PEOPLE OF THE PHILIPPINES, PLAINTIFF/APPELLEE, VS. JOVEN BAUSING AND MANUEL LOROSO, ACCUSED/APPELLANTS.

This is an appeal from the decision* of the Regional
Trial Court of Dapa, Surigao
Del Norte, Branch XXXI, convicting appellants of the crime of murder, the decretal portion of which reads:

“WHEREFORE, viewed in the light of the foregoing, the Court
finds the accused JOVEN BAUSING and MANUEL LOROSO guilty beyond reasonable
doubt of the crime of MURDER qualified with treachery.  There being no aggravating circumstance and
mitigating circumstance, the
Court herreby sentences JOVEN BAUSING and MANUEL
LOROSO, to suffer the penalty of RECLUSION PERPETUA; to indemnify the heirs of
the late ALEXANDER MANTILLA, jointly and severally, the amount of Twelve
Thousand Pesos (P12,000.00); without subsidiary imprisonment in case of insolvency; with the accessory
penalties imposed by law and to pay the costs.” (Rollo,
p. 66)

The facts, as summarized by the trial court, are as follows:

“x x x
last August 3, 1978, approximately 9:15 o’clock in the evening, the victim,
Alexander Mantilla, as incumbent Barangay Councilman
and a Ronda Member of Barangay Consuelo, General Luna,
Surigao del Norte, while performing his official
duties, was at the billiard hall of accused Manuel Loroso,
together with the following persons, namely: 
Ruirino Crisologo,
Domingo Teraytay, Estanislao
Sunico, Aureliano Pacanor, Segundiano Pacanor, Edisimo Minglana, Barangay Captain Rufo Buñga, Pepito
Tokong, Juanito Tokong, Manuel Loroso, Joven Bausing and Valentin Bausing.

“There were two (2) billiard tables and on them the following
persons were playing:  Domingo Teraytay, Barangay Captain Rufo Buñga, Juanito
Tokong and Estanislao Sunico.

“The billiard game was first interrupted when Domingo Teraytay and Manuel Loroso were
grappling for the knife which was protruding at the back pocket of the former,
the knife was ultimately taken with the assistance of Estanislao
Sunico and Aureliano Pacanor.  Manuel Loroso, as owner of the billiard hall, confiscated the
knife in order to prevent any trouble therein.

“Thereafter, Valentin Bausing, sometimes called ‘Rodolfo’, clattered the billiard
balls which caused Alexander Mantilla to admonish him to stop his act as he was
not concerned with the game.

“Without any word, accused Manuel Loroso
who came from the back of Mantilla, held the hands of the latter while being
raised when all of a sudden, Joven Bausing appeared in the
scene, with unsheathed sharp pointed bolo (Exh. ‘A’)
which was hidden inside the umbrella (Exh. ‘B’)
thrust many times said bolo upon Mantilla. 
Mantilla was released only by Loroso, after
the victim was staggering unconsciously who
later fell dead outside the billiard hall.” (Rollo,
pp. 29-31)

Appellants Bausing and Loroso were then charged with murder with assault upon an
agent of person in authority.  Both
pleaded not guilty to the charge and after trial, the trial court rendered the
judgment which appellants now seek to be reversed.

During the trial, the prosecution established the guilt of
appellants through the testimonies of Crisologo, Tokong, Teraytay and Minglana, among others, who were all present at the
billiard hall when the incident happened.

Crisologo testified that in the
billiard hall, he saw Manuel Loroso and Dominog Teraytay grappling with
each other for possession of a knife. 
The others present in the hall tried to pacify the two and the knife was
taken by Estanislao Sunico.  He also testified that he saw Valentin
Bausing making trouble inside the billiard hall and was advised by the deceased Alexander
Mantilla to stop as he had nothing to do with the game.  At this point, Manuel Loroso
approached the deceased from behind and took hold of the latter’s hands,
whereupon Joven Bausing run
towards them repeatedly thrusting a sharp pointed bolo at the victim (Alexander
Mantilla) who kicked his assailant in a futile attempt to defend himself.  The victim was hit below his left breast and
right breast.  Weakened and already down,
appellant Joven Bausing
again stabbed the helpless victim on the mouth after which appellants Bausing and Loroso walked away (TSN, March 8, 1979, pp. 3-11;
Original Records, pp. 172-180).

The above testimony of Crisologo was
corroborated in all material points by the testimonies of (1) Pepito Tokong who was inside the
billiard hall because of rain (TSN, April 25, 1979, pp. 3-12; Original Records,
pp. 218-227); (2) Domingo Teraytay who was also
playing billiards (TSN, June 28, 1979, pp. 3-16; Original Records, pp.
250-263); and (3) Edisimo Minglana
who was also in the hall watching the billiard game (TSN, November 13, 1979,
pp. 4-17; Original Records, pp. 232-245).

All of the above witnesses gave exactly the same version of the
gruesome and merciless killing of Alexander Mantilla to the effect that the
deceased was only trying to stop Valentin Bausing from making trouble when Manuel Loroso
approached the deceased from behind, held both of the latter’s hands, while the
accused Joven Bausing,
father of Valentin, suddenly attacked Mantilla and
stabbed the latter several times.  As the
victim staggered towards the door, he fell flat on his face.  Not satisfied with the injuries already inflicted
by him, accused Bausing held the head of the fallen
victim and stabbed the latter on the armpit, hacked him at the left arm biceps,
forearm and mouth.

In this appeal, appellants raise the following errors:

“1. THAT THE
LOWER COURT ERRED IN HOLDING THAT APPELLANT MANUEL LOROSO HELD ALEXANDER
MANTILLA FROM THE BACK WHILE THE LATTER WAS BEING STABBED SEVERAL TIMES BY
APPELLANT JOVEN BAUSING, THAT APPELLANT MANUEL LOROZO AND JOVEN BAUSING
CONSPIRED IN KILLING ALEXANDER MANTILLA AND THAT APPELLANT MANUEL LOROZO’S
DEFENSE IS ALIBI, THUS, ERRED IN CONVICTING MANUEL LOROSO OF MURDER;

“2. THAT THE LOWER
COURT ERRED IN HOLDING THAT EDERESA TOKONG’S
TESTIMONY HAS BEEN UNREBUTTED AND THEREFORE FATAL TO THE DEFENSE;

“3. THAT THE
LOWER COURT ERRED IN NOT BELIEVING APPELLANT JOVEN BAUSING’S DEFENSE THAT HE
WAS ACTING IN DEFENSE OF HIS SON, RODULFO BAUSING, AND IN HOLDING THAT HIS
DEFENSE LACKS THE QUANTUM OF PROOF REQUIRED BY LAW;

“4.  THAT THE LOWER
COURT ERRED IN HOLDING THAT THE CRIME COMMUTED WAS
QUALIFIED WITH TREACHERY;

“5. ASSUMING
ARGUENDO THAT APPELLANT JOVEN BAUSING HAS TO BE CONVICTED, THE LOWER COURT
ERRED IN CONVICTING HIM OF MURDER AND NOT ONLY OF HOMICIDE AND IN NOT
APPRECIATING THE MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER IN HIS
FAVOR.” (Appellant’s Brief, pp. 1-2; Rollo, p.
85 c-d)

Appellants’ assignment of errors being interrelated, the same
shall be addressed jointly.

Joven Bausing
admitted the killing of the deceased but invokes the justifying circumstance of
defense of a relative in a bid to escape criminal
liability.  After a careful examination
of the verdict rendered by the trial court, We find no compelling
reason to reverse the judgment of conviction.

In order that the justifying circumstance of defense of a
relative may be properly invoked, the following requisites must concur:  (1) unlawful aggression; (2) reasonable
necessity of the means employed to prevent or repel it; and (3) in case the
provocation was given by the person attacked, that the one making the defense
had no part therein (Art. 11, par. 1 & 2, Revised Penal Code).

The first requisite is indispensable.  There can be no self-defense unless it is
proven that there had been unlawful aggression on the part of the person
injured or killed by the assailant.  If
there is no unlawful aggression, there is nothing to prevent or repel (People v. Malazzab,
160 SCRA 123 [1988]; Ortega v. Sandiganbayan
[1990]).  In addition, for unlawful
aggression to be appreciated, there must be an actual, sudden, unexpected
attack or imminent danger thereof, and not merely a threatening or intimidating
attitude (People v. Pasco, Jr., supra; People v. Rey,
172 SCRA 149 [1989] and the accused must present proof of positively strong act
of real aggression (Pacificar v. Court of Appeals 125
SCRA 716 [1983]; People v. Aquiatan, 123 SCRA 501
[1983]; People v. Aquino, 124 SCRA 835 [1983]).  Unlawful aggression must be such as to put in
real peril the life or personal safety of the person defending himself or of a
relative sought to be defended and not an imagined threat.

In the case at bar, appellant Bausing’s
claim of unlawful aggression committed by the deceased has not been
sufficiently established to warrant the appreciation of defense of a relative
as a justifying circumstance.  All four
prosecution witnesses who were eyewitnesses to the killing of Mantilla
testified categorically that no unlawful aggression was committed by the
deceased.  The victim merely admonished Valentin Bausing, son of
appellant Joven, to stop meddling with the game going
on.  Appellant’s claim of defense of his
son cannot prevail over the positive testimonies of the eyewitnesses pointing
beyond reasonable doubt that he (appellant) was the aggressor who treacherously
assaulted the deceased.

More importantly, appellant Bausing
already admitted the killing of Mantilla. 
Having made the admission, it is thus incumbent upon the accused to
prove the justifying circumstance to the satisfaction of the court in order to
be relieved of any criminal liability. 
In such instances, the accused must proffer strong, clear and convincing
evidence of self-defense and depend not on the infirmity of the prosecution,
for even if the latter was weak, the plea of self-defense cannot prosper
especially so where the accused himself has admitted the killing, as in the
case at bar (People v. Bayocot, 174 SCRA 285 [1989];
People v. Masangkay, 157 SCRA 320 [1988]; People v. Abagon, 161 SCRA 255 [1988]; People v. Tesorero,
71 SCRA 579 [1976]); People v. Llamera, 51 SCRA 48
[1973]; People v. Bauden, 77 Phil. 105 [1946]; People
v. Ansoyon, 75 Phil. 772 [1946]).

Appellant Loroso next contends that the
trial court erred in holding that Ederesa Tokong’s testimony has been unrebutted and therefore fatal to
the defense.  Lorozo
argues that he has in fact
testified as a sur-rebuttal witness and rebutted the testimony of Tokong point by point.

The argument is devoid of merit and need not be discussed at
length.  What the trial court meant when
it said that the testimony of Tokong was unrebutted is the fact that appellant Lorozo
failed to rebut the testimony of Tokong that after
the killing of Mantilla, said appellant slept in their (spouses Tokong’s) house with bloodstains on his shirt and pair of
trousers and that the blanket and beddings used by him were also stained by
blood.  The trial court’s pronouncement
did not mean that no sur­-rebuttal witness was ever presented by the defense.

The nature, character, location and number of the wounds suffered
by the deceased belie any supposition that the deceased was the unlawful
aggressor (People v. Marciales, 166 SCRA 436
[1988]).  As reflected in the autopsy
report and the testimony of Dr. Prospero Tayco, the
deceased suffered seventeen (17) incised wounds, including the “through
and through” incised wound of the heart, 21 inches long with entrance at the apex of the heart which is the primary
cause of death and massive blood loss secondary
thereto, aside from the numerous abrasions and avulsions (Autopsy Report, Exh. 15, Original Records). 
In contrast, both Valentin and Joven Bausing suffered no
injury.  The infliction the 17 wounds on
the deceased could only lead to the conclusion that Mantilla was the victim of
aggression and not the unlawful aggressor.

On the other hand, appellant Loroso
faults the trial court for classifying his denial of participation in the
killing of the deceased as one of alibi. 
Appellant claims that he was busy pumping air into his petromax lamp lighting the billiard hall at the time the
incident occurred and ran away as soon as he saw blood after the second thrust
by appellant Bausing. 
Appellant’s defense would therefore appear as a simple denial of his
participation in the commission of the offense.

Appellant’s unsubstantiated disclaimer of participation cannot be
given any credence.  Self-serving as it
is, his denial of participation in the commission of the crime cannot prevail
over the forthright and positive testimonies by the prosecution witnesses as
they uniformly pointed to him as having held both hands of Mantilla from behind
and raised them upwards while Joven Bausing suddenly appeared on one side of Mantilla,
unsheathed the bolo inside the umbrella he (Bausing)
was carrying and stabbed the victim continuously.  Loroso released his
hold of Mantilla only when the latter was already on the verge of death as a
result of the stab wounds inflicted by appellant Bausing.  The weak denials of appellant cannot prevail
over the clear and positive testimonies
of the eyewitnesses regarding his participation in the killing of the
deceased (People v. Bocatcat, Sr., 188 SCRA 175
[1990]; People v. Delavin, 148 SCRA 25 [1987]; People
v. Alcid, 135 SCRA 280 [1985]; People v. Tuscano, 137 SCRA 203 [1985]) for it is a settled rule that
greater weight is given to the positive identification of the accused by the
prosecution witnesses than to the accused’s plain
denial of participation in the commission of the crime (People v. de Mesa, 188
SCRA 48 [1990]; citing People v. Canada,144 SCRA 121 [1986]; People v. Mostoles, Jr., 124 SCRA 906 [1983]).

That the killing of Alexander Mantilla is murder qualified by
treachery is borne out by the records. 
The victim was not only unarmed but was also deprived of every means to
defend himself from the treacherous attack. 
Loroso held both hands of the deceased victim
while Joven Bausing suddenly
appeared and started stabbing the victim. 
In People v. Mahusay (138 SCRA 452 [1985]),
this Court ruled that there is treachery where the victim was held tightly by
one of the accused before his co-accused stabbed him, as in the case at bar.  The appellants executed the crime in a manner
that tended directly and specially to ensure its execution without risk to
themselves arising from the defense which the deceased might have made (Art.
14, par. 16, Revised Penal Code; People v. Pacabes,
137 SCRA 158 [1985]).

The presence of conspiracy was inferred from the concerted acts
of both the accused.  They both
approached the victim almost simultaneously. 
As one held the victim’s hands tightly from behind and raised them
upward, the other delivered the fatal stabs which caused Mantilla’s death.  The manner by which Loroso
held the victim’s hands from behind which clearly prevented the latter from
defending himself and without which act the crime would not have been
accomplished, makes appellant Loroso a conspirator
and a principal by indispensable cooperation (People v. Martinez, 127 SCRA 260
[1985]).  Where the accused by their acts
aimed at the same object, one performing one part and another performing
another part so as to complete
it, with a view to the attainment
of the same object, and their acts were concerted and cooperative, indicating
closeness of personal association, concerted action and concurrence of
sentiments, the lower court was justified in concluding that the defendants
were engaged in conspiracy wherein the act of one is the act of all (People v. Manlolo, 169 SCRA 394 [1989]).  Conspiracy can be inferred from and proven by
the acts of the accused themselves when said acts point to a joint purpose and
design, concerted action, and community of interests (People v. Monadi, 97 Phil. 575 [1955]).

The mitigating circumstance of voluntary surrender invoked by Joven Bausing deserves scant consideration.  While appellant Bausing
claims to have voluntarily surrendered to Pat. Arturo Esparrago
of Surigao del Norte Police Station on the night of
the incident, records of the case show that appellants were in fact arrested on
August 28, 1978 as per return made by Station Commander Saturnino
Plaza of General Luna, Surigao del Norter Police Force (Original Records, p. 7).  The mitigating circumstance of voluntary
surrender cannot be appreciated considering that the return of the warrant of
arrest showed that appellant was in fact arrested.

WHEREFORE, the appealed judgment is hereby AFFIRMED with
the modification as to the indemnification which is hereby increased to
P50,000.00.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr.,
Feliciano, and Davide,
Jr., JJ., concur.

*
Penned by Judge Melchor M. Libarnes