Mitigating Circumstances

SECOND DIVISION
[Adm. Matter No. 384 . February 21, 1946.]
THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . NICOLAS

JAURIGUE and AVELINA JAURIGUE , defendants. AVELINA JAURIGUE ,
appellant.
Jose Ma. Recto for appellant.

Assistant Solicitor General Enriquez and Solicitor Palma for appellee.
SYLLABUS
1. CRIMINAL LAW; HOMICIDE; EXEMPTING CIRCUMSTANCES; DEFENSE OF

HONOR. — The attempt to rape a woman constitutes an unlawful aggression su cient
to put her in a state of legitimate defense, inasmuch as a woman's honor cannot but be
esteemed as a right as precious, if not more, than her very existence; and it is evident
that a woman who, thus imperiled, wounds nay kills the offender, should be afforded
exemption from criminal liability, since such killing cannot be considered a crime from
the moment it became the only means left for her to protect her honor from so great an
outrage.
2. ID.; ID.; ID.; ID.; CASE AT BAR. — When the deceased sat by the side of
defendant and appellant on the same bench, near the door of the barrio chapel and
placed his hand on the upper portion of her right thigh, without her consent, the said
chapel was lighted with electric lights, and there were already several people, about ten
of them, inside the chapel, including her own father and the barrio lieutenant; there was
and there could be no possibility of her being raped. And when she gave A. C. a thrust at
the base of the left side of his neck in icting upon him a mortal wound 4½ inches deep,
causing his death a few moments later, the means employed by her in the defense of
her honor was evidently excessive. Held: That she cannot be legally declared
completely exempt from criminal liability.
3. ID.; ID.; MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER
OBFUSCATION. — The fact that defendant and appellant immediately and voluntarily
and unconditionally surrendered to the barrio lieutenant, admitting having stabbed the
deceased, and agreed to go to her house shortly thereafter and to remain there subject
to the order of the said barrio lieutenant, an agent of the authorities, and the further fact
that she had acted in the immediate vindication of a grave offense committed against
her a few moments before, and upon such provocation as to produce passion and
obfuscation, or temporary loss of reason and self-control, should be considered as
mitigating circumstances in her favor.
4. ID.; ID.; ID.; LACK OF INTENTION TO COMMIT so GRAVE A WRONG AS THAT
ACTUALLY COMMITTED. — It appearing that defendant and appellant merely wanted to
punish the offending hand of the deceased with her knife, as shown by the fact that she
in ected upon him only one single wound, the mitigating circumstance of lack of
intention to commit so grave a wrong as that actually committed should be considered
in her favor.
5. ID.; ID.; AGGRAVATING CIRCUMSTANCES; COMMISSION OF OFFENSE IN
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CONSECRATED PLACE. — The aggravating circumstance that the killing was done in a
place dedicated to religious worship, cannot be legally considered, where there is no
evidence to show that the defendant and appellant had murder in her heart when she
entered the chapel the fatal night.
DECISION
DE JOYA , J : p
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First
Instance of Tayabas, for the crime of murder, of which Nicolas Jaurigue was acquitted,
but defendant Avelina Jaurigue was found guilty of homicide and sentenced to an
indeterminate penalty ranging from seven years, four months and one day of prision
mayor to thirteen years, nine months and eleven days of reclusion temporal, with the
accessory penalties provided by law, to indemnify the heirs of the deceased, Amado
Capiña, in the sum of P2,000, and to pay one-half of the costs. She was also credited
with one-half of the period of preventive imprisonment suffered by her.
From said judgment of conviction, defendant Avelina Jaurigue appealed to the
Court of Appeals for Southern Luzon, and in her brief led therein on June 10, 1944,
claimed —
"(1) That the lower court erred in not holding that said appellant had acted
in the legitimate defense of her donor and that she should be completely
absolved of all criminal responsibility;
"(2) That the lower court erred in not nding in her favor the additional
mitigating circumstances that (a) she did not have the intention to commit so
grave a wrong as that actually committed, and that (b)she voluntarily surrendered
to the agents of the authorities; and
"(3) That the trial court erred in holding that the commission of the alleged
offense was attented by the aggravating circumstance of having been committed
in a sacred place."
The evidence adduced by the parties, at the trial in the court below, has
sufficiently established the following facts:
That both the defendant and appellant Avelina Jaurigue and the deceased Amado
Capiña lived in the barrio of Sta. Isabel, city of San Pablo, Province of Laguna; that for
sometime prior to the stabbing of the deceased by defendant and appellant, in the
evening of September 20, 1942, the former had been courting the latter in vain, and that
on one occasion, about one month before that fatal night, Amado Capiña snatched a
handkerchief belonging to her, bearing her nickname "Aveling,: while it was being
washed by her cousin, Josefa Tapay.
On September 13, 1942, while Avelina was feeding a dog under her house,
Amado approached her and spoke to her of his love, which she atly refused, and he
thereupon suddenly embraced and kissed her and touched her breast, on account of
which Avelina, a resolute and quick- tempered girl, slapped Amado, gave him st blows
and kicked him. She kept the matter to herself, until the following morning when she
informed her mother about it. Since then, she armed herself with a long fan knife,
whenever she went out, evidently for self-protection.
On September 15, 1942, about midnight, Amado climbed up the house of
defendant and appellant, and surreptitiously entered the room where she was sleeping.
He felt her forehead, evidently with the intention of abusing her. She immediately
screamed for help, which awakened her parents and brought them to her side. Amado
came out from where he had hidden under a bed in Avelina's room and kissed the hand
of Nicolas Jaurigue, her father, asking for forgiveness; and when Avelina's mother made
an attempt to beat Amado, her husband prevented her from doing so, stating that
Amado probably did not realize what he was doing. Nicolas Jaurigue sent for the barrio
lieutenant, Casimiro Lozada, and for Amado's parents, the following morning. Amado's
parents came to the house of Nicolas Jaurigue and apologized for the misconduct of
their son; and as Nicolas Jaurigue was then angry, he told them to end the conversation,
as he might not be able to control himself.
In the morning of September 20, 1942, Avelina received information that Amado
had been falsely boasting in the neighborhood of having taken liberties with her person
and that she had even asked him to elope with her and that if he should not marry her,
she would take poison; and that Avelina again received information of Amado's
bragging at about 5 o'clock in the afternoon of that same day.
At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas
Jaurigue went to the chapel of the Seventh Day Adventists of which he was the
treasurer, in their barrio, just across the provincial road from his house, to attend
religious services, and sat on the front bench facing the altar with the other o cials of
the organization and the barrio lieutenant, Casimiro Lozada. Inside the chapel it was
quite bright as there were electric lights.
Defendant and appellant Avelina Jaurigue entered the chapel shortly after the
arrival of her father, also for the purpose of attending religious services, and sat on the
bench next to the last one nearest the door. Amado Capiña was seated on the other
side of the chapel. Upon observing the presence of Avelina Jaurigue, Amado Capiña
went to the bench on which Avelina was sitting and sat by her right side, and, without
saying a word, Amado, with the greatest of impudence, placed his hand on the upper
part of her right thigh. On observing this highly improper and offensive conduct of
Amado Capiña, Avelina Jaurigue, conscious of her personal dignity and honor, pulled
out with her right hand the fan knife marked Exhibit B, which she had in a pocket of her
dress, with the intention of punishing Amado's offending hand. Amado seized Avelina's
right hand, but she quickly grabbed the knife with her left hand and stabbed Amado
once at the base of the left side of the neck, in icting upon him a wound about 41/2
inches deep, which was necessarily mortal. Nicolas Jaurigue, who was seated on one of
the front benches, saw Amado bleeding and staggering towards the altar, and upon
seeing his daughter still holding the bloody knife, he approached her and asked: "Why
did you do that," and answering him, Avelina said: "Father, I could not endure anymore."
Amado Capiña died from the wound a few minutes later. Barrio lieutenant Casimiro
Lozada, who was also in the same chapel, approached Avelina and asked her why she
did that, and Avelina surrendered herself, saying: "Kayo na po and bahala sa aquin,"
meaning: "I hope you will take care of me." or more correctly, "I place myself at your
disposal." Fearing that Amado's relatives might retaliate, barrio lieutenant Lozada
advised Nicolas Jaurigue and herein defendant and appellant to go home immediately,
to close their doors and windows and not to admit anybody into the house, unless
accompanied by him. That father and daughter went home and locked themselves up,
following instructions of the barrio lieutenant, and waited for the arrival of the municipal
authorities; and when three policemen arrived in their house, at about 10 o'clock that
night, and questioned them about the incident, defendant and appellant immediately
surrendered the knife marked as Exhibit B, and informed said policemen brie y of what
had actually happened in the chapel and of the previous acts and conduct of the
deceased, as already stated above, and went with said policemen to the police
headquarters, where her written statements were taken, and which were presented as a
part of the evidence for the prosecution.
The high conception of womanhood that our people possess, however humble
they may be, is universal. It has been entertained and has existed in all civilized
communities.
A beautiful woman is said to be a jewel; a good woman, a treasure; and that a
virtuous woman represents the only true nobility. And they are the future wives and
mothers of the land Such are the reasons why, in the defense of their honor, when
brutally attacked, women are permitted to make use of all reasonable means available
within their reach, under the circumstances. Criminologists and courts of justice have
entertained and upheld this view.
On the other hand, it is the duty of every man to protect and show loyalty to
womanhood, as in the days of chivalry. There is a country where women freely go out
unescorted and, like the beautiful roses in their public gardens, they always receive the
protection of all. That country is Switzerland.
In the language of Viada, aside from the right to life on which rests the legitimate
defense of our own person, we have the right to property acquired by us, and the right
to honor which is not the least prized of our patrimony (1 Viada, Codigo Penal, 5th ed.,
pp. 172, 173).
The attempt to rape a woman constitutes an unlawful aggression su cient to
put her in a state of legitimate defense, inasmuch as a woman's honor cannot but be
esteemed as a right as precious, if not more, than her very existence; and it is evident
that a woman who, thus imperiled, wounds, may kills the offender, should be afforded
exemption from criminal liability, since such killing cannot be considered a crime from
the moment it became the only means left for her to protect her honor from so great an
outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague and Alcansare, 62
Phil., 504).
As long as there is actual danger of being raped, a woman is justi ed in killing her
aggressor, in the defense of her honor. Thus, where the deceased grabbed the
defendant in a dark night at about 9 o'clock, in an isolated barrio trail, holding her rmly
from behind, without warning and without revealing his identity, and, in the struggle that
followed, touched her private parts, and that she was unable to free herself by means of
her strength alone, she was considered justi ed in making use of a pocket knife in
repelling what she believed to be an attack upon her honor, and which ended in his
death, since she had no other means of defending herself, and consequently exempt
from all criminal liability (People vs. De la Cruz, 61 Phil., 344).
And a woman, in defense of her honor, was perfectly justi ed in in icting wounds
on her assailant with a bolo which she happened to be carrying at the time, even though
her cry for assistance might have been heard by people nearby, when the deceased
tried to assault her in a dark and isolated place, while she was going from her house to
a certain tienda, for the people of making purchases (United States vs. Santa Ana and
Ramos, 22 Phil., 249).
In the case, however, in which a sleeping woman was awakened at night by
someone touching her arm, and, believing that some person was attempting to abuse
her, she asked who the intruder was and receiving no reply, attacked and killed the said
person with a pocket knife, if was held that, notwithstanding the woman's belief in the
supposed attempt, it was not su cient provocation or aggression to justify her
completely in using a deadly weapon. Although she actually believed it to be the
beginning of an attempt against her, she was not completely warranted in making such
a deadly assault, as the injured person, who turned out to be her own brother-in-law
returning home with his wife, did not do any other act which could be considered as an
attempt against her honor (United States vs. Apego, 23 Phil., 391).
In the instant case, if defendant and appellant had killed Amado Capiña, when the
latter climbed up her house late at night on September 15, 1942, and surreptitiously
entered her bedroom, undoubtedly for the purpose of raping her, as indicated by his
previous acts and conduct, instead of merely shouting for help, she could have been
perfectly justified in killing him, as shown by the authorities cited above.
According to the facts established by the evidence and found by the learned trial
court in this case, when the deceased sat by the side of defendant and appellant on the
same bench, near the door of the barrio chapel and placed his hand on the upper
portion of her right thigh, without her consent, the said chapel was lighted with electric
lights, and there were already several people, about ten of them, inside the chapel,
including her own father and the barrio lieutenant and other dignitaries of the
organization; and under the circumstances, there was and there could be no possibility
of her being raped. And when she gave Amado Capiña a thrust at the base of the left
side of his neck, in icting upon him a mortal wound 41/2 inches deep, causing his
death a few moments later, the means employed by her in the defense of her honor was
evidently excessive; and under the facts and circumstances of the case, she cannot be
legally declared completely exempt from criminal liability.
But the fact that defendant and appellant immediately and voluntarily and
unconditionally surrendered to the barrio lieutenant in said chapel, admitting having
stabbed the deceased, immediately after the incident, and agreed to go to her house
shortly thereafter and to remain there subject to the order of the said barrio lieutenant,
an agent of the authorities (United States vs. Fortaleza, 12 Phil., 472); and the further
fact that she had acted in the immediate vindication of a grave offense committed
against her a few moments before, and upon such provocation as to produce passion
and obfuscation, or temporary loss of reason and self-control, should be considered as
mitigating circumstances in her favor (People vs. Parana, 64 Phil., 331; People vs.
Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86).
Defendant and appellant further claims that she had not intended to kill the
deceased but merely wanted to punish his offending hand with her knife, as shown by
the fact that she in icted upon him only one single wound. And this is another
mitigating circumstance which should be considered in her favor (United States vs.
Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil., 123).
The claim of the prosecution, sustained by the learned trial court, that the offense
was committed by the defendant and appellant, with the aggravating circumstance that
the killing was done in a place dedicated to religious worship, cannot be legally
sustained; as there is no evidence to show that the defendant and appellant had murder
in her heart when she entered the chapel that fatal night. Avelina is not a criminal by
nature. She happened to kill under the greatest provocation. She is a God-fearing young
woman, typical of our country girls, who still possess the consolation of religious hope
in a world where so many others have hopelessly lost the faith of their elders and now
drifting away they know not where.
The questions raised in the second and third assignments of error appear,
therefore, to be well taken; and so is the first assignment of error to a certain degree.
In the mind of the court, there is not the least doubt that, in stabbing to death the
deceased Amado Capiña, in the manner and form and under the circumstances above
indicated, the defendant and appellant committed the crime of homicide, with no
aggravating circumstance whatsoever, but with at least three mitigating circumstances
of a quali ed character to be considered in her favor; and, in accordance with the
provisions of article 69 of the Revised Penal Code, she is entitled to a reduction by one
or two degrees in the penalty to be imposed upon her. And considering the
circumstances of the instant case, the defendant and appellant should be accorded the
most liberal consideration possible under the law (United States vs. Apego, 23 Phil.,
391; United States vs. Rivera, 41 Phil., 472; People vs. Mercado, 43 Phil., 950).
The law prescribes the penalty of reclusion temporal for the crime of homicide;
and if it should be reduced by two degrees, the penalty to be imposed in the instant
case is that of prision correccional; and pursuant to the provisions of section 1 of Act
No. 4103 of the Philippine Legislature, known as the Indeterminate Sentence Law,
herein defendant and appellant should be sentenced to an indeterminate penalty
ranging from arresto mayor in its medium degree, to prision correccional in its medium
degree. Consequently, with the modi cation of the judgment appealed from, defendant
and appellant Avelina Jaurigue is hereby sentenced to an indeterminate penalty ranging
from two months and one day of arresto mayor, as minimum, to two years, four
months, and one day of prision correccional, as maximum, with the accessory penalties
prescribed by law, to indemnify the heirs of the deceased Amado Capiña, in the sum of
P2,000, and to suffer the corresponding subsidiary imprisonment, not to exceed 1/3 of
the principal penalty, in case of insolvency, and to pay the costs. Defendant and
appellant should also be given the bene t of 1/2 of her preventive imprisonment, and
the knife marked Exhibit B ordered confiscated. So ordered.
Ozaeta, Perfecto, and Bengzon, JJ., concur.
Separate Opinions
HILADO , J., concurring :
In past dissenting and concurring opinions my view regarding the validity or

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

EN BANC
[G.R. Nos. L-33466-67. April 20, 1983.]
PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. MAMERTO NARVAEZ ,

defendant-appellant.
The Solicitor General for plaintiff-appellee.

Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.
SYLLABUS
1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCE; NOT SATISFIED AS THE

CASE AT BAR. — Appellant admitted having shot them from the window of his house
with the shotgun which he surrendered to the police authorities. He claims, however,
that he did so in defense of his person and of his rights, and therefore he should be
exempt from criminal liability. Defense of one's person or rights is treated as a
justifying circumstance under Art. 11, par. I of the Revised Penal Code, but in order for it
to be appreciated, the following requisites must occur: Unlawful aggression;
Reasonable necessity of the means employed to prevent or repel it; Lack of su cient
provocation on the part of the person defending himself (Art. II, par. 1, Revised Penal
Code, as amended). There is no question that there was aggression on the part of the
victims: Fleiseher was ordering, and Rubia was actually participating in the fencing. This
was indeed aggression, not on the person of appellant, but on his property rights. The
reasonableness of the resistance is also a requirement of the justifying circumstance
of self defense or defense of one's rights under paragraph I of Article 11, Revised Penal
Code. When the appellant red his shotgun from his window, killing his two victims, his
resistance was disproportionate to the attack. WE nd, however, that the third element
of defense of property is present, i.e., lack of su cient provocation on the part of
appellant who was defending his property. As a matter of fact, there was no
provocation at all on his part, since he was asleep at first and was only awakened by the
noise produced by the victims and their laborers. His plea for the deceased and their
men to stop and talk things over with him was no provocation at all.
2. ID.; MITIGATING CIRCUMSTANCE; SPECIAL MITIGATING CIRCUMSTANCE
OF INCOMPLETE DEFENSE. — Appellant's act in killing the deceased was not justi able,
since-not all the elements for justi cation are present. He should therefore be held
responsible for the death of his victims, but he could be credited with the special
mitigating circumstance of incomplete defense, pursuant to paragraph 6, Article 13 of
the Revised Penal Code.
3. ID.; HOMICIDE; QUALIFYING CIRCUMSTANCE NOT APPRECIATED. — The
crime committed is homicide on two counts. The qualifying circumstance of treachery
cannot be appreciated in this case because of the presence of provocation on the part
of the deceased. As WE held earlier in People vs. Manlapaz (55 SCRA 598), the element
of a sudden unprovoked attack is therefore lacking. WE likewise nd the aggravating
(qualifying) circumstance of evident premeditation not su ciently established. The
only evidence, presented to prove this circumstance was the testimony of Crisanto
Ibañez, 37 years old, married, resident of Maitum, South Cotabato, and a laborer of
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Fleischer and Company. This single evidence is not su cient to warrant appreciation of
the aggravating circumstance of evident premeditation. As WE have consistently held,
there must be "direct evidence of the planning or preparation to kill the victim, . . . it is
not enough that premeditation be suspected or surmised, but the criminal intent must
be evidenced by notorious outward acts evincing the determination to commit the
crime'' (People vs. Ordioles, 42 SCRA 238).
4. ID.; MITIGATING CIRCUMSTANCE; VOLUNTARY SURRENDER. — The trial
court has properly appreciated the presence of the mitigating circumstance of
voluntary surrender, it appearing that appellant surrendered to the authorities soon
after the shooting.
5. ID.; ID.; PASSION AND OBFUSCATION. — Passion and obfuscation
attended the commission of the crime. The appellant awoke to nd his house being
damaged and its accessibility to the highway as well as of his rice mill bodega being
closed. Not only was his house being unlawfully violated; his business was also in
danger of closing down for lack of access to the highway. These circumstances,
coming so near to the time when his rst house was dismantled, thus forcing him to
transfer to his only remaining house, must have so aggravated his obfuscation that he
lost momentarily all reason causing him to reach for his shotgun and re at the victims
in defense of hit rights.
6. ID.; PENALTY; REDUCTION IN THE IMPOSITION THEREOF. — Article 249 of
the Revised Penal Code prescribes the penalty for homicide as reclusion temporal.
Pursuant to Article 69, supra, the penalty lower by one or two degrees shall be imposed
if the deed is not wholly excusable by reason of the lack of some of the conditions
required to justify the same. Considering that the majority of the requirements for
defense of property are present, the penalty may be lowered by two degrees, i.e., to
prision correccional, And under paragraph 5 of Article 64, the same may further be
reduced by one degree, i.e., arresto mayor because of the presence of two mitigating
circumstances and no aggravating circumstance.
7. ID.; CIVIL LIABILITY; MODIFICATION. — The civil liability of the appellant
should be modi ed. In We case of Zulueta vs. Pan American World Airways (43 SCRA
397), the award for moral damages was reduced because the plaintiff contributed to
the gravity of defendant's reaction. In the case at bar, the victims not only contributed
but they actually provoked the attack by damaging appellant's properties and business.
Considering appellant's standing in the community, being married to a municipal
councilor, the victims' actuations were apparently designed to humiliate him and
destroy his reputation. Thus, the moral and material suffering of appellant and his
family deserves leniency as to his civil liability.
8. ID.; PENAL STATUTE; RETROACTIVE EFFECT APPLIED IN THE CASE AT
BAR. — Article 39 of the Revised Penal Code requires a person convicted of prision
correctional or arrests mayor and ne who has no property with which to meet his civil
liabilities to serve a subsidiary imprisonment at the rate of one (1) day for each P2.50.
However, the amendment introduced by Republic Act No. 5465 on April 21, 1969 made
the provision of Art. 39 applicable to nes only and not to reparation of the damage
caused, indemni cation of consequential damages and costs of proceedings.
Considering that Republic Act 5465 is favorable to the accused who is not a habitual
delinquent, it may be given retroactive effect pursuant to Article 22 of the Revised Penal
Code.
GUTIERREZ, Jr., J., separate opinion:
1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; SELL DEFENSE; DEFENSE
OF PROPERTY; INVOKED ONLY WHEN COUPLED WITH SOME FORM OF ATTACK ON
PERSON OF ONE ENTRUSTED WITH SAID PROPERTY. — Defense of property is not of
such importance as the right to life and defense of property can only be invoked when it
is coupled with some front of attack on the person of one entrusted with said property.
The defense of property, whether complete or incomplete, to be available in
prosecutions for murder or homicide must be coupled with an attack by the one getting
the property on the person defending it.
2. ID.; ID.; ID.; UNLAWFUL AGGRESSION; ABSENT IN CASE AT BAR. — In the
case now before Us, there is absolutely no evidence that an attack was attempted,
much less made upon the person of appellant. The mere utterance "No, gademit,
proceed, go ahead" is not the unlawful aggression which entitles appellant to the plea
of self defense. I agree with the majority opinion that the crime is homicide but without
any privileged mitigating circumstance.
3. ID.; HOMICIDE; PENALTY; LOWERED BY TWO GENERIC MITIGATING
CIRCUMSTANCES. — Since the appellant is guilty beyond reasonable doubt of two (2)
homicides, mitigated by the two generic mitigating circumstances of voluntary
surrender and obfuscation, without any aggravating circumstance, the maximum
sentence the appellant should have served was prision mayor plus the indemni cation
to each group of heirs of Davis Fleischer and of Flamiano Rubia of the sum of Four
Thousand (P4,000.00) Pesos, without subsidiary imprisonment, but without any award
for moral damages and attorney's fees.
DECISION
MAKASIAR , J : p
This is an appeal from the decision of the Court of First Instance of South
Cotabato, Branch I, in Criminal Cases Nos. 1815 and 1816 for murder which, after a
joint trial, resulted in the conviction of the accused in a decision rendered on September
8, 1970, with the following pronouncement:
"Thus, we have a crime of MURDER quali ed by treachery with the
aggravating circumstance of evident premeditation offset by the mitigating
circumstance of voluntary surrender. The proper penalty imposable, therefore, is
RECLUSION PERPETUA (Arts. 248 and 64, Revised Penal Code).
"Accordingly, nding Mamerto Narvaez guilty beyond reasonable doubt of
the crime of murder,
"(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION
PERPETUA, to indemnify the heirs of the deceased Davis Q. Fleischer in the sum
of P12,000,00 as compensatory damages, P10,000.00 as moral damages,
P2,000.00 as attorney's fees, the offended party having been represented by a
private prosecutor, and to pay the costs;
"(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION
PERPETUA, to indemnify the heirs of the deceased Flaviano Rubia in the sum of
P12,000.00 as compensatory damages, P10,000.00 as moral damages,
P2,000.00 as attorney's fees, the offended party having been represented by a
private prosecutor, and to pay the costs" (p. 48, rec.).
The facts are summarized in the People's brief, as follows:

"At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus
Verano and Cesar Ibañez, together with the two deceased Davis Fleischer and
Flaviano Rubia, were fencing the land of George Fleischer, father of deceased
Davis Fleischer. The place was in the boundary of the highway and the hacienda
owned by George Fleischer. This is located in the municipality of Maitum, South
Cotabato. At the place of the fencing is the house and rice drier of appellant
Mamerto Narvaez (pp. 179-182, t.s.n., Pieza II). At that time, appellant was taking
his rest, but when he heard that the walls of his house were being chiselled, he
arose and there he saw the fencing going on. If the fencing would go on,
appellant would be prevented from getting into his house and the bodega of his
ricemill. So he addressed the group, saying -'Pare, if possible you stop destroying
my house and if possible we will talk it over - what is good,' addressing the
deceased Rubia, who is appellant's compadre. The deceased Fleischer, however,
answered: 'No, gademit, proceed, go ahead.' Appellant apparently lost his
equilibrium and he got his gun and shot Fleischer, hitting him. As Fleischer fell
down, Rubia ran towards the jeep, and knowing there is a gun on the jeep,
appellant red at Rubia, likewise hitting him (pp. 127-133, t.s.n., Defense
transcript). Both Fleischer and Rubia died as a result of the shooting' (pp. 9-14,
t.s.n., Pieza I; pp. 8-9, Appellant's Brief, p. 161, rec.).
It appears, however, that this incident is intertwined with the long drawn out legal
battle between the Fleischer and Co., Inc. of which deceased Fleischer was the
secretary-treasurer and deceased Rubia the assistant manager, on the one hand, and
the land settlers of Cotabato, among whom was appellant. LibLex
From the available records of the related cases which had been brought to the
Court of Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this Court on certiorari
(G.R. No. L-26757 and L-45504), WE take judicial notice of the following antecedent
facts:
Appellant was among those persons from northern and central Luzon who went
to Mindanao in 1937 and settled in Maitum, a former sitio of Kiamba, and now a
separate municipality of South Cotabato. He established his residence therein, built his
house, cultivated the area, and was among those who petitioned then President Manuel
L. Quezon to order the subdivision of the defunct Celebes Plantation and nearby
Kalaong Plantation totalling about 2,000 hectares, for distribution among the settlers.
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an
American landowner in Negros Oriental, led sales application No. 21983 on June 3,
1937 over the same area formerly leased and later abandoned by Celebes Plantation
Company, covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land surveyor did the actual
survey in 1941 but the survey report was not submitted until 1946 because of the
outbreak of the second world war. According to the survey, only 300 hectares identi ed
as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside for Sales Application No.
21983, while the rest were subdivided into sublots of 5 to 6 hectares each to be
distributed among the settlers (pp. 32-33, G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer and Company
was declared open for disposition, appraised and advertised for public auction. At the
public auction held in Manila on August 14, 1948, Fleischer and Company was the only
bidder for P6,000.00. But because of protests from the settlers the corresponding
award in its favor was held in abeyance, while an investigator was sent by the Director
of Lands to Kiamba in the person of Atty. Jose T. Gozon. Atty. Gozon came back after
ten days with an amicable settlement signed by the representative of the settlers. This
amicable settlement was later repudiated by the settlers, but the Director of Lands,
acting upon the report of Atty. Gozon, approved the same and ordered the formal
award of the land in question to Fleischer and Company. The settlers appealed to the
Secretary of Agriculture and Natural Resources, who, however, a rmed the decision in
favor of the company.
On May 29, 1950, the settlers led Civil Case No. 240 in the Court of First
Instance of Cotabato which then consisted only of one sala, for the purpose of
annulling the order of the Secretary of Agriculture and Natural Resources which
a rmed the order of the Director of Lands awarding the contested land to the
company. The settlers, as plaintiffs, lost that case in view of the amicable settlement
which they had repudiated as resulting from threats and intimidation, deceit,
misrepresentation and fraudulent machination on the part of the company. They
appealed to the Court of Appeals (CA-G.R. No. 28858-R) which likewise a rmed on
August 16, 1965 the decision of the Court of First Instance in favor of the company.
This resulted in the ouster of the settlers by an order of the Court of First
Instance dated September 24, 1966, from the land which they had been occupying for
about 30 years. Among those ejected was the appellant who, to avoid trouble,
voluntarily dismantled his house, built in 1947 at a cost of around P20,000.00, and
transferred to his other house which he built in 1962 or 1963 near the highway. The
second house is not far from the site of the dismantled house. Its ground oor has a
store operated by Mrs. June Talens who was renting a portion thereof. He also
transferred his store from his former residence to the house near the highway. Aside
from the store, he also had a rice mill located about 15 meters east of the house, and a
concrete pavement between the rice mill and the house, which is used for drying grains
and copra.
On November 14, 1966, appellant was among the settlers on whose behalf Jose
V. Gamboa and other leaders led Civil Case No. 755 in the Court of First Instance of
Cotabato, Branch I, to obtain an injunction or annulment of the order of award with
prayer for preliminary injunction. During the pendency of this case, appellant on
February 21, 1967 entered into a contract of lease with the company whereby he
agreed to lease an area of approximately 100 to 140 square meters of Lot No. 38 from
the company (Exh. 9, p. 1, Folder of Exhibits for Defense) for a consideration of P16.00
monthly. According to him, he signed the contract although the ownership of the land
was still uncertain, in order to avoid trouble, until the question of ownership could be
decided. He never paid the agreed rental, although he alleges that the milling job they
did for Rubia was considered payment. On June 25, 1968, deceased Fleischer wrote
him a letter with the following tenor:
"You have not paid six months rental to Fleischers & Co., Inc. for that
portion of land in which your house and ricemill are located as per agreement
executed on February 21, 1967. You have not paid even after repeated attempts
of collection made by Mr. Flaviano Rubia and myself.
"In view of the obvious fact that you do not comply with the agreement, I
have no alternative but to terminate our agreement on this date.
"I am giving you six months to remove your house, ricemill, bodega, and
water pitcher pumps from the land of Fleischers & Co., Inc. This six-month period
shall expire on December 31, 1966.
"In the event the above constructions have not been removed within the six-
month period, the company shall cause their immediate demolition" (Exhibit 10, p.
2, supra).
On August 21, 1968, both deceased, together with their laborers, commenced
fencing Lot 38 by putting bamboo posts along the property line parallel to the highway.
Some posts were planted right on the concrete drier of appellant, thereby cutting
diagonally across its center (pp. 227-228, t.s.n., Vol. 2), with the last post just adjacent
to appellant's house (p. 231, t.s.n., supra). The fence, when nished, would have the
effect of shutting off the accessibility to appellant's house and rice mill from the
highway, since the door of the same opens to the Fleischers' side. The fencing
continued on that fateful day of August 22, 1968, with the installation of four strands of
barbed wire to the posts. prcd
At about 2:30 p.m. on the said day, appellant who was taking a nap after working
on his farm all morning, was awakened by some noise as if the wall of his house was
being chiselled. Getting up and looking out of the window, he found that one of the
laborers of Fleischer was indeed chiselling the wall of his house with a crowbar (p. 129,
t.s.n., Vol. 6), while deceased Rubia was nailing the barbed wire and deceased Fleischer
was commanding his laborers. The jeep used by the deceased was parked on the
highway. The rest of the incident is narrated in the People's Brief as above-quoted.
Appellant surrendered to the police thereafter, bringing with him shotgun No. 1119576
and claiming he shot two persons (Exh. P, p. 31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning the following
errors:
"First Assignment of Error: That the lower court erred in convicting
defendant-appellant despite the fact that he acted in defense of his person; and
"Second Assignment of Error: That the court a quo also erred in
convicting defendant-appellant although he acted in defense of his rights" (p. 20
of Appellant's Brief, p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed. Appellant
admitted having shot them from the window of his house with the shotgun which he
surrendered to the police authorities. He claims, however, that he did so in defense of
his person and of his rights, and therefore he should be exempt from criminal liability.
Defense of one's person or rights is treated as a justifying circumstance under
Art. 11, par. 1 of the Revised Penal Code, but in order for it to be appreciated, the
following requisites must occur:
"First. Unlawful aggression;
"Second. Reasonable necessity of the means employed to prevent or
repel it;
"Third. Lack of su cient provocation on the part of the person defending
himself" (Art 11, par. 1, Revised Penal Code, as amended).
The aggression referred to by appellant is the angry utterance by deceased

Fleischer of the following words: "Hindi, sigue, gademit, avante", in answer to his
request addressed to his compadre, the deceased Rubia, when he said, "Pare, hinto
mona ninyo at pag-usapan natin kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This
was in reaction to his having been awakened to see the wall of his house being
chiselled. The verbal exchange took place while the two deceased were on the ground
doing the fencing and the appellant was up in his house looking out of his window (pp.
225-227, supra). According to appellant, Fleischer's remarks caused this reaction in
him: "As if, I lost my senses and unknowingly I took the gun on the bed and unknowingly
also I shot Mr. Fleischer, without realizing it, I shot Mr. Fleischer" (p. 132, supra). As for
the shooting of Rubia, appellant testified:
"When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing
the shot, Mr. Rubia looked at Mr. Fleischer and when Mr. Fleischer fell down, Mr.
Rubia ran toward s the jeep and knowing that there was a rearm in the jeep and
thinking that if he will take that firearm he will kill me, I shot at him" (p. 132, supra,
emphasis supplied).
The foregoing statements of appellant were never controverted by the

prosecution. They claim, however, that the deceased were in lawful exercise of their
rights of ownership over the land in question, when they did the fencing that sealed off
appellant's access to the highway. LLphil
A review of the circumstances prior to the shooting as borne by the evidence

reveals that ve persons, consisting of the deceased and their three laborers, were
doing the fencing and chiselling of the walls of appellant's house, The fence they were
putting up was made of bamboo posts to which were being nailed strands of barbed
wire in several layers. Obviously, they were using tools which could be lethal weapons,
such as nail and hammer, bolo or bamboo cutter, pliers, crowbar, and other necessary
gadgets. Besides, it was not disputed that the jeep which they used in going to the
place was parked just a few steps away, and in it there was a gun leaning near the
steering wheel. When the appellant woke up to the sound of the chiselling on his walls,
his rst reaction was to look out of the window. Then he saw the damage being done to
his house, compounded by the fact that his house and rice mill will be shut off from the
highway by the fence once it is nished. He therefore appealed to his compadre, the
deceased Rubia, to stop what they were doing and to talk things over with him. But
deceased Fleischer answered angrily with "gademit" and directed his men to proceed
with what they were doing.
The actuation of deceased Fleischer in angrily ordering the continuance of the
fencing would have resulted in the further chiselling of the walls of appellant's house as
well as the closure of the access to and from his house and rice mill — which were not
only imminent but were actually in progress. There is no question, therefore, that there
was aggression on the part of the victims: Fleischer was ordering, and Rubia was
actually participating in the fencing. This was indeed aggression, not on the person of
appellant, but on his property rights.
The question is, was the aggression unlawful or lawful? Did the victims have a
right to fence off the contested property, to destroy appellant's house and to shut off
his ingress and egress to his residence and the highway?
Article 30 of the Civil Code recognizes the right of every owner to enclose or
fence his land or tenements.
However, at the time of the incident on August 22, 1968, Civil Case no. 755 for
annulment of the order of award to Fleischer and Company was still pending in the
Court of First Instance of Cotabato. The parties could not have known that the case
would be dismissed over a year after the incident on August 22, 1968, as it was
dismissed on January 23, 1970 on ground of res judicata, in view of the dismissal in
1965 (by the Court of Appeals) of Civil Case No. 240 led in 1950 for the annulment of
the award to the company, between the same parties, which the company won by virtue
of the compromise agreement in spite of the subsequent repudiation by the settlers of
said compromise agreement; and that such 1970 dismissal also carried the dismissal
of the supplemental petition led by the Republic of the Philippines on November 28,
1968 to annul the sales patent and to cancel the corresponding certi cate of title
issued to the company, on the ground that the Director of Lands had no authority to
conduct the sale due to his failure to comply with the mandatory requirements for
publication. The dismissal of the government's supplemental petition was premised on
the ground that after its ling on November 28, 1968, nothing more was done by the
petitioner Republic of the Philippines except to adopt all the evidence and arguments of
plaintiffs with whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed hoping for a
favorable judgment in Civil Case No. 755 led on November 14, 1966 and his execution
of the contract of lease on February 21, 1967 was just to avoid trouble. This was
explained by him during cross-examination on January 21, 1970, thus:
"It happened this way: we talked it over with my Mrs. that we better rent the
place because even though we do not know who really owns this portion to avoid
trouble. To avoid trouble we better pay while waiting for the case because at that
time, it was not known who is the right owner of the place. So we decided until
things will clear up and determine who is really the owner, we decided to pay
rentals" (p. 169, t.s.n., Vol. 6).
In any case, Fleischer had given him up to December 31, 1968 (Exh. 10, p. 2,
Defense Exhibits) within which to vacate the land. He should have allowed appellant the
peaceful enjoyment of his properties up to that time, instead of chiselling the walls of
his house and closing appellant's entrance and exit to the highway.
The following provisions of the Civil Code of the Philippines are in point: LLjur
"Art. 536. In no case may possession be acquired through force or

intimidation as long as there is a possessor who objects thereto. He who believes
that he has an action or a right to deprive another of the holding of a thing must
invoke the aid of the competent court, if the holder should refuse to deliver the
thing."
"Art. 539. Every possessor has a right to be respected in his
possession; and should he be disturbed therein he shall be protected in or restored
to said possession by the means established by the laws and the Rules of Court"
(Articles 536 and 539, Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had no right to destroy or

cause damage to appellant's house, nor to close his accessibility to the highway while
he was pleading with them to stop and talk things over with him. The assault on
appellant's property, therefore, amounts to unlawful aggression as contemplated by
law.
"Illegal aggression is equivalent to assault or at least threatened assault of
immediate and imminent kind" (People vs. Encomiendas, 46 SCRA 522).
In the case at bar, there was an actual physical invasion of appellant's property
which he had the right to resist, pursuant to Art. 429 of the Civil Code of the Philippines
which provides:
"Art. 429. The owner or lawful possessor of a thing has the right to
exclude any person from the enjoyment and disposal thereof. For this purpose, he
may use such force as may be reasonably necessary to repel or prevent an actual
or threatened unlawful physical invasion or usurpation of his property" (emphasis
supplied).
The reasonableness of the resistance is also a requirement of the justifying

circumstance of self-defense or defense of one's rights under paragraph 1 of Article
11, Revised Penal Code. When the appellant red his shotgun from his window, killing
his two victims, his resistance was disproportionate to the attack.
WE nd, however, that the third element of defense of property is present, i.e.,
lack of su cient provocation on the part of appellant who was defending his property.
As a matter of fact, there was no provocation at all on his part, since he was asleep at
rst and was only awakened by the noise produced by the victims and their laborers.
His plea for the deceased and their men to stop and talk things over with him was no
provocation at all.
Be that as it may, appellant's act in killing the deceased was not justi able, since
not all the elements for justi cation are present. He should therefore be held
responsible for the death of his victims, but he could be credited with the special
mitigating circumstance of incomplete defense, pursuant to paragraph 6, Article 13 of
the Revised Penal Code.
The crime committed is homicide on two counts. The qualifying circumstance of
treachery cannot be appreciated in this case because of the presence of provocation
on the part of the deceased. As WE held earlier in People vs. Manlapaz (55 SCRA 598),
the element of a sudden unprovoked attack is therefore lacking. cdrep
Moreover, in order to appreciate alevosia, "it must clearly appear that the method
of assault adopted by the aggressor was deliberately chosen with a special view to the
accomplishment of the act without risk to the assailant from any defense that the party
assailed might have made. This cannot be said of a situation where the slayer acted
instantaneously . . ." (People vs. Cañete, 44 Phil. 481).
WE likewise nd the aggravating (qualifying) circumstance of evident
premeditation not su ciently established. The only evidence presented to prove this
circumstance was the testimony of Crisanto Ibañez, 37 years old, married, resident of
Maitum, South Cotabato, and a laborer of Fleischer and Company, which may be
summarized as follows:
"On August 20, 1968 (two days before the incident) at about 7:00 A.M., he
was drying corn near the house of Mr. and Mrs. Mamerto Narvaez at the crossing.
Maitum, South Cotabato, when the accused and his wife talked to him. Mrs.
Narvaez asked him to help them, as he was working in the hacienda. She further
told him that if they fenced their house, there is a head that will be broken.
Mamerto Narvaez added 'Noy, it is better that you will tell Mr. Fleischer because
there will be nobody who will break his head but I will be the one.' He relayed this
to Mr. Flaviano Rubia, but the latter told him not to believe as they were only idle
threats designed to get him out of the hacienda" (pp. 297-303, t.s.n., Vol. 2).
This single evidence is not su cient to warrant appreciation of the aggravating

circumstance of evident premeditation. As WE have consistently held, there must be
"direct evidence of the planning or preparation to kill the victim, . . . it is not enough that
premeditation be suspected or surmised, but the criminal intent must be evidenced by
notorious outward acts evincing the determination to commit the crime" (People vs.
Ordioles, 42 SCRA 238). Besides, there must be a "showing" that the accused
premeditated the killing; that the culprit clung to their (his) premeditated act; and that
there was su cient interval between the premeditation and the execution of the crime
to allow them (him) to re ect upon the consequences of the act" (People vs. Gida, 102
SCRA 70).
Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the
deceased Davis Fleischer, neutralizes his credibility.
Since in the case at bar, there was no direct evidence of the planning or
preparation to kill the victims nor that the accused premeditated the killing, and clung
to his premeditated act, the trial court's conclusion as to the presence of such
circumstance may not be endorsed.
Evident premeditation is further negated by appellant pleading with the victims
to stop the fencing and destroying his house and to talk things over just before the
shooting.
But the trial court has properly appreciated the presence of the mitigating
circumstance of voluntary surrender, it appearing that appellant surrendered to the
authorities soon after the shooting. cdll
Likewise, We nd that passion and obfuscation attended the commission of the

crime. The appellant awoke to nd his house being damaged and its accessibility to the
highway as well as of his rice mill bodega being closed. Not only was his house being
unlawfully violated; his business was also in danger of closing down for lack of access
to the highway. These circumstances, coming so near to the time when his rst house
was dismantled, thus forcing him to transfer to his only remaining house, must have so
aggravated his obfuscation that he lost momentarily all reason causing him to reach for
his shotgun and re at the victims in defense of his rights. Considering the antecedent
facts of this case, where appellant had thirty years earlier migrated to this so-called
"land of promise" with dreams and hopes of relative prosperity and tranquility, only to
nd his castle crumbling at the hands of the deceased, his dispassionate plea going
unheeded - all these could be too much for any man — he should be credited with this
mitigating circumstance.
Consequently, appellant is guilty of two crimes of homicide only, the killing not
being attended by any qualifying nor aggravating circumstance, but extenuated by the
privileged mitigating circumstance of incomplete defense - in view of the presence of
unlawful aggression on the part of the victims and lack of su cient provocation on the
part of the appellant - and by two generic mitigating circumstance of voluntary
surrender and passion and obfuscation.
Article 249 of the Revised Penal Code prescribes the penalty for homicide as
reclusion temporal. Pursuant to Article 69, supra, the penalty lower by one or two
degrees shall be imposed if the deed is not wholly excusable by reason of the lack of
some of the conditions required to justify the same. Considering that the majority of
the requirements for defense of property are present, the penalty may be lowered by
two degrees, i.e., to prision correccional. And under paragraph 5 of Article 64, the same
may further be reduced by one degree, i.e., arresto mayor, because of the presence of
two mitigating circumstances and no aggravating circumstance. cdll
The civil liability of the appellant should be modi ed. In the case of Zulueta vs.
Pan American World Airways (43 SCRA 397), the award for moral damages was
reduced because the plaintiff contributed to the gravity of defendant's reaction. In the
case at bar, the victims not only contributed but they actually provoked the attack by
damaging appellant's properties and business. Considering appellant's standing in the
community, being married to a municipal councilor, the victims' actuations were
apparently designed to humiliate him and destroy his reputation. The records disclose
that his wife, councilor Feliza Narvaez, was also charged in these two cases and
detained without bail despite the absence of evidence linking her to the killings. She
was dropped as a defendant only upon motion of the prosecution dated October 31,
1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on November 4, 1968 (p.
58, CFI rec. of Criminal Case No. 1815).
Moreover, these cases arose out of an inordinate desire on the part of Fleischer
and Company, despite its extensive landholdings in a Central Visayan province, to
extend its accumulation of public lands to the resettlement areas of Cotabato. Since it
had the capability — nancial and otherwise — to carry out its land accumulation
scheme, the lowly settlers, who uprooted their families from their native soil in Luzon to
take advantage of the government's resettlement program, but had no su cient means
to ght the big landowners, were the ones prejudiced. Thus, the moral and material
suffering of appellant and his family deserves leniency as to his civil liability.
Furthermore, Article 39 of the Revised Penal Code requires a person convicted of
prision correccional or arresto mayor and ne who has no property with which to meet
his civil liabilities to serve a subsidiary imprisonment at the rate of one (1) day for each
P2.50. However, the amendment introduced by Republic Act No. 5465 on April 21, 1969
made the provisions of Art. 39 applicable to nes only and not to reparation of the
damage caused, indemni cation of consequential damages and costs of proceedings.
Considering that Republic Act 5465 is favorable to the accused who is not a habitual
delinquent, it may be given retroactive effect pursuant to Article 22 of the Revised Penal
Code. LibLex
WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF

ONLY TWO (2) HOMICIDES, MITIGATED BY THE PRIVILEGED EXTENUATING
CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS BY TWO (2) GENERIC
MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND OBFUSCATION,
WITHOUT ANY AGGRAVATING CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED
TO SUFFER AN IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO
INDEMNIFY EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN
THE SUM OF FOUR THOUSAND (P4,000.00) PESOS, WITHOUT SUBSIDIARY
IMPRISONMENT AND WITHOUT ANY AWARD FOR MORAL DAMAGES AND
ATTORNEY'S FEES.
CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST
FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST 22,
1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.
SO ORDERED.
Fernando, C.J., Teehankee, Concepcion, Jr., Guerrero, De Castro, Melencio-
Herrera, Escolin, Vasquez and Relova, JJ., concur.
Aquino, J., is on leave.
Plana, J., concur in the result.
Separate Opinions
ABAD SANTOS, J., dissenting:
I dissent. The self-defense of the Revised Penal Code refers to unlawful

aggression on persons, not property.
GUTIERREZ, JR., J., dissenting:
While I agree with the order to release the appellant, I am constrained to dissent
in part. It is true that Art. 429, Civil Code of the Philippines, provides that the owner or
legal possessor of a thing may use such force as may be reasonably necessary to repel
or prevent an actual or threatened unlawful physical invasion or usurpation of his
property. It seems to me, however, that an attack on the person defending his property
is an indispensable element where an accused pleads self-defense but what is basically
defended is only property.
Defense of property is not of such importance as the right to life and defense of
property can only be invoked when it is coupled with some form of attack on the
person of one entrusted with said property. The defense of property, whether complete
or incomplete, to be available in prosecutions for murder or homicide must be coupled
with an attack by the one getting the property on the person defending it. prLL
In the case now before Us, there is absolutely no evidence that an attack was
attempted, much less made upon the person of appellant. The mere utterance "No,
gademit, proceed, go ahead" is not the unlawful aggression which entitles appellant to
the pela of self-defense. I agree with the majority opinion that the crime is homicide but
without any privileged mitigating circumstance.
Therefore, since the appellant is guilty beyond reasonable doubt of two (2)
homicides, mitigated by the two generic mitigating circumstances of voluntary
surrender and obfuscation, without any aggravating circumstance, the maximum
sentence the appellant should have served was prision mayor plus the indemni cation
to each group of heirs of Davis Fleischer and of Flamiano Rubia of the sum of Four
Thousand (P4,000.00) Pesos, without subsidiary imprisonment, but without any award
for moral damages and attorney's fees. llcd
Considering that appellant has been under detention for almost fourteen (14)
years now since August 22, 1968, he has served the penalty and should be released.

EN BANC
[G.R. No. 132547. September 20, 2000.]
PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . SPO1 ERNESTO

ULEP , accused-appellant.

Atty. Henry Y. Mudanza for accused-appellant.
SYNOPSIS
The Regional Trial Court of Kidapawan, Cotabato, convicted accused-appellant,

Ernesto Ulep, a policeman, of the crime of murder and was sentenced to suffer the
supreme penalty of death. Accused-appellant prayed 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 o cial
duty as a police officer.
The Supreme Court a rmed appellant's conviction but found him guilty only of the
crime of homicide not murder. The Court did not concur with the conclusion of the court a
quo that the killing of the victim by accused-appellant was quali ed by treachery, thus
qualifying the offense to murder. The Court ruled that the situation of the victim, was
prostate on the ground at the time accused-appellant shot him in the head, was of no
moment when considering the presence of treachery because appellant's decision to kill
the victim was made in an instant and the victim's helpless position was merely incidental
to his having been previously shot by appellant in the performance of his o cial duty. The
Court also rejected appellant's claim that the killing of the victim was justi ed because he
did it in the ful llment of a lawful duty. While 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 o cers. Sound discretion and
restraint dictated that accused-appellant, a veteran policeman, should have ceased ring
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.
SYLLABUS
1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; FULFILLMENT OF DUTY;

REQUISITES. — Before the justifying circumstance of ful llment 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 o ce, 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.

2. ID.; ID.; ID.; FATALLY SHOOTING VICTIM AT POINT WHERE HE NO LONGER
POSED THREAT AND WAS ALREADY INCAPABLE OF MOUNTING AGGRESSION NOT
CONSIDERED IN PERFORMANCE OF DUTY OR LAWFUL EXERCISE OF RIGHT; CASE AT
BAR. — 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, should have ceased ring 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 o cers.
Shooting him in the head was obviously unnecessary. As succinctly observed by the trial
court — "Once he saw the victim he red 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 . . . 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."
3. ID.; ID.; SELF-DEFENSE; NOT APPLICABLE. — 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 su cient provocation on the part of the person defending himself. 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. 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.
4. ID.; MURDER; QUALIFYING CIRCUMSTANCES; TREACHERY; NOT PRESENT
WHERE DECISION TO KILL WAS MADE IN AN INSTANT AND VICTIM'S HELPLESS
POSITION WAS MERELY INCIDENTAL TO HIS HAVING BEEN PREVIOUSLY SHOT. — 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 su cient warning
by accused-appellant before he was shot, i.e., accused-appellant red a warning shot in the
air, and speci cally 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 o cial duty as a police o cer 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 o cial
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. 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.
5. ID.; PENALTIES; APPELLANT ENTITLED TO SPECIAL OR PRIVILEGED
MITIGATING CIRCUMSTANCE OF INCOMPLETE JUSTIFICATION. — We nd in favor of
accused-appellant the incomplete justifying circumstance of ful llment 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 justi cation 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. 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: rst , that the accused acted in the
performance of a duty or the lawful exercise of a right or o ce; 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 o ce. But here, only the rst condition was ful lled.
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 justi able. 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.
6. ID.; MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER; APPLICABLE
IN CASE AT BAR. — 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. DHACES
7. ID.; JUSTIFYING CIRCUMSTANCES; FULFILLMENT OF DUTY; THE RIGHT TO

KILL OFFENDER IS NOT ABSOLUTE, AND MAY BE USED ONLY AS LAST RESORT, AND
UNDER CIRCUMSTANCES INDICATING THAT OFFENDER CANNOT OTHERWISE BE TAKEN
WITHOUT BLOODSHED; JUDGMENT AND DISCRETION OF POLICE OFFICERS IN
PERFORMANCE OF THEIR DUTIES MUST BE EXERCISED NEITHER CAPRICIOUSLY NOR
OPPRESSIVELY, BUT WITHIN REASONABLE LIMITS. — 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
o cers with authority to arbitrarily judge the necessity to kill. It may be true that police
o cers sometimes nd 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 o cers in the performance of their duties must be
exercised neither capriciously nor oppressively, but within reasonable limits. In the
absence of a clear and legal provision to the contrary, they must act in conformity with the
dictates of a sound discretion, and within the spirit and purpose of the law. We cannot
countenance trigger-happy law enforcement o cers 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.
DECISION
BELLOSILLO , J : p
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 O cer 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 o cers, all armed with M-16 ri es, 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. DcTaEH
SPO1 Ulep red a warning shot in the air and told Wapili to put down his weapons or
they would shoot him. But Wapili retorted "pusila!" (" re!") and continued advancing
towards the police o cers. When Wapili was only about two (2) to three (3) meters away
from them, SPO1 Ulep shot the victim with his M-16 ri e, 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 O cer of Kidapawan, showed that Wapili sustained ve (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); EXTREMITIES — 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 red 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 O ce of the Ombudsman for the Military led 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 in ict 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 . . .
WHEREFORE, prescinding from the foregoing, judgment is hereby rendered

nding 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 o cial duty
as a police officer, and in self-defense.
Preliminarily, having admitted the killing of Wapili, accused-appellant assumed the
burden of proving legal justi cation therefor. He must establish clearly and convincingly
how he acted in ful llment of his o cial 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. 1 0
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 o ce, 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. EDATSI
Accused-appellant and the other police o cers 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 rst stage, the victim threatened the safety of
the police o cers 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 o cer, it is to be expected that accused-
appellant would stand his ground. Up to that point, his decision to respond with a barrage
of gun re to halt the victim's further advance was justi ed under the circumstances. After
all, a police o cer is not required to afford the victim the opportunity to ght 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 re ect 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 o cers. Sound discretion and restraint
dictated that accused-appellant, a veteran policeman, 1 1 should have ceased ring 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
o cers. Shooting him in the head was obviously unnecessary. As succinctly observed by
the trial court —
Once he saw the victim he red 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 . . . 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 su cient provocation on the part of the
person defending himself. 1 2
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. 1 3 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 su cient warning by accused-appellant before he was shot, i.e., accused-
appellant red a warning shot in the air, and speci cally 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 o cial duty as a police o cer 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. SAEHaC
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. 1 4 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 o cers who
may be called upon to discharge o cial 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 nd in favor of accused-appellant the incomplete justifying circumstance of
ful llment 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. 1 5 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 o ce; 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 o ce. But here, only the rst condition was ful lled. 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 justi able. 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. 1 6
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. 1 7
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 ful llment 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 o cers with authority to arbitrarily judge the
necessity to kill. 1 8 It may be true that police o cers sometimes nd 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
o cers 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. 1 9 We cannot countenance trigger-happy law
enforcement o cers 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. CDHAcI

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 Wapili in the amount of P50,000.00, and to pay the costs.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Purisima, Pardo, Buena, Gonzaga-Reyes and De Leon, Jr., JJ., concur.
Ynares-Santiago, J., is on leave.
Footnotes
1. Sometimes spelled "Wapille."
2. Decision penned by Judge Rodolfo M. Serrano, RTC-Br. 17, Kidapawan, Cotabato, prom.
28 October 1997.
3. TSN, 14 January 1997, pp. 7-9.
4. Id., p. 20.
5. TSN, 9 September 1997, pp. 7-8.
6. TSN, 12 February 1997, p. 11.

7. Records, pp. 59-60.
8. TSN, 6 June 1997, p. 18.
9. Id., p. 37.
10. People v. Cario, G.R. No. 123325, 31 March 1998, 288 SCRA 404.
11. Appellant has been in the service for 18 years and has several commendations.
12. People v. Sazon, G.R. No. 89684, 18 September 1990, 189 SCRA 700.
13. Ibid.
14. People v. Villegas, G.R. No. 118653, September 23, 1996, 262 SCRA 314.
15. See Lacanilao v. Court of Appeals, No. L-34940, June 27, 1988, 162 SCRA 563.
16. Ibid.
17. Records, p. 413; Exh. "E."
18. 4 C.J.S. § 49.
19. See People v. Pinto, G.R. No. 39519, 21 November 1991, 204 SCRA 9.

SECOND DIVISION
[G.R. No. 153287. June 30, 2008.]
NOEL GUILLERMO y BASILIANO , petitioner, vs . PEOPLE OF THE

PHILIPPINES , respondent.
DECISION
BRION , J : p
For our review is the petition 1 led by the petitioner Noel Guillermo y Basiliano
(petitioner) against the decision 2 dated November 15, 2001 and the resolution 3 dated
April 5, 2002 of the Court of Appeals (CA) in CA-G.R. CR No. 24181 . The challenged
decision 4 a rmed the decision of the Regional Trial Court (RTC), Branch 18, Roxas City
convicting and penalizing the petitioner for the crime of homicide with an indeterminate
sentence of six (6) years of prision correccional, as minimum, to ten (10) years of
prision mayor, as maximum. The assailed resolution, on the other hand, denied the
petitioner's motion for reconsideration.
BACKGROUND
For the death of one Winnie Alon (Winnie), the prosecution charged Arnaldo
Socias, 5 Joemar Palma, and the petitioner with the crime of homicide under an
Information that states:
xxx xxx xxx
That at or about 5:40 o'clock in the afternoon, on or about July 21, 1996,
at Brgy. Poblacion Takas, Municipality of Cuartero, Province of Capiz,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating[,] and mutually helping one another, armed
with knives and with intent to kill, did then and there willfully, unlawfully and
feloniously assault, attack and stab one WINNIE ALON y BILLANES, hitting the
latter and in icting multiple stab wounds on the different parts of his body,
which injuries caused his death shortly thereafter. ADETca
That due to the untimely death of Winnie Alon y Billanes[,] his heirs are
entitled to death indemnity in the amount of P50,000.00 and other damages
pursuant to the provisions of the Civil Code of the Philippines.
ACTS CONTRARY TO LAW. 6
The petitioner and his co-accused were arraigned and pleaded not guilty to the
offense charged with the assistance of their counsel de parte. The prosecution
presented Vicente Alon (Vicente) and Eddie Roque (Eddie) as witnesses in the trial that
followed; Dr. Ricardo Betita, Jr. (Dr. Betita) , Baby Lou Felipe (Baby Lou), and the three
accused — the petitioner, Arnaldo Socias (Arnaldo), and Joemar Palma (Joemar) —
took the witness stand for the defense.
The material points in the testimony of Vicente were summarized by the trial
court in its decision 7 as follows:
Vicente Alon averred that at 5:40 in the afternoon of July 21, 1996,
Winnie Alon, Wilfredo Cabison, Eddie Roque, and him [sic] were at the public
market of Cuartero, at [sic] the restaurant of Melecio Heyres to eat. 8 Noel
Guillermo, Arnel Socias, and Joemar Palma were at the restaurant drinking beer.
Noel Guillermo and Arnel Socias are known to him since childhood since they
come from the same barangay. 9 Joemar Palma is known to him only recently
in that incident. 1 0
While sitting at the table inside the restaurant, an altercation between
Arnel Socias and Winnie Alon regarding the cutting of wood by a chain saw [sic]
transpired. Noel Guillermo suddenly took hold of Winnie Alon and stabbed the
latter at the neck three (3) times. 1 1 Joemar Palma went to the kitchen and got a
knife. Arnel Socias hit him with a bottle of beer by [sic] the head. He fell down
and lost consciousness. 1 2 [Footnotes referring to the pertinent parts of the
record supplied]
Signi cantly, Vicente admitted on cross-examination that he and Winnie were already
drunk even before they went to the restaurant where the stabbing took place. 1 3
Eddie corroborated the testimony of Vicente on material points, particularly on
the state of their intoxication even before going to the scene of the stabbing. His
testimony on what transpired at the restaurant was summarized in the RTC decision 1 4
as follows:
Eddie Roque alleged that at around 5:40 o'clock in the afternoon of July
21, 1996, he, together with Winnie Alon, Vicente Alon and Wilfredo Cabison, were
[sic] inside the restaurant of Mrs. Heyres at Cuartero Public Market to leave their
tools of the chain saw [sic] and to eat and drink. 1 5 Noel Guillermo, Arnel Socias,
and Joemer Palma were ahead of them to [sic] the restaurant and were drinking
beer. They invited them and they joined them. 1 6 Before each of them could
fully consume a bottle served upon each of them, Winnie Alon and Arnel Socias
argued about the cutting of wood by means of a chain saw [sic]. The argument
was so heated that each of the protagonists stood up and Arnel Socias took 2
bottles which were thrown to Vicente Alon who was hit on the forehead. 1 7
Noel Guillermo hugged or embraced Winnie Alon and stabbed him three
times (3) on [sic] the neck with a Batangueño knife. Arnel Socias went around,
then behind, and stabbed Winnie Alon once, on the left side of his body, just
below his left armpit, with a pointed object, but he could not determine what
weapon was used. Joemar Palma also helped in stabbing Winnie Alon once,
hitting him at the right side of his body. 1 8 TECIaH
Winnie Alon resisted trying to struggle [sic], but could not move because
he was ganged up by the three. 1 9 [Footnotes referring to the pertinent parts of
the record supplied]
Dr. Betita, rural health physician of Cuartero, Capiz, declared on the witness stand
that he conducted on July 22, 1996 a postmortem examination on the body of Winnie
2 0 and made the following findings:
POSTMORTEM EXAMINATION
The postmortem examination is done on the remains of Winnie Alon, 31

years old, single, from Malagab-i, Cuartero, Capiz, was stab [sic] to death at
about 5:40 P.M. at Pob. Takas, Public Market, Cuartero, Capiz sustaining the
following injuries: CHcTIA
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. 2 1
According to Dr. Betita, the cause of death was massive hemorrhage due to multiple
stab wounds. 2 2 He added that the three (3) stab wounds were probably caused by a
sharp-bladed instrument like a knife. 2 3
The petitioner gave a different version of the events, summarized in the RTC
decision as follows:
Noel Guillermo testi ed 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 a rmatively
answered. Winnie Alon then had an altercation with Arnel Socias regarding
"labtik" (string used in marking wood to be cut). 2 4
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 "you're stupid" ("gago ka!"). Arnel
responded: "If the wood is crooked and you would deviate from line, you're
stupid." 2 5 TAacIE
Winnie Alon suddenly stood up and said to Arnel: "Don't ever call me
stupid", pointing his nger 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. 2 6 . . . [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. 2 7 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". 2 8 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. 2 9 She likewise saw the petitioner outside
the restaurant; his shirt was splattered with blood. 3 0
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. 3 1 ESHcTD
Arnaldo Socias testi ed that on July 21 1996, he, together with the petitioner and
Joemar, was drinking beer at the restaurant of Melecio Heyres 3 2 when Winnie stood up
and asked if they (Winnie's group) could join them at their table. Arnaldo and his
companions agreed. Winnie's group then transferred to the table of Arnaldo's group. 3 3
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 nished 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. 3 4 Arnaldo added that he did not see who stabbed Winnie, because
while the petitioner and Winnie were grappling, he was busy fighting with Vicente. 3 5 acITSD
Joemar Palma testi ed 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 identi ed as Vicente, Eddie, Winnie, and Wilfredo
Cabison), entered the restaurant and ordered beer. 3 6 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. 3 7 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. 3 8
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 latter's death, attended by a special or privileged
mitigating circumstance of incomplete justi cation, 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 insu ciency 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 . 3 9 [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 COURT'S 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. 4 0 [Emphasis supplied] cEaDTA
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 justi cation, 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 prosecution's evidence. 4 1
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 su cient 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. 4 2
In the present case, we nd it beyond dispute that the victim Winnie started the
ght 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. EHSCcT
We consider it also established that the petitioner did not provoke the ght 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 petitioner's 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. 4 3
In People v. Escarlos , 4 4 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, 4 5 we considered the nature and
number of wounds inflicted on the victim as important indicia material to a plea for self-
defense. EADSIa
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. 4 6
The weapons that caused these injuries were a beer bottle and, quite possibly,
ngernails as the victim and the appellant grappled with each other. 4 7 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. ATcaEH
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
in ict Winnie's fatal wounds. Clearly, the petitioner wants to impress upon us that his
response to Winnie's 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 petitioner's 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. CSDcTH
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 de ning 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 in icted 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 victim's 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 petitioner's 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 petitioner's allegation of complete self-defense, as re ected in the CA's
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 con rm the presence of broken pieces of
beer bottle in the restaurant. The Appellant did not. He and his companions,
Arnaldo and Joemar, ed from the scene, via the back door, and escaped on
board a motorcycle. CDHacE
(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" led 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. 4 8
[Underscoring in the original]AEcTaS
We see no reason to disturb these ndings as they are based on existing evidence, and
the conclusions drawn therefrom are patently reasonable. We have time and again held
that the ndings 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 ndings 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 ndings, when adopted and con rmed by
the CA, are nal 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 a rmed by the CA. 4 9 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 justi ed in undertaking a
factual review. No such exceptional grounds obtain in this case. DScTaC
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. 5 0 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 petitioner's 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 a rmed lowered the
penalty of reclusion temporal by one degree, which yields the penalty of prision mayor.
From this penalty, the maximum of the indeterminate penalty is determined by
taking into account the attendant modifying circumstances, applying Article 64 of the
Revised Penal Code. 5 1 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. aATHES
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 x
the minimum of the indeterminate penalty provided that such penalty is within the range
of prision correccional.
The CA a rmed 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 a rm this to be the legally correct and proper penalty to be imposed
upon petitioner.
We also a rm the P50,000.00 death indemnity awarded to Winnie's heirs, in
accordance with prevailing jurisprudence. 5 2
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. 5 3 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.
Quisumbing, Carpio-Morales, Tinga and Velasco, Jr., JJ., concur.
Footnotes
1. Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court.
2. Penned by Associate Justice (now retired Supreme Court Justice) Romeo J. Callejo, Sr.
and concurred in by Associate Justice Remedios Salazar-Fernando and Associate
Justice Josefina Guevarra-Salonga; rollo, pp. 21-30.
3. Id., p. 54.
4. Penned by Judge Charlito F. Fantilanan; id., pp. 31-46.
5. In some parts of the record, he is also referred to as Arnold or Arnel Socias.
6. CA rollo, p. 17.
7. Dated January 8, 2000; rollo, pp. 31-46.
8. TSN, June 23, 1998, p. 3.
9. Id., p. 4.
10. Id., p. 5.
11. Id., pp. 5-6.
12. Id., pp. 7-8.
13. Id., pp. 11-12.
14. Rollo, p. 32.
15. TSN, July 27, 1998, p. 3.
16. Id., p. 4.
17. Id., p. 5.
18. Id., pp. 5-6.
19. Id., p. 8.
20. TSN, January 26, 1999, p. 4.
21. Records, p. 216.
22. Supra, note 20, p. 6.
23. Id., pp. 9-10.
24. TSN, July 15, 1999, pp. 3-4.
25. Id., pp. 4-5.
26. Id., pp. 5-6.
27. TSN, March 23, 1999, p. 4.
28. Id., p. 5.
29. Id., p. 6.
30. Id., p. 7.
31. Id., p. 15.
32. TSN, April 6, 1999, pp. 5-6.
33. Id., p. 7.
34. Id., pp. 7-9.
35. Id., p. 10.
36. TSN, April 13, 1999, p. 3.
37. Id., p. 4.
38. Id., pp. 4-5.
39. Supra, note 14, pp. 15-16.
40. Supra, note 24, p. 6.
41. People v. Santillana, G.R. No. 127815, June 9, 1999, 308 SCRA 104.
42. Senoja v. People, G.R. No. 160341, October 19, 2004, 440 SCRA 695, 703.
43. See People v. Encomienda, G.R. No. L-26750, August 18, 1972, 46 SCRA 522; Eslabon v.
People, G.R. No. L-66202, February 24, 1984, 127 SCRA 785.
44. G.R. No. 148912, September 10, 2003, 410 SCRA 463.
45. G.R. No. 132925, December 13, 2006, 511 SCRA 13.
46. Exhibit "1", records, p. 347.
47. Supra, note 31.

48. Annex "A", rollo, p. 29.
49. Chua v. People, G.R. Nos. 150926 and 30, March 6, 2006, 484 SCRA 161, 167.
50. Article 249. Homicide. — Any person who, not falling within the provisions of article 246,
shall kill another, without the attendance of any of the circumstances enumerated in the
next preceding article, shall be deemed guilty of homicide and be punished by reclusion
temporal.
51. Article 64. Rules for the application of penalties which contain three periods. — In cases
in which the penalties prescribed by law contain three periods, whether it be a single
divisible penalty or composed of three different penalties, each one of which forms a
period in accordance with the provisions of Articles 76 and 77, the courts shall observe
for the application of the penalty the following rules, according to whether there are or
are no mitigating or aggravating circumstances: SEDIaH
1. When there are neither aggravating nor mitigating circumstances, they shall impose
the penalty prescribed by law in its medium period.
2. When only a mitigating circumstance is present in the commission of the act, they
shall impose the penalty in its minimum period.
3. When only an aggravating circumstance is present in the commission of the act, they
shall impose the penalty in its maximum period.
4. When both mitigating and aggravating circumstances are present, the court shall
reasonably offset those of one class against the other according to their relative weight.
aCcSDT
5. When there are two or more mitigating circumstances and no aggravating

circumstances are present, the court shall impose the penalty next lower to that
prescribed by law, in the period that it may deem applicable, according to the number
and nature of such circumstances.
6. Whatever may be the number and nature of the aggravating circumstances, the courts
shall not impose a greater penalty than that prescribed by law, in its maximum period.
7. Within the limits of each period, the courts shall determine the extent of the penalty
according to the number and nature of the aggravating and mitigating circumstances
and the greater or lesser extent of the evil produced by the crime.
52. See People v. Tabuelog, G.R. No. 178059, January 22, 2008; Licyayo v. People, G.R. No.
169425, March 4, 2008.
53. People v. Rodas, G.R. No. 175881, August 28, 2007, 531 SCRA 554, 573, citing People v.
Bajar, 414 SCRA 494, 510 (2003). DAETcC

SECOND DIVISION
[G.R. No. L-30801. March 27, 1974.]
THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. DOMINGO

URAL , accused-appellant.
Solicitor General Felix Q. Antonio, Assistant Solicitor General Antonlo A. Torres

and Solicitor Vicente P. Evangelista for plaintiff-appellee.
Vicente Cerilles and Emeliano Deleverio for accused-appellant.
DECISION
AQUINO , J : p
This is an appeal of defendant Domingo Ural from the decision of Judge Vicente
G. Ericta of the Court of First Instance of Zamboanga del Sur, convicting him of murder,
sentencing him to reclusion perpetua, and ordering him to indemnify the heirs of Felix
Napola in the sum of twelve thousand pesos and to pay the costs (Criminal Case No.
3280).
The judgment of conviction was based on the testimony of Brigido Alberto, a
twenty-six year old former detention prisoner in Buug, Zamboanga del Sur. He had been
accused of murder and then set at liberty on June 9, 1966 after posting bail. He went to
Barrio Camongo, Dumalinao where his father resided. On July 31, 1966, he intended to
go to his residence at Barrio Upper Lamari, Buug but night overtook him in the town. He
decided to sleep in the Buug municipal building where there would be more security.
Upon arrival in the municipal building at around eight o'clock, he witnessed an
extraordinary occurrence. He saw Policeman Ural (with whom he was already
acquainted) inside the jail. Ural was boxing the detention prisoner, Felix Napola. As a
consequence of the stic blows, Napola collapsed on the oor. Ural, the tormentor,
stepped on his prostrate body.
Ural went out of the cell. After a short interval, he returned with a bottle. He
poured its contents on Napola's recumbent body. Then, he ignited it with a match and
left the cell. Napola screamed in agony. He shouted for help. Nobody came to succor
him.
Much perturbed by the barbarity which he had just seen, Alberto left the
municipal building. Before his departure, Ural cautioned him: "You better keep quiet of
what I have done" (sic) Alberio did not sleep anymore that night. From the municipal
building, he went to the crossing, where the cargo trucks passed. He hitchhiked in a
truck hauling iron ore and went home.
Doctor Luzonia R. Bakil, the municipal health o cer, certi ed that the thirty-year
old victim, whom she treated twice, sustained second-degree burns on the arms, neck,
left side of the face and one-half of the body including the back (Exh. A). She testi ed
that his dermis and epidermis were burned. If the burns were not properly treated,
death would unsue from toxemia and tetanus infection. "Without any medical
intervention", the burns would "cause death", she said. She explained that, because there
was water in the burnt area, secondary infection would set in, or there would be
complications.
Napola died on August 25, 1966. The sanitary inspector issued a certi cate of
death indicating "burn" as the cause of death (Exh. B).
The trial court ttingly deplored the half-hearted manner in which the prosecution
(represented by Fiscal Roque and the private prosecutor, Delfin Agbu) handled the case.
It bewailed the prosecution's failure to present as witnesses Juanito de la Serna and
Ernesto Ogoc, the detention prisoners who saw the burning of Napola. They had
executed a joint affidavit which was one of the bases of the information for murder. 1
It noted that Ru na Paler, the victim's widow, who was present in court, was a
vital witness who should have been presented as a witness to prove the victim's dying
declaration or his statements which were part of the res gestae. 2
In this appeal appellant's three assignment of error may be condensed into the
issue of credibility or the su ciency of the prosecution's evidence to prove his guilt
beyond reasonable doubt.
His story is that at around nine o'clock in the evening of July 31, 1966 he was in
the municipal jail on guard duty. He heard a scream for help from Napola. He entered
the cell and found Napola's shirt in ames. With the assistance of Ernesto Ogoc and
Anecio Siton, Ural removed Napola's shirt. Ural did not summon a doctor because,
according to Napola, the burns were not serious. Besides, he (Ural) was alone in the
municipal building.
Felicisima Escareal, Ogoc's common-law wife, whom the trial court branded "as a
complete liar", testi ed that she heard Napola's scream for help. She saw that Napola's
shirt was burning but she did not know how it happened to be burned. She said that
Ural and Siton removed the shirt of Napola and put out the fire.
Teo lo Matugas, a policeman, declared that he was relieved as guard by Ural at
eight-thirty in the evening of July 31st. Matugas denied that Alberio was in the
municipal building at eight o'clock.
The trial court held that Ural's denials cannot prevail over the positive testimony
of Alberio. It observed that Ural's alleged act of removing Napola's burning shirt was at
most an indication that he was "belatedly alarmed by the consequence of his evil act"
but would not mean that he was not the incendiary.
Appellant Ural (he was thirty-four years old in March, 1969), in assailing the
credibility of Alberio, pointed out that he was not listed as a prosecution witness and
that he was convicted of murder.
Those circumstances would not preclude Alberio from being a credible witness.
It should be noted that the accused was a policeman. Ordinarily, a crime should be
investigated by the police. In this case, there was no police investigation. The crime was
investigated by a special counsel of the scal's o ce. That might explain why it was
not immediately discovered that Alberio was an eyewitness of the atrocity perpetrated
by Ural.
The testimonies of Felicisima Escareal, Ogoc's common-law wife, and Policeman
Matugas are compatible with the prosecution's theory that Ural burned Napola's shirt.
Ultimately, the factual issue is: who should be given credence, Alberio or Ural? As
already stated, the trial court which had the advantage of seeing their demeanor and
behavior on the witness stand, chose to believe Alberio. This Court, after a searching
scrutiny of the whole record, does not find any justification for disbelieving Alberio.
This case is covered by article 4 of the Revised Penal code which provides that
"criminal liability shall be incurred by any person committing a felony (delito) although
the wrongful act done be different from that which he intended". The presumption is
"that a person intends the ordinary consequences of his voluntary act" (Sec. 5[c], Rule
131, Rules of Court).
The rationale of the rule in article 4 is found in the doctrine that "el que es causa
de la causa es causa del mal causado" (he who is the cause of the cause is the cause of
the evil caused). "Conforme a dicha doctrina no alteran la relacion de causalidad las
condiciones preexistentes (como las condiciones patologicas del lesionado, la
predisposicion del ofendido, la constitucion sica del herido, etc.); ni las condiciones
concomitantes (la falta de medicos para asistir al herido); ni las condiciones
sobrevenidas (como el ttanos, la pulmon!a, o la gangrena sobrevenidos a consequencia
de la herida)" (1 Cuello Calon, Codigo Penal, 12th Ed., 1968, p. 335-336).
The similar rule in American jurisprudence is that "if the act of the accused was
the cause of the cause of death, no more is required" (40 C.J.S. 854). So, where during a
quarrel, the accused struck the victim with a lighted lamp, which broke and fell to the
oor, causing the oil to ignite and set re to the rug, and, in the course of the scu e,
which ensued on the oor, the victim's clothes caught re, resulting in burns from which
he died, there was a su cient causal relation between the death and the acts of the
accused to warrant a conviction of homicide (Williams vs. U.S., 20 Fed. 2nd 269, 40
C.J.S. 854, note 90).
There is a rule that "an individual who unlawfully in icts wounds upon another
person, which result in the death of the latter, is guilty of the crime of homicide, and the
fact that the injured person did not receive proper medical attendance does not affect
the criminal responsibility" (U.S. vs. Escalona, 12 Phil. 54). In the Escalona case, the
victim was wounded on the wrist. It would not have caused death had it been properly
treated. The victim died sixty days after the in iction of the wound. It was held that lack
of medical care could not be attributed to the wounded man the person who in icted
the wound was responsible for the result thereof.
The crime committed by appellant Ural was murder by means of re ( incendio)
(Par. 3, Art. 248, Revised Penal Code; People vs. Masin, 64 Phil. 757; U.S. vs. Burns, 41
Phil. 418, 432, 440). 3
The trial court correctly held that the accused took advantage of his public
position (Par. 1, Art. 14, Revised Penal Code). He could not have maltreated Napola if he
was not a policeman on guard duty. Because of his position, he had access to the cell
where Napola was con ned The prisoner was under his custody. "The policeman, who
taking advantage of his public position maltreats a private citizen, merits no judicial
leniency. The methods sanctioned by medieval practice are surely not appropriate for
an enlightened democratic civilization. While the law protects the police o cer in the
proper discharge of his duties, it must at the same time just as effectively protect the
individual from the abuse of the police." (U. S. vs. Pabalan, 37 Phil. 352).
But the trial court failed to appreciate the mitigating circumstance "that the
offender had no intention to commit so grave a wrong as that committed" (Par. 3, Art.
13, Revised Penal code). It is manifest from the proven facts that appellant Ural had no
intent to kill Napola. His design was only to maltreat him may be because in his drunken
condition he was making a nuisance of himself inside the detention cell. When Ural
realized the fearful consequences of his felonious act, he allowed Napola to secure
medical treatment at the municipal dispensary.
Lack of intent to commit so grave a wrong offsets the generic aggravating,
circumstance of abuse of his o cial position. The trial court properly imposed the
penalty of reclusion perpetua which is the medium period of the penalty for murder
(Arts. 64[4] and 248, Revised Penal Code).
Finding no error in the trial court's judgment, the same is a rmed with costs
against the appellant.
So ordered.
Zaldivar and Fernandez, JJ ., concur.
Fernando, J ., concurs with the quali cation set forth in the observation of Justice
Barredo.
Antonio, J ., did not take part.
Separate Opinions
BARREDO , J ., concurring :
Except for the unnecessary reference to the supposed statement of the

deceased to his wife and the joint a davit of Ogoc and De la Serna, all of which were
not properly presented in evidence, hence it is preferable not to mention them in order
to avoid any suspicion that our judgment has been in uenced by factors other than
evidence duly presented in court, I concur.
Footnotes
1. 'Republic of the Philippines . . . .)
Province of Zamboanga del Sur . . . . )
Municipality of Pagadian
JOINT-AFFIDAVIT
WE, ERNESTO OGOC, married, and JUANITO DE LA CERNA, single, both of legal
age, farmers, residents of Lakewood, Lapuyan, Zamboanga del Sur and at Buug,
Zamboanga del Sur, respectively, after having been duly sworn to in accordance with
law hereby depose and say:
That both of us were confined inside the municipal jail of Buug, Zamboanga del
Sur on July 31, 1966 for offenses allegedly committed by us and on same date our
companions inside the said jail were Anisio Siton and Felix Napola, the latter being
confined for being drunk;
That at about 8:00 o'clock in the evening, more or less on July 31, 1966, our
policeman guard by the name of Domingo Ural entered the jail and called for Felix
Napola. He called for him and told him that Felix Napola is aggressive. When Felix
Napola went near Domingo Ural, the latter boxed him at his lower chin and he fell to
the cement floor of the jail. He kicked him also at the same spot after Felix Napola fell
to the floor. Because Felix Napola cannot stand anymore, Domingo Ural got a bottle
and poured the contents of said bottle to the dress of Felix Napola. Domingo Ural
lighted a match and burned the spot where the substance in the bottle was poured in
the dress of Felix Napola. The dress of Felix Napola got burned and Felix Napola got
burned. He was forced to stand up and asked mercy from Domingo Ural. Instead
Domingo Ural locked the jail and went out and Domingo Ural threatened us not to talk
about the burning of Felix Napola to anybody or else he will burn us also.
When Felix Napola was already suffering much from the burns he sustained,
Ural became frightened and he and Inesio Siton helped put out the fire.
Affiants further sayeth none.
(SGD.) Ernesto Ogoc (SGD.) Juanito de la Cerna
ERNESTO OGOC JUANITO DE LA CERNA

(Affiant) (Affiant)
SUBSCRIBED AND SWORN to before me this 19th day of September, 1966

hereat Pagadian, Zamboanga del Sur.
(SGD.) Basilio T. Roque

BASILIO T. ROQUE
Special Counsel"
2. Mrs. Napola (Mapola) testified at the preliminary investigation conducted by Basilio T.

Roque, a special counsel, that she learned from a neighbor that her husband suffered
burns in the municipal jail in the evening of July 31, 1966. Her husband told her that
Policeman Ural had burned him. Ural allowed her to bring Napola to the dispensary
where he was treated. Because of the injuries on his mouth and his swollen gums, he
could not eat and move his head. He was confined in jail due to drunkenness. He was
burned from the waist up to the neck and on the back and right arm. She reported the
case to the mayor. That functionary said that he would not take any hand in the case.
Mrs. Napola was cross-examined by Ural's counsel.
At the same preliminary investigation the witnesses, Ernesto Ogoc and Juanito
de la Serna, testified and were cross-examined by Ural's counsel. The accused
presented evidence at the preliminary investigation.
3. "Un sujeto, despues de cohabitar con una prostituta, encendio un mixto que aplic" a uno
de los latones de petroleo que habia proximos la cama en que yacieron, inflam ndose el
contenido de aqul y cayendo el liquido sobre la prostituta, que falleci" a consequencia de
las quemaduras.
El Tribunal Supremo declara:

Que segun el articulo 418 del Codigo penal, es reo de asesinato el que por medio
de incendio mata persona que no le est ligada por alguno de los vinculos familiares
señalados en el art. 417, entendindose empleado el incendio en este concepto juridico
cuando se mata " intenta matar por medio de fuego aplicado directa " immediamente
sobre la persona objeto de la accion criminal, siempre que lo sea con riesgo de
propagacion cosas distintas, en cualquiera de las condiciones previstas en el capitulo
7., titulo 13 del libro 2. del Codigo penal; cuyo medio de ejecucion de aquel delito,
principal en la intencion del culpable estima la ley con el grave car cter que atribuye
tambin a la inundacion y al empleo del veneno, no solo por los peligros que implica,
sino igualmente por la notoria malicia, semejante la alevosia, que revela la accion que
para su xito no se detiene ante el respeto de otros derechos que pone en inminente
riesgo " quebranta y lesiona impulso de decidida resolucion.
Que todas estas consideraciones aparecen manifiestas en el acto ejecutado por
el procesado, puesto que voluntariamente emple" el petroleo inflamado para lesionar
la interfecta, poniendo el fuego, que por su natural poder se propag" al local en que se
cometi" el delito, al servicio de su proposito punible; constituyendo por esto el incendio,
elemento integrante del delito de asesinato, . . . ." (Sentencia de 29 de Noviembre de
1887, II Hidalgo, Codigo Penal, 175).

EN BANC
[G.R. No. 139542. June 21, 2001.]
PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . INOCENCIO

GONZALEZ, JR. , accused-appellant.

Pastelero Law Office for accused-appellant.
SYNOPSIS
Accused Inocencio Gonzalez, Jr. was charged, tried and subsequently found guilty of
the complex crime of Murder for the death of Feliber Andres, Double Frustrated Murder for
the injuries sustained by John Kenneth Andres and Kevin Valdez and Attempted Murder
against Noel Andres. The trial court rejected accused's theory that the shooting incident
was purely accidental and that he had no intention to shoot Noel Andres much less his wife
and children. The trial court sentenced the accused to death and ordered to pay civil
liabilities. HTcDEa
Hence, this automatic review.

Accused-appellant assailed the trial court's nding that the killing was quali ed by
treachery. Accused-appellant likewise questioned his conviction for the crime of double
frustrated murder for the injuries sustained by Kevin and Kenneth, claiming that there was
no intent to kill and the children stayed in the hospital only for six days, thus, the crime
committed were therefore two counts of slight physical injuries only.
The Supreme Court found that the shooting was not attended by treachery and
accordingly the crime committed for the death of Feliber Andres was homicide and not
murder.
In the case at bar, the encounter between Noel Andres and the accused-appellant
was a chance encounter. They were total strangers before their vehicles almost collided at
an intersection inside the memorial park. The heated exchange of remarks that followed
the near collision was fanned by a short temper, which in the case of the accused-
appellant, was augmented by the improvident use of a rearm resulting in the death of
Feliber Andres, wife of Noel Andres.
The Court had consistently held that chance encounters, impulse killing or crimes
committed at the spur of the moment or those that were preceded by heated altercations
are generally not attended by treachery for lack of opportunity of the accused to
deliberately employ a treacherous mode of attack. Thus, the sudden attack made by the
accused due to his infuriation by reason of the victim's provocation was held to be without
treachery. Sudden attacks made by the accused preceded by curses and insults by the
victim or acts taunting the accused to retaliate or the rebellious or aggressive behavior of
the victim were held to be without treachery as the victim was su ciently forewarned of
reprisal. For the rules on treachery to apply, the sudden attack must have been
preconceived by the accused, unexpected by the victim and without provocation on the
part of the latter.
Considering the nature and location of the children's injuries and the number of days
required for their treatment, and the lack of intent to kill, the Court found that the crime
committed for the injuries sustained by the children were two counts of slight physical
injuries only. As to the charge of attempted homicide, the Court dismissed the same for
evident lack of intent to kill the complainant, Noel Andres.
SYLLABUS
1. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY; ELEMENTS. —

Treachery under par. 16 of Article 14 of the Revised Penal Code is de ned as the
deliberate employment of means, methods or forms in the execution of a crime against
persons which tend directly and specially to insure its execution, without risk to the
offender arising from the defense which the intended victim might raise. For treachery to
be appreciated two elements must concur: 1) the employment of means of execution that
would insure the safety of the accused from retaliatory acts of the intended victim and
leaving the latter without an opportunity to defend himself and 2) the means employed
were deliberately or consciously adopted by the offender.
2. ID.; ID.; ID.; SUDDENNESS OF ATTACK DOES NOT BY ITSELF RENDERS THE
ATTACK TREACHEROUS; FOR TREACHERY TO BE APPRECIATED, THE SUDDEN ATTACK
MUST HAVE BEEN PRECONCEIVED BY THE ACCUSED, UNEXPECTED BY THE VICTIM AND
WITHOUT PROVOCATION ON PART OF THE LATTER. — The suddenness of the attack, the
in iction of the wound from behind the victim, the vulnerable position of the victim at the
time the attack was made or the fact that the victim was unarmed do not by themselves
render the attack as treacherous. This is of particular signi cance in a case of an
instantaneous attack made by the accused whereby he gained an advantageous position
over the victim when the latter accidentally fell and was rendered defenseless. The means
employed for the commission of the crime or the mode of attack must be shown to have
been consciously or deliberately adopted by the accused to insure the consummation of
the crime and at the same time eliminate or reduce the risk of retaliation from the intended
victim. Accordingly, it has been consistently held by this court that chance encounters,
impulse killing or crimes committed at the spur of the moment or that were preceded by
heated altercations are generally not attended by treachery for lack of opportunity of the
accused to deliberately employ a treacherous mode of attack. Thus, the sudden attack
made by the accused due to his infuriation by reason of the victim's provocation was held
to be without treachery. Sudden attacks made by the accused preceded by curses and
insults by the victim or acts taunting the accused to retaliate or the rebellious or
aggressive behavior of the victim were held to be without treachery as the victim was
su ciently forewarned of reprisal. For the rules on treachery to apply the sudden attack
must have been preconceived by the accused, unexpected by the victim and without
provocation on the part of the latter.
3. ID.; ID.; ID.; NEVER PRESUMED BUT MUST BE SHOWN AS CONCLUSIVELY AS
THE CRIME ITSELF. — This Court has also had occasion to state that whether or not the
attack succeeds against its intended victim or injures another or whether the crime
committed is graver than that intended is immaterial, as long as it is shown that the attack
is attended by treachery, the said qualifying circumstance may still be considered by the
court. Thus, the determining factor on whether or not the commission of a crime is
attended by treachery is not the resulting crime committed but the mode of attack
employed in its execution. Treachery is never presumed. It is required that the manner of
attack must be shown to have been attended by treachery as conclusively as the crime
itself. EHTIcD
4. ID.; ID.; ID.; FIRING OF GUN FROM BEHIND THE VICTIM DOES NOT BY ITSELF
AMOUNT TO TREACHERY; CASE AT BAR. — The fact that the appellant red his gun from
behind the victim does not by itself amount to treachery. There is no evidence on record
that the appellant deliberately positioned himself behind the victim to gain advantage over
him when he red the shot. On the contrary, the evidence before us reveals that the
position of the appellant's car was not of his own doing but it became so when Noel
Andres overtook his car and cut off his path.
5. ID.; ID.; ID.; SINGLE AND CONTINUOUS ATTACK CANNOT BE DIVIDED INTO
STAGES TO MAKE IT APPEAR THAT ATTACK IS TREACHEROUS; CASE AT BAR. — The trial
court's nding that the loading of the gun, the cocking of the hammer and nally the pulling
of the trigger constitute a deliberate effort on the part of appellant to use the gun as a
means of a treacherous attack is patently erroneous. A single and continuous attack
cannot be divided into stages to make it appear that treachery was involved. The entire
incident happened in a matter of minutes, as testi ed to by witnesses, and as noted by the
trial court. It was error to our mind for the trial court to divide the assault in stages to
arrive at the conclusion that the mode of attack was consciously employed by the
appellant. Contrary to the nding of the trial court that the appellant prepared the gun
before getting out of his car, the appellant testi ed that he loaded his gun before he left
the house and that it was ready to re when he alighted his car. There was no time for him
to re ect on the mode of attack since he just picked up his gun and alighted from his car
and shot at the FX a few seconds after Dino and Noel Andres started shouting at each
other.
6. ID.; ID.; ID.; ATTENDANCE THEREOF NOT DETERMINED BY THE KIND OF
WEAPON USED BUT BY THE MODE OF ATTACK EMPLOYED BY ACCUSED; CASE AT BAR.
— We do not agree that the weapon used, by itself, is determinative of treachery, unless it
is shown, and it is not herein shown, that the appellant deliberately used the gun to insure
the commission of the crime and to render the unarmed victim defenseless. As discussed
above, the encounter between the appellant and the Andreses was a chance encounter and
the appellant's gun was in the glove compartment of his car even before he left his house.
The shooting was clearly a spur of the moment or impulsive decision made by the
appellant preceded by a heated altercation at the instance of the private complainant.
Jurisprudence reaches us that under the circumstances, treachery is not obtaining. In the
case of People vs. Valles, the accused, a security guard, red his Armalite and mortally
wounded the victim when the latter approached the accused four times insisting on
entering the workplace wearing improper uniform, then cursed and insulted and challenged
the accused to a ght. We held that the shooting was not attended by treachery as the
shooting was preceded by a heated altercation at the instance of the victim. It is to be
noted that the kind of weapon used against an unarmed victim was not taken into
consideration in determining the attendance of treachery; it is the mode of attack
employed by the accused under the particular circumstances of a case that determines its
attendance in the commission of a crime. We nd that the prosecution has not discharged
its burden to show that the shooting was attended by treachery and we are convinced that
the crime committed for the death of Feliber Andres is homicide.
7. ID.; PHYSICAL INJURIES; ACCUSED SHOULD BE CONVICTED THEREOF IN
CASE OF DOUBT AS TO HIS HOMICIDAL INTENT. — As regards the injuries sustained by
the two children we nd that the crime committed are two counts of slight physical
injuries. The intent to kill determines whether the crime committed is physical injuries or
homicide and such intent is made manifest by the acts of the accused which are
undoubtedly intended to kill the victim. In a case wherein the accused did not know that a
person was hiding behind a table who was hit by a stray bullet causing super cial injuries
requiring treatment for three days, the crime committed is slight physical injuries. In case
of doubt as to the homicidal intent of the accused, he should be convicted of the lesser
offense of physical injuries.
8. ID.; SLIGHT PHYSICAL INJURIES; ACCUSED FOUND GUILTY THEREOF IN
CASE AT BAR; PENALTIES. — We have earlier pointed out that the intent to kill is absent in
this case. It was also found that one small metallic fragment was extracted from Kenneth
below his left eye while another fragment was extracted from Kevin "immediately below
the level of his skin before the cheek bone." An examination of the testimonies of the
attending physicians, showed that the wounds sustained by the two children from the
metallic fragments are not in themselves fatal but may cause death if left untreated. One
of the attending physician testi ed in court that the fragments themselves "will not cause
complication, it is the entry of the fragment" or the open wound that is susceptible to
infection. Two small fragments were no longer extracted from the face of Kevin Valdez, as
the doctor deemed it to be without danger of complication. We note that the various sizes
of the metallic fragments were not established, at least to give an indication of the severity
of the wounds sustained. Both children were discharged after six days of treatment and
there is no showing that they required subsequent treatment or that they were immobilized
for a greater number of days by reason of the injuries sustained. Considering the nature
and location of their injuries and the number of days required for their treatment, we nd
that the crime committed for the injuries sustained by the children are two counts of slight
physical injuries under Art. 266 of the Revised Penal Code which imposes a penalty of
arresto menor or imprisonment for 1 to 30 days for injuries sustained that has
incapacitated the victim for one to nine days or required medical attendance for the same
period. For evident lack of criminal intent to kill the complainant, Noel Andres, as above
stated, the information for attempted homicide must fail.
9. ID.; MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER; CANNOT BE
APPRECIATED IN FAVOR OF ACCUSED IN CASE AT BAR. — The mitigating circumstances
of voluntary surrender, passion and obfuscation, incomplete defense of a relative and lack
of intent to commit so grave a wrong, pleaded by the defense, were not convincingly
proved and none can be considered in the imposition of penalties. The testimony of
prosecution witness contradicts the appellant's pretense of voluntary surrender. Witness
Ramos testified that the appellant drove away towards the gate of the memorial park while
he was questioning him after the shooting and had not Noel Andres and onlookers blocked
his path the appellant could have fled the scene of the crime.
10. ID.; ID.; PASSION AND OBFUSCATION; REQUISITES TO BE APPRECIATED;
PROVOCATION MUST BE COMMENSURATE TO CRIME COMMITTED; CASE AT BAR. — The
mitigating circumstance of passion and obfuscation is also not obtaining. For this
mitigating circumstance to be considered, it must be shown that (1) an unlawful act
su cient to produce passion and obfuscation was committed by the intended victim; (2)
that the crime was committed within a reasonable length of time from the commission of
the unlawful act that produced the obfuscation in the accused's mind; and that (3) "the
passion and obfuscation arose from lawful sentiments and not from a spirit of
lawlessness or revenge." Noel Andres' act of shouting at the appellant's son, who was then
a nurse and of legal age, is not su cient to produce passion and obfuscation as it is
claimed by the accused. Besides, the appellant's son, Dino was shouting back at Noel
Andres. It was not a case wherein the appellant's son appeared helpless and oppressed
that the appellant lost his reason and shot at the FX of Noel Andres. The same holds true
for the appellant's claim of provocation on the part of Noel Andres. Provocation must be
su cient to excite a person to commit the wrong committed and that the provocation
must be commensurate to the crime committed. The su ciency of provocation varies
according to the circumstances of the case. The aggressive behavior of Noel Andres
towards the appellant and his son may be demeaning or humiliating but it is not su cient
provocation to shoot at the complainant's vehicle. cTCADI
11. ID.; ID.; INCOMPLETE DEFENSE OF RELATIVE; CURSING AND SHOUTING AT

ACCUSED AND HIS SON DO NOT AMOUNT TO UNLAWFUL AGGRESSION. — The plea for
the appreciation of the mitigating circumstance of incomplete defense of a relative is also
unmeritorious since the act of Andres in cursing and shouting at the appellant and his son
do not amount to an unlawful aggression against them, Dino Gonzalez.
12. ID.; ID.; LACK OF INTENT TO COMMIT SO GRAVE A WRONG; TO BE
APPRECIATED THERE MUST BE NOTABLE DISPARITY BETWEEN THE MEANS EMPLOYED
TO COMMIT A WRONG AND THE RESULTING CRIME COMMITTED; CASE AT BAR. — The
plea for the appreciation of the mitigating circumstance of lack of intent to commit so
grave a wrong is likewise devoid of merit. This mitigating circumstance is obtaining when
there is a notable disparity between the means employed by the accused to commit a
wrong and the resulting crime committed. The intention of the accused at the time of the
commission of the crime is manifested from the weapon used, the mode of attack
employed and the injury sustained by the victim. The appellant's use of a gun, although not
deliberately sought nor employed in the shooting, should have reasonably placed the
appellant on guard of the possible consequences of his act. The use of a gun is su cient
to produce the resulting crimes committed.
13. ID.; HOMICIDE; ACCUSED FOUND GUILTY THEREOF IN CASE AT BAR;
PENALTIES. — For the death of Feliber Andres, and in the absence of any mitigating
circumstance, the appellant is hereby sentenced to an indeterminate sentence of 8 years
and 1 day of prision mayor, in its medium period, as minimum to 14 years 8 months and 1
day of reclusion temporal in its medium period, as maximum.
14. ID.; PENALTIES; RULE ON IMPOSITION OF PENALTIES FOR COMPLEX
CRIMES NOT APPLICABLE TO CASE AT BAR. — The rules on the imposition of penalties for
complex crimes under Art. 48 of the Revised Penal Code are not applicable in this case.
Art. 48 applies if a single act constitutes two or more grave and less grave felonies or
when an offense is a necessary means of committing another; in such a case, the penalty
for the most serious offense shall be imposed in its maximum period. Art. 9 of the Revised
Penal Code in relation to Art. 25 de nes grave felonies as those to which the law attaches
the capital punishment or a ictive penalties from reclusion perpetua to prision mayor;
less grave felonies are those to which the law attaches a penalty which in its maximum
period falls under correctional penalties; and light felonies are those punishable by arresto
menor or ne not exceeding two hundred pesos. Considering that the offenses committed
by the act of the appellant of ring a single shot are one count of homicide, a grave felony,
and two counts of slight physical injuries, a light felony, the rules on the imposition of
penalties for complex crimes, which requires two or more grave and/or less grave felonies,
will not apply.
15. CIVIL LAW; DAMAGES; AWARD OF ACTUAL DAMAGES. — The pecuniary
award granted by the trial court for actual damages was duly established by the
testimonies of the prosecution witnesses as supported by the original receipts for
hospitalization and other medical expenses presented in evidence by the prosecution.
16. ID.; ID.; AWARD FOR LOSS OF EARNING CAPACITY, SUSTAINED. — The
award for loss of earning capacity is likewise sustained for the reason that while Feliber
Andres was pregnant and was unemployed at the time of death, it is not disputed that she
was a registered nurse and had earning capacity. Noel Andres also testi ed that he and his
wife had plans to go back to Saudi Arabia to work after Feliber had given birth to their
second baby. While there is no evidence as to Feliber's actual income at the time of her
death, in view of her temporary separation from work because of her pregnancy, we do not
consider it reversible error for the trial court to peg her earning capacity to that of the
salary of a government nurse under the salary standardization law, as a fair estimate or
reasonable assessment of her earning capacity at the time of her death. It would be
grossly inequitous to deny her spouse and her minor children damages for the support
that they would have received, considering clear evidence on record that she did have
earning capacity at the time of her death.
17. ID.; ID.; AWARD OF MORAL DAMAGES. — The awards for moral damages for
the death of Feliber Andres and for the injuries sustained by the two children, which under
the circumstances are reasonable, are likewise sustained.
PARDO, J., dissenting opinion:
1. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY; ELEMENTS. —
Treachery under Article 14, paragraph 16 of the Revised Penal Code is de ned as the
persons which tend directly and specially, to insure its execution without risk to the
be appreciated, two elements must concur: (1) the employment of means of execution
that would insure the safety of the accused from retaliatory acts of the intended victim and
leaving the latter without an opportunity to defend himself or retaliate; and (2) the means
of execution employed were deliberately or consciously adopted by the offender.
2. ID.; ID.; ID.; APPRECIATED EVEN IF ATTACK IS FRONTAL IF THE SAME IS
SUDDEN AND VICTIM WAS UNARMED; CASE AT BAR. — The means employed for the
commission of the crime or the mode of attack must be shown to have been consciously
or deliberately adopted by the accused to insure the consummation of the crime and at the
same time eliminate or reduce the risk of retaliation by the victim. At the time of the
shooting, the complainant was having a tiff with accused's son. He knew that the
complainant was not armed and there was no imminent and grave danger to the life of his
son. His conscious use of a rearm with pre-loaded multiple missile bullets against a
defenseless man who was totally unaware of the danger to his life, as the events moved
fast and he did not even hear the shot constitutes treachery. Accused insured the success
of the crime without risk to himself arising from defense or retaliation. The complainant
could not defend himself from such repower, much less retaliate. He was without any
rearm. Even if the attack was frontal, it was sudden and the victim was unarmed. Whether
or not the attack succeeds against its intended victim or injures another, or whether the
crime committed is graver than that intended is immaterial, as long as it is shown that the
attack is attended by treachery, the qualifying circumstance may still be considered.
3. ID.; ID.; ID.; PRESENT IN CASE AT BAR. — We can not agree with the accused
or the view of the Solicitor General that the shooting was not attended by treachery. Noel
Andres, who had his pregnant wife and child with him in his Tamaraw FX could have
provoked the situation but was not an aggressor. Initially he touted the accused for his
failure to observe tra c rules. However, after the altercation, complainant Andres walked
toward his vehicle because the altercation was over. On his way to the Tamaraw FX, he met
another man, who was the accused's son. It appears that Andres had another shouting
match with accused's son. Without ado, accused got his already pre-loaded pistol, alighted
from his car and red a single shot at complainant Noel Andres. He was a poor shot. The
single bullet hit instead Feliber Andres on the forehead near the temporal region above the
left eye and the splitting metallic shrapnels hit two innocent children on their faces, one on
the cheek and the other below the left eye. The intent to kill Noel Andres was evident when
accused red away at him. Accused knew that his son was not physically threatened.
Whether Noel Andres was seated at the driver's seat inside his vehicle when accused
Gonzalez red, as the prosecution contends or was standing by the door of the driver's
seat outside his vehicle, as the defense submits, there is no question that the shot was
directed at complainant Noel Andres. However, as heretofore stated, the accused was a
poor shot. He made up by arming himself with a semi-automatic pistol loaded with multi-
missile bullet that splintered like a shotgun bullet. His son was not in danger. He knew that
complainant could easily be paci ed without resorting to shooting. Whether accused over-
reacted or he shot at Andres out of rage, one thing appears clear to us: the accused
deliberately shot complainant Noel Andres treacherously in cold blood. However, it was his
wife who was fatally hit in the head (aberratio ictus) and shrapnels hit two young innocent
children. By an act of God, she delivered a baby girl alive but gave her life to Him. The
shooting was a deliberate act of the accused. We are convinced that the shooting was
attended by treachery that quali ed the crime to murder aggravated by the use of a semi-
automatic pistol specially tted with murderous missile. The crime committed for the
killing of Feliber Andres was murder, quali ed by treachery and aggravated by the use of
firearm. cSHIaA
4. ID.; FRUSTRATED HOMICIDE; COMMITTED BY ACCUSED IN CASE AT BAR;

INTENT TO KILL EVIDENT FROM THE USE OF DEADLY WEAPON. — As regards the injuries
suffered by the two children, we agree with the Solicitor General that the crime committed
was two counts of frustrated homicide. The intent to kill was evident with the use of
deadly weapon specially loaded with multi-missile bullets and such intent was clearly
made manifest by the acts of the accused undoubtedly intended to kill the victims. An
examination of the testimonies of the attending physicians showed that the wounds
sustained by the two children from the metallic fragments may cause death if left
untreated. One of the attending physicians testi ed that the fragments themselves will not
cause complications; however, it is the entry of the fragments or the open wound that is
susceptible to infection. Two small fragments were no longer extracted from the face of
Kevin Valdez as the doctors deemed it to be without danger of complication, but this could
still be life threatening. None of the mitigating circumstances pleaded by the accused was
convincingly proved to be attendant and none may be considered in the imposition of the
penalties.
DECISION
GONZAGA-REYES , J : p
Many unfortunate tragedies would not have happened if the improvident use of a
firearm did not exacerbate a simple altercation over traffic. This is one of them.

On a day intended to pay homage to the dead, a pregnant woman was shot to death
in the course of her husband's altercation with the accused-appellant and his son along the
Garden of Remembrance within the Loyola Memorial Park in Marikina. The trial court found
the accused guilty of the complex crime of murder and two counts of frustrated murder
and accordingly sentenced him to death. This case is before us on automatic review.
The details of what actually transpired in the few seconds immediately preceding
the shooting are controverted by both parties but the events leading to this tragedy are not
disputed.
In the afternoon of October 31, 1998 at about 2:30 p.m. both the families of the
private complainant Noel Andres and that of the accused-appellant Inocencio Gonzalez
were on their way to the exit of the Loyola Memorial Park. The appellant was driving a
white Isuzu Esteem with his grandson and three housemaids, while the private
complainant was driving a maroon Toyota FX with his pregnant wife Feliber Andres, his
two year old son, Kenneth, his nephew Kevin and his sister-in-law, Francar Valdez. At the
intersection near the Garden of Remembrance, while the accused-appellant Gonzalez was
turning left towards the exit and the complainant Noel Andres was headed straight along
the road to the exit their two vehicles almost collided. Noel Andres was able to timely step
on the brakes. The appellant continued driving along his way while Noel Andres drove
behind the appellant's vehicle for some time and cut him off when he found the opportunity
to do so. 1 Noel Andres then got out of his vehicle and knocked on the appellant's car
window. 2 This is as far as their versions of the incident coincide.
The prosecution's version of the incident is that Noel Andres calmly told the
appellant to be careful with his driving and informed the latter that he, Andres, is with his
family and to this Gonzalez allegedly replied, "Accidents are accidents, what's your
problem." Andres stated that he saw the appellant turning red in anger so he decided to go
back to his vehicle when he was blocked by the appellant's son who said, "Anong problema
mo sa erpat ko." Andres testi ed that he felt threatened and so he immediately boarded
his vehicle, sat at the driver's seat, closed the door, and partially opened the car window
just wide enough to talk back to appellant's son, Dino. Suddenly, one of his passengers
said "Binaril kami". He turned to his wife Feliber Andres and saw her bloodied and
unconscious. He turned around and saw his son Kenneth and nephew Kevin were also
wounded. Andres admitted in court that he and Dino were shouting at each other so that
he did not hear the shot. Andres then got out of his vehicle to warn the appellant not to
ee. He then took the wounded members of his family to the exit where there was an
ambulance standing by. The three were then taken to the Sta. Monica Hospital and were
later transferred to the Quezon City Medical Center.
The defense's version of the incident is that Andres cut the appellant's path by
positioning his FX obliquely along the appellant's lane from the latter's left side. Andres
then got out of his vehicle, stood beside the appellant's car window, and repeatedly cursed
the appellant, "Putang ina mo, ang tanda-tanda mo na hindi ka pa marunong magmaneho.
Ang bobo-bobo mo." 3 The appellant stayed inside his car and allegedly replied, "Pasensiya
ka na hindi kita nakita, nasilaw ako. Aksidente lang." The appellant Gonzalez and another
witness for the defense, Quidic, testified that Noel Andres went back to his vehicle to move
it in such a way that it is straight in front of the appellant's car. Andres allegedly got out of
his vehicle again and continued shouting and cursing at the appellant. 4 Dino, the
appellant's son, who rode in another vehicle decided to go back when he did not see his
father's car behind him. When Dino arrived at the scene he confronted Andres and the two
had an altercation. Both Dino and the appellant stated that Andres remained outside his
vehicle during the altercation with Dino. When Andres suddenly reached for something
inside his vehicle, Dino froze on the spot where he stood. This prompted the appellant to
get his gun from the glove compartment and feeling that his son was threatened he got
out of his car ready to shoot. When he saw that Andres did not have a weapon he put down
his hand holding the gun. This is when the appellant's daughter Trisha who was riding in
Dino's car arrived at the scene, walked past Dino and Andres, and pushed the appellant
away. She hugged her father and in the process held his hand holding the gun. The
appellant tried to free his hand and with Trisha's substantial body weight pushing against
him the appellant lost his balance and the gun accidentally red. The accused stated that
he did not know he shot somebody until the private complainant's sister-in-law, Francar
Valdez, got out of the vehicle carrying a bloodied small boy. The defense claims that the
appellant did not try to ee and even told the complainant's sister-in-law to take the
wounded to the hospital.
On November 4, 1998 an Information for the complex crime of Murder, Double
Frustrated Murder and Attempted Murder was filed against herein accused-appellant:
"That on or about the 31st day of October 1998, in the city of Marikina,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously with intent to kill,
attack, assault and employ personal violence by means of treachery and abuse of
superior strength upon the person of Noel Andres y Tomas, by then and there
shooting him with a Glock cal. 9mm pistol but instead hitting one Feliber Andres y
Ordoño, on the left back portion of her head, thereby in icting upon her serious
and mortal wound which directly caused her death, as well as hitting John
Kenneth Andres y Ordoño and Kevin Valdez y Ordoño physical injuries which
ordinarily would have caused their death, thus performing all the acts of
execution which would have produced the crime of murder as a consequence, but
nevertheless did not produce it by reason of some cause or causes, independent
of their will, that is, the timely and able medical assistance rendered to John
Kenneth Andres y Ordoño and Kevin Valdez y Ordoño to their damage and
prejudice as well as to the damage and prejudice of the heirs of Feliber Andres y
Ordoño."
On arraignment the accused-appellant pleaded "not guilty" to the crimes charged.

The case records show that Feliber Andres, the wife of Noel Andres did not die
instantaneously. She lived to give birth to a baby girl 5 by caesarian section and died the
following morning on November 1, 1998. The Autopsy Report 6 states:
"FINDINGS: Fairly nourished, fairly developed female cadaver, with post
mortem lividity. Conjunctivae are pale. Lips and nail beds are cyanotic. Surgical
incisions were noted at left tempero-parietal region. Surgical incisions is also
noted at the abdominal region secondary to a caesarian section.
HEAD: (1) gunshot wound, point of entry, left fronto-temporal region,
measuring 1 by 0.9 cm, 9 cm from the anterior midline, with a uniform abraded
collar measuring 0.2 cm., directed posteriorwards, slightly downwards, and
medialwards, fracturing the frontal, and left temporal bones, lacerating the left
cerebral hemisphere, with a deformed slug fragment embedded and recovered at
the posterior lobe of the left cerebral hemisphere. (2) hematoma, left orbital
region, measuring 4.5 by 2 cm, 4 cm from the anterior midline. There are subdural
and subarachnoidal hemorrhages. Stomach contains 1-1/2 glassful of partially
digested food particles mostly rice and meaty material.
CONCLUSION: Cause of death is gunshot wound on the head."
Kenneth and Kevin were treated for extraction of metallic fragments on their faces.
They were discharged from the hospital six days later or on November 6, 1998.
On June 25, 1999 the trial court rendered judgment nding that the shooting was
attended by the qualifying circumstance of treachery and held the appellant guilty of the
complex crime of murder for the death of Feliber Andres and for two counts of frustrated
murder for the injuries sustained by Kenneth Andres and Kevin Valdez and sentenced the
appellant to the maximum of the imposable penalty which is death. The trial court held:
"Beforehand, the Court takes note of the judicial admissions on the verbal
declarations of the accused that the court 'a quo' has jurisdiction over the case;
that he owns the black Gluck 9 mm. automatic pistol; that the said gun will never
re even if he drops it; that only one bullet was red from his gun; and that the
victim Feliber Andres is already dead. With this exegesis and the declarations in
open court of the eyewitness of both the prosecution and some of the defense,
there is no real dispute on the antecedent facts showing that the accused red on
Noel Andres but instead hit and caused the fatal injuries to the victims John
Kenneth Andres, Kevin Valdez and Feliber Andres resulting to the ultimate death
of the latter. The court takes further judicial admissions of the accused made in
their memorandum demonstrating the existence of ve (5) sequences of events
leading to the death of Feliber Andres and the wounding of John Kenneth Andres
and Kevin Valdez which are as follows: First is when Noel Andres overtook the car
driven of the accused and cut cross his path; Second is when Noel Andres
alighted from his vehicle and confronted Inocencio; Third is when Noel had an
argument with Dino Gonzalez, the son of the accused; Forth is when, Inocencio
seeing his son having confrontation with Noel, got his gun to protect Dino; and
Fifth is when Inocencio had a struggle with his daughter. Trisha Gonzalez, who
tried to reach for the gun and as a result of which Inocencio lost his balance and
as he was falling backward to his side, his right arm holding the gun hit the rear
window of the Tamaraw FX van and the gun accidentally went off hitting the
victim, who were all then inside the van.
The court likewise take judicial notice on the feature of the automatic
pistol used in this case which is capable of unquestionable demonstration or
ought to be known to judges because of their judicial functions. Practically, the
stages before an automatic rearm would be capable of ring are as follows: 1)
the loading of a bullet into the chamber of the gun; 2) the cocking of the hammer,
if uncocked; 3) the releasing of the safety pin; 4) the pressing of the trigger to
unleash the hammer so that the ring pin will hit the cartridge to propel the bullet
out to hit the target. Realistically, it demonstrates that a gun will not re even if
the bullet is loaded in its chamber if the hammer is uncocked; or even if cocked if
the safety pin is engaged; or even if the safety pin is disengaged if the trigger will
not be pressed. However, even if the gun is red if it is not aimed and leveled to
the target, the purpose of ring it shall not be achieved. Contrarily, once a gun is
drawn against a person, the means methods and forms employed for its
execution is already conceived. And once it is tended directly and speci cally to
insure its execution, it consequently produces the conscious and deliberate
intention. Finally if all the acts of execution had been effectively done without risk
on the part of the offender arising from any defense coming from the offended
party, treachery results. In brief, there is treachery when the offender commits any
crime against persons, employing means, methods and forms in the execution
thereof which tend directly and specially to insure its execution, without risk to
himself arising from any defense which the offended party might make (People
vs. Mesa, 276 SCRA 407; People vs. Carlos Patrolla, Jr. , G. R. No. 112445, March
7, 1996). To appreciate treachery two (2) conditions must be present, to wit: 1) the
employment of means of execution that give the person attacked no opportunity
to defend himself or retaliate; and 2) the means of execution were deliberately or
consciously adopted. (People vs. Azugue, 268 SCRA 711; People vs. Peña, G. R.
No. 116022, July 1, 1998, p. 1)
In the case at bar and guided with the above-quoted doctrinal cases,
logically, the accused is positive of the crime charged against him. When he
alighted with a drawn gun to protect his son and released all the safety measures
of his gun as he red and missed at Noel who was then unarmed, but instead hit
Kevin Valdez, John Kenneth Andres and Feliber Andres which resulted to the
death of the latter, demonstrate that the accused has executed the two (2)
conditions to generate treachery enough to qualify the crime committed to
murder."
xxx xxx xxx
"WHEREFORE, foregoing premises considered, the accused Inocencio

Gonzalez, Jr., y Esquivel is hereby found guilty beyond reasonable doubt of the
complex crime of Murder with Double Frustrated Murder and Attempted Murder
penalized under Art. 248, as amended by Republic Act No. 7659 in relation to
Article 48 of the Revised Penal Code and is sentenced to suffer the maximum
penalty of Death by lethal injection. cDHAES
The accused is further ordered to pay the following civil liabilities:

1. To the private complainant Noel Andres:
a) the amount of P50,000.00 as indemnity for the death of Feliber

Andres;
b) the amount of P3,363,663.60 as indemnity for the loss of earning
capacity of the deceased Feliber Andres;
c) the amount of P98,384.19 as funeral expenses;

d) the amount of P271,800.56 for the hospitalization expenses
incurred for the injuries sustained by the deceased Feliber Andres
and the amount of P23,622.58 representing the expenses for the
untimely delivery of the child Ma. Clarisse Andres;
e) the amount of P51,566.00 representing the hospitalization expenses

for the injuries sustained by the victim John Kenneth Andres;
f) the amount of P150,000.00 as moral damages suffered for the
untimely death of his wife Feliber Andres and for the injuries caused
to his son John Kenneth Andres;
g) the amount of P50,000.00 as and by way of attorney's fees and a
fee of P2,000.00 per appearance; and
h) the costs of the suit.
2. To the private complainant Nicasio Valdez:

a) the amount of P73,824.75 as actual damages for the injuries
sustained by the victim Kevin Valdez; and
b) the amount of P75,000.00 as and by way of moral damages.

SO ORDERED."
In his appeal, Gonzalez submits the following assignments of error:

"1. The trial court committed reversible error when it found that
treachery was present.
2. The trial court committed reversible error when it presumed that

there was treachery by taking judicial notice of the feature of the automatic pistol
involved in this case.
3. The trial court committed reversible error when it violated the

constitutional right of the accused-appellant to due process when it took judicial
notice of the feature of the automatic pistol involved in this case without notice.
4. The trial court committed reversible error when it found Accused-
Appellant guilty beyond reasonable doubt of the complex crime of Murder with
Double Frustrated Murder.
5. The trial court committed reversible error when it failed to appreciate

the mitigating circumstances of passion or obfuscation, lack of intention to
commit so grave a wrong, provocation or threat on the part of the offended party
immediately preceded the act, incomplete defense of relative, and voluntary
surrender.
6. The trial court committed reversible error when it failed to nd that

the shooting incident was accidental.
7. The trial court committed reversible error when it gave credence to

the testimonies of prosecution witnesses Elmer Ramos and Moises Castro.
8. The trial court committed reversible error when it disregarded the

basic principle that the accused is presumed innocent and his guilt must be
proven beyond reasonable doubt.
9. The trial court committed reversible error when it ordered Accused-

Appellant to pay for the civil liabilities."
The appellant seeks a reversal and prays that judgment be rendered exempting him
from criminal and civil liabilities. Appellant declared that he had no intention to shoot Noel
Andres much less his wife nor the children. He lost his balance when his daughter Trisha
approached and pushed him backwards to stop him from joining Dino and Noel Andres
but the appellant tried to free his right hand holding the gun and it accidentally red. The
single bullet red hit the last window on the left side of the Tamaraw FX. The appellant
claims that he did not see the passengers inside the vehicle at the time of the shooting.
This is corroborated by the testimony of two witnesses for the prosecution who testi ed
that the windows of Andres' vehicle are heavily tinted so that a person outside the vehicle
would not be able to see if there are people inside. It is also argued that had the appellant
intended to shoot Noel Andres he could have simply done so by shooting at him directly.
The defense asserts that the evidence for the prosecution failed to establish the
attendance of treachery and without the attendance of the said qualifying circumstance
the crime committed is homicide, not murder.
The appellant also points out that the trial court made the factual nding that the
shooting happened in a matter of seconds and that it was preceded by a heated argument
between the parties. Such being the case, it is argued that the shooting could not have
been attended by treachery. There was no time for the appellant to consciously and
deliberately employ the mode of attack against Noel Andres, nor against any one of the
actual victims, to insure its execution and at the same time to eliminate any form of
retaliation from the alleged intended victim. And yet, the trial court, contrary to the
evidence on record, held that the loading of the bullet into the chamber of the gun, the
cocking of the hammer, the release of the safety pin and the pulling of the trigger by the
appellant of his automatic pistol constitute conscious and deliberate effort to employ the
gun as a means of committing the crime and resultantly, quali ed its commission by
treachery. Such a nding presupposes that the appellant loaded the gun to shoot Noel
Andres only that very moment when his son Dino and Noel Andres were arguing. This
conclusion has no basis on record. The appellant testi ed that his gun was loaded before
he left the house and two witnesses for prosecution stated in court that a few seconds
after Noel Andres and Dino started shouting at each other, the appellant got out of his car
and shot at the last window on the left side of the complainant's vehicle. Further, the
appellant assigns as error the procedure adopted by the trial court in taking judicial notice
that the gun used by the appellant is an automatic pistol and as such, it will not re unless
aimed at the intended target. The procedure taken by the trial court is contrary to Section
3, Rule 129 of the Rules of Court. 7 The trial court should have given both parties the
opportunity to present evidence, expert evidence, if necessary, to inform the court on the
subject matter. The appellant argues that the factual nding borne by such erroneous
procedure is equally erroneous. The gun used by the appellant is a semi-automatic and not
an automatic pistol which means that the pistol used has no external safety pin to be
released and that the hammer need not be cocked. The pulling of the trigger, intentional or
not, will re the gun. The use of a semi-automatic pistol does not necessarily imply
treachery.
Appellant also argues that the testimonies of prosecution witnesses Castro and
Ramos were improperly given credence by the trial court. The appellant contends that a
reading of their testimonies would show that their narration of the incident is rather absurd
and would show that they did not witness the actual shooting. Defense witnesses,
Gonzalez and his daughter, Trisha, on the other hand, testi ed that Castro and Ramos
arrived at the scene only after the shooting.
As regards the injuries sustained by Kevin and Kenneth, it is argued that considering
that there was no intent to kill and that they stayed in the hospital only for six days, the
crime committed is physical injuries. It is argued that the trial court erred in awarding
damages. The bunch of receipts allegedly representing the medical expenses incurred for
the injuries sustained by the victims was erroneously admitted in evidence, without rst
requiring the prosecution to establish the authenticity of the receipts. The appellant also
points out that the award for loss of earning capacity has no basis as the deceased was
unemployed at the time of the incident.
Finally, the appellant assigns as error the trial court's rejection of the mitigating
circumstances pleaded by the defense which allegedly attended the commission of the
crime, i.e., lack of intent to commit so grave a wrong, passion and obfuscation, incomplete
defense of a relative and voluntary surrender. The appellant asserts that these mitigating
circumstances were duly proven during the trial and are supported by the evidence on
record. The private complainant Noel Andres testified that he saw the appellant getting red
in anger after they, Andres and the appellant, had a heated argument immediately prior to
the shooting. These admitted circumstances show that the appellant was not in his proper
state of mind at the time of the shooting. First, he was angered by Andres' abusive
language and later he got out of his car with a loaded gun to protect his son from a
perceived danger. The appellant claims that his willingness to help the injured and his
voluntary surrender to the police should likewise be considered as mitigating
circumstances in the imposition of penalties.
The Solicitor-General agrees with the appellant that the crime was not attended by
the qualifying circumstance of treachery and hence the crime committed by the appellant
for the death of Feliber Andres is homicide, not murder. The appellee takes into
consideration that the shooting was preceded by a heated argument and that the
supposed victim was placed on guard that attack was imminent. It also appears that the
shooting was done impulsively. There is no evidence that the appellant deliberately
employed the means of attack to insure execution of the crime and at the same time
eliminate the risk of retaliation from the private complainant. The appellee also agrees with
the appellant that the trial court erred in equating the use of an automatic pistol with
treachery. The trial court made the factual nding that the appellant's automatic pistol
would not re unless aimed and the trigger is deliberately pulled and hence treachery
attended the shooting. The appellee submits that if we follow the reasoning of the trial
court it would appear that the appellant intended to shoot at the complainant's vehicle only
as the shot was red at the last window on the left side of the FX away from where Andres
was allegedly seated. The fact that the gun was drawn and red does not mean that the
mode of attack was consciously and deliberately employed.
However, with respect to the injuries sustained by Kevin and Kenneth, the appellee
disagrees with the contention that the appellant is liable only for slight physical injuries.
The injuries sustained by both children are head injuries and could have caused their death
if not for the immediate medical attention given them. The number of days spent in the
hospital is not determinative of the severity of the wounds. Their nature and location
should instead be considered. The appellant cannot escape liability for frustrated
homicide for the injuries of the two children on the ground that he red a single shot at the
vehicle of Noel Andres. He is liable for all the consequences of his unlawful act even if the
crime committed is different from that intended.
As regards the pleaded mitigating circumstances, appellee asserts that none can be
considered in favor of the appellant. There is evidence on record that the appellant did not
voluntarily surrender to the police and it appears from the testimonies of witnesses that he
entertained the possibility of ight but his car was stuck in tra c along the exit of the
memorial park. His pretense of incomplete defense of a relative is belied by his own
admission that when he saw that Noel Andres did not have a gun he lowered his hand
holding the gun. There was allegedly no threat on the life of his son at the time of the
shooting, no uncontrollable fear nor irresistible force that would mitigate the commission
of the offense.
The Solicitor-General also seeks to uphold the pecuniary awards granted by the trial
court. The appellee alleges that it is not denied by the appellant that Feliber Andres was a
38 year old registered nurse at the time of the shooting. Although she was then
unemployed on account of her pregnancy, she still had earning capacity and the trial court
properly applied the salary of a government nurse under the salary standardization scheme
in the computation of damages for the loss of earning capacity. The receipts presented in
evidence by the prosecution to establish hospitalization and other medical expenses
incurred by the private complainants by reason of the injuries suffered by the victims were
duly authenticated by the prosecution witnesses and there is no dispute that they are exact
copies of the original receipts presented in court. The objections raised by the appellant in
this regard were duly met by the evidence presented by the private complainants.
In sum, the appellee asserts that considering that the appellant red a single shot
and in the process committed four offenses the appellant should be held liable for the
complex crime of homicide for the death of Feliber Andres, double frustrated homicide
against Kevin and Kenneth and attempted homicide against Noel Andres. Under the rules
on complex crimes the penalty for the gravest offense, i.e., reclusion temporal for
homicide, should be imposed in its maximum period.
The appeal has merit.
Treachery under par. 16 of Article 14 of the Revised Penal Code is de ned as the
persons which tend directly and specially to insure its execution, without risk to the
be appreciated two elements must concur: 1) the employment of means of execution that
would insure the safety of the accused from retaliatory acts of the intended victim and
leaving the latter without an opportunity to defend himself and 2) the means employed
were deliberately or consciously adopted by the offender. 8 The suddenness of the attack,
the in iction of the wound from behind the victim, the vulnerable position of the victim at
the time the attack was made or the fact that the victim was unarmed do not by
themselves render the attack as treacherous. 9 This is of particular signi cance in a case
of an instantaneous attack made by the accused whereby he gained an advantageous
position over the victim when the latter accidentally fell and was rendered defenseless. 1 0
The means employed for the commission of the crime or the mode of attack must be
shown to have been consciously or deliberately adopted by the accused to insure the
consummation of the crime and at the same time eliminate or reduce the risk of retaliation
from the intended victim. 1 1 Accordingly, it has been consistently held by this court that
chance encounters, impulse killing or crimes committed at the spur of the moment or that
were preceded by heated altercations are generally not attended by treachery for lack of
opportunity of the accused to deliberately employ a treacherous mode of attack. 1 2 Thus,
the sudden attack made by the accused due to his infuriation by reason of the victim's
provocation was held to be without treachery. Sudden attacks made by the accused
preceded by curses and insults by the victim or acts taunting the accused to retaliate or
the rebellious or aggressive behavior of the victim were held to be without treachery as the
victim was su ciently forewarned of reprisal. 1 3 For the rules on treachery to apply the
sudden attack must have been preconceived by the accused, unexpected by the victim and
without provocation on the part of the latter. 1 4
This Court has also had occasion to state that whether or not the attack succeeds
against its intended victim or injures another or whether the crime committed is graver
than that intended is immaterial, as long as it is shown that the attack is attended by
treachery, the said qualifying circumstance may still be considered by the court. 1 5 Thus,
the determining factor on whether or not the commission of a crime is attended by
treachery is not the resulting crime committed but the mode of attack employed in its
execution. 1 6
Treachery is never presumed. It is required that the manner of attack must be shown
to have been attended by treachery as conclusively as the crime itself. 1 7
We a rm the recommendation of the Solicitor-General that the shooting was not
attended by treachery and accordingly the crime committed for the death of Feliber
Andres is homicide and not murder.
The encounter between Noel Andres and the appellant was a chance encounter.
They were total strangers before their vehicles almost collided at an intersection inside the
memorial park. Unfortunately, heated exchange of remarks that followed the near collision
was fanned by a short temper, which in the case of the appellant, was augmented by the
improvident use of a firearm.
From a reading of the transcript of the testimonies of the witnesses, it would appear
that Noel Andres, who had his pregnant wife and child with him, among others, on board
the Tamaraw FX provoked the altercation. After the near collision of his vehicle with that of
the appellant, he tailed behind the latter's car towards the exit until he had the chance to
cut him off to scold him for his failure to observe tra c rules. 1 8 Andres stated in court
that he calmly told the appellant to be careful with his driving and denied that he was angry
when he alighted from his vehicle to confront the appellant. 1 9 His statement is belied by
the witnesses, two prosecution witnesses included, who uniformly testi ed that Andres
quarreled with or shouted and cursed at the appellant for the latter's recklessness at the
intersection. 2 0 The appellant narrated in court that Andres repeatedly shouted at him,
"Putang ina mo, ang tanda-tanda mo na gago ka pa". 2 1 Andres' hostile behavior towards
the appellant is evident from his statement in court that he noticed the appellant turning
red in anger. 2 2 It is highly improbable for Gonzalez to have turned red in anger had Andres
been polite, as he claims he was, in scolding Gonzalez. Andres could have simply
communicated to the appellant his disgust for the latter's bad driving when he overtook
the appellant's car near the scene of the shooting but instead he chose to block the
appellant's path, insult and virtually provoke the appellant to retaliate.
Andres stated in court that when he noticed Gonzalez' infuriation he immediately
walked towards his vehicle, because according to him the altercation was over. On his way
to his FX he met another man, whom he later found out to be the appellant's son, Dino. It
appears that the altercation was far from over because again Andres had a shouting
match this time with Dino. 2 3 In a matter of seconds, the appellant alighted from his car
and red a single shot at the last window on the left side of Andres' vehicle at an angle
away from Noel Andres. The single bullet red hit Feliber Andres on the forehead near the
temporal region above the left eye and the two children with metallic fragments of the
bullet on their faces, one at the cheek and the other below his left eye.
The prosecution did not present evidence as to the exact seating arrangement of
the victims inside the vehicle; su ce it to say, that an examination of the pictures of the
vehicle 2 4 one of which shows a mass of blood stains on the left side (towards the driver's
seat) of the white seat cover below the head rest, 2 5 would show that the deceased Feliber
must have been seated at the front passenger's seat and the children at the middle row
behind the driver's seat. 2 6 Another picture shows a bullet hole on the last window on the
left side of the vehicle 2 7 and another shows that the front windshield appears
undamaged. 2 8 A ballistics expert appeared in court for the prosecution and testi ed that
the bullet red at the FX came from the appellant's gun, which fact was admitted by the
defense. The prosecution did not inquire from the ballistics expert regarding the trajectory
of the bullet or the approximate distance of the appellant from the FX when he red his
gun to establish whether or not the appellant aimed for Noel or Feliber or simply red
indiscriminately at the latter's vehicle. 2 9
At rst blush it would seem that the shooting of Feliber Andres was attended by
treachery as she was inside the FX witnessing her husband's altercation, rst, with the
appellant then with the appellant's son, totally defenseless from the shot that came
suddenly from her left side. Public outrage over the death of Feliber was heightened by the
fact that she was then pregnant with her second child and her death left a new born baby
girl and a two year old boy motherless.
However, a meticulous review of the evidence prevents a conclusive nding of
treachery and any doubt must be resolved, like the fact of the commission of an offense, in
favor of the accused. The pictures indicate that Gonzalez red at the FX at an angle away
from Noel Andres and that Gonzalez was not aiming at anybody in particular. It is not
disputed that the appellant's car was directly behind the complainant's FX and that
Gonzalez who was then seated at the driver's seat alighted from his car, took a few steps
then red at the left side of the FX. Whether Noel Andres was seated at the driver's seat
inside his vehicle when Gonzalez red at the FX, as the prosecution asserts, or was
standing by the door of the driver's seat outside his vehicle, as the defense submits, it is
clear that the shot was red away from Noel Andres. The bullet hit Feliber near her temple
above the left eye indicating that she was facing left towards her husband when the shot
was red. 3 0 The direct hit on Feliber's head shows that the angle of the shot was indeed
away from Noel Andres. Even the eyewitness for the prosecution testi ed that had the
appellant intended to kill Noel Andres he could have shot directly at him, considering that
Noel Andres was just a few steps away from him 3 1 and that Noel Andres was visible from
the outside because his window was partially open. 3 2 The pictures show that the bullet
hole was on the third window on the left side of the Tamaraw FX 3 3 belying any attempt to
shoot Noel Andres. Two prosecution witnesses Ramos and Castro unequivocally declared
that "nothing or no one" prevented Gonzalez from shooting directly at Noel Andres and that
Gonzalez could have simply done so if he wanted to. But after alighting from his car,
Gonzalez took a few steps and shot at the left side window of the FX. 3 4
The fact that the appellant red his gun from behind the victim does not by itself
amount to treachery. There is no evidence on record that the appellant deliberately
positioned himself behind the victim to gain advantage over him when he red the shot. On
the contrary, the evidence before us reveals that the position of the appellant's car was not
of his own doing but it became so when Noel Andres overtook his car and cut off his path.
We note further, that the appellant did not act belligerently towards Noel Andres
even after the latter cut off the appellant's path. Andres stated in court that the appellant
did not alight from his car nor opened his window until he, Andres, tapped on it. 3 5 For his
part Gonzalez categorically stated in court that he did not point his gun nor threatened
Andres during their short spat. 3 6 Gonzalez, although he had his gun in his car, did not react
to Andres' cursing until the latter was having an altercation with the appellant's son, Dino.
Gonzalez claimed that he perceived that his son was in imminent danger. 3 7 Whether he
overreacted or he shot at Andres' vehicle out of rage over Andres' aggressive behavior, one
thing appears clear to us, that the shooting was not done in cold blood. It is undisputed
that the windows of the FX are heavily or darkly tinted so that a person outside would not
see if anybody was inside. 3 8 The pictures of the FX 3 9 on record con rm the testimonies
of both prosecution and defense witnesses that the other passengers of the FX were not
visible from the outside. Gonzalez admitted in court that Noel Andres mentioned that he
has passengers with him while he was shouting and cursing at Gonzalez but there is no
indication that Gonzalez had any opportunity to see the passengers when he red the shot.
The totality of the evidence on record fails to support a conclusion that Gonzalez
deliberately employed the mode of attack to gain undue advantage over the intended nor
the actual victim. Without any decisive evidence to the contrary, treachery cannot be
considered; thus the crime committed is homicide. 4 0
The trial court's nding that the loading of the gun, the cocking of the hammer and
nally the pulling of the trigger constitute a deliberate effort on the part of appellant to use
the gun as a means of a treacherous attack is patently erroneous. A single and continuous
attack cannot be divided into stages to make it appear that treachery was involved. 4 1 The
entire incident happened in a matter of minutes, as testi ed to by witnesses, and as noted
by the trial court. 4 2 It was error to our mind for the trial court to divide the assault in
stages to arrive at the conclusion that the mode of attack was consciously employed by
the appellant. Contrary to the nding of the trial court that the appellant prepared the gun
before getting out of his car, the appellant testi ed that he loaded his gun before he left
the house and that it was ready to re when he alighted his car. There was no time for him
to re ect on the mode of attack since he just picked up his gun and alighted from his car
and shot at the FX a few seconds after Dino and Noel Andres started shouting at each
other. 4 3 We note further that the trial court pointed out that from the fact that the
appellant prepared his gun to shoot, this was an indication of the deliberate employment
of the gun as a means to kill; i.e. that the use of an automatic pistol shows that the
shooting was attended by treachery. CcEHaI
We do not agree that the weapon used, by itself, is determinative of treachery,

unless it is shown, and it is not herein shown, that the appellant deliberately used the gun
to insure the commission of the crime and to render the unarmed victim defenseless. As
discussed above, the encounter between the appellant and the Andreses was a chance
encounter and the appellant's gun was in the glove compartment of his car even before he
left his house. The shooting was clearly a spur of the moment or impulsive decision made
by the appellant preceded by a heated altercation at the instance of the private
complainant. Jurisprudence teaches us that under the circumstances, treachery is not
obtaining. In the case of People vs. Valles, 4 4 the accused, a security guard, red his
Armalite and mortally wounded the victim when the latter approached the accused four
times insisting on entering the workplace wearing improper uniform, then cursed and
insulted and challenged the accused to a ght. We held that the shooting was not attended
by treachery as the shooting was preceded by a heated altercation at the instance of the
victim. It is to be noted that the kind of weapon used against an unarmed victim was not
taken into consideration in determining the attendance of treachery; it is the mode of
attack employed by the accused under the particular circumstances of a case that
determines its attendance in the commission of a crime. We nd that the prosecution has
not discharged its burden to show that the shooting was attended by treachery and we are
convinced that the crime committed for the death of Feliber Andres is homicide.
As regards the injuries sustained by the two children we nd that the crime
committed are two counts of slight physical injuries. The intent to kill determines whether
the crime committed is physical injuries or homicide and such intent is made manifest by
the acts of the accused which are undoubtedly intended to kill the victim. 4 5 In a case
wherein the accused did not know that a person was hiding behind a table who was hit by
a stray bullet causing super cial injuries requiring treatment for three days, the crime
committed is slight physical injuries. 4 6 In case of doubt as to the homicidal intent of the
accused, he should be convicted of the lesser offense of physical injuries. 4 7 We have
earlier pointed out that the intent to kill is absent in this case. It was also found that one
small metallic fragment was extracted from Kenneth below his left eye while another
fragment was extracted from Kevin "immediately below the level of his skin before the
cheek bone". 4 8 An examination of the testimonies of the attending physicians, showed
that the wounds sustained by the two children from the metallic fragments are not in
themselves fatal but may cause death if left untreated. One of the attending physician
testi ed in court that the fragments themselves "will not cause complication, it is the entry
of the fragment" or the open wound that is susceptible to infection. 4 9 Two small
fragments were no longer extracted from the face of Kevin Valdez, as the doctor deemed
it to be without danger of complication. 5 0 We note that the various sizes of the metallic
fragments were not established, at least to give an indication of the severity of the wounds
sustained. Both children were discharged after six days of treatment and there is no
showing that they required subsequent treatment or that they were immobilized for a
greater number of days by reason of the injuries sustained. Considering the nature and
location of their injuries and the number of days required for their treatment, we nd that
the crime committed for the injuries sustained by the children are two counts of slight
physical injuries under Art. 266 of the Revised Penal Code which imposes a penalty of
arresto menor or imprisonment for 1 to 30 days for injuries sustained that has
incapacitated the victim for one to nine days or required medical attendance for the same
period. For evident lack of criminal intent to kill the complainant, Noel Andres, as above
stated, the information for attempted homicide must fail.
The mitigating circumstances of voluntary surrender, passion and obfuscation,
incomplete defense of a relative and lack of intent to commit so grave a wrong, pleaded by
the defense, were not convincingly proved and none can be considered in the imposition of
penalties. The testimony of prosecution witness contradicts the appellant's pretense of
voluntary surrender. Witness Ramos testi ed that the appellant drove away towards the
gate of the memorial park while he was questioning him after the shooting and had not
Noel Andres and onlookers blocked his path the appellant could have ed the scene of the
crime. 5 1
The mitigating circumstance of passion and obfuscation is also not obtaining. For
this mitigating circumstance to be considered, it must be shown that (1) an unlawful act
su cient to produce passion and obfuscation was committed by the intended victim; (2)
that the crime was committed within a reasonable length of time from the commission of
the unlawful act that produced the obfuscation in the accused's mind; and that (3) "the
passion and obfuscation arouse from lawful sentiments and not from a spirit of
lawlessness or revenge." 5 2 Noel Andres' act of shouting at the appellant's son, who was
then a nurse and of legal age, is not su cient to produce passion and obfuscation as it is
claimed by the accused. Besides, the appellant's son, Dino was shouting back at Noel
Andres. It was not a case wherein the appellant's son appeared helpless and oppressed
that the appellant lost his reason and shot at the FX of Noel Andres. The same holds true
for the appellant's claim of provocation on the part of Noel Andres. Provocation must be
su cient to excite a person to commit the wrong committed and that the provocation
must be commensurate to the crime committed. The su ciency of provocation varies
according to the circumstances of the case. 5 3 The aggressive behavior of Noel Andres
towards the appellant and his son may be demeaning or humiliating but it is not su cient
provocation to shoot at the complainant's vehicle.
The plea for the appreciation of the mitigating circumstance of incomplete defense
of a relative is also unmeritorious since the act of Andres in cursing and shouting at the
appellant and his son do not amount to an unlawful aggression against them, Dino
Gonzalez. Finally, the plea for the appreciation of the mitigating circumstance of lack of
intent to commit so grave a wrong is likewise devoid of merit. This mitigating
circumstance is obtaining when there is a notable disparity between the means employed
by the accused to commit a wrong and the resulting crime committed. The intention of the
accused at the time of the commission of the crime is manifested from the weapon used,
the mode of attack employed and the injury sustained by the victim. 5 4 The appellant's use
of a gun, although not deliberately sought nor employed in the shooting, should have
reasonably placed the appellant on guard of the possible consequences of his act. The use
of a gun is sufficient to produce the resulting crimes committed.
For the death of Feliber Andres, and in the absence of any mitigating circumstance,
the appellant is hereby sentenced to an indeterminate sentence of 8 years and 1 day of
prision mayor, in its medium period, as minimum to 14 years 8 months and 1 day of
reclusion temporal in its medium period, as maximum. For each count of the slight
physical injuries committed against Kenneth Andres and Kevin Valdez, the appellant is
hereby sentenced to 20 days of arresto menor in its medium period.
The rules on the imposition of penalties for complex crimes under Art. 48 of the
Revised Penal Code are not applicable in this case. Art. 48 applies if a single act
constitutes two or more grave and less grave felonies or when an offense is a necessary
means of committing another; in such a case, the penalty for the most serious offense
shall be imposed in its maximum period. Art. 9 of the Revised Penal Code in relation to Art.
25 de nes grave felonies as those to which the law attaches the capital punishment or
a ictive penalties from reclusion perpetua to prision mayor; less grave felonies are those
to which the law attaches a penalty which in its maximum period falls under correctional
penalties; and light felonies are those punishable by arresto menor or ne not exceeding
two hundred pesos. Considering that the offenses committed by the act of the appellant
of ring a single shot are one count of homicide, a grave felony, and two counts of slight
physical injuries, a light felony, the rules on the imposition of penalties for complex crimes,
which requires two or more grave and/or less grave felonies, will not apply.
The pecuniary award granted by the trial court for actual damages was duly
established by the testimonies of the prosecution witnesses as supported by the original
receipts for hospitalization and other medical expenses presented in evidence by the
prosecution. The award for loss of earning capacity is likewise sustained for the reason
that while Feliber Andres was pregnant and was unemployed at the time of death, it is not
disputed that she was a registered nurse and had earning capacity. Noel Andres also
testi ed that he and his wife had plans to go back to Saudi Arabia to work after Feliber had
given birth to their second baby. While there is no evidence as to Feliber's actual income at
the time of her death, in view of her temporary separation from work because of her
pregnancy, we do not consider it reversible error for the trial court to peg her earning
capacity to that of the salary of a government nurse under the salary standardization law,
as a fair estimate or reasonable assessment of her earning capacity at the time of her
death. It would be grossly inequitous to deny her spouse and her minor children damages
for the support that they would have received, considering clear evidence on record that
she did have earning capacity at the time of her death.
The awards for moral damages for the death of Feliber Andres and for the injuries
sustained by the two children, which under the circumstances are reasonable, are likewise
sustained.
WHEREFORE, the decision of the trial court is hereby MODIFIED. The appellant is
hereby found guilty of homicide for the death of Feliber Andres and is sentenced to an
indeterminate sentence of 8 years and 1 day of prision mayor in its medium period, as
minimum, to 14 years 8 months and 1 day of reclusion temporal in its medium period, as
maximum. For each count of the slight physical injuries committed against Kenneth
Andres and Kevin Valdez, the appellant is hereby sentenced to 20 days of arresto menor.
The pecuniary awards granted by the trial court are hereby sustained.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Vitug, Mendoza, Quisumbing, Buena, Ynares-
Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.
Pardo, J., see dissenting opinion.
Puno, Kapunan, and Panganiban, JJ., joins the dissenting opinion of J. Pardo.
Separate Opinions
PARDO , J., dissenting :
We agree that there are indeed many unfortunate tragedies that have happened
because of the improvident use of a rearm to exacerbate a simple altercation over tra c.
One was the Rolito Go case. He shot in cold blood a college graduate of De la Salle
University 1 after their cars nearly collided in a one-way street, snu ng the young life of the
victim. He was convicted of murder. This case is another such senseless killing.
This case occurred on the eve of All Saints Day 1998, along the Garden of
Remembrance within the Loyola Memorial Park, Marikina City, Metro Manila. The trial court
convicted the accused of murder and sentenced him to death. The case is now before us
on automatic review. The majority would convict the accused only of homicide, not of
murder. I regret that I cannot give my concurrence.
In the afternoon of October 31, 1998, at about 2:30, both the family of complainant
Noel Andres and that of accused Inocencio Gonzales were on their way to the exit of the
Loyola Memorial Park, Marikina. The accused was driving a white Isuzu Esteem van with
his grandson and three housemaids, while the complainant was driving a maroon Toyota
FX with his pregnant wife Feliber Andres, his two year old son, Kenneth, his nephew Kevin
and his sister-in-law, Francar Valdez. At the intersection near the Garden of Remembrance,
the accused Gonzales was turning left toward the exit while the complainant Noel Andres
was headed straight along the road to the exit; their two vehicles almost collided. Noel
Andres was able to step timely on the brakes. The accused continued driving along his way
while Noel Andres drove behind accused's vehicle for sometime and cut him off when he
found the opportunity to do so. 2 Noel Andres got out of his vehicle and knocked on the
accused car's window. 3
According to complainant Noel Andres, he calmly told the accused to be careful with
his driving and informed the latter that he was with his family. To this, accused replied
"Accidents are accidents, what's your problem." Andres saw the accused turning red in
anger, so he decided to go back to his vehicle when he was blocked by accused's son who
said "Anong problema mo sa erpat ko." Feeling threatened, Andres immediately boarded
his vehicle, sat at the driver's seat, closed the door and partially opened the car window
just wide enough to talk back to accused's son. Suddenly, one of his passengers said
"binaril kami." He turned to his wife Feliber Andres and saw her bloodied and unconscious.
He turned around and saw his son Kenneth and nephew Kevin also wounded. Noel Andres
did not hear the shot. He got out of his vehicle to warn the accused not to ee. He then
took the wounded members of his family to the exit where there was an ambulance
standing by and the three injured were boarded in the ambulance to be brought to the Sta.
Monica Hospital and later transferred to the Quezon City Medical Center.
According to the accused, complainant Andres got out of his vehicle and repeatedly
cursed the accused while he stood beside the accused car's window. The accused stayed
inside his car and replied. "Pasensiya ka na hindi kita nakita, nasilaw ako. Aksidente lang."
The complainant would not stop shouting and cursing at him. Dino, the accused's son, who
rode in another vehicle arrived at the scene, confronted complainant Andres and the two
had an altercation. Complainant Andres remained outside his vehicle during the altercation
with Dino. When complainant Andres tried to reach for something inside his vehicle, Dino
froze where he stood. This prompted the accused to get his gun from the glove
compartment and feeling that his son was threatened, got out of his car ready to shoot the
complainant. When he saw that complainant Andres was not armed, he put down his gun.
At this point, accused's daughter Trisha arrived at the scene, walked past Andres and
pushed her father, the accused, away. She hugged him and in the process he red the gun
accidentally. The accused did not know that he hit somebody until the complainant's
sister-in-law, Francar Valdez got out of the vehicle carrying a bloodied small boy. The
accused claimed that he did not try to ee and even pharisaically told the complainant's
sister-in-law to bring the wounded to the hospital. Perhaps he meant the cemetery.
On November 4, 1998, the prosecution led with the Regional Trial Court, Marikina
City, an Information charging the accused with the complex crime of murder, double
frustrated murder and attempted murder, as follows:
"That on or about the 31st day of October 1998, in the City of Marikina,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously with intent to kill,
attack, assault and employ personal violence by means of treachery and abuse of
superior strength upon the person of Noel Andres y Tomas, by then and there
shooting him with a Glock cal. 9mm pistol but instead hitting one Feliber Andres y
Ordoño, on the left back portion of her head, thereby in icting upon her serious
and mortal wound which directly caused her death, as well as hitting John
Kenneth Andres y Ordoño and Kevin Valdez y Ordoño physical injuries which
ordinarily would have caused their death, thus performing all the acts of
execution which would have produced the crime of murder as a consequence, but
nevertheless did not produce it by reason of some cause or causes, independent
of their will, that is, the timely and able medical assistance rendered to John
Kenneth Andres y Ordoño and Kevin Valdez y Ordoño to their damage and
prejudice as well as to the damage and prejudice of the heirs of Feliber Andres y
Ordoño."
On arraignment, the accused pleaded "not guilty" to the charges. Trial ensued.
Feliber Andres, wife of complainant Noel Andres did not die instantaneously. She
lived to give birth to a baby girl 4 by caesarian section and died the following morning on
November 1, 1998. Cause of death was a gunshot wound on the head. 5
Doctors treated Kenneth and Kevin for extraction of metallic fragments on their
faces. They were discharged from the hospital six days later on November 6, 1998.
After due trial, on June 25, 1999, the trial court rendered a decision nding that the
killing was attended by the qualifying circumstance of treachery and holding the accused
guilty of the complex crime of murder for the killing of Feliber Andres and for two counts
of frustrated murder for the injuries sustained by Kenneth Andres and Kevin Valdez and
sentenced the accused to death. The dispositive portion of the decision reads as follows:
"WHEREFORE, foregoing premises considered, the accused Inocencio
Gonzales, Jr., y Esquivel is hereby found guilty beyond reasonable doubt of the
complex crime of Murder with Double Frustrated Murder and Attempted Murder
penalized under Art. 248, as amended by Republic Act No. 7659 in relation to
Article 48 of the Revised Penal Code and is sentenced to suffer the maximum
penalty of Death by lethal injection.
"The accused is further ordered to pay the following civil liabilities:
1. To the private complainant Noel Andres:

a) the amount of P50,000.00 as indemnity for the death of Feliber
Andres;
b) the amount of P3,363,663.60 as indemnity for the loss of earning
capacity of the deceased Feliber Andres;
c) the amount of P98,384.19 as funeral expenses;
d) the amount of P271,800.56 for the hospitalization expenses

incurred for the injuries sustained by the deceased Feliber Andres
and the amount of P23,622.58 representing the expenses for the
untimely delivery of the child Ma. Clarisse Andres;
e) the amount of P51,566.00 representing the hospitalization expenses

for the injuries sustained by the victim John Kenneth Andres;
f) the amount of P150,000.00 as moral damages suffered for the
untimely death of his wife Feliber Andres and for the injuries caused
to his son John Kenneth Andres;
g) the amount of P50,000.00 as and by way of attorney's fees and a
fee of P2,000.00 per appearance; and
h) the costs of the suit.
2. To the private complainant Nicasio Valdez:

a) the amount of P73,824.75 as actual damages for the injuries
sustained by the victim Kevin Valdez; and
b) the amount of P75,000.00 as and by way of moral damages.
"SO ORDERED."
In this review, the accused claimed that the shooting was purely accidental. This is
another of his false pretensions. He declared that he had no intention to shoot Noel Andres
much less his wife nor the children. He lost his balance when his daughter Trisha pushed
him backward to stop him from joining the confrontation between Dino and Noel Andres.
He tried to free his right hand holding the gun and it accidentally red hitting the rear
window of the left side of the Tamaraw FX. He claimed that he did not see the passengers
inside the vehicle at the time of the shooting. The accused asserted that the prosecution
failed to establish the attendance of treachery and without said qualifying circumstance,
the crime committed was homicide, not murder. We nd such pretenses to be utterly false
and bigoted. The evidence plainly shows that he directly aimed his pre-loaded pistol with
multi-missile bullets, released its safety trigger and deliberately pulled the trigger aiming
the gun at complainant Andres. What a poor shot he was. The bullet hit the innocent
pregnant wife of complainant. She did not die instantly, although she could have. Divine
intervention enabled her to give light to a baby girl born the next day.
The trial court held that the accused's act of loading the bullet into the chamber of
the gun and the cocking of the trigger of his automatic pistol constitute conscious and
deliberate effort to employ the gun as a means of committing the crime and resultantly,
treachery quali ed its commission. The accused testi ed that his gun was loaded before
he left the house and he got out of his car and shot at the rear window on the left side of
the complainant's vehicle. This testimony could not be true, unless the accused was an
instinctive killer who envisioned that he would use his gun to kill someone as he left his
house to go to the cemetery. The accused also argued that the gun he used was a semi-
automatic, not an automatic pistol which meant that the pistol used had no external safety
pin to be released and that the hammer need not be cocked. The pulling of the trigger,
intentional or not, would re the gun. This is another prevarication. Even a semi automatic
pistol has to be cocked to chamber load the same with a bullet and activate the trigger-
hammer. In the Glock semi-automatic 9mm pistol as the one accused used, the trigger has
a built-in safety lever and must be cocked and the trigger purposely pulled to fire the gun.
Accused argued that the trial court improperly gave credence to the testimonies of
prosecution witnesses Castro and Ramos. Their narration of the incident was rather
absurd and would show that they did not witness the actual shooting. Defense witnesses,
on the other hand, testi ed that Castro and Ramos arrived at the scene only after the
shooting.
As regards the injuries sustained by Kevin and Kenneth, the accused argued that
there was no intent to kill and that they stayed in the hospital only for six days, the crimes
committed were two counts of slight physical injuries. The trial court erred in awarding
damages and in admitting in evidence the bunch of receipts representing the medical
expenses incurred for the injuries sustained by the victims, without rst requiring the
prosecution to establish the authenticity of the receipts. The accused also pointed out that
the award for loss of earning capacity had no basis as the deceased was unemployed at
the time of the incident.
Finally, the accused submitted that the trial court erred in rejecting the mitigating
circumstances pleaded by the defense which attended the commission of the crime, i.e.,
lack of intent to commit so grave a wrong, passion and obfuscation, incomplete defense
of a relative and voluntary surrender. The accused asserted that the mitigation
circumstances were duly proven and supported by the evidence. The complainant Noel
Andres testi ed that he saw the accused getting red in anger after they had a heated
argument immediately prior to the shooting. These circumstances showed that the
accused was not in his proper state of mind at the time of the shooting. He was angered
by Andres' abusive language directed at him and he got out of his car with a loaded gun to
protect his son from a perceived danger. The accused claimed that his willingness to help
the injured and his voluntary surrender to the police should likewise be considered as
mitigating circumstances in the imposition of the penalties.
The Solicitor General agreed with the accused that the crime was not attended by
treachery, and hence, the killing of Feliber Andres was homicide, not murder. The Solicitor
General was of the view that the shooting was preceded by a heated argument and that
the victim was placed on guard that attack was imminent. There was no evidence that the
accused deliberately employed the means of attack to insure execution without danger of
retaliation from the victim. However, with respect to the injuries sustained by Kevin and
Kenneth, the Solicitor General disagreed with the accused that he was liable only for slight
physical injuries. The injuries sustained by both children were head injuries and could have
caused their death if not for the immediate medical attention given them. The number of
days they spent in the hospital is not determinative of the severity of the wounds. The
accused is liable for frustrated homicide for the injuries of the two small children because
he red the shot at Noel Andres that hit instead his pregnant wife and two small children.
He is liable for all the consequences of his unlawful act even if the crime committed is
different from that intended (aberratio ictus).
As regards the mitigating circumstances, the Solicitor General asserted that none
can be considered in favor of the accused. The accused did not voluntarily surrender to the
police and he even entertained the possibility of ight but his car was stuck in tra c along
the exit of the memorial park. His claim of incomplete defense of relative was belied by his
own admission that complainant Noel Andres did not have a gun and there was no
unlawful aggression on his part. There was no threat to his life or the life of his son at the
time of the shooting, no uncontrollable fear nor irresistible force that would mitigate the
commission of the offense.
The Solicitor General also agreed with the pecuniary awards the trial court granted.
He agreed that the late Feliber Andres was a 38-year old registered nurse at the time of the
killing. Although she was then not employed because she was pregnant, she still had
earning capacity and the trial court properly applied the salary of a government nurse
under the salary standardization scheme in the computation of damages for the loss of
earning capacity. The receipts presented in evidence by the prosecution to establish
hospitalization and other medical expenses incurred by the complainant by reason of the
injuries suffered by the victims were duly authenticated by the prosecution witnesses and
there is no dispute that they are exact copies of the original receipts presented in court.
In sum, the Solicitor General asserted that the accused red a single shot but
because of the multiple missile bullet that he used committed four offenses. He is liable
for the complex crime of homicide for the death of Feliber Andres, double frustrated
homicide against Kevin and Kenneth and attempted homicide against Noel Andres, and
that the penalty for the gravest offense, that is, homicide, shall be imposed, in its maximum
period, which is seventeen (17) years, four (4) months and one (1) day to twenty (20) years
of reclusion temporal.
We nd the appeal without merit. We do not agree with the views of the Solicitor
General.
Treachery under Article 14, paragraph 6 of the Revised Penal Code is de ned as the
persons which tend directly and specially to insure its execution without risk to the
offender arising from the defense which the intended victim might raise. 6 For treachery to
be appreciated, two elements must concur: (1) the employment of means of execution
that would insure the safety of the accused from retaliatory acts of the intended victim and
leaving the latter without an opportunity to defend himself or retaliate; and (2) the means
of execution employed were deliberately or consciously adopted by the offender. 7 The
means employed for the commission of the crime or the mode of attack must be shown
to have been consciously or deliberately adopted by the accused to insure the
consummation of the crime and at the same time eliminate or reduce the risk of retaliation
by the victim. 8 At the time of the shooting, the complainant was having a tiff with
accused's son. He knew that the complainant was not armed and there was no imminent
and grave danger to the life of his son. His conscious use of a rearm with pre-loaded
multiple missile bullets against a defenseless man who was totally unaware of the danger
to his life, as the events moved fast and he did not even hear the shot constitutes
treachery. Accused insured the success of the crime without risk to himself arising from
defense or retaliation. The complainant could not defend himself from such repower,
much less retaliate. He was with out any rearm. Even if the attack was frontal, it was
sudden and the victim was unarmed.
Whether or not the attack succeeds against its intended victim or injures another, or
whether the crime committed is graver than that intended is immaterial, as long as it is
shown that the attack is attended by treachery, the qualifying circumstance may still be
considered.
We can not agree with the accused or the view of the Solicitor General that the
shooting was not attended by treachery. Noel Andres, who had his pregnant wife and child
with him in his Tamaraw FX could have provoked the situation but was not an aggressor.
Initially he touted the accused for his failure to observe traffic rules.
However, after the altercation, complainant Andres walked toward his vehicle
because the altercation was over. On his way to the Tamaraw FX, he met another man, who
was the accused's son. It appears that Andres had another shouting match with accused's
son. Without ado, accused got his already pre-loaded pistol, alighted from his car and red
a single shot at complainant Noel Andres. He was a poor shot. The single bullet hit instead
Feliber Andres on the forehead near the temporal region above the left eye and the
splitting metallic shrapnels hit two innocent children on their faces, one on the cheek and
the other below the left eye. The intent to kill Noel Andres was evident when accused red
away at him. Accused knew that his son was not physically threatened. Whether Noel
Andres was seated at the driver's seat inside his vehicle when accused Gonzales red, as
the prosecution contends or was standing by the door of the driver's seat outside his
vehicle, as the defense submits, there is no question that the shot was directed at
complainant Noel Andres. However, as heretofore stated, the accused was a poor shot. He
made up by arming himself with a semi-automatic pistol loaded with multi-missile bullet
that splintered like a shotgun bullet. His son was not in danger. He knew that complainant
could easily be paci ed without resorting to shooting. Whether accused over-reacted or he
shot at Andres out of rage, one thing appears clear to us: the accused deliberately shot
complainant Noel Andres treacherously in cold blood. However, it was his wife who was
fatally hit in the head (aberratio ictus) and shrapnels hit two young innocent children. By an
act of God, she delivered a baby girl alive but gave her life to Him. The shooting was a
deliberate act of the accused. We are convinced that the shooting was attended by
treachery that quali ed the crime to murder aggravated by the use of a semi-automatic
pistol specially tted with murderous missile. The crime committed for the killing of
Feliber Andres was murder, qualified by treachery and aggravated by the use of firearm.
As regards the injuries suffered by the two children, we agree with the Solicitor
General that the crime committed was two counts of frustrated homicide. The intent to kill
was evident with the use of deadly weapon specially loaded with multi-missile bullets and
such intent was clearly made manifest by the acts of the accused undoubtedly intended to
kill the victims.
An examination of the testimonies of the attending physicians showed that the
wounds sustained by the two children from the metallic fragments may cause death if left
untreated. One of the attending physicians testi ed that the fragments themselves will not
cause complications; however, it is the entry of the fragments or the open wound that is
susceptible to infection. Two small fragments were no longer extracted from the face of
Kevin Valdez as the doctors deemed it to be without danger of complication, but this could
still be life threatening.
None of the mitigating circumstances pleaded by the accused was convincingly
proved to be attendant and none may be considered in the imposition of the penalties.
IN VIEW WHEREOF, I vote to a rm the decision of the trial Court nding accused
guilty of MURDER, quali ed by treachery and aggravated by the use of rearm for the
killing of Feliber Andres and sentencing him to reclusion perpetua, with the accessory
penalties of the law.
For each count of frustrated homicide committed against Kenneth Andres and Kevin
Valdez, the accused must be sentenced to the indeterminate penalty of ten (10) years and
one (1) day of prision mayor, as minimum, to seventeen (17) years and four (4) months of
reclusion temporal, as maximum; to indemnify the offended parties Kenneth Andres and
Kevin Valdez in the amount of P20,000.00 each.
Footnotes
1. Andres, tsn., March 16, 1999, pp. 14-18; Gonzales, tsn., May 25, 1999, pp. 15-22.
2. Andres, ibid., p. 26.
3. Amaba, tsn., May 11, 1999, p. 26.
4. Gonzalez, tsn., ibid., pp. 23-33; Quidic, tsn., March 22, 1999, pp. 8; 18-22.
5. named Ma. Clarisse.
6. Exh. "B", p. 2, Folder of Exhibits.
7. "Sec. 3. Judicial notice, when hearing necessary. — During the trial, the court, on its own
initiative, or on request of a party, may announce its intention to take judicial notice of
any matter and allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper court, on its own initiative or
on request of a party, may take judicial notice of any matter to be heard thereon if such
matter is decisive of a material issue in this case."
8. People vs. Cabodoc, 263 SCRA 187; People vs. Malabago, 265 SCRA 198.
9. Reyes, Revised Penal Code, vol. I, 1998 ed., pp. 409-410.
10. People vs. Caday, 2 SCRA 388; People vs. Ardisa, 55 SCRA 245; People vs. Genial, 228
SCRA 283.
11. Regalado, Criminal Law Conspectus, 2000 ed., p. 96; Aquino, Revised Penal Code, vol. II,
1997 ed., p. 573.
12. People vs. de Jesus, 118 SCRA 516; People vs. Magadattu, 124 SCRA 594.
13. People vs. Manlapaz, 55 SCRA 598; People vs. Valles, 267 SCRA 103; People vs. Real,
242 SCRA 671.
14. Sison vs. People, 250 SCRA 58, citing, People vs. Abapo, 239 SCRA 469.
15. U.S . vs. Mabug-at, 51 Phil. 967; People vs. Cagoco, 58 Phil 524.
16. Aquino, Revised Penal Code, 1997 ed., vol. 2, pp. 575-576.
17. People vs. Manalo, 148 SCRA 98.
18. Andres, tsn., March 16, 1999, pp. 16-19, Gonzales, tsn., May 25, 1999, pp. 17-23.
19. Ibid., p. 66.

20. Ramos, tsn., March 15, 1999, pp. 64-65; Castro, tsn., March 15, 1999, p. 134.
21. Gonzales, tsn., May 25, 1999, pp. 36-39.
22. Andres, ibid., p. 79.
23. Ibid., tsn., pp. 87-88.

24. Exhibit P and its submarkings, pp. 79-81, Folder of Exhibits.
25. Exh. "PP-5", p. 80, folder of Exhibits.
26. See also, Andres, tsn., March 16, 1999, pp. 32-33.
27. Exh. "PP", p. 79, Folder of Exhibits.
28. Exh. "PP-3", ibid.
29. Insp. Salamat, tsn., April 14, 1999, pp. 7-8.

30. Autopsy Report, supra.
31. Ramos, tsn., March 15, 1999, p. 23.
32. Andres, tsn., March 16, 1999, p. 85.
33. See Exh. "PP-7", p. 81, Folder of Exhibits.

34. Ramos, ibid., p. 122; Castro, tsn, March 15, 1999, pp. 176-177.
35. Andres, tsn, March 16, 1999, p. 26; Ramos, ibid., p. 13.
36. Andres, tsn., March 16, 1999, p. 76; Gonzales, tsn., ibid., pp. 39-41.
37. Gonzales, ibid., p. 43.
38. Ramos, tsn., p. 71; Castro, tsn., pp. 174-175.
39. Exh. "PP to PP-2", p. 79, Folder of Exhibits.

40. Aquino, Revised Penal Code, 1997 ed., vol. 1, p. 401.
41. Aquino, ibid., 1997 ed., vol 1, p. 426.
42. Ramos, tsn., March 15, 1999, p. 77; Amaba, tsn., May 11, 1999, p. 39; RTC Decision, p.
82.
43. Ramos, ibid.

44. 267 SCRA 103.
45. People vs. Listerio, G.R No. 122099, July 5, 2000.

46. People vs. Violin, 266 SCRA 224.
47. Aquino, Revised Penal Code, vol. 2, 1997 ed., pp. 627-628.
48. Dr. Lyndon Ong, tsn., February 23, 1999, pp. 73-77, 81; Dr. Antonio Chua, tsn., February
23, 1999, pp. 33-45; 59-60.
49. Dr. Chua, tsn., February 23, 1999, pp. 61-64.
50. Ibid., p. 60.

51. Ramos, tsn., March 15, 1999, pp. 36-37; 45-46.
52. Reyes, Revised Penal Code, 1998 ed., vol 1, p. 272.
53. Reyes, ibid., p. 261.

54. Reyes, ibid., p. 254-255.
PARDO, J., dissenting:
1. Rolito Go v. Court of Appeals, 206 SCRA 138 [1992].
2. TSN, March 16, 1999, pp. 14-18; TSN, ibid., pp. 20-23.
3. Ibid., p. 26.
4. Named Ma. Clarisse.
5. Exhibit "B", Autopsy Report, Folder of Exhibits, p. 2.

6. People v. Basco, 318 SCRA 615 [1999]; People v. Mangahas, 311 SCRA 384 [1999];
People v. Mallari, 310 SCRA 621 [1999]; People v. Sumalpon, 284 SCRA 464 [1998].
7. People v. Cabodoc, 263 SCRA 187 [1999]; People v. Malabago, 265 SCRA 198 [1990];
People v. Villablanca, 316 SCRA 13 [1999]; People v. Marcelino, 316 SCRA 104 [1999];
People v. Bernas, 309 SCRA 741 [1999]; People v. Penaflorida, 313 SCRA 563 [1999];
People v. Bautista, 312 SCRA 475 [1999]; People v. Molina, 312 SCRA 130 [1999]; People
v. Bumer, 319 SCRA 539 [1999].
8. Regalado, Criminal Law Conspectus, 2000 ed., p. 96; Aquino, Revised Penal Code, Vol. II,
1997 ed., p. 573.

EN BANC
[G.R. No. L-32040. October 25, 1977.]
THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. PEDRO

PAGAL y MARCELINO and JOSE TORCELINO y TORAZO , defendants-
appellants.
Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin, V. Bautista

and Solicitor Leonardo I. Cruz for appellee.
Ciriaco Lopez, Jr. for appellants.
DECISION
CONCEPCION , J : p
In Criminal Case No. CCC-VI-5 (70) of the Circuit Criminal Court of Manila, the
accused, Pedro Pagal y Marcelino and Jose Torcelino y Torazo, were charged with the
crime of robbery with homicide, committed as follows:
"That on or about December 26, 1969, in the City of Manila, Philippines, the
said accused, conspiring and confederating together and mutually helping each
other, did then and there wilfully, unlawfully and feloniously, with intent to gain,
and by means of violence, take away from the person of one Gau Guan, cash
amounting to P1,281.00, Philippine currency, to the damage and prejudice of the
said Gau Guan in the said sum of P1,281.00; that on the occasion of the said
robbery and for the purpose of enabling them to take, steal and carry away the
said amount of P1,281.00, the herein accused, in pursuance of their conspiracy,
did then and there wilfully, unlawfully and feloniously, with intent to kill and
taking advantage of their superior strength, treacherously attack, assault and use
personal violence upon the said Gau Guan, by then and there stabbing him with
an icepick and clubbing him with an iron pipe on different parts of his body,
thereby in icting upon him mortal wounds which were the direct and immediate
cause of his death thereafter.
"Contrary to law, and with the generic aggravating circumstances of (1)

nighttime purposely sought to better accomplish their criminal design; (2) evident
premeditation; (3) in disregard of the respect due the offended party; and (4) with
abuse of confidence, the accused being then employees of the offended party." 1
When the case was called for arraignment, counsel de o cio for the accused
informed said court of their intention to enter a plea of guilty provided that they be
allowed afterwards to prove the mitigating circumstances of su cient provocation or
threat on the part of the offended party immediately preceding the act, and that of
having acted upon an impulse so powerful as to produce passion and obfuscation. 2
Thereafter, the trial judge propounded to them the questions and the accused gave the
answers quoted hereunder; cdll
"Court:
Your lawyer here has manifested your desire to enter a plea of guilty to
the offense charged, robbery with homicide. Do you know that by
agreeing to that manifestation of your lawyer, you will be admitting
the commission of the crime charged?
"Accused:
We agree, your honor, to what our lawyer said, but we would like to
explain something.
"Court:
Your lawyer here has stated that you will still prove mitigating
circumstances. Is that what you like to explain?
"Accused:
Yes, your honor.
"Court:
If that is the case, I will give you a chance.
"Accused:
Yes, your honor.
"Court:
Do you know that by agreeing to that manifestation, you will be

admitting the commission of the crime charged, robbery with
homicide?
"Accused:
Yes, your honor.
"Court:
And for which this court might sentence you to death or life
imprisonment?
"Accused:
Yes, your honor.
"Court:
And notwithstanding what is explained to you, you still insist in your

desire to enter a plea of guilty to the offense charged?
"Accused:
Yes, your honor.
"Court:
Q Notwithstanding again the warning of the court that the maximum

penalty impossable is death?
A Yes, your honor.

"Court:
Arraign the accused.

(At this stage, both accused were arraigned and both pleaded guilty to the offense
charged)." 3
Thereafter, the accused presented evidence to prove the mitigating
circumstances of su cient provocation on the part of the victim immediately
preceding the act and acting upon an impulse so powerful as to produce passion and
obfuscation. After the accused had rested their case, the prosecution presented the
statements 4 of the accused, and other pertinent documents regarding the
investigation of the case. 5
After the trial, the court a quo rendered its decision, the dispositive portion of
which reads as follows: cdll
"WHEREFORE, both accused are hereby found guilty beyond reasonable

doubt as principals of the crime of robbery with homicide and there being proven
the aggravating circumstances of nighttime, evident premeditation and disregard
of respect due the offended party offset only by the mitigating circumstance of
their plea of guilty, sentences each one of them to DEATH, to jointly and severally
indemnify the heirs of the deceased the following: the sum of P12,000.00 for the
death of the deceased Gau Guan; P15,000.00 for moral damages; P15,000.00 for
exemplary damages, all amounts to hear interest until they shall have been fully
paid; the sum of P1,281.00 representing the amount taken from the victim; and to
pay proportionately the costs." 6
The case is now before this Court for mandatory review on account of the death
penalty imposed upon the accused.
The appellant Pedro Pagal contends that the trial court erred in convicting him of
the crime of robbery with homicide instead of declaring him liable only for his individual
acts, claiming that the record is bereft of any proof or evidence that he and his co-
appellant Jose Torcelino conspired to commit the crime of robbery with homicide.
The appellant's position is not well-taken. His denial of conspiracy with his co-
appellant Jose Torcelino cannot be given credence in view of the clear and convincing
confession of his guilt in his statement 7 signed by him before the police investigators
several hours after the commission of the crime. Besides, when he pleaded guilty to the
charge, he is deemed to have admitted all the material facts alleged in the information.
8 By his plea, the appellant admitted not only the commission of the crime but also the
circumstances surrounding its commission, including the allegations of conspiracy. A
plea of guilty when formally entered on arraignment, is su cient to sustain a conviction
even for a capital offense without the introduction of further evidence, 9 the requisite
proofs having been supplied by the accused himself. 1 0 We nd, therefore, that the trial
court did not commit any error in convicting the appellant Pedro Pagal of the crime of
robbery with homicide.
The appellants further assail the trial court in not appreciating in their favor the
mitigating circumstances of sufficient provocation, and passion or obfuscation.
Again, the appellants' contention is devoid of merit. Firstly, since the alleged
provocation which caused the obfuscation of the appellants arose from the same
incident, that is, the alleged maltreatment and/or ill treatment of the appellants by the
deceased, these two mitigating circumstances cannot be considered as two distinct
and separate circumstances but should be treated as one. 1 1 Secondly, the
circumstance of passion and obfuscation cannot be mitigating in a crime which — as in
the case at bar — is planned and calmly meditated before its execution. Thus, in People
vs. Daos, 1 2 a case of robbery with homicide, this Court rejected the claim of the
appellants therein that passion and obfuscation should have been estimated in their
favor, because the death of the victim therein took place on the occasion of a robbery,
which, before its execution, had been planned and calmly meditated by the appellants.
Thirdly, the maltreatment that appellants claim the victim to have committed against
them occurred much earlier than the date of the commission of the crime. Provocation
in order to be a mitigating circumstance must be su cient and immediately preceding
the act. We hold that the trial curt did not commit any error in not appreciating the said
mitigating circumstances in favor of the appellants.
Finally, the appellants claim that the trial court erred in considering the
aggravating circumstances of nighttime, evident premeditation, and disregard of the
respect due the offended party on account of his rank and age.
Although the trial court correctly considered the aggravating circumstance of
nocturnity because the same was purposely and deliberately sought by the appellants
to facilitate the commission of the crime, nevertheless, We disagree with its conclusion
that evident premeditation and disregard of the respect due the offended party were
present in the commission of the crime. cdphil
Evident premeditation is inherent in the crime of robbery. 1 3 However, in the

crime of robbery with homicide, if there is evident premeditation to kill besides stealing,
it is considered as an aggravating circumstance. 1 4 In other words, evident
premeditation will only be aggravating in a complex crime of robbery with homicide if it
is proved that the plan is not only to rob, but also to kill. 1 5 In the case at bar, a perusal
of the written statements 1 6 of the appellants before the police investigators show that
then original plan was only to rob, and that, they killed the deceased only when the latter
refused to open the "kaha de yero", and fought with them. The trial court, therefore,
erred in taking into consideration the aggravating circumstance of evident
premeditation.
The aggravating circumstance that the crime was committed with insult or in
disregard of the respect due the offended party on account of his rank, age or sex may
be taken into account only in crimes against persons or honor, when in the commission
of the crime there is some insult or disrespect shown to rank, age, or sex. 1 7 It is not
proper to consider this aggravating circumstance in crimes against property. 1 8
Robbery with homicide is primarily a crime against property and not against persons.
Homicide is a mere incident of the robbery, the latter being the main purpose and
object of the criminal. 1 9 The trial court erred in taking into account this aggravating
circumstance.
It results that in the commission of the crime, there is only generic aggravating
circumstance, i.e., nighttime or nocturnity.
Robbery with homicide is punished by reclusion perpetua to death. 2 0 Since the
aggravating circumstance of nighttime is offset by the mitigating circumstance of plea
of guilty, the lesser penalty, which is reclusion perpetua, should be imposed upon the
appellants. 2 1
ACCORDINGLY, the judgment of the trial court is modi ed, and the appellants
Pedro Pagal y Marcelino and Jose Torcelino y Torazo are hereby sentenced to suffer
each the penalty of reclusion perpetua. In all other respects, the judgment of the trial
court is affirmed. With costs against the appellants.
SO ORDERED.
Castro, C.J., Fernando, Aquino, Martin, Santos, Fernandez and Guerrero, JJ.,
concur.
Teehankee and Makasiar, JJ., concur in the result.
Antonio, J., took no part.
Separate Opinions
BARREDO, J., concurring:
Concurs. While I am not fully satis ed that appellants were entirely aware of the
meaning of their plea of guilty, I nd that the rebuttal evidence of the prosecution
proved their guilt, which evidence the appellants did not dispute. Cdpr
MUÑOZ PALMA, J., concurring:
Concurs. I would state however that the rulings in People vs. Parete and People
vs. Santos, et al., cited in page 7 of the Opinion must be taken in conjunction with recent
jurisprudence that extra solicitous care is required in the admission of a plea of guilty
and that the taking of testimony and other evidence notwithstanding a plea of guilty is
the prudent and proper course to follow by trial judges. (People vs. Villafuerte, March
28, 1974, citing numerous cases; People vs. Hondolero, August 25, 1976). These
safeguards appear to have been taken in the instant case. prcd
Footnotes
1. p. 2, Record.
2. p. 3, t.s.n., January 8, 1970.
3. pp. 3-4, t.s.n., January 8, 1970.
4. Exhibits "A" & "B", pp. 4, 7, Record.

5. Exhibits "C", "D", "E", "F" and "F1", pp. 9, 10, 11, 14, 15, Record.
6. pp. 26-27, Record.

7. Exhibit "B", supra.
8. People vs. Roldan, L-22030, May 29, 1968, 23 SCRA 907; People vs. Arpa, L-26789, April
25, 1969, 29 SCRA 1037.
9. People vs. Perete, 1 SCRA 1290.
10. People vs. Santos and Vicente, 103 Phil. 40.

11. People vs. Reyes, L-33154, February 27, 1976, 69 SCRA 474.
12. 60 Phil. 143.

13. U.S. vs. Blanco, 10 Phil. 298; People vs. Daos, 60 Phil. 143; People vs. Pulido, 85 Phil.
695; People vs. Valeriano, 90 Phil. 15.
14. People vs. Nabual, L-127758, July 14, 1969, 28 SCRA 747.
15. People vs. Atencio, L-22513, Jan. 17, 1968, 22 SCRA 88.
16. Exhibits "A" and "B", pp. 4, 7, Record.
17. Albert, Revised Penal Code, 1946 Ed., p. 109; Reyes, Revised Penal Code, 1974 Ed., Vol. I,
p. 297.
18. Aquino, Revised Penal Code, 1976 Ed., Vol. I, p. 286, citing U.S. vs. Samonte, 8 Phil. 286.
19. Ibid, Vol. III, 1976 Ed., p. 1434, citing U.S. vs. Ipil, 27 Phil. 530, 535.
20. Article 294, par. 1, Revised Penal Code.
21. Article 63, (4) and (2), Revised Penal Code.

SECOND DIVISION
[G.R. No. 182750. January 20, 2009.]
RODEL URBANO , petitioner, vs . PEOPLE OF THE PHILIPPINES ,

respondent.
DECISION
VELASCO, JR. , J : p
This petition for review under Rule 45 seeks to reverse and set aside the Decision
1 dated January 25, 2008 of the Court of Appeals (CA) in CA-G.R. CR No. 25371 which
a rmed with modi cation the April 30, 2001 Decision 2 of the Regional Trial Court
(RTC), Branch 39 in Lingayen, Pangasinan in Criminal Case No. L-5028. The RTC found
petitioner Rodel Urbano guilty beyond reasonable doubt of the crime of Homicide.
The Facts
In an Information led before the RTC, petitioner was charged with Homicide,
committed as follows:
That on or about the 28th of September 1993 in the evening, in Barangay
Poblacion, Municipality of Lingayen, Province of Pangasinan, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, with
intent to kill, did then and there willfully, unlawfully and feloniously attack,
assault, hit and maul Brigido Tomelden, in icting upon him mortal injuries and as
borne out from the autopsy report the following findings: ISCcAT
EXTERNAL FINDINGS:
A Softened portion of the scalp over (R) occipito-temporal area about 5

inches above and posterior to the (R) ear.
B Clotted blood over the (R) occipito-temporal area.
C No lacerations noted.
INTERNAL FINDINGS:
A On opening the skull there is oozing of dark colored blood from the
brain substances.
B More darked blood vessels at the (L) side of the brain.

CAUSE OF DEATH:
Cardio-respiratory arrest secondary to cerebral concussion with

resultant cerebral hemorrhage due to mauling incident. CHDTEA
Which directly caused his death, to the damage and prejudice of the heirs
of the said Brigido Tomelden.
CONTRARY to Article 249 of the Revised Penal Code.

Petitioner, when arraigned, pleaded not guilty to the charge. Following the parties'
waiver of pre-trial, trial on the merits then ensued.
As summarized in the decision subject of review, the prosecution's evidence
established the following facts:
On September 28, 1993, at around 8:00 p.m., the victim Brigido Tomelden and
petitioner were at the compound of the Lingayen Water District (LIWAD) in Lingayen,
Pangasinan, having just arrived from a picnic in the nearby town of Bugallon,
Pangasinan, where, with some other co-workers, they drunk beer in a restaurant. While
inside the compound, the two had a heated altercation in the course of which Tomelden
hurled insulting remarks at petitioner. Reacting, petitioner asked why Tomelden, when
drunk, has the penchant of insulting petitioner.acSECT
The exchange of words led to an exchange of blows. Cooler heads succeeded in

breaking up the ght, but only for a brief moment as the protagonists refused to be
paci ed and continued throwing st blows at each other. Then petitioner delivered a
"lucky punch", as described by eyewitness Orje Salazar, on Tomelden's face, which
made Tomelden topple down. Tomelden was on the verge of hitting his head on the
ground had their companions not caught him and prevented the fall. The blow, however,
caused Tomelden's nose to bleed and rendered him unconscious.
Petitioner and his other co-workers brought Tomelden to the o ce of the LIWAD
general manager where he spent the night. He remained in the compound the following
day, September 29, 1993. Upon arriving home at around 6:00 p.m. of that day,
Tomelden informed his wife, Rosario, of the ght the previous night and of his having
been rendered unconscious. He complained of pain in his nape, head, and ear which
impelled Rosario to immediately bring him to the Lingayen Community Hospital where
Dr. Daisy Arellano examined him and treated his lacerated left index nger, contusions,
and hematoma at the right cerebrum.
On October 2 and 7, 1993, Tomelden went back to the hospital complaining of
dizziness, headache, and other pains. The attending doctors observed the patient to be
in a state of drowsiness and frequent vomiting. On October 8, 1993, Rosario brought
Tomelden to the Sison Memorial Provincial Hospital in Dagupan City, where the
attending physician, Dr. Ramon Ramos, diagnosed Tomelden suffering from "brain
injury, secondary to mauling to consider cerebral hemorrhage". 3 DHTCaI
Tomelden was con ned in the provincial hospital until 3:00 p.m. of October 10,
1993, and, due to nancial constraints, was thereafter discharged despite signs
negating physical condition improvement. Upon reaching their house, however,
Tomelden again complained of extreme head pain, prompting his wife to bring him
back to the Lingayen Community Hospital where Dr. Arellano again attended to him.
This time, things turned for the worst, the doctor noting that Tomelden appeared to be
semi-conscious, sleepy, uncooperative, and not responding to any stimulant. Tomelden
died at 9:00 p.m. of that day due, per Dr. Arellano, to "cardio-respiratory arrest
secondary to cerebral concussion with resultant cerebral hemorrhage due to mauling
incident".
The defense presented petitioner who denied having any intention to kill,
asserting that hypertension, for which Tomelden was receiving treatment, was the
cause of the latter's death.
The Ruling of the RTC
On April 30, 2001, the RTC rendered judgment nding petitioner guilty as
charged. The fallo of the RTC's decision reads:
WHEREFORE, the prosecution having established beyond reasonable doubt
the guilt of the accused of the crime of HOMICIDE as de ned and penalized under
Art. 249 of the Revised Penal Code, this Court in the absence of any modifying
circumstances, hereby sentences said accused to suffer the indeterminate prison
term of eight (8) years and one (1) day of Prision Mayor as minimum to
seventeen (17) years and four (4) months of Reclusion Temporal as maximum
and to indemnify the legal heirs of the victim in the amount of PHP50,000.00,
plus cost of the suit. cCAIDS
The period of preventive imprisonment suffered by the accused shall be

credited in full in the service of his sentence in accordance with Art. 29 of the
Revised Penal Code. 4
Therefrom, petitioner appealed to the CA, his recourse docketed as CA-G.R. CR

No. 25371.
The Ruling of the CA
On January 25, 2008, the CA rendered a decision, a rming the conviction of
petitioner, but awarding moral damages to the heirs of Tomelden, disposing as follows:
WHEREFORE, in the light of the foregoing, the appeal of the accused-
appellant is DISMISSED. The decision appealed from is AFFIRMED with
MODIFICATION that an award of P50,000.00 moral damages is GRANTED.
Remand of the records should immediately follow nality for the

consequent execution of the decision. 5
The appellate court held that the commission by petitioner of the crime of
homicide, as de ned and penalized under Article 249 6 of the Revised Penal Code
(RPC), had been proved beyond moral certainty of doubt, pointing to the lucky punch as
the proximate cause of Tomelden's hospitalization and ultimately his death. And like the
RTC, the CA found no qualifying circumstance to increase or lower the penalty.
Following the denial of petitioner's motion for reconsideration, per the CA
Resolution 7 of April 24, 2008, he interposed this petition.
The Issues
On essentially the same issues raised before the CA, petitioner now urges the
Court to set aside the appealed decision, or at least modify it, maintaining that the
appellate court: aESHDA
I. . . . erred in a rming the decision of the [RTC] nding [him] guilty

beyond reasonable doubt of the crime charged.
II. . . . erred in not appreciating the mitigating circumstances of
su cient provocation on the part of the victim and lack of intent to commit so
grave a wrong in favor of the petitioner. 8
The Court's Ruling

The petition is partly meritorious.
Homicide Duly Proved
It is petitioner's threshold posture that the stic injury Tomelden sustained was
not "the main underlying cause of his death". 9 In this regard, petitioner draws attention
to the fact that the st ght in question happened on September 28, 1993. Tomelden,
however, died only on October 10, 1993 or 12 days thereafter and that, during the
intervening days, particularly September 29, 1993, the deceased regularly reported for
work. Moreover, petitioner avers that days prior to the fateful incident of September 28,
1993, Tomelden failed to come to work as he was suffering from malignant
hypertension and that this circumstance greatly engenders doubt as to the proximate
cause of the victim's death. Petitioner, thus, contends that he could only be adjudged
guilty of physical injuries. 1 0 ESCTaA
We are not persuaded.

The prosecution witness, Salazar, testi ed about petitioner's lucky punch hitting
Tomelden right smack on the face. And even if Tomelden's head did not hit the ground
as his co-workers averted that actuality, that punch gave him a bleeding nose and
rendered him unconscious right after the September 28, 1993 ght. From then on,
Tomelden was in and out of the hospital complaining of headache, among other pains,
until his demise on October 10, 1993, or 12 days after the blow that made Tomelden
unconscious.
Signi cantly, Dr. Arellano testi ed conducting an autopsy on the body of
Tomelden and stressed that the "softened portion of the scalp over (R) occipito-
temporal area about 5 inches above and posterior to the (R) ear" of the victim could
have been caused by a st blow. She also opined that the st blow which landed on
Tomelden's head could have shaken his brain which caused the cerebral concussion;
and that the cause of the victim's death was "cardio-respiratory arrest secondary to
cerebral concussion with resultant cerebral hemorrhage due to mauling incident". SDITAC
The combined effects of the testimonies of Salazar and Dr. Arellano, buttressed
by that of Rosario who related about her husband's post September 28, 1993 severe
head pain, clearly establish beyond cavil the cause of Tomelden's death and who was
liable for it.
The CA observed aptly:
It was through the direct accounts of the prosecution witnesses of the
events that transpired during the sticuff incident . . . more speci cally the
landing of the "lucky punch" on the face of [Tomelden], taken together with the
result of the medical examinations and autopsy report which described the death
of the victim as "cardio-respiratory arrest secondary to cerebral concussion with
resultant cerebral hemorrhage due to mauling incident" that we are convinced that
the "lucky punch" was the proximate cause of [Tomelden's] death. The
prosecution had satisfactorily proven that it was only after the incident that
transpired on September 28, 1993 that the victim was hospitalized on several
occasions until he expired, twelve days later . . . . It is moreover of no
consequence whether the victim was able to report for work during the intervening
days . . . . TEAICc
We nd no reason to depart from the doctrinal rule that great weight is

accorded the factual ndings of the trial court, particularly with respect to the
ascertainment of the credibility of witnesses. There was absence of any ill motive
on the part of . . . Salazar who in fact testi ed that he was a friend of both
[petitioner] and [Tomelden]; more so on the part of the attending physicians. 1 1 . . .
Petitioner's suggestion that Tomelden succumbed to heart ailment and/or that

his death was the result of his malignant hypertension is untenable, given that the post-
mortem report yields no positive indication that he died from such malady. EIAHcC
Mitigating Circumstances Present

Petitioner next contends that the mitigating circumstances of no intention to
commit so grave a wrong and su cient provocation on the part of the victim ought to
be appreciated in petitioner's favor.
On this score, we agree with petitioner.
Paragraphs 3 and 4 of Art. 13, RPC provide as follows:
Art. 13. Mitigating circumstances. — The following are mitigating
circumstances:
xxx xxx xxx

3. That the offender had no intention to commit so grave a wrong as
that committed.
4. That su cient provocation or threat on the part of the offended
party immediately preceded the act.
When the law speaks of provocation either as a mitigating circumstance or as an

essential element of self-defense, the reference is to an unjust or improper conduct of
the offended party capable of exciting, inciting, or irritating anyone; 1 2 it is not enough
that the provocative act be unreasonable or annoying; 1 3 the provocation must be
su cient to excite one to commit the wrongful act 1 4 and should immediately precede
the act. 1 5 This third requisite of self-defense is present: (1) when no provocation at all
was given to the aggressor; (2) when, even if provocation was given, it was not
su cient; (3) when even if the provocation was su cient, it was not given by the
person defending himself; or (4) when even if a provocation was given by the person
defending himself, it was not proximate and immediate to the act of aggression. 1 6 EHSIcT
In the instant case, Tomelden's insulting remarks directed at petitioner and

uttered immediately before the st ght constituted su cient provocation. This is not
to mention other irritating statements made by the deceased while they were having
beer in Bugallon. Petitioner was the one provoked and challenged to a fist fight.
Petitioner's unrebutted testimony on the events immediately preceding the
fisticuff and earlier dovetails with the testimony of Salazar.
In gist, petitioner testi ed being, in the afternoon of September 28, 1993, in the
nearby town of Bugallon for a picnic. He was with Tomelden and several others,
including Dominador Navarro, Chairperson of LIWAD. At a restaurant in Bugallon, the
group ordered goat's meat and drank beer. When it was time to depart, Navarro asked
petitioner to inform Tomelden, then seated in another table, to prepare to leave. DHATcE
When so informed, Tomelden insulted petitioner, telling the latter he had no

business stopping him from further drinking as he was paying for his share of the bill.
Chastised, petitioner returned to his table to report to Navarro. At that time, petitioner
saw that Tomelden had already consumed 17 bottles of beer. In all, the group stayed at
the picnic place for three and a half hours before returning to the LIWAD.
Upon reaching the LIWAD compound, Tomelden allegedly slapped and hurled
insults at him, calling him "sipsip " just to maintain his employment as Navarro's tricycle
driver. Tomelden allegedly then delivered several st and kick blows at petitioner, a
couple of which hit him despite his evasive actions. Petitioner maintained that he only
boxed the victim in retaliation, landing that lucky punch in the course of parrying the
latter's blows.
The following testimony of Salazar attests to the provocative acts of Tomelden
and to his being the aggressor:
PROSECUTOR CHIONG
Q After you heard from the accused those remarks, what if any did the victim
replied if any?
WITNESS
A They exchanged angry words, sir.

Q What were these words?
A Rodel Urbano said, "When you're already drunk, you keep on insulting
me ". CEDScA
Q And what was the reply if any?

A 'Akina tua lanti".
PROS. CHIONG
Q Who said that?

WITNESS
A It was Brigido Tomelden, sir.
Q And what transpired next?
A After that they exchange words, sir. "If you like we will have a st ght" he
said.
Q Who said that?
A Brigido Tomelden said.

Q At that time, were you already inside the compound of the LIWAD? AEDCHc
A Yes, sir.
Q After the victim allegedly told the accused, "If you want a st ght", what
transpired next?
A Rodel Urbano said, "if it is a fist fight we fight". 1 7
Q And when you were already in the compound of LIWAD O ce, Brigido
Tomelden was challenging the accused for a fist fight ?
A Yes, sir.
Q And the accused refused to accept the challenge ?
A Yes because Mr. Brigido Tomelden is very much bigger than Mr.
Rodel Urbano. He is stouter than the accused .
Q But finally the fist fight took place? STaAcC

A Yes, sir. 1 8
PROS. CHIONG
Q When the victim and this accused had this ght, st ght, they exchanged
blows, but there was this lucky punch that hit the victim because the victim
fall down, is that correct?
A When I stop pacifying them . . ., I saw Biring the late Brigido Tomelden,
he was much aggressive than the accused , sir.
Q You mean that although it was the victim who was more aggressive than
the accused here, he also [threw] punches but sometime some of his
punches most of which did not hit the victim?
A He tried to parry the blows of the late Brigido Tomelden, sir.
Q Because he tried to parry the blow of the Brigido Tomelden, when the
accused throw punches, the punch was directed to the victim but most of
them did not hit the victim, is that what you saw?
A Yes, sir. 1 9 (Emphasis added.)
It is abundantly clear from the above transcript that the provocation came from
Tomelden. In fact, petitioner, being very much smaller in height and heft, had the good
sense of trying to avoid a ght. But as events turned out, a sticuff still ensued,
suddenly ending when petitioner's lucky punch found its mark. In People v. Macaso, 2 0 a
case where the accused police o cer shot and killed a motorist for repeatedly taunting
him with de ant words, the Court appreciated the mitigating circumstance of su cient
provocation or threat on the part of the offended party immediately preceding the
shooting. The Court had the same attitude in Navarro v. Court of Appeals, 2 1 a case also
involving a policeman who killed a man after the latter challenged him to a ght. Hence,
there is no rhyme or reason why the same mitigating circumstance should not be
considered in favor of petitioner.
Moreover, the mitigating circumstance that petitioner had no intention to commit
so grave a wrong as that committed should also be appreciated in his favor. While
intent to kill may be presumed from the fact of the death of the victim, this mitigating
factor may still be considered when attendant facts and circumstances so warrant, as
in the instant case. Consider: Petitioner tried to avoid the ght, being very much smaller
than Tomelden. He tried to parry the blows of Tomelden, albeit he was able, during the
scu e, to connect a lucky punch that ended the ght. And lest it be overlooked,
petitioner helped carry his unconscious co-worker to the o ce of the LIWAD's general
manager. Surely, such gesture cannot reasonably be expected from, and would be
unbecoming of, one intending to commit so grave a wrong as killing the victim. A bare-
knuckle ght as a means to parry the challenge issued by Tomelden was
commensurate to the potential violence petitioner was facing. It was just unfortunate
that Tomelden died from that lucky punch, an eventuality that could have possibly been
averted had he had the nancial means to get the proper medical attention. Thus, it is
clear that the mitigating circumstance of "no intention to commit so grave a wrong as
that committed" must also be appreciated in favor of petitioner while nding him guilty
of homicide. That petitioner landed a lucky punch at Tomelden's face while their co-
workers were trying to separate them is a compelling indicium that he never intended
so grave a wrong as to kill the victim. TIDaCE

Withal, with no aggravating circumstance and two mitigating circumstances
appreciable in favor of petitioner, we apply par. 5 of Art. 64, RPC, which pertinently
provides:
Art. 64. Rules for the application of penalties which contain three
periods. — In cases in which the penalties prescribed by law contain three periods,
whether it be a single divisible penalty or composed of three different penalties,
each one of which forms a period in accordance with the provisions of Articles 76
and 77, the courts shall observe for the application of the penalty the following
rules, according to whether there are or are no mitigating or aggravating
circumstances:
xxx xxx xxx
5. When there are two or more mitigating circumstances and no

aggravating circumstances are present, the court shall impose the penalty next
lower to that prescribed by law, in the period that it may deem applicable,
according to the number and nature of such circumstances. ISCaDH
The prescribed penalty for homicide under Art. 249 of the RPC is reclusion
temporal or from 12 years and one day to 20 years. With the appreciation of two
mitigating circumstances of no intention to commit so grave a wrong as that
committed and of su cient provocation from the victim, and the application of par. 5
of Art. 64, RPC, the imposable penalty would, thus, be the next lower penalty prescribed
for homicide and this should be prision mayor or from six years and one day to 12
years. Consequently, with the application of the Indeterminate Sentence Law, petitioner
ought to be incarcerated from prision correccional as minimum and prision mayor as
maximum. In view of the circumstances of the case, considering that the petitioner
never meant or intended to kill the victim, a prison term of eight (8) years and one (1)
day of prision mayor as maximum period is proper while the period of two (2) years
and four (4) months of prision correccional as minimum period is reasonable.
We find no reason to modify the award of civil indemnity and moral damages.
WHEREFORE, the CA Decision dated January 25, 2008 in CA-G.R. CR No. 25371
is, in the light of the presence and the appreciation of two mitigating circumstances in
favor of petitioner, hereby MODIFIED by decreasing the term of imprisonment. As thus
modi ed, petitioner Rodel Urbano is hereby sentenced to serve an indeterminate prison
term of from two (2) years and four (4) months of prision correccional, as minimum, to
eight (8) years and one (1) day of prision mayor, as maximum, with whatever
imprisonment he has already served fully credited in the service of this sentence. The
rest of the judgment is hereby AFFIRMED. ESCDHA
No pronouncement as to costs.
SO ORDERED.
Quisumbing, Carpio-Morales, Tinga and Brion, JJ., concur.
Footnotes
1. Rollo, pp. 86-101. Penned by Associate Justice Apolinario D. Bruselas, Jr. and concurred
in by Associate Justices Bienvenido L. Reyes and Monina Arevalo Zenarosa.
2. Id. at 51-60. Penned by Judge Dionisio C. Sison.
3. Id. at 89.
4. Supra note 2, at 59-60.
5. Supra note 1, at 100.
6. Art. 249. Homicide. — Any person who, not falling within the provisions of Art. 246, shall
kill another without the attendance of any of the circumstances enumerated in the next
preceding article, shall be deemed guilty of homicide and be punished by reclusion
temporal.
7. Rollo, p. 110.
8. Id. at 17.
9. Id. at 18.
10. Id. at 19.
11. Supra note 1, at 96-97.
12. Navarro v. Court of Appeals, G.R. No. 121087, August 26, 1999, 313 SCRA 153, 166;
citing Pepito v. CA, G.R. No. 119942, July 8, 1999, 310 SCRA 128.
13. Cano v. People, G.R. No. 155258, October 7, 2003, 413 SCRA 92, 105; citing 1 Aquino,
REVISED PENAL CODE 116 (1997).
14. Navarro, supra; citing People v. Nabora, 73 Phil. 434 (1941).
15. Id.; citing People v. Paga, No. L-32040, October 25, 1977, 79 SCRA 570.
16. Cano, supra note 13; citing 1 L.B. Reyes, THE REVISED PENAL CODE 179-180 (14th
revised ed., 1998). CacISA
17. TSN, November 25, 1998, pp. 6-7.
18. TSN, December 1, 1998, p. 4.

19. TSN, January 31, 2000, pp. 21-22.
20. No. L-30489, June 30, 1975, 64 SCRA 659.
21. Supra note 12.

EN BANC
[G.R. No. L-32042. February 13, 1975.]
THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. ALBERTO

BENITO Y RESTUBOG , defendant-appellant.
SYNOPSIS
Upon his plea of guilty to the charge of murder, appellant was sentenced to
death. Thereupon, the case was elevated to the Supreme Court on mandatory review of
the death penalty. In this review, appellant insists that the mitigating circumstances of
voluntary surrender, immediate vindication of a grave offense, and su cient
provocation or threat be credited in his favor. He, likewise, assails the ruling of the trial
court appreciating the aggravating circumstances of disregard of rank and evident
premeditation against him. The Supreme Court ruled that the appellant is entitled only
to the mitigating circumstances of (1) plea of guilty and (2) voluntary surrender,
however, the said circumstances are offset by the aggravating circumstances of
evident premeditation and disregard of respect due to the deceased. Accordingly, it
modi ed the death sentence of the trial court and instead imposed the penalty for
murder in its medium period.
SYLLABUS
1. MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER; ACTS

INDICATE OF INTENT TO SURRENDER. — Where immediately after the shooting, the
accused having all the opportunity to escape, did not do so but instead called up the
police and when the latter arrived to investigate, told them that he would help in the
case as he knew the suspect and his motive, the mitigating circumstances of voluntary
surrender must be credited in his favor. The fact that he did not immediately tell the
police that he was the assassin, perhaps because he was momentarily shocked by the
enormity of his crime, would not negate the appreciation of such mitigating
circumstances, since when he was brought to the police station immediately thereafter
as a possible witness, he con ned to the investigators that he was "voluntarily
surrendering" and "also surrendering the fatal gun used in the shooting of the victim."
2. ID.; VINDICATION OF GRAVE OFFENSE; WHEN AN INSULTING REMARK IS
NOT A "GRAVE OFFENSE". — The victim's remark that the Civil Service Commission, of
which the accused was a clerk, is a hangout of thieves cannot be considered a grave
offense against the latter, since it was general in nature and not speci cally directed to
him. If the accused felt alluded to by such remark, that was his own individual reaction
thereto. At most, said remark might be considered a mere provocation and not a grave
offense which might have impelled the accused to commit a crime in immediate
retaliation.
3. ID.; ID.; JURIDICAL REASON FOR APPRECIATING SAME. — The juridical
reason for appreciating the mitigating circumstances of immediate vindication of grave
offense is the implied recognition by the law of the weakness of human nature such
that an ordinary human being if su ciently provoked would immediately retaliate in the
unchristian spirit of vindictive retribution.
4. ID.; PROVOCATION OR THREAT; NOT CONSIDERED SUFFICIENT IF NOT
ACCOMPANIED BY OVER ACTS. — Where the alleged provocative or threatening
statement of the deceased on the night preceding the day of the crime was not
accompanied by any overt act nor did anything more happen during that night, the same
cannot be considered as su cient provocation or threat. The provocation or threat did
not immediately precede the shooting which occurred the following day. The accused's
act of shooting the victim the next day was a deliberate act of vengeance and not the
natural reaction of a human being to ward off a serious threat or to immediately
retaliate when provoked.
5. ID.; ID.; ELEMENT. — Provocation of threat to continue a mitigating
circumstance must, in the language of the law, be "su cient", that is, adequate to excite
the person to commit the wrong and must accordingly be proportionate to its gravity
and must also immediately precede the act.
6. AGGRAVATING CIRCUMSTANCES; DISREGARD OF RANK; VICTIM WAS
SUPERIOR OFFICER OF ACCUSED. — The accused assails the aggravating
circumstances of disregard of rank considered by the lower court against him on the
ground that at the time of the commission of the murder, he was no longer connected
with the Civil Service Commission. There is no question, however, that when the
accused, a clerk in the Civil Service Commission, saw and talked with the deceased, an
Assistant Chief of the Personal Transaction of that O ce, Regarding his administrative
case, accused made it very obvious that he recognized the deceased as his superior
o cer. The mere fact that his dismissal form o ce was made immediately executory
was of no moment since he appealed that decision and was later completely
exonerated by the Civil Service Board of Appeals.
7. ID.; ID.; MAY BE CONSIDERED EVEN IF NOT ALLEGED IN INFORMATION. —
The aggravating circumstances of disregard of rank may be considered against the
accused even if not alleged in the information, since it is a mere genetic aggravating
circumstances, and not a qualifying circumstances that would change the nature or
affect the gravity of the crime committed, but one which is capable of being proven and
taken into consideration even if it was not alleged in the information.
8. ID.; EVIDENT PREMEDITATION; ACTS SHOWING STRONG MOTIVE OF
ACCUSED TO RETALIATE. — Where the accused's own declarations narrates fully the
several attempts to talk with the deceased; how he was rebuffed in those attempts and
even insulted, and that he was jobless after having been dismissed from the o ce on
allegedly fabricated charges made by the deceased, which admissions provided a
strong motive for him to plan on how to retaliate against the victim by taking the law
into his hands, the aggravating circumstance of evident premeditation should be
appreciated against him.
9. CRIMINAL PROCEDURE; UNCONDITIONAL PLEA OF GUILTY;
PROSECUTION'S PRESENTATION OF EVIDENCE ON CRIMINAL PARTICIPATION OF
ACCUSED; EFFECT. — The fact that the prosecution was allowed to adduce evidence to
show the criminal participation of the accused after his unconditional plea of guilty to
the charge of murder would not bar the court to consider the aggravating
circumstances of evident premeditation alleged in the information. The accused was
fully aware of the consequences of his unconditional plea of guilty to the offense of
matter of murder after it was explained to him, and the serious implication and meaning
of the aggravating circumstance of evident premeditation expressly mentioned in the
information.
10. MURDER; PENALTY; MITIGATING CIRCUMSTANCES OFFSET BY
AGGRAVATING CIRCUMSTANCES. — Where the mitigating circumstances of the plea of
guilty and voluntary surrender are offset by the aggravating circumstances of evident
premeditation of respect due to the deceased, the penalty for the crime of murder, of
which the accused is held guilty, should be imposed in its medium period.
DECISION
ESGUERRA , J : p
This is a mandatory review of the judgment of the Circuit Criminal Court of Manila
in Criminal Case No. CCC-VI-609, entitled "People of the Philippines vs. Alberto Benito y
Restubog," imposing upon the accused, Alberto Benito y Restubog, upon his plea of
guilty to the charge of murder, the penalty of "death; to indemnify the heirs of the
deceased as follows: P12,000.00 for the death of the deceased; P20,000.00 as
indemnity for loss of earning capacity of the deceased who was then only 36 years of
age at the time of his death and earning P7,597.80 per annum; P20,000.00 for
exemplary damages; P25,000.00 for moral damages, all amounts to bear interest until
they shall have been fully paid; and to pay the costs."
The issues raised by the accused revolve around the alleged errors of the lower
court in considering the mitigating and aggravating circumstances attendant to the
commission of the crime to determine the proper penalty to be imposed on the
accused.
It is not controverted that at about 5:30 p.m. of December 12, 1969, the victim
Pedro Moncayo, Jr., Assistant Chief of Personnel Transaction and Acting Chief of the
Administrative Division of the Civil Service Commission, while driving his car on P.
Paredes street in front of the O ce of the Civil Service Commission was followed by
the accused, and when the car was about to turn at the intersection of P. Paredes and
Lepanto Streets, Manila, the accused shot him eight times with a .22 caliber revolver,
causing the victim's death. The accused was charged with murder and when the case
was called for trial, through counsel de parte, he manifested his desire to withdraw his
previous plea of not guilty and substitute it with a plea of guilty without prejudice to
proving mitigating circumstances. The prosecution manifested that it would controvert
whatever mitigating circumstances the accused would prove and also prove other
aggravating circumstances. The trial court repeatedly explained to the accused the
nature and consequences of his plea of guilty to the offense charged and warned him
that the maximum penalty imposable is death. Notwithstanding the explanation and
warning of the trial court, the accused, assisted by his counsel de parte upon being re-
arraigned, entered a plea of guilty. The accused presented evidence to prove mitigating
circumstances and the prosecution subsequently introduced evidence to prove
aggravating circumstances not mentioned in the information. The Court sentenced the
accused to death after nding him guilty as principal in the crime of murder quali ed by
treachery, with the aggravating circumstances of evident premeditation and disregard
of the respect due to the offended party on account of his rank, offset by the mitigating
circumstance of accused's plea of guilty.
I
On the rst assignment of error regarding the failure of the lower Court to
consider the mitigating circumstance of voluntary surrender, both the accused and the
Solicitor General are agreed that the said mitigating circumstance should be
considered in his favor. The intention of the accused to surrender could be clearly
discerned from the fact that immediately after the shooting, the accused having all the
opportunity to escape, did not do so but instead called up the Manila Police
Department. When the policemen went to the scene of the crime to investigate, the
accused voluntarily approached them and, without revealing his identity, told them that
he would help in connection with the case as he knew the suspect as well as the latter's
motive. While it may be true that the accused did not immediately tell the police that he
was the assassin, perhaps because he was momentarily shocked by the enormity of his
crime, nevertheless when brought to the police station immediately thereafter as a
possible witness (accused was with the police investigators all that time), he con ded
to the investigators that he was "voluntarily surrendering" and "also surrendering the
fatal gun used in the shooting of the victim" (p. 9, t.s.n. December 26, 1969). We fully
subscribe to appellee's observation that all the aforementioned acts of the accused
were strongly indicative of his intent or desire to surrender voluntarily to the authorities.
The accused must be credited with the mitigating circumstance of voluntary surrender.
II
It is the contention of the accused that the criminal act of murder was
committed in the immediate vindication of a grave offense done by the victim against
the accused and, therefore, this mitigating circumstance must be credited in his favor.
The supposed grave offense done by the victim was an alleged remark made in the
presence of the accused at about 11:00 a.m. of December 12, 1969, that the Civil
Service Commission is a hangout of thieves. The accused felt alluded to because he
was facing then criminal and administrative charges on several counts involving his
honesty and integrity.
There is merit in appellee's argument that said victim's remark even if actually
uttered in the presence of the accused, cannot be considered a grave offense against
the latter. The remark itself was general in nature and not speci cally directed to the
accused. If he felt alluded to by a remark which he personally considered insulting to
him, that was his own individual reaction thereto. Other people in the vicinity who might
have heard the remark could not possibly know that the victim was insulting the
accused unless they were aware of the background of the criminal and administrative
charges involving moral turpitude pending against the accused. At most, said remark
might be considered a mere provocation and not a grave offense which might have
impelled the accused to commit a crime in immediate retaliation. As the provocation
was not su cient and did not immediately precede the act, it may not be considered as
a mitigating circumstance.
In this case, however, the provocation was the remark uttered at 11:00 a.m. of
December 12, 1969, while the crime of murder was committed by the accused at about
5:30 p.m. of the same day, giving him several hours to re ect and hold his temper.
Stated otherwise, the act of killing did not immediately or proximately follow the
supposed su ciently insulting and provocative remark. The juridical reason for
appreciating this mitigating circumstance is the implied recognition by the law of the
weakness of human nature such that an ordinary human being if su ciently provoked
would immediately retaliate in the unchristian spirit of vindictive retribution. But the
circumstances of this case are such that the act of murder committed by the accused
could not reasonably be attributed to an immediate or proximate retaliatory action on
his part to vindicate what personally appeared to him as su cient provocation in the
form of an insulting remark allegedly uttered by the victim. The failure of the accused to
immediately react to the supposed provocative insulting remark might even be taken
as his ignoring it altogether, or considering it unimportant at the moment he heard the
remark. In other words, the remark was inadequate to stir or drive the accused to
violence at the time it was uttered and he had more than su cient time to suppress his
emotion over said remark if he ever did resent it. The trial Court did not commit any
error when it rejected the aforementioned incident as a basis for crediting a mitigating
circumstance in favor of the accused.
III
The accused also claims that the lower Court should have considered the
mitigating circumstance that su cient provocation or threat on the part of the
deceased immediately preceded the act because of the alleged statement of the
deceased in Tagalog uttered at about 7:00 p.m. on the night of December 11, 1969
(night preceding the day of the crime), to wit, "Umalis ka na nga diyan baka may
mangyari pa sa iyo at baka ipayari kita dito" (Get out of there, because something might
happen to you and because I might have you nished here). That statement of the
deceased was supposed to have been uttered in the presence of other people almost
twenty four (24) hours before the crime was committed. It was not accompanied by
any overt act against accused and nothing more happened during that night, so that the
accused by that utterance could not have felt su ciently provoked or threatened so as
to immediately react in his defense or retaliate by committing a crime. The provocation
or threat, did not immediately precede the shooting. In other words, the accused had
almost a day to mull over the alleged threat or provocation before he reacted by
shooting the victim. The inevitable conclusion is that the accused did not feel
su ciently threatened or provoked by the alleged utterance of the victim at the time it
was uttered, or within a reasonable time thereafter, and when he shot the victim the
next day, it was a deliberate act of vengeance and not the natural reaction of a human
being to ward off a serious threat or to immediately retaliate when provoked.
We agree with appellee's contention that "provocation or threat to constitute a
mitigating circumstance, must, in the language of the law, be "su cient", that is,
adequate to excite the person to commit the wrong and must accordingly be
proportionate to its gravity and must also immediately precede the act."
The lower Court correctly rejected the claim of the accused to this mitigating
circumstance.
IV
The generic aggravating circumstance of disregard of rank considered by the
lower Court against the accused is being assailed on the ground that at the time of the
commission of the murder, the accused was no longer connected with the Civil Service
Commission as the decision in the administrative case against him ordering his
dismissal from the service became effective February 16, 1966.
There is no question, however, that accused was a clerk in the Civil Service
Commission and the victim was Assistant Chief of the Personnel Transaction of that
O ce. When the accused saw and talked with the deceased regarding the former's
administrative case that proved to be the motive for the murder by his own admission,
accused made it very obvious that he recognized the deceased as his superior o cer.
The mere fact that the dismissal of the accused from o ce was made immediately
executory was of no moment since he appealed that decision and the case was still
pending and, by his own allegation, he was later completely exonerated by the Civil
Service Board of Appeals in its decision of February 17, 1971.
It may be true that this aggravating circumstance was considered against the
accused even if it was not alleged in the information, but this is a generic aggravating
circumstance, and not a qualifying circumstance that would change the nature or affect
the gravity of the crime committed, but one which is capable of being proven and taken
into consideration even if it was not alleged in the information. The lower Court in
considering this generic aggravating circumstance against the accused did not violate
his constitutional right to be informed of the nature and cause of the accusation
against him for murder. This aggravating circumstance was correctly considered
against the accused.
V
We cannot see Our way clear to the argument of the accused that the
aggravating circumstance of evident premeditation, although included in the
information, should not be considered against the accused because although he
pleaded guilty to the charge unconditionally, the prosecution sought and was allowed
to adduce evidence to show the criminal participation of appellant in the commission
of the offense and the background of the crime imputed to him, and the evidence
submitted by the prosecution failed to establish the elements of the aggravating
circumstance of evident premeditation. It is further argued that the prosecution is
deemed to have thereby waived the effect of the unconditional plea of guilty by the
accused in so far as the aggravating circumstance of evident premeditation is
concerned.
What upsets the entire argument of the accused is the fact that the prosecution
successfully proved the existence of evident premeditation because Exhibit "A", his own
declaration, narrates fully the several attempts of the accused to talk with the
deceased; how he was rebuffed in those attempts and even insulted, and that he was
jobless after having been dismissed from the o ce on allegedly fabricated charges
made by the deceased. All of these admissions provided a strong motive for the
accused to plan on how to retaliate against the victim by taking the law into his hands.
We cannot disregard the fact that the accused unconditionally pleaded guilty to
the offense charged after the lower Court speci cally called his attention to the
aggravating circumstance of evident premeditation before he was re-arraigned (p. 5,
t.s.n. December 26, 1969), and after the Fiscal had rejected his counsel's proposal to
delete this aggravating circumstance from the information (p. 3, t.s.n. December 26,
1969). The accused was fully aware of the consequences of his unconditional plea of
guilty to the offense of murder after it was explained to him, and the serious implication
and meaning of the aggravating circumstance of evident premeditation expressly
mentioned in the information.
The admission of the accused that he had with him a .22 caliber revolver on the
afternoon of December 12, 1969; that when he saw the victim driving his car on P.
Paredes Street he followed him up to the corner of P. Paredes and Lepanto Streets
where he shot the victim eight times suddenly and without any warning, speaks
eloquently of his plan, generated by an all-consuming hatred, to kill the person whom he
considered responsible for all his misfortunes.
The lower Court did not, therefore, err in considering the aggravating
circumstance of evident premeditation against the appellant.

For all the foregoing, the guilt of the appellant has been established beyond
reasonable doubt, with two mitigating circumstances in his favor, that of plea of guilty
and voluntary surrender. However these are offset by the aggravating circumstances of
evident premeditation and disregard of respect due to the deceased. The crime of
murder being punishable with reclusion temporal in its maximum period to death (Art.
248, Revised Penal Code), the penalty, pursuant to Article 248 in relation to Article 64 of
the Revised Penal Code, should be, as it is hereby, imposed in its medium period, or
reclusion perpetua.
The penalty of death imposed by the trial court is hereby modi ed and reduced,
as above indicated, to reclusion perpetua with accessories of the law.
Costs against the accused.
SO ORDERED.
Fernando, Makasiar, Antonio, Fernandez and Aquino, JJ ., concur.
Makalintal, C . J ., is on official leave.
Castro and Teehankee, JJ ., in the result.
Barredo, J .: I am of the opinion that the appellant should be credited with the
mitigating circumstance of vindication of a grave offense, hence the penalty should be
correspondingly lowered. In all other respects, I concur.
Muñoz Palma J .: I concur except for No. IV on the aggravating circumstance of
"disregard of rank" to which I disagree.

SECOND DIVISION
[G.R. No. 149372. September 11, 2007.]
RICARDO BACABAC , petitioner, vs . PEOPLE OF THE PHILIPPINES ,

respondent.
DECISION
CARPIO-MORALES , J : p
In the evening of December 23, 1990, Hernani Quidato (the victim) was at a
dance hall in Purok 4, San Joaquin, Iloilo City in the company of Eduardo Selibio
(Eduardo) and Melchor Selibio (Melchor). And so were Jonathan Bacabac (Jonathan)
and Edzel Talanquines (Edzel). 1
Jonathan and Edzel left the dance hall. Not long after, the victim and his
companions also left and on their way home, they encountered Jonathan and Edzel. It
appears that the two groups then and there figured in a misunderstanding.
On his way home, Jesus Del n Rosadio (Jesus), who was also at the dance hall,
noticed a commotion. He soon saw that Melchor was "hugging" Edzel, and later "tying"
Jonathan "with his hands". Still later, he saw the victim hit Edzel with a "stick." 2 He thus
told the victim and his companions that Edzel is the son of Councilor Jose Talanquines,
Jr. (Jose), whereupon Eduardo 3 told him (Jesus) to go away for they might shoot him.
Jesus thus left and proceeded to Edzel's residence to report to his father what he had
witnessed. In the meantime, Edzel and Jonathan managed to flee.
The victim and his companions thereafter headed for home in the course of
which they met Pat. Ricardo Bacabac (herein petitioner), together with Edzel and
Jonathan who are his nephews, and Edzel's father, Jose, his mother, and two sisters at
the corner of M.H. Del Pilar and Sto. Domingo Streets. Petitioner and Jose were
carrying M-16 armalites, while Jonathan and Edzel were carrying a piece of wood and a
revolver, respectively.
Jesus thereupon pointed to the victim and his companions as the ones who had
manhandled Jonathan and Edzel. The victim apologized, explaining that he and his
companions mistook Jonathan and Edzel for other persons. Jesus blurted out,
however, "You are just bragging that you are brave. You are only bullying small children."
4 Petitioner, at that instant, red his armalite into the air, while Jose red his armalite
("as if spraying his ri e from right to left") at the victim and Eduardo, even hitting
Jonathan in the thigh as he (Jonathan) "was on the move to strike [the victim] with a
piece of wood." Eduardo fell. And so did the victim who was in a kneeling position, and
as he was raising his hands in surrender, Jose shot him again.
Meanwhile, Melchor escaped. 5
The victim, Eduardo, and Jonathan were brought to the hospital. The victim was
pronounced dead on arrival. Eduardo died two hours later.
Post-mortem examination showed that the victim sustained two bullet wounds in
the thoraco-abdominal regions and one bullet wound in the extremities, and that he died
due to "maceration of the internal organs due to bullet wounds." 6 Eduardo sustained
two bullet wounds in the thoraco-abdominal region, and died of "hemorrhage due to
gunshot wounds." 7
Two Informations for Murder were led with the Regional Trial Court (RTC) of
Iloilo City against Jose, Edzel, Jonathan, Jesus, and the herein petitioner. The
accusatory portion of the rst Information, docketed as Criminal Case No. 35783,
reads:
That on or about the 23rd day of December, 1990, in the Municipality of
San Joaquin, Province of Ilo-ilo, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and
mutually helping one another to better realize their purpose, armed with two (2)
M16 [a]rmalite [r]i es and one (1) nickel-plated revolver of unknown make and
caliber, with deliberate intent and decided purpose to kill, with treachery and
evident premeditation and without any justi able cause or motive, did then and
there willfully, unlawfully and feloniously assault, attack and shoot one HERNANI
QUIDATO with the rearms they were then provided, in icting upon the latter
gunshot wounds on the different parts of his body which caused the immediate
and instantaneous death of said Hernani Quidato.
CONTRARY TO LAW. 8
The accusatory portion of the second Information, docketed as Criminal Case

No. 35784, reads:
That on or about the 23rd day of December, 1990, in the Municipality of
San Joaquin, Province of Iloilo, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and
mutually helping one another to better realize their purpose, armed with two (2)
M16 [a]rmalite [r]i es and one (1) nickel-plated revolver of unknown make and
caliber, with deliberate intent and decided purpose to kill, with treachery and
evident premeditation and without any justi able cause or motive, did then and
willfully, unlawfully and feloniously assault, attack and shoot one EDUARDO
SELIBIO with the rearms they were then provided in icting upon the latter
gunshot wounds on the different parts of his body which caused the immediate
and instantaneous death of said Eduardo Selibio.
CONTRARY TO LAW. 9
The cases were jointly tried.

By Decision of April 30, 1993, Branch 39 of the Iloilo RTC, nding the presence of
conspiracy among petitioner and his co-accused, 1 0 convicted them of murder quali ed
by treachery. 1 1 The dispositive portion of the decision of the trial court reads:
WHEREFORE, premises considered, judgment is hereby rendered as
follows:
In Criminal Case No. 35783, all the accused, namely; Jose Talanquines, Jr.,
Edzel Talanquines, Jonathan Bacabac, Pat. Ricardo Bacabac, and Jesus Del n
Rosadio are hereby found guilty beyond reasonable doubt of the crime of murder
and there being no aggravating circumstances with one mitigating circumstance
[immediate vindication for Jose and Jesus; voluntary surrender for Pat. Ricardo
Bacabac 1 2 ], and applying the indeterminate sentence law, accused Jose
Talanquines, Jr., Ricardo Bacabac and Jesus Del n Rosadio are hereby
sentenced each to suffer imprisonment for a period of 10 years and 1 day, as
minimum, to 17 years, 4 months and 1 day as maximum; while accused Edzel
Talanquines and Jonathan Bacabac who are entitled to the privileged mitigating
circumstance of minority and the ordinary mitigating circumstance of immediate
vindication of a grave offense are hereby sentenced each to suffer imprisonment
for a period of four (4) years, 2 months, and 1 day, as minimum, to 10 years and 1
day as maximum. All the accused are ordered to pay jointly and severally the
heirs of the deceased Hernani Quidato, the amount of P50,000.00 for his wrongful
death; P20,000.00 for moral damages; P10,000.00 for attorneys fees; and the
costs of the suit. (Underscoring supplied)
In Criminal Case No. 35784, judgment is hereby rendered as follows:
All the accused, namely; Jose Talanquines, Jr., Edzel Talanquines,

Jonathan Bacabac, Pat. Ricardo Bacabac and Jesus Del n Rosadio are hereby
found guilty of the crime of Murder and there being no aggravating circumstance
with one mitigating circumstance, accused Jose Talanquines, Jr., Ricardo
Bacabac and Jesus Del n Rosadio are hereby sentenced each to suffer
imprisonment for a period of 10 years and 1 day as minimum, to 17 years, 4
months and 1 day, as maximum; while accused Edzel Talanquines and Jonathan
Bacabac who are entitled to the privileged mitigating circumstance of minority
and the ordinary mitigating circumstance of immediate vindication of a grave
offense, are hereby sentenced to suffer imprisonment for a period of 4 years, 2
months and 1 day, as minimum to 10 years and 1 day as maximum. All the
accused are ordered to pay jointly and severally the heirs of the deceased
Eduardo Selibio, the amount of P50,000.00 for his wrongful death; P20,000.00 for
moral damages; P10,000.00 for attorney's fees; and the costs of the suit.
(Underscoring supplied)
Accused Jesus Del n Rosadio, who is detained, is hereby credited with the
number of days he spent under detention, if he is qualified.
SO ORDERED. 1 3
While petitioner and his co-accused led a Notice of Appeal 1 4 which was given
due course, 1 5 only petitioner led a Brief, albeit beyond the extensions granted to him,
drawing the Court of Appeals to dismiss his appeal. 1 6 The conviction of petitioner's co-
accused had thus become final and executory.
Petitioner's Motion for Reconsideration 1 7 of the dismissal of his appeal having
been denied, 1 8 he led a Petition for Review with this Court which, by Resolution of
October 22, 1997, directed the Court of Appeals to reinstate petitioner's appeal. 1 9
By Decision 2 0 of June 28, 1999, the Court of Appeals a rmed the trial court's
decision. Entry of nal judgment was made by the Court of Appeals on July 22, 1999. 2 1
The trial court thereafter issued a February 7, 2000 Order directing the issuance
of warrants for the arrest of the accused. 2 2 Except petitioner, all were arrested. 2 3
On February 24, 2000, petitioner led before the appellate court a Petition for
Relief from Judgment, Order, and/or Denial of Appeal 2 4 which was granted, 2 5 hence,
the Entry of Judgment issued by the appellate court on July 22, 1999 was set aside. He
thereafter led a Motion for Reconsideration 2 6 of the appellate court's June 28, 1999
Decision which was denied by Resolution of August 8, 2001; 2 7 hence, the present
Petition for Review on Certiorari. 2 8
Petitioner assails the Court of Appeals' decision as follows:
First: Contrary to its conclusion on the basis of the facts of the case,
Petitioner may not be deemed to be in conspiracy with the other Accused.
Second: Contrary to its conclusion, there was no treachery.

Third: Contrary to its conclusion, Petitioner, assuming in gratis argumenti
the correctness of the pronouncement of guilt, should have been credited with the
mitigating circumstance of immediate vindication of a grave offense , in
the same manner that the other Accused were so credited.
Fourth: Contrary to its conclusion, the guilt of the Petitioner has not been
proved beyond reasonable doubt; hence, by the equipoise rule, should have been
acquitted.
Fifth: Contrary to its conclusion, Petitioner is not civilly liable . 29
(Emphasis in the original)
The Court notes that the rst, second, and fth arguments of petitioner were, in the
main, raised before the appellate court. 3 0
During the pendency of the present petition, petitioner, through counsel, led
before the trial court an "Urgent Ex Parte Alternative Motions (Re: Pat. Ricardo
Bacabac's Motion for Reconsideration and/or to Vacate the Order dated February 7,
2000 [directing the arrest of the accused] and to Recall the Warrant of Arrest Dated the
Same Date in so far as the Accused Pat. Ricardo Bacabac Only is Concerned)." 3 1 The
trial court denied 3 2 the motion as it did deny 3 3 petitioner's motion for reconsideration,
3 4 drawing petitioner to le before this Court on October 5, 2006 a "Motion to Vacate
Order for the Arrest of the Accused and the Warrant of Arrest Issued by the Regional
Trial Court (Branch 39) of Iloilo City." 3 5
In his "Motion to Vacate Order for the Arrest of the Accused and the Warrant of
Arrest Issued by the Regional Trial Court . . .," petitioner argues that
[T]he basis of the RTC's Order of February 7, 2000 was the Entry of
Judgment by the Court of Appeals dated 25 November 1999 . 3 6 BUT THE
SAID ENTRY OF JUDGMENT was ALREADY VACATED and SET-ASIDE
BY THE COURT OF APPEALS ITSELF ON ITS RESOLUTION DATED 13
DECEMBER 2000 . Therefore, the RTC's Order of 7 February 2000 was ipso facto
vacated. 3 7 (Emphasis in the original)
and that
[T]he second sentence of Section 7, Rule 65 of the Rules of Court cited
by the Order of 13 July 2006 does not apply to the case at bench because the
main case on the merits which originated in the RTC as Criminal Cases Nos.
35783-84, went to the Court of Appeals as CA-G.R. No. 16348 and is now pending
in the Supreme Court (Third Division) as G.R. No. 149372 because of the Petition
for Review On Certiorari led by Movant herein . . . . THE MAIN CASE IS NO
LONGER PENDING IN THIS HONORABLE COURT [ sic ]. THEREFORE, THE
RTC HAS NO JURISDICTION TO REITERATE AND EXECUTE THE ORDER
OF 7 FEBRUARY 2000 . 3 8 (Emphasis in the original)
As this Court hereby a rms petitioner's conviction, resolution of his "Motion to

Vacate . . ." is rendered unnecessary.
Petitioner, denying the presence of conspiracy on his part, argues:

[The petitioner] a rms that he was at the scene of the incident and
merely fired a warning shot into the air to respond to a public
disturbance , and his ring a warning shot into the air was intended to avert
further acts of violence ; both circumstances, therefore, being merely and solely
in pursuance to his avowed duty to keep peace and order in the community and
clearly not to be part of any alleged community of design to kill the victims.
xxx xxx xxx
Another indication that there was no unity of purpose and of

execution in so far as the Petitioner is concerned is his conduct after Jose
Talanquines , Jr. shot the victims . Eyewitness accounts state that after that
lone warning shot, closely followed by Jose Talanquines, Jr. ring at the victims,
the petitioner merely stood there and did nothing and said nothing. This is
obviously because he was himself stunned by the fast happening of events. The
investigating police o cer, PO3 NESTOR SANTACERA , on rebuttal, likewise,
admitted to the facts that ten (10) minutes after the incident, they (the police)
responded and upon arrival thereat, learned that the Petitioner already reported
the incident to their station and that it was th e Petitioner who first reported
the shooting incident officially to their office. The aforedescribed proven
conduct of the Petitioner during and immediately after the incident in question
are, Petitioner respectfully submits, inconsistent with what a co-conspirators
is [sic] wont to do under the circumstances. It is submitted instead that his
conduct on the contrary underscores the lack or want of community of purpose
and interest in the killing incident to make him criminally liable under the
conspiracy theory.
Finally, in connection with the conspiracy theory and anent the finding
below that the Petitioner and his Co-Accused waited for the victims ' arrival at
the corner of St. Domingo and M.H. del Pilar Streets, it is asserted that the same
runs counter to the natural and ordinary experience of things and event
[sic], and raises a cloud of doubt over the correctness of the lower Courts decision
which are based on the Prosecution's version of the incident. Since, according to
the prosecution, the Petitioner and the other Accused were armed with high-
powered rearms (armalite ri es and revolver); they waited at the stated street
corner for thirty (30) minutes; the stated street corner was well lighted ;
accompanying them were the wife and two (2) young daughters of Jose
Talanquines, Jr.; and they stood there conversing with the group of Elston
Saquian [a prosecution witness who testi ed that he saw the petitioner and his
co-accused waiting for the victims] 3 9 and admitting that they were waiting for
certain persons who mauled Edzel Talanquines and Jonathan Bacabac.
In other words, the lower Courts gave credence to an improbable
scenario painting the Petitioner, known to the place as a police o cer, and co-
accused to have recklessly and uncaringly displayed, for all and sundry to see,
their alleged criminal intentions. It would indeed be the height of foolishness for
them to be by a well lighted street corner, perhaps even well traversed,
conspicuously fully armed, waiting for persons who were not even sure would
pass by such place, and apparently willing to admit to other passers-by that they
were indeed waiting for the persons who mauled Edzel and Jonathan, and
consequently give out the impression that they were intending to retaliate — which
is what the lower Courts regrettably observed.
xxx xxx xxx

Likewise, the presence of the wife and two (2) young daughters of
the accused Jose Talanquines, Jr. at the scene of the alleged crimes, as
testi ed to by the prosecution witnesses and believed by the lower Courts,
assumes importance in the matter of determining which version of the incident is
correct.
The Prosecution places the wife and the daughters with the alleged fully
armed Petitioner and Co-Accused at Sto. Domingo Streets, also waiting during the
same length of time as the men for the (probable) arrival of the group of the
victims. But such a scenario is, likewise , unnatural . Because , will the
male relatives unhesitatingly expose their defenseless womenfolk to
imminent danger? 4 0 (Citations omitted, emphasis in the original, and
underscoring supplied)
Petitioner's argument that it is improbable for him and his co-accused to have
waited for the victims at a well-lighted street corner does not persuade. Crimes are
known to have been brazenly committed by perpetrators, undeterred by the presence
of onlookers or even of peace o cers, completely impervious of the inevitability of
criminal prosecution and conviction. 4 1
From the mode and manner in which the crimes were perpetrated, the conduct of
petitioner before, during, and after their commission, 4 2 and the conditions attendant
thereto, 4 3 conspiracy, which need not be proved by direct evidence, is deduced. 4 4
Petitioner's ring of his armalite could not have amounted to none other than lending
moral assistance to his co-accused, thereby indicating the presence of conspiracy. 4 5
As the appellate court observed which is quoted with approval:
In the present recourse, when informed that Jonathan and Edzel were
being manhandled and assaulted by male persons, Appellant armed himself
with an M-16 armalite . Jose Talanquines, Jr., the father of Edzel, followed suit
and armed himself with an M-16 armalite gun. Jesus armed himself with a
revolver while Jonathan armed himself with a piece of wood. Jonathan and Edzel
were nephews of the Appellant who resided in the house of Jose Talanquines, Jr.
All the Accused including the Appellant then proceeded posthaste to the
corner of M.H. del Pilar corner Sto. Domingo Streets where the culprits
would pass by and waited for the advent of the culprits. Even as
Hernani apologized for his and his companions' assault of Edzel and
Jonathan, Jesus berated Hernani and his companions. Almost
simultaneously , the Appellant red his gun into the air as Jonathan
lunged at Hernani and his companions to hit them with the piece of
wood . Almost simultaneously, Jose Talanquines, Jr. red his gun at Hernani and
shot Eduardo hitting them and, in the process, hitting his nephew, Jonathan
Bacabac. The Appellant did not lift a finger when Jose fired at and shot
Hernani and Eduardo . He stood by as Jose shot Hernani anew when the
latter on bended knees , raised his two ( 2 ) hands , in surrender . The
Appellant and the other Accuse d then ed from the scene, with their
respective rearms and weapons . The overt act of the Accused and the
Appellant in conjunto, constitute proof of conspiracy.
The Appellant and Jose were armed with high-powered guns .
Jesus was armed with a revolver. The nature of the weapons of the Accused
evinced a common desire to do away with the culprits, not merely to
scare them . cADEIa

What is outrageous is that the Appellant was a policeman. He
could very well have just arrested the culprits as they sauntered by and
brought them to the police station for the requisite investigation and
the institution of criminal complaints, if warranted. He could have
dissuaded Jose and Jesus and assured them that the culprits will be
duly investigated and charged if warranted. The Appellant did not. He
armed himself with an M-16 armalite . . . . [T]he three (3) positioned themselves at
the corner of M.H. del Pilar and Sto. Domingo Streets for the culprits to arrive.
Hernani and his companions were doomed. It may be true that the Appellant did
not aim his gun at the deceased but the same is peu de chose. By his overt acts,
in unison with the other Accused and his kinship with Jonathan and Edzel, We are
convinced that he conspired with Jose Talanquines, Jr. and the other Accused to
achieve a common purpose to kill Hernani and Eduardo. 4 6 (Emphasis and
underscoring supplied)
Petitioner's failure to assist the victims after the shooting reinforces this Court's
appreciation of community of design between him and his co-accused to harm the
victims. That it was he who rst o cially reported the shooting to the police station 4 7
does not make him any less a conspirator. Voluntary surrender and non- ight do not
conclusively prove innocence. 4 8 Besides, a conspirator who wants to extricate himself
from criminal liability usually performs an overt act to dissociate or detach himself
from the unlawful plan to commit the felony while the commission of the felony is in
progress. 4 9 In petitioner's case, he reported the shooting incident after it had already
taken place. In legal contemplation, there was no longer a conspiracy to be repudiated
since it had already materialized. 5 0
Contrary to petitioner's assertion, 5 1 the appellate court did not err in
appreciating the presence of conspiracy despite its nding that there was no evident
premeditation. This Court's pronouncement that conspiracy presupposes the existence
of evident premeditation 5 2 does not necessarily imply that the converse — that evident
premeditation presupposes the existence of a conspiracy — is true. In any event, a link
between conspiracy and evident premeditation is presumed only where the conspiracy
is directly established and not where conspiracy is only implied, as in the present case.
53
Neither did the appellate court err in nding the presence of treachery. Treachery,
under Article 14, paragraph 16 of the Revised Penal Code, is present "when the offender
commits any of the crimes against the person, employing means, methods, or forms in
the execution thereof which tend directly and specially to insure its execution, without
risk to himself arising from the defense which the offended party might make."
What is decisive in treachery is that "the attack was executed in such a manner as
to make it impossible for the victim to retaliate." 5 4 In the case at bar, petitioner, a
policeman, and his co-accused were armed with two M-16 armalites and a revolver. The
victim and his companions were not armed. 5 5 The attack was sudden and unexpected,
5 6 and the victim was already kneeling in surrender when he was shot the second time.
Clearly, the victim and his companion Eduardo had no chance to defend themselves or
retaliate.
Petitioner nevertheless argues that he not being the trigger man, it is not logical
nor legal to hold him guilty of treachery. 5 7 This argument falls in the face of the settled
doctrine that once conspiracy is established, the act of one is the act of all even if not
all actually hit and killed the victim. 5 8
As for petitioner's invocation of the mitigating circumstance of "immediate
vindication of a grave offense", it fails. For such mitigating circumstance to be credited,
the act should be, following Article 13, paragraph 5 of the Revised Penal Code,
"committed in the immediate vindication of a grave offense to the one committing
the felony (delito), his spouse, ascendants, descendants, legitimate, natural
or adopted brothers or sisters, or relatives by affinity within the same
degree . " 5 9 The offense committed on Edzel was "hitting" his ear with a stick 6 0
(according to Jesus), a bamboo pole (according to Edzel). 6 1 By Edzel's own
clari cation, "[he] was hit at [his] ear, not on [his] head." 6 2 That act would certainly not
be classi ed as "grave offense". And Edzel is petitioner's nephew, hence, not a relative
by a nity "within the same degree" contemplated in Article 13, paragraph 5 of the
Revised Penal Code.
WHEREFORE, the petition is DISMISSED and the appellate court's decision is
AFFIRMED.
Costs against petitioner.
SO ORDERED.
Puno * , C.J., Carpio, Tinga and Velasco, Jr., JJ., concur.
Quisumbing, J., is on leave.
Footnotes
1. TSN, December 2, 1991, p. 8; TSN, December 3, 1991, pp. 5, 36-37; Records, Folder 1, pp.
366, 426, 457-458.
2. TSN, December 3, 1991, p. 39; Records, Folder 1, p. 460.
3. TSN, December 2, 1991, p. 16; id. at 374.
4. TSN, August 19, 1991, p. 10; id. at 128.
5. TSN, August 26, 1991, pp. 9-10; id. at 21, 205-206.

6. Records, Folder 2, p. 24.
8. Id. at 1.
10. Records, Folder 1, pp. 702-706.
11. Id. at 707.
12. Id. at 12, 708.
13. Id. at 709-711.
14. Id. at 713-714.
15. Id. at 715.
16. CA rollo, pp. 139-140.
17. Id. at 142-159.

18. Id. at 178-179.
19. Id. at 203-209.
20. Penned by then Court of Appeals Associate Justice Romeo J. Callejo, Sr., with the
concurrence of Court of Appeals Associate Justices Quirino D. Abad Santos, Jr. and
Mariano M. Umali. Id. at 259-275.
22. Id. at 764-768.
23. Id. at 769-773.
24. CA rollo, pp. 279-298.
25. Id. at 335.
26. Id. at 339-355.
27. Id. at 372.
28. Rollo, pp. 11-32.
29. Id. at 14-15.
30. Decision, CA rollo, pp. 266-267.
31. Rollo, pp. 282-285.
32. Id. at 286-288.
33. Id. at 293.
34. Id. at 289-292.
35. Id. at 269-278.
36. The judgment was recorded in the Book of Entries of Judgments on July 22, 1999 but
the certification of such entry is dated November 25, 1999. Vide records, Folder 1, p. 763.
37. Id. at 275.
38. Ibid.
39. TSN, August 19, 1991, pp. 3-7; id. at 121-125.
40. Rollo, pp. 18-19, 24-26.
41. Vide People v. Chua, G.R. No. 149538, July 26, 2004, 435 SCRA 192, 202.
42. Vide People v. Rojas, G.R. Nos. L-46960-62, January 8, 1987, 147 SCRA 169, 176.
43. Vide People v. Arroyo, G.R. No. 99258, September 13, 1991, 201 SCRA 616, 629.
44. Vide Orodio v. Court of Appeals, G.R. No. L-57519, September 13, 1988, 165 SCRA 316,
323.
45. Vide People v. Luayon, 329 Phil. 560, 576 (1996).

46. CA rollo, pp. 272-273.

47. Rollo, p. 24.
48. Vide People v. Quijada, 328 Phil. 505, 532 (1996).
49. Vide People v. De los Reyes, G.R. No. 44112, October 22, 1992, 215 SCRA 63, 71.
50. Ibid.
51. Rollo, p. 27.
52. People v. Regalario, G.R. No. 101451, March 23, 1993, 220 SCRA 368, 387.
53. Vide People v. Herbias, 333 Phil. 422, 431-432 (1996).
54. People v. Hingan, 311 Phil. 108, 120 (1995).
56. Ibid.
57. Rollo, p. 224.
58. Vide People v. Ambrocio, G.R. No. 140267, June 29, 2004, 434 SCRA 67, 83.
59. Emphasis and underscoring supplied.
60. TSN, December 3, 1991, p. 39; Records, Folder 1, p. 460.

61. TSN, December 2, 1991, p. 12; id. at 370.
62. Id. at 38; id. at 396.
* Designated member pursuant to Administrative Circular No. 75-2007.

FIRST DIVISION
[G.R. No. 4971. September 23, 1909.]
THE UNITED STATES , plaintiff, vs . AUGUSTUS HICKS , defendant.
Solicitor-General Harvey for plaintiff.

Jose Robles Lahesa for defendant.
SYLLABUS
1. MURDER; "ALEVOSIA;" PREMEDITATION; PENALTY. — Where the act of

causing the violent death of a woman has already been quali ed by the speci c
circumstance of treachery (alevosia), if premeditation is also present therein it can only
produce the effect of a generic aggravation circumstance which, together with another
of the same class, required the imposition in the maximum degree of the penalty which
the law fixes for the crime.
2. ID.; LOSS OF REASON AND SELF-CONTROL. — The causes which produce
in the mind loss of reason and self-control, and which lessen criminal responsibility, are
those which originate from lawful sentiments, not such as arise from vicious, unworthy,
and immoral passions; therefore, in the present case it is not proper to consider that
mitigating circumstance 7 of article 9 of the Penal Code was present.
DECISION
TORRES , J : p
For about ve years, from September, 1902, to November, 1907, Augustus Hicks,
an Afro-American, and Agustinal Sola, a Christian Moro woman, illicitly lived together in
the municipality of Parang, Cotabato, Moro Province, until trouble arising between them
in the last-mentioned month of 1907, Agustina quitted Hick's house, and, separating
from him, went to live with her brother-in-law, Lues Corrales. A few days later she
contracted new relations with another negro named Wallace Current, a corporal in the
Army who then went to live with her in the said house.
On the 21st of December following, at about 7.30 p. m., Augustus Hicks together
with a soldier named Lloyd Nickens called at said house, and from the sala called out to
his old mistress who was in her room with Corporal Current, and after conversing with
her in the Moro dialect for a few minutes, asked the corporal appeared at the door of
the room, and after a short conversation, Current approached Hicks and they shook
hands, when Hicks asked him the following question: "Did I not tell you to leave this
woman alone?," to which Current replied: "That is all right, she told me that she did not
want to live with you any longer, but if she wishes, she may quit me, and you can live
with her." The accused then replied: "God damn, I have made up my mind;" and as
Corporal Current saw that Hicks, when he said this, was drawing a revolver from his
trousers' pocket, he caught him by the hand, but the latter, snatching his hand roughly
away, said: "Don't do that," whereupon Current jumped into the room, hiding himself
behind the partition, just as Hicks drew his revolver and red at Agustina Sola who was
close by in the sala of the house. The bullet struck her in the left side of the breast; she
fell to the ground, and died in a little more than an hour later.
Upon hearing the shot Edward Robinson, who was also in the house, went to
render assistance and wrested the weapon from the hand of the accused. The latter
immediately ed from the house and gave himself up to the chief of police of the town,
H. L. Martin, asking him to lock him up in jail; and, when a few minutes later a policeman
came running in and reported that Hicks and red a shot at Agustina, the said chief of
police caused Hicks to be arrested. The latter, when once in jail, threw eight revolver
cartridges out of the window; these were picked up by a policeman who reported the
occurrence and delivered the cartridges to chief.
In view of the foregoing the provincial scal on the 8th of February, 1908, led a
complaint with the Court of First Instance of said province charging Augustus Hicks
with the crime of murder. Proceedings were instituted, the trial court, after hearing the
evidence adduced, entered judgment on the 10th of September of the same year,
sentencing the accused to the penalty of death, to be executed according to the law, to
indemnify the heirs of the deceased in the sum of P1,000, and to pay the costs. The
case has been submitted to this court for review.
The above-stated facts, which have been fully proven in the present case,
constitute the crime of murder, de ned and punished by article 403 of the Penal Code,
in that the woman Agustina Sola met a violent death, with the qualifying circumstance
of treachery (alevosia), she being suddenly and roughly attacked and unexpectedly red
upon with a 45-caliber revolver, at close, if not point blank range, while the injured
woman was unarmed and unprepared, and at a time when she was listening to a
conversation, in which she was concerned, between her aggressor and a third person,
and after usual and customary words had passed between her and her aggressor. From
all of the foregoing it is logically inferred that means, manners, and forms were
employed in the attack that directly and specially insured the consummation of the
crime without such risk to the author thereof as might have been offered by the victim
who, owing to the suddenness of the attack, was doubtless unable to ee from the
place where she was standing, or even escape or divert the weapon.
The accused, Augustus Hicks, pleaded not guilty, but notwithstanding his
exculpatory allegations which were certainly not borne out at the trial, the evidence in
the case is absolutely at variance therewith and conclusively establishes, beyond
peradventure of doubt, his culpability as the sole fully convicted author of the violent
and treacherous death of his former mistress, Agustina Sola.
It is alleged by the accused that when he withdrew his hand from that of Current,
who had seized him, he fell backward but managed to support himself on his two
hands, and when he got up again the said corporal threatened him with a revolver thrust
into his face; whereupon he also drew his revolver, just as Edward Robinson caught him
from behind, when his revolver went off, the bullet striking the deceased.
This allegation appears to be at variance with the testimony of the witnesses
Wallace Current, Edward Robinson, Luez Corrales, and Lloyd Nickens in their respective
declarations, especially with that of the second and third, who witnessed the actual
ring of the shot by the aggressor at the deceased, as shown by the fact that Robinson
immediately approached the accused in order to take his weapon away from him which
he succeeded in doing after a brief struggle, whereupon the aggressor ran out of the
house. Thus, the shot that struck the deceased in the breast and caused her death was
not due to an accident but to a willful and premeditated act on the part of the
aggressor with intent to deprive the victim of her life.
In addition to the qualifying circumstance of treachery, as above referred to, the
presence of other aggravating circumstances, such as premeditation, and the fact that
the crime was committed in the dwelling of the deceased should be taken into
consideration. The last-mentioned circumstance appears proven from the testimony of
several witnesses who were examined at the trial of the case.
Inasmuch as in the present case the crime has already been quali ed as
committed with treachery, the circumstance of premeditation should only be
considered as a merely generic one. Premeditation is, however, manifest and evident by
reason of the open acts executed by the accused. According to the testimony of
Charles Gatchey and Eugenio R. Whited, Hicks asked leave from the former to be
absent from the canteen where he was working on the morning of the day when the
affray occurred, alleging that his mind was unsettled and that he feared getting into
trouble. It is also shown by the fact that Whited, who was in Hicks' house about noon
upon the latter's invitation, and while both where drinking gin, and while the revolver, the
instrument of the crime, was lying on the table on which were also several loaded
cartridges, heard the accused repeatedly say, referring to the deceased, that her time
had come, adding that he would rather see her dead than in the arms of another man,
and when the accused went to bed apparently very much worried, and refusing to
answer when called, the witness left him. On the day after the crime the police found on
a table in the culprit's house several loaded cartridges, a bottle of oil and a piece of
cloth used undoubtedly for cleaning the revolver.
All the foregoing circumstances conclusively prove that the accused, deliberately
and after due re ection had resolved to kill the woman who had left him for another
man, and in order to accomplish his perverse intention with safety, notwithstanding the
fact that he was already provided with a clean and well — prepared weapon and carried
other loaded cartridges besides those already in his revolver, he entered the house,
greeting everyone courteously and conversed with his victim , in what appeared to be a
proper manner, disguising his intention and calming her by his apparent repose and
tranquillity, doubtless in order to successfully accomplish his criminal design, behaving
himself properly as he had planned to do beforehand.
As against the two foregoing aggravating circumstances no mitigating
circumstance is present, not even that mentioned in paragraph 7 of article 9 of the
Penal Code, to wit, loss of reason and self-control produced by jealousy as alleged by
the defense, inasmuch as the only causes which mitigate the criminal responsibility for
the loss of self-control are such as originate from legitimate feelings, not those which
arise from vicious, unworthy, and immoral passions.
From the foregoing considerations, and as the judgment appealed from is in
accordance with the law, it is our opinion that the same should be a rmed, as we do
hereby a rm it with costs, provided, however, that the death penalty shall be executed
according to the law in force, and that in the event of a pardon being granted, the culprit
shall suffer the accessory penalties of article 53 of the Penal Code unless the same be
expressly remitted in the pardon. So ordered.
Arellano, C.J., Johnson, Carson and Moreland, JJ., concur.

FIRST DIVISION
[G.R. No. 7094. March 29, 1912.]
THE UNITED STATES , plaintiff-appellee, vs . HILARIO DE LA CRUZ ,

defendant-appellant.
F. C. Fisher, for appellant.

Acting Attorney-General Harvey, for appellee.
SYLLABUS
1. HOMICIDE; MITIGATING CIRCUMSTANCE OF PASSION AND

OBFUSCATION. — Held: That the commission of the offense of which defendant was
convicted was marked with the extenuating circumstance de ned in subsection 7 of
article 9, in that defendant "acted upon an impulse so powerful as naturally to have
produced passion and obfuscation," the evidence disclosing that in the heat of passion
he killed the deceased, who had theretofore been his querida (concubine or lover), upon
discovering her in flagrante in carnal communication with a mutual acquaintance
2. ID.; ID.; U. S. vs. HICKS DISTINGUISHED. — The facts in this case
distinguished from those in the case of U. S. vs. Hicks (14 Phil. Rep., 217), wherein the
defendant was held not to be entitled to the bene ts of the provisions of the above-
mentioned article of the code.
3. ID.; ID.; ID. — In the former case the cause of the alleged "passion and
obfuscation" of the aggressor was the convict's vexation disappointment and anger
engendered by the refusal of the woman to continue to live in illicit relations with him,
which she had a perfect right to do, his reason for killing her being merely that she had
elected to leave him and with his full knowledge to go and live with another. In the case
at bar the impulse upon which the defendant acted, and which naturally produced
'passion and obfuscation," was not that the woman declined to have illicit relations with
him, but the sudden revelation that she was untrue to him, and his discovery of her in
flagrante in the arms of another.
DECISION
CARSON , J : p
The guilt of the defendant and appellant of the crime of homicide of which he
was convicted in the court below is conclusively established by the evidence of record.
The trial court was of opinion that its commission was not marked by either
aggravating or extenuating circumstances, and sentenced the convict to fourteen years
eight months and one day of reclusion temporal, the medium degree of the penalty
prescribed by the code. But we are of opinion that the extenuating circumstance set out
in subsection 7 of article 9 should have been taken into consideration, and that the
prescribed penalty should have been imposed in its minimum degree. Subsection 7 of
article 9 is as follows:
"The following are extenuating circumstances:
xxx xxx xxx
"That of having acted upon an impulse so powerful as naturally to have
produced passion and obfuscation."
The evidence clearly discloses that the convict, in the heat of passion, killed the
deceased, who had theretofore been his querida (concubine or lover) upon discovering
her in agrante in carnal communication with a mutual acquaintance. We think that
under the circumstances the convict was entitled to have this fact taken into
consideration in extenuation of his offense under the provisions of the above-cited
article.
This was the view taken by the supreme court of Spain upon a similar state of
facts as set forth in its sentence of July 4, 1892, which is summarized by Viada (p. 69,
in question 19, art. 9 of vol. 6) as follows:
"Shall he who kills a woman with whom he is living in concubinage for
having caught her in her underclothes with another party and afterwards shoots
himself, in icting a serious wound, be responsible for that crime with the
extenuating circumstance of having acted with violent passion and obfuscation?
T h e Audiencia of Santiago de Cuba did not so hold and its judgment was
reversed by the supreme court for improper disregard of article 9, number 8, of the
Penal Code for Cuba and Puerto Rico: 'The facts held to be true by the trial court,
and which were the immediate cause of the crime by producing in the accused
strong emotion which impelled him to the criminal act and even to attempt his
own life, were a su cient impulse in the natural and ordinary course to produce
the violent passion and obfuscation which the law regards as a special reason for
extenuation, and as the judgment did not take into consideration the 8th
circumstance of article 9 of the code, the Audience rendering it seems to have
violated this legal provision.'"
It is true that in the case of U. S. vs. Hicks (14 Phil. Rep., 217), we held that the
"causes which mitigate the criminal responsibility for the loss of self-control are such
as originate from legitimate feelings, not those which arise from vicious, unworthy, and
immoral passions," and declined to give the bene t of the provisions of this article to
the convict in that case on the ground that the alleged causes for his loss of self-
control did not "originate from legitimate feelings." But in that case we found as facts
that:
"All the foregoing circumstances conclusively prove that the accused,
deliberately and after due re ection had resolved to kill the woman who had left
him for another man, and in order to accomplish his perverse intention with
safety, notwithstanding the fact that he was already provided with a clean and
well-prepared weapon and carried other loaded cartridges besides those already
in his revolver, he entered the house, greeting everyone courteously and conversed
with his victim, in what appeared to be a proper manner, disguising his intention
and calming her by his apparent repose and tranquility, doubtless in order to
successfully accomplish his criminal design, behaving himself properly as he had
planned to do beforehand."
In the former case the cause of the alleged "passion and obfuscation" of the
aggressor was the convict's vexation, disappointment and deliberate anger engendered
by the refusal of the woman to continue to live in illicit relations with him, which she had
a perfect right to do; his reason for killing her being merely that he had elected to leave
him and with his full knowledge to go and live with another man. In the present case
however, the impulse upon which defendant acted and which naturally "produced
passion and obfuscation" was not that the woman declined to have illicit relations with
him, but the sudden revelation that she was untrue to him, and his discovery of her in
flagrante in the arms of another. As said by the supreme court of Spain in the above
cited decision, this was a "su cient impulse" in the ordinary and natural course of
things to produce the passion and obfuscation which the law declares to be one of the
extenuating circumstances to be taken into consideration by the court.
Modi ed by a nding that the commission of the crime was marked with the
extenuating circumstance set out in subsection 7 of article 9, and by the reduction of
the penalty of fourteen years eight months and one day of reclusion temporal to twelve
years and one day of reclusion temporal, the judgment of conviction and the sentence
imposed by the trial court should be and are hereby a rmed, with the costs of this
instance against the appellant.
Arellano, C.J., Torres, Johnson, and Trent, JJ., concur.
Separate Opinions
MORELAND , J., concurring :
I agree except as to the application of the extenuating circumstance presented

by paragraph 7, article 9, Penal Code. In my judgment it is not warranted by the facts or
the law.

FIRST DIVISION
[G.R. No. 95357. June 9, 1993.]
PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. EDUARDO

GELAVER , accused-appellant.

Joffrey L. Montefrio for accused-appellant.
SYLLABUS
1. CRIMINAL LAW; DEATH OR PHYSICAL INJURIES INFLICTED UNDER EXCEPTIONAL

CIRCUMSTANCES; REQUISITES THEREFOR. — Before Article 247 of the Revised Penal
Code can be operative, the following requisites must be compresent: "1. That a legally
married person or a parent surprises his spouse or his daughter, the latter under 18 years
of age and living with him, in the act of committing sexual intercourse with another person.
"2. That he or she kills any or both of them or inflicts upon any or both of them any serious
physical injury in the act or immediately thereafter. "3. That he has not promoted or
facilitated the prostitution of his wife or daughter, or that he or she has not consented to
the infidelity of the other spouse."
2. ID.; ID.; DEATH CAUSED MUST BE THE PROXIMATE RESULT OF THE OUTRAGE
OVERWHELMING THE ACCUSED AFTER CHANCING UPON HIS SPOUSE IN THE ACT OF
INFIDELITY. — Implicit in this exceptional circumstance is that the death caused must be
the proximate result of the outrage overwhelming the accused after chancing upon his
spouse in the act of infidelity (People v. Abarca, 153 SCRA 735 [1987]).
3. ID.; MITIGATING CIRCUMSTANCE; VOLUNTARY SURRENDER; APPRECIATED IN
CASE AT BAR. — The trial court was correct in finding the presence of the mitigating
circumstance of voluntary surrender to the authorities. Appellant, immediately after
committing the offense, voluntarily placed himself at the disposal of the police authorities
as evidenced by the entry in the official police blotter.
4. ID.; ID.; PASSION OR OBFUSCATION, NOT PRESENT WHERE CONSIDERABLE
LENGTH OF TIME HAS ELAPSED FROM THE ACT PRODUCING THE OBFUSCATION WHEN
THE CRIME WAS COMMITTED. — The trial court erred in finding the presence of the
mitigating circumstance of passion or obfuscation "as a result of his (appellant's) wife
leaving their home and their children." Before this circumstance may be taken into
consideration, it is necessary to establish the existence of an unlawful act sufficient to
produce such a condition of mind. The act producing the obfuscation must not be far
removed from the commission of the crime by a considerable length of time, during which
the accused might have recovered his equanimity. The crime was committed almost a year
after the victim had abandoned the conjugal dwelling.
DECISION
QUIASON , J : p
This is an appeal from the decision of the Regional Trial Court, Branch 26, Surallah, South
Cotabato, finding Eduardo Gelaver guilty beyond reasonable doubt of Parricide (Art. 246,
Revised Penal Code) and sentencing him to "suffer the penalty to reclusion perpetua and to
indemnify the heirs of his wife, Victoria Pacinabao, in the amount of P30,000.00." (Decision,
p. 7; Rollo, p. 28). llcd
In the Information filed with the trial court and docketed as Criminal Case No. 643,
Eduardo Gelaver, was charged with Parricide, committed as follows:
"That on or about the 24th day of March, 1988 at 7:00 o'clock in the morning,
more or less, in Barangay Poblacion, Municipality of Sto. Niño, Province of South
Cotabato, Philippines, and within the jurisdiction of this Honorable Court, said
accused with intent to kill and being then armed with a knife did then and there
wilfully, unlawfully and feloniously attack, assault and stab one VICTORIA
GELAVER Y PACINABAO, his lawfully wedded wife, with the use of the said knife
hitting her and wounding her on the different parts of her body and as a result
thereof said Victoria Gelaver y Pacinabao died instantly." (Rollo, p. 7).
At his arraignment, appellant entered a plea of "not guilty", and thereafter trial on the merits
ensued.
The prosecution presented Randy Mamon, who testified that at 7:00 a.m. of March 24,
1988, he heard shouts coming from the house of Tessie Lampedario in Barangay
Poblacion, Municipality of Sto. Niño, South Cotabato. He saw the appellant and a woman
having a heated argument. Thereafter, appellant held the neck of the victim, dragged her
and with a knife on his right hand, stabbed the latter three times on the breast. Appellant
then went out of the gate and fled in the direction of the public market of Sto. Niño. (TSN,
June 27, 1988, pp. 7-10).
Eduardo Gelaver admitted killing his wife but claimed that he did so after catching her
having carnal act with her paramour.
Appellant testified that he was married to Victoria Pacinabao, with whom he begot four
children. (TSN, December 19, 1988, p. 9) They lived together at their conjugal home until
July 3, 1987 when she abandoned her family to live with her paramour. (TSN, December 19,
1988, pp. 10-11) He did not know the name of his wife's paramour nor the name of the
owner of the house where his wife and her paramour had lived together. LLphil
Appellant further testified that on March 24, 1988, after he was informed by his daughter
that his wife and paramour were living at a house in front of the Sto. Niño Catholic Church,
appellant immediately repaired to that place. Upon entering the house, he saw his wife
lying on her back and her paramour on top of her, having sexual intercourse.
Appellant's version of the killing was that when his wife saw him, she pushed her paramour
aside. Her paramour immediately stood up, took a knife placed on top of the bedside table
and attacked appellant. The latter was able to wrest possession of the knife and then used
it against the paramour, who evaded the thrusts of the appellant by hiding behind the
victim. Thus, it was the victim who received the stab intended for the paramour. LibLex
As to why he continued to stab his wife, appellant said that his mind had been "dimmed" or
overpowered by passion and obfuscation by the sight of his wife having carnal act with her
paramour.
Appellant faults the trial court in imposing the penalty of reclusion perpetua for the crime
of parricide, instead of the penalty of destierro for killing under exceptional circumstances
pursuant to Article 247 of the Revised Penal Code. (Appellant's Brief, p. 1).
Appellant's contention is bereft of merit.
Before Article 247 of the Revised Penal Code can be operative, the following requisites
must be compresent:
"1. That a legally married person or a parent surprises his spouse or his
daughter, the latter under 18 years of age and living with him, in the act of
committing sexual intercourse with another person.
"2. That he or she kills any or both of them or inflicts upon any or both of
them any serious physical injury in the act or immediately thereafter.
"3. That he has not promoted or facilitated that prostitution of his wife or
daughter, or that he or she has not consented to the infidelity of the other spouse."
(II Reyes, The Revised Penal Code, 12th Ed., pp. 452-453; Emphasis supplied).
These requisites must be established by the defense.

Implicit in this exceptional circumstance is that the death caused must be the proximate
result of the outrage overwhelming the accused after chancing upon his spouse in the act
of infidelity (People v. Abarca, 153 SCRA 735 [1987]). In this case, appellant wants this
Court to believe that he caught his wife and her paramour in sexual intercourse. However,
his testimony is tainted with inconsistencies which leads Us to believe otherwise.
Appellant's failure to inform the police that he killed his wife when he saw her having sexual
intercourse with her paramour, devastated in one fell swoop whatever credibility could
possibly be accorded to his version of the incident. As noted by the Solicitor General, the
natural thing for a person to do under the circumstances was to report to the police the
reason for killing his wife. (Appellee's Brief, p. 8; Rollo, p. 76) Appellant's contention that he
thought that only the killing itself should be blottered, reserving the details to the defense
lawyer, sounded like a spoonfed afterthought. LLpr
If there was a naked man with the victim, he would have had no time to get dressed
because he was then under attack by appellant. There would then have been the spectacle
of a man in the nude running in the streets.
The trial court noted several contradictions in appellant's testimony. Appellant claimed
that he chased the paramour but was unable to overtake him and at the same time, he
testified that the paramour stayed in the room and used the victim as a shield against
appellant's attack with the knife. Appellant also claimed that upon entering the gate of the
fence, he saw his wife and her paramour having carnal act and at the same breath, he
testified that he saw his wife and her paramour only when he opened the main door of the
house. LexLib
The trial court found as contrary to human nature appellant's claims that he went to
confront the paramour of his wife unarmed and that he never learned the name of the
paramour inspite of the fact that his wife, allegedly, had been living with the paramour in
the same town for almost a year before the incident.
Absent any substantial proof that the trial court's decision was based on speculation, the
same must be accorded full consideration (People v. Martinada, 194 SCRA 36 [1991] and
should not be disturbed on appeal (Mercury Drug v. CIR, 56 SCRA 694 [1974]).
Appellant's claim that on the day prior to his killing of the victim, his daughter Sheryl had
confided to him that her mother was living with a paramour at the house in front of the Sto.
Niño Catholic Church, was belied by Sheryl herself. In her testimony, she stated that she did
not know the house where the crime was committed and she had not gone to that place.
She further testified that she had not seen her mother in any other house except that of her
grandfather's. (TSN, January 17, 1989, p. 5). LLpr
The trial court was correct in finding the presence of the mitigating circumstance of
voluntary surrender to the authorities. Appellant, immediately after committing the offense,
voluntarily placed himself at the disposal of the police authorities as evidenced by the
entry in the official police blotter. (Exh. "1").
However, the trial court erred in finding the presence of the mitigating circumstance of
passion or obfuscation "as a result of his (appellant's) wife leaving their home and their
children." (Rollo, p. 28) Before this circumstance may be taken into consideration, it is
necessary to establish the existence of an unlawful act sufficient to produce such a
condition of mind. The act producing the obfuscation must not be far removed from the
commission of the crime by a considerable length of time, during which the accused might
have recovered his equanimity. (I Revised Penal Code, Aquino, 1987 ed., p. 267) The crime
was committed almost a year after the victim had abandoned the conjugal dwelling. LLphil
WHEREFORE, the judgment appealed from is AFFIRMED except with the MODIFICATION
that the indemnity, should be increased to P50,000.00 (People v. Sison, 189 SCRA 700
[1990]).
SO ORDERED.
Cruz, Griño-Aquino and Bellosillo, JJ ., concur.

EN BANC
[G.R. No. L-18792. February 28, 1964.]
THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . GUILLERMO

BELLO , defendant-appellant.
Solicitor General for plaintiff-appellee.

Ferdinand E. Marcos for defendant-appellant.
SYLLABUS
1. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; TREACHERY; WHEN

STABBING AT THE BACK DOES NOT CONSTITUTE TREACHERY. — There is no
treachery although the victim was stabbed at the back when such wound was but a part
and continuation of the aggression; and the four wounds were in icted indiscriminately,
the stab at the back having been inflicted as the victim was running away.
2. ID.; ID.; EVIDENT PREMEDITATION; WHEN CARRYING OF BALISONG AND
WATCHING VICTIM DO NOT CONSTITUTE PREMEDITATION. — Where carrying of
balisong had been done by the accused for a long time as a precaution against
drunkards without any present plan to use it against his wife, and the daily watch of her
movements merely manifested his jealous character and there is no evidence that from
this jealousy sprouted a plan to snuff out her life, it is held that evident premeditation
was not established.
3. ID.; ID.; SUPERIOR STRENGTH; DELIBERATE INTENT NECESSARY. — For
superior strength to aggravate a crime, it must be clearly shown that there was
deliberate intent to take advantage of it.
4. ID.; ID.; OBVIOUS UNGRATEFULNESS; SUPPORT BY COMMON-LAW WIFE.
— No obvious ungratefulness is inferable from the fact that the killer was penniless
while the victim, was able to earn a living and occasionally gave him money, since both
lived together as husband and wife.
5. CRIMINAL LAW; MITIGATING CIRCUMSTANCES; PASSION AND
OBFUSCATION. — The accused's insistence that his common law wife abandon her
work as hostess and live with him again, and his rage at her rejection of the proposal,
cannot be properly termed as arising from immoral and unworthy passions, and
therefore the accused in the case at bar can be given the bene t of the mitigating
circumstance of having acted on a provocation su ciently strong to produce passion
and obfuscation.
DECISION
REYES, J.B.L. , J : p
Appeal from a judgment of the Court of First Instance of Quezon in its Criminal
Case No. 592-G, for murder.
The information led against the accused alleged four (4) aggravating
circumstances, namely: treachery, evident premeditation, night-time, and superior
strength. The trial court made a nding of "treachery, evident premeditation and in cold
blood and without any provocation"; however, the dispositive portion of the appealed
decision states as follows:
". . . the Court nds the accused Guillermo Bello guilty beyond reasonable
doubt of the crime of murder de ned and punished by Article 248 of the Revised
Penal Code with the aggravating circumstances of (1) night time, (2) abuse of
con dence and obvious ungratefulness (3) superior strength off-set only by his
surrender to the authorities and hereby sentences him to DIE by electrocution in
the manner provided by law ordering his heirs, after his death, to indemnify the
heirs of the deceased Alicia Cervantes in the sum of P3,000.00, with costs."
The record bears out, the O ce of the Solicitor-General does not challenge, and
the counsel de officio agrees with, and adopts, the following ndings of fact of the trial
court:
"From the evidence adduced at the hearing of the case, it has been
established to the satisfaction of the Court (1) that on September 17, 1954 the
accused Guillermo Bello, a widower, who at that time was about 54 years of age,
took a young peasant lady named Alicia Cervantes, about 24 years old, as his
common-law wife; (2) that from that day they lived together apparently in blissful
harmony as man and wife without the bene t of marriage bearing, however no
child. . . .; (3) that on May 15, 1958, the accused who had no means of substantial
livelihood except that of making "kaingin" and who apparently was then in
nancial straits induced Alicia Cervantes to accent an employment as entertainer
in a bar and restaurant establishment known as Maring's Place situated at the
corner of Aguinaldo and Bonifacio Streets, Gumaca, Quezon; (4) that Alicia
Cervantes entered the service of Maring's Place on that day as a public hostess;
(5) that the accused being infatuated with his young bride used to watch her
movements in Maring's Place everyday; (6) that on May 15 he saw Alicia enter the
Gumaca theater in Gumaca with a man whom the accused found later was
caressing his common-law wife inside the movie house; (7) that being in love with
her he took her out from the movie house and warned her to be more discreet in
her personal conduct in Gumaca; (8) that Alicia Cervantes continued to serve at
Maring's Place as a public hostess; (9) that on May 20, 1958, at 3:00 p.m. the
accused went to Maring's Place to ask for some money from Alicia; (10) that
Maring, the owner of the Place, and Alicia refused to give money, Maring telling
him to forget Alicia completely because he was already an old man, an invalid
besides and should stop bothering Alicia; (11) that having failed to obtain
nancial assistance from his paramour, the accused left the place somewhat
despondent and went home passing Bonifacio Street; (12) that on his way home
he met the brothers Justo Marasigan and Luis Marasigan who greeted the
accused, Luis saying to his brother Justo the following: 'So this is the man whose
wife is being used by Maring for white slave trade'; (13) that these remarks of Luis
Marasigan naturally brought grief to the accused, to drown which he sought
Paty's place in Gumaca where he drank 5 glasses of tuba; (14) that from Paty's
place he went to Realistic Studio which is in front of Maring's Place and from
there watched the movements of Alicia; (15) that at about 9:00 o'clock that night
he entered Maring's Place and without much ado held Alicia from behind with his
left hand in the manner of a boa strangulating its prey and with his right hand
stabbed Alicia several times with a balisong; (16) that seeing Alicia fallen on the
ground and believing her to be mortally wounded, he ed and went to the
municipal building and there surrendered himself to the police of Gumaca.".
Both the prosecution and the defense also agree that the crime committed is not
murder but only homicide, but they disagree in the qualifying or aggravating and
mitigating circumstances. The prosecution holds that the crime is homicide,
aggravated by abuse of superior strength, but off-set by voluntary surrender. On the
other hand, the defense maintains that the accused is entitled to the additional
mitigating circumstance of passion and obfuscation. The trial court held a different
conclusion, as earlier stated.
While it cannot be denied that Alicia was stabbed at the back, the wound was but
a part and continuation of the aggression. The four (4) stab wounds (the 3 others were
in the breast, hypogastric region, and in the left wrist — as shown in the certi cate of
the Municipal Health O cer) were in icted indiscriminately, without regard as to which
portion of her body was the subject of attack. The trial court itself found that the stab in
the back was in icted as Alicia was running away. For this reason, treachery cannot be
imputed (Peo. v. Cañete, 44 Phil. 478).
Evident premeditation was, likewise, not established. The accused had been
carrying a balisong with him for a long time as a precaution against drunkards, and
without any present plan or intent to use it against his common-law wife. That he
watched her movements daily manifested his jealous character, but there is no
evidence that from this jealousy sprouted a plan to snuff out her life.
The evidence does not show, either, any superior strength on the part of the
accused, and, not possessing it, he could not take advantage of it. True that he was
armed with a balisong , but he was old and baldado (invalid), while Alicia was in the
prime of her youth, and not in rm. The facts are not su cient to draw a comparison of
their relative strength. Possession of a balisong gives an aggressor a formidable
advantage over the unarmed victim, but the physique of the aggressor ought also to be
considered. At any rate, taking into account the emotional excitement of the accused, it
is not clearly shown that there was "intencion deliberada de prevalerse de la
superioridad o aprovecharse intencionadamente de la misma" (Sent. TS. 5 Oct. 1906),
i.e., deliberate intent to take advantage of superior strength.
The crime was committed at night-time, but the accused did not seek or take
advantage of it the better to accomplish his purpose. In fact, Maring's Place was bright
and well-lighted; hence, the circumstance did not aggravate the crime. (U.S. vs. Ramos,
et al., 2 Phil. 434; U. S. vs. Bonete, 40 Phil. 958)
We can not understand how the trial court came to couple the crime with the
aggravating circumstance of abuse of con dence and obvious ungratefulness. There is
nothing to show that the assailant and his common-law wife reposed in one another
any special con dence that could be abused, or any gratitude owed by one to the other
that ought to be respected, and which would bear any relation, or connection, with the
crime committed. None is inferable from the fact that the accused was much older than
his victim, or that he was penniless while she was able to earn a living and occasionally
gave him money, since both lived together as husband and wife. Neither is it shown that
the accused took advantage of any such special con dence in order to carry out the
crime.
Since the aggravating circumstances of treachery, evident premeditation, and
abuse of superior strength, which could have quali ed the crime as murder, were not
present, and since the generic aggravating circumstances of night-time and abuse of
con dence and obvious ungratefulness have not been established, the accused can
only be liable for homicide.
Both defense and prosecution agree that accused-appellant is entitled to the
bene t of the mitigating circumstance of voluntary surrender to the authorities. The
remaining area of con ict is reduced to whether the accused may lay claim to a second
mitigating circumstance, that of having acted on a provocation su ciently strong to
cause passion and obfuscation. The defense submits that accused is so entitled,
because the deceased's at rejection of petitioner's entreaties for her to quit her calling
as a hostess and return to their former relation, aggravated by her sneering statement
that the accused was penniless and invalid (baldado), provoked the appellant, as he
testi ed, into losing his head and stabbing the deceased. The state disputes the claim
primarily on the strength of the rule that passion and obfuscation can not be
considered when "arising from vicious, unworthy and immoral passions" (U.S. vs. Hicks,
14 Phil. 217).
We are inclined to agree with the defense, having due regard to the
circumstances disclosed by the record. It will be recalled that the lower court found
that the accused had previously reproved the deceased for allowing herself to be
caressed by a stranger. Her loose conduct was forcibly driven home to the accused by
Marasigan's remark on the very day of the crime that the accused was the husband
"whose wife was being used by Maring for purposes of prostitution", a remark that so
deeply wounded the appellant's feelings that he was driven to consume a large amount
of wine (tuba) before visiting Alicia (the deceased) to plead with her to leave her work.
Alicia's insulting refusal to renew her liaison with the accused, therefore, was not
motivated by any desire to lead a chaste life henceforth, but showed her determination
to pursue a lucrative profession that permitted her to distribute her favors
indiscriminately. We can not see how the accused's insistence that she live with him
again, and his rage at her rejection of the proposal, can be properly quali ed as arising
from immoral and unworthy passions. Even without bene t of wedlock, a monogamous
liaison appears morally of a higher level than gainful promiscuity.
WHEREFORE, the appealed decision should be, and hereby is, modi ed. This
Court nds the accused-appellant, Guillermo Bello, guilty beyond reasonable doubt of
the crime of homicide, attended by two (2) mitigating circumstances: (a) passion and
obfuscation, and (b) voluntary surrender; and, therefore, imposes upon him an
indeterminate sentence ranging from a minimum of six (6) years and one (1) day of
prision mayor to a maximum of ten (10) years of prisión mayor; orders him also to
personally indemnify the heirs of Alicia Cervantes in the amount of P6,000.00, and to
pay the costs. So ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, Paredes,
Dizon, Regala and Makalintal, JJ., concur.

FIRST DIVISION
[G.R. Nos. 54344-45. January 10, 1994.]
PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. WILLIE AMAGUIN,

GILDO AMAGUIN and CELSO AMAGUIN , accused. WILLIE AMAGUIN
and GILDO AMAGUIN , accused-appellants.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; ASSESSMENT OF

THE TRIAL COURT; RULE AND EXCEPTION. — The matter on credibility of the witnesses is
addressed to the sound judgment of the trial court which is in a better position to decide
them, it having heard the witnesses and observed their deportment and manner of
testifying during the trial. Consequently, the assessment of the trial judge is usually
received with respect, if not conclusiveness, on appeal unless there is a showing of
arbitrariness. Always, this has been the familiar rule.
2. ID.; ID.; ID.; TESTIMONY OF A SINGLE WITNESS; IF CREDIBLE AND POSITIVE;
SUFFICIENT TO CONVICT. — The defense belittles the testimony of Hernando Oro pointing
to accused Willie Amaguin as the gunman as it stands "singly and alone," in contrast to the
declaration of the defense witnesses exonerating Willie and Gildo. While the defense may
have presented a number of witnesses who, as the trial court puts it, "virtually `sang' in a
chorus that the killers were (Celso and Danny Amaguin and a certain Ernie Ortigas) not the
two accused herein (Willie and Gildo Amaguin)," still the trial judge had the opportunity, as
well as the right and responsibility, to assess their credibility - just like all other witnesses.
After all, there is no law which requires that the testimony of a single witness needs
corroboration except when the law so expressly requires. As it is often said, witnesses are
to be weighed, not numbered. If credible and positive, the testimony of a single witness is
su cient to convict. Indeed the determination of the credibility of witnesses is the trial
court's domain, hence, we respect its factual findings.
3. ID.; ID.; ALIBI; CANNOT PROSPER UNLESS ACCUSED PROVED THAT IT WAS
PHYSICALLY IMPOSSIBLE FOR HIM TO BE AT THE SCENE OF THE CRIME. — For, even the
respective defenses of the accused, i.e., accused Willie Amaguin's alibi that he did not
participate in the fray and that he was in the nearby house of his uncle drinking with his
friends, and accused Gildo Amaguin's denial that he was unarmed but later forced to hurl
stones to defend himself, are without sound basis. Alibi is one of the weakest defenses
that can be resorted to especially where there is direct testimony of an eyewitness, not
only because it is inherently weak and unreliable but also because of the ease of its
fabrication and the di culty of checking or rebutting it. Besides, alibi to be believed must
be supported by the physical impossibility of the accused to have been at the scene of the
crime. And as in an alibi, a denial, if unsubstantiated by clear and convincing evidence, is a
negative and self-serving evidence which deserves no weight in law and cannot be given
greater evidentiary value over the testimony of credible witnesses who testify on
a rmative matters. Thus, as between a mere denial of the accused and the positive
identi cation and detailed declarations of the prosecution witnesses, the trial court
committed no error in according heavier weight to the latter.
4. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY; RULE FOR
APPRECIATION THEREOF. — While we have already ruled that even a frontal attack can be
treacherous, as when it is sudden and unexpected and the victim is unarmed, here, it
appears that the aggressors did not employ means tending directly and specially to insure
the execution of the crime without risk to themselves arising from the defense which the
offended parties might make. It must be noted that the assailants attacked a group of six
(6) individuals who could have been armed. It is highly probable that at least one of those
attacked could offer resistance and could put the lives of the aggressors in danger, as
what indeed happened when accused-appellant Gildo Amaguin and his cousin Danny
suffered injuries as a result of the ght which, from all indications, ended in a free-for-all.
That Paci co sustained 15 stab wounds and a gunshot wound, and Diosdado, ten stab
wounds and a bullet wounds, does not necessarily mean that treachery attended the
killings. As already adverted to, for treachery to be appreciated, the offender must employ
means, methods, or forms in the commission of the crime which tend directly and
specially to insure its execution without risk to himself arising from the defense which the
offended party might make. Here, there is serious doubt.
5. ID.; CONSPIRACY; CONSTRUED IN CASE AT BAR. — On the third assigned
error, i.e., that there was conspiracy between Gildo and Celso, who remains at large, the
evidence shows how Celso and Gildo simultaneously assaulted the Oro brothers. While
Celso lunged at Paci co, Gildo aimed his slingshot at Danilo who was hit by its dart, and
immediately attacked Paci co with a knife. Under the circumstances, it is evident that
Gildo and Celso acted in unison and cooperated with each other toward the
accomplishment of a common felonious objective. Certainly, there was conspiracy
between the brothers Gildo and Celso, and it was not necessary to prove a previous
agreement to commit the crime since from their overt acts, it was clear that they acted in
concert in the pursuit of their unlawful design.
6. ID.; AGGRAVATING CIRCUMSTANCES; ABUSE OF SUPERIOR STRENGTH;
APPRECIATED IN CASE AT BAR. — In Crim. Case No. 8041, where Willie mortally shot
Diosdado, he should be liable for homicide. And, since Diosdado was already on bended
knees and pleading for his life when fatally shot, the aggravating circumstance of abuse of
superior strength, although not alleged in the information but proven during the trial, may
be considered as a generic aggravating circumstance. In Crim. Case No. 8042, where Willie
shot Paci co while lying prostrate already with numerous fatal stab wounds, Willie should
be liable for frustrated homicide it appearing that the gunshot wound was not fatal
although his intent to kill was evident. Likewise, the aggravating circumstance of abuse of
superior strength may be appreciated as a generic aggravating circumstance.
7. ID.; MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER; ELEMENTS;
PRESENT IN CASE AT BAR. — We agree with accused-appellants' view that voluntary
surrender should be appreciated in their favor. While it may have taken both Willie and
Gildo a week before turning themselves in, the fact is, they voluntarily surrendered to the
police authorities before arrest could be effected. For voluntary surrender to be
appreciated as a mitigating circumstance, the following elements must be present: (a) the
offender has not been actually arrested; (b) the offender surrendered himself to a person
in authority; and, (c) the surrender must be voluntary. All these requisites appear to have
attended their surrender.
DECISION

BELLOSILLO , J : p
The coup de main on the Oro brood sent two brothers to the mortuary and a third to
medical care. The bloodbath resulted in the brothers Willie, Gildo and Celso, all surnamed
Amaguin, being charged with the murder of the Oro brothers Paci co and Diosdado. Willie
and Gildo went through trial while Celso to this date remains a fugitive.cdrep
The culpability of the Amaguin brothers was recounted by Hernando Oro, a younger
brother of Paci co and Diosdado. Hernando narrated that in the afternoon of 24 May
1977, he and his brothers Diosdado and Danilo, brother-in-law Rafael Candelaria, an rst
cousin Sergio Argonzola were invited by their eldest brother Paci co to the latter's house
in the interior of Divinagracia Street, La Paz, Iloilo City, for a small gathering to celebrate
the town esta. 1 At about ve o'clock in the afternoon, after partaking of the meager
preparations put together by Paci co, he (Hernando) and his companions decided to
leave. They were accompanied by their host to the plaza where they could get a ride. cdll
On their way, while traversing Divinagracia Street, Paci co was called by accused
Celso Amaguin: "Pare, come her." But Paci co answered: "Pare, not yet because I have to
conduct my guests rst." Immediately, Celso, with a butcher's knife in hand, rushed
towards Paci co. Gildo, Celso's younger brother, with a knife tucked to his waist, followed
with a slingshot known as "Indian pana" or "Indian target". While Gildo aimed the dart from
his slingshot at Danilo, which hit the latter on the chest, Celso hacked Paci co. Gildo then
stabbed Diosdado with a knife. Thereafter, Willie, the eldest of the Amaguin brothers,
appeared with a handgun and successively shot the brothers Paci co, Diosdado and the
eeing Danilo. Diosdado, own kneeling, gasping for breath and pleading for his life, was
again shot by Willie who next fired anew at Pacifico. Meanwhile, Gildo and Celso repeatedly
stabbed Pacifico who already lying prostrate and defenseless. 2
Danilo Oro, the youngest of the Oros, likewise testi ed. He said that at around ve
o'clock in the afternoon of 24 May 1977, while walking along Divinagracia Street on
their way to the plaza for a ride home with his three brothers and two others, they were
waylaid by Celso, Willie and Gildo, their cousin Danny, all surnamed Amaguin, and
several others. Celso placed an arm on the shoulder of Paci co and stabbed him with a
knife. 3 Then there was a clash between the two groups. In a split second, he (Danilo)
was hit on the left chest by a dart from the slingshot of Gildo whom he saw aiming at
him. He (Danilo) pulled the dart from his chest and ran away but was hit on the lips by a
bullet. Then he was pushed by Hernando to seek cover. 4
Rafael Candelaria, a brother-in-law of the Oros, also took the witness stand. His
version was that while he, his brothers-in-law and one Sergio Argonzola were walking along
Divinagracia Street that afternoon, two men approached them. Without any provocation,
one suddenly stabbed him. After being hit on the left arm, he immediately ed to the plaza
where he agged down a passing cab to take him to the hospital. He did not see what
happened next to his companions. 5
The defense however maintains that it was the Oro brothers who started the ght.
Accused Gildo Amaguin recounted that on 24 May 1977, at about ve o'clock in the
afternoon, Paci co with ve others went to their house in Divinagracia Street, La Paz, Iloilo
City, and approached his brother Celso, who was waiting for his wife at the foot of the
stairs. While Paci co was talking to Celso, a companion of Paci co came forward, held
Celso by the shoulder and said: "This is the bravest man in Divinagracia Street, the
Amaguin." Meanwhile, another companion of Pacifico gave Celso a flying kick that sent him
reeling. Gildo then went down the house shouting: "Don't ght." However, the attackers
drew their knives and slingshots. In return, Celso pulled out his knife. Since one of the
companions of Paci co lunged at him, Gildo retreated to the other side of the road and
threw stones at his attackers. Meanwhile, he saw his cousin Danny hit Danilo Oro with a
dart from a slingshot. But later Danny himself was stabbed from behind by one of
Paci co's companions. Then Ernie Ortigas, a guest of Celso, emerged from the Amaguin
residence holding a revolver. Ernie initially red three warning shots, after which he
successively shot Paci co and a person who tried to stab the former as well as an
unidenti ed companion of Paci co. Later, both Ernie Ortigas and Celso Amaguin escaped
towards the railway tracks. 6 The following day, he was brought by his uncle to the PC
authorities in Fort San Pedro for "safe-keeping" and turned over to the local police after a
week. LLpr
The story of Gildo was con rmed by Vicente Belicano 7 and Nilda Tagnong, 8 long-
time residents of Divinagracia Street, and Nenita Amaguin, mother of the accused brothers,
who even a rmed that her son Celso was indeed troublesome, 9 but added that Willie
"never had any brush with the law."10
On his part, Willie related that he was in the house of his uncle along Divinagracia
Street that afternoon drinking with some friends. He left the group after hearing some
explosions coming from the direction of his mother's house and then seeing his cousin
Danny, with a stab wound at the back, being taken by two policemen, and his wounded
brother Gildo running towards the plaza. Thus, he went to his mother's residence to nd
out what happened. But when he got there, the incident had already ended. As a
consequence, he was told by his mother to look for his two brothers who were wounded in
the ght and to take them to the hospital. 1 1 he turned himself in after ve days, upon
learning that law enforcers were looking for him.
Ulpiano Vencer, Rogelio de la Paz and Pat Jereos all con rmed that accused Willie
only left their gathering after the explosions were heard, and only after seeing his wounded
brother Gildo and his cousin Danny, who was in the company of two policemen, pass by.
Perla Belleza, a vegetable vendor in the La Paz Public Market, also testi ed that after
hearing six explosions, she saw an unidenti ed man with a revolver running away from the
scene of the crime, followed by accused Celso who was holding a knife. She was certain
that the unidenti ed man was not accused Willie as the latter was very well known to her,
she being a former neighbor of the Amaguins. 12
Dr. Tito Doromal, Asst. Medico-Legal O cer, Iloilo Metropolitan District Command,
INP, conducted an autopsy on Paci co and Diosdado. He declared that out of the 15 stab
wounds and one gunshot wound Paci co sustained, ve of the stab wounds were fatal.
With regard to Diosdado, four (4) stab wounds, out of ten (10), and the lone bullet wound
he had sustained were considered fatal. 13
After a joint trial, and nding the version of the prosecution to be more credible, the
then Court of First Instance of Iloilo, Br. II, 1 4 found the accused Gildo Amaguin, also known
as "Tigib," guilty beyond reasonable doubt of the crime of Murder, and . . . sentenced (him)
to Reclusion Perpetua, both in Criminal Cases Nos. 8041 and 8042, together with all the
accessory penalties, and to pay the costs."
As regards Willie Amaguin alias "Tikboy," the trial court found him guilty "as
accomplice in both Criminal Cases Nos. 8041 and 8042, and . . . sentenced (him) to an
indeterminate penalty of Seventeen (17) Years, Four (4) Months, and One (1) Day to Twenty
(20) Years each in said cases together with all the accessory penalties, and to pay the
costs." cdll
Both accused were "further sentenced to indemnify the heirs of the late Paci co Oro
and Diosdado Oro, jointly and severally in the total sum of P24,000.00 as death
compensation; P20,000.00 (as) moral damages; P10,000.00 (as) exemplary damages;
and P5,000.00 for burial expenses, in both Criminal Cases Nos. 8041 and 8042."
In this appeal, accused Willie Amaguin and Gildo Amaguin claim that the court a quo
erred: (a) in categorizing the offense/s as murder; (b) in nding Willie Amaguin to be the
person involved in the incident; (c) in holding that there was conspiracy between the
brothers Gildo and Celso Amaguin (the latter is at large); (d) in nding Gildo Amaguin to be
armed with a knife and an Indian target when he was only armed with stones; and, (e) even
assuming the accused to be guilty, in not holding them responsible for their individual acts,
and in not appreciating the mitigating circumstance of voluntary surrender. 15
Before disposing of the other issues raised by appellants, we resolve the second
and fourth assigned errors rst to determine which of the two con icting versions of the
incident deserves credence. Their resolution rests upon the credibility of the witnesses
who have come forward, a matter addressed to the sound judgment of the trial court
which is in a better position to decide them, it having heard the witnesses and observed
their deportment and manner of testifying during the trial. Consequently, the assessment
of the trial judge is usually received with respect, if not conclusiveness, on appeal unless
there is a showing of arbitrariness. Always, this has been the familiar rule. 16
In the instant case, the trial court has accepted as credible the testimonies of
Hernando and Danilo Oro who positively identi ed accused Celso and Gildo Amaguin as
having started the assault on the Oro brothers with the use of a knife and an "Indian pana,"
and accused Willie Amaguin as the gunwielder who shot the brothers Paci co, Diosdado
and Danilo during the fray. We see no reason to disregard the assessment. We simply
cannot set aside the factual ndings of the trial court absent any showing of
capriciousness on its part.
The defense belittles the testimony of Hernando Oro pointing to accused Willie
Amaguin as the gunman as it stands "singly and alone," in contrast to the declaration of the
defense witnesses exonerating Willie and Gildo. While the defense may have presented a
number of witnesses who, as the trial court puts it, "virtually 'sang' in a chorus that the
killers (Celso and Danny Amaguin and a certain Ernie Ortigas) not the two accused herein
(Willie and Gildo Amaguin)," 1 7 still the trial judge had the opportunity, as well as the right
and responsibility, to assess their credibility — just like all other witnesses. After all, there
is no law which requires that the testimony of a single witness needs corroboration except
when the law so expressly requires. As it is often said, witnesses are to be weighed, not
numbered. If credible and positive, the testimony of a single witness is su cient to
convict. 1 8 Indeed the determination of the credibility of witnesses is the trial court's
domain, hence, we respect its factual findings.
For, even the respective defenses of the accused, i.e., accused Willie Amaguin's alibi
that he did not participate in the fray and that he was in the nearby house of his uncle
drinking with his friends, and accused Gildo Amaguin's denial that he was unarmed but
later forced to hurl stones to defend himself, are without sound basis. Alibi is one of the
weakest defenses that can be resorted to especially where there is direct testimony of an
eyewitness, not only because it is inherently weak and unreliable but also because of the
ease of its fabrication and the di culty of checking and rebutting it. 1 9 Besides, alibi to be
believed must be supported by the physical impossibility of the accused to have been at
the scene of the crime. 2 0 And as in an alibi, a denial, if unsubstantiated by clear and
convincing evidence, is a negative and self-serving evidence which deserves no weight in
law and cannot be given greater evidentiary value over the testimony of credible witnesses
who testify on affirmative matters. 2 1 Thus, as between mere denial of the accused and the
positive identi cation and detailed declarations of the prosecution witnesses, the trial
court committed no error in according heavier weight to the latter. 22
Hence, this version of the prosecution prevails: Celso and Gildo, together with
others, attacked the Oros. During the fray, Gildo was armed with a knife and an "Indian
target." And just as they were about to nish off the Oro brothers, Willie, the eldest of the
Amaguins, appeared with a revolver and delivered the coup de grace.
The factual setting having been settled, we now go to the rst assigned error, i.e.,
that the lower court erred in categorizing the offense as murder there being no treachery
since "the combatants were face to face" and "[c]onfronting each other frontally . . . that
each will know each other's next move." 2 3 Except for appellants' premise, the argument
has merit. The killing of Pacifico and Diosdado cannot be qualified by treachery.
While we have already ruled that even a frontal attack can be treacherous, as when it
is sudden and unexpected and the victim is unarmed, 2 4 here, it appears that the
aggressors did not employ means tending directly and specially to ensure the execution of
the crime without risk to themselves arising from the defense which the offended parties
might take.
It must be noted that the assailants attacked a group of six (6) individuals who
could have been armed. It is highly probable that at least one of those attacked could offer
resistance and could put the lives of the aggressors in danger, as what indeed happened
when accused-appellant Gildo Amaguin and his cousin Danny suffered injuries as a result
of the ght which, from all indications, ended in a free-for-all. That Paci co sustained 15
stab wounds and a gunshot wound, and Diosdado, ten stab wounds and a bullet wound,
does not necessarily mean that treachery attended the killings. As already adverted to, for
treachery to be appreciated, the offender must employ means, methods, or forms in the
commission of the crime which tend directly and specially to insure its execution without
risk to himself arising from the defense which the offended party might make. 2 5 Here,
there is serious doubt.
On the third assigned error, i.e., that there was conspiracy between Gildo and Celso,
who remains at large, the evidence shows how Celso and Gildo simultaneously assaulted
the Oro brothers. While Celso lunged at Paci co, Gildo aimed his slingshot at Danilo who
was hit by its dart, and immediately attacked Paci co with a knife. Under the
circumstances, it is evident that Gildo and Celso acted in unison and cooperated with each
other toward the accomplishment of a common felonious objective. Certainly, there was
conspiracy between the brothers Gildo and Celso, and it was not necessary to prove a
previous agreement to commit the crime since from their overt acts, it was clear that they
acted in concert in the pursuit of their unlawful design.
cdll
However, it was error to rule that accused Willie was an accomplice to his brothers.
There being no su cient evidence to link him to the conspiracy, he should be liable for the
natural and logical consequence of his own felonious acts. Hence, we take exception to the
conclusion of the trial court that Paci co and Diosdado did not die due to the gunshot
wounds in icted by Willie. Dr. Tito Doromal, the medico-legal o cer who autopsied the
bodies of Paci co and Diosdado, testi ed that while the gunshot wound sustained by
Pacifico was not fatal, that suffered by Diosdado was fatal.26
Consequently, in Crim. Case No. 8041, where Willie mortally shot Diosdado, he
should be liable for homicide. And, since Diosdado was already on bended knees and
pleading for his life when fatally shot, the aggravating circumstance of the abuse of
superior strength, although not alleged in the information but proven during the trial, may
be considered as a generic aggravating circumstance. 27
In Crim. Case No. 8042, where Willie shot Paci co while lying prostrate already with
numerous fatal stab wounds, Willie should be liable for frustrated homicide it appearing
that the gunshot wound was not fatal although his intent to kill was evident. Likewise, the
aggravating circumstance of abuse of superior strength may be appreciated as a generic
aggravating circumstance.
Finally, we agree with accused-appellants' view that voluntary surrender should be
appreciated in their favor. While it may have taken both Willie and Gildo a week before
turning themselves in, the fact is, they voluntarily surrendered to the police authorities
before arrest could be effected. For voluntary surrender to be appreciated as a mitigating
circumstance, the following elements must be present: (a) the offender has not been
actually arrested; (b) the offender surrendered himself to a person in authority; and (c) the
surrender must be voluntary. 2 8 All these requisites appear to have attended their
surrender. prcd
Now, we turn to the penalties.

In Crim. Cases Nos. 8041 and 8042, Gildo Amaguin is guilty of two (2) separate
crimes of homicide for the death of Diosdado and Paci co, respectively. The penalty
prescribed by law for homicide is reclusion temporal. 2 9 Applying the Indeterminate
Sentence Law, and appreciating the mitigating circumstance of voluntary surrender with no
aggravating circumstance, the maximum penalty to be imposed on accused Gildo
Amaguin for each of the homicide he has committed, which he must serve successively,
should be taken from the minimum of the imposable penalty, which is reclusion temporal
the range of the minimum period of which is twelve (12) years and one (1) day to fourteen
(14) years and eight (8) months, while the minimum should be taken from the penalty next
lower in degree, which is prision mayor the full range of which is six (6) years and one (1)
day to twelve (12) years, in any of its periods.
In Crim. case No. 8041, Willie Amaguin is guilty of homicide aggravated by abuse of
superior strength but offset by the mitigating circumstance of voluntary surrender, and in
Crim. Case No. 8042, he is guilty of frustrated homicide likewise aggravated by abuse of
superior strength but offset by voluntary surrender. For the homicide, applying the
Indeterminate Sentence Law and taking into account the mitigating circumstance of
voluntary surrender which, as earlier mentioned, offsets the aggravating circumstance of
abuse of superior strength, the maximum penalty should be taken from the medium of the
imposable penalty, which is reclusion temporal the range of the medium period of which is
fourteen (14) years eight (8) months and one (1) day to seventeen (17) years and four (4)
months, while the minimum should be taken from the penalty next lower in degree which is
prision mayor in any of its periods.
For the frustrated homicide, the imposable penalty is one degree lower than the
penalty prescribed by law for the consummated offense, and one degree lower than
reclusion temporal is prision mayor. Applying the Indeterminate Sentence Law and the
attending circumstances which offset each other, the maximum penalty to be imposed
should be taken from the medium of the imposable penalty, which is prision mayor the
range of the medium period of which is eight (8) years and one (1) day to ten (10) years,
while the minimum should be taken from the penalty next lower in degree, which is prision
correccional the full range of which is six (6) months and one (1) day to six (6) years, in any
of its periods. Cdpr
WHEREFORE, the decision of the court a quo nding the accused-appellants WILLIE
AMAGUIN and GILDO AMAGUIN guilty in Crim. Cases Nos. 8041 and 8042 is MODIFIED as
follows:
(a) accused-appellant WILLIE AMAGUIN is found guilty of HOMICIDE in Crim.
Case No. 8041 and is sentenced to six (6) years, two (2) months and one (1) day of prision
mayor minimum as minimum, to fourteen (14) years, eight (8) months and twenty (20)
days of reclusion temporal medium as maximum, and of FRUSTRATED HOMICIDE in Crim.
Case No. 8042 and is sentenced to six (6) months and twenty (20) days of prision
correccional minimum as minimum, to eight (8) years, four (4) months and ten (10) days of
prision mayor as maximum, to be served successively;.
(b) accused-appellant GILDO AMAGUIN is found guilty of two (2) separate
crimes of HOMICIDE in Crim. Cases Nos. 8041 and 8042 and is sentenced to six (6) years
two (2) months and one (1) day of prision mayor minimum as minimum, to twelve (12)
years, six (6) months and ten (10) days of reclusion temporal minimum as maximum, for
each homicide, to be served successively;
(c) in Crim. Case N. 8041, accused-appellants WILLIE AMAGUIN and GILDO
AMAGUIN are declared jointly and severally liable to the heirs of Diosdado Oro for
P50,000.00 as civil indemnity consistent with prevailing jurisprudence; and Cdpr
(d) in Crim. case No. 8042, accused-appellant GILDO AMAGUIN is liable to the
heirs of Pacifico Oro for P50,000.00 as civil indemnity.
Costs against accused-appellants WILLIE AMAGUIN and GILDO AMAGUIN in both
cases.
SO ORDERED.
Cruz, Davide, Jr. and Quiason, JJ., concur.
Footnotes
1. TSN, 16 January 1978, pp. 36-37.
2. Id., pp. 38-41.

3. Id., 17 October 1977, pp. 4-6, 27.
4. Id., pp. 8-11, 28-34.
5. Id., 23 February 1978, pp. 59-60.
6. Id., 14 September 1978, pp. 99-105.
7. Id., 22 August 1978, pp. 23-27.

8. Id., pp. 39-43.
9. Id., 23 October 1978, p. 120.

10. Id., p. 121.
11. Id., 15 January 1979, pp. 5-7.
12. Id., 22 August 1978, pp. 35-37.
13. Id., 6 December 1977, pp. 2-6; Exhs. "A" and "B".
14. Judge Midpantao L. Adil, presiding.
15. Brief for Accused-Appellants, p. 1.
16. People v. Deuna, G.R. No. 87555, 16 November 1993; People v. Clapano, G.R. No.
106525, 8 November 1993; People v. Ramilla, G.R. No. 101435, 8 November 1993;
People v. Remollo, G.R. No. 104498, 22 October 1993; People v. Sencil, G.R. Nos.
105959-60, 12 October 1993; People v. Salamat, G.R. No. 103295, 20 August 1993.
17. Decision of the trial court, p. 7.

18. People v. Nimo, G.R. No. 92533, 5 October 1993, citing People v. Villalobos, G.R. No.
71526, 27 May 1992; 209 SCRA 304, 315.
19. People v. Amador, G.R. Nos. 100456-59, 10 September 1993; People v. Cortes, G.R. No.
105010, 3 September 1993.
20. Id.; People v. Remollo, G.R. No. 104498, 22 October 1993.
21. People v. Sencil, G.R. Nos. 105959-60, 12 October 1993.
22. People v. Gerona, G.R. No. 100230, 8 November 1993.
23. Brief for Accused-Appellants, p. 42.
24. People v. Javar, G.R. No. 82769, 6 September 1993, citing People v. Cruz, G.R. No.
94375, 4 September 1992; 213 SCRA 1992.
25. Art. 14, par. 16, Revised Penal Code.

26. See Note 13.
27. See People v. Amato, No. L-28273, 18 January 1982; 111 SCRA 39.
28. People v. Canamo, G.R. No. 62043, 13 August 1985; 138 SCRA 141.
29. Art. 249, Revised Penal Code.

EN BANC
[G.R. No. 45284. December 29, 1936.]
THE PEOPLE OF THE PHILIPPINE ISLANDS , plaintiff-appellee, vs .

FRANCISCO DE LA CRUZ, ET AL. , defendants. FRANCISCO DE LA
CRUZ , appellant.
Marciano Sayoc for appellant.

Undersecretary of Justice Melencio for appellee.
SYLLABUS
1. CRIMINAL LAW; ROBBERY; PENALTY. — The facts charged constitute the

crime of robbery de ned in article 294 of the Revised Penal Code and punished by
prision correccional to prision mayor in its medium period.
2. ID.; ID.; HABITUAL DELINQUENCY AND RECIDIVISM. — The allegations of
the information with respect to the appellant F. de la C., are not su cient to consider
him a habitual delinquent (People vs. Venus, p. 435, ante). However, the facts alleged in
this respect constitute the aggravating circumstance of recidivism.
3. ID.; ID.; CONFESSION OF GUILT. — The appellant's plea of guilty does not
constitute a mitigating circumstance under article 13, sub-section 7, of the Revised
Penal Code, which requires that this plea be spontaneous and that it be made prior to
the presentation of evidence by the prosecution.
4. ID.; ID.; ID. — The confession of guilt, although subsequent to the
consummation of the crime and entirely alien to its development, constitutes a cause
for the mitigation of the penalty because, as an act of repentance and respect for the
law, it indicates a moral disposition in the accused favorable to his reform. These
bene ts are not deserved by the accused who submits to the law only after the
presentation of some evidence for the prosecution, believing that in the end the trial will
result in his conviction by virtue thereof.
DECISION
AVANCEÑA , C.J : p
This case was prosecuted upon the following information:

"That on or about the 30th day of May, 1936, in the City of Manila,
Philippine Islands, the said accused Francisco de la Cruz, Fernando Legaspi and
three other persons whose identities are still unknown, confederating together and
helping one another, did then and there wilfully, unlawfully and feloniously, and
with intent of gain, attack, assault and use personal violence upon one Yu Wan,
by then and there giving him blows with his st on the face and other parts of the
body, thereby in icting upon him physical injuries which have required and will
require medical attendance for a period of more than one but less than nine days
and have prevented and will prevent the said Yu Wan from engaging in his
customary labor for the same period of time; and afterwards took, stole and
carried away with him without the consent of the owner thereof the following
personal property, to wit:
Twenty-six (P26) pesos in cash, consisting of
different denominations P26.00
belonging to said Yu Wan, to the damage and prejudice of the said owner in the said
sum of P26, Philippine currency.
"That the said accused Francisco de la Cruz is a habitual delinquent under
the provisions of the Revised Penal Code, he having been previously convicted
once of the crime of theft and twice of the crime of estafa, by virtue of nal
judgments rendered by competent courts, having been last convicted on July 24,
1933."
Upon arraignment, the accused pleaded not guilty.
During the trial and after two witnesses for the prosecution had testi ed, the
accused withdrew for the prosecution had testi ed, the accused withdrew their plea of
not guilty, substituting it by that of guilty. The court sentenced Francisco de la Cruz to
six months and one day of prision correccional and, considering him a habitual
delinquent, sentenced him furthermore to the additional penalty of six years and one
day of prision mayor. The other accused Fernando Legaspi was sentenced to ten
months of prision correccional. Francisco de la Cruz appealed from this sentence.
The facts charged constitute the crime of robbery de ned in article 294 of the
Revised Penal Code and punished by the penalty of prision correccional to prision
mayor in its medium period.
The allegations of the information with respect to the appellant Francisco de la
Cruz are not su cient to consider him a habitual delinquent (People vs. Venus, p. 435,
ante). However, the facts alleged in this respect constitute the aggravating
circumstance of recidivism.
On the other hand, the appellant's plea of guilty does not constitute a mitigating
circumstance under article 13, subsection 7, of the Revised Penal Code, which requires
that this plea be spontaneous and that it be made prior to the presentation of evidence
by the prosecution. The confession of guilt, although subsequent to the consummation
of the crime and entirely alien to its development, constitutes a cause for the mitigation
of the penalty, not because it is a circumstance modifying criminal responsibility
already incurred and in the evolution of which it has not intervened absolutely, but
because, as an act of repentance and respect for the law, it indicates a moral
disposition in the accused favorable to his reform. It is clear that these bene ts are not
deserved by the accused who submits to the law only after the presentation of some
evidence for the prosecution, believing that in the end the trial will result in his
conviction by virtue thereof.
Wherefore, eliminating the additional penalty by reason of habitual delinquency,
considering the presence of an aggravating circumstance in the commission of the
crime without any mitigating circumstance, and applying the Indeterminate Sentence
Law, the appellant is sentenced to the penalty of from six months of arresto mayor, as
minimum, to six years, ten months and one day of prision mayor, as maximum, affirming
the appealed sentence in all other respects, with the costs. So ordered.
Villa-Real, Abad Santos, Imperial, Diaz, Laurel and Concepcion, JJ., concur.

SECOND DIVISION
[G.R. No. 140937. February 28, 2001.]
EXUPERANCIO CANTA , petitioner, vs . PEOPLE OF THE PHILIPPINES ,

respondent.
DECISION
MENDOZA , J : p
This is a petition for review on certiorari of the decision, dated August 31, 1999, and
resolution, dated November 22, 1999, of the Court of Appeals, 1 which a rmed the
decision of the Regional Trial Court, Branch 25, Maasin, Southern Leyte, 2 nding petitioner
Exuperancio Canta guilty of violation of P.D. No. 533, otherwise known as the Anti-Cattle
Rustling Law of 1974, and sentencing him to ten (10) years and one (1) day of prision
mayor, as minimum, to twelve (12) years, ve (5) months, and eleven (11) days of reclusion
temporal medium, as maximum, and to pay the costs. caCSDT
The information against petitioner alleged:

That on or about March 14, 1986, in the municipality of Malitbog, province
of Southern Leyte, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused with intent to gain, did then and there, willfully,
unlawfully and feloniously, take, steal and carry away one (1) black female cow
belonging to Narciso Gabriel valued at Three Thousand Pesos (P3,000.00)
without the knowledge and consent of the aforesaid owner, to his damage and
prejudice in the amount aforestated.
CONTRARY TO LAW. 3
The prosecution established the following facts:

Narciso Gabriel acquired from his half-sister Erlinda Monter a cow, subject of the
case, upon its birth on March 10, 1984. The cow remained under the care of Erlinda Monter
for sometime. Subsequently, Narciso gave the care and custody of the animal, rst, to
Generoso Cabonce, from October 24, 1984 to March 17, 1985; then to Maria Tura, from
May 17, 1985 to March 2, 1986; and lastly, to Gardenio Agapay, from March 3, 1986 until
March 14, 1986 when it was lost. 4 It appears that at 5 o'clock in the afternoon of March
13, 1986, Agapay took the cow to graze in the mountain of Pilipogan in Barangay
Candatag, about 40 meters from his hut. However, when he came back for it at past 9
o'clock in the morning of March 14, 1986, Agapay found the cow gone. He found hoof
prints which led to the house of Filomeno Vallejos. He was told that petitioner Exuperancio
Canta had taken the animal. 5
Upon instructions of the owner, Gardenio and Maria Tura went to recover the animal
from petitioner's wife, but they were informed that petitioner had delivered the cow to his
father, Florentino Canta, who was at that time barangay captain of Laca, Padre Burgos,
Southern Leyte. Accordingly, the two went to Florentino's house. On their way, they met
petitioner who told them that if Narciso was the owner, he should claim the cow himself.
Nevertheless, petitioner accompanied the two to his father's house, where Maria
recognized the cow. As petitioner's father was not in the house, petitioner told Gardenio
and Maria he would call them the next day so that they could talk the matter over with his
father.
However, petitioner never called them. Hence, Narciso Gabriel reported the matter
to the police of Malitbog, Southern Leyte. 6 As a result, Narciso and petitioner Exuperancio
were called to an investigation. Petitioner admitted taking the cow but claimed that it was
his and that it was lost on December 3, 1985. He presented two certi cates of ownership,
one dated March 17, 1986 and another dated February 27, 1985, to support his claim (Exh.
B). 7
Narciso presented a certi cate of ownership issued on March 9, 1986, signed by the
municipal treasurer, in which the cow was described as two years old and female. On the
reverse side of the certi cate is the drawing of a cow with cowlicks in the middle of the
forehead, between the ears, on the right and left back, and at the base of the forelegs and
hindlegs (Exhs. C, C-1 to 4). 8 All four caretakers of the cow identi ed the cow as the same
one they had taken care of, based on the location of its cowlicks, its sex and its color.
Gardenio described the cow as black in color, with a small portion of its abdomen
containing a brownish cowlick, a cowlick in the middle of the forehead, another at the back
portion between the two ears, and four cowlicks located near the base of its forelegs and
the hindlegs. 9
On the other hand, petitioner claimed he acquired the animal under an agreement
which he had with Pat. Diosdado Villanueva, that petitioner take care of a female cow of
Pat. Villanueva in consideration for which petitioner would get a calf if the cow produced
two offsprings. Petitioner claimed that the cow in question was his share and that it was
born on December 5, 1984. This cow, however, was lost on December 2, 1985. Petitioner
said he reported the loss to the police of Macrohon, Padre Burgos, and Malitbog, on
December 3, 1985 (Exh. A and Exh. 1). 1 0
Petitioner said that on March 14, 1986, his uncle Meno told him that he had seen the
cow at Pilipogan, under the care of Gardenio Agapay. He, therefore, went to Pilipogan with
the mother cow on March 14, 1986 to see whether the cow would suckle the mother cow.
As the cow did, petitioner took it with him and brought it, together with the mother cow, to
his father Florentino Canta. 1 1 Maria Tura tried to get the cow, but Florentino refused to
give it to her and instead told her to call Narciso so that they could determine the
ownership of the cow. 1 2 As Narciso did not come the following day, although Maria did,
Florentino said he told his son to take the cow to the Municipal Hall of Padre Burgos.
Petitioner did as he was told. Three days later, Florentino and Exuperancio were called to
the police station for investigation. 1 3
Petitioner presented a Certi cate of Ownership of Large Cattle dated February 27,
1985 1 4 and a statement executed by Franklin Telen, janitor at the treasurer's o ce of the
municipality of Padre Burgos, to the effect that he issued a Certi cate of Ownership of
Large Cattle in the name of petitioner Exuperancio Canta on February 27, 1985 (Exh. 5). 1 5
The statement was executed at the preliminary investigation of the complaint led by
petitioner against Narciso. 1 6
Petitioner's Certi cate of Ownership was, however, denied by the municipal
treasurer, who stated that petitioner Exuperancio Canta had no Certi cate of Ownership of
Large Cattle in the municipality of Padre Burgos (Exhs. E, E-1 and 2). 1 7 On the other hand,
Telen testi ed that he issued the Certi cate of Ownership of Large Cattle to petitioner on
March 24, 1986 but, at the instance of petitioner, he (Telen) antedated it to February 27,
1985. 1 8
On January 24, 1997, the trial court rendered its decision nding petitioner guilty of
the offense charged. In giving credence to the evidence for the prosecution, the trial court
stated:
From the a davits and testimonies of the complainant and his witnesses,
it is indubitable that it was accused Exuperancio Canta who actually took the cow
away without the knowledge and consent of either the owner/raiser/caretaker
Gardenio Agapay. DcCHTa
That the taking of the cow by the accused was done with strategy and
stealth considering that it was made at the time when Gardenio Agapay was at
his shelter-hut forty (40) meters away tethered to a coconut tree but separated by
a hill.
The accused in his defense tried to justify his taking away of the cow by
claiming ownership. He, however, failed to prove such ownership. Accused
alleged that on February 27, 1985 he was issued a Certi cate of Ownership of
Large Cattle (Exh. 2-A) for his cow by Franklin Telen, a janitor at the O ce of the
Municipal Treasurer of Padre Burgos, a neighboring town. On rebuttal Franklin
Telen denied in Court the testimony of the accused and even categorically
declared that it was only on March 24, 1986 that the accused brought the cow to
the Municipal Hall of Padre Burgos, when he issued a Certi cate of Ownership of
Large Cattle for the cow, and not on February 27, 1985. Franklin Telen testi ed
thus:
"Q. According to the defense, this Certi cate of Ownership of Large Cattle
was issued by you on February 27, 1985. Is that correct?
A. Based on the request of Exuperancio, I antedated this.
(TSN, June 3, 1992, p. 7)"
The testimony of Franklin Telen was con rmed in open court by no less
than the Municipal Treasurer of Padre Burgos, Mr. Feliciano Salva. (TSN,
September 29, 1992, pp. 5-8).
If accused Exuperancio Canta were the owner of the cow in question, why
would he lie on its registration? And why would he have to ask Mr. Franklin Telen
to antedate its registry? It is clear that accused secured a Certi cate of Ownership
of Large Cattle (Exh. 2-A) by feigning and manipulation (Exhs. A & B) only after
the act complained of in the instant case was committed on March 14, 1986. His
claim of ownership upon which he justi es his taking away of the cow has no leg
to stand on. Upon the other hand, the complainant has shown all the regular and
necessary proofs of ownership of the cow in question. 1 9
The Court of Appeals a rmed the trial court's decision and denied petitioner's
motion for reconsideration. Hence, this petition. It is contended that the prosecution failed
to prove beyond reasonable doubt his criminal intent in taking the disputed cow.
First. Petitioner claims good faith and honest belief in taking the cow. He cites the
following circumstances to prove his claim:
1. He brought the mother cow to Pilipogan to see if the cow in question would
suckle to the mother cow, thus proving his ownership of it;

2. He compared the cowlicks of the subject cow to that indicated in the
Certi cate of Ownership of Large Cattle issued on February 27, 1985 in his
name, and found that they tally;
3. He immediately turned over the cow to the barangay captain, after taking it,
and later to the police authorities, after a dispute arose as to its ownership;
and
4. He led a criminal complaint against Narciso Gabriel for violation of P.D.

No. 533.
These contentions are without merit.

P.D. No. 533, §2(c) defines cattle-rustling as
. . . the taking away by any means, methods or scheme, without the
consent of the owner/raiser, of any of the abovementioned animals whether or
not for pro t or gain, or whether committed with or without violence against or
intimidation of any person or force upon things. EIDaAH
The crime is committed if the following elements concur: (1) a large cattle is taken;
(2) it belongs to another; (3) the taking is done without the consent of the owner; (4) the
taking is done by any means, methods or scheme; (5) the taking is with or without intent to
gain; and (6) the taking is accomplished with or without violence or intimidation against
person or force upon things. 2 0
These requisites are present in this case. First, there is no question that the cow
belongs to Narciso Gabriel. Petitioner's only defense is that in taking the animal he acted in
good faith and in the honest belief that it was the cow which he had lost. Second,
petitioner, without the consent of the owner, took the cow from the custody of the
caretaker, Gardenio Agapay, despite the fact that he knew all along that the latter was
holding the animal for the owner, Narciso. Third, petitioner falsi ed his Certi cate of
Ownership of Large Cattle by asking Telen to antedate it prior to the taking to make it
appear that he owned the cow in question. Fourth, petitioner adopted "means, methods, or
schemes" to deprive Narciso of his possession of his cow, thus manifesting his intent to
gain. Fifth, no violence or intimidation against persons or force upon things attended the
commission of the crime.
Indeed, the evidence shows that the Certi cate of Ownership of Large Cattle which
petitioner presented to prove his ownership was falsi ed. Franklin Telen, the janitor in the
municipal treasurer's o ce, admitted that he issued the certi cate to petitioner 10 days
after Narciso's cow had been stolen. Although Telen has previously executed a sworn
statement claiming that he issued the certi cate on February 27, 1985, he later admitted
that he antedated it at the instance of petitioner Exuperancio Canta, his friend, who
assured him that the cow was his. 2 1
Telen's testimony was corroborated by the certification of the municipal treasurer of
Padre Burgos that no registration in the name of petitioner was recorded in the municipal
records. Thus, petitioner's claim that the cowlicks found on the cow tally with that
indicated on the Certi cate of Ownership of Large Cattle has no value, as this same
certi cate was issued after the cow had been taken by petitioner from Gardenio Agapay.
Obviously, he had every opportunity to make sure that the drawings on the certi cate
would tally with that existing on the cow in question.
The fact that petitioner took the cow to the barangay captain and later to the police
authorities does not prove his good faith. He had already committed the crime, and the
barangay captain to whom he delivered the cow after taking it from its owner is his own
father. While the records show that he led on April 30, 1986 a criminal complaint against
Narciso Gabriel, the complaint was dismissed after it was shown that it was led as a
countercharge to a complaint earlier filed on April 16, 1986 against him by Narciso Gabriel.
Petitioner says that he brought a mother cow to see if the cow in question would
suckle to the mother cow. But cows frequently attempt to suckle to alien cows. 2 2 Hence,
the fact that the cow suckled to the mother cow brought by petitioner is not conclusive
proof that it was the offspring of the mother cow.
Second. Petitioner contends that even assuming that his Certi cate of Ownership is
"not in order," it does not necessarily follow that he did not believe in good faith that the
cow was his. If it turned out later that he was mistaken, he argues that he committed only a
mistake of fact but he is not criminally liable.
Petitioner's Certi cate of Ownership is not only "not in order." It is fraudulent, having
been antedated to make it appear it had been issued to him before he allegedly took the
cow in question. That he obtained such fraudulent certi cate and made use of it negates
his claim of good faith and honest mistake. That he took the cow despite the fact that he
knew it was in the custody of its caretaker cannot save him from the consequences of his
act. 2 3 As the Solicitor General states in his Comment:
If petitioner had been responsible and careful he would have rst veri ed
the identity and/or ownership of the cow from either Narciso Gabriel or Gardenio
Agapay, who is petitioner's cousin TSN, 9/12/91, p. 26). Petitioner, however, did
not do so despite the opportunity and instead rushed to take the cow. Thus, even
if petitioner had committed a mistake of fact he is not exempted from criminal
liability due to his negligence. 2 4
In any event, petitioner was not justi ed in taking the cow without the knowledge
and permission of its owner. If he thought it was the cow he had allegedly lost, he should
have resorted to the court for the settlement of his claim. Art. 433 of the Civil Code
provides that "The true owner must resort to judicial process for the recovery of the
property." What petitioner did in this case was to take the law in his own hands. 2 5 He
surreptitiously took the cow from the custody of the caretaker, Gardenio Agapay, which
act belies his claim of good faith.
For the foregoing reasons, we hold that the evidence fully supports the nding of
both the trial court and the Court of Appeals that accused-appellant is guilty as charged.
There is therefore no reason to disturb their findings.
However, the decision of the Court of Appeals should be modi ed in two respects.
IaHAcT
First, accused-appellant should be given the bene t of the mitigating circumstance

analogous to voluntary surrender. The circumstance of voluntary surrender has the
following elements: (1) the offender has not actually been arrested; (2) the offender
surrenders to a person in authority or to the latter's agent; and (3) the surrender is
voluntary. 2 6 In the present case, petitioner Exuperancio Canta had not actually been
arrested. In fact, no complaint had yet been led against him when he surrendered the cow
to the authorities. It has been repeatedly held that for surrender to be voluntary, there must
be an intent to submit oneself unconditionally to the authorities, showing an intention to
save the authorities the trouble and expense that his search and capture would require. 2 7
In petitioner's case, he voluntarily took the cow to the municipal hall of Padre Burgos to
place it unconditionally in the custody of the authorities and thus saved them the trouble of
having to recover the cow from him. This circumstance can be considered analogous to
voluntary surrender and should be considered in favor of petitioner.
Second, the trial court correctly found petitioner guilty of violation of §2(c) of P. D.
No. 533, otherwise known as the Anti-Cattle Rustling Law of 1974. However, it erred in
imposing the penalty of 10 years and 1 day of prision mayor, as minimum, to 12 years, 5
months and 11 days of reclusion temporal medium, as maximum. The trial court
apparently considered P. D. No. 533 as a special law and applied §1 of the Indeterminate
Sentence Law, which provides that "if the offense is punished by any other law, the court
shall sentence the accused to an indeterminate sentence, the maximum term of which
shall not exceed the maximum fixed by said law and the minimum shall not be less than the
minimum term prescribed by the same." However, as held in People v. Macatanda, 2 8 P. D.
No. 533 is not a special law. The penalty for its violation is in terms of the classi cation
and duration of penalties prescribed in the Revised Penal Code, thus indicating that the
intent of the lawmaker was to amend the Revised Penal Code with respect to the offense
of theft of large cattle. In fact, §10 of the law provides:
The provisions of Articles 309 and 310 of Act No. 3815, otherwise known
as the Revised Penal Code, as amended, pertinent provisions of the Revised
Administrative Code, as amended, all laws, decrees, orders, instructions, rules and
regulations which are inconsistent with this Decree are hereby repealed or
modified accordingly.
There being one mitigating circumstance and no aggravating circumstance in the

commission of the crime, the penalty to be imposed in this case should be xed in its
minimum period. Applying the Indeterminate Sentence Law, in relation to Art. 64 of the
Revised Penal Code, petitioner should be sentenced to an indeterminate penalty, the
minimum of which is within the range of the penalty next lower in degree, i.e., prision
correccional maximum to prision mayor medium, and the maximum of which is prision
mayor in its maximum period. DcSEHT
WHEREFORE, the decision of the Court of Appeals is AFFIRMED, with the

modi cation that petitioner Exuperancio Canta is hereby SENTENCED to suffer a prison
term of four (4) years and two (2) months of prision correccional maximum, as minimum,
to ten (10) years and one (1) day of prision mayor maximum, as maximum.
SO ORDERED.
Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ., concur.
Footnotes
1. Per Justice Jose L. Sabio, Jr. and concurred in by Justices Hector L. Hofilena and Omar
U. Amin.
2. Per Judge Numeriano R. Avila, Jr.

3. Records, p. 24.
4. TSN (Erlinda Monter), p. 4, Oct. 23, 1990; TSN (Generoso Cabonce), p. 5, Feb. 1, 1989;
TSN (Generoso Cabonce), pp. 4-5, April 4, 1989; TSN (Maria Tura), p. 7, Jan. 3, 1990;
TSN (Gardenio Agapay), p. 7, Oct. 15, 1987; TSN (Naraso Gabriel), p. 7, July 9, 1991.
5. TSN (Gardenio Agapay), p. 10, Nov. 25, 1987; TSN (Gardenio Agapay), pp. 3-5, Oct. 15,
1987.
6. TSN (Narciso Gabriel), p. 18, July 9, 1991.
7. TSN (Narciso Gabriel), pp. 3-4, July 10, 1991; Bill of Exhibits, p. 1.
8. Id., pp. 6-7; Id., p. 3.
9. TSN (Gardenio Agapay), p. 7, Oct. 15, 1987.
10. TSN (Exuperancio Canta), pp. 6-8, Sept. 12, 1991; Bill of Exhibit, pp. 1, 11.
11. TSN (Exuperancion Canta), pp. 10-11, 18-23, Sept. 12, 1991; TSN (Exuperancio Canta)
p. 6, Nov. 6, 1991.
12. TSN (Florentino Canta), pp. 6-8, Nov. 7, 1991.
13. Id., pp. 8-11.

14. Exh. J; Exh. 2.
15. Exh. J; Exh. 2.
16. TSN (Franklin Telen), p. 5, June 30, 1992.
17. TSN (Narciso Gabriel), pp. 8-9, July 10, 1991; Bill of Exhibits, p. 5.
18. TSN (Franklyn Telen), pp. 4-8, June 3, 1992.

19. Decision, pp. 3-4; Rollo, pp. 26-27.
20. People v. Bago, G.R. No. 122290, April 6, 2000.
21. TSN (Franklin Telen), pp. 9-10, June 3, 1992.
22. Louise Lindegaard Weinrich. MODULE: DESIGN AND MANAGEMENT OF ORGANIC
LIVESTOCK SYSTEMS <http//www.irs.aber.ac.uk/students/RS33020/Weinrich-
calfrearing.htm.[5] >
23. Rollo, p. 89.
24. Id., p. 90.
25. Manlapaz v. CA, 191 SCRA 795 (1990); De la Cruz v. Burgos, et al., 28 SCRA 977 (1969).
26. People v. Rebamontan, 305 SCRA 609 (1999).
27. Id.; People v. Santillana, 308 SCRA 104 (1999).
28. 109 SCRA 35 (1981).

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SECOND DIVISION

[Adm. Matter No. 384 . February 21, 1946.]

THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . NICOLAS

Jose Ma. Recto for appellant.

1. CRIMINAL LAW; HOMICIDE; EXEMPTING CIRCUMSTANCES; DEFENSE OF

In past dissenting and concurring opinions my view regarding the validity or

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[G.R. Nos. L-33466-67. April 20, 1983.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. MAMERTO NARVAEZ ,

The Solicitor General for plaintiff-appellee.

1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCE; NOT SATISFIED AS THE

The facts are summarized in the People's brief, as follows:

The aggression referred to by appellant is the angry utterance by deceased

The foregoing statements of appellant were never controverted by the

A review of the circumstances prior to the shooting as borne by the evidence

"Art. 536. In no case may possession be acquired through force or

Conformably to the foregoing provisions, the deceased had no right to destroy or

The reasonableness of the resistance is also a requirement of the justifying

This single evidence is not su cient to warrant appreciation of the aggravating

Likewise, We nd that passion and obfuscation attended the commission of the

WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF

I dissent. The self-defense of the Revised Penal Code refers to unlawful

GUTIERREZ, JR., J., dissenting:

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[G.R. No. 132547. September 20, 2000.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . SPO1 ERNESTO

The Solicitor General for plaintiff-appellee.

The Regional Trial Court of Kidapawan, Cotabato, convicted accused-appellant,

1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; FULFILLMENT OF DUTY;

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7. ID.; JUSTIFYING CIRCUMSTANCES; FULFILLMENT OF DUTY; THE RIGHT TO

In the aftermath of an incident where a certain Buenaventura Wapili 1 went berserk at

WHEREFORE, prescinding from the foregoing, judgment is hereby rendered

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6. TSN, 12 February 1997, p. 11.

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[G.R. No. 153287. June 30, 2008.]

NOEL GUILLERMO y BASILIANO , petitioner, vs . PEOPLE OF THE

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

1. Stab wound 1.5 x 3 cm with 6-8 cm depth [L]eft anterior chest

2. Stab wound 2 x 3 cm with 5 cm depth anterior neck just

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

A: I then stabbed him .

A: About three times as far as I can remember. 4 0 [Emphasis supplied] cEaDTA

The petitioner justifies the stabbing as an act of self-defense.

In the present case, the attack on the petitioner came as he intervened in a

(c) Neither Arnaldo, Joemar, or Babylou corroborated the claim of the

To determine the minimum of the indeterminate penalty , prision mayor has

47. Supra, note 31.

5. When there are two or more mitigating circumstances and no aggravating

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

THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. DOMINGO

Solicitor General Felix Q. Antonio, Assistant Solicitor General Antonlo A. Torres

Except for the unnecessary reference to the supposed statement of the

Affiants further sayeth none.

(SGD.) Ernesto Ogoc (SGD.) Juanito de la Cerna

ERNESTO OGOC JUANITO DE LA CERNA

SUBSCRIBED AND SWORN to before me this 19th day of September, 1966

(SGD.) Basilio T. Roque

2. Mrs. Napola (Mapola) testified at the preliminary investigation conducted by Basilio T.

El Tribunal Supremo declara: