This is an appeal from a decision 1 of the Regional Trial Court, Branch 20, Vigan, Ilocos Sur finding accused-appellants guilty of murder and sentencing each of them to suffer he penalty of reclusion perpetua
, to indemnify jointly and severally the heirs of the deceased, Amado Somera, in the sum of P50,000.00, and to pay the costs. Accused-appellants, Pfc. Julian Rapanut and Pat. Diosdado Rapanut, are members of the Police Force stationed in Sta. Catalina, Ilocos Sur under the command of the deceased, P/Sgt. Amado Somera.
The prosecution evidence tends to show the following: At around 10:30 p.m. on November 3, 1980, Accused
-appellants and P/Sgt. Somera arrived at the Vigan Police Station at the Vigan Municipal Hall in a police patrol tricycle driven by P/Sgt. Somera They had come from Caoayan, Ilocos Sur where they had been asked to help maintain peace and order during the town fiesta. Upon arrival at the municipal hall, P/Sgt. Somera went inside the police station to report to Cpl. Reynaldo Gascon, OIC of the Vigan Police Station, while accused-appellants waited for him outside. Afterwards, Somera and his companions left for their station in Sta. Catalina.
Not long after the three had left, between 11:00 and 11:30 of that night, Cpl. Gascon received a call regarding a shooting at Solid West, Vigan. Cpl. Gascon immediately sent Pat. Sumagit to Solid West, Vigan but the latter returned shortly as he could not find any trace of the incident. Just then, however, a barangay tanod and a companion came to report that there was really a shooting, and took Cpl. Gascon and four other policemen to the scene of the crime. As it turned out, the other person with the barangay tanod was Jovito Alibin, who is accused-appellant Julian Rapanut’s brother-in-law. 2 Cpl. Gascon and his men saw P/Sgt. Somera slumped over the driver’s seat of the tricycle and found empty shells and a .38 Cal. revolver on the ground. 3 When Somera’s body was lifted, his gun, a .38 Cal. revolver, fell to the ground.
On the basis of information given to him, Lt. Henry Thomas, Commanding Officer of the 148th PC Command looked for the Accused-Appellants
. He went to Pat. Diosdado Rapanut’s house where he found him sleeping. Diosdado accompanied Lt. Thomas to Julian’s house but the latter was not there. The following day, Lt. Thomas was called by then Mayor Porfirio Rapanut (now counsel for the accused-appellants) who took him to a certain place where Julian was staying. Apparently, Julian had asked Mayor Porfirio Rapanut to facilitate his surrender to the authorities.
Dr. Elvigio Taay, the one who conducted the autopsy filed this autopsy report 4 :chanrob1es virtual 1aw library
EXTERNAL FINDINGS:chanrob1es virtual 1aw library
1. Gunshot wound non penetrating entrance 1 cm in diameter, right side of neck, middle portion 2.5 cm below right ear with area of blackening around the wound of entrance.
NOTE: Slug was palpable and by extracted at the left side of the neck, same level as of entrance.
2. Gunshot wound thru and thru; entrance 1 cm in diameter left side of neck about 1/2 cm below findings in no. 1 (Gunshot wound of entrance 1, middle portion directed upward. Exit 5 cm in length, occipital region (skull) along the vertebral line.
3. Gunshot wound thru and thru entrance 1 cm in diameter, middle portion of left side of neck about 1/2 cm medial to gunshot wounds of entrance No. 2 at same level. Exit — 1.5 cm in diameter posterior aspect of neck middle portion.
4. Gunshot wound thru and thru entrance 0.9 cm in diameter, left arm middle third, posterior aspect. Exit — 1.5 in diameter, anterior aspect of left arm, same level as wound of entrance.
5. Gunshot thru and thru, entrance 1 cm in diameter at lower border of scapula involving subcutaneous and mascular tissue. Exit - 1.2 cm. in diameter at the right axillary region.
6. Gunshot wound thru and thru entrance 1 cm in diameter below the level of the left 12th posterior rib involving subcutaneous and mascular tissue. Exit - 1.5 cm in diameter about 2 cm above left pelvic bone, anterior aspect.
INTERNAL FINDINGS:chanrob1es virtual 1aw library
1. Penetrating wound of left sterno-cleidomastoid muscle, left common carotid artery was perforated.
2. Left subclavian artery was massively lacerated.
3. Penetrating wound of trachea penetrating wound of esophagus.
CAUSE OF DEATH: HEMORRHAGE SECONDARY TO GUNSHOT WOUNDS, MULTIPLE.
Julita Tumbaga, Forensic Chemist of the NBI, testified on the paraffin test conducted on the hands of the Accused-Appellants
. She testified that Julian Rapanut’s right hand tested positive for nitrates which she said possibly came from gun powder residue, 5 while Diosdado Rapanut’s hands tested negative. 6 She added, however, that she could not conclude from this circumstance alone that Diosdado Rapanut did not fire a gun at the time. 7
Doroteo Magaro, Officer-in-charge of ballistics of the PC Crime Laboratory of Camp Crame, testified that a ballistics examination conducted on the shells recovered from the scene of the crime and the test shells, as well as the slug recovered from the body of Somera and the test bullets, show that the shells came from the 5.56 M-16 Armalite rifle carried by Julian Rapanut during the incident 8 and from the 38 Cal. revolver, Serial No. 658737, issued to him. Magaro also testified that the test slug and the slug recovered from Somera’s body were fired from the same .38 Cal. revolver of Julian Rapanut. 9 A fragment was recovered but had no significant bore impressions and it could not be determined from what gun it was fired, according to him. 10
Maximo Manuel testified that on November 3, 1980, around 11:00 p.m., while he was on his way home after watching a movie, he heard gun reports coming from behind him. He then dropped to the ground and slowly crawled on his belly back to the place of the incident. He stayed low, about 15 meters away from the incident to avoid detection. He saw accused-appellant Julian Rapanut standing two meters in front of Somera who was then slumped over the driver’s seat of the tricycle, pointing a long firearm at Somera, while accused-appellant Diosdado Rapanut was standing two meters behind Somera holding a short gun pointed at the back of Somera. 11 He said that he did not immediately give a statement to the police and only did so on November 5, 1980, presumably because he was afraid to get involved in the case, but later he became "uneasy" so he decided to come out with his statement. 12 During his cross examination, Maximo Manuel reiterated what he said in his statement. He said that Julian Rapanut was directly in front of Somera while Diosdado Rapanut was positioned obliquely behind Somera 13 and, that after the incident, Diosdado Rapanut threw the short firearm he was holding to his side and ran away from the scene while Julian Rapanut stayed. 14 Manuel admitted that he did not actually see the shooting and that he only heard gun reports. 15
Cpl. Reynaldo Gascon testified that when Somera dropped by his office at around 10:30 p.m. after coming from Caoayan, he accompanied Somera out of the municipal building. Gascon saw Diosdado Rapanut and Julian Rapanut in the police patrol tricycle. Julian Rapanut had an M-16 Armalite rifle, while Diosdado Rapanut had a .38 Cal. revolver tucked in his right waist. Somera then drove the tricycle with Diosdado seated behind him and Julian seated inside the sidecar. 16
The defense claimed that Julian Rapanut shot Amado Somera after the latter had drawn his revolver during an altercation, while denying that Diosdado Rapanut ever took part in the killing of Somera.
Testifying on his behalf, Diosdado Rapanut said he was not armed on November 3, 1980 as he had previously been suspended for ten days (from November 1 to 10, 1980). He claimed that he had surrendered the gun issued for the duration of his suspension. However, he said that on the night in question, when Somera saw him, Somera asked him to go with them to Caoayan and later to take him (Somera) home to Solid West by driving the vehicle because there was no other one who knew how to drive. With them was the other accused-appellant, Julian Rapanut, who was asked by Somera to bring along an M-16 Armalite rifle which was then in the police armory. Diosdado testified that in addition Julian carried a .38 Cal. revolver. The three left for Vigan at around 7:00 p.m. in a police patrol tricycle, with Somera driving. Diosdado sat behind the driver, while Julian was in the sidecar. Diosdado said that they stopped by the Vigan Police Station and afterwards proceeded for the Caoayan Municipal building where they stayed for an hour, after which they left for Baggoc, with Somera still driving. At Baggoc, Somera looked for Remigio Polanco, but did not find him and was then invited to drink. After fifteen (15) minutes, they returned to the Vigan Police Station. Then they left, to return to their station in Sta. Catalina but on the way Somera decided to stop by a wake at Cabittaogan. For this purpose, he asked Julian if he could borrow money from Julian’s sister, Marcelita Alibin, which he would donate to the family of the deceased. They therefore stopped by Marcelita Alibin’s house but Julian was given only P50.00 by his sister. Somera thought that the amount was too small and wanted Julian to borrow P500.00. When Julian declined to do so, Somera got angry and started cursing him ("Iyot ni inam" 17), and the two had an altercation. Somera stopped the tricycle, drew his gun with his left hand and pointed it at Julian, who tapped it aside. Diosdado claims that he got scared and so he got off the tricycle and ran away. While he was running away he heard gunshots. He allegedly went to Marcelita Alibin’s house and told her that Julian and Somera were shooting each other. Marcelita’s husband, Jovito Alibin, reported the matter to the barangay captain.
Accused-appellant Julian Rapanut admitted having shot Somera but claims that he acted in self-defense. He corroborates Diosdado’s claim that the latter was unarmed and ran away when the shooting took place. Julian said that he was the one who carried the .38 Cal. revolver in a holster 18 which he claimed got hooked to the armrest of the sidecar as he was stepping out and fell to the ground. This explains why the gun was found on the ground at the side of the sidecar. 19
In a decision dated July 28, 1992, the trial court found both accused-appellants guilty of murder qualified by treachery.
Hence this appeal based on the following assignment of errors:chanrob1es virtual 1aw library
I. The trial court erred in finding that the qualifying circumstance of treachery as alleged in the information was sufficiently established.
II. The trial court erred in not acquitting the accused-appellant Diosdado Rapanut despite strong evidence warranting his acquittal.
III. The trial court erred in not finding that accused-appellant Julian Rapanut killed deceased Amado Somera in legitimate and complete self-defense.
IV. The trial court erred in not appreciating the mitigating circumstance of voluntary surrender on the part of the Accused-Appellants
First. The evidence in this case quite clearly shows both accused-appellants to be guilty of killing Somera on November 3, 1980. Although there is no evidence that Diosdado Rapanut and the other accused-appellant, Julian Rapanut, are related, there is no question that the two were with Amado Somera on the night of November 3, 1980. Diosdado claims, however, that he fled from the scene of the crime before the actual shooting because he got frightened when he saw Somera and Julian drawing their guns. In support of his allegation he relies on the testimonies of Julian Rapanut and Segundino Pagada, Jr. Pagada testified that while he and a friend were walking along Burgos St., a police patrol tricycle bearing Somera, Julian Rapanut and Diosdado Rapanut, passed them by. He heard "loud conversation" between two of the men in the tricycle and as the tricycle stopped, he saw Diosdado alight and run away. Less than two minutes later, Pagada and his friend heard gunshots. Pagada said, however, ‘that the tricycle and the remaining passenger were not visible to him then. 20
The evidence for the prosecution belies this claim of the defense. Maximo Manuel, the eyewitness, testified that he saw the two accused-appellants with firearms drawn and pointed at the body of the fallen Somera right after he heard gunshots. His testimony is corroborated by Cpl. Gascon who testified that when Somera and the accused-appellants dropped by his office he saw Diosdado Rapanut with a gun tucked in his waist. It is on the basis of these testimonies that the trial court found Diosdado liable. The rule is settled that the findings of fact of trial courts, which had the opportunity to observe the demeanor of the witnesses, is entitled to great weight in the absence of anything showing bias, partiality or grave abuse of discretion. 21
Indeed, the location and the number of the gunshot wounds sustained by the victim indicate that there was more than one gunman and confirm the testimony of Maximo Manuel regarding the positions of the accused-appellants in relation to the deceased. Of the six (6) gunshot wounds suffered by the victim, two were located on the back of Somera and one on the right side of his neck. The location of these wounds belies the claim of accused-appellant Julian Rapanut that he alone had shot Somera and that he did so while he was standing in front of him. It was highly improbable for Julian to have caused those wounds unless he went around his victim as he riddled him with bullets.
More importantly, the ballistics examination also shows that the shells found in the vicinity came from the 5.56 M-16 Armalite rifle as well as from the .38 Cal. revolver. The slug recovered from the body of Somera also matched the test slug of the same .3 8 Cal. revolver. It is clear that both the M-16 Armalite rifle and the .38 Cal. revolver were used in shooting Somera. If, as Julian Rapanut said, he only used the M-16 Armalite rifle, it stands to reason that another person must have used the revolver in shooting the victim.
The evidence shows that while this .38 Cal. revolver had been issued to Julian Rapanut, on the night in question Diosdado Rapanut was seen with a gun tucked in his waist band. The probability therefore is that the gun he had that night was Julian’s gun and that the latter gave his gun to Diosdado because Julian was already carrying an M-16-Armalite rifle, while Diosdado, whose own gun had been surrendered for the period of his suspension, had none. In fact, Accused
-appellants have not explained who could have fired the .38 Cal. revolver if according to Julian-Rapanut’s testimony, he only fired the M-16 Armalite rifle 22 as his .38 Cal. revolver allegedly fell from his holster while he was getting off from the sidecar. 23 These circumstances persuade us that Diosdado Rapanut was the one who used the .38 Cal. to shoot Somera. It is true that the paraffin test showed that Diosdado Rapanut’s hands were negative for nitrates, but the NBI forensic chemist said that she could not tell from this circumstance alone that Diosdado Rapanut did not fire a gun.
On the other hand, Julian Rapanut admitted shooting Somera. He claims, however, that he acted in self defense. Having made this admission, the burden rests upon him to prove, by clear and convincing evidence, the existence of the essential requisites of self-defense. For this purpose, he must rely on the strength of his own evidence and not on the weakness of that of the prosecution. 24
More specifically, he must prove (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself. Foremost of these is the requisite that the victim was guilty of unlawful aggression; the absence of this requisite negates the existence of self-defense. 25 It must be positively shown that there was a previous unlawful and unprovoked attack on the person of the defendant which placed him in danger, forcing him to repel the attack and to inflict more or less severe wounds upon his assailant by employing reasonable means to resist the same. 26 Put in another way, unlawful aggression connotes a sudden, unprovoked attack against the person defending himself. There must be a real threat to the life, safety or rights of the person attacked and the peril must be imminent or actual. There must be an actual, sudden and unexpected attack or imminent danger thereof and not merely a threatening or intimidating attitude. 27
The testimony of Diosdado Rapanut fails to show that there was unlawful aggression in this case or that even if there was, it did not cease to exist before Julian Rapanut shot Somera. Diosdado Rapanut said:chanrob1es virtual 1aw library
Q And after the late Amado Somera had stopped the tricycle in that particular place, what transpired next, if any?
A The late Amado Somera was in the act of drawing his gun.
Q When the late Amado Somera was in the act of pulling out his firearm, what did this Julian Rapanut do?
A He tapped the gun of Amado Somera and it was dropped and Julian Rapanut went down from the tricycle. 28
. . . .
Q Now, you knew that Amado Somera drew his gun because you were still behind Amado Somera?
A Yes, sir.
Q And you knew that Julian Rapanut tapped the gun because you were still behind Amado Somera and Julian Rapanut was still inside the side car?
A Yes, sir.
Q You did not try to stop Julian Rapanut?
A No, sir.
Q You did not try to stop Amado Somera?
A No, sir.
Q Now, when Julian Rapanut stepped down the tricycle you did not stop Amado Somera?
A No, sir.
Q When Julian Rapanut stepped down the tricycle you were still behind Amado Somera?
A I also alighted from the motorcycle, sir.
Q When the service pistol of Amado Somera was tapped by Julian Rapanut are you sure that it fell down?
A Yes, sir.
Q When you saw it drop you were still behind Amado Somera?
A Yes, sir. 29
. . . .
Q Now, when you said that Julian Rapanut was inside the sidecar, he was to the right of the late Amado Somera?
A Yes, sir.
Q And you are very sure that the late Amado Somera drew his gun with his left hand?
A Yes, sir.
Q How far was Julian Rapanut to Amado Somera when Amado Somera drew the firearm?
A Like this, sir. (Witness pointing to the chair of the Interpreter, and witness stands indicating a distance of around half foot).
Q In other words, the distance now as you estimated, which is your distance from Mr. Colcol, was the same distance between Amado Somera and Julian Rapanut?
A Yes, sir.
Q Will you please tap the left hand of Mr. Colcol?
A (Witness tapped the hand of the interpreter).
Q That’s how Julian Rapanut tapped it?
A Yes, sir.
Q Now, where did the gun fall?
A I don’t know, sir, where the gun fell. But I am sure that the gun fell. 30
Julian Rapanut lost no time trying to overcome this damaging testimony of his co-accused and tried to explain it away by saying that Somera’s gun fell only after he had been shot. 31 But between his claim and the testimony of Diosdado Rapanut, the latter appears to be more reliable. In the first place, if Somera dropped his gun because he had been shot, it has not been explained why he had to be shot five (5) more times when there was no longer any danger that he would be able to fire his gun. In the second place, if he dropped his gun only after he had been shot six (6) times, it has not been explained why he was not able to fire his gun at all. If accused-appellant Julian Rapanut is to be believed Amado Somera had drawn his gun first. As Julian testified:chanrob1es virtual 1aw library
Q Why did he stop the tricycle?
A Because we were already quarreling with each other and then I tapped his gun because he wanted to shoot me and then I jumped out from the tricycle, I first shot him because I don’t want him that he first shot me. 32
But if Somera had drawn his gun first, how could Julian Rapanut have gotten out of the sidecar and fire his M-16 Armalite rifle without being shot? Moreover, the claim of self-defense is further negated by the location and number of the wounds suffered by the victim. If Julian Rapanut’s aim was to simply repel the aggression, one shot to disable him without killing him would have been sufficient.
Second. We think, however, that the trial court erred in finding that the killing of Amado Somera was attended by treachery. Nobody witnessed the commencement of the attack. The prosecution witness Maximo Manuel said he saw the accused-appellants after the shooting. It was precisely because of the gun reports which he heard which attracted his attention. Circumstances which qualify criminal responsibility cannot rest on mere conjecture, no matter how reasonable or probable but must be based on facts of unquestionable existence. The rule is that such circumstances must be proved as indubitably as the crime itself. 33 Therefore, as in this case, where the lone eyewitness did not see how the attack was carried out and he can not testify on how it began, the trial court cannot merely surmise from the circumstances of the case that treachery attended the commission of the crime. 34
Third. Lastly, we agree with accused-appellants that the mitigating circumstance of voluntary surrender should be considered in their favor. It has been held that this mitigating circumstance may properly be appreciated if the following requisites concur: (1) the offender was not actually arrested; (2) he surrendered himself to a person in authority or to an agent of a person in authority; and (3) his surrender was voluntary. 35 As already noted, Diosdado Rapanut voluntarily went with Lt. Henry Thomas when the latter went to his house and asked him to go with him, 36 while Julian Rapanut asked then Mayor Porfirio Rapanut to facilitate his surrender and eventually went with Lt. Henry Thomas when the mayor brought the latter to where he was staying. All these had taken place before warrants for their arrest were issued. Accused-appellants are, therefore, entitled to the mitigating circumstance of voluntary surrender for what is required is that the offender voluntarily surrender himself to a person in authority or his agents before his actual apprehension. 37
WHEREFORE, the decision of the Regional Trial Court is SET ASIDE and another one is ENTERED, finding accused-appellants Diosdado Rapanut and Julian Rapanut guilty of homicide with the mitigating circumstance of voluntary surrender and no aggravating circumstance and sentencing each of the accused-appellants to suffer an indeterminate penalty of 12 years of prision mayor, as minimum, to 14 years and 8 months of reclusion temporal, as maximum, to indemnify jointly and severally the heirs of the deceased Amado Somera in the sum of P50,000.00 and to pay the costs.
Regalado, Romero, Puno and Torres, Jr., JJ.
1. Presided over by Judge Florencio A. Ruiz, Jr.
2. Sworn Statement of Paul Ramirez, Records, p. 4.
3. Sketch, Records, pp. 9-10.
4. Exh. "A," Records, p. 1.
5. TSN, pp. 29-30, Sept. 9, 1981.
6. TSN, p. 11, Dec. 3, 1981.
8. TSN, pp. 69-71, Sept. 9, 1981.
9. TSN, p. 14, Oct. 28, 1981.
10. TSN, p. 16, Oct. 19, 1981.
11. Direct examination of Maximo Manuel, TSN, pp. 10-18, Aug. 11, 1981.
12. Id., pp. 19; 29-31.
13. TSN, pp. 1-2, Feb. 18, 1982.
14. TSN, p. 25, Aug. 11, 1981.
15. Id., pp. 37-38.
16. Direct examination of Cpl. Reynaldo Gascon, TSN, March 23, 1983; TSN, April 27, 1983.
17. The first word refers to the actual sexual act and the rest refer to mother. Combined the term would be more derogatory than the Tagalog expression "Putang-ina mo."cralaw virtua1aw library
18. TSN, p. 8, April 18, 1989.
19. TSN, p. 6, June 19, 1989.
20. Testimony of Segundino Pagada, Jr., TSN Feb. 5, 1991.
21. People v. Magaluna, 205 SCRA 266 (1992); People v. Quilaton, 205 SCRA 279 (1992).
22. TSN, p. 15, July 7, 1989.
23. Id., p. 16.
24. People v. Boniao, 217 SCRA 653 (1993).
25. Ibid.; People v. Galit, 230 SCRA 487 (1994).
26. People v. Gementiza, 230 SCRA 146, 151 (1994).
27. People v. Galit, supra; People v. Boniao, supra.
28. Direct examination of Diosdado Rapanut, TSN, p. 13, Feb. 21, 1985. (Emphasis added)
29. Cross examination of Diosdado Rapanut, TSN, p. 6, July 6, 1987. (Emphasis added).
30. Cross examination of Diosdado Rapanut, TSN, pp. 6-7, Oct. 27, 1987. (Emphasis added)
31. TSN, pp. 13-14, 21-23, Feb. 7, 1989.
32. TSN, p. 9, April 18, 1989.
33. People v. Genobia, 234 SCRA 699, 709 (1994).
34. People v. Apa-ap, Jr., 235 SCRA 468, 475 (1994); People v. Manuel, 234 SCRA 532, 544 (1994); People v. Lug-aw, 229 SCRA 308 (1994); People v. Cordero, 217 SCRA 1 (1993).
35. People v. Decena, 235 SCRA 67, 79 (1994); People v. Amaguin, 229 SCRA 166, 177 (1994).
36. People v. Alba, G.R. No. 107715, April 25, 1996.
37. People v. Layam, 234 SCRA 424, 433 (1994).