G.R. Nos. L-33466-67 April 20, 1983
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
MAMERTO NARVAEZ, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.
MAKASIAR, J.:
This is an appeal from the decision of the Court of First Instance of
South Cotabato, Branch I, in Criminal Cases Nos. 1815 and 1816
for murder which, after a joint trial, resulted in the conviction of the
accused in a decision rendered on September 8, 1970, with the
following pronouncement:
Thus, we have a crime of MURDER qualified by
treachery with the aggravating circumstance of
evident premeditation offset by the mitigating
circumstance of voluntary surrender. The proper
penalty imposable, therefore, is RECLUSION
PERPETUA (Arts. 248 and 64, Revised Penal
Code).
Accordingly, finding Mamerto Narvaez guilty beyond
reasonable doubt of the crime of murder,
(a) In Criminal Case No. 1815, he is hereby
sentenced to RECLUSION PERPETUA, to
indemnify the heirs of the deceased Davis Q.
Fleischer in the sum of P 12,000.00 as
compensatory damages, P 10,000.00 as moral
damages, P 2,000.00 as attorney's fees, the
offended party having been represented by a private
prosecutor, and to pay the costs;
(b) In Criminal Case No. 1816, he is hereby
sentenced to RECLUSION PERPETUA, to
indemnify the heirs of the deceased Flaviano Rubia
in the sum of P12,000.00 as compensatory
damages, P10,000.00 as moral damages,
P2,000.00 as attorney's fees, the offended party
having been represent by a private prosecutor, and
to pay the costs (p. 48, rec.).
The facts are summarized in the People's brief, as follows:
At about 2:30 in the afternoon of August 22, 1968,
Graciano Juan, Jesus Verano and Cesar Ibanez
together with the two deceased Davis Fleischer and
Flaviano Rubia, were fencing the land of George
Fleischer, father of deceased Davis Fleischer. The
place was in the boundary of the highway and the
hacienda owned by George Fleischer. This is
located in the municipality of Maitum, South
Cotabato. At the place of the fencing is the house
and rice drier of appellant Mamerto Narvaez (pp.
179-182, t.s.n., Pieza II). At that time, appellant was
taking his rest, but when he heard that the walls of
his house were being chiselled, he arose and there
he saw the fencing going on. If the fencing would go
on, appellant would be prevented from getting into
his house and the bodega of his ricemill. So he
addressed the group, saying 'Pare, if possible you
stop destroying my house and if possible we will talk
it over what is good,' addressing the deceased
Rubia, who is appellant's compadre. The deceased
Fleischer, however, answered: 'No, gademit,
proceed, go ahead.' Appellant apparently lost his
equilibrium and he got his gun and shot Fleischer,
hitting him. As Fleischer fell down, Rubia ran
towards the jeep, and knowing there is a gun on the
jeep, appellant fired at Rubia, likewise hitting him
(pp. 127-133, t.s.n., Defense transcript). Both
Fleischer and Rubia died as a result of the shotting'
(pp. 9-14, t.s.n., Pieza I, pp. 8-9, Appellant's Brief,
p.161, rec.).
It appears, however, that this incident is intertwined with the long
drawn out legal battle between the Fleischer and Co., Inc. of which
deceased Fleischer was the secretary-treasurer and deceased
Rubia the assistant manager, on the one hand, and the land settlers
of Cotabato, among whom was appellant.
From the available records of the related cases which had been
brought to the Court of Appeals (CA-G.R. Nos. 28858-R and 50583R) and to this Court on certiorari (G.R. No. L-26757 and L-45504),
WE take judicial notice of the following antecedent facts:
Appellant was among those persons from northern and central
Luzon who went to Mindanao in 1937 and settled in Maitum, a
former sitio of Kiamba and now a separate municipality of South
Cotabato. He established his residence therein, built his house,
cultivated the area, and was among those who petitioned then
President Manuel L. Quezon to order the subdivision of the defunct
Celebes Plantation and nearby Kalaong Plantation totalling about
2,000 hectares, for distribution among the settlers.
Shortly thereafter, Fleischer and Company, headed by George W.
Fleischer, an American landowner in Negros Oriental, filed sales
application No. 21983 on June 3, 1937 over the same area formerly
leased and later abandoned by Celebes Plantation Company,
covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land surveyor
did the actual survey in 1941 but the survey report was not
submitted until 1946 because of the outbreak of the second world
war. According to the survey, only 300 hectares Identified as Lots
Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside for Sales
Application No. 21983, while the rest were subdivided into sublots
of 5 to 6 hectares each to be distributed among the settlers (pp. 3233, G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer
and Company was declared open for disposition, appraised and
advertised for public auction. At the public auction held in Manila on
August 14, 1948, Fleischer and Company was the only bidder for
P6,000.00. But because of protests from the settlers the
corresponding award in its favor was held in abeyance, while an
investigator was sent by the Director of Lands to Kiamba in the
person of Atty. Jose T. Gozon Atty. Gozon came back after ten
days with an amicable settlement signed by the representative of
the settlers. This amicable settlement was later repudiated by the
settlers, but the Director of Lands, acting upon the report of Atty.
Gozon, approved the same and ordered the formal award of the
land in question to Fleischer and Company. The settlers appealed
to the Secretary of Agriculture and Natural Resources, who,
however, affirmed the decision in favor of the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court
of First Instance of Cotabato which then consisted only of one sala,
for the purpose of annulling the order of the Secretary of Agriculture
and Natural Resources which affirmed the order of the Director of
Lands awarding the contested land to the company. The settlers as
plaintiffs, lost that case in view of the amicable settlement which
they had repudiated as resulting from threats and intimidation,
deceit, misrepresentation and fraudulent machination on the part of
the company. They appealed to the Court of Appeals (CA-G.R. No.
28858-R) which likewise affirmed on August 16, 1965 the decision
of the Court of First Instance in favor of the company.
This resulted in the ouster of the settlers by an order of the Court of
First Instance dated September 24, 1966, from the land which they
had been occupying for about 30 years. Among those ejected was
the appellant who, to avoid trouble, voluntarily dismantled his
house, built in 1947 at a cost of around P20,000.00, and transferred
to his other house which he built in 1962 or 1963 near the highway.
The second house is not far from the site of the dismantled house.
Its ground floor has a store operated by Mrs. June Talens who was
renting a portion thereof. He also transferred his store from his
former residence to the house near the highway. Aside from the
store, he also had a rice mill located about 15 meters east of the
house and a concrete pavement between the rice mill and the
house, which is used for drying grains and copra.
In view of the obvious fact that you do not comply
with the agreement, I have no alternative but to
terminate our agreement on this date.
On November 14, 1966, appellant was among the settlers on whose
behalf Jose V. Gamboa and other leaders filed Civil Case No. 755
in the Court of First Instance of Cotabato, Branch I. to obtain an
injunction or annulment of the order of award with prayer for
preliminary injunction. During the pendency of this case, appellant
on February 21, 1967 entered into a contract of lease with the
company whereby he agreed to lease an area of approximately 100
to 140 square meters of Lot No. 38 from the company (Exh. 9, p. 1,
Folder of Exhibits for Defense) for a consideration of P16.00
monthly. According to him, he signed the contract although the
ownership of the land was still uncertain, in order to avoid trouble,
until the question of ownership could be decided. He never paid the
agreed rental, although he alleges that the milling job they did for
Rubia was considered payment. On June 25, 1968, deceased
Fleischer wrote him a letter with the following tenor:
On August 21, 1968, both deceased, together with their laborers,
commenced fencing Lot 38 by putting bamboo posts along the
property line parallel to the highway. Some posts were planted right
on the concrete drier of appellant, thereby cutting diagonally across
its center (pp. 227-228, t.s.n., Vol. 2), with the last post just adjacent
to appellant's house (p. 231, t.s.n., supra). The fence, when
finished, would have the effect of shutting off the accessibility to
appellant's house and rice mill from the highway, since the door of
the same opens to the Fleischers' side. The fencing continued on
that fateful day of August 22, 1968, with the installation of four
strands of barbed wire to the posts.
You have not paid six months rental to Fleischers &
Co., Inc. for that portion of land in which your house
and ricemill are located as per agreement executed
on February 21, 1967. You have not paid as as
even after repeated attempts of collection made by
Mr. Flaviano Rubia and myself.
I am giving you six months to remove your house,
ricemill, bodega, and water pitcher pumps from the
land of Fleischers & Co., Inc. This six- month period
shall expire on December 31, 1966.
In the event the above constructions have not been
removed within the six- month period, the company
shall cause their immediate demolition (Exhibit 10,
p. 2, supra).
At about 2:30 p.m. on the said day, appellant who was taking a nap
after working on his farm all morning, was awakened by some noise
as if the wall of his house was being chiselled. Getting up and
looking out of the window, he found that one of the laborers of
Fleischer was indeed chiselling the wall of his house with a crowbar
(p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing the barbed
wire and deceased Fleischer was commanding his laborers. The
jeep used by the deceased was parked on the highway. The rest of
the incident is narrated in the People's Brief as above-quoted.
Appellant surrendered to the police thereafter, bringing with him
shotgun No. 1119576 and claiming he shot two persons (Exh. Pp.
31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning
the following errors:
First Assignment of Error: That the lower court erred
in convicting defendant-appellant despite the fact
that he acted in defense of his person; and
Second Assignment of Error: That the court a quo
also erred in convicting defendant-appellant
although he acted in defense of his rights (p. 20 of
Appellant's Brief, p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed.
Appellant admitted having shot them from the window of his house
with the shotgun which he surrendered to the police authorities. He
claims, however, that he did so in defense of his person and of his
rights, and therefore he should be exempt from criminal liability.
Defense of one's person or rights is treated as a justifying
circumstance under Art. 11, par. 1 of the Revised Penal Code, but
in order for it to be appreciated, the following requisites must occur:
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 (Art. 11, par. 1,
Revised Penal Code, as amended).
The aggression referred to by appellant is the angry utterance by
deceased Fleischer of the following words: "Hindi, sigue, gademit,
avante", in answer to his request addressed to his compadre, the
deceased Rubia, when he said, "Pare, hinto mona ninyo at pagusapan natin kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6).
This was in reaction to his having been awakened to see the wall of
his house being chiselled. The verbal exchange took place while the
two deceased were on the ground doing the fencing and the
appellant was up in his house looking out of his window (pp. 225227, supra). According to appellant, Fleischer's remarks caused this
reaction in him: "As if, I lost my senses and unknowingly I took the
gun on the bed and unknowingly also I shot Mr. Fleischer, without
realizing it, I shot Mr. Fleischer" (p. 132, supra). As for the shooting
of Rubia, appellant testified:
When I shot Davis Fleischer, Flaviano Rubia was
nailing and upon hearing the shot, Mr. Rubia looked
at Mr. Fleischer and when Mr. Fleischer fell down,
Mr. Rubia ran towards the jeep and knowing that
there was a firearm in the jeep and thinking that if he
will take that firearm he will kill me, I shot at him (p.
132, supra, Emphasis supplied).
The foregoing statements of appellant were never controverted by
the prosecution. They claim, however, that the deceased were in
lawful exercise of their rights of ownership over the land in question,
when they did the fencing that sealed off appellant's access to the
highway.
A review of the circumstances prior to the shooting as borne by the
evidence reveals that five persons, consisting of the deceased and
their three laborers, were doing the fencing and chiselling of the
walls of appellant's house. The fence they were putting up was
made of bamboo posts to which were being nailed strands of
barbed wire in several layers. Obviously, they were using tools
which could be lethal weapons, such as nail and hammer, bolo or
bamboo cutter, pliers, crowbar, and other necessary gadgets.
Besides, it was not disputed that the jeep which they used in going
to the place was parked just a few steps away, and in it there was a
gun leaning near the steering wheel. When the appellant woke up to
the sound of the chiselling on his walls, his first reaction was to look
out of the window. Then he saw the damage being done to his
house, compounded by the fact that his house and rice mill will be
shut off from the highway by the fence once it is finished. He
therefore appealed to his compadre, the deceased Rubia, to stop
what they were doing and to talk things over with him. But deceased
Fleischer answered angrily with 'gademit' and directed his men to
proceed with what they were doing.
The actuation of deceased Fleischer in angrily ordering the
continuance of the fencing would have resulted in the further
chiselling of the walls of appellant's house as well as the closure of
the access to and from his house and rice mill-which were not only
imminent but were actually in progress. There is no question,
therefore, that there was aggression on the part of the victims:
Fleischer was ordering, and Rubia was actually participating in the
fencing. This was indeed aggression, not on the person of
appellant, but on his property rights.
The question is, was the aggression unlawful or lawful? Did the
victims have a right to fence off the contested property, to destroy
appellant's house and to shut off his ingress and egress to his
residence and the highway?
Article 30 of the Civil Code recognizes the right of every owner to
enclose or fence his land or tenements.
However, at the time of the incident on August 22, 1968, Civil Case
no. 755 for annulment of the order of award to Fleischer and
Company was still pending in the Court of First Instance of
Cotabato. The parties could not have known that the case would be
dismissed over a year after the incident on August 22, 1968, as it
was dismissed on January 23, 1970 on ground of res judicata, in
view of the dismissal in 1965 (by the Court of Appeals) of Civil Case
No. 240 filed in 1950 for the annulment of the award to the
company, between the same parties, which the company won by
virtue of the compromise agreement in spite of the subsequent
repudiation by the settlers of said compromise agreement; and that
such 1970 dismissal also carried the dismissal of the supplemental
petition filed by the Republic of the Philippines on November 28,
1968 to annul the sales patent and to cancel the corresponding
certificate of title issued to the company, on the ground that the
Director of Lands had no authority to conduct the sale due to his
failure to comply with the mandatory requirements for publication.
The dismissal of the government's supplemental petition was
premised on the ground that after its filing on November 28, 1968,
nothing more was done by the petitioner Republic of the Philippines
except to adopt all the evidence and arguments of plaintiffs with
whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed hoping
for a favorable judgment in Civil Case No. 755 filed on November
14, 1966 and his execution of the contract of lease on February 21,
1967 was just to avoid trouble. This was explained by him during
cross-examination on January 21, 1970, thus:
It happened this way: we talked it over with my Mrs.
that we better rent the place because even though
we do not know who really owns this portion to
avoid trouble. To avoid trouble we better pay while
waiting for the case because at that time, it was not
known who is the right owner of the place. So we
decided until things will clear up and determine who
is really the owner, we decided to pay rentals (p.
169, t.s.n., Vol.6).
In any case, Fleischer had given him up to December 31, 1968
(Exh.10, p. 2, Defense Exhibits) within which to vacate the land. He
should have allowed appellant the peaceful enjoyment of his
properties up to that time, instead of chiselling the walls of his
house and closing appellant's entrance and exit to the highway.
The following provisions of the Civil Code of the Philippines are in
point:
Art. 536. In no case may possession be acquired
through force or intimidation as long as there is a
possessor who objects thereto. He who believes
that he has an action or a right to deprive another of
the holding of a thing must invoke the aid of the
competent court, if the holder should refuse to
deliver the thing.
Art. 539. Every possessor has a right to be
respected in his possession; and should he be
disturbed therein he shall be protected in or restored
to said possession by the means established by the
laws and the Rules of Court (Articles 536 and 539,
Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had no right
to destroy or cause damage to appellant's house, nor to close his
accessibility to the highway while he was pleading with them to stop
and talk things over with him. The assault on appellant's property,
therefore, amounts to unlawful aggression as contemplated by law.
Illegal aggression is equivalent to assault or at least
threatened assault of immediate and imminent kind
(People vs. Encomiendas, 46 SCRA 522).
In the case at bar, there was an actual physical invasion of
appellant's property which he had the right to resist, pursuant to Art.
429 of the Civil Code of the Philippines which provides:
Art. 429. The owner or lawful possessor of a thing
has the right to exclude any person from the
enjoyment and disposal thereof. For this purpose,
he may use such force as may be reasonably
necessary to repel or prevent an actual or
threatened unlawful physical invasion or usurpation
of his property (Emphasis supplied).
The reasonableness of the resistance is also a requirement of the
justifying circumstance of self-defense or defense of one's rights
under paragraph 1 of Article 11, Revised Penal Code. When the
appellant fired his shotgun from his window, killing his two victims,
his resistance was disproportionate to the attack.
WE find, however, that the third element of defense of property is
present, i.e., lack of sufficient provocation on the part of appellant
who was defending his property. As a matter of fact, there was no
provocation at all on his part, since he was asleep at first and was
only awakened by the noise produced by the victims and their
laborers. His plea for the deceased and their men to stop and talk
things over with him was no provocation at all.
Be that as it may, appellant's act in killing the deceased was not
justifiable, since not all the elements for justification are present. He
should therefore be held responsible for the death of his victims, but
he could be credited with the special mitigating circumstance of
incomplete defense, pursuant to paragraph 6, Article 13 of the
Revised Penal Code.
The crime committed is homicide on two counts. The qualifying
circumstance of treachery cannot be appreciated in this case
because of the presence of provocation on the part of the
deceased. As WE held earlier in People vs. Manlapaz (55 SCRA
598), the element of a sudden unprovoked attack is therefore
lacking.
Moreover, in order to appreciate alevosia, "it must clearly appear
that the method of assault adopted by the aggressor was
deliberately chosen with a special view to the accomplishment of
the act without risk to the assailant from any defense that the party
assailed might have made. This cannot be said of a situation where
the slayer acted instantaneously ..." (People vs. Cañete, 44 Phil.
481).
evidenced by notorious outward acts evincing the determination to
commit the crime" (People vs. Ordioles, 42 SCRA 238). Besides,
there must be a "showing" that the accused premeditated the killing;
that the culprit clung to their (his) premeditated act; and that there
was sufficient interval between the premeditation and the execution
of the crime to allow them (him) to reflect upon the consequences of
the act" (People vs. Gida, 102 SCRA 70).
WE likewise find the aggravating (qualifying) circumstance of
evident premeditation not sufficiently established. The only
evidence presented to prove this circumstance was the testimony of
Crisanto Ibañez, 37 years old, married, resident of Maitum, South
Cotabato, and a laborer of Fleischer and Company, which may be
summarized as follows:
Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer
of the deceased Davis Fleischer, neutralizes his credibility.
On August 20, 1968 (two days before the incident)
at about 7:00 A.M., he was drying corn near the
house of Mr. and Mrs. Mamerto Narvaez at the
crossing, Maitum, South Cotabato, when the
accused and his wife talked to him. Mrs. Narvaez
asked him to help them, as he was working in the
hacienda. She further told him that if they fenced
their house, there is a head that will be broken.
Mamerto Narvaez added 'Noy, it is better that you
will tell Mr. Fleischer because there will be nobody
who will break his head but I will be the one.' He
relayed this to Mr. Flaviano Rubia, but the latter told
him not to believe as they were only Idle threats
designed to get him out of the hacienda (pp. 297303, t.s.n., Vol. 2).
This single evidence is not sufficient to warrant appreciation of the
aggravating circumstance of evident premeditation. As WE have
consistently held, there must be "direct evidence of the planning or
preparation to kill the victim, .... it is not enough that premeditation
be suspected or surmised, but the criminal intent must be
Since in the case at bar, there was no direct evidence of the
planning or preparation to kill the victims nor that the accused
premeditated the killing, and clung to his premeditated act, the trial
court's conclusion as to the presence of such circumstance may not
be endorsed.
Evident premeditation is further negated by appellant pleading with
the victims to stop the fencing and destroying his house and to talk
things over just before the shooting.
But the trial court has properly appreciated the presence of the
mitigating circumstance of voluntary surrender, it appearing that
appellant surrendered to the authorities soon after the shooting.
Likewise, We find that passion and obfuscation attended the
commission of the crime. The appellant awoke to find his house
being damaged and its accessibility to the highway as well as of his
rice mill bodega being closed. Not only was his house being
unlawfully violated; his business was also in danger of closing down
for lack of access to the highway. These circumstances, coming so
near to the time when his first house was dismantled, thus forcing
him to transfer to his only remaining house, must have so
aggravated his obfuscation that he lost momentarily all reason
causing him to reach for his shotgun and fire at the victims in
defense of his rights. Considering the antecedent facts of this case,
where appellant had thirty years earlier migrated to this so-called
"land of promise" with dreams and hopes of relative prosperity and
tranquility, only to find his castle crumbling at the hands of the
deceased, his dispassionate plea going unheeded-all these could
be too much for any man-he should be credited with this mitigating
circumstance.
his wife, councilor Feliza Narvaez, was also charged in these two
cases and detained without bail despite the absence of evidence
linking her to the killings. She was dropped as a defendant only
upon motion of the prosecution dated October 31, 1968. (p. 14, CFI
rec. of Crim. Case No. 1816), but acted upon on November 4, 1968
(p. 58, CFI rec. of Criminal Case No. 1815).
Consequently, appellant is guilty of two crimes of homicide only, the
killing not being attended by any qualifying nor aggravating
circumstance, but extenuated by the privileged mitigating
circumstance of incomplete defense-in view of the presence of
unlawful aggression on the part of the victims and lack of sufficient
provocation on the part of the appellant-and by two generic
mitigating circumstance of voluntary surrender and passion and
obfuscation.
Moreover, these cases arose out of an inordinate desire on the part
of Fleischer and Company, despite its extensive landholdings in a
Central Visayan province, to extend its accumulation of public lands
to the resettlement areas of Cotabato. Since it had the capabilityfinancial and otherwise-to carry out its land accumulation scheme,
the lowly settlers, who uprooted their families from their native soil
in Luzon to take advantage of the government's resettlement
program, but had no sufficient means to fight the big landowners,
were the ones prejudiced. Thus, the moral and material suffering of
appellant and his family deserves leniency as to his civil liability.
Article 249 of the Revised Penal Code prescribes the penalty for
homicide as reclusion temporal. Pursuant to Article 69, supra, the
penalty lower by one or two degrees shall be imposed if the deed is
not wholly excusable by reason of the lack of some of the conditions
required to justify the same. Considering that the majority of the
requirements for defense of property are present, the penalty may
be lowered by two degrees, i.e., to prision correccional And under
paragraph 5 of Article 64, the same may further be reduced by one
degree, i.e., arresto mayor, because of the presence of two
mitigating circumstances and no aggravating circumstance.
The civil liability of the appellant should be modified. In the case of
Zulueta vs. Pan American World Airways (43 SCRA 397), the award
for moral damages was reduced because the plaintiff contributed to
the gravity of defendant's reaction. In the case at bar, the victims
not only contributed but they actually provoked the attack by
damaging appellant's properties and business. Considering
appellant's standing in the community, being married to a municipal
councilor, the victims' actuations were apparently designed to
humiliate him and destroy his reputation. The records disclose that
Furthermore, Article 39 of the Revised Penal Code requires a
person convicted of prision correccional or arrests mayor and fine
who has no property with which to meet his civil liabilities to serve a
subsidiary imprisonment at the rate of one (1) day for each P 2.50.
However, the amendment introduced by Republic Act No. 5465 on
April 21, 1969 made the provisions of Art. 39 applicable to fines only
and not to reparation of the damage caused, indemnification of
consequential damages and costs of proceedings. Considering that
Republic Act 5465 is favorable to the accused who is not a habitual
delinquent, it may be given retroactive effect pursuant to Article 22
of the Revised Penal Code.
WHEREFORE, FINDING APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF ONLY TWO (2) HOMICIDES,
MITIGATED
BY
THE
PRIVILEGED
EXTENUATING
CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL
AS BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF
VOLUNTARY SURRENDER AND OBFUSCATION, WITHOUT
ANY AGGRAVATING CIRCUMSTANCE, APPELLANT IS HEREBY
SENTENCED TO SUFFER AN IMPRISONMENT OF FOUR (4)
MONTHS OF ARRESTO MAYOR, TO INDEMNIFY EACH GROUP
OF HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN
THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS, WITHOUT
SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD
FOR MORAL DAMAGES AND ATTORNEY'S FEES.
CONSIDERING THAT APPELLANT HAS BEEN UNDER
DETENTION FOR ALMOST FOURTEEN (14) YEARS NOW SINCE
HIS VOLUNTARY SURRENDER ON AUGUST 22,1968, HIS
IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.
SO ORDERED.
G.R. No. 134568
February 10, 2000
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
EULOGIO IGNACIO, accused-appellant.
PANGANIBAN, J.:
There is treachery when the accused unexpectedly and deliberately
shoots an unarmed minor who is thus not in a position to put up a
defense or to inflict harm on the former. Voluntary surrender is not
appreciated even if the accused submits himself to the members of
the barangay tanod who, by their presence in his house, precluded
his escape.
The Case
Before us is an appeal of the May 18, 1998 Decision1 of the
Regional Trial Court (RTC) of Masbate, Masbate (Branch 44),
convicting Eulogio Ignacio of murder in Criminal Case No. 8385.
The RTC disposed of the case as follows:
WHEREFORE, premises considered, the guilt of accused
EULOGIO IGNACIO alias "LOLOY" for the crime of
MURDER having been established by proof beyond
reasonable doubt for the killing of Jessie Lacson, and
without the presence of any aggravating or mitigating
circumstance, this court hereby sentences said accused to
suffer the penalty of RECLUSION PERPETUA and to pay
the heirs of the victim the sum of FIFTY THOUSAND
(P50,000.00) PESOS, without subsidiary [imprisonment] in
case of insolvency.
Accused Eulogio Ignacio being a detention prisoner, the
period of his detention shall be credited in his favor in the
computation of his sentence.
Finally, the Provincial Warden of Masbate is directed to ship
the accused to the National Penitentiary, Muntinlupa City,
within thirty (30) days from the finality of this decision and to
report to this court within fifteen (15) days from compliance
thereof.2
Second Assistant Provincial Prosecutor Alberto A. Alforte charged
appellant with the murder of Jessie Lacson in an Information dated
February 28, 1997, the pertinent portion of which reads:
That on or about January 11, 1997, [o]n the morning
thereof, at Barangay Divisoria, Municipality of Dimasalang,
Province of Masbate, Philippines, within the jurisdiction of
this Honorable Court, the above-named accused, with intent
to kill, evident premeditation and treachery did then and
there wilfully, unlawfully and feloniously attack, assault and
shoot with a 12 gauge homemade shotgun (riot) one Jessie
Lacson, hitting him on the chest, thereby inflicting wound,
which caused his death.3
With the assistance of Counsel Percival Castillo, appellant pleaded
not guilty when arraigned on September 18, 1997.4 After trial in due
course, the RTC rendered the assailed Decision. Hence, this
appeal.5
The Facts
Version of the Prosecution
In the Brief for the Appellee, the solicitor general narrated the facts
as follows:
On January 11, 1997, at Divisoria, Dimasalang, Masbate, at
9:00 a.m., the victim, Jessie Lacson, and Edwin Velasco
were gathering shells by the seashore. This work had
caused them to feel thirsty. The two decided to go to the
fishpond and get young coconuts or "butong." This fishpond
is owned by Cleto Cortes alias "Milagring" with appellant
Eulogio Ignacio alias "Loloy" as the caretaker. Inside the
fishpond is a house where appellant sometimes stays.
At the fishpond, Jessie got one young coconut. Then, Jessie
walked ahead of Edwin in going to the dike, where he would
break open the young coconut.
Eulogio came out [of] his house and saw Jessie as he
reached the dike. However, Eulogio did not see Edwin who
was standing behind some coconut trees. Edwin heard
Eulogio shout at Jessie to put down the young coconut,
which the latter did. Then, Edwin saw Eulogio fire his
homemade shotgun at Jessie who was hit on the left portion
of the breast. At that time, Eulogio was standing forty (40)
meters away from Jessie while Edwin was standing six (6)
meters away from his friend. Edwin saw Jessie fall down on
the ground. Then, Eulogio cranked his homemade shotgun,
aimed it at Edwin but did not fire. Edwin immediately left
said place to report the shooting incident to Jessie's
parents.
Edwin went to the house of Carlito Alcover, their Barangay
Tanod and reported the shooting. Carlito went to Eulogio's
house, failed to find him there, but waited. After three (3)
minutes, Eulogio arrived, carrying his homemade shotgun.
Then, Barangay Tanods Atel Lachica and Rodolfo Gulpan
came by. Carlito asked Eulogio to surrender, which he
heeded. Carlito asked Eulogio why he fired his long gun at
Jessie. Eulogio answered that Jessie stole some young
coconuts. Thereafter, they brought Eulogio to the police
precinct. The homemade shotgun was surrendered to SPO3
Arturo Hernando.
Meanwhile, Helen Alcovindas went to Dominador Lacson,
Jessie's father, who was gathering coconut fruits in another
plantation. She told Dominador that Eulogio shot Jessie.
Dominador ran towards the fishpond, saw Jessie's dead
body, and brought it to the clinic of Dr. Alino. Per
examination by Dr. Ernesto Tamayo, Municipal Health
Officer of Dimasalang, Masbate, the victim suffered from a
single gunshot wound fatally injuring the heart.6
Version of the Defense
Arguing that he had acted in defense of property with no intention to
kill the victim, appellant countered:
Appellant EULOGIO IGNACIO, caretaker of the fishpond of
Cleto Cortes, testified that on January 9, 1997, he was
informed by his neighbor, Gil Aristotles, regarding a theft
incident in the fishpond that he administered. On January
11, 1997, while roaming around the fishpond, he saw Jessie
Lacson and Edwin Velasco, coming out [of] his house with a
basket. It so happened that in his house there were twentyeight (28) pieces of crabs stocked. Upon seeing herein
appellant, Jessie and Edwin fled. Appellant ordered them to
stop. Since the two did not stop, appellant who was then
fifty (50) meters away and without any intention to kill Jessie
and Edwin, fired his gun. He left and informed Kagawad Gil
Aritotles about the incident. Afterwards, he reported to
Barangay Tanod Saratiel Lachica.7
Ruling of the Trial Court
The trial court ruled that appellant failed to prove by credible, clear
and convincing evidence that he had acted in lawful defense of the
landowner's property. There was no legal reason for him to shoot
the victim, an unarmed minor at the time of the incident. The said
court qualified the killing to murder because of the presence of
treachery.
Assignment of Errors
In his Brief, appellant submits the following:
I. The lower court gravely erred in convicting accusedappellant of murder.
II. The lower court gravely erred in finding that the qualifying
circumstance of treachery [was] attendant in the case at
bar.
III. The lower court gravely erred in not appreciating the
mitigating circumstance of voluntary surrender.8
This Court's Ruling
The appeal has no merit.
First
Evidence of Appellant's Guilt
Issue:
In arguing that the trial court erred in convicting him of murder,
appellant merely posits that the killing was not qualified by
treachery, without challenging the ruling that he had killed the
victim. Nonetheless, the Court examined the records motu proprio,
because of the well-ingrained doctrine that a conviction must rest on
the strength of the prosecution's evidence, and not on the
weakness, insufficiency or impropriety of the defense.9 After all,
even in cases in which the accused pleads guilty to a capital
offense, the prosecution is still required to present evidence to
prove his guilt and the precise degree of his culpability.10
In the present case, we find ample evidence that appellant did shoot
the victim. He himself admitted doing so, because he believed that
the deceased and a companion, Edwin Velasco, had stolen crabs.
Allegedly, he saw them carrying a basket and coming out of his
house. When he approached, the two ran away. After they failed to
heed his call for them to stop, he shot the victim with a homemade
shotgun.
It should be stressed that appellant's conduct cannot be justified as
a lawful defense of property rights. For this justifying circumstance
to be appreciated, the accused has the burden of proving unlawful
aggression on the part of the victim and reasonable necessity of the
means employed to prevent or repel it. In this case, the first
requisite was not proven, because he was not attacked by the
victim. In fact, he did not even see the victim steal the crabs; he
merely suspected him of doing so. Furthermore, assuming that
unlawful aggression was proven, there was no necessity to shoot
because, according to him, the victim was already running away
when hit.
In any event, the victim's companion at the time, Edwin Velasco
whose testimony will be reproduced later, positively identified
appellant as the killer.
Second
Treachery
Issue:
Appellant argues in the main that treachery should not be
appreciated, because there was no proof that he "deliberately and
consciously adopted any means to kill" Lacson, but "merely acted
on impulse to stop the fleeing culprits."11
We disagree. Appellant carried out the attack deliberately and
consciously; he did not act on mere impulse. This is clear from
Edwin Velasco's testimony, pertinent portions of which are
reproduced hereunder:
Q.
And when your companion Jessie Lacson was
able to gather that one young coconut, what happened next,
what did you do?
A.
40 meters.
A.
We went to the dike to break the coconut?
Q.
How about you, what was or can you estimate the
distance from the place where you were to the place when
you saw the accused [fire] at Jessie Lacson?
Q.
And were you able to open that young coconut?
A.
I was very far from him.
A.
No sir.
Q.
Who is that him you are referring to?
Q.
Why?
A.
From Jessie Lacson.
A.
We were not able to open the young coconut
because Jessie Lacson was shouted [at] by Eulogio Ignacio
ordering him to put down the young coconut.
Q.
Now, was Jessie Lacson hit when he was fired at
by the accused?
A.
Yes, sir.
Q.
Did Jessie Lacson put down the young coconut?
A.
Yes, sir.
Q.
And what else transpired next?
A.
He was shot.
Q.
By whom?
A.
(Witness pointing to the store outside the
courtroom which is around 40 meters away)
A.
By Loloy.
ALFORTE:
Q.
The accused in this case?
Q.
Was Jessie Lacson hit?
A.
Yes, sir.
A.
Yes, sir.
COURT:
Q.
How far was the accused when he fired at Jessie
Lacson?
Q.
That 40 meters distance of Eulogio Ignacio to the
victim, Jessie Lacson, will you please demonstrate or point
that distance from where you were seated?
Q.
What happened to him when he was hit by the
firing caused by the accused?
A.
He fell down.
Q.
Were you able to recognize what kind was . . .
what kind of gun was used by the accused in firing [at] the
victim in this case, Jessie Lacson?
A.
Yes, sir.
Q.
Can you demonstrate that gun if you were able to
recognize that it was a gun?
A.
It was a long gun.12
The foregoing testimony belies appellant's contention. The victim
and his companion stopped after appellant shouted at them. In fact,
they were already facing him when he fired the fatal shot from a
distance of around forty meters. This was affirmed by Dr. Ernesto L.
Tamayo, who had conducted the postmortem examination on the
victim, when he testified that the entry point of the gunshot wound
was at the chest, not at the back.13
Clearly, the evidence proves that appellant killed the victim, and that
he did so without risk to himself. A killing is qualified by treachery
when the accused employs means, methods or forms in the
execution thereof without risk to himself arising from the defense
which the offended party might make.14 To repeat, there was no
more reason for appellant to shoot; that he did so was unexpected
and surprising. Furthermore, Lacson was unarmed and a mere
minor then. Because he had no weapon, there was no risk at all that
appellant would be harmed. We stress that the former was only
fourteen years old at the time, and that he could not have put up an
effective defense.15
Third
No Voluntary Surrender
Issue:
Appellant maintains that the trial court should have appreciated the
mitigating circumstance of voluntary surrender, because he
allegedly gave himself up to three members of the
barangay tanod who had gone to his house.
We are not persuaded. In order that the mitigating circumstance
may be appreciated, the defense must clearly satisfy three
requisites: (a) the offender has not been actually arrested; (2) the
offender surrenders himself to a person in authority or the latter's
agent; and (c) the surrender is voluntary.16 The defense must show
an intent to surrender unconditionally to the authorities, because of
an acknowledgment of guilt or because of a wish to spare them the
trouble and the expense concomitant to the search and the capture
of the accused.17
Appellant's surrender was not voluntary. Rather, he was forced to
give himself up, because members of the barangay tanod were
already
inside
his
house,
thereby
precluding
his
escape.1âwphi1.nêt
WHEREFORE, the appeal is hereby DENIED, and the assailed
Decision AFFIRMED. Costs against appellant.
SO ORDERED.
G.R. No. L-16443
March 21, 1921
THE
UNITED
STATES, plaintiff-appellee,
vs.
MARTINA RIVERA, defendant-appellant.
Andres
Asprer
for
Acting Attorney-General Feria for appellee.
appellant.
MALCOLM, J.:
When Leona Laciste endeavored to set fire to the house of Martina
Rivera in which the two small children of the latter were sleeping,
the two women grappled and Leona Laciste was boloed to death by
Martina Rivera. As a result, a criminal prosecution for murder was
instituted in the Court of First Instance of La Union against Martina
Rivera and after due trial she was found guilty of the lesser crime of
homicide and was sentenced to eight years and one day of prison
mayor, with the accessory penalties provided by article 61 of the
Penal Code, to indemnify the heirs of the deceased in the sum of
P500, and to pay the costs.
Two questions are raised by the appeal. The one more fundamental
in nature revolves about the point of whether or not the defendant
should be exempted from all responsibility because of having acted
in defense of her person, her rights, and her descendants. The
second question is incidental in nature and relates to the finding of
the court that the qualifying circumstance of cruelty, because of
having deliberately and inhumanly increase the sufferings of the
offended party, was present.
Article 8 of the Penal Code exempts any one from criminal liability
who acts in defense of his person or rights, provided that the
following circumstances concur: (1) Unlawful aggression; (2)
reasonable necessity for the means employed to prevent or repel it;
(3) lack of sufficient provocation on the part of the person defending
himself. Anyone who acts in defense of the person of his
descendant is similarly exempted. In our view of the case, the first
and last requisites above-mentioned concur, but the second is
lacking.
A man's house is his castle. When a person is attacked in his own
house, he as a right to protect it, and those within it, from the
intrusion or attack. He may repel force by force in defense of
person, habitation, or property, against one who manifestly intends
or endeavors by violence or surprise to commit a felony, such as
arson, upon either. In such case one is not obliged to retreat, but
may pursue his adversary until he has secured himself from danger.
(People vs. Lewis [1897], 117 Cal., 186, citing East's Please of the
Crown, p. 271, and Foster's Crown Cases, chapter 3, p. 273, where
the rule is well stated.)
In this instance, the accused acted in defense of her person, her
home, and her children. The crime of arson was about to be
committed, and there was present the element of danger to the
occupants of the habitation. But there was not present any
reasonable necessity for killing the assailant. The accused
proceeded beyond the limits of immunity when, after the assailant
was out of the house, and prostrate on the ground, she persisted in
wounding her no less than fourteen times. The case is,
consequently, covered by article 86 of the Penal Code.
The lower court committed an error in taking into consideration the
qualifying circumstance of cruelty. The number of wounds on the
body of a deceased are not conclusive evidence of the presence of
this circumstance. (U.S. vs. Palermo [1915], 31 Phil., 425; decision
of the Supreme court of Spain of December 9, 1989.) On the
contrary, the evidence discloses more nearly the mitigating
circumstance of passion and obfuscation.
It is our unmistakable duty to find the defendant guilty of homicide. It
is, however, just as certainly our duty to view with leniency the
action of the defendant in view of the provocative nature of the
aggression. The provisions of article 86 of the Penal Code permit of
the exercise of considerable discretion by the courts.
Judgment is affirmed, with the modification that in place of eight
years and one day of prison mayor, the defendant and appellant
shall be sentenced to three years of prison correccional, and shall,
in addition, pay the costs of this instance. So ordered.
Mapa, C.J., Araullo, Street and Villamor, JJ., concur.
In due course, the prosecution adduced evidence against the
petitioner which was synthesized by the appellate court as follows:
SECOND DIVISION
[G.R. NO. 158057 : September 24, 2004]
On September 16, 1995, appellant went to a black-smith who made
the design of his bolo. When he went home to Tuburan, Odiongan,
NOE TOLEDO y TAMBOONG, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
Romblon late in the afternoon (TSN, September 4, 1998, p. 2),
appellant saw the group of Lani Famero, Michael Fosana, Rex
DECISION
Cortez and Ricky Guarte drinking gin at the house of the Spouses
CALLEJO, SR., J.:
Manuel and Eliza Guarte, Ricky's parents. Appellant's house is
This is a Petition for Review of the Decision1 of the Court of Appeals
(CA) in CA-G.R. CR No. 23742 affirming on appeal, the Decision2 of
the Regional Trial Court (RTC) of Odiongan, Romblon, Branch 82,
in Criminal Case No. OD-861, convicting the petitioner of homicide.
about five (5) meters away from the house of Spouses Guarte.
In an Information filed in the RTC of Romblon, the petitioner was
charged with homicide allegedly committed as follows:
Appellant requested the group of Ricky to refrain from making any
noise. Thereupon, appellant proceeded inside his house and went
to sleep (ibid., p. 3). Around 9:00 p.m., Gerardo Faminia, Eliza
Guarte's brother arrived at the Guarte house and asked for any leftover food (TSN, August 5, 1998, p. 3). Eliza prepared dinner for him
That on or about the 16th day of September 1995, at around 9:30
o'clock in the evening, in Barangay Libertad, municipality of
Odiongan, province of Romblon, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, with intent to
kill, did then and there, willfully, unlawfully and feloniously attack,
assault and stab with a bolo, one RICKY F. GUARTE, which causes
(sic) his untimely death.
Contrary to law.3
and after Gerardo finished eating, he went home accompanied by
Ricky (TSN, April 26, 1996, p. 5). Gerardo's home is about twelve
(12) meters away from the Guarte home (TSN, February 17, 1997,
p. 11). Minutes later, Ricky came back and together with Lani, Rex
and Michael, went to sleep at the Guarte house. They had not laid
down for long when they heard stones being hurled at the roof of
the house. The stoning was made three (3) times (TSN, August 5,
1998, pp. 2-3). Ricky rose from bed and peeped through a window.
He saw appellant stoning their house. Ricky went out of the house
and proceeded to appellant's house. Ricky asked appellant, his
uncle, why he was stoning their house. Appellant did not answer but
(1) abdominal cavity perforating the stomach (thru & thru) and the
met Ricky at the doorstep of his (appellant's) house (TSN, April 26,
left lobe of the liver
1996, p. 6; August 5, 1998, pp. 4-5) and, without any warning,
stabbed Ricky on the abdomen with a bolo (TSN, August 5, 1998, p.
8). Eliza had followed his son Ricky and upon seeing that Ricky was
stabbed, shouted for help (TSN, February 17, 1997, p. 13). Lani
(2) thoracic cavity thru the left dome of the diaphragm perforating
the lower lobe of the left lung.
(Exhibit C)
heard Eliza's cry for help and immediately rushed outside the
house. Lani saw Ricky leaning on the ground and supporting his
The Certificate of Death issued by Dr. Fetalvero stated the cause of
body with his hands. Lani helped Ricky stand up and brought him to
Ricky's death as:
the main road. Lani asked Ricky who stabbed him and Ricky replied
CAUSES OF DEATH:
that it was appellant who stabbed him. Then Docloy Cortez arrived
Immediate cause : a. Cardiorespiratory Arrest
at the scene on board his tricycle. Accordingly, Ricky was put on the
Antecedent cause : b. Hypovolemic shock
tricycle and taken to the Romblon Provincial Hospital (TSN, January
Underlying cause : c. Multiple thoraco-abdominal
19, 1998, pp. 4-6).
At the Romblon Provincial Hospital, Dr. Noralie Fetalvero operated
on Ricky that very night. Ricky had sustained one (1) stab wound
but due to massive blood loss, he died while being operated on
(TSN, November 24, 1997, pp. 2, 6-7). Dr. Fetalvero issued a
Medico-Legal Certificate showing the injuries sustained by Ricky,
thus:
Stab wound, left chest with gastric & transverse colon evisceration
measuring 6 cms. long, irregular-edged at 8th ICS, left penetrating
(operative findings):
injury 2' to stab wound
(Exhibit B)4
The Evidence of the Petitioner
The petitioner adduced evidence that at around 5:00 p.m. on
September 16, 1995, he was on his way home at Tuburan,
Odiongan, Romblon. He saw his nephew, Ricky Guarte, and the
latter's friends, Michael Fosana, Rex Cortez, and Lani Famero,
about five meters away from his house, having a drinking spree. He
ordered them not to make loud noises, and they obliged. He then
went to his house, locked the door with a nail, and went to sleep.
However, he was awakened at around 9:30 p.m. by loud noises
coming from Ricky and his three companions. He peeped through
the window grills of his house and admonished them not to make
any loud noises. Ricky, who was then already inebriated, was
incensed; he pulled out a balisong, pushed the door, and
threatened to stab the petitioner. The petitioner pushed their sala
set against the door to block the entry of Ricky, but the latter
continued to push the door open with his hands and body. The
petitioner ran to the upper portion of their house and got his
bolo.5 He returned to the door and pushed it with all his might using
his left hand. He then pointed his bolo, which was in his right hand,
towards Ricky. The bolo accidentally hit Ricky on the stomach, and
the latter lost his balance and fell to the floor. The petitioner,
thereafter, surrendered to the barangay captain at 11:00 a.m. on
September 17, 1995.
After trial, the court rendered judgment finding the petitioner guilty
as charged. The fallo of the decision reads:
WHEREFORE, premises considered, NOE TOLEDO is hereby
found GUILTY beyond reasonable doubt of homicide with the
On appeal in the CA, the petitioner raised the following issue in his
brief as appellant:
WHETHER
OR
NOT
ACCUSED-APPELLANT
CAN
BE
CRIMINALLY HELD LIABLE FOR THE ACCIDENTAL DEATH OF
RICKY GUARTE7
Invoking Article 12, paragraph 4 of the Revised Penal Code, the
petitioner claimed that he stabbed the victim by accident; hence, he
is exempt from criminal liability for the death of the victim.
The CA rendered judgment affirming the assailed decision with
modifications. The CA also denied the petitioner's motion for
reconsideration thereof. The appellate court ruled that the petitioner
failed to prove that he acted in self-defense.
Aggrieved, the petitioner filed the instant Petition for Review ,
contending that the CA erred in not finding that he acted in selfdefense when he stabbed the victim by accident and prays that he
be acquitted of the crime charged.
mitigating circumstance of voluntary surrender and is meted the
indeterminate penalty of from six (6) years and one (1) day of
prision mayor minimum, as minimum, to twelve (12) years and one
(1) day of reclusion temporal minimum, as maximum.
Accused is condemned to pay the amount of P50,000.00 as civil
liability to the heirs of the victim.6
The trial court did not give credence and probative weight to the
testimony of the petitioner that his bolo accidentally hit the victim on
the stomach.
The sole issue in this case is whether or not the petitioner is guilty
beyond reasonable doubt of homicide based on the evidence on
record.
The petitioner contends that the CA committed a reversible error
when it affirmed the decision of the RTC convicting him of homicide,
on its finding that he failed to prove that he acted in complete selfdefense when the victim was hit by his bolo. The petitioner insists
that he acted in complete self-defense when his bolo accidentally hit
the victim on the stomach.
For its part, the Office of the Solicitor General asserts that the
petitioner failed to prove self-defense with clear and convincing
evidence. Hence, the decision of the CA affirming, on appeal, the
decision of the RTC is correct.
1. Anyone who acts in defense of his person or rights, provided that
the following circumstances concur:
The contention of the petitioner has no merit.
First. Unlawful aggression;
The petitioner testified that his bolo hit the victim accidentally. He
asserted in the RTC and in the CA that he is exempt from criminal
liability for the death of the victim under Article 12, paragraph 4 of
the Revised Penal Code which reads:
Second. Reasonable necessity of the means employed to prevent
4. Any person who, while performing a lawful act with due care,
Third. Lack of sufficient provocation on the part of the person
causes an injury by mere accident without fault or intention of
defending himself.
causing it.
or repel it:
The petitioner avers that he was able to prove the essential
In his brief in the CA, the petitioner argued that:
elements of complete self-defense, thus:
In the case at bar, with all due respect, contrary to the findings of
A close scrutiny of the records of the case would show that the
the lower court, it is our humble submission that the death of Ricky
petitioner acted in self-defense.
Guarte was merely a sad and unwanted result of an accident
without fault or intention of causing it on the part of accusedappellant. We submit, there were clear and indubitable factual
indicators overlooked by the lower court, bolstering the theory of the
defense on accidental death.8
However, the petitioner changed gear, so to speak, and now alleges
that he acted in self-defense when he stabbed the victim. As such,
he contends, he is not criminally liable under Article 11, paragraph 1
of the Revised Penal Code which reads:
Art. 11. Justifying circumstances. - The following do not incur any
criminal liability:
The essential requisites of self-defense are: (1) unlawful aggression
on the part of the victim; (2) reasonable scrutiny of the means
employed to prevent or repel it; and (3) lack of sufficient provocation
on the part of the person defending himself (People v. Silvano, 350
SCRA 650)9
However, the petitioner also claims that his bolo accidentally hit the
stomach of the victim.
It is a matter of law that when a party adopts a particular theory and
the case is tried and decided upon that theory in the court below, he
will not be permitted to change his theory on appeal. The case will
be reviewed and decided on that theory and not approached and
resolved from a different point of view. To permit a party to change
his theory on appeal will be unfair to the adverse party.10
The petitioner is proscribed from changing in this Court, his theory
of defense which he adopted in the trial court and foisted in the CA by claiming that he stabbed and killed the victim in complete selfdefense. The petitioner relied on Article 12, paragraph 4 of the
Revised Penal Code in the trial and appellate courts, but adopted in
this Court two divergent theories - (1) that he killed the victim to
defend himself against his unlawful aggression; hence, is justified
under Article 11, paragraph 1 of the Revised Penal Code; (2) that
his bolo accidentally hit the victim and is, thus, exempt from criminal
liability under Article 12, paragraph 4 of the Revised Penal Code.
It is an aberration for the petitioner to invoke the two defenses at the
same time because the said defenses are intrinsically
antithetical.11 There is no such defense as accidental self-defense
in the realm of criminal law.
Self-defense under Article 11, paragraph 1 of the Revised Penal
Code necessarily implies a deliberate and positive overt act of the
accused to prevent or repel an unlawful aggression of another with
the use of reasonable means. The accused has freedom of action.
He is aware of the consequences of his deliberate acts. The
defense is based on necessity which is the supreme and irresistible
master of men of all human affairs, and of the law. From necessity,
and limited by it, proceeds the right of self-defense. The right begins
when necessity does, and ends where it ends.12 Although the
accused, in fact, injures or kills the victim, however, his act is in
accordance with law so much so that the accused is deemed not to
have transgressed the law and is free from both criminal and civil
liabilities.13 On the other hand, the basis of exempting
circumstances under Article 12 of the Revised Penal Code is the
complete absence of intelligence, freedom of action, or intent, or the
absence of negligence on the part of the accused.14 The basis of
the exemption in Article 12, paragraph 4 of the Revised Penal Code
is lack of negligence and intent. The accused does not commit
either an intentional or culpable felony. The accused commits a
crime but there is no criminal liability because of the complete
absence of any of the conditions which constitute free will or
voluntariness of the act.15 An accident is a fortuitous circumstance,
event or happening; an event happening wholly or partly through
human agency, an event which under the circumstances is unusual
or unexpected by the person to whom it happens.16
Self-defense, under Article 11, paragraph 1, and accident, under
Article 12, paragraph 4 of the Revised Penal Code, are affirmative
defenses which the accused is burdened to prove, with clear and
convincing evidence. Such affirmative defenses involve questions of
facts adduced to the trial and appellate courts for resolution. By
admitting killing the victim in self-defense or by accident without
fault or without intention of causing it, the burden is shifted to the
accused to prove such affirmative defenses. He should rely on the
strength of his own evidence and not on the weakness of that of the
prosecution. If the accused fails to prove his affirmative defense, he
can no longer be acquitted.
The petitioner failed to prove that the victim was killed by accident,
without fault or intention on his part to cause it. The petitioner was
burdened to prove with clear and convincing evidence, the essential
requisites for the exempting circumstance under Article 12,
paragraph 4, viz:
1. A person is performing a lawful act;
2. With due care;
3. He causes an injury to another by mere accident;
4. Without fault or intention of causing it.
To prove his affirmative defense, the petitioner relied solely on his
testimony, thus:
Q What happened next when Ricky Guarte was able to push
A In the stomach.17
Q And since you were at the left side of the door, your right hand
was
through the door and you ran away?chanroblesvirtualawlibrary
at
the
center
part
of
the
door,
correct?chanroblesvirtualawlibrary
A When Ricky Guarte was able to push the door, that is the time I
go (sic) downstairs and got my bolo and at that time the body of
Ricky Guarte was at the entrance of the door and accidentally the
A No, Sir.
Q Where was your right hand?chanroblesvirtualawlibrary
bolo reached him.
A Holding a bolo.
Q Where did you get the bolo?chanroblesvirtualawlibrary
Q Where, in what part of the door?chanroblesvirtualawlibrary
A I got the bolo in the post or wall of our house.
A Right side.
Q
Was
Ricky
Guarte
hit
the
first
time
you
boloed
Q When Ricky Guarte was pushing the door, the door was not
him?chanroblesvirtualawlibrary
opened?chanroblesvirtualawlibrary
A Not hacking but accidentally.
A It was opened.
Q What do you mean by accidentally?chanroblesvirtualawlibrary
Q
A Because when Ricky Guarte pushed the door and unbalance
It
was
opened
because
you
opened
correct?chanroblesvirtualawlibrary
himself (sic) the bolo which I was carrying hit him accidentally.
A No, Sir.
Q
Where
was
he
hit
by
carrying?chanroblesvirtualawlibrary
the
bolo
you
were
Q Now, why was it opened?chanroblesvirtualawlibrary
the
door,
A Because he was pushing it.
Q Now, when the door was opened, your bolo did not hit any part of
that door, correct?chanroblesvirtualawlibrary
Q With his left hand?chanroblesvirtualawlibrary
A "Ginaiwas ko ang sunrang," meaning I was able to get away from
A With his both hands and body.
hitting any part of the door.
Q Now, when he fell down because, according to you, he losses
(sic) his balance, the left side of the body was the first to fell (sic)
down, correct?chanroblesvirtualawlibrary
You
and while you were pointing directly your bolo at the door, not any
part of the door hit the bolo (sic), correct?chanroblesvirtualawlibrary
A Yes, Sir.
Q
Q The question Mr. Toledo is simple, while the door was opened
ATTY. FORMILLEZA:
are
sure
of
your
answer
now
Mr.
It was a valid answer, it did not hit any part of the door.
Toledo?chanroblesvirtualawlibrary
COURT:
A Yes, Sir.
Answer.
Q Now, and while holding that bolo, you are doing that in [an]
upward position, correct?chanroblesvirtualawlibrary
A No, Sir.
A No, Sir, pointing the door.
PROS. FRADEJAS continuing:
Q Yes, you are pointing the tip of your bolo to the door upward,
Q You were only about five inches away from your door while
correct?chanroblesvirtualawlibrary
pushing it, correct?chanroblesvirtualawlibrary
A No, Sir, steady pointing to the door.
A Yes, Sir.
Q Now, when the door was pushed already by Ricky Guarte, not
A I told him I have not done you anything wrong, I am only scolding
any
you or telling you not to make noise.
part
of
your
body
hit
the
door,
correct?chanroblesvirtualawlibrary
Q
18
A No, Sir.
What,
if
any,
did
Ricky
Guarte
do
to
you?chanroblesvirtualawlibrary
The petitioner also testified that the victim was armed with a
balisong and threatened to kill him as the said victim pushed, with
his body and hands, the fragile door of his house:
A He pushed the door.
Q Whose door did he push?chanroblesvirtualawlibrary
Q
Where
were
you
when
you
saw
Ricky
went
A My own door.
out?chanroblesvirtualawlibrary
Q
A I was at the door.
Where
were
you
when
he
pushed
the
door?chanroblesvirtualawlibrary
Q
Did
Ricky
proceed
to
the
door
where
you
were?chanroblesvirtualawlibrary
A Yes, Sir.
Q What did he do, if any?chanroblesvirtualawlibrary
A He drew his fan knife or balisong and asked me what do you like,
I will stab you?chanroblesvirtualawlibrary
Q What did you do?chanroblesvirtualawlibrary
A Inside our house.19
We find the testimony of the petitioner incredible and barren of
probative weight.
First. If the testimony of the petitioner is to be believed, the force of
the struggle between him and the victim would have caused the
door to fall on the petitioner. However, the petitioner failed to
adduce real evidence that the door of his house was destroyed and
that he sustained any physical injuries,20 considering that he was
only five inches away from the door.
Second. If the door fell to the sala of the house of the petitioner, the
victim must have fallen on top of the door. It is incredible that the
bolo of the petitioner could have hit the stomach of the victim. The
claim of the petitioner that he managed to step aside and avoid
being crushed by the door belies his claim that the bolo accidentally
hit the victim on the stomach.
Q You just remained silent thinking of an excuse that happened that
evening of September 16, 1995, correct?chanroblesvirtualawlibrary
Third. When he surrendered to the barangay captain and to the
policemen, he failed to relate to them that his bolo accidentally hit
the stomach of the victim:
Q Now, that very night when you said Ricky Guarte was
accidentally hit by your bolo, you did not surrender to the police,
correct?chanroblesvirtualawlibrary
A I surrendered to the barangay captain at one o'clock in Panique,
in the afternoon.
Q Now, you only surrendered to the police when a certain person
advised you to surrender, correct?chanroblesvirtualawlibrary
A On my own volition, I surrendered to the barangay captain.
Q You did not narrate the incident to the barangay captain whom
you have surrendered, correct?chanroblesvirtualawlibrary
A No, Sir.21
Fourth. There is no evidence that the petitioner surrendered either
the bolo that accidentally hit the victim or the balisong held by the
deceased to the barangay captain or the police authorities. Such
failure of the petitioner negates his claim that his bolo accidentally
hit the stomach of the victim and that he acted in self-defense.22
Fifth. To prove self-defense, the petitioner was burdened to prove
the essential elements thereof, namely: (1) unlawful aggression on
the part of the victim; (2) lack of sufficient provocation on the part of
the petitioner; (3) employment by him of reasonable means to
prevent or repel the aggression. Unlawful aggression is a condition
sine qua non for the justifying circumstances of self-defense,
whether
complete
or
incomplete.23 Unlawful
aggression
presupposes an actual, sudden, and unexpected attack, or
imminent danger thereof, and not merely a threatening or
intimidating attitude.24 We agree with the ruling of the CA that the
petitioner failed to prove self-defense, whether complete or
incomplete:
The evidence on record revealed that there is no unlawful
aggression on the part of Ricky. While it was established that Ricky
A No, Sir.
was stabbed at the doorstep of appellant's house which would give
Q When you were brought to the municipal jail, you did not also
a semblance of verity to appellant's version of the incident, such
narrate
view, however, is belied by the fact that Ricky arrived at appellant's
to
the
police
correct?chanroblesvirtualawlibrary
A No, Sir.
what
happened,
house unarmed and had only one purpose in mind, that is, to ask
appellant why he threw stones at his (Ricky's) house. With no
weapon to attack appellant, or defend himself, no sign of hostility
attitude. In the absence of such element, appellant's claim of selfdefense must fail.
may be deduced from Ricky's arrival at appellant's doorstep. Ricky
was not threatening to attack nor in any manner did he manifest any
aggressive act that may have imperiled appellant's well-being.
Ricky's want of any weapon when he arrived at appellant's doorstep
is supported by the fact that only one weapon was presented in
court, and that weapon was the bolo belonging to appellant which
he used in stabbing Ricky. Thus, appellant's version of the events
does not support a finding of unlawful aggression. In People v.
Pletado, the Supreme Court held:
Further, appellant's plea of self-defense is not corroborated by
competent evidence. The plea of self-defense cannot be justifiably
entertained where it is not only uncorroborated by any separate
competent evidence but is in itself extremely doubtful.25
Sixth. With the failure of the petitioner to prove self-defense, the
inescapable conclusion is that he is guilty of homicide as found by
the trial court and the CA. He cannot even invoke Article 12,
paragraph 4 of the Revised Penal Code.26
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The
assailed decision of the Court of Appeals is AFFIRMED. Costs
against the petitioner.
"xxx (F) or aggression to be appreciated, there must be an actual,
sudden, [un]expected attack or imminent danger thereof, and not
merely a threatening or intimidating attitude (People v. Pasco, Jr.,
supra, People v. Rey, 172 SCRA 149 [1989]) and the accused must
present proof of positively strong act of real aggression (Pacificar v.
Court of Appeals, 125 SCRA 716 [1983]). Unlawful aggression must
be such as to put in real peril the life or personal safety of the
person defending himself or of a relative sought to be defended and
not an imagined threat."
Appellant was not justified in stabbing Ricky. There was no
imminent threat to appellant's life necessitating his assault on Ricky.
Unlawful aggression is a condition sine qua non for the justifying
circumstance of self-defense. For unlawful aggression to be
appreciated, there must be an actual, sudden, unexpected attack or
imminent danger thereof, not merely a threatening or intimidating
SO ORDERED.
G.R. No. L-46485 November 2l, 1979
NORMAN
LACSON, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF
THE PHILIPPINES, respondents.
Coronel Law Office for petitioner.
Office of the Solicitor General for respondents.
FERNANDEZ, J.:
This is a petition for certiorari to review the decision of the Court of
Appeals, 1 promulgated on April 26, 1977, affirming the judgment of
the Court of First Instance of Bulacan Branch VIII, in Criminal Case
No. 0429-V, entitled "People of the Philippines vs. Norman Lacson"
convicting the accused, petitioner herein, of the crime of frustrated
homicide penalized under Art. 249, in connection with Art. 50 of the
Revised Penal Code, but declaring him entitled to the privileged
litigating circumstance of incomplete self-defense considering that
two of the three requisites mentioned in Art. 11, No. 1 of the
Revised Penal Code are present, namely, unlawful aggression and
lack of sufficient provocation on the part of the person defending
himself and, taking into consideration the provisions of Art. 13, No.
1 and Art. 69, both of the said Revised Penal Code, imposed upon
him a straight penalty of imprisonment of Four (4) Months of arresto
mayor, and ordered the said accused to indemnify the offended
party, Jimmy Pitalio, in the amount of P500.00, and to pay the costs
of the suit. 2
The petitioner was originally charged under two (2) informations. In
Criminal Case No. 0429-V, 3 he was accused of frustrated homicide
for having shot one Jimmy Pitalio on January 23, 1972 in the
municipality of Valenzuela, province of Bulacan. The petitioner was
charged in Criminal Case No. 0430-V 4 with illegal possession of
firearm and ammunition for having in his possession a Commanche
Chief Caliber .22 Magnum revolver which was not licensed in his
name. This was the same gun he used in shooting Jimmy Pitalio.
The two criminal cases were tried jointly. Thereafter the trial court
rendered judgment acquitting the petitioner of the crime of illegal
possession of firearm and ammunition in Criminal Case No. 0430-V
and convicting said petitioner of the crime of frustrated homicide in
Criminal Case No. 0429-V. 5
The petitioner appealed to the Court of Appeals assigning the
following errors allegedly committed by the trial court: 6
ASSIGNMENT OF ERRORS
I
THE LOWER COURT ERRED IN HOLDING THAT
THE OFFENDED PARTY WAS NOT ARMED
WHEN HE ATTACKED APPELLANT.
II
THE LOWER COURT ERRED IN HOLDING THAT
THERE WAS NO REASONABLE NECESSITY OF
THE MEANS EMPLOYED BY APPELLANT TO
DEFEND HIMSELF.
III
THE LOWER COURT ERRED IN NOT
ACQUITTING APPELLANT ON THE GROUND OF
LEGITIMATE SELF- DEFENSES."
The Court of Appeals affirmed the judgment of the trial court in
toto 7 and denied the petitioner's motion for reconsideration of said
decision in a resolution dated June 20, 1977. 8
TO USE HIS WIFE'S GUN TO DEFEND HIMSELF
AND HIS WIFE.
IV
The petitioner contends that the Court of Appeals committed the
following errors: 9
ASSIGNMENT OF ERRORS
I
RESPONDENT COURT OF APPEALS ERRED IN
SUSTAINING
THE
UNWARRANTED
CONCLUSION OF THE TRIAL COURT THAT THE
OFFENDED PARTY WAS NOT ARMED WITH A
KNIFE WHEN HE ATTACKED THE PETITIONER.
II
RESPONDENT COURT OF APPEALS ERRED IN
SUSTAINING
THE
UNWARRANTED
CONCLUSION OF THE TRIAL COURT THAT THE
FAILURE OF THE PETITIONER TO PRESENT AS
WITNESSES HIS MAID, HIS HELPER AND HIS
WIFE TO CORROBORATE HIS TESTIMONY
RENDERS THE DEFENSE VERSION UNWORTHY
OF CREDENCE.
III
RESPONDENT COURT OF APPEALS ERRED IN
HOLDING THAT BECAUSE THE OFFENDED
PARTY WAS NOT ARMED WITH A KNIFE WHEN
HE ATTACKED THE PETITIONER, THERE WAS
NO REASONABLE NECESSITY FOR THE LATTER
ASSUMING FOR THE SAKE OF ARGUMENT
THAT PETITIONER CANNOT CLAIM COMPLETE
SELF-DEFENSE, RESPONDENT COURT OF
APPEALS ERRED IN NOT HOLDING THAT THE
CRIME COMMITTED IS SERIOUS PHYSICAL
INJURIES ONLY AND NOT FRUSTRATED
HOMICIDE.
The facts, as found by the Court of Appeals, are: 10
Norman Lacson, Jimmy Pitalio, Carlos Tan and
Enrique Masacote were neighbors in General
Tiburcio de Leon, Valenzuela, Bulacan. At about
noon on January 23, 1972, Carlos Tan invited
Masacote and Pitalio to the birthday party of his son
in their house. While they were eating and drinking
in the yard, Tan told Pitalio that the laborers of
Lacson were leaving their work. Tan also asked
Pitalio to find out whether the latter could get the
balance of his unpaid wages from Lacson. Pitalio
went to Lacson's residence, kicked open the gate of
appellant's residence, and forced his way inside the
yard. Appellant and his wife had just arrived and
were alighting from their car when Pitalio, under the
influence of liquor, confronted Mrs. Lacson and
asked her to produce their truck driver named
Serafica, saying- 'Pag hindi mo siya hinarap sa akin
ay may mangyayari.' Appellant remonstrated with
Pitalio to abide by the law. This enraged Pitalio who
replied: 'Ano ang batas, ito ang batas!' Taking the
Magnum. 22 caliber pistol of his wife from her
handbag the appellant then fired it once at chest.
Thereafter Mrs. Lacson brought Pitalio to the
hospital. There Pitalio's gunshot wound was treated
and operated on (Exhibit 'A'). Pitalio's confinement
in the Jose R. Reyes Memorial Hospital lasted from
January 23 to February 2, 1972. The medical
certificate issued unto him stated that his injury
would incapacitate him for more than thirty (30)
days.
In its analysis of the evidence for the prosecution petition and for
the defense, the trial court found that: 11
Jimmy Pitalio, on the witness stand, admitted that at
the time of the incident he had drunk beer in the
house of Carlos Tan but being drunk. The Court
believes, however, that at the tune he was under the
influence of liquor so much so that although he
knew that the balance of his salary which was a
measly Pl.00 in amount was due to him from the
driver, he pressed Mrs. Lacson for the non-payment
and as a matter of fact, according to him, he told
Mrs. Lacson 'Never mind, Mrs. Lacson, alam kong
ginigipit ninyo ako.' Again, the fact that Jimmy Pitalio
was known as a person of bad character in the
locality is shown by the uncontradicted testimony of
the accused who testified that Carlos Tan and
Masacote warned him about Jimmy Pitalio and, by
the fact that Jimmy Pitalio was convicted of serious
physical injuries against his own uncle (Exhibit 4),
and likewise by the fact that he admitted having
stoned the house of accused Norman Lacson
together with other companions.
The petitioner invoked self-defense. His evidence is that jimmy
Pitalio attacked him with a knife, and in order to prevent or repel the
aggression he took the gun of his wife from her handbag and shot
at the offended party.
The trial court rejected petitioner's theory of complete selfdefense.
However, lt ruled that there was unlawful aggression on the part of
the offended party, Jimmy Pitalio, stating thus: 12
Considering, therefore, the fact that at the time of
the incident the offended party, Jimmy Pitalio, was
drunk and considering his bad character, the Court
believes, therefore, that there was unlawful
aggression on the part of Jimmy Pitalio. It was
Jimmy Pitalio who provoked the incident by going in
a drunken condition to the house of the accused
The fact that Pitalio was of a violent temperament,
strong and aggressive, previously convicted of
serious physical injuries against his own uncle, plus
the fact that he entered the residence of the
accused in this case, makes the Court conclude that
there was unlawful aggression on the part of the
offended party in this case.
The trial court held that there was no reasonable necessity of the
means employed to repel the unlawful aggression but found that
there was lack of sufficient provocation on the part of the accused
because: 13
That there was lack of sufficient provocation on the
part of the accused in this case is very clear
because it was Jimmy Pitalio who himself provoked
the incident by accusing the wife of the accused of
depriving him of his wages. The Court therefore
finds that although there was no reasonable
necessity of the means employed to prevent or repel
the first requisite of unlawful aggression was
present, as well as the third requisite of lack of
sufficient provocation on the part of the person
defending himself.
The main issue raised by the petitioner is whether or not he is
entitled to acquittal on the ground of complete self-defense. The trial
court and the Court of Appeals found the presence of unlawful
aggression on the part of the offended party and lack of sufficient
provocation on the part of the petitioner. Both said courts, however,
found the use of the gun by the petitioner as an unreasonable
means to repel the unlawful aggression of the offended party,
Jimmy Pitalio, apparently on the belief that the latter did not have
any weapon.
The petitioner testified that the offended party was armed with a
"knife like" knife when he confronted Mrs. La and the accused. The
trial court found that when the petitioner remonstrated with Pitalio to
abide by the law, Pitalio was enraged and replied "Ano ang batas,
ito ang batas! " Implicit in this statement of Pitalio is that he was
referring to something as "ito ang batas. " This statement of Pitalio
tends to corroborate the testimony of the petitioner that the offended
party was armed with a "kris-like" knife. The trial did not state to
what Pitalio, the offended party, referred when he said "... ito ang
batas! " before he was fired at by the petitioner. The statement
could not have simply referred to the fists of the offended party. It is
contrary to normal human behavior for the petitioner to have taken
the pistol of his wife from her handbag and fired at Pitalio if Pitalio
have any weapon at all. The only logical conclusion is that had a
knife when he said "Ano ang batas!" The phrase "into ang batas "
could only have referred to a weapon.
In People vs. Boholst-Caballero, 14 this Court said.
In cases such as the one now before Us where
there are directly conflicting versions of the incident
object of the accusation the Court in its search for
the truth perforce has to look for some facts or
circumstances which can be used as valuable aids
in evaluating the probability or improbability of a
testimony, for after all the element of probability is
always involved in weighing testimonial evidence, so
much so that when a court as a judicial fact-finder
pronounces judgment that a set of facts constitute
the true happening it does so not of its own personal
knowledge but as the result of an evaluating
process of the probability or improbability of a fact
sought to be proved.
Considering the findings of the trial court and the Court of Appeals
that Jimmy Pitalio, the offended party, was drunk at the time he was
shot; that Pitalio was known as a person of bad character in the
locality; that Pitalio had been convicted of serious physical injuries
committed against his own uncle; that on a previous occasion,
Pitalio admitted having stoned the house of petitioner, Norman
Lacson; and the fact that Pitalio had intruded into the residence of
the accused, the use by the petitioner of a gun as the only available
weapon to repel the aggression cannot be considered as an
unreasonable means of defending himself and his wife from the
offended party.
This Court explained the meaning of reasonable means employed
thus:
That there is reasonable necessity of the means
employed by herein appellant to prevent or repel the
unlawful aggression cannot seriously be disputed.
'Reasonable necessity of the means employed does
not imply material commensurability between the
means of attack and defense. What the law requires
is rational equivalence, in the consideration of which
will enter as principal factors the emergency, the
imminent danger to which the person attacked is
exposed, the instinct, more than the reason, that
moves or impels the defense, and the
proportionateness thereof d 's not depend upon the
harm done, but rests upon the imminent danger of
such injury ... As WE stated in the case of People
vs. Lara, in emergencies of this kind, human nature
does not act upon processes of formal reason but in
obedience to the instinct of self-preservation; and
when it is apparent that a person has reasonably
acted upon this instinct, it is the duty of the courts to
sanction the act and hold the act irresponsible in law
for the consequences.15
In the instant case, there was an imminent danger of the lives of the
petitioner and of his wife from the unlawful attack of an enraged,
drunken, and armed Pitalio. The gun in the bag of his wife, who
was. beside him, afforded the petitioner the only reasonable means
to ward off the attack.
The petitioner is entitled to acquittal on the ground of complete selfdefense. It is no longer necessary to discuss the other errors
assigned by him.
WHEREFORE, the decision of the Court of Appeals sought to be
reviewed is hereby set aside and the petitioner is ACQUITTED of
the crime charged in the information in C Case No. 0429-V of the
Court of First Instance of Bulacan, with costs de oficio.
SO ORDERED.
FIRST DIVISION
G. R. No. 120646 - February 14, 2000
PEOPLE
OF
THE
PHILIPPINES, PlaintiffAppellee, v. APOLINAR DANDO, Accused-Appellant.
KAPUNAN, J.:
This is an appeal from a decision of the Regional Trial
Court, Branch 33, Siniloan, Laguna finding PO3 Apolinar E.
Dando ("accused-appellant") guilty beyond reasonable
doubt of murder.
The Information filed against accused-appellant reads:
That on or about 6:19 o'clock in the evening of November
20, 1991 at Barangay M. Pandeño, Municipality of Siniloan,
Province of Laguna and within the jurisdiction of this
Honorable Court, the above-named accused while
conveniently armed with a deadly weapon (cal. 45) with
intent to kill, with treachery and evident premeditation, did
then and there willfully, unlawfully and feloniously attack,
assault and shoot several times one CESAR CASTRO y
VALMONTE with the said weapon, thereby inflicting upon
him gunshot wounds on the vital parts of his body which
directly caused his death, to the damage and prejudice of
the surviving heirs of the victim.
That the qualifying and aggravating circumstances of
treachery, evident premeditation and abuse of superior
strength attended the commission of the crime.
CONTRARY TO LAW.1
On the same date, accused-appellant filed a motion for
inhibition and for a change of venue of the case because
several staff members of Branch 33, RTC of Laguna were
related to the victim. On February 12, 1992, Judge
Venancio M. Tarriela, the Presiding Judge of said branch,
granted the motion.2 On May 14, 1992, this Court
approved the change of venue and designated Judge Jose
C. Mendoza of Branch 26, RTC of Sta. Cruz, Laguna, to try
and decide the case.3
Accused-appellant filed a petition for bail 4 which was
denied after hearing on the ground that the evidence
against accused-appellant is strong.5 Accused-appellant
then went to the Court of Appeals via petition
for certiorari questioning the denial of his petition for bail.
Subsequently, on account of another motion for
inhibition,6 filed by accused-appellant alleging that a
prosecution witness in the hearing for the petition for bail
was related to a staff member of Branch 26, the case was
re-raffled and transferred to Branch 28, RTC of Sta. Cruz,
Laguna, presided by Judge Fernando Paclibon, Jr.
On June 18, 1993, the Court of Appeals rendered its
decision
dismissing
accused-appellant's
petition
questioning the denial of his motion for bail, for lack of
merit.7
During trial and after the prosecution witness had already
rested its case, the Presiding Judge of Branch 28, RTC of
Sta. Cruz, Laguna, likewise, inhibited himself from further
hearing the case when accused-appellant questioned his
impartiality because of his refusal to grant accusedappellant's motion to recall prosecution witness Susana
Masacupan to the witness stand as a hostile witness.8 The
case was transferred back to Branch 26, RTC of Laguna,
then presided by Judge Pablo Francisco.
The prosecution's account of the case as narrated in the
brief of the Solicitor General is as follows:
away from that of the victim, Cesar Castro. Upon arrival at
his uncle's place, a party was on-going as it was the
birthday of the former (p. 3, tsn, June 17, 1992). At the
said party, gunshots were fired by appellant and Junior
Millares to celebrate the occasion (p. 4, tsn, October 20,
1992 and pp. 14-15, tsn, August 26, 1993). After a few
hours at the birthday party, Gemanel decided to go to his
grandmother's house, a mere three (3) houses away from
his uncle's house (p. 5, tsn, June 17, 1992). On the way to
his grandmother's house, he saw appellant Apolinar Dando,
sat on the side-car of a tricycle parked along Pandiño
Street in front of Junior Millares' house and placed a white
handkerchief over his face (p. 5-6, tsn, Ibid). Though
puzzled by the action of appellant, Gemanel proceeded to
his grandmother's house and stayed there for almost an
hour (pp. 20-21, tsn, September 22, 1993). When
Gemanel went out of the house, he saw appellant get off
the tricycle with the handkerchief covering his face and
walk towards the direction of the town plaza (pp. 30-31,
tsn, Ibid.). At that time, Gemanel followed appellant and
then he (Gemanel) entered a bakery to buy bread (pp. 2829, tsn, Ibid). While inside the bakery, Gemanel heard a
shot, so he ran outside to look where the shot came from
(p. 36, tsn, Ibid). Thereupon, he saw appellant with the
same white handkerchief covering his face, firing three (3)
more shots at Cesar Castro, who was standing on the
street in front of his (Castro's) house. After the fourth shot
appellant ran towards the "paraanan" or alley, to the
direction of the town plaza (pp. 37-43, tsn, Ibid).
Prosecution witness Aldwin Gemanel testified that on
November 20, 1991, he went to the house located at
Pandiño Street, Siniloan, Laguna of his uncle, Angelito
Millares, Jr. (Junior Millares) to look for his (Gemanel's)
father. Junior Millares' house was about 100 to 150 meters
Gemanel rushed home and told his mother what he had
just witnessed (p. 53, tsn, September 22, 1993). His
mother then went to the crime scene while he was left to
tend their store (p. 54, tsn, Ibid.) When his mother came
back after about ten (10) minutes, he confided to her that
On May 2, 1995, the trial court rendered its decision the
dispositive portion of which reads:
WHEREFORE, this Court finds the accused Apolinar Dando
guilty beyond reasonable doubt of the crime of murder as
charged in the information, qualified by treachery and
committed with the aggravating circumstances of use of
craft or disguise and evident premeditation and hereby
sentences him to suffer the penalty of reclusion
perpetua and to pay the heirs of Cesar Castro as follows:
a.) the sum of P50,000.00 as death indemnity;
b.) the sum of P1,628,000.00 for loss of earning capacity;
and
c.) the sum of P35,974.00 as reimbursement for expenses
incurred in the wake and burial of the victim; and to pay
the costs.
SO ORDERED.9
he saw appellant shoot Cesar Castro (p. 54, tsn, Ibid). His
mother then advised him not to tell anyone. Then he went
to the crime scene for a closer look of the victim (p. 55,
tsn, Ibid).
The following day on November 21, 1991, Gemanel was
fetched by police officers from his school and was brought
to the municipal building for questioning. The day after, on
November 22, 1991, he executed a statement (Exhibit "A";
pp. 8-9, tsn, July 14, 1992).
Gemanel further testified that he was present when a slug
was recovered from the front yard of his uncle's (Millares')
house (p. 11, tsn, July 14, 1992). He personally saw the
slug which was subsequently handed to Celso Castro, son
of Cesar Castro. He learned that the slug found was one of
those fired from the service pistol of appellant when the
latter fired his gun during the birthday party of his uncle
(pp. 11-12, tsn, Ibid).
Susan Masakupan, 29 years of age, married and a resident
of Pandiño Street, Siniloan, Laguna, corroborated the
testimony of Gemanel. She testified that on or about 6:00
o'clock in the evening of November 20, 1991, while she
was getting dry clothes hanging at their clothesline located
at their front yard, a man wearing a white polo shirt with
designs and a pair of khaki pants and had a handkerchief
covering his face passed by. Surprised with the man's
covered face, her gaze followed the man until the latter
stopped by victim Cesar Castro. Thereupon the man shot
Cezar Castro and when the latter fell down, the man
continued on shooting at Cesar Castro two (2) or more
shots. After the additional shots, the man ran towards an
alley (pp. 2-5, tsn, July 21, 1992).
SPO4 Efren Palma, Deputy Station Commander of the PNP,
Siniloan, Laguna, testified that three (3) slugs and three
(3) empty shells were recovered from the crime scene on
the night of November 20, 1991 (p. 6, tsn, October 5,
1992).
Josue Flores, property custodian of the PNP, Siniloan,
Laguna, testified that he issued to appellant, who is a
member of PNP, Siniloan, Laguna, (one 1) service firearm,
which was a caliber .45 pistol, Remington, with serial
number 1945012 (pp. 3, 5 and 7, tsn, August 11, 1992).
Florentino Rañada, a member of the Central Intelligence
Service of Siniloan, Laguna, testified that he received from
the Siniloan, Laguna police station the following
specimens:
- one (1) slug .45 caliber ammunition;
- three (3) pieces slug for .45 caliber ammunition;
- three (3)
ammunition;
pieces
empty
shells
for
a
.45
caliber
- one (1) piece caliber Remington pistol with serial number
1945012.
and issued a receipt for them (Exhibits "E" and "E-1"; pp.
17-20, tsn, August 11, 1992).
Rañada further testified that one (1) slug of a .45 caliber
pistol recovered from the body of the victim, which was
turned over to him by Arvee Castro, brother of the victim
(pp. 27-28, tsn, Ibid) has [sic] sent together with the
above specimens to the PNP crime laboratory for ballistic
examination (p. 30, tsn, Ibid).
Susan R. Jalla, PNP officer and criminologist, testified that
she conducted a ballistic examination on the specimens
submitted (Exhibits "H", "I", "J" and "K"; pp. 11-13,
tsn Ibid).
She issued a certification (Exhibit "N") stating: ". . .
microscopic examination, MS-1, MRS-1, MRS-15 revealed
the same individual characteristics as the test bullets and
test cartridges, respectively fired from the abovementioned firearm" (p. 17, tsn, Ibid).
Dr. Priscilla Realeza, Rural Health Physician of Pakil,
Laguna,
testified
that
she
conducted
a postmortem examination on the cadaver of Cesar Castro.
She issued an Autopsy Report (Exhibits "R" and "R-1")
finding that the victim sustained eleven (11) gunshot
wounds (pp. 6-7, tsn Ibid) and that one (1) bullet slug was
extracted from his body (p. 12, tsn, Ibid).10
Accused-appellant, on the other hand, gave the following
version of the incident: On November 20, 1991, he was a
member of the Philippine National Police (PNP) with the
rank of PO3 and detailed as security to the mayor of
Siniloan, Laguna. At around one o'clock in the afternoon of
that day, he arrived at the house of Junior Millares who
was then celebrating his birthday. He participated in a
drinking spree up to three o'clock in the afternoon. On that
occasion, there was no firing of a gun. He did not bring his
gun to the birthday party because he was not in a habit of
bringing his gun when he attended such occasions.11 When
he left the party, he went straight home and slept. He
woke up at around midnight because of an upset stomach
and vomitted. He went back to sleep and woke up the
second time in the morning of November 21, 1991,
changed his clothes, ate his breakfast and went to work at
around eight o'clock in the morning.12 It was only on
November 22, 1991 that he learned from his wife that the
Chief of Police and the Mayor were looking for him and that
he was a suspect in the killing of Castro. After eating his
supper, he went to the municipal building where the Chief
of Police informed him that he was a suspect in the killing
of Castro and was placed under technical arrest. He
surrendered his firearm for ballistic examination to show
that he had nothing to do with the killing. Thereafter, he
did not know what happened to firearm.13
The testimony of accused-appellant as to his whereabouts
during the time the crime was committed was supported by
his wife Herninia Dando who testified before the trial court
that on November 20, 1991 she went home at 4 o'clock in
the afternoon to cook their supper. Less than an hour later,
her husband arrived, went to the sala and slept until the
next morning. They had breakfast together and after that,
they went to their respective places of work.14
Accused-appellant assign the following errors committed by
the trial court, to wit:
I
THE TRIAL COURT ERRED IN GIVING FULL FAITH AND
CREDIT TO THE TESTIMONY OF PROSECUTION WITNESS
ALDWIN OF GEMANEL THAT ACCUSED APPELLANT
APOLINAR DANDO WAS THE ASSAILANT WHO SHOT THE
VICTIM CESAR CASTRO.
II
THE TRIAL COURT ERRED IN FINDING THAT THE EMPTY
SHELLS AND SLUGS SUBMITTED FOR BALLISTIC
EXAMINATION WERE THOSE RECOVERED FROM THE
SCENE OF THE CRIME AND ONE SLUG FROM THE BODY OF
THE VICTIM AND CAME FROM THE SERVICE FIREARM OF
THE ACCUSED APPELLANT.
III
THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE
PHYSICAL EVIDENCE CONSISTING OF EMPTY SHELLS AND
SLUGS PRESENTED BY THE PROSECUTION AS TAINTED OR
POLLUTED, AND HIGHLY UNRELIABLE.
IV
THE TRIAL COURT ERRED IN CONCLUDING THAT THE
TESTIMONY OF ALDWIN GEMANEL AND THE BALLISTIC
EXAMINATION OF THE SERVICE FIREARM OF ACCUSED
APPELLANT CONSTITUTED PROOF BEYOND REASONABLE
DOUBT OF THE GUILT OF THE ACCUSED FOR THE CRIME
OF MURDER.
V
THE TRIAL COURT ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE
CRIME OF MURDER AND IN SENTENCING HIM TO SUFFER
THE PENALTY OF RECLUSION PERPETUA AND TO PAY THE
HEIRS THE SUM OF P1,620,000.00 FOR LOSS OF EARNING
CAPACITY OF THE VICTIM, AND OTHER DAMAGES.15
The first and third issues shall be dealt with together as
they are interrelated.
Accused-appellant assails the testimony of Aldwin Gemanel
alleging that it was marred by inconsistencies and was
incredible, therefore, unworthy of belief. Among these
inconsistencies, according to accused-appellant, are:
1. Gemanel testified that there was a birthday party
attended by accused-appellant in the house of his
(Gemanel's) uncle, Junior Millares, and there he saw
accused-appellant pull out his gun and fire a shot
downward on the floor. However, Millares himself testified
that accused-appellant merely gave to him the gun and it
was he (Millares) who fired two shots. Then he handed the
gun to another guest, Agustin Salinas, who likewise fired
said gun twice and then it was returned to accusedappellant.16
2. Gemanel testified that moments before the shooting of
Castro, he saw accused-appellant in front of the house of
Millares putting a handkerchief to cover his face and then
going inside the tricycle to rest. However, during the
summary examination by the Municipal Judge who
conducted the preliminary investigation, he testified that
he saw accused-appellant on board the tricycle sleeping.17
3. Gemanel testified that he was barely one house away
from the place of the shooting when he heard a shot. When
he looked at the place where the shot came from, he saw a
man already sprawled on the ground and the man, whose
face was covered by a handkerchief, fired two (2) more
shots at the victim and left passing through a pathway. In
other words, there were three (3) shots fired. Later, he
changed his testimony stating that there were four (4)
shots fired.18
4. Gemanel testified that after the shooting, he approached
the victim then he went to his mother telling her that
Castro was shot without naming the assailant. He later
testified that after the shooting, he went home to his
mother and revealed to her the identity of the assailant as
Apolinar Dando. Then he went back to the scene of the
crime and saw that policemen were already investigating
the incident. When asked by the police investigator, he told
him right then and there that it was accused-appellant who
shot the victim.19
The foregoing inconsistencies are but minor details and
they do not discredit the positive identification of accusedappellant as the perpetrator of the crime. The testimony of
Gemanel on the events that transpired on November 20,
1991 was clear, straightforward and consistent. Thus:
DIRECT-EXAMINATION BY FISCAL:
Q: - On November 20, 1991, where were you?
WITNESS
A: - I was on Pandeño Street Siniloan, Laguna, sir.
Q: - You were at the middle part of that area. Will you
kindly tell to this Honorable Court your point of reference
as to the place where you were at the time?
A: - What I am saying is that I am at the middle of
Pandeño Street, sir.
FISCAL
Q: - And when you said you were at the middle portion of
Pandeño Street, will you tell this Honorable Court the
nearest house where you were at the time?
WITNESS
A: - Cesar Castro's house, sir.
Q: - And what are you doing then?
A: - None, sir, I was then going to my grandmother's
house.
Q: - And were you able to proceed to the house of your
grandmother?
A: - Yes, sir.
Q: - In what particular place in Brgy. Pandeño?
Q: - But prior to proceeding to the house of your "lola" did
you go to any other place?
A: - About the middle of that area, sir.
A: - Yes, sir.
Q: - Where?
A: - To my uncle Junior's house, sir, where there was a
drinking spree.
Q: - Do you know the person who fired his gun at the
time?
Q: - Do you know why them was a drinking spree at the
time?
A: - Yes, sir, Polly Dando.
Q: - Do you know Polly Dando personally?
A: - Yes, sir, it was my uncle Junior's birthday.
A: - Yes, sir.
Q: - What was your purpose in going to the place of your
uncle's birthday?
Q: - Do you know the real name of Polly Dando?
A: - I was going to look for my father, sir.
A: - Yes, sir, Apolinario Dando.
Q: - Did you. . .while you were there, by the way, where is
the house of your uncle located?
Q: - Where did you see Apolinario Dando fired his gun?
A: - On Pandeño Street, sir.
Q: - How far from your house, how many houses apart?
A: - About 15 houses, sir.
Q: - What is the full name of your uncle Junior?
A: - Junior Millares, sir.
Q: - While you were there at the birthday celebration of
your uncle Junior, what did you notice thereat?
A: - Under the table pointing downwards, sir.
Q: - Do you know the caliber used by Dando?
ATTY. RAGAZA
Incompetent, your Honor.
COURT
Objection noted, if he knows.
WITNESS
WITNESS
A: - Yes, sir.
A: - There was a firing of gun, sir.
FISCAL
Q: - Will you tell this Honorable Court the caliber?
Q: - Where did you go?
A: - A .45 caliber, "yung lapad", sir.
A: - On the street, sir.
Q: - Have you already seen a gun of that caliber?
Q: - Were you alone at the time?
A: - Yes, sir.
A: - Yes, sir.
Q: - Where?
Q: - While you were on the street, did you notice of any
unusual incident?
A: - On TV and on posters, sir.
xxx-xxx-xxx
Q: - After that, where did you go?
A: - I went to my grandmother, sir.
A: - Yes, sir.
Q: - What was that incident?
A: - I saw Polly boarded a tricycle, sir.
Q: - Where is the house of your grandmother located?
Q: - When you said Polly Dando boarded a tricycle, you
mean to say Dando went somewhere else?
A: - Also an Pandeño Street, sir.
WITNESS
Q: - How far from the house of your uncle Junior?
A: - No, he merely sat on board a tricycle which was
parked there, sir.
A: - Three houses away, sir.
Q: - What did you do in the house of your lola?
A: - I entered the house, sir.
Q: - After that, what else happened?
A: - I went out, sir.
Q: - This tricycle has a driver?
A: - None, sir.
Q: - What else did you notice?
A: - I saw Polly Dando placed a handkerchief over his face,
sir.
xxx-xxx-xxx
FISCAL
Q: - Do you know the color of the handkerchief?
A: - Yes, sir, white with small drawings.
Q: - Will you tell this Honorable Court the attire used by
the accused Apolinario Dando?
A: - He was wearing a white polo shirt, sir, and a khaki
pants.
Q: - And again, while there on the street, did you again
notice any unusual incident?
A: - Yes, sir.
Q: - What was that incident?
A: - Polly Dando got off the tricycle, sir.
Q: - Where did he go?
A: - Towards the plaza, sir.
Q: - And what did you do?
Q: - After you saw Apolinar Dando sat on a tricycle and put
a handkerchief on his face, what else happened?
A: - I followed Polly, sir.
WITNESS
Q: - Up to what point did you follow him?
A: - He merely rested for a short while, sir.
A: - About 2 houses, sir.
Q: - After that, what happened?
Q: - While following Dando, what happened next?
A: - I left, sir.
A - I entered a bakery, sir.
Q: - You mean to say after you saw Apolinar sat on a
tricycle and put a handkerchief on his face and rested for a
while, you went to your lola's house?
Q: - What was your purpose in going to that bakery?
A: - Yes, sir.
Q: - Were you able to buy bread?
Q: - After that, where did you proceed?
A: - No, sir.
A: - I merely stayed on the street, sir.
A: - I was going to buy bread, sir.
FISCAL
Q: - Where did you proceed after that?
A: - I heard a shot, sir.
Q: - What did you do. . . .
A: - I saw Cesar Castro already sprawled on the ground,
sir.
Q: - Was Cesar Castro alone at the time?
A: - Yes, sir.
ATTY. RAGAZA
Q: - And do you know what was the cause of Cesar's falling
to the ground?
I moved to strike out the answer for not being responsive.
ATTY. RAGAZA
COURT
Incompetent, your Honor, he already saw Cesar already
sprawled on the ground.
Sustained
FISCAL
Q: - While you were at the bakery, what else happened?
WITNESS
A: - I heard a shot, sir.
Q: - What shot did you hear?
A: - A gunshot, sir.
Q: - When you heard that gunshot, what did you do?
A: - I went beside the street, sir.
Q: - What did you find out?
COURT
May answer. We will see the answer.
WITNESS
A: - No, sir.
FISCAL
Q: - At that precise moment when you heard the gunshot
and you go (sic) to the street to find our where the shot
came from, where was Apolinar Dando at the time?
ATTY. RAGAZA
There is no testimony that Apolinar Dando was present at
the time.
COURT
Q: - But you did not have much interest, that is why you
stop following him and stopped at a bakery?
There was no testimony that Apolinar Dando was them.
The fiscal was asking where was Apolinar at the time. He
was not asking why he was there. He did not assume.
A: - Yes, sir.
ATTY. RAGAZA
WITNESS
Q: - And then you heard a shot?
A: - I saw him walked a few steps and then fired his gun at
Cesar, on his side, sir.
xxx-xxx-xxx
WITNESS
A: - Yes, sir.
Q: - After you saw Apolinar for the second time at the
sprawled body of Cesar, what else happened?
Q: - Exactly, where were you when you heard the first
shot?
A: - He ran and went towards an alley, "paraanan", sir.20
A: - In the bakery about to buy bread, sir.
On cross-examination, Gemanel gave substantially the
same testimony:
Q: - Where were you facing?
Q: - In answer to the question of the Court in the last
hearing, you said you saw Dando going to the plaza and
you followed him far a distance of about 2 houses, during
the time you were following, did you meet any person?
A: - None, sir.
Q: - And during all the time that you were following Dando,
was he wearing a handkerchief over his face?
A: - Yes, sir.
A: - Towards the bakery, sir.
Q: - Was there anybody attending to you in the bakery?
A: - Yes, sir.
Q: - Now, you were merely waiting for bread that you
would buy in that bakery?
A: - Yes, sir, when suddenly I heard a shot.
Q: - How many shots did you hear while you were in the
bakery?
A: - First, I heard one shot so I went out of the bakery and
I saw Ka Cesar being shot, sir.
Q: - How many shots in all did you hear?
Q: - After that first shot, did you hear any other shot?
A: - I heard, Your Honor.
COURT:
A: - Three, sir.
Q: - What was the interval between the first and the
second shot?
Q: - How many shots did you hear after hearing the first
shot?
A: - Three to four shots, Your Honor.
A: - First, I was inside the bakery when I heard a shot so I
immediately went out and saw Dando firing two shots on
Ka Cesar who was already lying on the ground, sir.21
xxx-xxx-xxx
ATTY. BALCE:
Q: - You heard a shot and you went out and stopped at
this point marked by an "x"?
ATTY. BALCE:
I move that the last answer be placed in tagalog.
A: - "Mga tatlo o apat"
Q: - What did you say?
A: - "Tatlo po o apat".
A: - Yes, sir.
ATTY. BALCE:
Q: - And it was only a gunshot that you heard?
But your first answer that I heard was "tatlo bale apat."
A: - On that moment, one.
A: - Yes sir.
Q: - Just after the shot, did you not hear any person crying
out in panic.
COURT:
A: - Nobody, sir.
COURT:
Q: - Did you know where the shots came from?
A: - Yes, Your Honor.
Q: - Where?
A: - From the house of Ka Cesar.
COURT:
Q: - After hearing those shots, what did you observe, if
any?
A: - The person with his handkerchief covering his face,
was running and entered an alley, "paraanan".22
Well-settled is the rule that "inconsistencies on minor and
trivial matters only serve to strengthen rather than weaken
the credibility of witnesses for they erase the suspicion of
rehearsed
testimony."23 Moreover,
the
alleged
inconsistencies refer only to inconsequential details and not
to the crux of the case that Gemanel saw accusedappellant gun down Castro. Gemanel never wavered on
this point even for a single moment. The consistency on
the part of Gemanel in identifying accused-appellant as the
perpetrator of the crime makes him a credible witness. His
testimony cannot be discredited by a mere alibi and denial
on the part of accused-appellant.
Alibi is one of the weakest defenses in criminal cases and it
should be rejected when the identity of the accused is
sufficient
and
positively
established
by
the
prosecution.24 Moreover, in order to overcome the evidence
of the prosecution, the accused must establish not only
that he was somewhere else when the crime was
committed but also that it was physically impossible for
him to have been at the scene of the crime at the time it
was committed.25 In the present case, accused-appellant
failed to show that it was physically impossible for him to
be at the scene of the crime when it was committed. He
even admitted that his house was only about one-and-ahalf kilometers away from the house of Millares,26 which
was very near the place where Castro was shot to death.
Undoubtedly, the distance did not render it impossible for
accused-appellant to be at the scene of the crime at the
time it was committed. Accused-appellant's defense of alibi
must necessarily fail.
As to the alleged inconsistency between the testimonies of
Gemanel and that of Millares, we find the testimony of
Gemanel to be more credible since the inconsistency lies in
the affidavit and testimony of Millares himself. In his
affidavit, Millares averted that he fired the gun first and
then accused-appellant fired the gun twice.27 In his
testimony in court, however, he (Millares) claimed that
after firing the gun, he gave the gun to Agustin
Salinas.28 Confronted with the inconsistent statements of
Millares and the straightforward and categorical testimony
of Gemanel, which was corroborated by that of Susana
Masacupan, this Court believes and gives credence to the
latter.
When he testified in court, Gemanel was then only thirteen
(13) years old and a second year high school student at
Siniloan Public Highhool. Indeed "the testimony of a child
of sound mind is likely to be more correct and truthful than
that of older persons, so that once established that he has
fully understood the character and nature of an oath, his
testimony should be given full credence.29
In the second and third issues raised in his brief, accusedappellant opines that there is no proof showing that the
empty shells and slugs recovered at the scene of the crime
were the same empty shells and slugs submitted for
ballistic examination. According to accused-appellant, the
relatives of the victim tampered with these pieces of
evidence making the same tainted or polluted, therefore,
unreliable.
Other than these bare allegations, however, accusedappellant failed to prove by convincing evidence any
irregularity in the handling by the police officers of these
particular pieces of evidence. The ballistic examination
report is thus clothed with the presumption of regularity. At
any rate, the presentation of weapons (or the slugs and
bullets, as in this case) used and ballistic examination are
not prerequisites for conviction.30 The corpus delicti and
the positive identification of accused-appellant as the
perpetrator of the crime are more than enough to sustain
his conviction.
Anent the fifth issue, accused-appellant contends that the
trial court erred in convicting him for murder and awarding
in favor of the victim's heirs the sum of P1,620,000.00 for
his loss of earning capacity and other damages.
Art. 248 of the Revised Penal Code reads:
Art. 248. Murder. Any person who, not falling within the
provisions of Article 246 shall kill another, shall be guilty of
murder and shall be punished by reclusion temporal in its
maximum period to death31 if committed with any of the
following circumstances:
1. With treachery, taking advantage of superior strength,
with the aid of armed men, or employing means to weaken
the defense or of means or persons to insure or afford
impunity.
xxx-xxx-xxx
5. With evident premeditation.
xxx-xxx-xxx
The essence of treachery is that the attack comes without
a warning and in a swift, deliberate and unexpected
manner, affording the hapless, unarmed and unsuspecting
victim no chance to resist or escape.32 In this case,
accused-appellant, whose face was covered by a
handkerchief; approached the victim, who was merely
standing by the gate in front of his house, and shot him.
The victim was undoubtedly caught unaware and had no
chance of putting up any defense. Clearly, treachery
attended the commission of the crime since the attack,
although frontally, was no less sudden and unexpected,
giving the victim no opportunity to repel it or offer any
defense of his person.33
The trial court further established that there was evident
premeditation and that accused-appellant used "craft,
fraud or disguise" in committing his dastardly act:
. . . When DANDO (accused-appellant) boarded the tricycle
parked in front of the residence of Angelito Millares, Jr., he
did so not to rest or sleep there. He was there, with a
handkerchief over his face, lying in wait for Cesar Castro to
come out and stand by the gate of his house as he
customarily did while taking a rest. And DANDO stayed
inside the tricycle for a couple of hours, like an eagle
waiting for its prey. From the parked tricycle, DANDO could
clearly see the gate of Cesar Castro's house, 100 to 150
meters away. DANDO'S stay inside the tricycle lasted for
about two (2) hours, a sufficient time for him to reflect on
the consequences of his plan to kill Cesar Castro. And when
Cesar Castro did finally come out, and stood there
unarmed by the gate of his house, DANDO swiftly swooped
down on his prey and triggered the burst from his service
firearm which snuffed the life of his victim.34
Given the foregoing attendant aggravating circumstances,
the trial court properly sentenced accused-appellant to
suffer the penalty of reclusion perpetua. However, the
amount it awarded in favor of the heirs of the victim should
be modified in accordance with prevailing jurisprudence.
The trial court correctly awarded the amount of P50,000 as
indemnity for the death for Cesar Castro. Said amount is
awarded without need of further proof other than the death
of the victim.35 In addition, the heirs are also entitled to
receive a compensation for the loss of earning capacity of
the victim. The formula for computing the same as
established in decided cases36 is as follows:
Net Earning Capacity = Life Expectancy x Gross Annual
Income - Necessary Living Expenses
The life expectancy is equivalent to two thirds (2/3)
multiplied by the difference of 80 and the age of the
deceased.37 Since Castro was 47 years old at the time of
his death, his life expectancy was 22 more years.38 Celso
Castro testified that his father earned P3,000.00 monthly
or P36,000.00 annually from the sash factory. In addition,
the vic;’
tim's annual income from farming, as found by the trial
court, was P53,000.00. The gross annual income of the
deceased was P89,000.00. Allowing for necessary living
expenses of fifty percent (50%) of his gross earnings, his
total net earning capacity amounts to P979,000.00.39
As to the expenses actually incurred by the family of the
victim for the wake and burial, Celso Castro was able to
prove during trial that they incurred the sum of
P39,974.00. The amount of P35,974.00 awarded by the
trial court as reimbursement of funeral expenses is,
accordingly, increased to P39,974.00.
WHEREFORE, premises considered, the decision of the trial
court is hereby AFFIRMED with MODIFICATION that
accused-appellant shall pay the heirs of the victim the
following amounts:
1. death indemnity in the amount of P50,000.00;
2. compensation for loss of earning capacity in the amount
of P979,000.00; and
3. reimbursement of funeral expenses in the amount of
P39,974.00.
SO ORDERED.
Davide,
Jr.,
C.J.,
Santiago, JJ., concur.
Puno,
Pardo
and
Ynares-