This is an appeal from the Decision^[1] of Branch 63 of the Regional Trial Court of Camarines Sur, finding appellant Pablito Ilo guilty of Murder for the death of his live-in partner, Virginia Oliva, sentencing him to suffer the penalty of reclusion perpetua and condemning him to pay her heirs in the amount of P50,000.00 and the costs.

On November 28, 1997, an Information charging appellant with Murder was filed with the trial court. The accusatory portion of said Information reads as follows:

"That on or about the 23^rd day of July, 1997, in Barangay Old Caaluan, Tinambac, Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and use of superior strength, did then and there willfully, unlawfully and feloniously attack, assault, strike with a big stone, box, kick, one Virginia Oliva, his common-law partner, hitting the latter on the head and on the different parts of her body, which caused her instantaneous death, to her heirs' damage and prejudice in such amount as shall be proven in court.

ACTS CONTRARY TO LAW."^[2]

Upon arraignment on January 13, 1998, appellant, assisted by his counsel de officio, pleaded not guilty.

At the trial, the prosecution presented three witnesses, namely: Dr. Ursolino M. Primavera, Jr., Amadeo Bocaya and SPO1 Teresito Porteza, the investigating and arresting officer.

Amadeo declared that on July 23, 1997, at about 10:00 p.m., he and appellant had a drinking spree in the latter's house.^[3] Moments later, appellant and his live-in partner Virginia had a heated argument. Appellant kicked her several times.^[4] Amadeo tried to pacify appellant but to no avail. Appellant rushed to the kitchen, got hold of an old frying pan and struck Virginia with it. She fell on the floor. Amadeo tried to placate his friend but was rebuffed anew. Appellant got hold of a stone used as tripod^[5] in cooking and smashed Virginia's head with it. Amadeo rushed to her aid and wiped off the blood oozing from her head. Amadeo wanted to seek police assistance but was afraid to venture into the neighborhood late at night. He and appellant continued their drinking spree until 4:00 a.m. when Amadeo left and went home.

Amadeo also testified that on two occasions during the trial, appellant asked him not to testify for the prosecution lest Amadeo land in jail for perjury but Amadeo opted to testify. When asked by the public prosecutor to point to Virginia's assailant, Amadeo pointed to the appellant.

Dr. Ursolino M. Primavera, Jr., the second witness for the prosecution, declared inter alia that at about 2:00 p.m. on July 24, 1997, appellant brought the hapless body of Virginia to the Tinambac Medicare Community Hospital. By then, she was already dead. Her whole face was contused and swollen. Dr. Primavera performed an autopsy on Virginia's cadaver and prepared a Necropsy Report,^[6] the pertinent portion of which states:

"POST MORTEM FINDINGS:

Skull fructure (sic), closed with muscular contussion (sic), parietal area (R)

Skull fructure (sic) closed forehead (L) with muscular contussion (sic)

Muscular contussion (sic), lacerated wounds 2 cm parietal area (L)

Muscular contussion (sic), whole face

Blunish (sic) discoloration of orbital area bilateral

Lacerated wound eyebrow 1.5 cm (R)

Lacerated wound 2 cm (R) eye

Cause of Death: Cardio-Respiratory Arrest

Hemorrhage cerebral"

Dr. Primavera opined that the fractures on Virginia's forehead and parietal areas were caused by a solid object.

SPO1 Teresito Porteza of the Tinambac Police Station declared that he conducted an investigation of the death of Virginia during which Amadeo identified appellant as her assailant. Appellant was arrested and jailed. The policeman later proceeded to the house of appellant and conducted an ocular inspection thereof. The place was topsy-turvy. The policemen noticed a broken frying pan and a stone inside the house. Porteza then entered in the police blotter^[7] his investigation report on the incident.

Appellant testified in his behalf. He denied having killed the victim. He further declared that at about 10:00 p.m. on July 23, 1997, he arrived home after a day's work of fishing. He averred that he caught Amadeo on top of Virginia, while both were completely naked. Appellant was flabbergasted. He was about to hit Amadeo with a bolo but the latter dashed out of the window and fled into the darkness of the night. Amadeo, however, returned and picked-up four stones the size of a fist and hurled the same through the window of the house of appellant. One of the stones hit Virginia. Appellant instinctively covered his two young sleeping children with his body to protect them. Appellant dressed up Virginia with a pair of panties and a shirt and brought her to the Medicare Community Center. He insisted that Virginia died because Amadeo hit her with a stone.

On September 28, 1999, the trial court rendered a decision finding the appellant guilty of Murder, the decretal portion of which reads:

"WHEREFORE, in view of the foregoing, the prosecution having proven the guilt of the accused beyond reasonable doubt, accused Pablito Ilo y Acayen alias "Hagawak" is hereby found guilty of the offense of Murder. He is ordered to suffer the penalty of Reclusion Perpetua and to pay the heirs of Virginia Ilo y Oliva the amount of P50,000.00 for her death, and to pay the costs.

SO ORDERED."^[8]

The trial court gave credence and full probative weight to the collective testimonies of the witnesses of the prosecution in tandem with the physical violence and declared that the killing by appellant of the victim was qualified by treachery. The court, likewise, disallowed abuse of superior strength as a separate modifying circumstance since the same was necessarily included in treachery.

On appeal to the Court, appellant assigned in his brief a solitary error of the court a quo; thus:

"THE TRIAL COURT GRAVELY ERRED IN FINDING THAT TREACHERY ATTENDED THE KILLING OF THE VICTIM NOTWITHSTANDING THE ABSENCE OF COMPETENT AND SUFFICIENT EVIDENCE TO SUPPORT THE SAME."^[9]

Appellant argues that the injuries inflicted by him on the victim were spur-of- the- moment reflexes during a passionate lovers' quarrel, spawned by jealousy. He avers that the prosecution failed to prove that the killing of Virginia by the appellant was the product of a preconceived plan; a deliberate act to do away with her, what with the presence of Amadeo. He further contends that his actuations were triggered by the provocation emanating from
the victim herself. Hence, appellant contends that he is guilty only of homicide and not of murder. On the other hand, the trial court declared that based on the evidence on record, appellant used means and methods in assaulting Virginia to insure her death without any risk to himself arising from the defense which she might make. Virginia was so emaciated and less than five feet tall; she was at the mercy of appellant. The trial court concluded that treachery qualified the killing and, hence, appellant is guilty of murder.

We do not agree with the trial court.

Treachery is not presumed.^[10] The circumstances surrounding the murder must be proved as indubitably as the crime itself.^[11] The rationale of the principle was explained by the Court in People vs. Angel Rios,^[12] thus:

"It is an ancient but revered doctrine that qualifying and aggravating circumstance before being taken into consideration for the purpose of increasing the degree of the penalty to be imposed must be proved with equal certainty and clearness as that which establishes the commission of the act charged as a criminal offense. It is not only the central fact of a killing that must be shown beyond reasonable doubt; every qualifying and aggravating circumstance alleged to have been present and to have attended such killing, must similarly be shown by the same degree of proof."^[13]

To constitute treachery, two conditions must be present, namely: (1) the employment of means of execution that gives the person attacked no opportunity to defend or to retaliate; and (2) the deliberate or conscious adoption of the means of execution. The Court held that treachery cannot be appreciated if the assailant did not make any preparation to kill the victim in such a manner as to insure the killing or to make it impossible or difficult for the victim to defend herself. The prosecution must prove that the killing was premeditated or that the assailant chose a method or mode of attack directly and especially to facilitate and insure the killing without danger to himself.^[14] The essence of treachery is that the attack is deliberate and without warning done in a swift and unexpected manner of execution affording the hapless, unarmed and unsuspecting victim no chance to resist or escape.^[15] There is no treachery where the attack is neither sudden nor preconceived and deliberately adopted but just triggered by the sudden infuriation on the part of the offender.^[16] To establish treachery, the evidence must show that the offender made some preparation to kill the victim in such a manner as to insure the execution of the crime or to make it impossible or difficult for the person attacked to defend himself.^[17] The mode of attack must be planned by the offender and must not spring from the unexpected turn of events.^[18] There is no treachery when the killing results from a verbal altercation between the victim and the assailant such that the victim was forewarned of the impending danger. ^[19]

The prosecution failed to discharge its burden. The only evidence of the prosecution to prove treachery is that while appellant and Amadeo were having their drinking spree, a heated argument ensued between appellant and Virginia. Appellant boxed and kicked her several times, hit her head with a frying pan from the kitchen, causing Virginia to fall on the floor and struck her with a stone used as a tripod. There is no indubitable showing that appellant planned the attack which was so sudden and unexpected. The attack by appellant on the victim was preceded by a heated argument between them. Indeed, Amadeo admitted that he knew of no cause for appellant to inflict injuries on her. The prosecution failed to adduce evidence as to the relative positions of appellant vis-à-vis the victim. Taking into account the sequential continuity and rapidity of the events resulting in the death of Virginia, it cannot be gainsaid that appellant made preparations to kill Virginia and adopted a mode of attack as to make it impossible or difficult for her to defend herself. That Virginia was prostrate on the ground when she was hit on the head by appellant with a frying pan and a stone does not constitute treachery. In People vs. Ricardo Embega, et al.,^[20] we held that:

"xxx [T]hat the final blows may have in truth been delivered under conditions exhibiting some features of treachery, as in this case where the victim was said to have dropped his knife and was thus attacked by accused-appellants who were both armed, does not remedy the fact that the prosecution failed to prove the existence of treachery at the onset of the attack."^[21]

Neither did abuse of superior strength attend the killing of Virginia Oliva. Abuse of superior strength depends upon the age, size and strength of the parties. To take advantage of superior strength is to purposely use excessive force out of proportion to the means of defense available to the person attacked. In this case, the assault by appellant of the victim was a product of impulsiveness or the heat of the moment in the course of an argument between them. Hence, appellant could not have deliberately and purposely used excessive force out of proportion to the means of defense available to the victim.

In sum then, appellant is guilty only of homicide as defined in Article 249 of the Revised Penal Code which offense is punishable by reclusion temporal.^[22] Considering that no modifying circumstances attended the commission of the felony, the minimum of the imposable penalty therefor, applying the indeterminate sentence law, shall be taken from the full range of prision mayor, which is one degree lower than reclusion temporal, and the maximum period of the penalty shall be taken from the medium period of reclusion temporal.

On the civil liabilities of appellant ex delicto, the trial court awarded to the heirs of the deceased the amount of P50,000.00 as damages without specifying the nature of such damages. Moreover, the court failed to award moral damages in favor of the heirs.

In keeping with prevailing jurisprudence, the heirs of the deceased are entitled to the amount of P50,000.00 by way of civil indemnity ex delicto and the amount of P50,000.00 by way of moral damages. While it may be true that the prosecution failed to present any of the heirs of Virginia to prove that because of her death they suffered mental anguish, anxiety and similar injury, however, the Court takes judicial notice that as borne out by human nature and experience, a violent death invariably and necessarily brings about emotional pain and anguish on the part of the victim's family, and that it is inherently human to suffer sorrow, torment, pain and anger when a loved one becomes a victim of a violent death or brutal killing; for such violent killing not only steals from the family of the victim her precious life but also deprives them forever of the love, affection and support.^[23]

IN THE LIGHT OF ALL THE FOREGOING, the decision appealed from is AFFIRMED with MODIFICATIONS. Appellant is hereby found GUILTY beyond reasonable doubt of the felony of homicide, defined and penalized by Article 249 of the Revised Penal Code and there being no modifying circumstances in the commission of the crime, the Court hereby metes on said appellant an indeterminate penalty of eight (8) years, four (4) months and one (1) day of prision mayor in its medium period, as minimum, to fourteen (14) years, ten (10) months and twenty (20) days of reclusion temporal in its medium period, as maximum. Appellant is hereby ordered to pay to the heirs of Virginia Oliva, the amount of P50,000.00 by way of indemnity ex delicto and the amount of P50,000.00 by way of moral damages and to pay the costs.

SO ORDERED.

Bellosillo, J., (Chairman), Mendoza, Quisumbing, and Austria-Martinez, JJ., concur.

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^[1] Per Judge Freddie D. Balonzo.

^[2] Original Records, p. 1.

^[3] TSN, June 2, 1998, pp. 2-30.

^[4] Ibid, p. 3.

^[5] Ibid, p. 12.

^[6] Original Records, Exh. "A", p. 32.

^[7] Original Records, Exh. "B", p. 53.

^[8] Original Records, p. 102.

^[9] Rollo, p. 45.

^[10] People vs. Levy Monieva, 333 SCRA 244 (2000).

^[11] People vs. Jose Geral, 333 SCRA 453 (2000).

^[12] 333 SCRA 823, 833 (2000).

^[13] Id., p. 833.

^[14] People vs. Wilfrdo Bautista, 254 SCRA 621 (1996).

^[15] People vs. Benjamin Galano, et al., 327 SCRA 462 (2000).

^[16] People vs. Domingo Albao, et al., 327 SCRA (2000).

^[17] Idem, supra.

^[18] People vs. Stephen Santillana, 309 SCRA 104 (1999).

^[19] People vs. Ereño, 326 SCRA (2000).

^[20] 319 SCRA 304 (1999).

^[21] Id., p. 321.

^[22] Twelve years and one day to twenty years.

^[23] People vs. Uldarico Panado, et al., 348 SCRA 679 (1995); People vs. Victoriano Ernosa, et al., G.R. No. 137273, Sept. 17, 2002.