THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JESUS G. RUIZ, DEFENDANT-APPELLANT.

Automatic review of the decision of the Court of First Instance
of Agusan imposing the death penalty on the
appellant, Jesus G. Ruiz, for murder, aggravated by abuse of confidence, and
sentencing him also to pay the heirs of the deceased, Atty. Jose Ong Oh, Jr. P12,000.00 as indemnity, P176,000.00
representing lost earnings of the deceased, P50,000.00 as moral damages,
P25,000.00 as exemplary damages, and P10,000.00 as expenses of litigation, plus
costs.

The gun used in the killing, an unlicensed revolver (Exhibit
“F”), was ordered confiscated in favor of the Government.

As to how the crime was committed, and the events imme­diately
preceding and following the commission thereof, the prosecution’s version is
presented in the People’s Brief as follows:

“At about 6:30 P.M. of May 30, 1968, while accused was
downstairs, in the mezzanine of the store situated at the first floor of his
house along Mabini Street, at Nasipit,
Agusan del Norte, Raymundo Discipulo arrived thereat and after quite sometime asked
the accused whether it was true that the loading of copra on the M/V Sweet Hope
that day was given to Goring Gavero.  Expressing his surprise as he could not
believe then that it could happen because of his contract and good relation
with the deceased, the accused was only able to answer: ‘Ha?’ to Raymundo Discipulo’s query (pp.
8-10, tsn, Aug. 26, 1969).

“At about 7 o’clock
that same evening, the accused left the said store, took a tricycle and went to
the office of the Oceanic Enterprises and inquired for the deceased (pp.
287-288, tsn, April
15, 1969).  Upon being
informed by Leoncio Njai Acido, a copra sample man of the said Oceanic Enter­prises,
that the deceased was at the wharf, accused left and rode on the waiting
tricycle bound for the town (pp. 287, 289, tsn, Id.).

“At about 8:30 o’clock that same evening of May 30, 1968,
while Carmelito Omboy was
in his house fronting the plaza of the poblacion of Nasipit, Agusan del Norte, Dodong Ratilla, a nephew of the
accused, arrived and told him (Carmelito Omboy) that the accused was request­ing him to go to the
latter’s house (pp. 81, 82, tsn, Feb. 24, 1969).  Soon thereafter, Carmelito
Omboy went with Dodong Ratilla and proceeded to the accused’s
house located at a distance of only about .20 meters away and upon arrival
thereat, accused who was then sitting by the door way beside a store (p. tsn, Id.) stood up and commanded him (Carmelito
Omboy) to go to the wharf and to tell Joker (Atty.
Jose Ong Oh, Jr., the deceased) to come to his (accused’s) house because the latter wanted to talk to the
former (pp. 83, 84, 86, tsn, Id.).  Forthwith, Carmelito
Omboy along with Dodong Ratilla took a tricycle and went to the wharf, a kilometer
away, to look and fetch for the deceased (p. 87,tsn, Id.).  Sometime after their arrival at the wharf, Carmelito Omboy was able to
contact and convey the accused’s message to the
deceased who affirmatively said ‘Yes, I will be going there’ and a little later
rode in his jeep bound for the town followed by Carmelito
Omboy in a tricycle (pp. 87-89, tsn,
Id.).

“Meanwhile, and that was between 8:30 and 9:00 o’clock that
same evening of May 30, 1968, a wharf-bound cargo truck loaded with copra of
the deceased and driven by Jose Mendrez developed
engine trouble at the corner of Roxas and Mabini Streets in the poblacion
of Nasipit, Agusan del
Norte (pp. 233, 234, tsn, April 14, 1969) and stopped
along Roxas Street at a point more or less seven (7)
meters from the place where accused was sitting (p. 242, tsn,
Id.).  A short while after the said cargo
truck stopped, and while its driver Jose Mendrez was
still behind its wheel, the latter was approached by one named Charlito Cañon who said to him ‘Nong, you are called by Jesus Ruiz’, referring to the
accused.  Jose Mendrez
went down the cargo truck and proceeded to where accused was sitting outside
his store (p. 235, tsn, Id.).  Accused gave Mendrez
a glass containing Tanduay wine, a little of which
the latter drank (p. 236, tsn, Id.).  Accused inquired from Mendrez
as to the whereabouts then of the deceased. 
Mendrez answered that he does not know because
when he left the bodega, the deceased was not there (p. 237, tsn, Id.).

“At this juncture then; and upon accused’s
instructions, Charlito Cañon,
Nonoy Palabrica and another
person unloaded from the stalled cargo truck three (3) sacks of copra which
were then dropped along Roxas street at the side of
the said truck (p. 238, tsn, Id.).  Thereafter, Charlito
Cañon stood at a corner fronting Roxas street, while Nonoy Palabrica and the other
person went behind the house of the accused (p.239, tsn,
Id.).  Mendrez excused
himself and went to the truck but upon reaching the same, Charlito
Cañon told him that accused was calling for him again
(p. 239, tsn, Id.). 
So, he (Mendrez) went back to the accused who,
while holding a glass of Tanduay on his left hand and
with something protruding from his waist, told him not to go away, otherwise,
he (accused) would shoot him (p. 240, tsn, Id.).

“While Mendrez was thus being
threatened by the accused, the deceased arrived in the vicinity riding in his
jeep, but before the latter could alight therefrom,
he was approached by Charlito Cañon,
and soon thereafter, the deceased got down from his jeep and went towards the
parked cargo truck and looked over at the sacks of copra lying on the
street.  Then he proceeded to the place
where accused was (p. 241, tsn, April 14, 1969; p.
94, tsn, Feb. 24, 1969).  Taking advantage of this opportunity, Mendrez left and went towards his parked cargo truck.

“According to Carmelito Omboy who arrived at the vicinity almost at the same time
that the deceased reached the place as the latter was followed by the former
from the wharf, the deceased greeted the accused ‘Jesse, Jesse’ extending his
arms to the accused who, however, slapped them and kicked the rattan stool and
said, ‘Sit down’ to the deceased in a commanding manner (pp. 94, 95, tsn, Feb. 24, 1969); that the deceased picked up the rattan
stool and placed it in front of the accused and sat on it (pp. 96, 97, tsn, Id.); that accused demanded, ‘Why did you load without
asking permission?’ (pp. 99, 100, tsn, Feb. 25,
1969); that the deceased answered ‘Jesse, easy, easy’ (Id.); that accused then
splashed a glass of wine on the face of the deceased and throw the glass to the
concrete pavement (Id.); that the deceased stood up, wiped his face, removed
his eyeglasses and wiped it with his T-shirt, wore his eyeglasses again and sat
down anew, but accused with his right hand slapped him on the left cheek (pp.
99, 100, tsn, Feb. 25, 1969); that the deceased’s
face was turned to the right due to the impact of the slapping, only to be met
by the shot from accused’s black revolver (Exh. “F”, p. 110, tsn, Id.)
when the deceased turned his face to the front; that the accused got the
revolver from his right waist and that only one shot was fired (pp. 101, 102, t.s.n., Id.); that the deceased jerked a little and fell to
his left side, meanwhile the accused stood up still holding his revolver,
raised it, turned its drum and tucked it on his right waist (p. 102, tsn, Id.); that thereafter, the accused turned to his
right, and went upstairs of his house (p. 110, tsn,
Id.) and threw his firearm (p. 45, tsn, Aug. 27,
1969); that after a while, ac­cused came down from his house, passed by the
body of the deceased, walked along Roxas Street and
proceeded to the Municipal Building (pp. 111, 112, tsn,
Feb. 25, 1969; p. 45, tsn, Aug. 27, 1969).

“Sometime, thereafter, that same evening, the Chief of Police
of Nasipit, Agusan del
Norte, Teodoro Luneta,
arrived at the scene of the shooting incident to investigate at the instance of
Mrs. Lourdes Ruiz, wife of the accused (pp. 22, 24, tsn,
Aug. 27, 1968).  Chief Luneta saw
near the house of the accused the body of the deceased (p. 28, tsn, Id.) whom he had known for a good number of years (p.
24, tsn, Id.). 
He did not see any firearms with or within the immediate vicinity of the
victim (p. 58, tsn, Feb. 24, 1969).  He left the place for a while to call some of
his policemen to assist him, but upon his arrival at the municipal building, he
saw the accused already there, so he ordered the station guard to keep watch on
the person of the accused.  As most of
his policemen turned out to be on patrol, he went back to the scene of the
crime, supervised the taking of the picture of the deceased on the spot, as
well as the scene of the crime by photographer David, and the drawing of a
sketch of the place (Exh. “B”) by Corporal Jalop (p. 31, tsn, Aug. 27,
1968).

“The body of the deceased was autopsied at the Raniel’s Funeral Parlor at Butuan City
by Dra. Lydia San Pedro, Municipal Health Officer of Nasipit, Agusan del Norte, at
2:00 o’clock in the morning of May 31, 1968 (pp. 140, 142-149, tsn, May 7, 1969), with the help of Dr. Teodoro
Vesagas who did the actual incision (pp. 102, 149, tsn, May 7, 1969) and removed the slug which was lodged in
the left medulla of the victim’s brain (p. 116, tsn,
Id.).  The autopsy findings are reflected
in the medical report (Exh. “T” and
“T-3”) submitted and testified to by Dra.
Lydia San Pedro (p. 150, tsn, Id.) showing the
following:

‘Ext. finding: Transicted tongue medially; cominuted
fracture left maxilla;

— upper and lower incissor teeth left upper premolar detached from socket;

— Hard and soft palate
fractured on the left side with rugged edges.

‘Internal Findings:
Linear fracture from occiput extending to the base’ of
the skull; lacerated left and right lobe of the medulla; bullet slug lodge in
the left medulla.  Course of bullet wound
of entrance– left hard palate–left maxilla–base of the skull–left medulla.

‘Description of wound
entrance–Location-­left angle of the mouth, has irregular surface with upward
extension about 1-1/2 inches forming a triangle, two smaller linear wound
triangular in size 1/2 inch in length on both sides of the first wound de­scribed
above, burned and roughened area about the wound of entrance.

‘CAUSE OF DEATH:
Laceration with hemorrhage medulla due to gunshot wound.’ (p.39, Rec.)

“In the early morning of May 31, 1968, the recovered slug (Exh.
“C”) was handed by Dra. Lydia San Pedro to
Chief of Police Luneta (pp. 36-39, tsn, Aug. 27, 1968; p. 152, tsn,
May 7, 1969) who in turn gave it to his deputy, Police Lt. Amado
Felias, with instructions to have it ballistically examined (tsn, pp.
36, 37, Aug. 27, 1968; p. 237, May 9, 1969), and to escort the accused to Camp Crame for the purpose of paraffin test, which mission he
undertook toge­ther with Lt. Jose C. Edera of the Agusan PC Command that same morning of May 31, 1968 (tsn, pp. 30-34, May 5, 1969; pp. 239 240, May 9, 1969).

“According to Capt. Constantino Y. Leva, Chief of the Ballistics Branch, PC Central
Laboratory, Camp Crame, (pp. 148, 149, tsn, April 18,
1969) and who examined ballistically the
recovered slug (Exh. “C”), the said slug
was fired from a Cal. .357 Magnum
firearm (pp. 150-155, tsn, Id.).

“The result of the paraffin test conducted on the accused also
on May 31, 1968 by Lt. Col. Minardo B. Piñones, Chief of the Chemistry Branch, PC Central
Laboratory, Camp Crame (pp. 326, 327, tsn, April 17, 1969), showed that the right hand of the
accused was positive for the presence of nitrates, while his left hand was
negative (Exh. “K”; pp. 336, 337, 388, 389,
tsn, Id.).

“On the same date, May
31, 1968, at Camp Crame, Quezon City, the accused executed
an affidavit (Exh. “Z”) stating therein
that while he and the deceased were grappling for the possession of the
deceased’s revolver, somebody whom he did not see fired at the deceased.  This affidavit, however, was not believed by
Lt. Col. Pelayo Perez, CIS Deputy Executive Officer,
when the said affidavit was presented to the latter on June 1, 1968 on account that it does not identify
who shot the deceased (pp. 174-175, tsn, May 8, 1969), so that Lt. Col. Perez
was constrained to, and did, interview, the accused.  (pp. 176, 179, tsn,
Id.).  After the interview, the accused, in the
presence of Lt. Col. Perez, executed a second affidavit (Exh.
“Z-1”) giving a new version of the incident, in that it was the
revolver of the deceased which killed the latter, and because of this new
version, Lt. Col. Perez further interviewed the accused who finally admitted
that he knew where the firearm was, and promised to surrender the same in Agusan, if he (Perez) would go there.  Forthwith, the accused was returned to Nasipit, Agusan, accompanied by
Police Lt. Amado Felias and
PC Lt. Edera (p. 240, tsn,
May 9, 1969), while Lt. Col. Perez decided to follow them later together with
CIS Agent Sofronio Sison
(p. 182, tsn, May 8, 1969).

“In the meantime, on June
2, 1968, P.C. Sgt. Manuel Leva, a
paraffin technician, lifted paraffin casts on the left cheek and both hands of
the deceased (pp. 303-307, tsn, April 16, 1969). 
On June 6, 1968,
these paraffin casts were turned over by Sgt. Leva to
Lt. Col. Minardo B. Piñones,
the Chief Chemist, who examined the same and the result (Exh.
“L”, p. 349, tsn, April 17, 1969) showed that the paraffin cast
lifted from the left cheek of the deceased was positive for the presence of
nitrates (pp. 346, 347, tsn, Id.),
while the paraffin casts lifted from both hands of the deceased were negative
(p. 348, tsn, Id.).

“On June 4, 1968,
Lt. Col. Perez arrived in Agusan and at the residence
of the accused the latter surrendered to the former a Cal.
.357 Magnum firearm with five live ammunitions and one spent shell (pp.
182-191, tsn, May
8, 1969; pp. 37-43, May 5,
1969), which firearm (Exh. “F”)
was found ballistically to be the firearm from which
the recovered bullet or slug (Exh. “C”)
that killed Atty. Jose Ong Oh, Jr. (deceased) was
fired (Exh. “P”; pp. 162-167, tsn, April 18,
1969).

“On June 5, 1968,
the next day after the accused surrendered the aforesaid firearm (Exh. “F”), he executed a third affidavit (Exh. “Y”) consisting of six (6) pages, at the
Headquarters of the Agusan PC Provincial Command at Butuan City
(pp. 193, 194, tsn, May 8, 1969), in which affidavit, accused, among others,
admitted that the surrendered firearm (Exh.
“F”) is his own unlicensed revolver that killed the deceased, but
that the killing was accidental as the forefinger of the deceased’s left hand
was inserted into the trigger guard of said revolver causing it to fire and
hitting the deceased himself.”

Upon the other hand, the version of self-defense as developed by
appellant during the trial is as follows, quoting also from Appellant’s Brief:

“On the same date, i.e., May 30, 1968, at 9:00
P. M. Ratilla who was sent to look for the deceased,
Atty. Jose Ong Oh, Jr., arrived with one Carmelito Omboy.  Ratilla told the
herein accused-appellant that the deceased, Atty. Jose Ong
Oh, Jr., was at that time at the Helen’s Bakery, then said Ratilla
after telling the herein accused-appellant the fact that Atty. Jose Ong Oh, Jr., was at the Helen’s Bakery went upstairs their
house and said accused-appellant keep on looking towards the direction of
Helen’s Bakery but could not see the deceased, so he went to the middle of Mabini Street where he saw the jeep of the deceased then
parked.  Then after seeing the parked
jeep of the deceased the herein accused-appellant went back to his seat at the
store in the first floor of their house. Then he saw that the deceased, Atty.
Jose Ong Oh, Jr., was walking towards the cargo truck
and look at its engine and upon seeing the three sacks of copra being unloaded
from the truck he (the deceased) pulled his hair and saying: “This is a
delay of the loading.” Then he went around the said truck and the herein
accused-appellant could see from the face of the deceaed,
Atty.  Jose Ong
Oh, Jr. that he was angry over the unloading of the three sacks of copra.  That at the distance of about three to four
meters the herein accused-appellant told the deceased, Atty. Jose Ong Oh, Jr.: “It is good that you are here,” but
the deceased did not answer, then he offered him a seat while he (the
accused-appellant) was sitting on a rattan chair, telling the deceased to ‘sit
down first’ and pointing to a chair in front where he was then sitting, but the
deceased, Atty. Jose Ong Oh, Jr., answered: ‘No.  I am in a hurry’ then the accused-appellant
stood up, placed his hands on the shoulder of the deceased and requested him
again to sit down; then the deceased, Atty. Jose Ong
Oh, Jr., inquired and said: ‘What shall we talk about, about the loading?’,
then the accused-appellant asked the deceased whether it was true that he gave
the loading of his copra on M/V Sweet Hope to another labor union.  Then the deceased, Atty. Jose Ong Oh, Jr., answered in a harsh voice and said: ‘It is
true; this is our copra; you cannot tell me to whom I will give the loading of
the copra.’ Then the herein accused-appellant in turn raised his voice and said:
‘What do you mean? I cannot interfere? Have you forgotten our contract? And
that the last shipment was not handled by us, so this shipment should be ours’,
then the deceased replied and said: ‘It is none of your business.  Litsi, it is none
of your business; why do you interfere with our loading?’ That because the
herein accused-appellant was hurt said to the deceased: ‘You are trampling on
my right already.  You are a traitor, you
big Chinese communist, you rascal.’ Then he stood up to avoid the deceased, but
the deceased said: ‘What do you mean by rascal? communist? traitor? at the same
time stepping forward towards him (accused-appellant) and pulling out his
revolver from his (deceased) right hip pocket. 
However, before the deceased could put his finger on the trigger of his
revolver, the accused-appellant splashed Tanduay wine
contained in the glass he was holding on his right hand on the face of the
deceased and with his left hand, he (the accused-appellant) gripped the drum of
the deceased’s revolver which the deceased held with his right hand.  That the accused-appellant tightened his grip
on the deceased’s right hand so that he could wrestle the former’s
revolver.  But the deceased placed his
left hand over the accused-appellant’s left hand trying to loosen his grip so
that he (the deceased) could shoot him. 
The accused-appellant began to feel afraid that he will be shot by the
deceased if his left hand could be wrestled from its hold on the drum of the
deceased’s revolver.  Then he
(accused-appellant) threw the glass that he was then holding with his right
hand and with his right hand he pulled deceased’s left hand which was on top of
his left hand, but he noticed the growing strength of deceased’s left hand, and
he remembered that he had a firearm at his waist, so he pulled it and struck
deceased’s face hitting lightly the deceased near his jaw with the end of the
barrel of the revolver because the deceased parried his blow.  Then the deceased struggled to point his gun
at him, so he (accused-appellant) pistol whipped the deceased again but he was
surprised why he could not, (sic) however, he found out that deceased’s left
forefinger was then inserted into the trigger guard of his revolver and both of
them were then pulling his (accused-appellant’s) revolver, then he pushed
forward with his revolver the deceased, however, the deceased met his forward
push and his left finger still inserted into the trigger guard of his revolver,
and after a while he heard a gunburst and it was his
gun that fired and his left hand still holding the right hand of the deceased
which was still holding his revolver. 
Then a little later, deceased’s left hand and his forefinger inside the
trigger guard of accused-appellant’s revolver loosened its grip then he saw the
deceased slump to the ground on his right side. 
That it was the left forefinger of the deceased which pushed the trigger
of the accused-appellant’s revolver that caused it to fire.  That after the deceased slumped to the ground
he (the accused-appellant) released his grip on de­ceased’s revolver and
deceased’s revolver dropped to the ground by the side of the deceased.  Then the herein accused-appellant after
taking a look at the deceased left and proceeded upstairs of his house and
threw his gun.  Then he went down again
from his house and proceeded towards the Municipal Building of Nasipit.  That the
accused-appellant had six more bullets in his revolver, and that he did not
fire them at the deceased because he had no intention to shoot the deceased, he
did not care to find out where the deceased was hit and what occurred to his
mind was to notify the police so that the police could bring the de­ceased to
the hospital and for him to surrender and report the incident.  (Cf. decision Appendix “A”, pp. 50
to 58.)”

The refusal of the trial court to give credence to appellant’s
version of self-defense is the basic and main assignment of error.

We agree with the court a quo in rejecting the plea
of self-defense.  It has found the
prosecution witnesses more credible, and rightly so, because they all appear to
be disinterested witnesses, specially the public officials among them, the
Municipal Judge, the Chief of Police, and certain officers of the Philippine
Constabulary, whose testimonies, touching on how the crime was committed,
totally discredit the story of self-defense which fails to inspire belief.  The finding of the trial court on the
relative cre­dibility of the witnesses in this case deserves full respect.

To begin with, the initial unlawful aggression imputed to the
deceased by the defense, in order to erect the main prop of the defense invoked
by appellant, is belied by the more natural and credible testimony of the State
witnesses.  Thus, the supposed aggression
committed by the deceased according to appellant and his witnesses was in
whipping out his gun and pointing it at appellant after a heated exchange of
angry words.  It is entirely belied by
the fact that no gun was found near the fallen body of the deceased or in the
immediate vicinity thereof, and that the slug (Exhibit “C”) that
caused the death and extracted from the brain of the deceased was fired from
appellant’s unlicensed gun (Exhibit “F”), as established by the
ballistic examination conducted by an expert, Capt. Constantino
Y. Leyva, Chief of the PC Central Laboratory, Camp Crame.

If the appellant fired his unlicensed gun with his right hand, as
the presence of nitrates thereon would prove, and there being no nitrate found
on his left hand, when he was subjected to paraffin test the day following the
shooting incident (Exhibit “K”) also in Camp Crame,
the defense theory chat the deceased pulled out a gun which appellant tried to
wrest from the deceased with his left hand, and that in the course of the
struggle for the possession of the gun, it went off with the deceased’s finger
also pressed against the trigger, would be pure concoction.  Under such theory, the left hand of appellant
would have been positive for nitrate, as well as the right hand at least, of
the deceased that supposedly fired the gun. 
But paraffin test conducted on June
2, 1968 showed both hands of the deceased negative for nitrates
(See Exhibit “L”).  It was the
left cheek of the deceased that was found positive for the presence of
nitrates, which shows that the gun was close to the face when it was fired.

If there was a struggle for the possession of the gun of the
deceased as claimed by appellant, there is the much greater likelihood of the
gun being held down on the level of the body during the struggle, not the level
of the head.  That the gun was fired
close to the face is more indicative of a deliberate aim with complete freedom
from any force that could distort its accuracy, as would happen in a
hand-to-hand struggle for the possession of the gun.  The entry of the slug through the mouth,
likewise, renders appellant’s version of how the gun went off while he and the
deceased who allegedly pulled out his gun very improbable, as was his first
version, as given in his statement (Exhibit “Z-1”).  All these improbabilities and plain
untrustworthiness in the testimony of the appellant, and the physical findings
of experts, would make the version of the prosecution that it was appellant who
drew his own gun from his right waist and fired at the deceased directly on the
face, at close range, easily the more natural and thus the more credible of the
diametrically conflicting versions of the defense and the prosecution.

In the protective surrounding of appellant’s residence where his
confrontation with the deceased took place, and appellant having been quite
justifiably angered by what he heard that the deceased had a rival union to
load his copra, by which act he felt cheated and unjustly discriminated,
together with the numerous members of his union, and his anger perhaps showing
itself very visibly because he had been drinking in celebration of his son’s
birthday, the deceased could not have assumed the aggressive stance portrayed
of him.  It was appellant, therefore, who
deliberately fired at the deceased, infuriated by how he felt seriously
aggrieved by the deceased’s act in violating an agreement on the loading of the
latter’s copra by the two rival unions under some kind of rota­tion
scheme.  The deceased himself must have
been angered on seeing three sacks of his copra unloaded from the truck that
stopped near appellant’s house, and taking on an attitude that was more hostile
than friendly, the deceased added fuel to appellant’s fury, igniting in the
latter a violent temper, as to mark him as the real aggressor, not the
deceased.

The element of unlawful aggression not having been established,
appellant’s plea of self-defense, or even that of incomplete self-defense, must
fail.  The other requisite of
self-defense which is that of the reasonable necessity of the means employed to
prevent or repel the aggression must, likewise, have to be found wanting, once
the basic requisite of unlawful aggression is shown to be non-existent.  Neither could it be said, from how the
evidence has been analyzed above, that the appellant gave no provocation, which
is the third and last requisite of the justifying circumstance of self-defense.

With the constant shifting of appellant’s version from that of
absolute denial that he shot at the deceased, pointing to an unknown person as
the assailant, to that of accidental shooting, and finally to that of
legitimate self-defense, the utter incredibility of each of the changing theory
he gave from the time he first gave statement in custodial interroga­tion, to
the time he testified in court, becomes so manifest for him to be deserving of
any bit of credence as a witness in his own behalf.  This is true with his witnesses who merely
tried to give corroboration to his principal testimony.

Finding, therefore, that appellant shot and killed the deceased
not in lawful self-defense, his liability for the killing, authorship of which
he admitted, is beyond doubt.  The only
question now is whether the shooting was attended with treachery as to raise
the slaying to the category of murder as charged, and as found by the trial
court, said court holding that there was treachery, even if the attack was
frontal, because it was sudden and unexpected.

To constitute treachery, the method, form or means adopted in
killing the victim must be consciously and deli­berately chosen to insure its
execution without any risk to the offender arising from the defense which the
victim might make.^[1]
In the case at bar, the resort of the appellant to the use of his firearm was,
as he and his witnesses declared, the hostile and insulting manner the deceased
responded to appellant’s demand for explanation why, in violation of their
existing agreement, deceased was loading his copra in the vessel with the
employment of laborers, not of his union but of a rival labor union.  There is no evidence that even before the
arrival of the deceased at the residence of appellant when asked to see the
latter, appel­lant had already formed an intent to kill the deceased.  His business relationship with the victim was
such that appellant would not gain from the death of the deceased who was
giving livelihood to him and his union members, for appellant to desire to do
away with the deceased.  Appellant had
sought the deceased at the Oceanic bodega of the latter upon hearing of the
loading being done by rival union members. 
In doing so, he could not have had murder in his heart and commit it at
the very stronghold of his intended victim. 
All appellant wanted was an expla­nation of, and rectification for, an
act committed by the deceased considered by appellant as highly discriminatory
and prejudicial to the interest of many laborers whose union he headed.  If appellant his gun and fired at the
deceased, it was clearly because of the unexpected turn of events that aroused
the killer instinct in him, as shown by his having been previously indicted
also for murder of a police sergeant, and convicted by the same trial court and
sentenced to death (Decision, p. 100, p. 532, Rollo),
which developed from the unfriendly, if not hostile and belligerent, manner
with which the deceased dealt with appellant in their confrontation at the
latter’s place of residence.  For in this
respect, We are inclined to believe more the defense version that the killing
was preceded by some discussion which grew heated, not as cold-blooded as the prosecution
would want to prove it was.

In U.S. vs. Namit, 38 Phil. 926, it was
held that the circumstance that the attack was sudden and unexpected to the
person assaulted did not constitute treachery, where it did not appear that the
aggressor had consciously and deliberately adopted a mode of attack intended to
facilitate the perpetration of the killing without risk to himself.  As already shown, appellant had not the time
to reflect on the means or mode of attack for it to be said that he
deliberately and consciously pulled out his gun and fired at the deceased to
insure the commission of the crime without risk to himself.  He fired only once.  One shot would not be so certain to disable
the deceased from making a defense. 
Before he was shot, the deceased was splashed on the face by appellant
with liquor from a glass the latter was holding and then slapped on the left
side of the face.  The shooting was thus
preceded not only by a heated discussion, but acts on the part of appellant
that showed not mere hostility but such a heated temper that could break into a
violent attack, to put the deceased on his guard.  The circumstances just mentioned negate the
presence of treachery, as held in the case of People vs. Gonzales, 76 Phil.
473.  For there to be treachery by reason
of the suddenness and unexpectedness of the attack, it has been generally held
that there must have been no warning of any sort to the deceased or offended
party.^[2]
His act of going to the Municipal Building
right after he had shot at the victim but once, can hardly suggest a strong and
prior homicidal intent, a circumstance also not quite compatible with a
conscious and deliberate choosing of the mode, form or means of assault to
insure the execution of the crime without risk to himself.  Unconvinced nor persuaded that treachery was
present in the killing, We cannot find appel­lant guilty of murder.

We neither could view the fact that both appellant and the
deceased were friends as giving rise to the aggravating circumstance of abuse
of confidence when appellant killed the deceased, as held by the trial
court.  We agree with the defense in
invoking the ruling of People vs. Luchico, 49 Phil.
689, in that before the fatal shooting of the deceased, the latter, from the
time he had hired other laborers for the loading of his copra, not the
appellant’s men, as he should have done under a supposed agreement with
appellant, and even more after being sought for by appellant for the alleged
breach of the agreement, and with the heated exchange of words between them
when they finally came face to face, whatever feeling of confidence, deceased
had of appellant had vanished.  The sight
of his truck parked near the residence of appellant, with three sacks of his
copra unloaded therefrom, also helped to vanish
whatever confidence he had in appellant, for that sight reflected the hostility
of appellant towards him.  The deceased
himself naturally got mad at the appellant, a mood not quite compatible with
the charitable feeling of confidence. 
The deceased then knew, beyond mere suspicion, that appel­lant was mad
at him.  It certainly cannot be said,
there­fore, that the commission of the crime was facilitated by the confidence
deceased had in appellant, which alone would justify the appreciation of abuse
of confidence as an aggra­vating circumstance.^[3]

Upon the other hand, appellant had been drinking while
celebrating his son’s birthday.  He was
told of the loading of the victim’s copra by a rival union laborers, by which
act of the deceased, he felt cheated and discriminated in alleged breach of a
standing agreement.  This fact aroused
his passion, and caused obfuscation. 
However, after seeing the appellant fall from the single shot he fired,
he went forthwith to the Municipal Building
and placed himself at the disposal of the law and the authorities.  We note from these facts the presence of the
mitigating circumstances of (1) drunkenness which was not shown to be
intentional nor habitual; (2) passion and obfuscation; and (3) voluntary
surrender.  With these three mitigating
circumstances, and with no aggravating circumstance to offset them, the penalty
to be imposed should be one degree lower than that for simple homicide or reclusion
temporal, which is prision mayor,
or from 6 years, 1 day to 12 years (Article 64(5), Revised Penal Code.  Applying the indeterminate Sentence Law, the
penalty should be from 6 years of prision correccional to 12 years of prision
mayor.

As to the amount of indemnity and damages awarded, the amount of
actual and compensatory damages, represented by the loss of expected earnings,
finds support in the case of Alcantara vs. Surro, et al., G. R. No. L-4555, July 23, 1953, 59 O.G. 2769.  From the physical condition of the deceased,
and his social standing when gunned down by appellant, his heirs are also
entitled to moral damages as awarded by the court a quo, but the
amount so awarded may be reasonably reduced from P50,000.00 to P20,000.00,
there being no aggra­vating circumstance, but there are three mitigating
ones.  However, as held recently in the
case of Nora Aguilar Matura vs. Hon. Alfredo C. Laya
and People of the Philippines,
G. R. Nos. L-44550-51 and L-44552-53, July
30, 1979 that there is no basis for awarding exemplary damages when
not even one aggravating circumstance was established, no exemplary damages may
be awarded.  The amount of P10,000.00 for
attorney’s fees may likewise be reasonably reduced to P5,000.00, the private
prosecutors that helped in the prosecution of the case being deemed to have
rendered service for a fellow member of the bar more in the spirit of
professional fraternity.

WHEREFORE, with the modification as to the penalty which
is a prison term as above indicated, instead of death, and as to the amount of
damages awarded, also as above indicated, the judgment of the trial court is
affirmed in all other respects, with costs.

SO ORDERED.

Fernando, C.J., Concepcion, Jr.,
Fernandez, Guerrero, Abad Santos, and Melencio-Herrera,
JJ., concur.

Teehankee, J., voted for affirmance of the
death penalty. The accused’s claims should not be
given any credence, since he gave three conflicting statements and the victim
was shot in cold blood in the head.

Barredo, J., voted with J. Aquino in his concurring opinion.

Makasiar, J., files a separate opinion.

Aquino, J., concurs in the opinion that the appellant committed homicide and not
murder. He is entitled only to the mitigating circumstance of voluntary
surrender to the authorities. The penalty imposable on him is twelve (12) years
of prision mayor
as minimum to fourteen years of reclusion temporal as maximum.

Makasiar, J., see separate opinion.

^[1]
People vs. Samonte, Jr., 64 SCRA 319; People vs.
Boduso, 60 SCRA 60; People vs. Sudoy, 60 SCRA 174; People vs. Tizon,
66 SCRA 372; People vs. Velez, 58 SCRA 21.

^[2]
People vs. Ramiscal, 49 Phil. 103; People vs.
Torejas, 43 SCRA 158; People vs. Cabiling, 74 SCRA 285.

^[3]
People vs. Hanasan, 29 SCRA 534; People vs.
Villas, 27 SCRA 947; People vs. Caliso, 58
Phil. 283.

6 pt
6 pt
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