EN BANC
PEOPLE OF THE
PHILIPPINES,
Appellee,
G.R.
No.
139879
May 8, 2003
-versus-
GABRIEL ANNIBONG
Y INGGAO,
Appellant.
D E C I S I
O N
QUISUMBING,
J.:chanroblesvirtuallawlibrary
For automatic review is
the Decision[1]
of the Regional Trial Court of Apayao, Branch 26, in Criminal Case No.
9-98, convicting appellant Gabriel Annibong of murder and sentencing
him
to death.
The information[2]
filed by the Provincial Prosecutor reads:
That on or
about February 13, 1998 at around 2:00 o’clock P.M. at barangay
Doña
Loreta, Pudtol, Apayao, within the jurisdiction of this Honorable
Court,
the above-named accused armed with a long firearm, with intent to kill
and with the attendance of treachery and evident premeditation did then
and there willfully, unlawfully and feloneously (sic) attack, assault
and
shot one Cpl. Fidel Obngayan,[3]
inflicting upon the latter gun shot wounds which caused death.
CONTRARY TO LAW.
When arraigned,
appellant
pleaded not guilty to the charge. Although he admitted killing the
victim,
appellant invoked self-defense. Thus, the order of the trial was
reversed, with the defense presenting its evidence first.
For the defense, appellant
Gabriel Annibong and lone eyewitness Artemio Tallong, a CAFGU member
assigned
at the Army Camp Detachment at Doña Loreta, Pudtol, Apayao,
testified.
Tallong was also adopted as a prosecution witness.cralaw:red
Appellant, a kitchen
aide serving at the camp, testified that on February 13, 1998, while he
and Tallong were in their camp at Barangay Doña Loreta, Pudtol,
Apayao, the victim arrived coming from Centro, Pudtol, Apayao. When
Obngayan
went to the kitchen to get a drink, he was irritated to discover the
water
container empty. Hopping mad, Obngayan rushed to appellant and boxed
him
three times in the stomach and uttered: "Vulva of your mother, it is
better
that I will kill you." Obngayan proceeded to his bunker, got his M-16
rifle
and aimed it at appellant, prompting the latter to shoot the victim
once.
After the first shot, the victim managed to stand and aim his gun at
appellant
prompting the latter to fire his M-16. But since the M-16
malfunctioned,
appellant grabbed the garand rifle of Artemio Tallong and shot the
victim
once more. Immediately after the shooting, appellant escaped with
Tallong and proceeded to Suan, Pudtol, Apayao. Two days later, both
surrendered
to Governor Batara P. Laoat, who advised them to surrender to the
police.cralaw:red
Artemio Tallong was
presented by the defense to show unlawful aggression on the part of the
victim.[4]
As one of the CAFGU’s on duty at the time of the incident, he said he
witnessed
the incident from the time Cpl. Obngayan arrived at the detachment
until
he was shot.cralaw:red
Tallong narrated that
on February 13, 1998, around 2:00 P.M., Cpl. Obngayan arrived at the
Philippine
Army detachment in Brgy. Doña Loreta, Pudtol, Apayao where
he was then the commanding officer.[5]
Still perspiring and thirsty from an operation in Centro, Pudtol,
Apayao,
Cpl. Obngayan hurriedly proceeded to the camp’s kitchen for a drink.
Incensed
that all of the water containers were empty, Obngayan confronted
appellant
whose duty it was to maintain the camp’s kitchen. He gave appellant a
jab
in the abdomen, then slowly walked away towards his bunker.cralaw:red
Infuriated, appellant
without warning, picked up his M-14 armalite rifle and strafed the
former
on the back. Obngayan sprawled bloodied on the ground. Shortly
after,
appellant took the garand rifle of Artemio Tallong, and unleashed
another
barrage of gunshots. Obngayan died instantaneously with his brain
splattered
and an eye fallen on the ground.cralaw:red
The prosecutor adopted
the testimony of defense witness Artemio Tallong for purposes of the
prosecution.
Other prosecution witnesses were Dr. Dan Redel Edroso, the Municipal
Health
Officer of Pudtol, Apayao, who conducted a post-mortem examination on
the
victim’s body; Lt. Walfrido Felix Querubin of the Philippine Army; Cpl.
Robert Salarzon, from the Philippine Army assigned at Nararragan,
Ballesteros,
Cagayan; Capt. Efren Paulino, from the Philippine Army assigned at the
Headquarters Service Battalion, Camp Upi, Gamu, Isabela; and Mrs. Agnes
Obngayan, the victim’s widow.cralaw:red
Dr. Dan Redel Edroso
declared that on February 14, 1998, he conducted an autopsy[6]
on the victim’s remains which revealed nine gunshot wounds. From his
examination
of the wounds, Dr. Edroso opined that two were inflicted from the back
of the victim while five were inflicted while the victim was already
lying
down with his face up.[7]
He said, the multiple shots on the victim’s head caused his immediate
death.cralaw:red
Lt. Walfrido Felix Querubin,
the Platoon Leader of the Headquarters Company of the Philippine Army
in
Capagaypayan, Luna, Apayao, testified that he arrived at the scene of
the
crime after Obngayan was slain.[8]
According to him, he found the victim lying up, his left eye fallen and
brains scattered on the ground.[9]
Shortly after his arrival, Lt. Querubin inventoried the firearms issued
to the detachment and found the firearms all intact in the cabinet
except
an M-14 and a garand rifle[10]
- the weapons used by
appellant.cralaw:red
Cpl. Robert Salarzon
and Capt. Efren Paulino from the Philippine Army corroborated the
testimony
of Lt. Querubin as to the position of the victim’s body when they
arrived
at the scene of the crime for investigation.[11]
Mrs. Agnes Obngayan
testified that her husband was the sole breadwinner of the family and
was
earning P9,000 monthly, more or less.[12]
According to her, Cpl. Obngayan was 35 years old when he died, leaving
her with their two children. As a result of Fidel’s death, the
Obngayans
incurred expenses amounting to thirty thousand pesos more or less.[13]
On June 15, 1999, the
trial court rendered its decision finding appellant guilty beyond
reasonable
doubt of the murder of his commander and sentencing him as follows:
WHEREFORE,
foregoing all considered, and finding the accused GABRIEL ANNIBONG y
INGAO
(sic) guilty beyond reasonable doubt for the crime of Murder committed
under Article 248 paragraph one (1) of the Revised Penal Code of the
Philippines
as charged in the information with the special aggravating circumstance
of with insult or in disregard of the respect due the offended party on
account of his rank under Article 14 paragraph 3 of the same Penal
Code,
this Court hereby sentences said accused Gabriel Annibong y Ingao to
suffer
the Supreme penalty of death.chanrobles virtual law library
Accused is further
ordered
to indemnify the surviving spouse of the victim, CPL. FIDEL OBNGAYAN,
in
the amount of FIFTY THOUSAND PESOS (P50,000.00), for such death, in
addition
to the payment of TWENTY THOUSAND PESOS (P20,000.00) for moral damages,
TEN THOUSAND PESOS (P10,000.00) as and for exemplary damages, TWENTY
FIVE
THOUSAND PESOS (P25,000.00) for actual expenses and FIVE HUNDRED
THOUSAND
PESOS (P500,000.00) for the lost earnings of the victim and the costs
of
the suit.
The BJMP, Luna,
Apayao
is ordered to immediately shift the person of the accused to the Bureau
of Prisons, Muntinlupa City for detention thereat to await the
automatic
review of this decision.
SO ORDERED.[14]
By reason of the death
sentence imposed upon appellant, the decision is now before us for
automatic
review.
In his brief, appellant
ascribes to the trial court the following errors:chanrobles virtual law library
I. In
finding
and holding that there were no unlawful aggression on the part of the
victim
Corporal Fidel ObngayAn against the accused.
II. In finding
that
there was the qualifying circumstance of treachery which would qualify
the crime to murder.chanrobles virtual law library
III. In finding
that
the aggravating circumstance of insult or disregard to rank is present
in the case at bar.
IV. In finding the
lone
eyewitness Artemio Tallong as credible and trustworthy witness together
with his oral testimony.
V. In not finding
that
the accused acted in SELF-DEFENSE when he killed the victim.[15]
We shall now consider
the
following pertinent issues: (1) whether there was unlawful aggression
on
the part of Cpl. Obngayan; (2) whether the killing was attended by the
qualifying circumstances of treachery and evident premeditation; and
(3)
whether the imposition of the death penalty on appellant is appropriate.
Appellant admits shooting
Cpl. Obngayan. But he claims that he did so merely to repel the
victim’s
unlawful aggression. He contends that since the victim was the actual
aggressor,
there can be no treachery. He adds that he had not intended to insult
or
disregard the rank of the victim. He insists that Artemio Tallong was a
turncoat whose testimony should, therefore, be considered unworthy of
credit.cralaw:red
In his Brief, appellant
offers no substantial reason, however, why we should overturn the trial
court’s appreciation of the evidence presented against him.
Instead,
he merely reiterates in this appeal his claim of self-defense. In cases
where the accused admits committing the crime but invokes self-defense,
the basic rule that the burden of proving the guilt of the accused lies
on the prosecution is reversed, and the burden of proof is shifted to
the
accused to prove the elements of his defense.[16]
In our view, the defense has not discharged its burden successfully.cralaw:red
The elements of self-defense
are (1) that the victim has committed unlawful aggression amounting to
actual or imminent threat to the life and limb of the person claiming
self-defense;
(2) that there is reasonable necessity in the means employed to prevent
or repel the unlawful aggression; and (3) that there is lack of
sufficient
provocation on the part of the person claiming self-defense or, at
least,
that any provocation executed by the person claiming self-defense be
not
the proximate and immediate cause of the victim’s aggression.[17]chanrobles virtual law library
Granting that the initial
act of aggression came from the victim when he cursed and then punched
appellant three times in the stomach, such aggression did not amount to
actual or imminent threat to appellant’s life as the victim already
ceased
and desisted thereafter. As defense witness Tallong testified, the
victim
was already walking slowly away towards his bunker[18]
at the time appellant shot him incessantly. At that point, it was no
longer
necessary for appellant to shoot Obngayan in order to protect himself.
As held in People v. More,[19]
"In legitimate self-defense the aggression must still be existing or
continuing
when the person making the defense attacks or injures the aggressor.
Thus
when the unlawful aggression ceases to exist, the one making the
defense
has no more right to kill the former aggressor."
Appellant’s act of shooting
the unarmed victim first with an M-16 and a garand rifle, successively,
belies his claim that he acted in self-preservation and indicates
nothing
more than the desire to kill. Thus, Tallong testified:
Q: You said
that Gabriel Annibong used the M-14 rifle in shooting Fidel Ubngayan,
how
come that the garand was also used by Gabriel Annibong in shooting
Fidel
Ubngayan?
A:
He used first the M-14 rifle in shooting Fidel Ubngayan but when he was
not satisfied he took the garand and used it again in shooting
Ubngayan.[20]
Tallong’s recital of
the events, in our view, is more in accord with the natural course of
things
and ordinary human experience. Further, his testimony is validated by
the
evidence on record on all material points. The post-mortem examination
of Dr. Edroso, while negating appellant’s tale that he shot the victim
only twice, confirmed Tallong’s story that there were more shots
fired.
Tallong’s narration, as to the position of the victim when shot,
tallied
with the doctor’s findings that two of the gunshot wounds were
inflicted
while the assailant was behind the victim and that the other five were
dealt while the victim was lying face up on the ground.[21]
His account that the victim was unarmed matched with Lt. Querubin’s
testimony
that all of the weapons issued to the detachment were found intact
except
the M-16 and the garand rifle used in perpetrating the crime.[22]
The credibility of prosecution
witness Artemio Tallong is not in any way lessened, much less impaired,
by the motives imputed to them by appellant. Appellant claims
that
Tallong was a defector who fled the scene with him immediately after
the
incident, and surfaced with appellant only two days after the shooting.
Appellant’s contention is nothing more than a desperate attempt to
discredit
said witness. Different people react differently to a given type of
situation
and there is no standard form of behavioral response when one is
confronted
with a startling, strange or frightful experience. Considering that
appellant
himself admitted that Tallong had no participation in the murder, the
fact
that he fled the scene with appellant should not by itself be taken
against
him. This Court recognizes that the initial reticence of
witnesses
to volunteer information about a criminal case and their aversion to be
involved in criminal investigations due to fear of reprisal is not
uncommon.[23]chanrobles virtual law library
The element of treachery
attended the slaying of Obngayan because (1) the means of execution
employed
gave the person attacked no opportunity to defend himself or to
retaliate;
and (2) the means of execution were deliberately or consciously adopted.[24]
In this case, the victim was totally unprepared for the volley of
gunshots
by appellant. The victim was unarmed, while appellant was carrying a
weapon.[25]
When shot, the victim was already retiring, as he was then slowly
turning
away towards his bunker. As he was already walking away towards
his
bunker, he was clueless of appellant’s sudden attack. Such unexpected
and
sudden attack under circumstances that render the victim unable and
unprepared
to defend himself constitutes alevosia.[26]
From the circumstances
of this case, we are persuaded that appellant consciously and purposely
adopted the means of attack to insure the execution of the crime
without
risk to himself. Thus, the trial court did not err when it ruled that
treachery
qualified the killing to murder.chanrobles virtual law library
As for evident premeditation,
we agree that its elements were not clearly established by the
prosecution.
To prove this attendant circumstance, evidence must show: (1) the time
the offender determined to commit the crime; (2) an act indicating that
the offender had clung to his determination; and (3) sufficient lapse
of
time between the determination to commit the crime and the execution
thereof
to allow the offender to reflect upon the consequences of his act.[27]
There is no clear proof as to when the accused hatched the murderous
plan,
and the interval of time therefrom to its commission.cralaw:red
But we differ from the
trial court’s finding and conclusion with regard to the aggravating
circumstance
of disregard of rank as well as respect due to the offended
party.
Although the victim was the immediate superior officer of the
appellant,
being his Detachment Commander at the time of the commission of the
crime,[28]
this fact was not alleged in the information. Hence, this
circumstance
cannot be appreciated to increase appellant’s liability following
Section
8 of Rule 110.[29]
Appellant’s surrender
to police authorities after the shooting should be credited in his
favor
as a mitigating circumstance, pursuant to Article 13 (7) of the Revised
Penal Code.[30]
There is voluntary surrender if three conditions are satisfied:
(1)
the offender has not been 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. There is no dispute that appellant voluntarily
surrendered
to the governor[31]
a person in authority, then to the police, before he was arrested. In
People
v. Antonio,[32]
the accused’s surrender to the mayor was considered as a mitigating
circumstance.
In the same way, appellant’s voluntary surrender to the governor should
be considered in his favor. It is immaterial that appellant did not
immediately
surrender to the authorities, but did so only after the lapse of two
days.
In People v. Bautista,[33]
the voluntary surrender of the accused to a police authority four (4)
days
after the commission of the crime was considered attenuating.
Finally,
even if not raised on appeal, since an appeal opens the whole case for
review, we could take into account this mitigating circumstance
favorable
to appellant.chanrobles virtual law library
The penalty for murder
is reclusion perpetua to death, both indivisible penalties.
Conformably
with Art. 63, par. 3, of the Revised Penal Code, when the commission of
the act is attended by one mitigating and there is no aggravating
circumstance,
the lesser penalty shall be imposed. Considering that the crime was not
attended by the alleged circumstance of evident premeditation, the
undisputed
presence of the mitigating circumstance of voluntary surrender entitles
appellant to the imposition of the minimum penalty for murder. Thus,
the
proper imposable penalty is reclusion perpetua, being the lesser
penalty.[34]
As to the award of damages,
the trial court offered no explanation for the award of P500,000 as
lost
earnings. Cpl. Obngayan was 35 years old at the time of his
death.
His wife and superiors testified that he was earning P9,000 a month[35]
during his lifetime or an annual income of P108,000. Using the accepted
formula, we fix the indemnity for loss of earning capacity[36]
of Cpl. Obngayan at P1,620,000, thus:
Net earning capacity
= 2 x (80-35) x
[P108,000
- ½ (P108,000)]
3
= 2 x (45) x
P54,000chanrobles virtual law library
3chanrobles virtual law library
= 35.33 x P54,000chanrobles virtual law library
= P1, 620,000
We delete the twenty
five thousand peso-award for actual expenses in the absence of
requisite
proof,[37]
but in lieu thereof, P10,000 is awarded as nominal damages.[38]
As for moral damages, pursuant to current jurisprudence, the amount
should
be increased to P50,000.[39]
The award of P50,000 as death indemnity to the heirs of the deceased is
retained as well as the award of P20,000 as exemplary damages, which we
find to be sufficient and justified by the presence of the qualifying
circumstance
of treachery.
WHEREFORE, the decision
of the Regional Trial Court, Apayao, Branch 26, in Criminal Case No.
9-98,
is AFFIRMED with MODIFICATION. Appellant Gabriel Annibong y Inggao is
declared
guilty of murder, but his sentence is hereby reduced to reclusion
perpetua.
Further, he is ordered to pay the heirs of the victim the amount of
P50,000.00
as civil indemnity, P1,620,000.00 for lost earnings, P10,000.00 as
nominal
damages, P50,000.00 as moral damages, and P20,000 as exemplary
damages.
Costs de oficio.cralaw:red
SO ORDERED.cralaw:red
Davide, Jr., C.J., Bellosillo,
Puno, Vitug, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez,
Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
Panganiban, J., on
leave.
____________________________
Endnotes:
[1]
Rollo, pp. 20-30.
[2]
Id. at 20-21; Records, p. 32.chanrobles virtual law library
[3]
Also spelled "Ugnayan" and "Ubngayan" in other parts of the records.
[4]
TSN, 23 November 1998, p. 2.chanrobles virtual law library
[5]
Id. at 2-3.chanrobles virtual law library
[6]
Records, p. 114.
[7]
TSN, 4 March 1999, p. 10.
[8]
TSN, 15 March 1999, pp. 3-4.
[9]
Id. at 5.chanrobles virtual law library
[10]
Ibid.chanrobles virtual law library
[11]
TSN, 27 April 1999, pp. 4-5 (Cpl. Robert Salarzon); TSN, 27 April 1999,
pp. 6-7 (Capt. Efren Paulino).
[12]
TSN, 15 March 1999, p. 31.chanrobles virtual law library
[13]
Id. at 30.
[14]
Rollo, pp. 29-30.
[15]
Id. at 64.chanrobles virtual law library
[16]
People v. Vallador, 327 Phil. 303, 312-313 (1996).
[17]
People v. Enfectana, G.R. No. 132028, 19 April 2002, p. 10.
[18]
TSN, 23 November 1998, p. 4.chanrobles virtual law library
[19]
G.R. No. 128820, 23 December 1999, 321 SCRA 538, 545.
[20]
TSN, 23 November 1998, p. 11.chanrobles virtual law library
[21]
TSN, 4 March 1999, p. 10.
[22]
TSN, 15 March 1999, p. 5.chanrobles virtual law library
[23]
People v. Antonio, G.R. No. 128900, 14 July 2000, 335 SCRA 646, 661.
[24]
People v. Mabubay, G.R. No. 87018, 24 May 1990, 185 SCRA 675, 680.
[25]
Supra, note 18.chanrobles virtual law library
[26]
Supra, note 17 at 11.chanrobles virtual law library
[27]
People v. Kinok, G.R. No. 104629, 13 November 2001, 368 SCRA 510, 521.
[28]
TSN, 23 November 1998, p. 3.chanrobles virtual law library
[29]
People v. Feliciano, G.R. Nos. 127759-60, 24 September 2001, 365 SCRA
613,
630.
[30]
ART. 13. Mitigating circumstances. - The following are mitigating
circumstances:chanroblesvirtuallawlibrary
x
x xchanrobles virtual law library
7.
That the offender had voluntarily surrendered himself to a person in
authority
or his agents, or that he had voluntarily confessed his guilt before
the
court prior to the presentation of the evidence for the prosecution.chanrobles virtual law library
x
x xchanrobles virtual law library
[31]
TSN, 12 January 1999, p. 14.
[32]
G.R. No. 128900, 14 July 2000, 335 SCRA 646, 668.
[33]
G.R. No. 109800, 12 March 1996, 254 SCRA 621, 629, citing People v.
Yecla,
68 Phil. 740 (1939).
[34]
People v. Lopez, G.R. No. 132168, 10 October 2000, 342 SCRA 431, 440.
[35]
Supra, note 12.chanrobles virtual law library
[36]
Loss of earning capacity = Life expectancy x (gross annual income -
living
expenses)
Life
expectancy = 2/3 (80 - age at time of death)chanrobles virtual law library
Living
expenses = 50% of gross annual income (People v. Gelin, G.R. No.
135693,
1 April 2002, p. 9.)
[37]
People v. Nullan, 365 Phil. 227, 256 (1999).chanrobles virtual law library
[38]
People v. Hate, G.R. No. 145712, 24 September 2002, p. 8.
[39]
People v. Salva, G.R. No. 132351, 10 January 2002, p. 12; People v.
Guzman,
G.R. No. 132750, 14 December 2001, p. 14; People v. Herrera, G.R. Nos.
140557-58, 5 December 2001, p. 23. |