Mitigating Full Text.docx

FIRST DIVISION G.R. No. 103613

February 23, 2001

PEOPLE OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and ELADIO C. TANGAN, respondents. x------------------x G.R. No. 105830

February 23, 2001

ELADIO C. TANGAN, petitioner, vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents. YNARES-SANTIAGO, J.: At around 11:30 p.m. of December 1, 1984, Navy Captain Eladio C. Tangan was driving alone on Roxas Boulevard heading south. He had just come from Buendia Avenue on an intelligence operation. At the same time, Generoso Miranda, a 29-year old optometrist, was driving his car in the same direction along Roxas Boulevard with his uncle, Manuel Miranda, after coming from the Ramada Hotel. Generoso was moving ahead of Tangan. Suddenly, firecrackers were thrown in Generoso's way, causing him to swerve to the right and cut Tangan's path. Tangan blew his horn several times. Generoso, slowed down to let Tangan pass. Tangan accelerated and overtook Generoso, but when he got in front, Tangan reduced speed. Generoso tried four or five times to overtake on the right lane but Tangan kept blocking his lane. As he approached Airport Road, Tangan slowed down to make a U-tum. Generoso passed him, pulled over and got out of the car with his uncle. Tangan also stopped his car and got out. As the Mirandas got near Tangan's car, Generoso loudly retorted, " Putang ina mo, bakit mo ginigitgit ang sasakyan ko?" Generoso and Tangan then exchanged expletives. Tangari pointed his hand to Generoso and the latter slapped it, saying, "Huwag mo akong dinuduro! Sino ka ba, ano ba ang pinagmamalaki mo?" Tangan countered, "Ikaw, ano ang gusto mo?" With this, Tangan went to his car and got his .38 caliber handgun on the front seat. The subsequent events per account of the parties' respective witnesses were conflicting: According to the prosecution witnesses, particularly, Mary Ann Borromeo, Rosalia Cruz and Manuel Miranda, the accused pointed his gun at Generoso Miranda and when Manuel Miranda tried to intervene, the accused pointed his gun at Manuel Miranda, and after that the accused pointed again the gun to Generoso Miranda, the accused shot Generoso Miranda at a distance of about a meter but because the arm of the accused was extended, the muzzle of the gun reached to about more or less one foot away from the body of Generoso Miranda. The shot hit the stomach of Generoso Miranda causing the latter to fall and while still conscious, Generoso Miranda told Manuel Miranda, his uncle, to get the gun. Manuel Miranda grappled for the possession of the gun and during their grappling, Rosalia Cruz intervened and took hold of the gun and after Rosalia Cruz has taken hold of the gun, a man wearing a red T-shirt took the gun from her. The man in T-shirt was chased by Manuel Miranda who was able to get the gun where the man in red T-shirt placed it. On the other hand, the defense, particularly the accused and his witness by the name of Nelson Pante claimed that after the gun was taken by the accused from inside his car, the Mirandas started to grapple for possession of the gun and during the grappling, and while the two Mirandas were trying to wrest away the gun from the accused, they fell down at the back of the car of the accused. According to the accused, he lost the possession of the gun after falling at the back of his car and as soon as they hit the ground, the gun fell, and it exploded hitting Generoso Miranda.1 After the gun went off, Tangan ran away. Meanwhile, Generoso lay on the ground bloodied. His uncle, Manuel, looked for the gun and ran after Tangan, joining the mob that had already pursued him. Tangan found a policeman who allowed him to enter his patrol car. Manuel arrived and told the policeman that Tangan had just shot his nephew. Then he went back to where Generoso lay and there found two ladies, later identified as Mary Ann Borromeo and Rosalina Cruz, helping his nephew board a taxi. Manuel suggested that Generoso be brought to the hospital in his car. He was rushed to the Philippine General Hospital but he expired on the way. 1âw phi 1.nêt

Tangan was charged with the crime of murder with the use of an unlicensed firearm.2 After a reinvestigation, however, the information was amended to homicide with the use of a licensed firearm,3 and he was separately charged with illegal possession of unlicensed firearm.4 On arraignment, Tangan entered a plea of not guilty in the homicide case, but moved to quash the information for illegal possession of unlicensed firearm on various grounds. The motion to quash was denied, whereupon he filed a petition for certiorari with this Court.5 On November 5, 1987, said petition was dismissed and the joint trial of the two cases was ordered.6 During the trial, the prosecution and the defense stipulated on the following: that the amount of P126,000.00 was incurred for the funeral and burial expenses of the victim;7 that P74,625.00 was incurred for attorneys fees; and that the heirs of Generoso suffered moral damages, the amount of which is left for the courts to determine. After trial, the lower court acquitted Tangan of illegal possession of firearm, but convicted him of homicide. The privileged mitigating circumstance of incomplete self-defense and the ordinary mitigating circumstances of sufficient provocation on the part of the offended party and of passion and obfuscation were appreciated in his favor; consequently, the trial court ordered him to suffer an indeterminate penalty of two (2) months of arresto mayor, as minimum, to two (2) years and four (4) months of prision correccional, as maximum, and to indemnify the heirs of the victim.8 Tangan was released from detention after the promulgation of judgment and was allowed bail in the homicide case. Private complainants, the heirs of Generoso Miranda, filed a petition for review with this Court, docketed as G.R. No. 102677, challenging the civil aspect of the court a quo's decision, but the same was dismissed for being premature. On the other hand, Tangan appealed to the Court of Appeals, which affirmed the judgment of the trial court but increased the award of civil indemnity to P50,000.00.10 His subsequent motion for reconsideration and a motion to cite the Solicitor General in contempt were denied by the Court of Appeals.11 The office of the Solicitor General, on behalf of the prosecution, alleging grave abuse of discretion, filed a petition for certiorari under Rule 65, docketed as G.R. No.103613, naming as respondents the Court of Appeals and Tangan, where it prayed that the appellate court's judgment be modified by convicting accused-appellant of homicide without appreciating in his favor any mitigating circumstance.12 Subsequently, the Office of the Solicitor General, this time acting for public respondent Court of Appeals, filed a motion for extension to file comment to its own petition for certiorari.13 Discovering its glaring error, the Office of the Solicitor General later withdrew its motion for extension of time.14 Tangan filed a Reply asking that the case be submitted for decision.15 Meanwhile, Tangan filed a separate petition for review under Rule 45, docketed as G.R. No. 105830.16 Since the petition for certiorari filed by the Solicitor General remained unresolved, the two cases were consolidated.17 The Office of the Solicitor General filed a manifestation in G.R. No. 105830, asking that it be ex6used from filing a comment to Tangan's petition for review, in order to avoid taking contradictory positions.18 In the recent case of People v. Velasco and Galvez,19 we held that the prosecution cannot avail of the remedies of special civil action on certiorari, petition for review on certiorari, or appeal in criminal cases. Previous to that, we categorically ruled that the writ of certiorari cannot be used by the State in a criminal case to correct a lower court's factual findings or evaluation of the evidence.20 Rule 117, Section 7, of the Revised Rules of Criminal Procedure, is clear: Former conviction or acquittal; double jeopardy. - When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other fom1al charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. However, the conviction of the accused shall not be a bar to another prosecution for an offense which, necessarily includes the offense charged in the former complaint or information under any of the following instances: (a) the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge;

(b) the facts constituting the graver charge became known or were discovered only after a pleas was entered in the former complaint or information; or (c) the plea of guilty to the lesser offense was made without the consent of the fiscal and of the offended party, except as provided in section 1(f) of Rule 116. In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense. Based on the foregoing, the Solicitor General's petition for certiorari under Rule 65, praying that no mitigating circumstance be appreciated in favor of accused-appellant and that the penalty imposed on him be correspondingly increased, constitutes a violation of Tangan's right against double jeopardy and should be dismissed. We now come to the petition for review filed by Tangan. It is noteworthy that during the trial, petitioner Tangan did not invoke self-defense but claimed that Generoso was accidentally shot. As such, the burden of proving selfdefense,21 which normally would have belonged to Tangan, did not come into play. Although Tangan must prove his defense of accidental firing by clear and convincing evidence,22 the burden of proving the commission of the crime remained in the prosecution. Both the trial court and the Court of Appeals appreciated in favor of Tangan the privileged mitigating circumstance of incomplete self-defense under Article 13 (1), in relation to Article 11 (1), of the Revised Penal Code, to wit: ARTICLE 11. Justifying circumstances. - The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur: First. Unlawful aggression. Second. Reasonable necessity of the means employed to prevent or repel it. Third. Lack of sufficient provocation on the part of the person defending himself. xxx

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ARTICLE 13. Mitigating Circumstances. - The following are mitigating circumstances: 1. Those mentioned in the preceding Chapter, when all the requisites necessary to justify the act or to exempt from criminal liability in the respective cases are not attendant. Incomplete self-defense is not considered as a justifying act, but merely a mitigating circumstance; hence, the burden of proving the crime charged in the information is not shifted to the accused.23 In order that it may be successfully appreciated, however, it is necessary that a majority of the requirements of self-defense be present, particularly the requisite of unlawful aggression on the part of the victim.24 Unlawful aggression by itself or in combination with either of the other two requisite suffices to establish incomplete self-defense. Absent the unlawful aggression, there can never be self-defense, complete or incomplete,25 because if there is nothing to prevent or repel, the other two requisites of defense will have no basis.26 There is no question that the bullet which hit the victim was fired from the caliber. 38, which was issued to Tangan by the Philippine Navy. The cause of death was severe hemorrhage secondary to gunshot wound of the abdomen, caused by the bullet fired from a gun of the said caliber. The prosecution claimed that Tangan shot the victim pointblank in the stomach at a distance of about one foot. On the other hand, Tangan alleged that when he grappled with Generoso and Manuel Miranda for possession of the gun, it fell to the ground and accidentally fired, hitting the victim. When the testimonies of witnesses in open court are conflicting in substantial points, the calibration of the records on appeal becomes difficult. It is the word of one party against the word of the other. The reviewing tribunal relies on the cold and mute pages of the records, unlike the trial court which had the unique opportunity of observing first-hand that elusive and incommunicable evidence of the witness' deportment on the stand while testifying.27 The trial court's

assessments of the credibility of witnesses is accorded great weight and respect on appeal and is binding on this Court,28 particularly when it has not been adequately demonstrated that significant facts and circumstances were shown to have been overlooked or disregarded by the court below which, if considered, might affect the outcome hereof.29 The rationale for this has been adequately explained in that, The trial court has the advantage of observing the witnesses through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply; or the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, and carriage and mien.30 Equally, when a person fabricates a story, he usually adopts a simple account because a complex one might lead to entanglement from which he may find it hard to extricate himself. Along the same line, the experience of the courts and the general observations of humanity teach us that the natural limitations of our inventive faculties are such that if a witness delivers in court a false narrative containing numerous details, he is almost certain to fall into fatal inconsistencies to make statements which can be readily refuted, or to expose in his demeanor the falsity of his message.31 Aside from this, it is not also unusual that the witness may have been coached before he is called to the stand to testify. Somewhere along the painstaking review of the evidence on record, one version rings the semblance of truth, not necessarily because it is the absolute truth, but simply because it is the best approximation of the truth based on the declarations of witnesses as corroborated by material evidence. Perforce, the other version must be rejected. Truth and falsehood, it has been well said, are not always opposed to each other like black and white, but oftentimes, and by design, are made to resemble each other so as to be hardly distinguishable.32 Thus, after analyzing the conflicting testimonies of the witnesses, the trial court found that: When the accused took the gun from his car and when he tried to get out of the car and the two Mirandas saw the accused already holding the gun, they started to grapple for the possession of the gun that it went off hitting Generoso Miranda at the stomach. The court believes that contrary to the testimony of the accused, he never lost possession of the gun for if he did and when the gun fell to the ground, it will not first explode or if it did, somebody is not holding the same, the trajectory of the bullet would not be perpendicular or horizontal.33 The Court of Appeals agreed The finding of the lower court that Generoso Miranda III was shot while the accused and the Mirandas were grappling for the possession of the gun immediately after the accused had taken his gun from inside his car and before the three allegedly fell to the ground behind the car of the accused is borne out by the record. The court also agrees with the court below that it was the accused-appellant who shot and killed Generoso Miranda III. If the accused-appellant did not shoot Generoso III during the scuffle, he would have claimed accidental killing by alleging that his gun exploded during the scuffle instead of falsely testifying that he and the Mirandas fell to the ground behind his car and the gun exploded in the possession of Manuel Miranda. The theory of the prosecution that the shooting took place while the three were grappling for the possession of the gun beside the car of appellant is completely in harmony with the findings and testimony of Dr. Ibarrola regarding the relative position of the three and the precarious nearness of the victim when accused-appellant pulled the trigger of his gun. Dr. Ibarrola explained that the gun was about two (2) inches from the entrance wound and that its position was almost perpendicular when it was fired. It was in fact the closeness of the Mirandas visà-vis appellant during the scuffle for the gun that the accused-appellant was compelled to pull the trigger in answer to the instinct of self-preservation.34 No convincing reason appears for the Court to depart from these factual findings, the same being ably supported by the evidence on record. In violent deaths caused by gunshot wounds, the medical report or the autopsy on the cadaver of the victim must as much as possible narrate the observations on the wounds examined. It is material in determining the truthfulness of the events narrated by the witnesses presented. It is not enough that the witness looks credible and assumes that he indeed witnessed the criminal act. His narration must be substantiated by the physical evidence available to the court.

The medical examiner testified that the distance between the muzzle of the gun and the target was about 2 inches but definitely not more than 3 inches. Based on the point of exit and the trajectory transit of the wound, the victim and the alleged assailant were facing each other when the shot was made and the position of the gun was almost perpendicular when fired.35 These findings disprove Tangan's claim of accidental shooting. A revolver is not prone to accidental firing because of the nature of its mechanism, unless it was already first cocked and pressure was exerted on the trigger. If it were uncocked, then considerable pressure had to be applied on the trigger to fire the revolver.36 Having established that the shooting was not accidental, the next issue to be resolved is whether Tangan acted in incomplete self-defense. The element of unlawful aggression in self-defense must not come from the person defending himself but from the victim. A mere threatening or intimidating attitude is not sufficient.37 Likewise, the exchange of insulting words and invectives between Tangan and Generoso Miranda, no matter how objectionable, could not be considered as unlawful aggression, except when coupled with physical assault.38 There being no lawful aggression on the part of either antagonists, the claim of incomplete self-defense falls. Tangan undoubtedly had possession of the gun, but the Mirandas tried to wrestle the gun from him. It may be said that the former had no intention of killing the victim but simply to retain possession of his gun. However, the fact that the victim subsequently died as a result of the gunshot wound, though the shooter may not have the intention to kill, does not absolve him from culpability. Having caused the fatal wound, Tangan is responsible for all the consequences of his felonious act. He brought out the gun, wrestled with the Mirandas but anticipating that the gun may be taken from him, he fired and fled. The third requisite of lack of sufficient provocation on the part of the person defending himself is not supported by evidence. By repeatedly blocking the path of the Mirandas for almost five times, Tangan was in effect the one who provoked the former. The repeated blowing of horns, assuming it was done by Generoso, may be irritating to an impatient driver but it certainly could not be considered as creating so powerful an inducement as to incite provocation for the other party to act violently. The appreciation of the ordinary mitigating circumstances of sufficient provocation and passion and obfuscation under Article 13, paragraphs 4 and 6,39 have no factual basis. Sufficient provocation as a requisite of incomplete self-defense is different from sufficient provocation as a mitigating circumstance. As an element of self-defense, it pertains to its absence on the part of the person defending himself; while as a mitigating circumstance, it pertains to its presence on the part of the offended party. Besides, only one mitigating circumstance can arise out of one and the same act.40 Assuming for the sake of argument that the blowing of horns, cutting of lanes or overtaking can be considered as acts of provocation, the same were not sufficient. The word "sufficient" means adequate to excite a person to commit a wrong and must accordingly be proportionate to its gravity.41 Moreover, Generoso's act of asking for an explanation from Tangan was not sufficient provocation for him to claim that he was provoked to kill or injure Generoso.42 For the mitigating circumstance of passion and obfuscation to be appreciated, it is required that (1) there be an act, both unlawful and sufficient to produce such a condition of mind; and (2) said act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity.43 In the case at bar, Tangan could not have possibly acted upon an impulse for there was no sudden and unexpected occurrence which would have created such condition in his mind to shoot the victim. Assuming that his path was suddenly blocked by Generoso Miranda due to the firecrackers, it can no longer be treated as a startling occurrence, precisely because he had already passed them and was already the one blocking their path. Tangan's acts were done in the spirit of revenge and lawlessness, for which no mitigating circumstance of passion or obfuscation can arise. With respect to the penalty, under the laws then existing, homicide was penalized with reclusion temporal,44 but if the homicide was committed with the use of an unlicensed firearm, the penalty shall be death.45 The death penalty, however, cannot be imposed on Tangan because in the meantime, the 1987 Constitution proscribed the imposition of death penalty; and although it was later restored in 1994, the retroactive application of the death penalty is unfavorable to him. Previously the accused may be prosecuted for two crimes: (1) homicide or murder under the Revised Penal Code and (2) illegal possession of firearm in its aggravated form under P.D. 1866.46 P.D. 1866 was amended by R.A. No. 8294,47 which provides that if an unlicensed firearm is used in murder or homicide, such use of unlicensed firearm shall be appreciated as an aggravating circumstance and no longer

considered as a separate offense,48 which means that only one offense shall be punished - murder or homicide. However, this law cannot apply retroactively because it will result in the imposition on Tangan of the maximum period of the penalty. Moreover, under Rule 110, Section 8 of the Revised Rules of Criminal Procedure,49 the aggravating circumstance must be alleged in the information. Being favorable, this new rule can be given retroactive effect as they are applicable to pending cases.50 In any case, Tangan was acquitted of the illegal possession case. Consequently, Tangan should be sentenced to suffer the penalty of reclusion temporal. Pursuant to Article 64 of the Revised Penal Code, if the prescribed penalty is composed of three periods, and there is neither mitigating nor aggravating circumstance, the medium period shall be applied. Applying the Indeterminate Sentence law, the maximum of the indeterminate penalty shall be that which, in view of the attendant circumstances, may be properly imposed, which in this case is reclusion temporal medium with an imprisonment range of from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. The minimum of the indeterminate sentence shall be the next lower degree which is prision mayor with a range of from six (6) years and one (1) day to twelve (12) years.51 Hence, petitioner Tangan is sentenced to an indeterminate penalty of six (6) years and one (1) day of prision mayor, as minimum; to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. The death indemnity of P30,000.00 was correctly increased by the appellate court to P50,000.00 in line with jurisprudence.52 Moral damages are awarded in criminal cases involving injuries if supported by evidence on record,53 but the stipulation of the parties in this case substitutes for the necessity of evidence in support thereof. Though not awarded below, the victim's heirs are entitled to moral damages in the amount of P50,000.00 which is considered reasonable considering the pain and anguish brought by his death.54 WHEREFORE, the petition in G.R. No. 103613 is DISMISSED. The appealed decision subject of G.R. No. 105830 is AFFIRMED with the following MODIFICATIONS: (1) Tangan is sentenced to suffer an indeterminate penalty of six (6) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum, with all the accessory penalties. (2) Tangan is ordered to pay the victim's heirs P50,000.00 as civil indemnity, P42,000.00 as funeral and burial expenses, P5,000.00 as attorney's fees, and P50,000.00 as moral damages. SO ORDERED. Davide, Jr., Puno, Kapunan, and Pardo, JJ., concur.

SECOND DIVISION

G.R. No. L-30801 March 27, 1974 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DOMINGO URAL, accused-appellant. Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Antonio A. Torres and Solicitor Vicente P. Evangelista for plaintiff-appellee. Vicente Cerilles and Emeliano Deleverio for accused-appellant.

AQUINO, J.:p This is an appeal of defendant Domingo Ural from the decision of Judge Vicente G. Ericta of the Court of First Instance of Zamboanga del Sur, convicting him of murder, sentencing him to reclusion perpetua, and ordering him to indemnify the heirs of Felix Napola in the sum of twelve thousand pesos and to pay the costs (Criminal Case No. 3280). The judgment of conviction was based on the testimony of Brigido Alberto, a twenty-six year old former detention prisoner in Buug, Zamboanga del Sur. He had been accused of murder and then set at liberty on June 9, 1966 after posting bail. He went to Barrio Camongo, Dumalinao where his father resided. On July 31, 1966, he intended to go to his residence at Barrio Upper Lamari, Buug but night overtook him in the town. He decided to sleep in the Buug municipal building where there would be more security. Upon arrival in the municipal building at around eight o'clock, he witnessed an extraordinary occurrence. He saw Policeman Ural (with whom he was already acquainted) inside the jail. Ural was boxing the detention prisoner, Felix Napola. As a consequence of the fistic blows, Napola collapsed on the floor. Ural, the tormentor, stepped on his prostrate body. Ural went out of the cell. After a short interval, he returned with a bottle. He poured its contents on Napola's recumbent body. Then, he ignited it with a match and left the cell. Napola screamed in agony. He shouted for help. Nobody came to succor him. Much perturbed by the barbarity which he had just seen, Alberto left the municipal building. Before his departure, Ural cautioned him: "You better keep quiet of what I have done" (sic). Alberto did not sleep anymore that night. From the municipal building, he went to the crossing, where the cargo trucks passed. He hitchhiked in a truck hauling iron ore and went home. Doctor Luzonia R. Bakil, the municipal health officer, certified that the thirty-year old victim, whom she treated twice, sustained second-degree burns on the arms, neck, left side of the face and one-half of the body including the back (Exh. A). She testified that his dermis and epidermis were burned. If the burns were not properly treated, death would unsue from toxemia and tetanus infection. "Without any medical intervention", the burns would cause death", she said. She explained that, because there was water in the burnt area, secondary infection would set in, or there would be complications. Napola died on August 25, 1966. The sanitary inspector issued a certificate of death indicating "burn" as the cause of death (Exh. B). The trial court fittingly deplored the half-hearted manner in which the prosecution (represented by Fiscal Roque and the private prosecutor, Delfin Agbu) handled the case. It bewailed the prosecution's failure to present as witnesses Juanito de la Serna and Ernesto Ogoc, the detention prisoners who saw the burning of Napola. They had executed a joint affidavit which was one of the bases of the information for murder.1

It noted that Rufina Paler, the victim's widow, who was present in court, was a vital witness who should have been presented as a witness to prove the victim's dying declaration or his statements which were part of the res gestae.2 In this appeal appellant's three assignment of error may be condensed into the issue of credibility or the sufficiency of the prosecution's evidence to prove his guilt beyond reasonable doubt. His story is that at around nine o'clock in the evening of July 31, 1966 he was in the municipal jail on guard duty. He heard a scream for help from Napola. He entered the cell and found Napola's shirt in flames. With the assistance of Ernesto Ogoc and Anecio Siton, Ural removed Napola's shirt. Ural did not summon a doctor because, according to Napola, the burns were not serious. Besides, he (Ural) was alone in the municipal building. Felicisima Escareal, Ogoc's common-law wife, whom the trial court branded "as a complete liar", testified that she heard Napola's scream for help. She saw that Napola's shirt was burning but she did not know how it happened to be burned. She said that Ural and Siton removed the shirt of Napola and put out the fire. Teofilo Matugas, a policeman, declared that he was relieved as guard by Ural at eight-thirty in the evening of July 31st. Matugas denied that Alberio was in the municipal building at eight o'clock. The trial court held that Ural's denials cannot prevail over the positive testimony of Alberio. It observed that Ural's alleged act of removing Napola's burning shirt was at most an indication that he was "belatedly alarmed by the consequence of his evil act" but would not mean that he was not the incendiary. Appellant Ural (he was thirty-four years old in March, 1969), in assailing the credibility of Alberio, pointed out that he was not listed as a prosecution witness and that he was convicted of murder. Those circumstances would not preclude Alberio from being a credible witness. It should be noted that the accused was a policeman. Ordinarily, a crime should be investigated by the police. In this case, there was no police investigation. The crime was investigated by a special counsel of the fiscal's office. That might explain why it was not immediately discovered that Alberio was an eyewitness of the atrocity perpetrated by Ural. The testimonies of Felicisima Escareal, Ogoc's common-law wife, and Policeman Matugas are compatible with the prosecution's theory that Ural burned Napola's shirt. Ultimately, the factual issue is: who should be given credence, Alberio or Ural? As already stated, the trial court which had the advantage of seeing their demeanor and behavior on the witness stand, chose to believe Alberio. This Court, after a searching scrutiny of the whole record, does not find any justification for disbelieving Alberio. This case is covered by article 4 of the Revised Penal code which provides that "criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended". The presumption is "that a person intends the ordinary consequences of his voluntary act" (Sec. 5[c], Rule 131, Rules of Court). The rationale of the rule in article 4 is found in the doctrine that "el que es causa de la causa es causa del mal causado" (he who is the cause of the cause is the cause of the evil caused)."Conforme a dicha doctrina no alteran la relacion de causalidad las condiciones preexistentes (como las condiciones patologicasdel lesionado, la predisposicion del ofendido, la constitucion fisica del herido, etc.); ni las condiciones sobrevenidas (como el tetanos, la pulmonia, o la gangrena sobrevenidos a consequencia de la herida)" (1 Cuello Calon, Codigo Penal, 12th Ed., 1968, p. 335-336). The similar rule in American jurisprudence is that "if the act of the accused was the cause of the cause of death, no more is required" (40 C.J.S. 854). So, where during a quarrel, the accused struck the victim with a lighted lamp, which broke and fell to the floor, causing the oil to ignite and set fire to the rug, and, in the course of the scuffle, which ensued on the floor, the victim's clothes caught fire, resulting in burns from which he died, there was a sufficient causal relation between the death and the acts of the accused to warrant a conviction of homicide (Williams vs. U.S., 20 Fed. 2nd 269, 40 C.J.S. 854, note 90). There is a rule that "an individual who unlawfully inflicts wounds upon another person, which result in the death of the latter, is guilty of the crime of homicide, and the fact that the injured person did not receive proper medical attendance does not affect the criminal responsibility" (U.S. vs. Escalona, 12 Phil. 54). In the Escalona case, the victim was

wounded on the wrist. It would not have caused death had it been properly treated. The victim died sixty days after the infliction of the wound. It was held that lack of medical care could not be attributed to the wounded man. The person who inflicted the wound was responsible for the result thereof. The crime committed by appellant Ural was murder by means of fire (incendio) (Par. 3, Art. 248, Revised Penal Code; People vs. Masin, 64 Phil. 757; U.S. vs. Burns, 41 Phil. 418, 432, 440).3 The trial court correctly held that the accused took advantage of his public position (Par. 1, Art. 14, Revised Penal Code). He could not have maltreated Napola if he was not a policeman on guard duty. Because of his position, he had access to the cell where Napola was confined. The prisoner was under his custody. "The policeman, who taking advantage of his public position maltreats a private citizen, merits no judicial leniency. The methods sanctioned by medieval practice are surely not appropriate for an enlightened democratic civilization. While the law protects the police officer in the proper discharge of his duties, it must at the same time just as effectively protect the individual from the abuse of the police." U.S. vs. Pabalan, 37 Phil. 352). But the trial court failed to appreciate the mitigating circumstance "that the offender had no intention to commit so grave a wrong as that committed" (Par. 3, Art. 13, Revised Penal Code). It is manifest from the proven facts that appellant Ural had no intent to kill Napola. His design was only to maltreat him may be because in his drunken condition he was making a nuisance of himself inside the detention cell. When Ural realized the fearful consequences of his felonious act, he allowed Napola to secure medical treatment at the municipal dispensary. Lack of intent to commit so grave a wrong offsets the generic aggravating, circumstance of abuse of his official position. The trial court properly imposed the penalty of reclusion perpetua which is the medium period of the penalty for murder (Arts. 64[4] and 248, Revised Penal Code). Finding no error in the trial court's judgment, the same is affirmed with costs against the appellant. So ordered. Zaldivar (Chairman) and Fernandez, JJ., concur. Antonio, J., took no part.

Separate Opinions BARREDO, J., concurring: Except for the unnecessary reference to the supposed statement of the deceased to his wife and the joint affidavit of Ogoc and De la Serna, all of which were not properly presented in evidence, hence it is preferable not to mention them in order to avoid any suspicion that our judgment has been influenced by factors other than evidence duly presented in court, I concur. Fernando, J., concurs. Separate Opinions BARREDO, J., concurring: Except for the unnecessary reference to the supposed statement of the deceased to his wife and the joint affidavit of Ogoc and De la Serna, all of which were not properly presented in evidence, hence it is preferable not to mention them in order to avoid any suspicion that our judgment has been influenced by factors other than evidence duly presented in court, I concur. Fernando, J., concurs.

EN BANC

G.R. No. L-29066 March 25, 1970 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARCELO AMIT, defendant-appellant. Office of the Solicitor General Felix V. Makasiar and Solicitor Dominador L. Quiros for plaintiff-appellee. Emilia Vidanes-Balaoing as counsel de officio for defendant-appellant.

PER CURIAM: Marcelo Amit was charged in the court below with the complex crime of rape with homicide described and penalized in Article 335 of the Revised Penal Code, as amended. Arraigned with the assistance of a counsel de officio, he pleaded guilty. Due to the gravity of the offense charged, however, the Court required additional evidence from the prosecution, which the latter presented in the form of (1) the extrajudicial confession of appellant in Ilocano (exhibit A) and its translation into English (Exhibit A-1) wherein he narrated in detail how the crime was committed; (2) the autopsy report (Exhibit B) describing the injuries suffered by the victim as she resisted appellant's criminal advances against her honor; and (3) the medical certificate (Exhibit C) describing the personal injuries suffered by the appellant himself during the struggle put up against him by the victim. On the basis of appellant's plea of guilty and the abovementioned evidence, the trial court rendered judgment sentencing him "to suffer the supreme penalty of death, with the accessories prescribed by law; to indemnify the heirs of the deceased Rufina Arellano in the amount of P6,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs." Pursuant to the provisions of Section 9, Rule 122 of the Revised Rules of Court, said judgment was elevated to us for review. While appellant does not question the correctness of the decision under review in so far as it finds him guilty of the crime charged, he claims, through his counsel de officio, that the penalty of death imposed upon him should be reduced to reclusion perpetua in view of the presence of three mitigating circumstances which the trial court should have considered in his favor, namely: (1) plea of guilty; (2) voluntary surrender, and (3) lack of intention to commit so grave a wrong as the one actually committed. The Solicitor General admits that the mitigating circumstances of plea of guilty and voluntary surrender have been proven, but denies that the mitigating circumstance of lack of intention to commit so grave a wrong as the one actually committed was similarly established. We agree with this latter contention. Appellant's contention — because of its nature, must necessarily be judged in the light of the acts committed by him and the circumstances under which they were committed. Should they show a great disproportion between the means employed to accomplish the criminal act — on the one hand — and its consequences — on the other — the mitigating circumstance under consideration must be considered in favor of the accused (U.S. vs. Reyes, 36 Phil. 904, 906907). Otherwise, it should not. In the case at bar, the following excerpts taken from appellant's extrajudicial confession (Exhibit A-1, translation) give us an idea of the acts committed by him in executing the crime: Q: And what did Rufina Arellano do to you when you made her lay down and you immediately place yourself on top of her?

A: She resisted a little, nevertheless I was able to do sexual intercourse with her, sir. Q: In her act of resisting you, what did Rufina Arellano do to you? A: She bit me and scratched me, sir. Q: What part of your body did Rufina Arellano bit and scratched? A: She bit me on a place a little below my shoulder and scratched me on my breast, sir. Q: When Rufina Arellano put up a little resistance when you placed yourself on top of her, what did you do also? A: I held her on the neck and pressed it downward, sir. xxx

xxx

xxx

Q: The left cheek of Rufina Arellano even swelled, do you know how she sustained it that caused it to swell? A: I boxed her when she resisted, sir. Q: What hand of yours boxed the left cheek of Rufina Arellano? A: My left hand, sir, for my right hand was holding her neck. Q: So what was the position of Rufina Arellano when your right hand was holding her neck as you boxed her on the cheek with your left hand? A: Rufina Arellano was lying down on her back and I was on top of her, sir. (pp. 23-24, rec.) At the time of the commission of the crime, appellant was 32 years of age, while his victim was 25 years his senior; his victim resisted his attempt to rape her by biting and scratching him; to subdue her, appellant boxed her and then "held her on the neck and pressed it down" while she was lying on her back and he was on top of her. These acts, We believe, were reasonably sufficient to produce the result that they actually produced — the death of appellant's victim. Consequently, what we said in People vs. Yu, G.R. L-13780, promulgated on January 28, 1961, would seem to apply: The lack of intention to commit so grave a wrong as that committed cannot be appreciated in favor of an accused who employed brute force — choking a 6-year old girl to death, who tried to shout while he was raping her — intention being gathered from and determined only by the conduct and external acts of the offender, and the results of the acts themselves. The penalty of Death prescribed in the last paragraph of Article 335 of the Revised Penal Code, as amended by Republic Acts Nos. 2632 and 4111 being an indivisible penalty, it has to be imposed regardless of the presence of mitigating circumstances, especially in a case like the present where, according to the evidence of record, the crime was committed with the aggravating circumstances of nighttime and abuse of superior strength (first paragraph, Article 63, Revised Penal Code). Moreover, the civil indemnity awarded by the trial court must be increased to P12,000.00. MODIFIED AS ABOVE INDICATED, the judgment appealed from is affirmed in all other respects. With costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur.

EN BANC G.R. No. L-36750 January 31, 1984 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MIGUEL REGATO and JOSE SALCEDA, defendants-appellants. Solicitor General for plaintiff-appellee. Jose S. Armonio for defendant-appellants.

RELOVA, J.: For automatic review is the death sentence imposed on accused-appellants Miguel Regato and Jose Salceda by the then Court of First Instance of Leyte, Branch IV, in Criminal Case No. 12, entitled "People vs. Regato, et al." for robbery with homicide. They were also ordered to indemnify, jointly and severally, the heirs of Victor Flores the sum of P12,000.00; the further sum of P870.00; and each to pay one-third of the costs. Prosecution evidence shows that about nine o'clock in the evening of November 22, 1969, three persons called at the house of Victor Flores at sitio Macaranas, Bo. Capierawa, Palo, Leyte asking if they could buy cigarettes. Felicisima Flores, wife of Victor, was then maintaining a small sari-sari store inside their house. Upon hearing them, she stood up and, after lighting a small kerosene lamp, opened the door of the house and extended the lamp out to recognize the persons outside. She saw accused Miguel Regato who was then at the porch and Jose Salceda. As she kept on exposing the light at them Regato approached Felicisima and struck her hand holding the lamp, causing it to fall. Regato then pointed a gun at Felicisima who moved backwards, towards the kitchen after which she jumped out and ran to the house of Filomeno Pilmaco, a neighbor. She told Pilmaco about the three persons who went up their house and pointed a gun at her. She asked for help and she was told to simply stay in the house while he and companions would rush to the poblacion of Palo to inform the police of the incident happening at sitio Macarinas. After Pilmaco and companions had left for the poblacion, Felicisima heard and gun explosion from the direction of their house. In the meantime, Godofredo Flores, the 12-year old son of Felicisima, who was sleeping in the sala was awakened by the voice of the robbers asking the occupants to come down. Godofredo observed that his mother was not in the house but saw his father, Victor Flores, being dragged down the stairway by Rito Ramirez and Miguel Regato. He saw also appellant Jose Salceda take hold of Florencio (brother of Godofredo) who was at the stairs, being brought inside the house. Appellant Salceda then lighted the lamp which was then on the floor of the sala of the house and then he brought Florencio inside the bedroom where Godofredo was then hiding. Rito Ramirez and appellant Regato in turn, brought Victor Flores inside the sala. Thereafter, Regato hit Victor Flores with the butt of his gun and said: "Where is your money? Where is your money? When Victor answered that they did not have any, Rito Ramirez boxed Victor at the mouth breaking one of his teeth. The three — Ramirez, Regato and Salceda, did not notice Godofredo in his hiding place by the door of the bedroom, and the latter saw everything that transpired inside the house because of the lighted lamp on the floor about a meter away. While Victor Flores was being maltreated by Rito Ramirez and appellant Regato to force him to reveal where their money was, appellant Salceda was busy ransacking a trunk inside the bedroom where he found a small box containing P870.00. Salceda took the money, put out the light and went to the kitchen. Ramirez then asked Salceda whether he was able to find the money and upon being told that he did, Ramirez rebuked Victor Flores: "You old man you are telling a he. You said you have no money. " Victor Flores retorted: "You robbers With this remark, Rito Ramirez shot Victor Flores following which the three — Regato, Salceda and Ramirez rushed out of the house and fled. After some minutes, Felicisima Flores went back to the house and found her husband, Victor, bleeding. Things inside the bedroom were scattered and their trunk opened. She found the money inside the trunk gone. With the help of a

nephew, they brought Victor Flores to the poblacion of Palo. On the way, they were met by the police patrol which proceeded to the scene of the robbery. The party of Victor Flores reached the municipal building of Palo, Leyte about midnight of November 22 and few minutes thereafter, he gave a written statement which is now marked as Exhibit "C". The following morning, Victor Flores was admitted at the Leyte Provincial Hospital but due to severe hemorrhage, secondary to gunshot wound, he died the same day. Felicisima Flores was formally investigated by the police to whom she gave her affidavit now marked as Exhibit "F". Jose Salceda, on November 26, 1969, was brought to the police department as a suspect in the case. He was Identified by Felicisima Flores. Regato was likewise apprehended and a case against the three — Miguel Regato, Jose Salceda and Rito Ramirez was filed for Robbery with Homicide. The case was tried against Regato and Salceda only because Rito Ramirez has remained at large. The defense is denial and alibi Appellant Miguel Regato claimed that on the night of November 22, 1969 he was in Bo. Gacao Palo, Leyte attending to novena prayers for his late father-in- law, Andres Dotado Among those present were Teodora Espina, Alberto Maraño Rosario Regato and Nemesis Fuentes who corroborated his testimony. Prayers started at 7:00 and ended about 8 o'clock. Supper was then served until about 9:00 after which they indulged in tuba 9 which lasted up to past 11 o'clock. After the visitors had left, he (Regato) and family went to sleep. Appellant Jose Salceda, on the other hand, testified that in the morning of November 22, 1969 he was in Bo. Gacao, Palo to transport palay that was to be harvested from the ricefield of Solomon Castañares. Harvest was finished at 4 o'clock in the afternoon and they actually left the ricefield an hour later for the house of Castañares where he was asked to cook supper. After eating supper, the group — five of them, indulged in a tuba drinking spree until about 2 o'clock the following morning. Both appellants denied participation in the acts charged in the information. In this appeal, appellants contend that the trial court erred (1) when it denied Salceda's motion for new trial and did not acquit him of the crime charged; (2) in convicting Regato of robbery with homicide and not with simple robbery; (3) in not considering in their favor the mitigating instance of lack of intent to commit so grave a wrong as that committed, (4) in consider the aggravating circumstance of nocturnity against them; and (5) in failing to consider that the aggravating circumstance of craft is absorbed by the aggravating circumstance of nocturnity. Basis of the motion for new trial is the affidavit of appellant Miguel Regato that his two companions in the commission of the crime were Loreto Ramirez and Ernesto Mutsamuel (not Jose Salceda). On this point, suffice it to say that this affidavit of a convicted co-accused is a forgotten evidence and not a newly discovered one. Appellants Regato and Salceda were duly represented by counsel from arraignment until the promulgation of judgment and all the while this proffered evidence (affidavit of Regato) was already in existence and available to the defense. After their conviction by the trial court, Regato would now want to free Salceda. At any rate, the statement of Regato in the affidavit is highly unbelievable and bears no earmark of sincerity. It is belied by the positive declarations of eyewitnesses to the crime. We find no merit in the second assigned error. Appellants, with Ramirez, arrived together at the of Victor Flores and pretended to buy cigarettes. When Felicisima Flores opened the door, they went inside the house and demanded of Victor Flores to bring out their money. When he refused, and Regato maltreated him, while went inside the bedroom and ransacked the trunk where the money was kept. Ramirez then inquired whether he found the money and he answered in the affirmative. It is true that the shooting of Victor Flores took place after the money had been taken and it was only when Flores called them "robbers" that Ramirez shot him. As aptly stated by the lower court, "it is clear that the killing was done by reason or on the occasion of the robbery, so that the accused are guilty of the complex crime of robbery with homicide." (p. 18, Decision of lower court). Likewise, We find no merit in the contention that there was lack of intent to commit so grave a wrong as that committed. Intention is a mental process and is an internal state of mind. The intention must be judged by the action, conduct and external acts of the accused. What men do is the best index of their intention. In the case at bar, the aforesaid

mitigating instance cannot be appreciated consider that the acts employed by the accused were reasonably sufficient to produce the result that they actually made — the death of the victim. With to the fourth and fifth errors: nighttime and craft, the evidence is clear that the crime was committed past 9:00 in the evening which "the culprits had sought the hiding mantle of the night in order to facilitate its commission." (Decision, lower court, p. 19). Craft involves intellectual trickery or cunning on the part of the accused. Herein appellants, in order to enter the house of Flores, shouted from the outside that they wanted to buy cigarettes which induced the inmates to open the door for them. As hold in People vs. Napili, 85 Phil. 521, gaining entrance by pretending to buy cigarettes or drink water constitutes craft. By and large, the conspiracy among appellants and Ramirez in the Commission of the crime is evident upon the facts as proven. Their acts, collectively and individually executed, have demonstrated the existence of a common design towards the accomplishment of unlawful purpose and objective. The shooting and death of Victor Flores bear as direct relation and intimate connection between the robbery and killing which occured during and on the occasion of the robbery. Whether the latter be prior or subsequent to the former, there is no doubt that the complex crime of robbery with homicide has been committed. On the other hand, appellants' alibi must fall. In the first place, Regato's submittal that he should have been convicted of simple robbery with homicide, is an admission of his presence at the scene of the crime contrary to his testimony that he was in his house that evening of November 22, 1969 attending to novena prayers for his late father-in-law. Secondly, to established an alibi, it is not enough to prove that appellants were at some other place when the crime was committed but must, likewise, demonstrate that it was physically impossible for them to have been at the place of commission at such time. The distance between the place of the commission of the offense to the place where appellants were supposed to be at the time is only 1½ kilometers, and these places are connected with passable roads that could have facilitated the easy negotiation by the appellants between their respective homes and the scene of the crime. Appellants evidence on this point is not sufficient to overcome the positive identification made by the prosecution witnesses — Felicisima Flores and Godofredo Flores. For lack of necessary votes, the death penalty cannot be imposed. WHEREFORE, the judgment appealed from is AFFIRMED, except as to the penalty, which is hereby modified to reclusion perpetua. SO ORDERED. Fernando, C.J., Teehankee, Makasiar, Aquino, Concepcion, Jr., Guerrero, Abad Santos, De Castro, MelencioHerrera, Plana, Escolin and Gutierrez, Jr., JJ., concur.

FIRST DIVISION G.R. No. 168051

September 27, 2006

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HONORATO C. BELTRAN, JR., accused-appellant. CHICO-NAZARIO, J.: Murder is one of the instances when man descends to a level lower than that of the beast, for it is non-instinctive killing, a deliberate destruction of a member of the same species for reasons other than survival.1 This is an appeal from the Decision of the Court of Appeals in CA-G.R. CR No. 00755, dated 31 March 2005,2affirming with modifications the Decision of the Regional Trial Court (RTC) of Pallocan, Batangas City, Branch 4, in Criminal Case No. 10525, dated 9 October 2001,3 convicting the accused-appellant Honorato C. Beltran, Jr., alias Jun-Jun and Junior, of the crime of murder, sentencing him to suffer the penalty of reclusion perpetua, and ordering him to pay the heirs of deceased Norman H. Concepcion, the amount of P75,000.00 as moral damages, P50,000.00 as civil indemnity, and P18,252.00 as actual damages. On 3 November 1999, appellant was indicted in an Information4 for Murder allegedly committed as follows: That on or about October 25, 1999 at around 10:00 o'clock in the evening at Velasquez Road, Brgy. Sta. Rita, Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, while armed with a bolo, a deadly weapon, with intent to kill and with the qualifying circumstance of treachery, did then and there, willfully, unlawfully and feloniously attack, assault and hack with the said bolo, suddenly and without warning one Norman Concepcion y Habla while the latter was unarmed and completely defenseless, thereby hitting him on the different parts of his body, which directly caused the victim's death. When arraigned on 9 November 1999, appellant pleaded "Not Guilty" to the charge therein.5 Thereafter, trial on the merits ensued. The prosecution established its case through the testimonies of its witnesses, namely: Ever D. Sales, Rolando G. Dalisay, Dr. Dinah R. Lucero, SPO1 Julian M. de Castro and Normita H. Concepcion. Their testimonies are summarized as follows: Ever D. Sales (Ever) was a resident of Velasquez Subdivision, Barangay Sta. Rita, Batangas City. He worked as a gasoline boy in Caltex Gasoline Station at San Pascual, Batangas City. Ever testified that on 25 October 1999, at about 10:00 in the evening, he left his workplace and proceeded home using his bicycle. While traversing the Velasquez Road, he saw appellant holding a bolo and standing in front of his house situated at the side of Velasquez Road. On the opposite side of the same road, he saw Norman H. Concepcion (Norman) standing in front of an automobile repair shop. Exhausted by the travel, Ever decided to stop by and rest momentarily at a nipa hut near the same road. Minutes later, he saw appellant, from a distance of six meters, stalking Norman who was then walking near the automobile shop. Appellant approached Norman, and, without a warning, hacked him with a bolo. Norman tried to avoid the blow by moving backwards and shielding his face with his left arm. However, Norman's left hand was hit and wounded by the bolo. When Norman turned around and ran, appellant hacked him at the back causing him to fall down on a grassy area. Appellant repeatedly hacked Norman with a bolo. Fearing for his own safety, Ever immediately left the nipa hut and sought help in a nearby sari-sari store. Later, he went to the crime scene and found no trace of appellant. He also discovered the bloodied and lifeless body of Norman sprawled on the ground. Afterwards, he proceeded home and narrated to a relative named Renato Sales (Renato) what he just witnessed. Later, Renato informed a certain Carmina Baliwag of the incident, who in turn, relayed the same to Normita Concepcion (Normita), the sister of Norman. Ever also declared that he did not know of any reason why appellant hacked Norman to death.6

Rolando G. Dalisay (Rolando) is a resident of Velasquez Subdivision, Barangay Sta. Rita, Batangas City, where he is engaged in a carpentry business. Rolando supported the testimony of Ever by stating that on 25 October 1999, at around 10:00 in the evening, he was walking along Velasquez Road to buy some medicines when, at a distance of about 15 meters, he saw appellant hacking Norman with a bolo. He noticed that when Norman fell on the ground, appellant continued his onslaught by relentlessly hacking the former. Afraid that he might be seen by the appellant, he immediately went home and informed his wife about the incident. When the barangay tanod and policemen arrived at the crime scene, he proceeded thereto and told them what he had witnessed. Further, he stated that he personally knows appellant as the latter was a former employee in his carpentry business. He also personally knew Norman since the latter was a relative of his wife. Lastly, he testified that appellant and Norman had a previous quarrel which, however, was subsequently settled in their barangay office.7 SP01 Julian D. Mendoza was the investigating officer of the instant case. On 26 October 1999, at about 12:00 midnight, his station received an information regarding the hacking incident. He and a certain SPO3 Mario Panaligan rushed to the crime scene. Upon arriving thereat, he inquired from the people present the identity of the dead person and of the killer. Rolando approached him and narrated that the dead person was Norman and the killer was appellant. Normita also arrived at the crime scene and told him relevant information. With this lead, they proceeded to appellant's house but the latter was not there. On 27 October 1999, a certain Tomas Dimacuha surrendered the appellant. Later, the brother of appellant, Sherman Beltran, brought before him the bolo, about three palms in length, used by appellant in hacking Norman to death.8 Dr. Dinah R. Lucero, Medical Officer IV of the Batangas City Health Office, testified that she conducted the post mortem examination on the cadaver of Norman on 26 October 1999 at the Eternal Memorial Chapel. She declared that, aside from the fact that Norman's body was almost decapitated, the latter suffered seven stab wounds and his cause of death was "massive blood loss secondary to multiple hacking wound."9 The death certificate issued by Lucero shows that Norman was twenty-two (22) years of age at the time of his demise.10 Lastly, Normita, sister of Norman, testified that on the evening of 25 October 1999, Carmina Baliwag called her on the telephone and instructed her to proceed to Velasquez Road. Upon arriving thereat, she was shocked to discover the dead body of Norman lying on the ground. She claimed that appellant had a motive to kill Norman since an altercation occurred between the two on 22 October 1999, which, however, was settled later on 25 October 1999. In establishing her claim for damages, she stated that she spent an amount of P61,000.00 in connection with Norman's death, and that the latter worked as an assistant to the electrician at First Gas Company with a monthly income of P6,000.00. She also claimed that she was "shocked" at the sudden and gruesome death of Norman, and that she felt "pity" for him.11 On the other hand, the defense argued its case by presenting the testimony of the appellant himself and a certain Dr. Luisito Briones. Appellant admitted that he hacked Norman with a bolo but insisted that he did the same in self-defense. He narrated that on 25 October 1999, at about 10:00 in the evening, he and his mother were resting inside their house when suddenly, he heard Norman shouting and insulting him outside their house and challenging him to a fight. When he came out of the house, he noticed that Norman was accompanied by several unidentified persons. Thereafter, he tried to pacify Norman but the latter slapped the back of his head and pulled out an ice pick from his pocket. He retreated and looked for something to defend himself. He found a bolo near a tamarind tree in front of their house and took the same. When Norman was about to enter appellant's house, the latter hacked him with the bolo. Norman tried to avoid the blow but the same hit his left arm. Appellant lost grip of the bolo and the same fell on the ground. While appellant was reaching for the bolo, Norman grabbed his head and tried to stab him with the ice-pick. Appellant, however, eluded the counter-attack but he sustained a minor wound on the forehead. Upon gaining control of the scuffle, appellant took the bolo and hacked Norman four consecutive times, most of them landed on the head. When appellant noticed that Norman was no longer moving, he fled therein and went to his brother, Sherman Beltran, in Bauan, Batangas, where he stayed that same night and hid therein the bolo. The next day, he went to his sister's house in Lipa City. Later that day, he went to the Granja Hospital, also in Lipa City, for treatment of his wound on the forehead.

Appellant also claimed that on 22 October 1999, he was mauled by Norman near a sari-sari store; that Norman is taller than him since he is only 5'4 in height; that he was forced to kill Norman because the latter insulted him and his mother; and that he was on his way to Bauan City to surrender to police when he was apprehended by the barangay officers in Lipa City.12 Appellant was twenty-nine years (29) of age at the time of his arrest.13 Dr. Luisito D. Briones testified that he treated appellant on the morning of 26 October 1999 at Granja Hospital in Lipa City for a lacerated wound on the forehead. He also claimed that the wound was possibly caused by a knife and that it was already on the healing stage. He also issued a medical certificate attesting to the same.14 On 9 October 2001, the RTC rendered its Decision15 finding appellant guilty beyond reasonable doubt of the crime of murder. It reasoned that appellant's claim of self-defense cannot be sustained in view of the positive and credible testimonies of the prosecution witnesses. In closing, the trial court ruled: In the light of all the foregoing consideration and upon the evidence, accused Honorato Beltran, Jr. y Casia alias "Jun-Jun" is hereby found GUILTY beyond reasonable doubt of the crime of Murder charged in the information. Consequently, the accused is hereby sentenced to Reclusion perpetua together with all the accessory penalties inherent therewith and to pay the costs. He is further directed to indemnify the heirs of Norman Concepcion in the sum of P61,000.00 as actual damages and the sum of P75,000.00 as moral damages.16 Aggrieved, appellant filed a notice of appeal therein on 22 October 2001.17 Subsequently, on 3 January 2003, appellant filed his Appellant's Brief with this Court assailing the Decision of the RTC dated 9 October 2001.18Pursuant to our ruling in the case of People v. Mateo,19 we issued a Resolution dated 8 November 2004, transferring the instant case to the Court of Appeals for disposition.20 On 31 March 2005, the Court of Appeals promulgated its Decision affirming with modifications the assailed RTC Decision. Aside from reducing the amount of actual damages awarded by the RTC, it also ordered appellant to pay the heirs of Norman an amount of P50,000.00 as civil indemnity. The dispositive portion thereof reads: WHEREFORE, the appealed Decision is AFFIRMED with MODIFICATION. Aside from moral damages in the amount of P75,000.00, appellant is ordered to pay the heirs of the deceased, Norman Concepcion, the following amounts: (a) Fifty Thousand (P50,000.00) as civil indemnity; and (b) Eighteen Thousand Five Hundred Twenty-Five (P18,525.00) as actual damages.21 Dismayed, appellant appealed the afore-quoted Decision before this Court by adopting and invoking the same arguments stated in his Appellant's Brief dated 3 January 2003, to wit: I. THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONY OF EVER SALES DESPITE OF ITS BEING UNBELIEVABLE AND BIASED, INSTEAD OF THE SELF-DEFENSE INTERPOSED BY THE APPELLANT. II. THE TRIAL COURT GRAVELY ERRED IN CONSIDERING THE QUALIFYING CIRCUMSTANCE OF TREACHERY DESPITE THE PROSECUTION'S FAILURE TO ESTABLISH THE SAME BEYOND REASONABLE DOUBT. III. ASSUMING THAT ACCUSED-APPELLANT IS NOT ENTITLED TO THE JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE, THE TRIAL COURT ERRED IN NOT CONSIDERING IN HIS FAVOR THE MITIGATING CIRCUMSTANCES OF SUFFICIENT PROVOCATION ON THE PART OF THE OFFENDED PARTY WHICH IMMEDIATELY PRECEDED THE ACT AND VOLUNTARY SURRENDER. IV.

THE TRIAL COURT GRAVELY ERRED IN AWARDING EXCESSIVE ACTUAL DAMAGES. 22 Anent the first issue, appellant argued that the testimony of prosecution witness, Ever, is biased, unbelievable and confusing; that the trial court should not have considered them; that his acquittal is proper on the ground of selfdefense; and that the elements of self-defense are present in the instant case. The contention is without merit. Prosecution eyewitness, Ever, testified that on 25 October 1999, at about 10:00 in the evening, he left his workplace and proceeded home using his bicycle. While traversing Velasquez Road, he saw appellant holding a bolo and standing in front of his house situated at the side of Velasquez Road. On the opposite side of the same road, he saw Norman standing in front of an automobile repair shop. Exhausted by the travel, he decided to stop by and rest momentarily at a nipa hut near the same road. Minutes later, he saw appellant, from a distance of six meters, stalking Norman who was walking then near the automobile repair shop. Appellant approached Norman, and without a warning, repeatedly hacked him with a bolo. Although it occurred late in the evening, the light coming from the moon and the electric post therein provided him with good visibility to identify appellant and Norman, and to witness how the heinous act was executed.23 This testimony was corroborated by another prosecution eyewitness, Rolando. Thus, the positive identification and categorical declarations of Ever on the witness stand under solemn oath deserves full faith and credence. Appellant, however, posited that there were inconsistencies between the testimony of Ever in open court and his sworn statements before the investigators. According to appellant, Ever testified during his direct examination that he was at a distance of about six meters, more or less, from appellant and Norman when the hacking occurred; that the place where the killing occurred was "lighted" by the moon; and that during his cross-examination, he stated that there was no other person within the area when he witnessed the hacking. On the other hand, appellant claimed that Ever declared in his sworn statements before the investigators that he was more or less 20 meters from the place where the hacking took place; that there was light coming from the electric post and the moon; and that during his crossexamination, he also stated that the mother of appellant was outside the house when the hacking took place.24 This Court had consistently ruled that the alleged inconsistencies between the testimony of a witness in open court and his sworn statement before the investigators are not fatal defects to justify a reversal of judgment of conviction. Such discrepancies do not necessarily discredit the witness since ex-parte affidavits are almost always incomplete. It bears emphasis that a sworn statement or an affidavit does not purport to contain a complete compendium of the details of the event narrated by the affiant. Sworn statements taken ex-parte are generally considered to be inferior to the testimony given in open court.25 Moreover, as aptly stated by the Office of the Solicitor General (OSG), when Ever testified in court that "there was light coming from the moon, sir" he was not denying what he stated in his sworn statement that "there was a light from the lamp (electric) post and the moon."26 The appellant also testified that the place where the hacking incident occurred was lighted by an electric post. As the foregoing circumstances clearly established that the place where the hacking occurred was lighted by the moon and an electric post, the testimony of Ever as to the identity of the killer and the victim, and how the killing was executed, must stand. Further, the alleged inconsistencies with respect to the presence of appellant's mother in the place where the hacking took place, and the distance between the nipa hut where Ever rested and the area where the hacking took place, are minor inconsistencies and trivial matters that serve to strengthen rather than weaken the credibility of Ever for they erase the suspicion of rehearsed testimony. Also, they are not material in the instant case since none of them is an essential element of murder.27 More importantly, the RTC had observed that Ever was candid, straightforward and credible in giving his testimony on the witness stand. It found Ever to be unbiased since he was neither a friend nor an enemy of appellant and Norman but just a mere neighbor. It also found that there was no ulterior motive for him to testify against appellant.28 It is a well-settled doctrine in our jurisprudence that when the credibility of a witness is in issue, the findings of fact of the trial court, its calibration of the testimonies of the witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded high respect if not conclusive effect. 29 This is because the trial court has the unique opportunity to observe the demeanor of a witness and is in the best position to discern whether they are telling the truth.30 It is worth stressing at this point that the Court of Appeals affirmed such

findings of the RTC. In this regard, it is settled that when the trial court's findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court.31 We find no compelling reason to deviate from such findings of the RTC and the Court of Appeals. On another point, appellant contended that he merely acted in self-defense when he hacked Norman to death. We disagree. Article 11, paragraph (1), of the Revised Penal Code provides for the elements and/or requisites in order that a plea of self-defense may be validly considered in absolving a person from criminal liability, viz: ART. 11. Justifying circumstances. – The following do not incur any criminal liability: Anyone who acts in defense of his person or rights, provided that the following circumstances concur; First. Unlawful aggression; Second. Reasonable necessity of the means employed to prevent or repel it; Third. Lack of sufficient provocation on the part of the person defending himself. As an element of self-defense, unlawful aggression refers to an assault or attack, or a threat thereof in an imminent and immediate manner, which places the defendant's life in actual peril.32 It is an act positively strong showing the intent of the aggressor and not merely a threatening or intimidating attitude.33 It is also described as a sudden and unprovoked attack of immediate and imminent kind to the life, safety or rights of the person attacked.34 There is an unlawful aggression on the part of the victim when he puts in actual or imminent peril the life, limb, or right of the person invoking self-defense. There must be actual physical force or actual use of weapon.35 In order to constitute unlawful aggression, the person attacked must be confronted by a real threat on his life and limb; and the peril sought to be avoided is imminent and actual, not merely imaginary.36 In the instant case, there was no unlawful aggression on the part of Norman that justified the act of appellant in hacking him to death. There was no actual or imminent danger on the life of appellant when he came face to face with Norman. As narrated by Ever, Norman was just walking on the road and was not provoking appellant into a fight. It was the appellant who approached and suddenly hacked Norman repeatedly even when the latter was already fallen on the ground. In short, appellant was the unlawful aggressor. Even if this Court were to adopt the version of facts of appellant, the result or conclusion would be the same. Appellant alleged that he was resting inside his house when he heard Norman shouting invectives against him and challenging him to a fight. When he went outside the house to pacify Norman, the latter slapped the back of his head and brought out an ice-pick. Appellant retreated and when Norman tried to follow him inside the house, he took a bolo and repeatedly hacked Norman. The foregoing circumstances does not justify the act of appellant in hacking Norman. Obviously, mere shouting of invectives and challenging one to a fight does not put one's life in actual or imminent danger. In the same vein, mere slapping of one's head does not place a person's life in serious danger such that it compels him to use a bolo and hack the offender. As regards the brandishing of an ice-pick, appellant had several less harmful means of avoiding the same as he was not cornered or trapped. He could have run inside his house and locked the door, or, called the neighbors or authorities for help. Unfortunately, appellant did not avail himself of any of those options and instead chose to hack Norman. Quite conspicuously, no convincing evidence was presented to show that Norman was, indeed, armed with an icepick at the time of the incident. In fact, no ice-pick was found in the crime scene nor in the body of Norman. There was also no proof adduced showing that Norman attempted to stab appellant or tried to barge into the latter's house.37 The fact that appellant sustained an injury on his head, allegedly caused by Norman's ice-pick, does not signify that he was a victim of unlawful aggression or that he acted in self-defense.38 The physician who treated appellant testified that the latter was diagnosed on 26 October 1999, the day after the hacking incident; that appellant was discharged

on the same day he was treated in the hospital since he was only an out-patient; and that at the time he examined the head injury of appellant, it was already on its healing stage.39 It is clear from the foregoing that appellant's head injury was not serious or severe. The cause of the same is likewise doubtful. Thus, the superficiality of the injury sustained by appellant is no indication that his life and limb were in actual peril.40 In stark contrast, Norman was almost decapitated and sustained fatal injuries on the head and neck. All in all, Norman sustained seven fatal wounds, most of them located at the head and neck. Based on the foregoing, it is difficult to believe that Norman was the unlawful aggressor. The gravity, location, and number of wounds sustained by Norman are eloquent physical evidence showing a determined effort on the part of appellant to kill Norman, and not just to defend himself.41 Time and again, we held that unlawful aggression is a sine qua non for upholding the justifying circumstance of selfdefense.42 It is an essential and indispensable requisite, for without unlawful aggression on the part of the victim, there can be, in a jural sense, no complete or incomplete self-defense.43 Without unlawful aggression, self-defense will not have a leg to stand on and this justifying circumstance cannot and will not be appreciated even if the other elements are present.44 To our mind, unlawful aggression is clearly absent in the case at bar. The second element of self-defense requires that the means employed by the person defending himself must be reasonably necessary to prevent or repel the unlawful aggression of the victim. The reasonableness of the means employed may take into account the weapons, the physical condition of the parties and other circumstances showing that there is a rational equivalence between the means of attack and the defense.45 The act of appellant in repeatedly hacking Norman on his head and neck was not a reasonable and necessary means of repelling the aggression allegedly initiated by the latter. As stated earlier, no convincing evidence was presented to show that Norman was armed with an ice-pick at the time of the incident. In fact, no ice-pick was found in the crime scene or in the body of the victim. There was also no proof showing that Norman attempted to stab appellant or tried to barge into the latter's house. Granting arguendo that Norman was armed with an ice-pick, the repeated hackings were not necessary since he can overpower or disable Norman by a single blow on non-vital portion/s of his body. Again, as correctly observed by the OSG, had the appellant merely wanted to protect himself from what he perceived as an unlawful aggression of Norman, he could have just disabled Norman.46 When Norman fell on the ground, appellant should have ceased hacking the former since the alleged aggression or danger no longer exists. By appellant's own testimony, however, he hacked Norman with his bolo even when the latter was already lying on the ground. It appears, therefore, that the means used by appellant, which were simultaneous and repeated hackings, were adopted by him not only to repel the aggression of Norman but to ensure the latter's death. In sum, such act failed to pass the test of reasonableness of the means employed in preventing or repelling an unlawful aggression. Like an alibi, self-defense is inherently weak for it is easy to fabricate.47 Thus, this Court had consistently ruled that where an accused admits killing the victim but invokes self-defense, it is incumbent upon the accused to prove by clear and convincing evidence that he acted in self-defense.48 As the burden of evidence is shifted on the accused to prove all the elements of self-defense, he must rely on the strength of his own evidence and not on the weakness of the prosecution.49 In the instant case, appellant failed to discharge such burden with clear and convincing evidence. Therefore, his plea of lawful self-defense must fall. With regard to the second issue, appellant contended that there was no treachery that qualified his act to murder in the absence of direct evidence showing that his attack on Norman was sudden; that Norman was not deprived of an opportunity to defend himself; and that appellant did not employ treachery to insure the execution of the crime. Appellant's contention is bereft of merit. Treachery is a sudden and unexpected attack under circumstances that render the victim unable and unprepared to defend himself by reason of the suddenness and severity of the attack.50 It is as an aggravating circumstance that qualifies the killing of a person to murder. Article 14, paragraph (16) of the Revised Penal Code states the concept and essential elements of treachery as an aggravating circumstance, thus: ART. 14. Aggravating circumstances. - The following are aggravating circumstances:

xxxx 16. That the act be committed with treachery (alevosia). There is treachery when the offender commits any of the crimes against the person employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. As can be gleaned from the foregoing, two essential elements/conditions are required in order that treachery may be appreciated: (1) The employment of means, methods or manner of execution that would insure the offender's safety from any retaliatory act on the part of the offended party, who has, thus no opportunity for self-defense or retaliation; and (2) deliberate or conscious choice of such means, methods or manner of execution. Further, it must always be alleged in the information and proved in trial in order that it may be validly considered.51 In the case at bar, treachery was alleged in the Information against appellant. Moreover, all the essential elements/conditions of treachery were established and proven during the trial. Appellant, while holding a bolo, had waited for the dark to set in before making his move so that nobody, especially Norman, would notice his impending attack. When he saw Norman, alone and unarmed, casually walking near an auto repair shop, he followed him surreptitiously. Later, appellant came out and approached the unsuspecting Norman, who, in turn, faced the former. Appellant took advantage of the stunned and hapless Norman by swiftly hacking him with a bolo. As the assault was sudden and unexpected, Norman was forced to move backwards and raise his left arm to shield his face but it was too late. Norman's left arm was immediately hit by the bolo. When Norman turned his back on appellant and tried desperately to run, appellant hacked him again at the back causing him to fall on the ground. As the bloodied and moaning Norman was lying on the ground, appellant unleashed his full wrath by repeatedly hacking him on the neck and head. Upon noticing that Norman was no longer moving and was, in fact, almost decapitated, he stopped the hacking and fled the scene. As viewed from the foregoing, the suddenness and unexpectedness of the appellant's attack rendered Norman defenseless, vulnerable and without means of escape. Appellant's use of nighttime and a deadly bolo, as well as the sudden attack and repeated hackings on the vital portions of Norman's body, were especially adopted by him to immediately cripple Norman and prevent him from retaliating or escaping. Appellant deliberately adopted them in order to overpower the much younger, taller, and larger Norman. Considering that Norman was alone and unarmed, there was absolutely no way for him to defend himself or escape. Further, the fact that Norman sustained several fatal wounds while appellant allegedly sustained a single superficial wound on his forehead shows that Norman was not able to retaliate or defend himself. Given the foregoing, there is no doubt in our minds that appellant intended and was determined to kill Norman. Appellant, however, asseverated that there was no treachery since the attack was frontal or face to face, such that Norman had been forewarned of the attack and, thus, placed him in a position where he can defend himself. Appellant also claimed that there was a quarrel between him and Norman prior to the hacking incident which, in effect, negate treachery since it disproved the fact that the attack was sudden and unexpected. We are not persuaded. There is no dispute that Norman was facing appellant at the time of the first blow. Subsequently, however, Norman turned his back and tried to run but he was hacked at the back, and when he fell on the ground, he was hacked again repeatedly. It is settled that treachery is to be appreciated when the victim was initially attacked frontally, but was attacked again after being rendered helpless and had no means to defend himself or to retaliate.52 As long as the attack was sudden and unexpected, and the unarmed victim was not in a position to repel the attack, there is treachery.53 The quarrel between Norman and appellant prior to the hacking incident does not negate treachery. It is true that there is no treachery if the killing was preceded by an altercation or dispute. The same, however, does not apply in the instant case. The misunderstanding between the two occurred on 22 October 1999. This was settled before their barangay officials on the morning of 25 October 1999. Cooler heads then had already set in. In fact, the two shook hands before the same barangay officials. Thus, there was no reason for Norman to suspect that appellant still held a grudge against him and to prepare or anticipate appellant's retaliation. It must also be noted that no conversation or struggle occurred between them shortly before the hacking incident.

Appellant argued that if his plea of self-defense cannot be considered, he is still entitled to the mitigating circumstances of sufficient provocation on the part of the offended party and voluntary surrender under Article 13 paragraphs (4) and (7) of the Revised Penal Code, respectively. We reject these contentions. Article 13 paragraph (4) of the Revised Penal Code provides that a person's criminal liability may be mitigated if there was a sufficient provocation or threat on the part of the offended party which immediately preceded the crime. Before the same can be appreciated, the following elements must concur: (1) That the provocation or threat must be sufficient or proportionate to the crime committed and adequate to arouse one to its commission; (2) That the provocation or threat must originate from the offended party; and (3) That the provocation must be immediate to the commission of the crime by the person provoked. Norman did not in any way provoke appellant into a fight on that fateful night. There was no argument or physical struggle that ensued between them shortly before appellant hacked Norman with a bolo. Norman was innocently walking along the road when, all of a sudden, appellant surfaced and hacked him in rapid succession. The alleged altercation between the two occurred much earlier (22 October 1999) as to reasonably and sufficiently incite the appellant to act the way he did. In the absence of sufficient provocation on the part of the offended party, appellant's assertion of mitigating circumstance cannot be sustained. Moreover, and more importantly, this ordinary mitigating circumstance cannot offset the qualifying aggravating circumstance of treachery which is present in the instant case. Likewise, appellant is not entitled to the mitigating circumstance of voluntary surrender. Article 13, paragraph (7) of the Revised Penal Code states that the offender's criminal liability may be mitigated if he voluntarily surrendered to a person in authority or his agents. Accordingly, the essential elements of voluntary surrender are: (1) that the offender had not been actually arrested or apprehended; (2) that the surrender was voluntary and spontaneous; and (3) that the offender surrendered himself to a person in authority or his agent. Appellant was already apprehended for the hacking incident by the barangay officials of Lipa City just before he was turned over to the police by a certain Tomas Dimacuha.54 Assuming that appellant had indeed surrendered to the authorities, the same was not made spontaneously.55 Immediately after the hacking incident, appellant, instead of proceeding to the barangay or police, went to his brother, Sherman Beltran, in Bauan, Batangas, and the next day, to his sister in Lipa City. It took him three long days to surrender to the police authorities.56 Moreover, the flight of appellant and his act of hiding until he was apprehended by the barangay officials are circumstances highly inconsistent with the spontaneity that characterizes the mitigating circumstance of voluntary surrender.57 As to the last issue, appellant insisted that the trial court has awarded excessive damages in favor of Norman's heirs. He argued that there was no proof or justification for the same. When death occurs due to a crime, the following damages may be awarded: (1) a civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages.58 Thus, we agree with the Court of Appeals that the award of P50,000.00 for civil indemnity ex delicto to Norman's heirs is proper without need of proof other than appellant's commission of murder that resulted in Norman's death.59 Likewise, we agree with the Court of Appeals that moral damages should be awarded since Normita testified during the trial that she suffered moral shock and wounded feelings because of the brutal and sudden death of Norman. However, we deem it necessary to reduce the amount of the same from P75,0000.00 to P50,000.00. Normita claimed that she spent a total amount of P61,080 for the burial and funeral expenses of Norman. However, the receipts on record shows that only an amount of P18,420.82 was spent therein.60 Normita's claim of expenses for the food, drinks, flowers, chairs and tables during the funeral and burial of Norman, as well as the traditional 40 days prayer thereafter, were not supported by any receipts. These expenses are merely written, listed, and signed by Normita in one sheet of yellow paper, and submitted as evidence in the trial court. Thus, as general rule, Normita is entitled only to an amount of P18,420.82 since actual damages may be awarded only if there are receipts to support the same. However, in the case of People v. Dela Cruz,61 this Court declared that when actual damages proven by receipts during the trial amount to less than P25,000.00, such as in the present case, the award of temperate damages for P25,000.00, is justified in lieu of actual damages for a lesser amount. This Court ratiocinated therein that it was anomalous and unfair that the heirs of the victim who tried but succeeded in proving actual damages to less P25,000.00 only would be in a worse situation than those who might have presented no receipts at all but would

be entitled to P25,000.00 temperate damages. Thus, instead of P18,420.82, an amount of P25,000.00 as temperate damages should be awarded to the heirs of Norman. Actual damages for loss of earning capacity cannot be awarded in this case since there was no documentary evidence to substantiate the same.62Although there are exceptions to this rule, none is availing in the present case.63 Moreover, exemplary damages in the amount of P25,000.00 should be awarded in this case since the qualifying circumstance of treachery was firmly established.64 WHEREFORE, the Decision of the Court of Appeals dated 31 March 2005 is hereby AFFIRMED with MODIFICATIONS: We award Norman's heirs civil indemnity of P50,000.00 for Norman's death; moral damages, in the amount of P50,000.00; temperate damages, in lieu of actual damages, in the amount of P25,000.00; and lastly, exemplary damages in the amount of P25,000.00. SO ORDERED. Panganiban, C.J., Chairperson, Ynares-Santiago, Austria-Martinez, Callejo, Sr., J.J., concur.

EN BANC G.R. No. L-32040 October 25, 1977 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO PAGAL y MARCELINO and JOSE TORCELINO y TORAZO, defendants-appellants. Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and Solicitor Leonardo L. Cruz for appellee. Ciriaco Lopez, Jr. for appellants.

CONCEPCION, JR. J.:

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In Criminal Case No. CCC-VI-5 (70) of the Circuit Criminal Court of Manila, the accused, Pedro Pagal y Marcelino and Jose Torcelino y Torazo were charged with the crime of robbery with homicide, committed as follows: ñé+.£ªwph!1

That on or about December 26, 1969, in the City of Manila, Philippines, the said accused, conspiring and confederating together and mutually helping each other, did then and there wilfully, unlawfully and feloniously, with intent to gain, and by means of violence, take away from the person of one Gau Guan, cash amounting Pl,281.00. Philippine currency, to the damage and prejudice of the said Gau Guan in the said sum of Pl,281.00; that on the occasion of the said robbery and for the purpose of enabling them to take, steal and carry away the said amount of P1,281.00, the herein accused, in pursuance of their conspiracy, did then and there wilfully, unlawfully and feloniously, with intent to kill and taking advantage of their superior strength, treacherously attack, assault and use personal violence upon the said Gau Guan, by then and there stabbing him with an icepick and clubbing him with an iron pipe on different parts of his body, thereby inflicting upon him mortal wounds which were the direct and immediate cause of his death thereafter. Contrary to law, and with the generic aggravating circumstances of (1) nightime purposely sought to better accomplish their criminal design; (2) evident premeditation; (3) in disregard of the respect due the offended party; and (4) with abuse of confidence, the accused being then employees of the offended party. 1 When the case was called for affaigmnent, counsel de oficio for the accused infomred said court of their intention to enter a plea of guilty provided that they be allowed afterwards to prove the mitigating circumstances of sufficient provocation or threat on the part of the offended party immediately preceding the act, and that of having acted upon an impulse so powerful as to produce passion and obfuscation. 2 Therafter, the trial judge propounded to them the questions and the accused gave the answers quoted hereunder:

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Court: Your lawyer here has manifested your desire to enter a plea of guilty to the offense charged, robbery with homicide. Do you know that by agreeing to that manifestation of your lawyer, you will be admitting the commission of the crime charged? Accused: We agree, your honor, to what our lawyer said, but we would like to explain something. Court: Your lawyer here has stated that you will still prove mitigating circumstances. Is that what you like to explain?

Accused: Yes, your honor. Court: If that is the case, I will give you a chance. Accused: Yes, your honor. Court: Do you know that by agreeing to that manifestation, you will be admitting the commission of the crime charged, robbery wit,. homicide? Accused: Yes, your honor. Court: And for which this court might sentence you to death or life imprisonment? Accused: Yes, your honor. Court: And notwithstanding what is explained to you, you still insist in your desire to enter a plea of guilty to the offense charged? Accused: Yes, your honor. Court: Q Notwithstanding again the warning of the court that the maximum penalty impossable is death? A Yes, your honor. Court: Arraign the accused. (At this stage, both accused were arraigned and both pleaded guilty to the offense charged). 3 Thereafter, the accused presented evidence to prove the mitigating circumstances of sufficient provocation on the part of the victim immediately preceding the act and acting upon an impulse so powerful as to produce passion and obfuscation. After the accused had rested their case, the prosecution presented the statements 4 of the accused, and other pertinent documents regarding the investigation of the case. 5

After the trial, the court a quo rendered its decision, the dispositive portion of which reads as follows:

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WHEREFORE, both accused are hereby found guilty beyond reasaonable doubt as principals of the crime of robbery with homicide and there being proven the aggravating circumstances of nighttime, evident premeditation and disregard of respect due the offended party offset only by the mitigating circumstance of their plea of guilty, sentences each one of them to DEATH, jointly and severally indemnify the heirs of the deceased Gau Guan; P15,000.00 for moral damages; P15,000.00 for exemplary damages, all amounts to bear interest until they shall have been fully paid; the sum of P1,281.00 represnting the amount taken from the victim; and to pay proportionately the costs. 6 The case is now before this Court for mandatory review on account of the death penalty imposed upon the accused.

The appellant Pedro Pagal contends that the trial court erred in convicting him of the crime of robbery with homicide instead of declaring him liable only for his individual acts, claiming that the record is bereft of any proof or evidence that he and his co-appellant Jose Torcelino conspired to commit the crime of robbery with homicide. The appellant's position is not well-taken. His denial of conspiracy with his co-appellant Jose Torcelino cannot be given credence in view of the clear and convincing confession of his guilt in his statement 7 signed by him before the police investigators several hours after the commission of the crime. Besides, when he pleaded guilty to the charge, he is deemed to have admitted all the material facts alleged in the information. 8 By his plea, the appellant admitted not only the commission of the crime but also the circumstances surrounding its commission, including the allegations of conspiracy. A plea of guilty when formally entered on arraignment, is sufficient to sustain a conviction even for a capital offense without the introduction of further evidence, 9 the requisite proofs having been supplied by the accused himself. 10 We find, therefore, that the trial court did not commit any error in convicting the appellant Pedro pagal of the crime of robbery with homicide.

The appellants further assail the trial court in not appreciating in their favor the mitigating circumstances of sufficient provocation, and passion or obfuscation. Again, the appeflants'contention is devoid of merit. Firstly, since the alleged provocation which caused the obfuscation of the appellants arose from the same incident, that is, the alleged maltreatment and/or ill-treatment of the appellants by the deceased, these two mitigating circumstances cannot be considered as two distinct and separate circumstances but should be treated as one. 11 Secondly, the circumstance of passion and obfuscation cannot be mitigating in a crime which — as in the case at bar — is planned and calmly meditated before its execution. Thus, in People vs. Daos, 12 a case of robbery with homicide, this Court rejected the claim of the appellants therein that passion and obfuscation should have been estimated in their favor, because the death of the victim therein took place on the occasion of a robbery, which, before its execut,.on, had been planned and calmly meditated by the appellants. Thirdly, the maltreatment that appellants claim the victim to have committed against them occurred much earlier than the date of the commission of the crime. Provocation in order to be a mitigating circumstance must be sufficient and immediately proceeding the act. We hold that the trial court did not commit any error in not appreciating the said mitigating circumstances in favor of the appellants.

Finally, the appellants claim that the trial court erred in considering the aggravating circumstances of nighttime, evident premeditation, and disregard of the respect due the offended party on account of his rank and age. Although the trial court correctly considered the aggravating circumstance of nocturnity because the same was purposely and deliberately sought by the a,)pellants to facilitate the commission of the crime, nevertheless, We disagree with its conclusion that evident premeditation and disregard of the respect due the offended party were present in the commission of the crime. Evident premeditation is inherent in the crime of robbery. 13 However, in the crime of robbery with homicide, if there is evident premeditation to kill besides stealing, it is considered as an aggravating circumstance. 14 In other words, evident premeditation will only be aggravating in a complex crime of robbery with homicide if it is proved that the plan is not only to rob, but also to kill. 15 In the case at bar, a perusal of the written statements 16 of the appellants before the police investigators show that their original plan was only to rob, and that, they killed the deceased only when the latter refused to open the "kaha de yero", and fought with them. The trial court, therefore, erred in taking into consideration the aggravating circumstance of evident premeditation.

The aggravating circumstance that the crime was committed with insult or in disregard of the respect due the offended party on account of his rank, age or sex may be taken into account only in crimes against persons or honor, when in

the commission of the crime there is some insult or disrespect shown to rank, age, or sex. 17 lt is not proper to consider this aggravating circumstance in crimes against property. 18 Robbery with homicide is primarily a crime against property and not against persons. Homicide is a mere incident of the robbery, the latter being the main purpose and object of the criminal. 19 The trial court erred in taking into account this aggravating circumstance.

It results that in the commission of the crime, there is only generic aggravating circumstance, i.e., nighttime or nocturnity. Robbery with homicide is punished by reclusion perpetua to death. 20 Since the aggravating circumstance of nighttime is offset by the mitigating circumstance of plea of guilty, the lesser penalty, which is reclusion perpetua, should be imposed upon the appellants. 21 ACCORDINGLY, the judgment of the trial court is modified and the appellnts Pedro Pagal y Marcelino and Jose Torcefino y Torazo are hereby sentenced to suffer each the penalty of reclusion perpetua. In all other respects, the judgment of the trial court is affirmed. With costs against the appellants.

SO ORDERED. Castro, C.J., Fernando, Aquino, Martin, Santos, Fernandez and Guerrero, JJ., concur.

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Teehankee and Makasiar, JJ., concur in the result. Antonio, J., took no part.

SECOND DIVISION G.R. No. 151978

July 14, 2004

ARTURO ROMERA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

QUISUMBING, J.: For review on certiorari is the Decision1 dated January 11, 2002 of the Court of Appeals, in CA-G.R. CR. No. 23753, affirming the August 16, 1999 Order2 of the Regional Trial Court of Cagayan de Oro City, Branch 24, in Criminal Case No. 98-1089. The RTC convicted petitioner Arturo Romera of frustrated homicide and sentenced him to imprisonment ranging from one (1) year, eight (8) months and twenty (20) days of prision correccional as minimum to six (6) years and one (1) day of prision mayor as maximum. He was also ordered to pay private offended party P19,361.15 as actual damages and P10,000 as attorney’s fee. The Information against petitioner reads: On October 4, 1998, at about 7:00 o’clock in the evening, at Sitio Puntod, Barangay Balagnan, Balingasag, Misamis Oriental, within the jurisdiction of the Honorable Court, the above-named accused, with intent to kill, did, then and there, willfully, unlawfully, and feloniously attack, assault, and stab one Roy Mangaya-ay with the use of a bolo, thus, inflicting a mortal wound on the abdomen of the latter; accused thereby performed all the acts of execution which would have produced the felony of Homicide which was not produced because of the timely and effective medical attendance administered on the said victim. CONTRARY TO and in violation of Article 249, in relation with Article 6 of the Revised Penal Code.3 When arraigned, petitioner pleaded not guilty and trial thereafter ensued. The facts, as summarized by the Court of Appeals and borne by the records, are as follows: In the afternoon of October 4, 1998, petitioner Arturo Romera was with the victim, Roy Mangaya-ay, and five other men namely, Eligario "Beboy" Acenas, Dennis "Bobong" Mangaya-ay, Ric Mangaya-ay, Bebing Zulueta and Franklin Generol. They were all headed for Biasong to play volleyball. When they reached Biasong, it was raining, so they decided to while away time at the house of Ciriaca Capil. Franklin Generol hung a string made of cigarette foil on Bebing Zulueta’s pants and said, "There’s a monkey among us." Everybody laughed except Roy Mangaya-ay, who got angry and chided Franklin Generol to stop lest he make enemies. Bebing Zulueta also got angry and pointed a finger at Franklin Generol and said, "Even if you are stronger and older, if you will be hit by my fist, you will crawl." Petitioner then stood up and warned everyone, "You all watch out in Balaguan." He pulled Franklin Generol to join him and said, "Let’s go, there are many boastful people here." Thereafter, petitioner and Franklin left the group. At six o’clock in the evening, Roy and his companions arrived in Balaguan. On their way home, they passed by the house of one Antonio Mangaya-ay. In said house, which is about one kilometer away from petitioner’s own, they saw petitioner already carrying a bolo waiting for them. Suddenly, raising the bolo with his right hand, petitioner uttered, "Here are the brave ones." Roy and his companions ran away but Roy slipped on the muddy ground. Petitioner approached Roy and said, "Come here, brave one." He held Roy up by the collar and stabbed him in the stomach. Roy fell unconscious. When he woke up, he found himself at the provincial hospital where he underwent surgery and stayed for more than three weeks.

After the stabbing incident, petitioner voluntarily surrendered to a certain Tibo Ramoso of the Citizen’s Armed Force Geographical Unit (CAFGU). Ramoso accompanied petitioner to the Balingasay police station. For his part, petitioner testified on what happened as follows: Petitioner and his family were having dinner in their house at around seven o’clock in the evening. Thereafter, they went to bed. While lying in bed, they heard Roy call petitioner and his wife, asking if they had beer and a fighter for sale. He did not answer Roy because he knew that Roy was already drunk. Roy asked for petitioner but when the latter’s wife told him that petitioner was already asleep, he told her to wake her husband up. Petitioner went down the house and asked who was at the door. Just as he opened the door for Roy, Roy thrust his bolo at him. He successfully parried the bolo and asked Roy what it was all about. Roy answered he would kill petitioner. Petitioner tried to prevent Roy from entering, so he pushed the door shut. As Roy was hacking at the wall, petitioner’s wife held the door to allow petitioner to exit in another door to face Roy. He hurled a stone at Roy, who dodged it. Roy rushed to him and hacked him, but he parried the blow. Petitioner grappled for the bolo and stabbed Roy in the stomach. Wounded, Roy begged petitioner for forgiveness. According to petitioner, he ceased harming Roy for fear he might kill him. The trial court discounted petitioner’s story of self-defense. It found that when petitioner got hold of the bolo, there was no more danger to his life. Petitioner was convicted of frustrated homicide. The dispositive part of its decision reads: WHEREFORE, premises considered, judgment is hereby rendered, finding accused ARTURO ROMERA guilty beyond reasonable doubt as principal of the offense charged. Consequently, taking into consideration the mitigating circumstance of voluntary surrender and the provisions of the [I]ndeterminate Sentence Law, he is hereby sentenced to a penalty ranging from One (1) year Eight (8) months and Twenty (20) days of Prision Correccional as minimum to Six (6) years and one (1) day of Prision Mayor as maximum and to pay the private offended party as actual damages, P19,361.15 and another sum of P10,000.00 as attorneys fee without, however, subsidiary imprisonment in case of insolvency. SO ORDERED.4 Petitioner appealed to the Court of Appeals assigning to the trial court the following assignments of error: 1. FAILURE TO APPRECIATE THE THEORY OF SELF DEFENSE. 2. IN THE ALTERNATIVE, FAILURE TO APPRECIATE SPECIAL PRIVILEGED MITIGATING CIRCUMSTANCE OF INCOMPLETE SELF DEFENSE, ARTICLE 69, REVISED PENAL CODE WHICH LOWER THE PENALTY BY TWO DEGREES. 3. FURTHER ALTERNATIVE, FAILURE TO APPLY ARTICLE 62 (5) REVISED PENAL CODE, WHICH LOWER THE PENALTY BY ONE DEGREE LOWER WITH THE PRESENCE OF TWO OR MORE MITIGATING CIRCUMSTANCES.5 The Court of Appeals affirmed the trial court’s judgment. It pointed out that assuming arguendo that it was the victim who was the aggressor at the start, the unlawful aggression ceased to exist when petitioner took possession of the bolo from the victim. Absent unlawful aggression, the justifying circumstance of self-defense becomes unavailing. The appellate court also ruled that Article 696 of the Revised Penal Code finds no application in this case. It explained that there can be no self-defense, complete or incomplete, unless the victim has committed unlawful aggression against the person defending himself. It held, however, that petitioner is entitled to the mitigating circumstance of voluntary surrender as it was established during trial that after the incident he surrendered himself to the CAFGU and later on to the police authorities. Undeterred, petitioner filed the instant petition for review on the sole ground that both the RTC and the Court of Appeals erroneously failed to apply Article 64 (5) of the Revised Penal Code, which lowers the imposable penalty by one degree when two or more mitigating circumstances are present.

Petitioner contends that the victim provoked him to a fit of anger when the latter woke him up and thrust a bolo at him without warning as petitioner opened the door. Moreover, by hacking and destroying the bamboo wall of his house, and endangering the lives of his children, the victim also obfuscated his thinking and reasoning processes, says the petitioner. For public respondent, the Office of the Solicitor General (OSG) counters that the mitigating circumstances of provocation and passion or obfuscation are unavailing to petitioner since it was he who initiated the attack. The OSG insists that it was not the victim who went to petitioner’s house, but petitioner who went to where the victim was resting. We note that while both the RTC and the Court of Appeals did not categorically state who started the attack, it can be reasonably gleaned from their decisions that it was the victim who initiated the aggressive encounter. This finding of fact is amply supported by the evidence on record. Are the mitigating circumstances of provocation and passion or obfuscation present in this case? Thrusting his bolo at petitioner, threatening to kill him, and hacking the bamboo walls of his house are, in our view, sufficient provocation to enrage any man, or stir his rage and obfuscate his thinking, more so when the lives of his wife and children are in danger. Petitioner stabbed the victim as a result of those provocations, and while petitioner was still in a fit of rage. In our view, there was sufficient provocation and the circumstance of passion or obfuscation attended the commission of the offense. But, we must stress that provocation and passion or obfuscation are not two separate mitigating circumstances. Wellsettled is the rule that if these two circumstances are based on the same facts, they should be treated together as one mitigating circumstance.7 From the facts established in this case, it is clear that both circumstances arose from the same set of facts aforementioned. Hence, they should not be treated as two separate mitigating circumstances. Nonetheless, we hold that since the mitigating circumstance of voluntary surrender is also present, Article 64 (5) of the Revised Penal Code should be applied, to wit: ART. 64. Rules for the application of penalties which contain three periods. –… ... 5. When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances. ... The penalty for frustrated homicide, pursuant to Article 508 of the Revised Penal Code, is the penalty next lower in degree than that prescribed by law for consummated homicide. The penalty for consummated homicide is reclusion temporal, hence the penalty next lower in degree is prision mayor. There being two mitigating circumstances and no aggravating circumstance, pursuant to Article 64 (5) of the Revised Penal Code, the next lower penalty, prision correccional, is the next statutory penalty. But following the Indeterminate Sentence Law herein applicable, the minimum term of the penalty that should be imposed on petitioner for frustrated homicide should be within the range of arresto mayor in any of its periods or from one (1) month and one (1) day to six (6) months, while the maximum term should be within the range of prision correccional in its medium period or two (2) years, four (4) months and one (1) day to four (4) years and two (2) months. WHEREFORE, the Decision dated January 11, 2002 of the Court of Appeals affirming the Order of the Regional Trial Court of Cagayan de Oro City, Branch 24, is MODIFIED as far as the penalty imposed is concerned. Petitioner ARTURO ROMERA is hereby sentenced to suffer the indeterminate penalty of six (6) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. He is also ORDERED to pay the private offended party P19,361.15 as actual damages, and P10,000.00 as attorney’s fees. Costs de oficio. SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

EN BANC G.R. No. L-12883

November 26, 1917

THE UNITED STATES, plaintiff-appellee, vs. CLEMENTE AMPAR, defendant-appellant. Filemon A. Cosio for appellant. Acting Attorney-General Paredes for appellee.

MALCOLM, J.: A fiesta was in progress in the barrio of Magbaboy, municipality of San Carlos, Province of Occidental Negros. Roast pig was being served. The accused Clemente Ampar, a man of three score and ten, proceeded to the kitchen and asked Modesto Patobo for some of the delicacy. Patobo's answer was; "There is no more. Come here and I will make roast pig of you." The effect of this on the accused as explained by him in his confession was, "Why was he doing like that, I am not a child." With this as the provocation, a little later while the said Modesto Patobo was squatting down, the accused came up behind him and struck him on the head with an ax, causing death the following day. As the case turns entirely on the credibility of witnesses, we should of course not interfere with the findings of the trial court. In ascertaining the penalty, the court, naturally, took into consideration the qualifying circumstance of alevosia. The court, however, gave the accused the benefit of a mitigating circumstance which on cursory examination would not appear to be justified. This mitigating circumstance was that the act was committed in the immediate vindication of a grave offense to the one committing the felony. The authorities give us little assistance in arriving at a conclusion as to whether this circumstance was rightly applied. That there was immediate vindication of whatever one may term the remarks of Patobo to the accused is admitted. Whether these remarks can properly be classed as "a grave offense" is more uncertain. The Supreme court of Spain has held the words "gato que arañaba a todo el mundo," "landrones," and "era tonto, como toda su familia" as not sufficient to justify a finding of this mitigating circumstance. (Decisions of January 4, 1876; May 17, 1877; May 13, 1886.) But the same court has held the words "tan landron eres tu como tu padre" to be a grave offense. (Decision of October 22, 1894.) We consider that these authorities hardly put the facts of the present case in the proper light. The offense which the defendant was endeavoring to vindicate would to the average person be considered as a mere trifle. But to this defendant, an old man, it evidently was a serious matter to be made the butt of a joke in the presence of so many guests. Hence, it is believed that the lower court very properly gave defendant the benefit of a mitigating circumstance, and correctly sentenced him to the minimum degree of the penalty provided for the crime of murder. lawph!1.net

Judgment of the trial court sentencing the defendant and appellant to seventeen years four months and one day of cadena temporal, with the accessory penalties provided by law, to indemnify the heirs of the deceased, Modesto Patobo, in the amount of one thousand pesos, and to pay the costs is affirmed, with the costs of this instance against the appellant. So ordered. Arellano, C.J., Torres, and Araullo, JJ., concur. Johnson, J., concurs in the result. Street, J., did not sign. Separate Opinions CARSON, J., concurring: I concur. I think, however, that the extenuating circumstances attending the commission of the crime fall under the provisions of section 7 of the Penal Code rather than under the provisions of section 5 of that Code as indicated in the opinion.

EN BANC G.R. No. L-45373

March 31, 1937

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PRIMO PARANA, defendant-appellant. Lorenzo Sumulong for appellant. Office of the Solicitor-General Tuason for appellee. AVANCEÑA, C.J.: The accused Primo Parana appeals from the judgment of the Court of First Instance of Occidental Negros sentencing him, for the crime of murder committed on the person of Manuel Montinola, to the penalty of reclusion perpetua and to indemnify the heirs of the deceased in the sum of P1,000, with the costs. On the morning of May 19, 1936, in the municipality of Silay, Occidental Negros, the deceased, who was taking part in a game of monte in the house of Jose Lapuos, was informed by the chauffeur Valentin Poblacion that his brother Glicerio Montinola's car, which he had ordered for his trip to the municipality of Cadiz, was ready to start. Five minutes later the deceased came downstairs and upon reaching the street, he turned towards the car which was waiting or him. As the moment the chauffeur Poblacion, who saw the appellant behind the deceased in the attitude of stabbing him with a dagger, shouted to warn him of the danger, and the deceased, looking behind, really saw the appellant about to stab him. The deceased, really saw the appellant about to stab him. The deceased, defending himself, retreated until he fell on his back into a ditch two meters wide and 1.7 meter deep. Without lessening the aggression the appellant mounted astride of the deceased and continued to stab him with the dagger. As the chauffeur Poblacion had been making on alarm from the beginning, Liboro Montelibano, who was in nearby drug store, about fifty meters away, went to said place and found the appellant astride of the deceased who was defending himself with his hands and feet from the blows the appellant gave him with the dagger. Montelibano wrested the dagger from the hands of the appellant who, finding himself disarmed, seized the revolver which the deceased carried in his belt and tried to fire at the latter without succeeding in his attempt because Montelibano likewise wrested said weapon from him. After the appellant and the deceased had been separated, the former still asked Montelibano for the weapon taken from him, but at that moment a policeman arrived and the appellant was placed under arrest. When the deceased was later removed from the ditch into which he had fallen, he was found wounded and was taken to the municipal building. He was later transferred to the provincial hospital where he was treated by Dr. Ochoa, expiring six days later, as a result of general peritonitis produced by one of his wounds. Then preceding night, at about 11 o'clock, monte had also been played in the house of Glicerio Montinola, brother of the deceased. The deceased took part in said game where the appellant was designated to attend to the players. One Lamay, who was also taking part in the game, gave the appellant the sum of P2 to buy beer. For failure of the appellant to immediately comply with this request, a discussion ensued between him and Lamay and, as both raised their voices, they were admonished by the deceased. As the appellant left and went to Lapuos' house where he lived, where the deceased took part in another game on the following day, and where said deceased came from when he was attacked. At about 7 o'clock in the morning of the crime, the appellant purchased from the store of the Japanese Matzu Akisama a hunting knife (Exhibit F), which is the same knife used by him in attacking the deceased. On the same morning, at about seven thirty, the appellant went to the house of Crispin Espacio for whom he used to work, to ask to be excused from work that day as he intended to wreak vengeance on somebody. Espacio advised him against it as he might again go to Bilibid prison, inasmuch as he had already served a term for the crime of homicide. These are the facts found by this court to have been established in this case, proving beyond all doubt that it was the intention of the appellant to kill the deceased, judging not only from the condition of the weapon with which he provided himself but also by the manner and circumstances under which he committed the aggression. The appellant's testimony is the only evidence in his defense. According to him, on the morning of the crime he saw the deceased taking part in the game in Lapuos' house where he lived. The deceased then uttered threatening words to him, which he disregarded, leaving the house and going to a nearby Chinese store. Sometime, later, as he was on his way to Lapuos' house, he saw the deceased coming down and, approaching the latter, he spoke to him about the incident of the previous night and of their meeting a few minutes before, asking said deceased to forgive and not wreak vengeance on him. The deceased, by way of an answer, drew the revolver which he carried in his belt, and the appellant, in their face of

such attitude, attempted to wrest the weapon from him. In the struggle the deceased fell on his back into a ditch and the appellant mounted astride of him, tried to wrest the revolver from him, attacking the deceased therewith. When the appellant had succeeded in taking possession of the revolver the deceased got up and walked towards the car. At that moment Liboro Montelibano appeared and the appellant turned over the knife and the revolver to him. This version of the incident given by the appellant in his testimony, without any corroboration, is contradicted by the testimony of the chauffer Poblacion and of Liboro Montelibano. Furthermore it is improbable, taking into consideration the fact that he was the offended party, suffering from the justice of the offense received, provided himself with a lethal weapon and approached the deceased, which circumstances do not agree with his attitude according to his testimony. The court correctly found that the qualifying circumstance of treachery was present in the commission of the crime. The appellant, in inspite of having seen the deceased in the upper story of Lapuos' house, did not wish to attack the latter there undoubtedly to avoid his being defended by the many players who were with him. Instead, he waited for the deceased at a merely store until the latter came down, and attacked him while he had his back turned and could not see the appellant. All these, which were the beginning of the execution of the appellant's design to kill the deceased, constitute treachery inasmuch as they tended to avoid every risk to himself arising from the defense which the deceased might make (U. S. vs. MacMann, 4 Phil., 561; U. S. vs. Pendleton, 7 Phil., 457; U. S. vs. Mercoleta, 17 Phil., 317; U. S. vs. Cabanog, 34 Phil., 620). It matters not that the deceased accidentally turned around upon hearing Poblacion's warning and was able to defend himself from the elbow which, at that moment, the appellant was about to give with a dagger, because the treacherous character of a means employed in the aggression does not defend upon the result thereof but upon the means itself, in connection with the aggressor's purpose in employing it. Otherwise this reason the law does not require that the treacherous risk to the person of the aggressor arising from the defense which the offended party might make, it being sufficient that it tend to this end. However, even considering at the moment the deceased turned around and saw the appellant in the attitude of stabbing him, this court also finds therein the elements of treachery inasmuch as the aggression, under the circumstances, was so sudden that the deceased, who carried a revolver in his belt, had no chance to defend himself with it. Considering the incident at the moment the appellant mounted astride of the deceased, who defend himself only with his feet and hands without having been able to use the revolver carried by him in his belt, when said appellant, in such situation, inflicted the wound which caused the death of the deceased, he likewise acted with treachery on the ground that, under the circumstances, he was not running, as in fact he did not run, any risk arising from the defense which the deceased might make. And so, whether the beginning and the end of the aggression be considered singly, or the development thereof be considered as a whole, it is evident that the aggravating circumstance of treachery was present. The aggravating circumstance that the appellant is a recidivist must be taken into consideration. The mitigating circumstance that he had acted in the immediate vindication of a grave offense committed against him a few hours before, when he was slapped by the deceased in the presence of many persons, must likewise be taken into consideration. Although this offense, which engenders perturbation of mind, was not so immediate, this court is of the opinion that the influence thereof, by reason of its gravity and the circumstances under which it was inflicted, lasted until the moment the crime was committed. Lastly, the other mitigating circumstance that the appellant had voluntarily surrendered himself to the agents of the authorities must be considered. For the foregoing considerations, this court finds the appellant guilty of the crime of murder qualified by treachery, and, taking into consideration the presence of one aggravating and two mitigating circumstances in the commission of the crime, and applying the Indeterminate Sentence Law, Act No. 4103, he is sentenced to the penalty of from ten years of prision mayor, as the minimum, to seventeen years, four months and one day of reclusion temporal, as the maximum, affirming the appealed sentence in all other respects, with the costs. So ordered. Abad Santos, Imperial and Diaz, JJ., concur.

EN BANC G.R. No. L-45100

October 26, 1936

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. EPIFANIO DIOKNO and ROMAN DIOKNO, defendants-appellants. Ramon Diokno and Gabriel N. Trinidad for appellants. Office of the Solicitor-General Hilado for appellee.

VILLA-REAL, J.: Epifanio Diokno and Roman Diokno appeal to this court from the judgment of the Court of First Instance of Laguna, the dispositive part of which reads as follows: In view of the foregoing considerations, the court finds the accused Epifanio Diokno and Roman Diokno guilty of the crime of murder, beyond a reasonable doubt, and sentences each of them to reclusion perpetua, to indemnify jointly and severally the heirs of the deceased in the sum of P1,000 and to pay the costs of the suit. It is so ordered. In support of their appeal, the appellants assign the following alleged errors as committed by the court a quo in its judgment in question, to wit: 1. The lower court erred in accepting Exhibit E as evidence. 2. The lower court erred in admitting Exhibit K as evidence. 3. The lower court erred in not acquitting the appellant Roman. 4. The lower court erred in sentencing the appellant Epifanio to reclusion perpetua. The following facts have been proven beyond a reasonable doubt during the trial: The deceased Yu Hiong was a vendor of sundry goods in Lucena, Tayabas. At about 7 o'clock in the morning of January 4, 1935, Salome Diokno, to whom Yu Hiong was engaged for about a year, invited the latter to go with her. Yu Hiong accepted the invitation but he told Salome that her father was angry with him. Salome answered him: "No matter, I will be responsible." At about 6 o'clock in the afternoon of said day, Yu Hiong and Salome Diokno took an automobile and went to the house of Vicente Verina, Salome's cousin, in Pagbilao. As they found nobody in the house, they went on their way up to San Pablo, Laguna. On January 5th or 6th of said year, Roman Diokno telegraphed his father Epifanio Diokno, who was in Manila, informing him that Salome had eloped with the Chinese Yu Hiong. On the morning of January 7, 1935, Epifanio Diokno and Roman Diokno went to San Pablo, Laguna, in search of the elopers. Having been informed that the latter were stopping at the house of Antonio Layco, they went there. Upon arriving near the house, they saw Yu Hiong coming down the stairs. When Yu Hiong saw them, he ran upstairs and they pursued him. As the Chinese found the door of the house locked, he shouted that it be opened for him. At that moment, he was overtaken by the accused who carried knives locally known as balisong, of different sizes. Yu Hiong fell on his knees and implored pardon. In that situation Roman Diokno stabbed him with the knife in the back and later in the left side. Epifanio Diokno also stabbed him once. Yu Hiong fell on the landing of the stairs in the balcony, and there he was again stabbed repeatedly. Then Roman Diokno said: "Enough, father." Yu Hiong lost consciousness. Juan Alcantara, who lived on the same street, Hermanos Belen, in front of Antonio Layco's house, saw the accused pursue Yu Hiong and fired shots for the police to come. Upon hearing the shots, municipal policeman Francisco Curabo appeared and found Yu Hiong pale and lying on the landing of the stairs. He then asked who had wounded the Chinese and the accused Epifanio Diokno answered that it was he. The policeman took the knife (Exhibit C) which Epifanio Diokno carried in his right hand and brought him to police headquarters. Roman Diokno had left before the

policeman arrived and he was not located until after three days. The municipal president of San Pablo, Laguna, also went to the scene of the crime, found the Chinese almost unconscious and questioned him, putting down his answers in Exhibit E. The Chinese was brought to the provincial hospital of San Pablo where he was examined by Drs. David Evangelista and Manuel Quisumbing, who found that he had five incised wounds in different parts of the body, one of them at the back and about three and a half inches long, piercing the pleura and penetrating the lower lobe of the right lung about an inch, which wound was necessarily mortal and which caused the death of the victim. On January 8, 1935, while the said Chinese was in a serious condition in the hospital, he made a statement telling how he was attacked by the accused (Exhibit K). The accused, testifying as witnesses in their own behalf, stated that they had not gone to San Pablo together on the day in question; that when Roman Diokno arrived, his father Epifanio Diokno was coming down the stairs of Antonio Layco's house with a knife in his hand; that Epifanio Diokno told his son Roman to go home and tell their relatives what had happened; that when Epifanio Diokno overtook Yu Hiong on the landing of the stairs of Antonio Layco's house, he asked Yu Hiong whether he was willing to marry his daughter; that the Chinese answered him in the negative and at the same time tried to take something from his pocket; that as Epifanio knew that Yu Hiong carried a revolver, he feared the Chinese might harm him; he became obfuscated, drew his knife and knew not what happened afterwards. The first question to be decided in the present appeal is whether or not the court a quo erred in admitting as evidence Exhibit E, consisting in the investigation conducted by the municipal president of San Pablo in the same place where Yu Hiong had fallen a few minutes before, at about 1.30 p. m. on January 7, 1935, and wherein Yu Hiong, answering the questions asked by said municipal president, stated that it was Ramon Diokno and Epifanio Diokno who had wounded him. It is argued by the defense that said document Exhibit E should not be admitted on the ground that some words had been altered and because it has not been proven that declarant had a sense of impending death. It does not appear that said document was altered after it had been signed, but on the contrary, municipal president Jacinto Peñaflor, upon being cross-examined by the defense, declared that he neither erased any word nor put another in its place after said document had been finished. The fact that Yu Hiong failed to state that he had given up all hope of life, in answering the municipal president's questions, does not make his declaration inadmissible. It is enough if, from the circumstances of the case, it can be inferred with certainty that such must have been his state of mind (People vs. Chan Lin Wat, 50 Phil., 182). In the present case, Yu Hiong was semiconscious as a result of the wounds received by him and, consequently, he could not have the hope to live when he made his declaration immediately after he was mortally wounded. But even if the document Exhibit E were not admissible as an ante mortem declaration, it is admissible as a part of the res gestæbecause it was made under circumstances so proximate to the incident that it may be considered as a part thereof. (People vs. Portento and Portento, 48 Phil., 971; People vs. Palamos, 49 Phil., 601.) The first assignment of alleged error is, therefore, untenable. With respect to the second assignment of alleged error consisting in that the court a quo erred in admitting Exhibit K as an ante mortem declaration of Yu Hiong, because it does not appear that when the declarant made it he was aware of impending death and that he did not die until three days after making it, all that has been said relative to Exhibit E, which is the subject matter of the first assignment of alleged error, may be repeated in connection with said Exhibit K, in the sense that it is admissible as an ante mortem declaration. Furthermore, when the deceased made the declaration Exhibit K, he complained of great difficulty in breathing and of being very ill. The fact that he did not die until three days later neither implies that he had no sense of impending death when he made his declaration because he did not improve thereafter but became worse until he died; nor detracts from its character of an ante mortem declaration because what gives the declaration such character is the declarant's conviction, upon making it, that he is not going to live (U. S. vs. Mallari, 29 Phil., 14). The third assignment of alleged error consists in the failure of the court a quo to acquit the appellant, Roman Diokno. The testimony of the eyewitnesses Juan Alcantara and Antonio Layco corroborated by the different dimensions of the wounds which, according to Dr. Manuel Quisumbing, were caused by two instruments of different sizes, and the ante mortem declarations (Exhibits E and K) of the deceased, leave no room for doubt that Roman Diokno cooperated with

his father and stabbed the deceased Yu Hiong with a knife in different parts of the body. Furthermore, the deceased stated in his ante mortem declaration (Exhibit K) that it was Roman Diokno who inflicted the necessarily mortal wound in his back, which caused his death. We find the fourth assignment of alleged error well founded. The circumstance of abuse of superior strength, qualifying the crime of murder, which the trial court found to have been proven, has not been established beyond a reasonable doubt. In the case of United States vs. Devela (3 Phil., 625), this court said that "the mere fact that the number of the assailants is superior to that of those attacked by them is not sufficient to constitute the aggravating circumstance of abuse of superiority." In this case we have the photographs of the body of the deceased (Exhibits D and D-1) showing that he had a strong constitution: but there is no evidence of the physical constitution of the accused Epifanio Diokno and Roman Diokno. Therefore, we cannot determine whether or not said accused were physically stronger than the deceased and whether or not they abused such superiority. Neither does this court find the existence of the other circumstance qualifying murder, that is, evident premeditation, proven beyond a reasonable doubt because, even assuming that both the accused went to San Pablo, Laguna, each carrying the knife used by him in attacking Yu Hiong, it being customary for the people of said province to carry it, it cannot be inferred with certainty from the mere fact that they carried knives that their intention in going to San Pablo was to look for the deceased in order to kill him. In order that premeditation may be considered either as an aggravating circumstance or as a qualifying circumstance, it must be evident, that is, the intention to kill must be manifest and it must have been planned in the mind of the offender and carefully meditated. It is not enough that it arose at the moment of the aggression. Therefore, there having been neither abuse of superior strength nor evident premeditation, the crime committed by the accused is simple homicide. lâwphi1.nêt

The presence of the fifth mitigating circumstance of article 13 of the Revised Penal Code, that is, immediate vindication of a grave offense to said accused, may be taken into consideration in favor of the two accused, because although the elopement took place on January 4, 1935, and the aggression on the 7th of said month and year, the offense did not cease while Salome's whereabouts remained unknown and her marriage to the deceased unlegalized. Therefore, there was no interruption from the time the offense was committed to the vindication thereof. Our opinion on this point is based on the fact that the herein accused belong to a family of old customs to whom the elopement of a daughter with a man constitutes a grave offense to their honor and causes disturbance of the peace and tranquility of the home and at the same time spreads uneasiness and anxiety in the minds of the members thereof. The presence of the sixth mitigating circumstance of said article 13, consisting in having acted upon an impulse so powerful as naturally to have produced passion or ofuscation, may also be taken into consideration in favor of the accused. The fact that the accused saw the deceased run upstairs when he became aware of their presence, as if he refused to deal with them after having gravely offended them, was certainly a stimulus strong enough to produce in their mind a fit of passion which blinded them and led them to commit the crime with which they are charged, as held by the Supreme Court of Spain in similar cases in its decisions of February 3, 1888, July 9, 1898, February 8, 1908, May 25, 1910, July 3, 1909, and in other more recent ones. The seventh circumstance of article 13 of the Revised Penal Code, consisting in having surrendered himself immediately to the agents of persons in authority, should also be taken into consideration in favor of the accused Epifanio Diokno. In view of the foregoing considerations, this court concludes that the accused are guilty beyond a reasonable doubt of the crime of homicide defined and punished in article 249 of the Revised Penal Code, the penalty prescribed therein being reclusion temporal in its full extent. Three mitigating circumstances must be taken into consideration in favor of the accused Epifanio Diokno and two in favor of the accused Roman Diokno, with no aggravating circumstance, thus authorizing the imposition of the penalty next lower to that prescribed by law (reclusion temporalin its full extent), or prision mayor in its full extent, in the period that this court deems applicable, which is the medium period in this case, in accordance with the provisions of article 64, rule 5, that is eight years and one day ofprision mayor. Both accused should be granted the benefits of the indeterminate sentence provided in Act No. 4103, as amended by Act No. 4225, which prescribes a penalty the minimum of which shall be taken from that next lower to prision mayor, or prision correccional of from six months and one day to six years. Taking into account the circumstances of the case, the indeterminate penalty to which each of said accused must be sentenced is fixed at from two years and one

day of prision correccional to eight years and one day of prision mayor, crediting each with one-half of the time during which they have undergone preventive imprisonment (art. 29, Revised Penal Code). Wherefore, this court declares the accused Epifanio Diokno and Roman Diokno guilty of the crime of homicide and sentences each of them to an indeterminate penalty from two years and one day of prision correccional to eight years and one day of prision mayor, crediting them with one-half of the time during which they have undergone preventive imprisonment, and to indemnify the heirs of the deceased in the sum of P1,000, with the costs of both instances. So ordered. Avanceña, C. J. Abad Santos, and Imperial, JJ., concur.

SECOND DIVISION G.R. No. 139907

March 28, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARCELO BATES, accused-appellant. MARCELO BATES, JR. (At-Large), accused. AUSTRIA-MARTINEZ, J.: Before us is an appeal taken by accused Marcelo Bates from the Judgment of the Regional Trial Court of Ormoc City (Branch 35) finding him guilty beyond reasonable doubt of the crime of Murder and sentencing him to suffer imprisonment of "forty years of reclusion perpetua". The Information states: That on or about the 28th day of November 1995, at around 5:30 o’clock in the afternoon, in Brgy. Esperanza, Ormoc City, and within the jurisdiction of this Honorable Court, the above-named accused MARCELO BATES and MARCELO BATES, JR., conspiring together and confederating with and mutually helping and aiding one another, with treachery, evident premeditation and intent to kill, being then armed with long bolos, did then and there willfully, unlawfully and feloniously stab and hack to death the person of the victim herein, JOSE BOHOLST without giving the latter sufficient time to defend himself, thereby inflicting upon him multiple wounds which caused his instantaneous death. Death Certificate and Autopsy Report are hereto attached. In violation of Article 248, Revised Penal Code.1 Upon arraignment, Marcelo Bates entered a plea of not guilty. The version of the prosecution: Around 2:00 in the afternoon of November 28, 1995, Edgar Fuentes, Simon Fuentes and Jose Boholst left Barangay Esperanza, Ormoc City to deliver copra to a certain Fely Rodado at Barangay Green Valley, Ormoc City. After delivering copra around 5:00 in the afternoon, the three men headed back to Barangay Esperanza. While they were along a trail leading to the house of Carlito Bates, the latter suddenly emerged from the thick banana plantation surrounding the trail, aiming his firearm at Jose Boholst who was then walking ahead of his companions. Jose grabbed Carlito’s right hand and elbow and tried to wrest possession of the firearm. While the two were grappling for possession, the gun fired, hitting Carlito who immediately fell to the ground. At that instant, Marcelo Bates and his son Marcelo Bates, Jr., brother and nephew of Carlito, respectively, emerged from the banana plantation, each brandishing a bolo. They immediately attacked Jose hacking him several times. Jose fell to the ground and rolled but Marcelo and his son kept on hacking him. Marcelo, then, turned to Simon and Edgar and shouted "huwes de kutsilyo". Upon hearing the same, Simon and Edgar ran.2 Around 5:30 of the same afternoon, Concepcion Boholst, wife of Jose, was at their home preparing dinner. Upon being informed by a certain Violeta Fuentes that Jose was waylaid, she immediately went to the place where the incident reportedly happened which is less than a hundred meters from their house. There, she saw Marcelo Bates and his son Marcelo, Jr. hacking Jose who was lying face up. She pleaded for them to stop but they did not listen. She did not see Carlito. She went home fearing for her life, thinking that Marcelo and his son might turn their ire on her.3 The version of the defense: Around 5:00 in the afternoon of November 28, 1995, Ponciano Sano went to the house of Marcelo Bates. Ponciano was sent by Barangay Captain Feliseo Sano to get a chicken from Marcelo. While they were trying to catch a chicken, they noticed Jose Boholst, Edgar Fuentes, and Simon Fuentes approach the house of Carlito Bates which is about twenty meters away from Marcelo’s house. Thereafter, they saw Jose drag Carlito out of the latter’s house while both were arguing and grappling. Marcelo immediately ran towards Jose and Carlito but when Marcelo was about to approach them, Jose shot Carlito with a gun. Edgar and Simon ran away. Upon seeing Carlito fall to the ground,

Marcelo attacked Jose but the latter also fired a shot at him. However, Marcelo was able to duck and avoid being shot. Jose was about to shoot Marcelo a second time but the latter retaliated by hacking Jose with a bolo hitting him on his neck and causing him to fall to the ground. Marcelo then went to the aid of his brother Carlito but upon seeing that he was already dead, he went back to where Jose was lying and again hacked him. Thereafter, Ponciano picked up the gun used by Jose and surrendered it to Barangay Captain Sano. Marcelo also surrendered himself to the said barangay captain. During the whole incident Marcelo Bates, Jr. was not present.4 Upholding the prosecution evidence, the trial court rendered its Judgment, dated June 4, 1999, the dispositive portion of which reads as follows: Wherefore, all the foregoing considered, the Court finds the accused Marcelo Bates GUILTY beyond reasonable doubt of the crime of murder as charged and hereby sentences him to suffer imprisonment of forty (40) years reclusion perpetua after appreciating the mitigating circumstance of voluntary surrender, and to pay the offended party the sum of P50,000.00 as indemnity and another sum of P50,000.00 as moral damages. If the accused is a detainee, the period of his imprisonment shall be credited to him in full provided he abides in writing by the terms and conditions for convicted prisoners, otherwise, for only four-fifths (4/5) thereof. SO ORDERED. Aggrieved, Marcelo Bates brought the present appeal. He raises the following: ASSIGNMENT OF ERRORS I THE TRIAL COURT GRAVELY ERRED IN NOT GIVING EXCULPATORY WEIGHT TO THE DEFENSE INTERPOSED BY ACCUSED APPELLANT. II THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE INCREDIBLE AND INCONSISTENT TESTIMONIES OF THE PROSECUTION WITNESSES. III THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY DESPITE FAILURE OF THE PROSECUTION TO PROVE ITS ATTENDANCE IN THE COMMISSION OF THE CRIME CHARGED ON THE ASSUMPTION THAT ACCUSED-APPELLANT DID NOT ACT IN SELF-DEFENSE. IV THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING PASSION AND OBFUSCATION AS A MITIGATING CIRCUMSTANCE IN FAVOR OF ACCUSED-APPELLANT ON ASSUMPTION THAT THE LATTER DID NOT ACT IN SELF-DEFENSE.5 Appellant claims self-defense. Under Article 11 of the Revised Penal Code, anyone who acts in defense of his person or rights do not incur any criminal liability provided that the following circumstances concur: First, unlawful aggression on the part of the victim; second, reasonable necessity of the means employed to prevent or repel it; and third, lack of sufficient provocation on the part of the person defending himself.6 It is a settled rule that when an accused admits killing the victim but invokes self-defense, it is incumbent upon him to prove by clear and convincing evidence that he acted in self-defense; and as the burden of the evidence is thus shifted to him, he must rely on the strength of his own evidence and not on the weakness of the prosecution.7 After scrutiny of the evidence presented, we agree with the trial court that self-defense was not established by appellant. He testified that he initially inflicted only a single hack wound on the neck of Jose causing the latter to fall

to the ground. He then went to the aid of his brother Carlito but upon finding that he was already dead, he went back to where Jose fell. Appellant admitted that at that time, Jose was in a lying position still alive but hardly moving.8Under such a situation, Jose could have hardly put up any defense, much less, make an aggressive move against appellant. Despite Jose’s condition, appellant repeatedly hacked Jose. Granting that Jose was the one who first committed unlawful aggression, appellant was no longer justified in further inflicting wounds upon Jose because at that time, the latter was already lying helpless on the ground. At that moment, unlawful aggression on the part of Jose had ceased. It is a settled rule that when unlawful aggression ceases, the defender has no longer any right to kill or wound the former aggressor, otherwise, retaliation and not self-defense is committed.9 Hence, the fact that unlawful aggression on the part of Jose already ceased when Marcelo repeatedly hacked him rules out the possibility of self-defense, whether complete or incomplete.10 Thus, the first assigned error is without merit. In his second assigned error, appellant questions the credibility of the prosecution witnesses. We have time and again, held that the issue of credibility is a question best addressed to the province of the trial court because of its unique position of having observed that elusive and incommunicable evidence of the witnesses’ deportment on the stand while testifying which opportunity is denied to the appellate courts; and absent any substantial reason which would justify the reversal of the trial court’s assessments and conclusions, the reviewing court is generally bound by the former’s findings, particularly when no significant facts and circumstances were shown to have been overlooked or disregarded which when considered would have affected the outcome of the case.11 In the present case, the trial court found the testimonies of the prosecution witnesses to be more credible than those of the defense witnesses. We find no cogent reason to depart from the findings of the trial court. Prosecution witness Edgar Fuentes testified that Jose and Carlito grappled for possession of the gun. Appellant insists that this is belied by the absence of gunpowder burns on the wound of Carlito. Appellant cites the medical findings and the testimony of Dr. Rogelio Mercado who conducted the autopsy on the bodies of Jose and Carlito, to the effect that the absence of gunpowder burns on the wound of Carlito would indicate that he and Jose did not fight for the possession of the gun. We are not convinced. The finding of the physician is not certain and conclusive as it is contradicted by no less than appellant himself when he testified, as follows: Q. After you noticed Jose Boholst with two companions went to your house of your elder brother, what did you notice if there was any? A.

This Jose Boholst dragged my elder brother from the door to the yard.

Q.

And how far were you at that time when you noticed that Jose Boholst drag your brother?

A.

At the same distance of about 20 meters from our house.

Q. other?

While you said that Jose Boholst dragged your brother Carlito Bates, were they arguing with each

A.

Yes, sir and they were grabbling(sic).

Q.

Do you know what they were arguing about?

A.

I’ve heard that they were arguing about the palm of the coconut tree.

Q. What else did you know if you notice that Carlito Bates was arguing as a matter of fact they were grabbling(sic) each other, what did you do? A.

Jose Boholst shot my elder brother.

Q. My question is, after you noticed that Jose Boholst and Carlito Bates were arguing, what if any did you do?

A.

I approached them.

Q.

Why?

A.

I was about to settle them down, but when I arrived and my brother already fell down.

Q.

What happened to your brother, why did he fell down?

A.

Because he was shot by Jose Boholst.12

Further, appellant claims that the testimony of Concepcion Boholst should not be given credence. He argues that if Concepcion really witnessed the killing of her husband, she should have seen the body of Carlito Bates who was then lying dead on the ground at the place where her husband was allegedly being hacked and stabbed. We are not persuaded. We agree with the Office of the Solicitor General that it was natural for Concepcion to fail to notice the body of Carlito when she was faced with the shocking scene of her husband being hacked and stabbed to death by appellant and his son. The Supreme Court has long recognized that different people react differently to a given type of situation, and there is no standard form of behavioral response when one is confronted with a strange, startling or frightful experience.13 In the present case, it is perfectly normal for Concepcion to be oblivious of the persons who were present at the crime scene at that time because of the frightening sight that confronted her. Appellant points out inconsistencies in the testimonies of prosecution witnesses Edgar and Concepcion. However, it is more apparent than real. Edgar and Concepcion witnessed the crime at different stages of its execution. The failure of Edgar and Concepcion to see each other at the crime scene can be gathered from their testimonies that at the time Concepcion arrived at the scene of the crime, Edgar, together with his brother Simon, already left. Granting that there was indeed an inconsistency in the testimonies of Edgar and Concepcion such is only a minor flaw that does not affect their credibility. Both did not detract from the main fact at issue and were consistent in positively identifying appellant and his son as the ones who killed Jose. Discrepancies and inconsistencies in the testimonies of witnesses referring to minor details, and not in actuality touching upon the central fact of the crime, do not impair their credibility.14 As to the failure of the prosecution to present other witnesses, the rule is settled that the prosecution is imbued with the discretion to choose whom to present as witnesses.15 The prosecution need not present each and every witness but only as may be needed to meet the quantum of proof necessary to establish the guilt of the accused beyond reasonable doubt. The testimonies of the other witnesses may, therefore, be dispensed with for being merely corroborative in nature. This Court has ruled that the non-presentation of corroborative witnesses would not constitute suppression of evidence and would not be fatal to the prosecution’s cause.16 Hence, the non-presentation of Violeta Fuentes, Simon Fuentes and Junior Comesyon as witnesses for the prosecution is not fatal to its cause nor may it be considered suppression of evidence, as their testimonies would merely corroborate the earlier testimonies of Edgar and Concepcion. However, we agree with the contention of the appellant that the trial court erred in appreciating the qualifying circumstance of treachery. The pertinent provision of Article 14 of the Revised Penal Code reads: Art. 14. Aggravating circumstances. – The following are aggravating circumstances: … 16. That the act be committed with treachery (alevosia). There is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.

Under established jurisprudence, two conditions must concur to establish treachery: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or retaliate, and (2) the means of execution was deliberately or consciously adopted.17 We have held in a line of cases that: [c]ircumstances which qualify criminal responsibility, such as treachery, cannot rest on mere conjecture, no matter how reasonable or probable such conjecture may be. They must be based on facts of unquestionable existence. Such circumstances must be proved as indubitably as the crime itself. Treachery as a qualifying circumstance should be established by proof beyond reasonable doubt.18 In the present case, the only evidence presented by the prosecution to prove that there was treachery was the testimony of Edgar Fuentes that while Jose and Carlito were grappling, he saw appellant and his son emerge from the thick banana plantation and attack Jose with the bolos they were carrying. This, alone, does not prove treachery. In People vs. Albao,19 we held that: As a rule a sudden attack by the assailant, whether frontally or from behind, is treachery, if such mode of attack was coolly and deliberately adopted by him with the purpose of depriving the victim of a chance to either fight or retreat. The rule does not apply, however, where the sudden attack was not preconceived and deliberately adopted but was just triggered by the sudden infuriation on the part of the accused because of the provocative act of the victim, or where their meeting was purely accidental. In People vs. Magaro,20 we held that: The circumstance that an attack was sudden and unexpected to the person assaulted did not constitute the element of alevosia necessary to raise homicide to murder, where it did not appear that the aggressor consciously adopted such mode of attack to facilitate the perpetration of the killing without risk to himself. Treachery cannot be appreciated if the accused did not make any preparation to kill the deceased in such manner as to insure the commission of the killing or to make it impossible or difficult for the person attacked to retaliate or defend himself. There is nothing to indicate from the testimony of Edgar that appellant and his son employed means and methods to insure that they will be able to attack Jose without risk to themselves arising from any defense that Jose might make. There is no evidence to show that they purposely remained hidden in the thick banana plantation awaiting for the opportune time to attack Jose with impunity. Hence, for failure of the prosecution to prove treachery or any other circumstance which would qualify the killing of Jose to murder, appellant should only be held liable for the crime of homicide punishable under Article 249 of the Revised Penal Code. Appellant was able to prove the mitigating circumstance of voluntary surrender, as shown by the testimony of Barangay Captain Feliseo Sano.21 Passion and obfuscation may not be properly appreciated in favor of appellant. To be considered as a mitigating circumstance, passion or obfuscation must arise from lawful sentiments and not from a spirit of lawlessness or revenge or from anger and resentment.22 In the present case, clearly, Marcelo was infuriated upon seeing his brother, Carlito, shot by Jose. However, a distinction must be made between the first time that Marcelo hacked Jose and the second time that the former hacked the latter. When Marcelo hacked Jose right after seeing the latter shoot at Carlito, and if appellant refrained from doing anything else after that, he could have validly invoked the mitigating circumstance of passion and obfuscation. But when, upon seeing his brother Carlito dead, Marcelo went back to Jose, who by then was already prostrate on the ground and hardly moving, hacking Jose again was a clear case of someone acting out of anger in the spirit of revenge. Concepcion Boholst testified that the death of her husband, Jose, caused her deep anguish and sleepless nights.23The award of moral damages in the amount of P50,000.00 is therefore justified. And pursuant to existing jurisprudence, the heirs of the deceased are entitled to civil indemnity in the amount of P50,000.00 as correctly awarded by the trial court plus P25,000.00 for temperate damages, representing the expenses they incurred for the wake and burial of the deceased.24

Under Article 249 of the Revised Penal Code, homicide is punishable by reclusion temporal. Applying the Indeterminate Sentence Law and appreciating the mitigating circumstance of voluntary surrender which is not offset by any aggravating circumstance, the maximum period of the penalty to be imposed shall be taken from the minimum of reclusion temporal which is 12 years and 1 day to 14 years and 8 months; while the minimum period shall be taken from the penalty next lower in degree which is prision mayor or 6 years and 1 day to 12 years. For the guidance of both the bench and bar, it must be mentioned that the trial court committed an error in imposing the penalty of "forty (40) years of reclusion perpetua". We reiterate our earlier pronouncements in a number of cases that while Section 21 of RA No. 7659 amended Article 27 of the Revised Penal Code by fixing the duration of reclusion perpetua from 20 years and 1 day to 40 years, reclusion perpetua remains to be an indivisible penalty in the absence of a clear legislative intent to alter its original classification as an indivisible penalty.25 Hence, in applicable cases such as the present case, "reclusion perpetua" should simply be imposed without specifying its duration. WHEREFORE, the decision of the Regional Trial Court of Ormoc City, Branch 35, is MODIFIED. Appellant Marcelo Bates is hereby found guilty beyond reasonable doubt of the crime of Homicide and is sentenced to suffer the indeterminate penalty of six (6) years and one (1) day of prision mayor as the minimum to twelve (12) years and one (1) day of reclusion temporal as the maximum; and is ordered to pay the Heirs of Jose Boholst the amounts of P50,000.00 as civil indemnity for the latter’s death, P50,000.00 for moral damages and P25,000.00 as temperate damages. SO ORDERED. Bellosillo, Mendoza, Quisumbing, and Callejo, Sr., JJ., concur.

FIRST DIVISION G.R. No. L-48875 October 21, 1982 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DELFIN MUIT, defendant-appellant. The Solicitor General for appellee. Luis General, Jr., for appellant.

MELENCIO-HERRERA, J.: Appeal from the Decision of the Court of First Instance of Camarines Sur, Branch I (Naga City), in Criminal Case No. R-7 (1847), convicting the accused Delfin Muit, a retired PC 2nd Lieutenant, of Murder, and sentencing him to suffer the penalty of reclusion perpetual for the gunning down of the victim, Rodolfo Torrero. Before said victim was shot and killed, he and the accused's wife, Rosario Muit, played as the leading man and the leading lady in a drama presentation staged in barrio Tamban, municipality of Tinamban, Camarines Sur. 1 Because of said stage play and the fact that Mrs. Muit was the Barangay Zone President while Torrero was the Zone Auditor 2 they used to meet frequently. These meetings spawned rumors around the barrio that they were having an affair, which eventually reached the ear of the accused, Delfin Muit, sometime in December of 1975. 3 In the afternoon of February 26, 1976, at around 3:00 o'clock, Rodolfo Torrero was killed in the front yard of the house of the accused in Barrio Tamban, Camarines Sur. Said victim suffered three (3) gunshot wounds, the one on his chest proving fatal. 4

The prosecution narrated the tragic incident as follows: On February 26, 1976 at about 2:45 o'clock in the afternoon, while the deceased Rodolfo Torrero, his wife Purificacion Nidea-Torrero, mother-in-law Maria Bataller, friend Benigno Gubatan and i child Francis Tresvalles, were passing by the house of accused Delfin Muit at barrio Tamban, Tinambac, Camarines Sur, on their Nay home from a picnic, the accused invited them to his house to take a rest (pp. 42, 44 tsn., Sept. 6, 1976; p. 130 tsn., Sept. 9, 1976). At that time Muit was alone as his wife and children were not around pp. 5 & 24, tsn., Oct. 24, 1977). Once the group was inside his house, accused Muit who is a retired PC lieutenant remarked that his invitation showed that he had no illfeeling against the Torreros and that he knew the latter had no ill-feeling also against him (p. 5, tsn., Sept. .1976; p. 131, tsn., Sept. 9, 1976). As they engaged in some amenities, a group of barangay members and PC authorities in !barge of the sanitation and cleanliness program on that particular lay, which was Community Day, paid them a visit, and after a short talk, said group left (p. 57, tsn., Sept. 6, 1976). The deceased Torrero conducted the group on their way out and upon his return, accused Muit requested him to take a seat (p. 58, Id). The accused then confronted Rodolfo Torrero why the latter always visits his wife even during nighttime and why he often invites her out. Torrero replied that being the barangay zone auditor, he had to confer with the accused's wife on barangay matters as the latter was the barangay zone president (pp. 135-136, tsn., Sept. 9, 1976). .The accused then asked why Torrero even gave food and money to his (accused's) children if he had no bad intention at all on his wife (id). Torrero's wife answered that they did it out of pity because there were times when they would see the accused's children in need of food and money (id). The accused, however, angrily stood up and countered, "Why should you give when your husband had also a family to support?" (p. 138, Id). To avoid any trouble, the deceased Torrero likewise stood up and said, 'If that is the way we talked about this will end to nothing, so it is better that I should leave'(p. 139, Id), and he proceeded to move out of the house (id).

When Torrero was already outside the house of the accused and while walking along the pathway, the accused followed him and on reaching the door the accused shouted, "Wait because we have not yet finished". At that instant, the accused raised his left hand towards Torrero and with his right hand, he pulled out his .45 caliber pistol and aimed it at the deceased (pp. 140-141, Id). Angrily, he fired his gun at Torrero who was just 3½ meters away, hitting the latter at the lower left side below the nape (pp. 22-24, & 44, tsn., Sept. 6 & 9, 1976; Necropsy Report, Exh. "A", Rec.). On being hit by the bullet, Torrero spun from his left to the right, with his two hands inclined to the right, his face writhing in pain, his left elbow raised parallel to his armpit and his right hand placed on his breast (pp. 65-66, tsn., Sept. 6, 1976). <äre| |anº•1àw>

Upon hearing the gunshot, witness Gubatan immediately grabbed and held the accused from behind with an embrace, and said, "Manoy Delfin, why are you like that?"(pp. 63-64, Id). But as soon as Gubatan embraced the accused from behind, a second shot was fired, this time hitting the elevated left hand of Torrero, with the bullet penetrating through the breast (pp. 11-12, & 88, Id; Necropsy Report, Exh. "A", Rec.). Consequently, Torrero fell on his knees, bent forward with face downward and body in a prone position his left elbow supporting him on his left lap while his right hand extended to the ground (p. 145, tsn., Sept. 9, 1976). Witness Gubatan on the other hand tightened his grip around the accused as he tried to wrestle with him (p. 67, tsn., Sept. 6, 1976). The wife of Torrero, who was shocked by the first shot thereupon rushed towards her fallen husband (p. 143, 145-146, tsn., Sept. 9, 1976). But the accused on seeing Mrs. Torrero rushed towards the deceased, aimed his gun at her (p. 68, tsn., Sept. 6, 1976). Fortunately, witness Gubatan quickly grabbed the right forearm of the accused that held the gun and jerked it upward so that the third shot was fired towards the sky, thus missing its target Id). Witness Gubatan then said, "Manoy Delfin, that is enough" (id). Gubatan thereafter moved the accused away and brought him near a coconut tree (id.). Mrs. Torrero, on the other hand, hugged her husband and cried for help, even as blood was oozing out from the deceased's body and mouth (pp. 67, 146-147, Id). Shortly thereafter, Torrero died (Exh. "B", Rec.). Near the coconut tree, the accused tried to free himself from the hold of Gubatan. He even pointed his gun at Gubatan and said, "Set me free Benny or I will shoot you." (p. 69, tsn., Sept. 6, 1976). When Gubatan could no longer hold the accused as the latter kept on struggling, he let him go and said, "Alright Kuya Delfin, shoot me, after all I have no fault"(pp. 69-70, Id). Slowly, the accused put down his arm, his eyes at static condition (id). He (appellant) then started to move away, and as he did, he made a short last look at his victim, after which, he continued on his way (id)... 5 The evidence discloses that the accused surrendered himself and turned in the pistol he had used to the Detachment Commander of the Tamban Police Patrol Base soon after the incident.

On the other hand, the defense presented this version: ... At about 2:45 p.m., 26 February 1976, the late Rodolfo Torrero, accompanied by his wife, Purificacion Nidea-Torrero, Benigno Gubatan, Frances Tresvalles, and his mother, Maria Bataller, had come from a picnic (it was a Sunday), when they passed by the house of Muit (in barrio Tamban, Tinambac, Camarines Sur). Muit was at the door of his house, because he was about to leave to visit his farm and had tucked his 45-caliber pistol in his front waistline, under his T-shirt. Muit invited Torrero and his companions to drop by. The invitation was accepted. Muit was alone in his house, because his wife and children were in Naga City at that time. After the usual amenities between host and guests, another group, which was conducting an inspection of the houses in the zone in connection with community activities, arrived. This second group soon left, and Muit and the group of Torrero resumed their conversation. Torrero was carrying a bolo which was slung in its scabbard and was hanging from his right shoulder. He was left-handed.

When the conversation was resumed, Torrero took offense at what Muit brought up and, in a huff, stood up and walked toward the door. Muit followed him, asking Torrero not to leave, then a shot was fired. Other shots — the number is controverted — were fired and Torrero fell. Gubatan embraced Muit from behind before or after — this is also controversial — the second shot. Torrero suffered from 3 gunshot wounds: 1) on the left arm; 2) on the chest, the fatal one, the bullet entering from the front and exiting at the back; and 3) a superficial one on the nape. These wounds were inflicted by shots fired from the .45-caliber pistol licensed in the name of Muit as a retired PC second lieutenant. The first shot, deliberately fired by Muit, hit Torrero on the left arm; the second shot, fired while the gun was still held by Muit, hit Torrero on the chest; while the third wound was obviously inflicted last, although none of the witnesses could ten the precise moment of its infliction. It was, however, the opinion of Dr. Froyalde (TSN-trial of 6 Sept. 1976, p. 23) that this wound was inflicted when Torrero was already lying on the ground. The bolo of Torrero was already drawn from its scabbard when the sketch of the scene was drawn by Patrolman Darilay, minutes after the shooting, and was also shown in the photographs taken of the body of Torrero where it fell (Exhs. 1, 1-B & 1-C). This fact was also confirmed by Gubatan (TSN-trial of 6 Sept. 1976, p. 79), and by Mrs. Torrero (TSN-trial of 9 Sept. 1976, p. 159). Muit did not get near the body of Torrero after the latter fell, but immediately proceeded to the PC detachment to surrender himself and his gun. 6 The Trial Court accorded credence to the version of the prosecution and, on July 24, 1978, rendered its Decision with the following dispositive portion:

WHEREFORE, the Court finds the accused, Delfin Muit, guilty beyond reasonable doubt of the crime of Murder for having gunned down the late Rodolfo Torrero treacherously to death (People vs. Aguilar, 86 Phil. 693), with the aggravating circumstances of evident premeditation (People vs. Causi, G. R. No. L-16498, June 29, 1963). However, the accused Delfin Muit, after the deadly incident surrendered himself including the 45 caliber pistol and its license to the detachment commander of Tamban, which act is considered a mitigating circumstance which offsets the aggravating circumstance of evident premeditation, hereby sentences him to suffer the penalty of RECLUSION PERPETUA (life) and to pay the following damages to the heirs of the victim, as itemized, to wit: (a) P12,000.00 by reason of the death of the victim, Rodolfo Torrero; (b) P5,000.00 in concept of actual and moral damages; and (c) P5,000.00 in concept of exemplary damages, and to pay the costs. 7 In this appeal, appellant maintains that the Trial Court erred:

1. In denying the accused his right to be heard by refusing to allow the accused to present a vital witness in his defense who could have proved that the principal witness for the prosecution, far from being the disinterested person that he claimed to be, was actually interested personally in prosecuting the accused; 2. In denying the accused his right to due process of law, by — 2.1 — Ignoring facts established clearly in evidence, and relying instead on baseless presumptions; 2.2 — Violating the accused's right to remain silent; and 2.3 — Being palpably biased against the accused; and

3. In rejecting the accused's plea of self-defense and accident; and in convicting the accused. 8 The appeal is without merit.

1. After trial had terminated and within the period to file memoranda, the defense moved to reopen trial "so that Jesus Evangelista may be allowed to testify and the defense could prove the bias of the said principal witness (Benigno Gubatan) for the prosecution." Jesus Evangelista was to testify on the alleged illicit relations between prosecution witness Benigno Gubatan and Mrs. Evangelista, formerly the victim's wife, who remarried after she was widowed. The Trial Court denied reopening on the ground that even assuming such liaison, it had happened in 1977 whereas Gubatan had submitted himself as government witness as early as March 4, 1976, besides the fact that it would not prove bias on the part of Gubatan, who was an eyewitness to the tragic incident, nor the culpability or non-culpability of the accused. We find no reversible error. The reopening of a case for the reception of further evidence lies within the sound discretion of the Trial Court. 9 Besides, as pointed out by said Court, it is very possible that Jesus Evangelista was merely smitten with jealousy, and the alleged illicit relationship pure conjecture. Additionally, even if Jesus Evangelista's testimony could prove bias on the part of Benigno Gubatan, the latter was not the only prosecution witness who testified as to the culpability of appellant. It should also be noted that Benigno Gubatan, was subjected to rigid cross-examination by the defense counsel, who was thereby given all the opportunity to impeach the credibility of said declarant. 10 2. Contrary to the defense posture, the accused was fully afforded his right to be heard and to present his defense. The criterion is:

... if an accused has been heard in a court of competent jurisdiction, and proceeded against under the orderly processes of law, and only punished after inquiry and investigation, upon notice to him, with an opportunity to be heard, and a judgment awarded within the authority of a constitutional law, then he has had due process of law,... 11 The appealed Decision sufficiently meets that standard. The judgment of the Trial Court is substantiated by the evidence. The contention that it had ignored and unreasonably rejected the testimonies of defense witnesses Herminigildo Bermido and Alfredo Martinez is untenable. Bermido's story that he had gone to barrio Tamban, precisely to see the accused in connection with the purchase of railroad ties; that he had witnessed the shooting incident from a distance and that he saw the deceased try to hack the accused, but that he left immediately after; that he never mentioned the incident to the authorities, nor did he approach the accused after the incident, is unnatural behavior and does not inspire belief. Having gone precisely to meet with the accused he could have shown concern at the very least. Martinez did not witness the actual incident because he was buying a cigarette but merely corroborated Bermido's story that they had gone to Barrio Tamban precisely to see the accused. A reading of their declarations, indeed, casts doubt as to their presence near the scene of the crime. Their version was unconvincing compared to the forthright testimonies of the prosecution witnesses. Besides, the appraisal by a Trial Court of the credibility of witnesses is entitled to the greatest respect in the absence of established exceptions. The defense faults the Trial Court for having violated the accused's right to remain silent in that the Court took against the latter his failure to report to the Detachment Commander at the time of his surrender his plea of self-defense. What the Trial Judge did, however, was merely to draw an inference from the accused's failure to volunteer that information, which would have been the most natural reaction. It should also be noted that the accused was neither under investigation nor interrogation so that his right against self-incrimination was never endangered. The alleged bias of the Trial Judge against the accused is without basis. The clarificatory questions propounded by him during the trial were intended to test the credibility of witnesses and to extract the truth. That the Trial Judge had ordered the accused transferred to Muntinlupa after conviction is no manifestation of bias considering that this Tribunal had upheld said action in its Resolution dated February 21, 1979. 3. The accused's plea of self-defense and accident is unavailing for being inconsistent with the environmental milieu of the case. Having invoked self-defense, he has the burden of proving it, 12 and must establish the same by clear, satisfactory and convincing evidence. 13 The defense submission is that the accused had no intent to kill and that he drew his gun in self-defense and to disarm the victim of his bolo; that the first short, which he had deliberately fired, hit the victim on his left arm; that the fatal second shot

which hit the victim on his chest, was fired accidentally as a direct consequence of Gubatan's embracing the accused from behind; while the third shot hit the victim at the nape of the neck when the victim was already prostrate on the ground.

That was not the sequence of the occurrence as established by the evidence. The victim did not try to hack the accused with his (victim's) bolo that hung from his right shoulder. There was no reason for him to physically harm the accused having already decided to leave the accused's house in order to avoid trouble. 14 He was already out of the front yard of the accused's house, about four meters more or less from its "lean to," 15 when he was shot at. The fact that the bolo was found lying on the victim's side out of its scabbard is no proof that the victim had used it. It must have dropped as the accuse(. fell to the ground after having been hit. What is established by the evidence is that the victim was hit by a bullet at the nape or back portion of the neck at the first shot. The victim spinned around from left to right involuntarily, at which point he was hit by the second shot on the left arm and on his chest. The third shot did not hit its mark as it was deflected upward by Gubatan who jerked the accused's hand skyward. Clearly, therefore, the accused had treacherously shot the victim at the back thereby disproving the element of unlawful aggression on the victim's part, which the defense seeks to establish as an essential element of self-defense.

Appellant's submission that the fatal second shot was unintentional and was the direct consequence of the act of Gubatan in embracing him from behind is also untenable. As demonstrated by Gubatan during the trial, Gubatan had embraced appellant around the chest in such a way that appellant was still free to use his right hand which was holding the gun. COURT Q How come that he was able to fire for the second time when you were holding the accused? A You noticed, sir, that in my demonstration I was holding him like this, instead of down there, so this was free, the right hand. (witness referring to the right hand) 16 Treachery has been undeniably proven. The accused was armed with a 45Treachery has been undeniably proven. The accused was armed with a .45 caliber pistol and made full use of it. The victim was first hit at the nape or back portion of the neck 17 He was fired at suddenly and unexpectedly, devoid of any opportunity to defend himself or to retaliate.

COURT Q When he was shot at, was the back of your husband towards Mr. Muit or Mr. Muit was facing your husband or your husband facing Mr. Muit? A His back was towards Mr. Muit. Q In other words, he was shot at the back? A Yes, sir. xxx xxx xxx COURT Q The first time you said he was hit on the side, will you indicate that? A Her (witness touching the lower part of the neck at the back of the interpreter). Q That was the first time he was hit there at the first Shot? A Yes, sir. 18 There should be no question then that the crime committed is Murder with the qualifying aggravating circumstance of treachery.

We agree with the defense, however, that evident premeditation as a generic aggravating circumstance, has not been adequately shown. To properly appreciate that circumstance, it is necessary to establish: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit has clung to this determination; and (3) a sufficient lapse of time between the determination and the execution to allow him to reflect. 19 As there is dearth of evidence as to when appellant first conceived of killing the deceased and that he was afforded sufficient time to reflect on the consequences of his contemplated crime before its final execution, the circumstance of evident premeditation cannot be appreciated.

On the other side of the coin, to be appreciated in favor of the accused are the mitigating circumstances of voluntary surrender, and passion and obfuscation. There can be no question that the accused was driven strongly by jealousy because of the rumors regarding the amorous relationship between his wife and the victim. The feeling of resentment resulting from rivalry in amorous relations with a woman is a powerful stimulant to jealousy and is sufficient to produce loss of reason and self-control. In other words, it is a powerful instigator of jealousy and prone to produce anger and obfuscation. 20 The crime of Murder, under Article 248 of the Revised Penal Code, is punishable by reclusion temporal in its maximum period to death. Considering the two mitigating circumstances present, without any aggravating circumstances to offset them, the penalty next lower to that prescribed is imposable, or, prision mayor in its maximum period to reclusion temporal in its medium period,

WHEREFORE, modifying the judgment appealed from, the accused Delfin Muit, is hereby sentenced to suffer the indeterminate penalty of eight (8) years of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as maximum, with the judgment being affirmed in an other respects. Costs against the accused-appellant, Delfin Muit. SO ORDERED. Teehankee (Chairman), Makasiar, Plana, Vasquez, Relova and Gutierrez, Jr., JJ., concur.

EN BANC G.R. No. 4971

September 23, 1909

THE UNITED STATES, plaintiff, vs. AUGUSTUS HICKS, defendant. Office of the Solicitor-General Harvey for plaintiff. Jose Robles Lahesa for defendant. TORRES, J.: For about five years, from September, 1902, to November, 1907, Augustus Hicks, an Afro-American, and Agustina Sola, a Christian Moro woman, illicitly lived together in the municipality of Parang, Cotabato, Moro Province, until trouble arising between them in the last-mentioned month of 1907, Agustina quitted Hick's house, and, separation from him, went to live with her brother-in-law, Luis Corrales. A few days later she contracted new relations with another negro named Wallace Current, a corporal in the Army who then went to live in the said house. On the 21st of December following, at about 7:30 p. m., Augustus Hicks together with a soldier named Lloyd Nickens called at said house, and from the sala called out to his old mistress who was in her room with Corporal Current, and after conversing with her in the Moro dialect for a few minutes, asked the corporal to come out of said room; in response thereto the corporal appeared at the door of the room, and after a short conversation, Current approached Hicks and they shook hands, when Hicks asked him the following question: "Did I not tell you to leave this woman alone?," to which Current replied: "That is all right, she told me that she did not want to live with you any longer, but if she wishes, she may quit me, and you can live with her." The accused then replied: "God damn, I have made up my mind;" and as Corporal Current saw that Hicks, when, he said this, was drawing a revolver from his trousers' pocket, he caught him by the hand, but the latter, snatching his hand roughly away, said: "Don't do that," whereupon Current jumped into the room, hiding himself behind the partition, just as Hicks drew his revolver and fired at Agustina Sola who was close by in the sala of the house. The bullet struck her in the left side of the breast; she fell to the ground, and died in a little more than an hour later. Upon hearing the shot Edward Robinson, who was also in the house, went to render assistance and wrested the weapon from the hand of the accused. The latter immediately fled from the house and gave himself up to the chief of police of the town, H. L. Martin, asking him to lock him up in jail; and, when a few minutes later a policeman came running in and reported that Hicks had fired a shot at Agustina, the said chief of police caused Hicks to be arrested. The latter, when once in jail, threw eight revolver cartridges out of the window; these were picked up by a policeman who reported the occurrence and delivered the cartridges to his chief. In view of the foregoing the provincial fiscal on the 8th of February, 1908, filed a complaint with the Court of First Instance of said province charging Augustus Hicks with the crime of murder. Proceedings were instituted, the trial court, after hearing the evidence adduced, entered judgment on the 10th of September of the same year, sentencing the accused to the penalty of death, to be executed according to the law, to indemnify the heirs of the deceased in the sum of P1,000, and to pay the costs. The case has been submitted to this court for review. The above-stated facts, which have been fully proven in the present case, constitute the crime of murder, defined and punished by article 403 of the Penal Code, in that the woman Agustina Sola met a violent death, with the qualifying circumstance of treachery (alevosia), she being suddenly and roughly attacked and unexpectedly fired upon with a 45-caliber revolver, at close, if not point blank range, while the injured woman was unarmed and unprepared, and at a time when she was listening to a conversation, in which she was concerned, between her aggressor and third person, and after usual and customary words had passed between her and her aggressor. From all of the foregoing it is logically inferred that means, manners, and forms were employed in attack that directly and specially insured the consummation of the crime without such risk to the author thereof as might have been offered by the victim who, owing to the suddenness of the attack, was doubtless unable to flee from the place where she was standing, or even escape or divert the weapon. The accused, Augustus Hicks, pleaded not guilty, but notwithstanding his exculpatory allegations which were certainly not borne out at the trial, the evidence in the case is absolutely at variance therewith and conclusively establishes,

beyond peradventure of doubt, his culpability as the sole fully convicted author of the violent and treacherous death of his former mistress, Agustina Sola. It is alleged by the accused that when he withdrew his hand from that of Current, who had seized him, he fell backward but managed to support himself on his two hands, and when he got up again the said corporal threatened him with a revolver thrust into his face; whereupon he also drew his revolver, just as Edward Robinson caught him from behind, when his revolver went off, the bullet striking the deceased. This allegation appears to be at variance with the testimony of the witnesses Wallace Current, Edward Robinson, Luis Corrales, and Lloyd Nickens in their respective declaration, especially with that of the second and third, who witnessed the actual firing of the shot by the aggressor at the deceased, as shown by the fact that Robinson immediately approached the accused in order to take his weapon away from him which he succeeded in doing after a brief struggle, whereupon the aggressor ran out of the house. Thus, the shot that struck the deceased in the breast and caused her death was not due to an accident but to a willful and premeditated act on the part of the aggressor with intent to deprive the victim of her life. In addition to the qualifying circumstance of treachery, as above referred to, the presence of other aggravating circumstances, such as premeditation, and the fact that the crime was committed in the dwelling of the deceased should be taken into consideration. The last-mentioned circumstances appears proven from the testimony of several witnesses who were examined at the trial of the case. Inasmuch as in the present case the crime has already been qualified as committed with treachery, the circumstance of premeditation should only be considered as a merely generic one. Premeditation is, however, manifest and evident by reason of the open acts executed by the accused. According to the testimony of Charles Gatchery and Eugenio R. Whited, Hicks asked leave from the former to be absent from the canteen where he was working on the morning of the day when the affray occurred, alleging that his mind was unsettled and that he feared getting into trouble. It is also shown by the fact that Whited, who was in Hicks' house about noon upon the latter's invitation, and while both where drinking gin, and while the revolver, the instrument of the crime, was lying on the table on which were also several loaded cartridges, heard the accused repeatedly say, referring to the deceased, that her time had come, adding that he would rather see her dead than in the arms of another man, and when the accused went to bed apparently very much worried, and refusing to answer when called, the witness left him. On the day after the crime the police found on a table in the cuprit's house several loaded cartridges, a bottle of oil and a piece of cloth used undoubtedly for cleaning the revolver. All the foregoing circumstances conclusively prove that the accused, deliberately and after due reflection had resolved to kill the woman who had left him for another man, and in order to accomplish his perverse intention with safety, notwithstanding the fact that he was already provided with a clean and well-prepared weapon and carried other loaded cartridges besides those already in his revolver, he entered the house, greeting everyone courteously and conversed with his victim, in what appeared to be a proper manner, disguising his intention and claiming her by his apparent repose and tranquility, doubtless in order to successfully accomplish his criminal design, behaving himself properly as he had planed to do beforehand. As against the two foregoing aggravating circumstances no mitigating circumstances is present, not even that mentioned in paragraph 7 of article 9 of the Penal Code, to wit loss of reason and self-control produced by jealousy as alleged by the defense, inasmuch as the only causes which mitigate the criminal responsibility for the loss of selfcontrol are such as originate from legitimate feelings, not those which arise from vicious, unworthy, and immoral passions. From the foregoing considerations, and as the judgment appealed from is in accordance with the law, it is our opinion that the same should be affirmed, as we do hereby affirm it with costs, provided, however, that the death penalty shall be executed according to the law in force, and that in the event of a pardon being granted, the culprit shall suffer the accessory penalties of article 53 of the Penal Code unless the same be expressly remitted in the pardon. So ordered. Arellano, C. J., Johnson, Carson, and Moreland, JJ., concur.

EN BANC G.R. No. L-7094

March 29, 1912

THE UNITED STATES, plaintiff-appellee, vs. HILARIO DE LA CRUZ, defendant-appellant. F.C. Fisher for appellant. Acting Attorney-General Harvey for appellee. CARSON, J.: The guilt of the defendant and appellant of the crime of homicide of which he was convicted in the court below is conclusively established by the evidenced of record. The trial court was of opinion that its commission was not marked by either aggravating or extenuating circumstances, and sentenced the convict to fourteen years eight months and one day of reclusion temporal, the medium degree of the penalty prescribed by the code. Burt we are of opinion that the extenuating circumstance set out in subsection 7 of article 9 should have been taken into consideration, and that the prescribed penalty should have been imposed in its minimum degree. Subsection 7 of article 9 is as follows: The following are extenuating circumstances: xxx

xxx

xxx

That of having acted upon an impulse so powerful as naturally to have produced passion and obfuscation. The evidence clearly discloses that the convict, in the heat of passion, killed the deceased, who had theretofore been his querida (concubine or lover) upon discovering her in flagrante in carnal communication with a mutual acquaintance. We think that under the circumstances the convict was entitled to have this fact taken into consideration in extenuation of his offense under the provisions of the above-cited article. This was the view taken by the Court of Spain upon a similar state of facts as set forth in its sentence of July 4, 1892, which is summarized by Viada (p. 69, in question 19, art. 9 of vol. 6) as follows: Shall he who kills a woman with whom he is living in concubinage for having caught her in her underclothes with another party and afterwards shoots himself, inflicting a serious wound, be responsible for that crime with the extenuating circumstance of having acted with violent passion and obfuscation? The Audiencia of Santiago de Cuba did not so hold and its judgment was reversed by the supreme court for the improper disregard of article 9, number 8, of the Penal Code for Cuba and Puerto Rico: "The facts held to be true by the trial court, and which were the immediate cause of the crime by producing in the accused strong emotion which impelled him to the criminal act and even to attempt his own life, were a sufficient impulse in the natural and ordinary course to produce the violent passion and obfuscation which the law regards as a special reason for extenuation, and as the judgment did not take into consideration the 8th circumstance of article 9 of the code, the Audiencia rendering it seems to have violated this legal provision." It is true that in the case of U.S. vs. Hicks (14 Phil. Rep.., 217), we held that the "causes which mitigate the criminal responsibility for the loss of self-control are such as originate from legitimate feelings, not those which arise from vicious, unworthy, and immoral passions," and declined to give the benefit of the provisions of this article to the convict in that case on the ground that the alleged causes for his loss of self-control did not "originate from legitimate feelings." But in that case we found as facts that: All the foregoing circumstances conclusively prove that the accused, deliberately and after due reflection had resolved to kill the woman who had left him for another man, and in order to accomplish his perverse intention with safety, notwithstanding the fact that he was already provided with a clean and well-prepared weapon and carried other loaded cartridges besides those already in his revolver, he entered the house, greeting everyone

courteously and conversed with his victim, in what appeared to be in a proper manner, disguising his intention and calming her by his apparent repose and tranquility, doubtless in order to successfully accomplish his criminal design, behaving himself properly as he had planned to do beforehand. In the former case the cause alleged "passion and obfuscation" of the aggressor was the convict's vexation, disappointment and deliberate anger engendered by the refusal of the woman to continue to live in illicit relations with him, which she had a perfect right to do; his reason for killing her being merely that he had elected to leave him and with his full knowledge to go and live with another man. In the present case however, the impulse upon which defendant acted and which naturally "produced passion and obfuscation" was not that the woman declined to have illicit relations with him, but the sudden revelation that she was untrue to him, and his discovery of her in flagrante in the arms of another. As said by the supreme court of Spain in the above-cited decision, this was a "sufficient impulse" in the ordinary and natural course of things to produce the passion and obfuscation which the law declares to be one of the extenuating circumstances to be taken into consideration by the court. Modified by a finding that the commission of the crime was marked with the extenuating circumstance set out in subsection 7 of article 9, and by the reduction of the penalty of fourteen years eight months and one day of reclusion temporal to twelve years and one day of reclusion temporal, the judgment of conviction and the sentence imposed by the trial court should be and are hereby affirmed, with the costs of this instance against the appellant. Arellano, C.J., Torres, Johnson and Trent, JJ., concur.

Separate Opinions MORELAND, J., concurring: I agree except as to the application of the extenuating circumstance presented by paragraph 7, article 9, Penal Code. In my judgment it is not warranted by the facts or the law.

SECOND DIVISION

G.R. No. 120881 May 19, 1998 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELPIDIO GERMINA y MALDO, accused-appellant,

MARTINEZ, J.: Charged with, tried for and thereafter convicted or murder under an information reading: That on or about the 9th day of November, 1994 in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, without any juristifiable cause, with treachery, evident premeditation and with deliberate intent to kill, did then and there willfully, unlawfully and feloniously attack and shot (sic) with a handgun one RAYMUNDO ANGELES Y VILLAMOR hitting him on the back of his body thereby inflicting upon said victim serious physical injuries which directly caused his death. Contrary to law. 1 herein accused-appellant Elpidio Germina y Maldo was sentenced by the Regional Trial Court, Branch 171, of Valenzuela, Metro Manila to suffer the penalty of Reclusion Perpetua and to pay the victim's heirs P50,000.00 as indemnity, funeral expenses amounting to P51,000.00 and costs. 2 The prosecution, based on eye witness accounts of Marcelino Almazan, 3 Gaudencio Angeles 4 and Ramil Regencia 5 (victim's brother-in-law, father and neighbor, respectively), detailed a treacherous killing of Reymundo Angeles (hereafter, Raymund.). Culled from their individual testimonies, it appears that at around 7:30 o'clock in the evening of November 9, 1994, appellant, armed with a revolver, arrived at the Angeles residence at Engracia Street, Bahay Pare, Marulas, Valenzuela looking for Raymund who was no there at that time. A heated conversation took place between Raymund's relatives (parent, brothers and sisters) and appellant concerning a quarrel that transpired earlier between appellant's brother and Raymund. Moments later, Raymund arrived. Appellant, upon spotting him, drew his gun which prompted Raymund and his relatives to scamper for safety. Hardly had Raymund gained momentum in his retreat when he stumbled on a street hump and fell on the ground face down. Appellant easily caught up with and then fired at his defenselessly positioned prey — the single bullet finding its mark on the back of Raymund's neck. Raymund was rushed to the Santisimo Rosario General Hospital for medical treatment as soon as appellant darted away from the crime scene, but to no avail. The autopsy report 6 and testimony 7 of prosecution witness Dr. Valentin Bernales of the NBI revealed that Raymund succumbed to a gunshot wound found at the back right side of his buttock measuring 0.8 x 0.7 cms., without any exit wound. Dr. Bernales clarified that as the death bullet has a downward trajectory, the victim must have been in a lying, face-down position when fired upon by the assailant. Raymund's mother, Nenita Angeles, testified that the family spent P51,700.00 for her son's funeral. 8 Appellant, for his part, did not deny having shot Raymund, but his story, 9 corroborated by his wife Nida Germina, 10 painted a picture of self-defense. Appellant's story is that he sought Raymund on the night of November 9, 1994 to verify news that the latter mauled and stabbed his mentally retarded brother, Rafael. At the Angeles residence, appellant, together with his wife Nida and Rafael, talked to Raymund's relatives about the mauling/stabbing incident. Shortly thereafter, Raymund appeared, joined the group and with a double-bladed weapon in his right hand, cursed appellant: "Putang ina mo, papatayin ko kayo!" (You son of a bitch, I will kill you all!) The relatives of raymund tried to hold him at bay but to no avail. Appellant then attempted to run away but as he found himself cornered against

a wall and when Raymund was about to strike him with the bladed weapon, he fired at Raymund. Appellant left the place immediately thereafter and voluntarily gave himself up to SPO2 Henry Marteja. The trial court was of the impression that the prosecution's story and witnesses were more credible than those of the defense. It struck down appellant's tale of self-defense — particularly of a frontal encounter with Raymund — in the face of the fact, as duly established by testimonial evidence and the autopsy report, that Raymund was shot at the back while lying face down on the ground. Treachery qualified Raymund's killing to murder for it is apparent, said the court, that appellant took advantage of the helpless condition of Raymund to insure its execution without risk to himself. Reclusion Perpetua, and not death, 11 was the penalty meted appellant due to the mitigating circumstances of voluntary surrender and passion which the trial court appreciated in this wise: The accused voluntarily giving up himself to the police authorities immediately after the commission of the offense to which the prosecution did not refute, shows act of repentance, respect for the law and his willingness to suffer and pay for the consequences of his criminal acts and a clear indication of his moral disposition favorable to his reform. The lack of proof of previous conviction or having (sic) charged of similar or of any felony, lead to the conclusion that the accused is not beyond correction or reformation. Not to mention the fact that he committed the serious crime due to the maltreatment/physical injuries inflicted by the victim on his mentally retarded brother, that triggered his anger which diminish (sic)/weaken (sic) the exercise of his will power, persuaded the Court to believe that the imposition of the penalty next lower to death is reasonable and justified. 12 Appellant comes to us praying, not for his acquittal, but that he be convicted of homicide only and thus be made to suffer a reduced penalty corresponding thereto. He claims that there is no treachery even if it be conceded that he gunned down Raymund from behind. There is merit in appellant's plea. It is true that in a host of cases, this Court has found fatal assaults from behind as earmarks of treachery, among which are "People vs. Muyano" 13 and "People vs. Apolonia" 14 cited by the Solicitor General in the appellee's brief. This should not be mistaken, however, as a hard and fast rule. The peculiarities of each case must be taken into account, carefully calibrated, and the cases of "People vs. Flores" 15 relied upon by appellant and "People vs. Nemeria" 16 are illuminative examples of a contrary finding. In "Flores," the victim Edwin and his companion Demetrio were innocently passing by a bed factory when the accused, a security guard of said establishment, apparently drunk, emerged therefrom and fired at them. Sensing danger, Edwin and Demetrio ran for their lives but accused gave chase. Accused fired another round, this time hitting Edwin at the back. This Court, in negating the existence of treachery, made this clarification: The mere fact that the victim was shot at the back while attempting to run away from his assailant would not per se qualify the crime to murder. . . . [w]ith the first gunshot, the victim has been placed on guard and has, in fact, attempted to flee. There could thus be no treachery since, prior to the attack, the victim has been forewarned of the danger to his life and has even attempted, albeit unsuccessfully, to escape. Moreover, there was absolutely no evidence to show that accused-appellant consciously and deliberately employed a specific form of attack which would specially and directly ensure its commission without impunity. (Emphasis ours) Accused therein was thus found guilty of homicide and not murder. The "Nemeria" case is no less enlightening. Accused therein attacked the victim from behind with a bolo in the presence of at least five (5) persons all situated at the same portion of the feeder road where the assault took place. This Court ruled that the killing was not qualified by treachery, saying, inter alia, that the accused "has perpetuated the crime in the presence of other people in the area who, if willing, could have lent support." As in "Flores", the accused was convicted only of homicide. This case cannot be treated differently from "Flores" and "Nemeria." Raymund was well-aware of the danger to his life since he even managed to run away — without success, however — before appellant shot him to death. Moreover, in the immediate vicinity of the crime scene, the front gate of the house of the victim, were his relatives who certainly were in a position to give the latter moral and physical support.

If murder was his bent, appellant would not have gone to the house of the victim. Moreover, if appellant had in mid a way to attack the victim to insure his death without risk arising from the latter, why would he engage his (victim) relatives in heated arguments? If his intention was ambuscade, he could have just kept his silence and waited for the proper time. Engaging the relatives in a useless debate would only put the victim on his guard. What appears to be the coup de grace to a finding of treachery in this case is the appreciation by the trial court of the mitigating circumstance of passion. Passion cannot co-exist with treachery because in passion, the offender loses his control and reason while in treachery the means employed are consciously adopted. One who loses his reason and self-control could not deliberately employ a particular means, method or form of attack in the execution of the crime. 17 We end the discussion on treachery by emphasizing that its presence under the attendant facts has not been proven as fully and convincingly as the crime itself. The doubt must, therefore, be resolved in favor of appellant. 18 But while the trial court may have erred on this issue, its findings as to the presence of the mitigating circumstances of voluntary surrender and passion, nonetheless, deserve affirmance. Voluntary surrender was correctly appreciated because it appeared spontaneous and unconditional, 19 as appellant's claim that he voluntarily gave himself up to SPO2 Marteja right after shooting Raymund remains undisputed. Passion also existed as it clearly arose from lawful sentiments or legitimate feelings. 20 The trial court's observation on this point is worth reiterating: . . . he [appellant] committed the serious crime due to the maltreatment/physical injuries inflicted by the victim on his mentally retarded brother, that triggered his anger which diminish (sic)/weaken (sic) the exercise of his power, . . . All told, appellant should be convicted of the lesser crime of Homicide which, under Article 249 of the Revised Penal Code, carries with it the penalty of reclusion temporal. Considering the presence of two (2) mitigating circumstances and the absence of any aggravating circumstance, the imposable penalty isprision mayor. 21 Applying the Indeterminate Sentence Law, the minimum of the indeterminate sentence to be meted appellant should be within the range of prison correccional, and the maximum thereof, within the range of prision mayor. WHEREFORE, premises considered, accused-appellant ELPIDIO GERMINA y MALDO is hereby found guilty beyond reasonable doubt of homicide and is thus sentenced to suffer the indeterminate penalty of six (6) years of prision correccional maximum as minimum, to ten (10) years of prision mayor medium as minimum. The Fifty Thousand Pesos (P50,000.00) indemnity and the Fifty One Thousand Seven Hundred Pesos (P51,700.00) funeral expenses awarded to the victim's heirs by the trial court are AFFIRMED. No costs. SO ORDERED. Regalado, Melo, Puno and Mendoza, JJ., concur.