FIRST DIVISION

[G.R. No. 109800. March 12, 1996.]

PEOPLE OF THE PHILIPPINES , plaintiff, vs . WILFREDO BAUTISTA y

NIELES , accused-appellant.

The Solicitor General for plaintiff-appellee.

Santiago, Arevalo, Tomas & Associates for accused-appellant.

SYLLABUS

1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCE; SELF-DEFENSE; THE

ELEMENT OF AGGRESSION MUST BE REAL OR AT LEAST IMMINENT AND NOT MERELY
IMAGINARY. — The claim of appellant that the act of the victim in reaching for a clutch bag
and slapping his fellow security guard constitute unlawful aggression is devoid of merit.
The aggression must be real or at least imminent and not merely imaginary. A belief that a
person is about to be attacked is not su cient. Even an intimidating or threatening
attitude is by no means enough. A mere push or shove not followed by other acts placing
in real peril the life or personal safety of the accused is not unlawful aggression. In the
instant case, the victim slapped another person and not accused-appellant. The slapping
could not therefore have given him a well grounded or reasonable belief that he was in
imminent danger of death or great bodily harm to compel him to defend himself by killing
the victim. If no unlawful aggression attributed to the victim is established there can be no
self-defense, complete or incomplete. (People v. Galit, G.R. No. 97432, 1 March 1994, 230
SCRA 486).
2. ID.; QUALIFYING CIRCUMSTANCE; EVIDENT PREMEDITATION; WHEN NOT
PRESENT. — We nd no evident premeditation in the killing of the victim. The records show
that when appellant went near the victim, who was then arguing with a fellow security
guard he got the latter's shotgun, walked towards the rear of the car of the victim, cocked
his rearm and suddenly shot the latter. There was no proof of the time when the intent to
commit the crime was engendered in the mind of accused-appellant, the motive and all
those facts and antecedents which when combined would show that the crime was
knowingly premeditated or that accused-appellant acted not only with a pre-existing
design, but with that cold and deep meditation and tenacious persistence in the
accomplishment of his criminal purpose. (Aquino, Ramon C., The Revised Penal Code,
1987 ed., Vol. I, p. 353.)
3. ID.; ID.; ABUSE OF SUPERIOR STRENGTH; WHEN NOT ESTABLISHED. — The
fatal shot was red by only one of two (2) accused, there being no proof that they
cooperated to take advantage of their superior strength. The fact that they did not
conspire to kill the deceased implies that they did not jointly exploit their superior strength.
(People v. Ybañez, No. L-30421, 28 March 1974, 56 SCRA 210)
4. ID.; ID.; TREACHERY; WHEN NOT APPRECIATED. — The circumstance that an
attack was sudden and unexpected to the person assaulted did not constitute the element
o f alevosia necessary to raise homicide to murder, where it did not appear that the
aggressor consciously adopted such mode of attack to facilitate the perpetration of the
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 killing without risk to himself. Treachery cannot be appreciated if the accused did not
make any preparation to kill the deceased in such manner as to insure the commission of
the killing or to make it impossible or di cult for the person attacked to retaliate or
defend himself. [ People v. Unay, 97 Phil. 969 (1955); People v. Namit, 38 Phil. 926 (1918)].
When it does not appear that the shooting was premeditated nor that the accused had
consciously chosen a method of attack directly and especially to facilitate the perpetration
of the homicide without danger to himself, and his decision to shoot the victim seemed to
be so sudden and the position of both the victim and the accused was entirely accidental,
treachery cannot be imputed to the appellant. (People v. Abalos, 84 Phil. 771 (1949)).
Moreover, there is no treachery when the killing resulted from a verbal altercation between
the victim and the assailant such that the victim must have been forewarned of the
impending danger. (People v. Alacar, G.R. Nos. 64725-26, 20 July 1992, 211 SCRA 580)
5. ID.; MITIGATING CIRCUMSTANCE; PASSION AND OBFUSCATION; TO BE
APPRECIATED, MUST ORIGINATE FROM LAWFUL FEELINGS. — The obfuscation must
originate from lawful feelings [ People v. Silang Cruz , 53 Phil. 635 (1929)]. The turmoil and
unreason which naturally result from a quarrel or ght should not be confused with the
sentiment or excitement in the mind of a person injured or offended to such a degree as to
deprive him of his sanity and self-control, because the cause of this condition of mind
must necessarily have preceded the commission of the offense [ People v. Giner , 6 Phil.
406 (1906)].
HERMOSISIMA, JR., concurring and dissenting:
1. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCE TREACHERY; REQUISITES.
— In order that the aggravating circumstance of treachery can be appreciated, the
following requisites must concur: (1) that, at the time of the attack, the victim was not in a
position to defend himself; and (2) that the offender consciously adopted the particular
means, method or form of attack employed by him.
2. ID.; ID.; ID.; WHEN MAY BE ESTABLISHED. — The act of the accused-appellant
in taking the shotgun from Usman cannot be taken by the victim as an indication that he
will be shot by the accused-appellant, since there was clearly no warning from the
accused-appellant. The attack was sudden. The accused-appellant even went to the back
of the victim's car where he cocked the gun before approaching the victim in order to
shoot. The manner of attack adopted by the accused-appellant clearly established
treachery. The acts of the accused-appellant upon commencing the execution of his
design to kill the deceased constitute treachery, inasmuch as they tended to avoid every
risk to himself arising from the defense which the deceased might make [ People vs.
Parana, 64 Phil. 331]. The fact that an exchange of words preceded the assault would not
negate the treacherous character of the attack (People vs.Ricohermoso, 56 SCRA 431)
since the altercation was between the victim and Usman. Anent the second requisite, that
is, whether the accused-appellant consciously adopted the particular means employed in
the execution of his criminal act, was very well established from the records. It was
undisputed that the accused-appellant used a shotgun and red at a close range, hitting
the victim on the head which caused his instantaneous death. By aiming at the victim,
knowing fully well that the latter was unarmed, intent to kill was clearly manifested. The
victim was not only unarmed but was also deprived of all means to defend himself from or
evade the sudden and unexpected assault. (People vs. Mendoza, 236 SCRA 666). This
Court has held in the case of People vs. Lualhati, 234 SCRA 325 that there is treachery
where the victim was clearly not in any position to defend himself from the unreasonable
and unexpected attack of the accused.
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 DECISION

BELLOSILLO , J : p

WILFREDO BAUTISTA y NIELES appeals from the decision of the court a quo finding
him guilty of murder and imposing upon him a prison term of reclusion perpetua. 1 No
award for civil indemnity however was made in view of the reservation of the heirs of the
victim to file a separate civil action.
The Information alleged that on 2 April 1992, in Pasay City, accused-appellant
Wilfredo Bautista y Nieles and the other accused, namely, Gayak Usman y Adzed, Richard
Doe, John Doe, Peter Doe, William Doe, Vincent Doe and Edward Doe, in conspiracy with
one another, with treachery, evident premeditation and taking advantage of superior
strength, feloniously shot Alfonso Davila y Velasco with a rearm hitting him at the back of
his head which caused his death. 2
The evidence shows that at ten o'clock in the evening of 2 April 1992 victim Alfonso
Davila y Velasco, a ight steward of the Philippines Airlines (PAL), went to the In ight
Center of PAL at the MIA Road, Pasay City, to inquire about his ight schedule. Before his
car could enter Gate 1 it was stopped by accused Gayak Usman y Adzed and other
security guards of the Asian Security and Investigation Agency assigned in that area.
Usman told the victim that he could not enter the gate because he had no PAL sticker.
Davila showed Usman his ID placed in his wallet and thrust it on his face. The latter simply
told Davila that he should have pinned his ID on his chest. The verbal confrontation
however continued. At this point, accused-appellant Wilfredo Bautista, another security
guard of the Asian Security and Investigation Agency assigned at the entrance for
pedestrian at Gate 1, approached Usman and Davila 3 and remarked, "Sir, bakit nanampal
ka ng guardiya?" The victim retorted, "Bakit ka nakikialam. Itong kausap ko." 4 Accused-
appellant then took the shotgun slung on the shoulder of Usman and stepped back. The
argument between Usman and Davila continued. Then accused-appellant went to the back
of the car of Davila and cocked the shotgun. As he went near Davila the latter said, "Putang
ina ka. Huwag kang makikialam dito." 5 Then accused-appellant red at the victim hitting
him on the left side of his head which caused his death.
Dr. Valentine T. Bernales, NBI Medico-Legal O cer, conducted a post mortem
examination of the victim. He gave the cause of death as gunshot wound on the head. 6
On 22 March 1993 the accused appealed. But for failure of his counsel to le his
brief despite three (3) extensions granted him this Court dismissed his appeal. However,
upon motion for reconsideration, this Court on 3 August 1994 treated the motion as
appellant's brief and directed the Solicitor General to file appellee's brief.
In his motion for reconsideration, appellant contends that he should have only been
charged with and convicted for homicide and not murder. He submits that the victim
slapped with his wallet containing his ID appellant's fellow security guard Usman, who was
one of the accused before the trial court, which incident caught appellant's attention and
because of the victim's gauche remarks he (appellant) lost his composure and shot the
victim. Appellant also argues that treachery, conspiracy and abuse of superior strength
were not established by the prosecution because the shooting was accidental and/or
committed under a mistake of fact that the victim was about to reach for a gun inside his
car. Further, appellant alleges that if he should be made to answer for his act he should
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 only be guilty of homicide and entitled to the mitigating circumstances of voluntary
surrender, passion and obfuscation and/or incomplete self-defense. 7
The arguments of accused-appellant are not without merit. One accused-appellant
has admitted that he killed the victim, the burden is on him to establish the presence of any
circumstance which may relieve him from responsibility or mitigate the offense
committed. 8 To prove justi cation the accused must rely on the strength of his own
evidence and not on the weakness of that of the prosecution, for even if it be weak, it could
not be disbelieved after the accused has admitted the killing. In a plea of self-defense, it
must be shown that there was a previous unlawful aggression that placed the life of the
accused in danger and forced him to in ict more or less severe wounds upon his assailant,
employing therefor reasonable means to resist the unprovoked attack of which he was the
object. Accused-appellant failed to prove the presence of these circumstances. Instead, he
presented inconsistent allegations as to why he killed the victim.
Accused-appellant claims that he acted under a mistake of fact that the victim was
about to get a gun from his clutch bag inside the car. 9 At the same time he also argues
that he lost his equanimity when he saw the victim slap his co-accused security guard and
when he (appellant) tried to intervene he was also rudely treated by the victim.
The trial court found that the allegation about the presence of a clutch bag inside the
car is not supported by the evidence. In fact, all the personal belongings of the deceased in
his car were inventoried and the alleged clutch bag was not one of them; neither was there
a gun or any other weapon inside his car. These ndings of fact bear great weight and
consideration supported as they are by the evidence on record.
The claim of appellant that the act of the victim in reaching for a clutch bag and
slapping his fellow security guard constitute unlawful aggression is devoid of merit. The
aggression must be real or at least imminent and not merely imaginary. A belief that a
person is about to be attacked is not su cient. Even an intimidating or threatening
attitude is by no means enough. A mere push or shove not followed by other acts placing
in real peril the life or personal safety of the accused is not unlawful aggression. In the
instant case, the victim slapped another person and not accused-appellant. The slapping
could not therefore have given him a well grounded or reasonable belief that he was in
imminent danger of death or great bodily harm to compel him to defend himself by killing
the victim. If no unlawful aggression attributed to the victim is established there can be no
self-defense, complete or incomplete. 1 0
Notwithstanding the failure of accused-appellant to prove self-defense, the Court
nds him guilty only of homicide and not murder as found by the trial court. Not a single
circumstance alleged in the information qualifying the crime to murder is present.
We nd no evident premeditation in the killing of the victim. The records show that
when appellant went near the victim, who was then arguing with a fellow security guard he
got the latter's shotgun, walked towards the rear of the car of the victim, cocked his
rearm and suddenly shot the latter. There was no proof of the time when the intent to
commit the crime was engendered in the mind of accused-appellant, the motive and all
those facts and antecedents which when combined would show that the crime was
knowingly premeditated or that accused-appellant acted not only with a pre-existing
design, but with that cold and deep meditation and tenacious persistence in the
accomplishment of his criminal purpose. 1 1
No abuse of superiority was established. The fatal shot was red by only one of two
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 (2) accused, there being no proof that they cooperated to take advantage of their superior
strength. The fact that they did not conspire to kill the deceased implies that they did not
jointly exploit their superior strength. 1 2
Treachery was conspicuous in its absence. The victim knew of the oncoming danger
when appellant approached him and took Usman's shotgun. That was why the victim
asked appellant, "Bakit ka nakikialam. Itong kausap ko." 1 3 And as he cocked his gun and
walked towards the victim the latter even remarked, "Putang ina ka. Huwag kang
makikialam dito." 1 4 The circumstance that an attack was sudden and unexpected to the
person assaulted did not constitute the element of alevosia necessary to raise homicide to
murder, where it did not appear that the aggressor consciously adopted such mode of
attack to facilitate the perpetration of the killing without risk to himself. Treachery cannot
be appreciated if the accused did not make any preparation to kill the deceased in such
manner as to insure the commission of the killing or to make it impossible or di cult for
the person attacked to retaliate or defend himself. 1 5 When it does not appear that the
shooting was premeditated nor that the accused had consciously chosen a method of
attack directly and especially to facilitate the perpetration of the homicide without danger
to himself, and his decision to shoot the victim seemed to be so sudden and the position
of both the victim and the accused was entirely accidental, treachery cannot be imputed to
the appellant. 1 6 Moreover, there is no treachery when the killing resulted from a verbal
altercation between the victim and the assailant such that the victim must have been
forewarned of the impending danger. 1 7
We cannot appreciate the circumstance of passion and obfuscation invoked by
appellant to mitigate his criminal liability. The obfuscation must originate from lawful
feelings. 1 8 The turmoil and unreason which naturally result from a quarrel or ght should
not be confused with the sentiment or excitement in the mind of a person injured or
offended to such a degree as to deprive him of his sanity and self-control, because the
cause of this condition of mind must necessarily have preceded the commission of the
offense. 1 9 However, the voluntary surrender of accused-appellant to a police authority
four (4) days after the commission of the crime as found by the trial court may be
considered attenuating. 20
Under Art. 249 of the Revised Penal Code, homicide is punishable by reclusion
temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years.
Applying the Indeterminate Sentence Law and appreciating the mitigating circumstance of
voluntary surrender which is not offset by any aggravating circumstance, the maximum of
the penalty shall be taken from the minimum period of reclusion temporal, the range of
which is twelve (12) years and one (1) day to fourteen (14) years and eight (8) months,
while the minimum shall be taken from the penalty next lower in degree which is prision
mayor, in any of its periods, the range of which is six (6) years and one (1) day to twelve
(12) years.
WHEREFORE, the decision appealed from is MODIFIED and accused-appellant
WILFREDO BAUTISTA y NIELES is declared GUILTY of HOMICIDE, not murder, and
sentenced to an indeterminate prison term of six (6) years, four (4) months and ten (10)
days of prision mayor minimum as minimum, to twelve (12), years six (6) months and
twenty (20) days of reclusion temporal minimum as maximum. In view of the reservation
to file separate civil action, no civil indemnity is awarded.
SO ORDERED.
Padilla, Vitug and Kapunan JJ., concur.
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 Separate Opinions
HERMOSISIMA, JR. , J., concurring and dissenting :

With all due respect to the majority opinion, while I fully agree that the evidence on
record has su ciently established that accused-appellant Wilfredo Bautista is guilty
beyond reasonable doubt for the killing of the victim, Alfonso Davila, it is my opinion that
the killing was attended by the aggravating circumstance of treachery that should qualify
the crime committed from one of homicide that of murder.
In order that the aggravating circumstance of treachery can be appreciated, the
following requisites must concur:
(1) that, at the time of the attack, the victim was not in a position to defend
himself; and
(2) that the offender consciously adopted the particular means, method or
form of attack employed by him. 1

There is no dispute that as to the rst requisite, evidence on records has clearly
established that, at the time of the shooting, the victim was in no position to defend
himself. He was then busy arguing with the co-accused. Gayak Usman. Nowhere in the
record has it been shown that the victim was aware that accused-appellant will shoot him.
The altercation was between the victim and Usman and, if harm was to be expected, it
would have been expected to come from Usman and not from accused-appellant who was
a bystander during the incident. The victim was unarmed and the attack was sudden and
not at all expected.
The act of the accused-appellant in taking the shotgun from Usman cannot be taken
by the victim as an indication that he will be shot by the accused-appellant, since there was
clearly no warning from the accused-appellant. The attack was sudden. The accused-
appellant even went to the back of the victim's car where he cocked the gun before
approaching the victim in order to shoot. The manner of attack adopted by the accused-
appellant clearly established treachery. The acts of the accused-appellant upon
commencing the execution of his design to kill the deceased constitute treachery,
inasmuch as they attended to avoid every risk to himself arising from the defense which
the deceased might make. 2 The fact that an exchange of words preceded the assault
would not negate the treacherous character of the attack 3 since the alteration was
between the victim and Usman.
Anent the second requisite, that is, whether the accused-appellant consciously
adopted the particular means employed in the execution of his criminal act, was very well
established from the records. It was undisputed that the accused-appellant used a
shotgun and red at a close range, hitting the victim on the head which caused his
instantaneous death. By aiming at the victim, knowing fully well that the latter was
unarmed, intent to kill was clearly manifested. The victim was not only unarmed but was
also deprived of all means to defend himself from or evade the sudden and unexpected
assault. 4 This Court has held in the case of People vs. Lualhati 5 that there is treachery
where the victim was clearly not in any position to defend himself from the unreasonable
and unexpected attack of the accused.
WHEREFORE, in view of the foregoing, I vote for the a rmance in toto of the
decision appealed from.
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 Footnotes

1. Decision penned by Judge Alfredo J. Gustilo, RTC-Br. 116, Pasay City.

2. Rollo, p. 8.
3. TSN, 19 June 1992, p. 10; 3 July 1992, p. 650.
4. "Sir, why do you slap a security guard?" . . ."Why do you interfere? This is (the person) I
am talking to;" TSN, 3 July 1992, p. 2.
5. "Son of a whore. Do not interfere here;" Id., p. 11.
6. Records, p. 114.

7. Rollo, pp. 48-59.

8. People v. Boholst-Caballero, No. L-23249, 25 November 1974, 61 SCRA 180.
9. Rollo, p. 55.
10. People v. Galit, G.R. No. 97432, 1 March 1994, 230 SCRA 486.
11. Aquino, Ramon C., The Revised Penal Code, 1987 ed., Vol. I, p. 353.

12. People v. Ybañes, No. L-30421, 28 March 1974, 56 SCRA 210.

13. See Note 3.
14. See Note 4.
15. People v. Unay, 97 Phil. 969 (1955); People v. Namit, 38 Phil. 926 (1918).
16. People v. Abalos, 84 Phil. 771 (1949).
17. People v. Alacar, G.R. No. 64725-26, 20 July 1992, 211 SCRA 580.
18. People v. Silang Cruz, 53 Phil 635 (1929).
19. People v. Giner, 6 Phil 406 (1906).
20. People v. Yecla and Cahilig, 68 Phil. 740 (1939).
HERMOSISIMA, JR., J., concurring and dissenting
1. Reyes, Revised Penal Code, Book I, 1981 Edition, p. 420.
2. People vs. Parana, 64 Phil. 331.
3. People vs. Ricohermoso, 56 SCRA 431.
4. People vs. Mendoza, 236 SCRA 666.
5. 234 SCRA 325.

CD Technologies Asia, Inc. 2018 cdasiaonline.com