THIRD DIVISION

[G.R. Nos. 96368-69. October 17, 1991.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERUBIEN

Z. NABAYRA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Liberato R. Ibadlit for accused-appellant.

SYLLABUS

1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; SELF-DEFENSE;

REQUISITES. — Legitimate self-defense is acceptable only when the following
requisites are present: (1) unlawful aggression on the part of the victim; 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. (par. 1,
Article 11, Revised Penal Code).

2. REMEDIAL LAW; CREDIBILITY OF WITNESS; EVIDENCE TO BE BELIEVED

MUST NOT ONLY PROCEED FROM THE MOUTH OF A CREDIBLE WITNESS BUT
MUST BE CREDIBLE IN ITSELF. — According to the appellant, he met the victim
at the bank of the river who was carrying a sack. The victim then got a bag
from the sack. The victim opened the bag and took out a gun which he aimed at
him saying "I will shoot you, I will kill you." At this precise time, the appellant
drew his bolo from its scabbard and began hacking the victim. The scenario
depicted by the appellant is incredulous. Human instinct to preserve one's life
demands that at the time the victim took out the gun from his bag, the
appellant should have reacted to repel the imminent danger that he found
himself in. The appellant would not have stood there watching and waiting for
the victim to open a bag, take out a gun and aim at him. He would not have
awaited the shout "I will kill you" before he started to repel the action of the
victim. Such action of the victim against the appellant could have been
foreseen by a rational man considering that according to the appellant, he and
the victim were not on good terms as he was accused by the victim to have
stolen the carabao of the mother of the victim. Well-settled is the rule that
"evidence to be believed must not only proceed from the mouth of a credible
witness, but must be credible in itself such as the common experience and
observation of mankind can approve as probable under the circumstances."
(People v. Flores, 125 SCRA 244 [1983]; and other cases).
3. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCE; SELF-DEFENSE; NEGATED BY
THE MANNER OF INFLICTION AND THE NUMBER OF PHYSICAL INJURIES
SUSTAINED BY THE VICTIM; CASE AT BAR. — Moreover, the manner of infliction
and the number of physical injuries sustained by the victim during the incident
negate the self-defense posture of the appellant. As the lower court correctly
stated: "If the intention of the accused was only to defend himself, and he was
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 already able to hack the victim on the left temple, which wound was fatal
according to the doctor, he would not have inflicted further injuries on the
victim who was his uncle. The accused continued to hack the victim on his back
and even chased the victim when he ran away to escape from further torture.
When the victim fell to the ground, the accused inflicted more injuries on him,
as according to him, he wanted to kill the victim and get the gun from him (tsn.,
p. 7, April 20, 1990, M.V. Quimpo). The accused acted with murderous ferocity
when he finished the victim off. The victim appeared helpless at the hands of
the accused. He was at the compete mercy of the accused. Even Ludovico
Asiong, a witness for the defense, confirmed the fact that the victim went to the
public market of Libacao that fateful day of December 14, 1989 as it was the
market day of the town and was carrying that sack on his way home." (Joint
Decision, p. 7)
4. ID.; QUALIFYING CIRCUMSTANCES; TREACHERY; NOT APPRECIATED IN
CASE AT BAR. — The information alleges the existence of treachery and evident
premeditation qualifying the crime committed by the appellant to murder.
However, the prosecution did not present any evidence to prove the presence
of any of these qualifying circumstances. It did not present eyewitnesses to the
incident. The doctor presented as witness testified only on the number of
physical injuries sustained by the victim as a result of the hacking incident. The
two policemen presented as witnesses did not testify on the circumstances
before or during the hacking incident. The well-entrended principle is that
"treachery cannot be presumed. It must be proven as conclusively as the act of
killing itself."
5. ID.; ID.; EVIDENT PREMEDITATION; ELEMENTS. — As regard the qualifying
circumstance of evident premeditation, the following elements must be
established: 1) the time when the offender determined to commit the crime; 2)
an act manifestly indicating that he has clung to his determination; 3) sufficient
lapse of time between determination and execution to allow himself to reflect
upon the consequences of his act. (People v. Quintos, 186 SCRA 14 [1990]
citing People v. Talla, 181 SCRA 133 [1990].
6. REMEDIAL LAW; EVIDENCE; TESTIMONY OF WITNESS; RULE IN CASE OF
CONFLICT IN THE TESTIMONY OF THE POLICE OFFICER AND THE ACCUSED;
CASE AT BAR. — Anent the charge of illegal possession of firearm and
ammunition, the appellant reiterates his stance that the gun and the
ammunition taken from him belonged to the victim. He testified that at the time
the two policemen apprehended him, he was on his way to surrender himself,
the bolo he used in hacking the victim, and the gun he took from the victim to
the police authorities. The appellant's claim was, however, denied by the two
policemen who apprehended him. When confronted by Pfc. Villorente and Pat.
de Jose, the appellant did not state that the gun was taken by him from Remy
Mabayra and that he was surrendering the same to them. It was only after the
two policemen apprehended the appellant that the latter told them that he was
on his way to the municipal hall. In fact, according to Pfc. Villorente, the
appellant admitted that he owned the unlicensed gun. As between these two
conflicting testimonies, we rule in favor of the police officers. The appellant did
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 not show evidence that the police officers were prejudiced against him.
Between the biased testimony of the police officers, the latter's testimony
should prevail.

DECISION

GUTIERREZ, JR., J : p

In two (2) separate informations filed by the Provincial Prosecutor's Office of

Aklan, appellant Erubien Z. Nabayra, was charged with the crimes of murder
and illegal possession of firearm and ammunition in the Regional Trial Court of
Kalibo, Aklan. The offenses were allegedly committed as follows:
a) For Murder
"That on or about the 14th day of December, 1989, in the morning, in
Barangay Pinonoy, Municipality of Libacao, Province of Aklan, Republic
of the Philippines. and within the jurisdiction of this Honorable Court,
the above-named accused, armed with a deadly weapon consisting of
a fighting bolo, with evident premeditation and treachery, and with
intent to kill, did then and there wilfully, unlawfully and feloniously
attack, assault and wound REMY NABAYRA, thereby inflicting upon the
latter physical injuries, to wit: prLL

"1. Incised wounds — a) Forehead 3"L 0.5 Depth;

b) Left forearm-mid-lateral 2"L — 1" Depth;

c) Rt. forearm — anterior surface just above the wrist;

2. Stab wounds — a) Rt. iliac region 1.5"L — severing the

descending colon.

b) Left hypochondriac region severing part of the liver

and transverse colon.
3. Incised wounds — Occipital portion of head — 1.5"L 0.5" depth

— Back at level of the thoracic vertebrae (sic) a (sic)

severing the vertebrae;

— Level of the right elbow — 1.5"L-1" Depth

— Rt. lumbar region — 2"L-1.5 "Depth

— Left elbow — 1"L-0.5: Depth."

as per Medico-Legal Report on Physical Injuries issued by Dr. Chedy S.
Bueno, Rural Health Physician, Libacao, Aklan, hereto attached and
made an integral part of this information, which injuries caused the
death of REMY NABAYRA." (Information, pp. 1-2).

b) For illegal possession of firearm and ammunition defined and

penalized under Presidential Decree No. 1866:
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 "That on or about the 14th day of December, 1989, in the morning, in
the Poblacion, Municipality of Libacao, Province of Aklan, Republic of
the Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there wilfully, unlawfully and
feloniously have in his possession and under his custody and control
one (1) handgun, locally known as "Paltik or Pugakang" and two (2) 12
gauge live ammunitions, without having obtained the proper license,
permit or lawful authority to carry and or possess the same.
CONTRARY TO LAW". (Joint Decision, p. 2)

The two cases arose from a continuing occasion on the same date, hence they
were jointly tried by the trial court.
When arraigned, the appellant in both cases pleaded not guilty.

As regards the murder charge, the appellant admitted killing the victim, his
uncle, Remy Nabayra. He, however, interposed self-defense. With this
admission, the prosecution did not anymore present evidence to prove that the
accused killed the victim. However, since the defense would not admit all the
injuries enumerated in the information, the prosecution presented the
government doctor to testify on the injuries suffered by the victim resulting in
his death.

As regards the charge for illegal possession of firearm and ammunition, the
prosecution presented the testimonies of two (2) police officers of the Libacao
Police Force who apprehended the appellant and found in his possession a
handbag (Exhibit "C") containing a handgun (Exhibit C-1); an ammunition which
was red in color (Exhibit C-2); another ammunition (Exhibit C-3) and a sack.

The trial court narrates the prosecution's evidence as follows:

At about 11 o'clock in the morning of December 14, 1989 in the bank of
the Aklan river in Barangay Pinonoy, Libacao, Aklan, where there was a
ferry service from poblacion Libacao on the other side of the said river,
the accused Erubien Z. Nabayra boloed and killed his uncle Remy
Nabayra. The prosecution, as already stated above, had dispensed with
the presentation of evidence to prove this fact as the accused had
admitted that he was the one who inflicted the wounds on the said
victim during the said incident which resulted in the latter's death. At
about that time, Pfc. Alberto Villorente and Pat. Elmer de Jose were
patrolling the vicinity of the ferry zone and saw a group of persons near
the opposite bank of the Aklan river which is already within the
territory of Barangay Pinonoy. The said barangay is separated by the
Aklan river from poblacion Libacao. The said policemen met Ulysses
Ortega, Jr., 12 years old and boatman of the ferry boat, who informed
them that there was a hacking incident at the other side of the river.
The policemen proceeded on their way to the scene of the incident and
they met the accused Erubien Nabayra in the river bank, poblacion
side who was walking towards poblacion Libacao. They saw the clothes
and bolo of Erubien Nabayra stained with fresh blood, so they told him
to stop and put down his bag and bolo, which he heeded. The
policemen noticed a gun inside the handbag as its barrel was
protruding by one and one-half inches through the hole in the bag.
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 They confiscated the handgun (Exhibit "C" for Crim. Case No. 2999),
including the bag (Exhibit "B" for Crim. Case No. 2999), and also the
bolo (Exhibit "C" for Crim. Case No. 2998) and its scabbard (Exhibit "C-
1", Crim. Case No. 2998). When the policemen opened the handbag
and took out the gun (a homemade handgun or "paltik"), they found
out that it was loaded with one ammunition (Exhibit "C-1 " for Crim.
Case No. 2999), and another ammunition (Exhibit "C-2") was found in
the sack (Exhibit "C-3"). When asked by the policemen at the time they
met why his clothes were stained with blood, the accused answered
that he hacked his uncle Remy Nabayra Pat. Elmer de Jose went to the
scene of the incident while Pfc. Alberto Villorente kept watch over the
accused. Pat. de Jose found the victim about 50 meters from the river.
The policemen caused the victim to be brought to the Libacao Medicare
Hospital, then they proceeded to the police station with the accused
where they opened the handbag containing the gun. When the
policemen apprehended the accused in the river bank, the accused
admitted ownership of the gun. He was not however able to present
any license or permit to carry any firearm. When the policemen
confronted the accused about his bloodstained clothes and bolo, the
accused did not tell them that he was surrendering because he hacked
his uncle Remy Nabayra." (Joint Decision, pp. 3-5) cdll

On the other hand, the appellant's version of the incident is summarized by the
trial court as follows:
"After plowing his corn field in Barangay Pinonoy, Libacao, Aklan, at
past 10 o'clock in the morning of December 14, 1989, the accused
went to the Aklan River, about 30 meters from his farm, to wash. In the
river bank, he met the victim Remy Nabayra, his uncle. The said victim
got a bag from inside the sack he was carrying and after opening the
bag, he took out a gun, a 'paltik' pistol, and aimed it at the accused,
saying, 'I will shoot, I will kill you.' At this juncture, the accused drew
his bolo from its scabbard tied to the left side of his waist and hacked
Remy Nabayra, hitting the latter on the left temple. Remy Nabayra
turned around after being hit, and the accused hacked him again,
hitting him at his back. Then the victim ran away and the accused
chased him. The victim fell to the ground and the accused stabbed him
again. The accused got the gun which the victim was holding with his
right hand beneath his back. The victim was not able to fire his gun
even once. The accused place the gun inside the bag which the victim
was also holding and crossed the river by wading, with the intention of
going to the municipal hall of Libacao in order to surrender the gun. On
the way, the accused met Pfc. Alberto Villorente and Pat. Elmer de Jose
who told him to put down the gun and bolo, which he did. The accused
identified the bolo, Exhibit "C" (for Crim. Case No. 2998), and admitted
it was the same bolo he used in hacking and stabbing Remy Nabayra
(tsn., p. 9, April 20, 1990, M.V. Quimpo). He surrendered the gun and
the bolo to the policemen. The accused was not in good terms with
Remy Nabayra before December 14, 1989 because the latter was
accusing him of having stolen the carabao of Anunciacion Orbista
Nabayra, mother of Remy Nabayra and grandmother of the accused.
On cross-examination, the accused said the police stopped him and
arrested him; that he did not tell the policemen he was surrendering to
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 them; that it was already while he was in the hands of the policemen
and the gun was already in the possession of the policemen when he
told them he was going to the municipal building (tsn., pp. 3-5, May 2,
1990, M.V. Quimpo). (Joint Decision, p. 5)

The appellant was found guilty in both cases, to wit:

"WHEREFORE, after a meticulous assessment of the evidence on
record, this Court finds, and so holds, that the accused Erubien Z.
Nabayra is guilty beyond reasonable doubt, as principal, of the crime of
Murder in Criminal Case No. 2998, defined and penalized in Article 248
of the Revised Penal Code, and of Illegal Possession of Firearm and
Ammunition in Criminal Case No. 2999, defined and penalized by
Presidential Decree No. 1866, and hereby sentences him as follows:
For the crime of Murder, the penalty of Reclusion Perpetua, to
indemnify the heirs of Remy Nabayra the sum of P50,000.00, as death
indemnity.
For the crime of Illegal Possession of Firearm and Ammunition, the
penalty of imprisonment ranging from EIGHTEEN (18) YEARS, EIGHT (8)
MONTHS AND ONE (1) DAY of Reclusion Temporal as minimum to
TWENTY (20) YEARS of Reclusion Temporal as maximum, and to pay
the costs.

The firearm and ammunition, Exhibits C, C-1 and C-2, are ordered
forfeited in favor of the government to be disposed of according to
law."

The appellant now contends:

"1. THE LOWER COURT ERRED IN FINDING THAT THE ACCUSED IS
THE AGGRESSOR.
2. THE LOWER COURT ERRED IN FINDING THAT THE GUN WHICH IS
THE SUBJECT OF CRIMINAL CASE 2990 BELONGS TO THE ACCUSED." (P.
3, Brief for the Accused-Appellant).

The appellant insists that he killed his uncle Remy Nabayra in self-defense. In
view of this admission it is incumbent upon him to proffer strong clear evidence
to prove this justifying circumstance to be relieved of any criminal liability.
(People v. Bayocot, 174 SCRA 285 [1989]; People v. Masangkay, 157 SCRA 320
[1988]; People v. Abagon, 161 SCRA 255 [1988]; People v. Tesorero, 71 SCRA
579 [1976]; People v. Llamera, 51 SCRA 48, [1973]; People v. Bauden, 77 Phil.
105 [1946]; People v. Ansoyon, 75 Phil. 772 [1946] cited in People v. Bausing,
et al., G.R. No. 64965 July 18, 1991. LibLex

Legitimate self-defense is acceptable only when the following requisites are

present: 1) unlawful aggression on the part of the victim; 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. (par. 1, Article 11,
Revised Penal Code).
The appellant claims that the victim was the unlawful aggressor since the latter
was the first to draw his gun and tried to shoot him. Unluckily for the victim, the
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 gun did not fire prompting him to draw his bolo and hacked him in self-defense.

The circumstances as related by the appellant as regards the encounter

between him and the victim and the physical evidence on record however, belie
the above asseverations.

According to the appellant, he met the victim at the bank of the river who was
carrying a sack. The victim then got a bag from the sacks. The victim opened
the bag and took out a gun which he aimed at him saying "I will shoot you, I will
kill you." At this precise time, the appellant drew his bolo from its scabbard and
began hacking the victim.
The scenario depicted by the appellant is incredulous. Human instinct to
preserve one's life demands that at time the victim took out the gun from his
bag, the appellant should have reacted to repel the imminent danger that he
found himself in. The appellant would not have stood there watching and
waiting for the victim to open a bag, take out a gun and aim at him. He would
not have awaited the shout "I will kill you" before he started to repel the action
of the victim. Such action of the victim against the appellant could have been
foreseen by a rational man considering that according to the appellant, he and
the victim were not on good terms as he was accused by the victim to have
stolen the carabao of the mother of the victim. Well-settled is the rule that
"evidence to be believed must not only proceed from the mouth of a credible
witness, but must be credible in itself such as the common experience and
observation of mankind can approve as probable under the circumstances."
(People v. Flores, 125 SCRA 244 [1983]; People v. Torio, 126 SCRA 265 [1983];
Borromeo v. Court of Appeals, 131 SCRA 318 [1984].
Moreover, the manner of infliction and the number of physical injuries sustained
by the victim during the incident negate the self-defense posture of the
appellant. As the lower court correctly stated:
"If the intention of the accused was only to defend himself, and he was
already able to hack the victim on the left temple, which wound was
fatal according to the doctor, he would not have inflicted further
injuries on the victim who was his uncle. The accused continued to
hack the victim on his back and even chased the victim when he ran
away to escape from further torture. When the victim fell to the
ground, the accused inflicted more injuries on him, as according to him,
he wanted to kill the victim and get the gun from him (tsn., p. 7, April
20, 1990, M.V. Quimpo). The accused acted with murderous ferocity
when he finished the victim off. The victim appeared helpless at the
hands of the accused. He was at the complete mercy of the accused.
Even Ludovico Asiong a witness for the defense, confirmed the fact
that the victim went to the public market of Libacao that fateful day of
December 14, 1989 as it was the market day of the town and was
carrying that sack on his way home." (Joint Decision, p. 7)

However, we agree with the Solicitor General that the crime committed by the
appellant was homicide and not murder.
The information alleges the existence of treachery and evident premeditation
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 qualifying the crime committed by the appellant to murder. However, the
prosecution did not present any evidence to prove the presence of any of these
qualifying circumstances. It did not present eyewitnesses to the incident. The
doctor presented as witness testified only on the number of physical injuries
sustained by the victim as a result of the hacking incident. The two policemen
presented as witnesses did not testify on the circumstances before or during
the hacking incident.
In view of these circumstances the lower court erred in appreciating treachery
or evident premeditation to qualify the crime to murder. The well-entrenched
principle is that "treachery cannot be presumed. It must be proven as
conclusively as the act of killing itself." (People vs. Caldito, 182 SCRA 66 [1990]
citing People v. Manalo, 148 SCRA 98 [1987]). As regards the qualifying
circumstance of evident premeditation, the following elements must be
established: 1) the time when the offender determined to commit the crime; 2)
an act manifestly indicating that he has clung to his determination; 3) sufficient
lapse of time between determination and execution to allow himself to reflect
upon the consequences of his act. (People v. Quintos, 186 SCRA 14 [1990]
citing People v. Talla, 181 SCRA 133 [1990]. Cdpr

Anent the charge of illegal possession of firearm and ammunition, the appellant
reiterates his stance that the gun and the ammunition taken from him
belonged to the victim. He testified that at the time the two policemen
apprehended him, he was on his way to surrender himself, the bolo he used in
hacking the victim, and the gun he took from the victim to the police
authorities.
The appellant's claim was, however, denied by the two policemen who
apprehended him. When confronted by Pfc. Villorente and Pat. de Jose, the
appellant did not state that the gun was taken by him from Remy Nabayra and
that he was surrendering the same to them. It was only after the two policemen
apprehended the appellant that the latter told them that he was on his way to
the municipal hall. In fact, according to Pfc. Villorente, the appellant admitted
that he owned the unlicensed gun. Villorente testified:

"xxx xxx xxx

Q After finding out that he was carrying a handgun locally known as
'paltik', did you ask him if he has any license for the possession of
the same?
A I did not ask him, instead we just brought him to our station.
xxx xxx xxx
Q Did he produce any license in your presence authorizing him to
have that firearm?
A There is none, sir.

Q Even in the station he did not present any license to carry said
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 firearm?
A No, sir.
xxx xxx xxx

(TSN, February 26, 1990, pp. 7-8).

Q Did the accused in this case have any companion during the time
that you arrested him?
A None.
Q Did he accept ownership of this handbag as well as the handgun?
A Yes, sir. He took hid (sic) by putting it down .
xxx xxx xxx

(TSN, February 27, 1990, p. 7; emphasis supplied).

As between these two conflicting testimonies, we rule in favor of the police

officers. The appellant did not show evidence that the police officers were
prejudiced against him. Between the biased testimony of the appellant and the
unprejudiced testimony of the police officers, the latter's testimony should
prevail. ( People v. Canizares, 107 SCRA 296 [1981]).
WHEREFORE, the Court renders judgment as follows:

1. The decision in G.R. No. 96368 is MODIFIED by holding appellant Erubien

Z. Nabayra guilty of HOMICIDE. There being neither generic mitigating nor an
aggravating circumstance present, the appellant shall suffer the penalty of
imprisonment for an indeterminate period ranging from TEN (10) YEARS of
prision mayor as minimum to SEVENTEEN (17) YEARS and FOUR (4) MONTHS of
reclusion temporal as maximum;
2. In G.R. No. 96369, the questioned decision is AFFIRMED; and
In all other respects, the questioned joint decision is AFFIRMED. prLL

SO ORDERED.

Fernan, C.J., Feliciano, Bidin and Davide, Jr., JJ., concur.

CD Technologies Asia, Inc. © 2021 cdasiaonline.com