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SECOND DIVISION

G.R. No. 101576 June 27, 1994

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RESTITUTO PERCIANO y CAMACHO, JOHN DOE, PETER DOE, accused-appellant(s).

The Solicitor General for plaintiff-appellee.chanrobles virtual law library

Hermenegildo A. Delgado for accused-appellant.

PUNO, J.:

Accused was charged with Attempted Robbery with Homicide before the Regional Trial Court of Quezon City. ¹The Information, ²dated October 30, 1989, reads:

That on or about the 26th day of October, 1989, in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, with intent to gain, by means of violence upon person, did then and there wilfully, unlawfully and feloniously commence the commission of robbery directly by overt acts, by then and there attempting to rob EPITACIO AGANAN y SORBITO, in the following manner, to wit: on the date and place aforementioned, the said complainant who was then driving his Tamaraw Pick-Up with place
No. NGR-256 along Janet St., San Miguel Subdivision, Tandang Sora, this City, the above-named accused boarded said Tamaraw Pick-up and upon reaching Visayas Avenue, Brgy. Vasra, this City, accused Restituto Perciano y Camacho armed with a gun ordered the complainant to stop then announced a hold-up, but said accused did not perform all the acts of execution which would produce robbery by reason of some cause or accident other than their own spontaneous desistance, that is, complainant immediately started the engine of his vehicle, prompting the accused to shoot said Epitacio Aganan y Sorbito, hitting the latter on his right armpit, thereby inflicting upon him serious and mortal gun-shot-wound which was the direct and immediate cause of his death, to the damage and prejudice of the heirs of said Epitacio Aganan y Sorbito, in such amount as may be awarded to them under the provisions of the Civil Code.chanroblesvirtualawlibrarychanrobles virtual law library

Contrary to law.

Upon arraignment, accused Restituto Perciano y Camacho pleaded not guilty. ³He underwent trial. ⁴chanrobles virtual law library

The facts:chanrobles virtual law library

The victim Epitacio Aganan was a fish vendor. On October 26, 1989, he was to go to Navotas Fishport to buy fish. At around 10:35 P.M., that same day, Epitacio, his daughter Rhodora Aganan, and two (2) other companions, namely, Flora Fuentes and Sancho Ignacio, headed for the fishport on board a Tamaraw pick-up vehicle. Epitacio was the driver. Seated beside him was Rhodora. Sancho and Flora, on the other hand, sat at the back portion of the Tamaraw. While they were passing along Janet Street, more or less one (1) kilometer from the Aganan residence, ⁵three (3) men flagged down their vehicle and said "Manong, makikisakay ho." Epitacio acceded saying: "Sige, diyan sa likod." ⁶Rhodora thus asked her father who those men were. His father replied: "Mga taga diyan lang." ⁷One of the three (3) men, later identified as accused Restituto Perciano y Camacho, sat opposite Flora. He was wearing a maong jacket and a security guard outfit. ⁸chanrobles virtual law library

Upon reaching Ledesma Court, along Visayas Avenue, the three men requested Epitacio to stop the Tamaraw as they were going to alight. As soon as they alighted, accused Perciano, walked towards the right side of the vehicle, announced a "hold-up" and poked a gun on Epitacio. Nervous, Rhodora looked out of the window and saw Restituto from half a meter distance holding a gun with his left hand. The gun was fired and Epitacio was hit on the right armpit. Epitacio stepped on the accelerator, leaving behind the hold-uppers who immediately fled.chanroblesvirtualawlibrarychanrobles virtual law library

After a short distance, the wounded Epitacio lost control of the vehicle which crashed against a Meralco lamp post. He collapsed on Rhodora's lap. Rhodora shouted for help. People came and rushed Epitacio to the East Avenue Medical Center. He was dead on arrival.chanroblesvirtualawlibrarychanrobles virtual law library

The autopsy conducted on the victim revealed the following:

CAUSE OF DEATH: Hemorrhage, severe, secondary to gunshot wound.

REMARKS: - One (1) deformed slug was recovered, submitted to Firearms Investigation Section, NBI, for examination. (emphasis ours)

(Autopsy Report No. N-89-3419) ⁹chanrobles virtual law library

Previous to the incident, or at around 9:00 P.M., on October 26, 1989, Norma Lopez, caretaker of a sari-sari (variety) store along Janet Street, saw the accused and two (2) other men within the vicinity. They were walking back and forth across the street. Later, accused Restituto approached her and asked for one (1) bottle of Coke solo. Accused was wearing a security guard uniform. She, however, failed to see his name tag as he was wearing a maong jacket. ¹⁰After giving him the softdrink, he returned to his companions who were waiting for him across the street. While they were drinking, she struck a conversation with them. They told her they were waiting for somebody. After an hour, the Tamaraw driven by Epitacio Aganan, whom she had known for three (3) years, passed by. She saw Rhodora and two other companions on board the Tamaraw. Accused and his companions then left without paying for the softdrink. They boarded the Tamaraw driven by Epitacio.chanroblesvirtualawlibrarychanrobles virtual law library

The defense was anchored on alibi and denial.chanroblesvirtualawlibrarychanrobles virtual law library

Restituto Perciano was allegedly in his post in San Pedro IV Subdivision, Tandang Sora, Quezon City from 8:00 P.M. on October 26, 1989, until 6:00 A.M. the following day. He and his co-security guard, Rufo Dabban, Jr. engaged in small talk for thirty minutes. Restituto was then complaining that he had a hard time sleeping. Thereafter, Rufo proceeded to his post some seventy five meters away from Restituto's post.chanroblesvirtualawlibrarychanrobles virtual law library

At twelve midnight, Rufo blew his whistle, a standard operating procedure to verify whether the security guards on duty were awake. The whistle did not draw any response from Restituto. Rufo then checked on Restituto and found the latter sleeping at his post. He woke him up. Restituto stood up and blew his whistle as Rufo returned to his post. The next day, October 27, 1989, at 6:00 A.M., Rufo and Restituto went home.chanroblesvirtualawlibrarychanrobles virtual law library

At 8:00 P.M. of the same day, accused Restituto Perciano and Rufo Dabban, Jr., again reported for work. The policemen came and took them to the police station for investigation. Restituto Perciano was identified by Rhodora as the gunman. Subsequently, the suspects were brought to Camp Crame and subjected to a paraffin test. Chemistry Report C-1650-89 showed these findings:

FINDINGS:

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1. The left hand of RESTITUTO PERCIANO gave POSITIVE result to the test for gunpowder nitrates while the right hand gave a negative result; (emphasis ours)chanrobles virtual law library

2. Both hands of RUFO DABBAN gave a NEGATIVE result to the test for gunpowder nitrates.

Three (3) sample bullets, fired from the service gun ¹¹of Restituto, were tested vis-a-vis the fatal bullet (marked "EA") recovered from the body of the victim. The test conducted by the Firearms Investigation Section of the National Bureau of Investigation concluded as follows: ¹²

FINDINGS-CONCLUSION:

Comparative examinations made between the evidence bullets fired from PALTIK (S & W) Revolver, Caliber .38, SN 1219399 revealed POSITIVE results; said evidence bullet marked "EA" was fired from this particular firearms. (Emphasis ours)

The security guard attendance logbook of San Pedro IV Subdivision was also presented in evidence. Page 45 thereof showed the signatures of Rufo and Restituto opposite the date October 26, 1989. During the hearing, accused Restituto tried to establish that he was a right-handed person and could not be the left-handed gunman alluded to by the prosecution. He signed his name five (5) times before the trial judge.chanroblesvirtualawlibrarychanrobles virtual law library

On the basis of the evidence adduced by the parties, the trial court rendered judgment, finding the accused, Restituto Perciano y Camacho, guilty as charged. The dispositive portion of the Judgment, ¹³dated August 14, 1991, reads:

WHEREFORE, finding accused RESTITUTO PERCIANO y CAMACHO guilty beyond reasonable doubt of the crime of attempted Robbery with Homicide, (said accused) is hereby sentenced to suffer the penalty of RECLUSION PERPETUA, to pay the heirs of the deceased the sum of P50,000.00, without subsidiary imprisonment in case of insolvency, plus all the accessory penalties provided for by law, and to pay the costs.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Hence, this appeal where accused-appellant questions the credibility of the witnesses for the prosecution.chanroblesvirtualawlibrarychanrobles virtual law library

We affirm the judgment of conviction.chanroblesvirtualawlibrarychanrobles virtual law library

Rhodora positively identified the accused-appellant as the gunman. She could not have been mistaken as she was barely half a meter away from accused-appellant when he pulled the trigger on her father. At that time too, the lights inside their Tamaraw vehicle were on. She testified:chanrobles virtual law library

PROSECUTOR BELTRAN:

Q: And after these three persons had hitched a ride with your Tamaraw vehicle being driven by your father, where did you go next?chanrobles virtual law library

A: When we reached Ledesma Court, Visayas the three men asked that my father stopped (sic) the vehicle so that so that they can alight.chanroblesvirtualawlibrarychanrobles virtual law library

Q: And did your father stop the vehicle upon (the) request of these three persons?chanrobles virtual law library

A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q: When your father stopped the vehicle, what happened?chanrobles virtual law library

A: The three men alighted and one of them immediately went to my father's side and pointed a gun at him.chanroblesvirtualawlibrarychanrobles virtual law library

Q: By the way, where were you seated all along while you were coming from your house and passed through Janet Street and up to the time when these three men alighted from your vehicle?chanrobles virtual law library

A: I was beside my father on his right side.chanroblesvirtualawlibrarychanrobles virtual law library

Q: You said that one of the three men who had earlier hitched a ride with your Tamaraw pick up went to your father's side and poked a gun?chanrobles virtual law library

A: Not my father's side, sir. It is right side. On the right side of the Tamaraw.chanroblesvirtualawlibrarychanrobles virtual law library

Q: And poked a gun at whom?chanrobles virtual law library

A: My father.chanroblesvirtualawlibrarychanrobles virtual law library

Q: When this person poked a gun at your father, did you hear them say anything? This man?chanrobles virtual law library

A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q: What did they say?chanrobles virtual law library

A: They said hold up.chanroblesvirtualawlibrarychanrobles virtual law library

Q: And when you heard these persons say hold up, what did you do?chanrobles virtual law library

A: Sir, I looked at the face of the man.chanroblesvirtualawlibrarychanrobles virtual law library

Q: How about your father, what did he do?chanrobles virtual law library

A: It was this way, sir. When he pointed a gun, he immediately fired it.

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Q: Will you be able to identify any or all of these three persons when you see them again?chanrobles virtual law library

A: The one who shot my father I saw him, sir.

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Q: Will you look around the courtroom and see if he is inside the courtroom?chanrobles virtual law library

A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q: Please point to him?chanrobles virtual law library

A: There, sir. (Witness pointing to a man inside the courtroom who gave his name as Restituto Perciano).chanroblesvirtualawlibrarychanrobles virtual law library

Q: Now, more or less, how far were you from the accused when you saw him shot your father?chanrobles virtual law library

A: More or less, half meter.chanroblesvirtualawlibrarychanrobles virtual law library

Q: And will you tell the Honorable Court if there was any light which was coming from inside your vehicle at the time your father was shot?chanrobles virtual law library

A: Yes, sir. There was light inside our Tamaraw.chanroblesvirtualawlibrarychanrobles virtual law library

Q: Did you take a look at the gun or the firearm which was used?chanrobles virtual law library

A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q: Can you describe it to the Honorable Court?chanrobles virtual law library

A: It looked like a revolver.

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Q: I would like to make it of record your Honor, that since about ten minutes ago, the witness has been crying especially immediately after she pointed to the accused. (emphasis ours)

(TSN, February 6, 1990, pp. 6-12)chanrobles virtual law library

Her credibility is enhanced by the fact that she had no ill-motive to testify falsely against the accused-appellant. She did not know accused-appellant before the incident. It is a rule that "when there is no evidence indicating that the principal witness for the prosecution was moved by improper motive, the presumption is that he was not so moved and his testimony is entitled to full faith and credit." ¹⁴Thus, as between the alibi of accused-appellant and the positive declaration of Rhodora identifying the accused-appellant as the gunman, the latter deserves greater credence.chanroblesvirtualawlibrarychanrobles virtual law library

We are not convinced of accused-appellant's claim of innocence. His left hand was positive for gunpowder nitrates. He did not explain the presence of these nitrates. Instead, he tried to prove that he is right handed. But the fact that he is right handed does not negate the possibility that he fired at the victim using his left hand. The gun in question is a .38 caliber pistol which could easily be fired. More importantly, the prosecution had proved that the fatal bullet came from the service gun of accused-appellant.chanroblesvirtualawlibrarychanrobles virtual law library

The evidence that accused-appellant reported for work, on October 26, 1989, at around 8:00 P.M., is not indubitable. Buen Nicol, the custodian of the attendance logbook of the San Pedro IV Subdivision, testified as follows:chanrobles virtual law library

PROSECUTOR ALAMEDA:

Q: Mr. Nicol, do you remember where you were on or about October 26, 1989 at 6:00 o'clock in the evening?chanrobles virtual law library

A: Sir, I could not remember where I was during that time.chanroblesvirtualawlibrarychanrobles virtual law library

Q: And you could not also remember Mr. Nicol if the security guards assigned to the subdivision where you are the board member reported for work on October 26, 1989?chanrobles virtual law library

A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q: And you are not in a position to tell as to whether or not the signature appearing opposite the name Restituto Perciano is the signature of Perciano because you were not present at that time although you are the custodian of this logbook?chanrobles virtual law library

A: They signed, sir, in the morning of October 27.chanroblesvirtualawlibrarychanrobles virtual law library

Q: So, the procedure of these security guards in signing their names in this logbook is that when they reported for example on October 26, 1989, they did not immediately sign their names?chanrobles virtual law library

A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q: And they only signed their names the following day, October 27, 1989 in the morning?chanrobles virtual law library

A: IN THE morning.chanroblesvirtualawlibrarychanrobles virtual law library

Q: So that you are not in a position to tell us whether or not these guards reported for duty the day before because they only signed their names the following day?chanrobles virtual law library

A: Yes, sir.

(TSN, December 11, 1990, pp. 13-14).chanroblesvirtualawlibrarychanrobles virtual law library

The unexplained presence of gunpowder nitrates on the left hand of accused-appellant, the slug recovered from the body of the victim which matched the test bullets from accused-appellant's service gun, the nature of the wound sustained by the victim and the positive identification of accused-appellant as the gunman cannot be overcome by the alibi of accused-appellant.chanroblesvirtualawlibrarychanrobles virtual law library

The trial court did not err in finding accused-appellant guilty beyond reasonable doubt of Attempted Robbery with Homicide. Craft was employed in the commission of the offense since accused-appellant and his cohorts pretended that they were only after a free ride when they flagged down the vehicle of the victim. Taking advantage of the goodness of the victim, accused-appellant, albeit unsuccessful, commenced to rob the victim but killed the victim in the process. ¹⁵Considering these circumstances, the trial court was correct in imposing the penalty in the maximum period, that is, reclusion perpetua. ¹⁶chanrobles virtual law library

WHEREFORE, premises considered, the judgment of the trial court, finding the accused-appellant RESTITUTO PERCIANO Y CAMACHO guilty beyond reasonable doubt of Attempted Robbery with Homicide, is AFFIRMED in toto. Accused-appellant is sentenced to suffer the penalty of reclusion perpetua ¹⁷and to pay civil indemnity to the heirs of the victim, EPITACIO AGANAN, in the amount of fifty thousand pesos (P50,000.00). With costs against accused-appellant.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, and Mendoza, JJ., concur.