PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JIMMY ESTRADA, ACCUSED-APPELLANT.
QUIJANO-PADILLA, J.:
“WHEREFORE, the court hereby finds the accused Jimmy Estrada guilty beyond reasonable doubt of the crime of Homicide and hereby sentences said acccused to an indeterminate prison term ranging from eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years and eight (8) months of reclusion temporal as maximum, together with the accessory penalty provided by law; to pay the heirs of the victim Gregorio Apitong P50,000 as indemnity, without subsidiary imprisonment in case of insolvency, and to pay costs.
SO ORDERED.”[3]
Appellant Estrada was charged with homicide in an Information[4], which reads:
“That on or about the 5th day of November, 1997, in the Municipality of San Dionisio, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a sharp bladed instrument (knife), with deliberate intent and decided purpose to kill, and without any justifiable cause or motive, did then and there willfully, unlawfully and feloniously assault, attack, and stab one GREGORIO APITONG with the weapon he was then provided, hitting the latter on the anterior chest which caused his death.
CONTRARY TO LAW.”[5]
On arraignment, appellant Estrada pleaded not guilty to the crime charged but admitted killing the victim Gregorio Apitong in defense of the former’s daughter who, at that time, was allegedly being raped by the latter. Hence, a reverse trial ensued.
Appellant Estrada in his defense raised the justifying circumstance of defense of a relative. To prove this, he presented his daughter, Mary Jane Estrada[6], Dr. Jeline Duplayna[7], and himself[8] as witnesses. He also offered as exhibits a request for medical examination of Mary Jane signed by one SPO4 Anacleto Billones, the result of medical examination conducted by Dr. Jeline Duplayna, the birth certificate of Mary Jane, and the joint affidavit of Mary Jane and her grandfather, Alejo Lazarito.[9]
Appellant’s evidence and version of events are summarized as follows:
In the evening of November 5, 1997, Gregorio Apitong went inside Mary Jane Estrada’s room while she was sleeping. Gregorio pointed a knife at Mary Jane, covered her mouth, removed her shorts and underwear and raped her. But, while Gregorio was in the act of raping Mary Jane, his hand covering her mouth slipped, so she was able to shout “papang” to call out her father. Having heard her daughter’s call, Jimmy Estrada rushed to her room and saw Gregorio on top of his daughter. Jimmy immediately struck Gregorio with a bamboo pole, which was used as support in the opening of their window. As Gregorio turned toward Jimmy, the latter struck Gregorio’s face with the same bamboo pole, and Gregorio fell down. After seeing her father hit Gregorio, Mary Jane immediately put on her underwear and shorts and rushed to a corner of the room. She then saw her father Jimmy grabbed the knife, which was used to threaten her, and stabbed Gregorio on the chest. After seeing this, she left the scene, went downstairs, and fled to the house of her uncle where she slept and spent the rest of the night. When Jimmy was already alone with the dead body of Gregorio, Jimmy dragged the body and left it beside a road.
The next morning, Gregorio’s body was found by the police. An investigation ensued, and the police and the barangay captain went to Jimmy’s house. While the police and the barangay captain were there, Mary Jane also arrived. Jimmy told the police that his daughter was raped by Gregorio, and that the former caught Gregorio in the act, so he stabbed and killed Gregorio. Mary Jane narrated the incident that happened to the police. She also told the police that she was raped by Gregorio not only on the night of the killing but also on the two previous nights. The police, then, suggested that she go to the Municipal Hall for medical examination. Mary Jane heeded the advice and had herself checked by a doctor. At that time, the police did not arrest Jimmy even after confessing that he killed the victim, so he just waited for the return of his daughter.
The following day, Jimmy went to the house of the barangay captain and asked the latter to accompany him to the Municipal Hall in order to surrender.
Meanwhile, the results of the examination of Mary Jane showed that she has a healed laceration at 5:00 o’clock position in her hymen and that vaginal smears done to her were negative of spermatozoa.
On the other end, the evidence for the prosecution consisted of the testimonies of the victim’s father and mother, namely Pedro and Prescila Apitong[10], respectively, and two (2) witnesses, namely, Alex Buenafe[11] and Dr. Owen Lebaquin[12]; the medico-legal report signed by Dr. Owen Lebaquin; a picture of the dead body of Gregorio Apitong; and affidavits of Alex Buenafe and Pedro Apitong.[13] From these pieces of evidence, we reconstruct the prosecution’s version of events summarized below.
On October 28, 1997, Gregorio Apitong left their place in Ajuy, Iloilo to go to Tuble, San Dionisio, Iloilo in order to work with Jimmy Estrada during the harvest season. Gregorio stayed in the house of Jimmy. Gregorio’s parents learned his death when they were informed by the police. Gregorio’s parents then went to San Dionisio and identified that the dead body was indeed their son.
In the evening when Gregorio was killed, Alex Buenafe, while riding his motorcycle and passing by Brgy. Tuble, saw three (3) persons pushing a trisikad and a dead person inside the trisikad. He recognized that one of these three was Jimmy Estrada. When he stopped to check what these persons were doing, Jimmy Estrada signalled him to proceed, so he just proceeded. He learned later on that the dead person inside the trisikad he saw that night was Gregorio Apitong.
Gregorio’s body was subjected to examination and the results signed by Dr. Owen Lebaquin revealed the following:
1. “Hematoma, right periorbital area, measuring 4×2 cm, 3 cm from its anterior midline.
2. Hematoma, left periorbital area, measuring 4×3 cm, 4cm from its anterior midline.
3. Swelling, right temporal area, measuring 7×4 cm, 6cm from its anterior midline superimposed by an abrasion measuring 1.5 x 1.5 cm.
4. Lacerated wound, right supraorbital area, measuring 2×0.3 cm, 5.5cm from its anterior midline.
5. Ligature mark, right lateral aspect of the neck extending to the left lateral aspect of the neck, measuring 26×0.6 cm. Directed posteriorwards backwards.
6. Ligature mark, right lateral aspect of the neck, measuring 6×0.5 cm.
7. Abrasion, right lateral aspect of the neck, measuring 2.5×1 cm. 11 cm from its anterior midline.
8. Swelling, sternal area, measuring 14×12 cm. Bisected by its anterior midline.
9. Stabwound, right sterno-clavicular area, measuring 2×0.2 cm, 4cm from its anterior midline, 11 cm deep, directed posteriorwards downwards medialward lacerating the arch of the aorta.
10. Abrasion, left shoulder, measuring 4×3.5 cm, 15 cm from its anterior midline.
11. Abrasion, middle 3rd of the left lower leg, measuring 5×3 cm. 4 cm medial to its anterior midline.
Subdural hemorrhages are noted at the right frontal lobe area of the brain.
Xxx
Cause of death is due to Hemorrhage as a result of a stabwound at the anterior chest.”[14]
With these sets of evidence, the RTC ruled that appellant Estrada failed to prove by clear and convincing evidence that the killing of Gregorio Apitong was lawfully justified. The RTC found that the alleged surrounding circumstances of the victim’s killing was belied by the several injuries sustained by the victim; that apellant Estrada’s act of not surrendering the knife, which was allegedly used in threatening Mary Jane and eventually used in killing the victim, can be taken against him; and, that the unnatural act of appellant Estrada in dragging and dumping the body of the victim indicate the intent to hide the body of the crime. Accordingly, the court a quo concluded that herein appellant was guilty beyond reasonable doubt of the crime of homicide.
Hence, appellant Estrada raised this appeal and assigned to the RTC the following errors:
- “THE LOWER COURT ERRED IN NOT APPRECIATING THE JUSTIFYING CIRCUMSTANCE OF DEFENSE OF A RELATIVE – WHETHER COMPLETE OR INCOMPLETE.
- GRANTING ARGUENDO, THAT THE CRIME OF HOMICIDE WAS COMMITTED, THE LOWER COURT ERRED IN NOT TAKING INTO ACCOUNT THE ATTENDING MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND VINDICATION OF A GRAVE OFFENSE.”[15]
In his brief[16], appellant reiterates his claim of defense of relative, considering that the victim, Gregorio Apitong was raping appellant Estrada’s daughter, Mary Jane, when appellant killed Gregorio. Appellant further argued that, assuming that homicide was committed, the penalty should be lowered to one degree, considering the presence of two mitigating circumstances – voluntary surrender and immediate vindication of a grave offense.
The appellee, meanwhile, through the Office of the Solicitor General, argues in its brief[17] the contrary, that is, the justifying circumstance of defense of a relative was not sufficiently proven and that the circumstances presented by evidence show the absence of any mitigating circumstances.
After careful examination of the sets of evidence proferred by the parties, We affirm the appellant’s guilt.
As already intimated, appellant interposed defense of a relative as justifying circumstance to free himself of criminal liability. Invoking a justifying circumstance means admitting the criminal act done only that the same was justified.
When an accused admits killing the victim but invokes defense of a relative as justifying circumstance to escape criminal liability, the accused assumes the burden to establish his plea by credible, clear and convincing evidence; otherwise, conviction would follow from his admission that he killed the victim.[18]
Hence, to escape liability, appellant who admitted killing the victim in the name of defense of a relative bears the burden of proving: “(1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3) in case the provocation was given by the person attacked, that the one making the defense had no part therein.”[19] The most essential element that must be proven is unlawful aggression “for if there is no unlawful aggression, there would be nothing to prevent or repel.”[20]
In this case, appellant argues that the unlawful aggression he prevented was the act of rape being done by the victim to his daughter. Thus, appellant’s burden is to prove by credible, clear and convincing evidence that such unlawful aggression, the fact of rape, existed at the time he commited the crime.
In trying to prove the existence of this unlawful aggression, appellant presented his own testimony, his daughter’s and Dr. Jeline Duplayna’s testimony. Indeed, in the testimonies of appellant and his daughter, both claimed that during the night when the crime was committed, Mary Jane, while being raped by Gregorio, was able to call her father. And, when Jimmy saw Gregorio on top of Maryjane, Jimmy hit Gregorio twice and stabbed the latter on his chest. Then, after seeing this incident, Mary Jane fled to her uncle’s house where she slept. Mary Jane even added that she was raped by Gregorio not only on the night he was killed but also on the two previous nights.
However, despite appellant’s and his daughter’s testimonies, We find that the alleged unlawful aggression inexistent, considering that other pieces of evidence not only raised doubts on the existence of the fact of rape but also belies the same.
First. The testimony of Dr. Jeline Duplayna[21] during cross examination clearly stated that there is likely no possibility of rape considering that only one healed laceration was found in Mary Jane’s hymen. A portion of her testimony states:
“Court:
Q: Would it be possible that despite the fact that according to the victim she was raped for three (3) times yet only one healed laceration at 5:00 position was found by you?
A: I don’t think so, Your Honor.
Q: Why? Considering that she was raped as claimed, describe what could have been the laceration?
A: It could have been more than one.
Q: It is old healed or fresh?
A: It is healed.
Q: It could be healed?
A: It could, there maybe some congestions there, could be healed but congestions (sic).
Q: In other words, not healed?
A: Yes, your Honor.
Pros. Dusaban:
xxxx
xxxx
Q: What took this findings (sic) of yours?
A: The vaginal canal is quiet (sic) tight and when I inserted, it is with resistance, with difficulty.
Q: So it is possible Doctor also that your findings or your opinion would suggest that at that time of examination there was no prior penetration?
A: Could be.”[22]
Clearly, the above testimony demonstrates that rape could not have been committed at that time when the crime happened. Considering that Mary Jane testified that she was raped thrice, including the night the victim was killed, there would have been several lacerations found in her hymen to indicate that the sexual intercourse happened or done through force. Moreover, as testified by Dr. Duplayna, if there was recent sexual intercourse, the laceration would not be healed, or if slightly healed, the same would be congested.
Second. The body of the victim belies the claim of defense of a relative considering that the victim’s body sustained several injuries which indicate intent to kill and not intent to defend. Appellant’s testimony narrated that he struck the victim twice, one at the back of the head and one on his right eye, and then he stabbed the victim on the chest. If this was indeed the case, only three injuries would have been sustained by the victim. But, as the medico-legal officer, Dr. Owen Lebaquin,[23] testified, the victim sustained several injuries. His examination showed that the victim had abrasions and ligature marks around his neck.[24] A picture[25] of the victim’s dead body even showed that a rope was tied around his neck. And, from the medico-legal report, We find basis on the RTC’s conclusion, to wit:
“xxx The accused testimony as to the surrounding circumstances of the victim’s killing was belied by physical evidence. According to the accused, he caught the victim Gregorio Apitong raping her (sic) daughter and pointing (sic) her a knife. He hit him with a hard object at the back of his skull and when the victim faced him, he hit him again on his right eyelid, which rendered him unconscious. Then he took hold of the knife of the victim and stabbed him on the chest.
The autopsy findings of Dr. Lebaquin, however, shows that aside from the hematoma on the right eyelid, victim also sustained hematoma on the left eyelid, swelling on the right temporal area and lacerated wound on the supraorbital area. Most importantly, Dr. Lebaquin found ligature marks on the right lateral aspect of the neck and another ligature mark on the same part of the body in the neck. The stab wound was found on the right sternographicular area and a number of abrasions were noted on the lower leg and left shoulder. It was thus shown that the victim sustained several injuries, therefore, he was not only hit on the left eyelid and stabbed on the chest. Because he sustained ligature marks on the neck, victim was strangulated or chocked (sic) with the use of a rope or similar object. Xxx.”[26]
In People v. Babor,[27] the Supreme Court held that the number of wounds found in the body negates the claim of self defense or defense of relative since the severity of the wounds or injuries may already indicate retaliation or unreasonability of the means employed, thus:
“In the case at bar, the forthright declarations of prosecution witness Felicidad Duhaylungsod before the trial court coupled with proof of the number of wounds that the victim sustained, sets at naught the feeble reliance of appellants on the justifying circumstances of self-defense and defense of relative. True, there may initially have been unlawful aggression by the victim when he attempted to rape Sony Babor and, failing therein, he vented his ire on a surprised Nestor Babor by attacking the latter. However, the sequence of proven events which transpired thereafter effectively negates the presence or applicability of this fundamental element and of the other element of reasonable means to prevent or repel that aggression at the second stage of the fray.
xxxx
Moreover, the number of the wounds sustained by the deceased negates the assertion of said jusfifying circumstances by appellants. The autopsy report reveals that Evangelino Camias had sustained all of ten wounds and one even resulted incompletely severing his right arm. The numerous wounds also bear out the testimony of Duhaylungsod, to whom no ill motive has been attributed by the defense, that Sony Babor further hacked the wounded victim thrice and that, thereafter, Nestor Babor stabbed him on the chest. Sony Babor’s pretense that she had no hand at all in the slaying of the victim is soundly refuted by the positive and credible identification and attestation made by Duhaylungsod regarding her direct participation.
Hence, intent to defend is absent based on the physical evidence showing the sustained injuries of the victim. Such number of injuries demonstrates intent to kill.”[28]
Applying this case law principle, We find that the injuries sustained by the victim Gregorio Apitong show intent to kill and not intent to defend.
Moreover, even assuming that the appellant was lawfully defending his daughter, his first two strikes already should have been sufficient to stop the unlawful aggression. With those blows, the aggression already ceased as the victim was actually rendered unconscious. Case law has consistently held that when aggression ceases, the defender no longer has any right to kill or wound the former aggressor, when he does, the same is not anymore a defense but a retaliation.[29] And, killing another as an act of retaliation is never justified.
These two vital evidence – the testimony of Dr. Duplayna and the medico-legal report reinforced by the testimony of Dr. Lebaquin – renders appellant’s defense weak. Appellant, thus, failed to establish the essential element of defense of a relative as a justifying circumstance, that is, the unlawful aggression. What is there to defend when unlawful aggression is absent?
Our jurisprudence is replete with cases consistently holding that when invoking a justifying circumstance “the accused must rely on the strength of his own evidence and not on the weakness of that of the prosecution because even if the evidence of the prosecution is weak, the same could no longer be disbelieved after the accused has admitted the killing. Self-defense and/or defense of relatives cannot prosper if not corroborated by independent and competent evidence.”[30]
Consequently, considering that the appellant miserably failed to prove that there was indeed the fact of rape of his daughter, his claim for mitigating circumstance of immediate vindication of a grave offense and of passion or obfuscation cannot hold water. There is no showing, in his own evidence, that a wrong was done to him or to his daughter, which could naturally excite passion or obfuscation. There is also no clear evidence of a wrong which can evoke a feeling to vindicate the same. If, at all, there was truth to the testimony of Mary Jane, such would not be the fact of rape, but only a fact that she and Gregorio were inside the room when the crime happened. Absent any indication of rape, We do not have any way of finding what they were actually doing inside the room, which roused appellant’s feelings causing him to commit the crime. Besides, We cannot rely on suppositions or presumptions.
Lastly, anent appellant’s claim that the RTC erred in not appreciating his entitlement to a mitigating circumstance of voluntary surrender, We find merit on the same.
The elements of voluntary surrender, in order that the same could be appreciated as a mitigating circumstance, are: “1) the offender has not been actually arrested; 2) the offender surrendered himself to a person in authority or the latter’s agent; and 3) the surrender was voluntary. The essence of voluntary surrender is spontaneity and the intent of the accused to give himself up and submit himself to the authorities either because he acknowledges his guilt or he wishes to save the authorities the trouble and expense that may be incurred for his search and capture.”[31]
We find these elements present in this case. First, appellant has not actually been arrested. The prosecution’s evidence is bereft of any indication that when the police went to appellant’s house, they were there to arrest the appellant. In fact, when the police came to investigate, appellant readily admitted the killing. Second, the appellant testified, and the same is not denied by prosecution’s evidence, that he went to the Barangay Captain to surrender and asked the latter to accompany him to the Municipal Hall. Lastly, appellant’s surrender was clearly voluntary. Since he was not arrested by the police to whom he confessed the killing of the victim, he just presented himself to the Barangay Captain the next day and surrendered to the authorities. Such act was a manifestation of his intent “to save the authorities the trouble and expense that may be incurred for his search and capture.”[32]
The OSG’s argument that appellant’s surrender was an afterthought since he was already questioned by the police does not persuade Us. Appellant’s testimony revealed that he readily informed the police that he killed the victim because the latter raped his daughter, and the police only advised him to have his daughter undergo medical examination. And, since the police did not bring him to the municipal hall, he just waited for his daughter to return and the next day he surrendered himself to the Barangay Captain. This testimony was not rebutted by contrary evidence, thus, the same must be given due credence and weight.
In view of the existence of one mitigating circumstance and the absence of any aggravating circumstance, pursuant to Article 64(2) of the Revised Penal Code, the imposable penalty for the crime of homicide committed by herein appellant is the minimum period of reclusion temporal. Applying the Indeterminate Sentence Law, the maximum penalty to be imposed, then, should be taken from the minimum period of reclusion temporal, while the minimum shall be taken from within the range of the penalty next lower in degree, which is prision mayor.
Hence, considering the previous penalty imposed by the RTC, and considering further the presence of a mitigating circumstance and the application of the Indeterminate Sentence Law, the imposable penalty of the appellant is imprisonment from eight (8) years and one (1) day of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal in its minimum period, as maximum.
WHEREFORE, the Decision dated June 27, 2011 of the Regional Trial Court of Barotac Viejo, Iloilo, Branch 66, in Criminal Case No. 98-699 is AFFIRMED WITH MODIFICATION as to the penalty to be imposed considering the attendant mitigating circumstance. Accordingly, the appellant Jimmy Estrada is sentenced to suffer the indeterminate penalty from eight (8) years and one (1) day of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal in its minimum period, as maximum.
SO ORDERED.
Hernando, and Azcarraga-Jacob, JJ., concur.
[1] Records, pp. 351-352
[2] Records, pp. 345-349.
[3] Ibid., p. 349.
[4] Records, p. 1.
[5] Ibid.
[6] See TSNs dated February 5, 1999, March 3, 1999, and March 17, 1999.
[7] See TSN dated January 26, 2001.
[8] See TSNs dated May 19, 1999 and November 12, 1999.
[9] See Offer of Exhibits of the Accused, Records, pp. 170-174.
[10] See TSN dated July 9, 2002 and TSN dated November 10, 2005.
[11] See TSN dated August 11, 2009.
[12] See TSN dated July 15, 2004.
[13] See Order dated January 19, 2010, Records, p. 339 and Minutes of Hearing, p. 340.
[14] Medico-legal Report, Records, p. 10.
[15] See Appellant’s Brief, Rollo, p. 21.
[16] Rollo, pp. 19-31.
[17] Rollo, pp. 47-62.
[18] People v. Caabay, G.R. No. 129961-62, August 25, 2003; People v. Sabella, G.R. No. 183092, May 30, 2011.
[19] People v. Eduarte, et al., G.R. No. 72976, July 9, 1990.
[20] People v. Sabella, G.R. No. 183092, May 30, 2011.
[21] TSN dated January 26, 2001.
[22] TSN dated January 26, 2001, pp. 6-7. Underscoring supplied.
[23] TSN dated July 15, 2004.
[24] See Medico-legal Report, Records, p. 10.
[25] Records, p. 8.
[26] See RTC Decision dated June 27, 2011, Records, p. 348.
[27] G.R. No. 106875, September 24, 1996.
[28] Underscoring supplied.
[29] People v. Aleta, et al., G.R. 179708, April 16, 2009, citing Razon v. People, G.R. No. 158053, June 21, 2007.
[30] Supra, People v. Caabay, People v. Aleta, and People v. Babor.
[31] De Vera v De Vera, G.R. No. 172832, April 7, 2009.
[32] People v. Sales, G.R. No. 177218, October 3, 2011.