G.R. No.

203961               July 29, 2015

PEOPLE OF THE PHILIPPINES

vs.
RODERICK LICAYAN, ROBERTO LARA AND ROGELIO "NOEL" DELOS REYES

This involves the re-opening of a kidnapping case in light of newly-discovered evidence

WHERE: The KIDNAPPING happened at Goodies Pares Marni House located at Loyola cor. Constancia St.,
Sampaloc, Manila. The perpetrators thereafter took the victims to a house in Daang Bakal, Parang, Marikina
where they were kept under detention against their will.

FACTS:
Before the date of Licayan and Lara's scheduled execution, and with the torrent of initiatives sparked by the
passionate national debate on the morality of capital punishment, two of their co-accused in the original
Information were arrested. On January 9, 2004, Pedro Mabansag (Mabansag), a double arm amputee and
suspected mastermind of the kidnapping of Joseph Tomas Co and Linda Manaysay, was arrested at Sitio
Lanipga, Barangay Magsaysay, Escalante City. On January 12, 2004, Rogelio Delos Reyes (Delos Reyes) was
arrested at Barangay Bayang Marihatag, Agusan del Sur. In light of these arrests, the Public Attorney's Office
(PAO) filed with this Court an Urgent Motion to Reopen the Case with Leave of Court.
These are the material portions of the original Information
That on or about August 10, 1998 at around 1:45 a.m., the above-named accused, conspiring, confederating and
mutually helping one another, armed with a handgun and with evident premeditation, did then and there
willfully, unlawfully and feloniously with the use of force and intimidation kidnap JOSEPH TOMAS CO and
LINDA MANA YSA Y for the purpose of extorting ransom in the amount of P 10 million at Goodies Pares
Marni House located at Loyola cor. Constancia St., Sampaloc, Manila, owned and managed by the
aforementioned victim Co and thereafter took them with the use of Toyota Tamaraw FX likewise owned by Co
as getaway vehicle to a house in Daang Bakal, Parang, Marikina and within the jurisdiction of this Honorable
Court where they were kept under detention against their will until they were able to escape the following day at
around 4:30 in the afternoon on August 11, 1998.
In the appeal now before the Court, accused-appellant Delos Reyes reiterates his defense that the exempting
circumstance of uncontrollable fear was present in his case while accused-appellants Licayan and Lara seek to
overturn their conviction on the basis of the newly discovered evidence presented during their retrial. (The
discussion of the highlighted issue is REMEDIAL in nature, read it in full text if you want further discussion
regarding the topic)
Delos Reyes now claims that he was forced to guard the victims by one Tata Placio, which the latter did by
pointing a gun at him. He asked Tata why he was pointing a gun at him, to which Tata replied that he should
stay and that Tata will kill him if he reports the matter to the police. When Delos Reyes went near the kitchen,
he saw a man and a woman. He noticed that the woman's hands were tied, but it did not occur to him that their
captivity was the matter that Tata warned him not to tell the police. 
PRIOR DECISIONS OF THE COURTS:
The RTC of Marikina City rendered its Decision finding Licayan, Lara and Delos Reyes guilty of the crime of
Kidnapping for Ransom under Article 267 of the Revised Penal Code.
The RTC Decision was appealed to the Court of Appeals, which affirmed the conviction of Licayan, Lara and
Delos Reyes in toto.
The Supreme Court affirmed the Decision of the Regional Trial Court (RTC) of Marikina City 
The Motion for Reconsideration of Licayan and Lara was denied by this Court in a Resolution dated October 9,
2001. The Decision became final and executory on November 9, 2001. 
After the aforementioned arrests, the PAO filed with this Court an Urgent Motion to Reopen the Case with
Leave of Court. The Supreme Court granted it.
ISSUE BEFORE THE SUPREME COURT:
Whether or not the exempting circumstance of uncontrollable fear should be considered in favor of Delos Reyes
HELD:
Delos Reyes, who was still at-large during the first trial, was found guilty at the conclusion of the retrial.
Said accused claims that when "TAT A" and "JOJO" poked a gun at him and was told not to leave and not to
report to the police, he acted under the "compulsion of an irresistible force, hence, one of the exempting
circumstances under Article 12, paragraph 5 of the Revised Penal Code. The Court begs to disagree. DELOS
REYES testified that even before August 10, 1998, he knows already TATA and JOJO because they went to the
house of his Ninang together with Pedro Mabansag for three (3) times. Since they all know each other, then the
court cannot comprehend why TATA and JOJO still need to poke a gun at DELOS REYES and threatened him.
This is only a last-ditch effort of said accused to deny any participation in the conspiracy in kidnapping the two
(2) victims. As could clearly be gleaned from the testimony, DELOS REYES made inconsistent and improbable
statements. The Court also observed the demeanor of said accused when he testified and he is obviously lying
[through] his teeth. Manifest falsehood and discrepancies in the witnesses' testimony seriously impair their
probative value and cast serious doubts on their credibility.

In People v. Dansal, this Court held that a person invoking the exempting circumstance of compulsion due to
irresistible force admits in effect the commission of a punishable act, and must therefore prove the exempting
circumstance by clear and convincing evidence. Specifically: He must show that the irresistible force reduced
him to a mere instrument that acted not only without will but also against his will. The compulsion must be of
such character as to leave the accused no opportunity to defend himself or to escape.

The duress, force, fear or intimidation must be present, imminent and impending; and it must be of such a
nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. A threat
of future injury is not enough. A speculative, fanciful or remote fear, even fear of future injury, is insufficient.

This Court finds it hard to believe that a person who accidentally discovers kidnap victims would be held at
gunpoint by the kidnappers to guard said victims; or that a mastermind of a kidnapping syndicate, instead of
conducting his fighting cock selling activities in the regular meeting place, would invite a recent affiliate to the
place where he is holding prisoners; or that Delos Reyes did not find it unusual to see a woman with her hands
tied.

In all, we find no reason to doubt that Delos Reyes was part of the plan to abduct and detain Co and Manaysay.
 G.R. No. 168051             September 27, 2006

PEOPLE OF THE PHILIPPINES

vs.
HONORATO C. BELTRAN, JR.

WHERE: The MURDER happened at Velasquez Road, Brgy. Sta. Rita, Batangas City, Philippines

FACTS:

On 3 November 1999, appellant was indicted in an Information for Murder allegedly committed as follows:

That on or about October 25, 1999 at around 10:00 o'clock in the evening at Velasquez Road, Brgy. Sta. Rita,
Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, while
armed with a bolo, a deadly weapon, with intent to kill and with the qualifying circumstance of treachery, did
then and there, willfully, unlawfully and feloniously attack, assault and hack with the said bolo, suddenly and
without warning one Norman Concepcion y Habla while the latter was unarmed and completely defenseless,
thereby hitting him on the different parts of his body, which directly caused the victim's death.

Witnesses of the prosecution

Ever D. Sales (Ever) was a resident of Velasquez Subdivision, Barangay Sta. Rita, Batangas City.

Ever testified that on 25 October 1999, at about 10:00 in the evening, he left his workplace and proceeded home
using his bicycle. While traversing the Velasquez Road, he saw appellant holding a bolo and standing in front of
his house situated at the side of Velasquez Road. On the opposite side of the same road, he saw Norman H.
Concepcion (Norman) standing in front of an automobile repair shop. Minutes later, he saw appellant, from a
distance of six meters, stalking Norman who was then walking near the automobile shop. Appellant approached
Norman, and, without a warning, hacked him with a bolo. Norman tried to avoid the blow by moving
backwards and shielding his face with his left arm. However, Norman's left hand was hit and wounded by the
bolo. When Norman turned around and ran, appellant hacked him at the back causing him to fall down on a
grassy area. Appellant repeatedly hacked Norman with a bolo.

Rolando G. Dalisay (Rolando) is a resident of Velasquez Subdivision, Barangay Sta. Rita, Batangas City.

Rolando supported the testimony of Ever by stating that on 25 October 1999, at around 10:00 in the evening, he
was walking along Velasquez Road to buy some medicines when, at a distance of about 15 meters, he saw
appellant hacking Norman with a bolo. He noticed that when Norman fell on the ground, appellant continued
his onslaught by relentlessly hacking the former. Further, he stated that he personally knows appellant as the
latter was a former employee in his carpentry business. He also personally knew Norman since the latter was a
relative of his wife. Lastly, he testified that appellant and Norman had a previous quarrel which, however, was
subsequently settled in their barangay office.

Contentions of the defense

Appellant admitted that he hacked Norman with a bolo but insisted that he did the same in self-defense. He
narrated that on 25 October 1999, at about 10:00 in the evening, he and his mother were resting inside their
house when suddenly, he heard Norman shouting and insulting him outside their house and challenging him to a
fight. When he came out of the house, he noticed that Norman was accompanied by several unidentified
persons. Thereafter, he tried to pacify Norman but the latter slapped the back of his head and pulled out an ice
pick from his pocket. He retreated and looked for something to defend himself. He found a bolo near a tamarind
tree in front of their house and took the same. When Norman was about to enter appellant's house, the latter
hacked him with the bolo. Norman tried to avoid the blow but the same hit his left arm. Appellant lost grip of
the bolo and the same fell on the ground. While appellant was reaching for the bolo, Norman grabbed his head
and tried to stab him with the ice-pick. Appellant, however, eluded the counter-attack but he sustained a minor
wound on the forehead. Upon gaining control of the scuffle, appellant took the bolo and hacked Norman four
consecutive times, most of them landed on the head. When appellant noticed that Norman was no longer
moving, he fled therein and went to his brother, Sherman Beltran, in Bauan, Batangas, where he stayed that
same night and hid therein the bolo. The next day, he went to his sister's house in Lipa City. Later that day, he
went to the Granja Hospital, also in Lipa City, for treatment of his wound on the forehead.

Dr. Luisito D. Briones testified that he treated appellant on the morning of 26 October 1999 at Granja Hospital
in Lipa City for a lacerated wound on the forehead. He also claimed that the wound was possibly caused by a
knife and that it was already on the healing stage. He also issued a medical certificate attesting to the same.
PRIOR DECISIONS OF THE COURTS:

The RTC of Pallocan, Batangas City sentenced the appellant to suffer the penalty of reclusion perpetua for the
crime of murder. The appellant then filed his Appellant's Brief with this Court assailing the Decision of the
RTC. This Court transferred the instant case to the Court of Appeals for disposition. The Court of Appeals
promulgated its Decision affirming with modifications the assailed RTC Decision. Aside from reducing the
amount of actual damages awarded by the RTC, it also ordered appellant to pay the heirs of Norman an amount
of P50,000.00 as civil indemnity. 

ISSUES BEFORE THE SUPREME COURT

(1) Whether or not the trial court gravely erred in considering the qualifying circumstance of treachery
despite the prosecution's failure to establish the same beyond reasonable doubt.

(2) Whether or not the trial court erred in not considering in his favor the mitigating circumstances of
sufficient provocation on the part of the offended party which immediately preceded the act and
voluntary surrender.

HELD:

(1) Appellant contended that there was no treachery that qualified his act to murder in the absence of
direct evidence showing that his attack on Norman was sudden; that Norman was not deprived of an
opportunity to defend himself; and that appellant did not employ treachery to insure the execution of
the crime. Appellant's contention is bereft of merit.

Treachery is a sudden and unexpected attack under circumstances that render the victim unable and
unprepared to defend himself by reason of the suddenness and severity of the attack. It is an aggravating
circumstance that qualifies the killing of a person to murder. In the case at bar, treachery was alleged in
the Information against appellant. Moreover, all the essential elements/conditions of treachery were
established and proven during the trial. The suddenness and unexpectedness of the appellant's attack
rendered Norman defenseless, vulnerable and without means of escape. Appellant's use of nighttime and
a deadly bolo, as well as the sudden attack and repeated hackings on the vital portions of Norman's
body, were especially adopted by him to immediately cripple Norman and prevent him from retaliating
or escaping. Considering that Norman was alone and unarmed, there was absolutely no way for him to
defend himself or escape. Further, the fact that Norman sustained several fatal wounds while appellant
allegedly sustained a single superficial wound on his forehead shows that Norman was not able to
retaliate or defend himself. Given the foregoing, there is no doubt in our minds that appellant intended
and was determined to kill Norman.

(2) Appellant argued that if his plea of self-defense cannot be considered, he is still entitled to the
mitigating circumstances of sufficient provocation on the part of the offended party and voluntary
surrender under Article 13 paragraphs (4) and (7) of the Revised Penal Code, respectively.

Norman did not in any way provoke appellant into a fight on that fateful night. There was no
argument or physical struggle that ensued between them shortly before appellant hacked Norman
with a bolo. Norman was innocently walking along the road when, all of a sudden, appellant
surfaced and hacked him in rapid succession. The alleged altercation between the two occurred
much earlier (22 October 1999) as to reasonably and sufficiently incite the appellant to act the way
he did. In the absence of sufficient provocation on the part of the offended party, appellant's
assertion of mitigating circumstance cannot be sustained. Moreover, and more
importantly, this ordinary mitigating circumstance cannot offset the qualifying aggravating
circumstance of treachery which is present in the instant case.

Likewise, appellant is not entitled to the mitigating circumstance of voluntary surrender. Article 13,
paragraph (7) of the Revised Penal Code states that the offender's criminal liability may be mitigated
if he voluntarily surrendered to a person in authority or his agents. Accordingly, the essential
elements of voluntary surrender are: (1) that the offender had not been actually arrested or
apprehended; (2) that the surrender was voluntary and spontaneous; and (3) that the offender
surrendered himself to a person in authority or his agent. Appellant was already apprehended for the
hacking incident by the barangay officials of Lipa City just before he was turned over to the police
by a certain Tomas Dimacuha. Assuming that appellant had indeed surrendered to the authorities, the
same was not made spontaneously. Immediately after the hacking incident, appellant, instead of
proceeding to the barangay or police, went to his brother, Sherman Beltran, in Bauan, Batangas, and
the next day, to his sister in Lipa City. It took him three long days to surrender to the police
authorities. Moreover, the flight of appellant and his act of hiding until he was apprehended by the
barangay officials are circumstances highly inconsistent with the spontaneity that characterizes the
mitigating circumstance of voluntary surrender.
 G.R. No. 193085 November 29, 2017

PETRONILO NAPONE, JR. and EDGAR NAPONE

vs.
PEOPLE OF THE PHILIPPINES

WHERE: The HOMICIDE occurred at Barangay Mabunga, Municipality of Baungon, Province of Bukidnon

FACTS:

Junior and Edgar, together with their father, Petronilo Napone, Sr., were charged with the crime of murder for
the death of Salvador Espelita under an information, dated 13 November 1992. The pertinent facts are as
follows:

On 22 September 1992, at about 8:00 o'clock in the evening, at Barangay Mabunga, Municipality of Baungon,
Province of Bukidnon, Salvador and his son, Robert Espelita arrived at Janioso's house calling out for help.
When Janioso came out of her house, she saw Salvador whose forehead was oozing with blood, and Calib
Napone (Calib) likewise bloodied on the face, mud-laden, and trying to extricate himself from Salvador who
held him by the back collar of his shirt. Calib is the son of Senior and the brother of Junior and Edgar. When
Janioso asked what happened, Salvador replied that Calib waylaid him and struck him with an iron bar while he
and Robert were on their way home from their farm. Salvador turned over to Janioso the iron bar which he
allegedly wrested from Calib. Thereafter, Janioso directed one of her employees to find a vehicle to be used to
bring Salvador and Calib to the hospital. Janioso was Salvador's balae.

After a while, the Napones arrived in a vehicle. To avoid further conflict, Janioso pulled Salvador inside her
house. Unfortunately, Senior followed them and immediately hacked Salvador from behind using a borak, a big
bolo ordinarily used for chopping wood, hitting Salvador at the back of his head. Salvador, in retaliation, also
hacked Senior. Meanwhile, Edgar and Junior also alighted from the vehicle. Edgar threw a stone the size of a
fist at Salvador. Junior then shot Salvador three (3) times with a small firearm, hitting the latter on the chest
which caused him to fall. Janioso immediately rushed to Salvador's aid. While she was trying to lift Salvador,
she saw Junior running away with the gun. She no longer took notice of Edgar and Senior as her concern was to
bring Salvador to the hospital. At the hospital, Salvador was pronounced dead.

The post-mortem findings on Salvador revealed that he sustained four (4) hack wounds on the left side of his
head and a gunshot wound on his chest. Dr. Vacalares, the medico-legal officer who conducted the autopsy,
concluded that the cause of death was the perforation of the left ventricule due to gunshot wound, which
necessarily proved to be the fatal wound. Dr. Vacalares also took the witness stand where he elaborated that the
bullet perforated Salvador's left ventricule resulting in his death in less than ten (10) minutes. As regards the
hack wounds, Dr. Vacalares stated that they were caused by a sharp bladed instrument. However, he did not
state whether these hack wounds were fatal or not.

On 4 May 1993, the Napones were arraigned and pleaded not guilty. Trial ensued. On 17 January 2005, the trial
court ordered the dismissal of the case against Senior due to his death on 8 October 2003, a month after he
completed his testimony.

The petitioners interpose self-defense and defense of relatives. They insist that the actions they committed and
which resulted in Salvador's death were necessary and reasonable under the circumstances to repel the latter's
unlawful aggression towards them and their father. That upon arriving at Janioso's place, the Napones saw Calib
bloodied and being held by the Espelitas who, upon seeing them coming, dropped Calib, who was then prostrate
and unconscious. The Espelitas then went inside the fenced premises of Janioso's house. However, when Senior
attempted to lift Calib from the ground, Salvador rushed towards him and hacked him with a bolo multiple
times. Senior, unable to retaliate because he was lifting Calib, parried the attacks with his left hand but was
unsuccessful. His ring and middle fingers were severed from his left hand and his forehead was wounded.
Thereafter, Senior fell to the ground and lost consciousness.

PRIOR DECISIONS OF THE COURTS:

The RTC of Manolo Fortich, Bukidnon found the appellants guilty beyond reasonable doubt of the crime of
homicide, both as principals.

The CA affirmed the RTC decision with modification that appellants Petronilo Napone, Jr. and Edgar Napone
are found GUILTY beyond reasonable doubt of HOMICIDE, as PRINCIPAL and ACCOMPLICE,
respectively.
ISSUES BEFORE THE SUPREME COURT:

(1) Whether or not the trial and appellate courts erred when they ruled that the petitioners did not act in self-
defense and/or defense of relatives

(2) Whether or not the trial and appellate courts erred when they did not appreciate the mitigating
circumstance of vindication for a grave offense and voluntary surrender (on Junior’s part)

HELD:

(1) After a careful examination of the records, the Court finds that the defense failed to discharge the burden of
proving that the petitioners acted in self-defense or defense of relatives. The defense would have this Court
believe that the Napones proceeded to the place of Janioso without any malice in mind and with the only goal of
rescuing Calib. To refute the accusations against them, they painted a picture of Salvador mercilessly attacking
Senior who merely wanted to carry his son who was then lying on the ground and covered with blood. They
maintain that the petitioners were forced to retaliate against Salvador who was unlawfully attacking their father.

The Court is not persuaded.

The version of the defense may be amusing, yet it still pales in comparison in terms of credibility when faced
with the testimonies of the eyewitnesses Janioso and Sadaya and the post-mortem report by Dr. Vacalares.
Needless to state, the Court concurs with the findings of the trial and appellate courts.

Clearly, Senior armed himself with a bolo and was ready to use it against the Espelitas making them his specific
targets because of his belief that they were his son's assailants. At this juncture, it is well to emphasize that the
fact that Calib was seen lying on the ground is not the unlawful aggression required under the law. It was
established during trial that any attack on the person of Calib by the Espelitas, if there was any, had already
ceased at the time the Napones arrived. No actual, sudden, and unexpected attack or imminent danger on the life
or limb of Calib, therefore, could justify Senior's attack on Salvador.

Coming now to the actual shooting of Salvador, both Janioso and Sadaya's testimonies were positive and
categorical with respect to its material aspects.  

(2) The acts of the Napones after they were informed that Calib was dragged by the Espelitas were more
consistently driven by revenge rather than mere impulsive reaction. Senior even got hold of his weapon first
before going to the place where his son was reportedly harmed. Thus, the extenuating circumstance of passion
or obfuscation could not be appreciated in petitioners' favor.

Nevertheless, the circumstances surrounding the unfortunate incident merit the appreciation of the mitigating
circumstance of vindication for a grave offense. For such to be credited, the following requisites must be
satisfied: (1) that there be a grave offense done to the one committing the felony, his spouse, ascendants,
descendants, legitimate, natural or adopted brothers or sisters, or relatives by affinity within the same degrees;
and (2) that the felony is committed in vindication of such grave offense. Although it was not witnessed by the
Napones, the attack on Calib which put his life at risk must have infuriated them. The belief that the Espelitas
were responsible for the grave injuries sustained by a member of their family created rage in their minds which
clouded their judgment. Upon seeing Calib bloody, prostrate on the ground and possibly clinging for dear life,
the Napones were filled with resentment that resulted in the assault on Salvador. Their acts, therefore, were
committed in vindication of a grave offense.

The CA also erred when it failed to appreciate voluntary surrender in favor of Junior. In denying him the benefit
of this mitigating circumstance, the appellate court reasoned that no evidence on record other than Junior's own
testimony was offered to prove that he voluntarily surrendered to the authorities.

In People v. Malabago, we held that where the accused testified that he voluntarily surrendered to the police
and the prosecution did not dispute such claim, the mitigating circumstance should be appreciated in his favor.
A perusal of the record revealed that the prosecution did not dispute Junior's claim that he surrendered to the
police authorities in Baungon, Bukidnon, on 23 June 1992. Hence, the mitigating circumstance of voluntary
surrender must be credited in his favor.
 G.R. No. 139542      June 21, 2001

PEOPLE OF THE PHILIPPINES

vs.
INOCENCIO GONZALEZ, JR.

WHERE: The crimes of HOMICIDE and SLIGHT PHYSICAL INJURIES were committed at Garden of
Remembrance within the Loyola Memorial Park in Marikina. 

FACTS:

In the afternoon of October 31, 1998 at about 2:30 p.m. both the families of the private complainant Noel
Andres and that of the accused-appellant Inocencio Gonzalez were on their way to the exit of the Loyola
Memorial Park. The appellant was driving a white Isuzu Esteem with his grandson and three housemaids, while
the private complainant was driving a maroon Toyota FX with his pregnant wife Feliber Andres, his two-year
old son, Kenneth, his nephew Kevin and his sister-in-law, Francar Valdez. At the intersection near the Garden
of Remembrance, while the accused-appellant Gonzalez was turning left towards the exit and the complainant
Noel Andres was headed straight along the road to the exit their two vehicles almost collided. Noel Andres was
able to timely step on the brakes. The appellant continued driving along his way while Noel Andres drove
behind the appellant’s vehicle for some time and cut him off when he found the opportunity to do so. Noel
Andres then got out of his vehicle and knocked on the appellant’s car window.

An altercation then ensued between Noel Andres and the respondent. Dino, the son of the respondent, also
confronted Andres. Andres testified that he felt threatened and so he immediately boarded his vehicle, sat at the
driver’s seat, closed the door, and partially opened the car window just wide enough to talk back to appellant’s
son, Dino. Suddenly, one of his passengers said "Binaril kami". He turned to his wife Feliber Andres and saw
her bloodied and unconscious. He turned around and saw his son Kenneth and nephew Kevin were also
wounded. Andres admitted in court that he and Dino were shouting at each other so that he did not hear the
shot. Andres then got out of his vehicle to warn the appellant not to flee. He then took the wounded members of
his family to the exit where there was an ambulance standing by. The three were then taken to the Sta. Monica
Hospital and were later transferred to the Quezon City Medical Center.

The defense contends that the appellant’s daughter Trisha at the scene, walked past the arguing Dino and
Andres, and pushed the appellant away. She hugged her father and, in the process, held his hand holding the
gun. The appellant tried to free his hand and with Trisha’s substantial body weight pushing against him the
appellant lost his balance and the gun accidentally fired. The accused stated that he did not know he shot
somebody until the private complainant’s sister-in-law, Francar Valdez, got out of the vehicle carrying a
bloodied small boy. The defense claims that the appellant did not try to flee and even told the complainant’s
sister-in-law to take the wounded to the hospital.

PRIOR DECISION OF THE COURT

The RTC of Marikina City declared the respondent guilt beyond reasonable doubt of the complex crime of
Murder with Double Frustrated Murder and Attempted Murder. The trial court rendered judgement finding that
the shooting was attended by the qualifying circumstance of treachery stating that when the respondent alighted
with a drawn gun to protect his son and released all the safety measures of his gun as he fired and missed at
Noel who was then unarmed. The respondent’s use of the gun effectively accomplished the crime without risk
on the part of the offender arising from any defense coming from the offended party.

ISSUES BEFORE THE SUPREME COURT

(1) Whether or not the qualified aggravating circumstance of treachery is present in the case at bar
(2) Whether or not the trial court committed reversible error when it failed to appreciate the mitigating
circumstances of passion or obfuscation, lack of intention to commit so grave a wrong, provocation or
threat on the part of the offended party immediately preceded the act, incomplete defense of relative, and
voluntary surrender

HELD:

(1) No. The trial court’s finding that the loading of the gun, the cocking of the hammer and finally the
pulling of the trigger constitute a deliberate effort on the part of appellant to use the gun as a means of a
treacherous attack is patently erroneous.  The weapon used is not, by itself, determinative of treachery,
unless it is shown, and it is not herein shown, that the appellant deliberately used the gun to insure the
commission of the crime and to render the unarmed victim defenseless.
 It is to be noted that the kind of weapon used against an unarmed victim was not taken into
consideration in determining the attendance of treachery; it is the mode of attack employed by the
accused under the particular circumstances of a case that determines its attendance in the commission of
a crime. The Court finds that the prosecution has not discharged its burden to show that the shooting was
attended by treachery and is convinced that the crime committed for the death of Feliber Andres is
homicide.

(2) The mitigating circumstances of voluntary surrender, passion and obfuscation, incomplete defense of
a relative and lack of intent to commit so grave a wrong, pleaded by the defense, were not convincingly
proved and none can be considered in the imposition of penalties.

Voluntary surrender cannot be appreciated since a witness testified that the appellant drove away
towards the gate of the memorial park while he was questioning him after the shooting and had not Noel
Andres and onlookers blocked his path the appellant could have fled the scene of the crime.

The mitigating circumstance of passion and obfuscation is also not obtaining. For this mitigating
circumstance to be considered, it must be shown that (1) an unlawful act sufficient to produce passion
and obfuscation was committed by the intended victim; (2) that the crime was committed within a
reasonable length of time from the commission of the unlawful act that produced the obfuscation in the
accused’s mind; and that (3) "the passion and obfuscation arose from lawful sentiments and not from a
spirit of lawlessness or revenge". Noel Andres’ act of shouting at the appellant’s son, who was then a
nurse and of legal age, is not sufficient to produce passion and obfuscation as it is claimed by the
accused. Besides, the appellant’s son, Dino was shouting back at Noel Andres. It was not a case wherein
the appellant’s son appeared helpless and oppressed that the appellant lost his reason and shot at the FX
of Noel Andres. The same holds true for the appellant’s claim of provocation on the part of Noel
Andres. Provocation must be sufficient to excite a person to commit the wrong committed and that the
provocation must be commensurate to the crime committed. The sufficiency of provocation varies
according to the circumstances of the case. The aggressive behavior of Noel Andres towards the
appellant and his son may be demeaning or humiliating but it is not sufficient provocation to shoot at the
complainant’s vehicle.

The plea for the appreciation of the mitigating circumstance of incomplete defense of a relative is also
unmeritorious since the act of Andres in cursing and shouting at the appellant and his son do not amount
to an unlawful aggression against them, Dino Gonzalez. Finally, the plea for the appreciation of the
mitigating circumstance of lack of intent to commit so grave a wrong is likewise devoid of merit. This
mitigating circumstance is obtaining when there is a notable disparity between the means employed by
the accused to commit a wrong and the resulting crime committed. The intention of the accused at the
time of the commission of the crime is manifested from the weapon used, the mode of attack employed
and the injury sustained by the victim. The appellant’s use of a gun, although not deliberately sought nor
employed in the shooting, should have reasonably placed the appellant on guard of the possible
consequences of his act. The use of a gun is sufficient to produce the resulting crimes committed.
 G.R. No. 151978             July 14, 2004

ARTURO ROMERA
vs.
PEOPLE OF THE PHILIPPINES

WHERE: The stabbing incident occurred at about 7:00 o’clock in the evening, at Sitio Puntod, Barangay
Balagnan, Balingasag, Misamis Oriental

FACTS:

In the afternoon of October 4, 1998, petitioner Arturo Romera was with the victim, Roy Mangaya-ay, and five
other men namely, Eligario "Beboy" Acenas, Dennis "Bobong" Mangaya-ay, Ric Mangaya-ay, Bebing Zulueta
and Franklin Generol. They were all headed for Biasong to play volleyball. When they reached Biasong, it was
raining, so they decided to while away time at the house of Ciriaca Capil. Franklin Generol hung a string made
of cigarette foil on Bebing Zulueta’s pants and said, "There’s a monkey among us." Everybody laughed except
Roy Mangaya-ay, who got angry and chided Franklin Generol to stop lest he make enemies. Bebing Zulueta
also got angry and pointed a finger at Franklin Generol and said, "Even if you are stronger and older, if you will
be hit by my fist, you will crawl." Petitioner then stood up and warned everyone, "You all watch out in
Balaguan." He pulled Franklin Generol to join him and said, "Let’s go, there are many boastful people here."
Thereafter, petitioner and Franklin left the group.

At around 7 o’clock in the evening, the victim provoked the petitioner to a fit of anger when the latter woke him
up and thrust a bolo at him without warning as petitioner opened the door. The victim then proceeded by
hacking and destroying the bamboo wall of the petitioner’s house, and endangering the lives of his children.
These acts obfuscated the thinking and reasoning processes of the petitioner. Thereafter, an altercation then
ensued. This led to the petitioner disarming the victim, and then wounding the latter in the stomach.

After the stabbing incident, petitioner voluntarily surrendered to a certain Tibo Ramoso of the Citizen’s Armed
Force Geographical Unit (CAFGU). Ramoso accompanied petitioner to the Balingasay police station.

PRIOR DECISIONS OF THE COURTS

The RTC of Cagayan De Oro City adjudged the petitioner guilty beyond reasonable doubt of the crime of
frustrated homicide. The Court of Appeals affirmed the trial court’s judgment. It pointed out that
assuming arguendo that it was the victim who was the aggressor at the start, the unlawful aggression ceased to
exist when petitioner took possession of the bolo from the victim. Absent unlawful aggression, the justifying
circumstance of self-defense becomes unavailing.

ISSUE BEFORE THE SUPREME COURT

Whether or not the mitigating circumstances of provocation and passion or obfuscation present in this case

HELD

YES. The victim in thrusting his bolo at petitioner, threatening to kill him, and hacking the bamboo walls of his
house are, in our view, sufficient provocation to enrage any man, or stir his rage and obfuscate his thinking,
more so when the lives of his wife and children are in danger. Petitioner stabbed the victim as a result of those
provocations, and while petitioner was still in a fit of rage. In our view, there was sufficient provocation and the
circumstance of passion or obfuscation attended the commission of the offense.

But, we must stress that provocation and passion or obfuscation are not two separate mitigating circumstances.
Well-settled is the rule that if these two circumstances are based on the same facts, they should be treated
together as one mitigating circumstance. From the facts established in this case, it is clear that both
circumstances arose from the same set of facts aforementioned. Hence, they should not be treated as two
separate mitigating circumstances.

Nonetheless, we hold that since the mitigating circumstance of voluntary surrender is also present.

The penalty for frustrated homicide, pursuant to Article 50 of the Revised Penal Code, is the penalty next lower
in degree than that prescribed by law for consummated homicide. The penalty for consummated homicide
is reclusion temporal,  hence the penalty next lower in degree is prision mayor. There being two mitigating
circumstances and no aggravating circumstance, pursuant to Article 64 (5) of the Revised Penal Code, the next
lower penalty, prision correccional, is the next statutory penalty.