On appeal is the decision^[1] dated August 16, 1996, of the Regional Trial Court of Bambang, Nueva Vizcaya, Branch 30, finding appellant guilty beyond reasonable doubt of the crime of murder and sentenced him to reclusion perpetua. The dispositive portion of the decision reads:

"WHEREFORE, finding the accused, Sergio Briones y Silapan @ Soreto, guilty beyond reasonable doubt of the crime of Murder, he is hereby sentenced to suffer the penalty of RECLUSION PERPETUA and to pay the heirs of the victim, the amount of P42,000.00 as death indemnity, P10,000.00 for actual expenses, P50,000.00 as moral damages.

The accused having voluntarily agreed in writing to abide by the same disciplinary rules imposed upon convicted persons during his preventive imprisonment, the same shall be credited in the service of his sentence.

The Provincial Warden is likewise directed to cause the immediate transfer of the accused from the Provincial Jail to the National Penitentiary.

SO ORDERED." ^[2]

Acting Second Assistant Provincial Fiscal of Bayombong, Nueva Vizcaya, Albert G. Castillo, had charged appellant in an Information that reads:

"That on or about 7:30 o'clock in the night of May 27, 1983, at Barangay Comon, Municipality of Aritao, Province of Nueva Vizcaya, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Sergio Briones y Silapan @ Loreto, who was then armed with a sharp-bladed weapon, did then and there wilfully, unlawfully and feloniously, by means of treachery, with abuse of confidence or obvious ungratefulness and with evident premeditation, with intent to kill, attack, assault and use personal violence upon the person of Eduardo Briones y Collado, by then and there hitting, stabbing and hacking him on different parts of his body, thereby inflicting upon him fatal stab wounds which were the direct and immediate cause of his death thereafter.

CONTRARY TO LAW. "^[3]

On December 11, 1984, appellant was arraigned. He pleaded not guilty.

During trial, prosecution presented two eyewitnesses, the spouses Clemente and Aurelia Agne, the owners of the house where the incident happened; Loida Briones, the widow of Eduardo who testified on the civil aspect of the case; Dr. Pepito Bulgos, the medico legal officer, who testified on the cause of Eduardo's death; and Timoteo Aleman,^[4] the police officer who conducted the investigation of accused-appellant.

The defense presented its lone witness, the appellant who admitted hacking the victim but invoked self-defense.

Eyewitness Clemente Agne testified that appellant Sergio Briones is an uncle of the victim. On May 27, 1983, at around 6:00 o'clock p.m., Clemente was in his house with his wife and children, when appellant arrived. Sergio and Clemente drank a bottle of gin. Afterwards, Eduardo, their nephew, joined them. In the course of their conversation, Sergio mentioned that he hated Sonny, brother of Eduardo.^[5] Eduardo made a comment which angered Sergio who accused Eduardo of disrespect towards elders. Eduardo sat in silence, while Sergio fuming mad, threatened to box Eduardo. Sergio left for home which was twenty meters from Clemente's house. The Agne family started to eat dinner. Eduardo did not join them but remained seated on a chair near the open door, with left leg raised, his left side towards the door while facing the Agne family at a distance of 2 1/2 meters. While eating, Clemente heard a sound, glanced sidewards to the door and saw Sergio pulling out a bolo from Eduardo's abdomen. Thereafter, at the blink of an eye, Sergio hacked Eduardo on the left portion of his head with the bolo. Sergio ran away, while Eduardo went to the house of councilman Bernardo Briones, another uncle, for succor. Eduardo did not survive the fatal blows.^[6]

Aurelia Briones Agne, wife of Clemente and younger sister of appellant, as well as the aunt of the victim, corroborated Clemente's testimony on all material points. She added that while they were dining, she suddenly heard a sound like "tsuk tsuk" coming from where Eduardo was. Upon looking at Eduardo, she screamed when she saw Sergio with a bolo hacking Eduardo who was still sitted with his left leg raised. She saw Eduardo hit on his abdomen and on the left of his head. Immediately, Sergio and Eduardo ran away.^[7]

Loida Briones testified that her husband died on May 27,1983 due to wounds caused by stabbing and hacking; that the death caused untoward reverses in all aspects of her life, particularly, physical and psychological; that she incurred expenses for the wake and interment of her husband in the amount of P8,548.00; that her husband was 24 years old at the time of his death; that he was an operator of a ricemill and was receiving a salary, on a commission basis, of P250.00 a month; and that to supplement his income, her husband engaged in poultry and hog raising.^[8]

Medico-legal officer, Dr. Pepito D. Balgos, testified that he conducted the autopsy on the victim Eduardo Briones on May 28, 1983. He testified that Eduardo sustained a two-inch incised wound on the abdomen and a one-inch linear fracture on the left temporal bone of the victim. Eduardo died due to internal hemorrhage caused by the stab wound on the abdomen injuring the inferior vena cava.^[9] 

Police Officer Timoteo Aleman testified that he conducted the investigation on the incident and that appellant surrendered a bolo around 19 inches long with a black handle, which appellant identified as the bolo he used in killing Eduardo. He said appellant first surrendered himself with the bolo to the Chief of Police, who in turn, brought him and the bolo to the police station.^[10]

The defense's evidence consisted of the testimony of its lone witness, the appellant, who interposed self-defense.

Appellant testified that on May 27, 1983, at around 6:30 o'clock in the evening, he was at the house of his brother-in-law, Clemente Agne, drinking a bottle of San Miguel gin with Clemente and two (2) neighbors, Pedro and Pablo Villanueva. At 7:00 o'clock, his nephew, Eduardo Briones arrived and joined them. Afterwards, appellant said, Eduardo sat down and challenged him (Sergio) to a fight for no reason at all. When he was about to leave, he said Eduardo met him, tried to grab the bolo from his possession and attempted to attack him. Clemente, Pedro and Pablo tried to pacify Eduardo but the latter did not heed them. It was while Eduardo was attacking him that, appellant said, he hacked him. Sergio then ran away towards their house. When he learned that people brought Eduardo to the hospital, appellant surrendered himself to the Station Commander of the PNP of Aritao, Nueva Vizcaya. Appellant felt some remorse and later on, offered an amicable settlement with the family of the victim. He gave P8,000.00 as downpayment, but the settlement did not materialize. He remembered giving his statement at the police station but claimed that the investigator did not inform him of his constitutional rights.

As earlier stated, the trial court found Sergio Briones guilty beyond reasonable doubt of the crime of murder and sentenced him to suffer the penalty of reclusion perpetua.

Appellant now raises the following errors of the trial court:

I

... IN NOT GIVING EXCULPATORY WEIGHT TO THE THEORY OF SELF-DEFENSE INTERPOSED BY THE ACCUSED APPELLANT.

II

... IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY DESPITE FAILURE OF THE PROSECUTION TO PROVE ITS ATTENDANCE.

III

... IN CONVICTING ACCUSED APPELLANT OF MURDER INSTEAD OF HOMICIDE.

In his brief, appellant contends that he was able to prove by clear and convincing evidence that he acted in self-defense. All the elements of self-defense were present, according to him. There was unlawful aggression when the victim challenged him and tried to grab the bolo from him. He employed reasonable means in repelling the attack considering that the victim tried to grab the bolo and continued to attack him, even though he already moved backward. There was no sufficient provocation on his part as it was the victim who challenged him. Appellant also argues that there was no treachery because a quarrel or heated argument preceded the hacking and stabbing incident.

For the State, the Office of the Solicitor General (OSG) avers that eyewitnesses testified there was no unlawful aggression on the part of Eduardo Briones. The manner, spontaneity and demeanor of the two eyewitnesses, Clemente and Aurelia, erase any doubt on how appellant killed the victim. Clemente was a brother- in-law and Aurelia was a sister, in full blood, to appellant. Yet, the two unflinchingly described the treachery with which appellant thrust his bolo to the unsuspecting Eduardo. The OSG noted that the trial court overlooked the mitigating circumstance of voluntary surrender. It recommends the lowering of the penalty to 14 years 8 months and 1 day of reclusion temporal as minimum to 20 years of reclusion temporal as maximum.

The first issue is whether there was unlawful aggression, the resolution of which rests on the determination of the more credible and acceptable testimony. In our view, Clemente and his wife are more credible than appellant. First, the eyewitnesses are related to both the accused and the victim. We see no reason why they would fabricate an untruth at the expense of one relative. Second, no other witness corroborated the self-serving testimony of appellant. He alleged that the Villanueva brothers were in the scene, yet accused did not present either of them. Third, the spontaneity with which the prosecution's eyewitnesses delivered their testimonies, as observed by the trial court, obliterates any doubt on their veracity. This observation by the trial court is subject to great respect for it was in the best position to make such an estimation.^[11]

Appellant's invocation of self-defense is likewise unconvincing. The alleged conduct of the victim and his alleged comment concerning disrespect to elders, which angered appellant, is not a challenge to a fight. It is insufficient provocation nor can it be deemed unlawful aggression. The victim just sat in silence while the heated argument happened.^[12] No fighting words were hurled by the victim by way of provocation. Further, at the time appellant stabbed the victim, the latter was relaxing with his left leg raised and conversing with the Agne couple.^[13] Absent unlawful aggression, appellant can not successfully plead self-defense.^[14]

The second and third assignment of errors center on whether treachery attended the killing of Eduardo. Two requisites must concur to deem an act treacherous: 1) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and 2) the deliberate and conscious adoption of the means of execution.^[15] Relevant to the first is our ruling in People vs. Gasper, 225 SCRA 189 (1993) and People vs. Gupo, 190 SCRA 7 (1990). There is no treachery where the attack was preceded by a quarrel and a heated discussion. As shown by the testimony of Clemente, Sergio and Eduardo had an argument prompted by the latter's reply to the former's remark that he hated his nephew Sonny. Sergio berated Eduardo for being disrespectful and posed to box the latter.^[16] After Clemente pacified Sergio, the latter went home, returned with a bolo and attacked Eduardo.

On the second element, we note that the prosecution was not able to show that appellant intentionally allowed his brother-in-law to pacify him, so that he could go home, get his bolo and attack Eduardo. However, we do not discount the possibility that as soon as Sergio left Clemente's house or as soon as he arrived home, he thought of killing Eduardo with his bolo. Clemente's house is 20 meters away from appellant's house. But sufficient proof is wanting to show he had ample time to plot the killing nor that he actually and consciously adopted the means to commit it.

Absent the second element, the death of Eduardo could not be deemed accomplished by treachery. Thus, appellant is only guilty of homicide. Under Article 249 of the Revised Penal Code, homicide is punishable by reclusion temporal. We note that appellant surrendered himself right after the incident. Hence, he is entitled to the mitigating circumstance of voluntary surrender. The penalty of reclusion temporal is imposed upon appellant in its minimum period.^[17] Applying the Indeterminate Sentence Law, the imposable penalty shall be within the range of prision mayor, as minimum, to reclusion temporal minimum, as maximum. The range of prision mayor is 6 years and 1 day to 12 years. The span of reclusion temporal, minimum, is from 12 years and 1 day to 14 years and 8 months.

We also note that the trial court already appreciated the amount of P8,000.00, which appellant deposited in the bank in favor of the heirs of the victim, as advanced payment for his civil liability. Consequently, appellant has to pay only the amount of P42,000.00 as death indemnity.

As to actual damages, the prosecution had a list of expenses in the total amount of P18,066.00, incurred in connection with the death of the victim.^[18] However, only the receipt issued by Funeraria Aritao in the amount of P1,000.00, was presented. In lieu of actual damages, temperate damages under Art. 2224 may be recovered, for the prosecution was able to show that the victim's family suffered some pecuniary loss more than the amount of P1,000.00, but its exact amount can not be proved with certainty.^[19] For this reason, the award of P10,000.00 by way of temperate damages should suffice.

The heirs of the victim are also entitled to moral damages in the amount of P50,000.00 in accordance with our ruling in People vs. Robles, 305 SCRA 273 (1999). Moreover, the widow of the victim was able to show the physical, psychological and emotional suffering and financial reverses she and her family suffered from the death of the victim.^[20]

WHEREFORE, the assailed decision of the Regional Trial Court is AFFIRMED with MODIFICATION. Appellant Sergio Briones y Silapan is found guilty beyond reasonable doubt of homicide under Article 249 of the Revised Penal Code and SENTENCED to suffer a prison term of 8 years, and 1 day of the medium period of prision mayor, as minimum, to 12 years, 10 months and 21 days of the minimum period of reclusion temporal, as maximum, with the accessory penalties provided by law, and to indemnify the heirs of the deceased Eduardo Briones in the amount of P42,000.00 as death indemnity, P10,000.00 as temperate damages, and P50,000.00 as moral damages.

No pronouncement as to costs.

SO ORDERED.

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

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^[1] Records, pp. 399-425.

^[2] Id. at 425.

^[3] Id. at 106.

^[4] Also spelled as Temoteo Aliman, TSN, September 20, 1993, p. 2.

^[5] Also referred to as Sally, sister of Eduardo, TSN, January 29, 1985, p. 5.

^[6] Id. at 3-8; TSN, February 5, 1985, pp. 2-8.

^[7] Id. at 26-30; TSN, August 1, 1991, pp. 4-5.

^[8] TSN, March 21, 1985, pp. 2-19.

^[9] TSN, August 19, 1993, pp. 2-7.

^[10] TSN, September 20, 1993, pp. 2-4.

^[11] People vs. Adrales, G.R. No. 132152, January 19, 2000, p. 15.

^[12] TSN, February 5, 1985, pp. 20-21.

^[13] Id. at 4, 28-29.

^[14] People vs. Antonio, 303 SCRA 414, 429 (1999).

^[15] People vs. Edgardo Aquino y Pumawan, G.R. No. 128887, January 20, 2000, p. 5.

^[16] TSN, February 5, 1985, pp. 20-21.

^[17] Revised Penal Code, Art. 64 (2).

^[18] Records, pp. 341-344.

^[19] People vs. Suplito, G.R. No. 104944, September 16, 1999, p. 12.

^[20] TSN, March 21, 1985, pp. 5-6.