On September 29, 1991, at around three o’clock in the afternoon, the appellant, GREGORIO MAGALLANES, who was a "mananari" or gaffer of fighting cocks, trekked the road to the cockpit of Poblacion Sagbayan, Bohol. The appellant was in the company of several other cockfighting afficionados, among whom were Romualdo Cempron and Danilo Salpucial. While on their way, they passed by Virgilio Tapales who was drinking in the store of Umping Amores which was located on the elevated side of the road. Tapales hailed Cempron and invited him for a drink but the latter courteously refused as he was going to the cockpit. Tapales approached Cempron and conversed with him briefly. For some unknown reason, Tapales then directed his attention to the appellant who was walking a few steps behind Cempron. Tapales held the appellant by his shirt, slapped him and strangled his neck. But seeing a knife tucked in Tapales’ waist, the appellant pulled out the knife and slashed at Tapales to loosen his grip. The appellant succeeded in wounding the face and neck of Tapales who let go of the appellant and fled for his life. Insatiated, the appellant pursued Tapales and when the latter fell, the appellant stabbed him several more times before uttering the following words: "you are already dead in that case." 1 With that, the appellant stood up and rode on the motorcycle being driven by Danilo Salpucial., Later, the appellant surrendered to the police authorities of the town of Inabanga, Bohol.
For the death of Tapales, the appellant and Salpucial were charged as principal and accessory, respectively, of the crime of murder allegedly committed as follows:jgc:chanrobles.com.ph
"That on or about the 29th day of September, 1991, in the municipality of Sagbayan, province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the first above-named accused as Principal, with intent to kill and without justifiable cause, with treachery and abuse of superior strength, did then and there willfully and feloniously attack, assault and stab with the use of a sharp-pointed, sharp-edges (sic) weapon (knife) one Virgilio Tapales y Melendres hitting and injuring the vital parts of the body of the victim which resulted in the victim’s instantaneous death; that the second above-named accused, as Accessory, having knowledge of the commission of the crime of Murder, but without having participated therein either as Principal or as an Accomplice, did then and there willfully, unlawfully, feloniously and knowing (sic) take part in said crime after the commission thereof, to wit: by allowing accused Gregorio Magallanes to, and taking him on a, (sic) backside on the motorcycle which accused Danilo Salpucial was driving and operating, in order to flee from the scene of the crime; . . ." 2
During arraignment, the appellant expressed his willingness to enter a plea of guilty to the lesser offense of homicide with the mitigating circumstances of plea of guilty and voluntary surrender; Salpucial, on the other hand, pleaded not guilty to the charges against him. The prosecution refused to lower the charge from murder to homicide, hence, trial ensued after which, a decision was rendered finding the appellant guilty of the crime of murder and acquitting Salpucial on the ground that the prosecution had failed to prove his guilt beyond reasonable doubt. The dispositive portion of said decision is quoted hereunder:jgc:chanrobles.com.ph
"PREMISES CONSIDERED, the Court finds the accused Gregorio Magallanes GUILTY of the crime of Murder punished under Article 243 of the Revised Penal Code and hereby sentences him to suffer an imprisonment of RECLUSION PERPETUA with the accessories of the law and to pay the cost.
"The accused Gregorio Magallanes is further ordered to indemnify the surviving spouse Nathaline Tapales in the amount of P50,000.00 representing indemnity, P50,000.00 representing moral and exemplary damages, P31,300.00 — burial and incidental expenses relative to the death of Virgilio Tapales and P3,000.00 representing attorneys fees, in all instances, without subsidiary imprisonment in case of insolvency.chanroblesvirtual|awlibrary
"x x x
"Relative to the accused Danilo Salpucial judgment is hereby rendered ACQUITTING the aforementioned Danilo Salpucial of the crime as charged, with cost de officio.
"x x x." 3
Before us now is the appeal interposed by Gregorio Magallanes where he invokes the justifying circumstance of self-defense in his favor, and contends, in the alternative, that he should be convicted of the crime of homicide only and not murder.
Anent the claim of self-defense, we reiterate herein the time honored doctrine that although it is a cardinal principle in criminal law that the prosecution has the burden of proving the guilt of the accused, the rule is reversed where the accused admits committing the crime but only in defense of oneself. In the latter case, the burden is shifted to the accused who must prove clearly and convincingly the following elements of self-defense: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself. 4
The appellant asseverates that he was justified in stabbing Tapales as he was merely defending himself from the former’s unlawful and unprovoked aggression. But the prosecution witnesses are one in testifying that it was the appellant who mercilessly pursued the already wounded Tapales, and when the latter fell to the ground, inflicted several more stab wounds on his person including a fatal blow to his neck.
Engineer Sabino Tubal testified as follows:jgc:chanrobles.com.ph
"Q. When you saw the two, Gregorio Magallanes and Virgilio Tapales, what did you notice?
A. I saw Virgilio Tapales already bleeding and Gregorio Magallanes bringing a knife.
x x x
COURT:chanrob1es virtual 1aw library
Did you actually see the stabbing incident?
A. Yes, your Honor.
COURT:chanrob1es virtual 1aw library
Who stabbed the victim?
A. It was Gregorio Magallanes who stabbed the victim.
Q. When you say victim, you are referring to Virgilio Tapales?
A. Yes, sir.
Q. Now you said that it was Gregorio Magallanes who stabbed the victim, why did not the victim run?
A. He ran but he was chased by Gregorio Magallanes.
Q. When Virgilio Tapales fell what happened next?
A. This Gregorio Magallanes was on top of the victim and then Gregorio Magallanes stabbed the throat of the victim.
Q. How far were you from the place where Virgilio Tapales fell and according to you Magallanes rode on top of the victim and stabbed his neck?
A. Almost two meters distance.
Q. Did you hear any word from Gregorio Magallanes at that time?
A. When Gregorio Magallanes already stood up that was the time he said saying (sic), ‘You are already dead in that case." 5
The foregoing was corroborated by another witness, Esterlita Amodia-Tubal:jgc:chanrobles.com.ph
"Q. Please tell the court briefly the first thing that you saw?
A. At that time I and my helper were doing some gardening work infront (sic) of our house and all of a sudden my helper called me this way: ‘Nang Neng, what is that?’ And I turned my back and saw Virgilio Tapales who was chased by Gregorio Magallanes.
Q. How far were you from or rather to Magallanes when the latter chased Virgilio Tapales?
A. More or less eight meters.
Q. Was Virgilio Tapales over run (sic) by Magallanes in the chase?
A. I saw that Gregorio Magallanes stabbed Virgilio Tapales.
Q. How many times did you see Magallanes stabbed (sic) Virgilio Tapales?
A. One time.
Q. And what happen (sic) to Virgilio Tapales?
A. Virgilio Tapales was at that time still running being chased by Magallanes. There is a fence and at the end of that fence there was a guava tree. It so happen that this Virgilio Tapales run towards that tree and this Gregorio Magallanes stabbed and slashed the neck of Virgilio Tapales at the upper portion of the heart just above the left side of the face and at that time I had my children with me so I run to our store to put my children in safe condition. When I went back to the store I saw my husband coming from our ricemill and because I was afraid that my husband would be stabbed because I really saw Gregorio Magallanes slashed (sic) the neck of Virgilio Tapales I shouted to my husband that he might be stabbed.
COURT:chanrob1es virtual 1aw library
Which happened first the stabbing or the slashing?
A. The stabbing your Honor followed by slashing on the left face and neck." 6
Clearly, whatever act of aggression that was initiated by Tapales against the appellant had already ceased as demonstrated by the fact that Tapales was running away from the appellant. The tables were turned when the appellant chased Tapales with the obvious intent of stabbing him. At this juncture, the appellant had assumed the role of aggressor, thus, his claim of self-defense cannot obviously prosper. In People v. Tampon 7 we ruled that:jgc:chanrobles.com.ph
"Even granting arguendo that the initial act of aggression came from Entellano (the victim) as claimed by the appellant, we still cannot sustain his plea of self-defense. As testified by the appellant, he grappled with Entellano for the knife and was able to take possession of the same. At this point, it was no longer necessary for appellant to stab Entellano in order to protect himself. His subsequent act of stabbing the now unarmed Entellano belies his claim that he acted in self-preservation and indicates nothing more than a perverse desire to kill. Thus, this Court held in the case of People v. So, that ‘[a]fter appellant successfully wrested the knife from Tuquero, the unlawful aggression has ceased, the one making the defense has no more right to kill or even wound the former aggressor.’" 8
Another factor which militates against the appellant’s claim of self-defense is that nature and number of wounds suffered by Tapales. Dr. Pancracio Garay, the Rural Health Physician who examined Tapales’ dead body, testified that the same sustained seven (7) stab wounds in all caused by a sharp bladed weapon. 9 And it is an oft-repeated rule that the presence of a large number of wounds on the part of the victim negates self-defense and instead, indicates a determined effort to kill the victim. 10 The appellant, however, seeks exception to this rule by pointing out the superficial nature of majority of the wounds inflicted on Tapales, and the fact that of the seven (7) wounds, only one (1) was fatal enough to cause his death. We disagree.
According to the testimony of Dr. Garay, Tapales suffered the following injuries:jgc:chanrobles.com.ph
"Q. Will you please read into the records the injuries that you found?
A. First we have incised wound 10 to 14 cms. 10 x 4 cms. located at the base of the skull extending from the posterior portion of the right ear down to the nape.
Q. Will you please point to the court using yourself as the person examined that location of the wound.
INTERPRETER:chanrob1es virtual 1aw library
Witness pointing to the base of the skull up to the nape of the neck. Witness showing it to the court.
Q. What is the second injury you found in the person of Virgilio Tapales?
A. Second is incised wound about 20 cms. by 7 cms. extending from the occipietal (sic) area of the head passing the left ear cutting it into halves.
COURT:chanrob1es virtual 1aw library
In layman’s language how do you call that?
x x x
Q. What other injuries did you find?
A. 7 cm by 3 cm by 6 cm stabbed (sic) wound at the anterior area of the neck at the superior border of the manobrium.
x x x
Q. What was the fourth injury you found?
A. Stabbed (sic) wound 5 x 1 x 5 cm. penetrating the torasic (sic) area hitting the spinal column.
Q. Where is that?
A. It is found at the back.
x x x
Q. What was the next wound?
A. Next is incised wound measuring 14 x 2 cms. about 1 to 2 cms. just above the left scapula.
x x x
Q. Can you tell the court, considering the location of the wound where the person who wounded Tapales must have been position (sic) in relation to Tapales?
A. Must have been at the back also.
x x x
Q. Anymore injury?
A. There is another incised wound about 6 cms. in length at the left palmar area.
INTERPRETER:chanrob1es virtual 1aw library
Witness is pointing to the lower portion of his left palm.
x x x
Q. Any other wound?
A. Another is 2 cms. length incised wound at the right palm.
x x x
Q. In other words deceased Virgilio Tapales sustained six wounds?
A. Seven wounds." 11
Of the seven (7) wounds, five (5) were located in the neck area suggesting that the appellant struck at Tapales with resolve to cause serious if not mortal damage to Tapales’ person. There certainly was no necessity to inflict such wounds upon Tapales especially in view of the fact that the latter was not even armed. The appellant’s theory of self-defense is therefore overthrown by the hard reality that the alleged aggressor — the deceased in this case — sustained seven (7) stab wounds in the hands of the appellant while failing to inflict upon the appellant even a minor injury as token of his alleged belligerence and aggression. 12
As an alternative defense, the appellant asseverates that the killing of Tapales was not attended by treachery which would qualify it to murder, hence, he should have been convicted of the crime of homicide only. The appellant bewails the finding of treachery by the RTC "despite the fact that the initial unlawful aggression was started by the deceased victim, Virgilio Tapales, at the middle of the road in broad daylight." 13 On the other hand, the prosecution insists that the killing was treacherous because it was perpetrated while the defenseless Tapales was running away from the appellant, thereby giving the latter opportunity to stab Tapales at the back without warning. 14 On the issue we find for the Appellant
"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." 15 Thus, for treachery or alevosia to be appreciated as a qualifying circumstance, the prosecution must establish the concurrence of two (2) conditions: (a) that at the time of the attack, the victim was not in a position to defend himself; and (b) that the offender consciously adopted the particular means, method or form of attack employed by him 16 The latter condition is immediately negated by the fact that the meeting between the appellant and Tapales was by chance. We have held that:jgc:chanrobles.com.ph
". . . where the meeting between the accused and the victim was casual and the attack was done impulsively, there is no treachery even if the attack was sudden and unexpected and while the victim was running away with his back towards the accused. As has been aptly observed the accused could not have made preparations for the attack, . . .; and the means, method and form thereof could not therefore have been thought of by the accused, because the attack was impulsively done. 17
Treachery cannot also be presumed from the mere suddenness of the attack or from the fact that the victim was stabbed with his back towards the appellant. In point is the following pronouncement we made in People v. Escoto:jgc:chanrobles.com.ph
"We can not presume that treachery was present merely from the fact that the attack was sudden. The suddenness of an attack, does not itself, suffice to support a finding of alevosia, even if the purpose was to kill, so long as the decision was made all of a sudden and the victim’s helpless position was accidental. In fact from the reaction of Robert in running away from the Escoto brothers the moment he saw them, we can reasonably conclude that he was not completely unaware that herein appellant and Willie posed a danger to him and this necessarily put him on guard, with the opportunity to prevent or repel a possible assault." 18
This is particularly true in the instant case where Tapales initiated the unlawful aggression against the appellant and should therefore have been forewarned of the possibility of retaliation from him.
Furthermore, although Tapales sustained seven (7) stab wounds, some of them located at his back, we can not infer from this physical evidence alone that treachery was initially present in the case at bar. 19 And it is a fundamental rule of long standing that for treachery to be appreciated, the circumstance must be present at the inception of the attack, and if absent and the attack is continuous, treachery if present at a subsequent stage is not to be considered. 20
Absent the qualifying circumstance of treachery, we therefore find the appellant guilty only of the crime of homicide. Moreover, a careful scrutiny of the records of this case reveals that the trial court had erroneously failed to appreciate in mitigation of the appellant’s penalty the circumstance of voluntary surrender and plea of guilty.cralawnad
Felix Estillore, a member of the Philippine National Police (PNP), and a witness for the prosecution had in fact testified that the appellant surrendered to the Police of Inabanga, Bohol after the stabbing incident. 21 The fact that the appellant chose to surrender to the police authorities of Inabanga and not Sagbayan where the crime happened is not to be taken against him. He fled Sagbayan not to hide from the police authorities but to evade retaliation from the relatives of the deceased. Besides, the law does not require that the perpetrator of an offense to be entitled to the mitigating circumstance of voluntary surrender, must give himself up to the authorities in the municipality where the offense was committed. All that the law requires is for the offender to surrender to the authorities to save the government the trouble and the expense of looking for him in order to arrest him. 22
Finally, on record is the appellant’s willingness to enter a plea of guilty but to the lesser crime of homicide. It only remains to consider briefly whether the appellant’s plea of guilty in the form it was entered constitutes a voluntary confession of guilt before the court as defined in paragraph 7 of Article 13 of the Revised Penal Code. 23 In People v. Yturriaga 24 where the accused who was charged with murder entered a qualified plea of guilty by claiming that the alleged qualifying circumstance of evident premeditation did not exist, we said that:jgc:chanrobles.com.ph
"Although the confession was qualified and introduction of evidence became necessary, the qualification did not deny the defendant’s guilt and, what is more, was subsequently fully justified. It was not the defendant’s fault that aggravating circumstances were erroneously alleged in the information and mitigating circumstances omitted therefrom. If such qualification could deprive the accused of the benefit of plea of guilty, then the prosecution could nullify this mitigating circumstance by counteracting it with unfounded allegations of aggravating circumstances."25cralaw:red
WHEREFORE, the judgment appealed from is hereby MODIFIED by convicting the appellant Gregorio Magallanes of the crime of homicide only with the mitigating circumstances of voluntary surrender and plea of guilty in his favor, and imposing upon him an indeterminate sentence of four (4) years, two (2) months and one (1) day of prision correccional as minimum to ten (10) years of prision mayor as maximum. In all other respects, the judgment of the court a quo is AFFIRMED.
, Davide, Jr., Melo and Panganiban, JJ.
1. TSN, Sabino Tubal, December 23, 1994, p. 4.
2. INFORMATION; Rollo, pp. 4-5.
3. DECISION, promulgated on March 24, 1993, p. 9; Rollo, p. 72.
4. People v. Tampon, G.R. No. 105583, July 5, 1996; People v. Ganzagan, 247 SCRA 220 ; People v. Ronquillo, 247 SCRA 793 .
5. TSN, Sabino Tubal, supra, pp. 3-4.
6. TSN, Esterlita Amodia-Tubal, March 11, 1993, pp. 16-18.
9. TSN, Dr. Pancracio Garay, December 21, 1992, pp. 2-9.
10. People v. Rivero, 242 SCRA 354, 360 ; People v. Camahalan, 241 SCRA 558 ; People v. Daquipil, 240 SCRA 314 ; People v. Nuestro, 240 SCRA 221 .
11. TSN, Garay, supra, pp. 3-7.
12. People v. Camahalan, supra, p. 565; People v. Daquipil, supra, p. 330.
13. Brief of the Appellant, p. 4; Rollo, p. 60.
14. APPELLEE’S BRIEF, p. 24; Rollo, p. 108b.
15. Article 14, paragraph 16 of the Revised Penal Code.
16. People v. Maturgo, Sr., 248 SCRA 519, 530 ; People v. Ledesma, 250 SCRA 166 .
17. People v. Escoto, 244 SCRA 87, 100 ; People v. Real, 242 SCRA 671 .
18. People v. Escoto, id.
19. Id., People v. Maturgo, Sr., supra, p. 531; People v. Ablao, 183 SCRA 658 .
20. People v. Escoto, id.; U .S. v. Balagtas, 19 Phil. 164 ; People v. Cañete, 44 Phil. 478 .
21. DECISION, supra, p. 3; Rollo, p. 9.
22. People v. Diva, 23 SCRA 332, 341 .
23. People v. Yturriaga, 86 Phil. 534, 539 .