627 Phil.

304

FIRST DIVISION

[ G.R. No. 168169, February 24, 2010 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.

ALBERTO TABARNERO AND GARY TABARNERO, ACCUSED-
APPELLANTS.

DECISION

LEONARDO-DE CASTRO, J.:

This is an appeal from the Decision[1] of the Court of Appeals in CA-G.R. CR.-
H.C. No. 00027 dated April 29, 2005. In said Decision, the Court of Appeals
affirmed with modification the August 29, 2002 Decision[2] of the Regional Trial
Court (RTC), Branch 78 of Malolos, Bulacan, in Crim. Case No. 888-M-2000,
convicting herein appellants Alberto Tabarnero (Alberto) and Gary Tabarnero
(Gary) of the crime of Murder.

The factual and procedural antecedents of the case are as follows:

Late at night on October 23, 1999, Gary went to the house of the deceased
Ernesto Canatoy (Ernesto), where the former used to reside as the live-in
partner of Mary Jane Acibar (Mary Jane), Ernesto's stepdaughter. Gary and
Ernesto had a confrontation during which the latter was stabbed nine times,
causing his death. The versions of the prosecution and the defense would later
diverge as regards the presence of other persons at the scene and other
circumstances concerning Ernesto's death.

On March 3, 2000, Gary and his father, Alberto, were charged with the crime of
Murder in an Information which read:

That on or about the 23rd day of October, 1999, in the municipality of

Malolos, province of Bulacan, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring,
confederating together and mutually helping each other, armed with
 bladed instrument and with intent to kill one Ernesto Canatoy, did
then and there willfully, unlawfully, and feloniously, with evident
premeditation, abuse of superior strength and treachery, attack,
assault and stab with the said bladed instrument the said Ernesto
Canatoy, hitting the latter on the different parts of his body, thereby
causing him serious physical injuries which directly caused his death.
[3]

On 27 March 2000, warrants for the arrest of Gary and Alberto were issued by
the RTC of Malolos, Bulacan.[4]

On April 22, 2001, Gary surrendered to Barangay Tanod Edilberto Alarma.[5]

When he was arraigned on April 30, 2001, Gary pleaded NOT GUILTY to the
crime charged. [6] During this time, Alberto remained at large.

On May 21, 2001, a pre-trial conference was conducted. Therein, Gary admitted
having killed Ernesto, but claimed that it was an act of self-defense. Thus,
pursuant to Section 11(e), Rule 119 of the Rules of Court, a reverse trial ensued.

Gary, a 22-year-old construction worker at the time of his testimony in June

2001, testified that he stayed in Ernesto's house from 1997 to 1999, as he and
Mary Jane were living together. Mary Jane is the daughter of Teresita Acibar, the
wife[7] of Ernesto. However, Gary left the house shortly before the October 23,
1999 incident because of a misunderstanding with Ernesto when the latter
allegedly stopped the planned marriage of Gary and Mary Jane, who was
pregnant at that time.

On October 23, 1999, Gary was allegedly in his house in Longos, Malolos,
Bulacan at around 11:40 p.m. with his friend, Richard Ulilian; his father, co-
appellant Alberto; his mother, Elvira; and his brother, Jeffrey. Overcome with
emotion over being separated from Mary Jane, Gary then went to Ernesto's
house, but was not able to enter as no one went out of the house to let him in.
He instead shouted his pleas from the outside, asking Ernesto what he had done
wrong that caused Ernesto to break him and Mary Jane up, and voicing out
several times that he loved Mary Jane and was ready to marry her. When Gary
was about to leave, the gate opened and Ernesto purportedly struck him with a
lead pipe. Ernesto was aiming at Gary's head, but the latter blocked the blow
with his hands, causing his left index finger to be broken. Gary embraced
Ernesto, but the latter strangled him. At that point, Gary felt that there was a
bladed weapon tucked at Ernesto's back. Losing control of himself, Gary took the
bladed weapon and stabbed Ernesto, although he cannot recall how many times
he did so.[8]

According to Gary, Ernesto fell to the ground, and pleaded, "saklolo, tulungan
niyo po ako" three times. Gary was stunned, and did not notice his father, co-
appellant Alberto, coming. Alberto asked Gary, "anak, ano ang nangyari?" To
which Gary responded "nasaksak ko po yata si Ka Erning," referring to Ernesto.
Gary and Alberto fled, allegedly out of fear.[9]

Gary denied that he and Alberto conspired to kill Ernesto. Gary claims that it was
he and Ernesto who had a fight, and that he had no choice but to stab Ernesto,
who was going to kill him.[10]

Gary's sister, Gemarie Tabarnero, testified that she was a childhood friend of
Mary Jane. Gemarie attested that Mary Jane was Gary's girlfriend from 1995 to
1999. Sometime in 1999, however, Gary and Mary Jane were prevented from
talking to each other. During that time, Gary was always sad and appeared
catatonic, sometimes mentioning Mary Jane's name and crying.[11]

On the night of the incident on October 23, 1999, Gemarie observed that Gary
was crying and seemed perplexed. Gary told Gemarie that he was going to
Ernesto's house to talk to Ernesto about Mary Jane. Gary allegedly did not bring
anything with him when he went to Ernesto's house.[12]

In the meantime, on August 5, 2001, Alberto was apprehended.[13] On August

20, 2001, he pleaded NOT GUILTY to the charge.[14] However, while Alberto's
defense is denial and not self-defense like Gary's, the court decided to proceed
with the reverse trial, as it had already started that way.[15]

Next on the witness stand was Edilberto Alarma (Alarma), who was a barangay
tanod of Longos, Malolos, Bulacan since February 2000. Alarma testified that
while he was in a meeting at around 4:00 p.m. on April 22, 2001, Gary arrived
and told him of his intention to surrender to him. Gary told him that he was
responsible for the "incident [that] happened at Daang Riles." Together with his
fellow barangay tanod Zaldy Garcia, Alarma brought Gary to the Malolos Police
Station, where the surrender was entered in the blotter report.[16]

Appellant Alberto, a construction worker employed as leadman/foreman of Alicia

Builders, was 45 years old at the time of his testimony in September 2001. He
testified that at the time of the incident, he was living in Norzagaray, Bulacan.
On October 23, 1999, however, he went to visit his children, Gary and Gemarie,
in Barangay Longos, Malolos, Bulacan. Before going to sleep at 11:00 p.m., he
realized that Gary was not in the place where he would usually sleep. He went
downstairs, thinking that Gary was just urinating. He waited for five minutes;
when Gary did not show up, he proceeded to Daang Bakal, where Gary had
many friends. He walked for about 10 minutes. About 400 meters from the site
of the incident, he saw Gary and asked him what happened and why he was in a
hurry, to which Gary replied: "Wag na kayong magtanong, umalis na tayo,
napatay ko po yata si Kuya Erning." Alberto and Gary ran in different directions.
Alberto passed through the railways and exited in front of the capitol compound
to wait for a jeepney going to Sta. Maria, his route toward his home in
Norzagaray.[17]

Alberto claims that he had no knowledge of the accusation that he conspired

with Gary in killing Ernesto. It was three months after the incident that he came
to know that he was being charged for a crime. At this time, he was already
residing in Hensonville Plaza, Angeles City, Pampanga, where he was assigned
when his engineer, Efren Cruz, secured a project in said place.[18]

During cross-examination, Alberto repeated that he did not return to Gary's

house after the incident. He said that it did not occur to him to inform the
authorities about the killing of Ernesto. Later, Alberto learned from his sibling,
whom he talked to by phone, that Gary had already surrendered. He did not
consider surrendering because, although he wanted to clear his name, nobody
would work to support his family. He said that he had no previous
misunderstanding with Ernesto.[19]

Answering questions from the court, Alberto stated that he immediately went
home to Norzagaray because he was afraid to be implicated in the stabbing of
Ernesto. It did not occur to him to stay and help Gary because he did not know
where Gary proceeded after they ran away. The next time he saw Gary was
three months after the incident, when Gary went to Norzagaray.[20]

The first to testify for the prosecution was its eyewitness, Emerito Acibar
(Emerito). Emerito, the brother of Mary Jane,[21] was inside their house in
Daang Bakal, Longos, Malolos, Bulacan with his brother and his stepfather,
Ernesto, at around eleven o'clock on the night of the incident on October 23,
1999. He heard somebody calling for Ernesto, but ignored it. He then heard a
"kalabog," followed by Ernesto's plea for help. Emerito was about to go outside,
but, while he was already at the door of their one-room[22] house, he saw
Ernesto being held by a certain Toning "Kulit" and another person, while Gary
and Alberto were stabbing Ernesto with fan knives. Emerito lost count of the
number of thrusts made by Gary and Alberto, but each inflicted more than one,
and the last stab was made by Alberto. Emerito shouted for help. The four
assailants left when somebody arrived, allowing Emerito to approach Ernesto
and bring him to the Bulacan Provincial Hospital.[23]

On cross-examination, Emerito confirmed that Gary and Mary Jane used to

reside in Ernesto's house. On the date of the incident, however, Gary had
already left the house, while Mary Jane had moved to Abra with Teresita (the
mother of Emerito and Mary Jane). According to Emerito, his family did not know
that Mary Jane and Gary had a relationship because they treated Gary like a
member of the family. Ernesto got mad when his wife, Teresita, found out about
Gary and Mary Jane's relationship. On the night of the incident, at past 11:00
p.m., Emerito was fixing his things inside their house, when he heard someone
calling from outside, but was not sure if it was Gary. Emerito neither saw Ernesto
leaving the room, nor the fight between Ernesto and Gary. All he saw was the
stabbing, which happened seven to eight meters away from the doorway where
he was standing. He was sure that there were four assailants, two of whom went
to a bridge 8 to 10 meters from the incident, where they boarded a yellow XLT-
type car.[24]

Senior Police Officer 2 (SPO2) Ronnie Morales of the Malolos Philippine National
Police testified that he was on duty at the police station on the night of October
23, 1999. During that night, Emerito reported at the police station that Ernesto
had been stabbed. SPO2 Morales and Emerito proceeded to the Bulacan
Provincial Hospital, where SPO2 Morales saw Ernesto in the operating room, very
weak due to multiple injuries. While in the presence of two doctors on duty,
SPO2 Morales asked Ernesto who stabbed him. Ernesto answered that the
assailants were the father and son, Gary and Alberto Tabarnero from Longos,
Bulacan.[25]

Cross-examined, SPO2 Morales clarified that it was already 1:00 a.m. of the
following day when he and Emerito proceeded to the hospital. As they went to
the hospital, Emerito did not inform SPO2 Morales that he witnessed the
incident. SPO2 Morales did not find it odd that Emerito did not tell him who the
suspects were when Emerito reported the incident, because they immediately
proceeded to the hospital, considering that the victim, Ernesto, was still alive.
Ernesto was not able to affix his signature on the Sinumpaang Salaysay[26]
because he could no longer talk after the fourth question. Answering questions
from the court, SPO2 Morales further stated that he could not remember talking
to Emerito on their way to the hospital, since they were in a hurry.[27]

The government physician at the Bulacan Provincial Hospital who prepared

Ernesto's death certificate, Dr. Apollo Trinidad, clarified that Ernesto died on
October 25, 1999. However, considering the admission by the defense of the fact
of death, the cause thereof, and the execution of the death certificate, the
prosecution no longer questioned Dr. Trinidad on these matters.[28]

Teresita's testimony was likewise dispensed with, in light of the admission by the
defense that she was the common-law wife of Ernesto, and that she incurred
P55,600.00 in expenses in relation to Ernesto's death.[29]

On August 29, 2002, the RTC rendered its Decision convicting Gary and Alberto
of the crime of murder. The decretal portion of the Decision reads:

WHEREFORE, the foregoing considered, this Court hereby finds

accused Alberto Tabarnero and Gary Tabarnero GUILTY beyond
reasonable doubt of the Crime of Murder defined and penalized under
Art. 248 of the Revised Penal Code, as amended, and sentences them
to suffer the penalty of Reclusion Perpetua and to pay private
complainant Teresita Acibar the amount of P55,600.000 (sic) as actual
damages[,] P50,000.00 as indemnity for the death of Ernesto
Canatoy[,] P50,000.00 as moral damages, and the costs of suit.[30]

Gary and Alberto appealed to this Court. After the parties had filed their
respective briefs, this Court, in People v. Mateo,[31] modified the Rules of Court
in so far as it provides for direct appeals from the RTC to this Court in cases
where the penalty imposed is death, reclusion perpetua or life imprisonment.
Pursuant thereto, this Court referred[32] the case to the Court of Appeals, where
it was docketed as CA-G.R. CR.-H.C. No. 00027.

On April 29, 2005, the Court of Appeals affirmed the conviction with modification
as regards exemplary damages, disposing of the case in the following manner:

WHEREFORE, the decision of the Regional Trial Court of Malolos, Bulacan, Branch
78 dated 29 August 2002 is hereby AFFIRMED with the modification that
exemplary damages in the amount of P25,000.00 is awarded because of the
presence of treachery.[33]
From the Court of Appeals, the case was elevated to this Court anew when Gary
and Alberto filed a Notice of Appeal on May 13, 2005.[34] In its Resolution on
August 1, 2005, this Court required both parties to submit their respective
supplemental briefs, if they so desire. Both parties manifested that they were
adopting the briefs they had earlier filed with this Court.

Gary and Alberto, in their brief filed in this Court before the referral of the case
to the Court of Appeals, assigned the following errors to the RTC:

I.

THE COURT A QUO GRAVELY ERRED IN NOT CONSIDERING THE

JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE AND THE MITIGATING
CIRCUMSTANCE OF VOLUNTARY SURRENDER INTERPOSED BY
ACCUSED-APPELLANT GARY TABARNERO

II.

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THERE WAS

CONSPIRACY IN THE CASE AT BAR

III.

ASSUMING ARGUENDO THAT ACCUSED-APPELLANTS ARE CULPABLE,

THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE
QUALIFYING CIRCUMSTANCE OF TREACHERY[35]

The justifying circumstance of self-defense on

the part of Gary cannot be considered

The requisites for self-defense are: 1) unlawful aggression on the part of the
victim; 2) lack of sufficient provocation on the part of the accused; and 3)
employment of reasonable means to prevent and repel aggression.[36]

The defense invokes the said justifying circumstance, claiming that all of the
above three elements are present in the case at bar. There was allegedly
unlawful aggression on the part of Ernesto when the latter delivered the first
blow with the lead pipe. According to the defense, the means Gary used to
defend himself was reasonable, and the shouted professions of his feelings for
Mary Jane could not be considered provocation sufficient for Ernesto to make the
unlawful aggression.

The Court of Appeals noted that the only evidence presented by the defense to
prove the alleged unlawful aggression was Gary's own testimony. Citing Casitas
v. People,[37] the Court of Appeals held that the nine stab wounds inflicted upon
Ernesto indicate Gary's intent to kill, and not merely an intent to defend himself.
The number of wounds also negates the claim that the means used by Gary to
defend himself was reasonable.

We agree with the Court of Appeals. Unlawful aggression is an indispensable

requirement of self-defense.[38] As ruled by the Court of Appeals, the evidence
presented by Gary to prove the alleged unlawful aggression, namely, his own
testimony, is insufficient and self-serving. The alleged sudden appearance of
Ernesto and his first attack with the lead pipe the very moment Gary decided to
leave seems to this Court to be all too convenient, considering that there was no
one around to witness the start of the fight.

The RTC, which had the opportunity to observe the demeanor of the witnesses,
found Gary's account concerning the alleged unlawful aggression on the part of
Ernesto to be unconvincing. Factual findings of the trial court, especially when
affirmed by the Court of Appeals, as in this case, are binding on this Court and
are entitled to great respect.[39] It also bears to emphasize that by invoking
self-defense, Gary, in effect, admitted killing Ernesto, thus, shifting upon him the
burden of evidence to prove the elements of the said justifying circumstance.[40]
A plea of self-defense cannot be justifiably appreciated where it is not only
uncorroborated by independent and competent evidence, but also extremely
doubtful in itself.[41]

The defense further argues that assuming that Gary is not qualified to avail of
the justifying circumstance of self-defense, he would nevertheless be entitled to
the mitigating circumstance of incomplete self-defense under Article 13(1) of the
Revised Penal Code, which provides:

Art. 13. Mitigating circumstances. -- The following are mitigating

circumstances:

1. Those mentioned in the preceding chapter, when all the requisites

necessary to justify the act or to exempt from criminal liability in the
respective cases are not attendant.
We disagree. Unlawful aggression is a condition sine qua non, without which
there can be no self-defense, whether complete or incomplete.[42] There is
incomplete self-defense when the element of unlawful aggression by the victim
is present, and any of the other two essential requisites for self-defense.[43]
Having failed to prove the indispensable element of unlawful aggression, Gary is
not entitled to the mitigating circumstance, even assuming the presence of the
other two elements of self-defense.

Gary is not entitled to the mitigating

circumstance of voluntary surrender

The first assignment of error presents another issue for the consideration of this
Court. The defense argues that Gary's yielding to Alarma should be credited as a
mitigating circumstance of voluntary surrender. The Solicitor General agreed
with the defense on this point. The Court of Appeals, however, disagreed, and
held that the delay of six months[44] before surrendering negates spontaneity,
[45] a requisite for voluntary surrender to be considered mitigating.

We agree with the Court of Appeals.

In order that the mitigating circumstance of voluntary surrender may be credited

to the accused, the following requisites should be present: (a) the offender has
not actually been arrested; (b) the offender surrendered himself to a person in
authority; and (c) the surrender must be voluntary. A surrender, to be voluntary,
must be spontaneous, i.e., there must be an intent to submit oneself to
authorities, either because he acknowledges his guilt or because he wishes to
save them the trouble and expenses in capturing him.[46]

In People v. Barcimo, Jr.,[47] the pending warrant for the arrest of the accused
and the latter's surrender more than one year after the incident were considered
by the Court as damaging to the plea that voluntary surrender be considered a
mitigating circumstance. Thus:

The trial court did not err in disregarding the mitigating circumstance
of voluntary surrender. To benefit an accused, the following requisites
must be proven, namely: (1) the offender has not actually been
arrested; (2) the offender surrendered himself to a person in
authority; and (3) the surrender was voluntary. A surrender to be
voluntary must be spontaneous, showing the intent of the accused to
 submit himself unconditionally to the authorities, either because he
acknowledges his guilt, or he wishes to save them the trouble and
expense necessarily incurred in his search and capture. Voluntary
surrender presupposes repentance. In People v. Viernes [G.R. No.
136733-35, 13 December 20010], we held that going to the police
station to clear one's name does not show any intent to surrender
unconditionally to the authorities.

In the case at bar, appellant surrendered to the authorities after more

than one year had lapsed since the incident and in order to disclaim
responsibility for the killing of the victim. This neither shows
repentance or acknowledgment of the crime nor intention to save the
government the trouble and expense necessarily incurred in his
search and capture. Besides, at the time of his surrender, there was a
pending warrant of arrest against him. Hence, he should not be
credited with the mitigating circumstance of voluntary surrender.

The records show that Gary surrendered on April 22, 2001.[48] The commitment
order commanding that he be detained was issued on April 24, 2001.[49] The
surrender was made almost one year and six months from the October 23,
1999 incident, and almost one year and one month from the issuance of
the warrant of arrest against him on March 27, 2000.[50] We, therefore,
rule that the mitigating circumstance of voluntary surrender cannot be credited
to Gary.

Alberto is a principal by direct

participation in the killing of Ernesto

In insisting upon Alberto's innocence, the defense claims that there was no
conspiracy between him and his son, Gary. The defense asserts that Alberto just
happened to be near the scene of the crime as he was looking for his son, whom
he saw only after the altercation.

The basis of Alberto's conviction, however, is not solely conspiracy. A review of

the proven facts shows that conspiracy need not even be proven by the
prosecution in this case, since Alberto was categorically pointed by the
eyewitness, Emerito, as one of the assailants who actively and directly
participated in the killing of Ernesto:

Q Those 2 persons whom you saw and who stabbed your

 stepfather in the evening of October 23, 1999, if they are now
in court, will you be able to identify them?
A Yes, sir.

Q Would you please point to those 2 persons?

A (Witness pointing to the persons who, when asked answered to
the name of Alberto Tabarnero and Gary Tabarnero)

Q What was the position of Alberto Tabarnero in that stabbing

incident?
A He was the one whom I saw stabbed last my stepfather.

xxxx

COURT (TO THE WITNESS):

Q How many times did you see Gary stabbed your father?
A I cannot count how many stabs Gary made.

PROS. SANTIAGO:

Q Was it many times or just once?

A I cannot count but more than 1.

Q How about Alberto Tabarnero, how many times did you see him
stabbing your stepfather?
A I cannot count also but he was the last one who stabbed my
stepfather.[51]

Having actually participated in the stabbing of Ernesto, it was adequately proven

that Alberto is a principal by direct participation.

Even more persuasive is the statement of the victim himself, Ernesto, as testified
to by SPO2 Morales, that it was "the father and son, Gary and Alberto Tabarnero
from Longos, Bulacan" who stabbed him.[52] While Ernesto was not able to
testify in court, his statement is considered admissible under Section 37, Rule
130 of the Rules of Court, which provides:

Sec. 37. Dying declaration. -- The declaration of a dying person, made

under the consciousness of an impending death, may be received in
 any case wherein his death is the subject of inquiry, as evidence of
the cause and surrounding circumstances of such death.

In applying this exception to the hearsay rule, we held as follows:

"It must be shown that a dying declaration was made under a

realization by the decedent that his demise or at least, its imminence
-- not so much the rapid eventuation of death -- is at hand. This may
be proven by the statement of the deceased himself or it may be
inferred from the nature and extent of the decedent's wounds, or
other relevant circumstances."[53]

In the case at bar, Ernesto had nine stab wounds which caused his death within
the next 48 hours. At the time he uttered his statement accusing Gary and
Alberto of stabbing him, his body was already very rapidly deteriorating, as
shown by his inability to speak and write towards the end of the questioning.

We have considered that a dying declaration is entitled to the highest credence,

for no person who knows of his impending death would make a careless or false
accusation. When a person is at the point of death, every motive of falsehood is
silenced and the mind is induced by the most powerful consideration to speak
the truth.[54] It is hard to fathom that Ernesto, very weak as he was and with
his body already manifesting an impending demise, would summon every
remaining strength he had just to lie about his true assailants, whom he
obviously would want to bring to justice.

The killing of Ernesto is qualified by treachery

Emerito had testified that he saw Ernesto being held by two persons, while Gary
and Alberto were stabbing him with fan knives:

Q When you said "lalabas po sana," what do you mean by that?

A I am at the door and saw what happened.

Q What did you see?

A I saw my stepfather being held by two persons and being
stabbed.
 Q Will you describe the appearance of your stepfather and the 2
persons whom according to you were stabbing your stepfather
at that time?

A My stepfather is "lupaypay" and he was being stabbed.

Q When you said "lupaypay," will you describe to this Honorable

Court his position and appearance?
A When I saw my stepfather he was about to fall on the ground.

Q Could you describe their appearance?

A They were helping each other in stabbing my grandfather. (sic)

Q Those two persons whom you saw and who stabbed your
stepfather in the evening of October 23, 1999 if they are now
in Court, will you be able to identify them?
A Yes, sir.

Q Could you please point to those 2 persons?

A (Witness pointing to the persons who, when asked answered to
the name of Alberto Tabarnero and Gary Tabarnero)

Q What was the position of Alberto Tabarnero in that stabbing

incident?
A He was the one whom I saw stabbed last my stepfather.

Q What about Gary, what is his position?

A He was helping in the stabbing.

xxxx

Q What kind of weapon or instrument were used by Gary and

Alberto?
A Fan knife, sir.

Q Both of them were armed by a knife?

A Yes, sir.[55]

From said testimony, it seems uncertain whether Emerito saw the very first
stabbing being thrust. Thus, the defense asseverates that since Emerito failed to
see how the attack commenced, the qualifying circumstance of treachery cannot
be considered, citing People v. Amamangpang,[56] People v. Icalla,[57] and
People v. Sambulan.[58] In said three cases, this Court held that treachery
cannot be appreciated as the lone eyewitness did not see the commencement of
the assault.

Treachery is defined under Article 14(16) of the Revised Penal Code, which
provides:

There is treachery when the offender commits any of the crimes

against the person, employing means, methods, or forms in the
execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the
offended party might make.

The Solicitor General argues that treachery was amply demonstrated by the
restraint upon Ernesto, which effectively rendered him defenseless and unable to
effectively repel, much less evade, the assault.[59]

We agree with the Solicitor General.

In the cases cited by the appellants, the eyewitnesses were not able to observe
any means, method or form in the execution of the killing which rendered the
victim defenseless. In Amamangpang, the first thing the witness saw was the
victim already prostrate on the bamboo floor, blood oozing from his neck and
about to be struck by the accused. In Icalla, the witnesses merely saw the
accused fleeing from the scene of the crime with a knife in his hand. In
Sambulan, the witness saw the two accused hacking the victim with a bolo.
Since, in these cases, there was no restraint upon the victims or any other
circumstance which would have rendered them defenseless, the Court ruled that
it should look into the commencement of the attack in order to determine
whether the same was done swiftly and unexpectedly. However, the swiftness
and unexpectedness of an attack are not the only means by which the
defenselessness of the victim can be ensured.

In People v. Montejo,[60] the prosecution witnesses testified that after

challenging the victim to a fight, the accused stabbed the victim in the chest
while he was held in the arms by the accused and a companion. Not requiring a
swift and unexpected commencement to the attack, the Court held:
 Thus, there is treachery where the victim was stabbed in a
defenseless situation, as when he was being held by the others while
he was being stabbed, as the accomplishment of the accused's
purpose was ensured without risk to him from any defense the victim
may offer [People v. Condemena, G.R. No. L-22426, May 29, 1968, 23
SCRA 910; People v. Lunar, G.R. No. L-15579, May 29, 1972, 45 SCRA
119.] In the instant case, it has been established that the accused-
appellant stabbed the victim on the chest while his companions held
both of the victim's arms.

In People v. Alvarado,[61] the accused and his companions shouted to the

victim: "Lumabas ka kalbo, kung matapang ka." When the victim went out of the
house, the accused's companions held the victim's hands while the accused
stabbed him. Despite the yelling which should have warned the victim of a
possible attack, the mere fact that the accused's companions held the hands of
the victim while the accused stabbed him was considered by this Court to
constitute alevosia.

We, therefore, rule that the killing of Ernesto was attended by treachery.
However, even assuming for the sake of argument that treachery should not be
appreciated, the qualifying circumstance of abuse of superior strength would
nevertheless qualify the killing to murder. Despite being alleged in the
Information, this circumstance was not considered in the trial court as the same
is already absorbed in treachery. The act of the accused in stabbing Ernesto
while two persons were holding him clearly shows the deliberate use of
excessive force out of proportion to the defense available to the person attacked.
In People v. Gemoya,[62] we held:

Abuse of superior strength is considered whenever there is a

notorious inequality of forces between the victim and the
aggressor, assessing a superiority of strength notoriously
advantageous for the aggressor which is selected or taken advantage
of in the commission of the crime (People vs. Bongadillo, 234 SCRA
233 [1994]). When four armed assailants, two of whom are accused-
appellants in this case, gang up on one unarmed victim, it can only be
said that excessive force was purposely sought and employed.
(Emphasis ours.)

In all, there is no doubt that the offense committed by the accused is murder.
The award of damages should be modified to include civil indemnity ex
delito

In the Decision of the RTC convicting Gary and Alberto, it awarded the amount of
P55,600.00 as actual damages, P50,000.00 as indemnity for the death of
Ernesto, P50,000.00 as moral damages and an unidentified amount as costs of
suit.[63] The Court of Appeals modified the RTC Decision by awarding an
additional amount of P25,000.00 as exemplary damages on account of the
presence of treachery.[64]

The Solicitor General claims that the award of P55,600.00 in actual damages is
not proper, considering the lack of receipts supporting the same. However, we
held in People v. Torio[65] that:

Ordinarily, receipts should support claims of actual damages, but

where the defense does not contest the claim, it should be granted.
Accordingly, there being no objection raised by the defense on Alma
Paulo's lack of receipts to support her other claims, all the amounts
testified to are accepted. (Emphasis supplied.)

In the case at bar, Teresita Acibar's testimony was dispensed with on account of
the admission by the defense that she incurred P55,600.00 in relation to the
death of Ernesto.[66] This admission by the defense is even more binding to it
than a failure on its part to object to the testimony. We therefore sustain the
award of actual damages by the RTC, as affirmed by the Court of Appeals.

The Solicitor General likewise alleges that a civil indemnity ex delito in the
amount of P50,000.00 should be awarded. Article 2206[67] of the Civil Code
authorizes the award of civil indemnity for death caused by a crime. The award
of said civil indemnity is mandatory, and is granted to the heirs of the victim
without need of proof other than the commission of the crime.[68] However,
current jurisprudence have already increased the award of civil indemnity ex
delicto to P75,000.00.[69] We, therefore, award this amount to the heirs of
Ernesto.

Finally, the Court of Appeals was correct in awarding exemplary damages in the
amount of P25,000.00. An aggravating circumstance, whether ordinary or
qualifying, should entitle the offended party to an award of exemplary damages
within the unbridled meaning of Article 2230[70] of the Civil Code.[71]

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR.-H.C. No.

00027 dated April 29, 2005 is hereby AFFIRMED, with the MODIFICATION
that appellants Alberto and Gary Tabarnero are further ordered to pay the heirs
of Ernesto Canatoy the amount of P75,000.00 as civil indemnity.

SO ORDERED.

Puno, C.J., Chairperson, Carpio Morales, Brion,* and Villarama, Jr., JJ., concur.

* Associate Justice Arturo D. Brion was designated to sit as additional member

replacing Associate Justice Lucas P. Bersamin per Raffle dated 18 January 2010.

[1] Penned by Associate Justice Andres B. Reyes, Jr. with Associate Justices

Lucas P. Bersamin (now a member of this Court) and Celia C. Librea-Leagogo,

concurring; rollo, pp. 3-27.

[2] Records, pp. 139-150.

[3] Id. at 2.

[4] Id. at 8-9.

[5] TSN, Aug. 20, 2001, p. 5.

[6] Records, pp. 18-19.

[7] Gary testified that Ernesto was Teresita's husband (TSN, June 4, 2001, p. 4),

but Teresita's testimony for the prosecution would later be dispensed with on the
admission by the defense that Teresita is Ernesto's common-law wife.

[8] TSN, June 4, 2001, pp. 2-9.

[9] Id. at 9.

[10] Id. at 9-10.

[11] TSN, July 23, 2001, pp. 4-5.

[12] Id. at 5-6.

[13] TSN, August 20, 2001, p. 2; TSN, September 3, 2001, p. 5.

[14] TSN, August 20, 2001, p. 2.

[15] Id. at 3-4.

[16] Id. at 5-11.

[17] TSN, September 3, 2001, pp. 2-4.

[18] Id. at 4-6.

[19] Id. at 7-10.

[20] Id. at 10-11.

[21] TSN, November 5, 2001, p. 2.

[22] Id. at 2.

[23] TSN, October 8, 2001, pp. 2-7.

[24] TSN, November 5, 2001, pp. 2-9.

[25] TSN, December 3, 2001, pp. 2-6.

[26] Exhibit C; records, p. 125.

[27] Id. at 7-13.

[28] TSN, January 7, 2002, pp. 1-4.

[29] Records, p. 145.

[30] Id. at 150.

[31] G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.

[32] Rollo, p. 2.

[33] Id. at 27.

[34] CA rollo, p. 153.

[35] Id. at 51-52.

[36] Baxinela v. People, G.R. No. 149652, March 24, 2006, 485 SCRA 331, 342.

[37] 466 Phil. 861, 870 (2004).

[38] Baxinela v. People, supra note 36.

[39] Garcia v. Court of Appeals, 441 Phil. 323, 332 (2002).

[40] Baxinela v. People, supra note 36.

[41] People v. De la Cruz, 353 Phil. 363, 381 (1998).

[42] Baxinela v. People, supra note 36.

[43] Senoja v. People, 483 Phil. 716, 724 (2004).

[44] The Court of Appeals and the Solicitor General miscomputed the length of
time before Gary surrendered himself.

[45] CA rollo, p. 129.

[46] People v. Saul, 423 Phil. 924, 936 (2001).

[47] 467 Phil. 709, 720-721 (2004).

[48] TSN, Aug. 20, 2001, p. 5.

[49] Records, p. 13.

[50] Id. at 11.

[51] TSN, October 8, 2001, pp. 4-6.

[52] TSN, December 3, 2001, p. 5.

[53] People v. Santos, 337 Phil. 334, 349 (1997).

[54] People v. Lamasan, 451 Phil. 308, 321 (2003).

[55] TSN, October 8, 2001, pp. 4-6.

[56] 353 Phil. 815, 832 (1998).

[57] 406 Phil. 380, 394 (2001).

[58] 352 Phil. 336, 350 (1998).

[59] Rollo, p. 103.

[60] G.R. No. L-68857, November 21, 1988, 167 SCRA 506, 515.

[61] 341 Phil. 725, 737 (1997).

[62] 396 Phil. 213, 221-222 (2000).

[63] Records, p. 150.

[64] CA rollo, p. 147.

[65] 452 Phil. 777, 800 (2003).

[66] Records, p. 145.

[67] Art. 2206. The amount of damages for death caused by a crime or quasi-

delict shall be at least three thousand pesos, even though there may have been
mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the
deceased, and the indemnity shall be paid to the heirs of the latter; such
indemnity shall in every case be assessed and awarded by the court, unless the
deceased on account of permanent physical disability not caused by the
defendant, had no earning capacity at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of
Article 291, the recipient who is not an heir called to the decedent's inheritance
by the law of testate or intestate succession, may demand support from the
person causing the death, for a period not exceeding five years, the exact
duration to be fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the
deceased may demand moral damages for mental anguish by reason of the
death of the deceased.

[68] People v. Honor, G.R. No. 175945, April 7, 2009, 584 SCRA 546, 560.

[69] People v. Amodia, G.R. No. 173791, April 7, 2009, 584 SCRA 518, 545;

People v. De Guzman, G.R. No. 173477, February 4, 2009, 578 SCRA 54.

[70] Art. 2230. In criminal offenses, exemplary damages as a part of the civil

liability may be imposed when the crime was committed with one or more
aggravating circumstances. Such damages are separate and distinct from fines
and shall be paid to the offended party.

[71] People v. Catubig, 416 Phil. 102, 120 (2001); see People v. Beltran, Jr.,

G.R. No. 168051, 27 September 2006, 503 SCRA 715, 741.

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