What was supposed to be a merry yuletide season for the Roldan clan turned into a tragic Christmas Day when, in the early dawn of December 25, 1995, amidst the gaiety, family patriarch Cecilio Roldan was fatally shot at close range from behind before the horrified gaze of his wife and twelve year-old son.

Charged with Murder for the fatal shooting of Cecilio Roldan was his uncle, Bonifacio Abadies, a known neighborhood "toughie". The Information against him reads:

That on or about the 25th day of December 1995, at around 2:00 early dawn, in Brgy. Cadaohan, Ormoc City, and within the jurisdiction of this Honorable Court, the above-named accused BONIFACIO ABADIES, with treachery, evident premeditation and intent to kill, did then and there willfully, unlawfully and feloniously shot (sic) and hit with the use of an unlicensed firearm the person of the victim herein CECILIO ROLDAN, without giving the latter sufficient time to defend himself, thereby inflicting upon him a gunshot wound which caused his death. xxx.^[1]

The case was docketed as Criminal Case No. 4756-O at the Regional Trial Court of Ormoc City, Branch 35. Upon arraignment, accused-appellant entered a plea of "Not guilty."^[2] After trial, the court a quo rendered judgment convicting accused-appellant of the crime charged and imposing on him the supreme penalty of death, to wit:

WHEREFORE, for all the foregoing considerations, the Court finds the accused Bonifacio Abadies GUILTY beyond reasonable doubt of the crime of Murder as the killing was with treachery and hereby sentences him, after having found the aggravating circumstance of evident premeditation in the unrebutted testimony of Jose Manuel Roldan and no mitigating circumstances being present to offset the same, pursuant to Art. 63 of the Revised Penal Code, with the penalty of DEATH.

The Court further sentences the accused to pay the offended party the sum of P50,000.00 as indemnity; P25,000.00 as actual expenses; P50,000.00 as moral damages.

SO PROMULGATED.^[3]

On automatic review before the Court, accused-appellant insists that the penalty of death should not have been imposed on him because

THE TRIAL COURT ERRED IN IMPOSING THE MAXIMUM PENALTY ON ACCUSED-APPELLANT DESPITE THE FACT THAT THE AGGRAVATING CIRCUMSTANCE OF EVIDENT PREMEDITATION WAS NOT PROVED BEYOND REASONABLE DOUBT.

On December 24, 1995, Cecilio Roldan, his wife Cynthia, their son Ronald and neighbor Salve Aligway were celebrating Christmas Eve at the balcony of their house at Barangay Cadaohan, Ormoc City. At 2:00 a.m. of Christmas day, Cynthia saw appellant Bonifacio Abadies, her husband's uncle, approached Cecilio from behind. Without warning, accused-appellant shot Cecilio with a short firearm about 8 inches in length.^[4]

Cecilio was hit on the upper back and slumped to the floor. Salve Aligway rushed to his side. Cynthia saw accused-appellant rushing towards the back of their house since the balcony was lighted.^[5]

Jose Manuel Roldan, Cecilio's brother who lived next door, heard the gunshot. He immediately went out of his house and saw accused-appellant, his uncle, carrying a firearm and hurriedly entering his own house, about ten meters away. Jose Manuel rushed toward his brother's house fearing that he had been hurt. He recalled that in the morning of the previous day, accused-appellant had threatened to kill Cecilio Roldan because of a recent misunderstanding between them. Jose Manuel arrived at Cecilio's house and found the latter wounded. ^[6]

Cecilio was rushed to the Ormoc District Hospital, where he eventually died.^[7]

According to the victim's widow, accused-appellant harbored a grudge against her husband because he was unable to give him the additional amount of P10,000.00 for the lease of a rice land owned by a certain Langkoy Fran in the month of December 1995, a few weeks before the shooting incident transpired.^[8]
Dr. Jesus Castro, who conducted the post-mortem examination on Cecilio, found that he sustained a fatal gunshot wound at the back which hit the heart. The distance of the gun from the victim was more than one foot, judging from the absence of gunpowder in the body.^[9] His post-mortem report indicated "Cause of Death: CP arrest, 2º Massive and Profuse bleeding 2º to gunshot wound."^[10]

Accused-appellant admits having shot Cecilio but claims that the shooting was accidental because the gun went off when he and Cecilio were grappling for its possession. He alleged that at around 11:00 p.m. of Christmas Eve, 1995, Cecilio invited him and his two sons to celebrate Christmas at his home. Accused-appellant and his sons arrived at Cecilio's house and sat at the terrace, where they drank tuba and ate chicken with him. At about past midnight, Cecilio went to his bedroom. When he returned, he was carrying a gun. Eleodoro, accused-appellant's son, shouted, "Watch out Pa, you might be shot!"^[11]

When he heard Eleodoro's warning, accused-appellant got up and grabbed Cecilio's hand. While he and Cecilio grappled for possession of the firearm, they both fell down with Cecilio on top of him. Accused-appellant tried to twist Cecilio's arm toward his back, when the gun suddenly went off. Immediately after the explosion, accused-appellant and his two sons fled leaving the victim alone. There were no other people present when the incident happened. At 7:00 a.m. the next morning, accused-appellant was arrested.^[12]

We find no reason to reverse the trial court's ruling insofar as the nature of the crime is concerned. Between the two conflicting versions of the killing, we agree with the trial court that the prosecution witnesses were more worthy of credence. Their testimonies were found to be spontaneous, positive, forthright, and were not destroyed or rebutted throughout the trial.^[13]

Murder is the unlawful killing of any person when qualified by any of the circumstances listed under Article 248 of the Revised Penal Code.^[14] Treachery or alevosia, aptly alleged in the information, is one such qualifying circumstance.

Given the prevailing facts of the case, we agree with the trial court that the killing of Cecilio Roldan was attended by alevosia. There is treachery when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.^[15] The qualifying circumstance of treachery attended the killing as the two conditions for the same are present, i.e., (1) that at the time of the attack, the victim was not in a position to defend himself, and (2) that the offender consciously adopted the particular means, method or form of attack employed by him.^[16] The essence of treachery is the swift and unexpected attack on the unarmed victim without the slightest provocation on his part.^[17]

In the case at bar, Cecilio Roldan was in the comforts of his home. He was eating, drinking and thoroughly engrossed in the gaiety of the yuletide season, while engaged in light banter with his wife and a neighbor. Suddenly and without warning, he was shot from behind by accused-appellant, his uncle. As in the recent case of People v. Herrera,^[18] accused-appellant suddenly positioned himself at the back of the unsuspecting victim, pointed his gun at him and, without any warning, promptly delivered the fatal shot. The victim was unaware of the attempt on his life and the danger that lurked behind him. There was no way the victim could have defended himself, taken flight or avoided the assault. Thus, the attendance of treachery qualified the killing to Murder.

However, we take exception to the finding of the trial court that the killing of Cecilio Roldan was premeditated. Like treachery, the elements of evident premeditation must be established with equal certainty as the criminal act itself, in order for it to be appreciated as a qualifying circumstance.^[19] Thus, the following must be proved beyond reasonable doubt: (1) the time when the accused determined to commit the crime; (2) an overt act manifestly indicating that he clung to his determination to commit the crime; and (3) a sufficient lapse of time between the decision to commit the crime and the execution thereof to allow the accused to reflect upon the consequences of his act.^[20] The essence of evident premeditation is that the execution of the criminal act is preceded by cool thought and reflection upon the resolution to carry out the criminal intent within a space of time sufficient to arrive at a calm judgment.^[21]

Evident premeditation must be based on external facts which are evident, not merely suspected, which indicate deliberate planning.^[22] There must be direct evidence showing a plan or preparation to kill, or proof that the accused meditated and reflected upon his decision to kill the victim.^[23] Criminal intent must be evidenced by notorious outward acts evidencing a determination to commit the crime. In order to be considered an aggravation of the offense, the circumstance must not merely be "premeditation" but must be "evident premeditation."^[24]

In the case at bar, none of the requisites of this aggravating circumstance can be inferred from the facts of this case. For one, the records do not show the time when accused-appellant resolved to commit the crime. The date and, if possible, the time when the malefactor determined to commit the crime is essential, because the lapse of time for the purpose of the third requisite is computed from such date and time.^[25]

The second requisite is likewise wanting. The fact that accused-appellant made threats to kill the victim does not necessarily prove evident premeditation without a showing that accused-appellant performed acts manifestly indicating that he clung to his determination. Accused-appellant's threats, unsupported by evidence which would disclose his true criminal state of mind, will only be construed as casual remarks naturally emanating from a feeling of rancor and not a resolution of the character involved in evident premeditation.^[26]

An expression of hatred does not necessarily imply a resolution to commit a crime.^[27] Indeed, Jose Manuel Roldan, upon whose testimony the finding of evident premeditation is anchored, himself admitted he did not think accused-appellant would pursue his plan to kill Cecilio.^[28] In fact, he even declared on re-cross examination, "Nobody thought that he would carry out his plan."^[29] Suffice it to state that without such evidence, mere presumptions and inferences, no matter how logical and probable they might be, would not be enough to sustain a finding of this aggravating circumstance.^[30] In other words, the evidence falls short of proving the aggravating circumstance of evident premeditation.

There being no aggravating circumstance to be appreciated, the proper imposable penalty for the killing of Cecilio Roldan is reclusion perpetua. Under Article 248 of the Revised Penal Code, as amended by R.A. No. 7659, the penalty for Murder is reclusion perpetua to death. The lesser of these two indivisible penalties shall be imposed, pursuant to Article 63 (2) of the said Code.

Following prevailing jurisprudence, the Court finds the award of P50,000.00 as civil indemnity for the death of Cecilio Roldan proper without any need of proof other than the death of the victim.^[31] Moral damages, pegged at P50,000.00 by controlling case law,^[32] was also correctly awarded by the trial court taking into consideration the pain and anguish of the victim's family brought about by his death.^[33] The award of P25,000.00 as actual expenses incurred by the widow of Cecilio Roldan, which was duly proved,^[34] is likewise affirmed.

WHEREFORE, in view of the foregoing, the Decision of the Regional Trial Court of Ormoc City, Branch 35, in Criminal Case No. 4756-O, finding accused-appellant Bonifacio Abadies guilty beyond reasonable doubt of the crime of Murder and ordering him to pay the heirs of the deceased the sums of P50,000.00 as civil indemnity for death, P50,000.00 as moral damages and P25,000.00 as actual damages, is AFFIRMED with the MODIFICATION that accused-appellant is sentenced to suffer the penalty of Reclusion Perpetua instead of Death.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Carpio, Austria-Martinez, and Corona, JJ., concur. Sandoval-Gutierrez, J., on leave.

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^[1] Record, p. 1.
^[2] Ibid., p. 26.
^[3] Dated September 25, 1998; Ibid., pp. 242-249, at 249.
^[4] TSN, 5 May 1997, pp. 6-10; 7 May 1997, pp. 6-13; 2 June 1997, pp. 6-11.
^[5] TSN, 5 May 1997, pp. 9-10; 7 May 1997, pp. 7-8, 10.
^[6] TSN, 3 June 1997, pp. 6-28.
^[7] TSN, 5 May 1997, pp. 10-11; 6 May 1997, pp. 3-6.
^[8] TSN, 25 May 1997, pp. 12-13.
^[9] TSN, 6 May 1997, pp. 3-15.
^[10] Exhibit A.
^[11] TSN, 23 April 1998, pp. 8-19.
^[12] Ibid., pp. 19-24.
^[13] RTC Decision, p. 26; Record, p. 248.
^[14] 2 Reyes, Revised Penal Code, 14th Revised Ed. (1998), p. 472.
^[15] Revised Penal Code, Article 14, par. 16.
^[16] People v. Galam, 325 SCRA 489 2000.
^[17] People v. Romeo Garcia, G.R. No. 129216, 20 April 2001.
^[18] G.R. Nos. 140557-58, 5 December 2001.
^[19] People v. Moyong, 344 SCRA 730 2000; People v. Mendoza, 332 SCRA 485 2000; People v. Reyes, 287 SCRA 229 1998.
^[20] People v. Calago, G.R. No. 141122, 22 April 2002; People v. Galvez, G.R. No. 136790, 26 March 2001; People v. Torres, G.R. No. 138046, 8 December 2000.
^[21] People v. Uganap, et al., G.R. No. 130605, 19 June 2001.
^[22] People v. Mariano, 347 SCRA 109, 125 2000.
^[23] People v. Gadin, Jr., 331 SCRA 345, 354 2000.
^[24] People v. Umayam, G.R. No. 134572, 18 April 2002.
^[25] Rabor v. People, 338 SCRA 381, 389 2000.
^[26] Ibid.
^[27] People v. Dimailig, 332 SCRA 340, 352 2000.
^[28] TSN, 3 June 1997, p. 20.
^[29] Ibid., p. 22.
^[30] People v. Mariano, 347 SCRA 109, 125-16 2000; People v. Mahinay, 304 SCRA 767 1999.
^[31] People v. Concepcion, et al., G.R. No. 131477, 20 April 2001; People v. Mindanao y Gumabao, 335 SCRA 200 2000; People v. Quijon, 325 SCRA 453 2000.
^[32] People v. Pardua, et al., G.R. No. 110813, 28 June 2001; People v. Ereneo, 326 SCRA 157 2000.
^[33] People v. Alba, et al., G.R. Nos. 130627 & 139477-78, 31 May 2001; People v. Langit, 337 SCRA 323 2000 .
^[34] TSN, 5 May 1997, p. 13.