EN BANC

[G.R. No. 129069. October 17, 2001.]

PEOPLE OF THE PHILIPPINES , appellee, vs . JULIO RECTO y ROBEA ,

appellant.

The Solicitor General for appellee.

Peter M. Montojo and Gordon S. Montojo for appellant.

SYNOPSIS

Four Informations were led against appellant herein. The charges were two
counts of direct assault with frustrated murder for in icting gunshot wounds upon a
barangay tanod and a barangay captain, direct assault with murder for the killing of a
barangay kagawad, and murder for the death of one Emiliano Santos. The last charge
led against the appellant was illegal possession of rearm and ammunition. When
arraigned on all the ve charges appellant pleaded not guilty. In due course, he was
tried and, thereafter, sentenced. The appellant was convicted of four (4) crimes: two
counts of the complex crime of quali ed direct assault with frustrated homicide, one
count of the complex crime of quali ed direct assault with murder, and one count of
homicide. The trial court found that appellant had red at a barangay tanod, Melchor
Recto, who was at the crime scene "on the occasion of the performance of his o cial
duties. "It added that appellant had shot a barangay captain, Percival Orbe, also "on the
occasion of the performance of his o cial duties." It ruled out treachery in the killing of
Emiliano Santos, because there had been a gun duel between him and appellant.
However, it convicted and sentenced appellant to death for the murder of Antonio
Macalipay, a barangay kagawad. Due to the imposition of the death penalty upon the
appellant, the case reached the Supreme Court for mandatory and automatic review.
Appellant alleged that he committed the crimes attributed to him in self-defense
and in defense of his uncle, Cornelio Regis, Jr. The appellant, however, miserably failed
to discharge the burden of proving his defenses. Without unlawful aggression on the
part of the victim, there can be no viable self-defense or defense of a relative. In this
case the appellant proved to be the aggressor. However, the Court ruled that the trial
court erred in convicting appellant of quali ed direct assault with frustrated homicide
for shooting Melchor Recto, a barangay chief tanod. Melchor was not engaged in the
performance of his o cial duties nor was he attacked on the occasion thereof as a
barangay chief tanod but as a mere bystander. Thus, the attack on him did not amount
to direct assault. Appellant's liability amounted only to attempted, not frustrated,
homicide. The trial court was correct in ruling that the attack on the barangay captain, a
person in authority, amounted to quali ed direct assault because he was attacked on
the occasion of the performance of his duty. Appellant should, however, be convicted of
the complex crime of quali ed direct assault with attempted homicide. As to the death
of his two victims, Santos and Macalipay, the Court found appellant guilty only of
homicide. At the time of the incident, appellant's action indicated the imminence of
violence was visible to his would-be victims. Absent treachery, the killing was homicide
and not murder. Considering that Antonio Macalipay was a kagawad who was in the
actual performance of his duties when he was shot, the attack on him constituted
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 direct assault. The Supreme Court sustained appellant's conviction but modi ed the
penalties in accordance with the findings of his liability.

SYLLABUS

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

DEFENSE OF RELATIVE; REQUISITES. — By invoking self-defense and defense of a relative,
appellant plainly admits that he killed Antonio Macalipay and Emiliano "Renato" Santos and
red the shots that injured Melchor Recto and Percival Orbe. Thus, appellant has shifted
the burden of evidence to himself. Consequently, to escape criminal liability, he must prove,
by clear and convincing evidence, the existence of the essential requisites of self-defense;
namely, (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 su cient provocation on the part of
the person resorting to self-defense. For defense of a relative to prosper, appellant must
prove the concurrence of the rst and the second requisites of self-defense and "the
further requisite, in case the provocation was given by the person attacked, that the one
making the defense had no part therein."
2. ID.; ID.; ID.; NEGATED BY THE ABSENCE OF UNLAWFUL AGGRESSION ON THE
PART OF THE VICTIM; CASE AT BAR. — Without unlawful aggression on the part of the
victim, there can be no viable self-defense or defense of a relative. "There is unlawful
aggression when the peril to one's life, limb or right is either actual or imminent. There
must be actual force or actual use of weapon." In this case, Antonio Macalipay was
unarmed and actually trying to pacify appellant when the latter shot him. After shooting
Antonio, appellant again cocked his gun, pointed it at Emiliano Santos and shot him. The
latter's act of drawing his gun and ring at him was merely self-defense. As for Melchor
Recto and Percival Orbe, no aggression ever emanated from them during the entire
incident. They were unarmed and in fact already running away from appellant when he shot
them. Clearly, there was no unlawful aggression from any of the victims.
3. ID.; CRIMES AGAINST PUBLIC ORDER; DIRECT ASSAULT; WHEN COMMITTED;
ELEMENTS. — Direct assault, a crime against public order, may be committed in two ways:
first, by "any person or persons who, without a public uprising, shall employ force or
intimidation for the attainment of any of the purposes enumerated in de ning the crimes
of rebellion and sedition"; and second, by any person or persons who, without a public
uprising, "shall attack, employ force, or seriously intimidate or resist any person in authority
or any of his agents, while engaged in the performance of o cial duties, or on occasion of
such performance." The rst mode is tantamount to rebellion or sedition, without the
element of public uprising. The second mode, on the other hand, is the more common form
of assault, and is aggravated when: (a) the assault is committed with a weapon, or (b)
when the offender is a public o cer or employee, or (c) when the offender lays a hand
upon a person in authority.
4. ID.; ID.; ID.; ID.; AGENT OF A PERSON IN AUTHORITY; DEFINED AND
CONSTRUED; APPLICATION IN CASE AT BAR. — An agent of a person in authority is "any
person who, by direct provision of law or by election or by appointment by competent
authority, is charged with the maintenance of public order and the protection and security
of life and property, such as barrio councilman, barrio policeman and barangay leader, and
any person who comes to the aid of persons in authority." In the case at bar, the victim,
Melchor Recto — being then the barangay chief tanod of Ambulong, Magdiwang, Romblon
— was clearly an agent of a person in authority. However, contrary to the ndings of the
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 trial court, he was not "engaged in the performance of his official duties" at the time he was
shot. Neither was he attacked "on the occasion of such performance," as we will now
show. It must be emphasized that Melchor Recto was on his way home when he happened
to pass by the bodega of the Rance couple. Clearly, from his arrival at the scene of the
crime to his departure therefrom, Melchor was not engaged in the performance of his
official duties. Neither was he attacked on the occasion thereof.
5. ID.; ATTEMPTED HOMICIDE; PRESENT WHEN THE LAST ACT NECESSARY TO
PRODUCE HOMICIDE HAS NOT BEEN PERFORMED BY THE OFFENDER; CASE AT BAR. —
Unquestionably, Melchor Recto was a barangay chief tanod; however, at the crime scene
he was a mere bystander. Apparently, he was not acting and had no occasion to act in the
performance of his o cial duties that afternoon. Thus, the attack on him did not amount
to direct assault. We now determine the criminal liability of appellant with respect to the
attack. He shot Melchor only once, but the latter sustained ve gunshot entry wounds all
located at his backside, at the vicinity of his buttocks. Because the gun used by the former
was a de sabog , each bullet contained several pellets inside. In other words, a single slot
from a de sabog results in the spewing of several pellets. The nature of the weapon used
for the attack and the direction at which it was aimed — the victim's back — unmistakably
showed appellant's intent to kill. However, for reasons other than his own desistance,
appellant was not able to perform all the acts of execution necessary to consummate the
killing, since the wounds he in icted were not mortal. In United States v. Eduave, this Court
has held that if the wounds would not normally cause death, then the last act necessary to
produce homicide has not been performed by the offender. Thus, appellant's liability
amounted only to attempted, not frustrated homicide.
6. ID.; ID.; IMPOSABLE PENALTY. — The penalty that is lower by two degrees
than that prescribed by law for consummated homicide shall be imposed upon appellant.
After applying the Indeterminate Sentence Law, it shall be taken from the medium period,
since there were no aggravating or mitigating circumstances proven.
7. ID.; FRUSTRATED FELONY; DEFINED. — A felony "is frustrated when the
offender performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes independent
of the will of the perpetrator."
8. ID.; QUALIFIED DIRECT ASSAULT WITH ATTEMPTED HOMICIDE; PRESENT IN
CASE AT BAR; IMPOSABLE PENALTY. — In this case, the nature of the weapon used by
appellant unmistakably shows that he intended to kill Orbe. However, like the wounds
in icted by the accused on Melchor Recto, those on Orbe were not fatal. As evidenced by
the Medico-Legal Certi cate prepared by Dr. Ramon D. Villanueva of the Romblon
Provincial Hospital and the testimony given by Dr. Giovannie C. Fondevilla of the same
hospital, Orbe sustained several gunshot wounds in the vicinity of his right elbow. Those
injuries could not have caused his death. Moreover, according to Dr. Fondevilla, no surgical
intervention was required; only medication was given to him to prevent any secondary
infection from setting in. Evidently, appellant had not yet been able to perform all the acts
of execution necessary to bring about the death of Orbe, because the latter was able to run
away after being red at. Although appellant had already directly commenced the
commission of a felony by overt acts (shooting Orbe with a de sabog ), he was not able to
consummate that felony for some reason other than his spontaneous desistance. Thus, he
committed attempted homicide. Given these circumstances, appellant should therefore be
convicted of the complex crime of quali ed direct assault with attempted homicide. To be
imposed therefor should be the penalty for the most serious crime — in this case quali ed
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 direct assault — the same to be imposed in its maximum period. The Indeterminate
Sentence Law should also be applied in this case.
9. ID.; QUALIFYING CIRCUMSTANCES; TREACHERY; DEFINED; NOT PRESENT IN
CASE AT BAR. — Section 16 of Article 14 of the Revised Penal Code states that "there is
treachery when the offender commits any of 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." In this case, appellant was out in the open during the entire span of time from the
heated discussion, to the brewing of the violence, and up to the shooting of Macalipay. At
the time, his every action, which indicated the imminence of more violence, was visible to
them — to the victim and the latter's companions. Appellant was actually vulnerable to any
attack that they could have made at the time, had they chosen to. His mode of attack was
therefore not without risk to himself. Absent treachery, the killing is homicide, not murder.
Evidently, the victim had all the opportunity to escape or defend himself from the
aggression that was to ensue, yet chose not to grab the opportunity and instead placed
himself in a position more open to attack. Equally important, his vulnerable position had
not been deliberately sought by appellant. It was thrust on the latter by the former himself.
In short, appellant did not deliberately choose the mode of attack to kill the victim with
impunity and without risk to himself.
10. ID.; COMPLEX CRIME; QUALIFIED DIRECT ASSAULT WITH HOMICIDE;
IMPOSABLE PENALTY; CASE AT BAR. — Considering that Antonio Macalipay was a
kagawad who was in the actual performance of his duties when he was shot, the attack on
him constituted direct assault. Applying the provisions of Articles 148 (direct assault), 249
(homicide) and 48 (penalty for complex crimes), appellant should be held liable for the
complex crime of quali ed direct assault with homicide. The penalty to be imposed on him
should be for homicide, which is the more serious crime, to be imposed in the maximum
period. This penalty shall comprise the maximum of his indeterminate sentence, and the
minimum shall be within the range of the penalty next lower than that prescribed for
homicide.

DECISION

PANGANIBAN , J : p

Treachery cannot be appreciated to qualify a killing to murder, if the accused has not
deliberately sought to attack the vulnerability of the victim. In the present case, the latter
evidently had the opportunity to escape or to defend himself, but chose not to grab the
opportunity; instead, he placed himself in a position more open to attack.
The Case
For automatic review by this Court is the Decision 1 dated April 2, 1997,
promulgated by the Regional Trial Court (RTC) of Romblon (Branch 81), which found Julio
Recto y Robea guilty beyond reasonable doubt of (1) two counts of the complex crime of
quali ed direct assault with frustrated homicide (Criminal Case Nos. 1970 and 1971), (2)
the complex crime of quali ed direct assault with murder (Criminal Case No. 1972), and
(3) homicide (Criminal Case No. 1973). The decretal portion of the RTC Decision reads
follows:
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 "WHEREFORE, in Criminal Case No. 1970, this Court nds accused JULIO
RECTO GUILTY beyond reasonable doubt of the complex crime of quali ed
[d]irect [a]ssault [w]ith [f]rustrated [h]omicide and hereby sentences him to suffer
the indeterminate penalty of from eight (8) years and one (1) day of prision
mayor, as minimum, to ten (10) years and one (1) day of prision mayor, as
maximum, with the accessory penalties of the law, and to pay the costs.
"In Criminal Case No. 1971, this Court nds accused JULIO RECTO GUILTY
beyond reasonable doubt of the complex crime of quali ed [d]irect [a]ssault [w]ith
[f]rustrated [h]omicide and hereby sentences him to suffer the indeterminate
penalty of from eight (8) years and one (1) day of prision mayor, as minimum, to
ten (10) years and one (1) day of prision mayor, as maximum, with the accessory
penalties of the law, and to pay the costs.

"In Criminal Case No. 1972, this Court nds co-accused JULIO RECTO
GUILTY beyond reasonable doubt of the complex crime of quali ed [d]irect
[a]ssault [w]ith [m]urder and hereby sentences him to suffer the supreme penalty
of DEATH. He is ordered to pay the heirs of the victim ANTONIO MACALIPAY the
sum of P50,000.00 as indemnity for his death, without subsidiary imprisonment
in case of insolvency, and to pay the costs.
xxx xxx xxx

"In Criminal Case No. 1973, this Court nds co-accused JULIO RECTO
GUILTY beyond reasonable doubt of the crime of [h]omicide and hereby
sentences him to suffer the indeterminate penalty of from eight (8) years and one
(1) day of prision mayor, as minimum, to thirteen (13) years, nine (9) months and
ten (10) days of reclusion temporal, as maximum, with the accessory penalties of
the law, and he is ordered to pay the heirs of the victim EMILIANO 'RENATO'
SANTOS, alias REY, the sum of P50,000.00 as indemnity for his death, without
subsidiary imprisonment in case of insolvency, and to pay the costs.
xxx xxx xxx

"The 'pugakang' or homemade shotgun with one (1) live ammunition (Exh.
C); twelve (12) gauge live ammunition (Exh. C-1); the revolver together with the
three (3) live bullets and two (2) empty shells (Exhs. D, D-1 to D-5, respectively)
are confiscated in favor of the government.

"After the judgment shall have become nal, the [o] cer-in-[c]harge, O ce
of the Clerk of Court, this Court, is ordered to deliver and deposit all the foregoing
exhibits to the [p]rovincial [d]irector, PNP, of the Province of Romblon properly
receipted. Thereafter, the receipt must be attached to any of the records of these
cases and shall form part of these records.

"The period of preventive imprisonment both accused had undergone shall

be credited in their favor to its full extent and the penalties herein imposed shall
be served successively in accordance with Articles 29 and 70, respectively, of the
Revised Penal Code, as amended." 2

On September 22, 1994, four (4) Informations, 3 all signed by State Prosecutor II
Felix R. Rocero, were led against appellant. The fth Information was dated October 18,
1994.
The Informations in Criminal Case Nos. 1970 and 1971 charged appellant with
direct assault with frustrated murder, as follows:
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 Criminal Case No. 1970
"That on or about the 18th day of April 1994, at around 5:00 o'clock in the
afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of
Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said
accused, with intent to kill, did then and there, by means of treachery, wilfully,
unlawfully and feloniously attack, assault, and shoot with a shotgun locally
called 'pugakang' one MELCHOR RECTO, knowing that the latter is a duly
appointed [b]arangay [c]hief [t]anod of Ambulong, Magdiwang, Romblon, while he
was engaged in the performance of his o cial duties, in icting upon the latter
gunshot wounds in different parts of his body, thus performing all the acts of
execution which should produce the felony of murder as a consequence, but
nevertheless, did not produce it by reason of causes independent of the will of the
accused and that is by the timely and able medical assistance rendered to the
victim which prevented his death." 4

Criminal Case No. 1971

"That on or about the 18th day of April 1994, at around 5:00 o'clock in the
afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of
Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said
accused, with intent to kill, did then and there, by means of treachery, wilfully,
unlawfully and feloniously attack, assault, and shoot with a shotgun locally
called 'pugakang' one Barangay Captain PERCIVAL ORBE, knowing that the latter
is a duly elected barangay captain of Ambulong, Magdiwang, Romblon, while he
was engaged in the performance of his o cial duties, in icting upon the latter
gunshot wounds in different parts of his body, thus performing all the acts of
execution which should produce the felony of murder as a consequence, but
nevertheless, did not produce it by reason of causes independent of the will of the
accused and that is by the timely and able medical assistance rendered to the
victim which prevented his death." 5

The Information 6 in Criminal Case No. 1972, which charged appellant with direct
assault with murder, was worded thus:
"That on or about the 18th day of April 1994, at around 5:00 o'clock in the
afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of
Romblon, Philippines, and within the jurisdiction of this [H]onorable Court, the
said accused with intent to kill, conspiring, confederating and mutually helping
each other, did then and there, by means of treachery, willfully, unlawfully and
feloniously attack, assault and shoot with a shotgun locally called 'pugakang'
and strike with a long bolo, one ANTONIO MACALIPAY, knowing that the latter is a
duly elected [b]arangay [k]agawad of Ambulong, Magdiwang, Romblon, while he
was engaged in the performance of his o cial duties, in icting upon the latter
mortal wounds in different parts of his body which were the cause of his untimely
death." 7

In the Information 8 in Criminal Case No. 1973, appellant was charged with murder,
as indicated hereunder:
"That on or about the 18th day of April 1994, at around 5:00 o'clock in the
afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of
Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said
accused, with intent to kill, did then and there, by means of treachery, wilfully,
unlawfully and feloniously attack, assault and shoot with a shotgun locally called
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 'pugakang' and strike with a long bolo, one EMILIANO 'RENATO' SANTOS, 9 alias
EMY, in icting upon the latter mortal injuries in different parts of his body which
were the direct and immediate cause of his death." 1 0

Finally, appellant was charged with illegal possession of rearm and ammunition in
the Information in Criminal Case No. 1975, which we quote:
"That on or about the 18th day of April 1994, at around 5:00 o'clock in the
afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of
Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said
accused, with intent to kill, did then and there wilfully, unlawfully and feloniously
have in his possession and under his custody and control, one (1) handgun
locally called 'pugakang' with one live ammunition, which he used in killing
Barangay Kagawad Antonio Macalipay and Emiliano 'Renato' Santos and [which
was] confiscated by the police authorities." 1 1

When arraigned on all the ve charges on November 24, 1994, appellant, with the
assistance of his counsel, 1 2 pleaded "not guilty." 1 3 In due course, he was tried and,
thereafter, sentenced. cDCaHA

The Facts
Version of the Prosecution
The O ce of Solicitor General summarized the evidence for the prosecution in this
wise: 1 4
"In the early afternoon of April 18, 1994 at Ambulong, Magdiwang, Sibuyan
Island, Romblon, Barangay Captain Percival Orbe was in his residence together
with Barangay Kagawad Antonio Macalipay and Barangay Tanod Melchor Recto,
appellant's cousin. They were trying to settle a land dispute involving Linda Rance
and Cornelio Regis, Jr. While the meeting was in progress, Orbe was summoned
by SPO4 Fortunato Rafol to proceed to the bodega of Rance.
"There, they noticed that the padlock of the bodega was destroyed, and the
palay stored therein, stolen. Forthwith, Barangay Kagawad Macalipay, who
happened to be the chairman of the Barangay Agrarian Reform Committee
(BARC), conducted an investigation.

"SPO4 Rafol and SPO1 Male, also made their investigation and reported
their ndings to Linda Rance. At this point, Barangay Tanod Melchor Recto
passed by. He saw SPO4 Rafol, Wilfredo Arce, [S]pouses Crestito and Linda Rance
at the bodega. He went to Barangay Captain Orbe and inquired why they were
there. Barangay Captain Orbe told him that the padlock of the bodega was
destroyed and the palay , stolen. Orbe requested Melchor Recto to stay as he
might be needed. Thereupon, Barangay Tanod Melchor Recto began his own
ocular investigation.
"While SPO4 Rafol and SPO1 Male were leaving the premises, the group of
[A]ppellant Julio Recto, Cornelio Regis, Jr., Dante Regis, Melvar Relox, Teodoro de
la Serna, Enrica Regis and Nida Regis arrived. The group stopped at the rst
'trampa' near the bodega. Barangay Captain Orbe advised them not to create
trouble, but, Dante Regis pulled a piece of wood and threw it towards them.
Thereafter, [A]ppellant Recto, while holding a balisong or fan knife, approached
Barangay Captain Orbe. The latter responded by telling the former to surrender the
balisong. Appellant stepped backward, opened his jacket and pulled out a gun, a
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 de sabog. Upon seeing the gun, Barangay Captain Orbe retreated, while Barangay
Kagawad Antonio Macalipay stepped forward with both arms raised and uttered
the words: 'Do not do it. We'll just settle this. (Ayoson ta lang ine).' Julio Recto,
however, immediately pulled the trigger, hitting Barangay Kagawad Macalipay,
causing him to fall down on the ground. Then Cornelio Regis, Jr. approached the
fallen Macalipay and ipped his bolo at the latter who rolled and fell into the rice
paddy.

"Melchor Recto saw the shooting from his hiding place behind a concrete
pillar. He then ran inside the old dilapidated bathroom of the bodega. Barangay
Captain Orbe also followed. Inside the bathroom, Melchor Recto peeped through
the window and saw [A]ppellant Recto re his gun at Emilio Santos. Santos also
red his revolver at appellant and later, turned around and crawled. While
crawling, Santos red another shot towards Regis, Jr[.], but, the latter was able to
reach and hack the former with a bolo. TaCSAD

"Amidst the din, Percival Orbe and Melchor Recto heard [A]ppellant Julio
Recto saying: 'Where is that kapitan?' When Melchor could no longer see Julio
Recto, he jumped out of the bathroom window and ran. While running, Julio Recto
shot him hitting the latter's thigh. Barangay Captain Orbe also got out of the
bathroom through the top and landed [o]nto the rice eld. Before he could take a
step, he was also shot by [A]ppellant Julio Recto at his right elbow, but was still
able to continue running and cross the southern portion of the rice eld. He caught
up with the wounded Melchor Recto and both went their separate ways. On the
other hand, both Barangay Kagawad Antonio Macalipay and Emiliano 'Renato'
Santos died due to multiple wounds in icted on them by herein appellant."
(citations omitted)

Version of the Defense

On the other hand, the trial court presented appellant's version of the incident, as
follows: 1 5
". . . . Julio Recto interposed self-defense and defense of his co-accused
Cornelio Regis, Jr. . . . According to co-accused Julio Recto they were berated at
about 12 meters away from the bodega and it was there that the late Emiliano
Santos shot co-accused Cornelio Regis, Jr. and he was hit and he (Julio) retreated
two (2) steps backward. Then, he took two (2) steps forward and said why are
you like that. Alberto Rance, the son of Mrs. Linda Rance, shot him, hitting him on
his left side. He ran towards Alberto Rance who shot him with the latter behind the
concrete porch holding his gun with his two (2) hands resting on the concrete wall
(porch) of the bodega, and with Emiliano Santos also holding his gun [which] he
used in shooting Regis, Jr. The distance between Alberto Rance and the unarmed
Julio Recto was 11 1/2 meters when . . . Julio Recto r[a]n towards Alberto Rance[;]
the latter ran and he saw Wilfredo Arce [turn] and [pick] up a gun and he grabbed
the gun and while pulling it, it red and he did not know whether it hit somebody.
Emiliano Santos incredibly was no longer there to shoot him. However, Julio
Recto was able to take possession of this gun from Wilfredo Arce, took cover
behind a post and still managed to shoot Santos who was somewhere else. He
threw the gun later on the disputed land and ran to the direction of the banana
plantation of Regis, Jr. and he reached his house. Both of them were outside the
house of Regis, Jr. when . . . [M]aritime [P]oliceman Morada and Galin arrived. . . .
." (citations omitted, underscoring in original) SaIEcA

Ruling of the Trial Court

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 The trial court found that appellant had red at a barangay tanod, Melchor Recto,
who was at the crime scene "on the occasion of the performance of his o cial duties." 1 6
It added that appellant had shot a barangay captain, Percival Orbe, also "on the occasion of
the performance of his official duties." 1 7
The lower court ruled out treachery in the killing of Emiliano Santos, because there
had been a gun duel between him and appellant. However, it convicted and sentenced
appellant to death for the murder of Antonio Macalipay.
Because of the trial court's imposition of the death penalty, this review by the
Supreme Court is mandatory and automatic, without need of a notice of appeal. 1 8
Assignment of Errors
In his Brief, appellant faults the court a quo with the following alleged errors: 1 9
I
"The lower court erred in nding the accused-appellant guilty of direct
assault in Criminal Case Nos. 1970 and 1972 which accordingly resulted in his
being convicted of complex crimes in those cases.

II
"The lower court erred in nding the presence of the qualifying
circumstance of treachery in Criminal Case No. 1972 which accordingly resulted
in his being convicted of murder in that case."

In the interest of justice and despite appellant's anemic Brief, we deem it wise to
review the entire assailed Decision, particularly the crimes imputed and the penalties
imposed by the trial court. EHITaS

The Court's Ruling

The Decision of the trial court should be MODIFIED.
Self-Defense and Defense of a Relative
Appellant contends that he committed the crimes attributed to him in self-defense
and in defense of his uncle, Cornelio Regis, Jr.
By invoking self-defense and defense of a relative, appellant plainly admits that he
killed Antonio Macalipay and Emiliano "Renato" Santos and red the shots that injured
Melchor Recto and Percival Orbe. Thus, appellant has shifted the burden of evidence to
himself. Consequently, to escape criminal liability, he must prove, by clear and convincing
evidence, the existence of the essential requisites of self-defense; namely, (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 su cient provocation on the part of the person resorting
to self-defense. 2 0 For defense of a relative 2 1 to prosper, appellant must prove the
concurrence of the rst and the second requisites of self-defense and "the further
requisite, in case the provocation was given by the person attacked, that the one making
the defense had no part therein." 2 2
Appellant miserably failed to discharge this burden. In fact, he was clearly the
aggressor. Without unlawful aggression on the part of the victim, there can be no viable
self-defense or defense of a relative. 2 3
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 "There is unlawful aggression when the peril to one's life, limb or right is either actual
or imminent. There must be actual force or actual use of weapon." 2 4 In this case, Antonio
Macalipay was unarmed and actually trying to pacify appellant when the latter shot him.
After shooting Antonio, appellant again cocked his gun, pointed it at Emiliano Santos and
shot him. The latter's act of drawing his gun and firing at him was merely self-defense.
As for Melchor Recto and Percival Orbe, no aggression ever emanated from them
during the entire incident. They were unarmed and in fact already running away from
appellant when he shot them. Clearly, there was no unlawful aggression from any of the
victims.
For purposes of clarity and simplicity, we deem it wise to discuss separately the
crimes attributed to appellant and the proper penalties imposed by the trial court.
Crime and Punishment
The trial court convicted appellant of four (4) crimes: two counts of the complex
crime of quali ed direct assault with frustrated homicide, one count of the complex crime
of quali ed direct assault with murder, and one count of homicide. We will now discuss
each of these crimes.
Qualified Direct Assault
with Frustrated Homicide
(Criminal Case Nos. 1970 and 1971)
In these two cases, appellant claims that he "did not mind" the two victims because
they were not his enemies. He, however, testi ed that the de sabog gun had merely
mis red and hit them. The court a quo was correct in not giving credence to his attempt to
paint the victim's injuries as the result of an accident. Evidence to be believed must be
credible in itself. 2 5 His weak and incredible testimony cannot prevail over the positive and
categorical testimonies of the prosecution witnesses stating that he deliberately shot
them.
However, the trial court erred in convicting appellant of quali ed direct assault with
frustrated homicide. AcCTaD

Direct assault, a crime against public order, may be committed in two ways: rst,
by "any person or persons who, without a public uprising, shall employ force or
intimidation for the attainment of any of the purposes enumerated in de ning the
crimes of rebellion and sedition; and second, by any person or persons who, without a
public uprising, "shall attack, employ force, or seriously intimidate or resist any person
in authority or any of his agents, while engaged in the performance of o cial duties, or
on occasion of such performance." 2 6 The rst mode is tantamount to rebellion or
sedition, without the element of public uprising. The second mode, on the other hand, is
the more common form of assault, and is aggravated when: (a) the assault is
committed with a weapon, or (b) when the offender is a public o cer or employee, or
(c) when the offender lays a hand upon a person in authority. 2 7
An agent of a person in authority is "any person who, by direct provision of law or by
election or by appointment by competent authority, is charged with the maintenance of
public order and the protection and security of life and property, such as barrio
councilman, barrio policeman and barangay leader, and any person who comes to the aid
of persons in authority." 2 8 In the case at bar, the victim, Melchor Recto 2 9 — being then the
barangay chief tanod of Ambulong, Magdiwang, Romblon — was clearly an agent of a
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 person in authority. However, contrary to the ndings of the trial court, he was not
"engaged in the performance of his o cial duties" at the time he was shot. Neither was he
attacked "on the occasion of such performance," as we will now show.
It must be emphasized that Melchor Recto was on his way home when he happened
to pass by the bodega of the Rance couple. He testified as follows:
"PROSECUTOR MORTEL:

Q: On April 18, 1994 at around 4:00 o'clock in the afternoon, you said you
were in the ricefield gathering the harvested palay [;] what time did you
leave that place?
A: Nearing 5:00 o'clock already.
Q: And in going to your house, do you remember if you ha[d] to pass by the
bodega of Rance?
ATTY. MONTOJO:

Leading, Your Honor.

COURT:
Leading.

PROSECUTOR MORTEL continuing:

Q: Now, did you go to your house that afternoon?

A: No, sir.
Q: Why?

A: Because when I pass[ed] in the bodega there were plenty of people.

Q: Whose bodega are you referring to?

A: Rance.

Q: Do you know the name of the owner?

A: Yes, sir.

Q: Please give us the name?

A: First owned by Jose Rance now owned by Crestito and Linda Rance.
Q: What relation has this Crestito Rance to Jose Rance?

A: Jose is the father of Crestito Rance.

Q: And this Linda, what relation has she with Crestito Rance?
A: Wife.

Q: You said, that when you passed by the bodega on your way to your house
there were people in that bodega, please give us [the] names of the people
thereat whom you know?

A: SPO4 Fortunato Rafol, SPO1 Male, Bgy. Captain Percival Orbe, Kag.
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 Antonio Macalipay, Wilfredo Arce and Spouses Crestito and Linda Rance
and those who were threshing palay thereat." 3 0

Melchor explained that when appellant's group arrived, it was Barangay Captain
Percival Orbe and Kagawad Antonio Macalipay who talked to the group. Melchor did not
do anything to avert the tension. He only watched what was transpiring and later hid
himself when the first shot was fired. He continued:
"PROSECUTOR MORTEL continuing:

Q: Because of that, what did Orbe tell you as a barangay tanod?

ATTY. MONTOJO:

Leading, Your Honor. HCTaAS

COURT:

Leading.

PROSECUTOR MORTEL continuing:

Q: What else did he say?

A: He told me not to leave because he might need me.

Q: And did you remain?

A: Yes, sir.

Q: As you were there, did you observe what [t]he policemen were doing?
A: I observed [them] going there and through around [sic] the bodega.

xxx xxx xxx

Q: Now later on, do you remember what the policemen did?

A: I observed that the policemen were already passing the rice paddies
towards the road.
Q: And after they were gone . . . . By the way, who were these policemen
whom you observed going towards the road, will you please name them?

A: SPO4 Fortunato Rafol and Male.

Q: Do you know the first name of SPO1 Male?

A: No sir.

Q: Now, after they were gone, do you remember if there were persons who
arrived?
ATTY. MONTOJO:

Misleading
COURT:

Leading.

PROSECUTOR MORTEL (continuing):

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 Q: After they were gone, what happened?
A: I saw Cornelio Regis, Jr., Julio Recto, Melver Relox, Dante Regis, Teodoro
dela Serna, Nida Regis, Enrica Regis. I saw these seven (7) passing through
the rice paddies towards the bodega.

xxx xxx xxx

PROSECUTOR MORTEL continuing:

Q: Were these group of people able to reach the bodega?

A: No, sir.

Q: Why?

A: They stopped on the first trampa that they reached.

Q: And upon reaching that place, what happened?

A: Dante Regis thr[e]w a piece of wood.

Q: Going to what direction?

A: Towards the bodega.

Q: And when Dante Regis thr[e]w that piece of wood towards the direction of
the bodega, what happened?

A: The barangay captain, Percival Orbe, approached them and told them not
to do it.

Q: And what did you observe . . . . By the way, who was that barangay
captain?

A: Orbe.

Q: And what did you observe when [B]arangay [C]aptain Orbe [told] them not
to do it?

A: I observed that the group got angry so Percival Orbe retreated.

Q: And when Percival Orbe approached the group, did he have any
companion? cTADCH

A: Yes, sir.

Q: Who?
A: Kagawad Antonio Macalipay.

Q: And when Percival Orbe retreated, what did Antonio Macalipay do?

A: When the barangay captain retreated, Antonio Macalipay proceeded

towards the group and stop[ped] at the second trampa coming from the
bodega.
Q: Now, when you reached that place of the second trampa, what happened?

A: Julio Recto raised his jacket and pulled out a gun and pointed it to Antonio
Macalipay.
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 INTERPRETER:

Witness standing and demonstrating.

PROSECUTOR MORTEL continuing:

Q: And when the gun was pointed to Kagawad Antonio Macalipay, what did
Antonio Macalipay do?
A: He raised both hands.

INTERPRETER:
Witness demonstrating by raising his two (2) arms up with open palms as
if in surrender, and said ['D]o not do it we will just settle this.[']

PROSECUTOR MORTEL continuing:

Q: And after Macalipay had said that, what happened?

A: Julio Recto shot him.

Q: And what happened to Macalipay after being shot?

A: Antonio Macalipay fell down backward.

INTERPRETER:

Witness demonstrating . . . fall[ing] backward.

PROSECUTOR MORTEL continuing:

Q: And when you saw Antonio Macalipay fall down backward, what did you
do?
A: I hid behind a pil[l]ar?

xxx xxx xxx

Q: After hiding behind the pil[l]ar, what did you do?

A: I ran towards an old broken down bathroom. . . . . " 3 1

Thinking that appellant had already left the bodega, Melchor, while hiding inside the
old bathroom for several minutes, decided to jump out of a broken down window 3 2 and
ran towards the national road. 3 3
Clearly, from his arrival at the scene of the crime to his departure therefrom, Melchor
was not engaged in the performance of his o cial duties. Neither was he attacked on the
occasion thereof.
This fact was corroborated further by the testimony of Linda Rance, who said that it
was Orbe and Macalipay who had paci ed appellant and his six companions. She testi ed
thus:
"PROSECUTOR VICTORIANO continuing:

Q: While they were discussing, what happened?

A: When they were discussing, Dante Regis thr[e]w a piece of wood.

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 Q: To what direction was that piece of wood thr[own] by Dante Regis?

A: Going towards our group.

Q: And how is this Dante Regis related to Cornelio Regis, Jr.?

A: He is the son of Cornelio Regis, Jr. cDTIAC

Q: When that piece of wood was thrown towards your direction, was
somebody hit?
A: No, sir.

Q: Where did that piece of wood land?

A: In front of our bodega.

Q: Was there anything hit by that piece of wood?

A: No, sir.
Q: When that piece of wood was thrown, what followed next?

A: They were already agitated.

Q: Now, because of the agitation, what happened?

A: Bgy. Captain Orbe was trying to pacify them.

Q: What about Bgy. Kagawad Antonio Macalipay, what did he do?

A: He was trying to pacify but they would not be pacified.

Q: Now, when they refused to be pacified, what did Julio Recto do?

A: Julio Recto turned his way (witness turning to her left side) and open[ed]
his jacket and drew a gun.

Q: When Julio Recto drew his gun, what did Antonio Macalipay do?

A: Antonio Macalipay said, ["L]et us settle this (witness raising . . . both [of
her] hands) and do not do it. (at the same time raising . . . both [of her]
hands as if in surrender[)"].

INTERPRETER:

Witness demonstrating.
PROSECUTOR VICTORIANO continuing:

Q: Now, [in] spite of what Barangay Kagawad Antonio Macalipay did, what
happened?
A: Julio Recto shot him once." 3 4

Unquestionably, Melchor Recto was a barangay chief tanod; however, at the crime
scene he was a mere bystander. Apparently, he was not acting and had no occasion to act
in the performance of his o cial duties that afternoon. Thus, the attack on him did not
amount to direct assault. 3 5
We now determine the criminal liability of appellant with respect to the attack. He
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 shot Melchor only once, but the latter sustained ve gunshot entry wounds 3 6 all located at
his backside, at the vicinity of his buttocks. Because the gun used by the former was a de
sabog, 3 7 each bullet contained several pellets inside. 3 8 In other words, a single shot from
a de sabog results in the spewing of several pellets. The nature of the weapon used for the
attack and the direction at which it was aimed — the victim's back — unmistakably showed
appellant's intent to kill. TcADCI

However, for reasons other than his own desistance, appellant was not able to
perform all the acts of execution necessary to consummate the killing, since the wounds
he in icted were not mortal. In United States v. Eduave, 3 9 this Court has held that if the
wounds would not normally cause death, then the last act necessary to produce homicide
has not been performed by the offender. Thus, appellant's liability amounted only to
attempted, not frustrated, homicide.
The penalty that is lower by two degrees 4 0 than that prescribed by law for
consummated homicide shall be imposed upon appellant. After applying the
Indeterminate Sentence Law, it shall be taken from the medium period, since there were no
aggravating or mitigating circumstances proven.
In Criminal Case No. 1971, the trial court was correct in ruling that the attack on
Percival Orbe — then a barangay captain, a person in authority 4 1 — amounted to quali ed
direct assault, because he was attacked on the occasion of the performance of his duty. At
the time, he was attempting to pacify appellant and to keep the peace between the two
groups.
A felony "is frustrated when the offender performs all the acts of execution which
would produce the felony as a consequence but which, nevertheless, do not produce it by
reason of causes independent of the will of the perpetrator." In this case, the nature of the
weapon used by appellant unmistakably shows that he intended to kill Orbe. However, like
the wounds inflicted by the accused on Melchor Recto, those on Orbe were not fatal.
As evidenced by the Medico-Legal Certificate 4 2 prepared by Dr. Ramon D. Villanueva
of the Romblon Provincial Hospital and the testimony given by Dr. Giovannie C. Fondevilla
of the same hospital, Orbe sustained several gunshot wounds in the vicinity of his right
elbow. Those injuries could not have caused his death. Moreover, according to Dr.
Fondevilla, no surgical intervention was required; only medication was given to him 4 3 to
prevent any secondary infection from setting in. 4 4
Evidently, appellant had not yet been able to perform all the acts of execution
necessary to bring about the death of Orbe, because the latter was able to run away after
being red at. Although appellant had already directly commenced the commission of a
felony by overt acts (shooting Orbe with a de sabog ), he was not able to consummate that
felony for some reason other than his spontaneous desistance. Thus, he committed
attempted homicide. TaDSCA

Given these circumstances, appellant should therefore be convicted of the complex

crime of quali ed direct assault with attempted homicide. To be imposed therefor should
be the penalty for the most serious crime — in this case qualified direct assault — the same
to be imposed in its maximum period. 4 5 The Indeterminate Sentence Law should also be
applied in this case.
Qualified Direct Assault with Murder
(Criminal Case No. 1972)
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 In Criminal Case No. 1972, appellant does not question the nding of the trial court
that he shot Antonio Macalipay. However, he submits that it erred in nding the presence
of the qualifying circumstance of treachery. We agree.
First, the victim's companions outnumbered those of appellant. As shown by the
pleadings and records of the case, his group consisted of seven individuals; the victims,
sixteen. 4 6
Second, the heated confrontation on April 18, 1994 arose as a consequence of an
earlier judgment 4 7 of the trial court in favor of appellant's group. This case strained the
relations of the parties who, after all, were related by blood and marriage. In fact, prior to
this event, appellant — believing that his uncle Cornelio Regis, Jr. should get the landlord's
share of the palay or rice harvest — attempted to harvest the elds thrice: (1) in October
1993; (2) in December 1993; and, (3) in March 1994. 4 8 All of these attempts failed,
because Linda Rance hired a group of bodyguards headed by the victim, Emiliano "Renato"
Santos. 4 9 In short, the confrontation was not totally unexpected.
Third, both groups were armed. The exchange of gun re was substantiated by
the Medico-legal Certi cates presented by both the prosecution and the defense. 5 0
Moreover, the deceased Santos carried a gun which Alberto Rance, son of Crestito and
Linda, had given him for his protection. 5 1
Fourth, appellant's group asked the police station commander to assemble the
workers of the disputed rice eld on April 15, 1994 at the Municipal Building of
Magdiwang, Romblon, to inform them of the trial court's Decision awarding the land to
Cornelio Regis, Jr. For this reason, the members of the group were to start collecting the
landlord's share of the harvest starting April 18, 1994. 5 2
Fifth, appellant was seen holding a balisong or fan knife during the heated
confrontation, before he pulled out the shotgun and pointed it at the other group. 5 3
Macalipay, in a bold yet foolish attempt, stepped forward in front of appellant and told him:
"Ayosan ta lang ini? 5 4 (No, don't, because we will just settle this)." 5 5 And "[s]imultaneously
with the last word in the phrase [']don't because we will just settle this, [']" 5 6 appellant red
his gun, killing the victim.
Evidently, the victim had all the opportunity to escape or defend himself from the
aggression that was to ensue, yet chose not to grab the opportunity and instead placed
himself in a position more open to attack. 5 7 Equally important, his vulnerable position had
not been deliberately sought by appellant. It was thrust on the latter by the former himself.
In short, appellant did not deliberately choose the mode of attack to kill the victim with
impunity and without risk to himself. CDTHSI

Jurisprudence teaches us:

"Treachery does not exist [when] the evidence does not show that appellant
deliberately adopted a mode of attack intended to ensure the killing of [the victim]
with impunity, and without giving the victim an opportunity to defend himself.
Further, the shooting took place after a heated exchange of words and a series of
events that forewarned the victim of aggression from appellant. In this case, it
appears to have occurred on sudden impulse but preceded by acts of appellant
showing hostility and a heated temper that indicated an imminent attack and put
the deceased on guard. 5 8
"If the decision to kill was sudden, there is no treachery, even if the position
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 of the victim was vulnerable, because it was not deliberately sought by the
accused, but was purely accidental. 5 9

"When there is no evidence that the accused has, prior to the moment of
the killing, resolved to commit the crime, or there is no proof that the death of the
victim was the result of meditation, calculation or re ection, treachery cannot be
considered." 6 0

Section 16 of Article 14 of the Revised Penal Code states that "there is treachery
when the offender commits any of 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."
In this case, appellant was out in the open during the entire span of time from the
heated discussion, to the brewing of the violence, and up to the shooting of Macalipay. At
the time, his every action, which indicated the imminence of more violence, was visible to
them — to the victim and the latter's companions. Appellant was actually vulnerable to any
attack that they could have made at the time, had they chosen to. His mode of attack was
therefore not without risk to himself. Absent treachery, the killing is homicide, not murder.
Considering that Antonio Macalipay was a kagawad who was in the actual
performance of his duties when he was shot, the attack on him constituted direct assault.
Applying the provisions of Articles 148 (direct assault), 249 (homicide) and 48
(penalty for complex crimes), appellant should be held liable for the complex crime of
quali ed direct assault with homicide. The penalty to be imposed on him should be for
homicide, which is the more serious crime, to be imposed in the maximum period. This
penalty shall comprise the maximum of his indeterminate sentence, and the minimum shall
be within the range of the penalty next lower than that prescribed for homicide.
Homicide (Criminal Case No. 1973)
We sustain appellant's conviction for homicide in Criminal Case No. 1973 because,
in the words of the trial judge: "The late Emiliano Santos was only beaten to the draw by
co-accused Julio Recto. It was a gun duel between the two." 6 1 In his Brief, appellant hardly
disputed this holding. Neither do we. The maximum of the penalty imposed by the court a
quo in this case was, however, taken from the minimum period of the penalty for homicide.
Considering that no mitigating or aggravating circumstances were proven, the maximum
of the indeterminate sentence in this case should be taken from the medium period.
WHEREFORE, the Decision dated April 2, 1997, issued by the Regional Trial Court of
Romblon, is hereby MODIFIED as follows:
First, in Criminal Case No. 1970, appellant is hereby CONVICTED of attempted
homicide and sentenced to suffer imprisonment for an indeterminate penalty of four (4)
months of arresto mayor as minimum, to four (4) years and two (2) months of prision
correccional as maximum.
Second, in Criminal Case No. 1971, appellant is hereby CONVICTED of the complex
crime of quali ed direct assault with attempted homicide and is hereby sentenced to
suffer an indeterminate penalty, of six (6) months of arresto mayor as minimum, to six (6)
years of prision correccional as maximum.
Third, in Criminal Case No. 1972, appellant is hereby CONVICTED of quali ed direct
assault with homicide aggravated by the use of a weapon and is sentenced to suffer an
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 indeterminate penalty of twelve (12) years of prision mayor as minimum, to twenty (20)
years of reclusion temporal as maximum. We AFFIRM the award of P50,000 as indemnity
ex delicto.
Fourth, in Criminal Case No. 1973, the trial court's judgment convicting appellant of
homicide and awarding to the victim's heirs an indemnity ex delicto of P50,000 is
AFFIRMED; but the maximum of the penalty imposed is increased to fourteen (14) years,
eight (8) months and one (1) day of reclusion temporal.
All other portions of the trial court's disposition that were not modi ed in the above
pronouncement are deemed AFFIRMED.
No pronouncement as to costs. AICHaS

SO ORDERED.
Davide Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Quisumbing, Pardo, Buena,
Ynares-Santiago, De Leon Jr. and Sandoval-Gutierrez, JJ., concur.
Vitug, J., is on official leave.

Footnotes
1. Penned by Judge Placido C. Marquez.

2. Assailed Decision, pp. 19-20; rollo, pp. 64-65; records, pp. 165-66.
3. Except for the Information charging appellant with illegal possession of firearm and
ammunition, which was dated October 18, 1994, all the four Informations were dated
September 22, 1994. Assailed Decision, pp. 2-4; rollo, pp. 10, 48-50.

4. Information dated September 22, 1994; quoted in the assailed Decision, p. 2; rollo, p. 48.
5. Information dated September 22, 1994; quoted in the assailed Decision, pp. 2-3; rollo, pp.
48-49.

6. Appellant was charged together with Cornelio Regis, Jr.

7. Rollo, p. 10; records, p. 1.
8. Both appellant and Cornelio Regis, Jr. were charged in the Information.

9. Also called "Emilio."

10. Information dated September 22, 1994; quoted in the assailed Decision, p. 3; rollo, p. 49.

11. Information dated October 18, 1994; quoted in the assailed Decision, p. 4; rollo, p. 50.
12. Atty. Peter M. Montejo.

13. Order dated November 24, 1994; records p. 22.

14. Appellee's Brief, pp. 4-10; rollo, pp. 147-53. The Brief was signed by Solicitor General
Ricardo P. Galvez, Asst. Solicitor General Amy C. Lazaro-Javier and Associate Solicitor
Joey Luis B. Wee.

15. Assailed Decision, pp. 6-7; rollo, pp. 51-52. Appellant's Brief, signed by Atty. Peter M.
Montojo, did not narrate the defense's statement of facts. It merely said: "Accused-
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 appellant Julio Recto interposed self-defense and defense of his co-accused Cornelio
Regis, Jr." See appellant's Brief, p. 7; rollo, 98.

16. Decision, p. 8; rollo, p. 117.

17. Ibid.
18. This case was deemed submitted for resolution on March 30, 2001, upon receipt by this
Court of appellant's Reply Brief signed by Atty. Gordon S. Montojo, collaborating counsel
for appellant.
19. Ibid.
20. Article 11 (1) of the Revised Penal Code.

21. This relative must either be "his spouse, ascendants, descendants, or legitimate, natural
or adopted brothers or sisters, or his relatives by affinity in the same degrees, and those
by consanguinity within the fourth degree, . . . ." Article 11(2) of the Revised Penal Code.

22. Ibid.
23. People v. Bautista, 312 SCRA 475, August 17, 1999; People v. Antonio, 303 SCRA 414,
February 19, 1999; People v. Sazon, 189 SCRA 700, September 18, 1990; People v.
Bayocot, 174 SCRA 285, June 28, 1989.
24. People v. Crisostomo, 108 SCRA 288, 298, October 23, 1981, per Fernandez, J.
25. People v. Saban, 319 SCRA 36, November 24, 1999; People v. Capco, 319 SCRA 403,
November 29, 1999; People v. Milan, 311 SCRA 461, July 28, 1999.

26. Article 148 of the Revised Penal Code.

27. People v. Abalos, 258 SCRA 523, 532, July 9, 1996, citing Aquino, R. C., The Revised
Penal Code, Vol. II, 1987 ed., p. 146.
28. Art. 52, Revised Penal Code, as amended.

29. He is the younger brother of appellant.

30. TSN, February 15, 1995, pp. 7-8.

31. Ibid., pp. 11-17.

32. Id., p. 23.
33. Id., p. 26.
34. TSN, June 9, 1995, pp. 9-12.
35. United States v. Marasigan, 11 Phil. 27, July 25, 1908.
36. Medico-legal Certificate, Exhibit E; records, p. 87.
37. TSN, February 1, 1995, p. 25. Also referred to as a "pugakang"; TSN, February 23, 1995,
p. 26.

38. TSN, February 1, 1995, p. 38.

39. 36 Phil. 209, February 2, 1917.

40. Art. 51, Revised Penal Code.
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 41. Art. 152 of the Revised Penal Code.
42. Medico-legal Certificate of Percival Orbe signed by Dr. Ramon D. Villanueva; records, p.
89.

43. TSN, December 20, 1995, p. 13.

44. Ibid., p. 11.
45. Art. 48, Revised Penal Code.

46. Antonio Macalipay, Emiliano "Renato" Santos, Melchor Recto, Percival Orbe, Wilfredo
Arce, Juvenal Arce, Orlando Robea, Boy Carullo, Jose Robea, Anunciacion Robea, Josefa
Marin, Amboy de Asis, Crestito Rance, Linda Rance, Alberto Rance, Paul Rance; TSN,
August 14, 1984, pp. 11, 34.

47. Cornelio Regis, Jr., Plaintiff v. Spouses Crestito Rance and Linda Rance, Civil Case No.
V-1101; ibid., p. 21.
48. TSN, June 9, 1995, pp. 35-36.

49. Ibid., p. 31. Although Linda Rance denied this, we believe that it will explain why she
spent P20,000 for the death of Santos and gave the family of Antonio Macalipay, the
barangay tanod of their community, the sum of only P2,000. See ibid., pp. 23-24.
50. See Exhibits "A", "B", "E" and "G"; records, pp. 83-89; and Exhibits "1", "2", "3" and "4";
records, pp. 124-127.

51. TSN, February 22, 1996, p. 8.

52. TSN, April 22, 1996, pp. 6-7.

53. TSN, August 14, 1995, p. 44.

54. TSN, January 24, 1995, p. 17.

55. TSN, August 14, 1995, pp. 44-45.

56. Ibid., p. 45.

57. TSN, February 1, 1995, p. 38.

58. People v. Demonteverde, 290 SCRA 175, 184, May 19, 1998, per Regalado, J.
59. People v. Cadag, 2 SCRA 388, 393-394, May 31, 1961, per De Leon, J.
60. United States v. Balagtas and Jaime, 19 Phil. 164, 171, March 22, 1911.
61. Decision, p. 10; rollo, p. 119; records, p. 156.

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