FG.R NO. 176795 JUNE 30, 2008 SPS. CAROLINA AND REYNALDO JOSE (PETITIONER) -versus- SPS. LAUREANO AND PURITA SUAREZ

FACTS: Respondents had availed of petitioner Carolina Jose’s offer to lend money at daily interest of 1% to 2% which the latter increased to 5% and respondents were forced to accept due to their financial distress. They sought to nullify the 5% interest per day fixing claiming that the same were contrary to morals and done under vitiated consent. Thereafter, the petitioners herein filed cases of violation of BP22 against respondents where the latter filed motions to suspend hearings based on the existence of a prejudicial question. Herein respondents claimed that if the 5% interest rates are nullified and loans are computed at 1% per month, it would mean that the checks which are objects of BP22 cases are not only fully paid but in fact over paid.

ISSUE: Whether or not a prejudicial questions exists such that the outcome of the validity of the interest is determinative of the guilt or innocence of the respondents in the criminal case.

HELD: NO PREJUDICIAL QUESTION EXISTS. Prejudicial questions have two elements: a) The civil actions involves an issue similar or intimately related to the issue raised in the criminal action; b)The resolution of such issue determines whether or not the criminal action may proceed. The validity or invalidity of the interest rate is not determinative of the guilt of the respondents in the criminal case. The cause or reason for issuance of a check is immaterial in determining criminal culpability under BP22. The law punishes the issuance of the bouncing check and not the purpose it was issued for.

PEOPLE v. NARVAEZ [121 SCRA 389 (1983)]

Nature: Appeal from decision of the CFI of South Cotabato

Facts: Mamerto Narvaez has been convicted of murder (qualified by treachery) of David Fleischer and Flaviano Rubia. On August 22,1968, Narvaez shot Fleischer and Rubia during the time the two were constructing a fence that would prevent Narvaez from getting into his house and rice mill. The defendant was taking a nap when he heard sounds of construction and found fence being made. Head dressed the group and asked them to stop destroying his house and asking if they could talk things over. Fleischer responded with "No, gadamit, proceed, go ahead." Defendant lost his "equilibrium," and shot Fleisher with his shotgun. He also shot Rubia who was running towards the jeep where the deceased's gun was placed. Prior to the shooting, Fleischer and Co. (the company of Fleischer's family) was involved in a legal battle with the defendant and other land settlers of Cotabato over certain pieces of property. At the time of the shooting, the civil case was still pending for annulment (settlers wanted granting of property to Fleisher and Co. to be annulled). At time of the shooting, defendant had leased his property from Fleisher (though case pending and ownership uncertain) to avoid trouble. On June 25, defendant received letter terminating contract because he allegedly didn't pay rent. He was given 6 months to remove his house from the land. Shooting was barely 2 months after letter. Defendant claims he killed in defense of his person and property. CFI ruled that Narvaez was guilty. Aggravating circumstances of evident premeditation offset by the mitigating circumstance of voluntary surrender. For both murders, CFI sentenced him to reclusion perpetua, to indemnify the heirs, and to pay for moral damages.

Issues:

No. The courts concurred that the fencing and chiselling of the walls of the house of the defendant was indeed a form of aggression on the part of the victim. However, this aggression was not done on the person of the victim but rather on his rights to property. On the first issue, the courts did not err. However, inconsideration of the violation of property rights, the courts referred to Art. 30 of the civil code recognizing the right of owners to close and fence their land. Although is not in dispute ,the victim was not in the position to subscribe to the article because his ownership of the land being awarded by the government was still pending, therefore putting ownership into question. It’s accepted that victim was the original aggressor.

Yes. However, the argument of the justifying circumstance of self-defense is applicable only if the 3 requirements are fulfilled. Art. 11(1) RPC enumerates these requisites:

Unlawful aggression. In the case at bar, there was unlawful aggression towards appellant's property rights. Fleisher had given Narvaez 6 months and he should have left him in peace before time was up, instead of chiseling Narvaez's house and putting up fence. A536 of the CC also provides that possession may not be acquired through force or intimidation; while Art. 539 provides that every possess or has the right to be respected in his possession

Reasonable necessity of means employed to prevent or repel attack. In case, killing was disproportionate to

attack.

Lack of sufficient provocation on part of person defending himself. Here, there was no provocation at all

since he was asleepSince not all requisites present, defendant is credited w/ the special mitigating circumstance of incomplete defense, pursuant to A13(6) RPC. These mitigating circumstances are: voluntary surrender & passion & obfuscation (read p. 405 explanation) Crime is homicide (2 counts) not murder because treachery is not applicable on account of provocation by the deceased. Also, assault wasn’t deliberately chosen with view to kill since slayer acted instantaneously. There was also no direct evidence of planning or preparation to kill.Art. 249 RPC: Penalty for homicide is reclusion temporal. However, due to mitigating circumstances and incomplete defense, it can be lowered 3 degrees (Art. 64) to arresto mayor.

No. He isn’t liable to be subsidiarily imprisoned for non-payment of civil indemnity. RA 5465 made the provisions of A39 applicable to fines only & not to reparation of damage caused, indemnification of consequential damages & costs of proceedings. Although it was enacted only after its commission, considering that RA 5465 is favorable to the accused who is nota habitual delinquent, it may be given retroactive effect pursuant to RPC A22.

Judgment: Defendant guilty of homicide but w/ mitigating circumstances and extenuating circumstance of

incomplete self defense. Penalty is 4 mos. arresto mayor & to indemnify each group of heirs 4K w/o

subsidiary imprisonment & w/o award for moral damages. Appellant has already been detained 14 yrs so his

immediate release is ordered.

Gutierrez, dissenting. Defense of property can only be invoked when coupled with form of attack on

person defending property. In the case at bar, this was not so. Appellant should then be sentenced to prision

mayor. However, since he has served more than that, he should be released.

People vs. RabanalFacts:Sometime in Augustof 1996, Bonnie Rabanal, a security guard of McDonalds was approached by Rudy Pascua, who was armed and intoxicated suddenly kicked the podium that fell on him. Furthermore, the said Rudy Pascua was collecting P100 but Rabanal refused to give in. Pascua demanded that Rabanal should surrender his firearm. While Pascua was reaching for the firearm of Rabanal, the latter pushed the former and grabbed his gun. At that very moment pulled the gun and fired a shot for 4 times. Rabanal take possession of Pascua’s firearms and surrender it to the security agency as proof that someone attempted to kill him and later to Camp Crame. For the reason that Pascua was a body guard of one named Fernanadez and might have influenced in Dagupan area, he refuses to surrender in the said area. The lower court finds Rabanal of the crime Murder and sentenced to suffer death penalty and to indemnify the heirs of the deceased.

Decision of the Supreme Court:Decision of the lower court was modified from the crime of murder to the crime of homicide and deleted the award of damages was deleted.Ruling:1 ) For self  defense to prosper, the accused must proved that the elements that would constitute a self â defense must be present: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself. Although all the three elements must concur, self-defense must rest firstly on proof of unlawful aggression on the part of the victim. If no unlawful aggression has been proved, no self-defense may be successfully pleaded, whether complete or incomplete. In other words in self-defense, unlawful aggression is a primordial element. It presupposes an actual, sudden and unexpected attack or imminent danger on the life and limb of a person not a mere threatening or intimidating attitude at the time the defensive action was taken against the aggressor. There is unlawful aggression when the peril to ones life, limb or right is either actual or imminent. Actual peril to ones life means that the danger must be present, that is, actually in existence, or imminent in that the danger ison the point of happening. This cannot be said in this case because the victim was unarmed when he was shot by accused-appellant. Indeed, the danger had already ceased when the victim laid his gun down on the pavement, thus enabling accused-appellant to push him away. It must be remembered that the means employed by the person making a defense must be rationally necessary to prevent or repel an unlawful aggression. What the law requires is a rational equivalence, in the consideration of which will enter as principal factors the emergency, the imminent danger to which the person attacked is exposed, and the instinct more than reason, that moves or impels the defense; and the proportionateness thereof does not depend upon the harm done, but upon the imminent danger of such injury.2) They affirmed the award of civil indemnity in the amount of P50,000.00, pursuant to prevailing jurisprudence. Such award requires no proof other than the death of the victim. Likewise, the award of moral damages in the amount of P50,000.00 is consistent with controlling case law taking into consideration the pain and anguish of the victims family brought about by his death. However, the award of P26,000.00 for the Eternal Garden plot, P60,000.00 for the coffin of the victim and P100,000.00 for the wake and other expenses incurred in connection with the death of the deceased, amounting to a total of P186,000.00, should be modified. The trial court did not present any computation to justify such an amount. Infact, other than the bare allegations of the victims widow to this effect, the records are totally bereft of any receipt or voucher to justify the trial courts award for burial and other expenses. The rule is that every pecuniary loss must be established by credible evidence before it may be awarded. Credence can be given only to claims which are duly supported by receipts or other credible evidence. Thus, the amount of actual damages should accordingly be reduced to P66,000.

PEOPLE V. CABUNGCAL NARCISO

Appellant invited several persons to a picnic in a fishery. They spent the day at the fishery and returned in

two boats.

In the boat steered by the appellant, the majority were women, among them are appellants wife and son and

a nursing child. Upon reaching a place of great depth, the deceased rocked the boat. Appellant asked the

deceased not to rock the boat. The deceased paid no attention. Appellant struck him in the forehead by an

oar. Deceased fell into the water and was submerged. After a while appeared, saying that he is going to

capsize it and started to move it. Appellant struck him on the neck.

HELD:

Exempt from criminal liability. ACQUITED. Acted in defense of his wife, child and other passengers.

PEOPLE V. JOHNNY DELA CRUZ G.R. NO. 133921November 27, 2010Accused was convicted of rape.  The charge was filed 12 years after the alleged incident, when the victim was already 20 years old.HELD:An accusation of rape can be made with facility and while the accusation is difficult to prove, it is even more difficult for the person accused, although innocent to disprove the charge.  In rape cases, the testimony of the complainant must stand or fall on its own merits and should never be allowed to draw strength from the weakness of the evidence of the defense.  The long delay of the complainant in reporting the incident makes it difficult for the court not to have compelling doubts on the veracity of her episode.  Proof of guilt beyond reasonable doubt not proven.case digests, case digests of supreme court decisions, case digests Philippines, mobile phone deals, laptop computers, gadgets, free legal opinion, online jobs, best law firms in Mindanao

PEOPLE v. DE LA CRUZ [97 SCRA 385 (1980)]November 10, 2010

 Agapito de la Cruz was found guilty as principal by inducement of the crime of Kidnapping and Serious Illegal Detention, and sentencing him to death.?          The facts are such that Agapito met up w/ Mohamad Sagap Salip, Alih Itum and a certain Asmad and proposed to them the killing of Antonio Yu & the kidnapping of the Antonio’s younger bro Yu Chi Chong, for ransom. Agapito happened to be the oversser of Antonio’s rubber & coconut land for no less than 10 yrs?          He gave them instructions as to how and where to locate the Yu brothers at a given time and how they were to ambush the brothers. (But he didn’t directly participate in actual crime)?          But Antonio had to go somewhere and so the younger Yu went with Isabelo Mancenido to Isabela (Isabelo Isabela hehe.. funny..). The younger Yu was ambushed as instructed but when Yu Chi Chong tried to escape by striking Angih with a piece of wood, Angih got so pissed he shot Yu several times, killing him.?          The gun shots alerted the villagers so the kidnappers fled. When the villagers left after seeing the body (they said they’ll come back in the morning with police in tow), the kidnappers took the body and threw it in the ocean.?          Antonio testified and provided the possible motive for Agapito to commit such crime. Agapito was assigned manager and administrator of the farm but when the younger Yu came back, Agapito was demoted to overseer. Further, profits were higher with Yu as manager and Antonio became stricter with Agapito. Agapito was convicted as mastermind or principal by inducementIssue: WON Agapito should be convicted as mastermind or principal by inducement in the absence of the elements of conspiracy to the crime charged.?          NO. The requisites necessary in order that a person may be convicted as a principal by inducement are:o          That the inducement be made directly with the intention of procuring the commission of the crime; ando          That such inducement be the determining cause of the commission of the crime by the material executor?          The foregoing requisites are indubitable present in this case?          Jamas Jumaidi & Oyong Asidin, 2 discharged witnesses, testified that Asmad & Amil contacted them to go to Basilan to do a job for Agapito.?          When the group was brought face to face with him, he lost no time in laying down the strategy for the killing of Antonio Yu and the kidnapping of Yu Chi Chong for ransom.?          It was he who knew when the truck of the intended victims would go to Latawan to load the copra to be delivered to Isabela.

?          He knew the route the truck would take & the approximate time that it was to pass by. He even selected the ambush place.?          Clearly, he had positive resolution to procure the commission of the crime. He, too, presented the strongest kind of temptation, a pecuniary gain in the form of ransom, w/c was the determining factor of the commission of the crime by his co-accused.?          W/o him, the crime would not have been conceived, much less committed. Clearly, he was a principal by induction, with collective criminal responsibility with the material executors.?          One is induced to commit a crime either by a commans (precepto) or for a consideration (pacto), or by any other similar act w/c constitutes the real and moving cause of the crime & w/c was done for the purpose of inducing such criminal act & was sufficient for that purpose. The person who gives promises, or offers the consideration & the one who actually commits the crime by reason of such promise, remuneration or reward are both principals.?          The inducer need not take part in the commission of the offense. 1 who induces another to commit a crime is guilty as principal even though he might have taken no part in its material execution.

PEOPLE V. SABIO

When Teodoro Sabio was squatting with a (Irving Jurilla) friend, Romeo Bacobo and two others approached

them. Bacobo asked Sabio where he spent the holy week. He gave Sabio a foot-kick greeting. Sabio stood up

thereupon and gave Bacobo a fist blow. The wounds of Bacobo took 11 to 12 days to heal.

LESS PHYSICAL INJURY

HELD:

AFFIRMED IN TOTO

For unlawful aggression to be present, there must be real danger to life or personal safety.

G.R. No. L-23734             April 27, 1967

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.TEODORO SABIO, defendant-appellant.

BENGZON, J.P. J.:

At about six p.m. of April 12, 1963, Teodoro Sabio was squatting with a friend, Irving Jurilla, in the plaza of Central Manapla, Manapla, Negros Occidental. Romeo Bacobo and two others — Ruben Miñosa and Leonardo Garcia — approached them. All of them were close and old friends.

Romeo Bacobo then asked Sabio where he spent the holy week. At the same time, he gave Sabio a "footkick greeting", touching Sabio's foot with his own left foot. Sabio thereupon stood up and dealt Romeo Bacobo a fist blow, inflicting upon him a lacerated wound, ¾ inch long, at the upper lid of the left eye. It took from 11 to 12 days to heal and prevented Romeo Bacobo from working during said period as employee of Victorias Milling Co., Inc.

Sabio was thereafter prosecuted for less serious physical injuries. In the municipal court he was found guilty and sentenced to imprisonment of 5 months and 10 days plus costs. In the Court of First Instance, however,

to which he appealed, he was found guilty but with the mitigating circumstance of provocation, so that the penalty imposed was one (1) month and five (5) days of arresto mayor plus indemnity of P100 and costs.1äwphï1.ñët

Defendant appealed from this judgment to Us to raise as a pure question of law the sole issue of whether, under the facts is determined below, a fist blow delivered in retaliation to a "foot-kick greeting" is an act of self-defense and/or justifying circumstance entitling the accused to acquittal and relief from all liabilities, civil and criminal.

A primordial requisite for self-defense is unlawful aggression (Art. 11, Rev. Penal Code). And for unlawful, aggression to be present, there must be real danger to life or personal safety (People vs. Beatriz Yuman, 61 Phil. 786). For this reason, a mere push or a shove, not followed by other acts, has been held insufficient to constitute unlawful aggression (People vs. Yuman, supra). A playful kick — the lower court rejected defendant's claim that it was a "vicious kick" — at the foot my way of greeting between friends may be a practical joke, and may even hurt; but it is not a serious or real attack on a person's safety. Appellant's submission that it amounts to unlawful aggression cannot therefore be sustained. As rightly found by the Court of First Instance, such kick was only a mere slight provocation.

Reference is made to a decision of the Supreme Court of Spain (prom. Jan. 20, 1904, 72 Jur. Crim. 123-125), considering a slap on the face an unlawful aggression. No parity lies between said case and the present. Since the face represents a person and his dignity, slapping, it is a serious personal attack. It is a physical assault coupled with a willful disregard, nay, a defiance, of in individual's personality. It may therefore be frequently regarded as placing in real danger a person's dignity, rights and safety. A friendly kick delivered on a person's foot obviously falls short of such personal aggression.

Wherefore, the judgment appealed from is hereby affirmed in toto. Costs against appellant. So ordered.

C.A. No. 384             February 21, 1946

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.AVELINA JAURIGUE, appellant.

DE JOYA, J.:

Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance of Tayabas, for the crime of murder, of which Nicolas Jaurigue was acquitted, but defendant Avelina Jaurigue was found guilty of homicide and sentenced to an indeterminate penalty ranging from seven years, four months and one day of prision mayor to thirteen years, nine months and eleven days of reclusion temporal, with the accessory penalties provided by law, to indemnify the heirs of the deceased, Amando Capina, in the sum of P2,000, and to pay one-half of the costs. She was also credited with one-half of the period of preventive imprisonment suffered by her.

From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court of Appeals for Southern Luzon, and in her brief filed therein on June 10, 1944, claimed —

(1) That the lower court erred in not holding that said appellant had acted in the legitimate defense of her honor and that she should be completely absolved of all criminal responsibility;

(2) That the lower court erred in not finding in her favor the additional mitigating circumstances that (a) she did not have the intention to commit so grave a wrong as that actually committed, and that (b) she voluntarily surrendered to the agents of the authorities; and

(3) That the trial court erred in holding that the commission of the alleged offense was attended by the aggravating circumstance of having been committed in a sacred place.

The evidence adduced by the parties, at the trial in the court below, has sufficiently established the following facts:

That both the defendant and appellant Avelina Jaurigue and the deceased Amado Capina lived in the barrio of Sta. Isabel, City of San Pablo, Province of Laguna; that for sometime prior to the stabbing of the deceased by defendant and appellant, in the evening of September 20, 1942, the former had been courting the latter in vain, and that on one occasion, about one month before that fatal night, Amado Capina snatched a handkerchief belonging to her, bearing her nickname "Aveling," while it was being washed by her cousin, Josefa Tapay.

On September 13, 1942, while Avelina was feeding a dog under her house, Amado approached her and spoke to her of his love, which she flatly refused, and he thereupon suddenly embraced and kissed her and touched her breasts, on account of which Avelina, resolute and quick-tempered girl, slapped Amado, gave him fist blows and kicked him. She kept the matter to herself, until the following morning when she informed her mother about it. Since then, she armed herself with a long fan knife, whenever she went out, evidently for self-protection.

On September 15, 1942, about midnight, Amado climbed up the house of defendant and appellant, and surreptitiously entered the room where she was sleeping. He felt her forehead, evidently with the intention of abusing her. She immediately screamed for help, which awakened her parents and brought them to her side. Amado came out from where he had hidden under a bed in Avelina's room and kissed the hand of Nicolas Jaurigue, her father, asking for forgiveness; and when Avelina's mother made an attempt to beat Amado, her husband prevented her from doing so, stating that Amado probably did not realize what he was doing. Nicolas Jaurigue sent for the barrio lieutenant, Casimiro Lozada, and for Amado's parents, the following morning. Amado's parents came to the house of Nicolas Jaurigue and apologized for the misconduct of their son; and as Nicolas Jaurigue was then angry, he told them to end the conversation, as he might not be able to control himself.

In the morning of September 20, 1942, Avelina received information that Amado had been falsely boasting in the neighborhood of having taken liberties with her person and that she had even asked him to elope with her and that if he should not marry her, she would take poison; and that Avelina again received information of Amado's bragging at about 5 o'clock in the afternoon of that same day.

At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas Jaurigue went to the chapel of the Seventh Day Adventists of which he was the treasurer, in their barrio, just across the provincial road from his house, to attend religious services, and sat on the front bench facing the altar with the other officials of the organization and the barrio lieutenant, Casimiro Lozada. Inside the chapel it was quite bright as there were electric lights.

Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival of her father, also for the purpose of attending religious services, and sat on the bench next to the last one nearest the door. Amado Capina was seated on the other side of the chapel. Upon observing the presence of Avelina Jaurigue, Amado Capina went to the bench on which Avelina was sitting and sat by her right side, and, without saying a word, Amado, with the greatest of impudence, placed his hand on the upper part of her right thigh. On observing this highly improper and offensive conduct of Amado Capina, Avelina Jaurigue, conscious of her personal dignity and honor, pulled out with her right hand the fan knife marked Exhibit B, which she had in a pocket of her dress, with the intention of punishing Amado's offending hand. Amado seized Avelina's right hand, but she quickly grabbed the knife with her left hand and stabbed Amado once at the base of the left side of the neck, inflicting upon him a wound about 4 1/2 inches deep, which was necessarily mortal. Nicolas Jaurigue, who was seated on one of the front benches, saw Amado bleeding and staggering towards the altar, and upon seeing his daughter still holding the bloody knife, he approached her and asked: "Why did you do that," and answering him Avelina said: "Father, I could not endure anymore." Amado Capina died from the wound a few minutes later. Barrio lieutenant Casimiro Lozada, who was also in the same chapel, approached Avelina and asked her why she did that, and Avelina surrendered herself, saying: "Kayo na po ang bahala sa aquin," meaning: "I hope you will take care of me," or more correctly, "I place myself at your disposal." Fearing that Amado's relatives might retaliate, barrio lieutenant Lozada advised Nicolas Jaurigue and herein defendant and appellant to go home immediately, to close their doors and windows and not to admit anybody into the house, unless accompanied by him. That father and daughter went home and locked themselves up, following instructions of the barrio lieutenant, and waited for the arrival of the municipal authorities; and when three policemen arrived in their house, at about 10 o'clock that night, and questioned them about the incident, defendant and appellant immediately surrendered the knife marked as Exhibit B, and informed said policemen briefly of what had actually happened in the chapel and of the previous acts

and conduct of the deceased, as already stated above, and went with said policemen to the police headquarters, where her written statements were taken, and which were presented as a part of the evidence for the prosecution.

The high conception of womanhood that our people possess, however humble they may be, is universal. It has been entertained and has existed in all civilized communities.

A beautiful woman is said to be a jewel; a good woman, a treasure; and that a virtuous woman represents the only true nobility. And they are the future wives and mothers of the land. Such are the reasons why, in the defense of their honor, when brutally attacked, women are permitted to make use of all reasonable means available within their reach, under the circumstances. Criminologists and courts of justice have entertained and upheld this view.

On the other hand, it is the duty of every man to protect and show loyalty to womanhood, as in the days of chivalry. There is a country where women freely go out unescorted and, like the beautiful roses in their public gardens, they always receive the protection of all. That country is Switzerland.

In the language of Viada, aside from the right to life on which rests the legitimate defense of our own person, we have the right to property acquired by us, and the right to honor which is not the least prized of our patrimony (1 Viada, Codigo Penal, 5th ed., pp. 172, 173).

The attempt to rape a woman constitutes an unlawful aggression sufficient to put her in a state of legitimate defense, inasmuch as a woman's honor cannot but be esteemed as a right as precious, if not more, than her very existence; and it is evident that a woman who, thus imperiled, wounds, nay kills the offender, should be afforded exemption from criminal liability, since such killing cannot be considered a crime from the moment it became the only means left for her to protect her honor from so great an outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague and Alcansare, 62 Phil., 504). .

As long as there is actual danger of being raped, a woman is justified in killing her aggressor, in the defense of her honor. Thus, where the deceased grabbed the defendant in a dark night at about 9 o'clock, in an isolated barrio trail, holding her firmly from behind, without warning and without revealing his identity, and, in the struggle that followed, touched her private parts, and that she was unable to free herself by means of her strength alone, she was considered justified in making use of a pocket knife in repelling what she believed to be an attack upon her honor, and which ended in his death, since she had no other means of defending herself, and consequently exempt from all criminal liability (People vs. De la Cruz, 16 Phil., 344).

And a woman, in defense of her honor, was perfectly justified in inflicting wounds on her assailant with a bolo which she happened to be carrying at the time, even though her cry for assistance might have been heard by people nearby, when the deceased tried to assault her in a dark and isolated place, while she was going from her house to a certain tienda, for the purpose of making purchases (United States vs. Santa Ana and Ramos, 22 Phil., 249).

In the case, however, in which a sleeping woman was awakened at night by someone touching her arm, and, believing that some person was attempting to abuse her, she asked who the intruder was and receiving no reply, attacked and killed the said person with a pocket knife, it was held that, notwithstanding the woman's belief in the supposed attempt, it was not sufficient provocation or aggression to justify her completely in using deadly weapon. Although she actually believed it to be the beginning of an attempt against her, she was not completely warranted in making such a deadly assault, as the injured person, who turned out to be her own brother-in-law returning home with his wife, did not do any other act which could be considered as an attempt against her honor (United States vs. Apego, 23 Phil., 391)..

In the instant case, if defendant and appellant had killed Amado Capina, when the latter climbed up her house late at night on September 15, 1942, and surreptitiously entered her bedroom, undoubtedly for the purpose of raping her, as indicated by his previous acts and conduct, instead of merely shouting for help, she could have been perfectly justified in killing him, as shown by the authorities cited above..

According to the facts established by the evidence and found by the learned trial court in this case, when the deceased sat by the side of defendant and appellant on the same bench, near the door of the barrio chapel and placed his hand on the upper portion of her right thigh, without her consent, the said chapel was lighted with electric lights, and there were already several people, about ten of them, inside the chapel, including her own father and the barrio lieutenant and other dignitaries of the organization; and under the

circumstances, there was and there could be no possibility of her being raped. And when she gave Amado Capina a thrust at the base of the left side of his neck, inflicting upon him a mortal wound 4 1/2 inches deep, causing his death a few moments later, the means employed by her in the defense of her honor was evidently excessive; and under the facts and circumstances of the case, she cannot be legally declared completely exempt from criminal liability..

But the fact that defendant and appellant immediately and voluntarily and unconditionally surrendered to the barrio lieutenant in said chapel, admitting having stabbed the deceased, immediately after the incident, and agreed to go to her house shortly thereafter and to remain there subject to the order of the said barrio lieutenant, an agent of the authorities (United States vs. Fortaleza, 12 Phil., 472); and the further fact that she had acted in the immediate vindication of a grave offense committed against her a few moments before, and upon such provocation as to produce passion and obfuscation, or temporary loss of reason and self-control, should be considered as mitigating circumstances in her favor (People vs. Parana, 64 Phil., 331; People vs. Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86).

Defendant and appellant further claims that she had not intended to kill the deceased but merely wanted to punish his offending hand with her knife, as shown by the fact that she inflicted upon him only one single wound. And this is another mitigating circumstance which should be considered in her favor (United States vs. Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil., 123).

The claim of the prosecution, sustained by the learned trial court, that the offense was committed by the defendant and appellant, with the aggravating circumstance that the killing was done in a place dedicated to religious worship, cannot be legally sustained; as there is no evidence to show that the defendant and appellant had murder in her heart when she entered the chapel that fatal night. Avelina is not a criminal by nature. She happened to kill under the greatest provocation. She is a God-fearing young woman, typical of our country girls, who still possess the consolation of religious hope in a world where so many others have hopelessly lost the faith of their elders and now drifting away they know not where.

The questions raised in the second and third assignments of error appear, therefore, to be well taken; and so is the first assignment of error to a certain degree.

In the mind of the court, there is not the least doubt that, in stabbing to death the deceased Amado Capina, in the manner and form and under the circumstances above indicated, the defendant and appellant committed the crime of homicide, with no aggravating circumstance whatsoever, but with at least three mitigating circumstances of a qualified character to be considered in her favor; and, in accordance with the provisions of article 69 of the Revised Penal Code, she is entitled to a reduction by one or two degrees in the penalty to be imposed upon her. And considering the circumstances of the instant case, the defendant and appellant should be accorded the most liberal consideration possible under the law (United States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil., 472; People vs. Mercado, 43 Phil., 950)..

The law prescribes the penalty of reclusion temporal for the crime of homicide; and if it should be reduced by two degrees, the penalty to be imposed in the instant case is that of prision correccional; and pursuant to the provisions of section 1 of Act No. 4103 of the Philippine Legislature, known as the Indeterminate Sentence Law, herein defendant and appellant should be sentenced to an indeterminate penalty ranging from arresto mayor in its medium degree, to prision correccional in its medium degree. Consequently, with the modification of judgment appealed from, defendant and appellant Avelina Jaurigue is hereby sentenced to an indeterminate penalty ranging from two months and one day of arresto mayor, as minimum, to two years, four months, and one day ofprision correccional, as maximum, with the accessory penalties prescribed by law, to indemnify the heirs of the deceased Amado Capina, in the sum of P2,000, and to suffer the corresponding subsidiary imprisonment, not to exceed 1/3 of the principal penalty, in case of insolvency, and to pay the costs. Defendant and appellant should also be given the benefit of 1/2 of her preventive imprisonment, and the knife marked Exhibit B ordered confiscated. So ordered..

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.

[G.R. No. 120853. March 13, 1997]

PAT. RUDY ALMEDA,Petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents.

D E C I S I O N

FRANCISCO, J.:

This is a case of homicide.

Petitioner Rudy Almeda was charged with murder before the Regional Trial Court (RTC) of Tandag, Surigao del Sur in an information which reads as follows:

"That on the 29th day of November 1988, at about 7:30 o'clock in the evening, more or less, inside Bautista's Food and Snack Inn at Capitol Hills, Tandag, province of Surigao del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named, with intent to kill, treachery and evident premeditation, did, then and there, willfully, unlawfully and feloniously shoot several times one, CBL Leo Pilapil Selabao, PC Member, with the use of a caliber 45 nickled pistol, thereby inflicting upon the latter the following wounds, to wit:

1. Gunshot wound 1 cm. in diameter with point of entry 1 cm. lateral to the 6th thoracic cavity, penetrating lung thru and thru, with point of exit 2 cm. below the left nipple.

2. Gunshot wound 1 cm. in diameter with point of entry at midscapular area left at the level of 4th thoracic vertebra, penetrating the thoracic cavity, penetrating the heart thru and thru, with point of exit at level of ziphoid process.

3. Gunshot wound 1 cm. in diameter with point of entry 3 cm. left lateral to the 3rd thoracic vertebra, posterior chest wall penetrating the thoracic cavity, penetrating the mediatinum thru and thru. Slug lodged skin deep.

4. Gunshot wound 1 cm. in diameter with point of entry 4 cm. from midline right occipital area thru and thru with point of exit preauricular area right.

5. Gunshot wound 1 cm. in diameter with gunpowder tatooing (sic) left infra auricular area thru and thru with point of exit at the right side of the neck 2 cm. beside the oricoid cartilage.

6. Gunshot wound 1 cm. in diameter with gunpowder tatooing (sic) with point of entry at left side of neck at level of 4th cervical vertebra, tangential with point of exit at left side of the neck at the level of 5th cervical vertebra (about 4 cm. from point of entry), which wounds have caused the instantaneous death of CBL Leo P. Salabao, to the damage and prejudice of his heirs in the following amounts:

P50,000.00 as life indemnity of the victim;10,000.00 as moral damages; and10,000.00 as exemplary damages.

CONTRARY TO LAW. (In violation of Art. 248 of the Revised Penal Code.)"1chanroblesvirtuallawlibrary

During arraignment, petitioner pleaded not guilty. After trial, the lower court2 convicted petitioner of homicide only and appreciated in his favor two mitigating circumstances.3 The prosecution filed a motion for reconsideration with regard to the appreciation of the mitigating circumstances. On July 23, 1992, the lower court granted the motion and modified its earlier decision. The dispositive portion of the modified judgment reads:

WHEREFORE, finding accused Rudy Almeda GUILTY beyond reasonable doubt of HOMICIDE, and there being neither mitigating nor aggravating circumstances which attended the commission of the offense, but applying the Indeterminate Sentence law, the Court hereby sentences him to suffer the indeterminate penalty of imprisonment ranging from eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum; to pay the heirs of the deceased victim PC Cbl. Leo Salabao the sum of Fifty Thousand (50,000) Pesos as life indemnity and ten thousand (10, 000) Pesos as moral damages, without subsidiary imprisonment in case of insolvency; and to pay the cost.

The bail bond put up by the accused for his provisional liberty is ordered cancelled.

SO ORDERED.4chanroblesvirtuallawlibrary

On appeal, the Court of Appeals (CA) affirmed the modified judgment.5 Hence this petition where petitioner imputes error to the appellate court in (1) not finding that he acted in defense of strangers, and (2) in failing to appreciate in his favor the mitigating circumstances of sufficient provocation and voluntary surrender.

The anterior facts ably supported by evidence on record are summarized by the CA as follows:

On November 29, 1988, at approximately 5:00 o'clock in the afternoon, Julian Herrera, Jr., together with his two nephews Donato Salabao and PC Constable Leo Salabao arrived at the Bautista's Snack Inn to fetch Susonte Montero who lived in the same town with Herrera. (TSN, January 22, 1992, p. 6) Herrera asked Donato to enter the snack inn and inform Montero that they were ready to head home. However, Montero was in the middle of a drinking spree with Vice Governor Acosta and the latter's companions, one of whom was Almeda who was the Vice Governor's bodyguard. Upon the invitation of Vice Governor Acosta, Herrera joined the drinking session and left his nephews in the service jeep. (TSN Jan. 23, 1992, p. 5)

After about an hour, the Salabao brothers alighted and sought shelter in the covered porch of the Bautista's Snack Inn. (TSN, Jan. 23, 1992, p. 6) Shortly thereafter, Felix Amora, who was among the drinking companions of the Vice Governor and the then Community Development Officer and Civil Defense Coordinator, stepped out of the inn and saw the Salabao brothers. Irked because Cbl. Leo Salabao failed to salute him, Amora confronted the former and ordered Cbl. Salabao to salute him. Cbl. Salabao countered that since Amora was not known to him as a PC officer and was in civilian clothes he was not compelled to salute him.(Ibid.) Their argument got the attention of Herrera who went out to pacify them. He then asked Amora and the Salabao brothers to get inside. (TSN, Jan. 22, 1992, p. 10) Once inside, Cbl. Salabao sat at the right side of Almeda while Amora sat opposite Almeda at the left side of Herrera. (TSN, Jan. 22, 1992, p. 12-14) Donato Salabao, on the other hand, sat near the counter. (TSN, Jan. 23, 1992, p. 7)

Unknown to the Salabao brothers, during the past hour, Herrera had himself been arguing with Vice Governor Acosta because of the latter's accusation that Herrera was involved in anomalous transactions. (TSN, Jan. 22, 1992, p. 7-9)

A short time after the Salabao brothers had seated themselves, Herrera's argument with Acosta resumed. At this juncture Acosta stood up, presumably to pay for the beer he had ordered, and whispered something to Almeda. Almeda promptly grabbed the barrel of the armalite rifle which Cbl. Salabao carried with him and pushed it down. (TSN, Jan. 22, 1992, p. 16; TSN, Jan. 23, 1992, p. 8) Simultaneously, Almeda pulled out his.45 caliber pistol pointed it at Cbl. Salabao's head and shot the latter in the left temple. As Cbl. Salabao staggered Almeda fired five more shots felling (sic) the former. (TSN, Jan. 22, 1992, p. 20-21; TSN, Jan. 23, 1992 p. 12) After which Almeda picked up Cbl. Salabao's armalite, cocked it and than (sic) pointed it at Donato Salabao who immediately raised his hands. (TSN, Jan. 23, 1992 p. 13) Almeda then left along with the Vice Governor and his companions. The following day, at approximately 7:00 o'clock in the morning, Almeda was arrested by a group of PC Constables. (TSN, Feb. 18, 1992 p. 3-4)6chanroblesvirtuallawlibrary

The petition is not impressed with merit. A party who invokes the justifying circumstance of defense of strangers has the burden of proving by clear and convincing evidence the exculpatory cause7 that would save him from conviction. He must rely on the strength of his own evidence and not on the weakness of the evidence for the prosecution for even if the latter's evidence is weak, it cannot be disbelieved8 and will not exculpate the former from his categorical admission as the author of the killing. The Court is convinced upon scrutiny of the evidence that petitioner failed to discharge this burden.

Article 11 (3) of the Revised Penal Code provides:

"Justifying Circumstance. The following do not incur any criminal liability:

3. Anyone who acts in defense of the person or rights of a stranger, provided that the first and second requisites mentioned in the first circumstance of this article are present and that the person defending be not induced by revenge, resentment, or other evil motive "

This circumstance of defense of strangers has three requisites:9chanroblesvirtuallawlibrary

(1) unlawful aggression;

(2) reasonable necessity of the means employed to prevent or repel it; and

(3) the person defending be not induced by revenge, resentment, or other evil motive.

The first and crucial requisite for defense of strangers to prosper is absent in this case. Unlawful aggression presupposes an actual, sudden and unexpected attack or imminent danger on the life or limb of a person.10 The mere cocking of the M- 14 rifle by the victim (Cbl. Salabao) without aiming the firearm at any particular target, is not sufficient to conclude that the life of the Vice-Governor, Herrera or even of Amora was in imminent danger. A threatening or intimidating attitude per se does not constitute unlawful aggression.11 Even a mysterious whisper poses no danger. There is nothing from the act of the victim in trying to stand up, from which the Court may infer that the life of the person (the Vice Governor) whom petitioner was allegedly protecting, was under actual threat or attack from the victim.

Besides, assuming that such act of the victim posed an imminent danger, petitioner was able to check if not neutralize such danger, when with a lightning speed, he held and pointed downward the rifle of the former and simultaneously poked his.45 caliber at the victim's head. Moreover, when the victim fell down and staggered after petitioner shot him pointblank in the head, any supposed unlawful aggression by the former, assuming that it has begun, had ceased. If so, the one making the defense has no more right to kill or even wound the former aggressor.12 Accordingly, petitioner's contention that "he was forced to fire five more shots to defend the life of the Vice-Governor belongs to the realm of fantasy. "13chanroblesvirtuallawlibrary

Moreover, the number, location and severity of the fatal wounds suffered by the victim belie the claim of defense of stranger but is indicative of a determined effort to kill.14 The victim was hit on the vital parts of his body head, lungs, heart, chest and neck.15chanroblesvirtuallawlibrary

With the absence of unlawful aggression that can be attributed to the victim, it becomes unnecessary to determine the remaining requisites for they obviously have no leg to stand on. Thus, in this case, the defense of stranger will not lie, complete or incomplete.16

On petitioner's claim that he voluntarily surrendered, the evidence on record disclosed otherwise. Military men acting on order of their superior officer were tasked to look for and apprehend petitioner. When they spotted him, they surrounded and captured petitioner. Moreover, before he was captured, petitioner could have easily surrendered to the Vice Governor or to the police station which is a few blocks from his house. Yet, the record is bereft of any evidence that he made any effort to do so.

The Court does not also agree with petitioner's claim that he is entitled to the mitigating circumstance of "sufficient provocation on the part of the offended party immediately preceded the act."17 To avail of this benefit, it must be shown that the provocation originated from the offended party, in this case, the victim. However, the records will attest that it was not the victim who provoked the heated confrontation between the Vice-Governor and Herrera, as he has nothing to do with their discussions. Neither was it shown that the victim provoked petitioner into committing the felonious act. Petitioner and the victim do not know each other, they never met before that incident, and the victim never aimed his rifle at petitioner. They merely sat beside each other which could hardly be sustained as a provocative act. Moreover, any purported provocation by the victim on Amora, when the former refused to salute the latter outside the restaurant, could not be considered as a provocation on petitioner since the latter was not even aware of the saluting incident between the victim and Amora. Thus, the benefit of the mitigating circumstances under Article 13 (4) of the Revised Penal Code is unavailable to petitioner.

At any rate, the errors assigned by petitioner assail the factual findings and evaluation of witness's credibility by the trial court. It is a settled tenet, however, that the findings of fact of the trial court is accorded not only

with great weight and respect on appeal but at times finality, especially when such findings are affirmed by the CA and provided it is supported by substantial evidence on record.18Upon examination of the evidence in this case, the Court is convinced that no significant facts or circumstances were overlooked or disregarded by the courts below which if considered would warrant a reversal of the findings and vary the outcome hereof.19 With respect to the issue of credibility of witnesses, the appreciation and assessment thereof is best left to the trial court judge20 having the unique opportunity of observing that elusive and incommunicable evidence of the witness' deportment on the stand, a privilege denied to the appellate court.21 Again, there is nothing in the record that would indicate material inconsistencies or even improbabilities in the testimony of prosecution's witnesses. Since no arbitrariness or any cogent reasons were cited that would call for the reversal of the lower court's evaluation of credibility of witness, such evaluations bind this court.22chanroblesvirtuallawlibrary

WHEREFORE, premises considered, the decision of the Court of Appeals affirming the decision of the trial court convicting Rudy Almeda of homicide and sentencing him to suffer an indeterminate penalty of eight (8) years and one ( 1 ) day of prision mayor, as minimum to fourteen (14) years, eight (8) months and one ( 1 ) day of reclusion temporal, as maximum and to pay the heirs of the victim Leo Salabao, a total of P60, 000.00 as indemnity and damages is hereby AFFIRMED in toto.

SO ORDERED.

G.R. No. L-7037 March 15, 1912 THE UNITED STATES,plaintiff-appellee,vs.JOSE LAUREL, ET AL.,defendants -appellants .O'Brien and DeWitt for appellants.Attorney-General Villamor for appellee.

TORRES,J.:This appeal was raised by the four above-named defendants, from the judgment of conviction, found onpage 117 of the record, rendered by the Honorable Mariano Cui.The facts in this case are as follows: On the night of December 26, 1909, while the girl Concepcion Latwas walking along the street, on her way from the house of Exequiel Castillo, situated in the pueblo ofTanauan, Province of Batangas, accompanied by several young people, she was approached by Jose Laurelwho suddenly kissed her and immediately thereafter ran off in the direction of his house, pursued by thegirl's companions, among whom was the master of the house above mentioned, Exequiel Castillo; but theydid not overtake him.On the second night after the occurrence just related, that is, on the 28th, while Exequiel Castillo and JoseLaurel, together with Domingo Panganiban and several others of the defendants, were at an entertainmentheld on an upper floor of the parochial building of the said pueblo and attended by many residents of thetown, it is alleged that the said Castillo and Laurel were invited by Panganiban, the former through hisbrother, Roque Castillo, and the latter, directly, to come out into the yard, which they did, accompanied byPanganiban and the other defendants referred to. After the exchange of a few words and explanationsconcerning the kiss given the girl Lat on the night of the 26th of that month, a quarrel arose between thesaid Jose Laurel and Exequiel Castillo, in which Domingo Panganiban, Vicente Garcia, and ConradoLaurel took part, and as a result of the quarrel Exequiel Castillo was seriously wounded. He succeeded inreaching a drug store near by where he received first aid treatment; Jose Laurel also received two slightwounds on the head.Dr. Sixto Rojas, who began to render medical assistance to Exequiel Castillo early in the morning of thefollowing day, stated that his examination of the latter's injuries disclosed a wound in the left side of thechest, on a level with the fourth rib, from 3 to 4 centimeters in depth, reaching into the lung; anotherwound in the back of the left arm and in the conduit through which the ulnar nerve passes, from 10 to 11centimeters in length, penetrating to the bone and injuring the nerves and arteries of the said region,especially the ulnar nerve, which was served; a contusion on the right temple, accompanied by ecchymosis

and hemorrhage of the tissues of the eye; and, finally, another contusion in the back of the abdomen nearthe left cavity, which by reaction injured the stomach and the right cavity. According to the opinion of thephysician above named, the wound in the left side of the breast was serious on account of its having fullypenetrated the lungs and caused the patient to spit blood, as noticed the day after he was wounded, andthere must have been a hemmorhage of the lung, an important vital vascular organ; by reason of thishemorrhage or general infection the patient would have died, had it not been for the timely medical aidrendered him. The wound on the back of the left arm was also of a serious nature, as the ulnar nerve wascut, with the result that the title and ring fingers of the patient's left hand have been rendered permanentlyuseless. With respect to the contusion on the right temple, it could have been serious, according to the kindof blows received, and the contusion on the back of the abdomen was diagnosed as serious also, onaccount of its having caused an injury as a result of which the wounded man complained of severe pains inthe stomach and left spleen. The said physician stated that he had attended the patient fourteen consecutivedays; that the contusion on the abdomen was cured in four or five days, and that on the right temple in tenor twelve days, although this latter injury was accompanied by a considerable ecchymosis which might notdisappear for about three months, the time required for the absorption of the coagulated blood; that the

stitches in the wound of the left arm were taken out after twelve days, and when witness ceased to attendthe patient, this wound was healing up and for its complete cure would require eight or more days' time;and that the wound in the breast, for the reason that it had already healed internally and the danger ofinfection had disappeared, was healing, although still more time would be required for its complete cure,the patient being able to continue the treatment himself, which in fact he did.In view of the strikingly contradictory evidence adduced by the prosecution and by the defense, and inorder to decide what were the true facts of the case we shall proceed to recite the testimony of the partywho was seriously wounded and of his witnesses, and afterwards, that of his alleged assailants and of theirwitnesses, in order to determine the nature of the crime, the circumstances that concurred therein and, inturn, the responsibility of the criminal or criminals.Exequiel Castillo testified that while he, together with Primitivo Gonzalez, was in the hall of the parochialbuilding of Tanauan, attending an entertainment on the night of December 28, 1909, he was approached byhis brother, Roque Castillo, who told him, on the part of Domingo Panganiban, that Jose Laurel desired tospeak with him and was awaiting him on the ground floor of the said building, to give him an explanationwith regard to his (Laurel's) having kissed Concepcion Lat on the night of the 26th in the street and in thepresence of the witness and other young people; that the witness, Exequiel Castillo, therefore, left theparochial building, accompanied by his brother Roque and Primitivo Gonzalez, and met Sofronio Velasco,Gaudencio Garcia, and Alfonso Torres, at the street door; that after he had waited there for half an hour,Jose laurel, Conrado Laurel, Vicente Garcia, Jose Garcia, and Domingo Panganiban, likewise came downout of the building and Jose Laurel approached him and immediately took him aside, away from the doorof the building and the others; that Laurel then said to him that, before making any explanations relative tothe said offense against the girl Concepcion Lat, he would ask him whether it was true that he (the witness,Castillo) had in his possession some letters addressed by Laurel to the said girl, to which the witnessreplied that as a gentleman he was not obliged to answer the question; that thereupon Jose Laurel suddenlystruck him a blow in the left side of the breast with a knife, whereupon the witness, feeling that he waswounded, struck in turn with the cane he was carrying at his assailant, who dodged and immediately

started to run; thereupon witness received another knife thrust in the left arm followed by a blow in the leftside from a fist and witness, upon turning, saw Vicente Garcia and Domingo Panganiban in the act ofagain assaulting him; just then he was struck a blow with a cane on his right temple and, on turning, sawbehind him Conrado Laurel carrying a stick, and just at the moment Primitivo Gonzalez and severalpolicemen approached him calling of peace; his assailants then left him and witness went to theneighboring drug store where he received first aid treatment. Witness further testified that he had beencourting the girl Concepcion Lat for a month; that, because his sweetheart had been kissed by Jose Laurel,he felt a little resentment against the latter, and that since then he had no opportunity to speak with hisassailant until the said night of the attack.Roque Castillo, a witness for the prosecution, testified that, at the request of Domingo Panganiban, he hadsuggested to his brother, Exequiel Castillo, that the latter should go down to the door of the ground floor ofthe parochial building, where Jose Laurel was waiting for him, so that the latter might make explanationsto him with regard to what had taken place on the night prior to the 26th of December; that Exequiel, whowas in the hall beside Primitivo Gonzalez, immediately upon receiving the notice sent him in Laurel'sname, got up and went down with Gonzalez and the witness, though the latter remained at the foot of thestairs in conversation with Virginio de Villa, whom he found there; that, after a little while, witness sawJose Laurel, Jose Garcia, Domingo Panganiban, Vicente Garcia, and Conrado Laurel come down from thesaid building, and, on observing something bulging from the back of the latter's waist he asked him whatmade that bulge, to which Laurel replied that it meant "peace;" witness thereupon said to him that if hereally desired "peace," as witness also did, he might deliver to the latter the revolver he was carrying, andto prove that he would not make bad use of the weapon, Laurel might take the cartridges out and deliverthe revolver to witness. This he did, the witness received the revolver without the cartridges, and his fearsthus allayed, the witness returned to the upper floor to the entertainment; but that, at the end of about halfan hour, he heard a hubbub among the people who said that there was a quarrel, and witness, suspectingthat his brother Exequiel had met with some treachery, ran down out of the house; on reaching the groundfloor he met Primitivo Gonzalez, who had blood stains on his arms; that Gonzalez then informed him thatExequiel was badly wounded; that he found his said brother in Arsenio Gonzalez' drug store; and that hisbrother was no longer able to speak but made known that he wanted to be shriven. Witness added that onthat same night he delivered the revolver to his father, Sixto Castillo, who corroborated this statement.

The other witness, Primitivo Gonzalez, corroborated the testimony given by the preceding witness, RoqueCastillo, and testified that, while he was that night attending the entertainment at the parochial building ofTanauan, in company with Exequiel Castillo, the latter received notice from his (Castillo's) brother,through Domingo Panganiban, to the effect that Jose Laurel desired to speak with him concerning whatoccurred on the night of December 26; that thereupon Exequiel, the latter's brother, Roque and the witnessall went down out of the house, though Roque stopped on the main stairway while witness and Exequielwent on until they came to the main door of the ground floor where they met Alfonso Torres andGaudencio Garcia; that, after a while, Jose Laurel, Conrado Laurel, Vicente Garcia, Jose Garcia Aquino,and Domingo Panganiban came up; that when Jose Laurel met Exequiel Castillo he caught the latter by thehand and the two separated themselves from the rest and retired to a certain distance, although Vicente andJose Garcia, Conrado Laurel, and Alfonso Torres placed themselves the nearest to the first two, JoseLaurel and Exequiel Castillo; that at this juncture witness, who was about 6 or 7 meters away from the twomen last named, observed that Jose Laurel, who had his hand in his pocket while he was talking with

Exequiel, immediately drew out a handkerchief and therewith struck Exequiel a blow on the breast; thatthe latter forthwith hit his assailant, Laurel, with a cane which he was carrying; that Laurel, upon receivinga blow, stepped back, while Exequiel pursued him and continued to strike him; that thereupon VicenteGarcia stabbed Exequiel, who had his back turned toward him and Conrado Laurel struck the saidExequiel a blow on the head with a cane; that when witness approached the spot where the fight was goingon, several policemen appeared there and called out for peace; and that he did not notice what Jose GarciaAquino and Alfonso Torres did.Lucio Villa, a policeman, testified that on the hearing the commotion, he went to the scene of it and metJose Laurel who was coming away, walking at an ordinary gait and carrying a bloody pocketknife in hishand; that witness therefore arrested him, took the weapon from him and conducted him to the municipalbuilding; and that the sergeant and another policemen, the latter being the witness's companion, tookcharge of the other disturbers.The defendant, Jose Laurel, testified that early in the evening of the 28th of December he went to theparochial building, in company with Diosdado Siansance and several young people, among them hiscousin Baltazara Rocamora, for the purpose of attending an entertainment which was to be held there; that,while sitting in the front row of chairs, for there were as yet but few people, and while the director of thecollege was delivering a discourse, he was approached by Domingo Panganiban who told him thatExequiel Castillo wished to speak with him, to which witness replied that he should wait a while andPanganiban thereupon went away; that, a short time afterwards, he was also approached by Alfredo Yatcowho gave him a similar message, and soon afterwards Felipe Almeda came up and told him that ExequielCastillo was waiting for him on the ground floor of the house; this being the third summons addressed tohim, he arose and went down to ascertain what the said Exequiel wanted; that, when he stepped outside ofthe street door, he saw several persons there, among them, Exequiel Castillo; the latter, upon seeingwitness, suggested that they separate from the rest and talk in a place a short distance away; that thereuponExequiel asked witness why he kissed his, Exequiel's sweetheart, and on Laurel's replying that he had doneso because she was very fickle and prodigal of her use of the word "yes" on all occasions, Exequiel said tohim that he ought not to act that way and immediately struck him a blow on the head with a cane or club,which assault made witness dizzy and caused him to fall to the ground in a sitting posture; that, as witnessfeared that his aggressor would continue to assault him, he took hold of the pocketknife which he wascarrying in his pocket and therewith defended himself; that he did not know whether he wounded Exequielwith the said weapon, for, when witness arose, he noticed that he, the latter, had a wound in the rightparietal region and a contusion in the left; that witness was thereupon arrested by the policemen, LucioVilla, and was unable to state whether he dropped the pocketknife he carried or whether it was picked upby the said officer; that it took more than a week to cure his injuries; that he had been courting the girlConcepcion Lat for a year, but that in October, 1909, his courtship ended and Exequiel Castillo then beganto court her; and that, as witness believed that the said girl would not marry him, nor Exequiel, he kissedher in the street, on the night of December 26, 1909, and immediately thereafter ran toward his house.Baltazara Rocamora stated that, while she was with Jose Laurel on the night of December 28, 1909,attending an entertainment in the parochial building of Tanauan, the latter was successively called byDomingo Panganiban, Alfredo Yatco, and Felipe Almeda, the last named saying: "Go along, old fellow;you are friends now." Casimiro Tapia testified that, on the morning following the alleged crime, he visited

Jose Laurel in the jail, and found him suffering from the bruises or contusions; that to cure them, he gavehim one application of tincture of arnica to apply to his injuries, which were not serious.

his pocket. In view, therefore, of these manifest contradictions, and in order to determine the liability ofthe defendant, Jose Laurel, who, it is proved, inflicted the serious wound on Exequiel Castillo, it isnecessary to decide which of the two was the assailant.Taking for granted that Jose Laurel did actually kiss Concepcion Lat in the street and in the presence ofExequiel Castillo, the girl's suitor, and of others who were accompanying her, the first query that naturallyarises in the examination of the evidence and the circumstances connected with the occurrence, is: Whoprovoked the encounter between Laurel and Castillo, and the interview between the same, and who invitedthe other, on the night of December 28, 1909, to come down from the parochial building of Tanauan, tothe lower floor and outside the entrance of the same? Even on this concrete point the evidence iscontradictory, for, while the witnesses of Exequiel Castillo swore that the latter was invited by Jose Laurel,those of the latter testified, in turn, that Laurel was invited three consecutive times by three differentmessengers in the name and on the part of the said Castillo.In the presence of this marked contradiction, and being compelled to inquire into the truth of the matter,we are forced to think that the person who would consider himself aggrieved at the kiss given the girlConcepcion Lat, in the street and in the presence of several witnesses, would undoubtedly be ExequielCastillo, the suitor of the girl, and it would appear to be a reasonable conclusion that he himself, highlyoffended at the boldness of Jose Laurel, was the person who wished to demand explanation of the offense.Upon this premise, and having weighed and considered as a whole the testimony, circumstantial evidence,and other merits of the present case, the conviction is acquired, by the force of probability, that theinvitation, given through the medium of several individuals, came from the man who was offended by theincident of the kiss, and that it was the perpetrator of the offense who was invited to come down from theparochial building to the ground floor thereof to make explanations regarding the insult to the girl Lat, thereal suitor of whom was at the time the said Exequiel Castillo. All this is not mere conjecture; it islogically derived from the above related facts.Both Jose and Exequiel were attending the entertainment that night in the upper story of the parochialbuilding. Exequiel was the first who went below, with his cousin, Primitivo Gonzalez, knowing the Laurelremained in the hall above, and he it was who waited for nearly half an hour on the ground floor of thesaid building for the said Jose Laurel to come down. The latter was notified three times, and successively,in the name and on the part of Exequiel Castillo, first by Domingo Panganiban, then by Alfredo Yatco andfinally by Felipe Almeda--three summonses which were necessary before Jose Laurel could be induced,after the lapse of nearly half an hour, to come down. Meanwhile, for that space of time, Exequiel Castillowas awaiting him, undoubtedly for the purpose of demanding explanations concerning the offensive actcommitted against his sweetheart. The natural course and the rigorous logic of the facts can not bearbitrarily be rejected, unless it be shown that other entirely anomalous facts occurred.If, in the natural order of things, the person who was deeply offended by the insult was the one whobelieved he had a right to demand explanations of the perpetrator of that insult, it is quite probable that theaggrieved party was the one who, through the instrumentality of several persons, invited the insulter tocome down from the upper story of the parochial building, where he was, and make the explanations

which he believed he had a right to exact; and if this be so, Exequiel Castillo, seriously affected andoffended by the insult to his sweetheart, Concepcion Lat, must be held to be the one who brought about theencounter gave the invitation and provoked the occurrence, as shown by his conduct in immediately goingdown to the entrance door of the said building and in resignedly waiting, for half an hour, for Jose Laurelto come down.Moreover, if the latter had provoked the encounter or interview had on the ground floor of the building, itis not understood why he delayed in going down, nor why it became necessary to call him three times, insuch manner that Exequiel Castillo had to wait for him below for half an hour, when it is natural andlogical to suppose that the provoking party or the one interested in receiving explanations would beprecisely the one who would have hastened to be in waiting at the place of the appointment; he would nothave been slow or indisposed to go down, as was the case with Jose Laurel.If, as is true, the latter was the one who insulted the girl Concepcion Lat — an insult which must deeplyhave affected the mind of Exequiel Castillo, the girl's suitor at the time — it is not possible to conceive, asclaimed by the prosecution, how and why it should be Jose Laurel who should seek explanations fromExequiel Castillo. It was natural and much more likely that it should have been the latter who had an

interest in demanding explanations from the man who insulted his sweetheart. In view of the behavior ofthe men a few moments before the occurrence, we are of the opinion that Castillo was the first to go downto the entrance door of the parochial building, knowing that Jose Laurel was in the hall, and,notwithstanding the state of his mind, he had the patience to wait for the said Laurel who, it appears, wasvery reluctant to go down and it was necessary to call him three times before he finally did so, at the endof half an hour.After considering these occurrences which took place before the crime, the query of course arises as towhich of the two was the first to assault the other, for each lays the blame upon his opponent for thecommencement of the assault. Exequiel Castillo testified that after he had replied to Jose Laurel that he,the witness, was not obliged to say whether he had in his possession several letters addressed by laurel tothe girl Concepcion Lat, Laurel immediately stabbed him in the breast with a knife; while Jose Laurelswore that, upon his answering the question put to him by Castillo as to why the witness had kissed hissweetheart, saying that it was because she was very fickle and prodigal of the word "yes" on all occasions,Exequiel said to him in reply that he ought not to act in that manner, and immediately struck him a coupleof blows on the head with a club, wherefore, in order to defend himself, he drew the knife he was carryingin his pocket.Were the statements made by Exequiel Castillo satisfactorily proven at the trial, it is unquestionable thatJose Laurel would be liable as the author of the punishable act under prosecution; but, in view of theantecedents aforerelated, the conclusions reached from the evidence, and the other merits of the case, theconclusion is certain that the assault was commenced by Exequiel Castillo, who struck Jose Laurel twoblows with a cane, slightly injuring him in two places on the head, and the assaulted man, in self-defense,wounded his assailant with a pocketknife; therefore, Jose Laurel committed no crime and is exempt fromall responsibility, as the infliction of the wounds attended by the three requisites specified in paragraph 4,article 8 of the Penal Code.From the evidence, then, produced at the trial, it is concluded that it was Exequiel Castillo who, throughthe mediation of several others, invited Laurel to come down from the upper story of the parochialbuilding, and that it was he, therefore, who provoked the affray aforementioned, and, also, it was he who

unlawfully assaulted Jose Laurel, by striking the latter two blows with a cane inasmuch as it is not likelythat after having received a dangerous wound in the left breast, he would have been able to strike hisalleged assailant two successive blows and much less pursue him. It is very probable that he received thesaid wounds after he had assaulted Jose Laurel with the cane, and Laurel, on his part, in defending himselffrom the assault, employed rational means by using the knife that he carried in his pocket.For all the foregoing reasons, Jose Laurel must be acquitted and held to be exempt from responsibility onthe ground of self-defense. The case falls within paragraph 4 of article 8 of the Penal Code, inasmuch asthe defensive act executed by him was attended by the three requisites of illegal aggression on the part ofExequiel Castillo, there being a lack of sufficient provocation on the part of Laurel, who, as we have said,did not provoke the occurrence complained of, nor did he direct that Exequiel Castillo be invited to comedown from the parochial building and arrange the interview in which Castillo alone was interested, and,finally, because Laurel, in defending himself with a pocketknife against the assault made upon him with acane, which may also be a deadly weapon, employed reasonable means to prevent or repel the same.Under the foregoing reasoning, the other accused, Conrado Laurel and Vicente Garcia, who likewise, wereconvicted as principals of the crime under prosecution, are comprised within the provisions of paragraph 5of the said article 8 of the Penal Code, which are as follows:He who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate,natural, or adopted brothers or sisters, or of his relatives by affinity in the same degrees and thoseby consanguinity within the fourth civil degree, provided the first and second circumstancesmentioned in the foregoing number are attendant, and provided that in case the party attacked firstgave provocation, the defender took no part therein.Conrado Laurel and Vicente Garcia, first cousins of Jose Laurel, as shown in the trial record to have beenproven without contradiction whatsoever, did not provoke the trouble, nor did they take any part in theinvitation extended to Jose Laurel in the name of and for Exequiel Castillo; in assisting in the fightbetween Castillo and Laurel, they acted in defense of their cousin, Jose Laurel, when they saw that thelatter was assaulted, twice struck and even pursued by the assailant, Castillo; consequently Conrado Laurel

and Vicente Garcia have not transgressed the law and they are exempt from all responsibility, for all therequisites of paragraph 4 of the aforecited article attended the acts performed by them, as there was illegalaggression on the part of the wounded man, Exequiel Castillo, reasonable necessity of the meansemployed to prevent or repel the said aggression on the part of the aforementioned Conrado Laurel andVicente Garcia, who acted in defense of their cousin, Jose Laurel, illegally assaulted by Exequiel Castillo,neither of the said codefendants having provoked the alleged crime.With regard to Domingo Panganiban, the only act of which he was accused by the wounded man, ExequielCastillo, was that he struck the latter a blow on the left side with his fist, while Castillo was pursuingLaurel.Domingo Panganiban denied that he took part in the quarrel and stated that he kept at a distance from thecombatants, until he was arrested by a policeman. His testimony appears to be corroborated by that ofPrimitivo Gonzalez, a witness for the prosecution and relative of Exequiel Castillo, for Gonzalez positivelydeclared that Panganiban was beside him during the occurrence of the fight and when the otherssurrounded the said Exequiel Castillo; it is, therefore, neither probable nor possible that Panganibanengaged in the affray, and so he contracted no responsibility whatever.

Exequiel Castillo's wounds were very serious, but, in view of the fact that conclusive proof was adduced atthe trial, of the attendance of the requisites prescribed in Nos. 4 and 5 of article 8 of the Penal Code, infavor of those who inflicted the said wounds, it is proper to apply to this case the provision contained inthe next to the last paragraph of rule 51 of the provisional law for the application of the said code.With respect to the classification of the crime we believe that there is no need for us to concern ourselvestherewith in this decision, in view of the findings of fact and of law made by the court below upon thequestion of the liability of the defendants.By reason, therefore, of all the foregoing, we are of opinion that, with a reversal of the judgment appealedfrom, we should acquit, as we do hereby, the defendants Jose Laurel, Vicente Garcia, Conrado Laurel, andDomingo Panganiban. They have committed no crime, and we exempt them from all responsibility. Thecosts of both instances shall be de oficio, and the bond given in behalf of the defendants shall immediatelybe canceled.

[G.R. Nos. 135239-40. August 12, 2002]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROLANDO ATADERO, FLORENCIO ATADERO, and RAUL HUDIT (at large), accused,

ROLANDO ATADERO and FLORENCIO ATADERO, accused-appellants.

D E C I S I O N

PUNO, J.:

In the afternoon of January 21, 1990, a violent fight erupted between two groups of men at Barangay Vista Alegre, Bacolod City. One group was composed of Florencio Atadero, Rolando Atadero and Raul Hudit, while the other group was composed of Edgardo Meniel, Ronelo Meniel and Rolando Solinap. The brawl resulted in the death of Edgardo Meniel and the wounding of his brother, Ronelo Meniel. Florencio and Rolando Atadero, together with Raul Hudit, were jointly charged before the Regional Trial Court of Bacolod City with the crimes of Murder and Attempted Murder in the following informations:

Criminal Case No. 8907

That on or about the 21st day of January, 1990, in the City of Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, conspiring, confederating and acting in concert, without any justifiable cause or motive, being then armed with a bolo, butchers knife, stainless knife and chako, with intent to kill and by means of treachery and with evident premeditation, did, then and there wilfully, unlawfully and feloniously attack, assault, hack and stab with said weapons one Ronelo F. Meniel, thereby causing upon the person of the latter the following wounds, to wit:

- Lacerated wound 5 cm long, left thigh middle third lateral aspect.

- Lacerated wound 3 cm long, left thigh middle third anterior aspect.

- Lacerated wound 4 cm long, left index finger.

- Lacerated wound 2 cm long, left hand, middle finger.

- Lacerated wound 1 cm long, left hand ring finger.

- Lacerated wound, 0.5 cm long, left hand small finger.

Thus commencing the commission of a felony directly by overt acts, but did not perform all the acts of execution which would have produced the crime of murder by reason of some cause or accident other than the accuseds own spontaneous desistance.

Act contrary to law.[1

Criminal Case No. 8905

That on or about the 21st day of January 1990, in the City of Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, conspiring, confederating and acting in concert, without any justifiable cause or motive, being then armed with a bolo, butchers knife, stainless knife and chako, with intent to kill and by means of treachery and with evident premeditation, did, then and there wilfully, unlawfully and feloniously attack, assault, hack and stab with said weapons one Edgardo P. Meniel, thereby causing upon the person of the latter the following wounds, to wit:

1. Abrasion with contusion, 1.5 cm. in area, lower eyebrow, right, nasal aspect.

2. Wound, incised, 4.0 cm. in length, involving angle of mid lips, left to pre-auricular region, left.

3. Wound, stabbed, 3.0 cm. in length, chest, anterior, level of the 3rd inter costal space, 2.0 cm. from left mid-sternal line, medial extremity contused and lateral extremity sharp, to enter thoracic cavity, lacerating superior lobe of left lung.

4. Wound, stabbed, 3.2 cm. in length, chest, anterior, level of the 5th intercostal space, along mid-sternal line, lateral extremity contused and medial extremity sharp, fracturing sternum, to enter thoracic cavity, lacerating lower lobe of right lung.

5. Wound, stabbed, 2.5 cm. in length, chest, anterior, level of the 5th inter-costal space, 8.0 cm. from left mid-sternal line, medial extremity contused, and lateral extremity sharp to enter thoracic cavity, perforating ventricle of the heart.

6. Wound, stabbed, 3.1 cm. in length, hypochondriac region, 10.0 cm. from left mid-sternal line, (With omental prolapse), superior extremity contused and inferior extremity sharp, lacerating left half of the diaphragm, lacerating inferior lobe of left lung.

7. Wound, incised, 2.0 cm. in length, thumb, left, middle third, anterior aspect.

8. Wound, incised, 4.0 cm. in length, iliac region, along left posterior axillary line.

9. Wound, hacked, 5.0 cm. in length, elbow, left, fracturing bone thereat.

CAUSE OF DEATH: SHOCK AND HEMORRHAGE DUE [TO] STABBED AND HACKED WOUNDS.

Which directly caused the death of the said victim Edgardo P. Meniel to the damage and prejudice of his heirs, as follows:

1. As indemnity for the death of the victim .. P30,000.00

2. As indemnity for the loss of earning capacity P122,400.00

3. As moral damages. P 10,000.00

Act contrary to law.[2

The trial court issued a warrant of arrest against the three accused on July 3, 1990 but the same was returned unserved as the accused were found to be residing in Mindanao. [3 On October 18, 1994, elements of the Police Criminal Investigation Unit - Criminal Investigation Command (PCIU-CIC), Philippine National

Police arrested Rolando Atadero at Nissan Village, Marcos Highway, Cainta, Rizal. Florencio Atadero, meanwhile, voluntarily surrendered to P/Supt. Mario R. Sandiego, Chief of PCIU-CIC, at the PCIU-CIC headquarters at Camp Crame in Quezon City. [4 Raul Hudit has remained at large.

Rolando and Florencio Atadero were arraigned on January 5, 1995. They pleaded not guilty to both charges. [5

On August 27, 1997, after joint trial on the merits, the trial court rendered a decision finding Rolando Atadero and Florencio Atadero guilty of murder in Criminal Case No. 8905, and Rolando Atadero guilty of attempted homicide in Criminal Case No. 8907. The trial court held that after the confrontation between Edgardo Meniel and Florencio Atadero at Bangga Bodega, the three accused conspired to await the arrival of the Meniels at Vista Alegre and attack them with their weapons. The trial court further found the killing of Edgardo Meniel to be attended by the aggravating circumstance of treachery as he was first attacked by Rolando Atadero while he was still on board the tricycle which restrained his movement and prevented him from defending himself. After he fled, the three accused chased him and inflicted various injuries on his body even as he lay wounded and helpless. In Criminal Case No. 8907, only Rolando Atadero, who assaulted Ronelo Meniel, was found criminally liable as it has not been established that the conspiracy included the infliction of bodily harm against Ronelo Meniel. The trial court found him guilty only of attempted homicide since no aggravating circumstance attended the commission of the offense. [6 The dispositive portion of the decision states:

WHEREFORE, premises considered, ROLANDO ATADERO and FLORENCIO ATADERO are hereby found guilty for the murder of Edgardo Meniel, in Criminal Case No. 8905, and accordingly sentenced to suffer the penalty of RECLUSION PERPETUA. Both are ordered to indemnify the heirs of the deceased the amount of P50,000.00; P75,000.00 for loss of earnings, and P10,000.00 for moral damages.

In Criminal Case No. 8907, Rolando Atadero is hereby found guilty beyond reasonable doubt of the crime of Attempted Homicide. Florencio Atadero is ACQUITTED.

No aggravating or mitigating circumstances attended the commission of the crime, and therefore the penalty shall be imposed in its medium period. Accordingly, ROLANDO ATADERO is hereby sentenced to an indeterminate penalty of SIX (6) months of ARRESTO MAYOR as minimum, to FOUR (4) years and ONE (1) day of PRISION CORRECCIONAL as maximum. He is also ordered to pay Ronelo Meniel, P1,000.00 for hospital and medical expenses and P3,000.00 for loss of earnings and costs.

SO ORDERED.[7

Rolando Atadero and Florencio Atadero now appeal from the decision of the trial court. In their appellants brief, both Rolando and Florencio essentially contend that the trial court erred in its assessment of the evidence presented by the parties. [8

We now review the parties evidence.

The prosecution presented the testimonies of several witnesses and the autopsy report on the body of the victim in Criminal Case No. 8905, Edgardo Meniel, [9 as well as the medical certificate issued by Dr. Rodolfo B. Escalona, Medico-Legal Officer at the Corazon Locsin Montelibano Memorial Regional Hospital, showing the injuries sustained by Ronelo Meniel as a result of the incident, in connection with Criminal Case No. 8907. [10

The first witness for the prosecution was Rolando Solinap, a resident of Hacienda Canomayan, Barangay Vista Alegre, Bacolod City, who was with Edgardo and Ronelo Meniel at the time they got involved in the affray. He stated that in the afternoon of January 21, 1990, he, Ronelo and Edgardo were on their way home from Libertad Market. They passed by Bangga Bodega where they saw Florencio Atadero and Raul Hudit. Edgardo confronted Florencio as the latter had allegedly mauled him a year ago during the town fiesta. Solinap mediated between the two by reminding them that they live in the same barangay and that their fathers are compadres. Heeding Solinaps advice, the two shook hands and Edgardo allowed Florencio to go. After Florencio and Raul left, Solinap and the Meniel brothers, together with two others, boarded a tricycle to Vista Alegre. When they reached Vista Alegre, a woman passenger asked to be alighted. Solinap stepped down from the tricycle to allow the woman to pass. Solinap saw Florencio, his brother, Rolando Atadero, and Raul, all armed, running toward them. Rolando Atadero held a chako and a butchers knife. Florencio had a bolo and a stainless knife. Raul was armed with a scythe and a stainless knife. Rolando Atadero thrust his

knife at Edgardo who was seated inside the tricycle. Edgardo was stabbed at the side. Edgardo begged for help. Solinap tried to push Rolando Atadero but the latter turned to him and stabbed him on his right breast. Florencio also tried to hack Solinap with his bolo, hitting him on the left knee. Florencio tried to hack him again, but Solinap thwarted the blow by grabbing the bolo. Solinap cut his middle finger in the struggle. When the bolo fell to the ground, Solinap tried to get hold of it, but he was again hacked by Rolando Atadero. He was hit on his right instep, near his right ankle. As onlookers gathered around them, a certain Bondying, brother-in-law of the Ataderos, tried to restrain and pacify the warring parties. At that moment, Ronelo signalled Solinap to run for safety. Ronelo and Solinap tried to run, but when Ronelo saw that Solinap was wounded, he told him to go back instead and get a tricycle. Solinap hailed a tricycle and asked the driver to bring them to Corazon Locsin Montelibano Memorial Hospital where he was treated for his wounds. [11 Solinap later learned that Edgardo Meniel had died. [12

According to the prosecution, the attack was witnessed by Rolando Ronamo, also a resident of Vista Alegre, Bacolod City. He stated on the witness stand that on January 21, 1990, around 5:30 in the afternoon, he was at Vista Alegre waiting for a tricycle. He saw Florencio Atadero, Rolando Atadero and Raul Hudit standing nearby and appeared to be waiting for somebody. He noticed that the three were armed -- Florencio with a bolo and a butchers knife, Rolando Atadero with a chako and a bolo, and Raul with a scythe and a stainless knife. Then, a tricycle stopped in front of him and one passenger disembarked. Suddenly, the three rushed toward the tricycle and started to stab and hack the passengers inside. He saw three persons being attacked. They turned out to be Rolando Solinap, Ronelo Meniel and Edgardo Meniel. The victims tried to parry, but upon realizing that they were no match for the assailants, they decided to flee. Solinap and Ronelo were able to escape. Edgardo, however, was not as fortunate. Although he tried to run, he later fell to the ground and died. Ronamo reported the incident to the police. [13

Ronelo Meniel, the victim in Criminal Case No. 8907, also took the witness stand. He testified that on January 21, 1990, around 2:00 in the afternoon, he met with his brother, Edgardo, and Rolando Solinap at Libertad Market. They went to Bangga Bodega where he saw Florencio Atadero and Raul Hudit. Edgardo talked with Florencio and Raul for about fifteen minutes. At the end of the conversation, Edgardo and Florencio shook hands and went separate ways. Ronelo, Edgardo and Solinap took a tricycle going to Vista Alegre. When they reached Vista Alegre, he was surprised to see Raul Hudit, Rolando Atadero and Florencio Atadero ready to assault them. Rolando Atadero was about to hit him on the head with a chako but he was quick to dodge. Ronelo jumped out of the tricycle but Rolando Atadero stabbed him. He was hit twice -- on his left leg and on his left hand. Rolando Atadero then turned to his brother who was still seated inside the tricycle. Raul, possessing a stainless knife and scythe, and Florencio, holding a bolo and stainless knife, in the meantime, assaulted Solinap. Ronelo, knowing the futility of fighting back because they lacked arms, prompted Solinap to run. They fled the scene, leaving Edgardo behind. When they returned, they saw Edgardo sprawled on the ground. They then proceeded to Corazon Locsin Montelibano Memorial Hospital where they were treated for their injuries. Ronelo stated that he spent more than P500.00 for his medication. Because of his injuries, he was not able to walk for almost one month. He further stated that he earns P1,500.00 every 15 days as security guard, in addition to his income as laborer in the hacienda which is P90 per day. Ronelo related that the trauma brought about by the incident made it difficult for him to sleep for several nights. [14

Dr. Romeo Gellada testified that on January 22, 1990, he conducted an autopsy on the body of Edgardo Meniel. He found nine injuries on the victims body -- a contused abrasion, several incised wounds, stab wounds and a hack wound. [15 He opined that the four stab wounds found on the victims body were caused by only one instrument which appeared to be a single-bladed instrument. [16

PO3 Allan Plantillo, assigned at the Homicide Section of the Bacolod Police Station, stated that on January 21, 1990, around 5:30 in the afternoon, he received an information regarding a stabbing incident at Vista Alegre. He immediately proceeded to the scene of the crime. When he reached the area around 6:30 in the evening, he found the lifeless body of Edgardo Meniel lying on the road, near the residence of a certain Nelly Alis. In the course of his investigation, he interviewed several persons including the Barangay Captain and Rolando Ronamo. [17

The accused Florencio and Rolando Atadero interposed self-defense. They claimed that it was the group of Edgardo Meniel, Ronelo Meniel and Rolando Solinap who first attacked them and that they only acted to avert the aggression. Aside from their own testimonies, they also presented the testimonies of two other witnesses, Primitivo Castiller and Mrs. Ma. Fe Dago.

Primitivo Castiller, a carpenter and resident of Vista Alegre, Bacolod City, testified that on January 21, 1990, around 5:30 in the afternoon, he was at the house of Nelly Alis. He was at the terrace, repairing a radio, when he saw Florencio Atadero being chased by a man he does not know. He saw Florencio dash into the

house of Nelly Alis and lock the door behind him. Pursuing him, the aggressor forced the door open and shut it again after he got in. Castiller later heard them struggling inside the house. Fearing for his own safety, Castiller stepped out of the terrace. After a few minutes, the wall collapsed. He saw the pursuer drop to the ground, his body covered with blood. [18

Mrs. Ma. Fe Dago narrated that on January 21, 1990, around 5:30 in the afternoon, she boarded a tricycle going to Bangga Bodega. Before she boarded the tricycle, she passed by five men who seemed to be arguing. The five men rode the tricycle and prompted the driver to go. When they reached Vista Alegre, they stopped in front of the store of a certain Ging-Ging. When the men saw Florencio Atadero buying cigarettes at the store, they jumped out of the tricycle and chased him. She noted that two of them had knives while the other one was holding a stone. Mrs. Dago rushed to her mothers house to avoid involvement in the commotion. She later learned that a man died near the house of Nelly Alis. [19

Florencio Atadero stated that in the afternoon of January 21, 1990, he was at Bangga Bodega. He was sitting inside a tricycle waiting for passengers. A jeepney stopped in front of the tricycle and five men and a woman disembarked from the jeepney. The five men, Edgardo Meniel, Ronelo Meniel, Edwin Gillen, Tirso Sausi and Rolando Solinap, approached him. Edgardo confronted him and accused him of boxing him during the town fiesta in 1989. Florencio denied the accusation and told him that it might be one of his brothers. Edgardo did not believe him and accused him of lying. When the tricycle drove off, he heard Edgardo and his companions shouting, it was really him! The tricycle then proceeded to Vista Alegre. When they reached Vista Alegre, he got off in front of a sari-sari store to buy cigarettes. A few minutes later, another tricycle arrived and the group of Edgardo Meniel jumped from the tricycle. Edgardo hurled a stone at him and shouted, he is here! Florencio fell after being hit. Edgardos companions kicked him and stamped on him as he lay on the ground. Then, a neighbor tried to restrain the assailants. Florencio ran toward the house of his uncle and entered through the kitchen. Edgardo pursued him. He pushed the door until it was broken. Edgardo, armed with a knife, chased Florencio around the kitchen until he was cornered near the washbasin. Left with no choice, Florencio picked up a knife and stabbed Edgardo. He continued stabbing him until he fell toward the wall which later collapsed. Florencio then went out of the house and threw the knife. Florencio said that Raul Hudit is his brother-in-law and he was not present at the time of the incident. After the incident, Florencio sought refuge at the house of his other uncle, Wilfredo Yasay. [20

Rolando Atadero testified that on January 21,1990, between 2:00 and 4:00 in the afternoon, he reported for work at Hacienda Lacson in Vista Alegre. On his way home, around 4:30 in the afternoon, he was told by a certain Rading Lobaton that his brother, Florencio Atadero, was being harassed by a group of men and was suspected to be dead. Rolando went to the place of the incident and he saw the group of Edgardo Meniel, Ronelo Meniel, Edwin Gillen, Tirso Sausi and Rolando Solinap ganging up on his brother. He tried to intervene but Solinap turned to him and said, why do you intend to join the fry (sic), I will kill you. As he uttered those words, Solinap immediately thrust a stainless knife at him. Rolando Atadero stepped back. Solinap gave another blow but Rolando Atadero was able to avoid it. Rolando Atadero hacked Solinap with a scythe, hitting his right middle finger. Solinap dropped the knife and stepped back. Ronelo then attacked Rolando Atadero, kicking him at the back. As Rolando Atadero staggered, Solinap again kicked him. Rolando Atadero hacked Solinap with his scythe on his right leg. Solinap fell. Then he heard Tirso Sausi shout, tol, run, we cannot overcome them! Meanwhile, his brother Florencio fled the scene but Edgardo ran after him. Tirso Sausi and Edwin Guillen, meanwhile, ran to their house to arm themselves. As Solinap lay on the ground, Ronelo and Rolando Atadero continued to fight. Solinap, nonetheless, managed to hit Rolando Atadero with stones. Then Solinap shouted, tol, run, you might be killed! Ronelo fled. Rolando Atadero rushed home to secure his family. He saw his brother, Florencio, walking toward the direction of his house, with blood all over his body. [21

Based on the foregoing evidence, we hold that the trial court was correct in finding both accused-appellants guilty of murder and accused Rolando Atadero likewise guilty of attempted homicide. We find no basis for accused-appellants assertion that they only acted in self-defense. To support the accuseds claim of self-defense, he must prove the following elements by clear and convincing evidence:

1. unlawful aggression on the part of the victim;

2. reasonable necessity of the means employed to prevent or repel the attack; and

3. the person defending himself must not have provoked the victim into committing the act of aggression.

When an accused admits killing the victim but invokes self-defense to escape criminal liability, he assumes the burden of proving his plea by credible, clear and convincing evidence. Otherwise, conviction would necessarily follow from his admission that he killed the victim. [22

We find in this case that the accused-appellants failed miserably to establish the elements of self-defense. We agree with the extensive analysis of the trial court of the evidence presented by the parties, thus:

xxx

The testimonies of prosecution witnesses tended to show that the attack was initiated by the accused Rolando and Florencio Atadero, as well as Raul Hudit. It is true that Edgardo Meniel confronted Florencio Atadero at Bangga Bodega. But the confrontation did not progress beyond a verbal exchange and it is undisputed that the confrontation ended when both shook hands. During the confrontation, Edgardo Meniel wanted to confirm if it was Florencio Atadero who boxed him. Florencio gave him a flat denial. Edgardos doubts were not resolved at Bangga Bodega for Florencio never admitted that he boxed Edgardo Meniel. Edgardo Meniel had no reason to attack or assault Florencio, for the confrontation ended peacefully, as the misunderstanding was settled between the parents of both parties.

On the other hand, it can reasonably be deduced that Florencio Atadero resented Edgardo Meniels act of confronting him. At Bangga Bodega he was with Raul Hudit, and Edgardo Meniel was with four (4) companions. It was obvious that Florencio and Raul were outnumbered. They left Bangga Bodega in a huff, earlier than the group of Meniel, and it was very apparent that Florencios resentment got the better of him. The twenty (20) to thirty (30) minutes lead time he had over the group of Meniel, was more than enough for him to inform his brother Rolando Atadero, as well as arm themselves.

When the tricycle carrying Edgardo Meniel, Ronelo Meniel, Rolando Solinap, Tirso Sausi and Edwin Guillen arrived at Vista Alegre, the group of Florencio Atadero, Rolando Atadero, and Raul Hudit was already there waiting in ambush. Before Edgardo Meniel could disembark, Rolando Atadero stabbed him while he was still seated. Wound nos. 3,4 and 5, (Exhibit B) are chest wounds. One of these wounds was inflicted by Rolando Atadero at the tricycle. Florencio Atadero and Raul Hudit had a face-off with Rolando Solinap and Ronel Meniel whom they engaged in mano-a-mano after both have disembarked. Both Solinap and Ronelo sustained injuries. It is remarkable that Rolando Atadero and Florencio Atadero did not sustain stabbed, incised, or hacked wounds despite claims by the accused that Edgardo Meniel and his group were also armed. The injuries sustained by Solinap were on his left knee, right leg and fingers on his left hand. One finger was severed. These injuries established one simple fact, that Solinap was not bearing any weapon. He had to grab the butchers knife being thrust upon him to prevent further injuries. The same is true with the injuries (Exhibit D) sustained by Ronelo Meniel. One was on the left thigh, and the rest on the fingers of his left hand. He had to grapple for possession of the weapon used by (the) attacker lest he sustain further and more serious injuries.

Florencio pointed to a scar on his left eyebrow and ascribes it to a stone thrown at him by Edgardo Meniel. If indeed it is true that Edgardo Meniel was armed with a 10-inch knife, why would he bother to throw a stone at Florencio? The truth of the matter is that, Edgardo Meniel was not armed. He had to throw anything at the pursuing Florencio, in his bid to escape. But already wounded by Rolando, he was not successful in fleeing. Florencio and Rolando Atadero, as well as Raul Hudit caught up with him at the house of Candelario Alis, and the three (3) pounced on him inflicting further injuries on him. The three (3) ganged up on him for Rolando Solinap and Ronelo Meniel managed to escape despite their own injuries. It stands to reason that Edgardo Meniel sustained multiple wounds inflicted by several types of bladed weapons. Edgardo Meniel had nine (9) injuries or wounds classified as stabbed, incised, hacked, and abrasion. The four (4) categories of injuries could not have been inflicted by several types of bladed weapons. Edgardo Meniel had nine (9) injuries or wounds classified as stabbed, incised, hacked, and abrasion. The four (4) categories of injuries could not have been inflicted by one (1) attacker with the use of several bladed or blunt instruments.

The contention therefore, that the accused acted in self-defense specifically that by Florencio Atadero, has no leg to stand on. xxx

xxx

Apropos, the accused failed to establish by the evidence adduced in their favor that Edgardo Meniel, Ronelo Meniel and Rolando Solinap initiated the aggression. On the contrary, the prosecution witnesses have satisfactorily established by clear and convincing evidence that the accused were the aggressors. Second,

the requisite of reasonable necessity of the means employed to repel the unlawful aggression is virtually non-existent. Third, while it can be assumed that Florencio Atadero was provoked by the belligerent attitude that Edgardo Meniel demonstrated when the two had a face-off at Bangga Bodega, such provocation ceased when he shook the hand of Florencio and, therefore, was insufficient to merit the violent response that Florencio Atadero and company employed.[23

Accused-appellants contend that the trial court erred in giving more weight to the testimonies of the prosecution witnesses than those of the defense witnesses who were shown to be disinterested and unbiased. We find no merit in the assertion. Evidence, to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself. Evidence is credible when it is such as the common experience of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony, except its conformity to our knowledge, observation and experience. [24 Here, the physical evidence repudiates the claim of the defense witnesses that the initial aggression came from the victims camp. The autopsy report on the cadaver of Edgardo Meniel shows that the victim sustained a total of nine wounds -- four stab wounds on the chest and several incised wounds on the different parts of his body. [25 Ronelo Meniel, meanwhile, sustained hack wounds on his left thigh and on his fingers on the left hand. [26 In contrast, both accused did not suffer any injuries, except for the minor cut on Florencio Ataderos eyebrow which was caused by a stone hurled at him by the victim, Edgardo Meniel. This is a clear indication of who the real aggressors are. If it were true that it was the Meniels who started the fight and that they were fully armed, as the defense would like us to believe, the Ataderos should have borne more serious injuries. But the evidence says otherwise. Moreover, the multiple hack wounds and incised wounds suffered by both victims are telling signs of the agressors resolve to kill them. It is an oft-repeated rule that the nature and number of wounds inflicted by the accused on the victim are constantly and unremittingly considered important indicia which disprove a plea of self-defense. [27 Physical evidence is evidence of the highest order. It speaks more eloquently than a hundred witnesses. [28 In the cases at bar, the physical evidence, consistent with the testimonies of the prosecution witnesses, establish beyond reasonable doubt the culpability of accused-appellants.

Furthermore, the records show that accused-appellants left Bacolod City and moved to Mindanao immediately after the incident. [29 Hence, they came into police custody only in 1994, after their arrest in Cainta, Rizal. [30 Their flight from the scene of the crime betrays a guilty conscience. It has been held that the justifying circumstance of self-defense may not survive in the face of accused- appellants flight from the crime scene and his failure to inform the authorities about the incident. [31

Once again, we reiterate the rule that findings of fact of the trial court carry great weight and are entitled to respect on appeal absent any strong and cogent reason to the contrary, since it is in a better position to decide the question of credibility of witnesses. In the determination of the veracity of the testimony, the assessment by the trial court is accorded the highest degree of respect and will not be disturbed on appeal unless it is seen to have acted arbitrarily or with evident partiality. [32 We find no reason in this case to reverse the conclusions of the trial court as regards the guilt of accused-appellants.

Nonetheless, in Criminal Case No. 8905, we find the award of P75,000.00 for loss of earnings improper for lack of evidence to prove the same. We, however, increase the amount of moral damages to P50,000.00 in line with recent jurisprudence. [33 In Criminal Case No. 8907, the trial court failed to award the victim moral damages. Under Article 2219 of the New Civil Code, the victim of a criminal offense resulting in physical injuries is entitled to recover moral damages. Accordingly, we hold that the award of moral damages in the amount of P50,000.00 to the victim, Ronelo Meniel, is in order.

IN VIEW WHEREOF, the Decision in Criminal Case Nos. 8907 and 8905 of the Regional Trial Court of Bacolod City is AFFIRMED with MODIFICATION, deleting the award of P75,000.00 for loss of earnings in Criminal Case No. 8905 and increasing the award of moral damages to the heirs of Edgardo Meniel to P50,000.00. In addition, accused-appellant Rolando Atadero is ordered to pay Ronelo Meniel the sum of P50,000.00 as moral damages in Criminal Case No. 8907.

SO ORDERED.

G.R. No. 135848      March 12, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.RAMONITO SAURE a.k.a. "DODONG", accused-appellant.

PUNO, J.:

What has been promised as a night of festivity and fun turned out to be Renato Lepasanda's last dance. For his death, an Information for murder was filed against accused-appellant Ramonito Saure alias "Dodong" on October 17, 1996 with the Regional Trial Court of Maasin, Southern Leyte. Its accusatory portion reads:

"That on or about the 28th of July 1996 at around 1:30 o'clock a.m., in Barangay Basak, municipality of Maasin, province of Southern Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill, evident premeditation and treachery, and while armed with a fan knife known as "Batangas," which said accused had provided himself for the purpose, did then and there willfully, unlawfully and feloniously attack, assault and stab one Renato Lepasanda, thereby inflicting upon the latter the following injuries:

a. Stab would 1 inch in length (L) chest penetrating to thoracic cavity;

b. Stab wound (R) chest 1 cm. Level T6;

c. Stab wound 1.5 inch in length (R) chest level T7 (R) posterior axillary line penetrating to thoracic cavity;

d. Incised wound (R) wrist 1 in. in length muscle deep;

e. Incised wound 1 inch in length (L) wrist;

which caused the instantaneous death of the said victim to the damage and prejudice of his heirs and of social order.

CONTRARY TO LAW."1

The accused-appellant was arraigned on November 20, 1996 and entered a plea of not guilty.2 On trial, the prosecution presented the testimonies of Eleno Alinsub and Ernesto Lacbayo. It also offered the "Batangas" knife3allegedly used by the accused and the victim's Certificate of Death prepared by Dr. Reynaldo Tan who conducted the post-mortem examination.4

The accused-appellant testified on his own behalf along with three (3) corroborating witnesses, namely: (1) Matias Sumampong; (2) Remigio Lacerna; and (3) Relito Dagami.

Prosecution witness Eleno Alinsud testified that on the evening of July 27, 1996, the Barangay Council of Basak organized a benefit dance at the barangay auditorium. Being the chief barangay tanod, he was assigned to oversee the peaceful and orderly conduct of the event.5

At around 1:30 am the following day, Alinsub saw accused-appellant Ramonito "Dodong" Saure stab Renato Lepasanda using a "Batangas" knife. He opined that the stabbing must have been related with the previous verbal altercation between the two, wherein the same reprimanded Lepasanda for forcing one Arlene Lacbayo, alleged niece of the latter, to dance against her wishes.6

After Lepasanda's reprimand, accused-appellant went to the side of the dance hall, pulled his "Batangas" knife, rushed towards the victim who was then sitting in an oblique position, and attacked him from the backside. The accused-appellant's first thrust landed on the victim's upper left chest. Attempting to defend himself, Lepasanda picked up a stool. But as he was raising the stool, the accused-appellant stabbed him again several times, hitting different parts of his upper chest.7 Alinsub, who was three (3) meters away from the scene, shouted at the accused-appellant to avoid any untoward incident. He was hardly heard, though, because the music was still playing.8

While the victim was being attacked, Alinsub rushed towards the accused-appellant, and hit him on the head with a stool. He shoved the victim away to avoid further harm. The accused-appellant, meanwhile, thrust his knife at Alinsub three times but was unable to injure him because the latter was already on guard.9

Upon seeing the incident, Emie Lacerna (also referred to as Remegio Lacerna), a councilman of barangay Canyuom and a companion of the accused-appellant, instructed the latter to board a motorcycle and surrender himself to the authorities. Lacerna's son drove the motorcycle and accompanied the accused to the Maasin Police Station. For his part, Alinsub proceeded to the barangay captain of Basak to report the incident.10

Alinsub further testified that the accused-appellant, who was bigger and taller than the victim, appeared to be intoxicated when the incident took place.11

Ernesto Lacbayo, brother of Arlene Lacbayo, corroborated the material allegations of Alinsub. He testified that on July 27, 1996 at about 11:30 in the evening, he was at the barangay auditorium of Basak to attend the benefit dance.12 He was occupying a table with Renato Lepasanda who was seated in front of him. His sister was seated at another table, roughly three (3) open arms stretch from them. He clarified that Lepasanda was not related by blood to him nor to his sister.13

At about 1:30 in the early morning of July 28, 1996, Lepasanda approached the accused-appellant and reprimanded him for forcing Arlene to dance with him. The two had an exchange of words but were pacified by Eleno Alinsub. Lepasanda returned to his seat but moments later, the accused-appellant appeared with a "Batangas" knife and immediately stabbed him in his left chest.14

Lacbayo declared that the victim was not able to defend himself. After hitting the victim on the left chest, the accused-appellant continuously and successively struck the victim for around five (5) times more while the victim was picking up a stool to parry the blows. Lacbayo tried to help the victim but Remegio Lacerna prevented him from doing so. Lacerna grabbed the wooden bench which Lacbayo intended to use against the accused-appellant. The two of them grappled for possession of the bench.15

As this was happening, Eleno Alinsub instructed the victim to run. The accused-appellant, however, pursued him. Because of the accused-appellant's persistent pursuit, Alinsub struck him with a bench, hitting him on the forehead. The accused-appellant directed his attack against Alinsub but his attempts were unsuccessful. At this point, Lacerna embraced the accused and ordered him to board a motorcycle.16

Taking the witness stand, accused-appellant belied the foregoing testimonies of the prosecution and interposed the justifying circumstance of self-defense.1âwphi1.nêt

Hailing from the nearby Barangay Canyuom, accused-appellant testified that he was in Barangay Basak on the night of July 27, 1996 to attend the benefit dance.17 With him were Remegio Lacerna, Matias Sumampong,18 and Melovino Bonote.19 They were occupying a table just across that of Arlene Lacbayo, Ernesto Lacbayo and Renato Lepasanda. The three were seated beside the entrance door.20 Prior to the incident, the accused was not acquainted with either the victim Lepasanda or the Lacbayo siblings.21

At about 1:30 in the morning the following day, he approached Arlene Lacbayo for a special dance. Lepasanda, whom the accused-appellant later learned to be the boyfriend of Arlene, stood up and admonished him. The accused-appellant assured Lepasanda that he would not mind if Arlene would refuse to dance with him. Despite this assurance, however, Lepasanda flared up and a verbal confrontation ensued between them. At this point, Alinsub, a barangay tanod, came and pacified them. Recognizing Alinsub's authority, and considering that he was not from Barangay Basak, accused listened to Alinsub's admonition and went back to his seat. He danced for a while and later on, told his companions that he will urinate.22

On his way to the comfort room, he passed by Lepasanda's table. Without provocation, Lepasanda struck him with a stool, hitting him on the forehead. Lepasanda kept on hitting him for some time. Feeling dizzy, he drew his "Batangas" knife to parry the blows. Alinsub also struck him with a stool, hitting his nape.23

Because of the commotion, he was unsure whether he hurt anyone with his "Batangas" knife. He had a feeling, though, that he might have wounded somebody. So when Lacerna embraced him and told him to surrender, he immediately obliged and went to the Maasin Police Station.24 He told the authorities that he might have wounded somebody and surrendered the "Batangas" knife.25

Suffering from swelling, contusion and hematoma, the accused-appellant went to the hospital for medical treatment.26 He was accompanied by two policemen whom he identified as Lito and a certain Dumaguit.27 The hospital personnel, however, refused to give him a medical certificate. He was instructed to

go to the dispensary, instead. When he arrived at the dispensary, he was told that the doctor was in Tacloban so he went back to the municipal building.28

Matias Sumampong, a cousin of both the witness and the accused-appellant, corroborated the accused-appellant's testimony.29 He testified that on July 27, 1996, he was with Ramonito Saure and Ruby Bonote in Barangay Basak auditorium to attend the benefit dance. They occupied a table and the three of them had a drink. They consumed one (1) pocket-size Tanduay Rhum and one (1) family-size Coke.

That evening, Renato Lepasanda was with some lady-companions. They were occupying a table about three (3) meters from that of the accused-appellant. Sumampong and the accused-appellant had a dance with Lepasanda's companions. After some time, the accused-appellant requested Arlene Lacbayo to dance with him again. He likewise sought the permission of Lepasanda who reluctantly acceded to the request. The two danced for a while but sensing Lepasanda's reluctance, the accused-appellant escorted Arlene back to her seat.30

At about 1:30 am the following day, he saw Renato Lepasanda strike the accused-appellant on the face with a stool. The accused-appellant drew his "Batangas" knife, parrying the blows inflicted by Lepasanda. In the process, the accused-appellant wounded Lepasanda on the right chest. The accused-appellant and the victim were facing each other when the former inflicted injury on the latter.31

Seized by fear, Sumampong was unable to do anything. He did not want to get involved with his cousins' quarrel. He finally regained his composure and asked the accused-appellant to stop thrusting his knife at Lepasanda. By then, several people started ganging up on the accused-appellant.32

Defense also presented Remigio Lacerna, a barangay kagawad of Barangay Canyuom. Lacerna testified that he was in Barangay Basak on July 27, 1996, to attend the benefit dance. He arrived at the barangay auditorium at about 10:00 pm. The accused-appellant joined him at his table an hour later.33

Later that night, Lacerna paid one hundred pesos (P100.00) to the organizer of the benefit dance for five (5) musical pieces and asked a lady to dance with him. Accused-appellant also danced but after the first piece, he approached Arlene Lacbayo, presumably to invite her to dance. Lacerna, however, noticed that the accused-appellant did not dance when the second piece was played.34

At about 1:30 am the following day, Lacerna saw Lepasana hit the accused-appellant with a stool. As the lights were dim, he barely saw what was happening. He thought that the accused-appellant retaliated by boxing Lepasana only.35 It was only later that he realized that the accused-appellant had stabbed Lepasana.36Nonetheless, he saw Alinsub hit the accused-appellant on the nape using a stool. Seeing this, he embraced the accused-appellant and told him to ride the motorcycle driven by his son, and surrender to police authorities.37 He went home to Canyuom right after the incident. Only then did he learn that the victim was his grandson.38

Lacerna claimed that he was not aware of any verbal altercation between the accused-appellant and the victim before the incident.39 Although he is acquainted with Matias Sumampong and Ruby Rabonete, did not notice their presence at the benefit dance.40

Finally, defense presented SPO3 Relito Dagami, assigned with the General Assignment Services of the Philippine National Police. He testified that on July 28, 1996, at about 9:00 am, the accused-appellant, who was then detained at the Maasin Police Station, requested a medical examination for the injuries he sustained. With a patrol car, he accompanied the accused to the Integrated Provincial Health Office. The accused-appellant, however, was not given a medical certificate. He was instructed to secure the medical certificate from the Rural Health Unit but when they arrived there, they were informed that the doctor was in Tacloban.41 Thus, they went back to the municipal building.42 Dagami attested that the face of the accused-appellant was indeed swollen.43

Giving credence to the witnesses for the prosecution, the trial court disregarded the accused-appellant's claim of self-defense, viz:.

"Accused denied the murder charge and invokes self-defense anchored mainly on his self-serving testimony, and pleading a mitigation, tried to establish the circumstance of voluntary surrender. His testimony tried to obtain corroboration from witnesses Matias Sumampong and Remigio Lacerna.

But to no avail. They were not able to overcome the positive and straightforward declarations of the prosecution witnesses.

Accused attempts to lay the blame on victim Renato as the one who first assaulted him by striking him with a stool, and to defend himself, he took hold of his fan knife and did not realize that he was able to hit Renato on the chest. This is specious. Between him and Renato he has more teeth to grit, or axe to grind, or hatred to harbor because Renato prevented him for forcing his way on Renato's niece, Arlene. The rancour was more in his heart. He had more motive to do harm.

The Court finds the prosecution witnesses to be more credible than those of the accused no matter how the accused tried to cast doubt on the veracity of the testimonies of the witnesses for the prosecution. The latter's testimonies are eyeball testimonies and far from being perjured. No improper motives impelled the prosecution witnesses to testify as they did."

Accordingly, the trial court found the accused guilty beyond reasonable doubt of the crime charged. Appreciating the mitigating circumstance of voluntary surrender, the trial court sentenced the accused to an imprisonment term of reclusion perpetua, including its accessory penalties and costs, viz:

"WHEREFORE, judgment is hereby rendered finding the accused RAMONITO SAURE @ Dodong GUILTY beyond reasonable doubt of the crime charged and sentences him to a determinate indivisible imprisonment term of RECLUSION PERPETUA, and its accessory penalties, and to pay the costs.

In death indemnity, accused Saure is ordered to pay the heirs of Renato Lepasanda death indemnity in the amount of P50,000.00 and moral damages of P10,000.00.

SO ORDERED."44

The accused seasonably appealed to us contending that the trial court erred (1) in not appreciating his claim of self-defense; and (2) in holding the killing was attended by treachery and evident premeditation.45

It is hornbook doctrine that where self-defense is invoked, it is incumbent upon the accused-appellant to prove by clear and convincing evidence that [1] he is not the unlawful aggressor; [2] there was lack of sufficient provocation on his part; and [3] he employed reasonable means to prevent and repel an aggression.46 The accused-appellant must also rely on the strength of his own evidence and not on the weakness of that of the prosecution, for even if the latter were weak, it would not be disbelieved after his open admission of responsibility for the killing. On appeal, this burden becomes even more difficult as the accused-appellant must show that the court below committed reversible error in appreciating the evidence.47

At the heart of the claim for self-defense is the presence of an unlawful aggression committed against the accused-appellant. Without unlawful aggression, self-defense will not have a leg to stand on and this justifying circumstance cannot and will not be appreciated, even if the other elements are present. Unlawful aggression presupposes an actual, sudden, and unexpected attack, or imminent danger thereof.48 The person defending himself must have been attacked with actual physical force or with actual use of weapon.49

In the case at bar, the accused-appellant tried to prove that the unlawful aggression emanated from the victim who struck him with a stool, without any provocation on his part, and after their previous verbal altercation had already been settled. He further testified that he drew his knife to parry the blows but he was not aware that he had accidentally hit the victim, viz:

"Q:       When you returned to your respective table, what happened next, if any?

A:       Music were (sic) played and I dance and I asked permission from my companion that I will urinate.

Q.       Then what happened?

A:       When I passed by in front of their table, I was struck by a stool in (sic) my forehead and I was hit.

Q:       Who struck you with a stool?

A:       I was struck by Renato Lepasanda.

Q:       Were you hit?

A:       Yes, maam.

Q:       Where?

A:       Here.

Interpreter:

Witness is pointing his forehead.

COURT:

Where is the scar?

A:       No scar, You Honor just a swell.

COURT:

What happened next?

A:       He kept on beating me and I was not anymore aware that I hit him because I used my fan knife or Batangas knife to parry his blows."50

Upon his surrender at the police station, the accused maintained his evasive posture, viz:

"ATTY. LESIGUES:

When you surrender (sic) to the police authorities in Maasin, what did you tell them?

A:       I told them that I was attacked without provocation and I was asked who attacked me without provocation I told them I do not know the person.

COURT:

So you did not surrender because you stabbed somebody but because another person attacked you or gipareglahan ka?

A:       I surrendered because I told may be (sic) I wounded a person. Here is my fan knife you just verify the person whom I wounded and then they went to the hospital and when they returned I was told that the person was already dead and so they placed me in jail."51

Moreover, SPO3 Relito Degami, who testified for the defense, declared that when he escorted the accused to obtain medical attendance, accused merely told him that he was involved in some trouble, viz:

"Q:       Did Ramonito Saure tell you how did he sustain that swollen face?

A:       I was told by him that he was involved in a trouble.

Q:       Did he tell you that he killed a certain Renato Lepasanda?

A.:       No, sir.

Q:       Did he tell you that he killed the one who caused injuries to him?

A:       No, sir.

Q:       So, all that Ramonito Saure told you is that he was involved in a trouble?

A:       Yes, sir."52

We have ruled that the failure on the part of the accused to inform the police upon his surrender that he acted in self-defense in committing the crime charged is fatal to his defense.53 His testimony to the effect that he does not remember having stabbed the victim is inconsistent with self-defense, which in essence is an admission of the killing in order to preserve one's life or limb. Being evasive, such testimony does not help at all in establishing self-defense.54

Moreover, the defense admitted, without qualification, the victim's death certificate, which was offered to prove that the victim died of cardio-respiratory arrest resulting from massive blood loss due to multiple stab wounds. Oft-repeated is the rule that the presence of a large number of wounds, five (5) in this case, negates self-defense and indicates a determined effort to kill the victim.55

Finally, the accused-appellant tried to obtain corroboration from two of his companions that night. Remigio Lacerna, however, testified that he was not able to witness the entire incident because the lights were dim, and from his distance, he could only see an image of the actual events. While insisting that he saw the victim strike the accused-appellant first using a stool, Lacerna thought that the accused-appellant merely boxed the victim in retaliation. He did not see him stab the victim.

Just like Lacerna, Matias Sumampong claimed that he saw the victim strike the accused-appellant with the stool and that the latter stabbed the former only once. Seeing everything that transpired, Sumampong was struck by fear and did not bother to do anything despite the fact that both the accused and the victim are his relatives.

The trial court found the testimonies of Lacerna and Sumampong incredible and not worthy of belief. We reiterate that when the issue is one of credibility of witnesses, appellate courts will generally not disturb the finding of the trial court, unless it has plainly overlooked certain facts of substance and value that, if considered, might affect the result of the case.56 This is so because the latter is in a better position to decide the question, having heard the witnesses and observed their deportment and manner of testifying during trial. We have carefully examined the records and the accused has failed to convince us that there is room in this appeal for the application of the exception.

Morever, the accused-appellant has not shown that the witnesses for the prosecution had any ill-motive against him which would have moved them to falsely implicate him in the death of Renato Lepasanda. It is settled that where there is nothing to indicate that the principal witnesses for the prosecution were actuated by improper motive, the presumption is that they were not so actuated and their testimony are entitled to full faith and credit.57

All told, the plea of self-defense cannot be justifiably entertained. Accused-appellant having failed to discharge the burden proving his defense, his conviction necessarily follows, on the basis of his admission to the killing.

The lower court also held that the accused-appellant committed the crime of murder, as qualified by the treachery, which was specifically alleged in the information. 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 any defense which the offended party may make.58

Treachery is evidently present in the instant case as the accused-appellant, stealthily and without warning, rushed towards the victim from behind and stabbed him in the chest. The victim, who was then seated, was not aware of any impending danger. Although there had been prior verbal altercation, the victim had reasons to believe that the matter has already been settled after Alinsub's intervention. Considering the multitude of

persons who participated in the benefit dance, he was totally devoid of any suspicion that the accused-appellant, who was not a resident of Barangay Basak, would perform such a dastardly act. When the victim was trying to run away, the accused-appellant even pursued him and stabbed him repeatedly while trying to defend himself.

Although the information also specifically alleged evident premeditation as a qualifying circumstance to the offense charged, the lower court did not rely upon this circumstance to sustain a conviction of murder. Neither was evident premeditation appreciated as a general aggravating circumstance. The lower court explicitly stated that there was no other aggravating circumstance attendant to the commission of the offense.59

At the time of the commission of the crime, R. A. No. 7659 was already in effect. Thus, the applicable penalty for murder is reclusion perpetua to death. There being no aggravating circumstance but with one generic mitigating circumstance of voluntary surrender, the penalty imposable to the accused-appellant, in accordance with article 64 (2) of the Revised Penal Code should be the minimum period, which is reclusion perpetua.

Anent the damages, the court was correct in ordering the accused-appellant to pay the heirs of the victimP50,000.00 as civil indemnity.1âwphi1.nêt

WHEREFORE, the impugned decision of the Regional Trial Court of Maasin, Southern Leyte, Branch 25 in Criminal Case No. 1959 finding accused-appellant Ramonito "Dodong" Saure guilty beyond reasonable doubt of the crime of murder is affirmed. He is hereby sentenced to suffer the indivisible penalty of RECLUSION PERPETUA and to pay the heirs of the victim the amount of P50,000.00 as civil indemnity.

Costs against appellant.

SO ORDERED.

[G.R. No. 134534. August 29, 2002]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. SPO1 RAFAEL TRAPANE, Accused-Appellant.

D E C I S I O N

YNARES-SANTIAGO, J.:

On August 16, 1993, at 11:30 p.m., Barangay Captain Constantino Rebanal and Barangay Tanod Angel Almazan, both of Talongog, Oas, Albay, went to the Fernandos Hideaway beerhouse. Almazan ordered drinks and was joined at the table by one of the lady entertainers. Rebanal stayed outside on the porch of the beer house where he talked with Loreto Sotto and Pedio Rex. At 1:00 a.m., one of the lady entertainers at the table of a group of policemen inside the beerhouse went outside and approached Rebanal. She told him that she and the other ladies were getting intimidated by the policemen, who were drunk and displaying their firearms. Later, one of the policemen in the group, PO2 Arnulfo Valencia, stepped out on the porch. Rebanal introduced himself and politely told him that the lady entertainers were getting apprehensive over the public display of their firearms. Valencia retorted that Rebanal had no business meddling with their affairs since he was only a barangay captain. Then, Valencia hit Rebanal on the chest and kicked him in the lower abdomen. Since Valencia was tipsy, he fell off the porch. He tried to get up but fell down again.

At that moment, Rebanal looked inside the beerhouse and saw a man in a vest, later identified as accused-appellant SPO1 Rafael Trapane, approach Almazan while the latter was paying for his bill at the cashiers counter. Accused-appellant drew a gun from his waist and shot Almazan on the back. Although badly wounded, Almazan managed to run towards the road but fell down. Rebanal, on the other hand, ran towards the police station of Oas, Albay, which was 60 meters away from the beerhouse, to seek assistance.

When the police arrived at the scene, they found Almazan lying prostrate on the road. He was rushed to the Emergency Hospital of Ligao, Albay but unfortunately, he died upon reaching the hospital. [1]

Dr. Emma Fuentabella-Rebato, Municipal Health Officer of Oas, Albay, who conducted the post-mortem examination on Almazan, found that he suffered two gunshot wounds. She opined that the assailant was most probably positioned behind the victim since the point of entry of the gunshot wound was at the back of the body. She placed the cause of death as acute hypovolemic shock due to severe hemorrhage resulting in severe loss of blood. [2]

The defense, on the other hand, sought to establish that on the night of the shooting, accused-appellant went to Fernandos Hideaway beerhouse with PO2 Arnulfo Valencia and SPO3 Rodrigo Ramos to conduct a surveillance on certain armed men sighted in the beerhouse, pursuant to an agents report. The police officers wore civilian clothes, and when they arrived at the beerhouse they ordered beer and engaged the company of lady entertainers. After some time, team leader SPO3 Ramos decided to return to camp, but instructed SPO1 Trapane and PO2 Valencia that they should leave one at a time. PO2 Valencia was to go out first, followed by SPO1 Trapane. [3]

When PO2 Valencia got out of the beerhouse, three men suddenly attacked him. Valencia allegedly fell to the ground, while the three unidentified men tried to get his service pistol. He tried to prevent them from wresting the pistol from him by rolling on the ground until he reached the other side of the road. One of the aggressors tried to stab him with a knife. Suddenly two gunshots rang out, followed by another. [4]

It turned out that the shots came from accused-appellant SPO1 Trapane who affirmed that he fired warning shots because he saw PO2 Valencia being mauled by three unidentified men. However, no one seemed to heed the warning shots. When he saw one of the aggressors trying to stab Valencia, accused-appellant decided to shoot the aggressor on the lower portion of the body. After that, the aggressors fled. [5]

Defense witness Rosemarie Dionson corroborated the testimonies of accused-appellant, SPO3 Rodrigo Ramos and PO2 Arnulfo Valencia. She stated that she saw PO2 Valencia being mauled by three men, two of whom she identified as Rebanal and Almazan. She also saw that Almazan was holding a knife. She got scared and ran back into the beerhouse. [6]

SPO1 Trapane, SPO3 Ramos and PO3 Valencia were charged with the murder of Angel Almazan. [7]   After preliminary investigation, Judge Aurora Binamira-Parcia of the Municipal Circuit Trial of Ligao-Oas, recommended the indictment of accused-appellant SPO1 Rafael Trapane only. [8]   On November 26, 1993, an information was filed with the Regional Trial Court of Ligao, Albay, Branch 12 against SPO1 Rafael Trapane, to wit:

That on or about 1:30 oclock in the morning of August 17, 1993, at Brgy. Iraya Norte, Municipality of Oas, Province of Albay, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, did then and there, wilfully, unlawfully and feloniously and with treachery attack and shoot ANGEL ALMAZAN Y SIAL to death, to the damage and prejudice of his legal heirs.

ALL ACTS CONTRARY TO LAW.[9]

On May 21, 1998, the accused-appellant was convicted of murder in a decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the prosecution having proven the guilt of the accused, Rafael B. Trapane, beyond reasonable doubt, this court finds him GUILTY as charged for the crime of MURDER. Accordingly, he is hereby sentenced, to suffer the penalty of RECLUSION PERPETUA, and to suffer the accessory penalties provided for by law. Further, to indemnify the heirs of the deceased in the amount of EIGHTY THOUSAND PESOS (P80,000.00) as actual damages and FIFTY THOUSAND PESOS (P50,000.00) as moral and exemplary damages and to pay the costs.

SO ORDERED.[10]

Hence, the instant appeal, based on the following errors:

I

THE HONORABLE REGIONAL TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED DESPITE THE PRESENCE OF JUSTIFYING CIRCUMSTANCE OF

VALID SELF-DEFENSE OR IN NOT CONSIDERING IN FAVOR OF THE ACCUSED THE JUSTIFYING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE (DEFENSE OF A STRANGER).

II

ASSUMING THAT THE ACCUSED IS GUILTY OF KILLING THE VICTIM, THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED OF THE CRIME AS CHARGED, INSTEAD OF THE CRIME OF CONSUMMATED HOMICIDE ONLY, CONSIDERING THE CLEAR ABSENCE OF THE MODIFYING CIRCUMSTANCE OF TREACHERY IN THE COMMISSION THEREOF.[11]

Accused-appellant argues that in shooting Almazan, he merely acted in defense of a stranger. Further, he claims that, if at all, he can only be convicted of homicide since there was no treachery in the killing of the victim.

The justifying circumstance of self-defense or defense of stranger, like alibi, is a defense which can easily be fabricated. [12]   Hence, it is inherently weak, and in order that it may be successfully invoked, accused-appellant must prove the following elements: (1) unlawful aggression by the victim; (2) reasonable necessity of the means to prevent or repel it; and (3) the person defending was not induced by revenge, resentment, or other evil motive. [13]   Moreover, he cannot rely on the weakness of the prosecution but on the strength of his own evidence, for even if the evidence of the prosecution were weak it could not be disbelieved after the accused himself admitted the killing. [14]

Hence, while it is a cardinal principle in criminal law that the prosecution has the burden of proving the guilt of the accused, the rule is reversed where the accused admits committing the crime but only in his or anothers defense. [15]   Ei incumbit probatio qui dicit, non que negat he who asserts, not he who denies, must prove. [16]

Defense, whether of ones self, a relative or a stranger, as a justifying or mitigating circumstance requires as a condition sine qua non the element of unlawful aggression on the part of the victim.[17]   Unlawful aggression presupposes an actual, sudden, and unexpected attack, or imminent danger thereof. The person defending himself must have been attacked with actual physical force or with actual use of weapon. [18]

In the case at bar, the element of unlawful aggression is absent. Aside from accused-appellants self-serving statement, there is nothing to corroborate his statement that the victim attempted to stab PO2 Valencia. Defense witness Rosemarie Dionson testified that she saw the victim holding a knife, then out of fear she retreated into the beerhouse and hid behind the counter. [19]   She did not categorically state that she saw the victim thrust the knife towards PO2 Valencia.

Even assuming that the victim, Rebanal and an unidentified person ganged up and mauled PO2 Valencia, accused-appellants act of firing his gun at them was not a reasonable means to repel the attack. We are not convinced that the victim attempted to stab PO2 Valencia. Hence, the latter was in no real danger.

In any event, we sustain the trial courts evaluation of the evidence. It found the testimonies of the prosecution witnesses, particularly Constantino Rebanal, straightforward and credible. On the contrary, the trial court noted that the version of the defense was inconsistent with the normal course of things. It also disbelieved the testimony of defense witness Rosemarie Dionson.

After a careful review of the transcripts and evidence on record, we agree with the trial courts finding that the testimony of Constantino Rebanal was forthright and more worthy of faith and credence. He declared that from a distance of three meters, he saw accused-appellant shoot Almazan point blank at the back. He also testified that it was PO2 Valencia who was the unlawful aggressor. [20]   It is hornbook doctrine that the trial courts evaluation of the testimony of the witnesses is accorded great respect by the appellate courts by reason of its unique opportunity to observe the witnesses on the stand and to determine whether they are telling the truth or not. [21]   This Court will generally not interfere with the judgment of the trial court in passing upon the credibility of witnesses unless there appears on record some fact or circumstance of weight and influence which has been overlooked and if considered would affect the outcome of the case.[22]   None exist in the case at bar. Besides, there appears no reason for Rebanal to falsely impute such a serious crime on accused-appellant. Absent any proof thereof, the presumption is that witnesses were not actuated by improper motive. [23]   We believe that Rebanal was impelled by a genuine desire to see that justice is dispensed.

However, we do not agree with the trial court that treachery attended the killing. There is treachery when the offender commits any of the crimes against persons, employing means, methods, or forms in the execution thereof, tending directly and specially to insure its execution without risk to himself arising from the defense which the offended party might make. [24]   Thus, to appreciate treachery, two requisites must concur: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or retaliate; and (2) the deliberate or conscious adoption of the means of execution. [25]   In the case at bar, the events which led to the shooting were so spontaneous that it cannot be said that accused-appellant deliberated on the means of execution. Hence, the crime committed is only Homicide.

Under Article 249 of the Revised Penal Code, Homicide is punishable by reclusion temporal. Considering that there are neither mitigating nor aggravating circumstances in this case, the penalty shall be imposed in its medium period. Accused-appellant shall likewise be entitled to the benefits of the Indeterminate Sentence Law. Thus, he shall be sentenced to a penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum.

The damages awarded by the trial court needs modification. The amount of actual damages must be substantiated. To justify an award of actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable by the injured party. [26]   In the case at bar, only the amount of P15,000.00 can be awarded as funeral expenses, since these were the only damages duly receipted. [27]

Likewise, the award by the trial court of moral and exemplary damages of P50,000.00 must be modified. Moral and exemplary damages rest on different jural foundations and cannot be lumped together as one. Exemplary damages are awarded in criminal offenses only when the crime was committed with one or more aggravating circumstances. [28]   Since there were no aggravating circumstances in this case, exemplary damages may not be awarded. However, considering the pain and anguish of the victims family brought about by his death, the award of P50,000.00 as moral damages is justified. [29]   Finally, civil indemnity of P50,000.00 should be awarded, the same being mandatory upon the finding of the fact of killing. [30]

WHEREFORE , in view of the foregoing, the appealed decision of the Regional Trial Court of Ligao, Albay, Branch 12, is MODIFIED. Accused-appellant SPO1 Rafael Trapane is found guilty beyond reasonable doubt of the crime of Homicide and is sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. Further, accused-appellant is ordered to pay the heirs of the deceased, Angel Almazan, the amounts of P15,000.00 as actual damages; P50,000.00 as moral damages; and P50,000.00 as civil indemnity. Costs de officio.

SO ORDERED.

G.R. Nos. 148145-46 July 5, 2004

PEOPLE OF THE PHILIPPINES,appellee, vs.

FELIX VENTURA y QUINDOY and ARANTE FLORES y VENTURA,appellants.Facts: The spouses Jaime and Aileen Bocateja were, in the early hours of February 23, 2000, fast asleepin their room on the ground floor of their two-storey house at Alunan-Yulo in Bacolod City, NegrosOccidental. The room had a glass wall with a glass sliding door which was closed but not locked. Thekitchen light was open, as was the light in the adjoining room where the couple's young children,Jummylin and Janine, were sleeping. Their niece, Aireen Bocateja, and Jaime's elder daughter, RizzaMae, were asleep in their rooms on the second floor.6At around 2:00 a.m.,7 Jaime was roused from hissleep by appellant Ventura who, together with his nephew appellant Flores, had stealthily entered thecouple's room after they gained entry into the house by cutting a hole in the kitchen door.As establishedby the testimonial and object evidence for the prosecution, the following transpired thereafter:AppellantVentura pointed a revolver at Jaime's face, announced a hold-up, hit Jaime on the head with the gun andasked him for his keys.8When appellant Ventura struck him again, Jaime called out for help and tried tograb the revolver. The two men then struggled for possession of the gun. As Jaime almost succeeded inwresting possession of the gun from him, appellant Flores shouted to appellant

Ventura to stab Jaime.Using the knife hewas carrying, appellant Flores stabbed Jaime three times. Jaime thereupon releasedthe gun, threw a nearby plastic stool at the jalousy glass window causing it to break and cried out forhelp.9In the meantime, Aileen who had been awakened, began shouting for help as she saw her husbandin mortal danger. Appellant Flores stabbed her, however, with his knife, and although Aileen tried todefend herself with an electric cord, appellant Flores continued stabbing her.10Awakened by thecommotion, Aireen descended the stairs and saw the knife wielding appellant Flores whom sherecognized as a former employee of the butcher shop of the Bocataje spouses. Pleading with appellantFlores not to harm her, Aireen ran back upstairs into Rizza Mae's room, and the two called to theirneighbors for help. Appellants Ventura and Flores thereupon fled the Bocateja house,12bringing nothingwith them.

Issue: Whetjer or not the court erred in considering evident premeditation as a qualifying circumstance?Ruling: The essence of evident premeditation is that the execution of the criminal act must be precededby cool thought and reflection upon the resolution to carry out the criminal intent during a space of timesufficient to arrive at a calm judgment.39 For it to be appreciated, the following must be proven beyondreasonable doubt: (1) the time when the accused determined to commit the crime; (2) an act manifestlyindicating that the accused clung to his determination; and (3) sufficient lapse of time between suchdetermination and execution to allow him to reflect upon the circumstances of his act.40By appellants' argument, even if appellant Ventura became jealous when he learned of the illicit affairbetween his wife and Jaime, it is not, by itself, sufficient proof that he determined to kill the latter; that withJaime's testimony that appellant had announced a "hold-up," they, at most, intended to rob, but not kill thespouses; that their only purpose was to confront Jaime regarding his supposed affair with appellantVentura's wife, Johanna; and that if they had truly intended to kill Jaime, then appellant Ventura would nothave bothered to awaken him, but would just have shot him in his sleep.

Vicky Ty vs. People (G.R. No. 149275)

Facts: Ty’s mother was confined in Manila Doctor's Hospital to which a medical bill amounting to 600,000

pesos was made to be paid to TY, after signing a contract of responsibility with the hospital. Ty, issued 7

checks to cover the said expenses, all of which were dishonored for being drawn against a closed a account.

Manila Doctors Hospital then instituted criminal actions against Ty for violation of BP22. 

In her defense she alleged that she issued the checks involuntarily because her mother threatened to

commit suicide due to the inhumane treatment she allegedly suffered while confined in the hospital. She

further claimed that no consideration was obtained by her because all the checks were made as payment to

the medical bills. 

Issue: Whether or not valuable consideration exists. 

Held: Under Section 24 of the Negotiable Instruments Law, it is presumed that valuable consideration exist

upon the issuance of a check in the absence of evidence to the contrary.Valuable consideration is any

benefit, interest or profit accruing to the party. The use of the hospital facilities and services may be deemed

as such.

PEOPLE v. DELIMA [46 Phil. 738 (1922)]November 10, 2010Facts: Lorenzo Napoleon escaped from jail. Poiiceman Felipe Delima found him in the house of Jorge Alegria, armed with a pointed piece of bamboo in the shape of a lance. Delima ordered his surrender but Napoleon answered with a stroke of his lance. The policeman dodged it, fired his revolver but didn’t hit Napoleon. The criminal tried to ran away, not throwing his weapon; the policeman shot him dead. Delima was tried and convicted for homicide; he appealed.

Held: The SC ruled that Delima must be acquitted. The court held that the killing was done in performance of a duty. Napoleon was under the obligation to surrender and his disobedience with a weapon compelled Delima to kill him. The action was justified by the circumstances.

People vs. Ernesto Ulep G.R. no. 132547 September 20, 2000Facts:SPO1 Ernest Ulep is convicted for the murder of Buenaventura Wapili. His case isautomatically elevated for review to the Supreme Court due to the imposed penalty of death.On December 22, 1995 at around 2:00am at Mundog Subdivision, Poblacion,Kidapawan, Cotabato, Buenaventura Wapili was having a high fever and was heard talkinginsensibly to himself in his room. Dario Leydan, his brother-in-law, convinced him to come outand talk. But Wapili refused. A little later, there was a disturbance inside the room as if Wapiliwas smashing the furniture, until he was already running without any particular direction as ifcompletely gone crazy.After several attempts to pacify Wapili, Leydan went to another neighbor to solicit herhelp. The neighbor, Norma Plando was a policewoman who radioed SPO1 Ernesto Ulep, SPO1Edilberto Espadera and SPO2 Crispin Pillo.The three responding policemen, armed with M-16 rifles, arrived around 4:00am. SPO1Ulep fired a warning shot and told Wapili to put down his weapon or they would shoot him.However, Wapili refused and instead advanced towards the police officers. At about two orthree meters away, SPO1 Ulep shot various parts of the victim¶s body. As the victim slumped tothe ground, SPO1 Ulep fired another bullet into his head.An Information for murder was filed against SPO1 Ulep through the Office of theOmbudsman for the Military. The accused pleaded not guilty to the charge and insisted that heacted in self-defense.On October 27, 1997, the trial court convicted the accused of murder and sentenced himto death.

Issue:Whether or not the circumstance of fulfillment of duty should be appreciated in the case.Whether or not the circumstance of self-defense is present.Whether or not the qualifying circumstance of treachery should be appreciated in thecase as to qualify the offense from homicide to murder.

Held:In order that the circumstance of fulfillment of duty be appreciated, two requisites mustconcur. First, that the appellant acted in the performance of a duty or is in the lawful exercise ofa right or an office; and second, that the injury caused or the offense committed is the

necessary consequence of the due performance of duty or the lawful exercise of such right oroffice.In the instance case, the second requisite is absent. When he fatally shot the victim inthe head even after the latter slumped to the ground cannot be exonerated. Obviously, it wasunnecessary even perhaps in his desire to take no chances.For the appreciation of self-defense, the elements are: the existence of unlawfulaggression on the part of the person injured or killed by the accused; reasonable necessity ofthe means employed to prevent or repel it; and the lack of sufficient provocation on the part ofthe person defending himself.

In the case, the records show that when the appellant fired while the victim was alreadylying on the ground affirmed the absence of aggression. The first indispensable requisite for selfdefense being absent is fatal to the claim.As to treachery, it is appreciated whenever the offender commits any of the crimesagainst persons, employing means, methods, or forms in the execution thereof which tenddirectly and specially to insure its execution, without risk to himself arising from the defensewhich the offended party might make.The accused fired a warning shot in the air and specifically ordered the victim to lowerhis weapon. This shows that the appellant did not seek the killing of Wapili on purpose. Theappellant¶s decision to kill was made in an instant and the victim¶s helpless position was merelyincidental to his having been previously shot.The presence of the incomplete justifying circumstance of fulfillment of a duty or lawfulexercise of a right is deemed a special or privileged mitigating circumstance. Such circumstancecannot be offset by aggravating circumstances but also reduces the penalty by one or twodegrees than that prescribed by law in accordance to Article 69 of the RPC.Furthermore, the court credited in favor of the appellant the presence of the mitigatingcircumstance of voluntary surrender. The police blotter shows that appellant immediatelyreported to the police headquarters and voluntarily surrendered himself after the incident.In appreciation of the incomplete justifying circumstance of fulfillment of a duty or lawfulexercise of a right lowered the penalty by one degree from reclusion temporal to prision mayor.The existence of the mitigating circumstance of voluntary surrender imposed the penalty ofprision mayor in its minimum period.The Supreme Court held SPO1 Ulep guilty of Homicide instead of Murder. He issentenced to an indeterminate prison term of 4 years, 2 months and 10 day of prisioncorreccional medium as minimum, to 6 years, 4 months and 20 days of prision mayor minimumas maximum. He is further ordered to indemnity the heirs of the victim in the amount of P50,000and to pay the costs.

G.R. No. 146664 - February 28, 2002

JOHN ANGCACO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent.

MENDOZA, J.:

This is a petition for review on certiorari of the decision,1 dated November 29, 2000, of the Court of Appeals, which affirmed with modification the decision,2 dated January 31, 1996, of the Regional Trial Court, Branch 1, Puerto Princesa City, finding petitioner John Angcaco guilty of murder and sentencing him accordingly.

Petitioner John Angcaco and his co-accused in the trial court, namely, Ramon Decosto, Protacio Edep, Lydio Lota, and Mario Felizarte, were members of the Integrated National Police of Taytay, Palawan. At the time of the incident, they were serving a warrant of arrest issued by the Municipal Trial Court of Taytay on Restituto Bergante, who was wanted in connection with a robbery case. Edep was acting station commander, while Restituto Bergante was the barangay captain of Bato, Taytay, Palawan. The information against petitioner and his co-accused alleged -

That on or about the 25th day of September, 1980, more or less 4:00 o'clock in the morning in barangay Bato, municipality of Taytay, province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, armed with guns, and with treachery and evident premeditation and with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault, fire at and shoot FREDDIE GANANCIAL, hitting the latter with gunshots on vital parts of his body and inflicting upon him multiple gunshot wounds which were the direct and immediate cause of his instant death.3

When arraigned on June 3, 1981, all of the accused, with the exception of Ramon Decosto, entered a plea of not guilty to the crime charged.4 Decosto, who failed to attend the hearing on that date, was later arraigned on June 23, 1981, during which he entered a plea of not guilty. Thereafter trial ensued.

The prosecution presented seven witnesses: Noe Bergante,5 Noel Bergante, Dr. Alberto Lim, Honorato Flores, Henry Pulga, Antonio Arosio, and Adolfo Jagmis. The gist of their testimonies is as follows:

At around 4 o'clock in the morning of September 25, 1980, Noe Bergante and his brother Noel Bergante and his cousin Freddie Ganancial were awakened by the sound of gunfire while they were asleep in their house in Bato, Taytay, Palawan. Their mother, who was frightened, fainted and had to be helped by Noe. Noel went to the kitchen and, from there, saw Protacio Edep fire his carbine, as he shouted, "Kapitan, you come down, this is [a] peace officer." He was apparently referring to Restituto Bergante. Noel answered that his father was not in the house, having gone to Puerto Princesa. Edep then ordered the men in the house to come out. Noel accordingly went to the gate and later called Noe to also come out of the house. Noe and his cousin, Freddie Ganancial, did as bidden.

Once they were outside the house, Noe and Freddie were flanked by petitioner Angcaco on the right side and accused Ramon Decosto on the left side. Decosto pointed an armalite at the two and warned them not to run. Noe and Freddie joined Noel Bergante. Protacio Edep approached Freddie saying, "You are tough," and pushed him. Then, shots rang out from the armalite and short firearm of Decosto and Edep, as a result of which Freddie Ganancial turned around and dropped to the ground face down. Decosto was around three meters away from Freddie.

In fright, Noe and Noel ran inside the house. After a few seconds, Noe saw, through the window, Lota and Angcaco turning over the body of Freddie Ganancial. After briefly leaving the body, both came back 15 minutes later. Noe said Lota brought with him an object wrapped in a newspaper, which Noe surmised was a knife. Lota placed the object in the right hand of Freddie Ganancial. Noel, on the other hand, said that he returned to the crime scene and recovered two empty shells which he gave to a certain Major Silos. Noe reported the matter to Barangay Tanods Sabino Mahinay and a certain Ramon.6

Antonio Arosio, a neighbor of the Bergantes, corroborated the testimonies of Noe and Noel Bergante. According to Arosio, at around 4:30 a.m. of September 25, 1980, while he was asleep in his house in Bato, Taytay, Palawan, he was awakened by the sound of gunfire. He said he heard a commotion outside, followed by another volley of shots. He claimed he recognized by their voices some of the persons involved, namely, Protacio Edep, Noel Bergante, and Freddie Ganancial.

Arosio claimed that accused Decosto and Felizarte fetched him from his house a short time later and took him to Edep, who was then in the house of the barangay captain. Arosio was asked about the whereabouts of the barangay captain. He told Edep that Restituto Bergante, the barangay captain, had gone to Puerto Princesa two days earlier.

Arosio testified that on his way home he saw a person lying on the ground in a prone position. He later learned it was Freddie Ganancial. Arosio identified in court the policemen whom he saw that morning, that is, Edep, Decosto, Felizarte, Lota, and Angcaco.

On cross-examination, Arosio claimed that he was investigated by a police officer, whose name he could not remember, three years after the incident. The investigation was held in the house of Barangay Captain Restituto Bergante, who told him that he would testify in this case. Although he was reluctant to testify because of fear, Arosio said he finally agreed to do so in 1984. Prior to the incident, he had not heard Edep's voice but only assumed that the voice he heard that morning was that of Edep as the latter was the highest-ranking policeman he later saw.7

Although Dr. Romeo D. Valino conducted the postmortem examination on the body of Freddie Ganancial, it fell to Dr. Alberto H. Lim, Assistant Provincial Health Officer in Palawan, to identify the medico-legal report of Dr. Valino and to explain its contents in view of Dr. Valino's death pending the trial of the case.

Dr. Valino's report stated in pertinent parts:

Physical Examination:

1. Gunshot wound lateral aspect D/3rd arm right (entrance) with contusion collar thru and thru passing thru the medial aspect arm right, entering to the lateral aspect mid axillary line at the level of the 9th rib hitting ascending colon and small intestine.

2. Gunshot wound at the level of the 7th rib at anterior axillary line right with contusion collar (entrance) to the epigastric region (exit) 10 cm[s]. x 3 cm[s]. hitting the liver (mascerated).

3. Gunshot wound subcostal region right at the level of mid clavicular line (entrance) right side to the subcostal region left side (exit at the level of mid mammary line).

4. Stomach with alcoholic smell.

5. Clotted blood at abdominal cavity, about 500 cc.

Cause of Death:

- Shock secondary to internal and external hemorrhage due to gunshot wounds - body and abdomen.8

Dr. Lim identified the medical report signed by Dr. Valino because he was familiar with the handwriting of the latter. As regards the contents of the medical certificate, Dr. Lim stated that Freddie Ganancial, alias Edgar Gallego, 25 years of age, died as a result of shock secondary to internal and external hemorrhage due to gunshot wounds on the body and abdomen, which means that the victim died because of loss of blood resulting in shock due to a gunshot wound in the abdomen. He testified that the victim sustained three gunshot wounds. The first gunshot entered the body at the lateral aspect distal third arm with contusion collar, the bullet entering the lateral aspect midaxillary line at the level of the ninth rib and hitting the colon and small intestine. The second gunshot wound was located at the right side of the body at the seventh rib at right anterior axillary line with contusion collar (entrance), the bullet passing through the epigastric region and hitting the liver, which was mascerated. The third gunshot wound was in the right subcostal region at the level of the midclavicular line (entrance) right side to the left side of the subcostal region, the bullet exiting below the nipple.

On cross-examination, Dr. Lim said that based on the findings of the medical report, the victim had been taking liquor prior to his death. He also admitted that he had not undertaken studies on the identification of handwriting. Dr. Lim claimed that he identified the signature of Dr. Valino in the medical report on the basis of the other reports the latter had submitted to their office.9

Honorato Flores, senior ballistician of the National Bureau of Investigation (NBI) in Manila, identified the ballistics report he had prepared and the shell fragments presented to him for examination. He said that the fragments could have possibly been caused by the impact of the bullet on a human being.

When cross-examined, Flores said that no armalite rifle was given to him but only shell fragments were presented to him for examination. He said that the gun and the lead would have to be examined by using the bullet comparison microscope to determine whether the lead was fired from the same gun. A bone or a cement flooring could have caused the shell fragments to break, according to Flores. Upon inquiry by the trial court, he said it was possible that a piece of copper and the lead formed part of one bullet, but it was also possible that they did not.10

Sgt. Henry Pulga, acting station commander of Taytay, Palawan, testified that on October 6, 1980, he investigated the complaint filed by Barangay Captain Bergante regarding the killing of the latter's nephew, Freddie Ganancial. He identified the affidavits of Mario Felizarte (Exh. H) and Ramon Decosto (Exh. I), which he himself prepared. According to Pulga, he informed Felizarte and Decosto of their rights to counsel and to remain silent and explained to them the import of these rights. He said that Felizarte and Decosto voluntarily gave their statements before him, although Pulga also admitted that the two did not have counsel to assist them during the investigation.11

The last witness for the prosecution was Adolfo D. Jagmis, the chief investigator of the Palawan Constabulary based in Tiniguiban. He testified that on October 6, 1980 he investigated Edep, Lota, and Angcaco. He said that after Angcaco was apprised of his constitutional rights, the latter executed a statement (Exh. J),12 which Jagmis identified in court. But Jagmis admitted that the statement was made without the assistance of counsel.13

On cross-examination by counsel for accused Decosto, Jagmis was confronted with the affidavit of Angcaco, in which the latter identified an armalite which he allegedly used at the time of the incident. Jagmis said the armalite and the lead recovered from the scene were both given to the Provincial Fiscal's Office.

The defense presented as its witnesses Protacio Edep, Ramon Decosto, John Angcaco, and Lydio Lota, whose testimonies are as follows:

In the early morning of September 25, 1980, petitioner and his co-accused, led by Edep, went to the house of Restituto Bergante in Bato, Taytay, Palawan to serve a warrant for the latter's arrest. When they reached the house, Edep and his men took positions as they had been warned that Restituto Bergante might resist arrest. Decosto and Angcaco were each armed with armalites, Lota had a carbine, Felizarte a revolver, and Edep a carbine and a revolver. Decosto was on the left side of Edep, around seven to 10 meters from the latter. Angcaco, on the other hand, was on right side of Edep, around four to seven meters from the latter. Edep called Restituto Bergante to come out of the house as he (Edep) had a warrant for his arrest. Restituto's wife replied that her husband was not in the house, having gone to Puerto Princesa. A commotion then took place inside the house and, shortly after, petitioner saw a man coming down the house. They fired warning shots to stop the man, but petitioner saw another person with a bolo near Edep. He shouted, "Sarge, this is the man who tried to hack you!," and shot the unidentified man, who fell to the ground face up. At the time of the incident, Decosto was on the left side of Edep, while petitioner, Felizarte, and Lota were on the right side of Edep. They later learned that the person killed was Freddie Ganancial.

Edep conducted an investigation and recovered from the scene of the crime empty shells from armalite bullets, which he turned over to the provincial fiscal. Edep and his men were then taken to Taytay and investigated by P/Sgt. Adolfo Jagmis. Thereafter, Edep and his men learned that they were charged with murder. An administrative complaint for grave misconduct was likewise filed against them in the National Police Commission, but the case was dismissed.14

On January 31, 1996, the trial court rendered a decision, the dispositive portion of which reads:

WHEREFORE, after a careful evaluation of the evidence on record, this court is of the considered opinion, and so holds, that accused John Angcaco, is GUILTY beyond reasonable doubt of the crime of Murder defined and penalized in Article 248 of the Revised Penal Code. With the presence of the mitigating circumstance of lack of intention to commit so grave a wrong and with the application of the Indeterminate Sentence Law, this Court hereby imposes upon him the penalty of imprisonment ranging from seventeen (17) years and four (4) months of reclusion temporal as minimum, to twenty (20) years of reclusion temporal, as maximum, and to pay the heirs of Freddie Ganancial the amount of fifty thousand pesos (P50,000.00) as death indemnity.

Co-accused Protacio Edep, Ramon Decosto, Lydio Lota and Mario Felizarte are ordered ACQUITTED for insufficiency of evidence.15

Petitioner Angcaco filed an appeal with the Court of Appeals, which affirmed with modification the trial court's decision. The dispositive portion of the Court of Appeals decision reads:

WHEREFORE, with the modification only that the mitigating circumstance of incomplete fulfillment of a lawful duty should be appreciated in determining the imposable penalty, not lack of intention to commit so grave a wrong, the trial court had correctly imposed the penalty of imprisonment ranging from seventeen (17) years and four (4) months of reclusion temporalas minimum, to twenty (20) years of reclusion temporal as maximum the questioned decision is affirmed in all other respects.

Costs against the accused.

SO ORDERED.16

Hence this appeal. Petitioner raises the following issues -

I. WHETHER OR NOT THE COURT OF APPEALS OVERLOOKED AND/OR MISCONSTRUED THE EVIDENCE FOR THE DEFENSE THAT ALL THE ELEMENTS OF DEFENSE OF [THE] PERSON OR RIGHTS OF A STRANGER ARE PRESENT.

II. WHETHER OR NOT DUE PROCESS OR THE RIGHTS OF PETITIONER-ACCUSED HAS BEEN VIOLATED WHEN THE HONORABLE COURT OF APPEALS OVERLOOKED OR FAILED TO APPRECIATE THE WEAKNESS OF THE PROSECUTION'S EVIDENCE AND ITS FAILURE TO ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.

III. WHETHER OR NOT THE APPELLATE COURT ERRED IN NOT ACQUITTING [PETITIONER] APPELLANT.17

First. Petitioner Angcaco argues that the prosecution evidence failed to prove his guilt beyond reasonable doubt. He points out inconsistencies and contradictions in the testimonies and affidavits of prosecution witnesses Noel and Noe Bergante.

We agree with accused-appellant's contention. Generally, contradictions between the contents of the witness' affidavit and his testimony in court do not impair his credibility because affidavits are usually taken ex parte and, for that reason, often incomplete and inaccurate.18An affidavit will not always disclose all the facts and will even at times, without being noticed by the witness, inaccurately describe the occurrences related therein. Thus, we have time and again held that affidavits are generally inferior to testimonies in court. Affidavits are often prepared only by the investigator without the affiant or witness having a fair opportunity to narrate in full the incident which took place, whereas in open court, the latter is subjected to cross-examination by counsel for the accused.19

However, where the discrepancies between the affidavit and the witness' testimony on the stand are irreconcilable and unexplained and they refer to material issues, such inconsistencies may well reflect on the witness' candor and even honesty and thus impair his credibility.20 Hence, we have recognized as exceptions to the general rule instances where the narration in the sworn statement substantially contradicts the testimony in court or where the omission in the affidavit refers to a substantial detail which an eyewitness, had he been present at the scene at the time of the commission of the crime, could not have failed to mention.21 The case at bar is such an instance.

Noe Bergante pointed to Decosto and Edep as the ones who shot Freddie Ganancial.22 However, in his affidavit, dated November 24, 1980, Noe pointed to Decosto as the lone assailant. Noe also failed to mention the presence of Angcaco at the scene at the time of the commission of the crime.23 Noe tried to explain these material omissions in his affidavit by claiming that he mentioned these details to the fiscal but the latter must have forgotten to include them in the affidavit because he (the fiscal) was in a hurry to leave that day.24 This explanation is too pat to be accepted. To begin with, Noe admitted that the investigating fiscal, Fiscal Vergara, explained to him the contents of the affidavit before he (Noe) signed it.25 Noe, therefore, could have noticed the omission of such vital matters which concerned the identification of the persons responsible for his cousin's death and called attention to such omission. The identity of the malefactors is too important a detail for anyone who allegedly witnessed the incident to overlook its omission in the very statement of the incident one is giving. The omissions suggest Noe's ignorance of the details of the incident as well as his readiness to perjure himself in order to implicate all of the accused in this case.

Noel Bergante fared no better than his brother on the witness stand. On direct examination, Noel, like his brother, identified Edep and Decosto as the assailants of Freddie Ganancial.26 However, Noel's affidavit, dated November 24, 1980, only mentioned Decosto as the person responsible for the killing of Freddie Ganancial.27 Worse, Noel executed an affidavit earlier on September 26, 1980, in which he identified Jardiolin,28 Mario Toledo, Lydio Lota, and Mario Gonzales as the companions of Decosto at the time of the commission of the crime.29 But, in his testimony, Noel said that Decosto's companions were Edep, Angcaco, Felizarte, and Lota.30 When confronted with the discrepancy, Noel said that he really meant to refer to Angcaco, instead of Jardiolin, and to Ramon Decosto instead of Toledo. When further questioned, Noel said that he was referring to Lota when he mentioned the name of Toledo,31 thus creating more confusion with his answers. These contradictions, when taken together with Noel's claim that he had known Jardiolin, Felizarte, and Angcaco for a long time, cast serious doubts on his credibility.

Thus, prosecution witnesses Noel and Noe Bergante failed to give a credible and consistent account of the identity of the person or persons responsible for the killing of Freddie Ganancial. There is apparent from a reading of their testimonies a manifest tendency to improvise, modify, and even contradict themselves in order to implicate each of the accused. It is in fact doubtful whether Noe and Noel saw what they testified about. Even the trial court disregarded the testimonies of Noe and Noel Bergante and acquitted Edep and Decosto in spite of their identification by these witnesses.

We are thus left with no clear picture of the events that transpired on September 25, 1980 and of the identity of the shooter or shooters. It cannot be overemphasized that the constitutional presumption of innocence demands not only that the prosecution prove that a crime has been committed but, more importantly, the identity of the person or persons who committed the crime.32 But in the case at bar, what passed for the prosecution evidence was a befuddling amalgamation of half-truths and lies obviously fabricated by these supposed eyewitnesses to hold responsible each of the accused in this case for the killing of their cousin. For this reason, we hold that the prosecution evidence failed to meet the quantum of proof beyond reasonable doubt necessary for conviction in a criminal case.

Second. The conviction of petitioner Angcaco must, however, be upheld in view of his admission that he shot Freddie Ganancial. The rule is that while the prosecution has the burden of establishing the guilt of the accused, once the defendant admits commission of the act charged, although he invokes a justification for its commission, the burden of proof is shifted to him to prove the said justifying circumstance.33 Petitioner Angcaco cannot rely on the weakness of the evidence for the prosecution, for even if it is weak, it cannot be disbelieved after he has admitted the killing itself.34 This is because a judicial confession constitutes evidence of a high order. It is presumed that no sane person would deliberately confess to the commission of an act unless moved by the desire to reveal the truth.35

Petitioner claims that he acted in defense of Sgt. Protacio Edep, whom Freddie Ganancial was about to strike with a bolo. We do not agree. For petitioner to successfully claim the benefit of Art. 11, par. 3 of the Revised Penal Code, there must be proof of the following elements: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3) the person defending be not induced by revenge, resentment, or other evil motive.

Unlawful aggression on the part of the victim, which must be sufficiently proven by the defense,36 is present when there is actual or imminent peril to one's life, limb, or right. There must be actual physical force or actual use of a weapon by the victim himself.37 In this case, it is contended that the victim, who was armed with a bolo, approached Edep menacingly. But, there is no other competent evidence to corroborate this self-serving claim. Edep testified that he heard petitioner's warning that an armed man was behind him.38However, when asked about the weapon allegedly held by the victim, Edep replied that he did not see any as he turned around to face his supposed assailant.39 It was only later that Edep claimed seeing a knife in the area where the victim fell.40 One is thus led to suspect that Edep's claim that he saw a knife was a mere afterthought designed to exculpate his fellow officer from the charges against him.

Petitioner's own testimony suffers from inconsistencies and improbabilities on material points.

First, there was no reason for the victim, Freddie Ganancial, to attack Sgt. Edep, who was looking for Restituto, because the latter was not there in his house, having earlier gone to Puerto Princesa. In fact, Edep admitted he was about to order his men to leave the premises when they found that their quarry was not there. The victim himself was not wanted by the police. Dr. Lim said Ganancial was drunk. In that condition, he could have easily have been overpowered by any member of the arresting team, if he made any aggressive move, without shooting him to prevent him from doing harm to the latter.

Second, when cross-examined about the bolo, petitioner said he could not remember who took it away.41 However, at a later hearing, petitioner stated that it was he who picked up the bolo and turned it over to Edep, his superior officer.42 But how could he not remember who took the bolo if he was the one who did so? Once again, petitioner was prevaricating.

Third, petitioner said that he merely intended to fire a warning shot when he saw Ganancial. This claim is belied by the fact that the victim sustained three gunshot wounds on the chest and abdomen. It is apparent that petitioner intended to kill the victim and not merely to warn him.

Indeed, even assuming that the victim was charging at Sgt. Edep, it would have been sufficient for petitioner to warn Sgt. Edep of the danger. Not that petitioner was not expected to pause for a moment while his colleague was in danger.43 However, the rules of engagement do not, on the other hand, require that he should immediately draw or fire his weapon if the person accosted did not heed his call.44 But rather than confront the victim as to his intended purpose, petitioner immediately shot the former without further thought.

Petitioner claims the victim was armed with a bolo. The circumstances, however, indicate otherwise. Petitioner was questioned by the prosecutor on the existence of the bolo during the hearing held on October 7, 1986. The bolo was presented in court only on October 17, 1986. At the hearing on that date, petitioner and Lydio Lota both claimed that they could identify the bolo by the markings placed on it by Sgt. Edep.45 But Sgt. Edep made no mention of having recovered a bolo, much less of marking it. In fact, Edep at one point testified that he did not see any weapon near the victim. It is doubtful, therefore, that the bolo offered in evidence by the defense was the one actually recovered from the scene of the crime.46 It is more likely that the idea to offer the bolo in question was a mere afterthought by the defense brought about by the fiscal's own reminder that the presentation of the weapon was crucial to petitioner's plea of defense of stranger.47

Nor can petitioner's claim that the killing was done in fulfillment of a lawful duty be sustained, as the Court of Appeals ruled. For this justifying circumstance to be appreciated, the following must be established: (1) that the offender acted in the lawful exercise of a right or a duty; and (b) that the injury or offense committed be the necessary consequence of the due performance of such right or office.48

In this case, the mission of petitioner and his colleagues was to effect the arrest of Restituto Bergante. As Edep himself explained, the standard procedure in making an arrest was, first, to identify themselves as police officers and to show the warrant to the arrestee and to inform him of the charge against him, and, second, to take the arrestee under custody.49 But, it was not shown here that the killing of Ganancial was in furtherance of such duty. No evidence was presented by the defense to prove that Ganancial attempted to prevent petitioner and his fellow officers from arresting Restituto Bergante. There was in fact no clear evidence as to how Freddie Ganancial was shot. Indeed, as already stated, any attempt by the victim to arrest the wanted person was pointless as Restituto Bergante was not in his house. As regards the second requisite, there can be no question that the killing of Freddie Ganancial was not a necessary consequence of the arrest to be made on Restituto Bergante.

Reliance by the Court of Appeals on the case of People v. Oanis50 is misplaced. In Oanis, the accused, who were police officers, shot and killed the victim under the erroneous notion that the latter was the person they were charged to arrest. The Court held that the first requisite - that the offenders acted in performance of a lawful duty - was present because the offenders, though overzealous in the performance of their duty, thought that they were in fact killing the man they have been ordered to take into custody dead or alive. In this case, petitioner did not present evidence that he mistook Freddie Ganancial for Restituto Bergante and, therefore, killed him (Ganancial) perhaps because he placed the lives of the arresting officers in danger.

Third. On the other hand, we think the Court of Appeals erred in appreciating the qualifying circumstance of treachery against petitioner. There is treachery 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 take.51 For treachery to exist, two conditions must be present: (1) there must be employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2) the means of execution were deliberately or consciously adopted.52 As has been discussed, the testimonies of prosecution witnesses Noe and Noel Bergante cannot be given credence. As we already stated, even the trial court acquitted accused Decosto and Edep, both of whom were implicated as the assailants. Without evidence of the manner the aggression was made or how the act resulting in the death of the victim began and developed, it is not possible to appreciate the qualifying circumstance of treachery.53

Nor can evident premeditation be appreciated in this case. Evident premeditation requires proof of the following elements: (1) the time when the accused decided to commit the crime; (2) an overt act manifestly indicating that he has clung to his determination; and (3) a sufficient lapse of time between decision and execution to allow the accused to reflect upon the consequences of his act.54 None of these elements has been shown in this case.

For the foregoing reasons, petitioner is liable only for homicide, for which the penalty under Art. 249 of the Revised Penal Code isreclusion temporal. As neither mitigating nor aggravating circumstances attended the commission of the crime, the penalty must be imposed in its medium period, pursuant to Art. 64(1) of the Revised Penal Code. Applying the Indeterminate Sentence Law, the minimum imposable penalty on accused-appellant falls within the range of the penalty next lower in degree, i.e., prision mayor, or from six (6) years and one (1) day to twelve (12) years. Accordingly, the penalty to be imposed on accused-appellant must be fixed within the range ofprision mayor, or from six (6) years and one (1) day to twelve years (12) years, as minimum, to reclusion temporal medium, or from fourteen (14) years, eight (8) months, and one (1) day to seventeen (17) years and four (4) months, as maximum.

Petitioner should also be made to pay the heirs of the victim, Freddie Ganancial, the amount of P50,000.00 as moral damages,55 in addition to the amount of P50,000.00 awarded by the trial court and the Court of Appeals as indemnity.56 The purpose of making such an award of moral damages is not to enrich the heirs of the victim but to compensate them for injuries to their feelings.57

WHEREFORE, the decision of the Court of Appeals, dated November 29, 2000, is AFFIRMED with the MODIFICATION that petitioner is found guilty of the crime of homicide and is sentenced to suffer the penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal, as maximum, and to pay the heirs of the victim, Freddie Ganancial, P50,000.00 as civil indemnity and P50,000.00 as moral damages.

SO ORDERED.

G.R. NO. 150647, SEPTEMBER 29, 2004ROWENO POMOY VS. PEOPLE OF THE PHILIPPINES

1.) NATURE OF THE CASE: JUSTIFYING “ACCIDENT”This case was reviewed by the Supreme Court, wherein the Supreme Court reversed the decision of the RTC of Iloilo and the Court of appeals finding the petitioner guilty of the crime of homicide.2.) FACTSThat on January 4, 1990, the petitioner armed with .45 service pistol arrested the victim in connection with a robbery which took place in the municipality in December 1989. The victim was detained in the jail, along with another suspect in the robbery case. Later that day, the petitioner went near the door of the jail and directed the victim to come out for tactical interrogation at the investigation room. At that time, the petitioner had a gun, a .45 caliber pistol, tucked in a holster which was hanging at the side of his belt. The gun was fully embedded in the holster, with only the handle of the gun protruding from the holster. When petitioner and the victim reached the main building and when near the investigation room, 2 gunshots were heard. When the source of the shot were verified, petitioner was still holding a .45 caliber pistol, facing the victim, who was lying in the pool of blood about 2 feet away. When the Commanding Officer of the Headquarter arrived, he disarmed the petitioner and directed that the victim be brought to the hospital. Dr. Palma who happened to be at the crime scene examined the victim and advised them that it was unnecessary to bring the victim to the hospital because he was dead.Upon the request of the wife of the victim, the victim was examined and the medico-legal officer testified that 2 wounds found on the victim’s body were gunshot wounds.Both RTC and CA discredited the petitioner’s claimed that the death of the victim resulted from accident and self-defense. Thus, the petitioner was held liable for the crime of homicide.3.) ISSUE/ISSUES1.) Whether the shooting of the victim was the result of an accident.2.) Whether the petitioner was able to prove self-defense.4.) RULING/HOLDINGS1st issue: Accident is an exempting circumstance under Article 12 of the Revised Penal Code: "Article 12. Circumstances which exempt from criminal liability. – The following are exempt from criminal liability:4. Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intent of causing it.’" Exemption from criminal liability proceeds from a finding that the harm to the victim was not due to the fault or negligence of the accused, but to circumstances that could not have been foreseen or controlled. Thus, in determining whether an "accident" attended the incident, courts must take into account the dual standards of lack of intent to kill and absence of fault or negligence. This determination inevitably brings to the fore the main question in the present case: was petitioner in control of the .45 caliber pistol at the very moment the shots were fired? The elements of accident are as follows: 1) the accused was at the time performing a lawful act with due care; 2) the resulting injury was caused by mere accident; and 3) on the part of the accused, there was no fault or no intent to cause the injury. From the facts, it is clear that all these elements were present. At the time of the incident, petitioner was a member -- specifically, one of the investigators -- of the Philippine National Police (PNP) stationed at the Iloilo Provincial Mobile Force Company. Thus, it was in the lawful performance of his duties as investigating officer that, under the instructions of his superior, he fetched the victim from the latter’s cell for a routine interrogation. Again, it was in the lawful performance of his duty as a law enforcer that petitioner tried to defend his possession of the weapon when the victim suddenly tried to remove it from his holster. As an enforcer of the

law, petitioner was duty-bound to prevent the snatching of his service weapon by anyone, especially by a detained person in his custody. Such weapon was likely to be used to facilitate escape and to kill or maim persons in the vicinity, including petitioner himself. Petitioner cannot be faulted for negligence. He exercised all the necessary precautions to prevent his service weapon from causing accidental harm to others. As he so assiduously maintained, he had kept his service gun locked when he left his house; he kept it inside its holster at all times, especially within the premises of his working area. At no instance during his testimony did the accused admit to any intent to cause injury to the deceased, much less kill him. Furthermore, Nicostrato Estepar, the guard in charge of the detention of the victim, did not testify to any behavior on the part of petitioner that would indicate the intent to harm the victim while being fetched from the detention cell. The participation of petitioner, if any, in the victim’s death was limited only to acts committed in the course of the lawful performance of his duties as an enforcer of the law. The removal of the gun from its holster, the release of the safety lock, and the firing of the two successive shots -- all of which led to the death of the victim -- were sufficiently demonstrated to have been consequences of circumstances beyond the control of petitioner. At the very least, these factual circumstances create serious doubt on the latter’s culpability. 2nd issue:Petitioner advanced self-defense as an alternative. Granting arguendo that he intentionally shot the victim, he claims he did so to protect his life and limb from real and immediate danger.Self-defense is inconsistent with the exempting circumstance of accident, in which there is no intent to kill. On the other hand, self-defense necessarily contemplates a premeditated intent to kill in order to defend oneself from imminent danger. Apparently, the fatal shots in the instant case did not occur out of any conscious or premeditated effort to overpower, maim or kill the victim for the purpose of self-defense against any aggression; rather, they appeared to be the spontaneous and accidental result of both parties’ attempts to possess the firearm. Since the death of the victim was the result of an accidental firing of the service gun of petitioner -- an exempting circumstance as defined in Article 12 of the Revised Penal Code -- a further discussion of whether the assailed acts of the latter constituted lawful self-defense is unnecessary. WHEREFORE, the Petition is GRANTED and the assailed Decision REVERSED. Petitioner is ACQUITTED. 

padilla vs cafacts: the petitioners, roy padilla, incumbent municipal mayor and the rest being policemen except one, took advantage of their public positions by means of threat, force and violence when they prevented Antonio vergara and his family to open their stall in the Public Market. they then brutally demolished and destroyed said stall and furnitures therein, and carrying away the goods,wares and merchandise. the CFI rendered a decision finding them guilty beyond reasonable doubt of the crime of grave coercion; respondent herein appealed.CA modified the judgement acquitting petitioners beyond reasonable doubt, but are ordered to pay jointly and severally to complainants actual damages.

issue:WON the CA committed a reversible error in requiring petitioners to pay civil liability after acquitting them from criminal charge.

held: the petitioners were acquitted on the ground that their guilt has not been proven beyond reasonable doubt. such acquittal will not bar a civil case for damages arising from the demolition of the petitioner's satll in the market. the acquittal refers to the element of grave coercion and not on the fact that the stalls were not demolished. the extinction of criminal penal action carries with it the extinction of civil action only if there is a declaration that the facts from which the civil liability may arise did not exist.