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SECOND DIVISION

G.R. No. 101798 May 10, 1993

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MARIO RIVERA, Accused-Appellant.

REGALADO, J.:

An evening intended to be a relaxing night out between two friends, herein accused-appellant Mario Rivera and his erstwhile co-accused Venancio Mercado, Jr., provided a tragic tableau or the senseless killing of an unwitting victim and the conviction of appellant for murder. The case did not even have the saving grace of the inscrutability of fate; it was but another mundane episode involving the admixture of bravado and alcohol.chanroblesvirtualawlibrarychanrobles virtual law library

Appellant Mario Rivera and Venancio Mercado, Jr. were charged before the Regional Trial Court, Branch VIII at Aparri, Cagayan, with the crime of murder in an information alleging the commission thereof as follows :

That on or about October 19, 1989 in the municipality of Aparri, province of Cagayan, and within the jurisdiction of his Honorable Court, the said accused, Mario Rivera and Venancio Mercado, Jr. armed with a sharp pointed instrument, conspiring together and helping each other, with intent to kill, with evident premeditation and with treachery, did then and there wilfully, unlawfully and feloniously assault, attack and stab one Remely Padios, inflicting upon him wounds on his body which caused his death.chanroblesvirtualawlibrarychanrobles virtual law library

That the accused Venacio Mercado, Jr. is a recidivist, he having been previously convicted by final judgment of Homicide in June, 1987, by this Honorable Court (Regional Trial Court, Aparri), Branch IX, in Criminal Case No. IX-498, entitled 'People of the Philippines versus Venanio Mercado, Jr. for Homicide, which crime is embraced in the same title of the Revised Penal Code. ¹chanrobles virtual law library

Both accused were arrested and, when arraigned, entered a plea of no guilty. After due trial, the lower court found both accused guilty as charged and sentenced them to suffer the penalty of reclusion perpetua, with all the accessory penalties provided by law. They were likewise ordered to pay jointly and severally to the heirs of the deceased the sum of (1) P50,000.00 by way of death indemnity; (2) P17,128.00 for actual funeral and other incidental expenses; (3) P20,000.00 by way of moral damages; and (4) P15,000.00 by way of exemplary damages, or a grand total of P102,128.00, without subsidiary imprisonment in case of insolvency. The court further declared that, in the service of their sentence, they were entitled to full credit or the period of their preventive imprisonment, provided they had complied with the requirements of Article 29 of the Revised Penal Code, as amended. ²chanrobles virtual law library

A motion for reconsideration was filed by accused Venancio Mercado, Jr., while accused Mario Rivera filed a notice of appeal. The court a quo amended decision dated July 15, 1991, acquitted Venancio Mercado, Jr. on the basis of reasonable doubt since appellant Rivera admitted sole liability for the killing and denied Mercado's participation therein. ³ The subject decision convicting herein appellant is now the subject of our appellate review.chanroblesvirtualawlibrarychanrobles virtual law library

The principal facts of the case for the prosecution were established by lone witness Emma Rival. She testified that on October 19, 1981, at around 11:45 p.m., she took a brief respite from her work as a singer of El Gusto Restaurant and Folk House at Aparri, Cagayan and went to buy merienda at Lansi's Store located adjacent to said restaurant. On her way back to El Gusto, while she was about three steps away, she saw accused Venancio Mercado, Jr. stab Remely Padios, a security guard of said establishment, with a weapon that looked like a fan knife. Afterwards, Mercado gave said weapon to appellant Rivera who then stabbed Remely Padios two times, prompting the latter to draw his gun. Rivera pushed Padios causing him to fall down the drop his gun. Mercado and Rivera then ran away from the area. When Emma Rival went near the victim, the latter asked her to look for his gun, which she found underneath the security guard's table. She gave said gun to the manager of the restaurant, Mila Talosig, and both of them, together with a waiter of said restaurant, brought the victim to the Lycem of Aparri Hospital. ⁴chanrobles virtual law library

Expectedly, the defense gave an entirely different version of the incident. Appellant Rivera took the witness stand and testified that at about 11:00 p.m. of October 19,1989, he and Mercado were at El Gusto Resturant having a few drinks. River decided to request Emma Rival, the lady singer of said establishment, to sing a particular song. Rivera approached the stage, which was about two feet high, and whispered the title of the song to the singer. Rivera, however, was "out balanced" and his face accidentally touched Rival's face, prompting the latter to slap him. Padios, the security guard of El Gusto, grabbed River's collar and dragged him out of the restaurant. Padios then pushed him and drew his gun. While River was trying to stand up, Padios pointed his gun at him. Fearing for his life, Rivera "unconsciously" drew his knife and held that hand of Padios which was then holding a firearm. They grappled and when Rivera saw that Padios was about to fall, he released his grip and ran away. ⁵chanrobles virtual law library

In this appeal, appellant assigns two errors supposedly committed by the court a quo which can, however, be subsumed into single supposed error, that is, that the trial court erred in not giving weight and probative value to his testimony and convincing him as a consequence. ⁶ He also calls the attention of the Court to the fact that Judge Efren N. Ambrosio, who rendered the questioned decision, took over the trial of the case only after the prosecution witnesses had already testified. Appellant asserts that Judge Felipe R. Tumacder, who originally presided over the case, thereafter retired prior to the termination of the case, hence the judge who penned the decision had no opportunity to observe the demeanor of the witnesses nor to note the evasiveness of their answers.chanroblesvirtualawlibrarychanrobles virtual law library

Said contention does not persuade. While it is true that the trial judge who conducted the hearing would possibly be in a better position to ascertain the truth or the falsity of the testimonies of the witnesses, it does not necessarily follow that a judge who was not present during a part of the trial can not render a valid and just decision, since the latter can also rely on the transcribed stenographic notes taken during the trial as the basis of his decision. ⁷chanrobles virtual law library

There is no dispute that on the night of October 19,1989, Remely Padios died of stab wounds inflicted by Mario Rivera. This has been admitted by the latter. In view of such admission, the Court shall focus its analysis and evaluation of the case on whether or not the appellant had presented cogent, persuasive and compelling evidence to prove his claim he acted under the justifying circumstances of self-defense.chanroblesvirtualawlibrarychanrobles virtual law library

Going to the basis, we need merely note that the three requisites of self-defense are unlawful aggression, reasonable necessity of the means employed to prevent or repeal it, and lack of sufficient provocation on the part of the person defending himself. ⁸ We have consistently stressed that n accused who interposes self-defense must prove every element of this defense in order to avoid criminal liability for the killing or injury of the victim, ⁹ and he must rely on the strength of his own defense and not on the weakness of the evidence is weak, it cannot be disbelieved after the accused himself admitted the killing. ¹⁰chanrobles virtual law library

Pursuing his theory self-defense, appellant tried to show that the deceased victim "pushed him" and "suddenly aimed his gun at (him)." Fearing for his life, so he claims, he "unconsciously drew (his) knife" and "thrust it at him." Appellant further testified that after stabbing the deceased once, he filed from the scene. ¹¹chanrobles virtual law library

The testimony of appellant on how he supposedly stabbed the victim runs counter to the physical evidence in the case, as reflected in the medico-legal report. The medico-legal certificate, issued by the Cagayan Valley Regional Hospital with Dr. Errol Jesus de Yro as the attending physician, reveals that the victim suffered two (2) stab wounds: the first, "5 ms., 5th ICS line, (R) parasternal line," and the second, "5 cms., (L) lumbar are w/ omental evisceration." ¹² Dr. Romulo A. de Rivera, interpreting said certificate because of the unavailability of the attending physician, testified that the entry of the first wound was on the fifth right breastbone while that of the second wound was on the left lumbar area, left side of the back. ¹³chanrobles virtual law library

In addition, Dr. De Rivera testified that when the second wound was inflicted, the assailant was behind the victim. Either wound, both lethal, could have caused the death of the victim. ¹⁴ It will lo be noted that appellant did not suffer any injury, although the victim was taller, had a bigger build ¹⁵ and was allegedly already aiming his gun at appellant before said victim was stabbed.chanroblesvirtualawlibrarychanrobles virtual law library

In the present case, the number of wounds, the point of entry of the second wound, the position of the victim in relation to the assailant when the second wound was inflicted, s well as the fact that appellant did not sustain any injury, conjointly belie any pretension of self-defense. The nature and the number of wounds inflicted by an assailant are constantly and unremittingly considered important incident which disprove a plea of self-defense. ¹⁶chanrobles virtual law library

Appellants tried to demonstrate that his acts were purely in legitimate self-defense by citing the testimony of prosecution witness Emma Rival which appellant claims corroborates his testimony that indeed there was unlawful aggression on the part of the deceased Padios. ¹⁷ Said attribution of appellant, howevr, is not only misleading but a gross distortion be truncation of the testimony of said witness. What appellant quotes in his brief starts with the portion where the witness said that the victim drew his gun after he was pushed by Rivera. Deliberately omitted was the preceding portion of her testimony where she clearly explained that, prior thereto, she saw both accused attacking the victim, before he drew his gun, to wit:

Q What did Remely Padios do, being stabbed by the two accused namely Mario Rivera and Venancio Mercado, Jr.?chanrobles virtual law library

A He took his gun, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q What did the two accused do after stabbing Remely Padios?chanrobles virtual law library

A They ran away, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And what was the position of Remely Padios when he tried to unseath (sic) or withdraw (sic) his firearm?chanrobles virtual law library

A They pushed him, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Who pushed him?chanrobles virtual law library

A Mario Rivera, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And what happened to Remely Padios after he was pushed by Mario Rivera?chanrobles virtual law library

A He fell, sir. ¹⁸

If appellant honestly believed that his acts consisted of self-defense against the unlawful aggression of the victim, instead of immediately running away after stabbing the latter, he could and should have informed the people inside the restaurant of what had just transpired and sought aid for himself and Padios. For that matter, he should also have reported the incident to the police, instead of escaping and avoiding the authorization until he was arrested. His actuations cannot but put his case within the ambit of our jurisprudential doctrine that the flight of an accused discloses a guilty conscience. ¹⁹chanrobles virtual law library

Appellant further declared that he saw Mercado "in our place" after the incident but they did not talk to each other not did he inform Mercado that he stabbed the security guard. ²⁰ Said representation of appellant, if true, is perplexing and abnormal. Surely, what had taken place was not a mere ordinary occurrence that one would easily forget or neglect to mention. On the other hand, Mercado would at least have made inquires as to what had actually happened.chanroblesvirtualawlibrarychanrobles virtual law library

Aside from the foregoing, neither can appellant hop for mileage from the testimony of Mercado on which he relies for corporation. Mercado declared that although he saw the victim 'pull" appellant away and that the latter was brought out of the restaurant, he (Mercado) did not do anything but he just proceeded to drink his beer. Mercado further narrated that after paying the bill, he went out and saw that victim aiming his gun at appellant prompting the latter to "box" the deceased. Still, he did not anything and opted rather to return inside the restaurant where he sat down and, after the incident, he went home. ²¹chanrobles virtual law library

It is hard to believe that although the deceased was supposedly aiming his gun at appellant in the presence of Mercado, this witness took no action whatsoever. The Court understands the postulated hesitancy of Mercado not to get involved in any altercation, considering that he is a recidivist. But the Court is baffled why he did not at the very least report that fact to or seek assistance from the people inside the restaurant if he really saw the security guard pointing a gun at appellant Rivera who is his chilhood friend and neighbor. ²² We have perforce to recall the rule that evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself, ²³ and reject these blatant prevarications of Mercado.chanroblesvirtualawlibrarychanrobles virtual law library

Although the prosecution's case rested mainly on the testimony of Emma Rival, the Court finds no reason not to favorably entertain her testimony on the particulars regarding the assault of appellant himself against the victim. Our review of the records confirms the trial court's observation that witness Rival testified in a straightforward manner and withstood the rigors of cross-examination. Any flaws in her testimony on other aspects of the incident are minor errors ascribable to inaccuracy in her observation or perception of rapidly moving events, rather than to an intent to fabricate.chanroblesvirtualawlibrarychanrobles virtual law library

Appellant failed to establish any dubious motive on the part of witness Rival as to why she would give a fictional testimony against appellant. Indubitably, said witness, being a co-employee of victim Padios, would have more reason than any ordinary witness to make sure that the real killer of her co-worker be brought to justice. Absent the most compelling reason or motive, it is inconceivable why witness Rival would openly and publicly lie or concoct a story which would send an innocent man to jail.chanroblesvirtualawlibrarychanrobles virtual law library

Another consideration that sustains the position of the prosecution and derails the propositions of the defense is the fact that any motive for the encounter lies on the part of appellant. Roval testified that, prior to the incident, appellant Rivera and Mercado had created trouble by breaking bottles inside the restaurant. The victim chided the two for creating trouble and brought them out of the establishment, as it was his duty to do so. ²⁴ Resenting the fact that they were admonished and ejected from the premises, it is not hard to conclude that both accused had the ill-conceived reason to take offense and resources against the victim. Consequently, and on the foregoing considerations, appellant's theory of self-defense must be completely rejected.chanroblesvirtualawlibrarychanrobles virtual law library

The information in the present case specifies evident premeditation and treachery as qualifying circumstances. However, we agree with appellant that evident premeditation may not be approached against him. The prosecution failed to present sufficient evidence as to how and when the plan to neutralized the victim was conceived or what time elapsed before it was clarfied out. Evident premeditation cannot be appreciated in the absence of direct evidence of the planning and the preparation to kill, ²⁵ and that the execution of the criminal act was preceded by cool thought and reflection upon the resolution to carry out the criminal intent during a space of time sufficient to arrive at a claim judgment. ²⁶chanrobles virtual law library

We are likewise not inclined to hold that there was treachery in the killing of the victim. We are not unaware of rulings to the effect that even if the attack is frontal, as in this case, but the suddenness thereof rendered it impossible for the victim to make a defense or to escape, alevosia may nevertheless be appreciated. It is to be conceded, however, that such doctrinal pronouncements necessarily envision that each case must be judged in light of the attendant factual milieu thereof and, more importantly, under the overall concept and rationale for treachery which, if considered as a qualifying circumstances, would change the nature of the unlawful killing and call for the imposition of the highest penalty under the law.chanroblesvirtualawlibrarychanrobles virtual law library

The trial court considered the killing of the victim as treacherous on the theory that the accused employed a manner of execution which ensued the offenders' safety from any defense or retaliatory act of the victim and that such mode of execution was deliberately or consciously chosen by them. It draws for its conclusion upon the following statements of prosecution witness Emma Rival:

Q How come that you saw the stabbing incident?chanrobles virtual law library

A When I returned back (sic) at El Gusto I thought they were making a sign to "APPEAR" (clapping of hands together) then, I noticed that they were already stabbing him, sir. ²⁷

which she amplified on cross-examination in the following manner:

Q Who were making the sign of appear?chanrobles virtual law library

A Venancio Mercado and Mario Rivera, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q What about the deceased?chanrobles virtual law library

A No, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q What did these two do?chanrobles virtual law library

A They stabbed him, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q When they were making (the) sign appear?chanrobles virtual law library

A When they were in the act of making the sign of appear, they suddenly stab(bed) him, sir. ²⁸

It would, at first impression, imply that appellant and his co-accused resorted to their ploy of making the "appear" sign to delude the victim into thinking that their intentions in talking to him were peaceful do that they could catch him unaware and vulnerable to an unexpected attack. This may have been their purpose but, although they did succeed in fatally stabbing the victim, it would be too simplistic to forthwith conclude that there was treachery without considering the legal implications of the facts antecedents to this charade of appellant and his co-accused.chanroblesvirtualawlibrarychanrobles virtual law library

As earlier stated, while the two accused were still inside the restaurant they started creating trouble by breaking bottles, such that the victim had to forcibly escort them out of the place. ²⁹ When witness Emma Rival went to buy her merienda at Lansi's Store much later, she saw Rivera there while Mercado was with the victim at the guard post, and they were obviously joined thereafter by Rivera. ³⁰ When Rival later left the store to return to El Gusto, these were what she witnessed:

Q How far were these two accused from Remely Padios when they were making the sign of appear?chanrobles virtual law library

A They called Remely Padios outside, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q I am asking where these two accused (sic) from Remely Padios when they were making the sign of appear?chanrobles virtual law library

A They were facing each other, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And this Remely Padios was with a firearm?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q You mean to say that it was not drawn?chanrobles virtual law library

A It was intact in his waist, sir. ³¹

From the foregoing facts, we can readily deduce that the victim was not completely unaware that herein appellant and Mercado posed a danger to him and which necessarily put him on his guard. He had forced them out of the restaurant and he was aware of their capacity and disposition to make trouble despite his presence therein as a security guard. Instead of going home, they loitered in the premises and later called him outside. He would be naive to believe that their intentions were anything but hostile considering their resentment and humiliation after being publicly required to leave the restaurant with the knowledge of other customers. In fact, when they were making the "appear" sign, the victim did not join them in the act. Also we must not lose sight of the fact that the victim was duly armed with a .38 caliber revolver which is more than sufficient guard, he was trained not only to detect but also to anticipate the presence of danger.chanroblesvirtualawlibrarychanrobles virtual law library

Turning to doctrines of earlier vintage but which are still consistently followed as authoritative precedence, we are reminded that treachery is not to be presumed, but must be proved as conclusively as the act it qualifies. ³² The same degree of proof to dispel any reasonable doubt is required before treachery may be considered either as an aggravating or qualifying circumstance. ³³ Further, it has long been declared that the qualifying circumstance of treachery must be based on some positive conclusive proof and not only upon hypothetical facts ³⁴ or on mere suppositions or presumptions. ³⁵chanrobles virtual law library

Again, paragraph 16, Article 14 of the Revised Penal Code itself requires that the means, methods and forms employed, in order to constitute treachery, must have been directly and specially sought, adopted or used to insure both the accomplishment of the criminal design and its execution with impunity or without risk to the offender. ³⁶ Thus, in U.S vs. Namit, ³⁷ it was held that where the aggressor failed to adopt a mode of attack intended to facilitate the perpetration of the killing without risk to himself, the circumstances that the attack was sudden and unexpected by the person attacked did not constitute the element of alevosia necessary to raise homicide to murder. Where it was not established that the defendant in killing the deceased employed any means by which all defenses on the part of the latter should be impossible, there is no sufficient ground to establish alevosia and the killing should be classified as homicide. ³⁸chanrobles virtual law library

Accordingly, in light of the foregoing statutory and jurisprudential guideposts, we cannot conclude that the accused acted with treachery since the means they employed did not eliminate all risks to themselves. As in the aforecited case of Asilo, the victim was not taken entirely unaware by the assault against him. Being adequately armed, neither can it b said that all means of defense on his part were impossible. Here, by the exercise of a reasonable degree of anticipatory caution and vigilance, the victim either could or should have been able to defend himself since he had all the opportunity to do so, and he could have prepared for or anticipated the attack. We, therefore, hold that under the foregoing disquisition and considering that doubts are resolved in favor of the accused since criminal justice inclines in appropriate cases to the milder form of liability, the crime was not attended by alevosia and should be considered as simple homicide without any modifying circumstance.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the judgment appealed from is hereby MODIFIED by convincing the accused of the crime of homicide instead of murder, and imposing upon him an indeterminate sentence of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum. In all other respects, the aforesaid judgment of the court a quo is AFFIRMED.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Narvasa, C.J., Padilla and Nocon, JJ., concur.

Endnotes:

1 Original Record, 1.chanrobles virtual law library

2 Ibid., 138.chanrobles virtual law library

3 Ibid., 153.chanrobles virtual law library

4 TSN, May 17, 1990, 4-10.chanrobles virtual law library

5 Ibid., February 26, 1991, 7-16.chanrobles virtual law library

6 Brief for the Accused-Appellant, 3; Rollo, 35.chanrobles virtual law library

7 People vs. De la Paz, G.R. No. 84636, August 4, 1992.chanrobles virtual law library

8 Article 11(1), Revised Penal Code.chanrobles virtual law library

9 People vs. Caparas, et al., 102 SCRA 781 (1981); People vs. Gavino, Sr., 155 SCRA 625 (1987).chanrobles virtual law library

10 People vs. Mercado, 159 SCRA 453 (1988); People vs. Rey, 172 SCRA 149 (1989).chanrobles virtual law library

11 TSN, February 26, 1991, 13-14.chanrobles virtual law library

12 Exhibit A; Original Record, 95.chanrobles virtual law library

13 TSN, October 4, 1990, 7.chanrobles virtual law library

14 Ibid., id., 7-8.chanrobles virtual law library

15 Ibid., February 27, 1991, 18-19.chanrobles virtual law library

16 People vs. Bigcas, et al., 211 SCRA 631 (1992).chanrobles virtual law library

17 Brief for the Accused-Appellant, 7; Rollo, 35.chanrobles virtual law library

18 TSN, May 17, 1990, 7-8.chanrobles virtual law library

19 People vs. Dalinog, 183 SCRA 88 (1990).chanrobles virtual law library

20 TSN, February 27, 1991, 25.chanrobles virtual law library

21 TSN, March 25, 1991, 9-13.chanrobles virtual law library

22 Ibid., id., 20.chanrobles virtual law library

23 People vs. Marti, 193 SCRA 57 (1991).chanrobles virtual law library

24 TSN, May 7, 1990, 23.chanrobles virtual law library

25 People vs. Samson, 176 SCRA 710 (1989).chanrobles virtual law library

26 People vs. Tunhawan, 166 SCRA 638 (1988).chanrobles virtual law library

27 TSN, May 17, 1990, 19-20.chanrobles virtual law library

28 Ibid., id., 28.chanrobles virtual law library

29 Ibid., id., 23-34.chanrobles virtual law library

30 Ibid., id., 19.chanrobles virtual law library

31 Ibid., id., 33-34.chanrobles virtual law library

32 People vs. Abril, et al., 51 Phil. 670 (1928); People vs. Gondayao, et al., 30 SCRA 226 (1969).chanrobles virtual law library

33 People vs. Torejas, et al., 43 SCRA 158 (1972).chanrobles virtual law library

34 U.S. vs. Rana, et al., 4 Phil. 231 (1905).chanrobles virtual law library

35 U.S. vs. Perdon, 4 Phil. 141 (1905).chanrobles virtual law library

36 See People vs. Lorenzo, 132 SCRA 17 (1984).chanrobles virtual law library

37 38 Phil. 926 (1918); see also People vs. Roduso, 60 SCRA 60 (1974).chanrobles virtual law library

38 U.S. vs. Asilo, 4 Phil. 175 (1905); People vs. Durante, 53 Phil. 363 (1929); People vs. Pelago, 24 SCRA 1027 (1968).