Accused-appellant Guillermo Nepomuceno, Jr. has interposed the instant appeal in regard to the decision dated November 20, 1996 of the Regional Trial Court of the National Capital Judicial Region (Manila, Branch 46) which decreed:

Wherefore, the court hereby renders judgment finding the accused guilty beyond reasonable doubt of the crime of parricide as defined and penalized under Article 246 of the Revised Penal Code as amended by Republic Act No. 7659 for the death of Grace Nepomuceno and hereby sentences him to suffer imprisonment of Forty (40) years of reclusion perpetua and to pay the heirs of the deceased the sum of P50,000.00 with costs against him.

Pursuant to Article 921, paragraph (1) of the Civil Code, the court declares the accused ineligible to inherit from his wife. The entire estate should go to his son, Giordan Benitez Nepomuceno.

                                                                                               (pp. 20-21, Rollo)

The Information against accused-appellant charged:

That on or about May 2, 1994, in the City of Manila, Philippines, the said accused, did then and there willfully, unlawfully and feloniously, with intent to kill and with treachery and evident premeditation, attack, assault and use personal violence upon the person of one GRACE NEPOMUCENO Y BENITEZ, his wife, with whom he was married in lawful wedlock, by then and there shooting her with a gun of unknown caliber hitting her on the left hip, thereby inflicting upon the said GRACE NEPOMUCENO Y BENITEZ gunshot wound which was necessarily fatal and which was the direct and immediate cause of her death thereafter.

                                                                                                        (p. 5, Rollo)

Upon arraignment, accused-appellant, entered a plea of not guilty and trial ensued in due course. Thereafter, the trial court rendered the judgment of conviction now on appeal.

The prosecution presented seven witnesses, namely, Eden Ontog, SPO2 Rodolfo Rival, Forensic Chemist Mary Ann Aranas, Medico-Legal Examiner Floresto Arizala, Monserrat De Leon, Ballistic Expert Isabelo Silvestre, Jr. and Romeo Pabalan.

Eden Ontog declared that on May 2, 1994, she was the housemaid of the spouses Guillermo Nepomuceno, Jr. and Grace Nepomuceno, having started as such since May 31, 1993. At around 11 o'clock on the evening of May 2, 1994, accused-appellant, who was drunk, arrived and went to their bedroom where Eden and her ward Giordan the one-year old son of the couple, were sleeping. She was awakened by the loud voices of the spouses who were arguing. She saw accused-appellant get a gun from a drawer, so she went out of the room because of fear. After a few moments and while she was outside the room, she heard Grace Nepomuceno say: "Sige patayin mo ako, patayin mo na kami ng anak ko." Then Eden heard a gunshot. She was so scared that she went out of the house, reaching the door of the house of Barangay Chairman Congen Leonardo which is 5 meters away. After ten minutes, she saw accused-appellant coming out of the room. He told her to get a taxi so he could bring the wounded Grace to the hospital. She was left behind in their room to take care of baby Giordan. She tried to call up Monserrat de Leon, the sister of Grace in Pasig to inform her of the incident, but she could not get any connection (tsn, July 27, 1994, pp. 4-17; 24-42).

Mary Ann T. Aranas, a chemist of the National Bureau of Investigation Chemistry Division, declared that she conducted paraffin examination on both hands of the victim and those of accused-appellant. She found the victim's hands negative of nitrates, but found accused-appellant's right hand positive thereof. She gave the opinion that in view of the absence of nitrates on the hands of the victim, it is probable that she did not fire a gun and that accused-appellant, being positive of nitrates, did really fire a gun (tsn, August 31, 1994, pp. 17, 22; tsn, July 8, 1996, p. 6).

Dr. Floresto Arizala, Jr., the Medico~Legal Officer of the NBI who conducted a second-post mortem examination of the victim on May 7, 1994 at the Capitol Memorial Chapels, found that the victim died due to a gunshot wound, with the slug hitting the left internal iliac artery and the small intestines and thereafter resting between the uterus and the sacrum of the victim. He testified that taking into consideration the location of the wound, if the victim were in a sitting or lying position, the trajectory of the slug was upward coming from right to left; and if the victim were in a standing position, the muzzle of the gun should have pointed up. The witness declared that the muzzle of the gun could not have been less that one foot from the victim. He opined that grappling for possession of the gun was impossible because the trajectory of the bullet was going upwards and there were no smudges or signs of close firing. He believed that the victim could have survived if the surgeons had operated immediately (tsn, July 23, 1996, pp. 15-30).

Monserrat de Leon, sister of the victim, declared that Grace would confide to her that accused-appellant was jobless and that Grace had problems with the low income of the store she owned at Zurbaran Mart as compared to her expenses. Accused-appellant would force sex on Grace especially when he was drunk. Her sister had two miscarriages after their first child and it was during one of these miscarriages that she saw accused-appellant carrying a gun in the Mary Chiles Hospital where her sister was confined (tsn, August 12, 1996, pp. 3-28).

Upon the other hand, the defense presented accused~appellant himself as its lone witness. His story was quoted by the trial court thus:

Two days before the incident on May 2, 1994, Grace, the deceased was very much worried about the check (sic) she issued which was post dated May 2, 1994. She would have no funds for the checks. She had been nagging him, displaying her tantrums (nagdadabog) pestering him to do something to be able to fund the checks.

In the noon time of May 2, 1994, he left her spouse in their store and went to his mother's house in San Andres Bukid, Manila. This day was the day after the accused-appellant and his wife, and in-laws arrived from Batangas to attend a town fiesta.

He left the store to avoid further nagging, tantrums and pestering of his wife about his inability to produce money to be able to fund the postdated checks (sic).

At about 11:00 P.M. after dropping at a friend's house, he decided to go home, thinking his wife has already cooled off.

When his wife opened the door, she greeted the husband: 'You left in the store and you room (roam) around, where you able to find money.' He replied, 'where would I get money, do you expect me to hold up people?' (tsn, October 5, 1994, p. 18)

They had some arguments and Eden Ontog went out of their bedroom, and the arguments continued. There was a point in the argument when the wife told the accused thus: 'Wala akong silbi, bakit pa ako nag-asawa sa kanya.'

Because of these continued pestering and nagging of his wife he thought of separation. Perhaps it would be better if he should end his life. He then took a gun from their child's drawer. He sat on the bed holding that gun, engrossed in his thinking what to do. The gun was pointed towards the floor of their room.

In that situation, his wife continued with his nagging and pestering. He just remained silent.

And then Guillermo asked her wife: 'How come you do not treat me as a husband, why do you treat me like this.'

It was at this point that Guillermo decided to end his life. Perhaps seriously, perhaps just to scare his wife to stop all the pestering and tantrums. Surely not only a few husbands would thought (sic) as what that Guillermo was thinking then, he felt desperate. He wanted to finish his life. (p. 24, TSN, October 5, 1994)

It was during that time that their son, Jordan woke up, walked to the space between them (husband and wife) and Nepomuceno block his son's way with his right knee. In the process, he wanted to totally force Grace from taking possession and control of the gun. He raised his arm holding the gun passing over the left leg of Grace.

The gun went off.
                                                                                                (pp. 16-17, Rollo)

Aggrieved by the decision of the trial court, accused-appellant assigns the following errors:

I
THE TRIAL COURT ERRED IN NOT FINDING THE KILLING WAS ACCIDENTAL, AND THAT THE DECEASED WAS EXEMPT FROM CRIMINAL LIABILITY.

II
ASSUMING THE ACCUSED IS CRIMINALLY LIABLE, THE TRIAL COURT ERRED IN NOT FINDING THE KILLING WAS RESULT OF SIMPLE NEGLIGENCE.

III
THE TRIAL COURT ERRED IN FINDING THAT THE GUILT OF THE ACCUSED WAS PROVEN BEYOND REASONABLE DOUBT.

                                                                                      (p. 5, Appellant's Brief.)

In support of the first assigned error, accused-appellant contends that he did not have the least intention of killing his wife. He urges the Court to consider the circumstances attendant to the killing, which, according to him negate all inferences and deductions, that he would kill his wife. First, the deceased was hit in the upper leg, not in any vital organ. If he had the intention of killing the deceased, he would have shot her at the most vital part of her body.

Secondly, the reaction of the deceased after she was hit was contrary to ordinary and usual human behavior, if her husband really intended to kill her. The deceased just uttered, "Masakit Papa", she did not curse nor mouth evil and harsh language against accused-appellant to show hatred and anger.

Thirdly, if accused-appellant really intended to kill his wife, why did he call a taxi and bring her to the hospital for immediate medical attention?

Fourthly, why should accused-appellant voluntarily surrender to the police, if the incident was not accidental?

Accused-appellant claims exemption from criminal liability under Paragraph 4, Article 12 of the Revised Penal Code because, according to him, the incident occurred when he tried to prevent his wife from killing herself, and he and his wife grappled for possession of the gun.

After a painstaking review of the evidence and record of this case, the Court finds itself unable to reach conclusions identical to those put forward by accused-appellant.

First, accused-appellant cannot invoke the benevolent provisions of Paragraph 4, Article 12 of the Revised Penal Code in order to be exempted from criminal liability arising from the death of his wife, Grace Nepomuceno. Said provision pertinently states:

Art. 12. Circumstances which exempt from criminal liability. The following are exempt from criminal liability:
x x x
x x x
x x x 4.     Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it.

At all events, accident to be exempting, presupposes that the act done is lawful. Here, however, the act of accused-appellant of drawing a weapon in the course of a quarrel, the same not being in self-defense, is unlawful -- it at least constitutes light threats (Article 285, par. 1, Revised Penal Code). There is thus no room for the invocation of accident as a ground for exemption (People vs. Reyta, Jr., 13 CAR (25) 1190; 1195 [1968]).

The gun which accused-appellant took from his child's drawer was not even licensed or registered in his name as shown by the Certification of the Firearms and Explosives Office of the Philippine National Police, hence, he could have been charged with illegal possession of a firearm.

Secondly, accused~appellant's claim that the shooting happened when he tried to prevent his wife from killing herself and he and his wife grappled for the possession of the gun is belied by the expert testimony of Dr. Floresto Arizala, Jr. of the NBI who conducted a second post mortem examination on the cadaver of Grace Nepomuceno. He declared:

Q.   Now, is it possible Doctor, considering the location of the wound, the entrance wound and the trajectory of the bullet upwards, would you say Doctor, that both parties, I mean the victim and the assailant were grappling for the possession of said gun and it went off accidentally, is that possible, Mr. Witness?

A.   Well, I have to be convinced as to the grappling between the victim and the assailant, because if we were to be re-construct of the scenario that the gun have been fired, the muzzle of the gun could not have been closer than twelve (12) inches and considering that the gun was held by a hand, it farther places the assailant farther from the victim and farther the victim is, from the assailant, then the more impossible for the grappling for the gun. (tsn, July 23, 1996, pp. 19~20).

Thirdly, accused-appellant, testifying on the relative positions of the victim and himself when the gun discharged, stated:

Q.   Please tell the court your relative position and the victim when the gun actually went off?

A.   When I was in the act of trying to dispossess Grace with that gun and I was trying to let my right hand pass through my right side but because Grace was struggling, the butt of the gun hit a part of her upper leg and it exploded.

Q.   So when the gun actually fired, you were holding that gun, what part of your arm being held by Grace?

A.   Witness pointing the upper forearm and the lower portion of her upper arm."

                                                                                     (tsn, Oct. 5, 1994, p. 28.)

If Grace were holding the upper forearm and lower portion of the upper arm of accused-appellant when the gun fired, then at least the hand of Grace that held the upper forearm of appellant would have traces of nitrate considering its nearness to the exploding gun. However, in the paraffin test conducted by the Forensic Chemistry Division of the National Bureau of Investigation on Grace Nepomuceno's both hands, no traces of nitrates were found- while accused-appellant's right hand was positive of nitrates. The absence of nitrates on the victim's hands is convincing proof that she did not grapple with accused-appellant for the possession of the gun. It also proves that she was shot at a distance.

The fact that the victim was not shot in the head, or in any vital part of her body does not negate intent to kill. The Post Mortem findings on the cadaver of Grace Nepomuceno by Dr. Arizala shows that the bullet entered "the left thigh, lateral aspect, upper third . . . directed slight forwards, slightly upwards and from left to right initially involving the skin and subcutaneous tissue, then taking an intramascular route into the pelvic cavity thru the left obturator foramen, partially transecting the left internal iliac artery and the small intestines with the slug lodging just underneath the uterus in front of the sacrum where it was recovered." The extent of the physical injury inflicted on Grace, as above proved, manifests intention to extinguish life (People vs. Dawandawan, 184 SCRA 264 [1994]). Moreover, Dr. Arizala likewise declared that the bullet injured a vital organ of the victim (tsn, July 23, 1996, p. 9).

The fact that Grace, upon being shot, uttered, "Masakit, Papa" and did not use harsh language against accused-appellant does not, in any way, negate intent to kill. The utterance of a victim made immediately after sustaining serious injuries may be considered as pure emanations of the incident or the incident speaking through the victim (People vs. Morin, 241 SCRA 709; 710 [1995]). Thus, by the word "Papa", Grace was in effect, saying that it was accused-appellant who shot her.

We agree with the Solicitor General that the act of accused-appellant ordering Eden Ontog to call a taxi in which he brought the wounded Grace to the hospital is "merely an indication or act of repentance or contrition on the part of appellant" (Appellee's Brief, p. 71, Rollo).

Accused-appellant's voluntary surrender is not sufficient ground to exculpate him from criminal liability. The law does not find unusual the voluntary surrender of criminal offenders; it merely considers such act as a mitigating circumstance. Non-flight is not proof of innocence (People vs. Quijada, 259 SCRA 191 [1996]).

Under the second assigned error, accused-appellant claims that even assuming that the killing was not totally accidental, his acts would constitute only simple negligence. He asserts that he had established that the gun went off while he was grappling with his wife for its possession. He was preventing his wife from taking her own life. He might not have exercised the necessary due care in wrestling for the gun that resulted in the injury of his wife, but he could be charged only with parricide through simple negligence. So he says.

It has been held that a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence (People vs. Oanis, et al., 74 Phil 257 (1943); People vs. Nanquil, 43 Phil 232 [1922]). What qualifies an act of reckless or simple negligence or imprudence is the lack of malice or criminal intent in the execution thereof (United States vs. Maleza, 14 Phil 468, 471 [1909]). Otherwise stated, in criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another act done without malice but with lack of foresight, or with carelessness or negligence, and which has harmed society or an individual (People vs. Castillo, Jr., (275 SCRA 752 [1997]).

The argument of accused-appellant finds no support in the physical evidence. As already discussed, if the version of grappling for the gun were to be believed, there should have been nitrates on both hands of Grace. And if it was when accused-appellant placed the barrel of the gun at the base of his head that Grace grabbed his hand holding the gun and in the struggle for its possession his hand holding the gun was pushed down so that its butt hit the upper leg of Grace causing it to fire, then the trajectory of the slug should be downwards, through the upper thigh of Grace where it entered. Yet, the autopsy report of Dr. Arizala, Jr. showed the bullet entered the left thigh of Grace directed slightly upwards and from left to right, taking an intramascular route into the pelvic cavity, instead of a downward direction if accused-appellant's version were to be believed.

Thus, over and above the testimony of accused-appellant, these physical evidence, the lack of powder burns or nitrates on the hands of Grace and the trajectory of the bullet that entered her left thigh being slightly upwards and from left to right instead of downwards, repudiate accused-appellant's claim of simple negligence. Physical evidence is mute but an eloquent manifestation of truth and rates high in our hierarchy of trustworthy evidence (People vs. Uycoqua, 246 SCRA 769 [1995]).

Lastly, accused-appellant, perhaps in desperation, resorts to the shotgun type of argument that his guilt has not been proved beyond reasonable doubt. The argument is bereft of merit.

The prosecution has sufficiently established the elements of parricide by its evidence. These elements are: (1) the death of the deceased; (2) that she was killed by the accused; and (3) that the deceased was a legitimate ascendant or descendant, or the legitimate spouse of the accused (Article 246, Revised Penal Code; People vs. Embalido, 58 Phil 154 (1933)].

The first and third elements were stipulated during the pre~trial stage of the case, thus:

1.     that the victim and the accused are legally married. Said civil marriage took place on July 5, 1990;
xxx
5.     that immediately after the shooting, the accused voluntarily and bodily carried the victim into a taxicab and proceeded to UERM Hospital where she died on the operating table." (Pre-Trial Order of July 11, 1994, Record, p. 6)

The only issue then is whether accused-appellant intentionally killed Grace Nepomuceno, his legally wedded wife.

In convicting accused-appellant, the trial court relied heavily on the testimony of the prosecution witnesses. This Court finds no reason to do otherwise. It is a fundamental and settled rule that the trial court's assessment in regard to the credibility of witnesses is entitled to the highest degree of respect and will not be disturbed on appeal, as the trial court was in a better position to examine real evidence as well as to observe the demeanor of the witnesses (People vs. Dominguez, 217 SCRA 170 [1993]; People vs. Camaddo, 217 SCRA 162 [1993]; People vs. Vallena (244 SCRA 685 [1995]).

The Court agrees with the conclusions of the trial court as they are founded on the dictum that evidence to be believed must not only proceed from the mouth of a credible witness, but must be credible in itself - such as the common experience of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony, except in conformity with our knowledge, observation, and experience. Whatever is repugnant to these belongs to the miraculous and is outside of judicial cognizance (People vs. Escalante, 238 SCRA 554 [1994]).

Further, accused-appellant having admitted that he shot his wife, he has the burden of proof of establishing the presence of any circumstance which may relieve him of responsibility, and to prove justification he must rely on the strength of his own evidence and not on the weakness of that of the prosecution, for even if this be weak, it can not be disbelieved after the accused has admitted the killing (People vs. Bautista, 254 SCRA 621 [1996). Unfortunately for accused-appellant, he has miserably failed to discharge this task.

The trial court correctly appreciated the voluntary surrender of accused-appellant as a mitigating circumstance, this fact having been stipulated by the parties at the pre-trial stage of this case (Pre~Trial Order, Stipulation No. 10 Record, p. 17)

The penalty for the crime of parricide is reclusion perpetua to death; however, there being one mitigating circumstance but no aggravating circumstance, the lower of the two indivisible penalties should be imposed. The penalty cannot be further reduced by one degree as the Indeterminate Sentence Law does not find application, the penalties involved being indivisible.

WHEREFORE, the assailed decision convicting accused-appellant GUILLERMO NEPOMUCENO, JR. of the crime of Parricide is hereby AFFIRMED with the slight modification that his sentence shall be simply reclusion perpetua not "imprisonment of Forty (40) Years of reclusion perpetua" as stated by the trial court.

SO ORDERED.

Puno and Mendoza, JJ., concur.
Martinez, J., no part, on official leave.