FIRST DIVISION
PEOPLE OF THE
PHILIPPINES,
Appellee,
G.R.
No.
122109
June 25, 2003
-versus-
JESUS TORIO,
Appellant.
chanroblesvirtualawlibrary
D E C I S I O N
AZCUNA, J.:chanroblesvirtuallawlibrary
For review is the Decision[1]
of the Regional Trial Court of Pangasinan, Branch 38, in Criminal Cases
Nos. L-5188 and L-5189, finding herein Appellant, Jesus Torio, alias
"Tigno,"
guilty of Murder and Illegal Possession of Firearm and Ammunition.
On October 25, 1994,
two (2) informations against appellant were filed:
Criminal Case No. L-5188
That on or about the
12th day of August 1994 in the evening, in barangay Bolaoen,
municipality
of Bugallon, province of Pangasinan, Philippines and within the
jurisdiction
of this Honorable Court, the above-named accused armed with a long
firearm,
with intent to kill and with treachery, did the[n] and there,
willfully,
unlawfully and feloniously attack, shoot and hit Brgy. Capt. Ramon
Paulo,
inflicting upon him the following injuries:chanrobles virtual law library
Gunshot wounds:
1. ENTRANCE:
irregular, edges inverted, also modified by incision and fracture of
the
bone, occipital area, 17.0 cms. directed forwards, upwards and to the
left,
involving the skin and underlying soft tissues, fracturing the
occipital
bones into 2 halves, into the cranial cavity, ploughing through the
occipital
and pariental lobes of the left brain, shattering the temporo-pariental
bone and subsequently making an EXIT; 20.0 cms. X 18.0 cms. irregular
at
the left side of the ear, where brain tissues also eviscerated.cralaw:red
2. ENTRANCE:
0.8 cms. X 0.6 cms. ovaloid, edges inverted, chest, posterior, level of
the 2nd ICS, subscapular line, left, 34.0 cms. above the left heel and
13.0 cms. from the posterior median line, directed forwards and
downwards,
involving the skin and underlying soft tissues, into the left thoracic
cavity, puncturing the upper lobe of the left lung, fracturing the 2nd
rib, left and finally making an EXIT; 1.0 cm. x 1.0 cm. irregular,
edges
everted, at the anterior chest wall, left, level of the 2nd ICS,
anterior
axillary line, 129.0 cms. above the left heel and 13.0 cms. from the
anterior
median line.cralaw:red
3. ENTRANCE:
0.9 cms. X 0.5 cms. ovaloid, edges inverted, Chest, posterior, level of
the 9th ICS, posterior axillary line, left, 133.0 cms. above the left
heel,
and 19.0 cms. from the posterior median line, directed forwards,
downwards
and medially, involving the skin and underlying soft tissues, into the
left thoracic cavity, nicking the lower lobe of the left lung, bursting
the diaphragm, into the abdominal cavity, lacerating the stomach and
finall[y]
making an EXIT; 1.0 cm. x 1.0 cm. anterior abdominal wall, left, 103.0
cms. above the left heel and 17.0 cms. from the anterior median line.cralaw:red
4. ENTRANCE:
0.7 cms. X 0.6 cms. ovaloid, edges inverted, buttocks, left, 97.0 cms.
above the left heel, and 15.0 cms. from the posterior median line,
directed
forward, involving the skin and underlying soft tissues, punching a
hole
thru the hip bone, left, into the abdominal cavity, nicking a part of
the
small intestine and finally making an EXIT; 1.0 cm. x 1.0 cm. lumbar
area,
left, 97.0 cms. above the left heel and 15.0 cms. from the anterior
median
line.cralaw:red
5. ENTRANCE:
0.8 cm. x 0.6 cm., ovaloid, edges inverted, popliteal area, left, leg,
directed forward, involving the skin and underlying soft tissues,
fracturing
the left tibia and finally making an EXIT; modified by incision just
below
the left knee.chanrobles virtual law library
6. ENTRANCE:
posterior surface, lower leg, left, edges inverted, directed downward,
involving the skin and underlying soft tissues and then making an EXIT;
plantar surface, left foot.cralaw:red
COMMINUTED FRACTURE,
left skull.cralaw:red
HOMOTHORAX, Moderate,
left
CAUSE OF DEATH: Multiple
gunshot wounds, head and trunk. which injuries directly cause[d] his
death,
to the damage and prejudice of the heirs of the said Brgy. Capt. Ramon
Paulo.chanrobles virtual law library
CONTRARY to Art. 248
of the Revised Penal Code.[2]
Criminal Case No. L-5189
That on or about the
12th day of August 1994 in the evening, in barangay Bolaoen,
municipality
of Bugallon, province of Pangasinan, Philippines and within the
jurisdiction
of this Honorable Court, the above-named accused, did then and there,
willfully,
unlawfully and feloniously have in his possession, custody and control
one (1) long firearm without first securing the necessary permit and or
licensing from the lawful authorities to possess the same which he used
in shooting to death Barangay Captain Ramon Paulo.cralaw:red
Contrary to Presidential
Decree No. 1866.[3]
When arraigned on November
23, 1994, appellant pleaded not guilty to both informations.[4]
Trial then ensued.cralaw:red
The first witness for
the prosecution was Amalia (Alma) Paulo, the victim’s daughter, who
testified
mainly on the aspect of damages.[5]
Alma Paulo testified that the victim was forty-five years old at the
time
of his death, was the incumbent Barangay Captain of Barangay Bolaoen,
Bagallon,
Pangasinan and was a driver by occupation earning P1,000 per week, or
P4,000
per month.cralaw:red
Alma Paulo also testified
that, in connection with her father’s death, the victim’s heirs spent
P16,000
for the eight days of vigil, P9,500 for funeral services, P2,600 for
the
tomb, P600 for the church rites and P7,000 for lompos.[6]
In connection with the prosecution of the cases, the victim’s heirs
spent
P1,000 for exhuming the victim’s cadaver and P15,000 for obtaining the
services of a private prosecutor, plus P500 per appearance fee.cralaw:red
In addition, Alma Paulo
testified that the heirs suffered moral damages, which she quantified
at
P100,000.cralaw:red
The second witness for
the prosecution was John Paulo, half-brother of the victim on his
father’s
side.[7]
John Paulo testified
that around 11:00 p.m. on August 12, 1994, he, together with Marlon
Cagaoan,
were on their way to the house of the victim. They had just come
from a wake, attended also by the victim, who instructed them to spend
the night at the latter’s house, as they were supposed to erect
electric
posts along the barangay road the following morning. He narrated
that while they were walking on top of a dike, fifty meters from the
house
of the victim, a motorcycle passed by headed in the same direction.
Astride
the motorcycle was the victim, riding in tandem with the driver, Alex
Torio.chanrobles virtual law library
When the motorcycle
was about six meters in front of them, John Paulo suddenly saw
appellant
stand up and shoot the victim from behind, using a long firearm.
Thereafter, appellant ran towards the north. John Paulo also
described
the scene stating that at the time of the shooting, appellant was on
the
left side of the dike about four meters in front of them and two meters
behind the motorcycle. He was able to identify appellant because
of the illumination coming from the headlight of the motorcycle.cralaw:red
After the shooting,
John Paulo and Marlon Cagaoan immediately returned to the wake to
inform
everyone about the incident. However, John Paulo refrained from
divulging
the identity of the assailant because he was afraid of the relatives of
appellant. He revealed the identity of the assailant the
following
day only to his father, who advised him to keep quiet. It was
only
on August 22, 1994, or ten days after the incident, did John Paulo,
accompanied
by his father, make a statement to the National Bureau of Investigation
(NBI) implicating assailant.cralaw:red
The prosecution next
presented SPO1 Bernardo Cerezo, the Philippine National Police
investigator
who conducted a spot investigation of the crime scene.[8]
Bernardo Cerezo testified
that he was on duty on the night of August 12, 1995 when he received a
report that Barangay Captain Ramon Paulo had been shot and
killed.
Upon receipt of the report, he and four other police officers proceeded
to the crime scene. He described how he found the victim’s body
in
a kneeling position on top of a fallen motorcycle and that he found six
empty M-16 shells about two meters away from the body. He also
identified
several photographs taken at the crime scene showing the body of the
victim
and the empty shells.[9]
On cross-examination,
Bernardo Cerezo admitted that their initial investigation yielded seven
other suspects and that Alex Torio, the driver of the motorcycle, was
questioned
but did not identify the assailant. He also admitted having
investigated
John Paulo the day after the shooting but that the latter claimed not
to
know the assailant.cralaw:red
The fourth witness for
the prosecution was Marlon Cagaoan, who corroborated the testimony of
John
Paulo.[10]
Marlon Cagaoan testified
that in the evening of August 12, 1994, he and John Paulo were walking
on top of the dike going westward. They had just come from a
wake,
attended also by the victim who told them to go ahead as he will be
riding
a motorcycle driven by Alex Torio. While walking, the
victim
and Alex Torio, on the motorcycle, eventually caught up with
them.
When they where side by side with the motorcycle, the headlight of the
motorcycle revealed appellant in front holding a gun. Seeing this,
Marlon
Cagaoan and John Paulo quickly hid on the slope of the dike. From
a distance of about six meters from the motorcycle, they saw appellant
shoot the victim. The motorcycle, together with the victim, fell
while Alex Torio was able to run away. After the shooting,
appellant
first approached the victim and then ran away towards the north.cralaw:red
As soon as appellant
left, Marlon Cagaoan and John Paulo got up from the slope and went back
to the wake where they informed everyone about the shooting.
They,
however, withheld the identity of the assailant. The following day
Marlon
Cagaoan disclosed the identity of the assailant only to Alma Paulo, who
advised him to keep quiet while she reports the matter to the
NBI.
On August 24, 1994, or twelve days after the shooting, Marlon Cagaoan,
accompanied by Alma Paulo, gave his statement to the NBI implicating
appellant
as the assailant.chanrobles virtual law library
Marlon Cagaoan further
testified that several persons, namely: (1) Evelyn Fernandez, (2)
Carlos
Jimenez, an ex-Barangay Captain of barangay Balococ, Lingayen,
Pangasinan,
(3) Carlos Jimenez’s wife, Carmen and (4) a certain Lilia paid him a
visit
in the house of his uncle and asked him not to testify against
appellant.
In consideration for his silence, he was given P250 and a half cavan of
rice. Marlon Cagaoan took the money and the rice and went to Manila.
However,
his conscience bothered him and so he decided to testify.cralaw:red
Marlon Cagaoan also
testified that sometime in October 1994, he met with Joel Torio,
brother
of appellant, at the Farmers Market in Cubao, Quezon City. In the
meeting, he was offered P15,000 as consideration for not testifying
against
appellant. Marlon Cagaoan refused to accept the money, saying that he
wanted
to give justice to the victim.cralaw:red
Orlando Concepcion was
the prosecution’s fifth witness.[11]
His testimony was offered to prove that appellant knows how to shoot a
firearm. Orlando Concepcion testified that he had been
accidentally
shot in the leg by appellant on April 20, 1988, causing it to be
amputated.
However, he admitted not having filed a case against appellant.cralaw:red
The sixth witness for
the prosecution was Daido Ferrer.[12]
Daido Ferrer testified that he was a cell mate of appellant at the
provincial
jail and that, while in jail, appellant admitted to him that he killed
the victim as an act of revenge against the Paulos for the killing of
his
father.cralaw:red
The seventh witness
for the prosecution was Dr. Ronaldo Bandonill, the NBI medico-legal
officer
who exhumed the body of the victim and conducted an autopsy.[13]
He testified that the victim suffered six gunshot wounds. The
wounds
were found at the back of the left side of the head, on the left side
of
the back, on the left side of the back near the waist, on the left
buttock,
on the back of the left leg and on the heel of the left leg. Dr.
Ronaldo Bandonill stated that the entrances of the gunshot wounds
indicated
that the assailant was behind the victim and on the same ground level.cralaw:red
Appellant’s defense
is alibi and he presented four witnesses, including himself, to prove
this
defense.cralaw:red
The first witness was
Carlos Jimenez who testified[14]
that in the evening of August 12, 1994, he hosted a birthday party in
his
house for his 12-year-old daughter. His house is located in
Barangay
Balococ, Lingayen, Pangasinan, some seven kilometers from where the
crime
was committed. Among the guests in attendance was appellant, who
was his neighbor. Furthermore, he stated that appellant does not
own a motorcycle which could have been used to travel to barangay
Bolaoen.cralaw:red
Carlos Jimenez testified
that appellant arrived in his house at about 7:00 p.m. and left at
around
11:45 p.m., and that while at the party, appellant played tong-its.[15]
To substantiate his testimony, Carlos Jimenez presented photographs of
appellant that were taken during the birthday party.[16]
The second witness for
the defense was Bernardo Sabangan who testified that he was one of the
invited guests who attended the birthday party of Carlos Jimenez’s
daughter
on August 12, 1994.[17]
He declared that he was in the house of Carlos Jimenez with appellant
from
7:00 p.m. until 11:45 p.m. To prove his statements, he
pointed
himself out in some of the photographs taken during the birthday party.cralaw:red
The third witness for
the defense was Marciana Nepacena, a neighbor of appellant.[18]
She testified that she was in the house of appellant on the night of
August
12, 1994 watching television and chatting with appellant’s wife.
She stated that appellant attended a birthday party in Calos Jimenez’s
house and came back at around 11:50 p.m.cralaw:red
Appellant was presented
as the fourth witness for the defense.[19]
Appellant testified that he attended a birthday party in the house of
Carlos
Jimenez on August 12, 1994. He stayed there from 7:00 p.m. until
12:00 midnight. From the party, he went straight home. He
identified
himself in some of the photographs taken during the party. He
denied
having any participation in the killing of the victim and even stated
that,
on the day the victim was killed, he did not go to Barangay
Bolaoen.
He also denied having shot Orlando Concepcion and contended that the
latter’s
injury was caused by a jeepney accident. He further denied having
admitted killing the victim to Daido Ferrer and testified that does he
know how to drive a motorcycle, much less own one.chanrobles virtual law library
The prosecution presented
three rebuttal witnesses, namely: Orlando Concepcion, Antonio Villanta
and Alma Paulo.cralaw:red
Orlando Concepcion maintained[20]
that, contrary to the testimony of appellant, his injury was a gunshot
wound caused by appellant. To prove his allegation, Orlando
Concepcion
presented a medical certificate showing that his injury was a gunshot
wound.cralaw:red
Antonio Villanta testified[21]
that he was also shot by appellant because the latter suspected that he
was the one who killed his father. He also testified that
appellant
knows how to drive a motorcycle and, in fact, owns one.cralaw:red
Alma Paulo returned
to the witness stand to refute appellant’s declaration that he did not
go to Barangay Bolaoen on August 12, 1994.[22]
She stated that she had seen appellant twice that day, first at 9:00
a.m.
and later at 4:00 p.m., riding a motorcycle in front of the house of
kagawad
Rodolfo Garcia in Barangay Bolaoen.cralaw:red
On sur-rebuttal, appellant
took the witness stand[23]
and denied having shot either Antonio Villanto or Orlando Concepcion.
He
further declared that, in fact, he was never investigated by the police
for those incidents.chanrobles virtual law library
After assessing all
the evidence adduced by the prosecution and the defense, the trial
court
rendered a decision finding appellant guilty as charged under both
informations.
The dispositive portion of the Decision reads:
Wherefore, in the light
of all the foregoing considerations, the court hereby renders judgment
in the above-entitled cases as follows:
In Criminal Case No.
L-5188, the court finds the accused Jesus Torio alias Tigno, guilty
bey[o]nd
reasonable doubt of the crime of Murder as charged in the information
and
pursuant to law, hereby sentences said accused to suffer the penalty of
Reclusion Perpetua and to pay the costs of the proceedings.cralaw:red
The court further orders
the accused to indemnify the heirs of the deceased Ramon Paulo, the sum
of P40,700.00 as actual damages; P50,000.00 as death indemnity and
P540,000.00
as loss of the earning capacity of the late Ramon Paulo without
subsidiary
imprisonment in case of insolvency.cralaw:red
In Criminal Case No.
L-5189, the court likewise finds and holds the accused Jesus Torio
alias
Tigno guilty beyond reasonable doubt of the crime of Illegal Possession
of Firearm and Ammunition penalized under the provisions of
Presidential
Decree No. 1866 as amended, and conformable thereto, pursuant to law,
hereby
sentences said accused to suffer the indeterminate prison term of
twelve
(12) years of prision mayor as minimum to eighteen (18) years and ten
(10)
months of reclusion temporal as maximum and to pay the costs of the
proceedings.cralaw:red
SO ORDERED.cralaw:red
Hence, this appeal.cralaw:red
In his brief, appellant
submits two errors allegedly committed by the trial court:chanrobles virtual law library
I
THE TRIAL COURT
GRAVELY
ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE TESTIMONIES OF THE
PROSECUTION
WITNESSES AND IN DISREGARDING THE EVIDENCE PRESENTED BY THE ACCUSED.
II
THE TRIAL COURT
GRAVELY
ERRED IN FINDING ACCUSSED-APPELLANT JESUS TORIO ALIAS "TIGNO" GUILTY OF
MURDER AND ILLEGAL POSSESSION OF FIREARM AND AMMUNITION DESPITE THE
INSUFFICIENCY
OF THE PROSECUTION EVIDENCE THAT WOULD WARRANT A CONVICTION UPON
REASONABLE
DOUBT.
The assigned errors
are interrelated and shall be considered together.cralaw:red
Appellant initially
attacks the identification made against him by prosecution witnesses
John
Paulo and Marlon Cagaoan. He first maintains that it is
unbelievable
that these witnesses would be walking on top of the dike at an unholy
hour
of 11:45 p.m. going to the victim’s house when they have their
respective
houses.[24]
The Court does not find
this to be the case. The presence of the witnesses on top of the
dike at 11:45 p.m. is fully explained by the fact that they had just
come
from a wake and were on their way to the victim’s house upon
instructions
of the victim himself. They were told to spend the night there
because
they were supposed to erect electric posts along the barangay road the
following day.cralaw:red
Appellant takes issue
with the finding that the two witnesses were able to see appellant
shoot
the victim because of the light coming from the motorcycle’s headlight,
contending that Alex Torio, who was right behind the headlight, could
not
identify the assailant.[25]
Alex Torio’s failure
to identify appellant does not make a case for acquittal. The
failure
by one, who was present at the scene, to reveal the identity of the
assailant
is not equivalent to a negative identification.[26]
Alex Torio simply stated to the investigators that he could not
identify
the assailant. He never said that appellant is not the assailant
and this non-assertion simply cannot prevail over the positive
identification
of the other witnesses.cralaw:red
Another point raised
by appellant is that John Paulo and Marlon Cagaoan did not immediately
point to him as the assailant. John Paulo only identified appellant
when
he gave his statement to the NBI ten days after the incident, while it
took Marlon Cagaoan twelve days after the incident to give his own
statement
to the NBI.[27]chanrobles virtual law library
Again, appellant’s argument
fails to convince the Court. The reliability of the
identification
made by the witnesses depends on their credibility,[28]
and it is well-settled that the assessment of credibility of witnesses
is primarily the province of the trial court which has the opportunity
to observe the witnesses and their demeanor during their testimonies.[29]
In the case at bar,
the trial court did not deem the delay sufficient to destroy the
veracity
of the two witnesses as it had been satisfactorily explained. It
found that the delay was due to the witnesses’ fear of appellant, who
was
then still free to roam around.[30]
It may also be added that the initial reluctance of witnesses and their
willingness to be involved in criminal investigations are common and
have
been judicially declared not to affect credibility.[31]
To discredit a witness merely for his understandable procrastination is
to forever seal the lips of any reluctant and fearful witness.[32]
Besides, one of the witnesses, John Paulo, is a half-brother of the
victim
and such relationship only strengthens his credibility, for it is
unnatural
for an aggrieved relative to falsely accuse someone other than the
actual
culprit.[33]
Appellant also questions
the alleged motive of appellant as claimed by John Paulo and Marlon
Cagaoan,
i.e., that the victim was suspected to have killed the father of
appellant.[34]
Suffice it to say that this argument has no real significance to the
case,
as motive is not an element of a crime and need not be proven to
produce
a conviction.[35]
Appellant next tries
to focus attention on several other people whom the police
investigators
initially regarded as suspects to the killing, including the suspects
charged
by Alma Paulo with the NBI.[36]
Appellant is here clutching
at straws. While admittedly there were other suspects to the crime,
this
fact does not detract from the guilt of appellant in light of the
credible
testimonies of the eyewitnesses. One simply does not become less
guilty once other people have been investigated. It is common
knowledge
that criminal investigations initially begin with a number of possible
suspects, most of whom are later cleared. Therefore, to use this
reality as a means to obtain reasonable doubt is totally amiss.cralaw:red
Neither does Alma Paula’s
sworn statement to the NBI that Alexander Mata and Rodolfo Garcia may
have
had a hand in the killing of the victim exonerate appellant. The
same statement had clearly pointed to appellant as a suspect in the
killing
of her father. Alexander Mata and Rodolfo Garcia were included as
possible additional suspects only because Alexander Mata had challenged
the victim on July 24, 1994, while Rodolfo Garcia was a close friend of
Alexander Mata and was seen together with appellant at around 4:00 p.m.
of August 12, 1994. In short, mentioning two other suspects is
not
inconsistent with the accusation that appellant was the victim’s
assailant.cralaw:red
Appellant further avers
that the complaint sheet and sworn statement of Alma Paulo to the NBI
were
not offered in evidence. Citing People v. Regalario,[37]
he argues that suppression of testimony of a witness, without any
explanation,
creates the inference that her testimony would have been adverse.[38]chanrobles virtual law library
The argument is not
tenable. First, the complaint sheet and sworn statement were part
of the documents submitted to the trial court by the investigating
prosecutor
and, although not considered as part of the records of the case, were
readily
available to the trial court for its perusal. Second, the cited
case
is inapplicable since it refers to the suppression of a testimony of a
witness and not to the failure to offer documents in evidence.
Third,
assuming that the doctrine is applicable, it is qualified by the rule
that
the prosecution has the discretion to decide on who to call as witness
during the trial and its failure to do so does not give rise to the
presumption
that "evidence willfully suppressed would be adverse if produced" since
the evidence was at the disposal of both parties.[39]
The Court finds it unnecessary
to consider appellant’s arguments concerning the credibility of
prosecution
witnesses Orlando Concepcion and Daido Ferrer[40]
since it does not appear in the assailed decision that their
testimonies
were considered by the trial court in convicting appellant. The
trial
court leaned heavily on the candid and straightforward testimony of the
eyewitnesses John Paulo and Marlon Cagaoan, which is enough to sustain
a judgment of conviction. For, indeed, the testimony of a single
witness, if positive and credible, is sufficient to convict, even in a
murder charge.[41]
Appellant tried to establish
his alibi with testimonies from witnesses and through photographic
evidence.
He assails the trial court's disregard of said evidence.cralaw:red
In assessing the testimonies
of prosecution witnesses who saw appellant at the scene of the crime
and
defense witnesses who claim to have been with appellant in another
place
at the time of the commission of the crime, the Court defers to the
findings
of the trial court. The evaluation of the testimonial evidence by
the trial court is accorded great respect because the trial court is in
the advantageous position of personally observing the demeanor of
witnesses.[42]
Only when the trial court has plainly overlooked certain facts of
substance
and value that, if considered, might affect the result of the case,
will
its findings with respect to the credibility of the witnesses be
overturned.[43]
Here, the Court finds no compelling reason to divert from the rule and
disregard the positive identification made by the prosecution witnesses.cralaw:red
In any event, People
v. Arcamo[44]
held that where the court is satisfied as to credibility of a
prosecution
witness who positively identified appellants as the perpetrators of the
crime, there is no reason still to dwell on the issue of credibility of
the defense witnesses and the validity of defendants' alibi. For
settled is the rule that the defense of alibi cannot prevail over the
positive
identification of the accused as the author of the crime by credible
witnesses.cralaw:red
The photographs submitted
by the defense do not support the alibi of appellant. For alibi
to
be believed it must be shown that (a) the accused was in another place
at the time of the commission of the offense, and (b) that it was
physically
impossible for him to be at the crime scene.[45]
According to defense
witness Carlos Jimenez, the pictures were taken at 10:00 p.m.[46]
The distance between the place where the crime was committed and the
house
of Carlos Jimenez is only seven kilometers. Said distance
could
easily be covered in less than thirty minutes by vehicle.[47]
Clearly, there was plenty of time for appellant to leave the birthday
party
and proceed to the scene of the crime in order to get there by 11:45
p.m.
Therefore, it was not physically impossible for him to be present at
the
scene of the crime when it was committed.chanrobles virtual law library
However, there is merit
in appellant’s contention that he should not be convicted of the
separate
crime of illegal possession of firearm and ammunition. Republic
Act
No. 8294, which took effect on July 7, 1997, amended Presidential
Decree
No. 1866 and now considers the use of unlicensed firearm as a special
aggravating
circumstance in murder and homicide and not as a special offense.[48]
Furthermore, Sections
8 and 9 of Rule 110 of the Revised Rules on Criminal Procedure, which
took
effect on December 1, 2000, now require that qualifying as well as
aggravating
circumstances be expressly alleged in the complaint or information,
otherwise
the same will not be considered by the court even if proven during
trial.[49]
Considering that the information in Criminal Case No. L-5188 did not
allege
that appellant shot the victim with an unlicensed firearm, the same
cannot
be appreciated in imposing the proper penalty.cralaw:red
Be that as it may, the
information in Criminal Case No. L-5188 alleged that the crime was
committed
with treachery. The Court finds that treachery was satisfactorily
proven by the prosecution. The essence of treachery is the
unexpected
and sudden attack on the victim which renders the latter unable and
unprepared
to defend himself by reason of the suddenness and severity of the
attack.[50]
In the case at bar, the nature of the entrance wounds and the
testimonies
of eyewitnesses sufficiently establish that, first, at the time of
attack,
the victim was not in a position to defend himself, as he was shot from
behind while on top of a motorcycle; and second, appellant consciously
adopted the particular means of attack, as he was at the crime scene
prior
to the attack, armed and waiting for the victim to pass by.cralaw:red
The civil liability
imposed by the trial court requires modification.cralaw:red
Alma Paulo testified
that the victim’s heirs spent P16,000 for the vigil, P9,500 for
funeral
services, P2,600 for the tomb, P600 for the church rites, P7,000 for
lompos,
P1,000 for exhuming the victim’s cadaver and P15,000 for obtaining the
services of a private prosecutor. In all, the actual damages she
testified to amounted to P51,700, including attorney’s fees. Only
the sum of P9,500 for funeral services was supported with a receipt.cralaw:red
Ordinarily, receipts
should support claims of actual damages, but where the defense does not
contest the claim, it should be granted.[51]
Accordingly, there being no objection raised by the defense on Alma
Paulo’s
lack of receipts to support her other claims, all the amounts testified
to are accepted.chanrobles virtual law library
We also re-compute the
loss of earning capacity using the formula provided in People v.
Garcia,
et al.[52]
as follows:
Age of
Victim
= 46 years oldchanrobles virtual law library
Life
Expectancy
= 2/3 (80
-
age of victim at the
time of his death)chanrobles virtual law library
= 22.67
Gross Annual
Income
= P48,000
Living
Expenses
= 50% of Gross
Annual
Incomechanrobles virtual law library
= P24,000
Loss of
Earning
= Life Expectancy
x (Gross Annual
Capacity
Income - Living Expenses)
= 22.67 x P24,000
= P544,080
In line with current
jurisprudence,
we also award moral and exemplary damages to the heirs of the victim in
the amount of P50,000 and P25,000 respectively.[53]
The award by the trial court of P50,000 as civil indemnity for death is
affirmed.chanrobles virtual law library
WHEREFORE, all things
considered, the decision with respect to Criminal Case No. L-5188 is
hereby
AFFIRMED, with modification as to the damages awarded. Appellant
is ordered to pay the heirs of the victim P51,700 as actual damages,
P50,000
as civil indemnity, P544,080 as indemnity for loss of earning capacity,
P50,000 as moral damages and P25,000 as exemplary damages.cralaw:red
Criminal Case No. L-5189
involving Presidential Decree No. 1866 is hereby DISMISSED.cralaw:red
Costs de oficio.cralaw:red
SO ORDERED.cralaw:red
Davide, Jr., C.J., (Chairman),
Vitug, Ynares-Santiago, and Carpio, JJ.,
concur.
____________________________
Endnotes:
[1]
Rollo, pp. 24-37.
[2]
Rollo, pp. 8-10.
[3]
Id., pp. 11-12.chanrobles virtual law library
[4]
Pre-trial Order, Records, p. 48; Certificate of Arraignment, Records,
p.
49.
[5]
TSN, January 11, 1995, pp. 3-8.chanrobles virtual law library
[6]
A customary 9-day vigil for the deceased after the burial.
[7]
TSN, January 23, 1995 a.m., pp. 4-35.
[8]
TSN, January 25, 1995 a.m., pp. 3-34.
[9]
Exhibits D to D-6, Records, pp. 83-101.
[10]
TSN, January 27, 1995 a.m., pp. 5-56.
[11]
TSN, February 27, 1995 a.m., pp. 3-6.
[12]
Id., pp. 8-14.chanrobles virtual law library
[13]
TSN, March 6, 1995 p.m., pp. 6-23.
[14]
TSN, March 6, 1995 a.m., pp. 5-22
[15]
A local card game.chanrobles virtual law library
[16]
Exhibits 2 to 2-H, Records, pp. 135-143.
[17]
TSN, March 13, 1995 a.m., pp. 3-5.
[18]
TSN, March 13, 1995 a.m., pp. 16-17.
[19]
TSN, March 13, 1995 p.m., pp. 3-10.
[20]
TSN, April 5, 1995, pp. 3-4.chanrobles virtual law library
[21]
Id., pp. 7-11.chanrobles virtual law library
[22]
TSN, June 5, 1995, pp. 3-4.
[23]
TSN, June 6, 1995 a.m., pp. 3-5.
[24]
Appellant’s brief, Rollo, p. 107.
[25]
Id., p. 108.chanrobles virtual law library
[26]
People v. Gondora, 265 SCRA 408 (1996).
[27]
Appellant’s brief, Rollo, p. 108.
[28]
People v. Aquino, 329 SCRA 247 (2000).
[29]
People v. Elamparo, 329 SCRA 404 (2000).
[30]
Decision, Rollo, p. 33.chanrobles virtual law library
[31]
People v. Competente, 207 SCRA 591 (1992).
[32]
People v. Lozada, 334 SCRA 602 (2000).chanrobles virtual law library
[33]
People v. Rendoque, 322 SCRA 622 (2000).
[34]
Appellant’s brief, Rollo, p. 109.chanrobles virtual law library
[35]
People v. Berzuela, 341 SCRA 46 (2000).
[36]
Appellant’s brief, Rollo, pp. 116-119.
[37]
220 SCRA 368 (1993).chanrobles virtual law library
[38]
Appellant’s brief, Rollo, p. 119.
[39]
People vs. Andal, 279 SCRA 474 (1997).
[40]
Appellant’s brief, Rollo, pp. 120-124.
[41]
People v. Batidor, 303 SCRA 335 (1999)
[42]
People v. Cabigting, 344 SCRA 86 (2000).
[43]
People v. Ballinas, et al., 202 SCRA 516 (1991).
[44]
105 SCRA 707 (1981).chanrobles virtual law library
[45]
People v. Reanzares, 334 SCRA 624 (2000).
[46]
TSN, March 6, 1995, p. 19.chanrobles virtual law library
[47]
Ibid.chanrobles virtual law library
[48]
People v. Costales, et al., G.R. No. 141154, January 15, 2002.chanrobles virtual law library
[49]
People v. Casitas, G.R. No. 137404, February 14, 2003.chanrobles virtual law library
[50]
People v. Alfon, G.R. No. 126028, March 14, 2003.chanrobles virtual law library
[51]
People v. Arellano, 334 SCRA 775 (2000).chanrobles virtual law library
[52]
G.R. No. 145505, March 14, 2003.chanrobles virtual law library
[53]
People v. Rubiso, G.R. No. 128871, March 18, 2003; People v. Garcia,
supra. |