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GR# 191721; JANUARY 12, 2011

The Facts

On November 15, 2006, Dolorido was arraigned, and he pleaded “not guilty” to the crime charged.

During the pre-trial conference on January 18, 2007, Dolorido admitted that he killed the deceased-victim Daniel Estose but
invoked self-defense. Likewise, the prosecution and the defense stipulated that the Joint Affidavit of Aniolito Avila and
Adrian Avila (the Avilas) would constitute as their direct testimony, subject to cross-examination by the defense; and the
Counter Affidavit of the Accused and the Affidavit of Mario Jariol would also constitute as their direct testimony, subject to
cross examination by the prosecution.

During the trial, the prosecution offered the testimonies of the Avilas and Loreta Estose. On the other hand, the defense
presented, as its sole witness, accused-appellant Dolorido.

The Prosecution’s Version of Facts

The Avilas were hired laborers of the victim, Estose, tasked to harvest the coconuts in the latter’s farm in Cagdapao, Tago,
Surigao del Sur.

On May 9, 2006, while the Avilas were walking towards the coconut plantation at around 8:30 in the morning, they saw
Dolorido standing near the coconut drier of Estose, appearing very angry. After some time, Dolorido proceeded to Rustica
Dolorido’s coconut drier located a hundred meters away and hid behind a coconut tree.

Moments later, they saw Estose on his way to his own coconut drier. When Estose passed by Rustica Dolorido’s coconut
drier, they saw Dolorido suddenly hack Estose twice, resulting in wounds on his arms. When Estose tried to retreat, he fell
down and it was then that Dolorido stabbed him on the left portion of his chest, which caused his death. Dolorido suddenly
left the place.

Afraid of Dolorido’s wrath, the Avilas did not immediately proceed to the scene of the crime. It was only after 20 or so
minutes that they felt it was safe to approach Estose. When they were near, they saw Estose was already dead. They then
waited for Estose’s wife and the police.

Version of the Defense

Dolorido’s defense, on the other hand, consisted of the story of self-defense:

On the day of the death of the victim, Dolorido asked Estose why he was gathering Dolorido’s harvested coconuts. Estose
just replied, “So, what about it?” and tried to unsheathe his bolo from its scabbard. Upon seeing this, Dolorido drew his own
bolo and stabbed Estose. When Estose tried to wrestle for the bolo, he sustained some wounds. Afterwards, while Dolorido
was pointing the bolo at Estose, the latter suddenly lunged at Dolorido, causing Estose to hit the bolo with his own chest
which resulted in his death. He denied the prosecutor’s claim that he hid behind a coconut tree and waited for Estose to
come. Thereafter, Dolorido, accompanied by one Mario Jariol, voluntarily surrendered to the Tago Police Station.

Rulings of the Trial and Appellate Court:

The accused Rogelio Dolorido y Estrada was found guilty beyond reasonable doubt of the crime of MURDER qualified by
treachery, and appreciating in his favor the mitigating circumstance of voluntary surrender, without any aggravating
circumstance to offset the same. He was made to suffer the penalty of Reclusion Perpetua.

On November 27, 2009, the CA affirmed in toto the judgment of the RTC.

The Issues raised by the accused:

1. The court gravely erred in not appreciating self-defense interposed by accused.

2. The court gravely erred in convicting the accused despite the failure of the prosecution to prove the elements of

The SC said: The contentions of the accused have no merit.

Basis of the decision:

1. Self-defense is absent
The accused argues that the trial court failed to consider the circumstance of unlawful aggression on the part of the victim.
He contends that he only acted in self-defense, and this is the reason why he voluntarily surrendered to the authorities.

The SC did not agree.

In order for self-defense to be successfully invoked, the following essential elements must be proved: (1) unlawful
aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel such aggression;
and (3) lack of sufficient provocation on the part of the person resorting to self-defense.

A person who invokes self-defense has the burden of proof of proving all the elements. However, the most important among
all the elements is the element of unlawful aggression. Unlawful aggression must be proved first in order for self-defense to
be successfully pleaded, whether complete or incomplete. As the SC said in People v. Catbagan. “There can be no self-
defense, whether complete or incomplete, unless the victim had committed unlawful aggression against the person who
resorted to self-defense.”

Accused’s plea failed to impress the Court. His story on how the deceased was killed is too incredible to inspire belief.
According to him, it was the deceased who first unsheathed his bolo but did not succeed in his attempt to fully unsheathe it
because he (Accused) hacked him. Thereafter, the deceased tried to wrest accused’s bolo but was injured instead. If the
deceased failed to unsheathe his bolo because accused was able to hack him, how could the deceased then have
attempted to dispossess the accused of the latter’s bolo? The truth, of course, is that the accused waylaid the deceased, as
testified to by the prosecution witnesses.

Unlawful aggression is an actual physical assault, or at least a threat to inflict real imminent injury, upon a person. In case of
threat, it must be offensive and strong, positively showing the wrongful intent to cause injury. It “presupposes actual,
sudden, unexpected or imminent danger – not merely threatening and intimidating action.” It is present “only when the one
attacked faces real and immediate threat to one’s life.” Such is absent in the instant case.

Indeed, it is a well-settled rule that “a plea of self-defense cannot be justifiably entertained where it is not only
uncorroborated by any separate competent evidence but is also extremely doubtful in itself.” Moreover, “absent any showing
that the prosecution witnesses were moved by improper motive to testify against the accused, their testimonies are entitled
to full faith and credit.”

Therefore, absent any unlawful aggression from the victim, accused cannot successfully invoke the defense of self-defense.

2. Treachery is evident

In addition, accused argues that the trial court should not have appreciated treachery as a qualifying circumstance. He
argues that it was impossible for the two prosecution witnesses to see the inception and the actual attack of accused-
appellant to the victim because both were busy gathering coconuts. Also, they were 50 meters away from where the actual
stabbing occurred, in rolling hills with tall and short shrubs between the witnesses and the place where the actual stabbing

The Court disagreed.

Paragraph 16 of Article 14 of the Revised Penal Code (RPC) defines treachery as the direct employment of means,
methods, or forms in the execution of the crime against persons which tend directly and specially to insure its execution,
without risk to the offender arising from the defense which the offended party might make. In order for treachery to be
properly appreciated, two elements must be present: (1) at the time of the attack, the victim was not in a position to defend
himself; and (2) the accused consciously and deliberately adopted the particular means, methods or forms of attack
employed by him. The “essence of treachery is the sudden and unexpected attack by an aggressor on the unsuspecting
victim, depriving the latter of any chance to defend himself and thereby ensuring its commission without risk of himself.”

In the case at bar, it was clearly shown that Estose was deprived of any means to ward off the sudden and unexpected
attack by accused-appellant. The evidence showed that accused-appellant hid behind a coconut tree and when Estose
passed by the tree, completely unaware of any danger, accused-appellant immediately hacked him with a bolo. Estose
could only attempt to parry the blows with his bare hands and as a result, he got wounded. Furthermore, when Estose tried
to retreat, stumbling in the process, accused even took advantage of this and stabbed him resulting in his death. Evidently,
the means employed by accused assured himself of no risk at all arising from the defense which the deceased might make.
What is decisive is that the attack was executed in a manner that the victim was rendered defenseless and unable to
retaliate. Without a doubt, treachery attended the killing.

In conclusion, all the elements of the crime of murder, as defined in paragraph 1 of Art. 248 of the RPC, were successfully
proved: (1) that a person was killed; (2) that the accused killed that person; (3) that the killing was attended by treachery;
and (4) that the killing is not infanticide or parricide.
ALMEDA VS CA 80 SCRA 575 (1997)
[G.R. NO. 120853. MARCH 13, 1997]

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

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

Unknown to the Salabao brothers, during the past hour, Herrera had himself been arguing with Vice Governor Acosta
because of the latter's accusation that Herrera was involved in anomalous transactions.

A short time after the Salabao brothers had seated themselves, Herrera's argument with Acosta resumed. At this juncture
Acosta stood up, presumably to pay for the beer he had ordered, and whispered something to Almeda. Almeda promptly
grabbed the barrel of the armalite rifle which Cbl. Salabao carried with him and pushed it down. Simultaneously, Almeda
pulled out his .45 caliber pistol pointed it at Cbl. Salabao's head and shot the latter in the left temple. As Cbl. Salabao
staggered Almeda fired five more shots against the former. After which Almeda picked up Cbl. Salabao's armalite, cocked it
and then pointed it at Donato Salabao who immediately raised his hands. Almeda then left along with the Vice Governor
and his companions. The following day, at approximately 7:00 o'clock in the morning, Almeda was arrested by a group of
PC Constables.

Lower Court: Petitioner was convicted of homicide.

On appeal, the issues raised by appellant were:

That the Trial Court should have appreciated in his favor the:

A. Justifying circumstance of Defense of Strangers, or at least the

B. Mitigating Circumstances of:

a. Sufficient provocation
b. Voluntary surrender

The SC said: It upheld the decision of the Trial Court.

Basis of Decision:

A. On the Justifying Circumstance of DEFENSE OF STRANGERS:

A party who invokes the justifying circumstance of defense of strangers has the burden of proving by clear and convincing
evidence the exculpatory cause that would save him from conviction. He must rely on the strength of his own evidence and
not on the weakness of the evidence for the prosecution for even if the latter's evidence is weak, it cannot be disbelieved
and will not exculpate the former from his categorical admission as the author of the killing.

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

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

This circumstance of defense of strangers has three requisites:

(1) unlawful aggression;

(2) reasonable necessity of the means employed to prevent or repel it; and
(3) the person defending be not induced by revenge, resentment, or other evil motive.

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

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

Moreover, the number, location and severity of the fatal wounds suffered by the victim belie the claim of defense of stranger
but is indicative of a determined effort to kill.

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

B. On the Mitigating Circumstance of VOLUNTARY SURRENDERED:

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


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

The present controversy arose from a letter of Atty. David B. Loste, President of the Eastern Samar Chapter of the
Integrated Bar of the Philippines (IBP), to the Office of the Ombudsman, praying for an investigation into the alleged transfer
of then Mayor Francisco Adalim, an accused in a murder case, from the provincial jail of Eastern Samar to the residence of
petitioner, then Governor Ruperto A. Ambil, Jr. The National Bureau of Investigation (NBI) recommended the filing of
criminal charges against petitioner Ambil, Jr. for violation of Section 3(e) of Republic Act (R.A.) No. 3019, otherwise known
as the Anti-Graft and Corrupt Practices Act.

These are the facts antecedent:

That on or about the 6th day of September 1998, in the Municipality of Borongan, Province of Eastern Samar, the accused,
Ruperto A. Ambil, Jr., being then the Provincial Governor, and Alexandrino R. Apelado, being then the Provincial Warden,
both having been public officers, conniving and mutually helping each other, ordered and caused the release from the
Provincial Jail of detention prisoner Mayor Francisco Adalim, accused for a Murder case. Apelado, using the powers of his
office allowed Mayor Adalim to be released from his custody and stay instead at accused Ambil’s residence for a period of
Eighty-Five (85) days, which act was done without any court order. Thus, Ambil had given unwarranted benefits and
advantage to detainee Mayor Francisco Adalim.

At the pre-trial, petitioners admitted the allegations in the Information. They reason, however, that Adalim’s transfer was
justified considering the imminent threats upon his person and the dangers posed by his detention at the provincial jail.
According to petitioners, Adalim’s sister, Atty. Juliana A. Adalim-White, had sent numerous prisoners to the same jail where
Mayor Adalim was to be held.

He cites poor security in the provincial jail as the primary reason for taking personal custody of Adalim considering that the
latter would be in the company of inmates who were put away by his sister and guards identified with his political opponents.
At one time, he also noticed a prisoner, Roman Akyatan, gesture to him with a raised clenched fist. Sensing danger, he
called on his sister for help.

Petitioner Apelado, Sr. testified that he was the Provincial Jail Warden of Eastern Samar. He recalls that on September 6,
1998, SPO3 Felipe Balano fetched him at home to assist in the arrest of Mayor Adalim. Allegedly, Atty. White was contesting
the legality of Mayor Adalim’s arrest and arguing with the jail guards against booking him for detention. At the provincial jail,
petitioner was confronted by Atty. White who informed him that he was under the governor, in the latter’s capacity as a
provincial jailer. Petitioner claims that it is for this reason that he submitted to the governor’s order to relinquish custody of

Further, petitioner Apelado, Sr. described the physical condition of the jail to be dilapidated and undermanned. According to
him, only two guards were in charge of looking after 50 inmates. There were two cells in the jail, each housing 25 inmates,
while an isolation cell of 10 square meters was unserviceable at the time.

On September 16, 2005, the Sandiganbayan, First Division, found petitioners guilty of violating Section 3(e) of R.A. No.
3019. The court ruled that in moving Adalim to a private residence, petitioners have conspired to accord him unwarranted
benefits in the form of more comfortable quarters with access to television and other privileges that other detainees do not
enjoy. It stressed that under the Rules, no person under detention by legal process shall be released or transferred except
upon order of the court or when he is admitted to bail.

The Sandiganbayan brushed aside petitioners’ defense that Adalim’s transfer was made to ensure his safety. It observed
that petitioner Ambil, Jr. did not personally verify any actual threat on Adalim’s life but relied simply on the advice of Adalim’s
lawyers. The Sandiganbayan also pointed out the availability of an isolation cell and nipa huts within the 10-meter-high
perimeter fence of the jail which could have been used to separate Adalim from other prisoners. Finally, it cited petitioner
Ambil, Jr.’s failure to turn over Adalim despite advice from Assistant Secretary Jesus Ingeniero of the Department of Interior
and Local Government.


1. Petitioner Ambil, Jr. advance this argument:

He entitled to the Justifying Circumstance of Fulfillment of Duty under Article 11(5) of the RPC.

2. For his part, petitioner Apelado, Sr. advance this argument:

He is entitled to the Justifying Circumstance of Obedience to an Order Issued by a Superior for some Lawful Purpose under
Article 11(6) of the RPC.

The SC said: The Court found no merit on the issues raised by both the accused.
Basis for the Decision:

1. Petitioner Ambil claims he is entitled to the Justifying Circumstance of Fulfillment of Duty. Significantly
though, it is the provincial government and not the governor alone which has authority to exercise control and supervision
over provincial jails. In any case, neither of said powers authorizes the doing of acts beyond the parameters set by law. If
such, then there is “partiality,” “bad faith” and “gross negligence.”

“Partiality” is synonymous with “bias” which “excites a disposition to see and report matters as they are wished for rather
than as they are.” “Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some
moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes
of the nature of fraud.”

In this case, there was manifest partiality and evident bad faith in transferring the detention of Mayor Adalim to petitioner
Ambil, Jr.’s house. There is no merit to petitioner Ambil, Jr.’s contention that he is authorized to transfer the detention of
prisoners by virtue of his power as the “Provincial Jailer” of Eastern Samar.

In particular, Section 61, Chapter 5 of R.A. No. 6975 on the Bureau of Jail Management and Penology provides:

Sec. 61. Powers and Functions. - The Jail Bureau shall exercise supervision and control over all city and municipal jails.
The provincial jails shall be supervised and controlled by the provincial government (NOT the Provincial Governor)
within its jurisdiction…”

The power of control is the power of an officer to alter or modify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for that of the latter. An officer in control lays down
the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his
subordinate or he may even decide to do it himself.

On the other hand, the power of supervision means “overseeing or the authority of an officer to see to it that the subordinate
officers perform their duties.” If the subordinate officers fail or neglect to fulfill their duties, the official may take such action or
step as prescribed by law to make them perform their duties. Essentially, the power of supervision means no more than the
power of ensuring that laws are faithfully executed, or that subordinate officers act within the law. The supervisor or
superintendent merely sees to it that the rules are followed, but he does not lay down the rules, nor does he have discretion
to modify or replace them.

2. Petitioner Apelado Sr., on the other hand, denies allegations of conspiracy between him and petitioner
Ambil, Jr. Petitioner Apelado, Sr. defends that he was merely following the orders of a superior when he transferred the
detention of Adalim. And thus, he invokes immunity from criminal liability. He invokes the justifying circumstance of
obedience to an order issued for some lawful purpose. Under paragraph 6, Article 11 of the RPC, any person who acts in
obedience to an order issued by a superior for some lawful purpose does not incur any criminal liability. For this justifying
circumstance to apply, the following requisites must be present: (1) an order has been issued by a superior; (2) such order
must be for some lawful purpose; and (3) the means used by the subordinate to carry out said order is lawful. Only the first
requisite is present in this case.

While the order for Adalim’s transfer emanated from petitioner Ambil, Jr., who was then Governor, neither said order nor the
means employed by petitioner Apelado, Sr. to carry it out was lawful. In his capacity as the Provincial Jail Warden of Eastern
Samar, petitioner Apelado, Sr. fetched Mayor Adalim at the provincial jail and, unarmed with a court order, transported him
to the house of petitioner Ambil, Jr. This makes him liable as a principal by direct participation under Article 17(1) of the