I. THAT THE LOWER COURT ERRED IN CONSIDERING THAT THE APPELLANT DID NOT ACT IN SELF-DEFENSE;chanrobles virtual law library

II. THAT THE TRIAL COURT ERRED IN FINDING THAT IT WAS INCREDIBLE FOR THE DECEASED CARLOS RILLAMAS TO MAKE A GRAB FOR THE RIFLE IN THE HANDS OF THE APPELLANT; ANDchanrobles virtual law library

III. THAT THE TRIAL COURT ERRED IN FINDING THE APPELLANT GUILTY OF MURDER AND NOT ACQUITTING HIM; OR IN THE ALTERNATIVE, OF NOT CONVICTING HIM ONLY TO A PENALTY ONE DEGREE LOWER THAN THE PENALTY FOR HOMICIDE OR PRISION MAYOR, IN THE DEGREE THAT THIS COURT MAY DEEM PROPER.chanroblesvirtualawlibrarychanrobles virtual law library

p. 165, Record)

We have carefully reviewed the whole evidence on record, and We are sufficiently convinced that counsel's contentions do not have support in any credible and reliable portion thereof. We find prosecution's theory, insofar as appellant is concerned, ¹ to be fully supported by the testimonies of the witnesses of the People. On the other hand, it is not difficult to see that appellant has failed to prove his claim of self-defense, which he is supposed to show by clear and convincing evidence, considering he does not deny having caused the death of his victim. (Peo. v. Berio, 59 Phil. 533; Peo. vs. Gimena, 59 Phil. 509; Peo. vs. Cruz, 53 Phil. 635).chanroblesvirtualawlibrarychanrobles virtual law library

Testifying for the defense, Witness Alejandro Riglos, who at the time of the incident was a policeman, like appellant was, in the town of San Vicente, Ilocos Sur, where it happened, declared:

Q When you heard that horse drawn bicycle that was approaching, what did Lupo Riduca and you do?chanrobles virtual law library

A As the calesa was approaching our yard we went out from the gate and as we step out from our gate the calesa reached opposite our house and Lupo Riduca said to the rig driver, "Tata, may I ride in your calesa?" As the horse was somewhat fast the calesa was not able to stop immediately so that it passed by the house for some meters. So Lupo Reduca had to walk and go to the calesa.chanroblesvirtualawlibrarychanrobles virtual law library

Q By the way who was the rig driver if you remember?chanrobles virtual law library

A Gaspar Advincula, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q On what side of the calesa did Lupo Reduca go?chanrobles virtual law library

A On the right side, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q To what direction was the calesa going then?chanrobles virtual law library

A Northward, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Going to the direction of San Sebastian?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q When the calesa stopped and Lupo Reduca reached the right side of the calesa, what happened next?chanrobles virtual law library

A When Lupo Riduca has reached the right side of the calesa and was in the act of placing his feet on the ascending step of the calesa, Carlos Rillamas said, "So leche, after all you want something from us" and Lupo Riduca replied, "What a fool are you to say that". At that instant Carlos Rillamas grabbed or took hold of the muzzle of the gun or rifle held by the accused Riduca and all of a sudden the gun went off and it fired.chanroblesvirtualawlibrarychanrobles virtual law library

Q And after the first gun report, what transpired next?chanrobles virtual law library

A The passengers of the calesa jumped down from the calesa, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And while the other passengers were jumping out the calesa, what was Lupo Riduca and Carlos Rillamas doing?chanrobles virtual law library

A After the first gun report Carlos Rillamas was still holding the muzzle of the gun of Lupo Riduca and Rillamas pull the gun to his side reclining and again the gun went off.chanroblesvirtualawlibrarychanrobles virtual law library

Q Where were you when the two firings occurred in relation to the calesa?chanrobles virtual law library

A I was at the back of the calesa somewhere east, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q How far?chanrobles virtual law library

A Around 3 meters, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q After the second fire of the gun, what did Lupo Riduca do, if any?chanrobles virtual law library

A After the second firing, I went to Lupo Riduca and said, "What is it that happened, pari," and "this is what had happened pari and I am surrendering to you," he said. So I brought Lupo Reduca to our municipal mayor then. Pp. 31-34, t.s.n., Feb. 11, 1964).

This version was corroborated by no other witnesses except appellant who testified thus:

ATTY. TAGAYUNA:chanrobles virtual law library

Q Before Carlos Rillamas took hold of the barrel of your rifle, what happened, if any?chanrobles virtual law library

A When he took hold of the barrel of my rifle Carlos Rillamas said: "After all of you want something from us - Liche."chanrobles virtual law library

Q And when Carlos Rillamas uttered those words and at the same time hold of the barrel of your gun, what did he do, if any?chanrobles virtual law library

A He said: "You are really a fool - Loco," and then, I removed the safety lock of my gun, and then I fired.chanroblesvirtualawlibrarychanrobles virtual law library

Q What was Carlos Rillamas doing at the time you were moving the safety lock of your rifle, and when you fired the gun?chanrobles virtual law library

A He grabbed the gun with a strong force and I was afraid if he might grab the gun from me and I will be in danger.chanroblesvirtualawlibrarychanrobles virtual law library

Q When the gun fired, what was Carlos Rillamas doing?chanrobles virtual law library

A He was still grabbing the gun from me, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And, because Carlos Rillamas was still grabbing the gun from you, what did you do?chanrobles virtual law library

A As he was grabbing the gun, sir, I load my gun again and fired.chanroblesvirtualawlibrarychanrobles virtual law library

Q After having fired the second time, what happened to Carlos Rillamas?chanrobles virtual law library

A After the second shot, sir, Carlos Rillamas was no longer holding the gun and he was lying frustrate in the calesa, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And what did you do after that?chanrobles virtual law library

A After the incident, sir, I went to surrender myself to Alejandro Riglos. (Pp. 9-11, t.s.n., Feb. 24, 1964).

xxx xxx xxx

COURT:chanrobles virtual law library

Q In all, how many passengers were there in the calesa?chanrobles virtual law library

A If I am not mistaken, sir, they were five (5) or six (6) including the rig driver.chanroblesvirtualawlibrarychanrobles virtual law library

Q So, the rig was already filled-up with passengers when you stopped it, is it not ?chanrobles virtual law library

A There were already passengers, sir, but the rig was not yet fully loaded, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Now, when you stopped the calesa, and when you wanted to board it, you know at that precise moment that Silvestre Advincula and Teodulo Riveral were passengers, and these two persons - Silvestre Advincula and Teodulo Riveral - were the ambushers of Petronio Rigunay?chanrobles virtual law library

A I know them long time ago that they were the ambushers because they were on trial before the Court, sir, and they had been sentenced already.chanroblesvirtualawlibrarychanrobles virtual law library

Q Where was Carlos Rillamas seated while the calesa was proceeding northward?chanrobles virtual law library

A He was at the center, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q So, he was at the center of some passengers, is that what you mean?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And you were on the right side when you wanted to board the rig, or the calesa, is that correct?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q You were at the right side of the rig?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q So, there was a passenger between you and Carlos Rillamas?chanrobles virtual law library

A What I mean to say, Your Honor, is that Carlos Rillamas was seated between two (2) passengers at the back and the rig driver, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q So, Carlos Rillamas was at the back of the calesa seated between the two passengers?chanrobles virtual law library

A Carlos Rillamas was seated between the passengers at the back and the rig driver, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And who were beside Carlos Rillamas?chanrobles virtual law library

A There were no person seated beside him, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q How many passengers were at the back of the calesa?chanrobles virtual law library

A There were three (3) passengers at the back, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And in front of them was occupied by Carlos Rillamas alone?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And the rig driver was at the front seat, just behind the horse?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Was there any passenger beside the rig driver?chanrobles virtual law library

A There was, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Who?chanrobles virtual law library

A I cannot remember the name, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Now when you approached the calesa, where was your rifle?chanrobles virtual law library

A My rifle was on my right shoulder, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q You mean to say that the rifle has a belt - sling belt?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And then the rifle was on your shoulder stock to your shoulder?chanrobles virtual law library

A It was on my right shoulder arm. It was not sling, but I was on a right shoulder arm, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q So, when you stopped the calesa, you were holding the rifle parallel to the ground, is that what you mean?chanrobles virtual law library

COURT INTERPRETER: (Describing the position of the witness)chanrobles virtual law library

The witness stood up and indicating with his right forearm parallel to the ground, showing that the rifle was held parallel to the ground.chanroblesvirtualawlibrarychanrobles virtual law library

Q Where was that rifle pointed, to the north or towards the calesa?chanrobles virtual law library

A When I was walking, the direction of the rifle was southward, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And then when you stopped the calesa, where was the rifle pointed? To what direction? To the direction of calesa, to the north, or to the south direction?chanrobles virtual law library

A When I attempted to board the calesa, sir, my left hand took hold of the muzzle of the gun and my right arm took hold of the calesa.chanroblesvirtualawlibrarychanrobles virtual law library

Q Now, how far was the distance between you and Carlo Rillamas when you first boarded the calesa, can you estimate?chanrobles virtual law library

A It was very near already, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q The question of the Court is the distance between you and Carlos Rillamas when you were boarding the calesa?chanrobles virtual law library

A It was near, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q How far? Can you not calculate?chanrobles virtual law library

A From here up to there, sir.chanroblesvirtualawlibrarychanrobles virtual law library

COURT INTERPRETER:chanrobles virtual law library

The witness indicating a distance of a foot.chanroblesvirtualawlibrarychanrobles virtual law library

Q That was when one of your feet was already on the stirrup of the calesa?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And at what precise moment, you were holding the rifle with your left hand?chanrobles virtual law library

A Yes, Sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And the sling of the rifle was around your shoulder?chanrobles virtual law library

A No, sir. I was holding the rifle.chanroblesvirtualawlibrarychanrobles virtual law library

Q Was there any passenger directly in front of Carlos Rillamas?chanrobles virtual law library

A Yes, sir. The rig driver and one passenger.chanroblesvirtualawlibrarychanrobles virtual law library

Q And the stirrup of the calesa was located on the side, below the side of the front seat of the calesa where the rig driver was sitting?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

COURT: (To the Fiscal)chanrobles virtual law library

All right, proceed, Fiscal.chanroblesvirtualawlibrarychanrobles virtual law library

FISCAL BRILLANTES:chanrobles virtual law library

Q Now, with that position that you had described as you were boarding the calesa, Carlos Rillamas was seated beside rig the driver, isn't it?chanrobles virtual law library

A No, sir. Carlos Rillamas was seated behind the rig driver.chanroblesvirtualawlibrarychanrobles virtual law library

Q So that the rig driver was very near you already at that very moment that you were boarding the calesa?chanrobles virtual law library

A The one beside the rig driver was the one near to me, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q So that the one beside the rig driver, which according to you, you cannot remember his name was already side beside with you at that moment?chanrobles virtual law library

A No, sir, because of the incident that happened.chanroblesvirtualawlibrarychanrobles virtual law library

Q The question is: Before any firing occurred, that person beside the rig driver was side by side with you at the time you were in the act of boarding the calesa?chanrobles virtual law library

A I cannot remember anymore, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q You cannot also remember that one of those passengers was seated in front to the left side of the rig driver, isn't it?chanrobles virtual law library

A I cannot remember anymore, sir, where they were seated but I know those persons who rode the calesa. (Pp. 27-34, t.s.n., Feb. 24, 1964).

xxx xxx xxx

COURT:chanrobles virtual law library

Just a moment. The Court will ask questions.chanroblesvirtualawlibrarychanrobles virtual law library

Q When you removed the safety lock of your rifle, what was your intention, or why did you do it?chanrobles virtual law library

A Because I was afraid he might grab the rifle from me, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q So, when you removed the safety lock of the rifle, he was not holding yet the rifle, that is, Carlos Rillamas did not yet hold the rifle when you removed its safety lock because you were afraid that they might grab the rifle, is that what you mean?chanrobles virtual law library

A He was in the act of grabbing, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Precisely, Carlos Rillamas was only in the act of grabbing the rifle?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Now, after you have removed the safety what period of time intervened between the removal of the safety and the first shot?chanrobles virtual law library

A The gun fired right away after the safety was removed.chanroblesvirtualawlibrarychanrobles virtual law library

Q And that first shot hit Carlos Rillamas?chanrobles virtual law library

A I cannot confirm if he was shot or not, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Now, you said that there was a second shot, what was the interval of time between the first shot and the second shot?chanrobles virtual law library

A That was a matter of moment, sir, because I loaded the rifle so fast, and he did not free his grip from the rifle.chanroblesvirtualawlibrarychanrobles virtual law library

Q When the first fire was shot, how far were you from the calesa?chanrobles virtual law library

A I was near the wheel of the calesa, sir, and my body was embracing the wheel of the calesa because Carlos Rillamas was pulling the rifle from me.chanroblesvirtualawlibrarychanrobles virtual law library

Q How long is that rifle?chanrobles virtual law library

A Like this, sir.chanroblesvirtualawlibrarychanrobles virtual law library

COURT INTERPRETER:chanrobles virtual law library

The witness indicated the length of the rifle from his feet to his waist.chanroblesvirtualawlibrarychanrobles virtual law library

WITNESS:chanrobles virtual law library

Springfield rifle, sir.chanroblesvirtualawlibrarychanrobles virtual law library

COURT:chanrobles virtual law library

Q Is it your habit when riding in a calesa you point the muzzle of your gun inside the calesa, and not at the back?chanrobles virtual law library

A While I was holding the calesa, my left hand took hold of the muzzle of the gun, and the barrel was pointed upward, sir. (Pp. 46-48, t.s.n., Feb. 24, 1964).

Such evidence, even if conceded to be true, does not make out a case of self-defense. Neither the words nor the acts attributed to the deceased in the foregoing testimonies indicate that there was any imminent and real threat or danger to the life or limb of appellant. The statement, "So leche, after all you want something from us," is far from being perilously offensive. And if, indeed, Rillamas did take hold of the barrel of appellant's rifle or even tried to grab it, We do not believe it was justified for appellant "to remove the safety lock and fire" his weapon.chanroblesvirtualawlibrarychanrobles virtual law library

In their relative positions, appellant had more freedom of action than the deceased who was sandwiched among the three other passengers, Felipe Baltazar, Silvestre Advincula and Florencio Rubianes, within the small area of the calesa in which they were apart from the fact that directly between them, sitting beside the driver, Gaspar Advincula, was the fifth passenger, Teodulo Riveral, whose position would have made it difficult for the deceased to try to snatch appellant's rifle. In other words, between the two of them, appellant had the better chance to win in the struggle for the rifle. In fact, Rillamas might have taken hold of its barrel precisely to ward off danger to himself or he could have meant to help appellant go up the calesa by pulling his rifle upward.chanroblesvirtualawlibrarychanrobles virtual law library

Under these circumstances, it is not legally possible to hold that there was aggression on the part of the deceased not even any provocation. For self-defense to be appreciated it must appear very clearly that the accused is so situated that there is reasonable probability of real danger to his life or limb because of the aggressive acts or menacing attitude of the offended party. Here there is insufficient showing of this element. The most liberal view We can take of appellant's case is that he pulled the trigger a little too early or before it was warranted for his protection.chanroblesvirtualawlibrarychanrobles virtual law library

The trial court dubbed as incredible the version of the defense. We need not go that far, for even conceding already that the incident did happen in the way appellant and his witness had related, We cannot perceive the peril which allegedly impelled appellant to fire his weapon with the intent of hitting the deceased.chanroblesvirtualawlibrarychanrobles virtual law library

In the premises, We need not perhaps consider anymore the testimony of the widow of Rillamas, Juanita Reclusado, who declared that twice before that fatal day, appellant had told her to warn her husband not to testify in the injunction case against the Vice-Mayor, the other accused here, Petronio Rigunay, who was acquitted, and other officials of the town, which warning the deceased seemingly did not heed, for he and his companions in the calesa had just attended the hearing of said injunction case and were on their way home when the incident in question took place. Nor do We need perchance to take into account the political animosities between those who were riding in the calesa and the faction of the Vice-Mayor, with whom appellant seemed to be identified, and thereby probably see the actual motive of appellant.chanroblesvirtualawlibrarychanrobles virtual law library

In brief, We are fully satisfied that the guilt of appellant has been shown beyond reasonable doubt. The trial judge before whom appellant demonstrated how he was holding his rifle as he was allegedly going up the calesa did not believe his theory of self-defense. Understandably, His Honor is in a better position than this Court to appreciate this important point. Withal, the defense has not successfully shown any reason for Us to hold differently from His Honor. And in Our own review of the evidence We have not also found any cause to do so.chanroblesvirtualawlibrarychanrobles virtual law library

The killing is clearly qualified by alevosia, the attack upon Rillamas having been done suddenly and unexpectedly with a deadly weapon, making it impossible for said victim to flee or to make defense (People vs. Pengzon, 44 Phil. 224). Therefore, the offense committed is murder. Since the appellant voluntarily surrendered, the aggravating circumstance of his having taken advantage of his position as a policeman is off-set thereby.chanroblesvirtualawlibrarychanrobles virtual law library

We find, however, that the indemnity of P6,000 adjudged by the trial court is not in accordance with existing jurisprudence which ordinarily fixes the same to be P12,000 (People vs. Pantoja, 25 SCRA 468).chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the judgment appealed from is affirmed, with the modification that the indemnity to the heirs of the deceased is increased to P12,000. Costs against appellant.