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[G.R. No. 168818. March 9, 2007.]




TINGA , J : p

On January 17, 1997, in the midst of a drinking spree on the eve of the esta in
Liloan, Ormoc City, an intoxicated Nicanor Butad uttered the ominous words "I will shoot
you" to Randy Sabang, to the horror of young Sabang's father, Nilo, and the other
onlookers. Within moments, Butad himself lay dead from four gunshot wounds on his
body. Nilo Sabang, petitioner herein, who was charged with and later convicted for the
homicide, admits to the killing of Butad, but claims that the shooting was accidental and
done as a means of defending his son. An array of witnesses for the prosecution and the
defense provides a competing set of particulars as to the shooting. Ultimately, the
prosecution's version, supported by the physical evidence, stands out as the truth.
This much is admitted. At around 6:30 p.m. on that fateful night, petitioner and
Butad were having drinks together with spouses Cruz and Andresa Villamor outside the
store of Melania Sombilon in Sitio Landing, Barangay Liloan, Ormoc City. 1 Butad, a civilian
agent with the Philippine National Police, was then armed with a .38-caliber revolver which
was tucked in his holster. In the midst of the drinking spree, Randy Sabang suddenly and
unexpectedly appeared before the group. His appearance triggered a negative reaction
from Butad, who then uttered the words "I will shoot you" to Randy Sabang. 2
Certain circumstances attaching to this evident threat are disputed, as are the
events that consequently followed. What is certain is that shortly afterwards, Butad lay
dead, having sustained four (4) gunshot wounds from his own revolver. Petitioner appears
to have ed but voluntarily surrendered thereafter, turning over the revolver as he
surrendered. 3
Photographs of Butad as he lay dead on the scene were presented in evidence, 4 as
was the o cial report on his autopsy, prepared by the City Health O ce of Ormoc City.
The autopsy report 5 indicated the following findings:

Examined a fairly nourished/fairly developed male cadaver with

approximate height of 165 cm & weight of 65 kg in state of rigor mortis.

1. Bullet wound 1.0 x 0.5 cm at anterior chest wall, 14 cm from midline,
right, along 3rd intercostal space anterior axillary line penetrating
thoracic cavity lacerating upper lobe of right lung.

2. Bullet wound 0.7 x 0.5 cm at 4th intercostal space mid-axillary line,

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right, penetrating thoracic cavity lacerating upper lobe of right lung.

3. Bullet wound 1.5 x 0.7 cm at distal 3rd lateral aspect of right arm
injuring skin & muscles.

4. Bullet wound 0.7 cm x 0.7 cm at mid vertebral column fracturing

spine of 8th thoracic vertebra.

Hypovolemia 2° to multiple bullet wound.

During arraignment, petitioner pleaded innocence, but during the presentation of the
evidence for the defense, he claimed to have acted in defense of a relative. Petitioner and
four (4) other witnesses testi ed for the defense. The following facts were sought to be
established by petitioner: SEAHID

By the time Butad had joined what was to be his last drinking spree, he was already
in a belligerent mood. Earlier that afternoon, he had been chasing after Ramil Perez when
the latter demanded payment for a bet Butad had lost over a cockfight. 6
The chase was witnessed by Celso Pepito, who would testify for the defense. 7 As to
the shooting itself, testifying for the defense were petitioner himself, the storekeeper
Sombilon, and an eyewitness, Laurito Caparoso, who was situated right across the road
when the shooting occurred. HIcTDE

Sombilon testi ed that when Butad told Randy Sabang, "I will shoot you," the
deceased already had his revolver aimed at Randy. 8 At this point, Andresa Villamor, a niece
of the deceased, told Butad, "Please don't[,] tiyo, he's the son of Nilo." 9 Petitioner and
Caparoso also testi ed that at that time, Butad had his revolver pointed at Randy. 1 0
Petitioner claimed that he then grabbed the arm of Butad, attempting to twist it toward his
body and away from his son. As they were grappling and the revolver was pointed towards
the body of Butad, petitioner claimed he heard gunshots, and only after the shots were
red was he able to "take the gun" from Butad. 1 1 Petitioner's account is substantially
corroborated by Caparoso. 1 2
This version of the shooting, however, stands in sharp contrast to that presented by
the prosecution.
Natividad Payud, an eyewitness to the incident, testi ed that while the group of the
deceased Butad, petitioner, and the spouses Cruz and Andresa Villamor was having a
drinking spree, Randy suddenly entered the scene. Butad, appearing surprised, thrust a
glass of Tanduay near Randy's mouth and uttered the words, "I will shoot you." Payud is
certain that at this point, Butad was not holding any gun. 1 3 Andresa Villamor, another
eyewitness to the incident, con rmed Payud's testimony that Butad was holding a glass
and not a gun when he uttered those words. 1 4
Petitioner reacted to Butad's statement saying, "Just try to shoot my child because
I'll never ght for him because he is a spoiled brat." 1 5 Andresa Villamor then chided Butad
and said, "Do not say that tiyo[,] because it's [sic] the son of Nilo Sabang." 1 6 TAcSCH

Unexpectedly, a person appeared on the scene and punched Butad causing the latter
to fall down lying partially on his back. Petitioner, who was then sitting across Butad, stood
up and pulled the gun tucked in Butad's waist. He pointed the gun at Butad and red a shot
at the latter's chest. 1 7 Payud and Andresa Villamor both saw petitioner re two (2) more
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shots near Butad's chest. 1 8
In a Judgment 1 9 dated November 22, 1999, the trial court convicted petitioner
principally on the strength of the testimony of Dr. Edilberto P. Calipayan, the physician who
conducted the post mortem examination of Butad's body, to the effect that the absence of
powder burns indicates that the gunshots were red at a distance of more than 10 inches
from the victim's body and not close range as claimed by petitioner. 2 0
The Court of Appeals a rmed petitioner's conviction in a Decision 2 1 dated August
16, 2004 and denied reconsideration in a Resolution 2 2 dated July 6, 2005.
In this Petition, 2 3 petitioner prays for his acquittal contending that he acted in
defense of his son, a justifying circumstance under Art. 11 2 4 of the Revised Penal Code.
He claims that Butad's act of aiming a gun at his son while uttering the words "I will shoot
you" was an aggression of the most imminent kind which prompted him to try to wrestle
the gun from Butad leading to the accidental firing of the fatal shots.DcSTaC

Petitioner theorizes that the fact that Butad was then fully clothed could have
accounted for the absence of powder burns on Butad's body. He disputes the trial court's
nding that the wounds would have looked oblique had the shots been red during a
struggle, claiming that round entrance wounds could likewise be produced in near contact
He further avers that Payud was not really an eyewitness to the event, pointing to the
testimony of Benjamin Mahusay that he and Payud were already out of Sitio Landing and
were heading home when they heard the gunshots. Likewise, Andresa Villamor's testimony
is allegedly confined to seeing Butad sprawled on the ground.
The O ce of the Solicitor General insists on petitioner's conviction but asks that the
award of moral damages be reduced from P100,000.00 to P50,000.00. 2 5
We shall rst resolve the question of whether petitioner's insistence on the justifying
circumstance of defense of relative deserves merit. cIaHDA

In order to successfully claim that he acted in defense of a relative, the accused

must prove the concurrence of the following requisites: (1) unlawful aggression on the
part of the person killed or injured; (2) reasonable necessity of the means employed to
prevent or repel the unlawful aggression; and (3) the person defending the relative had no
part in provoking the assailant, should any provocation been given by the relative attacked.
2 6 Unlawful aggression is a primary and indispensable requisite without which defense of
relative, whether complete or otherwise, cannot be validly invoked. 2 7
It is well-settled in this jurisdiction that once an accused has admitted that he
in icted the fatal injuries on the deceased, it is incumbent upon him in order to avoid
criminal liability, to prove the justifying circumstance claimed by him with clear,
satisfactory and convincing evidence. He cannot rely on the weakness of the prosecution
but on the strength of his own evidence, "for even if the evidence of the prosecution were
weak it could not be disbelieved after the accused himself had admitted the killing." Thus,
petitioner must establish with clear and convincing evidence that the killing was justi ed,
and that he incurred no criminal liability therefor. 2 8
Unlawful aggression must be clearly established by the evidence. In this case, there
is a divergence in the testimonies of the prosecution and defense witnesses as to whether
Butad aimed a gun at petitioner's son as he uttered the words "I will shoot you." With this
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con ict emerges the question of whether petitioner sensed an imminent threat to his son's
life. Payud unequivocally testi ed that petitioner even dismissed Butad's utterance saying,
"Just try to shoot my child because I'll never fight for him because he is a spoiled brat."
This indicates to us that petitioner did not consider Butad's words a threat at all.
These circumstances led the trial court to conclude that there was no unlawful
aggression on the part of Butad which could have precipitated petitioner's actions. This
nding, a rmed by the Court of Appeals, is conclusive on the Court barring any showing of
any arbitrariness or oversight of material facts that could change the result. 2 9

Furthermore, the presence of four (4) gunshot wounds on Butad's body negates the
claim that the killing was justi ed but instead indicates a determined effort to kill him.
Even assuming that it was Butad who initiated the attack, the fact that petitioner was able
to wrest the gun from him signi es that the aggression which Butad had started already
ceased. Petitioner became the unlawful aggressor when he continued to shoot Butad even
as he already lay defenseless on the ground. 3 0 EISCaD

On this point, the defense's own witness, Caparoso, said in his Counter A davit 3 1
and during direct examination that after the rst shot was red, he saw petitioner take
possession of the gun as Butad released his hold of it. It was after petitioner already had
the gun that Caparoso heard more gunshots. 3 2 Even petitioner admitted that he had an
easy time twisting the hand with which Butad was supposedly holding his revolver
because the latter was already very drunk having started drinking before noon that day. 3 3
Another crucial point to consider is that the prosecution's theory is consistent with
the physical evidence.
The distance from which a shot is red affects the nature and extent of the injury
caused on the victim. In close range re, the injury is not only due to the missile but also
due to the pressure of the expanded gases, ame and other solid products of combustion.
In contrast, distant re usually produces the characteristic effect of the bullet alone. 3 4 A
shot red from a distance of more than 60 cm or about two (2) feet does not produce the
burning, smudging or tattooing typically present in loose contact or near re, short range
fire and medium range fire. 3 5
Powder burns is a term commonly used by physicians whenever there is blackening
of the margin at the entrance of the gunshot wound. The blackening is due to smoke
smudging, gunpowder tattooing and, to a certain extent, burning of the wound margin. 3 6
As found by the medico-legal o cer in this case, Butad's body did not have any powder
burns. In response to the court's queries, Dr. Calipayan testified:
Q Being an expert, is it a scientific fact that every gun burst within ten (10)
inches distance as you said, is it always a fact that there is presence of
powder burns?

A It is always a fact, if the caliber of the firearm is higher or I can say, may be
.22 caliber as well as there is a gun powder that burst. If it is fired about
less than ten (10) inches from the surface of the skin, it will always cause
powder burns.

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Q And in this case, you cannot indicate the presence of powder burns?
A Because I did not find any. 3 7

The fact that there were no powder burns on Butad's body indicates that the shots
were red at a distance of more than two (2) feet and not at close range as the defense
suggests. Moreover, Butad sustained four (4) gunshot wounds, three (3) of which were in
the chest area, circumstances which are inconsistent with the defense's theory of
accidental firing. 3 8 ScaEIT

On the credibility of the prosecution's witnesses, the defense questions Payud's

testimony averring that its witness, Benjamin Mahusay, testi ed that he and Payud were
already on their way home when they heard the gunshots. According to Mahusay, he
attended a cock ght which ended at 5 o'clock in the afternoon of January 17, 1997. He
went home afterwards and claimed to have met Payud on the way home at around 5 in the
afternoon. 3 9 It was at this time that he and Payud supposedly heard gunshots.
Mahusay's account, however, con icts with the established fact that Butad was shot
to death at around 6:30 that night. His testimony all the more loses signi cance in the face
of Payud's compelling testimony that she went back to Sitio Landing to fetch her children
and witnessed the killing. 4 0
Moreover, it is not true, as the defense insists, that Andresa Villamor did not witness
the actual shooting. She unequivocally testi ed that she turned back and saw Sabang take
the pistol from Butad and point the gun at the latter. She instinctively covered her eyes
shouting, "Do not shoot my uncle!" She uncovered her eyes after hearing the rst gunshot,
saw petitioner still pointing the gun at Butad, and watched as petitioner shot Butad two (2)
more times. 4 1
In the nal analysis, petitioner failed to demonstrate any reason to disturb the
ndings and conclusions of the trial court and the Court of Appeals. His conviction of the
crime of homicide is certain. Under Art. 249 of the Revised Penal Code, homicide is
punished by reclusion temporal. There being one (1) mitigating circumstance of voluntary
surrender, the penalty shall be imposed in its minimum period. 4 2 Applying the bene ts of
the Indeterminate Sentence Law, the trial court correctly imposed an indeterminate penalty
ranging from eight (8) years and one (1) day of prision mayor as minimum to twelve (12)
years and one (1) day of reclusion temporal as maximum.
As regards the matter of damages, we a rm the award of civil indemnity in the
amount of P50,000.00 for the heirs of Butad in line with recent jurisprudence. Civil
indemnity is mandatory and is granted to the heirs of the victim without need of proof
other than the commission of the crime. 4 3 We also a rm the award of P180,000.00
representing loss of earning capacity at a reasonable life expectancy of three (3) years
considering that Butad was already 67 years old at the time of the incident. 4 4 Likewise
a rmed are the award of P50,000.00 as burial expenses duly proven, attorney's fees of
P40,000.00, and appearance fee of P1,000.00 per hearing.
We, however, agree with the O ce of the Solicitor General that consistent with
pertinent jurisprudence, the award of moral damages should be reduced from
P100,000.00 to P50,000.00. 4 5 Finally, in the absence of any aggravating circumstance, the
trial court correctly withheld the award of exemplary damages. 4 6 TDcAaH

WHEREFORE, the instant petition is DENIED for lack of merit. The assailed Decision
of the Court of Appeals dated August 16, 2004 and its Resolution dated July 6, 2005,
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a rming the Judgment rendered by the Regional Trial Court dated November 26, 1999,
are AFFIRMED with the MODIFICATION that the award of moral damages is reduced to
P50,000.00. Costs against petitioner. CIAHDT

Quisumbing, Carpio, Carpio-Morales and Velasco, Jr., JJ., concur.

1. TSN, May 28, 1999, pp. 6-10, 15; August 21, 1997, p. 8.
2. TSN, August 21, 1997, pp. 8-9.

3. TSN, May 28, 1999, p. 30.

4. Records, pp. 160-161.
5. Id. at 159.
6. TSN, May 28, 1999, pp. 13-14.
7. TSN, December 4, 1998, pp. 8-9.

8. TSN, February 11, 1999, p. 15.

9. Id. at 16.
10. TSN, August 24, 1998, p. 16; May 28, 1999, p. 21.
11. TSN, May 28, 1999, pp. 28-30.
12. TSN, August 24, 1998, pp. 17-20.

13. TSN, August 21, 1997, pp. 8-9.

14. TSN, June 16, 1997, p. 10.
15. TSN, August 21, 1997, p. 10.
16. TSN, June 16, 1997, p. 11; August 21, 1997, p. 10.

17. TSN, August 21, 1997, pp. 11-13.

18. Id. at 13; TSN, June 16, 1997, pp. 14-15.
19. Records, pp. 406-410. The dispositive portion of the Judgment reads:
Wherefore, the Court finds the accused Nilo Sabang GUILTY beyond reasonable doubt of
the crime of homicide as charged, and hereby penalizes him after appreciating one
mitigating circumstance of voluntary surrender, to an indeterminate imprisonment of 8
years and 1 day prision mayor as minimum to 12 years and 1 day reclusion temporal as
maximum, and to pay the offended party the sum of P50,000.00 as indemnity; sum of
P50,000.00 as burial expense; the sum of P180,000.00 as loss of income at a
reasonable life expectancy of the victim at 3 years; the sum of P100,000.00 for moral
damages; and P40,000.00 as attorney's fees including P1,000.00 per appearance.
If the accused was detained, the period of his detention shall be credited to him in full if he
abides by the terms for convicted prisoners, for only 4/5 thereof.
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20. TSN, August 4, 1999, pp. 12-17.

21. Rollo, pp. 30-38; Penned by Associate Justice Pampio A. Abarintos and concurred in by
Associate Justices Mercedes Gozo-Dadole and Ramon M. Bato, Jr.
22. Id. at 39-40.
23. Id. at 3-29.
24. Art. 11. Justifying circumstances. — The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.
2. Anyone who acts in defense of the person or rights of his spouses, ascendants,
descendants, or legitimate, natural, or adopted brothers or sisters or his relatives by
affinity in the same degrees, and those 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.
25. Rollo, pp. 55-69.
27. People v. Ventura, G.R. Nos. 148145-46, July 5, 2004, 433 SCRA 389, 409.
28. Cabuslay v. People, G.R. No. 129875, September 30, 2005, 471 SCRA 241, 256-257.
29. People v. Alba, 425 Phil. 666 (2002).
30. People v. Barnuevo, 418 Phil. 521 (2001).
31. Records, p. 25.
32. TSN, August 24, 1998, p. 20.
33. TSN, May 28, 1999, pp. 38 and 44.

34. PEDRO P. SOLIS, LEGAL MEDICINE (1987), p. 354.

35. Id. at 357-358. A short range fire covers a distance of 1 to 15 cm while a medium range
fire covers a distance of more than 15 cm but less than 60 cm.
36. Id. at 350.
37. TSN, August 4, 1999, pp. 15-16.
38. PEDRO P. SOLIS, LEGAL MEDICINE, supra note 34 at 354.

39. TSN, May 5, 1998, pp. 8-10, 18.

40. TSN, August 21, 1997, pp. 6-7.
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41. TSN, June 16, 1997, pp. 13-15; 36-37.

42. REVISED PENAL CODE, Art. 64(2).

43. People v. Opuran, G.R. Nos. 147674-75, March 17, 2004, 425 SCRA 654, 673.
44. Butad's widow testified that his income is P5,000.00 a month; RTC Records, p. 408.
45. Marzonia v. People, G.R. No. 153794, June 26, 2006, 492 SCRA 627.
46. CIVIL CODE, Art. 2230.

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