FIRST DIVISION

[G.R. No. 155258. October 7, 2003.]

CONRADO CANO y SAMPANG , petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

Oscar R. Ferret for petitioner.

The Solicitor General for respondent.

SYNOPSIS

Petitioner Conrado Cano y Sampang and his deceased brother Orlando were rivals in
the Rush ID Photo business and both had booths along the sidewalk of Rizal Avenue,
Sta. Cruz, Manila. Orlando was able to get a permit for his booth, but Conrado's
application for a permit was denied. Without the knowledge of Orlando, petitioner
Conrado borrowed the permit of the former and xeroxed it for presentation to the
City Hall to ask for reconsideration. This irked the victim Orlando who confronted
Conrado with a balisong. The latter locked himself in his dark room where he was
pursued by the victim trying to force open the door by kicking it and stabbing the
door with the balisong knife. When the door was suddenly opened, petitioner
Conrado got hold of a pair of scissors to protect himself. During the scue, the
scissors fell from petitioner's hand. He then grabbed the knife of the victim who in
turn picked up the scissors and they again attacked each other. The victim fell, and
petitioner stooped down to pick his brother up and to take him to the hospital, but
the victim's wife hit him on his head with a chair and shouted "robber" to which
many armed men responded. Petitioner ed for fear of being lynched, then
surrendered to the police. The victim Orlando was taken to the hospital where he
was pronounced dead on arrival. The autopsy report showed that the victim suffered
at least thirty stab wounds, six of which were fatal, while petitioner suered only
one incised wound on the right hand. The Medico Legal Ocer admitted, however,
that the numerous stab wounds were scratches and contusions, while only six were
penetrating stab wounds. Petitioner was charged with Homicide where he pleaded
not guilty.

The issue in this case is whether or not petitioner can avail of the justifying
circumstance of self defense.

The trial court found the petitioner guilty beyond reasonable doubt of the crime
charged and sentenced him to serve an indeterminate term of imprisonment.

On appeal in the CA, the victim's widow executed a Sinumpang Salaysay stating,
among others, that petitioner merely acted in self-defense and that she was
withdrawing the charge against him, which statement became a basis for for an
Urgent Motion for New Trial on the ground of newly discovered evidence led by
counsel for petitioner. The CA denied the said motion and armed petitioner's
conviction with modification.

On review, the Supreme Court acquitted the petitioner, ruling that the petitioner
acted in self-defense. His act of killing the victim was attended by a justifying
circumstance, for which no criminal or civil liability can attach.

SYLLABUS

1. REMEDIAL LAW; APPEAL; RULES OF PROCEDURE; LIBERALLY CONSTRUED TO

PERMIT DETERMINATION OF FACTUAL ISSUES IN PETITION FOR REVIEW ON
CERTIORARI. Where the Solicitor General argues that the petition raises merely
factual issues, such as whether or not petitioner is entitled to the justifying
circumstance of self defense and the mitigating circumstance of provocation or
threat and voluntary surrender, the Court ruled that concededly, those who seek to
avail of the remedies provided by the rules must adhere to the requirements
thereof, failure of which the right to do so is lost. It is, however, equally settled that
rules of procedure are not to be applied in a very rigid, technical sense and are used
only to help secure substantial justice. If a technical and rigid enforcement of the
rules is made, their aim would be defeated. They should be liberally construed so
that litigants can have ample opportunity to prove their claims and thus prevent a
denial of justice due to technicalities.

2. ID; ID; ID; ID; ISSUE OF WHETHER OR NOT PETITIONER IS ENTITLED TO

INVOKE THE. JUSTIFYING CIRCUMSTANCE OF SELF DEFENSE, DETERMINED IN
CASE AT BAR. The Court proceeded to resolve the issue of whether or not
petitioner is entitled to invoke the justifying circumstance of self-defense
considering that what is at stake is not merely his liberty, but also the distinct
possibility that he will bear the stigma of a convicted felon and be consigned to the
fate of being a social pariah for the rest of his life.

3. ID;, EVIDENCE; CREDIBILITY OF WITNESSES; FINALITY OF THE FINDINGS OF

THE TRIAL COURT; EXCEPTIONS. The task of the Supreme Court is to determine
which of the diametrically opposed factual versions of the prosecution and the
defense as to what transpired immediately preceding the killing is the truth. In
resolving such conict, dealing as it does with the credibility of witnesses, the usual
rule is for the Court to respect the ndings of the trial court considering that it was
in a better position to decide the question, having heard the witnesses themselves
and having observed their deportment and manner of testifying during trial.
Nonetheless, this rule is circumscribed by well established exceptions. In the case at
bar, the record shows circumstances of weight and inuence which have been
overlooked, or the signicance of which has been misinterpreted, that if considered
would affect the result of the case.

4. CRIMINAL LAW; REVISED PENAL CODE; JUSTIFYING CIRCUMSTANCES; SELF-

DEFENSE; ELEMENTS THAT SHOULD BE PRESENT IN ORDER FOR SELF-DEFENSE
TO PROSPER. For self-defense to prosper, petitioner must prove by clear and
convincing evidence the following elements: (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 sucient provocation on the part of the person defending himself.
Although the three elements must concur, self-defense must rest rstly on proof of
unlawful aggression on the part of the victim. If no unlawful aggression has been
proved, no self-defense may be successfully pleaded, whether complete or
incomplete. In other words in self-defense, unlawful aggression is a primordial
element.

5. ID.; ID.; ID.; ID.; UNLAWFUL AGGRESSION, DEFINED. Unlawful aggression

presupposes an actual, sudden and unexpected attack or imminent danger on the
life and limb of a person not a mere threatening or intimidating attitude but
most importantly, at the time the defensive action was taken against the aggressor.

6. REMEDIAL LAW; EVIDENCE; FINALITY OF THE FINDINGS OF FACT OF THE

TRIAL COURT; EXCEPTION; MATERIAL CIRCUMSTANCES, IGNORED; ARMED VICTIM
ATTACKED PETITIONER IN CASE AT BAR. Contrary to the ndings of both the
appellate and trial court, there are facts extant on record which clearly shows that it
was an armed victim who initially attacked petitioner with a balisong. Petitioner
testied on the assault and his account was corroborated by the witness David
Olivario, who was ve meters away and saw what transpired. He remained
steadfast and unwavering on cross-examination despite intense grilling by the
prosecution and further clarificatory questioning from the trial court itself.

7. ID.; ID.; ID.; ID. ID.; PHYSICAL EVIDENCE MORE IN ACCORD WITH
PETITIONER'S VERSION; CASE AT BAR. The physical evidence is more in accord
with petitioner's version of what transpired; specically his assertion that it was the
victim who was armed and persisted in his attack on the petitioner even though the
latter locked himself inside the dark room of his stall to protect himself. The ndings
of the Police Investigator SPO3 contained in the Advance Information Report
discloses that "holes were observed at the door near the door lock of suspect's rush
ID photo booth apparently made by a hard pointed instrument." Aside from stating
that a fan knife and a pair of scissors which both yielded positive results for traces of
human blood were recovered, the report went further to note that the "bloodied
scissor were recovered in front of suspect's rush photo booth door." Said entries
particularly that referring to the location of the bloodied scissors, supports
petitioner's claim that when he could no longer avoid the unlawful aggression of the
victim, he was compelled to grab at the instrument inside the booth to defend
himself. However, the scissors fell from his grasp thus forcing him to desperately
grapple for the possession of the fan knife.

8. ID.;. ID.; ID.; ID.; ID.; BEFORE THE FATAL INCIDENT, THE VICTIM SOUGHT TO
CONFRONT PETITIONER; CASE AT BAR. Circumstances prior to the fatal incident
shows, it was the victim who purposely sought to confront the petitioner because
the latter had his business permit copied without his permission as testied by the
aunt of both the victim and the petitioner.

9. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; SELF DEFENSE; WOUNDS

SUSTAINED BY BOTH VICTIM AND ACCUSED, COMPARED; SUPERFICIALITY OF
WOUNDS INFLICTED ON ACCUSED DOES NOT PER SE NEGATE SELF DEFENSE;
CASE AT BAR. The records reveal that while indeed numerous wounds were
sustained by the victim, the Medico Legal Ocer who conducted the autopsy
admitted that of the thirty ve (35) wounds supposedly inicted, thirty-three (33)
were scratches and contusions while only six (6) were penetrating stab wounds. As
regards the nding that petitioner suered only one hand wound, it should be
stressed that the superciality of the nature of the wounds inicted on the accused
does not per se, negate self defense. Indeed, to prove self-defense, the actual
wounding of the person defending himself is not necessary. It is sucient that the
aggression be attempted so as to give rise to the right to prevent it. The. act of a
person armed with a bladed weapon pursuing another constitutes unlawful
aggression because it signies the pursuer's intent to commit an assault with this
weapon.

9. ID.; ID.; ID.; MEASURE OF RATIONAL NECESSITY OF THE MEANS EMPLOYED;

FOUND IN THE SITUATION AS IT APPEARED TO PETITIONER WHEN THE BLOW WAS,
STRUCK. The particular circumstances which confronted the petitioner at the
time of the incident condoned the means he employed to protect his life. It must be
remembered that the measure of rational necessity is to be found in the situation as
it appeared to petitioner at the time when the blow was struck. The law does not
require that he should mete out his blows in such manner that upon a calm and
deliberate review of the incident it will not appear that he exceeded the precise
limits of what was absolutely necessary to put his antagonist hors de combat, or
that he struck one blow more than was absolutely necessary to save his own life or
that he failed to hold his hand so as to avoid inicting a fatal wound where a less
severe stroke might have served the purpose. Under such conditions, an accused
cannot be expected to reect coolly nor wait after each blow to determine the
effects thereof.

10. ID.; ID.; ID.; LACK OF SUFFICIENT PROVOCATION ON THE PART OF

PETITIONER; CASE AT BAR. When the law speaks of provocation either as a
mitigating circumstance or as an essential element of self-defense, it requires that
the same be sucient or proportionate to the act committed and that it be
adequate to arouse one to its commission. It is not enough that the provocative act
be unreasonable or annoying. This third requisite of-self-defense is present: (1)
when no provocation at all was given to the aggressor; (2) when, even if
provocation was given, it was not sucient; (3) when even if the provocation was
sucient, it was not given by the person defending himself, or (4) when even if a
provocation was given by the person defending himself, it was not proximate and
immediate to the act of aggression.

11. ID.; ID.; ID.; WHEN QUESTION RAISED IS WHO BETWEEN THE ACCUSED AND
THE OFFENDED PARTY GAVE PROVOCATION, CIRCUMSTANCES' OF SUBJECTIVE,
OBJECTIVE AND SOCIAL CHARACTER MAY BE CONSIDERED. The fact that
petitioner borrowed the permit of the victim and had it photocopied without the
latter's permission two (2) days before the incident which was resented by both the
victim and his wife can hardly be considered a provocation sucient to merit so
deadly an assault with a bladed weapon. Moreover, the act was neither immediate
nor proximate. What, in fact, appears on record is the bellicose temperament of the
victim and his spouse, who, despite the advice of their Aunt Maria Cano to calm
down, still persisted in confronting petitioner. When the question is raised who
between the accused and the oended party gave provocation, the circumstances of
subjective, objective and social character may be considered in reaching a denite
conclusion. Thus, an accused, to prove provocation in connection with the plea of
self-defense, may show that the victim, as in this case, had a quarrelsome and
irascible disposition.

12. ID.; ID.; ID.; PETITIONER WAS IMPELLED BY THE INSTINCT OF SELF-
PRESERVATION; CASE AT BAR. Two other notable circumstance on record tend to
show that petitioner was impelled by the instinct of self-preservation rather than
the murderous urge of one bent on killing. The rst is when petitioner was able to
wrest the balisong from the victim, he never took advantage of the opportunity to
attack his already weaponless brother. Rather, he stood still and was forced to act
only when the victim picked up the scissors and lunged at him again. The second
instance is when the victim fell. Had petitioner been actuated by homicidal
intentions, he would have persisted in his attack on his prostrate brother. He did
nothing of the sort. He, in fact, intended to lift the victim up and bring him to the
hospital but, the sudden appearance of the victim's wife who hit him with a chair
forced him to fee. Moreover, armed people were attracted by the shouts of the
victim's wife and had gathered and started pursuing him.

I3. REMEDIAL LAW; EVIDENCE; AFFIDAVIT OF RETRACTION OF VICTIM'S

WIDOW NOT CONSIDERED IN CONJUNCTION WITH PREVAILING FACTS; CASE AT
BAR. The general policy is for the courts not to attach any persuasive evidentiary
value to the adavit of retraction of the victim's widow, such sworn statement
acquires a weightier and more decisive evidentiary consideration when taken in
conjunction with the other prevailing facts of the case. Thus, it has oft been said
that where inculpatory facts and circumstances are susceptible of two or more
interpretations, one of which is consistent with the innocence of the accused while
the others may be compatible with the nding of guilt, the Court must acquit the
accused because the evidence does not fulll the test of moral certainty required for
conviction.

14. CRIMINAL LAW; REVISED PENAL CODE; JUSTIFYING CIRCUMSTANCES;

SELF-DEFENSE; PRESENT IN THE KILLING, NO CRIMINAL AND CIVIL LIABILITY CAN
ATTACH; CASE AT BAR. All told, evidence shows that petitioner acted in lawful
self-defense. Hence, his act of killing the victim was attended by a justifying
circumstance, for which no criminal and civil liability can attach. Article 11 (1) of the
Revised Penal Code expressly provides that anyone who acts in lawful self-defense
does not incur any criminal liability. Petitioner is not civil liable for his lawful act.
The only instance when a person who commits a crime with the attendance of a
justifying circumstance incurs civil liability is when he, in order to avoid an evil or
injury, does an act which causes damage to another, pursuant to Subdivision 4 of
Article 11 of the Revised Penal Code. Otherwise stated, if a person charged with
homicide successfully pleads self-defense, his acquittal by reason thereof will
extinguish his civil liability.

DECISION

YNARES-SANTIAGO, J : p

The primordial issue to be resolved in this petition for certiorari is whether or not
petitioner killed his brother in self-defense.
ECaTAI

Petitioner Conrado Cano y Sampang and his deceased brother Orlando Cano were
rivals in the Rush ID Photo business and had booths along the sidewalk of Rizal
Avenue, Sta. Cruz, Manila fronting the Philippine Trust Bank and Uniwide Sales
Department Store. The fateful altercation which culminated in the fatal stabbing of
Orlando Cano stemmed out of this rivalry, particularly the incident where Conrado
took the business permit from the booth of Orlando without his permission thus
incurring the latter's ire.

The prosecution's version of what transpired as summarized in the People's brief 1

shows that in the morning of May 31, 1993, at about 7:00 o'clock, the victim
Orlando Cano arrived at the Rush ID Booth of petitioner located below the LRT line
in Rizal Avenue, Sta. Cruz, Manila. The victim asked David Olivario, an employee of
petitioner, where the latter was. The victim angrily said that petitioner was
pakialamero. He also said, "Putang ina niya! Why did he Xerox our permit." Since
petitioner had not yet arrived, the victim returned to his own Rush ID booth located
several meters away. 2

Later, at about 9:30 a.m., petitioner arrived at his Rush ID booth. After giving
supplies to Olivario, petitioner said he was going to the City Hall. He faced the
mirror and started to comb his hair. The victim suddenly arrived and held petitioner
on the shoulders and turned him around. The victim asked him, "Anong gusto mong
mangyari?" Accused did not answer. 3

The victim tried to stab petitioner with a balisong but the latter was able to run and
lock himself inside the dark room inside his booth. The victim followed him and tried
to open the door of the dark room and shouted, "Lumabas ka diyan! Putang ina mo,
papatayin kita!" Petitioner did not come out. The victim tried to force the door open
by kicking it and stabbed the door with his balisong. The door of the dark room
suddenly opened and petitioner emerged carrying a pair of scissors. The victim and
petitioner struck at each other. During the scue, the scissors fell from petitioner's
hand. He then grabbed the knife of the victim who, in turn, picked up the scissors.
They again attacked each other. 4

The victim fell and his wife rushed to his side. Petitioner ed from the scene. The
victim's wife asked for assistance from the people in the vicinity. The victim was
then loaded on a jeep and was rushed to a hospital, but he was dead on arrival. 5

The autopsy report submitted by the medico-legal ocer of the Western Police
District, Dr. Manuel Lagonera, shows that the victim sustained at least thirty (30)
stab wounds, six (6) of which were fatal. 6 On the other hand, petitioner suered
only an incised wound on the right hand measuring six (6) cm., which required less
than nine (9) days of treatment.

Petitioner had a dierent account of what transpired. He testied that on May 31,
1993 at around 9:30 a.m. he went to his Rush ID booth in front of the Philtrust
Bank to deliver supplies to his photographer, David Olivario. 7 After handing over
said supplies to Olivario, petitioner intended to go to the Manila City Hall to apply
for a business permit. 8

Petitioner's earlier application for a permit was denied. 9 He sought a

reconsideration from the city ocials and argued that his brother was issued a
similar permit. In order to prove his point, he borrowed the permit of his brother
from his nephew, Wilson Reyes, to have it machine copied. 10 After doing so,
petitioner returned it. 11 The victim apparently resented this because petitioner was
informed by David Olivario that Gloria Cano later went to petitioner's stall angrily
inquiring why they got the permit. 12

As petitioner was combing his hair and preparing to leave for the Manila City Hall,
the victim, Orlando, suddenly appeared from behind, grabbed him by the left
shoulder and jerked him around so that they were face to face. 13 As they stood face
to face, Orlando menacingly said, "Anong gusto mong mangyari?" 14 Petitioner
noticed Orlando holding a balisong, and he ran to the dark room of his stall. 15

The victim pursued him and tried to force open the locked dark room door by kicking
it and stabbing it with the fan knife. 16 He kept shouting, "Get out of there!
Pakialamero ka! Get out of there and I will kill you!" 17 The door suddenly gave way
and, as it opened, the victim charged at petitioner, but he was able to evade the
attack. Snatching a pair of scissors nearby, petitioner retaliated but the scissors fell
from his grasp because it was parried by the victim. 18 Petitioner then grabbed the
hand of the victim holding the balisong and they grappled to gain possession
thereof. He eventually wrested control of the knife and as he stood momentarily,
the victim picked up the scissors and again lunged at him. 19

With nowhere to go, petitioner was forced to defend himself from the onslaught of
the victim who was armed with the nine-inch long pair of pointed scissors. 20 No
bystanders tried to pacify them as they engaged in their deadly struggle for almost
two (2) minutes. Suddenly, the victim collapsed and fell bloodied to the floor. 21

Petitioner stooped to lift his brother up, intending to bring him to the hospital.
However, he was hit by the victim's wife with a chair. Then, she started shouting,
"Holdupper!" 22 Petitioner was forced to ee from the scene for fear of being
lynched by the people who had gathered around armed with clubs. The people
pursued him but when he saw a policeman coming in his direction, he threw the
balisong away and raised his hands in surrender. 23 He was then brought to the
police precinct and later to the hospital for treatment of his injuries. 24

Petitioner was charged with Homicide in an Information 25 which alleges

That on or about May 31, 1993, in the City of Manila, Philippines, the said
accused, with intent to kill, did then and there willfully, unlawfully and
feloniously attack, assault and use personal violence upon one ORLANDO
CANO y SAMPANG, by then and there stabbing the latter on the dierent
parts of his body, thereby inicting upon the said ORLANDO CANO Y
SAMPANG mortal and fatal wounds which were the direct and immediate
cause of his death thereafter.

Contrary to law.

The case was docketed as Criminal Case No. 93-121668 and led with the Regional
Trial Court of Manila, Branch 31.

Upon arraignment, petitioner pleaded not guilty to the oense charged. The case
thereupon proceeded to trial. After trial, the court a quo rendered judgment 26
nding petitioner guilty beyond reasonable doubt of the crime and sentencing him
to serve an imprisonment of seventeen (17) years, four (4) months and one (1) day
of reclusion temporal and to indemnify the heirs of the deceased P50,000.00 plus
costs.

Petitioner interposed an appeal to the Court of Appeals, where it was docketed as

CA-G.R. CR No. 19254.

During the pendency of the appeal, 27 Gloria Cano, the widow of the victim,
executed a Sinumpaang Salaysay 28 stating, among others, that petitioner merely
acted in self-defense and that she was withdrawing the charge against him. This
sworn statement became the basis of an Urgent Motion for New Trial 29 on the
ground of newly discovered evidence filed by counsel for petitioner.

This motion for new trial was, however, denied by the Court of Appeals in a
Resolution dated March 19, 1998. 30

The appellate court subsequently rendered judgment arming petitioner's

conviction but modifying the penalty to an indeterminate sentence of imprisonment
ranging from nine (9) years and one (1) day of prision mayor, as minimum, to
fourteen (14) years and eight (8) months of reclusion temporal, as maximum.
Petitioner was likewise ordered to pay the heirs of the victim actual damages of
P24,605.75; P50,000.00 as moral damages and another P50,000.00 as civil
indemnity ex delicto plus costs. 31

Preliminarily, the Solicitor General argues that the petition raises merely factual
issues, such as whether or not petitioner is entitled to the justifying circumstance of
self-defense and the mitigating circumstance of provocation or threat and voluntary
surrender. These issues, says the Solicitor, are not proper for a petition for review
under Rule 45 of the Rules of Civil Procedure.

Concededly, those who seek to avail of the remedies provided by the rules must
adhere to the requirements thereof, failure of which the right to do so is lost. It is,
however, equally settled that rules of procedure are not to be applied in a very rigid,
technical sense and are used only to help secure substantial justice. If a technical
and rigid enforcement of the rules is made, their aim would be defeated. 32 They
should be liberally construed so that litigants can have ample opportunity to prove
their claims and thus prevent a denial of justice due to technicalities. 33

Therefore, we shall proceed to resolve the issue of whether or not petitioner is

entitled to invoke the justifying circumstance of self-defense, considering that what
is at stake is not merely his liberty, but also the distinct possibility that he will bear
the stigma of a convicted felon and be consigned to the fate of being a social pariah
for the rest of his life.

As can be seen from the foregoing, the prosecution and the defense have
diametrically opposed factual versions of what transpired immediately preceding
the killing. Our task is to determine which of them is the truth. In resolving such
conict, dealing as it does with the credibility of witnesses, the usual rule is for us to
respect the ndings of the trial court considering that it was in a better position to
decide the question, having heard the witnesses themselves and having observed
their deportment and manner of testifying during trial. 34 Nonetheless, this rule is
circumscribed by well-established exceptions. 35

In the case at bar, the record shows circumstances of weight and inuence which
have been overlooked, or the signicance of which has been misinterpreted, that if
considered would affect the result of the case. 36

For self-defense to prosper, petitioner must prove by clear and convincing evidence
the following elements: (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
sucient provocation on the part of the person defending himself. 37 Although all
the three elements must concur, self-defense must rest rstly on proof of unlawful
aggression on the part of the victim. If no unlawful aggression has been proved, no
self-defense may be successfully pleaded, whether complete or incomplete. 38 In
other words in self-defense, unlawful aggression is a primordial element. It
presupposes an actual, sudden and unexpected attack or imminent danger on the
life and limb of a person not a mere threatening or intimidating attitude but
most importantly, at the time the defensive action was taken against the aggressor.
39

In the case at bar, there are several material circumstances which were ignored by
both the court a quo and the appellate tribunal.

First, contrary to the ndings of both the appellate and trial courts, there are facts
extant on record which clearly shows that it was an armed victim who initially
attacked the petitioner with a balisong. Petitioner testified on the assault thus:
Atty. Ferrer:

What happened after that when Orlando Cano grabbed you and came
face to face with him?

A. I answered him none but he was in a menacing position with his

hands around something and I suddenly ran away.

Q. What was that something in the hands of Orlando Cano that made
you run away?

A. Balisong "29," Sir.

Atty. Ferrer:

And where did you run to?

A. I went inside my booth because that is the only place I can run to.

Q. And what happened inside your booth, if any?

A. He also ran after me and then when I was inside we were having a tug
of war of the doorknob which I tried to close and which he tried to
open.

Q. What happened after that?

A. But I was able to close the door but he kept on kicking the door that I
turned deaf.

Q. What else happened, if any?

A. While he was kicking, he was also stabbing the door with the "29"
(balisong) he was holding.

Q. And you said you heard the thudding of the door making noise, what
happened if any?

A. He kept on shouting, "Get out of there! Pakialamero ka! " "Get out of
there and I will kill you."

Q. What did you do did you go out?

A. While he was shouting I did not notice that the door was not
completely closed because the lock went on and the door suddenly
opened.

Q. What happened after the door got open?

A. When the door opened he again rushed me, stabbed and I was able
to evade it.

Atty. Ferrer:
 What else happened?

Witness:

A. I was able to grab a scissors and that was the time I retaliated.

Q. Who owned this scissors?

A. That scissors was mine because it is used in cutting paper.

Q. Now, you said you retaliated after grabbing a pair of scissors where
did you retaliate?

A. I was about to retaliate in the door of the room because the room
was very small.

Q. Where you able to retaliate?

A. No, sir, I was not able to retaliate because the scissors fell when he
was able to parry it.

Q. What happened after that, after that piece of scissors fell from your
hold?

A. I took hold of his hand holding the "balisong" and we had a scue to
get hold or possession of the "balisong."

Q. What happened after the scuffling for the "balisong"?

A. After one (1) minute I was able to grab possession of the "balisong."

Q. What happened after that?

A. When I was able to get hold of the "balisong" I just remained standing
and I just . . .

Q. What else happened?

A. He was able to pick up the scissors that I dropped and he again

launched [himself] at me [with] the scissors.

Q. What did you do, if any?

A. That was the time when my mind was confused and I don't have any
place to go and I tried to defend myself and we fought each other.

Atty. Ferrer

And at the time when you said you fought each other, Orlando Cano
was holding the scissors and you were holding the "balisong,"
correct?

A. Yes, sir. 40
David Olivario, who was ve meters away and saw what transpired, corroborated
petitioner's account. 41 He remained steadfast and unwavering on cross-
examination despite intense grilling by the prosecution 42 and further claricatory
questioning from the trial court itself. 43

Second, the physical evidence is more in accord with petitioner's version of what
transpired, specically his assertion that it was the victim who was armed and
persisted in his attack on the petitioner even though the latter locked himself inside
the dark room of his stall to protect himself. The ndings of Police Investigator SPO3
Julian Z. Bustamante contained in his Advance Information Report 44 discloses that
"[H]oles were observed at the door near the door lock of suspect's rush ID photo
booth apparently made by a hard pointed instrument. . ." 45 Aside from stating that
a fan knife and a pair of scissors which both yielded positive results for traces of
human blood were recovered, the report went further to note that the "bloodied
scissor were (sic) recovered in front of suspect's rush ID photo booth door." 46

The foregoing entries of the Advance Information Report, particularly that referring
to the location of the bloodied scissors, supports petitioner's claim that when he
could no longer avoid the unlawful aggression of the victim, he was compelled to
grab at the instrument inside the booth to defend himself. However, the scissors fell
from his grasp, thus forcing him to desperately grapple for possession of the fan
knife.

Third, circumstances prior to the fatal incident shows that it was the victim who
purposely sought to confront the petitioner because the latter had his business
permit machine copied without his permission. Maria Cano, an aunt of the victim
and petitioner, testified thus:

Q: And Orlando Cano, did he tell you any reason why he was waiting for
Conrado Cano [at] that particular morning?

A: Because he was very angry and said that there will be an encounter
between them.

Atty. Ferrer:

What did you do, if any?

Witness:

A: You brothers you should calm down because you are brothers.

Q: By the way what was the reason why, if you know why, Orlando told
you that "sila'y magtutuos," quoting your own words?

A: Orlando Cano is mad because Conrado Cano got Orlando's business

permit and had it xeroxed and after xeroxing it and he returned the
permit of Orlando Cano.
 Q: Could you tell us how Orlando Cano uttered those words "magtutuos.
. ."?

A: Orlando Cano told me this is the day when we will have a

confrontation and at this juncture, I even tapped [his] right pocket, I
did not see what was there but I saw the handle.

xxx xxx xxx

Q: As the aunt of the two (2) what was your reaction when Orlando told
you that?

A: I told, Orlando, calm down because you are brothers and if something
bad that will happen (sic) your mother will suer because of the
incident.

Atty. Ferrer:

And what was the reaction of Orlando, if any, after you said those
words of advice?

A: Orlando Cano answered me, well, shall I remain silent and will not utter
any word at all?

Q: And was that that (sic) word confined to Orlando?

A: No, Sir, because I also advised Gloria.

Q And what was the advise you gave Gloria?

A: I told Gloria because the only one who can prevent this incident is you
because Orlando is your husband.

Q: And what was the reaction, if any of Gloria Cano?

A: Gloria told me, there is nothing I can do because they are brothers
and they are responsible for their own lives.

Q: What else happened, if any?

A: That was the time I bid goodbye. 47

(emphasis and italics supplied)

Fourth, the record reveals that while indeed numerous wounds were sustained by
the victim, the Medico-Legal Officer who conducted the autopsy admitted that of the
thirty-ve (35) wounds supposedly inicted, thirty-three (33) were scratches and
contusions while only six (6) were penetrating or stab wounds. 48 As regards the
nding that petitioner suered only one hand wound, it should be stressed that the
superciality of the nature of the wounds inicted on the accused does not, per se,
negate self-defense. Indeed, to prove self-defense, the actual wounding of the
person defending himself is not necessary. It is sucient that the aggression be
attempted so as to give rise to the right to prevent it. 49 The act of a person armed
with a bladed weapon pursuing another constitutes unlawful aggression because it
signifies the pursuer's intent to commit an assault with this weapon. 50

The particular circumstances which confronted the petitioner at the time of the
incident condoned the means he employed to protect his life. It must be
remembered that the measure of rational necessity is to be found in the situation as
it appeared to petitioner at the time when the blow was struck. The law does not
require that he should mete out his blows in such manner that upon a calm and
deliberate review of the incident it will not appear that he exceeded the precise
limits of what was absolutely necessary to put his antagonist hors de combat, or
that he struck one blow more than was absolutely necessary to save his own life; or
that he failed to hold his hand so as to avoid inicting a fatal wound where a less
severe stroke might have served the purpose. Under such conditions, an accused
cannot be expected to reect coolly nor wait after each blow to determine the
effects thereof. 51

. . . the reasonableness of the means employed to repel an actual and

positive aggression should not be gauged by the standards that the mind of
a judge, seated in a swivel chair in a comfortable oce, free from care and
unperturbed in his security, may coolly and dispassionately set down. The
judge must place himself in the position of the object of the aggression or
his defender and consider his feelings, his reactions to the events or
circumstances. It is easy for one to state that the object of the aggression
or his defender could have taken such action, adopted such remedy, or
resorted to other means. But the defendant has no time for cool
deliberation, no equanimity of mind to nd the most reasonable action,
remedy or means to. He must act from impulse, without time for
deliberation. The reasonableness of the means employed must be gauged by
the defender's hopes and sincere beliefs, not by the judge's. 52

Fifth, there was lack of sucient provocation on the part of petitioner. When the
law speaks of provocation either as a mitigating circumstance or as an essential
element of self-defense, it requires that the same be sucient or proportionate to
the act committed and that it be adequate to arouse one to its commission. It is not
enough that the provocative act be unreasonable or annoying. 53 This third requisite
of self-defense is present: (1) when no provocation at all was given to the aggressor;
(2) when, even if provocation was given, it was not sucient; (3) when even if the
provocation was sucient, it was not given by the person defending himself; or (4)
when even if a provocation was given by the person defending himself, it was not
proximate and immediate to the act of aggression. 54

Petitioner borrowed the permit of the victim and had it photocopied without the
latter's permission two (2) days before the incident. 55 The victim and his wife
resented this. However, this can hardly be considered a provocation sucient to
merit so deadly an assault with a bladed weapon. Moreover, the act was neither
immediate nor proximate. 56 What, in fact, appears on record is the bellicose
temperament of the victim and his spouse who, despite the advice of their Aunt
Maria Cano to calm down, still persisted in confronting petitioner. When the
question is raised who between the accused and the oended party gave
provocation, the circumstances of subjective, objective and social character may be
considered in reaching a denite conclusion. 57 Thus an accused, to prove
provocation in connection with his plea of self-defense, may show that the victim,
as in this case, had a quarrelsome and irascible disposition. 58

Sixth, two other notable circumstances on record tend to show that petitioner was
impelled by the instinct of self-preservation rather than the murderous urge of one
bent on killing. The rst is when petitioner was able to wrest the balisong from the
victim, he never took advantage of the opportunity to attack his already weaponless
brother. Rather, he stood still and was forced to act only when the victim picked up
the scissors and lunged at him again. 59 The second instance is when the victim fell.
Had petitioner been actuated by homicidal intentions, he would have persisted in
his attack on his prostrate brother. He did nothing of the sort. He, in fact, intended
to lift the victim up and bring him to the hospital but the sudden appearance of the
victim's wife who hit him with a chair forced him to ee. Moreover, armed people
were attracted by the shouts of the victim's wife and had gathered and started
pursuing him. 60

Seventh, while the general policy is for the courts not to attach any persuasive
evidentiary value to the adavit of retraction of the victim's widow, such sworn
statement acquires a weightier and more decisive evidentiary consideration when
taken in conjunction with the other prevailing facts in this case. Thus, it has oft
been said that where inculpatory facts and circumstances are susceptible of two or
more interpretations, one of which is consistent with the innocence of the accused
while the others may be compatible with a nding of guilt, the Court must acquit
the accused because the evidence does not fulfill the test of moral certainty required
for conviction. 61

All told, evidence shows that petitioner acted in lawful self-defense. Hence, his act of
killing the victim was attended by a justifying circumstance, for which no criminal
and civil liability can attach. 62 Article 11 (1) of the Revised Penal Code expressly
provides that anyone who acts in lawful self-defense does not incur any criminal
liability. Likewise, petitioner is not civilly liable for his lawful act. The only instance
when a person who commits a crime with the attendance of a justifying
circumstance incurs civil liability is when he, in order to avoid an evil or injury, does
an act which causes damage to another, pursuant to subdivision 4 of Article 11 of
the Revised Penal Code. 63 Otherwise stated, if a person charged with homicide
successfully pleads self-defense, his acquittal by reason thereof will extinguish his
civil liability. 64

WHEREFORE, in view of all the foregoing, the judgment appealed from is

REVERSED and SET ASIDE. Petitioner Conrado Cano y Sampang is ACQUITTED of
the crime charged against him and his immediate release from custody is ordered
unless there is another cause for his continued detention.

Costs de oficio.

SO ORDERED.
Davide, Jr., C .J ., Vitug, Carpio and Azcuna, JJ ., concur.

Footnotes

1. Rollo, pp. 7376.

2. TSN, 18 February 1994, pp. 36, 10.

3. Id., pp. 14, 15; 16 May 1994, pp. 35.

4. Id., pp. 15, 16; 28 February 1994, pp. 35.

5. TSN, 2 August 1993, p. 5; 28 February 1994, pp. 5, 6.

6. Record, pp. 5962; Exhibit F.

7. Id.

8. Id., p. 4.

9. Id., p. 14.

10. Id., p. 15.

11. Id.

12. Id., p. 16.

13. Id., pp. 45.

14. Id., p. 5.

15. Id., pp. 56.

16. Id., p. 6.

17. Id.

18. Id., p. 7.

19. Id., pp. 78.

20. Id., pp. 89.

21. Id., p. 9.

22. Id., p. 10.

23. Id.

24. Id., pp. 1011.

25. Rollo, p. 25.

26. Id., pp. 5864; penned by Judge Regino T. Veridiano II.

27. Docketed as CA-G.R. CR No. 19254 entitled People v. Conrado Cano y Sampang.

28. Rollo, p. 100.

29. Id., p. 103.

30. Id., p. 118.

31. Id., p. 138; penned by Associate Justice Renato C. Dacudao, concurred in by

Associate Justices Ruben T. Reyes and Mariano C. Del Castillo.

32. Director of Lands v. CA, 363 Phil. 117 [1999].

33. Cometa v. CA, 361 Phil. 383 [1999].

34. People v. Atilano Gilbero , G.R. No. 142005, 23 January 2002, citing People v.
Cura, 240 SCRA 234 [1999]; People v. Aquino, 284 SCRA 369 [1998].

35. Factual ndings of the trial court are entitled to great weight on appeal except
when: (1) the inference made is manifestly mistaken, absurd or impossible; (2)
there is grave abuse of discretion; (3) the nding is grounded entirely on
speculations, surmises or conjectures; (4) the judgment is based on
misapprehension of facts; (5) the ndings are conicting; (6) the court in making
its ndings, went beyond the issues of the case and the same is contrary to the
admissions of the contending parties; (7) the ndings of the Court of Appeals are
contrary to those of the trial court; (8) the ndings of fact are conclusions without
citation of specic evidence on which they are based; (9) when the court
manifestly overlooked certain relevant facts not disputed by the parties and which
if properly considered would justify a dierent conclusion; and (10) when the
ndings are premised on absence of evidence and are contradicted by the
evidence on record. (Golangco v. CA , 283 SCRA 493 [1997]). See also People v.
Gulion, G.R. No. 141183, 18 January 2001, 349 SCRA 610, 620621, citing People
v. Dizon, 336 SCRA 54, 61 [2000].

36. Solinap v. Locsin , G.R. No. 146737, 10 December 2001, 371 SCRA 711; see also
People v. Samson, et al., G.R. No. 133437, 16 November 2001, p. 11, citing People
v. Dizon, 309 SCRA 669, 687 [1999]; People v. Batidor, 303 SCRA 335, 345 [1999]
and People v. Dinglasan , 267 SCRA 26, 39 [1997]; see also People v. Arrojado ,
G.R. No. 130492, 31 January 2001, 350 SCRA 679, 691.

37. People v. Galvez , G.R. No. 130397, 17 January 2002.

38. People v. Dela Cruz , G.R. No. 139970, 6 June 2002.

39. People v. Galvez , supra.

40. TSN, 16 May 1994, pp. 38.

41. TSN, 18 February 1994, pp. 1416; 28 February 1994, pp. 35.

42. TSN, 21 March 1994, pp. 3454.

43. Id., pp. 5456.

44. Exhibit H; Record, pp. 6364.

45. Record, p. 64.

46. Id.

47. TSN, 22 April 1994, pp. 37.

48. TSN, 27 August 1993, p. 3.

49. Aquino R.C., Revised Penal Code, 1997 ed., Vol. I, p. 139.

50. Id.

51. Aquino R.C., Revised Penal Code, supra, pp. 147148, citing People v. Espina , CA
49 O.G. 983; People v. Del Pilar, CA 44 O.G. 596 and U.S. v. Macasaet, 35 Phil. 229
[1916].

52. People v. Fajardo, CA-G.R. No. 4679, 30 June 1950, 6 Velayo's Digest 115.

53. Aquino R.C., supra, p. 116, citing People v. Dolfo, CA 46 O.G. 1621.

54. Reyes L.B., The Revised Penal Code, Vol. I, 14th Revised Edition (1998), pp. 179
180.

55. TSN, 16 August 1994, pp. 1416; 1 February 1994, pp. 710.

56. U.S. v. Laurel, 22 Phil. 252 [1912].

57. People v. Sotelo, 55 Phil. 396 [1931].

58. People v. Babiera, 52 Phil. 97, 110 [1928].

59. TSN, 16 May 1994, pp. 78, 3031.

60. Id., pp. 910.

61. People v. Danilo Abino y Advincula , G.R. No. 137288, 11 December 2001, citing
People v. Solis , G.R. No. 138986, 20 January 2001, citing People v. Ale , 145 SCRA
50 [1986]; People v. Malbog , 342 SCRA 620 [2000]; People v. Sevilla , 339 SCRA
625 [2000].

62. Frias v. People, 245 Phil. 1, 14 [1984].

63. Revised Penal Code, Article 101.

64. Marcia, et al. v. Court of Appeals , 205 Phil. 147, 157 [1983].