353 Phil. 721
The accused was earlier charged by the Office of the Provincial Prosecutor with murder in an information that read:
“That on or about October 12, 1994 at public Market, at Poblacion, municipality of Mangaldan, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a knife with intent to kill and treachery, did, then and there wilfully, unlawfully and feloniously embrace and stab EDUARDO ULIGAN y CAOILE inflicting upon him mortal wound which caused his death, to the damage and prejudice of his heirs.
“CONTRARY to Art. 248, Revised Penal Code as amended by R.A. 7659.
“Dagupan City, November 22, 1994.”
With the assistance of Attorney Aurora E. Valle of the Public Attorney’s Office (“PAO”), the accused entered a plea of not guilty when arraigned. The pre-trial conference was waived; forthwith, trial on the case ensued.
The prosecution submitted its case with a presentation of an eyewitness account of the incident, the medical findings on the victim by the attending physician, the autopsy report of the examining doctor and the findings of police officers who conducted an investigation of the crime and later apprehended the accused.
Flora Cera, an eyewitness, testified that on 12 October 1994 at around six o’clock in the afternoon, just after alighting from a tricycle at the Public Market of Mangaldan, Pangasinan, she saw Eduardo Uligan buying something from an ambulant vendor. Moments later, she beheld, from a distance of only around one and a half meters, accused-appellant Rey Solis come from behind Eduardo Uligan, then make a strangle hold on the latter and with his free right hand stabbed the victim with a “29” balisong (also commonly known as a “Batangas knife”). Accused-appellant hurriedly left the scene and lost himself inside the public market. The victim was still able to walk some distance away until somebody came to his succor.
The victim was rushed to Dagupan City and brought to the emergency room of Medical City Dagupan, Inc., where he was promptly attended to by Dr. Eugenio De Leon. It was too late, however, for Eduardo Uligan. He expired soon after arriving at the hospital and before any medical treatment could be administered to him. Dr. De Leon testified that the wound sustained by the victim was fatal and could have been caused by a sharp and pointed instrument like a Batangas knife.
Dra. Ophelia T. Rivera conducted an autopsy on the cadaver. She found the victim to have sustained a single lacerated wound at the left chest that fractured ribs, penetrated the lungs and caused a partial perforation of the heart. The wound must have been caused by either a sharp single or double-bladed weapon. The injury sustained was fatal and death was inevitable. Dra. Rivera concurred with Dr. De Leon in concluding that it was possible for the assailant to have been in front or on the left side of, or behind, the victim when the fatal blow was delivered.
SPO4 Antonio Zabala testified that after receiving the report on the stabbing incident, he promptly proceeded to the Medical City Dagupan, Inc., to conduct an investigation. He attempted to interview the victim but he was unable to get any response from the dying man. He took, instead, the sworn statements of Flora Cera, Warlito Junio, Jr., and Delia Uligan.
SPO4 Salvador Samson, an intelligence officer of the Mangaldan Police, declared that on 22 October 1994 he was on duty at the police station when he received a report that accused-appellant was in Gapan, Nueva Ecija. SPO4 Samson, together with a fellow officer, Mario Espiritu, proceeded to Gapan, Nueva Ecija, where accused-appellant was apprehended and brought to the Mangaldan Police Station. The police officers were later able to recover the weapon used in the stabbing incident buried under one of the stalls in the public market of Mangaldan.
The victim’s widow, Delia Uligan, testified that the family spent P68,000.00 by way of actual expenses occasioned by the death of the victim.
The defense presented its lone witness, accused-appellant Rey Solis, to negate the charge of murder against him. He admitted having killed the victim but he interposed the justifying circumstance of self-defense.
In his testimony, accused-appellant, a vegetable vendor, denied having personally known the victim. According to him, at about six o’clock in the afternoon of 12 October 1994, he was at the Mangaldan Public Market when he “accidentally bumped” the victim causing the latter to fall on the pavement. Still showing strong resentment despite accused-appellant’s apology, the victim slapped accused-appellant on the face and then pulled out a knife. The two grappled for possession of the knife until accused-appellant was able to wrest it away from the victim and, holding the latter by the neck, stabbed him on the chest. After the incident, he left the crime scene and proceeded to Rosario, La Union, by tricycle. Two days later, he went to the house of one Leopoldo Visperas in Sta. Maria, San Jacinto, Pangasinan, to seek the latter’s assistance on his intention to surrender to the authorities. He was brought to a certain Col. Lomibao in San Fernando, La Union.
The trial court found for the prosecution; it concluded:
“WHEREFORE, the COURT finds accused Rey Solis guilty beyond reasonable doubt of the felony of MURDER qualified by treachery defined and penalized under Article 248 of the Revised Penal Code as amended by Republic Act No. 7659 and pursuant to law, the Court sentences him the capital penalty of DEATH and to pay Delia Q. Uligan the following to wit:
“1. P68,000.00 as actual damages;
“2. P50,000.00 as indemnity;
“3. P50,000.00 as moral damages;
“4. And costs.
“The fan knife `balisong’ (Exh. I) of the accused is ordered confiscated and forfeited in favor of the government.
In his appeal to this Court, accused-appellant sought to ascribe to the trial court the following “errors;” viz:
“1. The Court a quo gravely erred in finding the accused-appellant guilty beyond reasonable doubt of murder qualified by treachery (Article 248 of the Revised Penal Code as amended by R.A. No. 7659).
“2. The Court a quo gravely erred in sentencing the accused-appellant to death and in not taking into consideration the mitigating circumstance of voluntary surrender.”
Accused-appellant, invoking self-defense, has admitted responsibility for the killing of the victim. In cases, such as here, where an accused owns up the killing of the victim, the burden of evidence is shifted to him to prove by clear and convincing evidence that he is entitled to an extenuating circumstance and that he has incurred no liability therefor. This time, he must rely on the strength of his own evidence and not on the weakness of the case submitted by the prosecution.
The justifying circumstance of self-defense may exempt an accused from criminal liability when the following requisites are met, viz: That (1) there has been an unlawful aggression on the part of the victim; (2) the means employed to prevent or repel such aggression are reasonably necessary; and (3) the person defending himself has not provoked the victim into committing the act of aggression. Unlawful aggression by the victim presupposes an actual, sudden and unexpected attack, or an imminent danger thereof, not merely a threatening or intimidating attitude, and there must exist a real danger to the life or personal safety of the person claiming self-defense. Along with it, there must be a reasonable necessity both in the action taken, as well as in the means used, to ward off the attack.
The Court has carefully examined the records and, unfortunately for accused-appellant, his plea of self-defense must fail.
The debilitating factor, more than anything else, against the self-defense theory was the testimony of Flora Cera, a 38-year old housewife, who positively identified accused-appellant and narrated in detail the incident she had witnessed. Flora Cera testified:
“Q Do you know personally Rey Solis Madam Witness?
“A Yes, sir.
“Q If he is inside the courtroom would you be in the position to identify him?
“A Yes, sir.
“Q Will you please stand up and point to accused Rey Solis?
“A Witness pointed to a person seated inside the courtroom and when asked his name he answered Rey Solis.
“Q Do you likewise know Eduardo Uligan?
“A No, sir but I have seen him during the incident.
“Q Where is Eduardo Uligan now?
“A He is already dead, sir.
“Q On October 12, 1994 at 6:00 p.m. where were you Madam Witness?
“A I was in the market at that time, sir.
“Q What market are you referring to?
“A Mangaldan Public Market, sir.
“Q While you were at the Public market of Mangaldan, Pangasinan, did you see Eduardo Uligan?
“A Yes, sir.
“Q Where did you see him?
“A He was buying ingredients, sir.
“Q Where was he buying ingredients?
“A Outside of the public market, sir.
“Q Do you know the stall where he was buying ingredients?
“A It is not a stall but he is just buying from an ambulant vendor, sir.
“Q While he was buying ingredients from an ambulant vendor, do you know what happened?
“A When I alighted from a tricycle and while Eduardo Uligan was buying the items I saw that he was stabbed by him, sir.
“Q Whom are you referring to who stabbed Eduardo Uligan while he was buying ingredients?
“A The person who was wearing green t-shirt. Witness pointed to Rey Solis.
“Q Will you please tell the Honorable Court what was the position of Eduardo Uligan before he was stabbed by Rey Solis?
“A He was standing, sir.
“Q What was he doing before he was stabbed by Rey Solis?
“A He was buying the items, sir.
“Q And where did Rey Solis come from when he stabbed Eduardo Uligan?
“A He came from behind, sir.
“Q And when Rey Solis got near Eduardo Uligan coming from behind, what did Rey Solis do if any?
“A He did it like this. Witness demonstrating how Rey Solis attacked Eduardo Uligan by strangling him on his neck and his right hand stabbing the victim.
“Q Where was Rey Solis when he strangled the neck of Eduardo Uligan?
“A He was behind Eduardo Uligan, sir.
“Q What did Rey Solis use in stabbing Eduardo Uligan?
“A 29, sir. “COURT:
"Q You are referring to a knife or locally known as `balisong’?
“A Yes, sir.
“Q And how long is the balisong which was used by Rey Solis in stabbing Eduardo Uligan?
“A WITNESS is showing the length of the balisong estimated by counsel to be 6 inches.
“Q What you demonstrated is 6 inches, are you referring to the length of the blade of the balisong or the entire length of the balisong?
“A The handle is already included, sir.
“Q What part of the body of Eduardo Uligan was hit when he was stabbed by Rey Solis?
“A Witness is pointing to his left chest.
“Q And how many times if you know did Rey Solis stab Eduardo Uligan?
“A Only one, sir.
“Q After Rey Solis stabbed Eduardo Uligan, what did Rey Solis do next if you know?
“A No more, he already left by going inside the public market, sir.
“Q And how about Eduardo Uligan, what did he do after he was stabbed by Rey Solis?
“A He was asking help from the persons who are having drinking spree but he was not helped and so he went on walking until somebody helped him proceeding outside the market, sir.
“Q How about you when you saw Eduardo Uligan asking help from persons nearby, what did you do if you did any?
“A I already run away but I am watching, sir.
“Q When accused stabbed Eduardo Uligan, how far were you from them?
“A Witness showing a distance estimated by counsel to be 11/2 meters.
“Q It was already 6:00 p.m., is it not that it is quite dark at that time?
“A It is not yet too dark, sir.
“Q What do you mean when it was not yet too dark?
“A There is still daylight at that time, sir.”
Where there is no evidence to indicate that the witness against the accused has been actuated by any improper motive, and absent any compelling reason to conclude otherwise, the testimony given is ordinarily accorded full faith and credit for it is inconceivable for such a witness to openly concoct a story that would sent an innocent man to jail or, let alone, to the gallows. From all that can be gathered, Flora Cera is a disinterested eyewitness to the stabbing incident against whom no malice or sinister motive has been imputed.
Surprisingly, accused-appellant himself testified that he already had overpowered the victim by the time the fatal thrust was delivered. Also noteworthy was that accused-appellant went into hiding in La Union immediately after the incident. The flight of an accused, when unexplained, would be a circumstance from which an inference of guilt might be drawn. It would appear that appellant did not bother to tell his version of the incident, but remained silent, even when brought to the Mangaldan Police Station. A truly innocent person would normally grasp the first available opportunity to defend himself and to assert his innocence over a crime imputed against him.
Again, the Court might stress the rule that when the real issue is a clash of credibility in the testimony of witnesses, an appellate court would ordinarily defer to, even rely on, the assessment and judgment made by the trial court which concededly has better vantage points than the former in the determination of that issue.
The Court, nevertheless, finds the crime committed by appellant to be one of homicide rather than of murder. In order to qualify a killing to murder, the circumstance invoked therefor by the prosecution must be proven as indubitably as the killing itself and cannot be deduced from mere inference. Here, the Court believes that the trial court has erred in appreciating treachery to have qualified the killing to murder. During cross-examination, witness Flora Cera has declared that she did not see anything prior to the stabbing incident; thus:
“Q Madam Witness, when you alighted from that tricycle was your attention directed to Eduardo Uligan at once?
“A Right after I alighted from the tricycle I saw at once Rey Solis stabbed the victim, sir.
“Q You only saw that incident, that stabbing incident and nothing more?
“A No more, sir.
“Q You do not know what happened prior to that stabbing incident but it was only the stabbing?
“A I did not see any prior incident, sir.
“Q Madam Witness, right after you saw Rey Solis stabbed Eduardo Uligan you said you just went away, did I get you right?
“A Yes, sir.
“Q Why did you run?
“A Yes because I was frightened of what I witnessed, sir.”
The essence of treachery is the sudden and unexpected attack by an assailant without the slightest provocation on the part of the victim. Absent any particulars on the manner in which the aggression has commenced or how the story resulting in the death of the victim has unfolded, treachery cannot be reasonably appreciated to qualify the killing to murder.
Neither can abuse of superior strength against accused-appellant be used to qualify the crime to murder, the same not having been so alleged in the information, nor appreciable even as a generic aggravating circumstance for, whether as a qualifying circumstance or as an aggravating circumstance, abuse of superior strength requires, at base, a deliberate intent on the part of the malefactor to take advantage thereof. While abuse of superior strength may be considered when there is an inequality of comparative force between the victim and the aggressor, there must, nonetheless, be a situation of strength notoriously selected and made use of by the latter in the commission of the crime.
Appellant’s claim of voluntary surrender was not sufficiently substantiated. The evidence would indicate, in fact, that appellant was arrested by virtue of a warrant of arrest issued against him. On this score, SPO4 Antonio Zabala and SPO4 Salvador Samson testified:
Testimony of SPO4 Antonio Zabala:
“Q Do you know when was Rey Solis arrested?
“A October 22, 1994, sir.
“Q How was he arrested, was he arrested by virtue of the warrant of arrest issued by the Municipal Trial Court of Mangaldan, Pangasinan?
“A He has a standing warrant of arrest, he was arrested in Gapan, Nueva Ecija, sir.
“Q So, he was arrested by virtue of the warrant of arrest issued by Judge Maramba of the Municipal Trial Court of Mangaldan, Pangasinan?
“A Yes, sir. “ATTY. VALLE:
“Q When was he arrested in Gapan, Nueva Ecija?
“A According to the apprehending officer, he was arrested by a certain barangay captain, sir.
“Q Who arrested him in Gapan, Nueva Ecija?
“A Brgy. Captain, Alfredo Ocampo, sir.
“Q When was the time Rey Solis was taken into their custody?
Already answered, he said October 22, 1994.
“Q After the arrest of Rey Solis sometime October 22, 1994 he was committed to your detention cell?
“A Yes, sir.
“Q Was he arrested in Gapan or was he surrendered by a certain barangay captain Ocampo?
He would be incompetent, Your Honor.
He was arrested in Gapan Nueva Ecija and the arresting Brgy. Captain surrendered him to our office, sir.”
Testimony of SPO4 Salvador Samson:
“Q Were you able to arrive at Gapan Nueva Ecija on the same date?
“A Yes, sir.
“Q When you arrived at Gapan, Nueva Ecija what happened there?
“A The accused was turned over to Brgy. Captain Wilfredo Ocampo, sir.
“Q Who turned over to Brgy. Captain Wilfredo Ocampo the person of the suspect?
“A I could not remember, sir.
“Q In what particular place in Gapan Nueva Ecija the accused was surrendered?
“A I could not also remember, sir.
“Q Do you know the person who turned over the person of the accused to Brgy. Captain Wilfredo Ocampo?
“Q You are mentioning of Gapan Nueva Ecija, why is it that you cannot mention the place where the accused was turned over to Brgy. Captain Wilfredo Ocampo?
“A Because when we went there, they immediately turned over the person of the accused, sir.
“Q Who is that person, is he a civilian or a military?
“A Civilian, sir.
“Q Do you know the Poblacion of Gapan, Nueva Ecija?
“A I am aware of the Poblacion of Gapan Nueva Ecija but I am not aware of that particular barangay, sir.
“Q That place where the person of accused was turned over by a certain civilian to Brgy. Captain Wilfredo Ocampo, how far is that barangay to Poblacion?
“A Quite far to the Poblacion, sir.
“Q Being the police officer who went with Brgy. Captain Wilfredo Ocampo in Gapan Nueva Ecija did you ask the person who turned over the accused to Brgy. Captain Wilfredo Ocampo under what authority he was in custody of the accused?
“A I and my companion Mario Espiritu only went there and it was only Mr. Wilfredo Ocampo who talked with him, sir.
“Q The truth of the matter is that the accused did not surrender to Brgy. Captain Wilfredo Ocampo, to you as well as your companion but he was turned over by a civilian to Brgy. Captain Wilfredo Ocampo?
“A Yes, sir.”
Given the above testimony, the least accused-appellant could have done was to present Brgy. Captain Ocampo to attest to the fact of surrender, if truly he did. The failure to present a witness in a position to establish a party’s thesis could give rise to the implication that his testimony, if produced, would be adverse.
Relative to the claim for damages by the victim’s widow, only the following expenses duly substantiated can be awarded by way of actual damages:
1. tomb - P 2,500.00 2. funeral mass - 600.00 3. materials and labor of tomb - 3,300.00 P 6,400.00
In order to justify a grant of actual damages, it is necessary to prove with a reasonable degree of certainty, premised upon competent proof and on good evidence obtainable by the injured party, the actual amount of loss. The award by the trial court of moral damages is appropriate pursuant to Article 2219, in relation to Article 2206, of the Civil Code.
Now to the penalty. Article 249 of the Revised Penal Code, prescribes the penalty of reclusion temporal for homicide. There being no mitigating nor aggravating circumstance that can aptly be appreciated, the penalty shall be imposed in its medium period, the range of which is from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. Applying the Indeterminate Sentence Law, the range of the penalty that can be imposed could be anywhere within the range of prision mayor, the next lower degree than reclusion temporal, of from six (6) years and one (1) day to twelve (12) years, as minimum, to reclusion temporal in its medium period of from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months, as maximum.
WHEREFORE, the judgment of the trial court convicting accused-appellant Rey Solis for the killing of Eduardo Uligan is MODIFIED. Accused-appellant Rey Solis is hereby found guilty of homicide, instead of murder, under Article 249 of the Revised Penal Code, and he is, accordingly, sentenced to an indeterminate imprisonment term of from Nine (9) years and Four (4) months of prision mayor as minimum to Sixteen (16) years, Five (5) months and Nine (9) days of reclusion temporal as maximum. He shall, pursuant to current jurisprudence, pay the heirs of the victim the amounts of Fifty Thousand Pesos (P50,000.00) by way of indemnity for the killing, Six Thousand Four Hundred Pesos (P6,400.00) as actual damages and Fifty Thousand Pesos (P50,000.00) as moral damages. The forfeiture ordered by the trial court of the fan knife used in the killing is sustained. Cost against appellant.
Narvasa, C.J., Regalado, Davide Jr., Romero, Bellosillo, Melo, Puno, Kapunan, Mendoza, Fransisco, Panganiban, Martinez, Quisumbing, and Purisima, JJ., concur.
 Records, p. 49.
 TSN, 07 February 1995, . 4.
 TSN, 01 August 1995, p. 8.
 Autopsy Report, Exh. H, Records, p. 7.
 TSN, 15 February 1995, pp. 3-6.
 Rollo, p. 36.
 Rollo, p. 62.
 People vs. Hubilla, Jr., 252 SCRA 471.
 People vs. Gutual, 254 SCRA 37.
 People vs. Tuson, 261 SCRA 711.
 People vs. Patotoy, 261 SCRA 37.
 TSN, 07 February 1995, pp. 2-5.
 People vs. Prado, 254 SCRA 531.
 People vs. Lapura, 255 SCRA 85.
 People vs. Gomez, 251 SCRA 455.
 People vs. Alba, 256 SCRA 505.
 TSN , 07 February 1995, pp. 8-9.
 People vs. Luayon, 260 SCRA 739.
 People vs. Ruelan, 231 SCRA 650.
 People vs. Escoto, 244 SCRA 87.
 TSN, 27 February 1995, pp. 12-13.
 TSN, 19 May 1995, pp. 6-8.
 People vs. Rosario, 246 SCRA 658.