Chang vs.

People 496 SCRA 321

People vs. CA and Tangan 352 SCRA 599
People vs. Callet 382 SCRA 43
People vs. Sales 658 SCRA 367
Romera vs. People 434 SCRA 467
People vs. Torpio 431 SCRA 9

THIRD DIVISION
ROBERTO E. CHANG and
PACIFICO D. SAN MATEO,
Petitioners,

- versus -

PEOPLE OF THE
PHILIPPINES,
Respondent.

G.R. No. 165111

Present:
QUISUMBING, Chairperson,
CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
Promulgated:
July 21, 2006

x----------------------------------------------x
DECISION
CARPIO MORALES, J.:
On appeal is the July 2, 2004 Decision and August 23, 2004 Resolution of
the Sandiganbayan[1] finding herein petitioners Roberto E. Chang and Pacifico D.
San Mateo guilty beyond reasonable doubt of violation of Section 3(b) of

Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices
Act, and sentencing each of them to suffer the indeterminate penalty of
imprisonment from Six (6) Years and One (1) Month as minimum to Fifteen (15)
Years as maximum and perpetual disqualification from public office.
Petitioner Roberto Estanislao Chang (Chang) was the Municipal Treasurer
of Makati who was tasked to, among other things, examine or investigate tax
returns of private corporations or companies operating within Makati, and
determine the sufficiency or insufficiency of Income Tax assessed on them and
collect payments therefor. Petitioner Pacifico D. San Mateo (San Mateo) was the
Chief of Operations, Business Revenue Examination, Audit Division, Makati
Treasurers Office.
By Information dated June 20, 1991, petitioners were, along with Edgar
Leoncito Feraren (Feraren), a Driver-Clerk also of the Makati Treasurers Office,
charged before the Sandiganbayan to have willfully, unlawfully and criminally
demanded and received the amount of One Hundred Twenty Five Thousand Pesos
(P125,000) from Group Developers, Inc. (GDI) through its employee Mario Magat
(Magat) in consideration of the issuance by petitioners of a Certificate of
Examination that it had no tax liability to the Municipality, albeit it had not
settled the assessed deficiency tax in the amount of P494,000.[2] Thus the
Information read:
That on or about June 19, 1991, in Makati, Metro Manila and
within the jurisdiction of this Honorable Court, accused ROBERTO
ESTANISLAO CHANG, a public officer being the incumbent Municipal
Treasurer of Makati, Metro Manila and as such is tasked among others,
to examine or investigate corporate tax returns of private corporations or
companies operating within the municipality of Makati, Metro Manila, to
determine their compliance and/or insufficiency of Income Tax
Assessments thereon, and to collect payments corresponding thereto,
while in the performance of his official duties as such found Group
Developers Inc., to be owing the municipality in the form of tax
liabilities amounting to Four Hundred Ninety Four Thousand Pesos
(P494,000.00), conspiring and confederating with Pacifico Domingo San
Mateo, Chief of Operations, Business Revenue Examination, Audit
Division, Municipal Treasurers Office, Makati, Metro Manila, and

Edgar Leoncito Feraren, Driver-Clerk, Municipal Treasurers Office,

Makati, Metro Manila, who are both public officials, did then and there
willfully, unlawfully and criminally demand the amount of One Hundred
Twenty Five Thousand Pesos (P125,000.00) from the said corporation,
through Mario Magat, an employee of said corporation, in consideration
of the issuance of a Certificate of Examination that it had no tax
liability to the Municipality of Makati, Metro Manila, which he in fact
issued to the said corporation, notwithstanding the fact that the latter has
not paid any amount out of the P494,000.00.
CONTRARY TO LAW.

Gathered from the evidence for the prosecution is its following version:
By virtue of Letter-Authority No. M-90-245 dated June 18, 1990 issued by
the Office of the District Treasurer (District IV), Makati Treasurers Office
examiners Vivian Susan C. Yu and Leonila T. Azevedo conducted an examination
of the books of accounts and other pertinent records of GDI covering the period
from January 1985 to December 1989 in order to verify the true and correct
amount of tax due from its business operations.[3]
The examiners found that GDI incurred a tax deficiency inclusive of penalty
in the total amount of P494,601.11, the details of which follow:
Deficiency in the payment for business taxes in
1986 to 1990
Deficiency in the payments for Mayors Permit
& Garbage Fee
Surcharge Interest
Total Amount Due

P271,160.00
14,730.00
208,711.11
P494,601.11[4]

The Office of the Treasurer thus issued an Initial Assessment

Notice[5] dated January 25, 1991 to GDI for it to pay the tax deficiency within four
days from receipt.
No word having been received by the Office of the Treasurer from GDI, it
issued a Second Assessment Notice[6] dated February 14, 1991, reminding GDI to
settle the amount due within three days from receipt.

The assessment notices were personally received by Mario Magat (Magat),

Chief Operating Officer of GDI, in April 1991. Magat thereupon referred the
matter to the Accounting Department which informed him that the computations
and worksheets requested from the municipal auditors to enable it to validate the
assessment[7] had not been received.
Magat was later able to talk via telephone to San Mateo who had been
calling GDIs Accounting Department and requesting for someone with whom he
could talk to regarding the assessment.
On May 15, 1991, Magat and San Mateo met for lunch at the Makati Sports
Club. Chang later joined the two, and the three agreed that if GDI could
payP125,000 by the end of May 1991, the assessment would be resolved.[9]
[8]

On May 29, 1991, San Mateo went to Magats office at GDI to pick up the
check for the settlement of GDIs deficient tax liability. When Magat handed over
to San Mateo Interbank Managers Check No. 301715603 [10] in the amount
of P125,000 dated May 29, 1991 payable to the Municipal Treasurer of Makati,
San Mateo refused to accept the same, he uttering that Magat may have
misunderstood their agreement as the money would not be going to the
Municipality. Magat thereupon asked if Chang knew about the matter and San
Mateo replied that that was the agreement as understood by Chang. Magat then
informed San Mateo that he still had to consult with the top management of GDI
because what he understood was that GDI was settling the correct amount of taxes
to the Municipality.[11]
After consultation with the management of GDI, Magat repaired on May 30,
1991 to the offices of San Mateo and Chang at the Makati Treasurers Office
during which he was told that the payment was to absolve GDI from its tax
liability and if no payment is made, they would find ways to close GDI.[12]
On June 6, 1991, Magat met again for lunch with San Mateo and Chang at
the Makati Sports Club. Magat tried to convince the two that GDI wanted to pay
the correct amount of tax to the Municipality. He was advised by San Mateo and

Chang, however, that GDI had only two options: pay the P494,601.11 to the
Municipality or P125,000 to them.[13]
Magat thus consulted with Victor Puyat, president of GDI. Referral of the
matter to the National Bureau of Investigation (NBI) was considered.[14]
On June 12, 1991, Magat met with then NBI Deputy Director Epimaco
Velasco who advised him to file a complaint with the NBI. On even date, Magat
thus gave a sworn statement[15] before the NBI.
After the lapse of several days, Magat contacted San Mateo and asked him if
their position was still the same to which the latter replied in the affirmative, he
adding that if no payment was made, GDI would be closed. Magat thereafter
told San Mateo that he would deliver the P125,000 on June 19, 1991 at the Makati
Sports Club.[16]
On the morning of June 19, 1991, Magat informed the NBI that the payment
was to be made that day around lunchtime. The NBI immediately formed a team
to conduct an entrapment. On the request of the NBI, Magat brought hundred peso
bills to be added to the boodle money to be used in the entrapment operation. The
genuine as well as the boodle money and the brown envelope where the money
was placed were then laced with fluorescent powder.[17]
A few minutes before 11:30 a.m. of June 19, 1991, Magat together with
some NBI operatives, arrived at the Makati Sports Club. Two of the NBI agents
went with Magat to the restaurant and pretended to play billiards while Magat
occupied one of the tables.[18]
At 11:30 a.m., San Mateo arrived and joined Magat at his table. The two
took lunch after which San Mateo stood up and watched those playing billiards.
At12:00 noon, Chang and his driver Feraren arrived and joined Magat at the
table. After Chang and Feraren were through with their lunch, Magat told Chang
and San Mateo that GDI was ready to pay and asked them if they could give him
the Certificate of Examination showing that GDI had no more tax liability to the
municipality. Chang thereupon handed to Magat the Certificate of
Examination[19] issued to GDI with an annotation reading NO TAX LIABILITY

INVOLVED, following which Magat gave Chang the brown envelope. Chang
then passed the brown envelope on to his driver Feraren who in turn passed it on
to San Mateo who opened it and peeped at its contents. At that instant, the NBI
agents announced that they were being arrested.[20]
After their arrest, Chang, San Mateo and Feraren were brought to the NBI
headquarters where their respective hands were tested and found positive for
fluorescent powder.[21]
The defense, on the other hand, proffered the following tale:
On the invitation of GDI through one of its accounting clerks and a certain
Atty. Villarosa, San Mateo met with Atty. Villarosa for lunch in April 1991 during
which the latter requested for a reduction of the tax liability of GDI as it was
experiencing financial difficulties. San Mateo turned down the request.[22]
In the first week of May 1991, San Mateo met for lunch with Magat, on the
latters invitation at the Makati Sports Club. At said meeting, Magat reiterated the
request of Atty. Villarosa but San Mateo just the same turned it down.[23]
On May 29, 1991, Magat invited San Mateo to repair to his office at GDI, he
advising him that there was already a check in the amount of P494,610.11. San
Mateo did go to Magats office where he was given a white envelope containing a
managers check payable to the Municipal Treasurer of Makati in the amount
ofP125,000. He did not accept the check, however, as he did not have authority to
accept any payment less than that which was due from GDI.[24]
Magat later went to San Mateos office at the Municipal Treasurers Office
and tried to convince him to accept the P125,000 check but to no avail.[25]
On June 17, 1991, Magat called on San Mateo at the latters office and
conveyed Puyats invitation to Chang for lunch on June 19, 1991 at the Makati
Sports Club. San Mateo in turn relayed the invitation to Chang through the latters
driver, Feraren.[26]

On June 19, 1991, Magat, San Mateo, Chang and Feraren met for lunch at
the Makati Sports Club.
After lunch, San Mateo saw a brown envelope being tossed and suddenly
placed in front of him. As he held the brown envelope, several persons shouted
Arestado kayo, NBI ito. The NBI operatives got hold of the brown
envelope[27] and apprehended San Mateo, Chang and Feraren while Magat
disappeared.[28]
The Sandiganbayan, by the assailed Decision[29] of July 2, 2004, convicted
herein petitioners San Mateo and Chang and acquitted Feraren, disposing as
follows:
WHEREFORE, judgment is hereby rendered finding
accused Roberto E. Chang and Pacifico D. San Mateo GUILTY beyond
reasonable doubt for the violation of sec. 3 (b) of RA 3019 and are
hereby sentenced to each suffer the indeterminate penalty of
imprisonment from six (6) years and one (1) month as minimum to
fifteen (15) years as maximum and to each suffer the penalty of
perpetual disqualification from public office.
Anent accused Edgar L. Feraren, judgment is hereby
rendered finding him NOT GUILTY for the violation of sec. 3 (b) of RA
3019 for failure of the Prosecution to prove his guilt beyond reasonable
doubt and is hereby ACQUITTED. Consequently, the personal bail bond
posted by accused Edgar L. Ferraren is hereby ordered cancelled and the
Hold-Departure Order issued against the same accused is hereby
revoked and declared functus officio.[30]

Hence, the present petition, faulting the Sandiganbayan to have gravely erred
in:
I.
. . . HOLDING THAT PETITIONERS HAVE COMMITTED THE
CRIME CHARGED AND THAT THE ELEMENTS OF THE

OFFENSE UNDER SECTION 3 (B) OF RA 3019 HAVE BEEN

PROVEN BEYOND REASONABLE DOUBT.
II.
. . . HOLDING THAT THERE WAS CONSPIRACY ON THE PART OF
PETITIONERS IN COMMITTING THE CRIME CHARGED,
DESPITE LACK OF CLEAR AND CONVINCING EVIDENCE.

III.
. . . HOLDING THAT THE FAILURE OF PETITIONER ROBERTO E.
CHANG TO TAKE THE WITNESS STAND TO REBUT THE PIECES
OF EVIDENCE PRESENTED BY THE PROSECUTION, IS FATAL
TO HIS CAUSE, OVERLOOKING THE FACT THAT PETITIONER,
WHO IS ENTITLED TO HIS CONSTITUTIONAL RIGHT AGAINST
SELF-INCRIMINATION, CANNOT BE COMPELLED TO TESTIFY.
IV.
. . . NOT ACQUITTING PETITIONERS OF THE CRIME CHARGED,
THEIR GUILT NOT HAVING BEEN PROVEN BEYOND
REASONABLE DOUBT.[31] (Underscoring supplied)

Petitioners argue that the elements of the offense for which they were
charged were not proven beyond reasonable doubt.
On the presence of fluorescent powder in their hands, petitioners claim that
it was the result of involuntary contact when Magat tossed to them the brown
envelope.
At all events, petitioners claim that the circumstances surrounding the
supposed pay-off fail to show community of purpose or design which is the critical
element of conspiracy.

Maintaining their innocence, petitioners proffer that what transpired was not
an entrapment but an instigation, which is an absolutory cause in criminal
prosecution. They point out that when Magat went to the NBI on June 12, 1991,
no date, time or place was as yet known to them for purposes of the planned
entrapment, leading to no other conclusion except that all the activities on . . . June
19, 1991, the day of the supposed pay-off in the amount of P125,000, were all
orchestrated by . . . Magat so as not to lose face with the NBI.[32]
Finally, petitioners proffer that the failure of Chang to testify does not imply
guilt, he being entitled to his constitutional right against self-incrimination.
The petition fails.
Section 3(b) of the Anti-Graft and Corrupt Practices Act provides:
SEC. 3. Corrupt practices of public officers. In addition
to acts or omissions of public officers already penalized by existing law,
the following shall constitute corrupt practices of any public officer and
are hereby declared to be unlawful:
xxxx
(b) Directly or indirectly requesting or receiving any gift,
present, share, percentage, or benefit, for himself or for any other
person, in connection with any contract or transaction between the
Government and any other party, wherein the public officer in his
official capacity has to intervene under the law.

Peligrino v. People[33] restates the elements of the above-quoted offense as

summed up in Mejia v. Pamaran,[34] to wit: (1) the offender is a public officer (2)
who requested or received a gift, a present, a share, a percentage, or a benefit (3)
on behalf of the offender or any other person (4) in connection with a contract or
transaction with the government (5) in which the public officer, in an official
capacity under the law, has the right to intervene.

From a review of the records of the case, this Court finds that all the abovestated elements were satisfactorily established by the prosecution.
Petitioners were undisputedly public officers at the time of the commission
of the offense. The prosecution, as reflected in the above statement of its version,
not only established creditably how the offense charged was committed. It
established just as creditably how petitioners conspired to commit the crime.
Upon the other hand, the defense failed to overturn the evidence for the
prosecution.
Petitioners disclaimer of having demanded or requested anything from GDI
to settle its assessed deficiency tax does not persuade in light of, among other
things, San Mateos willingness and interest to meet in April, first week of May
and May 29, 1991 by his own account, with the officials of GDI outside his office,
despite the receipt in April 1991 by Magat of the First and Second Deficiency
Assessment Notices giving GDI four and three days, respectively, from receipt to
settle the assessed deficit taxes; the admitted refusal of San Mateo to accept the
check dated May 29, 1991 for P125,000 which was payable to the order of the
Municipality; and petitioners handing over to Magat the Certificate of
Examination dated May 28, 1991 on which was annotated NO TAX LIABILITY
INVOLVED. San Mateos justification behind such refusal that he had no
authority to accept an amount less than the assessment amount is too shallow to
merit belief, he being the Chief of Operations, Business Revenue Examination,
Audit Division of the Treasurers Office, who had, on those various meetings, gone
out of his way to negotiate the settlement of the assessed deficiency tax.
As to petitioners argument that what transpired on June 19, 1991 was an
instigation and not an entrapment, the same fails.
There is entrapment when law officers employ ruses and schemes to ensure
the apprehension of the criminal while in the actual commission of the crime.
There is instigation when the accused is induced to commit the crime. The
difference in the nature of the two lies in the origin of the criminal intent. In
entrapment, the mens reaoriginates from the mind of the criminal. The idea and the
resolve to commit the crime comes from him. In instigation, the law officer

conceives the commission of the crime and suggests to the accused who adopts the
idea and carries it into execution.[35]
From the evidence for the prosecution, it was clearly established that the
criminal intent originated from the minds of petitioners. Even before the June 19,
1991meeting took place, petitioners already made known to Magat that GDI only
had two options to prevent the closure of the company, either to pay the assessed
amount of P494,601.11 to the Municipality, or pay the amount of P125,000 to
them.
Respecting the failure of Chang to testify, it bears noting that the evidence
for the prosecution did establish beyond reasonable doubt the presence of
conspiracy as it did his and San Mateos guilt. The burden of the evidence having
shifted to him, it was incumbent for him to present evidence to controvert the
prosecution evidence. He opted not to, however. He is thus deemed to have
waived his right to present evidence in his defense.

WHEREFORE, the petition is DENIED. The challenged Sandiganbayan

decision is AFFIRMED.
SO ORDERED

FIRST DIVISION

[G.R. No. 103613. February 23, 2001]

PEOPLE OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and

ELADIO C. TANGAN, respondents.

[G.R. No. 105830. February 23, 2001]

ELADIO C. TANGAN, petitioner, vs. PEOPLE OF THE PHILIPPINES and

COURT OF APPEALS, respondents.
DECISION
YNARES-SANTIAGO, J.:
At around 11:30 p.m. of December 1, 1984, Navy Captain Eladio C. Tangan was driving
alone on Roxas Boulevard heading south. He had just come from Buendia Avenue on an
intelligence operation. At the same time, Generoso Miranda, a 29-year old optometrist, was
driving his car in the same direction along Roxas Boulevard with his uncle, Manuel Miranda,
after coming from the Ramada Hotel. Generoso was moving ahead of Tangan. Suddenly,
firecrackers were thrown in Generosos way, causing him to swerve to the right and cut Tangans
path. Tangan blew his horn several times. Generoso slowed down to let Tangan pass. Tangan
accelerated and overtook Generoso, but when he got in front, Tangan reduced speed. Generoso
tried four or five times to overtake on the right lane but Tangan kept blocking his lane. As he
approached Airport Road, Tangan slowed down to make a U-turn. Generoso passed him, pulled
over and got out of the car with his uncle. Tangan also stopped his car and got out. As the
Mirandas got near Tangans car, Generoso loudly retorted, Putang ina mo, bakit mo ginigitgit
ang sasakyan ko? Generoso and Tangan then exchanged expletives. Tangan pointed his hand
to Generoso and the latter slapped it, saying, Huwag mo akong dinuduro! Sino ka ba, ano ba
ang pinagmamalaki mo? Tangan countered, Ikaw, ano ang gusto mo? With this, Tangan went
to his car and got his .38 caliber handgun on the front seat. The subsequent events per account of
the parties respective witnesses were conflicting:

According to the prosecution witnesses, particularly, Mary Ann Borromeo, Rosalia

Cruz and Manuel Miranda, the accused pointed his gun at Generoso Miranda and
when Manuel Miranda tried to intervene, the accused pointed his gun at Manuel
Miranda, and after that the accused pointed again the gun to Generoso Miranda, the
accused shot Generoso Miranda at a distance of about a meter but because the arm of
the accused was extended, the muzzle of the gun reached to about more or less one
foot away from the body of Generoso Miranda. The shot hit the stomach of Generoso
Miranda causing the latter to fall and while still conscious, Generoso Miranda told

Manuel Miranda, his uncle, to get the gun. Manuel Miranda grappled for the
possession of the gun and during their grappling, Rosalia Cruz intervened and took
hold of the gun and after Rosalia Cruz has taken hold of the gun, a man wearing a red
T-shirt took the gun from her. The man in T-shirt was chased by Manuel Miranda who
was able to get the gun where the man in red T-shirt placed it.
On the other hand, the defense, particularly the accused and his witness by the name
of Nelson Pante claimed that after the gun was taken by the accused from inside his
car, the Mirandas started to grapple for possession of the gun and during the
grappling, and while the two Mirandas were trying to wrest away the gun from the
accused, they fell down at the back of the car of the accused. According to the
accused, he lost the possession of the gun after falling at the back of his car and as
soon as they hit the ground, the gun fell, and it exploded hitting Generoso Miranda. [1]
After the gun went off, Tangan ran away. Meanwhile, Generoso lay on the ground
bloodied. His uncle, Manuel, looked for the gun and ran after Tangan, joining the mob that had
already pursued him. Tangan found a policeman who allowed him to enter his patrol car. Manuel
arrived and told the policeman that Tangan had just shot his nephew. Then he went back to
where Generoso lay and there found two ladies, later identified as Mary Ann Borromeo and
Rosalina Cruz, helping his nephew board a taxi. Manuel suggested that Generoso be brought to
the hospital in his car. He was rushed to the Philippine General Hospital but he expired on the
way.
Tangan was charged with the crime of murder with the use of an unlicensed firearm. [2] After
a reinvestigation, however, the information was amended to homicide with the use of a licensed
firearm,[3] and he was separately charged with illegal possession of unlicensed firearm. [4] On
arraignment, Tangan entered a plea of not guilty in the homicide case, but moved to quash the
information for illegal possession of unlicensed firearm on various grounds. The motion to
quash was denied, whereupon he filed a petition for certiorari with this Court.[5] On November 5,
1987, said petition was dismissed and the joint trial of the two cases was ordered.[6]
During the trial, the prosecution and the defense stipulated on the following: that the
amount of P126,000.00 was incurred for the funeral and burial expenses of the victim; [7] that
P74,625.00 was incurred for attorneys fees; and that the heirs of Generoso suffered moral
damages, the amount of which is left for the courts to determine. After trial, the lower court
acquitted Tangan of illegal possession of firearm, but convicted him of homicide. The privileged
mitigating circumstance of incomplete self-defense and the ordinary mitigating circumstances of
sufficient provocation on the part of the offended party and of passion and obfuscation were
appreciated in his favor; consequently, the trial court ordered him to suffer an indeterminate
penalty of two (2) months of arresto mayor, as minimum, to two (2) years and four (4) months
of prision correccional, as maximum, and to indemnify the heirs of the victim. [8] Tangan was
released from detention after the promulgation of judgment [9] and was allowed bail in the
homicide case.
Private complainants, the heirs of Generoso Miranda, filed a petition for review with this
Court, docketed as G.R. No. 102677, challenging the civil aspect of the court a quos decision,

but the same was dismissed for being premature. On the other hand, Tangan appealed to the
Court of Appeals, which affirmed the judgment of the trial court but increased the award of civil
indemnity to P50,000.00.[10] His subsequent motion for reconsideration and a motion to cite the
Solicitor General in contempt were denied by the Court of Appeals.[11]
The Office of the Solicitor General, on behalf of the prosecution, alleging grave abuse of
discretion, filed a petition for certiorari under Rule 65, docketed as G.R. No. 103613, naming as
respondents the Court of Appeals and Tangan, where it prayed that the appellate courts judgment
be modified by convicting accused-appellant of homicide without appreciating in his favor any
mitigating circumstance.[12]Subsequently, the Office of the Solicitor General, this time acting for
public respondent Court of Appeals, filed a motion for extension to file comment to its own
petition for certiorari.[13] Discovering its glaring error, the Office of the Solicitor General later
withdrew its motion for extension of time.[14] Tangan filed a Reply asking that the case be
submitted for decision.[15]
Meanwhile, Tangan filed a separate petition for review under Rule 45, docketed as G.R. No.
105830.[16] Since the petition for certiorari filed by the Solicitor General remained unresolved, the
two cases were consolidated.[17] The Office of the Solicitor General filed a manifestation in G.R.
No. 105830, asking that it be excused from filing a comment to Tangans petition for review, in
order to avoid taking contradictory positions.[18]
In the recent case of People v. Velasco and Galvez,[19] we held that the prosecution cannot
avail of the remedies of special civil action on certiorari, petition for review on certiorari, or
appeal in criminal cases. Previous to that, we categorically ruled that the writ
of certiorari cannot be used by the State in a criminal case to correct a lower courts factual
findings or evaluation of the evidence.[20]
Rule 117, Section 7, of the Revised Rules of Criminal Procedure, is clear:

Former conviction or acquittal; double jeopardy. - When an accused has been

convicted or acquitted, or the case against him dismissed or otherwise terminated
without his express consent by a court of competent jurisdiction, upon a valid
complaint or information or other formal charge sufficient in form and substance to
sustain a conviction and after the accused had pleaded to the charge, the conviction or
acquittal of the accused or the dismissal of the case shall be a bar to another
prosecution for the offense charged, or for any attempt to commit the same or
frustration thereof, or for any offense which necessarily includes or is necessarily
included in the offense charged in the former complaint or information.
However, the conviction of the accused shall not be a bar to another prosecution for an
offense which necessarily includes the offense charged in the former complaint or
information under any of the following instances:
(a)
the graver offense developed due to supervening facts arising from the
same act or omission constituting the former charge;

(b)
the facts constituting the graver charge became known or were discovered
only after a pleas was entered in the former complaint or information; or
(c)
the plea of guilty to the lesser offense was made without the consent of
the fiscal and of the offended party, except as provided in section 1(f) of Rule 116.
In any of the foregoing cases, where the accused satisfies or serves in whole or in part
the judgment, he shall be credited with the same in the event of conviction for the
graver offense.
Based on the foregoing, the Solicitor Generals petition for certiorari under Rule 65, praying
that no mitigating circumstance be appreciated in favor of accused-appellant and that the penalty
imposed on him be correspondingly increased, constitutes a violation of Tangans right against
double jeopardy and should be dismissed.
We now come to the petition for review filed by Tangan. It is noteworthy that during the
trial, petitioner Tangan did not invoke self-defense but claimed that Generoso was accidentally
shot. As such, the burden of proving self-defense, [21] which normally would have belonged to
Tangan, did not come into play. Although Tangan must prove his defense of accidental firing by
clear and convincing evidence,[22]the burden of proving the commission of the crime remained in
the prosecution.
Both the trial court and the Court of Appeals appreciated in favor of Tangan the privileged
mitigating circumstance of incomplete self-defense under Article 13 (1), in relation to Article 11
(1), of the Revised Penal Code, to wit:

ARTICLE 11. Justifying circumstances. - The following do not incur any criminal
liability:
1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur:
First.

Unlawful aggression.

Second.

Reasonable necessity of the means employed to prevent or repel

it.

Third.

Lack of sufficient provocation on the part of the person defending

himself.

xxx

xxx

xxx

ARTICLE 13. Mitigating Circumstances. The following are mitigating

circumstances:

1. Those mentioned in the preceding Chapter, when all the requisites necessary to
justify the act or to exempt from criminal liability in the respective cases are not
attendant.
Incomplete self-defense is not considered as a justifying act, but merely a mitigating
circumstance; hence, the burden of proving the crime charged in the information is not shifted to
the accused.[23] In order that it may be successfully appreciated, however, it is necessary that a
majority of the requirements of self-defense be present, particularly the requisite of unlawful
aggression on the part of the victim.[24]Unlawful aggression by itself or in combination with either
of the other two requisite suffices to establish incomplete self-defense. Absent the unlawful
aggression, there can never be self-defense, complete or incomplete,[25] because if there is nothing
to prevent or repel, the other two requisites of defense will have no basis.[26]
There is no question that the bullet which hit the victim was fired from the caliber. 38, which
was issued to Tangan by the Philippine Navy. The cause of death was severe hemorrhage
secondary to gunshot wound of the abdomen, caused by the bullet fired from a gun of the said
caliber. The prosecution claimed that Tangan shot the victim point-blank in the stomach at a
distance of about one foot. On the other hand, Tangan alleged that when he grappled with
Generoso and Manuel Miranda for possession of the gun, it fell to the ground and accidentally
fired, hitting the victim.
When the testimonies of witnesses in open court are conflicting in substantial points, the
calibration of the records on appeal becomes difficult. It is the word of one party against the
word of the other. The reviewing tribunal relies on the cold and mute pages of the records, unlike
the trial court which had the unique opportunity of observing first-hand that elusive and
incommunicable evidence of the witness deportment on the stand while testifying. [27] The trial
courts assessments of the credibility of witnesses is accorded great weight and respect on appeal
and is binding on this Court,[28] particularly when it has not been adequately demonstrated that
significant facts and circumstances were shown to have been overlooked or disregarded by the
court below which, if considered, might affect the outcome hereof. [29]The rationale for this has
been adequately explained in that,

The trial court has the advantage of observing the witnesses through the different
indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion
or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer
or the forthright tone of a ready reply; or the furtive glance, the blush of conscious
shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the
calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of
the solemnity of an oath, and carriage and mien. [30]
Equally, when a person fabricates a story, he usually adopts a simple account because a
complex one might lead to entanglement from which he may find it hard to extricate
himself. Along the same line, the experience of the courts and the general observations of
humanity teach us that the natural limitations of our inventive faculties are such that if a witness
delivers in court a false narrative containing numerous details, he is almost certain to fall into
fatal inconsistencies, to make statements which can be readily refuted, or to expose in his

demeanor the falsity of his message.[31] Aside from this, it is not also unusual that the witness may
have been coached before he is called to the stand to testify.
Somewhere along the painstaking review of the evidence on record, one version rings the
semblance of truth, not necessarily because it is the absolute truth, but simply because it is the
best approximation of the truth based on the declarations of witnesses as corroborated by
material evidence. Perforce, the other version must be rejected. Truth and falsehood, it has been
well said, are not always opposed to each other like black and white, but oftentimes, and by
design, are made to resemble each other so as to be hardly distinguishable. [32] Thus, after
analyzing the conflicting testimonies of the witnesses, the trial court found that:

When the accused took the gun from his car and when he tried to get out of the car
and the two Mirandas saw the accused already holding the gun, they started to grapple
for the possession of the gun that it went off hitting Generoso Miranda at the
stomach. The court believes that contrary to the testimony of the accused, he never
lost possession of the gun for if he did and when the gun fell to the ground, it will not
first explode or if it did, somebody is not holding the same, the trajectory of the bullet
would not be perpendicular or horizontal. [33]
The Court of Appeals agreed -

The finding of the lower court that Generoso Miranda III was shot while the accused
and the Mirandas were grappling for the possession of the gun immediately after the
accused had taken his gun from inside his car and before the three allegedly fell to the
ground behind the car of the accused is borne out by the record. The court also agrees
with the court below that it was the accused-appellant who shot and killed Generoso
Miranda III. If the accused-appellant did not shoot Generoso III during the scuffle, he
would have claimed accidental killing by alleging that his gun exploded during the
scuffle instead of falsely testifying that he and the Mirandas fell to the ground behind
his car and the gun exploded in the possession of Manuel Miranda. The theory of the
prosecution that the shooting took place while the three were grappling for the
possession of the gun beside the car of appellant is completely in harmony with the
findings and testimony of Dr. Ibarrola regarding the relative position of the three and
the precarious nearness of the victim when accused-appellant pulled the trigger of his
gun. Dr. Ibarrola explained that the gun was about two (2) inches from the entrance
wound and that its position was almost perpendicular when it was fired. It was in fact
the closeness of the Mirandas vis--vis appellant during the scuffle for the gun that the
accused-appellant was compelled to pull the trigger in answer to the instinct of selfpreservation.[34]
No convincing reason appears for the Court to depart from these factual findings, the same
being ably supported by the evidence on record. In violent deaths caused by gunshot wounds,
the medical report or the autopsy on the cadaver of the victim must as much as possible narrate
the observations on the wounds examined. It is material in determining the truthfulness of the

events narrated by the witnesses presented. It is not enough that the witness looks credible and
assumes that he indeed witnessed the criminal act. His narration must be substantiated by the
physical evidence available to the court.
The medical examiner testified that the distance between the muzzle of the gun and the
target was about 2 inches but definitely not more than 3 inches. Based on the point of exit and
the trajectory transit of the wound, the victim and the alleged assailant were facing each other
when the shot was made and the position of the gun was almost perpendicular when fired.
[35]
These findings disprove Tangans claim of accidental shooting. A revolver is not prone to
accidental firing because of the nature of its mechanism, unless it was already first cocked and
pressure was exerted on the trigger. If it were uncocked, then considerable pressure had to be
applied on the trigger to fire the revolver.[36]
Having established that the shooting was not accidental, the next issue to be resolved is
whether Tangan acted in incomplete self-defense. The element of unlawful aggression in selfdefense must not come from the person defending himself but from the victim.
A mere threatening or intimidating attitude is not sufficient. [37] Likewise, the exchange of
insulting words and invectives between Tangan and Generoso Miranda, no matter how
objectionable, could not be considered as unlawful aggression, except when coupled with
physical assault.[38] There being no lawful aggression on the part of either antagonists, the claim
of incomplete self-defense falls. Tangan undoubtedly had possession of the gun, but the
Mirandas tried to wrestle the gun from him. It may be said that the former had no intention of
killing the victim but simply to retain possession of his gun. However, the fact that the victim
subsequently died as a result of the gunshot wound, though the shooter may not have the
intention to kill, does not absolve him from culpability. Having caused the fatal wound, Tangan
is responsible for all the consequences of his felonious act. He brought out the gun, wrestled
with the Mirandas but anticipating that the gun may be taken from him, he fired and fled.
The third requisite of lack of sufficient provocation on the part of the person defending
himself is not supported by evidence. By repeatedly blocking the path of the Mirandas for
almost five times, Tangan was in effect the one who provoked the former. The repeated blowing
of horns, assuming it was done by Generoso, may be irritating to an impatient driver but it
certainly could not be considered as creating so powerful an inducement as to incite provocation
for the other party to act violently.
The appreciation of the ordinary mitigating circumstances of sufficient provocation and
passion and obfuscation under Article 13, paragraphs 4 and 6, [39] have no factual basis. Sufficient
provocation as a requisite of incomplete self-defense is different from sufficient provocation as a
mitigating circumstance. As an element of self-defense, it pertains to its absence on the part of
the person defending himself; while as a mitigating circumstance, it pertains to its presence on
the part of the offended party. Besides, only one mitigating circumstance can arise out of one
and the same act.[40] Assuming for the sake of argument that the blowing of horns, cutting of lanes
or overtaking can be considered as acts of provocation, the same were not sufficient. The word
sufficient means adequate to excite a person to commit a wrong and must accordingly be
proportionate to its gravity.[41] Moreover, Generosos act of asking for an explanation from
Tangan was not sufficient provocation for him to claim that he was provoked to kill or injure
Generoso.[42]

For the mitigating circumstance of passion and obfuscation to be appreciated, it is required

that (1) there be an act, both unlawful and sufficient to produce such a condition of mind; and (2)
said act which produced the obfuscation was not far removed from the commission of the crime
by a considerable length of time, during which the perpetrator might recover his normal
equanimity.[43]
In the case at bar, Tangan could not have possibly acted upon an impulse for there was no
sudden and unexpected occurrence which wuld have created such condition in his mind to shoot
the victim. Assuming that his path was suddenly blocked by Generoso Miranda due to the
firecrackers, it can no longer be treated as a startling occurrence, precisely because he had
already passed them and was already the one blocking their path. Tangans acts were done in the
spirit of revenge and lawlessness, for which no mitigating circumstance of passion or obfuscation
can arise.
With respect to the penalty, under the laws then existing, homicide was penalized
with reclusion temporal,[44] but if the homicide was committed with the use of an unlicensed
firearm, the penalty shall be death.[45] The death penalty, however, cannot be imposed on Tangan
because in the meantime, the 1987 Constitution proscribed the imposition of death penalty; and
although it was later restored in 1994, the retroactive application of the death penalty is
unfavorable to him. Previously, the accused may be prosecuted for two crimes: (1) homicide or
murder under the Revised Penal Code and (2) illegal possession of firearm in its aggravated form
under P.D. 1866.[46]
P.D. 1866 was amended by R.A. No. 8294, [47] which provides that if an unlicensed firearm is
used in murder or homicide, such use of unlicensed firearm shall be appreciated as an
aggravating circumstance and no longer considered as a separate offense,[48] which means that
only one offense shall be punished murder or homicide. However, this law cannot apply
retroactively because it will result in the imposition on Tangan of the maximum period of the
penalty. Moreover, under Rule 110, Section 8 of the Revised Rules of Criminal Procedure, [49] the
aggravating circumstance must be alleged in the information. Being favorable, this new rule can
be given retroactive effect as they are applicable to pending cases. [50] In any case, Tangan was
acquitted of the illegal possession case.
Consequently, Tangan should be sentenced to suffer the penalty of reclusion
temporal. Pursuant to Article 64 of the Revised Penal Code, if the prescribed penalty is
composed of three periods, and there is neither mitigating nor aggravating circumstance, the
medium period shall be applied. Applying the Indeterminate Sentence law, the maximum of the
indeterminate penalty shall be that which, in view of the attendant circumstances, may be
properly imposed, which in this case is reclusion temporal medium with an imprisonment range
of from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four
(4) months. The minimum of the indeterminate sentence shall be the next lower degree which
is prision mayor with a range of from six (6) years and one (1) day to twelve (12) years. [51]Hence,
petitioner Tangan is sentenced to an indeterminate penalty of six (6) years and one (1) day
of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal, as maximum.
The death indemnity of P30,000.00 was correctly increased by the appellate court to
P50,000.00 in line with jurisprudence.[52] Moral damages are awarded in criminal cases involving
injuries if supported by evidence on record,[53] but the stipulation of the parties in this case

substitutes for the necessity of evidence in support thereof. Though not awarded below, the
victims heirs are entitled to moral damages in the amount of P50,000.00 which is considered
reasonable considering the pain and anguish brought by his death.[54]
WHEREFORE, the petition in G.R. No. 103613 is DISMISSED. The appealed decision
subject of G.R. No. 105830 is AFFIRMED with the following MODIFICATIONS:
(1) Tangan is sentenced to suffer an indeterminate penalty of six (6) years and one (1) day
of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal, as maximum, with all the accessory penalties.
(2) Tangan is ordered to pay the victims heirs P50,000.00 as civil indemnity, P42,000.00 as
funeral and burial expenses, P5,000.00 as attorneys fees, and P50,000.00 as moral damages.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 135701

May 9, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ELBERT CALLET y SABANAL, accused-appellant.
PUNO, J.:
The accused, ELBERT CALLET y SABANAL was charged with Murder before the Regional Trial
Court of Negros Oriental, Dumaguete City, Branch 30. The crime was allegedly committed as
follows:1
"That on or about 5:00 o'clock in the afternoon of September 15, 1996,
at Barangay Tambulan, Tayasan, Negros Oriental, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused with intent to kill, evident premeditation and
treachery, did then and there willfully, unlawfully and feloniously attack, assault and stab one
ALFREDO SENADOR with the use of a knife with which the said accused was then armed
and provided, thereby inflicting upon said victim the following injury, to wit:
A stab wound measuring two (2) cm. in length, 0.3 cm. in width and eleven (11) cm.
in deepness located at the left side of the trunk, about two (2) cm. above the left
clavicular bone. The wound was directed downward and slightly to the right.
which injury or wound caused the death of said ALFREDO SENADOR shortly thereafter.
Contrary to Article 248 of the Revised Penal Code."
When arraigned on June 11, 1997, the accused pled "not guilty." 2
The prosecution presented the testimonies of Dr. Rogelio Kho, Lecpoy Senador, Eduardo Perater,
Manuel Gabonales and Francisca Senador. For the defense, the accused, Elbert Callet, PO3 Roy
Balasabas, BarangayCaptain Dominador Calijan and Nilo Callet testified.
The evidence for the prosecution shows that on September 15, 1996, at 5:00 p.m., the victim,
Alfredo Senador, his 12-year old son, Lecpoy Senador, and Eduardo Perater were at the flea market
of barangay Tambulan, Tayasan, Negros Oriental. There were many people in the vicinity. Some
were playing cara y cruz while others were playing volleyball.
Alfredo, Lecpoy and Eduardo were beside each other as they watched a cara y cruz game. Alfredo
sat close to the ground, with his buttocks resting on his right foot. Lecpoy and Eduardo sat on a
piece of wood and on a stone, respectively.
Out of nowhere, the accused, Elbert Callet, appeared behind Alfredo and stabbed the latter on the
left shoulder near the base of the neck with a 9-inch hunting knife. Instinctively, Alfredo stood up and

managed to walk a few meters. When he fell on the ground, Lecpoy and Eduardo rushed to help him
but to no avail. Alfredo died shortly thereafter.
Manuel Gabonales was also at the flea market at that time. At 5:00 p.m., he saw people running
away from the place where there was a cara y cruz game. Next, he saw Alfredo and the accused.
Alfredo was soaked in blood while the accused was running towards the basketball court. He asked
Alfredo what happened to him. Alfredo replied that the accused stabbed him. The accused was then
standing at the basketball court. Manuel helped Lecpoy and Eduardo carry Alfredo under a mango
tree. He thought of bringing Alfredo to the hospital when he saw blood oozing from his mouth. After a
moment, Alfredo died.
Dr. Rogelio Kho, Municipal Health Officer at Tayasan, autopsied the body of Alfredo on September
16, 1996. The doctor found a stab wound on the left shoulder of Alfredo, near the base of the neck.
He opined that the victim died due to "severe hemorrhage and irreversible shock due to stab
wound."3
The defense gave a different account of the stabbing incident.
Allegedly, at 3:00 p.m., the accused, Elbert Callet, played volleyball near the flea market. After two
(2) games, he stopped playing. It was past 4:00 p.m. He stayed at the flea market and watched as
others played volleyball. While watching the game, he was hit on the left side of the body by
Alfredo's elbow. He asked Alfredo why he hit him. Alfredo retorted, "Are you angry?" Next, Alfredo
grabbed his left arm and tried to twist it. He pleaded with Alfredo to let go of his arm, but Alfredo
warned that he would be his third victim if he would get angry with him. As Alfredo was pulling out a
hunting knife from his waist, he (the accused) managed to stab him first. Thereafter, he ran towards
the municipal hall to surrender.
Dominador Calijan, the Barangay Captain of Tayasan, happened to be at the basketball court near
the scene of the crime. He encountered Alfredo along the road after the stabbing incident. Alfredo
had a stab wound on the lower nape. Calijan asked Alfredo who stabbed him and the latter gave the
name of the accused. He directed hisbarangay tanods to arrest the accused.
Barangay tanods Nilo Callet and Jesus Dagodog were able to catch up with the accused three (3)
kilometers away from the scene of the crime. He was still holding the hunting knife and refused to
surrender it for fear that the relatives of Alfredo would retaliate. The barangay tanods escorted him to
the municipal hall. Along the way, they asked him why he stabbed Alfredo. The accused replied that
he could not help it and that everything happened too fast. Upon reaching the municipal hall, the
accused surrendered the hunting knife. He was turned over to PO3 Roy Balasbas for investigation.
After the trial, the accused was found guilty of murder. The fallo of the trial court's decision4 states:
"WHEREFORE, finding the accused ELBERT CALLET Y SABANAL guilty beyond a scintilla
of doubt for the crime of MURDER penalized under Article 248 of the Revised Penal Code,
taking into account the mitigating circumstance of voluntary surrender without any
aggravating circumstance, the accused is hereby sentenced to RECLUSION PERPETUA
with all the accessory penalties provided under Article 41 of the Revised Penal Code.
Accused is ordered to pay the legal heirs of Alfredo Senador the sum of Fifty Thousand
Pesos (P50,000.00) as indemnity for his death.
Costs against the accused."

Hence, the appeal. The accused contends that:5

"1. THE HONORABLE REGIONAL TRIAL COURT GRAVELY ERRED AND COMMITTED
GRAVE ABUSE IN FINDING THAT THE ACCUSED KILLED THE VICTIM WITH
TREACHERY;
2. THE HONORABLE REGIONAL TRIAL COURT GRAVELY ERRED AND COMMITTED
GRAVE ABUSE IN FINDING THAT THE ACCUSED FAILED TO PROVE THE ELEMENTS
OF SELF-DEFENSE;
3. THE HONORABLE REGIONAL TRIAL COURT GRAVELY ERRED IN FAILING TO
CONSIDER THE MITIGATING CIRCUMSTANCE THAT THE ACCUSED DID NOT INTEND
TO COMMIT SO GRAVE A WRONG."
We affirm. The conviction of the accused is clearly supported by the evidence.
Two (2) eyewitnesses positively identified the accused, Elbert Callet, as the one who fatally stabbed
the victim, Alfredo Senador. Eyewitness Lecpoy Senador testified as follows: 6
"(PROS. HERMOSA):
Q:
About that time 5:00 'clock in the afternoon on September 15, 1996, where were you
and your companions situated or stationed since you said you were particularly at the flea
market?
xxx

xxx

xxx

A:

We were in Tambulan.

Q:

In what particular place were you at the flea market?

A:

In the place where there was a "cara y cruz".

xxx

xxx

xxx

Q:
What were you and your father as well as Eduardo Perater doing at that moment at
5:00 o'clock on September 15 at the place where there was a game of "cara y cruz"?
A:

We were looking at the "cara y cruz".

Q:
While you were looking at the "cara y cruz" game, do you recall if there was an
unusual incident that happened?
A:

Yes, there was.

Q:

What was this unusual incident that happened?

A:

My father was stabbed.

Q:

Who stabbed your father?

A:

Elbert Callet.

Q:

Elbert Callet whom you just identified a while ago?

A:

Yes.
xxx

xxx

xxx

Q:

Where was Elbert Callet in relation to your father when he stabbed your father?

A:

At the back of my father.

Q:

What was the position of your father when he was stabbed by the accused?

A:

He was sitting.

Q:

Where was your father hit if you know?

A:

Left shoulder.

Q:

What happened after Elbert Callet stabbed your father?

A:

My father walked.

Q:

Towards what place?

A:

Towards the area where there was a volleyball game.

Q:

And what eventually happened to him?

A:

He fell down.

Q:

And then, what happened after he fell down?

A:

We carried him to a place where there was a mango tree.

xxx

xxx

xxx

Q:
tree?

What happened or what transpired after you brought your father towards the mango

A:

My father died.

Q:

After stabbing your father, what did Elbert Callet do if he did anything?

A:

He ran away.

Q:

What did he use in stabbing your father?

A:

Hunting knife."

(emphases ours)
Another eyewitness, Eduardo Perater, testified as follows: 7
"(PROS. HERMOSA):
Q:
All right, at about 5:00 o'clock in the afternoon of that day, can you recall if there was
an unusual incident that happened?
A:

Yes, there was.

Q:

What was that unusual incident?

A:

There was a stabbing incident.

Q:

Who was stabbed?

A:

Alfredo Senador.

Q:

Who stabbed Alfredo Senador?

A:

Elbert Callet.

Q:

The same Elbert Callet whom you just identified a while ago in the courtroom?

A:

Yes.

Q:
What was the position of Alfredo Senador when he was stabbed by Elbert
Callet?
A:

He was sitting down.

Q:
Will you please demonstrate to us the manner how Alfredo Senador was sitting down
at the time when he was stabbed by the accused in this case?
A:

(Witness in squatting position, he was sitting with his buttock on his right foot).
xxx

xxx

xxx

Q:

Where was Elbert Callet situated when he stabbed Alfredo Senador?

A:

At the back of Alfredo Senador.

Q:
Was there any argument between Alfredo Senador and Elbert Callet before
Alfredo Senador was stabbed?
A:

There was none.

xxx

xxx

xxx

Q:

How many times did Elbert Callet stab Alfredo Senador?

A:

Only one (1).

Q:

Was Alfredo hit when he was stabbed by Elbert Callet?

A:

Yes.

Q:

In what part of the body of Alfredo Senador was hit?

A:

In the left shoulder.

xxx

xxx

xxx

Q:

What happened after Alfredo Senador was hit by the stabbing of Elbert Callet?

A:

He stood up.

Q:

What did Elbert Callet use in stabbing Alfredo Senador?

A:

A hunting knife.
xxx

xxx

xxx

Q:

What about Elbert Callet, what did he do after stabbing Alfredo Senador?

A:

He ran away.

Q:

What did he do with his knife which he used in stabbing Alfredo senador?

A:

He carried it with him."

(emphases ours)
We give full faith and credit to the testimonies of Lecpoy and Eduardo. Their testimonies were vivid
with details. They were clear and consistent with each other.
The accused laments that Lecpoy Senador is a biased witness, being a son of the victim. We are not
convinced.
The fact that Lecpoy is a son of the victim would not necessarily make him untrustworthy. This Court
has ruled that "(b)lood relationship between a witness and the victim does not by itself impair the
credibility of witnesses. On the contrary, relationship may strengthen credibility, for it is unnatural for
an aggrieved relative to falsely accuse someone other than the real culprit. The earnest desire to
seek justice for a dead kin is not served should the witness abandon his conscience and prudence
and blame one who is innocent of the crime." 8 Significantly, there is no showing that this young
eyewitness has any ill motive to testify falsely against the accused.

To be sure, even without the testimony of Lecpoy, the testimonies of Eduardo Perater and Manuel
Gabonales would suffice to convict the accused. They are disinterested witnesses. 9 Their
identification of the accused as the assailant is beyond question.
Still assailing the credibility of the eyewitnesses, the accused points out that in the joint affidavit 10 of
Lecpoy and Eduardo, it was stated that the victim was "standing with his back facing Elbert Callet."
However, they contradicted their affidavit when they testified at the trial that the victim was "sitting,
with his buttocks resting on his right foot."
The cited inconsistency will not exculpate the accused. We quote with approval the following
observations of the trial court:11
"In the instant case, the direct and candid testimonies of eyewitnesses Lecpoy Senador
and Eduardo Perater clearly showed that the killing of Alfredo Senador was attended by
treachery. Alfredo Senador was sitting with his buttocks on his right foot watching the game
of "cara y cruz" when Elbert Callet who was at the back of the victim stabbed him using a
nine (9) inch hunting knife hitting him near the base of his neck. The victim was not in a
position to defend himself from the accused who deliberately and consciously positioned
himself at the back of the unsuspecting victim to ensure the accomplishment of his evil
desire without risk to himself. The location of the stab wound at the left side of the trunk
about two (2) centimeters from the base of the neck and four (4) centimeters above the left
clavicular bone with a deepness of eleven (11) centimeters directed downward and slightly to
the right also suggests that the accused deliberately and consciously selected that part of
the human body to ensure the instantaneous death of the victim. Although the counsel of the
accused tried to discredit the testimonies of the prosecution witnesses by pointing that in
their joint affidavit dated 20 September 1996 Lecpoy Senador and Eduardo Perater stated
that Alfredo Senador was "standing" when he was stabbed, the said discrepancy could not
in any way affect the categorical, candid, consistent and straightforward declaration
of the said eyewitnesses made in open court that Alfredo Senador was sitting when he
was stabbed by the accused. Discrepancies between sworn statements or affidavits
and testimonies made at the witness stand do no necessarily discredit the
witnesses (People vs. Ferrer, 255 SCRA 19). This is because it is a matter of judicial
experience that an affidavit being taken ex parte is almost always incomplete and
often inaccurate (People vs. Castillo, 261 SCRA 493). Moreover, as noted by this Court the
word "standing" was superimposed after the original typewritten word was erased using a
snopic (sic) or white substance." (emphases ours)
In addition, we note that Lecpoy and Eduardo did not countersign the superimposition in the subject
affidavit. In the absence of clear proof that they confirmed the change, they should not be bound by
it.
The accused invokes self-defense for his acquittal. In self-defense, the burden of proof rests upon
the accused. Thus, he must present clear and convincing evidence that the following elements are
present, to wit: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent
or repel it; and (3) lack of sufficient provocation on the part of the person defending himself. 12 The
accused failed to discharge this task.
The accused alleged that he and the victim had hunting knives during their encounter. After the
victim's elbow hit the left side of his body, the victim grabbed his left arm and tried to twist it with his
right arm. A verbal exchange ensued between them and then the victim, using the left arm tried to
unsheathe the knife that was tucked at his left side. However, the victim was not able to pull out the
knife because it got entangled with his shirt tucked in his pants. In defense, the accused allegedly

pulled out his own knife that was tucked in the right side of his waist using his left arm and stabbed
the victim on the left shoulder. He then retreated and left as the victim was still trying to approach
him.13
The version of the accused does not inspire belief. The incident happened in plain view of many
witnesses at the flea market. He even claimed he was with a certain Guale and one Sonny Boy at
that time.14 Yet, nobody corroborated his story. Indeed, his narration on how the victim "attacked" him
is improbable. In the witness chair, he admitted that the victim was bigger than him and that his left
hand was restrained by the victim.15 It is thus incredible how he could pull out his knife from his right
side, with the use of his left hand,16 raise that knife high enough to hit the shoulder of the victim and
inflict an 11-cm. deep wound upon him. It is more probable that the victim was sitting down when the
accused attacked him from behind as the prosecution witnesses testified. Equally incredulous is the
claim that after being injured, the victim still tried to approach and attack him, hence, he had to
retreat. The accused's uncorroborated plea of self-defense cannot be entertained, especially when it
is, in itself, extremely doubtful.17
The Information charged that evident premeditation and treachery attended the commission of the
crime. The evidence failed to prove evident premeditation. Evident premeditation requires proof of:
(1) the time when the accused decided to commit the crime; (2) an overt act manifestly indicating
that he has clung to his determination; and (3) sufficient lapse of time between the decision and the
execution to allow the accused to reflect upon the consequences of his act. 18 The records show that
the prosecution did not adduce any evidence to prove these elements.
Treachery or alevosia exists when the offender commits any of the crimes against the person,
employing means, methods or forms in the execution thereof which tend directly and specially to
insure its execution, without risk to himself arising from the defense which the offended party might
make.19
The trial court correctly held that treachery qualified the killing of the victim to murder. The stabbing
was from behind, done in a sudden and unexpected manner while the victim was sitting close to the
ground, with his buttocks resting on his right foot, and while his attention was focused on the ongoing cara y cruz game.20 Clearly, the victim was not able to defend himself from the mode of attack.
The trial court also correctly credited the accused with voluntary surrender to mitigate his liability.
Voluntary surrender requires that the offender had not been actually arrested; that he surrendered
himself to a person in authority or to the latter's agent; and that the surrender was voluntary.
The records reveal that the accused ran toward the municipal building after the stabbing incident. On
his way to the municipal building, he admitted to Barangay Tanods Nilo Callet and Jesus Dagodog
that he stabbed the victim. Although he did not immediately turn over his weapon to them for fear of
retaliation from the victim's relatives, he did so as soon as they reached the municipal building.
Undoubtedly, the conduct he displayed was spontaneous as it shows his interest to give himself up
unconditionally to the authorities, thus saving the State the trouble and expenses necessarily
incurred in his search and capture. 21
The accused also claims that his liability should be mitigated by the fact that he had no intention to
commit so grave a wrong. We are not persuaded.
The lack of "intent" to commit a wrong so grave is an internal state. It is weighed based on the
weapon used, the part of the body injured, the injury inflicted and the manner it is inflicted. The fact
that the accused used a 9-inch hunting knife in attacking the victim from behind, without giving him

an opportunity to defend himself, clearly shows that he intended to do what he actually did, and he
must be held responsible therefor, without the benefit of this mitigating circumstance. 22
As the killing was attended by treachery, the accused is liable for the crime of murder. The
prescribed penalty therefor is reclusion perpetua to death.23 In view of the presence of the mitigating
circumstance of voluntary surrender, the trial court correctly meted the penalty
of reclusion perpetua against the accused.
The civil indemnity awarded in favor of the legal heirs of the victim, Alfredo Senador, in the amount
of P50,000.00 is in accord with the Court's current policy.
IN VIEW WHEREOF, the decision appealed from, finding the accused, ELBERT CALLET, guilty
beyond reasonable doubt of Murder in Criminal Case No. 12995, and sentencing him to
suffer reclusion perpetua and to pay the legal heirs of the victim, ALFREDO SENADOR, the amount
of P50,000.00 as civil indemnity, and to pay the costs, is AFFIRMED.
Costs against accused-appellant.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Kapunan, Ynares-Santiago, and Austria-Martinez, JJ., concur.

Republic of the Philippines

Supreme Court
Manila
FIRST DIVISION
PEOPLE OF THE PHILIPPINES,
Appellee,

G.R. No. 177218

Present:

- versus -

CORONA, C.J., Chairperson,

LEONARDO-DE CASTRO,
BERSAMIN,
DEL CASTILLO, and
VILLARAMA, JR., JJ.

NOEL T. SALES,
Promulgated:
Appellant.
October 3, 2011
x------------------------------------------------------------------x

DECISION
DEL CASTILLO, J.:
A father ought to discipline his children for committing a misdeed. However, he
may not employ sadistic beatings and inflict fatal injuries under the guise of disciplining
them.
This appeal seeks the reversal of the December 4, 2006 Decision [1] of the Court
of Appeals (CA) in CA-G.R. CR-H.C. No. 01627 that affirmed the August 3, 2005 Joint
Decision[2] of the Regional Trial Court (RTC), Branch 63 of Calabanga, Camarines Sur
in Criminal Case Nos. RTC03-782 and RTC03-789, convicting appellant Noel T. Sales

(appellant) of the crimes of parricide and slight physical injuries, respectively. The
Information[3] for parricide contained the following allegations:
That on or about the 20th day of September, 2002, at around or past
8:00 oclock in the evening at Brgy. San Vicente, Tinambac, Camarines Sur,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused with evident premeditation and [in] a fit of anger, did then and
there willfully, unlawfully and feloniously hit [several] times, the different
parts of the body of his legitimate eldest son, Noemar Sales, a 9-year old
minor, with a [piece of] wood, measuring more or less one meter in length and
one [and] a half inches in diameter, [thereby] inflicting upon the latter mortal
wounds, which cause[d] the death of the said victim, to the damage and
prejudice of the latters heirs in such amount as may be proven in court.
ACTS CONTRARY TO LAW.[4]

On the other hand, the Information [5] in Criminal Case No. RTC03-789 alleges
that appellant inflicted slight physical injuries in the following manner:
That on or about the 20th day of September, 2002, at around or past
8:00 oclock in the evening, at Brgy. San Vicente, Tinambac, Camarines Sur,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed [accused] assault[ed] and hit with a piece of wood, one Noel Sales, Jr.,
an 8-year old minor, his second legitimate son, thereby inflicting upon him
physical injuries which have required medical attendance for a period of five
(5) days to the damage and prejudice of the victims heirs in such amount as
may be proven in court.
ACTS CONTRARY TO LAW.[6]

When arraigned on April 11, 2003 and July 1, 2003, appellant pleaded not guilty
for the charges of parricide[7] and slight physical injuries[8] respectively. The cases were
then consolidated upon manifestation of the prosecution which was not objected to by the
defense.[9] During the pre-trial conference, the parties agreed to stipulate that appellant is
the father of the victims, Noemar Sales (Noemar) and Noel Sales, Jr. (Junior); that at the
time of the incident, appellants family was living in the conjugal home located
in BarangaySan Vicente, Tinambac, Camarines Sur; and, that appellant voluntarily
surrendered to the police.[10]

Thereafter, trial ensued.

The Version of the Prosecution
On September 19, 2002, brothers Noemar and Junior, then nine and eight years
old, respectively, left their home to attend the fluvial procession of Our Lady of
Peafrancia without the permission of their parents. They did not return home that
night. When their mother, Maria Litan Sales (Maria), looked for them the next day, she
found them in the nearby Barangay of Magsaysay. Afraid of their fathers rage, Noemar
and Junior initially refused to return home but their mother prevailed upon them. When
the two kids reached home at around 8 oclock in the evening of September 20, 2002, a
furious appellant confronted them. Appellant then whipped them with a stick which was
later broken so that he brought his kids outside their house. With Noemars and Juniors
hands and feet tied to a coconut tree, appellant continued beating them with a thick piece
of wood. During the beating Maria stayed inside the house and did not do anything as
she feared for her life.
When the beating finally stopped, the three walked back to the house with
appellant assisting Noemar as the latter was staggering, while Junior fearfully
followed. Maria noticed a crack in Noemars head and injuries in his legs. She also saw
injuries in the right portion of the head, the left cheek, and legs of Junior. Shortly
thereafter, Noemar collapsed and lost consciousness. Maria tried to revive him and when
Noemar remained motionless despite her efforts, she told appellant that their son was
already dead. However, appellant refused to believe her. Maria then told appellant to call
a quack doctor. He left and returned with one, who told them that they have to bring
Noemar to a hospital. Appellant thus proceeded to take the unconscious Noemar to the
junction and waited for a vehicle to take them to a hospital. As there was no vehicle and
because another quack doctor they met at the junction told them that Noemar is already
dead, appellant brought his son back to their house.
Noemars wake lasted only for a night and he was immediately buried the
following day. His body was never examined by a doctor.
The Version of the Defense

Prior to the incident, Noemar and Junior had already left their residence on three
separate occasions without the permission of their parents. Each time, appellant merely
scolded them and told them not to repeat the misdeed since something untoward might
happen to them. During those times, Noemar and Junior were never physically harmed
by their father.
However, Noemar and Junior again left their home without their parents
permission on September 16, 2002 and failed to return for several days. Worse, appellant
received information that his sons stole a pedicab. As they are broke, appellant had to
borrow money so that his wife could search for Noemar and Junior. When his sons
finally arrived home at 8 oclock in the evening of September 20, 2002, appellant scolded
and hit them with a piece of wood as thick as his index finger. He hit Noemar and Junior
simultaneously since they were side by side. After whipping his sons in their buttocks
three times, he noticed that Noemar was chilling and frothing. When Noemar lost
consciousness, appellant decided to bring him to a hospital in Naga City by waiting for a
vehicle at the crossroad which was seven kilometers away from their house.
Appellant held Noemar while on their way to the crossroad and observed his
difficulty in breathing. The pupils of Noemars eyes were also moving up and
down. Appellant heard him say that he wanted to sleep and saw him pointing to his chest
in pain. However, they waited in vain since a vehicle never came. It was then that
Noemar died. Appellant thus decided to just bring Noemar back to their house.
Appellant denied that his son died from his beating since no parent could kill his
or her child. He claimed that Noemar died as a result of difficulty in breathing. In fact,
he never complained of the whipping done to him. Besides, appellant recalled that
Noemar was brought to a hospital more than a year before September 2002 and
diagnosed with having a weak heart.
On the other hand, Maria testified that Noemar suffered from epilepsy. Whenever
he suffers from epileptic seizures, Noemar froths and passes out. But he would regain
consciousness after 15 minutes. His seizures normally occur whenever he gets hungry or
when scolded.

[11]

The death of Noemar was reported to the police by the barangay captain.
Thereafter, appellant surrendered voluntarily.[12]

Ruling of the Regional Trial Court

In a Joint Decision,[13] the trial court held that the evidence presented by the
prosecution was sufficient to prove that appellant was guilty of committing the crimes of
parricide and slight physical injuries in the manner described in the Informations. In the
crime of parricide, the trial court did not consider the aggravating circumstance of evident
premeditation against appellant since there is no proof that he planned to kill
Noemar. But the trial court appreciated in his favor the mitigating circumstances of
voluntary surrender and lack of intent to commit so grave a wrong. The dispositive
portion of said Joint Decision reads:
WHEREFORE, in view of the foregoing, the prosecution having
proven the guilt of Noel Sales, beyond reasonable doubt, he is found guilty of
parricide in Crim. Case No. RTC03-782 and sentenced to suffer the penalty of
reclusion perpetua. He is likewise ordered to pay the heirs of Noemar Sales,
the amount of P50,000.00 as civil indemnity; P50,000.00 as moral
damages; P25,000,00 as exemplary damages and to pay the costs.
Furthermore, accused Noel Sales is also found guilty beyond
reasonable doubt of the crime of slight physical injuries in Crim. Case No.
RTC03-789 and sentenced to suffer the penalty of twenty (20) days of Arresto
Menor in its medium period.
Accused Noel Sales is likewise meted the accessory penalties as
provided under the Revised Penal Code. Considering that herein accused has
undergone preventive imprisonment, he shall be credited in the service of his
sentence with the time he has undergone preventive imprisonment in
accordance with and subject to the conditions provided for in Article 29 of the
Revised Penal Code.
SO ORDERED.[14]

Appellant filed a Notice of Appeal [15] which was given due course in an
Order[16] dated September 21, 2005.
Ruling of the Court of Appeals

However, the appellate court denied the appeal and affirmed the ruling of the trial
court. The dispositive portion of its Decision[17] reads as follows:
WHEREFORE, premises considered, the appeal is DENIED. The
assailed decision dated August 3, 2005 in Criminal Case Nos. RTC03-782
and RTC03-789 for Parricide and Slight Physical Injuries, respectively,
is AFFIRMED.
Pursuant to Section 13(c), Rule 124 of the Revised Rules of Criminal
Procedure, appellant may appeal this case to the Supreme Court via a Notice
of Appeal filed before this Court.
SO ORDERED.[18]

Issues
Hence, appellant is now before this Court with the following two-fold issues:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE
CRIMES CHARGED.
II
THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT TO
THE TESTIMONIES OF THE DEFENSE WITNESSES.[19]

Our Ruling
The appeal is without merit.
The Charge of Parricide
Appellant admits beating his sons on September 20, 2002 as a disciplinary
measure, but denies battering Noemar to death. He believes that no father could kill his
own son. According to him, Noemar had a weak heart that resulted in attacks consisting

of loss of consciousness and froth in his mouth. He claims that Noemar was conscious
as they traveled to the junction where they would take a vehicle in going to a
hospital. However, Noemar had difficulty in breathing and complained of chest
pain. He contends that it was at this moment that Noemar died, not during his whipping.
To substantiate his claim, appellant presented his wife, Maria, who testified that Noemar
indeed suffered seizures, but this was due to epilepsy.
The contentions of appellant fail to persuade. The imposition of parental
discipline on children of tender years must always be with the view of correcting their
erroneous behavior. A parent or guardian must exercise restraint and caution in
administering the proper punishment. They must not exceed the parameters of their
parental duty to discipline their minor children. It is incumbent upon them to remain
rational and refrain from being motivated by anger in enforcing the intended
punishment. A deviation will undoubtedly result in sadism.
Prior to whipping his sons, appellant was already furious with them because they
left the family dwelling without permission and that was already preceded by three other
similar incidents. This was further aggravated by a report that his sons stole a pedicab
thereby putting him in disgrace. Moreover, they have no money so much so that he still
had to borrow so that his wife could look for the children and bring them home. From
these, it is therefore clear that appellant was motivated not by an honest desire to
discipline the children for their misdeeds but by an evil intent of venting his anger. This
can reasonably be concluded from the injuries of Noemar in his head, face and legs. It
was only when Noemars body slipped from the coconut tree to which he was tied and
lost consciousness that appellant stopped the beating. Had not Noemar lost
consciousness, appellant would most likely not have ceased from his sadistic act. His
subsequent attempt to seek medical attention for Noemar as an act of repentance was
nevertheless too late to save the childs life. It bears stressing that a decent and
responsible parent would never subject a minor child to sadistic punishment in the guise
of discipline.
Appellant attempts to evade criminal culpability by arguing that he merely
intended to discipline Noemar and not to kill him. However, the relevant portion of
Article 4 of the Revised Penal Code states:
Art. 4. Criminal liability. Criminal liability shall be incurred:

1.
By any person committing a felony (delito) although the
wrongful act done be different from that which he intended.
xxxx

In order that a person may be criminally liable for a felony different from that
which he intended to commit, it is indispensible (a) that a felony was committed and (b)
that the wrong done to the aggrieved person be the direct consequence of the crime
committed by the perpetrator.[20] Here, there is no doubt appellant in beating his son
Noemar and inflicting upon him physical injuries, committed a felony. As a direct
consequence of the beating suffered by the child, he expired. Appellants criminal
liability for the death of his son, Noemar, is thus clear.
Appellants claim that it was Noemars heart ailment that caused his death
deserves no merit. This declaration is self-serving and uncorroborated since it is not
substantiated by evidence. While Dr. Salvador Betito, a Municipal Health Officer of
Tinambac, Camarines Sur issued a death certificate indicating that Noemar died due to
cardio-pulmonary arrest, the same is not sufficient to prove that his death was due mainly
to his poor health. It is worth emphasizing that Noemars cadaver was never
examined. Also, even if appellant presented his wife, Maria, to lend credence to his
contention, the latters testimony did not help as same was even in conflict with his
testimony. Appellant testified that Noemar suffered from a weak heart which resulted in
his death while Maria declared that Noemar was suffering from epilepsy. Interestingly,
Marias testimony was also unsubstantiated by evidence.
Moreover, as will be discussed below, all the elements of the crime of parricide are
present in this case.
All the Elements of Parricide are present in the
case at bench.
We find no error in the ruling of the trial court, as affirmed by the appellate court,
that appellant committed the crime of parricide.
Article 246 of the Revised Penal Code defines parricide as follows:

Art. 246. Parricide. Any person who shall kill his father, mother,
or child, whether legitimate or illegitimate, or any of his ascendants, or
descendants, or his spouse, shall be guilty of parricide and shall be punished
by the penalty of reclusion perpetua to death.

Parricide is committed when: (1) a person is killed; (2) the deceased is killed by
the accused; (3) the deceased is the father, mother, or child, whether legitimate or
illegitimate, or a legitimate other ascendant or other descendant, or the legitimate spouse
of accused.[21]
In the case at bench, there is overwhelming evidence to prove the first element,
that is, a person was killed. Maria testified that her son Noemar did not regain
consciousness after the severe beating he suffered from the hands of his
father. Thereafter, a quack doctor declared Noemar dead. Afterwards, as testified to by
Maria, they held a wake for Noemar the next day and then buried him the day
after. Noemars Death Certificate[22] was also presented in evidence.
There is likewise no doubt as to the existence of the second element that the
appellant killed the deceased. Same is sufficiently established by the positive testimonies
of Maria and Junior. Maria testified that on September 20, 2002, Noemar and his
younger brother, Junior, were whipped by appellant, their father, inside their house. The
whipping continued even outside the house but this time, the brothers were tied side by
side to a coconut tree while appellant delivered the lashes indiscriminately. For his part,
Junior testified that Noemar, while tied to a tree, was beaten by their father in the
head. Because the savagery of the attack was too much for Noemars frail body to
endure, he lost consciousness and died from his injuries immediately after the incident.
As to the third element, appellant himself admitted that the deceased is his
child. While Noemars birth certificate was not presented, oral evidence of filial
relationship may be considered.[23] As earlier stated, appellant stipulated to the fact that
he is the father of Noemar during the pre-trial conference and likewise made the same
declaration while under oath.[24] Maria also testified that Noemar and Junior are her sons
with appellant, her husband. These testimonies are sufficient to establish the relationship
between appellant and Noemar.

Clearly, all the elements of the crime of parricide are obtaining in this case.
There is Mitigating Circumstance of Voluntary
Surrender but not Lack of Intention to Commit
so Grave a Wrong
The trial court correctly appreciated the mitigating circumstance of voluntary
surrender in favor of appellant since the evidence shows that he went to the police station
a day after the barangay captain reported the death of Noemar. The presentation by
appellant of himself to the police officer on duty in a spontaneous manner is a
manifestation of his intent to save the authorities the trouble and expense that may be
incurred for his search and capture[25] which is the essence of voluntary surrender.
However, there was error in appreciating the mitigating circumstance of lack of
intention to commit so grave a wrong. Appellant adopted means to ensure the success of
the savage battering of his sons. He tied their wrists to a coconut tree to prevent their
escape while they were battered with a stick to inflict as much pain as possible. Noemar
suffered injuries in his face, head and legs that immediately caused his death. The
mitigating circumstance of lack of intent to commit so grave a wrong as that actually
perpetrated cannot be appreciated where the acts employed by the accused were
reasonably sufficient to produce and did actually produce the death of the victim. [26]
The Award of Damages and Penalty for
Parricide
We find proper the trial courts award to the heirs of Noemar of the sums
of P50,000.00 as civil indemnity, and P50,000.00 as moral damages. However, the
award of exemplary damages of P25,000.00 should be increased to P30,000.00 in
accordance with prevailing jurisprudence.[27] In addition, and in conformity with
current policy, we also impose on all the monetary awards for damages an interest at the
legal rate of 6% from the date of finality of this Decision until fully paid.[28]
As regards the penalty, parricide is punishable by reclusion perpetua to death.
The trial court imposed the penalty of reclusion perpetua when it considered the
presence of the mitigating circumstances of voluntary surrender and lack of intent to

commit so grave a wrong. However, even if we earlier ruled that the trial court erred in
considering the mitigating circumstance of lack of intent to commit so grave a wrong, we
maintain the penalty imposed. This is because the exclusion of said mitigating
circumstance does not result to a different penalty since the presence of only one
mitigating circumstance, which is, voluntary surrender, with no aggravating
circumstance, is sufficient for the imposition of reclusion perpetua as the proper prison
term. Article 63 of the Revised Penal Code provides in part as follows:
Art. 63. Rules for the application of indivisible penalties. - x x x
In all cases in which the law prescribes a penalty composed of two
indivisible penalties, the following rules shall be observed in the application
thereof:
xxxx
3. When the commission of the act is attended by some mitigating
circumstance and there is no aggravating circumstance, the lesser penalty shall
be applied.
xxxx

The crime of parricide is punishable by the indivisible penalties of reclusion

perpetua to death. With one mitigating circumstance, which is voluntary surrender, and
no aggravating circumstance, the imposition of the lesser penalty of reclusion
perpetua and not the penalty of death on appellant was thus proper.[29]
The Charge of Slight Physical Injuries
The victim himself, Junior testified that he, together with his brother Noemar,
were beaten by their father, herein appellant, while they were tied to a coconut tree. He
recalled to have been hit on his right eye and right leg and to have been examined by a
physician thereafter.[30] Maria corroborated her sons testimony.[31]
Juniors testimony was likewise supported by Dr. Ursolino Primavera, Jr. (Dr.
Primavera) of Tinambac Community Hospital who examined him for physical
injuries. He issued a Medical Certificate for his findings and testified on the same. His

findings were (1) muscular contusions with hematoma on the right side of Juniors face
just below the eye and on both legs, which could have been caused by hitting said area
with a hard object such as a wooden stick and, (2) abrasions of brownish color circling
both wrist with crust formation which could have been sustained by the patient due to
struggling while his hands were tied. When asked how long does he think the injuries
would heal, Dr. Primavera answered one to two weeks. [32] But if applied with
medication, the injuries would heal in a week.[33]
We give full faith and credence to the categorical and positive testimony of
Junior that he was beaten by his father and that by reason thereof he sustained
injuries. His testimony deserves credence especially since the same is corroborated by
the testimony of his mother, Maria, and supported by medical examination. We thus find
that the RTC correctly held appellant guilty of the crime of slight physical injuries.
Penalty for Slight Physical Injuries
We likewise affirm the penalty imposed by the RTC. Dr. Primavera testified that
the injuries sustained by Junior should heal in one week upon medication. Hence, the
trial court correctly meted upon appellant the penalty under paragraph 1, Article 266 of
the Revised Penal Code which provides:
ART. 266. Slight Physical Injuries and maltreatment. The crime of
slight physical injuries shall be punished:
1.
By arresto menor when the offender has inflicted physical
injuries which shall incapacitate the offended party for labor from one to nine
days or shall require medical attendance during the same period.
xxxx

There being no mitigating or aggravating circumstance present in the

commission of the crime, the penalty shall be in its medium period. The RTC was thus
correct in imposing upon appellant the penalty of twenty (20) days of arresto menor in
its medium period.
WHEREFORE, the appeal is DENIED. The Decision of the Court of
Appeals in CA-G.R. CR-H.C. No. 01627 that affirmed the Joint Decision of the Regional

Trial Court, Branch 63 of Calabanga, Camarines Sur in Criminal Case Nos. RTC03-782
and RTC03-789, convicting Noel T. Sales of the crimes of parricide and slight physical
injuries is AFFIRMED with MODIFICATIONS that the award of exemplary
damages is increased to P30,000.00. In addition, an interest of 6% is imposed on all
monetary awards from date of finality of this Decision until fully paid.
SO ORDERED.

SECOND DIVISION

[G.R. No. 151978. July 14, 2004]

ARTURO
ROMERA, petitioner,
PHILIPPINES, respondent.

vs.

PEOPLE

OF

THE

DECISION
QUISUMBING, J.:

For review on certiorari is the Decision dated January 11, 2002 of the Court of
Appeals, in CA-G.R. CR. No. 23753, affirming the August 16, 1999 Order of the
Regional Trial Court of Cagayan de Oro City, Branch 24, in Criminal Case No. 981089. The RTC convicted petitioner Arturo Romera of frustrated homicide and
sentenced him to imprisonment ranging from one (1) year, eight (8) months and twenty
(20) days of prision correccional as minimum to six (6) years and one (1) day of prision
mayor as maximum. He was also ordered to pay private offended party P19,361.15 as
actual damages and P10,000 as attorneys fee.
[1]

[2]

The Information against petitioner reads:

On October 4, 1998, at about 7:00 oclock in the evening, at Sitio Puntod, Barangay
Balagnan, Balingasag, Misamis Oriental, within the jurisdiction of the Honorable
Court, the above-named accused, with intent to kill, did, then and there, willfully,
unlawfully, and feloniously attack, assault, and stab one Roy Mangaya-ay with the use
of a bolo, thus, inflicting a mortal wound on the abdomen of the latter; accused
thereby performed all the acts of execution which would have produced the felony of
Homicide which was not produced because of the timely and effective medical
attendance administered on the said victim.
CONTRARY TO and in violation of Article 249, in relation with Article 6 of the
Revised Penal Code.
[3]

When arraigned, petitioner pleaded not guilty and trial thereafter ensued.
The facts, as summarized by the Court of Appeals and borne by the records, are as
follows:
In the afternoon of October 4, 1998, petitioner Arturo Romera was with the victim,
Roy Mangaya-ay, and five other men namely, Eligario Beboy Acenas, Dennis
Bobong Mangaya-ay, Ric Mangaya-ay, Bebing Zulueta and Franklin Generol. They
were all headed for Biasong to play volleyball. When they reached Biasong, it was

raining, so they decided to while away time at the house of Ciriaca Capil. Franklin
Generol hung a string made of cigarette foil on Bebing Zuluetas pants and said,
Theres a monkey among us. Everybody laughed except Roy Mangaya-ay, who got
angry and chided Franklin Generol to stop lest he make enemies. Bebing Zulueta also
got angry and pointed a finger at Franklin Generol and said, Even if you are stronger
and older, if you will be hit by my fist, you will crawl. Petitioner then stood up and
warned everyone, You all watch out in Balaguan. He pulled Franklin Generol to join
him and said, Lets go, there are many boastful people here. Thereafter, petitioner and
Franklin left the group.
At six oclock in the evening, Roy and his companions arrived in Balaguan. On their
way home, they passed by the house of one Antonio Mangaya-ay. In said house, which
is about one kilometer away from petitioners own, they saw petitioner already carrying
a bolo waiting for them.
Suddenly, raising the bolo with his right hand, petitioner uttered, Here are the brave
ones. Roy and his companions ran away but Roy slipped on the muddy
ground. Petitioner approached Roy and said, Come here, brave one. He held Roy up
by the collar and stabbed him in the stomach. Roy fell unconscious. When he woke up,
he found himself at the provincial hospital where he underwent surgery and stayed for
more than three weeks.
After the stabbing incident, petitioner voluntarily surrendered to a certain Tibo
Ramoso of the Citizens Armed Force Geographical Unit (CAFGU). Ramoso
accompanied petitioner to the Balingasay police station.
For his part, petitioner testified on what happened as follows:
Petitioner and his family were having dinner in their house at around seven
oclock in the evening. Thereafter, they went to bed. While lying in bed, they
heard Roy call petitioner and his wife, asking if they had beer and a fighter for sale. He
did not answer Roy because he knew that Roy was already drunk. Roy asked for
petitioner but when the latters wife told him that petitioner was already asleep, he told
her to wake her husband up. Petitioner went down the house and asked who was at
the door. Just as he opened the door for Roy,Roy thrust his bolo at him. He
successfully parried the bolo and asked Roy what it was all about. Roy answered he
would kill petitioner. Petitioner tried to prevent Roy from entering, so he pushed the
door shut. As Roy was hacking at the wall, petitioners wife held the door to allow
petitioner to exit in another door to face Roy. He hurled a stone at Roy, who dodged
it. Roy rushed to him and hacked him, but he parried the blow. Petitioner grappled for
the bolo and stabbed Roy in the stomach. Wounded, Roy begged petitioner for
forgiveness. According to petitioner, he ceased harming Roy for fear he might kill him.
The trial court discounted petitioners story of self-defense. It found that when
petitioner got hold of the bolo, there was no more danger to his life. Petitioner was
convicted of frustrated homicide. The dispositive part of its decision reads:

WHEREFORE, premises considered, judgment is hereby rendered, finding accused

ARTURO ROMERA guilty beyond reasonable doubt as principal of the offense

charged. Consequently, taking into consideration the mitigating circumstance of

voluntary surrender and the provisions of the [I]ndeterminate Sentence Law, he is
hereby sentenced to a penalty ranging from One (1) year Eight (8) months and Twenty
(20) days of Prision Correccional as minimum to Six (6) years and one (1) day of
Prision Mayor as maximum and to pay the private offended party as actual
damages, P19,361.15 and another sum ofP10,000.00 as attorneys fee without,
however, subsidiary imprisonment in case of insolvency.
SO ORDERED.

[4]

Petitioner appealed to the Court of Appeals assigning to the trial court the following
assignments of error:
1. FAILURE TO APPRECIATE THE THEORY OF SELF DEFENSE.
2. IN THE ALTERNATIVE, FAILURE TO APPRECIATE SPECIAL PRIVILEGED
MITIGATING CIRCUMSTANCE OF INCOMPLETE SELF DEFENSE, ARTICLE 69,
REVISED PENAL CODE WHICH LOWER THE PENALTY BY TWO DEGREES.
3. FURTHER ALTERNATIVE, FAILURE TO APPLY ARTICLE 62 (5) REVISED PENAL
CODE, WHICH LOWER THE PENALTY BY ONE DEGREE LOWER WITH THE
PRESENCE OF TWO OR MORE MITIGATING CIRCUMSTANCES.[5]

The Court of Appeals affirmed the trial courts judgment. It pointed out that
assuming arguendo that it was the victim who was the aggressor at the start, the
unlawful aggression ceased to exist when petitioner took possession of the bolo from
the victim. Absent unlawful aggression, the justifying circumstance of self-defense
becomes unavailing.
The appellate court also ruled that Article 69 of the Revised Penal Code finds no
application in this case. It explained that there can be no self-defense, complete or
incomplete, unless the victim has committed unlawful aggression against the person
defending himself. It held, however, that petitioner is entitled to the mitigating
circumstance of voluntary surrender as it was established during trial that after the
incident he surrendered himself to the CAFGU and later on to the police authorities.
[6]

Undeterred, petitioner filed the instant petition for review on the sole ground that
both the RTC and the Court of Appeals erroneously failed to apply Article 64 (5) of the
Revised Penal Code, which lowers the imposable penalty by one degree when two or
more mitigating circumstances are present.
Petitioner contends that the victim provoked him to a fit of anger when the latter
woke him up and thrust a bolo at him without warning as petitioner opened the
door. Moreover, by hacking and destroying the bamboo wall of his house, and
endangering the lives of his children, the victim also obfuscated his thinking and
reasoning processes, says the petitioner.
For public respondent, the Office of the Solicitor General (OSG) counters that the
mitigating circumstances of provocation and passion or obfuscation are unavailing to
petitioner since it was he who initiated the attack. The OSG insists that it was not the

victim who went to petitioners house, but petitioner who went to where the victim was
resting.
We note that while both the RTC and the Court of Appeals did not categorically
state who started the attack, it can be reasonably gleaned from their decisions that it
was the victim who initiated the aggressive encounter. This finding of fact is amply
supported by the evidence on record.
Are the mitigating circumstances of provocation and passion or obfuscation present
in this case?
Thrusting his bolo at petitioner, threatening to kill him, and hacking the bamboo
walls of his house are, in our view, sufficient provocation to enrage any man, or stir his
rage and obfuscate his thinking, more so when the lives of his wife and children are in
danger. Petitioner stabbed the victim as a result of those provocations, and while
petitioner was still in a fit of rage. In our view, there was sufficient provocation and the
circumstance of passion or obfuscation attended the commission of the offense.
But, we must stress that provocation and passion or obfuscation are not two
separate mitigating circumstances. Well-settled is the rule that if these two
circumstances are based on the same facts, they should be treated together as one
mitigating circumstance. From the facts established in this case, it is clear that both
circumstances arose from the same set of facts aforementioned. Hence, they should
not be treated as two separate mitigating circumstances.
[7]

Nonetheless, we hold that since the mitigating circumstance of voluntary surrender

is also present, Article 64 (5) of the Revised Penal Code should be applied, to wit:

ART. 64. Rules for the application of penalties which contain three periods.
...
5. When there are two or more mitigating circumstances and no aggravating
circumstances are present, the court shall impose the penalty next lower to that
prescribed by law, in the period that it may deem applicable, according to the number
and nature of such circumstances.
...
The penalty for frustrated homicide, pursuant to Article 50 of the Revised Penal
Code, is the penalty next lower in degree than that prescribed by law for consummated
homicide. The penalty for consummated homicide is reclusion temporal, hence the
penalty next lower in degree is prision mayor. There being two mitigating
circumstances and no aggravating circumstance, pursuant to Article 64 (5) of the
Revised Penal Code, the next lower penalty, prision correccional, is the next statutory
penalty. But following the Indeterminate Sentence Law herein applicable, the minimum
term of the penalty that should be imposed on petitioner for frustrated homicide should
be within the range of arresto mayor in any of its periods or from one (1) month and one
[8]

(1) day to six (6) months, while the maximum term should be within the range of prision
correccional in its medium period or two (2) years, four (4) months and one (1) day to
four (4) years and two (2) months.
WHEREFORE, the Decision dated January 11, 2002 of the Court of Appeals
affirming the Order of the Regional Trial Court of Cagayan de Oro City, Branch 24, is
MODIFIED as far as the penalty imposed is concerned. Petitioner ARTURO ROMERA
is hereby sentenced to suffer the indeterminate penalty of six (6) months of arresto
mayor, as minimum, to four (4) years and two (2) months of prision correccional, as
maximum. He is also ORDERED to pay the private offended party P19,361.15 as
actual damages, and P10,000.00 as attorneys fees. Costs de oficio.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 138984

June 4, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
DENNIS TORPIO y ESTRERA, appellant.
DECISION
CALLEJO, SR., J.:
This is an appeal from the Decision1 of the Regional Trial Court of Ormoc City, Branch 35, in Criminal
Case No. 5217-0, finding appellant Dennis Torpio y Estrera guilty beyond reasonable doubt of
murder. The trial court sentenced him to suffer reclusion perpetua and ordered him to pay the
victims heirs the total amount of P200,000 as civil indemnity, actual damages and attorneys fees.
The appellant and his father Manuel Torpio were charged with murder for the killing of Anthony
Rapas in an Amended Information that reads:
That on or about the 11th day of October 1997, at around 12:00 oclock midnight at Zone 3,
Brgy. Camp Downes, Ormoc City, and within the jurisdiction of this Honorable Court, the
above-named accused: DENNIS TORPIO y Estrera and MANUEL TORPIO, conspiring
together, confederating with and mutually helping and aiding one another, with treachery,
evident premeditation and intent to kill, did then and there wilfully, unlawfully and feloniously
stab, hit and wound the victim herein ANTHONY RAPAS, without giving the latter sufficient
time to defend himself, thereby inflicting upon said Anthony Rapas mortal wounds which
caused his instantaneous death. Autopsy report is hereto attached.
In violation of Article 248, RPC, as amended by RA 7659.
Ormoc City, November 4, 1987.2
At their arraignment, the two accused, assisted by counsel, pleaded not guilty to the charge. Trial
ensued.
The Case for the Prosecution
As culled by the trial court from the evidence on record, the case for the prosecution is as follows:
As found by the Court, it was October 11, 1997 in Zone 3, Barangay Camp Downes, Ormoc
City. A family of seven, Manuel Torpio and wife included, together with an old woman visitor
named Fausta Mariaca, were taking their supper. Anthony Rapas knocked and asked for
Dennis Torpio who, after eating, went and left home with Anthony upon the latters invitation
for a drinking spree. They have (sic) some round of drinks at a nearby store together with
another companion. Not contented, they left and proceeded to the seashore where in a
cottage there were people also drinking. Joining the group, Anthony and Dennis again drank.

Later, the two and their companion transferred to another cottage and there they again drank
now with gin liquor except Dennis who did not anymore drink. For one reason or another,
because Dennis did not drink, Anthony got angry and he then bathed Dennis with gin, and
boxed or mauled him and tried to stab him with a batangas knife but failed to hit Dennis as
the latter was crawling under the table. He got up and ran towards home. His family was
awaken[ed], his mother shouted as Dennis was taking a knife and appearing (sic) bloodied.
Manuel Torpio woke up and tried to take the knife from Dennis but failed and, in the process,
wounded or cut himself in his left hand. Dennis left with the knife, passed by another route
towards the seashore and upon reaching the cottage where Anthony and their companion
Porboy Perez were, looked for Anthony. Anthony upon seeing Dennis sensed danger and he
fled by taking the seashore. But Dennis, being accustomed to the place and having known
the terrain despite the dark (sic) knew, upon being suggested by somebody whom Dennis
claimed to be Rey Mellang, that there is only one exit Anthony could make and, thus, he
went the other way through the nipa plantation and he was able to meet and block Anthony.
Upon seeing the shining knife of Dennis, Anthony tried to evade by turning to his left and
Dennis thus hit the back portion of Anthony. Anthony ran farther but he was caught in a
fishing net across the small creek and he fell on his back. It is at this juncture (sic) Dennis
mounted on (sic) Anthony and continued stabbing the latter. He left the place but did not
proceed to (sic) home, instead, he went to the grassy meadow near the camp and there
slept until morning. He then went to a certain police officer to whom he voluntarily
surrendered and together they went to the police headquarters. 3
The case for the accused is, likewise, summarized by the trial court in its decision based on the
evidence, as follows:
[O]n October 11, 1997 at about 7:00 oclock in the evening, while he and his family,
Manuel, his father and mother and an old woman visitor named Fausta Mariaca included,
were having dinner, Anthony Rapas knocked at their door. Anthony invited Dennis for a
drinking spree. Both left after dinner, went to the store of a certain Codog and there started
drinking. The store was about 70 meters away from Dennis house, in Barangay Camp
Downes, Ormoc City. They consumed a half gallon of tuba, drinking with a companion
named Porboy Perez. Two small bottles of Red Horse beer were added, after which the
three proceeded to the seashore, in a cottage of a beach resort there named Shoreline.
Arriving there, there were some people drinking also and they offered them drinks and the
two obliged. Afterwards, they went to a cottage and later Porboy arrived bringing with him a
liquor gin. Dennis did not drink the gin, only Anthony and Porboy did. [T]hen after drinking
the gin, Anthony tried to let Dennis drink the gin and as the latter still refused, Anthony
allegedly bathed Dennis with gin and mauled him several times. Dennis crawled beneath the
table and Anthony tried to stab him with a 22 fan knife but did not hit him. Dennis got up and
ran towards their home. Upon reaching home, he got a knife and as his mother was alarmed
and shouted, a commotion ensued. Manuel, his father, awoke and tried to scold Dennis and
confiscate from him the knife but he failed, resulting to Manuels incurring a wound on his
hand (see TSN of October 8, 1998, p. 7 et seq.). He went back to the cottage by another
route and upon arrival Porboy and Anthony were still there. Upon seeing Dennis, Anthony
allegedly avoided Dennis and ran by passing the shore towards the creek. Rey Mellang went
out of his house at this time and said "meet him Den," alluding to Anthony and to Dennis,
respectively (TSN of October 8, 1998, p. 31 et seq.). Dennis did meet him, virtually blocked
him and stabbed him. When he was hit, Anthony ran but then he got entangled with a fishing
net beside the creek and Anthony fell on his back, and Dennis mounted on (sic) him and
continued stabbing him. After stabbing (sic), Dennis left and went to the grassy meadow at
Camp Downes and slept there. At about 7:00 in the morning, he went to a known police
officer named Boy Estrera in San Pedro Street, Ormoc City and to whom he voluntarily
surrendered. He was later turned over to the police headquarters (TSN, supra, pp. 31-38). 4

The trial court rendered judgment acquitting accused Manuel Torpio but convicting the appellant of
murder qualified by treachery or evident premeditation and appreciating in his favor the following
mitigating circumstances: (a) sufficient provocation on the part of the offended party (the deceased
Anthony) preceded the act; (b) the accused acted to vindicate immediately a grave offense
committed by the victim; and, (c) voluntary surrender. The decretal portion of the decision reads:
Wherefore, from all of the foregoing, the Court finds the accused Dennis Torpio guilty beyond
reasonable doubt of the crime of murder and hereby sentences him after appreciating the
existence of mitigating circumstances, to the imprisonment of forty (40) years reclusion
perpetua, and to pay the offended partyP50,000.00 as indemnity, P100,000.00 as actual
damages, P50,000.00 for and as attorneys fees. If said accused is detained, [the] period of
imprisonment shall be credited to him in full if he abides in writing by the term for convicted
prisoners, otherwise, for only four-fifths (4/5) thereof.
On the accused Manuel Torpio, the Court finds him not guilty of the crime charged and
hereby acquits him therefrom. If he is detained, he shall be discharged immediately from
prison unless he is held for other lawful cause.
SO ORDERED.5
Dennis Torpio, now the appellant, appealed the judgment of the trial court alleging as sole error that

THE TRIAL COURT GRAVELY ERRED IN FINDING THAT TREACHERY AND EVIDENT
PREMEDITATION ATTENDED THE COMMISSION OF THE CRIME, THUS, QUALIFYING
THE SAME TO MURDER.6
According to the appellant, treachery was not attendant when he killed the victim because he did not
consciously adopt a mode of attack to ensure the accomplishment of his criminal purpose without
any risk to himself arising from the defense that the victim might offer. He posits that his act of
stabbing Anthony was preceded by a quarrel between them; hence, the victim had been forewarned
of the danger to his life and limb.
The appellant asserts that evident premeditation was not, likewise, attendant because the
prosecution failed to prove that he had planned and prepared any plot to kill the victim. Further, no
direct and positive evidence had been shown that sufficient time had elapsed between his
determination to commit the crime and its execution to enable him to reflect upon the consequences
of his act. He argues that he is guilty only of homicide as defined in Article 249 of the Revised Penal
Code, as amended.
The appeal is meritorious.
Significantly, apart from its statement that "[f]rom the evidence adduced, the Court is of the
considered opinion that the killing of Anthony by Dennis Torpio was attended with treachery and
evident premeditation as to qualify it to murder,"7 the trial court did not state the factual basis for its
conclusion.
It is axiomatic that qualifying and aggravating circumstances, like treachery and evident
premeditation, must be proven with equal certainty as the commission of the crime charged. 8 Such
circumstances cannot be presumed; nor can they be based on mere surmises or speculations. 9 In
case of doubt, the same should be resolved in favor of the accused. 10

There is treachery when the offender employs means, methods or forms in the execution of the
crime which tends directly and specially to insure its execution without risk to himself arising from the
defense which the offended party might make.11 There must be evidence showing that the mode of
attack was consciously or deliberately adopted by the culprit to make it impossible or difficult for the
person attacked to defend himself or retaliate.12Further, the essence of treachery is the swift and
unexpected attack without the slightest provocation by the victim. 13
In this case, the record is barren of evidence showing any method or means employed by the
appellant in order to ensure his safety from any retaliation that could be put up by the victim. The
appellant acted to avenge Anthonys felonious acts of mauling and stabbing him. Although the
appellant bled from his stab wound, he ran home, armed himself with a knife and confronted
Anthony intentionally. When the latter fled, the appellant ran after him and managed to stab and kill
the victim.
To warrant a finding of evident premeditation, the prosecution must establish the confluence of the
following requisites:
... (a) the time when the offender [was] determined to commit the crime; (b) an act manifestly
indicating that the offender clung to his determination; and (c) a sufficient interval of time
between the determination and the execution of the crime to allow him to reflect upon the
consequences of his act.14
The qualifying circumstance of evident premeditation requires that the execution of the criminal act
by the accused be preceded by cool thought and reflection upon a resolution to carry out the criminal
intent during the space of time sufficient to arrive at a calm judgment. 15 Evident premeditation needs
proof of the time when the intent to commit the crime is engendered in the mind of the accused, the
motive which gives rise to it, and the means which are beforehand selected to carry out that intent.
All such facts and antecedents which make notorious the pre-existing design to accomplish the
criminal purpose must be proven to the satisfaction of the court.16
Nothing in the records supports the trial courts conclusion that evident premeditation attended the
commission of the crime in this case. It was not shown by the prosecution that, in killing Anthony, the
appellant had definitely resolved to commit the offense and had reflected on the means to bring
about the execution following an appreciable length of time.
According to Manuel, the father of the appellant, the latter told him, "I have to kill somebody, Tay,
because I was boxed." To the Courts mind, this utterance is not sufficient to show that the crime was
a product of serious and determined reflection. The interval between the time when the appellant
made this statement and when he actually stabbed Anthony was not sufficient or considerable
enough as to allow him to reflect upon the consequences of his act. There was no sufficient
interregnum from the time the appellant was stabbed by the victim, when the appellant fled to their
house and his arming himself with a knife, and when he stabbed the victim. In a case of fairly recent
vintage, we ruled that there is no evident premeditation when the fracas was the result, not of a
deliberate plan but of rising tempers, or when the attack was made in the heat of anger.17
Without any proof of any circumstance that would qualify it, the killing could not amount to murder.
The appellant should, thus, be held liable only for homicide for the death of Anthony.
The Court agrees with the trial court that mitigating circumstances should be considered in the
appellants favor. However, only two out of the three mitigating circumstances 18 considered by the
trial court can be credited to the appellant. The trial court properly appreciated the mitigating

circumstance of voluntary surrender as it had been established that the appellant, after he killed
Anthony, lost no time in submitting himself to the authorities by going to Boy Estrera, a police officer.
The mitigating circumstance of having acted in the immediate vindication of a grave offense was,
likewise, properly appreciated. The appellant was humiliated, mauled and almost stabbed by the
deceased. Although the unlawful aggression had ceased when the appellant stabbed Anthony, it was
nonetheless a grave offense for which the appellant may be given the benefit of a mitigating
circumstance.19 But the mitigating circumstance of sufficient provocation cannot be considered apart
from the circumstance of vindication of a grave offense. These two circumstances arose from one
and the same incident, i.e., the attack on the appellant by Anthony, so that they should be
considered as only one mitigating circumstance.20
Under Article 249 of the Revised Penal Code, homicide is punishable by reclusion temporal.
However, considering that there are two mitigating circumstances and no aggravating circumstance
attendant to the crime, the imposable penalty, following Article 64(5) 21 of the Revised Penal Code, is
prision mayor, the penalty next lower to that prescribed by law, in the period that the court may deem
applicable. Applying the Indeterminate Sentence Law, the maximum penalty to be imposed shall be
taken from the medium period of prision mayor, while the minimum shall be taken from within the
range of the penalty next lower in degree, which is prision correccional. Hence, the imposable
penalty on the appellant is imprisonment from six (6) years of prision correccional, as minimum, to
eight (8) years and one (1) day of prision mayor, as maximum.
It is, likewise, necessary to modify the damages awarded by the trial court. The award of P100,000
as actual damages representing funeral and wake expenses should be deleted as there were no
receipts or any other tangible documents presented to support the said award. 22 However, the award
of attorneys fees in the amount ofP50,000 is proper considering that the records showed that the
heirs of the victim engaged the services of a private prosecutor. The recovery of attorneys fees in
the concept of actual or compensatory damages is allowed under the circumstances provided in
Article 2208 of the Civil Code, one of which is when the court deems it just and equitable that
attorneys fees and expenses of litigation should be recovered. 23 The award of P50,000 as civil
indemnity24 to the heirs of Anthony, as well as P25,000 as temperate damages,25 is, likewise,
warranted pursuant to prevailing jurisprudence.
WHEREFORE, the Decision dated March 18, 1999 of the Regional Trial Court of Ormoc City, Branch
35, in Criminal Case No. 5217-0 is AFFIRMED WITH MODIFICATIONS. The appellant Dennis Torpio
y Estrera is found guilty beyond reasonable doubt of Homicide under Article 249 of the Revised
Penal Code and is sentenced to suffer an indeterminate penalty from six (6) years of prision
correccional, as minimum, to eight (8) years and one (1) day of prision mayor in its medium period,
as maximum. He is further ordered to pay the heirs of the said victim, the amounts of Fifty Thousand
Pesos (P50,000) as civil indemnity, Twenty-Five Thousand Pesos (P25,000) as temperate damages
and Fifty Thousand Pesos (P50,000) as attorneys fees.
SO ORDERED.
Puno, Quisumbing, Austria-Martinez, and Tinga, JJ., concur.