Page 1 of 15 Physical Injuries FIRST DIVISION G.R. Nos.

149430-32 February 23, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. C R!ELO C T" G N, appellant. DECISION P NG NI" N, J.: There can be no self-defense, whether co plete or !nco plete, "nless the v!ct! a##ress!on a#a!nst the person who resorted to self-defense. T#e Case Car elo Catba#an appeals the $a% &', &''' Dec!s!on& of the Re#!onal Tr!al Co"rt (RTC) of $alolos, *"lacan (*ranch +&), !n Cr! !nal Case Nos. &,-+-$-'-, &,-.-$-'- and &,''-$-'-. In these cases, he was conv!cted of ho !c!de, "rder and fr"strated "rder, respect!vel%. The decretal port!on of the RTC Dec!s!on reads as follows/ 0In s" and cons!der!n# the fore#o!n# f!nd!n#s, the Co"rt hereb% resolves and so states that the defense has not been able to overco e the oral certa!nt% establ!shed "pon the acc"sed1s c"lpab!l!t%. Stated otherw!se, the prosec"t!on has s"ccessf"ll% d!schar#ed !ts "nderta2!n# here!n. 3ccord!n#l%, th!s Co"rt f!nds and so holds that acc"sed Car elo Catba#an !s 45I6T7 be%ond reasonable do"bt of the cr! es of 8o !c!de !n Cr! . Case No. &,-+-$-'-, $"rder !n Cr! . Case No. &,9-:.-$-'- and Fr"strated $"rder !n Cr! . Case No. &,''-$-'-. 0In Cr! !nal Case No. &,-+-$-'-, the Co"rt hereb% cred!ts the acc"sed w!th the !t!#at!n# c!rc" stance of !nco plete self-defense p"rs"ant to 3rt!cle &., para#raph & of the Rev!sed ;enal Code. In wh!ch event, what sho"ld be ! posable as penalt% !s the !n! " of Recl"s!on Te poral. Cons!der!n# the appl!cat!on of the Indeter !nate Sentence 6aw, acc"sed Car elo Catba#an !s hereb% sentenced to s"ffer the !ndeter !nate pr!son ter of ten (&,) %ears and one (&) da% of ;r!s!on $a%or a<! " to fo"rteen (&=) %ears of Recl"s!on Te poral !n! " . 0In Cr! !nal Case No. &,-.-$-'-, absent an% c!rc" stance that wo"ld a##ravate the co !ss!on of the cr! e, the acc"sed !s sentenced to s"ffer the penalt% of Recl"s!on ;erpet"a to#ether w!th the accessor% penalt!es. 0In Cr! !nal Case No. &,''-$-'-, s!nce the cr! e co !tted !s $"rder !n !ts fr"strated sta#e, !t !s the penalt% ne<t lower !n de#ree that sho"ld be ! posed, wh!ch !s Recl"s!on Te poral. 8owever, w!th the appl!cat!on of the Indeter !nate Sentence 6aw, acc"sed Car elo Catba#an !s hereb% sentenced to s"ffer the !ndeter !nate pr!son ter of ten (&,) %ears of ;r!s!on $a%or ed!" to f!fteen (&>) %ears of Recl"s!on Te poral ed!" . 0In add!t!on to the fore#o!n#, the acc"sed !s also d!rected to pa% the he!rs of deceased Celso S"!co the s" of;>,,,,,,.,, !n loss of earn!n# capac!t%, ;>,,,,,.,, as !nde n!t% for S"!co1s death, and the f"rther s" of;&,,,,,,.,, as and for oral da a#es. ?!th respect to deceased Dan!lo 6ap!dante, the acc"sed !s ordered to pa% h!s he!rs the s" ;=,,,,,,.,, !n loss of earn!n# capac!t%, the s" of ;>,,,,,.,, as !nde n!t% for 6ap!dante1s death, the s" of ;&,,,,,,.,, as oral da a#es, and also the a o"nt of ;>,,,,,.,, < < < for act"al da a#es. F!nall%, respect!n# co pla!nant Ernesto 6acaden, the acc"sed !s d!rected to pa% h! the s" of ;>,,,,,.,, as and for oral da a#es and the s" of ;@,=,,.-@ as act"al da a#es. 0?!th costs a#a!nst the acc"sed.0+ had co !tted "nlawf"l

Page 2 of 15 Physical Injuries E<cept for the na es of the v!ct! s, two (+) s! !larl% worded cr! !nal Infor at!ons . !n Cr! !nal Case Nos. &,-+$-'-= and &,-.-$-'-,> both dated A"l% +&, &''-, char#ed appellant as follows/ 0That on or abo"t the &>th da% of $arch, &''-, !n the 9$:"n!c!pal!t% of San Aose del $onte, 9;:rov!nce of *"lacan, ;h!l!pp!nes, and w!th!n the B"r!sd!ct!on of th!s 8onorable Co"rt, the above-na ed acc"sed, ar ed w!th a #"n, cal!ber .'$$ p!stol, and w!th !ntent to 2!ll one < < <, d!d then and there w!lf"ll%, "nlawf"ll% and felon!o"sl%, w!th ev!dent pre ed!tat!on and treacher%, attac2, assa"lt and shoot w!th the sa!d cal!ber .'$$ p!stol sa!d < < <, h!tt!n# the latter on the d!fferent parts of h!s bod%, thereb% !nfl!ct!n# "pon h! ortal wo"nds wh!ch d!rectl% ca"sed the death of the sa!d < < <.0@ For the th!rd cr! e, the Infor at!on,C also dated A"l% +&, &''-, char#ed appellant w!th fr"strated alle#edl% co !tted !n th!s anner/ "rder

0That on or abo"t the &>th da% of $arch, &''-, !n the 9$:"n!c!pal!t% of San Aose del $onte, 9;:rov!nce of *"lacan, ;h!l!pp!nes, and w!th!n the B"r!sd!ct!on of th!s 8onorable Co"rt, the above-na ed acc"sed, ar ed w!th a cal!ber . '$$ p!stol, d!d then and there w!lf"ll%, "nlawf"ll% and felon!o"sl%, w!th !ntent to 2!ll, ev!dent pre ed!tat!on and treacher%, attac2, assa"lt and shoot w!th the sa!d cal!ber .'$$ p!stol one Ernesto 6acaden % Tacata, thereb% !nfl!ct!n# "pon h! ph%s!cal !nB"r!es, wh!ch ord!nar!l% wo"ld have ca"sed the death of the sa!d Ernesto 6acaden % Tacata, th"s perfor !n# all the acts of e<ec"t!on wh!ch sho"ld have prod"ced the cr! e of "rder as a conseD"ence, b"t nevertheless d!d not prod"ce !t b% reason of ca"ses !ndependent of h!s w!ll, that !s, b% the t! el% and able ed!cal ass!stance rendered to sa!d Ernesto 6acaden % Tacata wh!ch prevented h!s death.0 3ppellant was arra!#ned on 3"#"st +@, &''- !n Cr! !nal Case Nos. &,-+-$-'- and &,-.-$-'-. ?!th the ass!stance of co"nsel de of!c!o,' he pleaded not #"!lt% to both char#es.&, Thereafter, he was arra!#ned !n Cr! !nal Case No. &,''-$-'-, !n wh!ch, w!th the ass!stance of h!s co"nsel de of!c!o, && he also pleaded not #"!lt%.&+ 5pon ot!on of appellant, the three cases were consol!dated. 3fter pretr!al, tr!al on the er!ts ens"ed, and the lower co"rt event"all% pro "l#ated !ts assa!led Dec!s!on. Co"nsel &. for appellant f!led the Not!ce of 3ppeal&= on A"l% >, &''', b"t "pon d!scover!n# that !t conta!ned an error !n the des!#nat!on of the co"rt to wh!ch the case was be!n# appealed, he f!led an a ended Not!ce of 3ppeal on Septe ber &,, &'''. &> T#e Fa$%s Version of the Prosecution In !ts *r!ef,&@ the Off!ce of the Sol!c!tor 4eneral (OS4) presents the prosec"t!on1s vers!on of the facts as follows/ 0Dan!lo 6ap!dante, an e plo%ee of the $an!la ?ater Co pan%, held h!s b!rthda% part% on $arch &>, &''-, one da% !n advance of h!s act"al b!rthdate. That was !ntended to acco odate h!s an% relat!ves and fr!ends who trooped to h!s res!dence that S"nda% at *loc2 >, 6ot +-, ;hase C-& Franc!sco 8o es, *aran#a% $"law!n, San Aose del $onte, *"lacan ;rov!nce. 3s !t was alread% s" ert! e, and on acco"nt of the b!# attendance, the part% had to be held !n a vacant space w!th!n the fenced per! eter, w!th veh!c"lar and pedestr!an steel #ates. In front thereof was a narrow concrete street. 0Inas "ch as 6ap!dante saw to !t that dr!n2s l!2e #!n and beer and appet!Eers were plent%, even before &,/,, 3.$., !nev!tabl%, the revelers were alread% d!spla%!n# e<c!te ent. So e were en#a#ed !n s!n#!n# over a F2arao2e,1 wh!le one S#t. Celso S"!co of the ;h!l!pp!ne 3!r Force and of the el!te ;res!dent!al Sec"r!t% 4ro"p, who l!ved !n another phase of the s"bd!v!s!on, de onstrated h!s e<"berance b% f!r!n# shots !nto the a!r w!th h!s 3r al!te r!fle. S!nce the #"nshots cont!n"ed to r!n# o"t, and elect!on #"n ban was then !n effect, the attent!on of Car elo Catba#an, an !nvest!#ator of the Cr! !nal Invest!#at!on Serv!ce, ;h!l!pp!ne Nat!onal ;ol!ce, whose res!dent!al "n!t was B"st one bloc2 awa% so"th of the 6ap!dantes, was called. 0?hen, b% >/,, p. ., Catba#an went there to ver!f% fro the #ro"p who a on# the had been f!r!n# the r!fle, no one of those w!th!n the fenced area #ave a pos!t!ve answer. The e bar9r:assed Catba#an left the place. Co!nc!dentall%, so e !n"tes before that, 6ap!dante, dr!v!n# h!s owner-t%pe Beep, cond"cted ho e so e of h!s #"ests. 3cco pan%!n# h! were S#t. S"!co and h!s co pan!on Ernesto FA"n1 6acaden. Even as the% ret"rned the

Page 3 of 15 Physical Injuries 3r al!te to the ;S41s res!dence at ;hase $, S"!co s"bst!t"ted !t w!th a #overn ent-!ss"ed Spr!n#f!eld .=> cal!ber p!stol wh!ch he t"c2ed to h!s wa!stband as the% went bac2 to reBo!n the part%. 0*% abo"t >/., p. ., wh!le the celebrants were be!n# enterta!ned w!th a son# b% the eldest da"#hter of 6ap!dante, Catba#an w!th 9Gos! o: (Aess) Fabab!er ret"rned to 6ap!dante1s place on board a otor!Eed tr!c%cle. Th!s t! e, after he al!#hted on the street !n front, when Catba#an !nD"!red abo"t the #"nshots of the 3r al!te, S#t. S"!co answered that FIt1s noth!n#H !t1s B"st a part of the celebrat!on1. S"ddenl%, a p!ece of stone h"rled fro the d!rect!on of the celebrant1s ho"se landed on a tree and thence to the bod% of Catba#an. Irr!tated and react!n# thereto, the CIS a#ent d!rected Fabab!er to loo2 for the one who threw the stone. 03t that o ent, S#t. S"!co #ot o"t of the pedestr!an steel #ate and e<tended h!s hand towards Catba#an !n the street as he !ntrod"ced h! self as be!n# a ;S4. Co pletel% !#nor!n# the #est"re of the latter, Catba#an drew o"t h!s .' a"to at!c p!stol and w!th both hands hold!n# the #"n, f!red s"ccess!vel% at S"!co, who when h!t stretched o"t h!s hand, sho"t!n# F8"wa# (Don1t) ;are.1 Desp!te th!s Catba#an f!red ore shots at the v!ct! who fell on the pave ent, blood!ed and d%!n# fro ortal wo"nds. 03s the shots were f!red, A"n 6acaden who was ta2!n# a nap on the front seat of the owner-t%pe Beep par2ed on the other s!de of the street, !n front of the res!dent!al "n!t of 3!da V!llan"eva, was abr"ptl% awa2ened. Not f"ll% aware of what happened, he d!se bar2ed therefro w!tho"t 2now!n# what to do. 5ne<pectedl%, two shots were also f!red at h! b% Catba#an. One b"llet fo"nd !ts ar2 !n the bod% of A"n 6acaden who then fell down. 03l ost s! "ltaneo"sl%, Catba#an d!rected h!s attent!on to 6ap!dante who was then !ns!de the!r co po"nd !n the v!c!n!t% of the!r steel a!n #ate. 5pon the pro pt!n# of h!s w!fe Ros!ta for h! to r"n and evade the assa!lant, the celebrant t"rned towards the a!n door of the!r ho"se. *"t before he co"ld reach the safet% of the!r abode, two rap!d shots were a! ed b% Catba#an at h! , one of wh!ch h!t h! !n the "pper part of h!s bod%. 03fter ca"s!n# the a%he , Catba#an then proceeded eastward to the a!n road. There"pon, Charles 6acaden p!c2ed "p the weapon of the ;S4 an and threw !t to a vacant lot so ewhere at the rear of the ho"se and lot of 6ap!dante. 3s a conseD"ence of the !nB"r!es the% s"sta!ned, S#t. S"!co d!ed on the spotH 6ap!dante later d!ed !n the hosp!tal !n 6a#ro, I"eEon C!t%H whereas A"n 6acaden had to be treated and conf!ned at the East 3ven"e $ed!cal Center, I"eEon C!t%. 0;ol!ce !nvest!#ators went to the scene and there recovered so e p!eces of ev!dence. The .=> cal!ber Spr!n#f!eld p!stol of S"!co was retr!eved !n a place at the bac2 of the 6ap!dante res!dence. ?!th a b"llet vert!call% stand!n# on the cha ber, !t had !sf!red d"e to so e v!tal defects. There were s!< (@) l!ve a "n!t!ons of the .=> cal!ber p!stol e<cl"d!n# the vert!cal one. No e pt% shell of .=> cal!ber p!stol were recovered. There were n!ne (') e pt% shells of the .' p!stolH and a defor ed sl"# of the sa e weapon, as!de fro an% shells fro the 3r al!te r!fle. 05pon e<a !nat!on of S#t. S"!co1s bod%, Dr. Do !n!c 3#"da of the Nat!onal *"rea" of Invest!#at!on fo"nd fo"r (=) #"nshot wo"nds, to w!t/ No. & - left "pper chestH No. + - left chest above left n!ppleH No. . - left anter!or port!on of forear H No. = - r!#ht pal (!ns!de) 0Dr. 3#"da concl"ded that the v!ct! d!ed fro ass!ve bleed!n# of the fo"r !nB"r!es. The ost fatal was wo"nd No. & as !t perforated the aorta and the r!#ht "pper l"n#. Death therefro was !nstantaneo"s. 8e op!ned that th!s wo"nd was !nfl!cted !n a level fro a h!#her plane, whereas the others a% have been !nfl!cted on so e level w!th the v!ct! . S"!co d!ed of ass!ve bleed!n#. 03s re#ards the v!ct! 6ap!dante, as shown b% Dr. 3#"da1s sche at!c s2etch and the post- orte a"tops% report, the entr% wo"nd was at the left s!de of the bac2, e<!t!n# at the r!#ht anter!or port!on of the chest !n a forward and "pward traBect!on. The b"llet h!t the "pper left t"be of the left l"n# and then penetrated the "pper lobe of the r!#ht l"n#. The v!ct! also d!ed fro ass!ve bleed!n#.

Page 4 of 15 Physical Injuries 0Fro the shapes and eas"re ent of the wo"nd of entr%, Dr. 3#"da stated that the (weapon) f!rear the shoot!n# of the two v!ct! s were probabl% the sa e, the% be!n# appro<! atel% & < & c . "sed !n

0?!th respect to A"n 6acaden, Dr. Cr!st!na 3t!enEa of the East 3ven"e $ed!cal Center fo"nd that he was h!t at the r!#ht s!de of the bac2, the scap"lar and the b"llet e<!ted at the "pper ost part of the left ar , near the ar p!t. She sa!d that as the sl"# entered the thorac!c cav!t%, the% had to !nsert a t"be to evac"ate blood. Sa!d v!ct! was conf!ned for ore than one wee2, and !t wo"ld have ta2en another ., da%s for the v!ct! to res" e h!s "s"al act!v!t%.0&C Version of the Defense 3ppellant ar#"es that he was B"st!f!ed !n shoot!n# the v!ct! s, as he was erel% defend!n# h! self and f"lf!ll!n# h!s sworn d"t!es. On the bas!s of these B"st!f%!n# c!rc" stances, he !ns!sts on h!s acD"!ttal. In h!s *r!ef, &- he s" ar!Ees h!s vers!on of the facts as follows/ 0The defense had a d!fferent vers!on of the c!rc" stances that led to the shoot!n# !nc!dent on $arch &>, &''-. On sa!d date, between '/,, and &&/,, !n the orn!n#, ERNESTO P&R"OS heard s"ccess!ve #"nshots co !n# fro the res!dence of Dan!lo 6ap!dante at San Franc!sco 8o es, San Aose del $onte, *"lacan. The #"nshots n" bered abo"t ten (&,) !n the span of two (+) ho"rs. 3lar ed and scared, as there were ch!ldren then pla%!n# !n the v!c!n!t%, he went to the ho"se of Car elo Catba#an to report the #"n f!r!n# !nc!dent. 8e pleaded Catba#an, 2nown !n the!r place as a pol!ce an, to a!nta!n the peace !n the ne!#hborhood. 8e was worr!ed that the ch!ldren !#ht be h!t acc!dentall% b% the revelr%. Catba#an retorted not to !nd the revelers, as the% were B"st dr!n2!n#. 8e then went ho e. 03t aro"nd =/,, !n the afternoon, he a#a!n heard s"ccess!ve #"nshots co !n# fro the ho"se of the 6ap!dantes. The #"nshots were lo"der and rap!d !n s"ccess!on. Fear!n# for the safet% of the ch!ldren pla%!n# !n the v!c!n!t%, he a#a!n proceeded to the ho"se of Catba#an, plead!n# the latter to pac!f% or a!nta!n order !n the place. Catba#an repl!ed that he wo"ld call the attent!on of the *aran#a% Capta!n and adv!sed h! to #o ho e. 0'OSI!O P ( "IER corroborated the test! on% of w!tness Ernesto ;"rbos. On $arch &>, &''-, between the ho"rs of '/,, and past &&/,, !n the orn!n#, he heard several #"nshots co !n# fro the ho"se of Dan!lo 6ap!dante. The reverberat!n# #"nshots were a#a!n heard at aro"nd =/,, !n the afternoon, pro pt!n# h! to #o o"t to the street to observe the co ot!on. In the street, he saw ch!ldren pla%!n# as well as a #ro"p of h!s ne!#hbors tal2!n# abo"t the #"nshots co !n# fro the ho"se of the 6ap!dantes. The ne!#hbors were co pla!n!n# that the ch!ldren !#ht be acc!dentall% h!t and that there was a #"nban. On h!s wa% ho e, he et Car elo Catba#an, who as2ed !f he wo"ld acco pan% h! to the baran#a% capta!n to report the !nc!dent. Catba#an was then l! p!n# and there was so eth!n# b"l#!n# !n h!s wa!st. The% proceeded to the ho"se of the baran#a% capta!n onboard a tr!c%cle. 5pon reach!n# the place, the w!fe of the baran#a% capta!n !nfor ed the that her h"sband left for the pol!ce prec!nct and !nstr"cted the to proceed to the ho"se of the 6ap!dantes as the baran#a% capta!n !#ht be alread% there. Catba#an then told h! to proceed to the baran#a% hall to call "pon the tanods, b"t the place was closed. The% then proceeded to the ho"se of Dan!lo 6ap!dante. 03t the res!dence of the 6ap!dantes, the% fo"nd several persons en#a#ed !n a dr!n2!n# sess!on. Catba#an then !ntrod"ced h! self as a CIS and !nD"!red who f!red the f!rear . The err% a2ers !#nored Catba#an and cont!n"ed the!r err% a2!n#. Seconds later, so ebod% threw a f!st s!Eed stone at Catba#an, h!tt!n# the lat9t:er on the sho"lder. The stone ca e fro the s!de of the 2!tchen of the 6ap!dantes. Catba#an d!rected h! to f!nd o"t who threw the stone. 3fter he had ta2en f!ve steps, he saw Dan!lo 6ap!dante e er#e fro the s!de of the 2!tchen, r"sh!n# towards Catba#an. 3bo"t the sa e o ent, A"n 6acaden and Celso S"!co were l!2ew!se proceed!n# towards the #ate. 6acaden then went on the s!de of Catba#an, who was stepp!n# bac2ward, wh!le S"!co, "tter!n# that he !s a ;S4, drew h!s .=> cal!ber p!stol and coc2ed !t. Inst!nct!vel%, Catba#an drew h!s #"n and f!red at S"!co, h!tt!n# the latter w!th three shots. 6acaden, who was attac2!n# Catba#an fro the s!de, was shot b% the latter once. See!n# what happened to h!s co pan!on, Dan!lo 6ap!dante h"rr!edl% retreated towards h!s ho"se, sho"t!n# repeatedl% Fa2!na !%on# ahaba1. Catba#an ade one shot "pward, %ell!n# at 6ap!dante, Fpare, pare, h"wa# 2an# tata2bo1. 3s 6ap!dante cont!n"ed proceed!n# towards h!s ho"se, Catba#an f!red at h! once. Ta2en abac2 b% the s"dden t"rn of events, he retreated towards h!s ho"se and B"st peeped over the w!ndow. 8e then saw Catba#an r"sh!n# towards h!s own ho"se, #ather h!s ch!ldren and leave. 3t aro"nd @/., !n the even!n#, he was p!c2ed-"p b% pol!ce a"thor!t!es for !nvest!#at!on.

Page 5 of 15 Physical Injuries 0)ON TH N "ELLOSILLO, the *aran#a% capta!n of *aran#a% $"law!n, Franc!sco 8o es San Aose del $onte, *"lacan, conf!r ed that a co pla!ntJreport was ade b% Car elo Catba#an at h!s ho e off!ce, anent a #"nf!r!n# !nc!dent, at aro"nd =/., !n the afternoon of $arch &>, &''-. The *aran#a% Capta!n l!2ew!se test!f!ed on the several co pla!nts he rece!ved a#a!nst Dan!lo 6ap!dante, for cond"ct!n# #a bl!n# and A"n 6acaden, for a"l!n# !nc!dents. 0The acc"sed, C R!ELO C T" G N, test!f%!n# on h!s behalf, averred that he !s a re#"lar a#ent of the Cr! !nal Invest!#at!on and Detect!on 4ro"p (CID4), w!th a ran2 of Cr! e Invest!#ator I. 3s a re#"lar a#ent of the CID4, he was !ss"ed two (+) off!c!al f!rear s, a '$$ Aer!cho p!stol and a..- cal!ber revolver. 8!s pr!nc!pal d"t!es were to protect the !nnocent a#a!nst decept!on, 9and: a#a!nst v!olence, arrest felons, and !n #eneral, to respond to all calls for p"bl!c ass!stance. 0On $arch &>, &''-, he was at h!s res!dence at *loc2 >, 6ot &&, ;hase @-&, Franc!sco 8o es, San Aose del $onte, *"lacan, tend!n# to h!s f!ve (>) ch!ldren. 8!s w!fe was then !n the prov!nce. 3t aro"nd '/,, to &&/,, !n the orn!n#, he heard several b"rst9s: of #"nf!re co !n# fro the d!rect!on of the rear port!on of h!s ho"se. 3 ne!#hbor, Ernesto ;"rbos, then ca e to h!s ho"se co pla!n!n# abo"t the #"nshots. F$anon# Ern!n#1 wa!led that the #"nshots !#ht acc!dentall% h!t the ch!ldren pla%!n# !n the street. 8av!n# told fro where the #"nshots ca e fro , he pac!f!ed the co pla!nant tell!n# h! that the revelers were B"st en#a#ed !n err% a2!n# and that the% w!ll B"st stop later on. Ernesto ;"rbos then went ho e. 0The peace !n the v!c!n!t% was a#a!n d!st"rbed at aro"nd =/,, !n the afternoon of the sa e da%. 6o"d b"rst of rap!d #"nshots, to the t"ne of the son# F6et1s 4o1, were a#a!n heard co !n# fro the sa e d!rect!on as that !n the orn!n#. Fro h!s e<per!ence, he 2new that the f!rear "sed was an ar al!te ($-&@). Two of the!r ne!#hbors ca e to h! co pla!n!n# abo"t the #"nshots. 8e adv!sed the to #o to the baran#a% capta!n and he w!ll B"st follow after f!n!sh!n# h!s chores. 8e then heard a wo an screa , co pla!n!n# that the shots were be!n# d!rected towards the f!rewall of the ho"se ne!#hbor!n# that of the 6ap!dantes. Ernesto ;"rbos l!2ew!se ret"rned, echo!n# h!s prev!o"s co pla!nt abo"t the #"nshots. 8e ass"red ;"rbos that he wo"ld act on h!s co pla!nt, b"t f!rst he wo"ld #o to the baran#a% capta!n to report the !nc!dent. 8e then #ot h!s serv!ce f!rear and went o"t. On h!s wa% to the ho"se of the baran#a% capta!n, he et Gos! o ;avab!er, who l!2ew!se co pla!ned of the #"nshots. 8e as2ed ;avab!er to acco pan% h! and the two of the proceeded to the ho"se of the sa!d off!c!al. ?hen the% reached the!r dest!nat!on, however, the w!fe of the baran#a% off!c!al told the that her h"sband has #one to the ;ol!ce on the *loc2 8eadD"arter. 6earn!n# the p"rpose of the!r v!s!t, the w!fe told the to B"st proceed to the v!c!n!t% !n D"est!on as her h"sband !#ht alread% be there. On the!r wa%, the% went b% the baran#a% hall to fetch so e Ftanods1, b"t the place was closed. The% then proceeded to the ho"se of the 6ap!dantes. 05pon reach!n# the ho"se of the 6ap!dantes, Catba#an and ;avab!er not!ced that the *aran#a% Capta!n was not %et there. The% l!2ew!se not!ced that there were several persons hav!n# a dr!n2!n# spree !ns!de the co po"nd. Catba#an !ntrod"ced h! self as a CIS and !nD"!red "pon the #ro"p who f!red the #"nshots. The err% a2ers, however, !#nored h! and la"#hed. 3s he was tell!n# the #ro"p that/ FDon1t %o" 2now there are an% res!dents here and %o" !#ht h!t so ebod%1, a f!st s!Eed stone was thrown wh!ch h!t h!s left sho"lder. The stone ca e fro the rear of the ho"se of the 6ap!dantes. 3lerted b% the host!l!t% of the crowd, he !nstr"cted ;avab!er to loo2 for the one who threw the stone at h! . 3s ;avab!er was abo"t to co pl% w!th h!s !nstr"ct!ons, Dan!lo 6ap!dante e er#ed fro the s!de of h!s ho"se and r"shed to where he was stand!n#, "tter!n#/ Fano ba an# proble a pareK1 3bo"t the sa e t! e, two ore persons s"ddenl% ca e o"t of the co po"nd of the 6ap!dantes, r"sh!n# and enc!rcl!n# h! . One of the a##ressors, Ernesto 6acaden, was tot!n# an !ce-p!c2 on one hand and pos!t!oned h! self at h!s s!de. The other, whose !dent!t% he d!d not 2n9o:w at that o ent, went stra!#ht to h! , drew a #"n fro h!s wa!st and coc2ed !t, after wh!ch, a! ed the p!stol at h! , "tter!n# F;are ;S4 !to1, !n an arro#ant vo!ce. Threatened of h!s safet%, he drew h!s own #"n wh!le stepp!n# bac2ward and f!red at the a##ressors. 0S! "ltaneo"sl%, Dan!lo 6ap!dante retreated towards h!s ho"se, sho"t!n#/ F32!na %"n# ahaba, %"n# ahaba1, wh!le A"n 6acaden attac2ed h! co !n# fro the s!de, w!th the !ce-p!c2. Catba#an s!de stepped and f!red a shot at 6acaden before t"rn!n# h!s attent!on at 6ap!dante. 8e f!red a warn!n# shot, "tter!n#/ FT" !#!l 2a, h"wa# 2an# 2!2!los1. 6ap!dante, however, d!d not heed Catba#an1s warn!n# and cont!n"ed r"sh!n# towards h!s ho"se, as !f to #et so eth!n#. Fear!n# that 6ap!dante !#ht be able to #et hold of the lon# #"n, Catba#an f!red a shot at h! once.

Page 6 of 15 Physical Injuries 0Concerned for h!s safet% and that of h!s fa !l%, Catba#an bro"#ht h!s f!ve ch!ldren to the ho"se of h!s s!ster !n $alabon, $etro $an!la. 8e then s"rrendered h! self and h!s f!rear s to h!s s"per!or off!cer at the CID4 Off!ce. 0 TT*. (IRGILIO P "LICO * T " L" , Ch!ef of the CID4 6e#al Off!ce and ! ed!ate s"per!or of the acc"sed, test!f!ed on the latter1s off!c!al d"t!es and f"nct!ons as well as h!s vol"ntar% s"rrender on $arch &@, &''-9.: 3ccord!n#l%, acc"sed Car elo Catba#an was appo!nted as a re#"lar and non-or#an!c e ber of the CID4, w!th a ran2 of Cr! !nal Invest!#ator I. 8!s off!c!al f"nct!ons !ncl"de the a"thor!t% to cond"ct !nvest!#at!on of cases !nvolv!n# v!olat!ons of the Rev!sed ;enal Code and other spec!al laws, to effect arrest and to cond"ct search !n accordance w!th e<!st!n# r"les, to ta2e sworn state ents and to appear as a w!tness !n appropr!ate for" . 3s a re#"lar a#ent, Catba#an was !ss"ed and a"thor!Eed to carr% a f!rear . The !ss"ed f!rear to Catba#an was a '$$ Aer!cho p!stol, w!th Ser!al No. ,,,C=-. Catba#an, as a CID4 a#ent, was l!2ew!se dep"t!Eed b% the CO$E6EC and #ranted an e<e pt!on to carr% f!rear d"r!n# elect!on per!od. 0On $arch &>, &''-, at aro"nd -/,, to &,/,, !n the even!n#, he rece!ved a telephone call fro 3#ent Catba#an, !nfor !n# h! that he was !nvolved !n a shoot!n# !nc!dent, where!n he was able to shoot three (.) persons. Two (+) of the prota#on!sts alle#edl% d!ed and the other was wo"nded and ta2en to a hosp!tal. Catba#an !nt! ated that he wanted to be p"t "nder h!s c"stod% as soon as he ade arran#e ents for h!s ch!ldren1s sec"r!t%. On $arch &@, &''-, at aro"nd &/,, !n the afternoon, Catba#an presented h! self to ;ol!ce S"per!ntendent Ed#ardo 3c"La to#ether w!th h!s serv!ce f!rear .0&' Ru+,-. o/ %#e Tr,a+ Cour% The RTC held that appellant d!d not 2now who had f!red the #"nshots at 6ap!dante1s part%H th"s, he co"ld not cla! that he had #one there to perfor h!s d"t% to a2e an arrest. ConseD"entl%, !t br"shed as!de h!s defense of f"lf!ll ent of d"t%, or lawf"l e<erc!se of a r!#ht or off!ce. It d!d not #!ve credence, e!ther, to h!s !nvocat!on of self-defense. ?!th respect to Celso S"!co !n Cr! !nal Case No. &,-+-$-'-, the tr!al co"rt r"led that there was "nlawf"l a##ress!on on the part of the v!ct! , b"t that the eans e plo%ed to repel s"ch a##ress!on was "nreasonable. It 0enterta!n9ed: ser!o"s do"bts on the r!#ht of the 9appellant: to cont!n"e f!r!n# at S"!co after the latter was d!spossessed of h!s #"n d"e to the !nB"r!es rece!ved fro the #"nf!re of the assa!lant.0 +, It cred!ted appellant w!th !nco plete self-defense, beca"se he s"pposedl% lost the r!#ht to 2!ll or even wo"nd the v!ct! after the "nlawf"l a##ress!on had ceased. The RTC ref"sed to D"al!f% the cr! e a#a!nst S"!co. R"l!n# that there had been no ev!dent pre ed!tat!on and treacher% !n the 2!ll!n#, !t fo"nd appellant #"!lt% onl% of the cr! e of ho !c!de. 3s re#ards the v!ct! Dan!lo 6ap!dante !n Cr! !nal Case No. &,-.-$-'-, he was "nd!sp"tedl% "nar ed, as he was !ns!de h!s own pre !ses -- w!th!n h!s fenced front %ard -- at the t! e of the !nc!dent. Th"s, the lower co"rt fo"nd no act of a##ress!on on h!s part. It held that 0the bel!ef on the part of 9appellant: that the v!ct! was abo"t to retr!eve a r!fle fro the doors!de of the ho"se, e<!sted onl% !n h!s ! a#!nat!on.0 +& ConseD"entl%, 0there was no o ent for 9appellant: to val!dl% state that h!s own l!fe 9was: !n ! !nent dan#er fro 6ap!dante.0 ++ 3s!de fro reBect!n# self-defense, the tr!al co"rt also held that treacher% had attended the 2!ll!n#, beca"se the "nar ed v!ct! had "ne<pectedl% been shot wh!le h!s bac2 was towards appellant. F!nall%, !n Cr! !nal Case No. &,''-$-'-, the co"rt a D"o fo"nd that Ernesto 6acaden had been shot !n the bac2, apparentl% wh!le 0!n the act of flee!n# fro the f"r% of #"nf!re fro 9appellant:.0 +. It d!d not accept the alle#at!on that the v!ct! had been carr%!n# an !ce p!c2 at the t! e of the shoot!n#. Nonetheless, !t e<pla!ned that even !f he !ndeed had one at the t! e, he co"ld not have done an% real har to appellant who was B"st too far fro h! . 3bsent an% clear and conv!nc!n# proof that 6acaden co !tted "nlawf"l a##ress!on, self-defense -whether co plete or !nco plete -- co"ld not be apprec!ated. The RTC fo"nd the cr! e a#a!nst 6acaden to be D"al!f!ed b% treacher%, as he had not posed an% ! !nent dan#er to appellant. It r"led that treacher% was proven b% the follow!n# c!rc" stances/ (&) the fact that the v!ct! was r"nn!n# awa% fro the scene of the cr! eH and (+) appellant1s "se of h!s .' a"to at!c p!stol, a

Page 7 of 15 Physical Injuries lethal weapon "sed to wo"nd the for er1s v!tal or#ans. S!nce death d!d not ens"e b% reason of ca"ses !ndependent of the w!ll of appellant, the co"rt a D"o fo"nd h! #"!lt% of fr"strated "rder. 8ence, th!s appeal.+= T#e Issues *efore "s, appellant ass!#ns to the tr!al co"rt the follow!n# alle#ed errors for o"r cons!derat!on/ 0I The co"rt a D"o #ravel% erred !n f!nd!n# acc"sed-appellant Car elo Catba#an #"!lt% be%ond reasonable do"bt of the offenses char#ed !n Cr! !nal Case Nos. &,-+-$-'-, &,-.-$-'- and &,''-$-'-, respect!vel%. 0II The co"rt a D"o #ravel% erred !n fa!l!n# to r"le that acc"sed-appellant Car elo Catba#an acted !n the f"lf!ll ent of h!s sworn d"t!es andJor acted !n self-defense !n the co !ss!on of the offenses char#ed. 0III 4rant!n# ar#"endo that the acc"sed-appellant1s #"!lt was proven be%ond reasonable do"bt, the co"rt a D"o st!ll co !tted a revers!ble error !n not cons!der!n# the attendance of the !t!#at!n# c!rc" stance of vol"ntar% s"rrender !n the ! pos!t!on of the appropr!ate penalt!es for the offenses proved d"r!n# the tr!al.0+> In s" , the !ss"es to be resolved are as follows/ &) whether appellant was B"st!f!ed !n shoot!n# the v!ct! s as a d!rect res"lt of h!s 0f"lf!ll ent of a lawf"l d"t%0 and 0self-defense0H +) whether he co"ld be cred!ted w!th the !t!#at!n# c!rc" stance of vol"ntar% s"rrenderH and .) whether the character!Eat!on of the cr! es and penalt!es ! posed b% the tr!al co"rt was correct. T#e Cour%0s Ru+,-. The appeal !s partl% F,rs% Issue1 Fulfillment of a Lawful Duty In cr! !nal cases, the prosec"t!on has the b"rden of establ!sh!n# the #"!lt of the acc"sed be%ond reasonable do"bt. *"t once the co !ss!on of the act char#ed !s ad !tted, the b"rden of proof sh!fts to the acc"sed, who "st now prove the ele ents of the B"st!f%!n# c!rc" stances c!ted.+@ 3ppellant !nvo2es h!s lawf"l perfor ance of d"t% as one s"ch c!rc" stance, ar#"!n# that 0h!s presence at the scene of the !nc!dent, pro pted b% the co pla!nts !n the!r ne!#hborhood and h!s own personal 2nowled#e relat!ve to the wanton d!schar#e of a f!rear , the effect!v!t% of the elect!on #"n ban, h!s coord!nat!on w!th the a"thor!t!es of the baran#a%, and the !nD"!r% he ade to the revellers, were all !n consonance w!th the le#!t! ate perfor ance of a sworn d"t%.0+C C!t!n# these spec!f!c facts, he ar#"es that he was B"st!f!ed !n shoot!n# the v!ct! s. In effect, h!s content!on !s that, be!n# a re#"lar a#ent of the Cr! !nal Invest!#at!on and Detect!on 4ro"p (CID4) of the ;h!l!pp!ne Nat!onal ;ol!ce (;N;), he was B"st!f!ed !n a!nta!n!n# p"bl!c order, as well as !n protect!n# and sec"r!n# l!fe and propert%. 3ltho"#h he !s correct !n ar#"!n# that he had the le#al obl!#at!on to a!nta!n peace and order, he was not B"st!f!ed !n shoot!n# the v!ct! s. 3rt!cle && of the Rev!sed ;enal Code (R;C) prov!des that a person who acts !n the f"lf!ll ent of a d"t% or !n the lawf"l e<erc!se of a r!#ht or off!ce does not !nc"r an% cr! !nal l!ab!l!t%. Two reD"!s!tes "st conc"r before th!s defense can prosper/ &) the acc"sed "st have acted !n the perfor ance of a d"t% or !n the lawf"l e<erc!se of a r!#ht or off!ceH and +) the !nB"r% ca"sed or the offense co !tted sho"ld have been the necessar% conseD"ence of s"ch lawf"l e<erc!se.+These reD"!s!tes are absent !n th!s case. 3ppellant was not perfor !n# h!s d"t!es at the t! e of the shoot!n#, beca"se the en he shot had not been !nd!scr! !natel% f!r!n# #"ns !n h!s presence, as he alle#es. F"rther, as er!tor!o"s.

Page 8 of 15 Physical Injuries fo"nd b% the RTC, 0noth!n# was the tr!al co"rt/ ent!oned !n 9h!s: d!rect test! on% that he was there to effect an arrest.0 +' Sa!d

0?h!le he !#ht have heard of #"nf!re, s!nce there !s no proof to the effect that Catba#an had personal 2nowled#e that !t was S"!co who had been f!r!n# the 3r al!te, "nder no c!rc" stances a% !t be sa!d that the acc"sed was B"st!f!abl% there to perfor the d"t% of a2!n# the arrest !n accordance w!th e<!st!n# laws and r"les.0., 3t ost, appellant was !n the ho"se of the 6ap!dantes to deter !ne who had f!red the #"nshots that were heard b% the ne!#hborhood. *"t the fatal !nB"r!es that he !nfl!cted on the v!ct! s were not a necessar% conseD"ence of the perfor ance of h!s d"t% as a pol!ce off!cer. Indeed, h!s 0presence at the scene of the !nc!dent 9was: all !n the le#!t! ate perfor ance and f"lf!ll ent of a sworn d"t%.0.& 8e was d"t%-bo"nd to f!nd o"t who had f!red the #"n that da% and to a!nta!n peace and order !n the ne!#hborhood. *"t h!s act of shoot!n# of the v!ct! s cannot be B"st!f!ed. 8!s presence at the scene of the !nc!dent sho"ld be d!st!n#"!shed fro h!s act of shoot!n# the . 3ppellant c!tes ;eople v. Cabrera.+ to s"pport h!s ar#" ent that he was perfor !n# h!s d"t% and was th"s B"st!f!ed !n shoot!n# the v!ct! s. There !s an ! portant d!st!nct!on between the present case and Cabrera. In the latter, the d!st"rbance had been created b% the v!ct! !n the presence of the acc"sed, who therefore had the d"t% to ! ed!atel% !ntervene and s"bd"e the for er, who was ca"s!n# dan#er. In the present case, appellant had no personal 2nowled#e of who had f!red the #"nshots. Th"s, h!s d"t% at the t! e was s! pl% to deter !ne who was the s"bBect of the co pla!nts of the res!dents of the v!lla#e. It was never shown, tho"#h, that the shoot!n# was !n f"rtherance of or was a necessar% conseD"ence of h!s perfor ance of s"ch d"t%. To be s"re, the r!#ht to 2!ll an offender !s not absol"te, and a% be "sed onl% as a last resort, and "nder c!rc" stances !nd!cat!n# that the offender cannot otherw!se be ta2en w!tho"t bloodshed. The law does not clothe pol!ce off!cers w!th a"thor!t% to arb!trar!l% B"d#e the necess!t% to 2!ll. It a% be tr"e that pol!ce off!cers so et! es f!nd the selves !n a d!le a when press"red b% a s!t"at!on where an ! ed!ate and dec!s!ve, b"t le#al, act!on !s needed. 8owever, !t "st be stressed that the B"d# ent and d!scret!on of pol!ce off!cers !n the perfor ance of the!r d"t!es "st be e<erc!sed ne!ther capr!c!o"sl% nor oppress!vel%, b"t w!th!n reasonable l! !ts. In the absence of a clear and le#al prov!s!on to the contrar%, the% "st act !n confor !t% w!th the d!ctates of a so"nd d!scret!on, and w!th!n the sp!r!t and p"rpose of the law. .. Se$o-2 Issue1 Self-Defense 3ppellant also !nvo2es the pr!nc!ple of stand!n# one1s #ro"nd when !n the r!#ht. 3lle#edl%, s!nce he had the r!#ht to be where he was, 0the law does not reD"!re h! to step as!de when h!s assa!lant !s rap!dl% advanc!n# "pon h! w!th a deadl% weapon.0.= ?e clar!f%. 3rt!cle && of the R;C prov!des/ 03RT. &&. A"st!f%!n# c!rc" stances. M The follow!n# do not !nc"r an% cr! !nal l!ab!l!t%/ &. 3n%one who acts !n defense of h!s person or r!#hts, prov!ded that the follow!n# c!rc" stances conc"r/ F!rst. 5nlawf"l a##ress!onH Second. Reasonable necess!t% of the eans e plo%ed to prevent or repel !tH Th!rd. 6ac2 of s"ff!c!ent provocat!on on the part of the person defend!n# h! self.0 In self-defense, proof b% clear and conv!nc!n# ev!dence !s !nc" bent "pon the acc"sed. .> 3ppellant cannot rel% on the wea2ness of the ev!dence for the prosec"t!on, wh!ch can hardl% be d!sbel!eved after he h! self ad !tted that he had shot the v!ct! s..@ 3 B"d!c!al confess!on const!t"tes ev!dence of a h!#h order, on the pres" pt!on that no sane person wo"ld del!beratel% confess to the co !ss!on of an act "nless oved b% the des!re to reveal the tr"th..C 3s the RTC correctl% d!d, we sho"ld loo2 at the c!rc" stances of the shoot!n# !n the case of each v!ct! .

Page 9 of 15 Physical Injuries Circumstances Surrounding the Death of Suico The f!rst reD"!s!te of self-defense !s "nlawf"l a##ress!on b% the person who !s event"all% !nB"red or 2!lled b% the acc"sed. Th!s Co"rt !s conv!nced that the RTC1s f!nd!n# of "nlawf"l a##ress!on on the part of S"!co !s s"pported b% the records, and we see no reason to d!st"rb those f!nd!n#s. R"led the lower co"rt/ 05nder the #!ven s!t"at!on where!n the Ser#eant coc2!n# the p!stol was one who was tra!ned, and s2!lled !n the handl!n# of #"ns, pl"s the fact that he was dr"n2, the Co"rt cannot bla e acc"sed Catba#an to bel!eve and fear that S"!co wo"ld attac2 h! !n that oc2 !ntrod"ct!on.0 .The prosec"t!on presented, !n fact, confl!ct!n# acco"nts of how S"!co had been shot. The shoot!n# alle#edl% happened after he had offered a handsha2e to appellant, .' accord!n# to Ros!ta 6ap!dante, the w!fe of another v!ct! . On the other hand, Charl!e 6acaden, the brother of st!ll another v!ct! , #ave test! on% that confl!cted w!th hers. S"!co was alle#edl% shot b% appellant when the for er t"rned h!s bac2 to the latter. On the other hand, appellant=, and Defense ?!tness Gos! o ;avab!er=& pos!t!vel% and cons!stentl% test!f!ed that !t was S"!co who had f!rst drawn and a! ed h!s #"n at appellant. Th!s assert!on was conf!r ed b% the ph%s!cal ev!dence that the v!ct! 1s #"n had a l!ve b"llet sandw!ched between !ts breechbloc2 and cha ber. =+ Th!s fact proves that the #"n was coc2ed and f!red, b"t that the b"llet was Ba ed !n the process. The prosec"t!on tr!ed to e<pla!n th!s occ"rrence b% !ncons!stent and !ncon#r"o"s state ents. 3ccord!n# to the test! on% of Ros!ta, Charl!e too2 the #"n fro S"!co1s bell% then a! ed !t at appellant, b"t the #"n d!d not f!re beca"se !t was defect!ve.=. 3ccord!n# to the test! on% of Charl!e, on the other hand, he too2 the #"n beca"se he was afra!d that appellant wo"ld co e bac2, b"t that he later threw !t towards the rear port!on of the ho"se.== Th"s, the RTC concl"ded/ 03s re#ards the proof that S"!co1s #"n !sf!red d"e to v!tal defects !n !ts echan!s , the Co"rt s"spects that the f!rear was ta pered w!th to create the scenar!o that the ;S4 an was w!tho"t fa"lt. In fact, $rs. 6ap!dante and Charles 6acaden1s test! on!es re#ard!n# what was done to the #"n after the !nc!dent are !n confl!ct w!th each other.0=> (Ital!cs s"ppl!ed) 5nlawf"l a##ress!on !s an act"al ph%s!cal assa"lt, or at least a threat to !nfl!ct real ! !nent !nB"r%, "pon a person.=@ In case of threat, !t "st be offens!ve and stron#, pos!t!vel% show!n# the wron#f"l !ntent to ca"se !nB"r% -- as !n th!s case. Th"s, S"!co1s act of a! !n# a coc2ed #"n at appellant !s s"ff!c!ent "nlawf"l a##ress!on. The second ele ent of self-defense -- reasonable necess!t% of the eans e plo%ed to prevent or repel !t -reD"!res the follow!n#/ &) a necess!t% of the co"rse of act!on ta2en b% the person a2!n# the defense and +) a necess!t% of the eans "sed. *oth the co"rse of act!on ta2en and the eans "sed "st be reasonable. =C 3ppellant ar#"es that he was B"st!f!ed !n wo"nd!n# S"!co, beca"se the latter was ar ed w!th a deadl!er weapon and was st!ll pers!stentl% a##ress!ve after be!n# shot the f!rst t! e. The for er a!nta!ns that 09t:he fact that 9he: str"c2 one blow ore than 9what: was absol"tel% 9necessar%: to save h!s own l!fe, or that he fa!led to hold h!s hand so as to avo!d !nfl!ct!n# a fatal wo"nd where a less severe stro2e !#ht have served the p"rpose, wo"ld not 9ne#ate: self-defense, beca"se 9he:, !n the heat of an enco"nter at close D"arters, was not !n a pos!t!on to reflect cooll% or to wa!t after each blow to deter !ne the effects thereof.0 =The eans e plo%ed b% the person !nvo2!n# self-defense !s reasonable !f eD"!valent to the eans of attac2 "sed b% the or!#!nal a##ressor.=' ?hether or not the eans of self-defense !s reasonable depends "pon the nat"re or D"al!t% of the weapon, the ph%s!cal cond!t!on, the character, the s!Ee and other c!rc" stances of the a##ressorH as well as those of the person who !nvo2es self-defenseH and also the place and the occas!on of the assa"lt.>, The RTC ade a def!n!t!ve f!nd!n# on the "nreasonableness of the eans e plo%ed b% appellant as follows/

Page 10 of 15 Physical Injuries 08owever, what followed, as test!f!ed b% w!tnesses was that Catba#an cont!n"ed f!r!n# even wh!le S"!co was plead!n# F8"wa# pareN1 w!th o"tstretched hand and open pal of h!s r!#ht hand. ?h!le the acc"sed asserted that he had to f!re h!s #"n and h!t S"!co w!th ore shots to totall% d!sable h! , the sa e cannot be bel!eved b% the Co"rt, !f we ta2e stoc2 of Dr. 3#"da1s test! on% that w!th the !nB"red ar and that on the chest be!n# !nfl!cted w!th the f!rst Fdo"ble tap1 shotsH the v!ct! wo"ld have had "ch d!ff!c"lt% to retal!ate. In fact, Catba#an h! self stated on clar!f!cat!on D"est!ons that the .=> cal!ber #"n of the v!ct! fell alread% so that the threat of cont!n"ed a##ress!on was no lon#er present. <<< <<< <<<

0On th!s po!nt, the Co"rt enterta!ns ser!o"s do"bts on the r!#ht of the acc"sed to cont!n"e f!r!n# at S"!co after the latter was d!spossessed of h!s #"n d"e to the !nB"r!es rece!ved fro the #"nf!re of the assa!lant. 3dd!t!onall%, we cannot accept as cred!ble Catba#an1s state ent that he had to f!re a#a!n at S"!co !nas "ch as the latter had stooped act!n# to p!c2 "p h!s own p!stol fro the pave ent. If ever the v!ct! was pos!t!oned that wa%, !t was ore of the ! pact of the b"llets that h!t h! . The lo#!cal e<planat!on can be der!ved fro the presence of the entr% wo"nd !n the !ns!de of S"!co1s r!#ht pal .0 >& These f!nd!n#s are well-s"pported b% the ev!dence on record. Clearl%, the nat"re and the n" ber of #"nshot wo"nds -- deb!l!tat!n#, fatal and "lt!ple -- !nfl!cted b% appellant on the deceased shows that the eans e plo%ed b% the for er was not reasonable and co ens"rate to the "nlawf"l a##ress!on of the latter. The "nreasonableness beco es even ore apparent fro the fact, d"l% ad !tted b% appellant h! self, that S"!co had obv!o"sl% been !nebr!ated at the t! e of the a##ress!on. It wo"ld have th"s been eas!er for the for er to have s"bd"ed the v!ct! w!tho"t resort!n# to e<cess!ve eans. F!nall%, as to the ele ent of lac2 of s"ff!c!ent provocat!on on the part of the person resort!n# to self-defense, appellant has s"ff!c!entl% establ!shed that he went to the ho"se of the 6ap!dantes to f!nd o"t who had f!red the #"nshots earl!er that da%. There was therefore absol"tel% no provocat!on fro h! , e!ther b% "nB"st cond"ct or b% !nc!te ent, that wo"ld B"st!f% S"!co1s acts of coc2!n# and a! !n# a #"n at h! . Not hav!n# proven all the ele ents of self-defense, appellant cannot "se !t to B"st!f% s"ff!c!entl% h!s fatal shoot!n# of S"!co. 8av!n# proven a aBor!t% of the ele ents, however, the for er a% st!ll be cred!ted w!th a !t!#at!n# c!rc" stance !n accordance w!th 3rt!cle &.>+ of the R;C. Circumstances Surrounding the Shooting of Lapidante ?!th respect to 6ap!dante, he alle#edl% r"shed towards h!s ho"se to #et hold of the 0 ahaba,0 so appellant had no other reco"rse b"t to shoot h! . The p"rpose of the v!ct! !n r"sh!n# towards h!s ho"se was s"pposedl% to recover the advanta#e he had prev!o"sl% enBo%ed. 8ence, !t !s ar#"ed that "nlawf"l a##ress!on was present. ?e d!sa#ree w!th appellant1s aver ents. 5nlawf"l a##ress!on pres"pposes an act"al, s"dden and "ne<pected attac2 or ! !nent dan#er thereof. S"ch a##ress!on refers to an attac2 that has act"all% bro2en o"t or ater!al!Eed or !s at the ver% least clearl% ! !nentH !t cannot cons!st erel% of an% oral threat or !nt! !dat!n# stance or post"re. >. In th!s case, the RTC was cate#or!cal !n r"l!n# that the perce!ved dan#er was ore !n the !nd of appellant than !n real!t%. The c!rc" stances d!d not po!nt to an% act"al or ! !nent per!l to h!s l!fe, l! b or r!#ht. On the part of 6ap!dante, the act of r"nn!n# towards h!s ho"se can hardl% be character!Eed as "nlawf"l a##ress!on. It co"ld not have ! per!led appellant1s l!fe. In a prev!o"s case,>= th!s Co"rt r"led that 0a threat even !f ade w!th a weapon or the bel!ef that a person 9!s: abo"t to be attac2ed, !s not s"ff!c!ent, b"t that !t !s necessar% that the !ntent be ostens!bl% revealed b% an act of a##ress!on or b% so e e<ternal acts show!n# the co ence ent of act"al and ater!al "nlawf"l a##ress!on.0>>?e a#ree w!th the RTC1s rat!oc!nat!on, wh!ch we D"ote/ 0?!th respect to the !nc!dent !nvolv!n# the v!ct! 6ap!dante, !t !s not d!sp"ted that he was "nar ed as he was !ns!de h!s own pre !ses w!th!n the fenced area !n front of h!s ho"se. ?hat acts of a##ress!on a#a!nst Catba#an

Page 11 of 15 Physical Injuries wh!ch he d!d are not apparent to "s. To th!s Co"rt, the bel!ef on the part of Catba#an that the v!ct! to retr!eve a r!fle fro the doors!de of the ho"se, e<!sted onl% !n h!s ! a#!nat!on. was abo"t

03s!de fro !ts !ntr!ns!c a b!#"!t%, the cla! s of the defense w!tnesses abo"t the alle#ed "tterance of 6ap!dante abo"t F3n# ahabaN1 an9#: ahabaN1 do not s!t well w!th th!s Co"rt. Indeed, we are not conv!nced that he co"ld have "ttered that state ent s!nce the ev!dence po!nts to the fact that he and h!s fr!ends had B"st arr!ved fro another phase of the s"bd!v!s!on "pon hav!n# del!vered thereat, the 3r al!te of S"!co. On the contrar%, 6ap!dante appeared to have been #r!pped b% fear and was obv!o"sl% tr%!n# to escape fro har . Indeed, there was no o ent for Catba#an to val!dl% state that h!s own l!fe 9was: !n ! !nent dan#er fro 6ap!dante.0 >@ Ne!ther do we accept the content!on that "nlawf"l a##ress!on b% 6ap!dante was shown b% h!s act of r"sh!n# towards h!s ho"se for the p"rpose of ta2!n# a ore advanta#eo"s pos!t!on. Referred to here !s the r"le that !f !t !s clear that the p"rpose of the a##ressor !n retreat!n# -- or, as !n th!s case, 6ap!dante1s r"sh!n# towards h!s ho"se -- !s to ta2e a ore advanta#eo"s pos!t!on to ens"re the s"ccess of the attac2 alread% be#"n, the "nlawf"l a##ress!on !s cons!dered st!ll cont!n"!n#H and the one resort!n# to self-defense has a r!#ht to p"rs"e and d!sable the for er.>C Obv!o"sl%, th!s r"le does not appl% to 6ap!dante, beca"se &) there was no clear p"rpose !n h!s act of retreat!n# to ta2e a ore advanta#eo"s pos!t!onH and +) s!nce he never attac2ed appellant !n the f!rst place, the for er co"ld not have be#"n an% "nlawf"l a##ress!on and, hence, wo"ld not have had an% reason to ta2e a ore advanta#eo"s pos!t!on. 8ow co"ld there have been a cont!n"at!on of so eth!n# that had never been startedK If an% a##ress!on was be#"n !n th!s case, !t was b% S"!co, not b% 6ap!dante. 8ence, no "nlawf"l a##ress!on b% 6ap!dante was shown. *eca"se the presence thereof !s a stat"tor% and doctr!nal cond!t!o s!ne D"a non of the B"st!f%!n# c!rc" stance of self-defense >- -- co plete or !nco plete -- we need not e<a !ne the presence of the other reD"!s!tes. Circumstances Surrounding the Shooting of Lacaden 3ppellant asserts that 6acaden attac2ed h! w!th an !ce p!c2 fro the s!de. 3lle#edl%, th!s act clearl% showed "nlawf"l a##ress!on on the latter1s part. 3ll the p!eces of ev!dence on record, however, po!nt to the absence thereof. $ost cr"c!al !s the pos!t!on of the #"nshot wo"nd. 3s test!f!ed to b% the doctor who had treated the v!ct! , !ts po!nt of entr% was on the r!#ht s!de of the bac2, B"st below the scap"la. >' Th!s !ncontestable fact bel!es the cla! of appellant that he was attac2ed b% 6acaden w!th an !ce p!c2. S"ch attac2 wo"ld have reD"!red the latter to face h! H and, lo#!call%, a #"nshot entr% wo"nd wo"ld have been !n the front -- not !n the bac2 -- port!on of 6acaden1s bod%. The wo"nd !n the bac2 of the v!ct! clearl% shows that he was shot wh!le h!s bac2 was t"rned to appellant. 8ence, there was no "nlawf"l a##ress!on on the part of the for er. Ne!ther was an% !ce p!c2 presented !n the proceed!n#s before the RTC. 3ppellant a!nta!ns that h!s test! on%, co"pled w!th that of ;avab!er, !s s"ff!c!ent to establ!sh the e<!stence of the weapon. *"t the prosec"t!on w!tnesses, !ncl"d!n# the v!ct! h! self, test!f!ed otherw!se -- that there was no "nlawf"l a##ress!on d"r!n# the !nc!dent, "ch less w!th the "se of an !ce p!c2. The RTC held th"s/ 0In the case of A"n 6acaden, he was shot !n the bac2 wh!ch co"ld onl% corroborate the ev!dence to the effect that he was also !n the act of flee!n# fro the f"r% of #"nf!re fro Catba#an. 3s to the alle#at!on of the latter that A"n 6acaden had an !cep!c2, that cla! !s rather neb"lo"s. F!rstl%, as veteran cr! !nal !nvest!#ator, he sho"ld have ta2en, 2ept and presented that sa!d !nstr" ent to a"# ent h!s le#al e<c"se. Secondl%, !f reall% there was one, !t !s rather s"rpr!s!n# wh% he d!d not de and A"n 6acaden for !ts s"rrender !n!t!all% as he passed thr" the pedestr!an steel door and s"bseD"entl% wh!le the latter had pos!t!oned h! self near the owner-t%pe Beep. 0$ore ! portantl%, #rant!n# that A"n 6acaden had an !cep!c2, andJor had an% des!#n to la"nch an attac2 a#a!nst Catba#an, the for er was B"st too far a d!stance awa% to do real har to the acc"sed. Fro @-C eters, as clar!f!ed fro the acc"sed h! self, !t !s r!d!c"lo"s for "s to bel!eve that A"n 6acaden co"ld stab h! . $ore so beca"se the acc"sed h! self test!f!ed that the two ar s of A"n 6acaden were ra!sed "pward wh!ch !s not to

Page 12 of 15 Physical Injuries ent!on that Catba#an had alread% de onstrated h!s prof!c!enc% and acc"rac% !n the "se of h!s .' a"to at!c p!stol. Th"s, there was, l!2e that of 6ap!dante, no occas!on to f!nd as e<!st!n#, the ele ent of "nlawf"l a##ress!on.0@, 3ppellant has presented no s"ff!c!ent reason to overt"rn these concl"s!ve f!nd!n#s of the tr!al co"rt. 3s!de fro be!n# co pletel% !n accord w!th lo#!c and h" an e<per!ence, the% are too sol!d to be deb"n2ed b% h! . T#,r2 Issue1 Voluntary Surrender F!nall%, appellant ar#"es that even on the ass" pt!on that h!s #"!lt was proven be%ond reasonable do"bt, he !s st!ll ent!tled to a !t!#at!n# c!rc" stance. 3ccord!n# to h! , he vol"ntar!l% s"rrendered to the a"thor!t!es after the occ"rrence of the !nc!dent, a fact not onl% "ncontroverted b"t even ad !tted b% the prosec"t!on. For vol"ntar% s"rrender to !t!#ate cr! !nal l!ab!l!t%, the follow!n# ele ents "st conc"r/ &) the offender has not been act"all% arrestedH +) the offender s"rrendered h! self to a person !n a"thor!t%H and .) the s"rrender was vol"ntar%.@& It !s s"ff!c!ent that that act be spontaneo"s and clearl% !nd!cat!ve of the !ntent of the acc"sed to s"rrender "ncond!t!onall%, beca"se there !s e!ther an ac2nowled#e ent of #"!lt or a des!re to save the a"thor!t!es the tro"ble and the e<pense that wo"ld necessar!l% be !nc"rred !n search!n# for and capt"r!n# the c"lpr!t.@+ It was establ!shed that on the n!#ht after the shoot!n# !nc!dent, appellant called "p h!s ! ed!ate s"perv!sor, 3tt%. V!r#!l!o ;abl!co, to tell h! abo"t the !nc!dent that had occ"rred that afternoon and to conve% the for er1s !ntent!on to s"rrender.@. The follow!n# da%, appellant s"rrendered h! self and h!s f!rear to ;ol!ce S"pt. Ed#ardo 3c"La, the ch!ef of the 3ss!stant D!rectorate for Intell!#ence.@= Th!s s"rrender !s ev!denced b% a ;ro#ress Report@>s!#ned b% ;ol!ce Ch!ef S"per!ntendent Efren I"! po FernandeE. 3t the t! e of h!s s"rrender, appellant had not act"all% been arrested. 8e s"rrendered h! self and h!s f!rear to a person !n a"thor!t%, the ch!ef of the 3ss!stant D!rectorate for Intell!#ence of the ;h!l!pp!ne Nat!onal ;ol!ce. F!nall%, the s"rrender was vol"ntar% and spontaneo"sH !t th"s showed an !ntent to s"rrender "ncond!t!onall% to the a"thor!t!es. In fact, !n the afore ent!oned ;ro#ress Report, appellant had #!ven the sa e narrat!on of events he later #ave !n co"rtH oreover, he owned respons!b!l!t% for the shoot!n#. Th"s, we cred!t h! w!th the !t!#at!n# c!rc" stance of vol"ntar% s"rrender. F,-a+ Issue1 Crimes and Penalties 3ppellant was conv!cted of ho !c!de, "rder, and fr"strated "rder for the shoot!n# of S"!co, 6ap!dante and 6acaden, respect!vel%. In deter !n!n# the cr! es co !tted and !n ! pos!n# the proper penalt!es, !t !s necessar% to loo2 !nto the D"al!f%!n# c!rc" stances alle#ed !n the three Infor at!ons. Treacher% and ev!dent pre ed!tat!on were both alle#edH th"s, there !s a need to ascerta!n the!r presence or absence !n the co !ss!on of the acts, !n order to deter !ne the cr! es co !tted b% appellant. To establ!sh treacher%, the follow!n# "st be proven/ &) the e plo% ent of s"ch eans of e<ec"t!on as wo"ld #!ve the person attac2ed no opport"n!t% for self-defense or retal!at!onH and +) the del!berate and consc!o"s adopt!on of the eans of e<ec"t!on.@@ It !s also the r"nn!n# case law that where treacher% !s alle#ed, the anner of attac2 "st be proven.@C S"ch attac2 "st be s"dden and "ne<pected and w!tho"t the sl!#htest provocat!on on the part of the v!ct! , who !s th"s depr!ved of an% real chance for self-defense, thereb% ens"r!n# the co !ss!on of the cr! e w!tho"t r!s2 to the a##ressor. @?!th respect to the shoot!n# of S"!co, there was no treacher%. The shoot!n# was perpetrated !n a frontal enco"nter as shown b% the locat!on of h!s wo"nds. 3ppellant d!d not a2e an% del!berate, s"rpr!se attac2 a#a!nst h! or consc!o"sl% adopt a treachero"s ode thereof. 3s establ!shed, he shot the v!ct! after the latter had a! ed, coc2ed and f!red a #"n at h! .

Page 13 of 15 Physical Injuries 3s to the shoot!n# of 6ap!dante, the RTC D"al!f!ed the cr! e to "rder beca"se of the presence of treacher%. 3ccord!n# to the tr!al co"rt, the shoot!n# was "ne<pected, he was "nar ed, and h!s bac2 was t"rned towards appellant when the !nc!dent occ"rred. Treacher% was also apprec!ated !n the shoot!n# and wo"nd!n# of 6acaden, s!nce he had been shot at the bac2. F"rther, even !f he had posed no ! !nent dan#er to appellant, the for er was nevertheless shot w!th a .' a"to at!c p!stol -- a lethal weapon. For th!s act, the latter was conv!cted of fr"strated "rder. The ere fact that the attac2 a#a!nst 6ap!dante and 6acaden was perpetrated when the!r bac2s were t"rned d!d not b% !tself const!t"te treacher% or alevos!a.@' ?hether the ode of attac2 was consc!o"sl% adopted, and whether there was r!s2 to the offender, "st be ta2en !nto acco"nt. C, Treacher% cannot be cons!dered when there !s no ev!dence that the acc"sed had resolved to co !t the cr! e pr!or to the o ent of the 2!ll!n#H or that the death of the v!ct! was the res"lt of pre ed!tat!on, calc"lat!on or reflect!on. C& In th!s case, !t !s ev!dent that the dec!s!on to shoot 6ap!dante and 6acaden was s"ddenl% arr!ved at after the confrontat!on w!th S"!co had alread% occ"rred. Even !f the pos!t!ons of the v!ct! s were v"lnerable, there was st!ll no treacher%, as appellant d!d not del!beratel% adopt s"ch ode of attac2. Its presence was ne#ated b% the fact that the shoot!n#s had spr"n# fro the "ne<pected t"rn of events. The treachero"s character of the eans e plo%ed does not depend "pon !ts res"lt, b"t "pon the eans !tself -- "pon appellant1s p"rpose !n e plo%!n# !t.C+ Treacher% cannot be apprec!ated where, as !n th!s case, there !s noth!n# !n the records that shows that appellant pondered "pon the ode or ethod of attac2 to ens"re the wo"nd!n# and the 2!ll!n# of the v!ct! sH or to re ove or d! !n!sh an% r!s2 to h! self that !#ht ar!se fro the defense that the% !#ht a2e. C. 8!s dec!s!on to shoot the was clearl% s"dden. In the absence of treacher%, the 2!ll!n# of 6ap!dante and the wo"nd!n# of 6acaden cannot be D"al!f!ed to "rder and fr"strated "rder, respect!vel%. The alle#at!on of ev!dent pre ed!tat!on was correctl% reBected b% the lower co"rt. For th!s a##ravat!n# c!rc" stance to be apprec!ated, the follow!n# "st be proven/ &) the t! e when the acc"sed dec!ded to co !t the cr! eH +) an overt act an!festl% !nd!cat!n# that the acc"sed cl"n# to s"ch deter !nat!onH and, .) between the dec!s!on and the e<ec"t!on, a s"ff!c!ent lapse of t! e that allowed t! e to reflect "pon the conseD"ences of the act conte plated. C= None of these ele ents has been establ!shed !n the case at bar. 5nden!abl%, the shoot!n# of the v!ct! s was done w!tho"t an% pr!or plan to 2!ll or attac2 the . 3s prev!o"sl% stated, appellant be#an shoot!n# at the after a coc2ed #"n had been a! ed and f!red at h! . Th!s fact ne#ates an% f!nd!n# that he had alread% prev!o"sl% conce!ved the shoot!n#, and that he then an!festl% cl"n# to h!s deter !nat!on to co !t the cr! e after a s"ff!c!ent lapse of t! e. 8av!n# reBected both treacher% and ev!dent pre ed!tat!on !n the 2!ll!n# of S"!co and 6ap!dante, we hold appellant #"!lt% onl% of ho !c!de !n both cases. *"t for the shoot!n# of 6acaden, a caref"l rev!ew "st be ade of the cr! e that was act"all% co !tted. The RTC char#ed h! w!th fr"strated "rder and fo"nd h! #"!lt% thereofH b"t, as r"led above, no D"al!f%!n# c!rc" stance was proven. Th"s, h!s cr! e can onl% be fr"strated ho !c!de, !n wh!ch ev!dence of !ntent to 2!ll !s essent!al, however. C> It bears stress!n# that s"ch !ntent deter !nes whether the !nfl!ct!on of !nB"r!es sho"ld be p"n!shed as atte pted or fr"strated "rder, ho !c!de or parr!c!deH or as cons" ated ph%s!cal !nB"r!es.C@ 8o !c!dal !ntent "st be ev!denced b% acts that, at the t! e of the!r e<ec"t!on, are "n !sta2abl% calc"lated to prod"ce the death of the v!ct! b% adeD"ate eans. CC The pr!nc!pal and essent!al ele ent of atte pted or fr"strated ho !c!de or "rder !s the assa!lant1s !ntent to ta2e the l!fe of the person attac2ed.C- S"ch !ntent "st be proved clearl% and conv!nc!n#l%, so as to e<cl"de reasonable do"bt thereof.C' 3ltho"#h the !nB"r% s"sta!ned b% 6acaden was !nfl!cted b% appellant, the facts do not s"pport a f!nd!n# that the latter had been ! pelled b% an !ntent to !nB"re to the po!nt of 2!ll!n# the for er. The !ntent to 2!ll !s absent !n th!s case. It was fo"nd that the shoot!n# was s"dden and "ne<pected, hav!n# been bro"#ht abo"t b% a confrontat!on between appellant and S"!co and the co ot!on that ens"ed. The absence of s"ch !ntent was, !n fact, even

Page 14 of 15 Physical Injuries ore apparent !n the test! on% of appellant, who sa!d there!n that he d!d not even loo2 at the v!ct! an% ore. The for er1s attent!on was concentrated on the latter, who was sho"t!n#, 03n# ahaba, an# ahabaN0 -, The !ntent to 2!ll, an essent!al ele ent of the offense of fr"strated or atte pted ho !c!de, "st be proved b% clear and conv!nc!n# ev!dence and w!th the sa e de#ree of certa!nt% as that reD"!red of the other ele ents of the cr! e.-& The !nference that s"ch !ntent e<!sted sho"ld not be drawn !n the absence of c!rc" stances s"ff!c!ent to prove !t be%ond reasonable do"bt. If !t was absent b"t wo"nds were !nfl!cted, the cr! e !s not fr"strated "rder, b"t onl% ph%s!cal !nB"r!es.-+ In th!s case, the e<pert op!n!on of the doctor who treated 6acaden was that !t wo"ld ta2e the latter th!rt% da%s to heal and recover fro the lone #"nshot wo"nd and to res" e h!s nor al wor2.-.Th"s, a f!nd!n# of less ser!o"s ph%s!cal !nB"r!es-= !s proper. 3ltho"#h the char#e !n the !nstant case !s fr"strated "rder, a f!nd!n# of #"!lt for the lesser offense of less ser!o"s ph%s!cal !nB"r!es a% be ade, cons!der!n# that the essent!al !n#red!ents of th!s lesser offense are necessar!l% !ncl"ded !n or for part of those const!t"t!n# the #raver one. -> In the sa e anner, a conv!ct!on a% be for sl!#ht or ser!o"s ph%s!cal !nB"r!es !n a prosec"t!on for ho !c!de or "rder, !nas "ch as the !nfl!ct!on of the for er, when carr!ed o"t to the "t ost de#ree, co"ld lead to the latter offense. S"ch conv!ct!on a% be ade, w!tho"t !ntent to 2!ll -- an essent!al ele ent of the cr! e of ho !c!de or "rder. -@ To s" ar!Ee, !n Cr! !nal Case No. &,-+-$-'-, appellant !s fo"nd #"!lt% of ho !c!de, for wh!ch the penalt% prescr!bed !s recl"s!on te poral.-C S!nce he proved a aBor!t% of the ele ents of self-defense -- "nlawf"l a##ress!on and lac2 of s"ff!c!ent provocat!on -- the penalt% prescr!bed b% law a% be lowered b% two de#rees-- to pr!s!on correcc!onal. Cons!der!n# f"rther the presence of the #ener!c !t!#at!n# c!rc" stance of vol"ntar% s"rrender w!tho"t an% a##ravat!n# c!rc" stance, the penalt% shall be ! posed !n !ts !n! " per!od.-' The Indeter !nate Sentence 6aw !s appl!cable !n th!s case. 8ence appellant sho"ld be sentenced to an !ndeter !nate sentence, the a<! " ter of wh!ch shall be that wh!ch a% properl% be ! posed "nder the Rev!sed ;enal CodeH and the !n! " of wh!ch shall be w!th!n the ran#e of the penalt% ne<t lower than that prescr!bed b% the Code -- !n th!s case, arresto a%or. In Cr! !nal Case No. &,-.-$-'-, appellant !s fo"nd #"!lt% of ho !c!de, for wh!ch the penalt% prescr!bed b% law !s recl"s!on te poral.', 3#a!n, cons!der!n# the presence of the #ener!c !t!#at!n# c!rc" stance of vol"ntar% s"rrender w!tho"t an% a##ravat!n# c!rc" stance, the penalt% shall be ! posed !n !ts !n! " per!od. '& The Indeter !nate Sentence 6aw !s also appl!cable to th!s case. 8ence, appellant sho"ld be sentenced to an !ndeter !nate sentence, the a<! " ter of wh!ch shall be that wh!ch a% properl% be ! posed "nder the Rev!sed ;enal CodeH and the !n! " of wh!ch shall be w!th!n the ran#e of the penalt% ne<t lower than that prescr!bed b% the Code -- !n th!s case, pr!s!on a%or. F!nall%, as to Cr! !nal Case No. &,''-$-'-, appellant !s fo"nd #"!lt% of less ser!o"s ph%s!cal !nB"r!es, for wh!ch the penalt% prescr!bed b% law !s arresto a%or. 3#a!n, cons!der!n# the presence of the #ener!c !t!#at!n# c!rc" stance of vol"ntar% s"rrender w!tho"t an% a##ravat!n# c!rc" stance, the penalt% shall be ! posed !n !ts !n! " per!od. Co !n# now to pec"n!ar% l!ab!l!t!es, the he!rs of the v!ct! s S"!co and 6ap!dante !n Cr! !nal Case Nos. &,-+-$'- and &,-.-$-'-, respect!vel%, are ent!tled to a f!<ed s" represent!n# c!v!l !nde n!t% for death. Death !nde n!t% !s c"rrentl% f!<ed at ;>,,,,,.'+ Th!s 2!nd of c!v!l !nde n!t% !s separate and d!st!nct fro other for s of !nde n!t% for da a#es and !s a"to at!call% awarded w!tho"t need of f"rther proof other than the fact of death and the respons!b!l!t% of the acc"sed therefor. ;roof of oral da a#es was presented thro"#h the test! on% of 6ap!dante1s w!fe. The RTC1s award of s"ch da a#es here!n !s e<cess!ve, however, cons!der!n# that !t !s not eant to enr!ch an !nB"red part%. '. 8ence, !n Cr! !nal Case No. &,-.-$-'-, the a o"nt thereof sho"ld be red"ced to ;>,,,,,. In the other two cases, there be!n# no proof of oral da a#es, the award therefor !s deleted. $oral da a#es cannot be #ranted !n the absence of proof.'= It !s also proper to award co pensat!on to the he!rs of the v!ct! s for loss of earn!n# capac!t%, p"rs"ant to 3rt!cle ++,@ of the C!v!l Code.'> The doc" ents presented, co"pled w!th the test! on!es of Els!e S"!co and Ros!ta 6ap!dante, are s"ff!c!ent bases for the award.

Page 15 of 15 Physical Injuries 3t the t! e of h!s death, S"!co, fort%-fo"r (==) %ears old, '@ was rece!v!n# a onthl% ta2e-ho e pa% of ;'=+.C,,'Cas proven and ad !tted. To co p"te h!s net earn!n#s, we "lt!pl% th!s a o"nt b% &+ to #et h!s ann"al !nco eH then ded"ct the reasonable and necessar% l!v!n# e<penses wh!ch, !n the absence of contrar% ev!dence, !s pe##ed at >, percent of the earn!n#s. 3ppl%!n# the for "la 0Net earn!n# capac!t% O 9+J. < (-, M a#e at t! e of death) < (#ross ann"al !nco e M reasonable and necessar% l!v!n# e<penses):, '- we arr!ve at a loss of earn!n# capac!t% of;&.>,C=-.-,. 3ppl%!n# the sa e for "la to 6ap!dante who was th!rt%-f!ve (.>) %ears old'' at the t! e of h!s death, w!th a onthl% ta2e-ho e pa% of ;&,,,,=.+=&,, and an add!t!onal !nco e of ;&,,,,.,, for sla"#hter!n# p!#s,&,& we arr!ve at a loss of earn!n# capac!t% of ;&,'-,,C@..+,. 8!s he!rs are also ent!tled to act"al da a#es !n the a o"nt of ;&.,->, for hosp!tal and f"neral e<penses. These e<penses are s"pported b% rece!pts. &,+ The rece!pt&,. for the a o"nt of ;@,,,, -- wh!ch also ent!ons a re a!n!n# pa%able balance of ;@,>,, -- was not properl% !dent!f!ed and character!EedH th"s, we sho"ld e<cl"de !t fro the award of act"al da a#es. F!nall%, w!th respect to the c!v!l !nde n!t!es for 6acaden, the award for act"al da a#es -- for hosp!tal!Eat!on and ed!c!nes -- sho"ld be ;=,>-'.-@, as onl% th!s a o"nt was properl% covered b% rece!pts. &,= The a o"nt of;&,-.&, alle#edl% for hosp!tal serv!ces, was !ncl"ded !n a l!st presented b% the v!ct! , b"t was not properl% s"pported b% an% rece!pt or recordH th"s, we cannot #rant s"ch a o"nt. 3HEREFORE, the appeal is partly !"#$%D and the assailed Decision &'D(F(%D . In Cr! !nal Case No. &,-+-$-'-, 3ppellant Car elo Catba#an !s fo"nd #"!lt% be%ond reasonable do"bt of ho !c!de and !s SENTENCED to a pr!son ter of one (&) onth and one (&) da% arresto a%or as !n! " H to one (&) %ear and s!< (@) onths of pr!s!on correcc!onal as a<! " . In Cr! !nal Case No. &,-.-$-'-, he !s fo"nd #"!lt% be%ond reasonable do"bt of ho !c!de and SENTENCED to a pr!son ter of s!< (@) %ears and one (&) da% of pr!s!on a%or as !n! " H to twelve (&+) %ears and one (&) da% of recl"s!on te poral as a<! " . In Cr! !nal Case No. &,''-$-'-, he !s fo"nd #"!lt% of less ser!o"s ph%s!cal !nB"r!es and SENTENCED to a pr!son ter of one (&) onth and one (&) da% of arresto a%or. 3ppellant !s also ORDERED to pa% the follow!n# a o"nts/ &) to the le#al he!rs of S"!co, ;>,,,,, as !nde n!t% e< del!cto and ;&.>,C=-.-, for loss of earn!n# capac!t%H +) to the le#al he!rs of 6ap!dante, ;&.,->, for act"al da a#es, ;>,,,,, as !nde n!t% e< del!cto, ;>,,,,, as oral da a#es, and ;&,'-,,C@..+, for loss of earn!n# capac!t%H and .) to 6acaden, ;=,>-'.-@ for act"al da a#es. Costs a#a!nst appellant. SO OR4ERE4.