People of the Philppines vs

Efren Mendoza
Qualifying Circumstances cannot
offset Ordinary Mitigating
Circumstances

ISSUE: Whether or not the trial

court erred in ruling that the
mitigating
circumstance
of
voluntary surrendered was offset
by the aggravating circumstance of
treachery.

On July 14, 1993 about 7:30 pm in

the
Municipality
of
Vinzons,
Camarines Norte, Mendoza hacked
Anchito Nano with a bolo which led
to the instant death of the accused.
The trial court found the accused
acted with evident premeditation
hence convicted him of the crime
murder which is punishable by
reclusion perpetua. Prior to trial he
voluntarily surrendered but it was
not appreciated as a mitigating
circumstance.

HELD: Treachery is a qualifying

circumstance in the present case
therefore it cannot offset the
mitigating
circumstance
of
voluntary surrender. Therefore,
pursuant to the Indeterminate
Sentence Law, the accused should
be sentenced to prision mayor in
its maximum period to reclusion
temporal in its minimum period.

THIRD DIVISION

Camarines Norte with murder for

the killing of Anchito A. Nano. He
entered a plea of not guilty. After
trial in due course, the court a
quo rendered a judgment finding
him guilty beyond reasonable
doubt and was sentenced to suffer
the penalty of reclusion perpetua.
The trial court rejected his plea of
self-defense, holding that his claim
was debunked by the prosecution
witnesses' testimonies, which were
more credible. In this appeal
before the Supreme Court, the
appellant admitted having hacked
to death the victim, but vigorously
insisted that he did so to defend
himself,
his
family
and
his
home. CSaHDT

[G.R. No. 133382. March 9, 2000.]

PEOPLE OF
THE
PHILIPPINES, plaintiff
-appellee, vs.
EFREN MENDOZA y
SALVADOR, accusedappellant.
The Solicitor General for plaintiffappellee.
Public
Attorney's
accused-appellant.

Office for

SYNOPSIS
Efren Mendoza was charged before
the Regional Trial Court of Daet,

The
Supreme
Court
affirmed
appellant's
conviction,
with
modification as to the penalty. He
was sentenced to an indeterminate
penalty of 10 years and 1 day
of prision mayor, minimum, to 17
years, 4 months and 1 day
of reclusion temporal, maximum.
The
Court
appreciated
the
mitigating
circumstance
of
voluntary surrender in his favor.
SYLLABUS
1. CRIMINAL LAW; JUSTIFYING
CIRCUMSTANCES; SELF-DEFENSE;
REQUISITES.

Because
the
accused raises self-defense and
defense of a relative, it is
incumbent upon him to prove the
presence
of
the
following
requisites: unlawful aggression on
the part of the victim, lack of
sufficient provocation on his part,
and reasonable necessity of the
means he used to repel the
aggression. It is settled that the
accused who invokes self-defense
or defense of a relative must
present
clear
and
convincing
evidence. Such person cannot rely
on
the
weakness
of
the
prosecution, for even if it is weak,
it cannot be disbelieved because
the former has admitted the killing.
2. REMEDIAL
LAW;
EVIDENCE;
CREDIBILITY
OF
WITNESSES;
FINDINGS OF THE TRIAL COURT
ARE ACCORDED GREAT RESPECT.

The well-settled rule is that the

trial court's findings on the
credibility of witnesses and their
testimonies are accorded great
weight and respect, in the absence
of any clear showing that some
facts or circumstances of weight or
substance
which
could
have
affected the result of the case have
been overlooked, misunderstood or
misapplied. Appellant failed to
present any reason why this Court
should reverse or modify the
court a quo's ruling.
3. CRIMINAL LAW; AGGRAVATING
CIRCUMSTANCES;
TREACHERY;
DEFINED AND CONSTRUED. The
essence of treachery is the sudden
and unexpected attack, without the
slightest provocation on the part of
the person attacked. Treachery
exists when the offender commits
any of the crimes against persons,
employing means, methods or
forms in the execution thereof
which tend directly and especially
to insure its execution, without risk
arising from the defense which the
offended party might make.
4. ID.;
MITIGATING
CIRCUMSTANCES;
VOLUNTARY
SURRENDER; REQUISITES. To
establish
the
mitigating
circumstance
of
voluntary
surrender, the following three
requisites must be shown: (a) the
offender has not been actually
arrested;
(b)
the
offender

surrenders himself to a person in

authority or the latter's agent; and
(c) the surrender is voluntary. The
defense must show intent to
surrender unconditionally to the
authorities, either because of an
acknowledgment
of
guilt or because of a wish to spare
them the trouble and the expense
concomitant to the search and the
capture of the accused.
5. ID.;
QUALIFYING
CIRCUMSTANCE; DISTINGUISHED
FROM A GENERIC AGGRAVATING
CIRCUMSTANCE. The court a
quo failed
to
appreciate
the
distinction between a generic
aggravating circumstance and a
qualifying
one.
A
qualifying
circumstance changes the nature
of the crime. A generic aggravating
circumstance, on the other hand,
does not affect the designation of
the crime; it merely provides for
the imposition of the prescribed
penalty in its maximum period.
Thus, while a generic aggravating
circumstance may be offset by a
mitigating
circumstance,
a
qualifying circumstance may not.
Treachery in the present case is a
qualifying,
not
a
generic
aggravating
circumstance.
Its
presence served to characterized
the killing as murder; it cannot at
the same time be considered as a
generic aggravating circumstance
to warrant the imposition of the

maximum penalty. Thus, it cannot

offset voluntary surrender.
6. CRIMINAL
LAW;
MURDER;
PROPER PENALTY; CASE AT BAR.
When the crime was committed on
July 14, 1993, the penalty for
murder was reclusion temporal, in
its maximum period, to death. At
the time, however, RA 7659 which
reimposed the death penalty was
not yet in effect. In any event, the
presence
of
the
mitigating
circumstance
of
voluntary
surrender impels the imposition of
the minimum period of the
applicable
penalty, reclusion
temporal (maximum). Applying the
Indeterminate
Sentence
Law,
appellant should be sentenced
to prision mayor in its maximum
period to reclusion temporal also in
its maximum period.
7. ID.; ID.; CIVIL INDEMNITY;
INCREASED
INDEMNITY
AVAILABLE
ONLY
TO
RAPE
VICTIMS.

Citing People vs.

Victor, G.R. No. 127903, pp. 1516, July 9, 1998, per curiam, the
solicitor general argues that the
civil indemnity should be raised
from P50,000 to P75,000. This is
erroneous. In the said case, the
Court held that "starting with the
case at bar, if the crime of rape is
committed or effectively qualified
by any of the circumstances under
which
the
death
penalty
is
authorized by the present amended

law, the indemnity for the victim

shall be in the increased amount of
not
less
than
P75,000.00."
Obviously,
that
ruling,
which
involved rape and imposed the
death penalty, cannot apply to the
present case. Hence, consistent
with current jurisprudence, the
Court affirms the award of P50,000
as indemnity ex delicto.
DECISION
PANGANIBAN, J p:
True, a father and husband has the
duty and the right to defend
himself, his family and his home.
However, in order to successfully
invoke self-defense and defense of
relative, he must prove, by clear
and convincing evidence, the
concurrence of three elements, the
most
important
of
which
is unlawful aggression on the part
of the victim. Absent unlawful
aggression,
these
defenses
collapse and the accused must be
convicted. cdphil
The Case
Efren Mendoza y Salvador
was
charged with murder for the July
14, 1993 killing of Anchito A. Nano.
Before the Regional Trial Court of
Daet,
Camarines
Norte,
an
Information 1 was filed against him
on September 9, 1993, alleging as
follows:

"That on or about 7:30

o'
clock
[o]n
the
evening of July 14,
1993,
at
Brgy.
Manlucugan,
[M]unicipality
of
Vinzons, [P]rovince of
Camarines Norte, and
within the jurisdiction of
this Honorable Court,
the
above-named
accused did then and
there
willfully,
unlawfully
and
feloniously
with
deliberate intent to kill,
with
treachery
and
evident premeditation,
assault,
attack
and
hack with a bolo one
ANCHITO
A.
NANO,
thereby inflicting upon
the
latter
multiple
hacking wounds, which
were
the
proximate
cause
of
his
instantaneous death, to
the
damage
and
prejudice of the heirs of
the victim.
"CONTRARY TO LAW." 2
During his arraignment on October
22, 1993, appellant, with the
assistance of Atty. Leo Intia,
entered a plea of not guilty. 3 On
November 6, 1997, after trial in
due
course,
the
courta
quo rendered its assailed nine-

page Decision, 4 the

portion of which reads:

dispositive

"WHEREFORE, premises
considered, this court
hereby
finds
the
accused,
Efren Mendoza GUILTY
beyond
reasonable
doubt of the crime of
MURDER defined and
penalized under Article
248 of the Revised
Penal
Code.
The
mitigating circumstance
of voluntary surrender
will
not affect the
penalty imposed since it
is
offset
by
the
aggravating
circumstance
of
treachery.
Wherefore,
he is hereby ordered to
suffer the penalty of
RECLUSION PERPETUA,
and to pay the heirs of
the
deceased
the
following:
a) P50,000.00 as death
indemnity; and
b) P30,000.00 as moral
damages.
"The bond posted for
the provisional liberty
of said accused is
hereby CANCELLED.

"SO ORDERED." 5
Hence, this appeal. 6
The Facts
The Version of the Prosecution
In the People's Brief, 7 the Office
of the Solicitor General presented
the following statement of facts:
"At around 7:00 p.m. of
July
14,
1993,
in
Barangay Manlucugan,
Vinzons,
Camarines
Norte, Anchito Nano
and Marianito Rafael
passed by appellant's
house and asked for a
drink from appellant's
wife,
Emily Mendoza.
Anchito began talking
with Emily and they
were about four armslength from Marianito
when
appellant
suddenly
appeared.
Appellant
hacked
Anchito on the nape,
which
prompted
Marianito to flee out of
fear for his life. (TSN,
March 9, 1993, pp. 1014).
"Brgy. Kagawad Pedro
Saman, together with
Ernesto
Cribe
and
Trinidad delos Santos,

arrived later at the

scene of the crime.
Kagawad
Saman
discovered Anchito in a
kneeling
position
already dead. He also
found (3) three hack
wounds on the nape
and
two
(2)
hack
wounds at the back of
Anchito's body (TSN,
March 10, 1997, pp. 7
and 18).
"At around 9:00 p.m. of
that day, Trinidad delos
Santos reported the
hacking incident to the
sub-station of Aguit-it,
Vinzons. SPO2 Silverio
Rafael proceeded to the
crime scene and saw
Anchito's body still in a
kneeling position with
hack wounds at the
back of the neck and
body (TSN, May 31,
1994, p. 5).
"SPO4
Rafael
asked
the people present who
was the perpetrator of
the
crime.
The Barangay officials
led by Kgwd. Saman
and
Kgwd.
Cribe
informed Rafael that
the perpetrator was
appellant
Efren Mendoza.
SPO4

Rafael later observed

that
the
appellant's
house was in total
disarray
and
he
surmised that things
might have been taken
in a hurry. He also
noted that there was no
weapon anywhere near
the victim's body (Ibid.,
pp. 12-14 and 17).
"Later
that
night,
appellant surrendered
to Senior Police Officer
Leonardo
Almadrones
who promptly turned
him
over
to
Chief
Investigator Joel Guinto
for
the
requisite
investigation.
During
investigation, appellant
claimed that Anchito
ransacked his house
and hacked his seven
(7)
year
old
son
Ernie Mendoza (TSN,
July
1,
1994,
p.
5). cdtai

"Two
days
later,
appellant's wife and son
went to the Vinzon's
police station to blotter
Ernie Mendoza's wound.
Investigator
Guinto
interviewed
Ernie Mendoza and

concluded that Ernie's

wound was made by
somebody other than
the victim since the
said wound was not
deep
enough.
Also,
when he questioned the
child about the wound,
the latter answered that
when he woke up, he
already had a wound.
Investigator
Guinto
later filed the present
charge
against
appellant
after
the
victim's
common-law
wife brought several
witnesses who each
executed
their
corresponding
sworn
affidavits." (Ibid., pp. 7
& 11)." 8
The Version of the Defense
The
defense
presented
six
witnesses:
Appellant
Efren Mendoza, his wife Emily and
his son Ernie; Bayani Aguilar; Dr.
Gaudencio Albano and Carmen
Herico. In his Brief, 9 appellant
summarized the defense witnesses'
testimonies as follows:
"EMILY MENDOZA, wife
of appellant, testified
that at around 7:00 o'
clock in the evening,
the victim Anchito Nano
and
his
companion

Marianito Rafael arrived

at their house and upon
arrival, Anchito Nano
destroyed the two (2)
windows of their house.
She
saw
afterwards
that
her
son,
Ernie Mendoza,
was
hacked by Anchito Nano
while the former was
peeping
thru
the
destroyed window. She
shouted for help and
appellant, her husband,
responded to her call
and saw Anchito Nano
who was about to
attack her husband, but
was hacked first by the
latter. Marianito Rafael
who was just watching
subsequently fled from
the
place
of
the
incident. She brought
her son first to the faith
healer for immediate
treatment
and
the
following morning to
the Provincial Hospital
for medical treatment.
She learned later that
her husband went to
Vinzons Municipal Hall
and
surrendered
voluntarily to the police
authority on the same
day of July 14, 1993.
(TSN,
December
8,
1994, pp. 3-11).

"EFREN MENDOZA,
accused-appellant,
testified that on July
14, 1993, at around
7:30 in [the] evening,
he was at the comfort
room 20 about meters
away from their house
when he heard his wife
shouting for help. He
ran
immediately
towards the direction of
their house and saw
Anchito
Nano
destroying the lock of
their window[;] hence
he looked for a piece of
wood but found a bolo
instead. He later heard
his son shout, "Ama,
tinaga
ako."
He
approached
Anchito
Nano to prevent him
from
entering
their
house but the latter
tried to hack him. He
was able to deliver a
hacking blow ahead of
the victim on the right
side
of
the
neck.
Thereafter,
he
immediately went to
the Municipal Hall of
Vinzons
and
surrendered voluntarily
to the police authority
(TSN, March 27, 1995,
pp. 3-8).

"ERNIE MENDOZA,
appellant's
son,
testified that on July
14, 1993, at around
7:30 in the evening, he
noticed that somebody
was
hacking
their
house,
hence,
he
peeped through
the
window
and
saw
Anchito
Nano
who
hacked him on the
head, thereby resulting
[in]
los[s]
of
consciousness while his
mother
[kept]
on
shouting for help. He
was brought first to a
quack
doctor
for
immediate
treatment
and
the
following
morning,
to
the
provincial
hospital
where he was treated
by Dr. Albano for the
head
injury
he
sustained.
"BAYANI
AGUILAR,
police chief of Vinzons
PNP testified that he
issued a certification on
August 3, 1993 about
the voluntary surrender
of
appellant
Efren Mendoza and
another
certification
regarding one in the
report
made
by

Emily Mendoza relative

to the hacking of his
son by Anchito Nano
which happened on July
14, 1993 at about 7:30
in the evening at their
house (TSN, November
7, 1995, pp. 2-4).
"DR.
GAUDENCIO
ALBANO, the attending
doctor
who
treated
appellant's son testified
that
he
treated
Ernie Mendoza who
suffered
a
wound
laceration four (4) cm.
long at the middle of
the head which could
have been caused by a
blunt object. (TSN, July
31, 1996, pp. 4-6).
"CARMEN
HERICO
testified that on July
14, 1993, at around
7:30 in the evening,
she heard her daughter,
Emily Mendoza shouting
for help, hence she ran
towards her daughter's
house and they met
halfway along the road.
They proceeded back to
her daughter's house
and she saw the fallen
window. She and her
daughter, subsequently
proceeded to the house
of Pedro Saman, a

barangay kagawad and

informed
the
latter
about
the
incident.
(TSN,
October
22,
1996, pp. 3, 5-6)." 10
Trial Court's Ruling
The
court a
quo rejected
appellant's plea of self-defense,
ratiocinating as follows:
"To bolster his claim of
self-defense,
accused
Efren Mendoza declared
: when he heard the
shouts for help of his
wife, immediately he
ran towards their house
and saw the victim
destroying their house.
There, he heard his son
[shout], "Ama, tinaga
ako." He immediately
approached the victim
in order to prevent him
from
entering
the
house. He delivered the
first blow by hacking
the victim, hitting the
victim at the right side
of the neck, alleging
that the victim, when
they were facing each
other,
hacked
the
accused first.
"Indeed, a man's house
is his castle. He has the
right to protect it. He

may repel force by

force in defense of
person, habitation or
property
against
anyone who manifestly
intends or endeavors by
violence or surprise to
commit a felony. But
these
circumstances
surrounding
the
incident negates the
allegations
of
the
accused's self-defense.
First,
there
is
an
eyewitness on the part
of the prosecution, that
the accused suddenly
attacked and hacked
the victim outside the
house (tsn., March 9,
1994,
pp.
12-13).
Secondly, the physical
evidence of the number,
location and severity of
the [hack] and incised
wounds found on the
body of the victim
affirmed by the medical
findings contained in
the autopsy report that
all the hack wounds
[came] from the back
of the victim's body
(tsn., Feb. 4, 1994, p.
7), and the pictures
presented
in
court
(Exhibits "C" to "C-4")
all indicate that the
victim was hacked from

behind.
Clearly,
accused's act was no
longer one of selfpreservation,
but
a
determined effort to kill
his victim." 11
Holding that appellant's claim was
debunked by the prosecution
witnesses' testimonies which were
more credible, the trial court
explained:
"Kagawad Pedro Saman
was among the first
persons who saw the
vicinity of the incident.
He noticed that the
victim was not carrying
any weapon or knife or
a piece of wood and the
house was in good
condition (tsn, March
10, 1994, p. 14). It was
corroborated by SPO4
Silverio
Rafael
that
there was indeed no
weapon
within
the
vicinity
where
the
corpse of the victim
was found (tsn, May 31,
1994,
p.
17)
The
allegations
of
the
accused that the victim
was the aggressor who
hacked him first is
contrary
to
human
nature. There was no
altercation, warning or
even a challenge that

[would]
enable
the
victim to be aggressor.
The aggression must be
real,
or
at
least,
imminent
and
not
merely imaginary. The
aggressor's intent must
be ostensibly revealed
by his hostile attitude
and other external acts
constituting
a
real,
material,
unlawful
aggression. A threat,
even if made with a
weapon or the belief
that a person was
about to be attacked, is
not sufficient. It is
necessary
that
the
intent
be
ostensibly
revealed by an act of
aggression or by some
external acts showing
the commencement of
actual,
material,
unlawful
aggression.
This court finds that
[since] the accused was
not in imminent danger
of death or great bodily
harm, an attempt to
defend
himself
by
means which appeared
unreasonable by using
a
long
bolo
is
unjustifiable.
Hence,
the self-defense foisted
by the accused is not
well-founded, but an

alibi to exonerate him

from the offense he
committed." 12
The Alleged Errors
In his Brief, appellant assails (1)
the trial court's rejection of his plea
of defense of relative and (2) its
characterization
of
the
crime
committed. Thus, he submits: prLL
"I
THE
TRIAL
COURT
ERRED
IN
NOT
UPHOLDING
THE
THEORY OF DEFENSE
OF
RELATIVE
ESPOUSED
BY
THE
ACCUSED-APPELLANT
DESPITE
CORROBORATIVE
EVIDENCE SUPPORTING
THE SAME.
II
THE
TRIAL
COURT
ERRED IN CONVICTING
ACCUSED-APPELLANT
OF THE CRIME OF
MURDER DESPITE THE
ABSENCE
OF
QUALIFYING
CIRCUMSTANCES
OF
TREACHERY
AND
EVIDENT
PREMEDITATION
AS

ALLEGED
IN
THE
INFORMATION." 13
The Court's Ruling
The appeal is partly meritorious.
The mitigating circumstance of
voluntary surrender should be
appreciated in appellant's favor.
First Issue:
Self-Defense and Defense of a
Relative
The appellant admits to having
hacked
Anchito
Nano,
but
vigorously insists that he did so to
defend himself, his family and his
home.
Mendoza recounts that on that
fateful night, he was relieving
himself in their comfort room
situated about twenty meters
outside their house, when he heard
his wife's frantic pleas for help. He
immediately rushed to their house
and saw Nano destroying their
windows. The former looked for
something with which to arm
himself and found a bolo. He
recalls that at this point, he heard
his son shout, "Ama, tinaga ako!"
Thereafter, he approached Nano to
prevent him from entering the
house. The latter allegedly faced
him and was about to strike him
with a bolo, but the former was
able to parry the blow, quickly

retaliate and
neck. 14

hit

him

on

the

Requisites of Self-Defense
and Defense of Relative
Because the accused raises selfdefense and defense of a relative,
it is incumbent upon him to prove
the presence of the following
requisites: unlawful aggression on
the part of the victim, lack of
sufficient provocation on his part,
and reasonable necessity of the
means he used to repel the
aggression. 15 It is settled that the
accused who invokes self-defense
or defense of a relative must
present
clear
and
convincing
evidence. Such person cannot rely
on
the
weakness
of
the
prosecution, for even if it is weak,
it cannot be disbelieved because
the former has admitted the
killing. 16
Unlawful Aggression
Not Proven
We find that the appellant was not
able to prove the all-important first
requisite unlawful aggression on
the
part
of
Anchito
Nano. Mendoza contends that it
was the latter who started the
aggression by acting in a manner
that
was
threatening
and
dangerous to the former and his
family, wreaking havoc on his
house and, in the process, injuring

his seven-year-old son. Appellant

likewise avers that Nano was about
to strike him when the former,
acting instinctively, delivered the
fatal blows to the latter.

Emily
and
Ernie Mendoza,
appellant's
wife
and
son,
corroborated this assertion. They
testified that the deceased had
started the fracas and caused the
wound on Ernie's head. To further
prove this claim, the defense
presented Dr. Gaudencio Albano,
Ernie's attending physician, who
testified that the boy had suffered
a laceration, four centimeters long
at the middle of the head, which
could have been caused by a blunt
object. 17
Despite
this
corroboration,
however, several circumstances
belie appellant's claim of selfdefense
and
defense
of
a
relative. First, investigators found
the deceased in a kneeling position
with five wounds three on the
nape, and two at the back. Thus,
the nature and the location of such
wounds debunked appellant's claim
that Nano was about to attack him.
Second, the bolo which Nano had
allegedly used in his attack was not
found within the vicinity of the
crime scene and was not presented
in court. This point was established

by
SPO4
Silverio
testimony 18 and
photographs 19 depicting
actual crime scene.

Rafael's
the
the

Third,
granting
that
Ernie Mendoza was injured, the
appellant and his witnesses were
not able to prove adequately that
such injury was caused by Nano,
because there were inconsistencies
and
improbabilities
in
their
testimonies. Ernie claimed that he
had lost consciousness after being
struck
with
a
bolo
by
Nano. 20 However,
appellant
asserts that he heard his child cry,
"Ama, tinaga ako!" while the
former was about to subdue the
assailant.
Moreover,
appellant
admits that he did not see Nano hit
his son.
Likewise,
the
testimonies
of
Carmen Herico (Emily's mother)
and Pedro Saman regarding the
circumstances after the hacking
incident negated Emily's claim that
she had rushed her wounded son
to the faith healer. Herico went to
her daughter's house after hearing
the latter's cries for help, but the
former did not see anything except
a fallen window. 21Surely, she
would
have
noticed
if
her
grandchild was injured. Pedro
Saman,
the barangay
kagawad summoned by Herico,
also
testified
that
appellant's
children were in the house when he

arrived at the crime scene, 22 but

he did not mention anything about
an injured child.
In any event, the trial court
disbelieved the testimonies of the
defense witnesses. The well-settled
rule is that the trial court's findings
on the credibility of witnesses and
their testimonies are accorded
great weight and respect, in the
absence of any clear showing that
some facts or circumstances of
weight or substance which could
have affected the result of the case
have
been
overlooked,
misunderstood
or
misapplied. 23 Appellant failed to
present any reason why this Court
should reverse or modify the
court a quo's ruling.
In all, the totality of the evidence
presented by the appellant was not
sufficient to prove that it was Nano
who had started the fracas, and
that the former was just acting to
defend himself, his family and his
home.
Second Issue:
Crime and Punishment
We agree with the trial court that
the killing of Anchito Nano was
qualified by treachery, as alleged in
the Information. The essence of
treachery is the sudden and
unexpected attack, without the

slightest provocation on the part of

the person attacked. 24 Treachery
exists when the offender commits
any of the crimes against persons,
employing means, methods or
forms in the execution thereof
which tend directly and especially
to insure its execution, without risk
arising from the defense which the
offended party might make. 25
In the present case, the victim's
lack of awareness of the attack can
be gleaned from the nature, the
number and the location of his
wounds.
Furthermore,
the
testimony of Marianito Rafael,
against whom no ill motive was
imputed by the appellant, likewise
established this fact. The former
testified: Cdpr
"Q You mean to say
that
you
were
present when he
was hacked?
A Yes, sir.
Q In what place was he
hacked?
xxx xxx xxx
A Near the house of
Efren Mendoza.
Q Why
were
there? . . .

you

A Because I asked for

water
from
Emily Mendoza.
Q And Anchito Nano
was also there?

A I only saw once, I ran

away after seeing
the first hack." 26

xxx xxx xxx

A We were together.

Voluntary Surrender

xxx xxx xxx

Q You mean to say that
after you had a
drink,
Efren Mendoza ca
me?
A He

came
suddenly.

out

Q . . . [W]here did he
come from?
A He came from outside
of the house.
Q What did [he] do
upon arriving, if
any,
this
Efren Mendoza?
A He suddenly hacked.
Q Who?
A Anchito Nano.
xxx xxx xxx

Q How many times was

Anchito
Nano
hacked
by
Efren Mendoza, if
you know?

Appellant
argues
that
the
mitigating
circumstance
of
voluntary surrender should be
appreciated in his favor, because
he immediately went to the
Municipal Hall and surrendered to
the police on the night of the
incident.
We agree. To establish this
mitigating
circumstance,
the
following three requisites must be
shown: (a) the offender has not
been actually arrested; (2) the
offender surrenders himself to a
person in authority or the latter's
agent; and (c) the surrender is
voluntary. 27 The defense must
show
intent
to
surrender
unconditionally
to
the
authorities, eitherbecause of an
acknowledgment
of
guilt or because of a wish to spare
them the trouble and the expense
concomitant to the search and the
capture of the accused. 28

In this case, all these requisites

were proven. Appellant's assertion
that
he
surrendered
was
corroborated by Chief Inspector
Bayani Aguilar, Vinzons chief of
police, who issued a Certification
that "one Efren Mendoza . . .
voluntarily surrendered [to] this
station, including his bolo . . .
which was used to hack 3 times a
certain
Yoyoy
Nano . . . ." 29 Contrary to the
submission
of
the
solicitor
general, 30 the
surrender
of
appellant was unconditional. He
readily admitted that he had
hacked
the
victim
and
subsequently put himself under
police custody.
Furthermore, we hold that the trial
court erred in ruling that voluntary
surrender was "offset by the
aggravating
circumstance
of
treachery." 31 The
court a
quo failed
to
appreciate
the
distinction between a generic
aggravating circumstance and a
qualifying one.
A qualifying circumstance changes
the nature of the crime. A generic
aggravating circumstance, on the
other hand, does not affect the
designation of the crime; it merely
provides for the imposition of the
prescribed penalty in its maximum
period. Thus, while a generic
aggravating circumstance may be
offset
by
a
mitigating

circumstance,
a
qualifying
circumstance may not. 32
Treachery in the present case is a
qualifying,
not
a
generic
aggravating
circumstance.
Its
presence served to characterize the
killing as murder; it cannot at the
same time be considered as a
generic aggravating circumstance
to warrant the imposition of the
maximum penalty. Thus, it cannot
offset voluntary surrender.
The Proper Penalty
When the crime was committed on
July 14, 1993, the penalty for
murder was reclusion temporal, in
its
maximum
period,
to
death. 33 At the time, however, RA
7659 which reimposed the death
penalty was not yet in effect. In
any event, the presence of the
mitigating
circumstance
of
voluntary surrender impels the
imposition of the minimum period
of
the
applicable
penalty, 34 reclusion
temporal (maximum). Applying the
Indeterminate
Sentence
Law, 35 appellant
should
be
sentenced to prision mayor in its
maximum
period
toreclusion
temporal also in its maximum
period. cdrep
Civil Indemnity

Citing People v. Victor, 36 the

solicitor general argues that the
civil indemnity should be raised
from P50,000 to P75,000. This is
erroneous. In the said case, the
Court held that "starting with the
case at bar, if the crime of rape is
committed or effectively qualified
by any of the circumstances under
which
the
death
penalty
is
authorized by the present amended
law, the indemnity for the victim
shall be in the increased amount of
not
less
than
P75,000.00."
Obviously,
that
ruling,
which
involved rape and imposed the
death penalty, cannot apply to the
present case. Hence, consistent
with current jurisprudence, 37 we
affirm the award of P50,000 as
indemnity ex delicto.
Likewise, we affirm the award of
moral damages in the sum of
P30,000 for the anguish and the
wounded feelings suffered by the
victim's heirs, which were duly
proven.
WHEREFORE, the assailed Decision
of the Regional Trial Court is
AFFIRMED with the modification
that appellant is hereby sentenced
to an indeterminate penalty of 10
years
and
1
day
of prision
mayor (maximum) to 17 years, 4
months and 1 day of reclusion
temporal (maximum). All other
awards
are
AFFIRMED.
No
pronouncement as to costs.

SO ORDERED.
Melo,
Vitug,
Purisima and Gonzaga-Reyes,
JJ., concur.
Footnotes
1.The Information, dated September 6, 1993, was
signed by Provincial Prosecutor Pascualita
Duran-Cereno.
2.Rollo, p. 6; records, p. 1.
3.Records, pp. 10-11.
4.Penned by Judge Sancho Dames II.
5.Rollo, p. 28.
6.The case was deemed submitted for decision upon
receipt by this Court of the Appellee's Brief
on May 31, 1999. The filing of a reply brief
was deemed waived, as none was submitted
within the reglementary period.
7.Signed by Assistant Solicitor General Carlos N.
Ortega,

Assistant

Solicitor

General

Magdangal M. de Leon and Solicitor Ronaldo

B. Martin.
8.Appellee's Brief, pp. 3-5.
9.Appellant's Brief was signed by Attys. Arceli A.
Rubin,

Bartolome

P. Reus

and Rogel

Quijano of the Public Attorney's Office.

10.Appellant's Brief, pp. 4-6; rollo, pp. 47-49.
11.RTC Decision, pp. 7-8; rollo, pp. 26-27.
12.Ibid., p. 8; rollo, p. 27.

F.

13.Appellant's Brief, p. 1; rollo, p. 44.

16.People v. Cawaling, 293

SCRA

267,

July 28,

1998; People v. Cayabyab, 274 SCRA 387,

14.TSN, March 27, 1995, pp. 4-8.

June 19, 1997; People v. Camahalan, 241

15.Art. 11 (1 and 2), Revised Penal Code, which

reads:

SCRA

558,

1995; People v. Peones,

August

"Art. 11. Justifying circumstances.

The following do not incur any criminal
liability.

February

16,

200

22,

SCRA

625,

1991; People v. Bausing,

199

SCRA 355, July 18, 1991.

17.TSN, July 31, 1996, pp. 4-6.
18.TSN,

May 31,

1994,

p. 17. Silverio Rafael

testified:
1. Anyone who acts in defense of
his person or rights provided that the
following circumstances concur:

"Q What

A There was none. There was no

sign of commotion or trouble whatsoever.

the means employed to prevent or repel it;

Third. Lack of sufficient provocation
part

of

the

person

defending

Q Did you also find any weapon

within the vicinity where the corpse of the
victim was found?

himself.

A There was none."

2. Anyone who acts in defense of

the

person

or

rights

of

ascendants, descendants,

his

spouse,

or legitimate,

natural or adopted brothers or sisters, or of

his

observe

body of the victim?

Second. Reasonable necessity of

the

you

immediately within the surrounding of the

First. Unlawful aggression;

on

did

relatives

by

affinity

in

the

same

19.Exhibits "C", "C-1", "C-2", "C-3" and "C-4."

Records, pp. 88-A, B, C, D and E.
20.TSN,

June

28,

1995,

p.

Edwin Mendoza declared:

degrees, and those by consanguinity within

the fourth civil degree, provided that the
first and second requisites prescribed in
the

next

preceding

circumstance

you were hacked by Anchito Nano?

are

present and the further requisite, in case

the provocation was given by the person
attacked, that the one making the defense
had no part therein."

"Q And what happened to you after

A I lost consciousness, sir."

21.TSN, October 22, 1996, p. 6.
22.TSN, March 10, 1994, p. 19.

5.

23.People v. Ferrer,

255

SCRA

19,

March

14,

34.Article 64 (2), Revised Penal Code.

1996; People v. Lua, 256 SCRA 539, April

35.Section 2 of the Indeterminate Sentence Law

26, 1996.

provides that it does not apply "to persons

24.People v. Rebamontan, 305 SCRA 609, April 13,

convicted of offenses punished with death

1999; People v. Cawaling, 293 SCRA 267,

penalty

or

life

imprisonment;

."

July 28, 1998; People v. Sol, 272 SCRA 392,

(emphasis supplied) Because the law used

May 7, 1997.

the word "punished" instead of "punishable,"

what should be considered is the penalty

25.Article 14, par. 16, Revised Penal Code.

actually imposed, not the imposable penalty.

(Reyes,

26.TSN, March 9, 1994, pp. 9-13.

supra,

p.

778;

see

also People v. Moises, 66 SCRA 151, August

27.People v. Deopante, 263 SCRA 691, October 30,

13, 1975.) Accordingly, the law should be

applied in this case, because the maximum

1996.

penalty
28.People v. Ramos, 296 SCRA 559, September 25,

actually

imposed

is reclusion

temporal in its maximum period.

1998; People v. Umadhay, 293 SCRA 545,

36.G.R. No. 127906, pp. 15-16, July 9, 1998, per

August 3, 1998.

curiam.
29.Records, p. 190.
37.People v. Quitlong, GR No. 121562, July 10,
1998; People v. Lagarteja, GR No. 127095,

30.Brief for the Appellee, p. 10.

June 22, 1998; People v. Marollano, GR No.

31.Decision, p. 9; rollo, p. 28.

105004,

July

24,

1997;

and People v.

Caballes, GR No. 102723-24, June 19, 1997.

32.Reyes, The Revised Penal Code, Book One, 12th
ed., pp. 316-317.
33.Under RA 7659, which took effect on December
31,

1993,

the

penalty

for

now reclusion perpetua to death.

murder

is

||| (People v. Mendoza, G.R. No. 133382, [March 9,

2000], 384 PHIL 436-454)