THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SERGIO CURARATON Y MONINIO, ACCUSED-APPELLANT.

Sergio Curaraton y Moninio
was charged with the crime of murder allegedly committed as follows:

That on or about December 12, 1989, in the City of Davao,
Philippines, and within the jurisdiction of this Honorable Court, the
above-mentioned accused, armed with a bolo, with treachery and cruelty and
outraging the corpse of the victim, with intent
to kill, willfully, unlawfully and feloniously attacked, assaulted and
hacked with said bolo one Timoteo Cabagte, thereby inflicting upon the latter
mortal wounds which caused his death.

CONTRARY TO LAW.

Davao City, Philippines, December 20, 1989. (p. 13, Rollo.)

After trial on the merits due to a plea of not guilty being
entered, the court a quo rendered a decision on December 4, 1990,
disposing:

WHEREFORE, the Court finds the accused Sergio Curaraton guilty
beyond reasonable doubt of the crime of murder with the attendant circumstances
of cruelty and disregard of the age of his victim, Timoteo Cabagte, and hereby
sentences him to suffer reclusion perpetua and to indemnify his heirs in the
amount of P30,000.00 for his death and
P3,000.00 for his burial.

Accused-appellant now seeks reversal on the basis of
self-defense, or “on the assumption that his conviction is in order”,
that he be credited the
mitigating circumstance of voluntary surrender.

The factual setting of the case, as depicted by the Solicitor
General in his counter-statement of facts, which, after a review of the record,
we find to be fully supported by the evidence and which we, therefore, hereby
adopt, is as follows:

In the evening of December 12, 1989, Sergio Tonacao was at his
house in Kutson, Biao, Guianga, Tugbok, Davao City. At about 10:00 p.m., appellant appeared outside his house armed
with a bolo and a big stone and challenged­ Tonacao to come down and
fight. Tonacao advised appellant to go
home and that they would just talk about the matter the next day (pp. 3-5, TSN Aug. 28, 1990). Appellant responded that he wanted to settle the matter amicably
with Tonacao that same night. Tonacao
agreed and he came down from his house. Appellant shook hands with him and also with Timoteo Cabagte, Tonacao’s
brother­-in-law, who joined them after coming from the house of Tonacao’s
neighbor about 40 meters away. Appellant told Tonacao: “Tocayo (name sake), you are not involved
in this.” (p. 5). Appellant, who
was 37 years old, addressed Cabagte, who was 54 [should be 65] years
old, as “Manong” as they shook hands: “Manong, you have nothing to do with this.” (p.
5). After they shook hands, Cabagte
went back to his neighbor Claudio Capricio’s house. Tonacao noticed that appellant followed Cabagte (pp. 4, 5, Id.)
and hid behind a coconut tree along the path leading to the house of Capricio
about 10 armslength from Tonacao’s house (p. 6). Tonacao was curious why appellant was still holding the stone and
bolo so he surreptitiously went closer to observe (p. 6). When Tonacao was about two armslength from
appellant, Cabagte came walking back along the trail and as Cabagte passed the
coconut tree where appellant was hiding, Tonacao saw appellant suddenly strike
Cabagte with the rock he was holding. Cabagte
fell on the ground and appellant immediately thrust his bolo into Cabagte’s
body several times. Not satisfied with
felling Cabagte, appellant chopped the victim’s body with the same bolo,
hitting the victim on the left forehead, left portion of the face, and at the
back, even as the victim lay motionless and dead (p. 7). Tonacao was afraid that appellant would turn
on him, and so he did not go to the victim’s aid (p. 7).

Tonacao sought the assistance of Danilo Palad and together they
went to the scene of the crime and found only the mutilated corpse of
Cabagte. Appellant was no longer at the
scene (p. 8).

The Necropsy Report (Exh. G) prepared and signed by Dr. Napoleon de
la Peña, District Health Officer at Calinan, Davao City, described the location
and severity of the eleven wounds suffered by the victim, to wit: (i) The first wound is a “hack wound,
13 cm. length, 4 cm. depth, occipital, left” located at the back portion
of the head, running diagonally; (ii) the second wound is a “hack wound, 4
cm. length, 2 cm. depth, mandibular, left” located at the jaw; (iii) the
third wound is a “hack wound, 5 cm. length, 4 cm. depth,
mandibulomaxillary left”, located at the left temple running down to the
jaw; (iv) wound no. 4 is an “incised wound, 2 cm. length, one cm.
depth” located on the nose bridge; (v) wound no. 5 is a “lacerated
wound, 2 cm. length, scalp depth
supraorbital right” located at the eyebrow; (vi) wound no. 6 is a
“hack wound, 7 cm. length, 5 cm. depth, lumbar right” at the right
side of the body below the ribs; (vii) wound no. 7 is “amputated forearm,
distal third right” – the right hand was completely cut off, about 2
inches from the wrist; (viii) wound no. 8 is “lacerated wound, one cm.
length 1/2 cm. depth, anterior axillary line, axilla “from front of the
right armpit going inside the armpit; (ix) wound no. 9 is a “hack wound,
15 cm. length, 5 cm. depth, scapular, left”, at the back just below the
left shoulder running down to the anterior axillary line, below armpit; (x)
wound no. 10 is a “hack wound, 13 cm. length, 6 cm. depth, suprascapular,
right” from just below the right shoulder at the back running horizontally
towards the end of the shoulder; and (xi) wound no. 11 is a “hack wound, 7
cm. length, 5 cm. depth, gluteal, left” at the left buttocks (pp. 42-47,
TSN 8-30-90).

The cause of death was massive hemorrhage secondary to hack
wounds. The wounds could have been
caused by a sharp-bladed instrument. The most serious and fatal wound is wound no. 1 (hack wound, 13 cm.
length, 4 cm. depth, occipital) because it involved the brain – that wound
alone could already have caused death (pp. 47-48, TSN 8-30-90).

At around 11:00 p.m. that same night, Epifanio Cabagte, brother of
the victim reported the killing of his brother at the hands of appellant to the
Tugbok Patrol Station. Patrolman
Limbaco went to the scene of the crime to investigate and thereafter recorded
the incident in the blotter. The
following morning he received information from the Calinan Patrol Station that
appellant had surrendered himself and the bolo (Exhibit “A”) at said
station where the incident was also entered in the blotter (Exhibit
“B”). At 7:30 in the morning
of December 13, Pat. Limbaco dispatched three policemen to Calinan to take
custody of appellant and the bolo.

Appellant denied that prior to the incident he had gone to the
house of Tonacao and shook hands with Tonacao and Cabagte but claimed that he
was on his way home, after cleaning his tuba container, when somebody struck
him down with a nipa frond. He stood up
and hit back, (pp. 4-8, Appellee’s Brief.)

Under his first assigned
error, accused-appellant contends that the trial court erred in not acquitting
him on the ground of self-defense. He
must, however, understand that an accused who puts up self-defense bears the
burden of establishing the elements of self-defense by clear and convincing
evidence to the satisfaction of the court (Ortega vs. Sandiganbayan, 170
SCRA 38 [1989]). Should he fail to do
so, his conviction follows as a matter of course. Said elements are the following:

1.     
Unlawful aggression on the part of the victim,

2.     
Reasonable necessity of the means employed to prevent or repel
the aggression, and

3.     
Lack of sufficient provocation on the part of the person
defending himself (Ortega vs. Sandiganbayan, supra, p. 42.)

It is essential that the
first element of self-defense, unlawful aggression initiated by the victim,
must be clearly shown for in its absence, self-defense cannot exist (Ortega
vs. Sandiganbayan, supra). The evidence shows that, after accused-appellant assured Cabagte, the
victim, addressing and telling him, “Manong, you have nothing to do with
this”, and after they shook hands, Cabagte left to go back to the house of
his neighbor. Accused-appellant,
however, there­after waited in ambush for Cabagte behind a coconut tree along
the path leading to the house of Capricio. When Cabagte passed by the coconut tree behind which
accused-appellant was lurking, accused-appellant suddenly sprang out of ambush
and struck Cabagte with the rock he was holding, stunning and felling him. Thereupon, accused-appellant immediately
thrust his bolo into Cabagte’s body several times and hacked the fallen Cabagte
repeatedly at several parts of his body as he lay still and motionless.

The claim of accused-appellant that he was attacked by Cabagte
with a nipa frond is bereft of credence considering that Cabagte was the first
one to leave the house of Sergio Tonacao peacefully winding his way toward the
house of his neighbor Claudio Capricio, lulled into a false sense of security
that accused-appellant bore him no enmity by accused-appellant’s conciliatory
but deceitful declaration that “Manong, you have noting to do with this.”

Even assuming that Cabagte indeed attacked accused-appellant with
a nipa frond, the killing of Cabagte can not be justified for accused-appellant
employed unreasonable means to repel the alleged attack. We doubt that a nipa frond can inflict
serious injuries much less cause death. Accused-appellant’s reaction to this imagined aggression was clearly
excessive and unnecessary as shown by the multiple wounds he had inflicted on the victim.

We, therefore, find that accused-appellant has failed to
establish that he acted in self-defense when he killed Cabagte. Consequently, it is no longer necessary to
discuss the other elements of self-defense.

The crime committed by accused-appellant is murder qualified by
treachery as the killing was sudden and unexpected (People vs. Liston,
179 SCRA 415 [1989]). The killing,
however, was not attended by the
aggravating circumstances of cruelty and disregard of age as erroneously found by the trial court. Cruelty is to be taken into consideration
where the multiple wounds of the victim were inflicted unnecessarily while he
was still alive in order to prolong his physical suffering (People vs. Curiano, 9 SCRA 323
[1963]). The evidence in the case at
bar shows that, when accused-appellant continued hacking Cabagte, the latter was
already dead or at least totally unconscious and could no longer feel or
experience additional pain that would prolong his physical suffering. Neither can the aggravating circumstance of
age be appreciated because the same is absorbed
by treachery (People vs. Gervacio,
24 SCRA 960 [1968]).

The mitigating circumstance of voluntary surrender should have
been considered by the trial court in the determination of the penalty. The evidence shows that immediately after
slaying Cabagte, accused-appellant walked all the way straight to the Calinan
Patrol Station in Calinan, Davao City to surrender.

The crime committed is murder qualified by treachery, with the
mitigating, circumstance of voluntary surrender and with no aggravating
circumstance. The penalty for murder
under Article 248 of the Revised Penal Code is reclusion temporal
in its maximum period to death. Pursuant to Article 64(2) in relation to Article 77 of the Revised Penal
Code, the penalty to be imposed should be 17 years, 4 months, and 1 day, as
minimum, to 20 years, as maximum, both within the range of reclusion temporal. In
accordance with the Indeterminate Sentence Law which applies in this case, the minimum should be within range of the
penalty next lower in degree to be fixed in any of its periods in the
discretion of the Court. Under Article
61, paragraph 3, of the Revised Penal Code, when the penalty prescribed for the
crime is composed of one or two indivisible penalties and the maximum period of
another divisible penalty, as in this case, the penalty next lower in degree
shall composed of the medium and minimum periods of the proper divisible
penalty and the maximum of that immediately following in the scale of
penalties. The penalty next lower in
degree, therefore, ranges from the maximum of prision mayor to the
medium of reclusion temporal (People vs. Ordiales, 42 SCRA
238 [1971]).

The award of civil
indemnity should be increased to P50,000.00 in accordance with the more recent
pronouncements of this Court (People vs. Jereza, 189 SCRA 690 [1990]; People
vs. Sazon, 189 SCRA 700 [1990]; People vs. Lugto, 190 SCRA 754
[1990]; People vs. Iligan, 191 SCRA 643 [1990]).

WHEREFORE, the decision of the trial court is hereby
AFFIRMED with the following modifications:

1.     
The penalty shall be an imprisonment term of ten (10) years
and one (1) day of prision mayor, as minimum, to eighteen (18) years,
eight (8) and one (1) day of reclusion temporal, as maximum (People vs.
Alcantara, 163 SCRA 783 [1988]); and

2.     
The civil indemnity to be paid by accused–appellant to the
heirs of the victim is increased to Fifty Thousand Pesos (P50,000.00).

SO ORDERED.

Feliciano, (Acting Chairman), Bidin, Davide, Jr., and Romero, JJ., concur.