The Case

On automatic review is the Decision^[1] dated 17 January 2001 of the Regional Trial Court of Ozamis City, Branch 15, 10^th Judicial Region ("trial court") in Criminal Case No. 2193.  The trial court found appellant Resty Tigle ("appellant") guilty of murder qualified by treachery and attended by the aggravating circumstances of evident premeditation, taking advantage of superior strength, and disregard of the age and sex of the victim.  The trial court sentenced appellant to suffer the death penalty and to pay the heirs of the victim P50,000 as civil indemnity, P30,000 as moral damages, as well as to pay the costs.

The Charge

The Information charged appellant with the crime of murder as follows:

That on or about the evening of December 17, 1997 in Barangay Capucao C, Ozamiz City, Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there with malice afterthought [sic], evident premeditation and with deliberate intent to take the life of Luisa Lapera, willfully, unlawfully, feloniously, suddenly, unexpectedly, and treacherously attack the latter with a bolo directing blows against the vital parts of the body of said Luisa Lapera thereby inflicting upon her mortal wounds, which directly caused the death of said Luisa Lapera.

CONTRARY to Article 248 of the Revised Penal Code.^[2]

Appellant was committed to the City Jail of Ozamiz City on 6 January 1998.^[3]

Arraignment and Plea

Appellant pleaded not guilty on his arraignment on 26 February 1998.  However, during the pre-trial, appellant manifested that he would like to withdraw his plea of not guilty and replace it with a plea of guilty to the lesser offense of homicide.  The prosecution rejected this manifestation.  Appellant admitted that he killed the victim Luisa Lapera ("Luisa") but invoked the mitigating circumstance of incomplete self-defense.  The prosecution also rejected the claim of incomplete self-defense.

The Trial

The Version of the Prosecution

Thereafter, trial commenced.  The prosecution presented three witnesses: (1) appellant's mother-in-law Mrs. Catalina Clarin ("Catalina"); (2) Dr. Daniel T. Medina; and (3) the victim's son Saturnino Lapera ("Saturnino").

Catalina testified that appellant killed Luisa.  At about 8:30 o'clock in the evening of 17 December 1997, Luisa was caroling with some kids at Catalina's house.  After the carolers left, appellant, his two friends, and two of Catalina's sons drank beer on the porch.  At around 10:00 o'clock in the evening, Luisa returned to buy cigarettes from Catalina.  Luisa came up to the porch, and Catalina sold her P2 worth of cigarettes.  Luisa sat on the bench and tried to start a conversation with her.   Catalina told Luisa that she could not attend to her because she would pray the rosary.  Catalina then went inside the house. While Catalina was praying, she heard the sound of a falling object outside.  Catalina went out and saw appellant holding a bolo.  Appellant's face was bloodied.  Luisa was lying face down in front of appellant. Catalina asked appellant, "What's wrong, Resty?"  Appellant allegedly replied, "You are not included, Ma. Just put off the light."  Catalina went back inside^[4] and roused her husband.  When she looked out again, appellant and Luisa were no longer on the porch stairs.^[5] Appellant later returned to Catalina's house and slept there.^[6]

The barangay captain, together with Civilian Volunteer Officers ("CVOs"), went to Catalina's house around midnight.  The barangay captain asked what happened, but Catalina was unable to talk coherently to them. The barangay captain and the CVOs were looking for appellant.  They left after Catalina pointed to where appellant was sleeping. The barangay captain, accompanied by policemen this time, returned to Catalina's house at 4:00 o'clock in the morning.  The barangay captain informed Catalina that appellant killed Luisa.  The police took appellant with them.  Catalina declared that the bolo appellant used to stab Luisa belonged to her husband.  She did not know how appellant got it.^[7]

Dr. Daniel T. Medina conducted the post-mortem examination on Luisa.  He testified that Luisa suffered six stab wounds caused by a sharp instrument.  He testified thus:

Q	So in this sketch, how many stab wounds did the victim suffer?
A	Six (6) stab wounds.
Q	Are they all vital?
A	No.  Only one (1) I mentioned here the parasternal area penetrating the heart.
x x x
Q	Are they all frontal?
A	Yes, sir.  This stab wound 3.5 cm in front and one (1) at the back or left side of the back and stab wound at the left thorasic [sic] cavity.
Q	Do you mean to say, that the victim was stabbed at the back also?
A	Yes, sir.  One at the back and one in front and another wound at the head medial area.
Q	Showing to us the wounds, what instrument could have caused these wounds?
A	Sharp instrument.
Q	Like bolo?
A	Yes, sir?
Q	And what was the caused [sic] of the death of the late Luisa Lapera?
A	Hyphovolemic [sic] shock secondary to stab wounds.  Meaning, loss of blood.  In fact I stated that in the death certificate.
Q	From your record, what wound that caused [sic] the death of the late Luisa Lapera?
A	Stab wound in front at the left side parasternal area going to the heart.
Q	Was the heart punctured?
A	Yes, sir.
Q	Do you remember doctor, if you have signed a death certificate?
A	Yes, sir.
Q	I am showing to you that death certificate, tell the court what relation has that to the death certificate you issued?
A	This is the one, sir.  The cause of death [is] cardiac arrest, secondary to hyphobulemic [sic] shock, secondary to multiple stab wounds in the body.
Q	Is that the same certificate of death you issued?
A	Yes, sir.[8]

The prosecution offered Saturnino's testimony to prove there was evident premeditation in the killing of Luisa.  Saturnino testified that he was hired as an overseer in Blanca Nieve Kelly's plantation.  He saw appellant stealing coconuts from this plantation.  At around 6:00 o'clock in the evening of 14 May 1994, Saturnino was on his way home from a basketball game when he saw someone climbing a coconut tree.  He did not recognize this person because it was already dark. Saturnino fetched Barangay Councilor Marcelo Angne and a CVO but all they were able to see were coconuts arranged in a pile. They guarded the place until 9:00 o'clock in the evening. Saturnino returned at 6:00 o'clock in the morning of the next day.  He saw appellant getting coconuts from the pile.  On seeing Saturnino, appellant ran and disappeared among the bushes.  Saturnino executed an affidavit on the matter.  Appellant later advised Saturnino not to testify in the case for qualified theft, or else his family would be killed.^[9]

The Version of the Defense

The defense also presented three witnesses: (1) appellant Resty Tigle, (2) Wilfredo Flores ("Wilfredo"), and (3) Allan Roa ("Allan").

Appellant Resty Tigle did not offer an alibi.  He maintained that what he did was done in incomplete self-defense.  Appellant confirmed that he was in his parents-in-law's house in the evening of 17 December 1997.  Wilfredo and Allan were drinking beer on the porch.  Appellant came out from the kitchen and was on the mouth of the stairway when Luisa suddenly struck him on the left eyebrow with an empty beer bottle.  She was standing on the second step of the stairs, directly in front of appellant.  There was blood on appellant's face.  At this point, appellant saw a bolo under the bench.  He took it, and stabbed Luisa.  Luisa fell on the stairway.  Wilfredo and Allan fled from the scene. Catalina looked through the window and asked, "What is that, Resty?"  Appellant supposedly replied in the Visayan dialect, "Be not afraid, for you are not included, Ma." Appellant then carried Luisa's body away from his parents-in-law's house.^[10] On redirect examination, appellant showed the scar on his left eyebrow to the court.^[11]

Wilfredo testified that before going to the house of his nephew Hilario Calunsag, he dropped by Catalina's house and bought a bottle of beer.  He was drinking beer on the porch with Allan when Luisa arrived to buy cigarettes.  After buying cigarettes from Catalina, Luisa sat on the bench.  Wilfredo and Allan offered Luisa a glass of beer, which she refused.  When appellant came out to the porch from the kitchen, Luisa suddenly struck appellant on the left eyebrow with an empty bottle of beer.  Appellant saw a bolo under the bench and immediately used it to stab Luisa.  Wilfredo saw that appellant stabbed Luisa only once before she fell down the stairs.  After seeing this, Wilfredo and Allan fled to the house of Hilario Calunsag.^[12] During cross-examination, Wilfredo stated that he did not see Catalina's two sons while he was on the porch.^[13]

Allan corroborated Wilfredo's account of the incident.  Wilfredo bought a bottle of beer from Catalina.  They were drinking beer on the porch when Luisa arrived to buy cigarettes.  Luisa then sat on the bench where Wilfredo and Allan were also seated.  The two men offered Luisa a glass of beer, which she refused.  When appellant appeared, Luisa hit him on the left eyebrow with an empty beer bottle.  Appellant saw a bolo underneath a bench and stabbed Luisa.  Luisa fell down the stairs.  Wilfredo and Allan fled to the house of Hilario Calunsag.  They were afraid of appellant, as he looked furious.^[14]

Both Wilfredo and Allan did not know of any previous dispute between appellant and Luisa.^[15]

The Trial Court's Ruling

The trial court found appellant guilty of murder. The trial court stated that a spirit of lawlessness, anger and revenge motivated appellant when he killed Luisa.  The trial court's version of the incident reads:

[U]pon seeing Luisa Lapera buying cigarettes in the porch of Catalina Clarin the accused got the bolo of his father-in-law and waited down below the stairs for the victim to come down.  And when the victim was coming down the accused met her with a stab directed at the parasternal area penetrating the heart.  The victim fell towards the accused but the latter avoided [her] and the victim fell to the ground.  Then the accused delivered more stabs on the fallen victim and hacked the medial area of the head.  Having accomplished his criminal acts the accused told [his] mother-in-law to [turn] off the light and to close the door.  He carried the lifeless body of the victim to a distance away from the scene of the crime towards the house of Saturnino Lapera.^[16]

The trial court appreciated treachery to qualify the killing to murder.  Evident premeditation, taking advantage of superior strength, disregard of the respect due to the offended party on account of her age and sex were appreciated as aggravating circumstances.  The dispositive portion of the trial court's decision reads:

WHEREFORE, the Court sentences the accused Resty Tigle to the penalty of Death and to pay the heirs of the victim the sum of P50,000.00 for her life and P30,000.00 as moral damages; and to pay the cost.

Immediate commitment of Resty Tigle to the National Bilibid Penitentiary, Muntinlupa City is hereby ordered.

SO ORDERED.^[17]

This case is now before us on automatic appeal, pursuant to Article 47 of the Revised Penal Code.

The Issues

Appellant raises the following errors:

I

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF THE CRIME OF MURDER DESPITE THE FACT THAT NO QUALIFYING AND AGGRAVATING CIRCUMSTANCES HAD BEEN PROVED BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.

The Court's Ruling

After weighing the evidence, we find appellant guilty of homicide, not murder.

Specificity of the Qualifying Circumstances

In his reply brief, appellant cited People v. Alba^[18] and People v. Manlansing^[19] as bases for the non-imposition of the death penalty.  According to appellant, although the Information alleged treachery and evident premeditation, the Information did not state these circumstances with specificity as qualifying the crime to murder.  Appellant quoted from People v. Alba the following:

We note however, that treachery, though stated in the information, was not alleged with specificity as qualifying the killing to murder.  Sections 8 and 9 [of Rule 110] of the Revised Rules of Criminal Procedure which took effect on December 1, 2000, provide:

Sec. 8.  Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances.  If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

Sec. 9.  Cause of the accusation. The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.

Pursuant to the aforequoted provisions of the Revised Rules of Criminal Procedure, the information should state not only the designation of the offense and the acts and omissions constituting it but shall also specify its qualifying and aggravating circumstances.  Guided by the established rule that when a penal statute, whether substantive or procedural, is favorable to the accused, the courts shall give it a retroactive application.  Thus, we held that since the information in this case failed to specify treachery as a circumstance qualifying the killing to murder, under the present Revised Rules of Criminal Procedure, treachery has to be considered a generic aggravating circumstance only.^[20]

Appellant also quoted from People v. Manlansing:

A review of the informations filed against appellants, in relation to prevailing law and jurisprudence as well as the newly adopted revisions of the Rules of Court favorable to the accused will show that the crimes of the brothers could not be qualified as murder.  Only recently in People vs. Gario Alba alias "Mario Alba," G.R. No. 130523, promulgated January 29, 2002, we ruled that pursuant to Sections 8 and 9 of Rule 110 of the Revised Rules of Criminal Procedure which took effect on December 1, 2000, the information should state not only the designation of the offense and the acts and omissions constituting said offense but shall also specify its qualifying and aggravating circumstances.  We noted in Gario Alba, that although the circumstance of treachery was stated in the information, it was not alleged with specificity as qualifying the killing to murder.  Since the information in Gario Alba, failed to specify treachery as a circumstance qualifying the killing to murder, treachery was considered only a generic aggravating circumstance, hence, we said that the crime committed in Gario Alba was homicide and not murder. (Emphasis supplied)^[21]

However, in our En Banc Resolution in People v. Rodelio Aquino y Roda,^[22] we held that:

[S]ections 8 and 9 of Rule 110 merely require that the Information allege, specify or enumerate the attendant circumstances mentioned in the law to qualify the offense.  These circumstances need not be preceded by the words "aggravating/qualifying," "qualifying," or "qualified by" to be considered as qualifying circumstances.  It is sufficient that these circumstances be specified in the Information to apprise the accused of the charges against him to enable him to prepare fully for his defense, thus precluding surprises during the trial.  When the prosecution specifically alleges in the Information the circumstances mentioned in the law as qualifying the crime, and succeeds in proving them beyond reasonable doubt, the Court is constrained to impose the higher penalty mandated by law.  This includes the death penalty in proper cases.

x x x

The words "aggravating/qualifying," "qualifying," "qualified by," "aggravating," or "aggravated by" need not be expressly stated as long as the particular attendant circumstances are specified in the Information.  (Emphasis supplied)

The resolution in People v. Aquino obviates the requirement of additional verbiage put forward in People v. Alba.  The manner the Information in the present case stated the circumstances satisfies the standard set in People v. Aquino.  The Information specified the circumstances allegedly attending the commission of the crime.  These circumstances need not be preceded by the words "qualifying" or "qualified by" to be considered as such.

Proof of the
Qualifying and Aggravating Circumstances

Treachery

We have seen that Luisa provoked appellant by striking him with an empty beer bottle on the head. Prosecution witness Catalina stated that when she looked outside to see what happened, she saw that appellant's face was bloodied.^[23] All witnesses for the defense testified that Luisa struck appellant on the left eyebrow with an empty bottle of beer.^[24] And on the spur of the moment, appellant stabbed Luisa. The prosecution did not present anything to rebut these assertions. After reading the testimonies of the witnesses for both the prosecution and the defense, we find that the trial court erred in disregarding the uncontested assertion that Luisa struck appellant's head with an empty bottle of beer.  There was no question regarding the credibility of the witnesses.  In fact, the trial court relied heavily on the witnesses' testimonies.

We cannot appreciate treachery against appellant. There is no treachery where the sudden attack was not preconceived and deliberately adopted but was just triggered by the sudden infuriation on the part of the accused because of the provocative act of the victim.^[25] There was no sufficient evidence that appellant deliberately adopted the means of execution employed by him.  What is apparent is that appellant perpetrated the killing impulsively.^[26] For treachery to be appreciated, it must exist at the inception of the attack, and if absent and the attack continues, even if present at the subsequent stage, treachery is not a qualifying or generic aggravating circumstance.  The prosecution must adduce conclusive proof as to the manner in which the altercation started and resulted in the death of the victim.  If the prosecution fails to discharge its burden, the crime committed is homicide and not murder.^[27]

Evident premeditation

The prosecution presented Saturnino Lapera's testimony to support its theory that appellant had evil designs on Saturnino and his family as early as 1994.  The victim was Saturnino's mother.  Saturnino's affidavit in the qualified theft case against appellant had angered appellant.  The prosecution asserts that the killing of Luisa was evidently premeditated.

Saturnino's testimony establishes something that is merely speculative.  To be considered an aggravation of the offense, the circumstance must not merely be "premeditation" but must be "evident premeditation."^[28] To warrant a finding of evident premeditation, the prosecution must establish the confluence of the following requisites:  (a) the time when the offender determined to commit the crime; (b) an act manifestly indicating that the offender clung to his determination; and (c) a sufficient interval of time between the determination and the execution of the crime to allow him to reflect upon the consequences of his act.^[29]

Threats to kill do not necessarily prove evident premeditation without a showing that appellant performed acts indicating that he clung to his determination.  Apart from Saturnino's testimony, the records of the case do not show any evidence to prove the aggravating circumstance of evident premeditation as alleged in the Information. There is no showing when and how appellant planned and prepared to kill Luisa. Appellant's threats, unsupported by evidence disclosing a criminal state of mind, are merely casual remarks naturally emanating from a feeling of rancor and not proof of evident premeditation.^[30]

Abuse of Superior Strength and Disregard of Age and Sex

The trial court found that the aggravating circumstances of abuse of superior strength and disregard of age and sex attended the commission of the crime and sentenced appellant accordingly.  In its zeal to convict appellant of the crime of murder, the trial court overlooked that the Information does not allege these circumstances. Aggravating circumstances, even if proven during trial, cannot affect appellant's liability when the Information fails to allege such circumstances.   This is pursuant not only to Section 9 of Rule 110 of the Revised Rules of Criminal Procedure, but also more importantly to an accused's constitutional right to be informed of the nature and cause of the accusation against him.^[31]

Penalty

We find appellant guilty of the consummated crime of homicide defined and punished under Article 249 of the Revised Penal Code.  The prescribed penalty is reclusion temporal, which ranges from twelve years and one day to twenty years.  We do not find any qualifying, aggravating, or mitigating circumstance. Applying the Indeterminate Sentence Law, appellant may be sentenced to an indeterminate penalty ranging from eight years and one day of prision mayor  as minimum to fourteen years, eight months and one day of reclusion temporal as maximum.

In consonance with prevailing jurisprudence,^[32] civil indemnity in the amount of P50,000 should be awarded without need of further proof.  The award of moral damages should be deleted because there is no factual basis for the award.^[33]

WHEREFORE, the assailed decision of the Regional Trial Court of Ozamis City, Branch 15, 10^th Judicial Region in Criminal Case No. 2193, finding appellant Resty Tigle GUILTY beyond reasonable doubt of the crime of murder, is MODIFIED.  Appellant Resty Tigle is declared guilty of the crime of Homicide defined in Article 249 of the Revised Penal Code.  Appellant is sentenced to suffer an indeterminate penalty ranging from eight years and one day of prision mayor as minimum, to fourteen years, eight months and one day of reclusion temporal as maximum.

Appellant is further ordered to pay the heirs of the victim P50,000 as civil indemnity.  The award of P30,000 for moral damages is deleted.

Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

---

^[1] Penned by Judge Pedro L. Suan.

^[2] Records, p. 1.

^[3] Ibid., p. 14.

^[4] TSN, 16 June 1998, pp. 9-12, 18-20, 23.

^[5] Exh. "C-2," p. 46.

^[6] TSN, 16 June 1998, p. 24.

^[7] TSN, 16 June 1998, pp. 12-14, 23-25.

^[8] TSN, 16 June 1998, pp. 4-6.

^[9] TSN, 27 March 1998, pp. 4-8, 12-16.

^[10] TSN, 28 October 1998, pp. 9-12, 23-26.

^[11] Ibid., p. 27.

^[12] TSN, 17 September 1998, pp. 3-7.

^[13] Ibid., p. 11.

^[14] TSN, 17 September 1998, pp. 18-21, 25, 31-32.

^[15] Ibid., pp. 11-12 (Wilfredo Flores), 25 (Allan Roa).

^[16] Rollo, p. 23.

^[17] Ibid., p. 25.

^[18] G.R. No. 130523, 29 January 2002, 375 SCRA 69.

^[19] G.R. Nos. 131736-37, 11 March 2002, 378 SCRA 685.

^[20] Supra note 18.

^[21] Supra note 19.

^[22] G.R. Nos. 144340-42, 6 August 2002.

^[23] TSN, 16 June 1998, pp. 11, 20.

^[24] TSN, 17 September 1998, pp. 6, 11-12 (Wilfredo Flores),  20-21, 25 (Allan Roa); TSN, 28 October 1998, pp. 10-11 (Resty Tigle).

^[25] People v. Albao, 383 Phil. 873 (2000).

^[26] People v. Aquino, 379 Phil. 845 (2000).

^[27] People of the Philippines v. Salvador de la Cruz, G.R. No. 131035, 28 February 2003.

^[28] People v. Umayam, G.R. No. 134572, 18 April 2002, 381 SCRA 323.

^[29] People of the Philippines v. Gonzalo Baldogo, G.R. Nos. 128106-07, 24 January 2003.

^[30] Rabor v. People, G.R. No. 140344, 18 August 2000, 338 SCRA 381.

^[31] CONST., ART. III, §14(2).

^[32] People of the Philippines v. Marlon Delim, G.R. No. 142773, 28 January 2003.

^[33] People v. Bautista, 371 Phil. 139 (1999).