PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FLORENTINO EDUARTE @ TINONG, FREDESWINDO EDUARTE @ INDOY – ACQUITTED, AND JULIE EDUARTE, – AT LARGE. FLORENTINO EDUARTE @ TINO…

In this appeal from the decision of the Regional Trial Court of Abra, Branch II in Criminal Case No. 250 the
accused-appellant prays for a judgment
of acquittal in lieu of the
verdict of conviction rendered by the trial court on October 31, 1985 with the following dispositive portion:

“IN VIEW OF THE FOREGOING, the Court finds and holds Florentino Eduarte guilty of the
crime of Murder, qualified by treachery as charged in the information, and is
hereby sentenced to suffer the penalty of reclusion perpetua, and to indemnify the heirs of the victim the sum of P30,000.00 and to
pay the costs of the proceedings. Fredeswindo Eduarte is ACQUITTED, for lack of sufficient evidence.” (Rollo, pp. 25­-26)

In resolving the issue of whether or not the defense of relatives
under Article II, subparagraph (2) of the Revised Penal Code can be invoked by
the accused-appellant in his favor, we are confronted with two conflicting
versions of the facts.

The evidence for the prosecution establishes the following facts:

“Florentino Eduarte,
Fredeswindo Eduarte and
Julie Eduarte are brothers and residents of Dolores, Abra.  Fredeswindo Eduarte married the
sister of Roberto Trinidad.  On the night
of December 4, 1984, Fredeswindo Eduarte, Roberto Trinidad
and Sonny Testado were in the house of Roberto
Trinidad at Dolores, Abra drinking liquor.  Fredeswindo lost
control of himself and suspecting that his wife had an illicit relation with
another man, he quarrelled with his wife.  He became violent and made loud outburst to
the extent of getting a scissor inside the house.  Seeing the intention of Fredeswindo
Eduarte, Roberto Trinidad pacified him.  Instead
of being appeased, Fredeswindo Eduarte
thrusted (sic) the scissor he was holding to his brother-in-law
Roberto Trinidad.  Vicente Trinidad and
his brothers went to the rescue of their brother Roberto Trinidad and wrestled
the scissor from Fredeswindo Eduarte.  Thereafter, Roberto Trinidad drove his jeep
and together with Sonny Testado, went to the Municipal
Building of Dolores, Abra to seek the help of
policemen.  On their way back and while
approaching their house, Roberto Trinidad and Sonny Testado
saw Fredeswindo Eduarte
lying flat on the road through the head lights of the jeep.  Roberto Trinidad stopped his jeep.  Without putting off the light of the jeep, he
alighted to help Fredeswindo Eduarte.  When Roberto Trinidad was in the act of
extending assistance and asking what happened to Fredeswindo
Eduarte, Florentino Eduarte, who was beside the road, shot him, which caused
his death.  Not long after, police
authorities arrived at the place and looked for Florentino
Eduarte but failed to locate him.” (Brief for
the Plaintiff-Appellee, pp. 4-5)

On the other hand, the defense, in its counter­-statement of facts, relates as follows:

“On the early night of December
4, 1984, accused-appellant Florentino Eduarte, together with Larry Bañaga
and Belleng Alfaro, were working in the house of his
uncle Maximino Bañaga
(T.S.N. p. 3 Oct., 1985).  Just about
that time, his brother Julie Eduarte arrived and
informed him that they are killing his older brother (Fredeswindo
Eduarte) (T.S.N. p.4, Oct. 1, 1985; T.S. N. p. 51,
Sept. 2, 1985).  Surprised upon hearing
the news (T.S.N. p. 8, Oct. 1, 1985), Florentino Eduarte rushed from his place of work, proceeded to their
house, got a gun from the trunk owned by his late father and went directly to
the scene unmindful whether the gun was loaded or not (T.S.N. p. 7, Oct. 1,
1985).  When he arrived at the place of
incident, he saw Roberto Trinidad (victim) clubbing his brother who was lying,
face downward and his shirt soaked with blood (T.S.N. p. 5, Oct. 1, 1985).

Earlier that day at about 4:30 p.m.
Fredeswindo Eduarte who is
living with his in­-laws, had a drinking spree in his in-law’s house with the
brother of his wife Rita namely Roberto Trinidad (the victim), a cousin Jimmy Trinidad,
and an uncle of the deceased, Sonny Testado (T.S.N.
p. 17, August 20, 1986).

While they were drinking, Fredeswindo Eduarte confronted his wife about her illicit relationship
with another man and irked by the accusation, his brother-in-law, Roberto
Trinidad (victim), butted in and
berated him as merely affiliated with the deceased family (T.S.N. p. 17, Aug.
20, 1986).  An exchange of words ensued
leading to an altercation
involving Roberto and his brother Vicente Trinidad.  Fredeswindo Eduarte defended himself by grasping a scissor from his
back and thrusting it against his assailant. 
This incident was witnessed by the victim’s wife, Delia F. Trinidad, who
sought the help of the other brothers of the deceased (T.S.N. p. 25, July 25,
1985) namely Roque and Bienvenido
Trinidad.

At this juncture, Julie
Eduarte, a brother of Fredeswindo
Eduarte saw the four Trinidad
brothers namely, Roberto (victim), Vicente, Bienvenido
& Roque, ganging up on his brother.  He approached and stoned the house as a
consequence of which he was chased by the two Trinidad Brothers. (T.S.N. pp. 41-­42, Aug. 19, 1985).

Julie Eduarte immediately proceeded to
the house of his uncle Maximino Bañaga
where his brother Accused-Appellant Florentino Eduarte is (sic) working to secure assistance.” (Rollo, pp. 118-120)

At the arraignment, the accused-appellant and Fredeswindo
Eduarte whose name has been repeatedly misspelled in
the records pleaded not guilty to the crime of murder as charged in the
information which reads:

“That on or about December 4, 1984, at about 8:00 o’clock at
night, at Curapo, in the municipality of Dolores,
Province of Abra, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, confederating
and mutually helping one another, with intent to kill, with treachery and
evident premeditation, and while armed with a long firearm and a bolo (unrecovered), did then and there wilfully,
unlawfully and feloniously assault, attack and shoot one Roberto Trinidad,
hitting him on the left chest and on other parts of his body, which multiple
gunshot wounds caused his death shortly thereafter.” (Rollo,
p. 21)

Co-accused Julie Eduarte has remained at
large up to the present.

After trial, the lower court adjudged the accused-appellant
guilty beyond reasonable doubt of the crime of murder while his brother Fredeswindo was acquitted for lack of sufficient evidence.

The accused-appellant maintains that he is innocent of the crime
as charged invoking the justifying circumstance of defense of relatives.  Instead of making an assignment of errors,
the accused-appellant states that the trial court was confronted with two
conflicting versions, one asserting that Roberto Trinidad was shot while
assisting Fredeswindo Eduarte
and the other stating that Roberto was shot while clubbing Fredeswindo.  In both cases, the appellant states that
defense of relative should be appreciated.

Article II, subparagraph 2 of the Revised Penal Code provides
that:

“2.  Anyone who
acts in defense of the person or
rights of his spouse, ascendants, descendants, or legitimate,
natural or adopted brothers or sisters, or of his
relatives by affinity in the same degrees and those by consanguinity within the
fourth civil degree, provided that the first and
second requisites prescribed in the next
preceding circumstances are present, and the
further requisite, in case the provocation
was given by the person attacked, that
the one making defense had no part
therein. (Underlining supplied)

The first and second requisites are unlawful aggression and
reasonable necessity of the means employed to prevent or repel the unlawful
aggression.  Hence, it was incumbent upon
the accused-appellant to prove the existence of the three essential requisites
of the justifying circumstance of defense of relatives namely:  (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.

The accused-appellant claims that there was unlawful aggression
on the part of Roberto Trinidad considering that the scenario he saw after he
was summoned from his place of work by his other brother Julie was that of his
allegedly assaulted brother Fredeswindo sprawled on
the ground and bathed in his own blood with Roberto Trinidad clubbing Fredeswindo.  It was
when Roberto was about to deliver the final blow to Fredeswindo
that the accused-appellant claimed he shot Roberto in defense of his
brother.  Thus, according to the
accused-appellant, the second requisite is also present considering that the
use of a gun at that pressing moment was reasonable and necessary to prevent or
repel the aforestated unlawful aggression.  As regards the third requisite, the
accused-appellant contends that there is no debate as to its presence since the
accused-appellant was clearly not a part of the melee in question.

We find no merit in
the claim that the shooting of Roberto was done in defense of a relative.  For this justifying circumstance to prosper,
the evidence adduced must be persuasive. 
Although it is true that the accused-appellant took no part in the
provocation that led to the killing incident, his testimony that there was
unlawful aggression on the part of Roberto was self-serving and
uncorroborated.  The trial court
discredited the accused-appellant’s version and made the following
observations:

“The following circumstances render the pretension or claim of
Florentino Eduarte
unreliable and unworthy of belief:

First, the position of the jeep in relation to Fredeswindo Eduarte.  It is unrebutted
that the jeep was driven by Roberto Trinidad and stopped near Fredeswindo Eduarte who was lying on the road.  If Roberto Trinidad had any ill
feelings towards his brother-in-law, Fredeswindo Eduarte, he would not have stopped his jeep and
alighted.  It was not so hard for him to
accelerate the speed of his jeep, and run over the body of Fredeswindo
Eduarte who was lying flat on the road, rather than alighting (sic) from his
jeep and club him.

Second, the headlights of the jeep remained lighted.  If Roberto Trinidad had an intention to club or
to harm his inebriated and helpless brother-in-law lying on the road, he should
have put off the light of his jeep before alighting.  His having alighted from
his jeep without putting off the light shows his intention of extending
assistance to his brother-in-law Fredeswindo Eduarte.

Third, failure of Florentino
Eduarte to present himself to the authorities.  It is clear that immediately after having
shot Roberto Trinidad, Florentino Eduarte
ran away and never presented himself to the authorities.  If true that he shot Roberto Trinidad while
in the act of clubbing his brother Fredeswindo Eduarte, why did he not present himself to the authorities
and relate what happened?  The natural
instinct of any person who killed someone in defense of his person or relative
is to present himself to the authorities and relate
what happened to him and what he did.

Fourth, the immediate flee (sic) of Florentino
Eduarte and Larry Bañaga
without verifying the actual physical condition of Fredeswindo
Eduarte.  Larry
Bañaga and Florentino Eduarte testified that they proceeded to the place of the
incident to see Fredeswindo Eduarte,
that when they arrived, they saw Fredeswindo Eduarte lying on the road. 
If it were true that they saw Roberto Trinidad club Fredeswindo
Eduarte and was in the act of clubbing when Florentino Eduarte shot him, why
did they immediately run away without extending any assistance to Fredeswindo Eduarte, or verifying
his actual condition?  This action of Florentino Eduarte and Larry Bañaga is strange and demerits human experience. 
It is indicative of a guilty conscience.” (At pp. 24-25, Rollo)

In the absence of any grave abuse of discretion on the part of
the trial judge who had the privilege of examining the demeanor of the
witnesses and who thus, ably ascertained the credibility of said witnesses
during the trial proceedings, we find no cogent reason to depart from the
well-entrenched principle that findings of fact of the trial court as to the
credibility of witnesses are entitled to our highest respect.  (People v. Norberto Clores
y Coral, G.R. No. 82362, April 26, 1990; People v. Rolando Caldito,
et al., G.R. Nos. 78432-33, February 9, 1990; People v. Pedrosa,
169 SCRA 545 [1989]; People v. Ramos, 167 SCRA 476 [1988].  Hence, for lack of a clear unlawful
aggression on the part of the victim Roberto and of the reasonable necessity of
the means employed by the accused-appellant, the justifying circumstance of
defense of relative cannot be availed of. 
(See People v. Sagre, 89 SCRA 570 [1979];
People v. Reynaldo Lingatong, G.R. No. 34019, January
29, 1990)

The accused-appellant himself categorically stated in open court
that when he saw his brother Fredeswindo soaked with
blood, he thought that his brother was already dead at the time (TSN, October
1, 1985, p. 5) Moreover, defense witness Larry Bañaga
testified that he was with the accused-appellant when the latter was summoned
by his other brother Julie who informed the accused-appellant that their
brother Fredeswindo had been killed.  (TSN, September 2, 1985, p.
50). In the light of these declarations, the flight of the
accused-appellant after shooting Roberto without even bothering to examine the
actual state of his sprawled brother Fredeswindo all
the more discredits the allegation that the killing was done by the
accused-appellant in defense of a relative. 
No better test has yet
been found to measure the value of a witness’ tesimony than its conformity to the
knowledge and common experience of mankind. 
(See People v. Maribung, 149 SCRA 292 [1987])
Suffice it to state that under the facts of this case flight is indicative of
guilt as we have held time and again. 
(People v. Wilfredo Malinao
alias “Welly“, et al., G.R. No. 63735,
April 5, 1990; People v. Cesario Degamo,
et al., G.R. No. 60945, March 6,
1990; People v. Aurelio Espinosa alias “Rolly“,
et al., G.R. No. 72883, December 20, 1989; People v. Noelito
Manzanares, G.R. No. 82696, September 8, 1989.)

As regards the presence of treachery qualifying the act of
killing to murder, we find the
records bereft of any proof that the mode of attack was consciously adopted by
the accused-appellant to insure that the killing will be nicely executed
without any risk to himself.  The act of the accused-appellant in taking a
gun with him on his way to the scene of the reported killing coupled with the
attendant circumstances that he was working at the time when one of his
brothers related the slaying of their brother and that he knew nothing about the earlier brawl
in his brother-in-law’s place shows that it was more the product of an impulse
rather than a conscious and a discerning mind. 
For treachery to exist, there must be evidence showing that
the mode of attack was consciously
adopted by the appellant to make it impossible or difficult for the
person attacked to defend himself or retaliate. 
(Art. 14, subpar. 16, Revised Penal Code;
People v. Virgilio Uribe,
G.R. No. 76493-94, Feb. 26, 1990 citing People v. Crisostomo,
160 SCRA 47 [1988]).

WHEREFORE, the judgment appealed from is hereby
MODIFIED.  Accused-appellant Florentino Eduarte is found
guilty beyond reasonable doubt of the crime of HOMICIDE without any aggravating
or mitigating circumstance.  The
prescribed penalty is reclusion temporal in its medium period but
applying the Indeterminate Sentence Law, the accused-appellant is hereby
SENTENCED TO EIGHT (8) YEARS and ONE (1) DAY of prision
mayor as MINIMUM and SEVENTEEN (17) YEARS and FOUR (4) MONTHS of reclusion temporal as MAXIMUM.  The indemnity imposed by the trial court in
the amount of P30,000.00 is AFFIRMED.

SO ORDERED.

Fernan, C.J., (Chairman), Feliciano, Bidin, and Cortes, JJ., concur.