THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. VICENTE PACUDAN, ACCUSED-APPELLANT.

VICENTE PACUDAN was accused of murder in the defunct Court of First Instance of Cebu. The information against him reads:

“That on or about the 1st day of October, 1980, at about 3 o’clock p.m., in the City of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the said accused,
armed with a revolver, with deliberate intent, with intent to kill, with
treachery and evident premeditation did then and
there attack, assault and use personal violence upon one Ricardo B. Varon, by firing of several shots at him (deceased) on
different vital parts of his (deceased)
body, thereby inflicting upon him the following injuries:

‘GUNSHOT WOUNDS, MULTIPLE, HEAD & RIGHT UPPER EXTREMITY”,

as a consequence
of which said Ricardo B. Varon died
instantaneously.” (Expediente,
p. 1.)

The decision of the trial court states:

“Before arraignment, counsel for the accused moved that the
accused be allowed to plead guilty to the lesser offense of homicide. Since the prosecution vigorously
opposed the motion, the court denied the offer to plead guilty to homicide.

“Thus, when arraigned in accordance with law, the accused,
assisted by counsel of his choice,
entered the plea of not guilty to the information for murder.” (Expediente, pp. 74-75.)

After trial wherein the only witness for the defense was the accused,
the court rendered the following judgment:

“WHEREFORE, the Court finds the accused Vicente Pacudan guilty beyond reasonable doubt of the crime of
MURDER described in the aforequoted information. While
we consider abuse of superiority or the fact that means were employed by the
accused to weaken the defense, we take into account the relatively tender age
of the accused and, thus, we hold that the accused should be, as he is, hereby
sentenced to the penalty of reclusion perpetua, with
the accessory penalties of the law; to indemnify the heirs of the deceased
Ricardo Varon by way of compensatory and actual
damages in the sum of P12,000.00
and by way of moral and exemplary damages in the sum of P25,000.00, without
subsidiary imprisonment in case
of insolvency; and to pay the costs.” (Expediente, p. 82.)

The appellant admits having shot and killed Ricardo B. Varon who was a fellow security guard
assigned by the Sentinel Security Agency
to the Pacific Banking Corporation in Cebu City. He
claims, however, that it was done in self-defense.

The following narration
is taken from the appellants brief:

“At about three o’clock p.m., the appellant Vicente Pacudan, a security guard then on duty at the main door of
the Pacific Banking Corporation branch in Cebu, was called
by Ricardo Varon, another security guard, to the security office on the third floor of the building. After calling another guard to take his place, Pacudan went up to the office where Varon
was waiting for him. Varon immediately berated Pacudan for reporting him to the security officer, Daniel Kho, for his misdeeds, calling him a bootlicker, and saying
“I will kill you.” Varon then grabbed the
.38 caliber pistol in a holster at Pacudan’s waist. They
grappled for the gun which fell, and went off. Then Pacudan
butted Varon with his head as Varon tried to grab the gun, and once he had it in his hand, the gun was fired at least more than two
times.

“Pacudan then went down and
surrendered the gun to the security guard below, and this guard kept the gun in
the drawer. Pacudan then surrendered to the Philippine Constabulary
officer.” (Brief, p. 2.)

The question is whether under the facts supplied by the appellant
himself he acted in self-defense. We hold that he did not.

In People vs. Talaboc, Jr. L-25004, Oct. 31, 1969, 30 SCRA 87, this Court
held that in self-defense the
burden of proof rests upon the accused.
His duty is to establish self-defense
by clear and convincing evidence. Having admitted the killing of the deceased but failing to present sufficient evidence to establish self-defense, the accused must be
convicted.

In the case at bar, the
claim of self-defense is negated
by the following observations of the trial court:

“Significant in his answers to questions on cross-examination
is the allegation that, when Varon threatened to kill
him, he admittedly had no reason to
fear such a threat because Varon had no gun. It was
he who was armed instead with his service revolver.

“The gun of the accused was placed in his holster and it was
safely put in place by a strap with snap buttons.

“The holster was hooked to defendant’s belt and,
notwithstanding the force exerted by the protagonists,
neither the trousers nor the belt was destroyed. This casts grave doubt as to
the version of the accused, thus leading Us to
conclude that the shooting was deliberate and not perpetrated because of
self-defense.

“While the gun in its holster was tucked to the right waist of the accused and
the protagonists were facing each other, it was easy for the accused to prevent
the taking. Yet, his mind again
becoming blank at this point, the accused neither saw how the deceased relieved him of his gun
nor did he see the hand of the deceased that reached out to take it. He claims
that he did not point his gun at Varon because he did
not want to kill the latter; yet, when asked as to why he fired the gun at all,
he answered that it was a matter of life and death.

“The foregoing evidence considered, We
find the main issue to be, whether or not the accused shot the deceased Varon in self-defense. A threshold question would be
whether the deceased truly grabbed the service firearm of the accused and tried
to kill the accused.

“We find the allegation of the accused in this
regard to be fallacious because it is inconceivable. The deceased Varon was admittedly unarmed. The accused, on the other
hand, was fittingly possessed of his service firearm. It would be preposterous to assume that the
deceased Varon would threaten to kill the accused in
this situation and try to grab the service firearm of the accused, considering
that the accused’s gun was locked to its holster and,
while the protagonists were face to face, the accused could effectively prevent
the taking and easily get hold of the gun ahead of the deceased. It is a conclusion
conceived in logic and our experience of the affairs of mankind that an unarmed
person will not ordinarily try to kill another who is armed with a gun by
grabbing for the gun by the skin of his teeth, so to speak, so as to kill his
opponent with his opponent’s
gun. A person may not have the temerity to attack a man with a gun.“ (Expediente
pp. 79-80.)

The next relevant question is: what is the proper denomination
for the crime, murder or homicide only? The information alleges two qualifying
circumstances neither of which had been proved. There was no treachery because
the adversaries were face to face. There was no evident premeditation because there is no proof that the accused had planned the killing. And contrary to
the decision of the court a quo there was not even abuse of superiority
because it was a one on one, face
to face confrontation and no means were employed to weaken the defense. The crime committed was homicide not
murder.

The appellant admittedly surrendered voluntarily after the
killing. He is entitled to this mitigating circumstance which calls for the
application of the minimum period of the appropriate penalty.

WHEREFORE, the judgment of the court a quo
is modified in that the appellant is
held guilty of homicide only and sentenced to an 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, the rest of said judgment being affirmed in all other respects. Costs against the appellant.

SO ORDERED.

Makasiar, (Chairman), Aquino, Concepcion, Jr.,
Guerrero, and Escolin,
JJ., concur.

De Castro, J., on sick leave.