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work can be made however, because the Court of First Instance of Rizal, Branch XXXII has lost its jurisdiction, the case being on appeal before this Court.

In the comment dated May 26, 1979,3 private respondents stated that although the Court of First Instance has lost jurisdiction over this case, they are willing to deposit the rentals in the said court upon order of this Court.

In the resolution of June 15, 1979, the Court granted petitioners' motion and required private respondents to deposit in the court of original the rentals in arrears of P180.00 a month from November, 1975 and thereafter within ten (10) days from notice.

5

On September 18, 1979, petitioners filed a "motion for issuance of writ of exécution of the judgment in unlawful detainer action" stating that herein private respondents failed to deposit in the court of origin the rentals in arrears as shown by the certification to that effect by the Clerk of Court of the City Court of Caloocan. In private respondents' opposition dated September 18, 1979 to the aforesaid motion, it was alleged that they deposited with the Clerk of Court of the Court of First Instance of Rizal the rentals from January, 1977 to June, 1979 in the amount of P5,400 as shown by the therein attached xerox copy of official receipt no. 1606599 dated June 28, 1979 and certification of said deposit by the Clerk of Court of said Court. Petitioners filed a brief reply dated October 9, 1979 8 stating that private respondents have not deposited the rentals from November, 1975 to December, 1976 and from July, 1979 to October, 1979. Hence, a manifestation' dated October 15, 1979 was filed by petitioners praying that the dispositive portion of the decision of the Court of Appeals be affirmed and enforced, and that a writ of execution be likewise issued.

6

In the opposition dated October 20, 1979,10 private respondents denied not having paid the rentals from November, 1975 to December, 1976; that the rentals for said months in the amount of P2,280.00 have been deposited on January 17, 1977 with the Clerk of Court of the Court of First Instance of Rizal under official receipt no. 3002990.11

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Upon examination of the records, it appears that on October 23, 1976, Marfil Excavation Service excavated one truck load of sludge from the septic tank of the premises in question as shown by the job certification 12 issued by said contractor. An affidavit dated June 21, 1977 13 of Damon Sy, one of the tenants in the property involved in this case attesting to the fact of said excavation, was likewise submitted by petitioners.

Private respondents did not deny that they have not deposited the rentals from July, 1979 to October, 1979. Moreover, the amount of P2,280.00 corresponding to the rentals from November, 1975 to December, 1976 or a period of fourteen (14) months is short of P240.00. The payment should have been P2,520.00. It should be noted that private respondents are presently occupying the questioned premises and therefore they should make a deposit of rentals as they become due to compensate the petitioners for having been deprived of possession of the premises. Failure of private respondents to deposit on time the monthly rentals for the use and occupation of the property gives the petitioners the right to execution of the decision of the Court of Appeals, affirmance of which was prayed for by petitioner as above stated.

Private respondents must forthwith be evicted from the premises because they failed to pay the rentals as ordered by the Court of Appeals notwithstanding their actual knowledge of the repair and clearing of the septic tank since as early as, October, 1976. As held by the appellate court, their proper remedy was not to suspend the rental payments under Article 1658 of the Civil Code wrongly invoked by them but to make the urgent repair themselves and clear the septic tank and charge the cost thereof to petitioner, as provided in Article 1663 of the Civil Code. But said respondents paid only part of the back rentals only when this Court ordered them in its June 15, 1979 resolution and still failed notwithstanding the Court's order to pay the same in full nor the rentals that accrued thereafter, without any explanation nor justification.

WHEREFORE, judgment is hereby rendered affirming the decision appealed from but modified by dispensing with the requirement of an order of the Court of First Instance certifying to the completion of the repair of the septic tank, it appearing that private respondents have not paid the amount of rentals from November, 1975 to the time they had actual knowledge of the repair of the septic tank within fifteen (15) days from said knowledge dating as early as October, 1976.

12 Page 94, Rollo.

18 Page 95, Rollo.

The private respondents are hereby ordered to vacate the premises in question, to return the possession of the same to petitioner Consuelo Banzon and to pay all the rentals in arrears at P180.00 monthly from November, 1975 until they shall have vacated the premises, and to pay costs of suit in all instances. Said petitioner is hereby authorized to withdraw the rentals deposited with the Court of First Instance of Rizal at Caloocan City in the amount of P2,280.00 under official receipt no. 3002990 (corresponding allegedly to the rentals from November, 1975 to December, 1976, but with a shortage of P240.00) and P5,400,00 under official receipt no. 1606599 (corresponding to the rentals 1999 from January, 1977 to June, 1979).

This decision shall be immediately executory upon its promulgation. To obviate any further delay in its enforcement, the Division Clerk of Court is directed to issue the corresponding writ of execution of the Court judgment, directly returnable to this Court.

SO ORDERED.

Teehankee, J., Chairman, Makasiar, Fernandez, Guerrero and Herrera, JJ., concur.

Appealed judgment affirmed with modification.

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[G. R. No. L-46485. November 21, 1979]

FIRST DIVISION

NORMAN LACSON, Petitioner, vs. THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, Ré. spondents.

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Antonio P. Coronel for petitioner.

The Solicitor General for respondents.

PETITION FOR REVIEW by certiorari of a decision of the Court of Appeals.

1

SYNOPSIS

The petitioner was originally charged under two informations: (1) for frustrated homicide for having shot the offended party; and (2) for illegal possession of firearms and ammunition for having in his possession a gun which was not licensed in his name and which he used in shooting the offended party.

Petitioner invoked complete self-defense alleging that the offended party attacked him and his wife with a "kris-like" knife at their residence and in order to repel the aggression he took the gun of his wife and shot the offended party. The trial court rejected petitioner's theory of complete self-defense and convicted him of the crime of frustrated homicide but acquitted him of the crime of illegal possession of firearm and ammunition. On appeal, the Court of Appeals affirmed the judgment of the trial court in toto.

On review, the Supreme Court acquitted the petitioner on the ground of complete self-defense holding that imminent danger to the lives of the petitioner and his wife was present and that the gun in the bag of petitioner's wife was the only reasonable means to ward off the attack. Judgment reversed.

SYLLABUS

of the Ruling of the Court

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1. REMEDIAL LAW; EVIDENCE; TESTIMONY OF WITNESSES; CONFLICTING VERSIONS REQUIRE EVALUATION OF THE PROBABILITY OR IMPROBABILITY OF THE TESTIMONY.-Where there are directly conflicting versions of the incident object of the accusation, the Court in its search for the truth perforce has to look for some facts or circumstances which can be used as valuable aids in evaluating the probability or improbability of a testimony, for after all the element of probability is always involved in weighing testimonial evidence so much so that when a court as a judicial fact-finder pronounces judgment that a set of facts constitute the true happening it does so not of its own personal knowledge but as the result of an evaluating process of the probability or improbability of a fact sought to be proved.

2. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES;

COMPLETE SELF

DEFENSE; MEANING OF REASONABLE NECESSITY OF THE MEANS EMPLOYED.-Reasonable necessity of the means employed does not imply material commensurability between the means of attack and defense. What the law requires is rational equivalence, in the consideration of which will enter as principal factors the emergency, the imminent danger to which the person attacked is exposed, and the instinct, more than the person, that moves or impels the defense, and the proportionateness thereof does not depend upon the harm done, but rests upon the imminent danger of such injury. In emergencies of this kind, human nature does not act upon processes of formal reason but in obedience to the instinct of self-preservation; and when it is apparent that a person has reasonably acted upon this instinct, it is the duty of the courts to sanction the act and hold the act irresponsible in law for the consequences.

3. ID.; ID.; ID.; REASONABLE MEANS EMPLOYED TO WARD OFF ATTACK OF THE OFFENDED PARTY; CASE AT BAR.-The use by the petitioner of a gun as the only available weapon to repel the aggression cannot be considered as an unreasonable means of defending himself and his wife from the offended party, where the findings of the trial court and the Court of Appeals were: (a) that the offended party was drunk at the time he was shot; (b) that he was known as a person of bad character in the locality; (c) that he had been convicted of serious physical injuries committed against his own uncle; (d) that on a previous occasion, he admitted having stoned the house of the petitioner and (c) that according to the testimony of the petitioner the offended party was armed with a "kris-like" knife when he intruded into the residence of the petitioner, which testimony was corroborated by the statement of the offended party himself, before he was fired at by the petitioner, when he said "Ano ang batas, ito ang batas" which phrase could only have referred to a weapon. There was imminent danger to the lives of the petitioner and of his wife from the unlawful attack of the offended party, an enraged, drunken and armed man, and the gun in the bag of petitioner's wife, who was beside him, afforded the petitioner the only reasonable means to ward off the attack. Hence, the petitioner is entitled to acquittal on the ground of complete self-defense..

OPINION OF THE COURT

FERNANDEZ, J.:

This is a petition for certiorari to review the decision of the Court of Appeals,' promulgated on April 26, 1977, affirming the judgment of the Court of First Instance of Bulacan, Branch VIII, in Criminal Case No. 0429-V, entitled "People of the Philippines vs. Norman Lacson" convicting the accused, petitioner herein, of the crime of frustrated homicide penalized under Art. 249, in connection with Art. 50 of the Revised Penal Code, but declaring him entitled to the privileged mitigating circumstance of incomplete self-defense considering that two of the three requisites mentioned in Art. 11, No. 1 of the Revised 1 Annex 'A", Petition, Rollo, pp. 30-35.

017842- 3

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