PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELMEDIO CAJARA, accusedappellant. DECISION BELLOSILLO, J.

: ELMEDIO CAJARA alias Elming is before us on automatic review after having been found guilty by the trial court of Qualified Rape and sentenced to death. The Information alleged that on 30 May 1994 in Barangay Serum, Basey, Samar, the accused Elmedio Cajara, a brother-in-law of Marita B. Cajote and husband of her older sister, by means of force and intimidation, willfully and feloniously had carnal knowledge of her against her will and consent. On 16 March 1995 the trial court found the accused guilty of rape as defined in Art. 335 of The Revised Penal Code in relation to Sec. 11 of RA 7659, and sentenced him to death. On 18 May 1994 16-year old Marita Cajote, a resident of Manila, arrived in Basey, Samar, and stayed with her sister Marie. The following day, Marita was fetched by another sister, Merly Tagana also known as Meling, and by the latters husband, accused Elmedio Cajara also known as Elming. Upon being told by Meling that they would be going to Sulod to get copra, Marita went with Meling and Elming to the couples house in Sitio Catuhaan in Barangay Serum. Since then until 30 May 1994 Marita stayed with Meling and Elming together with their two (2) small children in a house consisting of only one room without any partition. In the evening of 30 May 1994 complaining witness Marita Cajote slept at one end of the room with the two (2) children, with Meling and Elming at the other end. At about two oclock the following morning Marita was awakened by the weight of accused who was already on top of her. The accused who was holding a bolo told her to keep quiet or he would kill her. He then placed his bolo aside and held Maritas hands with his right hand. With his left hand accused lowered Maritas pants as well as her panty down to her knees. Marita shouted for help but her sister Meling just wrapped her head with their mosquito net and pretended to be asleep. Marita struggled continuously against the advances of the accused but he was much stronger, while she was getting weak. The accused first inserted his fingers into Maritas private part and later succeeded in inserting his penis into her vagina. Meling then pulled Elming away from Marita and hit Elming in the eye. Elming boxed Meling on the mouth and kicked her when she fell on the floor. Elming went back to Marita and continued with his beastly acts. By this time, Marita was already too weak to resist. Elming inserted his fingers first and then his penis into her private organ. The older of the two (2) children of Meling cried. Meling who was holding her youngest child helplessly watched the accused rape her younger sister. After satisfying his lust, the accused asked Marita to go away with him. Marita cried and dressed herself. When accused went to the door, she jumped out of the window and ran away, but the accused chased her and after overtaking her threatened to kill her if she would return to their house. So Marita pretended to submit to his wishes. Fortunately she found an opportunity to hide

herself from the accused. Then she dashed for safety to the house of her sister Marie and then to another sister Lilia. Marita revealed to both of them what the accused had done to her. But her sisters advised her not to file a criminal case against their brother-in-law for fear that he might kill all of them. But Marita went to the chief of the barangay tanod" whom she called Mano Henry, who accompanied her to the barangay captain. The barangay captain, Rolando Jaingue, also made the same advice against filing a criminal charge against the accused as the latter might attack and kill them. The accused was known in the community to have killed six (6) people. Finally, barangay captain Jaingue issued an indorsement of the case to the Philippine National Police stationed in Basey, Samar. When physically examined by Dr. Danilo Fami, Municipal Health Officer of Basey, Samar, Marita was found to have a healed laceration of her hymen at 4 oclock position. In his defense, the accused Elmedio Cajara denied the charge against him. He alleged that Marita was the maternal half-sister of Meling, his common-law wife; that at around 6 oclock in the evening of 30 May 1994 he was in his house with Meling and their two (2) children when Marita arrived and invited them for a drink; that since he was then busy gathering tuba he was able to join them only at around 8 oclock until 11 oclock that evening after which he went to sleep. However, at around 2 oclock in the morning he was awakened by the quarrel of his wife and Marita; that when his wife asked Marita why the latter placed her leg over him, Marita answered that she did not know; and, that Meling ordered her to get out of their house, but before she left Marita said that she would file a case against him who was on parole. Merly Tagana alias Meling, common-law wife of the accused, corroborated his testimony. When asked on direct examination why her sister Marita would file a rape charge against her husband, Meling denied that her husband raped Marita, saying that "it was not the mistake of (her) husband because he is a man and that she is a girl." Persuaded beyond reasonable doubt that Elmedio Cajara did rape 16-year old Marita Cajote on 30 May 1994 in front of his common-law wife and his two small children, the trial court convicted him as charged and sentenced him to death. In his Brief the accused faults the trial court for giving credence to the testimony of the rape victim, Marita Cajote, despite its failure to meet the test of moral certainty; that the testimony of Merly Tagana, his common-law wife, that there was no rape should have been given more weight than the testimony of Marita Cajote because Meling being a half-sister of Marita would have sympathized with her if the rape incident was true; and, that Maritas claim that she was a virgin before she was raped was belied by the testimony of the medico-legal officer that there was a laceration which could have healed even before the rape incident. The Office of the Solicitor General, in its brief, belittles the accused for failing to show any compelling or justifiable reason to set aside his conviction for rape and his penalty of death, citing Art. 335 of The Revised Penal Code, as amended by RA 7659, the relevant portion of which states:

The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: x x x x 3. when rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity. The Solicitor General is correct in finding the accused guilty of rape. The bare denial of the accused and his common-law wife cannot overcome the categorical testimony of the victim. Denial when unsubstantiated by clear and convincing evidence is a negative and self-serving evidence which deserves no greater evidentiary value than the testimony of a credible witness on affirmative matters. No woman, especially of tender age, would concoct a story of defloration, allow an examination of her private parts and thereafter pervert herself by being subjected to a public trial if she was not motivated solely by the desire to have the culprit apprehended and punished. A complainants act in immediately reporting the commission of the rape has been considered by this Court as a factor strengthening her credibility. The immediate decision of Marita to report the crime to her sisters and the barangay officials as well as to face police authorities and submit to a medical examination are a mute but eloquent testimony of the truth of her charge against accused. We agree with the finding of the trial court that Maritas positive identification of the accused as the person who raped her was given in a categorical, straightforward and spontaneous manner which rendered it worthy of faith and belief Q: While you were asleep on May 30, 1994, at 2:00 in the morning, can you still recall if you were awakened and why? A: I was awakened because I was surprised. Q: Why were you surprised? A: Because he was on top of me. Q: Who was the person on top of you? A: Elming Cajara. Q: How do you know that it was Elming? A: Because there was light for the whole morning. Q: Where was this light being placed? A: On the altar. Q: How far was the light to the place where you were lying down? A: About two meters.

Q: Did Elming say anything to you when he was on top of you? A: Yes, ma'am x x x x He said keep quiet x x x x If you will make a noise I will kill you. Q: What else? A: I shouted x x x x Help, help Manding. Q: Who is this Manding you are referring to? A: Meling. Q: Your elder sister? A: Yes, ma'am. Q: And when Elming Cajara warned you not to make any noise did you observe if he has (sic) any weapon with him? A: Yes he has x x x x Sundang. Q: Where was the bolo? A: Near the head x x x x Elming Cajara at the time he slept he has a bolo with him. Q: Where is this bolo you are referring to? A: Near the head he was holding. Q: He was holding the bolo with what hand? A: Right hand. Q: About you when you shouted, what else did you do while he was on top of you. A: I kept on asking for help because he was holding my two hands over my head. Q: With what hand he was holding your hands as he was holding the bolo? A: When he told me not to make any noise he was holding my two hands. Q: With what hand and how did he hold your two hands? A: His right hand. Q: How about his left hand?

A: Undressing me. Q: What was being undressed? (sic) A: My maong pants x x x x Garterized. Q: Do (sic) you have panty at that time? A: Yes, ma'am. Q: How about your panty, was it undressed? A: Yes, ma'am. Q: Up to what portion of your body were you undressed? A: Middle part of my legs. Q: As you were shouting for your Manding to help you, what did your Manding do? A: After I was shouting for help for a long time, Manding grabbed Elming from me and Meling punched Elming hitting his eye. Q: When Meling grabbed and punched Elming, what was Elming doing at that time? A: He inserted his finger into my vagina after which he inserted his penis into my vagina. Q: What did you do when Elming inserted his finger into your vagina? A: I was trying to resist (from) him but I could not as he was holding my hands. Q: While he was inserting his penis to your vagina, what did you do? A: I was trying to resist and shouting and I was weak x x x x Q: After Meling pulled her husband, what happened next? A: Meling fell because she was punched by Elming x x x x She was hit on her mouth and she was kicked x x x x Q: After kicking Meling what did Elming do? A: After Elming kicked Meling and I was able to put on my panty Elming came back. Q: When Elming went back to you, what did Elming do to you?

A: x x x x he undressed me again x x x x he abused me again x x x x he was inserting his finger and penis into my vagina. Q: Was he able to insert again his penis into your vagina? A: Yes, ma'am x x x x Q: For how many times have (sic) he inserted his penis? A: Twice. The argument of the accused is untenable that the testimony of his common-law wife that there was no rape should have been believed by the trial court because she was Maritas half-sister who would naturally protect Maritas honor if she was indeed raped. Not every witness to a crime can be expected to act reasonably and conformably to the expectation of mankind. We have noted that in some instances it was but natural for witnesses not to come to the victims rescue for fear of their lives, especially when threatened with harm should they do so. Self preservation is still recognized as the most fundamental human instinct. In the case of Merly Tagana, although she is half-sister to Marita, she is also the common-law wife of the accused. While relationship between the accused and his witness is not necessarily detrimental to the formers line of defense, this relationship taken together with the want of logic in the declarations of the witness, yields to the conclusion that her testimony is not credible. The trial court found evident discrepancies in Merly Tagana's testimony which cannot but raise wellfounded and overriding doubts on her testimony. Merly Tagana contradicted the testimony of the accused and herself twice when she stated that Marita slept in the house with her and the accused on 29 May 1994, the night before the rape. Although she testified that the accused did not rape her sister, she complained on the witness stand that it was not the mistake of the accused to have done what he did because he was a man and Marita was a girl. The opinion of the trial court as to who of the witnesses should be believed is entitled to great respect on the oft-repeated rationale born of judicial experience that the trial judge who heard the witnesses testify and had the occasion to observe their demeanor on the stand was in a vantage position to determine who of the witnesses deserve credence. The assertion of the accused that Marita was no longer a virgin when she was raped will not exculpate him from criminal liability. The records show that Marita was sexually abused twice. After inserting his fingers, the accused inserted his organ into her private part, and after awhile, accused repeated the sexual abuse. Clearly, when Marita was raped for the second time, she was no longer a virgin; she could have already lost her virginity during the first rape. Further, wellsettled is the rule that prior sexual intercourse which could have resulted in hymenal laceration is not necessary in rape cases for virginity is not an element of rape. It should be emphasized however that since the Information charged only one offense, even if the evidence showed a second act of forcible intercourse, conviction for one rape was proper. The trial court in the case at bar imposed the penalty of death upon the accused after taking into account the following circumstances, i.e., the minority of Marita Cajote who was only 16- years

old at the time of the rape; relationship by affinity where the victim was said to be the sister of the common-law wife of the accused; and, finally, the fact that the rape was committed by the accused in the full view of his wife and children. The relevant portions of Sec. 11 of RA 7659 amending Art. 335 of The Revised Penal Code, which took effect 31 December 1993, state: When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and, 3. When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua x x x x The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree or the common-law spouse of parent of the victim x x x x 3. When the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity x x x x Contrary to the ruling of the trial court and the stand of the Solicitor General, the accused can only be convicted of simple rape punishable by reclusion perpetua. It was error for the trial court to impose the penalty of death. Although the circumstance of relationship by affinity within the third civil degree was alleged in the Information, evidence for the prosecution clearly showed the lack or absence of such circumstance to qualify the rape because the accused and Merly Tagana, sister of the victim Marita Cajote, were mere common-law husband and wife and were not legally married at the time of the rape. The accused and the victim cannot be said to be related by affinity within the third civil degree at the time of the commission of the crime. Neither can the accused be convicted of qualified rape on the basis of the circumstance that the rape was committed in full view of the relatives of the victim within the third degree of consanguinity because this qualifying circumstance was not pleaded in the Information or in the Complaint against the accused. The Constitution guarantees the right of every person accused in a criminal prosecution to be informed of the nature and cause of the accusation against him. Thus, it is fundamental that every element of the offense must be alleged in the complaint or information. The main purpose of requiring the various elements of a crime to be set out in an information is to enable the accused to suitably prepare his defense. In People v. Morena this Court explained that it would be a denial of the accused of his right to be informed of the charges against him and, consequently, a denial of due process if he is convicted of an offense other than that charged in the complaint or information. Hence, when the information alleges rape by force and intimidation under par. 1, Art. 335, of The Revised Penal Code, the accused cannot be convicted of rape under pars. 2 or 3 of the same Article. In this case, since the accused was charged with rape qualified by minority and relationship under the first attendant circumstance where the death penalty is imposable, he cannot be convicted of rape

qualified by the third attendant circumstance of commission of rape within the full view of the relatives of the victim, since this was not alleged in the Information. The records show that the crime was aggravated by reiteracion under Art. 14, par. 10, of The Revised Penal Code, the accused having been convicted of frustrated murder in 1975 and of homicide, frustrated homicide, trespass to dwelling, illegal possession of firearms and murder sometime in 1989 where his sentences were later commuted to imprisonment for 23 years and a fine of P200,000.00. He was granted conditional pardon by the President of the Philippines on 8 November 1991. Reiteracion or habituality under Art. 14, par. 10, herein cited, is present when the accused has been previously punished for an offense to which the law attaches an equal or greater penalty than that attached by law to the second offense or for two or more offenses to which it attaches a lighter penalty. As already discussed, herein accused can be convicted only of simple rape and the imposable penalty therefor is reclusion perpetua. Where the law prescribes a single indivisible penalty, it shall be applied regardless of the mitigating or aggravating circumstances attendant to the crime, such as in the instant case. We note that the trial court did not award any civil indemnity. Pursuant to current jurisprudence and without need of further proof, we award the victim Marita Cajote an indemnity of P50,000.00 and moral damages of P50,000.00. In People v. Prades the Court resolved that moral damages may additionally be awarded to the victim in the criminal proceeding in such amount as the Court may deem just without the need for pleading or proof of the basis therefor. WHEREFORE, the Decision of the trial court convicting the accused ELMEDIO CAJARA alias Elming of Qualified Rape is MODIFIED to the effect that he is convicted instead only of Simple Rape and is sentenced to suffer the penalty of reclusion perpetua. He is further ordered to pay the victim Marita B. Cajote civil indemnity of P50,000.00 and moral damages of another P50,000.00. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEPITO (Piting) SEBASTIAN y SINDOL, accused-appellant. DECISION YNARES-SANTIAGO, J.: This is an appeal from the Decision of the Regional Trial Court of Cagayan, Branch 9, in Criminal Case No. 09-700, convicting accused-appellant of the crime of Murder and sentencing him to suffer the penalty of reclusion perpetua and to pay the heirs of the deceased the sum of P50,000.00 as death indemnity.

The facts as narrated by the prosecution witnesses are as follows: On the night of June 3, 1991, a certain Cesar Dumaoal hosted a pre-wedding celebration in his house in Buguey, Cagayan. The victim and the accused-appellant were among those invited to attend the celebration. At about 8:00 oclock of the same evening, when the victim and his companions were about to enter the gate of the hosts house, accused-appellant approached them and told the victim that he had been wanting to see him. Thereafter, accused-appellant entered the house of Cesar Dumaoal. The victim sensed danger, thus he was advised by his friends to go home. When the victims group was about to go home, however, accused-appellant and his cohorts blocked their way. The victims group decided to stay inside the house of Cesar Dumaoal, and they were told to stay in the mess hall. In the course of the celebration, the operator played a loud rock song. At that instant, accused-appellant rushed to the victim and shot him. The bullet tore through the abdomen of the victim, causing his death. Then, accused-appellant fled. On the other hand, accused-appellant denied the accusation against him. He testified that he was on the dance floor with a lady companion when he heard that somebody was shot. When he ran towards the scene of the disturbance, he saw the wounded victim being carried by a certain Celso Upano. He thereafter entered and sought cover inside the house of Cesar Dumaoal. On March 14, 1997, the trial court rendered the assailed decision, the dispositive portion thereof states: WHEREFORE, for all the foregoing considerations, the Court hereby finds the accused guilty beyond any reasonable doubt of the crime charged and sentences him to reclusion perpetua. He is further directed to indemnify the heirs of the victim in the amount of P50,000.00. No costs. In the instant appeal, accused-appellant contends that the trial court erred in appreciating the qualifying circumstances of treachery and evident premeditation and that he should be convicted only of homicide. It is well settled that there is treachery when the offender commits any of the crimes against persons, employing means, method or forms in the execution thereof which tend directly and especially to insure its execution, without risk to himself arising from the defense which the offended party might make. The essence of treachery is the sudden and unexpected attack without the slightest provocation on the part of the person being attacked. In the case at bar, the sudden and unexpected attack on the unarmed victim clearly shows that the killing was attended by the qualifying circumstance of treachery. The alleged animosity between the victim and accused-appellant, as well as their encounter which preceded the shooting incident, will not preclude treachery because said qualifying circumstance may still be considered even when the victim was forewarned of danger to his person. What is decisive is that the execution of the attack made it impossible for the victim to defend himself or to retaliate. Here, accused-appellant evidently timed his attack with the sudden blast of music. The shot was therefore a complete surprise to the victim, rendering him utterly defenseless at the time of the assault. Hence, the trial court correctly appreciated the qualifying circumstance of treachery.

However, as to the aggravating circumstance of evident premeditation, there is merit in accusedappellants contention that said circumstance should not have been considered in the case at bar. The elements of evident premeditation are: (1) a previous decision by the accused to commit the crime; (2) an overt act or acts manifestly indicating that the accused has clung to his determination; (3) a lapse of time between the decision to commit the crime and its actual execution enough to allow the accused to reflect upon the consequences of his acts. As there is neither evidence of planning or preparation to kill nor of the time when the plot was conceived, evident premeditation cannot be considered in the instant case. Nevertheless, the crime committed is still murder in view of the presence of the qualifying circumstance of treachery. At the time of the commission of the crime on June 3, 1991, murder was punishable by reclusion temporal in its maximum period to death. Since neither mitigating nor aggravating circumstances were proved, the penalty should be imposed in its medium period, i.e., reclusion perpetua. In addition to the civil indemnity of P50,000.00, the heirs of the deceased are entitled to moral damages in the amount of P50,000.00, which needs no proof considering that the conviction of accused-appellant for the crime charged is sufficient to justify said award. WHEREFORE, in view of all the foregoing, the Decision of the Regional Trial Court of Cagayan, Branch 9, in Criminal Case No. 09-700, finding accused-appellant Pepito (Piting) Sebastian y Sindol guilty beyond reasonable doubt of the crime of Murder, sentencing him to suffer the penalty of reclusion perpetua and ordering him to pay the heirs of the deceased the sum of P50,000.00 as death indemnity is AFFIRMED with the MODIFICATION that accusedappellant is further ordered to pay moral damages in the amount of P50,000.00. SO ORDERED. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GILBERT DADIVO y MENDOZA, accused-appellant. DECISION YNARES-SANTIAGO, J.: Accused-appellant Gilbert Dadivo y Mendoza was charged in Criminal Case No. 352064 before the Regional Trial Court of Santiago City, Branch 35, with murder in an information which reads, thus: That sometime on December 31, 1995, in the City of Santiago, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bladed weapon, did then and there willfully, unlawfully and feloniously, attack, assault, stab and wound TEODORICO DELA CRUZ in the different parts of the body, inflicting upon him several wounds on the chest, with treachery and evident premeditation, said accused having inflicted said wounds upon Teodorico dela Cruz, and as a result thereof, the said

Teodorico dela Cruz died instantly due to intra thoracic hemorrhage due to penetrating wound on both right and left auricle of the heart. Accused-appellant pleaded not guilty on arraignment, after which trial ensued. At 4:00 in the afternoon of December 31, 1995, accused-appellant and his friends, Sonny Ocampo, Anthony Galot, Ben Calimlim and the victim Teodorico dela Cruz, were engaged in a drinking session at the house of Rudy dela Cruz in Calaocan, Santiago City. The conversation was merry and light. Accused-appellant, Ocampo and Galot were seated on one long bench while Calimlim and Teodorico dela Cruz were seated on the opposite bench. Between the two benches was a small table on which their appetizers and drinks were set. Accused-appellant left the group at 6:00 in the evening and went out of the house. He returned shortly and stood beside Galot, instead of returning to his seat. Calimlim had his right arm on Teodorico dela Cruz shoulder who had his left arm on Calimlims shoulder. Without any warning, accused-appellant lunged at Teodorico dela Cruz and stabbed him on the chest with a knife wrapped in handkerchief. Before anyone could react, accused-appellant stabbed Teodorico dela Cruz a second time. Teodorico dela Cruz weakly said, may tama ako. He died before reaching the hospital. Accused-appellant had a different version of the incident. He narrated that at 3:00 in the afternoon, he went to a nearby store to buy candy when he saw Sonny Tejada, whom he invited for a drink. However, the store-owner refused to let them drink in front of the store. Teodorico dela Cruz, who was nearby, invited them to drink at his brothers house. They drank gin and ate appetizers. Afterwards, they were joined by Sonny Ocampo, Anthony Galot and Raul Espiritu. At 6:00 in the evening, accused-appellant went out of the house to relieve himself. As he was already intoxicated and feeling dizzy, he had difficulty keeping his balance. When he got back to the group, he informed Teodorico dela Cruz that he would like to leave as he had enough. Teodorico dela Cruz refused to let him leave, so he held accused-appellants leg and cursed him. Teodorico dela Cruz then tried to reach for a knife on the table. Accused-appellant saw this as a threatening move, prompting him to jump the gun, so to speak, and stab Teodorico dela Cruz with his own fan knife. On February 8, 2000, the trial court rendered a decision as follows: WHEREFORE, the Court finds the accused GILBERT DADIVO y MENDOZA GUILTY beyond reasonable doubt of the crime of MURDER and hereby sentences him [to] the penalty of RECLUSION PERPETUA and ordered (sic) to indemnify the heirs of Teodorico dela Cruz the sum of P100,000.00 as moral damages, the sum of P200,000.00 as actual damages and the sum of P50,000.00 as consequence of his death and cost against the accused. In this appeal, accused-appellant contends:

I THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED GUILTY FOR THE CRIME OF MURDER DESPITE THE INSUFFICIENCY OF EVIDENCE ADDUCED TO PROVE THE QUALIFYING CIRCUMSTANCES THERETO; II THE COURT A QUO ERRED IN NOT CONSIDERING THE MITIGATING CIRCUMSTANCE OF INTOXICATION IN FAVOR OF THE ACCUSED. By invoking self-defense, accused-appellant in effect admitted authorship of the killing of Teodorico dela Cruz. The trial court, however, disbelieved his theory, finding that he was the unlawful aggressor. Hence, it found accused-appellant guilty of murder, qualified by treachery and evident premeditation. Accused-appellant argues that the prosecution failed to prove the qualifying circumstance of evident premeditation. The requirements to prove evident premeditation are the following: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit has clung to his determination; and (3) sufficient lapse of time between the determination and execution to allow him to reflect upon the consequences of his act. We agree that the elements of evident premeditation have not been established in this case. The premeditation to kill must be plain and notorious; it must be sufficiently proven by evidence of outward acts showing the intent to kill. In the absence of clear and positive evidence, mere presumptions and inferences of evident premeditation, no matter how logical and probable, are insufficient. It bears reiterating that a qualifying circumstance such as evident premeditation must be proven as clearly as the crime itself. Corollarily, every element thereof must be shown to exist beyond reasonable doubt and cannot be the mere product of speculation. In the case at bar, the trial court stated that [i]t is impossible for Dadivo to stab dela Cruz without any compelling reason at all. The trial court surmised that Teodorico dela Cruz might have slighted Dadivo during the drinking spree. The trial courts reasoning may be logical. However, the premise that accused-appellant might have been slighted by Teodorico dela Cruz is not supported by any evidence; hence it is speculative. There is no way of knowing the time when accused-appellant decided to stab Teodorico dela Cruz. The first requirement therefore has not been met. Likewise, the second requirement is absent. If the time when accused-appellant decided to stab Teodorico dela Cruz cannot be determined with certainty, then indeed one cannot infer that he clung to his determination to kill Teodorico dela Cruz. In fact, one cannot infer at all that the act of leaving the house presumably to relieve himself is

the overt act manifesting his determination to stab Teodorico dela Cruz. Settled is the rule that when it is not shown how and when the plan to kill was hatched or what time had elapsed before it was carried out, evident premeditation cannot be considered. Even the third requirement is lacking. Accused-appellants act of leaving the house was too short a time for him to meditate or reflect upon the consequences of his decision to stab dela Cruz. To warrant a finding of evident premeditation, it must appear not only that the accused decided to commit the crime prior to the moment of its execution but also that this decision was the result of meditation, calculation, reflection, or persistent attempt. Accused-appellant, likewise, disputes the trial courts finding that treachery attended the commission of the crime. For the qualifying circumstance of treachery to be appreciated, two elements must concur: (1) the employment of means of execution which gives the person attacked no opportunity to defend himself or retaliate; and (2) the means of execution is deliberately or consciously adopted. The trial court found that accused-appellant attacked Teodorico dela Cruz from behind. This, however, is belied by testimonial evidence and by the location of the wounds. There is no evidence that Teodorico dela Cruz was attacked from behind. Rather, the evidence indicates that the attack against Teodorico dela Cruz was frontal. This is bolstered by the location of the wounds which were both on the chest. The settled rule is that treachery can exist even if the attack is frontal if it is sudden and unexpected, giving the victim no opportunity to repel it or defend himself. What is decisive is that the execution of the attack, without the slightest provocation from a victim who is unarmed, made it impossible for the victim to defend himself or to retaliate. From all indications, Teodorico dela Cruz was simply enjoying the drinks, the food, the talk and the company. His left arm was even on Calimlims shoulder. He was seated on a bench. He could not have anticipated accused-appellants evil intention. Before accused-appellant delivered the fatal first thrust, the knife was concealed in a handkerchief. In fact, the victim as well as his drinking companions only realized what was happening when the knife was uncovered after the first thrust was delivered. Therefore, the circumstance of treachery was present, thereby qualifying the killing to murder. In seeking to mitigate his sentence, accused-appellant alleges that he was intoxicated when he committed the killing. However, this circumstance, even if proved, will not have any effect as far as the penalty is concerned. Besides, accused-appellant failed to prove that he was intoxicated. Settled is the rule that the intoxication of the offender shall be taken into consideration as a mitigating circumstance when the offender has committed a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to commit the felony. He failed to prove those conditions. As the Solicitor General aptly observed:

Accused-appellant himself narrated that after stabbing the victim, he ran home, confessed to his parents what he did and asked them to surrender him to the police. These actuations are hardly the acts of a man so inebriated that his will-power was impaired or that he could no longer comprehend the wrongfulness of his acts. Accused-appellant is, therefore, guilty of murder, penalized under Article 248 of the Revised Penal Code by reclusion perpetua to death. There being neither mitigating nor aggravating circumstance that attended the killing, the lesser of the two indivisible penalties shall be imposed, i.e., reclusion perpetua, pursuant to Article 63 (2) of the Revised Penal Code. On the matter of damages, the trial court correctly granted the award of P50,000.00 as indemnity ex delicto for the death of Teodorico dela Cruz. However, the award of P100,000.00 as moral damages should be reduced to P50,000.00 in line with prevailing jurisprudence. Likewise, the trial courts award of P200,000.00 as actual damages, inclusive of loss of earning capacity as well as funeral and burial expenses, is improper. Rudy dela Cruz, the victims brother, testified on the funeral and burial expenses. Out of the amount awarded, only P4,500.00 representing funeral services was duly receipted. On the other hand, Sinamar dela Cruz, Teodorico dela Cruzs widow, testified that her husband was earning P26,000.00 per annum as a farmer and part-time construction worker. In People v. Panabang, we ruled: Indemnification for loss of earning capacity partakes of the nature of actual damages which must be duly proven. A self-serving statement, being unreliable, is not enough. xxx [F]or lost income to be recovered, there must likewise be an unbiased proof of the deceaseds average, not just gross, income. An award for loss earning capacity refers to the net income of the deceased, i.e., his total income net of expenses. xxx. A recovery of actual damages requires proof, with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable by the injured party, on the amount actually expended in connection with the death of the victim. WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Santiago City, Branch 35, finding Gilbert Dadivo y Mendoza guilty beyond reasonable doubt of murder and sentencing him to suffer the penalty of reclusion perpetua, is AFFIRMED with the MODIFICATION that the award for moral damages is reduced from P100,000.00 to P50,000.00 and the award for actual damages is likewise reduced from P200,000.00 to P4,500.00. The award of P50,000.00 as indemnity ex delicto is AFFIRMED. SO ORDERED. Davide, Jr., C.J., (Chairman), Vitug, Kapunan, and Austria-Martinez, JJ., concur.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALBERTO DANO y JUGILON, accused-appellant. DECISION QUISUMBING, J.: On appeal is the decision of the Regional Trial Court of San Miguel, Zamboanga del Sur, Branch 29, in Criminal Case No. 1579, promulgated on July 25, 1994, finding appellant Alberto Dano y Jugilon guilty beyond reasonable doubt of murder, for the death of his brother Emeterio Dano, and imposing upon him the penalty of reclusion perpetua. The facts of this case are gleaned from the records. On April 11, 1994, the Provincial Prosecutor of Zamboanga del Sur charged appellant with the crime of murder, as follows: That on or about March 16, 1994 at around 6:30 oclock in the evening, more or less, at Tiguian, Margosatubig, Zamboanga del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously, assault, attack, hack and stab his brother Emeterio Dano inflicting several mortal wounds causing his instantaneous death. Contrary to law with qualifying aggravating circumstances of evident premeditation and treachery. On May 3, 1994, appellant was arraigned and with the assistance of counsel de parte, pleaded not guilty to the charge. Trial on the merits then ensued. The prosecution presented four witnesses: Wilfredo Tapian, a carpenter; Demosthenes Peralta, the barangay captain of Tiguian, Margosatubig, Zamboanga del Sur; SPO3 Jesus Reales of the Philippine National Police (PNP); and Teresita Dano, widow of the victim. The prosecutions evidence established the following: On March 16, 1994, at around half past six oclock in the evening, prosecution witness Wilfredo Tapian was resting in the house of a Neneng Miras in Tiguian, Margosatubig, when Teresita Dano arrived and asked for his help. Teresita told Wilfredo that her husband, Emeterio, attacked his brother Alberto, herein appellant, in the latters house. Wilfredo immediately rushed to appellants house, which was some one hundred meters away. On arriving at appellants house, Wilfredo saw the victim pacing back and forth in appellants front yard. The victim, armed with a scythe was shouting at appellant, who was looking out of the window, to come down so they could fight to the death. (Kanaog diri kay magkamatay ta.) Wilfredo tried to pacify the victim who kept repeating his challenge while striking his scythe on the ground, but to no avail. Appellant also advised his younger brother to go home, but the latter

refused to listen. Suddenly, Emeterio leaped at appellant who was standing with his head out of the window and slashed appellant with his scythe but missed. Seeing that his efforts to stop the fraternal quarrel were of no use and fearful of being hit in the affray, Wilfredo left for home. Between the hours of six and seven oclock that same evening, Demosthenes Peralta, the barangay captain of Tiguian, was informed by Wilfredo and a certain Fernando Teves that the Dano brothers were quarreling. Demosthenes went to appellants home to investigate. On his way, he met appellant. The latter told Peralta he had killed Emeterio and voluntarily surrendered to him. Demosthenes left appellant in Wilfredos house and proceeded to appellants residence where he saw the bloody corpse of the victim sprawled in the yard, near the stairs. He noticed that the body bore several hacking and slashing wounds. Demosthenes fetched appellant from Wilfredos house and took him to the police station. Early in the morning of the next day, Demosthenes fetched a doctor from the town proper of Margosatubig. The latter examined the victims body, still lying in appellants yard. At the request of the police station commander, Demosthenes took photos of the corpse, which he later turned over to the police. He conducted a further examination of the crime scene and found a bloodstained scythe beneath appellants house. The scythes wooden handle had the name Alberto Dano carved on it. He turned over the scythe to the police. The necropsy report established that the cause of death was acute blood loss, secondary to multiple hacking wounds. When interrogated by the police, appellant, without assistance of counsel, admitted he killed his brother. The pertinent portion of his statement, contained in the police blotter, and read into the records without objection by the defense, reads: [S]ubject admitted of (sic) killing his younger brother as the latter was drunk and provoked him for (sic) a scythe duel right downstair(s) of his house that prompted him to get his scythe and come down from his house and allegedly boxed first his brother and subsequently hacked several times as he was already commanded by his evil thought(s). The victims widow admitted that the scythe, which her late husband carried on that fateful day, was returned to her by some people in their barangay. She did not turn over the scythe to the police. The defense presented appellant and his spouse as its witness. Appellant claimed that he acted in self-defense and in defense of his family. He narrated that he and his family were preparing to go to bed at around 6:30 p.m. March 16, 1994, when he heard somebody shout Boy, come down and we will fight to death. (Boy kanang diha kay magpatay ta) At first, he tried to ignore the challenge, but when it was repeated several times, he looked out the window and saw his brother Emeterio outside, armed with a scythe. He told his brother to go home but the latter, who appeared disturbed, did not heed his words. Instead, he kept on hitting the ground with the scythe. Without any provocation on his part, Emeterio suddenly leaped at him and attacked him with the scythe, which he evaded. Emeterio then ascended the

stairs to push open the bamboo door on the porch leading to their living room. The door partially opened after Emeterio slammed it several times. Appellants wife and children screamed and cried in fear. Appellant held and twisted his brothers wrist to disarm him of the scythe. They grappled for the scythe while in the porch, then tumbled down the stairs. When they hit the ground, the victim was dead. Appellant did not know how many times he hit his brother or how many wounds he inflicted. He said he was not in a normal state of mind. Seeing that he had killed his brother, appellant threw the scythe under his house and went to the barangay captain to surrender. His spouse largely corroborated appellants version of the first round of the fratricidal affray. She claimed, however, that she did not see how the victim was killed as they were inside the house and she, as well as her children, had their eyes closed in shock and fear. Appellant denied owning the scythe found by the barangay captain beneath his house. He did not know why his name was engraved on the wooden handle of said scythe. He was sure, however, that it was the same scythe that his brother was carrying during the incident. Appellant explained that he had a previous misunderstanding with the victim over the purchase of a horse from his cousin Doroteo Oliver on installment basis. Emeterio wanted to buy the horse, but appellant bought it ahead of him, which caused the former to resent him. The court below disbelieved appellants version of the incident and decided as follows: WHEREFORE, judgment is hereby rendered finding the accused Alberto Dano y Jugilon guilty beyond reasonable doubt of the crime of Murder, qualified by treachery, defined and penalized under Article 248 of the Revised Penal Code, and there being no proof of any modifying circumstances either to aggravate or mitigate the liability, hereby sentences said accused to suffer the penalty of reclusion perpetua; to pay the heirs of the deceased the sum of P50,000.00 by way of indemnity for the death of said victim; P3,000.00 as actual damages, compensatory damages of P2,000.00 by way of unrealized earnings and to pay the costs. SO ORDERED. On August 2, 1994, appellant seasonably filed his notice of appeal. He assigns the following errors: I THE LOWER COURT ERRED IN MAKING A SWEEPING CONCLUSION THAT TREACHERY EXISTS IN THE CASE AT BAR. II THE LOWER COURT ERRED IN DISREGARDING, IF NOT TOTALLY IGNORING, THE ACCUSEDS CLAIM OF SELF-DEFENSE AND/OR DEFENSE OF RELATIVES, OR AT LEAST INCOMPLETE SELF-DEFENSE AND/OR DEFENSE OF RELATIVES. III

THE LOWER COURT ERRED WHEN IT SAID THAT EXHIBIT E OF THE PROSECUTION WAS NOT OBJECTED TO BY THE DEFENSE. IV THE LOWER COURT ERRED IN RELYING TOO MUCH CREDENCE (sic) TO THE TESTIMONY OF TERESITA DANO WHO DECLARED THAT THE SCYTHE (EXHIBIT D FOR THE DEFENSE ON ONE HAND, WHILE EXHIBIT 4 FOR THE PROSECUTION) WAS OWNED BY THE ACCUSED AND NOT THAT OF THE VICTIM. Simply stated, the pertinent issues for our consideration are: (1) Did the trial court err in admitting the extrajudicial confession of the accused? (2) Did the court a quo err in failing to appreciate appellants defense of self-defense and/or defense of relatives, or at the least incomplete self-defense and/or defense of relatives? (3) Did it err in convicting appellant of murder qualified by treachery and imposing the penalty therefor? On the first issue, appellant avers that it was error for the trial court to give weight to the admissions made by appellant during custodial investigation (Exhibit E). Appellant contends that his constitutional and statutory right to counsel during custodial investigation was violated when the police took his statements without a lawyer to assist him. He further argues that the trial court should have declared his statements before the police inadmissible when they were objected to during the trial. A person under investigation for the commission of an offense is guaranteed the following rights by the Constitution: (1) the right to remain silent; (2) the right to have competent and independent counsel of his own choice, and to be provided one if he cannot afford the services of counsel; and (3) the right to be informed of these rights. These rights cannot be waived except in writing and in the presence of counsel. A confession to be admissible must satisfy the following requirements: (1) the confession must be voluntary; (2) the confession must be made with the assistance of competent and independent counsel; (3) the confession must be express; and (4) the confession must be in writing. In convicting the accused of the offense charged, the trial court held: Accuseds testimony on the witness stand however, contradicts his version appearing on the police blotter of the police station of Margosatubig dated March 16, 1994, where he admitted the killing of his younger brother Emeterio Dano as the latter was drunk and provoked him for (sic) a scythe duel right downstairs of his house that prompted him to get his scythe and come down from his house and allegedly boxed first his brother and subsequently hacked several times as he was already commanded by evil thoughts.

During the formal offer of evidence by the prosecution, defense counsel admitted the authenticity of the extract of above entry in the police blotter (Exhibit B, prosecution) containing the foregoing recital as testified to by SPO4 Jesus Reales. Such entry in the police blotter when not objected to, is presumed to have been accomplished in the regular performance of official duties by the police officer who made the entry, hence is entitled to full faith and credit. It having been entered at the time when the accused had just surrendered to the authorities in a remorseful attitude and in a spontaneous manner free of any extraneous influence and coaching of a lawyer, the same entry carries great weight and high probative value, in the absence of any proof of tampering or alteration thereof. This Court therefore considers the recital in said entry more credible and easy to believe, than the self-serving version of the accused given on the witness stand which is more a product of an after-thought and concocted story than an honest and truthful version of what actually happened. We have carefully scrutinized the records including the List of Exhibits for the Prosecution and the prosecutions offer of evidence and nowhere find mention of Exhibit E. What we find offered by the prosecution as evidence is the testimony of SPO3 Jesus Reales on the authenticity of the entries on the police blotter. The blotter recorded the incident immediately after the crime and another entry in the morning, recorded what was observed on the scene of the crime including a description of the prostrate body of the accused. We also noted in the records that the defense objected to the admission of the testimony of SPO3 Reales because said witness is incompetent to testify as to the entryhaving admittedthat he was not one who entered that (sic) events in the police blotter andthat he has no knowledge when the entries in the police blotter were made. Moreover, we noted that SPO3 Reales admitted that as an assistant investigator, he was familiar with investigation procedures. Under cross-examination, he also admitted appellant was interrogated by the police regarding the incident, but there was no showing whatsoever appellant was assisted by counsel during custodial investigation. Considering the foregoing circumstances, we find merit in appellants claim that his constitutional rights were violated. First, the trial court erred when it relied on the supposed extrajudicial confession of appellant in the police blotter. Extrajudicial confessions must conform to the requirements of the Constitution. A suspects confession, whether verbal or non-verbal, when taken without the assistance of counsel without a valid waiver of such assistance regardless of the absence of coercion or the fact that it had been voluntarily given, is inadmissible in evidence, even if appellants confession were gospel truth. We also find the courts reliance on the presumption that official duty has been regularly performed misplaced. This presumption cannot by itself prevail over positive averments concerning violations of the constitutional rights of an accused. It was also error for the trial court to have considered and relied on the questioned entry in the police blotter, given the failure of the prosecution to offer it in evidence. Evidence which has not been formally offered cannot be considered by courts. There is valid reason, therefore, to strike down the lower courts reliance on the assailed police blotter entry in convicting appellant. All these, however, do not suffice to acquit appellant of the offense charged. Appellant admitted killing the victim before the barangay captain, who is neither a police officer nor a law

enforcement agent. Such admission, even if done without the assistance of a lawyer, is not in violation of appellants constitutional rights. The constitutional requirements on custodial investigation do not apply to spontaneous statements made in a voluntary manner whereby appellant orally admitted authorship of the crime. What the Constitution proscribes is the compulsory or coercive disclosure of incriminating facts. On the second issue, appellant pleads self-defense and/or defense of relatives. When an accused invokes self-defense, the onus probandi to show that the killing was justified shifts to him. Even if the prosecution evidence were weak, it could not be readily dismissed after the accused had openly admitted his responsibility for the killing. Self-defense, like alibi, is inherently a weak defense, which can easily be concocted. For self-defense to prosper, appellant must prove by clear and convincing evidence the following elements: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself. In order that defense of a relative may be appreciated, the following requisites must concur: (1) unlawful aggression by the victim; (2) reasonable necessity of the means employed to prevent or repel it; and (3) in case the provocation was given by the person attacked, that the person making the defense took no part therein. Appellant faults the trial court when it concluded that unlawful aggression was absent at the time of the killing. He insists that the killing of and the attack by the victim were nearly simultaneous, without appreciable interval of time. Assuming that the number of wounds sustained by the deceased negated self-defense and/or defense of relative, according to appellant, the trial court erred in not appreciating incomplete self-defense, given the fact that the other elements of the justifying circumstances involved were present, namely, unlawful aggression on the part of the victim and lack of sufficient provocation on appellants part. The Solicitor General counters that appellants defenses cannot be appreciated since the victim was already unarmed when killed. There was no more danger to the life and limb of appellant or to the members of his family. Unlawful aggression was absent at the time of the killing. Furthermore, the appellant was unscathed in the tumult, while he was able to inflict twelve (12) hacking wounds on the victim. This fact belies appellants theory and reveal an intent to kill the victim. Inasmuch as appellant failed to prove there was no unlawful aggression, there cannot be any self-defense, complete or incomplete, according to the Solicitor General. For self-defense or defense of a relative, whether complete or incomplete, to be appreciated, the element of unlawful aggression is indispensable. If there is no unlawful aggression, there is nothing to prevent or repel. For unlawful aggression to be appreciated, there must be a positively strong act of real aggression, and not merely a threat or an intimidating stance. Thus, the accused who claims self-defense or defense of relative must positively establish that there was an actual, sudden, and unexpected attack or imminent danger thereof, on the part of the victim.

In the instant case, the trial court found: Despite the long scuffle over the possession of the scythe with his deceased brother which started from the porch of their house up to the ground near the stairway, accused has (sic) never sustained a single wound on his body, not even a scratch or a bruise. In contrast, the deceased sustained twelve (12) multiple hacking wounds all over his bodyHe admitted that from the time he gained control and possession of the scythe from his brother, the deceased was already armless (sic) and there was no more danger to himself coming from his brother. The question of whether appellant acted in self-defense is essentially a question of fact. In the instant case, the trial court found that appellant was able to disarm the victim before the killing. It was also established that, despite appellants assertion that he engaged in a life or death struggle for the possession of the weapon during which the combatants fell from the porch to ground, he incredibly sustained nary a scratch or injury. By contrast, the victim suffered twelve (12) ghastly wounds, some of which were at his back. In view of these findings, the evidence for the defense cannot be characterized as clear and convincing. The deceased and appellant were allegedly wrestling all over the crime scene for possession of the weapon, yet the victim sustained wounds in the back. The number, location, and gravity of the wounds that the victim sustained do not support the claim of unlawful aggression on his part at the time he was killed. If appellant were merely defending himself, he did not have to hack the deceased a dozen times. Moreover, appellants inability to explain why he came out of the fierce struggle unscathed seriously and hopelessly damages his credibility. Thus, in the absence of any showing that the factual findings were reached arbitrarily or without sufficient basis, appellate courts accord the highest respect and even finality to findings of fact by trial courts. We share the view that appellant was able to disarm his assailant before the latter was killed. Then there was no longer any real peril to the life or safety of the appellant or his family when the victim lost his weapon. When unlawful aggression which has begun earlier no longer exists, the one making the defense has no right to kill or even wound the former aggressor. To successfully invoke self-defense and defense of relative, appellant must prove by evidence most satisfactory, the concurrence of all the elements of self-defense and/or defense of a relative, the most important of which is unlawful aggression on the victims part. Absent unlawful aggression, there can be no self-defense or defense of a relative, complete or incomplete, and conviction of appellant must follow. On the third issue. Appellant submits the qualifying element of treachery is absent in the instant case. He relies on People v. Butler, 120 SCRA 281(1983) where we held that treachery is not present where accused and victim grappled with each other and People v. Maguddatu, 124 SCRA 594 (1983), where we ruled that treachery cannot be appreciated where the killing was made on the spur of the moment. To this the Solicitor General agrees. The Solicitor General points out that treachery cannot be appreciated because the evidence on the record is bereft of any showing of the precise manner in which the killing was done. He cites People v. Timple, 237 SCRA 52 (1994). Relying on People v. Cedenio, 233 SCRA 356 (1994), he argues that treachery cannot be presumed but must be

proved by evidence as convincing and conclusive as the killing itself. Thus, he concludes that appellant should only be convicted of the crime of homicide. Treachery occurs when the accused employs means, methods, or forms in the execution thereof without risk to himself arising from the defense which the offended party might make. There is treachery where the accuseds attack was so sudden and launched from behind that the victim was caught off guard without an opportunity to defend himself. The trial courts findings with respect to the presence of treachery cannot be sustained. For treachery to be appreciated, the following must be proven: (1) the employment of means of execution which give the person assaulted no opportunity to defend himself or retaliate; and (2) the deliberate or conscious adoption of such means adopted by the assailant. In this case, there was no showing whatsoever by the prosecution that appellant deliberately adopted the means of attack used to kill the victim. Note that it has been established that there was, initially, unlawful aggression on the part of the deceased. Appellant in defending himself from the deadly assault was able to grab the weapon of the victim, disarm him, and kill him. The circumstances of the assault show that appellant did not have the luxury of time to deliberate and contemplate the manner or method of killing the victim. Moreover, the deceased had deliberately provoked and attacked appellant. For treachery to be appreciated there must not be even the slightest provocation on the part of the victim. Absent the qualifying circumstance of treachery, the offense committed is not murder but only homicide under Article 249 of the Revised Penal Code. Lastly, we find that the trial court failed to appreciate two mitigating circumstances in appellants favor, namely: (1) that sufficient provocation or threat on the part of the offended party immediately preceded the killing, and (2) that appellant voluntarily surrendered himself to a person in authority or his agents. The record is categorical that appellant surrendered to the barangay captain of Tiguian after the incident. A barangay leader is a person in authority. The penalty for homicide is reclusion temporal. Where there are two mitigating circumstances and no aggravating circumstances present, the court shall impose the penalty next lower to that prescribed by law in the period that it may deem applicable. The penalty next lower is prision mayor. Applying the Indeterminate Sentence Law, the maximum penalty to be imposed shall be taken from the medium period of the imposable penalty which is prision mayor, while the minimum shall be taken from the penalty next lower in degree which is prision correcional in any of its periods. Prision mayor in its medium period is eight (8) years and one (1) day to ten (10) years. Prision correcional in its maximum period is four (4) years, two (2) months, and one (1) day to six (6) years. WHEREFORE, the decision appealed from is hereby MODIFIED. Appellant Alberto Dano y Jugilon is found GUILTY of the crime of HOMICIDE and consequently, sentenced to suffer an indeterminate prison term of four (4) years, two (2) months, and one (1) day of prision correcional as minimum to eight (8) years and twenty (20) days of prision mayor as maximum, and to pay the heirs of Emeterio Dano P50,000.00 as indemnity for his death and P3,000.00 for burial expenses.

No pronouncement as to costs. SO ORDERED. Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

VELASCO, JR., J.:

This is an appeal from the Decision dated December 19, 2007 in CA-G.R. CR-H.C. No. 00163 of the Court of Appeals (CA), which affirmed the Decision dated July 16, 2002 in Criminal Case No. 9594-99 of the Regional Trial Court (RTC), Branch 8 in Malaybalay City.

Accused-appellant was charged in an information dated March 29, 1999, which reads: That on or about the 27th day of February 1999, in the evening, at CMU, Musuan, [M]unicipality of Maramag, Province of Bukidnon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill by means of treachery and evident premeditation with the use of a sharp bladed instrument with which he was conveniently provided, did then and there willfully, unlawfully and criminally attack, assault and hack GAUDENCIO PERATER, mortally wounding the latter which injury caused the instantaneous death of GAUDENCIO PERATER; to the damage and prejudice of the legal heirs of GAUDENCIO PERATER in such amount as may be allowed by law. CONTRARY TO and in violation of Article 248 of the Revised Penal Code, as amended by R.A. 7659.

On July 16, 2002, the trial court found accused-appellant guilty of murder, the dispositive portion of which reads:

WHEREFORE, in view of all the foregoing, the court finds the accused Bienvenido Mara y [Bolaquea] guilty beyond reasonable doubt of the crime of

murder. Accused is hereby sentenced to the penalty of reclusion perpetua. Accused is ordered to indemnify the heirs of Gaudencio Perater the amount of Seventy Five Thousand (P75,000.00) Pesos; and further to pay Twenty Six Thousand and Four Hundred (P26,400.00) Pesos as actual expenses and to pay the costs. The accused is hereby given full credit for his preventive detention. SO ORDERED.

Accused-appellant filed a Notice of Appeal dated August 2, 2002, from the aforementioned decision to this Court. The case was transferred to the CA in a resolution dated September 20, 2004, following the ruling in People v. Mateo.

The CA modified the trial courts decision, the dispositive portion of which reads:

WHEREFORE, the appealed Decision finding appellant Bienvenido Mara y Bolaquea guilty of the crime of Murder, and to suffer the penalty of Reclusion perpetua, is hereby AFFIRMED, WITH THE MODIFICATION that appellant is directed to pay the heirs of the victim the following amounts: P 50,000.00 as civil indemnity; P 26,400.00 as actual damages; P 50,000.00 as moral damages, and; P 25,000.00 as exemplary damages. SO ORDERED. The Facts

The facts, as found by the RTC and reaffirmed by the CA, were culled from the testimonies of witnesses Marcelino Balos and his nephew, Ramel Balos. Marcelina Perater, widow of Gaudencio Perater, the victim, was presented to prove the amount of actual damages from burial expenses.

Marcelino testified that the victim and accused-appellant were among the visitors in his house on February 27, 1999. He said they were seated at the table, he being seated at the right side of the victim, and a certain Mario Mara seated at the left side of the victim, when suddenly accused-appellant hacked the victim on the right side of his neck with a bolo. Marcelino wrested

the bolo from accused-appellant and gave it to his wife. He also testified that there were no words exchanged between accused-appellant and the victim prior to the attack.

Ramel testified that he was in the house of his uncle on the night of February 27, 1999 along with several other guests to celebrate his birthday. He confirmed that Mario was seated at the left side of the victim and his uncle at the victims right side. He testified that accusedappellant had been going in and out of the house. Ramel stated that he heard a snapping sound and when he looked, he saw accused-appellant holding a bolo, and the sound was the hacking done by accused-appellant on the victims neck. Ramel then saw his uncle take away the bolo from accused-appellant.

In his defense, accused-appellant states that the trial court erred in appreciating the qualifying circumstance of treachery, and reiterates that he acted in self-defense.

As to his version of events, accused-appellant claimed he had been drinking with Marcelino and Ramel when the victim arrived and asked where Mario, brother of accusedappellant, was. When accused-appellant replied that he had not yet returned from work, the victim then told him, This is your yard, are you going to side with your elder brother [referring to Mario] whose teeth I have broken? The victim then pulled a knife and pointed to accusedappellant and his companions, saying, Who among you here is offended, let him stand. Ramel then punched the victim, knocking him down. Marcelino then ran to the kitchen, telling the victim, So you want killing? and got hold of a bolo. Accused-appellant then grappled with Marcelino to prevent him from attacking the victim, and was able to wrest the bolo away from Marcelino. Marcelino then warned accused-appellant that the victim was about to stab him. Accused-appellant swung the bolo towards his back, hitting the victim on his neck. He then threw the bolo away, and embraced the victim, shouting for help. They placed the body of the victim on a bench, and Marcelino reported the incident to the police.

Our Ruling

As to the claim of accused-appellant that he acted in self-defense, it cannot be appreciated. There is only his testimony that there was an attempt by the victim to stab him, as opposed to the testimonies of the two witnesses presented against him. The credibility of the witnesses had been weighed by the trial court, and it found the testimonies of Marcelino and Ramel to be more convincing. As a rule, the appellate court gives full weight and respect to the

determination by the trial court of the credibility of witnesses since the trial court judge has the best opportunity to observe the demeanor of the witness.

One who admits killing or fatally injuring another in the name of self-defense bears the burden of proving: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person claiming self-defense. By invoking self defense, the burden is placed on the accused to prove its elements clearly and convincingly. While all three elements must concur, selfdefense relies first and foremost on proof of unlawful aggression on the part of the victim. If no unlawful aggression is proved, no self-defense may be successfully pleaded. Accused-appellant has failed to discharge his burden of proving unlawful aggression. His version of the events is uncorroborated, and his testimony has been found to be less credible by the trial court. The victim was not in the process of attacking accused-appellant from behind, but rather had been seated at a table during a birthday celebration. Accused-appellant was the instigator, not the victim, Gaudencio. As the element of unlawful aggression on the part of the victim is absent, accused-appellants claim of self-defense must fail.

Regarding the qualifying circumstance of treachery, accused-appellant argues that the trial court erred in appreciating it, and that there was in fact no treachery present in the attack.

His argument lacks merit. The essence of treachery is the sudden and unexpected attack by the aggressors on unsuspecting victims, depriving the latter of any real chance to defend themselves, thereby ensuring its commission without risk to the aggressors, and without the slightest provocation on the part of the victims. From the evidence gleaned by the trial court, the facts are enough to show the treachery employed by accused-appellant. The attack was sudden, as testified by the witnesses, and unexpected, considering it happened at a birthday celebration, without any warning. No provocation was proved on the part of the victim, as the testimony of accused-appellant that the victim was about to attack him was uncorroborated and not given weight by the trial court. Thus, the victim had no inkling that an attack was forthcoming and had no opportunity to mount a defense.

What is decisive is that the attack was executed in a manner that the victim was rendered defenseless and unable to retaliate. At the birthday celebration where the attack occurred, the victims guard would be down, even assuming that there was bad blood between him and accused-appellant. He would not have expected his life to be in danger in such surroundings, and accused-appellant took advantage of this.

As treachery attended the killing of Gaudencio, the crime was correctly found to be murder under paragraph 1 of Article 248 of the Revised Penal Code.

The CA modified the ruling of the trial court, correctly setting the civil indemnity at PhP 50,000, with the addition of moral and exemplary damages. Moral damages are justified under par. 1 of Art. 2219 of the Civil Code, which provides that moral damages may be recovered from a criminal offense resulting in physical injuries. The addition of exemplary damages is also justified. When a crime is committed with an aggravating circumstance, either qualifying or generic, an award of exemplary damages is justified under Art. 2230 of the Civil Code.

As accused-appellant has failed to show any error in the ruling of the CA, we must uphold its decision.

WHEREFORE, we AFFIRM the CA Decision dated December 19, 2007 in CA-G.R. CR-H.C. No. 00163. No pronouncement as to costs.

SO ORDERED. ISAIAS V. DIZON, Appellant. Promulgated:

October 10, 2008 x --------------------------------------------------x

DECISION

CARPIO MORALES, J.

By Decision of October 31, 2006, the Court of Appeals affirmed in toto the January 10, 2005 decision of Branch 38 of the Regional Trial Court (RTC) of Maddela, Quirino, convicting Isaias Dizon (appellant) of Murder, the dispositive portion of which RTC decision reads:

WHEREFORE, premises considered, judgment is hereby rendered finding ISAIAS DIZON GUILTY beyond reasonable doubt of Murder for which he should suffer the penalty of reclusion perpetua and to pay the heirs of JETO SANTOS P75,000.00 as civil indemnity; P50,000.00 as moral damages; P14,000.00 as actual expenses; and P5,000.00 as temperate damages. However, his preventive imprisonment shall be fully credited to him in the service of his sentence pursuant to Art. 29 of the Revised Penal Code, as amended. SO ORDERED.

On December 25, 2001, the lifeless body of Jeto Santos (the victim) was found floating in a creek in Sangbay, Nagtipunan, Quirino. As eyewitness accounts pointed to Rodel Dizon (Rodel), herein appellant Isaias Dizon, and Virgilio Pascua (Pascua) as the last persons seen with the victim, the three were immediately arrested and charged before the Office of the Provincial Prosecutor.

By Resolution of January 29, 2002, the Provincial Prosecutor found probable cause to hale only appellant into court. Thus appellant was charged for Murder in an Information the accusatory portion of which reads:

That on or about 10:00 oclock to 11:00 o clock in the evening of December 24, 2001 in Sangbay, Nagtipunan, Quirino, Philippines and within the jurisdiction of this Honorable Court, the said accused with intent to kill and with treachery did then and there willfully, unlawfully and feloniously attack, assault and use personal violence upon the person of JETO SANTOS by hitting thrice the latter in the head with the use of stones, thereby inflicting upon the latter mortal wounds which were the direct and immediate cause of his death thereafter. CONTRARY TO LAW.

From the account of prosecution witness, Rodel, whose grandfather is a cousin of herein appellant, the following transpired:

In the evening of December 24, 2001, while he, Pascua and appellant were drinking at a videoke bar, the victim entered and started dancing along to the music. At around 10:00 oclock he went outside to urinate at an elevated area, with no enclosure, illuminated by the lights from the bar and adjacent to the downward path towards a creek.

While urinating, he saw appellant and the victim exit from the bar and proceed towards the creek which was about 15-20 meters away from the bar. Upon reaching the stone-littered edge of the creek, appellant picked up a fist-sized stone with which he smashed the face of the victim who, as a result fell down. He thus rushed to the two and tried to pacify appellant. Unrestrained, appellant attempted to again hit the victim by picking up another stone, oblong in shape whose length was approximately that of a long coupon bond, but he (Rodel) was able to arrest the attempt and the stone fell on the ground. Appellant thereupon shoved him, picked up the same stone and succeeded in dropping it at the already sprawled victim. Realizing that he could no longer pacify appellant, he ran away and proceeded to his grandmothers house.

Appellant denied the charge. Admitting that he was at the bar with Rodel and Pascua before the incident, he claimed that he went home at around 8:45 in the evening at the behest of his wife Mary Jane.

Mary Jane corroborated appellants testimony, adding that at around 11:00 in the evening, she noticed Rodel knocking on the door of her neighbor Romy Dizon, saying Uncle,

uncle, please open up because I have killed; that when nobody responded, Rodel went to their (appellants and Mary Janes) house and pleaded Lola, lola, please open up because I have killed; and that when she opened the door, Rodel asked for money from her to which she obliged, but she did not ask who the victim was.

The trial court, as stated early on, convicted appellant by Decision of January 10, 2005.

In convicting appellant, the trial court credited, among other things, Rodels positive identification of appellant absent a showing that he was actuated by an ill-motive to testify against his grandfather, herein appellant. And the trial court noted the testimony of Dr. Perla Olay as corroborative of Rodels testimony that the victim was hit in the head. In his Brief filed before the Court of Appeals, appellant faulted the trial court: I . . . in finding [him] guilty beyond reasonable doubt of the offense charged[; and] II . . . in appreciating the qualifying circumstance of treachery.

The appellate court in upholding the trial courts finding that treachery attended the killing held: The act of Accused-Appellant in hitting the victim again with a stone knowing fully well that the latter is already sprawled on the ground, with his hands spread [out], insured that the victim had no opportunity to defend or retaliate against him. Moreover, the deliberate throwing of stones, thereafter by the Accused-Appellant, with the sizes of a fist and a long coupon bond, for a number of times simply tend[s] to show that the Accused-Appellant had chosen such manner of execution. Additionally, treachery can exist even if the attack is frontal, if it is sudden and unexpected, giving the victim no opportunity to defend himself against such attack. Thus, the requisites to qualify the crime to murder through treachery are met in the instant case. (Underscoring supplied)

In determining the existence of treachery, the Court considers the manner of execution of the criminal act which renders it impossible for the victim to defend himself. Treachery can thus exist even if the attack is frontal if it is sudden and unexpected. While in Rodels Sworn Statement before the police given soon after his arrest, he declared that there was an altercation before appellant picked up a stone and hit the victim with it, murder is not ruled out. The appellants picking up of a stone and crashing it upon the victim was so sudden. It bears noting that appellants attack was directed to the head of the victim, indicating that he intended to render him unconscious, if not to kill him instantly, to thus render him defenseless. The gravity of the head wounds suffered by the victim seven lacerated wounds two of which exposed the brain tissues, hence fatal according to Dr. Olay, should confirm such intent. The identification of appellant as the malefactor by his grandson Rodel should a fortiori be accorded much weight, for judicial notice is taken of the natural hesitancy of most people to get involved in a criminal case, which is naturally heightened in Rodel because appellant is a relative. As for appellants alibi, for it to prosper, it is not enough to prove that he was somewhere else when the offense was committed. It must likewise be proven that he was somewhere else that he could not have been physically present at the place of the crime or its immediate vicinity at the time of its commission. As testified by his wife, Mary Jane, however, the bar was only 50 meters away from their house, hence, it was not impossible for him to be at the locus criminis at the time of the commission of the crime. In fine, appellants appeal fails. A word on the civil aspect of the case. In line with prevailing jurisprudence, the award of civil indemnity is reduced from P75,000 to P50,000. The award of temperate damages is deleted, actual damages having already been awarded. The Court awards, however, exemplary damages in the amount of P25,000, an aggravating circumstance treachery being present. WHEREFORE, the Court of Appeals Decision of October 31, 2006 is AFFIRMED with the following MODIFICATION on the civil aspect of the case (1) the award of civil indemnity is reduced from P75,000 to P50,000; (2) the award of temperate damages is deleted and; (3) exemplary damages is awarded to the heirs of the victim in the amount of P25,000. Costs against accused-appellant. SO ORDERED PEOPLE OF THE PHILIPPINES, plaintiff, vs. WILFREDO BAUTISTA Y NIELES, accusedappellant. DECISION

BELLOSILLO, J.: WILFREDO BAUTISTA y NIELES appeals from the decision of the court a quo finding him guilty of murder and imposing upon him a prison term of reclusion perpetua. No award for civil indemnity however was made in view of the reservation of the heirs of the victim to file a separate civil action. The Information alleged that on 2 April 1992, in Pasay City, accused-appellant Wilfredo Bautista y Nieles and the other accused, namely, Gayak Usman y Adzed, Richard Doe, John Doe, Peter Doe, William Doe, Vincent Doe and Edward Doe, in conspiracy with one another, with treachery, evident premeditation and taking advantage of superior strength, feloniously shot Alfonso Davila y Velasco with a firearm hitting him at the back of his head which caused his death. The evidence shows that at ten oclock in the evening of 2 April 1992 victim Alfonso Davila y Velasco, a flight steward of the Philippines Airlines (PAL), went to the Inflight Center of PAL at the MIA Road, Pasay City, to inquire about his flight schedule. Before his car could enter Gate 1 it was stopped by accused Gayak Usman y Adzed and other security guards of the Asian Security and Investigation Agency assigned in that area. Usman told the victim that he could not enter the gate because he had no PAL sticker. Davila showed Usman his ID placed in his wallet and thrust it on his face. The latter simply told Davila that he should have pinned his ID on his chest. The verbal confrontation however continued. At this point, accused-appellant Wilfredo Bautista, another security guard of the Asian Security and Investigation Agency assigned at the entrance for pedestrian at Gate 1, approached Usman and Davila and remarked, Sir, bakit nanampal ka ng guardiya? The victim retorted, Bakit ka nakikialam. Itong kausap ko. Accused-appellant then took the shotgun slung on the shoulder of Usman and stepped back. The argument between Usman and Davila continued. Then accused-appellant went to the back of the car of Davila and cocked the shotgun. As he went near Davila the latter said, Putang ina ka. Huwag kang makikialam dito. Then accused-appellant fired at the victim hitting him on the left side of his head which caused his death. Dr. Valentine T. Bernales, NBI Medico-Legal Officer, conducted a post mortem examination of the victim. He gave the cause of death as gunshot wound on the head. On 22 March 1993 the accused appealed. But for failure of his counsel to file his brief despite three (3) extensions granted him this Court dismissed his appeal. However, upon motion for reconsideration, this Court on 3 August 1994 treated the motion as appellants brief and directed the Solicitor General to file appellees brief. In his motion for reconsideration, appellant contends that he should have only been charged with and convicted for homicide and not murder. He submits that the victim slapped with his wallet containing his ID appellants fellow security guard Usman, who was one of the accused before the trial court, which incident caught appellants attention and because of the victims gauche remarks he (appellant) lost his composure and shot the victim. Appellant also argues that treachery, conspiracy and abuse of superior strength were not established by the prosecution because the shooting was accidental and/or committed under a mistake of fact that the victim

was about to reach for a gun inside his car. Further, appellant alleges that if he should be made to answer for his act he should only be guilty of homicide and entitled to the mitigating circumstances of voluntary surrender, passion and obfuscation and/ or incomplete self-defense. The arguments of accused-appellant are not without merit. Once accused-appellant has admitted that he killed the victim, the burden is on him to establish the presence of any circumstance which may relieve him from responsibility or mitigate the offense committed. To prove justification the accused must rely on the strength of his own evidence and not on the weakness of that of the prosecution, for even if it be weak, it could not be disbelieved after the accused has admitted the killing. In a plea of self-defense, it must be shown that there was a previous unlawful aggression that placed the life of the accused in danger and forced him to inflict more or less severe wounds upon his assailant, employing therefor reasonable means to resist the unprovoked attack of which he was the object. Accused-appellant failed to prove the presence of these circumstances. Instead, he presented inconsistent allegations as to why he killed the victim. Accused-appellant claims that he acted under a mistake of fact that the victim was about to get a gun from his clutch bag inside the car. At the same time he also argues that he lost his equanimity when he saw the victim slap his co-accused security guard and when he (appellant) tried to intervene he was also rudely treated by the victim. The trial court found that the allegation about the presence of a clutch bag inside the car is not supported by the evidence. In fact, all the personal belongings of the deceased in his car were inventoried and the alleged clutch bag was not one of them; neither was there a gun or any other weapon inside his car. These findings of fact bear great weight and consideration supported as they are by the evidence on record. The claim of appellant that the act of the victim in reaching for a clutch bag and slapping his fellow security guard constitute unlawful aggression is devoid of merit. The aggression must be real or at least imminent and not merely imaginary. A belief that a person is about to be attacked is not sufficient. Even an intimidating or threatening attitude is by no means enough. A mere push or shove not followed by other acts placing in real peril the life or personal safety of the accused is not unlawful aggression. In the instant case, the victim slapped another person and not accused-appellant. The slapping could not therefore have given him a well grounded or reasonable belief that he was in imminent danger of death or great bodily harm to compel him to defend himself by killing the victim. If no unlawful aggression attributed to the victim is established there can be no self-defense, complete or incomplete. Notwithstanding the failure of accused-appellant to prove self-defense, the Court finds him guilty only of homicide and not murder as found by the trial court. Not a single circumstance alleged in the information qualifying the crime to murder is present. We find no evident premeditation in the killing of the victim. The records show that when appellant went near the victim, who was then arguing with a fellow security guard he got the latters shotgun, walked towards the rear of the car of the victim, cocked his firearm and suddenly shot the latter. There was no proof of the time when the intent to commit the crime was engendered in the mind of accused-appellant, the motive and all those facts and antecedents

which when combined would show that the crime was knowingly premeditated or that accusedappellant acted not only with a pre-existing design, but with that cold and deep meditation and tenacious persistence in the accomplishment of his criminal purpose. No abuse of superiority was established. The fatal shot was fired by only one of two (2) accused, there being no proof that they cooperated to take advantage of their superior strength. The fact that they did not conspire to kill the deceased implies that they did not jointly exploit their superior strength. Treachery was conspicuous in its absence. The victim knew of the oncoming danger when appellant approached him and took Usmans shotgun. That was why the victim asked appellant, Bakit ka nakikialam. Itong kausap ko. And as he cocked his gun and walked towards the victim the latter even remarked, Putang ina ka. Huwag kang makikialam dito. The circumstance that an attack was sudden and unexpected to the person assaulted did not constitute the element of alevosia necessary to raise homicide to murder, where it did not appear that the aggressor consciously adopted such mode of attack to facilitate the perpetration of the killing without risk to himself. Treachery cannot be appreciated if the accused did not make any preparation to kill the deceased in such manner as to insure the commission of the killing or to make it impossible or difficult for the person attacked to retaliate or defend himself. When it does not appear that the shooting was premeditated nor that the accused had consciously chosen a method of attack directly and especially to facilitate the perpetration of the homicide without danger to himself, and his decision to shoot the victim seemed to be so sudden and the position of both the victim and the accused was entirely accidental, treachery cannot be imputed to the appellant. Moreover, there is no treachery when the killing resulted from a verbal altercation between the victim and the assailant such that the victim must have been forewarned of the impending danger. We cannot appreciate the circumstance of passion and obfuscation invoked by appellant to mitigate his criminal liability. The obfuscation must originate from lawful feelings. The turmoil and unreason which naturally result from a quarrel or fight should not be confused with the sentiment or excitement in the mind of a person injured or offended to such a degree as to deprive him of his sanity and self-control, because the cause of this condition of mind must necessarily have preceded the commission of the offense. However, the voluntary surrender of accused-appellant to a police authority four (4) days after the commission of the crime as found by the trial court may be considered attenuating. Under Art. 249 of the Revised Penal Code, homicide is punishable by reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law and appreciating the mitigating circumstance of voluntary surrender which is not offset by any aggravating circumstance, the maximum of the penalty shall be taken from the minimum period of reclusion temporal, the range of which is twelve (12) years and one (1) day to fourteen (14) years and eight (8) months, while the minimum shall be taken from the penalty next lower in degree which is prision mayor, in any of its periods, the range of which is six (6) years and one (1) day to twelve (12) years.

WHEREFORE, the decision appealed from is MODIFIED and accused-appellant WILFREDO BAUTISTA y NIELES is declared GUILTY of HOMICIDE, not murder, and sentenced to an indeterminate prison term of six (6) years, four (4) months and ten (10) days of prision mayor minimum as minimum, to twelve (12), years six (6) months and twenty (20) days of reclusion temporal minimum as maximum. In view of the reservation to file separate civil action, no civil indemnity is awarded. SO ORDERED. Padilla (Chairman), Vitug, and Kapunan, JJ., concur.