretion and restraint
dictated that accused-appellant, a veteran policeman,[11] should have
ceased firing at the victim the moment he saw the latter fall to the ground.
The victim at that point no longer posed a threat and was already incapable
of mounting an aggression against the police officers. Shooting him in the
head was obviously unnecessary. As succinctly observed by the trial court -

Once he saw the victim he fired a warning shot then shot the victim hitting
him on the different parts of the body causing him to fall to the ground and in
that position the accused shot the victim again hitting the back portion of the
victim's head causing the brain to scatter on the ground x x x x the victim,
Buenaventura Wapili, was already on the ground. Therefore, there was no
necessity for the accused to pump another shot on the back portion of the
victim's head.
It cannot therefore be said that the fatal wound in the head of the victim was
a necessary consequence of accused-appellant's due performance of a duty
or the lawful exercise of a right or office.
Likewise, the evidence at hand does not favor his claim of self-defense. The
elements in order for self-defense to be appreciated are: (a) unlawful
aggression on the part of the person injured or killed by the accused; (b)
reasonable necessity of the means employed to prevent or repel it; and, (c)
lack of sufficient provocation on the part of the person defending himself.[12]
The presence of unlawful aggression is a condition sine qua non. There can
be no self-defense, complete or incomplete, unless the victim has committed
an unlawful aggression against the person defending himself.[13] In the
present case, the records show that the victim was lying in a prone position
on the ground - bleeding from the bullet wounds he sustained, and possibly
unconscious - when accused-appellant shot him in the head. The aggression
that was initially begun by the victim already ceased when accused-appellant
attacked him. From that moment, there was no longer any danger to his life.
This Court disagrees with the conclusion of the court a quo that the killing of
Wapili by accused-appellant was attended by treachery, thus qualifying the
offense to murder. We discern nothing from the evidence that the assault
was so sudden and unexpected and that accused-appellant deliberately
adopted a mode of attack intended to insure the killing of Wapili, without the
victim having the opportunity to defend himself.
On the contrary, the victim could not have been taken by surprise as he was
given more than sufficient warning by accused-appellant before he was shot,
i.e., accused-appellant fired a warning shot in the air, and specifically
ordered him to lower his weapons or he would be shot. The killing of Wapili
was not sought on purpose. Accused-appellant went to the scene in
pursuance of his official duty as a police officer after having been summoned
for assistance. The situation that the victim, at the time accused-appellant
shot him in the head, was prostrate on the ground is of no moment when
considering the presence of treachery. The decision to kill was made in an
instant and the victim's helpless position was merely incidental to his having
been previously shot by accused-appellant in the performance of his official
duty.
There is treachery when the offender commits any of the crimes against
persons, employing means, methods, or forms in the execution thereof which
tend directly and specially to insure its execution, without risk to himself
arising from the defense which the offended party might make.[14]
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 accused-appellant. Accordingly, for failure of the
prosecution to prove treachery to qualify the killing to murder, accused-
appellant may only be convicted of homicide.
Indeed, to hold him criminally liable for murder and sentence him to death
under the circumstances would certainly have the effect of demoralizing
other police officers who may be called upon to discharge official functions
under similar or identical conditions. We would then have a dispirited police
force who may be half-hearted, if not totally unwilling, to perform their
assigned duties for fear that they would suffer the same fate as that of
accused-appellant.
This brings us to the imposition of the proper penalty.
We find in favor of accused-appellant the incomplete justifying circumstance
of fulfillment of a duty or lawful exercise of a right. Under Art. 69 of The
Revised Penal Code, "a penalty lower by one or two degrees than that
prescribed by law shall be imposed if the deed is not wholly excusable by
reason of the lack of some of the conditions required to justify the same or to
exempt from criminal liability in the several cases mentioned in Arts. 11 and
12, provided that the majority of such conditions be present. The courts shall
impose the penalty in the period which may be deemed proper, in view of the
number and nature of the conditions of exemption present or lacking."
Incomplete justification is a special or privileged mitigating circumstance,
which, not only cannot be offset by aggravating circumstances but also
reduces the penalty by one or two degrees than that prescribed by law.[15]
Undoubtedly, the instant case would have fallen under Art. 11, par. 5 of The
Revised Penal Code had the two (2) conditions therefor concurred which, to
reiterate: first, that the accused acted in the performance of a duty or the
lawful exercise of a right or office; and second, that the injury or offense
committed be the necessary consequence of the due performance of such
duty or the lawful exercise of such right or office. But here, only the first
condition was fulfilled. Hence, Art. 69 is applicable, although its "that the
majority of such conditions be present," is immaterial since there are only
two (2) conditions that may be taken into account under Art. 11, par. 5.
Article 69 is obviously in favor of the accused as it provides for a penalty
lower than that prescribed by law when the crime committed is not wholly
justifiable. The intention of the legislature, obviously, is to mitigate the
penalty by reason of the diminution of either freedom of action, intelligence,
or intent, or of the lesser perversity of the offender.[16]
We likewise credit in favor of accused-appellant the mitigating circumstance
of voluntary surrender. The police blotter of Kidapawan Municipal Police
Station shows that immediately after killing Wapili, accused-appellant
reported to the police headquarters and voluntarily surrendered himself.[17]
Article 249 of The Revised Penal Code prescribes for the crime of homicide
the penalty of reclusion temporal, the range of which is twelve (12) years and
one (1) day to twenty (20) years. There being an incomplete justifying
circumstance of fulfillment of a duty, the penalty should be one (1) degree
lower, i.e., from reclusion temporal to prision mayor, pursuant to Art. 69, in
relation to Art. 61, par. 2, and Art. 71, of the Code, to be imposed in its
minimum period since accused-appellant voluntarily surrendered to the
authorities and there was no aggravating circumstance to offset this
mitigating circumstance. Applying the Indeterminate Sentence Law, the
maximum of the penalty shall be taken from the minimum period of prision
mayor, the range of which is six (6) years and one (1) day to eight (8) years,
while the minimum shall be taken from the penalty next lower in degree
which is prision correccional, in any of its periods, the range of which is six
(6) months and one (1) day to six (6) years.
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.[18] 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.[19] 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.
WHEREFORE, the appealed Judgment is MODIFIED. Accused-appellant
SPO1 ERNESTO ULEP is found guilty of HOMICIDE, instead of Murder, and
is sentenced to an indeterminate prison term of four (4) years, two (2)
months and ten (10) days of prision correccional medium as minimum, to six
(6) years, four (4) months and twenty (20) days of prision mayor minimum as
maximum. He is further ordered to indemnify the heirs of Buenaventura -SPO1 Ulep, together with Espadera and Pillo, arrived at the scene armed
Wapili in the amount of P50,000.00, and to pay the costs. with M-16 rifles and saw the naked Wapili approaching them.

SO ORDERED. -The police claimed that Wapili was armed with a bolo and a rattan stool,
while Wapili’s relatives and neighbours said he had no bolo, but only a rattan
stool.

-SPO1 Ulep fired a warning shot in the air and told Wapili to put down his
weapons ar they would shoot him.

-When Wapili was only about 2-3 meters away from them, SPO1 Ulep shot
the victim with his M-16 rifle, hitting him in various parts of his body. As the
victim slumped to the ground, SPO1 Ulep came closer and pumped another
bullet into his head and literally blew his brains out.

Issue: w/n accussed should be acquitted on the basis of his claim that the
killing of the victim was in the course of the performance of his official duty as
a police officer, and in self-defense

Held: It cannot be said that the fatal wound in the head of the victim was a
necessary consequence of accused-appellant’s due performance of a duty or
the lawful exercise of a right or office.

The evidence does not favour his claim of self-defense.

Accused-appelant SPO1 ERNESTO ULEP is found guilty of Homicide,

instead of murder.

RD:

-The accused must prove the presence of 2 requisites: (1) that he acted in
the performance of a duty or in the lawful exercise of a right or an office, and
(2) the injury caused or the offense committed be the necessary
consequence of the due performance of the duty or the lawful exercise of
such right or office.

There were two stages of the incident:

1. The victim threatened the safety of the police officers by menacingly

advancing towards them. Up to that point, his decision to respond with a
barrage of gunfire to halt the victim’s further advance was justified under the
circumstances.

2.When he fatally shot the victim in the head, perhaps in his desire to take no
chances, even after the latter slumped to the ground due t multiple gunshot
wounds sustained while charging at the police officers. He cannot be
exonerated from overdoing his duty.

-The aggression that was initially begun by the victim already ceased when
accused-appellant attacked him. From that moment, there was no longer any
danger to his life.

-No treachery, thus the offense is only murder. Victim was given more than
sufficient warning before he was shot.

ULEP v. PEOPLE –Art. 69 of RPC is applicable. (tignan nyo na lang) :)

BY MAROON 5 PARTNERS AND ASSOCIATES JUNE 1, 2012 ART. 11
BLOWING BRAINS OUT RPC Incomplete justification is a special or privileged mitigating circumstance,
Facts: which, not only cannot be offset by aggravating circumstances but also
reduces the penalty by one or two degrees than that prescribed by law.
-On Dec 22 1995, Buenaventura Wapili appeared to have gone crazy and
kept on running without any particular direction.
The instant case would have fallen under Art. 11, par 5 had the two
conditions therefore concurred.