G.R. No.

L-56358 October 26, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LUIS B. TORING DIOSDADO BERDON and CARMELO B. BERDIN, accused-appellants.

The Solicitor General for plaintiff-appellee.

Fil C. Veloso counsel de oficio for Luis B. Toring.

Joel P. Alino for Berdon and Berdin.

FERNAN, C.J.:

The appellants herein seek the reversal of the October 28, 1980 decision of the Circuit Criminal Court in Cebu City in Criminal
Case No. CCC-XIV-2170, the dispositive portion of which reads:

WHEREFORE, the Court finds the accused Luis B. Toring guilty beyond
reasonable doubt of the crime of MURDER by direct participation as
principal; Diosdado Berdon as accomplice thereto; and Carmelo Berdin as
accessory after the fact.

Appreciating in favor of the accused Luis B. Toring the mitigating

circumstance of voluntary surrender, the said circumstance having been
offset by the aggravating circumstance of nighttime, the accused Luis Toring
should be, as he is, hereby sentenced to the penalty of RECLUSION
PERPETUA, with the accessory penalties of law.

There being neither mitigating nor aggravating circumstances on the part of

the accused Diosdado Berdon, the said accused should as he is hereby
sentenced to the indeterminate penalty of from SIX (6) YEARS of Prision
Correccional, as minimum, to TWELVE (12) and ONE (1) DAY
of ReclusionTemporal, as maximum, with the accessory penalties of the law.

Appreciating in favor of the accused Carmelo Berdin, the privileged mitigating

circumstance of minority, the said accused being only 17 years of age, the
accused Carmelo Berdin should be, as he is, sentenced to the penalty of SIX
(6) MONTHS and ONE (1) DAY of Prision Correccional, with the accessory
penalties of the law.

The defendants shall jointly and solidarily indemnify the heirs of the
deceased Samuel Augusto for actual and compensatory damages in the sum
of P15,000.00 and for moral damages in the sum of P50,000.00, without
subsidiary imprisonment in case of insolvency.

The instrument of the crime, the knife, Exhibit "B", is confiscated in favor of
the government.

Proportionate costs.
 SO ORDERED. 1

According to the prosecution, the antecedent facts are as follows:

In the evening of May 25, 1980, a benefit dance was held at sitio Naga, Babag II, Lapu-lapu
City for the last canvassing of votes for the candidates for princesses who would reign at the
sitio fiesta. As one of the candidates was the daughter of Samuel Augusto, he and the
members of his family attended the affair.

Also present were members of the kwaknit gang, a group which was noted for their bird-like
way of dancing and their propensity for drunkenness and provoking trouble. Its president,
called the "alas" king, was Luis Toring. The group was then outside the dancing area which
was ringed by benches.

At around 10:45 p.m., Samuel's daughter was proclaimed the winner in the contest. Beer
and softdrinks having been served the parents of the candidates by the officers of the Naga
Chapel Association which took charge of the affair, Samuel was tipsy when, after his
daughter's proclamation, he stepped out of the dancing area to answer the call of nature.

At that moment, barangay tanod Felix Berdin saw Luis Toring, Carmelo Berdin and Diosdado
Berdon proceed to a dark area while whispering to each other. Diosdado Berdon handed a
knife to Luis Toring, 2 who then approached Samuel from behind, held Samuel's left hand
with his left hand, and with his right hand, stabbed with the knife the right side of Samuel's
abdomen. 3 Upon seeing Felix running towards them, Luis Toring pulled out the knife and,
together with Carmelo Berdin and Diosdado Berdon, ran towards the dark. Felix tried to
chase the three but he was not able to catch them. He returned to where Samuel had
slumped and helped others in taking Samuel to the hospital.

According to Maria Catalina Sorono, who was six (6) meters away from Samuel and Luis
when the assault occurred, Diosdado Berdon and Carmelo Berdin were poised to deliver fist
blows on Samuel just before Luis Toring stabbed him. Diosdado gave the knife to Luis
Toring. 4

As soon as she saw the stabbing of Samuel, Maria Catalina shouted for help. The three
assailants ran towards the direction of the fields. Jacinto Lobas and Mario Andog responded
to her shouts and brought Samuel to the Opon Emergency Hospital where he died on arrival.
According to the necropsy report, 5 Samuel, who was thirty years old, died due to massive
hemorrhage secondary to the stab wound on the abdomen. Said wound is described in the
report as follows:

Stab wound, with herniation of omental issues; elliptical, 3.5 cms. long,
running vertically downward, edges clean-cut, superior extremity rounded,
inferior extremity sharp, located at the abdominal region, right anterior
aspect, 7.5 cms. to the right of anterior median line and 107.0 cms. above
right heel, directed backward, upward and medially, involving skin and the
underlying soft tissues, penetrating right peritoneal cavity, incising inferior
vena cava, attaining an approximate depth of 15.0 cms.

The death weapon, a kitchen knife made of stainless steel and with a red-colored handle,
was recovered from the house of Luis Toring. According to Patrolman Pantaleon P. Amodia,
the police found out during the investigation that Luis Toring had left the weapon with
"Camilo" Berdin. When the police confronted Berdin, the latter led them to the house of
Toring which Berdin entered. When he emerged from the house, Berdin handed the weapon
to the police. 6

An information for murder was filed against Toring. Subsequently, however, the information
was amended to include Diosdado Berdon and Carmelo Berdin as defendants. The three
were charged therein with conspiracy in killing Samuel Augusto in a treacherous manner.
Berdon, it was alleged, "conveniently supplied the death weapon" which Toring used in
stabbing Samuel while Berdin allegedly concealed the weapon to prevent its discovery by
the police. 7 The crime was purportedly committed with the attendance of the generic
aggravating circumstances of evident premeditation and nighttime.

All three accused pleaded not guilty to the offense charged. At the trial, Luis Toring, alias
"Lowe," testified that he was not the president of the kwaknit gang. He went to the benefit
dance in the company of Venir Ybañez, Joel Escobia, Ely Amion, Abel Pongase, Abe
Berdon, Genio Berdin and Alex Augusta. Toring and his group were standing outside the
dancing area when, at around eleven o'clock in the evening, Samuel, a known tough guy
("maldito"), approached them and held Venir Ybanez by his collar. Then Samuel thrust the
butt of his shotgun on the chin of Joel Escobia, 8 proceeded to another group who were also
gangmates of Toring, and again, with the barrel of his shotgun, hit Eli Amion's chest several
times. 9

Reacting to what he saw, Toring got his kitchen knife which was tucked in his waist,
approached Samuel from the latter's right side and stabbed him once as he did not intend to
kill Samuel. Toring then ran towards the dark portion of the area and went home. There, he
left the knife and proceeded to the hut by the fishpond of one Roman. 10

Toring was sleeping in the hut with his older brother, Arsenio, when, at around 4:00 o'clock in
the morning of May 26, 1980, Edgar Augusto, the younger brother of Samuel, shot them.
Arsenio was hit on the left leg and he stayed two months in the hospital for the treatment of
his wound. 11

At 2:00 o'clock in the afternoon of May 26, 1980, Toring surrendered to two Philippine
Constabulary soldiers.12 They brought him to the police of Lapu-lapu City on May 28,
1980.13 When the police asked him about the knife he used in stabbing Samuel, Toring told
them to go to Carmelo Berdin because he was the only person who knew where Toring hid
it. 14 Asserting that he was the one who returned the knife to his own house, Toring testified
that Carmelo Berdin used to see him hide his weapons upstairs because Berdin was a
frequent visitor of his. 15

For his part, Carmelo, a 5 feet tall, asthmatic 17-year-old whom the court described as
"lilliputian," admitted that he witnessed the stabbing incident but he ran away with his group
immediately after because he was afraid he might be shot by Samuel. He was with Toring
when the latter hid the still bloodied knife under a trunk in Toring's house. He was familiar
with the hiding place of the knife because Toring showed it to him and there were times
when he would get the knife there upon Toring's request. Carmelo corroborated Toring's
testimony that on that fateful night, Toring carried the knife tucked at the back of his
waistline. 16

In court, Toring testified that he never saw Diosdado at the dance. 17 However, in his sworn
statement dated May 28, 1980 and marked as Exhibit D, Toring stated that he took the knife
from Diosdado to stab Samuel. Confronted with said statement, Diosdado said that when he
asked Toring why he implicated him, Toring allegedly replied that he "included" Diosdado
because of the case the barangay brigade had filed against Toring. 18

According to Diosdado, he did not attend the May 25 dance because of the trouble which
erupted during the dance the night before. He did not have anything to do with the stabbing
of Samuel. He admitted, however, that a week after the incident, his family went to barrio
Andaliw Ronda, Cebu, for their yearly visit to his father-in-law. He stayed there for fifteen
days and would have stayed longer had not his mother informed him of the subpoena
addressed to him. 19

On October 28, 1980, a day after the last day of hearing, the lower court 20 rendered a
decision discrediting Toring's claim that the killing of Samuel was justified because it was
done in defense of a stranger pursuant to Article 11 (3) of the Revised Penal Code. The
lower court found that Toring was the "aggressor acting in retaliation or revenge by reason of
a running feud or long-standing grudge" between the kwaknit gang and the group of Samuel,
who, being the son of the barangay captain, was a "power to be reckoned with." It mentioned
the fact that a year before the incident in question, Toring was shot by Edgar Augusto
(Samuel's brother) and hence, in his desire to avenge himself, Toring, "needed but a little
excuse to do away with the object of his hatred. 21

The lower court could not believe that Samuel brought along his shotgun to the dance
because he was "not reputed to be a public official or functionary entitled to possess a
firearm." Otherwise, the police and the barangay tanod would have arrested him. The court
surmised that if Samuel really carried a shotgun, he certainly must have had a permit or
license to possess the same.

It noted that while Toring testified that Samuel was aiming his shotgun at the chest of Ely
Amyon (Amion), prosecution witness Joel Escobia claimed that he was at the receiving end
of Samuel's thrusts with the butt of his shotgun. To the court, such discrepancy is fatal to the
defense because in appreciating the justifying circumstance of defense of a stranger, the
court must know "with definiteness the identity of the stranger defended by the accused." 22

The lower court, however, ruled out the existence of conspiracy among the three accused on
the ground that there was no proof on what they were whispering about when Felix saw
them. Accordingly, it held that the accused have individual or separate liabilities for the killing
of Samuel: Toring, as a principal, Diosdado Berdon as an accomplice by his act of giving
Toring the knife, and Carmelo Berdin as an accessory for concealing the weapon. It
considered treachery as the qualifying circumstance to the killing, found no proof as to
allegation of evident premeditation but appreciated nighttime as an aggravating
circumstance. It meted the accused the penalties mentioned above.

All three accused appealed.

Toring seeks his exoneration by contending that his assault on Samuel was justified because
he acted in defense of his first cousin, Joel Escobia. Article 11 (3) of the Revised Penal Code
provides that no criminal liability is incurred by anyone "who acts in defense of ... his
relatives ... by consanguinity within the fourth civil degree, provided that the first and second
requisites prescribed in the next preceding circumstance are present, and the further
requisite, in case the provocation was given by the person attacked, that the one making
defense had no part therein." The first and second requisites referred to are enumerated in
paragraph (b) in the same article on selfdefense as: (a) unlawful aggression, and (b) lack of
sufficient provocation on the part of the person defending himself.
Joel Escobia, whose chin was hit with the butt of Samuel's shotgun, is the first cousin of
Toring their fathers being brothers, 23 although no explanation appears on record why they
have different surnames. At any rate, this allegation on relationship was not rebutted by the
prosecution.

The appreciation of the justifying circumstance of defense of a relative, however, hinges in

this case on the presence of unlawful aggression on the part of the victim. Corollarily, the
claim of Toring that Samuel was, at the time of the assault, carrying a shotgun to intimidate
Toring's group must be proven.

Understandably, no prosecution witness attested that they saw Samuel with a firearm. The
prosecution even recalled to the witness stand Samuel's widow who asserted that her
husband did not own any firearm. 24 Going along with the prosecution's evidence, the lower
court arrived at the rather gratuitous conjecture that Samuel could not have had a shotgun
with him because no one without a permit would carry a firearm without risking arrest by the
police or the barangay tanod. At the same time, however, the lower court described Samuel
as the son of the barangay captain who "had the run of the place and had his compelling
presence felt by all and " sundry." 25

While matters dealing with the credibility of witnesses and appreciation of evidence are
primarily the lower court's province, this Court has the power to determine whether in the
performance of its functions, the lower court overlooked certain matters which may have a
substantial effect in the resolution of a case. 26 Defense witness Joel Escobia was, besides
Toring, the only witness whose sworn statement was taken by the police on May 26, 1980,
the day after the fatal assault on Samuel.

In his sworn statement, 27 Escobia attested that as he was about to dance with a girl, Samuel
stopped him, pointed his shotgun at him, took a bullet from his jacket pocket, showed it to
Escobia and asked him, "Do you like this, Dong?" to which Escobia replied, "No, Noy I do not
like that." Samuel then placed the bullet in the shotgun and was thus pointing it at Escobia
when Toring came from behind Samuel and stabbed the latter. Even on cross-examination at
the trial, Escobia did not depart from his statement. In fact he added that Samuel pointed the
shotgun at his chin and told him to eat the bullet. 28

There is no reason to doubt Joel Escobia's assertion of Samuel's unlawful aggression

inasmuch as his sworn statement 29 and testimony in court had not been successfully
discredited by the prosecution which also failed to prove that Joel had reason to prevaricate
to favor Toring.

The presence of unlawful aggression on the part of the victim and the lack of proof of
provocation on the part of Toring notwithstanding, full credence cannot be given, to Toring's
claim of defense of a relative. Toring himself admitted in court 30 as well as in his sworn
statement 31 that in 1979, he was shot with a .22 caliber revolver by Edgar Augusto, Samuel's
brother. It cannot be said, therefore, that in attacking Samuel, Toring was impelled by pure
compassion or beneficence or the lawful desire to avenge the immediate wrong inflicted on
his cousin. Rather, he was motivated by revenge, resentment or evil motive 32 because of a
"running feud" between the Augusto and the Toring brothers. As the defense itself claims,
after the incident subject of the instant case occurred, Toring's brother, Arsenio, was shot on
the leg by Edgar Augusto. Indeed, vendetta appears to have driven both camps to commit
unlawful acts against each other. Hence, under the circumstances, to justify Toring's act of
assaulting Samuel Augusto would give free rein to lawlessness.
The lower court correctly considered the killing as murder in view of the presence of the
qualifying circumstance of treachery. The suddenness of the assault rendered Samuel
helpless even to use his shotgun. We also agree with the lower court that conspiracy and
evident premeditation were not proven beyond reasonable doubt. Moreover, nighttime
cannot be considered as an aggravating circumstance. There is no proof that it was
purposely sought to insure the commission of the crime or prevent its discovery. 33 However,
Toring should be credited with the privileged mitigating circumstance of incomplete defense
of relative and the generic mitigating circumstance of voluntary surrender.

The penalty for murder under Article 248 of the Revised Penal Code being reclusion
temporal maximum to death, the imposable penalty is prision mayor maximum to reclusion
temporal medium in view of the presence of the mitigating circumstances of incomplete
defense of relative and voluntary surrender (Art. 64 [5]). Applying the Indeterminate
Sentence Law, the proper penalty to be meted on Toring is prision correctional maximum as
minimum to prision mayor maximum as maximum penalty.

On the culpability of Diosdado Berdon, the Court holds that his defense of alibi cannot be
sustained in the absence of proof that it was physically impossible for him to be at the scene
of the crime when it was committed. 34 His house was only a kilometer away from the place
where he supplied the knife to Toring. 35 That distance does not preclude the possibility that
Diosdado aided Toring in the perpetration of the crime as it could be negotiated in just a few
minutes by merely walking. 36 Moreover, his alibi was uncorroborated as it was founded only
on his own testimony and what appears as a self-exonerating affidavit. 37

But what pins culpability on Diosdado were the testimonies of at least two prosecution
witnesses who positively identified him as the one who gave Toring the knife. Motive,
therefore, has become immaterial in the face of such positive identification 38 and hence,
even if it were true that he was not a member of the kwaknit gang, his participation in the
killing has been proven beyond reasonable doubt. Added to this is the fact that Toring
himself in his sworn statement before the police pointed to him as the source of the
knife. 39 Verily, Toting could not have implicated him because of the incomprehensible reason
that a case had been filed against Toring before the barangay brigade.

Pursuant to Article 52 of the Revised Penal Code, as an accomplice by his previous act of
supplying Toring the death weapon, Diosdado Berdon should be meted the penalty of prision
mayor maximum to reclusion temporalmedium which is the penalty next lower in degree
to reclusion temporal maximum to death, the penalty prescribed for murder by Article 248
(Article 6 [3]). There being no mitigating or aggravating circumstances, the penalty should be
in its medium period or reclusion temporal minimum (Article 64 [1]). Applying the
Indeterminate Sentence Law, the minimum penalty should be taken from prision mayor
minimum while the maximum penalty should be within the period of reclusion temporal
minimum.

With regards to Carmelo Berdin, his culpability as an accessory to the murder has not been
proven beyond reasonable doubt. The fact that he knew where Toring hid the knife does not
imply that he concealed it to prevent its discovery (Article 19 [2]). There simply is no proof to
that effect. On the contrary, Luis Toring in his sworn statement and testimony during the trial
testified that after stabbing the victim, he ran away and went to his house to hide the murder
weapon. Being a close friend of Toring and a frequent visitor to the latter's house, it is not
impossible for Carmelo Berdin to know where Toring hid his knives. Significantly, Carmelo
readily acceded to the request of police officers to lead them to the place where Toring kept
the knife. He willingly retrieved it and surrendered it to the police, a behavior we find
inconsistent with guilt.

WHEREFORE, the decision of the lower court is hereby affirmed insofar as it convicts Luis
Toring as principal in the murder of Samuel Augusto and Diosdado Berdon as an accomplice
thereto.

The lower court's decision is modified as follows:

(a) Luis Toring shall be imposed the indeterminate penalty of six (6) years of prision
correccional maximum as minimum to twelve (12) years of prision mayor maximum as
maximum;

(b) Diosdado Berdon shall suffer the indeterminate penalty of six (6) years and one (1) day
of prision mayorminimum as minimum to twelve (12) years and one (1) day of reclusion
temporal minimum as maximum;

(c) Carmelo Berdin is acquitted as an accessory to the murder of Samuel Augusto, and

(d) Luis Toring and Diosdado Berdon shall jointly and severally pay the heirs of Samuel
Augusto an indemnity of thirty thousand pesos (P30,000.00). Costs against appellants Toring
and Berdon.

SO ORDERED.

G.R. No. L-60159 November 6, 1989

P/CPL. FAUSTO ANDAL, petitioner,

vs.
SANDIGANBAYAN AND PEOPLE OF THE PHILIPPINES, respondents.

Eugenio E. Mendoza and Wenceslao G. Laureta for petitioner.

PADILLA, J.:

The petitioner, Fausto Andal, a member of the Batangas Integrated National Police, has
appealed to this Court the decision * of the Sandiganbayan in Criminal Case No. 2521 which
found him guilty of the crime of Homicide and sentenced him to suffer the penalty of one (1)
year of prision correccional; to indemnify the heirs of the victim in the amounts of P12,000.00
and P20,000.00, as moral damages; and to pay the costs.

In his petition for review, the petitioner alleges that the Sandiganbayan erred in rejecting his
plea of self-defense, on the ground that the initial unlawful aggression on the part of the
victim ceased after the petitioner had disarmed him.

We find no merit in the petition for it raises only factual issues. The record of this case shows
that the herein petitioner, Fausto Andal, then a corporal in the Batangas Integrated National
Police, whose duty shift was from 4:00 o'clock in the afternoon to 12:00 o'clock midnight, was
on patrol aboard a tricycle driven by Police Pfc. Casiano Quinio in the evening of 25
September 1980. At about 7:00 o'clock that night, he went to the pier located at Sta. Clara,
Batangas City, to check on one of his men, Pfc. Maximo Macaraig, who was stationed there,
because the said Macaraig had failed to report to police headquarters for briefing.

Upon reaching the police checkpoint at the pier, and upon seeing Macaraig, petitioner asked
Macaraig why he did not pass by police headquarters for briefing before proceeding to his
post. Macaraig replied that he did not have to report to police headquarters since he already
had his orders. Sensing trouble, Quinio drove away his tricycle. Macaraig, however, followed
them and told the petitioner: "You report, supsup, ka." Petitioner kept his cool and did not say
anything. But, Quinio went to Macaraig to pacify him. Thereafter, petitioner and Quinio went
back to the poblacion of Batangas City.

At about 11:00 o'clock that night, petitioner and Quinio parked their vehicle in front of the
Philbanking Building at P. Burgos Street, Batangas City. Quinio alighted from the tricycle and
joined Pat. Andres Perez and Pat. Pedro Banaag who were seated on a bench. The
petitioner also alighted from the tricycle and stood at the sidewalk near the bench. After a
few minutes, Macaraig arrived and went straight to the petitioner. He was furious this time
and demanded why the petitioner had embarrassed him in front of so many people. The
petitioner denied the charge and called Quinio to clear up matters with Macaraig. Quinio told
Macaraig that the petitioner did not utter defamatory words against him and asked him to
forget the incident. ("Pasensiyahan na kayo, hindi kayo magkakaiba.") Macaraig did not say
anything. But, he returned to the petitioner and challenged him. Quinio again tried to pacify
Macaraig and brought him across the street. Still, Macaraig refused to be pacified and went
to the petitioner with a drawn gun in his hand.

Pointing the gun menacingly at the petitioner, Macaraig said: "Bumunot ka bumunot ka."
Petitioner, however, refused to fight, saying: "I cannot fight you because we are both
policemen" Macaraig, nevertheless, fired his gun pointblank at the petitioner, hitting the latter
in the middle aspect, lower right knee. Petitioner then lunged at Macaraig and they grappled
for possession of the gun. Petitioner was able to wrest the gun from Macaraig. Thereafter,
two (2) successive shots were fired and Macaraig fell to the ground. He was brought to the
hospital but he was dead on arrival.

The factual issue hinges on what transpired after the petitioner had wrested the gun from the
deceased until the two (2) shots were fired, which caused the death of Macaraig. The
findings of respondent court on this factual issue are to this effect:

The pivotal question is: Was there an appreciable time lapse between the
first aggression, i.e. when deceased shot accused on his knee and the time
accused resorted to force by way of firing the two shots at the deceased?
The facts unfolded indicate that there was. This is what happened after
accused had grabbed the gun: (1) He asked deceased, "Why did you fire at
me?" (2) He even turned bis head towards his son and instructed him just to
stay in the jeep. (3) His son, Domingo Andal, challenged deceased to a fight
"Sportsman like." (4) Deceased moved backward — 2 meters away from
accused. (5) Pfc. Quinio even thought the trouble was over as he started to
get his tricycle. 1

The petitioner contends that after he had taken possession of' the gun from Macaraig, the
latter tried to grab the gun back and, in the scuffle, the gun went off twice, hitting the
deceased. But, this claim was not given credence by the respondent court which said:
 The theory of the defense that the two shots were fired while accused and
deceased were grappling for the possession of the gun, is fictitious. When
Pat. Perez heard the two shots, deceased was "more or less" two meters
from the accused (p 38, TSN sess. i.d.) This jibes with the testimony of Pat.
Quinio that after accused had wrested the gun from deceased, the latter
"somewhat backout" (p. 76, TSN sess. i.d.) More important, immediately after
the two shots, accused was holding the gun with his right hand and as
demonstrated in Court, said "right hand stretched downward" (. p. 77, TSN
sess. i.d.). This demonstration is given credence by corroborative physical
evidence. According to Dr. Luis Aclan who examined the body of deceased,
the trajectory of the bullet was downward (see Exh. "B-l") with the right armpit
(No. 3) as the point of entrance and the back of the body the point of exit (No.
5). The other slug had its point of entrance at No. 2 in Exhibit "B-l." 2

In its resolution, denying the petitioner's motion for reconsideration of the decision, the
respondent court also said:

It cannot be correctly held, to quote the words of accused in his motion, that
'it was precisely when the two protagonists were grappling for the possession
of the gun that the two shots were suddenly fired resulting to the fatal
wounding of the deceased'. This would be contrary to the testimony of Pat.
Perez, a witness whose credibility the defense does not impugn. According to
Pat. Perez, deceased was 'more or less' two meters from the accused when
he heard two gun shots. Immediately after they were fired, this witness
looked at the direction where they came from. He saw accused holding a gun
with his right hand stretched downward. Under such scenario with a distance
of two meters apart and the hand of accused holding the gun stretched
downward — it is clear that deceased and accused were not grappling for the
possession of the gun at the time the two shots were fired . 3

In a petition for review under Rule 45 of the Rules of Court and Section 7 of P.D. 1610
creating the Sandiganbayan, the factual findings of the Sandiganbayan are entitled to great
respect and only questions of law may be raised in the Supreme Court. 4

Moreover, well settled is the rule that when the resolution of a factual issue hinges on the
credibility of witnesses, the findings of fact of the trial court will not be disturbed, unless it has
plainly overlooked certain facts of substance and value which, if considered, mights affect
the result of the case. Herein petitioner failed to demonstrate that his case falls under the
exception which would justify this Court to overturn the findings of fact of the trial court, as
heretofore cited and summarized thus —

Stated briefly, the initial illegal aggression staged by deceased had ceased
after he was disarmed by accused. By then, accused a taller and bigger man
than deceased had the upperhand. He was in possession of the gun of
deceased while the latter was unarmed. In fact, it was probably because of
this circumstance that deceased moved backward. Aside from accused, his
son who dared to fight deceased was there, not to say Pat. Perez and Quinio
all under his supervision. Patently, there was no further threat to the life and
limb of accused.

Absent the element of unlawful aggression, there is no self-defense complete

(Art. II, par. 1) or incomplete (Art. 13, par. 1, RPC). 5
We agree with the Sandiganbayan that the petitioner failed to prove the defense he had
raised. The primordial requisite of self-defense is unlawful aggression. And for unlawful
aggression to be present, there must be a real danger to life or personal safety. In the instant
case, there was no imminent and real danger to the life or limb of the petitioner when he shot
the deceased, since the latter had already been disarmed. As former Chief Justice Aquino
states in his book on Criminal Law:

In order to justify self-defense, it is essential that the attack upon defendant

be simultaneous with the killing, or preceded the latter without an appreciable
interval of time. (Ferrer, 1 Phil. 56),

xxx xxx xxx

The harm caused by one person to another who offended or caused him
injury, sometime after he suffered such offense or such injury, does not
constitute an act of self-defense, but an act of revenge. (Banzuela 31 Phil.
564).6

In imposing on the appellant the penalty of just one (11) year of prision correccional, the
respondent Court held (which we here affirm):

In People vs. Oanis and Galanta (74 Phil. 257), the court set forth two
requisites in order that fulfillment of duty and exercise of a right 7 may be
considered as justifying circumstance, namely: (a) that the offender acting
[sic] in the performance of a duty or in the lawful exercise of a right; and (b)
that the injury or offense committed be the necessary consequence of the
due performance of such duty or in the lawful exercise of such right or office.
If one is absent, accused is entitled to the privileged mitigating circumstance
of incomplete fulfillment of duty or lawful exercise of right or office. 8

xxx xxx xxx

It is evident that accused was acting in the performance of his duty as

supervisor of deceased and policemen when the events that led to the
shooting occurred. His attempt to discipline his men was resented by
deceased who was one of them. Such attitude did not diminish with the
passage of hours; instead, deceased's rage heightened to violence. He not
merely uttered verbal insults to his superior but actually drew his gun and
shot him. Fortunately, the latter overpowered deceased. Unfortunately,
accused did not stop at that point. He used unnecessary violence against the
defenseless person of the deceased. Thus, he exceeded the limits of his
authority. 9

Article 69 of the Revised Penal Code vests discretion to [sic] the court in
lowering the penalty either by one or two degrees whenever incomplete
justifying circumstance exists in a given case like the case at bar. The
laudable patience of accused in not retaliating despite repeated insults by a
subordinate, his length of service in the government (since 1957), and most
important, his obsession to inculcate discipline in his men, to OUR mind,
entitle accused to a two-degree reduction of the penalty prescribed by law.
Our attitude is a signal to the men in uniform that while WE condemn
felonious violence WE support efforts to maintain discipline in the service. 10
WHEREFORE, the petition is hereby DENIED and the decision of the respondent
Sandiganbayan is AFFIRMED. With costs.

SO ORDERED.

[G.R. No. 125059. March 17, 2000]

FRANCISCO T. SYCIP, JR., petitioner, vs. COURT OF APPEALS and PEOPLE OF
THE PHILIPPINES, respondents.
DECISION
QUISUMBING, J.:
For review on certiorari is the decision of the Court of Appeals, dated February 29,
1996, in CA-G.R. CR No. 15993, which affirmed the judgment of the Regional Trial
Court of Quezon City, Branch 95, in Criminal Cases Nos. Q-91-25910 to 15, finding
petitioner guilty beyond reasonable doubt of violating B.P. Blg. 22, the Bouncing
Checks Law.
The facts in this case, as culled from the records, are as follows:
On August 24, 1989, Francisco T. Sycip agreed to buy, on installment, from Francel
Realty Corporation (FRC), a townhouse unit in the latter's project at Bacoor, Cavite.
Upon execution of the contract to sell, Sycip, as required, issued to FRC, forty-eight
(48) postdated checks, each in the amount of P9,304.00, covering 48 monthly
installments.
After moving in his unit, Sycip complained to FRC regarding defects in the unit and
incomplete features of the townhouse project. FRC ignored the complaint.
Dissatisfied, Sycip served on FRC two (2) notarial notices to the effect that he was
suspending his installment payments on the unit pending compliance with the
project plans and specifications, as approved by the Housing and Land Use
Regulatory Board (HLURB). Sycip and 12 out of 14 unit buyers then filed a
complaint with the HLURB. The complaint was dismissed as to the defects, but FRC
was ordered by the HLURB to finish all incomplete features of its townhouse project.
Sycip appealed the dismissal of the complaint as to the alleged defects.
Notwithstanding the notarial notices, FRC continued to present for encashment
Sycip's postdated checks in its possession. Sycip sent "stop payment orders" to the
bank. When FRC continued to present the other postdated checks to the bank as the
due date fell, the bank advised Sycip to close his checking account to avoid paying
bank charges every time he made a "stop payment" order on the forthcoming
checks. Due to the closure of petitioner's checking account, the drawee bank
dishonored six postdated checks. FRC filed a complaint against petitioner for
violations of B.P. Blg. 22 involving said dishonored checks.
On November 8, 1991, the Quezon City Prosecutor's Office filed with the RTC of
Quezon City six Informations docketed as Criminal Cases No. Q-91-25910 to Q-91-
25915, charging petitioner for violation of B.P. Blg. 22.
The accusative portion of the Information in Criminal Case No. Q-91-25910 reads:
"That on or about the 30th day of October 1990 in Quezon City, Philippines and
within the jurisdiction of this Honorable Court, the said accused, did then and there,
willfully, unlawfully and feloniously make, draw and issue in favor of Francel Realty
Corporation a check 813514 drawn against Citibank, a duly established domestic
banking institution in the amount of P9,304.00 Philippine Currency
dated/postdated October 30, 1990 in payment of an obligation, knowing fully well
at the time of issue that she/he did not have any funds in the drawee bank of (sic)
the payment of such check; that upon presentation of said check to said bank for
payment, the same was dishonored for the reason that the drawer thereof, accused
Francisco T. Sycip, Jr. did not have any funds therein, and despite notice of dishonor
thereof, accused failed and refused and still fails and refused (sic) to redeem or
make good said check, to the damage and prejudice of the said Francel Realty
Corporation in the amount aforementioned and in such other amount as may be
awarded under the provisions of the Civil Code.
"CONTRARY TO LAW."[1]
Criminal Cases No. Q-91-25911 to Q-91-25915, with Informations similarly worded
as in Criminal Case No. Q-91-25910, except for the dates, and check numbers[2] were
consolidated and jointly tried.
When arraigned, petitioner pleaded "Not Guilty" to each of the charges. Trial then
proceeded.
The prosecution's case, as summarized by the trial court and adopted by the
appellate court, is as follows:
"The prosecution evidence established that on or about August 24, 1989, at the
office of the private complainant Francel Realty Corporation (a private domestic
corporation engaged in the real estate business) at 822 Quezon Avenue, QC, accused
Francisco Sycip, Jr. drew, issued, and delivered to private complainant Francel
Realty Corporation (FRC hereinafter) six checks (among a number of other checks),
each for P9,304.00 and drawn pay to the order of FRC and against Francisco's
account no. 845515 with Citibank, to wit: Check No. 813514 dated October 30, 1990
(Exh. C), Check No. 813515 dated November 30, 1990 (Exh. D), Check No. 813518
dated February 28,1991 (Exh. E), Check No. 813516 dated December 30, 1990 (Exh.
F), Check No. 813517 dated January 30, 1991 (Exh. G) and Check No. 813519 dated
March 30, 1991 (Exh. H), as and in partial payment of the unpaid balance of the
purchase price of the house and lot subject of the written contract executed and
entered into by and between FRC as seller and Francisco as buyer on said date of
August 24, 1989 (Exh. B, also Exh. 1). The total stipulated purchase price for the
house and lot was P451,700.00, of which Francisco paid FRC in the sum of
P135,000.00 as down payment, with Francisco agreeing and committing himself to
pay the balance of P316,000.00 in 48 equal monthly installments of P9,304.00
(which sum already includes interest on successive monthly balance) effective
September 30, 1989 and on the 30th day of each month thereafter until the
stipulated purchase price is paid in full. The said six Citibank checks, Exhs. C thru H,
as earlier indicated were drawn, issued, and delivered by Francisco in favor of FRC
as and in partial payment of the said 48 equal monthly installments under their said
contract (Exh. B, also Exh. 1). Sometime in September 1989, the Building Official's
certificate of occupancy for the subject house -a residential townhouse -was issued
(Exh. N) and Francisco took possession and started in the use and occupancy of the
subject house and lot.
"When the subject six checks, Exhs. C thru H, were presented to the Citibank for
payment on their respective due dates, they were all returned to FRC dishonored
and unpaid for the reason: account closed as indicated in the drawee bank's
stamped notations on the face and back of each check; in fact, as indicated in the
corresponding record of Francisco's account no. 815515 with Citibank, said account
already had a zero balance as early as September 14, 1990 (Exh. 1-5).
Notwithstanding the fact that FRC, first thru its executive vice president and project
manager and thereafter thru its counsel, had notified Francisco, orally and in
writing, of the checks' dishonor and demanded from him the payment of the amount
thereof, still Francisco did not payor make good any of the checks (Exhs. I thru
K)..."[3]
The case for the defense, as summarized also by the trial court and adopted by the
Court of Appeals, is as follows:
"The defense evidence in sum is to the effect that after taking possession and
starting in the use and occupancy of the subject townhouse unit, Francisco became
aware of its various construction defects; that he called the attention of FRC, thru its
project manager, requesting that appropriate measures be forthwith instituted, but
despite his several requests, FRC did not acknowledge, much less attend to them;
that Francisco thus mailed to FRC a verified letter dated June 6, 1990 (Exh. 2) in sum
giving notice that effective June 1990, he will cease and desist 'from paying my
monthly amortization of NINE THOUSAND THREE HUNDRED FOUR (P9,304.00)
PESOS towards the settlement of my obligation concerning my purchase of Unit No.
14 of FRC Townhomes referred to above, unless and until your Office satisfactorily
complete(s) the construction, renovation and/or repair of my townhouses (sic) unit
referred to above and that should FRC 'persist in ignoring my aforesaid requests, I
shall, after five (5) days from your receipt of this Verified Notice, forthwith petition
the [HLURB] for Declaratory Relief and Consignation to grant me provisional relief
from my obligation to pay my monthly amortization to your good Office and allow
me to deposit said amortizations with [HLURB] pending your completion of FRC
Townhomes Unit in question'; that Francisco thru counsel wrote FRC, its president,
and its counsel notices/letters in sum to the effect that Francisco and all other
complainants in the [HLURB] case against FRC shall cease and desist from paying
their monthly amortizations unless and until FRC satisfactorily completes the
construction of their units in accordance with the plans and specifications thereof as
approved by the [HLURB] and as warranted by the FRC in their contracts and that
the dishonor of the subject checks was a natural consequence of such suspension of
payments, and also advising FRC not to encash or deposit all other postdated checks
issued by Francisco and the other complainants and still in FRC's possession (Exhs.
3 thru 5); that Francisco and the other complainants filed the [HLURB] case against
FRC and later on a decision was handed down therein and the same is pending
appeal with the Board (Exhs. 6, 7, & 12 thru 17, also Exh. 8); that as of the time of
presentation of the subject checks for payment by the drawee bank, Francisco had at
least P150,000.00 cash or credit with Citibank (Exhs. 10 & 11) and, that Francisco
closed his account no. 845515 with Citibank conformably with the bank's customer
service officer's advice to close his said account instead of making a stop-payment
order for each of his more than 30 post-dated checks still in FRC's possession at the
time, so as to avoid the P600.00-penalty imposed by the bank for every check
subject of a stop-payment order."[4]
On March 11, 1994, the trial court found petitioner guilty of violating Section 1 of
B.P. Blg. 22 in each of the six cases, disposing as follows:
"WHEREFORE, in each of Crim. Cases Nos. Q-91-25910, Q-91-25911, Q-91-25912, Q-
91-25913, Q-91-25914 and Q-91-25915, the Court finds accused Francisco T. Sycip,
Jr. guilty beyond reasonable doubt of a violation of Sec. 1 of Batas Pambansa Blg. 22
and, accordingly, he is hereby sentenced in and for each case to suffer imprisonment
of thirty (30) days and pay the costs. Further, the accused is hereby ordered to pay
the offended party, Francel Realty Corporation, as and for actual damages, the total
sum of fifty-five thousand eight hundred twenty four pesos (P55,824.00) with
interest thereon at the legal rate from date of commencement of these actions, that
is, November 8, 1991, until full payment thereof.
"SO ORDERED."[5]
Dissatisfied, Sycip appealed the decision to the Court of Appeals. His appeal was
docketed as CA-G.R. CR No. 15993. But on February 29, 1996, the appellate court
ruled:
"On the basis of the submission of the People, We find and so hold that appellant has
no basis to rely on the provision of PD 957 to justify the non-payment of his
obligation, the closure of his checking account and the notices sent by him to private
complainant that he will stop paying his monthly amortizations."[6]
Petitioner filed a motion for reconsideration on March 18, 1996, but it was denied
per Resolution dated April 22, 1996.
Hence, the instant petition anchored on the following assignment of errors:
I
"THE APPELLATE COURT ERRED IN AFFIRMING THE DECISION OF THE LOWER
COURT FINDING THAT THE ACCUSED-APPELLANT DID NOT HAVE ANY
JUSTIFIABLE CAUSE TO STOP OR OTHERWISE PREVENT THE PAYMENT OF THE
SUBJECT CHECKS BY THE DRAWEE BANK.
II
"THE LOWER COURT ERRED IN FINDING THAT THE ACCUSED-APPELLANT MUST
BE DEEMED TO HAVE WAIVED HIS RIGHT TO COMPLAIN AGAINST THE
DEVELOPMENT OF THE TOWNHOUSE UNIT AND THE TOWNHOUSE PROJECT.
III
"THE APPELLATE COURT ERRED IN AFFIRMING THE DECISION OF THE LOWER
COURT THAT THE ACCUSED-APPELLANT DID NOT HAVE SUFFICIENT FUNDS
WITH THE DRAWEE BANK TO COVER THE SUBJECT CHECKS UPON PRESENTMENT
FOR PAYMENT THEREOF.
IV
"THE APPELLATE COURT ERRED IN AFFIRMING THE DECISION OF THE LOWER
COURT CONVICTING THE ACCUSED-APPELLANT AND AWARDING DAMAGES IN
FAVOR OF PRIVATE COMPLAINANT."[7]
The principal issue before us is whether or not the Court of Appeals erred in
affirming the conviction of petitioner for violation of the Bouncing Checks Law.
Petitioner argues that the court a quo erred when it affirmed his conviction for
violation of B.P. Blg. 22, considering that he had cause to stop payment of the checks
issued to respondent. Petitioner insists that under P.D. No. 957, the buyer of a
townhouse unit has the right to suspend his amortization payments, should the
subdivision or condominium developer fail to develop or complete the project in
accordance with duly-approved plans and specifications. Given the findings of the
HLURB that certain aspects of private complainant's townhouse project were
incomplete and undeveloped, the exercise of his right to suspend payments should
not render him liable under B.P. Blg. 22.
The Solicitor General argues that since what petitioner was charged with were
violations of B.P. Blg. 22, the intent and circumstances surrounding the issuance of a
worthless check are immaterial.[8] The gravamen of the offense charged is the act
itself of making and issuing a worthless check or one that is dishonored upon its
presentment for payment. Mere issuing of a bad check is malum
prohibitum, pernicious and inimical to public welfare. In his view, P.D. No. 957 does
not provide petitioner a sufficient defense against the charges against him.
Under the provisions of the Bouncing Checks Law (B.P. No. 22),[9] an offense is
committed when the following elements are present:
(1) the making, drawing and issuance of any check to apply for account or for value;
(2) the knowledge of the maker, drawer, or issuer that at the time of issue he does
not have sufficient funds in or credit with the drawee bank for the payment of such
check in full upon its presentment; and
(3) the subsequent dishonor of the check by the drawee bank for insufficiency of
funds or credit or dishonor for the same reason had not the drawer, without any
valid cause, ordered the bank to stop payment.[10]
In this case, we find that although the first element of the offense exists, the other
elements have not been established beyond reasonable doubt.
To begin with, the second element involves knowledge on the part of the issuer at
the time of the check's issuance that he did not have enough funds or credit in
the bank for payment thereof upon its presentment. B.P. No. 22 creates a
presumption juris tantum that the second element prima facie exists when the first
and third elements of the offense are present.[11] But such evidence may be rebutted.
If not rebutted or contradicted, it will suffice to sustain a judgment in favor of the
issue, which it supports.[12] As pointed out by the Solicitor General, such knowledge
of the insufficiency of petitioner's funds "is legally presumed from the dishonor of
his checks for insufficiency of funds."[13]But such presumption cannot hold if there is
evidence to the contrary. In this case, we find that the other party has presented
evidence to contradict said presumption. Hence, the prosecution is duty bound to
prove every element of the offense charged, and not merely rely on a rebuttable
presumption.
Admittedly, what are involved here are postdated checks. Postdating simply means
that on the date indicated on its face, the check would be properly funded, not that
the checks should be deemed as issued only then.[14] The checks in this case were
issued at the time of the signing of the Contract to Sell in August 1989. But we find
from the records no showing that the time said checks were issued, petitioner had
knowledge that his deposit or credit in the bank would be insufficient to cover them
when presented for encashment.[15] On the contrary, there is testimony by
petitioner that at the time of presentation of the checks, he had P150,000.00 cash or
credit with Citibank.
As the evidence for the defense showed, the closure of petitioner's Account No.
845515 with Citibank was not for insufficiency of funds. It was made upon the
advice of the drawee bank, to avoid payment of hefty bank charges each time
petitioner issued a "stop payment" order to prevent encashment of postdated
checks in private respondent's possession.[16] Said evidence contradicts the prima
facie presumption of knowledge of insufficiency of funds. But it establishes
petitioner's state of mind at the time said checks were issued on August 24, 1989.
Petitioner definitely had no knowledge that his funds or credit would be insufficient
when the checks would be presented for encashment. He could not have foreseen
that he would be advised by his own bank in the future, to close his account to avoid
paying the hefty banks charges that came with each "stop payment" order issued to
prevent private respondent from encashing the 30 or so checks in its possession.
What the prosecution has established is the closure of petitioner's checking account.
But this does not suffice to prove the second element of the offense under B.P. Blg.
22, which explicitly requires "evidence of knowledge of insufficient funds" by the
accused at the time the check or checks are presented for encashment.
To rely on the presumption created by B.P. No. 22 as the prosecution did in this case,
would be to misconstrue the import of requirements for conviction under the law. It
must be stressed that every element of the offense must be proved beyond
reasonable doubt, never presumed. Furthermore, penal statutes are strictly
construed against the State and liberally in favor of the accused. Under the Bouncing
Checks Law, the punishable act must come clearly within both the spirit and letter of
the statute.[17]
While B.P. Blg. 22 was enacted to safeguard the interest of the banking system,[18] it
is difficult to see how conviction of the accused in this case will protect the sanctity
of the financial system. Moreover, protection must also be afforded the interest of
townhouse buyers under P.D. No. 957.[19] A statute must be construed in relation to
other laws so as to carry out the legitimate ends and purposes intended by the
legislature.[20] Courts will not strictly follow the letter of one statute when it leads
away from the true intent of legislature and when ends are inconsistent with the
general purpose of the act.[21] More so, when it will mean the contravention of
another valid statute. Both laws have to be reconciled and given due effect.
Note that we have upheld a buyer's reliance on Section 23 of P.D. 957 to suspend
payments until such time as the owner or developer had fulfilled its obligations to
the buyer.[22]This exercise of a statutory right to suspend installment payments, is to
our mind, a valid defense against the purported violations of B.P. Blg. 22 that
petitioner is charged with.
Given the findings of the HLURB as to incomplete features in the construction of
petitioner's and other units of the subject condominium bought on installment from
FRC, we are of the view that petitioner had a valid cause to order his bank to stop
payment. To say the least, the third element of "subsequent dishonor of the check...
without valid cause" appears to us not established by the prosecution. As already
stated, the prosecution tried to establish the crime on a prima facie presumption in
B.P. Blg. 22. Here that presumption is unavailing, in the presence of a valid cause to
stop payment, thereby negating the third element of the crime.
Offenses punished by a special law, like the Bouncing Checks Law, are not subject to
the Revised Penal Code, but the Code is supplementary to such a law.[23] We find
nothing in the text of B.P. Blg. 22, which would prevent the Revised Penal Code from
supplementing it. Following Article 11 (5)[24] of the Revised Penal Code, petitioner's
exercise of a right of the buyer under Article 23 of P.D. No. 957 is a valid defense to
the charges against him.
WHEREFORE, the instant petition is GRANTED. Petitioner Francisco T. Sycip, Jr., is
ACQUITTED of the charges against him under Batas Pambansa Blg. 22, for lack of
sufficient evidence to prove the offenses charged beyond reasonable doubt. No
pronouncement as to costs.
SO ORDERED.

[G.R. No. 105002. July 17, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DIARANGAN
DANSAL accused-appellant.
DECISION
PANGANIBAN, J.:
Appellant claims that he acted under the compulsion of an irresistible force. Because
he admits in effect the commission of a punishable act, he must prove the exempting
circumstance by clear and convincing evidence.
Statement of the Case
This appeal seeks the reversal of the December 4, 1990 Decision[1] of the Regional
Trial Court of Iligan City, Branch 2[2] in Criminal Case No. 3141 convicting Appellant
Diarangan Dansal of the crime of murder.
A complaint against appellant was filed on March 28, 1990 by INP[3] Station
Commander Cabsaran C. Azis of Matungao, Lanao del Norte. After preliminary
investigation, Provincial Prosecutor IV Felix Fajardo charged appellant with murder
on September 7, 1990 in an Information which reads:[4]
That on or about the 2nd day of March, 1990, at Matungao, Lanao del Norte,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another with 4 John
Does, who are still at large and whose case is still pending in the lower court, with
treachery, evident premeditation, taking advantage of superior strength, and with
intent to kill, did then & there willfully, unlawfully and feloniously attack, assault
and shoot one Abubacar Pagalamatan with a Garand rifle thereby inflicting upon the
latter multiple gunshot wounds which were the direct and immediate cause of his
death thereafter.
Upon arraignment, appellant with the assistance of counsel de oficio pleaded not
guilty. In due course, the trial court rendered its assailed Decision, the dispositive
portion of which reads:[5]
WHEREFORE, finding accused DIARANGAN DANSAL guilty beyond reasonable
doubt of the crime of Murder, he is hereby sentenced to suffer the penalty
of RECLUSION PERPETUA and he is hereby ordered to indemnify the heirs of
Abubakar Alamat, also known as Abubakar Pagalamatan the amount of P30,000.00,
without subsidiary imprisonment in case of insolvency, and to pay costs.
Accused is entitled in full for the period of his detention.
Hence, this appeal.
The Facts
Version of the Prosecution
The prosecution sought to establish that on March 2, 1990 in Pasayanon, Matungao,
Lanao del Norte, appellant, armed with a Garand rifle like his four (4) other
companions, fired the fatal shots which caused the death of Abubakar Alamat, also
known as Abubakar Pangalamatan.
The prosecution presented the following witnesses: Cosain Dowa, Dr. Marilyn Rico,
Amina Oticol, Panda Antalo and Timal Mosa. Their testimonies may be synthesized
as follows:
Panda Antalo testified that at three oclock in the afternoon of March 2, 1990 in
Matungao, Lanao del Norte, he and Timal Mosa were walking through a barrio road
on their way to see Mayor Asis.[6] They saw Abubakar Alamat, the victim, conversing
with five (5) persons, one of whom was appellant. However, Antalo did not
recognize appellants companions. When he and Mosa were five (5) meters away
from the group, he heard gunshots. He turned his head and noticed that smoke was
coming out of appellants rifle and empty shells were falling therefrom. The Garand
rifles of appellant and his companions were pointed at the victim who was lying on
the ground face upwards. Seven (7) shots were fired. At that time Antalo was
immobile as he was frightened. Thus, he was unable to run and take cover. After
appellant and his companions ran towards the coffee plantation, Antalo approached
the victim and discovered that the latter had sustained seven (7) wounds.[7]
Timal Mosa corroborated Antalos account. He testified that at 3:00 p.m. of March 2,
1990, he and Antalo were on their way to Mayor Asis house in Pasaupnon,
Matungao.He saw the victim, the appellant and four (4) other persons talking to one
another. Then he heard a gunshot from behind. When he turned to look, he noticed
that smoke was coming out of appellants gun and that empty shells were dropping
from it as appellant continued to fire at the victim. Appellants rifle was pointed at
the victim who had fallen on the ground. He heard seven (7) gunshots. Appellants
companions also carried Garand rifles, but Mosa concluded that these were not fired
because he did not notice any smoke from their barrels. He was not frightened.
Neither did he take cover, as he knew both the victim and the appellant. After firing
at the victim, appellant together with his four companions fled towards Mayor Asis
coffee plantation. He and Antalo approached the victim, whom they found already
dead. Thereafter, they reported the shooting to the victims wife.[8]
Cosain Dowa, a Rural Sanitarium Inspector of the Health Office of Matungao, Lanao
del Norte, testified that on March 5, 1990 he prepared the victims Certificate of
Death (Exh. A). Although his main duty was to inspect food establishments,
construct barangay toilets, and assist in watershed constructions in the
municipality, he also helped the health officer in the preparation of death
certificates.[9] When the body of the victim was brought in, he observed gunshot
wounds on his right foot, right thigh and right breast.The right knee was
distorted. There was a bullet hole at the victims back which he believed was the
entry point leading to the gaping wound on the breast.[10]
Dr. Marilyn Rico testified that she was the Rural Health Officer of Matungao, Lanao
del Norte. She signed Abubakar Alamats Certificate of Death (Exh. A-2)[11] which was
prepared by Dowa.
Amina Oticol, the widow of the victim, testified that, around 3:00 p.m. of March 2,
1990, she was at their house in Panta-on, Matungao, Lanao del Norte. Antalo and
Mosa came and informed her that appellant killed her husband. She had her
husbands corpse brought to their house. Her husband was buried in Panta-on,
Matungao, Lanao del Norte. She incurred expenses for the burial in the amount
of P15,000.00, but she asked for P100,000.00 as compensation therefor.[12]
Version of the Defense
Appellant was the lone witness for the defense. He testified that on March 1, 1990,
he went to Tagolo-an, Lanao del Norte to visit his elder sister Saramina Dansal. At
his sisters house, Mimbalawang Dorado, together with his sons Macod, Talente and
Talentes son Usop, all surnamed Dorado, seized appellant and brought him to their
house at Tongkol, Tagolo-an, Lanao del Norte for reasons undisclosed to him.[13]
The next day, March 2, 1990 at 7:00 a.m., they all left Tagolo-an for Matungao and
arrived there at 11:00 a.m. He was given a Garand rifle that was not
serviceable. They proceeded to the victims house at Panta-on, Matungao, Lanao del
Norte. They asked the victim to come out and then they fired their guns at him as
soon as he appeared.Appellant said that the Dorados killed the victim to avenge the
killing of one of Mimbalawags sons named Ali by a certain Salonga, the victims
paternal cousin.
After shooting the victim, the Dorados allegedly aimed their guns at appellant and
told him to run away. As he was also related to the victim, the latters mother being
his paternal aunt, appellant wanted to shoot the Dorados. Finding that his rifle was
not operational, he fled with the Dorados. Thereafter, they rode a truck to
Karomatan. They left their guns at the house of Mimbalawags sister in Bangko, near
Matungao.[14] He went home and afterwards told the mayor of Tagolo-an that the
Dorados killed his cousin. He was subsequently summoned and detained by the
mayor of Panta-on.[15]
Ruling of the Trial Court
As stated earlier, the court a quo convicted appellant of murder. It gave credence to
the testimonies of the prosecution witnesses. It disbelieved appellant in view of the
absence of any improper motive on the witnesses part to testify wrongly against
him.
The trial court noted that appellant and the four (4) Dorados were all armed with
Garand rifles; that they immediately fired their guns at the victim as he came out of
his house; and that the victim was not in a position to defend himself. From these
facts, it concluded that the offenders consciously and deliberately adopted the
particular means, method or form of attack employed by them to ensure the
accomplishment of their purpose with impunity. Thus, treachery, abuse of superior
strength and evident premeditation were appreciated in the conviction of the
appellant.
Hence, this appeal.
Assignment of Errors
Appellant through the Public Attorneys Office ascribes the following errors to the
trial court:
I
The lower court erred in not finding that accused-appellants presence in the crime
scene was under a compulsion of an irresistable (sic) force.
II
The lower court erred in considering the qualifying circumstances of treachery and
abuse of superior strength.[16]
In a nutshell, appellant invokes the exempting circumstance of compulsion under an
irresistible force under paragraph 5, Article 12 of the Revised Penal Code. Further,
he argues that, if at all, he should be convicted only of homicide because the
prosecution failed to prove beyond reasonable doubt the qualifying circumstances
of treachery and/or abuse of superior strength.
The Courts Ruling
The appeal is bereft of merit.
Preliminary Issue: Credibility of the Prosecution Witnesses
Without specifically raising it as an error, appellant nonetheless laced his brief with
attacks on the credibility of the prosecution witnesses. Hence, we shall dispose of
this matter.
Well-settled is the rule that appellate courts will generally not disturb the findings
of the trial court on the credibility of witnesses.[17] Such findings are conclusive
upon the Supreme Court in the absence of any showing that the trial court has
overlooked, misunderstood or misapplied some fact or circumstance of weight and
substance that would have affected the result of the case.[18] We have carefully
scrutinized the records of this case and the arguments of appellant, and we have
found no reason to reverse the findings of the trial court.
The two prosecution eyewitnesses positively and clearly identified appellant as the
assailant who alone fired his rifle at the victim. Their testimonies corroborated each
other.Antalo testified thus:[19]
PROSECUTOR BADELLES:
q Now, in the afternoon of March 2, 1990, around 3:00 oclock more or less, did (sic)
you remember where were you?
a I can remember, sir.
q Where were you?
a I was on my way to see Mayor Asis that day, sir.
q While on your way to Mayor Asis, were you walking, riding or what?
a I am walking with Timal, sir.
xxx xxx xxx
q While on your way to the house of Mayor Asis in that afternoon of March 2, 1990,
with Timal, did you notice anything along the road?
a Yes, there was.
PROSECUTOR BADELLES:
q What was that you noticed?
a While we are on our way to the Mayors house, we saw Abubacar Alamat that he
had 5 companions and I recognized one of them. (Witness pointing to the accused
Abubacar Pagalamatan [sic])
q Now what were they doing when you saw them?
a They were having conversation, sir.
q Now, you said you saw them, now how far were you [from] the groups?
a About 5 meters far, sir.
q Were they in front of you or at the back of you when you saw them first?
a At my back, sir.
q And then after that was there any unusual [event] that happened?
a There was, sir.
q What was that unusual thing that happened?
a I heard a shound (sic) of gun burst sir.
q What did you do when you heard that gun burst?
a I glanced at them and I noticed that the gun of Diarangan Dansal the tip of his gun
has smoke and I also noticed empty shells falling down.
q Now how far were you when you saw Diarangan Dansal with the tip of his gun
having smoke and the empty shells falling down from his gun?
a About 5 meters, sir.
q Now, how many burst all in all that you heard?
a Seven burst, sir.
q Now you said that you saw empty shells falling down from the gun of Diarangan
Dansal, how many empty shells that you saw that fell down from the gund (sic) of
Diarangan Dansal?
a I have not seen the others sir.
q By the way what was gun of Diarangan Dansal hold that time? (sic)
a Garand, sir.
q When you saw Dirangan (sic) Dansal holding a Garand and when you saw that tip
of his gun smoking, to was direct (sic) that his gun pointing?
a Pointing to Abubacar Pagalamatan, sir.
q Now how about Abubacar Pagalamatan at the time when you saw him holding a
gun which was pointed to Abubacar Pagalamatan with smoke coming out from the
tip of the gun and the empty shells falling down, what was the relative position of
Abubacar Pangalamatan to Diarangan Dansal?
a Abubacar Pangalamat was lying down, his face upward, sir.
q Now, after you heard those 7 burst of a gun, what did you do next?
a I was immovilized (sic) sir.
q How about Diarangan Dansal and his companions, what did he do after the 7 burst
you heard?
a They were running toward the coffee trees, sir.
Mosa corroborated Antalos account in this wise:[20]
PROS. BADELLES:
Q On or about March 2, 1990 at 3:00 in the afternoon, can you remember where
were you?
xxx xxx xxx
A We were then going to the house of Asis at Pasayano, Matungao.
Q You used the word ()we() who was your companion at that time?
A Panda Andalo.
Q While on your way to the house of Asis at Pasayano Matungao, along the way did
you see any person?
xxx xxx xxx
A I saw Diarangan Dansal and Abubakar Pangalamatan.
Q They have compnaion (sic) if any at that time?
A Yes, sir, I did not recognize him.
Q How many of them?
A Four (4).
xxx xxx xxx
Q Now waht (sic) was the position of these persons in relation to your position at
the time you saw them?
A I was ten (10) meters from them and they are talking to each other.
Q Were they in front of you or back of you?
A They are at my back.
Q Now, when you were about ten (10) meters from them, this ten (10) meter at your
back were there anything happened unusual (sic)?
xxx xxx xxx
A I heard gun shot and then I looked back.
Q Towards what direction after hearing the shot?
A I looked back at them.
Q Who was ()them() that you are referring to?
A Abubakar Pangalamatan and Diarangan Dansal.
Q And when you look back at them what did you see?
A I saw firearm of iarangan (sic) Dansal and the firearm was smoking and the empty
shells were coming out from the rifle.
Q Towards what direction was the fireamr (sic) of Diarangan Dansal pointed to
when see him at that time?
A The firearm was pointed to at Abubakar Pangalamatan.
Q When you look back at them and saw Diarangan Dansal pointed his firearm to
Abubakar Pangalamatan what was then the position of Abubakar Pangalamatan?
A when the firearm exploded, Abubakar Pangalamatan fell down.
xxx xxx xxx
Q By the way how many shots that you hear (sic)?
A Seven shots.
Q The first shots that you hear was immediately, was prior to the looking back
where Abubakar Pangalamatan and Diarangan Dansal were located (sic)?
A Yes, sir.
Q How about the second shots, when did you hear it?
A As I look back.
Q Did you see who fire (sic) the shot?
A Diarangan Dansal.
Q How did you know that it was Diarangan Dansal who firedthe (sic) second shot?
A Because there was a smoke coming from his gun and the empty shells coming
from his rifle.
Q In the second shot, was shotting (sic) by Diarangan Dansal to what direction was
the firearm of Diarangan Dansal point to? (sic)
A It was he who was still pointing his gun to Pangalamatan.
Q How about the third shot, when did you hear it?
A Well, I suspect that it was still at the gun of Diarangan Dansal and I heard that the
same gunshot coming from the guaran (sic) of Diarangan Dansal.
Q How did you know that the same shot was coming from the same barrel of
Diarangan Dansal?
A Because smoke was coming out from the barrel of his gun.
Q And the 4th the 5th, the 6th and the seven (7) shots you hear it when?
A Still from the firearm of Diarangan Dansal.
Q How do you know that it was coming from the firearm of Diarangan Dansal?
A Because the smoke was still coming out from his gun and the empty shell coming
from his gun.
Q How about the companion of Diarangan Dansal was they arm (sic) at that time?
A Yes, sir.
Q What firearm?
A Garand.
Q All the while when you hear the gunshots and all these six (6) successive gun
shots and saw Diarangan Dansal shot what did the companion of Diarangan Dansal
do?
A They were around Diarangan Daniel holding their gun.
Q Did you notice if they fired their gun?
A No, sir.
Q How did you know that they did not shot their firearm?
A Because there was no smoke coming from their firearm.
Q After the 7th shot, do you know what the group of Drainage Daniel (sic) did?
A They Fled (sic).
Q Towards what direction?
A Towards the coffee plantation.
Both testimonies are straightforward, clear and consistent and they point
categorically to appellant as the perpetrator of the crime.
Furthermore, appellant has not alleged, much less proven, ill motive on the part of
said witnesses to accuse appellant of such a grave offense. In his brief, appellant
admits that he cannot discern any reason for Antalo and Mosa to testify falsely
against him.[21] In this light, we cannot fault the court a quo for holding that:[22]
The court is constrained to believe that the testimonies of witnesses Panda Antalo
and Timal Mosa are credible for failure by the defense to show that said witnesses
were prejudiced against the accused or that said witnesses had an existing improper
motive in imputing to the accused the crime for which he is charged. When there is
no evidence showing that the witnesses are prejudiced against the accused, the
witnesses would not have imputed to the accused the commission of such a grave
offense as that of murder if it was not true that he was really guilty thereof (People
vs. Ali, 29 SCRA 756). The absence of evidence as to an improper motive actuating
the principal witnesses for the prosecution strongly tends to sustain the conclusion
that such improper motive did not exist, and that their testimonies are worthy of full
faith and credit (People vs. Saroah, 5 SCRA 385; People vs. Valera, 5 SCRA 910).
The defense assails the testimonies of Prosecution Witnesses Antalo and Mosa
because their conduct during the commission of the crime was allegedly contrary to
common experience. Appellant finds it unlikely for said eyewitnesses to keep on
standing despite the burst of gunfire as if x x x watching a movie in the making and
to remain unmoved by the violent shooting incident. Ordinarily, a man in a similar
situation would either take cover or run for safety. Because the eyewitnesses did not
so conduct themselves, appellant concludes that their testimonies were
preposterous and untrue.
We disagree. Antalo said that he was so scared of what was happening that he could
not move, while Mosa admitted that he was afraid but he did not take cover, as he
knew both the appellant and the victim. Their reactions, although the exact opposite
of each other, are valid and probable. Taking cover or running away is not the only
natural reaction possible under the circumstances. There is no standard form of
human behavioral response to a strange, startling and frightful event, and there is
no standard rule by which witnesses to a crime must react.[23]
First Issue: Exempting Circumstance Insufficiently Proved
Appellant claims exemption from criminal liability under Article 12, paragraph 5 of
the Revised Penal Code, because he allegedly acted under the compulsion of an
irresistible force. He allegedly joined the armed Dorados against his will because of
fear for his own safety. He claims in his brief that the Dorados were guarding him so
closely that escape was risky and protection by lawfully constituted authorities was,
at the moment, out of reach.[24]
We cannot sustain such defense. A person who invokes the exempting circumstance
of compulsion due to irresistible force must prove his defense by clear and
convincing evidence.[25] He must show that the irresistible force reduced him to a
mere instrument that acted not only without will but also against his will.[26] The
compulsion must be of such character as to leave the accused no opportunity to
defend himself or to escape.
The duress, force, fear or intimidation must be present, imminent and impending;
and it must be of such a nature as to induce a well-grounded apprehension of death
or serious bodily harm if the act is not done. A threat of future injury is not
enough.[27] A speculative, fanciful or remote fear,[28] even fear of future injury,[29] is
insufficient.
In this case, appellant failed to show such compulsion. In his testimony, he did not
mention that the Dorados physically or morally threatened to kill or hurt him. He
did not even make any attempt to resist. He simply took for granted that they would
kill or hurt him if he did not follow them. No evidence was presented to establish
how, if at all, he was compelled to join the Dorados in killing the victim. In other
words, appellant failed to prove that the Dorados made a real and imminent threat
on his life or limb sufficient to overcome his free will.
Indeed, the Court finds no acceptable basis for appellants assertion that he was
compelled and intimidated by the Dorados. Even without him, the Dorados could
have easily carried out the crime, if such was their intention. If we believe appellants
story, there was no need for the Dorados to mortally threaten appellant to join
them. Besides, forcing appellant, a relative of the victim, to join them complicated
rather than facilitated their criminal endeavor. With the appellant present among
them, they would have had to guard themselves from possible resistance and double
cross in case he did not consent to their plan. Furthermore, it would have been
highly illogical for the Dorados to force appellant to take part in their crime, only to
give him an unserviceable rifle.[30]
Moreover, his story does not inspire belief for reasons other than the obvious one
that it is uncorroborated. According to appellant, he was taken against his will from
his sisters house in Tagolo-an the day before the commission of the crime. It is
strange why his sister was not presented as witness to corroborate his
account. Even the mayor of Tagolo-an, to whom he reported that he had been forced
to participate in a killing, could have testified in his favor. But said official, who
could have injected credence to his defense, was not presented to corroborate his
testimony. The non-presentation of these witnesses tends to show that they would
not have corroborated appellants allegations had they testified.
Second Issue: Qualifying Circumstances
The trial court appreciated the aggravating circumstances of treachery, evident
premeditation and superior strength.
The evidence of the prosecution, however, adequately established only
treachery. Treachery is appreciated when a frontal attack is directed at an unarmed
victim who is totally unaware of and unprepared for said assault.[31] There is
treachery where the attack on an unarmed victim, who has not given the slightest
provocation, is sudden, unexpected and without warning.[32] According to
Prosecution Witness Mosa, the victim, the appellant and his companions were
talking to one another prior to the shooting. It would have been impossible to hide
Garand rifles from someone who was so close. Thus, it is safe to assume that the
victim knew that appellant and his companions were carrying them. If the victim
suspected that they would use those rifles to commit the crime, then he would have
avoided them. But instead, the victim stayed and spoke with them. The victim,
therefore, had no idea that he was going to be shot by appellant who, after all, was
his relative. Even if he eventually did come to know that appellant intended to shoot
him, he -- being alone and unarmed -- could not have defended himself against all
five of them.
Abuse of superior strength, on the other hand, was not established, as there was no
testimony to the effect that appellant and his companions took advantage of their
collective strength in order to kill the victim.[33] Witness Mosa even said that only
appellant fired at the victim. Mere superiority in number after all is not necessarily
indicative of this aggravating circumstance.
The prosecution also failed to establish evident premeditation. For this qualifying
circumstance to be appreciated, there must be a lapse of sufficient time to afford full
opportunity for meditation and reflection that would allow the conscience of the
actor to attempt to overcome the resolution of his will.[34] But the prosecution was
unable to establish this time element as its evidence dealt merely with the
circumstances of the actual shooting itself.
WHEREFORE, premises considered, the assailed Decision is hereby AFFIRMED with
modification as regards the civil indemnity which is hereby INCREASED to fifty
thousand pesos (P50,000.00) in line with current jurisprudence.[35]
SO ORDERED.
G.R. No. 89684 September 18, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GERARDO SAZON, alias "INSIK," accused-appellant.

The Solicitor General for plaintiff-appellee.

Benjamin P. Sorongon for accused-appellant.

The fact that appellant told the deceased that he would kill him and that two days later, after
the deceased passed by the store where appellant and Altejos were drinking softdrinks the
latter followed the former and inflicted the fatal blows, cannot adequately sustain a
conclusion of premeditated killing.

To justify its attendance, the prosecution must prove (1) the time when the offender
determined to commit the crime, (2) an act manifestly indicating that the culprit has clung to
his determination, and (3) a sufficient lapse of time between the determination and the
execution to allow him to reflect upon the consequences of his act. 22

In the case at bar, the first and second elements are lacking. The angry outburst of appellant
in that incident of September 15, 1983, warning the victim that the former would kill him,
does not convince us that, under the circumstances therein, appellant as of that time had
already decided to kill the victim. A homicidal premeditation is studiedly conceived and not
impulsively adopted just like that and, worse, publicly announced. It was more of a
spontaneous expression of resentment or bravado on the part of appellant.

REGALADO, J.:

For the death of Wilfredo Longno, alias, "Inday," on September 17, 1983 at Barangay Progreso, Lapuz, La Paz, Iloilo City, herein
accused-appellant Gerardo Sazon, alias "Insik," and Cornelio Altejos, alias "Toto," were charged with murder before the Regional
Trial Court of Iloilo, 1 in an amended information dated October 18, 1983.2 However, only herein accused was arraigned, and
pleaded not guilty, since Cornelio Altejos was not apprehended and has since remained at large.

After trial, appellant was found guilty and sentenced to serve the penalty of reclusion
perpetua. He was further ordered to pay the heirs of the deceased the amount of P16,628.40
representing hospital bills, expenses for the coffin, tomb, wake and attorney's fees, and
P30,000.00 as indemnity for the death of the victim.

The antecedental facts which led to the filing of the criminal action below are herein under
set forth as synthesized by the court a quo from the testimonies of the witnesses, 3 and as
clarified and amplified by us from the transcripts of the notes of the hearings.

On September 15, 1983, in the barangay aforementioned, a certain Ernesto Romualdez was
accosted by appellant near the barangay hall for allegedly circulating the rumor that
appellant and his companions were engaged in stealing. Upon confrontation, appellant
boxed Romualdez which caused the latter to fall. Wilfredo Longo, who was then present at
the scene, approached and helped the fallen Romualdez and pushed appellant away. This
apparently angered appellant who, in his native dialect said "Andam ka lang Inday kay
patyon ta guid," ("Watch out Inday for I will kill you") to which Longno retorted, "Just do it."
Two days later, or on September 17, 1983, at about 8:00 o'clock P.M., appellant and his
cousin, Cornelio Altejos, were drinking softdrinks at the shire of Gloria Aposaga when
Longno passed by. Thereupon, appellant and Altejos left their softdrinks half-assumed and
followed Longno.

Longno eventually reached the bench near the public faucet where the group of Massulini
Dullete, Samuel Canoso and Nathaniel Ramos were sitting. He joined the group in their
conversation by saying, "Upon ako dira." ("I'll go with what you say."). Shortly thereafter,
appellant and Altejos arrived and appellant accosted and pointed a gun at Longno, saying,
"Maano ka?" ("What are you going to do?"). Longno then faced appellant and said, "Brod,
tiruha lang." ("Brod, just shoot.")

Apparently irked by the response, appellant fired the gun, hitting Longno in the left forearm.
Dullete, Canoso and Ramos then scampered for safety as appellant and the wounded
Longno grappled for the gun. It was while the two were thus struggling that Altejos stabbed
Longno in the chest, after which both appellant and Altejos ran away.

Longno then came out of the footwalk shouting, "Tay tiniro ako ni Insik, binuno ako ni Toto."
("Father, I was shot by Insik and stabbed by Toto."). He was able to run about thirty (30)
meters before he fell. His father, Julio Longno, ran to his son who was then lying sprawled on
the ground. Rushed to the St. Paul's Hospital, Wilfredo Longno died. Later, it was
established that the cause of death was hemorrhage, secondary to stab wound.

Appellant's version of the incident, however, differs. He admits having shot Longno but
pleads self-defense. He claims that on September 17, 1983, he left the house of his father-
in-law at about 8:00 o'clock P.M. with his cousin, Altejos. The latter had asked for help to
have a .22 caliber revolver repaired and appellant was taking the revolver to a policeman
friend of his. On their way, appellant saw Longno from a distance. Upon his approach,
Longno allegedly said, "Insik, I heard that you are not afraid of me. Maybe you want to be
taught a lesson." 4

Appellant claims that the deceased had a revolver tucked in his waist and was about to draw
the same. He, therefore, parried the gun but it fired hitting one of appellant's left fingers
which was later amputated. It was then that appellant pulled out his gun and shot Longno in
the forearm. Appellant and Longno afterwards grappled for the gun. Altejos allegedly tried to
separate appellant and Longno but he was brushed aside by the latter. In the course of their
struggle, Altejos then shouted to appellant, "I stabbed Inday, run," and so he and Altejos ran
away. 5

Appellant, in his brief, makes the following assignment of errors:

1. The trial court erred in not acquitting the accused-appellant for having
acted in complete self-defense.

2. The trial court erred in convicting the accused-appellant of the crime of

murder and in imposing the penalty of reclusion perpetua when the
prosecution has not established by competent evidence the existence of
conspiracy and the presence of the aggravating circumstances of evident
premeditation and abuse of superior strength. 6

Appellant's version does not inspire credence. Well-entrenched is the rule that where the
accused invokes self-defense, it is incumbent upon him to prove by clear and convincing
evidence that he indeed acted in defense of himself. He must rely on the strength of his own
evidence and not on the weakness of the prosecution. For, even if the prosecution evidence
is weak, it could not be disbelieved after the accused himself had admitted the killing. 7

It is a statutory and doctrinal requirement that for the justifying circumstance of self-defense,
the presence of unlawful aggression is a condition sine qua non. There can be no self-
defense, complete or incomplete, unless the victim has committed an unlawful aggression
against the person defending himself.8

In the present case, the burden of evidence having been shifted, we hold that the defense
failed to establish the primary element of unlawful aggression on the part of the victim and,
therefore, the plea of self-defense must fail. The narrations of the sequence of events by the
accused, and by the lone alleged eyewitness for the defense, Jose Randera, are
unconvincing primarily on account of their inherent inconsistency and conflict with each
other.

Again, the circumstance that appellant and Altejos were by chance at the store when the
victim passed by cannot be taken as manifestly indicating that appellant had clung to his
determination to kill the victim. No evidence was presented to show that appellant purposely
waited there for the deceased. Nor was there any showing that the deceased frequently
passed by the same route as to warrant and explain appellant's waiting for the former at that
place. Indeed, that the meeting may have been purely accidental is not a remote possibility.
We are more inclined to believe that it was the belligerent and defiant demeanor of the victim
when confronted by appellant near the public faucet that precipitated assault.

Under such considerations and there being no other evidence to prove that the death of the
victim was the result of meditation, calculation or reflection, evident premeditation cannot be
appreciated to qualify the killing to murder. 23The circumstances qualifying or aggravating the
act must be proved in an evident and incontestable manner. They must be proved as
conclusively as the acts constituting the offense.24 Thus, for the same reason, the
aggravating circumstance of abuse of superior strength cannot be appreciated in this case.
Superior strength may aggravate or qualify a crime, only if it is clearly shown that there was
deliberate intent to take advantage of it.25 In the absence of any evidence to show that the
accused purposely sought to use their superior strength to their advantage in the present
case, a finding to that effect by the trial court cannot be sustained.

Appellant on cross-examination testified as follows:

Q How far were you from Inday Longno when he allegedly

fired a shot at you?

A One (1) meter.

Q At one (1) meter distance did (sic) you not able to

recognize what kind of a gun was that allegedly used by
Inday Longno?

A No, sir, at first I only saw the handle of the gun and I did not
see the body of the gun.
 Q But you can recognize between a pistol and a revolver?

A Yes, sir.

Q What was that allegedly used by Inday Longno, was that a

pistol or a revolver?

A Because immediately after he said those words 'Maybe you

want to learn a lesson he immediately drew his gun and I was
able to parry.

xxx xxx xxx

Q When you fired at Inday Longno hitting him on his left arm
near the elbow, was he still holding that gun he used in
shooting you hitting you at the left palm?

A No, sir, because of too much force the gun fell.

Q Did you not pick up the gun?

A No, sir.9

On the other hand, defense eyewitness Jose Randera stated in his testimony:

ATTY. SORONGON: (To the witness)

Q While Wilfredo Longno alias Inday was pointing a gun at

Gerardo Sazon alias Insik, what was Gerardo Sazon doing?

WITNESS JOSE RANDERA:

A When Inday said something, Insik Sazon brushed aside the

gun and the gun fired.

xxx xxx xxx

Q You said, that Wilfredo Longno alias Inday pointed a gun at

Gerardo Sazon alias Insik, with what hand was he holding
that gun when he was pointing that gun to Gerardo Sazon?

WITNESS JOSE RANDERA:

A His right hand.

ATTY. SORONGON (To the witness)

Q You said that Gerardo Sazon brushed aside the gun which
was being pointed to him, what hand did Gerardo Sazon used
(sic) in brushing that gun?
 A His left hand.

Q When Gerardo Sazon brushed aside the gun pointed to

him, what else if any did he do?

A Insik also drew a gun and shot Inday,

COURT: (To the witness)

Q What hand?

A Right hand. He drew a gun with his right hand and shot
Inday.

xxx xxx xxx

ATTY. SORONGON (To the witness)

Q You said that there was a brushing, who was brushing

aside and who was brushed aside?

WITNESS JOSE RANDERA:

Q Inday parried Cornelio Artejos (sic).

COURT: (To the witness)

Q And, what happened next?

Cornelio Artejos (sic) pulled out a knife and stabbed Inday.

Q This happened when Inday was already hit by Sazon?

A Yes, sir.

ATTY. SORONGON (To the witness)

Q When Cornelio Artejos (sic) stabbed Wilfredo Longno alias

Inday, what was Gerardo Sazon and Wilfredo Longno doing if
they were doing anything.?

A They were graffling of (sic) the weapon.

Q You are referring to whose weapon they were graffling (sic)

at that time?

A Inday's weapon.10

The testimonies aforequoted reveal an inconsistency on the matter of the gun for which
appellant and the victim supposedly grappled. While appellant claimed that the victim's
weapon fell to the ground, witness Randera stated that appellant and the victim still grappled
for the latter's gun. The latter statement is itself difficult to imagine since appellant at that
precise moment was also allegedly holding with his right hand the gun which he used in
shooting Longno.

It is necessary to stress that such inconsistency cannot be considered a minor detail since
the homogeneity of the answers to the inquiry could very well have established the existence
of not only a single gun. Had this prevarication not been exposed, said testimonies could
have bolstered the defense theory that the victim himself carried a gun which he used to
assault the appellant and thus establish the element of unlawful aggression contrived by the
defense.

Furthermore, the credibility of witness Randera is shattered by this finding of the trial court
which is sustained by the evidence:

The testimony of security guard Jose Randera deserves scant consideration

not only because he admitted that he was one of those threatened by the
deceased Wilfredo Longno but also because he wilfully falsified the truth
when he testified that the deceased was shot and hit by the accused on the
body and that he saw blood come out just below the right breast of the
deceased. The physical evidence in this case showed that there was no
wound on the right breast of the deceased nor on any part of his body. The
gunshot wound sustained by the deceased was only on his left forearm.
Considering that he testified that there were no other persons there during
the incident except the accused, the deceased and Cornelio Altejos when the
overwhelming weight of evidence is that there were a lot of other people
during the incident (this) showed that this witness had small regard for the
truth. 11

Coming back to appellant's representations in court, his vacillation as to what he allegedly

did after Altejos stabbed the victim is another instance which renders his version highly
suspect. While stating on direct examination that he ran to the main road, 12 he claimed on
cross-examination that he only walked a short distance and then went to the hospital upon
seeing that his hand was wounded. 13 The latter statement is itself inconsistent with his earlier
declaration during the same proceeding that he was brought by a policeman to the
hospital. 14 This irresolution on the part of the appellant was obviously to avoid any imputation
of guilt against him arising from his flight. 15

At any rate, unlawful aggression on the part of the victim is further negated by the physical
evidence in the case. Again, we quote the trial court with approval:

The testimony of the accused Gerardo Sazon that the deceased was armed
with a gun and fired at him is not borne out by the physical evidence in this
case. The paraffin test conducted on the cadaver of the deceased showed
that the hands of the deceased were negative for gunpowder residues
indicating that he did not fire a gun during the incident. The other parts of his
body like his forearm and his abdomen bore strong traces of gunpowder
residues because of the burst of the gun of the accused. The court is
convinced beyond reasonable doubt that there was only one gun during the
incident and that the gun belonged to and/or was used by the accused
Gerardo Sazon. That a part of one of his fingers was blown off at very close
range, according to Dr. Ely Canja strongly indicated that the accused
 accidentally hit his finger when he and the deceased grappled for the
possession of the gun. 16

In contrast, appellant was found positive for the presence of gunpowder residues (nitrates).
While the presence or absence of nitrates cannot indeed be considered conclusive proof that
one has or has not fired a gun, the following testimony on direct examination by prosecution
witness Zenaida Sinfuego a forensic chemist whose expertise on the matter was sufficiently
established, yields this verification:

Atty. E. Original:

Q Now, have you conducted also a paraffin examination on

the person of Wilfredo Longno?

COURT:

Q On the cadaver?

Atty. E. Original:

Q On the cadaver?

A Yes, Sir.

Q Have you brought with you the result of that examination?

A Yes, Sir.

Q Now I have here a carbon original of Chemistry Report No.

C-200-83, result of the paraffin test on the cadaver of Wilfredo
Longno, please compare this carbon original to the original
copy in your possession whether it is the same?

A The same.

xxx xxx xxx

Q This report says specimen submitted, one pair of paraffin

casts taken from the left and right hands of the cadaver of
one Wilfredo Longno, one piece of paraffin cast taken from
left forearm of same subject and one piece paraffin last taken
from the left side of the abdomen. Purpose of laboratory
examination: to determine the presence of gunpowder
residues (nitrates) on the above-mentioned specimens.
Findings, cast from hands-negative for the presence of
gunpowder residues (nitrates). Cast from forearm-positive for
the presence of gunpowder residues (nitrates) in the 1 1/2 in,
2 1/2 in, 3 in, and 4 in radius. Cast from the left side of the
abdomen-positive for the presence of gunpowder residues
(nitrates) in the center and in the 1 and 2 in radius. In the
layman's language Mrs. Sinfuego, will you please explain to
the Honorable Court these findings 1, 2 and 3?

A Casts from the hands, negative for the presence of

gunpowder residues that means that, no blue specks were
found in the hands of the cadaver.

COURT:

Q Before we go on, what is the implication when the finding is

negative?

A Probably, the subject never fired a gun.

Q Within what time-span?

A The gunpowder will stay only within three days.

Q When was this examination conducted?

A Last September 18,1983.

Q Now before we go on, on that Chemistry Report which has

been marked as Exhibit 'D' regarding the paraffin test
conducted on the right hand of the accused Gerardo Sazon,
your finding there states, positive for gunpowder residues,
what is the implication?

A The implication states positive, that Sazon have (sic) fired a

gun.

Q Within what time-span?

A Within three days.

Q Within three days?

A Within three days.

Q From the examination?

A Three days from the subject firing of a gun.

Q And when was the examination conducted?

A Last September 19,1983, Your Honor.

Q September?

A Nineteen.
 Q So he could have fired a gun on September 17,1983?

A I think that depends, Your Honor on the requesting party.

Q I am asking you if it was possible that he fired a gun which

left the powder burns, was it possible that he fired a gun on
September 17?

A Yes, Your Honor. 17

On cross-examination, Sinfuego further testified as follows:

Q Is it possible for a person who has not fired a firearm and

could be (sic) positive for nitrates?

A Yes, Sir.

Q In what instance?

A For example, if he is near to the person firing a gun it is

possible that it was carried by the wind.

Q So that is the only case wherein you find nitrates on the

person who has not fired a gun?

A Also from the fertilizer.

Q You mean, a person handling fertilizers could also be

positive for nitrates?

A Yes, Sir but we have to consider also the time of reaction,

from contaminance (sic) for the nitrates will take effect
between two to three minutes.

COURT:

Q Can you determine on your examination whether the

nitrates found was (sic) the nitrates left by gunpowder
residues or by fertilizer can you distinguish that?

A Yes, Sir.

Q And this (sic) nitrates found on the hands of the accused,

could you determine where did it (sic) come from?

A Gunpowder residues. 18

Parenthetically, it is true that the bad moral character of the offended party may be proven in
evidence to establish in any reasonable degree the probability of the offense charged, 19 e.g.,
the quarrelsome nature of the victim may tend to establish that he started the unlawful
aggression. Nonetheless, such evidence, seeking to establish as it does only a probability,
cannot prevail over facts sufficiently proven by the prosecution during the trial belying such
aggression. These observations find application in the instant case where the defense
presented and now argue on character evidence consisting of criminal charges involving
minor offenses which had been filed against the deceased, but not one of which resulted in
conviction and were in fact dismissed except for one case which was sent to the archives. 20

Obviously, whether or not appellant acted in self-defense is essentially a question of fact.

Being so and in the absence of any showing that the Court a quo failed to appreciate facts or
circumstances of weight and substance that would have altered its conclusion, the court
below, having seen and heard the witnesses during the trial, is in a better position to
evaluate their testimonies. No compelling reason, therefore, lies for this Court to disturb the
trial court's finding that appellant did not act in self-defense. 21

The Court, however, holds that appellant, albeit guilty, can only be convicted of homicide and
not murder. The trial court correctly held that the killing was not accompanied by treachery.
It, however, ruled that there was evident premeditation on the part of appellant. We find the
records sorely wanting in evidence to support the latter conclusion.

The fact that appellant told the deceased that he would kill him and that two days later, after
the deceased passed by the store where appellant and Altejos were drinking softdrinks the
latter followed the former and inflicted the fatal blows, cannot adequately sustain a
conclusion of premeditated killing.

To justify its attendance, the prosecution must prove (1) the time when the offender
determined to commit the crime, (2) an act manifestly indicating that the culprit has clung to
his determination, and (3) a sufficient lapse of time between the determination and the
execution to allow him to reflect upon the consequences of his act. 22

In the case at bar, the first and second elements are lacking. The angry outburst of appellant
in that incident of September 15, 1983, warning the victim that the former would kill him,
does not convince us that, under the circumstances therein, appellant as of that time had
already decided to kill the victim. A homicidal premeditation is studiedly conceived and not
impulsively adopted just like that and, worse, publicly announced. It was more of a
spontaneous expression of resentment or bravado on the part of appellant.

Again, the circumstance that appellant and Altejos were by chance at the store when the
victim passed by cannot be taken as manifestly indicating that appellant had clung to his
determination to kill the victim. No evidence was presented to show that appellant purposely
waited there for the deceased. Nor was there any showing that the deceased frequently
passed by the same route as to warrant and explain appellant's waiting for the former at that
place. Indeed, that the meeting may have been purely accidental is not a remote possibility.
We are more inclined to believe that it was the belligerent and defiant demeanor of the victim
when confronted by appellant near the public faucet that precipitated assault.

Under such considerations and there being no other evidence to prove that the death of the
victim was the result of meditation, calculation or reflection, evident premeditation cannot be
appreciated to qualify the killing to murder. 23The circumstances qualifying or aggravating the
act must be proved in an evident and incontestable manner. They must be proved as
conclusively as the acts constituting the offense.24 Thus, for the same reason, the
aggravating circumstance of abuse of superior strength cannot be appreciated in this case.
Superior strength may aggravate or qualify a crime, only if it is clearly shown that there was
deliberate intent to take advantage of it.25 In the absence of any evidence to show that the
accused purposely sought to use their superior strength to their advantage in the present
case, a finding to that effect by the trial court cannot be sustained.

Finally, the fact that appellant did not inflict the mortal wound upon the deceased is of no
moment, since the existence of conspiracy was satisfactorily shown by the evidence. The
coordinated acts of appellant and Altejos of immediately following the victim and jointly
confronting him thereafter reveal a concordance and unity of thought which resulted in the
encounter. The circumstances that after the accused shot the victim in the forearm and,
while he and the victim were grappling for appellant's gun, Altejos stabbed the victim to
death, indicate closeness and coordination of their action geared towards a common
purpose, that is, to kill the victim. 26 Proof of a previous agreement to commit the crime is not
absolutely essential to establish a conspiracy. It is sufficient that the accused be shown to
have acted in concert pursuant to the same objective, 27 as such circumstance is invariably
indicative of a conspiratorial agreement.

It bears mention, at this point, that while we have ruled out evident premeditation in the case,
this does not negate the existence of a conspiracy. True, conspiracy generally involves
evident premeditation, but this circumstance requires for its raison d' etre a sufficient time in
a juridical sense for the accused to meditate and reflect on the consequences of his intended
action. Such time element is not an indispensable requirement for a conspiracy to
exist. 28 Consequently, we find that there was a conspiracy between appellant and Altejos
although, for lack of conclusive showing, we cannot consider evident premeditation against
appellant.

The rule is that where a conspiracy is proven, a showing as to who inflicted the fatal wound
is not required to sustain a conviction. 29 The act of one in killing the victim becomes the act
of all the accused. Insofar as Cornelio Altejos is concerned, however, the trial court never
acquired jurisdiction over him and he can neither be convicted nor exculpated herein.
References in this judgment to him are, therefore, obiter and with no binding effect on him. 30

WHEREFORE, the judgment of the trial court is MODIFIED. Accused-appellant Gerardo

Sazon is declared GUILTY beyond reasonable doubt of the crime of homicide and is hereby
sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision
mayor to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal.

The award by the lower court of the items of civil liability to be paid by accused-appellant to
the heirs of the deceased is hereby MODIFIED by disallowing the grant of attorney's fees for
lack of basis, and increasing the death indemnity to P50,000.00 in accordance with the policy
adopted by the Court en banc on August 30,1990.

SO ORDERED.

Xxx People v. Roxas – ANUNA BEEESH

G.R. No. L-162 April 30, 1947

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DIOSCORO ALCONGA and ADOLFO BRACAMONTE, defendants. DIOSCORO
ALCONGA, appellant.

Jose Avanceña for appellant.

Assistant Solicitor General Kapunan, Jr. and Solicitor Barcelona for appellee.

HILADO, J.:

On the night of May 27, 1943, in the house of one Mauricio Jepes in the Municipality of San
Dionisio, Province of Iloilo several persons were playing prohibited games (t.s.n., pp. 95,
125). The deceased Silverio Barion was the banker in the game of black jack, and Maria de
Raposo, a witness for the prosecution, was one of those playing the game (t.s.n., p. 95).
Upon invitation of the said Maria de Raposo, the accused Dioscoro Alconga joined her as a
partner, each of them contributing the sum of P5 to a common fund (t.s.n., pp. 95, 125).
Maria de Raposo played the game while the said accused posted himself behind the
deceased, acting as a spotter of the cards of the latter and communicating by signs to his
partner (t.s.n., pp. 95-96, 126). The deceased appears to have suffered losses in the game
because of the team work between Maria de Raposo and the accused Alconga (t.s.n., pp.
96, 126). Upon discovering what the said accused had been doing, the deceased became
indignant and expressed his anger at the former (t.s.n., pp. 96, 126). An exchange of words
followed, and the two would have come to blows but for the intervention of the maintainer of
the games (t.s.n., p. 96). In a fit of anger, the deceased left the house but not before telling
the accused Alconga, "tomorrow morning I will give you a breakfast" (t.s.n., p. 96), which
expression would seem to signify an intent to inflict bodily harm when uttered under such
circumstances.

The deceased and the accused Alconga did not meet thereafter until the morning of May 29,
1943, when the latter was in the guardhouse located in the barrio of Santol, performing his
duties as "home guard" (t.s.n., pp. 98-100). While the said accused was seated on a bench
in the guardhouse, the deceased came along and, addressing the former, said, "Coroy, this
is your breakfast," followed forthwith by a swing of his "pingahan" (t.s.n., p. 100). The
accused avoided the blow by falling to the ground under the bench with the intention to crawl
out of the guardhouse (t.s.n., pp. 100-101). A second blow was given but failed to hit the
accused, hitting the bench instead (t.s.n., p. 101). The accused manage to go out of the
guardhouse by crawling on his abdomen (t.s.n., p. 101). While the deceased was in the act
of delivering the third blow, the accused, while still in a crawling position (t.s.n., p. 119), fired
at him with his revolver, causing him to stagger and to fall to the ground (t.s.n., p. 101).

Rising to his feet, the deceased drew forth his dagger and directed a blow at the accused
who, however, was able to parry the same with his bolo (t.s.n., pp. 101-102). A hand-to-hand
fight ensued (t.s.n., p. 102). Having sustained several wounds, the deceased ran away but
was followed by the accused (t.s.n., p. 6). After running a distance of about 200 meters
(t.s.n., pp. 21, 108), the deceased was overtaken, and another fight took place, during which
the mortal bolo blow — the one which slashed the cranium — was delivered, causing the
deceased to fall to the ground, face downward, besides many other blows deliver right and
left (t.s.n., pp. 6, 28). At this instant, the other accused, Adolfo Bracamonte, arrived and,
being the leader of the "home guards" of San Dionisio, placed under his custody the accused
Alconga with a view to turning him over to the proper authorities (t.s.n., pp. 102-105).

On their way to San Dionisio, the two accused were stopped by Juan Collado, a guerrilla
soldier (t.s.n., pp. 80, 104). Adolfo Bracamonte turned over Alconga to Collado who in turn
took him to the headquarters (t.s.n., pp. 81, 104). In the afternoon of the same day, Collado
delivered Alconga to Gregorio Barredo, a municipal policeman of San Dionisio, together with
the weapons used in the fight: a revolver, a bolo, and a dagger (t.s.n., pp. 81, 104).

The injuries sustained by the deceased were described by police sergeant Gil G. Estaniel as
follows:

P. ¿Y que hicieron ustedes cuando ustedes vieron a Silverio Barion? — R. Examine

sus heridas.

P. ¿Donde ha encontrado usted las heridas, en que parte del cuerpo? — R. En la

cabeza, en sus brazos, en sus manos, en la mandibula inferior, en la parte frente de
su cuello, en su pecho derecho, y tambien en el pecho izquierdo, y su dedo meñique
habia volado, se habia cortado, y otras perqueñas heridas mas.

P. ¿En la cabeza, vio usted heridas? — R. Si, señor.

P. ¿Cuantas heridas? — R. Una herida en la region parietal derecha y una contusion

en la corona de la cabeza.

P. ¿Vio usted el craneo? — R. En la craneo llevaba una herida, en quel el craneo se

ha roto.

P. ¿En el pecho, herida ha encontrado usted? — R. Debajo de la tetilla derecha, una

herida causada por una bala.

P. ¿Y otras heridas en el pecho, puede usted decir que clase de heridas? — R.

Heridas causadas por bolo.

P. ¿Como de grande acquellas heridas en el pecho? — R. No recuerdo la dimension

de las heridas en el pecho.

P. ¿Pero en la cabeza? — R. La cabeza se rajo por aquella herida causada por el

bolo. (T.s.n., p. 25.)

It will be observed that there were two stages in the fight between appellant and the
deceased. The initial stage commenced when the deceased assaulted appellant without
sufficient provocation on the part of the latter. Resisting the aggression, appellant managed
to have the upper hand in the fight, inflicting several wounds upon the deceased, on account
of which the latter fled in retreat. From that moment there was no longer any danger to the
life of appellant who, being virtually unscathed, could have chosen to remain where he was.
Resolving all doubts in his flavor, and considering that in the first stage the deceased was
the unlawful aggressor and defendant had not given sufficient provocation, and considering
further that when the deceased was about to deliver the third blow, appellant was still in a
crawling position and, on that account, could not have effectively wielded his bolo and
therefore had to use his "paltik" revolver — his only remaining weapon — ; we hold that said
appellant was then acting in self-defense.

But when he pursued the deceased, he was no longer acting in self-defense, there being
then no more aggression to defend against, the same having ceased from the moment the
deceased took to his heels. During the second stage of the fight appellant inflicted many
additional wounds upon the deceased. That the deceased was not fatally wounded in the
first encounter is amply shown by the fact that he was still able to run a distance of some 200
meters before being overtaken by appellant. Under such circumstances, appellant's plea of
self-defense in the second stage of the fight cannot be sustained. There can be no defense
where there is no aggression.

Although the defendant was not the aggressor, he is not exempt from criminal liability
for the reason that it is shown that he struck several blows, among them the fatal
one, after the necessity for defending himself had ceased, his assailant being then in
retreat. Therefore one of the essential ingredients of self-defense specified in No. 4,
article 8 of the Penal Code is wanting (now article 11, case No. 1, Revised Penal
Code). (United States vs. Dimitillo, 7 Phil., 475, 476; words in parenthesis supplied.)

. . . Even if it be conceded for the moment that the defendants were assaulted by the
four (offended parties), the right to kill in self-defense ceased when the aggression
ceased; and when Toledo and his brothers turned and ran, without having inflicted so
much as a scratch upon a single one of the defendants, the right of the defendants to
inflict injury upon them ceased absolutely. They had no right to pursue, no right to kill
or injure. A fleeing man is not dangerous to the one from whom he flees. When
danger ceases, the right to injure ceases. When the aggressor turns and flees, the
one assaulted must stay his hand. (United States vs. Vitug, 17 Phil., 1, 19; emphasis
supplied.)

Upon the foregoing facts, we hold that appellant's guilt of the crime of homicide has been
established beyond reasonable doubt. The learned trial court appreciated in his favor of two
mitigating circumstances: voluntary surrender and provocation on the part of the deceased.
The first was properly appreciated; the second was not, since it is very clear that from the
moment he fled after the first stage of the fight to the moment he died, the deceased did not
give any provocation for appellant to pursue much less further to attack him.

The only provocation given by him was imbibed in, and inseparable from, the aggression
with which he started the first stage of the fight. The evidence, as weighed and appreciated
by the learned trial judge, who had heard, seen and observed the witnesses testify, clearly
shows that said stage ended with the flight of the deceased after receiving a bullet wound in
his right breast, which caused him to stagger and fall to the ground, and several bolo wounds
inflicted by appellant during their hand-to-hand fight after both had gotten up. The learned
trial judge said:

The evidence adduced by the prosecution and the defense in support of their
respective theories of the case vary materially on certain points. Some of these facts
have to be admitted and some have to be rejected with the end in view of arriving at
the truth. To the mind of the Court, what really happened in the case at bar, as can
de disclosed by the records, which lead to the killing of the deceased on that fatal
morning of May 29, 1945 (should be 1943), is as follows:

xxx xxx xxx

In the morning of May 29, 1943, while Dioscoro Alconga was alone in the
guardhouse performing his duties as guard or "ronda" in Barrio Santol, the deceased
Silverio Barion passed by with a "pingahan". That was the first time the deceased
and the accused Alconga had met since that eventful night of May 27th in the
gambling house of Gepes. Upon seeing the accused Alconga, who was then seated
in the guardhouse, the deceased cried: "Coroy, this is now the breakfast!" These
 words of warning were immediately followed by two formidable swings of the
"pingahan" directed at the accused Alconga which failed to hit him. Alconga was able
to avoid the blows by falling to the ground and crawling on his abdomen until he was
outside the guardhouse. The deceased followed him and while in the act of delivering
the third blow, Dioscoro Alconga fired at him with his revolver thereby stopping the
blow in mid-air. The deceased fell to the ground momentarily and upon rising to his
feet, he drew forth a dagger. The accused Alconga resorted to his bolo and both
persons being armed, a hand-to-hand fight followed. The deceased having sustained
several wounds from the hands of Alconga, ran away with the latter close to his
heels.

The foregoing statement of the pertinent facts by the learned trial judge is in substantial
agreement with those found by us and narrated in the first paragraphs of this decision. Upon
those facts the question arises whether when the deceased started to run and flee, or
thereafter until he died, there was any provocation given by him from appellant to pursue and
further to attack him. It will be recalled, to be given with, that the first stage of the fight was
provoked when the deceased said to appellant "Cory, this is now the breakfast," or "This is
your breakfast," followed forthwith by a swing or two of his "pingahan." These words without
the immediately following attack with the "pingahan" would not have been uttered, we can
safely assume, since such an utterance alone would have been entirely meaningless. It was
the attack, therefore, that effectively constituted the provocation, the utterance being, at best,
merely a preclude to the attack. At any rate, the quoted words by themselves, without the
deceased's act immediately following them, would certainly not have been considered a
sufficient provocation to mitigate appellant's liability in killing or injuring the deceased. For
provocation in order to be a mitigating circumstance must be sufficient and immediately
preceding the act. (Revised Penal Code, article 13, No. 4.)

Under the doctrine in United States vs. Vitug, supra, when the deceased ran and fled without
having inflicted so much as a scratch upon appellant, but after, upon the other hand, having
been wounded with one revolver shot and several bolo slashes, as aforesaid, the right of
appellant to inflict injury upon him, ceased absolutely — appellant "had no right to pursue, no
right to kill or injure" said deceased — for the reason that "a fleeing man is not dangerous to
the one from whom he flees." If the law, as interpreted and applied by this Court in the Vitug
case, enjoins the victorious contender from pursuing his opponent on the score of self-
defense, it is because this Court considered that the requisites of self-defense had ceased to
exist, principal and indispensable among these being the unlawful aggression of the
opponent (Rev. Penal Code, article 11, No. 1; 1 Viada, 5th ed., 173).

Can we find under the evidence of record that after the cessation of said aggression the
provocation thus involved therein still persisted, and to a degree sufficient to extenuate
appellant's criminal responsibility for his acts during the second stage of the fight? Appellant
did not testify nor offer other evidence to show that when he pursued the deceased he was
still acting under the impulse of the effects of what provocation, be it anger, obfuscation or
the like. The Revised Penal Code provides:

ART. 13. Mitigating circumstances:

xxx xxx xxx

4. That sufficient provocation or threat on the part of the offended party immediately
preceded the act.
It is therefore apparent that the Code requires for provocation to be such a mitigating
circumstance that it not only immediately precede the act but that it also be sufficient. In the
Spanish Penal Code, the adjective modifying said noun is "adecuada" and the Supreme
Court of Spain in its judgment of June 27, 2883, interpreted the equivalent provision of the
Penal Code of that country, which was the source of our own existing Revised Penal Code,
that "adecuada" means proportionate to the damage caused by the act. Viada (Vol. 11, 5th
ed., p. 51) gives the ruling of that Supreme Court as follows:

El Tribunal Supremo ha declarado que la provocacion o amenaza que de parte del

ofendido ha de preceder para la disminucion de la responsabilidad criminal debe
ser proporcionada al daño que se cause, lo cual no concurre a favor del reo si
resulta que la unica cuestion que hubo fue si en un monton de yeso habia mas
omenos cantidad, y como perdiera la apuesta y bromeando dijera el que la gano que
beberia vino de balde, esa pequeña cuestion de amor propio no justificaba en modo
alguno la ira que le impelio a herir y matar a su contrario. (S. de 27 de junio de 1883,
Gaceta de 27 de septiembre.)

Justice Albert, in his commentaries on the Revised Penal Code, 1946 edition, page 94, says:
"The provocation or threat must be sufficient, which means that it should be proportionate to
the act committed and adequate to stir one to its commission" (emphasis supplied).

Sufficient provocation, being a matter of defense, should, like any other, be affirmatively
proven by the accused. This the instant appellant has utterly failed to do. Any way, it would
seem self-evident that appellant could never have succeeded in showing that whatever
remained of the effects of the deceased's aggression, by way of provocation after the latter
was already in fight, was proportionate to his killing his already defeated adversary.

That provocation gave rise to a fight between the two men, and may be said, not without
reason, to have spent itself after appellant had shot the deceased in his right breast and
caused the latter to fall to the ground; or — making a concession in appellant's favor — after
the latter had inflicted several bolo wounds upon the deceased, without the deceased so
much as having scratched his body, in their hand-to-hand fight when both were on their feet
again. But if we are to grant appellant a further concession, under the view most favorable to
him, that aggression must be deemed to have ceased upon the flight of the deceased —
upon the end of the first stage of the fight. In so affirming, we had to strain the concept in no
small degree. But to further strain it so as to find that said aggression or provocation
persisted even when the deceased was already in flight, clearly accepting defeat and no less
clearly running for his life rather than evincing an intention of returning to the fight, is more
than we can sanction. It should always be remembered that "illegal aggression is equivalent
to assault or at least threatened assault of an immediate and imminent kind.

Agresion ilegitima. — Agresion vale tanto como acometimiento. Para que exista el
derecho de defensa es preciso que se nos acometa, que se nos ataque, o cuando
menos, que se nos amenace de atacarnos de un modo inmediato e inminente; v.
gr., desenvainando el puñal para herirnos con el o apuntando la pistola para
dispararla contra nosotros. (Viada, 5. a edicion, 173.)

After the flight of the deceased there was clearly neither an assault nor a threatened assault
of the remotest kind. It has been suggested that when pursuing his fleeing opponent,
appellant might have thought or believed that said opponent was going to his house to fetch
some other weapon. But whether we consider this as a part or continuation of the self-
defense alleged by appellant, or as a separate circumstance, the burden of proof to establish
such a defense was, of course, upon appellant, and he has not so much as attempted to
introduce evidence for this purpose. If he really thought so, or believed so, he should have
positively proven it, as any other defense. We can not now gratuitously assume it in his
behalf.

It is true that in the case of United States vs. Rivera (41 Phil., 472, 474), this Court held that
one defending himself or his property from a felony violently or by surprise threatened by
another is not obliged to retreat but may pursue his adversary until he has secured himself
from danger. But that is not this case. Here from the very start appellant was the holder of
the stronger and more deadly weapons — a revolver and a bolo, as against a piece of
bamboo called "pingahan" and a dagger in the possession of the deceased. In actual
performance appellant, from the very beginning, demonstrated his superior fighting ability;
and he confirmed it when after the deceased was first felled down by the revolver shot in
right breast, and after both combatants had gotten up and engaged in a hand-to-hand fight,
the deceased using his dagger and appellant his bolo, the former received several bolo
wounds while the latter got through completely unscathed. And when the deceased
thereupon turned and fled, the circumstances were such that it would be unduly stretching
the imagination to consider that appellant was still in danger from his defeated and fleeing
opponent. Appellant preserved his revolver and his bolo, and if he could theretofore so easily
overpower the deceased, when the latter had not yet received any injury, it would need,
indeed, an unusually strong positive showing — which is completely absent from the record
— to persuade us that he had not yet "secured himself from danger" after shooting his
weakly armed adversary in the right breast and giving him several bolo slashes in different
other parts of his body. To so hold would, we believe, be unjustifiably extending the doctrine
of the Rivera case to an extreme not therein contemplated.

Under article 249, in relation with article 64, No. 2, of the Revised Penal Code, the crime
committed by appellant is punishable by reclusion temporal in its minimum period, which
would be from 12 years and 1 day to 14 years and 8 months. However, in imposing the
penalty, we take into consideration the provisions of section 1 of the Indeterminate Sentence
Law (Act No. 4103), as amended by Act No. 4225. Accordingly, we find appellant guilty of
the aforesaid crime of homicide and sentence him to an indeterminate penalty of from 6
years and 1 day of prision mayor to 14 years and 8 months of reclusion temporal, to
indemnify the heirs of the deceased in the sum of P2,000, and to pay the costs.

As thus modified, the judgment appealed from is hereby affirmed. So ordered.

G.R. No. L-26240 October 31, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BENJAMIN GONDAYAO, alias "BEN", ET AL., defendants,
BENJAMIN GONDAYAO, alias "BEN", and ANOY GONDAYAO, defendants-appellants.

Bonifacio T. Doria and Bernardo M. Morada for defendants-appellants.

Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Pacifico P. de
Castro and Solicitor Sumilang V. Bernardo for plaintiff-appellee.

CONCEPCION, C.J.:
Appeal, taken by defendants Benjamin Gondayao and Anoy Gondayao, from a decision of
the Court of First Instance of Pangasinan, convicting them of the crime of murder, qualified
by treachery, and sentencing them to life imprisonment and to jointly and severally indemnify
the heirs of the deceased, Orlando Piol, in the sum of P6,000.00, and to pay two-fifths of the
costs.

After grappling with Benjamin Gondayao, near the market place, in the Barrio of Paitan,
Municipality of Sual, Province of Pangasinan, on November 14, 1965, between 11:00 and
11:30 a.m., Orlando Piol appeared to have — in addition to several lacerations on the head
— two (2) stab wounds on the back, 4 to 4-1/2 inches deep, in consequence of which he
died that same afternoon, due to a massive internal hemorrhage. Immediately after the
occurrence, Benjamin assumed full responsibility for said injuries, which he claimed to have
inflicted in self-defense. On November 17, 1965, Macario Aquino, Chief of Police of Sual,
filed, with the Municipal Court thereof, a complaint charging Benjamin Gondayao with
homicide. Twelve (12) days later, Aquino filed an amended complaint charging murder,
allegedly committed, not only by Benjamin Gondayao, but, also, by his brother, Anoy
Gondayao, and Eduardo Bersamina, Eto Agbayani and Jovencio Yanday. Soon thereafter,
the corresponding information for murder was filed, with the Court of First Instance of
Pangasinan, against said five defendants. After due trial, under a plea of not guilty, said court
rendered the appealed decision convicting Benjamin Gondayao and Anoy Gondayao as
charged and sentencing them as stated at the beginning of this decision, as well as
acquitting their three (3) co-defendants, for insufficiency of the evidence, with three-fifths
(3/5) of the cost de officio. Hence, this appeal by the Gondayaos.

The main eyewitnesses for the prosecution were Macario Pascua and Police Chief Macario
Aquino. The first testified that, while he was reading a newspaper, in front of the house of the
Vice-Mayor, in Barrio Paitan, Sual, Pangasinan, on November 14, 1965, between 10:00 and
11:30 a.m., he saw Benjamin Gondayao and his co-defendants, a few meters away, drinking
gin in front of the store of Segundo Sevillena, which was alongside the house and store of
the Vice-Mayor; that, after consuming a bottle of gin, Benjamin Gondayao, repeatedly cursed
the "Nacionalistas" for not offering a drink despite their victory in the polls; that, as Orlando
Piol who was nearby, replied by cursing the losers in the elections, an exchange of unfriendly
utterances followed; that, eventually, the group headed by Benjamin picked up stones and
threw them at Piol, who was hit several times on the head; that, as the same began to bleed,
Piol drew out a dagger and approached Benjamin, who, forthwith, embraced him; that,
grappling with each other, they both fell down, with Piol on top of Benjamin; that, at this
juncture, Anoy Gondayao picked up a stone and hit Piol with it on the head, and then
wrestled the dagger from him; that, upon a signal given by Benjamin, who had meanwhile
managed to get away from under Piol, Anoy stabbed Piol on the back and, then, leaving the
dagger imbedded therein, retreated; that thereupon Benjamin pulled out the dagger and sank
it again on the back of Piol who was still facing downward, in a stooping position; and that
Eduardo Bersamina, Eto Agbayani and Jovencio Yanday were then about 5 meters away.

Macario Aquino did not witness the beginning of the incident. He was about 25 meters from
the place of the occurrence, when he noticed a commotion. Rushing to the scene thereof, he
saw Benjamin and Piol, about 3 meters away from him, rush at each other and grapple with
one another, until they fell together from a bamboo bed, locally known as "papag", on which
they were standing; that, inasmuch as the same and a wooden fence between him and the
combatants prevented him from going to them directly and seeing what was going on after
said fall, he walked about 10 meters, in order to go around the fence and approach the
fighting men; that, bidding them to stop, he seized the hand of Benjamin which held a
dagger, with which he was poised to stab Piol then lying down on his stomach, under
Benjamin; that Aquino thereupon wrested from him the dagger, which was stained with
blood; and that Benjamin then said it was he who had wounded Piol.

Upon the other hand, Benjamin Gondayao testified that his remark, about the failure to give a
blow-out on the part of the winner in the elections, was addressed to his nephew, Rudy
Natividad; that, when Piol resented said remark, Benjamin replied that the same was not
aimed at him, and that, perhaps, he (Piol) is a "nacionalista"; that after another exchange of
unfriendly remarks, Piol drew out his dagger and said "I am going to kill you"; that Benjamin
then tried to run away and went up the "papag", with the intention of jumping over the
wooden fence beside it; that he was unable to do so because Piol followed him on top of the
"papag"; that he, therefore, faced Piol, who thrust his dagger at him (Benjamin), but he
parried the thrust with the left arm, which was then wounded slightly; that, by pressing the
hand with which Piol held the dagger, Benjamin succeeded in disarming him; that, as Piol
grappled with and embraced him, they fell to the ground, with Piol under him; that Piol landed
over the dagger — then held by Benjamin — which pierced his (Piol's) back; that, as they
kept on wrestling with each other, Piol managed to roll over and place himself on top of
Benjamin; that Piol then picked up a stone and with it struck Benjamin on the face, thereby
causing thereon a lacerated wound; that Piol tried to hit him a second time with the stone,
but Benjamin warded off the blow; that he was then able to get another stone, with which he,
in turn, hit Piol on the head several times; that Piol, however, squeezed the neck of
Benjamin, who let loose the stone and, pulling Piol down with his (Benjamin's) right hand,
stabbed him (Piol) with his (Benjamin's) left hand, by thrusting the dagger into his back; and
that the Chief of Police then came and separated them.

Benjamin's co-defendants set up their respective alibis, but We are not concerned with the
three (3) defendants who were acquitted by the lower court. As regards appellant Anoy
Gondayao, We note that the Chief of Police did not even see him at the scene of the
occurrence, although said officer admitted that he had not paid any attention to the persons
who were near the combatants. Again, it is difficult to see how Anoy Gondayao could have
stabbed Piol without being noticed by said peace officer. In this connection, it is well to
remember that, according to Macario Pascua — the only witness who testified to the alleged
participation of Anoy Gondayao in the commission of the crime charged — this appellant
stabbed Piol after the latter and Benjamin had fallen from the "papag" in the course of their
fight. The Chief of Police was only three (3) meters away, looking at them, even before they
had thus fallen. Hence, he would have, in all probability, seen Anoy, had he done what
Pascua imputed to him (Anoy). There was, of course, the possibility that Anoy's intervention
may have taken place as the Chief of Police went around the fence that separated him from
the combatants and his attention was momentarily diverted from them. In a way, however,
this circumstance is offset by the fact that, as soon as the Chief of Police approached the
combatants and bade them to stop, Benjamin owned his responsibility for the injuries of Piol.
This statement was made before Benjamin had time to reflect, and thus forms part of the res
gestae, as well as carries much weight. All things being considered, We find that the
prosecution has not established, beyond reasonable doubt, the guilt of Anoy Gondayao, who
should, accordingly, be acquitted, for insufficiency of the evidence.

With respect to appellant Benjamin Gondayao, his Honor, the trial Judge, found his
testimony unworthy of credence and the record before Us fully justifies such finding. Indeed,
Benjamin testified that, as he grappled with Piol on top of a "papag", they fell together
therefrom, with him on top of Piol who landed on his back, over the dagger held by Benjamin,
who had wrested it from Piol, and that this was how Piol sustained the first stab wound on
the back. This cannot possibly be true, for the Chief of Police testified that Piol was holding
the dagger when he and Benjamin fell down from the "papag". Besides, had Piol's back been
pressed against the dagger, which was allegedly held by Benjamin, the resulting wound
would have taken a markedly slanting direction instead of being almost at right angle with, or
perpendicular to, the body, as it turned out to be. Then, too, Piol was on top of Benjamin,
when they fell from the "papag", according to Macario Pascua.

Again, Benjamin's version is that, after this accidental injury on the back of Piol, the latter
succeeded in rolling over and being on top of him (Benjamin); that Piol then struck him on
the face with a stone; that, after fending off another attempt of Piol to similarly hit him again,
he (Benjamin) picked up another stone and, in turn, struck him with it on the head; that, as
Benjamin squeezed him by the neck, he let the stone loose and, pulling Piol down with his
(Benjamin's) right hand, he (Benjamin) stabbed Piol on the back — on which, according to
Benjamin, Piol was lying — by thrusting the dagger with his left hand; and that, at this
juncture, the Chief of Police came and took the weapon from him.

This story is manifestly artificious and unworthy of credence. It should be noted that,
according to Benjamin, he held the dagger, even before they fell from the "papag"; that the
dagger was still in his hand when Piol allegedly struck his face with a stone; and that he
(Benjamin), in turn, took another piece of stone, and hit Piol with it. This would have been
impossible, however, unless Benjamin first released the dagger, which he then held; but, We
cannot believe that he, or anybody for that matter, would have done so under the
circumstances.

Again, when Piol allegedly squeezed the neck of Benjamin, the latter threw the stone away
and picked up the dagger once more. He would thus have Us believe that, in order to get the
stone with which he claimed to have hit Piol on the head, he put the dagger in a convenient
place from which, at the opportune moment, he got it back to inflict the second stab wound.
The context of Benjamin's story does not convey the idea that he had such a control of the
situation as to be able to choose the place where he would put the dagger and the time he
would retrieve it.

But, this is not all. Instead of stabbing Piol on the stomach, for, by this time, he was again
lying down on his back — according to the defense — with Benjamin on top of him, he
(Benjamin) thrust the dagger, with his left hand, into the back of Piol, causing therein another
stab wound almost at right angle with his body, like the first. Just why, being in the
precarious condition he depicted himself, Benjamin chose to stab Piol in such an awkward,
inconvenient and unbelievable manner, the defense has not even tried to explain.
Regardless of the foregoing, an injury inflicted in this fashion on Piol's back, which was
allegedly pressed against the ground, would have necessarily been much more slanting than
the first, instead of being almost perpendicular to the body. The fact of the matter — and this
has been established by the testimony of the Chief of Police, whose impartiality and veracity
are not contested — is that Piol was then lying down, not on his back, but on his stomach
with Benjamin on top of him. This explains why and how he (Benjamin) managed to stab Piol
on the back. It, likewise, shows that Piol could not have struck Benjamin on the face with a
stone, much less squeezed his neck. .

It is clear, from the foregoing, that Benjamin stabbed Piol twice from behind, after disarming
him.1 Considering, moreover, that Benjamin had provoked the incident, by hurling
uncomplimentary remarks at his political opponents, one of whom was Piol;2 that such
remarks led to an altercation with Piol, in consequence of which, stones were thrown at him,
hitting him on the head; that when, owing to the impact of said stone, which could have
rendered him groggy, and the lacerated injuries thus sustained by him, Piol prepared himself
to fight by drawing out his dagger, Benjamin accepted the challenge resulting from this act,
by "rushing" to his encounter and grappling with him; and that, accordingly, Benjamin cannot
be given the benefit of either complete or incomplete self-defense.3 Although Piol was
stabbed from behind, Benjamin did not act with treachery, for this was merely an incident of
their struggle, which had begun with both contenders facing each other, each prepared for
the fight that ensued.4

The crime committed by Benjamin Gondayao is, therefore, that of homicide, and no
modifying circumstance having attended its perpetration, the penalty therefor (reclusion
temporal) should be imposed in its medium period. Pursuant to the Indeterminate Sentence
Law, he should, accordingly, be sentenced to an indeterminate penalty ranging from 8 years
and 1 day of prison mayor, as minimum, to 14 years, 8 months and 1 day of reclusion
temporal as maximum, with the corresponding accessory penalties. Moreover, the indemnity
due from him to the heirs of Orlando Piol should be increased from P3,000.00 to P12,000.00,
pursuant to People v. Pantoja5 and subsequent cases,6 apart from the fact that Anoy
Gondayao should be acquitted, for insufficiency of the evidence against him, with the
proportional part of the costs de officio.

With the foregoing modifications, the decision appealed from should be, as it is hereby
affirmed, in all other respects, with one-fifth (1/5) of the costs against appellant Benjamin
Gondayao. It is so ordered.

G.R. No. L-28129 October 31, 1969

ELIAS VALCORZA, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

Nemesio G. Beltran for petitioner.

Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Isidro C.
Borromeo and Solicitor Dominador L. Quiroz for respondent.

DIZON, J.:

Elias Valcorza was charged with homicide in the Court of First Instance of Bukidnon where,
after trial, he was found guilty thereof, with the mitigating circumstances of lack of intention to
commit so grave a wrong as the one committed and voluntary surrender, and sentenced to
suffer an indeterminate sentence of not less than two years, four months and one day
of prision correccional, nor more than eight years and one day of prision mayor, to indemnify
the heirs of Roberto Pimentel in the amount of 6,000, but without subsidiary imprisonment in
case of insolvency, and to pay the costs. He appealed to the Court of Appeals where, on
August 16, 1967, judgment was rendered modifying the decision of the trial court, as follows:

WHEREFORE, the judgment is modified as to the prison term and appellant Elias
Valcorza is declared guilty of homicide with the mitigating circumstances of voluntary
surrender and passion and obfuscation and, accordingly, he is sentenced to serve an
indeterminate penalty of four (4) months and one (1) day of arresto mayor, as
minimum, to two (2) years, four (4) months and one (1) day of prision correccional,
as maximum, with the accessories of the law; to pay the heirs of the deceased,
Roberto Pimentel, in the sum of six thousand pesos (P6,000.00), together with the
costs.

In all other respects, the appealed judgment is affirmed.

From the above decision the present appeal by certiorari was taken, it being petitioner's
claim that the Court of Appeals committed the following errors:

ASSIGNMENT OF ERRORS

THAT THE HONORABLE COURT OF APPEALS (MAJORITY DECISION) ERRED

IN HOLDING THAT PETITIONER ALTHOUGH IN THE PERFORMANCE OF HIS
DUTY AS PEACE OFFICER WAS NOT JUSTIFIED IN SHOOTING THE
DECEASED BECAUSE THERE WAS NO DANGER TO HIS LIFE OR LIMB, A
RULING WHICH IS BEYOND THE CONTEXT OF ARTICLE 11, PARAGRAPH 5 OF
THE REVISED PENAL CODE AND CONTRARY TO THE RULING LAID BY THIS
HONORABLE SUPREME COURT IN PEOPLE VERSUS DELIMA, 46 PHIL. 738;

II

THAT THE HONORABLE COURT OF APPEALS (MAJORITY DECISION) ERRED

IN LIKING PETITIONER TO A TRIGGER-HAPPY POLICEMAN AND IN HOLDING
THAT THE DECEASED HAS NOT SHOWN TO BE A DANGEROUS PERSON, A
RULING WHICH IS CONTRARY TO ITS FINDING OF FACTS;

III

THAT THE HONORABLE COURT OF APPEALS (MAJORITY DECISION) ERRED

IN NOT ACQUITTING THE PETITIONER BASED ON THE FACTS IN RELATION
TO ARTICLE 11, PARAGRAPH 5 OF THE REVISED PENAL CODE.

The facts found by the Court of Appeals — which must be deemed conclusive for the
purpose of this appeal — are as follows:

The deceased, Roberto Pimentel, was confined an June 4, 1960 in the municipal jail
of Maramag, Bukidnon, as a detention prisoner to answer a charge of stealing a
chicken. At about 1:00 p.m. when appellant was the police guard on duty, Roberto
Pimentel escaped. The following day a police patrol team composed of Police Sgt.
Federico Daiton and Patrolmen Melquiades Cañas, Pablo Lubido and the appellant
himself went to a place called Poultry Area in barrio Cuya, Maramag, Bukidnon,
where the accused had been reported to be hiding, for the purpose of bringing him
back to jail. Their efforts to locate and apprehend Roberto Pimentel having been
fruitless, they decided to pass the night in the house of one Gavino Tirayosa
intending to return to town the following morning.

At about five o'clock in the morning of the next day, June 6, 1960, Sgt. Daiton went
down from the house of Gavino Tirayosa to answer a call of nature. He went to a
nearby bridge and squatted thereon to defecate. While he was in that position, he
saw a person approaching slowly and he ordered him to halt. The latter instead of
doing so, jumped down into the creek spanned by the bridge. He yelled for his
companions, saying that the person who jumped into the creek could be their quarry.
Patrolmen Cañas, Lubido and the appellant rushed out of the house of Gavino
Tirayosa, Cañas and appellant going to the place at the creek where the person had
jumped down.
Sgt. Daiton stationed himself near the bridge and Patrolman Lubido went to the other
side of the creek. Appellant and Cañas followed the course of the creek and after
covering a distance of 100 meters they came across footprints which they examined
separately. While they were doing so, Roberto Pimentel emerged suddenly from the
bushes and lunged at the appellant, hitting him with a stone at the right cheek and
causing him to fall to the ground. When appellant Valcorza was on the ground,
Roberto Pimentel again struck him with a stone on the right arm. Fearing that
Pimentel might grab his service revolver, appellant Valcorza summoned Patrolman
Cañas who dashed towards the place but Pimentel ran away. Appellant Valcorza
regained his composure and immediately chased the deceased, firing a shot into the
air and ordering him to stop. As the deceased did not heed his order, appellant fired
four times into the air, at the same time pursuing the prisoner for a distance of about
100 meters. At that point, fearing that the patrol team might fail in apprehending the
deceased, appellant Valcorza fired a fifth shot at Pimentel as the latter was in an act
of again jumping down into another part of the creek and when the distance between
the two was only three meters. Patrolman Ca_¤_as could not be of much help in the
chase because his revolver got entangled with some vines and he dropped it. After
recovering his revolver he joined Valcorza but Pimentel had already jumped down
into the water of the creek.

The members of the patrol team went down into the water to locate Pimentel and
they saw him floating, with a wound on his back. As Pimentel was still alive, he was
placed in the police jeep and taken to the poblacion of Maramag for treatment, but he
died a few minutes after arrival in the municipal building.

The physician who examined the cadaver of the victim gave the opinion that the
missile from the gun fired against the victim entered at the right side of the back but
the slug was lodged inside the body. The gray discoloration at the edge or rim of the
wound of entry showed the presence of powder burns which, in the opinion of the
physician, indicates that the gun was fired at close range.

Elias Valcorza surrendered himself and his firearm to the Chief of Police upon arrival
in the municipal building of Maramag.

Appellant seeks to justify his firing the shot against the deceased by stating that he
tried to hit him only at the leg, after he had disregarded his several warning shots and
orders to stop running away. He claims that he did so at the spur of the moment
probably because he feared that his patrol team might not succeed in apprehending
the deceased and bringing him back to jail. Furthermore, he also claims that he only
fired at the deceased when the latter was in the act of jumping down into the creek
which had water of 8 feet deep, and if the deceased succeeded in crossing the creek
the patrol team might not be able to apprehend him. In brief the appellant conveys
idea that he had to fire at the deceased in order that he may not continue escaping.

The above version of the appellant was given in open court when he testified on
October 4, 1962 (t.s.n. — pp. 9, 76). However, he claims that he aimed only at the
leg of the deceased is not consistent with what he said in his sworn statement,
Exhibit A. 'Question and Answer No. 7' (p. 1, Criminal Case Record), given to the
Constabulary soldiers on the afternoon of the day of the incident, or at 3:15 p.m. of
June 6, 1960. In narrating how the deceased was shot, appellant Valcorza stated in
part as follows:
 "But said Roberto Pimentel tried his very best to make another escape then
he ran away cause I was fell down on the ground during the time I wrestled
him, Roberto Pimentel. Then I still follow him and fire my revolver four (4)
times up in the sky to stop him but still he continue running, so what I did I
fired him one direct hit shot on his back then he tried dive escape into the
water, and because he could not do anything cause he was already suffering
from a gunshot wound we pick him up and bring him to our headquarters in
the Office of the Chief of Police of Maramag, Bukidnon, for the necessary
treatment of the gunshot wound on his right side back ... ."

What the appellant said on June 6, 1960 in his statement, Exhibit A, which he
subscribed and sworn to before the Justice of the Peace of Maramag, Bukidnon, on
June 7, 1960, is an unadulterated narration of what happened on the day of the
incident more than two years before he took the witness stand. This first narration is
more reliable because it was made when there was yet no time for reflection so as to
make his story fit into the facts of the incident. After the lapse of two years during
which he could deliberate and analyze the occurrence and prepare his defense, his
testimony in court no longer jibed with what he said shortly after the event. This
inconsistency affects his credibility and wrecks his theory that he had no intention to
kill the deceased but only meant to disable him from further escaping. It also
seriously impairs his defense as it shows that there was no reasonable necessity for
appellant to shoot the deceased at the time he was running away with no weapon in
his hands which he could use for aggression against the appellant in case he desired
to turn back and face the latter. (pp. 3-7, Annex "A", Petitioner's brief.)

There is no question, therefore, that: on June 4, 1960, the deceased Roberto Pimentel was a
detention prisoner confined in the municipal jail of Maramag, Bukidnon, from which he
escaped at about one o'clock p.m. that day when petitioner was on guard duty; the following
day four members of the police force of the municipality, petitioner included, went after him to
a place called Poultry Area in barrio Cuya, their first efforts to locate him there being
unsuccessful; early the following morning, while Sgt. Daiton, who led the patrol, was
squatting on a bridge to answer a call of nature, he saw a man approaching slowly and he
ordered him to stop; the latter, who happened to be the escaped detainee, instead of doing
so, jumped into the creek spanned by the bridge, whereupon Sgt. Daiton summoned his
three companions who all rushed out of the house where they had spent the night, and went
after the escaping prisoner; petitioner and policeman Ca_¤_as, while following the course of
the creek and examining certain footprints they had found, saw their quarry suddenly
emerging from nearby bushes; the latter lunged at petitioner hitting him with a stone on the
right cheek, as a consequence of which he fell down, and while in that position on the ground
he was struck again with a stone by the escaping detainee; thereafter the latter ran away
pursued by petitioner and his companion; in the course of the pursuit the former fired a
warning shot into the air, and as the escaping detainee paid no heed to this, petitioner fired
into the air four times more and kept on pursuing him; as the latter was apparently widening
the distance between them, and fearing that he might finally be able to elude arrest,
petitioner fired directly at him while he was in the act of jumping again into another part of the
creek, the shot having hit him on the back; as a result of the wound thus inflicted upon him,
Pimentel died a few minutes after arrival at the municipal building to which he was taken.

While We have not lost sight of the fact that the deceased Pimentel was charged with a
relatively minor offense, namely, stealing a chicken; and while We do not in any way wish to
encourage law enforcing officers to be trigger-happy nor to employ force and violence upon
persons under their custody, We cannot, in the consideration of this case, disregard the
following facts: the said deceased, in violation of the law, had escaped from detention; when
ordered to stop by Sgt. Daiton — whom he must have recognized as a peace officer in his
pursuit — he ran away and then threw himself into a creek to elude his pursuer; after
sometime he suddenly emerged from bushes near which petitioner and a fellow policeman
were and assaulted the former twice with a stone and then ran away again pursued by
petitioner and his companion; that petitioner does not appear to be a trigger-happy
policeman as shown by the fact that he had fired five cautionary shots into the air and
decided to aim directly at the escaping detainee only when he had already reasons to fear
that the latter would be able to elude him and his companions. These facts and
circumstances constrain Us to hold that the act thus performed by petitioner — and which
unfortunately resulted in the death of the escaping detainee — was committed in the
performance of his official duty and was more or less necessary to prevent the escaping
prisoner from successfully eluding the officers of the law. To hold him guilty of homicide may
have the effect of demoralizing police officers discharging official functions identical or similar
to those in the performance of which petitioner was engaged at the time he fired at the
deceased Pimentel, with the result that thereafter We would have half-hearted and dispirited
efforts on their part to comply with such official duty. This of course, would be to the great
detriment of public interest.

CONSEQUENTLY, in the spirit of our decision in People vs. Delima, 46 Phil. 738, the
decision appealed from is hereby reversed and, as a consequence, petitioner is acquitted,
with costs de officio.

EN BANC

[G.R. No. L-23514. February 17, 1970.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. AVELINO MANANSALA, JR.,

ET AL., Defendants, AVELINO MANANSALA, JR. and JOSE MANANSALA, Defendants-
Appellants.

Solicitor General Arturo A. Alafriz, Assistant Solicitor General Isidro C. Borromeo and
Solicitor Dominador L. Quiroz for Plaintiff-Appellee.

Quintin C. Paredes and Paredes & Associates, for Defendants-Appellants.

SYLLABUS

1. CRIMINAL LAW; MURDER; CIRCUMSTANCES BELIE SELF-DEFENSE; CASE AT BAR.

— When Avelino surrendered to the policemen he declined to give any statement, which in
the natural course of things he would have done if he had acted merely to defend himself. A
protestation of innocence or justification is the logical and spontaneous reaction of a man
who finds himself in such an inculpatory predicament as that in which the policemen came
upon the appellants, with Avelino still clutching the death weapon and its victim dying before
him.

2. ID.; ID.; CIRCUMSTANCES OF SUFFICIENT PROVOCATION; PROVED. — But while it

is clear that Avelino did not act in legitimate self-defense, the trial court correctly held that
there was sufficient provocation on the part of the victim. The evidence given by the
witnesses for the defense as to how and why the fight started, and as to the fact that the
deceased hit Avelino with his fist, is not controverted by the witnesses for the prosecution,
who did not see the incident from the very beginning. And one fist blow at least is confirmed
by the doctor who treated Avelino for a contusion around one eye.

3. ID.; ID.; TREACHERY; FACTS CONSTITUTIVE OF TREACHERY. — The fact that when
Avelino stabbed the victim the latter was practically helpless and unable to put up any
defense, being in the tight embrace of Jose Manansala, was correctly appreciated by the trial
court as treachery, and qualifies the offense as murder.

DECISION

MAKALINTAL, J.:

This is an appeal from the decision of the Court of First Instance of Albay in its Criminal Case
No. 3285 convicting Avelino Manansala, Jr. and Jose Manansala of murder and sentencing
the first to an indeterminate penalty of from 10 years and 1 day of prision mayor to 17 years
4 months and 1 day of reclusion temporal, and the second to reclusion perpetua; both of
them to indemnify jointly and severally the heirs of Rodrigo Aringo in the sum of P6,000.00;
and each to pay 1/3 of the costs.

The prosecution, relying mainly on the testimony of two eyewitnesses — Celestino Atun and
Percival Amador — and of the policemen who went to the scene of the crime upon noticing
the commotion it produced, sought to establish the following: Between 1:00 and 2:00 o’clock
in the afternoon of March 27, 1962, some persons had a quarrel inside the New Bicol
Carinderia, an eatery located near the Legaspi Port Market, Legaspi City. After a short while
the protagonists came out through the backdoor of the carinderia. Jose Manansala had
Rodrigo in a tight embrace from behind, with his arms under the latter’s armpits. While
Rodrigo was in that position of apparent helplessness, Avelino stabbed him with a balisong,
or Batangas knife. The stabbing continued while Rodrigo was led, or dragged, by Jose to a
bamboo bed (papag) nearby, and even after Rodrigo had been forced down on it in a prone
position. When the policemen who responded to the commotion arrived they found Avelino
still holding the fatal weapon, and Rodrigo’s limp body, bathed in his own blood, stretched on
the papag. A taxicab was commandeered to take the wounded man to a hospital, but he
expired even before the vehicle could start. The autopsy Inter conducted by Dr. Antolin
Lotivio, a resident physician of the Albay Provincial Hospital, revealed that the victim died
from massive hemorrhage and shock as a result of the multiple wounds (thirteen in all)
sustained by him in the chest, abdomen, back and the extremities.

The accused did not take the witness stand. However, they presented two witnesses,
Domingo Daria and Salvador Petilos, who said that they saw the whole incident. The
substance of their testimony is as follows: Early in the afternoon of March 27, 1962 Avelino,
a small-time peddler of textiles in the Legaspi Port Market, was eating his lunch inside one of
the eateries dotting the market site, when Rodrigo Aringo alias Diego, a baggage boy in the
same market, approached him and demanded his fee for having carried Avelino’s baggage.
Avelino said he was willing to pay for the services rendered at noon, but not for those
rendered earlier in the morning. He then took some money from his pocket and proferred it to
Rodrigo. Obviously peeved at having been thus publicly rebuffed, Rodrigo brusquely brushed
Avelino’s hand aside and instantly gave him a fist blow in the face. Avelino fell from his seat;
he tried to get up, but was given another blow, and then a third. As he reeled from the force
of the last blow a batangas knife he was carrying fell from his trousers pocket. Avelino picked
up the knife, and Rodrigo, seeing that he was armed, rushed to the carinderia’s kitchen and
returned almost immediately with a 10-inch knife in his hand. With it he swung at his
antagonist, but the latter evaded the blow.

Meanwhile, appellant Jose Manansala, an uncle of Avelino, noticed the commotion from
outside the carinderia, where he was loading baggage on a parked truck some six meters
away. He shouted at Rodrigo to stop. Rodrigo paid no heed and instead delivered another
thrust at Avelino, who again evaded it. At the third attempt, Jose embraced Rodrigo from
behind, and it was at that moment that Avelino stabbed Rodrigo and inflicted the numerous
wounds which proved fatal. Jose took the kitchen knife from Rodrigo and threw it away, and
then released his limp body on the papag nearby. When the policemen arrived Avelino was
still clutching the knife he had used. Both appellants were apprehended.

In its decision rendered on August 14, 1964 the trial court sustained the prosecution’s
version of the incident and found both accused guilty of murder. However, the court credited
Avelino with the mitigating circumstance of sufficient provocation or threat on the part of the
victim, and imposed upon him a lesser penalty than that imposed on his uncle.

Appellants’ plea is self-defense. This is predicated on the theory that the deceased was
himself armed with a knife with which he tried to stab Avelino, as declared by the two
witnesses for the defense. Several circumstances, however, belie this claim. First, Avelino
sustained no knife wound at all. Second, although several policemen arrived at the scene of
the incident almost immediately after it happened, not one of them saw the knife allegedly
used by Rodrigo. Nor was it shown to them, or at least brought to their attention, by either of
the appellants. Indeed, when Avelino surrendered to the policemen he declined to give any
statement, which in the natural course of things he would have done if he had acted merely
to defend himself. A protestation of innocence or justification is the logical and spontaneous
reaction of a man who finds himself in such an inculpatory predicament as that in which the
policemen came upon the appellants, with Avelino still clutching the death weapon and his
victim dying before him.

But while it is clear that Avelino did not act in legitimate self-defense, the trial court correctly
held that there was sufficient provocation on the part of the victim. The evidence given by the
witnesses for the defense as to how and why the fight started, and as to the fact that the
deceased hit Avelino with his fist, is not controverted by the witnesses for the prosecution,
who did not see the incident from the very beginning. And one fist blow at least is confirmed
by the doctor who treated Avelino for a contusion around one eye.

On the other hand, the fact that when Avelino stabbed the victim the latter was practically
helpless and unable to put up any defense, being in the tight embrace of Jose Manansala,
was correctly appreciated by the trial court as treachery, and qualifies the offense as murder.

Jose Manansala was found guilty as co-principal on the ground that there was concert of
action between him and his nephew. The evidence does not justify this finding beyond
reasonable doubt. There is no showing that the killing was agreed upon between them
beforehand. No motive for it has been shown other than the provocation given by the
deceased; and such motive was true only insofar as Avelino was concerned. The
circumstances indicate that if Jose embraced Rodrigo and rendered him helpless, it was to
stop him from further hitting Avelino with his fists. However, Jose is not entirely free from
liability, for it has been established that even after the first knife thrust had been delivered he
did not try to stop Avelino, either by word or overt act. Instead Jose continued to hold
Rodrigo, even forced him down on the bamboo bed with Avelino still pressing the attack.
Withal it cannot be said that Jose’s cooperation was such that without it the offense would
not have been accomplished. But although not indispensable, it was a contributing factor. If
Jose’s initial intent was free from guilt, it became tainted after he saw the first knife thrust
delivered. The thirteen wounds must have taken an appreciable interval of time to inflict, and
Jose’s cooperation facilitated their infliction. He must therefore be held liable as an
accomplice.

The slaying of the deceased having been qualified by treachery, Avelino Manansala is liable
for murder, the penalty of which is reclusion temporal maximum to death (Art. 248, Revised
Penal Code). Appreciating in favor of Avelino the mitigating circumstance of sufficient
provocation by the deceased without any generic aggravating circumstance to offset the
same, the penalty imposable upon him is the minimum period of the penalty for murder (see
par. 3, Art. 63, Revised Penal Code), which is reclusion temporal maximum (17 years, 4
months and 1 day to 20 years). Since the resulting penalty is neither death nor life
imprisonment, the Indeterminate Sentence Law applies (Sec. 2, Act No. 4103 as amended).
Avelino Manansala is therefore entitled to an indeterminate sentence, the upper range of
which is reclusion temporal maximum and the lower range — which is one degree lower than
the penalty prescribed by the Revised Penal Code for murder — is anywhere within prision
mayor maximum (10 years and 1 day) to reclusion temporal medium (17 years and 4
months). The penalty meted out by the trial court on Avelino Manansala, Jr. — "from 10
years and 1 day of prision mayor to 17 years 4 months and 1 day of reclusion temporal" — is
within the range allowed by law and is therefore correctly imposed.

As regards appellant Jose Manansala, the penalty prescribed by law, he being an

accomplice, is one degree lower than that prescribed for the principal, or prision mayor
maximum to reclusion temporal medium (10) years and 1 day to 17 years and 4 months).
Applying the Indeterminate Sentence Law, and considering that under paragraph 1, Article
64 of the Revised Penal Code," (W)hen there are neither aggravating nor mitigating
circumstances, (the court) shall impose the penalty prescribed by law in its medium period,"
the decision appealed from should be, as it is hereby, modified as follows:chanrob1es virtual
1aw library

Appellant Jose Manansala, as accomplice to the offense of murder, is sentenced to an

indeterminate penalty of from 4 years, 2 months and 1 day of prision correccional to 12 years
and 1 day of reclusion temporal; the amount of the indemnity is raised from P6,000.00 to
P12,000.00 to be paid the heirs of the deceased by Avelino Manansala, Jr. as principal; in
case of the insolvency of the principal, Jose Manansala, as accomplice, is subsidiarily liable
for the indemnity due from said principal; and in all other respects the judgment appealed
from is affirmed. No costs in this instance.

Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Sanchez, Castro, Fernando, Teehankee,
Barredo and Villamor, JJ., concur.