THIRD DIVISION
PEOPLE OF THE
PHILIPPINES,
Plaintiff-Appellee,
G.R.
No.
148519
May 29, 2003
-versus-
ROLITO CABICAL ALIAS
LITO Y ESTEBAN,
Accused-Appellant.
D E C I S I
O N
PUNO,
J.:chanroblesvirtuallawlibrary
Appellant Rolito Cabical
was charged with the crime of murder before Branch 27 of the Regional
Trial
Court of Bayombong, Nueva Vizcaya in an Information which reads:
"That on or
about 5:30 in the afternoon of December 3, 1996, at Barangay Pieza,
Municipality
of Villaverde, Province of Nueva Vizcaya, Philippines, and within the
jurisdiction
of this Honorable Court, the above-named accused, who was then armed
with
a piece of wood, with intent to kill, with evident premeditation,
taking
advantage of superior strength, and by means of treachery, did then and
there willfully, unlawfully and feloniously, hit and strike the head of
Reynaldo Fernando y Ramos, thereby inflicting upon him mortal wounds
and
injuries on his head which caused his instantaneous death, to the
damage
and prejudice of his heirs.
"Contrary to law."[1]
During arraignment,
appellant
Cabical entered a plea of not guilty and underwent trial.
The evidence shows that
at about 5:30 in the afternoon of December 3, 1996, Joniper Pontino,
riding
on a carabao and heading south, was on his way home from the rice
fields
in Purok Namnama, Barangay Pieza, Villaverde, Nueva Vizcaya. He saw the
victim, Reynaldo Fernando, going north and being closely followed by
appellant
Cabical. Cabical held a piece of wood and was walking faster than
Fernando.
When Pontino was around five (5) meters away from the two, he saw
Cabical
strike Fernando at the nape with a wood. Fernando slumped to the
ground,
snored, and blood came out from his nose and mouth. Pontino got afraid
and rushed home.[2]
He encountered his father, Rodolfo, drinking with a group of people. He
told them about the incident.[3]
Rodolfo, in turn, reported
the matter to Danilo Duro, the barangay captain of Pieza, Villaverde,
Nueva
Vizcaya. Duro, together with Kagawad Renato Martin, went to the scene
of
the crime and found Fernando lying in a prone position on the road
outside
the fence of the house owned by Cabical, and clenching a sapling or
seedling
in his right hand.[4]
Duro lifted Fernando and placed him in the vehicle that would bring him
to the hospital. When he lifted Fernando, he said he did not smell any
alcohol on the victim. Instead, the victim had a fish-like smell
("malangsi").[5]
The testimony of Duro
that he did not smell any alcohol on the victim was corroborated by Dr.
Elpidio Quines who performed an autopsy on Fernando. Quines stated that
he did not smell any alcoholic breath, although he admitted that he did
not take any gastric content from Fernando so as to actually determine
the presence of alcohol in the body.[6]
He also declared that only one injury was inflicted on Fernando. The
injury
was located at the back of his head and could have been caused by any
hard
object, possibly a piece of wood.[7]
Esperanza, the widow
of Fernando, declared that she was working in Malaysia when her husband
was killed. As a result of his death, she suffered endless sleepless
nights
and was not able to eat or think properly.[8]
She demanded P52,500.00 as actual damages.[9]
She also claimed that her husband earned a living from the buy and sell
of pigs, cows and carabaos, and farming. He allegedly earned an annual
income of P124,290.00.[10]chanrobles virtual law library
The defense presented
appellant Cabical and his wife, Alice Cabical, as witnesses. They
justified
the killing as an act of self-defense. Alice Cabical narrated that in
the
afternoon of December 3, 1996, appellant was working in the nearby
house
of Joel Calimlim. She was at their house cooking and watching over
their
kid when she heard Fernando, who was drunk, shouting "vulva of your
mother"
at the same time mentioning the name of her husband. She did not mind
him
until she heard him at their door, looking for Cabical and allegedly
holding
a stone in his back. She shouted for the appellant and beckoned with
her
hand for him to come to their house. Appellant came and told Fernando
to
go home because he was drunk. Instead, Fernando told him, "vulva of
your
mother I am always helping you but you are not helping me." With his
husband
calm, Alice went inside their house to continue cooking. When she went
out again, she saw the bloodied body of Fernando.[11]
Appellant testified
that Fernando was drunk and passed by the place where he was working.
Fernando
shouted at him, "vulva of your mother you have a fault against me." He
did not mind Fernando until his wife called for him to come home. When
he arrived at their house, Fernando continued insulting him. He placed
a hand on Fernando’s shoulder but the latter suddenly faced him and
struck
him with his right hand which was holding a stone. He bent and evaded
the
blow. While bent, he was able to pick up a wood with which he struck
Fernando.
Fernando fell to the ground. After verifying that Fernando was still
alive,
appellant left him and looked for a vehicle to bring him to the
hospital.
When he returned, however, he saw that there was already a vehicle that
would bring Fernando to the hospital. He no longer approached them and
merely watched from a distance.[12]
In the morning of December 4, 1996, he surrendered to Barangay Captain
Duro.[13]
The trial court convicted
appellant of murder. Thus:
"WHEREFORE,
finding Rolito Cabical y Esteban GUILTY beyond reasonable doubt of the
crime of Murder, he is hereby sentenced to suffer the penalty of
reclusion
perpetua, or 20 years and one day to 40 years; to pay the sums of
P50,000.00
as civil indemnity; P20,000.00 as moral damages; P44,000.00 as actual
damages,
and to pay the costs of the suit.chanrobles virtual law library
"So ordered."[14]
Appellant interposed
this
appeal, raising the following assignment of errors: I.
THE TRIAL COURT
GRAVELY
ERRED IN GIVING FAITH AND CREDENCE TO THE TESTIMONY OF JONEFER (sic)
PONTINO
INSTEAD OF THAT (sic) SELF-DEFENSE INTERPOSED BY THE APPELLANT.
II.
ASSUMING THAT
ACCUSED-APPELLANT
IS NOT ENTITLED TO THE JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE, THE
TRIAL
COURT ERRED IN NOT CONSIDERING IN FAVOR OF THE ACCUSED-APPELLANT THE
MITIGATING
CIRCUMSTANCE OF SUFFICIENT PROVOCATION ON THE PART OF THE OFFENDED
PARTY
WHICH IMMEDIATELY PRECEDED THE ACT.
III.
THE TRIAL COURT ALSO
ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCE OF TREACHERY.
IV.
ASSUMING FOR THE
SAKE
OF ARGUMENT THAT ACCUSED-APPELLANT IS GUILTY FOR THE DEATH OF REYNALDO
FERNANDO AND TREACHERY WAS PRESENT, HE SHOULD NOW ONLY BE HELD LIABLE
FOR
THE CRIME OF HOMICIDE CONSIDERING THAT TREACHERY WAS NOT ALLEGED IN THE
INFORMATION AS QUALIFYING AGGRAVATING CIRCUMSTANCE.[15]
Murder, as defined in
Article 248 of the Revised Penal Code, is committed by "(a)ny person
who,
not falling within the provisions of Article 246 (parricide) shall kill
another, x x x with any of the following attendant circumstances:
"1.
With
treachery, taking advantage of superior strength, with the aid of armed
men, or employing means to weaken the defense or of means or persons to
insure or afford impunity;
x
x
x
x x
x
x x x."
The justifying
circumstance
of self-defense is provided for in Article 11 of the Revised Penal
Code,
viz:
"Article
11.
Justifying circumstances. - The following do not incur any criminal
liability:
1. Anyone who acts
in
defense of his person or rights, provided that the following
circumstances
concur:
First. Unlawful
aggression;chanrobles virtual law library
Second. Reasonable
necessity
of the means employed to prevent or repel it;
Third. Lack of
sufficient
provocation on the part of the person defending himself.
x
x
x
x x
x
x x x."
Appellant justifies the
killing of Fernando as necessary to save himself. He claims that while
he was working in the house of Calimlim, Fernando passed by and shouted
insulting words at him. Thereafter, Fernando proceeded to his house,
continued
to insult him and then tried to strike him with his right hand which
was
holding a stone. He found a piece of wood, picked it up and used it to
strike Fernando in the nape in self-defense.
In self-defense, the
accused admits the killing of the victim. The burden to justify the
killing
shifts to him.[16]
The rule is that where the claim of self-defense is not corroborated by
independent and competent evidence, and is extremely doubtful, it
cannot
prosper.[17]
We cannot sustain appellant’s
claim of unlawful aggression. There is unlawful aggression when the
peril
to one’s life, limb or right is either actual or imminent.[18]
In this case, it is clear from the testimony of appellant that the
danger
to his life was not actual or imminent when he faced Fernando, viz:chanrobles virtual law library
"Q: As a matter of fact,
are you in effect telling the Court that you did not have any reaction
whatsoever when Reynaldo Fernando shouted those words to (sic) you
during
that time, is that correct?
A:
No sir, he usually did (sic) that whenever he passed (sic) by our house
and shouting (sic) those words, sir.cralaw:red
x
x
x
x x
x
x x x."
Q: In other
words, you simply took for granted this untoward act of Reynaldo
Fernando,
is that correct?
A:
Yes sir, I knew that he was drunk.[19]
x
x
x
x x
x
x x x."
Q: And at
that moment when Reynaldo Fernando faced you, the appearance of his
face
(sic) did not appear angry at that time?chanrobles virtual law library
A:
He looked angry, sir.chanrobles virtual law library
Q: Are you
telling the Court that when Reynaldo Fernando saw you at that distance
of about 2 meters, did he already flare up or become very angry (sic)?
A:
When we saw each other eye to eye, I could observe that his face was
angry,
sir.chanrobles virtual law library
Q: Actually,
he looked very, very angry at that time, is that correct?chanrobles virtual law library
A:
I could not state that he was very angry but I could observe that he
was
angry, sir.chanrobles virtual law library
Q: And your
observation that he was angry was not based on the appearance of his
face
at that time but was gauged merely by your internal feeling, is that
correct?
A:
Because I observed that his physical appearance was angry, I calmed
myself
and went near him, sir.cralaw:red
Q: In fine,
when you approached Reynaldo Fernando, you were not actually sure
whether
he was very angry at you, is that correct?
A:
Yes, sir.cralaw:red
Q: Because
according to you, it did not appear in his face, is that correct?
A:
Yes, sir.cralaw:red
Q: And so
since his face did not appear to be angry at you during that time, you
immediately approached Reynaldo Fernando and placed one of your hands
on
his shoulder, is that correct?chanrobles virtual law library
x
x
x
x x
x
x x x."
A:
Yes, sir."[20]
Assuming arguendo that
there was unlawful aggression, the aggression already ceased at the
time
appellant struck him with a stone. In his testimony, appellant admits
that
when he struck Fernando at the back, the latter was no longer in
possession
of the stone. Thus:
"Q: Am I correct in
saying that when you were actually in the process of picking (up) the
piece
of wood that Reynaldo Fernando had actually hit you with a piece of
stone
or I reform the question, your Honor. When you were actually in the
process
of reaching out for the piece of wood, did Reynaldo Fernando hit you
with
a piece of stone or was it during the moment when you have already
picked
up the piece of wood that Reynaldo Fernando hit you with a piece of
stone?
A:
Before I picked up the piece of wood, he tried to hit me but I evaded
the
blow, sir.cralaw:red
Q: Now,
in hitting you with a piece of stone, did Reynaldo Fernando actually
throw
the piece of stone at you?
A:
He did not throw the stone(.) (H)e was holding it and swung it towards
my body from the back to the front, sir.chanrobles virtual law library
Q: At the
moment when according to you, you subsequently struck Reynaldo Fernando
with a piece of wood, was Reynaldo Fernando still holding the piece of
stone or was there no more stone in his hand?chanrobles virtual law library
A:
No more, sir.cralaw:red
Q: In fine,
at the very moment when you struck Reynaldo Fernando with a piece of
wood,
Reynaldo Fernando was not at all holding any piece of stone, is that
correct?
A:
Yes, sir.cralaw:red
COURT:
Q: Where
did the stone go, if you noticed?
A:
When he tried to hit me and I evaded his blow, he hit my shoulder that
is why the stone was thrown away to the ground. (Witness pointing to
his
right shoulder.)"[21]
As was also ratiocinated
by the trial court:chanrobles virtual law library
"In her
testimony,
Alice (Cabical) initially did not mention the stone until defense
counsel
cunningly intercalated the stone by a question (See TSN, January 26,
1999,
p.7). A scrutiny of Exh. "1" reveals no stone mentioned. This is
significant
because the defense of the accused was that he killed the victim who
attacked
him with a stone. Without the stone, the plea of self-defense would
collapse.
And the inability of Alice to mention the stone in Exhibit "1" while
she
had a lot to say about it in her subsequent direct testimony and
cross-examination,
was intended to buttress the self-serving claim of Rolito that the
victim
attacked him with a stone."[22]
Moreover, the claim of
appellant that Fernando struck him first with a stone cannot be given
credence
over the testimony of eyewitness Pontino that he saw the appellant
strike
Fernando from the back without any aggression on the part of the latter
(Fernando). There is no showing that Pontino had any ill-motive to
testify
against the appellant.
The claim of self-defense
is also not corroborated by any other witness except the wife of
appellant.
As was noted by the Solicitor General, no other impartial or
disinterested
persons were presented to corroborate the testimony of appellant
although
there were other people working at the neighboring house of Calimlim.cralaw:red
It will further be noted
that when the policemen went to the house of appellant on the night of
the accident, he merely stayed in the kitchen. It was only his wife and
sister-in-law who faced Duro. Thus, the trial court correctly stressed
that such act was not consonant with his innocence. "Although he
invoked
safety for not talking to the police, this is not a good reason for him
to hide from them if it was really true that he acted in self-defense.
That he surrendered on the following day to the Barangay Captain was
too
late as by then he would have been able to think of a good story to
tell
the authorities albeit it was not true. For self-defense to be worthy
of
credence, admission of the same should be spontaneous."[23]
We likewise agree with
the trial court’s finding of treachery. Treachery is committed when the
offender commits any of the crimes against persons, employing means,
methods
or forms in the execution thereof which tend directly and specially to
insure its execution, without risk to himself arising from the defense
which the offended party might make.[24]
In the instant case, the prosecution was able to prove the sudden and
unexpected
attack on Francisco by appellant. Pontino narrated how appellant
practically
stalked Francisco in silence before he delivered the blow from the back
which cracked the victim’s skull and instantly rendered him
unconscious.
Being a credible witness, there is no further need for Pontino’s
testimony
to be corroborated.chanrobles virtual law library
The mitigating circumstance
of voluntary surrender should be appreciated in favor of the appellant.
First, he had not been actually arrested at the time he surrendered;
second,
he surrendered to a person in authority; and third, his surrender was
voluntary.[25]
Although he did not surrender to the policemen on the same night that
the
incident occurred, he did surrender himself to the barangay captain
early
the next day. Besides, when the policemen came that night, they were
not
looking for a specific person but were merely inquiring about the
incident
that happened in front of the house of appellant. There is no dispute
that
early the very next day, appellant surrendered himself to a person in
authority
and admitted the killing, before a warrant for his arrest was issued.
In
People v. Bautista,[26]
we considered as a mitigating circumstance the voluntary surrender of
the
accused to a police authority four (4) days after the commission of the
crime.cralaw:red
With regard the civil
liability of the appellant, the award by the trial court of P50,000.00
as civil indemnity is in accord with recent jurisprudence. The widow of
the victim is also entitled to P50,000.00 as moral damages for the
anguish
she suffered for the sudden death of her husband. As to the actual
damages,
it has been consistently ruled that the party must produce competent
proof
or the best evidence obtainable to justify such award. In People v.
Judy
Matore y Guevara,[27]
we held that a list of expenses cannot replace receipts when the latter
should have been issued as a matter of course in business transactions.
Thus, in the case at bar, the transportation and hospitalization
expenses
which were not supported by receipts cannot be included in the
computation.
Moreover, the expenses relating to the 40th day and first year death
anniversary
of Fernando cannot be considered as actual expenses because of the
lapse
of a considerable time from his death.[28]
The award of P44,000.00 granted by the trial court is therefore reduced
to P27,040.00.cralaw:red
The widow, Esperanza,
also testified that she lost a source of income for her family due to
the
death of her husband, who she claimed had an annual income of
P124,290.00
from farming and from the business of buying and selling of cows,
carabaos,
and pigs. Of the P124,290.00, P81,600 or P6,800.00 per month comes from
the business of buying and selling of animals, while P42,690.00 comes
from
farming. In People v. Panabang,[29]
we laid down the rule that "for lost income to be recovered, there must
be an unbiased proof of the deceased’s average, not just gross,
income."
Although in general, testimonial evidence is insufficient to
substantiate
a claim for damages for loss of earning capacity, testimonies of the
relatives
on the income of the deceased have been allowed to prosper when
documentary
evidence is unavailable, such as when the deceased is self-employed and
the amount claimed is reasonable.[30]
Esperanza stated that her late husband used to sell 3 cows, 2 carabaos
and 10 pigs per month. However, it is of judicial notice that the buy
and
sell of animals is a seasonal business. There are certain months of the
year when business is good, such as during the fiesta and Christmas
seasons.
In the same manner, there are times when business is bad. In the
exercise
of our discretion, we reduce the claim of Esperanza to a reasonable
amount.
We compute the award for the loss of income of Fernando, as follows:chanrobles virtual law library
Net annual
income = (Annual income) - (necessary and incidental expenses computed
at 50% of the annual income)chanrobles virtual law library
Net annual income
=
P100,000.00 - 50,000.00chanrobles virtual law library
Net annual income
=
P 50,000.00chanrobles virtual law library
Life expectancy =
2/3
x (80 - age during the time of death)chanrobles virtual law library
Life expectancy =
2/3
x (80 - 45)chanrobles virtual law library
Life expectancy =
23.33chanrobles virtual law library
Loss of earning
capacity
= (net annual income) x (life expectancy)chanrobles virtual law library
Loss of earning
capacity
= P50,000.00 x 23chanrobles virtual law library
Loss of earning
capacity
= P1,150,000.00[31]
IN VIEW WHEREOF, we
modify
the appealed decision of the Regional Trial Court and find the
accused-appellant
Cabical GUILTY beyond reasonable doubt of the crime of MURDER,
punishable
under Article 248 of the Revised Penal Code. The mitigating
circumstance
of voluntary surrender is credited in his favor, thus he is sentenced
to
a penalty of reclusion perpetua. He is further ordered to pay the heirs
of Fernando civil indemnity of P50,000.00, moral damages of P50,000.00,
actual damages of P27,040.00 and P1,150,000.00 for loss of earning
capacity.
SO ORDERED.cralaw:red
Panganiban, and
Carpio-Morales,
JJ., concur.
Sandoval-Gutierrez,
and Corona, JJ., on leave.
____________________________
Endnotes:
[1]
Rollo, p. 6.
[2]
TSN, Joniper Pontino, March 24, 1998, pp. 4-17 and TSN, Joniper
Pontino,
April 1, 1998, pp. 2-17.
[3]
TSN, Joniper Pontino, March 25, 1998, pp. 5-8.chanrobles virtual law library
[4]
TSN, Danilo Duro, May 14, 1998, pp. 5-8.
[5]
TSN, Danilo Duro, May 20, 1998, pp. 2-4.
[6]
TSN, Dr. Elpidio Quines, July 7, 1998, p. 2.
[7]
TSN, Dr. Elpidio Quines, June 16, 1998, pp. 5 and 11-12.
[8]
TSN, Esperanza Fernando, September 17, 1998, pp. 6-9.chanrobles virtual law library
[9]
TSN, Esperanza Fernando, July 7, 1998, pp. 11-13; TSN, Esperanza
Fernando,
July 23, 1998, pp. 2-12; TSN, Esperanza Fernando, August 18, 1998, pp.
2-5; and TSN, Esperanza Fernando, August 19, 1998, pp. 2-7.chanrobles virtual law library
[10]
TSN, Esperanza Fernando, August 19, 1998, pp. 7-10; and TSN, Esperanza
Fernando, September 17, 1998, pp. 2-5.
[11]
TSN, Alice Cabical, January 26, 1999, pp. 3-8; and TSN, Alice Cabical,
January 27, 1999, pp. 2-6.
[12]
TSN, Rolito Cabical, August 25, 1999, pp. 2-6.chanrobles virtual law library
[13]
TSN, Rolito Cabical, September 7, 1999, pp. 8-9.
[14]
Rollo, p. 86.chanrobles virtual law library
[15]
Id. at 108-109.chanrobles virtual law library
[16]
People of the Philippines vs. Bonifacio, G.R. No. 133719, February 5,
2002.
[17]
Paddayuman vs. People of the Philippines, G.R. No. 120344, January 23,
2002.
[18]
People vs. Crisostomo, 108 SCRA 288 (1981).
[19]
TSN, Rolito Cabical, November 16, 1999, pp. 5-6.
[20]
Id. at 6-8.chanrobles virtual law library
[21]
TSN, Rolito Cabical, March 8, 2000, pp. 3-4.
[22]
Rollo, p. 82.
[23]
Id. at 84.chanrobles virtual law library
[24]
Art. 14, par. 16, Revised Penal Code; People vs. Lacao, Sr., 201 SCRA
317
(1991).
[25]
People of the Philippines vs. Antonio, et al., G.R. No. 128900,
July
14, 2000.
[26]
254 SCRA 621 (1996).
[27]
G.R. No. 131874, August 22, 2002.chanrobles virtual law library
[28]
People vs. Mangahas, 311 SCRA 384 (1999).
[29]
G.R. Nos. 137514-15, January 16, 2002, cited in People vs. Cuenca, G.R.
No. 143819, January 29, 2002; People vs. Dadivo, G.R. No. 143765, July
30, 2002; People vs. Rabanal, G.R. No. 146687, August 22, 2002.chanrobles virtual law library
[30]
People vs. Villarba, 344 SCRA 464 (2000).
[31]
People vs. Jimmy Rubiso, G.R. No. 128871, March 18, 2003. |