PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. TEOFILO KEMPIS, ACCUSED-APPELLANT.

This is an appeal from the decision in Criminal Case No. 841 of Branch
10 of the Regional Trial Court (RTC), Eighth Judicial Region, at Abuyog, Leyte,
promulgated on 9 October 1990^[1]
finding the accused guilty beyond reasonable doubt of the crime of murder, and
sentencing him:

“x x x to suffer the penalty of RECLUSION PERPETUA, to
indemnify the heirs of Lolito Rivero the amount of P30,000.00 without
subsidiary imprisonment in case of insolvency and to pay the costs.

The accused who has been detained since his arrest on May 19, 1989
up to the present is hereby accorded full credit of the preventive imprisonment
he has undergone, pursuant to Art. 29 of the Revised Penal Code.

SO ORDERED.”^[2]

Accused Teofilo Kempis, then a member of the Philippine
Constabulary (PC), was initially charged with two (2) counts of murder, viz.: for the stabbing of Antonio Miraflor and the
shooting of Lolito Rivero, grave threats and abuse of authority. In preparation for a general court martial
proceedings, Sgt. Samuel Rosales of the Office of the Regional Inspector (ORI)
of the PC/INP Regional Command 8 at Camp September 21st Movement, Palo, Leyte,
conducted an investigation. In his
Investigation Report to the Regional Inspector General of the said command
dated 13 December 1988, Sgt. Rosales recommended that the case be referred to
the Regional Judge Advocate for the latter’s legal opinion.^[3]
In the meantime, however, the accused was discharged from the service. The records of the case were then
transmitted to the Office of the Provincial Prosecutor of Leyte for appropriate
action.

In due course, the Provincial Prosecutor of Leyte caused to be
filed on 13 April 1989 the Information in Criminal Case No. 841, the accusatory
portion of which reads:

“That on or about the 15th day of September, 1988, in the
Municipality of Mayorga, province of Leyte, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with deliberate
intent to kill and with treachery and evident premeditation, did then and there
wilfully, unlawfully and feloniously attack, assault, shot (sic) and wound one
LOLITO RIVERO with an M-16 rifle with which said accused had purposely provided
himself, thereby causing and inflicting upon him gunshot wounds on his body
which caused his death.

Contrary to law.”^[4]

The accused entered a plea of not guilty during his arraignment
on 29 June 1989.^[5]

Trial on the merits then ensued.

Seven (7) witnesses^[6]
testified for the prosecution. For the
defense, the accused testified on his behalf and presented six (6) other
witnesses,^[7]
including the common-law wife of the victim.

In convicting the accused, the trial court relied on the
prosecution’s version which, except for the name of the victim which should
read Lolito Rivero and not Rivera, is succinctly, but faithfully,
summarized in the Brief for the Appellee^[8]
as follows:

“At about 3:00 o’clock in the afternoon of September 15, 1988,
Lolito Rivera was at his house located in Bgy. Talisay, Mayorga, Leyte. Rivera had just butchered a pig and was
cooking lunch for his guests which included Carmencita Navarro, Corazon de Paz,
Rivera’s common-law wife and Rivera’s sister Rosalina Adonis. Suddenly, appellant Kempis a member of the
Philippine Constabulary (PC) and a companion, Wilfredo Bautista arrived at the
yard of Rivera’s house on a board (sic) a motorcycle. Both were armed with armalite rifles. Appellant insisted on bringing Rivera with them and directed
Rivera who was standing near the kitchen door to board the motorcycle. Rivera, however, declined saying that he was
cooking. Angered by such refusal,
appellant successively fired his armalite rifle at Rivera hitting the latter’s
arm, chest and mouth while Bautista who stationed himself behind a banana tree
had his rifle Rivera (sic) died instantly.

Thereafter, appellant and Bautista boarded their motorcycle and
left (pp. 4-9, tsn, June 15, 1989). Adonis went to the house of the barangay captain to report the incident
but since the latter was not there, Adonis immediately proceeded to the Police
Station at Mayorga, Leyte (pp. 21-22, supra).

Postmortem Examination shows that five of the seven wounds
inflicted on Rivera were gunshot wounds.”^[9]

On the other hand, the accused’s version discloses that the
incident in question actually occurred on 16 September 1988 — not on 15
September 1988 — and that he killed Lolito Rivero under circumstances that
could exempt or mitigate his liability. His counsel puts the matter in more explicit terms before starting with
the direct examination of the accused:

x x x

“Additionally, we are offering the testimony of the witness to
show that the incident happened under circumstances that could exempt or
mitigate the liability of the accused.”^[10]

As condensed in his Brief,^[11]
the accused’s version reveals that:

“At about 3:00 o’clock on September 16, 1988 — not September 15,
1988 — the accused, who was a PC soldier, went to the house of one Lolito
Rivero, at Barangay Talisay, Mayorga, Leyte, for the purpose of advising the
latter not to steal and create trouble in their town. Upon reaching Rivero’s house, the accused met his common-law-wife
Corazon de Paz Catanoy who had a visitor then by the name of Francisca
Rinoza. (Francisca Rinoza was there
because she was demanding payment of Corazon’s debt to her). When the accused asked from Corazon where
Rivero was, she told the accused that Rivero was in their kitchen doing
something. At the time, the accused was
carrying his M-16 rifle slung on his left shoulder with its barrel pointing
down. Upon reaching the door of the kitchen,
the accused did advise Rivero as he intended. Rivero told him ‘I will not do it again, Sir, as I have just come out of
jail.’ Hearing Rivero’s promise, the accused turned his back to leave. It was at that juncture that Rivero
immediately grabbed the accused’s M-16 rifle. They grappled for the rifle until it went off and Rivero was hit. The latter died because of gunshot
wounds.”^[12]

As to the prosecution’s claim that the incident occurred on 15
September 1988, the accused set up the defense of alibi. According to him, he was in barangay
Cabacungan, Dulag, Leyte — specifically in the house of Dominador Kempis —
from:

“About 12:00 o’clock noontime up to late afternoon.”^[13]

for the wake of his cousin, Diosdado
Kempis, who had been killed.^[14]
Dominador Kempis testified that the accused arrived at his house at about
“1:00 o’clock to 2:00 o’clock” and left at about “6:00 o’clock
in the afternoon.”^[15]

The trial court gave full faith and credit to the testimonies of
the prosecution witnesses and pronounced that Lolito Rivero was in fact shot
and killed by the accused on 15 September 1988. It brushed aside the alibi interposed by the latter because
Rivero’s place is located in the Municipality of Mayorga which is adjacent to
the Municipality of Dulag. It is in
Dulag where the accused claims to have been for the wake of Diosdado
Kempis. The court a quo observed
that “it would not have been impossible for the accused to have gone to
Bgy. Talisay (in Mayorga) and kill Lolito as accused admitted he owns a
motorcycle.”^[16]
Moreover, the court declared that the accused “was positively identified
by the prosecution witnesses that he killed Lolito Rivero on September 15,
1988.”^[17]

Anent the accused’s claim of self-defense, the trial court
rejected the same as it was of the opinion that the accused, being a soldier,
was more knowledgeable and trained in the use of firearms than the victim, a
mere farmer, “who at the time of the incident was not even armed with a
bolo or any weapon.” The court added that “even granting x x x that
Lolito was able to grab the gun x x x Lolito x x x would have not know (sic) how
to use it on the accused.”^[18]
It further observed that although the accused reported the killing to the
police, he failed to inform the latter that he had merely acted in
self-defense.

After the promulgation of the decision on 9 October 1990, the
accused seasonably filed a Motion for Reconsideration^[19]
alleging therein that the trial court erred (a) in not crediting him with the
mitigating circumstance of voluntary surrender and (b) in ruling that the
incident actually took place on 16 September 1988 and not on 15 September 1988
as testified to by prosecution witnesses Rosalina Adonis, Urbano Adonis and
Carmen Navarro, and as evidenced by the death certificate of the victim, a
xerox copy of which was annexed to the motion. The prosecution opposed the motion.^[20]
In its Order of 8 January 1991, the trial court denied the motion.^[21]

On 21 January 1991, the accused filed his Notice of Appeal.^[22]

In his Brief, the accused imputes upon the lower court the
commission of the following errors:

“First Assignment of Error

X X X IN IGNORING THE TESTIMONIAL AND DOCUMENTARY EVIDENCE OF THE
DEFENSE WHICH CLEARLY SHOWED THAT THE TESTIMONIES OF PROSECUTION WITNESSES
ROSALINA ADONIS AND CARMEN NAVARRO WERE UNTRUE AND INCREDIBLE.

x x x

Second Assignment of Error

THE LOWER COURT WAS BIASED AGAINST THE ACCUSED AND FAILED TO
EXERCISE THE COLD NEUTRALITY EXPECTED OF AN IMPARTIAL ARBITER, IN VIOLATION OF
THE CONSTITUTIONAL RIGHTS OF THE ACCUSED.

x x x

Third Assignment of Error

X X X IN GIVING CREDENCE TO THE TESTIMONY (sic) OF THE PROSECUTION
WITNESSES DESPITE THE FACT THAT THE SAME ARE INHERENTLY INCREDIBLE AND CONTRARY
TO THE COMMON EXPERIENCE OF MAN.

x x x

Fourth Assignment of Error

X X X IN NOT GIVING THE DEFENSE AN OPPORTUNITY TO PRESENT THE DEATH
CERTIFICATE OF THE DECEASED LOLITO RIVERO, OR AT LEAST CONSIDER THE SAME IN ITS
DECISION.”^[23]

The primary reasons relied on for the first assigned error are
that (a) the declarations of prosecution witnesses Rosalina Adonis and Carmen
Navarro that the incident in question took place on 15 September 1988 are false
because according to defense witness Antonio Varona, it actually happened on 16
September 1988, the day he requested the victim, Lolito Rivero, to slaughter a
pig, and (b) the trial court disregarded Entries No. 904 and No. 905 of the Mayorga
Police Blotter which were made immediately after the incident on 16 September
1988.

The second assigned error is premised on the accused’s conclusion
that the trial court was biased in (a) stating in its decision that the defense
did not submit any documentary evidence when in fact it did submit Exhibit
“1”,^[24]
a portion of the Investigation Report prepared by the Office of the Regional
Inspector, PC/INP Regional Command 8 that refers to Entry No. 904 in the Police
Blotter of Mayorga, Leyte — which in turn states that the accused reported
that he shot Lolito Rivero to death on 16 September 1988; (b) considering the
aforesaid Investigation Report for the prosecution although the same was not
offered in evidence; and (c) restricting the cross-examination of the
prosecution witnesses, and in being liberal during the cross-examination of the
defense witnesses.

In support of the third assigned error, the accused contends that
the trial court took “hook-line-and-sinker and regarded as a gospel truth
the testimony (sic) of the prosecution witnesses, specifically that of
Rosalinda (sic) Adonis, the elder sister of the deceased Lolito Rivero.”^[25]

At the bottom of the first and third assigned errors is the issue
of the credibility of the witnesses. In
view thereof, both errors will be discussed jointly. One well-settled rule which this Court has consistently upheld
and faithfully adhered to is that the issue of credibility is to be resolved
primarily by the trial court because it is in a better position to decide the
question, having heard the witnesses and observed their deportment and manner
of testifying during the trial.^[26]
The trial court’s findings on the matter of credibility are thus entitled to
the highest degree of respect^[27]
and will not be disturbed on appeal in the absence of any showing that it
overlooked, misunderstood or misapplied some facts or circumstances of weight
and substance which would have affected the result of the case.^[28]
Our careful review and evaluation of the testimonies of the witnesses for the
prosecution as well as for the defense yield no cogent or compelling reason to
alter the findings of fact made by the trial court.

Accused’s insistence that the shooting took place on 16 September
1988 — as testified to by Antonio Varona and as allegedly borne out by Exhibit
“1” — and not on 15 September 1988 as testified to by prosecution
witnesses Rosalina Adonis and Carmen Navarro, deserves scant
consideration. It is to be observed
that Varona’s testimony is based entirely on his recollection of the date he
requested the victim to slaughter a pig. The judge who observed his demeanor while he was on the witness stand
found the testimony to be unworthy of credit. The accused provides Us with no weighty reason to overturn the trial
court’s findings. As to Exhibit
“1”, a portion of page 5 of the Investigation Report of Sgt. Samuel
Rosales, investigator of the Office of the Regional Inspector, submitted to the
Regional Inspector General of the PC/INP Regional Command 8,^[29]
which reads:

“28. In the police blotter from Hqs. Mayorga
INP, page number 117, Entry Number 904 dtd September 16, 1988 states that C2C
Teofilo Kempis PC presently assigned as Hqs Svc Coy, HRECOM 8, reported to this
station that he shot to death one alyas Lolito Rivero of an unknown resident
(sic) at Brgy Talisay, Mayorga, Leyte at more or less 3:00 o’clock in the
afternoon of September 16, 1988. Said
victim was known to be a suspect of some illegal activities (Kawat) on the said
Brgy. He also reported that his parents
were mistreated by said suspect. (Exh.
“P-1″)”^[30]

it is quite evident that the accused
himself was the informant. The trial
court found that Entry No. 904, referred to in Exhibit “1”, and Entry
No. 905 in the Mayorga police blotter, do not state when Lolito Rivero was shot
by the accused. Thereupon, on the basis
of the testimonies of the witnesses for the prosecution, it concluded that the
incident did in fact occur on 15 September 1988. The court’s careful analysis reads:

“x x x While both
entries 904 & 905 were entered on September 16, 1988, the accused who reported the killing of Lolito
Rivero did not reveal in said entry No. 904 the exact date of the killing but
the entry just stated that accused killed somebody at Bgy. TaIisay, Mayorga,
Leyte. The victim was Lolito
Rivero. He also reported that his
parents were maltreated by the said victim. The accused did not mention the date of the killing. To the mind of the Court, the date September
16, 1988 is the date accused reported the incident but not the date Lolito
Rivero was killed which was on September 15, 1988. Again, as to Entry No. 905 reported by Corazon de Paz Catanoy,
the exact date of the incident was not also given by her. The entry only states: ‘September 1988’, no day was mentioned by
Corazon de Paz Catanoy as she left immediately after reporting the incident.

These entries Nos. 904 & 905 which are dated September 16, 1988
were used by the defense to destroy the credibility of the testimonies of
prosecution witnesses Rosalina Adonis, Urbano Adonis and Carmen Navarro as to
the real date of the incident as the incident happened on September 15, 1988,
which testimonies the Court lends full faith and credence as these prosecution
witnesses testified in a clear, concise and straight-forward manner and the Court
finds no infirmity in their testimonies at the trial. The records of this case showed ample proof at the investigation
made of these prosecution witnesses at the Headquarters, PC/INP Regional
Command 8, Office of the Regional Inspector dated December 13, 1988 conducted
at Camp September 21st movement at Palo, Leyte which showed from the affidavits
of these prosecution witness (sic) that the killing of Lolito Rivero happened
on ‘September, 1988 15, 1500H’ meaning to say in military parlance as September
15, 1988 at 3:00 o’clock in the afternoon, which date dovetails with the
declarations of the prosecution witnesses.”^[31]

Then too, We find it rather strange that the accused merely assails
the testimonies of Rosalina Adonis and Carmen Navarro only insofar as the date
of the commission of the crime is concerned. He seems to have forgotten that two (2) other prosecution witnesses,
namely Urbano Adonis^[32]
and Pascual Vega,^[33]
the latter being the Municipal Mayor of Mayorga at that time and who considers
the accused as his grandson — a claim not even rebutted by the latter —
collaborated the testimonies of Rosalina and Carmen. Accused further failed to remember that in his motion for reconsideration,^[34]
he attempted to assail Urbano’s testimony and place Urbano himself in the same
category as Rosalina and Carmen. Thus:

“Finally, and at the hazard of seeking a new trial, Rosalina
Adonis, Urbano Adonis, and Carmen Navarro perjured themselves in open court by
testifying that the incident took place on September 15, 1988.”^[35]

The accused’s deafening silence in his Brief as regards Urbano’s
declaration signifies nothing less than the recanting of his previous
imputation that Urbano had likewise perjured himself.

In an effort to save his theory that Lolito Rivero was shot on 16
September 1988, the accused now faults the trial court, by way of his fourth
assigned error, for not giving him the opportunity to present the death
certificate of the deceased Lolito Rivero, or at least consider the same in its
decision. He asseverates that this
certificate indicates that Lolito Rivero died on 16 September 1988. This claim is unfounded. Neither the records of the case nor the
transcripts of the stenographic notes reveal that at any time before the case
was submitted for decision, counsel for the accused had sought to offer in
evidence the said death certificate or compel its production by compulsory
process. It was only in his motion for
the reconsideration of the adverse decision that he referred to the death
certificate, attaching to the said motion a hardly legible photocopy thereof as
Annex “A”.^[36]
A motion for reconsideration is not the proper procedural remedy for such a
purpose. Hence, the same was correctly
rejected by the trial court. This
disposes of the fourth assigned error.

Coming back to the second assigned error, We find the three (3)
grounds invoked in support thereof to be without any merit. In the first place, while it may be true
that the trial court should not have taken into consideration that portion of
the Investigation Report of the Office of the Regional Inspector (PC/INP
Regional Command 8), which is not included in Exhibit “1”, to bolster
its conclusion that the incident in question did in fact occur on 15 September
1988, such an erroneous recourse did not in any way affect the veracity of its
findings which were based principally on the testimonies of the witnesses given
in open court and subjected to rigorous scrutiny during cross-examination by
counsel for the accused. We, of course,
agree with the accused that since only a portion thereof, Exhibit
“1”, was offered in evidence, the trial court should not have taken
the rest into account in the formulation of its conclusions. Section 17, Rule 132 of the Revised Rules of
Court provides:

“SEC. 17. When part
of transaction, writing or record given in evidence, the remainder admissible. — When part of an act, declaration, conversation, writing or record is
given in evidence by one party, the whole of the same subject may be inquired
into by the other, and when a detached act, declaration, conversation, writing
or record is given in evidence, any other act, declaration, conversation,
writing or record necessary to its understanding may also be given in
evidence. (11a)”

Thus, in order that the rest of the
Investigation Report may have been considered by the trial court, the
prosecution should have offered the same in evidence^[37]
or moved that the entire document be received in evidence.^[38]
It bears stressing at this point that the Report attached to the records of
Criminal Case No. 841 is only an uncertified plain copy which is actually
annexed to an Order of the Provincial Prosecutor dated 31 March 1989.^[39]
This Order was not identified or offered in evidence. How it found its way into the records of the case was never
explained. Hence, the trial court
cannot even take judicial notice thereof. Nevertheless, as stated above, this error was of no consequence.

In the second place, the claim of an alleged restriction on the
cross-examination of the prosecution witnesses is unfounded. A valid objection was interposed by the
prosecutor on the ground of relevancy or materiality. After the court had sustained the objection, counsel for the
accused did not further press his point. He did not even ask for a reconsideration of the ruling.

It having been conclusively established that the incident in
question actually took place on 15 September 1988, accused’s first defense of
alibi may be appropriately looked into. Unfortunately, however, this defense provides him no relief. Prosecution witnesses Rosalina Adonis,
Carmen Navarro and Urbano Adonis all saw him at the scene of the crime at the
time of the killing. In fact, the first
two were eyewitnesses to the actual shooting. Moreover, the accused further failed to prove that it was physically
impossible for him to have been at the scene of the crime at the time the crime
was committed. It is a fundamental
juridical dictum that the defense of alibi cannot prevail over the positive
identification of the accused.^[40]
For it to prosper, it is not enough that an accused show that he was somewhere
else when the crime was committed; he must, more importantly, demonstrate that
it was physically impossible for him to have been at the scene of the crime.^[41]
In the instant case, the trial court found that Barangay Cabacungan, Dulag,
Leyte — the place where the accused claims to have stayed in the afternoon of
15 September 1988 — is only a few kilometers from Barangay Talisay, Mayorga,
Leyte, the place where Lolito Rivero was killed. The municipalities of Dulag and Mayorga adjoin each other;
considering that the accused has a motorcycle, it was then not physically
impossible for him to have been in Talisay at the time of the killing.

The accused’s second defense — based on the theory that the
incident occurred on 16 September 1988 — was erroneously considered by the
trial court as self-defense. As earlier
noted, however, the accused, via the manifestation of his counsel, had offered
his oral testimony “to show that the incident happened under circumstances
that could exempt or mitigate” his liability.^[42]
In other words, it would seem that the accused himself is not convinced that he
had acted in self-defense. The
exempting circumstance alluded to could, at most, be that prescribed in
paragraph 4, Article 12 of the Revised Penal Code, viz.:

x x x

“4.   Any person who, while performing a lawful act
with due care, causes an injury by mere accident without fault or intention of
causing it.”

He claims that the trigger of his M-16 Armalite rifle “was
accidentally pulled” by him while he and the victim were grappling for the
possession of the said weapon. Thus:

“ATTY. TABAO:

Q    Mr.
Kempis, what was the purpose in your going to the house of Lolito Rivero?

A     My
purpose was to advise him that he should not be stealing and challenging people
to a fight, because he is causing trouble to other persons.

Q    When
Corazon de Paz told you that Lolito Rivero was at the kitchen, what if anything
did you do?

A     I
called Lolito Rivero to come out to the yard and Lolito Rivero came near, so I
said to him: ‘You, Lolito, do not steal
again and do not be challenging people because you are causing them trouble.’

Q    After
telling Lolito Rivero, what did he say in reply?

A     He
said: ‘I will not steal anymore, sir,
because I have just been released from jail,’ and so I said: ‘Thank you.’ Then when I turned my back he
immediately grabbed my M-16 because at that time I was carrying my M-16.

Q    Where
was your M-16 located at that very moment?

A     It
was slung on my left shoulder.

Q    Now,
after Lolito Rivero grabbed your M-­16 rifle, what happened?

A     We
grappled for the possession of the gun and in the process both of us fell down.

Q    Now,
after both of you fell down, what if anything happened?

A     The
trigger of the gun was accidentally pulled.

Q    Now,
who was hit after the trigger of the M16 was pulled?

A     He
was the one hit because I was holding the gun by the trigger, while he was holding
the muzzle portion.

Q    How
many shots were fired accidentally?

A     Three
(3) successive shots.”^[43]
(underscoring supplied for emphasis).

This allegation of an accidental pulling of the weapon’s trigger
hardly deserves even the most liberal or sympathetic consideration. As aptly observed by the trial court, the
accused is a “trained soldier”^[44]
while the victim was “defenseless x x x who x x x was not even armed with
a bolo or any weapon and, x x x untrained x x x in firearms x x x.”^[45]
The characterization by the court of the victim was not even rebutted by the
accused in his Brief. And even if We
are to assume, for the sake of argument, that the victim did grab the weapon
which was then slung over the accused’s left shoulder, the latter — if indeed
he did not have murder in his heart — could have easily warded off the hand of
the victim which was allegedly only holding the muzzle of the rifle. Instead of taking this defensive posture,
however, the accused held on to the trigger, thereby manifesting an unequivocal
intent to fire the gun. Furthermore, if
indeed he had realized that the trigger was accidentally pulled, he,
being a trained soldier, could have easily stopped the firing to prevent
further injury to the victim, who was then already lying on the ground. Yet, the accused did not stop firing; as a
result, the victim sustained five (5) gunshot wounds. The transcript of the stenographic notes of the accused’s
testimony partly records these facts, thus:

“COURT:

It is a fact that he
pulled the trigger because he was holding the trigger portion, while the victim
was holding the muzzle.

Let him answer.

WITNESS:

A     That
is true, because when he grabbed my gun, we grappled and he was able to hold
the middle portion of the gun, while I was able to hold the handle or trigger
portion and in the process of grappling I was already on top of him and that
was when the trigger was accidentally pulled.

PROS. MERIN:

Q    What
was the position of the victim at that time when you were able to shoot him?

A     Laying
(sic) on the ground.

Q    You
mean you were standing up?

A     Not
yet, we were still grappling and both of us were still on the ground.

Q    That
means both of you were still on the ground when the three shots were made that
hit the victim?

A     Yes,
we were still laying (sic) on the ground.

Q    On
the first shot, which portion of the body of the victim was hit?

A     I
was not sure what part of his body because I was apprehensive as I was fighting
for my life.

Q    How
about the second shot, which portion of the body of the victim was it?

A     I
was not able to clearly take note.

Q    But
it is a fact now that it was the victim who was only hit?

A     Yes,
sir.

Q    And
he was hit while he was on the ground?

A     He
was hit while He was still on the ground and while I was also still on the
ground.”^[46]

Finally, by his own Exhibit “1”, it is quite obvious
that the accused was not inspired by any noble mission as he sought the victim
out in the afternoon of 15 September 1988 (or, as per his account, 16 September
1988). The accused’s purpose in looking
for the victim was to confront the latter for his alleged “illegal
activities” and to avenge the wrong he had done to the accused’s
parents. Per said Exhibit
“1”, the accused reported to the Mayorga police station that
“his parents were mistreated” by the victim. As this Court sees it, the accused wanted to
impress upon the victim that he (accused) can enforce the law by himself and
exact punishment for infractions thereof without recourse to the proper
authorities. If his purpose in visiting
the victim was merely:

“A x x x to advise him that he should not be stealing
and challenging people to a fight, because he is causing trouble to other
persons.”^[47]

it was not necessary for him to have
brought a deadly weapon.

It is to be noted here that the accused does not even assign as
an error in his Brief the trial court’s alleged failure to appreciate in his
favor the exempting circumstance which he had manifested immediately before
testifying on direct examination, or consider his plea of
“self-defense.” He realizes only too well the futility of their
invocation.

The trial court ruled that treachery attended the killing of
Lolito Rivero; hence, the accused is guilty of Murder as defined and penalized
in Article 248 of the Revised Penal Code. We agree. Lolito Rivero was
unarmed. The attack was sudden,
unprovoked, unexpected and done in a manner which directly and specially
insured the execution of the act without any risk to the accused arising from
the defense which the victim, then unarmed, may have made.^[48]

No mitigating circumstance has been duly proven or even invoked
in the appeal. The appealed decision
must perforce be affirmed, except as to the indemnity which must be increased
to P50,000.00 in accordance with the prevailing jurisprudence.

WHEREFORE, the appealed decision in Criminal Case No. 841
of Branch 10 of the Regional Trial Court of the Eighth Judicial Region is
hereby AFFIRMED with the modification as to the indemnity, which is hereby
increased to P50,000.00.

Costs against the accused.

SO ORDERED.

Feliciano, (Chairman), Bidin, Romero, and Melo, JJ., concur.

---

^[1]
Original Records (OR), 109-135; Rollo, 8-34. Per Judge Josephine K. Bayona.

^[2]
Id., 135; Id., 34.

^[3]
OR, 2-8. The copy attached to the
records is not an original copy but an uncertified plain copy.

^[4]
Id., 1.

^[5]
OR, 33.

^[6]
Rosalina Adonis, Urbano Adonis, Pascual Vega, Carmen Navarro, Dionisio Capiyoc,
Pfc. Naomi Cristino and Dr. Felipe Bugho, Jr.

^[7]
Francisca Riñosa, Antonio Varona, Dominador Kempis, P/Sgt. Alipio Lagahit, Pfc.
Renato Canaleja and Corazon de Paz Catanoy (the common-law wife of the victim).

^[8]
Rollo, 78, et seq.

^[9]
Brief for Appellee, 2-3.

^[10]
TSN, 23 February 1990, 3.

^[11]
Rollo, 55, et. seq.

^[12]
Brief for the Accused, 3-4.

^[13]
TSN, 23 February 1990, 4.

^[14]
Id.

^[15]
TSN, 4 January 1990, 3-5.

^[16]
Rollo, 100-101.

^[17]
Id., 101.

^[18]
Id., 102.

^[19]
OR, 137-142.

^[20]
Id., 146-148.

^[21]
Id., 149-151.

^[22]
Id., 152.

^[23]
Rollo, 55, et seq.

^[24]
OR, 7.

^[25]
Brief for the Accused, 12.

^[26]
People vs. Garcia, 89 SCRA 440 [1979]; People vs. Bautista, 92
SCRA 465 [1979]; People vs. Abejuela, 92 SCRA 503 [1979]; People vs.
Pido, 200 SCRA 45 [1991].

^[27]
People vs. Cabiling, 74 SCRA 285 [1976]; People vs. Marcina, 77
SCRA 238 [1977]; People vs. Sanchez, 199 SCRA 414 [1991].

^[28]
People vs. Gonzaga, 77 SCRA 140 [1977]; People vs. Oñate, 78 SCRA
43 [1977]; People vs. Ramos, 167 SCRA 476 [1988]; People vs.
Payumo, 187 SCRA 64 [1990].

^[29]
OR, 2-8.

^[30]
OR, 7.

^[31]
OR, 128-129.

^[32]
TSN, 15 June 1989, 23-36.

^[33]
TSN, 29 June 1989, 1-13.

^[34]
OR, op. cit., 137-142.

^[35]
OR, 140.

^[36]
Id., 143.

^[37]
Santiago vs. Santos, 48 Phil. 567 [1925]; Orient Insurance Co. vs.
RevilIa, 54 Phil. 919 [1930].

^[38]
Matias vs. Alvarez, 10 Phil. 398 [1908].

^[39]
OR, unpaginated pages preceding page 2.

^[40]
People vs. Mercado, 97 SCRA 232 [1980]; People vs. Clores, 184
SCRA 638 [1990]; People vs. Arceo, 187 SCRA 265 [1990].

^[41]
People vs. Brioso, 37 SCRA 336 [1971]; People vs. Diaz, 55 SCRA
178 [1974]; People vs. Baylon, 57 SCRA 114 [1974]; People vs.
Salazar, 58 SCRA 467 [1974]; People vs. de Guzman, 194 SCRA 618 [1991].

^[42]
TSN, 23 February 1990, 3.

^[43]
TSN, 23 February 1990, 6-7.

^[44]
OR,133-134.

^[45]
Id.

^[46]
TSN, 23 February 1990, 14-15.

^[47]
Id., 6.

^[48]
Article 14(16), Revised Penal Code; People vs. Ducusin, 53 Phil. 280
[1929]; People vs. Tumaob, 83 Phil. 738 [1949]; People vs.
Maravilla, Jr., 167 SCRA 645 [1988]; People vs. Batas, 176 SCRA 46
[1989]; People vs. Cempron, 187 SCRA 248 [1990].