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PEOPLE OF THE PHILIPPINES, Petitioner, vs. CHITO NAZARENO,Respondent.

G.R. No. 196! O"to#er $, $%1$

FACTS &

This case is about the evidence required for proving conspiracy and the

qualifying circumstance of abuse or superior strength in a murder case.

The Office of the City Prosecutor of Manila charged the accused ChitoNazareno and Fernando aliendra! a barangay tanod! of murder before the"egional Trial Co#$ %"TC& of that city in Criminal Case '()$**$$+.

ince aliendra remained at)large! only Nazareno #as tried. The prosecutionpresented "oy Magallanes! "oger Francisco! PO$ Teodoro inag! PO$,ulian -ustamante! r. /ntonio 0. "ebosa! and ,ovelo 1aldez.

On November $2! $''* avid 1aldez %avid&! Magallanes! and Franciscoattended the #a3e of a friend. 4hile there! they dran3 liquor #ith accusedNazareno and aliendra. / heated argument ensued bet#een Magallanes

and Nazareno but their companions pacified them.

On the follo#ing day! November $$! avid! Magallanes! and Franciscoreturned to the #a3e. /ccused Nazareno and aliendra also arrived and toldthe three not to mind the previous night5s altercation. /t around '6*2 in theevening! #hile avid! Francisco! and their friend! /ida 7nos #ere #al3ing onthe street! Nazareno and aliendra bloc3ed their path. Nazareno bo8edFrancisco #ho fled but aliendra #ent after him #ith a balisong. Francisco!#ho succeeded in hiding sa# Nazareno hit avid on the body #ith a stic3#hile aliendra struc3 avid5s head #ith a stone. avid ran to#ards agasoline station but Nazareno and aliendra! aided by some barangaytanods! caught up #ith him. /s avid fell! the barangay tanods too3 over theassault. This too3 place as Magallanes stood about five meters across the

high#ay unable to help his friend. /fter#ards! 7nos brought avid to thehospital.$$ r. "ebosa performed surgery on avid5s head but he died onNovember $(! $''* of massive intra)cranial hemorrhage secondary todepressed fracture on his right temporal bone in a form of blunt trauma.

On November $9! $''* after avid5s relatives reported the 3illing to thepolice. On November $:! accompanied by PO$ -ustamante and t#o other

police officers! PO$ inag #ent to the 7T ;ospital and too3 a loo3 atavid5s body! noting the #ounds on his forehead.

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beforehand and decided to commit the crime is not necessary as long as theiracts manifest a common design and oneness of purpose.

;ere! both the "TC and the C/ found conspiracy in attendance. Magallanesand Francisco testified that accused Nazareno and aliendra purposely#aited for avid and his companions out on the street as they came out of the#a3e. The #itnesses testified that each of Nazareno and aliendra too3

concerted steps aimed at 3illing or causing serious harm to avid. Nazarenorepeatedly struc3 avid on the area of his nec3 #ith a stic3> aliendra hurleda fist)sized stone on his head. 0ven #hen avid tried to flee! they still chasedhim and together #ith other barangay tanods! beat him to unconsciousness./lthough Magallanes testified that aliendra and Nazareno acted ?quitedifferently? from each other before the attac3! their actions before and duringthe incident reveal a common purpose. aliendra appears to have deliveredthe fatal blo# but Nazareno cannot escape liability because! in conspiracy! theact of one is the act of all.

Ta3en against these considerations! the Court cannot give credence toNazareno5s defense of alibi. To be admissible! not only must he be at adifferent place during the commission of the crime! his presence at the crime

scene must also be physically impossible. ;ere! Nazareno even admits thathe encountered aliendra! the accused #ho #ent into hiding! on the streetand noticed the commotion.

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that forced the latter to bo# his head but alvador delivered a second blo#that hit 0lpidio on the right eyebro#. alvador attempted to hit 0lpidio for thethird time but the latter got hold of the rattan stic3 and the t#o #restled on thefloor and grappled for the possession of the same rattan stic3. Then Titus ranto#ards the t#o and sprayed something on 0lpidioBs face. Not being able tofree himself from the clutches of alvador and to e8tricate himself! 0lpidio bitalvadorBs head.

Dary hit 0lpidio on the right side of his head #ith a tomaha#3 a8e #hen thelatter #as about to go out of the house. 0lpidio tried to defend himself but #asunable to ta3e the tomaha#3 a8e from Dary. 0lpidio #al3ed a#ay from Titusbut Dary! still armed #ith the tomaha#3 a8e and alvador! #ith hisarnis!including Titus! chased him.

"oland %"olly& 1illanueva! #ithout any #arning! hit 0lpidio on the bac3 of hishead #ith a lead pipe #hich caused the latter to fall on the ground. 0lpidiobegged his assailants to stop! but to no avail. alvador hit him countless timeson his thighs! legs and 3nees using the rattan stic3.

4hile he #as simultaneously being beaten up by alvador! Titus! Dary! "olly!

Nestor! 0ugene and Tommy! he tried to cover his face #ith his arm. Dary hithim #ith the tomaha#3 a8e on his right leg! bet#een the 3nees and the an3leof his leg! #hich caused the fracture on his legs and 3nees. "olly hit 0lpidioBshead #ith a lead pipe! #hile Tommy hit him #ith a piece of #ood on the bac3of his shoulder.

Thereafter! a certain ?Mang Dil? tried to brea3 them off but Titus and Daryshouted at him6 ?;u#ag ma3ialam! a#ay ng mag)ana3 ito? and the t#ocontinued to maul 0lpidio. The people #ho #itnessed the incident shouted?maa#a na 3ayo? but they only stopped battering him #hen a bystanderfainted because of the incident. 0lpidio then pretended to be dead.

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/buse of superior strength is present #henever there is a notorious inequalityof forces bet#een the victim and the aggressor! assuming a situation ofsuperiority of strength notoriously advantageous for the aggressor selected orta3en advantage of by him in the commission of the crime.? ?The fact thatthere #ere t#o persons #ho attac3ed the victim does not per se establish thatthe crime #as committed #ith abuse of superior strength! there being no proofof the relative strength of the aggressors and the victim.? The evidence must

establish that the assailants purposely sought the advantage! or that they hadthe deliberate intent to use this advantage. ?To ta3e advantage of superiorstrength means to purposely use e8cessive force out of proportion to themeans of defense available to the person attac3ed.? The appreciation of thisaggravating circumstance depends on the age! size! and strength of theparties.

and that the minimum should be#ithin the range of prision correccional! #hich has a duration of si8 %@& months

and one %$& day to si8 %@& years. Therefore! the penalty imposed should havebeen imprisonment from si8 %@& years of prision correccional! as minimum! toeight %E& years and one %$& day of prision mayor! as ma8imum.AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA

PEOPLE OF THE PHILIPPINES, P-inti223Appeee, vs. +ICHAEL4O5INGO -i-s +ICHAEL 4O5INGCO -nd RE)NANTE COL, A""sed3

Appe-nts.G.R. No. 1780!6

Ast 1%, $%11

For revie# is the /mended ecision$ dated $( November 922E of the Courtof /ppeals in C/)D.". C");.C. No. 22@:E! finding appellants Michael-o3ingco9 %-o3ingco& and "eynante Col %Col& guilty as conspirators beyondreasonable doubt of the crime of Murder and sentencing them to suffer thepenalty of reclusion perpetua.

On *$ ,uly 9222! an

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The victim! Noli Pasion %Pasion& and his #ife! 0lsa! #ere residing in a housealong Mac /rthur ;igh#ay in -alibago! /ngeles City. Pasion o#ned apa#nshop! #hich formed part of his house. ;e also maintained t#o %9& ro#sof apartment units at the bac3 of his house. The first ro# had si8 %@& units! oneof #hich is /partment No. : and #as being leased to ante 1italicio %1italicio&!Pasion5s brother)in)la#! #hile the other ro# #as still under construction at the

time of his death. /ppellants! #ho #ere staying in /partment No. *! #ereamong the $* construction #or3ers employed by Pasion.@

The prosecution5s evidence sho# that at around $622 a.m. on 9' February9222! 1italicio #as spin)drying his clothes inside his apartment #hen Pasioncame from the front door! passed by him and #ent out of the bac3 door.+ /fe# minutes later! he heard a commotion from /partment No. *. ;e headed tosaid unit to chec3. ;e peeped through a screen door and sa# -o3ingco hittingsomething on the floor. 7pon seeing 1italicio! -o3ingco allegedly pushedopen the screen door and attac3ed him #ith a hammer in his hand. / struggleensued and 1italicio #as hit several times. 1italicio bit -o3ingco5s nec3 andmanaged to push him a#ay. -o3ingco tried to chase 1italicio but #aseventually subdued by a co)#or3er. 1italicio proceeded to his house and #as

told by his #ife that Pasion #as found dead in the 3itchen of /partment No. *.1italicio #ent bac3 to /partment No. * and sa# Pasion5s body lying flat on the3itchen floor. Pasion and 1italicio #ere brought to the hospital. Pasion e8pireda fe# hours later #hile 1italicio #as treated for his in=uries.E

0lsa testified that she #as in the master5s bedroom on the second floor of thehouse #hen she heard banging sounds and her husband5s moans. heimmediately got off the bed and #ent do#n. -efore reaching the 3itchen! Colbloc3ed her #ay. 0lsa as3ed him #hy he #as inside their house but Colsuddenly ran to#ards her! sprayed tear gas on her eyes and po3ed a sharpob=ect under her chin. 0lsa #as #ounded #hen she bo#ed her head to avoidthe tear gas.' Col then instructed her to open the vault of the pa#nshop but0lsa informed him that she does not 3no# the combination loc3. 0lsa tried

offering him money but Col dragged her to#ards the bac3 door by holding hernec3 and pulling her bac3#ard. -efore they reached the door! 0lsa sa#-o3ingco open the screen door and heard him tell Col6 ?tara! patay nasiya.?$2 Col immediately let her go and ran a#ay #ith -o3ingco. 0lsaproceeded to /partment No. *. Thereat! she sa# her husband lying on thefloor! bathed in his o#n blood.$$

PO* uirino ayrit %PO* ayrit& #as stationed at Police tation No. ( in-arangay ala3ot! -alibago! /ngeles City. /t $692 a.m. of 9' February 9222!he received a phone call regarding the incident. ;e! together #ith a certainPH

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On $@ ecember 922(! the trial court rendered =udgment92 finding appellantsguilty beyond reasonable doubt of murder! viz6

4;0"0FO"0! the Court finds accused M Fifty

thousand pesos %P:2!222.22& as moral damages> T#enty five thousand pesos%P9:!222.22& as e8emplary damages> T#enty five thousand pesos%P9:!222.22& as temperate damages> Fifteen thousand pesos %P$:!222.22&as attorney5s fees> and to pay the costs.9:

/ppellants filed a notice of appeal.

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he and Col planned the 3illing of Pasion> and second! #hen he testified inopen court that he #as only provo3ed in hitting Pasion bac3 #hen the latter hithim in the head. On the basis of his e8tra=udicial confession! -o3ingco #ascharged for murder qualified by evident premeditation and treachery.

/ppellants maintain that they could not be convicted of murder. They questionthe presence of treachery in the commission of the crime considering that no

one from the prosecution #itnesses testified on ho# Pasion #as attac3ed by-o3ingco. They also submit that evident premeditation #as not proven in thecase. They belittle -o3ingco5s e8tra=udicial admission that he and Col plannedthe 3illing. The attendance of the aggravating circumstances of nighttime andabuse of confidence #as li3e#ise assailed by appellants. They aver thatnighttime #as not purposely sought but it #as merely co)incidental that thecrime too3 place at that time. Neither has trust and confidence been reposedon appellants by the victim to aggravate the crime by abuse of confidence./ppellants claim that they #ere living in an apartment o#ned by Pasion! notbecause the latter trusted them but because they #or3ed in the constructionof the victim5s apartment.

On the other hand! the OD emphasizes that the prosecution has established

that Pasion #as defenseless #hen fatally attac3ed by -o3ingco and there #asno opportunity for him to defend himself from the une8pected assaults of-o3ingco. The OD agrees as #ell #ith the trial court5s findings that evidentpremeditation! nighttime! and abuse of confidence attended the commissionof the crime.

4e agree #ith appellants that treachery cannot be appreciated to qualify thecrime to murder in the absence of any proof of the manner in #hich theaggression #as commenced. For treachery to be appreciated! the prosecutionmust prove that at the time of the attac3! the victim #as not in a position todefend himself! and that the offender consciously adopted the particularmeans! method or form of attac3 employed by him.9' Nobody #itnessed thecommencement and the manner of the attac3. 4hile the #itness 1italicio

managed to see -o3ingco hitting something on the floor! he failed to see thevictim at that time.*2

-o3ingco admitted in open court that he 3illed Pasion.*$ -ut the admittedmanner of 3illing is inconsistent #ith evident premeditation. To #arrant afinding of evident premeditation! the prosecution must establish theconfluence of the follo#ing requisites6 %a& the time #hen the offender #asdetermined to commit the crime> %b& an act manifestly indicating that the

offender clung to his determination> and %c& a sufficient interval of timebet#een the determination and the e8ecution of the crime to allo# him toreflect upon the consequences of his act.*9

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-o3ingco because he #as not assisted at all by counsel during the time hisconfession #as ta3en before a =udge.

The finding that nighttime attended the commission of the crime is anchoredon the presumption that there #as evident premeditation. ;aving ruledho#ever that evident premeditation has not been proved! the aggravatingcircumstance of nighttime cannot be properly appreciated. There #as noevidence to sho# that -o3ingco purposely sought nighttime to facilitate thecommission of the offense.

/buse of confidence could not also be appreciated as an aggravatingcircumstance in this case. Ta3ing into account that fact that -o3ingco #or3sfor Pasion! it may be conceded that he en=oyed the trust and confidence ofPasion. ;o#ever! there #as no sho#ing that he too3 advantage of said trustto facilitate the commission of the crime.

/ do#ngrade of conviction from murder to homicide is proper for -o3ingco forfailure of the prosecution to prove the presence of the qualifyingcircumstances.

7nder /rticle 9(' of the "evised Penal Code! the applicable penalty forhomicide is reclusion temporal. There being no mitigating or aggravatingcircumstance alleged and proven in the instant case! the penalty should beapplied in its medium period pursuant to /rticle @(%$& of the "evised PenalCode! #hich ranges from a minimum of $( years! E months and $ day to ama8imum of $+ years and ( months. /pplying the

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/s a rule! conspiracy must be established #ith the same quantum of proof asthe crime itself and must be sho#n as clearly as the commission of thecrime.((

The finding of conspiracy #as premised on 0lsa5s testimony that appellantsfled together after 3illing her husband and the e8tra=udicial confession of-o3ingco.

Nobody #itnessed the commencement of the attac3. Col #as not seen at theapartment #here Pasion #as being attac3ed by -o3ingco.

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/6 -efore he sprayed the tear gas to my eyes! < #as able to see him po3e thesharp ob=ect under my chin and < bo#ed my head a little to avoid the tear gas.< #as #ounded under my chin and < felt the sharpness of the ob=ect.(:

8 8 8 8

6 4hat else happened #hile he #as doing that to youK

/6 ;e sprayed tear gas in my eyes and told me to be silent.

6 4hat else! if any! did he tell youK

/6 To open the combination of the vault.

6 id you comply to his order that you open the combination of the vaultK

/6 No! sir. < do not 3no# the combination.

6 4hat vault are you referring toK

/6 1ault of the pa#nshop.

6 4here is that pa#nshop located #ith reference to your residenceK

/6 /t the first floor is the pa#nshop and at the bac3 is our 3itchen.

6 4hen you refused to open the vault of the pa#nshop! #hat did "eynanteCol do about itK

/6 ;e did not say anything.

6 ;o# about you! #as there anything else you didK

/6 < offered him money so he #ill not 3ill me.

6 4hen you offered him money so he #ill not 3ill you! did he agreeK

/6 No! sir.

6 4hat else happened ne8t #hen he did not agree to your offer of moneyK

/6 ;e dragged me going to#ards the bac3 door.(@

-ased on these acts alone! it cannot be logically inferred that Col conspired#ith -o3ingco in 3illing Pasion. /t the most! Col5s actuations can be equatedto attempted robbery! #hich #as actually the initial information filed againstappellants before it #as amended! on motion of the prosecution! formurder.(+

0lsa testified that she heard -o3ingco call out to Col that Pasion had been3illed and that they had to leave the place. This does not prove that they actedin concert to#ards the consummation of the crime.

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-o3ingco5s =udicial admission e8culpated Col because -o3ingco admitted thathe only attac3ed Pasion after the latter hit him in the head.

/ll told! an acquittal for Col is in order because no sufficient evidence #asadduced to implicate him.

4;0"0FO"0! the appeal is D"/NT0. The ecision of the Court of/ppeals in C/)D.". C");.C. No. 22@:E is "010"0 and 0T /

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4hen he Dary #as about to leave! the gate opened and 0rnesto purportedlystruc3 him #ith a lead pipe. 0rnesto #as aiming at Dary5s head! but the latterbloc3ed the blo# #ith his hands! causing his left inde8 finger to be bro3en.Dary embraced 0rnesto! but the latter strangled him. /t that point! Dary feltthat there #as a bladed #eapon tuc3ed at 0rnesto5s bac3. Gosing control ofhimself! Dary too3 the bladed #eapon and stabbed 0rnesto! although hecannot recall ho# many times he did so.E

/ccording to Dary! 0rnesto fell to the ground! and pleaded! ?sa3lolo! tulunganniyo po a3o? three times. Dary #as stunned! and did not notice his father! co)appellant /lberto! coming. /lberto as3ed Dary! ?ana3! ano ang nangyariK? To#hich Dary responded ?nasa3sa3 3o po yata si a 0rning!? referring to0rnesto. Dary and /lberto fled! ran! since they #ere afraidallegedly out offear.'

Dary denied that he and /lberto conspired to 3ill 0rnesto. Dary claims that it#as he and 0rnesto #ho had a fight! and that he had no choice but to stab0rnesto! #ho #as going to 3ill him.$2

Dary5s sister! Demarie Tabarnero! testified that she #as a childhood friend of

Mary ,ane. Demarie attested that Mary ,ane #as Dary5s girlfriend from $'':to $'''. ometime in $'''! ho#ever! Dary and Mary ,ane #ere preventedfrom tal3ing to each other. uring that time! Dary #as al#ays sad andappeared catatonicdumbfounded! sometimes mentioning Mary ,ane5s nameand crying.$$

On the night of the incident on October 9*! $'''! Demarie observed that Dary#as crying and seemed perple8ed. Dary told Demarie that he #as going to0rnesto5s house to tal3 to 0rnesto about Mary ,ane. Dary #as crying anddumbfounded at that time. Dary allegedly did not bring anything #ith him#hen he #ent to 0rnesto5s house.$9

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3no# #here Dary proceeded after they ran a#ay. The ne8t time he sa# Dary#as three months after the incident! #hen Dary #ent to Norzagaray.92

The first to testify for the prosecution #as its eye#itness! 0merito /cibar%0merito&. 0merito! the brother of Mary ,ane!9$ #as inside their house inaang -a3al! Gongos! Malolos! -ulacan #ith his brother and his stepfather!0rnesto! at around eleven o5cloc3 on the night of the incident on October 9*!$'''. ;e heard somebody calling for 0rnesto! but ignored it. ;e then heard a?3alabog!? follo#ed by 0rnesto5s plea as3ing for help. 0merito #as about to gooutside! but! #hile he #as already at the door of their one)room99 house! hesa# 0rnesto being held by a certain Toning ?ulit? and another person! #hileDary and /lberto #ere stabbing 0rnesto #ith a fan 3nivesfe. 0merito lostcount of the number of thrusts made by Dary and /lberto! but each inflictedmore than one! and the last stab #as made by /lberto. 0merito shouted forhelp. The four assailants left #hen somebody arrived! allo#ing 0merito toapproach 0rnesto and bring him to the -ulacan Provincial ;ospital.9*

On cross)e8amination! 0merito statedconfirmed that Dary and Mary ,aneused to reside in 0rnesto5s house. On the date of the incident! ho#ever! Daryhad already left the house! #hile Mary ,ane had moved to /bra #ith Teresita

%the mother of 0merito and Mary ,ane&. /ccording to 0merito! his family didnot 3no# that Mary ,ane and Dary had a relationship because they treatedDary li3e a member of the family. 0rnesto got mad #hen because his #ife!Teresita! found out about Dary and Mary ,ane5s relationship. On the night ofthe incident! at past $$622 p.m.! 0merito #as fi8ing his things inside theirhouseat past $$622 p.m.! #hen he heard someone calling from forthemoutside! but #as not sure if it #as Dary. 0merito neither sa# 0rnestoleaving the room! nor the fight bet#een 0rnesto and Dary. /ll he sa# #as thestabbing! #hich happened seven to eight meters a#ay from the door#ay#here he #as standing him. ;e #as sure that there #ere four assailants! t#oof #hom #ent to a bridge E to $2 meters from the incident! #here theyboarded a yello# GT)type car.9(

enior Police Officer 9 %PO9& "onnie Morales of the Malolos PhilippineNational Police testified that he #as on duty at the police station on the nightof October 9*! $'''. uring that night! 0merito reported at the police stationthat 0rnesto had been stabbed. PO9 Morales and 0merito proceeded to the-ulacan Provincial ;ospital! #here PO9 Morales sa# 0rnesto in theoperating room! very #ea3 due to multiple in=uries. 4hile in the presence ofthet#o doctors on duty! PO9 Morales as3ed 0rnesto #ho stabbed him.

0rnesto ans#ered that the assailants #ere the father and son! Dary and/lberto Tabarnero from Gongos! -ulacan.9:

Cross)e8amined! PO9 Morales clarified that it #as already $622 a.m. of thefollo#ing day #hen he and 0merito proceeded to the hospital. /s they #ent tothe hospital! 0merito did not inform PO9 Morales that he #itnessed theincident. PO9 Morales did not find it odd that 0merito did not tell him #ho thesuspects #ere #hen 0merito reported the incident! because they immediatelyproceeded to the hospital! considering that the victim! 0rnesto! #as still alive.0rnesto #as not able to affi8 his signature on the inumpaang alaysay9@because he could no longer tal3 after the fourth question. /ns#eringquestions from the court! PO9 Morales further stated that he could notremember tal3ing to 0merito on their #ay to the hospital! since they #ere in ahurry.9+

The government physician at the -ulacan Provincial ;ospital #ho prepared0rnesto5s death certificate! r. /pollo Trinidad! clarified that 0rnesto died onOctober 9:! $'''. ;o#ever! considering the admission by the defense of thefact of death! the cause thereof! and the e8ecution of the death certificate! theprosecution did not proceed to solicit these facts fromno longer questioned r.

Trinidad on these matters.9E

Teresita5s testimony #as li3e#ise dispensed #ith! in light of the admission bythe defense that she #as the common)la# #ife of 0rnesto! and that sheincurred P::!@22.22 in e8penses in relation to 0rnesto5s death.9'

On /ugust 9'! 9229! the "TC rendered its ecision convicting Dary and/lberto of the crime of murder. The decretal portion of the ecision reads6

4;0"0FO"0! the foregoing considered! this Court hereby finds accused/lberto Tabarnero and Dary Tabarnero D7

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cases #here the penalty imposed is death! reclusion perpetua or lifeimprisonment. Pursuant thereto! this Court referred*9 the case to the Court of/ppeals! #here it #as doc3eted as C/)D.". C".);.C. No. 2229+.

On /pril 9'! 922:! the Court of /ppeals affirmed the conviction #ithmodification as regards e8emplary damages! disposing of the case in thefollo#ing manner6

4;0"0FO"0! the decision of the "egional Trial Court of Malolos! -ulacan!-ranch +E dated 9' /ugust 9229 is hereby /FF

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The defense further argues that assuming that Dary is not qualified to avail ofthe =ustifying circumstance of self)defense! he #ould nevertheless be entitledto the mitigating circumstance of incomplete self)defense under /rticle $*%$&of the "evised Penal Code! #hich provides6

/rt. $*. Mitigating circumstances. The follo#ing are mitigatingcircumstances6

$. Those mentioned in the preceding chapter! #hen all the requisitesnecessary to =ustify the act or to e8empt from criminal liability in the respectivecases are not attendant.

4e disagree. 7nla#ful aggression is a condition sine qua non! #ithout #hichthere can be no self)defense! #hether complete or incomplete.(9 There isincomplete self)defense #hen the element of unla#ful aggression by thevictim is present! and any of the other t#o essential requisites for self)defense.(* ;aving failed to prove the indispensable element of unla#fulaggression! Dary is not entitled to the mitigating circumstance! regardlesseven assuming of the presence of the other t#o elements of self)defense.

Dary is not entitled to the mitigating circumstance of voluntary surrender

The first assignment of error presents another issue for the consideration ofthis Court. The defense argues that Dary5s yielding to /larma should becredited as a mitigating circumstance of voluntary surrender. The olicitorDeneral agreed #ith the defense on this point. The Court of /ppeals!ho#ever! disagreed! and held that the delay of si8 months(( beforesurrendering negates spontaneity!(: a requisite for voluntary surrender to beconsidered mitigating.

4e agree #ith the Court of /ppeals.

%b& the offender surrendered himselfto a person in authority> and %c& the surrender must be voluntary. / surrender!to be voluntary! must be spontaneous! i.e.! there must be an intent to submitoneself to authorities! either because he ac3no#ledges his guilt or becausehe #ishes to save them the trouble and e8penses in capturing him.(@

%9& theoffender surrendered himself to a person in authority> and %*& the surrender#as voluntary. / surrender to be voluntary must be spontaneous! sho#ing theintent of the accused to submit himself unconditionally to the authorities!either because he ac3no#ledges his guilt! or he #ishes to save them thetrouble and e8pense necessarily incurred in his search and capture. 1oluntarysurrender presupposes repentance.

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The basis of /lberto5s conviction! ho#ever! is not solely conspiracy. / revie#of the proven facts sho#s that conspiracy need not even be proven by theprosecution in this case! since /lberto #as categorically pointed by theeye#itness! 0merito! as one of the assailants #ho actively and directlyparticipated in the 3illing of 0rnesto6

Those 9 persons #hom you sa# and #ho stabbed your stepfather in theevening of October 9*! $'''! if theyb are no# in court! #ill you be able toidentify themK

/ Ies! sir.

4ould you please point to those 9 personsK

/ %4itness pointing to the persons #ho! #hen as3ed ans#ered to the name of/lberto Tabarnero and Dary Tabarnero&

4hat #as the position of /lberto Tabarnero in that stabbing incidentK

/ ;e #as the one #hom < sa# stabbed last my stepfather.

8 8 8 8

CO7"T %TO T;0 4

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4hen you said ?lalabas po sana!? #hat do you mean by thatK

/ < am at the door and sa# #hat happened.

4hat did you seeK

/ < sa# my stepfather being held by t#o persons and being stabbed.

4ill you describe the appearance of your stepfather and the 9 persons#hom according to you #ere stabbing your stepfather at that timeK

/ My stepfather is ?lupaypay? and he #as being stabbed.

4hen you said ?lupaypay!? #ill you describe to this ;onorable Court hisposition and appearanceK

/ 4hen < sa# my stepfather he #as about to fall on the ground.

Could you describe their appearanceK

/ They #ere helping each other in stabbing my grandfather. %sic&

Those t#o persons #hom you sa# and #ho stabbed your stepfather in theevening of October 9*! $''' if they are no# in Court! #ill you be able toidentify themK

/ Ies! sir.

Could you please point to those 9 personsK

/ %4itness pointing to the persons #ho! #hen as3ed ans#ered to the name of/lberto Tabarnero and Dary Tabarnero&

4hat #as the position of /lberto Tabarnero in that stabbing incidentK

/ ;e #as the one #hom < sa# stabbed last my stepfather.

4hat about Dary! #hat is his positionK

/ ;e #as helping in the stabbing.

8 8 8 8

4hat 3ind of #eapon or instrument #ere used by Dary and /lbertoK

/ Fan 3nife! sir.

-oth of them #ere armed by a 3nifeK

/ Ies! sir.::

From said testimony! it seems uncertain #hether 0merito sa# the very firststabbing being thrust. Thus! the defense asseverates that since 0merito failedto see ho# the attac3 commenced! the qualifying circumstance of treacherycannot be considered! citing People v. /mamangpang!:@ People v.

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other circumstance #hich #ould have rendered them defenseless! the Courtruled that it should loo3 into the commencement of the attac3 in order todetermine #hether the same #as done s#iftly and une8pectedly. ;o#ever!the s#iftness and une8pectedness of an attac3 are not the only means by#hich the defenselessness of the victim can be ensured.

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Finally! the Court of /ppeals #as correct in a#arding e8emplary damages inthe amount of P9:!222.22. /n aggravating circumstance! #hether ordinary orqualifying! should entitle the offended party to an a#ard of e8emplarydamages #ithin the unbridled meaning of /rticle 99*2+2 of the Civil Code.+$

4;0"0FO"0! the ecision of the Court of /ppeals in C/)D.". C".);.C. No.2229+ dated /pril 9'! 922: is hereby /FF

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drin3 at their store. Duilbert #as immediately brought to the hospital #here helater e8pired $$6*: of the same evening. he declared that for Duilbert5smedical and hospitalization e8penses! the family spent about P*!222.22. /sfor the #a3e and burial e8penses! she could no longer estimate the amountbecause of her sadness.

Pedro! an eye#itness at the scene! corroborated Maria Giza5s testimonialaccount of the events. On that night! he #as drin3ing together #ith acompanion in Maria Giza5s store. ;e recalled Duilbert admonishing a personurinating in one of the tables fronting the store. Thereafter! he sa# theaccused pass by him! approach Duilbert and then #ithout #arning! stab thelatter. The accused then ran a#ay and left. Together #ith his drin3ingcompanion! they rushed Duilbert to the hospital. Pedro asserted that thearea5s illumination #as ?intense? because of the big #hite lamp and that he#as certain that it #as the accused #ho attac3ed Duilbert.

enial #as the accused5s main plea in e8culpating himself of the charge thathe 3illed Duilbert. ;e claimed that in the evening of May :! 9222! he and his#ife #ent to the public mar3et %ne# building& to collect receivables out of thesale of meat. /fter#ards! they too3 a short cut passing through the publicmar3et #here they chanced upon his #ife5s acquaintances #ho #ere engagedin a drin3ing spree #hile singing video3e. /mong them #ere odong anieles%odong for brevity& and his younger brother. They invited him %the accused&and his #ife to =oin them. 4hile they #ere drin3ing! odong had an altercation#ith Duilbert that stemmed from the latter5s admonition of odong5s youngerbrother #ho had earlier urinated at the Patricio5s store premises. uddenly!odong assaulted Duilbert and stabbed him. Fearing that he might beimplicated in the incident! the accused fled and #ent to the house of hisparents)in)la#. Thereafter! he #ent bac3 to the mar3et for his #ife #ho #as nolonger there. 4hen he learned that the victim #as brought to the Ormocistrict ;ospital! he #ent there to verify the victim5s condition. ;e #as able total3 #ith the mother and the #ife of Duilbert as #ell as the police. ;e #asthereafter invited to the precinct so that the police can get his statement. The

ne8t day! the parents of odong anieles came to his parents)in)la#5s houseto persuade him not to help the victim5s family. ;e declined. ;alf a monthlater! he #as arrested and charged for the death of Duilbert Patricio.

The defense also presented one Cerilo Pelos %?Cerilo?& #ho claimed to havepersonally #itnessed the stabbing incident because he #as also drin3ing inthe public mar3et on that fateful night. ;e insisted that Duilbert #as stabbed

by someone #earing a blac3 shirt! #hose identity he later on learned to beodong anieles.$$

On /ugust @! 922$! the "TC promulgated its ecision finding accused)appellant guilty of murder and decreeing thus6

4;0"0FO"0! all the foregoing duly considered! the Court finds the accused1icente 1ilbar alias i3it D7 and %*& the accused)appellant5sreaction after he stabbed the victim. Moreover! accused)appellant argues thatif he #as indeed the culprit! #hy did he approach Duilbert5s family in thehospital immediately after the stabbing incidentK Dranting #ithout admittingthat a crime of murder #as committed! accused)appellant insists that he couldonly be held guilty of homicide for it #as not proven beyond reasonable doubtthat treachery and evident premeditation e8isted. ;e specifically directs our

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attention to the follo#ing details6 %$& there #as a heated argument bet#eenthe victim and a member or members of his group> %9& the stabbing happenedin a spur of the moment> and %*& the victim then #as not completelydefenseless.

Mean#hile! the OD stresses that the alleged inconsistencies in thetestimonies of the prosecution #itnesses are minor and inconsequential giventhe positive identification of the accused)appellant as the assailant. /s to

accused)appellant5s contention that he is innocent because he even #ent tothe hospital and conferred #ith Duilbert5s relatives immediately after thestabbing incident! the OD maintains that such actuation is not a conclusiveproof of innocence.

The issues for resolution are first! the assessment of credibility of theprosecution #itnesses> and second! the propriety of conviction of theaccused)appellant for murder.$+

The Court of /ppeals rendered its ecision on February $(! 922E! in #hich itaccorded great respect to the assessment by the "TC of the credibility of the#itnesses. The inconsistencies and inaccuracies in the testimonies of theprosecution #itnesses are relatively trivial! minor! and do not impeach theircredibility. The positive identification and categorical statements of theprosecution #itnesses that it #as accused)appellant #ho stabbed Duilbertprevail over accused)appellant5s self)serving denial. ;o#ever! the appellatecourt did not find that treachery attended the stabbing of Duilbert and! thus!do#ngraded the crime to homicide.

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6 Mrs. Patricio! can you recall #here #ere you in the evening at about +622o5cloc3 of May :! 9222K

/6 < #as at the store.

6 4hereK

/6

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6 4hat did he use in stabbing your husband! this 1icente 1ilbarK

/6 nife.

6 o you 3no#! #ere you able to see #here he 3ept the 3nife #hich he usedin stabbing your husbandK

/6 From his #aist.

6 4hen the said 1icente 1ilbar delivered the stabbed thrust to your husband!#as your husband hitK

/6 ;e #as hit.

6 On #hat part of his body #as your husband hitK

/6 ,ust belo# the breast.

8 8 8 8

6 -elo# the left nippleK

/6 Ies! sir.

6 4hat happened after your husband #as hit belo# the left nippleK

/6 1icente 1ilbar ran a#ay and my husband told me to call for some help andhe said! ?

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/6 < sa# this 1icente 1ilbar stood up and pass behind me and #ent to DuilbertPatricio and =ust immediately stabbed him.

6 4hat #as the #eapon used in stabbingK

/6

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involved in the stabbing! #hy did he have to leave the place and his #ife andgo to the house of his parents)in)la# rather than their houseK The accusedshould have presented his #ife to corroborate his testimony in that regard!and also his parents)in)la# so the latter can testify regarding the allegedvisitors! the alleged parents of one odong anieles #ho came to their place#hen the accused #as also there days after the incident! telling him not tohelp the family of the victim.

The accused5s #itness! Cerilo Pelos! is the farthest of the e8pected #itnessesfor the defense. ;e and the accused #ere not acquaintances and they onlycame to 3no# each other in prison #here Pelos is also detained for anothercharge. 8 8 8. The testimony of the #itness is hazy and full of generalities!even the #ay he spea3s! the Court notes some inconsistency in his voice andincoherence in his testimony.9@

/ closer perusal of the testimony of accused)appellant5s corroborating#itness! Cerilo! reveals =ust ho# incoherent and elusive he #as in givingparticular details about the stabbing incident6

6 No#! #hile you #ere there! #hat happenedK

/6 4hen < arrived there! < arrived #ith this people having a drin3ing spree and< myself #ent to the other table near this people and this quite thin or slim guy#as standing in front of them and one of these people #ho #ere havingdrin3ing spree seemed to relieve himself not to the C.". but beside the store.

6 No#! you said a #hile ago that there #ere four %(& companions of theaccused. No#! tell us! #ere all of the four %(& people that you are referring tothat e8clude the accusedK

/6 There #ere four %(& of them including the accused! sir.

6 No#! you said that there #as somebody from the group #ho relievedhimself! is that rightK

search

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o5cloc3 in the evening! and that immediately before the incident! accused)appellant #as at the same place having a drin3ing spree #ith a certain/rcadio anieles! ,r. and t#o other companions. ;o#ever! accused)appellantdenied that it #as he #ho stabbed Duilbert Patricio.: Trial then ensued.

The prosecution presented the testimonies of Maria Giza Patricio %MariaGiza&!@ the #ido# of the deceased! and Pedro Guzon %Pedro&!+ an eye#itnessat the scene. The defense offered the testimonies of accused)appellantE

himself and Cerilo Pelos %Cerilo&!' another eye#itness. On rebuttal! theprosecution recalled Pedro to the #itness stand.$2

-elo# is a summary of the testimonies of the #itnesses for both sides6

Maria Giza testified that in the evening of May :! 9222! she #as #atching herchild and at the same time attending to their store located in the Ormoc Citypublic mar3et.

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%9& #hat MariaGiza #as doing at the e8act time of stabbing> and %*& the accused)appellant5sreaction after he stabbed the victim. Moreover! accused)appellant argues thatif he #as indeed the culprit! #hy did he approach Duilbert5s family in thehospital immediately after the stabbing incidentK Dranting #ithout admittingthat a crime of murder #as committed! accused)appellant insists that he couldonly be held guilty of homicide for it #as not proven beyond reasonable doubtthat treachery and evident premeditation e8isted. ;e specifically directs ourattention to the follo#ing details6 %$& there #as a heated argument bet#eenthe victim and a member or members of his group> %9& the stabbing happenedin a spur of the moment> and %*& the victim then #as not completelydefenseless.

Mean#hile! the OD stresses that the alleged inconsistencies in thetestimonies of the prosecution #itnesses are minor and inconsequential giventhe positive identification of the accused)appellant as the assailant. /s toaccused)appellant5s contention that he is innocent because he even #ent tothe hospital and conferred #ith Duilbert5s relatives immediately after thestabbing incident! the OD maintains that such actuation is not a conclusiveproof of innocence.

The issues for resolution are first! the assessment of credibility of theprosecution #itnesses> and second! the propriety of conviction of theaccused)appellant for murder.$+

The Court of /ppeals rendered its ecision on February $(! 922E! in #hich itaccorded great respect to the assessment by the "TC of the credibility of the#itnesses. The inconsistencies and inaccuracies in the testimonies of theprosecution #itnesses are relatively trivial! minor! and do not impeach their

credibility. The positive identification and categorical statements of theprosecution #itnesses that it #as accused)appellant #ho stabbed Duilbertprevail over accused)appellant5s self)serving denial. ;o#ever! the appellatecourt did not find that treachery attended the stabbing of Duilbert and! thus!do#ngraded the crime to homicide.

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Case la#s mandate that ?#hen the credibility of a #itness is in issue! thefindings of fact of the trial court! its calibration of the testimonies of the#itnesses and its assessment of the probative #eight thereof! as #ell as itsconclusions anchored on said findings are accorded high respect if notconclusive effect. This is more true if such findings #ere affirmed by theappellate court! since it is settled that #hen the trial court5s findings have beenaffirmed by the appellate court! said findings are generally binding upon thisCourt.?9$ There is no compelling reason for us to depart from the general rule

in this case.

Prosecution #itnesses Maria Giza and Pedro both positively and categoricallyidentified accused)appellant as the one #ho stabbed Duilbert.

Maria Giza vividly recounted her traumatic moment as follo#s6

6 Mrs. Patricio! do you 3no# the accused in this case in the person of1icente 1ilbar alias ?i3itK?

/6 Ies! sir.

6 4hy do you 3no# himK

/6 ;e used to go there for drin3ing in our store.

6 ;o# long have you 3no#n this personK

/6 /bout three %*& months.

8 8 8 8

6 Mrs. Patricio! can you recall #here #ere you in the evening at about +622o5cloc3 of May :! 9222K

/6 < #as at the store.

6 4hereK

/6

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#herein they #ere drin3ing to #here he urinated from #here the group #asdrin3ingK

/6 ,ust near.

6 4hen you said near! can you estimate the distanceK

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/6 4hen he arrived he #as #ith his child.

6 /nd #hat did he do #ith the childK

/6 ;e carried his child in his arms.

6 /nd then #hat happened after he carried his childK

/6 There #as someone #ho Lurinated some#here behind us and he #asadmonished by this Duilbert Patricio by saying! ?-ay! don5t urinate there it#ould someho# create a bad smell and considering that this is a drin3ingarea.?

6 4ho #as that person #ho relieved himself =ust nearbyK

/6 < did not 3no#.

6 4hose group #as he coming fromK

/6 From 1icente 1ilbar5s companion.

6 id that person #ho #as admonished accede to the request of DuilbertPatricio not to relieve =ust nearbyK

/6 ;e =ust did not do something! he =ust relieved.

6 o that person #ho #as admonished in fact urinatedK

/6 Ies! sir.

6 /nd so #hat happenedK

/6 < sa# this 1icente 1ilbar stood up and pass behind me and #ent to DuilbertPatricio and =ust immediately stabbed him.

6 4hat #as the #eapon used in stabbingK

/6

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6 Could it be more than five %:& timesK

/6

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/6 < as3ed from those #ho #ere there hanging out if ever they 3no# thatperson.

6 id you not follo# the assailant after the stabbing incidentK

/6 No sir! because after < as3ed about his name from the bystanders! nonetheless! PO9 embran left P(22.22! #hich #as placed beside him. ;etoo3 the money! because it might get lost. /t around *622 ocloc3 in theafternoon of the same day! PO9 embran came bac3 to the stall and #aitedfor him. 4hen he arrived! he gave to PO9 embran #hat he bought. /ccused)appellant admitted! although not certain! that #hat he bought #as shabu!

#hich he gave to PO9 embran. /fter accused)appellant handed over theshabu and #hile he #as leaving the place! PO9 embran called him bac3uttering! Pare! come here! and then handcuffed him. PO9 embran told him!Pare! < am a policeman %pulis a3o&. On cross e8amination! accused)appellantadmitted buying the sub=ect shabu in 7rdaneta City.

/fter hearing! the trial court rendered =udgment on the merits. Finding that theprosecution had proven accused)appellants guilt beyond reasonable doubt!the "TC promulgated its ecision on 9$ ,une 922( convicting him of theoffense charged! sentencing him to Gife

/ccused)appellant appealed the decision of the "TC to the Court of /ppeals.On *2 November 922:! the Court of /ppeals rendered a ecision affirmingthe challenged decision of the trial court! reasoning thus6LThere is no rigid or te8tboo3 method of conducting buy)bust operations. Thechoice of effective #ays to apprehend drug dealers is #ithin the ambit of thepolice authority police officers have the e8pertise to determine #hich specificapproaches are necessary to enforce their entrapment operations. The courtsduty in these cases is to ensure that the rights of the accused have not beenviolated during buy)bust operations.

The failure of the police authorities to comply strictly #ith the angerousrugs -oards "esolution on the chain of custody of the seized shabu and its

preservation! by itself! is not fatal to the prosecutions case. 4hat is essentialor necessary is that after the sub=ect shabu #as seized! the same #as dulyidentified! mar3ed or preserved! and duly submitted to the crime laboratory fore8amination. 8 8 8.

8 8 8 8

8 8 8 4e al#ays adhere to the #ell)entrenched doctrine in our =urisdiction thatthe findings of facts of the trial court! its calibration of the collectivetestimonies of the #itnesses! its assessment of the probative #eight of theevidence of the parties as #ell as its conclusions anchored on said findingsare accorded by the appellate court high respect.

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T;0 GO40" CO7"T D"/10GI 0""0

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/ccused)appellant himself confirmed and admitted to the occurrence of saidtransaction. Follo#ing his testimony! he admitted to ta3ing the P(22.22 left byPO9 embran for the purchase of shabu! thereafter going to his allegedsource in 7rdaneta City! and then returning #ith the shabu to the "osalesPublic Mar3et! and handing the sachet over to PO9 embran. The foregoing#ere not only undisputed but #ere! in fact! admitted by accused)appellanthimself in his testimony. Thus! there is no denying that the said transactionindeed too3 place.

esperate to get himself absolved from culpability! accused)appellant submitsin the alternative that the facts as presented by the prosecution reveal that thela# enforcers! specifically PO9 embran! instigated him to sell shabu./ccused)appellant claims that it #as PO9 embran #ho approached andas3ed him to buy shabu! leaving the money even if he said he did not 3no#anybody selling shabu.

4e find no instigation in this case. The general rule is that it is no defense tothe perpetrator of a crime that facilities for its commission #ere purposelyplaced in his #ay! or that the criminal act #as done upon the decoy solicitation

of persons see3ing to e8pose the criminal! or that detectives feigningcomplicity in the act #ere present and apparently assisting in its commission.This is particularly true in that class of cases #here the offense is of a 3indhabitually committed! and the solicitation merely furnishes evidence of acourse of conduct. Mere deception by the detective #ill not shield defendant!if the offense #as committed by him free from the influence or the instigationof the detective.L$E

;ere! the la# enforcers received a report from their confidential informant thataccused)appellant #as engaged in illegal drug trade in the public mar3et of"osales. Poseur)buyer PO9 embran then pretended to be engaged in thedrug trade himself and! #ith the help of his fello# buy)bust operatives!

arrested accused)appellant in the act of delivering the shabu to him.

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Contrary to appellants claim! there is no bro3en chain in the custody of theseized items! later on determined to be shabu! from the moment of its seizureby the entrapment team! to its delivery to the investigating officer! to the time it#as brought to the forensic chemist at the PNP Crime Gaboratory forlaboratory e8amination.

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documentary and real evidence> and! more importantly! on the oral evidenceof prosecution #itnesses! #hom #e found to be credible. One #itness issufficient to prove the corpus delicti ) that there #as a consummated salebet#een the poseur)buyer and the accused ) there being no quantum of proofas to the number of #itnesses to prove the same. To emphasize! accused)appellant himself verified in his testimony that the said transaction too3 place.

The inconsistencies pointed out by the defense pertaining to #hether or nothe #as already inside the public mar3et of "osales at the time the operativesreturned! or if the buy)bust team sa# him alighting from a tricycle! is aninconsistency immaterial to the commission of the offense and! thus! cannotaffect the overall credibility of the prosecution #itnesses.

The records of the case indicate that after his arrest! accused)appellant #asta3en into police custody. /fter the arrest! the seized item! #hich had themar3ing 0N and alleged to contain shabu! #as brought to the PNP crimelaboratory for e8amination.L99 The request for laboratory e8amination andtransfer of the confiscated sachet to the PNP crime laboratory #as preparedby Chief of Police Policarpio C. Cayabyab! ,r.L9* The request indicated thatthe seized item #as delivered by PO* "esuello! ,r. and received by Forensic

Chemist PH