THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DANILO PUNZALAN, VGET ISON, AND GUILBERT CUISON, DEFENDANTS-APPELLANTS.

This is an automatic review of the decision dated September 7,
1979, rendered by Hon. Judge Onofre L. Villaluz, Criminal Circuit Court, Pasig,
Metro Manila in Criminal Case No. CCC-VII-2639-Rizal, convicting all three (3)
accused-appellants of the crime of murder as charged in the information and
imposing upon them the death penalty for the fatal shooting of Cpl. Maximo de
los Santos of the Paranaque police force in Paranaque, Metro Manila, on June
11, 1978. The dispositive portion of
the decision in the vernacular reads in full as follows:

“Sa dahilang napatunayan ng Hukuman na sina Danilo Punzalan,
Vget Ison at Guilbert Cuison ay nagkasala sa salang sinadyang pagpatay, ayon sa
Articulo 248 ng Binagong Kodigo Penal, sila ay pinapatawan ng parusang KAMATAYAN. Magbabayad sila ng danyos perwisyong P12,000.00
sa mga naulila ng nasawi at P5,000.00 bayad pinsalang moral at P5,000.00 bayad
pinsalang di dapat pamarisan at hati-hati sila sa gastos ng usapin.

IPINAGUUTOS.^[1]

The original information, dated July 19, 1978 and filed with the
trial court on July 27, 1978 charged only three (3) accused, namely, Ramon
Jumawan, Danilo Punzalan and Vget Ison, with murder qualified by treachery,
abuse of superior strength and cruelty. About four (4) months later, on November 21, 1978, the information was
amended to include Guilbert Cuison as a fourth accused as a result of a
preliminary investigation conducted by the Fiscal pursuant to the Order of the
trial court dated August 11, 1978 issued upon motion of the private prosecutor
on the strength of a supplementary sworn statement of one Arsenio Telmo dated
August 9, 1978 (Exh. l) claiming that Guilbert Cuison was one of those he saw
hitting the late Cpl. Maximo de los Santos with a chair.

Upon arraignment, the three (3) accused, Danilo Punzalan, Vget
Ison and Guilbert Cuison pleaded not guilty to the charge and thereafter
entered into trial. The other accused,
Ramon Jumawan, was never arrested and remained at large. After trial, the lower court returned a
verdict of guilty and sentenced the three (3) accused to death as earlier
stated.

As set forth in the People’s brief, the facts attendant to the
commission of the crime charged are as follows:

“In the early evening of June 11, 1978, Cpl. Maximo delos
Santos of the Paranaque Police Department, was inside the Nordel Restaurant in
Sucat Road, Paranaque, Metro Manila. While he was there, a group of men composed of Ramon Jumawan, who
remains at large, Danilo Punzalan, Vget Ison, Guilbert Cuison, Reynaldo Dandan,
Angelito Bernardo, Cesar Llamas, Wally or Walfrido Punzalan, Benjamin Arciaga
and Leon Allanigue occupied a round table at the restaurant drinking beer. Sometime later, Cpl. delos Santos approached
the group saying: ‘Mga padres, pulis
ako, ibig ko lang alamin sa inyo
kung sino ang may baril.’ Whereupon, Wally Punzalan who was seated across the
table, pulled out a .45 cal. pistol which his brother, Danilo, had earlier
slipped to him under the table. Cpl.
delos Santos drew his service revolver and fired twice at Wally Punzalan before
the latter could fire at him. Accused
Ramon Jumawan then hit the policeman on the head with a chair. The policeman fell to the floor, face down. Appellants Danilo Punzalan and Guilbert
Cuison followed suit hitting Cpl. delos Santos repeatedly with chairs on the
head, back and arms. Appellant Vget
Ison joined in and hit their victim with a beer bottle (Tsn, Jan. 10, 1979, pp.
6-20; Tsn, July 19, 1979, pp. 14-16; Exhs. E, F). The attack was so violent that the chairs and beer bottles which
appellants used in hitting the policeman were broken. The broken chairs and fragments of broken glass were strewn on
the floor (Tsn, Dec. 7, 1978, pp. 67-76; Exhs. C to C–16).

As the policeman lay prostrate and helpless on the floor, Ramon
Jumawan grabbed the victim’s service revolver and shot the latter four (4)
times. All shots found their mark (Tsn,
Jan. 10, 1979, pp. 16-17; Tsn, Dec. 7, 1978, pp. 28-33; Exh. A).

After the group saw that Cpl. Santos was already dead the group
left together (Tsn, Jan. 10, 1979, p. 19). They helped each other in bringing the wounded Wally Punzalan to the
hospital where he expired five days later (Tsn, July 17, 1979, pp. 75-78,
151-152). The jacket of Danilo Punzalan
was left on the floor (Tsn, Dec. 7, 1978, pp. 80-81; Exh. C-4.”^[2]

Three separate briefs by different lawyers were filed for the
appellants: the first for all the
appellants; the second for appellants Vget Ison and Guilbert Cuison; and the
third, for appellant Vget Ison only. The defense advanced the following version of the incident:

“The undisputed facts are that at about 9:30 P.M. June 11,
1978, a group of ten (10) male persons was* at the
Nordel Restaurant, Dr. Santos Street, Sucat, Paranaque, Metro Manila, for food
and beer. The group included the four
accused, Danilo Punzalan, Ramon Jumawan, Vget Ison, aand Guilbert Cuison. Wally Punzalan, brother of Danilo Punzalan
was also there. The owner of the
restaurant, Adelaida Borinaga, was also present as was one Elizabeth Mendoza,
waitress, who waited on the group. The
ten persons seated themselves about a round table at the center of the eating
place as they partook of the food and drinks.

Cpl. Maximo de los Santos, a traffic policeman of Paranaque, was
also in the restaurant, in civilian clothes, drinking beer, seated at the
counter some five meters away from the table of the group. He ordered a bottle of beer from Adelaida
Borinaga.

All went well until Cpl. de los Santos suddenly left his place at
the counter, went to the table occupied by the accused-appellants and their
companions, and with his .38 caliber pistol, shot Wally Punzalan twice at close
range felling the latter. In the
ensuing rapid succession of action Ramon Jumawan hit Cpl. de los Santos on the
head with a chair and gained
possession of the policeman’s gun and used it in shooting the policeman in turn
three or four times.

The policeman sustained four gunshot wounds three of which caused
his death. The fourth one was a mere
grazing wound. He also had a lacerated
wound on the head and other wounds and some contusions and abrasions. He died on the spot where he fell. The necropsy report (Exhibit A) gave the
cause of death as severe hemorrhage secondary to gunshot wounds. He was brought to the Olivares General
Hospital nearby where he expired six days later, on June 17, 1978, from
peritonitis, generalized, secondary to gunshot wounds according to the necropsy
report (Exhibit 6).”^[3]

It appears from the foregoing narration that contrary to the
trial court’s findings that the gunplay was started by one of the members of
the group. (“isa sa mga nakaupo
ang nagbunot ng .45 cal. at binaril ang pulis x x x) what actually transpired
was that it was the policeman (victim) who first shot Wally Punzalan.

With that backdrop, We shall now discuss the various assignments
of errors raised by the defense which are summarized as follows:

1.  The trial court erred in finding the existence
of treachery and conspiracy among the accused;

2.  The trial court erred in not crediting the
defendants with the justifying circumstance of self-defense or defense of
relative;

3.  The trial court erred in giving credence to
the testimony of the prosecution witness, Arsenio Telmo;

4.  The trial court erred in failing to acquit all
the defendants for failure of the prosecution to establish their guilt beyond
reasonable doubt.

Anent the first assigned error, appellants maintain that the
trial court erred in finding the existence of conspiracy and treachery among
them.

As provided in paragraph 2, Article 8 of the Revised Penal Code,
conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. Since in conspiracy, the act of one becomes the act of all, all
persons taking part in the crime are held guilty as principals. Because
of its far-reaching consequences, the same degree of proof required for
establishing the crime is required to support a finding of the presence of
conspiracy. Thus, it must be shown to
exist as clearly and convincingly as the commission of the offense itself,^[4]
in order to uphold the fundamental principle that no one shall be found guilty
of a crime except upon proof beyond reasonable doubt.^[5]

While it may be true that direct proof is not essential to prove
conspiracy,^[6]
and it may be shown by acts and circumstances from which may logically be
inferred the existence of a common design among the accused to commit the
offense charged, nonetheless, the evidence to prove the same must be positive
and convincing.^[7]

A close scrutiny of
the records in the present case shows that there is not a shred of evidence to establish the existence of conspiracy
between appellants. From the evidence
presented by the prosecution it is clear that the incident at the Nordel
Restaurant on June 11, 1978 was unplanned and spontaneous.

First, admittedly, appellants were together drinking and eating
in the company of other persons before the incident happened. This circumstance alone does not suffice to
prove the existence of a common criminal design. Mere suspicion, speculation, relationship or association and
companionship do not establish conspiracy, for proof thereof must be positive
and convincing.^[8]
In the instant case, it is neither alleged nor shown that appellants’ meeting
at the Nordel Restaurant at that particular time was planned. Nor is there evidence that any of the
appellants knew that the victim was going to be in that particular place or
that such meeting was purposely sought for by them. No doubt the encounter was purely accidental. In fact, had the victim not approached the
appellants, no untoward incident could have happened.

Second, it appears that it was the deceased Maximo de los Santos
who approached the table of appellants and was the first to fire the two shots
at Wally Punzalan, when he attempted to draw his gun. The fact that the attack was commenced by Maximo de los Santos
negates the theory that appellants conspired to kill him. It was only after Wally Punzalan was gunned down that appellants
reacted and ganged up on the victim. Ramon Jumawan hit the victim at the back so his gun fell. Jumawan then picked up the gun which he used
in killing the victim.^[9]

The fact that the appellants struck and hit the victim with the
chairs and beer bottles did not make them conspirators thereby. The evidence shows that appellants acted on
impulse, without prior deliberation, planning or design. The appellants must have felt threatened by
the deceased who killed their companion. Hence their spontaneous response to the real and determined acts of the
victim must have been motivated by a desire
to repel the aggression if not to prevent any further harm the victim may
inflict on any of them.

The simultaneous attack of appellants cannot be considered as amounting to a conspiracy to kill the
deceased. Neither joint and
simultaneous action nor relationship is per se a sufficient indicium
of conspiracy.^[10]
A common design must further be shown to have motivated such action.^[11]
Indeed, it is the gunshot wounds that led to the death of the victim. The injuries inflicted by appellants were
superficial to serious but not fatal.^[12] In
the absence of clear proof that the killing was in fact envisaged by them, they
cannot be held responsible for the death of the victim.

With respect to treachery, the attendance of this aggravating
circumstance is found in the concurrence of two conditions: (1) the employment of means, method or
manner of execution which would insure the offender’s safety from any defensive
or retaliatory act on the part of the offended party, which means that no
opportunity is given to the latter to do so,^[13] and
(2) that such means, method or manner of execution was deliberately or
consciously chosen.^[14]
Thus, it is not enough that the means, method or form of execution tends
directly and specially to facilitate the commission of the offense without
danger to the offender arising from the defense or retaliation that might be
made by the offended party. It is
further required, for treachery to be appreciated, that such means, method or
form was deliberated upon or consciously adopted by the offender.^[15]

The first of the two conditions aforestated appears to be present
in the instant case. It has been
adequately established that appellants delivered blows to the victim when the
latter was down on the floor after being struck by Ramon Jumawan – which fact
insured their safety from any defensive or retaliatory act from the
victim. However, the second condition
is wanting.

From the rapid succession of events, it appears that the means
employed were not deliberated upon by appellants. The act of the appellants in assaulting the victim appears to be
impelled by the instinct of self-preservation if not retaliation for the
shooting of their comrade. Such
deliberate or conscious choice of the means was held non-existent where, as in
this case, the attack was the product of an impulse of the moment,^[16]
and where the defendants did not make any preparation to assault the victim.^[17]
The decision to attack the victim was accidental.^[18]
The attack arose from a chance encounter and quarrel.^[19]
Treachery therefore is not present in this case.

Anent the second assigned error, appellants maintain that the
trial court erred in not crediting the appellants with the justifying
circumstance of self-defense or defense of relative.

Self-defense^[20] and
defense of the rights of another^[21] are
recognized circumstances justifying an offense and exempting the perpetrator
from criminal liability.

It appears that all the elements of self-defense and defense of a
stranger are present under the facts and circumstances of the case at bar.

It was shown that the policeman was the aggressor. The assault was sudden and totally
unexpected so that he succeeded in pumping two bullets unto the chest and
stomach of his unsuspecting victim Wally Punzalan, giving the latter no chance
or time to defend himself or evade the aggression.

After gunning down Wally Punzalan, the policeman’s aggression did
not stop there. While the policeman
stood there menacingly with his gun, the peril to the life of Wally Punzalan
and all his companions continued. Faced
with this real and imminent danger to their own life, and in obedience to the
dictates of the instinct of self preservation, appellants together with Ramon
Jumawan, mauled the policeman to immobilize him. And when the latter was disarmed, Jumawan picked the gun and shot
him four times. Although this Court
cannot in all reason condone the shooting of a person who is already helpless
and lying prostrate on the floor, so that Jumawan who is at large must be held
to account for his acts, as to the
appellants, this Court is mindful of the following discourse it made on the
subject, thus:

“The law does not require, and it would be too much to ask of
the ordinary man, that when he is defending himself from a deadly assault, in
the heat of an encounter at close quarters, he should so mete out his blows
that upon a calm and deliberate review of the incident, it will not appear that
he exceeded the precise limits of what was absolutely necessary to put his
antagonist hors de combat; or that he struck one blow more than was
absolutely necessary to save his own life; or that he failed to hold his hand
so as to avoid inflicting a fatal wound where a less severe stroke might have
served his purpose. Of course, the
victim of an unlawful aggression may not lawfully exceed the bounds of rational
necessity in repelling the assault. But
the measure of rational necessity in cases of this kind is to be found in the
situation as it appears to the victim of the assault at the time when the blow
is struck; and the courts should not and will not, in the light of after events
or fuller knowledge, hold the victims of such deadly assaults at close
quarters, to so strict a degree of accountability that they will hesitate to
put forth their utmost effort in their own defense when that seems to them to
be reasonably necessary.”^[22]

“The reasonableness of the means employed to prevent an
aggression depends upon the nature and quality of the weapon used by the
aggressor, his physical condition, his size, his character and the sorrounding
circumstances vis-a-vis those of the person defending himself. It is also well-settled that in emergencies
which imperil the life and limb of a person, human nature acts not upon
processes of formal reason but in obedience to the imperious dictates of the
instinct of self-preservation. xxx the
protective mantle of the law shields not only him who repels actual aggression
but as well as him who prevents an aggression that is real and imminent. And the killing of the aggressor would be
justified at a time when all the elements of self-defense are present.”^[23]

“In emergencies of this kind, human nature does not act upon
processes of formal reason but in obedience to the instinct of
self-preservation, and when it is apparent that a person has reasonably acted
upon this instinct, it is the duty of the courts to sanction the act and to
hold the actor irresponsible in law for the consequences.”^[24]

Except for the shooting of the victim by Jumawan, We find that
the appellants employed reasonable means to repel the aggression of the
policeman.

The final requisite for complete self-defense, lack of sufficient
provocation of the person depending himself, is also present. The evidence shows that Wally Punzalan and
his companions had not done anything
to invite the ire of the policeman and provoke the latter’s aggression. It also appears that the companions of the
slain Wally Punzalan were not motivated by revenge, resentment or other evil
motive in defending themselves and Wally Punzalan.

The appellants having acted in self-defense and/or in defense of
their companion, acted justifiably and are hereby exempt from criminal
liability.

As to the third assigned error, the testimony of prosecution witness
Arsenio Telmo is sought to be discredited
because he gave his statement implicating appellants to the police only four
(4) days after the incident.

The initial reluctance of witnesses in this country to volunteer
information about a criminal case and their unwillingness to be involved in or
dragged into a criminal investigation is common and has been judicially
declared not to affect credibility.^[25]
Telmo, a witness to the incident, was actually asked to go to the police
headquarters on the night of June 11, 1978 but he refrained because he was
scared. However, he readily gave his
name, address and residence certificate to the police. There is
nothing in the record that would prove he had an ax to grind against
appellants. He is therefore a
disinterested witness. Also, his
presence at the night of the incident was confirmed by the restaurant owner.^[26]

The fact that it was only on August 9, 1978 that Telmo executed a supplemental affidavit implicating
Guilbert Cuison for the first time is explained by the fact that it was only on that date that he was made
to confront Cuison when the latter gave himself up to the authorities at Camp
Crame. On that occasion, Telmo readily
identified Cuison as one of
those who hit the victim.^[27]

Anent the last assigned
error, from our view of the evidence, the participation of herein appellants in
mauling the policeman cannot be denied. However, as earlier discussed, their acts were justified.

From the evidence on record, this Court is convinced that herein
appellants did not intend to kill the victim; that the circumstances where they
found themselves provoked the action they took; their friend dead, shot by
another who happened to be a policeman, who at that time was in plain clothes
but was holding a gun. It is easy to
imagine and feel the intense passion, fear and apprehension in everyone’s heart
at a time like that. In appellants’
eyes, he was a common enemy, killer of their friend and a possible threat to
their lives. Accused appellants cannot
therefore be faulted since self-preservation is still the first law of nature.

Considering the above disquisitions, this Court is of the opinion
that appellants should be acquitted of the charges against them.

WHEREFORE, the judgment of conviction is hereby set aside
and appellants are acquitted of the crime charged with costs de oficio. Their immediate
release from custody is ordered, unless they are otherwise detained for some
other legal cause. However, the
authorities must exert all efforts for the apprehension and prosecution of
Ramon Jumawan for this killing.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera,
Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Sarmiento, and Cortes, JJ., concur.

^[1]
Page 4, Decision, p. 18, Rollo.

^[2]
Pp. 2-3, Appellee’s brief, p. 65, Rollo.

* should read
“were”

^[3]
Pages 5-7, Appellants, p. 76, Rollo.

^[4]
People vs. Purtugueza, 20 SCRA 901; People vs. Tumalip, 60 SCRA
303, 317-318; People vs. Custodio, 47 SCRA 289, 302; People vs.
Llamera, et al., 51 SCRA 48, 60; People vs. Geronimo, 53 SCRA 246, 254;
People vs. Tumalip, et al., 60 SCRA 303, 317; People vs.
Macatanaw, 62 SCRA 516, 527; People vs. Vistido, et al., 79 SCRA 616,
620.

^[5]
People vs. Tividad, 20 SCRA 549

^[6]
People vs. Cabiling and Lopez, 74 SCRA 285, 299; People vs.
Roncal and Gabrieles, 79 SCRA 509, 516.

^[7]
People vs. Peralta, 25 SCRA 759; People vs. Sosing, 111 SCRA 377.

^[8]
People vs. Sosing, 111
SCRA 368, 377.

^[9]
T.S.N., pp. 6-7, January 10, 1979.

^[10]
People vs. Caballero, 53 Phil. 585; People vs. Bartolay, 42 SCRA
1.

^[11]
People vs. Tividad, 20 SCRA 549.

^[12]
Exhibit 6.

^[13]
People vs. Ramos, 20 SCRA 1109.

^[14]
People vs. Clemente, 21 SCRA 261.

^[15]
People vs. Dadis, 18 SCRA 699.

^[16]
People vs. Macalisang, 22 SCRA 699.

^[17]
People vs. Delgado, L-24884, Aug. 31, 1968.

^[18]
People vs. Macalisang, supra.

^[19]
People vs. Clemente, 21 SCRA 261.

^[20]
Article 11, No. 1, Revised Penal Code.

^[21]
Article 11, No. 3, Revised Penal Code.

^[22]
U.S. vs. Singson, 41 Phil. 53, 56.

^[23]
People vs. Zambarrano, 54 O.G. 8455.

^[24]
People vs. Lara, 48 Phil. 153.

^[25]
People vs. Kipte, 42 SCRA 199.

^[26]
T.S.N., December 7, 1978; Exhibit “A”.

^[27]
T.S.N., pp. 31-36, July 17, 1979.