True, a father and husband has the duty and the right to defend himself, his family and his home. However, in order to successfully invoke self-defense and defense of relative, he must prove, by clear and convincing evidence, the concurrence of three elements, the most important of which is unlawful aggression on the part of the victim. Absent unlawful aggression, these defenses collapse and the accused must be convicted. slxä mis

Efren Mendoza y Salvador was charged with murder for the July 14, 1993 killing of Anchito A. Nano. Before the Regional Trial Court of Daet, Camarines Norte, an Information1 [The Information, dated September 6, 1993, was signed by Provincial Prosecutor Pascualita Duran-Cereno.] was filed against him on September 9, 1993, alleging as follows:

During his arraignment on October 22, 1993, appellant, with the assistance of Atty. Leo Intia, entered a plea of not guilty.3 [Records, pp. 10-11.] On November 6, 1997, after trial in due course, the court a quo rendered its assailed nine-page Decision,4 [Penned by Judge Sancho Dames II.] the dispositive portion of which reads:

Hence, this appeal.6 [The case was deemed submitted for decision upon receipt by this Court of the Appellee’s Brief on May 31, 1999. The filing of a reply brief was deemed waived, as none was submitted within the reglementary period.]

In the People’s Brief,7 [Signed by Assistant Solicitor General Carlos N. Ortega, Assistant Solicitor General Magdangal M. de Leon and Solicitor Ronaldo B. Martin.] the Office of the Solicitor General presented the following statement of facts:

The defense presented six witnesses: Appellant Efren Mendoza, his wife Emily and his son Ernie; Bayani Aguilar; Dr. Gaudencio Albano and Carmen Herico. In his Brief,9 [Appellant’s Brief was signed by Attys. Arceli A. Rubin, Bartolome P. Reus and Rogel F. Quijano of the Public Attorney’s Office.] appellant summarized the defense witnesses’ testimonies as follows:

The court a quo rejected appellant's plea of self-defense, ratiocinating as follows:

Holding that appellant’s claim was debunked by the prosecution witnesses’ testimonies which were more credible, the trial court explained: Korteä

In his Brief, appellant assails (1) the trial court’s rejection of his plea of defense of relative and (2) its characterization of the crime committed. Thus, he submits:

"I

II

The appeal is partly meritorious. The mitigating circumstance of voluntary surrender should be appreciated in appellant’s favor. Sclawä

The appellant admits to having hacked Anchito Nano, but vigorously insists that he did so to defend himself, his family and his home.

Mendoza recounts that on that fateful night, he was relieving himself in their comfort room situated about twenty meters outside their house, when he heard his wife’s frantic pleas for help. He immediately rushed to their house and saw Nano destroying their windows. The former looked for something with which to arm himself and found a bolo. He recalls that at this point, he heard his son shout, "Ama, tinaga ako!" Thereafter, he approached Nano to prevent him from entering the house. The latter allegedly faced him and was about to strike him with a bolo, but the former was able to parry the blow, quickly retaliate and hit him on the neck.14 [TSN, March 27, 1995, pp. 4-8.]

Because the accused raises self-defense and defense of a relative, it is incumbent upon him to prove the presence of the following requisites: unlawful aggression on the part of the victim, lack of sufficient provocation on his part, and reasonable necessity of the means he used to repel the aggression.15 [Art. 11 (1 and 2), Revised Penal Code, which reads:

2. Anyone who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate, natural or adopted brothers or sisters, or of 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 the defense had no part therein."] It is settled that the accused who invokes self-defense or defense of a relative must present clear and convincing evidence. Such person cannot rely on the weakness of the prosecution, for even if it is weak, it cannot be disbelieved because the former has admitted the killing.16 [People v. Cawaling, 293 SCRA 267, July 28, 1998; People v. Cayabyab, 274 SCRA 387, June 19, 1997; People v. Camahalan, 241 SCRA 558, February 22, 1995; People v. Peñones, 200 SCRA 625, August 16, 1991; People v. Bausing, 199 SCRA 355, July 18, 1991.] ScÓ lex

We find that the appellant was not able to prove the all-important first requisite -- unlawful aggression on the part of Anchito Nano. Mendoza contends that it was the latter who started the aggression by acting in a manner that was threatening and dangerous to the former and his family, wreaking havoc on his house and in the process, injuring his seven-year-old son. Appellant likewise avers that Nano was about to strike him when the former, acting instinctively, delivered the fatal blows to the latter.

Emily and Ernie Mendoza, appellant’s wife and son, corroborated this assertion. They testified that the deceased had started the fracas and caused the wound on Ernie’s head. To further prove this claim, the defense presented Dr. Gaudencio Albano, Ernie’s attending physician, who testified that the boy had suffered a laceration, four centimeters long at the middle of the head, which could have been caused by a blunt object.17 [TSN, July 31, 1996, pp. 4-6.]

Despite this corroboration, however, several circumstances belie appellant’s claim of self-defense and defense of a relative. First, investigators found the deceased in a kneeling position with five wounds - three on the nape, and two at the back. Thus, the nature and the location of such wounds debunked appellant’s claim that Nano was about to attack him.

Second, the bolo which Nano had allegedly used in his attack was not found within the vicinity of the crime scene and was not presented in court. This point was established by SPO4 Silverio Rafael’s testimony18 [TSN, May 31, 1994, p. 17. Silverio Rafael testified:

"Q......What did you observe immediately within the surrounding of the body of the victim?

A......There was none. There was no sign of commotion or trouble whatsoever.

Q......Did you also find any weapon within the vicinity where the corpse of the victim was found?

A......There was none."] and the photographs19 [Exhibits "C," "C-1," "C-2," "C-3" and "C-4." Records, pp. 88-A, B, C, D and E.] depicting the actual crime scene.

Third, granting that Ernie Mendoza was injured, the appellant and his witnesses were not able to prove adequately that such injury was caused by Nano, because there were inconsistencies and improbabilities in their testimonies. Ernie claimed that he had lost consciousness after being struck with a bolo by Nano.20 TSN, June 28, 1995, p. 5. Edwin Mendoza declared:

"Q......And what happened to you after you were hacked by Anchito Nano?

A......I lost consciousness, sir."] However, appellant asserts that he heard his child cry, "Ama, tinaga ako!" while the former was about to subdue the assailant. Moreover, appellant admits that he did not see Nano hit his son.

Likewise, the testimonies of Carmen Herico (Emily’s mother) and Pedro Saman regarding the circumstances after the hacking incident negated Emily’s claim that she had rushed her wounded son to the faith healer. Herico went to her daughter’s house after hearing the latter’s cries for help, but the former did not see anything except a fallen window.21 [TSN, October 22, 1996, p. 6.] Surely, she would have noticed if her grandchild was injured. Pedro Saman, the baranggay kagawad summoned by Herico, also testified that appellant’s children were in the house when he arrived at the crime scene,22 [TSN, March 10, 1994, p. 19.] but he did not mention anything about an injured child.

In any event, the trial court disbelieved the testimonies of the defense witnesses. The well-settled rule is that the trial court's findings on the credibility of witnesses and their testimonies are accorded great weight and respect, in the absence of any clear showing that some facts or circumstances of weight or substance which could have affected the result of the case have been overlooked, misunderstood or misapplied.23 [People v. Ferrer, 255 SCRA 19, March 14, 1996; People v. Lua, 256 SCRA 539, April 26, 1996.] Appellant failed to present any reason why this Court should reverse or modify the court a quo’s ruling.

In all, the totality of the evidence presented by the appellant was not sufficient to prove that it was Nano who had started the fracas, and that the former was just acting to defend himself, his family and his home. xä law

We agree with the trial court that the killing of Anchito Nano was qualified by treachery, as alleged in the Information. The essence of treachery is the sudden and unexpected attack, without the slightest provocation on the part of the person attacked.24 [People v. Rebamontan, 305 SCRA 609, April 13, 1999; People v. Cawaling, 293 SCRA 267, July 28, 1998; People v. Sol, 272 SCRA 392, May 7, 1997.] Treachery exists when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and especially to insure its execution, without risk arising from the defense which the offended party might make.25 [Article 14, par. 16, Revised Penal Code.]

In the present case, the victim's lack of awareness of the attack can be gleaned from the nature, the number and the location of his wounds. Furthermore, the testimony of Marianito Rafael, against whom no ill motive was imputed by the appellant, likewise established this fact. The former testified:

x x x......x x x......x x x

x x x......x x x......x x x

x x x......x x x......x x x

x x x......x x x......x x x

Appellant argues that the mitigating circumstance of voluntary surrender should be appreciated in his favor, because he immediately went to the Municipal Hall and surrendered to the police on the night of the incident. Scä

We agree. To establish this mitigating circumstance, the following three requisites must be shown: (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.27 [People v. Deopante, 263 SCRA 691, October 30, 1996.] The defense must show intent to surrender unconditionally to the authorities, either 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.28 [People v. Ramos, 296 SCRA 559, September 25, 1998; People v. Umadhay, 293 SCRA 545, August 3, 1998.]

In this case, all these requisites were proven. Appellant’s assertion that he surrendered was corroborated by Chief Inspector Bayani Aguilar, Vinzons chief of police, who issued a Certification that "one Efren Mendoza x x x voluntarily surrendered [to] this station, including his bolo x x x which was used to hack 3 times a certain Yoyoy Nano x x x."29 [Records, p. 190.] Contrary to the submission of the solicitor general,30 [Brief for the Appellee, p. 10.] the surrender of appellant was unconditional. He readily admitted that he had hacked the victim and subsequently put himself under police custody.

Furthermore, we hold that the trial court erred in ruling that voluntary surrender was "offset by the aggravating circumstance of treachery."31 [Decision, p. 9; rollo, p. 28.] The court a quo failed to appreciate the distinction between a generic aggravating circumstance and a qualifying one.

A qualifying circumstance changes the nature of the crime. A generic aggravating circumstance, on the other hand, does not affect the designation of the crime; it merely provides for the imposition of the prescribed penalty in its maximum period. Thus, while a generic aggravating circumstance may be offset by a mitigating circumstance, a qualifying circumstance may not.32 [Reyes, The Revised Penal Code, Book One, 12th ed., pp. 316-317.]

Treachery in the present case is a qualifying, not a generic aggravating circumstance. Its presence served to characterize the killing as murder; it cannot at the same time be considered as a generic aggravating circumstance to warrant the imposition of the maximum penalty. Thus, it cannot offset voluntary surrender. ScmisÓ

When the crime was committed on July 14, 1993, the penalty for murder was reclusion temporal, in its maximum period, to death.33 [Under RA 7659, which took effect on December 31, 1993, the penalty for murder is now reclusion perpetua to death.] At the time, however, RA 7659 which reimposed the death penalty was not yet in effect. In any event, the presence of the mitigating circumstance of voluntary surrender impels the imposition of the minimum period of the applicable penalty,34 [Article 64 (2), Revised Penal Code.] reclusion temporal (maximum). Applying the Indeterminate Sentence Law,35 [Section 2 of the Indeterminate Sentence Law provides that it does not apply "to persons convicted of offenses punished with death penalty or life imprisonment; x x x." (emphasis supplied) Because the law used the word "punished" instead of "punishable," what should be considered is the penalty actually imposed, not the imposable penalty. (Reyes, supra, p. 778; see also People v. Moises, 66 SCRA 151, August 13, 1975.) Accordingly, the law should be applied in this case, because the maximum penalty actually imposed is reclusion temporal in its maximum period.] appellant should be sentenced to prision mayor in its maximum period to reclusion temporal also in its maximum period.

Citing People v. Victor,36 [GR No. 127903, pp. 15-16, July 9, 1998, per curiam.] the solicitor general argues that the civil indemnity should be raised from P50,000 to P75,000. This is erroneous. In the said case, the Court held that "starting with the case at bar, if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the present amended law, the indemnity for the victim shall be in the increased amount of not less than P75,000.00." Obviously, that ruling, which involved rape and imposed the death penalty, cannot apply to the present case. Hence, consistent with current jurisprudence,37 [People v. Quitlong, GR No. 121562, July 10, 1998; People v. Lagarteja, GR No. 127095, June 22, 1998; People v. Marollano, GR No. 105004, July 24, 1997; and People v. Caballes, GR No. 102723-24, June 19, 1997.] we affirm the award of P50,000 as indemnity ex delicto.

Likewise, we affirm the award of moral damages in the sum of P30,000 for the anguish and the wounded feelings suffered by the victim’s heirs, which were duly proven.

WHEREFORE, the assailed Decision of the Regional Trial Court is AFFIRMED with the modification that appellant is hereby sentenced to an indeterminate penalty of 10 years and 1 day of prision mayor (maximum) to 17 years, 4 months and 1 day of reclusion temporal (maximum). All other awards are AFFIRMED. No pronouncement as to costs.

SO ORDERED. MisÓ sc

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