JUSTIFYING CIRCUMSTANCES

1. People of the R.P. vs. Genosa

G.R.No. 135981 15January2004

FACTS OF THE CASE:

That Marivic Genosa, the Appellant on the 15November1995, attacked and wounded his husband, which ultimately led to his death. According to the appellant she did not provoke her husband when she got home that night it was her husband who began the provocation. The Appellant said she was frightened that her husband would hurt her and she wanted to make sure she would deliver her baby safely. In fact, The Appelant had to be admitted later at the Rizal Medical Centre as she was suffering from eclampsia and hypertension, and the baby was born prematurely on December 1, 1995.

The Appellant testified that during her marriage she had tried to leave her husband at least five (5) times, but that Ben would always follow her and they would reconcile. The Apellant said that the reason why Ben was violent and abusive towards her that night was because 'he was crazy about his recent girlfriend, Lulu Rubillos.

The Appellant after being interviewed by specialists, has been shown to be suffering from Battered Woman Syndrome.

The appellant with a plea of self defense admitted the killing of her husband, she was then found guilty of Parricide, with the aggravating circumstance of treachery, for the husband was attacked while asleep.

ISSUES OF THE CASE:

Can Marivic Genosa be granted the Justifying circumstance of Self-defense, and can she be held liable for the aggravating circumstance of treachery?

No, Since self- defense since the existence of Battered woman syndrome, which the appellant has been shown to be suffering in the relationship does not in itself establish the legal right of the woman to kill her abusive partner. Evidence must still be considered in the context of self-defense.

In the present case, however, according to the testimony of the appellant there was a sufficient time interval between the unlawful aggression of the husband and her fatal attack upon him. She had already been able to withdraw from his violent behavior and escape to their children's bedroom. During that time, he apparently ceased his attack and went to bed. The reality or even the imminence of the danger he posed had ended altogether. He was no longer in a position that presented an actual threat on her life or safety.

Without continuous aggression there can be no self-defense. And absence of aggression does not warrant complete or incomplete self-defense.

No, There is treachery when one commits any of the crimes against persons by employing means, methods or forms in the execution thereof without risk to oneself arising from the defense that the offended party might make.

The circumstances must be shown as indubitably as the killing itself; they cannot be deduced from mere inferences, or conjectures, which have no place in the appreciation of evidence. Besides, equally axiomatic is the rule that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as a qualifying circumstance, because the deceased may be said to have been forewarned and to have anticipated aggression from the assailant.

In the present case, however it was not conclusively shown, that the appellant intentionally chose a specific means of successfully attacking her husband without any risk to herself from any retaliatory act that he might make. To the contrary, it appears that the thought of using the gun occurred to her only at about the same moment when she decided to kill her spouse. In the absence of any

convincing proof that she consciously and deliberately employed the method by which she committed the crime in order to ensure its execution, the doubt should be resolved in her favor.

HELD:

The conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However, there being two (2) mitigating circumstances and no aggravating circumstance attending her commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum.

ADDENDUM:

When can BWS (Battered Woman Syndrome) as self defense be appreciated?

Where the brutalized person is already suffering from BWS, further evidence of actual physical assault at the time of the killing is not required. Incidents of domestic battery usually have a predictable pattern. To require the battered person to await an obvious, deadly attack before she can defend her life "would amount to sentencing her to 'murder by installment.' Still, impending danger (based on the conduct of the victim in previous battering episodes) prior to the defendant's use of deadly force must be shown. Threatening behavior or communication can satisfy the required imminence of danger. Considering such circumstances and the existence of BWS, self-defense may be appreciated.

2. People vs. Catbagan(G.R. Nos. 149430-32. February 23, 2004)

Ponente: J. Panganiban

FACTS:After receiving complaints about the gunshots coming from the residence of Danilo Lapidante, who was then was celebrating his birthday, appellant Carmelo Catbagan, an investigator of the Criminal Investigation Service, Philippine National Police, went to the latter’s house to verify who among their group had been firing the Armalite rifle. Suddenly, a piece of stone was hurled from the direction of the celebrant’s house, hitting Catbagan. Irritated, he ordered his companion, Zosimo Pavabier, to look for the one who threw the stone. At that moment, Sgt. Celso Suico of the Philippine Air Force and of the Presidential Security Group, the one responsible for firing the shots, approached and extended his hand towards Catbagan as he introduced himself. Completely ignoring the gesture of the latter, Catbagan drew out his .9mm automatic pistol and fired successively at Suico. Ernesto Lacaden, companion of Suico, who was abruptly awakened as the shots were fired, disembarked from the parked owner-type jeep where he was sleeping. Unexpectedly, two shots were also fired at him by Catbagan. Almost simultaneously, Catbagan directed his attention to Lapidante who was then inside their compound and running towards the main door of their house upon the prompting of his wife to evade the assailant. But before he could reach the safety of their abode, two rapid shots were fired by Catbagan, one of which hit him in the upper part of his body. As a consequence of the injuries they sustained, Suico and Lapidante died, whereas Lacaden had to be treated and confined in the hospital.

In his defense, Catbagan argued that he was justified in shooting the victims, as he was merely defending himself and fulfilling his sworn duties. He claimed that the victims were rushing and encircling him, Lacaden toting an ice-pick while Suico drew a gun from his waist and aimed the pistol at him. Simultaneously, he heard Lapidante shouting, which he believed was asking for a long gun. Threatened of his safety, he drew his own gun fired at the aggressors. He then surrendered himself and his firearms to his superior officer at the CIDG Office. The lower court, nonetheless, convicted him with the crime of homicide, murder, and frustrated murder.

ISSUE:1) Whether or not the appellant was justified in shooting the victims as a direct result of his fulfillment of a duty.2) Whether or not the appellant was entitled to a justifying circumstance of self-defense.3) Whether or not the appellant was entitled to a mitigating circumstance of voluntary surrender.4) Whether or not the characterization of the crimes charged by the trial court was correct.

HELD:1) No. 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, provided that the following requisites must concur: 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. In the instant case, the above mentioned requisites were absent. The appellant was not performing his duties at the time of the shooting as there was no proof that he had personal knowledge on who had been firing the Armalite, nor he was there to effect an arrest. The fatal injuries that he inflicted on the victims were not a necessary consequence of the performance of his duty as a police officer.

2) No. Article 11 of the RPC provides that anyone who acts in defense of his person or rights do not incur criminal liability, provided that the following circumstances concur: 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. In the circumstances surrounding the shooting of Suico, only a majority of the elements of self-defense were present. However, he may still be credited with a mitigating circumstance in accordance with Article 13 of the RPC. With regard to the circumstances surrounding the shooting of Lapidante and Lacaden, no unlawful aggression was shown. Thus, the justifying circumstance of self-defense will not apply.

3) Yes. In order 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. It is sufficient that that act be spontaneous and clearly indicative of the intent of the accused to surrender unconditionally. 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 intent to surrender unconditionally to the authorities. Thus, he was credited with the mitigating circumstance of voluntary surrender.

4) No. The crimes were not properly characterized except with the case of Suico. Treachery was alleged in the case, thus qualifying the shooting of Lapidante and Lacaden as murder and frustrated murder respectively. In order 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. With regard to the shooting of Lapidante and Lacaden, the Court held that even if the positions of the victims were vulnerable, there was still no treachery, as the appellant did not deliberately adopt such mode of attack. His decision to shoot them was clearly sudden. Thus, in the case of Lapidante, the Court modified the crime from murder to homicide; while in the case of Lacaden, the crime was modified from frustrated murder to less serious physical injuries

EXEMPTING CIRCUMSTANCES

1.Aradillos vs. CA [G.R. No. 135619, January 15, 2004]

Post under case digests, Criminal Law at Tuesday, February 21, 2012 Posted by Schizophrenic Mind

Facts: At around 5:45 in the afternoon of February 3, 1992, Gloria rebuked herein petitioners Aradillos and Galabo when she saw them in the act of cutting the bamboo bridge located on the property of her husband. Thereupon, petitioners chased her and they caught up with her near the house. Galabo then hit her several times with a piece of wood and his carpentry bag causing her to fall down. While Gloria was staggering face down, Aradillos hacked her twice with a carpentry ax, hitting her on the right side of the head and on the forehead. She asked for help from the Visto family, her neighbors, who brought her to the clinic of Dr. Alvarez in Matina, Davao. After Dr. Alvarez gave her first aid treatment, Gloria was advised to go to Davao Medical Center where she was confined in the ICU for four days.

The petitioners (accused) on the other hand contend that the injury of Gloria was sustained by mere accidental on the course of the struggle between the victim and Aradillos for the possession of the axe of the latter. As told by petitioner Aradillos, it was Gloria who went near Aradillos who was then cutting the roots of the “idyok” tree, and grabbed the ax, obviously with the intention of stopping Aradillos from cutting the tree. Not wanting to let go of the ax, Aradillos held on to it and the two then struggled for its possession. With both of their hands on the handle, the ax went swaying and swinging, which accidentally hit Gloria.

Issues:

(1) Whether or not the intent to kill was sufficiently proven based on the evidence provided for in the case

(2) Whether or not the defense of accident can exempt the accused from criminal liability.

(3) Whether or not there is conspiracy in the commission of the crime

Held:

(1) No. There was no sufficient medical evidence on record to prove that the nature of injuries inflicted by Aradillos showed any willful intent to kill Gloria.

(2) No. The accused cannot invoke the defense of accident to escape the consequences of his act. Under Article 12, paragraph 4 of the Revised Penal Code, a person, who while performing a lawful act with due care, causes an injury by accident without fault or intention of causing it, is exempt from criminal liability. It cannot be said that Aradillos was performing a lawful act when he struggled with Gloria for the ax as the latter’s act of taking hold of the ax was equivocal, and it cannot be deduced therefrom that he was under the threat of an unlawful aggression from her.

(3) No. Conspiracy has not been proven due to absent competent proof thereof. Hence, Aradillos should be held liable only for less serious physical injuries under Article 265 of the Revised Penal Code, as amended, as the wounds sustained by Gloria required medical attendance of fourteen days and Galabo must be absolved from any liability as the prosecution failed to conclusively prove that he conspired with Aradillos in the commission of the crime.

2. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO ABARCA, accused-appellant, G.R. No. 74433 September 14, 1987

Legal Issue

Shall the accused suffer the penalty of arresto mayor subject by his criminal liability?

Legal Facts

That on or about 15th day of July 1984 in the city of Tacloban Leyte Philippines, the accused Francisco Abarca went to the bus station and travel to Dolores Eastern Samar to fetch his daughter in the morning. Unfortunately, the trip was delayed at 2 pm because of his failure to catch the trip plus the engine trouble which causes him to proceed at his father’s house, and then later went home. When he reaches home the accused caught his wife in the act of sexual intercourse with Khingsley Koh in the meantime his wife and Koh notice him, that makes her wife push her paramour and got his revolver. Abarca peeping above the built-in cabinet in their room jumped and ran away to look for a firearm at the PC soldier’s house to where he got the M-16 rifle. The accused lost his wife and Koh in vicinity at his house and immediately proceeded to a mahjong house where he caught the victim aimed and shoot Koh with several bullets on his different parts of his body causing Mr. Khingsley Koh’s instantaneous death. By that time, Arnold and Lina Amparado had inflicted multiple wounds due to stray bullets causing Mr. Amparado’s one and one-half month loss of working capacity including his serious hospitalization and the latter’s wife who had slighter physical injuries from the incident. The RTC hereby sentenced Abarca to death for Murder with double Frustrated Murder and must indemnify the Amparado Spouses and Heirs of Kho.

3. Holding

The Supreme Court modified the appealed decision of destierro to arresto mayor from the lower court sentencing four months and 21 days to six months of arresto mayor indemnifying Amparado spouses for expenses and damages.

4. Reasoning

The accused-appellant did not have the intent to kill the Amparado couple. Although as a rule, one committing an offense is liable for all the consequences of his act, the rule presupposes that the act done amounts to a felony. The accused-appellant is totally free from any responsibility performing an illegal act when he fired shots at the victim but he cannot be entirely without fault. It appears that before firing at the deceased, he uttered warning words which is not enough of a precaution to absolve him for the injuries sustained by the Amparados. The acts of execution which should have produced the crimes of murders as a consequence, nevertheless did not produce it by reason of causes independent of his will; nonetheless, the Court finds negligence on his part. He is liable under the first part, second paragraph, of Article 365 that is less serious physical injuries through simple imprudence or negligence. For the separate injuries suffered by the Amparado spouses impose upon the accused-appellant arresto mayor in its medium and maximum period to being the graver penalty.

MITIGATING CIRCUMSTACES

1. People vs. Abella, et.al.

Facts: It all started with an altercation during a basketball game. 3 days later, the 5 victims’ bodies were found in the Pasig River. Victims were Marlon and Joseph Ronquillo, Erwin and Andres Lojero and Felix Tamayo.

Marlon’s hands were tied at the back with an electric cord, he had wounds and died from a gunshot to the head. Andres’ hands were also bound at the back with a rope, his genitals were cut off and had wounds in his body as well, cause of death was asphyxia by strangulation. Joseph’s hands were tied at the back with a basketball t-shirt, had wounds and died of strangulation as well. Erwin’s and Felix’s body had abrasions and burns, there were cord impressions on his wrists, a fracture in his skull and died by drowning.

The accused are Abella, Granada, De Guzman, Valencia (all surnames), for MURDER, qualified by treachery and evident premeditation. There were other accused but their names were dropped from the information later on.

March 1992, the victims Ronquillo brothers were played 3 rounds of basketball in Sta. Mesa Manila against the team of Joey de los Santos. The Ronquillos brothers won the first 2 rounds but the 3rd one ended in a brawl. Later that afternoon, Joey went back to the place carrying 2 pillboxes but were apprehended. So, Joey and his brother just threw stones at the Ronquillos’ house. The neighbors saw this and ran after them and mauled them.

That night, the victims were in front of the Ronquillos’ house. Suddenly, a white Ford Fiera without a plate number stopped in front of the group. There were 10-13 people on board, including Joey and his brother. The passengers in the Fiera alighted, faces covered with handkerchiefs and they were armed. The victims tried to run but a shot was fired and Felix (victim) was shot. They were boxed, kicked and hit and dragged into the van. They were brought to a basement in a compound where witness Elena saw them being mauled, whipped with a gun, beaten with steel tubes and lead pipes. They also had a blowtorch and the victims’ hands were tied. The victims begged for mercy. Afterwards, they were herded back to the car, seeming almost dead. 2 days later, their bodies were found in the Pasig river.

Accused’ defense was an alibi, that they are INC members and were attending a panata that night. According to them, when they read their names in the newspapers as the perpetrators of the crime, they consulted the INC Central Office and were then accompanied by a lawyer to go to the police station to “clear their names,” They were later on identified in a police line-up. The RTC convicted all of them for MURDER, with a penalty of reclusion perpetua.

Issue: Whether or not the accused are entitled to the mitigating circumstance of voluntary surrender.

Held: No. First of all, the witnesses were able to fully establish and prove and connect the appellants-accused to the crime. The SC is sufficiently satisfied that their guilt was proven beyond reasonable doubt.

The killing was characterized by treachery. Though treachery should normally attend at the inception of the aggression, the facts show that the victims were first seized and bound and then slain, hence treachery is present. In this case, it is enough to point out that the victims’ hands were tied at the back when their bodies were found floating in Pasig River. This fact clearly shows that the victims were rendered defenseless and helpless, thereby allowing the appellants to commit the crime without risk at all to their persons. The circumstance of abuse of superior strength was absorbed in treachery.

The appellants’ move to “clear their names” cannot be accepted as voluntary surrender. For a surrender to be voluntary, it must be spontaneous and should show the intent of the accused to submit himself unconditionally to the authorities, either because (1) he acknowledges his guilt or (2) he wishes to save the government the trouble and expense necessarily included for his search and capture. When the accused goes to a police station merely to clear his name and not to give himself up, voluntary surrender may not be appreciated.

2. [G.R. No. 172832. April 7, 2009.]

ROSARIO T. DE VERA, petitioner, vs. GEREN A. DE VERA, respondent.

DECISION

NACHURA, J p:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to reverse the February 28, 2006 Decision 1 of the Court of Appeals (CA) and its May 24, 2006 Resolution 2 in CA-G.R. SP No. 91916. cSaATC

The facts, as found by the CA, are as follows:

Petitioner Rosario T. de Vera accused her spouse Geren A. de Vera (Geren) and Josephine F. Juliano (Josephine) of Bigamy. They were thus indicted in an Information, the accusatory portion of which reads:

That on or about the 31st day of July, 2003, in the Municipality of San Juan, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the said accused Geren A. de Vera being previously united in lawful marriage with Rosario Carvajal Tobias-de Vera, and without said marriage having been legally dissolved, did, then and there willfully, unlawfully and feloniously contract a second marriage with accused Josephine Juliano y Francisco, who likewise has previous knowledge that accused Geren A. de Vera's previous marriage with Rosario T. de Vera is still valid and subsisting, said second marriage having all the essential requisites for its validity. ETHSAI

CONTRARY TO LAW. 3

Upon arraignment, Geren pleaded "Guilty". However, in a Motion 4 dated April 8, 2005, he prayed that he be allowed to withdraw his plea in the meantime in order to prove the mitigating circumstance of voluntary surrender. The motion was opposed 5 by petitioner on the ground that not all the elements of the mitigating circumstance of "voluntary surrender" were present. She added that "voluntary surrender" was raised only as an afterthought, as Geren had earlier invoked a "voluntary plea of guilty" without raising the former. Finally, she posited that since the case was ready for promulgation, Geren's motion should no longer be entertained.

In an Order 6 dated June 6, 2005, the Regional Trial Court (RTC) granted Geren's motion and appreciated the mitigating circumstance of voluntary surrender in the determination of the penalty to be imposed. Thus, on even date, the RTC promulgated Geren's Sentence, 7 the dispositive portion of which reads:

WHEREFORE, the court finds accused Geren A. de Vera guilty beyond reasonable doubt of the crime of bigamy as charged in the Information and there being two (2) mitigating circumstances (Plea of guilty and voluntary surrender), and no aggravating circumstance and applying the provision of Article 349 in relation to paragraph 5, Article 64, Revised Penal Code, as amended, and

the Indeterminate Sentence Law, accused is hereby sentenced to suffer the penalty of 6 MONTHS of ARRESTO MAYOR, as minimum to FOUR (4) YEARS, TWO (2) MONTHS of PRISION CORRECCIONAL, as maximum. HcSaAD

No pronouncement as to cost.

SO ORDERED.

Unsatisfied, petitioner moved for the partial reconsideration 8 of the decision but the same was denied in an Order 9 dated August 25, 2005.

In the meantime, on June 8, 2005, Geren applied for probation 10 which was favorably acted upon by the RTC by referring it to the Probation Officer of San Juan, Metro Manila. 11

For failure to obtain favorable action from the RTC, petitioner instituted a special civil action for certiorari before the CA. However, she failed to persuade the CA which rendered the assailed decision affirming the RTC Order and Sentence, and the assailed resolution denying her motion for reconsideration. In sustaining the appreciation of the mitigating circumstance of voluntary surrender, the CA maintained that all its requisites were present. DaHcAS

Hence, the instant petition based on the following grounds:

THE HONORABLE COURT OF APPEALS HAS DECIDED QUESTIONS OF SUBSTANCE IN A WAY NOT PROBABLY IN ACCORD WITH LAW AND WITH APPLICABLE DECISIONS OF THIS HONORABLE COURT WHEN:

A. IT ERRONEOUSLY FAILED TO APPLY THE RULING IN PEOPLE VS. CAGAS REGARDING THE REQUISITES OF VOLUNTARY SURRENDER TO BE APPRECIATED IN THE INSTANT CASE.

B. IT INCORRECTLY AFFIRMED THE ORDER AND SENTENCE BOTH DATED JUNE 6, 2005 AND THE ORDER DATED AUGUST 25, 2005 RENDERED BY THE PUBLIC RESPONDENT IN APPRECIATING THE MITIGATING CIRCUMSTANCES OF PLEA OF GUILTY AND VOLUNTARY SURRENDER IN FAVOR OF THE PRIVATE RESPONDENT IN CRIMINAL CASE NO. 130139, AN ACT THAT WARRANTS THIS HONORABLE COURT TO EXERCISE ITS APPELLATE JUDICIAL DISCRETION. 12

The petition lacks merit.

While we are called upon to resolve the sole issue of whether the CA correctly denied the issuance of the writ of certiorari, we cannot ignore the procedural issues which the trial and appellate courts failed to appreciate.

In filing her motion for reconsideration before the RTC and her petition for certiorari before the CA, petitioner sought the modification of the court's judgment of conviction against Geren, because of the allegedly mistaken application of the mitigating circumstance of "voluntary surrender". The eventual relief prayed for is the increase in the penalty imposed on Geren. Is this action of petitioner procedurally tenable? aHSTID

Section 7, Rule 120 of the Revised Rules of Criminal Procedure provides:

Sec. 7. Modification of judgment. — A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation.

Simply stated, in judgments of conviction, errors in the decision cannot be corrected unless the accused consents thereto; or he, himself, moves for reconsideration of, or appeals from, the decision. 13

Records show that after the promulgation of the judgment convicting Geren of bigamy, it was petitioner (as private complainant) who moved for the reconsideration 14 of the RTC decision. This was timely opposed by Geren, invoking his right against double jeopardy. 15 Although the trial court correctly denied the motion for lack of merit, we would like to add that the same should have been likewise denied pursuant to the above-quoted provision of the Rules. AIDcTE

As explained in People v. Viernes, 16 the rule on the modification of judgments of conviction had undergone significant changes before and after the 1964 and 1985 amendments to the Rules. Prior to the 1964 Rules of Court, we held in various cases 17 that the prosecution (or private complainant) cannot move to increase the penalty imposed in a promulgated judgment, for to do so would place the accused in double jeopardy. The 1964 amendment, however, allowed the prosecutor to move for the modification or the setting aside of the judgment before it became final or an appeal was perfected. In 1985, the Rules was amended to include the phrase "upon motion of the accused", effectively resurrecting our earlier ruling prohibiting the prosecution from seeking a modification of a judgment of conviction. Significantly, the present Rules retained the phrase "upon motion of the accused". Obviously, the requisite consent of the accused is intended to protect him from having to defend himself anew from more serious offenses or penalties which the prosecution or the court may have overlooked. 18

Equally important is this Court's pronouncement in People v. Court of Appeals 19 on the propriety of a special civil action for certiorari assailing a judgment of conviction. In that case, the trial court convicted the accused of homicide. The accused thereafter appealed his conviction to the CA which affirmed the judgment of the trial court but increased the award of civil indemnity. The Office of the Solicitor General (OSG), on behalf of the prosecution, then filed before this Court a petition for certiorari under Rule 65, alleging grave abuse of discretion. The OSG prayed that the appellate court's judgment be modified by convicting the accused of homicide without appreciating in his favor any mitigating circumstance. In effect, the OSG wanted a higher penalty to be imposed. The Court declared that the petition constituted a violation of the accused's right against double jeopardy; hence, dismissible. Certainly, we are not inclined to rule differently.

Indeed, a petition for certiorari may be resorted to on jurisdictional grounds. In People v. Veneracion, 20 we entertained the petition for certiorari initiated by the prosecution to resolve the issue of whether the RTC gravely abused its discretion in imposing a lower penalty. In that case, the trial judge, fully aware of the appropriate provisions of the law, refused to impose the penalty of death because of his strong personal aversion to the death penalty law, and imposed instead reclusion perpetua. In resolving the case in favor of the prosecution, the Court concluded that the RTC gravely abused its discretion, and remanded the case to the trial court for the imposition of the proper penalty. By so doing, we allowed a modification of the judgment not on motion of the accused but through a petition initiated by the prosecution. But it was an exceptional case. Here and now, we reiterate the rule that review is allowed only in apparently void judgments where there is a patent showing of grave abuse of discretion amounting to lack or excess of jurisdiction. The aggrieved parties, in such cases, must clearly show that the public respondent acted without jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction. 21 IAcTaC

Grave abuse of discretion defies exact definition, but it generally refers to "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction." The abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility. 22 Obviously, no grave abuse of discretion may be attributed to a court simply because of its alleged misappreciation of the mitigating circumstance of voluntary surrender. Consequently, the trial court's action cannot come within the ambit of the writ's limiting requirement of excess or lack of jurisdiction. Thus, the trial court's action becomes an improper object of, and therefore non-reviewable by, certiorari. 23

Even if we dwell on the merit of the case, which had already been done by the appellate court, we find no cogent reason to grant the instant petition.

For voluntary surrender to be appreciated, the following requisites should be present: 1) the offender has not been actually arrested; 2) the offender surrendered himself to a person in authority or the latter's agent; and 3) the surrender was voluntary. 24 The essence of voluntary surrender is spontaneity and the intent of the accused to give himself up and submit himself to the authorities either because he acknowledges his guilt or he wishes to save the authorities the trouble and expense that may be incurred for his search and capture. 25 Without these elements, and where the clear reasons for the supposed surrender are the inevitability of arrest and the need to ensure his safety, the surrender is not spontaneous and, therefore, cannot be characterized as "voluntary surrender" to serve as a mitigating circumstance. 26

Petitioner is correct in saying that in People v. Cagas 27 and in People v. Taraya, 28 the Court added a fourth requisite before "voluntary surrender" may be appreciated in favor of the accused — that there is no pending warrant of arrest or information filed. Since the warrant of arrest had been issued, petitioner insists that arrest was imminent and the "surrender" could not be considered "voluntary". AIDSTE

In Cagas, after the stabbing incident, the accused ran to the upper portion of the cemetery where a police officer caught up with him. Thereupon, he voluntarily gave himself up. The Court held that if the accused did then and there surrender, it was because he was left with no choice. Thus, the "surrender" was not spontaneous.

In Taraya, when the accused learned that the police authorities were looking for him (because of a warrant for his arrest), he immediately went to the police station where he confessed that he killed the victim. Notwithstanding such surrender and confession to the police, the Court refused to appreciate the mitigating circumstance in his favor.

Lastly, in People v. Barcino, Jr., 29 the accused surrendered to the authorities after more than one year from the incident in order to disclaim responsibility for the killing of the victim. The Court refused to mitigate the accused's liability because there was no acknowledgment of the commission of the crime or the intention to save the government the trouble and expense in his search and capture; and there was a pending warrant for his arrest.

Certainly, we cannot apply the same conclusion to the instant case. Cagas is not applicable because the accused therein did not surrender but was caught by the police. In Taraya, the warrant of arrest had, in fact, been issued and was forwarded to the proper authorities for implementation. In Barcino, it was a year after the commission of the crime when the accused went to the police station, not for purposes of acknowledging his culpability, nor to save the government the expense and trouble of looking for and catching him, but actually to deny his culpability.

In this case, it appears that the Information was filed with the RTC on February 24, 2005. On March 1, 2005, the court issued an Order finding probable cause for the accused to stand trial for the crime of bigamy and for the issuance of a warrant of arrest. In the afternoon of the same day, Geren surrendered to the court and filed a motion for reduction of bail. After the accused posted bail, there was no more need for the court to issue the warrant of arrest. 30 TaISDA

The foregoing circumstances clearly show the voluntariness of the surrender. As distinguished from the earlier cases, upon learning that the court had finally determined the presence of probable cause and even before the issuance and implementation of the warrant of arrest, Geren already gave himself up, acknowledging his culpability. This was bolstered by his eventual plea of guilt during the arraignment. Thus, the trial court was correct in appreciating the mitigating circumstance of "voluntary surrender".

We would like to point out that the mere filing of an information and/or the issuance of a warrant of arrest will not automatically make the surrender "involuntary". In People v. Oco, 31 the Court appreciated the mitigating circumstance because immediately upon learning that a warrant for his arrest was issued, and without the same having been served on him, the accused surrendered to the police. Thus, it is clear that notwithstanding the pendency of a warrant for his arrest, the accused may still be entitled to the mitigating circumstance in case he surrenders, depending on the actual facts surrounding the very act of giving himself up.

WHEREFORE, premises considered, the petition is DENIED. The Court of Appeals February 28, 2006 Decision and its May 24, 2006 Resolution in CA-G.R. SP No. 91916 are AFFIRMED.

SO ORDERED.

AGGRAVATING CIRCUMSTANCES

EVIDENT PREMEDITATION

1. G.R. No. 149372 September 11, 2007

RICARDO BACABAC, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O N

CARPIO MORALES, J.:

In the evening of December 23, 1990, Hernani Quidato (the victim) was at a dance hall in Purok 4, San Joaquin, Iloilo City in the company of Eduardo Selibio (Eduardo) and Melchor Selibio (Melchor). And so were Jonathan Bacabac (Jonathan) and Edzel Talanquines (Edzel).1

Jonathan and Edzel left the dance hall. Not long after, the victim and his companions also left and on their way home, they encountered Jonathan and Edzel. It appears that the two groups then and there figured in a misunderstanding.

On his way home, Jesus Delfin Rosadio (Jesus), who was also at the dance hall, noticed a commotion. He soon saw that Melchor was "hugging" Edzel, and later "tying" Jonathan "with his hands." Still later, he saw the victim hit Edzel with a "stick."2 He thus told the victim and his companions that Edzel is the son of Councilor Jose Talanquines, Jr. (Jose), whereupon Eduardo3 told him (Jesus) to go away for they might shoot him. Jesus thus left and proceeded to Edzel's residence to report to his father what he had witnessed. In the meantime, Edzel and Jonathan managed to flee.

The victim and his companions thereafter headed for home in the course of which they met Pat. Ricardo Bacabac (herein petitioner), together with Edzel and Jonathan who are his nephews, and Edzel's father, Jose, his mother, and two sisters at the corner of M.H. Del Pilar and Sto. Domingo Streets. Petitioner and Jose were carrying M-16 armalites, while Jonathan and Edzel were carrying a piece of wood and a revolver, respectively.

Jesus thereupon pointed to the victim and his companions as the ones who had manhandled Jonathan and Edzel. The victim apologized, explaining that he and his companions mistook Jonathan and Edzel for other persons. Jesus blurted out, however, "You are just bragging that you are brave. You are only bullying small children."4Petitioner, at that instant, fired his armalite into the air, while Jose fired his armalite ("as if spraying his rifle from right to left") at the victim and Eduardo, even hitting Jonathan in the thigh as he (Jonathan) "was on the move to strike [the victim] with a piece of wood." Eduardo fell. And so did the victim who was in a kneeling position, and as he was raising his hands in surrender, Jose shot him again.

Meanwhile, Melchor escaped.5

The victim, Eduardo, and Jonathan were brought to the hospital. The victim was pronounced dead on arrival. Eduardo died two hours later.

Post-mortem examination showed that the victim sustained two bullet wounds in the thoraco-abdominal regions and one bullet wound in the extremities, and that he died due to "maceration of the internal organs due to bullet wounds."6 Eduardo sustained two bullet wounds in the thoraco-abdominal region, and died of "hemorrhage due to gunshot wounds."7

Two Informations for Murder were filed with the Regional Trial Court (RTC) of Iloilo City against Jose, Edzel, Jonathan, Jesus, and the herein petitioner. The accusatory portion of the first Information, docketed as Criminal Case No. 35783, reads:

That on or about the 23rd day of December, 1990, in the Municipality of San Joaquin, Province of Ilo-ilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another to better realize their purpose, armed with two (2) M16 [a]rmalite [r]ifles and one (1) nickel-plated revolver of unknown make and caliber, with deliberate intent and decided purpose to kill, with treachery and evident premeditation and without any justifiable cause or motive, did then and there willfully, unlawfully and feloniously assault, attack and shoot one HERNANI QUIDATO with the firearms they were then provided, inflicting upon the latter gunshot wounds on the different parts of his body which caused the immediate and instantaneous death of said Hernani Quidato.

CONTRARY TO LAW.8

The accusatory portion of the second Information, docketed as Criminal Case No. 35784, reads:

That on or about the 23rd day of December, 1990, in the Municipality of San Joaquin, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another to better realize their purpose, armed with two (2) M16 [a]rmalite [r]ifles and one (1) nickel-plated revolver of unknown make and caliber, with deliberate intent and decided purpose to kill, with treachery and evident premeditation and without any justifiable cause or motive, did then and willfully, unlawfully and feloniously assault, attack and shoot one EDUARDO SELIBIO with the firearms they were then provided inflicting upon the latter gunshot wounds on the different parts of his body which caused the immediate and instantaneous death of said Eduardo Selibio.

CONTRARY TO LAW.9

The cases were jointly tried.

By Decision of April 30, 1993, Branch 39 of the Iloilo RTC, finding the presence of conspiracy among petitioner and his co-accused,10 convicted them of murder qualified by treachery.11 The dispositive portion of the decision of the trial court reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

In Criminal Case No. 35783, all the accused, namely; Jose Talanquines, Jr., Edzel Talanquines, Jonathan Bacabac, Pat. Ricardo Bacabac, and Jesus Delfin Rosadio are hereby found guilty beyond reasonable doubt of the crime of murder and there being no aggravating circumstances with one mitigating circumstance [immediate vindication for Jose and Jesus; voluntary surrender for Pat. Ricardo Bacabac 12 ], and applying the indeterminate sentence law, accused Jose Talanquines, Jr., Ricardo Bacabac and Jesus Delfin Rosadio are hereby sentenced each to suffer imprisonment for a period of 10 years and 1 day, as minimum, to 17 years, 4 months and 1 day as maximum; while accused Edzel Talanquines and Jonathan Bacabac who are entitled to the privileged mitigating circumstance of minority and the ordinary mitigating circumstance of immediate vindication of a grave offense are hereby sentenced each to suffer imprisonment for a period of four (4) years, 2 months, and 1 day, as minimum, to 10 years and 1 day as maximum. All the accused are ordered to pay jointly and severally the heirs of the deceased Hernani Quidato, the amount ofP50,000.00 for his wrongful death; P20,000.00 for moral damages; P10,000.00 for attorneys fees; and the costs of the suit. (Underscoring supplied)

In Criminal Case No. 35784, judgment is hereby rendered as follows:

All the accused, namely; Jose Talanquines, Jr., Edzel Talanquines, Jonathan Bacabac, Pat. Ricardo Bacabac and Jesus Delfin Rosadio are hereby found guilty of the crime of Murder and there being no aggravating circumstance with one mitigating circumstance, accused Jose Talanquines, Jr., Ricardo Bacabac and Jesus Delfin Rosadio are hereby sentenced each to suffer imprisonment for a period of 10 years and 1 day as minimum, to 17 years, 4 months and 1 day, as maximum; while accused Edzel Talanquines and Jonathan Bacabac who are entitled to the privileged mitigating circumstance of minority and the ordinary mitigating circumstance of immediate vindication of a grave offense, are hereby sentenced to suffer imprisonment for a period of 4 years, 2 months and 1 day, as minimum to 10 years and 1 day as maximum. All the accused are ordered to pay jointly and severally the heirs of the deceased Eduardo Selibio, the amount of P50,000.000 for his wrongful death; P20,000.00 for moral damages; P10,000.00 for attorney's fees; and the costs of the suit. (Underscoring supplied)

Accused Jesus Delfin Rosadio, who is detained, is hereby credited with the number of days he spent under detention, if he is qualified.

SO ORDERED.13

While petitioner and his co-accused filed a Notice of Appeal14 which was given due course,15 only petitioner filed a Brief, albeit beyond the extensions granted to him, drawing the Court of Appeals to dismiss his appeal.16 The conviction of petitioner's co-accused had thus become final and executory.

Petitioner's Motion for Reconsideration17 of the dismissal of his appeal having been denied,18 he filed a Petition for Review with this Court which, by Resolution of October 22, 1997, directed the Court of Appeals to reinstate petitioner's appeal.19

By Decision20 of June 28, 1999, the Court of Appeals affirmed the trial court's decision. Entry of final judgment was made by the Court of Appeals on July 22, 1999.21

The trial court thereafter issued a February 7, 2000 Order directing the issuance of warrants for the arrest of the accused.22 Except petitioner, all were arrested.23

On February 24, 2000, petitioner filed before the appellate court a Petition for Relief from Judgment, Order, and/or Denial of Appeal24 which was granted,25 hence, the Entry of Judgment issued by the appellate court on July 22, 1999 was set aside. He thereafter filed a Motion for Reconsideration26 of the appellate court's June 28, 1999 Decision which was denied by Resolution of August 8, 2001;27 hence, the present Petition for Review on Certiorari.28

Petitioner assails the Court of Appeals' decision as follows:

First: Contrary to its conclusion on the basis of the facts of the case, Petitioner may not be deemed to be in conspiracy with the other Accused.

Second: Contrary to its conclusion, there was no treachery.

Third: Contrary to its conclusion, Petitioner, assuming in gratis argumenti the correctness of the pronouncement of guilt, should have been credited with the mitigating circumstance of immediate vindication of a grave offense, in the same manner that the other Accused were so credited.

Fourth: Contrary to its conclusion, the guilt of the Petitioner has not been proved beyond reasonable doubt; hence, by the equipoise rule, should have been acquitted.

Fifth: Contrary to its conclusion, Petitioner is not civilly liable.29 (Emphasis in the original)

The Court notes that the first, second, and fifth arguments of petitioner were, in the main, raised before the appellate court.30

During the pendency of the present petition, petitioner, through counsel, filed before the trial court an "Urgent Ex Parte Alternative Motions (Re: Pat. Ricardo Bacabac's Motion for Reconsideration and/or to Vacate the Order dated February 7, 2000 [directing the arrest of the accused] and to Recall the Warrant of Arrest Dated the Same Date in so far as the Accused Pat. Ricardo Bacabac Only is Concerned)."31 The trial court denied32 the motion as it did deny33 petitioner's motion for reconsideration,34 drawing petitioner to file before this Court on October 5, 2006 a "Motion to Vacate Order for the Arrest of the Accused and the Warrant of Arrest Issued by the Regional Trial Court (Branch 39) of Iloilo City."35

In his "Motion to Vacate Order for the Arrest of the Accused and the Warrant of Arrest Issued by the Regional Trial Court . . . ," petitioner argues that

[T]he basis of the RTC's Order of February 7, 2000 was the Entry of Judgment by the Court of Appealsdated 25 November 1999.36 BUT THE SAID ENTRY OF JUDGMENT was ALREADY VACATED and SET-ASIDE BY THE COURT OF APPEALS ITSELF ON ITS RESOLUTION DATED 13 DECEMBER 2000.Therefore, the RTC's Order of 7 February 2000 was ipso facto vacated.37 (Emphasis in the original)

and that

[T]he second sentence of Section 7, Rule 65 of the Rules of Court cited by the Order of 13 July 2006 doesnot apply to the case at bench because the main case on the merits which originated in the RTC as Criminal Cases Nos. 35783-84, went to the Court of Appeals as CA-G.R. No. 16348 and is now pending in the Supreme Court (Third Division) as G.R. No. 149372 because of the Petition for Review On Certiorarifiled by Movant herein x x x. THE MAIN CASE IS NO LONGER PENDING IN THIS HONORABLE COURT [sic]. THEREFORE, THE RTC HAS NO JURISDICTION TO REITERATE AND EXECUTE THE ORDER OF 7 FEBRUARY 2000.38 (Emphasis in the original)

As this Court hereby affirms petitioner's conviction, resolution of his "Motion to Vacate . . ." is rendered unnecessary.

Petitioner, denying the presence of conspiracy on his part, argues:

[The petitioner] affirms that he was at the scene of the incident and merely fired a warning shot into the air to respond to a public disturbance, and his firing a warning shot into the air was intended to avert further acts of violence; both circumstances, therefore, being merely and solely in pursuance to his avowed duty to keep peace and order in the community and clearly not to be part of any alleged community of design to kill the victims.

x x x x

Another indication that there was no unity of purpose and of execution in so far as the Petitioner is concerned is his conduct after Jose Talanquines, Jr. shot the victims. Eyewitness accounts state that after that lone warning shot, closely followed by Jose Talanquines, Jr. firing at the victims, the petitioner merely stood there and did nothing and said nothing.

This is obviously because he was himself stunned by the fast happening of events. The investigating police officer, PO3 NESTOR SANTACERA, on rebuttal, likewise, admitted to the facts that ten (10) minutes after the incident, they (the police) responded and upon arrival thereat, learned that the Petitioner already reported the incident to their station and that it was thePetitioner who first reported the shooting incident officially to their office. The aforedescribed provenconduct of the Petitioner during and immediately after the incident in question are, Petitioner respectfully submits, inconsistent with what a co-conspirators is [sic] wont to do under the circumstances. It is submitted instead that his conduct on the contrary underscores the lack or want of community of purpose and interest in the killing incident to make him criminally liable under the conspiracy theory.

Finally, in connection with the conspiracy theory and anent the finding below that the Petitioner and his Co-Accused waited for the victims' arrival at the corner of St. Domingo and M.H. del Pilar Streets, it is asserted that the same runs counter to the natural and ordinary experience of things and event [sic], and raises a cloud of doubt over the correctness of the lower Courts decision which are based on the Prosecution's version of the incident. Since, according to the prosecution, the Petitioner and the other Accused were armed with high-powered firearms (armalite rifles and revolver); they waited at the statedstreet corner for thirty (30) minutes; the stated street corner was well lighted; accompanying them were thewife and two (2) young daughters of Jose Talanquines, Jr; and they stood there conversing with the group of Elston Saquian [a prosecution witness who testified that he saw the petitioner and his co-accused waiting for the victims39 and admitting that they were waiting for certain persons who mauled Edzel Talanquines and Jonathan Bacabac.

In other words, the lower Courts gave credence to an improbable scenario painting the Petitioner, known to the place as a police officer, and co-accused to have recklessly and uncaringly displayed, for all and sundry to see, their alleged criminal intentions. It would indeed be the height of foolishness for them to be by a well lighted street corner, perhaps even well traversed, conspicuously fully armed, waiting for persons who were not even sure would pass by such place, and apparently willing to admit to other passers-by that they were indeed waiting for the persons who mauled Edzel and Jonathan, and consequently give out the impression that they were intending to retaliate – which is what the lower Courts regrettably observed.

x x x x

Likewise, the presence of the wife and two (2) young daughters of the accused Jose Talanquines, Jr. at the scene of the alleged crimes, as testified to by the prosecution witnesses and believed by the lower Courts, assumes importance in the matter of determining which version of the incident is correct.

The Prosecution places the wife and the daughters with the alleged fully armed Petitioner and Co-Accused at Sto. Domingo Streets, also waiting during the same length of time as the men for the (probable) arrival of the group of the victims. But such a scenario is, likewise, unnatural. Because, will the male relatives unhesitatingly expose their defenseless womenfolk to imminent danger? 40 (Citations omitted, emphasis in the original, and underscoring supplied)

Petitioner's argument that it is improbable for him and his co-accused to have waited for the victims at a well-lighted street corner does not persuade. Crimes are known to have been brazenly committed by perpetrators, undeterred by the presence of onlookers or even of peace officers, completely impervious of the inevitability of criminal prosecution and conviction.41

From the mode and manner in which the crimes were perpetrated, the conduct of petitioner before, during, and after their commission,42 and the conditions attendant thereto,43 conspiracy, which need not be proved by direct evidence, is deduced.44 Petitioner's firing of his armalite could not have amounted to none other than lending moral assistance to his co-accused, thereby indicating the presence of conspiracy.45

As the appellate court observed which is quoted with approval:

In the present recourse, when informed that Jonathan and Edzel were being manhandled and assaulted by male persons, Appellant armed himself with an M-16 armalite. Jose Talanquines, Jr., the father of Edzel, followed suit and armed himself with an M-16 armalite gun. Jesus armed himself with a revolver while Jonathan armed himself with a piece of wood. Jonathan and Edzel were nephews of the Appellant who resided in the house of Jose Talanquines, Jr. All the Accused including the Appellant then proceeded posthaste to the corner of M.H. del Pilar corner Sto. Domingo Streets where the culprits would pass by and waited for the advent of the culprits. Even as Hernani apologized for his and his companions' assault of Edzel and Jonathan, Jesus berated Hernani and his companions. Almost simultaneously, the Appellant fired his gun into the air as Jonathan lunged at Hernani and his companions to hit them with the piece of

wood. Almost simultaneously, Jose Talaquines, Jr. fired his gun at Hernani and shot Eduardo hitting them and, in the process, hitting his nephew, Jonathan Bacabac. The Appellant did not lift a finger when Jose fired at and shot Hernani and Eduardo. He stood by as Jose shot Hernani anew when the latter on bended knees, raised his two (2) hands, in surrender. The Appellant and the other Accused then fled from the scene, with their respective firearms and weapons. The overt act of the Accused and the Appellant in conjunto, constitute proof of conspiracy.

The Appellant and Jose were armed with high-powered guns. Jesus was armed with a revolver. The nature of the weapons of the Accused evinced a common desire to do away with the culprits, not merely to scare them.

What is outrageous is that the Appellant was a policeman. He could very well have just arrested the culprits as they sauntered by and brought them to the police station for the requisite investigation and the institution of criminal complaints, if warranted. He could have dissuaded Jose and Jesus and assured them that the culprits will be duly investigated and charged if warranted. The Appellant did not. He armed himself with an M-16 armalite x x x. [T]he three (3) positioned themselves at the corner of M.H. del Pilar and Sto. Domingo Streets for the culprits to arrive. Hernani and his companions were doomed. It may be true that the Appellant did not aim his gun at the deceased but the same is peu de chose. By his overt acts, in unison with the other Accused and his kinship with Jonathan and Edzel, We are convinced that he conspired with Jose Talanquines, Jr. and the other Accused to achieve a common purpose to kill Hernani and Eduardo.46 (Emphasis and underscoring supplied)

Petitioner's failure to assist the victims after the shooting reinforces this Court's appreciation of community of design between him and his co-accused to harm the victims. That it was he who first officially reported the shooting to the police station47 does not make him any less a conspirator. Voluntary surrender and non-flight do not conclusively prove innocence.48 Besides, a conspirator who wants to extricate himself from criminal liability usually performs an overt act to dissociate or detach himself from the unlawful plan to commit the felony while the commission of the felony is in progress.49 In petitioner's case, he reported the shooting incident after it had already taken place. In legal contemplation, there was no longer a conspiracy to be repudiated since it had already materialized.50

Contrary to petitioner's assertion,51 the appellate court did not err in appreciating the presence of conspiracy despite its finding that there was no evident premeditation. This Court's pronouncement that conspiracy presupposes the existence of evident premeditation52 does not necessarily imply that the converse ─ that evident premeditation presupposes the existence of a conspiracy ─ is true. In any event, a link between conspiracy and evident premeditation is presumed only where the conspiracy is directly established and not where conspiracy is only implied, as in the present case.53

Neither did the appellate court err in finding the presence of treachery. Treachery, under Article 14, paragraph 16 of the Revised Penal Code, is present "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."

What is decisive in treachery is that "the attack was executed in such a manner as to make it impossible for the victim to retaliate."54 In the case at bar, petitioner, a policeman, and his co-accused were armed with two M-16 armalites and a revolver. The victim and his companions were not armed.55 The attack was sudden and unexpected,56 and the victim was already kneeling in surrender when he was shot the second time. Clearly, the victim and his companion Eduardo had no chance to defend themselves or retaliate.

Petitioner nevertheless argues that he not being the trigger man, it is not logical nor legal to hold him guilty of treachery.57 This argument falls in the face of the settled doctrine that once conspiracy is established, the act of one is the act of all even if not all actually hit and killed the victim.58

As for petitioner's invocation of the mitigating circumstance of "immediate vindication of a grave offense," it fails. For such mitigating circumstance to be credited, the act should be, following Article 13, paragraph 5 of the Revised Penal Code, "committed in the immediate vindication of a grave offense to the one committing the felony (delito), his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, orrelatives by affinity within the same degree . "59 The offense committed on Edzel was "hitting" his ear with astick 60 (according to Jesus), a bamboo pole (according to Edzel).61 By Edzel's own clarification, "[he] was hit at [his] ear, not on [his] head."62 That act would certainly not be classified as "grave offense." And Edzel is petitioner's nephew, hence, not a relative by affinity "within the same degree" contemplated in Article 13, paragraph 5 of the Revised Penal Code.

WHEREFORE, the petition is DISMISSED and the appellate court's decision is AFFIRMED.

Costs against petitioner.

SO ORDERED.

2. G.R. No. 149372 September 11, 2007

RICARDO BACABAC, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O N

CARPIO MORALES, J.:

In the evening of December 23, 1990, Hernani Quidato (the victim) was at a dance hall in Purok 4, San Joaquin, Iloilo City in the company of Eduardo Selibio (Eduardo) and Melchor Selibio (Melchor). And so were Jonathan Bacabac (Jonathan) and Edzel Talanquines (Edzel).1

Jonathan and Edzel left the dance hall. Not long after, the victim and his companions also left and on their way home, they encountered Jonathan and Edzel. It appears that the two groups then and there figured in a misunderstanding.

On his way home, Jesus Delfin Rosadio (Jesus), who was also at the dance hall, noticed a commotion. He soon saw that Melchor was "hugging" Edzel, and later "tying" Jonathan "with his hands." Still later, he saw the victim hit Edzel with a "stick."2 He thus told the victim and his companions that Edzel is the son of Councilor Jose Talanquines, Jr. (Jose), whereupon Eduardo3 told him (Jesus) to go away for they might shoot him. Jesus thus left and proceeded to Edzel's residence to report to his father what he had witnessed. In the meantime, Edzel and Jonathan managed to flee.

The victim and his companions thereafter headed for home in the course of which they met Pat. Ricardo Bacabac (herein petitioner), together with Edzel and Jonathan who are his nephews, and Edzel's father, Jose, his mother, and two sisters at the corner of M.H. Del Pilar and Sto. Domingo Streets. Petitioner and Jose were carrying M-16 armalites, while Jonathan and Edzel were carrying a piece of wood and a revolver, respectively.

Jesus thereupon pointed to the victim and his companions as the ones who had manhandled Jonathan and Edzel. The victim apologized, explaining that he and his companions mistook Jonathan and Edzel for other persons. Jesus blurted out, however, "You are just bragging that you are brave. You are only bullying small children."4Petitioner, at that instant, fired his armalite into the air, while Jose fired his armalite ("as if spraying his rifle from right to left") at the victim and Eduardo, even hitting Jonathan in the thigh as he (Jonathan) "was on the move to strike [the victim] with a piece of wood." Eduardo fell. And so did the victim who was in a kneeling position, and as he was raising his hands in surrender, Jose shot him again.

Meanwhile, Melchor escaped.5

The victim, Eduardo, and Jonathan were brought to the hospital. The victim was pronounced dead on arrival. Eduardo died two hours later.

Post-mortem examination showed that the victim sustained two bullet wounds in the thoraco-abdominal regions and one bullet wound in the extremities, and that he died due to "maceration of the internal organs due to bullet wounds."6 Eduardo sustained two bullet wounds in the thoraco-abdominal region, and died of "hemorrhage due to gunshot wounds."7

Two Informations for Murder were filed with the Regional Trial Court (RTC) of Iloilo City against Jose, Edzel, Jonathan, Jesus, and the herein petitioner. The accusatory portion of the first Information, docketed as Criminal Case No. 35783, reads:

That on or about the 23rd day of December, 1990, in the Municipality of San Joaquin, Province of Ilo-ilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another to better realize their purpose, armed with two (2) M16 [a]rmalite [r]ifles and one (1) nickel-plated revolver of unknown make and caliber, with deliberate intent and decided purpose to kill, with treachery and evident premeditation and without any justifiable cause or motive, did then and there willfully, unlawfully and feloniously assault, attack and shoot one HERNANI QUIDATO with the firearms they were then provided, inflicting upon the latter gunshot wounds on the different parts of his body which caused the immediate and instantaneous death of said Hernani Quidato.

CONTRARY TO LAW.8

The accusatory portion of the second Information, docketed as Criminal Case No. 35784, reads:

That on or about the 23rd day of December, 1990, in the Municipality of San Joaquin, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another to better realize their purpose, armed with two (2) M16 [a]rmalite [r]ifles and one (1) nickel-plated revolver of unknown make and caliber, with deliberate intent and decided purpose to kill, with treachery and evident premeditation and without any justifiable cause or motive, did then and willfully, unlawfully and feloniously assault, attack and shoot one EDUARDO SELIBIO with the firearms they were then provided inflicting upon the latter gunshot wounds on the different parts of his body which caused the immediate and instantaneous death of said Eduardo Selibio.

CONTRARY TO LAW.9

The cases were jointly tried.

By Decision of April 30, 1993, Branch 39 of the Iloilo RTC, finding the presence of conspiracy among petitioner and his co-accused,10 convicted them of murder qualified by treachery.11 The dispositive portion of the decision of the trial court reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

In Criminal Case No. 35783, all the accused, namely; Jose Talanquines, Jr., Edzel Talanquines, Jonathan Bacabac, Pat. Ricardo Bacabac, and Jesus Delfin Rosadio are hereby found guilty beyond reasonable doubt of the crime of murder and there being no aggravating circumstances with one mitigating circumstance [immediate vindication for Jose and Jesus; voluntary surrender for Pat. Ricardo Bacabac 12 ], and applying the indeterminate sentence law, accused Jose Talanquines, Jr., Ricardo Bacabac and Jesus Delfin Rosadio are hereby sentenced each to suffer imprisonment for a period of 10 years and 1 day, as minimum, to 17 years, 4 months and 1 day as maximum; while accused Edzel Talanquines and Jonathan Bacabac who are entitled to the privileged mitigating circumstance of minority and the ordinary mitigating circumstance of immediate vindication of a grave offense are hereby sentenced each to suffer imprisonment for a period of four (4) years, 2 months, and 1 day, as minimum, to 10 years and 1 day as maximum. All the accused are ordered to pay jointly and severally the heirs of the deceased Hernani Quidato, the amount ofP50,000.00 for his wrongful death; P20,000.00 for moral damages; P10,000.00 for attorneys fees; and the costs of the suit. (Underscoring supplied)

In Criminal Case No. 35784, judgment is hereby rendered as follows:

All the accused, namely; Jose Talanquines, Jr., Edzel Talanquines, Jonathan Bacabac, Pat. Ricardo Bacabac and Jesus Delfin Rosadio are hereby found guilty of the crime of Murder and there being no aggravating circumstance with one mitigating circumstance, accused Jose Talanquines, Jr., Ricardo Bacabac and Jesus Delfin Rosadio are hereby sentenced each to suffer imprisonment for a period of 10 years and 1 day as minimum, to 17 years, 4 months and 1 day, as maximum; while accused Edzel Talanquines and Jonathan Bacabac who are entitled to the privileged mitigating circumstance of minority and the ordinary mitigating circumstance of immediate vindication of a grave offense, are hereby sentenced to suffer imprisonment for a period of 4 years, 2 months and 1 day, as minimum to 10 years and 1 day as maximum. All the accused are ordered to pay jointly and severally the heirs of the deceased Eduardo Selibio, the amount of P50,000.000 for his wrongful death; P20,000.00 for moral damages; P10,000.00 for attorney's fees; and the costs of the suit. (Underscoring supplied)

Accused Jesus Delfin Rosadio, who is detained, is hereby credited with the number of days he spent under detention, if he is qualified.

SO ORDERED.13

While petitioner and his co-accused filed a Notice of Appeal14 which was given due course,15 only petitioner filed a Brief, albeit beyond the extensions granted to him, drawing the Court of Appeals to dismiss his appeal.16 The conviction of petitioner's co-accused had thus become final and executory.

Petitioner's Motion for Reconsideration17 of the dismissal of his appeal having been denied,18 he filed a Petition for Review with this Court which, by Resolution of October 22, 1997, directed the Court of Appeals to reinstate petitioner's appeal.19

By Decision20 of June 28, 1999, the Court of Appeals affirmed the trial court's decision. Entry of final judgment was made by the Court of Appeals on July 22, 1999.21

The trial court thereafter issued a February 7, 2000 Order directing the issuance of warrants for the arrest of the accused.22 Except petitioner, all were arrested.23

On February 24, 2000, petitioner filed before the appellate court a Petition for Relief from Judgment, Order, and/or Denial of Appeal24 which was granted,25 hence, the Entry of Judgment issued by the appellate court on July 22, 1999 was set aside. He thereafter filed a Motion for Reconsideration26 of the appellate court's June 28, 1999 Decision which was denied by Resolution of August 8, 2001;27 hence, the present Petition for Review on Certiorari.28

Petitioner assails the Court of Appeals' decision as follows:

First: Contrary to its conclusion on the basis of the facts of the case, Petitioner may not be deemed to be in conspiracy with the other Accused.

Second: Contrary to its conclusion, there was no treachery.

Third: Contrary to its conclusion, Petitioner, assuming in gratis argumenti the correctness of the pronouncement of guilt, should have been credited with the mitigating circumstance of immediate vindication of a grave offense, in the same manner that the other Accused were so credited.

Fourth: Contrary to its conclusion, the guilt of the Petitioner has not been proved beyond reasonable doubt; hence, by the equipoise rule, should have been acquitted.

Fifth: Contrary to its conclusion, Petitioner is not civilly liable.29 (Emphasis in the original)

The Court notes that the first, second, and fifth arguments of petitioner were, in the main, raised before the appellate court.30

During the pendency of the present petition, petitioner, through counsel, filed before the trial court an "Urgent Ex Parte Alternative Motions (Re: Pat. Ricardo Bacabac's Motion for Reconsideration and/or to Vacate the Order dated February 7, 2000 [directing the arrest of the accused] and to Recall the Warrant of Arrest Dated the Same Date in so far as the Accused Pat. Ricardo Bacabac Only is Concerned)."31 The trial court denied32 the motion as it did deny33 petitioner's motion for reconsideration,34 drawing petitioner to file before this Court on October 5, 2006 a "Motion to Vacate Order for the Arrest of the Accused and the Warrant of Arrest Issued by the Regional Trial Court (Branch 39) of Iloilo City."35

In his "Motion to Vacate Order for the Arrest of the Accused and the Warrant of Arrest Issued by the Regional Trial Court . . . ," petitioner argues that

[T]he basis of the RTC's Order of February 7, 2000 was the Entry of Judgment by the Court of Appealsdated 25 November 1999.36 BUT THE SAID ENTRY OF JUDGMENT was ALREADY VACATED and SET-ASIDE BY THE COURT OF APPEALS ITSELF ON ITS RESOLUTION DATED 13 DECEMBER 2000.Therefore, the RTC's Order of 7 February 2000 was ipso facto vacated.37 (Emphasis in the original)

and that

[T]he second sentence of Section 7, Rule 65 of the Rules of Court cited by the Order of 13 July 2006 doesnot apply to the case at bench because the main case on the merits which originated in the RTC as Criminal Cases Nos. 35783-84, went to the Court of Appeals as CA-G.R. No. 16348 and is now pending in the Supreme Court (Third Division) as G.R. No. 149372 because of the Petition for Review On Certiorarifiled by Movant herein x x x. THE MAIN CASE IS NO LONGER PENDING IN THIS HONORABLE COURT [sic]. THEREFORE, THE RTC HAS NO JURISDICTION TO REITERATE AND EXECUTE THE ORDER OF 7 FEBRUARY 2000.38 (Emphasis in the original)

As this Court hereby affirms petitioner's conviction, resolution of his "Motion to Vacate . . ." is rendered unnecessary.

Petitioner, denying the presence of conspiracy on his part, argues:

[The petitioner] affirms that he was at the scene of the incident and merely fired a warning shot into the air to respond to a public disturbance, and his firing a warning shot into the air was intended to avert further acts of violence; both circumstances, therefore, being merely and solely in pursuance to his avowed duty to keep peace and order in the community and clearly not to be part of any alleged community of design to kill the victims.

x x x x

Another indication that there was no unity of purpose and of execution in so far as the Petitioner is concerned is his conduct after Jose Talanquines, Jr. shot the victims. Eyewitness accounts state that after that lone warning shot, closely followed by Jose Talanquines, Jr. firing at the victims, the petitioner merely stood there and did nothing and said nothing. This is obviously because he was himself stunned by the fast happening of events. The investigating police officer, PO3 NESTOR SANTACERA, on rebuttal, likewise, admitted to the facts that ten (10) minutes after the incident, they (the police) responded and upon arrival thereat, learned that the Petitioner already reported the incident to their station and that it was thePetitioner who first reported the shooting incident officially to their office. The aforedescribed provenconduct of the Petitioner during and immediately after the incident in question are, Petitioner respectfully submits, inconsistent with what a co-conspirators is [sic] wont to do under the circumstances. It is submitted instead that his conduct on the contrary underscores the lack or want of community of purpose and interest in the killing incident to make him criminally liable under the conspiracy theory.

Finally, in connection with the conspiracy theory and anent the finding below that the Petitioner and his Co-Accused waited for the victims' arrival at the corner of St. Domingo and M.H. del Pilar Streets, it is asserted that the same runs counter to the natural and ordinary experience of things and event [sic], and raises a cloud of doubt over the correctness of the lower Courts decision which are based on the Prosecution's version of the incident. Since, according to the prosecution, the Petitioner and the other Accused were armed with high-powered firearms (armalite rifles and revolver); they waited at the statedstreet corner for thirty (30) minutes; the stated street corner was well lighted; accompanying them were thewife and two (2) young daughters of Jose Talanquines, Jr; and they stood there conversing with the group of Elston Saquian [a prosecution witness who testified that he saw the petitioner and his co-accused waiting for the victims39 and admitting that they were waiting for certain persons who mauled Edzel Talanquines and Jonathan Bacabac.

In other words, the lower Courts gave credence to an improbable scenario painting the Petitioner, known to the place as a police officer, and co-accused to have recklessly and uncaringly displayed, for all and sundry to see, their alleged criminal intentions. It would indeed be the height of foolishness for them to be by a well lighted street corner, perhaps even well traversed, conspicuously fully armed, waiting for persons who were not even sure would pass by such place, and apparently willing to admit to other passers-by that they were indeed waiting for the persons who mauled Edzel and Jonathan, and consequently give out the impression that they were intending to retaliate – which is what the lower Courts regrettably observed.

x x x x

Likewise, the presence of the wife and two (2) young daughters of the accused Jose Talanquines, Jr. at the scene of the alleged crimes, as testified to by the prosecution witnesses and believed by the lower Courts, assumes importance in the matter of determining which version of the incident is correct.

The Prosecution places the wife and the daughters with the alleged fully armed Petitioner and Co-Accused at Sto. Domingo Streets, also waiting during the same length of time as the men for the (probable) arrival of the group of the victims. But

such a scenario is, likewise, unnatural. Because, will the male relatives unhesitatingly expose their defenseless womenfolk to imminent danger? 40 (Citations omitted, emphasis in the original, and underscoring supplied)

Petitioner's argument that it is improbable for him and his co-accused to have waited for the victims at a well-lighted street corner does not persuade. Crimes are known to have been brazenly committed by perpetrators, undeterred by the presence of onlookers or even of peace officers, completely impervious of the inevitability of criminal prosecution and conviction.41

From the mode and manner in which the crimes were perpetrated, the conduct of petitioner before, during, and after their commission,42 and the conditions attendant thereto,43 conspiracy, which need not be proved by direct evidence, is deduced.44 Petitioner's firing of his armalite could not have amounted to none other than lending moral assistance to his co-accused, thereby indicating the presence of conspiracy.45

As the appellate court observed which is quoted with approval:

In the present recourse, when informed that Jonathan and Edzel were being manhandled and assaulted by male persons, Appellant armed himself with an M-16 armalite. Jose Talanquines, Jr., the father of Edzel, followed suit and armed himself with an M-16 armalite gun. Jesus armed himself with a revolver while Jonathan armed himself with a piece of wood. Jonathan and Edzel were nephews of the Appellant who resided in the house of Jose Talanquines, Jr. All the Accused including the Appellant then proceeded posthaste to the corner of M.H. del Pilar corner Sto. Domingo Streets where the culprits would pass by and waited for the advent of the culprits. Even as Hernani apologized for his and his companions' assault of Edzel and Jonathan, Jesus berated Hernani and his companions. Almost simultaneously, the Appellant fired his gun into the air as Jonathan lunged at Hernani and his companions to hit them with the piece of wood. Almost simultaneously, Jose Talaquines, Jr. fired his gun at Hernani and shot Eduardo hitting them and, in the process, hitting his nephew, Jonathan Bacabac. The Appellant did not lift a finger when Jose fired at and shot Hernani and Eduardo. He stood by as Jose shot Hernani anew when the latter on bended knees, raised his two (2) hands, in surrender. The Appellant and the other Accused then fled from the scene, with their respective firearms and weapons. The overt act of the Accused and the Appellant in conjunto, constitute proof of conspiracy.

The Appellant and Jose were armed with high-powered guns. Jesus was armed with a revolver. The nature of the weapons of the Accused evinced a common desire to do away with the culprits, not merely to scare them.

What is outrageous is that the Appellant was a policeman. He could very well have just arrested the culprits as they sauntered by and brought them to the police station for the requisite investigation and the institution of criminal complaints, if warranted. He could have dissuaded Jose and Jesus and assured them that the culprits will be duly investigated and charged if warranted. The Appellant did not. He armed himself with an M-16 armalite x x x. [T]he three (3) positioned themselves at the corner of M.H. del Pilar and Sto. Domingo Streets for the culprits to arrive. Hernani and his companions were doomed. It may be true that the Appellant did not aim his gun at the deceased but the same is peu de chose. By his overt acts, in unison with the other Accused and his kinship with Jonathan and Edzel, We are convinced that he conspired with Jose Talanquines, Jr. and the other Accused to achieve a common purpose to kill Hernani and Eduardo.46 (Emphasis and underscoring supplied)

Petitioner's failure to assist the victims after the shooting reinforces this Court's appreciation of community of design between him and his co-accused to harm the victims. That it was he who first officially reported the shooting to the police station47 does not make him any less a conspirator. Voluntary surrender and non-flight do not conclusively prove innocence.48 Besides, a conspirator who wants to extricate himself from criminal liability usually performs an overt act to dissociate or detach himself from the unlawful plan to commit the felony while the commission of the felony is in progress.49 In petitioner's case, he reported the shooting incident after it had already taken place. In legal contemplation, there was no longer a conspiracy to be repudiated since it had already materialized.50

Contrary to petitioner's assertion,51 the appellate court did not err in appreciating the presence of conspiracy despite its finding that there was no evident premeditation. This Court's pronouncement that conspiracy presupposes the existence of evident premeditation52 does not necessarily imply that the converse ─ that evident premeditation presupposes the existence of a conspiracy ─ is true. In any event, a link between conspiracy and evident premeditation is presumed only where the conspiracy is directly established and not where conspiracy is only implied, as in the present case.53

Neither did the appellate court err in finding the presence of treachery. Treachery, under Article 14, paragraph 16 of the Revised Penal Code, is present "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."

What is decisive in treachery is that "the attack was executed in such a manner as to make it impossible for the victim to retaliate."54 In the case at bar, petitioner, a policeman, and his co-accused were armed with two M-16 armalites and a revolver. The victim and his companions were not armed.55 The attack was sudden and unexpected,56 and the victim was already kneeling in surrender when he was shot the second time. Clearly, the victim and his companion Eduardo had no chance to defend themselves or retaliate.

Petitioner nevertheless argues that he not being the trigger man, it is not logical nor legal to hold him guilty of treachery.57 This argument falls in the face of the settled doctrine that once conspiracy is established, the act of one is the act of all even if not all actually hit and killed the victim.58

As for petitioner's invocation of the mitigating circumstance of "immediate vindication of a grave offense," it fails. For such mitigating circumstance to be credited, the act should be, following Article 13, paragraph 5 of the Revised Penal Code, "committed in the immediate vindication of a grave offense to the one committing the felony (delito), his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, orrelatives by affinity within the same degree . "59 The offense committed on Edzel was "hitting" his ear with astick 60 (according to Jesus), a bamboo pole (according to Edzel).61 By Edzel's own clarification, "[he] was hit at [his] ear, not on [his] head."62 That act would certainly not be classified as "grave offense." And Edzel is petitioner's nephew, hence, not a relative by affinity "within the same degree" contemplated in Article 13, paragraph 5 of the Revised Penal Code.

WHEREFORE, the petition is DISMISSED and the appellate court's decision is AFFIRMED.

Costs against petitioner.

SO ORDERED.