SECOND DIVISION

[G.R. No. 130523. January 29, 2002.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . GARIO ALBA alias

"MARIO ALBA," accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYNOPSIS

Accused-appellant Gario Alba was convicted of murder by the Regional Trial

Court of Dumaguete City and was sentenced to suffer the penalty of reclusion
perpetua. Appellant admitted killing the victim but claimed that he did so in self-
defense. According to appellant, he stabbed the victim twice when the latter boxed him.
He added that he was in front of the victim when he stabbed him and his testimony
regarding the incident was corroborated by an eyewitness, one Ricardo Imbo.
The Supreme Court a rmed his conviction. The Court was convinced that
unlawful aggression on the part of the victim has not been shown. Appellant failed to
overcome the evidence of the prosecution that appellant stabbed the victim, Ricky
Aguilar, from behind without any provocation at all. His claim that he had a frontal
encounter with the victim was belied by the prosecution witnesses who testi ed that
they saw appellant suddenly stab the victim from behind, with the knife penetrating
from the back to the victim's front chest, on the right side. The Court also noted that
although Ricardo Imbo, a bystander at the scene of the crime, tried to corroborate
Alba's story, the trial court was unimpressed. Instead, the Court gave credence to the
testimony of prosecution witnesses Aniñon and Ybasan.

SYLLABUS

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

OF UNLAWFUL AGGRESSION AND SUFFICIENT PROVOCATION ON THE PART OF THE
VICTIM, NOT ESTABLISHED. — That there was stealth in the execution of the attack from
behind, not frontally, appears clear from Aniñon's testimony. This point was corroborated
by prosecution witness, Roland Ybasan, who also witnessed the incident. Aniñon and
Ybasan had no ulterior motive to implicate appellant, much less to falsely testify against
him. That is why their testimonies were given full faith and credit by the trial court. Under
these circumstances, the claim of self-defense by appellant has no leg to stand on. Clearly
there was no unlawful aggression. Nor was there su cient provocation shown on the part
of the victim. Appellant's attack from behind succeeded to mortally wound the victim,
Ricky Aguilar, who had no weapon to defend himself nor any one to rush to his aid.
2. ID.; QUALIFYING CIRCUMSTANCES; TREACHERY; THE NATURE AND EXTENT
OF THE STAB WOUNDS CONFIRM THE TREACHEROUS NATURE OF THE ATTACK. — Thus,
this court is in full accord with the conclusion of the trial court that treachery attended the
commission of the crime by appellant. As hereafter explained, however, in this case such
treachery is only an aggravating, and not a qualifying circumstance. There is treachery
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 when the offender commits any of the crimes against persons 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. Its essence lies in the adoption of ways that avoid or neutralize any resistance which
may be put up by the offended party. Aniñon and Ybasan testi ed on how the attack on the
victim by appellant commenced and progressed. The nature and extent of the stab
wounds con rm the treacherous attack on appellant. In People vs. Delgado, there was
treachery, as the stabbing was from behind, done in a sudden and unexpected manner
while the deceased was sitting and his head down on his hands. And, in People vs. Melgar,
alevosia attended the killing where the victim was suddenly and without warning stabbed
at the back of his nape by the assailant from behind with a double-bladed knife. That
treachery quali ed the killing in this case is indubitable as the attack was done from
behind and in such manner as to completely surprise the victim and makes him a
defenseless target.
3. ID.; ID.; ID.; CONSIDERED ONLY AS A GENERIC AGGRAVATING
CIRCUMSTANCE IF NOT SPECIFIED IN THE INFORMATION; CASE AT BAR. — We note
however, that treachery, though stated in the information, was not alleged with speci city
as qualifying the killing to murder. Pursuant to the provisions of the Revised Rules of
Criminal Procedure, the information should state not only the designation of the offense
and the acts and omissions constituting it but shall also specify its qualifying and
aggravating circumstances. Guided by the established rule that when a penal statute,
whether substantive or remedial and procedural, is favorable to the accused, the courts
shall give it a retroactive application. Thus, we held that since the information in this case
failed to specify treachery as a circumstance qualifying the killing to murder, under the
present Revised Rules of Criminal Procedure, treachery has to be considered a generic
aggravating circumstance only. CAaSED

4. ID.; ID.; EVIDENT PREMEDITATION; ELEMENTS THEREOF, NOT

ESTABLISHED. — Anent the issue on evident premeditation, we agree with the trial court
that such was not clearly established. There is no su cient evidence to show (a) the time
when the offender determined to commit the crime, (b) that the culprit had clung to his
determination, and (c) a su cient interval of time between the determination and
execution of the crime to allow him to re ect upon the consequences of his act. These
elements of evident premeditation must be established with equal certainty and clarity as
the criminal act itself before it can be appreciated as a qualifying circumstance.

DECISION

QUISUMBING , J : p

Before us is an appeal from a decision 1 dated March 24, 1997, of the Regional Trial
Court, Branch 33, in Dumaguete City, in Criminal Case No. 10632, convicting appellant
Gario Alba alias "Mario Alba" of the crime of murder under Article 248 of the Revised Penal
Code, before its amendment by Republic Act No. 7659.
On February 9, 1993, an Information was led against Alba, charging him with
murder allegedly committed as follows:
That at about 5:30 o'clock in the afternoon of January 31, 1993, at sitio
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 Pananlaya-an, barangay Datagon, municipality of Pamplona, province of Negros
Oriental, Philippines and within the jurisdiction of this Honorable Court, that
above-named accused with intent to kill, treachery and evident premeditation, did
then and there wilfully, unlawfully, and feloniously attack, assault and stab one
Ricky Aguilar with the use of knife with which the accused was then armed and
provided thereby inflicting upon the body of the victim, the hereunder injuries:

Stab wound, 2 cm., 6th intercostal space, anterior, axillary line, right

Stab wound, 6 cm., level of the 1st and 2nd lumbar vertebra which
injuries caused the instantaneous death of victim, Ricky Aguilar.

Contrary to Article 248 of the Revised Penal Code. 2

During the arraignment, counsel for appellant manifested that his client was willing
to enter a plea of guilty to the lesser offense of homicide. This was rejected by the
prosecution. Thus, he pleaded not guilty to the offense charged.
Trial thereafter ensued. The prosecution presented as witnesses Dr. Quintin C.
Bascos, senior resident physician of Bais District Hospital; Esterlito Aniñon, Aguilar's
friend; and Roland Ybasan, a pedicab driver; and the victim's father, Valentin Aguilar.
DR. QUINTIN BASCOS testi ed that he conducted a post-mortem examination on
the body of the victim, Ricky Aguilar. His ndings showed that the victim suffered two (2)
stab wounds as follows: stab wound no. 1, which was located in front, right side, about 15
inches from the top of the right shoulder; and stab wound no. 2, which was found at the
right of his back, 2 inches from the vertebral lumbar. According to Dr. Bascos, the cause of
death of the victim was massive bleeding due to the injury to the artery supplying the right
kidney and the injury of the right lung causing the lung to collapse as well as the bleeding
at the right thoracic region. 3 He testi ed that these wounds were in icted by a sharp-
bladed instrument. 4
ESTERLITO ANIÑON testi ed that on January 31, 1993, at about 5:30 in the
afternoon, the victim (Ricky Aguilar) and he were having a drinking spree at Paterno
Flordeliza's store located at Pananlaya-an, Datagon, Pamplona, Negros Oriental. Aguilar
ordered a bottle of Añejo rum. They had alternate shots of the rum from a single glass.
According to the witness, when his turn to drink came, he saw appellant behind Aguilar,
and suddenly appellant stabbed Aguilar at the back with a knife that appellant held by his
left hand. He saw the knife pierce the front of the victim's chest. Appellant immediately
ed the scene while Roland Ybasan, a pedicab driver, rushed the victim to the house of
Iluminada Manahon. He explained he was not able to warn Aguilar because he was too
stunned, and his first instinct was to run for cover lest he be the next victim.
ROLAND YBASAN 5 essentially corroborated the testimony of Aniñon. 6 He testi ed
that he recognized the appellant as one of the regular passengers in his pedicab. He
recalled that from where he stood, some 5 meters away, he saw appellant stab the victim
once "at the right side of his back and the weapon penetrated the right side of the front
chest." Ybasan touched his back and his front a few inches below the right nipple, to
demonstrate the location of the victim's wound. 7
The last witness for the prosecution was VALENTIN AGUILAR, father of the victim,
who testi ed that he incurred P9,500 for the victim's co n, the wake and the burial, and
other miscellaneous expenses. 8
Appellant Gario Alba, Ricardo Imbo, a laborer; and Wilfredo Jabar Rodriguez, a
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 barangay councilman, were presented as witnesses for the defense. The defense version
of the incident showed that appellant killed the victim allegedly in self-defense. DTSaHI

Appellant testi ed 9 that in the morning of January 31, 1993, he was alone, on his
way home via Hacuton, Mamburao, Pamplona, Negros Oriental. He took this route because
the Tanjay River, where he usually passed, was inundated due to heavy downpour.
According to him, he had with him a hunting knife for his protection from marauders, who
frequented the area. He said he did not know that the carrying of weapons outside
residences was prohibited. Upon reaching Pananlaya-an in Barangay Datagon, at around
3:00 or 4:30 P.M., he took shelter by the side of a store. There were other people also
taking shelter in that area, among them, Ricky Aguilar. According to appellant, Aguilar
approached him and asked, "What is your purpose in passing here? Are you going to take
revenge against me?" Appellant said in reply that he passed by the place because his usual
route was ooded. Thereupon, according to appellant, Aguilar boxed him in the jaw which
caused him to fall to the ground. As he lay, he saw Aguilar about to pull out a hunting knife,
so he immediately stood up, pulled out his hunting knife, and stabbed Aguilar twice.
RICARDO IMBO, a laborer of Del Prado Ledesma Sugar Plantation, testi ed to
corroborate appellant's story. A resident of Layawan, Tanjay, Negros Oriental, Imbo
testified that at the time of the incident, he was at sitio Pananlaya-an, Datagon, to look for a
pig to buy for his brother's wedding. He left his house after lunch and arrived at Pananlaya-
an at about 3 o'clock in the afternoon on January 31, 1993. He had a snack in a store along
the road. Because of the heavy rain, he remained in the store's waiting shed. He noted
other people taking shelter in the shed. He also noticed appellant Alba, alone on the other
side of the road, taking shelter in a house. He said that Alba was approximately fty (50)
meters away from him. At around 5:30 P.M., as he was leaving, he saw a stranger box Alba
at the base of the latter's right arm. He noticed Alba reel and almost slump on the ground.
Alba then stood up, pulled out a knife, and stabbed the person who boxed him. 1 0
WILFREDO JABAR RODRIGUEZ, a barangay councilman, testi ed that appellant Alba
sought his advice about the incident and he told him to surrender. Rodriguez accompanied
Alba to the barangay captain who escorted the appellant to the authorities. 1 1
On March 24, 1997, the trial court found appellant guilty, sentencing him as follows:
WHEREFORE, this Court nds the accused GUILTY beyond reasonable
doubt of the offense charged in the information of MURDER, with one (1)
mitigating circumstance of voluntary surrender and the penalty imposable
consisting of one (1) divisible penalty of reclusion temporal and two (2)
indivisible penalties, that of reclusion perpetua to death, the accused is hereby
sentenced to a determinate penalty of RECLUSION PERPETUA; to indemnify the
heirs of the victim Ricky Aguilar, the sum of Fifty Thousand (P50,000.00) Pesos;
Thirty Thousand (P30,000.00) Pesos as moral damages; Twenty Thousand
(P20,000.00) Pesos as exemplary damages, and to suffer the accessory penalties
imposed by law.

xxx xxx xxx

SO ORDERED. 1 2

From the above decision, appellant timely appealed. In his brief, he impugns that
decision on the basis of a lone assignment of error, that:
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GARIO ALBA
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 GUILTY OF MURDER DESPITE CLEAR AND CONVINCING EVIDENCE THAT
TREACHERY WAS NOT PRESENT IN THE COMMISSION OF THE CRIME. 1 3

Appellant essentially owns up to the killing of the victim but claims that he did so in
self-defense. 1 4 He says that he stabbed the victim twice when the latter boxed him. He
adds that he was in front of the victim when he stabbed him. According to appellant, an
eye-witness, one Ricardo Imbo, 1 5 corroborated his testimony.
For the State, the O ce of the Solicitor General contends that appellant's claim of
self-defense pales against the clear testimony of the prosecution witnesses. According to
the OSG, stealth attended the attack against the victim, Ricky Aguilar. The OSG concludes
that appellant's conviction should be affirmed.
To exculpate an accused from any criminal liability on the ground of self-defense,
the burden of proof shifts to the accused. He must prove the following elements of self-
defense by clear and convincing evidence: (1) unlawful aggression on the part of the
victim; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack
of sufficient provocation on the part of the person defending himself. 1 6
After careful consideration of the evidence on record, we are convinced that
unlawful aggression on the part of the victim has not been shown. Appellant failed to
overcome the evidence of the prosecution that appellant stabbed the victim, Ricky Aguilar,
from behind without any provocation at all. His claim that he had a frontal encounter with
the victim was belied by witnesses Aniñon and Ybasan, who testi ed that they saw
appellant suddenly stab the victim from behind, with the knife penetrating from the back to
the victim's front chest, on the right side. We note that although Ricardo Imbo, a bystander
at the scene of the crime, tried to corroborate Alba's story, the trial court was
unimpressed. Instead, the court gave credence to the testimony of prosecution witnesses
Aniñon and Ybasan. The assessment of the trial court is generally received with great
respect and is conclusive on appeal, barring any showing of any arbitrariness or oversight
of material facts that could change the result. For it is the trial judge who directly observed
the witnesses on the stand and could detect from their conduct "the furtive lie that will
expose the hidden truth." 1 7
The trial judge gave little weight to the testimony of Imbo, because it was peppered
with improbabilities and inconsistencies. Imbo could not even tell for sure if appellant had
companions at the time of the incident. As observed by the trial court with alacrity, Imbo in
his rst testimony declared that the appellant was alone when he saw him at the time the
incident happened. 1 8 In the succeeding direct examination, Imbo changed his account and
declared that Alba had companions. 1 9 But, upon further questioning, Imbo retracted his
statement, saying that appellant had arrived alone walking but was caught in the rain. 2 0
Equally incredulous was Imbo's testimony that appellant was on the other side of the road,
some 50 meters away 2 1 from where he was standing, when he saw someone punch
appellant at the base of his right arm. 2 2 From his vantage point 50 meters away from the
appellant, it is doubtful if he could clearly see the victim hit at the base of his right arm.
Signi cantly, this version by Imbo runs counter to appellant's own testimony that he was
hit at the lower jaw. 2 3
Imbo's declaration that he saw appellant stab the victim on the chest and on the
side 2 4 is contradicted by the autopsy report revealing two wounds. The autopsy result
revealed one at the back as the entrance wound, and the other in front of the victim's chest
as the exit wound, both caused by one knife thrust. The report of Dr. Bascos did not
support the testimony of Imbo that appellant stabbed the victim twice while face to face,
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 and not from behind.
The trial court gave credence to the testimony of eyewitness Esterlito Aniñon,
instead. He categorically declared that he saw the appellant stab the victim once from
behind, with the knife piercing "through and through," so that the point of the knife exited in
the frontal area, at the right side of the victim, that is to say, the chest of the deceased.
Aniñon's narration dovetails with the physical evidence presented and explained by Dr.
Bascos who testi ed that there were two stab wounds found in the deceased's body
in icted by a sharp-bladed instrument. 2 5 One wound is 2 cm. located at the sixth
interscostal space, anterior 2 6 (front), axillary line, right, which Dr. Bascos explained to be
located at the right side of the victim about 18 inches from the top of the shoulder going
downwards. 2 7 The other wound is a 6-cm. stab wound found at the rst and second
lumbar vertebra, which Dr. Bascos demonstrated to be found at the right of the back about
two inches from the vertebral lumbar. 2 8 These ndings are consistent with the testimony
of Aniñon that appellant stabbed the victim from behind at the right side, with the knife
piercing "through and through" until the tip of the knife exited in the frontal right side of the
victim. This also explains why the wound at the front (exit wound) is much smaller (2 cms.)
than the entry wound, which is 6 centimeters wide found at the victim's back,
corresponding to the bigger blade near the handle of the knife. IEaATD

That there was stealth in the execution of the attack from behind, not frontally,
appears clear from Aniñon's testimony. This point was corroborated by prosecution
witness, Roland Ybasan, who also witnessed the incident. 2 9 Aniñon and Ybasan had no
ulterior motive to implicate appellant, much less to falsely testify against him. That is why
their testimonies were given full faith and credit by the trial court.
Under these circumstances, the claim of self-defense by appellant has no leg to
stand on. Clearly there was no unlawful aggression. Nor was there su cient provocation
shown on the part of the victim. Appellant's attack from behind succeeded to mortally
wound the victim, Ricky Aguilar, who had no weapon to defend himself nor any one to rush
to his aid.
Thus, this Court is in full accord with the conclusion of the trial court that treachery
attended the commission of the crime by appellant. As hereafter explained, however, in
this case such treachery is only an aggravating, and not a qualifying circumstance.
There is treachery when the offender commits any of the crimes against persons
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. 3 0 Its essence lies in the adoption of ways that avoid or
neutralize any resistance which may be put up by the offended party.
Aniñon and Ybasan testi ed on how the attack on the victim by appellant
commenced and progressed. The nature and extent of the stab wounds con rm the
treacherous attack on appellant. In People vs. Delgado, 3 1 there was treachery, as the
stabbing was from behind, done in a sudden and unexpected manner while the deceased
was sitting and his head down on his hands. And, in People vs. Melgar, 3 2 alevosia attended
the killing where the victim was suddenly and without warning stabbed at the back of his
nape by the assailant from behind with a double-bladed knife. That treachery quali ed the
killing in this case is indubitable as the attack was done from behind and in such manner
as to completely surprise the victim and makes him a defenseless target. 3 3
We note however, that treachery, though stated in the information, was not alleged
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 with speci city as qualifying the killing to murder. Sections 8 and 9 of the Revised Rules of
Criminal Procedure which took effect on December 1, 2000, provide:
Sec. 8. Designation of the offense. – The complaint or information
shall state the designation of the offense given by the statute, aver the acts or
omissions constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be made
to the section or subsection of the statute punishing it.
Sec. 9. Cause of the accusation. – The acts or omissions complained
of as constituting the offense and the qualifying and aggravating circumstances
must be stated in ordinary and concise language and not necessarily in the
language used in the statute but in terms su cient to enable a person of
common understanding to know what offense is being charged as well as it
qualifying and aggravating circumstances and for the court to pronounce
judgment.

Pursuant to the aforequoted provisions of the Revised Rules of Criminal Procedure,

the information should state not only the designation of the offense and the acts and
omissions constituting it but shall also specify its qualifying and aggravating
circumstances. Guided by the established rule that when a penal statute, whether
substantive or remedial and procedural, is favorable to the accused, the courts shall give it
a retroactive application. 3 4 Thus, we held that since the information in this case failed to
specify treachery as a circumstance qualifying the killing to murder, under the present
Revised Rules of Criminal Procedure, treachery has to be considered a generic aggravating
circumstance only.
Anent the issue on evident premeditation, we agree with the trial court that such was
not clearly established. There is no su cient evidence to show (a) the time when the
offender determined to commit the crime, (b) that the culprit had clung to his
determination, and (c) a su cient interval of time between the determination and
execution of the crime to allow him to re ect upon the consequences of his act. 3 5 These
elements of evident premeditation must be established with equal certainty and clarity as
the criminal act itself before it can be appreciated as a qualifying circumstance. 3 6
In sum, the crime committed by appellant is homicide and not murder. The penalty
for homicide under Article 249 37 of the Revised Penal Code is reclusion temporal. There
being one mitigating circumstance of voluntary surrender and one aggravating
circumstance of treachery, the penalty should be imposed in its medium period. Applying
the Indeterminate Sentence Law, appellant's sentence should be within the range of prision
mayor as minimum, and reclusion temporal medium as maximum.
With respect to damages, pursuant to prevailing jurisprudence, the award of moral
damages for P30,000 must be increased to P50,000. The award of P20,000 as exemplary
damages is justified by the presence of an aggravating circumstance. 3 8
WHEREFORE, the judgment of the trial court is set aside and a new one entered
nding appellant Gario Alba guilty of the crime of homicide, and sentencing him to suffer
the penalty of nine (9) years of prision mayor as minimum and fteen (15) years of
reclusion temporal medium as maximum, 3 9 to pay the heirs of the victim the amount of
P50,000 as death indemnity, P50,000 as moral damages and P20,000 as exemplary
damages. Costs de oficio.
SO ORDERED.
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 Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur.

Footnotes

1. Rollo, pp. 28-47.

2. Id. at 13.
3. TSN, July 30, 1993, p. 9.
4. Id. at 21.
5. Also spelled as "Ibasan" in some parts of the RTC Decision.
6. TSN, October 21, 1994, pp. 4-17.
7. Id. at 7.
8. TSN, June 15, 1995, pp. 4-5, 15.
9. TSN, August 21, 1995, pp. 17-24.

10. TSN, February 7, 1996, pp. 14-17.

11. TSN, December 15, 1995, pp. 9-10.
12. Rollo, pp. 46-47.
13. Id. at 85.
14. TSN, July 5, 1995, pp. 2-5.

15. TSN, February 7, 1996, pp. 16-19.

16. People v. Basadre, G.R. No. 131851, February 22, 2001, pp. 9-10.
17. People v. De La Cruz, G.R. Nos. 101000-01, 227 SCRA 278, 283 (1993).
18. TSN, February 7, 1996, p. 10.

19. Id. at 11-12.

20. Id. at 12.
21. TSN, February 7, 1996, p. 11.
22. Id. at 15.
23. TSN, August 21, 1995, pp. 20-21.

24. TSN, February 7, 1996, p. 17.

25. TSN, July 30, 1993, p. 21.
26. Defined as situated before or toward the front. Webster's New Collegiate Dictionary,
1979, p. 48.
27. TSN, July 30, 1993, p. 8.
28. Id. at 9.

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 29. TSN, October 21, 1994, pp. 5, 7, 12.
30. People vs. Abundo, et al., G.R. No. 138233, January 18, 2001, p. 17.
31. People vs. Delgado, G.R. No. 79672, 182 SCRA 343, 351 (1990).
32. People vs. Melgar, G.R. No. L-75268, 157 SCRA 718, 727 (1988).
33. People vs. Jusep, G.R. No. L-45722, 151 SCRA 248, 267 (1987).
34. People vs. Gano, G.R. No. 134373, February 28, 2001, pp. 13-14.
35. People vs. Reyes, G.R. No. 118649, 287 SCRA 229, 241 (1998).
36. Ibid.
37. ART. 249. Homicide. – Any person who, not falling within the provisions of Article 246,
shall kill another without the attendance of any of the circumstances enumerated in the
next preceding article, shall be deemed guilty of homicide and be punished by reclusion
temporal.
38. People vs. Reyes, G.R. No. 118649, 287 SCRA 229, 243-244 (1998).
39. People vs. Acaya, G.R. No. 108381, 327 SCRA 269, 282 (2000).

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