THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROGER LLABRES Y ADVINCULA, ACCUSED-APPELLANT.

The appellant was charged
in separate informations with murder, frustrated homicide and attempted
homicide.^[1] He invoked self-defense. The Regional Trial Court of Quezon City did
not believe him and convicted him on all counts. We shall affirm.

A plea of self-defense
transfers the burden of proof to the accused.^[2] Having admitted the offense imputed to him,
he must show that his acts were justified under the law. The appellant in the case at bar failed to
do this.

The prosecution showed that at about eleven o’clock in the
morning of August 23, 1984, a group consisting of Roland Yap, Enrique Paras,
Santos Origenes, Victor Lim, Generoso Tumulac, Jr., and Dominador Sobroso went
to the Egg and Eye Restaurant in Quezon City. Roger A. Llabres, who was working there as a security guard, did not
allow them to enter because the restaurant was already closed. Yap asked Llabres to let them in anyway as
he was a regular customer. Llabres
refused. A heated argument followed,
leading to a near-fist fight which was defused when Paras intervened. He persuaded Yap to just leave with
them. The group then proceeded to the
waiting shed about 10 meters away to wait for a taxi. Llabres entered the restaurant.^[3]

After about five minutes, the group heard somebody behind them
shout, “Putang ina ninyo!” Without looking back, Yap retorted,
“Putang ina n’yo rin!” Suddenly, Llabres attacked Yap with a
bolo. Yap fell but Llabres continued
hacking him even when he was already on the ground. When Paras sought to wrest the bolo, Llabres turned on him,
wounding him in the forehead and his left wrist. Llabres next attacked Origenes, hitting the latter’s left arm,
right armpit and right thigh. Lim moved
to help his companions, but he was hit in the mouth when some seven or eight
men armed with bolos came out of the restaurant and started throwing bottles at
them. It was at this point that they
fled, leaving the fallen Yap behind.^[4]

Llabres had a different story. He says that in the evening of August 23,
1984, Yap and Paras went to the Egg and Eye Restaurant, where he was working as
a security guard. As they were leaving
at 1 o’clock in the morning, one of the waitresses asked him to detain them
because they had not yet paid their bill. The bill was finally settled with the restaurant manager. Yap, still resentful, coldly told the
waitress to “eat the change.”^[5]

But that was not the end of the incident. Yap and Paras came back after thirty minutes
with five other men. They all had
bolos. Yap told him to call the manager
immediately or he himself would be killed. Llabres’s reaction was to run to the waiting shed as he was not carrying
his gun. But the group followed and
then surrounded him. Yap made a stab at
him with his bolo, but Llabres was able to parry the thrust and to wrest the
weapon. Yap stepped back and pulled a
kitchen knife but before he could use it, Llabres fell upon him with the bolo
and continued hacking him. He also
defended himself from Paras and Origenes when they tried to help Yap.^[6]

Llabres later surrendered to the police and admitted hacking the
three victims. He also turned over the
bolo he had used in attacking them.^[7]

Yap died as a result of shock and massive hemorrhage. The autopsy revealed that he had sustained
21 wounds in all, 10 hack wounds and 2 incised wounds at the back and 8 hack wounds and 1 incised wound in the front of
his body.^[8] Paras suffered 3 hack wounds on the
forehead, left cheek and left forearm and a fracture on the
forehead. He was hospitalized for 3
days. Dr. Ernesto Brion, who treated
him, testified that Paras could have died from his wounds without timely
medical attention.^[9] Origenes had hack wounds on the back, knee,
right thigh and palms, but Dr. Brion was not sure the wounds would have been
fatal if not treated immediately.^[10] Lim’s injury was a laceration in his upper lip.^[11]

After trial, Judge Rodolfo A. Ortiz rendered judgment dated
January 30, 1985, disposing as follows:

1.      Convicting
the accused ROGER LLABRES y ADVINCULA, in Criminal Case No. Q-35261 beyond
reasonable doubt as principal of the crime of Frustrated Homicide charged in
the information, as defined and penalized in Article 249, in relation to
Article 50, of the Revised Penal Code, and in accordance therewith, taking into
consideration the provisions of the Indeterminate Sentence Law, there being no
aggravating or mitigating circumstances which attended the commission of the
offense, the said accused is sentenced to an indeterminate penalty of
imprisonment of from FOUR (4) YEARS and TWO (2) MONTHS of prision correccional
in its medium period, as the minimum, to TEN (10) YEARS of prision mayor
in its medium period, as the maximum, with all the accessory penalties provided
for by law; to indemnify the private offended party, Enrique Paras y Yap, the
amount of P10,000.00 for hospitalization and medical expenses, and to pay the
costs.

2.     
Convicting the accused ROGER LLABRES Y ADVINCULA, in Criminal
Case No. Q-35262 beyond reasonable doubt as principal of the crime of Attempted
Homicide charged in the information, as defined and penalized in Article 249,
in relation to Article 51, of the Revised Penal Code, and in accordance
therewith, taking into consideration the provisions of the Indeterminate
Sentence Law, there being no aggravating or mitigating circumstances which
attended the commission of the offense, the said accused is sentenced to an
indeterminate penalty of imprisonment of from FOUR (4) MONTHS of arresto
mayor in its medium period, as the minimum, to FOUR (4) YEARS and TWO
(2) MONTHS of prision correccional in its medium period, as the
maximum, with all the accessory penalties provided for by law; to indemnify the
private offended party, Santos Origenes y Garay, the amount of P7,000.00 for
hospitalization expenses, and to pay the costs.

3.     
Convicting the accused ROGER LLABRES y ADVINCULA, in Criminal
Case No. Q-35263 beyond reasonable doubt as principal of the crime of Murder
charged in the information, as defined and penalized in Article 248 of the
Revised Penal Code, and in accordance therewith, the commission of the offense
having been attended by the aggravating circumstance of cruelty which is offset
by the mitigating circumstance of voluntary surrender; the said accused is
sentenced to suffer reclusion perpetua, with all the accessory
penalties provided for by law; to indemnify the heirs of Roland Yap y Barrera
the sums of: P30,000.00, as compensatory damages; P150,000.00, for funeral,
interment, and memorial expenses; and P200,000.00, by way of moral damages, and
to pay the costs.

The question in this
appeal is one of credibility. We will
decide it as the trial court did, in favor of the prosecution.

The appellant’s version
is an improbable tale. He would have us
believe that eight men with intent to kill, and all armed with bolos for the
purpose, ganged up on him that night. He himself was unarmed, but he was able to snatch Yap’s bolo. Single-handed, he fought off his attackers,
all eight of them, inflicting fatal wounds on Yap, nearly killing Paras, and
also wounding Origenes. The armed men
finally fled in fear.

Here is a veritable Rambo straight from the movies. Unarmed at first, he repulsed eight armed
men determined to kill him, each carrying a bolo, not to mention the kitchen
knife Yap drew when the appellant snatched his bolo. Surprisingly, all of them hardly touched Llabres, who in the end killed
one of them, nearly killed another, and wounded two others.

No one corroborated
Llabres. Investigators found no kitchen
knife at the scene of the crime.^[12]

Under the first paragraph
of Article 11 of the Revised Penal Code, a plea of self-defense will prosper
only when it is shown that there was: (a) unlawful aggression on the part of
the victim; (b) reasonable necessity of the means employed by the accused to prevent or repel such unlawful aggression; and (c) lack of sufficient
provocation on the part of the person defending himself. These circumstances must concur.

Only Llabres testified that it was Yap who began the aggression,
and there is no corroboration either of his claim that he offered no
provocation. The appellant’s testimony
was disbelieved by the trial court, which chose to give credence to Victor Lim
and Enrique Paras, the eyewitnesses for the prosecution, who gave a different
report of the incident.

Assuming there was unlawful aggression on the part of Yap, the
Court nevertheless cannot accept that there was a reasonable necessity for the
means employed by Llabres to prevent or repel such aggression. Yap was struck twenty-one times. He had 12 wounds in the back and 9 wounds in the front
of his body. By Llabres’s own admission,
he kept hacking at Yap even when his victim was already helpless on the ground.^[13]
The number of wounds alone, let alone their nature, shows all too clearly that
Llabres was not merely defending himself but needlessly striking at an already
dying person.

The defense faults the prosecution for not presenting Origenes
and deduces sinister motives from this omission. It is the prerogative of each party to choose its own witnesses
in accordance with its own assessment of the evidence it needs to prove its
case. We do not find that the
non-presentation of Origenes has weakened the prosecution. If the defense felt that Origenes could
support its own cause, there was nothing to prevent it from calling him as its
own witness.

The trial court correctly appreciated the qualifying circumstance
of treachery in the murder of Yap, who was suddenly attacked from behind and
sustained eleven hack wounds in the back. Even if Yap did hear
Llabres shout, “Putang ina ninyo!” the expletive was not sufficient
warning that his life was in danger and that he would be suddenly attacked with
a bolo. Judge Ortiz was also correct in
rejecting the aggravating circumstance of evident premeditation. By the prosecution’s own account, only five minutes elapsed from the time Llabres entered
the restaurant until he reappeared to attack Yap and his companions.

But it was not correct to
consider against the appellant the aggravating circumstance of cruelty. According to Article 14 (21) of the Revised Penal Code, there is cruelty when the wrong done in the commission of the crime is
deliberately augmented by causing another wrong which is not necessary for its
commission. This has not been shown in
the case at bar. Llabres did not
deliberately prolong the physical suffering of his victim; on the contrary, his
repeated blows show that he intended to kill Yap as soon as he could.

Llabres is, of course, entitled to the mitigating circumstance of
voluntary surrender in all the three cases.

Article 64 of the Revised Penal Code pertinently provides:

Article 64. Rules for the application of penalties which contain three periods. – In cases in which the penalties
prescribed by law contain three periods, whether it be a single divisible
penalty or composed of three different penalties, each one of which forms a
period in accordance with the provisions of Articles 76 and 77, the court shall
observe for the application of the penalty the following rules, according to
whether there are or are not mitigating or aggravating circumstances:

x x x

2.    When only a mitigating
circumstance is present in the commission of the act, they shall impose the
penalty in its minimum period.”

The penalty for murder is reclusion
temporal in its maximum
period to death. In Criminal Case No.
Q-35263, therefore, in view of the
mitigating circumstance of voluntary surrender and the absence of any
aggravating circumstance, the appropriate penalty is the indeterminate sentence
of from ten (10) years and six (6) months of prision mayor, as
minimum, to seventeen (17) years and four (4) months of reclusion temporal, as
maximum.

The trial court erred in not appreciating the mitigating
circumstance of voluntary surrender in Criminal Case No. Q-35261 and No.
Q-35262.

There being no aggravating circumstance in both cases, and
applying Article 64 in connection with Articles 50 and 51 of the Revised Penal
Code, as well as Section 1 of
the Indeterminate Sentence Law (RA 4103, as amended), we hereby impose on the
appellant in Criminal Case No. Q-35261 the indeterminate sentence of from two
(2) years and four (4) months of prision
correccional, as minimum, to
six (6) years and four (4) months of prision
mayor, as maximum, and in
Criminal Case No. Q-35262, the indeterminate sentence of from two (2) months of
arresto mayor, as minimum, to one (1)year
and two (2) months, of prision
correccional, as maximum.

The awards in Criminal
Case No. Q-35263 are hereby reduced to P50,000.00 in keeping with the present
policy of the Court.

WHEREFORE, premises considered, the appealed decision
is AFFIRMED as above modified and the appeal is DISMISSED.

SO ORDERED.

Griño-Aquino, Davide, Jr., Bellosillo, and Quiason, JJ., concur.

^[1]
Rollo, p. 4; Records, pp. 2, 122.

^[2]
People v. Nomat, Sr., 211 SCRA 14 (1992).

^[3]
TSN, November 12, 1984, pp. 3-4.

^[4]
Ibid., pp. 4-7.

^[5]
TSN, January 2,1985, pp. 4-6.

^[6]
Ibid., pp. 6-12.

^[7]
TSN, November 14, 1984, p. 10; id.,
p. 13.

^[8]
Exhibits “F” and “F-1;” Records, pp. 49-50.

^[9]
TSN, November 13, 1984, pp. 3-5.

^[10]
Ibid., pp. 5-6,
8.

^[11]
Exhibit “P;” Records, p. 63.

^[12]
Records, p.107.

^[13]
TSN, January 2, 1985, p. 27.