[G.R. No. 172832. April 7, 2009.

ROSARIO T. DE VERA, petitioner, vs. GEREN A. DE VERA, respondent.

DECISION

NACHURA, J p:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to
reverse the February 28, 2006 Decision 1 of the Court of Appeals (CA) and its May 24, 2006 Resolution 2
in CA-G.R. SP No. 91916. cSaATC

The facts, as found by the CA, are as follows:

Petitioner Rosario T. de Vera accused her spouse Geren A. de Vera (Geren) and Josephine F. Juliano
(Josephine) of Bigamy. They were thus indicted in an Information, the accusatory portion of which
reads:

That on or about the 31st day of July, 2003, in the Municipality of San Juan, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the said accused Geren A. de Vera being previously
united in lawful marriage with Rosario Carvajal Tobias-de Vera, and without said marriage having been
legally dissolved, did, then and there willfully, unlawfully and feloniously contract a second marriage
with accused Josephine Juliano y Francisco, who likewise has previous knowledge that accused Geren A.
de Vera's previous marriage with Rosario T. de Vera is still valid and subsisting, said second marriage
having all the essential requisites for its validity. ETHSAI

CONTRARY TO LAW. 3

Upon arraignment, Geren pleaded "Guilty". However, in a Motion 4 dated April 8, 2005, he prayed that
he be allowed to withdraw his plea in the meantime in order to prove the mitigating circumstance of
voluntary surrender. The motion was opposed 5 by petitioner on the ground that not all the elements of
the mitigating circumstance of "voluntary surrender" were present. She added that "voluntary
surrender" was raised only as an afterthought, as Geren had earlier invoked a "voluntary plea of guilty"
without raising the former. Finally, she posited that since the case was ready for promulgation, Geren's
motion should no longer be entertained.

In an Order 6 dated June 6, 2005, the Regional Trial Court (RTC) granted Geren's motion and appreciated
the mitigating circumstance of voluntary surrender in the determination of the penalty to be imposed.
Thus, on even date, the RTC promulgated Geren's Sentence, 7 the dispositive portion of which reads:

WHEREFORE, the court finds accused Geren A. de Vera guilty beyond reasonable doubt of the crime of
bigamy as charged in the Information and there being two (2) mitigating circumstances (Plea of guilty
and voluntary surrender), and no aggravating circumstance and applying the provision of Article 349 in
relation to paragraph 5, Article 64, Revised Penal Code, as amended, and the Indeterminate Sentence
Law, accused is hereby sentenced to suffer the penalty of 6 MONTHS of ARRESTO MAYOR, as minimum
to FOUR (4) YEARS, TWO (2) MONTHS of PRISION CORRECCIONAL, as maximum. HcSaAD

No pronouncement as to cost.

SO ORDERED.

Unsatisfied, petitioner moved for the partial reconsideration 8 of the decision but the same was denied
in an Order 9 dated August 25, 2005.

In the meantime, on June 8, 2005, Geren applied for probation 10 which was favorably acted upon by
the RTC by referring it to the Probation Officer of San Juan, Metro Manila. 11

For failure to obtain favorable action from the RTC, petitioner instituted a special civil action for
certiorari before the CA. However, she failed to persuade the CA which rendered the assailed decision
affirming the RTC Order and Sentence, and the assailed resolution denying her motion for
reconsideration. In sustaining the appreciation of the mitigating circumstance of voluntary surrender,
the CA maintained that all its requisites were present. DaHcAS

Hence, the instant petition based on the following grounds:

THE HONORABLE COURT OF APPEALS HAS DECIDED QUESTIONS OF SUBSTANCE IN A WAY NOT
PROBABLY IN ACCORD WITH LAW AND WITH APPLICABLE DECISIONS OF THIS HONORABLE COURT
WHEN:

A. IT ERRONEOUSLY FAILED TO APPLY THE RULING IN PEOPLE VS. CAGAS REGARDING THE
REQUISITES OF VOLUNTARY SURRENDER TO BE APPRECIATED IN THE INSTANT CASE.

B. IT INCORRECTLY AFFIRMED THE ORDER AND SENTENCE BOTH DATED JUNE 6, 2005 AND THE
ORDER DATED AUGUST 25, 2005 RENDERED BY THE PUBLIC RESPONDENT IN APPRECIATING THE
MITIGATING CIRCUMSTANCES OF PLEA OF GUILTY AND VOLUNTARY SURRENDER IN FAVOR OF THE
PRIVATE RESPONDENT IN CRIMINAL CASE NO. 130139, AN ACT THAT WARRANTS THIS HONORABLE
COURT TO EXERCISE ITS APPELLATE JUDICIAL DISCRETION. 12

The petition lacks merit.

While we are called upon to resolve the sole issue of whether the CA correctly denied the issuance of
the writ of certiorari, we cannot ignore the procedural issues which the trial and appellate courts failed
to appreciate.

In filing her motion for reconsideration before the RTC and her petition for certiorari before the CA,
petitioner sought the modification of the court's judgment of conviction against Geren, because of the
allegedly mistaken application of the mitigating circumstance of "voluntary surrender". The eventual
relief prayed for is the increase in the penalty imposed on Geren. Is this action of petitioner procedurally
tenable? aHSTID
Section 7, Rule 120 of the Revised Rules of Criminal Procedure provides:

Sec. 7. Modification of judgment. — A judgment of conviction may, upon motion of the accused, be
modified or set aside before it becomes final or before appeal is perfected. Except where the death
penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or
when the sentence has been partially or totally satisfied or served, or when the accused has waived in
writing his right to appeal, or has applied for probation.

Simply stated, in judgments of conviction, errors in the decision cannot be corrected unless the accused
consents thereto; or he, himself, moves for reconsideration of, or appeals from, the decision. 13

Records show that after the promulgation of the judgment convicting Geren of bigamy, it was petitioner
(as private complainant) who moved for the reconsideration 14 of the RTC decision. This was timely
opposed by Geren, invoking his right against double jeopardy. 15 Although the trial court correctly
denied the motion for lack of merit, we would like to add that the same should have been likewise
denied pursuant to the above-quoted provision of the Rules. AIDcTE

As explained in People v. Viernes, 16 the rule on the modification of judgments of conviction had
undergone significant changes before and after the 1964 and 1985 amendments to the Rules. Prior to
the 1964 Rules of Court, we held in various cases 17 that the prosecution (or private complainant)
cannot move to increase the penalty imposed in a promulgated judgment, for to do so would place the
accused in double jeopardy. The 1964 amendment, however, allowed the prosecutor to move for the
modification or the setting aside of the judgment before it became final or an appeal was perfected. In
1985, the Rules was amended to include the phrase "upon motion of the accused", effectively
resurrecting our earlier ruling prohibiting the prosecution from seeking a modification of a judgment of
conviction. Significantly, the present Rules retained the phrase "upon motion of the accused".
Obviously, the requisite consent of the accused is intended to protect him from having to defend himself
anew from more serious offenses or penalties which the prosecution or the court may have overlooked.
18

Equally important is this Court's pronouncement in People v. Court of Appeals 19 on the propriety of a
special civil action for certiorari assailing a judgment of conviction. In that case, the trial court convicted
the accused of homicide. The accused thereafter appealed his conviction to the CA which affirmed the
judgment of the trial court but increased the award of civil indemnity. The Office of the Solicitor General
(OSG), on behalf of the prosecution, then filed before this Court a petition for certiorari under Rule 65,
alleging grave abuse of discretion. The OSG prayed that the appellate court's judgment be modified by
convicting the accused of homicide without appreciating in his favor any mitigating circumstance. In
effect, the OSG wanted a higher penalty to be imposed. The Court declared that the petition constituted
a violation of the accused's right against double jeopardy; hence, dismissible. Certainly, we are not
inclined to rule differently.

Indeed, a petition for certiorari may be resorted to on jurisdictional grounds. In People v. Veneracion, 20
we entertained the petition for certiorari initiated by the prosecution to resolve the issue of whether
the RTC gravely abused its discretion in imposing a lower penalty. In that case, the trial judge, fully
aware of the appropriate provisions of the law, refused to impose the penalty of death because of his
strong personal aversion to the death penalty law, and imposed instead reclusion perpetua. In resolving
the case in favor of the prosecution, the Court concluded that the RTC gravely abused its discretion, and
remanded the case to the trial court for the imposition of the proper penalty. By so doing, we allowed a
modification of the judgment not on motion of the accused but through a petition initiated by the
prosecution. But it was an exceptional case. Here and now, we reiterate the rule that review is allowed
only in apparently void judgments where there is a patent showing of grave abuse of discretion
amounting to lack or excess of jurisdiction. The aggrieved parties, in such cases, must clearly show that
the public respondent acted without jurisdiction or with grave abuse of discretion amounting to lack of
jurisdiction. 21 IAcTaC

Grave abuse of discretion defies exact definition, but it generally refers to "capricious or whimsical
exercise of judgment as is equivalent to lack of jurisdiction." The abuse of discretion must be patent and
gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by
law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic
manner by reason of passion and hostility. 22 Obviously, no grave abuse of discretion may be attributed
to a court simply because of its alleged misappreciation of the mitigating circumstance of voluntary
surrender. Consequently, the trial court's action cannot come within the ambit of the writ's limiting
requirement of excess or lack of jurisdiction. Thus, the trial court's action becomes an improper object
of, and therefore non-reviewable by, certiorari. 23

Even if we dwell on the merit of the case, which had already been done by the appellate court, we find
no cogent reason to grant the instant petition.

For voluntary surrender to be appreciated, the following requisites should be present: 1) the offender
has not been actually arrested; 2) the offender surrendered himself to a person in authority or the
latter's agent; and 3) the surrender was voluntary. 24 The essence of voluntary surrender is spontaneity
and the intent of the accused to give himself up and submit himself to the authorities either because he
acknowledges his guilt or he wishes to save the authorities the trouble and expense that may be
incurred for his search and capture. 25 Without these elements, and where the clear reasons for the
supposed surrender are the inevitability of arrest and the need to ensure his safety, the surrender is not
spontaneous and, therefore, cannot be characterized as "voluntary surrender" to serve as a mitigating
circumstance. 26

Petitioner is correct in saying that in People v. Cagas 27 and in People v. Taraya, 28 the Court added a
fourth requisite before "voluntary surrender" may be appreciated in favor of the accused — that there is
no pending warrant of arrest or information filed. Since the warrant of arrest had been issued,
petitioner insists that arrest was imminent and the "surrender" could not be considered "voluntary".
AIDSTE

In Cagas, after the stabbing incident, the accused ran to the upper portion of the cemetery where a
police officer caught up with him. Thereupon, he voluntarily gave himself up. The Court held that if the
accused did then and there surrender, it was because he was left with no choice. Thus, the "surrender"
was not spontaneous.

In Taraya, when the accused learned that the police authorities were looking for him (because of a
warrant for his arrest), he immediately went to the police station where he confessed that he killed the
victim. Notwithstanding such surrender and confession to the police, the Court refused to appreciate
the mitigating circumstance in his favor.

Lastly, in People v. Barcino, Jr., 29 the accused surrendered to the authorities after more than one year
from the incident in order to disclaim responsibility for the killing of the victim. The Court refused to
mitigate the accused's liability because there was no acknowledgment of the commission of the crime or
the intention to save the government the trouble and expense in his search and capture; and there was
a pending warrant for his arrest.

Certainly, we cannot apply the same conclusion to the instant case. Cagas is not applicable because the
accused therein did not surrender but was caught by the police. In Taraya, the warrant of arrest had, in
fact, been issued and was forwarded to the proper authorities for implementation. In Barcino, it was a
year after the commission of the crime when the accused went to the police station, not for purposes of
acknowledging his culpability, nor to save the government the expense and trouble of looking for and
catching him, but actually to deny his culpability.

In this case, it appears that the Information was filed with the RTC on February 24, 2005. On March 1,
2005, the court issued an Order finding probable cause for the accused to stand trial for the crime of
bigamy and for the issuance of a warrant of arrest. In the afternoon of the same day, Geren surrendered
to the court and filed a motion for reduction of bail. After the accused posted bail, there was no more
need for the court to issue the warrant of arrest. 30 TaISDA

The foregoing circumstances clearly show the voluntariness of the surrender. As distinguished from the
earlier cases, upon learning that the court had finally determined the presence of probable cause and
even before the issuance and implementation of the warrant of arrest, Geren already gave himself up,
acknowledging his culpability. This was bolstered by his eventual plea of guilt during the arraignment.
Thus, the trial court was correct in appreciating the mitigating circumstance of "voluntary surrender".

We would like to point out that the mere filing of an information and/or the issuance of a warrant of
arrest will not automatically make the surrender "involuntary". In People v. Oco, 31 the Court
appreciated the mitigating circumstance because immediately upon learning that a warrant for his
arrest was issued, and without the same having been served on him, the accused surrendered to the
police. Thus, it is clear that notwithstanding the pendency of a warrant for his arrest, the accused may
still be entitled to the mitigating circumstance in case he surrenders, depending on the actual facts
surrounding the very act of giving himself up.

WHEREFORE, premises considered, the petition is DENIED. The Court of Appeals February 28, 2006
Decision and its May 24, 2006 Resolution in CA-G.R. SP No. 91916 are AFFIRMED.
SO ORDERED.

[G.R. No. 135551. October 27, 2000.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AMPIE TARAYA y CANTUBA @ "Boyet," ARLY
CANTUBA y DAIGO @ "Beget" and JONAR ESTRADA y CANTUBA, accused-appellants.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYNOPSIS

Ampie Taraya, Arly Cantuba and Jonar Estrada are relatives. They were convicted by the Regional Trial
Court, Branch 33, of Siniloan, Laguna of the crime of murder and were sentenced to suffer the penalty of
reclusion perpetua. The trial court relied heavily on the testimonies of Mariano Adillo and David
Angeles, Jr. Mariano Adillo testified that he is the co-worker of the victim Salvador Reyes. At about 10:00
p.m. of 24 September 1995, he, Salvador and three other companions were in a beer house in Famy,
Laguna. Salvador drank his beer outside the pub and was in a conversation with a girl. Later, Salvador
was approached and surrounded by accused Ampie Taraya, Arly Cantuba and Jonar Estrada. Mariano
hollered at them and the three accused immediately left. Half an hour later, Mariano went outside, but
Salvador was nowhere in sight. The following day, he learned of Salvador's death. To corroborate said
testimony, David Angeles, Jr. testified that the three accused were his neighbors. Late evening of 24
September 1995, he went out of the house to relieve himself as he was suffering from back pain. On the
street, he saw Ampie brandishing a one-foot long bolo. Behind Ampie were Arly and Jonar. Ampie
approached a man who seemed to be urinating, then held up the head of the man and slashed his neck,
while Arly and Jonar stood nearby ready to assist. Thereafter Ampie, Arly and Jonar ran to their
respective homes. Later, he learned that the victim was Salvador Reyes. Contrarily, Ampie claimed that
he acted in self-defense while Arty and Jonar interposed alibi as their defense. Defense witness Domingo
Decena testified that while he was walking on the road, he saw Salvador Reyes who was also walking
and holding an iron pipe about one and a half feet long. When he came face to face with Ampie, he tried
to hit Ampie with the pipe, but Ampie was able to avoid. Ampie retaliated by hacking Salvador with a
bolo. Salvador ran away and he was followed behind by Ampie. Frightened with what he saw, Domingo
rushed back to his house.

The Court ruled that the prosecution's evidence failed to convince it of its sufficiency to prove with
moral certainty that there was conspiracy among accused-appellants to kill Salvador so as to hold Arly
and Jonar equally liable as Ampie for the death of Salvador. The testimony of David Angeles, Jr. is not
persuasive as to their participation in the crime. Arly and Jonar were both unarmed and they remained
behind Ampie. The only overt act attributed to them was that they appeared ready to assist. There was
no certainty as to their action to show a deliberate and concerted cooperation on their part as to
likewise render them liable for the killing of Salvador. Then, too, David could not be an absolutely
impartial witness. He had an axe to grind against Jonar who, only a few days earlier, or specifically on 13
September 1995, had a fight with Danilo Angeles, a brother of David. The latter was present during that
incident. It follows then that no credible third party witnessed how Ampie attacked and slashed
Salvador's neck with a bolo. There being no positive and direct evidence to show that the attack was
sudden and unexpected, treachery as a circumstance to qualify the killing to murder cannot be
appreciated against Ampie. Ampie then could only be liable for homicide. Ampie Taraya was found guilty
of homicide only and sentenced to an indeterminate prison term. Arly Cantuba and Jonar Estrada were
acquitted on ground of reasonable doubt.

SYLLABUS

1. CRIMINAL LAW; CONSPIRACY; CAN BE INFERRED FROM THE ACTS OF ALL ACCUSED WHICH
DENOTE A JOINT PURPOSE AND DESIGN. — A conspiracy exists when two or more persons come to an
agreement concerning the commission of a crime and decide to commit it. It does not require that such
agreement occurred for an appreciable period prior to the commission of the crime; it is sufficient that
at the time of the execution thereof, all accused had the same purpose and were united therein.
Conspiracy may be deduced from the mode and manner in which the crime was committed, or inferred
from the acts of all accused which denote a joint purpose and design, concerted action and community
of interest. In establishing conspiracy direct proof of a previous agreement is unnecessary. And, when it
is proven, the act of one is the act of all. DCTSEA

2. ID.; ID.; NOT ESTABLISHED IN CASE AT BAR. — Our meticulous evaluation of the prosecution's
evidence fails to convince us of its sufficiency to prove with moral certainty that there was conspiracy
among accused-appellants to kill Salvador so as to hold ARLY and JONAR equally liable as AMPIE for the
death of Salvador. There is at all no intimation that there was bad blood between Salvador and AMPIE or
ARLY or JONAR before the beerhouse incident. The accused-appellants may have come to the beerhouse
to enjoy together but not to took for Salvador. Neither is there evidence that the girl with whom
Salvador was conversing was AMPIE's girlfriend or was being courted by him and he felt jealous when he
saw Salvador conversing with her. The testimony of David Angeles, Jr. is not persuasive as to their
participation in the crime. ARLY and JONAR were both unarmed and they remained behind AMPIE. The
only overt act attributed to them was that they appeared ready to assist. There was no certainty as to
their action to show a deliberate and concerted cooperation on their part as to likewise render them
liable for the killing of Salvador.

3. ID.; QUALIFYING CIRCUMSTANCES; TREACHERY; ELEMENTS. — There is treachery when the

offender commits any of the crimes against the person, employing means, methods or forms in the
execution thereof which tend directly and specially to insure its execution, without risk to himself arising
from the defense which the offended party might make. Treachery as a qualifying circumstance requires
that the offender deliberately employs means of execution which deprives the person attacked no
opportunity to defend or retaliate. It must be proved by clear and convincing evidence or as conclusively
as the killing itself. The particulars as to how the aggression was made, or how the act which resulted in
the death of the victim began and developed must be established.
4. ID.; ID.; ID.; NOT APPRECIATED DUE TO ABSENCE OF DIRECT EVIDENCE THAT ATTACK ON VICTIM
WAS SUDDEN AND UNEXPECTED. — We even have doubts on the testimony of David Angeles, Jr. If
indeed Salvador was in the act of urinating when AMPIE suddenly came up from behind him, held the
head and slashed the neck of Salvador, then there must have been no prior physical confrontation
between the two. Yet, the post-mortem report (Exh. "A") of Dr. Jamolin records that the latter found the
following injuries on the body of Salvador: 1. Abrasions, circular, 1 inch, right temporal area. 2.
Abrasions, circular, 1 inch, lateral portion, infra-ocular area, right eye. These injuries prove that Salvador
and AMPIE must have had a fight. The incident at the beerhouse could be the proximate cause thereof.
Then, too, David could not be an absolutely impartial witness. He had an axe to grind against JONAR
who, only a few days earlier, or specifically on 13 September 1995, had a fight with Danilo Angeles, a
brother of David. The latter was present during that incident. It follows then that no credible third party
witnessed how AMPIE attacked and slashed Salvador's neck with a bolo. There being no positive and
direct evidence to show that the attack was sudden and unexpected, treachery as a circumstance to
qualify the killing to murder cannot be appreciated against AMPIE.

5. ID., MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER; REQUISITES. — The following are

the requisites of voluntary surrender: (1) the offender had not been actually arrested; (2) the offender
surrendered himself to a person in authority or to the latter's agent; (3) the surrender was voluntary;
and (4) there is no pending warrant of arrest or information filed. For a surrender to be voluntary, it
must be spontaneous and must also show the intent of the accused to submit himself unconditionally to
the authorities, either because he acknowledges his guilt or he wishes to save them the trouble and
expense incidental to his search and capture.

6. ID.; ID.; ID.; ID.; NOT APPRECIATED WHERE AT THE TIME OF SURRENDER, HE HAD A PENDING
WARRANT OF ARREST. — It cannot be denied that when AMPIE learned that the police authorities were
looking for him in connection with the death of Salvador Reyes, he immediately went to the police
station on 9 October 1995. It was there where he confessed to killing Salvador in self-defense. This is
bolstered by the testimony of the investigating officer SPO2 Emmanuel Martinez, who even entered in
the police blotter that AMPIE voluntarily surrendered to the police. However, the said surrender does
not constitute one which would classify as a mitigating circumstance. It must be emphasized that at the
time of his surrender, AMPIE already had a pending warrant of arrest which was issued on 4 October
1995, or five days before his surrender. His arrest by that time was imminent. We cannot then
appreciate in favor of AMPIE the mitigating circumstance of voluntary surrender. HCTDIS

7. ID.; HOMICIDE; IMPOSABLE PENALTY. — The penalty for homicide under Article 249 of the
Revised Penal Code is reclusion temporal. AMPIE, however, is entitled to the benefits of the
Indeterminate Sentence Law. He can then be sentenced to an indeterminate penalty whose minimum
shall be within the range of the penalty next lower in degree, which is prision mayor, and whose
maximum shall be that prescribed by law taking into account the modifying circumstances. Since no
modifying circumstances has been proven in this case, the maximum of the penalty shall be the medium
period of reclusion temporal. Thus, AMPIE can be sentenced to an indeterminate imprisonment penalty
ranging from ten (10) years of prision mayor medium as minimum to seventeen (17) years and four (4)
months of reclusion temporal medium as maximum.
DECISION

DAVIDE, JR., C.J p:

Accused-appellants appeal from the decision 1 in Criminal Case No. S- 1898 of the Regional Trial Court,
Branch 33 of Siniloan, Laguna, which found them guilty beyond reasonable doubt of the crime of murder
and sentenced each of them to suffer the penalty of reclusion perpetua and pay P50,000 to the heirs of
the victim, as well as the costs. SaITHC

Accused-appellants are relatives. Ampie Taraya (hereafter AMPIE) and Jonar Estrada (hereafter JONAR)
are cousins and the nephew of Arly Cantuba (hereafter ARLY). ARLY is the brother of the respective
mothers of AMPIE and JONAR.

The accusatory portion of the information 2 which charged them with murder reads as follows:

That on or about 11:20 o'clock [sic] in the evening of September 24, 1995 at Sitio Bagong Silang,
Barangay Batuhan, Municipality of Famy, Province of Laguna and within the jurisdiction of this
Honorable Court, the above-named accused while conveniently armed with deadly weapon (itakan),
with intent to kill, with evident premeditation and treachery and with abuse of superior strength
conspiring, confederating and mutually helping one another did then and there wilfully, unlawfully and
feloniously attack, assault, hack and slash the throat of one Salvador Reyes by [sic] the said weapon
thereby inflicting upon him hacking/slashing wound anterior neck, proximal end and directing backward
and superiorly at the base of the mandible cutting half the circumference of the neck cutting the
trachea, esophagus, neck vessels including jugular veins and carotid arteries on both sides sparing the
cervical vertebrae and cord which directly caused his death to the damage and prejudice of the surviving
heirs of the victim.

That the qualifying and aggravating circumstances of treachery, abuse of superior strength and evident
premeditation attended the commission of the crime.

CONTRARY TO LAW.

Accused-appellants pleaded not guilty upon arraignment. Trial on the merits ensued.

The prosecution presented Mariano Adillo, David Angeles, Jr., Gregorio Reyes and Dr. Gloria Jamolin.
The evidence for the prosecution established the following facts:

Mariano Adillo a co-worker of the victim Salvador Reyes in a sash factory, testified that he had known
Salvador for two months. At about 10:00 p.m. of 24 September 1995, he, Salvador and three other
companions were in a beer house in Famy, Laguna. Salvador drank his beer outside the pub and was in a
conversation with a girl. Both were within the view of Mariano. Later, Salvador was approached and
surrounded by three men, one of them faced him while the two others positioned themselves behind
him. Mariano hollered at the men, who immediately left.
Half an hour later Mariano went out, but Salvador was nowhere in sight. At about 11:00 p.m., Mariano
and a boy searched for him up to a billiard hall which was about 200 meters away. They returned to the
beer house and he instructed the boy to hail a tricycle for his ride home. When no tricycle could be
found he and a companion walked home. 3 The following day he learned of Salvador's death. 4

When asked in open court if he could identify the three persons who approached Salvador, Mariano
pointed to AMPIE, JONAR and ARLY.

David Angeles, Jr. testified that accused-appellants were his neighbors in Famy, Laguna. ARLY, with
whom AMPIE lived, was an adjacent neighbor, while JONAR lived some thirty feet away from his house.
He had known JONAR for some ten years, ARLY for about five years and AMPIE for three years. He never
had any misunderstanding with anyone of them. 5

According to David, in the late evening of 24 September 1995, he was at home and could hardly sleep as
he was suffering from a backache. He went out of the house to relieve himself. On the street he saw
AMPIE brandishing a one-foot long bolo. Behind AMPIE were ARLY and JONAR. They were about five
meters away from where David stood. AMPIE approached a man who seemed to be urinating. AMPIE
then held up the head of the man and slashed his neck once while his companions ARLY and JONAR
stood nearby ready to assist AMPIE. The victim was able to free himself and ran towards David until he
dropped a few meters from the house. Immediately AMPIE, ARLY and JONAR ran to their respective
homes. David later learned that the victim was Salvador Reyes. 6

David was certain of whom he saw because the place was illuminated. He went back to the house and
ten minutes later he saw people lurking outside with flashlights. He went out when he heard somebody
ask why there were bloodstains around. He kept quiet as he was reluctant to divulge what he saw, and
he feared the consequences should he be involved. A few days passed and since his conscience still
bothered him, he decided to reveal what he had witnessed. He gave a sworn statement 7 to the police.

According to Gregorio Reyes, his son Salvador Reyes died on 24 September 1995. At the time of his
death Salvador was thirty-nine years old, separated from his wife and was earning an average of P200 a
day. Salvador had confided to him that he had an altercation with ARLY. He mentioned this fact in his
sworn statement. 8 The funeral expenses he incurred amounted to P18,000; however, he could not
produce any receipt because some of the expenses were paid by his friends. 9

Dr. Gloria Jamolin performed an autopsy on Salvador Reyes. She noted the presence of abrasions in the
right temporal area and below the eyes and a hack wound at the neck which could have been caused by
a sharp instrument such as a bolo. Judging from the nature and the location of the wound, the assailant
was in front of the victim during the attack. The cause of death was cardio-respiratory arrest secondary
to shock and hemorrhage due to the hack wound penetrating the esophagus. 10 She prepared a post
mortem report. 11

The defense had another version of the incident. The witnesses it presented were Armando Bilara,
Domingo Decena, SPO2 Emmanuel Martinez, ARLY, JONAR and AMPIE.
Armando Bilara, a barangay tanod, claimed that he has known all accused-appellants for about three
years. On 13 September 1995 he was on his way home for lunch when a commotion took place near his
house. JONAR had a fistfight with Danilo Angeles, brother of prosecution witness David Angeles, Jr.
Danilo was atop of and giving blows to JONAR. Armando intervened and pacified both of them. He had
no idea what caused the scuffle. David was among the spectators of the fight but he did not interfere. 12

Domingo Decena was at home and watching a television show on the night of 24 September 1995 and
until 2:00 a.m. of the following day. Thereafter, he left the house to go to his brother's place to sleep.
While he was walking along the street, he saw another person who was also walking and holding an iron
pipe about one and a half feet long. He later learned that the man was Salvador Reyes. He also saw
AMPIE. When AMPIE came face to face with Salvador, the latter tried to hit AMPIE once with the pipe,
but AMPIE was able to duck and avoid being hit by the pipe. AMPIE retaliated by hacking Salvador with a
bolo. Salvador ran away, followed behind by AMPIE. Frightened with what he saw, Domingo rushed back
to his house. Twenty-five minutes later he saw a commotion outside and learned that Salvador was
found dead twenty meters away from AMPIE's house. 13

On cross-examination Domingo admitted that he did not tell anyone in the house of what he had just
witnessed. Neither did he inform the police because of fear. He also denied seeing David Angeles, Jr.
that night. He was unable to reveal what he saw for one and a half years because he was busy with work
and he had just learned that AMPIE was languishing in jail. It was AMPIE's wife who requested him to
testify. 14

SPO2 Emmanuel Martinez was among the policemen who arrived at the scene of the crime. The body of
Salvador Reyes was found some ten yards from the house of David Angeles, Jr. Accused-appellants were
implicated by an eyewitness to the death of Salvador. ARLY and JONAR were immediately incarcerated
while AMPIE, accompanied by his sister, surrendered at the police station on 9 October 1997. He
recorded in the police blotter the date and time of AMPIE's surrender. AMPIE admitted that he killed
Salvador, but alleged that he did so in self-defense. Martinez discontinued the investigation and advised
AMPIE to avail of the services of a lawyer from the Public Attorney's Office. 15

ARLY raised the defense of alibi. According to him, on 24 September 1995, he was at his place of work, a
coprasan. He stayed there until 8:00 p.m. and he immediately proceeded home. He slept an hour later.
At around 1:00 a.m. of the following day he was awakened by his wife, informing him that there were
several people milling outside. He went out and he saw the dead body of Salvador Reyes, whom he
knew by face. He returned home to sleep. He had not gone out of his house between the hours he slept
and woke up. In the morning of 25 September 1995, the police came to question him. He was allowed to
go home after the investigation. 16

ARLY surmised that David Angeles, Jr. linked him to the crime because of the squabble he had with him
on 13 September 1995, when his nephew JONAR was mauled by David and Bobby Angeles. He explained
that Armando Bilara arrived late during the encounter, for which reason Armando failed to see that
David was actually injured by JONAR.

ARLY further declared that he did not go to the beer house at any time on 24 September 1995. 17
JONAR also offered the defense of alibi. He had known Salvador Reyes for about fifteen years and during
that period he never had any misunderstanding with Salvador. He was at home in the evening of 24
September 1995. He slept at 8:00 p.m. and woke up at 5:00 a.m. the following day. He learned that
Salvador was killed that morning and the police came to arrest him two weeks after. He had no
involvement in Salvador's death, since he was asleep the whole night. He was not in the beer house as
alleged by Mariano Adillo. He asserted that David Angeles, Jr. implicated him in the murder of Salvador
because David is the brother of Danilo Angeles and he had a misunderstanding with Danilo's wife. The
incident happened on 13 September 1995, when Danilo punched him and David joined in the fracas. 18

AMPIE claimed self-defense. According to him in the early evening of 24 September 1995 he was in a
beer house. Then he proceeded to the nearby house of his friend Bebet, and stayed at the balcony. He
was just a meter away from the beer house when Lorna, a waitress from the beer house, approached
him and talked with him. During their conversation he noticed a man and his companions enter the beer
house. Later the man approached him and Bebet. The man asked him what he was doing, and he replied
that he was just listening to the music. The man also asked him if he had a relationship with Lorna and
he answered "not yet." Not satisfied with his response, the man punched him and Lorna parted them
away. The man left after warning him to wait as they would settle the matter. Lorna explained that the
man was a former boyfriend. After the threat he went home to JONAR's house to sleep. 19

However, AMPIE awoke at midnight and went outside the house to answer the call of nature. He armed
himself with a bolo as he was suspicious and frightful that night. He then saw a man opposite the house
of his neighbor Domeng, and the man, who was Salvador Reyes, attempted to hit him twice with an iron
pipe. He was able to avoid the first blow but the second blow hit him. In retaliation AMPIE swung his
bolo, dropped it and immediately went back to the house. The following morning he heard of the death
of Salvador. He did not tell anyone of what transpired that night. Instead, he reported to work at the
coprasan in Sta. Maria, Laguna and stayed there for three days. On the third day, he was fetched by his
employer to buy duck eggs in Pateros. He was able to return briefly to Famy, Laguna, on 2 October but
that same afternoon he left for Pasig City. 20

On 8 October AMPIE asked from his employer permission to leave for Pagsanjan, Laguna. In Pagsanjan
he was informed by his sister that the police was looking for him in connection with the death of
Salvador Reyes. Thus, the following day he and his sister went to the police station, where he identified
himself. He learned that his uncle ARLY and cousin JONAR were both in jail as they too were implicated
in the death of Salvador. AMPIE denied the participation of ARLY and JONAR, and insisted that it was
only he and Salvador who had an altercation. AMPIE was thereafter detained at the police station. He
requested that he be allowed to contact his employer and consult with the lawyer provided by the
latter. 21

On cross-examination AMPIE claimed that he swung his bolo to parry the second attempt of Salvador to
hit him with a pipe. He was unaware that he actually hit Salvador which resulted in the death of the
latter. 22
The trial court limited itself to the resolution of the following issues: (1) whether AMPIE acted in self-
defense, (2) whether ARLY and JONAR participated in the killing of Salvador Reyes, and (3) whether
AMPIE voluntarily surrendered to the police. DCHIAS

In its decision 23 of 6 February 1998, the trial court convicted accused-appellants and decreed, thus:

WHEREFORE, premises considered, judgment is hereby rendered finding all the accused AMPIE TARAYA
y CANTUBA, ARLY CANTUBA y DAIGO and JONAR ESTRADA y CANTUBA, guilty beyond reasonable doubt
for the crime of "MURDER," qualified by treachery, absent of any other mitigating or aggravating
circumstances, hereby sentences them to Reclusion Perpetua. To pay the heirs of the victim for his
death the amount of P50,000.00 and to pay the cost.

Accused Ampie Taraya y Cantuba, Arly Cantuba y Daigo and Jonar Estrada y Cantuba being detention
prisoners, it is hereby ordered that they be credited with the full [length] of their preventive
imprisonment if they agree voluntarily in writing to abide by the same disciplinary rules imposed upon
convicted prisoner, otherwise, they shall be credited with 4/5 of the period they had undergone
preventive imprisonment, in accordance with Art. 29 of the Revised Penal Code, as amended. EDISaA

The trial court gave credence to the witnesses of the prosecution, particularly to its eyewitness who
positively identified accused-appellants as the perpetrators of the crime. It rejected ARLY and JONAR's
defense of alibi because of its weakness considering their positive identification and that their
respective residences were only some meters away from where the dead body of Salvador Reyes was
found.

In repudiating AMPIE's claim of self-defense, the trial court noted the weak evidence proffered by him.
He failed to show any physical injury he could have sustained when Salvador allegedly hit him with the
iron pipe. The pipe was not presented, and none was found at the scene of the crime; and even
assuming there was indeed a pipe, AMPIE failed to establish the reasonable necessity of the means
employed to prevent the alleged unlawful aggression on the part of Salvador Reyes. It ruled that all the
elements of self-defense were not present. Hence, the killing of Salvador was not at all justified. EIDTAa

The trial court ruled that the killing of Salvador Reyes was attended with treachery. The attack was
sudden and accused-appellants deliberately employed means to ensure the success of their plan
without risk to themselves. Besides, their victim was without means to defend himself. Although it
found the presence of the aggravating circumstance of abuse of superior strength, it declared that the
same was absorbed in the qualifying circumstance of treachery. It found no factual basis for the
qualifying circumstance of evident premeditation. cEATSI

The trial court ruled that AMPIE could not benefit from the mitigating circumstance of voluntary
surrender. Salvador Reyes was killed on 24 September 1995. The complaint for murder was filed on the
third day of the following month, October, and a warrant of arrest was issued the day after. He admitted
the killing under claim of self-defense, it cannot be believed that he was unaware of the filing of the
case. The trial court concluded that the purpose of AMPIE's visit to the police station on 9 October 1995,
accompanied by his sister, was not to surrender but to verify the charge filed against him.
Finally, the trial court considered AMPIE's flight as an indication of guilt. He fled after the incident under
the pretext that his work required him to be away for several days.

Undaunted, accused-appellants AMPIE, ARLY and JONAR appealed to us from the judgment of
conviction. They anchor their appeal on the following alleged errors of the trial court:

1. . . . IN FINDING THAT THERE WAS CONSPIRACY TO KILL AMONG THE THREE ACCUSED;

2. . . . IN FINDING THAT CO-ACCUSED ARLY AND JONAR PARTICIPATED IN THE KILLING, OF THE
VICTIM; AND

3. . . . IN FINDING THAT THE CRIME OF MURDER WAS COMMITTED BY ACCUSED AMPIE WHEN THE
CRIME WAS ONLY HOMICIDE.

On the first and second assigned errors, they assert that ARLY and JONAR were not co-conspirators in
the killing of Salvador Reyes. They were implicated by David Angeles, Jr. who claimed to have seen them
behind AMPIE, allegedly ready to render assistance to AMPIE when the latter hacked the neck of
Salvador. They emphasize, however, that there is no evidence that they actually helped AMPIE, and no
overt act of killing could be attributed to them. Thus, they deserve an acquittal. AHSaTI

Anent the third assigned error, accused-appellants assail the finding of treachery and contend that
AMPIE could only be guilty of homicide and not murder. AMPIE hacked the victim only once and he
immediately fled thereafter. He did not even seek the help of ARLY and JONAR in killing the victim. He
was the lone assailant. For treachery to be appreciated, it must be proved by strong and convincing
evidence. The prosecution failed to do so.

Accused-appellants pray that ARLY and JONAR be acquitted of the crime charged because of reasonable
doubt, and that AMPIE be found guilty of homicide only, not murder.

The Office of the Solicitor General refutes the arguments raised in the Appellants' Brief. On the first and
second grounds, it counters that conspiracy can be inferred from the conduct of ARLY and JONAR. David
Angeles, Jr. unequivocally testified that both ARLY and JONAR were behind AMPIE, who was armed with
a bolo and with it approached Salvador Reyes, held his head up and hacked his neck. At that time ARLY
and JONAR's actions were described as "nakaalalay" and "anyong tutulong" 24 Said actions establish a
common design to attack Salvador. In a conspiracy to commit murder it is not necessary that all the
conspirators actually kill the victim. Besides, their action after the killing, that is scampering away
instead of rendering assistance to the victim, affirmed their criminal intent. ASTcaE

Anent the last argument, the Office of the Solicitor General maintains that the trial court properly
appreciated the qualifying circumstance of treachery. The means used directly and specifically insured
the death of Salvador without risk to accused-appellants. Salvador was alone and unarmed,
unsuspecting of what was to befall him. He had no opportunity to defend himself.

In their Reply Brief, accused-appellants insist on the exculpation of ARLY and JONAR, arguing that their
mere presence in the scene of the crime cannot constitute conspiracy. They assert that David Angeles,
Jr. had a wrong impression of what actually transpired. Moreover, there can be no treachery since
AMPIE was the lone perpetrator. IAEcCa

We affirm the conviction of accused-appellant AMPIE but only for homicide; and because of reasonable
doubt as to their guilt, we ACQUIT accused-appellants ARLY and JONAR.

The first and second issues shall be jointly discussed since they question the trial court's finding of
conspiracy, which resulted in the complicity of ARLY and JONAR.

The trial court relied heavily on the testimonies of Mariano Adillo and David Angeles, Jr. Mariano Adillo
testified that Salvador, prior to his death, was accosted by accused-appellants outside the beerhouse
where he was engaged in a conversation with a woman when accused-appellants arrived. One of the
accused-appellants directly laced Salvador, while the two others positioned themselves just behind the
first. Sensing danger, Mariano immediately bellowed at accused-appellants who immediately left
together. David Angeles, Jr., declared that he saw accused-appellants together at the time Salvador was
assaulted. ARLY and JONAR appeared to him to be ready to give assistance to AMPIE. Pertinent portion
of his testimony reads as follows:

xxx xxx xxx

Q What else did you notice when if any when according to you saw B Taraya?

A I saw B Taraya approaching a man who when I looked on that man as if urinating.

Q Where were Jonar Estrada and Arly Cantuba at the time according to you B Taraya slashed the
neck of the victim?

A They were near each other. In fact, Arly Cantuba and Jonar Estrada were ready to help B Taraya.

xxx xxx xxx

Q How about these three accused, what did they do if they did anything after the victim Salvador
Reyes was able to free himself and able to run away from them?

A B Taraya and Arly Cantuba slowly entered their house and Jonar Estrada run [sic] towards his
house.

xxx xxx xxx

Q And you stated that the two (2) other accused in this case Arly Cantuba and Jonar Estrada were
also in the scene of the crime?

A Yes, sir. "Nandoon po sila nakaalalay."

Q How far were the two other accused from the victim Salvador Reyes?

A They were side by side, sir.

Q How far?

A Maybe this distance.

Interpreter:

Witness demonstrated by his two hands the distance of about 1 & 1/2 feet.

Q I would like to direct your attention to your Sworn Statement which was already marked in
evidence as Exh. "B" particularly question 10 and your answer in said question and I will quote: "[A]no
naman ang palagay mo na naging partisipasyon nitong si Arly Cantuba and Jonar Estrada? Answer: "Sa
tingin ko po ay pagtutulung-tulungan itong namatay na si Salvador Reyes dahil nakaalalay silang dalawa
kay Boyet Taraya." Do you remember having given those [sic] answer when asked by the Police Officer
during the investigation?

A Yes, sir.

xxx xxx xxx

Q Why did you say that these two (2) accused Arly Cantuba and Jonar Estrada were "nakaalalay"?

A Because when Ampie Taraya slashed the neck of Salvador Reyes, the two (2) Jonar Estrada and
Arly Cantuba, were beside them and appears [sic] to be about [sic] to help, "anyong tutulong."

Q Why did you say that Mr. Witness? What did you conclude in the actuation of Arly Cantuba and
Jonar Estrada that you conclude that they were about to help?

A Because while Ampie was on the act of slashing the neck of Salvador Reyes, Jonar Estrada and
Arly Cantuba were approaching them ("papalapit sila").

Q So you are basing your conclusion that the other two (2) accused Arly Cantuba and Jonar Estrada
were about to help because you said while Boyet Taraya was approaching the victim Salvador Reyes, the
two other accused, I am referring to Arly Cantuba and Jonar Estrada, were also approaching, that is why
you said that they were "nakaalalay"?

A Yes, sir.

Q And aside from that Mr. [W]itness, you claimed that Arly Cantuba and Jonar Estrada were also
approaching, there was no other actuation or assistance made by these two (2) aside from the fact that
they were also there and approaching the victim while Boyet Taraya whom you said slashed the neck of
Salvador Reyes?

A That is only what I saw, that they were on the act of helping, "anyong tutulong."

xxx xxx xxx

 Their reaction was just about to help Boyet Taraya, they did not do anything against Salvador
Reyes. 25

A conspiracy exists when two or more persons come to an agreement concerning the commission of a
crime and decide to commit it. 26 It does not require that such agreement occurred for an appreciable
period prior to the commission of the crime; it is sufficient that at the time of the execution thereof, all
accused had the same purpose and were united therein. Conspiracy may be deduced from the mode
and manner in which the crime was committed, or inferred from the acts of all accused which denote a
joint purpose and design, concerted action and community of interest. 27 In establishing conspiracy
direct proof of a previous agreement is unnecessary. And, when it is proven, the act of one is the act of
all. 28

Our meticulous evaluation of the prosecution's evidence fails to convince us of its sufficiency to prove
with moral certainty that there was conspiracy among accused-appellants to kill Salvador so as to hold
ARLY and JONAR equally liable as AMPIE for the death of Salvador. TaCEHA

There is at all no intimation that there was bad blood between Salvador and AMPIE or ARLY or JONAR
before the beerhouse incident. The accused-appellants may have come to the beerhouse to enjoy
together but not to look for Salvador. Neither is there evidence that the girl with whom Salvador was
conversing was AMPIE's girlfriend or was being courted by him and he felt jealous when he saw Salvador
conversing with her.

The testimony of David Angeles, Jr. is not persuasive as to their participation in the crime. ARLY and
JONAR were both unarmed and they remained behind AMPIE. The only overt act attributed to them was
that they appeared ready to assist. There was no certainty as to their action to show a deliberate and
concerted cooperation on their part as to likewise render them liable for the killing of Salvador.

We even have doubts on the testimony of David Angeles, Jr. If indeed Salvador was in the act of
urinating, when AMPIE suddenly came up from behind him, held the head and slashed the neck of
Salvador, then there must have been no prior physical confrontation between the two. Yet, the post-
mortem report (Exh. "A") of Dr. Jamolin records that the latter found the following injuries on the body
of Salvador:

1. Abrasions, circular, 1 inch, right temporal area.

2. Abrasions, circular, 1 inch, lateral portion, infra-ocular area, right eye. 29

These injuries prove that Salvador and AMPIE must have had a fight. The incident at the beerhouse
could be the proximate cause thereof.

Then, too, David could not be an absolutely impartial witness. He had an axe to grind against JONAR
who, only a few days earlier, or specifically on 13 September 1995, had a fight with Danilo Angeles, a
brother of David. The latter was present during that incident.
It follows then that no credible third party witnessed how AMPIE attacked and slashed Salvador's neck
with a bolo. There being no positive and direct evidence to show that the attack was sudden and
unexpected, treachery as a circumstance to qualify the killing to murder cannot be appreciated against
AMPIE.

There is treachery when the offender commits any of the crimes against the person, employing means,
methods or forms in the execution thereof which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended party might make. 30 Treachery as a
qualifying circumstance requires that the offender deliberately employs means of execution which
deprives the person attacked no opportunity to defend or retaliate. 31 It must be proved by clear and
convincing evidence or as conclusively as the killing itself. 32 The particulars as to how the aggression
was made, or how the act which resulted in the death of the victim began and developed must be
established. 33

AMPIE then could only be liable for homicide. SDTaHc

An issue to be resolved, too, is whether AMPIE is entitled to the mitigating circumstance of voluntary
surrender. The following are the requisites of voluntary surrender: (1) the offender had not been
actually arrested; (2) the offender surrendered himself to a person in authority or to the latter's agent;
(3) the surrender was voluntary; and (4) there is no pending warrant of arrest or information filed. 34
For a surrender to be voluntary, it must be spontaneous and must also show the intent of the accused to
submit himself unconditionally to the authorities, either because he acknowledges his guilt or he wishes
to save them the trouble and expense incidental to his search and capture. 35

It cannot be denied that when AMPIE learned that the police authorities were looking for him in
connection with the death of Salvador Reyes, he immediately went to the police station on 9 October
1995. It was there where he confessed to killing Salvador in self-defense. This is bolstered by the
testimony of the investigating officer SPO2 Emmanuel Martinez, who even entered in the police blotter
that AMPIE voluntarily surrendered to the police However, the said surrender does not constitute one
which would classify as a mitigating circumstance. It must be emphasized that at the time of his
surrender, AMPIE already had a pending warrant of arrest 36 which was issued on 4 October 1995, or
five days before his surrender. His arrest by that time was imminent. We cannot then appreciate in favor
of AMPIE the mitigating circumstance of voluntary surrender.

The penalty for homicide under Article 249 of the Revised Penal Code is reclusion temporal. AMPIE,
however, is entitled to the benefits of the Indeterminate Sentence Law. He can then be sentenced to an
indeterminate penalty whose minimum shall be within the range of the penalty next lower in degree,
which is prision mayor and whose maximum shall be that prescribed by law taking into account the
modifying circumstances. Since no modifying circumstances has been proven in this case, the maximum
of the penalty shall be the medium period of reclusion temporal. Thus, AMPIE can be sentenced to an
indeterminate imprisonment penalty ranging from ten (10) years of prision mayor medium as minimum
to seventeen (17) years and four (4) months of reclusion temporal medium as maximum.
WHEREFORE, judgment is hereby rendered (I) AFFIRMING, insofar as accused-appellant Ampie Taraya is
concerned, the decision of 6 February 1998 of the Regional Trial Court of Siniloan, Laguna, Branch 33, in
Criminal Case No. 4324, with the modification that he is found guilty beyond reasonable doubt as
principal of the crime of homicide only and is hereby sentenced to suffer an indeterminate penalty of
imprisonment ranging from Ten (10) years and One (1) day of prision mayor medium as minimum to
Seventeen (17) years and Four (4) months of reclusion temporal medium as maximum, with all the
accessory penalties thereof, and to indemnify the heirs of Salvador Reyes in the sum of P50,000 as civil
indemnity for his death; (2) ACQUITTING on ground of reasonable doubt accused-appellants ARLY
CANTUBA and JONAR ESTRADA and ordering their immediate release from confinement, unless their
further detention is justified for any other lawful cause. The Director of the Bureau of Corrections shall
submit a report of their release within five (5) days from receipt of notice of this decision. TADaCH

Costs de oficio.

SO ORDERED.

[G.R. No. 146247. September 17, 2002.]

PEOPLE OF THE PHILIPPINES, plaintiff, vs. EDGAR DAWATON, accused.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYNOPSIS

Accused Edgar Dawaton was convicted of murder by the Regional Trial Court of Baler, Quezon, and was
sentenced to suffer the supreme penalty of death. On automatic review, accused argued that the trial
court erred in imposing the death penalty despite the attendance of mitigating circumstance of
voluntary surrender and the alternative circumstance of intoxication in his favor. ITSaHC

The Supreme Court affirmed Dawaton's conviction for murder, but modified the penalty imposed by the
trial court. The trial court's conclusion that accused murdered Leonides Lavares was sufficiently proved
by the testimonies of prosecution witnesses Domingo Reyes and Esmeraldo Cortez who both witnessed
the fatal stabbing. The testimony was not refuted by the accused himself who admitted that he stabbed
the victim three (3) times before his mind went blank and could no longer recall what he did after that.
Accused cannot also avail of the mitigating circumstance of voluntary surrender as he himself admitted
that he was arrested at his uncle's residence. The Court, however, held that the trial court erred in not
appreciating the alternative circumstance of intoxication in favor of the accused. The allegation that the
accused was drunk when he committed the crime was corroborated by the prosecution witnesses, and
there being no indication that the accused was a habitual drunkard or that his alcoholic intake was
intended to fortify his resolve to commit the crime, the circumstance of intoxication should be credited
in his favor. The Court modified the decision of the trial court by imposing the penalty of reclusion
perpetua.
SYLLABUS

1. CRIMINAL LAW; WAS QUALIFYING CIRCUMSTANCES; TREACHERY; PRESENT WHERE VICTIM

ATTACKED WHILE IN DEEP SLUMBER DUE TO EXCESSIVE AMOUNT OF ALCOHOL IMBIBED. — Treachery
clearly attended the killing. The accused attacked the victim while the latter was in deep slumber owing
to the excessive amount of alcohol he imbibed. We are not persuaded by the version of the accused that
the victim threatened to harm him with a grenade and that it was only to prevent this from happening
that he was forced to stab Leonides. We defer instead to the judgment of the trial court which gave
more credence to the version of the prosecution witnesses inasmuch as it was in a better position to
decide on the question of credibility, having heard the witnesses themselves and observed their
deportment during trial. According to the prosecution witnesses, the victim had no chance to defend
himself as he was dead drunk and fast asleep. He had no inkling at all of what was going to happen to
him since there was no prior argument or untoward incident between him and the accused. From all
indications they were on friendly terms; as in fact they were even kumpadres. No one knew nor
expected that when the accused momentarily excused himself, it was for the purpose of looking for a
knife, and without any warning, stabbing the victim who was sleeping. There is treachery when the
attack is upon an unconscious victim who could not have put up any defense whatsoever, or a person
who was dead drunk and sleeping on a bench and had no chance to defend himself. Clearly, the attack
was not only sudden but also deliberately adopted by the accused to ensure its execution without risk to
himself. ASEcHI

2. ID.; MITIGATING CIRCUMSTANCES; OFFER TO ENTER PLEA OF GUILTY TO LESSER OFFENSE

CANNOT BE CONSIDERED AS ATTENUATING CIRCUMSTANCE; TO BE CONSIDERED VOLUNTARY, PLEA
MUST BE TO THE CRIME CHARGED. — The accused is not entitled to the mitigating circumstance of plea
of guilty. While he offered to plead guilty to the lesser offense of homicide, he was charged with murder
for which he had already entered a plea of not guilty. We have ruled that an offer to enter a plea of
guilty to a lesser offense cannot be considered as an attenuating circumstance under the provisions of
Art. 13 of The Revised Penal Code because to be voluntary the plea of guilty must be to the offense
charged. Furthermore, Sec. 2, Rule 116, of the Revised Rules of Criminal Procedure requires the consent
of the offended party and the prosecutor before an accused may be allowed to plead guilty to a lesser
offense necessarily included in the offense charged. The prosecution rejected the offer of the accused.

3. ID.; ID.; VOLUNTARY SURRENDER; MUST BE SPONTANEOUS AND UNCONDITIONAL. — Nor can
the accused avail of the mitigating circumstance of voluntary surrender as he himself admitted that he
was arrested at his uncle's residence. The following elements must be present for voluntary surrender to
be appreciated: (a) the offender has not been actually arrested; (b) the offender surrendered himself to
a person in authority, and, (c) the surrender must be voluntary. Resorting to sophistry, the accused
argues that he was not arrested but "fetched" as he voluntarily went with the policemen when they
came for him. This attempt at semantics is futile and absurd. That he did not try to escape or resist
arrest after he was taken into custody by the authorities did not amount to voluntary surrender. A
surrender to be voluntary must be spontaneous, showing the intent of the accused to submit himself
unconditionally to the authorities, either because he acknowledges his guilt or because he wishes to
save them the trouble and expense necessarily included in his search and capture. It is also settled that
voluntary surrender cannot be appreciated where the evidence adduced shows that it was the
authorities who came looking for the accused. Moreover, the evidence submitted by the prosecution
belies the claim of the accused that he intended to submit himself to the authorities. The joint affidavit
of the arresting officers, the veracity of which was admitted by the parties and evidenced by a 20
October 1999 Order of the trial court, revealed that they chanced upon the accused trying to escape
from the rear of the cockpit building when they came looking for him. TaCIDS

4. ID.; ID.; PASSION OR OBFUSCATION; NO FACTUAL BASIS. — There is no factual basis to credit the
accused with the mitigating circumstance of outraged feeling analogous or similar to passion and
obfuscation. Other than his self-serving allegations, there was no evidence that the victim threatened
him with a grenade. Domingo Reyes and Esmeraldo Cortez testified that there was no prior altercation
or disagreement between Edgar and Leonides during the drinking spree, and they did not know of any
reason for Edgar's hostility and violence. On the contrary, Esmeraldo Cortez even recalled seeing the
two (2) in a playful banter (lambingan) during the course of their drinking indicating that the attack on
the accused was completely unexpected.

5. ID.; ALTERNATIVE CIRCUMSTANCES; INTOXICATION; APPLICABLE IN CASE AT BAR; NO

INDICATION THAT ACCUSED WAS A HABITUAL DRUNKARD OR THAT HIS ALCOHOL INTAKE WAS
INTENDED TO FORTIFY HIS RESOLVE TO COMMIT CRIME. — The trial court erred in not appreciating the
alternative circumstance of intoxication in favor of the accused. Under Art. 15 of The Revised Penal
Code, intoxication of the offender shall be considered as a mitigating circumstance when the offender
commits a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to
commit said felony. Otherwise, when habitual or intentional, it shall be considered as an aggravating
circumstance. The allegation that the accused was drunk when he committed the crime was
corroborated by the prosecution witnesses. The accused and his drinking companions had consumed
four (4) bottles of gin at the house of Esmeraldo Cortez, each one drinking at least a bottle. It was also
attested that while the four (4) shared another bottle of gin at the house of Amado Dawaton, it was the
accused who drank most of its contents. In addition, Esmeraldo testified that when Edgar and Leonides
arrived at his house that noon, they were already intoxicated. There being no indication that the
accused was a habitual drunkard or that his alcoholic intake was intended to fortify his resolve to
commit the crime, the circumstance of intoxication should be credited in his favor. Consequently, we
find that the trial court erroneously imposed the penalty of death. The accused was charged with
murder for which the law provides a penalty of reclusion perpetua to death. Under Art. 63, par. 3, of The
Revised Penal Code, in all cases in which the law prescribes a penalty composed of two (2) indivisible
penalties, such as in this case, when the commission of the act is attended by a mitigating circumstance
and there is no aggravating circumstance, the lesser penalty shall be applied. Since no aggravating
circumstance attended the killing but there existed the mitigating circumstance of intoxication, the
accused should be sentenced only to the lesser penalty of reclusion perpetua. SDHacT

DECISION

BELLOSILLO, J p:
EDGAR DAWATON was found by the trial court guilty of murder qualified by treachery and sentenced to
death, ordered to indemnify the heirs of the victim P50,000.00 plus the accessory penalties provided by
law, without subsidiary imprisonment in case of insolvency, and to pay the costs of suit. 1

An Information 2 for murder qualified by treachery and evident premeditation was filed against Edgar
Dawaton on 11 March 1999. When first arraigned he pleaded not guilty, 3 but during the pre-trial on 7
May 1999, he offered to plead guilty to the lesser offense of homicide but was rejected by the
prosecution, hence, the case proceeded to trial. IcDESA

The prosecution presented as witnesses the very persons who were with the accused and the victim
during the incident, namely, Domingo Reyes and Esmeraldo Cortez. The prosecution also presented
Generosa Tupaz, the mother of the victim, to prove the civil liability of the accused.

The evidence for the prosecution: On 20 September 1998 Esmeraldo Cortez was entertaining visitors in
his house in Sitio Garden, Brgy. Paltic, Dingalan, Aurora. His brother-in-law Edgar Dawaton and
kumpadre Leonides Lavares dropped by at about 12:00 o'clock noon followed by Domingo Reyes shortly
after. All three (3) guests of Esmeraldo were residents of Sitio Garden. They started drinking soon after.
At about 3:00 o'clock in the afternoon and after having consumed four (4) bottles of gin, they went to
the house of Amado Dawaton, Edgar's uncle, located about twenty (20) meters away from Esmeraldo's
house. They stayed at the balcony of the house and continued drinking. Amado Dawaton was not in.

Already drunk, Leonides decided to sleep on a papag or wooden bench, lying down on his right side
facing Domingo and Edgar using his right hand for a pillow. Edgar, Domingo and Esmeraldo continued
drinking until they finished another bottle of gin.

At about 3:30 in the afternoon, twenty (20) minutes after Leonides had gone to sleep, Edgar stood up
and left for his house. When he returned he brought with him a stainless knife with a blade 2 to 3 inches
long. Without a word, he approached Leonides who was sleeping and stabbed him near the base of his
neck. 4 Awakened and surprised, Leonides got up and blurted: "Bakit Pare, bakit?" 5 Instead of
answering, Edgar again stabbed Leonides on the upper part of his neck, spilling blood on Leonides' arm.

Leonides attempted to flee but Edgar who was much bigger grabbed the collar of his shirt and thus
effectively prevented him from running away. Edgar then repeatedly stabbed Leonides who, despite
Edgar's firm hold on him, was still able to move about twenty (20) meters away from the house of
Amado Dawaton before he fell to the ground at the back of Esmeraldo's house. But even then, Edgar still
continued to stab him. Edgar only stopped stabbing Leonides when the latter already expired. Edgar
then ran away towards the house of his uncle Carlito Baras situated behind the cockpit.

Domingo and Esmeraldo were positioned a few meters away from where Leonides was sleeping when
he was initially assaulted by Edgar. They were shocked by what happened but other than pleading for
Edgar to stop they were unable to help Leonides.

Domingo left for his house soon after the stabbing started as he did not want to get involved.
Nonetheless he felt pity for Leonides so he returned a few minutes later.
By then, Leonides was already dead and people had already gathered at the site. The mayor who was in
a nearby cement factory arrived and instructed them not to go near the body. They pointed to the
direction where Edgar fled. Edgar was later arrested at the house of his uncle, Carlito Baras, at Sitio
Aves, Brgy. Paltic, Dingalan.

Accused-appellant Edgar Dawaton was the sole witness for the defense. He did not deny that he
stabbed Leonides Lavares but insisted that he was provoked into stabbing him. Edgar claimed that the
night prior to the stabbing incident, or on 19 September 1998, his uncle Armando Ramirez went to his
house to welcome his return from Cavite where he worked as a carpenter. They started drinking gin at
about 7:00 o'clock in the evening and ended at 3:00 o'clock in the morning of the following day. He slept
and woke up at 6:00 o'clock in the morning of 20 September 1998.

Apparently, he did not have enough of the prior evening's drinking orgy. He went to his uncle's house
early that morning and after his uncle bought two (2) bottles of gin they started drinking again. Domingo
Reyes arrived at around 7:30 in the morning and joined them. Esmeraldo Cortez joined them about
12:00 o'clock noon and bought two (2) more bottles of gin. Later, the group with the exception of
Armando Ramirez transferred to the house of Esmeraldo upon the latter's invitation and drank two (2)
more bottles of gin.

In Edgar's version of the stabbing incident, a drunk and angry Leonides arrived at about 2:30 in the
afternoon and demanded that they — he and Edgar — return candles (magbalikan [tayo] ng kandila). 6
Leonides was godfather of a son of Edgar. Leonides also cursed and threatened to hang a grenade on
Edgar (P - t - ng ina mo. Hintayin mo ako. Kukuha ako ng granada at sasabitan kita!). 7

According to Edgar, he tried to calm down Leonides but the latter insisted on going home purportedly to
get a grenade. Alarmed because he knew Leonides had a grenade, Edgar went home to look for a bladed
weapon. He already had a knife with him but he thought it was short. Not finding another weapon, he
returned to Esmeraldo's house.

When he returned, Leonides was still in Esmeraldo's house and had joined in the drinking. He sat
opposite Leonides who resumed his tirades against him.

Again Leonides started to leave for his house purportedly to get a grenade. Afraid that Leonides would
make good his threat, Edgar held on to him and stabbed him. He did not know where and exactly how
many times he struck Leonides but he recalled doing it three (3) times before his mind went blank
(nablangko). 8 Edgar also claimed that he was in this mental condition when he left Leonides and ran to
the house of Carlito Baras. He did not know that he had already killed Leonides, only that he stabbed
him thrice. He regained his senses only when he reached his uncle Carlito's house.

Edgar further said that he sought his uncle's help so he could surrender but he was told to wait because
his uncle was then taking a bath. It was while waiting for his uncle when the policemen arrived to arrest
him. He maintained that he voluntarily went with them.
The medico-legal certificate dated 24 September 1998 issued by Dr. Ernesto C. del Rosario 9 showed
that the victim sustained a stab wound at the back and ten (10) stab wounds in front. He also had slash
wounds on his left hand and his tongue was cut off. The immediate cause of death was determined to
be "Hypovolemic Shock due to hemorrhage, multiple stabbed (sic) wounds." 10

On 20 October 1999 the parties entered into several stipulations which were embodied in an Order. 11
Specifically, they admitted the veracity of the Sinumpaang Salaysay dated 21 September 1998 executed
by SPO2 Ramil D. Gamboa and PO3 Gerry M. Fabros, 12 the police officers who arrested the accused;
the genuineness and due execution of the medico-legal certificate issued by Dr. Ernesto C. del Rosario;
and, the authenticity of the certificate of death 13 also issued by Dr. del Rosario. Thus, the presentation
of the arresting officers and Dr. del Rosario as witnesses was dispensed with.

On 20 November 1999 the trial court convicted Edgar Dawaton of murder qualified by treachery and
sentenced him to death.

We affirm the conviction of accused-appellant; we however modify the penalty imposed on him.

The conclusion that accused-appellant murdered Leonides Lavares was sufficiently proved by the
testimonies of prosecution witnesses Domingo Reyes and Esmeraldo Cortez who both witnessed the
fatal stabbing. This was not refuted by the accused himself who admitted that he stabbed the victim
three (3) times before his mind went blank and could no longer recall what he did after that.

Treachery clearly attended the killing. The accused attacked the victim while the latter was in deep
slumber owing to the excessive amount of alcohol he imbibed. We are not persuaded by the version of
the accused that the victim threatened to harm him with a grenade and that it was only to prevent this
from happening that he was forced to stab Leonides. We defer instead to the judgment of the trial court
which gave more credence to the version of the prosecution witnesses inasmuch as it was in a better
position to decide on the question of credibility, having heard the witnesses themselves and observed
their deportment during trial.

According to the prosecution witnesses, the victim had no chance to defend himself as he was dead
drunk and fast asleep. He had no inkling at all of what was going to happen to him since there was no
prior argument or untoward incident between him and the accused. From all indications they were on
friendly terms; as in fact they were even kumpadres. No one knew nor expected that when the accused
momentarily excused himself, it was for the purpose of looking for a knife, and without any warning,
stabbing the victim who was sleeping.

There is treachery when the attack is upon an unconscious victim who could not have put up any
defense whatsoever, 14 or a person who was dead drunk and sleeping on a bench and had no chance to
defend himself. 15 Clearly, the attack was not only sudden but also deliberately adopted by the accused
to ensure its execution without risk to himself.

The accused argues that trial court erred in imposing the death penalty despite the attendance of
mitigating and alternative circumstances in his favor. 16 He avers that he is entitled to the mitigating
circumstance of plea of guilty. We disagree. While the accused offered to plead guilty to the lesser
offense of homicide, he was charged with murder for which he had already entered a plea of not guilty.
We have ruled that an offer to enter a plea of guilty to a lesser offense cannot be considered as an
attenuating circumstance under the provisions of Art. 13 of The Revised Penal Code because to be
voluntary the plea of guilty must be to the offense charged. 17

Furthermore, Sec. 2, Rule 116, of the Revised Rules of Criminal Procedure requires the consent of the
offended party and the prosecutor before an accused may be allowed to plead guilty to a lesser offense
necessarily included in the offense charged. We note that the prosecution rejected the offer of the
accused.

Nor can the accused avail of the mitigating circumstance of voluntary surrender as he himself admitted
that he was arrested at his uncle's residence. 18 The following elements must be present for voluntary
surrender to be appreciated: (a) the offender has not been actually arrested; (b) the offender
surrendered himself to a person in authority, and, (c) the surrender must be voluntary. 19

Resorting to sophistry, the accused argues that he was not arrested but "fetched" as he voluntarily went
with the policemen when they came for him. This attempt at semantics is futile and absurd. That he did
not try to escape or resist arrest after he was taken into custody by the authorities did not amount to
voluntary surrender. A surrender to be voluntary must be spontaneous, showing the intent of the
accused to submit himself unconditionally to the authorities, either because he acknowledges his guilt
or because he wishes to save them the trouble and expense necessarily included in his search and
capture. 20 It is also settled that voluntary surrender cannot be appreciated where the evidence
adduced shows that it was the authorities who came looking for the accused. 21

Moreover, the evidence submitted by the prosecution belies the claim of the accused that he intended
to submit himself to the authorities. The joint affidavit of the arresting officers, the veracity of which
was admitted by the parties and evidenced by a 20 October 1999 Order of the trial court, revealed that
they chanced upon the accused trying to escape from the rear of the cockpit building when they came
looking for him. 22

Similarly, there is no factual basis to credit the accused with the mitigating circumstance of outraged
feeling analogous or similar 23 to passion and obfuscation. 24 Other than his self-serving allegations,
there was no evidence that the victim threatened him with a grenade. Domingo Reyes and Esmeraldo
Cortez testified that there was no prior altercation or disagreement between Edgar and Leonides during
the drinking spree, and they did not know of any reason for Edgar's hostility and violence. On the
contrary, Esmeraldo Cortez even recalled seeing the two (2) in a playful banter (lambingan) during the
course of their drinking 25 indicating that the attack on the accused was completely unexpected.

The accused would want us to reconsider the penalty imposed on him on account of his not being a
recidivist. He contends that an appreciation of this factor calls for a reduction of the penalty.

We are not persuaded. Recidivism is an aggravating circumstance the presence of which increases the
penalty. The converse however, that is, non-recidivism, is not a mitigating circumstance which will
necessarily reduce the penalty. Nonetheless, we hold that the trial court erred in not appreciating the
alternative circumstance of intoxication in favor of the accused. Under Art. 15 of The Revised Penal
Code, intoxication of the offender shall be considered as a mitigating circumstance when the offender
commits a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to
commit said felony. Otherwise, when habitual or intentional, it shall be considered as an aggravating
circumstance.

The allegation that the accused was drunk when he committed the crime was corroborated by the
prosecution witnesses. The accused and his drinking companions had consumed four (4) bottles of gin at
the house of Esmeraldo Cortez, each one drinking at least a bottle. 26 It was also attested that while the
four (4) shared another bottle of gin at the house of Amado Dawaton, it was the accused who drank
most of its contents. 27 In addition, Esmeraldo testified that when Edgar and Leonides arrived at his
house that noon, they were already intoxicated. 28 There being no indication that the accused was a
habitual drunkard or that his alcoholic intake was intended to fortify his resolve to commit the crime,
the circumstance of intoxication should be credited in his favor.

Consequently, we find that the trial court erroneously imposed the penalty of death. The accused was
charged with murder for which the law provides a penalty of reclusion perpetua to death. Under Art. 63,
par. 3, of The Revised Penal Code, in all cases in which the law prescribes a penalty composed of two (2)
indivisible penalties, such as in this case, when the commission of the act is attended by a mitigating
circumstance and there is no aggravating circumstance, the lesser penalty shall be applied. Since no
aggravating circumstance attended the killing but there existed the mitigating circumstance of
intoxication, the accused should be sentenced only to the lesser penalty of reclusion perpetua.

The trial court correctly ordered the accused to pay civil indemnity in the amount of P50,000.00 to the
heirs of the victim without need of proof other than the fact that a crime was committed resulting in the
death of the victim and that the accused was responsible therefor. 29 The heirs are also entitled to
moral damages pursuant to Art. 2206 of the New Civil Code on account of the mental anguish which
they suffered, and the amount of P50,000.00 is considered reasonable according to existing
jurisprudence. 30

WHEREFORE, the assailed Decision of the court a quo finding the accused EDGAR DAWATON guilty of
MURDER qualified by treachery is AFFIRMED with the modification that the penalty is reduced from
death to reclusion perpetua. The accused is ordered to pay the heirs of Leonides Lavares P50,000.00 in
civil indemnity and P50,000.00 in moral damages. IHaCDE

SO ORDERED.

[G.R. No. 140937. February 28, 2001.]

EXUPERANCIO CANTA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

Public Attorney's Office for petitioner.

The Solicitor General for respondent.

SYNOPSIS

The Court of Appeals affirmed the decision of the Regional Trial Court, Branch 25, Maasin, Southern
Leyte, convicting Exuperancio Canta of violation of P.D. No. 533, otherwise known as the Anti-Cattle
Rustling Law of 1974. Petitioner was not justified in taking the cow without the knowledge and
permission of its owner. If he thought it was the cow he had allegedly lost, he should have resorted to
the court for the settlement of his claim. What petitioner did in this case was to take the law in his own
hands. He surreptitiously took the cow from the custody of the caretaker, Gardenio Agapay, which act
belied his claim of good faith. However, the Court modified the decision of the Court of Appeals in two
respects. First, accused-appellant should be given the benefit of the mitigating circumstance analogous
to voluntary surrender he voluntarily took the cow to the municipal hall of Padre Burgos to place it
unconditionally in the custody of the authorities and thus saved them the trouble of having to recover
the cow from him. Second, the trial court correctly found petitioner guilty of violation of the law but it
erred in imposing the penalty of 10 years and 1 day of prision mayor, as minimum, to 12 years, 5
months and 11 days of reclusion temporal medium, as maximum. The trial court apparently considered
P.D. No. 533 as a special law and applied §1 of the Indeterminate Sentence Law. However, as held in
People v. Macatanda, P. D. No. 533 is not a special law. The penalty for its violation is in terms of the
classification and duration of penalties prescribed in the Revised Penal Code. Accordingly, petitioner
should be sentenced to an indeterminate penalty, the minimum of which is within the range of the
penalty next lower in degree, i.e., prision correccional maximum to prision mayor medium, and the
maximum of which is prision mayor in its maximum period or a prision term of four (4) years and two (2)
months of prision correccional maximum, as minimum, to ten (10) years and one (1) day of prision
mayor maximum, as maximum. HSAcaE

SYLLABUS

1. CRIMINAL LAW; PRESIDENTIAL DECREE NO. 533 (ANTI-CATTLE RUSTLING LAW OF 1974); CATTLE-
RUSTLING ELEMENTS. — The crime is committed if the following elements concur: (1) a large cattle is
taken; (2) it belongs to another; (3) the taking is done without the consent of the owner; (4) the taking is
done by any means, methods or scheme; (5) the taking is with or without intent to gain; and (6) the
taking is accomplished with or without violence or intimidation against person or force upon things.
EaHATD

2. ID.; ID.; ID.; ESTABLISHED IN CASE AT BAR. — These requisites are present in this case. First,
there is no question that the cow belongs to Narciso Gabriel. Petitioner's only defense is that in taking
the animal he acted in good faith and in the honest belief that it was the cow which he had lost. Second,
petitioner, without the consent of the owner, took the cow from the custody of the caretaker, Gardenio
Agapay, despite the fact that he knew all along that the latter was holding the animal for the owner,
Narciso. Third, petitioner falsified his Certificate of Ownership of Large Cattle by asking Telen to
antedate it prior to the taking to make it appear that he owned the cow in question. Fourth, petitioner
adopted "means, methods, or schemes" to deprive Narciso of his possession of his cow, thus
manifesting his intent to gain. Fifth, no violence or intimidation against persons or force upon things
attended the commission of the crime.
3. REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY; CERTIFICATE OF OWNERSHIP OF LARGE
CATTLE TO PROVE ACCUSED'S OWNERSHIP WAS FALSIFIED; CASE AT BAR. — Indeed, the evidence shows
that the Certificate of Ownership of Large Cattle which petitioner presented to prove his ownership was
falsified. Franklin Telen, the janitor in the municipal treasurer's office, admitted that he issued the
certificate to petitioner 10 days after Narciso's cow had been stolen. Although Telen has previously
executed a sworn statement claiming that he issued the certificate on February 27, 1985, he later
admitted that he antedated it at the instance of petitioner Exuperancio Canta, his friend, who assured
him that the cow was his. ADHcTE

4. ID.; ID.; ID.; ID.; COWLICKS FOUND ON THE COW THAT TALLY WITH WHAT WERE INDICATED ON
THE CERTIFICATE OF OWNERSHIP OF LARGE CATTLE HAS NO VALUE. — Telen's testimony was
corroborated by the certification of the municipal treasurer of Padre Burgos that no registration in the
name of petitioner was recorded in the municipal records. Thus, petitioner's claim that the cowlicks
found on the cow tally with that indicated on the Certificate of Ownership of Large Cattle has no value,
as this same certificate was issued after the cow had been taken by petitioner from Gardenio Agapay.
Obviously, he had every opportunity to make sure that the drawings on the certificate would tally with
that existing on the cow in question.

5. ID.; ID.; ID.; THE FACT THAT THE ACCUSED TOOK THE COW TO THE BARANGAY CAPTAIN AND
LATER TO THE POLICE AUTHORITIES DOES NOT PROVE HIS GOOD FAITH. — The fact that petitioner took
the cow to the barangay captain and later to the police authorities does not prove his good faith. He had
already committed the crime, and the barangay captain to whom he delivered the cow after taking it
from its owner is his own father. While the records show that he filed on April 30, 1986 a criminal
complaint against Narciso Gabriel, the complaint was dismissed after it was shown that it was filed as a
counter charge to a complaint earlier filed on April 16, 1986 against him by Narciso Gabriel. CAcEaS

6. ID.; ID.; ID.; COWS FREQUENTLY ATTEMPT TO SUCKLE TO ALIENS COWS. — Petitioner says that
he brought a mother cow to see if the cow in question would suckle to the mother cow. But cows
frequently attempt to suckle to alien cows. Hence, the fact that the cow suckled to the mother cow
brought by petitioner is not conclusive proof that it was the offspring of the mother cow.

7. ID.; ID.; ID.; OBTAINING FRAUDULENT CERTIFICATE AND MAKING USE OF IT NEGATES
ACCUSED'S CLAIM OF GOOD FAITH AND HONEST MISTAKE. — Petitioner's Certificate of Ownership is
not only "not in order." It is fraudulent, having been antedated to make it appear it had been issued to
him before he allegedly took the cow in question. That he obtained such fraudulent certificate and made
use of it negates his claim of good faith and honest mistake. That he took the cow despite the fact that
he knew it was in the custody of its caretaker cannot save him from the consequences of his act.
ASHICc

8. CRIMINAL LAW; PRESIDENTIAL DECREE NO. 533 (ANTI-CATTLE RUSTLING LAW OF 1974);
SURREPTIOUSLY TAKING THE COW FROM THE CUSTODY OF THE CARETAKER BELIES THE CLAIM OF
GOOD FAITH. — Petitioner was not justified in taking the cow without the knowledge and permission of
its owner. If he thought it was the cow he had allegedly lost, he should have resorted to the court for
the settlement of his claim. Art. 433 of the Civil Code provides that "The true owner must resort to
judicial process for the recovery of the property." What petitioner did in this case was to take the law in
his own hands. He surreptitiously took the cow from the custody of the caretaker, Gardenio Agapay,
which act belies his claim of good faith.

9. ID.; MITIGATING CIRCUMSTANCES; MITIGATING CIRCUMSTANCE ANALOGOUS TO VOLUNTARY

SURRENDER, APPRECIATED IN CASE AT BAR. — First, accused-appellant should be given the benefit of
the mitigating circumstance analogous to voluntary surrender. The circumstance of voluntary surrender
has the following elements: (1) the offender has not actually been arrested; (2) the offender surrenders
to a person in authority or to the latter's agent; and (3) the surrender is voluntary. In the present case,
petitioner Exuperancio Canta had not actually been arrested. In fact, no complaint had yet been filed
against him when he surrendered the cow to the authorities. It has been repeatedly held that for
surrender to be voluntary, there must be an intent to submit oneself unconditionally to the authorities,
showing an intention to save the authorities the trouble and expense that his search and capture would
require. In petitioner's case, he voluntarily took the cow to the municipal hall of Padre Burgos to place it
unconditionally in the custody of the authorities and thus saved them the trouble of having to recover
the cow from him. This circumstance can be considered analogous to voluntary surrender and should be
considered in favor of petitioner. aHADTC

10. ID.; PRESIDENTIAL DECREE NO. 533 (ANTI-CATTLE RUSTLING LAW OF 1974); NOT A SPECIAL
LAW; PENALTY FOR ITS VIOLATION IS PRESCRIBED IN THE REVISED PENAL CODE. — Second, the trial
court correctly found petitioner guilty of violation of §2(c) of P. D. No. 533, otherwise known as the Anti-
Cattle Rustling Law of 1974. However, it erred in imposing the penalty of 10 years and 1 day of prision
mayor, as minimum, to 12 years, 5 months and 11 days of reclusion temporal medium, as maximum.
The trial court apparently considered P. D. No. 533 as a special law and applied §1 of the Indeterminate
Sentence Law, which provides that "if the offense is punished by any other law, the court shall sentence
the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum
fixed by said law and the minimum shall not be less than the minimum term prescribed by the same."
However, as held in People v. Macatanda, P. D. No. 533 is not a special law. The penalty for its violation
is in terms of the classification and duration of penalties prescribed in the Revised Penal Code, thus
indicating that the intent of the lawmaker was to amend the Revised Penal Code with respect to the
offense of theft of large cattle. In fact, §10 of the law provides: The provisions of Articles 309 and 310 of
Act No. 3815, otherwise known as the Revised Penal Code, as amended, pertinent provisions of the
Revised Administrative Code, as amended, all laws, decrees, orders, instructions, rules and regulations
which are inconsistent with this Decree are hereby repealed or modified accordingly.

11. ID.; ID.; IMPOSABLE PENALTY. — There being one mitigating circumstance and no aggravating
circumstance in the commission of the crime, the penalty to be imposed in this case should be fixed in
its minimum period. Applying the Indeterminate Sentence Law, in relation to Art. 64 of the Revised
Penal Code, petitioner should be sentenced to an indeterminate penalty, the minimum of which is
within the range of the penalty next lower in degree, i.e., prision correccional maximum to prision
mayor medium, and the maximum of which is prision mayor in its maximum period. ECcaDT
DECISION

MENDOZA, J p:

This is a petition for review on certiorari of the decision, dated August 31, 1999, and resolution, dated
November 22, 1999, of the Court of Appeals, 1 which affirmed the decision of the Regional Trial Court,
Branch 25, Maasin, Southern Leyte, 2 finding petitioner Exuperancio Canta guilty of violation of P.D. No.
533, otherwise known as the Anti-Cattle Rustling Law of 1974, and sentencing him to ten (10) years and
one (1) day of prision mayor, as minimum, to twelve (12) years, five (5) months, and eleven (11) days of
reclusion temporal medium, as maximum, and to pay the costs. caCSDT

The information against petitioner alleged:

That on or about March 14, 1986, in the municipality of Malitbog, province of Southern Leyte,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent to
gain, did then and there, willfully, unlawfully and feloniously, take, steal and carry away one (1) black
female cow belonging to Narciso Gabriel valued at Three Thousand Pesos (P3,000.00) without the
knowledge and consent of the aforesaid owner, to his damage and prejudice in the amount aforestated.

CONTRARY TO LAW. 3

The prosecution established the following facts:

Narciso Gabriel acquired from his half-sister Erlinda Monter a cow, subject of the case, upon its birth on
March 10, 1984. The cow remained under the care of Erlinda Monter for sometime. Subsequently,
Narciso gave the care and custody of the animal, first, to Generoso Cabonce, from October 24, 1984 to
March 17, 1985; then to Maria Tura, from May 17, 1985 to March 2, 1986; and lastly, to Gardenio
Agapay, from March 3, 1986 until March 14, 1986 when it was lost. 4 It appears that at 5 o'clock in the
afternoon of March 13, 1986, Agapay took the cow to graze in the mountain of Pilipogan in Barangay
Candatag, about 40 meters from his hut. However, when he came back for it at past 9 o'clock in the
morning of March 14, 1986, Agapay found the cow gone. He found hoof prints which led to the house of
Filomeno Vallejos. He was told that petitioner Exuperancio Canta had taken the animal. 5

Upon instructions of the owner, Gardenio and Maria Tura went to recover the animal from petitioner's
wife, but they were informed that petitioner had delivered the cow to his father, Florentino Canta, who
was at that time barangay captain of Laca, Padre Burgos, Southern Leyte. Accordingly, the two went to
Florentino's house. On their way, they met petitioner who told them that if Narciso was the owner, he
should claim the cow himself. Nevertheless, petitioner accompanied the two to his father's house,
where Maria recognized the cow. As petitioner's father was not in the house, petitioner told Gardenio
and Maria he would call them the next day so that they could talk the matter over with his father.

However, petitioner never called them. Hence, Narciso Gabriel reported the matter to the police of
Malitbog, Southern Leyte. 6 As a result, Narciso and petitioner Exuperancio were called to an
investigation. Petitioner admitted taking the cow but claimed that it was his and that it was lost on
December 3, 1985. He presented two certificates of ownership, one dated March 17, 1986 and another
dated February 27, 1985, to support his claim (Exh. B). 7

Narciso presented a certificate of ownership issued on March 9, 1986, signed by the municipal treasurer,
in which the cow was described as two years old and female. On the reverse side of the certificate is the
drawing of a cow with cowlicks in the middle of the forehead, between the ears, on the right and left
back, and at the base of the forelegs and hindlegs (Exhs. C, C-1 to 4). 8 All four caretakers of the cow
identified the cow as the same one they had taken care of, based on the location of its cowlicks, its sex
and its color. Gardenio described the cow as black in color, with a small portion of its abdomen
containing a brownish cowlick, a cowlick in the middle of the forehead, another at the back portion
between the two ears, and four cowlicks located near the base of its forelegs and the hindlegs. 9

On the other hand, petitioner claimed he acquired the animal under an agreement which he had with
Pat. Diosdado Villanueva, that petitioner take care of a female cow of Pat. Villanueva in consideration
for which petitioner would get a calf if the cow produced two offsprings. Petitioner claimed that the cow
in question was his share and that it was born on December 5, 1984. This cow, however, was lost on
December 2, 1985. Petitioner said he reported the loss to the police of Macrohon, Padre Burgos, and
Malitbog, on December 3, 1985 (Exh. A and Exh. 1). 10

Petitioner said that on March 14, 1986, his uncle Meno told him that he had seen the cow at Pilipogan,
under the care of Gardenio Agapay. He, therefore, went to Pilipogan with the mother cow on March 14,
1986 to see whether the cow would suckle the mother cow. As the cow did, petitioner took it with him
and brought it, together with the mother cow, to his father Florentino Canta. 11 Maria Tura tried to get
the cow, but Florentino refused to give it to her and instead told her to call Narciso so that they could
determine the ownership of the cow. 12 As Narciso did not come the following day, although Maria did,
Florentino said he told his son to take the cow to the Municipal Hall of Padre Burgos. Petitioner did as he
was told. Three days later, Florentino and Exuperancio were called to the police station for investigation.
13

Petitioner presented a Certificate of Ownership of Large Cattle dated February 27, 1985 14 and a
statement executed by Franklin Telen, janitor at the treasurer's office of the municipality of Padre
Burgos, to the effect that he issued a Certificate of Ownership of Large Cattle in the name of petitioner
Exuperancio Canta on February 27, 1985 (Exh. 5). 15 The statement was executed at the preliminary
investigation of the complaint filed by petitioner against Narciso. 16

Petitioner's Certificate of Ownership was, however, denied by the municipal treasurer, who stated that
petitioner Exuperancio Canta had no Certificate of Ownership of Large Cattle in the municipality of
Padre Burgos (Exhs. E, E-1 and 2). 17 On the other hand, Telen testified that he issued the Certificate of
Ownership of Large Cattle to petitioner on March 24, 1986 but, at the instance of petitioner, he (Telen)
antedated it to February 27, 1985. 18

On January 24, 1997, the trial court rendered its decision finding petitioner guilty of the offense
charged. In giving credence to the evidence for the prosecution, the trial court stated:
From the affidavits and testimonies of the complainant and his witnesses, it is indubitable that it was
accused Exuperancio Canta who actually took the cow away without the knowledge and consent of
either the owner/raiser/caretaker Gardenio Agapay. DcCHTa

That the taking of the cow by the accused was done with strategy and stealth considering that it was
made at the time when Gardenio Agapay was at his shelter-hut forty (40) meters away tethered to a
coconut tree but separated by a hill.

The accused in his defense tried to justify his taking away of the cow by claiming ownership. He,
however, failed to prove such ownership. Accused alleged that on February 27, 1985 he was issued a
Certificate of Ownership of Large Cattle (Exh. 2-A) for his cow by Franklin Telen, a janitor at the Office of
the Municipal Treasurer of Padre Burgos, a neighboring town. On rebuttal Franklin Telen denied in Court
the testimony of the accused and even categorically declared that it was only on March 24, 1986 that
the accused brought the cow to the Municipal Hall of Padre Burgos, when he issued a Certificate of
Ownership of Large Cattle for the cow, and not on February 27, 1985. Franklin Telen testified thus:

"Q. According to the defense, this Certificate of Ownership of Large Cattle was issued by you on
February 27, 1985. Is that correct?

A. Based on the request of Exuperancio, I antedated this.

(TSN, June 3, 1992, p. 7)"

The testimony of Franklin Telen was confirmed in open court by no less than the Municipal Treasurer of
Padre Burgos, Mr. Feliciano Salva. (TSN, September 29, 1992, pp. 5-8).

If accused Exuperancio Canta were the owner of the cow in question, why would he lie on its
registration? And why would he have to ask Mr. Franklin Telen to antedate its registry? It is clear that
accused secured a Certificate of Ownership of Large Cattle (Exh. 2-A) by feigning and manipulation (Exhs.
A & B) only after the act complained of in the instant case was committed on March 14, 1986. His claim
of ownership upon which he justifies his taking away of the cow has no leg to stand on. Upon the other
hand, the complainant has shown all the regular and necessary proofs of ownership of the cow in
question. 19

The Court of Appeals affirmed the trial court's decision and denied petitioner's motion for
reconsideration. Hence, this petition. It is contended that the prosecution failed to prove beyond
reasonable doubt his criminal intent in taking the disputed cow.

First. Petitioner claims good faith and honest belief in taking the cow. He cites the following
circumstances to prove his claim:

1. He brought the mother cow to Pilipogan to see if the cow in question would suckle to the
mother cow, thus proving his ownership of it;
2. He compared the cowlicks of the subject cow to that indicated in the Certificate of Ownership of
Large Cattle issued on February 27, 1985 in his name, and found that they tally;

3. He immediately turned over the cow to the barangay captain, after taking it, and later to the
police authorities, after a dispute arose as to its ownership; and

4. He filed a criminal complaint against Narciso Gabriel for violation of P.D. No. 533.

These contentions are without merit.

P.D. No. 533, §2(c) defines cattle-rustling as

. . . the taking away by any means, methods or scheme, without the consent of the owner/raiser, of any
of the abovementioned animals whether or not for profit or gain, or whether committed with or without
violence against or intimidation of any person or force upon things. EIDaAH

The crime is committed if the following elements concur: (1) a large cattle is taken; (2) it belongs to
another; (3) the taking is done without the consent of the owner; (4) the taking is done by any means,
methods or scheme; (5) the taking is with or without intent to gain; and (6) the taking is accomplished
with or without violence or intimidation against person or force upon things. 20

These requisites are present in this case. First, there is no question that the cow belongs to Narciso
Gabriel. Petitioner's only defense is that in taking the animal he acted in good faith and in the honest
belief that it was the cow which he had lost. Second, petitioner, without the consent of the owner, took
the cow from the custody of the caretaker, Gardenio Agapay, despite the fact that he knew all along
that the latter was holding the animal for the owner, Narciso. Third, petitioner falsified his Certificate of
Ownership of Large Cattle by asking Telen to antedate it prior to the taking to make it appear that he
owned the cow in question. Fourth, petitioner adopted "means, methods, or schemes" to deprive
Narciso of his possession of his cow, thus manifesting his intent to gain. Fifth, no violence or intimidation
against persons or force upon things attended the commission of the crime.

Indeed, the evidence shows that the Certificate of Ownership of Large Cattle which petitioner presented
to prove his ownership was falsified. Franklin Telen, the janitor in the municipal treasurer's office,
admitted that he issued the certificate to petitioner 10 days after Narciso's cow had been stolen.
Although Telen has previously executed a sworn statement claiming that he issued the certificate on
February 27, 1985, he later admitted that he antedated it at the instance of petitioner Exuperancio
Canta, his friend, who assured him that the cow was his. 21

Telen's testimony was corroborated by the certification of the municipal treasurer of Padre Burgos that
no registration in the name of petitioner was recorded in the municipal records. Thus, petitioner's claim
that the cowlicks found on the cow tally with that indicated on the Certificate of Ownership of Large
Cattle has no value, as this same certificate was issued after the cow had been taken by petitioner from
Gardenio Agapay. Obviously, he had every opportunity to make sure that the drawings on the certificate
would tally with that existing on the cow in question.
The fact that petitioner took the cow to the barangay captain and later to the police authorities does not
prove his good faith. He had already committed the crime, and the barangay captain to whom he
delivered the cow after taking it from its owner is his own father. While the records show that he filed
on April 30, 1986 a criminal complaint against Narciso Gabriel, the complaint was dismissed after it was
shown that it was filed as a countercharge to a complaint earlier filed on April 16, 1986 against him by
Narciso Gabriel.

Petitioner says that he brought a mother cow to see if the cow in question would suckle to the mother
cow. But cows frequently attempt to suckle to alien cows. 22 Hence, the fact that the cow suckled to the
mother cow brought by petitioner is not conclusive proof that it was the offspring of the mother cow.

Second. Petitioner contends that even assuming that his Certificate of Ownership is "not in order," it
does not necessarily follow that he did not believe in good faith that the cow was his. If it turned out
later that he was mistaken, he argues that he committed only a mistake of fact but he is not criminally
liable.

Petitioner's Certificate of Ownership is not only "not in order." It is fraudulent, having been antedated to
make it appear it had been issued to him before he allegedly took the cow in question. That he obtained
such fraudulent certificate and made use of it negates his claim of good faith and honest mistake. That
he took the cow despite the fact that he knew it was in the custody of its caretaker cannot save him
from the consequences of his act. 23 As the Solicitor General states in his Comment:

If petitioner had been responsible and careful he would have first verified the identity and/or ownership
of the cow from either Narciso Gabriel or Gardenio Agapay, who is petitioner's cousin TSN, 9/12/91, p.
26). Petitioner, however, did not do so despite the opportunity and instead rushed to take the cow.
Thus, even if petitioner had committed a mistake of fact he is not exempted from criminal liability due
to his negligence. 24

In any event, petitioner was not justified in taking the cow without the knowledge and permission of its
owner. If he thought it was the cow he had allegedly lost, he should have resorted to the court for the
settlement of his claim. Art. 433 of the Civil Code provides that "The true owner must resort to judicial
process for the recovery of the property." What petitioner did in this case was to take the law in his own
hands. 25 He surreptitiously took the cow from the custody of the caretaker, Gardenio Agapay, which
act belies his claim of good faith.

For the foregoing reasons, we hold that the evidence fully supports the finding of both the trial court
and the Court of Appeals that accused-appellant is guilty as charged. There is therefore no reason to
disturb their findings.

However, the decision of the Court of Appeals should be modified in two respects. IaHAcT

First, accused-appellant should be given the benefit of the mitigating circumstance analogous to
voluntary surrender. The circumstance of voluntary surrender has the following elements: (1) the
offender has not actually been arrested; (2) the offender surrenders to a person in authority or to the
latter's agent; and (3) the surrender is voluntary. 26 In the present case, petitioner Exuperancio Canta
had not actually been arrested. In fact, no complaint had yet been filed against him when he
surrendered the cow to the authorities. It has been repeatedly held that for surrender to be voluntary,
there must be an intent to submit oneself unconditionally to the authorities, showing an intention to
save the authorities the trouble and expense that his search and capture would require. 27 In
petitioner's case, he voluntarily took the cow to the municipal hall of Padre Burgos to place it
unconditionally in the custody of the authorities and thus saved them the trouble of having to recover
the cow from him. This circumstance can be considered analogous to voluntary surrender and should be
considered in favor of petitioner.

Second, the trial court correctly found petitioner guilty of violation of §2(c) of P. D. No. 533, otherwise
known as the Anti-Cattle Rustling Law of 1974. However, it erred in imposing the penalty of 10 years and
1 day of prision mayor, as minimum, to 12 years, 5 months and 11 days of reclusion temporal medium,
as maximum. The trial court apparently considered P. D. No. 533 as a special law and applied §1 of the
Indeterminate Sentence Law, which provides that "if the offense is punished by any other law, the court
shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed
the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by
the same." However, as held in People v. Macatanda, 28 P. D. No. 533 is not a special law. The penalty
for its violation is in terms of the classification and duration of penalties prescribed in the Revised Penal
Code, thus indicating that the intent of the lawmaker was to amend the Revised Penal Code with respect
to the offense of theft of large cattle. In fact, §10 of the law provides:

The provisions of Articles 309 and 310 of Act No. 3815, otherwise known as the Revised Penal Code, as
amended, pertinent provisions of the Revised Administrative Code, as amended, all laws, decrees,
orders, instructions, rules and regulations which are inconsistent with this Decree are hereby repealed
or modified accordingly.

There being one mitigating circumstance and no aggravating circumstance in the commission of the
crime, the penalty to be imposed in this case should be fixed in its minimum period. Applying the
Indeterminate Sentence Law, in relation to Art. 64 of the Revised Penal Code, petitioner should be
sentenced to an indeterminate penalty, the minimum of which is within the range of the penalty next
lower in degree, i.e., prision correccional maximum to prision mayor medium, and the maximum of
which is prision mayor in its maximum period. DcSEHT

WHEREFORE, the decision of the Court of Appeals is AFFIRMED, with the modification that petitioner
Exuperancio Canta is hereby SENTENCED to suffer a prison term of four (4) years and two (2) months of
prision correccional maximum, as minimum, to ten (10) years and one (1) day of prision mayor
maximum, as maximum.

SO ORDERED.