not on the weakness of that of the prosecution. Even if the evidence of the prosecution is weak, it cannot be disbelieved if the accused admitted responsibility for the crime charged. 12 By invoking self-defense, it became incumbent upon appellant to prove by clear and convincing evidence that he indeed had acted in defense of himself. The requisites of self- defense are: (1) unlawful aggression; (2) reasonable necessity of the means employed to repel or prevent it; and (3) lack of sufficient provocation on the part of the person defending himself. 13 Although all three elements must concur, self- defense must rest firstly on proof of unlawful aggression on the part of the victim. If no unlawful aggression attributed to the victim is established, there can be no self defense, whether complete or incomplete. Unlawful aggression is a condition sine qua non for the justifying circumstance of self-defense to apply. As an element of self-defense, unlawful aggression refers to an assault or attack, or a threat thereof in an imminent and immediate manner, which places the defendant's life in actual peril. There is an unlawful aggression on the part of the victim when he puts in actual or imminent danger the life, limb, or right of the person invoking self- defense. There must be actual physical force or actual use of weapon. Το constitute unlawful aggression, person attacked must be confronted by a real threat on his life and limb; and the peril sought to be avoided is imminent and actual, not merely imaginary. 14 the A Two times. "A When we were about to go back to the "Pabasa", Evan Baja suddenly appeared. Q When you saw Evan Baja, what did you notice at him? Assuming ex hypothesi that there was unlawful aggression on the part of the victims San Andres and Flores as claimed by appellant, such alleged unlawful A He called us and then, I saw him that his gun aggression had already ceased to exist. was pointed at me. When appellant shot San Andres, the latter was walking away from him (appellant). In point of fact, the testimony of appellant himself cannot be any clearer: EVAN BAJA: Q When you said turning back, what happened? Q Nang barilin po ako ni Joey San Andres So that when he misfired he was moving away? A "(p)apaiwas na po", sir. 18 (Emphases supplied) As it happened, when appellant shot San Andres while moving away from him, there was no more actual danger on appellant's life. Ergo, he had no justifiable reason to fire at San Andres at the back of his head. In the same vein, no unlawful aggression can be attributed to Flores as he was shot twice on his legs by appellant while about to help San Andres. Ingrained in Our jurisprudence is the doctrine that the moment the first aggressor runs away, unlawful aggression on the part of the first aggressor ceases to exist; and when unlawful aggression ceases, the defender no longer has any right to kill or wound the former aggressor; otherwise, retaliation and not self-defense is committed. Retaliation is not the same as self-defense. In retaliation, the aggression that was begun 16 TSN, 6 February 1996, pp. 8-44. 18 Id., p. 20. by the injured party already ceased when the accused attacked him, while in selfdefense the aggression was still existing when the aggressor was injured by the accused. 19 Plain as day, the primordial requisite of unlawful aggression is wanting. This being so, We find no necessity to determine whether the other two remaining elements of self-defense are present given that there is no finding of unlawful aggression. The circumstance of "reasonable necessity of the means employed" and lack of "sufficient provocation" on the part of one invoking legitimate self-defense both presupposes unlawful aggression, 20 which, as earlier adumbrated above, is lacking in the case at bench. Besides, in a catena of cases, the Supreme Court had emphatically held that the location, number or seriousness of the wounds inflicted on the victim are important indicia which may disprove accused's plea of self defense. 21 Here, evidence on record strikingly reveals that the points of entry of the bullets indicate that both San Andres and Flores had their backs turned away from appellant when they were shot. The wounds sustained by Flores on both his right and left legs were attested by the medical certificate and testimony of Dr. George Cheng who declared that the points of entry of the bullets on Flores' legs were located at the back or the posterior aspect, viz: "Right leg: Metallic foreign body (slug, fragments) lodged in the soft tissue posterior medial aspect of the right knee. Metallic foreign body (fragment lodged in the soft tissue posterior aspect of the upper third, right fibula. Left leg: Comminuted fracture proximal third, fibula with metallic foreign body fragments along the area. Along this grain, San Andres sustained a gunshot wound at the left posterior parietal region. 24 The bullet entered his left parietal region, above his ear, and floated forward, fracturing his skull. Prosecution witness Dr. Normando Bitanga recounted that the bullet that hit San Andres entered the posterior portion of the left side of his brain. "A Yes, sir. I examined Jowie San Andres at the Medical City General Hospital at about 9:00 o'clock in the morning at his bedside. Do you mean the gunshot wound? Q Yes, the wound of Jowie San Andres? 21 Id., p. 585. 22 23 TSN, 17 October 1992, p. 6 Original Record, p. 589. Q Could you tell the Honorable Court where the Article 50 of the Revised Penal Code, the entry of the bullet was? A The bullet entered the posterior portion of the left side of the brain, sir. Q In ordinary parlance Doctor is that on the back or on the side or at the back? A On the side, a little bit to the back, sir."25 (Emphases supplied) From the foregoing, We find that appellant's plea for self- defense nebulously falls to pieces. One final inflection. Appellant assails the acquittal of San Andres of the crime of illegal possession of firearms. It is a shopworn rule that if a criminal case is dismissed by the trial court or if there is an acquittal, an appeal therefrom on the criminal aspect may be undertaken only by the State through the Solicitor General. Only the Solicitor General may represent the People of the Philippines on appeal. The private offended party or complainant may not take such appeal. However, the said offended party or complainant may appeal the civil aspect despite the acquittal of the accused.26 Besides, the acquittal of San Andres can no longer be reviewed by Us as this would constitute a violation of his constitutional right against double jeopardy. It is doctrinally settled that after trial on the merits, an acquittal is immediately final and cannot be appealed on the ground of double jeopardy. The only exception where double jeopardy cannot be invoked is where there is a finding of mistrial resulting in a denial of due process.27 All the same, We deem it judicious to modify the penalty imposed by the court a quo. Article 249 of the Revised Penal Code provides the penalty of reclusion temporal for the crime of homicide. Under penalty for a frustrated crime is one degree lower than that prescribed by law. Frustrated homicide is thus punishable by prision mayor. Applying the Indeterminate Sentence Law, the minimum penalty to be meted out on appellant should be anywhere within the range of six (6) months and one (1) day to six (6) years of prision correccional, and the maximum should be taken from the medium period of prision mayor (Article 64, par. 1 of the Revised Penal Code) the range of which is eight (8) years and one (1) day to ten (10) years. Considering that no aggravating or mitigating circumstance attended the commission of the crime of frustrated homicide, appellant shall be sentenced to an indeterminate prison term of one (1) year and one (1) day of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor medium, as maximum.28 WHEREFORE, the Decision dated dated 4 June 2007 of the Regional Trial Court of Pasig City, Branch 69, in Criminal Case Nos. 87497 and 87498 is hereby AFFIRMED with MODIFICATION in that appellant Evan Baja is hereby sentenced to an indeterminate prison term of one (1) year and one (1) day of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor medium, as maximum, in each case. SO ORDERED. Reyes, Jr., A.B. and Lantion, JJ., concur. Judgment affirmed with modification. CERTIFICATION Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. [SP No. 112651. July 27, 2011] MENCORP TRANSPORT SYSTEM, INC., represented by the President/General Manager, petitioner, vs. ABGRETCH INTERNATIONAL MOVERS, INC., represented by its President/General Manager ROBERTO B. AGUINALDO, respondents; MENCORP TRANSPORT SYSTEM, INC., represented by the President/General Manager, petitioner, vs. SILVERIO AJOS, respondent. 1. CIVIL LAW; TORTS AND DAMAGES; NEGLIGENCE; “NEGLIGENCE,” DEFINED.-Negligence is the failure to observe, for the protection of the interest of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. 2. ID.; ID.; ID.; FAILURE OF THE DRIVER TO EXERCISE REASONABLE CARE WHICH ORDINARILY A PRUDENT PERSON WOULD HAVE USED IN THE SAME SITUATION IS PLAIN AND SIMPLE NEGLIGENCE. - We are exasperated by petitioner's insolent claim that its driver operated the Dominion Bus with utmost diligence and that the cause of the accident was the deluge of rain and the slippery road. If We believe hook, line and sinker such pretext, then every driver would be involved in a senseless road mishap during a heavy downpour. There is no reason why the steering wheel of the Dominion Bus would suddenly become "wild and uncontrollable" if it were not for the driver's recklessness. He should have taken all the necessary safety precautions, observing considerable speed at a slippery highway, at such a time when there was almost zero visibility due to the rain. Clearly, petitioner's driver failed to exercise reasonable care which ordinarily a prudent person would have used in the same situation. This is plain and simple negligence - the immediate and proximate cause of the accident. 3. ID.; ID.; ID.; VICARIOUS LIABILITY OF EMPLOYERS; FOR THE EMPLOYER TO AVOID THE SOLIDARY LIABILITY FOR A TORT COMMITTED BY HIS EMPLOYEE, AN EMPLOYER MUST REBUT THE PRESUMPTION BY PRESENTING ADEQUATE AND CONVINCING PROOF THAT IN THE SELECTION AND SUPERVISION OF HIS EMPLOYEE, HE EXERCISES THE CARE AND DILIGENCE OF A GOOD FATHER OF A FAMILY.Having thus settled the pressing issue on the negligence of the driver of Dominion Bus, there instantly arises a presumption juris tantum that there was negligence on the part of the employer, herein petitioner, either in the selection of the employee (Culpa in eligiendo) or the supervision over him after the selection (Culpa in vigilando). For the employer to avoid the solidary liability for a tort committed by his employee, an employer must rebut the presumption by presenting adequate and convincing proof that in the selection and supervision of his employee, he or she exercises the care and diligence of a good father of a family. To fend off vicarious liability, employers must submit concrete proof, including documentary evidence, that they complied with everything that was incumbent on them. 4. ID.; ID.; ID.; ID.; THE RESPONSIBILITY OF EMPLOYERS FOR THE NEGLIGENCE OF THEIR EMPLOYEES IN THE PERFORMANCE OF THEIR DUTIES IS PRIMARY, THAT IS, THE INJURED PARTY MAY RECOVER FROM THE EMPLOYERS DIRECTLY, REGARDLESS OF THE SOLVENCY OF THEIR EMPLOYEES.-As the presumption of negligence remains unrebutted, petitioner cannot escape vicarious liability for the quasi-delict committed by its employee. The responsibility of employees for the negligence of their employees in the performance of their duties is primary, that is, the injured party may recover from the employers directly, regardless of the solvency of their employees. PETITION FOR REVIEW from a decision of the Regional Trial Court of Muntinlupa City, Branch 203. The facts are stated in the opinion of the Court. Victor D. Aguinaldo for respondents. |