Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 168818 March 9, 2007

NILO SABANG, Petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

TINGA, J.:

On January 17, 1997, in the midst of a drinking spree on the eve of the fiesta in Liloan, Ormoc City,
an intoxicated Nicanor Butad uttered the ominous words "I will shoot you" to Randy Sabang, to the
horror of young Sabang's father, Nilo, and the other onlookers. Within moments, Butad himself lay
dead from four gunshot wounds on his body. Nilo Sabang, petitioner herein, who was charged with
and later convicted for the homicide, admits to the killing of Butad, but claims

that the shooting was accidental and done as a means of defending his son. An array of witnesses
for the prosecution and the defense provides a competing set of particulars as to the shooting.
Ultimately, the prosecutions version, supported by the physical evidence, stands out as the truth.

This much is admitted. At around 6:30 p.m. on that fateful night, petitioner and Butad were having
drinks together with spouses Cruz and Andresa Villamor outside the store of Melania Sombilon in
Sitio Landing, Barangay Liloan, Ormoc City.1 Butad, a civilian agent with the Philippine National
Police, was then armed with a .38-caliber revolver which was tucked in his holster. In the midst of
the drinking spree, Randy Sabang suddenly and unexpectedly appeared before the group. His
appearance triggered a negative reaction from Butad, who then uttered the words "I will shoot you"
to Randy Sabang.2

Certain circumstances attaching to this evident threat are disputed, as are the events that
consequently followed. What is certain is that shortly afterwards, Butad lay dead, having sustained
four (4) gunshot wounds from his own revolver. Petitioner appears to have fled but voluntarily
surrendered thereafter, turning over the revolver as he surrendered.3

Photographs of Butad as he lay dead on the scene were presented in evidence,4 as was the official
report on his autopsy, prepared by the City Health Office of Ormoc City. The autopsy
report5 indicated the following findings:

GENERAL SURVEY:

Examined a fairly nourished/fairly developed male cadaver with approximate height of 165 cm &
weight of 65 kg in state of rigor mortis.

FINDINGS:
 1. Bullet wound 1.0 x 0.5 cm at anterior chest wall, 14 cm from midline, right, along 3rd
intercostal space anterior axillary line penetrating thoracic cavity lacerating upper lobe of
right lung.

2. Bullet wound 0.7 x 0.5 cm at 4th intercostal space mid-axillary line, right, penetrating
thoracic cavity lacerating upper lobe of right lung.

3. Bullet wound 1.5 x 0.7 cm at distal 3rd lateral aspect of right arm injuring skin & muscles.

4. Bullet wound 0.7 cm x 0.7 cm at mid vertebral column fracturing spine of 8th thoracic
vertebra.

CAUSE OF DEATH:

Hypovolemia 2 to multiple bullet wound.

During arraignment, petitioner pleaded innocence, but during the presentation of the evidence for the
defense, he claimed to have acted in defense of a relative. Petitioner and four (4) other witnesses
testified for the defense. The following facts were sought to be established by petitioner:

By the time Butad had joined what was to be his last drinking spree, he was already in a belligerent
mood. Earlier that afternoon, he

had been chasing after Ramil Perez when the latter demanded payment for a bet Butad had lost
over a cockfight.6

The chase was witnessed by Celso Pepito, who would testify for the defense.7 As to the shooting
itself, testifying for the defense were petitioner himself, the storekeeper Sombilon, and an
eyewitness, Laurito Caparoso, who was situated right across the road when the shooting occurred.

Sombilon testified that when Butad told Randy Sabang, "I will shoot you," the deceased already had
his revolver aimed at Randy.8 At this point, Andresa Villamor, a niece of the deceased, told Butad,
"Please don't[,] tiyo, he's the son of Nilo."9 Petitioner and Caparoso also testified that at that time,
Butad had his revolver pointed at Randy.10Petitioner claimed that he then grabbed the arm of Butad,
attempting to twist it toward his body and away from his son. As they were grappling and the
revolver was pointed towards the body of

Butad, petitioner claimed he heard gunshots, and only after the shots were fired was he able to "take
the gun" from Butad.11 Petitioners account is substantially corroborated by Caparoso.12

This version of the shooting, however, stands in sharp contrast to that presented by the prosecution.

Natividad Payud, an eyewitness to the incident, testified that while the group of the deceased Butad,
petitioner, and the spouses Cruz and Andresa Villamor was having a drinking spree, Randy
suddenly entered the scene. Butad, appearing surprised, thrust a glass of Tanduay near Randys
mouth and uttered the words, "I will shoot you." Payud is certain that at this point, Butad was not
holding any gun.13 Andresa Villamor, another eyewitness to the incident, confirmed Payuds
testimony that Butad was holding a glass and not a gun when he uttered those words.14
Petitioner reacted to Butads statement saying, "Just try to shoot my child because Ill never fight for
him because he is a spoiled brat."15 Andresa Villamor then chided Butad and said, "Do not say that
tiyo[,] because its [sic] the son of Nilo Sabang."16

Unexpectedly, a person appeared on the scene and punched Butad causing the latter to fall down
lying partially on his back. Petitioner, who was then sitting across Butad, stood up and pulled the gun
tucked in Butads waist. He pointed the gun at Butad and fired a shot at the latters chest.17 Payud
and Andresa Villamor both saw petitioner fire two (2) more shots near Butads chest.18

In a Judgment19 dated November 22, 1999, the trial court convicted petitioner principally on the
strength of the testimony of Dr. Edilberto P. Calipayan, the physician who conducted the post
mortem examination of Butads body, to the effect that the absence of powder burns indicates that
the gunshots were fired at a distance of more than 10 inches from the victims body and not close
range as claimed by petitioner.20

The Court of Appeals affirmed petitioners conviction in a Decision21 dated August 16, 2004 and
denied reconsideration in a Resolution22 dated July 6, 2005.

In this Petition,23 petitioner prays for his acquittal contending that he acted in defense of his son, a
justifying circumstance under Art. 1124 of the Revised Penal Code. He claims that Butads act of
aiming a gun at his son while uttering the words "I will shoot you" was an aggression of the most
imminent kind which prompted him to try to wrestle the gun from Butad leading to the accidental
firing of the fatal shots.

Petitioner theorizes that the fact that Butad was then fully clothed could have accounted for the
absence of powder burns on Butads body. He disputes the trial courts finding that the wounds
would have looked oblique had the shots been fired during a struggle, claiming that round entrance
wounds could likewise be produced in near contact fire.

He further avers that Payud was not really an eyewitness to the event, pointing to the testimony of
Benjamin Mahusay that he and Payud were already out of Sitio Landing and were heading home
when they heard the gunshots. Likewise, Andresa Villamors testimony is allegedly confined to
seeing Butad sprawled on the ground.

The Office of the Solicitor General insists on petitioners conviction but asks that the award of moral
damages be reduced from 100,000.00 to 50,000.00.25

We shall first resolve the question of whether petitioners insistence on the justifying circumstance of
defense of relative deserves merit.

In order to successfully claim that he acted in defense of a relative, the accused must prove the
concurrence of the following requisites: (1) unlawful aggression on the part of the person killed or
injured; (2) reasonable necessity of the means employed to prevent or repel the unlawful
aggression; and (3) the person defending the relative had no part in provoking the assailant, should
any provocation been given by the relative attacked.26 Unlawful aggression is a

primary and indispensable requisite without which defense of relative, whether complete or
otherwise, cannot be validly invoked.27

It is well-settled in this jurisdiction that once an accused has admitted that he inflicted the fatal
injuries on the deceased, it is incumbent upon him in order to avoid criminal liability, to prove the
justifying circumstance claimed by him with clear, satisfactory and convincing evidence. He cannot
rely on the weakness of the prosecution but on the strength of his own evidence, "for even if the
evidence of the prosecution were weak it could not be disbelieved after the accused himself had
admitted the killing." Thus, petitioner must establish with clear and convincing evidence that the
killing was justified, and that he incurred no criminal liability therefor.28

Unlawful aggression must be clearly established by the evidence. In this case, there is a divergence
in the testimonies of the prosecution and defense witnesses as to whether Butad aimed a gun at
petitioners son as he uttered the words "I will shoot you." With this conflict emerges the question of
whether petitioner sensed an imminent threat to his sons life. Payud unequivocally testified that
petitioner even dismissed Butads utterance saying, "Just try to shoot my child because Ill never
fight for him because he is a spoiled brat."

This indicates to us that petitioner did not consider Butads words a threat at all.

These circumstances led the trial court to conclude that there was no unlawful aggression on the
part of Butad which could have precipitated petitioners actions. This finding, affirmed by the Court of
Appeals, is conclusive on the Court barring any showing of any arbitrariness or oversight of material
facts that could change the result.29

Furthermore, the presence of four (4) gunshot wounds on Butads body negates the claim that the
killing was justified but instead indicates a determined effort to kill him. Even assuming that it was
Butad who initiated the attack, the fact that petitioner was able to wrest the gun from him signifies
that the aggression which Butad had started already ceased. Petitioner became the unlawful
aggressor when he continued to shoot Butad even as he already lay defenseless on the ground.30

On this point, the defenses own witness, Caparoso, said in his Counter Affidavit31 and during direct
examination that after the first shot was fired, he saw petitioner take possession of the gun as Butad
released his hold of it. It was after petitioner already had the gun that Caparoso heard more
gunshots.32 Even petitioner admitted that he had an easy time twisting the hand with which Butad
was supposedly holding his revolver because the latter was already very drunk having started
drinking before noon that day.33

Another crucial point to consider is that the prosecutions theory is consistent with the physical
evidence.

The distance from which a shot is fired affects the nature and extent of the injury caused on the
victim. In close range fire, the injury is not only due to the missile but also due to the pressure of the
expanded gases, flame and other solid products of combustion. In

contrast, distant fire usually produces the characteristic effect of the bullet alone.34 A shot fired from
a distance of more than 60 cm or about two (2) feet does not produce the burning, smudging or
tattooing typically present in loose contact or near fire, short range fire and medium range fire.35

Powder burns is a term commonly used by physicians whenever there is blackening of the margin at
the entrance of the gunshot wound. The blackening is due to smoke smudging, gunpowder tattooing
and, to a certain extent, burning of the wound margin.36 As found by the medico-legal officer in this
case, Butads body did not have any powder burns. In response to the courts queries, Dr. Calipayan
testified:

COURTS QUESTIONS
Q Being an expert, is it a scientific fact that every gun burst within ten (10) inches distance as you
said, is it always a fact that there is presence of powder burns?

A It is always a fact, if the caliber of the firearm is higher or I can say, may be .22 caliber as well as
there is a gun powder that burst. If it is fired about less than ten (10) inches from the surface of the
skin, it will always cause powder burns.

Q And in this case, you cannot indicate the presence of powder burns?

A Because I did not find any.37

The fact that there were no powder burns on Butads body indicates that the shots were fired at a
distance of more than two (2) feet and not at close range as the defense suggests. Moreover, Butad
sustained four (4) gunshot wounds, three (3) of which were in the chest area, circumstances which
are inconsistent with the defenses theory of accidental firing.38

On the credibility of the prosecutions witnesses, the defense questions Payuds testimony averring
that its witness, Benjamin Mahusay, testified that he and Payud were already on their way home

when they heard the gunshots. According to Mahusay, he attended a cockfight which ended at 5
oclock in the afternoon of January 17, 1997. He went home afterwards and claimed to have met
Payud on the way home at around 5 in the afternoon.39 It was at this time that he and Payud
supposedly heard gunshots.

Mahusays account, however, conflicts with the established fact that Butad was shot to death at
around 6:30 that night. His testimony all the more loses significance in the face of Payuds
compelling testimony that she went back to Sitio Landing to fetch her children and witnessed the
killing.40

Moreover, it is not true, as the defense insists, that Andresa Villamor did not witness the actual
shooting. She unequivocally testified that she turned back and saw Sabang take the pistol from
Butad and point the gun at the latter. She instinctively covered her eyes shouting, "Do not shoot my
uncle!" She uncovered her eyes after hearing the first gunshot, saw petitioner still pointing the gun at
Butad, and watched as petitioner shot Butad two (2) more times.41

In the final analysis, petitioner failed to demonstrate any reason to disturb the findings and
conclusions of the trial court and the Court of Appeals. His conviction of the crime of homicide is
certain. Under Art. 249 of the Revised Penal Code, homicide is punished by reclusion
temporal. There being one (1) mitigating circumstance of voluntary surrender, the penalty shall be
imposed in its minimum period.42 Applying the benefits of the Indeterminate Sentence Law, the trial
court correctly imposed an indeterminate penalty ranging from eight (8) years and one (1) day
of prision mayor as minimum to twelve (12) years and one (1) day of reclusion temporal as
maximum.

As regards the matter of damages, we affirm the award of civil indemnity in the amount of
50,000.00 for the heirs of Butad in line with recent jurisprudence. Civil indemnity is mandatory and
is granted to the heirs of the victim without need of proof other than the commission of the
crime.43 We also affirm the award of 180,000.00 representing loss of earning capacity at a
reasonable life expectancy of three (3) years considering that Butad was already 67 years old at the
time of the incident.44 Likewise affirmed are the award of 50,000.00 as burial expenses duly proven,
attorneys fees of 40,000.00, and appearance fee of 1,000.00 per hearing.
We, however, agree with the Office of the Solicitor General that consistent with pertinent
jurisprudence, the award of moral damages should be reduced from 100,000.00 to
50,000.00.45 Finally, in the absence of any aggravating circumstance, the trial court correctly
withheld the award of exemplary damages.46

WHEREFORE, the instant petition is DENIED for lack of merit. The assailed Decision of the Court of
Appeals dated August 16, 2004 and its Resolution dated July 6, 2005, affirming the Judgment
rendered by the Regional Trial Court dated November 26,

1999, are AFFIRMED with the MODIFICATION that the award of moral damages is reduced to
50,000.00. Costs against petitioner.

SO ORDERED.

DANTE O. TINGA
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

ANTONIO T. CARPIO CONCHITA CARPIO MORALES

Associate Justice Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it
is hereby certified that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice
Footnotes

1 TSN, May 28, 1999, pp. 6-10, 15; August 21, 1997, p. 8.

2 TSN, August 21, 1997, pp. 8-9.

3 TSN, May 28, 1999, p. 30.

4 Records, pp. 160-161.

5 Id. at 159.

6 TSN, May 28, 1999, pp. 13-14.

7 TSN, December 4, 1998, pp. 8-9.

8 TSN, February 11, 1999, p. 15.

9 Id. at 16.

10 TSN, August 24, 1998, p. 16; May 28, 1999, p. 21.

11 TSN, May 28, 1999, pp. 28-30.

12 TSN, August 24, 1998, pp. 17-20.

13 TSN, August 21, 1997, pp. 8-9.

14 TSN, June 16, 1997, p. 10.

15 TSN, August 21, 1997, p. 10.

16 TSN, June 16, 1997, p. 11; August 21, 1997, p. 10.

17 TSN, August 21, 1997, pp. 11-13.

18 Id. at 13; TSN, June 16, 1997, pp. 14-15.

19 Records, pp. 406-410. The dispositive portion of the Judgment reads:

Wherefore, the Court finds the accused Nilo Sabang GUILTY beyond reasonable
doubt of the crime of homicide as charged, and hereby penalizes him after
appreciating one mitigating circumstance of voluntary surrender, to an indeterminate
imprisonment of 8 years and 1 day prision mayor as minimum to 12 years and 1 day
reclusion temporal as maximum, and to pay the offended party the sum of
50,000.00 as indemnity; sum of 50,000.00 as burial expense; the sum of
180,000.00 as loss of income at a reasonable life expectancy of the victim at 3
years; the sum of 100,000.00 for moral damages; and 40,000.00 as attorneys
fees including 1,000.00 per appearance.
 If the accused was detained, the period of his detention shall be credited to him in full
if he abides by the terms for convicted prisoners, for only 4/5 thereof.

SO ORDERED.

20 TSN, August 4, 1999, pp. 12-17.

Rollo, pp. 30-38; Penned by Associate Justice Pampio A. Abarintos and concurred in by
21

Associate Justices Mercedes Gozo-Dadole and Ramon M. Bato, Jr.

22 Id. at 39-40.

23 Id. at 3-29.

24 Art. 11. Justifying circumstances.The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur:

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending

himself.

2. Anyone who acts in defense of the person or rights of his spouses, ascendants,
descendants, or legitimate, natural, or adopted brothers or sisters or his relatives by
affinity in the same degrees, and those by consanguinity within the fourth civil
degree, provided that the first and second requisites prescribed in the next preceding
circumstance are present, and the further requisite, in case the provocation was
given by the person attacked, that the one making defense had no part therein.

25 Rollo, pp. 55-69.

26 Revised Penal Code, Art. 11.

27
People v. Ventura, G.R. Nos. 148145-46, July 5, 2004, 433 SCRA 389, 409.

28 Cabuslay v. People, G.R. No. 129875, September 30, 2005, 471 SCRA 241, 256-257.

29 People v. Alba, 425 Phil. 666 (2002).

30 People v. Barnuevo, 418 Phil. 521 (2001).

31 Records, p. 25.

32 TSN, August 24, 1998, p. 20.

33 TSN, May 28, 1999, pp. 38 and 44.

34 Pedro P. Solis, Legal Medicine (1987), p. 354.

35 Id. at 357-358. A short range fire covers a distance of 1 to 15 cm while a medium range
fire covers a distance of more than 15 cm but less than 60 cm.

36 Id. at 350.

37 TSN, August 4, 1999, pp. 15-16.

38 Pedro P. Solis, Legal Medicine, supra note 34 at 354.

39 TSN, May 5, 1998, pp. 8-10, 18.

40 TSN, August 21, 1997, pp. 6-7.

41 TSN, June 16, 1997, pp. 13-15; 36-37.

42 Revised Penal Code, Art. 64(2).

43 People v. Opuran, G.R. Nos. 147674-75, March 17, 2004, 425 SCRA 654, 673.

44 Butads widow testified that his income is 5,000.00 a month; RTC Records, p. 408.

45 Marzonia v. People, G.R. No. 153794, June 26, 2006, 492 SCRA 627.

46 Civil Code, Art. 2230.