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326 Phil. 519


[ G.R. No. 107715, April 25, 1996 ]




This is an appeal from the decision[1] rendered by the Regional Trial Court, Branch 10, Cebu City in Criminal Case No. CBU-24377, finding accused-appellant guilty of murder and sentencing him to suffer the penalty of reclusion perpetua, to indemnify the heirs of the deceased, Constancio Marata, in the sum of P50,000.00 and to pay the costs.

Isidro Alba, accused-appellant herein, Constancio Marata and Gregorio Lelis were laborers working on the construction of a two-storey building at Sunny Hill, Casabella, Lahug, Cebu City. The laborers lived in bunkhouses provided by the construction company, with the exception of Constancio Marata, a bandsaw operator, who preferred to sleep near the bandsaw, using a plank for a bed.[2]

On December 19, 1991, Marata was found dead with stab wounds in several parts of his body. Gregorio Lelis, the lone eyewitness to the incident, identified Isidro Alba as the assailant. Alba was subsequently charged with murder in an information filed on January 2, 1992.[3]

Upon being arraigned Alba pleaded "not guilty,"[4] whereupon he was tried.

The prosecution presented three witnesses: Gregorio Lelis, Senior Police Officers Allan Kintanar and Rogelio Q. Cortel, and Dr. Crisostomo C. Abbu. It also presented in rebuttal Vianny Cadungog, assistant engineer of MBA Construction which undertook the construction job.

Gregorio Lelis testified that on December 18, 1991, at 6:00 P.M., Alba and Constancio Marata, together with co-workers Pabling and "Junior" Salgado, were having drinks. Lelis was invited by Marata to join the group, but Lelis declined, as he was then cooking his dinner. Lelis later repaired to his bunkhouse 30 meters away from the place where the group was having drinks.[5]

Even after Lelis had gone inside his bunkhouse and tried to go to sleep, he could still hear the group boisterously drinking. He later sensed a quarrel in the group as he heard Salgado pleading with someone in the group, "Don’t stab him, Bay. We’re all co-workers. If you want to stab, stab me instead."[6]

Around 11:00 P.M., the group broke up. Lelis heard accused-appellant and Marata laughing together as they walked back to the bandsaw area after accompanying Pabling and Salgado to the gate of the compound. Then the two became quiet, making Lelis think that they had gone to sleep.[7]

On the night in question, Lelis had difficulty getting sleep. While lying in his bunkhouse awake, he was startled by the sound of what seemed to be an "exploding ball"[8] coming from the bandsaw area. He peeped through the door of his bunkhouse and saw accused-appellant standing over Marata who was down on the ground.[9] Lelis had a good view of the bandsaw area as it was illuminated by a 40-watt fluorescent bulb. According to him, accused-appellant was wielding a stainless knife, about 6-7 inches long, which he plunged into Marata several times, moving it "sidewise, forward and backward" each time he hit his victim.[10] Afterward Lelis saw accused-appellant go inside the bathroom which was ten meters away from the bandsaw.

Fearing for his safety, Lelis stayed inside his bunkhouse until other workers were already about. At 3:30 A.M. he went to Dario Donaire, the trustee of Joseph Tan, owner of the building under construction, and reported the matter.[11] The two then proceeded to Tan’s residence and called up the police.

At 6:30 A.M., December 19, 1991, police officers Rogelio Cortel and Alan Kintanar of the Mabolo Police Station arrived at the compound and found the lifeless body of Marata. SPO1 Alan Kintanar interviewed several workers at the scene of the crime, but remembers Lelis in particular as the one who identified accused-appellant as the assailant.[12] Other workers reported that accused-appellant was seen waiting for a jeep outside the compound. Together with Lelis and other workers, the policemen went to Sudlon and found accused-appellant waiting for ajeepney.[13] They arrested him and brought him back to the compound.

On their way to the compound, accused-appellant admitted to the policemen his having stabbed Marata. He led them to the place where he threw away the knife. The knife was recovered, identified by the accused-appellant, and tagged by SPO1 Cortel. Accused-appellant was then taken to the Mabolo Police Station.

Dr. Crisostomo C. Abbu performed an autopsy on December 19, 1991 at 12:30 P.M. He found Marata to have suffered the following wounds:[14]

1.  Stab Wound, 4cm. x 1cm., located at the epigastric region of the abdomen, perforating the stomach, resulting to an intensive hemorrhage.

2.  Stab Wound, 2cm. x 1cm., located at the left upper quadrant of the abdomen, 6cm. to the left from the anterior median line of the abdomen and 17cm. below the left nipple, hitting the small and large intestines and the spleen resulting to a massive hemorrhage.

3.  Stab Wound, 5cm. x 3cm. located 3cm. above the left nipple. The wound passed through the left intercostal space hitting the left lung resulting in a massive hemorrhage.

4.  Hacking Wound, 13cm. long and 4cm. at its widest gap located perpendicularly at the left side of the neck up to the left jaw. The major blood vessels of the left side of the neck were cut, resulting to a massive hemorrhage.

5.  Incised Wound, 3cm. x 1cm., located at right deltoid region. It involved only the muscles.

6.  Incised Wound, 4cm. x 1cm., located 4cm above the left elbow. It involve the skin and muscles.

7.  Incised Wound, 5cm. x 1cm., located horizontally at the back of the neck, involving the muscular tissues.

8.  Incised Wound, 2cm. x 0.5cm., located horizontally and 2cm. below Incised Wound Number 7, involving the muscles.

Dr. Abbu identified the cause of death as irreversible shock secondary to massive hemorrhage due to multiple stab wounds.

Testifying as lone defense witness, accused-appellant claimed he acted in self-defense. His version of the incident is as follows:[15] On the night of December 18, 1991, as he was cooking dinner in the hall, he was invited by Marata to join the latter and their co-workers Pabling and "Junior" Salgado who were drinking tuba near the bandsaw. According to accused-appellant, at first he refused to have a drink as he had not yet eaten dinner but as the group was insistent, he took a drink and then went back to his cooking.

Minutes later, however, Marata was back to borrow money in order to buy some more liquor for the group. Accused-appellant said he had no money, but Marata invited him to join the group anyway. Accused-appellant went with Marata but refused to have a drink, saying he had to sleep because he was very tired. Marata again asked him if he could spare some money to buy some liquor. Accused-appellant again answered he had none. Since they had no more to drink, Pabling and Salgado left, leaving Marata and accused-appellant behind.[16]

But even after the two had left Marata still asked accused-appellant for money so that they could continue drinking. When accused-appellant said he really had no money, Marata became angry and chided him, saying that for a newcomer accused-appellant was already trying to be smart. He called accused-appellant a braggart,[17] even as he gave him a blow on the left breast. Marata then allegedly pulled out a hunting knife, about 6-7 inches long, and tried to stab the accused-appellant but the latter was able to hold Marata’s hand, twist it and then kick him in the groin with his right knee, causing Marata to loosen his hold of the knife. Accused-appellant was thus able to wrest the knife with his left hand.

Marata then picked up a 2" x 2" x 14" piece of wood and struck accused-appellant on the left back portion of his body.[18] Accused-appellant pleaded with Marata to stop beating him but the latter struck him again with the piece of wood. Accused-appellant parried the blow with his left arm. He showed a scar, about 2 inches in length, near his wrist, which was allegedly caused by the blow.[19]

Accused-appellant claims that as he backed off, he lost his balance and fell to the ground. For this reason he used his right leg to parry the blows.[20] As he cringed in pain from the injury on his right leg, which he cradled in his chest with his right arm, Marata sat astride him and pinned down his right arm to the ground. In that position, accused-appellant stabbed Marata in the stomach, with his left arm which held the knife. This forced Marata to disengage from accused-appellant. According to accused-appellant, he warned Marata not to come near him but Marata rushed towards him just the same. Accused-appellant therefore stabbed him in the lower right portion of the stomach. Marata twirled as he cried for help and fell to the ground.

Accused-appellant said he then went to the building under construction and holed himself up in a room on the second floor for fear of reprisal from Marata’ s friends. He stayed there until 5:00 A.M. when he decided to go to the police station to surrender. As he was waiting for ajeepney, he was arrested. He told the police officers upon questioning that he stabbed Marata but did not kill him. He also showed them his wounds, but they allegedly ignored him.[21]

Accused-appellant claimed that prosecution witness Gregorio Lelis bore him a grudge because he reported Lelis for making a mistake in installing a molding. Accused-appellant said that based on his report, Lelis was dismissed from the company on October 20, 1991.[22]

In rebuttal, the prosecution presented Vianny Cadungog, assistant engineer of the construction project, who testified that he did not know of any quarrel between the accused-appellant and Gregorio Lelis prior to or on the day of the incident. The prosecution also presented the certification of Project Engineer Acocoro who stated that Gregorio Lelis worked at the construction project until its completion on January 15, 1992.

On September 28, 1992, the trial court rendered a decision finding the accused-appellant guilty as charged. Hence this appeal.

First. Accused-appellant insists on his claim below that he acted in self-defense. However, his evidence to prove this is not clear and convincing. Having admitted the killing of Marata, the burden was on accused-appellant to prove by means of clear and convincing evidence the elements of self-defense, to wit: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it and (3) lack of sufficient provocation on the part of the person defending himself.[23]

Unlawful aggression is an essential and primary element of self-defense. Without it there can be no self-defense. In the case at bar accused-appellant’s claim that Marata was guilty of aggression is difficult to believe. According to accused-appellant when Marata asked him for the third time for money so that they could buy some drinks and accused-appellant said he had no money, Marata became angry. Marata allegedly gave him a blow on the chest and pulled out a knife, but accused-appellant was able to wrest it from Marata. Accused-appellant allegedly backed off even as Marata kept advancing until accused-appellant fell to the ground and Marata was able to subdue him by sitting astride him and holding his (accused-appellant) right arm. But, according to accused-appellant, his left hand held the knife so that he was able to swing it at Marata.

This claim raises many questions. First, why would Marata pin down accused-appellant’s right arm when it was the latter’s left hand which was holding the knife? Second, even it accused-appellant had seized the knife from Marata with the use of his (accused-appellant’s) left hand, why did he not later transfer the knife to his right hand considering that he was right-handed and it was only after some time that he fell to the ground? Evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances.[24]

More questions are raised by accused-appellant’s claim that he stabbed Marata twice, once as Marata allegedly sat astride him and again when Marata lunged at him after getting up from that position. The autopsy report shows, however, that the victim suffered eight serious wounds - not just two - in the stomach and chest with depths ranging from 2cm. to 13cm., and that all the wounds were inflicted by one weapon.[25] Four of the wounds were fatal.[26] Their number, location, depth and width negate any purpose to disable his assailant only. They confirm the testimony of Gregorio Lelis that accused-appellant wantonly dealt his victim several blows with a knife.

When confronted with this fact, accused-appellant could only say he could not remember how many times he had wounded Marata. He testified:

How could you explain the fact that when the police officers examined the body of Constancio Marata, there were several wounds, serious wounds when according to you, you only stabbed him twice?
I could not tell, I could notexplain, sir because at that time, I forgot myself. What I remember is that he suffered two wounds.[27]

Accused-appellant claims that after he stabbed Marata, Marata got up and released him but afterward Marata tried to attack him again. According to accused-appellant, although Marata was unarmed, he kept rushing towards him. Did Marata mindlessly charge against accused-appellant like a wounded bull in a Spanish ring? The testimony is incredible.

Accused-appellant’s other evidence of unlawful aggression consisted of a few scars which he claimed had been wounds inflicted by the victim. But accused-appellant did not have any medical certificate to show that the wounds were recently suffered as a result of the attack. Mere exhibition of the scars does not meet the required quantum of proof of unlawful aggression in self-defense.[28] The piece of wood allegedly used by the victim in attacking the accused-appellant was not even presented.

Accused-appellant’s claim of self-defense is incredible. The trial court correctly relied on the testimony of prosecution witness Gregorio Lelis who positively identified accused-appellant as the person who stabbed Marata to death. Lelis had known accused-appellant for the past three (3) months, having been his co-worker at the construction site. The allegation that Lelis, had an ax to grind because he had allegedly been dismissed on October 20, 1991 because accused-appellant had reported him to their employer, has no basis in fact. Vianny Cadungog, assistant project engineer of the construction project, denied that Gregorio Lelis had been dismissed. He testified that Lelis stopped working on January 15, 1992, after carpentry work on the building had been fmished. Engineer Uric! Acocoro and Joseph Tan, the owner of the house being constructed, certified that:[29]

...Gregorio Lelis (carpenter) had been with us up to January ‘92 only as the carpentry works that we constructed are all almost completed already during that specific date. Regarding his performance and character, he’s excellent in his job but only that he is just a roughing carpenter. In regards with this I have been recommended to him to the other on-going construction at GMA-7. Nivel Hills which he have worked there for more than 3 months. He had not been laid-off with us only the reason that the job construction are all almost completed.

Indeed, if Lelis had been dismissed on October 20, 1991, he would not have been in the construction area and he would not have been able to report Marata’s killing on December 19, 1991.

The trial court had the singular opportunity not available to this Court to see the witness on the witness stand and determine by his demeanor whether he was testifying truthfully or lying through his teeth.[30] We have been shown no good reason for disregarding its finding.

Second. It is argued that even assuming that accused-appellant is liable for the killing of Marata the crime committed is not murder but homicide, as the prosecution failed to prove the qualifying circumstance of treachery.

We find this contention to be well taken. The trial court found that accused-appellant attacked Marata while the latter was asleep and from this circumstance concluded that there was treachery. However, there is no evidence to show this to be the case. Lelis thought that Marata was asleep when he was killed because, after hearing Marata and accused-appellant laughing, the two became quiet. But Lelis was not sure of this. He testified:
Until what time did you hear them talking to each other?
Past 11:00 PM, they kept quiet.
About what time was that?
Past 11:00 PM.
After that when you did not hear them laughing, what did you do?
I just stayed in the bunkhouse because I was not able to sleep.
So you did not know what happened when they were no longer laughing?
They slept.
And you saw this even if you were inside your bunkhouse?
I don’t know whether they were sleeping because I was in my bunkhouse.[31]

Lelis witnessed the attack only after it had begun, after he had been startled by a sound like that of an exploding ball. Without evidence as to how the attack began, it is impossible to show that the accused-appellant pondered upon the mode or method to insure the killing of the victim without risk to himself arising from the defense that the victim might make.[32]

The circumstances that qualify killing as murder must be proven as indubitably as the killing itself. Treachery cannot be deduced from mere presumption or sheer speculation. Accordingly accused-appellant should be given the benefit of the doubt and the crime should be considered homicide only.

Third. This point has not been raised on appeal, but the record justifies appreciating in favor of the accused-appellant the mitigating circumstance of voluntary surrender. The facts show that he was arrested the morning after the killing while he was waiting for transportation. He claims that he was then on his way to the police station at Mabolo in order to surrender, after finding no policemen at the JY square.

This claim is credible. Had it been his intention to escape, he could have left the compound shortly after 12:00 A.M. of December 19, 1991 when it was still dark and not at 5:00 A.M. of the following day when the place would stir with activity again. That accused-appellant waited until the morning to leave the compound indicates that his purpose was to surrender to the authorities.

WHEREFORE, the decision of the Regional Trial Court is set aside and another one is entered, finding accused-appellant Isidro Alba y Manapat guilty of homicide and, there being one mitigating and no aggravating circumstance, sentencing him to suffer an indeterminate penalty of 6 years and 1 day of prision mayor, as minimum, to 12 years and 1 day of reclusion temporal, as maximum, to indemnify the heirs of the deceased Constancio Marata in the sum of P50,000.00 and to pay the costs.


Regalado (Chairman), Romero, Puno, and Torres, Jr., JJ., concur.

Presided over by Judge Leonardo B. Canares.

[2] Testimony of Gregorio Lelis, TSN, p. 14, May 21, 1992.

[3] Record, p. 1.

[4] Decision, p. 1; Rollo, p. 14.

[5] Testimony of Gregorio Lelis, TSN, p. 12, May 21, 1992.

[6] Id., p. 17.

[7] Id., p. 15.

[8] Id., p. 3.

[9] Id., pp. 2-4.

[10] Id., p. 17.

[11] Id., p. 19.

[12] Testimony of SPO1 Alan Kintanar, TSN, p. 11, May 22, 1992.

[13] Testimony of Gregorio Lelis, TSN, p. 19, May 21, 1992.

[14] Exh. B, Record, p. 27.

[15] Testimony of accused-appellant, TSN, pp. 3-18, June 25, 1992.

[16] Id., p. 5.

[17] Id., p. 6.

[18] Id., p. 7.

[19] Id.

[20] Id., p. 8.

[21] Id., p. 14.

[22] Id., pp. 16-17.

[23] People v. Galit, 230 SCRA 486 (1994).

[24] People v. Santos, 94 SCRA 277 (1979).

[25] Testimony of Dr. Crisostomo C. Abbu, TSN, p.6, May 22, 1992.

[26] Id., p. 4.

[27] Testimony of accused-appellant, TSN, p. 7, June 26, 1992.

[28] People v. Mediavilla, 52 Phil. 94 (1928).

[29] Testimony of Vianny Cadungog, TSN, p. 4, July 31, 1992.

[30] People v. Supremo, 244 SCRA 548 (1995); People v. So, G.R. No. 104664, August 28, 1995.

[31] Testimony of Gregorio Lelis, TSN, p. 15, May 21, 1992.

[32] People v. Nemeria, 242 SCRA 448 (1995); People v. Lug-aw, 229 SCRA 308 (1993).

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