G.R. No. 123969 February 11, 1999.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGELIO TAVAS alias “BOTOG”, accused-appellant.

FACTS

On June 4, 1988, at about 8:30 p.m., Antonio de la Cruz was shot inside the store of Beatriz T. Colcol in Inabaan Sur, Rosario, La Union. The victim’s sister, Adorada Dulay, heard the gunshot and rushed to the scene. She found the victim on the floor and asked who shot him. The victim answered loudly that it was “Botog” (accused Rogelio Tavas). The accused, standing nearby, retorted that the victim was trespassing and intended to steal. The victim was brought to the hospital. At the Doña Gregoria Memorial Hospital, in critical condition, he gave a sworn statement to Pfc. Alfredo Santiago, identifying the accused as the shooter who used an Armalite rifle. The victim died the following day. The prosecution presented evidence of expenses incurred by the victim’s family.
The accused, pleading self-defense and defense of a relative, testified that he heard his sister Betty shout “Agtatakaw!” (You are stealing!). He took an Armalite rifle, proceeded to the store, and saw the victim brandishing a bolo at his sister. When the victim turned and brandished the bolo at him, he fired, hitting the victim. Betty Colcol corroborated this, testifying that the victim entered her store, demanded money, and was holding a bladed weapon when the accused arrived and shot him.
The Regional Trial Court convicted the accused of murder, qualified by treachery, and sentenced him to reclusion perpetua. The accused appealed, arguing the trial court erred in appreciating treachery.

ISSUE

Whether the trial court erred in finding the accused guilty of murder by appreciating treachery as a qualifying circumstance.

RULING

The appeal is partly meritorious. The Supreme Court rejected the accused-appellant’s claim of self-defense and defense of a relative. The testimony of Dr. Jose Aspiras, Jr. established that the gunshot wound’s point of entry was at the back of the victim’s hip (“waist above and posterior to superior iliac crest, left”), proving the victim was not facing the accused when shot, thus negating the claim that the victim brandished a bolo at him. The trial court also did not credit the claim that the victim was armed with a bolo, finding the robbery allegation unsupported.
However, the Supreme Court found that treachery was not proven. The prosecution did not present evidence showing how the assault was initiated or carried out. The lone eyewitness, Adorada Dulay, did not see the actual shooting. The qualifying circumstance of treachery cannot be presumed; it must be proven as clearly as the crime itself. Without proof of the manner of attack, the crime is homicide, not murder.
The Court modified the trial court’s decision. The accused is found guilty of Homicide under Article 249 of the Revised Penal Code. Applying the Indeterminate Sentence Law, and considering the mitigating circumstance of voluntary surrender (the accused surrendered after hiding for more than three months), the penalty is imposed in its minimum period. The accused is sentenced to an indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum. The award of P50,000.00 as civil indemnity and P11,000.00 for actual damages is affirmed. Costs are against the accused-appellant.