[G.R. No. 172832. April 7, 2009.

ROSARIO T. DE VERA, petitioner, vs. GEREN A. DE VERA, respondent.

DECISION

NACHURA, J p:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court seeking to reverse the February 28, 2006 Decision 1 of the Court of Appeals
(CA) and its May 24, 2006 Resolution 2 in CA-G.R. SP No. 91916. cSaATC

The facts, as found by the CA, are as follows:

Petitioner Rosario T. de Vera accused her spouse Geren A. de Vera (Geren) and
Josephine F. Juliano (Josephine) of Bigamy. They were thus indicted in an
Information, the accusatory portion of which reads:

That on or about the 31st day of July, 2003, in the Municipality of San Juan, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the said
accused Geren A. de Vera being previously united in lawful marriage with Rosario
Carvajal Tobias-de Vera, and without said marriage having been legally dissolved,
did, then and there willfully, unlawfully and feloniously contract a second marriage
with accused Josephine Juliano y Francisco, who likewise has previous knowledge
that accused Geren A. de Vera's previous marriage with Rosario T. de Vera is still
valid and subsisting, said second marriage having all the essential requisites for its
validity. ETHSAI

CONTRARY TO LAW. 3

Upon arraignment, Geren pleaded "Guilty". However, in a Motion 4 dated April 8,

2005, he prayed that he be allowed to withdraw his plea in the meantime in order to
prove the mitigating circumstance of voluntary surrender. The motion was opposed
5 by petitioner on the ground that not all the elements of the mitigating
circumstance of "voluntary surrender" were present. She added that "voluntary
surrender" was raised only as an afterthought, as Geren had earlier invoked a
"voluntary plea of guilty" without raising the former. Finally, she posited that since
the case was ready for promulgation, Geren's motion should no longer be
entertained.

In an Order 6 dated June 6, 2005, the Regional Trial Court (RTC) granted Geren's
motion and appreciated the mitigating circumstance of voluntary surrender in the
determination of the penalty to be imposed. Thus, on even date, the RTC
promulgated Geren's Sentence, 7 the dispositive portion of which reads:

WHEREFORE, the court finds accused Geren A. de Vera guilty beyond reasonable
doubt of the crime of bigamy as charged in the Information and there being two (2)
mitigating circumstances (Plea of guilty and voluntary surrender), and no
aggravating circumstance and applying the provision of Article 349 in relation to
paragraph 5, Article 64, Revised Penal Code, as amended, and the Indeterminate
Sentence Law, accused is hereby sentenced to suffer the penalty of 6 MONTHS of
ARRESTO MAYOR, as minimum to FOUR (4) YEARS, TWO (2) MONTHS of PRISION
CORRECCIONAL, as maximum. HcSaAD

No pronouncement as to cost.

SO ORDERED.

Unsatisfied, petitioner moved for the partial reconsideration 8 of the decision but
the same was denied in an Order 9 dated August 25, 2005.

In the meantime, on June 8, 2005, Geren applied for probation 10 which was
favorably acted upon by the RTC by referring it to the Probation Officer of San Juan,
Metro Manila. 11

For failure to obtain favorable action from the RTC, petitioner instituted a special
civil action for certiorari before the CA. However, she failed to persuade the CA
which rendered the assailed decision affirming the RTC Order and Sentence, and the
assailed resolution denying her motion for reconsideration. In sustaining the
appreciation of the mitigating circumstance of voluntary surrender, the CA
maintained that all its requisites were present. DaHcAS

Hence, the instant petition based on the following grounds:

THE HONORABLE COURT OF APPEALS HAS DECIDED QUESTIONS OF SUBSTANCE IN A

WAY NOT PROBABLY IN ACCORD WITH LAW AND WITH APPLICABLE DECISIONS OF
THIS HONORABLE COURT WHEN:

A. IT ERRONEOUSLY FAILED TO APPLY THE RULING IN PEOPLE VS. CAGAS

REGARDING THE REQUISITES OF VOLUNTARY SURRENDER TO BE APPRECIATED IN
THE INSTANT CASE.

B. IT INCORRECTLY AFFIRMED THE ORDER AND SENTENCE BOTH DATED JUNE 6,

2005 AND THE ORDER DATED AUGUST 25, 2005 RENDERED BY THE PUBLIC
RESPONDENT IN APPRECIATING THE MITIGATING CIRCUMSTANCES OF PLEA OF
GUILTY AND VOLUNTARY SURRENDER IN FAVOR OF THE PRIVATE RESPONDENT IN
CRIMINAL CASE NO. 130139, AN ACT THAT WARRANTS THIS HONORABLE COURT TO
EXERCISE ITS APPELLATE JUDICIAL DISCRETION. 12

The petition lacks merit.

While we are called upon to resolve the sole issue of whether the CA correctly
denied the issuance of the writ of certiorari, we cannot ignore the procedural issues
which the trial and appellate courts failed to appreciate.
In filing her motion for reconsideration before the RTC and her petition for certiorari
before the CA, petitioner sought the modification of the court's judgment of
conviction against Geren, because of the allegedly mistaken application of the
mitigating circumstance of "voluntary surrender". The eventual relief prayed for is
the increase in the penalty imposed on Geren. Is this action of petitioner
procedurally tenable? aHSTID

Section 7, Rule 120 of the Revised Rules of Criminal Procedure provides:

Sec. 7. Modification of judgment. A judgment of conviction may, upon

motion of the accused, be modified or set aside before it becomes final or before
appeal is perfected. Except where the death penalty is imposed, a judgment
becomes final after the lapse of the period for perfecting an appeal, or when the
sentence has been partially or totally satisfied or served, or when the accused has
waived in writing his right to appeal, or has applied for probation.

Simply stated, in judgments of conviction, errors in the decision cannot be corrected

unless the accused consents thereto; or he, himself, moves for reconsideration of,
or appeals from, the decision. 13

Records show that after the promulgation of the judgment convicting Geren of
bigamy, it was petitioner (as private complainant) who moved for the
reconsideration 14 of the RTC decision. This was timely opposed by Geren, invoking
his right against double jeopardy. 15 Although the trial court correctly denied the
motion for lack of merit, we would like to add that the same should have been
likewise denied pursuant to the above-quoted provision of the Rules. AIDcTE

As explained in People v. Viernes, 16 the rule on the modification of judgments of

conviction had undergone significant changes before and after the 1964 and 1985
amendments to the Rules. Prior to the 1964 Rules of Court, we held in various cases
17 that the prosecution (or private complainant) cannot move to increase the
penalty imposed in a promulgated judgment, for to do so would place the accused
in double jeopardy. The 1964 amendment, however, allowed the prosecutor to move
for the modification or the setting aside of the judgment before it became final or an
appeal was perfected. In 1985, the Rules was amended to include the phrase "upon
motion of the accused", effectively resurrecting our earlier ruling prohibiting the
prosecution from seeking a modification of a judgment of conviction. Significantly,
the present Rules retained the phrase "upon motion of the accused". Obviously, the
requisite consent of the accused is intended to protect him from having to defend
himself anew from more serious offenses or penalties which the prosecution or the
court may have overlooked. 18

Equally important is this Court's pronouncement in People v. Court of Appeals 19 on

the propriety of a special civil action for certiorari assailing a judgment of
conviction. In that case, the trial court convicted the accused of homicide. The
accused thereafter appealed his conviction to the CA which affirmed the judgment
of the trial court but increased the award of civil indemnity. The Office of the
Solicitor General (OSG), on behalf of the prosecution, then filed before this Court a
petition for certiorari under Rule 65, alleging grave abuse of discretion. The OSG
prayed that the appellate court's judgment be modified by convicting the accused
of homicide without appreciating in his favor any mitigating circumstance. In effect,
the OSG wanted a higher penalty to be imposed. The Court declared that the
petition constituted a violation of the accused's right against double jeopardy;
hence, dismissible. Certainly, we are not inclined to rule differently.

Indeed, a petition for certiorari may be resorted to on jurisdictional grounds. In

People v. Veneracion, 20 we entertained the petition for certiorari initiated by the
prosecution to resolve the issue of whether the RTC gravely abused its discretion in
imposing a lower penalty. In that case, the trial judge, fully aware of the appropriate
provisions of the law, refused to impose the penalty of death because of his strong
personal aversion to the death penalty law, and imposed instead reclusion
perpetua. In resolving the case in favor of the prosecution, the Court concluded that
the RTC gravely abused its discretion, and remanded the case to the trial court for
the imposition of the proper penalty. By so doing, we allowed a modification of the
judgment not on motion of the accused but through a petition initiated by the
prosecution. But it was an exceptional case. Here and now, we reiterate the rule
that review is allowed only in apparently void judgments where there is a patent
showing of grave abuse of discretion amounting to lack or excess of jurisdiction. The
aggrieved parties, in such cases, must clearly show that the public respondent
acted without jurisdiction or with grave abuse of discretion amounting to lack of
jurisdiction. 21 IAcTaC

Grave abuse of discretion defies exact definition, but it generally refers to

"capricious or whimsical exercise of judgment as is equivalent to lack of
jurisdiction." The abuse of discretion must be patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or
to act at all in contemplation of law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion and hostility. 22 Obviously, no grave
abuse of discretion may be attributed to a court simply because of its alleged
misappreciation of the mitigating circumstance of voluntary surrender.
Consequently, the trial court's action cannot come within the ambit of the writ's
limiting requirement of excess or lack of jurisdiction. Thus, the trial court's action
becomes an improper object of, and therefore non-reviewable by, certiorari. 23

Even if we dwell on the merit of the case, which had already been done by the
appellate court, we find no cogent reason to grant the instant petition.

For voluntary surrender to be appreciated, the following requisites should be

present: 1) the offender has not been actually arrested; 2) the offender surrendered
himself to a person in authority or the latter's agent; and 3) the surrender was
voluntary. 24 The essence of voluntary surrender is spontaneity and the intent of
the accused to give himself up and submit himself to the authorities either because
he acknowledges his guilt or he wishes to save the authorities the trouble and
expense that may be incurred for his search and capture. 25 Without these
elements, and where the clear reasons for the supposed surrender are the
inevitability of arrest and the need to ensure his safety, the surrender is not
spontaneous and, therefore, cannot be characterized as "voluntary surrender" to
serve as a mitigating circumstance. 26

Petitioner is correct in saying that in People v. Cagas 27 and in People v. Taraya, 28

the Court added a fourth requisite before "voluntary surrender" may be appreciated
in favor of the accused that there is no pending warrant of arrest or information
filed. Since the warrant of arrest had been issued, petitioner insists that arrest was
imminent and the "surrender" could not be considered "voluntary". AIDSTE

In Cagas, after the stabbing incident, the accused ran to the upper portion of the
cemetery where a police officer caught up with him. Thereupon, he voluntarily gave
himself up. The Court held that if the accused did then and there surrender, it was
because he was left with no choice. Thus, the "surrender" was not spontaneous.

In Taraya, when the accused learned that the police authorities were looking for him
(because of a warrant for his arrest), he immediately went to the police station
where he confessed that he killed the victim. Notwithstanding such surrender and
confession to the police, the Court refused to appreciate the mitigating
circumstance in his favor.

Lastly, in People v. Barcino, Jr., 29 the accused surrendered to the authorities after
more than one year from the incident in order to disclaim responsibility for the
killing of the victim. The Court refused to mitigate the accused's liability because
there was no acknowledgment of the commission of the crime or the intention to
save the government the trouble and expense in his search and capture; and there
was a pending warrant for his arrest.

Certainly, we cannot apply the same conclusion to the instant case. Cagas is not
applicable because the accused therein did not surrender but was caught by the
police. In Taraya, the warrant of arrest had, in fact, been issued and was forwarded
to the proper authorities for implementation. In Barcino, it was a year after the
commission of the crime when the accused went to the police station, not for
purposes of acknowledging his culpability, nor to save the government the expense
and trouble of looking for and catching him, but actually to deny his culpability.

In this case, it appears that the Information was filed with the RTC on February 24,
2005. On March 1, 2005, the court issued an Order finding probable cause for the
accused to stand trial for the crime of bigamy and for the issuance of a warrant of
arrest. In the afternoon of the same day, Geren surrendered to the court and filed a
motion for reduction of bail. After the accused posted bail, there was no more need
for the court to issue the warrant of arrest. 30 TaISDA
The foregoing circumstances clearly show the voluntariness of the surrender. As
distinguished from the earlier cases, upon learning that the court had finally
determined the presence of probable cause and even before the issuance and
implementation of the warrant of arrest, Geren already gave himself up,
acknowledging his culpability. This was bolstered by his eventual plea of guilt during
the arraignment. Thus, the trial court was correct in appreciating the mitigating
circumstance of "voluntary surrender".

We would like to point out that the mere filing of an information and/or the issuance
of a warrant of arrest will not automatically make the surrender "involuntary". In
People v. Oco, 31 the Court appreciated the mitigating circumstance because
immediately upon learning that a warrant for his arrest was issued, and without the
same having been served on him, the accused surrendered to the police. Thus, it is
clear that notwithstanding the pendency of a warrant for his arrest, the accused
may still be entitled to the mitigating circumstance in case he surrenders,
depending on the actual facts surrounding the very act of giving himself up.

WHEREFORE, premises considered, the petition is DENIED. The Court of Appeals

February 28, 2006 Decision and its May 24, 2006 Resolution in CA-G.R. SP No.
91916 are AFFIRMED.

SO ORDERED.

[G.R. No. 135551. October 27, 2000.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AMPIE TARAYA y CANTUBA @

"Boyet," ARLY CANTUBA y DAIGO @ "Beget" and JONAR ESTRADA y CANTUBA,
accused-appellants.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYNOPSIS

Ampie Taraya, Arly Cantuba and Jonar Estrada are relatives. They were convicted by
the Regional Trial Court, Branch 33, of Siniloan, Laguna of the crime of murder and
were sentenced to suffer the penalty of reclusion perpetua. The trial court relied
heavily on the testimonies of Mariano Adillo and David Angeles, Jr. Mariano Adillo
testified that he is the co-worker of the victim Salvador Reyes. At about 10:00 p.m.
of 24 September 1995, he, Salvador and three other companions were in a beer
house in Famy, Laguna. Salvador drank his beer outside the pub and was in a
conversation with a girl. Later, Salvador was approached and surrounded by
accused Ampie Taraya, Arly Cantuba and Jonar Estrada. Mariano hollered at them
and the three accused immediately left. Half an hour later, Mariano went outside,
but Salvador was nowhere in sight. The following day, he learned of Salvador's
death. To corroborate said testimony, David Angeles, Jr. testified that the three
accused were his neighbors. Late evening of 24 September 1995, he went out of the
house to relieve himself as he was suffering from back pain. On the street, he saw
Ampie brandishing a one-foot long bolo. Behind Ampie were Arly and Jonar. Ampie
approached a man who seemed to be urinating, then held up the head of the man
and slashed his neck, while Arly and Jonar stood nearby ready to assist. Thereafter
Ampie, Arly and Jonar ran to their respective homes. Later, he learned that the
victim was Salvador Reyes. Contrarily, Ampie claimed that he acted in self-defense
while Arty and Jonar interposed alibi as their defense. Defense witness Domingo
Decena testified that while he was walking on the road, he saw Salvador Reyes who
was also walking and holding an iron pipe about one and a half feet long. When he
came face to face with Ampie, he tried to hit Ampie with the pipe, but Ampie was
able to avoid. Ampie retaliated by hacking Salvador with a bolo. Salvador ran away
and he was followed behind by Ampie. Frightened with what he saw, Domingo
rushed back to his house.

The Court ruled that the prosecution's evidence failed to convince it of its
sufficiency to prove with moral certainty that there was conspiracy among accused-
appellants to kill Salvador so as to hold Arly and Jonar equally liable as Ampie for
the death of Salvador. The testimony of David Angeles, Jr. is not persuasive as to
their participation in the crime. Arly and Jonar were both unarmed and they
remained behind Ampie. The only overt act attributed to them was that they
appeared ready to assist. There was no certainty as to their action to show a
deliberate and concerted cooperation on their part as to likewise render them liable
for the killing of Salvador. Then, too, David could not be an absolutely impartial
witness. He had an axe to grind against Jonar who, only a few days earlier, or
specifically on 13 September 1995, had a fight with Danilo Angeles, a brother of
David. The latter was present during that incident. It follows then that no credible
third party witnessed how Ampie attacked and slashed Salvador's neck with a bolo.
There being no positive and direct evidence to show that the attack was sudden and
unexpected, treachery as a circumstance to qualify the killing to murder cannot be
appreciated against Ampie. Ampie then could only be liable for homicide. Ampie
Taraya was found guilty of homicide only and sentenced to an indeterminate prison
term. Arly Cantuba and Jonar Estrada were acquitted on ground of reasonable
doubt.

SYLLABUS

1. CRIMINAL LAW; CONSPIRACY; CAN BE INFERRED FROM THE ACTS OF ALL

ACCUSED WHICH DENOTE A JOINT PURPOSE AND DESIGN. A conspiracy exists
when two or more persons come to an agreement concerning the commission of a
crime and decide to commit it. It does not require that such agreement occurred for
an appreciable period prior to the commission of the crime; it is sufficient that at the
time of the execution thereof, all accused had the same purpose and were united
therein. Conspiracy may be deduced from the mode and manner in which the crime
was committed, or inferred from the acts of all accused which denote a joint
purpose and design, concerted action and community of interest. In establishing
conspiracy direct proof of a previous agreement is unnecessary. And, when it is
proven, the act of one is the act of all. DCTSEA

2. ID.; ID.; NOT ESTABLISHED IN CASE AT BAR. Our meticulous evaluation of

the prosecution's evidence fails to convince us of its sufficiency to prove with moral
certainty that there was conspiracy among accused-appellants to kill Salvador so as
to hold ARLY and JONAR equally liable as AMPIE for the death of Salvador. There is at
all no intimation that there was bad blood between Salvador and AMPIE or ARLY or
JONAR before the beerhouse incident. The accused-appellants may have come to
the beerhouse to enjoy together but not to took for Salvador. Neither is there
evidence that the girl with whom Salvador was conversing was AMPIE's girlfriend or
was being courted by him and he felt jealous when he saw Salvador conversing with
her. The testimony of David Angeles, Jr. is not persuasive as to their participation in
the crime. ARLY and JONAR were both unarmed and they remained behind AMPIE.
The only overt act attributed to them was that they appeared ready to assist. There
was no certainty as to their action to show a deliberate and concerted cooperation
on their part as to likewise render them liable for the killing of Salvador.

3. ID.; QUALIFYING CIRCUMSTANCES; TREACHERY; ELEMENTS. 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 make. Treachery as a qualifying circumstance
requires that the offender deliberately employs means of execution which deprives
the person attacked no opportunity to defend or retaliate. It must be proved by
clear and convincing evidence or as conclusively as the killing itself. The particulars
as to how the aggression was made, or how the act which resulted in the death of
the victim began and developed must be established.

4. ID.; ID.; ID.; NOT APPRECIATED DUE TO ABSENCE OF DIRECT EVIDENCE THAT
ATTACK ON VICTIM WAS SUDDEN AND UNEXPECTED. We even have doubts on the
testimony of David Angeles, Jr. If indeed Salvador was in the act of urinating when
AMPIE suddenly came up from behind him, held the head and slashed the neck of
Salvador, then there must have been no prior physical confrontation between the
two. Yet, the post-mortem report (Exh. "A") of Dr. Jamolin records that the latter
found the following injuries on the body of Salvador: 1. Abrasions, circular, 1 inch,
right temporal area. 2. Abrasions, circular, 1 inch, lateral portion, infra-ocular area,
right eye. These injuries prove that Salvador and AMPIE must have had a fight. The
incident at the beerhouse could be the proximate cause thereof. Then, too, David
could not be an absolutely impartial witness. He had an axe to grind against JONAR
who, only a few days earlier, or specifically on 13 September 1995, had a fight with
Danilo Angeles, a brother of David. The latter was present during that incident. It
follows then that no credible third party witnessed how AMPIE attacked and slashed
Salvador's neck with a bolo. There being no positive and direct evidence to show
that the attack was sudden and unexpected, treachery as a circumstance to qualify
the killing to murder cannot be appreciated against AMPIE.

5. ID., MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER; REQUISITES.

The following are the requisites of voluntary surrender: (1) the offender had not
been actually arrested; (2) the offender surrendered himself to a person in authority
or to the latter's agent; (3) the surrender was voluntary; and (4) there is no pending
warrant of arrest or information filed. For a surrender to be voluntary, it must be
spontaneous and must also show the intent of the accused to submit himself
unconditionally to the authorities, either because he acknowledges his guilt or he
wishes to save them the trouble and expense incidental to his search and capture.

6. ID.; ID.; ID.; ID.; NOT APPRECIATED WHERE AT THE TIME OF SURRENDER, HE
HAD A PENDING WARRANT OF ARREST. It cannot be denied that when AMPIE
learned that the police authorities were looking for him in connection with the death
of Salvador Reyes, he immediately went to the police station on 9 October 1995. It
was there where he confessed to killing Salvador in self-defense. This is bolstered by
the testimony of the investigating officer SPO2 Emmanuel Martinez, who even
entered in the police blotter that AMPIE voluntarily surrendered to the police.
However, the said surrender does not constitute one which would classify as a
mitigating circumstance. It must be emphasized that at the time of his surrender,
AMPIE already had a pending warrant of arrest which was issued on 4 October 1995,
or five days before his surrender. His arrest by that time was imminent. We cannot
then appreciate in favor of AMPIE the mitigating circumstance of voluntary
surrender. HCTDIS

7. ID.; HOMICIDE; IMPOSABLE PENALTY. The penalty for homicide under Article
249 of the Revised Penal Code is reclusion temporal. AMPIE, however, is entitled to
the benefits of the Indeterminate Sentence Law. He can then be sentenced to an
indeterminate penalty whose minimum shall be within the range of the penalty next
lower in degree, which is prision mayor, and whose maximum shall be that
prescribed by law taking into account the modifying circumstances. Since no
modifying circumstances has been proven in this case, the maximum of the penalty
shall be the medium period of reclusion temporal. Thus, AMPIE can be sentenced to
an indeterminate imprisonment penalty ranging from ten (10) years of prision
mayor medium as minimum to seventeen (17) years and four (4) months of
reclusion temporal medium as maximum.

DECISION

DAVIDE, JR., C.J p:

Accused-appellants appeal from the decision 1 in Criminal Case No. S- 1898 of the
Regional Trial Court, Branch 33 of Siniloan, Laguna, which found them guilty beyond
reasonable doubt of the crime of murder and sentenced each of them to suffer the
penalty of reclusion perpetua and pay P50,000 to the heirs of the victim, as well as
the costs. SaITHC

Accused-appellants are relatives. Ampie Taraya (hereafter AMPIE) and Jonar Estrada
(hereafter JONAR) are cousins and the nephew of Arly Cantuba (hereafter ARLY).
ARLY is the brother of the respective mothers of AMPIE and JONAR.

The accusatory portion of the information 2 which charged them with murder reads
as follows:

That on or about 11:20 o'clock [sic] in the evening of September 24, 1995 at Sitio
Bagong Silang, Barangay Batuhan, Municipality of Famy, Province of Laguna and
within the jurisdiction of this Honorable Court, the above-named accused while
conveniently armed with deadly weapon (itakan), with intent to kill, with evident
premeditation and treachery and with abuse of superior strength conspiring,
confederating and mutually helping one another did then and there wilfully,
unlawfully and feloniously attack, assault, hack and slash the throat of one Salvador
Reyes by [sic] the said weapon thereby inflicting upon him hacking/slashing wound
anterior neck, proximal end and directing backward and superiorly at the base of
the mandible cutting half the circumference of the neck cutting the trachea,
esophagus, neck vessels including jugular veins and carotid arteries on both sides
sparing the cervical vertebrae and cord which directly caused his death to the
damage and prejudice of the surviving heirs of the victim.

That the qualifying and aggravating circumstances of treachery, abuse of superior

strength and evident premeditation attended the commission of the crime.

CONTRARY TO LAW.

Accused-appellants pleaded not guilty upon arraignment. Trial on the merits ensued.

The prosecution presented Mariano Adillo, David Angeles, Jr., Gregorio Reyes and Dr.
Gloria Jamolin. The evidence for the prosecution established the following facts:

Mariano Adillo a co-worker of the victim Salvador Reyes in a sash factory, testified
that he had known Salvador for two months. At about 10:00 p.m. of 24 September
1995, he, Salvador and three other companions were in a beer house in Famy,
Laguna. Salvador drank his beer outside the pub and was in a conversation with a
girl. Both were within the view of Mariano. Later, Salvador was approached and
surrounded by three men, one of them faced him while the two others positioned
themselves behind him. Mariano hollered at the men, who immediately left.

Half an hour later Mariano went out, but Salvador was nowhere in sight. At about
11:00 p.m., Mariano and a boy searched for him up to a billiard hall which was
about 200 meters away. They returned to the beer house and he instructed the boy
to hail a tricycle for his ride home. When no tricycle could be found he and a
companion walked home. 3 The following day he learned of Salvador's death. 4

When asked in open court if he could identify the three persons who approached
Salvador, Mariano pointed to AMPIE, JONAR and ARLY.

David Angeles, Jr. testified that accused-appellants were his neighbors in Famy,
Laguna. ARLY, with whom AMPIE lived, was an adjacent neighbor, while JONAR lived
some thirty feet away from his house. He had known JONAR for some ten years,
ARLY for about five years and AMPIE for three years. He never had any
misunderstanding with anyone of them. 5

According to David, in the late evening of 24 September 1995, he was at home and
could hardly sleep as he was suffering from a backache. He went out of the house to
relieve himself. On the street he saw AMPIE brandishing a one-foot long bolo. Behind
AMPIE were ARLY and JONAR. They were about five meters away from where David
stood. AMPIE approached a man who seemed to be urinating. AMPIE then held up
the head of the man and slashed his neck once while his companions ARLY and
JONAR stood nearby ready to assist AMPIE. The victim was able to free himself and
ran towards David until he dropped a few meters from the house. Immediately
AMPIE, ARLY and JONAR ran to their respective homes. David later learned that the
victim was Salvador Reyes. 6

David was certain of whom he saw because the place was illuminated. He went
back to the house and ten minutes later he saw people lurking outside with
flashlights. He went out when he heard somebody ask why there were bloodstains
around. He kept quiet as he was reluctant to divulge what he saw, and he feared the
consequences should he be involved. A few days passed and since his conscience
still bothered him, he decided to reveal what he had witnessed. He gave a sworn
statement 7 to the police.

According to Gregorio Reyes, his son Salvador Reyes died on 24 September 1995. At
the time of his death Salvador was thirty-nine years old, separated from his wife and
was earning an average of P200 a day. Salvador had confided to him that he had an
altercation with ARLY. He mentioned this fact in his sworn statement. 8 The funeral
expenses he incurred amounted to P18,000; however, he could not produce any
receipt because some of the expenses were paid by his friends. 9

Dr. Gloria Jamolin performed an autopsy on Salvador Reyes. She noted the presence
of abrasions in the right temporal area and below the eyes and a hack wound at the
neck which could have been caused by a sharp instrument such as a bolo. Judging
from the nature and the location of the wound, the assailant was in front of the
victim during the attack. The cause of death was cardio-respiratory arrest secondary
to shock and hemorrhage due to the hack wound penetrating the esophagus. 10
She prepared a post mortem report. 11
The defense had another version of the incident. The witnesses it presented were
Armando Bilara, Domingo Decena, SPO2 Emmanuel Martinez, ARLY, JONAR and
AMPIE.

Armando Bilara, a barangay tanod, claimed that he has known all accused-
appellants for about three years. On 13 September 1995 he was on his way home
for lunch when a commotion took place near his house. JONAR had a fistfight with
Danilo Angeles, brother of prosecution witness David Angeles, Jr. Danilo was atop of
and giving blows to JONAR. Armando intervened and pacified both of them. He had
no idea what caused the scuffle. David was among the spectators of the fight but he
did not interfere. 12

Domingo Decena was at home and watching a television show on the night of 24
September 1995 and until 2:00 a.m. of the following day. Thereafter, he left the
house to go to his brother's place to sleep. While he was walking along the street,
he saw another person who was also walking and holding an iron pipe about one
and a half feet long. He later learned that the man was Salvador Reyes. He also saw
AMPIE. When AMPIE came face to face with Salvador, the latter tried to hit AMPIE
once with the pipe, but AMPIE was able to duck and avoid being hit by the pipe.
AMPIE retaliated by hacking Salvador with a bolo. Salvador ran away, followed
behind by AMPIE. Frightened with what he saw, Domingo rushed back to his house.
Twenty-five minutes later he saw a commotion outside and learned that Salvador
was found dead twenty meters away from AMPIE's house. 13

On cross-examination Domingo admitted that he did not tell anyone in the house of
what he had just witnessed. Neither did he inform the police because of fear. He
also denied seeing David Angeles, Jr. that night. He was unable to reveal what he
saw for one and a half years because he was busy with work and he had just
learned that AMPIE was languishing in jail. It was AMPIE's wife who requested him to
testify. 14

SPO2 Emmanuel Martinez was among the policemen who arrived at the scene of the
crime. The body of Salvador Reyes was found some ten yards from the house of
David Angeles, Jr. Accused-appellants were implicated by an eyewitness to the
death of Salvador. ARLY and JONAR were immediately incarcerated while AMPIE,
accompanied by his sister, surrendered at the police station on 9 October 1997. He
recorded in the police blotter the date and time of AMPIE's surrender. AMPIE
admitted that he killed Salvador, but alleged that he did so in self-defense. Martinez
discontinued the investigation and advised AMPIE to avail of the services of a lawyer
from the Public Attorney's Office. 15

ARLY raised the defense of alibi. According to him, on 24 September 1995, he was at
his place of work, a coprasan. He stayed there until 8:00 p.m. and he immediately
proceeded home. He slept an hour later. At around 1:00 a.m. of the following day he
was awakened by his wife, informing him that there were several people milling
outside. He went out and he saw the dead body of Salvador Reyes, whom he knew
by face. He returned home to sleep. He had not gone out of his house between the
hours he slept and woke up. In the morning of 25 September 1995, the police came
to question him. He was allowed to go home after the investigation. 16

ARLY surmised that David Angeles, Jr. linked him to the crime because of the
squabble he had with him on 13 September 1995, when his nephew JONAR was
mauled by David and Bobby Angeles. He explained that Armando Bilara arrived late
during the encounter, for which reason Armando failed to see that David was
actually injured by JONAR.

ARLY further declared that he did not go to the beer house at any time on 24
September 1995. 17

JONAR also offered the defense of alibi. He had known Salvador Reyes for about
fifteen years and during that period he never had any misunderstanding with
Salvador. He was at home in the evening of 24 September 1995. He slept at 8:00
p.m. and woke up at 5:00 a.m. the following day. He learned that Salvador was
killed that morning and the police came to arrest him two weeks after. He had no
involvement in Salvador's death, since he was asleep the whole night. He was not in
the beer house as alleged by Mariano Adillo. He asserted that David Angeles, Jr.
implicated him in the murder of Salvador because David is the brother of Danilo
Angeles and he had a misunderstanding with Danilo's wife. The incident happened
on 13 September 1995, when Danilo punched him and David joined in the fracas. 18

AMPIE claimed self-defense. According to him in the early evening of 24 September

1995 he was in a beer house. Then he proceeded to the nearby house of his friend
Bebet, and stayed at the balcony. He was just a meter away from the beer house
when Lorna, a waitress from the beer house, approached him and talked with him.
During their conversation he noticed a man and his companions enter the beer
house. Later the man approached him and Bebet. The man asked him what he was
doing, and he replied that he was just listening to the music. The man also asked
him if he had a relationship with Lorna and he answered "not yet." Not satisfied with
his response, the man punched him and Lorna parted them away. The man left after
warning him to wait as they would settle the matter. Lorna explained that the man
was a former boyfriend. After the threat he went home to JONAR's house to sleep.
19

However, AMPIE awoke at midnight and went outside the house to answer the call
of nature. He armed himself with a bolo as he was suspicious and frightful that
night. He then saw a man opposite the house of his neighbor Domeng, and the man,
who was Salvador Reyes, attempted to hit him twice with an iron pipe. He was able
to avoid the first blow but the second blow hit him. In retaliation AMPIE swung his
bolo, dropped it and immediately went back to the house. The following morning he
heard of the death of Salvador. He did not tell anyone of what transpired that night.
Instead, he reported to work at the coprasan in Sta. Maria, Laguna and stayed there
for three days. On the third day, he was fetched by his employer to buy duck eggs
in Pateros. He was able to return briefly to Famy, Laguna, on 2 October but that
same afternoon he left for Pasig City. 20

On 8 October AMPIE asked from his employer permission to leave for Pagsanjan,
Laguna. In Pagsanjan he was informed by his sister that the police was looking for
him in connection with the death of Salvador Reyes. Thus, the following day he and
his sister went to the police station, where he identified himself. He learned that his
uncle ARLY and cousin JONAR were both in jail as they too were implicated in the
death of Salvador. AMPIE denied the participation of ARLY and JONAR, and insisted
that it was only he and Salvador who had an altercation. AMPIE was thereafter
detained at the police station. He requested that he be allowed to contact his
employer and consult with the lawyer provided by the latter. 21

On cross-examination AMPIE claimed that he swung his bolo to parry the second
attempt of Salvador to hit him with a pipe. He was unaware that he actually hit
Salvador which resulted in the death of the latter. 22

The trial court limited itself to the resolution of the following issues: (1) whether
AMPIE acted in self-defense, (2) whether ARLY and JONAR participated in the killing
of Salvador Reyes, and (3) whether AMPIE voluntarily surrendered to the police.
DCHIAS

In its decision 23 of 6 February 1998, the trial court convicted accused-appellants

and decreed, thus:

WHEREFORE, premises considered, judgment is hereby rendered finding all the

accused AMPIE TARAYA y CANTUBA, ARLY CANTUBA y DAIGO and JONAR ESTRADA y
CANTUBA, guilty beyond reasonable doubt for the crime of "MURDER," qualified by
treachery, absent of any other mitigating or aggravating circumstances, hereby
sentences them to Reclusion Perpetua. To pay the heirs of the victim for his death
the amount of P50,000.00 and to pay the cost.

Accused Ampie Taraya y Cantuba, Arly Cantuba y Daigo and Jonar Estrada y
Cantuba being detention prisoners, it is hereby ordered that they be credited with
the full [length] of their preventive imprisonment if they agree voluntarily in writing
to abide by the same disciplinary rules imposed upon convicted prisoner, otherwise,
they shall be credited with 4/5 of the period they had undergone preventive
imprisonment, in accordance with Art. 29 of the Revised Penal Code, as amended.
EDISaA

The trial court gave credence to the witnesses of the prosecution, particularly to its
eyewitness who positively identified accused-appellants as the perpetrators of the
crime. It rejected ARLY and JONAR's defense of alibi because of its weakness
considering their positive identification and that their respective residences were
only some meters away from where the dead body of Salvador Reyes was found.

In repudiating AMPIE's claim of self-defense, the trial court noted the weak evidence
proffered by him. He failed to show any physical injury he could have sustained
when Salvador allegedly hit him with the iron pipe. The pipe was not presented, and
none was found at the scene of the crime; and even assuming there was indeed a
pipe, AMPIE failed to establish the reasonable necessity of the means employed to
prevent the alleged unlawful aggression on the part of Salvador Reyes. It ruled that
all the elements of self-defense were not present. Hence, the killing of Salvador was
not at all justified. EIDTAa

The trial court ruled that the killing of Salvador Reyes was attended with treachery.
The attack was sudden and accused-appellants deliberately employed means to
ensure the success of their plan without risk to themselves. Besides, their victim
was without means to defend himself. Although it found the presence of the
aggravating circumstance of abuse of superior strength, it declared that the same
was absorbed in the qualifying circumstance of treachery. It found no factual basis
for the qualifying circumstance of evident premeditation. cEATSI

The trial court ruled that AMPIE could not benefit from the mitigating circumstance
of voluntary surrender. Salvador Reyes was killed on 24 September 1995. The
complaint for murder was filed on the third day of the following month, October, and
a warrant of arrest was issued the day after. He admitted the killing under claim of
self-defense, it cannot be believed that he was unaware of the filing of the case. The
trial court concluded that the purpose of AMPIE's visit to the police station on 9
October 1995, accompanied by his sister, was not to surrender but to verify the
charge filed against him.

Finally, the trial court considered AMPIE's flight as an indication of guilt. He fled after
the incident under the pretext that his work required him to be away for several
days.

Undaunted, accused-appellants AMPIE, ARLY and JONAR appealed to us from the

judgment of conviction. They anchor their appeal on the following alleged errors of
the trial court:

1. . . . IN FINDING THAT THERE WAS CONSPIRACY TO KILL AMONG THE THREE

ACCUSED;

2. . . . IN FINDING THAT CO-ACCUSED ARLY AND JONAR PARTICIPATED IN THE

KILLING, OF THE VICTIM; AND

3. . . . IN FINDING THAT THE CRIME OF MURDER WAS COMMITTED BY ACCUSED

AMPIE WHEN THE CRIME WAS ONLY HOMICIDE.
On the first and second assigned errors, they assert that ARLY and JONAR were not
co-conspirators in the killing of Salvador Reyes. They were implicated by David
Angeles, Jr. who claimed to have seen them behind AMPIE, allegedly ready to render
assistance to AMPIE when the latter hacked the neck of Salvador. They emphasize,
however, that there is no evidence that they actually helped AMPIE, and no overt
act of killing could be attributed to them. Thus, they deserve an acquittal. AHSaTI

Anent the third assigned error, accused-appellants assail the finding of treachery
and contend that AMPIE could only be guilty of homicide and not murder. AMPIE
hacked the victim only once and he immediately fled thereafter. He did not even
seek the help of ARLY and JONAR in killing the victim. He was the lone assailant. For
treachery to be appreciated, it must be proved by strong and convincing evidence.
The prosecution failed to do so.

Accused-appellants pray that ARLY and JONAR be acquitted of the crime charged
because of reasonable doubt, and that AMPIE be found guilty of homicide only, not
murder.

The Office of the Solicitor General refutes the arguments raised in the Appellants'
Brief. On the first and second grounds, it counters that conspiracy can be inferred
from the conduct of ARLY and JONAR. David Angeles, Jr. unequivocally testified that
both ARLY and JONAR were behind AMPIE, who was armed with a bolo and with it
approached Salvador Reyes, held his head up and hacked his neck. At that time
ARLY and JONAR's actions were described as "nakaalalay" and "anyong tutulong" 24
Said actions establish a common design to attack Salvador. In a conspiracy to
commit murder it is not necessary that all the conspirators actually kill the victim.
Besides, their action after the killing, that is scampering away instead of rendering
assistance to the victim, affirmed their criminal intent. ASTcaE

Anent the last argument, the Office of the Solicitor General maintains that the trial
court properly appreciated the qualifying circumstance of treachery. The means
used directly and specifically insured the death of Salvador without risk to accused-
appellants. Salvador was alone and unarmed, unsuspecting of what was to befall
him. He had no opportunity to defend himself.

In their Reply Brief, accused-appellants insist on the exculpation of ARLY and JONAR,
arguing that their mere presence in the scene of the crime cannot constitute
conspiracy. They assert that David Angeles, Jr. had a wrong impression of what
actually transpired. Moreover, there can be no treachery since AMPIE was the lone
perpetrator. IAEcCa

We affirm the conviction of accused-appellant AMPIE but only for homicide; and
because of reasonable doubt as to their guilt, we ACQUIT accused-appellants ARLY
and JONAR.
The first and second issues shall be jointly discussed since they question the trial
court's finding of conspiracy, which resulted in the complicity of ARLY and JONAR.

The trial court relied heavily on the testimonies of Mariano Adillo and David Angeles,
Jr. Mariano Adillo testified that Salvador, prior to his death, was accosted by
accused-appellants outside the beerhouse where he was engaged in a conversation
with a woman when accused-appellants arrived. One of the accused-appellants
directly laced Salvador, while the two others positioned themselves just behind the
first. Sensing danger, Mariano immediately bellowed at accused-appellants who
immediately left together. David Angeles, Jr., declared that he saw accused-
appellants together at the time Salvador was assaulted. ARLY and JONAR appeared
to him to be ready to give assistance to AMPIE. Pertinent portion of his testimony
reads as follows:

xxx xxx xxx

Q What else did you notice when if any when according to you saw B Taraya?

A I saw B Taraya approaching a man who when I looked on that man as if

urinating.

Q Where were Jonar Estrada and Arly Cantuba at the time according to you B
Taraya slashed the neck of the victim?

A They were near each other. In fact, Arly Cantuba and Jonar Estrada were
ready to help B Taraya.

xxx xxx xxx

Q How about these three accused, what did they do if they did anything after
the victim Salvador Reyes was able to free himself and able to run away from them?

A B Taraya and Arly Cantuba slowly entered their house and Jonar Estrada run
[sic] towards his house.

xxx xxx xxx

Q And you stated that the two (2) other accused in this case Arly Cantuba and
Jonar Estrada were also in the scene of the crime?

A Yes, sir. "Nandoon po sila nakaalalay."

Q How far were the two other accused from the victim Salvador Reyes?

A They were side by side, sir.

Q How far?

A Maybe this distance.

Interpreter:

Witness demonstrated by his two hands the distance of about 1 & 1/2 feet.

Q I would like to direct your attention to your Sworn Statement which was
already marked in evidence as Exh. "B" particularly question 10 and your answer in
said question and I will quote: "[A]no naman ang palagay mo na naging
partisipasyon nitong si Arly Cantuba and Jonar Estrada? Answer: "Sa tingin ko po ay
pagtutulung-tulungan itong namatay na si Salvador Reyes dahil nakaalalay silang
dalawa kay Boyet Taraya." Do you remember having given those [sic] answer when
asked by the Police Officer during the investigation?

A Yes, sir.

xxx xxx xxx

Q Why did you say that these two (2) accused Arly Cantuba and Jonar Estrada
were "nakaalalay"?

A Because when Ampie Taraya slashed the neck of Salvador Reyes, the two (2)
Jonar Estrada and Arly Cantuba, were beside them and appears [sic] to be about
[sic] to help, "anyong tutulong."

Q Why did you say that Mr. Witness? What did you conclude in the actuation of
Arly Cantuba and Jonar Estrada that you conclude that they were about to help?

A Because while Ampie was on the act of slashing the neck of Salvador Reyes,
Jonar Estrada and Arly Cantuba were approaching them ("papalapit sila").

Q So you are basing your conclusion that the other two (2) accused Arly
Cantuba and Jonar Estrada were about to help because you said while Boyet Taraya
was approaching the victim Salvador Reyes, the two other accused, I am referring to
Arly Cantuba and Jonar Estrada, were also approaching, that is why you said that
they were "nakaalalay"?

A Yes, sir.

Q And aside from that Mr. [W]itness, you claimed that Arly Cantuba and Jonar
Estrada were also approaching, there was no other actuation or assistance made by
these two (2) aside from the fact that they were also there and approaching the
victim while Boyet Taraya whom you said slashed the neck of Salvador Reyes?

A That is only what I saw, that they were on the act of helping, "anyong
tutulong."

xxx xxx xxx

 Their reaction was just about to help Boyet Taraya, they did not do anything
against Salvador Reyes. 25

A conspiracy exists when two or more persons come to an agreement concerning

the commission of a crime and decide to commit it. 26 It does not require that such
agreement occurred for an appreciable period prior to the commission of the crime;
it is sufficient that at the time of the execution thereof, all accused had the same
purpose and were united therein. Conspiracy may be deduced from the mode and
manner in which the crime was committed, or inferred from the acts of all accused
which denote a joint purpose and design, concerted action and community of
interest. 27 In establishing conspiracy direct proof of a previous agreement is
unnecessary. And, when it is proven, the act of one is the act of all. 28

Our meticulous evaluation of the prosecution's evidence fails to convince us of its

sufficiency to prove with moral certainty that there was conspiracy among accused-
appellants to kill Salvador so as to hold ARLY and JONAR equally liable as AMPIE for
the death of Salvador. TaCEHA

There is at all no intimation that there was bad blood between Salvador and AMPIE
or ARLY or JONAR before the beerhouse incident. The accused-appellants may have
come to the beerhouse to enjoy together but not to look for Salvador. Neither is
there evidence that the girl with whom Salvador was conversing was AMPIE's
girlfriend or was being courted by him and he felt jealous when he saw Salvador
conversing with her.

The testimony of David Angeles, Jr. is not persuasive as to their participation in the
crime. ARLY and JONAR were both unarmed and they remained behind AMPIE. The
only overt act attributed to them was that they appeared ready to assist. There was
no certainty as to their action to show a deliberate and concerted cooperation on
their part as to likewise render them liable for the killing of Salvador.

We even have doubts on the testimony of David Angeles, Jr. If indeed Salvador was
in the act of urinating, when AMPIE suddenly came up from behind him, held the
head and slashed the neck of Salvador, then there must have been no prior physical
confrontation between the two. Yet, the post-mortem report (Exh. "A") of Dr. Jamolin
records that the latter found the following injuries on the body of Salvador:

1. Abrasions, circular, 1 inch, right temporal area.

2. Abrasions, circular, 1 inch, lateral portion, infra-ocular area, right eye. 29

These injuries prove that Salvador and AMPIE must have had a fight. The incident at
the beerhouse could be the proximate cause thereof.

Then, too, David could not be an absolutely impartial witness. He had an axe to
grind against JONAR who, only a few days earlier, or specifically on 13 September
1995, had a fight with Danilo Angeles, a brother of David. The latter was present
during that incident.

It follows then that no credible third party witnessed how AMPIE attacked and
slashed Salvador's neck with a bolo. There being no positive and direct evidence to
show that the attack was sudden and unexpected, treachery as a circumstance to
qualify the killing to murder cannot be appreciated against AMPIE.

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 make. 30 Treachery as a qualifying circumstance
requires that the offender deliberately employs means of execution which deprives
the person attacked no opportunity to defend or retaliate. 31 It must be proved by
clear and convincing evidence or as conclusively as the killing itself. 32 The
particulars as to how the aggression was made, or how the act which resulted in the
death of the victim began and developed must be established. 33

AMPIE then could only be liable for homicide. SDTaHc

An issue to be resolved, too, is whether AMPIE is entitled to the mitigating

circumstance of voluntary surrender. The following are the requisites of voluntary
surrender: (1) the offender had not been actually arrested; (2) the offender
surrendered himself to a person in authority or to the latter's agent; (3) the
surrender was voluntary; and (4) there is no pending warrant of arrest or
information filed. 34 For a surrender to be voluntary, it must be spontaneous and
must also show the intent of the accused to submit himself unconditionally to the
authorities, either because he acknowledges his guilt or he wishes to save them the
trouble and expense incidental to his search and capture. 35

It cannot be denied that when AMPIE learned that the police authorities were
looking for him in connection with the death of Salvador Reyes, he immediately
went to the police station on 9 October 1995. It was there where he confessed to
killing Salvador in self-defense. This is bolstered by the testimony of the
investigating officer SPO2 Emmanuel Martinez, who even entered in the police
blotter that AMPIE voluntarily surrendered to the police However, the said surrender
does not constitute one which would classify as a mitigating circumstance. It must
be emphasized that at the time of his surrender, AMPIE already had a pending
warrant of arrest 36 which was issued on 4 October 1995, or five days before his
surrender. His arrest by that time was imminent. We cannot then appreciate in favor
of AMPIE the mitigating circumstance of voluntary surrender.

The penalty for homicide under Article 249 of the Revised Penal Code is reclusion
temporal. AMPIE, however, is entitled to the benefits of the Indeterminate Sentence
Law. He can then be sentenced to an indeterminate penalty whose minimum shall
be within the range of the penalty next lower in degree, which is prision mayor and
whose maximum shall be that prescribed by law taking into account the modifying
circumstances. Since no modifying circumstances has been proven in this case, the
maximum of the penalty shall be the medium period of reclusion temporal. Thus,
AMPIE can be sentenced to an indeterminate imprisonment penalty ranging from
ten (10) years of prision mayor medium as minimum to seventeen (17) years and
four (4) months of reclusion temporal medium as maximum.

WHEREFORE, judgment is hereby rendered (I) AFFIRMING, insofar as accused-

appellant Ampie Taraya is concerned, the decision of 6 February 1998 of the
Regional Trial Court of Siniloan, Laguna, Branch 33, in Criminal Case No. 4324, with
the modification that he is found guilty beyond reasonable doubt as principal of the
crime of homicide only and is hereby sentenced to suffer an indeterminate penalty
of imprisonment ranging from Ten (10) years and One (1) day of prision mayor
medium as minimum to Seventeen (17) years and Four (4) months of reclusion
temporal medium as maximum, with all the accessory penalties thereof, and to
indemnify the heirs of Salvador Reyes in the sum of P50,000 as civil indemnity for
his death; (2) ACQUITTING on ground of reasonable doubt accused-appellants ARLY
CANTUBA and JONAR ESTRADA and ordering their immediate release from
confinement, unless their further detention is justified for any other lawful cause.
The Director of the Bureau of Corrections shall submit a report of their release
within five (5) days from receipt of notice of this decision. TADaCH

Costs de oficio.

SO ORDERED.

[G.R. No. 146247. September 17, 2002.]

PEOPLE OF THE PHILIPPINES, plaintiff, vs. EDGAR DAWATON, accused.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYNOPSIS

Accused Edgar Dawaton was convicted of murder by the Regional Trial Court of
Baler, Quezon, and was sentenced to suffer the supreme penalty of death. On
automatic review, accused argued that the trial court erred in imposing the death
penalty despite the attendance of mitigating circumstance of voluntary surrender
and the alternative circumstance of intoxication in his favor. ITSaHC

The Supreme Court affirmed Dawaton's conviction for murder, but modified the
penalty imposed by the trial court. The trial court's conclusion that accused
murdered Leonides Lavares was sufficiently proved by the testimonies of
prosecution witnesses Domingo Reyes and Esmeraldo Cortez who both witnessed
the fatal stabbing. The testimony was not refuted by the accused himself who
admitted that he stabbed the victim three (3) times before his mind went blank and
could no longer recall what he did after that. Accused cannot also avail of the
mitigating circumstance of voluntary surrender as he himself admitted that he was
arrested at his uncle's residence. The Court, however, held that the trial court erred
in not appreciating the alternative circumstance of intoxication in favor of the
accused. The allegation that the accused was drunk when he committed the crime
was corroborated by the prosecution witnesses, and there being no indication that
the accused was a habitual drunkard or that his alcoholic intake was intended to
fortify his resolve to commit the crime, the circumstance of intoxication should be
credited in his favor. The Court modified the decision of the trial court by imposing
the penalty of reclusion perpetua.

SYLLABUS

1. CRIMINAL LAW; WAS QUALIFYING CIRCUMSTANCES; TREACHERY; PRESENT

WHERE VICTIM ATTACKED WHILE IN DEEP SLUMBER DUE TO EXCESSIVE AMOUNT OF
ALCOHOL IMBIBED. Treachery clearly attended the killing. The accused attacked
the victim while the latter was in deep slumber owing to the excessive amount of
alcohol he imbibed. We are not persuaded by the version of the accused that the
victim threatened to harm him with a grenade and that it was only to prevent this
from happening that he was forced to stab Leonides. We defer instead to the
judgment of the trial court which gave more credence to the version of the
prosecution witnesses inasmuch as it was in a better position to decide on the
question of credibility, having heard the witnesses themselves and observed their
deportment during trial. According to the prosecution witnesses, the victim had no
chance to defend himself as he was dead drunk and fast asleep. He had no inkling
at all of what was going to happen to him since there was no prior argument or
untoward incident between him and the accused. From all indications they were on
friendly terms; as in fact they were even kumpadres. No one knew nor expected
that when the accused momentarily excused himself, it was for the purpose of
looking for a knife, and without any warning, stabbing the victim who was sleeping.
There is treachery when the attack is upon an unconscious victim who could not
have put up any defense whatsoever, or a person who was dead drunk and sleeping
on a bench and had no chance to defend himself. Clearly, the attack was not only
sudden but also deliberately adopted by the accused to ensure its execution without
risk to himself. ASEcHI

2. ID.; MITIGATING CIRCUMSTANCES; OFFER TO ENTER PLEA OF GUILTY TO

LESSER OFFENSE CANNOT BE CONSIDERED AS ATTENUATING CIRCUMSTANCE; TO
BE CONSIDERED VOLUNTARY, PLEA MUST BE TO THE CRIME CHARGED. The
accused is not entitled to the mitigating circumstance of plea of guilty. While he
offered to plead guilty to the lesser offense of homicide, he was charged with
murder for which he had already entered a plea of not guilty. We have ruled that an
offer to enter a plea of guilty to a lesser offense cannot be considered as an
attenuating circumstance under the provisions of Art. 13 of The Revised Penal Code
because to be voluntary the plea of guilty must be to the offense charged.
Furthermore, Sec. 2, Rule 116, of the Revised Rules of Criminal Procedure requires
the consent of the offended party and the prosecutor before an accused may be
allowed to plead guilty to a lesser offense necessarily included in the offense
charged. The prosecution rejected the offer of the accused.

3. ID.; ID.; VOLUNTARY SURRENDER; MUST BE SPONTANEOUS AND

UNCONDITIONAL. Nor can the accused avail of the mitigating circumstance of
voluntary surrender as he himself admitted that he was arrested at his uncle's
residence. The following elements must be present for voluntary surrender to be
appreciated: (a) the offender has not been actually arrested; (b) the offender
surrendered himself to a person in authority, and, (c) the surrender must be
voluntary. Resorting to sophistry, the accused argues that he was not arrested but
"fetched" as he voluntarily went with the policemen when they came for him. This
attempt at semantics is futile and absurd. That he did not try to escape or resist
arrest after he was taken into custody by the authorities did not amount to
voluntary surrender. A surrender to be voluntary must be spontaneous, showing the
intent of the accused to submit himself unconditionally to the authorities, either
because he acknowledges his guilt or because he wishes to save them the trouble
and expense necessarily included in his search and capture. It is also settled that
voluntary surrender cannot be appreciated where the evidence adduced shows that
it was the authorities who came looking for the accused. Moreover, the evidence
submitted by the prosecution belies the claim of the accused that he intended to
submit himself to the authorities. The joint affidavit of the arresting officers, the
veracity of which was admitted by the parties and evidenced by a 20 October 1999
Order of the trial court, revealed that they chanced upon the accused trying to
escape from the rear of the cockpit building when they came looking for him.
TaCIDS

4. ID.; ID.; PASSION OR OBFUSCATION; NO FACTUAL BASIS. There is no factual

basis to credit the accused with the mitigating circumstance of outraged feeling
analogous or similar to passion and obfuscation. Other than his self-serving
allegations, there was no evidence that the victim threatened him with a grenade.
Domingo Reyes and Esmeraldo Cortez testified that there was no prior altercation or
disagreement between Edgar and Leonides during the drinking spree, and they did
not know of any reason for Edgar's hostility and violence. On the contrary,
Esmeraldo Cortez even recalled seeing the two (2) in a playful banter (lambingan)
during the course of their drinking indicating that the attack on the accused was
completely unexpected.

5. ID.; ALTERNATIVE CIRCUMSTANCES; INTOXICATION; APPLICABLE IN CASE AT

BAR; NO INDICATION THAT ACCUSED WAS A HABITUAL DRUNKARD OR THAT HIS
ALCOHOL INTAKE WAS INTENDED TO FORTIFY HIS RESOLVE TO COMMIT CRIME.
The trial court erred in not appreciating the alternative circumstance of intoxication
in favor of the accused. Under Art. 15 of The Revised Penal Code, intoxication of the
offender shall be considered as a mitigating circumstance when the offender
commits a felony in a state of intoxication, if the same is not habitual or subsequent
to the plan to commit said felony. Otherwise, when habitual or intentional, it shall be
considered as an aggravating circumstance. The allegation that the accused was
drunk when he committed the crime was corroborated by the prosecution
witnesses. The accused and his drinking companions had consumed four (4) bottles
of gin at the house of Esmeraldo Cortez, each one drinking at least a bottle. It was
also attested that while the four (4) shared another bottle of gin at the house of
Amado Dawaton, it was the accused who drank most of its contents. In addition,
Esmeraldo testified that when Edgar and Leonides arrived at his house that noon,
they were already intoxicated. There being no indication that the accused was a
habitual drunkard or that his alcoholic intake was intended to fortify his resolve to
commit the crime, the circumstance of intoxication should be credited in his favor.
Consequently, we find that the trial court erroneously imposed the penalty of death.
The accused was charged with murder for which the law provides a penalty of
reclusion perpetua to death. Under Art. 63, par. 3, of The Revised Penal Code, in all
cases in which the law prescribes a penalty composed of two (2) indivisible
penalties, such as in this case, when the commission of the act is attended by a
mitigating circumstance and there is no aggravating circumstance, the lesser
penalty shall be applied. Since no aggravating circumstance attended the killing but
there existed the mitigating circumstance of intoxication, the accused should be
sentenced only to the lesser penalty of reclusion perpetua. SDHacT

DECISION

BELLOSILLO, J p:

EDGAR DAWATON was found by the trial court guilty of murder qualified by
treachery and sentenced to death, ordered to indemnify the heirs of the victim
P50,000.00 plus the accessory penalties provided by law, without subsidiary
imprisonment in case of insolvency, and to pay the costs of suit. 1

An Information 2 for murder qualified by treachery and evident premeditation was

filed against Edgar Dawaton on 11 March 1999. When first arraigned he pleaded not
guilty, 3 but during the pre-trial on 7 May 1999, he offered to plead guilty to the
lesser offense of homicide but was rejected by the prosecution, hence, the case
proceeded to trial. IcDESA

The prosecution presented as witnesses the very persons who were with the
accused and the victim during the incident, namely, Domingo Reyes and Esmeraldo
Cortez. The prosecution also presented Generosa Tupaz, the mother of the victim, to
prove the civil liability of the accused.

The evidence for the prosecution: On 20 September 1998 Esmeraldo Cortez was
entertaining visitors in his house in Sitio Garden, Brgy. Paltic, Dingalan, Aurora. His
brother-in-law Edgar Dawaton and kumpadre Leonides Lavares dropped by at about
12:00 o'clock noon followed by Domingo Reyes shortly after. All three (3) guests of
Esmeraldo were residents of Sitio Garden. They started drinking soon after. At about
3:00 o'clock in the afternoon and after having consumed four (4) bottles of gin, they
went to the house of Amado Dawaton, Edgar's uncle, located about twenty (20)
meters away from Esmeraldo's house. They stayed at the balcony of the house and
continued drinking. Amado Dawaton was not in.

Already drunk, Leonides decided to sleep on a papag or wooden bench, lying down
on his right side facing Domingo and Edgar using his right hand for a pillow. Edgar,
Domingo and Esmeraldo continued drinking until they finished another bottle of gin.

At about 3:30 in the afternoon, twenty (20) minutes after Leonides had gone to
sleep, Edgar stood up and left for his house. When he returned he brought with him
a stainless knife with a blade 2 to 3 inches long. Without a word, he approached
Leonides who was sleeping and stabbed him near the base of his neck. 4 Awakened
and surprised, Leonides got up and blurted: "Bakit Pare, bakit?" 5 Instead of
answering, Edgar again stabbed Leonides on the upper part of his neck, spilling
blood on Leonides' arm.

Leonides attempted to flee but Edgar who was much bigger grabbed the collar of
his shirt and thus effectively prevented him from running away. Edgar then
repeatedly stabbed Leonides who, despite Edgar's firm hold on him, was still able to
move about twenty (20) meters away from the house of Amado Dawaton before he
fell to the ground at the back of Esmeraldo's house. But even then, Edgar still
continued to stab him. Edgar only stopped stabbing Leonides when the latter
already expired. Edgar then ran away towards the house of his uncle Carlito Baras
situated behind the cockpit.

Domingo and Esmeraldo were positioned a few meters away from where Leonides
was sleeping when he was initially assaulted by Edgar. They were shocked by what
happened but other than pleading for Edgar to stop they were unable to help
Leonides.

Domingo left for his house soon after the stabbing started as he did not want to get
involved. Nonetheless he felt pity for Leonides so he returned a few minutes later.

By then, Leonides was already dead and people had already gathered at the site.
The mayor who was in a nearby cement factory arrived and instructed them not to
go near the body. They pointed to the direction where Edgar fled. Edgar was later
arrested at the house of his uncle, Carlito Baras, at Sitio Aves, Brgy. Paltic, Dingalan.

Accused-appellant Edgar Dawaton was the sole witness for the defense. He did not
deny that he stabbed Leonides Lavares but insisted that he was provoked into
stabbing him. Edgar claimed that the night prior to the stabbing incident, or on 19
September 1998, his uncle Armando Ramirez went to his house to welcome his
return from Cavite where he worked as a carpenter. They started drinking gin at
about 7:00 o'clock in the evening and ended at 3:00 o'clock in the morning of the
following day. He slept and woke up at 6:00 o'clock in the morning of 20 September
1998.

Apparently, he did not have enough of the prior evening's drinking orgy. He went to
his uncle's house early that morning and after his uncle bought two (2) bottles of
gin they started drinking again. Domingo Reyes arrived at around 7:30 in the
morning and joined them. Esmeraldo Cortez joined them about 12:00 o'clock noon
and bought two (2) more bottles of gin. Later, the group with the exception of
Armando Ramirez transferred to the house of Esmeraldo upon the latter's invitation
and drank two (2) more bottles of gin.

In Edgar's version of the stabbing incident, a drunk and angry Leonides arrived at
about 2:30 in the afternoon and demanded that they he and Edgar return
candles (magbalikan [tayo] ng kandila). 6 Leonides was godfather of a son of Edgar.
Leonides also cursed and threatened to hang a grenade on Edgar (P - t - ng ina mo.
Hintayin mo ako. Kukuha ako ng granada at sasabitan kita!). 7

According to Edgar, he tried to calm down Leonides but the latter insisted on going
home purportedly to get a grenade. Alarmed because he knew Leonides had a
grenade, Edgar went home to look for a bladed weapon. He already had a knife with
him but he thought it was short. Not finding another weapon, he returned to
Esmeraldo's house.

When he returned, Leonides was still in Esmeraldo's house and had joined in the
drinking. He sat opposite Leonides who resumed his tirades against him.

Again Leonides started to leave for his house purportedly to get a grenade. Afraid
that Leonides would make good his threat, Edgar held on to him and stabbed him.
He did not know where and exactly how many times he struck Leonides but he
recalled doing it three (3) times before his mind went blank (nablangko). 8 Edgar
also claimed that he was in this mental condition when he left Leonides and ran to
the house of Carlito Baras. He did not know that he had already killed Leonides, only
that he stabbed him thrice. He regained his senses only when he reached his uncle
Carlito's house.

Edgar further said that he sought his uncle's help so he could surrender but he was
told to wait because his uncle was then taking a bath. It was while waiting for his
uncle when the policemen arrived to arrest him. He maintained that he voluntarily
went with them.

The medico-legal certificate dated 24 September 1998 issued by Dr. Ernesto C. del
Rosario 9 showed that the victim sustained a stab wound at the back and ten (10)
stab wounds in front. He also had slash wounds on his left hand and his tongue was
cut off. The immediate cause of death was determined to be "Hypovolemic Shock
due to hemorrhage, multiple stabbed (sic) wounds." 10
On 20 October 1999 the parties entered into several stipulations which were
embodied in an Order. 11 Specifically, they admitted the veracity of the
Sinumpaang Salaysay dated 21 September 1998 executed by SPO2 Ramil D.
Gamboa and PO3 Gerry M. Fabros, 12 the police officers who arrested the accused;
the genuineness and due execution of the medico-legal certificate issued by Dr.
Ernesto C. del Rosario; and, the authenticity of the certificate of death 13 also
issued by Dr. del Rosario. Thus, the presentation of the arresting officers and Dr. del
Rosario as witnesses was dispensed with.

On 20 November 1999 the trial court convicted Edgar Dawaton of murder qualified
by treachery and sentenced him to death.

We affirm the conviction of accused-appellant; we however modify the penalty

imposed on him.

The conclusion that accused-appellant murdered Leonides Lavares was sufficiently

proved by the testimonies of prosecution witnesses Domingo Reyes and Esmeraldo
Cortez who both witnessed the fatal stabbing. This was not refuted by the accused
himself who admitted that he stabbed the victim three (3) times before his mind
went blank and could no longer recall what he did after that.

Treachery clearly attended the killing. The accused attacked the victim while the
latter was in deep slumber owing to the excessive amount of alcohol he imbibed.
We are not persuaded by the version of the accused that the victim threatened to
harm him with a grenade and that it was only to prevent this from happening that
he was forced to stab Leonides. We defer instead to the judgment of the trial court
which gave more credence to the version of the prosecution witnesses inasmuch as
it was in a better position to decide on the question of credibility, having heard the
witnesses themselves and observed their deportment during trial.

According to the prosecution witnesses, the victim had no chance to defend himself
as he was dead drunk and fast asleep. He had no inkling at all of what was going to
happen to him since there was no prior argument or untoward incident between him
and the accused. From all indications they were on friendly terms; as in fact they
were even kumpadres. No one knew nor expected that when the accused
momentarily excused himself, it was for the purpose of looking for a knife, and
without any warning, stabbing the victim who was sleeping.

There is treachery when the attack is upon an unconscious victim who could not
have put up any defense whatsoever, 14 or a person who was dead drunk and
sleeping on a bench and had no chance to defend himself. 15 Clearly, the attack
was not only sudden but also deliberately adopted by the accused to ensure its
execution without risk to himself.

The accused argues that trial court erred in imposing the death penalty despite the
attendance of mitigating and alternative circumstances in his favor. 16 He avers
that he is entitled to the mitigating circumstance of plea of guilty. We disagree.
While the accused offered to plead guilty to the lesser offense of homicide, he was
charged with murder for which he had already entered a plea of not guilty. We have
ruled that an offer to enter a plea of guilty to a lesser offense cannot be considered
as an attenuating circumstance under the provisions of Art. 13 of The Revised Penal
Code because to be voluntary the plea of guilty must be to the offense charged. 17

Furthermore, Sec. 2, Rule 116, of the Revised Rules of Criminal Procedure requires
the consent of the offended party and the prosecutor before an accused may be
allowed to plead guilty to a lesser offense necessarily included in the offense
charged. We note that the prosecution rejected the offer of the accused.

Nor can the accused avail of the mitigating circumstance of voluntary surrender as
he himself admitted that he was arrested at his uncle's residence. 18 The following
elements must be present for voluntary surrender to be appreciated: (a) the
offender has not been actually arrested; (b) the offender surrendered himself to a
person in authority, and, (c) the surrender must be voluntary. 19

Resorting to sophistry, the accused argues that he was not arrested but "fetched" as
he voluntarily went with the policemen when they came for him. This attempt at
semantics is futile and absurd. That he did not try to escape or resist arrest after he
was taken into custody by the authorities did not amount to voluntary surrender. A
surrender to be voluntary must be spontaneous, showing the intent of the accused
to submit himself unconditionally to the authorities, either because he
acknowledges his guilt or because he wishes to save them the trouble and expense
necessarily included in his search and capture. 20 It is also settled that voluntary
surrender cannot be appreciated where the evidence adduced shows that it was the
authorities who came looking for the accused. 21

Moreover, the evidence submitted by the prosecution belies the claim of the
accused that he intended to submit himself to the authorities. The joint affidavit of
the arresting officers, the veracity of which was admitted by the parties and
evidenced by a 20 October 1999 Order of the trial court, revealed that they chanced
upon the accused trying to escape from the rear of the cockpit building when they
came looking for him. 22

Similarly, there is no factual basis to credit the accused with the mitigating
circumstance of outraged feeling analogous or similar 23 to passion and
obfuscation. 24 Other than his self-serving allegations, there was no evidence that
the victim threatened him with a grenade. Domingo Reyes and Esmeraldo Cortez
testified that there was no prior altercation or disagreement between Edgar and
Leonides during the drinking spree, and they did not know of any reason for Edgar's
hostility and violence. On the contrary, Esmeraldo Cortez even recalled seeing the
two (2) in a playful banter (lambingan) during the course of their drinking 25
indicating that the attack on the accused was completely unexpected.
The accused would want us to reconsider the penalty imposed on him on account of
his not being a recidivist. He contends that an appreciation of this factor calls for a
reduction of the penalty.

We are not persuaded. Recidivism is an aggravating circumstance the presence of

which increases the penalty. The converse however, that is, non-recidivism, is not a
mitigating circumstance which will necessarily reduce the penalty. Nonetheless, we
hold that the trial court erred in not appreciating the alternative circumstance of
intoxication in favor of the accused. Under Art. 15 of The Revised Penal Code,
intoxication of the offender shall be considered as a mitigating circumstance when
the offender commits a felony in a state of intoxication, if the same is not habitual
or subsequent to the plan to commit said felony. Otherwise, when habitual or
intentional, it shall be considered as an aggravating circumstance.

The allegation that the accused was drunk when he committed the crime was
corroborated by the prosecution witnesses. The accused and his drinking
companions had consumed four (4) bottles of gin at the house of Esmeraldo Cortez,
each one drinking at least a bottle. 26 It was also attested that while the four (4)
shared another bottle of gin at the house of Amado Dawaton, it was the accused
who drank most of its contents. 27 In addition, Esmeraldo testified that when Edgar
and Leonides arrived at his house that noon, they were already intoxicated. 28
There being no indication that the accused was a habitual drunkard or that his
alcoholic intake was intended to fortify his resolve to commit the crime, the
circumstance of intoxication should be credited in his favor.

Consequently, we find that the trial court erroneously imposed the penalty of death.
The accused was charged with murder for which the law provides a penalty of
reclusion perpetua to death. Under Art. 63, par. 3, of The Revised Penal Code, in all
cases in which the law prescribes a penalty composed of two (2) indivisible
penalties, such as in this case, when the commission of the act is attended by a
mitigating circumstance and there is no aggravating circumstance, the lesser
penalty shall be applied. Since no aggravating circumstance attended the killing but
there existed the mitigating circumstance of intoxication, the accused should be
sentenced only to the lesser penalty of reclusion perpetua.

The trial court correctly ordered the accused to pay civil indemnity in the amount of
P50,000.00 to the heirs of the victim without need of proof other than the fact that a
crime was committed resulting in the death of the victim and that the accused was
responsible therefor. 29 The heirs are also entitled to moral damages pursuant to
Art. 2206 of the New Civil Code on account of the mental anguish which they
suffered, and the amount of P50,000.00 is considered reasonable according to
existing jurisprudence. 30

WHEREFORE, the assailed Decision of the court a quo finding the accused EDGAR
DAWATON guilty of MURDER qualified by treachery is AFFIRMED with the
modification that the penalty is reduced from death to reclusion perpetua. The
accused is ordered to pay the heirs of Leonides Lavares P50,000.00 in civil
indemnity and P50,000.00 in moral damages. IHaCDE

SO ORDERED.

[G.R. No. 140937. February 28, 2001.]

EXUPERANCIO CANTA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

Public Attorney's Office for petitioner.

The Solicitor General for respondent.

SYNOPSIS

The Court of Appeals affirmed the decision of the Regional Trial Court, Branch 25,
Maasin, Southern Leyte, convicting Exuperancio Canta of violation of P.D. No. 533,
otherwise known as the Anti-Cattle Rustling Law of 1974. Petitioner was not justified
in taking the cow without the knowledge and permission of its owner. If he thought
it was the cow he had allegedly lost, he should have resorted to the court for the
settlement of his claim. What petitioner did in this case was to take the law in his
own hands. He surreptitiously took the cow from the custody of the caretaker,
Gardenio Agapay, which act belied his claim of good faith. However, the Court
modified the decision of the Court of Appeals in two respects. First, accused-
appellant should be given the benefit of the mitigating circumstance analogous to
voluntary surrender he voluntarily took the cow to the municipal hall of Padre
Burgos to place it unconditionally in the custody of the authorities and thus saved
them the trouble of having to recover the cow from him. Second, the trial court
correctly found petitioner guilty of violation of the law but it erred in imposing the
penalty of 10 years and 1 day of prision mayor, as minimum, to 12 years, 5 months
and 11 days of reclusion temporal medium, as maximum. The trial court apparently
considered P.D. No. 533 as a special law and applied 1 of the Indeterminate
Sentence Law. However, as held in People v. Macatanda, P. D. No. 533 is not a
special law. The penalty for its violation is in terms of the classification and duration
of penalties prescribed in the Revised Penal Code. Accordingly, petitioner should be
sentenced to an indeterminate penalty, the minimum of which is within the range of
the penalty next lower in degree, i.e., prision correccional maximum to prision
mayor medium, and the maximum of which is prision mayor in its maximum period
or a prision term of four (4) years and two (2) months of prision correccional
maximum, as minimum, to ten (10) years and one (1) day of prision mayor
maximum, as maximum. HSAcaE

SYLLABUS

1. CRIMINAL LAW; PRESIDENTIAL DECREE NO. 533 (ANTI-CATTLE RUSTLING LAW

OF 1974); CATTLE-RUSTLING ELEMENTS. The crime is committed if the following
elements concur: (1) a large cattle is taken; (2) it belongs to another; (3) the taking
is done without the consent of the owner; (4) the taking is done by any means,
methods or scheme; (5) the taking is with or without intent to gain; and (6) the
taking is accomplished with or without violence or intimidation against person or
force upon things. EaHATD

2. ID.; ID.; ID.; ESTABLISHED IN CASE AT BAR. These requisites are present in
this case. First, there is no question that the cow belongs to Narciso Gabriel.
Petitioner's only defense is that in taking the animal he acted in good faith and in
the honest belief that it was the cow which he had lost. Second, petitioner, without
the consent of the owner, took the cow from the custody of the caretaker, Gardenio
Agapay, despite the fact that he knew all along that the latter was holding the
animal for the owner, Narciso. Third, petitioner falsified his Certificate of Ownership
of Large Cattle by asking Telen to antedate it prior to the taking to make it appear
that he owned the cow in question. Fourth, petitioner adopted "means, methods, or
schemes" to deprive Narciso of his possession of his cow, thus manifesting his
intent to gain. Fifth, no violence or intimidation against persons or force upon things
attended the commission of the crime.

3. REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY; CERTIFICATE OF

OWNERSHIP OF LARGE CATTLE TO PROVE ACCUSED'S OWNERSHIP WAS FALSIFIED;
CASE AT BAR. Indeed, the evidence shows that the Certificate of Ownership of
Large Cattle which petitioner presented to prove his ownership was falsified.
Franklin Telen, the janitor in the municipal treasurer's office, admitted that he issued
the certificate to petitioner 10 days after Narciso's cow had been stolen. Although
Telen has previously executed a sworn statement claiming that he issued the
certificate on February 27, 1985, he later admitted that he antedated it at the
instance of petitioner Exuperancio Canta, his friend, who assured him that the cow
was his. ADHcTE

4. ID.; ID.; ID.; ID.; COWLICKS FOUND ON THE COW THAT TALLY WITH WHAT
WERE INDICATED ON THE CERTIFICATE OF OWNERSHIP OF LARGE CATTLE HAS NO
VALUE. Telen's testimony was corroborated by the certification of the municipal
treasurer of Padre Burgos that no registration in the name of petitioner was
recorded in the municipal records. Thus, petitioner's claim that the cowlicks found
on the cow tally with that indicated on the Certificate of Ownership of Large Cattle
has no value, as this same certificate was issued after the cow had been taken by
petitioner from Gardenio Agapay. Obviously, he had every opportunity to make sure
that the drawings on the certificate would tally with that existing on the cow in
question.

5. ID.; ID.; ID.; THE FACT THAT THE ACCUSED TOOK THE COW TO THE
BARANGAY CAPTAIN AND LATER TO THE POLICE AUTHORITIES DOES NOT PROVE HIS
GOOD FAITH. The fact that petitioner took the cow to the barangay captain and
later to the police authorities does not prove his good faith. He had already
committed the crime, and the barangay captain to whom he delivered the cow after
taking it from its owner is his own father. While the records show that he filed on
April 30, 1986 a criminal complaint against Narciso Gabriel, the complaint was
dismissed after it was shown that it was filed as a counter charge to a complaint
earlier filed on April 16, 1986 against him by Narciso Gabriel. CAcEaS

6. ID.; ID.; ID.; COWS FREQUENTLY ATTEMPT TO SUCKLE TO ALIENS COWS.

Petitioner says that he brought a mother cow to see if the cow in question would
suckle to the mother cow. But cows frequently attempt to suckle to alien cows.
Hence, the fact that the cow suckled to the mother cow brought by petitioner is not
conclusive proof that it was the offspring of the mother cow.

7. ID.; ID.; ID.; OBTAINING FRAUDULENT CERTIFICATE AND MAKING USE OF IT

NEGATES ACCUSED'S CLAIM OF GOOD FAITH AND HONEST MISTAKE. Petitioner's
Certificate of Ownership is not only "not in order." It is fraudulent, having been
antedated to make it appear it had been issued to him before he allegedly took the
cow in question. That he obtained such fraudulent certificate and made use of it
negates his claim of good faith and honest mistake. That he took the cow despite
the fact that he knew it was in the custody of its caretaker cannot save him from the
consequences of his act. ASHICc

8. CRIMINAL LAW; PRESIDENTIAL DECREE NO. 533 (ANTI-CATTLE RUSTLING LAW

OF 1974); SURREPTIOUSLY TAKING THE COW FROM THE CUSTODY OF THE
CARETAKER BELIES THE CLAIM OF GOOD FAITH. Petitioner was not justified in
taking the cow without the knowledge and permission of its owner. If he thought it
was the cow he had allegedly lost, he should have resorted to the court for the
settlement of his claim. Art. 433 of the Civil Code provides that "The true owner
must resort to judicial process for the recovery of the property." What petitioner did
in this case was to take the law in his own hands. He surreptitiously took the cow
from the custody of the caretaker, Gardenio Agapay, which act belies his claim of
good faith.

9. ID.; MITIGATING CIRCUMSTANCES; MITIGATING CIRCUMSTANCE ANALOGOUS

TO VOLUNTARY SURRENDER, APPRECIATED IN CASE AT BAR. First, accused-
appellant should be given the benefit of the mitigating circumstance analogous to
voluntary surrender. The circumstance of voluntary surrender has the following
elements: (1) the offender has not actually been arrested; (2) the offender
surrenders to a person in authority or to the latter's agent; and (3) the surrender is
voluntary. In the present case, petitioner Exuperancio Canta had not actually been
arrested. In fact, no complaint had yet been filed against him when he surrendered
the cow to the authorities. It has been repeatedly held that for surrender to be
voluntary, there must be an intent to submit oneself unconditionally to the
authorities, showing an intention to save the authorities the trouble and expense
that his search and capture would require. In petitioner's case, he voluntarily took
the cow to the municipal hall of Padre Burgos to place it unconditionally in the
custody of the authorities and thus saved them the trouble of having to recover the
cow from him. This circumstance can be considered analogous to voluntary
surrender and should be considered in favor of petitioner. aHADTC

10. ID.; PRESIDENTIAL DECREE NO. 533 (ANTI-CATTLE RUSTLING LAW OF 1974);
NOT A SPECIAL LAW; PENALTY FOR ITS VIOLATION IS PRESCRIBED IN THE REVISED
PENAL CODE. Second, the trial court correctly found petitioner guilty of violation
of 2(c) of P. D. No. 533, otherwise known as the Anti-Cattle Rustling Law of 1974.
However, it erred in imposing the penalty of 10 years and 1 day of prision mayor, as
minimum, to 12 years, 5 months and 11 days of reclusion temporal medium, as
maximum. The trial court apparently considered P. D. No. 533 as a special law and
applied 1 of the Indeterminate Sentence Law, which provides that "if the offense is
punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the minimum
term prescribed by the same." However, as held in People v. Macatanda, P. D. No.
533 is not a special law. The penalty for its violation is in terms of the classification
and duration of penalties prescribed in the Revised Penal Code, thus indicating that
the intent of the lawmaker was to amend the Revised Penal Code with respect to
the offense of theft of large cattle. In fact, 10 of the law provides: The provisions of
Articles 309 and 310 of Act No. 3815, otherwise known as the Revised Penal Code,
as amended, pertinent provisions of the Revised Administrative Code, as amended,
all laws, decrees, orders, instructions, rules and regulations which are inconsistent
with this Decree are hereby repealed or modified accordingly.

11. ID.; ID.; IMPOSABLE PENALTY. There being one mitigating circumstance and
no aggravating circumstance in the commission of the crime, the penalty to be
imposed in this case should be fixed in its minimum period. Applying the
Indeterminate Sentence Law, in relation to Art. 64 of the Revised Penal Code,
petitioner should be sentenced to an indeterminate penalty, the minimum of which
is within the range of the penalty next lower in degree, i.e., prision correccional
maximum to prision mayor medium, and the maximum of which is prision mayor in
its maximum period. ECcaDT

DECISION

MENDOZA, J p:

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

The information against petitioner alleged:

That on or about March 14, 1986, in the municipality of Malitbog, province of

Southern Leyte, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused with intent to gain, did then and there, willfully, unlawfully
and feloniously, take, steal and carry away one (1) black female cow belonging to
Narciso Gabriel valued at Three Thousand Pesos (P3,000.00) without the knowledge
and consent of the aforesaid owner, to his damage and prejudice in the amount
aforestated.

CONTRARY TO LAW. 3

The prosecution established the following facts:

Narciso Gabriel acquired from his half-sister Erlinda Monter a cow, subject of the
case, upon its birth on March 10, 1984. The cow remained under the care of Erlinda
Monter for sometime. Subsequently, Narciso gave the care and custody of the
animal, first, to Generoso Cabonce, from October 24, 1984 to March 17, 1985; then
to Maria Tura, from May 17, 1985 to March 2, 1986; and lastly, to Gardenio Agapay,
from March 3, 1986 until March 14, 1986 when it was lost. 4 It appears that at 5
o'clock in the afternoon of March 13, 1986, Agapay took the cow to graze in the
mountain of Pilipogan in Barangay Candatag, about 40 meters from his hut.
However, when he came back for it at past 9 o'clock in the morning of March 14,
1986, Agapay found the cow gone. He found hoof prints which led to the house of
Filomeno Vallejos. He was told that petitioner Exuperancio Canta had taken the
animal. 5

Upon instructions of the owner, Gardenio and Maria Tura went to recover the animal
from petitioner's wife, but they were informed that petitioner had delivered the cow
to his father, Florentino Canta, who was at that time barangay captain of Laca,
Padre Burgos, Southern Leyte. Accordingly, the two went to Florentino's house. On
their way, they met petitioner who told them that if Narciso was the owner, he
should claim the cow himself. Nevertheless, petitioner accompanied the two to his
father's house, where Maria recognized the cow. As petitioner's father was not in the
house, petitioner told Gardenio and Maria he would call them the next day so that
they could talk the matter over with his father.

However, petitioner never called them. Hence, Narciso Gabriel reported the matter
to the police of Malitbog, Southern Leyte. 6 As a result, Narciso and petitioner
Exuperancio were called to an investigation. Petitioner admitted taking the cow but
claimed that it was his and that it was lost on December 3, 1985. He presented two
certificates of ownership, one dated March 17, 1986 and another dated February 27,
1985, to support his claim (Exh. B). 7
Narciso presented a certificate of ownership issued on March 9, 1986, signed by the
municipal treasurer, in which the cow was described as two years old and female.
On the reverse side of the certificate is the drawing of a cow with cowlicks in the
middle of the forehead, between the ears, on the right and left back, and at the
base of the forelegs and hindlegs (Exhs. C, C-1 to 4). 8 All four caretakers of the cow
identified the cow as the same one they had taken care of, based on the location of
its cowlicks, its sex and its color. Gardenio described the cow as black in color, with
a small portion of its abdomen containing a brownish cowlick, a cowlick in the
middle of the forehead, another at the back portion between the two ears, and four
cowlicks located near the base of its forelegs and the hindlegs. 9

On the other hand, petitioner claimed he acquired the animal under an agreement
which he had with Pat. Diosdado Villanueva, that petitioner take care of a female
cow of Pat. Villanueva in consideration for which petitioner would get a calf if the
cow produced two offsprings. Petitioner claimed that the cow in question was his
share and that it was born on December 5, 1984. This cow, however, was lost on
December 2, 1985. Petitioner said he reported the loss to the police of Macrohon,
Padre Burgos, and Malitbog, on December 3, 1985 (Exh. A and Exh. 1). 10

Petitioner said that on March 14, 1986, his uncle Meno told him that he had seen
the cow at Pilipogan, under the care of Gardenio Agapay. He, therefore, went to
Pilipogan with the mother cow on March 14, 1986 to see whether the cow would
suckle the mother cow. As the cow did, petitioner took it with him and brought it,
together with the mother cow, to his father Florentino Canta. 11 Maria Tura tried to
get the cow, but Florentino refused to give it to her and instead told her to call
Narciso so that they could determine the ownership of the cow. 12 As Narciso did
not come the following day, although Maria did, Florentino said he told his son to
take the cow to the Municipal Hall of Padre Burgos. Petitioner did as he was told.
Three days later, Florentino and Exuperancio were called to the police station for
investigation. 13

Petitioner presented a Certificate of Ownership of Large Cattle dated February 27,

1985 14 and a statement executed by Franklin Telen, janitor at the treasurer's office
of the municipality of Padre Burgos, to the effect that he issued a Certificate of
Ownership of Large Cattle in the name of petitioner Exuperancio Canta on February
27, 1985 (Exh. 5). 15 The statement was executed at the preliminary investigation
of the complaint filed by petitioner against Narciso. 16

Petitioner's Certificate of Ownership was, however, denied by the municipal

treasurer, who stated that petitioner Exuperancio Canta had no Certificate of
Ownership of Large Cattle in the municipality of Padre Burgos (Exhs. E, E-1 and 2).
17 On the other hand, Telen testified that he issued the Certificate of Ownership of
Large Cattle to petitioner on March 24, 1986 but, at the instance of petitioner, he
(Telen) antedated it to February 27, 1985. 18
On January 24, 1997, the trial court rendered its decision finding petitioner guilty of
the offense charged. In giving credence to the evidence for the prosecution, the trial
court stated:

From the affidavits and testimonies of the complainant and his witnesses, it is
indubitable that it was accused Exuperancio Canta who actually took the cow away
without the knowledge and consent of either the owner/raiser/caretaker Gardenio
Agapay. DcCHTa

That the taking of the cow by the accused was done with strategy and stealth
considering that it was made at the time when Gardenio Agapay was at his shelter-
hut forty (40) meters away tethered to a coconut tree but separated by a hill.

The accused in his defense tried to justify his taking away of the cow by claiming
ownership. He, however, failed to prove such ownership. Accused alleged that on
February 27, 1985 he was issued a Certificate of Ownership of Large Cattle (Exh. 2-
A) for his cow by Franklin Telen, a janitor at the Office of the Municipal Treasurer of
Padre Burgos, a neighboring town. On rebuttal Franklin Telen denied in Court the
testimony of the accused and even categorically declared that it was only on March
24, 1986 that the accused brought the cow to the Municipal Hall of Padre Burgos,
when he issued a Certificate of Ownership of Large Cattle for the cow, and not on
February 27, 1985. Franklin Telen testified thus:

"Q. According to the defense, this Certificate of Ownership of Large Cattle was
issued by you on February 27, 1985. Is that correct?

A. Based on the request of Exuperancio, I antedated this.

(TSN, June 3, 1992, p. 7)"

The testimony of Franklin Telen was confirmed in open court by no less than the
Municipal Treasurer of Padre Burgos, Mr. Feliciano Salva. (TSN, September 29, 1992,
pp. 5-8).

If accused Exuperancio Canta were the owner of the cow in question, why would he
lie on its registration? And why would he have to ask Mr. Franklin Telen to antedate
its registry? It is clear that accused secured a Certificate of Ownership of Large
Cattle (Exh. 2-A) by feigning and manipulation (Exhs. A & B) only after the act
complained of in the instant case was committed on March 14, 1986. His claim of
ownership upon which he justifies his taking away of the cow has no leg to stand on.
Upon the other hand, the complainant has shown all the regular and necessary
proofs of ownership of the cow in question. 19

The Court of Appeals affirmed the trial court's decision and denied petitioner's
motion for reconsideration. Hence, this petition. It is contended that the prosecution
failed to prove beyond reasonable doubt his criminal intent in taking the disputed
cow.
First. Petitioner claims good faith and honest belief in taking the cow. He cites the
following circumstances to prove his claim:

1. He brought the mother cow to Pilipogan to see if the cow in question would
suckle to the mother cow, thus proving his ownership of it;

2. He compared the cowlicks of the subject cow to that indicated in the

Certificate of Ownership of Large Cattle issued on February 27, 1985 in his name,
and found that they tally;

3. He immediately turned over the cow to the barangay captain, after taking it,
and later to the police authorities, after a dispute arose as to its ownership; and

4. He filed a criminal complaint against Narciso Gabriel for violation of P.D. No.
533.

These contentions are without merit.

P.D. No. 533, 2(c) defines cattle-rustling as

. . . the taking away by any means, methods or scheme, without the consent of the
owner/raiser, of any of the abovementioned animals whether or not for profit or
gain, or whether committed with or without violence against or intimidation of any
person or force upon things. EIDaAH

The crime is committed if the following elements concur: (1) a large cattle is taken;
(2) it belongs to another; (3) the taking is done without the consent of the owner;
(4) the taking is done by any means, methods or scheme; (5) the taking is with or
without intent to gain; and (6) the taking is accomplished with or without violence or
intimidation against person or force upon things. 20

These requisites are present in this case. First, there is no question that the cow
belongs to Narciso Gabriel. Petitioner's only defense is that in taking the animal he
acted in good faith and in the honest belief that it was the cow which he had lost.
Second, petitioner, without the consent of the owner, took the cow from the custody
of the caretaker, Gardenio Agapay, despite the fact that he knew all along that the
latter was holding the animal for the owner, Narciso. Third, petitioner falsified his
Certificate of Ownership of Large Cattle by asking Telen to antedate it prior to the
taking to make it appear that he owned the cow in question. Fourth, petitioner
adopted "means, methods, or schemes" to deprive Narciso of his possession of his
cow, thus manifesting his intent to gain. Fifth, no violence or intimidation against
persons or force upon things attended the commission of the crime.

Indeed, the evidence shows that the Certificate of Ownership of Large Cattle which
petitioner presented to prove his ownership was falsified. Franklin Telen, the janitor
in the municipal treasurer's office, admitted that he issued the certificate to
petitioner 10 days after Narciso's cow had been stolen. Although Telen has
previously executed a sworn statement claiming that he issued the certificate on
February 27, 1985, he later admitted that he antedated it at the instance of
petitioner Exuperancio Canta, his friend, who assured him that the cow was his. 21

Telen's testimony was corroborated by the certification of the municipal treasurer of

Padre Burgos that no registration in the name of petitioner was recorded in the
municipal records. Thus, petitioner's claim that the cowlicks found on the cow tally
with that indicated on the Certificate of Ownership of Large Cattle has no value, as
this same certificate was issued after the cow had been taken by petitioner from
Gardenio Agapay. Obviously, he had every opportunity to make sure that the
drawings on the certificate would tally with that existing on the cow in question.

The fact that petitioner took the cow to the barangay captain and later to the police
authorities does not prove his good faith. He had already committed the crime, and
the barangay captain to whom he delivered the cow after taking it from its owner is
his own father. While the records show that he filed on April 30, 1986 a criminal
complaint against Narciso Gabriel, the complaint was dismissed after it was shown
that it was filed as a countercharge to a complaint earlier filed on April 16, 1986
against him by Narciso Gabriel.

Petitioner says that he brought a mother cow to see if the cow in question would
suckle to the mother cow. But cows frequently attempt to suckle to alien cows. 22
Hence, the fact that the cow suckled to the mother cow brought by petitioner is not
conclusive proof that it was the offspring of the mother cow.

Second. Petitioner contends that even assuming that his Certificate of Ownership is
"not in order," it does not necessarily follow that he did not believe in good faith
that the cow was his. If it turned out later that he was mistaken, he argues that he
committed only a mistake of fact but he is not criminally liable.

Petitioner's Certificate of Ownership is not only "not in order." It is fraudulent, having

been antedated to make it appear it had been issued to him before he allegedly
took the cow in question. That he obtained such fraudulent certificate and made use
of it negates his claim of good faith and honest mistake. That he took the cow
despite the fact that he knew it was in the custody of its caretaker cannot save him
from the consequences of his act. 23 As the Solicitor General states in his
Comment:

If petitioner had been responsible and careful he would have first verified the
identity and/or ownership of the cow from either Narciso Gabriel or Gardenio
Agapay, who is petitioner's cousin TSN, 9/12/91, p. 26). Petitioner, however, did not
do so despite the opportunity and instead rushed to take the cow. Thus, even if
petitioner had committed a mistake of fact he is not exempted from criminal liability
due to his negligence. 24
In any event, petitioner was not justified in taking the cow without the knowledge
and permission of its owner. If he thought it was the cow he had allegedly lost, he
should have resorted to the court for the settlement of his claim. Art. 433 of the
Civil Code provides that "The true owner must resort to judicial process for the
recovery of the property." What petitioner did in this case was to take the law in his
own hands. 25 He surreptitiously took the cow from the custody of the caretaker,
Gardenio Agapay, which act belies his claim of good faith.

For the foregoing reasons, we hold that the evidence fully supports the finding of
both the trial court and the Court of Appeals that accused-appellant is guilty as
charged. There is therefore no reason to disturb their findings.

However, the decision of the Court of Appeals should be modified in two respects.
IaHAcT

First, accused-appellant should be given the benefit of the mitigating circumstance

analogous to voluntary surrender. The circumstance of voluntary surrender has the
following elements: (1) the offender has not actually been arrested; (2) the offender
surrenders to a person in authority or to the latter's agent; and (3) the surrender is
voluntary. 26 In the present case, petitioner Exuperancio Canta had not actually
been arrested. In fact, no complaint had yet been filed against him when he
surrendered the cow to the authorities. It has been repeatedly held that for
surrender to be voluntary, there must be an intent to submit oneself unconditionally
to the authorities, showing an intention to save the authorities the trouble and
expense that his search and capture would require. 27 In petitioner's case, he
voluntarily took the cow to the municipal hall of Padre Burgos to place it
unconditionally in the custody of the authorities and thus saved them the trouble of
having to recover the cow from him. This circumstance can be considered
analogous to voluntary surrender and should be considered in favor of petitioner.

Second, the trial court correctly found petitioner guilty of violation of 2(c) of P. D.
No. 533, otherwise known as the Anti-Cattle Rustling Law of 1974. However, it erred
in imposing the penalty of 10 years and 1 day of prision mayor, as minimum, to 12
years, 5 months and 11 days of reclusion temporal medium, as maximum. The trial
court apparently considered P. D. No. 533 as a special law and applied 1 of the
Indeterminate Sentence Law, which provides that "if the offense is punished by any
other law, the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and the
minimum shall not be less than the minimum term prescribed by the same."
However, as held in People v. Macatanda, 28 P. D. No. 533 is not a special law. The
penalty for its violation is in terms of the classification and duration of penalties
prescribed in the Revised Penal Code, thus indicating that the intent of the
lawmaker was to amend the Revised Penal Code with respect to the offense of theft
of large cattle. In fact, 10 of the law provides:
The provisions of Articles 309 and 310 of Act No. 3815, otherwise known as the
Revised Penal Code, as amended, pertinent provisions of the Revised Administrative
Code, as amended, all laws, decrees, orders, instructions, rules and regulations
which are inconsistent with this Decree are hereby repealed or modified accordingly.

There being one mitigating circumstance and no aggravating circumstance in the

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

WHEREFORE, the decision of the Court of Appeals is AFFIRMED, with the

modification that petitioner Exuperancio Canta is hereby SENTENCED to suffer a
prison term of four (4) years and two (2) months of prision correccional maximum,
as minimum, to ten (10) years and one (1) day of prision mayor maximum, as
maximum.

SO ORDERED.