FIRST DIVISION

[G.R. No. 165483. September 12, 2006.]

RUJJERIC Z. PALAGANAS, 1 petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION

CHICO-NAZARIO, J : p

For what is a man, what has he got?

If not himself, then he has naught.
To say the things he truly feels;
And not the words of one who kneels.
The record shows I took the blows —
And did it my way!

The song evokes the bitterest passions. This is not the first time the song
"My Way" 2 has triggered violent behavior resulting in people coming to blows.
In the case at bar, the few lines of the song depicted what came to pass when
the victims and the aggressors tried to outdo each other in their rendition of the
song.
In this Petition for Review on Certiorari 3 under Rule 45 of the Revised
Rules of Court, petitioner Rujjeric Z. Palaganas prays for the reversal of the
Decision of the Court of Appeals in CA-G.R. CR No. 22689 dated 30 September
2004, 4 affirming with modification the Decision of the Regional Trial Court
(RTC), Branch 46, of Urdaneta, Pangasinan, in Criminal Cases No. U-9608, U-
9609, and U-9610 and U-9634, dated 28 October 1998, 5 finding petitioner
guilty beyond reasonable doubt of the crime of Homicide under Article 249 of
the Revised Penal Code, and two (2) counts of Frustrated Homicide under
Article 249 in relation to Articles 6 and 50 of the same Code.
On 21 April 1998, petitioner and his older brother, Ferdinand Z. Palaganas
(Ferdinand), were charged under four (4) separate Informations 6 for two (2)
counts of Frustrated Murder, one (1) count of Murder, and one (1) count for
Violation of COMELEC Resolution No. 2958 7 relative to Article 22, Section 261,
of the Omnibus Election Code, 8 allegedly committed as follows:
CRIMINAL CASE NO. U-9608

That on or about January 16, 1998, in the evening at Poblacion,

Manaoag, Pangasinan and within the jurisdiction of this Honorable
Court, the above-named accused armed with an unlicensed firearm,
with intent to kill, treachery and evident premeditation, conspiring
together, did then and there willfully, unlawfully and feloniously shoot
SERVILLANO FERRER, JR. y Juanatas, inflicting upon him "gunshot
wound penetrating perforating abdomen, urinary bladder, rectum
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 bullet sacral region," the accused having thus performed all the acts of
execution which would have produced the crime of Murder as a
consequence, but which nevertheless, did not produce it by reason of
the causes independent of the will of the accused and that is due to the
timely medical assistance rendered to said Servillano J. Ferrer, Jr. which
prevented his death, to his damage and prejudice.

CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the
Revised Penal Code, as amended.

CRIMINAL CASE NO. U-9609

That on or about January 16, 1998, in the evening at Poblacion,

Manaoag, Pangasinan and within the jurisdiction of this Honorable
Court, the above-named accused armed with an unlicensed firearm,
with intent to kill, treachery and evident premeditation, conspiring
together, did then and there willfully, unlawfully and feloniously shoot
MICHAEL FERRER alias "Boying Ferrer", inflicting upon him gunshot
wound on the right shoulder, the accused having thus performed all
the acts of execution which would have produced the crime of murder
as a consequence, but which nevertheless, did not produce it by
reason of the causes independent of the will of the accused and that is
due to the medical assistance rendered to said Michael "Boying" Ferrer
which prevented his death, to his damage and prejudice.

CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the
Revised Penal Code, as amended.

CRIMINAL CASE NO. U-9610

That on or about January 16, 1998, in the evening at Poblacion,

Manaoag, Pangasinan and within the jurisdiction of this Honorable
Court, the above-named accused armed with an unlicensed firearm,
with intent to kill, treachery and evident premeditation, conspiring
together, did then and there willfully, unlawfully and feloniously shoot
MELTON FERRER alias "TONY FERRER", inflicting upon him mortal
gunshot wounds in the head and right thigh which caused the
instantaneous death of said Melton "Tony" Ferrer, to the damage
and prejudice of his heirs.

CONTRARY to Art. 248 of the Revised Penal Code, as amended by

R.A. 7659.

CRIMINAL CASE NO. U-9634

That on or about January 16, 1998 which is within the election

period at Poblacion, Manaoag, Pangasinan, and within the jurisdiction
of this Honorable Court, the above-named accused did then and there
willfully, unlawfully and feloniously bear and carry one (1) caliber .38
without first securing the necessary permit/license to do the same.

CONTRARY to COMELEC RES. 2958 in relation with SEC. 261 of

the OMNIBUS ELECTION CODE, as amended. 9 (Underscoring supplied.)

When arraigned on separate dates, 10 petitioner and Ferdinand entered

separate pleas of "Not Guilty." Upon motion of Ferdinand, 11 the four cases
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 were consolidated and were assigned to Branch 46 of the RTC in Urdaneta,
Pangasinan. 12
The factual antecedents as viewed by the prosecution, are summarized in
the Comment dated 18 April 2005 of the Office of the Solicitor General, 13 to
wit:
On January 16, 1998, around 8:00 in the evening, brothers
Servillano, [Melton] and Michael, all surnamed Ferrer were having a
drinking spree in their house because [Melton], who was already living
in San Fernando, La Union, visited his three brothers and mother at
their house in Sitio Baloking, Poblacion, Manaoag, Pangasinan. At 9:45
in the evening, the three brothers decided to proceed to Tidbits
Videoke bar located at the corner of Malvar and Rizal Streets,
Poblacion, Manaoag to continue their drinking spree and to sing. Inside
the karaoke bar, they were having a good time, singing and drinking
beer.
Thereafter, at 10:30 in the evening, Jaime Palaganas arrived
together with Ferdinand Palaganas and Virgilio Bautista. At that time,
only the Ferrer brothers were the customers in the bar. The two groups
occupied separate tables. Later, when Jaime Palaganas was singing,
[Melton] Ferrer sang along with him as he was familiar with the song
[My Way]. Jaime however, resented this and went near the table of the
Ferrer brothers and said in Pangasinan dialect " As if you are tough
guys." Jaime further said "You are already insulting me in that way."
Then, Jaime struck Servillano Ferrer with the microphone, hitting the
back of his head. A rumble ensued between the Ferrer brothers on the
one hand, and the Palaganases, on the other hand. Virgilio Bautista did
not join the fray as he left the place. During the rumble, Ferdinand
went out of the bar. He was however pursued by Michael. When
Servillano saw Michael, he also went out and told the latter not to
follow Ferdinand. Servillano and Michael then went back inside the bar
and continued their fight with Jaime.

Meantime, Edith Palaganas, sister of Jaime and the owner of the

bar, arrived and pacified them. Servillano noticed that his wristwatch
was missing. Unable to locate the watch inside the bar, the Ferrer
brothers went outside. They saw Ferdinand about eight (8) meters
away standing at Rizal Street. Ferdinand was pointing at them and said
to his companion, later identified as petitioner [Rujjeric] Palaganas,
"Oraratan paltog mo lara ", meaning "They are the ones, shoot them."
Petitioner then shot them hitting Servillano first at the left side of the
abdomen, causing him to fall on the ground, and followed by [Melton]
who also fell to the ground. When Servillano noticed that [Melton] was
no longer moving, he told Michael "Bato, bato." Michael picked up
some stones and threw them at petitioner and Ferdinand. The latter
then left the place. Afterwards, the police officers came and the Ferrer
brothers were brought to the Manaoag Hospital and later to Villaflor
Hospital in Dagupan. Servillano later discovered that [Melton] was
fatally hit in the head while Michael was hit in the right shoulder.

On the other hand, the defense, in its Appellant's Brief dated 3 December
1999, 14 asserted the following set of facts:
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 On January 16, 1998, at around 11:00 in the evening, after a
drinking session at their house, the brothers Melton (Tony), Servillano
(Junior) and Michael (Boying), all surnamed Ferrer, occupied a table
inside the Tidbits Café and Videoke Bar and started drinking and
singing. About thirty minutes later, Jaime Palaganas along with his
nephew Ferdinand (Apo) and friend Virgilio Bautista arrived at the bar
and occupied a table near that of the Ferrers'.
After the Ferrers' turn in singing, the microphone was handed
over to Jaime Palaganas, who then started to sing. On his third song
[My Way], Jaime was joined in his singing by Tony Ferrer, who sang
loudly and in an obviously mocking manner. This infuriated Jaime, who
then accosted Tony, saying, "You are already insulting us." The
statement resulted in a free for all fight between the Ferrers', on one
hand, and the Palaganases on the other. Jaime was mauled and
Ferdinand, was hit on the face and was chased outside of the bar by
Junior and Boying Ferrer.
Ferdinand then ran towards the house of the appellant Rujjeric
Palaganas, his brother, and sought the help of the latter. Rujjeric,
stirred from his sleep by his brother's shouts, went out of his house
and, noticing that the van of his uncle was in front of the Tidbits
Videoke Bar, proceeded to that place. Before reaching the bar,
however, he was suddenly stoned by the Ferrer brothers and was hit
on different parts of his body, so he turned around and struggled to run
towards his house. He then met his brother, Ferdinand, going towards
the bar, so he tugged him and urged him to run towards the opposite
direction as the Ferrer brothers continued pelting them with large
stones. Rujjeric then noticed that Ferdinand was carrying a gun, and,
on instinct, grabbed the gun from the latter, faced the Ferrer brothers
and fired one shot in the air to force the brothers to retreat. Much to
his surprise, however, the Ferrer brothers continued throwing stones
and when (sic) the appellant was again hit several times. Unable to
bear the pain, he closed his eyes and pulled the trigger.

On 28 October 1998, the trial court rendered its Decision finding

petitioner guilty only of the crime of Homicide and two (2) counts of Frustrated
Homicide. 15 He was, however, acquitted of the charge of Violation of COMELEC
Resolution No. 2958 in relation to Section 261 of the Omnibus Election Code. 16
On the other hand, Ferdinand was acquitted of all the charges against him. 17

In holding that petitioner is liable for the crimes of Homicide and

Frustrated Homicide but not for Murder and Frustrated Murder, the trial court
explained that there was no conspiracy between petitioner and Ferdinand in
killing Melton and wounding Servillano and Michael. 18 According to the trial
court, the mere fact that Ferdinand "pointed" to where the Ferrer brothers were
and uttered to petitioner "Araratan, paltog mo lara!" (They are the ones, shoot
them!), does not in itself connote common design or unity of purpose to kill. It
also took note of the fact that petitioner was never a participant in the rumble
inside the Tidbits Cafe Videoke Bar (videoke bar) on the night of 16 January
1998. He was merely called by Ferdinand to rescue their uncle, Jaime, who was
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 being assaulted by the Ferrer brothers. It further stated that the shooting was
instantaneous and without any prior plan or agreement with Ferdinand to
execute the same. It found that petitioner is solely liable for killing Melton and
for wounding Servillano and Michael, and that Ferdinand is not criminally
responsible for the act of petitioner.

Further, it declared that there was no treachery that will qualify the
crimes as murder and frustrated murder since the Ferrer brothers were given
the chance to defend themselves during the shooting incident by stoning the
petitioner and Ferdinand. 19 It reasoned that the sudden and unexpected
attack, without the slightest provocation on the part of the victims, was absent.
In addition, it ratiocinated that there was no evident premeditation as there
was no sufficient period of time that lapsed from the point where Ferdinand
called the petitioner for help up to the point of the shooting of the Ferrer
brothers. 20 Petitioner was sleeping at his house at the time he heard Ferdinand
calling him for help. Immediately, petitioner, still clad in pajama and sleeveless
shirt, went out of his room to meet Ferdinand. Thereafter, both petitioner and
Ferdinand went to the videoke bar where they met the Ferrer brothers and,
shortly afterwards, the shooting ensued. In other words, according to the trial
court, the sequence of the events are so fast that it is improbable for the
petitioner to have ample time and opportunity to then plan and organize the
shooting.

Corollarily, it also stated that petitioner cannot successfully invoke self-

defense since there was no actual or imminent danger to his life at the time he
and Ferdinand saw the Ferrer brothers outside the videoke bar. 21 It noted that
when petitioner and Ferdinand saw the Ferrer brothers outside the videoke bar,
the latter were not carrying any weapon. Petitioner then was free to run or take
cover when the Ferrer brothers started pelting them with stones. Petitioner,
however, opted to shoot the Ferrer brothers. It also stated that the use by
petitioner of a gun was not a reasonable means to prevent the attack of the
Ferrer brothers since the latter were only equipped with stones, and that the
gun was deadlier compared to stones. Moreover, it also found that petitioner
used an unlicensed firearm in shooting the Ferrer brothers. 22

As regards the Violation of COMELEC Resolution No. 2958, in relation to

Section 261 of the Omnibus Election Code, the trial court acquitted the
petitioner of the offense as his use and possession of a gun was not for the
purpose of disrupting election activities. 23 In conclusion, the trial court held:
WHEREFORE, JUDGMENT is hereby rendered as follows:
1. Under CRIM. CASE NO. U-9610, [Rujjeric] PALAGANAS is hereby
CONVICTED beyond reasonable doubt of the crime of HOMICIDE
(Not Murder) with the use of an unlicensed firearm. The penalty
imposable is in its maximum period which is 20 years. The Court
sentences [Rujjeric] Palaganas to suffer the penalty of Reclusion
Temporal in its maximum period or 20 years of imprisonment;
and to pay the heirs of [MELTON] Ferrer the sum of P7,791.50 as
actual medical expenses of [MELTON] Ferrer; P500,000.00 as
moral damages representing unearned income of [MELTON];
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 P50,000.00 for the death of [MELTON]; P50,000.00 for exemplary
damages and P100,000.00 for burial and funeral expenses.
Ferdinand Palaganas is hereby ACQUITTED for failure of the
prosecution to prove conspiracy and likewise, for failure to prove
the guilt of Ferdinand Palaganas beyond reasonable doubt.
2. Under CRIM. CASE NO. U-9608, [Rujjeric] PALAGANAS is hereby
CONVICTED beyond reasonable doubt of the crime of
FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of
an unlicensed firearm, the Court sentences him to suffer the
penalty of Prision Mayor in its maximum period or 12 years of
imprisonment and to pay Servillano Ferrer the sum of
P163,569.90 for his medical expenses and P50,000.00 for
exemplary damages;
Ferdinand Palaganas is ACQUITTED for failure of the prosecution
to prove conspiracy and likewise, for failure to prove the guilt of
Ferdinand Palaganas beyond reasonable doubt.
3. Under CRIM. CASE NO. U-9609, [Rujjeric] PALAGANAS is hereby
CONVICTED beyond reasonable doubt of the crime of
FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of
an unlicensed firearm, the Court sentences him to suffer the
penalty of Prision Mayor in its maximum period or 12 years of
imprisonment; and to pay Michael Ferrer the sum of P2,259.35
for his medical expenses and P50,000.00 for exemplary
damages;
Ferdinand Palaganas is ACQUITTED for failure of the prosecution
to prove conspiracy and likewise, for failure to prove the guilt of
Ferdinand Palaganas beyond reasonable doubt.
Ordering accused [Rujjeric] Palaganas to pay Mrs. Elena Ferrer,
the mother of the Ferrer brothers, the amount of P100,000.00 as
attorney's fees in CRIM. CASES NOS. U-9608, U-9609, U-9610.

4. Under CRIM. CASE NO. U-9634, for failure of the prosecution to

prove the guilt of [Rujjeric] Palaganas beyond reasonable doubt
of the crime of Violation of COMELEC Resolution No. 2958 in
relation with Section 261 of the Omnibus Election Code, the Court
ACQUITS [RUJJERIC] PALAGANAS. 24

Aggrieved, the petitioner appealed the foregoing Decision of the RTC

dated 28 October 1998, before the Court of Appeals. In its Decision dated 30
September 2004, the Court of Appeals affirmed with modifications the assailed
RTC Decision. In modifying the Decision of the trial court, the appellate court
held that the mitigating circumstance of voluntary surrender under Article 13,
No. 7, of the Revised Penal Code should be appreciated in favor of petitioner
since the latter, accompanied by his counsel, voluntarily appeared before the
trial court, even prior to its issuance of a warrant of arrest against him. 25 It
also stated that the Indeterminate Sentence Law should be applied in imposing
the penalty upon the petitioner. 26 The dispositive portion of the Court of
Appeals' Decision reads:

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 WHEREFORE, the judgment of conviction is hereby AFFIRMED,
subject to the MODIFICATION that the penalty to be imposed for the
crimes which the appellant committed are as follows:
(1) For Homicide (under Criminal Case No. U-9610), the
appellant is ordered to suffer imprisonment of ten (10) years of prision
mayor as minimum to seventeen (17) years and four (4) months of
reclusion temporal as maximum. Appellant is also ordered to pay the
heirs of Melton Ferrer civil indemnity in the amount of P50,000.00,
moral damages in the amount of P50,000.00 without need of proof and
actual damages in the amount of P43,556.00.

(2) For Frustrated Homicide (under Criminal Case No. U-

9609), the appellant is hereby ordered to suffer imprisonment of four
(4) years and two (2) months of prision correcional as minimum to ten
(10) years of prision mayor as maximum. Appellant is also ordered to
pay Michael Ferrer actual damages in the amount of P2,259.35 and
moral damages in the amount of P30,000.00.
(3) For Frustrated Homicide (under Criminal Case No. U-
9608), the appellant is hereby penalized with imprisonment of four (4)
years and two (2) months of prision correcional as minimum to ten (10)
years of prision mayor as maximum. Appellant is also ordered to pay
Servillano Ferrer actual damages in the amount of P163,569.90 and
moral damages in the amount of P30,000.00. 27

On 16 November 2004, petitioner lodged the instant Petition for Review

before this Court on the basis of the following arguments:
I.

THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE

JUDGMENT OF CONVICTION OF THE TRIAL COURT.
II.

THE HONORABLE COURT OF APPEALS ERRED IN NOT ACQUITTING

ACCUSED-APPELLANT ON THE GROUND OF LAWFUL SELF-DEFENSE. 28

Anent the first issue, petitioner argued that all the elements of a valid
self-defense are present in the instant case and, thus, his acquittal on all the
charges is proper; that when he fired his gun on that fateful night, he was then
a victim of an unlawful aggression perpetrated by the Ferrer brothers; that he,
in fact, sustained an injury in his left leg and left shoulder caused by the stones
thrown by the Ferrer brothers; that the appellate court failed to consider a
material evidence described as "Exhibit O"; that "Exhibit O" should have been
given due weight since it shows that there was slug embedded on the sawali
wall near the sign "Tidbits Café and Videoke Bar"; that the height from which
the slug was taken was about seven feet from the ground; that if it was true
that petitioner and Ferdinand were waiting for the Ferrer brothers outside the
videoke bar in order to shoot them, then the trajectory of the bullets would
have been either straight or downward and not upward considering that the
petitioner and the Ferrer brothers were about the same height (5'6"-5'8"); that
the slug found on the wall was, in fact, the "warning shot" fired by the
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 petitioner; and, that if this exhibit was properly appreciated by the trial court,
petitioner would be acquitted of all the charges. 29

Moreover, petitioner contended that the warning shot proved that that
the Ferrer brothers were the unlawful aggressors since there would have been
no occasion for the petitioner to fire a warning shot if the Ferrer brothers did
not stone him; that the testimony of Michael in the trial court proved that it was
the Ferrer brothers who provoked petitioner to shoot them; and that the Ferrer
brothers pelted them with stones even after the "warning shot." 30
Petitioner's contention must fail.
Article 11, paragraph (1), of the Revised Penal Code provides for the
elements and/or requisites in order that a plea of self-defense may be validly
considered in absolving a person from criminal liability, viz:
ART. 11. Justifying circumstances. — The following do not
incur any criminal liability:
1. Anyone who acts in defense of his person or rights,
provided that the following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent
or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself. . . . .

As an element of self-defense, unlawful aggression refers to an assault or

attack, or a threat thereof in an imminent and immediate manner, which places
the defendant's life in actual peril. 31 It is an act positively strong showing the
wrongful intent of the aggressor and not merely a threatening or intimidating
attitude. 32 It is also described as a sudden and unprovoked attack of
immediate and imminent kind to the life, safety or rights of the person
attacked. 33
There is an unlawful aggression on the part of the victim when he puts in
actual or imminent peril the life, limb, or right of the person invoking self-
defense. There must be actual physical force or actual use of weapon. 34 In
order to constitute unlawful aggression, the person attacked must be
confronted by a real threat on his life and limb; and the peril sought to be
avoided is imminent and actual, not merely imaginary. 35
In the case at bar, it is clear that there was no unlawful aggression on the
part of the Ferrer brothers that justified the act of petitioner in shooting them.
There were no actual or imminent danger to the lives of petitioner and
Ferdinand when they proceeded and arrived at the videoke bar and saw thereat
the Ferrer brothers. It appears that the Ferrer brothers then were merely
standing outside the videoke bar and were not carrying any weapon when the
petitioner arrived with his brother Ferdinand and started firing his gun. 36
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 Assuming, arguendo, that the Ferrer brothers had provoked the petitioner
to shoot them by pelting the latter with stones, the shooting of the Ferrer
brothers is still unjustified. When the Ferrer brothers started throwing stones,
petitioner was not in a state of actual or imminent danger considering the wide
distance (4-5 meters) of the latter from the location of the former. 37 Petitioner
was not cornered nor trapped in a specific area such that he had no way out,
nor was his back against the wall. He was still capable of avoiding the stones by
running away or by taking cover. He could have also called or proceeded to the
proper authorities for help. Indeed, petitioner had several options in avoiding
dangers to his life other than confronting the Ferrer brothers with a gun.
The fact that petitioner sustained injuries in his left leg and left shoulder,
allegedly caused by the stones thrown by the Ferrer brothers, does not signify
that he was a victim of unlawful aggression or that he acted in self-defense. 38
There is no evidence to show that his wounds were so serious and severe. The
superficiality of the injuries sustained by the petitioner is no indication that his
life and limb were in actual peril. 39

Petitioner's assertion that, despite the fact that he fired a warning shot,
the Ferrer brothers continued to pelt him with stones, 40 will not matter
exonerate him from criminal liability. Firing a warning shot was not the last and
only option he had in order to avoid the stones thrown by the Ferrer brothers.
As stated earlier, he could have run away, or taken cover, or proceeded to the
proper authorities for help. Petitioner, however, opted to shoot the Ferrer
brothers.
It is significant to note that the shooting resulted in the death of Melton,
and wounding of Servillano and Michael. With regard to Melton, a bullet hit his
right thigh, and another bullet hit his head which caused his instant death. 41
As regards Servillano, a bullet penetrated two of his vital organs, namely, the
large intestine and urinary bladder. 42 He underwent two (2) surgeries in order
to survive and fully recover. 43 Michael, on the other hand, sustained a gunshot
wound on the right shoulder. 44 It must also be noted that the Ferrer brothers
were shot near the videoke bar, which contradict petitioner's claim he was
chased by the Ferrer brothers. Given the foregoing circumstances, it is difficult
to believe that the Ferrer brothers were the unlawful aggressors. As correctly
observed by the prosecution, if the petitioner shot the Ferrer brothers just to
defend himself, it defies reason why he had to shoot the victims at the vital
portions of their body, which even led to the death of Melton who was shot at
his head. 45 It is an oft-repeated rule that the nature and number of wounds
inflicted by the accused are constantly and unremittingly considered important
indicia to disprove a plea of self-defense. 46
Let it not be forgotten that unlawful aggression is a primordial element in
self-defense. 47 It is an essential and indispensable requisite, for without
unlawful aggression on the part of the victim, there can be, in a jural sense, no
complete or incomplete self-defense. 48 Without unlawful aggression, self-
defense will not have a leg to stand on and this justifying circumstance cannot
and will not be appreciated, even if the other elements are present. 49 To our
mind, unlawful aggression, as an element of self-defense, is wanting in the
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 instant case.
The second element of self-defense requires that the means employed by
the person defending himself must be reasonably necessary to prevent or repel
the unlawful aggression of the victim. The reasonableness of the means
employed may take into account the weapons, the physical condition of the
parties and other circumstances showing that there is a rational equivalence
between the means of attack and the defense. 50 In the case at bar, the
petitioner's act of shooting the Ferrer brothers was not a reasonable and
necessary means of repelling the aggression allegedly initiated by the Ferrer
brothers. As aptly stated by the trial court, petitioner's gun was far deadlier
compared to the stones thrown by the Ferrer brothers. 51

Moreover, we stated earlier that when the Ferrer brothers allegedly threw
stones at the petitioner, the latter had other less harmful options than to shoot
the Ferrer brothers. Such act failed to pass the test of reasonableness of the
means employed in preventing or repelling an unlawful aggression.
With regard to the second issue, petitioner asserts that the Court of
Appeals erred in not acquitting him on the ground of lawful self-defense.
Petitioner's argument is bereft of merit.

In resolving criminal cases where the accused invokes self-defense to

escape criminal liability, this Court consistently held that where an accused
admits killing the victim but invokes self-defense, it is incumbent upon the
accused to prove by clear and convincing evidence that he acted in self-
defense. 52 As the burden of evidence is shifted on the accused to prove all the
elements of self-defense, he must rely on the strength of his own evidence and
not on the weakness of the prosecution. 53

As we have already found, there was no unlawful aggression on the part

of the Ferrer brothers which justified the act of petitioner in shooting them. We
also ruled that even if the Ferrer brothers provoked the petitioner to shoot
them, the latter's use of a gun was not a reasonable means of repelling the act
of the Ferrer brothers in throwing stones. It must also be emphasized at this
point that both the trial court and the appellate court found that petitioner
failed to established by clear and convincing evidence his plea of self-defense.
In this regard, it is settled that when the trial court's findings have been
affirmed by the appellate court, said findings are generally conclusive and
binding upon this Court. 54 In the present case, we find no compelling reason to
deviate from their findings. Verily, petitioner failed to prove by clear and
convincing evidence that he is entitled to an acquittal on the ground of lawful
self-defense.

On another point, while we agree with the trial court and the Court of
Appeals that petitioner is guilty of the crime of Homicide for the death of Melton
in Criminal Case No. U-9610, and Frustrated Homicide for the serious injuries
sustained by Servillano in Criminal Case No. U-9608, we do not, however,
concur in their ruling that petitioner is guilty of the crime of Frustrated
Homicide as regards to Michael in Criminal Case No. U-9609. We hold that
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 petitioner therein is guilty only of the crime of Attempted Homicide.
Article 6 of the Revised Penal Code states and defines the stages of a
felony in the following manner:
ART. 6. Consummated, frustrated, and attempted felonies.
— Consummated felonies, as well as those which are frustrated and
attempted, are punishable.

A felony is consummated when all the elements necessary for the

for its execution and accomplishment are present; and it 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 or causes independent of the will of the
perpetrator.

There is an attempt when the offender commences the

commission of a felony directly by overt acts, and does not perform all
the acts of execution which should produce the felony by reason of
some cause or accident other than his own spontaneous desistance
(Italics supplied).

Based on the foregoing provision, the distinctions between frustrated and

attempted felony are summarized as follows:
1.) In frustrated felony, the offender has performed all the acts of
execution which should produce the felony as a consequence;
whereas in attempted felony, the offender merely commences
the commission of a felony directly by overt acts and does not
perform all the acts of execution.
2.) In frustrated felony, the reason for the non-accomplishment of
the crime is some cause independent of the will of the
perpetrator; on the other hand, in attempted felony, the reason
for the non-fulfillment of the crime is a cause or accident other
than the offender's own spontaneous desistance.

In addition to these distinctions, we have ruled in several cases that when

the accused intended to kill his victim, as manifested by his use of a deadly
weapon in his assault, and his victim sustained fatal or mortal wound/s but did
not die because of timely medical assistance, the crime committed is frustrated
murder or frustrated homicide depending on whether or not any of the
qualifying circumstances under Article 249 of the Revised Penal Code are
present. 55 However, if the wound/s sustained by the victim in such a case were
not fatal or mortal, then the crime committed is only attempted murder or
attempted homicide. 56 If there was no intent to kill on the part of the accused
and the wound/s sustained by the victim were not fatal, the crime committed
may be serious, less serious or slight physical injury. 57

Based on the medical certificate of Michael, as well as the testimony of

the physician who diagnosed and treated Michael, the latter was admitted and
treated at the Dagupan Doctors-Villaflor Memorial Hospital for a single gunshot
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 wound in his right shoulder caused by the shooting of petitioner. 58 It was also
stated in his medical certificate that he was discharged on the same day he
was admitted and that the treatment duration for such wound would be for six
to eight days only. 59 Given these set of undisputed facts, it is clear that the
gunshot wound sustained by Michael in his right shoulder was not fatal or
mortal since the treatment period for his wound was short and he was
discharged from the hospital on the same day he was admitted therein.
Therefore, petitioner is liable only for the crime of attempted homicide as
regards Michael in Criminal Case No. U-9609.

With regard to the appreciation of the aggravating circumstance of use of

an unlicensed firearm, we agree with the trial court and the appellate court that
the same must be applied against petitioner in the instant case since the same
was alleged in the informations filed against him before the RTC and proven
during the trial. However, such must be considered as a special aggravating
circumstance, and not a generic aggravating circumstance.

Generic aggravating circumstances are those that generally apply to all

crimes such as those mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6, 9,
10, 14, 18, 19 and 20, of the Revised Penal Code. It has the effect of increasing
the penalty for the crime to its maximum period, but it cannot increase the
same to the next higher degree. It must always be alleged and charged in the
information, and must be proven during the trial in order to be appreciated. 60
Moreover, it can be offset by an ordinary mitigating circumstance.

On the other hand, special aggravating circumstances are those which

arise under special conditions to increase the penalty for the offense to its
maximum period, but the same cannot increase the penalty to the next higher
degree. Examples are quasi-recidivism under Article 160 and complex crimes
under Article 48 of the Revised Penal Code. It does not change the character of
the offense charged. 61 It must always be alleged and charged in the
information, and must be proven during the trial in order to be appreciated. 62
Moreover, it cannot be offset by an ordinary mitigating circumstance.

It is clear from the foregoing that the meaning and effect of generic and
special aggravating circumstances are exactly the same except that in case of
generic aggravating, the same CAN be offset by an ordinary mitigating
circumstance whereas in the case of special aggravating circumstance, it
CANNOT be offset by an ordinary mitigating circumstance.

Aside from the aggravating circumstances abovementioned, there is also

an aggravating circumstance provided for under Presidential Decree No. 1866,
63 as amended by Republic Act No. 8294, 64 which is a special law. Its pertinent

provision states:
If homicide or murder is committed with the use of an unlicensed
firearm, such use of an unlicensed firearm shall be considered as an
aggravating circumstance.

In interpreting the same provision, the trial court reasoned that such
provision is "silent as to whether it is generic or qualifying." 65 Thus, it ruled
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 that "when the law is silent, the same must be interpreted in favor of the
accused." 66 Since a generic aggravating circumstance is more favorable to
petitioner compared to a qualifying aggravating circumstance, as the latter
changes the nature of the crime and increase the penalty thereof by degrees,
the trial court proceeded to declare that the use of an unlicensed firearm by the
petitioner is to be considered only as a generic aggravating circumstance. 67
This interpretation is erroneous since we already held in several cases that with
the passage of Republic Act No. 8294 on 6 June 1997, the use of an unlicensed
firearm in murder or homicide is now considered as a SPECIAL aggravating
circumstance and not a generic aggravating circumstance. 68 Republic Act No.
8294 applies to the instant case since it took effect before the commission of
the crimes in 21 April 1998. Therefore, the use of an unlicensed firearm by the
petitioner in the instant case should be designated and appreciated as a
SPECIAL aggravating circumstance and not merely a generic aggravating
circumstance.
As was previously established, a special aggravating circumstance cannot
be offset by an ordinary mitigating circumstance. Voluntary surrender of
petitioner in this case is merely an ordinary mitigating circumstance. Thus, it
cannot offset the special aggravating circumstance of use of unlicensed
firearm. In accordance with Article 64, paragraph 3 of the Revised Penal Code,
the penalty imposable on petitioner should be in its maximum period. 69
As regards the civil liability of petitioner, we deem it necessary to modify
the award of damages given by both courts.

In Criminal Case No. U-9610 for Homicide, we agree with both courts that
the proper amount of civil indemnity is P50,000.00, and that the proper amount
for moral damages is P50,000.00 pursuant to prevailing jurisprudence. 70
However, based on the receipts for hospital, medicine, funeral and burial
expenses on record, and upon computation of the same, the proper amount of
actual damages should be P42,374.18, instead of P43,556.00. Actual damages
for loss of earning capacity cannot be awarded in this case since there was no
documentary evidence to substantiate the same. 71 Although there may be
exceptions to this rule, 72 none is availing in the present case. Nevertheless,
since loss was actually established in this case, temperate damages in the
amount of P25,000.00 may be awarded to the heirs of Melton Ferrer. Under
Article 2224 of the New Civil Code, temperate or moderate damages may be
recovered when the court finds that some pecuniary loss was suffered but its
amount cannot be proved with certainty. Moreover, exemplary damages should
be awarded in this case since the presence of special aggravating circumstance
of use of unlicensed firearm was already established. 73 Based on prevailing
jurisprudence, the award of exemplary damages for homicide is P25,000.00. 74

In Criminal Cases No. U-9608 and U-9609, we agree with both courts as to
the award of actual damages and its corresponding amount since the same is
supported by documentary proof therein. The award of moral damages is also
consistent with prevailing jurisprudence. However, exemplary damages should
be awarded in this case since the presence of special aggravating circumstance
of use of unlicensed firearm was already established. Based on prevailing
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 jurisprudence, the award of exemplary damages for both the attempted and
frustrated homicide shall be P25,000.00 for each.

WHEREFORE, premises considered, the decision of the Court of Appeals

dated 30 September 2004 is hereby AFFIRMED with the following
MODIFICATIONS:
(1) In Criminal Case No. U-9609, the petitioner is found guilty of the
crime of attempted homicide. The penalty imposable on the petitioner is prision
correccional under Article 51 of the Revised Penal Code. 75 There being a
special aggravating circumstance of the use of an unlicensed firearm and
applying the Indeterminate Sentence of Law, the penalty now becomes four (4)
years and two (2) months of arresto mayor as minimum period to six (6) years
o f prision correccional as maximum period. As regards the civil liability of
petitioner, the latter is hereby ordered to pay Michael Ferrer exemplary
damages in the amount of P25,000.00 in addition to the actual damages and
moral damages awarded by the Court of Appeals.
(2) In Criminal Case No. U-9608, the penalty imposable on the
petitioner for the frustrated homicide is prision mayor under Article 50 of the
Revised Penal Code. 76 There being a special aggravating circumstance of the
use of an unlicensed firearm and applying the Indeterminate Sentence Law, the
penalty now becomes six (6) years of prision correccional as minimum period to
twelve (12) years of prision mayor as maximum period. As regards the civil
liability of petitioner, the latter is hereby ordered to pay Servillano Ferrer
exemplary damages in the amount of P25,000.00 in addition to the actual
damages and moral damages awarded by the Court of Appeals.

(3) In Criminal Case No. U-9610, the penalty imposable on petitioner

for the homicide is reclusion temporal under Article 249 of the Revised Penal
Code. 77 There being a special aggravating circumstance of the use of an
unlicensed firearm and applying the Indeterminate Sentence Law, the penalty
now is twelve (12) years of prision mayor as minimum period to twenty (20)
years of reclusion temporal as maximum period. As regards the civil liability of
petitioner, the latter is hereby ordered to pay Melton Ferrer exemplary
damages in the amount of P25,000.00 in addition to the actual damages and
moral damages awarded by the Court of Appeals. The actual damages likewise
awarded by the Court of Appeals is hereby reduced to P42,374.18.
SO ORDERED.

Panganiban, C.J., Ynares-Santiago, Austria-Martinez and Callejo, Sr., JJ.,

concur.

Footnotes

1. Also referred to as Rojeric Palaganas y Zarate in the Informations, and

Decisions of the trial court and the Court of Appeals.

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