Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-30956 November 23, 1971

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FLORENCIO ORDIALES, defendant-appellant.

Office of the Solicitor General for plaintiff-appellee.

N. Cruz Jr. for defendant-appellant.

REYES, J.B.L., J.:

Direct appeal to this Court in view of the capital punishment imposed against
accused-appellant, Florencio Ordiales, by the Court of First Instance of Rizal,
Branch VII Pasay City, in its Criminal Case No. 8114-P. The dispositive position of
the said court's decision follows:

WHEREFORE, this Court after having thus consider very carefully the evidence of the
prosecution and the defense, both testimonial and documentary, and the exhaustive
Memorandum of the Defense, finds accused FLORENCIO ORDIALES guilty beyond
reasonable doubt of the crime of murder, punishable under Art. 248 of the Revised
Penal Code, committed with the aggravating and the mitigating circumstances above
mentioned and hereby sentences him to suffer the penalty of death in the manner
provided by law, to indemnify the heirs of deceased Vicente Bayona in the amount of
TWELVE THOUSAND PESOS (P12,000.00) and to pay the costs.

The Amended Information charged accused-appellant Florencio Ordiales of the crime

of murder committed as follows:

That on or about the 4th day of November, 1968, in Pasay City, Philippines, and
within the jurisdiction of this Honorable Court, the abovenamed accused, Florencio
Ordiales y Abaro, being then a Confidential Agent of the City Mayor, Pasay City,
duly appointed and qualified as such, taking advantage of his public position, with
deliberate intent to kill, and with evident premeditation, and treachery
aforethought suddenly and unexpectedly, did then and there wilfully, unlawfully and
feloniously attack, assault and shoot for several times on the vital parts of the
body, unarmed, Vicente Bayona, with a carbine the herein accused was then provided
with, which treacherous acts, tended to directly and specially insure its
execution, without risk to himself, from the defense that Vicente Bayona may make,
thereby inflicting upon the latter several mortal wounds, which caused his
instantaneous death.

That at the time of the commission of this offense the accused-Florencio Ordiales y
Abaro was provided with a motor vehicle, while he took advantage of, to facilitate
his escape from the scene of the crime.

All contrary to law, with qualifying circumstance of alevosia, and the aggravating
circumstances of (1) his public position (2) evident premeditation, and (3) the use
of a motor vehicle.
The evidence for the prosecution shows that on 4 November 1968, at 5:30 in the
afternoon, Vicente Bayona, with two companions, Daniel Brown Jr., and Rolando Cruz,
were at the air-conditioned room of Nad's restaurant, Libertad Street, Pasay City.
While they were starting to drink pepsi-cola and gin, accused-appellant Florencio
Ordiales entered, asking Vicente Bayona, "Sino ba ang minumura mo?" immediately
firing at the latter a U.S. carbine, caliber .30, in rapid succession. The victim
was unable to answer because he was hit. Accused-appellant then put down his
firearm to look at Bayona, after which he left the restaurant and boarded a yellow
jeep parked outside. Two other persons were in the said jeep by the names of Bayani
and Magsakay.

Daniel Brown, Jr., ran away after the first shot, while the victim's other
companion, Rolando Cruz, was literally frozen with fear in his seat. Vicente Bayona
died of multiple gunshot wounds at 6:10 that same afternoon upon arrival at San
Juan de Dios Hospital, Pasay City. 1 The assailant shot him at a distance of two
and a half (2 � yards), more or less. 2 The slaying is admitted by the accused.

The defense's own version of the incident was that accused- appellant saw Lt.
Delfin Hernandez at the lobby of the Pasay City Hall in the morning of 4 November
1968. The former asked the latter if he could have, his carbin M-1 converted to an
automatic one or M-2. Since the accused-appellant did not have the carbine with him
at the time, they agreed to meet at Nad's restaurant at 5:30 that afternoon so he
could deliver the carbine.

At past five of the said afternoon, accused-appellant went to the Nad's restaurant
to keep the appointment. While accused-appellant was looking for a place to sit in
the air-conditioned room, Vicente Bayona whistled at him, motioning him to come
near. As soon as accused-appellant approached Bayona, the latter said, "Tell the
mayor the next year he will lose." Accused-appellant answered, "Huwag naman ganon.
Bakit hindi kayo magkasundo. Dati kayo magkasama." Vicente Bayona, however, shouted
"Bastat sabihin mo talo na siya sa isang taon!" Accused-appellant shouted back,
saying, "Why don't you tell him? You are sending me to tell him!"

Vicente Bayona suddenly stood up with hands on waist and was able to approach
accused-appellant, holding the barrel of the latter's carbine. The victim's two
companion also rushed at accused-appellant whereupon, the latter stepped backward
and fired at Bayona. The said companion ran away after Bayona was fired upon.

Accused-appellant left the restaurant after Bayona fell and took a taxi at Taft
Avenue near Pasay Commercial Center with the intention of surrendering to the
mayor. In the corner of Malibay, accused appellant met Francisco Villa (who was
going to be appointed Chief of Police Pasay City later), so he stopped and told him
that he shoot somebody and that he was going to surrender. Villa, however, advised
him to surrender instead to the NBI. Accused-appellant, accompanied by Mr. Villa,
then proceeded to Bankal to see NBI agent Mr. Aragon. Mr. Aragon, who arrived in
his house later was told what happened. He, in turn, accompanied accused-appellant
to the NBI where the latter surrendered to one Mr. Bayani with the carbine used in
the shooting.

The Court a quo found the aggravating circumstances of (a) abuse of official
position, (b) evident premeditation, and (c) use of superior force. However, it
considered the use of superior force as absorbed by the qualifying circumstance of
treachery. The said court also found the mitigating circumstance of voluntary
surrender, offsetting one of the two remaining aggravating circumstances. Hence,
the death penalty was imposed. The use of motor vehicle which was likewise alleged
in the Amended Information was not appreciated by the court a quo for the reason
that the jeep was not used as a means to commit the murder.
The following are assigned as errors in accused-appellant's brief: The lower court
erred in �

1. Convicting accused-appellant of the crime of murder qualified by treachery;

2. Giving full credence to the testimonies of the witnesses for the prosecution
which are full of serious and material contradictions, inconsistencies and
manifestly false assertions;

3. Sentencing accused-appellant to suffer the penalty of death;

4. Finding that the aggravating circumstances of (1) abuse of official position and
(2) evident premeditation are present in the commission of the offense;

5. Not acquitting accused-appellant of the crime charged on the ground of self-

defense; and

6. Not acquitting accused-appellant on the ground of reasonable doubt.

There is nothing on record to warrant a reversal of the court a quo's finding that
treachery attended the killing of the deceased. The sudden and unexpected shooting
of the victim with a carbine constituted treachery. Authorities are clear that even
when an attack or aggression is made face to face, treachery or alevosia is
nevertheless present when the attack is sudden and unexpected to the point of
incapacitating the victim to repel or escape it. 3 Accused-appellant's account as
to what precipitated the shooting could not be believed. The statement, "Tell the
mayor that next year he will lose," or "Basta sabihin mo talo siya sa isang taon",
could not be attributed to the deceased who, being an avid campaigner of local
mayoralty candidates, at least from Mayor Cuneta's time up to the election of Mayor
Jovito Claudio, certainly could not have ignored that 1969 was not a mayoralty
election year. On the other hand, it is admitted by the prosecution that the
deceased and his twin brother, Reynaldo, had repeatedly slandered the incumbent
mayor, since the latter disregarded the promise to make Reynaldo the chief of his
confidential agent stating that the promise was merely a joke. In fact, on the
afternoon before the shooting and when the brother met at Shanghai restaurant,
Pasay City, the victim told Reynaldo that he slandered the mayor again because the
mayor refused to sign something which the victim asked him to sign. The version of
the prosecution that it was accused-appellant who first confronted the victim with,
" Sino ba ang minumura mo?" becomes more believable in the light of what happened,
and specially since it is not disputed that accused-appellant was present at least
in one of those occasions when the mayor was slandered. Defense witness Pedrito
Caballes impliedly so admitted by quoting Vicente Bayona as saying to accused-
appellant before he was shot "huwag mo akong pakialaman." Finally, prosecution
witnesses Daniel Brown, Jr., and Rolando Cruz corroborated each other in quoting
accused-appellant as having said "Sino ba ang minumura mo?" as against the lone
denial of accused-appellant.

It is true that the deceased had two companions while accused-appellant was alone,
but superiority in number do not necessarily mean superiority in strength. 4 These
three men were all seated and unarmed, and their movement was impeded by the table
at which they sat. Their positions even gave accused-appellant more advantage
especially since he carried two firearms, a carbine and a revolver. However, as
correctly held by the lower court, abuse of superior strength is absorbed in
treachery and is inherent in the same. 5

It is accused-appellant's contention, and error was assigned in this regard, that

the testimonies of the prosecution witnesses should not be given full credence
because of alleged serious and material contradictions, inconsistencies and
manifestly false assertions. Our review of the evidence demonstrates that the
contractions were not on material points. The rule is settled in this jurisdiction
that appellate courts seldom disturb a trial court's appreciation of the
credibility of witnesses, in view of its opportunity to observe the demeanor and
conduct of the witnesses while testifying on the witness stand; and that said
appreciation of the court below will generally be accepted and acted upon favorably
by the appellate courts, unless there is a material circumstance which consequently
might affect the result of the case. 6 As already noted earlier, the exeption does
not obtain this case, hence, the finding of treachery is sustained.

We come next to the question of whether the aggravating circumstances of abuse of

public position and evident premeditation really attended the commission of the
crime as found by the court a quo. For abuse of public position under Article 14,
paragraph 1, Revised Penal Code, 7 to be appreciated, it is not only necessary that
the person committing the crime be a public official; he must also use the
influence, prestige or ascendency which such office gives him as a means by which
he realized his purpose. The essence of the matter is presented in the inquiry,
"Did the accused abuse his office in order to commit the crime?" 8 It is not shown
that accused-appellant took advantage of his position as confidential agent of
Mayor Claudio in shooting the victim, or that he used his "influence, prestige or
ascendency" in killing the deceased. Accused-appellant could have shot by Bayona
without having finding occupied the said position. Thus, in the absence proof that
advantage was taken by accused-appellant his being a confidential agent, the
aggravating circumstance of abuse of public position could not be properly
appreciated against him. The Solicitor General also concedes this. 9 The court a
quo's finding that the said aggravating circumstance is present can not, therefore,
be sustained.

The aggravating circumstance of evident premeditation has not likewise been proven
beyond reasonable doubt. The mere fact that accused-appellant killed Bayona does
not necessarily prove in itself that the former hatched a plan to kill the latter.
As there was no direct evidence of the planning or preparation, the court's
conclusion may not be endorsed, since it is not enough that premeditation be
suspected or surmised, but the criminal intent must be evidenced by notorious
outward acts evincing the determination to commit the crime. 10 Much less is there
a showing of opportunity for reflection and the persistence in the criminal intent
that characterize the aggravating circumstance of evident premeditation. 11 The
court a quo therefore erred in appreciating the said aggravating circumstance
against accused-appellant. The Solicitor General likewise concedes this finding. 12

As regards the plea of self-defense under Article 11, paragraph 1, of the Revised
Penal Code, the rule is that the same must be proved by clear and convincing
evidence. 13 The three concurring requisites should be present, namely, (a)
unlawful aggression on the part of the victim; (b) reasonable necessity of the
means employed to repel the aggression; and (c) lack of sufficient provocation on
the part of the accused. 14

We find no proof of unlawful aggression, on the part of the victim. He was seated
and unarmed. This Court finds it hard to believe that he suddenly stood up with
hands at his waist, which allegedly led accused-appellant to think that the former
would draw a gun. The victim, fully aware that he was not armed, and knowing that
his adversary carried a carbine, would not bluff at so great a risk. We find it
still harder to believe that the victim arose and approached or rushed at accused-
appellant, and suddenly held the barrel of the latter's carbine without first being
shot at, for the reasons that (a) a table obstructed his way; 15 (b) accused-
appellant was at least 2 � yards away from the victim, 16 which distance could not
have been easily and quickly traversed from where the alleged aggressor was seated,
considering the obstruction; and (c) according to his own version, accused-
appellant already warned that he would shot if the victim approached him. It would
have been foolhardy and suicidal for the victim to act in the manner that accused-
appellant would like this Court to believe, knowing that the accused-appellant was
poised to shoot if the victim should make a move to approach him, and this holds
likewise of the victim's companions, who were not themselves armed. Yet, accused-
appellant would like Us to believe that he shot the victim only after the latter
held the barrel of the gun and only after he had first stepped backward. The
statement of Daniel Brown, Jr., 17 that the victim fell from his seat to the cement
floor like "a burning candle", belies further the claim of accused-appellant that
the deceased was shot only after he approached accused-appellant. Under the
circumstances, accused-appellant's plea of self-defense can not be sustained, since
he was himself the aggressor.

We are convinced that the guilt of accused-appellant has been proven beyond
reasonable doubt. However, the death penalty should be reduced in the absence of
the aggravating circumstances of abuse of public position and evident pre-
meditation which were erroneously found by the court a quo.

Under Article 248 of the Revised Penal Code, 18 the penalty for murder is reclusion
temporal in its maximum period to death. There being only one mitigating
circumstance, that of voluntary surrender, and no aggravating circumstance to
offset the same, the imposable penalty is the minimum pursuant to Article 64,
paragraph 2, of the same Code, which is the maximum period of reclusion temporal
under Article 248, supra. The Indeterminate Sentence Law (Act 4103, as amended by
Act 4225) applies in view of the nature of the penalty. Under this law, the
judgment sentencing the accused to a prison term provides for a minimum within the
range of the penalty next lower in degree to be fixed in any of its periods in the
discretion of the court. 19 Under Article 61, paragraph 3, of the Revised Penal
Code when the penalty prescribed for the crime is composed of one or two
indivisible penalties and the maximum period of another divisible penalty, as in
this case, the penalty next lower in degree shall be composed of the medium and
minimum periods of the proper divisible penalty and the maximum of that immediately
following in said respective scale. The penalty next lower in degree in the instant
case therefore ranges from the maximum of prision mayor to the medium degree of
reclusion temporal.

FOR THE FOREGOING REASONS, the decision appealed from is accordingly modified,
sentencing accused-appellant to suffer an imprisonment of 14 years, 8 months and 1
day of reclusion temporal as minimum to 20 years of reclusion temporal as maximum.
Said decision is affirmed in all other respects. Costs against appellant.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo,

Villamor and Makasiar, JJ., concur.

Footnotes

1 See the Certificate of Post-Mortem Examination, Exhibit "O-1", dated 5 November

1968, and the Necropsy Report, Exhibit "L", dated 19 November 1968, both of the
NBI.

2 See Exhibit "A", Statement of Daniel Brown, Jr., dated 5 November 1968, page 198,
Rollo.

3 See People vs. Noble, 77 Phil. 93; People vs. Pulido, et al., L-2447, 4 March
1950; People vs. Martinez Godinez, 106 Ph 597.

4 See People vs. Elizaga, L-2487, 18 May 1950, 86 Phil. 364.

5 People vs. Redo�a 87 Phil. 743; People vs. Agustin, et al., L-18368, 31 March
1966, 16 SCRA 467, citing People vs. Tiongson, L-1866-67, 28 SCRA 1964.

6 People vs. Braganio et al., L-10121, 29 December 1960, citing People vs. Pinsol,
et al., L-8349, 22 January 1957.

7 Art. 14, par. 1, of the Revised Penal Code, states:

"Art. 14. Aggravating circumstances. � The following are aggravating circumstances:

1. That advantage be taken by the offender of his public position."

8 US vs. Rodriguez, 19 Phil. 150, cited in Padilla's Revised Penal Code Annotated,
Book One, page 296, 1964. ed.

9 Page 19, Brief for the Appellee. Thus in the case of Montilla vs. Judge Hilario,
90 Phil. 49, also a murder by a public officer, the Supreme Court ruled (at page
52)

"By the same token, the fact that, as alleged, the defendant made use of firearms
which they were authorized carry or possess by reason of their positions, could not
supply the required connection between the office and the crime. Firearms however
and wherever obtained are not an ingridient of murder or homicide. The crime in
question, for example, could have been committed by the defendants the same or like
manner and with the same ease if they had been private individuals and fired with
unlicensed weapons." See also People vs. Pantoja, 25 SCRA 468.

10 People vs. Mendoza, et al., L-7030, 31 January 1957, 100 Phil. 811.

11 People vs. Custodio et al., L-27442, 24 October 1955, and other cases cited. See
also People vs. Cadag, L-18830, 31 May 1961.

12 Pages 18-19, Brief for the Appellee.

13 People vs. Berio, 59 Phil. 533.

14 See People vs. Balansag, 60 Phil. 266 and Art. 11, par. 1, Revised Penal Code,
supra.

15 Exhibit "Q-1" page 230, Rollo.

16 Exhibit "A", supra.

17 Exhibit "A", supra.

18 Article 248 of the Revised Penal Code.

19 People vs. Ducosin 5 Phil. 109, cited in Padilla's Revised Penal Code Annotated,
Book One, page 672, 1964 ed.

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