G.R. No.

186538               November 25, 2009 Cayago (Dr. Cayago). While in the hospital, Pedro
mentioned to his wife, Luz, the names Molong, Seksek
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, and Lote as his assailants. Later, Pedro died due to the
vs. stab wound, which penetrated his intestine and blood
AUSENCIO COMILLO, JR., LUTGARDO vessel. Appellants were then charged with and arrested
COMILLO and ROMULO ALTAR, Accused- for the killing of Pedro.6
Appellants.
JoselitoBojocan (Joselito) and Marcos Borac (Marcos)
FACTS: witnessed the stabbing incident. Joselito was standing
near a barbecue stall along Escola Street when he saw the
gruesome act. He was six meters away from Pedro and
On 14 March 2000, an information3 was filed with the appellants when the incident occurred. He was one of
RTC charging appellants with murder. The accusatory those who rushed Pedro to the hospital after the incident.
portion of the information reads: On the other hand, Marcos was walking along Escalo
Street when he witnessed the felony. He was ten meters
The undersigned accuses AUSENCIO COMILLO JR., away from Pedro and appellants when the crime
ROMULO ALTAR and LUTGARDO COMILLO of transpired. Joselito and Marcos recognized Pedro and
Barangay 11, Llorente, Eastern Samar of the crime of appellants on that tragic night, as the scene was well-
MURDER committed as follows: lighted.7

That on December 18, 1999, at about 8:30 o’clock in the The prosecution also submitted documentary and object
evening at Escalo Street, Barangay 11, Llorente, Eastern evidence to bolster the testimonies of its witnesses, to
Samar, Philippines and within the jurisdiction of this wit: (1) affidavit of JoselitoBojocan (Exhibit A);8 (2)
Honorable Court, the above-named accused armed with affidavit of Marcos Borac (Exhibit B);9 (3) affidavit of
bladed weapons conspiring, confederating, and mutually Luz Barbo (Exhibit C);10 (4) supplemental affidavit of
helping one another and taking advantage of superior Luz Barbo (Exhibit D);11 (5) death certificate of Pedro
strength with intent to kill and with evident Barbo (Exhibit E);12 (6) medical certificate of Pedro
premeditation and treachery did then and there willfully, issued by Dr. Roy Cayago (Exhibit F);13 and (7)
unlawfully and feloniously attack, assault, stab and anatomical sketch pertaining to the location of the stab
wound PEDRO BARBO, which caused the direct death wound in Pedro’s body (Exhibit G).14
of said PEDRO BARBO, to the damage and prejudice of
the heirs of the victim. For its part, the defense adduced the testimonies of
appellants and Irene Torilio to refute the foregoing
When arraigned on 13 December 2001, each of the accusation. No documentary or object evidence was
appellants pleaded "Not guilty" to the charge. 4 Trial on proffered. In denying any liability, appellant Ausencio
the merits thereafter followed. interposed alibi, while appellants Lutgardo and Romulo
invoked self-defense and defense of a stranger,
respectively.
The prosecution presented as witnesses JoselitoBojocan,
Marcos Borac, Luz Barbo, and Dr. Roy C. Cayago. Their
testimonies, woven together, bare the following: Appellant Ausencio testified that on 18 December 1999,
at about 8:30 p.m., he was resting in bed inside his
family’s house located at Escalo Street, Barangay 11,
On 18 December 1999, at about 8:30 p.m., herein victim
Llorente, Eastern Samar, as he was then suffering from
Pedro C. Barbo (Pedro) bought cigarettes from a store
fever. Later that evening, appellant Romulo arrived at the
located on Escalo Street, Barangay 11, Llorente, Eastern
house and picked up some clothes. Romulo disclosed to
Samar. While Pedro was walking on the said street on his
him that the former had injured a person, and, thereafter,
way home, appellant AusencioComillo Jr. (Ausencio),
left the house. Subsequently, on that same night,
the former’s elder brother, appellant LutgardoComillo
appellant Romulo returned to the house with appellant
(Lutgardo), and Romulo Altar (Romulo) approached
Ausencio (his elder brother), appellant Lutgardo, and
Pedro and asked the latter for cigarettes. Pedro gave all
JuaningComillo(mother of appellants Ausencio and
his cigarettes to appellants Ausencio and Lutgardo. As
Lutgardo). Juaning told him that Pedro had made a
regards appellant Romulo, Pedro told him to wait as he
commotion on Escalo Street and brandished a weapon. 15
would buy cigarettes in the nearby store. While Pedro
was walking towards the store, appellant Ausencio
suddenly embraced and held the shoulders of Pedro. At Appellant Lutgardo narrated that on the evening of 18
this juncture, appellants Romulo and Lutgardo went December 1999, he and appellant Romulo strolled along
infront of Pedro. Appellant Romulo then hit Pedro on the Escola Street, searching for houses at which to render
forehead with a ukulele (small guitar). Afterwards, Christmas carols. Appellant Romulo had a ukulele to be
appellant Lutgardo stabbed Pedro on the left part of the used in rendering carols. Pedro appeared from nowhere
stomach. Appellant Ausencio pushed Pedro to the ground and tried to stab appellant Lutgardo with a knife, which
and told the latter, "You can go home now as you have the latter eluded. He and Pedro wrestled for possession of
already been stabbed." Appellants then immediately fled the knife. He shouted for help to appellant Romulo, who
the scene.5 then responded by hitting Pedro with a ukulele.
Appellant Lutgardo then got hold of the knife from Pedro
and stabbed the latter. Later, he threw the knife in a
Subsequently, several persons rushed Pedro to a hospital
nearby school campus.16
where he was examined and treated by Dr. Roy C.
Appellant Romulo narrated that on the evening of 18 As an element of self-defense, unlawful aggression refers
December 1999, he and appellant Lutgardo walked along to an assault or attack, or a threat thereof in an imminent
Escola Street to look for houses where they could render and immediate manner, which places the defendant’s life
Christmas carols. Pedro suddenly approached them and in actual peril. There is an unlawful aggression on the
drew a knife. Pedro tried to stab appellant Lutgardo, but part of the victim when he puts in actual or imminent
the latter evaded it. Pedro and appellant Lutgardo danger the life, limb, or right of the person invoking self-
grappled for possession of the knife. At this point, defense. There must be actual physical force or actual
appellant Lutgardo shouted to appellant Romulo for help. use of a weapon. To constitute unlawful aggression, the
He responded by hitting Pedro with a ukulele on the right person attacked must be confronted by a real threat on
shoulder, which caused the latter to lose grip on the his life and limb; and the peril sought to be avoided must
knife. Appellant Lutgardo then picked up the knife and be imminent and actual, not merely imaginary. 37
stabbed Pedro on the body. Thereafter, he ran away from
the scene.17 In the instant case, there was no unlawful aggression on
the part of Pedro that justified appellant Lutgardo’s act of
Irene Torilio (Irene), friend of Juaning, stated that on 18 stabbing him. There was no actual or imminent danger
December 1999, at about 8:30 p.m., she went to on appellant Lutgardo’s life when he came face to face
Juaning’s house on Escalo Street, to invite her for with Pedro. As narrated by eyewitnesses Joselito and
Christmas carols. Irene saw appellant Ausencio inside Marcos, Pedro was just walking on the road to buy
the said house. While she and Juaning were about to cigarettes and was not provoking appellant Lutgardo into
leave the house, they saw Pedro on Escalo Street a fight. It was appellant Lutgardo who approached and
wielding a weapon and harassing appellants Romulo and stabbed Pedro even when the latter was already held
Lutgardo. Juaning immediately approached appellant around the shoulders by appellant Ausencio and hit with
Lutgardo and escorted the latter inside the house. a ukulele by appellant Romulo. In short, appellant
Appellant Romulo then hit Pedro with a ukulele.18 Lutgardo, as well as appellants Ausencio and Romulo,
were the unlawful aggressors. As earlier stated, we have
After trial, the RTC rendered a Decision convicting found the testimonies of Joselito and Marcos to be
appellants of murder and imposing on each of them the credible, as they testified in a clear and consistent
death penalty. The trial court also ordered appellants to manner during the trial despite grueling cross-
jointly pay the heirs of Pedro civil indemnity in the examination of the defense.
amount of P50,000.00.19 Appellants filed a motion for
reconsideration but this was denied.20 The case was Even if this Court were to adopt appellant Lutgardo’s
elevated to the Court of Appeals. version of the incident, the result or conclusion would be
the same.
On 24 June 2008, the Court of Appeals promulgated its
Decision affirming with modification the RTC Decision. Appellant Lutgardo testified that he and Pedro grappled
The appellate court downgraded the penalty from death for possession of the knife during the incident. He
to reclusion perpetua. Further, in addition to the civil shouted for help to appellant Romulo, who then came to
indemnity of P50,000.00, the appellate court also ordered his aid by hitting Pedro with a ukulele. This enabled
appellants to jointly pay the heirs of Pedro moral appellant Lutgardo to snatch the knife from Pedro and to
damages amounting to P50,000.00 and exemplary eventually stab the latter with it.38 It appears from the
damages in the amount of P25,000.00.21 Appellants filed foregoing that the alleged unlawful aggression on the
a Notice of Appeal on 7 July 2008.22 part of Pedro ceased to exist when appellant Lutgardo
seized the knife from the former, as there was no more
ISSUE: actual danger on appellant Lutgardo’s life. The latter then
had no justifiable reason to stab Pedro in the stomach. In
valid self-defense, the aggression still exists when the
aggressor is killed or injured by the person making a
defense. Thus, when the unlawful aggression ceases to
RULING: exist, the person defending has no more right to kill or
even injure the aggressor.39
Regarding appellant Lutgardo’s plea of self-defense, it is
axiomatic that when an accused pleads self-defense, he The second element of self-defense requires that the
thereby admits authorship of the crime. Accordingly, the means employed by the person defending himself must
burden of evidence is shifted to the accused who must be reasonably necessary to prevent or repel the unlawful
then prove with clear and convincing proof the following aggression of the victim. The reasonableness of the
elements of self-defense: (1) unlawful aggression on the means employed may take into account the weapons, the
part of the victim; (2) reasonable necessity of the means physical condition of the parties and other circumstances
employed to prevent or repel the attack; and (3) lack of showing that there is a rational equivalence between the
sufficient provocation on the part of the person defending means of attack and the defense.40
himself. Although all three elements must concur, self-
defense must firstly rest on proof of unlawful aggression In the case at bar, there was no reason or necessity for
on the part of the victim. If no unlawful aggression appellant Lutgardo to stab Pedro with a knife. Pedro was
attributed to the victim is established, there can be no merely walking on the road and did not attack or place in
self-defense, whether complete or incomplete. Unlawful danger the life of appellant Lutgardo during the incident.
aggression is a condition sine qua non for the justifying Granting, arguendo, that appellant Lutgardo’s version of
circumstance of self-defense to apply.36
the incident was true, his act of stabbing Pedro would not incident, to wit: (1) appellants altogether approached
also be a reasonable and necessary means of repelling the Pedro; (2) appellant Ausencio suddenly embraced and
aggression allegedly initiated by Pedro. Appellant held the shoulders of Pedro; (3) appellants Romulo and
Lutgardo stated that he wrested the knife from Pedro Lutgardo went in front of Pedro; (3) appellant Romulo
during the incident. Hence, there was no more reason or hit Pedro on the forehead with a ukulele; (4) appellant
necessity for him to subsequently stab Pedro, as there Lutgardo stabbed Pedro in the left part of the stomach;
was no more peril to his life. Further, he could have (5) appellant Ausencio pushed Pedro to the ground and
simply disabled Pedro with the help of appellant Romulo told the latter, "You can go home now as you have
by pinning Pedro on the ground, or he could have run already been stabbed"; and (6) appellants altogether fled
away and called the police or neighbors for help. In the scene. No other logical conclusion would follow
short, appellant Lutgardo had other less harmful options from appellants’ concerted action, except that they had a
than to stab Pedro in the stomach. The stab wound common purpose in accomplishing the same felonious
proved to be fatal, as it penetrated the intestine and large act. Conspiracy having been established, appellants are
blood vessel of Pedro. Indeed, appellant Lutgardo’s act liable as co-principals regardless of their participation. 47
failed to pass the test of reasonableness of the means
employed in preventing or repelling an unlawful Appellants assert there was no treachery in the killing of
aggression. Pedro which would qualify the crime as murder.48

As we earlier found, appellant Lutgardo stabbed Pedro There is treachery when the offender commits any of the
without any prior provocation from the latter. Hence, the crimes against the person, employing means, methods or
element of lack of sufficient provocation on the part of forms in the execution thereof which tend directly and
the person making the defense is also wanting in the specially to insure its execution, without risk to himself
present case. arising from any defensive or retaliatory act which the
victim might make.49 The essence of treachery is a
Self-defense is a weak defense because, as experience deliberate and sudden attack that renders the victim
has demonstrated, it is easy to fabricate and difficult to unable and unprepared to defend himself by reason of the
prove. Thus, for this defense to prosper, the accused must suddenness and severity of the attack. Two essential
proved with clear and convincing evidence the elements elements are required in order that treachery can be
of self-defense. He must rely on the strength of his own appreciated: (1) The employment of means, methods or
evidence and not on the weakness of that of the manner of execution that would ensure the offender’s
prosecution. Even if the evidence of the prosecution is safety from any retaliatory act on the part of the offended
weak, it cannot be disbelieved if the accused admitted party who has, thus, no opportunity for self-defense or
responsibility for the crime charged.41 In the case before retaliation; and (2) deliberate or conscious choice of
us, appellant Lutgardo failed to prove with plausible means, methods or manner of execution. Pedro’s
evidence all the elements of self-defense. Hence, his plea shoulders were restrained by appellant Ausencio. Then,
of self-defense must fail. he was hit by appellant Romulo with a ukulele. These
acts facilitated the stabbing of Pedro by appellant
With respect to appellant Romulo’s invocation of defense Lutgardo. Verily, the manner in which Pedro was
of a stranger, three elements must be established: (1) restrained and assaulted was deliberately and consciously
there was unlawful aggression on the part of the victim; adopted by appellants to prevent him from retaliating or
(2) there was reasonable necessity of the means escaping and, ultimately, to ensure his death.
employed to prevent or repel it; and (3) the person
defending was not induced by revenge, resentment or We have observed that the aggravating circumstances of
other evil motive.42 As in the case of self-defense, evident premeditation and abuse of superior strength
unlawful aggression is also a primordial and were also alleged in the information. It is a rule of
indispensable element in defense of a stranger. 43 Since evidence that an aggravating circumstance must be
we have earlier discerned no unlawful aggression on the proven as clearly as the crime itself.
part of Pedro, appellant Romulo’s reliance on defense of
a stranger is unavailing. 53

Appellants, nonetheless, maintain that the prosecution For evident premeditation to be appreciated as an
failed to prove conspiracy among them in killing Pedro. 44 aggravating circumstance, the following elements must
be present: (1) the time when the offender was
Under Article 8 of the Revised Penal Code, there is determined to commit the crime; (2) an act manifestly
conspiracy when two or more persons agree to commit a indicating that the culprit has clung to his resolve; and
felony and decided to commit it. Conspiracy exists where (3) a sufficient interval of time between the
the participants perform specific acts that indicate unity determination or conception and the execution of the
of purpose in accomplishing the same unlawful object. 45 crime to allow him to reflect upon the consequences of
The presence of conspiracy is implied where the separate his act and to allow his conscience to overcome the
acts committed, taken collectively, emanate from a resolution of the will if he desired to hearken to its
concerted and associated action.46 warning.54

It is clear from the testimonies of Joselito and Marcos In the instant case, no proof was adduced to prove the
that appellants were of one mind in killing Pedro, as foregoing elements. Thus, the RTC and the Court of
shown by their well-connected overt acts during the
Appeals were correct in disregarding evident offended party which immediately preceded the crime, is
premeditation.1avvphi1 lacking in the present case.

The RTC and the Court of Appeals also properly Appellants cannot also avail themselves of the mitigating
disregarded the aggravating circumstance of abuse of circumstance of having acted upon an impulse so
superior strength because it is absorbed and inherent in powerful as naturally to have produced passion or
treachery.55 As such, it cannot be separately appreciated obfuscation stated in Article 13(6) of the Revised Penal
as an independent aggravating circumstance. 56 Code. The following essential requirements must be
present: (1) there was an act that was both unlawful and
Appellants argue that if their respective defenses cannot sufficient to produce such condition (passion or
be considered, they are still entitled to the following obfuscation) of the mind; and (2) such act was not far
mitigating circumstances: (1) no intention to commit so removed from the commission of the crime by a
grave a wrong as that committed; (2) sufficient considerable length of time, during which the perpetrator
provocation on the part of the offended party; and (3) might have recovered his normal equanimity.61
having acted upon an impulse so powerful as naturally to
have produced passion or obfuscation.57 In the case at bar, there was no unlawful and sufficient
act on Pedro’s part which sufficiently provoked passion
Under Article 13(3) of the Revised Penal Code, a or obfuscation on appellants’ side. As repeatedly stated,
person’s criminal liability may be mitigated if the Pedro was innocently walking on the road to buy
offender had no intention to commit so grave a wrong as cigarettes for appellants when the latter viciously
that committed. This mitigating circumstance is attacked him for no reason at all. Thus, the mitigating
obtaining when there is a notable disparity between the circumstance of passion or obfuscation is unavailing.
means employed by the accused to commit a wrong and
the resulting crime committed. The intention of the
accused at the time of the commission of the crime is
manifested from the weapon used, the mode of attack
employed and the injury sustained by the victim. 58
Appellant Lutgardo used a 12-inch knife, which is a
lethal weapon, in stabbing Pedro.59 He directed the knife
at and landed it on Pedro’s stomach, which proved to be
fatal, as it seriously damaged Pedro’s intestine and blood
vessel and eventually led to his death. Appellant
Ausencio held the shoulders of Pedro, while appellant
Romulo hit the victim with a ukulele to neutralize his
resistance and to facilitate the fatal stabbing. Appellants’
attack on Pedro was sudden and deliberate. These
concerted acts of appellants eloquently demonstrated
their intent to kill him. Thus, the mitigating circumstance
of lack of intent to commit so grave a wrong as that
committed cannot be considered in favor of appellants.

Likewise, appellants are not entitled to the mitigating

circumstance of sufficient provocation or threat on the
part of the offended party, which must have immediately
preceded the crime as provided in Article 13(4) of the
Revised Penal Code. Before the same can be appreciated,
the following elements must concur: (1) that the
provocation or threat must be sufficient or proportionate
to the crime committed and adequate to arouse one to its
commission; (2) that the provocation or threat must
originate from the offended party; and (3) that the
provocation must be immediate to the commission of the
crime by the person provoked.60

Pedro did not in any way provoke appellants into a fight

on that fateful night. There was no argument or physical
struggle that ensued between them shortly before
appellants helped one another in killing Pedro. Pedro, in
fact, tried to avoid a fight or misunderstanding with
appellants by agreeing to buy them cigarettes at his own
expense. Unfortunately, when Pedro was on his way to
buy cigarettes for appellants, the latter suddenly
assaulted him. Clearly, the mitigating circumstance of
sufficient provocation or threat on the part of the