Example Case on Incomplete Defense: (Art. 13)

Republic of the PhilippinesSUPREME COURT

Manila

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.

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. 1âwphi1.nêt

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 self-defense,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      xxx      xxx

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 point-blank 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.27The 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 vis-à-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 wuld 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.

Footnotes:

1 Rollo in G.R. No. 105830, pp. 125-126.

2 Criminal Case No. T-17587; "That on or about the 1st day of December, 1984, in the Municipality of Parañaque, Metro Manila, Philippines and

within the jurisdiction of this Honorable Court, the above-named with intent to kill, with treachery and with the use of an unlicensed firearm, did

then and there willfully, unlawfully and feloniously attack, assault and shot Generoso Miranda III, thereby inflicting upon his mortal gunshot

wounds which directly caused his death, contrary to law." (Rollo in G.R. No. 105830, p. 12).

3 The Amended Information reads: "That on or about the 1st day of December, 1984, in the Municipality of Parañaque, Metro Manila, Philippines

and within the jurisdiction of this Honorable Court, the above-named with intent to kill and armed with a gun, did then and there willfully,

unlawfully and feloniously attack, assault and shot with the said firearm (licensed) one Generoso Miranda III, thereby hitting the latter in the

abdomen and inflicting upon him mortal gunshot wounds which directly caused his death, contrary to law." (Rollo in G.R. No. 105830, p.

12). 1âwphi1.nêt

4 Criminal Case No. T-19350: "That on or about the 1st day of December, 1984, in the Municipality of Parañaque, Metro Manila, Philippines and

within the jurisdiction of this Honorable Court the above-named accused willfully and feloniously have in possession, custody and control a Smith

and Wesson Cal. 38 revolver with Serial No. C61898 (Yoke No. 7566) and five (5) live ammunitions and one (1) empty shell without having

procured the corresponding license or permit therefor and which the said accused used in the commission of the crime of homicide against the

person of Generoso Miranda III, contrary to law." (Rollo in G.R. No. 105830, p. 13).

5 G.R. No. L-73963.

6 Tangan v. People, 155 SCRA 435 (1987).

7 Rollo, p. 105.

8 The dispositive portion of the Regional Tria1 Court Decision dated August 16, 1989 penned by Judge xxxx reads: "WHEREFORE, premises

considered in Criminal Case No. 178587 for the crime of Homicide defined and penalized under Article 249 of the Revised Penal Code with the

attendance of the privileged mitigating circumstances of incomplete self defense and ordinary mitigating circumstances of sufficient provocation

on the part of the offended party, and passion and obfuscation. For which reason, the accused is hereby sentenced to suffer an indeterminate

prison term of two (2) months of ARRESTO MAYOR, as minimum to two (2) years and four (4) months of PRISION CORRECCIONAL, as maximum,

with all the accessories of the law.

The preventive confinement of the accused shall be credited full time in his favor. The accused is further ordered to pay to the heirs of Generoso

Miranda namely, Ruby Miranda and Maria Miranda the following:

1. P30,000.00 for and as Indemnity for causing the death of Generoso Miranda:

2. P42,000.00 for funeral burial and other related expenses;

3. P5,000.00 as attorney's fees. Costs against the accused.

With respect to Criminal Case No.19350 for Illegal Possession of Firearms and ammunitions Used in the Commission of Homicide, and finding the

accused innocent to the charge against him, he is hereby ACQUITTED." (Rollo in G.R. No. 105830, p. 14).

9 Illegal possession of firearms and homicide with the use of unlicensed firearm are generally non-bailable offenses under the 1973 Constitution

which was in force at the time of the commission of the crimes herein.

10 The dispositive portion of the CA Decision dated October 30, 1991, penned by Justice Cacdac, Jr. with Justices de Pano, Jr. and Guingona,

concurring consisting of 51-single space pages reads: "WHEREFORE, the decision appealed, from is hereby MODIFIED with respect to the

indemnity for the death of the victim Generoso Miranda in the amount of P50,000.00.

In all other respects, the appealed decision is affirmed. Costs against accused- appellant.

SO ORDERED." (Rollo in G.R. No. 105830, p. 131).

11 CA Resolution promulgated June 23, 1992 penned by Justice De Pano, Jr., with Justices Guingona and Garcia, concurring; Rollo in G.R. No.

105830, pp. 133-136.

12 Petition for Certiorari filed by the Solicitor General (Francisco Chavez); Rollo in G.R. No. 103613, pp. 105-106.

13 The several motions for extension filed by the Office of the Solicitor General were signed by Solicitor General Ramon S. Desuasido and the

other by Acting Solicitor General Eduardo G. Montenegro.

14 Comment signed by Solicitor General Montenegro dated July 22, 1992; Rollo in G.R. No. 103613, p. 407.

15 Reply to Comment dated September 28, 1992 filed by private respondent in G.R. No. 103613, Rollo, p. 412.

16 Petition for Review, pp. 1-71; Rollo in G.R, No.105830, pp. 7-77.

17 Rejoinder in G.R. No.103613 of the new Solicitor General (Raul Goco) dated November 25, 1992, p. 3; Rollo, p. 422.

18 Manifestation and Motion by the Office of the Solicitor General (Raul Goco) dated December 2, 1992, p. 3; Rollo in G.R. No. 105830, p. 264.

19 G.R. No. 127444, September 13, 2000.

20 Soriano v. Hon. Angeles, G.R. No. 109920, August 31, 2000.

21 People v. Galapin, 293 SCRA 474 (1998); People v. Timblor, 285 SCRA 64 (1998).

22 People v. Arroyo, 111 SCRA 689 (1982); People v. Capitania, 49 Phil. 475.

23 Rule 119, Section 3. Order of trial. - The trial shall proceed in the following order:

xxx      xxx      xxx

(e) However, when the accused admits the act or omission charged in the complaint or information but interposes a lawful

defense, the order of trial may be modified accordingly.

24 See People v. Navarro, 7 Phil. 713: People v. Martin, 89 Phil. 18.

25 People v. Sazon, 189 SCRA 700 (1990); Ortega v. Sandiganbayan, 170 SCRA 38 (1989); People v. Picardal, 151 SCRA 170 (1987).

26 People v. Yuman, 61 Phil. 786.

27 People v. Mahinay, G.R. No. 122485, February 1, 1999.

28 People v. Mamalayan, 280 SCRA 748 (1997); People v. Jagolingay, 280 SCRA 768 (1997); Rabajao v. CA, 280 SCRA 290 (1997); Padilla v. CA, 269

SCRA 402 (1997).

29 People v. Dizon, G.R. No. 126044-45, July 2, 1999.

30 People v. Alitagtag; G.R. Nos. 124449-51, June 29, 1999 citing People v. Quijada, 259 SCRA 191, 212-213 [1996].

31 People v. San Juan, G.R. No. 130969, February 29, 2000 citing People v. Gana, Jr., 265 SCRA 260 (1996) and US v. Burns, 41 Phil. 418.

32 Johnson v. Emerson, (1871).

33 Rollo in G.R. No. 105830, p. 126.

34 CA Decision, dated October 30, 1991, p. 49; Rollo in G.R. No. 105830, p. 129.

35 Rollo, p. 84.

37 People v. Pasco, Jr., 137 SCRA 137 (1985); People v. Rey, 172 SCRA 149 (1989).

38 U.S. v. Carrero, 9 Phil. 544.

39 Article 13. The following are mitigating circumstances:

xxx      xxx      xxx

4. that sufficient provocation or threat on the part of the offended party immediately preceded the act .

xxx      xxx      xxx

6. that of !laving acted upon an impulse so powerful as naturally to have produced passion or obfuscation.

40 People v. delos Sontos, 85 Phil. 870.

41 People v. Naboro, 73 Phil. 434.

42 See People v. Laude, 58 Phil. 933.

43 I Reyes. The Revised Penal Code, p. 272 (1998).

44 Article 249, Revised Penal Code. The penalty for homicide was not changed by R.A. No. 7659 though another law (Section 10, R.A. No. 7610)

provides that if the victim is under 12 years of age the penalty shall be one degree higher.

45 P.D.1866.

46 Pursuant to the old provisions of Section 1, P. D. 1866 and the court's ruling in People v. Quijada, 328 Phil. 505 (1996).

47 An act amending the provisions of P.D. 1866, as amended, entitled "Codifying the laws on illegal/unlawful possession, manufacture, dealing in,

acquisition or distribution of firearms, ammunitions, or explosives or instruments used in the manufacture of firearms, ammunitions or

explosives and imposing stiffer penalties for certain violations thereof and for relevant purposes." (Took effect July 6, 1997).

48 People v. Nepomuceno, Jr., G.R. No. 130800, June 29, 1999 citing People v. Bergante, 286 SCRA 629 (1998); People v. Narvasa, 298 SCRA 637

(1998); People v. Molina, 292 SCRA 742 (1998).

49 Took effect December 1, 2000.

50 See Oriental Assurance v. Solidbank, G.R. No. 139882, August 16, 2000.

51 People v. Acuram, G.R. No. 117954, April 27, 2000.

52 People v. Pedroso, G.R. No. 125128, July 19, 2000.

53 People v. Cayago, G.R. No. 128827, August 18, 1999 citing People v. Arguelles, 222 SCRA 166 (1993).

54 People v. Reynaldo Langit, G.R. Nos. 134757-58, August 4, 2000; People v. Mindanao, G.R. No. 123095, July 6, 2000.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

C.A. No. 384             February 21, 1946

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.AVELINA JAURIGUE, appellant.

Jose Ma. Recto for appellant.Assistant Solicitor General Enriquez and Solicitor Palma for appellee..

DE JOYA, J.:

Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance of Tayabas, for the crime of murder, of which Nicolas Jaurigue was acquitted, but defendant Avelina Jaurigue was found guilty of homicide and sentenced to an indeterminate penalty ranging from seven years, four months and one day of prision mayor to thirteen years, nine months and eleven days of reclusion temporal, with the accessory penalties provided by law, to indemnify the heirs of the deceased, Amando Capina, in the sum of P2,000, and to pay one-half of the costs. She was also credited with one-half of the period of preventive imprisonment suffered by her.

From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court of Appeals for Southern Luzon, and in her brief filed therein on June 10, 1944, claimed —

(1) That the lower court erred in not holding that said appellant had acted in the legitimate defense of her honor and that she should be completely absolved of all criminal responsibility;

(2) That the lower court erred in not finding in her favor the additional mitigating circumstances that (a) she did not have the intention to commit so grave a wrong as that actually committed, and that (b) she voluntarily surrendered to the agents of the authorities; and

(3) That the trial court erred in holding that the commission of the alleged offense was attended by the aggravating circumstance of having been committed in a sacred place.

The evidence adduced by the parties, at the trial in the court below, has sufficiently established the following facts:

That both the defendant and appellant Avelina Jaurigue and the deceased Amado Capina lived in the barrio of Sta. Isabel, City of San Pablo, Province of Laguna; that for sometime prior to the stabbing of the deceased by defendant and appellant, in the evening of September 20, 1942, the former had been courting the latter in vain, and that on one occasion, about one month before that fatal night, Amado Capina snatched a handkerchief belonging to her, bearing her nickname "Aveling," while it was being washed by her cousin, Josefa Tapay.

On September 13, 1942, while Avelina was feeding a dog under her house, Amado approached her and spoke to her of his love, which she flatly refused, and he thereupon suddenly embraced and kissed her and touched her breasts, on account of which Avelina, resolute and quick-tempered girl, slapped Amado, gave him fist blows and kicked him. She kept the matter to herself, until the following morning when she informed her mother about it. Since then, she armed herself with a long fan knife, whenever she went out, evidently for self-protection.

On September 15, 1942, about midnight, Amado climbed up the house of defendant and appellant, and surreptitiously entered the room where she was sleeping. He felt her forehead, evidently with the intention of abusing her. She immediately screamed for help, which awakened her parents and brought them to her side. Amado came out from where he had hidden under a bed in Avelina's room and kissed the hand of Nicolas Jaurigue, her father, asking for forgiveness; and when Avelina's mother made an attempt to beat Amado, her husband prevented her from doing so, stating that Amado probably did not realize what he was doing. Nicolas Jaurigue sent for the barrio lieutenant, Casimiro Lozada, and for Amado's parents, the following morning. Amado's parents came to the house of Nicolas Jaurigue and apologized for the misconduct of their son; and as Nicolas Jaurigue was then angry, he told them to end the conversation, as he might not be able to control himself.

In the morning of September 20, 1942, Avelina received information that Amado had been falsely boasting in the neighborhood of having taken liberties with her person and that she had even asked him to elope with her and that if he should not marry her, she would take poison; and that Avelina again received information of Amado's bragging at about 5 o'clock in the afternoon of that same day.

At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas Jaurigue went to the chapel of the Seventh Day Adventists of which he was the treasurer, in their barrio, just across the provincial road from his house, to attend religious services, and sat on the front bench facing the altar with the other officials of

the organization and the barrio lieutenant, Casimiro Lozada. Inside the chapel it was quite bright as there were electric lights.

Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival of her father, also for the purpose of attending religious services, and sat on the bench next to the last one nearest the door. Amado Capina was seated on the other side of the chapel. Upon observing the presence of Avelina Jaurigue, Amado Capina went to the bench on which Avelina was sitting and sat by her right side, and, without saying a word, Amado, with the greatest of impudence, placed his hand on the upper part of her right thigh. On observing this highly improper and offensive conduct of Amado Capina, Avelina Jaurigue, conscious of her personal dignity and honor, pulled out with her right hand the fan knife marked Exhibit B, which she had in a pocket of her dress, with the intention of punishing Amado's offending hand. Amado seized Avelina's right hand, but she quickly grabbed the knife with her left hand and stabbed Amado once at the base of the left side of the neck, inflicting upon him a wound about 4 1/2 inches deep, which was necessarily mortal. Nicolas Jaurigue, who was seated on one of the front benches, saw Amado bleeding and staggering towards the altar, and upon seeing his daughter still holding the bloody knife, he approached her and asked: "Why did you do that," and answering him Avelina said: "Father, I could not endure anymore." Amado Capina died from the wound a few minutes later. Barrio lieutenant Casimiro Lozada, who was also in the same chapel, approached Avelina and asked her why she did that, and Avelina surrendered herself, saying: "Kayo na po ang bahala sa aquin," meaning: "I hope you will take care of me," or more correctly, "I place myself at your disposal." Fearing that Amado's relatives might retaliate, barrio lieutenant Lozada advised Nicolas Jaurigue and herein defendant and appellant to go home immediately, to close their doors and windows and not to admit anybody into the house, unless accompanied by him. That father and daughter went home and locked themselves up, following instructions of the barrio lieutenant, and waited for the arrival of the municipal authorities; and when three policemen arrived in their house, at about 10 o'clock that night, and questioned them about the incident, defendant and appellant immediately surrendered the knife marked as Exhibit B, and informed said policemen briefly of what had actually happened in the chapel and of the previous acts and conduct of the deceased, as already stated above, and went with said policemen to the police headquarters, where her written statements were taken, and which were presented as a part of the evidence for the prosecution.

The high conception of womanhood that our people possess, however humble they may be, is universal. It has been entertained and has existed in all civilized communities.

A beautiful woman is said to be a jewel; a good woman, a treasure; and that a virtuous woman represents the only true nobility. And they are the future wives and mothers of the land. Such are the reasons why, in the defense of their honor, when brutally attacked, women are permitted to make use of all reasonable means available within their reach, under the circumstances. Criminologists and courts of justice have entertained and upheld this view.

On the other hand, it is the duty of every man to protect and show loyalty to womanhood, as in the days of chivalry. There is a country where women freely go out unescorted and, like the beautiful roses in their public gardens, they always receive the protection of all. That country is Switzerland.

In the language of Viada, aside from the right to life on which rests the legitimate defense of our own person, we have the right to property acquired by us, and the right to honor which is not the least prized of our patrimony (1 Viada, Codigo Penal, 5th ed., pp. 172, 173).

The attempt to rape a woman constitutes an unlawful aggression sufficient to put her in a state of legitimate defense, inasmuch as a woman's honor cannot but be esteemed as a right as precious, if not more, than her very existence; and it is evident that a woman who, thus imperiled, wounds, nay kills the offender, should be afforded exemption from criminal liability, since such killing cannot be considered a crime from the moment it became the only means left for her to protect her honor from so great an outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague and Alcansare, 62 Phil., 504). .

As long as there is actual danger of being raped, a woman is justified in killing her aggressor, in the defense of her honor. Thus, where the deceased grabbed the defendant in a dark night at about 9 o'clock, in an isolated barrio trail, holding her

firmly from behind, without warning and without revealing his identity, and, in the struggle that followed, touched her private parts, and that she was unable to free herself by means of her strength alone, she was considered justified in making use of a pocket knife in repelling what she believed to be an attack upon her honor, and which ended in his death, since she had no other means of defending herself, and consequently exempt from all criminal liability (People vs. De la Cruz, 16 Phil., 344).

And a woman, in defense of her honor, was perfectly justified in inflicting wounds on her assailant with a bolo which she happened to be carrying at the time, even though her cry for assistance might have been heard by people nearby, when the deceased tried to assault her in a dark and isolated place, while she was going from her house to a certain tienda, for the purpose of making purchases (United States vs. Santa Ana and Ramos, 22 Phil., 249).

In the case, however, in which a sleeping woman was awakened at night by someone touching her arm, and, believing that some person was attempting to abuse her, she asked who the intruder was and receiving no reply, attacked and killed the said person with a pocket knife, it was held that, notwithstanding the woman's belief in the supposed attempt, it was not sufficient provocation or aggression to justify her completely in using deadly weapon. Although she actually believed it to be the beginning of an attempt against her, she was not completely warranted in making such a deadly assault, as the injured person, who turned out to be her own brother-in-law returning home with his wife, did not do any other act which could be considered as an attempt against her honor (United States vs. Apego, 23 Phil., 391)..

In the instant case, if defendant and appellant had killed Amado Capina, when the latter climbed up her house late at night on September 15, 1942, and surreptitiously entered her bedroom, undoubtedly for the purpose of raping her, as indicated by his previous acts and conduct, instead of merely shouting for help, she could have been perfectly justified in killing him, as shown by the authorities cited above..

According to the facts established by the evidence and found by the learned trial court in this case, when the deceased sat by the side of defendant and appellant on the same bench, near the door of the barrio chapel and placed his hand on the upper portion of her right thigh, without her consent, the said chapel was lighted with electric lights, and there were already several people, about ten of them, inside the chapel, including her own father and the barrio lieutenant and other dignitaries of the organization; and under the circumstances, there was and there could be no possibility of her being raped. And when she gave Amado Capina a thrust at the base of the left side of his neck, inflicting upon him a mortal wound 4 1/2 inches deep, causing his death a few moments later, the means employed by her in the defense of her honor was evidently excessive; and under the facts and circumstances of the case, she cannot be legally declared completely exempt from criminal liability..

But the fact that defendant and appellant immediately and voluntarily and unconditionally surrendered to the barrio lieutenant in said chapel, admitting having stabbed the deceased, immediately after the incident, and agreed to go to her house shortly thereafter and to remain there subject to the order of the said barrio lieutenant, an agent of the authorities (United States vs. Fortaleza, 12 Phil., 472); and the further fact that she had acted in the immediate vindication of a grave offense committed against her a few moments before, and upon such provocation as to produce passion and obfuscation, or temporary loss of reason and self-control, should be considered as mitigating circumstances in her favor (People vs. Parana, 64 Phil., 331; People vs. Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86).

Defendant and appellant further claims that she had not intended to kill the deceased but merely wanted to punish his offending hand with her knife, as shown by the fact that she inflicted upon him only one single wound. And this is another mitigating circumstance which should be considered in her favor (United States vs. Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil., 123).

The claim of the prosecution, sustained by the learned trial court, that the offense was committed by the defendant and appellant, with the aggravating circumstance that the killing was done in a place dedicated to religious worship, cannot be legally sustained; as there is no evidence to show that the defendant and appellant had murder in her heart when she entered the chapel that fatal night. Avelina is not a criminal by nature. She happened to kill under the greatest provocation. She is a God-fearing young woman, typical of our country girls, who still possess the

consolation of religious hope in a world where so many others have hopelessly lost the faith of their elders and now drifting away they know not where.

The questions raised in the second and third assignments of error appear, therefore, to be well taken; and so is the first assignment of error to a certain degree.

In the mind of the court, there is not the least doubt that, in stabbing to death the deceased Amado Capina, in the manner and form and under the circumstances above indicated, the defendant and appellant committed the crime of homicide, with no aggravating circumstance whatsoever, but with at least three mitigating circumstances of a qualified character to be considered in her favor; and, in accordance with the provisions of article 69 of the Revised Penal Code, she is entitled to a reduction by one or two degrees in the penalty to be imposed upon her. And considering the circumstances of the instant case, the defendant and appellant should be accorded the most liberal consideration possible under the law (United States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil., 472; People vs. Mercado, 43 Phil., 950)..

The law prescribes the penalty of reclusion temporal for the crime of homicide; and if it should be reduced by two degrees, the penalty to be imposed in the instant case is that of prision correccional; and pursuant to the provisions of section 1 of Act No. 4103 of the Philippine Legislature, known as the Indeterminate Sentence Law, herein defendant and appellant should be sentenced to an indeterminate penalty ranging from arresto mayor in its medium degree, to prision correccional in its medium degree. Consequently, with the modification of judgment appealed from, defendant and appellant Avelina Jaurigue is hereby sentenced to an indeterminate penalty ranging from two months and one day of arresto mayor, as minimum, to two years, four months, and one day ofprision correccional, as maximum, with the accessory penalties prescribed by law, to indemnify the heirs of the deceased Amado Capina, in the sum of P2,000, and to suffer the corresponding subsidiary imprisonment, not to exceed 1/3 of the principal penalty, in case of insolvency, and to pay the costs. Defendant and appellant should also be given the benefit of 1/2 of her preventive imprisonment, and the knife marked Exhibit B ordered confiscated. So ordered..

Ozaeta, Perfecto, and Bengzon, JJ., concur.

Separate Opinions

HILADO, J., concurring:

In past dissenting and concurring opinions my view regarding the validity or nullity of judicial proceedings in the Japanese-sponsored courts which functioned in the Philippines during the Japanese occupation has been consistent. I am not abandoning it. But in deference to the majority who sustain the opposite view, and because no party litigant herein has raised the question, I have taken part in the consideration of this case on the merits. And, voting on the merits, I concur in the foregoing decision penned by Justice De Joya.

Example Case of Incomplete Self-defense: (Art. 13)

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-58506 November 19, 1982 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. NILO DE JESUS and

WILFREDO YALONG, defendants-appellants.

The Solicitor General for plaintiff-appellee. chanrobles virtual law library

Jacinto D. Jimenez & Emilio G. Pineda for defendants-appellants.

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DE CASTRO, J.: chanrobles virtual law library

In an information filed with the Court of First Instance of Quezon City, Nilo de Jesus and Wilfredo Yalong were charged with Murder. One Peter Doe alias Pepito, alias Pitong was also charged in the same information, but has so far not been brought to trial. Only Nilo de Jesus and Wilfredo Yalong were tried, and thereafter, convicted and sentenced to reclusion perpetual, and to indemnify the heirs of the deceased in the sum of P15,560.00, with the accessory penalties, and to pay proportionate costs. chanroblesvirtualawlibrary chanrobles virtual law

library

Both de Jesus and Yalong appealed, firing separate briefs, but the Solicitor General filed only one consolidated brief for the appellee. chanroblesvirtualawlibrarychanrobles virtual law library

Only one eye-witness, Fernando de los Santos, testified for the prosecution, and together with the examining physician, Dr. Nieto Salvador of the NBI, established the following facts, as quoted from the People's brief: chanrobles virtual law library

In the afternoon of May 21, 1978, Fernando de los Santos was taking a nap in their house at Aspere Avenue, Tatalon Estate, Quezon City. At about 2:00 o'clock that afternoon, he was awakened by the shout of a small boy who informed him that his father, Feliciano de los Santos, was engaged in a quarrel. Forthwith, he proceeded to the scene of the quarrel at nearby Araneta Avenue. Upon arriving thereat he saw Yalong in the act of aiming a gun at his father. Instinctively, Fernando shouted at his father to run, but the latter was fired at by Yalong before he could do so. Then, while Fernando's father was still on his feet, appellant de Jesus suddenly grabbed the gun from Yalong and himself fired at the victim once, causing the latter to fall as he was about to run away (pp. 5-9, 13-16, tsn, Dec. 28, 1978; pp. 5-12, April 30, 1979). chanroblesvirtualawlibrary chanrobles virtual law library

Thereafter, both appellants ran away; while Fernando immediately went home to look for his brother, Pat. Narciso de los Santos. When the two brothers returned to the crime scene, Fernando could no longer feel the pulse of his father. Forthwith, Narciso left to hunt for the killers; while Fernando reported the incident to the police authorities, to whom he gave the names of the suspects and a verbal account of the incident (pp. 9-11, 21-23, tsn, Dec. 28, 1978; pp. 18" 23-25, 42-45, tsn, April 30, 1979).chanroblesvirtualawlibrary chanrobles virtual law library

Meanwhile, a cousin of the two brothers, Baltazar de los Santos, brought the victim to the hospital, but the latter was pronounced dead upon arrival. The cadaver was then autopsied. Dr. Nieto Salvador, NBI medico-legal officer, conducted the post mortem examination and issued a necropsy report (Exhibit "B"). His findings as to the house of death of the victim was "hemorrhage, acute, severe, secondary to gunshot wound, chest." According to the doctor, the victim suffered two bullet wounds, one on the left

side of the chest perforating the atrium of the heart, and the other on the right hand. The bullet (Exhibit "D") which pierced the chest, was found by the doctor imbedded at the back right side of the body (pp. 12-13, 17, tsn, April 30, 1979; pp. 20-29, tsn, May 18, 1979). This was the fatal bullet. chanroblesvirtualawlibrary chanrobles virtual law library

Although the assailants have been Identified, prosecution of the case could not proceed because the suspects went into hiding to escape arrest. In the case of appellant de Jesus, he stayed for one week in the house of a friend in the Tatalon Estate, then proceeded to the province of Isabela. He was arrested by the P.C. only on October 14, 1978 while in Pangasinan buying smoked fish (pp. 22-26, tsn, Jan. 4, 1980). When de Jesus was brought to Camp Crame in Quezon City, he was confronted by Fernando who readily Identified him as one of the killers of his father, and then gave a written statement before Det. Fluto Casayuran (Exhibit "A") wherein he narrated his account of the incident of May 21, 1978 (pp. 24-29, tsn, Aug. 3, 1979). For his part, appellant Yalong proceeded to hide at his uncle's house in Lardizabal St., Sampaloc, Manila for about three weeks. From there, he proceeded to Quezon Province, then to Iloilo and Zamboanga before returning to Lardizabal Street, where he was arrested on February 22, 1979. After being apprised of his constitutional right, appellant Yalong voluntarily gave an extrajudicial statement (Exhibit "H") wherein he implicated his co- accused Nilo de Jesus for the death of the victim on May 21, 1978 (pp. 8- 11, 15-17, tsn, May 20, 1980). 1

The decision was rendered by Judge Jaime Lantin, after the case was heard wholly by Judge Sergio Apostol who was later appointed City Fiscal. For a fair and just judgment to De arrived at, the defense version should likewise be set forth herein, and as stated in the decision appealed from, is, for appellant de Jesus, as follows: chanrobles virtual law library

Accused Nilo de Jesus denied the imputation. His defense is to the effect that on the afternoon in question he went to the house of Feliciano de los Santos looking for one Joe (Pitong) Napucao who had invited him (Nilo) to join Joe in his work; that he did not find Napucao in the house; that he was invited by Feliciano de los Santos to join other persons having drinks; that thereafter he saw Feliciano de los Santos sleeping on a table drunk; that when he bade goodbye as he wanted to go home, he was asked by one Lito to stay and drink with them until Feliciano de los Santos would wake up; that when he insisted that he should leave, Lito got mad and tried to box him; that when Feliciano de los Santos woke up, he punched him, but he was able to evade the blow; that they were pacified, after which he went home; that after taking his lunch, he went to a nearby store to buy cigarettes; that after a while Napucao arrived and asked him what happened between him and Feliciano de los Santos; that Wilfredo Yalong arrived; that after a few minutes, Feliciano de los Santos drunk, also arrived, holding a dagger and began to attack him (Nilo de Jesus); that Napucao held Feliciano de los Santos; that the latter extricating himself from the hold, proceeded to attack him, but since he was protected by a palo china wood, Feliciano de los Santos instead stabbed Yalong with the dagger; that he heard two shots from the gun held by Wilfedo Yalong, that Feliciano de los Santos ran away only to fall down on his tracks; that since Wilfredo Yalong and Napucao already left, he was told by people who had gathered at the scene that he should also leave for he might be suspected of having shot the victim; that he stayed in a friend's house at Tatalon, and after a week he left for Isabela and stayed there for four months; that in Pangasinan, he was arrested by PC soldiers and brought to Camp Crame; and that Fernando de los Santos was not there to witness the shooting incident. 2 chanrobles virtual law library

For appellant Yalong, We also quote from the appealed decision the following. chanroblesvirtualawlibrary chanrobles virtual law library

On the other hand, accused Wilfredo Yalong interposed self-defense. His defense is that in the afternoon in question, after coming from a baptismal party, he dropped by the store of Remy to buy cigarettes and pop-cola; that Feliciano de los Santos (Mang Siano) arrived armed with a bayonet, shouting, "putang ina mo Nilo (referring to accused Nilo de Jesus), bakit mo ako pinalo ng bote;" that Nilo de Jesus answered, "putang ina mo Siano, bakit mo naman ako sinuntok;" that Feliciano de los Santos lunged at Nilo de Jesus with the bayonet; that one Pitong intervened and tried to pacify Feliciano de los Santos, saying "pare that is enough. Nilo has done nothing wrong to you;" that Feliciano de los Santos again tried to attack, but Pitong blocked his way and hold him; that extricating himself from Pitong, Feliciano de los Santos ran towards him (accused), and tried to stab him; that he pulled out his gun from his waist and fired two shots at Feliciano de los Santos; that Feliciano de los Santos ran and fell to the ground; that he went home, then to the house of his uncle at Lardizabal St., Sampaloc, Manila, and after staying there for three weeks he went to Quezon Province, to Iloilo and to Zamboanga; that he hid because the son of the deceased, Pat. Narciso de los Santos of the Quezon City Police, was looking for him; that thereafter, he was arrested at Lardizabal St., Sampaloc, by Pat. Gurat; that he was brought to a bodega and then taken to the office of the CID at Sikatuna, Quezon City; that he was investigated and gave his written statement; that his statement given to the authorities was not true, as he only impleaded accused Nilo de Jesus out of spite because the latter was pinning him down; that two days after the incident, his friend Rodolfo Pornales, now deceased, got back the gun from him. 3

What would instantly strike attention is the variance in the testimony of the lone state eye-witness, on one hand, and the two appellants on the other, as to who fired the fatal shot. According to the state witness Fernando de los Santos, it was appellant de

Jesus who fired the fatal shot, when he grabbed the gun from appellant Yalong after the latter had shot the deceased but hitting him only on the right hand. Both appellants are one in stating that only Yalong fired the two shots that hit the deceased on two different parts of the body. chanroblesvirtualawlibrary chanrobles virtual law library

The Court finds more convincing the testimony of the appellants that only Yalong fired the two shots that hit the deceased, one fatally on the breast. Yalong admitted this to be the fact. De Jesus' testimony serves to corroborate Yalong's admission which, from its damaging effect on the declarant Yalong, makes it very reliable and therefore convincing.chanroblesvirtualawlibrary chanrobles virtual law library

The foregoing observation places the whole testimony of state witness de los Santos in grave doubt. The motive for his committing the falsehood is manifest. It was de Jesus who had a quarrel with his deceased father and struck the latter with a bottle on the head moments before the shooting. De Jesus had to be made a co-author in fact, the main culprit, of the killing. Hence, the testimony of de lo Santos clearly fabricated that de Jesus grabbed the gun from Yalong after the latter had fired the first shot, and then he (de Jesus) fired the second shot that was fatal. chanroblesvirtualawlibrary chanrobles virtual law library

The fabricated nature of the testimony of state witness de los Santos becomes more evident in the light of the testimony of Dr. Salvador, that the muzzle of the gun could have been only five inches to the body of the deceased. A better marksman that the trial court found de Jesus to be - without any evidence, to be sure - was, therefore, not needed at all, again contrary to the trial court's speculation on this regard. chanroblesvirtualawlibrary chanrobles virtual law library

The facts already adverted to make it very doubtful whether the lone eye- witness for the prosecution saw what he professed to have seen of the shooting incident. Appellant de Jesus positively stated he was not at the scene. We are inclined to agree with him. If de los Santos saw the incident the way he so testified in court, this witness, son of the deceased, should have rushed to the latter's rescue, and should have himself brought the stricken man to the hospital. With the serious condition of his father, he should not have left him, not for a single moment, from the time he saw his father fall until he was being brought to the hospital. Strangely, however, it was a cousin who brought the gravely wounded man to the hospital. Of course, this fact could not be altered so as to make it appear that it was the son Fernando, who brought the deceased to the hospital, The records of the hospital would reveal the lie. This fact again clearly demonstrates that the state witness F. de los Santos, son of the deceased, was not at the scene. chanroblesvirtualawlibrary chanrobles virtual law library

What is also strange is that no police blotter was presented in court to show that the state witness saw who the culprits were. His pretense that he saw them, and knew who they were, was precisely disputed seriously by the fact that it took him after five months to give his statement. His claim that soon after the incident he told the police who the culprits were could not, therefore, be believed if this fact does not appear in the police blotter as it should have been entered therein. chanroblesvirtualawlibrary chanrobles virtual law library

If what has been shown thus far is not sufficient to discredit F. de los Santos as a supposed eye-witness, We find not without merit Yalong's claim, through counsel, that the testimony of the aforenamed witness is "riddled with inherent incredibilities and unexplainable contradictions", listing the following circumstances to prove the claim: chanrobles

virtual law library

l. In court, he testified that the child whose shout awakened him said that his father was being ganged upon. (T.s.n., p. 6, Hearing of December 6, 1978.) This is contradicted by the statement he gave to the police, in which he said the child shouted that his father was quarreling with someone. (Exhibit 1-G.) chanrobles virtual law library

2. Fernando de los Santos claims he saw how his father was killed. Yet, despite the fact that his own brother Narciso was a member of the Quezon City police force, it was only on October 19, 1978, or five (5) months later that he gave a statement to the police. (Exhibit 1.) The only explanation for this undue delay is that Fernando de los Santos decided to lie that he saw the shooting of his father, because there was no other witness.chanroblesvirtualawlibrary chanrobles virtual law library

3. He repeatedly swore falsely that he gave a written statement to the police the very afternoon of May 21, 1978. (t.s.n., p. 59, Hearing of April 30, 1979; t.s.n., p. 9, Hearing of August 3, 1979.) He even Identified the statement dated October 19, 1978 (Exhibit 1) as the very statement he gave. (T.s.n., pp. 5 and 10, Hearing of August 3, 1979). When finally confronted with his written statement, he admitted that he gave a written statement only after five (5) months later. (T.s.n., pp. 9-10, Hearing of August 3,1979.) chanrobles virtual law library

4. Fernando de los Santos claimed that he waited until after the arrest of both defendants-appellants before giving his written statement. (T.s.n., pp. 25-26, Hearing of August 3, 1979.) While his written statement was taken on October 19, 1978, defendant-appellant Yalong was not arrested until - February, 22, 1980, or More than a year later. (T.s.n., p. 36. Hearing of October 17, 1979.) This unmasks another falsehood in his testimony.chanroblesvirtualawlibrary chanrobles virtual law library

5. Earlier, he testified that, when he left the scene of shooting, there were no people ,here. (T.s.n.. p. 27. Hearing on December 28, 1978.) Later, he contradicted himself by saying there were many people there. (T.s.n p. 41, Hearing of August 3, 1979.)  chanrobles virtual law library

6. In his written statement, he was fifteen (15) meters away from where his father was shot. (Exhibits A-4 and I-F.) In court, he contradicted himself by saying he was ten (10) meters away. (T.s.n., p. 16, hearing of December 28, 1978; t.s.n., p. 10, Hearing of April 30, 1979).chanroblesvirtualawlibrary chanrobles virtual law library

7. First, he testified that when his father pitched forward, he did not approach his father to see if his father was dead. He went home first. It was only upon his return that he felt the pulse of his father to check if his father was still alive. (T.s.n., pp. 22-23, Hearing of December 28, 1978.) Later, he contradicted himself by saying he approached his father and felt the pulse of his father before he went home. (T.s.n., p. 45, Hearing of August 3, 1979.) chanrobles virtual law library

8. He claims that it took a full fifteen (15) minutes from the time his father was shot in the chest before his father slumped down. (T.s.n., p. 21, Hearing of December 28, 1979.) During all that time, he did not even lift a finger 't ) rush his father to a, nearby hospital like the UERM Memorial Medical Center. This is the first step which any son who is present would have done under the circumstances. Yet, if we are to believe Fernando de los Santos, he went home first. Upon his return that was the only time he checked if his father was still alive. chanroblesvirtualawlibrary chanrobles virtual law library

9. Defendant-appellant de Jesus categorically testified that Fernando de los Santos was not present when the shooting happened. (T.s.n., pp. 26-27, Hearing of January 4, 1980.) 4

Carefully evaluating the foregoing circumstances, as affecting the credibility of the testimony given by the only supposed eye-witness for the prosecution, We come to the conclusion that said witness did not see how the actual shooting took place, much less the incidents immediately preceding. He was not at the scene when, as testified by Yalong, with the corroboration of an unbiased witness, Mrs. Anita Bernales, and appellant de Jesus himself, the deceased directed his attack with a dagger to appellant Yalong who, thereupon, drew a gun from his waist and fired twice at the deceased. The testimony of de los Santos that it was appellant de Jesus that fired the second fatal shot after grabbing the gun from Yalong was evidently fabricated in an attempt to purvey a more credible story, as the prosecution would like to have the court believe in. Thus, as it was with de Jesus that the deceased had a previous quarrel, the former is the one with motive to harm the latter. It is also de Jesus not Yalong, the family of the deceased wanted punished for the killing. As the evidence shows, Yalong had not even seen the deceased on that fatal day except on the very time of the shooting, and at the place where the two met only, by coincidence. chanroblesvirtualawlibrary chanrobles virtual law library

What is plain from the credible evidence on record is that de Jesus had no participation in the shooting. Yalong admitted to be the only one who fired his gun at the deceased twice. From Yalong's testimony, credibly corroborated by an impartial witness, he acted to defend himself because the decease tried to stab him. No evidence was presented by the prosecution to rebut this testimonial evidence. The direct testimony of its only supposed eye-witness which is of doubtful veracity as explained above, cannot serve to discredit the version of the defense. At this point, the trial court did not give credit to the claim that the deceased was armed with a dagger or bayonet. We find sufficient credible evidence as to the attack with a dagger against Yalong, such as the testimony of the two appellants and a disinterested witness mentioned above. If the weapon was not presented, it is because it had gone into the possession of the police who, for obvious reasons, would not present it during the trial, through the prosecuting officer.chanroblesvirtualawlibrary chanrobles virtual law library

With the deceased shown to the aggressor as against Yalong, the reasonableness of the means used by Yalong to repel the aggression may however, not be assessed in his favor. The deceased was in a state of drunkenness, so he was not as dangerous as he would if he had been sober. His aim proved faulty and easily evaded as shown by the fact that Yalong was not hit by the stab attempts-blows directed against him. At best, We can grant incomplete self-defense in his favor, the necessity of the means he used to repel the aggression not appearing to Us clearly, reasonable. chanroblesvirtualawlibrary chanrobles virtual law library

With respect to de Jesus. as already intimated above, he fired no shot at the deceased. His co-accused owned sole authorship of the shooting. His liability, therefore, would have to be based on a finding of conspiracy, between him and appellant Yalong. chanroblesvirtualawlibrary chanrobles virtual law library

In finding conspiracy against both appellants, the trial court said: chanrobles virtual law library

The authors of the crime are the accused Nilo de Jesus and Wilfredo Yalong. Accused Yalong and de Jesus conspired together in killing the deceased. They were motivated by the same criminal purpose and design. They were present at the scene, confronting the deceased. After accused Yalong fired the first shot, which wounded the deceased on the right hand, accused Nilo de Jesus continued the aggression; he got the gun from

accused Yalong and fired the fatal shot at the victim. Accused Yalong was a poor marksman. When he gave the gun to accused de Jesus, he knew that the latter could do the task better. On the other hand, accused de Jesus, confident of his ability, went to execute the decisive finishing stroke. After their job was accomplished, with the victim prostrate on the ground, the two accused together escaped from the scene and went into hiding. In conspiracy, the act of one conspirator is the act of the other, each being responsible for the other's act in furtherance of their common objective. 5 chanrobles virtual law library

With Our assessment of the testimony of the only supposed eye-witness of the prosecution, as already indicated above, the trial court's finding of the existence of conspiracy would be left without its main basis the participation of de Jesus in the shooting. It is also undisputed that the presence of both appellants at the store where the shooting took place was not prearranged but purely coincidental. 6 Neither was there any evidence to show that they knew the deceased would go to the store and there shoot him. If there was previous agreement to kill or harm the deceased, appellants would not have chosen the store where the people come and go to perpetrate the heinous offense. chanroblesvirtualawlibrary chanrobles virtual law library

The fact that both appellants left together would not necessarily prove conspiracy since they live in the same vicinity. 7 Only Yalong was armed. If de Jesus was in conspiracy with him, de Jesus should have also armed himself with some weapon. Yalong had absolutely no motive to join de Jesus in a common desire to harm, much less kill the deceased. chanroblesvirtualawlibrary chanrobles virtual law library

The trial court also cited the fact that they went later into hiding to prove conspiracy and guilt as well. The explanation given by appellants for having gone into hiding is to Us sufficiently satisfactory. The deceased had a son who is a member of the police force of Quezon City. He was heard by the mother of appellant Yalong to have said that if he (Policeman Narciso de los Santos) would see said appellant, he would shoot him. 8 It was his mother who then advised him to go to stay with his in-laws. 9For similar reason de Jesus also went to Isabela. He learned from his wife that Policeman de los Santos had gone to their house looking for him saying that if he could not see him, Pat. de los Santos will kill even his children. It was his wife who advised him to leave Tatalon in the meantime. chanroblesvirtualawlibrary chanrobles virtual law library

The liability of de Jesus on ground of conspiracy has therefore not been established beyond doubt, as it should be as the guilt itself. His innocence was also shown by his uncontradicted testimony that even after Yalong had left the scene, he stayed intending to lend a helping hand to the fallen man whom he called "Tiyo Siano" to be brought to the hospital. But people around advised him to go away as he may be suspected as a co-author of the shooting. He went away to the house of a friend in Tatalon. On ground of reasonable doubt, We find the guilt of de Jesus, therefore, not to have been duly established to make him liable for the crime charged. chanroblesvirtualawlibrary chanrobles virtual law library

We do not agree with the finding of the trial court that the shooting of the deceased was attended with the qualifying circumstance of treachery. To constitute treachery, the method, form or means adopted in killing the victim must be consciously and deliberately chosen to insure its execution without any risk to the offender arising from the defense which the victim might make. 10There is nothing in the records to indicate that Yalong reflected on the means or method to insure the killing of the deceased or remove or diminish any risk to himself that might arise from the defense that the deceased might make. Yalong's decision to shoot the deceased appeared to be sudden, brought about by the latter's unlawful aggression to stab the former by a dagger. The killing of the deceased was on the spur of the moment; no time was left for the accused to deliberate on his mode of attack or to prepare for the manner by which he could kill the deceased with the full assurance that it would be impossible or hard for the latter to defend himself or retaliate. Had Yalong wanted to attack the deceased treacherously, he could have shot the deceased at a farther and safer distance and not at a close range (at least 5 inches from the muzzle of the gun to the surface of the skin), as testified by Dr. Nieto Salvador, 11 to insure himself against the risk from any possible defense the deceased might make. chanroblesvirtualawlibrary chanrobles virtual law library

In the absence of treachery as a qualifying circumstance, the crime committed is only homicide and not murder as charged. We have stated earlier that Yalong is entitled to the benefit of the special mitigating circumstance of incomplete self-defense 12 inasmuch as there was unlawful aggression on the part of the deceased without any provocation coming from Yalong, but it was not proven that the means employed by the latter was reasonably necessary. Considering this foregoing circumstance, and in applying the provision of Article 69 of the Revised Penal Code, the penalty one degree lower than that of reclusion temporal prescribed for the crime of homicide must be imposed, which is prision mayor. On those grounds, there should be imposed upon Yalong the penalty of prision mayor in its minimum period. 13

 chanrobles virtual law library

WHEREFORE, the judgment of conviction as to appellant Nilo de Jesus is reversed and the latter is hereby acquitted. His immediate release is ordered unless otherwise, detained for another offense.chanroblesvirtualawlibrary chanrobles virtual law library

With respect to appellant Wilfredo Yalong, the judgment is modified. He is hereby, found guilty of homicide and sentenced to suffer the penalty of four years of prision

correccional to eight years of prision mayor, to indemnify the heirs of deceased Feliciano de los Santos in the sum of P12,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs. Appellant Yalong should be credited with the full time of his preventive imprisonment upon a showing that he agreed to abide by the same disciplinary rules imposed upon convicted prisoners, otherwise, he shall be credited with four-fifths (4/5) of the time of such preventive imprisonment. 14

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SO ORDERED.

Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos and Escolin, JJ., concur.chanroblesvirtualawlibrary chanrobles virtual law library

Aquino, J., took no part.

Endnotes:

1 pp. 3-6, Brief for Appellee; pp. 139-142, Rollo. chanrobles virtual law library

2 pp, 3-4, Decision; pp. 5-6, Rollo. chanrobles virtual law library

3 pp. 4-5, Decision; pp. 6-7, Rollo,

4 pp. 7-9, Brief for Appellee: pp. 48-50, Rollo. chanrobles virtual law library

5 p. 3, Decision: p. 5 Rollo. chanrobles virtual law library

6 See People vs. Dealon, 99 SCRA 422, 463. chanrobles virtual law library

7 See People vs. Trinidad, 20 SCRA 549. chanrobles virtual law library

8 p. 23, tsn., June 20, 1980. chanrobles virtual law library

9 Id.

10 Article 14, paragraph 16, Revised Penal Code; People vs. Ruiz, 110 SCRA 155; People vs. Talay, 101 SCRA 332; People vs. Satorre, 74 SCRA 101; People vs. Tizon, 66 SCRA 372; People vs.chanrobles virtual law library

Samonte, Jr., 64 SCRA 319; People vs. Macuso, 64 SCRA 659; People vs. Boduso, 60 SCRA 60; People vs. Sudoy, 60 SCRA 174; People vs. Velez, 58 SCRA 21; People vs. Pelayo, 24 SCRA 1027; People vs. Tumaob, 83 Phil. 738. chanrobles virtual law library

11 pp. 14 and 16, t.s.n., July 3, 1979. chanrobles virtual law library

12 People vs. Oandasan, 25 SCRA 277; People vs. Alviar, 56 Phil. 98; People vs. Sotelo, et al, 55 Phil. 396; People vs. De la Pena 54 Phil. 818; People vs. Berganio, et al., 52 Phil. 313; People vs. Lucero, 49 Phil. 160; People vs. Almendralejo, 48 Phil. 268; People vs. Mercado, 43 Phil. 950; U.S. vs. Rivera, 41 Phil. 472; U.S. vs. Pasca, 28 Phil. 222; U.S. vs. Agaludud, 8 Phil. 750; U.S. vs. Dimitillo, 7 Phil. 475; U.S. vs. De Ocampo, 6 Phil. 449; U.S. vs. Sy Vinco, 5 Phil. 47: U.S. vs. De Castro, 2 Phil. 67; U.S. vs. Ancheta, 1 Phil. 30.chanrobles virtual law library

13 People vs. Sotelo, 55 Phil. 396; U.S. vs. De Castro, 2 Phil. 67; U.S. vs. Ancheta, 1 Phil. 30.chanrobles virtual law library

14 Article 29 of the Revised Penal Code, as amended by Republic Act No. 6127.

Example of Incomplete Defense of Relative

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. L-56358 October 26, 1990

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. LUIS B. TORING DIOSDADO BERDON and CARMELO B. BERDIN, Accused-Appellants.

 

FERNAN, C.J.:

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

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

Appreciating in favor of the accused Luis B. Toring the mitigating circumstance of voluntary surrender, the said circumstance having been offset by the aggravating circumstance of nighttime, the accused Luis Toring should be, as he is, hereby

sentenced to the penalty of RECLUSION PERPETUA, with the accessory penalties of law.chanroblesvirtualawlibrarychanrobles virtual law library

There being neither mitigating nor aggravating circumstances on the part of the accused Diosdado Berdon, the said accused should as he is hereby sentenced to the indeterminate penalty of from SIX (6) YEARS of Prision Correccional, as minimum, to TWELVE (12) and ONE (1) DAY of Reclusion Temporal, as maximum, with the accessory penalties of the law.chanroblesvirtualawlibrary chanrobles virtual law library

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

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

The instrument of the crime, the knife, Exhibit "B", is confiscated in favor of the government.chanroblesvirtualawlibrary chanrobles virtual law library

Proportionate costs.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED. 1 chanrobles virtual law library

According to the prosecution, the antecedent facts are as follows:  chanrobles virtual law library

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

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

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

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

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

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

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

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

them to the house of Toring which Berdin entered. When he emerged from the house, Berdin handed the weapon to the police. 6 chanrobles virtual law library

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

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

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

 chanrobles virtual law library

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

 chanrobles virtual law library

At 2:00 o'clock in the afternoon of May 26, 1980, Toring surrendered to two Philippine Constabulary soldiers. 12 They brought him to the police of Lapu-lapu City on May 28, 1980. 13 When the police asked him about the knife he used in stabbing Samuel, Toring told them to go to Carmelo Berdin because he was the only person who knew where Toring hid it. 14 Asserting that he was the one who returned the knife to his own house, Toring testified that Carmelo Berdin used to see him hide his weapons upstairs because Berdin was a frequent visitor of his. 15

 chanrobles virtual law library

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

 chanrobles virtual law library

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

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

 chanrobles virtual law library

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

 chanrobles virtual law library

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

court surmised that if Samuel really carried a shotgun, he certainly must have had a permit or license to possess the same. chanroblesvirtualawlibrary chanrobles virtual law library

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

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

All three accused appealed. chanroblesvirtualawlibrary chanrobles virtual law library

Toring seeks his exoneration by contending that his assault on Samuel was justified because he acted in defense of his first cousin, Joel Escobia. Article 11 (3) of the Revised Penal Code provides that no criminal liability is incurred by anyone "who acts in defense of ... his relatives ... by consanguinity within the fourth civil degree, provided that the first and second requisites prescribed in the next preceding circumstance are present, and the further requisite, in case the provocation was given by the person attacked, that the one making defense had no part therein." The first and second requisites referred to are enumerated in paragraph (b) in the same article on selfdefense as: (a) unlawful aggression, and (b) lack of sufficient provocation on the part of the person defending himself. chanroblesvirtualawlibrary chanrobles virtual law library

Joel Escobia, whose chin was hit with the butt of Samuel's shotgun, is the first cousin of Toring their fathers being brothers, 23 although no explanation appears on record why they have different surnames. At any rate, this allegation on relationship was not rebutted by the prosecution.chanroblesvirtualawlibrary chanrobles virtual law library

The appreciation of the justifying circumstance of defense of a relative, however, hinges in this case on the presence of unlawful aggression on the part of the victim. Corollarily, the claim of Toring that Samuel was, at the time of the assault, carrying a shotgun to intimidate Toring's group must be proven. chanroblesvirtualawlibrary chanrobles virtual law library

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

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

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

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There is no reason to doubt Joel Escobia's assertion of Samuel's unlawful aggression inasmuch as his sworn statement 29 and testimony in court had not been successfully discredited by the prosecution which also failed to prove that Joel had reason to prevaricate to favor Toring. chanroblesvirtualawlibrary chanrobles virtual law library

The presence of unlawful aggression on the part of the victim and the lack of proof of provocation on the part of Toring notwithstanding, full credence cannot be given, to Toring's claim of defense of a relative. Toring himself admitted in court 30 as well as in his sworn statement 31 that in 1979, he was shot with a .22 caliber revolver by Edgar Augusto, Samuel's brother. It cannot be said, therefore, that in attacking Samuel,

Toring was impelled by pure compassion or beneficence or the lawful desire to avenge the immediate wrong inflicted on his cousin. Rather, he was motivated by revenge, resentment or evil motive 32 because of a "running feud" between the Augusto and the Toring brothers. As the defense itself claims, after the incident subject of the instant case occurred, Toring's brother, Arsenio, was shot on the leg by Edgar Augusto. Indeed, vendetta appears to have driven both camps to commit unlawful acts against each other. Hence, under the circumstances, to justify Toring's act of assaulting Samuel Augusto would give free rein to lawlessness. chanroblesvirtualawlibrary chanrobles virtual law library

The lower court correctly considered the killing as murder in view of the presence of the qualifying circumstance of treachery. The suddenness of the assault rendered Samuel helpless even to use his shotgun. We also agree with the lower court that conspiracy and evident premeditation were not proven beyond reasonable doubt. Moreover, nighttime cannot be considered as an aggravating circumstance. There is no proof that it was purposely sought to insure the commission of the crime or prevent its discovery. 33 However, Toring should be credited with the privileged mitigating circumstance of incomplete defense of relative and the generic mitigating circumstance of voluntary surrender. chanroblesvirtualawlibrary chanrobles virtual law library

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

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

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

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

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

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

The lower court's decision is modified as follows:  chanrobles virtual law library

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

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

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

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

SO ORDERED.

Gutierrez, Jr. and Bidin, JJ., concur. chanroblesvirtualawlibrary chanrobles virtual law library

Feliciano, J., is on leave.

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Endnotes:

1 Rollo, pp. 24-25. chanrobles virtual law library

2 TSN, September 23, 1980, p. 30. chanrobles virtual law library

3 TSN, supra, pp. 37-38. chanrobles virtual law library

4 TSN, October 14, 1980, pp. 35-37. chanrobles virtual law library

5 Exhibit E.chanrobles virtual law library

6 TSN, October 15, 1980, pp. 23-24. chanrobles virtual law library

7 Rollo, pp. 8-9.chanrobles virtual law library

8 TSN, October 22, 1980, pp. 23-24. chanrobles virtual law library

9 TSN, supra, pp. 31-32. chanrobles virtual law library

10 TSN, supra, pp. 33-39.chanrobles virtual law library

11 TSN, supra, pp. 68-70.chanrobles virtual law library

12 TSN, supra, pp. 41-42.chanrobles virtual law library

13 TSN, October 13, 1980, p. 7.chanrobles virtual law library

14 TSN, October 22, 1980, pp. 42-43. chanrobles virtual law library

15 TSN, supra, pp. 79-81.chanrobles virtual law library

16 TSN, October 24, 1980, pp. 19-20; 24-25. chanrobles virtual law library

17 TSN, October 22, 1980, p. 93.chanrobles virtual law library

18 TSN, October 24, 1980, pp. 7-8. chanrobles virtual law library

19 TSN, October 24, 1980, pp. 5-6. chanrobles virtual law library

20 Presided by Judge Regino Hermosisima, Jr. chanrobles virtual law library

21 Decision, pp. 11-12.chanrobles virtual law library

22 Decision, p. 13.chanrobles virtual law library

23 TSN, October 23, 1980, p. 32.chanrobles virtual law library

24 TSN, October 27, 1980, p. 15.chanrobles virtual law library

25 Decision, p. 4.chanrobles virtual law library

26 People vs. Ligon, G.R. No. 74041, July 29, 1987, 152 SCRA 419, 426. chanrobles virtual law library

27 Exhibit G, or Exhibit 2-Toring and Exhibit 3-Berdon and Berdin. chanrobles virtual law library

28 TSN, October 23, 1980, p. 35.chanrobles virtual law library

29 Exhibit G.chanrobles virtual law library

30 TSN, October 22, 1980, pp. 74-75. chanrobles virtual law library

31 Exhibit C. chanrobles virtual law library

32 See: People vs. Punzalan, G.R. No. 54562, August 6, 1987, 153 SCRA 1, 12. chanrobles virtual law library

33 People vs. Beltran, L-38049, July 15, 1985, 137 SCRA 508. chanrobles virtual law library

34 People vs. Renejane, G.R. Nos. 76954-55, February 26, 1988, 158 SCRA 258, 268. chanrobles virtual law library

35 TSN, October 24, 1980, p. 9.chanrobles virtual law library

36 People vs. Santillan, G.R. No. 68331, January 29, 1988, 157 SCRA 534, 539. chanrobles virtual law library

37 Exhibit 4.chanrobles virtual law library

38 People vs. Aquillano, G.R. No. 72318, April 30, 1987, 149 SCRA 442. chanrobles virtual law library

39 Exhibit D.