SECOND DIVISION

[G.R. No. 113793. August 11, 1995.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JUAN GANZAGAN, JR. Y

MADAYAG, Accused-Appellant.

The Solicitor General for Plaintiff-Appellee.

Public Attorney’s Office for Accused-Appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; BURDEN OF PROOF; SHIFTED TO THE ACCUSED WHO

INVOKES SELF-DEFENSE. — It is a well-entrenched principle in criminal law that the
burden of proving the guilt of the accused lies squarely on the shoulders of the
prosecution. Conviction must rest, not on the weakness of the defense, but on the
strength of the prosecution. In cases, however, where the accused admits committing
the crime but invokes self-defense to escape liability, the rule is reversed and the
burden of proof is shifted to the accused to prove the elements of his defense.

2. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES;. SELF-DEFENSE; ELEMENTS. — In

claiming self-defense appellant needs to convincingly establish that: (1) Servillano
acted with unlawful aggression towards him; (2) the means he employed to repel such
aggression was reasonable; and (3) he did not sufficiently provoke Servillano towards
aggression. If appellant fails to discharge this burden of proof, his conviction shall of
necessity follow, on the basis of his admission to the killing.

3. ID.; ID.; ID.; UNLAWFUL AGGRESSION, CONSTRUED. — Unlawful aggression, which

is an indispensable element of self-defense, is an assault or attack, or a threat thereof
in an imminent and immediate manner, which places the accused’s life in actual peril. It
is an offensive act positively strong and determinative of the aggressor’s intent to cause
harm or injury. It presupposes a material attack which is impending or at the point of
happening, and not merely an intimidating attitude or stance.

4. ID.; ID.; ID.; UNLAWFUL AGGRESSION CEASES WHERE ASSAILANT WHO WAS
DISARMED FLEES; ABSENCE OF IMMEDIATE DANGER TO LIFE OF APPELLANT WHERE
HOSTILITIES RESUMED WHERE APPELLANT WAS THE ARMED PROTAGONIST. — In the
case at bench, appellant testified that after the initial bolo attack on him, he was able to
take possession of the weapon and run away from Servillano. At that point, the
unlawful aggression against him effectively ceased. When hostilities resumed five
minutes later, appellant was the armed protagonist, and Servillano’s act of trying to
wrest the bolo back from him cannot be considered as unlawful aggression. Appellant
no longer faced any imminent or immediate danger to his life and limb from his
opponent. There was no unlawful aggression by Servillano. Appellant had nothing to
repel. Therefore, he cannot successfully posit the view that he was merely defending
himself when he killed Servillano.
5. ID.; ID.; ID.; CLAIM BELIED BY FIVE (5) GAPING WOUNDS ON VICTIM’S NECK,
RUNNING FROM THE BACK OF THE HEAD TO THE NAPE EXPOSING SEVERED MUSCLES,
VEINS AND ARTERIES. — Parenthetically, appellant’s claim of self-defense is further
belied by the physical evidence in the case, specifically the number, location and
severity of the hacked wounds found on Servillano. Dr. Gonzales found five (5) gaping
wounds on Servillano’s neck, running from the back of the head to the nape which
exposed and severed the muscles, veins and arteries in the neck area. These indicate
clearly that appellant’s act was no longer one of self-preservation, "but a determined
effort to kill his victim." cralaw virtua1aw library

6. ID.; CRIMES AGAINST PERSONS; ABSENCE OF QUALIFYING CIRCUMSTANCES

MAKES THE KILLING HOMICIDE. — The circumstances that qualify murder must be
proven as indubitably as the killing itself. The presence of treachery and evident
premeditation must not be deduced from mere presumption or sheer speculation.
Unfortunately, in the case at bench, that is exactly what the trial court did in concluding
that both qualifying circumstances are present. Absent the qualifying circumstances of
treachery and evident premeditation, the crime committed by appellant is not murder,
but homicide, as defined and penalized under Article 249 of the Revised Penal Code.

7. ID.; QUALIFYING CIRCUMSTANCES; TREACHERY; CONSTRUED. — Article 14 (16) of

the Revised Penal Code defines treachery thus: "There is treachery when the offender
commits any of the crimes against the person employing means, methods, or forms in
the execution thereof which tend directly and specially to insure its execution without
risk to himself arising from the defense which the offended party might make." (Italics
ours.) Its essence lies in the adoption of ways that minimize or neutralize any
resistance which may be put up by the offended party.

8. ID.; ID.; ID.; NOT APPRECIATED IN CASE AT BAR. — In the present case, the
prosecution failed to present any witness to testify as to the manner by which
Servillano was attacked by appellant. Their sole eyewitness, Elino Manuel, only saw the
actual hacking of the victim by appellant, and not the events that led to it. The records
provide no basis for the trial court’s finding of treachery. (People v. Bachar, 170 SCRA
700 [1989]).

9. ID.; ID.; EVIDENT PREMEDITATION; ELEMENTS. — Evident premeditation suggests

the deliberate hatching of a plan to execute a crime. Its elements are: (1) a previous
decision by the accused to commit the crime; (2) an overt act/acts manifestly indicating
that the accused clung to his determination; and (3) a lapse of time between the
decision to commit the crime and its actual execution sufficient to allow the accused to
reflect upon the consequences of his acts.

10. ID.; ID.; ID.; NEGATED BY ABSENCE OF DIRECT EVIDENCE OF THE PLANNING AND
PREPARATION TO THE KILL VICTIM. — Time and again, we have held that evident
premeditation cannot be appreciated to qualify a killing to murder in the absence of
direct evidence of the planning and preparation to kill when the plan was conceived. In
the case at bench, the prosecution failed to prove with any certainty that appellant had
planned and prepared to kill Servillano previous to the fatal hacking. The records are
bereft of any indication of such a plot. Furthermore, the findings of the court a quo that
appellant was already armed with a bolo when he went to the Manuel residence looking
for Servillano and that he waited in ambush for the latter, are totally unfounded. These
were never mentioned in the testimony of prosecution eyewitness Elino Manuel.

DECISION

PUNO, J.:

In order for conviction to lie, all the elements of the crime must be established beyond
a reasonable doubt. In the case of murder, it is incumbent upon the prosecution to
muster the evidence required by the Constitution to show not only that the unlawful
killing was perpetrated by the accused, but also that any of the attendant
circumstances that qualify it to murder exists. If it cannot be proven with moral
certainty that at least one of the qualifying circumstances enumerated in Article 248 of
the Revised Penal Code is present, the prosecution fails in its task, and the accused
must be freed from liability for murder.

The case at bench commenced upon the filing on June 13, 1988 of an Information
before the Regional Trial Court of Urdaneta, Pangasinan, 1 charging appellant JUAN
MADAYAG GONZAGA, JR. 2 of murdering SERVILLANO VILLANUEVA MANUEL, JR., as
follows:jgc:chanrobles.com.ph

"That on or about the 1st day of April 1988, in the evening, at Barangay Bayaoas,
Municipality of Urdaneta, Province of Pangasinan, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, being then armed with a single
bladed bolo, called "Panabas", measuring about 26 inches including its handle, with
deliberate intent to kill, with treachery and evident premeditation, did then and there
willfully, unlawfully and feloniously attack, assault and hack one Servillano Manuel, Jr. y
Villanueva, inflicting upon him the following injuries, to wit:jgc:chanrobles.com.ph

"Significant External Findings: chanrob1es virtual 1aw library

— Abrasion, both knees; abrasion, right shoulder, lateral aspect; abrasion, right
forefinger and middle finger; abrasion, chin, right half; abrasion with ecchysmosis, right
temple near right eye;

— Gaping wound, neck, left half, middle half, with exposed and severed muscles, veins
and arteries, measuring 11 cms x 4 cms.;

— Incised wound, forehead, right half, above right eyebrow with exposed bone,
measuring 6 cms. x 2 cms.;

— Incised wound, forehead, middle, measuring 5 cms. x 1 cm., with exposed wound;

— Incised wound, forehead, left half, with exposed bone, measuring 5 cms. x 1 cm.;

— Gaping wounds (5) nape and back of skull, beginning from back of head going down
to nape;
Wound #1: measures 6 1/2 cms. x 1 cm.;

#2: measures 7 1/2 cms. x1 1/2 cms.;

#3: measures 3 cms. x 1 1/2 cms.

#4: 12 cms. x 1 1/2 cms.

#5: 6 cms. x 11/2 cms.

"Significant Internal Findings: chanrob1es virtual 1aw library

— Neck, left half, lateral aspect; severed jugular vein and carotid artery;

— Fracture, linear, right frontal bone, 6 cms. long;

— Fracture, linear, middle half of frontal bone, 2 cms. long;

— Fracture, linear, left half of frontal bone. 5 cms. long;

which accused the death of Servillano Manuel, Jr., y Villanueva as a consequence, to

the damage and prejudice of his heirs." cralaw virtua1aw library

Appellant was arraigned. He pleaded not guilty to the charge levelled against him. Trial
ensued.

The records show that appellant and Servillano Manuel, Jr. lived in the same
neighborhood in Sitio Las Vegas, Barangay Bayaoas, Urdaneta, Pangasinan. 3 During
his lifetime, Servillano worked as a kristo, or cockpit bet caller, and as a collector in
carnival shows. 4 Before his arrest, appellant was working part-time as a laborer. 5

The prosecution produced an eyewitness in the person of ELINO MANUEL, 6 Servillano’s

younger brother. Elino narrated that sometime after five o’clock in the afternoon (5:00
p.m.) of April 1, 1988, appellant came. to their house looking for Servillano. 7 Failing to
find him there, appellant boxed the door of the Manuel residence twice and left in a
huff. "Hutdon mong tanan, patyon mong tanan," he uttered in Visayan as he left. 8
Chills ran down Elino’s spine. In his mind, he translated appellant’ threat: "I will kill you
all!" 9

Fearing for his brother’s life, Elino rushed to the corner of Las Vegas Road and Sison
Street, where he expected Servillano to pass on his way home from the poblacion.
Unfortunately, he was wrong, for Servillano opted to take an alternate route back to
their house. 10

After waiting in vain at the corner for about an hour, Elino headed home. On his way,
he caught sight of appellant hacking Servillano with a bolo about fifteen (15) meters
from where he was. Servillano was then stooped forward and away from appellant, with
his head down and backside pointed upward. 11 Immobilized by shock, Elino witnessed
appellant strike Servillano four times, and then throw aside the bloodied bolo he used.
Appellant escaped on-board a tricycle, together with his brother-in-law, Ernesto Adame.
12

Servillano’s body was autopsied on the morning of April 2, 1988, by rural health unit
physician DR. RAMON GONZALES, JR., 13 who found the cause of death to be
"irreversible shock due to arterial hemorrhage caused by the hacking wound, neck." 14
His findings were reduced to a written report, 15 the contents of which are quoted in
and incorporated into the Information filed against Appellant.

The defense did not challenge the result of the autopsy conducted on Servillano’s body,
and did not question the medical findings as to the cause of death. Appellant, in fact,
admitted that he inflicted the fatal hacked wounds on Servillano. However, appellant
sought shelter behind the doctrine of self-defense. He and his wife, MARILOU
GANZAGAN, 16 related a completely different version of what transpired on the day
Servillano died.

The Ganzagas testified that at around five o clock in the afternoon (5:00 p.m.) of April
1, 1988, they were at home. Marilou was then downstairs, preparing some bilo-bilo,
while appellant was on the upper level of the house watching over their two-month-old
infant daughter. 17 Suddenly, Servillano Manuel, Jr., who was visibly upset, barged into
their house, looking for appellant. 18 He left hurriedly without waiting for appellant to
come down. 19

Not long after, Servillano returned to the Ganzagan residence. 20 This time, he was
armed with a bolo, with which he stuck the house near the kitchen. 21 Appellant
confronted Servillano who cursed 22 and abruptly assaulted the former with the bolo.
He delivered an overhead hacking blow 23 to appellant, who stepped back and parried
the same with his right arm. The tip of the bolo hit the appendage and produced a
three-centimeter nick on it. 24 Marilou rushed out of their house onto the street,
screaming for help. None came to her aid, as everyone was attending a procession
along the Urdaneta-Asingan provincial road. 25 When she returned to their house,
neither appellant nor Servillano was there. 26 She did not think to lack for the two, and
merely remained inside their house. 27

Meanwhile, after a brief tussle with Servillano, appellant was able to wrest the bolo
away from him. With bolo in hand, appellant ran to the middle of the street. 28 He
stopped when he remembered his baby, who was left alone in their house. 29 For the
next five minutes appellant stood transfixed on the road. 30 The impass was broken by
Servillano who renewed his attack. 31 In trying to grad the bolo back from appellant,
Servillano stumbled and fell forward, face down and with his backside pointing up. 32 It
was then that appellant hacked Servillano several times. 33

Appellant fled from the scene of the crime. He went into hiding, 34 and a week passed
after the incident before his wife saw him again. 35 Much later, during the pendency of
the trial against him, appellant jumped bail. 36

In rebuttal, the prosecution submitted in evidence a certification of the death of the

Ganzagas’ four-month-old son, Michael, on January 15, 1988, barely two-and-a-half (2
1/2) months before Servillano’s killing.
At the close of trial, the court a quo decided against appellant. It held: jgc:chanrobles.com.ph

"The killing was qualified by evident premeditation and treachery because when
(appellant) went to the house of the victim armed with a bolo looking for the latter who
was not around, he had already the intention to kill him and said intention to kill was
never abandoned as he waited for the arrival of the victim whom he saw along the
road. There was treachery as the accused hacked the victim by the neck several times
and the sudden and frontal attack on the forehead, thus causing his bones on the
forehead to be exposed as shown in the medical certificate . . . The exposure of the
bones would only show that the hacking was therefore so strong enough as to insure
his premeditated intention to kill the victim.

"WHEREFORE, in the light of the foregoing discussion, this Court believes that the
prosecution was able to prove the guilt of the (appellant) beyond reasonable doubt.
Pursuant to Art. 248 of the Revised Penal Code, the Court hereby finds the (appellant)
Juan Ganzagan, Jr., guilty of the crime of Murder and sentences him to suffer the
penalty of reclusion perpetua, considering the provisions of the 1987 Constitution (Art.
III, Section 19(1)), and with all the accessory penalties provided by law; and to pay the
civil liability of P50,000.00 to the heirs of the deceased; and moral damages in the
amount of P50,000.00, with costs.

"SO ORDERED." (Citations omitted) 37

Appellant now sets forth the following assigned errors: chanrob1es virtual 1aw library

"I

THE TRIAL COURT ERRED IN NOT UPHOLDING SELF-DEFENSE AS A GROUND FOR

ACQUITTAL OF ACCUSED-APPELLANT.

"II

ON THE ASSUMPTION THAT ACCUSED-APPELLANT IS AT ALL GUILTY, THE TRIAL

COURT NEVERTHELESS ERRED IN CONVICTING HIM FOR MURDER INSTEAD OF ONLY
HOMICIDE CONSIDERING THAT NEITHER THE QUALIFYING CIRCUMSTANCE OF
TREACHERY NOR PREMEDITATION WAS DULY ESTABLISHED." 38

The appeal is partly meritorious. Appellant is not guilty of murder.

Appellant reiterates his reliance on the doctrine of self-defense to justify the killing of
Servillano. He argues that he was able to prove all the elements of defense of self,
namely: (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.

We are not persuaded.

There are strong reasons to doubt the defense version of the facts that led to the killing
of Servillano. The account of the Ganzaga spouses is inconsistent with the common
experience and observation of mankind. 39 Especially difficult to accept are the
following assertions: chanrob1es virtual 1aw library

(1) On the fateful afternoon of April 1, 1988, appellant was preparing bilo-bilo on the
second floor of their house because he was looking after their two-month-old infant
daughter. This is highly peculiar, since according to the records of their parish church
(Exh. "F", Original Records, p. 227), their four-month-old infant son, Michael died
barely two-and-a-half months prior to Servillano’s killing;

(2) While appellant and Servillano were grappling for possession of the latter’s bolo,
Marilou ran out to seek help. She said that she only ran to a distance of fifty (50) to
one hundred (100) meters from their house, but it took her thirty (30) minutes to
return home (TSN of November 22, 1993, pp. 5, 9, 10);

(3) None heeded Marilou’s call for help because everyone else in their entire
neighborhood was attending a procession on the main road (Ibid., at p. 5);

(4) When Marilou returned home and found neither her husband (appellant) nor
Servillano there, she did not — either out of worry or curiosity — even try to find out
what had happened to them (Id., at pp. 5, 12);

(5) After he succeeded in taking the bolo away from Servillano, appellant ran out of
their house to the middle of the road, where he stopped and stood doing nothing for
five minutes. On cross-examination, he claimed that he stopped because he
remembered that their infant daughter was left alone in their house. But, he did not
attempt to return to their home anyway;

(6) It took Servillano five minutes to reach appellant, who was standing fifteen (15)
meters from where they had previously been wrestling, because he (Servillano) was
drunk (TSN of November 23, 1993, p. 20); and

(7) When Servillano finally caught up with appellant, he did not attack the former
immediately although he thought that Servillano was again armed with a weapon.
Instead, he waited until Servillano stumbled face down while trying to wrest the bolo
away from him (appellant).

Furthermore, appellant’s self-contradictions and vacillations in his testimony are patent

and numerous. These were exposed in his cross-examination, where he was confronted
and asked to explain several of his contradictory statements, viz.: jgc:chanrobles.com.ph

"FISCAL VENIEGAS: jgc:chanrobles.com.ph

"Q On April 1, 1988 at about 5:00 o’clock, Servillano Manuel was drunk and he came to
you in your house and extorted money from you, is that correct?

"WITNESS: jgc:chanrobles.com.ph

"A Yes, sir.

"Q As he used to do in the past everytime he is drunk?

"A Yes, sir.

"Q And he was asking money from you?

"A Yes, sir.

"Q How did he try to ask you for liquor money? Will you quote what he said?

"A He told me, ‘Will you give me money because I got short in the other side and I
need some more money.’

"Q Is that (during) the first time that he came or on the second time when he returned
to your house?

"A The first time, sir.

"Q The first time, when you were upstairs, making bilo-bilo?

"A Yes, sir.

"Q And he was talking to you?

"A He talked with my wife, sir.

"Q So, it was not you from whom he was asking money, but it was your wife?

"A Yes, sir.

"Q But you said the first time that he came, you testified that he was asking for you
name and later he was asking for you from your wife.

"A Yes, sir.

"Q Then he left and later on, after about 30 minutes, he came back?

"A Yes, sir.

"Q And you went down because as you were upstairs, you went down and asked him
why he was asking you. Correct?

"A Yes, sir.

"Q And Servillano Manuel without saying a word hacked you immediately. Is that
correct according to your testimony?

"A Yes, sir.

"Q Then you wrestled and wrested the bolo from him and you ran to the street. Is that
correct?

"A Yes, sir.

"Q And in your earlier testimony there is no point in time when you talked to him and
(when he) asked you for wine money. Is that correct?

"A Yes, sir.

"x       x       x

"Q When Servillano Manuel returned to your house as you said, did he also ask where
you were from your wife?

"A Not anymore because he immediately hacked the post in the doorway.

"Q And at that time, you got irked and you went downstairs?

"A I went down. He was the one who got mad. I just went down the stairs.

"Q What did he tell you when he came back if any?

"A He said, ‘vulva of your mother.’

"Q Because you asked him why he was looking for you, correct?

"A Yes, sir.

"Q And he answered, ‘Okinnam’ (vulva of your mother)?

"A Yes, sir.

"Q In direct examination, you said that when Servillano returned after half an hour after
the first time that he came to your house, you went down your house, asking him why
he hacked the post and you said he did not answer and immediately hacked with a bolo
on your right hand. Do you remember having said that?

"A Yes, sir.

"Q Why did you say that he answered you ‘vulva of your mother’? Are you changing
your previous testimony?

"A Immediately before he hacked me, he said ‘vulva of your mother.’

"Q In other words, your previous testimony that he did not say anything before he
hacked you is not correct?

"A That is true.

"Q But you did not tell the Court that he said ‘vulva of your mother’.
"A He said that.

"Q But you did not mention to the Court in the first time.

"A Because I am nervous.

"x       x       x

"Q Now, in your direct testimony, you said that after wresting the bolo from Servillano,
you ran towards the road and you stood there for five (5) minutes after which
Servillano Manuel came to you and attacked you. Do you remember having stated that?

"A That is why I pause for five (5) minutes in the road, because I thought of my baby in
the house whom I wanted to protect because he might harm the baby instead.

"Q But you also left your wife in the kitchen with your baby upstairs, correct?

"A She was not there anymore because as soon as we fought with Servillano Manuel,
my wife became hysterical and she ran away.

"Q When you were at the road, you thought of your baby as you said. That is why you
stayed there for five (5) minutes?

"A Yes, sir.

"Q And then it was at that time that Servillano Manuel appeared and tried to kill you as
the intention as you said was to kill you.

"A Yes, sir.

"Q But he was already unarmed because you had already wrested the bolo from him?

"A Yes sir, because during that time, I thought that he still had some arms with him
because it was quite dark already.

"COURT

"Q When you were standing there at the road, Servillano approached you?

"A Yes, Ma’am.

"Q When he approached you, why did you say that Servillano has intention to kill you?

"A When Servillano Manuel came and approached me, he was so mad. I thought he was
armed and it was quite dark then, so I decided to hack him.

"Q When you decided to hack him, what did you use? The bolo you wrested from him?

"A Yes, Ma’am.

"Q Did he grapple for the possession of the bolo from you in the road?

"A He tried to wrest the bolo from me while we were in the road.

"x       x       x

"Q Will you demonstrate how he grappled the bolo again?

"A While I was holding the bolo downward and I was standing by the road, Servillano
Manuel came and lunged forward to get the bolo from my hand, and in that instance,
he stumbled to the ground.

"Q Will you demonstrate how Servillano stumbled?

"A As he lunged forward to get the bolo from my hand, I moved my hand which held
the bolo away from him. So, he fell to the ground, face down.

"Q With the buttocks up?

"A (The witness demonstrated how Servillano Manuel fell to the ground, face down with
his buttocks up.)

"FISCAL VENIEGAS: jgc:chanrobles.com.ph

"Q And Servillano Manuel was in that position when you hacked him?

"A Yes, sir.

"Q Could you tell the Court in the first blow when you hacked him, where did you hack
him? What, part of his body?

"A His face and his arm.

"Q You mean that in that position with face on the ground, you hacked his face and his
hand?

"A When Servillano came towards me he tried to wrestle the bolo away from me. That
is why I lunged the bolo to his face. That is why his face and arm were hit.

"Q At the same time, the face was hit?

"A I cannot recall.

"Q So, it is not true that when he came at you after you were standing there for five (5)
minutes and you concluded his intention to kill you when he wrested the bolo, that he
fell to the ground as you said?

"A The first time he tried to wrestle the bolo from me, I immediately hacked him on the
fact and the second time, he tried to wrestle (was when he fell down).
"Q But in the demonstration, you demonstrated only one attempt on his part to wrestle
the bolo from you. Is that correct?

"A Yes, sir.

"x       x       x" 40

In any event, even granting the defense’s factual assertions, we are still unimpressed
theory of self-defense.

It is a well-entrenched principle in criminal law that the burden of proving the guilt of
the accused lies squarely on the shoulders of the prosecution. Conviction must rest, not
on the weakness of the defense, but on the strength of the prosecution. 41 In cases,
however, where the accused admits committing the crime but invokes self-defense to
escape liability, the rule is reversed and the burden of proof is shifted to the accused to
prove the elements of his defense. As held in the case of People v. Boniao, 217 SCRA
653 (1993):
jgc:chanrobles.com.ph

"By invoking self-defense, the appellant admitted killing the four (4) victims. The
burden is, therefore, upon him to prove the existence, by clear and convincing
evidence, of its essential requisites . . .; otherwise stated, the onus probandi was thus
shifted to him . . . He just rely on the strength of his own evidence and not on the
weakness of that of the prosecution . . ., for even if the latter were weak, it could not
be disbelieved after he himself admitted the killing . . ." (Citations omitted)

Thus, in claiming self-defense, appellant needs to convincingly establish that: (1)

Servillano acted with unlawful aggression towards him; (2) the means to employed to
repel such aggression was reasonable; and (3) he did not sufficiently provoke Servillano
towards aggression. If appellant fails to discharge this burden of proof, his conviction
shall of necessity follow, on the basis of his admission to the killing.

Unlawful aggression, which is an indispensable element of self-defense, 42 is an assault

or attack, or a threat thereof in an imminent and immediate manner, which places the
accused’s life in actual peril. 43 It is an offensive act positively strong and
determinative of the aggressor’s intent to cause harm or injury. 44 It presupposes
material attack which is impending or at the point of happening, and not merely an
intimidating attitude or stance.

In the case at bench, appellant testified that after the initial bolo attack on him, he was
able to take possession of the weapon and run away from Servillano. At that point, the
unlawful aggression against him effectively ceased. When hostilities resumed five
minutes later, appellant was the armed protagonist, and Servillano’s act of trying to
wrest the bolo back from him cannot be considered as unlawful aggression. Appellant
no longer faced any imminent or immediate danger to his life and limb from his
opponent.

There was no unlawful aggression by Servillano. Appellant had nothing to repel.

Therefore, he cannot successfully posit the view that he was merely defending himself
when he killed Servillano.
Parenthetically, appellant’s claim of self-defense is further belied by the physical
evidence in the case, specifically the number, location and severity of the hacked
wounds found on Servillano. Dr. Gonzales found five (5) gaping wounds on Servillano’s
neck, running from the back of the head to the nape which exposed and severed the
muscles, veins and arteries in the neck area. These indicate clearly that appellant’s act
was no longer one of self-preservation, "but a determined effort to kill his victim." 45

Appellant next postulates that even if self-defense were unavailable to him, he should
only have been found guilty of committing homicide, and not murder. He claims that
neither treachery nor evident premeditation, which are alleged in the Information, are
present in the case at bench.

We are convinced.

The circumstances that qualify murder must be proven as indubitably as the killing
itself. The presence of treachery 46 and evident premeditation 47 must not be deduced
from mere presumption or sheer speculation. Unfortunately, in the case at bench, that
is exactly what the trial court did in concluding that both qualifying circumstances are
present.

Article 14 (16) of the Revised Penal Code defines treachery thus: jgc:chanrobles.com.ph

"There is treachery when the offender commits any of the crimes against the person,
employing means, method, or form 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." (Emphasis ours)

Its essence lies in the adoption of ways that minimize or neutralize any resistance
which may be put up by the offended party.

In the present case, the prosecution failed to present any witness to testify as to the
manner by which Servillano was attacked by appellant. Their sole eyewitness, Elino
Manuel, only saw the actual hacking of the victim by appellant, and not the events that
led to it. The records provide no basis for the trial court’s finding of treachery. As we
held in the case of People v Bachar, 170 SCRA 700 (1989) 48 : jgc:chanrobles.com.ph

". . . Not a single eyewitness to the stabbing incident had been presented by the
prosecution. Thus, the record is totally bereft of any evidence as to the means or
method resorted to by appellant in attacking the victim. It is needless to add that
treachery cannot be deduced from mere presumption, much less from sheer
speculation. The same degree of proof to dispel reasonable doubt is required before any
conclusion may be reached respecting the attendance of alevosia." cralaw virtua1aw library

Evident premeditation suggests the deliberate hatching of a plan to execute a crime. Its
elements are: (1) a previous decision by the accused to commit the crime; (2) an overt
act/acts manifestly indicating that the accused clung to his determination; and (3) a
lapse of time between the decision to commit the crime and its actual execution
sufficient to allow the accused to reflect upon the consequences of his acts.
Time and again, we have held that evident premeditation cannot be appreciated to
qualify a killing murder in the absence of direct evidence of the planning and
preparation to kill when the plan was conceived. 49 In the case at bench, the
prosecution failed to prove with any certainty that appellant had planned and prepared
to kill Servillano previous to the fatal hacking. The records are bereft of any indication
of such a plot. Furthermore, the findings of the court a quo that appellant was already
armed with a bolo when he went to the Manuel residence looking for Servillano and that
he waited in ambush for the latter, are totally unfounded. These were never mentioned
in the testimony of prosecution eyewitness Elino Manuel.

Absent the qualifying circumstances of treachery and evident premeditation, the crime
committed by appellant is not murder, but homicide, as defined and penalized under
Article 249 of the Revised Penal Code.

IN VIEW WHEREOF, the conviction of appellant JUAN MADAYAG GANZAGAN, JR. by the
Regional Trial Court of Urdaneta, Pangasinan, Branch 48 in Criminal Case No. U-4850 is
AFFIRMED, but he is found GUILTY of the lesser crime of HOMICIDE. The appealed
Decision, dated December 6, 1993, is MODIFIED so that appellant shall instead suffer
the penalty of from twelve (12) years of prison mayor, as minimum, to seventeen (17)
years and four (4) months of reclusion temporal, as maximum.

SO ORDERED.

Narvasa, C.J., Regalado, Mendoza and Francisco, JJ., concur.