PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PEDRO MONDIJAR Y GALLARES, ACCUSED-APPELLANT.

On appeal is the decision^[1] of the Regional Trial Court of
Cataingan, Masbate, Branch 49, dated March 17, 1999, in Criminal Case No. 812,
finding appellant Pedro Mondijar y Gallares guilty of the murder of Pamfilo
Aplacador^[2]
and imposing upon him the penalty of death. Because appellant was more than seventy-nine (79) years old at the time
of the commission of the offense, the sentence was commuted to reclusion perpetua, pursuant to Article
47^[3]
of the Revised Penal Code, as amended by Republic Act No. 7659.

Appellant and the victim were neighbors in Cataingan,
Masbate. Although appellant was the
father-in-law of the victim, apparently, there was bad blood between them. In a previous incident, the son-in-law
(Aplacador) had stabbed appellant.^[4]
Whatever their quarrel, it was never patched up. A month later, the ill feelings erupted anew with fatal results
for Aplacador.

In an information dated June 16, 1994 appellant was charged with
murder committed as follows:

That sometime on February 26, 1994 at about 6:30 o’clock in the
evening more or less, at Barangay Domorog, Municipality of Cataingan, Province
of Masbate, Philippines, within the jurisdiction of this Honorable Court,
above-named accused with intent to kill, evident premeditation, treachery, did
there and then wilfully, unlawfully and feloniously, attack, assault, stab, hack,
with the use of a sharp and pointed bolo, one PAMFILO APLACADOR hitting him at
the different parts of his body which was the direct and the logical cause of
his instantaneous death.

CONTRARY TO LAW.^[5]

Upon arraignment, accused pleaded not guilty. Trial then ensued.

The Office of the Solicitor General (OSG) summed up the
prosecution’s version in its brief, as follows:

Around six o’clock in the evening of February 26, 1994, while
prosecution witness Josephine Lebuga was at the back of her house located at Sitio
Mangga, Domorog, Cataingan, Masbate feeding her pigs, she heard a commotion and
shouting at the house of her neighbor appellant Pedro Mondijar. Appellant’s house is about fifteen (15)
meters away from Lebuga’s house, thus, the sound coming from appellant’s house
was audible to Lebuga from where she was standing. Lebuga heard the voice of appellant’s son-in-law, the deceased
Panfilo Aplacador begging appellant “Pay, don’t kill me because I am your son.” Then she heard appellant reply, “Okay let’s
go to your house.” After feeding her
pigs, Lebuga went inside her house (citation omitted).

Around six thirty in the evening of the same day, prosecution
witness Rogelio Booc was walking along Mangga Street, Cataingan, Masbate, on
his way home. While working (sic), he
saw his neighbor, herein appellant, on the road about fifty (50) meters away,
walking behind Aplacador and holding a long bolo about thirty (30) inches in
length. Appellant hit Aplacador on the neck with the bolo, thereby decapitating
him. When Aplacador fell down,
appellant picked up the detached head and threw it about five armslength away
from its body. Afraid of what he saw,
Booc ran towards his house which is about two hundred meters away from the
scene of the incident. Booc informed his
wife about the incident and they closed all the windows of their house because
they feared for their lives (citation omitted).

The following morning, February 27, 1994, instead of reporting the
incident to the police, Booc went to appellant’s house and told appellant that
he saw a dead body lying along Mangga Street which looked like appellant’s
son-in-law. He told appellant to
proceed to Domorog to seek the help of barangay councilor in getting
Aplacador’s body. Afraid that he might
be killed, appellant did not heed Booc’s advise but instead went to Burias
Island, Masbate (citation omitted).

On that same day, prosecution witness Lilia Condrillon learned
about the tragic death of her brother. She proceeded to the Philippine National Police Station of Cataingan,
Masbate and filed a Complaint for the death of Aplacador with policeman Romy
Meliton (citation omitted). Appellant
was subsequently arrested by the police (citation omitted). An autopsy conducted on the remains of
Aplacador revealed that he sustained the following mortal wounds:

1. 12 cm. Hacking wound right auricular^[6]
area reaching the brain stem;

2. 12 cm. Hacking wound right zygomatic
area reaching the brain stem;

3. 10 cm. hacking wound right lower
mandible;

4. multiple hacking wounds neck through
and through.^[7]

Dr. Allen Ching, who conducted the post-mortem examination of
Aplacador’s remains, testified that the victim died of cardio-respiratory
arrest due to multiple stab wounds in the neck.^[8]

For his part, appellant admitted killing the victim, but claimed
that he only acted in self-defense. He testified that on February 26, 1994
at about 6:30 in the evening, he and his wife were in their house when
Aplacador arrived as if looking for trouble. When appellant asked what Aplacador wanted, he did not reply but gritted
his teeth. Appellant then told
Aplacador to go home so there would be no trouble. Appellant proposed that he would accompany Aplacador on his way
home. Appellant then got his bolo (minasbad), so he would use it to cut
coconut leaves, which he would burn as a torch to light his way back home. When the two were about 50 meters from
appellant’s house, Aplacador, who was walking ahead of appellant, faced the
latter and said, “I will stab you now.” Aplacador then tried to stab him with his knife, but appellant parried
the blow. Aplacador lunged again with
his knife at appellant but missed because the latter was able to move
backward. Thereafter, appellant hacked
Aplacador twice, but was not sure whether he hit him for by then it was already
dark. Appellant then went home and
slept with his wife. The following day,
he went to Burias Island. He also
declared that a month before the incident, Aplacador stabbed him on the knee,
thereby causing him to limp.^[9] He claimed, however, that he did not bear a
grudge against Aplacador. He likewise
denied hacking the victim for being a wife-beater. Appellant insisted that he killed Aplacador because the latter
tried to kill him.^[10]

The trial court found the prosecution’s version credible and convicted
appellant. Its judgment reads:

ACCORDINGLY, the court finds the accused Pedro Mondijar guilty
beyond reasonable doubt of the crime of MURDER and hereby imposes upon him the
penalty of DEATH and shall indemnify the legal heirs the amount of P50,000 for
the death of Pamfilo Aplacador, P30,000 for moral damages and P20,000 for
exemplary damages.

Considering the age of the accused (over 70 years), pursuant to
Sec. 25 of R.A. 7659, he is therefore entitled to a suspension of the execution
of his death sentence (in case the herein death sentence is affirmed by the
Honorable Supreme Court), thus, the death sentence shall be commuted to the
penalty of reclusion perpetua with all the accessory penalties under the
code.

With costs de officio.^[11]

Hence, this appeal assigning the following as errors:

I

THE LOWER COURT ERRED IN APPRECIATING THE
AGGRAVATING CIRCUMSTANCES OF TREACHERY, ABUSE OF SUPERIOR STRENGTH AND EVIDENT
PREMEDITATION AGAINST THE ACCUSED WHICH WERE NOT PROVEN BY THE PROSECUTION.

II

THE LOWER COURT ERRED IN FINDING THE
ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER AS DEFINED AND
PENALIZED UNDER ART. 248 OF THE REVISED PENAL CODE AS AMENDED BY RA 7659
INSTEAD OF PLAIN HOMICIDE.^[12]

Considering the aforecited errors, we find that the issues before
us pertain to: (1) the propriety of appellant’s conviction for the offense
charged; and (2) the presence of treachery, abuse of superior strength, and
evident premeditation as qualifying circumstances.

On the first issue,
appellant merely insists that prosecution witnesses did not prove his guilt
beyond reasonable doubt. However, he
does not cite any particulars for our consideration to support his contention.

For the appellee, the OSG counters that by claiming self-defense,
appellant admitted killing the victim. Hence, the burden of proof was shifted to appellant to show that the
killing was justified.

The OSG points out that appellant failed to establish unlawful
aggression on the part of the victim, one of the elements necessary for
self-defense to be sustained. Aplacador’s “gritting of his teeth” hardly constituted unlawful
aggression, says the OSG, adding that appellant’s act of continuously hacking
the victim after the latter fell down and was disarmed is unjustified because
the supposed aggression had already ceased. According to the OSG, appellant exceeded the limits of necessity to
suppress an alleged attack, and the number and location of the hacking wounds
sustained by the deceased belied appellant’s claim of self-defense.

The OSG’s contentions are well-taken. When an accused invokes self-defense, he effectively admits the
killing, and the onus probandi shifts
upon him to show clearly and convincingly that the killing is justified and
that no criminal liability is incurred.^[13] For self-defense to prosper, the accused
must satisfy the following requisites: (a) unlawful aggression by the victim,
(b) reasonable necessity of the means employed to prevent or repel it, and (c)
lack of sufficient provocation on the part of the accused.^[14] The
accused must rely upon his own evidence and not on the weakness of the
prosecution^[15]
in order to establish self-defense.

Assuming arguendo that
the victim, Aplacador, did try to stab appellant, we agree with the OSG that
appellant went beyond reasonable necessity in trying to prevent or repel the
assault. The victim was not only
disabled by multiple hack wounds; he was in fact decapitated. The nature and number of wounds inflicted
upon the victim show that appellant’s intentions went beyond trying to protect
his person but sought to deliver serious harm, thus rendering self-defense
unavailing in this case.^[16] Appellant’s
claim of self-defense is, in our view, dubious. A plea of self-defense cannot be appreciated where it is not only
uncorroborated by independent and competent evidence but is extremely doubtful
by itself.^[17]

On the second issue,
appellant first argues that the trial court erred in appreciating alevosia as attending the killing of
Aplacador. According to appellant,
treachery was not proven because the prosecution failed to show how the killing
commenced or how the act unfolded. For
treachery to exist, the mode of attack must be thought of by the offender, and
not spring from the unexpected turn of events. Further, appellant states that the prior stabbing incident between him
and the victim should have forewarned the latter of the possibility of an
impending attack. In other words,
appellant avers there was no sudden and unexpected attack on the victim.

For the appellee, the OSG contends that treachery was established
beyond reasonable doubt. According to
the OSG, when Aplacador pleaded with appellant not to kill him, and appellant
told him to go home and that appellant would accompany him in going home, the
victim was lulled into complacency. Hence, appellant’s attack was completely unanticipated by the
victim. That the victim was decapitated
shows the severity and suddenness of appellant’s blow, argues the OSG.

There is treachery when the offender commits any of the crimes
against the person, employing means, methods, or forms in the execution thereof
which tend directly and specially to ensure its execution, without risk to
himself arising from the defense which the offended party might make.^[18] For treachery to qualify the act of killing
to murder, two elements must concur: (1) the culprit employed means, methods, and forms of execution which
tended directly and specially to insure the offender’s safety from any
defensive or retaliatory act on the part of the offended party, which means
that no opportunity was given the latter to do so; and (2) that the offender
consciously adopted the particular means, method, or form of attack employed by
him.^[19]
The essence of treachery is a swift and unexpected attack on the unarmed victim
without the slightest provocation on the part of the victim.^[20] Treachery is never presumed but must
be proven with moral certainty like the offense itself.^[21]

In that light, we find the prosecution’s evidence insufficient to
sustain a finding that alevosia
qualified the killing to murder. The
prosecution’s sole eyewitness, Rogelio Booc, merely testified that appellant
hacked the victim. There is no showing
from his bare testimony as to how the hacking incident commenced. When the evidence does not establish how the
assault started, treachery cannot be appreciated.^[22]
Moreover, no evidence was adduced to show that appellant consciously adopted
the means he employed to ensure the victim’s death without risk unto
himself. That appellant offered to
accompany the victim home does not suffice to show that the offer was
deliberately adopted by appellant as means to deceive the victim, much less
lull him into lowering his defenses. Significantly, the relations between appellant and the victim were
marred by ill feelings. A month before
the incident, Aplacador had stabbed and wounded appellant. Clearly, appellant and the victim had no
love lost between them. They did not
trust each other. Recurrence of violent
quarrel between them was not out of the question. Otherwise put, the victim could not discount the possibility that
appellant might retaliate for the previous stabbing, or otherwise seek to cause
the victim bodily harm once an opportunity offered itself. Where an argument or quarrel preceded a
killing, treachery cannot be appreciated since the victim could be said to have
been forewarned and could anticipate aggression from the assailant.^[23]

Appellant next contends that it was error for the trial court to
find that abuse of superior strength characterized the killing, as it is highly
improbable for a man of more than 70 years to be superior in strength to a man
much younger. In addition, both the
victim and the appellant were armed with bolos, adds appellant, so they were
equally situated and there was no inequality of forces between them.

The OSG stresses, however, that appellant took advantage of
superior strength as his bolo was bigger than that of the victim. This advantage in weapons allowed appellant
to hack the victim with impunity. The
OSG further points out the fact that appellant was not wounded, even
superficially, despite his claim that the victim had tried to stab him,
validating an indicium of inequality
in their weapons and strength.

As previously held, there is abuse of superior strength if the
assailant purposely used excessive force out of proportion to the means of
defense available to the person attacked.^[24] In
the instant case it is not disputed that both appellant and the victim were
armed. That appellant’s bolo is much
longer than that of the victim would not show that appellant purposely used a
greater force to his advantage. At the
time of the incident, appellant was already seventy-nine (79) years old, while
the victim was much younger. A month
before the incident, appellant was stabbed on the knee, thereby causing him to
limp. This handicap would indicate in
terms of health, strength, agility, and superiority actually lies with the
victim. Hence, we agree with appellant
that there was no abuse of superior strength in this case.

Lastly, appellant argues that a close scrutiny of the
prosecution’s evidence clearly shows its failure to prove evident
premeditation. The prosecution,
according to appellant, failed to show that he had conceived a plan to kill his
son-in-law. Appellant insists that the
incident happened so fast there was no sufficient time for him to hatch a
deliberate plan of attack. Instead, he
merely relied upon and acted on the basis of man’s natural instinct of
self-preservation.

For the circumstance of evident premeditation to be appreciated,
the prosecution must present clear and positive evidence of the planning and
preparation undertaken by the offender prior to the commission of the crime.^[25] Settled is the rule that evident
premeditation, like any other circumstance that qualifies a killing to murder,
must be established beyond reasonable doubt as conclusively and indubitably as
the killing itself.^[26] To
consider evident premeditation, it is necessary that the following requisites
be met: (a) the time when the accused determined to commit the crime; (b) an
act manifestly indicating that the accused clung to his determination; and (c)
a lapse of time, between the determination to commit the crime and the
execution thereof, sufficient to allow him to reflect upon the consequences of
his act.^[27]
In the present case, no evidence was presented by the prosecution as to when
and how appellant planned and prepared for the killing of the victim. There is no showing of any notorious act
evidencing a determination to commit the crime which could prove appellant’s
criminal intent. Hence, we cannot agree
that there was evident premeditation here, on appellant’s part.

Further, the OSG submits that appellant’s act of nonchalantly
picking up the victim’s head, and throwing it about five arms’ length away, constitutes
scoffing at the body of the deceased. However, since this was not alleged in the information, this cannot be
appreciated as a qualifying circumstance. While appellant’s act is condemnable, it cannot be considered here to
qualify or aggravate the offense. For
the 2000 Revised Rules of Criminal Procedure requires that the qualifying and
aggravating circumstances must be specifically alleged in the information.^[28] Although said Rules took effect only on
December 1, 2000, well after the killing of Aplacador, it is a rule favorable
to the appellant. Thus, it should be
given retrospective application in his favor. Inasmuch as the circumstance of scoffing at the victim’s corpse was not
alleged in the information, it may not be considered to qualify or aggravate
the offense.

For failure of the prosecution to properly prove the qualifying
circumstances of treachery, abuse of superior strength, and evident
premeditation, we conclude that appellant could only be declared guilty of
homicide.

Coming now to the proper penalty to be imposed, Article 249 of
the Revised Penal Code^[29]
provides that the penalty for homicide is reclusion
temporal. The special mitigating
circumstance that the offender is more than 70 years old having been
established in this case,^[30] the penalty of reclusion temporal ought to be imposed in its minimum period.^[31] Applying the Indeterminate Sentence
Law, appellant could only be penalized with an indeterminate penalty ranging
from 6 years and 1 day of prision mayor,
as minimum, to 12 years and 1 day of reclusion
temporal, as maximum.^[32]

As to damages, the trial court properly imposed the amount of P50,000
as civil indemnity and P30,000 as moral damages for the pain, grief and
shock suffered by the heirs of Pamfilo Aplacador. However, since there is no aggravating circumstance present in
this case, the award of exemplary damages is not called for.^[33]

WHEREFORE, the
decision of the Regional Trial Court of Cataingan, Masbate, Branch 49, in
Criminal Case No. 812 finding appellant PEDRO MONDIJAR Y GALLARES, guilty
beyond reasonable doubt of the crime of murder is MODIFIED. Appellant is
declared guilty of HOMICIDE only,
and he is hereby sentenced to suffer
the indeterminate penalty of six (6) years and one (1) day of prision mayor as minimum to twelve (12)
years and one (1) day of reclusion
temporal as maximum. He is also
ordered to pay the heirs of the victim, Pamfilo Aplacador, the sum of P50,000.00
as civil indemnity and P30,000.00 as moral damages. Costs de
oficio.

SO ORDERED.

Bellosillo (Chairman), Mendoza, and Callejo, Sr., JJ., concur.

Austria-Martinez, J., on leave.

---

^[1]
Rollo, pp. 10-15.

^[2]
Also referred to as “Amplacador” or “Aplacado” in the records.

^[3]
ART. 47. In what cases the death penalty
shall not be imposed; Automatic Review of Death Penalty Cases. – The death
penalty shall be imposed in all cases in which it must be imposed under
existing laws, except when the guilty person is below eighteen (18) years of
age at the time of the commission of the crime or is more than seventy (70)
years of age or when upon appeal or automatic review of the case by the Supreme
Court, the required majority vote is not obtained for the imposition of the
death penalty, in which cases the penalty shall be reclusion perpetua.

In all cases where the death penalty is imposed by the trial
court, the records shall be forwarded to the Supreme Court for automatic review
and judgment by the court en banc,
within twenty (20) days but not earlier than fifteen (15) days after
promulgation of the judgment or notice of denial of any motion for new trial or
reconsideration. The transcript shall
also be forwarded within ten (10) days after the filing thereof by the
stenographic reporter.

^[4]
TSN, February 19, 1997, p. 6.

^[5] Records, p. 1.

^[6]
TSN, December 6, 1995, p. 3.

^[7]
Rollo, pp. 69-71.

^[8]
TSN, December 6, 1995, p. 7.

^[9]
TSN, July 22, 1998, pp. 2-5.

^[10]
Id. at 12-13.

^[11]
Rollo, pp. 14-15.

^[12]
Id. at 31.

^[13]
People vs. Ignacio, 270 SCRA 445, 450 (1997).

^[14]
People vs. Amion, 353 SCRA 410, 420 (2001).

^[15]
Del Rosario vs. People, 356 SCRA 627, 632 (2001).

^[16]
Id. at 634.

^[17]
People vs. Janairo, 311 SCRA
58, 74 (1999).

^[18]
People vs.
Rivera, G.R. No. 125895, July 4,
2002, p. 15.

^[19]
People vs.
Catian, G.R. No. 139693, January
24, 2002, p. 10.

^[20]
People vs. Garcia, 357 SCRA 151, 167 (2001).

^[21]
People vs. Domingo, 312 SCRA
487, 501 (1999).

^[22]
People vs.
Ayupan, G.R. No. 140550, February
13, 2002, p. 1.

^[23]
People vs. Buluran, 325 SCRA 476, 487 (2000).

^[24]
People vs. Ellasos, 358 SCRA 516, 533 (2001).

^[25] People vs. Flores, 356 SCRA 332, 346
(2001).

^[26]
People vs. Tabones, 304 SCRA
781, 793 (1999).

^[27]
People vs.
Umayam, G.R. No. 134572, April
18, 2002, p. 11, citing People vs. Platilla, 304 SCRA 339, 354 (1999).

^[28]
Rule 110. SEC. 8. Designation of the
offense. – The complaint or information shall state the designation of the
offense given by the statute, aver the acts or omissions constituting the
offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense,
reference shall be made to the section or subsection of the statute punishing
it.

SEC. 9. Cause of the
accusation. – The acts or omissions complained of as constituting the
offense and the qualifying and aggravating circumstances must be stated in
ordinary and concise language and not necessarily in the language used in the
statute but in terms sufficient to enable a person of common understanding to
know what offense is being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment.

^[29]
ART. 249. Homicide. – Any person who,
not falling within the provisions of Article 246, shall kill another without
the attendance of any of the circumstances enumerated in the next preceding
article, shall be deemed guilty of homicide and be punished by reclusion temporal.

^[30] REV. PENAL CODE. Art. 13. Mitigating circumstances. – The
following are mitigating circumstances:

xxx         xxx         xxx

2. That the offender is under eighteen years of age or over
seventy years. In the case of the minor, he shall be proceeded against in
accordance with the provisions of Article 80.

^[31] REV. PENAL CODE. Art. 64. Rules for the application of penalties which
contain three periods. – In cases in which the penalties prescribed by law
contain three periods, whether it be a single divisible penalty or composed of
three different penalties, each one of which forms a period in accordance with
the provisions of Articles 76 and 77, the courts shall observe for the
application of the penalty the following rules, according to whether there are
or are no mitigating or aggravating circumstances:

xxx       
 xxx       
 xxx

2. When only a mitigating circumstance is present in the
commission of the act, they shall impose the penalty in its minimum period.

^[32] See People vs.
Consejero, 352 SCRA 276, 293 (2001).

^[33]
People vs. Gutierrez, 339
SCRA 452, 463-464 (2000).