PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

 HERSON
FLORAGUE y ESTALILLA, CHRISTOPHER FLORAGUE, and
LEONARDO ALCANTARA, accused,
HERSON FLORAGUE y ESTALILLA, accused-appellant.

DECISION
MENDOZA, J.:

This is an appeal from the decision,  dated April 30, 1998, of the Regional Trial
[1]

Court, Branch 67, Bauang, La Union, insofar as it finds accused-appellant Herson

Florague y Estalilla guilty of murder and sentences him to suffer the penalty
of reclusion perpetua and to indemnify the heirs of the victim, Egilberto Estalilla, in
the amount of P400,000.00.
Accused-appellant, together with accused Christopher Florague and Leonardo
Alcantara, was charged with the crime of murder under the following information

That on or about the 13th day of August 1995, at Brgy. Gana, Municipality of Caba,
Province of La Union, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused conspiring, confederating, and mutually helping one
another, with deliberate intent to kill, with treachery and abuse of superior strength
did then and there wilfully, unlawfully and feloniously attack, assault and shoot one
EGILBERTO ESTALILLA with the use of caliber .38 handgun inflicting upon him
gunshot wounds which directly caused his death, to the damage and prejudice of the
heirs of the victim.

CONTRARY TO LAW. [2]

When arraigned on February 6, 1996, he and the other accused pleaded not guilty
to the crime charged  whereupon trial proceeded.
[3]

In support of the allegations of the information, the prosecution presented six

witnesses: Villie Alajari, Johnny Cartas, Jr., Dominic Tabafunda, Rodolfo Dulay, Dr.
Arturo G. Llavore, and Agripina Estalilla, whose testimonies are as follows:
Villie Alajari, testified that Egilberto Estalilla was in her house in Barangay San
Benito, Norte, Aringay, La Union on August 13, 1995. Estalilla and his companions,
namely, Danilo Picardo and accused-appellant Herson Florague, drank gin from 2 to 3
oclock in the afternoon. Afterward Danilo Picardo and accused-appellant went
home. Egilberto Estalilla stayed on. Villie said accused-appellant came back and she
saw blood on his hands. Accused-appellant wanted Egilberto, who was his uncle, to
help in surrendering to the authorities in Caba, La Union because he had just hacked
his brother, Christopher Florague. Egilberto told accused-appellant to sit down and
asked him why he hacked his brother. Accused-appellant explained that he and his
brother had a fight. At the time of the conversation, Villie said she was around three
arms lengths away from accused-appellant and Egilberto. After 10 minutes, accused-
appelant went to his house, which was about 100 meters from Villies house. Egilberto
followed accused-appellant to the latters house in Gana, Caba, La Union. Fifteen
minutes after Egilberto had left her house, Villie learned from her aunt, Adelina
Apolinar, that Egilberto had been killed.
Villie also said she had a child by Egilberto.  She executed an affidavit, dated
[4]

August 20, 1995, attesting to what she knew of the manner in which Egilberto
Estalilla died.
[5]

Dominic Tabafunda, 15 years of age, a resident of Barangay Gana, Caba, La

Union, gave a different account of the events leading to the death of Egilberto
Estalilla. He said that at around 3 oclock in the afternoon of August 13, 1995, he went
to the house of his Auntie Ligaya, located south of the house of Vice-Mayor Agripina
Estalilla. He then walked back to his house to feed the chickens. On the way home, he
saw Gilbert Estalilla and accused-appellant Herson Florague between the houses of
Leonardo Alcantara, whom he called Apong Narding, and a certain Apong
Usting. Accused-appellant and Egilberto wrestled for possession of a gun. Dominic
was around 40 meters away from them. Afraid that he might get hit, Dominic ran to
his house and there heard two gunshots coming from the place where accused-
appellant and the victim were struggling. After 10 minutes, Dominic went out of the
house to see what had happened. He saw Gilbert Estalilla lying face down on the
ground in front of accused-appellants house. Accused-appellant was no longer
around. Dominic Tabafunda said he later came to know that Egilberto Estalilla died of
gunshot wounds. He identified accused-appellant Herson Florague and accused
Leonardo Alcantara in open court. [6]

Dominic gave a statement to the police, marked as Exhibit C,  which he also

[7]

identified on the witness stand.  He affirmed the statement in his affidavit that while
[8]

he was walking on the road, he heard several gunshots, although he did not see any
person in the immediate vicinity.  On cross-examination, Dominic testified that
[9]

accused-appellant and Egilberto Estalilla were the only ones at the place of the
incident. He was inside the house when he heard the gunshots. He did not know where
the gunshots came from nor what had actually caused the explosion. [10]

Another witness to the killing of Egilberto Estalilla was Rodolfo Dulay, 41 years
old and a resident of Barangay Juan Cartas, Caba, La Union. According to him, at
around 4 oclock in the afternoon of August 13, 1995, he went to the Alcantara
furniture shop, located east of the national highway, to buy a chair. He was standing in
front of the shop when he heard two gunshots coming from west of the national
highway. When he looked towards the direction of the gunshots, he saw Christopher
Florague and Leonardo Alcantara running after Egilberto Estalilla. Accused-appellant
Herson Florague was also following them. The two were able to overtake Estalilla.
Christopher Florague stabbed the victim on the left side of neck below the left jaw
with a knife, while Leonardo Alcantara struck him with a piece of wood on the right
side of his back. As a result, Egilberto Estalilla fell down. Then the accused-appellant
arrive with a gun. Dulay said the accused and their victim were on the other side of
the road from where he was. Afraid of what was happening, he and other bystanders
hid themselves from view. Dulay then heard two shots ring from the direction of the
place where Egilberto Estalilla was. Dulay said he later saw Egilberto Estalilla lying
on the ground bloodied as accused-appellant and his companions, Christopher
Florague and Leonardo Alcantara, fled westward. [11]

Rodolfo Dulay stated that he was close to the family of Egilberto Estalilla, whose
mother was the Vice-Mayor of Caba, La Union. He explained that he was not able to
report the matter to the police because he was from another barrio, Barangay Juan
Cartas, which is three to four kilometers from Barangay Gana. During the funeral of
Egilberto Estalilla, he was told by the victims mother that nobody wanted to testify,
and so he told her that he was willing to testify.
[12]

Dr. Arturo G. Llavore, Medico-Legal Officer of the National Bureau of

Investigation, Ilocos Regional Office, San Fernando, La Union, conducted an autopsy
of the victims body. His findings were contained in a report, which stated in pertinent
parts:

Cadaver, preserved by embalming.

Abrasions: Temple, left, 0.9 x 0.3 cm.; Forearm, right, middle third, anterior
aspect, 3.0 x 1.7 cm.; 5th Finger (small), left, dorsal surface, 5.0 x 1.8 cm.; Hand,
left, dorsal surface, two (2) in number, measuring 1.5 x 0.5 cm. and 0.9 x 0.7 cm.,
respectively; Base of the Thumb, left, dorsal surface, 0.5 x 0.2 cm.; Wrist, left,
two (2) in number measuring 1.8 x 0.8 cm., and 1.2 x 0.9 cm. (multiple),
respectively; Chest, anterior, left side, 1.0 x 0.3 cm.; Knee, left, upper portion,
anterior aspect, multiple, with an area approximately 6.5 x 3.0 cms. in size;
Ankle, right, medial aspect, 2.0 x 1.8 cms.; Foot, left, dorsal surface, 1.2 x 2.0 cm.

Contusions: Mandibular area, right, below the right Ear, 3.0 x 1.7 cms.; Cardiac
portion, Lung, left, upper lobe.

Contused Abrasions: Zygomatic area, left, 4.0 x 2.3 cms.; Upper Lip, left side, 2.0
x 0.8 cm.
 Wound Lacerated: Upper Lip, left side, 0.3 cm. long and lower Lip, left side, 0.3
cm. long.

Wound, Incised: Neck, base, right side, 9.0 cms. long, involving the skin only;
Arm, left, lower third, lateral aspect, 3.0 cms. long, involving the skin and
underlying soft tissues only.

Wounds, GUNSHOT.

1.1 ENTRANCE, Chest, right side, posterior aspect, 7.0 cms. to the right of the
posterior median line and 135.0 cms. from the right heel; measuring approximately
0.9 x 0.8 cm. in size, ovaloid, edges inverted, oriented medially and slightly
downward, with an abraded collar widest at its superolateral margin; directed forward,
slightly downward and from right to left; involving the skin and its underlying soft
tissues, the bullet entering the chest cavity by fracturing the 4th Rib, right, along the
paravertebral line, crossing the midline and lacerating the right ventricle of the Heart
and its right auricle, the Pulmonary artery and vein, lacerating also the right Lung,
lower lobe, medial aspect, then the bullet leaving the Chest cavity, left side anterior
aspect, through the 7th Intercostal space and fracturing the upper border of the 8th
Rib, left, along the midclavicular line and producing a wound of EXIT at the Chest,
anterior, left side, just above the nipple 9.5 cms. to the left of the anterior median line
and 129.5 cms. from the left heel; measuring approximately 1.2 x 0.6 cm. in size, slit-
like, edges everted;

1.2 ENTRANCE, Gluteal region (buttocks), right, upper, medial quadrant, 10.3 cms.
to the right of the posterior median line and 94.0 cms. from the right heel; measuring
0.9 x 0.8 cm. in size, ovaloid, edges inverted, oriented upward and medially, with an
abraded collar widest at its inferolateral margin; directed forward, medially and
upward; involving the skin and its underlying soft tissues, the bullet taking an
intramuscular route towards the Searum where a slightly deformed copper-jacketed
bullet was partially IMBEDDED and RECOVERED; injured tissues had minimal
vital reactions;

1.3 ENTRANCE, Gluteal Region (buttocks), right, lower, medial quadrant 5.0 cms. to
the right of the posterior median line and 86.0 cms. from the right heel; measuring 1.0
x 0.8 cm. in size, ovaloid, edges inverted, oriented upward and medially, with an
abraded collar widest at its infero-lateral margin; directed forward, acutely upward
and from right to left; involving the skin and its underlying soft tissues, the bullet
taking an intramuscular route medially and upward, fracturing the Sacrum, right side
and entering the floor of the Pelvis, lacerating muscles, entering the abdominal cavity
where it perforated loops of Small intestine, piercing the Omentum then leaving the
abdominal cavity by producing a Wound of EXIT at the anterior Abdominal wall, left
side, lower quadrant, 3.5 cms. to the left of the anterior median line and 102.0 cms.
from the left heel; measuring 1.0 x 0.6 cm. in size, slit-like and its edges overted.

Hematoma, Scalp, Interstitial: Mid-frontal region, 3.5 x 2.3 cms., mild; Parietal
region, left side, 3.8 x 1.7 cm., mild.

Hemothorax, right, approximately 300 ml. of clotted blood.

Hemoperitoneum, approximately 150.0 ml. of clotted blood.

Hemopericardium, massive, approximately 250 ml. of clotted blood.

Brain and other internal visceral organs, pale.

Stomach, one third full of partially digested meat, onions, and other food particles.

CAUSE OF DEATH: CARDIAC TAMPONADE SECONDARY TO GUNSHOT

WOUND, CHEST, POSTERIOR ASPECT, RIGHT SIDE [13]

Dr. Llavore testified that he conducted an autopsy on the body of the victim,
Egilberto Estalilla, on August 15, 1995 at the instance of Police Senior Inspector
Isidro Hernando Agbayani, the officer-in-charge of the Caba Police Station. Dr.
Llavore found abrasions on the left temple, the right forearm, the small finger on the
left hand, the dorsal surface at the side of the hand, the thumb, the wrist, left side of
the face, left side of the chest, anterior aspect of the left knee, and the right and left
ankles of the victim. According to Dr. Llavore, these abrasions were caused by the
rubbing of a rough surface against the skin. He also found contusions below the right
ear of the victim and on the cardiac portion of the left lung. These contusions were
caused by the violent impact of a hard object on the body without producing an
erosion or removal of the skin. The contusion on the right ear of the victim could have
been caused by a violent contact of a hard object, either a closed fist or the smooth
surface of a piece of wood. On the other hand, the contusion on the left lung was
caused by the bullet which passed through the different parts of the victims body.
Contused abrasions were also found in the zygomatic area, left side of the face, and
the left side of the upper lip of the victim. These contused abrasions were caused by a
combination of friction of a rough surface and a strong blow which produced injuries
beneath the skin. Dr. Llavore opined that a fist blow could have caused such an injury
if the blow was very strong. It was also possible that these contused abrasions were
caused by the impact of an object on the body of the victim. In addition, the victim
also suffered lacerated wounds on the left side of the upper and lower lips. The
lacerations could have been caused by a blow which pressed the soft tissues of the lips
against a hard object, such as the teeth. A fist blow could also have caused this type of
injury. There were also incised wounds found on the base of the neck on the right
side, measuring 0.9 cm., and on the left arm, 0.3 cm. in length, both of which were
superficial. Incised wounds could only be caused by a sharp-edged instrument, such as
a knife, a splinter of glass, or even a bolo. The sharp edge of the knife or glass pressed
against the surface of the skin would produce a clean cut wound.
Dr. Llavore also found gunshot wounds on the body of the victim. Gunshot
wound no. 1 had its point of entry at the back portion of the victims chest on the right
side, measuring 0.9 x 0.8 cm. in size, while the exit wound was located on the left
anterior aspect of the chest. In other words, the entrance wound was at the back of the
victim and the bullet exited in front of the left portion of the chest. Dr. Llavore said
that the bullet entered at the back, fractured the fourth rib at the back, to the right of
the posterior median line, and crossed the midline, hitting the right lung and the right
side of the auricle of the victims heart. The bullet then went through the seventh
intercostal space on the left side, fracturing the upper border of the eighth rib, before it
exited the victims body. Gunshot wound no. 1 produced a massive bleeding of the
heart within its cavity and on the right side of the chest as a result of the laceration of
the right lung. The direction of the bullet from the entry to the exit wound was
forward, from back to front, slightly downward and from the right to the left. Gunshot
wound no. 1 was fatal as it hit the right auricle and the right ventricle of the heart and
a portion of the right lung. In terms of the relative positions of the victim and his
assailant, the victim may have been upright at the time he was shot and the gun was
fired from behind and slightly to his right because the direction of the bullet was from
the right side to the left. Since the direction of the bullet was slightly downward, the
muzzle of the gun was at a higher level than the entrance wound. However, Dr.
Llavore could not say with certainty whether the victim was standing up or sitting
down when he was shot because the angle was slight. The entrance wound was 129.5
cms. from the right heel while the exit wound was 135 cms. from the same, leaving
only a difference of 5.5 centimeters, or an almost horizontal level. The distance
between the victim and his assailant was more than 24 inches.
Gunshot wound no. 2 was located at the buttocks on the right side of the victims
body. The entry wound was at the back of the victim and the bullet passed through an
intramuscular route, although not through the internal organs. There was no exit
wound on gunshot wound no. 2 as the bullet was recovered just behind the lower
portion of the back, or the sacrum.
Although he was not a ballistician, Dr. Llavore stated that the bullet may have
come from a .38 caliber or a 9MM gun. Dr. Llavores team recovered the slug and a
small fragment thereof from the body of the victim and sent it to the Ballistics Section
in Manila, whose report stated that the bullet came from a 9MM pistol.
 Gunshot wound no. 3 was also found on the right side of the buttocks below
gunshot wound no. 2. It hit the sacrum or the pelvic bone at the back, which was
fractured, and the small intestines. The exit wound was at the left lower quadrant of
the abdomen. In gunshot wound nos. 2 and 3, the trajectory of the bullets was
upwards. Since the entrance wounds in gunshot wound nos. 2 and 3 were at the back
and the trajectory came from behind, Dr. Llavore deduced that the muzzle of the gun
was at a lower position, assuming that the victim was standing upright. Assuming that
the body was face down or in a prone position, the muzzle of the gun would have been
positioned above and towards the feet, slightly to the right.
The upward trajectory in gunshot wound no. 3, however, was more acute. As
gunshot wound nos. 2 and 3 have a similar trajectory and were almost in the same
area on the right buttocks, Dr. Llavore concluded that the shots were fired in
succession. Dr. Llavore theorized that gunshot wound no. 1 was fired first and
gunshot wound nos. 2 and 3 were fired successively afterwards, when the victim was
already falling down. According to Dr. Llavore, it would be difficult to determine
whether the abrasions and contusions were inflicted before the gunshot wounds. Nor
could he tell from the injuries the number of assailants of the victim. The injuries
suffered by the victim could have been inflicted by one or several assailants. The
height of the victim was 175 cms., or more or less five feet and eight inches. [14]

Dr. Llavore identified in open court his autopsy report  as well as several pictures
[15]

of the victim  showing the location of the wounds sustained by him.  Some of the
[16] [17]

pictures were taken by Dr. Llavore, while the others were taken under his direct
supervision by other persons. The immediate cause of the victims death was cardiac
tamponade secondary to the gunshot wounds, a condition where the heart cavity was
filled with so much blood that the heart muscle could no longer pump blood. Gunshot
wound no. 1 was the cause of the cardiac tamponade. Thus, even in the absence of
gunshot wound nos. 2 and 3, gunshot wound no. 1 was sufficient to cause the victims
death.[18]

On cross-examination, Dr. Llavore stated that the abrasions, contusions,

lacerations, and incised wounds sustained by the victim could have been inflicted
whether the victim was standing, sitting, or lying down while grappling with
somebody. Grappling for a gun could not have caused an incised wound. It was
possible, however, that these injuries could have been caused by the victim coming in
contact with the rough surface of the ground. It was also possible that the incised
wounds, which involved only the surface of the skin, were caused by an object lying
on the ground, so long as the same had a sharp edge, such as a glass fragment or a
bamboo. Dr. Llavore clarified that there could be no relation between the
superficiality of the wound and whether or not it was intentionally inflicted. Dr.
Llavore maintained that gunshot wound no. 1 was inflicted prior to gunshot wound
nos. 2 and 3. He explained that there was minimal vital reaction of the tissues in
gunshot wound no. 2. Vital reactions are the reaction of live soft tissues to
stimulus. The stimulus in a gunshot wound would be the laceration caused by the
bullet. Gunshot wounds inflicted initially have very clear vital reactions. In gunshot
wound nos. 2 and 3, there was minimal vital reaction which showed that there was
already a weakening of the heart at the time. Gunshot wound no. 1 would have caused
the victim to fall down.[19]

The last witness to testify for the prosecution was Agripina Estalilla, the victims
mother and Vice-Mayor of Caba, La Union, who was presented to prove the civil
liability of the accused in connection with the killing of her son. She testified that she
was engaged in several businesses, including buying and selling tobacco and rice. Her
son, Egilberto  Estalilla, was killed on August 13, 1995 by the three accused. Her son
[20]

was 39 years old, married to Librada Torres, and had four children by the latter. She
testified that her son worked as their family driver, earning a monthly salary
of P6,000.00. She stated that she spent P15,000.00 for her sons tomb and P100,000.00
for the wake and funeral. She said that she could not avoid these expenses as she was
a politician and plenty of people came to her sons wake. Among Egilbertos four
children, the eldest was a college student living in Manila while the second one was in
high school, and the remaining two were in elementary school. She was the one who
supported Egilbertos children as his wife was working in Japan. Egilbertos wife did
not go to the wake and funeral as she had just left for Japan and Agripina no longer
allowed her to come home. Agripina Estalilla identified the three accused in open
court.
On cross-examination, Agripina Estalilla denied that her son was separated from
his wife. She did not know whether Egilberto was staying with another woman
because he stayed in her house. She said that he was supporting his children as he was
earning money then. She denied that she filed a criminal case against her son for
shooting her and that one of her sons, Noel, stabbed Egilberto when they were
fighting. The only case she knew of was that in which a search warrant was issued
against her son although nothing was found to incriminate him. Agripina Estalilla
stated that she knew of the identity of her sons killers the same day he died, but she
encountered some difficulty because, despite the fact that many witnessed her sons
killing, nobody was willing to testify. She denied that she scouted for possible
witnesses and testified that there were those who volunteered to be witnesses, such as
Dominic Tabafunda, Johnny Cartas, and Rodolfo Dulay. At first, Agripina stated that
she could not remember who first told her that the accused were responsible for the
death of her son. On further questioning, however, she said that it was Dominic
Tabafunda who told her on the evening of August 13, 1995 that it was the accused
who killed her son. She did not see Rodolfo Dulay on the day her son was killed, but
the latter went to her sons house before the burial. As regards the civil aspect of the
case, Agripina Estalilla stated that Egilberto Estalilla was not included in the payroll
even though he had been their family driver for almost a year prior to his
death. Agripina Estalilla also testified that she knew of Villie Alajari, but denied any
knowledge of her son having a child by her. She said that she was the one who
decided against Egilbertos wife returning from Japan because the latter had not yet
finished her contract.
[21]

The defense presented as its witnesses Ramona Alcantara, accused Christopher

Florague, Nicanor Tirado, accused-appellant Herson Florague, accused Leonardo
Alcantara, Flordeliza Florague, and Nida Rodriguera. Accused-appellants defense was
that Egilberto Estalilla was accidentally shot as they grappled for possession of
Estalillas gun. Their testimonies were as follows:
Ramona Alcantara, wife of accused Leonardo Alcantara, testified that she and her
husband came to La Union in 1964, but the latter went to Davao in January of 1972 to
look for a job and returned to Caba only on July 19, 1995. Ramona testified that at
around 3 oclock in the afternoon of August 13, 1995, while she and her husband were
in the house of her father-in-law in Barangay Gana, they heard a shot coming from the
west. Her husband was then cleaning the table in the kitchen, while she was in the
sala. After hearing the shot, they closed the windows. Ramona said that she heard two
men outside her house struggling with each other. She did not see them, but it seemed
to her they were running. Later, when she opened the window, she saw Egilberto
Estalilla lying dead on the road in front of the house of the Floragues. After the
commotion, two policemen arrived and asked her if she saw the incident, to which she
replied in the negative because they had already closed the windows by then. She said
that her husband did not go out at that time but stayed in the kitchen. [22]

One of the accused, Christopher Florague, 23 years old, testified that on August
13, 1995, he had drinks with Nick Tirado, Gerardo Tirado, and a certain Ildefonso
Garcia, near the house of Nick Tirado along the national road in Barangay Gana,
[23]

Caba, La Union. They started drinking from 9 oclock in the morning and finished at 2
oclock in the afternoon. Afterwards, Christophers companions went home, while he
went to sleep in front of the house because he was drunk. When he went home at
around 6 oclock in the evening, he found his sisters, Josephine, Flordeliza, Cristeta,
and his mother, Caridad, watching television. He was told by them that his Uncle
Gilbert had been shot and that his brother, accused-appellant Herson Florague, was
the suspect. Christopher said he then went to his room and slept. He woke up at 10
oclock in the morning of the following day. He claimed he had never met Rodolfo
Dulay and only knew the latter by name. Christopher said that Rodolfo Dulay was
known in their barrio as someone who worked as a hired witness. [24]

According to Christopher, he did not attend the wake for his uncle, because his
brother was a suspect in the killing and the people there might vent their ire on
him. Nor did he attend the burial of his uncle. [25]
 Nicanor Tirado corroborated Christopher Floragues alibi that the latter was
sleeping at the time Egilberto Estalilla was killed and that he woke up only at 6 oclock
in the evening of the same day.[26]

Accused-appellant Herson Florague testified in his own defense. He said that in

the morning of August 13, 1995, he went to the mountain to get bamboo for use in
making chairs. He went home to Gana, Caba, La Union at 8:30 in the morning. He
met the victim, who asked him to buy some snacks (pulutan), and the two joined Nick
Tirado and his group, who were drinking at a place around 50 to 70 meters away from
the house of Nick. This was between 10 to 11 oclock in the morning. Their drinking
lasted until 2:30 in the afternoon. At one point, Danny Picardo tried to cause trouble
by pushing a motorcycle, but victim pacified him. Danny Picardo also went to the
yard of a certain Anno Bacalzo and began shouting at the people there. Several
policemen arrived at the scene. The group continued drinking during which the victim
turned over his gun to Nick Tirado for safekeeping. At 2:30 to 3 oclock in the
afternoon, the victim and accused-appellant left together and went home. Accused-
appellant claimed that he was later told that the victim wanted to see him, he went to
the victims house. He claimed the victim handed to him a gun and told him to shoot
one Isagani Mino. Accused-appellant said he refused, and the victim got angry and
slapped him several times and threw gin at his face. Accused-appellant said he then
went home, but the victim followed him. The victim came and shot him twice but
missed him each time. He said the victim chased him as he ran away and caught up
with him between the house of Anacleto and Leonardo Alcantara. The victim pressed
his gun against accused-Appellants forehead, but, accused-appellant said that with his
left hand, he was able to grab the victims hand holding the gun, and with his right
hand boxed the victim in an area where he had had an operation. The two men
wrestled each other and fought for possession of the gun. As they fell to the
ground, accused-appellant then went on top of the victim, who was lying on the
ground with his face down, and twisted the latters hands towards his back. At that
moment, the gun went off and hit the victim. Accused-appellant then fled to the
woods and stayed there until nighttime. He then went to Barangay Sandoy, Alaminos,
where his live-in-partner, Luz Corpuz, was living. Accused-appellant said that he ran
away because he was afraid of the victims family, especially his brothers, who were
ruthless and used to fire their guns indiscriminately when drunk. He returned home on
September 1995 and surrendered to a Maj. Chan at Camp Diego Silang. [27]

When asked by the court, accused-appellant demonstrated how, as the victim was
lying on the ground face down, he used his right hand and twisted the victims hand
and in the process the gun went off. [28]

Leonardo Alcantara, 66 years old, also testified in his defense. He stated that in
January 1972, he left Gana, Caba, La Union, for Davao where he worked as a banana
plantation worker for 16 and a half years. He returned home only on July 19,
1995. When questioned about his limp, Leonardo explained that it was caused by a
stroke he suffered in Davao. He only came to know Herson and Christopher Florague
after he returned from Davao as both had not been born yet when he left La Union. He
knew Agripina Estalilla, the Vice-Mayor of Caba, La Union, and her son, Egilberto
Estalilla, because he had once been hired to harvest in their farm. On August 13,
1995, he was cleaning the kitchen in the house of his father, Anacleto, while his wife
was cleaning the sala when they heard gunshots coming from the direction of the
house of the Floragues. Frightened, he and his wife closed the windows and tried to
seek cover. Leonardo Alcantara said that he did not go out of the house at the time of
the incident. He stated that the police arrived at around 5 oclock in the afternoon and
came to his fathers house to inspect the table but left after a few minutes.  The brothers
of the victim also came to the house and told him that Egilberto had been shot. He
said that he did not see Herson or Christopher Florague that afternoon. He also said
that Agripina Estalilla talked to him and told him that he was implicated in the crime
because he refused to testify. He did not know Rodolfo Dulay. He denied Dulays
claim regarding his alleged participation in the killing of Egilberto Estalilla, that he
chased the latter, or that he used a piece of wood to strike him. He said that he could
not have run after the victim since he had a limp. On cross-examination, he said that
he stayed in Davao for 23 years until 1995, but only worked for 16 and a half years
because he suffered from anemia, which the doctors said could worsen to leukemia,
and a stroke, which paralyzed half of his body. He was still undergoing physical
therapy on account of his illness.[29]

Flordeliza Florague, accused Christopher and Herson Floragues sister, testified

that at around 4 oclock in the afternoon of August 13, 1995, she was inside their house
in Gana, Caba, La Union, watching television, when she heard two gunshots. When
she looked out of the window, She saw Egilberto Estalilla holding a gun. According to
Flordeliza, she later saw her elder brother, Herson, and the victim grappling for
possession of a gun. She went out crying and shouting, Its my brother, my
brother! She saw Dominic Tabafunda, her neighbor, going to his house. Flordeliza
said she proceeded to the house of her Lola Monding, around 40 to 50 meters from
their house, and there heard two gunshots fired. She stayed there for about half an
hour as she was afraid and then went out of the house after policemen had
arrived. Flordeliza said she saw Egilberto Estalilla holding a gun but did not know
who fired the gunshots. [30]

The last witness for the defense was Nida Rodriguera, Clerk of Court, Branch 33,
Regional Trial Court. She testified that Rodolfo Dulay was presented as a defense
witness in two criminal cases for homicide, Criminal Case Nos. 1386 and 1387
entitled People v. Rodolfo Dulay, resulting in the acquittal of the accused.  She did
[31]

not say whether prosecution witness Rodolfo Dulay was the same person as the
accused in the two cases.
 Based on the evidence presented, the trial court rendered a decision on June 26,
1998, the dispositive portion of which stated:

WHEREFORE, judgment is hereby rendered:

a) Finding the accused, HERSON FLORAGUE y ESTALILLA guilty of the crime of

MURDER beyond reasonable doubt and hereby sentences him to suffer the penalty of
RECLUSION PERPETUA;

b) Ordering HERSON FLORAGUE y ESTALILLA to indemnify the heirs of

Egilberto Estalilla in the sum of P400,000.00, without subsidiary imprisonment in
case of insolvency.

c) Acquitting accused Christopher Florague and Leonardo Alcantara their guilt not
having been proven beyond reasonable doubt.

d) Ordering the release from custody [of] accused Christopher Florague and Leonardo
Alcantara unless they are being held for any other lawful cause.

SO ORDERED. [32]

Hence this appeal. In his lone assignment of error, accused-appellant contends

that The lower court erred in convicting the accused based on flimsy circumstantial
evidence.[33]

First. Accused-appellant admitted that he was responsible for the shooting of

Egilberto Estalilla, but claimed that the gun went off and hit the victim as he and the
latter grappled for possession of the firearm which allegedly belonged to accused-
appellant. As accused-appellant thus invokes self-defense, the burden of proof is on
him to show by clear and convincing evidence (1) that he was not the unlawful
aggressor; (2) that there was lack of sufficient provocation on his part; and (3) that he
employed reasonable means to prevent or repel the aggression. Proof of unlawful
aggression on the part of the victim is indispensable since the theory of self-defense is
based on the necessity on the part of the person being attacked to prevent or repel the
aggression. [34]

In this case, there is doubt that the victim was the aggressor inasmuch as no
reliable evidence was presented by the defense to prove that the victims gun was
returned to him after he turned over the same to Nick Tirado.
On the other hand, we have time and again held that appellate courts accord the
highest respect to the assessment made by the trial court on the credibility of
witnesses because of its unique opportunity to observe the witnesses firsthand and to
note their demeanor, conduct, and attitude under grueling examination. In this case,
the trial court found:

Summing up the testimony of accused Herson Florague, the Court gathers that he tried
to establish self-defense without directly admitting that he caused the eventual death
of the victim after a brief altercation. However, he failed to satisfy this Court of his
defense.

The Supreme Court has time and again enunciated that for self-defense to prosper, the
evidence must be persuasive (People v. Eduarte, 187 SCRA 291). Likewise, it must be
positively shown that there was a previous unlawful and unprovoked attack on the
person of the accused that placed him in danger, thereby forcing him to repel the
attack and to inflict more or less severe wounds upon his assailant employing
reasonable means therefor to resist the same (People v. Madali, 188 SCRA
69). Although he claims that the victim went to his house and immediately shot at him
two (2) times but did not hit him, there is an indication that the victim did not intend
to shoot him to death. This is evidenced by the fact that the victim had a chance to kill
Herson when he poked the gun at Hersons forehead but he did not do so. This may be
due to the fact that the victim only wanted to scare the accused but had no real
intention to kill the latter. Likewise, witness for the defense Flordeliza Florague, sister
of the accused, stated that when she saw Gilbert holding his gun, it was pointed
downward. This Court is not convinced by the testimony of the witness that the gun
went off during the scuffle after Herson managed to twist the victims arm towards his
back and then he ran away. This does not explain the three (3) gunshot wounds
suffered by the victim all inflicted on his back and the fact that the victim was found
sprawled in the west shoulder of the National Highway, some meters away from the
place where the scuffle took place. Moreover, as testified by the doctor who
conducted the autopsy, the victim could have fallen down immediately after the first
shot was fired because it would have mortally wounded the victim. In addition, the
accused immediately took flight indicating that he is guilty of the offense charged. His
act of surrendering to the police authorities after he found out about the criminal
charge only has the effect of reducing the imposable penalty. [35]

It is settled that unless the trial judge overlooked certain facts of substance and
value which, if considered, might affect the result of the case, appellate courts will not
disturb the credence, or lack of it, accorded by the trial court to the testimonies of
witnesses.  We see no reason to depart from the general rule in this case.
[36]

To begin with, self-defense and accidental shooting cannot both be raised by the
accused as a defense. If accused-appellant was acting in self-defense, then he could
only have deliberately used the gun to repel the alleged aggression. Then the gun
could not have been fired accidentally. On the other hand, if the shooting was
accidental, then it was immaterial whether accused-appellant employed reasonable
means to repel the alleged aggression.  Be that as it may, let it be assumed that what
[37]

accused-appellant meant is that he engaged the victim in combat to defend himself

against the latters aggression and that, in the course thereof, the gun which the latter
was holding accidentally went off and hit him. The evidence, however, falls short of
that required to discharge the burden of proof on accused-appellant.Accused-
appellants allegation is belied by the physical evidence.
First, accused-appellant testified that the gun accidentally fired only once.  The [38]

medical report, shows however, that Egilberto Estalilla sustained three gunshot
wounds, one of which was fatal.
Second, accused-appellant claimed that the victim was with lying face down on
the ground and his hand twisted behind his back when the gun, which was pointed
downwards when the gun went off. This is contradicted by the findings of Dr.
[39]

Llavore, who found that gunshot wound no. 1 was located on the chest of the victim
with the exit wound being on the left anterior aspect of the chest.  This belies
[40]

accused-appellants testimony that the gun was pointed downwards at the back of the
victim when it went off. Moreover, if the gun was pointed downwards, then the
trajectory of the bullet would have been at an acute angle going downwards. But Dr.
Llavore testified that the angle of the bullet was almost horizontal,   while the [41]

trajectory of the bullets on gunshot wound nos. 2 and 3 was upwards.  The gun could
[42]

not, therefore, have been pointed downwards.

Third, Dr. Llavore testified that the distance between the victim and his assailant
was beyond 24 inches.  It is thus clear that the gunshot wounds sustained by the
[43]

victim were not inflicted at close range, as accused-appellant would lead this Court to
believe. The possibility is that the gun although belonging to the victim, had been held
by accused-appellant even from the beginning. It will be recalled that, according to
Nick Tirado, a witness for accused appellant, the victim gave his gun to him (Nick
Tirado) although Nick claims the victim later got back the gun from him. The
probability is that the victim did not really get back his gun and that accused-appellant
somehow got it and used it against the victim. Hence the finding of Dr. Llavore that
the victim was shot from a distance of more than 24 inches.
As accused-appellant failed to establish his defense by clear and convincing
evidence, he was correctly held criminally liable for the killing of Egilberto Estalilla.
Second. We do not agree with the trial court, however, that treachery attended the
commission of the crime and that accused-appellant must be convicted of the crime of
murder. For treachery to exist, the following must be established: (1) the employment
of means of execution that gives the person attacked no opportunity to defend himself
or to retaliate; and (2) the deliberate and conscious adoption of the means of
execution.  It cannot be denied that the victim in this case sustained several gunshot
[44]
wounds at the back. However, proof that the fatal wounds were located at the back of
the deceased does not, sufficient to justify itself, compel a finding of treachery.
 There must be a clear showing that the mode of attack was employed to reduce, if
[45]

not eliminate, the danger arising from the defense that the victim might offer. Absent
any particulars on the manner in which the aggression was commenced, treachery
cannot be reasonably appreciated to qualify the killing in this case to murder.  The
[46]

manner of attack not having been proven in this case, accused-appellant should be
given the benefit of the doubt and the crime committed should be considered only as
homicide under Art. 249 of the Revised Penal Code. [47]

In addition, accused-appellant must be credited with the mitigating circumstance

of voluntary surrender. Although a warrant of arrest had in fact been issued against
him, accused-appellant had not been arrested when he surrendered to the group of
Police Chief Inspector Marlou Cortez Chan (Exhs. 2, 2-A, and 2-B). [48]

Accordingly, the penalty to be imposed should be reduced to reclusion

temporal as provided by Art. 249 of the Revised Penal Code. Considering the
mitigating circumstance of voluntary surrender appreciated in favor of accused-
appellant, the penalty to be imposed shall be in its minimum period in accordance
with Art. 64(2) of the Revised Penal Code, or in the case of reclusion temporal, from
twelve (12) years and one (1) day to fourteen (14) years and eight (8)
months. Applying the Indeterminate Sentence Law, the minimum of the penalty to be
imposed shall be the penalty next lower in degree, or prision mayor in any of its
periods. [49]

As regards the question of damages, however, we find the trial courts award
of P400,000.00 as indemnity, in accordance with our rulings  on this question, to be
[50]

excessive. Accused-appellant should only be made to pay the amount of P50,000.00

for civil indemnity and P50,000.00 for moral damages.
WHEREFORE, the decision, dated June 26, 1998, of the Regional Trial Court,
Branch 67, Bauang, La Union is AFFIRMED with the MODIFICATION that
accused-appellant is found guilty of homicide and is sentenced to suffer the
indeterminate penalty of ten (10) years and one (1) day of prision mayor, as
minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as
maximum, and to pay the heirs of Egilberto Estalilla the sum of P50,000.00 as civil
indemnity and a further sum of P50,000.00 as moral damages.
SO ORDERED.
Bellosillo, (Chairman), Buena, and De Leon, Jr., JJ., concur.
Quisumbing, J., abroad on official business.
 HIRD DIVISION

[G.R. No. 102772. October 30, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGELIO

DOEPANTE y CARILLO, accused-appellant.

DECISION
PANGANIBAN, J.:

In deciding this appeal, the Court finds occasion to reiterate some well-settled
doctrines in appreciating evident premeditation as a qualifying circumstance in the crime
of murder, and in evaluating claims of self-defense, voluntary surrender and physical
defect.
This is an appeal from the decision  dated September 6, 1991 of the Regional Trial
[1]

Court of Pasig, Metro Manila, National Capital Judicial Region, Branch 164, in Criminal
[2] 

Case No. 85155, convicting accused Rogelio Deopante y Carillo of the crime of murder
and sentencing him to reclusion perpetua.
On January 11, 1991, an Information  was filed against the appellant charging him
[3]

as follows:

That on or about the 10  day of January, 1991, in the Municipality of Pasig, Metro
th

Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, armed with a fan knife (balisong), with intent to kill and with evident
premeditation and treachery did then and there willfully, unlawfully and feloniously
stab with a fan knife one Dante Deopante on the different parts of his body, thereby
inflicting upon the latter mortal wounds which directly caused his death.

Contrary to law.

Arraigned on March 8, 1991, the accused, assisted by counsel de oficio, pleaded

not guilty to charge.
[4]
 The Facts

According to the Prosecution

The facts as summarized by the Solicitor General, who added the page references
to the transcript of stenographic notes, are as follows:
[5]

At around nine oclock in the evening (9:00 p.m.) of January 10, 1991 at Alkalde Jose
Street, Barrio Kapasigan, Pasig, Metro Manila, Dante Deopante was having a
conversation with his friend Renato Molina when they saw appellant Rogelio
Deopante coming towards their direction. Renato noticed that as appellant was fast
approaching, the latter was drawing out an open fan knife (balisong) from his right
back pants pocket. Sensing danger, Renato immediately called out to Dante and told
the latter to flee the place. As Dante took flight, so did Renato in another
direction. (pp. 3-4, 6, 8, t.s.n. June 3, 1991)

Appellant ran after Dante and overpowered the latter at basketball court located in a
lot between Alkalde Jose and Pariancillo Streets. Appellant and victim grappled with
each other and both fell on the ground. Appellant was able to assume the dominant
position and as Dante lay flat on his back the former proceeded to stab the latter twice
with his fan knife. Immediately thereafter, appellant stood up and fled the scene
leaving Dante mortally wounded. Bystanders milling around Pariancillo Street then
rushed victim to the Rizal Medical Center. (pp. 3-5, t.s.n., April 25, 1991; pp. 8, 9, 11,
t.s.n. June 3, 1991)

At about the same time on the aforesaid date, the Pasig Police Station received a
telephone call from the Rizal Medical Center informing them that a stabbing victim
has been brought to said hospital for treatment. Patrolman Crispin Pio proceeded to
the hospital and there received the information that appellant was the one who stabbed
Dante. Said policeman later obtained the sworn statement of Nestor Deopante
indicating that appellant stabbed the victim. Renato refused to give his sworn
statement to the police, but insisted that indeed it was appellant who stabbed Dante.
(pp. 5-7, t.s.n., May 15, 1991)

At around eleven oclock (11:00 p.m.) of the same evening, Patrolman Crispin Pio and
two (2) other police officers went to the house of appellant located at No. 12 Alkalde
Jose Street, Barrio Kapasigan, Pasig, Metro Manila. After informing appellant of the
allegation against him, they invited the former to the police station for
investigation. Appellant went with the police officers and maintained his innocence
throughout the investigation. Patrolman Crispin Pio recovered a fan knife from
appellant measuring around ten (10) inches when opened. He sent the fan knife to the
P.N.P. Crime Laboratory Service for examination. (pp. 8-9, t.s.n., May 15, 1991)

The autopsy report shows a total of seven (7) wounds all over victims body. Of these
wounds, two (2) were stab wounds (Wound Nos. 2 & 3) and the rest mere
abrasions. Dr. Emmanuel Aranas, the medico-legal officer of the P.N.P. Crime
Laboratory Service who conducted the autopsy testified that the stab wounds were
caused by a sharp pointed object like a balisong or fan knife. He further declared that
Wound No. 2, a stab wound located at the left side of the chest, lacerated the
diaphragm, liver (left lobe) and stomach of the victim causing the latters instantaneous
death. Moreover, he concluded that the fan knife sent to him for examination could
have been used in stabbing a person since it showed minute traces of human
blood. (pp. 7-8, t.s.n., April 19, 1991; p. 17. t.s.n., May 30, 1991)

The prosecution presented six witnesses. Aside from Dr. Emmanuel L. Aranas, who
testified on the results of the autopsy, the other witnesses included Manolo Angeles and
Renato Molina, who gave eyewitness accounts of the stabbing. Patrolman Crispin Pio of
the Pasig Police Station testified that he invited the accused for investigation after
receiving a report on the killing, and that upon frisking the accused, he found and
recovered from him a 10-inch fan knife which he submitted to the crime lab for
examination. Alfonso Reyes, barangay captain of Barangay Kapasigan, Pasig, Metro
Manila, testified that on August 19, 1989, Dante Deopante made a personal complaint
to him as barangay captain, that Rogelio Deopante had threatened to kill him
(Dante). He testified that his office kept a logbook of the all the incidents that happened
in the barangay and that the same contained a record of the said complaint  of Dante
[6]

Deopante. However, on cross-examination, he admitted that he was not the one who

personally made the entry.

Version of the Defense

In contrast to the prosecutions theory that the victim was killed with evident
premeditation, the defense claimed that the fatal injuries inflicted by accused-appellant
upon the victim were done in self-defense.  The defense presented three
[7]

witnesses, viz.: the accused himself, his longtime friend Benito Carrasco, and the son of
the accused, Vladimir Deopante. Their version of the event was as follows:

On January 10, 1991, at about 9:00 oclock in the evening, in Alcalde Jose Street,
Pasig, Metro Manila, while the appellant was allegedly on his way home he was seen
by his nephew, the victim (Dante Deopante) and the witness for the prosecution,
Renato Molina, who at that time were allegedly both drunk. (TSN June 6, 1991, page
3). The victim (Dante Deopante) suddenly boxed him and the said appellant ran away
and (was) pursued by the victim and Renato Molina. The appellant was overtaken by
the victim by holding the back portion of his shirt. Both of them fell. The victim
pulled-out a knife which appellant allegedly wrested x x x away from Dante
Deopante. After he (appellant) wrested the knife from the victim, they continued
rolling over and over the ground and he does not know whether he stab (sic) the
victim or not (TSN June 6, 1991, page 4). Said appellant sustained also injuries on
(the) little finger of his right hand and abrasion on his right leg, left knee and left hand
(sic). The said appellant was treated by one Dr. Leonides Pappa on January 11, 1991,
and issued medical certificate, marked as Exhibits 1, 1-A. 1-B and 1-C for the
defense. (TSN June 6, 1991, pages 5-6); Appellant claimed that he placed behind bars
(incarcerated) the victim for being a drug addict when he was still a policeman and
member of the Police Department of Pasig. Renato Molina eluded arrest by him, for
being a drug addict too. (TSN June 6, 1991, page 6). [8]

On cross-examination, accused Rogelio Deopante testified that he was a former

member of the Pasig Police Department but was discharged for having been absent
without leave, by reason of a complaint filed against him by Manolo Angeles before the
National Police Commission, and in which case the victim, Dante Deopante, was
presented as witness for complainant Angeles. He further testified that his left hand was
completely severed at the wrist when it was hacked off by his brother Nestor Deopante.

The Trial Courts Ruling

On September 6, 1991, the trial court rendered a decision convicting the appellant
of murder, the decretal portion of which reads as follows:

ACCORDINGLY, the Court finds the accused Rogelio Deopante y Carillo GUILTY
beyond reasonable doubt of the crime of Murder as charged; and therefore hereby
imposes upon him the penalty of reclusion perpetua, there being no other generic
aggravating or mitigating circumstance adduced; and to indemnify the heirs of the
victim the amount of P50,000.00 as well as to pay the costs.

SO ORDERED.

The Issues

In his brief, the appellant charges that the trial court erred

I In considering the entry in the (barangay) peace and order chairmans blotter under
entry no. 0097, page 58 (logbook) as a basis in holding the commission of the offense
with evident premeditation.
II. In not affording the accused-appellant the mitigating circumstances of voluntary
surrender and his physical condition.

III. In not considering appellants claim of self-defense.

IV. In not considering the flaws and inconsistencies of the testimonies of the
prosecutions witnesses and its biased character and wanting of credibility (sic).

V. In not considering the provision of Article 69 of the Revised Penal Code in the
imposition of penalty.

The Courts Ruling

First Issue: Evident Premeditation

Very familiar by now to members of the legal profession are the elements which
need to be proven before evident premeditation can be appreciated. These are: (1) the
time when the accused decided to commit the crime; (2) an overt act manifestly
indicating that the accused had clung to his determination to commit the crime; and (3)
a sufficient lapse of time between the decision to commit the crime and the execution
thereof, to allow the accused to reflect upon the consequences of his act. Mere lapse of
time is not enough, however, because premeditation is not presumed from the mere
lapse of time.  It must be evident from his overt act.
[9]

Considering the evidence on record, and the events leading up to the killing, we
cannot agree with appellants contention that the lower court based its finding of evident
premeditation on the victims report to the barangay captain that the accused-appellant
had threatened to kill him. We hold that the record contains sufficient basis for the
finding of evident premeditation.The first and third elements were proven by the
testimony of the barangay captain, Alfonso Reyes, as to the report made by the
deceased about the threat on his life, taken together with the record of the report in the
barangay logbook,  all of which established the time when appellant decided to commit
[10]

the crime. The period of time between the said report and the killing (January 10, 1991)
constituted a sufficient lapse of time between the determination to commit the crime and
the execution of the same, to enable the accused to coolly consider and reflect upon his
resolution to do away with the victim. Finally, the second element was proven by the
eyewitness testimony of Renato Molina, friend of the victim since childhood, who was
present from the inception to the culmination of the assault launched by the appellant
against the victim. We quote with approval the trial courts ratiocination, to wit:

That at around 9:00 oclock in the evening of January 10, 1991, he (Renato Molina)
and Dante Deopante were conversing at Alkalde Jose St., Pasig, Metro Manila when
the accused Rogelio Deopante arrived.He told Dante Deopante to run away. Both of
them ran but in different directions.

That he told Dante Deopante to run away because the latter and the accused had a
pervious (sic) misunderstanding and the accused always threatened Dante
Deopante after the latter testified against the accused for shooting a certain Maning
Angeles.

That he also told Dante Deopante to run away because he saw the accused carrying a
fan knife in his back pocket. He saw it because the place was lighted as there was a
lamp post.

x x x x x x x x x
x x x x x x x x x

This witness (Molina) testified that when he saw the accused more than six feet away
and was approaching them, he immediately warned his childhood friend and victim
Dante Deopante to run away which the latter did. At the time, the accused was seen by
this witness about to draw a knife from his back pants pocket; and that he, too, ran
away but took the opposite direction. Having traversed a short distance, he stopped
and looked back and saw the accused chasing his victim and nephew until the former
caught up with the latter, took hold of him and they both fell to the ground.

The accused could have desisted from carrying his plan to kill into effect had he
stopped when his nephew took off and ran away from him. The latter did so because
he knew in his heart that his uncle was about to kill him and this was also felt by
eyewitness Molina because of the immediate warning given by him to his friend.

But then, although he saw his nephew sprinting away, he nevertheless did chase him
for a distance and all the while he could have stopped and go home to his residence
situated only a few maters away.

Again he could have let go the victim when he caught up and took hold of him. He did
not, but on the contrary, when they both fell and rolled on the ground, he grappled
with his victim and at the very first opportune moment, mercilessly stabbed his
nephew, not only once but twice, inflicting, very serious blows, one of which was
most fatal and could have caused instantaneous death on his prey.

So it is that from this very actuation of the accused at the time, it is obviously clear
that he clung to this determination to kill Dante Deopante when he could have stopped
at anytime between the moment that his nephew ran away until the time that he dealt
the fatal blows that ultimately caused the death of Dante Deopante.  (underscoring ours)
[11]
 The three elements having been duly proven, the presence of evident premeditation
in the case at bar is therefore conclusive.

Second Issue: Voluntary Surrender and Physical Defect as Mitigating

Circumstances?

Contrary to appellants protestations, the trial court was correct in finding no

voluntary surrender in this case. In order to appreciate voluntary surrender by an
accused, the same must be shown to have been spontaneous and made in such a
manner that it shows the intent of the accused to surrender unconditionally to the
authorities, either because he acknowledges his guilt or he wishes to save them the
trouble and expense necessarily incurred in his search and capture. In the absence of
any of these reasons, and in the event hat the only reason for an accuseds supposed
surrender is to ensure his safety, his arrest being inevitable, the surrender is not
spontaneous and, hence, not voluntary.  It will be observed in this case that there was
[12]

no conscious effort on the part of the accused -- who was fetched from his house by
police officers to go to police headquarters for investigation -- to voluntarily surrender
and/or acknowledge his guilt. He went with them for the purpose of clearing his name as
he in fact tried to do during the investigation where he professed his innocence. The fact
alone that he did not resist but went peacefully with the lawmen does not mean that he
voluntarily surrendered.  On this point, it is apt to quote the decision of this Court
[13]

in People vs. Flores  where we stated that:

[14]

Neither can we accept accused-appellants plea of voluntary surrender. He did not

surrender to the police. In fact, the evidence adduced shows that it was the police
authorities who came to the factory looking for him. It was there that accused-
appellant was pointed to them. With the police closing in, accused-appellant actually
had no choice but to go with them. Seeing that the police were already approaching
him, accused-appellant did not offer any resistance and peacefully went with them. To
be sure, no surrender was made by accused-appellant.

The fact that appellant suffers from a physical defect, a severed left hand, does not
mean that he should automatically be credited with the mitigating circumstance
contained in paragraph 8, Article 13 of the Revised Penal Code. In order for this
condition to be appreciated, it must be shown that such physical defect limited his
means to act, defend himself or communicate with his fellow beings to such an extent
that he did not have complete freedom of action, consequently resulting in diminution of
the element of voluntariness.  Such cannot be appreciated in the case at bar where the
[15]

appellants physical condition clearly did not limit his means of action, defense or
communication, nor affect his free will. In fact, despite his handicap, appellant
nevertheless managed to attack, overcome and fatally stab his victim.
At this point, one might wonder how a one-handed attacker can open a fan knife
and grapple with and overcome his two-handed prey. This was answered by the
testimony of Renato Molina who revealed that at the time the accused closed in for the
kill, his balisong was already open and ready for use in his back pocket, and that he had
already drawn the same even during the chase. Molinas testimony  is as follows:
[16]

Q You said that this Rogelio Deopante arrived while you were conversing with Dante
Deopante and you ask (asked) Dante Deopante to run away, why did you ask
Dante Deopante to run away?
A Because, Sir I saw the open fan knife on his pocket, Sir at his back.
Q When you said that you have seen an open fan knife at his pocket, to whom are you
referring to?
A. Rogelio Deopantes, Sir.
x x x x x x x x x
Q. How did you notice the fan knife which is placed at the back if (sic) his pocket?
A. Because at the time, Sir he was drawing it out.
Hence, at the time the accused-appellant chased the victim, the former already had
the balisong in hand. Clearly, the fact that he had only one hand in no way limited his
freedom to action to commit the crime.

Third Issue: Self defense

Equally well-known and well-understood by now are the requirements in order for
self-defense to be appreciated. The accused must prove that there was unlawful
aggression by the victim, that the means employed to prevent or repel the unlawful
aggression were reasonable, and that there was lack of sufficient provocation on his
part.  And having admitted that he killed his nephew Dante Deopante, the burden of the
[17]

evidence that he acted in self-defense was shifted to the accused-appellant. It is

hornbook doctrine that when self-defense is invoked, the burden of evidence shifts to
the appellant to show that the killing was justified and that he incurred no criminal
liability therefor. He must rely on the strength of his own evidence and not on the
weakness of the prosecutions evidence, for, even if the latter were weak, it could not be
disbelieved after his open admission of responsibility for the killing.  Hence, he must
[18]

prove the essential requisites of self-defense aforementioned.

In the case at bar, appellant failed to prove unlawful aggression by the victim,
hence, his claim of self-defense cannot be sustained. The self-serving and unsupported
allegation of appellant that he wrested the knife away from the victim while they were
struggling and rolling around on the ground (in the process sustaining only a minor
scratch on his little finger and abrasion on the right knee) does not inspire belief, when
contrasted with the positive and categorical eyewitness accounts of Renato Molina and
Manolo Angeles that appellant ran after and stabbed the victim. The latters testimonies
are corroborated by the number and extent of the stab wounds sustained by the victim.
(Testimony of Manolo Angeles)
 Q While you were urinating at a post in Parancillo, can you remember if there was an
unusual incident that happened at that time?
A Yes, sir.
Q What was that unusual incident?
A Nakita ko po si Rogelio Deopante na tikad-tikad ng saksak si Dante Deopante (I saw
Rogelio Deopante chasing Dante Deopante with intention of stabbing).
COURT:
Q You mean by tikad-tikad, habol?
A Yes, your Honor.
ATTY. VALERIO:
Q How far were you when you were urinating from the place where the victim was
chased by the accused?
A More or less twenty (20) meters, sir.
Q What happened after that?
A He overtook him and stabbed him.
Q Can you remember how many stabs that the deceased received from the accused?
A Two (2), Sir.
Q Did you see the position of the deceased while he was being stabbed?
A At that time Dante Deopante was lying on his back and this Rogelio Deopante
stabbed him.[19]
(Testimony of Renato Molina)
Q If you know, what did Rogelio Deopante do with the knife that he was then carrying?
x x x x x x x x x
COURT:
Witness may answer.
A He used (it) in stabbing Dante Deopante
Q How did he (use) it?
A They were both lying on the ground when this Rogelio Deopante used that Balisong
or fan knife in stabbing the victim, only I did not know how many stabs he made on
the victim (but witness demonstrating as if he is stabbing) somebody from his right
hand going downward).[20]
Due to appellants failure to prove unlawful aggression by the victim, and in view of
the prosecutions evidence conclusively showing that it was appellant who was the
unlawful aggressor, appellants claims of self-defense must be completely discounted,
since even incomplete self-defense, by its very nature and essence, always would
require the attendance of unlawful aggression initiated by the victim which must clearly
be shown.  We agree with the finding of the trial court that:
[21]

There is no gainsaying the fact that the accused herein was responsible for slaying his
nephew and victim Dante Deopante. Only, by way of avoidance, the accused stated
that while he and his nephew were rolling and grappling on the ground, the latter took
a knife out of nowhere but he managed to wrest it away from his nephew and he
stabbed him (Dante Deopante) with it.

Such a posture adopted by the accused deserves scant consideration from the Court.

For one, the victim would not have time to draw a knife from his person and then
opened it while at the same time grappling with his uncle while both were rolling on
the ground.

For another, such declaration was self-serving on the part of the accused and remains
unsupported by the evidence. Even the accuseds own witness and fried for a long time
Benito Carrasco who professed that he was only about five to seven meters away from
the accused and who witnessed the latter grappling with the victim on the ground, did
not see Dante took out a knife and that the accused managed to wrest it away or else
the defense would certainly underscore such an event and made much of it during his
testimony in court. The fact that he did not state such a circumstance gave the lie to
such posture taken by the accused. [22]

Furthermore, based on the number of stab wounds sustained by the victim, we are
convinced that the accused did not act in self-defense in killing the former. It is an oft-
repeated rule that the presence of a large number of wounds on the part of the victim
negates self-defense; instead it indicates a determined effort to kill the victim.
 Accused, after struggling with the victim, had the latter on his back and in obviously
[23]

helpless and vulnerable position. Even assuming arguendo that it was the deceased

who had initiated the attack and accused was merely defending himself, clearly there
could not have been any need for him to stab the victim twice if the purpose was simply
to disable the victim or make him desist from his unlawful assault.

Fourth Issue: Credibility of Witnesses

We see no reason to disturb the trial courts evaluation and assessment of the
credibility of witnesses, the same not being tainted by any arbitrariness or palpable
error. Jurisprudence teaches us that the findings of the trial court judge who tried the
case and heard the witnesses are not to be disturbed on appeal unless there are
substantial facts and circumstances which have been overlooked and which, if properly
considered, might affect the result of the case. The trial judges evaluation of the witness
credibility deserves utmost respect in the absence of arbitrariness.  Furthermore,
[24]
conclusions and findings of the trial court are entitled to great weight on appeal and
should not be disturbed unless for strong and valid reasons because the trial court is in
a better position to examine the demeanor of the witnesses while testifying on the case.
[25]

We reviewed the entire record of the case, and found that the trial court correctly
gave credence to the testimonies of Manolo Angeles and Renato Molina. As aptly
stated by it:

So it is that the Court gave full credence to the eyewitnesses accounts of prosecution
witnesses Manolo Angeles and Renato Molina.

Both are disinterested eyewitnesses.

Manolo Angeles would not testify falsely against accused because the latter is the
uncle of the full blood of his wife, being the daugther of the sister of the accused. He
would not dare incur the wrath of his wife and her family, specially of the accused
whose temperament he well knew.

The same is true with Renato Molina. He resides nearby and in the same locality as
the accused and the victim, the latter being his childhood friend.

Knowing the accused very well and his reputation, he dare not trifle with the truth and
testify falsely against him. In fact, he was very reluctant to testify and it took the
coercive process of the Court to bring him to the witness stand.

Besides his presence at the scene of the stabbing incident was even acknowledged by
the accused himself during the trial so that this witness testimony is well worth
considering."[26]

Furthermore, we note and concur in the court a quos assessment of the testimony

of the son of the accused, which definitely tends to negate the theory of self-defense:

Again, another defense witness presented was Vladimir Deopante, son of the accused
who mentioned in passing during the course of his testimony that when informed of
an on-going quarrel involving hid father, he immediately proceeded to the place
where the incident was going on and there and then saw his father grappling on the
ground with his cousin Dante and the latter was holding a weapon with his left hand
so much so that he went back home and informed his mother about the matter and he
was instructed to go back and pacify the protagonists.

This portion of the testimony of Vladimir Deopante sounded incredulous and

unbelievable.
Confronted with a like situation, a son, seeing that his father being (beleaguered) and
in immediate danger of being stabbed and possibly killed, would instinctively and
intuitively rush in, come (to) succor and render immediate assistance to his
endangered parent and would not turn back on his father and go back home to await
instructions on what to do under the premises.

It may be that this witness was actually at the scene when he was his father and cousin
were grappling on the ground and seeing that his father had a knife in his hand and
had the upper hand as well as in control of the situation, he did not interfere but turned
back and went home and informed his mother. This would be more in keeping with
the natural course of events. [27]

Fifth issue: Incomplete Self-Defense

Appellant argues that the trial court should have applied Art. 69 of the Revised
Penal Code which provides for imposition of a penalty lower by one or two degrees than
that prescribed by law where the killing is not wholly excusable, as in the case at bar,
given the absence of some of the requisites to justify the killing. Appellant is in
error. Said provision of law applies only where a majority of the conditions required to
justify a criminal act or exempt from liability are present. Such is not the situation in the
case at bar. Unlawful aggression is indispensable in self-defense, complete or
otherwise. When unlawful aggression (by the victim) alone is proved, such incomplete
self-defense is to be appreciated as an ordinary mitigating circumstance under Article
13, paragraph 1 of the Revised Penal Code. When it is combined with another element
of self-defense, such incomplete self-defense becomes a privileged mitigating
circumstance under Article 69 of the same Code.  But in the instant case, as already
[28]

mentioned above, it was conclusively shown that appellant was the aggressor.
WHEREFORE, the herein appealed Decision convicting appellant Rogelio
Deopante y Carillo of the crime of murder and imposing on him the penalty of reclusion
perpetua and the payment to the victims heirs of civil indemnity in the amount
of P50,000.00 is hereby AFFIRMED in toto. No costs.
SO ORDERED.
Narvasa, C.J. (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.
 ECOND DIVISION

[G.R. No. 133580. July 20, 2001]

PEOPLE OF THE PHILIPPINES plaintiff and appellee, vs. MAXIMO

GENEBLAZO, accused-appellant.

DECISION
BUENA, J.:

Accused-appellant Maximino Geneblazo appeals the decision of the Regional

Trial Court at Calauag, Quezon, Branch 63 in Criminal Case No. 2151-C, entitled The
People of the Philippines versus Maximino Geneblazo, convicting him of murder and
sentencing him to reclusion perpetua.
On October 16, 1992, an information was filed against Maximino Geneblazo
charging him of murder committed as follows:

That on or about the 15th day of January 1988, at Barangay Pinagtalyeran,

Municipality of Calauag, Province of Quezon, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, armed with a bladed weapon, with
intent to kill, and with treachery, did then and there willfully, unlawfully and
feloniously attack, assault and stab with the said weapon one Domingo Opalsa,
thereby inflicting upon the latter wounds on the different parts of his body which
directly caused his death.

That the accused attacked and stabbed said Domingo Opalsa suddenly and
unexpectedly without giving the latter any opportunity to defend himself or to escape.

Contrary to law.[1]

Upon arraignment on December 3, 1992, accused Maximino Geneblazo, assisted

by counsel, pleaded not guilty to the crime charged. The Regional Trial Court
thereafter proceeded with the trial.
 Culled from the records are the following:
Alex Obien, the first witness for the prosecution, testified that on January 15,
1988, at around 12:00 midnight he and Domingo Opalsa were walking along Quezon
Street, Calauag, Quezon, bound for home when Maximino Geneblazo and around six
unknown companions stoned them. Obien and Opalsa retaliated by also throwing
stones at Geneblazo and company. However, upon seeing that Geneblazo was about to
draw his knife, they ran away.
Maximino Geneblazo caught up with Domingo Opalsa and stabbed the latter
twice the first stab landed on the left side of the body in the area of the armpit, while
the second landed on the left side of the face.
SPO1 Emmanuel Quiogue of the Philippine National Police, at Calauag, Quezon
was at home on the night in question. He heard a commotion outside. Peeping out the
window he saw some men throwing stones at each other. He got his gun and went
outside. Noticing the chase which ensued, he went after the men.
At the scene of the incident, SPO1 Quiogue saw two men almost locked in an
embrace. He fired his gun but the two did not draw apart so he stood between them so
as to separate them. One of the men fell to the ground while the person who was left
standing stabbed him. Only his finger was hit. He recognized the person who stabbed
him as Maximino Geneblazo.
Thereafter SPO1 Quiogue, Obien and Barangay Captain Torres of Pinagtalyeran
brought Opalsa to St. Peters Hospital where the latter was pronounced dead on arrival.
Maximino Geneblazo, who was the lone witness for the defense, testified that he
was standing in front of the market at about 12:00 midnight on January 15, 1988,
when two men who were drunk passed by. They challenged him to a fight. He
recognized these two men as Adie Obien and Momoy (Domingo Opalsa). When he
refused to fight them, the latter threw stones and flowerpots at him. Thereafter,
Geneblazo chased them for he wanted to know why he was being stoned and because
he wanted to get even.
Geneblazo caught up with Momoy. When he was about to box the latter, Momoy
drew out a knife. Momoy struck the bridge of the nose and finger of Geneblazo with
the knife. When Geneblazo fell down he heard a gunshot. Momoy was about to stab
Geneblazo again but when he heard the shot he was startled so the latter was able to
wrest the weapon from Momoy.
Geneblazo then stabbed Momoy in the abdomen. He was about to stab Momoy
again when SPO1 Quiogue arrived on the scene. While SPO1 Quiogue was pacifying
them, Geneblazo hit Momoy in the neck. As he did not recognize SPO1 Quiogue he
accidentally hit the latters left hand with the knife but when recognition dawned on
him who SPO1 Quiogue was, he ran away and hid until his surrender to a police
officer Baloloy.
Salvacion Opalsa y Conohan, the mother of the victim, testified for the
prosecution declaring that her family incurred expenses in the total amount of
P45,000.00 for the burial and wake of the victim. The P45,000.00 is broken down as
follows: P5,000.00 for funeral expense, P16,000.00 was spent during the wake,
P6,000.00 was expenses for the cemetery, P8,000.00 was spent to look for the
accused, an additional P5,000.00 for funeral services and P5,000.00 spent during the
nine-day prayers for the deceased after the interment. A certification from the Sutarez
Funeral Homes stating that it rendered funeral services to the late Domingo Opalsa in
the amount of P5,000.00[2] and a handwritten list of the expenses [3] were presented as
evidence.
On February 2, 1998, the trial court rendered a decision convicting the accused
the decretal position of which reads:

WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of
Murder, the Court hereby sentences the said accused to suffer the penalty of
RECLUSION PERPETUA and to pay P50,000.00 as moral damages and an
additional P45,000.00 as actual damages to the heirs of Domingo Opalsa and to pay
the costs.

SO ORDERED.[4]

Hence, this appeal where accused-appellant assigns the following errors allegedly
committed by the trial court:
I

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT

FOR THE CRIME OF MURDER, HAVING APPRECIATED THE QUALIFYING
CIRCUMSTANCE OF TREACHERY.
II

THE TRIAL COURT ERRED IN NOT CONSIDERING THE JUSTIFYING

CIRCUMSTANCE OF SELF-DEFENSE INTERPOSED BY THE ACCUSED-
APPELLANT.

The appeal is meritorious in the sense that the penalty should be lowered.
Accused-appellant Maximino Geneblazo alleges that he killed the victim
Domingo Opalsa in self-defense.
 Well-settled is the rule that in interposing self-defense, the offender admits
authorship of the killing. The onus probandi is thus shifted to him to prove the
elements of self-defense and that the killing was justified; otherwise, having admitted
the killing, conviction is inescapable. Concomitantly, he must rely on the strength of
his own evidence and not on the weakness of the prosecutions evidence. For self-
defense to prosper, it must be established that: (1) there was unlawful aggression by
the victim; (2) that the means employed to prevent or repel such aggression was
reasonable; and (3) that there was lack of sufficient provocation on the part of the
person defending himself.[5]
It was sufficiently established by the prosecution that the victim Domingo Opalsa
and his companion Alex Obien were merely walking on the road when they were
pelted with stones by Maximino Geneblazo and his companions; that Opalsa and
Obien retaliated; that they ran away when they saw that Geneblazo was about to draw
his knife; that Geneblazo pursued them; that Geneblazo stabbed Opalsa when he
caught up with the latter.
It is quite apparent that it was not the victim who committed the unlawful
aggression but the accused-appellant himself.
Unlawful aggression contemplates an actual, sudden and unexpected attack, or
imminent danger thereof, and not merely a threatening or intimidating attitude -- there
has to exist a real danger to the life or personal safety of the person claiming self-
defense.[6]
Assuming arguendo that the accused-appellants version of the events of the night
in question is the truth and that the unlawful aggression emanated from the victim and
his companion who were drunk at the time, the aggression ceased to exist when the
victim and his companion ran away. There was no longer any real danger to the life or
personal safety of the accused. An act of aggression, when its author does not persist
in his purpose, or when he discontinues his attitude to the extent that the object of his
attack is no longer in peril, is not unlawful aggression warranting self-defense. [7]
When accused-appellant Geneblazo pursued the two men, it was then that he
became the aggressor.
Finally, belying accused-appellants claim of self-defense is his testimony that as
soon as he grabbed the knife from the victim he stabbed the latter in the
abdomen. Still he didnt stop there. He again stabbed the victim in the neck even in the
presence of SPO1 Quiogue who arrived to pacify them.
Having divested the victim of his knife, the accused-appellant was placed at an
advantage as he already had control of the bladed weapon. The victim was therefore
left unarmed and accused-appellant Geneblazo did not testify nor is there anything on
record to show that the vicitm tried to grapple with him for possession of the knife. A
third person (a police officer, at that) was present to pacify them. There was really no
need for the accused-appellant to stab the victim. And his doing so revealed his
murderous intent.
However, the matter of whether or not the deceased was the aggressor is factual. It
is a settled rule that the trial court is in a better position to ascertain the facts under the
circumstances. In the absence of any justifiable reason, this Court is bound to uphold
the findings of the trial court.
The accused-appellant admitted that he recognized SPO1 Quiogue after he had
stabbed the victim for the second time. His taking flight and going into hiding instead
of surrendering to SPO1 Quiogue on the spot was highly evidentiary of guilt, and
incompatible with his claim of self-defense. Flight negates self-defense and indicates
guilt.[8]
The prosecution failed to prove that the qualifying circumstance of treachery was
present in this case. Treachery must be proven as clearly and as cogently as the crime
itself.[9]
The essence of treachery is the sudden and unexpected attack by an aggressor on
an unsuspecting victim, depriving the latter of any real chance to defend himself and
thereby ensuring its commission without risk to himself. [10]
When Opalsa and Obien were pelted with stones, they had the option of retaliating
or running away. They did both. First they threw stones at their attackers, and when
they saw that the accused-appellant was about to draw his knife they ran away. While
the stoning incident was sudden, the attack upon the victim was not. The victim,
aware that the accused-appellant was armed with a weapon, knew that the latter was
of a mind to use the weapon and that the only thing he could do to avoid being
wounded was to outrun the accused-appellant. Unfortunately the accused-appellant
caught up with Opalsa and inflicted a fatal stab on him which led to his demise. We
do not agree with the trial court that the killing was attended by treachery that would
make the accused-appellant guilty of the crime of murder. We find the accused-
appellant guilty of homicide only.
The trial court ordered the accused-appellant to pay P50,000.00 as moral damages
and an additional P45,000.00 as actual damages to the heirs of Domingo Opalsa and
to pay the costs.
The award of actual damages amounting to P45,000.00 to the heirs of the victim
cannot be sustained. Said amount was allegedly incurred in the interment of the
deceased. Except for the amount of P5,000.00 that was supported by a
certification/receipt, the sum of P40,000.00 was not substantiated by competent
evidence. The award of actual damages cannot rest on the bare allegation of the heirs
of the offended party.[11]
 In accordance with prevailing jurisprudence, civil indemnity in the amount of
P50,000.00 should be awarded to the heirs of the victim.
Based on our findings that homicide, not murder, was committed, the penalty
imposed upon accused-appellant should correspondingly be lowered to reclusion
temporal. There being no aggravating nor mitigating circumstance, the proper
imposable penalty should be reclusion temporal in its medium period. Applying the
Indeterminate Sentence Law, the minimum term is anywhere within the range
of prision mayor, or from 6 years and 1 day to 12 years, and the maximum within the
range of reclusion temporal in its medium period, or from 14 years, 8 months and 1
day to 17 years and 4 months.
IN VIEW WHEREOF, the decision of the Regional Trial Court at Calauag,
Quezon Br. 63, finding accused-appellant guilty of the crime of murder, is
MODIFIED. Instead, this Court finds accused-appellant Maximino Geneblazo guilty
of the crime of Homicide, and sentenced to suffer the indeterminate penalty of eight
(8) years and one (1) day of prision mayor medium, as minimum, to fourteen (14)
years, eight (8) months and one (1) day of reclusion temporal medium, as
maximum. The accused is ORDERED to pay the heirs of the victim civil indemnity in
the amount of P50,000.00, actual damages of P5,000.00, moral damages in the sum of
P50,000.00, and to pay the costs.
SO ORDERED.
Bellosillo, (Chairman), Mendoza and De Leon, Jr., JJ., concur.
Quisumbing, J., on official business.