FIRST DIVISION

G.R. Nos. 149430-32 February 23, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
CARMELO CATBAGAN, appellant.

DECISION

PANGANIBAN, J.:

There can be no self-defense, whether complete or incomplete, unless

the victim had committed unlawful aggression against the person who
resorted to self-defense.

The Case

Carmelo Catbagan appeals the May 19, 1999 Decision1 of the Regional
Trial Court (RTC) of Malolos, Bulacan (Branch 21), in Criminal Case
Nos. 1082-M-98, 1083-M-98 and 1099-M-98. In these cases, he was
convicted of homicide, murder and frustrated murder, respectively.

The decretal portion of the RTC Decision reads as follows:

"In sum and considering the foregoing findings, the Court hereby
resolves and so states that the defense has not been able to overcome
the moral certainty established upon the accused’s culpability. Stated
otherwise, the prosecution has successfully discharged its undertaking
herein. Accordingly, this Court finds and so holds that accused Carmelo
Catbagan is GUILTY beyond reasonable doubt of the crimes of
Homicide in Crim. Case No. 1082-M-98, Murder in Crim. Case No.
10[8]3-M-98 and Frustrated Murder in Crim. Case No. 1099-M-98.

"In Criminal Case No. 1082-M-98, the Court hereby credits the accused
with the mitigating circumstance of incomplete self-defense pursuant to
Article 13, paragraph 1 of the Revised Penal Code. In which event, what
should be imposable as penalty is the minimum of Reclusion Temporal.
Considering the application of the Indeterminate Sentence Law, accused
Carmelo Catbagan is hereby sentenced to suffer the indeterminate
prison term of ten (10) years and one (1) day of Prision Mayor maximum
to fourteen (14) years of Reclusion Temporal minimum.

"In Criminal Case No. 1083-M-98, absent any circumstance that would
aggravate the commission of the crime, the accused is sentenced to
suffer the penalty of Reclusion Perpetua together with the accessory
penalties.

"In Criminal Case No. 1099-M-98, since the crime committed is Murder
in its frustrated stage, it is the penalty next lower in degree that should
be imposed, which is Reclusion Temporal. However, with the application
of the Indeterminate Sentence Law, accused Carmelo Catbagan is
hereby sentenced to suffer the indeterminate prison term of ten (10)
years of Prision Mayor medium to fifteen (15) years of Reclusion
Temporal medium.

"In addition to the foregoing, the accused is also directed to pay the heirs
of deceased Celso Suico the sum of ₱500,000.00 in loss of earning
capacity, ₱50,000.00 as indemnity for Suico’s death, and the further sum
of ₱100,000.00 as and for moral damages. With respect to deceased
Danilo Lapidante, the accused is ordered to pay his heirs the sum
₱400,000.00 in loss of earning capacity, the sum of ₱50,000.00 as
indemnity for Lapidante’s death, the sum of ₱100,000.00 as moral
damages, and also the amount of ₱50,000.00 x x x for actual damages.
Finally, respecting complainant Ernesto Lacaden, the accused is
directed to pay him the sum of ₱50,000.00 as and for moral damages
and the sum of ₱6,400.86 as actual damages.

"With costs against the accused."2

Except for the names of the victims, two (2) similarly worded criminal
Informations3 in Criminal Case Nos. 1082-M-984 and 1083-M-98,5 both
dated July 21, 1998, charged appellant as follows:

"That on or about the 15th day of March, 1998, in the [M]unicipality of

San Jose del Monte, [P]rovince of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, armed
with a gun, caliber .9MM pistol, and with intent to kill one x x x, did then
and there wilfully, unlawfully and feloniously, with evident premeditation
and treachery, attack, assault and shoot with the said caliber .9MM pistol
said x x x, hitting the latter on the different parts of his body, thereby
inflicting upon him mortal wounds which directly caused the death of the
said x x x."6

For the third crime, the Information,7 also dated July 21, 1998, charged
appellant with frustrated murder allegedly committed in this manner:

"That on or about the 15th day of March, 1998, in the [M]unicipality of

San Jose del Monte, [P]rovince of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, armed
with a caliber .9MM pistol, did then and there wilfully, unlawfully and
feloniously, with intent to kill, evident premeditation and treachery,
attack, assault and shoot with the said caliber .9MM pistol one Ernesto
Lacaden y Tacata, thereby inflicting upon him physical injuries, which
ordinarily would have caused the death of the said Ernesto Lacaden y
Tacata, thus performing all the acts of execution which should have
produced the crime of murder as a consequence, but nevertheless did
not produce it by reason of causes independent of his will, that is, by the
timely and able medical assistance rendered to said Ernesto Lacaden y
Tacata which prevented his death."8

Appellant was arraigned on August 26, 1998 in Criminal Case Nos.

1082-M-98 and 1083-M-98. With the assistance of counsel de oficio,9 he
pleaded not guilty to both charges.10 Thereafter, he was arraigned in
Criminal Case No. 1099-M-98, in which, with the assistance of his
counsel de oficio,11 he also pleaded not guilty.12

Upon motion of appellant, the three cases were consolidated. After

pretrial, trial on the merits ensued, and the lower court eventually
promulgated its assailed Decision. Counsel13 for appellant filed the
Notice of Appeal14 on July 5, 1999, but upon discovering that it
contained an error in the designation of the court to which the case was
being appealed, he filed an amended Notice of Appeal on September
10, 1999.15

The Facts

Version of the Prosecution

In its Brief,16 the Office of the Solicitor General (OSG) presents the
prosecution’s version of the facts as follows:

"Danilo Lapidante, an employee of the Manila Water Company, held his

birthday party on March 15, 1998, one day in advance of his actual
birthdate. That was intended to accommodate his many relatives and
friends who trooped to his residence that Sunday at Block 5, Lot 28,
Phase C-1 Francisco Homes, Barangay Mulawin, San Jose del Monte,
Bulacan Province. As it was already summertime, and on account of the
big attendance, the party had to be held in a vacant space within the
fenced perimeter, with vehicular and pedestrian steel gates. In front
thereof was a narrow concrete street.

"Inasmuch as Lapidante saw to it that drinks like gin and beer and
appetizers were plenty, even before 10:00 A.M., inevitably, the revelers
were already displaying excitement. Some were engaged in singing over
a ‘karaoke,’ while one Sgt. Celso Suico of the Philippine Air Force and of
the elite Presidential Security Group, who lived in another phase of the
subdivision, demonstrated his exuberance by firing shots into the air with
his Armalite rifle. Since the gunshots continued to ring out, and election
gun ban was then in effect, the attention of Carmelo Catbagan, an
investigator of the Criminal Investigation Service, Philippine National
Police, whose residential unit was just one block away south of the
Lapidantes, was called.

"When, by 5:00 p.m., Catbagan went there to verify from the group who
among them had been firing the rifle, no one of those within the fenced
area gave a positive answer. The embar[r]assed Catbagan left the
place. Coincidentally, some minutes before that, Lapidante, driving his
owner-type jeep, conducted home some of his guests. Accompanying
him were Sgt. Suico and his companion Ernesto ‘Jun’ Lacaden. Even as
they returned the Armalite to the PSG’s residence at Phase M, Suico
substituted it with a government-issued Springfield .45 caliber pistol
which he tucked to his waistband as they went back to rejoin the party.

"By about 5:30 p.m., while the celebrants were being entertained with a
song by the eldest daughter of Lapidante, Catbagan with [Zosimo] (Jess)
Fababier returned to Lapidante’s place on board a motorized tricycle.
This time, after he alighted on the street in front, when Catbagan
inquired about the gunshots of the Armalite, Sgt. Suico answered that
‘It’s nothing; it’s just a part of the celebration’. Suddenly, a piece of stone
hurled from the direction of the celebrant’s house landed on a tree and
thence to the body of Catbagan. Irritated and reacting thereto, the CIS
agent directed Fababier to look for the one who threw the stone.

"At that moment, Sgt. Suico got out of the pedestrian steel gate and
extended his hand towards Catbagan in the street as he introduced
himself as being a PSG. Completely ignoring the gesture of the latter,
Catbagan drew out his .9mm automatic pistol and with both hands
holding the gun, fired successively at Suico, who when hit stretched out
his hand, shouting ‘Huwag (Don’t) Pare.’ Despite this Catbagan fired
more shots at the victim who fell on the pavement, bloodied and dying
from mortal wounds.

"As the shots were fired, Jun Lacaden who was taking a nap on the front
seat of the owner-type jeep parked on the other side of the street, in
front of the residential unit of Aida Villanueva, was abruptly awakened.
Not fully aware of what happened, he disembarked therefrom without
knowing what to do. Unexpectedly, two shots were also fired at him by
Catbagan. One bullet found its mark in the body of Jun Lacaden who
then fell down.

"Almost simultaneously, Catbagan directed his attention to Lapidante

who was then inside their compound in the vicinity of their steel main
gate. Upon the prompting of his wife Rosita for him to run and evade the
assailant, the celebrant turned towards the main door of their house. But
before he could reach the safety of their abode, two rapid shots were
aimed by Catbagan at him, one of which hit him in the upper part of his
body.

"After causing the mayhem, Catbagan then proceeded eastward to the

main road. Thereupon, Charles Lacaden picked up the weapon of the
PSG man and threw it to a vacant lot somewhere at the rear of the
house and lot of Lapidante. As a consequence of the injuries they
sustained, Sgt. Suico died on the spot; Lapidante later died in the
hospital in Lagro, Quezon City; whereas Jun Lacaden had to be treated
and confined at the East Avenue Medical Center, Quezon City.

"Police investigators went to the scene and there recovered some pieces
of evidence.

The .45 caliber Springfield pistol of Suico was retrieved in a place at the
back of the Lapidante residence. With a bullet vertically standing on the
chamber, it had misfired due to some vital defects. There were six (6)
live ammunitions of the .45 caliber pistol excluding the vertical one. No
empty shell of .45 caliber pistol were recovered. There were nine (9)
empty shells of the .9 mm pistol; and a deformed slug of the same
weapon, aside from many shells from the Armalite rifle.

"Upon examination of Sgt. Suico’s body, Dr. Dominic Aguda of the

National Bureau of Investigation found four (4) gunshot wounds, to wit:

No. 1 - left upper chest;

No. 2 - left chest above left nipple;

No. 3 - left anterior portion of forearm;

No. 4 - right palm (inside)

"Dr. Aguda concluded that the victim died from massive bleeding of the
four injuries. The most fatal was wound No. 1 as it perforated the aorta
and the right upper lung. Death therefrom was instantaneous. He opined
that this wound was inflicted in a level from a higher plane, whereas the
others may have been inflicted on some level with the victim. Suico died
of massive bleeding.

"As regards the victim Lapidante, as shown by Dr. Aguda’s schematic

sketch and the post-mortem autopsy report, the entry wound was at the
left side of the back, exiting at the right anterior portion of the chest in a
forward and upward trajection. The bullet hit the upper left tube of the left
lung and then penetrated the upper lobe of the right lung. The victim also
died from massive bleeding.

"From the shapes and measurement of the wound of entry, Dr. Aguda
stated that the (weapon) firearm used in the shooting of the two victims
were probably the same, they being approximately 1 x 1 cm.

"With respect to Jun Lacaden, Dr. Cristina Atienza of the East Avenue
Medical Center found that he was hit at the right side of the back, the
scapular and the bullet exited at the uppermost part of the left arm, near
the armpit. She said that as the slug entered the thoracic cavity, they
had to insert a tube to evacuate blood. Said victim was confined for
more than one week, and it would have taken another 30 days for the
victim to resume his usual activity."17

Version of the Defense

Appellant argues that he was justified in shooting the victims, as he was

merely defending himself and fulfilling his sworn duties. On the basis of
these justifying circumstances, he insists on his acquittal. In his Brief,18
he summarizes his version of the facts as follows:

"The defense had a different version of the circumstances that led to the
shooting incident on March 15, 1998. On said date, between 9:00 and
11:00 in the morning, ERNESTO PURBOS heard successive gunshots
coming from the residence of Danilo Lapidante at San Francisco Homes,
San Jose del Monte, Bulacan. The gunshots numbered about ten (10) in
the span of two (2) hours. Alarmed and scared, as there were children
then playing in the vicinity, he went to the house of Carmelo Catbagan to
report the gun firing incident. He pleaded Catbagan, known in their place
as a policeman, to maintain the peace in the neighborhood. He was
worried that the children might be hit accidentally by the revelry.
Catbagan retorted not to mind the revelers, as they were just drinking.
He then went home.

"At around 4:00 in the afternoon, he again heard successive gunshots

coming from the house of the Lapidantes. The gunshots were louder and
rapid in succession. Fearing for the safety of the children playing in the
vicinity, he again proceeded to the house of Catbagan, pleading the
latter to pacify or maintain order in the place. Catbagan replied that he
would call the attention of the Barangay Captain and advised him to go
home.

"ZOSIMO PAVABIER corroborated the testimony of witness Ernesto

Purbos. On March 15, 1998, between the hours of 9:00 and past 11:00
in the morning, he heard several gunshots coming from the house of
Danilo Lapidante. The reverberating gunshots were again heard at
around 4:00 in the afternoon, prompting him to go out to the street to
observe the commotion. In the street, he saw children playing as well as
a group of his neighbors talking about the gunshots coming from the
house of the Lapidantes. The neighbors were complaining that the
children might be accidentally hit and that there was a gunban. On his
way home, he met Carmelo Catbagan, who asked if he would
accompany him to the barangay captain to report the incident. Catbagan
was then limping and there was something bulging in his waist. They
proceeded to the house of the barangay captain onboard a tricycle.
Upon reaching the place, the wife of the barangay captain informed
them that her husband left for the police precinct and instructed them to
proceed to the house of the Lapidantes as the barangay captain might
be already there. Catbagan then told him to proceed to the barangay hall
to call upon the tanods, but the place was closed. They then proceeded
to the house of Danilo Lapidante.
"At the residence of the Lapidantes, they found several persons
engaged in a drinking session. Catbagan then introduced himself as a
CIS and inquired who fired the firearm. The merrymakers ignored
Catbagan and continued their merrymaking. Seconds later, somebody
threw a fist sized stone at Catbagan, hitting the lat[t]er on the shoulder.
The stone came from the side of the kitchen of the Lapidantes.
Catbagan directed him to find out who threw the stone. After he had
taken five steps, he saw Danilo Lapidante emerge from the side of the
kitchen, rushing towards Catbagan. About the same moment, Jun
Lacaden and Celso Suico were likewise proceeding towards the gate.
Lacaden then went on the side of Catbagan, who was stepping
backward, while Suico, uttering that he is a PSG, drew his .45 caliber
pistol and cocked it. Instinctively, Catbagan drew his gun and fired at
Suico, hitting the latter with three shots. Lacaden, who was attacking
Catbagan from the side, was shot by the latter once. Seeing what
happened to his companion, Danilo Lapidante hurriedly retreated
towards his house, shouting repeatedly ‘akina iyong mahaba’. Catbagan
made one shot upward, yelling at Lapidante, ‘pare, pare, huwag kang
tatakbo’. As Lapidante continued proceeding towards his house,
Catbagan fired at him once. Taken aback by the sudden turn of events,
he retreated towards his house and just peeped over the window. He
then saw Catbagan rushing towards his own house, gather his children
and leave. At around 6:30 in the evening, he was picked-up by police
authorities for investigation.

"JONATHAN BELLOSILLO, the Barangay captain of Barangay

Mulawin, Francisco Homes San Jose del Monte, Bulacan, confirmed that
a complaint/report was made by Carmelo Catbagan at his home office,
anent a gunfiring incident, at around 4:30 in the afternoon of March 15,
1998. The Barangay Captain likewise testified on the several complaints
he received against Danilo Lapidante, for conducting gambling and Jun
Lacaden, for mauling incidents.

"The accused, CARMELO CATBAGAN, testifying on his behalf, averred

that he is a regular agent of the Criminal Investigation and Detection
Group (CIDG), with a rank of Crime Investigator I. As a regular agent of
the CIDG, he was issued two (2) official firearms, a 9MM Jericho pistol
and a.38 caliber revolver. His principal duties were to protect the
innocent against deception, [and] against violence, arrest felons, and in
general, to respond to all calls for public assistance.

"On March 15, 1998, he was at his residence at Block 5, Lot 11, Phase
6-1, Francisco Homes, San Jose del Monte, Bulacan, tending to his five
(5) children. His wife was then in the province. At around 9:00 to 11:00 in
the morning, he heard several burst[s] of gunfire coming from the
direction of the rear portion of his house. A neighbor, Ernesto Purbos,
then came to his house complaining about the gunshots. ‘Manong
Erning’ wailed that the gunshots might accidentally hit the children
playing in the street. Having told from where the gunshots came from, he
pacified the complainant telling him that the revelers were just engaged
in merrymaking and that they will just stop later on. Ernesto Purbos then
went home.

"The peace in the vicinity was again disturbed at around 4:00 in the
afternoon of the same day. Loud burst of rapid gunshots, to the tune of
the song ‘Let’s Go’, were again heard coming from the same direction as
that in the morning. From his experience, he knew that the firearm used
was an armalite (M-16). Two of their neighbors came to him complaining
about the gunshots. He advised them to go to the barangay captain and
he will just follow after finishing his chores. He then heard a woman
scream, complaining that the shots were being directed towards the
firewall of the house neighboring that of the Lapidantes. Ernesto Purbos
likewise returned, echoing his previous complaint about the gunshots.
He assured Purbos that he would act on his complaint, but first he would
go to the barangay captain to report the incident. He then got his service
firearm and went out. On his way to the house of the barangay captain,
he met Zosimo Pavabier, who likewise complained of the gunshots. He
asked Pavabier to accompany him and the two of them proceeded to the
house of the said official. When they reached their destination, however,
the wife of the barangay official told them that her husband has gone to
the Police on the Block Headquarter. Learning the purpose of their visit,
the wife told them to just proceed to the vicinity in question as her
husband might already be there. On their way, they went by the
barangay hall to fetch some ‘tanods’, but the place was closed. They
then proceeded to the house of the Lapidantes.

"Upon reaching the house of the Lapidantes, Catbagan and Pavabier

noticed that the Barangay Captain was not yet there. They likewise
noticed that there were several persons having a drinking spree inside
the compound. Catbagan introduced himself as a CIS and inquired upon
the group who fired the gunshots. The merrymakers, however, ignored
him and laughed. As he was telling the group that: ‘Don’t you know there
are many residents here and you might hit somebody’, a fist sized stone
was thrown which hit his left shoulder. The stone came from the rear of
the house of the Lapidantes. Alerted by the hostility of the crowd, he
instructed Pavabier to look for the one who threw the stone at him. As
Pavabier was about to comply with his instructions, Danilo Lapidante
emerged from the side of his house and rushed to where he was
standing, uttering: ‘ano ba ang problema pare?’ About the same time,
two more persons suddenly came out of the compound of the
Lapidantes, rushing and encircling him. One of the aggressors, Ernesto
Lacaden, was toting an ice-pick on one hand and positioned himself at
his side. The other, whose identity he did not kn[o]w at that moment,
went straight to him, drew a gun from his waist and cocked it, after
which, aimed the pistol at him, uttering ‘Pare PSG ito’, in an arrogant
voice. Threatened of his safety, he drew his own gun while stepping
backward and fired at the aggressors.

"Simultaneously, Danilo Lapidante retreated towards his house,

shouting: ‘Akina yung mahaba, yung mahaba’, while Jun Lacaden
attacked him coming from the side, with the ice-pick. Catbagan side
stepped and fired a shot at Lacaden before turning his attention at
Lapidante. He fired a warning shot, uttering: ‘Tumigil ka, huwag kang
kikilos’. Lapidante, however, did not heed Catbagan’s warning and
continued rushing towards his house, as if to get something. Fearing that
Lapidante might be able to get hold of the long gun, Catbagan fired a
shot at him once.

"Concerned for his safety and that of his family, Catbagan brought his
five children to the house of his sister in Malabon, Metro Manila. He then
surrendered himself and his firearms to his superior officer at the CIDG
Office.

"ATTY. VIRGILIO PABLICO Y TABALBA, Chief of the CIDG Legal

Office and immediate superior of the accused, testified on the latter’s
official duties and functions as well as his voluntary surrender on March
16, 1998[.] Accordingly, accused Carmelo Catbagan was appointed as a
regular and non-organic member of the CIDG, with a rank of Criminal
Investigator I. His official functions include the authority to conduct
investigation of cases involving violations of the Revised Penal Code
and other special laws, to effect arrest and to conduct search in
accordance with existing rules, to take sworn statements and to appear
as a witness in appropriate forum. As a regular agent, Catbagan was
issued and authorized to carry a firearm. The issued firearm to Catbagan
was a 9MM Jericho pistol, with Serial No. 000748. Catbagan, as a CIDG
agent, was likewise deputized by the COMELEC and granted an
exemption to carry firearm during election period.

"On March 15, 1998, at around 8:00 to 10:00 in the evening, he received
a telephone call from Agent Catbagan, informing him that he was
involved in a shooting incident, wherein he was able to shoot three (3)
persons. Two (2) of the protagonists allegedly died and the other was
wounded and taken to a hospital. Catbagan intimated that he wanted to
be put under his custody as soon as he made arrangements for his
children’s security. On March 16, 1998, at around 1:00 in the afternoon,
Catbagan presented himself to Police Superintendent Edgardo Acuña
together with his service firearm."19

Ruling of the Trial Court

The RTC held that appellant did not know who had fired the gunshots at
Lapidante’s party; thus, he could not claim that he had gone there to
perform his duty to make an arrest. Consequently, it brushed aside his
defense of fulfillment of duty, or lawful exercise of a right or office. It did
not give credence, either, to his invocation of self-defense.

With respect to Celso Suico in Criminal Case No. 1082-M-98, the trial
court ruled that there was unlawful aggression on the part of the victim,
but that the means employed to repel such aggression was
unreasonable. It "entertain[ed] serious doubts on the right of the
[appellant] to continue firing at Suico after the latter was dispossessed of
his gun due to the injuries received from the gunfire of the assailant."20 It
credited appellant with incomplete self-defense, because he supposedly
lost the right to kill or even wound the victim after the unlawful
aggression had ceased.

The RTC refused to qualify the crime against Suico. Ruling that there
had been no evident premeditation and treachery in the killing, it found
appellant guilty only of the crime of homicide.

As regards the victim Danilo Lapidante in Criminal Case No. 1083-M-98,

he was undisputedly unarmed, as he was inside his own premises --
within his fenced front yard -- at the time of the incident. Thus, the lower
court found no act of aggression on his part. It held that "the belief on the
part of [appellant] that the victim was about to retrieve a rifle from the
doorside of the house, existed only in his imagination."21 Consequently,
"there was no moment for [appellant] to validly state that his own life
[was] in imminent danger from Lapidante."22

Aside from rejecting self-defense, the trial court also held that treachery
had attended the killing, because the unarmed victim had unexpectedly
been shot while his back was towards appellant.

Finally, in Criminal Case No. 1099-M-98, the court a quo found that
Ernesto Lacaden had been shot in the back, apparently while "in the act
of fleeing from the fury of gunfire from [appellant]."23 It did not accept the
allegation that the victim had been carrying an ice pick at the time of the
shooting. Nonetheless, it explained that even if he indeed had one at the
time, he could not have done any real harm to appellant who was just
too far from him. Absent any clear and convincing proof that Lacaden
committed unlawful aggression, self-defense -- whether complete or
incomplete -- could not be appreciated.

The RTC found the crime against Lacaden to be qualified by treachery,

as he had not posed any imminent danger to appellant. It ruled that
treachery was proven by the following circumstances: (1) the fact that
the victim was running away from the scene of the crime; and (2)
appellant’s use of his .9 mm automatic pistol, a lethal weapon used to
wound the former’s vital organs. Since death did not ensue by reason of
causes independent of the will of appellant, the court a quo found him
guilty of frustrated murder.

Hence, this appeal.24

The Issues

Before us, appellant assigns to the trial court the following alleged errors
for our consideration:

"I

The court a quo gravely erred in finding accused-appellant Carmelo

Catbagan guilty beyond reasonable doubt of the offenses charged in
Criminal Case Nos. 1082-M-98, 1083-M-98 and 1099-M-98,
respectively.

"II

The court a quo gravely erred in failing to rule that accused-appellant

Carmelo Catbagan acted in the fulfillment of his sworn duties and/or
acted in self-defense in the commission of the offenses charged.

"III

Granting arguendo that the accused-appellant’s guilt was proven beyond

reasonable doubt, the court a quo still committed a reversible error in not
considering the attendance of the mitigating circumstance of voluntary
surrender in the imposition of the appropriate penalties for the offenses
proved during the trial."25

In sum, the issues to be resolved are as follows: 1) whether appellant

was justified in shooting the victims as a direct result of his "fulfillment of
a lawful duty" and "self-defense"; 2) whether he could be credited with
the mitigating circumstance of voluntary surrender; and 3) whether the
characterization of the crimes and penalties imposed by the trial court
was correct.

The Court’s Ruling

The appeal is partly meritorious.

First Issue:

Fulfillment of a Lawful Duty

In criminal cases, the prosecution has the burden of establishing the

guilt of the accused beyond reasonable doubt. But once the commission
of the act charged is admitted, the burden of proof shifts to the accused,
who must now prove the elements of the justifying circumstances
cited.26

Appellant invokes his lawful performance of duty as one such

circumstance, arguing that "his presence at the scene of the incident,
prompted by the complaints in their neighborhood and his own personal
knowledge relative to the wanton discharge of a firearm, the effectivity of
the election gun ban, his coordination with the authorities of the
barangay, and the inquiry he made to the revellers, were all in
consonance with the legitimate performance of a sworn duty."27 Citing
these specific facts, he argues that he was justified in shooting the
victims. In effect, his contention is that, being a regular agent of the
Criminal Investigation and Detection Group (CIDG) of the Philippine
National Police (PNP), he was justified in maintaining public order, as
well as in protecting and securing life and property.

Although he is correct in arguing that he had the legal obligation to

maintain peace and order, he was not justified in shooting the victims.
Article 11 of the Revised Penal Code (RPC) provides that a person who
acts in the fulfillment of a duty or in the lawful exercise of a right or office
does not incur any criminal liability. Two requisites must concur before
this defense can prosper: 1) the accused must have acted in the
performance of a duty or in the lawful exercise of a right or office; and 2)
the injury caused or the offense committed should have been the
necessary consequence of such lawful exercise.28

These requisites are absent in this case. Appellant was not performing
his duties at the time of the shooting, because the men he shot had not
been indiscriminately firing guns in his presence, as he alleges. Further,
as found by the RTC, "nothing was mentioned in [his] direct testimony
that he was there to effect an arrest."29 Said the trial court:

"While he might have heard of gunfire, since there is no proof to the

effect that Catbagan had personal knowledge that it was Suico who had
been firing the Armalite, under no circumstances may it be said that the
accused was justifiably there to perform the duty of making the arrest in
accordance with existing laws and rules."30

At most, appellant was in the house of the Lapidantes to determine who

had fired the gunshots that were heard by the neighborhood. But the
fatal injuries that he inflicted on the victims were not a necessary
consequence of the performance of his duty as a police officer.

Indeed, his "presence at the scene of the incident [was] all in the
legitimate performance and fulfillment of a sworn duty."31 He was duty-
bound to find out who had fired the gun that day and to maintain peace
and order in the neighborhood. But his act of shooting of the victims
cannot be justified. His presence at the scene of the incident should be
distinguished from his act of shooting them.

Appellant cites People v. Cabrera32 to support his argument that he was

performing his duty and was thus justified in shooting the victims. There
is an important distinction between the present case and Cabrera. In the
latter, the disturbance had been created by the victim in the presence of
the accused, who therefore had the duty to immediately intervene and
subdue the former, who was causing danger. In the present case,
appellant had no personal knowledge of who had fired the gunshots.
Thus, his duty at the time was simply to determine who was the subject
of the complaints of the residents of the village. It was never shown,
though, that the shooting was in furtherance of or was a necessary
consequence of his performance of such duty.

To be sure, the right to kill an offender is not absolute, and may be used
only as a last resort, and under circumstances indicating that the
offender cannot otherwise be taken without bloodshed. The law does not
clothe police officers with authority to arbitrarily judge the necessity to
kill. It may be true that police officers sometimes find themselves in a
dilemma when pressured by a situation where an immediate and
decisive, but legal, action is needed. However, it must be stressed that
the judgment and discretion of police officers in the performance of their
duties must be exercised neither capriciously nor oppressively, but
within reasonable limits. In the absence of a clear and legal provision to
the contrary, they must act in conformity with the dictates of a sound
discretion, and within the spirit and purpose of the law.33

Second Issue:

Self-Defense

Appellant also invokes the principle of standing one’s ground when in

the right. Allegedly, since he had the right to be where he was, "the law
does not require him to step aside when his assailant is rapidly
advancing upon him with a deadly weapon."34 We clarify. Article 11 of
the RPC provides:

"ART. 11. Justifying circumstances. – The following do not incur any

criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur:

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or

repel it;

Third. Lack of sufficient provocation on the part of the person defending

himself."

In self-defense, proof by clear and convincing evidence is incumbent

upon the accused.35 Appellant cannot rely on the weakness of the
evidence for the prosecution, which can hardly be disbelieved after he
himself admitted that he had shot the victims.36 A judicial confession
constitutes evidence of a high order, on the presumption that no sane
person would deliberately confess to the commission of an act unless
moved by the desire to reveal the truth.37

As the RTC correctly did, we should look at the circumstances of the

shooting in the case of each victim.

Circumstances Surrounding the Death of Suico

The first requisite of self-defense is unlawful aggression by the person

who is eventually injured or killed by the accused.

This Court is convinced that the RTC’s finding of unlawful aggression on

the part of Suico is supported by the records, and we see no reason to
disturb those findings. Ruled the lower court:

"Under the given situation wherein the Sergeant cocking the pistol was
one who was trained, and skilled in the handling of guns, plus the fact
that he was drunk, the Court cannot blame accused Catbagan to believe
and fear that Suico would attack him in that mock introduction."38

The prosecution presented, in fact, conflicting accounts of how Suico

had been shot. The shooting allegedly happened after he had offered a
handshake to appellant,39 according to Rosita Lapidante, the wife of
another victim. On the other hand, Charlie Lacaden, the brother of still
another victim, gave testimony that conflicted with hers. Suico was
allegedly shot by appellant when the former turned his back to the latter.

On the other hand, appellant40 and Defense Witness Zosimo Pavabier41

positively and consistently testified that it was Suico who had first drawn
and aimed his gun at appellant. This assertion was confirmed by the
physical evidence that the victim’s gun had a live bullet sandwiched
between its breechblock and chamber.42 This fact proves that the gun
was cocked and fired, but that the bullet was jammed in the process.

The prosecution tried to explain this occurrence by inconsistent and

incongruous statements. According to the testimony of Rosita, Charlie
took the gun from Suico’s belly then aimed it at appellant, but the gun
did not fire because it was defective.43 According to the testimony of
Charlie, on the other hand, he took the gun because he was afraid that
appellant would come back, but that he later threw it towards the rear
portion of the house.44 Thus, the RTC concluded:

"As regards the proof that Suico’s gun misfired due to vital defects in its
mechanism, the Court suspects that the firearm was tampered with to
create the scenario that the PSG man was without fault. In fact, Mrs.
Lapidante and Charles Lacaden’s testimonies regarding what was done
to the gun after the incident are in conflict with each other."45 (Italics
supplied)

Unlawful aggression is an actual physical assault, or at least a threat to

inflict real imminent injury, upon a person.46 In case of threat, it must be
offensive and strong, positively showing the wrongful intent to cause
injury -- as in this case. Thus, Suico’s act of aiming a cocked gun at
appellant is sufficient unlawful aggression.

The second element of self-defense -- reasonable necessity of the

means employed to prevent or repel it -- requires the following: 1) a
necessity of the course of action taken by the person making the
defense and 2) a necessity of the means used. Both the course of action
taken and the means used must be reasonable.47

Appellant argues that he was justified in wounding Suico, because the

latter was armed with a deadlier weapon and was still persistently
aggressive after being shot the first time. The former maintains that
"[t]he fact that [he] struck one blow more than [what] was absolutely
[necessary] to save his own life, or that he failed to hold his hand so as
to avoid inflicting a fatal wound where a less severe stroke might have
served the purpose, would not [negate] self-defense, because [he], in
the heat of an encounter at close quarters, was not in a position to
reflect coolly or to wait after each blow to determine the effects
thereof."48

The means employed by the person invoking self-defense is reasonable

if equivalent to the means of attack used by the original aggressor.49
Whether or not the means of self-defense is reasonable depends upon
the nature or quality of the weapon, the physical condition, the character,
the size and other circumstances of the aggressor; as well as those of
the person who invokes self-defense; and also the place and the
occasion of the assault.50

The RTC made a definitive finding on the unreasonableness of the

means employed by appellant as follows:

"However, what followed, as testified by witnesses was that Catbagan

continued firing even while Suico was pleading ‘Huwag pare!’ with
outstretched hand and open palm of his right hand. While the accused
asserted that he had to fire his gun and hit Suico with more shots to
totally disable him, the same cannot be believed by the Court, if we take
stock of Dr. Aguda’s testimony that with the injured arm and that on the
chest being inflicted with the first ‘double tap’ shots; the victim would
have had much difficulty to retaliate. In fact, Catbagan himself stated on
clarification questions that the .45 caliber gun of the victim fell already so
that the threat of continued aggression was no longer present.

xxx xxx xxx

"On this point, the Court entertains serious doubts on the right of the
accused to continue firing at Suico after the latter was dispossessed of
his gun due to the injuries received from the gunfire of the assailant.
Additionally, we cannot accept as credible Catbagan’s statement that he
had to fire again at Suico inasmuch as the latter had stooped acting to
pick up his own pistol from the pavement. If ever the victim was
positioned that way, it was more of the impact of the bullets that hit him.
The logical explanation can be derived from the presence of the entry
wound in the inside of Suico’s right palm."51

These findings are well-supported by the evidence on record. Clearly,

the nature and the number of gunshot wounds -- debilitating, fatal and
multiple -- inflicted by appellant on the deceased shows that the means
employed by the former was not reasonable and commensurate to the
unlawful aggression of the latter. The unreasonableness becomes even
more apparent from the fact, duly admitted by appellant himself, that
Suico had obviously been inebriated at the time of the aggression. It
would have thus been easier for the former to have subdued the victim
without resorting to excessive means.

Finally, as to the element of lack of sufficient provocation on the part of

the person resorting to self-defense, appellant has sufficiently
established that he went to the house of the Lapidantes to find out who
had fired the gunshots earlier that day. There was therefore absolutely
no provocation from him, either by unjust conduct or by incitement, that
would justify Suico’s acts of cocking and aiming a gun at him.

Not having proven all the elements of self-defense, appellant cannot use
it to justify sufficiently his fatal shooting of Suico. Having proven a
majority of the elements, however, the former may still be credited with a
mitigating circumstance in accordance with Article 1352 of the RPC.
Circumstances Surrounding the Shooting of Lapidante

With respect to Lapidante, he allegedly rushed towards his house to get

hold of the "mahaba," so appellant had no other recourse but to shoot
him. The purpose of the victim in rushing towards his house was
supposedly to recover the advantage he had previously enjoyed. Hence,
it is argued that unlawful aggression was present.

We disagree with appellant’s averments. Unlawful aggression

presupposes an actual, sudden and unexpected attack or imminent
danger thereof. Such aggression refers to an attack that has actually
broken out or materialized or is at the very least clearly imminent; it
cannot consist merely of any oral threat or intimidating stance or
posture. 53

In this case, the RTC was categorical in ruling that the perceived danger
was more in the mind of appellant than in reality. The circumstances did
not point to any actual or imminent peril to his life, limb or right. On the
part of Lapidante, the act of running towards his house can hardly be
characterized as unlawful aggression. It could not have imperiled
appellant’s life.

In a previous case,54 this Court ruled that "a threat even if made with a
weapon or the belief that a person [is] about to be attacked, is not
sufficient, but that it is necessary that the intent be ostensibly revealed
by an act of aggression or by some external acts showing the
commencement of actual and material unlawful aggression."55 We
agree with the RTC’s ratiocination, which we quote:

"With respect to the incident involving the victim Lapidante, it is not

disputed that he was unarmed as he was inside his own premises within
the fenced area in front of his house. What acts of aggression against
Catbagan which he did are not apparent to us. To this Court, the belief
on the part of Catbagan that the victim was about to retrieve a rifle from
the doorside of the house, existed only in his imagination.

"Aside from its intrinsic ambiguity, the claims of the defense witnesses
about the alleged utterance of Lapidante about ‘Ang mahaba!’ an[g]
mahaba!’ do not sit well with this Court. Indeed, we are not convinced
that he could have uttered that statement since the evidence points to
the fact that he and his friends had just arrived from another phase of
the subdivision upon having delivered thereat, the Armalite of Suico. On
the contrary, Lapidante appeared to have been gripped by fear and was
obviously trying to escape from harm. Indeed, there was no moment for
Catbagan to validly state that his own life [was] in imminent danger from
Lapidante."56

Neither do we accept the contention that unlawful aggression by

Lapidante was shown by his act of rushing towards his house for the
purpose of taking a more advantageous position. Referred to here is the
rule that if it is clear that the purpose of the aggressor in retreating -- or,
as in this case, Lapidante’s rushing towards his house -- is to take a
more advantageous position to ensure the success of the attack already
begun, the unlawful aggression is considered still continuing; and the
one resorting to self-defense has a right to pursue and disable the
former.57

Obviously, this rule does not apply to Lapidante, because 1) there was
no clear purpose in his act of retreating to take a more advantageous
position; and 2) since he never attacked appellant in the first place, the
former could not have begun any unlawful aggression and, hence, would
not have had any reason to take a more advantageous position. How
could there have been a continuation of something that had never been
started? If any aggression was begun in this case, it was by Suico, not
by Lapidante.

Hence, no unlawful aggression by Lapidante was shown. Because the

presence thereof is a statutory and doctrinal conditio sine qua non of the
justifying circumstance of self-defense58 -- complete or incomplete -- we
need not examine the presence of the other requisites.

Circumstances Surrounding the Shooting of Lacaden

Appellant asserts that Lacaden attacked him with an ice pick from the
side. Allegedly, this act clearly showed unlawful aggression on the
latter’s part. All the pieces of evidence on record, however, point to the
absence thereof.

Most crucial is the position of the gunshot wound. As testified to by the

doctor who had treated the victim, its point of entry was on the right side
of the back, just below the scapula.59 This incontestable fact belies the
claim of appellant that he was attacked by Lacaden with an ice pick.
Such attack would have required the latter to face him; and, logically, a
gunshot entry wound would have been in the front -- not in the back --
portion of Lacaden’s body. The wound in the back of the victim clearly
shows that he was shot while his back was turned to appellant. Hence,
there was no unlawful aggression on the part of the former.

Neither was any ice pick presented in the proceedings before the RTC.
Appellant maintains that his testimony, coupled with that of Pavabier, is
sufficient to establish the existence of the weapon. But the prosecution
witnesses, including the victim himself, testified otherwise -- that there
was no unlawful aggression during the incident, much less with the use
of an ice pick. The RTC held thus:

"In the case of Jun Lacaden, he was shot in the back which could only
corroborate the evidence to the effect that he was also in the act of
fleeing from the fury of gunfire from Catbagan. As to the allegation of the
latter that Jun Lacaden had an icepick, that claim is rather nebulous.
Firstly, as veteran criminal investigator, he should have taken, kept and
presented that said instrument to augment his legal excuse. Secondly, if
really there was one, it is rather surprising why he did not demand Jun
Lacaden for its surrender initially as he passed thru the pedestrian steel
door and subsequently while the latter had positioned himself near the
owner-type jeep.

"More importantly, granting that Jun Lacaden had an icepick, and/or had
any design to launch an attack against Catbagan, the former was just
too far a distance away to do real harm to the accused. From 6-7
meters, as clarified from the accused himself, it is ridiculous for us to
believe that Jun Lacaden could stab him. More so because the accused
himself testified that the two arms of Jun Lacaden were raised upward
which is not to mention that Catbagan had already demonstrated his
proficiency and accuracy in the use of his .9 mm automatic pistol. Thus,
there was, like that of Lapidante, no occasion to find as existing, the
element of unlawful aggression."60

Appellant has presented no sufficient reason to overturn these

conclusive findings of the trial court. Aside from being completely in
accord with logic and human experience, they are too solid to be
debunked by him.

Third Issue:

Voluntary Surrender

Finally, appellant argues that even on the assumption that his guilt was
proven beyond reasonable doubt, he is still entitled to a mitigating
circumstance. According to him, he voluntarily surrendered to the
authorities after the occurrence of the incident, a fact not only
uncontroverted but even admitted by the prosecution.

For voluntary surrender to mitigate criminal liability, the following

elements must concur: 1) the offender has not been actually arrested; 2)
the offender surrendered himself to a person in authority; and 3) the
surrender was voluntary.61 It is sufficient that that act be spontaneous
and clearly indicative of the intent of the accused to surrender
unconditionally, because there is either an acknowledgement of guilt or
a desire to save the authorities the trouble and the expense that would
necessarily be incurred in searching for and capturing the culprit.62

It was established that on the night after the shooting incident, appellant
called up his immediate supervisor, Atty. Virgilio Pablico, to tell him
about the incident that had occurred that afternoon and to convey the
former’s intention to surrender.63 The following day, appellant
surrendered himself and his firearm to Police Supt. Edgardo Acuña, the
chief of the Assistant Directorate for Intelligence.64 This surrender is
evidenced by a Progress Report 65 signed by Police Chief
Superintendent Efren Quimpo Fernandez.

At the time of his surrender, appellant had not actually been arrested. He
surrendered himself and his firearm to a person in authority, the chief of
the Assistant Directorate for Intelligence of the Philippine National
Police. Finally, the surrender was voluntary and spontaneous; it thus
showed an intent to surrender unconditionally to the authorities. In fact,
in the aforementioned Progress Report, appellant had given the same
narration of events he later gave in court; moreover, he owned
responsibility for the shooting. Thus, we credit him with the mitigating
circumstance of voluntary surrender.

Final Issue:

Crimes and Penalties

Appellant was convicted of homicide, murder, and frustrated murder for

the shooting of Suico, Lapidante and Lacaden, respectively. In
determining the crimes committed and in imposing the proper penalties,
it is necessary to look into the qualifying circumstances alleged in the
three Informations. Treachery and evident premeditation were both
alleged; thus, there is a need to ascertain their presence or absence in
the commission of the acts, in order to determine the crimes committed
by appellant.
To establish treachery, the following must be proven: 1) the employment
of such means of execution as would give the person attacked no
opportunity for self-defense or retaliation; and 2) the deliberate and
conscious adoption of the means of execution.66 It is also the running
case law that where treachery is alleged, the manner of attack must be
proven.67 Such attack must be sudden and unexpected and without the
slightest provocation on the part of the victim, who is thus deprived of
any real chance for self-defense, thereby ensuring the commission of
the crime without risk to the aggressor.68

With respect to the shooting of Suico, there was no treachery. The

shooting was perpetrated in a frontal encounter as shown by the location
of his wounds. Appellant did not make any deliberate, surprise attack
against him or consciously adopt a treacherous mode thereof. As
established, he shot the victim after the latter had aimed, cocked and
fired a gun at him.

As to the shooting of Lapidante, the RTC qualified the crime to murder

because of the presence of treachery. According to the trial court, the
shooting was unexpected, he was unarmed, and his back was turned
towards appellant when the incident occurred. Treachery was also
appreciated in the shooting and wounding of Lacaden, since he had
been shot at the back. Further, even if he had posed no imminent
danger to appellant, the former was nevertheless shot with a .9 mm
automatic pistol -- a lethal weapon. For this act, the latter was convicted
of frustrated murder.

The mere fact that the attack against Lapidante and Lacaden was
perpetrated when their backs were turned did not by itself constitute
treachery or alevosia.69 Whether the mode of attack was consciously
adopted, and whether there was risk to the offender, must be taken into
account.70 Treachery cannot be considered when there is no evidence
that the accused had resolved to commit the crime prior to the moment
of the killing; or that the death of the victim was the result of
premeditation, calculation or reflection.71

In this case, it is evident that the decision to shoot Lapidante and

Lacaden was suddenly arrived at after the confrontation with Suico had
already occurred. Even if the positions of the victims were vulnerable,
there was still no treachery, as appellant did not deliberately adopt such
mode of attack. Its presence was negated by the fact that the shootings
had sprung from the unexpected turn of events. The treacherous
character of the means employed does not depend upon its result, but
upon the means itself -- upon appellant’s purpose in employing it.72

Treachery cannot be appreciated where, as in this case, there is nothing

in the records that shows that appellant pondered upon the mode or
method of attack to ensure the wounding and the killing of the victims; or
to remove or diminish any risk to himself that might arise from the
defense that they might make.73 His decision to shoot them was clearly
sudden. In the absence of treachery, the killing of Lapidante and the
wounding of Lacaden cannot be qualified to murder and frustrated
murder, respectively.

The allegation of evident premeditation was correctly rejected by the

lower court. For this aggravating circumstance to be appreciated, the
following must be proven: 1) the time when the accused decided to
commit the crime; 2) an overt act manifestly indicating that the accused
clung to such determination; and, 3) between the decision and the
execution, a sufficient lapse of time that allowed time to reflect upon the
consequences of the act contemplated.74 None of these elements has
been established in the case at bar.

Undeniably, the shooting of the victims was done without any prior plan
to kill or attack them. As previously stated, appellant began shooting at
them after a cocked gun had been aimed and fired at him. This fact
negates any finding that he had already previously conceived the
shooting, and that he then manifestly clung to his determination to
commit the crime after a sufficient lapse of time.

Having rejected both treachery and evident premeditation in the killing of

Suico and Lapidante, we hold appellant guilty only of homicide in both
cases. But for the shooting of Lacaden, a careful review must be made
of the crime that was actually committed. The RTC charged him with
frustrated murder and found him guilty thereof; but, as ruled above, no
qualifying circumstance was proven. Thus, his crime can only be
frustrated homicide, in which evidence of intent to kill is essential,
however.75 It bears stressing that such intent determines whether the
infliction of injuries should be punished as attempted or frustrated
murder, homicide or parricide; or as consummated physical injuries.76

Homicidal intent must be evidenced by acts that, at the time of their

execution, are unmistakably calculated to produce the death of the
victim by adequate means.77

The principal and essential element of attempted or frustrated homicide

or murder is the assailant’s intent to take the life of the person
attacked.78 Such intent must be proved clearly and convincingly, so as
to exclude reasonable doubt thereof.79

Although the injury sustained by Lacaden was inflicted by appellant, the

facts do not support a finding that the latter had been impelled by an
intent to injure to the point of killing the former. The intent to kill is absent
in this case. It was found that the shooting was sudden and unexpected,
having been brought about by a confrontation between appellant and
Suico and the commotion that ensued. The absence of such intent was,
in fact, even more apparent in the testimony of appellant, who said
therein that he did not even look at the victim anymore. The former’s
attention was concentrated on the latter, who was shouting, "Ang
mahaba, ang mahaba!"80

The intent to kill, an essential element of the offense of frustrated or

attempted homicide, must be proved by clear and convincing evidence
and with the same degree of certainty as that required of the other
elements of the crime.81 The inference that such intent existed should
not be drawn in the absence of circumstances sufficient to prove it
beyond reasonable doubt. If it was absent but wounds were inflicted, the
crime is not frustrated murder, but only physical injuries.82 In this case,
the expert opinion of the doctor who treated Lacaden was that it would
take the latter thirty days to heal and recover from the lone gunshot
wound and to resume his normal work.83 Thus, a finding of less serious
physical injuries84 is proper.

Although the charge in the instant case is frustrated murder, a finding of

guilt for the lesser offense of less serious physical injuries may be made,
considering that the essential ingredients of this lesser offense are
necessarily included in or form part of those constituting the graver
one.85 In the same manner, a conviction may be for slight or serious
physical injuries in a prosecution for homicide or murder, inasmuch as
the infliction of the former, when carried out to the utmost degree, could
lead to the latter offense. Such conviction may be made, without intent to
kill -- an essential element of the crime of homicide or murder.86

To summarize, in Criminal Case No. 1082-M-98, appellant is found guilty

of homicide, for which the penalty prescribed is reclusion temporal.87
Since he proved a majority of the elements of self-defense -- unlawful
aggression and lack of sufficient provocation -- the penalty prescribed by
law may be lowered by two degrees88 to prision correccional.
Considering further the presence of the generic mitigating circumstance
of voluntary surrender without any aggravating circumstance, the penalty
shall be imposed in its minimum period.89 The Indeterminate Sentence
Law is applicable in this case. Hence appellant should be sentenced to
an indeterminate sentence, the maximum term of which shall be that
which may properly be imposed under the Revised Penal Code; and the
minimum of which shall be within the range of the penalty next lower
than that prescribed by the Code -- in this case, arresto mayor.

In Criminal Case No. 1083-M-98, appellant is found guilty of homicide,

for which the penalty prescribed by law is reclusion temporal.90 Again,
considering the presence of the generic mitigating circumstance of
voluntary surrender without any aggravating circumstance, the penalty
shall be imposed in its minimum period.91 The Indeterminate Sentence
Law is also applicable to this case. Hence, appellant should be
sentenced to an indeterminate sentence, the maximum term of which
shall be that which may properly be imposed under the Revised Penal
Code; and the minimum of which shall be within the range of the penalty
next lower than that prescribed by the Code -- in this case, prision
mayor.

Finally, as to Criminal Case No. 1099-M-98, appellant is found guilty of

less serious physical injuries, for which the penalty prescribed by law is
arresto mayor. Again, considering the presence of the generic mitigating
circumstance of voluntary surrender without any aggravating
circumstance, the penalty shall be imposed in its minimum period.

Coming now to pecuniary liabilities, the heirs of the victims Suico and
Lapidante in Criminal Case Nos. 1082-M-98 and 1083-M-98,
respectively, are entitled to a fixed sum representing civil indemnity for
death. Death indemnity is currently fixed at ₱50,000.92 This kind of civil
indemnity is separate and distinct from other forms of indemnity for
damages and is automatically awarded without need of further proof
other than the fact of death and the responsibility of the accused
therefor.

Proof of moral damages was presented through the testimony of

Lapidante’s wife. The RTC’s award of such damages herein is
excessive, however, considering that it is not meant to enrich an injured
party. 93 Hence, in Criminal Case No. 1083-M-98, the amount thereof
should be reduced to ₱50,000. In the other two cases, there being no
proof of moral damages, the award therefor is deleted. Moral damages
cannot be granted in the absence of proof.94

It is also proper to award compensation to the heirs of the victims for

loss of earning capacity, pursuant to Article 2206 of the Civil Code.95
The documents presented, coupled with the testimonies of Elsie Suico
and Rosita Lapidante, are sufficient bases for the award.

At the time of his death, Suico, forty-four (44) years old,96 was receiving
a monthly take-home pay of ₱942.70,97 as proven and admitted. To
compute his net earnings, we multiply this amount by 12 to get his
annual income; then deduct the reasonable and necessary living
expenses which, in the absence of contrary evidence, is pegged at 50
percent of the earnings. Applying the formula "Net earning capacity =
[2/3 x (80 – age at time of death) x (gross annual income – reasonable
and necessary living expenses)],98 we arrive at a loss of earning
capacity of ₱135,748.80.

Applying the same formula to Lapidante who was thirty-five (35) years
old99 at the time of his death, with a monthly take-home pay of
₱10,004.24100 and an additional income of ₱1,000.00 for slaughtering
pigs,101 we arrive at a loss of earning capacity of ₱1,980,763.20. His
heirs are also entitled to actual damages in the amount of ₱13,850 for
hospital and funeral expenses. These expenses are supported by
receipts.102 The receipt103 for the amount of ₱6,000 -- which also
mentions a remaining payable balance of ₱6,500 -- was not properly
identified and characterized; thus, we should exclude it from the award
of actual damages.

Finally, with respect to the civil indemnities for Lacaden, the award for
actual damages -- for hospitalization and medicines -- should be
₱4,589.86, as only this amount was properly covered by receipts.104
The amount of ₱1,831, allegedly for hospital services, was included in a
list presented by the victim, but was not properly supported by any
receipt or record; thus, we cannot grant such amount.

WHEREFORE, the appeal is partly GRANTED and the assailed

Decision MODIFIED. In Criminal Case No. 1082-M-98, Appellant
Carmelo Catbagan is found guilty beyond reasonable doubt of homicide
and is SENTENCED to a prison term of one (1) month and one (1) day
arresto mayor as minimum; to one (1) year and six (6) months of prision
correccional as maximum. In Criminal Case No. 1083-M-98, he is found
guilty beyond reasonable doubt of homicide and SENTENCED to a
prison term of six (6) years and one (1) day of prision mayor as
minimum; to twelve (12) years and one (1) day of reclusion temporal as
maximum. In Criminal Case No. 1099-M-98, he is found guilty of less
serious physical injuries and SENTENCED to a prison term of one (1)
month and one (1) day of arresto mayor.

Appellant is also ORDERED to pay the following amounts: 1) to the legal

heirs of Suico, ₱50,000 as indemnity ex delicto and ₱135,748.80 for loss
of earning capacity; 2) to the legal heirs of Lapidante, ₱13,850 for actual
damages, ₱50,000 as indemnity ex delicto, ₱50,000 as moral damages,
and ₱1,980,763.20 for loss of earning capacity; and 3) to Lacaden,
₱4,589.86 for actual damages. Costs against appellant.

SO ORDERED