PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. EDGAR JEREZA, ACCUSED-APPELLANT.

The Court affirms the judgment herein appealed from.

The accused-appellant was charged with murder under an information filed on November 24, 1986, stating thus:

The undersigned Second Assistant Provincial Fiscal of Aklan hereby accuses EDGAR
JEREZA of the crime of MURDER, committed
as follows:

That on or about the 8th day of July, 1986, in the afternoon, at the Poblacion,
Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with treachery
and evident premeditation, without just motive, while armed with Caliber .22
Revolver, marked “Rohm” with Serial No. 44600, and with intent to
kill one NOEL RIMON, did then and there wilfully,
unlawfully and feloniously attack, assault, shoot and wound the said NOEL
RIMON, thereby inflicting upon the latter mortal wounds, to wit:

# 1 Lacerated Wound, 1.5 x 1.5 cm.;
Forehead, right;

# 1 Gunshot wound, 1 x 1 cm. with Contusion, collar, maxillary
area, left;

# 3 Abrasion, 1 x 4 cms., zygomatic area, right.

as per Medico-Legal Report on Physical
Injuries signed Dr. Esteban B. Villaruel, Resident
Physician, Dr. Rafael S. Tumbokon Memorial Hospital, Kalibo, Aklan, hereto
attached and forming integral part hereof, as Annex “A” which wounds
directly caused the death of the said NOEL RIMON, as per Autopsy Report of Dr.
Roberto V. Garcia, Medico-Legal Officer, National Bureau of Investigation,
Medico-Legal Division, Manila, likewise attached hereto and made integral part
hereof as Annex “B”.

That as a result of the criminal acts of the herein accused, the
heirs of the deceased NOEL RIMON suffered the following damages:

1. P30,000.00 as actual and compensatory
damages;

2. P30,000.00 as moral damages; and

3. P20,000.00 as exemplary damages.^[1]

The accused pleaded “not guilty”, and although he admitted
having taken the life of the victim, Noel (“Boy“) Rimon, he allegedly did so in
defense of his own person.

In his order of July 14,
1987, the trial judge^[2]
set the case for reception of evidence for the defense, to establish
self-defense.

The defense first presented Arthur Castor, a driver, and a resident of Libacao, Aklan.  He alleged that on July 8, 1986, he was aboard a bus, a passenger
truck operated by the Seraspi company returning from
Iloilo City to Kalibo, Aklan,
driven by the victim, when, at or about five o’clock in the afternoon, and
after the vehicle had parked near the Castillo monument in Kalibo,
Aklan, he was distracted by an argument going on
between the victim and the accused, about a certain “clutchbag
which Edgar would like to bring to the municipal hall.”^[3] The accused allegedly then alighted.  The victim, however, tailed him.  He allegedly then saw the victim hacking the
accused with a bolo he had kept under his seat, which the latter parried, but
which decked him.  Thereafter, the
accused reached inside the clutchbag in question,
from which a twenty-two caliber automatic pistol emerged, which the accused
aimed at the victim and which he fired. 
The first shot allegedly hit the victim in the face.  He fired two more shots both of which also
found their mark.

He also declared that he was at the rear portion of the bus at
that time as the two protagonists struggled outside.  He claimed that he was
the only passenger by then.

The defense likewise presented Teresita
Loresco, a medical records librarian at the Dr.
Rafael Tumbokon Memorial Hospital in Kalibo, and a resident of Andagao,
Kalibo, Aklan.  She averred that on July 8, 1986, the accused was admitted to the hospital for treatment of hacking
wounds.  The accused allegedly suffered
four “multiple incised wounds.”^[4] The attending physician’s, Dr. Esteban Villaruel’s, medico-legal report stated that he sustained
cuts on the left arm, and right hand.^[5] It also appeared that he was discharged on
the same day.

In his testimony, the accused
claimed that he was in the bus in question as inspector
for Seraspi bus company, while
the victim drove it.  He contended that as the bus unloaded passengers and cargo near the Castillo monument, in Kalibo, he and the victim tangled in an argument concerning
a clutchbag which he allegedly found in one of the
bus seats, and which contained a firearm. 
He allegedly sought to surrender it to the Kalibo
police, but the victim allegedly insisted that they keep it.  He allegedly alighted, anyway, on his way to
the police station, the clutchbag tied around his
arm, when allegedly, “somebody shouted and when I looked back, I saw that
it was Boy Rimon and he was already hacking me and I
was hit here on my left arm.”^[6] He allegedly retreated, but the victim
allegedly boloed away, hitting him on the left
breast and later, the left arm.  He
allegedly rolled over to a canal, opened the clutchbag,
and reached for the gun, with which he shot the victim.  He shot him three times until he, the victim,
fell and died.  He also said that when he
fired at him, he was lying on the ground while the victim stood about a meter
away.

He later surrendered to the municipal authorities and turned over
the firearm to the police.  He was also
brought to the Dr. Tumbokon Memorial Hospital when
Dr. Villaruel treated him for bolo wounds.

On cross-examination, he testified that he and the victim were
alone in the bus when they began exchanging words.  He also admitted knowing how to operate a
motorcycle, being a motocross racer, and that he had joined racing
competitions.

The defense then rested, and the prosecution presented rebuttal
evidence.

The prosecution put Bobby Masangya, of Batan, Aklan, on the stand.

He testified that on July
8, 1986 he boarded a Seraspi bus headed
for Kalibo.  It
was driven by the victim, and in which the accused was the inspector.  He also said that accused actually alighted
at the New Washington-Banga-­Kalibo intersection, and
jumped off it while the bus was in motion. 
The bus later stopped at D. Maagma
Street near the Castillo monument and in front of
the Seventh-Day Adventist
Church.

He subsequently saw the accused on a motorcycle proceeding toward
the bus.  He stated that he was then a
seat behind the driver, by the window.  There
were allegedly about twenty-five other passengers on board the bus.  The accused then supposedly parked his
motorcycle, dismounted, and “he had with him a clutch bag and he went round the portion of the bus where the driver
was situated then opened his clutch bag, took a gun and [shot] the
driver.”^[7] He allegedly shot him outside the bus, from
the driver’s window.  Mr. Masangya said he rose and dashed toward the back of the bus
and jumped out of the window.  He heard
two more gunshots thereafter.

He also asserted that he did not hear any conversation preceding
the shooting between the accused and the victim, and that the accused did not
carry anything when he first got off the bus. 
At the first shot, the other passengers likewise allegedly scurried in all
directions and scampered for safety.

Felipe Reprado, of Banga,
Aklan, corroborated Masangya’s
testimony, and alleged that “[s]omebody arrived
riding a motorcycle and parked it in front of the Seraspi
Mini Bus and then he drew a gun from
his waist and shot the driver on his seat.”^[8]

He said that he was at the “Youth Hostel” along Maagna Street at that time, about twelve meters from the
bus.  After the first shot, he said that
the driver, his face bleeding, stood up brandishing a bolo, after which he
heard two shots more.

Dr. Esteban Villaruel, of the Dr. Tumbokon Memorial Hospital, testified that it was he who
prepared the medico-legal report of the
injuries of the victim.  His report
revealed:

# 1 Lacerated Wound, 1.5 x
1.5 cm., Forehead, right;

# 1 Gunshot Wound, 1 x 1 cm. with Contu­sion, collar, maxillary
area, left;

# 3 Abrasion, 1 x 4 cms., zygomatic area, right.^[9]

Police lieutenant Vicente Seraspi, of Kalibo, then officer-in-charge
of the Kalibo
Integrated National Police, claimed that the accused, on July 8, 1986, went
to the station to surrender a firearm. 
The accused was allegedly on a motorcycle when he arrived at the
station.  He also appeared bloodied, for
which reason, he was advised to check into a hospital, the Dr. Tumbokan Memorial, about 200 meters away.

He identified the firearm to be a “Rohm”, with serial No. 44600, with three live
ammunition and three empty shells in the cylinder.

The trial judge found the evidence for the prosecution more
convincing and compatible with claims that the accused had been guilty of
murder, qualified by treachery.  He
sentenced the accused to reclusion
perpetua, taking into consideration the mitigating
circumstance of voluntary surrender, offset, however, by the generic
aggravating circumstance of evident premeditation.  The accused was also adjudged to indemnify
the heirs of the deceased in the
amount of P30,000.00, and to pay the costs.

As we said, we
affirm, save for certain modifications, the judgment under appeal.

There is no question that the accused shot the victim, three
times, which caused his death.  The only
question is whether or not he shot him in self-defense.  The evidence before the trial court, as found
by the judge, indicated that it was plain murder and that it was the victim, in
hacking away at the accused, which also caused some injuries to the latter, who
was in fact defending himself from the former’s
assault.  The errors raised by the
defense have to do with the assessment of the believability of the witnesses’
testimonies, and we have held time and again that credibility of witnesses is a
matter we leave, as a general rule, to the trial judge to determine.^[10]
This is so because first, the
Supreme Court does not try facts.  Its
office is preeminently, to review errors of law.  No valid reason has been advanced why we should depart from the rule.

The evidence indeed discloses that the accused, contrary to his
story, had earlier alighted from the bus, followed it via a motorcycle, parked
it as the bus parked, slinked around
it, and shot the deceased from the window. 
Two reasons persuade the Court.  First, the witness’, Bobby Macangya’s
testimony, wherein he categorically declared that the accused acted in the
manner above-described.  As the court a quo did, we find his testimony to be
forthright, candid, and persuasive.  The
accused has not successfully shown any improper motive why Mr. Masangya should perjure his testimony.  Second, it jibes with the accused’s
very evidence that he knew how to operate a motorcycle, and the fact that he
was seen riding one and arrived at the crime scene on one.  Third, police lieutenant
Vicente Seraspi, testified that the accused arrived
at the station aboard a motorcycle.  The accused’s bare denials that he had been all along on board
the bus can not overcome these positive testimonies.

The fact that Masangya maintained that
the accused drew his pistol from a clutchbag, while
Felipe Reprado said that he reached for it from his
waist, does not contradict meaningfuly the finding
that he did draw a firearm and that he shot the deceased with it.  At best, the conflicting testimonies involve an inconsistency on an insignificant
footnote explained, first, by the swift turn of events that had
unfolded, and second, by the frailty of human memory.  At any rate, the accused admits having shot
the victim, and whether he shot him with a gun he kept in a clutchbag
or tucked under his waist, the fact remains that he had a
gun, and that he shot the victim
with it.

We can not accept the accused’s claim
of self-defense, first, because he has not convincingly shown it amid the ample
proofs that he was not defending himself, but rather, was committing
cold-blooded murder.  The testimony of
defense witness Arthur Castor, to the effect that he was the lone passenger who witnessed
the event, is belied by the fact that Masangya,
for one, and Reprado,
for another, had come forward to testify that there were other passengers
aboard, and that they numbered around twenty-five.

The accused can not point to his injuries to illustrate self-defense.  What the evidence shows is that after he
fired his first shot, the victim did not die immediately, although normally it
would have been fatal, but managed to alight from the bus and swing away with
his bolo for which the accused fired at him again–twice.  Dr. Villaruel himself, in reply to the questioning:  “…could the victim inflict those
wounds to the accused after he was shot…^[11] stated that: 
“It is possible.”^[12] Indeed,
the records show that the accused sustained but minor wounds, which did not require
confinement, and which give rise to
valid inferences that the victim had been weakened and had swung at the accused
indiscriminately.  This was in fact confirmed by Masangya
and Reprado that after the first shot, the deceased
rose wielding a bolo.

The records indeed suggest that the victim had managed to get off his seat, exit from the bus, and follow his assailant outside
(notwithstanding his facial wound) since he, the
victim, was found lying on the ground.

It is not therefore farfetched to say that the deceased could still have attacked the accused
with his bolo although he had already been injured.  Two things convince us:  (1) Reprado,
prosecution witness, testified that he saw the victim stand up after the first
shot was fired; and (2) while he did
not see what transpired later, the evidence on record shows that the victim
fell on the ground, outside the bus, which means that he was able to leave the
vehicle, and that judging from the accused’s admitted
bodily cuts, he managed to bolo, without fatal success, the accused.

As the Solicitor General further observes, the shots came at
intervals, in Mr. Reprado’s language, “(p)erhaps two (2) minutes,”^[13] meaning, that, there was activity after the
first shot.

That the offense was attended by treachery is adequately
buttressed by the records.  Under the
law, treachery involves a mode of attack adopted by the culprit to insure
consummation with no risk to himself.^[14]
The circumstances herein show that the
accused had alighted from the bus, rode on a motorcycle, pursued the bus, and once it had parked, snaked around it
and shot its driver.  Although the victim
did not die immediately, the attack made on him was sudden, without warning,
and which caught him with his guards down. 
We can not say that the victim had insinuations that the accused would
commit a dastardly act because of their earlier altercation, assuming that there was such an altercation, because a brief interval had passed between that
and the actual act of shooting.  Albeit
in one case,^[15] the Court held that where the victim was
able to retreat, although the attack was sudden, alevosia
can not be appreciated, the Court can
not apply that case here.  In that case,
the victim, upon retreating was
able to defend himself, and he can not be said to have been defenseless.  Here, however, the accused had wounded the
victim–as a consequence of his surprise attack–and if he, the victim,
happened to “defend” himself, it was no defense
at all, although he was able to inflict superficial wounds on the accused.

We rule out, however,
evident premeditation (which the trial court appreciated as a generic
aggravating circumstance) because in evident premeditation, the time the
accused had mustered the determination to commit the crime must be well-established. 
It was not shown here.

The Court is put to task
in appreciating voluntary surrender as a mitigating circumstance because all
that the records reveal is that the accused trooped to the Kalibo
police headquarters to surrender the firearm. 
It is not clear whether or not he also sought to submit his very person
to the authorities.  We leave him,
however, the benefit of the doubt, and consider his arrival at the police
station as an act of surrender.

There being one
mitigating circumstance, the accused is hereby sentenced to the minimum period
prescribed by law for the crime of murder, reclusion temporal maximum, and
pursuant to the indeterminate sentence law, he is sentenced to ten years and
one day of prision mayor, to eighteen years and one
day of reclusion temporal, and, in the light of the new policy of the Court, to
pay an increased indemnity of P50,000.00 from the
amount of P30,000.00 fixed by the trial court.

WHEREFORE, this
appeal is DISMISSED.  The
accused-appellant is SENTENCED to undergo imprisonment of ten (10) years and
one (1) day of prision mayor, to eighteen (18) years
and one (1) day of reclusion temporal; to pay indemnity in the sum of FIFTY
THOUSAND (P50,000.00) PESOS to the heirs of Noel Rimon.

SO ORDERED.

Melencio-Herrera, (Chairman),
Padilla, and Regalado,
JJ., concur.

Paras, J., on leave.

^[1] Original Records, 21.

^[2] Hon. Volicaria,
Fructuoso, presiding Judge, Regional Trial Court,
Branch 6, Kalibo, Aklan.

^[3] T.s.n., Session of August 11, 1987, 5.

^[4] T.s.n., Session of September
25, 1987, 4.

^[5] Original Records, id., 176-K.

^[6] T.s.n., Session of November 27, 1987.

^[7] T.s.n., Session of March 18, 1988, 16.

^[8] T.s.n., Session of April 7, 1988.

^[9] MEDICO-LEGAL REPORT ON
PHYSICAL INJURIES.  July 30, 1986.

^[10] See, e.g., Araneta v. Court of Appeals, G.R. Nos. 43527 and 43745, July 3, 1990.

^[11] T.s.n., Session of June 15,
1988, id., 5.

^[12] Id.

^[13] T.s.n., Session of April 7, 1988, id., 7.

^[14] People v. Cempron,
G.R. No. 66324, July 6, 1990.

^[15] People v. Diva, No. L-22946, April 29, 1968, 23 SCRA 332.