People v. Magbanua : 133004 : May 20, 2004 : J. Azcuna : First Division
[G.R. NO. 133004 : May 20, 2004]
PEOPLE OF THE PHILIPPINES, Appellee, v. GENEROSO MAGBANUA y AHIT, Appellant.
D E C I S I O N
Appellant Generoso Magbanua y Ahit appeals from the January 22,
1998 Decision of the Regional Trial Court of Davao City, Branch 10, in Criminal
Case No. 27-442-92, convicting him of murder.
The information filed against appellant reads:chanroblesvirtua1awlibrary
That on or about June 12, 1992, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned
accused, with treachery and evident premeditation, armed with a gun and with
intent to kill, willfully, unlawfully and feloniously attacked, assaulted and
shot at close range one Remegio Diaz, thereby inflicting upon him mortal wounds
which caused his instantaneous death.1 cralawred
As appellants whereabouts were initially unknown, the warrant of
arrest was served only on June 13,
1996, four years from the time the crime was allegedly committed.2 When arraigned on July 11, 1996,
appellant pleaded not guilty.3 Trial thereafter ensued.
The prosecution relies on the eyewitness accounts of Narciso
Balucos and Narciso Rellin.Medico-legal
officer Dr. Napoleon dela Pea and Salustiana Diaz, the victims mother, also
testified for the prosecution.
Narciso Balucos,4 barrio captain of Dumalag, Baguio, Davao
City, testified that on June 12, 1992, at around 3:30 p.m., he was gathering his copra on a
bridge at Gumalang.Helping him were the
victim and Narciso Rellin.Appellant,
together with his more than ten companions, later approached and congratulated
Balucos for having been chosen as Purok Leader.Shortly thereafter, appellant talked with
hostility to the victim concerning the killing in Lacson, Davao
City, a case which involved
appellant and the victims cousins. Suddenly, appellant pulled out a handgun
from his waist and fired a shot at the creek.Seconds after, while face to face with each other, appellant shot the
victim twice in the face, first at the left cheek, then at the forehead.
Balucos recalled that the muzzle of the gun was only about five inches away
from the face of the victim, who was then standing an arms length away from
appellant.He further narrated that after
the gunshots, he and Rellin ran away out of fear for their lives.
Narciso Rellin,5 also an
eyewitness, testified in corroboration of the testimony of Balucos.From a distance of four meters, he witnessed
appellant shoot at the victim twice in the face at close range.After the second shot at the victim, he ran
off together with Balucos.He added that
the incident happened so fast that the victim did not have a chance to run for
Dr. Napoleon dela Pea,6 the medico-legal officer who conducted the post-mortem examination of
the victim, testified on his findings. The Necropsy Report7 stated, follows:chanroblesvirtua1awlibrary
NAME:REMIGIO DIAZ AGE:36 yrs. old
ADDRESS:Gumalang, Baguio District
PLACE OF AUTOPSY :Angel
DATE OF AUTOPSY: June
TIME OF AUTOPSY:9:30 A.M.
1.Gunshot wound, entrance 1 cm.
circumference, occiput, left trajecting medially downward with exit 2 cm.
circumference maxillary right.
2.Gunshot wound entrance 1 cm.
circumference occiput right trajecting medially downward left with exit 2 cm.
circumference maxillary right [sic].
CAUSE OF DEATH:
Shock due to massive hemorrhage secondary
to gunshot wounds.
(Sgd.) Napoleon dela Pea, M.D.
Medical Officer VI
When asked in court to explain his findings as stated above, Dr.
dela Pea testified that the first injury had an entry wound behind the left
ear and an exit wound above the right jaw, equidistant to the lower end of the
right ear and to the chin.The second
injury had an entry wound behind the right ear and exit wound above the right
jaw,8 equidistant to the lower end of the left ear and to the chin.Contrary to the eyewitnesses claim, he
testified that it appears that the victim was shot from behind, and that the
muzzle of the gun was more than two feet away from the victim.He declared that either of the wounds could
have caused the victims instantaneous death as both appeared to be fatal.
He, however, admitted that he issued the Necropsy Report only in
1996 when he received a subpoena, four years after he conducted the
autopsy.The contents of his report were
lifted from the findings he jotted on a page of his notebook, which the defense
submitted as evidence.9 cralawred
Salustiana Diaz,10 the mother of the victim, testified that she and her husband spent for
the funeral expenses of the victim. She also recalls seeing the victim before
the embalmment with gunshot wounds on his right cheek, left cheek, and
forehead.As proof, she showed a
close-up picture11 of the face of the victim while lying inside a coffin.The picture was taken in her presence by an
unidentified photographer, upon the request of the victims family during the
wake.It showed a wound on the victims
forehead in between the eyebrows, and a sutured wound on the right cheek.She testified that she obtained the picture
from the victims son, Richard Diaz.
Testifying for the defense, on the other hand, were Richard Diaz,
Jesusa Ba, Paquito Calimpas, and appellant.
As its first witness, the defense presented the sixteenyear-old
son of the victim, Richard Diaz.12 To refute the claim that the victim also suffered an injury on the forehead, he
presented another picture13 of the victim taken from the foot of the coffin at a distance from the
photographer.The victims injuries were
not visible from the picture.The young
Diaz testified that the picture he gave his grandmother Salustiana Diaz was a
copy of the same picture he presented in evidence.He declared that no other picture was taken
of his father during the wake, and denied recognizing the dead man on the close-up
picture earlier presented by his grandmother.
The defense next presented Jesusa Ba,14 the victims mother-in-law, who has been supporting the victims widow
and children. She mainly alleged that it was she who spent for the burial
expenses of the victim, in contradiction to Salustiana Diazs claim in her
Appellant Generoso Magbanua15 testified to present his version of the events that transpired on June 12, 1992. At 3:00 p.m., he and his friend Paquito Calimpas were at the
store in Centro Gumalang.A group of
around ten of their friends passed by and invited the two of them to
congratulate Narciso Balucos for having won the election as purok leader.On the way to Balucoss residence, they saw
the latter on the bridge in Gumalang, gathering copra with Narciso Rellin and
the victim. When appellant approached Balucos, the rest of the group went to
the other side of the bridge, except Calimpas and Rellin, who remained near him
and Balucos.When he reached out for a
handshake, Balucos parried his hands and remarked that appellant campaigned for
the opposing candidate.Appellant then
replied that Balucos was not being sport. He then heard a gunshot coming from
the other end of the bridge.Out of fear
for his life, he ran towards his house which was 400 meters away from the
bridge.A few seconds after, while
running, he heard another gunshot.He
recalls seeing his companions also flee the scene, but failed to see who fired
the shot or whether anyone was hit.It
was only the next day that he learned of the victims death and the news that
he was being suspected as the assailant, from passersby who were unknown to
On cross examination, he admitted that he was then the team
leader of the Civilian Home Defense Force in the area, although he added that
he was not in active service at the time, for he was then under
suspension.Having no gun with him at
the time of the incident, he decided to run away for his own safety.When he reached home, he never went out until
the next day, for fear of his life.
Appellant further related that he was surprised that the two
eyewitnesses testified against him after initially assuring him that they were
going to execute affidavits of desistance.When he confronted them about it, they allegedly said that they were
forced to testify by the then trial prosecutor Isaac Robillo, who threatened
them with imprisonment.He added that
his relationship with Prosecutor Robillo was not good, as he had a previous
misunderstanding with a certain Dr. Acosta, who happened to be the prosecutors
Paquito Calimpas,16 one of appellants companions at the time of the occurrence, testified
in corroboration of appellants narration of the shooting incident.After hearing the gunshot coming from the
opposite side of the bridge, which was 15 meters away from where he and
appellant stood, he ran away in panic without looking back. Just like
appellant, he only heard the two gunshots, but did not see who fired the shots
or who got hit.
For rebuttal, the prosecution presented Isaac Robillo,17 the trial prosecutor who took charge at the initial stages of the
trial, to refute appellants claim that he coerced the eyewitnesses to
testify.He admits that Balucos and
Rellin at first executed affidavits of desistance, wherein they manifested that
they are no longer willing to testify in this case after the reconciliation
of the families of the victim and appellant.However, the two witnesses later decided to testify after each receiving
a subpoena, and after Robillo cautioned them that lying under oath may
subject them to prosecution for perjury.Robillo denied any personal interest in the case, and claimed that the
only Dr. Acosta he knows is the brother of his sister-in-law.
Finding the testimonies of the eyewitnesses worthy of belief, the
court a quo convicted appellant of the crime charged.It dismissed the medico-legals contradictory
findings as unreliable andappellants
version as incredible.It also ruled
that the crime was attended by treachery, which qualified the killing to
murder. It thus sentenced appellant, as follows:chanroblesvirtua1awlibrary
WHEREFORE, this Court finds the accused Generoso Magbanua y Ahit,
alias Jun, guilty beyond reasonable doubt of the crime of murder for the
killing of Remegio Diaz and hereby sentences him to reclusion perpetua, and
orders him to indemnify the heirs of Remegio Diaz for his death in the amount
of P50,000.00 as well as to pay the costs.
SO ORDERED.18 cralawred
Hence, the instant appeal.Appellant questions his conviction on the following grounds:chanroblesvirtua1awlibrary
First Assignment of Error
THE TRIAL COURT ERRED IN NOT FINDING THAT
THE TESTIMONIES OF THE TWO ALLEGED EYEWITNESS[ES] ARE IRRECONCILABLY
INCONSISTENT AND CONTRADICTORY BY THEMSELVES AND WITH THEIR AFFIDAVITS, MAKING
THEM SIMPLY INCREDIBLE.
Second Assignment of Error
THE TRIAL COURT ERRED IN HOLDING THAT THE
TESTIMONIES OF THE TWO ALLEGED EYEWITNESSES OF THE PROSECUTION ON THE GUNSHOT
WOUNDS INFLICTED ON THE VICTIM [WHICH ARE] CONTRADICTORY TO THE FINDINGS AND
TESTIMONY OF THE OTHER PROSECUTION WITNESS (THE GOVERNMENT DOCTOR WHO CONDUCTED
THE EXAMINATION AND AUTOPSY ON THE VICTIMS CADAVER),
PREVAIL OVER SAID
FINDINGS AND TESTIMONY OF THE DOCTOR.
Third Assignment of Error
THE TRIAL COURT ERRED IN NOT FINDING THAT
THE EVIDENCE OF THE PROSECUTION IS INSUFFICIENT TO SHOW THE GUILT OF THE
ACCUSED BEYOND REASONABLE DOUBT.
Fourth Assignment of Error
THE TRIAL COURT ERRED IN CONVICTING THE
ACCUSED OF THE CRIME OF MURDER INSTEAD OF ACQUITTING AND ABSOLVING HIM FROM
CRIMINAL AND CIVIL LIABILITY.19 cralawred
Under his second and third assignments of error, appellant points
out that the testimonies of the alleged eyewitnesses regarding the victims
injuries and the respective positions of the victim and appellant during the
shooting are contradictory to the medico-legal findings of the government doctor.Such discrepancy, he claims, sufficiently
raises reasonable doubt on the veracity of the eyewitnesses testimonies.
Indeed, the Court observes the apparent inconsistency between the
eyewitnesses testimonies and the medico-legal findings.According to Balucos, he saw appellant get
shot at the left cheek and at the forehead.Rellin corroborated this by saying that he saw appellant shoot at the
victims face twice.These assertions
were supported by the testimony of the victims mother, who submitted a picture
of the victim showing injuries on the cheek and forehead.The medico-legal findings, however, disclose
the victims injuries to be above the left and right jaws, and none at the
forehead.Moreover, while the
eyewitnesses categorically declared that they saw appellant shoot the victim
frontally at close range, Dr. dela Pea concluded that the assailant shot the
victim from behind, from a distance of more than two feet.
A closer examination at how the medico-legal officer arrived at
his findings discloses a plausible explanation to the contradiction between the
doctors conclusions and the testimonies of the eyewitnesses.The trial court observed that the Necropsy
Report is undated and appears to have been newly issued. When confronted about
this, the government doctor explained that it was his practice not to issue
immediately necropsy reports because he was always busy in his department.He admitted that it was only upon the receipt
of a subpoena in 1996 that he issued the report, the contents of which
he copied from a notebook on which he originally recorded his findings. As
noticed by the trial court, the particular page of his notebook which indicated
the aforesaid findings bore unexplained alterations.To wit, in the description of the entry wound
of the first gunshot injury, it appears that the words occiput and
maxillary were initially interchanged.The same alteration appears in the description of the exit wound.Also, the recorded conclusions on the
notebook failed to state anything about the presence of powder burns, which
would have indicated the distance of the gun from the victim.On the witness stand, however, Dr. dela Pea
categorically declared that there was no indication of powder burns, presumably
from his bare recollection of an autopsy that he conducted four years ago.
Moreover, the Court notes that the Necropsy Report failed to
mention anything about an injury on the victims forehead, which is clearly
shown in the close-up picture submitted by the prosecution.The defense attempted to present evidence to
refute this, to no avail.The second
picture presented by the defense was taken too far from the victims face, and
is not as clear as the first picture.As
for the defense witnesss denial of the authenticity of the first picture, the
trial court had this to say:chanroblesvirtua1awlibrary
.. . Exhibit B is a close-up picture and [it] is very clear
without doubt that it is the same man in the same coffin that is shown in both
pictures as can be appreciated by the amount and thickness of hair of the dead
man in Exhibit 5 and those of the same man in Exhibit B, as well as by the
frame of the glass cover, the green ribbon and blue flowers at the top of the
coffinExhibit B clearly and positively shows [the gunshot wound on the
forehead], and there is no sign that the picture has been falsified or is fake.
The wound in between the eyebrows [is] not visible in Exhibit 5 because there
is a trace of white running from the top of the foreheaddown to the nose in Exhibit 5, which is not
present in the close-up picture, Exhibit B.20 cralawred
It is true that a government doctors post-mortem examination is
presumed by law to have been regularly performed.21 This rebuttable presumption, however, cannot be successfully invoked in the
present case, it appearing that the examining doctor was remiss in the
performance of his duties as a medico-legal officer.The peculiar circumstances obtaining
inevitably open to doubt the accuracy of the doctors findings, especially in
light of the clear, positive and categorical declarations of the eyewitnesses.
As observed by the trial court, the testimonies of the
eyewitnesses, although with minor inconsistencies, categorically and
unequivocally point to appellant as the victims assailant.The pertinent portion of Balucoss testimony,
which was substantially corroborated by Rellin, is quoted, as follows:chanroblesvirtua1awlibrary
Q.Now, when these friends
of Generoso Magbanua approached your group, what did they tell you?chanroblesvirtualawlibrary
A.They congratulated me
for having won as purok leader.
Q.Then what happened?chanroblesvirtualawlibrary
A.He also shook the hands
of Remegio Diaz.
A.And after shaking his
hands, Generoso Magbanua shot Remegio Diaz on his right cheek.
Q.Where else did he shoot
Remegio Diaz, if you know?chanroblesvirtualawlibrary
x x x
Q.Do you know what happened
to Remegio Diaz?chanroblesvirtualawlibrary
A.Well, he fell to the
cement but we did not know what happened to him because we ran away and we did
not look back.22 cralawred
On cross-examination, he remained steadfast in his narration of
Q.Now, how did Magbanua
fire the shot at Remegio Diaz?chanroblesvirtualawlibrary
A.He shot him in his face.
Q.Were you really able to
see the gun of Magbanua at the time that it was fired at the face of Diaz?chanroblesvirtualawlibrary
Q.Now, what was, more or
less, the distance from the tip of the gun or muzzle to the face of Remegio?chanroblesvirtualawlibrary
A.As near as this, sir.
About five inches, Your Honor.
About that distance, Your Honor.
Q.You really saw that part
of the face that was hit?chanroblesvirtualawlibrary
A.Face. He was hit on his
left cheek bone.
A.And then successive
fires were shot again and [he was] hit on the forehead.
Q.You sure about that?chanroblesvirtualawlibrary
A.That is what I saw, sir.23 cralawred
Appellant seeks to interject doubt on the eyewitnesses
testimonies by pointing out inconsistencies on certain details, and
discrepancies with the affidavits executed by the witnesses.With regard to the variances in the testimonies,
it bears stressing that minor inconsistencies enhance the credibility of the
witnesses, for these remove any suspicion that their testimonies were contrived
or rehearsed.24 The fact that the statements of the two prosecution witnesses differ on some
minor details does not in any way affect their credibility.Persons who witness an event may perceive it
from different points of reference, hence they may have different accounts of
how the incident took place.What is
important is that their testimonies reinforce each other on the essential facts
and that their versions corroborate and substantially coincide with each other
to make a consistent and coherent whole.25 cralawred
As regards the alleged discrepancies of the witnesses
testimonies with their affidavits, suffice it to say that oral testimony
commands greater weight than a mere affidavit.26 For, oftentimes, affidavits taken ex parte do not reflect precisely what
the declarant wants to impart, as they are usually prepared by other persons
who use their own language in writing the statements.27 Note must also be taken of the fact that the witnesses in this case were
testifying on an incident which had occurred four years earlier.Error-free testimonies thus cannot be
expected from them, considering the limitations of human memory.
Appellant attempts to impute ill motive upon the prosecution by
alleging that the trial prosecutor, who he claims had an axe to grind against
him, forced the eyewitnesses to implicate him.He claims that the trial prosecutor was seeking vengeance for the
latters relative by affinity, with whom appellant allegedly had a
misunderstanding, and who happened to be the eyewitnesses employer.The Court has held that while motive, bias,
or interest of the witness in testifying affects a witnesss credibility, the
supposed presence of improper personal motives on the part of a witness to
testify against the accused should be supported by satisfactory proof in order
that his testimony may be considered biased.28 In the present case, as aptly found by the court a quo, the defense
failed to present evidence to support the imputation of ill motive other than
hearsay evidence and mere inference of personal interest on the part of
appellants testimony was sufficiently refuted by Prosecutor Robillos
testimony, which belied appellants allegations.Given, therefore, the absence of evidence
that the prosecutions principal witnesses were actuated by ill motives, their
testimony is entitled to full faith and credit.29 cralawred
In comparison to the strong testimonial evidence of the
prosecution, appellants defense of denial miserably pales.The trial court found it unnatural for
appellant, who was a Civilian Home Defense Force leader, to scamper away from
the commotion without even looking back. In its Decision, the court a quo stated
that: It is apparent that the accused made up such incredible version because
he could not point to anyone else on the bridge who shot Diaz as only he did
it, as testified to positively by two eyewitnesses who were very near them on
the bridge at the time.30 It is elementary that denial, if unsubstantiated by clear and convincing
evidence, is a negative and self-serving evidence which has far less
evidentiary value than the testimony of credible witnesses who testify on
affirmative matters.31 cralawred
In the end, the rule is settled that where the conviction of an
accused hinges on the credibility of the witnesses and the veracity of their
testimonies, the findings of the trial court are given a high degree of
respect.32 This is so because the assessment of the credibility of witnesses is best made
by the trial court given its untrammeled opportunity to observe their demeanor
on the witness stand.33 Hence, unless some fact of weight and substance has been overlooked,
misapprehended or misinterpreted, the trial courts findings on such matters
are binding and conclusive on appellate courts.34 In this case, none of the arguments raised by appellant presents any compelling
reason for the Court to disregard the evaluation of the court a quo.
The Court next resolves the issue on the presence of treachery.
In finding the presence of treachery, the court a quo ruled that:chanroblesvirtua1awlibrary
The shooting of Remegio Diaz by the accused was attended by
treachery in light of the evidence showing that, when the latter and his more
than ten companions went to the bridge where Balucos, Diaz and Rellin were
gathering the copra of Balucos, there was no hostile move on the part of the
accused to forewarn Diaz; that on the contrary, they congratulated Balucos for
having been elected as purok leader; and that the shooting, although frontal,
was sudden, unexpected and so fast [thereby] rendering Diaz unable to run or
defend himself.35 cralawred
Time and again, the Court has stated that treachery cannot be
presumed; it must be proven as conclusively as the killing itself.36 It is present when two elements concur, namely: (1) that the means, methods,
forms of execution employed gave the person attacked no opportunity to defend
himself or to retaliate; and (2) that such means, method or forms of execution
were deliberately and consciously adopted by the accused without danger to his
In the present case, the first element was sufficiently shown by
the suddenness of the attack, giving the victim no opportunity to repel it or
defend himself.The prosecution
established that appellant, while conversing with the victim, suddenly pulled
out a concealed gun from his waist, shot at the creek and, seconds after, shot
the victim at the face. While it may be true that, as the defense points out,
appellant talked to the victim with hostility shortly before the shooting,
there was no evidence that the confrontation was heated or intense, or that
appellant was provoked to shoot the victim.38 cralawred
It must be noted, however, that mere suddenness of the attack
would not, by itself, constitute treachery.39 There is a further need to prove that appellant consciously and deliberately
adopted the mode of attack to insure execution without risk to himself.The circumstances surrounding the case negate
the presence of this second element.It
was established that the shooting occurred in broad daylight, in an open area,
with more than ten people around.The
victim then was in the company of two of his friends, who could have come to
his aid at anytime. Verily, if appellant wanted to insure that no risk would
come to him, he could have chosen another time and place to shoot the victim.40 cralawred
For failure of the prosecution to prove treachery or any other
circumstance that would qualify the killing to murder, the Court finds that
appellant should only be held liable for homicide.41 The penalty imposed for homicide in Article 249 of the Revised Penal Code is reclusion temporal.Considering the absence of
any aggravating or mitigating circumstances and applying in his favor the
Indeterminate Sentence Law, appellant should be sentenced to suffer the penalty
of eight years and one day of prision mayor medium, as minimum, to
fourteen years and eight months and one day of reclusion temporalmedium,
as maximum.42 cralawred
Finally, on the matter of appellants civil liability, prevailing
jurisprudence dictates the imposition of moral damages in the amount of
P50,00043 and temperate damages in the amount of P25,000.44 The P50,000 indemnity fixed by the court a quo is sustained.
WHEREFORE, the appealed Decision is hereby MODIFIED.Appellant is found GUILTY beyond reasonable doubt of homicide and is sentenced to
suffer an indeterminate penalty of eight years and one day of prision mayor
medium, as minimum, to fourteen years and eight months and one day of reclusion temporalmedium, as maximum.He is
further ordered to pay the heirs of the victim the amounts of
civil indemnity, P50,000 as moral damages, and P25,000 as
temperate damages. Costs de oficio.
Panganiban, (Acting Chairman),
Ynares-Santiago, and Carpio, JJ., concur.
Davide, Jr., C.J., (Chairman), on
4 TSN, August 8, 1996, pp.
5-8; TSN, August 22, 1996,
August 12, 1996, pp. 2-40.
6 TSN, August 22, 1996, pp.
3-44; TSN, October 7, 1996,
7 Records, p. 76, Exhibit A.
8 TSN, April
2, 1996, p. 29.
10 TSN, September 24, 1996,
pp. 2-12; TSN, March 11, 1997,
p. 77, Exhibit B.
12 TSN, April 30, 1997, pp.
13 Records, p. 106, Exhibit 5.
note 11, at 15-25.
15 TSN, September 3, 1997, pp.
16 TSN, July 3, 1997, pp. 2-13.
17 TSN, November 26, 1997,
21 People v. Tamayao, 120 SCRA 412 (1983).
22 TSN, August 8, 1996, pp.
23 TSN, August 22, 1996, pp.
34 People v. Guihama, supra, note 31.
supra, note 29.
42 Luces v. People, supra, note 36.
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