THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RUBICO SAGRE, DEFENDANT-APPELLANT.

Appeal by Rubico Sagre
from the judgment of the Court of First Instance, Branch V, Iloilo, 11th Judicial District, Hon. Valerio V. Rovira, presiding,
finding him and his brother Balbino Sagre guilty beyond reasonable doubt of murder defined and
penalized in Article 248 and homicide defined and penalized in Article 249 of
the Revised Penal Code, respectively,
and sentencing them respectively to reclusion perpetua
with all the accessory penalties provided for by law and imprisonment of not
less than ten (10) years, eight (8) months of prision
mayor as minimum, not more than fifteen (15) years, six (6) months and
twenty (20) days of reclusion temporal as maximum with all the
accessory penalties provided for by law and to jointly and severally indemnify
the heirs of Ramon Adayon, Sr., the sum of P12,000
and the further sum of P54,000.00 for loss of income, plus the sum of P5,000.00
for moral damages, and to pay the costs. 
Balbino Sagre did
not interpose any appeal from the judgment.^[1]

On November 25, 1969,
the provincial fiscal of Iloilo
filed an information against the Sagre brothers
charging them with murder as follows:

x x x

That on or about October 31,1969, in the municipality of Buenavista, Sub-province of Guimaras,
Iloilo, Philippines and within jurisdiction of this Court, the above-named
accused, conspiring, confederating and mutually helping one another, armed with
a knife (plaminco) and a kitchen knife, and with a
decided purpose to kill by means of treachery and evident premeditation, did
then and there willfully, unlawfully and feloniously attack, assault and stab
one RAMON ADAYON, SR., with the weapon with which they were provided, thereby
inflicting upon the latter multiple stab wounds on the vital parts of the body
which caused the immediate death of said Ramon Adayon,
Sr.

CONTRARY TO LAW.^[2]

Upon arraignment on December 10, 1969, the two defendants pleaded
not guilty.  At the trial, the
prosecution presented in evidence the testimony of the following
witnesses:  (1) Dr. Edgardo
G. Jabasa, Rural Health Physician Policeman (2) Sgt. Ruperto Zaragoza, (3) Lorenzo
Arellano, (4) Oscar Penit, (5) Ramon Adayon, Jr., and (6) Araceli Adayon, together with the Medico-Legal Autopsy Report dated
November 4, 1969 issued by Dr. Edgardo G. Jabasa (Exhibit “A”), the knife used by Balbino Sagre in stabbing Ramon Adayon (Exhibit “B”) with its scabbard (Exhibit
“B-1”), the knife used by Rubico Sagre (Exhibit “C”), the pants ( Exhibit
“D”), bolo (Exhibit “E”), shirt (Exhibit “F”) and
handkerchief (Exhibit “F-1”), pictures showing the cadaver of Ramon Adayon (Exhibits “C”, “C-1”, “C-2,
“C-3” and “C-4”), a sketch of the crime scene (Exhibit
“H”) showing the relative positions of the Diamante Jumping Horse
(Exhibit “H-1”) and the Shooting Gallery (Exhibit “H-3”);
and the hat of the deceased (Exhibit “I”) and his slippers (Exhibits
“J” and “J-1”).  In
his defense, accused (1) Balbino Sagre,
adduced in evidence the testimony of (2) Aurelio Sta. Ana and that of his own,
while accused (1) Rubico Sagre
adduced in evidence in his
defense his own testimony and that of (2) Balbino Sagre and (3) Aurelio Sta. Ana, together with documentary
evidence consisting of the affidavit of Oscar Penit
(Exhibit “I”).^[3]

The evidence for the prosecution establishes, as correctly
synthesized by the trial court, the following —

“(A)t about 9:00 o’clock
in the evening of October 31, 1969,
Ramon Adayon and his son Ramon Adayon,
Jr. left their home in Barrio Rizal, Buenavista, Iloilo,
for Barrio Sto. Rosario, of the same
municipality.  When they arrived in Sto. Rosario,
they joined the game of the Diamante Jumping
Horse which happened to be there because of the barrio fiesta which had just
been over.  They won a prize consisting
of a glass bowl.  They continued
playing.  Then Balbino
Sagre arrived, drunk and shouting, “Stop the
game.  Who is the bravest man in this
group?” brushing aside people who happened to be on his way.  The hand of Ramon Adayon,
Sr., which held the glass bowl was hit and the bowl fell down and was
broken.  Ramon Adayon
asked, “What are you doing, Benong?’ Balbino Sagre boxed Ramon Adayon and then drew his knife (Exhibit “B”) and
stabbed Ramon Adayon who was hit on the chin.  Ramon Adayon held
the hand of Balbino Sagre
which held the knife (Exhibit “B”) and the two grappled for the
possession of the knife.  The people
scampered.  Ramon Adayon
shouted, “Help, dispossess him of the knife.” No one came to
dispossess Balbino of his knife.  Then all of a sudden Rubico
Sagre, the brother of Balbino,
appeared and stabbed Ramon Adayon at the back.  Forthwith, Ramon Adayon
relaxed his grasp of the hand of Balbino who immediately
freed himself and right then and there stabbed Ramon Adayon
on his side.  Ramon Adayon
fell to the ground.  The two brothers
immediately rode on him and continued stabbing Ramon Adayon.  Sgt. of Police Ruperto
Zaragoza who was in the house of Victor Ramos heard
the commotion.  He jumped down and ran towards
the feria blowing his whistle.  When Sgt. Zaragoza
reached the place of the incident, he met Rubico Sagre with butcher’s knife (Exhibit “C”).  Sgt. Zaragoza got
the knife from him and brought him by the side of the road and told him to stay
there.  He returned to the place of the
incident where he saw Ramon Adayon laying on the
ground and Balbino Sagre
standing by and looking at the deceased. 
He placed Balbino Sagre
under arrest and twisted his hand which held the knife (Exhibit “B”)
and as a consequence the knife fell to the ground.  He did not mind the knife but brought Balbino Sagre with Rubico Sagre to the barrio police
station.  While on their way, they met
Patrolman Gabinete and two PD soldiers — S/Sgt. Lampa and Sgt. Trimañez.  He turned over the persons of Balbino Sagre and Rubico Sagre to them.  He returned to the crime scene.  The cadaver of Ramon Adayon
was still there.  He looked for the
butcher’s knife (Exhibit “B”). 
He found it and its scabbard (Exhibit “B-1”).  Pictures were taken of the cadaver of Ramon Adayon (Exhibits “G”, “G-1” to
“G-4”) and a sketch was made of the crime scene (Exhibit
“H”).  At 10:00 o’clock the following morning, November 1, Dr. Edgardo G. Jabasa, Rural Health
Physician of Buenavista, Guimaras,
Iloilo, conducted an autopsy on the
cadaver of Ramon Adayon, and on November
4, 1969, he submitted his Medico-Legal Autopsy Report (Exhibit
“A”) with the following findings:

1.   Stabbed wound back, left side 1-3/4 inches
wide, penetrating about 48 ins. from the sole of left foot, about 1 inch to the
left of the midvertebral line directed anteriorly and slightly inferiorly and to the left with
severe injury to the descending aorta, and trachea and penetrating the upper
segment of the lower lobe of the left lung and injuring the posterior rib.

2.   Stabbed
wound, right side back 3/4 inch
wide, about (1) inch from the midvertebral line, and
45 inches from the sole of right foot penetrating directed anteriorly
and slightly inferior involving the lower lobe of right lung.

3.   Stabbed wound 3/4 inch wide 44 inches from
sole of right foot mid-axillary line, 9th ICS
penetrating directed horizontally, slightly anterior and medially, penetrating
the right diaphragm, right lobe of the liver and transverse colon.

4.   Stabbed wound, 3/4 inch wide, right scapular
region, 2 inches deep, non
penetrating involving the skin, subcut tissue, scapular
muscle, and grazing scapular bone.

5.   Stabbed wound, left sub-mandibular
region, 3/4 in. wide, and 1 in. deep, involving skin and subcutaneous tissue.

Body is in state of rigor
mortis.  Hemothorax
– left 2000 cc.  Paleness of viceral organs. 
Heart and big blood vessels almost empty.”

Cause of Death:  Instantaneous death due to shock, due to
internal hemorrhage, severe, secondary to stabbed wound injuring the descending
aorta.  (Exhibit “A”).^[4]

Accused, now lone
appellant, Rubico Sagre interposed defense of a
relative, i.e., his brother, co-defendant Balbino
Sagre.  He adduced
his testimony and that of Balbino Sagre
and Aurelio Sta. Ana and Exhibit “1”, Affidavit of Oscar Penit.  His version
of the stabbing incident and the alleged surrender follows:

In the evening of October
31, 1969, a week after the barrio fiesta, there were still various
games of amusement in the Barrio of Sto. Rosario,
Buenavista, Guimaras, Iloilo,
among which were the jumping horse and shooting gallery (t.s.n.
pp. 12-13, Tauro and Tauro).  At about nine
o’clock of that same evening in the same place, the accused Balbino Sagre, younger brother of
the accused-appellant, went to the jumping horse stand owned by a certain Mrs.
Diamante with the intention of requesting the persons working therein to
announce the loss of his son Arnaldo.  When the accused Balbino
Sagre was about to enter the jumping horse stand, he
accidentally slightly touched the bowl the deceased Ramon Adayon,
Sr. was holding as his prize for winning a game causing the same to fall.  When Balbino Sagre was already inside the jumping horse stand, he was called
by the deceased to go out and the said accused went out of the jumping horse
stand whereupon he was confronted by the deceased in an angry and challenging
manner as to why he did not apologize for his act.  The accused Balbino
Sagre asked for an apology and explained to the deceased
that his act of touching the bowl was unintentional and without malice,
whereupon the deceased Ramon Adayon, Sr. struck him
with the bowl.  Fortunately, the accused Balbino Sagre was not hit.  Then the deceased boxed the said accused but
again the latter was not hit as he was able to step backwards (t.s.n., pp. 18- 21, Equia).

Inasmuch as there was no more place to step back as behind the
accused Balbino Sagre was
already the jumping horse stand and the deceased made the motion of pulling
something from his back pocket, the said accused dashed towards the deceased,
hugged him and later on grabbed
from his back pocket what turned out to be a small knife (Exh.
“B”).  At this juncture, the
deceased being bigger and stronger than the accused Balbino
Sagre, pushed the latter against the wooden railing
of the jumping horse stand causing the back of the accused to hit one of the
threaded bolts joining the wooden railings and wounding him at the back which
wound bled profusely.  Because the
accused Balbino Sagre was
no match in strength against the deceased, the said accused, in order to free
himself from the grasp of the deceased made a thrust of the knife he was
holding and hit the deceased on the left chin. 
After this, they grappled for the knife (t.s.n.,
pp. 21-22; 24-25, Equia).

While the above incident was taking the people around scampered for
safety.  The music from the jumping horse
stand stopped.  At about this time, the
accused-appellant Rubico Sagre
was in his house about 100 meters away cutting “kangkong”
leaves for his pigs.  All of a sudden, he
heard people running near his house and shouting that his younger brother Balbino Sagre and the deceased
Ramon Adayon, Sr. were stabbing each other near the
jumping horse gallery.  Upon hearing this
and remembering that his children were also in the scene of the incident, the
accused-appellant proceeded thereto whereupon arrival he saw his younger
brother Balbino Sagre
bloody at the back grappling for the knife (Exh.
“B”) with the deceased with the sharp pointed edge of the knife
already pointed very close to the neck of his younger brother and the deceased
was pushing it, and believing that the life of his brother was already in
imminent danger as with one push from the deceased who was very much bigger and
stronger the knife would penetrate the throat of his brother and kill him, the
accused-appellant rushed towards the deceased and stabbed him once only as may
be evidenced by the Autopsy Report (Exhibit “A”) and by the declaration
of Dr. Edgardo
Jabasa (t.s.n., pp. 5, 9, Tauro and Tauro).  The accused appellant did not know which part
of the body of the deceased was hit because the latter was moving at the time
the former stabbed him (t.s.n., pp. 46-49, Equia; pp. 70-71, Tauro and Tauro).^[5]

The trial court disbelieved and discredited as
“untenable” appellant’s theory and the alleged surrender, thus —

x x x

As regards accused Rubico Sagre, he claims that he stabbed Ramon Adayon,
Sr. in defense of relative.  He said he stabbed
Ramon Adayon once when he saw him (Ramon Adayon) with a knife (Exhibit “A”) very close to
and about to hit the neck of his brother. 
This claim is untenable because according to Rubico
Sagre he stabbed Ramon Adayon
while he (Ramon) and Balbino Sagre
were grappling for the possession of the knife (Exhibit “A”).  Rubico also claimed
that Ramon Adayon saw him when he (Rubico) stabbed Ramon. 
This is untenable.  Rubico Sagre stabbed Ramon Adayon at the back (Wound No. 2, Exhibit “A”) and
even if Ramon Adayon saw Rubico
before the latter stabbed Ramon, the deceased could not do anything – he was
practically helpless.  The Court holds
that Rubico Sagre stabbed
Ramon Adayon with treachery.  He committed murder.

They claimed that they voluntarily surrendered to Sgt. Zaragoza immediately after the commission of the
felony.  This clain is untenable.  According to Police Sgt. Zaragoza
he arrested both accused, although they did not resist arrest.

The claim of voluntary surrender is untenable.  Police Sgt. Zaragoza
testified categorically that he arrested Rubico Sagre with the weapon (Exhibit “C”) in his hand,
and after dispossessing him of the weapon and arresting him, he went to the
place of the crime scene and there he saw Balbino Sagre standing and looking at the deceased while holding
Exhibit “B”.  After twisting
the hand of Balbino Sagre
to force him to release the weapon, Sgt. Zaragoza
arrested Balbino Sagre.

x x x

The felony committed by Rubico Sagre as already said is murder defined in Article 248 of
the Revised Penal Code with the qualifying circumstance of treachery.  There are neither aggravating nor mitigating
circumstances present in the commission of the felony which provides a penalty
of reclusion temporal in its maximum period to death.  Hence, the penalty prescribed by law shall be
imposed in its medium period (subdivision 1, Article 64, The Revised Penal
Code), of reclusion perpetua.”^[6]

Appellant appealed and now
assails the judgment alleging that the trial Court erred –^[7]

(1)     . . . in not acquitting the
accused-appellant (Rubico Sagre)
of the crime charged in the information on the ground of defense of relative.

(2)     . . . in convicting the accused-appellant
of murder charged in the information.

(3)     . . . in not holding that the
accused-appellant voluntarily surrendered to the proper authorities.

In support of the first and second assigned errors which
appellant thru counsel de parte^[8]
argues jointly, he contends in connection with his claim of defense of his
brother, Balbino, that all elements for such
justifying circumstance are present in his case; that the provocation and
unlawful aggression came from the victim, Ramon Adayon,
Sr., now deceased, on the basis of the testimonies of Balbino
Sagre and Aurelio Sta. Ana, another defense witness;
and that the means employed by him was reasonably necessary as Ramon was much bigger and stronger than Balbino, and that he stabbed Ramon “with no other
intention than that of saving the life of his brother”.^[9] Finally, he argues that even if his brother Balbino provoked the fight, his defense is still
legitimate, because when the fight between Balbino
and Ramon started at around 9:00 in the evening, he was not present and was in
“honest belief” that his younger brother was a victim of aggression
by Ramon Adayon, Sr.^[10]

On the second assigned error, accused-appellant argues that
treachery does not exist in this instance since there is no evidence that he,
prior to the moment of the killing, resolved to commit the crime or that the
death of the victim was the result of meditation, calculation or reflection;
that the prosecution utterly failed to prove that he deliberately and
consciously planned to stab the deceased treacherously at the back.^[11]

1.  The claim of appellant
that he is entitled to the justifying circumstances of defense of a brother is
untenable and without merit.  It is based
solely upon his version of the stabbing incident which in turn is premised
solely on his brother’s and defense witness Sta. Ana’s testimonies.  But the same is contrary to the facts
established by the evidence on record and as found by the trial court and he
has not shown why the trial court’s findings – based on the consideration of
the total evidence adduced – should be disbelieved.  As the People’s Brief^[12]
explains by way of traverse of this first alleged error –

x x x

x x x.  Two eye-witnesses, Oscar Penit
and Ramon Adayon, Jr. (son of the deceased),
testified to the effect that when Balbino Sagre arrived at the Jumping Horse Stand at Barrio Sta. Rosario
in the evening of Oct. 31, 1969, he said something like, “Stop the game,
who is the bravest in this group?” And then, Balbino
brushed aside Ramon Adayon, Sr., causing a ‘prize’
bowl that the latter was holding to fall to the ground where it broke into pieces.  At this juncture, Balbino
drew a kitchen knife and thrust it upon Ramon, Sr. who was hit at the lower
chin.  A commotion at the stand
ensued while Ramon Sr. grabbed the hand of Balbino
which was holding the knife as he shouted, ‘Take away his knife.’ but nobody
came to help.  Just then, Rubico Sagre, the appellant,
appeared from behind and stabbed Ramon, Sr. at the back. 
Balbino followed-up stabbing Ramon, Sr. at
his right side, and then the latter fell to the ground sidewise.  But
as he fell, “they placed themselves on top (of Ramon, Sr.) and continued
hacking him” (pp. 40, 41, 43-46, t.s.n.,
Feb. 19, 1970, Tauro; pp. 50-52, t.s.n.,
March 12, 1970, Tauro).

From the above
narration of facts, the provocation and unlawful aggression undoubtedly came from
Balbino Sagre.  It is argued, however, that even if Balbino provoked the fight, Rubico’s
defense of a relative is still legitimate because when the fight between Balbino and the deceased started at about nine o’clock in the evening, the accused-appellant
was not even in the scene of the incident. 
Appellant’s contention is, therefore, ‘honest belief’ that Balbino, his younger brother, was a ‘victim of aggression
of the deceased’ (pp. 17-19, Appellant’s Brief).

We find appellant’s contention hard to believe.  It is admitted by the defense that when Rubico Sagre arrived at the scene
of the scuffle, he saw Balbino holding a kitchen
knife, although appellant claims to have seen Ramon Adayon,
Sr. pushing the hand of Balbino (which was holding
the knife) towards the neck of the latter (p. 47, t.s.n.,
April 1, 1970, Equia).  But from the defense’s own admission, the
one holding the knife was Balbino and Adayon had no weapon at all.  It was
easier to infer that Balbino was the aggressor.  Granting that Rubico’s
brother was then in danger because the knife he (Balbino)
was holding was being pressed towards his throat, the question arises as to
the reasonable necessity of the means employed to repel the deceased’ ‘unlawful
aggression‘.  Rubico
first testified that he stabbed Ramon Adayon, Sr. ‘in
the course of his grabbing with Balbino‘, and he
altered his reply by saying that he stabbed Adayon
when they were ‘face to face with each other’ and while Ramon Sr. and his
(appellant’s) brother ‘were both holding their hands and the knife was very,
very close to the neck of Balbino‘ (pp. 48, 50, 51, t.s.n., supra). 
At such time, under the circumstances alleged by the defense, Rubico could very well have helped his brother subdue Adayon without the use of any weapon, and thus avert the
danger that allegedly threatened Balbino.  Assuming
that the passion of moment overwhelmed Rubico, the
use of his knife against Adayon in order to help his
brother certainly did not justify stabbing Adayon
with a fatal thrust (stab wound no. 1, Exhibit “A”, p. 4, t.s.n. Jan. 26, 1970, Tauro).  That the first thrust of the knife by Rubico must have been the fatal one is substantiated by the
fact that from his testimony, he stated that after he stabbed Adayon, the latter released the hand of Balbino
Sagre from his grip, whereupon, while Ramon Adayon, Sr., fell, Balbino also stabbed Ramon (p. 48, t.s.n.,
April 1, 1970, Eguia).  It is interesting to note that the
accused Rubico Sagre was
unable (or hesitated) to reveal the part of Adayon’s
body which he hit with his knife, and that his testimony discloses a laborious
attempt to make it appear that there was no treachery when Rubico
stabbed Adayon. 
But the evidence on record does not suggest this trend of thought.  It cannot
be true, as contended by the Sagre brothers, that
they each delivered only one thrust of
their knives upon Adayon, because the medical
report (Exh. “A”) showed that a total of
five (5) stab wounds were sustained by the deceased.  This, in the face of the undisputed fact that
only the Sagre
brothers had fought with Ramon Adayon, Sr. and that
immediately after the struggle between them, a policeman, a Sgt. Zaragoza, arrived and caused the former to be brought to
the police headquarters (p. 14, t.s.n., Feb. 6, 1970,
Tauro).^[13]

x x x

2.  The claim under the
second assigned error that the homicide was not qualified by treachery is also
without merit.  Thus, again, as the
People’s Brief explains, there is murder qualified by treachery when it appears
that the method of assault adopted by the aggressor was deliberately chosen
with a special view to the accomplishment of the act without risk to the
assailant from any defense that the party assailed may make – which was the
case of herein appellant.  Thus –

When Rubico stabbed Ramon Adayon, Sr., the indications are that he hit the latter at
the back (the fatal wound), considering that at that time Rubico
arrived while his brother and the deceased were still struggling, and Rubico had an easier altho mobile
target.  With the least danger to himself,
it was not unnatural for him to have struck Ramon Sr. at the back.  It has been held that there is murder
qualified by treachery when it appears that the method of assault adopted by
the aggressor was deliberately chosen with a special view to the
accomplishment of the act
without risk to the assailant
from any defense that the party assailed may make (People vs. Calinawan, 83 Phil. 647; People vs. Tumaob,
83 Phil. 738; People vs. Abalos, 84 Phil. 771).  It is worth mentioning that during the struggle
between Balbino Sagre and
Ramon Adayon Sr. 
Rubico Sagre
appeared from behind all of a sudden and stabbed Adayon
at the back (pp. 38, 44, t.s.n., Feb. 6, 1970, Tauro).  This belies the accused’s
(Rubico) contention that when he stabbed Ramon, Sr.,
the latter was facing both the Sagre brothers (p. 50,
t.s.n., April 1, 1970).  Even then, Rubico’s
own admission that ‘Both Balbino and Ramon were
running far from me, and in the course of their running from me, I hit him.’ (p. 51, t.s.n., supra), lend credence to the theory of the
prosecution that treachery was used by Rubico because
he had to approach Adayon when he stabbed the latter, and when he did, Adayon was helplessly unknowing of
his intentions, and even if he
were, Adayon would not have threatened
Rubico with any injury, for, he had no weapon with him.  There was, therefore, completely no risk to Rubico’s life when he stabbed Adayon,
as compared to the inverse situation as against the deceased whose body was on the
other hand exposed to the peril of Rubico’s
knife.  The fact that it does not appear
that Adayon had even tried to repel the attack by Rubico, the more underscores his helplessness or lack of awareness
to the treacherous intrusion of Rubico.

Furthermore discrediting the defense version is that fact that
two prosecution witnesses (Penit and Ramon Adayon, Jr.) testified having seen the deceased still being
attacked by the Sagre brothers after he fell to the
ground.  This then explains the other
wounds on the body of the deceased.  The
timely arrival of Sgt. Zaragoza prevented the two
from inflicting further injury on Ramon Adayon, Sr.
as his testimony showed that when he came upon the scene, Balbino
who was bending over the body of the deceased ‘was still in the act of stabbing
with his fist closed.’ (p. 22, t.s.n., Feb. 6, 1970, Tauro), while the appellant Rubico
had just turned his back from the dead body ‘maybe with the intention to
escape…’ (p. 23, t.s.n., supra).  It must be noted that while Sgt. Zaragoza rushed to the scene, he was continuously blowing
his whistle (p. 13, t.s.n., supra), and this
could have warned the appelland who, upon Zaragoza‘s arrival,
was in the act of running away.^[14]

The finding and resolution of the trial court that under the
information charging them for murder, Balbino is
guilty only of homicide and Rubico of murder — where
both Sagre brothers assaulted a common victim, Ramon Adayon Sr. — is not unprecedented.  Thus, in 1930, this Court, speaking through
Mr. Justice Romualdez^[15]
held — in a similar case where two persons were charged with murder for the
death of another — that while
treachery, as a qualifying circumstance, is a condition which should be
considered against all persons participating or cooperating in the perpetration of
the crime, where it (treachery) can only be imputed to one of the accused who
inflicted the wound upon the deceased while the latter was struggling with the
other defendant, although the two assailants helped each other in attacking the
deceased, only the accused who inflicted the wound upon the deceased under
treacherous circumstance may be found to have done so with treachery, since
the evidence do not show that the two assailants have conspired to take the
victim’s life.

Prescinding from the foregoing
discussions, the defense of relative invoked by appellant is not applicable for
it lacks the essential elements of a clear unlawful aggression on the part of
the deceased and reasonable necessity of means employed by appellant Rubico Sagre;^[16]
and since it is further established by the record that treachery attended the
stabbing of Ramon Adayon, Sr., the accused-appellant
committed upon the person of the deceased the crime of murder.^[17]

3.  In support of the third
assigned error, appellant argues that he voluntarily surrendered to the proper
authorities; that accused-appellant and his younger brother, Balbino, capitulated to Sgt. Zaragoza
of the Buenavista Police Department; and that they
did not offer any resistance nor did they try to escape.^[18]

This argument is obviously without merit.  The person to whom they surrendered, as the
people’s brief observes, is Sgt. Ruperto Zaragoza of the Police Force of Buenavista,
Guimaras, Iloilo.  He was a witness for the prosecution and his
narration of the manner he placed appellant and his brother under arrest does
not support the claim of the appellant. 
The Solicitor General continues thus —

x x x

On the contrary, he (Sgt. Zaragoza)
testified that he stopped Rubico Sagre
from running, arrested the latter, and dispossessed him of the knife he was
holding (Exh. “C”).  Seeing then that Balbino
who was bending over the body of Ramon Adayon, Sr.,
and in the act of stabbing the latter, Sgt. Zaragoza
ordered Rubico to stand by the side of the road, and
he proceeded to where Balbino was.  Immediately, he approached Balbino, took hold of his hand (which was holding a knife)
and twisted it causing the knife (Exh. “B”)
to drop (pp.  13, 20-24, t.s.n., Feb. 6,
1970, Tauro).  What the appellant is insisting on as
voluntary surrender is the lack of resistance offered by the accused Sagre brothers when Sgt. Zaragoza
arrested them.  But as this policeman
testified, “It was already impossible for Balbino
(and Rubico) to resist because I already arrested
him’ (p. 24, t.s.n., supra).  The actuations of the Sagre
brothers as seen by this witness do not at all support the version of the
defense which attempted to show that, after each of them had stabbed Ramon Adayon, Sr., Rubico immediately
told his brother Balbino to surrender to the said
policeman, and they both surrendered (pp. 48-49, t.s.n.,
April 1, 1970, Eguia).  If they did surrender voluntarily, it would
not have been necessary
anymore for Sgt. Zaragoza to stop and arrest
each of them from what they were doing at the time – Rubico,
from running away; and Balbino, from further stabbing
Ramon Adayon, sr. – and to dispossess them of the
knives they were caught with.

A surrender to be voluntary must be spontaneous, showing the intent
of the accused to submit himself unconditionally to the authorities, either
because he acknowledges his guilt, or because he wishes to save them the
trouble and expense necessarily incurred in his search and capture.  However, a surrender is not voluntary when forced
by circumstances as when escape was impossible under the circumstances (Revised
Penal Code, Luis B. Reyes, 1958 Rev. Ed., Book One, p. 179).  This was in fact the situation of the Sagre brothers at the time. 
Under the circumstances, the appellant cannot be credited with the
mitigating circumstance of voluntary surrender under Article 13, paragraph 7,
of the Revised Penal Code.^[19]

IN VIEW OF ALL THE
FOREGOING, THE JUDGMENT APPEALED FROM IS HEREBY
AFFIRMED IN TOTO, WITH COSTS AGAINST APPELLANT.

SO ORDERED.

Fernando, (Chairman), Barredo, Aquino, and Concepcion, Jr., JJ., concur.

Antonio,*
J., took no part.

Abad Santos, J., on leave.

^[1]
Brief, Defendant-Appellant, Decision, pp. S & T.

^[2]
Id., id.,
p. B.

^[3]
Id., id.,
pp. B-D.

^[4]
Id., id.,
pp. D-I; see also Brief, Appellee, pp. 2-4.

^[5]
Brief, Appellant, pp. 6-10.

^[6]
Brief, defendant-appellant, Decision, pp.
N-Q.

^[7]
Id., Id., pp.
11-12, & 23.

^[8]
Atty. Alfonso V. Manayon of Bacolod City.

^[9]
Brief, Appellant, pp. 11-16.

^[10]
Id., id.,
pp. 17-20.

^[11]
Id.,
id., pp. 20-23.

^[12]
Per Solicitor General now Justice Felix Q. Antonio, assisted by Acting
Assistant Solicitor General Rosario
A. de Leon and Solicitor Guillermo Nakar, Jr.

^[13]
Brief, Appellee, pp. 5-8.

^[14]
Brief, Appellee, pp. 9-11.

^[15]
People v. Esteban Carandang, et al., G.R. No.
L-32039, February 26, 1930,
54 Phil. Reports 503.

^[16]
Article 11(2), Revised Penal Code.

^[17]
Article 248, id.

^[18]
Brief, Appellant, pp. 23-28.

^[19]
Brief, Appellee, pp. 11-13.

*
Justice Felix Q. Antonio filed the People’s Brief as the Solicitor General.