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FIRST DIVISION

G.R. No. L-30302 August 14, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs. SERGIO MALIWANAG, JESUS VILLEZA, and EULOGIO JALOS, defendants, JESUS VILLEZA, defendant and appellant.

ESGUERRA, J.:

Appeal from the judgment of the Court of First Instance of Oriental Mindoro finding accused Jesus Villeza guilty of murder for the death of Esmeraldo Fernando, and sentencing him as follows: chanrobles virtual law library

WHEREFORE, accused Sergio Maliwanag and Eulogio Jalos are hereby acquitted, on ground of reasonable doubt. Accused Jesus Villeza is hereby found guilty and convicted of the crime of murder and is sentenced to suffer the penalty of life imprisonment, and condemned to pay an indemnity in the amount of TEN THOUSAND PESOS (P10,000.00) to the heirs of deceased Esmeraldo Fernando, and the costs.

There are two conflicting versions of what really happened on that fatal day of November 9, 1965, in Barrio Sta. Brigida, Municipality of Mansalay, Oriental Mindoro, when the deceased, Esmeraldo Fernando, was shot to death. According to the prosecution, at about 11:00 o'clock in the morning of election day, November 9, 1965, the accused Jesus Villeza, Eulogio Jalos, Municipal policemen, and Sergio Maliwanag, Municipal Mayor, all of Mansalay, Oriental Mindoro, were seen in front of Sta. Brigida Elementary School fully armed. Accused Jesus Villeza, in police uniform, approached the deceased, Esmeraldo Fernando, who was then standing and conversing with some people just outside the schoolhouse which was then used as polling place for Precinct No. 7 at barrio Sta. Brigida, Mansalay, Oriental Mindoro. After saying "requiza" he immediately shot the deceased notwithstanding the latter's having raised his hands. Subsequently, accused policeman Eulogio Jalos also fired a shot at Fernando, hitting him on his body. The other accused, Mayor Sergio Maliwanag, also fired his pistol at the deceased but the latter was not hit.chanroblesvirtualawlibrarychanrobles virtual law library

Upon the other hand, Jesus Villeza put up the theory of self-defense, while Eulogio Jalos and Sergio Maliwanag, denied any participation in the killing. The defense version is as follows: that shortly after the arrival of the three accused, Mayor Sergio Maliwanag and policemen Jesus Villeza and Eulogio Jalos, at Sta. Brigida Elementary School on November 9, 1965, Jesus Villeza noticed a commotion near the polling place; that thereafter Edgardo Artiza, Chairman of the Board of Election Inspectors of Precinct No. 7 of Sta. Brigida, handed to Villeza an order of arrest to be enforced against whoever was creating trouble; that Villeza saw the deceased, Esmeraldo Fernando, dragging by the neck one Salvador Balani; that when Villeza approached Fernando to arrest him, the latter swung a balisong knife at him but only his uniform was hit; that at this juncture Villeza shot Fernando and when Fernando attempted to stab him again, Villeza shot the deceased for the second time; that at this precise moment, accused Eulogio Jalos fired his gun in the air to scare the relatives of the deceased who were approaching Villeza; that Mayor Maliwanag was at the Nacionalista Party headquarters taking his lunch when the shooting incident happened; that Jesus Villeza admitted that he was the only one responsible in inflicting the two fatal wounds that caused the death of Esmeraldo Fernando, and that he acted in complete self-defense at the time of the shooting.

After the hearing, the trial court acquitted Sergio Maliwanag and Eulogio Jalos but convicted Jesus Villeza of murder and sentenced him to reclusion perpetua (life imprisonment). Hence this appeal by Villeza.chanroblesvirtualawlibrarychanrobles virtual law library

Appellant Jesus Villeza assigned three errors allegedly committed by the trial court, as follows:

1. In finding that the balisong knife of the deceased given to Chief of Police Quejada who, in turn, gave it to Capt. Medina, was a planted or fabricated piece of evidence, along with the alleged torn shirt of Jesus Villeza, for the purpose of showing self-defense; chanrobles virtual law library

2. In not finding that Jesus Villeza acted in complete self-defense when he fatally shot and killed Esmeraldo Fernando; chanrobles virtual law library

3. In not acquitting appellant Jesus Villeza.

Ichanrobles virtual law library

As regards the first assigned error, appellant Jesus Villeza argues by quoting the following findings of the lower court, viz:

All the above circumstances bearing on the question as to whether or not victim Fernando was actually armed with a balisong knife immediately before and during the incident strongly point, in the mind of this Court, that the balisong knife given to Chief of Police Quejada, who in turn, gave it to Capt. Medina, was a planted or fabricated piece of evidence, along with the alleged torn shirt of Villeza, for the purpose of showing self-defense by accused Villeza.(page 27, decision)

He claims that from the above-quoted finding of the lower court it is admitted by the trial court that there was a balisong knife given to Police Chief Quejada who in turn gave it to Capt. Medina. However, the lower court concluded that the same was a planted or a fabricated piece of evidence, along with the alleged torn shirt of Villeza. To us this conclusion of the lower court is not supported by any evidence, oral or documentary. On the contrary, the testimony of appellant Villeza, corroborated by that of witness Salvador Balani, establishes that Esmeraldo Fernando was armed with a balisong knife which he used on that occasion in stabbing appellant Villeza who, fortunately, was only hit in his uniform which was slashed as a result thereof. This testimony was neither contradicted nor rebutted. The finding, of the lower court that the aforementioned balisong knife surrendered by Villeza was planted has simply no basis and the lower court committed an error in so concluding.chanroblesvirtualawlibrarychanrobles virtual law library

But the prosecution assails appellant's claim that the deceased was armed with a balisong knife as he (Villeza) failed to produce that knife in Court as well as the alleged receipt issued to him therefor by the police department. The prosecution relies on People vs. Saturnino, L-2972, April 29, 1955, where it was held that when the bolo allegedly wielded by the deceased was not produced in evidence, such omission renders incredible the claim of appellant that it was he who was sought to be stabbed.chanroblesvirtualawlibrarychanrobles virtual law library

We do not see eye to eye with the prosecution. There is no evidence to show that the accused was in possession of the balisong knife and had deliberately suppressed it in evidence. On the contrary it was clearly shown that the accused surrendered said balisong knife to the authorities just after the incident. ¹How could he suppress something he did not have in his possession?chanrobles virtual law library

The conclusion of the trial court that the balisong knife was a planted or fabricated piece of evidence is neutralized by the fact that the deceased, Esmeraldo Fernando, had a balisong knife on that occasion and used it against one Salvador Balani who testified to this effect and was never contradicted by anybody.chanroblesvirtualawlibrarychanrobles virtual law library

Salvador Balani said:

Q. On November 9, 1965, at about 11:00 o'clock in the morning, do you remember where you were?chanrobles virtual law library

A. I was at the polling place at Sta. Brigida.chanroblesvirtualawlibrarychanrobles virtual law library

Q. Do you know the number of the polling place (sic precinct)?chanrobles virtual law library

A. Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q. What is the number of that precinct?chanrobles virtual law library

A. Precinct No. 7, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q. Why were you in that particular place on that day?chanrobles virtual law library

A. I wanted to cast my vote, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q. Are you a registered voter of that precinct?chanrobles virtual law library

A. Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q. Were you able to vote on that particular day?chanrobles virtual law library

A. No, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q. Why were you not able to vote?chanrobles virtual law library

A. I am a Nacionalista and my brother is a Nacionalista leader. I was not allowed to cast my vote by Esmeraldo Fernando.chanroblesvirtualawlibrarychanrobles virtual law library

Q. Do you know the first name of this Esmer Fernando?chanrobles virtual law library

A. Esmeraldo Fernando, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q. What happened? Tell us if any thing occurred?chanrobles virtual law library

A. After having been seen by the elder brother of Esmeraldo Fernando, I was kicked by the former on my belly.chanroblesvirtualawlibrarychanrobles virtual law library

Q. Do you know the name of that brother of Esmeraldo, who kicked you? chanrobles virtual law library

A. Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q. What is the name?chanrobles virtual law library

A. Valerio Fernando, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q. What happened after Valerio Fernando, as you said, kick you?chanrobles virtual law library

A. I was boxed by Esmeraldo Fernando here, (Witness indicating a place immediately below the left ear) and then said Esmeraldo Fernando again struck me with the handle of the balisong knife on the right shoulder.chanroblesvirtualawlibrarychanrobles virtual law library

Q. What happened next?chanrobles virtual law library

A. After having been struck with the handle of the balisong knife, Valerio Fernando run and got a piece of bamboo and he hit me on my left arm and my right side of my waist. (t.s.n. pages 14-15, Vol. 7; emphasis supplied)

This testimony of witness Salvador Balani is supported by that of Dr. Esperidion Sucgang, the physician who treated Balani after he was mauled by the deceased.chanroblesvirtualawlibrarychanrobles virtual law library

Esperidion Sucgang said:

Q. This first finding that you had in this exhibit - To whom it may concern: "This is to certify that Salvador Balani, 25 years old, married and resident of Pasig, came to my house for treatment for the following: Swelling with ecchymosis about two inches in diameter on the lower lateral portion of the right neck. Swelling with slight ecchymosis and scratches about one inch in diameter on the upper portion of the left shoulder. Slight swelling on the left buttock. He complains of pain all over the body and severe headache, and difficulty of opening his mouth. He could hardly talk. It will take from five to seven days treatment to have these healed." Will you tell us, doctor, what is the possible cause of this wound No. 1 - swelling with ecchymosis about two inches in diameter on the lower lateral portion of the right neck? .chanroblesvirtualawlibrarychanrobles virtual law library

A. It may be due to hard instrument, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q. When you say "hard instrument" you mean to say that instrument hit the portion of the body of Balani as appearing herein?chanrobles virtual law library

A. Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q. Could this be possibly be caused when a closed balisong is being stabbed on the particular portion of the body?chanrobles virtual law library

A. Yes, sir. (t.s.n. page 3, Vol. 8)

As to the torn police uniform shirt of appellant, the record shows that when he was asked to wear or fit said shirt, it was observed that it was loose and did not closely cling to his body. Jesus Villeza testified:

A. If I show you a khaki cloth can you identify the same? .chanroblesvirtualawlibrarychanrobles virtual law library

Q. Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

A. I am showing to you this khaki upper shirt which has already been marked Exh. "4", please tell us if you know the same?chanrobles virtual law library

Q. (Witness examining Exh. "4") This is it, sir.chanroblesvirtualawlibrarychanrobles virtual law library

A. At this stage, your Honor, I will request that the witness wear the same for demonstration, if possible, your Honor.

Court: Granted.chanroblesvirtualawlibrarychanrobles virtual law library

(Witness putting on the shirt, Exh. "4", tacking the same inside his pants) chanrobles virtual law library

xxx xxx xxx

Atty. Andrada (counsel for the accused)

At this stage, your Honor, to make a clarification as to the nature of what the accused was then wearing, his under shirt, I want it to appear of record as to the undershirt not being worn by the accused, Villeza. I notice that shirt is loose, not too close to the body. (t.s.n. pages 15 & 75, Vol. 10, emphasis supplied)

From the foregoing, it may be concluded that when Esmeraldo Fernando made the swinging stab blow against appellant Jesus Villeza, only the latter's police uniform shirt was caught by the blade of the knife because the shirt did not closely fit his body.chanroblesvirtualawlibrarychanrobles virtual law library

There are eloquent proofs that undercut the finding of the lower court that the balisong knife and the torn police uniform were planted or fabricated pieces of evidence. We reject its conclusion on this point as unsupported and unfounded.chanroblesvirtualawlibrarychanrobles virtual law library

IIchanrobles virtual law library

The second issue to be resolved is whether or not Jesus Villeza acted in complete self-defense when he fatally shot and killed Esmeraldo Fernando.chanroblesvirtualawlibrarychanrobles virtual law library

Under Article 11 of the Revised Penal Code, criminal liability is not incurred by:

Any one who acts in defense of his person or rights, provided that the following circumstances concur:chanrobles virtual law library

First: Unlawful aggression;chanrobles virtual law library

Second: Reasonable necessity of the means employed to prevent or repel it;chanrobles virtual law library

Third: Lack of sufficient provocation on the part of the person defending himself.

That it was not appellant but the deceased, Esmeraldo Fernando, who was the aggressor, appellant Villeza calls the attention of this Court to the following indisputable facts:

(a) That appellant Jesus Villeza was wearing his police uniform at the time of the incident in question; chanrobles virtual law library

(b) That from the findings of the lower court it was conclusively shown that there was no conspiracy among Jesus Villeza and co-accused Jalos and Maliwanag; .chanroblesvirtualawlibrarychanrobles virtual law library

(c) That appellant Villeza, according to the findings of the lower court, only followed the order of the Chairman of the Board of Inspectors, Mr. Edgardo Artiza, the head teacher of Bo. Sta. Brigida, who positively stated under oath that he ordered the herein appellant to arrest the person or persons who were making trouble, which order of arrest was marked as Exhibit "3-A". That, in pursuance of the order of arrest issued by the Chairman of the Board of Inspectors, Villeza confronted the deceased Esmeraldo Fernando while he was dragging Salvador Balani on that particular date of November 9, 1965, and the testimony of Salvador Balani as to the assault against him by the deceased had never been rebutted or contradicted by the prosecution; chanrobles virtual law library

(d) That there is no evidence presented by the prosecution showing that Esmeraldo Fernando was not armed with a balisong knife on that occasion; hence the positive testimony of appellant Jesus Villeza corroborated by defense witness Salvador Balani that the deceased Fernando was then carrying such knife deserves more weight than the finding of the lower court that the balisong knife surrendered by appellant Villeza was planted.

The facts above set forth show that the deceased, Esmeraldo Fernando, instead of appellant Villeza, was the aggressor as he used his balisong knife against both Salvador Balani and the appellant.chanroblesvirtualawlibrarychanrobles virtual law library

There was reasonable necessity of the means employed to repel the aggression from the deceased as the appellant's only recourse in defending himself was to use his service pistol against one who wielded a deadly balisong knife.chanroblesvirtualawlibrarychanrobles virtual law library

Appellant acted in compliance with the lawful order of the Chairman of the Board of Inspectors to arrest those who were creating trouble and he was simply discharging his duties as a peace officer when he attempted to arrest the deceased who, together with his brother, was then maltreating Salvador Balani. This fact was never refuted or denied by any of the prosecution witnesses. These circumstances indicate that no provocation whatsoever came from appellant Jesus Villeza, and that he acted in complete self-defense when he fatally shot Esmeraldo Fernando.chanroblesvirtualawlibrarychanrobles virtual law library

The prosecution claims further that since appellant Jesus Villeza invoked self-defense, it was incumbent upon him to prove by clear and convincing evidence that the killing was justified, otherwise conviction would follow from his admission that he killed the victim; that appellant miserably failed to produce such clear and convincing evidence to support his plea of self-defense, and that it was proven that the deceased was simply standing and conversing with someone when appellant approached him saying, "requiza" and immediately fired at him when the hands of the deceased were already raised, thereby committing murder qualified by treachery.chanroblesvirtualawlibrarychanrobles virtual law library

The circumstances leading to the shooting incident are undisputably as follows: that at the time the shooting took place, appellant who was a peace officer was in full police uniform; that before the actual shooting, the deceased was making trouble near the polling place of Precinct No. 7, Sta. Brigida Elementary School, by assaulting and dragging one Salvador Balani; that the Chairman of the Board of Inspectors of said Precinct gave appellant an order of arrest (Exhibit "3-A") ²to be carried out against whoever was causing trouble; that in the performance of his duty appellant attempted to arrest the victim but instead of surrendering to the former the latter opened a balisong knife and attacked the appellant; that it was only the police uniform that was caught by the blow from the deceased and that appellant shot the victim when the latter missed the former in stabbing him; that when the victim attempted again to stab the accused, he fired at him again, and that two gunshot wounds caused the death of the victim.chanroblesvirtualawlibrarychanrobles virtual law library

Under the above circumstances, appellant's version meets the requirement that evidence to establish self-defense must be clear and convincing. The unlawful attack perpetrated against appellant by the victim when he resisted the attempt of the appellant as a peace officer to arrest him for creating trouble near the polling place by drawing a balisong knife and swinging it against the appellant shows that the victim was determined to kill the accused. If the victim had no intention to harm the appellant, he would not have drawn his balisong knife nor resisted arrest. There was, therefore, actual aggression and danger to the life and safety of the appellant when he shot the victim to death.chanroblesvirtualawlibrarychanrobles virtual law library

The evidence for the prosecution falls short of that requisite sufficiency and certainty which can persuade the human mind to agree with the conclusion of guilt. .chanroblesvirtualawlibrarychanrobles virtual law library

What we said in People vs. Alto, L-18660-61, November 29, 1968, 26 SCRA p. 342, 365, is indeed relevant hereto:

As a salutary proposition, this Court usually desists from disturbing the conclusions of the trial court on the credibility of witnesses, in deference to the rule that the lower Court, having seen and heard the witnesses and observed their demeanor and manner of testifying, is in a better position to appreciate the evidence. But this doctrine must bow to the superior and immutable rule the guilt of the accused must be proved beyond a reasonable doubt, because the law presumes that a defendant is innocent, and this presumption must prevail unless overtuned by competent and credible proof to sustain a moral certainty as to the guilt of the appellant. (Emphasis supplied)

Discussion of the third and last assigned errors has become unnecessary in view of the conclusion we have reached. .chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the appealed judgment is reversed and the accused-appellant, Jesus Villeza, is hereby acquitted and ordered released from the custody of the law. .chanroblesvirtualawlibrarychanrobles virtual law library

Costs de oficio. .