SECOND DIVISION

[G.R. No. 132750. December 14, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELGER GUZMAN, accused-appellant.

D E C I S I O N

DE LEON, JR., J.:

This is an appeal from the Decision[1] dated September 30, 1997 of the Regional Trial Court, Branch 16, Ilagan, Isabela, finding accused-appellant Elger Guzman guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty of reclusion perpetua.

The Information charging accused-appellant with the crime of murder reads:

That on or about the 18^th day of November, 1995, in the municipality of Ilagan, province of Isabela, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to kill and by means of treachery, did then and there, willfully, unlawfully and feloniously, assault, attack and stab with a Fan Knife (Balisong) one Elmer Aquino, inflicting upon him a stab wound on his body, which directly caused his death.[2]

When arraigned on July 29, 1997, accused-appellant Elger Guzman, assisted by counsel, pleaded not guilty.[3] Thereafter, trial on the merits ensued.

The version of the prosecution:

Eyewitness Lolito Aquino testified that in the evening of November 18, 1995, he attended the wedding party held at the residence of Feliciano Valdez in Barangay Bigao, Ilagan, Isabela. Dancing started at 7:00 o’clock in the evening. At about 10:00 o’clock in the evening, Lolito Aquino was watching the dance by the roadside while he was beside his nephew, Elmer Aquino. Appellant Elger Guzman who was known to Lolito Aquino since childhood, was also watching the dance. Then Elmer Aquino approached the appellant and asked if they could talk somewhere else. Elmer Aquino did not try to touch appellant when he made the request. Appellant answered “id toyen” meaning “let’s talk here.” Thereafter, appellant stabbed Elmer Aquino with a fan knife hitting him in the chest just below the left shoulder. Elmer Aquino ran towards the dance hall, and then fell and died on the spot. At the time of the stabbing incident, Lolito Aquino was only two (2) meters away from the appellant and Elmer Aquino. Lolito Aquino gave his sworn statement[4] to the police regarding the incident.

Dr. Rodelmar De Leon, Municipal Health Officer of San Isidro, Isabela, conducted an autopsy of the victim and found one stab wound on the upper lobe of the victim’s left lung, which was fatal. The cause of death was hypovolemic shock secondary to massive bleeding. There was also a four-centimeter incised wound at the base of the right thumb of the victim, which could have been caused by a sharp object like a knife.[5] Dr. De Leon prepared the Autopsy Report[6] on the body of the victim and a diagram[7] of the location of the wounds sustained by the victim.

Salcedo Aquino, father of the victim, testified that Elmer Aquino was married to Rodalyn Aquino, who was in Singapore. They have two (2) children. Elmer Aquino was a farmer earning Fourteen Thousand Pesos (P14,000.00) per cropping. He was saddened by the death of his son and prayed for moral damages.[8]

The defense admitted the funeral expenses incurred by the victim’s family in the amount of Ten Thousand Pesos (P10,000.00), and the expenses for the nine-day wake in the amount of Ten Thousand Pesos (P10,000.00).[9]

The version of the defense:

Accused-appellant Elger Guzman, a farmer, gave a different version of the stabbing incident. He declared that he stabbed Elmer Aquino accidentally in self-defense. Appellant testified that in the evening of November 18, 1995, while he was watching the dance at the wedding party of Rufino Valdez in Barangay Bigao, Ilagan, Isabela, Elmer Aquino pulled him and told him to go out because he was going to tell him something. He told Elmer that they should just talk right then and there because he was watching the dance. Nevertheless, Elmer pulled him three (3) times but he refused to go outside with him. Thereafter, Elmer tried to stab him with a kitchen knife, but he was able to take hold of Elmer’s right hand which held the knife, twisted it and pushed it away from him (appellant), as a result of which Elmer was hit in his left upper chest. Appellant stated that he did not stab Elmer, and that he did not expect Elmer to die as a result of grappling with him. When he saw Elmer wounded, he ran away because he was afraid. On November 21, 1995, three (3) days after the incident, he surrendered to Policeman Rodrigo Lucas of Ilagan, Isabela to prove that he was not at fault. He was afraid to surrender because he heard that the police always hurt the suspect in jail.[10]

Defense witness Leonard Angangan testified that in the evening of November 18, 1995, he attended the wedding party held at the house of Feliciano Valdez located at Centro Bigao, Ilagan, Isabela, where he saw Elmer Aquino, accused-appellant Elger Guzman and many others. He knew Elmer Aquino and appellant because they were barriomates. He observed that Elmer Aquino was irritable and uneasy. Elmer Aquino was then smoking marijuana the smell of which he was familiar with because he had tried smoking marijuana before. He (Angangan) was standing beside appellant watching the dance when Elmer Aquino approached the appellant and tried to pull the latter outside the dance hall, but he did not succeed. Thereafter, Elmer Aquino tried to stab appellant with a stainless steel knife but appellant was able to parry the thrust. Appellant then held the hand of Elmer and twisted his arm. Elmer fell to the ground and then got up. When Leonard Angangan saw the people scampering, he also ran away. He did not notice that someone was stabbed. He only learned that Elmer Aquino was stabbed by the appellant from his parents who heard the news when they went to the market. The brothers and sisters of the appellant requested him to be a witness.[11]

Rebuttal witness Benny Ramos, uncle of the victim, Elmer Aquino, and a resident of Barangay Bigao, testified that at the time of the stabbing incident, he was just two (2) meters away from the appellant and Elmer Aquino. When Elmer Aquino approached the appellant, Elmer was not armed with a knife. He heard Elmer asked appellant if they could talk outside. Appellant did not reply, and then he stabbed Elmer. Ramos stated that it was not true that appellant and Elmer grappled for the possession of the knife.[12]

On September 30, 1997, the court a quo rendered judgment, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing findings and considerations, the prosecution having proved the guilt of the accused beyond reasonable doubt for the offense charged, and there being no aggravating nor mitigating circumstance to consider, the Court hereby sentences the accused to RECLUSION PERPETUA, with all the accessory penalties provided for by law; to indemnify the heirs of the deceased victim the sum of P20,000.00 for funeral expenses; P600,000.00 for lost earnings and an additional P300,000.00 by way of moral and exemplary damages, and to pay the costs.

SO ORDERED.[13]

Appellant ascribed to the trial court this lone error:

THE TRIAL COURT ERRED WHEN IT DISREGARDED AND FAILED TO TAKE INTO ACCOUNT THE TWO MITIGATING CIRCUMSTANCES OF UNLAWFUL AGGRESSION ON THE PART OF THE VICTIM AND VOLUNTARY SURRENDER BY THE ACCUSED IMMEDIATELY AFTER THE INCIDENT.[14]

Appellant faulted the trial court for not taking into account two (2) mitigating circumstances, that is, unlawful aggression on the part of the victim and his (appellant’s) voluntary surrender after the stabbing incident. Appellant contended that the victim was the unlawful aggressor, and in defending himself against the victim’s aggression, he accidentally stabbed the victim. Appellant asserted that when he refused to go with the victim outside the dance area, it was the victim who drew from his waist a bladed weapon and tried to stab him. However, he was able to take hold of the right wrist of the victim’s hand, which held the weapon, and in the process of pushing the bladed weapon away from him (appellant), the weapon hit the victim once in the upper shoulder causing his death. The slit found in the hand of the victim showed that it was the victim who was the aggressor. He later voluntarily surrendered to the local authorities.

The appeal is partly meritorious.

Appellant insists on his version of the incident that in self defense, he accidentally stabbed the victim who was the unlawful aggressor. However, the trial court gave credence to the version of the prosecution that appellant just stabbed the victim after the latter asked appellant if they could talk outside the dancing place. The trial court stated, thus:

xxx xxx xxx

The question here is credibility-whose tale is to be credible. One thing though is undeniable, that it was the accused who stabbed the deceased victim. To the accused claim that the stabbing was accidental, this yarn hardly deserves credence and must be rejected. For how could the accused defense be two-pronged, one claiming that the stabbing was accidental and by his sworn statement he virtually claims complete self-defense? The posturing of the defense in the stabbing incident cannot be acceptable because of its glaring inconsistency and indubitably illogical. Then, too, his offer to enter a plea of guilty of the lesser offense of homicide betrays his dismal pretensions. His defense, therefore, if ever, deserves scant consideration.[15]

xxx xxx xxx

Well-settled is the rule that where the credibility of witnesses is in issue, the appellate courts will generally not disturb the findings of the trial court, which is in a better position to determine the issue, having the advantage of hearing and witnessing the deportment of the witnesses during trial, in the absence of any clear showing that the trial court had overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which could have altered the conviction of the appellant.[16] In the instant case, we see no reason to disturb the findings of the trial court.

We have carefully reviewed the records and agree with the Solicitor General’s observation that the prosecution witness, Lolito Aquino, positively testified that appellant stabbed Elmer Aquino without any provocation from the latter. On the other hand, appellant’s testimony of the incident before the court was inconsistent with the facts given in his counter-affidavit[17] dated December 3, 1996. In said counter-affidavit, which was executed more than one year after the stabbing incident, appellant stated that while he was attending a wedding dance at the residence of Feliciano Valdez in Barangay Bigao, Ilagan, Isabela, Elmer Aquino suddenly grabbed the left side of his body and simultaneously tried to stab him with a knife, but he was able to parry the thrust. Before the court a quo, however, he testified that Elmer Aquino tried to stab him when he refused to accede to Elmer’s request that they talk outside the dance area, but he was able to parry the thrust. Moreover, appellant stated in his counter-affidavit that in the course of grappling for the possession of the knife, he stabbed and wounded the victim in his body just to stop his unlawful aggression against his person, while he testified in court that in the process of twisting Elmer’s right hand (which held the knife) and pushing it away from him (appellant), he accidentally stabbed and wounded Elmer. Although appellant denied the portion in his counter-affidavit wherein he stated that he stabbed and wounded Elmer just to stop the latter’s unlawful aggression on his person, claiming that he was still in a state of shock at that time, his denial is hardly credible considering that he executed his counter-affidavit more than one year after the stabbing incident, which is a sufficient period of time for him to recover his composure. The aforementioned inconsistencies only show that the appellant’s version of the incident is contrived in his effort to exculpate himself from liability. Further, as observed by the Solicitor General, defense witness Leonard Angangan, who did not see the actual stabbing of the victim, was also inconsistent in his testimony as he first stated that Elmer Aquino did not talk to appellant before he dragged appellant outside, and then later stated that he heard Elmer requesting appellant that they go outside and talk but appellant refused.[18] Pitted against the self-serving testimony of appellant and the testimony of defense witness Leonard Angangan, who did not see the actual stabbing of the victim, the positive testimony of prosecution witness Lolito Aquino deserves more weight and credence. The absence of evidence of improper motive on the part of the prosecution witness Lolito Aquino to testify against the appellant strongly sustains the conclusion that no such improper motive exists and that his testimony is worthy of full faith and credit.[19]

Invoking incomplete self-defense, appellant appeals for the Court’s appreciation of the mitigating circumstance of unlawful aggression in his favor. Appellant, however, failed to establish by clear and convincing evidence that he acted in self defense. Unlawful aggression presupposes an actual, sudden and unexpected attack or an imminent danger thereof, and not merely a threatening or intimidating attitude.[20] In the case at bar, the request of the victim Elmer Aquino to appellant that they talk outside the dance area was not an unlawful aggression that justified appellant to stab him in self-defense. Hence, the trial court did not err in disregarding the said mitigating circumstance.

However, we agree with appellant that the court a quo erred in not appreciating the mitigating circumstance of voluntary surrender in his favor. Voluntary surrender has the following requisites: (a) that the offender had not been actually arrested; (b) that the offender surrendered himself to a person in authority or to the latter’s agent; and (c) that the surrender was voluntary.[21] For voluntary surrender to be appreciated, the same must be spontaneous in such a manner that it shows the interest of the accused to surrender unconditionally to the authorities, either because he acknowledged his guilt or because he wishes to save them the trouble and expenses necessarily incurred in his search and capture.[22]

The trial court erroneously held that appellant’s surrender was not voluntary because his surrender was more of an apprehension on his part that if apprehended he would be subjected to torture which is more speculative than real.[23] However, the transcript showed that initially appellant was afraid to surrender because he heard that the police always hurt the suspect in jail. Upon the advice of his brothers and cousin, appellant nevertheless surrendered to Policeman Rodrigo Lucas at the latter’s residence in Linglingay, Gamu, Isabela on November 21, 1995, three (3) days after the stabbing incident.[24] To us, although appellant was afraid to surrender because of his apprehension that he would be hurt in jail, yet appellant in fact voluntarily surrendered to policeman Rodrigo Lucas, thus saving the authorities the trouble and expense in effecting his capture. Granting that it were also true that appellant surrendered to Policeman Rodrigo Lucas because he was afraid that if apprehended by another policeman he would be subjected to torture, this circumstance should not affect the voluntariness and spontaneity of his surrender. In the parallel case of People v. Amazan,[25] although the accused-appellant therein surrendered four (4) days later because of fear of reprisal, the Court said that the admission should not be taken against him, as it has been held[26] that said circumstance does not detract from the spontaneity of the surrender, nor does it alter the fact that by giving himself up, the accused-appellant has saved the State the time and trouble of searching for him until arrested. In People v. Bautista,[27] this Court appreciated the mitigating circumstance of voluntary surrender in favor of the accused-appellant who surrendered himself to a police authority four (4) days after the commission of a crime. Hence, the mitigating circumstance of voluntary surrender should be appreciated in favor of appellant.

The trial court incorrectly ruled that the killing was attended by treachery. There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.[28] Treachery requires the concurrence of two (2) conditions: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2) the deliberate and conscious adoption of the means of execution.[29]

The trial court erroneously appreciated the qualifying circumstance of treachery against appellant on the ground that the stabbing was somewhat sudden and unexpected, without provocation from the victim.[30] However, it does not always follow that because the attack is sudden and unexpected, it is tainted with treachery.[31] Significantly, in treachery, the mode of attack must be consciously adopted.[32] 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 to retaliate.[33] The mode of attack, therefore, must be planned by the offender, and must not spring from the unexpected turn of events.[34] In the case at bar, there is reasonable doubt that appellant deliberately and consciously adopted a mode of attack to kill the victim without risk to himself considering that both appellant and the victim were then attending a wedding party, and it was the victim who frontally approached the appellant who at that time was watching the dance, and asked if they could talk outside the dance area. Appellant answered that they could talk right then and there, after which appellant stabbed the victim, hitting him on the left chest. It appears that the decision of appellant to stab the victim was sudden. The suddenness of an attack, does not, of itself, suffice to support a finding of alevosia, even if the purpose was to kill, so long as the decision was made all of a sudden and the victim’s helpless position was accidental.[35] Considering the rule that treachery cannot be inferred but must be proven as fully and convincingly as the crime itself, any doubt as to the existence of treachery must be resolved in favor of the accused-appellant.[36] Absent any other circumstances under Article 248 of the Revised Penal Code that would qualify the killing to murder, appellant can only be held liable for homicide under Article 249 of the Revised Penal Code.

The crime of homicide is punishable by reclusion temporal.[37] Applying the Indeterminate Sentence Law, the minimum penalty for homicide in this case ranges from six (6) years and one day to twelve (12) years of prision mayor, and the maximum penalty ranges from twelve (12) years and one day to fourteen (14) years and eight (8) months of reclusion temporal in the minimum period, considering the presence of the mitigating circumstance of voluntary surrender.

The court a quo correctly awarded actual damages to the heirs of the victim in the total amount of Twenty Thousand Pesos (P20,000.00) as the defense admitted that the victim’s family incurred funeral expenses of Ten Thousand Pesos (P10,000.00) and expenses for the nine-day wake in the amount of Ten Thousand Pesos (P10,000.00).[38]

Although, the court a quo awarded the heirs of the victim loss of earning capacity of the deceased, the amount of Six Hundred Thousand Pesos (P600,000.00) should be reduced to Three Hundred Seventy Thousand Pesos (P370,000.00). The father of the victim, Salcedo Aquino, testified that Elmer Aquino was a farmer who earned Fourteen Thousand Pesos (P14,000.00) per cropping but failed to adduce evidence to substantiate his claim.[39] Nevertheless, Article 2206 of the Civil Code provides, “the defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter x x x unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death.” In the instant case, since there is no indication that the deceased had no earning capacity at the time of his death, we are inclined to give credit to Salcedo Aquino’s testimony.[40] Salcedo Aquino, however, did not testify regarding the number of croppings the deceased victim had in a year. Nonetheless, the court a quo ruled that “[e]arning about Twenty Thousand Pesos (P20,000.00) a year as a tiller is considered reasonable x x x.” Adopting the lower court’s assessment that the deceased earned about Twenty Thousand Pesos (P20,000.00), we deduct therefrom his necessary and incidental expenses estimated at fifty per cent (50%), leaving a balance of Ten Thousand Pesos (P10,000.00).[41] We then multiply his net annual income of P10,000.00 by his life expectancy[42] of 37 years to arrive at the amount of Three Hundred Seventy Thousand Pesos (P370,000.00), which represents the loss of earning capacity of the deceased.

The court a quo also awarded moral damages and exemplary damages in the amount of Three Hundred Thousand Pesos (P300,000.00) to the heirs of the victim. While moral damages under Article 2206, paragraph 3, of the Civil Code may be awarded by the court for the mental anguish suffered by the heirs of the victim by reason of the victim’s death, which was testified to by the father of the victim, the amount should, however, be reduced to Fifty Thousand Pesos (P50,000.00) in accordance with prevailing jurisprudence.[43] The purpose for making such an award is not to enrich the heirs of the victim but to compensate them for injuries to their feelings.[44] With regard to the award of exemplary damages, Article 2230 of the Civil Code provides that in criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances.[45] In the instant case, no aggravating circumstance attended the commission of the crime; hence, the award of exemplary damages should be deleted.

Further, appellant should be made to pay the heirs of the victim the sum of Fifty Thousand Pesos (P50,000.00) as civil indemnity, which is granted without need of proof other than the commission of the crime.[46]

WHEREFORE, the assailed Decision of the Regional Trial Court in Criminal Case No. 2527 is AFFIRMED with the MODIFICATION that accused-appellant Elger Guzman is found guilty of homicide only, and is hereby sentenced to suffer an indeterminate prison term ranging from six (6) years and eight (8) months of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum. Accused-appellant is also ordered to pay the heirs of the victim, Elmer Aquino, Twenty Thousand Pesos (P20,000.00) as actual damages; Fifty Thousand Pesos (P50,000.00) as civil indemnity; Fifty Thousand Pesos (P50,000.00) as moral damages; Three Hundred Seventy Thousand Pesos (P370,000.00) as loss of earning capacity of the deceased; and to pay the costs.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, and Quisumbing, JJ., concur.

Buena, J., on official leave.

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[1] Penned by Judge Teodulo E. Mirasol, Rollo, pp. 12-14.

[2] Records, p. 1.

[3] Records, p. 54.

[4] Exh. “A”, Records, pp. 11-12.

[5] TSN, September 8, 1997, pp. 40-45.

[6] Exh. “B”, Records, p. 82.

[7] Exh. “C”, Records, p. 83.

[8] TSN, August 18, 1997, pp. 25-27.

[9] TSN, August 18, 1997, pp. 9, 14.

[10] TSN, September 24, 1997, pp. 92-105.

[11] TSN, September 18, 1997, pp. 58-83.

[12] TSN, September 24, 1997, pp. 114-120.

[13] Rollo, p. 32.

[14] Rollo, p. 40.

[15] RTC Decision, Rollo, p. 13.

[16] People v. Dorado, 303 SCRA 61, 70 (1999); Espano v. Court of Appeals, 288 SCRA 558, 563 (1998); People v. Cabareño, G.R. No. 138645, January 16, 2001.

[17] Exh. “3”, Records, p. 46.

[18] TSN, September 18, 1997, pp. 67-71.

[19] People v. Ravanes, 284 SCRA 634, 641 (1998); People v. Abella, et al., G.R. No. 127803, August 28, 2000.

[20] People v. Villamor, 292 SCRA 384, 395-396 (1998); People v. Bayocot, 174 SCRA 285, 292 (1989).

[21] Estacio v. Sandiganbayan, 183 SCRA 12, 24 (1990) citing People v. Canamo, 138 SCRA 141, 145 (1985) and People v. Hanasan, 29 SCRA 534, 541-542 (1969).

[22] People v. Gervacio, 24 SCRA 960, 977 (1968) citing People v. Sakam, 61 Phil 27, 34-35 (1934); People v. Rabanillo, 307 SCRA 613, 626 (1999).

[23] Rollo, p. 13.

[24] In his Counter-Affidavit (Exh. “3”, Records, p. 46), accused-appellant Elger Guzman stated that he voluntarily surrendered to Policeman Rodrigo Lucas two (2) days after the incident.

[25] G.R. Nos. 136251, 138606 & 138607, January 16, 2001.

[26] People v. Clemente, 21 SCRA 261, 268-269 (1967).

[27] 254 SCRA 621, 629 (1996).

[28] Article 14 (16), Revised Penal Code.

[29] People v. Barona, 323 SCRA 239, 244-245 (2000); People v. Serzo, Jr., 274 SCRA 553, 569 (1997).

[30] Supra, note 15.

[31] People v. Templo, G.R. No. 133569, December 1, 2000; People v. Sabanal, 172 SCRA 430, 434 (1989).

[32] People v. Santillana, 308 SCRA 104, 120 (1999).

[33] Id., supra, People v. Cabareño citing People v. Albao, G.R. No. 125332, March 2, 2000.

[34] Supra, note 32.

[35] Supra, People v. Templo; People v. Ardisa, 55 SCRA 245, 258 (1974); People v. Macalisang, 130 Phil, 728, 733 (1968).

[36] People v. Bahenting, 303 SCRA 558, 567 (1999); People v. Ballabare, 264 SCRA 350, 369-370 (1996).

[37] Article 249, Revised Penal Code.

[38] People v. Arellano, G.R. No. 122477, June 30, 2000; People v. Francisco, 330 SCRA 497, 506 (2000); People v. Quilang, 312 SCRA 314, 331 (1999).

[39] TSN, August 18, 1997, p. 26.

[40] People v. Laut, G.R. No. 137751, February 1, 2001.

[41] Id.

[42] Computed using the formula: 2/3 x 80 – 24 (age of the victim at time of death); People v. Laut.

[43] People v. Birayon, et al., G. R. No. 133787, November 29, 2000; People v. Dagami, G. R. No. 123111, September 13, 2000.

[44] People v. De la Cruz, G.R. No. 128362, January 16, 2001; People v. Verde, 302 SCRA 690, 706 (1999); People v. Silvestre, 307 SCRA 68, 91 (1999).

[45] People v. Dizon, 320 SCRA 513, 527 (1999).

[46] Supra, People v. Cabareño.