SECOND DIVISION

[G.R. No. 72998. July 29, 1988.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANGEL "TOTOY"

ACAYA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Benjamin N. Casiano for accused-appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; PRESUMPTION OF OFFICIAL DUTY; THAT THE

SAME HAS BEEN REGULARLY PERFORMED; CASE AT BAR. — No adequate proof has
been presented to show any deletion in, or tampering of, the stenographic notes.
Absent sufficient showing, the presumption is that official duty has been regularly
performed by the stenographer who took down the notes of the proceedings (People
vs. Arias, G.R. No. L-40531. January 27, 1981, 102 SCRA 303).

2. ID.; ID.; CONVICTION; FINDINGS OF GUILT BASED ON THE STRENGTH OF

THE PROSECUTION'S EVIDENCE. — Our own review and assessment of the
evidence confirm the Trial Court's finding of guilt. The testimonies of prosecution
eyewitnesses, Julius Cataluña, Rodrigo Sinag, and Roel Barsana, adequately
establish appellant's culpability. Cataluña was standing beside the victim when he
saw appellant suddenly come and stab the victim while they were dancing
prompting said witness to hold appellant's arm. After the victim fell, Sinag, in turn,
held appellant's hand, which wielded the knife. Cataluña and Barsana, respectively
testified, positively and emphatically, that they saw appellant thrust the knife on
the left side of the victim. The victim's ante mortem statement thumbmarked with
his own blood (Exh. "H"), taken by the PC investigator on the way to the hospital,
which identified appellant as the assailant, and wherein the victim declared that he
believed that he was going to die because of his stab wound, further buttresses
appellant's guilt.

3. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCE; TREACHERY; PRESENT IN

THE CASE AT BAR DUE TO THE SUDDENNESS OF THE STABBING OF THE VICTIM. —
Treachery was present considering the suddenness with which appellant stabbed
the victim. The latter was totally unprepared for the unexpected attack. He was
dancing at the precise time of the incident and was given absolutely no chance to
defend himself.

4. ID.; ID.; EVIDENT PREMEDITATION; ELEMENTS; WHEN NOT CONSIDERED TO

QUALIFY MURDER; NOT APPRECIATED IN THE CASE AT BAR. — Evident
premeditation, however, should not be appreciated, the elements thereof not
having been sufficiently proven, namely, the time when the offender determined to
commit the crime; an act manifestly indicating that the accused had clung to his
determination; and a sufficient lapse of time between such determination and
execution, to allow him to reflect upon the consequences of his acts. Evident
premeditation cannot be considered to qualify murder where it is not shown when
the plan to kill was hatched, or what time elapse before it was carried out (People
vs. Corpus, 107 Phil. 44 [1960]).The fact that another knife was found on the
person of appellant aside from the very knife used in the commission of the crime is
no proof of "a cold and deep meditation on the plan and tenacious persistence in the
accomplishment of the criminal act" as the Trial Court had put it. This Court has
consistently held that evident premeditation must be based on external acts and
that such must be evident and not merely suspected indicating deliberate planning
(U.S. vs. Ricafor, 1 Phil. 173 [1902]; People vs. Yturriaga, 86 Phil. 534 [1950]; U.S.
vs. Cornejo, 28 Phil. 457 [1914]).

5. ID.; ID.; TREACHERY AND EVIDENT PREMEDITATION; WHEN DEEMED NOT

INCLUDED IN A PLEA OF GUILTY; PEOPLE VS. GRAVINO, 122 SCRA 123, CITED AS
AUTHORITY; CASE AT BAR. — The contention that since appellant pleaded guilty to
the Information, the aggravating circumstances of treachery and evident
premeditation must be deemed fully established inasmuch as a guilty plea covers
both the crime as well as its attendant circumstances, is unacceptable, in the light of
the evidence negating the presence of those circumstances. The case of People vs.
Gravino (G.R. No. L-31327-29, May 16, 1983, 122 SCRA 123) is authority for the
ruling that a plea of guilty cannot be held to include treachery and evident
premeditation where the evidence adduced does not adequately disclose the
existence of those qualifying circumstances.

6. ID.; ID.; IGNOMINY; DEFINED; NOT APPRECIATED IN THE CASE AT BAR. —

Neither should the aggravating circumstance of ignominy be appreciated, defined as
"a circumstance pertaining to the moral order which adds disgrace and obloquy to
the material injury caused by the crime" (U.S. vs. Abaigar, 2 Phil. 417 [1903]). The
fact that the crime was committed in a public place and in the presence of many
persons did not necessarily tend to make the effects of the crime more humiliating
or put the offended party to shame.

7. ID.; ALTERNATIVE CIRCUMSTANCE; INTOXICATION; CANNOT BE

CONSIDERED AS MITIGATING AS THE FACT OF INTOXICATION WAS AFTER THE
INCIDENT OF THE CRIME. — Appellant's averment that intent to kill was inexistent
because the accused was in a state of intoxication, is unmeritorious. In the first
place, with the plea of guilty, appellant had admitted the commission of the
unlawful act. In the second place, proof is inadequate that appellant was intoxicated
to the point of blurring his reason and depriving him of a certain degree of control at
the precise time of the stabbing. Prosecution eyewitness Cataluña categorically
testified that he did not notice that appellant was drunk. The testimony of Sgt.
Teofilo de la Isla, the police investigator, to the effect that when he arrested
appellant at around 11:00 o'clock the same evening of the incident, the latter was
very drunk and could not answer questions, only proves the fact of intoxication after
the incident but not at the precise time of the commission of the crime. As counsel
de officio himself stated in Appellant's Brief, there was a "blockout of what
happened to the assailant Angel Acaya" after the stabbing.

8. REMEDIAL LAW; EVIDENCE; DISPUTABLE PRESUMPTION; THAT THE

UNLAWFUL ACT OF ACCUSED WAS DONE WITH AN UNLAWFUL INTENT. — But,
certainly, appellant's act of stabbing the victim with the use of a deadly weapon
such as a kitchen knife, producing a severe and penetrating wound which caused his
death, indicates no other intention than that of the desire to kill. The rule is
unchanged that if it is proved that the accused committed the unlawful act charged,
the presumption is that the act was done with an unlawful intent and it is up to the
appellant to rebut this presumption. That burden has not been satisfactorily
discharged in this case.

9. CRIMINAL LAW; MITIGATING CIRCUMSTANCE; VOLUNTARY SURRENDER;

WHEN SURRENDER CONSIDERED VOLUNTARY; NOT PROVEN IN THE CASE AT BAR.
— The mitigating circumstance of voluntary surrender has neither been proven.
There is no showing that the surrender of the accused was made voluntarily or
spontaneously. In fact, the defense stresses that appellant was drunk when
apprehended. The mere fact that appellant did not resist his arrest cannot be
equated with voluntary surrender (People vs. Reyes, No. L-33154, February 27,
1976, 69 SCRA 474). A surrender is not voluntary when forced by circumstances. To
be voluntary, a surrender must be spontaneous, that is, there must be an intent to
submit oneself to the authorities, either because he acknowledges his guilt or
because he wishes to save them from the trouble and expense to be necessarily
incurred in his search and capture (People vs. Sakam, 61 Phil. 27 [1934]).

10. ID.; MURDER; PENALTY; ART. 248, REVISED PENAL CODE; RECLUSION
TEMPORAL, MAXIMUM PERIOD, TO RECLUSION PERPETUA DUE TO ABOLITION OF
CAPITAL PUNISHMENT IN THE 1987 CONSTITUTION. — The crime committed is
Murder, qualified by treachery, attended by the mitigating circumstance of plea of
guilty. Pursuant to Article 248 of the Revised Penal Code, the imposable penalty
should be reclusion perpetua, as imposed by the Trial Court. However, with the
abolition of capital punishment in the 1987 Constitution, the penalty for Murder is
now reclusion temporal in its maximum period to reclusion perpetua. The penalty is
imposable in its minimum period, or from seventeen (17) years, four (4) months
and one (1) day to eighteen (18) years and eight (8) months.

11. ID.; ID.; ID.; ID.; ID.; INDETERMINATE SENTENCE LAW APPLIED IN THE
CASE AT BAR. — For purposes of the Indeterminate Sentence Law, the range of the
penalty next lower to that prescribed by the Revised Penal Code for the offense is
prision mayor in its maximum period to reclusion temporal in its medium period, or
from ten (10) years and one (1) day to seventeen (17) years and four (4) months.

DECISION

MELENCIO-HERRERA, J : p
Originally a Petition for Review, the Court resolved instead to consider the petition
as an appeal by accused, Angel "Totoy" Acaya, from the Decision of 18 February
1985 of the Regional Trial Court of Basco, Batanes, Branch XIII, finding him guilty
beyond reasonable doubt of the crime of Murder and sentencing him to reclusion
perpetua.

From the prosecution viewpoint, the facts are as follows:

"On the evening of July 16, 1983, during a wedding celebration at Barangay
San Vicente, Ibana, Batanes, Victor Abad was stabbed on the left side of the
abdomen by Angel Acaya (pp. 5-6, tsn, Nov. 21, 1984).

"Victor Abad was immediately rushed to the Batanes Hospital where he

expired on July 17, 1983 at 3:00 p.m. Cause of death was acute renal
shutdown hemorrhage, severe stab would penetrating; left upper quadrant,
abdomen; perforating stomach and lacerating omenta. Dr. Felipe Cablay, the
doctor who operated on the deceased Abad, issued a certificate of death
(Exhibit G, p. 18, records).

"Before his death, however, Victor Abad was able to name appellant Acaya
as his assailant (Exhibit T, p. 68, records).

"At his arraignment, accused, assisted by counsel, voluntary entered a plea

of guilty (pp. 2 & 3, tsn, Nov. 21, 1984).

"To establish the degree of culpability of appellant, however, the court

required further presentation of evidence.

"Convicted of the crime of murder as charged in the information, appellant

interposes the present appeal." (Appellee's Brief, pp. 1-2)

For its part, the defense, which did not present any testimonial evidence, narrates
the following as the

"Facts of the Case

"On the evening of July 16, 1983 during a wedding celebration at Barangay
San Vicente, Ivana, Batanes, while dancing the fundango with many other
participants, Victor Agagan Abad was stabbed on the left side of the
abdomen by the accused Angel Acaya, who was then under the influence of
liquor.
LLphil

"Immediately as soon as Victor Abad was stabbed, two persons seized the
right hand of the assailant Acaya, one Julius Cataluña, a close friend of the
victim and whose wife is the cousin of the victim; and one Roderico Sinag,
who wrested the knife. Many others held the other hand of the accused.

"Victor Abad was lifted from the dancing floor and was taken on a
motorcycle by Julius Cataluña and Ronald Aguto to the rural health nurse at
Ivana where Victor Abad was given first aid. He was later taken to the
 Batanes Hospital at Basco, Batanes, was operated on immediately by Dr.
Felipe Cablay, but on the following day, July 17, 1983 at 3:00 P.M., Victor
Abad died.

"From the time the knife was wrested from Angel Acaya's right hand after he
stabbed Victor Abad, there is a blackout of what happened to the assailant
Angel Acaya. The next scene of which the evidence for the prosecution was
able to prove was that Angel Acaya was lying down at the porch of a home
at Barangay San Vicente where the three policemen who were called from
the poblacion, found him sleeping. He was so drunk he could not answer to
any interrogation of the police officers. Acaya was taken to the poblacion
which is a kilometer away, almost half-dragged and half-carried by the police
officers. Upon their arrival at the poblacion, no interrogation could be taken
from Angel Acaya because his state of intoxication caused him to fall asleep
as soon as they reached the municipal jail.

"In the morning of July 17, the following day, the INP took the sworn
statement of Angel Acaya. He was asked if he remembered where he was
on the evening of the 16th day of July, 1983 and his answer was he did not,
because he was drunk. He was asked also if he knew he was apprehended
by the police and his answer was, 'No, Sir.' He also gave a negative answer
when he asked if he remembered having met one Victor Abad on the same
night. This sworn statement of Angel Acaya was presented as evidence for
the prosecution as Exhibit 'F' and adapted by the defense as Exhibit 'I.'"
(Appellant's Brief, pp. 1-2).

The Information filed against appellant for Murder on 29 July 1983 averred the
aggravating circumstances of treachery, evident premeditation, and ignominy, the
latter because the accused had committed the crime in a public place and in the
presence of many persons.

Upon arraignment, appellant entered a plea of guilty. The records disclose that the
Trial Court had advised appellant of, and that he had understood, the consequences
of his plea. Following the rulings of this Court, however, the Trial Court directed the
prosecution to present its evidence for the purpose of establishing the guilt and the
degree of culpability of the accused.

After the prosecution had presented its evidence, the defense having opted not to
present any, the lower Court convicted appellant and sentenced him to suffer the
penalty of reclusion perpetua; to indemnify the heirs of the victim in the amount of
P12,000.00; and to pay them P20,000.00 by way of moral and exemplary damages,
and costs.

Appellant assigns the following errors as having been committed by the Trial Court:

"I. The trial court acted with grave abuse of discretion and erred when it
denied the request of counsel de oficio for a reconsideration of the plea of
guilty to not guilty.

"II. The trial court acted with grave abuse of discretion when it did not
 give due course to the notice of appeal dated November 23, 1984 and filed
by counsel de oficio, before the trial court on November 26, 1984.

"III. The trial court erred when it concluded without bases in fact and in
law that ignominy was proven during the trial.

"IV. The prosecution having admitted that the accused had no

knowledge of what happened on the night of July 16, 1983 due to
intoxication, has not proven intent to kill other than the questioned plea of
guilty, the trial court should have acquitted the accused.
cdll

"V. Granting that the accused is criminally liable for the death of Victor
Abad, hence for homicide, the trial court should have appreciated the
mitigating circumstances of intoxication and voluntary surrender.

"VI. That respondent judge erred that the allegation of treachery was
duly proven by the testimony of prosecution witness.

"VII. The court erred in concluding that the qualified circumstance of

evident premeditation was proven beyond reasonable doubt.

"VIII.-Granting but not admitting that there was a proper plea of guilt, the
guilt of the accused must be based on the evidence presented by the
prosecution and not merely on the plea."

Counsel for the appellant's claim that he had requested for a reconsideration of the
plea of "guilty" to one of "not guilty" but that the Trial Court had denied the same,
is not borne out by the records. Neither does the transcript show that said Court had
orally imposed the death penalty on the date of arraignment but that it was
changed to reclusion perpetua in the written Decision that was subsequently
rendered. What does appear is that the Trial Court had informed appellant of the
possibility of the imposition of the death penalty. Besides, even assuming that there
was such a change, it was certainly more favorable to the appellant.

No adequate proof has been presented to show any deletion in, or tampering of, the
stenographic notes. Absent sufficient showing, the presumption is that official duty
has been regularly performed by the stenographer who took down the notes of the
proceedings (People vs. Arias, G.R. No. L-40531. January 27, 1981, 102 SCRA 303).

At any rate, the ultimate conviction of appellant by the Trial Court was not based on
appellant's guilty plea alone but on the evidence that said Court had required to be
presented. As it was, no less than six (6) witnesses were presented by the
prosecution in the discharge of its burden of proof. The defense, on the other hand,
did not present any testimonial evidence, which could have overcome the
incriminatory evidence of the prosecution.

While it may be that the Trial Court had failed to forward the Notice of Appeal to
this Court, the records disclose that a letter containing a copy of the Notice of Appeal
was sent by the accused to this Court on 28 October 1985 under Registered mail
No. 788 (p. 4, Rollo). Of note also is the fact that what was initially filed by defense
counsel was a Petition for Review, which this Court later considered, and is now
acting on, as an appeal (p. 16, Rollo). No prejudice whatsoever, therefore, has been
caused appellant.

Our own review and assessment of the evidence confirm the Trial Court's finding of
guilt.

The testimonies of prosecution eyewitnesses, Julius Cataluña, Rodrigo Sinag, and

Roel Barsana, adequately establish appellant's culpability. Cataluña was standing
beside the victim when he saw appellant suddenly come and stab the victim while
they were dancing prompting said witness to hold appellant's arm. After the victim
fell, Sinag, in turn, held appellant's hand, which wielded the knife. Cataluña and
Barsana, respectively testified, positively and emphatically, that they saw appellant
thrust the knife on the left side of the victim. The victim's ante mortem statement
thumbmarked with his own blood (Exh. "H"), taken by the PC investigator on the
way to the hospital, which identified appellant as the assailant, and wherein the
victim declared that he believed that he was going to die because of his stab wound,
further buttresses appellant's guilt.

What remains to be determined are the qualifying and modifying circumstances

attending the commission of the crime. llcd

Treachery was present considering the suddenness with which appellant stabbed
the victim. The latter was totally unprepared for the unexpected attack. He was
dancing at the precise time of the incident and was given absolutely no chance to
defend himself.

Evident premeditation, however, should not be appreciated, the elements thereof

not having been sufficiently proven, namely, the time when the offender
determined to commit the crime; an act manifestly indicating that the accused had
clung to his determination; and a sufficient lapse of time between such
determination and execution, to allow him to reflect upon the consequences of his
acts. Evident premeditation cannot be considered to qualify murder where it is not
shown when the plan to kill was hatched, or what time elapsed before it was carried
out (People vs. Corpus, 107 Phil. 44 [1960]).The fact that another knife was found
on the person of appellant aside from the very knife used in the commission of the
crime is no proof of "a cold and deep meditation on the plan and tenacious
persistence in the accomplishment of the criminal act" as the Trial Court had put it.
This Court has consistently held that evident premeditation must be based on
external acts and that such must be evident and not merely suspected indicating
deliberate planning (U.S. vs. Ricafor, 1 Phil. 173 [1902]; People vs. Yturriaga , 86
Phil. 534 [1950]; U.S. vs. Cornejo, 28 Phil. 457 [1914]).

The contention that since appellant pleaded guilty to the Information, the
aggravating circumstances of treachery and evident premeditation must be deemed
fully established inasmuch as a guilty plea covers both the crime as well as its
attendant circumstances, is unacceptable, in the light of the evidence negating the
presence of those circumstances. The case of People vs. Gravino (G.R. No. L-31327-
29, May 16, 1983, 122 SCRA 123) is authority for the ruling that a plea of guilty
cannot be held to include treachery and evident premeditation where the evidence
adduced does not adequately disclose the existence of those qualifying
circumstances.

Neither should the aggravating circumstance of ignominy be appreciated, defined as

"a circumstance pertaining to the moral order which adds disgrace and obloquy to
the material injury caused by the crime" (U.S. vs. Abaigar, 2 Phil. 417 [1903]). The
fact that the crime was committed in a public place and in the presence of many
persons did not necessarily tend to make the effects of the crime more humiliating
or put the offended party to shame.

Appellant's averment that intent to kill was inexistent because the accused was in a
state of intoxication, is unmeritorious. In the first place, with the plea of guilty,
appellant had admitted the commission of the unlawful act. In the second place,
proof is inadequate that appellant was intoxicated to the point of blurring his reason
and depriving him of a certain degree of control at the precise time of the stabbing.
Prosecution eyewitness Cataluña categorically testified that he did not notice that
appellant was drunk. The testimony of Sgt. Teofilo de la Isla, the police investigator,
to the effect that when he arrested appellant at around 11:00 o'clock the same
evening of the incident, the latter was very drunk and could not answer questions,
only proves the fact of intoxication after the incident but not at the precise time of
the commission of the crime. As counsel de officio himself stated in Appellant's
Brief, there was a "blockout of what happened to the assailant Angel Acaya" after
the stabbing. But, certainly, appellant's act of stabbing the victim with the use of a
deadly weapon such as a kitchen knife, producing a severe and penetrating wound
which caused his death, indicates no other intention than that of the desire to kill.
The rule is unchanged that if it is proved that the accused committed the unlawful
act charged, the presumption is that the act was done with an unlawful intent and
it is up to the appellant to rebut this presumption. That burden has not been
satisfactorily discharged in this case.

The mitigating circumstance of voluntary surrender has neither been proven. There
is no showing that the surrender of the accused was made voluntarily or
spontaneously. In fact, the defense stresses that appellant was drunk when
apprehended. The mere fact that appellant did not resist his arrest cannot be
equated with voluntary surrender (People vs. Reyes , No. L-33154, February 27,
1976, 69 SCRA 474). A surrender is not voluntary when forced by circumstances. To
be voluntary, a surrender must be spontaneous, that is, there must be an intent to
submit oneself to the authorities, either because he acknowledges his guilt or
because he wishes to save them from the trouble and expense to be necessarily
incurred in his search and capture (People vs. Sakam , 61 Phil. 27 [1934]).LexLib

The crime committed is Murder, qualified by treachery, attended by the mitigating

circumstance of plea of guilty.

Pursuant to Article 248 of the Revised Penal Code, the imposable penalty should be
reclusion perpetua, as imposed by the Trial Court. However, with the abolition of
capital punishment in the 1987 Constitution, the penalty for Murder is now
reclusion temporal in its maximum period to reclusion perpetua. The penalty is
imposable in its minimum period, or from seventeen (17) years, four (4) months
and one (1) day to eighteen (18) years and eight (8) months.

For purposes of the Indeterminate Sentence Law, the range of the penalty next
lower to that prescribed by the Revised Penal Code for the offense is prision mayor
in its maximum period to reclusion temporal in its medium period, or from ten (10)
years and one (1) day to seventeen (17) years and four (4) months.

WHEREFORE, the appealed judgment is hereby modified in that appellant, Angel

Acaya alias "Totoy Acaya," shall suffer an indeterminate penalty of ten (10) years
and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4)
months and one (1) day of reclusion temporal, as maximum, and shall indemnify
the heirs of the victim, Victor Abad, in the amount of P30,000.00. The rest of the
judgment is affirmed. Costs against appellant, Angel Acaya.
prLL

SO ORDERED.

Paras, Padilla and Sarmiento, JJ ., concur.