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343 Phil. 225


[ G.R. No. 121377, August 15, 1997 ]




This is an appeal from the Decision[1] of the Regional Trial Court of Dumaguete City, Branch 44, dated August 12, 1994, in Criminal Case No. 10126, convicting Joseph Gelera @ "Saki" and Rogelio Fernandez @ "Timboy" of Murder and sentencing them to suffer the penalty of reclusion perpetua in its medium period and to indemnify jointly and severally the heirs of the victim, Daniel Udto, the sum of fifty thousand pesos (P50,000.00) without subsidiary imprisonment in case of insolvency.

The two were charged in an Information which reads as follows:
That on December 4, 1991, at more or less 11 o'clock in the evening, in Sitio Malampa, Barangay Pangatban, Bayawan, Negros Oriental, and within the jurisdiction of this Honorable Court, the above named accused, conspiring and confederating and mutually helping each other, with intent to kill and with evident premeditation and treachery, did then and there willfully, unlawfully and feloniously attack, box and strike one DANIEL UDTO with the use of a stone with which they were then armed, thereby hitting and inflicting upon said Daniel Udto physical injuries which caused cerebral hemorrhage causing his death soon thereafter.

"Contrary to Article 248 of the Revised Penal Code."
The facts are as follows:

On December 4, 1991, at about 7 p.m., 14-year old Amid Jamandron, Joseph Gelera alias "Saki" and Aron Vergara went to Sitio Malampa, Barangay Pangatban, Bayawan, Negros Oriental, to watch a dance. At the dance hall, Amid saw his uncle, Daniel Udto, Rogelio Fernandez alias "Timboy", Ruty Gelera and one Pabling.[2] At about 11 p.m., Eduardo Aniñon, a neighbor of Daniel and one of the organizers of the dance, noticed that Daniel was already drunk and could hardly walk straight. He advised Daniel to stop drinking and sleep in his grandfather's house. Fernandez, claiming to be Daniel's nephew, volunteered and insisted on bringing him home. Daniel's grandmother, Marta, warned him that he would be responsible if something happened to Daniel. Fernandez left the dance hall with Daniel, Gelera, Amid Jamandron and Aron Vergara.[3]

After about half kilometer, Daniel, Fernandez and Gelera walked with their arms over each other's shoulders along a narrow footpath. Following them some ten (10) meters away were Amid and Aron. The place was illumined by two (2) electric lamps. Amid testified that Fernandez punched Daniel causing the latter to fall down. Aron rushed back to the dance hall when the violence started. While Daniel was down on the ground, Gelera struck him with a stone five times (5x) on the neck. Thereafter, Fernandez and Gelera dumped Daniel face down in a nearby canal filled with knee-deep water. They then stepped on his body. Amid saw that Daniel was dead. The three left and went to the beach where they separated. Amid went home to sleep.[4]

At about 7 a.m. of the following day, Fernandez and Gelera went to Amid's house and told him to stow away with them. Amid refused and the two did not persist with their suggestion. Thereafter, Amid informed his father about the killing of Daniel.[5]

A certain Rustico Zamora reported the killing to the police at about 11 a.m. At the crime scene, the policemen found a dead body, face down lying flat on the canal. The body bore contusions on the left forehead, left side below the ear, left chin and left side below the throat. The dead person was identified by his relatives as Daniel Udto alias "Dadi". The policemen found out that the night before, Daniel left the dance hall with Fernandez, Gelera and Amid Jamandron. They investigated Amid and he revealed to them that Fernandez and Gelera were the perpetrators of the crime.[6]

Gelera claimed self-defense. He testified that he saw Daniel Udto drinking at the dance hall on the night of December 4, 1991. Without any provocation, Daniel punched him. Instead of retaliating, he just walked away from Daniel as the latter was drunk. He remained in the dance hall drinking wine. He left for home at about 11 p.m. with Amid Jamandron. Along a narrow footpath, he heard somebody say "You are here, I will finish you." He identified the voice as that of Daniel. Daniel boxed him at the upper left portion of his chest and he fell to the ground. As Daniel might strike him again, he grabbed a stone and threw it at Daniel. The stone hit Daniel at the left portion below the base of the neck causing him to fall. Daniel got up and attempted to attack him again. He then struck Daniel on the neck with a stone and he fell to the ground once more. He left Daniel for fear that he might get up and strike back.[7]

Gelera alleged that he has no misunderstanding with Daniel. He explained that he used a stone to repulse Daniel's attack because he was smaller than Daniel.[8]

Rogelio Fernandez's defense was alibi. He testified that on December 2, 1991, he left Barangay Cansilong, Bayawan, Negros Oriental, at about 8 p.m. with Boboy Puyat, Tinoy Atay, a certain Bebot and an unnamed boatman to fish in the deep sea of Mindanao. They stayed in the sea for three days and two nights. They returned to Bayawan on December 5, 1991 at about 11 a.m. When he arrived at his house at about 12 noon, he found Gelera who told him about his encounter with Daniel on the night of December 4, 1991. He declared that he and Gelera were arrested at his house by Victor, a CVO member, and brought to the house of the barangay captain who was not around at that time. They proceeded to the police station in Bayawan where he was forced to admit the killing of Daniel. Allegedly, his head was bumped against the cement wall by one of the policemen.[9]

The trial court convicted Gelera and Fernandez of "the crime of murder committed by means of superior strength, evident premeditation, grave abuse of confidence, qualified with (sic) treachery".[10] Both appealed. Accused-appellant Gelera contends in his Brief:
I. The trial court erred in holding that the killing of the victim, Daniel Udto, was attended with the qualifying circumstances of superior strength, evident premeditation, grave abuse of confidence and treachery.

"II. The trial court erred in not finding that accused-appellant acted in legitimate self-defense."
As for accused Fernandez, the records show that he escaped from the Negros Oriental Rehabilitation and Detention Center, Dumaguete City, on April 6, 1995.[11] Pursuant to section 8 of Rule 124, the appeal of Fernandez is dismissed.

The appeal of Gelera is partly meritorious.


In the first assignment of error, appellant Gelera claims that the trial court erred in holding that the qualifying circumstances of abuse of confidence and abuse of superior strength attended the killing of Daniel although they were not alleged in the Information. A reading of the dispositive portion of the assailed Decision, however, clearly shows that the aggravating circumstances of abuse of superior strength and grave abuse of confidence were not used by the trial court to qualify the crime committed by the accused-appellant to murder. Its dispositive portion states:
"WHEREFORE, finding the evidence for the prosecution convincing and credible, this Court hereby declares both accused Joseph Gelera alias "Saki" and Rogelio Fernandez alias "Timboy" guilty beyond reasonable doubt of the crime of Murder committed by means of superior strength, evident premeditation, grave abuse of confidence, qualified with (sic) treachery."
Plainly, treachery was the only qualifying circumstance used by the trial court in convicting appellant of murder. It is not disputed that treachery as a qualifying circumstance was alleged in the Information. Abuse of superior strength, abuse of confidence and evident premeditation were appreciated by the trial court as mere generic aggravating circumstances. Generic aggravating circumstances may be proven even if not alleged in the information.[12]


We now pass upon the propriety of the trial court's appreciation of the qualifying circumstance of treachery and the aggravating circumstances of abuse of confidence, superior strength and evident premeditation.

For treachery to be appreciated, the prosecution must prove: (1) that at the time of the attack, the victim was not in a position to defend himself, and (2) that the offender consciously adopted the particular means, method or form of attack employed by him. From the evidence on record, we find that treachery was not proved by clear and convincing evidence. The trial court merely relied on the testimony of Amid Jamandron, the lone eyewitness in the killing of Daniel, to wit:

Can you describe to us how the four (4) of you were positioned in walking home that evening of December 4, 1991?
Daniel, Timboy and Saki were walking with arms over each other's shoulders.
What about you in relation to the three (3) of them? Where were you situated, in front of them or behind them?

I was at the back.
While you were in that situation with the three (3) of them walking with their arms over their shoulders and you were at the back, do you remember if there was any unusual incident that happened?
What was that unusual incident? Please tell us.
At first he was punched.
Who was punched?
You are referring to the victim in this case?


And who boxed Daniel?


And you are referring to the accused you pointed out awhile ago?

What happened to Daniel Udto when he was boxed by Rogelio Fernandez alias "Timboy"?

He fell down.

When Daniel Udto fell down, what happened next, if any?

He was struck with a stone in the neck.
Who struck Daniel Udto?

When you said Saki, you are referring to Joseph Gelera, one of the accused in this case?

Was Daniel Udto hit when Saki struck him with a stone?


Amid's testimony lacks details on what immediately preceded the punching of Daniel. We cannot fairly deduce from his scant testimony that the attack was sudden and unexpected. Even if the blow on Daniel was sudden, this fact alone would not constitute treachery. We have ruled time and again that mere suddenness of attack is not synonymous to treachery.[14] Likewise, the failure of Daniel to resist the attack is not enough to prove treachery. There is no showing that appellant and accused Fernandez consciously adopted the particular means, method or form of attack employed by them against Daniel. Treachery cannot be deduced from mere presumption or sheer speculation.[15]

The trial court also held that accused-appellant Gelera and accused Fernandez took advantage of their superior strength in killing Daniel. We do not agree. To appreciate this aggravating circumstance, what should be considered is not that there were three, four or more assailants of one victim, but whether the aggressors took advantage of their combined strength in order to consummate the offense.[16] It is therefore necessary to show that the attackers "cooperated in such a way as to secure advantage of their superiority in strength."[17] In the instant case, there is no proof that the appellant and the accused Fernandez took advantage of their combined strength to kill Daniel. Superiority in number does not per se mean superiority in strength.

We also hold that the finding of the trial court that there was grave abuse of confidence on the part of the appellant is not supported by the records. For this aggravating circumstance to exist, it is essential to show that the confidence between the parties must be immediate and personal such as would give the accused some advantage or make it easier for him to commit the criminal act.[18] The confidence must be a means of facilitating the commission of the crime, the culprit taking advantage of the offended party's belief that the former would not abuse said confidence.[19] Except for the testimony of Aniñon that accused Fernandez claimed to be the nephew of the victim, no evidence was shown to prove that the victim reposed confidence upon the accused and his companions and that the latter took advantage of such confidence. The evidence is insufficient.

Lastly, we hold that the trial court erred when it found evident premeditation to exist in the commission of the crime. The prosecution failed to establish its requisites, viz: (a) the time when the accused determined to commit the crime, (b) an act manifestly indicating that the accused has clung to his determination, and (c) a sufficient lapse of time between such determination and execution to allow him to reflect upon the consequences of his act.[20] There is no evidence when and how appellant planned and prepared for the killing of the victim. There is no act indicating that appellant and Fernandez persisted in their plan. Nor is there any evidence of the lapse of time between the determination and execution of the same.


We reject appellant's claim that the trial court erred in not finding that he acted in legitimate self-defense. Where an accused charged with the killing of a person admits having caused that death but invokes self-defense to escape from criminal liability, it becomes incumbent upon him to prove by clear and convincing evidence the positiveness of that justifying circumstance; otherwise, having admitted the killing, conviction is inescapable. Self-defense is an affirmative allegation that must be established with certainty by sufficient and satisfactory proof and, coincidentally, the existence of the following requisites: (a) unlawful aggression; (b) reasonable necessity of the means employed to repel it; and (c) lack of sufficient provocation on the part of the person defending himself. All these conditions must concur.[21] As correctly held by the trial court, appellant's version that he was punched by the victim at the dance hall and later waylaid on his way home is devoid of credibility. His testimony is self-serving and no witness corroborated his claim that the victim attacked him in the dance hall. His allegation that the victim ambushed him is belied by the fact that the victim was so drunk that he could not even manage to stand up and walk by himself.[22] There is thus no basis for appellant's claim that there was unlawful aggression on the part of the victim prompting him to defend himself.

IN VIEW WHEREOF, the Decision of the Regional Trial Court of Dumaguete City, Branch 44, in Criminal Case No. 10126, is SET ASIDE and a new one is entered finding appellant Joseph Gelera guilty beyond reasonable doubt of the crime of HOMICIDE. He is sentenced to suffer an indeterminate penalty ranging from 12 years of prision mayor, as minimum, to 17 years and 4 months of reclusion temporal, as maximum, with all the accessory penalties prescribed by law. Appellant is also ordered to indemnify the heirs of Daniel Udto the sum of fifty thousand pesos (P50,000.00).

No costs.

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

[1] Penned by Judge Alvin L. Tan.

[2] TSN, Amid Jamandron, September 15, 1992, pp. 6-8.

[3] TSN, Eduardo Aniñon, January 4, 1994, pp. 3, 6-7, 9, 11.

[4] Supra note 2, pp. 10-19, 25-26.

[5] Id.

[6] TSN, SPO4 Victorio Obang, October 6, 1992, pp. 7, 9, 11 13, 34-35, 38.

[7] TSN, Joseph Gelera, January 5, 1995, pp. 5-17.

[8] Id., p. 17.

[9] TSN, Rogelio Fernandez, June 17, 1992, pp. 7-19.

[10] Decision, p. 16, Rollo, p. 35.

[11] Rollo, pp. 87-88.

[12] Aquino, Ramon C., The Revised Penal Code, Volume I 1997 Ed., p. 301.

[13] Supra note 2, pp. 10-12.

[14] People v. Silvestre, 244 SCRA 476 [1995]; People v. Bautista, 254 SCRA 621 [1996].

[15] People v. Alba, 256 SCRA 505 [1996].

[16] People v. Flores, 40 SCRA 230 [1971].

[17] U.S. v. Elizaga, 86 Phil. 365 [1950]; People v. Bernal 254 SCRA 659 [1996].

[18] U.S. v. Torida, 23 Phil. 189 [1912].

[19] U.S. v. Luchico, 49 Phil. 689 [1926]; People v. Hanasan, 29 SCRA 534 [1969].

[20] People v. Cruz, G.R. No. 116989, September 20, 1996.

[21] People v. Patotoy, G. R. No. 102058, August 26, 1996.

[22] Supra note 3, p. 9.

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