Republic of the Philippines

Supreme Court
Baguio City

THIRD DIVISION

PEOPLE OF THE PHILIPPINES, G.R. NO. 188104

Appellee,
Present:

CORONA, J., Chairperson,

VELASCO, JR.,
NACHURA,
- versus - PERALTA, and
MENDOZA, JJ.

BENANCIO MORTERA y Promulgated:

BELARMINO,
Appellant.
April 23, 2010

x ----------------------------------------------------------------------------------------x

DECISION

MENDOZA, J.:
This is an appeal from the January 23, 2009 Decision[1] of the Court of
Appeals which affirmed with modification the Decision[2] of the Regional
Trial Court, Branch 16, Zamboanga City (RTC), in Criminal Case No.
19311, which found accused Benancio[3] Belarmino guilty beyond
reasonable doubt of the crime of murder for the killing of one Robelyn
Rojas.

The accusatory portion of the Amended Information[4] charging the

accused with murder reads:

That on or about August 25, 2002, in the City of Zamboanga,

Philippines and within the jurisdiction of this Honorable Court, the above
named accused, armed with a knife, by means of treachery and with
intent to kill, did then and there willfully, unlawfully and feloniously,
assault, attack and stab from behind with the use of said weapon that he
was then armed with, at the person of ROBELYN ROJAS y MALLARI,
employing means, manner and form which tended directly and specially
to insure its execution without any danger to the person of the accused,
and as a result of which attack, the said Robelyn Rojas y Mallari sustained
stabbed wound on the fatal part of the latters body which directly caused
his death to the damage and prejudice of the heirs of said victim.

CONTRARY TO LAW.

Upon arraignment on February 6, 2004, the accused pleaded Not Guilty.[5]

 At the trial, the prosecution presented the following witnesses: (1)
Ramil Gregorio, an eyewitness; (2) Jovel Veales, another eyewitness;
(3) Dr. Jamella Marbella, examining physician; (4) Leticia Rojas, mother
of Robelyn; and (5) PO1 Yaser Hakim.

The prosecutions version of the incident, as found by the trial court

and adopted by the Office of the Solicitor General, appears in the
Appellees Brief[6] as follows:

Robelyn Mallari Rojas, 23 years old, single, was stabbed and killed
on August 25, 2002 at Cabato Lane, Gov. Camins, Zamboanga City. Post
mortem examination conducted by Dr. Jamella Marbella, Medical Officer
V of Zamboanga City Health Office showed that Robelyn Rojas sustained
the following injuries:

1. Penetrating wound, clean edges, 2-5 cm width 1.5 cm.

gaping located at 5 cm. from spine below the left sub-
scapular region. 19 cm. deep upward towards axilla, and 11
cm. deep downward towards left flank region.

2. Linear abrasion 5.5 cm. in length at the left lateral aspect

of left arm (Ex. B).

The cause of his death was cardio pulmonary arrest probably secondary
to hemorrhagic shock secondary to stab wound, penetrating left back
(Exh. A-1).

Prosecution witness Ramil Gregorio y Toribio, 24 years old, single,

testified that on August 25, 2002, at about 3:00 oclock in the afternoon,
he together with Jovel Veales, Archie Saavedra, John Carpio, Plong Siano
and Alberto Rojas were drinking tuba at Cabato Lane, near Acapulco
Drive, Governor Camins, Zamboanga City. Four of them were sitting on
a chair leaning on a concrete wall while two of their companions sat on
the ground. They have just started drinking when Benancio Mortera, Jr.
arrived. He wanted to hit Alberto Rojas with a Nescafe glass. Alberto
 Rojas ran away. Mortera said, Sayang. He listened while the group of
Ramil Gregorio were (sic) singing accompanied by a guitar.Jomer Diaz,
brother-in-law of Alberto Diaz, arrived. He bought something from a
store five meters away from the place where Gregorio and his
companions were drinking.Mortera said, Here comes another
Rojas. Gregorio and his companions told Jomer Diaz to run
away. Mortera hurled a stone at Diaz but the latter was not hit. Mortera
left but he said that he will return. After a few minutes, Mortera came
back. When Jomer Diaz ran, Robelyn Rojas, brother of Alberto Rojas
went to Jomer. Mortera met Robelyn at a distance of about seven meters
from the place where Ramil Gregorio and his companions were drinking.
Mortera and Robelyn discussed with each other. After their discussion,
Mortera and Robelyn shook hands. Robelyn turned his face and walked
three steps. Mortera suddenly stabbed Robelyn Rojas at the back with a
knife about 9 inches long.Robelyn was hit at the back. After stabbing
Robelyn, Mortera ran away. Robelyn Rojas tried to chase Mortera but he
was not able to catch up with the latter. Robelyn fell down mortally
wounded. He was brought to the hospital by his brother Ricky but he was
[pronounced] dead on arrival at the hospital (Exh. A).

Jovel Veales y Bandian, 23 years old, who was drinking together with
Ramil Gregorio, Archie Saavedra, John Carpio, Plong Siano and Alberto
Rojas, in the afternoon of August 25, 2002 corroborated Ramil Gregorios
testimony.

Mrs. Leticia Rojas y Mallari, 48 years old, married, is the mother of

Robelyn Rojas y Mallari. She testified that Robelyn is one of her eight
children. xxx She was at work at Zamboanga Puericulture Lying-
in Maternity Hospital as laundry woman when her daughter Marilyn
called her by telephone informing her that Robelyn was stabbed. She
went to Western Mindanao Medical Center where she saw Robelyn
already dead with stab wound at the back. At past 6:00 oclock in the
evening, Robelyns body was brought to Remedios Funeral Parlor. Mrs.
Rojas testified that she spent a total of Php38,653.00 in connection with
her sons death (Exh. J; J-1, J-1-A to J-1-V).

Although the accused pleaded not guilty when arraigned,[7] during

the trial, he admitted having stabbed the victim whom he referred to as
Tonying, but claimed self-defense.[8] By his account, after leaving his
uncles house at Gov. Camins, he passed by a corner and saw a group of
people drinking. They were Ramil Gregorio, Jonel Veales and
Tonying. Upon seeing him, Tonying ran away and called his brother,
Alberto Rojas. When the accused was about to reach the main road,
Alberto Rojas, Tonying and a certain Duk (brother-in-law of Tonying)
accosted him and asked him for liquor money. When he refused, the three
men got angry. After telling them that he had to go, Tonying hit him with a
spray gun (for painting), causing him to fall down. While he was in a supine
position, Tonying attempted to hit him again. It was at that point that he
was able to get hold of his knife and thrust it forward and hit someone. He
did not know who got stabbed. He then immediately fled to Ayala and later
to Lintangan, Zamboanga del Norte.[9]

The defense witness, Roden Macasantos, claimed that he was

drinking with the group of Alberto Rojas when he saw the accused having
an argument with Jomer Diaz.After they had pacified the two, he saw Diaz
run away. Later, he returned with Robelyn Rojas. Robelyn also argued
with the accused, and they were likewise pacified by the others in the
group. The dispute apparently settled, the group left Robelyn and the
accused alone. After about five minutes, they heard women
shouting. When they went to find out what it was all about, they saw
Robelyn wounded. He, however, did not see the person who stabbed
him.[10]

On January 23, 2007, the RTC rendered judgment finding the

accused guilty of murder. The trial court disposed of the case as follows:

WHEREFORE, the Court finds the accused BENANCIO

MORTERA, JR. Y BELARMINO GUILTY BEYOND REASONABLE
DOUBT of the crime of murder, as principal, for the unjustified killing of
 Robelyn Rojas y Mallari and SENTENCES said accused to suffer the
penalty of RECLUSION PERPETUA and its accessory penalties, to pay
the heirs of the victim Php50, 000.00 as indemnity for his death;
Php50,000.00 as moral damages; Php30,000.00 as exemplary damages;
Php38,653.00 as actual damages; and to pay the costs.

SO ORDERED.

In rejecting the claim of self-defense, the trial court stated that it was
not worthy of belief as it was belied by the credible testimonies of the
prosecution witnesses.[11]

The accused appealed to the Court of Appeals raising the issues of

denial of due process of law and his right to an impartial trial. He claimed
that the trial court judge, Judge Jesus Carbon, was hostile towards him
and prejudged his guilt as could be inferred from his prosecutor-like
conduct. The accused likewise reiterated his claim of self-defense.

In its decision, the Court of Appeals affirmed the decision of the RTC
with modification as to the civil liability of the accused. The CA ruled that
the trial judge did not transgress the standard of cold neutrality required
of a magistrate and added that the questions he propounded were
substantially clarificatory. The claim of self-defense was rejected for
failure to prove the element of unlawful aggression by clear and
convincing evidence. With respect to his civil liability, temperate damages
in the amount of P25,000.00 was awarded, in lieu of the actual damages
awarded by the trial court, for failure of Leticia Rojas to substantiate her
claim with official receipts. The amount of exemplary damages was
likewise reduced to P25,000.00. Specifically, the dispositive portion of the
decision of the Court of Appeals reads:

WHEREFORE, in view of the foregoing, the Decision dated

January 16, 2007 in Criminal Case No. 19311 finding accused-appellant
 guilty beyond reasonable doubt of the crime of Murder and sentencing
him to suffer the penalty of reclusion perpetua and its accessory penalties
is hereby AFFIRMED WITH MODIFICATION that accused-appellant is
ORDERED to pay the heirs of victim Robelyn Rojas the amounts
of P50,000.00 as civil indemnity, P50,000.00 as moral
damages, P25,000.00 as temperate damages in lieu of actual damages,
and P25,000 as exemplary damages; and costs.

SO ORDERED.

Still not satisfied, the accused now comes before this Court.[12] In
seeking his acquittal, he has assigned three errors for the courts
resolution, to wit: (i) there was a denial of his right to due process and of
his right to have an impartial trial; (ii) there was no appreciation of the
justifying circumstance of self defense; and (iii) assuming that not all the
requirements of self-defense were present, there was no appreciation of
the special mitigating circumstance of incomplete self-defense.

After an assiduous assessment of the records, the Court finds no

reason to reverse the judgment of conviction or even appreciate the
special mitigating circumstance of incomplete self-defense. We, thus,
affirm.

For a better grasp of the assertion of the defense that he was denied
his right to due process of law and his right to an impartial trial, we quote
at length the transcript of stenographic notes. Thus:
DIRECT EXAMINATION ON THE WITNESS VENANCIO MORTERA,
JR.
COURT:

Q: During the arraignment you said you did not kill this Robelyn Rojas.
Did you say that?
A: Yes, Your Honor.
COURT:

And, its here where the accused interposed a negative defense

because, you said you have nothing to do with the death of
Robelyn Rojas.

WITNESS:

As far as I could remember Your Honor, he hit me then I fell down

then he still approached me so what I did, I was able to thrust my
knife.

COURT:

Q: You were suggesting that you might have killed him in self-defense?
A: Yes, Your Honor.

Q: As if there is something wrong to your story last February 6, 2004,

you invoked a negative defense?
A: Not intentional.

Q: So, you are changing your story now? From a negative defense you
are now asserting affirmative defense?
A: He hit me first then I fell down just the same he continued
approaching me so I was able to do it?

COURT:
In effect, while you were in the middle of the river you are

changing boat and when you change boat in the middle of the

river, sometimes you get drowned. Because you told even your

own lawyer Atty. Mendoza, said that you interpose a negative

defense that is why we did not have reverse trial. You were not
 even telling the truth to Atty. Mendoza. Because had you told

him the truth, it could have been

Q: Why did Atty. Mendoza, invoke negative defense?

A: Yes, Your Honor.

ATTY. MENDOZA:

Yes, Your Honor, I insisted that, in fact, he told me that he dont

[sic] know that person by that name

COURT:

Well, if he had nothing to do with the death of said person, negative defense. So, if you are not
telling the truth to your lawyer, how would I know now that you are telling the truth? Anyway
if you killed a person you will have to pay for it Mr. Mortera, do you agree also?

WITNESS:

Yes, Your Honor.

COURT:

So, cross-examination.

PROSECUTOR LEDESMA: CROSS EXAMINATION ON THE

WITNESS VENANCIO MORTERA, Jr.
Prosecutor Ledesma:
xxx

Q: And you said earlier that it was this Tingay [deceased] who attacked
you with this spray gun then you fell down?
A: Yes. Then he still approached me and at the same time asked money
and I asked for what? Then he said, for their vices.
Q: You were having this conversation while you were down?
A: Not yet.

Q: He was holding the spray gun on his hand, correct?

A: Yes.

Q: Then you said while you were down you were able to thrust your knife
upward, correct?
A: Well, after hitting me, when I was already down he was still
approaching me and wanted to hit me again.

Q: Yes, approaching you and in the process of hitting you, that was the
time that you thrusted [sic] the knife, correct?
A: Yes.

Q: And it was you, who advanced personally that you were able to hit
him, correct?
A: Yes.

COURT:

Q: You felt the blade of the knife slicing a person?

A: Yes, Your Honor.

Q: As if the knife hit a pig you were used to selling?

A: That knife is stainless used in cutting rope.

Q: Its a long white knife?

A: Not so long Your Honor

Q: But, enough to kill a person?

A: Somewhat like that Your Honor.

Q: But, not enough to kill a pig?

A: No, Your Honor. That is only used in cutting rope.

Q: Where is that evil knife?

A: Well, it is in the place at Bagsakan where we are having a place.

COURT:

You tell them to throw it away or bury that knife because that is a
bad knife. So long as that knife is there the one in possession of
that will always have bad luck. It is cursed. Eventually, Tingay is
already dead.

Q: Did your uncle also tell you that Tingay, sustained a single wound at
his back?
A: Yes.

COURT:

Q: So, when you stabbed him he was trying to hit you with a very small
spray gun. How was it that he was hit at the back?
A: Well, when he was in the act of hitting me again, I thrusted [sic] the
knife to shall we say towards him Your Honor.
Q: That is why, it is impossible because if he was trying to hit you with
a spray gun, you thrusted [sic] the knife towards him, how was
it that he was hit at the back?
A: He was hit Your Honor, when he was in the act of hitting me again.

COURT:

Proceed, Atty. Ledesma.

xxx

COURT:

Robelyn Rojas, was 23 years old when you killed him.

WITNESS:

I do not know the age.

COURT:

Of course, you do not know. The life span of a Filipino now is

about 70 years old, Fiscal? .. Because we expect that long. So, if
you did not kill him he will still have 47 years to live.

PROSECUTOR LEDESMA:

I believed [sic] 80 years Your Honor.

COURT:
80 for purposes of compensation.

PROSECUTOR LEDESMA:

Yes.

COURT:

He has 57 years more to live. That is the trouble of killing people

because you are depriving the person of his right to live and even
if what you are saying is true, you could not have been killed with
that small spray gun You have no right to stab him. Besides, that
is not what your witness said even your own witness here is not
supporting your story. Who is that witness?

WITNESS:

Denden Macasantos

COURT:

Yes, Denden Macasantos. He did not declare what you are saying
now. You are just making a story.

Q: So, even the story of your witness who I think was telling the truth,
dont [sic] support your story Mr. Mortera Your story now is
different Did you hear Denden?
A: Yes.

Q: They did not tell the same story as you are saying now about the spray
gun being used to hit you?
A: I do not know with them Your Honor, but in my case I was really hit
with that spray gun.
Q: Were you injured?
A: No.

Q: Thats the whole trouble. Why will you have injury when you were not
hit?
A: I was hit Your Honor.

Q: You were hit?

A: Yes, I fell down and he continued approaching me.

COURT:

You did more than what Robelyn, did to you. You killed him. Proceed.

PROSECUTOR LEDESMA:

Q: You did not report to the police that incident involving Tingay and his
group, correct?
A: Yes, I did not.

Q: Instead, you immediately left for Ayala?

A: Well, after the incident I ran away towards Ayala.

COURT:

Q: By your running away because you were afraid, you were committing
something wrong?
A: That is why, I ran away I have done something I was able to kill
somebody.
 Q: Why did you run to Ayala then run to Lintangan then return
to Acapulco Drive, knowing that you have a Warrant of Arrest,
you went back to Lintangan? Because you felt guilty?
A: Yes, Your Honor.

Q: Robelyn, has seven brothers and sisters? So, maybe you should have
some vacation in Jail you are supposed to serve?
A: Yes. (Italics supplied)

Citing the foregoing as basis, the accused argues that Judge Jesus
Carbon, Jr. displayed his hostility towards him and condemned him even
before the defense could rest its presentation of evidence. By saying that
he was just making a story, the judge already concluded his guilt during
trial.

The Court is not unaware of the case of Tabuena v.

Sandiganbayan,[13] where it was written:

The Court has acknowledged the right of a trial judge to question

witnesses with a view to satisfying his mind upon any material point
which presents itself during the trial of a case over which he presides. But
not only should his examination be limited to asking clarificatory
questions, the right should be sparingly and judiciously used; for the rule
is that the court should stay out of it as much as possible, neither
interfering nor intervening in the conduct of trial hardly in fact can one
avoid the impression that the Sandiganbayan had allied itself with, or to
be more precise, had taken the cudgels for the prosecution in proving the
case against Tabuena and Peralta. The cold neutrality of an impartial
judge requirement of due process was certainly denied Tabuena and
Peralta when the court, with its overzealousness, assumed the dual role
of magistrate and advocate A substantial portion of the TSN was
incorporated in the majority opinion not to focus on numbers alone, but
more importantly to show that the court questions were in the interest of
the prosecution and which thus depart from the common standard of
fairness and impartiality. (emphasis added)

The situation in the case at bench is, however, different.

 As correctly pointed out by the Court of Appeals, although the trial
judge might have made improper remarks and comments, it did not
amount to a denial of his right to due process or his right to an impartial
trial. Upon perusal of the transcript as a whole, it cannot be said that the
remarks were reflective of his partiality. They were not out of context. Not
only did the accused mislead the court by initially invoking a negative
defense only to claim otherwise during trial, he was also not candid to his
own lawyer, who was kept in the dark as to his intended defense.

The accused having admitted the killing, a reverse order of trial

could have proceeded.[14] As it turned out, the prosecution undertook to
discharge the burden of proving his guilt, when the burden of proof to
establish that the killing was justified should have been his.[15]

Most probably, the trial judge was peeved at the strategy he

adopted. The trial judge cannot be faulted for having made those remarks,
notwithstanding the sarcastic tone impressed upon it. The sarcasm alone
cannot lead us to conclude that the trial judge had taken the cudgels for
the prosecution.

The invocation of Opida[16] fails to persuade us either. The facts therein

are not at all fours with the case at bench. In Opida, we did not fail to
notice the malicious, sadistic and adversarial manner of questioning by
the trial judge of the accused therein, including their defense
witness. In Opida, the accused never admitted the commission of the
crime, and so the burden of proof remained with the prosecution.
 In his second assigned error, the accused invokes self-defense. By
asserting it, however, it became incumbent upon him to prove by clear
and convincing evidence that he indeed had acted in defense of himself.
The requisites of self-defense are: (1) unlawful aggression; (2) reasonable
necessity of the means employed to repel or prevent it; and (3) lack of
sufficient provocation on the part of the person defending himself.[17]

The issue of whether or not the accused acted in self-defense is

undoubtedly a question of fact, and it is well entrenched in jurisprudence
that findings of fact of the trial court command great weight and respect
unless patent inconsistencies are ignored or where the conclusions
reached are clearly unsupported by evidence.[18] In the present case, we
find no cogent reason to disturb the decision of the trial court, as modified
by the CA. In debunking his claim, we quote with approval the ruling of the
CA.

In the instant case, accused-appellant claims that there was

unlawful aggression on the part Robelyn Rojas when the latter allegedly
hit him with a spray gun. However, except this self-serving statement, no
other evidence was presented to prove that indeed he was hit by
Robelyn. Accused-appellant failed to show where he was hit and what
injuries he sustained, if any. Moreover, his own defense witness Roden
Macasantos did not see him being hit by a spray gun. On the contrary, the
prosecution has clearly shown that before Robelyn was stabbed, the two
even discussed with each other and accused-appellant even shook hands
with him. Moreover, if indeed it was true that Robelyn was carrying a
spray gun and tried to hit him, accused-appellant, while he was in a
supine position, could have easily just flaunted his knife to scare his
alleged attackers away. On the other hand, even if we assume to be true
that he was in a supine position when he thrust the knife at his attacker,
it is however impossible that the back of Robelyn would be hit, unless the
latter could also fell (sic) on his back, which is again far from reality. In a
myriad of cases, it has been ruled that the location, number or
seriousness of the stab or hack wounds inflicted on the victim are
important indicia which may disprove accuseds plea of self defense. In
the instant case, it is clear that the victim was stabbed at the back negating
any indication that accused-appellant acted in self defense.
Finding the primordial requisite of unlawful aggression wanting, the Court cannot
appreciate the mitigating circumstance of incomplete self-defense.
As regards damages, we affirm the modification made by the Court of
Appeals. Considering that only P14,653.50 of the P38,653.00 actual damages
awarded by the trial court is supported by receipts, the award of P25,000.00 as
temperate damages is proper.[19] We, however, reinstate the amount of exemplary
damages to P30,000.00 to be in accord with current jurisprudence.[20]

WHEREFORE, the January 23, 2009 Decision of the Court of

Appeals in CA-G.R. CR-H.C. No. 00518-MIN is AFFIRMED.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:
 RENATO C. CORONA
Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

DIOSDADO M. PERALTA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached
in consultation before the case was assigned to the write5r of the opinion
of the Courts Division.

RENATO C. CORONA
 Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the

Division Chairpersons Attestation, I certify that the conclusions in the
above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

[1]
Penned by Justice Rodrigo F. Lim Jr. and concurred in by Justices Michael P. Elbinias and Ruben C. Ayson,
CA rollo, pp.126-146.
[2]
Penned by Judge Jesus C. Carbon, Jr.
[3]
Appellants Brief, CA rollo, p. 1, supra note 1.
[4]
Records, p. 1.
[5]
Id. at 19.
[6]
CA rollo, pp. 55-57.
[7]
Records, p. 20.
[8]
TSN, February 17, 2005, p. 14.
[9]
Id. at 4-9.
[10]
TSN, November 25, 2004, pp. 2-10.
[11]
Records, pp. 107-108.
[12]Both the accused and the OSG manifested that they were dispensing with the filing of supplemental

briefs and submitting the case for decision based on the briefs they had filed with the CA.

[13]
G.R. Nos. 103501-03, G.R. No. 103507, February 17, 1997, 268 SCRA 332.
[14]
Rule 119, Section 11. The trial shall proceed in the following order:
xxxx
(e) When the accused admits the act or omission charged in the complaint or information but interposes a lawful
defense, the order of trial may be modified.
[15]
People v. Unarce, G.R. No. 120549, April 4, 1997, 270 SCRA 756.
[16]
G.R. No. L-46272, June 13, 1986, 142 SCRA 295.
[17]
Novicio v. People, G.R. No. 163331, August 29, 2008, 563 SCRA 680.
[18]
People v. Barriga, G.R. No. 178545 September 29, 2008, 567 SCRA 65.
[19]
People v. Se, G.R. No. 152966, March 17, 2004, 425 SCRA 725.
[20]
People v. Elmer Peralta y Hidalgo, G..R. No. 187531, October 16, 2009; and People v. Antonio Dalisay y
Destresa, G.R. No. 188100, November 25, 2009.