PEOPLE OF THE PHILIPINES, PLAINTIFF-APPELLEE, VS. FLORENCIO ORDIALES, DEFENDANT-APPELLANT.

Direct appeal to this Court in view of the capital punishment
imposed against accused-appellant, Florencio Ordiales, by the Court of First Instance of Rizal, Branch VII, Pasay City, in
its Criminal Case No. 8114-P.  The dispositive portion of the said court’s decision follows:

“WHEREFORE, this court after having thus considered very
carefully the evidence of the pro­secution and the defense, both testimonial
and documentary, and the exhaustive Memorandum of the Defense, finds accused
FLORENCIO ORDIALES guilty beyond reasonable doubt of the crime of murder,
punishable under Art. 248 of the Revised Penal Code, committed with the
aggravating and the mitigating circumstances above mentioned, and hereby
sentences him to suffer the penalty of death
in the manner provided by law, to in­demnify the heirs of the deceased Vicente Bayona in the amount of TWELVE THOUSAND PESOS (P12,000.00)
and to pay the costs.”

The Amended Information charged accused-appellant Florencio Ordiales of the crime
of murder committed as follows:

“That on or about the 4th day of November, 1968, in Pasay City, Philippines, and within the jurisdiction of
this Honorable Court, the abovenamed accused, Florencio Ordiales y Abaro, being then a Confidential Agent of the City
Mayor, Pasay City, duly appointed and qualified as
such taking advantage of his public position with deliberate intent to kill,
and with evident premeditation, and treachery aforethought, suddenly and
unexpectedly, did then and there wil­fully,
unlawfully and feloniously attack, assault and shoot for several times on
the vital parts of the body, unarmed Vicente Bayona,
with a carbine the herein accused was then provided with, which
treacherous acts tended to directly and specially insure its execution,
without risk to himself, from the defense that Vicente Bayona
may make, thereby inflicting upon the latter several mortal wounds, which
caused his instantaneous death.

That at the time of the commission of this offense the accused-Florencio Ordiales y Abaro was provided with a motor vehicle, which he took
advantage of, to facilitate his escape from the scene of the crime.

All contrary to law, with the qualifying circums­tance of alevosia, and the aggravating circumstances of (1) his
public position, (2) evident premeditation, and (3) the use of a motor vehicle.”

The evidence for the prosecution shows that on 4 November 1968,
at 5:30 in the afternoon, Vicente Bayona, with two
companions, Daniel Brown, Jr., and Rolando Cruz, were at the airconditioned room of Nad’s
restaurant, Libertad Street, Pasay
City.  While they were starting to drink pepsi-cola and gin, accused-appellant Florencio
Ordiales entered, asking Vicente Bayona,
“Sino ba ang minumura mo?” immediately
firing at the latter a U. S. carbine, caliber .30, in rapid succession.  The victim was unable to answer because he
was hit.  Accused-appellant then put down
his firearm to look at Bayona, after which he left
the restaurant and boarded a yellow jeep parked outside.  Two other persons were in the said jeep by
the names of Bayani and Magsakay.

Daniel Brown, Jr., ran away after the first shot, while the
victim’s other companion, Rolando Cruz, was literally frozen with fear in his
seat.  Vicente Bayona
died of multiple gunshot wounds at 6:10 that same afternoon upon arrival at San
Juan de Dios Hospital, Pasay
City.^[1]
The assailant shot him at a distance of two and a half (2 1/2) yards, more or
less.^[2]
The slaying is admitted by the accused.

The defense’s own version of the incident was that
accused-appellant saw Lt. Delfin Hernandez at the
lobby of the Pasay City Hall in the morning of 4
November 1968.  The former asked the
latter if he could have his carbine M-1
converted to an automatic one or M-2. 
Since the accused-appellant did not have the carbine with him at the
time, they agreed to meet at Nad’s restaurant at 5:30
that afternoon so he could deliver the carbine.

At past five of the said afternoon, accused-appellant went to the
Nad’s restaurant to keep the appointment.  While accused-appellant was looking for a
place to sit in the airconditioned room, Vicente Bayona whistled at him, motioning him to come near.  As soon as accused-appellant approached Bayona, the latter said, “Tell the mayor that next
year he will lose.” Accused-appellant answered, “Huwag
naman ganon.  Bakit hindi kayo magkasundo.  Dati kayo magkasama.” Vicente Bayona,
however, shouted, “Basta sabihin mo talo na siya sa isang taon!”
Accused-appellant shouted back, saying, “Why don’t you tell him?  You are sending me to tell him!”

Vicente Bayona suddenly stood up with
hands on waist and was able to approach accused-appellant, holding the barrel
of the latter’s carbine.  The victim’s
two companions also rushed at accused-appellant, whereupon, the latter stepped
backward and fired at Bayona.  The said companions ran away after Bayona was fired upon.

Accused-appellant left the restaurant after Bayona
fell and took a taxi at Taft Avenue near Pasay
Commercial Center with the intention of surrendering to the mayor.  In the corner of Malibay,
accused-appellant met Francisco Villa (who was going to be appointed Chief of
Police of Pasay City later), so he stopped and told
him that he shot somebody and that he
was going to surrender.  Villa, however,
advised him to surrender instead to the NBI. 
Accused-appellant, accompanied by Mr. Villa, then proceeded to Bankal to see NBI agent Mr. Aragon.  Mr. Aragon, who arrived in his house later
was told what happened.  He, in turn,
accom­panied accused-appellant, to the NBI where the latter surrendered to one
Mr. Bayani with the carbine used in the shooting.

The court a quo found the aggravating circumstances of (a)
abuse of official position, (b) evident premeditation, and (c) use of superior
force.  However, it considered the use of
superior force as absorbed by the qualifying circumstance of treachery.  The said court also found the mitigating
circumstance of voluntary surrender, offsetting one of the two remaining
aggravating circumstances.  Hence, the
death penalty was imposed.  The use of
motor vehicle which was likewise alleged in the Amended Information was not
appreciated by the court a quo for the reason that the jeep was not used
as a means to commit the murder.

The following are assigned as errors in accused-appellant’s
brief:  The lower court erred in –

1.   
Convicting accused-appellant of
the crime of murder qualified by treachery;

2.   
Giving full credence to the
testimonies of the wit­nesses for the prosecution which are full of serious and
material contradictions, inconsistencies and manifestly false assertions;

3.   
Sentencing accused-appellant to
suffer the penalty of death;

4.    Finding that the aggravating circumstances of (1) abuse of Official position and (2)
evident premeditation are present in the commission of the offense;

5.   
Not acquitting accused-appellant
of the crime charged on the ground of self-defense; and

6.   
Not acquitting accused-appellant
on the ground of reasonable doubt.

There is nothing on record to warrant a reversal of the court a
quo’s finding that treachery attended the killing of the deceased.  The sudden and unexpected shooting of the
victim with a carbine constituted treachery. 
Authorities are clear that even when in attack or aggression is made
face to face, treachery or alevosia is
nevertheless present when the attack is sudden and unexpected to the point of
incapacitating the victim to repel or
escape it.^[3] Accused-appellant’s account as to what precipitated the shooting could not be
believed.  The statement, “Tell the mayor that next year he
will lose,” or “Basta sabihin mo talo na sa isang
taon“, could not be attributed to the
deceased, who, being an avid compaigner of
local mayoralty candidates, at least from
Mayor Cuneta’s time up to the election of Mayor Jovito
Claudio, certainly could not have ignored that 1969 was not a mayoralty
election year, On the other hand, it is admitted by the prosecution that the
deceased and his twin brother, Reynaldo, had repeatedly slandered the incumbent
mayor, since the latter disregarded the promise to make Reynaldo the chief of
his confidential agents stating that the promise was merely a joke.  In fact, on the afternoon before the shooting
and when the brothers met at Shanghai restaurant, Pasay
City, the victim told Reynaldo that he slandered the mayor again because the
mayor refused to sign something which the victim asked him to sign.  The version of the prosecution that it was
accused-appellant who first confronted the victim with, “Sino ba ang minumura
mo?” becomes more believable in the light of what happened, and
especially since it is not dis­puted that accused-appellant was present at
least in one of those occasions when the mayor was slandered.  Defense witness Pedrito
Caballes impliedly so admitted by quoting Vicente Bayona as saying to accused-appellant before he was shot,
“huwag mo akong
pakialaman.” Finally, prosecution witnesses
Daniel Brown, Jr., and Rolando Cruz corroborated each other in quoting
accused-appellant as having said, “Sino ba
and minumura mo?” as against the lone denial
of accused-appellant.

It is true that the deceased had two companions while
accused-appellant was alone, but superiority in number does not necessarily
mean superiority in strength.^[4]
These three men were all seated and unarmed, and their movement was impeded by
the table at which they sat.  Their
positions even gave accused-appellant more advantage especially since he
carried two firearms, a carbine and a revolver. 
However, as correctly held by the lower court, abuse of superior
strength is absorbed in treachery and is inherent in the same.^[5]

It is accused-appellant’s contention, and error was assigned in
this regard, that the testimonies of the prosecution witnesses should not be
given full credence because of alleged serious and material contradictions,
inconsistencies and manifestly false assertions.  Our review of the evidence demonstrates that
the contradictions were not on material points. 
The rule is settled in this jurisdiction that appellate courts seldom
disturb a trial court’s appreciation of the credibility of witnesses, in view
of its opportunity to observe the demeanor and conduct of the witnesses while
testifying on the witness stand; and that said appreciation of the court below
will generally be accepted and acted upon favorably by the appellate courts,
unless there is a material circumstance which consequently might affect the
result of the case.^[6]
As already noted earlier, the exception does not obtain in this case, hence,
the finding of treachery is sustained.

We come next to the question of whether the aggravating
circumstances of abuse of public position and evident premeditation really
attended the commission of the crime as found by the court a quo.  For abuse of public position under Article
14, paragraph 1, Revised Penal Code,^[7]
to be appreciated, it is not only necessary that the person committing the crime
be a public official; he must also use the influence, prestige or ascendency which such office gives him as a means by which
he realized his purpose.  The essence of
the matter is presented in the inquiry, “Did the accused abuse his office
in order to commit the crime?”^[8]
It is not shown that accused-appellant took advantage of his position as
confidential agent of Mayor Claudio in shooting the victim, or that he used his
influence, prestige or ascendency” in killing
the deceased.  Accused-appellant could
have shot Bayona without having occupied the said
position.  Thus, in the absence of proof
that advantage was taken by accused-appellant of his being a confidential
agent, the aggravating circumstance of abuse of public position could not be
properly appreciated against him.  The So­licitor
General also concedes this.^[9]
The court a quo’s finding that the said aggravating circumstance is
present can not, therefore, be sustained.

The aggravating circumstance of evident premeditation has not likewise
been proven beyond reasonable doubt.  The
mere fact that accused-appellant killed Bayona does
not necessarily prove in itself that the former hatched a plan to kill the
latter.  As there was no direct evidence
of the planning or preparation, the court’s conclusion may not be endorsed,
since it is not enough that premeditation be suspected or surmised, but the
criminal intent must be evidenced by notorious outward acts evincing the
determination to commit the crime.^[10]
Much less is there a showing of opportunity for reflection and the per­sistence
in the criminal intent that characterize the aggravating circumstance of
evident premeditation.^[11]
The court a quo therefore erred in appreciating the said aggravating
circumstance against accused-appellant. 
The Solicitor General likewise concedes this finding.^[12]

As regards the plea of self-defense under Article 11, paragraph
1, of the Revised Penal Code, the rule is that the same must be proved by clear
and convincing    evidence.^[13]
The three concurring requisites should be present, namely, (a) unlawful aggres­sion
on the part of the victim; (b) reasonable necessity of the means employed to
repel the aggression; and (c) lack of sufficient pro­vocation on the part of
the accused.^[14]

We find no proof of unlawful aggression on the part of the
victim.  He was seated and unarmed.  This Court finds it hard to believe that he
suddenly stood up with hands at his waist, which allegedly led accused-appellant
to think that the former would draw a gun. 
The victim, fully aware that he was not armed, and knowing that his
adversary carried a carbine, would not bluff at so great a risk.  We find it still harder to believe that the
victim arose and approached or rushed at accused-appellant, and suddenly held
the barrel of the latter’s carbine without first being shot at, for the reasons
that (a) a table obstructed his way;^[15]
(b) accused-appellant was at least 2 1/2 yards away from the victim,^[16]
which distance could not have been easily and quickly traversed from where the
alleged aggressor was seated, considering the obstruction; and (c) according to
his own version, accused-appellant already warned that he would shoot if the
victim approached him.  It would have
been foolhardy and suicidal for the victim to act in the manner that accused-appellant
would like this Court to believe, knowing that the accused-appellant was poised
to shoot if the victim should make a move to approach him, and this holds
likewise of the victim’s companions, who were not themselves armed.  Yet, accused-appellant would like Us to
believe that he shot the victim only after the latter held the barrel of the
gun and only after he had first stepped backward.  The statement of Daniel Brown, Jr.,^[17]
that the victim fell from his seat to the cement floor like “a burning candle”,
belies further the claim of accused-appellant that the deceased was shot only
after he approached accused-appellant. 
Under the circumstances, accused-appellant’s plea of self-defense can
not be sustained, since he was himself the ag­gressor.

We are convinced that the guilt of accused-appellant has been
proven beyond reasonable doubt.  However,
the death penalty should be reduced in the absence of the aggravating
circumstances of abuse of public position and evident preme­ditation which were
erroneously found by the court a quo.

Under Article 248 of the Revised Penal Code,^[18]
the penalty for murder is reclusion temporal in its maximum period to
death.  There being only one mitigating
circumstance, that of voluntary surrender, and no aggravating circumstance to
offset the same, the imposable penalty is the minimum pur­suant to Article 64,
paragraph 2, of the same Code, which is the maximum period of reclusion
temporal under Article 248, supra. 
The Indeterminate Sentence Law (Act 4103, as amended by Act 4225)
applies in view of the nature of the penalty. 
Under this law, the judgment sentencing the accused to a prison term
provides for a minimum within the range of the penalty next lower in
degree to be fixed in any of its periods in the dis­cretion of the court.^[19]
Under Article 61, paragraph 3, of the Revised Penal Code when the penalty
prescribed for the crime is composed of one or two indivisible penalties and
the maximum period of another divisible penalty, as in this case, the penalty
next lower in degree shall be composed of the medium and minimum periods of the
proper divisible penalty and the maximum of that immediately following in said
respective scale.  The penalty next lower
in degree in the instant case therefore ranges from the maximum of prision mayor to the medium degree of reclusion
temporal.

FOR THE FOREGOING REASONS, the decision appealed from is
accordingly modified, sentencing accused-appellant to suffer an imprisonment of
14 years, 8 months and 1 day of reclusion temporal as minimum to 20
years of reclusion temporal as maximum Said decision is affirmed in all
other respects.  Costs against appellant.

Concepcion, C.J., Makalintal,
Zaldivar, Castro, Fernando, Teehankee,
Barredo, Villamor, and Makasiar, JJ., concur.

^[1]
See the Certificate of Post-Mortem Examination, Exhibit “O-1”, dated
5 November 1968, and the Necropsy Report, Exhibit “L”, dated 19
November 1968, both of the NBI.

^[2]
See Exhibit “A”, Statement of Daniel Brown, Jr., dated 5 November 1968, page 198, Rollo.

^[3]
See People vs. Noble, 77 Phil.
93; People vs. Pulido, et al., L-2447, 4 March
1950; People vs. Martinez
Gadinez, 106 Phil. 597.

^[4]
See People vs. Elizaga, L-2487, 18 May 1950, 86 Phil. 364.

^[5]
People vs. Redoña,
87 Phil. 743; People vs. Agustin, et al., L-18368, 31 March 1966, 16
SCRA 467, citing People vs. Tiongson,
L-1866-67, 28 November 1964.

^[6]
People vs. Braganio, et al., L-10121, 29
December 1960, citing People vs. Pinsol, et
al., L-8349, 22 January 1957.

^[7]
Art. 14, par. 1, of the Revised Penal Code, states:

“Art. 14.  Aggravating circumstances.  – The following are aggravating
circumstances:

1. That advantage be taken by the
offender of his public position.”

^[8]
U.S. vs. Rodriguez, 19 Phil. 150, cited in Padilla’s Revised Penal Code
Annotated, Book One, page 296, 1964 ed.

^[9]
Page 19, Brief for the Appellee. Thus in the case of Montilla vs. Judge Hilario,
90 Phil. 49, also a murder by a public officer, the Supreme Court ruled (at
page 52) –

“By the same token, the fact
that, as alleged, the defen­dants made use of firearms which they were
authorized to carry or possess by reason of their positions, could not supply
the required connection between the office and the crime. Firearms however and
wherever obtained are not an ingredient of murder or homicide. The crime in
question, for example, could have been committed by the defendants in the same
or like manner and with the same ease if they had been private individuals and
fired with unlicensed weapons.”

See also People vs. Pantoja, 25 SCRA 468.

^[10]
People vs. Mendova,
et al., L-7030, 31 January 1957, 100 Phil. 811.

^[11]
People vs. Custodio,
et al., L-27442, 24 October 1955, and other cases cited. See also People vs.
Cadag, L-13830, 31 May 1961.

^[12]
Pages 18-19, Brief for the Appellee.

^[13]
People vs. Berio, 59 Phil. 533.

^[14]
See People vs. Balansag, 60 Phil. 266 and Art.
11, par. 1, Revised Penal Code, supra.

^[15]
Exhibit “Q-1”, page 230, Rollo.

^[16]
Exhibit “A”, supra.

^[17]
Exhibit “A”, supra.

^[18]
Article 248 of the Revised Penal Code.

^[19]
People vs. Ducosin,
5 Phil. 109, cited in Padilla’s Revised Penal Code Annotated, Book One, page
672, 1964 ed.