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SECOND DIVISION

G. R. No. 150607 - November 26, 2004

SANCHO MILITANTE, Petitioner, vs. PEOPLE OF THE PHILIPPINES and the COURT OF APPEALS, Respondents.


D E C I S I O N


CALLEJO, SR., J.:

On June 7, 1994, petitioner Sancho Militante was charged with the complex crime of attempted and frustrated homicide in an Information filed with the Regional Trial Court (RTC) of Iriga City, the accusatory portion of which reads:

That on or about the 12th day of March 1994 at about 11:30 oclock (sic) in the evening, at Barangay Dolorosa, Municipality of Nabua, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, armed with a handgun, did then and there willfully, unlawfully and feloniously shoot with said handgun one Joven Sombrero but instead hit Maricris Torriente, a girl, 13 years old, hitting her on her body thus accused have (sic) performed all the acts of execution which would have produced the crime of homicide but nevertheless did not produce it by reason or causes independent of the will of the accused that is by the timely and able medical attendance rendered to said Maricris Torriente which prevented her death, to her damage and prejudice as to be proven in court.

ACTS CONTRARY TO LAW.1

In due course, the prosecution adduced evidence showing that -

On March 12, 1994, about 11:30 oclock (sic) in the evening at Barangay Dolorosa, Nabua, Camarines Sur, during the barangay fiesta, a dance was in progress at the hall which was about ten (10) meters away from the barangay chapel. (Tsn, Nov. 10, 1994, p. 12)

At the same time and date, Dolorosa Barangay Tanod Ramon Orante was in front of the chapel mentioned above as he was on duty to maintain peace and order during the fiesta. While thus situated, Orante saw the appellant and some persons drinking beer inside the dance hall. At that time, the appellant was a policeman stationed at Nabua, Camarines Sur. After the group consumed more than two (2) bottles of Beer Grande, the appellant left the dance hall. Orante saw him walking towards the chapel in a zigzag manner (Tsn, Nov. 10, 1994, p. 11). Then [the] appellant saw Joven Sombrero, a soldier, and sat with him on the pavement. Orante later saw the appellant and Sombrero arguing. The appellant was apparently drunk as he was sitting on the pavement and would pull Sombrero down everytime he would stand up (Tsn, Nov. 10, 1994, pp. 3, 5 & 10; Nov. 23, 1994, p. 11).

In order to pacify the appellant and Sombrero, Orante and another barangay tanod were ordered by the Barangay Chairman to fetch Cornelio Bermido, Jr., a policeman. Upon Bermidos arrival at the scene, he tried to stop the argument by telling the appellant that he and Bermido were both policemen. Somehow, Sombrero invited Bermido and the appellant to join him (Sombrero) inside the hall where the dance was in progress. The appellant said that he did not like that, and the argument went on, with the appellant insisting that he was a veteran of 13 years in the service and Sombrero countering that he had just come from a mission. The argument worsened such that Sombrero and the appellant went around a parked motorcycle as they argued. Then, the appellant drew a gun from his waist. This prompted Bermido to lead Sombrero away from the appellant towards the chapel. While they were walking away, the appellant having drawn his gun from his waist, fired it at Sombrero. Instead of hitting Sombrero, appellant hit 13-year-old Maricris Torriente who was passing by and who thereby fell on the ground (Tsn, Nov. 10, 1994, p. 6). Orante could not assist Maricris Torriente immediately because the appellant continued to hold his gun. In a few minutes, the appellant fled on a motorcycle driven by his companion, SPO3 Manuel Relativo, a policeman also stationed at Nabua, Camarines Sur.

[The] appellant having fled from the premises, Orante picked the bloodied Maricris Torriente up and asked one Indet Laynesa to take her to the hospital. She was taken to the Holy Child Hospital, then to the Bicol Regional Hospital at Nabua, Camarines Sur (Tsn, Nov. 10, 1994, pp. 7-8, Nov. 24, 1994, p. 4).

Ruben Torriente, the father of Maricris Torriente, came to know of the shooting at about past 11 oclock in the evening on March 12, 1994 through his aunt. When he went to the chapel in the barangay, he learned from the Barangay Chairman that her daughter, Maricris, had been shot by the appellant (Tsn, Nov. 24, 1994, pp. 2-5). Later, when he went to the Bicol Regional Hospital, he was told that the condition of his daughter was 50/50. Her critical condition lasted for seventy-two (72) hours. Maricris stayed at the hospital for nineteen (19) days and all in all, Ruben Torriente spent P55,000.00 for doctors fees, medicines and related expenses (Tsn, Nov. 24, 1994, pp. 5-7). After Maricris was discharged from the Bicol Regional Hospital, he noticed that his daughter did not feel well, so he brought her to the Figuracion Clinic at Nabua, Camarines Sur, where she was attended to by Dr. Fabio F. Figuracion. According to Ruben Torriente, Maricris was operated on by Dr. Figuracion and a bullet/slug was removed from her body (Tsn, Nov. 24, 1994, pp. 5-7). He spent another P16,000.00 for the operation (Tsn, Nov. 24, 1994, p. 6).

Dr. Wulfrano Ricafort, Jr., surgeon, Bicol Regional Hospital, Nabua, Camarines Sur, was the attending physician when Maricris Torriente was admitted to that hospital on March 13, 1994 at 2:20 a.m., where she was operated on. She had two (2) perforations on her small bowel, one (1) perforation on her large bowel and her right kidney was almost shattered. The operation made both ends of her small bowel meet, sutured the hole on her large bowel, and removed her right kidney to stop its bleeding (t.s.n., Jan. 24, 1996, pp. 7-8). Dr. Ricafort issued a Medical Report stating her physical condition as follows:

Gunshot wound, 0.5 cm. (pt of entry), periumbilical right

Gunshot wound, 0.8 cm. (pt of exit), 9th MSL, right.

Perforating ileum, 2 pts. Perforating colon, 1 pt. Penetrating

lower pole right kidney.

(Exh. B, Rec., p. 167)

Dr. Ricafort testified that without the timely medical intervention, Maricris Torriente would have died (Tsn, Jan. 24, 1996, p. 7).2

As culled by the trial court in its decision, the evidence of the petitioner is as follows:

As evidence for the defense, SPO3 Manuel Relativo, a member of PNP, Nabua, Camarines Sur, claimed that he was the officer-in-charge of the PNP substation at Tandaay, Nabua, Camarines Sur on March 12, 1994.

That evening of March 12, 1994, he was the team leader of the police team composed of SPO1 Sancho Militante, SPO2 Jaime Blazado and himself, to maintain peace and order at Barangay Dolorosa, Nabua, Camarines Sur, on the occasion of the barrio fiesta.

He assigned SPO1 Militante at the gate of the dancing (sic) hall while they went inside the dancing (sic) hall to patrol. While going around the dancing (sic) hall, he heard a shot. He first tried to observe and he saw SPO1 Militante chasing a man. Upon seeing this, he went to the place of the incident and inquired of Militante what happened. Militante told him that there was a man who tried to grab his firearm tucked at his waist (TSN, March 5, 1996, p. 8). As the man was already in the dark place, they did not pursue him anymore. He later learned the identity of the man as Joven Sombrero. He learned from Militante that when they were grappling for the possession of the gun, it went off. He then later advised Militante that they better go back to the barracks which they did.

When they left the place, there was no complaint of anybody being shot. They learned that a person was shot only in the morning when informed by their Station Commander.

Rolando Manalo, a businessman and resident of Sto. Domingo, Nabua, Camarines Sur, was trying to buy a ticket at the gate to be able to enter the dancing (sic) hall when he saw Joven Sombrero box Militante and grab the gun of Militante tucked in his waist. Then he heard a gunshot. At the precise time the gun fired, Joven Sombrero had already the possession of the gun. After he heard the gunshot, he and his companion parted ways and he hid near the chapel (TSN, March 19, 1996, p. 3). Then he saw Joven Sombrero go back to the place of the incident carrying two hand grenades. Militante and his companion, however, already left the place at about 1 to 2 oclock in the morning. He did not know if somebody was hit when the gun fired.

Sancho Militante, testifying in his behalf, claimed that in the evening of March 12, 1994, together with SPO3 Relativo and SPO2 Blazado, he was at the dancing (sic) hall of Barangay Dolorosa, Nabua, Camarines Sur, to maintain peace and order. While there, Barangay Captain Quiniano arrived with a companion who was introduced to him as a comrade in arm and his name was Joven Sombrero. After the introduction, the Barangay Captain left, leaving him and Sombrero together. Sombrero invited him to accompany him inside the dancing (sic) hall because he has (sic) a table thereat. He refused, however, to accompany him as he was on duty near the gate. As he refused to go with Sombrero inside, Sombrero kept on uttering in this wise, "You are just a policeman and I just come (sic) from operation," pushed him away and grabbed his gun which was tucked on his waist. He was able to hold the barrel of the gun while they were grappling for the possession of the gun. It was while grappling for the gun that the gun fired. He was shocked by the shot that the gun dropped to the ground and he picked up the gun. Sombrero ran away to the dark portion of the dancing (sic) hall. He tried to chase Sombrero but as people were scampering away in different directions he did not follow Sombrero anymore. After the shot, his companion went out of the dancing (sic) hall and SPO3 Relativo asked him what happened. He told Relativo that Joven Sombrero, the man introduced to him by the Barangay Captain as a military man, grabbed his gun because he refused to go with him inside the dancing (sic) hall (TSN, March 28, 1996, p. 9). That evening he did not know if somebody was hit by the gunshot. He only learned about it when [he was] told by the Station Commander. He requested the Station Commander to file a case against Joven Sombrero. As Major Moratalla was already transferred to another assignment, he did not know anything more about the complaint (TSN, March 28, 1996, p. 13).

On cross-examination, accused admitted that before they went to the dancing (sic) hall he was, together with his co-police officers and Barangay Captain Quiniano, at the shop of Antonio Lorzan drinking beer (TSN, March 28, 1996, p. 15). He knew of the police blotter entry on March 12, 1994 recorded at 2:00 oclock (sic) where he was recorded as the gunwielder only a week after the incident. When the Station Commander, however, came to see him in the morning after the incident, he was already informed that a report was made pointing to him as the culprit in the incident now subject of this case (TSN, March 28, 1996, p. 21).3

The trial court, thereafter, rendered judgment convicting the accused of the crime charged. The fallo of the decision reads:

WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime herein charged, as principal thereof, without any mitigating or aggravating circumstance attending the commission of the crime, and consequently sentences accused to an indeterminate penalty ranging from 2 years, 4 months and 1 day of Prision Correccional, as minimum, to 8 years and 1 day of Prision Mayor, as maximum, to indemnify Maricris Torriente, thru Ruben Torriente, P72,000.00 as actual damages, P50,000.00 moral damages, and to pay the costs.

SO ORDERED.4

On appeal to the Court of Appeals, the petitioner raised the following issue:

WHETHER SANCHO MILITANTE DREW HIS SERVICE PISTOL WHILE CORNELIO BERMIDO, JR. AND JOVEN SOMBRERO WERE WALKING AWAY FROM HIM OR WHETHER MILITANTE AND SOMBRERO WERE GRAPPLING FOR THE POSSESSION OF THE GUN THAT ACCIDENTALLY WENT OFF AND HIT MARICRIS TORRIENTE.5

On June 4, 2001, the Court of Appeals rendered judgment affirming with modification the decision of the RTC. The fallo of the decision reads:

WHEREFORE, this Court MODIFIES the appealed Decision and CONVICTS the accused-appellant Sancho Militante of the Complex Crime of Attempted Homicide with Frustrated Homicide and SENTENCES him to suffer the indeterminate penalty of six (6) years of prision correccional as minimum to twelve (12) years of prision mayor as maximum and to pay Maricris Torriente P72,000.00 as actual damages, P50,000.00 as moral damages, and costs of the suit.

SO ORDERED.6

The petitioner now comes to this Court via a petition for certiorari under Rule 65 of the Rules of Court, praying that the Court rule on the following issues:

1. WHETHER OR NOT THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION IN ISSUING A DECISION NOT BASED ON FACTS, EVIDENCE AND THE LAW.

2. WHETHER OR NOT THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION IN ISSUING A RESOLUTION NOT BASED ON FACTS, EVIDENCE AND THE LAW.7

The petitioner avers that the respondent failed to prove his guilt of the crime charged. He posits that the trial and appellate courts reliance on the testimonies of Barangay Tanod Ramon Orante and Cornelio Bermido, Jr. is misplaced because their testimonies were frontally inconsistent; hence, barren of probative weight. The petitioner catalogued the inconsistencies as follows:

Prosecution witness, Ramon Orante testified that:

a) He never mentioned Cornelio Bermido, Jr., when allegedly Sancho Militante drew his handgun and pointed it to a man named Sombrero (3-A of SS), yet, Bermido was allegedly with Sombrero when Militante drew his gun and allegedly fired the same (Tsn, pp. 6 & 13, 11/10/94).

b) On direct examination under Tsn, 11/10/94, he testified that it WAS THE FIRST TIME HE SAW MILITANTE (Tsn, p. 3) but on the cross, it WAS THE SECOND TIME HE MET MILITANTE (Tsn, p. 8). Further, on direct, he testified that Militante and Sombrero were drinking together sitting on the pavement (Tsn, pp. 4-5), while on cross, he saw Militante drinking inside the dance hall, in (sic) the table (Tsn, p. 10).

c) He also alleged under oath that Maricris fell down and he was about to help her but afraid that the gun of Militante might be fired again as Militante was still holding the gun, he just left the place looking for any vehicle to board the victim (4-a of SS), yet, on direct examination, he picked up the child when Militante left (Tsn, p. 7, 11/10/94).

d) He testified also that Militante was four (4) meters from Bermido and Sombrero and he was ten (10) meters from Militante (Tsn, p. 14, 11/10/94) and the distance between Militante and the girl, who was hit, was "maybe four (4) meters" and the distance of the girl to Bermido and Sombrero was "may be one and one fourth (1-) feet" (Tsn, p. 15, 11/10/94).

If Bermido and Sombrero, and the girl, were four (4) meters from Militante, and Bermido and Sombrero were one and one-fourth (1-) feet from the girl, Bermido testified that when Militante drew his gun, Sombrero was "about one and one-half meters from the former" (Tsn, p. 14, 11/23/94), hence, MILITANTE was 1- meters from Sombrero; 4 meters from Bermido; and 4-meters & 1- feet from the girl. It does not make sense. MILITANTE could not miss Sombrero at that distance of 1- meters, if indeed he shot Sombrero. And it was impossible for Orante NOT TO SEE THE GIRL.

Orante and Bermido SAW Militante and Sombrero on the pavement, but it was ONLY ORANTE who noticed that everytime Sombrero stood up, Militante pulled him down (Tsn, p. 5, 11/10/94), while ONLY BERMIDO noticed that Militante and Sombrero were moving/chasing each other around a motorcycle (Tsn, p. 7, 11/23/94). Orante testified that when the gun barked, Bermido and Sombrero reacted by "turning and faced Militante (Tsn, p. 14, 11/10/94), yet ONLY BERMIDO turned his back when the gun fired." (Tsn, pp. 8 & 15, 11/23/94)

How can Orante and Bermido witnessed (sic) an entirely different scenario at the same time and place? With different testimonies which do not jive (sic) on all fours?8

The petitioner insists that the trial court and the Court of Appeals erred in not giving credence to his testimony and that of his witness, Rolando Manalo. He points out that Manalo testified that Sombrero and the petitioner were grappling for the latters gun; as the petitioner held the barrel of the weapon while Sombrero grasped its handle, the gun fired and hit Maricris Torriente. Evidently, the petitioner posits, it was Sombrero who shot Maricris, and not him. The petitioner asserts that the testimony of Dr. Wulfrano Ricafort, Jr. that the wound sustained by Maricris was "through-and-through," is inconsistent with the Medical Certificate of Dr. Fabio Figuracion that he recovered a slug from the body of the victim.9

In its comment on the petition, the Office of the Solicitor General asserts that the remedy resorted to by the petitioner is inappropriate. It contends that the petitioner should have appealed to this Court via a petition for review on certiorari under Rule 46 of the Rules of Court, which reads:

SECTION 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. (1a,2a)

The OSG further posits that, as gleaned from the averments of the petition, the errors ascribed on the Court of Appeals are errors of judgment, not correctible by a cert writ.

The petition is dismissed.

We agree with the Office of the Solicitor General that the petition at bar should be dismissed. As gleaned from the petition, the petitioner received, on June 11, 2001, a copy of the decision of the Court of Appeals and filed, on June 26, 2001, a motion for the reconsideration of the decision. The petitioner received, on September 20, 2001, a copy of the Resolution of the CA denying his motion for reconsideration.

Under Section 2, Rule 45 of the Rules of Court,10 the petitioner had until November 1, 2001 within which to file a petition for review on certiorari, on questions of law under said Rule. However, the petitioner filed his petition in this Court only on November 19, 2001. By then, the decision of the Court of Appeals had become final and executory, beyond the jurisdiction of this Court to review, modify or reverse.11

The petitioner is proscribed from filing a petition for certiorari under Rule 65 of the Rules of Court. The petition for certiorari under said rule cannot be resorted to as a substitute for the lost remedy of appeal.12

Besides, the errors ascribed to the Court of Appeals are errors in the assessment, by the Court of Appeals, of the evidence on record and the testimonies of the witnesses of the prosecution, vis-à-vis, that of the petitioner and his witnesses. Such errors, even if true, are errors of judgment not correctible by a cert writ.

Even if we consider the petition as one for review on certiorari and timely filed, nevertheless, we find and so rule that the Court of Appeals decision is in accord with law and the evidence.

First. The errors ascribed to the trial court and to the Court of Appeals, namely, their giving credence and probative weight to the collective testimonies of the prosecution witnesses, are mere errors of judgment committed in the exercise of their jurisdiction not correctible by a writ of certiorari under Rule 65 of the Rules of Court.13

Second. Whether or not a witness is credible and his testimony deserving of full probative weight are factual and not jurisdictional issues. Only jurisdictional issues are proper in a petition for certiorari under Rule 65 of the Rules of Court.14

Third. The findings of facts of the trial court, affirmed by the Court of Appeals, and their conclusions anchored on such findings are accorded by this Court conclusive effect, unless it is shown that the trial court ignored, misunderstood or misinterpreted cogent facts and circumstances of importance which, if considered, would warrant a modification or reversal of the outcome of the case.15 We have carefully reviewed the records of the RTC, the Court of Appeals, as well as the pleadings of the parties in the case at bar, and we find no justification to overrule or even modify the findings and conclusions of the trial and appellate courts.

1. The credibility of Orante, as a witness, is not enfeebled by his failure to mention Cornelio Bermido, Jr. in the affidavit he gave to the Office of the City Prosecutor on March 16, 1994.16 The Court takes judicial notice that affidavits are ex parte and, oftentimes, incomplete and erroneous.17 The testimony of Orante should prevail over his affidavit.

Furthermore, the counsel of the petitioner failed to cross-examine Orante and to confront the latter with his failure to mention the name of Bermido in his affidavit.

2. The petitioners contention that Orante testified that he saw the petitioner and Sombrero sitting on the pavement is belied by the transcript of stenographic notes taken during Orantes testimony.

3. We agree with the Court of Appeals that the petitioner has the penchant of taking things out of context to make it appear that an inconsistency exists when in reality there is none. As found by the appellate court:

In the same manner, the question of whether the scene of the crime was well lighted, the relative distances between the parties, or the extent of time when the parties had an argument, are questions dependent upon the perception of a person. Thus, variances on this point are, likewise, inconsequential. Be that as it may, it is a well-settled rule that different people react differently to a given situation, there being no standard form of human behavioral response when one is confronted with a strange, startling or frightful experience. 18

4. It was not impossible for the petitioner to miss Sombrero despite their proximity. After all, the petitioner was already inebriated and even walked in "a zigzag manner."19 Contrary to the contention of the petitioner, the records show that Orante saw how Maricris was shot and after the petitioner fled on board a motorcycle, Orante asked someone to bring her to the hospital.20

5. Bermido did not see the petitioner push Sombrero down while the petitioner and Sombrero were arguing because at the time the incident occurred, he was in his house where he was fetched by two barangay tanods, including Orante.

6. The exact moment when Bermido saw the petitioner push Sombrero down is inconsequential. What is of prime importance is that Bermido was present when the petitioner shot Maricris.

7. The petitioners attempt of putting the blame on Sombrero for the injuries sustained by Maricris is a futile afterthought. Maricris, Orante and Bermido identified and pointed to the petitioner as the culprit. The petitioner did not even bother to file a counter-affidavit during the preliminary investigation conducted by the Municipal Circuit Trial Court. The petitioner, a policeman, even failed to report that it was Sombrero who shot Maricris. Worst still, the petitioner fled from the situs criminis. His flight from the scene of the crime is an implied admission of his guilt.21

8. Likewise inconsequential is the issue of whether the victim suffered a through-and-through wound or not. What is decisive is the fact that the petitioner shot the victim.

9. Orante had no ill motive to point to and declare that it was the petitioner who shot the victim. Absent such ill-motive, the presumption is that Orante testified in good faith and pointed to the petitioner as the culprit because it was precisely the latter, not Sombrero, who shot the victim.

In fine, the decision of the Court of Appeals is in accord with law and the evidence on record.

IN LIGHT OF ALL THE FOREGOING, the petition is DISMISSED. Costs against the petitioner.

SO ORDERED.

Puno, (Chairman), Tinga, and Chico-Nazario, JJ., concur.
Austria-Martinez, J., no part, concurred in CA decision.



Endnotes:

1 Records, p. 1.

2 Rollo, pp. 58-61.

3 CA Rollo, pp. 37-39.

4 Id. at 42.

5 Id. at 24.

6 Id. at 87.

7 Rollo, p. 5.

8 Id. at 5-6.

9 Exhibit "B."

10 Sec. 2. Time for filing; extension The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioners motion for new trial or reconsideration filed in due time after notice of the judgment. On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Supreme Court may for justifiable reasons grant an extension of thirty (30) days only within which to file the petition. (1a,5a)

11 Jacob v. Commission on Elections, 353 SCRA 70 (2001).

12 Cano-Gutierrez v. Gutierrez, 341 SCRA 670 (2000).

13 People v. Chavez, 358 SCRA 810 (2001).

14 Resoso v. Sandiganbayan, 319 SCRA 238 (1999).

15 People v. Silongan, 401 SCRA 459, (2003).

16 Exhibit "I."

17 People v. Silvano, 350 SCRA 650 (2001); People v. Tolentino, 352 SCRA 228 (2001).

18 Rollo, p. 17.

19 TSN, 10 November 1994, p. 11.

20 Id. at 16-17.

21 People v. Almazan, 365 SCRA 373 (2001).




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ww.chanrobles.com/scdecisions/jurisprudence2001/jan2001/gr_125923_2001.php">People v. Silvano, 350 SCRA 650 (2001); People v. Tolentino, 352 SCRA 228 (2001).

18 Rollo, p. 17.

19 TSN, 10 November 1994, p. 11.

20 Id. at 16-17.

21 People v. Almazan, 365 SCRA 373 (2001).




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