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SECOND DIVISION

G.R. No. 113793 August 11, 1995

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JUAN GANZAGAN, JR. Y MADAYAG, Accused-Appellant.chanrobles virtual law library

PUNO, J.:

In order for conviction to lie, all the elements of the crime must be established beyond a reasonable doubt. In the case of murder, it is incumbent upon the prosecution to muster the evidence required by the Constitution to show not only that the unlawful killing was perpetrated by the accused, but also that any of the attendant circumstances that qualify it to murder exists. If it cannot be proven with moral certainty that at least one of the qualifying circumstances enumerated in Article 248 of the Revised Penal Code is present, the prosecution fails in its task, and the accused must be freed from liability for murder.chanroblesvirtualawlibrarychanrobles virtual law library

The case at bench commenced upon the filing on June 13, 1988 of an Information before the Regional Trial Court of Urdaneta, Pangasinan, ¹charging appellant JUAN MADAYAG GANZAGAN, JR. ²of murdering SERVILLANO VILLANUEVA MANUEL, JR., as follows:

That on or about the 1st day of April 1988, in the evening, at Barangay Bayaoas, Municipality of Urdaneta, Province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then armed with a single bladed bolo, called "Panabas", measuring about 26 inches including its handle, with deliberate intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and hack one Servillano Manuel, Jr. y Villanueva, inflicting upon him the following injuries, to wit:

Significant External Findings:chanrobles virtual law library

- Abrasion, both knees; abrasion, right shoulder, lateral aspect; abrasion, right forefinger and middle finger; abrasion, chin, right half; abrasion with ecchysmosis, right temple near right eye;chanrobles virtual law library

- Gaping wound, neck, left half, middle half, with exposed and severed muscles, veins and arteries, measuring 11 cms. x 4 cms.;chanrobles virtual law library

- Incised wound, forehead, right half, above right eyebrow with exposed bone, measuring 6 cms. x 2 cms.;chanrobles virtual law library

- Incised wound, forehead, middle, measuring 5 cms. x 1 cm., with exposed wound;chanrobles virtual law library

- Incised wound, forehead, left half, with exposed bone, measuring 5 cms. x 1 cm.;chanrobles virtual law library

- Gaping wounds (5) nape and back of skull, beginning from back of head going down to nape;

Wound no. 1: measures 6 1/2 cms. x 1 cm.;
no. 2: measures 7 1/2 cms. x 1 1/2 cms.;
no. 3: measures 3 cms. x 1 1/2 cms.;
no. 4: 12 cms. x 1 1/2 cms.;
no. 5: 6 cms. x 1 1/12 cms.

Significant Internal Findings:chanrobles virtual law library

- Neck, left half, lateral aspect; severed jugular vein and carotid artery;chanrobles virtual law library

- Fracture, linear, right frontal bone, 6 cms. long;chanrobles virtual law library

- Fracture, linear, middle half of frontal bone, 2 cms. long;chanrobles virtual law library

- Fracture, linear, left half of frontal bone, 5 cms. long;

which caused the death of Servillano Manuel, Jr., y Villanueva as a consequence, to the damage and prejudice of his heirs.

Appellant was arraigned. He pleaded not guilty to the charge leveled against him. Trial ensued.chanroblesvirtualawlibrarychanrobles virtual law library

The records show that appellant and Servillano Manuel, Jr. lived in the same neighborhood in Sitio Las Vegas, Barangay Bayaoas, Urdaneta, Pangasinan. ³During his lifetime, Servillano worked as a kristo, or cockpit bet caller, and as a collector in carnival shows. ⁴Before his arrest, appellant was working part-time as a laborer. ⁵

The prosecution produced an eyewitness in the person of ELINO MANUEL, ⁶Servillano's younger brother. Elino narrated that sometime after five o'clock in the afternoon (5:00 p.m.) of April 1, 1988, appellant came to their house looking for Servillano. ⁷Failing to find him there, appellant boxed the door of the Manuel residence twice and left in a huff. "Hutdon mong tanan, patyon mong tanan," he uttered in Visayan as he left. ⁸Chills ran down Elino's spine. In his mind, he translated appellant's threat: "I will kill you all!" ⁹

Fearing for his brother's life, Elino rustled to the corner of Las Vegas Road and Sison Street, where he expected Servillano to pass on his way home from the poblacion. Unfortunately, he was wrong, for Servillano opted to take an alternate route back to their house. ¹⁰

After waiting in vain at the corner for about an hour, Elino headed home. On his way, he caught sight of appellant hacking Servillano with a bolo about fifteen (15) meters from where he was. Servillano was then stooped forward and away from appellant, with his head down and backside pointed upward. ¹¹Immobilized by shock, Elino witnessed appellant strike Servillano four times, and then throw aside the bloodied bolo he used. Appellant escaped on-board a tricycle, together with his brother-in-law, Ernesto Adame. ¹²

Servillano's body was autopsied on the morning of April 2, 1988, by rural health unit physician DR. RAMON GONZALES, JR., ¹³who found the cause of death to be "irreversible shock due to arterial hemorrhage caused by the hacking wound, neck." ¹⁴His findings were reduced to a written report, ¹⁵the contents of which are quoted in and incorporated into the Information filed against appellant.chanroblesvirtualawlibrarychanrobles virtual law library

The defense did not challenge the result of the autopsy conducted on Servillano's body, and did not question the medical findings as to the cause of death. Appellant, in fact, admitted that he inflicted the fatal hacked wounds on Servillano. However, appellant sought shelter behind the doctrine of self-defense. He and his wife, MARILOU GANZAGAN, ¹⁶related a completely different version of what transpired on the day Servillano died.chanroblesvirtualawlibrarychanrobles virtual law library

The Ganzagans testified that at around five o'clock in the afternoon (5:00 p.m.) of April 1, 1988, they were at home. Marilou was then downstairs, preparing some bilo-bilo, while appellant was on the upper level of the house, watching over their two-month-old infant daughter. ¹⁷Suddenly, Servillano Manuel, Jr., who was visibly upset, barged into their house, looking for
appellant. ¹⁸He left hurriedly without waiting for appellant to come down. ¹⁹

Not long after, Servillano returned to the Ganzagan residence. ²⁰This time, he was armed with a bolo, with which he stuck the house near the kitchen. ²¹Appellant confronted Servillano who cursed ²²and abruptly assaulted the former with the bolo. He delivered an overhead hacking blow ²³to appellant, who stepped back and parried the same with his right arm. The tip of the bolo hit the appendage and produced a three-centimeter nick on it. ²⁴Marilou rushed out of their house onto the street, screaming for help. None came to her aid, as everyone was attending a procession along the Urdaneta-Asingan provincial road. ²⁵When she returned to their house, neither appellant nor Servillano was there. ²⁶She did not think to look for the two, and merely remained inside their house. ²⁷

Meanwhile, after a brief tussle with Servillano, appellant was able to wrest the bolo away from him. With bolo in hand, appellant ran to the middle of the street. ²⁸He stopped when he remembered his baby, who was left alone
in their house. ²⁹For the next five minutes, appellant stood transfixed on the road. ³⁰The impasse was broken by Servillano who renewed his attack. ³¹In trying to grab the bolo back from appellant, Servillano stumbled and fell forward, face down and with his backside pointing up. ³²It was then that appellant hacked Servillano several times. ³³

Appellant fled from the scene of the crime. He went into hiding, ³⁴and a week passed after the incident before his wife saw him again. ³⁵Much later, during the pendency of the trial against him, appellant jumped bail. ³⁶

In rebuttal, the prosecution submitted in evidence a certification of the death of the Ganzagan's four-month-old son, Michael, on January 15, 1988, barely two-and-a-half (21/2) months before Servillano's killing.chanroblesvirtualawlibrarychanrobles virtual law library

At the close of trial, the court a quo decided against appellant. It held:

The killing was qualified by evident premeditation and treachery because when (appellant) went to the house of the victim armed with a bolo looking for the latter who was not around, he had already the intention to kill him and said intention to kill was never abandoned as he waited for the arrival of the victim whom he saw along the road. There was treachery as the accused hacked the victim by the neck several times and the sudden and frontal attack on the forehead, thus causing his bones on the forehead to be exposed as shown in the medical certificate . . . The exposure of the bones would only show that the hacking was therefore so strong enough as to insure his premeditated intention to kill the victim.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, in the light of the foregoing discussion, this Court believes that the prosecution was able to prove the guilt of the (appellant) beyond reasonable doubt. Pursuant to Art. 248 of the Revised Penal Code, the court hereby finds the (appellant) Juan Ganzagan, Jr., guilty of the crime of Murder and sentences him to suffer the penalty of reclusion perpetua, considering the provisions of the 1987 Constitution (Art. III, Section 19[1]), and with all the accessory penalties provided by law; and to pay the civil liability of P50,000.00 to the heirs of the deceased and moral damages in the amount of P50,000.00, with costs.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED. (Citations omitted) ³⁷chanrobles virtual law library

Appellant now sets forth the following assigned errors:

Ichanrobles virtual law library

THE TRIAL COURT ERRED IN NOT UPHOLDING SELF-DEFENSE AS A GROUND FOR ACQUITTAL OF ACCUSED-APPELLANT.

IIchanrobles virtual law library

ON THE ASSUMPTION THAT ACCUSED-APPELLANT IS AT ALL GUILTY, THE TRIAL COURT NEVERTHELESS ERRED IN CONVICTING HIM FOR MURDER INSTEAD OF ONLY HOMICIDE CONSIDERING THAT NEITHER THE QUALIFYING CIRCUMSTANCE OF TREACHERY NOR PREMEDITATION WAS DULY ESTABLISHED. ³⁸

The appeal is partly meritorious. Appellant is not guilty of murder.chanroblesvirtualawlibrarychanrobles virtual law library

Appellant reiterates his reliance on the doctrine of self-defense to justify the killing of Servillano. He argues that he was able to prove all the elements of defense of self, namely: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself.chanroblesvirtualawlibrarychanrobles virtual law library

We are not persuaded.chanroblesvirtualawlibrarychanrobles virtual law library

There are strong reasons to doubt the defense version of the facts that led to the killing of Servillano. The account of the Ganzagan spouses is inconsistent with the common experience and observation of mankind. ³⁹Especially difficult to accept are the following assertions:

1. On the fateful afternoon of April 1, 1988, appellant was preparing bilo-bilo on the second floor of their house because he was looking after their two-month-old infant daughter. This is highly peculiar, since according to the records of their parish church (Exh. "F", Original Records, p. 227), their four-month-old infant son, Michael died barely two-and-a-half-months prior to Servillano's killing;chanrobles virtual law library

2. While appellant and Servillano were grappling for possession of the latter's bolo, Marilou ran out to seek help. She said that she only ran to a distance of fifty (50) to one hundred (100) meters from their house, but it took her thirty (30) minutes to return home (TSN of November 22, 1993, pp. 5, 9, 10);chanrobles virtual law library

3. None heeded Marilou's call for help because everyone else in their entire neighborhood was attending a procession on the main road (Ibid., at p. 5);chanrobles virtual law library

4. When Marilou returned home and found neither her husband (appellant) nor Servillano there, she did not - either out of worry or curiosity - even try to find out what had happened to them (Id., at pp. 5, 12);chanrobles virtual law library

5. After he succeeded in taking the bolo away from Servillano, appellant ran out of their house to the middle of the road, where he stopped and stood doing nothing for five minutes. On cross-examination, he claimed that he stopped because he remembered that their infant daughter was left alone in their house. But, he did not attempt to return to their home anyway;chanrobles virtual law library

6. It took Servillano five minutes to reach appellant, who was standing fifteen (15) meters from where they had previously been wrestling, because he (Servillano) was drunk (TSN of November 23, 1983, p. 20); andchanrobles virtual law library

7. When Servillano finally caught up with appellant, he did not attack the former immediately although he thought that Servillano was again armed with a weapon. Instead, he waited until Servillano stumbled face down while trying to wrest the bolo away from him (appellant).

Furthermore, appellant's self-contradictions and vacillations in his testimony are patent and numerous. These were exposed in his cross-examination, where he was confronted and asked to explain several of his contradictory statements, viz.:

FISCAL VENIEGAS:chanrobles virtual law library

Q On April 1, 1988 at about 5:00 o'clock, Servillano Manuel was drunk and he came to you in your house and extorted money from you, is that correct?chanrobles virtual law library

WITNESS:chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q As he used to do in the past every time he is drunk?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And he was asking money from you?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q How did he try to ask you for liquor money? Will you quote what he said?chanrobles virtual law library

A He told me, "Will you give me money because I got short in the other side and I need some more money."chanrobles virtual law library

Q Is that (during) the first time that he came or on the second time when he returned to your house?chanrobles virtual law library

A The first time, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q The first time, when you were upstairs making bilo-bilo?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And he was talking to you?chanrobles virtual law library

A He talked with my wife, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q So, it was not you from whom he was asking money, but it was your wife?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q But you said the first time that he came, you testified that he was asking for your name and later he was asking for you from your wife.chanroblesvirtualawlibrarychanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Then he left. and later on, after about 30 minutes, he came back?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And you went down because as you were upstairs, you went down and asked him why he was asking you. Correct?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And Servillano Manuel without saying a word hacked you immediately. Is that correct, according to your testimony?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Then you wrestled and wrested the bolo from him and you ran to the street. Is that correct?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And in your earlier testimony, there is no point in time when you talked to him and (when he) asked you for wine money. Is that correct?chanrobles virtual law library

A Yes, sir.

xxx xxx xxx

Q When Servillano Manuel returned to your house as you said, did he also ask where you were from your wife?chanrobles virtual law library

A Not anymore because he immediately hacked the post in the doorway.chanroblesvirtualawlibrarychanrobles virtual law library

Q And at that time, you got irked and you went downstairs?chanrobles virtual law library

A I went down. He was the one who got mad. I just went down the stairs.chanroblesvirtualawlibrarychanrobles virtual law library

Q What did he tell you when he came back if any?chanrobles virtual law library

A He said, "vulva of your mother!"chanrobles virtual law library

Q Because you asked him why he was looking for you, correct?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And he answered, "Okinnam!" (vulva of your mother)?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q In direct examination, you said that when Servillano returned after half an hour after the first time that he came to your house, you went down your house, asking him why he hacked the post and you said he did not answer and immediately hacked with a bolo on your right hand. Do you remember having said that?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Why did you say that he answered you "vulva of your mother"? Are you changing your previous testimony?chanrobles virtual law library

A Immediately before he hacked me, he said "vulva of your mother!"chanrobles virtual law library

Q In other words, your previous testimony that he did not say anything before he hacked you is not correct?chanrobles virtual law library

A That is true.chanroblesvirtualawlibrarychanrobles virtual law library

Q But you did not tell the Court that he said "vulva of your mother!"chanrobles virtual law library

A He said that.chanroblesvirtualawlibrarychanrobles virtual law library

Q But you did not mention to the Court in the first time.chanroblesvirtualawlibrarychanrobles virtual law library

A Because I am nervous.

xxx xxx xxx

Q Now, in your direct testimony, you said that after wresting the bolo from Servillano, you ran towards the road and you stood there for five (5) minutes after which Servillano Manuel came to you and attacked you. Do you remember having stated that?chanrobles virtual law library

A That is why I paused for five (5) minutes in the road, because I thought of my baby in the house whom I wanted to protect because he might harm the baby instead.chanroblesvirtualawlibrarychanrobles virtual law library

Q But you also left your wife in the kitchen with your baby upstairs, correct?chanrobles virtual law library

A She was not there anymore because as soon as we fought with Servillano Manuel, my wife became hysterical and she ran away.chanroblesvirtualawlibrarychanrobles virtual law library

Q When you were on the road, you thought of your baby as you said. That is why you stayed there for five (5) minutes?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And then it was at that time that Servillano Manuel appeared and tried to kill you as the intention as you said was to kill you.chanroblesvirtualawlibrarychanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q But he was already unarmed because you had already wrested the bolo from him?chanrobles virtual law library

A Yes sir, because during that time, I thought that he still had some arms with him because it was quite dark already.chanroblesvirtualawlibrarychanrobles virtual law library

COURT:chanrobles virtual law library

Q When you were standing there at the road, Servillano approached you?chanrobles virtual law library

A Yes, Ma'am.chanroblesvirtualawlibrarychanrobles virtual law library

Q When he approached you, why did you say that Servillano has intention to kill you?chanrobles virtual law library

A When Servillano Manuel came and approached me, he was so mad. I thought he was armed and it was quite dark then, so I decided to hack him.chanroblesvirtualawlibrarychanrobles virtual law library

Q When you decided to hack him, what did you use? The bolo you wrested from him?chanrobles virtual law library

A Yes, Ma'am.chanroblesvirtualawlibrarychanrobles virtual law library

Q Did he grapple for the possession of the bolo from you in the road?chanrobles virtual law library

A He tried to wrest the bolo from me while we were in the road.

xxx xxx xxx

Q Will you demonstrate how he grappled the bolo again?chanrobles virtual law library

A While I was holding the bolo downward and I was standing by the road, Servillano Manuel came and lunged forward to get the bolo from my hand, and in that instance, he stumbled to the ground.chanroblesvirtualawlibrarychanrobles virtual law library

Q Will you demonstrate how Servillano stumbled?chanrobles virtual law library

A As he lunged forward to get the bolo from my hand, I moved my hand which held the bolo away from him. So, he fell to the ground, face down.chanroblesvirtualawlibrarychanrobles virtual law library

Q With the buttocks up?chanrobles virtual law library

A (The witness demonstrated how Servillano Manuel fell to the ground, face down with his buttocks up.)chanrobles virtual law library

FISCAL VENIEGAS:chanrobles virtual law library

Q And Servillano Manuel was in that position when you hacked him?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Could you tell the Court in the first blow when you hacked him, where did you hack him? What part of his body?chanrobles virtual law library

A His face and his arm.chanroblesvirtualawlibrarychanrobles virtual law library

Q You mean that in that position with face on the ground, you hacked his face and his hand?chanrobles virtual law library

A When Servillano came towards me he tried to wrestle the bolo away from me. That is why I lunged the bolo to his face. That is why his face and arm were hit.chanroblesvirtualawlibrarychanrobles virtual law library

Q At the same time, the face was hit?chanrobles virtual law library

A I cannot recall.chanroblesvirtualawlibrarychanrobles virtual law library

Q So, it is not true that when he came at you after you were standing there for five (5) minutes and you concluded his intention to kill you when he wrested the bolo, that he fell to the ground as you said?chanrobles virtual law library

A The first time he tried to wrestle the bolo from me, I immediately hacked him on the back and the second time, he tried to wrestle (was when he fell down).chanroblesvirtualawlibrarychanrobles virtual law library

Q But in the demonstration, you demonstrated only one attempt on his part to wrestle the bolo from you. Is that correct?chanrobles virtual law library

A Yes, sir.

xxx xxx xxx ⁴⁰

In any event, even granting the defense's factual assertions, we are still unimpressed by appellant's theory of self-defense.chanroblesvirtualawlibrarychanrobles virtual law library

It is a well-entrenched principle in criminal law that the burden of proving the guilt of the accused lies squarely on the shoulders of the prosecution. Conviction must rest, not on the weakness of the defense, but on the strength of the prosecution. ⁴¹In cases, however, where the accused admits committing the crime but invokes self-defense to escape liability, the rule is reversed and the burden of proof shifted to the accused to prove the elements of his defense. As held in the case of People v. Boniao, 217 SCRA 653 (1993):

By invoking self-defense, the appellant admitted killing the four (4) victims. The burden is, therefore, upon him to prove the existence, by clear and convincing evidence, of its essential requisites . . .; otherwise stated, the onus probandi was thus shifted to him . . . . He must rely on the strength of his own evidence and not on the weakness of that of the prosecution . . . for even if the latter were weak, it could not be disbelieved after he himself admitted the killing . . . (Citations omitted)

Thus, in claiming self-defense, appellant needs to convincingly establish that: (1) Servillano acted with unlawful aggression towards him; (2) the means he employed to repel such aggression was reasonable; and (3) he did not sufficiently provoke Servillano towards aggression. If appellant fails to discharge this burden of proof, his conviction shall of necessity follow, on the basis of his admission to the killing.chanroblesvirtualawlibrarychanrobles virtual law library

Unlawful aggression, which is an indispensable element of self-defense, ⁴²is an assault or attack, or a threat thereof in an imminent and immediate manner, which places the accused's life in actual peril. ⁴³It is an offensive act positively strong and determinative of the aggressor's intent to cause harm or injury. ⁴⁴It presupposes a material attack which is impending or at the point of happening, and not merely an intimidating attitude or stance.chanroblesvirtualawlibrarychanrobles virtual law library

In the case at bench, appellant testified that after the initial bolo attack on him, he was able to take possession of the weapon and run away from Servillano. At that point, the unlawful aggression against him effectively ceased. When hostilities resumed five minutes later, appellant was the armed protagonist, and Servillano's act of trying to wrest the bolo back from him cannot be considered as unlawful aggression. Appellant no longer faced any imminent or immediate danger to his life and limb from his opponent.chanroblesvirtualawlibrarychanrobles virtual law library

There was no unlawful aggression by Servillano. Appellant had nothing to repel. Therefore, he cannot successfully posit the view that he was merely defending himself when he killed Servillano.chanroblesvirtualawlibrarychanrobles virtual law library

Parenthetically, appellant's claim of self-defense is further belied by the physical evidence in the case, specifically the number, location and severity of the hacked wounds found on Servillano. Dr. Gonzales found five (5) gaping wounds on Servillano's neck, running from the back of the head to the nape which exposed and severed the muscles, veins and arteries in the neck area. These indicate clearly that appellant's act was no longer one of self-preservation, "but a determined effort to kill his victim." ⁴⁵

Appellant next postulates that even if self-defense were unavailable to him, he should only have been found guilty of committing homicide, and not murder. He claims that neither treachery nor evident premeditation, which are alleged in the Information, are present in the case at bench.chanroblesvirtualawlibrarychanrobles virtual law library

We are convinced.chanroblesvirtualawlibrarychanrobles virtual law library

The circumstances that qualify murder must be proven as indubitably as the killing itself. The presence of treachery ⁴⁶and evident premeditation ⁴⁷must not be deduced from mere presumption or sheer speculation. Unfortunately in the case at bench, that is exactly what the trial court did in concluding that both qualifying circumstances are present.chanroblesvirtualawlibrarychanrobles virtual law library

Article 14 (16) of the Revised Penal Code defines treachery thus:

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 specifically to insure its execution, without risk to himself arising from the defense which the offended party might make. (Emphasis ours.)

Its essence lies in the adoption of ways that minimize or neutralize any resistance which may be put up by the offended party.chanroblesvirtualawlibrarychanrobles virtual law library

In the present case, the prosecution failed to present any witness to testify as to the manner by which Servillano was attacked by appellant. Their sole eyewitness, Elino Manuel, only saw the actual hacking of the victim by appellant, and not the events that led to it. The records provide no basis for the trial court's finding of treachery. As we held in the case of People v. Bachar, 170 SCRA 700 (1989) ⁴⁸:

. . . Not a single eyewitness to the stabbing incident had been presented by the prosecution. Thus, the record is totally bereft of any evidence as to the means or method resorted to by appellant in attacking the victim. It is needless to add that treachery cannot be deduced from mere presumption, much less from sheer speculation. The same degree of proof to dispel reasonable doubt is required before any conclusion may be reached respecting the attendance of aleviosa.

Evident premeditation suggests the deliberate hatching of a plan to execute a crime. Its elements are: (1) a previous decision by the accused to commit the crime; (2) an overt act/acts manifestly indicating that the accused clung to his determination; and (3) a lapse of time between the decision to commit the crime and its actual execution sufficient to allow the accused to reflect upon the consequences of his acts.chanroblesvirtualawlibrarychanrobles virtual law library

Time and again, we have held that evident premeditation cannot be appreciated to qualify a killing to murder in the absence of direct evidence of the planning and preparation to kill when the plan was conceived. ⁴⁹In the case at bench, the prosecution failed to prove with any certainty that appellant had planned and prepared to kill Servillano previous to the fatal hacking. The records are bereft of any indication of such a plot. Furthermore, the findings of the court a quo that appellant was already armed with a bolo when he went to the Manuel residence looking for Servillano and that he waited in ambush for the latter, are totally unfounded. These were never mentioned in the testimony of prosecution eyewitness Elino Manuel.chanroblesvirtualawlibrarychanrobles virtual law library

Absent the qualifying circumstances of treachery and evident premeditation, the crime committed by appellant is not murder, but homicide, as defined and penalized under Article 249 of the Revised Penal Code.chanroblesvirtualawlibrarychanrobles virtual law library

IN VIEW WHEREOF, the conviction of appellant JUAN MADAYAG GANZAGAN, JR. by the Regional Trial Court of Urdaneta, Pangasinan, Branch 48 in Criminal Case No. U-4850 is AFFIRMED, but he is found GUILTY of the lesser crime of HOMICIDE. The appealed Decision, dated December 6, 1993, is MODIFIED so that appellant shall instead suffer the penalty of from twelve (12) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Narvasa, C.J., Regalado, Mendoza and Francisco, JJ., concur.