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G.R. No. 124809. December 19, 2001

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ROBERTO SAUL and ELMER AVENUE, Accused-Appellants.



This is an appeal from the decision 1 dated November 29, 1995, of the Court of Appeals in CA-G.R. CR No. 15294, affirming the decision 2 dated July 13, 1993, of the Regional Trial Court of Iloilo City, Branch 37, in Criminal Cases Nos. 39360 and 39361, finding both appellants Roberto Saul and Elmer Avenue guilty of the crimes of homicide and frustrated homicide.

The informations filed against the appellants read:

Criminal Case No. 39360

That on or about the 5th day of October 1992, in the City of Iloilo, Philippines and within the jurisdiction of this Court, said accused Roberto Saul, armed with a bladed instrument provided by his co-accused Elmer Avenue, conspiring and confederating between themselves, working together and helping one another, did then and there willfully (sic), unlawfully and criminally stab John Serojo with the said bladed instrument with which the accused Roberto Saul was wielding at the time, thereby causing upon the latter stab wound in the abdomen, which resulted in his death few moments thereafter.

CONTRARY TO LAW.3cräläwvirtualibräry

Criminal Case No. 39361

That on or about the 5th day of October 1992, in the City of Iloilo, Philippines and within the jurisdiction of this Court, said accused Roberto Saul, armed with a bladed instrument provided by his co-accused Elmer Avenue, conspiring and confederating between themselves, working together and helping one another, did then and there willfully, unlawfully and criminally stab Rodrigo Serojo with the said bladed instrument with which the accused Roberto Saul was wielding at the time, thereby inflicting upon the latter stab wound near the abdomen; thus the accused had performed all the acts of execution which could have produced the crime of Homicide as a consequence but which nevertheless did not produce it by reason of the causes independent of the will of the said accused, that is by the timely intervention of the third person and medical attention afforded to the said victim.

CONTRARY TO LAW.4cräläwvirtualibräry

Upon arraignment, both appellants pleaded not guilty to both crimes charged. Trial ensued.

The facts according to the prosecution, on one hand, are as follows:

On the evening of October 5, 1992, in Brgy. Sinikway, Iloilo City, Sipil Delotavo hosted a drinking spree at his house to celebrate his birthday. Among the guests were the appellants Roberto and Elmer, and the brothers Rodrigo and John Serojo. At about 10:00 oclock while the celebration was in full swing, Rodrigo took a nap on a long bench. He dozed off immediately. In jest, Roberto, alias Ganzon, slapped him on the face. Rodrigo awakened and instinctively threw an empty whiskey bottle at Roberto. Fortunately, the bottle did not hit the latter as it was parried by one of their companions. Instead, it hit a boy named Danny. Obviously irked, Roberto and Elmer left the house in a huff. Moments later, Rodrigo told his younger brother John that they were also going home. Accompanied by Sidney Sindin, one of the guests, the brothers left. Just outside the gate, the trio saw Roberto and Elmer standing a few meters away. As they approached the pair, Sidney saw Elmer hand a knife to Roberto, who in turn suddenly stabbed John. John fell and pleaded with Sidney to take him to the hospital. While Sidney was bent over John, he looked at the direction where Rodrigo was and saw that Roberto was likewise stabbing Rodrigo. Sidney hurriedly ran to the house of the Serojos and informed the mother about the incident. Thereafter, he got a pedicab and drove back to the scene. He noticed that the Serojo brothers were no longer there. A sister of the Serojos asked him to look for Rodrigo. He found the latter lying wounded on the pavement at the plaza. He brought him to the hospital. On their way, they caught up with the jeep where John was, and together, the brothers were taken to St. Pauls Hospital in Iloilo City. John was pronounced dead on arrival while Rodrigo survived.

On the other hand, the defense presented the following version of the incident.

At around 11:00 P.M., October 5, 1992, during a drinking spree, Sipil Delotavo, the celebrant, played a joke on Rodrigo Serojo, who was asleep on a wooden bench near the table where the others were gathered. Sipil threw a fishhead at Rodrigos face. The latter was awakened and simply mumbled words of warning, then went back to sleep. Sipil threw another fishhead at Rodrigos face. Rodrigo retaliated and threw an empty whiskey bottle at Roberto, hitting and wounding the latter on the head. Roberto covered his bleeding wound with his left hand but Rodrigos brother, John, suddenly ran towards him and started punching him in the stomach. Helpless, all Roberto could do was lean on the wall. At this point, Elmer intervened and separated the two. Elmer told Roberto to run, which the latter did. However, John chased Roberto. Sensing trouble, Elmer followed the two and upon reaching the gate of the compound, he saw John delivering fist blows at Roberto. He also noticed a certain Nestor Eufan standing nearby, looking at the hapless Roberto. Elmer then placed himself between John and Roberto and tried to stop John. John just brushed him aside and at that moment, he saw Rodrigo break an empty long-neck whiskey bottle. He handed Roberto a knife he claimed he picked from the table in Sipils house. Roberto took the knife and tried to run, but John, armed with a knife drawn from his hip, chased Roberto. Rodrigo with the broken bottle in hand, also ran after John and Roberto. At this point, Elmer and Nestor left the scene in haste.

A few meters away, John caught up with Roberto, grabbed him by the jacket and lunged at the latter with a knife. Roberto parried the knife with his hand, resulting to a wound between the ring and the middle fingers of his left hand. Cornered, Roberto stabbed John in the stomach. Roberto then saw Rodrigo about to strike him with the broken whiskey bottle, so he also stabbed Rodrigo. Thereafter, he ran home.

The following morning, at about 9:00 oclock, Roberto had his wound treated and later in the afternoon, he surrendered to the police.

After trial, the RTC rendered judgment 5 as follows:

WHEREFORE, Premises Considered, this Court finds the accused ROBERTO SAUL and ELMER AVENUE, in Criminal Case No. 39360 GUILTY beyond reasonable doubt for the crime of HOMICIDE, and are hereby both sentenced to an Indeterminate penalty of EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor as Minimum to FOURTEEN (14) YEARS of Prision Mayor as Maximum;

In Criminal Case No. 39361, GUILTY beyond reasonable doubt of the crime of FRUSTRATED HOMICIDE, and are hereby both sentenced to an indeterminate penalty of FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of Prision Correccional as Minimum to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor as Maximum.

Both accused are ordered to indemnify the heirs of the victim, John Serojo, the amount of P50,000.00; actual damages for the victim Rodrigo Serojo in the amount of P20,000.00, and to pay the costs.6cräläwvirtualibräry

On appeal, the CA affirmed the trial courts decision, with the sole modification such that the penalty imposed in Crim. Case No. 39360 is EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor as Minimum to FOURTEEN (14) YEARS of RECLUSION TEMPORAL as Maximum. 7cräläwvirtualibräry

Appellants come to this Court seeking reversal or modification of the RTC and CA decisions. They allege that the Court of Appeals erred,





Three issues require resolution by this Court: (1) whether or not the justifying circumstance of self-defense is present; (2) whether or not there was conspiracy between the appellants; and (3) Whether or not the mitigating circumstance of voluntary surrender should be appreciated in favor of appellant Roberto Saul.

Considering that accounts of the events leading to the alleged crimes are contradictory, the resolution of the first issue essentially hinges on a review of the factual findings of the trial and appellate courts.

Appellants claim that the victims were the unlawful aggressors in this case. They say that Rodrigo Serojo vented his anger at appellant Roberto Saul, despite the fact that it was not Roberto who played the prank at Rodrigo. They add that although John Serojo saw that it was Sipil Delotavo who threw the fishhead at his brother, still John attacked Roberto with his fists. Appellants contend that the brothers Serojo chased appellant Roberto, with the obvious intention of hurting him further, forcing Roberto to act in self-defense by stabbing the Serojos.

For the appellee, the Office of the Solicitor General (OSG) maintains that the unlawful aggressor in this case was appellant Roberto Saul, who purposely waited for the Serojo brothers to come out to inflict harm upon them because appellants felt aggrieved at the bottle-throwing incident at the party. The OSG contends that by the time the Serojo brothers left the party, they had no intention of inflicting any harm on appellants and in fact did not expect to see the latter waiting by the gate, as Roberto had already left ahead of them.

After a careful examination of the testimonies of the witnesses for the prosecution as well as those of the defense, we find appellants version less than convincing. According to the defense, it was Sipil Delotavo who played a prank on Rodrigo, and Rodrigo saw him do it. If so, then Rodrigo had no reason to be angry with Roberto. The defense also claim that Rodrigos brother, John witnessed all that had transpired and knew Roberto had no hand in disturbing his brothers sleep. If so, why did John punch Roberto? According to the defense, Roberto did not fight back and was even against the wall. 8 Again, if true, why did John act the way he did, to the extent of hitting Roberto? Appellants action belie the defenses version of events. It is not logical for the two brothers to be angry with the appellants for no apparent reason. Testimonies for appellants defense lack the ring of truth. Evidence should first be believable and logical before it could be accorded any weight. 9cräläwvirtualibräry

For a plea of self-defense to prosper, the following requisites must be present: (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means employed to prevent or repel it; and (c) lack of sufficient provocation on the part of the person defending himself. 10cräläwvirtualibräry

Unlawful aggression is the essential and primary element of self-defense. Its presence is a condition sine qua non if it is to be successfully invoked. It must be positively shown that there was a previous unlawful and unprovoked attack that placed the defendants life in danger and forced him to inflict more or less reasonable means to resist the said attack. 11cräläwvirtualibräry

In this case, appellants Roberto Saul and Elmer Avenue waited for the brothers Serojo outside of the gate of Sipil Delotavos house. Any hostility shown by Rodrigo against Roberto inside the house had already ceased by then. There was no more aggression on Rodrigos part, to speak of. By that time also, Roberto was no longer in any danger. Granting that only two minutes 12 have elapsed since the alleged bottle throwing incident within that interval of time, when the appellants stepped out already, the alleged aggression by the victims must have already ceased. There is no unlawful aggression when the peril to ones life, limb or right is neither actual nor imminent. 13 Aggression, if not continuous, does not constitute aggression warranting self-defense. 14 Moreover, if the person attacked allowed some time to lapse after he suffered the injury, such would not constitute self-defense but an act of revenge. 15cräläwvirtualibräry

The second requisite of self-defense presupposes the existence of unlawful aggression which is either imminent or actual, 16 and depends upon the nature and extent of the aggression. 17 The means employed by the person making a defense must be rationally necessary to prevent or repel an unlawful aggression. As observed by the trial court, the use of a knife against an unarmed attacker is not reasonable nor proper. 18 More so in this case where it has been established that in fact, no unlawful aggression came from the victims. Thus, we are lead to conclude that having initiated the attack on the victims, appellants could not convincingly claim they were sufficiently provoked by the victims. In fact, there was no provocation at all surrounding the actual knife attack by appellants against the Serojos.

Well-entrenched is the rule that one who invokes self-defense admits authorship of the killing, thus the burden shifts to that person to establish the justifying circumstance with clear and convincing evidence. 19 One who pleads it must rely on the strength of his own evidence and not on the weakness of that of the prosecution, for even if the latters evidence is weak, it could not be disbelieved after he has admitted the killing. 20 Here appellants failed to discharge said burden. They have not shown clearly and convincingly that they acted in self-defense when they stabbed their victims.

Coming now to the issue of conspiracy, appellant Elmer Avenue denies that he and Roberto Saul conspired to kill the Serojo brothers. Elmer insists he instinctively handed the knife to Roberto so the latter could defend himself. If at all, there was an offense committed, he avers that his participation was only as an accomplice.

For conspiracy to exist, the participants must agree to the commission of the felony and decide to commit it, which agreement may be deduced from the mode and manner of the commission of the offense or inferred from the acts that point to joint purpose and design, concerted action and community of intent. 21 The conspiracy must be shown to exist as clearly and convincingly as the crime itself. 22cräläwvirtualibräry

In the cases where this Court held that persons who provided the weapon used in the commission of the crime are co-conspirators, 23 the other contemporaneous acts of the accused before, during, and after the commission of the crime showed that the accused acted in unison for a common purpose. The circumstances in the present case, in our view, showed no such commonality of purpose.

Although the knife used by Roberto belonged to Elmer, his handing the knife to Roberto was not by itself an act of conspiracy. Nothing in the records shows that the two had a preconceived plan to commit the crime. 24 It will be recalled that here the fray started because of a practical joke pulled on one of the victims, Rodrigo Serojo. There is no proof on record that appellant Elmer Avenue was motivated by the criminal design similarly entertained by Roberto Saul at the same time. In a string of cases, 25 we said that the milder form of responsibility should be attributed to the appellants in case of doubt. Thus, we are constrained to agree with appellant Elmer Avenues assertion that his participation was only that of an accomplice in the offenses committed.

Did appellant Roberto Saul voluntarily surrender such that it may mitigate his liability? For voluntary surrender to mitigate the offense, the following elements must be present: (a) the offender has not actually been arrested; (b) the offender surrendered himself to a person in authority; and (c) the surrender must be voluntary. 26 A surrender, to be voluntary must be spontaneous, i.e. there must be an intent to submit oneself to authorities, either because he acknowledges his guilt or because he wishes to save them the trouble and expenses in capturing him. 27 We are unable to agree with the CAs finding that Robertos surrender was not voluntary simply because he surrendered only in the afternoon of the day following the crime and only after he presented himself to the NBI that same morning, implying that his surrender was a mere afterthought. 28 For voluntary surrender to mitigate an offense, it is not required that the accused surrender at the first opportunity. For as long the aforementioned requisites are met, voluntary surrender can be appreciated. Roberto Saul presented himself to the NBI in the morning and in the afternoon of that same day, gave himself up. He was not apprehended nor forced to surrender. In our view, the mitigating circumstance of voluntary surrender should count in his favor.

With regard to the civil aspects of the criminal cases, modifications are in order. The trial court awarded P50,000 as civil indemnity for the death of John Serojo, but only P20,000 as actual damages for the victim Rodrigo Serojo. 29 The amount of P50,000 awarded to the heirs of John Serojo as civil indemnity is proper, without need of proof other than the fact of victims death. 30 However, the amount of P48,512.66 representing medical and funeral expenses on the victim John Serojo, was duly admitted by the defense in the course of the trial and should be awarded as actual damages. 31 Likewise, the amount of P20,000 awarded by the trial court as actual damages for the victim Rodrigo Serojo should be increased to P34,448.40 representing his medical expenses. 32cräläwvirtualibräry

WHEREFORE , the instant petition is AFFIRMEDwith MODIFICATIONS.

In Criminal Case No. 39360, appellant ROBERTO SAUL is found GUILTY as principal in the crime of homicide for the wrongful death of John Serojo as defined under Article 249 of the Revised Penal Code. With the mitigating circumstance of voluntary surrender and applying the Indeterminate Sentence Law, he is sentenced to suffer an indeterminate penalty ranging from eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years of reclusion temporal as maximum.

Appellant ELMER AVENUE is GUILTY as an accomplice in the crime of homicide and applying the Indeterminate Sentence Law, is sentenced to suffer an indeterminate penalty of three (3) years of prision correccional as minimum to eight (8) years and one (1) day of prision mayor as maximum.

Appellants are also ordered to pay jointly and severally the heirs of the victim John Serojo the amount of P50,000 as civil indemnity and P48,512.66 as actual damages.

In Criminal Case No. 39361, appellant ROBERTO SAUL is found GUILTY as principal of the crime of frustrated homicide on the life of Rodrigo Serojo with the mitigating circumstance of voluntary surrender, and applying the Indeterminate Sentence Law, he is sentenced to suffer an indeterminate penalty ranging from five (5) years of Prision Correccional as minimum to eight (8) years of Prision Mayor as maximum.

Appellant ELMER AVENUE is found GUILTYas an accomplice in the crime of frustrated homicide and applying the Indeterminate Sentence Law, is sentenced to suffer an indeterminate penalty ranging from four (4) months of arresto mayor as minimum to two (2) years and four (4) months of prision correccional as maximum.

Appellants are also ordered to pay jointly and severally Rodrigo Serojo the amount of P34,448.40 as actual damages.


Bellosillo, (Chairman), Mendoza, and De Leon, Jr., JJ., concur.

Buena, J., on official leave .


1 Rollo, pp. 44-55.

2 Orig. Records of Crim. Case No. 39360, pp. 157-165.

3 Id. at 1.

4 Orig. Records of Criminal Case No. 39361, p. 1.

5 Supra, note 2.

6 Id. at 165.

7 Supra, note 1 at 55.

8 TSN, May 19, 1993, p. 8.

9 People vs. Amar, G.R. Nos. 104872-73, 232 SCRA 682, 689 (1994).

10 Article 11, par. 1, Revised Penal Code; People vs. Malazzab, G.R. No. L-39136, 160 SCRA 123, 131 (1988).

11 People vs. Sarense, G.R. No. 97433, 214 SCRA 780, 785 (1992).

12 TSN, March 30, 1993, p. 7; TSN, April 20, 1993, p. 9.

13 People vs. Crisostomo, G.R. No. L-38180, 108 SCRA 288, 298 (1981).

14 People vs. Macariola, G.R. No. L-40757, 120 SCRA 92, 101 (1983), citing People vs. Yuman, G.R. No. 43469, 61 Phil. 786 (1935).

15 U.S. vs. Banzuela, G.R. No. 10172, 31 Phil. 564, 580 (1915).

16 L. B. Reyes. THE REVISED PENAL CODE Book I 169 (13th ed. 1993).

17 Id. at 170.

18 Supra, note 1 at 163.

19 Salcedo vs. People , G.R. No. 137143, December 8, 2000, p. 11, citing People vs. Albao, G.R. No. 117481, 287 SCRA 129 (1998); People vs. De la Cruz, G.R. Nos. 109619-23, 291 SCRA 164 (1998); People vs. Borreros, G.R. No. 125185, 306 SCRA 680 (1999).

20 People vs. Abagon, G.R. No. 68940, 161 SCRA 255, 261 (1988).

21 People vs. Baltar, G.R. No. 125306; December 11, 2000, p. 7; People vs. Delos Santos, G.R. No. 132123, November 23, 2000, p.15, citing People vs. De la Rosa Jr., G.R. No. 133443, 341 SCRA 425 (2000).

22 People vs. Bartolay, et al., G.R. No. L-36610, 42 SCRA 1, 7 (1971); People vs. Villagonzalo, G.R. No. 105388, 238 SCRA 215, 230-231 (1994).

23 People vs. Dela Cerna, G.R. No. L-20911, 21 SCRA 569, 590-591 (1967); People vs. Agbuya, G.R. Nos. 36366-68, 57 Phil. 238, 242 (1932).

24 People vs. Baltar, Jr., G.R. No. 125306, December 11, 2000, pp. 8-9, citing People vs. Sumalpong, G.R. No. 124705, 284 SCRA 464 (1998).

25 People vs. Tolentino, G.R. No. L-29419, 40 SCRA 514, 519 (1971); People vs. Torejas, G.R. No. L-29935, 43 SCRA 158, 172 (1972); People vs. Elefao, Jr., G.R. No. L-32573, 125 SCRA 702, 714 (1983).

26 People vs. Tambis, G.R. No. 124452, 311 SCRA 430, 440 (1999).

27 People vs. Sakam, G.R. No. 41566, 61 Phil. 27, 34-35 (1934).

28 Supra, note 1 at 54.

29 Id. at 161.

30 People vs. Cayabyab, G.R. No. 123073, 274 SCRA 387, 404 (1997); People vs. Verde, G.R. No. 119077, 302 SCRA 690, 706 (1999).

31 TSN, May 11, 1993, pp. 3-7.

32 Ibid.


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