July 2005 - Philippine Supreme Court Decisions/Resolutions
Philippine Supreme Court Jurisprudence
Cabanlig v. Sandiganbayan : 148431 : July 28, 2005 : J. Ynares-Santiago : First Division : Dissenting Opinion
FIRST DIVISION
[G.R. NO. 148431 July 28, 2005]
SPO2 RUPERTO CABANLIG, Petitioners, v. SANDIGANBAYAN and OFFICE OF THE SPECIAL PROSECUTOR, Respondents.
DISSENTING OPINION
YNARES-SANTIAGO, J.:
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Cabanlig was convicted of homicide based on the findings of the Sandiganbayan that he exceeded his duty when he shot Valino without warning.1 Since Cabanlig saw Valino grab Mercado's armalite rifle, the Sandiganbayan ruled that he had no right to shoot Valino without giving him the opportunity to surrender.2 Citing the General Rules of Engagement of the PNP, the Sandiganbayan held that force and firearms shall be used as a last resort, and only when necessary and reasonable to subdue or overcome the clear and imminent danger posed, or the resistance being put up by the malefactor.3 It disregarded Cabanlig's claim that Valino was turning around when shot as it was not in accordance with the wounds suffered by Valino.4 It also found that Valino was shot at close range, not more than three feet, because of the tattooing around the entrance of the gunshot wound on the head.5 ςrνll
The ponencia however, finds that Cabanlig was justified in killing Valino because he placed the lives of the policemen in grave danger when he grabbed the armalite rifle of Mercado.6 It declares that the policemen would have been sitting ducks inside the jeep had Cabanlig not immediately shot Valino.7 Cabanlig was reacting to imminent danger8 and a warning from him would have been pointless and would have cost their lives.9 It points out the Valino was sufficiently warned when Mercado shouted 'hoy when his rifle was grabbed.10 Also, Cabanlig fired one shot first followed by four more.11 The ponencia declares that at one point Valino was facing the police officers,12 as shown by the location of his chest wound,13 thus warranting a quick response.
With due respect, we cannot subscribe to the conclusion that the policemen would have been 'sitting ducks' or easy targets if Cabanlig did not immediately gun down Valino. It is well to note that Valino who was a suspected robber was being escorted by five heavily armed policemen on their way to retrieve the stolen items consisting of a flower vase and a clock. Three of the policemen were armed with M-16 rifles while two were equipped with .38 pistols.14 ςrνll
The conclusion that warning Valino would cost the lives of the policemen lacks basis and purely speculative. There were five police officers guarding Valino and four of them were armed with high powered guns. The five policemen were up against a lone malefactor who was not even shown to be adept in handling an M-16 armalite rifle. Besides, Cabanlig was aware when Valino grabbed Mercado's rifle. He was thus prepared to repel or overcome any threat posed by Valino. As the records show, Valino ran away from the vehicle after he grabbed the armalite rifle. There was no evidence that it was aimed at the police officers hence there is no imminent danger to speak of.
We take exception to the claim that Valino faced the police officers during the encounter. Dr. Marcelo Gallardo, Jr. testified that the chest wound did not indicate that Valino faced the police officers during the shooting. On the contrary, he said that the assailant was either at the back or the side of the victim, thus:ςηαñrοblεš �νιr†υαl �lαω �lιbrαrÿ
PROS. TABANGUIL
Q. Doctor, in your findings there are three (3) gunshots wound, numbered 1, 2 and 3, is that correct?chanroblesvirtualawlibrary
A. Yes, sir.
Q. Now, we go to gunshot wound no. 1. 'Gunshot Wound, entrance, 0.5 cm x 1.5 cms in size, located at the left side of the back of the head. The left parietal bone is fractured. The left temporal bone is also fractured. A wound of exit measuring 2 cms x 3 cms in size is located at the left temporal aspect of the head. Now, will you demonstrate to the Honorable court where is this wound located?chanroblesvirtualawlibrary
A. The wound of entrance is located at the top of the head. In this part of the head.
PJ GARCHITORENA
Witness is indicating a position above his left temple of his forehead.
PROS TABANGUIL
Q: In that wound, will you please tell the Honorable Court the position of the assailant in relation to the victim?chanroblesvirtualawlibrary
A: The assailant must be at the back of the victim in order to produce the entrance at the back of the head, sir.
Q: Would you consider that wound a fatal wound?chanroblesvirtualawlibrary
A: Yes, sir.
Q: Now, Gunshot Wound No. 2: entrance 0.5 cm in diameter, located at the left side of the chest about three inches below the left clavicle. The wound is directed medially and made an exit wound at the right axilla measuring 2x2 cms in size. Will you demonstrate to the Court the location of this wound, the entrance and the exit?chanroblesvirtualawlibrary
A: The wound of entrance is located here below the clavicle then made an exit wound on his right side, right axilla.
PROS TABAGUIL
Witness demonstrating using his body as a demonstration, your Honor.
Q: Now, in this wound, what would be the position of the assailant in relation to the victim?chanroblesvirtualawlibrary
A: The assailant must be on the left side of the victim in order to produce that wound, sir.
PJ GARCHITORENA
Q: Before it exit is that the front part of the armpit or the rare part of the armpit?chanroblesvirtualawlibrary
A: In the middle, sir.
Q: But the way you are pointing it, it seems to be closer to the chest rather than the shoulder?chanroblesvirtualawlibrary
A: It is a little bet front of the oxilla, your Honor.
PROS TABANGUIL
Q: So in that case the assailant must be a little bet backward to the victim?chanroblesvirtualawlibrary
A: No, on the lateral side.
Q: 'Gunshot Wound No. 3, entrance, 0.5 cm in diameter located at the left lower back above the left lumbar. The left lung is collapsed and the liver is lacerated. Particles of lead was recovered in the liver tissues. No wound of exit. Will you demonstrate to this Honorable Court where is that wound?chanroblesvirtualawlibrary
...
PROS TABANGUIL
Q: In the case of this wound no. 3, what would be the position of the assailant to the victim?chanroblesvirtualawlibrary
A: The assailant must have been at the left side but a little bit at the back.
Q. Now, these wounds, 2 and 3, would you consider these wounds a fatal wound?chanroblesvirtualawlibrary
A: Yes, sir.15
...
ATTY. JACOBA
Q: You stated also Doctor, that the possible position of the assailant as regards gunshot wound no. 1 was behind the victim a little to the left, is that correct?chanroblesvirtualawlibrary
A: No, I did not say that it was a little to the left. Its just at the back.16 ςrνll
We concede that the police officers were in danger after Valino grabbed the rifle although the same was not imminent. It appears that Valino was running away from the jeep and there is no proof that he, even at one point, faced the police officers and aimed his rifle towards them. Even Cabanlig testified that:
Q: When you fired the first shot, what was the position of Jimmy Baleno?chanroblesvirtualawlibrary
A: He was running away from us, sir and he was in a position of about to rotate umikot.
JUSTICE SANDOVAL:
Q: What do you mean by 'umikot?chanroblesvirtualawlibrary
A: He would be turning towards my direction, sir.
Q: But he was not able to face you, is that correct?chanroblesvirtualawlibrary
A: Yes, sir.
PJ:
Q: Was he able to face you?chanroblesvirtualawlibrary
A: No, sir.17 ςrνll
SPO2 Mendoza's testimony that he warned Valino by shouting 'hoy deserves no consideration. Assuming that it was uttered, there is no proof that it was heard by Valino. It appears that it was more of a reflex reaction from Mendozawhen his rifle was grabbed rather than a warning issued to Valino.
The testimony of Mendoza is incredible, if not absurd to pretend to be unaware of what transpired after his gun was allegedly taken by Valino, or that there appears to be no struggle between him and Valino when the latter attempted to grab his weapon. As a police officer, Mendozaoffered no resistance when Valino stole his gun. Thus:
Atty. Jacoba:
Q: But when Jimmy Valino grabbed your gun, was it with the left or right hand?chanroblesvirtualawlibrary
A: I do not know which hand he used, sir.
Q: Do you remember if you were pushed by Jimmy Valino before grabbing your gun?chanroblesvirtualawlibrary
A: No, sir.
Q: So Jimmy Valino was able to jump out of the vehicle with your gun?chanroblesvirtualawlibrary
A: Yes, Your Honor.
Q: Did he point the gun towards your direction?chanroblesvirtualawlibrary
A: I did not notice, sir.
Q: Did you notice if Jimmy Valino was trying to cock the gun?chanroblesvirtualawlibrary
A: I did not notice, sir.
Q: Did you notice when Ruperto Cabanlig fired the first shot on Jimmy Valino whether Jimmy Valino was facing the vehicle or his back was towards the vehicle?chanroblesvirtualawlibrary
A: I did not notice whether he was facing us, sir.18
...
Q: Now, did you notice what was the position of Jimmy Valino when he was first shot by Ruperto Cabanlig, was he running away from the jeep or was he facing the jeep?chanroblesvirtualawlibrary
A: I do not know what his position, Your Honor.19 ςrνll
That Cabanlig first fired a shot followed by four more shots could not be considered sufficient warning. The succession of the shots was a mere one or two seconds thus giving no ample time for Valino to surrender. Besides, as testified to by Cabanlig, he was giving no warning at all because the shots were directly aimed at Valino.
ATTY. FAJARDO:
Q: Could you tell more details on that how this incident happened?chanroblesvirtualawlibrary
A: We had just crossed the PNR bridge, the road was in a very bad way at that time, the driver was driving slowly and that is where he took the gun away from Mercado and jumped out of the vehicle and that is the time I was compelled to shoot him.
Q: How many shots did you fire?chanroblesvirtualawlibrary
A: Five (5) shots, sir.
Q: What weapon?chanroblesvirtualawlibrary
A: M-16, sir.
Q: The first five (5) shots that you fired where did you aim?chanroblesvirtualawlibrary
A: It was toward him, sir.
Q: And you were not sure whether you hit him or not or you do not know where you hit him?chanroblesvirtualawlibrary
A: I am not sure exactly where I had hit him, sir but I got the impression that he was turning around to shoot me (witness making a gesture as if somebody is holding a firearm) so I fired some more shots at him.
JUSTICE SANDOVAL:
Q: What was the weapon grabbed by Baleno?chanroblesvirtualawlibrary
A: M-16, Your Honor.
Q: How about your other police companions what kind of weapons were they carrying at that time?chanroblesvirtualawlibrary
A: Abesamis and Esteban were carrying 38 caliber, Mercado had an M-16 rifle and the rest of us were carrying M-16. Your Honor.
ATTY. FAJARDO:
Q: You said that you fired several shots, how did you fire, did you aim it to the victim?chanroblesvirtualawlibrary
A: Yes, sir the second shot was aimed at him, sir.
JUSTICE SANDOVAL:
Q: Why did you aim at him?chanroblesvirtualawlibrary
A: Because he had grabbed the weapon sir, and he could kill anyone of us.20 ςrνll
The sequence of events adverted to by the ponencia is not supported by the records. Since the examining physician could not even determine which of the three wounds was inflicted first, there is no basis to conclude that this is 'the most probable and logical scenario'
Valino was somewhat facing the policemen when he was shot, hence, the entry wound on Valino's chest. On being hit, Valino could have turned to his left almost falling, when two more bullets felled Valino. The two bullets then hit Valino on his lower left back and on the left side of the back of his head, in what sequence, we could not speculate on. At the very least, the gunshot wound on Valino's chest should have raised doubt in Cabanlig's favor.21 ςrνll
As Dr. Gallardo had testified:
ATTY. JACOBA
Q: Doctor, you are not in a position to state which of these wounds were inflected first?chanroblesvirtualawlibrary
A: I am not sure, sir.
Q: In other words you cannot tell which wound was inflected first?chanroblesvirtualawlibrary
A: No sir.22 ςrνll
In Escara v. People,23 we declared that factual questions are not reviewable by the Supreme Court in a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Civil Procedure. There is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. In appeals to this Court from the Sandiganbayan only questions of law may be raised, not issues of fact.
The issues raised by petitioner, to wit: whether or not he issued warnings before shooting Valino and whether the latter was facing him when shot, are issues of fact and not of law.
It is an established doctrine of long standing that factual findings of the trial court on the credibility of witnesses are accorded great weight and respect and will not be disturbed on appeal. The trial court is in a unique position of having observed that elusive and incommunicable evidence of the witnesses' deportment on the stand while testifying, which opportunity is denied to the appellate courts. Only the trial judge can observe the furtive glance, blush of conscious shame, hesitation, flippant or sneering tone, calmness, sigh or the scant or full realization of an oath - all of which are useful for an accurate determination of a witness' honesty and sincerity.24 ςrνll
In People v. Lagata,25 we held that:
While custodians of prisoners should take all care to avoid the latter's escape, only absolute necessity would authorize them to fire against them. Theirs is the burden of proof as to such necessity. The summary liquidation of prisoners, under flimsy pretexts of attempts of escape, which has been and is being practiced in dictatorial systems of government, has always been and is shocking to the universal conscience of humanity.
Human life is valuable, albeit, sacred. Cain has been the object of unrelentless curse for centuries and millennia and his name will always be remembered in shame as long as there are human generations able to read the Genesis. Twenty centuries of Cristianity have not been enough to make less imperative the admonition that "Thou shalt not kill," uttered by the greatest pundit and prophet of Israel. Laws, constitutions, world charters have been written to protect human life. Still it is imperative that all men be imbued with the spirit of the Sermon on the Mount that the words of the gospels be translated into reality, and that their meaning fill all horizons with the eternal aroma of encyclic love of mankind. [Emphasis supplied]26
Cabanlig admitting killing Valino. Therefore, the burden of proving that the killing was reasonable and necessary rests on him. To our mind, Cabanlig failed to discharge this burden. He also failed to convincingly show that there was a misapprehension of facts by the Sandiganbayan, hence, its findings must be accorded respect and weight.
ACCORDINGLY, I vote to DISMISS the petition and AFFIRM the decision of the Sandiganbayan finding Cabanlig guilty of homicide.
CONSUELO
YNARES-SANTIAGO
Associate Justice
Endnotes:
1 Rollo, p. 47.
2 Id.
3 Id. at 48.
4 Id. at 49.
5 Id. at 51.
6 Draft Decision, p. 14.
7 Id. at 15.
8 Id. at 18.
9 Id. at 19.
10 Id.
11 Id.
12 Id.
13 Id. at 22.
14 TSN, Testimony of SPO2 Cabanlig, February 10, 1997, p. 27.
15 TSN, Testimony of Dr. Gallardo, July 27, 1994, pp. 12-15.
16 Id. at 18.
17 TSN, Testimony of SPO2 Cabanlig, February 10, 1997, p. 54.
18 TSN, Testimony of SPO2 Mercado, July 11, 1996, pp. 39-40.
19 Id. at 41.
20 TSN, Testimony of SPO2 Cabanlig, February 10, 1997, pp. 26-27.
21 Draft Decision, p. 22.
22 TSN, Testimony of Dr. Gallardo, July 27, 1994, pp. 19-20.
23 G.R. No. 164921, 6 July 2005.
24 Id.
25 83 Phil. 150 (1949).
26 Id. at 161.
