There is treachery when the accused unexpectedly and deliberately shoots an unarmed minor who is thus not in a position to put up a defense or to inflict harm on the former. Voluntary surrender is not appreciated even if the accused submits himself to the members of the barangay tanod who, by their presence in his house, precluded his escape. miso

Before us is an appeal of the May 18, 1998 Decision1 [Penned by Judge Felimon C. Abelita III.] of the Regional Trial Court (RTC) of Masbate, Masbate (Branch 44), convicting Eulogio Ignacio of murder in Criminal Case No. 8385. The RTC disposed of the case as follows:

Second Assistant Provincial Prosecutor Alberto A. Alforte charged appellant with the murder of Jessie Lacson in an Information dated February 28, 1997, the pertinent portion of which reads:

With the assistance of Counsel Percival Castillo, appellant pleaded not guilty when arraigned on September 18, 1997.4 [Records, p. 27.] After trial in due course, the RTC rendered the assailed Decision. Hence, this appeal.5 [The case was deemed submitted for resolution on October 28, 1999, when this Court received the Appellee’s Brief. The filing of a reply brief was deemed waived, as none was submitted within the reglementary period.]

In the Brief for the Appellee, the solicitor general narrated the facts as follows:

Arguing that he had acted in defense of property with no intention to kill the victim, appellant countered: miso

The trial court ruled that appellant failed to prove by credible, clear and convincing evidence that he had acted in lawful defense of the landowner’s property. There was no legal reason for him to shoot the victim, an unarmed minor at the time of the incident. The said court qualified the killing to murder because of the presence of treachery. apdc

In his Brief, appellant submits the following:

The appeal has no merit.

In arguing that the trial court erred in convicting him of murder, appellant merely posits that the killing was not qualified by treachery, without challenging the ruling that he had killed the victim. Nonetheless, the Court examined the records motu proprio, because of the well-ingrained doctrine that a conviction must rest on the strength of the prosecution's evidence, and not on the weakness, insufficiency or impropriety of the defense.9 [People v. Perucho, GR No. 128869, April 14, 1999; People v. Llaguno, 285 SCRA 124, January 28, 1998; People v. Paguntalan, 242 SCRA 753, March 27, 1995; People v. Rugay, 291 SCRA 692, July 2, 1998; People v. Manambit, 271 SCRA 344, April 18, 1997.] After all, even in cases in which the accused pleads guilty to a capital offense, the prosecution is still required to present evidence to prove his guilt and the precise degree of his culpability.10 [Section 3, Rule 116, Rules of Court.]

In the present case, we find ample evidence that appellant did shoot the victim. He himself admitted doing so, because he believed that the deceased and a companion, Edwin Velasco, had stolen crabs. Allegedly, he saw them carrying a basket and coming out of his house. When he approached, the two ran away. After they failed to heed his call for them to stop, he shot the victim with a homemade shotgun. miso

It should be stressed that appellant’s conduct cannot be justified as a lawful defense of property rights. For this justifying circumstance to be appreciated, the accused has the burden of proving unlawful aggression on the part of the victim and reasonable necessity of the means employed to prevent or repel it. In this case, the first requisite was not proven, because he was not attacked by the victim. In fact, he did not even see the victim steal the crabs; he merely suspected him of doing so. Furthermore, assuming that unlawful aggression was proven, there was no necessity to shoot because, according to him, the victim was already running away when hit.miso

In any event, the victim's companion at the time, Edwin Velasco whose testimony will be reproduced later, positively identified appellant as the killer.

Appellant argues in the main that treachery should not be appreciated, because there was no proof that he "deliberately and consciously adopted any means to kill" Lacson, but "merely acted on impulse to stop the fleeing culprits."11 [Appellant’s Brief, p. 8; rollo, p. 44.]

We disagree. Appellant carried out the attack deliberately and consciously; he did not act on mere impulse. This is clear from Edwin Velasco’s testimony, pertinent portions of which are reproduced hereunder: Sdaadsc

The foregoing testimony belies appellant’s contention. The victim and his companion stopped after appellant shouted at them. In fact, they were already facing him when he fired the fatal shot from a distance of around forty meters. This was affirmed by Dr. Ernesto L. Tamayo, who had conducted the postmortem examination on the victim, when he testified that the entry point of the gunshot wound was at the chest, not at the back.13 [TSN, October 1, 1997, p. 4.] Xlaw

Clearly, the evidence proves that appellant killed the victim, and that he did so without risk to himself. A killing is qualified by treachery when the accused employs means, methods or forms in the execution thereof without risk to himself arising from the defense which the offended party might make.14 [People v. Cortes, 286 SCRA 295, February 12, 1998; People v. Aranjuez, 285 SCRA 466, January 29, 1998; People v. Aquino, 284 SCRA 369, January 16, 1998.] To repeat, there was no more reason for appellant to shoot; that he did so was unexpected and surprising. Furthermore, Lacson was unarmed and a mere minor then. Because he had no weapon, there was no risk at all that appellant would be harmed. We stress that the former was only fourteen years old at the time, and that he could not have put up an effective defense.15 [People v. Gonzales, GR No. 130507, July 28, 1999; People v. Yam-Id, GR No. 126116, June 21, 1999; and, People v. Palomar, 278 SCRA 114, 149, August 21, 1997.]

Appellant maintains that the trial court should have appreciated the mitigating circumstance of voluntary surrender, because he allegedly gave himself up to three members of the barangay tanod who had gone to his house.

We are not persuaded. In order that the mitigating circumstance may be appreciated, the defense must clearly satisfy three requisites: (a) the offender has not been actually arrested; (2) the offender surrenders himself to a person in authority or the latter's agent; and (c) the surrender is voluntary.16 [People v. Deopante, 263 SCRA 691, October 30, 1996.] The defense must show an intent to surrender unconditionally to the authorities, because of an acknowledgement of guilt or because of a wish to spare them the trouble and the expense concomitant to the search and the capture of the accused.17 [People v. Ramos, 296 SCRA 559, September 25, 1998; People v. Umadhay, 293 SCRA 545, August 3, 1998.] Sc

Appellant’s surrender was not voluntary. Rather, he was forced to give himself up, because members of the barangay tanod were already inside his house, thereby precluding his escape.

WHEREFORE, the appeal is hereby DENIED, and the assailed Decision AFFIRMED. Costs against appellant.

Melo, (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.