Republic of the Philippines REGIONAL TRIAL COURT Sixth Judicial Region Branch 29 Chief Justice Ramon Q.

Avancea Hall of Justice Iloilo City PEOPLE OF THE PHILIPPINES CRIM. CASE NO. 05-60974 - versus For: MURDER IRENEO TABANGCURDA, Accused. x-----------------------------x

DECISION
For allegedly stabbing to death Catalino Sabando, accused Ireneo Tabangcurda is charged with Murder in an Information the pertinent portion of which is quoted hereunder:
That on or about January 3, 2005, in the Municipality of San Miguel, Province of Iloilo, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bladed instrument, with deliberate intent to kill, without justifiable motive and by means of treachery, wilfully, unlawfully and feloniously assault, attack and stab CATALINO SABANDO with the bladed instrument accused was provided at the time, hitting the victim on the chest which caused his death thereafter. CONTRARY TO LAW.

During the arraignment on July 14, 2005 said accused with the assistance of Atty. Ma. Zaida Q. Fresnido, pleaded not guilty. At the pre-trial, both parties agreed on the following, to wit: 1. 2. 3. 4. 5. 6. That the accused is the same person who stabbed the victim Catalino Sabando; That after stabbing the victim the accused did not report this incident to the Police Station of San Miguel, Iloilo; That the stabbing incident happened at night time; That the accused admit that the house of the victim Catalino Sabando is about 500 meters away from his house; That the house of the victim Catalino Sabando is about 20 meters away from the barangay road; That Ricky Sabando and Shino Sabando, the sons of the victim executed a Joint Affidavit attached to the criminal complaint filed by Police Inspector Levy Handayan Zamora used by the Provincial Prosecutor in appreciating the evidence during the preliminary investigation;

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7. Issues:

That it was the aforementioned sons of Catalino Sabando who assisted him or brought him to the hospital.

1. Whether or not accused is guilty of the felony charged; 2. Whether or not accused is civilly liable in view of the death of Catalino Sabando.

EVIDENCE
The prosecution presented Dr. Owen J. Lebaquin, Danilo Caol-olan, and Shico Sabando. While the defense presented the victims son Ricky Sabando, the victims wife Susanita Sabando, the accused and his son Sandy Tabangcurda. On rebuttal, the prosecution called Michelle Grime to the witness stand whose testimony was sur-rebutted by Ricky Sabando.

PROSECUTION
Dr. Owen J. Lebaquin, the Medico Legal Officer of the PNP Crime Laboratory, Camp Delgado, Iloilo City, whose expertise was admitted by the defense, testified that on January 5, 2005 he conducted an autopsy on the cadaver of Catalino Sabando y Saguan, hereinafter referred to as Catalino, at about 2:00 oclock in the afternoon at Saul Funeral Parlor, San Miguel, Iloilo. His findings as stated in Medico Legal Exam Report No. M-017-2005 (Exh. B) show that Catalino sustained three (3) wounds, with wound No. 1 classified as a mortal wound caused by a sharp pointed instrument secondary to a knife. This is located on the upper chest, left nipple area of the victim which caused his death. The second wound located on the left armpit is not fatal while the third, located on the left leg, is only a linear abrasion suffered by Catalino when he must have fallen down on a hard rough surface. All these wounds are located in the front portion of his body; his death was estimated to be about (4) hours after his last meal. He also identified Catalinos Certificate of Death (Exh. A). Danilo Caol-olan, a neighbor of Catalino at Sto. Nio, San Miguel, Iloilo was presented as an eyewitness. He identified the accused Ireneo Tabangcurda, hereinafter referred to as Ireneo and declared that at about 10:00 oclock in the evening of January 3, 2005, while urinating outside their house just near their kitchen, he heard a shout coming from Catalino saying there is somebody, there

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is somebody. He glanced at Catalinos house and he saw somebody who he recognized later as his Manong Iyong Tabangcurda or the herein accused Ireneo. His body movements was familiar to him, besides, there was light coming from inside Catalinos house. He saw Ireneo walk fast and disappeared in the banana clumps which was more or less five (5) armslength away from where he was. He also saw Catalino walk by when suddenly, Ireneo came out of the banana plants and stabbed Catalino twice. The latter hurriedly went back to his house shouting I was stabbed, I was stabbed but was unable to reach this because he fell to the ground. Ireneo, on the other hand, disappeared in the banana clumps. When said witness heard Catalinos cry for help, he immediately went towards him and tried to help. A few minutes later, Catalinos siblings and children came and they brought him to the Poblacion, then to the hospital. Said witness proceeded to the hospital but was informed father had passed away. The testimony of Catalinos son Shico Sabando, was presented purportedly to prove dying declaration and civil liability. He alleged that on January 3, 2005 at around 9:00 oclock in the evening, he was at the house of his aunt Lourdes Caol-olan located just beside their house. While there, he heard somebody shout he was stabbed. He recognized the voice to be that of his father so he ran towards their house and saw that he was indeed stabbed and was lying on his stomach in front of their house. He immediately awakened his brother Ricky so that they could bring him to the hospital. On their way to the Western Visayas Medical Center, their father told him that he was stabbed by Ireneo Tabangcurda. His father died before he reached the hospital. He was interred at San Miguel Cemetery with his uncle and aunt from his fathers side shouldering all the burial expenses. He also identified the receipts (Exh. D to D-5) for these. by the children that their

DEFENSE
The accused Ireneo Tabangcurda countered that he was instead the one attacked by Catalino. The latter was his buddy and he would often visit him in his nipa hut at Brgy. San Jose. At about 10:00 oclock in the evening of January 3, 2005, after returning from his farm in Brgy. San Jose, he dropped by the house of Catalino because he wanted to collect the fertilizer borrowed by the latter from him. It was his wife Susanita who entertained him because Catalino was already

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asleep. She told him that they will settle their obligation the following day because their palay will still have to be weighed. With that promise, he just decided to go home to his nipa hut. On his way out, he heard a door slam and upon looking back, he saw Catalino running after him with a bolo. He ran away but decided to finally face him. He noticed that he now had a knife. He grappled with him for its possession until Catalino fell to the ground. He then returned to his nipa hut. Sometime later, the policemen arrived so he immediately surrendered to them. He was detained at the lock up cell of San Miguel, Iloilo and while there, he had a chance to talk to Sherben Sabando, Catalinos son. After telling him what happened, Sherben remarked: what can we do, it was an accident. To disprove the testimony of witness Danilo Caol-olan, Catalinos son Ricky Sabando testified that on January 3, 2005, he was at their house at Brgy. Sto. Nio, San Miguel, Iloilo together with his father, mother and younger brother Reggie. At about 9:00 oclock in the evening, Ireneo arrived to collect payment for the debt his parents owed him. As they were not able to pay, Ireneo left but his father chased him with a bolo. Catching up with Ireneo, his father struck him but missed because he was able to parry the blow. He then got his knife and thrust this at Ireneo but the latter thrust this back at him. It was at this point that his father shouted that he was hit. He saw Ireneo hurriedly leave. He tended to his father and together with his brother Shico and Sandy Tabangcurda, they brought him to the municipal hall where he was transferred to an ambulance and later brought to the Western Visayas Medical Center. He denied having seen Danilo Caol-olan at the scene of the incident from the time his father was hit until he was brought to the hospital. Testifying also for the accused Ireneo, the victims wife Susanita Sabando declared that on January 3, 2005 at around 10 oclock in the evening, while she was home with her husband and two sons Reggie and Ricky, the accused Ireneo arrived to collect payment for the money they owe him but because they did not have the money to pay him, he just left. When her husband learned that Ireneo came to collect their debt, he immediately got his bolo from their kitchen and went outside. Although she tried to hold him back, he pushed her away causing her to fall so she just returned to their house. She saw Ricky ran outside and it was at this time that she heard her husband shout that he was stabbed. She also ran out and held him while her three sons, Ricky, Reggie, and Shico made provisions for him to be brought to the hospital.

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Sandy Tabangcurda, the son of Ireneo, alleged that he was supposed to have dinner at the house of the Sabandos but because Shico had an argument with his father Catalino, they proceeded instead to the house of their Auntie Purang to watch television. While there, they heard a shout that Catalino was stabbed so he immediately ran towards his house and there he saw Ricky cradling his father. He helped in loading him to a tricycle to be brought to the town proper so they could transfer him to an ambulance. On their way to the hospital, he heard Catalino sayhurry, hurry.

REBUTTAL
Michelle Grime was presented to rebut Ireneos testimony that he was chased by Catalino prior to the stabbing in front of his house. She averred that while she was home watching TV, she heard Catalino shout, there is a person. When she heard this, she went out of their front door and noticed that he was stabbed. He fell beside his house. She denied that there was a commotion before the incident because their house is just a house away from Catalinos and she did not hear anything.

SUR-REBUTTAL
Ricky Sabando was presented to counter the testimony of rebuttal witness Michelle Grime who claimed that she was present during and after the incident. He denied seeing her although he noticed her presence after the incident.

DISCUSSION/ANALYSIS
While Ireneo admitted stabbing Catalino during the pre-trial, the defense did not insist on a reverse trial, hence, the burden of proving the commission of the crime remained in the prosecution. Apparently, the accused was banking on his theory that the death of Catalino was accidental wrought by their grappling and wrestling for the possession of a knife such that the burden of proving selfdefense, which normally would have belonged to the accused did not come into play. While it may be true that the accused must prove his defense that the victim died accidentally when they grappled by clear and convincing evidence, the onus

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probandi stayed with the prosecution, thus, the regular course of trial was adopted. Before tackling the defense put up by Ireneo, the question to be resolved first is whether Catalinos killing was attended by treachery such that a conviction for Murder may be justified. From the Information, it is clear that only the circumstance of treachery qualified the charge to Murder. There is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from any defensive or retaliatory act which the victim might make. The essence of treachery is a deliberate and sudden attack that renders the victim unable and unprepared to defend himself by reason of the suddenness and severity of the attack. Two essential elements are required in order that treachery can be appreciated: (1) The employment of means, methods or manner of execution that would ensure the offender's safety from any retaliatory act on the part of the offended party who has, thus, no opportunity for self-defense or retaliation; and (2) deliberate or conscious choice of means, methods or manner of execution.
1

With the

foregoing as basis, was treachery established by the prosecution? Borne from the states evidence is its reliance on the testimony of its main witness Danny Caol-olan who claimed that he saw how the victim was killed but this Court is not convinced as his narration was tainted for the reason that he was answering a personal call of nature such that he is not shown to have an undivided attention to effectively claim that he saw the whole incident. His oral declaration is explicit:
Q A Q A Q A Q A When you heard the voice saying, may tawo, may tawo, have you finished with your urinating or you are still urinating? I was still urinating. And when you said you saw the accused and the suspect stabbed the victim have you started your urinating or you have finished already? I was about to finish my urinating. So in other words you have finished urinating? Not yet. So from that time you heard the voice, may tawo, may tawo, until the time you know the suspect stabbed the victim you were still urinating, is that correct? When I heard I was about to urinate and then when I saw the incident I was still urinating. 2

The banana clumps where the victim was allegedly assaulted by the accused was five to six arms length away from the place where he was answering natures call. Take note that this was already past ten in the evening with no clear
1 2

Pp vs Guevarra, et. al., GR No. 182192, October 29, 2008. p. 6, TSN, GVillanueva, September 28, 2007.

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illumination. True, the house of the victim was lighted but the banana clumps where he was wounded wasnt shown to be lighted at all, in the same manner that the place where he was urinating was likewise not lighted either. From where he was, he could not be certain what the two were doing although there is no question that the victim was stabbed. Here, Caol-olan even helped to establish the theory of the defense that there was chasing, i.e., when Ireneo left their house, Catalino chased him with a bolo, viz:
ATTY. LIRA: Q A Q A Q A Q A Q A Q A Q A Q A What happened after you saw this accused Ireneo Tabangcurda outside the house of the victim Catalino Sabando? I saw him walking fast towards the clumps of banana and there he disappeared. How far is this banana clamps from where you where urinating? More or less five (5) arms length. Now, you said that this accused Ireneo Tabangcurda hurriedly or hastily walked towards the banana clumps which is about five (5) arms length from where you were urinating? Yes, Sir. And then he disappeared on the banana clumps? Yes, Sir. What happened after that? Because I knew him, I continued urinating. What happened after that? When I glanced I also saw Catalino. He was there standing. Is he the same Catalino Sabando the victim in this case? Yes, Sir. Where did this Catalino Sabando came from if you can recall Mr. Witness? May be he came from their house. I do not know exactly where because at the moment I glanced, he was already there. 3

Worth taking into account is the statement of Caol-olan that he only glanced at what was taking place which simply proves that his senses werent focused on the protagonists as his full attention was on relieving himself. This eyewitness account also fell short in giving particulars to the prosecutions theory of treachery. Moreover, no explanation was given why Catalino would be near the banana clumps that night. No proof was presented to show that he was waylaid to veer towards that place. None was adduced to show that Ireneo was waiting in ambush for him. The wounds suffered by Catalino were all frontal. All these merely points to the fact that there was no treachery at all. By and large, the crime committed, as the evidence unfolded, changed the nature of the crime to Homicide only.

pp. 9 -10, TSN, MSaclote, March 23, 2007.

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This is such a peculiar case because the main witnesses for the defense are Catalinos own wife and son. The prosecution relied on the testimony of the following: the medico legal officer who testified on the fact of death of Catalino Sabando; Catalinos neighbor Danilo Caol-olan who allegedly saw the stabbing incident; and Shico Sabando who was supposed to corroborate Caol-olans declaration but ended up confirming only that part where he saw his father lying on his stomach already wounded. The rebuttal witness did not help any. She was situated about eight (8) meters away when she allegedly heard Catalino shout There is somebody and when she went out, she heard him say I was stabbed. No details about how he was stabbed was given except for her statement that there was no commotion. According to Dr. Lebaquin, the death of the victim was caused by a stab wound which was fatal in character. This was not disputed by the defense. In fact, in the pre-trial order Ireneo admitted that he stabbed Catalino but tried to justify the act claiming that this was due to accident. His story which was corroborated by Catalinos wife, Susanita and son Ricky had a ring of truth to it, moreso, because the prosecution has not shown any reason why Ireneo would want to kill Catalino. Simply put, the prosecution was unable to prove motive enough for Ireneo to entertain any treacherous assault on Catalino. Failing so, the prosecutions effort to topple the theory of the defense that the victim was killed because he and the accused grappled and wrestled for the possession of the weapon did not gain ground because the defense succeeded in establishing that on that fateful night, the accused was chased with a bolo which his attacker let loose during the skirmish that followed. This was propmtly replaced with a knife. It was at this stage that the accused made up his mind and howled selfdefense. But, will his recount of the incident exonerate him? The elements that the accused must establish by clear and convincing evidence to successfully plead self-defense are enumerated under Article 11(1) of the Revised Penal Code: ART. 11. Justifying circumstances. The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur; First. Unlawful aggression;

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Second. Reasonable necessity of the means employed to prevent or repel it; Third. Lack of sufficient provocation on the part of the person defending himself. As a justifying circumstance, self-defense may be complete or incomplete. It is complete when all the three essential requisites are present; it is incomplete when the mandatory element of unlawful aggression by the victim is present, plus any one of the two essential requisites. 4 By invoking self-defense, the accused must prove by clear and convincing evidence the elements of self-defense. The
aw

rule consistently adhered to in this jurisdiction is that when the accused admitted that he was the author of the death of the victim and his defense was anchored on self-defense, it becomes incumbent upon him to prove the justifying circumstance to the satisfaction of the court. The rationale for this requirement is
cralaw

that the accused, having admitted the felonious wounding or killing of his adversary, is to be held criminally liable for the crime unless he establishes to the satisfaction of the court the fact of self-defense. Thereby, however, the burden to prove guilt beyond reasonable doubt is not lifted from the shoulders of the State, which carries it until the end of the proceedings. In other words, only the onus probandi has shifted to him, because self-defense is an affirmative allegation that must be established with certainty by sufficient and satisfactory proof. He must
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now discharge the burden by relying on the strength of his own evidence, not on the weakness of that of the Prosecution, for, even if the Prosecution's evidence is weak, it cannot be disbelieved in view of the accused's admission of the killing. 5 In this case, the events as woven by the defense proved the existence of the first element. Not only did this version come from the mouth of the accused, this was confirmed by the wife of the victim and his son as well. As stated, when Catalino learned that Ireneo came to collect his account at past ten in the evening he got his bolo and knife from the kitchen and chased Ireneo, his lender. When he caught up with him, Ireneo tried to wrest the bolo from him thus a grappling for its possession ensued. Ireneo succeeded in wresting the bolo but Catalino had another weapon, a knife which he got from his pocket and pulled towards him. He parried this and again another session of wrestling and grappling took place but this time, Catalino was hit. Aggression presupposes that the person attacked must face a real threat to his life and the peril sought to
4 5

Guillermo vs. People, GR No. 153287, June 30, 2008. People vs. Mayingque, et. al., GR No. 179709, July 6, 2010.

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be avoided is imminent and actual, not imaginary. Absent such actual or imminent peril to ones life or limb, there is nothing to repel and there is no justification for taking the life or inflicting injuries on another.
6

The foregoing

account answers the query on whether the means to prevent and repel said aggression is reasonable. It appears to be so because the two persons who were grappling over a bolo and later, over a knife had presented a situation where the one attacked is facing a real threat to his life. As no evidence was presented about the height and structure of the two, it is safe to conclude that Catalino had an upper hand as he was armed with two weapons. The situation as presented show that Ireneo was on the defensive end while Catalino on the offensive. The third element is wanting though. Lack of sufficient provocation on the part of Ireneo was not well threshed. The events that unfolded, attest to this. By trying to collect payment for a loan at an unholy hour, said act must have gotten the goat of Catalino. True, our culture and mores encourages payment of accounts but this should be settled at a proper time and place. Take note that Catalino had just harvested his palay and had a drink right after. His palay has not even been weighed yet but his collector was overly prompt in collecting his loan that very night. Such unjust conduct would naturally incite anger and disgust from any ordinary person, especially so, when he had just been awakened and informed that his lender was there to collect a loan that night. The chasing by the victim of the accused with a bolo was unlawful aggression all right, but Catalino should not take all the brunt because Ireneo need also to be blamed for having given cause for the aggression. He incited or provoked Catalino in acting the way he did.

CONCLUSION
Culled from the foregoing disquisitions, it appears that the accused Ireneo was able to prove the presence of two elements, the primordial and essential one unlawful aggression against the person defending himself plus reasonable necessity of the means employed to prevent or repel it. Pursuant to Art. 69, Revised Penal Code, this Court applies the privileged mitigating circumstance of incomplete self defense and hereby credits him a penalty lower by one degree.

Manaban vs. CA, GR No. 150723, July 11, 2006.

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Although the accused briefly touched on voluntary surrender, which was not even made an issue in this case but just the same, an enlightening discussion on this regard will clear some cobwebs on the entitlement of the accused to such perception. The mitigating circumstance of voluntary surrender could not be considered as the essence of voluntary surrender is spontaneity and the intent of the accused to give himself up and submit himself unconditionally to the authorities either because he acknowledges his guilt or he wishes to save the authorities the trouble and expense that may be incurred for his search and capture. Without these reasons and where the clear reasons for the supposed surrender is the inevitability of arrest and the need to ensure his safety, the surrender cannot be spontaneous and cannot be the "voluntary surrender" that serves as a mitigating circumstance.
7

The accused himself admitted that after

the incident he went home and when the policemen arrived he surrendered to them. This kind of surrender cannot mitigate ones liability. It must be emphasized that at that time he was already a suspect and considered a fugitive. His arrest, therefore, imminent. The crime of Homicide is penalized by reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Considering the mitigating circumstance of incomplete self defense, the sentence should be taken from the penalty next lower in degree which is prision mayor in its medium period. Applying the Indeterminate Sentence Law, the maximum penalty shall be taken from the aforementioned period while the minimum penalty shall be taken from the penalty next lower in degree which is prision correccional, anywhere in its range from six (6) months and one (1) day to six (6) years. Now, to the civil aspect of this case. The claim by the victims son Shico Sabando for actual damages was duly established. He testified that his aunt and uncle spent Php60,365.00, some of which were issued receipts, notably OR No. 406 dated January 3, 2005 issued by Saul Funeral Homes in the sum of Php40,000.00 (Exh.D), and interment services issued by the Archdiocese of Parish of St. Michael, San Miguel, Iloilo under Acknowledgment Receipt No. 2190 dated January 25, 2004 in the sum of Php1,980.00 (Exh. D) . The rest are for food and the preparation of a tomb totalling Php18,385.00 (Exh. D-1; D2; D-3-a; D-3-b; D-5). The last two (2) items are patently reasonable and appropriate having been incurred according to Filipino customs and mores. As a natural consequence of this case, herein accused should be made to pay the
7

People vs Garcia, GR No. 174479, June 17, 2008, 554 SCRA 616, 637 also in De Vera vs. De Vera GR No. 172832, April 7, 2009

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total sum of Php 60,365,000.00 as actual and/or temperate damages. The award of moral damages in the amount of P50,000.00 is also proper as well as civil indemnity of Php50,000.00. No proof was adduced as to loss of indemnity.

WHEREFORE, premises considered, judgment is rendered finding the

accused GUILTY beyond reasonable doubt of the crime of Homicide penalized under Art. 249 of the Revised Penal Code. He is hereby sentenced to suffer the penalty of six (6) years of Prision Correcional maximum as MINIMUM to eight (8) years and one (1) Day of Prision Mayor medium as MAXIMUM. He is likewise ordered to pay the heirs of Catalino Sabando the following: 1.) 2.) 3.) 4.) Php50,000.00 as civil indemnity Php 50,000.00 as moral damages Php 60,365.00 as actual and temperate damages To pay the costs.

The sum of Php57,000.00 acknowledged to have been received by Susanita Sabando, wife of the victim Catalino Sabando, three (3) days after the interment of her husband shall be credited in favour of the accused. SO ORDERED. Iloilo City, Philippines, July 4, 2011.

GLORIA G. MADERO
Judge

/GGM/dsa /Decision/Crim/Tabangcurda