People of the Philippines vs. Alberto Dano y Jugilon

A killing is homicide, not murder, where treachery is not proved; an extrajudicial confession taken without counsel is inadmissible even if voluntary; and self-defense or defense of a relative, complete or incomplete, cannot be appreciated absent unlawful aggression.

Appellant Alberto Dano y Jugilon and the victim Emeterio Dano were brothers. The case implicated Article 248 of the Revised Penal Code on murder, Article 249 on homicide, and the constitutional rights of persons under custodial investigation, as well as the Revised Penal Code provisions on self-defense, defense of relatives, treachery, and mitigating circumstances.

On March 16, 1994, around 6:30 p.m., in Tiguian, Margosatubig, Zamboanga del Sur, Emeterio Dano, armed with a scythe, confronted his brother Alberto Dano at Alberto’s house. According to prosecution witness Wilfredo Tapian, he was resting at Neneng Miras’s house when Teresita Dano, Emeterio’s wife, arrived and asked for help, saying Emeterio had attacked Alberto in Alberto’s house. Wilfredo rushed to Alberto’s house about one hundred meters away. There he saw Emeterio pacing in the front yard, armed with a scythe, shouting at Alberto to come down so they could fight to the death, and striking the scythe on the ground. Wilfredo tried to pacify him; Alberto also told his younger brother to go home, but Emeterio refused. Emeterio suddenly leaped at Alberto, who was looking out the window, and slashed at him with the scythe but missed. Wilfredo left because he feared being hit.

Between 6:00 and 7:00 p.m. that same evening, Barangay Captain Demosthenes Peralta was informed by Wilfredo and Fernando Teves that the Dano brothers were quarreling. On his way to Alberto’s home, Peralta met Alberto, who told him he had killed Emeterio and voluntarily surrendered. Peralta left Alberto in Wilfredo’s house and proceeded to Alberto’s residence, where he saw Emeterio’s bloody corpse sprawled in the yard near the stairs, with several hacking and slashing wounds. Peralta fetched Alberto and took him to the police station. The next morning, Peralta fetched a doctor from Margosatubig town proper; the doctor examined the body still lying in Alberto’s yard. At the request of the police station commander, Peralta took photos of the corpse and later turned them over to the police. He also found a bloodstained scythe beneath Alberto’s house; its wooden handle had the name “Alberto Dano” carved on it, and he turned it over to the police. The necropsy report established acute blood loss secondary to multiple hacking wounds as the cause of death.

When interrogated by the police, Alberto, without assistance of counsel, admitted killing his brother. The admission was recorded in the police blotter and read into the records without objection by the defense. The entry stated that the subject admitted killing his younger brother because the latter was drunk and provoked him to a scythe duel downstairs of his house, prompting him to get his scythe and come down, allegedly box first his brother, and subsequently hack him several times. The victim’s widow, Teresita Dano, admitted that the scythe her late husband carried that day was returned to her by people in their barangay, and she did not turn it over to the police.

The defense presented Alberto and his spouse. Alberto claimed self-defense and defense of his family. He testified that around 6:30 p.m. on March 16, 1994, while his family was preparing to go to bed, he heard someone shout, “Boy, come down and we will fight to death.” He ignored it at first, but after it was repeated, he looked out the window and saw Emeterio outside, armed with a scythe. He told Emeterio to go home, but Emeterio, who appeared disturbed, did not heed him and kept hitting the ground with the scythe. Without provocation, Emeterio suddenly leaped at him and attacked him with the scythe, which he evaded. Emeterio then ascended the stairs and pushed open the bamboo door on the porch leading to the living room. Alberto’s wife and children screamed and cried in fear. Alberto held and twisted Emeterio’s wrist to disarm him; they grappled for the scythe on the porch and then tumbled down the stairs. When they hit the ground, Emeterio was dead. Alberto did not know how many times he hit his brother or how many wounds he inflicted; he said he was not in a normal state of mind. After seeing that he had killed his brother, he threw the scythe under his house and went to the barangay captain to surrender. His spouse largely corroborated the first part of the affray but said she did not see how the victim was killed because they were inside the house and she and the children had their eyes closed in shock and fear. Alberto denied owning the scythe found beneath his house and did not know why his name was engraved on its wooden handle, though he was sure it was the same scythe Emeterio carried during the incident. He explained a previous misunderstanding with Emeterio over the purchase of a horse from his cousin Doroteo Oliver on installment basis: Emeterio wanted to buy the horse, but Alberto bought it ahead of him, causing Emeterio to resent him.

The trial court disbelieved Alberto’s version. It found that despite the long scuffle over the scythe, which started from the porch and ended on the ground near the stairway, Alberto never sustained a single wound, not even a scratch or bruise, while Emeterio sustained twelve multiple hacking wounds all over his body. It also found that from the time Alberto gained control and possession of the scythe, Emeterio was already unarmed and there was no more danger to Alberto from him. These findings formed the basis for the trial court’s rejection of his defenses.

• Admissibility of Extrajudicial Confession: The accused-appellant argued that the trial court erred in giving weight to his admissions during custodial investigation (Exhibit “E”) because his constitutional and statutory right to counsel was violated when the police took his statements without a lawyer; he further maintained that the trial court should have declared the statements inadmissible when they were objected to during trial.
• Self-Defense and Defense of Relatives: The accused-appellant pleaded self-defense and/or defense of relatives, or at least incomplete self-defense and/or defense of relatives, and argued that the trial court erred in disregarding these defenses; he insisted that the killing and the victim’s attack were nearly simultaneous, without appreciable interval, and that even if the number of wounds negated complete self-defense, incomplete self-defense should have been appreciated because unlawful aggression and lack of sufficient provocation were present.
• Absence of Treachery: The accused-appellant submitted that the qualifying element of treachery was absent, relying on People vs. Butler and People vs. Maguddatu; he argued that treachery is not present where the accused and victim grappled with each other and cannot be appreciated where the killing was made on the spur of the moment.
• Evidentiary Objections and Witness Credibility: The accused-appellant argued that the trial court erred in stating that Exhibit “E” of the prosecution was not objected to by the defense, and in relying too much on Teresita Dano’s testimony that the scythe was owned by the accused and not by the victim.

• Self-Defense and Defense of Relatives: The Solicitor General countered that the defenses could not be appreciated because the victim was already unarmed when killed and there was no longer any danger to the life and limb of the accused or his family; unlawful aggression was absent at the time of the killing. He also argued that the accused was unscathed while he inflicted twelve hacking wounds on the victim, which belied his theory and revealed an intent to kill; because unlawful aggression was not proved, neither complete nor incomplete self-defense or defense of a relative could lie.
• Absence of Treachery: The Solicitor General agreed that treachery could not be appreciated because the evidence was bereft of any showing of the precise manner in which the killing was done, citing People vs. Timple; relying on People vs. Cedenio, he argued that treachery cannot be presumed but must be proved by evidence as convincing and conclusive as the killing itself, and concluded that the accused should only be convicted of homicide.

• Admissibility of Extrajudicial Confession: Whether the trial court erred in admitting the extrajudicial confession of the accused.
• Self-Defense and Defense of Relatives: Whether the trial court erred in failing to appreciate the accused’s defense of self-defense and/or defense of relatives, or at least incomplete self-defense and/or defense of relatives.
• Treachery and Classification of the Offense: Whether the trial court erred in convicting the accused of murder qualified by treachery and imposing the penalty therefor.
• Mitigating Circumstances and Penalty: Whether the trial court erred in failing to appreciate the mitigating circumstances of sufficient provocation or threat on the part of the offended party immediately preceding the killing and voluntary surrender to a person in authority, and in imposing the penalty accordingly.

• Admissibility of Extrajudicial Confession: Yes. The trial court erred in relying on the police-blotter entry as an extrajudicial confession; it was taken without counsel and was not formally offered, rendering it inadmissible. The conviction, however, did not rest solely on that confession because the accused’s admission to the barangay captain was not covered by custodial-investigation requirements.
• Self-Defense and Defense of Relatives: No. Neither complete nor incomplete self-defense or defense of a relative can be appreciated absent unlawful aggression; the victim had been disarmed before the killing, so there was no unlawful aggression at the time of the killing.
• Treachery and Classification of the Offense: Yes. Treachery was not proved, as there was no showing that the accused deliberately adopted the means of attack and the victim had provoked and attacked him; the offense is homicide, not murder, under Article 249 of the Revised Penal Code.
• Mitigating Circumstances and Penalty: Yes. The trial court failed to appreciate sufficient provocation or threat immediately preceding the killing and voluntary surrender to a person in authority; with two mitigating circumstances and no aggravating circumstance, the penalty next lower to reclusion temporal is prision mayor, and the Indeterminate Sentence Law applies.

• Admissibility of Extrajudicial Confession: The Constitution guarantees a person under investigation the right to remain silent, to have competent and independent counsel of his own choice or to be provided one, and to be informed of these rights; these rights cannot be waived except in writing and in the presence of counsel. A confession must be voluntary, made with assistance of competent and independent counsel, express, and in writing. The trial court relied on a police-blotter entry containing the accused’s admission, but the records did not show that he was assisted by counsel during custodial investigation. A suspect’s confession, whether verbal or non-verbal, taken without counsel and without a valid waiver, is inadmissible regardless of the absence of coercion or voluntariness. The presumption that official duty was regularly performed cannot prevail over positive averments of constitutional violations. Moreover, the police-blotter entry was not formally offered in evidence, and evidence not formally offered cannot be considered by courts. The trial court thus erred in relying on it. Nevertheless, the accused admitted the killing to the barangay captain, who is neither a police officer nor a law enforcement agent; such a spontaneous admission, even without counsel, does not violate custodial-investigation rights because the Constitution proscribes compulsory or coercive disclosure of incriminating facts.
• Self-Defense and Defense of Relatives: When an accused invokes self-defense, the burden shifts to him to prove the killing was justified. For self-defense, the elements are unlawful aggression on the part of the victim, reasonable necessity of the means employed to prevent or repel it, and lack of sufficient provocation on the part of the person defending himself. For defense of a relative, the requisites are unlawful aggression by the victim, reasonable necessity of the means employed, and, if the provocation was given by the person attacked, that the person making the defense took no part therein. Unlawful aggression is indispensable; it must be a positively strong act of real aggression, an actual, sudden, and unexpected attack or imminent danger thereof, not a mere threat or intimidating stance. The trial court found that the accused disarmed the victim before the killing and that, despite the alleged life-and-death struggle, the accused sustained no wound, scratch, or bruise while the victim suffered twelve hacking wounds, some at his back. These findings negated clear and convincing evidence of unlawful aggression at the time of the killing. When unlawful aggression that had begun earlier no longer exists, the person making the defense has no right to kill or even wound the former aggressor. Absent unlawful aggression, neither complete nor incomplete self-defense or defense of a relative can be appreciated.
• Treachery and Classification of the Offense: Treachery occurs when the accused employs means, methods, or forms in the execution of the crime without risk to himself arising from the defense the offended party might make. For treachery to be appreciated, it must be proved that (1) the means of execution gave the person assaulted no opportunity to defend himself or retaliate, and (2) the assailant deliberately or consciously adopted such means. The prosecution failed to show that the accused deliberately adopted the means of attack. Initially, the deceased committed unlawful aggression; the accused defended himself, grabbed the victim’s weapon, disarmed him, and killed him. The circumstances showed that the accused did not have the luxury of time to deliberate and contemplate the manner or method of killing. The deceased had also deliberately provoked and attacked the accused, and for treachery to be appreciated there must not be even the slightest provocation on the part of the victim. Absent treachery, the killing is not murder but homicide under Article 249 of the Revised Penal Code.
• Mitigating Circumstances and Penalty: The trial court failed to appreciate two mitigating circumstances: sufficient provocation or threat on the part of the offended party immediately preceding the killing, and voluntary surrender to a person in authority or his agents. The record showed that the accused surrendered to the barangay captain of Tiguian after the incident, and a barangay leader is a person in authority under Article 152 of the Revised Penal Code. The penalty for homicide is reclusion temporal. Where there are two mitigating circumstances and no aggravating circumstances, the court shall impose the penalty next lower to that prescribed by law in the period it may deem applicable. The penalty next lower is prision mayor. Applying the Indeterminate Sentence Law, the maximum penalty is taken from the medium period of the imposable penalty, prision mayor, while the minimum is taken from the penalty next lower in degree, prision correcional in any of its periods. Prision mayor in its medium period is eight years and one day to ten years; prision correcional in its maximum period is four years, two months, and one day to six years. The Court accordingly imposed an indeterminate term of four years, two months, and one day of prision correcional as minimum to eight years and twenty days of prision mayor as maximum.

• Custodial Investigation Rights and Uncounselled Confessions — Under Article III, Section 12(1) of the 1987 Constitution, a person under investigation has the right to remain silent, to competent and independent counsel of his own choice or to be provided one, and to be informed of these rights; these rights cannot be waived except in writing and in the presence of counsel. A confession must be voluntary, made with assistance of competent and independent counsel, express, and in writing. A suspect’s confession, whether verbal or non-verbal, taken without counsel and without a valid waiver, is inadmissible regardless of the absence of coercion or voluntariness. The Court applied this rule to reject the trial court’s reliance on the police-blotter entry containing the accused’s uncounselled admission.
• Admissions to Non-Law-Enforcement Officers — The constitutional requirements on custodial investigation do not apply to spontaneous statements voluntarily made to a person who is not a police officer or law enforcement agent. The Court applied this to the accused’s admission to the barangay captain that he had killed his brother, holding that it did not violate his custodial-investigation rights because the Constitution proscribes compulsory or coercive disclosure of incriminating facts.
• Self-Defense and Defense of Relatives — For self-defense, the accused must prove unlawful aggression on the part of the victim, reasonable necessity of the means employed to prevent or repel it, and lack of sufficient provocation on his part. For defense of a relative, the requisites are unlawful aggression by the victim, reasonable necessity of the means employed, and, if the provocation was given by the person attacked, that the person making the defense took no part therein. Unlawful aggression is indispensable and must be an actual, sudden, and unexpected attack or imminent danger thereof, not a mere threat or intimidating stance. The Court applied this to deny both complete and incomplete self-defense and defense of a relative because the victim had been disarmed before the killing.
• Cessation of Unlawful Aggression — When unlawful aggression that has begun earlier no longer exists, the person making the defense has no right to kill or even wound the former aggressor. The Court applied this because the accused had already disarmed the victim before killing him, so there was no longer any real peril to the accused or his family.
• Treachery — Treachery occurs when the accused employs means, methods, or forms in the execution of the crime without risk to himself arising from the defense the offended party might make. Its requisites are: (1) the employment of means of execution that give the person assaulted no opportunity to defend himself or retaliate; and (2) the deliberate or conscious adoption of such means by the assailant. Treachery cannot be presumed and must be proved as convincingly as the killing itself. The Court applied this to hold that treachery was absent because the accused did not deliberately adopt the means of attack, the victim had provoked and attacked him, and the accused had no time to deliberate on the manner of killing.
• Mitigating Circumstances of Sufficient Provocation or Threat and Voluntary Surrender — Sufficient provocation or threat on the part of the offended party immediately preceding the killing, and voluntary surrender to a person in authority or his agents, are mitigating circumstances. A barangay captain is a person in authority under Article 152 of the Revised Penal Code. The Court applied both mitigating circumstances in favor of the accused, reducing the penalty for homicide.
• Penalty with Two Mitigating Circumstances and No Aggravating Circumstance — Under Article 64(5) of the Revised Penal Code, when two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law in the period it may deem applicable. The Court applied this to impose prision mayor as the next lower penalty to reclusion temporal for homicide.
• Indeterminate Sentence Law — Under the Indeterminate Sentence Law, the maximum penalty is taken from the medium period of the imposable penalty, while the minimum is taken from the penalty next lower in degree. The Court applied this to fix the minimum at prision correcional and the maximum at prision mayor.
• Evidence Not Formally Offered — Evidence not formally offered cannot be considered by courts. The Court applied this to the police-blotter entry, which the prosecution failed to offer in evidence.
• Presumption of Regular Performance of Official Duty — The presumption that official duty has been regularly performed cannot by itself prevail over positive averments concerning violations of the constitutional rights of an accused. The Court applied this to reject the trial court’s reliance on the presumption in admitting the police-blotter entry.

• “A suspect’s confession, whether verbal or non-verbal, when taken without the assistance of counsel without a valid waiver of such assistance regardless of the absence of coercion or the fact that it had been voluntarily given, is inadmissible in evidence, even if appellant’s confession were gospel truth.” — This passage states the Court’s ratio on the inadmissibility of the police-blotter admission, holding that the absence of counsel and a valid waiver is fatal regardless of voluntariness.
• “For self-defense or defense of a relative, whether complete or incomplete, to be appreciated, the element of unlawful aggression is indispensable.” — This is the controlling rule that defeated the accused’s self-defense and defense-of-relative claims after the trial court found he had disarmed the victim before killing him.
• “For treachery to be appreciated, the following must be proven: (1) the employment of means of execution which give the person assaulted no opportunity to defend himself or retaliate; and (2) the deliberate or conscious adoption of such means adopted by the assailant.” — This excerpt supplies the canonical requisites of treachery, which the Court found unproved, thereby reducing murder to homicide.
• “The constitutional requirements on custodial investigation do not apply to spontaneous statements made in a voluntary manner whereby appellant orally admitted authorship of the crime.” — This passage explains why the accused’s admission to the barangay captain was not excluded despite the inadmissibility of his police-blotter confession.

• People vs. Gallardo, G.R. No. 113684, January 25, 2000 — Cited for the requirements of a valid confession: voluntary, with assistance of competent and independent counsel, express, and in writing.
• People vs. Agustin, 240 SCRA 541, 556-557 (1995) — Cited for the rule that a confession taken without counsel and without a valid waiver is inadmissible.
• People vs. Bonola, 274 SCRA 238, 249 (1997) — Cited for the same rule on the inadmissibility of uncounselled confessions.
• People vs. Andan, 269 SCRA 95, 109-110 (1997) — Cited for the rule that an admission made to a barangay captain, who is not a police officer or law enforcement agent, is not covered by custodial-investigation requirements.
• Aballe vs. People, 183 SCRA 196, 205 (1990) — Cited for the rule that custodial-investigation requirements do not apply to spontaneous statements voluntarily admitting authorship of the crime.
• People vs. Dela Cruz, G.R. No. 130608, August 26, 1999 — Cited for the elements of self-defense.
• People vs. Bausing, 199 SCRA 355, 361 (1991) — Cited for the requisites of defense of a relative.
• De Luna vs. Court of Appeals, 244 SCRA 758, 763 (1995) — Cited for the rule that unlawful aggression is indispensable for self-defense or defense of a relative, complete or incomplete.
• People vs. Cawaling, 293 SCRA 267 (1998) and People vs. Sambulan, 289 SCRA 500, 513 (1998) — Cited for the rule that when unlawful aggression no longer exists, the defender has no right to kill or wound the former aggressor.
• People vs. Butler, 120 SCRA 281 (1983) — Relied upon by the accused for the argument that treachery is not present where the accused and victim grappled with each other.
• People vs. Maguddatu, 124 SCRA 594 (1983) — Relied upon by the accused for the argument that treachery cannot be appreciated where the killing was made on the spur of the moment.
• People vs. Timple, 237 SCRA 52 (1994) — Cited by the Solicitor General for the point that treachery cannot be appreciated where the evidence does not show the precise manner in which the killing was done.
• People vs. Cedenio, 233 SCRA 356 (1994) — Cited by the Solicitor General for the rule that treachery cannot be presumed but must be proved by evidence as convincing and conclusive as the killing itself.
• People vs. Sesbreño, G.R. No. 121764, September 9, 1999 — Cited for the requisites of treachery and the rule that there must be no provocation on the part of the victim.
• People vs. Peralta, 237 SCRA 218, 226 (1994) — Cited for the rule that evidence not formally offered cannot be considered by courts.
• People vs. Doria, et al., 301 SCRA 668, 698 (1999) — Cited for the rule that the presumption of regular performance of official duty cannot prevail over positive averments of constitutional violations.
• People vs. Tulop, 289 SCRA 316, 326 (1998) — Cited for appellate respect for factual findings of trial courts.
• People vs. Mendoza, G.R. No. 133382, March 9, 2000 — Cited for the rule that absent unlawful aggression, there can be no self-defense or defense of a relative, complete or incomplete.
• People vs. Galido, G.R. No. 128883, February 22, 2000 — Cited for the definition of treachery.

• Article III, Section 12(1), 1987 Constitution — Guarantees a person under investigation the right to remain silent, to competent and independent counsel of his own choice or to be provided one, and to be informed of these rights; these rights cannot be waived except in writing and in the presence of counsel. Applied to the police interrogation of the accused, which occurred without counsel and without a valid waiver.
• Article III, Section 12(3), 1987 Constitution — Provides that any confession or admission obtained in violation of the constitutional rights of a person under investigation is inadmissible. Applied to the police-blotter entry containing the accused’s uncounselled admission.
• Article 248, Revised Penal Code — Defines and penalizes murder. The trial court convicted the accused under this provision, but the Supreme Court held that the qualifying circumstance of treachery was not proved.
• Article 249, Revised Penal Code — Defines homicide as killing another without any of the circumstances enumerated in the preceding article, punishable by reclusion temporal. Applied because treachery was absent, making the accused guilty of homicide only.
• Article 152, Revised Penal Code — Defines persons in authority. Applied to hold that the barangay captain to whom the accused surrendered is a person in authority, supporting the mitigating circumstance of voluntary surrender.
• Article 64(5), Revised Penal Code — Provides that when two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law in the period it may deem applicable. Applied to reduce the penalty for homicide to prision mayor.
• Rule 131, Section 3(m), Rules of Court — Establishes the presumption that official duty has been regularly performed. The Court held that this presumption cannot by itself prevail over positive averments of constitutional violations.
• Rule 132, Section 34, Rules of Court — Provides that evidence not formally offered cannot be considered by courts. Applied to the police-blotter entry, which the prosecution failed to offer in evidence.
• Indeterminate Sentence Law — Applied to fix the minimum and maximum terms of the indeterminate penalty after the penalty next lower to reclusion temporal was determined.

Bellosillo (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.