SUPREME COURTManila

EN BANC

DECISION

January 31, 2001

G.R. No. 103613, ,vs.,

, J.:

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

According to the prosecution witnesses, particularly, Mary Ann Borromeo, Rosalia Cruz and Manuel Miranda, the accused pointed his gun at Generoso Miranda and when Manuel Miranda tried to intervene, the accused pointed his gun at Manuel Miranda, and after that the accused pointed again the gun to Generoso Miranda, the accused shot Generoso Miranda at a distance of about a meter but because the arm of the accused was extended, the muzzle of the gun reached to about more or less one foot away from the body of Generoso Miranda. The shot hit the stomach of Generoso Miranda causing the latter to fall and while still conscious, Generoso Miranda told Manuel Miranda, his uncle, to get the gun. Manuel Miranda grappled for the possession of the gun and during their grappling, Rosalia Cruz intervened and took hold of the gun and after Rosalia Cruz has taken hold of the gun, a man wearing a red T-shirt took the gun from her. The man in T-shirt was chased by Manuel Miranda who was able to get the gun where the man in red T-shirt placed it.

On the other hand, the defense, particularly the accused and his witness by the name of Nelson Pante claimed that after the gun was taken by the accused from inside his car, the Mirandas started to grapple for possession of the gun and during the grappling, and while the two Mirandas were trying to wrest away the gun from the accused, they fell down at the back of the car of the accused. According to the accused, he lost the possession of the gun after falling at the back of his car and as soon as they hit the ground, the gun fell, and it exploded hitting Generoso Miranda.1

After the gun went off, Tangan ran away. Meanwhile, Generoso lay on the ground bloodied. His uncle, Manuel, looked for the gun and ran after Tangan, joining the mob that had already pursued him. Tangan found a policeman who allowed him to enter his patrol car. Manuel arrived and told the policeman that Tangan had just shot his nephew. Then he went back to where Generoso lay and there found two ladies, later identified as Mary Ann

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Borromeo and Rosalina Cruz, helping his nephew board a taxi. Manuel suggested that Generoso be brought to the hospital in his car. He was rushed to the Philippine General Hospital but he expired on the way.

Tangan was charged with the crime of murder with the use of an unlicensed firearm.2 After a reinvestigation, however, the information was amended to homicide with the use of a licensed firearm,3 and he was separately charged with illegal possession of unlicensed firearm.4 On arraignment, Tangan entered a plea of not guilty in the homicide case, but moved to quash the information for illegal possession of unlicensed firearm on various grounds. The motion to quash was denied, whereupon he filed a petition for certiorari with this Court.5 On November 5, 1987, said petition was dismissed and the joint trial of the two cases was ordered.6

During the trial, the prosecution and the defense stipulated on the following: that the amount of P126,000.00 was incurred for the funeral and burial expenses of the victim;7 that P74,625.00 was incurred for attorneys fees; and that the heirs of Generoso suffered moral damages, the amount of which is left for the courts to determine. After trial, the lower court acquitted Tangan of illegal possession of firearm, but convicted him of homicide. The privileged mitigating circumstance of incomplete self-defense and the ordinary mitigating circumstances of sufficient provocation on the part of the offended party and of passion and obfuscation were appreciated in his favor; consequently, the trial court ordered him to suffer an indeterminate penalty of two (2) months of arresto mayor, as minimum, to two (2) years and four (4) months of prision correccional, as maximum, and to indemnify the heirs of the victim.8 Tangan was released from detention after the promulgation of judgment and was allowed bail in the homicide case.

Private complainants, the heirs of Generoso Miranda, filed a petition for review with this Court, docketed as G.R. No. 102677, challenging the civil aspect of the court a quo‘s decision, but the same was dismissed for being premature. On the other hand, Tangan appealed to the Court of Appeals, which affirmed the judgment of the trial court but increased the award of civil indemnity to P50,000.00.10 His subsequent motion for reconsideration and a motion to cite the Solicitor General in contempt were denied by the Court of Appeals.11

The office of the Solicitor General, on behalf of the prosecution, alleging grave abuse of discretion, filed a petition for certiorari under Rule 65, docketed as G.R. No.103613, naming as respondents the Court of Appeals and Tangan, where it prayed that the appellate court’s judgment be modified by convicting accused-appellant of homicide without appreciating in his favor any mitigating circumstance.12 Subsequently, the Office of the Solicitor General, this time acting for public respondent Court of Appeals, filed a motion for extension to file comment to its own petition for certiorari.13 Discovering its glaring error, the Office of the Solicitor General later withdrew its motion for extension of time.14 Tangan filed a Reply asking that the case be submitted for decision.15

Meanwhile, Tangan filed a separate petition for review under Rule 45, docketed as G.R. No. 105830.16 Since the petition for certiorari filed by the Solicitor General remained unresolved, the two cases were consolidated.17 The Office of the Solicitor General filed a manifestation in G.R. No. 105830, asking that it be ex6used from filing a comment to Tangan’s petition for review, in order to avoid taking contradictory positions.18

In the recent case of People v. Velasco and Galvez,19 we held that the prosecution cannot avail of the remedies of special civil action on certiorari, petition for review on certiorari, or appeal in criminal cases. Previous to that, we categorically ruled that the writ of certiorari cannot be used by the State in a criminal case to correct a lower court’s factual findings or evaluation of the evidence.20

Rule 117, Section 7, of the Revised Rules of Criminal Procedure, is clear:

Former conviction or acquittal; double jeopardy. – When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other fom1al charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit

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the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.

However, the conviction of the accused shall not be a bar to another prosecution for an offense which, necessarily includes the offense charged in the former complaint or information under any of the following instances:

(a) the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge;

(b) the facts constituting the graver charge became known or were discovered only after a pleas was entered in the former complaint or information; or

(c) the plea of guilty to the lesser offense was made without the consent of the fiscal and of the offended party, except as provided in section 1(f) of Rule 116.

In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense.

Based on the foregoing, the Solicitor General’s petition for certiorari under Rule 65, praying that no mitigating circumstance be appreciated in favor of accused-appellant and that the penalty imposed on him be correspondingly increased, constitutes a violation of Tangan’s right against double jeopardy and should be dismissed.

We now come to the petition for review filed by Tangan. It is noteworthy that during the trial, petitioner Tangan did not invoke self-defense but claimed that Generoso was accidentally shot. As such, the burden of proving self-defense,21 which normally would have belonged to Tangan, did not come into play. Although Tangan must prove his defense of accidental firing by clear and convincing evidence,22 the burden of proving the commission of the crime remained in the prosecution.

Both the trial court and the Court of Appeals appreciated in favor of Tangan the privileged mitigating circumstance of incomplete self-defense under Article 13 (1), in relation to Article 11 (1), of the Revised Penal Code, to wit:

ARTICLE 11. Justifying circumstances. – The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:

First. Unlawful aggression.

Second. Reasonable necessity of the means employed to prevent or repel it.

Third. Lack of sufficient provocation on the part of the person defending himself.

xxx xxx xxx

ARTICLE 13. Mitigating Circumstances. – The following are mitigating circumstances:

1. Those mentioned in the preceding Chapter, when all the requisites necessary to justify the act or to exempt from criminal liability in the respective cases are not attendant.

Incomplete self-defense is not considered as a justifying act, but merely a mitigating circumstance; hence, the burden of proving the crime charged in the information is not shifted to the accused.23 In order that it may be successfully appreciated, however, it is necessary that a majority of the requirements of self-defense be present,

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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 court’s assessments of the credibility of witnesses is accorded great weight and respect on appeal and is binding on this Court,28 particularly when it has not been adequately demonstrated that significant facts and circumstances were shown to have been overlooked or disregarded by the court below which, if considered, might affect the outcome hereof.29 The rationale for this has been adequately explained in that,

The trial court has the advantage of observing the witnesses through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply; or the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, and carriage and mien.30

Equally, when a person fabricates a story, he usually adopts a simple account because a complex one might lead to entanglement from which he may find it hard to extricate himself. Along the same line, the experience of the courts and the general observations of humanity teach us that the natural limitations of our inventive faculties are such that if a witness delivers in court a false narrative containing numerous details, he is almost certain to fall into fatal inconsistencies to make statements which can be readily refuted, or to expose in his demeanor the falsity of his message.31 Aside from this, it is not also unusual that the witness may have been coached before he is called to the stand to testify.

Somewhere along the painstaking review of the evidence on record, one version rings the semblance of truth, not necessarily because it is the absolute truth, but simply because it is the best approximation of the truth based on the declarations of witnesses as corroborated by material evidence. Perforce, the other version must be rejected. Truth and falsehood, it has been well said, are not always opposed to each other like black and white, but oftentimes, and by design, are made to resemble each other so as to be hardly distinguishable.32 Thus, after analyzing the conflicting testimonies of the witnesses, the trial court found that:

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

The Court of Appeals agreed -

The finding of the lower court that Generoso Miranda III was shot while the accused and the Mirandas were grappling for the possession of the gun immediately after the accused had taken his gun from inside his car and before the three allegedly fell to the ground behind the car of the accused is borne out by the record. The court

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also agrees with the court below that it was the accused-appellant who shot and killed Generoso Miranda III. If the accused-appellant did not shoot Generoso III during the scuffle, he would have claimed accidental killing by alleging that his gun exploded during the scuffle instead of falsely testifying that he and the Mirandas fell to the ground behind his car and the gun exploded in the possession of Manuel Miranda. The theory of the prosecution that the shooting took place while the three were grappling for the possession of the gun beside the car of appellant is completely in harmony with the findings and testimony of Dr. Ibarrola regarding the relative position of the three and the precarious nearness of the victim when accused-appellant pulled the trigger of his gun. Dr. Ibarrola explained that the gun was about two (2) inches from the entrance wound and that its position was almost perpendicular when it was fired. It was in fact the closeness of the Mirandas vis-à-vis appellant during the scuffle for the gun that the accused-appellant was compelled to pull the trigger in answer to the instinct of self-preservation.34

No convincing reason appears for the Court to depart from these factual findings, the same being ably supported by the evidence on record. In violent deaths caused by gunshot wounds, the medical report or the autopsy on the cadaver of the victim must as much as possible narrate the observations on the wounds examined. It is material in determining the truthfulness of the events narrated by the witnesses presented. It is not enough that the witness looks credible and assumes that he indeed witnessed the criminal act. His narration must be substantiated by the physical evidence available to the court.

The medical examiner testified that the distance between the muzzle of the gun and the target was about 2 inches but definitely not more than 3 inches. Based on the point of exit and the trajectory transit of the wound, the victim and the alleged assailant were facing each other when the shot was made and the position of the gun was almost perpendicular when fired.35 These findings disprove Tangan’s claim of accidental shooting. A revolver is not prone to accidental firing because of the nature of its mechanism, unless it was already first cocked and pressure was exerted on the trigger. If it were uncocked, then considerable pressure had to be applied on the trigger to fire the revolver.36

Having established that the shooting was not accidental, the next issue to be resolved is whether Tangan acted in incomplete self-defense. The element of unlawful aggression in self-defense must not come from the person defending himself but from the victim.

A mere threatening or intimidating attitude is not sufficient.37 Likewise, the exchange of insulting words and invectives between Tangan and Generoso Miranda, no matter how objectionable, could not be considered as unlawful aggression, except when coupled with physical assault.38 There being no lawful aggression on the part of either antagonists, the claim of incomplete self-defense falls. Tangan undoubtedly had possession of the gun, but the Mirandas tried to wrestle the gun from him. It may be said that the former had no intention of killing the victim but simply to retain possession of his gun. However, the fact that the victim subsequently died as a result of the gunshot wound, though the shooter may not have the intention to kill, does not absolve him from culpability. Having caused the fatal wound, Tangan is responsible for all the consequences of his felonious act. He brought out the gun, wrestled with the Mirandas but anticipating that the gun may be taken from him, he fired and fled.

The third requisite of lack of sufficient provocation on the part of the person defending himself is not supported by evidence. By repeatedly blocking the path of the Mirandas for almost five times, Tangan was in effect the one who provoked the former. The repeated blowing of horns, assuming it was done by Generoso, may be irritating to an impatient driver but it certainly could not be considered as creating so powerful an inducement as to incite provocation for the other party to act violently.

The appreciation of the ordinary mitigating circumstances of sufficient provocation and passion and obfuscation under Article 13, paragraphs 4 and 6,39 have no factual basis. Sufficient provocation as a requisite of incomplete self-defense is different from sufficient provocation as a mitigating circumstance. As an element of self-defense, it pertains to its absence on the part of the person defending himself; while as a mitigating circumstance, it pertains to its presence on the part of the offended party. Besides, only one mitigating circumstance can arise out of one and the same act.40 Assuming for the sake of argument that the blowing of horns, cutting of lanes or overtaking

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can be considered as acts of provocation, the same were not sufficient. The word “sufficient” means adequate to excite a person to commit a wrong and must accordingly be proportionate to its gravity.41 Moreover, Generoso’s act of asking for an explanation from Tangan was not sufficient provocation for him to claim that he was provoked to kill or injure Generoso.42

For the mitigating circumstance of passion and obfuscation to be appreciated, it is required that (1) there be an act, both unlawful and sufficient to produce such a condition of mind; and (2) said act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity.43

In the case at bar, Tangan could not have possibly acted upon an impulse for there was no sudden and unexpected occurrence which wuld have created such condition in his mind to shoot the victim. Assuming that his path was suddenly blocked by Generoso Miranda due to the firecrackers, it can no longer be treated as a startling occurrence, precisely because he had already passed them and was already the one blocking their path. Tangan’s acts were done in the spirit of revenge and lawlessness, for which no mitigating circumstance of passion or obfuscation can arise.

With respect to the penalty, under the laws then existing, homicide was penalized with reclusion temporal,44 but if the homicide was committed with the use of an unlicensed firearm, the penalty shall be death.45 The death penalty, however, cannot be imposed on Tangan because in the meantime, the 1987 Constitution proscribed the imposition of death penalty; and although it was later restored in 1994, the retroactive application of the death penalty is unfavorable to him. Previously the accused may be prosecuted for two crimes: (1) homicide or murder under the Revised Penal Code and (2) illegal possession of firearm in its aggravated form under P.D. 1866.46

P.D. 1866 was amended by R.A. No. 8294,47 which provides that if an unlicensed firearm is used in murder or homicide, such use of unlicensed firearm shall be appreciated as an aggravating circumstance and no longer considered as a separate offense,48 which means that only one offense shall be punished – murder or homicide. However, this law cannot apply retroactively because it will result in the imposition on Tangan of the maximum period of the penalty. Moreover, under Rule 110, Section 8 of the Revised Rules of Criminal Procedure,49 the aggravating circumstance must be alleged in the information. Being favorable, this new rule can be given retroactive effect as they are applicable to pending cases.50 In any case, Tangan was acquitted of the illegal possession case.

Consequently, Tangan should be sentenced to suffer the penalty of reclusion temporal. Pursuant to Article 64 of the Revised Penal Code, if the prescribed penalty is composed of three periods, and there is neither mitigating nor aggravating circumstance, the medium period shall be applied. Applying the Indeterminate Sentence law, the maximum of the indeterminate penalty shall be that which, in view of the attendant circumstances, may be properly imposed, which in this case is reclusion temporal medium with an imprisonment range of from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. The minimum of the indeterminate sentence shall be the next lower degree which is prision mayor with a range of from six (6) years and one (1) day to twelve (12) years.51 Hence, petitioner Tangan is sentenced to an indeterminate penalty of six (6) years and one (1) day of prision mayor, as minimum; to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum.

The death indemnity of P30,000.00 was correctly increased by the appellate court to P50,000.00 in line with jurisprudence.52 Moral damages are awarded in criminal cases involving injuries if supported by evidence on record,53 but the stipulation of the parties in this case substitutes for the necessity of evidence in support thereof. Though not awarded below, the victim’s heirs are entitled to moral damages in the amount of P50,000.00 which is considered reasonable considering the pain and anguish brought by his death.54

WHEREFORE, the petition in G.R. No. 103613 is DISMISSED. The appealed decision subject of G.R. No. 105830 is AFFIRMED with the following MODIFICATIONS:

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(1) Tangan is sentenced to suffer an indeterminate penalty of six (6) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum, with all the accessory penalties.

(2) Tangan is ordered to pay the victim’s heirs P50,000.00 as civil indemnity, P42,000.00 as funeral and burial expenses, P5,000.00 as attorney’s fees, and P50,000.00 as moral damages.

SO ORDERED.

Davide, Jr., Puno, Kapunan, and Pardo, JJ., concur.

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ROGELIO SOPLENTE, G.R. No. 152715

Petitioner,

Present

PUNO, J.,

Chairman,

- versus - AUSTRIA-MARTINEZ,

CALLEJO, SR.,

TINGA, and

CHICO-NAZARIO, JJ.

PEOPLE OF THE PHILIPPINES,

Respondent.

Promulgated

July 29, 2005

D E C I S I O N

A person acting in self-defense is apt to unleash with lightning speed the terrible swift sword. It is perhaps the speed with which the relevant actions transpire that poses some difficulty in the adjudication of many self-defense claims. The events in this case involve several actors and a series of assaults, all occurring within the span of several blinks of the eye. The totality of the picture convinces us that the accused was enmeshed in a web of danger which convulsed him into a reasonable fear for his life. It is under that dark cloud that the accused, as he readily admits, ended the life of Joel Notarte. The loss of life is cause for grief, but the facts dictate that the killing was justified under the circumstances.

Rogelio Soplente (Rogelio) seeks the reversal of the Decision[1] and the Resolution[2] denying his motion for reconsideration thereof, rendered by the Court of Appeals (CA) in CA-G.R. No. 20446. The CA affirmed the Decision[3] of the Regional Trial Court (RTC) of General Santos City, Branch 22 acquitting Rogelio of the crime of frustrated homicide in Criminal Case No. 5093 but convicting him of homicide in Criminal Case No. 5094.

The antecedent operative facts follow.

Originally, Rogelio and his first cousin Nicanor Soplente (Nicanor) were jointly charged with frustrated homicide for the wounding of Eduardo Leyson VI (Leyson) and with homicide for the killing of Joel Notarte (Notarte) under informations with the following accusatory portions:

I. Criminal Case No. 5093

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That on or about 12:30 o’clock in the early morning of May 4, 1988 at Purok Santa Cruz, San Pedro Street, Lagao, General Santos City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill and with the use of a knife, did then and there willfully, unlawfully, and feloniously stab one Eduardo Leyson VI hitting him on his left arm (through and through), which wound ordinarily would cause the death of said Eduardo Leyson VI, thus performing all the acts of execution which should have produced the crime of homicide as a consequence, but nevertheless did not produce it by reason of causes independent of his will and the timely and able medical assistance rendered to said Eduardo Leyson VI which prevented his death.[4] II. Criminal Case No. 5094 That on or about 12:30 o’clock in the early morning of May 4, 1988 at Purok Santa Cruz, San Pedro St., Lagao, General Santos City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill and armed with a deadly weapon, did then and there willfully, unlawfully and feloniously stab Joel Notarte, thereby inflicting upon the latter stab wound which caused his instantaneous death.[5]

The prosecution’s evidence, culled mainly from the oral testimonies of Gracidio Gulle (Gulle), Renato Besinga (Besinga) and Leyson, revealed the following:

A group consisting of Leyson, Notarte, Besinga, Gulle, Ewing Bayani, Ralowe Velayo, Ebol Bayani, Reynaldo Jamerlan and Bond de Vera were drinking and conversing in the early evening of 3 May 1988 which was the occasion of the fiesta at Purok Sta. Cruz, San Pedro St., Lagao, General Santos City. They were at the store of a certain Diola which was situated near the stage where the amateur singing contest was to be held.[6]

During the singing contest, which started at around ten o’clock in the evening (10:00 p.m.), Bebong Cambarijan (Cambarijan) approached Gulle to tell him that Rogelio and Nicanor Soplente (the two accused) had asked him and Estoy Provido (Provido), who was tough among the group. Without telling anybody except Leyson and Notarte about the incident, Gulle went to the house of policeman Rudy Penequito (Penequito) to get help. Penequito instructed Gulle to refrain from accosting the Soplente cousins to avoid disturbing the singing contest. Penequito also approached Rogelio and Nicanor and admonished them not to make trouble, but despite the intervention, Gulle, Notarte and Leyson watched the Soplente cousins still. Gulle, along with Bebing Go, then accosted the Soplente cousins and inquired where they came from. Nicanor politely answered that they were staying with Susing Cafi (Susing). Since Gulle and the others knew that Susing was a local resident, they were satisfied with the answer and they left the Soplente cousins alone. Gulle however noticed that Nicanor smelled of liquor.[7]

The group of Leyson and the Soplente cousins continued to watch the singing contest being held nearby. Some of Leyson’s companions were barangay tanods and volunteers, thus, they were equipped with canes while Leyson was armed with a handgun.[8]

While awaiting the announcement of winners at about twelve thirty in the early morning (12:30 a.m.) of 4 May 1988, the group of Leyson repaired to a place away from the stage to relieve themselves. Some of the spectators began dispersing at this point. Notarte and Besinga were along one side of San Pedro St. while the others, including Gulle, were on the left side. Suddenly, a commotion ensued as the Soplente cousins passed by. Gulle, Besinga and Leyson offered the following accounts of what had transpired then.

Gulle testified that he saw Notarte fall to the ground, which was followed by a gun burst which he presumed came from Leyson’s handgun. He saw Leyson, by then clearly wounded, chasing Rogelio. However, Gulle did not see the actual stabbing of either Notarte or Leyson.[9]

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Besinga testified that he saw the commotion at a distance of about thirty (30) meters while he was walking towards the group of Leyson at the right side of San Pedro St. When he was barely three (3) meters away from them, he saw Rogelio and Leyson approaching each other saying something unintelligible. Notarte was beside Leyson at this juncture. Rogelio then stabbed Leyson, who drew a gun and fired in the air. Besinga did not notice the others but his companions were nearby mingled with the people going home.[10]

Leyson, who survived the attack and sustained a wound on his left arm, claimed to have been taken by surprise when the Soplente cousins suddenly attacked Notarte and himself. The assault was so sudden and fast that while he was standing with arms akimbo, he was stabbed by Rogelio. Leyson reacted by drawing his gun and firing a shot in the air to prevent further attack. Notarte who was a little to the rear but very near his right side was attacked by Nicanor at the same instant that Rogelio had attacked his companion, Leyson. The assaults were done simultaneously with lightning speed, with Rogelio concentrating on Leyson and Nicanor on Notarte. Rogelio fled after the firing of the gun. (But Leyson did not testify whether Nicanor had also taken flight.) Leyson tried to go after Rogelio used but since he was bleeding profusely, a policeman assisted him in going to the Canda clinic for medical treatment. He learned the next day that Notarte died as a result of the stabbing.[11]

On the other hand, Rogelio admitted having stabbed both Leyson and Notarte, but claimed that he did so in self-defense.[12] The testimony of Rogelio and Nicanor themselves were presented as well as that of their cousin Elena Cafi (Bukay) and store owner, Joy Malig-on (Malig-on). Based on the findings of the lower court, the defense’s version of the incident is condensed as follows:

The cousins, Rogelio and Nicanor, watched the amateur singing contest being held near the Sta. Cruz Chapel at San Pedro St. which started at about nine thirty in the evening (9:30 p.m.). They were standing only a few meters away from the group of people who were drinking in the store of Diola. While engrossed with the singing contest, they were approached by two (2) persons from the group of Leyson who then tapped Nicanor’s shoulder. They insisted on bringing Nicanor along with them so Nicanor called for Rogelio’s help. The latter immediately intervened to stop the two from harassing Nicanor.[13]

A few minutes after the incident, Nicanor went to the adjacent store of Malig-on and “ordered orange.”[14] When Malig-on asked him what happened, Nicanor explained that the strangers were provoking him by deliberately stepping on his feet. He claimed however that the incident was nothing to him.[15]

At about past eleven o’clock in the evening (11:00 p.m.), before the conclusion of the amateur singing contest, Rogelio and Nicanor decided to go home. They related how Nicanor was harassed near the stage of the amateur show to their cousin, Susing and his wife, Bukay.[16]

At past midnight, Bukay asked Rogelio and Nicanor to accompany her in looking for her children who had watched the singing contest. They obliged but before they had gone about three hundred (300) meters, Nicanor separated from them to buy cigarettes from a nearby store. Rogelio and Bukay went onwards but at a distance of about fifty (50) meters from the stage, Rogelio stopped and Bukay proceeded alone to look for her children. A few minutes later, Bukay appeared with the children and they all headed home.[17]

While on the way home, Rogelio suddenly found himself surrounded by around ten (10) persons led by Leyson. He shouted at Nicanor to run and the latter immediately scampered away. Leyson drew his gun and fired at Rogelio but the latter was able to parry it by tapping the base of Leyson’s hand holding the gun. Forthwith, Rogelio stabbed Leyson once. As Notarte had started mauling Rogelio after Leyson had fired his gun, Rogelio also stabbed Notarte. He stabbed both Leyson and Notarte to protect himself from being killed by the group who were armed with canes and a lead pipe aside from Leyson’s gun. Rogelio managed to escape after that and he sought refuge in the house of Susing.[18]

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Before dawn, a policeman arrived at Susing’s house and Rogelio voluntarily gave himself up. The knife he used was also turned over to the police. He was brought to the police substation at Lagao. A few hours later, Nicanor was also picked up by the police.[19]

In its assailed ruling, the RTC held that Nicanor had no participation in the fatal incident which occurred in the early morning of 4 May 1988.[20] It also found that there was no evidence of conspiracy.[21] Accordingly, it absolved Nicanor of the crimes charged in both Criminal Case Nos. 5093 and 5094. [22] On the other hand, Rogelio’s claim of self-defense was deemed legally justified with respect to Leyson’s injury but not with respect to Notarte’s death. Thus, while Rogelio was acquitted in Criminal Case No. 5093, he was found guilty of the crime of homicide in Criminal Case No. 5094.[23]

Notwithstanding the above findings, the lower court ordered both Nicanor and Rogelio to jointly and severally indemnify the family of Notarte for the latter’s death and to pay the hospitalization expenses of Leyson in its decision dated 7 May 1996. The dispositive portion of the decision reads:

ACCORDINGLY, in the absence of proof of conspiracy, Nicanor Soplente is acquitted in both criminal cases nos. 5093 and 5094. Considering the admission and the evidence adduced, Rogelio Soplente is acquitted on reasonable doubt in Criminal Case No. 5093 for frustrated homicide but he is found guilty beyond reasonable doubt in Criminal Case No. 5094 for homicide with the attendance of the mitigating circumstances of provocation or threat and voluntary surrender and he is hereby sentenced to 6 years of PRISION CORRECCIONAL to 8 years and 1 day of PRISION MAYOR MEDIUM, to jointly and severally indemnify with accused Nicanor Soplente the heirs of the deceased Joel Notarte the sum of P50,000.00, actual expenses of P12,500.00; they are also required to pay IN SOLIDUM the hospitalization expenses of Eduardo Leyson VI plus costs.

SO ORDERED.[24]

Initially, both Nicanor and Rogelio filed their respective notices of appeal from the above decision. Later however, Nicanor withdrew his notice of appeal and opted to merely move for a reconsideration of the portion of the decision making him solidarily liable for monetary awards in favor of the victims.

In an Order[25] dated 26 June 1996, the lower court granted Nicanor’s motion thereby totally absolving him from both criminal and civil liability. Thus, only Rogelio’s appeal to the CA remained. Concluding that there was no unlawful aggression on the part of Notarte which would justify Rogelio’s claim of self-defense, the CA affirmed the ruling of the RTC. Hence, Rogelio’s recourse to this Court.

In his petition, Rogelio claims that the CA erred when it held that on the basis of unlawful aggression alone, Rogelio’s evidence fell short of being clear and convincing.[26] Rogelio vehemently argues that a holistic appreciation of the evidence as presented by both the prosecution and the defense will show that self-defense lies in his favor.[27]

Doctrinally, findings of fact of trial courts are accorded the highest respect and weight. It is the peculiar province of the trial court to determine the credibility of witnesses and related questions of fact because of its superior advantage in observing the conduct and demeanor of witnesses while testifying. Thus, it has become a well-settled rule that where the issue touches on the credibility of witnesses or factual findings, the appellate court will generally not disturb the findings of the trial court, unless some facts or circumstances that may affect the result of the case have been overlooked.[28]

In this case, a careful perusal of the records shows that the lower court overlooked material facts that would result in Rogelio’s exculpation from liability. The lower courts failed to appreciate the fact that Rogelio’s testimony relative to his claim of self-defense stands uncontradicted. His testimony coupled with the circumstances surrounding this case sufficiently proves the claim of self-defense.

11

The three main witnesses for the prosecution, Gulle, Besinga and Leyson categorically stated that it was Nicanor, not Rogelio who stabbed Notarte. Gulle testified thus:

Q Mr. Gulle, do you still remember where were you on May 4, 1988 at about 12:30 o’clock early in the morning?

A I was at San Pedro St., Lagao, General Santos City. Q What were you doing there at that particular time and place?A I was standing beside my friends, Joel Notarte and Eduardo Leyson VI. Q Aside from your friends, Joel Notarte and Eduardo Leyson VI, were there other persons present?A Yes, sir. Q What were you doing at that particular time?A We were conversing. Q While you were conversing with your friends which includes Eduardo Leyson VI and Joel Notarte, do

you remember of any extraordinary incident that happened in that early morning and at that particular place and time?

A Yes, sir. Q Tell this Honorable Court what happened?A Suddenly, Eduardo Leyson VI and Joel Notarte were stabbed. Q Did you see the person who suddenly stabbed Eduardo Leyson VI?A Yes, sir. Q Is this person present in Court now?A Yes, sir. Q Will you please point him out to the court?A He is there (witness is pointing to a person sitting on the accused bench who, when asked his name,

answered Rogelio Soplente.) Q Did you see the person who stabbed Joel Notarte?A Yes, sir. Q Do you know that person?A Yes, sir. Q Is he present in Court now?A Yes, sir. Q Will you please point him out to the Court?A That person, sir. (Witness points to a person seated on the accused bench, who, when asked his name,

answered Nicanor Soplente.)[29]

Besinga testified as follows:

Q Were you standing somewhere in that street at that particular time at 12:30 o’clock in the early morning of May 4, 1988?

A We were standing in front of the residence of Ventura. Q While you were there standing along that street in front of the residence of Ventura as you stated, do

you remember if any extraordinary incident happened?A Yes, sir. Q Will you please tell this Court what happened?

12

A I saw that Gingging and Joel were stabbed. Q When you said Gingging, whom are you referring to?A I am referring to Eduardo Leyson VI. Q Do you know who stabbed Eduardo Leyson VI?A Yes, sir. Q Will you please tell this Honorable Court who stabbed Eduardo Leyson VI?A Rogelio Soplente. Q Is this Rogelio Soplente present in court now?A Yes, sir. Q Will you please point him out to the Court?A That person, sir. (Witness is pointing to a person, who, when asked his name, answered Rogelio

Soplente.) Q You said a certain Joel was also stabbed, what is the family name of Joel?A Notarte.Q And have you seen who stabbed Joel Notarte? Atty. Vencer: Leading, Your Honor. Q Who stabbed Joel Notarte?A Nicanor Soplente. Q Is this Nicanor Soplente present in Court now?A Yes, sir. Q Will you please point him out?A That person seated on the accused bench. (Witness is pointing to a person who, when asked his name,

answered Nicanor Soplente.)[30]

Leyson, on the other hand testified thus:

Q Will you please tell us what unusual incident was that?A There was trouble at the place where the amateur singing contest was held. Q Then, what happened next?A I was stabbed, sir. One of my companions was also stabbed. Q Where were you specifically when you were stabbed?A I was at the road, waiting for my younger brother. Q Were you able to identify the person who stabbed you?A Yes, sir. Atty. Vencer: Leading, Your Honor. Q The question is, were you able to identify the person. Court:

13

Already answered. Q This person, you said, stabbed you, is he in court now?A Yes, sir. Q Will you point him out?A Those two persons sitting over there. (Witness is pointing to the two persons sitting on the accused

bench, who, when asked their names, answered Rogelio Soplente and Nicanor Soplente. Q Of the two, Rogelio Soplente and Nicanor Soplente, who stabbed you?A Rogelio, sir.

. . . .Q By the way, you said that two of them attacked you and you pointed to one of them as the Rogelio

Soplente who personally stabbed you. How about the other one, what did he do?A He was the one who stabbed Joel Notarte.[31]

Based on the foregoing, it is glaringly apparent that none of the main prosecution witnesses ever identified Rogelio as the one who stabbed Notarte and caused his death. Rather, they pointed at Nicanor as the perpetrator of the crime against Notarte. The declarations made by the witnesses were categorical and they never even made an attempt to correct themselves. Yet, their categorical declarations were belied by the admission of Rogelio himself who candidly admitted his own acts. Said declarations were also belied by the findings of the trial court which held thus:

. . . The version given by Leyson that it was Rogelio who stabbed him and Nicanor who stabbed Notarte who was standing less than a meter from him a little bit to his back on the right side would not be supported by the actual happening because it would appear that the stabbing which he said happened simultaneously is against reality because if it were true that Rogelio and Nicanor were on the left side of Leyson and that Leyson was a little bit forward with Notarte on his right it would have been unlikely if not impossible for the two to simultaneously stab because he (Leyson) would be blocking the way of Nicanor. What is more logical and believable is that after stabbing Leyson Rogelio immediately stabbed Notarte hitting him on the left side of his body below the armpit.[32]

It has been ruled that the very act of giving false testimony impeaches that witness’ own testimony and the court is compelled to exclude it from all consideration.[33] The findings of the trial court coupled with the admission of Rogelio himself as to who actually stabbed Notarte discredits the testimony of the prosecution witnesses. The veracity of their testimonies had been effectively destroyed.

Thus, left uncontradicted is the testimony of Rogelio admitting the act of stabbing Notarte. With the core of said testimony being the exculpatory claim of self-defense, however, it is burdened by its own weight.

In order for self-defense to prosper, the following requisites must be present: (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.[34]

The appellate court held that on the element of unlawful aggression alone, appellant’s (Rogelio’s) evidence relative thereto fell far short of being “clear and convincing.”[35]

We do not agree.

Rogelio’s testimony showed that there was indeed unlawful aggression on the part of Notarte. The pertinent parts of the transcript of stenographic notes provide thus:

14

Q While you were walking, what happened?A Suddenly, people were running. Q Running towards what direction?A Towards me and they suddenly surrounded me. Q How many persons surrounded you?A More than ten (10) persons. Q And when these ten (10) persons surrounded you, what was the first thing that happened?A One of them pointed at me and said, “Do you want to fight?” Q And when he uttered those words, what did you tell him?A I told him, “We don’t want a fight, we are here to watch the amateur singing contest.” Q And after telling him that, what did this person who pointed to you and challenged you to a fight do?A That person pulled his revolver and said “Do you want this?” Q Simultaneously saying, “Do you want this,” what happened?A When he pulled a gun from his waist, he immediately pointed his gun at me, and I simultaneously

parried the gun and it burst. Q And what did you do?A After the gun burst, simultaneously I stopped (stabbed) him. Q Where was he hit?A On his left upper arm. Q That gun that burst, where was it directed at that time it was pulled? Prosecutor Oco:

Already answered, Your Honor. Court:

Yes, It was pointed at him. Q How far from your head was that gun when it burst? Prosecutor Oco:

No, Your Honor, please. We object. It is misleading. Court:

Sustained. Q Where was the gun, what part of your body was the gun pointed?A At my face. Q And when he was hit, what happened to him?A I did not know anymore, sir because simultaneous to that, I received kicks. Q From where, left or right?A From my right side. Q And that person who kicked you, after kicking you, what did he do?A He continued attacking me.

15

Q So, what did you do?A I stabbed him. Q Was he hit?A Yes, sir.[36]

Based on the uncontradicted testimony of Rogelio, he was kicked by Notarte immediately after he stabbed Leyson. Viewed in an isolated context, the act of kicking Rogelio by Notarte might seem insufficient as an act of unlawful aggression, considering that Notarte just witnessed his friend, Leyson, being stabbed. Perhaps, this was the context in which the lower courts appreciated Rogelio’s claim of self-defense. After all, the immediate vindication even of a stranger is recognized as a justifying circumstance.

However, there is a wider context which should be appreciated. As concluded by the trial court, the Soplente cousins were surrounded by Leyson and his companions, some of whom were armed.[37] Animosity between these two sets had been fostered just a few hours earlier. Leyson had drawn first and fired first. At this juncture, Rogelio had every reason to believe that it was not only Leyson who meant him harm, but that Leyson’s companions were of the same mindset. The fact that Leyson’s aggression had already been repelled did not eliminate the threat to Rogelio’s well-being in the hands of Leyson’s companions. The kicks employed by Notarte did nothing but remind Rogelio that the threats to his life or limb had not ceased, even if those from Leyson’s had.

The Court of Appeals implied that it has not been indubitably ascertained that Notarte had kicked Rogelio, or that Notarte was armed or otherwise attacked Rogelio. But the same time, it cannot be disputed that Notarte was no neutral bystander with no interest in the confrontation at hand. Notarte was one of Leyson’s confederates, present at the crucial moment for the same malevolent intentions towards Rogelio as that of his cohorts’.

At the commencement of the attack, Rogelio could not have been obliged to view Notarte, or any other member of the posse for that matter, as a less menacing threat than Leyson. We have to understand that these events occurred spontaneously in a matter of seconds or even simultaneously. Rogelio bore no superhuman power to slow down time or to prevent the events from unfolding at virtual warp speed, to be able to assess with measured certainty the appropriate commensurate response due to each of his aggressors. Even those schooled in the legal doctrines of self-defense would, under those dire circumstances, be barely able to discern the legally defensible response and immediately employ the same. Our laws on self-defense are supposed to approximate the natural human responses to danger, and not serve as our inconvenient rulebook based on which we should acclimatize our impulses in the face of peril.

It would be wrong to compel Rogelio to have discerned the appropriate calibrated response to Notarte’s kicking when he himself was staring at the evil eye of danger. That would be a gargantuan demand even for the coolest under pressure. The Court has been reasonable enough to recognize some unreason as justifiable in the law of self-defense. As stated in the case of People v. Boholst-Caballero.[38]

The law on self-defense embodied in any penal system in the civilized world finds justification in man’s natural instinct to protect, repel and save his person or rights from impending danger or peril; it is based on that impulse of self-preservation born to man and part of his nature as a human being.[39]

The second element which is reasonable necessity of the means employed to prevent or repel the unlawful aggression was likewise present in the case at bar. The knife Rogelio habitually carried was the only weapon he had in his person.[40] It was but logical that the knife would be the only thing he could use against his attackers since the latter were collectively armed with canes and a handgun.

Anent the third element of self-defense, there was no evidence to show that Rogelio had provoked Notarte into a fight. The lower court’s finding on this point is backed by the evidence on record. As the lower court held, it is a fact that Rogelio had not done anything to provoke the victim prior to or at the time of the fatal encounter.[41]

16

All the elements of self-defense having been established through the uncontradicted testimony of Rogelio, the reversal of the lower courts’ decision is in order. Under the law, a person does not incur any criminal liability if the act committed is in defense of his person; thus, Rogelio is entitled to an acquittal in this case.

WHEREFORE, the decision appealed from is REVERSED and appellant Rogelio Soplente is ACQUITTED of the crime charged. His immediate release is hereby ORDERED unless he is detained for some other lawful cause. No costs.

SO ORDERED.

DANTE O. TINGA Associate Justice

17

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. Nos. L-33466-67 April 20, 1983

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.MAMERTO NARVAEZ, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.

MAKASIAR, J.:

This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch I, in Criminal Cases Nos. 1815 and 1816 for murder which, after a joint trial, resulted in the conviction of the accused in a decision rendered on September 8, 1970, with the following pronouncement:

Thus, we have a crime of MURDER qualified by treachery with the aggravating circumstance of evident premeditation offset by the mitigating circumstance of voluntary surrender. The proper penalty imposable, therefore, is RECLUSION PERPETUA (Arts. 248 and 64, Revised Penal Code).

Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the crime of murder,

(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs of the deceased Davis Q. Fleischer in the sum of P 12,000.00 as compensatory damages, P 10,000.00 as moral damages, P 2,000.00 as attorney's fees, the offended party having been represented by a private prosecutor, and to pay the costs;

(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs of the deceased Flaviano Rubia in the sum of P12,000.00 as compensatory damages, P10,000.00 as moral damages, P2,000.00 as attorney's fees, the offended party having been represent by a private prosecutor, and to pay the costs (p. 48, rec.).

The facts are summarized in the People's brief, as follows:

At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano and Cesar Ibanez together with the two deceased Davis Fleischer and Flaviano Rubia, were fencing the land of George Fleischer, father of deceased Davis Fleischer. The place was in the boundary of the highway and the hacienda owned by George Fleischer. This is located in the municipality of Maitum, South Cotabato. At the place of the fencing is the house and rice drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n., Pieza II). At that time, appellant was taking his rest, but when he heard that the walls of his house were being chiselled, he arose and there he saw the fencing going on. If the fencing would go on, appellant would be prevented from getting into his house and the bodega of his ricemill. So he addressed the group, saying 'Pare, if possible you stop destroying my house and if possible we will talk it over what is good,' addressing the deceased Rubia, who is appellant's compadre. The deceased Fleischer, however, answered: 'No, gademit, proceed, go ahead.' Appellant apparently lost his equilibrium and he got his gun and shot Fleischer, hitting him. As Fleischer fell down, Rubia ran towards the jeep, and knowing there is a gun on the jeep, appellant fired at Rubia, likewise hitting him (pp. 127-133, t.s.n., Defense transcript). Both Fleischer and Rubia died as a result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9, Appellant's Brief, p.161, rec.).

It appears, however, that this incident is intertwined with the long drawn out legal battle between the Fleischer and Co., Inc. of which deceased Fleischer was the secretary-treasurer and deceased Rubia the assistant manager, on the one hand, and the land settlers of Cotabato, among whom was appellant.

18

From the available records of the related cases which had been brought to the Court of Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this Court on certiorari (G.R. No. L-26757 and L-45504), WE take judicial notice of the following antecedent facts:

Appellant was among those persons from northern and central Luzon who went to Mindanao in 1937 and settled in Maitum, a former sitio of Kiamba and now a separate municipality of South Cotabato. He established his residence therein, built his house, cultivated the area, and was among those who petitioned then President Manuel L. Quezon to order the subdivision of the defunct Celebes Plantation and nearby Kalaong Plantation totalling about 2,000 hectares, for distribution among the settlers.

Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American landowner in Negros Oriental, filed sales application No. 21983 on June 3, 1937 over the same area formerly leased and later abandoned by Celebes Plantation Company, covering 1,017.2234 hectares.

Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in 1941 but the survey report was not submitted until 1946 because of the outbreak of the second world war. According to the survey, only 300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside for Sales Application No. 21983, while the rest were subdivided into sublots of 5 to 6 hectares each to be distributed among the settlers (pp. 32-33, G.R. No. L-45504).

The 300 hectares set aside for the sales application of Fleischer and Company was declared open for disposition, appraised and advertised for public auction. At the public auction held in Manila on August 14, 1948, Fleischer and Company was the only bidder for P6,000.00. But because of protests from the settlers the corresponding award in its favor was held in abeyance, while an investigator was sent by the Director of Lands to Kiamba in the person of Atty. Jose T. Gozon Atty. Gozon came back after ten days with an amicable settlement signed by the representative of the settlers. This amicable settlement was later repudiated by the settlers, but the Director of Lands, acting upon the report of Atty. Gozon, approved the same and ordered the formal award of the land in question to Fleischer and Company. The settlers appealed to the Secretary of Agriculture and Natural Resources, who, however, affirmed the decision in favor of the company.

On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of Cotabato which then consisted only of one sala, for the purpose of annulling the order of the Secretary of Agriculture and Natural Resources which affirmed the order of the Director of Lands awarding the contested land to the company. The settlers as plaintiffs, lost that case in view of the amicable settlement which they had repudiated as resulting from threats and intimidation, deceit, misrepresentation and fraudulent machination on the part of the company. They appealed to the Court of Appeals (CA-G.R. No. 28858-R) which likewise affirmed on August 16, 1965 the decision of the Court of First Instance in favor of the company.

This resulted in the ouster of the settlers by an order of the Court of First Instance dated September 24, 1966, from the land which they had been occupying for about 30 years. Among those ejected was the appellant who, to avoid trouble, voluntarily dismantled his house, built in 1947 at a cost of around P20,000.00, and transferred to his other house which he built in 1962 or 1963 near the highway. The second house is not far from the site of the dismantled house. Its ground floor has a store operated by Mrs. June Talens who was renting a portion thereof. He also transferred his store from his former residence to the house near the highway. Aside from the store, he also had a rice mill located about 15 meters east of the house and a concrete pavement between the rice mill and the house, which is used for drying grains and copra.

On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa and other leaders filed Civil Case No. 755 in the Court of First Instance of Cotabato, Branch I. to obtain an injunction or annulment of the order of award with prayer for preliminary injunction. During the pendency of this case, appellant on February 21, 1967 entered into a contract of lease with the company whereby he agreed to lease an area of approximately 100 to 140 square meters of Lot No. 38 from the company (Exh. 9, p. 1, Folder of Exhibits for Defense) for a consideration of P16.00 monthly. According to him, he signed the contract although the ownership of the land was

19

still uncertain, in order to avoid trouble, until the question of ownership could be decided. He never paid the agreed rental, although he alleges that the milling job they did for Rubia was considered payment. On June 25, 1968, deceased Fleischer wrote him a letter with the following tenor:

You have not paid six months rental to Fleischers & Co., Inc. for that portion of land in which your house and ricemill are located as per agreement executed on February 21, 1967. You have not paid as as even after repeated attempts of collection made by Mr. Flaviano Rubia and myself.

In view of the obvious fact that you do not comply with the agreement, I have no alternative but to terminate our agreement on this date.

I am giving you six months to remove your house, ricemill, bodega, and water pitcher pumps from the land of Fleischers & Co., Inc. This six- month period shall expire on December 31, 1966.

In the event the above constructions have not been removed within the six- month period, the company shall cause their immediate demolition (Exhibit 10, p. 2, supra).

On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot 38 by putting bamboo posts along the property line parallel to the highway. Some posts were planted right on the concrete drier of appellant, thereby cutting diagonally across its center (pp. 227-228, t.s.n., Vol. 2), with the last post just adjacent to appellant's house (p. 231, t.s.n., supra). The fence, when finished, would have the effect of shutting off the accessibility to appellant's house and rice mill from the highway, since the door of the same opens to the Fleischers' side. The fencing continued on that fateful day of August 22, 1968, with the installation of four strands of barbed wire to the posts.

At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his farm all morning, was awakened by some noise as if the wall of his house was being chiselled. Getting up and looking out of the window, he found that one of the laborers of Fleischer was indeed chiselling the wall of his house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing the barbed wire and deceased Fleischer was commanding his laborers. The jeep used by the deceased was parked on the highway. The rest of the incident is narrated in the People's Brief as above-quoted. Appellant surrendered to the police thereafter, bringing with him shotgun No. 1119576 and claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).

Appellant now questions the propriety of his conviction, assigning the following errors:

First Assignment of Error: That the lower court erred in convicting defendant-appellant despite the fact that he acted in defense of his person; and

Second Assignment of Error: That the court a quo also erred in convicting defendant-appellant although he acted in defense of his rights (p. 20 of Appellant's Brief, p. 145, rec.).

The act of killing of the two deceased by appellant is not disputed. Appellant admitted having shot them from the window of his house with the shotgun which he surrendered to the police authorities. He claims, however, that he did so in defense of his person and of his rights, and therefore he should be exempt from criminal liability.

Defense of one's person or rights is treated as a justifying circumstance under Art. 11, par. 1 of the Revised Penal Code, but in order for it to be appreciated, the following requisites must occur:

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 (Art. 11, par. 1, Revised Penal Code, as amended).

20

The aggression referred to by appellant is the angry utterance by deceased Fleischer of the following words: "Hindi, sigue, gademit, avante", in answer to his request addressed to his compadre, the deceased Rubia, when he said, "Pare, hinto mona ninyo at pag-usapan natin kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This was in reaction to his having been awakened to see the wall of his house being chiselled. The verbal exchange took place while the two deceased were on the ground doing the fencing and the appellant was up in his house looking out of his window (pp. 225-227, supra). According to appellant, Fleischer's remarks caused this reaction in him: "As if, I lost my senses and unknowingly I took the gun on the bed and unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr. Fleischer" (p. 132, supra). As for the shooting of Rubia, appellant testified:

When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing the shot, Mr. Rubia looked at Mr. Fleischer and when Mr. Fleischer fell down, Mr. Rubia ran towards the jeep and knowing that there was a firearm in the jeep and thinking that if he will take that firearm he will kill me, I shot at him (p. 132, supra, Emphasis supplied).

The foregoing statements of appellant were never controverted by the prosecution. They claim, however, that the deceased were in lawful exercise of their rights of ownership over the land in question, when they did the fencing that sealed off appellant's access to the highway.

A review of the circumstances prior to the shooting as borne by the evidence reveals that five persons, consisting of the deceased and their three laborers, were doing the fencing and chiselling of the walls of appellant's house. The fence they were putting up was made of bamboo posts to which were being nailed strands of barbed wire in several layers. Obviously, they were using tools which could be lethal weapons, such as nail and hammer, bolo or bamboo cutter, pliers, crowbar, and other necessary gadgets. Besides, it was not disputed that the jeep which they used in going to the place was parked just a few steps away, and in it there was a gun leaning near the steering wheel. When the appellant woke up to the sound of the chiselling on his walls, his first reaction was to look out of the window. Then he saw the damage being done to his house, compounded by the fact that his house and rice mill will be shut off from the highway by the fence once it is finished. He therefore appealed to his compadre, the deceased Rubia, to stop what they were doing and to talk things over with him. But deceased Fleischer answered angrily with 'gademit' and directed his men to proceed with what they were doing.

The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would have resulted in the further chiselling of the walls of appellant's house as well as the closure of the access to and from his house and rice mill-which were not only imminent but were actually in progress. There is no question, therefore, that there was aggression on the part of the victims: Fleischer was ordering, and Rubia was actually participating in the fencing. This was indeed aggression, not on the person of appellant, but on his property rights.

The question is, was the aggression unlawful or lawful? Did the victims have a right to fence off the contested property, to destroy appellant's house and to shut off his ingress and egress to his residence and the highway?

Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land or tenements.

However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of the order of award to Fleischer and Company was still pending in the Court of First Instance of Cotabato. The parties could not have known that the case would be dismissed over a year after the incident on August 22, 1968, as it was dismissed on January 23, 1970 on ground of res judicata, in view of the dismissal in 1965 (by the Court of Appeals) of Civil Case No. 240 filed in 1950 for the annulment of the award to the company, between the same parties, which the company won by virtue of the compromise agreement in spite of the subsequent repudiation by the settlers of said compromise agreement; and that such 1970 dismissal also carried the dismissal of the supplemental petition filed by the Republic of the Philippines on November 28, 1968 to annul the sales patent and to cancel the corresponding certificate of title issued to the company, on the ground that the Director of Lands had no authority to conduct the sale due to his failure to comply with the mandatory requirements for publication. The dismissal of the government's supplemental petition was premised on the ground that after its filing on November 28, 1968, nothing more was done by the petitioner Republic of the Philippines except to adopt all the evidence and arguments of plaintiffs with whom it joined as parties-plaintiffs.

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Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment in Civil Case No. 755 filed on November 14, 1966 and his execution of the contract of lease on February 21, 1967 was just to avoid trouble. This was explained by him during cross-examination on January 21, 1970, thus:

It happened this way: we talked it over with my Mrs. that we better rent the place because even though we do not know who really owns this portion to avoid trouble. To avoid trouble we better pay while waiting for the case because at that time, it was not known who is the right owner of the place. So we decided until things will clear up and determine who is really the owner, we decided to pay rentals (p. 169, t.s.n., Vol.6).

In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, Defense Exhibits) within which to vacate the land. He should have allowed appellant the peaceful enjoyment of his properties up to that time, instead of chiselling the walls of his house and closing appellant's entrance and exit to the highway.

The following provisions of the Civil Code of the Philippines are in point:

Art. 536. In no case may possession be acquired through force or intimidation as long as there is a possessor who objects thereto. He who believes that he has an action or a right to deprive another of the holding of a thing must invoke the aid of the competent court, if the holder should refuse to deliver the thing.

Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected in or restored to said possession by the means established by the laws and the Rules of Court (Articles 536 and 539, Civil Code of the Philippines).

Conformably to the foregoing provisions, the deceased had no right to destroy or cause damage to appellant's house, nor to close his accessibility to the highway while he was pleading with them to stop and talk things over with him. The assault on appellant's property, therefore, amounts to unlawful aggression as contemplated by law.

Illegal aggression is equivalent to assault or at least threatened assault of immediate and imminent kind (People vs. Encomiendas, 46 SCRA 522).

In the case at bar, there was an actual physical invasion of appellant's property which he had the right to resist, pursuant to Art. 429 of the Civil Code of the Philippines which provides:

Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property (Emphasis supplied).

The reasonableness of the resistance is also a requirement of the justifying circumstance of self-defense or defense of one's rights under paragraph 1 of Article 11, Revised Penal Code. When the appellant fired his shotgun from his window, killing his two victims, his resistance was disproportionate to the attack.

WE find, however, that the third element of defense of property is present, i.e., lack of sufficient provocation on the part of appellant who was defending his property. As a matter of fact, there was no provocation at all on his part, since he was asleep at first and was only awakened by the noise produced by the victims and their laborers. His plea for the deceased and their men to stop and talk things over with him was no provocation at all.

Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the elements for justification are present. He should therefore be held responsible for the death of his victims, but he could be credited with the special mitigating circumstance of incomplete defense, pursuant to paragraph 6, Article 13 of the Revised Penal Code.

The crime committed is homicide on two counts. The qualifying circumstance of treachery cannot be appreciated in this case because of the presence of provocation on the part of the deceased. As WE held earlier in People vs. Manlapaz (55 SCRA 598), the element of a sudden unprovoked attack is therefore lacking.

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Moreover, in order to appreciate alevosia, "it must clearly appear that the method of assault adopted by the aggressor was deliberately chosen with a special view to the accomplishment of the act without risk to the assailant from any defense that the party assailed might have made. This cannot be said of a situation where the slayer acted instantaneously ..." (People vs. Cañete, 44 Phil. 481).

WE likewise find the aggravating (qualifying) circumstance of evident premeditation not sufficiently established. The only evidence presented to prove this circumstance was the testimony of Crisanto Ibañez, 37 years old, married, resident of Maitum, South Cotabato, and a laborer of Fleischer and Company, which may be summarized as follows:

On August 20, 1968 (two days before the incident) at about 7:00 A.M., he was drying corn near the house of Mr. and Mrs. Mamerto Narvaez at the crossing, Maitum, South Cotabato, when the accused and his wife talked to him. Mrs. Narvaez asked him to help them, as he was working in the hacienda. She further told him that if they fenced their house, there is a head that will be broken. Mamerto Narvaez added 'Noy, it is better that you will tell Mr. Fleischer because there will be nobody who will break his head but I will be the one.' He relayed this to Mr. Flaviano Rubia, but the latter told him not to believe as they were only Idle threats designed to get him out of the hacienda (pp. 297-303, t.s.n., Vol. 2).

This single evidence is not sufficient to warrant appreciation of the aggravating circumstance of evident premeditation. As WE have consistently held, there must be "direct evidence of the planning or preparation to kill the victim, .... it is not enough that premeditation be suspected or surmised, but the criminal intent must be evidenced by notorious outward acts evincing the determination to commit the crime" (People vs. Ordioles, 42 SCRA 238). Besides, there must be a "showing" that the accused premeditated the killing; that the culprit clung to their (his) premeditated act; and that there was sufficient interval between the premeditation and the execution of the crime to allow them (him) to reflect upon the consequences of the act" (People vs. Gida, 102 SCRA 70).

Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the deceased Davis Fleischer, neutralizes his credibility.

Since in the case at bar, there was no direct evidence of the planning or preparation to kill the victims nor that the accused premeditated the killing, and clung to his premeditated act, the trial court's conclusion as to the presence of such circumstance may not be endorsed.

Evident premeditation is further negated by appellant pleading with the victims to stop the fencing and destroying his house and to talk things over just before the shooting.

But the trial court has properly appreciated the presence of the mitigating circumstance of voluntary surrender, it appearing that appellant surrendered to the authorities soon after the shooting.

Likewise, We find that passion and obfuscation attended the commission of the crime. The appellant awoke to find his house being damaged and its accessibility to the highway as well as of his rice mill bodega being closed. Not only was his house being unlawfully violated; his business was also in danger of closing down for lack of access to the highway. These circumstances, coming so near to the time when his first house was dismantled, thus forcing him to transfer to his only remaining house, must have so aggravated his obfuscation that he lost momentarily all reason causing him to reach for his shotgun and fire at the victims in defense of his rights. Considering the antecedent facts of this case, where appellant had thirty years earlier migrated to this so-called "land of promise" with dreams and hopes of relative prosperity and tranquility, only to find his castle crumbling at the hands of the deceased, his dispassionate plea going unheeded-all these could be too much for any man-he should be credited with this mitigating circumstance.

Consequently, appellant is guilty of two crimes of homicide only, the killing not being attended by any qualifying nor aggravating circumstance, but extenuated by the privileged mitigating circumstance of incomplete defense-in view of the presence of unlawful aggression on the part of the victims and lack of sufficient provocation on the

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part of the appellant-and by two generic mitigating circumstance of voluntary surrender and passion and obfuscation.

Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion temporal. Pursuant to Article 69, supra, the penalty lower by one or two degrees shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required to justify the same. Considering that the majority of the requirements for defense of property are present, the penalty may be lowered by two degrees, i.e., to prision correccional And under paragraph 5 of Article 64, the same may further be reduced by one degree, i.e., arresto mayor, because of the presence of two mitigating circumstances and no aggravating circumstance.

The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan American World Airways (43 SCRA 397), the award for moral damages was reduced because the plaintiff contributed to the gravity of defendant's reaction. In the case at bar, the victims not only contributed but they actually provoked the attack by damaging appellant's properties and business. Considering appellant's standing in the community, being married to a municipal councilor, the victims' actuations were apparently designed to humiliate him and destroy his reputation. The records disclose that his wife, councilor Feliza Narvaez, was also charged in these two cases and detained without bail despite the absence of evidence linking her to the killings. She was dropped as a defendant only upon motion of the prosecution dated October 31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on November 4, 1968 (p. 58, CFI rec. of Criminal Case No. 1815).

Moreover, these cases arose out of an inordinate desire on the part of Fleischer and Company, despite its extensive landholdings in a Central Visayan province, to extend its accumulation of public lands to the resettlement areas of Cotabato. Since it had the capability-financial and otherwise-to carry out its land accumulation scheme, the lowly settlers, who uprooted their families from their native soil in Luzon to take advantage of the government's resettlement program, but had no sufficient means to fight the big landowners, were the ones prejudiced. Thus, the moral and material suffering of appellant and his family deserves leniency as to his civil liability.

Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision correccional or arrests mayor and fine who has no property with which to meet his civil liabilities to serve a subsidiary imprisonment at the rate of one (1) day for each P 2.50. However, the amendment introduced by Republic Act No. 5465 on April 21, 1969 made the provisions of Art. 39 applicable to fines only and not to reparation of the damage caused, indemnification of consequential damages and costs of proceedings. Considering that Republic Act 5465 is favorable to the accused who is not a habitual delinquent, it may be given retroactive effect pursuant to Article 22 of the Revised Penal Code.

WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONLY TWO (2) HOMICIDES, MITIGATED BY THE PRIVILEGED EXTENUATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND OBFUSCATION, WITHOUT ANY AGGRAVATING CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS, WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD FOR MORAL DAMAGES AND ATTORNEY'S FEES.

CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST 22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.

SO ORDERED.

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