SYLLABI/SYNOPSIS

FIRST DIVISION

[G.R. No. 127815. June 9, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. STEPHEN SANTILLANA, accused-appellant.

D E C I S I O N

MELO, J.:

Accused-appellant Stephen Santillana y Sarad was charged with murder in Criminal Case No. 94-0906 of the Regional Trial Court of Parañaque City, Branch 258, under the following Information:

That on or about the 30th day of October 1994 in the Municipality of Parañaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and stab one Wilfredo Limpiado, hitting the latter on his abdomen which instantaneously caused his death.

CONTRARY TO LAW.

(p. 10, Rollo.)

At his arraignment on December 1, 1994, accused-appellant entered a plea of not guilty.

The prosecution’s version of the generative facts, as constituted by the testimony of its witnesses, namely, SPO1 Moises Bernal, and SPO2 Renato Lumapat, police officers who investigated the incident; Gary Miano, an eyewitness; Teresita Limpiado, wife of the deceased; and Dr. Antonio Vertido, Medico-Legal officer (also referred to in the record as Dr. Antonio Vestido), is abstracted in the Appellee’s Brief as follows:

On October 30, 1994 at around 1:30 o’ clock in the afternoon, appellant Stephen Santillana and Mario Bacamante were at their rented house at Sitio Pagkakaisa, Brgy. San Martin de Porres, Parañaque, Metro Manila (tsn, April 18, 1996, p. 2). Appellant and Mario were at that time fixing a sink at the second floor of their rented house (ibid). Later, appellant went to the ground floor to install a PVC pipe while Mario stayed at the second floor (ibid, pp. 2 & 6). While appellant was installing the PVC pipe, his neighbor, Teresita Limpiado confronted him and told him to stop fixing their (appellant’s) sink because the Limpiados will elevate their house and the sink being fixed by appellant will necessarily obstruct that of the Limpiados (ibid). The house of the Limpiados is only three (3) meters in front of appellant [sic] rented house (ibid). In response, appellant told Teresita that they (appellant and Mario) cannot stop the work because they had asked permission for it from the owner of the house (ibid, p. 3). Thereafter, appellant went up to the second floor of his house where he took a knife and some wires. After taking the knife and wires, appellant went back to the ground floor (tsn, April 18, 1996, p. 5).

Meanwhile, Wilfredo Limpiado, the husband of Teresita Limpiado, emerged from the kitchen of the Limpiado house and inquired from her what was going on (tsn, February 16, 1995, pp. 43 to 44). Thereafter, Wilfredo asked Mario Bacamante, who at that time was still fixing the sink at the second floor, to stop working thereon (tsn, April 20, 1995, p. 14). After Wilfredo had requested Mario for three times to stop, appellant immediately stabbed him with a knife (ibid). After that, appellant went back to his house (tsn, April 18, 1996, p. 8).

Wilfredo Limpiado died from the stab wound inflicted by appellant.

The post mortem examination on the body of Wilredo Limpiado was conducted by Dr. Antonio Vestido, Medico-Legal Officer of the National Bureau of Investigation, Manila (tsn, May 16, 1995, pp. 1 to 6). He testified that the victim died due to hemorrhage secondary to stab wound in the abdomen (ibid, p. 10).

Teresita Limpiado, testified that she spent P9,397.40 for Wilfredo’s hospital bills (Exhibits C to C-3, tsn, April 20, 1995, p. 20) and P23,400.00 as expenses for his funeral and tomb (Exhibits E, tsn, ibid, pp. 24 to 28).

SPO1 Moises Bernal of Block 7, Bicutan Interchange Expressway Police Station, testified that on October 30, 1994 at around 2:30 o’clock in the afternoon, a certain Rodrigo Doquino arrived at the police station and reported a stabbing incident that took place in Sitio Pag-asa, San Martin de Porres, Parañaque, Metro Manila (tsn, February 16, 1995, pp. 1 to 6). After receiving the report, SPO1 Bernal and Police Aide Joaquin Cruz proceeded to Sitio Pag-asa, San Martin de Porres, Parañaque (ibid).

Upon arriving at the scene of the incident, SPO1 Bernal was met by someone from the place, who informed Bernal that the suspect in the stabbing incident was inside one of the houses in the place. Thereafter, SPO1 Bernal was approached by a man who introduced himself as appellant (ibid, p. 8). Appellant gave himself up to Bernal and told him that he (appellant) threw away the knife he used in stabbing the victim (ibid, p. 9). The knife was later found by SPO1 Bernal at a nearby container (ibid, p. 10). Thereafter, SPO1 Bernal turned appellant and the knife over to SPO1 Renato Lumapat for investigation (ibid, p. 29).

SPO1 Renato Lumapat of the Parañaque Police Station testified that he conducted the investigation on the stabbing incident on October 30, 1994 where the victim was a certain Wilfredo Limpiado (tsn, March 16, 1995, p. 9). He testified that appellant was turned over to him by SPO1 Bernal together with the knife appellant used in stabbing the victim. Lumapat identified in court the appellant’s knife where he (Lumapat) put his initial, RGL (ibid, pp. 11 to 12).

(pp. 4-7, Appellee’s Brief.)

Dr. Antonio Vertido, the Medico-Legal Officer who conducted the autopsy on the victim’s body, testified that there was a puncture in the liver caused by a knife, and that the victim died due to hemorrhage secondary to stab wound in the abdomen from the anterior; that the thrust was directed backward and downward; and that the position must have been downward and lateral, cutting the 7th rib, penetrating the diaphragm, and entering the right lobe of the liver with an approximate depth of 13 cms.; and that the relative positions of the victim and assailant was that they were face to face with each other.

The version of the defense is based on the testimony of Mario Bacamonte (also referred to in the record as Mario Bacamante), housemate of accused-appellant; Marilou Santillana, wife of accused-appellant; Dr. Antonio Vertido, as a recalled witness; and accused-appellant himself.

Accused-appellant narrates in his brief that on October 28, 1994, he and his family moved to the second floor of a house located at Sitio Pag-asa, East Service Road, Barangay San Martin de Porres, Parañaque, Metro Manila. Three days later, or on the date of the fatal incident, accused-appellant and Mario Bacamonte agreed to install a waterspout and a sink since accused-appellant’s wife was having difficulty with the water supply and disposal in the area. At around 2 o’clock in the afternoon that same day, while accused-appellant and Mario Bacamonte were installing the waterspout, shouts came from the house of accused-appellant’s neighbor that went, “Huwag itutuloy ang pagkabit niyan at tataasan pa namin ang aming bahay.” Said neighbor was Teresita Limpiado, who later confronted accused-appellant, raised her voice, and shouted invectives at him. Consequently, accused-appellant confronted Teresita, explained to her the necessity for the installation of the waterspout; that the same was with the permission of his landlord; and that she should just complain to the landlord. Teresita, however, continued to raise her voice and uttered insults at accused-appellant. The latter dismissed the conversation as a minor incident and went up to his residence in search for tools to be used in the installation of the waterspout. In the meantime, the victim, Wilfredo Limpiado, joined his wife. Accused-appellant was not able to find the necessary tools and equipment, hence, he just took hold of a knife with which to cut wires to be used in securing the waterspout. Thereafter, as he descended and reached his doorway, Wilfredo suddenly rushed toward him for no apparent reason, which made him retreat and say, “Teka lang, pare” but Wilfredo continued to lunge toward him. Thinking that Wilfredo was armed with a weapon, and not able to retreat any further, accused-appellant had no choice but to defend himself, leading thus to the accidental stabbing of the victim, who was later rushed to the hospital by his wife, Teresita. When accused-appellant realized that Wilfredo had been stabbed, he immediately asked Mario Bacamonte to call the police and he waited upstairs for their arrival. When the police arrived, he voluntarily surrendered himself to SPO1 Moises Bernal.

The trial court did not accord credence to the version of the defense. It held that assuming arguendo that the victim, after succeeding in extricating himself from his wife, did lunge toward accused-appellant, it could be that he only wanted to confront accused-appellant about the conversation he had with the victim’s wife. The trial court continued that, be that as it may, the reasonable necessity of the means employed by accused-appellant to prevent or repel the alleged unlawful aggression on the victim’s part, was much too much. He should have just sought refuge in his house, ran away, or met the victim in hand-to-hand combat. Instead, he thrust the knife into the victim’s abdomen.

In lieu of the defense’s version, the trial court accorded credence to the testimony of Teresita Limpiado, the victim’s spouse, and that of Gary Miano, the fifteen-year old eyewitness whom the trial court found to have no motive in testifying against accused-appellant, and to have given his testimony in a categorical, straightforward, spontaneous, and frank manner. In comparison, the trial court could not help observing that while accused-appellant admitted having stabbed the victim unintentionally in self-defense, he showed no remorse or repentance, and was even smiling while answering questions concerning the incident. Hence, the trial court concluded that his intention was really to kill the deceased.

Finally, the trial court appreciated against accused-appellant the qualifying/aggravating circumstance of treachery, which was duly alleged in the Information, ratiocinating that although the victim was stabbed frontally, the attack was still sudden and unexpected and the victim was not armed. Further, the victim was looking up and completely unaware and defenseless when the stabbing was done.

On appeal, accused-appellant assigns three errors, to wit:

THE LOWER COURT GRAVELY ERRED IN HOLDING THAT THE ACT COMPLAINED OF WAS QUALIFIED BY INTENT TO KILL AND TREACHERY.

THE LOWER COURT GRAVELY ERRED IN NOT APPRECIATING THE MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND PRAETER INTENTIONEM.

THE LOWER COURT GRAVELY ERRED IN NOT APPRECIATING THE JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE IN FAVOR OF THE ACCUSED OR AT THE VERY LEAST FAILED TO APPRECIATE THE INCOMPLETE SELF-DEFENSE EMPLOYED BY THE ACCUSED.

(p. 8, Appellant’s Brief.)

which he discussed, raising in the process, the following points:

1. Accused-appellant did not know the Limpiado spouses. He was new in the aforestated location and knew only his co-boarder and housemate, Mario Bacamonte. He could not have intended to kill somebody he encountered for the first time. Moreover, during the fatal incident, he was engaged in the performance of a lawful act, which was the installation of a PVC pipe in order to help and assist his wife in her washing chores. Hence, the prosecution failed to show the design, resolve, or determination of accused-appellant in his intent to kill.

Treachery was not proved. Considering that the prosecution failed to establish evident premeditation, there was a total absence of the second element of treachery which requires that the means of execution was deliberately or consciously adopted.

Gary Miano’s testimony is unbelievable and rehearsed and should be given little weight and credibility. His presence at the time of the stabbing is questionable because, as testified to by Mario Bacamonte and Teresita Limpiado, only her daughter Abigail, one Mario Casungkad, and Rogelio Gonzales, were present. These persons, however, were not called to the witness stand. Moreover, Gary Miano testified that accused-appellant used his right hand when in truth and in fact, he is left-handed.

Teresita Limpiado could not testify as to the element of treachery since her view was obstructed by her husband. And her assertion that the victim was looking up was refuted by Bacamonte’s testimony that blood was seen at accused-appellant’s doorstep which meant that the victim did rush toward the doorstep of accused-appellant.

Dr. Vertido testified that the direction of the wound was “backward, downward and lateral.” This refutes Gary Miano’s testimony that the stabbing was done in a treacherous manner, as accused-appellant pushed the victim with his left hand and immediately stabbed him with his right in a thrusting motion parallel to the ground. Logic dictates that a thrusting motion does not effect a downward direction of the wound.

2. Accused-appellant likewise assigns error on the part of the trial court in not appreciating the mitigating circumstances of voluntary surrender and praeter intentionem. Anent voluntary surrender, accused-appellant asserts that after the accidental stabbing of the victim, he requested his housemate Mario Bacamonte to call the police and thereafter, he peacefully surrendered his person to save the authorities the trouble and expense for his search and capture.

Further, he invokes Paragraph 3, Article 13 of the Revised Penal Code or the "lack of intention to commit so grave a wrong." He argues that he merely exercised his natural instinct of self-preservation and defended himself from his assailant. He maintains that he did not have the intent to kill. Being unintentional and accidental, the stabbing was done without any intent on the part of accused-appellant to commit so grave a wrong.

3. Lastly, accused-appellant invokes the justifying circumstance of self-defense or at the very least, incomplete self-defense. He argues that all the requisites of self-defense were present. First, there was unlawful aggression employed by the victim on his person when the victim attacked him. Then, he had no room to evade the attack as he was backed to a corner where retreat was not possible. He likewise believed that the victim was armed at that moment, and that there was danger to his life and limb. Second, he argues that the means he used to prevent and repel the aggression was reasonable since given the above circumstances or the suddenness of the attack of the victim on the accused-appellant, the danger that he faced was actual. Third, there was no sufficient provocation on the part of accused-appellant since he was merely performing a lawful right when the stabbing happened. Despite angry and harsh words uttered against him by the victim's wife, accused-appellant merely retorted that he had permission for the installation.

Lastly, he states that the "smiles" which the trial court observed when he took the witness stand were due to the fact that he was nervous.

A perusal of the record of the case at bar impels us to affirm the judgment of conviction.

In People vs. Tuason (261 SCRA 711 [1996]), the Court, through Madame Justice Flerida Ruth Romero, deplored murder as “one of the instances when man descends to a level lower than that of a beast, for it is non-instinctive killing, a deliberate destruction of a member of the same species for reasons other than survival.” It even becomes more deplorable when it is characterized as a senseless killing.

As a rule, the prosecution has the onus probandi of establishing the guilt of the accused (People vs. Sayat, 223 SCRA 285 [1993]). However, when the accused pleads self-defense and owns up to the killing, the burden of evidence shifts to him. He must then show by clear and convincing evidence that he indeed acted in self-defense. For that purpose, he must rely on the strength of his own evidence and not on the weakness of the prosecution’s evidence (People vs. Gutua, 254 SCRA 37 [1996]).

The requisites of self-defense are as follows: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it, and (3) lack of sufficient provocation on the part of the person defending himself (People vs. Bernal, 254 SCRA 659 [1996]; People vs. Gregorio, 255 SCRA 380 [1996]).

If we analyze accused-appellant’s version of the incident, we find that: (1) he imputes unlawful aggression on the part of the victim whom he believed held a weapon, when the latter lunged toward him, and accused-appellant had nowhere else to go or to retreat to; (2) he alleges that there was reasonable necessity in the stabbing since the victim’s attack on him was so sudden that he had no choice but to defend himself by employing the first available means; and that there was a necessity therefor considering that the danger he faced was actual; and (3) he maintains that there was lack of sufficient provocation on his part despite the angry and harsh words directed at him by Teresita Limpiado.

The first element is belied by the testimony of two witnesses. The first is Gary Miano who testified that he was in front of the house of Teresita Limpiado (or two meters away from the place of the incident) when he saw the latter conversing with accused-appellant; that afterwards he saw accused-appellant climb upstairs; that thereafter, the victim asked, “Ano ba ‘yun?” as he looked upward; and that while doing so, accused-appellant passed by with a knife and said, “Pare, sandali lang,” and immediately thrust the knife by stabbing the victim with his right hand and pushing the chest of the victim with his left (p. 81, Rollo).

The second witness, Teresita Limpiado, testified that at the time of the incident, she was talking to accused-appellant in front of her house while the latter was installing the PVC pipe for water drainage when her husband asked, “Ano ba ‘yun?”; that accused-appellant was inside his house and his companion, Mario Bacamonte, was also working on the drainage; that after the inquiry, the victim requested Bacamonte to stop the installation; that while they were staring upwards, accused-appellant immediately boxed her husband, and when the latter faced her, she saw blood oozing from his stomach (p. 82, Rollo).

During the trial, the defense subjected witness Gary Miano to intensive cross-examination in an attempt to discredit him. Much capital is sought in the declaration of this witness that accused-appellant, although left-handed, used his right hand in stabbing the victim. To this, medico-legal Dr. Antonio Vertido testified:

Atty. Villacarlos

Q In the event, Mr. Witness, that the accused is left handed as he is left handed, now, what would you say with respect to the direction of the wound when the witness Garry Miano testified that the accused allegedly used his right hand?

A Well, with regards to the left-handedness or right handedness of an individual, we can not really say with certainty, with what happened or with regards to the stab wound and the thrust, so, it can either be is a right handed, left handed, the fact remains the same. The stabbed wound as regardless of whatever the position it can be, sir.

(tsn, December 12, 1995, pp. 17-18.)

The fact that Teresita Limpiado did not corroborate Gary Miano’s testimony concerning his presence two meters away from the crime scene is of no moment. Teresita was obviously preoccupied with her conversation with Mario Bacamonte and was facing his direction. Hence, her view was quite limited. It is also argued that Teresita said that there were other people present, but these persons were not called to the stand. The People surely had the discretion to decide whether or not any witness should be presented during the trial. Then too, the defense had access to the witnesses and could have moved for the issuance of a subpoena to compel the witnesses to testify (People vs. Andal, 279 SCRA 474 [1997]) in order to clarify the points they now raised.

Moreover, the defense tried to impeach Teresita Limpiado by asserting that her view was blocked by the taller deceased when the stabbing occurred. It is said that she could not have seen the actual stabbing by accused-appellant. On the contrary, Teresita did not have to see the actual stabbing. Initially, she was staring upward (toward Mario Bacamonte). Then, when she heard Wilfredo cry, “Aray”, she turned her head and saw accused-appellant holding a weapon. The victim then turned to her and she saw blood oozing from his belly. That was enough to conclude that accused-appellant did stab Wilfredo (tsn, May 16, 1995, p. 46).

On the strength of the testimony of the two aforestated witnesses, we affirm the trial court in rejecting accused-appellant’s version of the incident. To escape liability, accused-appellant concocted his own story, viz: that after his argument with Teresita about the fixing of the sink in their rented house, he was initially at the ground floor and went up to the second floor of his rented house, taking a knife downstairs. Upon going back to ground floor, he saw that the victim was being pacified and held by Teresita. However, the victim was able to extricate himself from Teresita, after which the victim raised his arm and attacked accused-appellant. At this juncture, accused-appellant allegedly retreated toward the steps of the rented house but he had nowhere else to go. Hence, he stabbed the victim (p. 10, Appellant’s Brief).

This story is punctured by loopholes. First, when the victim lunged at accused-appellant, why would accused-appellant think that the victim had a weapon aimed at him? What gave accused-appellant the idea that there was indeed danger to his life and limb when the victim attacked him? He did not even know the victim, considering that he transferred to the area only four days before (tsn, April 18, 1996, p. 164). Second, as explained by the trial court, accused-appellant’s assertion that he had nowhere else to go when he thrust the knife he held, is illogical. He said he retreated to the corner of his house and could not retreat any further considering that he was standing on a small pathway with concrete steps (ibid., p. 1650). That is quite a flimsy excuse for killing another man. Why didn’t he just go up to his house? Instead, he chose the “first means available” which is to stab the victim with an 8-inch knife (tsn, February 16, 1995, p. 23) which had a width of half an inch (ibid., p. 34). And third, he stabbed the victim’s stomach, plainly making sure that the wound would be mortal. True enough, he punctured the victim’s liver, a vital organ. He could have tried to merely immobilize his assailant.

The defense likewise hinges its argument on Mario Bacamonte’s testimony that “he saw Mr. Limpiado walking away from the accused’s residence and that blood stains were found along the accused’s doorstep” (p. 49, Appellant’s Brief). His exact words were: “When I saw the blood, I was below the window of the house and the blood was in front of me.” (tsn, July 27, 1995, p. 41) Hence, there was no mention that blood was actually found along the doorstep of accused-appellant’s house. The location could even be exactly where the victim was while he was talking to Bacamonte. Further, the police investigators did not mention any such detail in their report.

As regards the direction of the wound, Dr. Antonio Vertido, the Medico-Legal Officer, testified that the location of the wound was at the epigastric area or the upper part of the abdomen; and that the direction is going backward, downward and lateral. The defense banks on the downward direction of the wound to support its argument that the victim did lunge toward accused-appellant, leaving the latter nowhere else to go but up the steps toward his rented house. And this elevated position explains the downward position of the wound.

To this argument we hold that a thrusting motion may also effect a downward position of the wound. In fact, it may even be deduced that accused-appellant did intend to kill the victim by the force of the thrust. The alacrity in his impassioned thrust is shown by the fact that it actually cut the 7th rib of the victim, penetrating the diaphragm, and fatally entering the liver (tsn, May 16, 1995, p. 14). As mentioned above, he made certain that his victim would be fatally wounded.

Contrary to the version of the defense, we find that the incident was in reality brought about by a simple misunderstanding between neighbors which is quite common in urban neighborhoods, but was blown out of proportion because of accused-appellant’s violent temper. And because of this temper he descended to the beastly level of humanity, with the intent to destroy his victim, Wilfredo Limpiado. His act was certainly deliberate. He went up his rented house, intentionally looked for a knife, and when he saw the victim downstairs, immediately stabbed him to death, as shown by the fact that he thrust the knife into the victim’s stomach ensuring a fatal and severe injury.

As similarly held in People vs. Parana (64 Phil. 331 [1937]), judging from the condition of the weapon with which accused-appellant provided himself, as well as the manner and circumstances under which he committed the aggression, accused-appellant's intention to kill the victim is quite evident.

Treachery is extant where at the time of the attack the victim was not in a position to defend himself and the offender consciously and deliberately adopted the particular means, methods, or forms of the attack employed by him (People vs. De Manuel, 263 SCRA 49 [1996]). Its essence lies in the attack which comes without warning, and is swift, deliberate and unexpected, and affords the hapless, unarmed and unsuspecting victim no chance to resist or to escape (People vs. Isleta, 264 SCRA 374 [1996]). The perpetrator must employ means, methods, or forms which tend directly and specially to insure the execution of the crime.

Prior to the stabbing, the victim was standing in front of his wife Teresita, while the victim was talking to Mario Bacamonte who was standing above him. The Solicitor General argues that immediately, without the slightest provocation, accused-appellant arrived and stabbed the victim without warning, giving the victim no time for preparation, resistance, or escape (p. 12, Appellee’s Brief). We, however, find otherwise.

We hold that notwithstanding accused-appellant’s intent to kill the victim, treachery cannot be appreciated against him. Although he deliberately obtained a weapon, the evidence shows that he only met the victim by chance when he went down from the house. And on the spur of the moment, he stabbed the victim. The evidence does not show that he knew that the victim would be downstairs. Actually, when he left Bacamonte, only the victim’s wife, Teresita, was there.

The following facts as presented in the Appellee’s Brief filed by the Office of the Solicitor General, are relevant:

. . . Appellant and Mario were at that time fixing a sink at the second floor of their rented house (ibid). Later, appellant went to the ground floor to install a PVC pipe while Mario stayed at the second floor (ibid., pp. 2 & 6). While appellant was installing the PVC pipe, his neighbor, Teresita Limpiado confronted him and told him to stop fixing their (appellant’s) sink because the Limpiados will elevate their house and the sink being fixed by appellant will necessarily obstruct that of the Limpiados (ibid). The house of the Limpiados is only three (3) meters in front of appellant rented house (ibid). In response, appellant told Teresita that they (appellant and Mario) cannot stop the work because they had asked permission for it from the owner of the house (ibid., p. 3). Thereafter, appellant went up to the second floor of his house where he took a knife and some wires. After taking the knife and wires, appellant went back to the ground floor (tsn, April 18, 1996, p. 5).

(pp. 4-5, Appellee’s Brief.)

It is thus clear that when accused-appellant went up to the second floor to obtain the fatal weapon, the victim had not yet emerged from the kitchen to converse with Bacamonte. When accused-appellant went down from his house, he chanced upon the victim and with haste, stabbed the latter.

Significantly, in treachery, the mode of attack must be consciously adopted. This means that the accused must make some preparation to kill the deceased in such a manner as to insure the execution of the crime or to make it impossible or hard for the person attacked to defend himself or retaliate. The mode of attack, therefore, must be planned by the offender, and must not spring from the unexpected turn of events (Reyes, The Revised Penal Code, Vol. I, 1993 ed., p. 416). Such circumstances were not present in the case at bar considering the brisk stabbing of the victim.

Voluntary surrender, however, cannot be appreciated in favor of accused-appellant. This circumstance will mitigate one’s liability only if the following requisites concur: (a) the offender has not been actually arrested; (b) the offender surrenders himself to a person in authority or to an agent of a person in authority; and (c) the surrender is voluntary (People vs. Castillo, 261 SCRA 493 [1996]; People vs. Rapinut, 263 SCRA 515 [1996]; People vs. Hanasan, 29 SCRA 534 [1969]). The surrender, which must be spontaneous, must be considered only when the accused, before his arrest, voluntarily surrenders, showing either acknowledgment of his guilt or an intention to save the authorities the trouble and expense that his search and capture would require (Quial vs. Court of Appeals, 126 SCRA 28 [1983]; People vs. Radomes, 141 SCRA 548 [1986]). In the aforecited Radomes case, the appellant therein did not offer any resistance nor try to hide when the policeman ordered him to come down his house and he even brought the bolo that he used to commit the crime and voluntarily gave himself up to the authorities before he could be arrested.

In the case at bar, accused-appellant claims that he personally instructed Mario Bacamonte to call the police authorities and thereafter peacefully surrendered his person to the authorities. There is, however, one very important and unrefuted detail that goes against the voluntariness and spontaneity of his surrender – the fact that accused-appellant threw away the knife that he used in stabbing the victim, which he did out of fear, as he himself testified (tsn, April 18, 1996, p. 1684; Feb. 16, 1995, p. 67). We thus find that the only reason for accused-appellant’s supposed surrender is to ensure his safety, his arrest being inevitable (People vs. Deopante, 263 SCRA 691 [1996]). Further, it will be observed that accused-appellant had no conscious effort to surrender. In fact, he was merely fetched from his house by SPO1 Moises Bernal for investigation. The fact alone that he did not resist but went peacefully with the police does not mean that he voluntarily surrendered (Ibid.) Hence, the trial court ruled correctly that his act of waiting for the policeman to arrive cannot be considered as voluntary surrender.

As regards the civil indemnity awarded by the trial court, we slightly modify the actual damages, consisting of sums spent by private complainant for her husband’s hospitalization, funeral, and burial expenses, from P32,397.40 as awarded by the trial court, to P32,597.00, to include the amount of P200.00 spent for at the wake of the deceased (tsn, April 20, 1995, p. 25; p. 1104, Record). We affirm the sum of P50,000.00 awarded as moral damages to indemnify private complainant, in accord with recent jurisprudence.

Hence, considering that treachery is not attendant in the case at bar, the crime committed is homicide which is punishable by reclusion temporal under Article 249 of the Revised Penal Code. Applying the Indeterminate Sentence Law, the imposable penalty goes down by one degree.

WHEREFORE, the judgment appealed from is hereby AFFIRMED, with the modification that accused-appellant is found guilty beyond reasonable doubt only of the crime of homicide, and, for purposes of the Indeterminate Sentence Law, considering that no aggravating or mitigating circumstance attended the commission of the crime, accused-appellant is hereby sentenced to an indeterminate penalty ranging from eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal, as maximum. The awards of indemnity are likewise affirmed, with the modification above-stated.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ., concur.