THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ALFREDO LIBARDO, ACCUSED-APPELLANT.

In the defunct Court of First Instance of Bohol, ALFREDO LIBARDO was
accused of double murder in Criminal Case No. 5007, said to have been
committed in the following manner:

“That on the 25th day of January, 1969, in the municipality of
Inabanga, province of Bohol, Philippines, the above-named accused, with
the attendant circumstances of evident premeditation, treachery, taking
advantage of superior strength and intent to kill, did then and there
wilfully, unlawfully and feloniously attack and shoot Exequio Torres and
Ismael Melicor with the use of a Thompson Submachine gun, thereby
inflicting upon the bodies of said two persons multiple fatal gunshot
wounds which caused the two victims’ instantaneous death, to the damage
and prejudice of the heirs of the two decedents; the said crime having
been committed with the following additional aggravating circums­tances:
that advantage was taken by the offender of his public position as
municipal patrolman and that the wrong done in the commission of the
crime was deliberately augmented by causing other wrong not necessary
for its commission when the offender continued to pump bullets to the
two victims even when the latter were lying and dying on the ground.” (Expediente, p. 235.)

Subsequently the case was transferred to the defunct Circuit Criminal
Court where it was assigned Criminal Case No. CCC-XIV­ 63-Bohol. (Id., p. 271.)

In a decision dated April 29, 1971, the trial court pronounced the following judgment:

“WHEREFORE, in the light of the foregoing, the Court finds accused
ALFREDO LIBARDO guilty beyond reasonable doubt of the crime of DOUBLE
MURDER as charged in the information, and appre­ciating in his favor the
mitigating circumstance of voluntary surrender which offsets the
aggravating circumstance of treachery, but in view of the pre­sence of
another aggravating circumstance that the accused took advantage of his
public position as a municipal policeman of Inabanga, Bohol, he is
hereby sentenced to suffer the maximum penalty of DEATH, to pay the
heirs of the deceased Exequio Torres and Ismael Melicor each the sum of
P12,000 plus the additional amount of P5,000, as actual and moral
damages, with all the accessory penalties of the law, and to pay the
costs.” (Id. p. 529.)

LIBARDO filed a notice of appeal and before Us he claims that the trial court committed the following errors:

“I THE LOWER COURT ERRED IN GIVING FAITH AND CREDIT TO THE
TESTI­MONIES OF PROSECUTION WITNESSES, AND DISREGARDING THE TESTIMONIES
OF DEFENSE WITNESSES WHICH WERE INSTEAD MORE PLAUSIBLE, CREDIBLE,
COHERENT, AND NATURAL TO ESTABLISH THE FACT OF SELF-DEFENSE INVOKED BY
THE ACCUSED; AND

“II THE LOWER COURT ERRED IN NOT APPRECIATING THE JUSTIFYING
CIR­CUMSTANCE OF SELF-DEFENSE IN FAVOR OF THE ACCUSED, AND IN NOT
ACQUITTING HIM. ” (Brief, p. 1.)

The People’s version of the facts is as follows:

“In the year 1968, the late Exequio Torres was the elected
president of the Inabanga Labor Union (ILU) in Bohol province (pp. 52,
54, 75, t. s. n., Sanchez). The accused Alfredo Libardo was a policeman
(under suspension because of this case) of the Municipality of Inabanga
(pp. 4-6, t.s.n., Camomot). Then engaged in ‘moonlighting’ acti­vities
on the labor front, Pat. Libardo even went to the extent of trying to
wrest the presidency or leadership of the ILU from Exequio Torres.
These activities of the accused manifested themselves in several
incidents, as follows:

On December 17, 1968, when Marcelo Cenerpida was in a banca by the
river in Inabanga, he was accosted told by the accused: ‘I will be the
one to carry on the leadership of the Inabanga Labor Union’ (p. 53, t.s.n., Sanchez). That same day, Cenerpida informed ILU President Exequio
Torres about what the accused had told him, and Torres in turn reported
the incident to the PC, specifically to Sgt. Palgam. Sgt. Palgam brought
the accused to Torres for confrontation, and in the presence of the
latter, told the accused that he had no right to take over the
presidency of the ILU because it was an elective position (pp. 53-54,
t.s.n., id.).

Also, sometime during the first week of January, 1969, when ILU
treasurer Marcelo Cenerpida and the deceased Exequio Torres went to the
store of Flaviano Meneses to collect payment in behalf of the ILU for
the loading and unloading of Meneses’ cargoes, the accused Libardo, in
police uni­form, armed with a Thompson submachinegun similar to the
firearm Exh. “J”, and accom­panied by a bodyguard, came and asked them
for his share, and when they gave him P6.00, he refused to receive it
and insisted that he be given more. Afraid that something might happen
to Cenerpida and Torres because of the bellige­rent attitude of the
accused, Flaviano Meneses’ younger brother Poldo asked them to stay in
the house longer and not to leave yet (pp. 54-55, t.s.n., id.).

Finally, on January 24, 1969, when Cenerpida gave the accused
Libardo the P3.00 that the deceased Torres asked him to give to the
latter, the accused again refused to receive the money, even got angry,
and, addressing his (the accused’s) companion, said: ‘Ding, you get the
magazine’ (referring to the maga­zine of his Thompson submachinegun),
and added: ‘I will kill this now’ (obviously referring to Exequio
Torres). Frightened, Cenerpida immediately left and requested one of
the laborers to inform Torres about the threat of the accused to kill
him (Torres) (p. 56, t. s. n., Id.).

At about 8:30 o’clock in the morning of January 25, 1969, Flaviana
Cenita, a public school teacher, went to the public market in Inabanga
to buy food. In the fish section of the market, she met Exequio Torres
and Ismael Melicor, both wearing T-shirts, and talked to them for a
while, after which Torres and Melicor proceeded to the pingpong table
nearby (pp. 11-12, t.s.n., Id.).

That same morning, Mamerto Petalcorin, a 50-year-old laborer, was
also inside the same market to buy fish. From the market, he happened
to follow Exequio Torres and Ismael Melicor at a distance of ten (10)
meters as the two emerged from the market (pp. 2-3, t.s.n., Cadiz).

On her way home after buying fish, Flaviana Cenita saw the accused
Pat. Alfredo Libardo standing near the door of the restaurant of
Anunciacion Alima facing the market. She noticed that the accused, who
was alone, was wearing a T-shirt and khaki pants and holding a Thompson
submachinegun (Exhibit J) (pp. 12-13, 22, t.s.n., Sanchez).

At about the same time, Carina Cenita, sister of Flaviana Cenita and
also a public school teacher, was in their house which is just about
eighty meters from the public market, that day being a Saturday so that
Carina had no school (pp. 24-25, t. s.n., id.)

Suddenly, successive shots rang in the air. Mamerto Petalcorin, who
was still near the market, saw the accused Pat. Alfredo Libardo fire
his gun at Exequio Torres and Ismael MIelitor, who both fell dead, and
Petalcorin clearly recognized the firearm of the accused as a Thompson
submachinegun (pp. 3-5, t. s. n., Cadiz). Seized with fear, Petalcorin
hid behind a pillar near the market (p. 6, t.s.n., id.).

Flaviana Cenita, who was walking home when she heard the
successive shots, turned towards the direction of the firing and saw the
accused still standing and holding his Thompson submachinegun in port
arm. Then she saw the accused walk slowly towards the fallen bodies of
Exequio Torres and Ismael Melicor (pp. 12­-13, t. s.n., Sanchez).
Flaviana was only about 13 meters away from the fallen bodies, which
were close to each other, and whom she imme­diately recognized to be
Torres and Melicor, having earlier seen them in T-shirts and talked to
them inside the market. Besides, she knew Torres and Melicor because
both had been her pupils in the elementary grades. She also knew
personally the accused because his wife is her niece (pp. 13-14, t.s.n.,
id.).

On the other hand, when Carina Cenita heard the successive shots
from her house, she looked out of the window and saw the accused
approach­ing his two dead victims, still holding his gun in port arm
position. Upon reaching the two dead bodies, he stooped and turned the
body of Torres face up, moved three (3) steps backward, and again fired
three shots at the corpse of Torres, after which he again approached the
dead body of Torres and touched his hand to make sure that he was
really dead. Thereafter, the accused slung his Thompson submachinegun
on his shoulder, pulled his .45 caliber pistol (Exhibit “4”) from his
waist, fired two shots with it into the air, and then placed the pistol
near the dead body of Torres. Afterwards, he ran back to the store of
Alima and from there fled from the scene (pp. 14-15, 26-27, id.)

After the accused had disappeared, Flaviana Cenita saw the wife of
Torres approaching the two dead men, and so, she (Flaviana) also ran
towards them. The two women then started crying and shouting for help
(p. 15, t. s. n., id.). Upon seeing her sister Flaviana and the widow
of Torres by the dead victims, Carina Cenita also ran down from her
house and approached them (p. 27, t. s. n. , id.).

Both deceased, according to the Cenita sisters, had blood stains on
their bodies and shirts. Flaviana Cenita found four (4) empty
ammunition shells near the dead body of Torres, while her sister Carina
found six (6) empty shells on the right side of the body of the same
deceased (pp. 15, 27, 34, t.s.n., id.). Carina also picked up about 12
empty shells not very far from the body of Melicor scattered along the
way towards the store of Alima. The sisters later delivered all the
empty shells that they had found in the premises to Sgt. Pedro Nucena,
the first policeman of Inabanga who arrived at the scene thirty minutes
after the shooting (pp. 16-17, 27, t. s. n, id.).

Later, many people came to view the dead bodies. Dr. Candido
Aparece, municipal health officer of Inabanga, also arrived and told the
members of the family of the two deceased to take their dead bodies to
their respective homes (pp. 16, 23, 28, 60-68, t. s. n. , id. ). While
Dr. Aparece was viewing the dead bodies, Sgt. Nucena blew his whistle,
and not long thereafter, Patrolmen Lucio Lacerna and Candido Geraldino
arrived (pp. 16, 29, t. s. n., id).

The assistance of the National Bureau of Investigation was
requested by the family of the victims to investigate the case. Upon
orders received, the dead bodies of Exequio Torres and Ismael Melicor
were exhumed, and Dr. Ceferino Y. Cunanan, regional medico-legal officer
of the NBI in Cebu City, made autopsy examinations of said bodies,
after which he embodied his findings in the Necropsy Report No. 69-NC-I
Exhibit “A” as to the deceased Ismael Melicor and the Exhumation Report
Exhibit “C” as to the deceased Exequio Torres (pp. 3-4, t.s.n., id.).
Ernesto Lopez, official crime photographer of the NBI, also took
pictures of the cadavers of Torres (Exhibits B-1 to B-8) and Melicor
(Exhibits A-1 to A-4) upon order and under the supervision of Dr.
Cunanan (pp. 4-6, t.s.n., id.). According to Dr. Cunanan, both Torres
and Melicor died of multiple gunshot wounds (p. 4, t.s.n., id.). On the
basis of the locations of the wounds of the two deceased, Dr. Cunanan
concluded that their assailant was at different positions when he shot
his two victims (pp. 7-8, t.s.n., id,), particularly in the case of the
deceased Melicor, where the assailant was, according to Dr. Cunanan, at
the back of the victim and slightly to the left when he fired at the
latter. (p. 4, t.s.n., id.).

Atty. Artemio Panganiban, Jr., supervising ballistician of the
East Visayan Region of the NBI in Cebu City, examined the Bridgepart
Thompson submachinegun, cal. 45, with Serial Number A-012098, Exh. “J”;
the .45 cal. auto­matic pistol with Serial No. 2020307, Exh. “4”; and
the several empty cartridge cases and two .45 cali­ber jacketed bullets,
submitted to him by NBI Senior Agent Sancho K. Chan, Jr., as well as
two .45 cali­ber jacketed bullets submitted by Atty. Norito Torres (p.
44, t. s. n., id. ). Panganiban declared that upon comparative
ballistic examination, aided by blown-up pictures Exhs. “O”, “O-1”, to
“O-3”), he observed that the evidence bullets submitted by NBI Agent
Chan (Exhibit “M-1”) and Atty. Norito Torres (Exhibit “N-1”)‘had, based
on their striations, characteristics similar to the test bullets
(Exhibits “K”, “K-1” to “K-2”) fired from the Thompson submachine-gun
Exh. “J”, and thereby concluded that the evidence bullets (Exhibits
“M-1” and “N-1”) were fired from the same gun as the test bullets.
Panganiban also made a comparison of the sixteen .45 caliber empty
shells submitted to him by NBI Agent Chan (Exhibits “P”, “P-1” to
“P-15”) and the test .45 caliber empty shells (Exhibits “S” and “S-1”)
fired from the same Thompson submachinegun Exhibit “J”, also aided by
the blown-up pictures of the same (Exhibits T, T-1, to T-17), and found
that both the evidence shells and test shells were all fired from the
same Thompson submachine gun Exhibit “J” (pp. 64- 66, t. s. n., id.).
Finally, Atty. Panganiban made a ballistic examina­tion of the automatic
pistol Exh. “4” which was submitted to him by NBI Agent Chan, and upon
comparing the test bullets fired from said pistol and the evidence
bullets Exhs. “M-1” and “N-1”, he found that they had different
characteristics. In short, his conclusion was that the evidence bullets
Exhibits “M-1” and “N-1” were not fired from the .45 caliber pistol
Exhibit “4” (pp. 48-50, t. s. n., id. ). All the foregoing findings
were incorporated by Atty. Panganiban in his Ballistic Reports Nos.
17-B-169 (Exhibits “Q” and “Q-1”) and 34-B-469 (Exhibit “U”) (pp. 48,
66, t.s.n., id.).

Atty. Sancho K. Chan, Jr., Senior Agent at the NBI East Visayan
Region, Cebu City, testified that this case was referred to their Office
sometime in January, 1969; that their regional director dispatched a
team composed of a medico-legal officer, a ballistician, and a
photographer to Inabanga, Bohol, to investigate the case; that he
started his own formal investigation of the case on March 12, 1969,
although a criminal complaint against Alfredo Libardo had already been
filed in the municipal court and later elevated to the court of first
instance (pp. 35-36, t. s. n. , id. ); that as part of his
investigation, he got six Thompson submachineguns from the Inabanga
police department for ballistic examination; that he also received the
.45 caliber pistol Exhibit “4” and the sixteen .45 caliber empty
cartridged Exhibits “P”, “P-1”, to “P-15” from the PC in Camp Dagohoy,
Bohol, and two bullets (Exh. “M-1”)from the NBI medico-legal officer,
all of which were subjected to ballistic examination (pp. 36-37, t.s.n.,
id. ); that he next interviewed witnesses in connection with the
incident and took the written statements of Flaviana Cenita (Exhibit
“D-1”), Constancia Cenita (Exhibit “D-2”), Susana Taguinacruz (Exhibit
“D-3”), Carina Cenita (Exhibit “D-5”), Marcelina Crispeda (Exhibit
“D-4”), Santos Melicor (Exhibit “D-6”) and Mamerto Petalcorin (Exhibit
“D-7”); and that he submitted a memoran­dum report of his
investigation,, together with all other pertinent documents, to the
provincial fiscal (pp. 37-38, t.s.n., id.).

During the pendency of the reinvestigation of this case before the
fiscal’s office, the NBI received reports that the accused policeman
Alfredo Libardo, who was out on bail, was then threatening the witnesses
against him. Likewise, when NBI Agent Sancho K. Chan, Jr. went to
Inabanga to take custody of the guns of its police department, he also
learned that there were two other pending warrants of arrest against
Libardo in other cases. Hence, Chan requested the muni­cipal judge to
issue the corresponding alias warrants of arrest against the accused and
accordingly, he arrested Libardo while the latter was in the house of a
member of the provincial board and turned him over to the PC at. Camp
Dagohoy, Bohol, for safe­keeping (Exhibits H, H-1 to H-5) (p. 38, t. s.
n., id.).

Teodora Estorba-Torres, 35-year old widow of the deceased Exequio
Torres, tes­tified that she and her late husband have six children, the
eldest of whom was only eleven years old while the youngest was only one
year old at the time of their father’s death; that her deceased husband
was the sole breadwinner of their family; that her husband was the
president of the ILU at the time of his death, and was then earning
about P80.00 a week (p. 75, t. s. n., id.); and that although she was
employed as a public school teacher about seven months before the death
of her husband, she received her first salary only a month after his
death (p. 76, t.s.n., id.). Teodora further testified that she incurred
funeral and burial expenses in the total amount of P3,450.00 for her
husband’s death, and that she contracted the services of Atty. Clarin
for the sum of P3,000.00 Atty. Valeriano S. Carillo for P2,000.00 and
Atty. Elpidio Baliran for P2,000.00, in addition to other expenses, for
the prosecution of this case (p. 76, t. s.n., id.).

Lastly, Florencia Melicor, 40-year-old banana vendor residing in
Inabanga, Bohol, testified that her eldest son, the deceased Ismael
Melicor, was 22 years old at the time of his death; that prior to his
son’s death, she was solely dependent of him for support; that he was
employed with the ILU earning P5.00 and sometimes P10.00 a day; and that
after her son’s death, she was forced to sell bananas for a living (p.
81, t. s. n., id.). Florencia also claimed that for funeral expenses,
prayer services, and death anniversaries of her deceased son, she spent a
total of P1,400.00, as well as the sum of P1,000.00 for the litigation
of this case (p. 82, t.s.n., id.). ” (Brief, pp. 3-15.)

When a person is accused of killing another person and he inter­poses
self-defense to justify the act, the fact of killing is necessarily
admitted. So it is in this case. The appellant states in his brief:

“The issue then is not who shot or killed who? For it is
admitted, firstly, that the victims were Exequio Torres and Ismael
Melicor, and, secondly, that the author of the killing is the herein
accused himself. Rather, the only ‘Gordian Knot’ to be resolved by the
Honorable Court, the one and only ‘Crux’ the defense most respectfully
prays the Highest Tribunal to carefully review, is: Whether there was
legitimate self-defense on the part of the herein accused as to justify
his act or to excuse him altogether from criminal and civil liability.”
(At pp. 5-6.)

The immediate question in this appeal is whether or not the appellant’s
claim of self-defense is well-taken. The consequential question, if the
answer to the first question is NO, is whether the killing was murder
as alleged in the information or only simple homicide.

The law is well-settled that a person who seeks justification for his
act must prove by clear and convincing evidence the presence of the
necessary justifying circumstances for having admitted wounding or
killing his adversary he is criminally liable unless he is able to
satisfy the court that he acted in legitimate self-defense. In other
words, it is incumbent upon the accused to show that the requisites of
self-defense were present.

The Revised Penal Code provides that anyone who acts in defense of his
person or rights does not incur any criminal liability provided the
following circumstances concur:

1. Unlawful aggression;

2. Reasonable necessity of the means employed to prevent or repel it;

3. Lack of sufficient provocation on the part of the person defending himself. (Art. 11, par. 1.)

To prove that he acted in self-defense, the appellant gives the following version of the killing:

“On that fatal day of January 25, 1969 accused was assigned by his
superior, Sgt. Pedro Neoceña, to stay on beat in Post No. 1, just in
front of the town public market, about 100 meters away from the town
presidencia (EXHIBIT Z). Another Policeman, Pat. Lucio Lascuña, was
assigned in Post No. 2, a distance of about 200 meters to Post No. 1.

“Accused Alfredo Libardo with a service Thompson (Exhibit J)
reported to his assigned Post No. 1 at about 8:00 o’clock that morning
of January 25th. At about 9:00 o’clock while thus standing with service
Thompson slung over his shoulder, Ismael Melicor, unnoticed and coming
from behind, suddenly grabbed the Thompson. A struggle for the
possession of the gun followed during which accused Libardo kicked
Ismael Melicor and the latter staggered. Almost simultaneously, Exequio
Torres who was at a distance of about 5 meters from Libardo drew his
.45 calibre pistol (EXHIBIT 4) and fired at accused Libardo who
providentially was able to duck. Accused using his Thompson retaliated
by firing back, hitting first Exequio Torres, and next Ismael Melicor
who wanted to rush forward at Libardo as if to grab once again the
latter’s Thompson. The two fell flat on the ground. Then accused
Libardo went near Exequio Torres to get Torres’ pistol (EXHIBIT 4), and
once in possession of it carefully wrapped it with his handkerchief to
avoid his (Libardo’s) hands being impressed on it.

“At this time when the burst of fire was over, Patrolman Lucio
Lascuña, who was on his beat at Post No. 2 as earlier stated, and
another Patrolman, Paulino Arcales, appeared. Accused Alfredo Libardo
surrendered to them and, instead of going direct to the municipaI
building, requested that he (Libardo) be brought to the PC Detachment of
the adjoining town of Jetafe, about 20 kilometers away, for safety and
to avoid retaliatory measures from the Torreses and Melicors. Patrolman
Paulino Arcades drove the motorcycle on which accused Libardo backrode
towards Jetafe and upon reaching said town, Libardo surrendered himself
and his weapon (EXHIBIT J) to PC soldier Torrejos. From Jetafe, Libardo
was brought by the PC soldier to Ubay town from where he was fetched by
Acting Provincial Commander Domingo Rio to the PC Headquarters at Camp
Dagohoy, Tagbilaran City.” (Brief, pp. 4-5.)

Upon the other hand, the prosecution’s version is that the appellant
shot Torres and Melicor with his service sub-machine gun and then he
fired his own .45 caliber pistol twice in the air and left it with the
dead bodies to make it appear that the gun had been used against him.

It is obvious from the foregoing that the basic issue is the credibility
of witnesses. The trial judge who heard the witnesses and observed
their demeanor when they testified chose to believe Flaviana Cenita,
Carina Cenita and Mamerto Petalcorin. We see no reason to disturb the
conclusion of the trial judge.

The appellant states that the Cenita sisters “are the first degree
cousins of the wife of the victim Exequio Torres.” (Brief, p. 2.) He
also says that “Mamerto Petalcorin is also a relative by affinity to the
wife of Exequio Torres in that the latter’s wife is the first degree
[?] of Mamerto’s.” (Id., p. 8.) He implies that the three
witnesses were prejudiced against him. The implication is not
well-taken. We quote a portion of the trial court’s decision:

“Besides, the Court has carefully studied the conduct and demeanor
of the witness both the prosecution and the defense. The prosecution
witnesses, like the Cenita sisters, were closely related by affinity to
the accused, yet despite the long and exhaustive cross-examination, they
re-affirmed what they declared on direct examination. On the contrary,
the accused denied having any relationship with the eyewitnesses
Flaviana Cenita and Carina Cenita, but on cross-examination he admitted
both witnesses and himself had blood relationship. This proves that
accused Libardo was not candid to the Court on some important facts
which affects his credibility. Moreover, there has been no sufficient
evidence adduced by the defense to show that the prosecution witnesses
merely invented a story, or presented any cause of bad feeling that
would impel the eyewitnesses to testify falsely against the accused and
impute on him the grave offense of murder. There had been no friction
whatsoever, there had been no misunderstanding, no quarrel with the
accused, and for the lack of these, the Court has to give more weight
and credence on their testimony because the credibility of the
prosecution witnesses has never been impaired. On the contrary, the
defense witnesses testified incoherently and their testimonies appear
more biased and partial in all respects.” (Expediente, pp. 524-525.)

We sustain the trial court’s finding that the appellant’s evidence does not convincingly prove that he acted in self-defense.

The information alleges the following qualifying circumstances evident premeditation, treachery and superiority.

The evidence for the prosecution shows that the relationship between the
appellant and the deceased Torres was not cordial and in fact it can be
described as hostile. But this fact does not alone prove that the
killing of Torres and Melicor was done with evident premeditation.
Absent in the record is evidence of cool thought and reflection on the
part of the appellant to kill the two victims over a space of time to
arrive at a calm judgment.

That there was treachery in the killing is manifest from the sudden
attack with a submachine gun which gave the victims no chance to defend
themselves.

Superiority is absorbed in treachery.

As to the generic aggravating circumstances, We agree with the trial
court that abuse of public position can be properly assigned since the
appellant was a policeman but not that of vindictiveness. The generic
aggravating circumstance is off-set by the mitigating circumstance of
voluntary surrender with the result the appellant is guilty of two
murders on the whole without any attendant circumstances.

The penalty for murder is reclusion temporal in its maximum period to death. In the light of the foregoing the appropriate penalty for each murder is reclusion perpetua.

WHEREFORE, the judgment of the trial court is modified in that the appellant is sentenced to suffer the penalty of two reclusion perpetua; to pay the heirs of the deceased Exequio Torres and Ismael Melicor each the sum of P30,000.00; and to pay the costs.

SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Aquino, Concepcion, Jr., Guerrero, De Castro, Melencio-Herrera, Plana, Escolin, Relova, and Gutierrez, Jr., JJ., concur.