Albert Fernandez was the only witness in the killing of his father, Antonio Fernandez. In open court, he positively identified Armando and Eduardo Gaviola as the culprits. Armando denied the accusation but the trial court relied on the testimony of Albert Fernandez. Hence, Armando Gaviola was convicted of murder1 [As charged in the following information dated November 15, 1994 and filed with the Regional Trial Court of Cebu City (Criminal Case No. CBU-37820):

"That on the 29th day of July, 1994 at 11:00 o'clock in the evening, more or less, at Barangay Bulacao, Municipality of Talisay, Province of Cebu, Philippines, and within the jurisdiction of this honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with deliberate intent to kill, by means of treachery, evident premeditation and taking advantage of superior strength, did then and there willfully, unlawfully and feloniously assault, attack, stab and hack Antonio Fernandez, with the use of a long sharp bolo and bayonet knife, hitting the latter on the different parts of his body, thereby causing the instantaneous death of the said victim." Rollo, p. 9.] and accordingly sentenced to suffer the penalty of reclusion perpetua, to indemnify the heirs of Antonio Fernandez the sum of P50,000.00 as civil indemnity and P18,087.00 as medical and burial expenses, and to pay the costs. Eduardo Gaviola was never arraigned and has remained at large.

Accused-appellant Armando Gaviola now assails the decision2 [Penned by Judge Rodolfo B. Gandionco, RTC, Cebu City, Branch 16, dated May 20, 1996.] of the trial court and argues for his acquittal.

The appeal must fail and the conviction of accused-appellant Armando Gaviola for murder stands. Ncmâ

Albert Fernandez testified that on the night of July 29, 1994 at around 11:00 o'clock, he was working inside their house when he heard a noise outside. He went out to investigate, and he saw accused-appellant Armando Gaviola hack his father, Antonio Fernandez, with a bolo hitting him on the right forearm. Antonio fell to the ground, and Eduardo Gaviola stabbed him in the stomach and buttocks.

Accused-appellant then tried to hack Albert but the latter was able to hold his hand and grapple for possession of the bolo. A patrol car arrived, prompting accused-appellant and Eduardo Gaviola to run away. Albert rushed his father to the hospital where he died three (3) days later due to injuries he sustained which developed "severe infection secondary to gangrene in the right forearm"3 [Exhibit "C", Records, p. 16.] brought about by "contamination of the instrument used in the hacking."4 [TSN, December 8, 1995, p. 4.]NcmmisÓ

Accused-appellant, however, narrated a totally different story. He claimed to have acted in self-defense. He averred that on the night of the incident, he heard his fellow "trisikad" driver, Tommy Mihiyo, cry for help. He went to render assistance, and he saw Antonio and Albert Fernandez mauling Mihiyo. He pacified and separated the protagonists. Antonio and Albert Fernandez then left and accused-appellant attempted to bring Mihiyo to the hospital but in no time Antonio and Albert Fernandez were back. This time, Antonio was armed with a scythe while Albert brought with him a metal tube with nail bullets.

Allegedly, the Fernandezes attacked accused-appellant but he was able to evade the blows. He was able to wrest possession of the scythe from Antonio. In their struggle and while acting in self-defense, accused-appellant hit Antonio on different parts of his body which eventually led to his death.

The trial court relied primarily on the testimony of Albert Fernandez which it found to be credible and consistent with the evidence presented. It is well-entrenched in our jurisprudence that findings of facts of trial courts absent any showing of arbitrariness is accorded great weight and respect. This Court finds no reason to depart from this rule and upholds the trial court when it held, thus: Scncä m

Being the son of the victim, Albert Fernandez had more reason to identify the real culprits. It would be unnatural if he would opt to testify against an innocent person and allow the guilty one to remain free. The relationship of this witness with the victim does not disqualify him from taking the witness stand. Rather, his innate desire to bring to justice those whom he personally knew committed a crime against a close relative makes his identification of the accused all the more credible. SdaaÓ miso

In contrast, the trial court found the testimony of accused-appellant incredible and self-serving. Granting that accused-appellant risked his life and limb for Mihiyo, the least that the latter could have done was to testify on his behalf. Inexplicably, Mihiyo was never placed on the witness stand. Neither was any reason proffered to explain his absence.

The trial court was correct in its assessment that treachery and evident premeditation did not attend the commission of the crime. There is treachery when the offender commits any of the crimes against persons, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.6 [Revised Penal Code, Article 14, par. 16.] In this case, the prosecution did not establish how the attack was commenced. When Albert Fernandez went out of their house to investigate, Armando and Eduardo Gaviola were already in the act of attacking Antonio. In People v. Rodrigo Maldo, et al.,7 [G.R. No. 131347, May 19, 1999.] this Court held:

Likewise, the trial court correctly found that evident premeditation did not attend the commission of the crime. The prosecution failed to prove the following: (1) the time when the accused decided to commit the crime; (2) an overt act showing that the accused clung to their determination to commit the crime; and (3) the lapse of a sufficient period of time, as to allow the accused to reflect upon the consequences of the act.8 [Ibid.]

However, the presence of abuse of superior strength qualifies the crime to murder. Armando and Eduardo Gaviola were both armed when they attacked the defenseless victim. The victim was older than his assailants. Plainly, there was great disparity between the relative strengths of the protagonists. The assailants deliberately took advantage of their superior strength in attacking the victim. Accused-appellant first hacked Antonio Fernandez while Eduardo stood guard. When Antonio had already fallen to the ground, Eduardo Gaviola took his turn in stabbing Antonio on different parts of his body. The assailants used excessive force out of proportion to the means available to Antonio.9 [People v. Rodrigo Agsunod, G.R. No. 118331, May 3, 1999.]

Accused-appellant claims to have acted in self-defense. When accused-appellant invoked self-defense, he, in effect, assumed the onus probandi to substantiate the same. It became his inescapable burden to prove clearly and convincingly the elements of unlawful aggression on the part of the victim, reasonable necessity of the means employed to prevent or repel aggression, and lack of sufficient provocation on the part of the person defending himself.10 [People v. Virgilio Borreros, G.R. No. 125185, May 5, 1999.] Perusal of accused-appellant's testimony would disclose that he failed to prove all of these. His narration is simply too incredible to be believed. The number of wounds sustained by the victim and their location are contrary to appellant's assertion that he acted in self-defense. Scsä daad

Lastly, the trial court awarded P18,087.00 as actual damages to the heirs of the victim. However, the records reveal that the family of the victim spent P9,297.00 as medical expenses and P10,000.00 as funeral expenses or a total of P19,297.00. These expenses were proven and duly receipted.11 [Exhibits "A (A-1 to A-56)" and "B", Records.]

WHEREFORE, based on the foregoing, the decision of the Regional Trial Court, Branch 16 of Cebu City finding Armando Gaviola guilty of murder and accordingly sentencing him to suffer the penalty of reclusion perpetua and to indemnify the heirs of Antonio Fernandez the amount of P50,000.00 as civil indemnity is AFFIRMED, with the MODIFICATION that the award for actual damages of P18,087.00 is INCREASED to P19,297.00. With costs.

Davide, Jr., C.J., (Chairman), Puno, and Kapunan, JJ., concur.

Pardo, J., on official business abroad. SupÓ rema