PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MERLO RAMIREZ, ACCUSED-APPELLANT.

In the late afternoon of
June 23, 1981, at Tayug, Pangasinan, Merlo Ramirez, a sergeant of the 151st PC
Company headquartered at that place, fired his pistol at former Vice Mayor
Aureo (“Alo”) Zaragoza III four (4) times. All four shots found their mark in various parts of the latter’s
body and resulted in his death within two (2) hours. The autopsy report of the Senior Resident Physician of the
Eastern Pangasinan General Hospital, Dr. Felipe Cantor,^[1] set
out the cause of death as, “Massive intra-thoracic and intra abdominal
hemorrhage due to gunshot wounds, right side chest macerating the right lobe of
the liver and penetrating the right kidney,” and included the following
remarks, “Patient arrived at the hospital in shock and with marked pallor
pulseless, BP – 0/0 Patient expired one hour 15 mins. after arrival in the
hospital inspite of all heroic and remedial measures done.” On the same
occasion, Ramirez also allegedly shot at another person, Rogelio Robosa, but
failed to hit him.

Ramirez was thereafter
charged with consummated and attempted murder in the Regional Trial Court of
Pangasinan,^[2] under separate indictments.^[3] On arraignment, he entered pleas of
not guilty to both offenses. The cases
were consolidated, and tried and decided jointly.^[4] The Trial Court’s judgment, dated August 12,
1987,^[5] rejected Merlo Ramirez’s claim of
self-defense, pronounced him guilty beyond reasonable doubt of both the crimes
ascribed to him, and declared him to be criminally and civilly liable therefor
as follows:

“PREMISES CONSIDERED, this Court is of the opinion and so holds that the accused Merlo Ramirez
is proven guilty beyond reasonable doubt of the crime of Murder committed
against the victim, defined and penalized by Article 248 of the Revised Penal
Code and taking into consideration the concurrence of the aggravating
circumstance of evident premeditation and there being no mitigating
circumstance to offset the same the imposable penalty should be death. HOWEVER, with the abolition of capital
punishment under the new constitution (Sec. 19, Article III), the Court hereby
sentences the accused to suffer the penalty of RECLUSION PERPETUA and to
indemnify the heirs of the deceased in the sum of P57,700.00 and to pay the costs.

Likewise, the Court finds accused proven GUILTY beyond reasonable
doubt of the crime of Attempted Murder against Rogelio Robosa, penalized by
Art. 284 in relation to Art. 6, paragraph 3 of the Revised Penal Code (and)
applying the provisions of the Indeterminate Sentence Law, the Court hereby
SENTENCES said accused to suffer an Indeterminate penalty of TWO (2) YEARS, TEN
(10) MONTHS AND TWENTY (20) DAYS of prision correccional as minimum to EIGHT
(8) YEARS AND TWENTY (20) DAYS of prision mayor as maximum.”

From this joint judgment,
Ramirez has appealed to this Court; and here, he attributes to the Trial Court
the following errors:

1) disregarding his evidence of self-defense, and in the process,

2) imposing its own surmises and conjectures;

3) not considering his testimony in relation to his sworn
statement executed immediately after the incident, relating exactly what
happened;

4) giving credence to the palpably perjured testimonies of
prosecution witnesses Arestado and Robosa;

5) finding him guilty of attempted murder on the basis of the
perjured testimonies of Arestado and Robosa.

The basic issue, in fine,
is whether or not the evidence of the prosecution, in relation to that of the
defense, does indeed prove the guilt of Merlo Ramirez of the felonies with
which he is charged, or show that his acts are justified, having been done in
legitimate self-defense. Stated
otherwise, the ultimate question is which set of witnesses is more deserving of
credit, that of the prosecution or the defense.

It is not disputed that
the shooting was preceded by a conversation between Sgt. Ramirez and Alo
Zaragoza at the “Express Lounge and Restaurant” in Tayug. The conversation took place at a table in an
interior room of the restaurant. Also
seated at the same table were Ramirez’s companion, PC Sgt. Espero, “Boy”
Mamenta, a court employee, and two local police officers, Patrolmen Carbonel
and Castulo. At another table in the
main dining area outside the room were two other acquaintances, Rogelio Robosa
and Antonio Arestado, who both could see the group through the
doorway.^[6] Apparently, the conversation dealt with the
setting up of a “jueteng” gambling
operation in the town, although it is not clear who precisely was making the
proposal. What is certain is that Alo
Zaragoza very shortly became agitated and stood up, angrily uttering some words
and pounding the table with his hand. Ramirez also stood up and walked away from the table, towards the
comfort room. A few minutes
afterwards, Zaragoza also walked out of the room. From this point, there is disagreement between the prosecution and
the defense as to the ensuing events.

The evidence of the prosecution tends to show that after leaving
the room, Zaragoza stopped between two tables in the main eating area and there
paused to drink beer from the mug he was holding; that it was at this point,
while he was standing, head up, pouring beer down his throat, that Ramirez
suddenly reappeared and fired three (3) successive shots at Zaragoza with a
hand gun; that Rogelio Robosa grabbed Ramirez from behind to stop him from
firing more shots, but Ramirez was able to squeeze off one more shot at
Zaragoza; that Ramirez wrenched himself free of Robosa’s embrace and this
somehow caused Robosa to be thrown to the floor, and the pistol to slip from
Ramirez’s hand; that, however, Ramirez quickly retrieved his gun and fired at
Robosa as Robosa was rising from the floor; and that Ramirez thereupon fled
from the restaurant, followed by Sgt. Espero. Zaragoza, who had been hit by all four (4) shots discharged at him,
managed to walk to the restaurant’s kitchen where Robosa found him moments
later, on the floor, being assisted by Castulo. He was rushed to the hospital, but expired an hour or so after
arriving there.

Ramirez’s version is different. It was Zaragoza who suggested the setting up of the jueteng
operation. When the suggestion was
made, Ramirez simply said that he was a mere NCO operation officer, and that
the proposal should be made to people higher up. For some reason the remark incensed Zaragoza. In a loud voice, he said, “No more jueteng,
jueteng,” slapping the table with the palm of his hand. Pointing a finger at Ramirez, he added, “Okinnam,
ado ti basol mon ditoy Tayug, ket no kayat ko nga mapukaw ka, mapukaw ka”
(which the Trial Court translated as follows: “Vulva of your mother, you have so many faults already here in Tayug and
if I want you to disappear, you will disappear”). Then, turning to his companion, Pat. Castulo, and extending his
hand to him, Zaragoza said, “Man to paltog mo, Condring, to paltogak”
(meaning, according to the Court: “Give
me your gun, Condring, as I will shoot him”). To avoid trouble, Ramirez abruptly bade the group goodbye and went to
the counter to pay his bill, but seeing no one there, moved towards the
toilet. On his way out, Pat. Carbonel
held him by the waist and asked him to go home directly as “Don Alo” (Zaragoza)
was very angry. Ramirez shoved Carbonel
away, causing him to fall. As he was
walking towards the door, he saw Zaragoza emerge from the inner room, cursing
him and saying, “I am going to kill you.” Because of Zaragoza’s earlier threat
to shoot him, and fearing that he had indeed succeeded in getting Pat.
Castulo’s firearm, Ramirez drew his gun and started shooting at Zaragoza while
making his way towards the exit.

Upon the foregoing set of facts, Ramirez’s lawyer, Atty. Bernardo
Ligsay, argues that Ramirez should be exonerated because he had acted under a
mistake of fact — in the not unreasonable belief that Zaragoza was going to shoot
him.^[7]
Atty. Ligsay adds that Ramirez had acted reflexively, in obedience to the
instinct of self-preservation, and in his brief invokes “People v. Tarlit
(‘76 O.G. 4490, p. 821’)” allegedly to the effect that: “In emergencies where the person or life of
another is imperilled, human nature does not act upon formal reason but in
obedience to the instinct of self-­preservation.”^[8] Atty.
Ligsay omits to mention, however, that Tarlit –­ whose citation should
correctly read, “76 O.G. No. 26, pp. 4490” — is a decision of the Court of
Appeals, not of this Court; that the facts of that case are quite different
from those of the present case; and the legal principle predicated on those
facts quite inimical to his cause, as would have been immediately disclosed had
he but reproduced in full the paragraph from which he had taken the
statement quoted by him. The paragraph
reads in full as follows:^[9]

“In emergencies where the person or life of another is imperilled,
human nature does not act upon formal reason but in obedience to the instinct
of self-preservation. In a situation,
like the one at bar, where the deceased was taller, bigger and stronger than
the accused, the latter had to act fast
or otherwise the aggression on his person would have continued and his life
ended. There being no other means by
which accused-appellant could prevent or repel the unlawful aggression, he,
Tarlit had to use the very same weapon which wounded him (accused). There was a reasonable necessity for the
accused to use the said weapon because he was already losing strength and could
not run due to loss of blood.”

Even conceding that Tarlit (a Court of Appeals decision)
is binding on this Court, it is at once evident that the ruling therein is
inapplicable to the case at bar. In Tarlit,
the accused was (1) actually attacked by the deceased; (2) said deceased was
taller, bigger and stronger than the accused; (3) the accused had been wounded
and was in fact already losing strength and could no longer run due to loss of
blood; and (4) he could no longer repel the aggression and would surely have
lost his life had he not used on the aggressor
the very same weapon by which he had been wounded by the latter. Not one
of these circumstances is present in the present case. Indeed, as shown the proofs of both the
prosecution and the defense, the victim, Zaragoza, had no gun or weapon of any
other sort when he emerged from the interior room. The State’s evidence is that at this time he was holding nothing
more intimidating than a glass of beer, and doing nothing more belligerent than
gulping down the beer while standing in the middle of the dining area.

It is contended by the defense that as Zaragoza emerged from the
inner room he was swearing at Ramirez and repeating the threat to kill
him. However, there is nothing but
Ramirez’s uncorroborated testimony to establish this; and it is belied by the
evidence of the prosecution. But even
conceding this, Ramirez’s cause would not be appreciably advanced. For in one instant Ramirez would quickly have
seen that Zaragoza bore no arms and was launching nothing more perilous than a
verbal onslaught.

In either case Zaragoza’s acts could not be deemed to constitute
unlawful aggression on his part, or to have placed Ramirez in an emergency
situation analogous to that in the Tarlit case cited by him. More to the point, to be sure, is the
precedent cited by the Trial Judge, People v. Macaso,^[10]
from which the following is quoted:

“ * * A review of the evidence fails to lend credence to the
accused-appellant’s claim that the deceased was the unlawful aggressor. He was not even armed at the time, while the
man he was up against was a policeman who was in possession of his service
pistol. * * * * True, the deceased
acted rather belligerently, arrogantly and menacingly at the accused-appellant,
but such behavior did not give rise to a situation that posed a real threat to
the life or safety of the accused-appellant. The peril to the latter’s life was not imminent and actual. To constitute unlawful aggression, it is
necessary that an attack or material aggression, an offensive act positively
determining the intent of the aggressor to cause injury, shall have been
made. A mere threatening or
intimidating attitude is not sufficient * * there must be a real danger to life
or personal safety.”

Ramirez however invokes, as above stated,^[11]
the familiar mistake-of-fact
doctrine enunciated
by this Court in U.S. v. Ah Chong^[12]
to exempt himself from criminal liability. Here again he relies on inapplicable precedent. In Ah
Chong, it will be
recalled the accused stabbed dead his friend and roommate in the mistaken
belief that the latter was a ladron, or burglar, attempting to force
entry into the room they commonly shared. The door of the room was secured only by a small hook or catch in lieu
of a permanent lock, a flimsy expedient which it was the occupants’ habit to
reinforce by putting a chair against the door. On the night in question the accused was awakened by the sound of someone
trying to force the door open. He called
out twice to the person to identify himself. Receiving no answer, he uttered the warning, “If you enter the room, I
will kill you.” It was at that moment that he was hit above the knee by the
chair that had been placed against the door. It could well be that the chair had merely been pushed back by the
opening of the door against which it rested; but thinking that he was being
attacked by the unknown intruder, the accused seized a kitchen knife kept under
his pillow and struck out blindly, hitting the latter who turned out to be his
roommate, and who later expired from his wounds. Now, the two had an understanding that whoever returned at night
should knock at the door and identify himself, and the Court found nothing to
explain — except as probably a practical joke — the victim’s failure to do so
on that occasion. It was upon these
facts that the Court reversed on appeal the conviction of the accused, holding
that he had acted ” ** in good faith, without malice or criminal intent, in the
belief that he was no more than exercising his legitimate right of
self-defense.”

There is however no semblance of any similarity or parallel
between the facts in Ah Chong and those of the present case, nothing
here that would have caused the accused-appellant, Ramirez, to entertain any
well-grounded fear of imminent danger to his life by reason of any real or
perceived unlawful aggression on the part of the victim, Zaragoza. Upon the evidence, at the time he was shot
and killed, the latter was doing nothing more hostile than drinking a bottle of
beer; if he had earlier cursed or threatened Ramirez, it was unaccompanied by
any overt act of bodily assault. There
was no unlawful aggression.

Absent this essential element of unlawful aggression on the part
of Zaragoza or, at the least, of circumstances that would engender a reasonable
belief thereof in the mind of Ramirez, any consideration of self-defense,
complete or incomplete, is of course entirely out of the question.^[13]

By and large, the Court is persuaded that the Trial Court’s basic
conclusion that Merlo Ramirez is criminally liable for the death of Aureo
Zaragoza is correct and that the defense has not demonstrated any serious or
reversible error therein.

The Court finds itself unable to agree, however, with the
conclusion that alevosia, as a circumstance qualifying the killing of
Zaragoza to murder, and evident premeditation, as a generic aggravating
circumstance, should be appreciated against Ramirez.

While Ramirez’s shooting of Zaragoza, was as regards, the latter,
sudden and unexpected and gave him no opportunity whatever to undertake any
form of defense or evasion, this does not necessarily justify a finding of
treachery or alevosia, absent any evidence that this mode of assault was
consciously and deliberately adopted to insure execution of the crime without
risk to the offender. Ramirez acted on
the impulse of the moment, rashly and not improbably, out of resentment, at
having been publicly cursed, insulted and threatened. Thus, on seeing Zaragoza come out of the room, Ramirez had
forthwith drawn his service pistol and begun to shoot at Zaragoza. As recently observed by this Court:^[14]

“Well settled is the rule that the circumstances which would
qualify a killing to murder must be proven as indubitably as the crime
itself. There must be a showing, first
and foremost, that the offender consciously and deliberately adopted the
particular means, methods and forms in
the execution of the crime which tended directly to insure such execution
without risk to himself. It does not
always follow that if the attack was sudden and unexpected, it should be deemed
attended with treachery.”

Neither may the aggravating circumstance of evident premeditation
be appreciated against the appellant in connection with either of the two
felonies with which he stands charged, because, as the Solicitor General correctly points out, “the determination
to commit the crime was ** almost on the spur of the moment where the appellant
had no opportunity to reflect on his action.” In People v. Molato,^[15]
this Court made the following relevant observation:

“As held in People v. Fernandez (154 SCRA 30 [1987]) citing People
v. Jardiniano (103 SCRA 530 [1981]) and People v. Guiapar (129 SCRA 539
[1984]), to properly appreciate evident premeditation, it is necessary to
establish proof, as clear as the evidence of the crime itself about – (1) the
time when the offender determined to commit the crime; (2) an act manifestly
indicating that the culprit had clung to his determination; and (3) a
sufficient lapse of time between the determination and the execution to allow
him to reflect. * * The element of
sufficient lapse of time between the determination and the execution of the criminal act to afford the
culprit full opportunity for calm reflection on the consequences of the crime
was not established in this case.”

It follows that Ramirez may properly be convicted only of the
felony of homicide defined and penalized in Article 249 of the Revised Penal
Code in Criminal Case No. T-470 ([G.R. No. 80747] as regards Alo Zaragoza), and
of attempted homicide in Criminal Case No. T-471 ([G.R. No. 80748] as regards
Rodolfo Robosa) and should be sentenced to the medium period of the penalty
prescribed by law for each of said offenses, there being no mitigating or
aggravating circumstance modifying his criminal responsibility. Moreover, in addition to the actual damages
for which he was adjudged liable by the Trial Court, he should also be made to
pay to the heirs of the Zaragoza the additional sum of P50,000.00 as indemnity
for the latter’s death.

WHEREFORE, subject only to the modifications just
indicated, the Decision of the Trial Court in said Criminal Cases No. T-470 and
T-471, dated August 12, 1987, is AFFIRMED and the appellant Merlo Ramirez is
hereby SENTENCED as follows:

1.  In Criminal Case No.
T-470, G.R. No. 80747, to suffer the indeterminate penalty of from eight (8)
years and one (1) day of prision mayor, as minimum, to sixteen (16)
years of reclusion temporal, as maximum, together with all the accessory
penalties thereto appertaining, and to pay to the heirs of the deceased, Aureo
“Alo” Zaragoza, the sum of Fifty Seven Thousand Pesos (P57,000.00) as actual or
compensatory damages and the sum of Fifty Thousand Pesos (P50,000.00) as
indemnity for death; and

2.  In Criminal Case No.
T-471, G.R. No. 80748, to suffer the indeterminate penalty of from two (2)
months and one (1) day of arresto
mayor, as minimum, to three (3) years and three (3) months of prision correccional.

Costs against appellant.

SO ORDERED.

Cruz, Griño-Aquino, and
Medialdea, JJ., concur.

^[1]
Exh. D

^[2]
Branch 51, at Tayug, Pangasinan.

^[3]
Respectively docketed as Criminal Cases
Numbered T-470 and T-471

^[4]
The trial of both cases was presided
over by Hon. Lope P. Lopez, and, upon the latter’s retirement, decided by his
successor, Hon. Hugo B. Sansano, Jr.

^[5]
Rollo, pp. 21-33

^[6]
TSN, Oct. 6, 1981, p. 81; Original Record, p. 157

^[7]
Citing U.S. v. Ah Chong, 15 Phil. 503 allegedly stating “in
substance ** (that) to stop and ascertain if the aggressor is armed, would
entirely take away the essential right of self-defense” (Appellant’s Brief, p.
69)

^[8]
Appellant’s Brief. pp. 36-37, 70

^[9]
At p. 4494: italics supplied

^[10] 64 SCRA 659, 665-666

^[11]
Appellant’s Brief, p. 69

^[12]
15 Phil. 503

^[13]
Ortega v. Sandiganbayan, G.R. No. 57664, Feb. 8. 1989; Peo. v.
Bayocot, G.R. No. 55285, June 28, 1989; Peo. v. Rey, G.R. No. 80089,
April 13, 1989

^[14]
Peo. v. Tugbo, G.R No.
75894 (April 22, 1991) citing Peo. v. Vicente, 141 SCRA 347; Peo. v.
Salcedo, 172 SCRA 78; Peo. v. Raquipo, 188 SCRA 571

^[15]
170 SCRA 640 (1989); Peo. v.
Catugay, G.R. No. 74065, Feb. 27, 1989; Peo. v. Almario. G.R. No. 69374,
March 16, 1989